4. The State can constitutionally au- It is plain that it is the purpose of this statthorize a city or town to use the waters of a ute to assert the rights of the State to use the great pond for public purposes without making waters of the great ponds for public purposes, compensation for damages inflicted upon the and to confer upon cities and towns the right owners of land or privileges upon a stream flow-so to use the waters, without making compening from such great pond.

Bills in equity praying that the court declare unconstitutional and void the Act of the Legislature of Massachusetts (Acts 1886, chap. 355), giving to the City of Fall River the right to take for domestic purposes, the extinguish-vided into a succession of water privileges ment of fires, and public uses, 1,500,000 gallons of water daily from the North Watuppa ponds in addition to the amount already taken under a previous Act (Act 1871), without liability to pay any damages other than the State would be obliged to pay, etc. The bill also prayed for an injunction perpetually restraining the defendant, its servants, agents and attorneys from taking any of the waters of said ponds. Both cases were heard in the superior court upon agreed facts, the substance of which appears in the opinion; a decree was entered dismissing both bills, and the plaintiffs appealed.

|

Lynnfield and Danvers.

Gray, 451, 528, note; West Roxbury v. Stoddard, 7 Allen, 158.

If an individual owns a pond which has a natural stream flowing from it, the land bordering on which is owned by others by a title in fee without any limitations, it may be that he cannot lawfully fill up the pond or divert its waters by artificial channels or conduits to the substantial injury of those who own land on the stream.

Com. v. Roxbury, 9 | shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town or the general court have otherwise appropriated them; Provided, That no town shall appropriate to any particular person or persons any great pond containing more than 10 acres of land, and that no man shall come upon another's propriety without their leave, otherwise than as hereafter expressed. The which clearly to determine, it is declared that in all creeks, coves and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining, shall have propriety to the low-water mark, where the sea doth not ebb above 100 rods, and not more wheresoever it ebbs further; Provided, That such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men's houses or lands. And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man's propri ety for that end, so they trespass not upon any man's corn or meadow." Ancient Charters & Laws, 148.

Where lands border upon a natural stream each of the proprietors owns the fee to the thread of the stream, and has a right to the nat ural flow of the stream, subject to the right of every other proprietor to make such use of the water as it passes through his land as is not unreasonably injurious to all the others who, with himself, have a common right in the stream. Each proprietor has the right to the benefit of it, as it passes through his land, for all the useful purposes to which it may be applied; and no proprietor above or below has the right to unreasonably divert, obstruct or pollute it. Johnson v. Jordan, 2 Met. 234; Elliot v. Fitchburg R. Co. 10 Cush. 191; Cummings v. Barrett, Id. 186; Tyler v. Wilkinson, 4 Mason, 397. But where a man owns a pond and the whole of the stream flowing from it, he would probably have the right to divert and use the waters, although it sensibly diminishes the natural flow of the water in the stream; and if he sells the land on the stream, he can reserve to himself the right so to divert and use the waters.

Without going into details, this is a brief statement of the rights of private individuals in ponds and streams. But the right of the Commonwealth is of a different nature.

ters.

The Colonies and the Provinces derived their rights from the King under their several charThese charters revested in the grantees, not only the right of soil, but also large powers of government, and the prerogatives of the Crown in the seashores, bays, inlets, rivers and other property which were held for the use and benefit of all the subjects. As stated by Chief Justice Shaw, the effect of the charters was "to grant to the company both the jus privatum and the jus publicum of the Crown; the jus privatum or title to the land to be held in fee, parceled out to corporations and individuals, to be held in fee, subject to the rules of the common law, as private property; and the jus publicum, or all those rights of the Crown in the sea, seashore, bays and arms of the sea where the tide ebbs and flows, in trust for public use of all those who should become inhabitants of said territory and subjects of said government." Com. v. Roxbury, 9 Gray, 451, 483; Com. v. Alger, 7 Cush. 53.

These rights and powers-both the jus privatum and the jus publicum-to the extent to which they existed either in the King or Parliament, revested in the colonial and provincial governments, and, after the Revolution, vested in the Commonwealth, including all the prerogatives and rights of the Crown and powers of regulation which had at any time previously been held and exercised by the Government of England. Com. v. Alger, supra.

