131 Mass. 474 | Mass. | 1881
The right of fishing, as well as the right of taking ice, in a great pond, is a public right, which every inhabitant who can obtain access to the pond without trespass may exercise, so long as he does not interfere with the reasonable exercise by others of these and like rights in the pond, and complies with any rules established by the Legislature or under its authority. West Roxbury v. Stoddard, 7 Allen, 158, 170, 171.
The defendant, an inhabitant of the town, came upon the pond from the highway, and fished at a time allowed by the regulations made by the town under the powers conferred upon it by the Legislature. Commonwealth v. Vincent, 108 Mass. 441, 446, 447. And the case stated does not find, nor contain any facts tending to show, that he was fishing in an unreasonable manner, or without due regard to the lawful rights of others.
The plaintiffs had no peculiar title or right in the pond by virtue of being lessees of an ice-house and land upon the shore. Hittinger v. Eames, 121 Mass. 539. They had the same right as others to cut and take ice which was the natural product of the pond; but they had no right, to the exclusion of other public uses, to the occupation of any part of the pond for the purpose by artificial means of increasing the thickness of the ice. At the time of the acts of which they complain, they had not cut any ice, nor were they engaged in cutting, or otherwise in the actual possession of any; but they had suspended their operations for at least a day and two nights.
Under these circumstances, they have no cause of action against the defendant. The judgment of the Superior Court in their favor must therefore be reversed, and
Judgment rendered for the defendant.