89 Mass. 158 | Mass. | 1863
The principal positions upon which the plaintiffs rely to maintain this action are these :
That by the act of May 3,1636, the territory which includes Jamaica Pond was granted to the town of Roxbury ;
That by this grant, and the authority conferred on towns by the act of March 3, 1635, (1 Col. Rec. 172,) as interpreted by the act of March 18, 1684, (5 Col. Rec. 470,) the fee of the land on which the pond lies, including the water of the pond, vested in that town ;
That possession and ownership of the pond have been held and exercised by the town of Roxbury under the grant;
That the title of Roxbury, when West Roxbury was set off from it as a new town, passed to the plaintiffs by virtue of the act of separation, and of the deed dated December 24, 1851;
So that the plaintiffs have a sufficient title to support an action of tort in the nature of trespass quare clausum fregit against any person who has entered upon the pond and cut and carried away ice without their permission, and in violation of an express prohibition.
The first provision relating to great ponds is found in the Body of Liberties, § 16, supposed to have been adopted in 1641 — 8 Mass. Hist. Soe. Coll., 3d Series, 219 : “ Every inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and bayes, coves and rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same towne or the Generali Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.”
The great purpose of this article, as was said in Commonwealth v. Alger, 7 Cush. 68, was to declare a great principle of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free. But as originally adopted, it is to be noticed that the privilege of free fishing and fowling was confined to householders within the limits of the town where they reside, and that the right to go upon any man’s “proprietie” without his permission is expressly excluded. The exception of those ponds, bays, coves and rivers which the freemen of the town or the general court had otherwise appropriated is also noticeable, as leading to the inference that such appropriations had in some cases been made. The only instance which the colony records furnish is the grant to John Humfry of “500 acres of land & a freshe pond, with a little ileland conteyneing aboute two acres,” on the 6th of May 1635. 1 Col. Rec. 147. The land was not to be taken within five miles of any town; and it was agreed that the inhabitants of Salem and Saugus might build storehouses on the island, and lay in provisions there for use in time of need.
We think it clear that by this ordinance it was intended to devote the great ponds to public use. Cummings v. Barrett, 10 Cush. 188. We are not aware that this law has ever been altered. They were not thenceforth to be appropriated to the use of any particular person or persons, but were declared to be “lying in common.” The right of all persons to resort to them for fishing and fowling, the only use which at that time would seem to have been considered of appreciable value, was explicitly secured. With this was granted the right of passage even over private lands, excepting only such as were devoted to annual crops. The lying in common would be of itself a
The uses which may be made of the water of ponds and lakes in Massachusetts, by littoral proprietors, have never been judicially determined; but by long and well established usage they are undoubtedly numerous. Cummings v. Barrett, 10 Cush. 188. With the growth of the community, and its progress in the arts, these public reservations, at first set apart with reference to certain special uses only, become capable of many others which are within the design and intent of the original appropriation. The devotion to public use is sufficiently broad to include them all, as they arise.
The rules of law which apply to questions of boundary on rivers have never been considered applicable to the great lakes or fresh water ponds. The boundary on a natural pond extends only to low-water mark. Waterman v. Johnson, 13 Pick. 261. The State v. Gilmanton, 9 N. H. 461. And it was said by Chancellor Walworth, in the case of Canal Commissioners v. The People, 5 Wend. 546, 547, in speaking of the different construction which the common law gives to the boundaries in grants upon tide-water and upon streams which are not navigable, that “ the principle itself does not appear to be sufficiently broad to embrace our large fresh water lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of the tide nor thread
It would seem to afford some confirmation of the opinion that the ordinance of 1647 was designed to establish a large and important public right, that the provision concerning ponds is included in the same chapter of the colony laws which secures the right of free speech in courts and town meetings, and the freedom of emigration, and which regulates the respective rights of littoral proprietors and of the public upon the sea shore. Anc. Chart. 148, 149. And the usage and practice under the ordinance seems to have been consistent with the understanding that the ponds were public property. There is no adjudged case in which any right in them, adverse to the public, has ever been recognized ; and in the cases in which the water has been taken for the supply of towns and cities under legislative authority, we are not aware that any private ownership or title to the water in any town or city has been asserted and maintained as a ground of claim for damages. Such a claim might have been made, if it had been thought tenable, in respect to this very pond, when it was used to supply an aqueduct for the city of Boston, under St. 1794, c. 55; the rights of the town of Roxbury being specially excepted from the operation of the act.
But it is argued for the plaintiffs that, as the territory granted to Roxbury in 1636 included the pond within its boundaries, the ordinance of 1647 could have no application to it; either because the Commonwealth had no power to dispose of property once granted to a town, or because the ordinance is not to be construed as operating upon ponds which did not belong to the
The towns were public bodies, organized for public purposes; and any property granted to them, which had not been conveyed to private persons, they might rightfully, by the law and usage of the colony, be required to devote to such public uses as the legislative authority should, by general laws, designate and determine. Against the right of the public, it is manifest that no adverse title could be acquired or maintained by the town of Roxbury, by reason of any of the acts indicative of ownership which are stated in the report. They were not continuous, occurred at considerable intervals of time, and were not in their nature such exclusive acts of possession as would have any tendency to show a termination or relinquishment of the public use.
It will not follow, from the conclusion to which we come that the plaintiffs cannot maintain this action, that the defendants can lawfully cut and carry away ice from the pond to any extent and in any manner that they may choose. The right of any individual to use for his own pleasure or profit such a place of public resort must be limited by the rule that the similar right of others is not to be impaired or infringed. But if the defendants encroach upon the rights of others, the remedy is by indictment. And if, in thickly settled neighborhoods, the dif ferent uses which different persons may wish to make of the ponds are so various as to become conflicting, the towns have
The result of all the considerations of the court upon the questions submitted may be recapitulated in these propositions :
1. Great ponds, containing more than ten acres, which were not before the year 1647 appropriated to private persons, were by the colony ordinance made public, to lie in common for public use.
2. This ordinance applied to all these ponds, whether at that time included within the territory granted to a town, or to any body of proprietors for the plantation of a town, or not then granted by the government of the colony, if they had not then been appropriated to particular persons, either by the freemen of the town or by the general court.
3. No possession adverse to the public right could be acquired or held by the town of Roxbury by means of any of the acts and votes set forth in the report.
4. Fishing, fowling, boating, bathing, skating or riding upon the ice, taking water for domestic or agricultural purposes or for use in the arts, and the cutting and taking of ice, are lawful and free upon these ponds, to all persons who own lands adjoining them, or can obtain access to them without trespass, so far as they do not interfere with the reasonable use of the ponds by others, or with the public right, unless in cases wliere the legislature have otherwise directed.
5. The town of West Roxbury had no such property in the ice on Jamaica Pond as would enable them to maintain this action, even if the fee of the pond be considered to be in the town.
6. The remedy for any unreasonable or excessive use of the
See 3 Allen, 513, note; 7 Cush. 67.