The Colony Ordinance of 1641-47, provides that "Every inhabitant who is an householder

This is now generally spoken of as the Colony Ordinance of 1647, although parts of it were enacted in different years. It has continued in force through the provincial and state gov ernments, except that by the present laws great ponds are defined to be ponds, the area of which is more than 20 acres, and except that recent legislation has made some changes as to the rights in great ponds which do not affect the question before us. Stat. 1888, chap. 318; Stat. 1869, chap. 384; Pub. Stat. chap. 91, SS 10, 11, etc. And it is in force throughout the whole territory of this State, including those parts which were formerly the Colony of Plymouth, Nantucket and Dukes County, and also in Maine, although none of these were under the jurisdiction of Massachusetts Bay when it was enacted. Barker v. Bates, 13 Pick. 255; Mayhew v. Norton, 17 Pick. 357; Weston v. Sampson, 8 Cush. 347.

It is true that it did not extend to those places by any positive enactment now known, passed after the union of the Colonies under the Charter of 1692, but it has been universally accepted and regarded as establishing a rule of property throughout the State. As stated by Chief Justice Shaw in Barker v. Bates: "Though the rule in question cannot be traced to this source, as a rule of positive law, we are of opinion that it is still a settled rule of property in every part of the State, and founded upon a basis quite as firm and immovable; that being a settled rule of property, it would be extremely injurious to the stability of titles, and to the peace and interest of the community, to have it seriously drawn in question."

The cases we have cited deal with questions as to the title and rights to the seashore; but the laws of Massachusetts from the earliest times have regarded the rights of the public in the great ponds as similar to their rights in the seashore. Drury v. Natick, 10 Allen, 169, 179; Com. v. Roxbury, 9 Gray, 451, 528, note; Paine v. Woods, 108 Mass. 160, 169. The or

dinance dealt with the subject of the great ponds as well as with the seashore, and it established a rule of property as to their ownership and uses.

Although fishing and fowling are the only rights named in the ordinance, it has always been considered that its object was to set apart and devote the great ponds to public use, and that "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." West Roxbury v. Stoddard, 7 Allen, 158.

the right to draw water from a great pond, providing for the payment of damages suffered by anyone by the taking of the water. The plaintiff was a littoral proprietor, and claimed that his house was rendered uncomfortable and unfit for the purposes for which it was designed. But the court held that he could not recover damages for this, as he had no right in the pond or its waters, and because, as stated in the opinion, great ponds are public property, the use of which for taking water or ice, as well as for fishing, fowling, bathing, boating, or skating, may be regulated or granted by the Legislature at its discretion."

In the case at bar, by the Act of 1886, the Legislature authorizes the City of Fall River to draw daily 1,500,000 gallons of water from the North Watuppa pond; and to "apply the water taken under this Act to all domestic uses, the extinguishment of fires, and to the public uses of the city." These are all public purposes. The Legislature, acting on the conviction that an abundant supply of pure water to the people is of paramount importance, has deemed it to be a wise public policy to appropriate the waters of this pond to those public uses with out making compensation to those who, own

Under the ordinance the State owns the great ponds as public property, held in trust for public uses. It has not only the jus pricatum,-the ownership of the soil,-but also the jus publicum, and the right to control and regulate the public uses to which the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil or in the waters, unless it be by grant from the Legislature. Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass.ing the land on the natural stream flowing from 222.

it, have been accustomed to use the water for power as it flows through the stream. Such owners have no vested rights in the waters of the pond, and a majority of the court is of the opinion that the Commonwealth may thus apIn-propriate the waters by its direct action, or may authorize a city or town to do so, without being legally liable to pay any damages to the littoral owners on the pond or on the stream.

The power of the Legislature to regulate the rights of fishing and other public rights is very broad. Thus, it may regulate the time and manner of fishing in the sea within its limits, and may grant exclusive rights of fishing. stances of the exercise of this power in regard to the great ponds are found in the various statutes leasing such ponds to individuals, which have been held to be valid, although they grant exclusive rights to individuals and exclude others from the exercise of rights to the use of the ponds to which they were before entitled. Com. v. Vincent, 108 Mass. 441; Com. v. Tiffany, 119 Mass. 300; Cole v. Eastham, 133 Mass.

65.

In view of the rights and powers of the State in and over the great ponds, it seems clear that the rights of proprietors owning land either on the pond or on any stream flowing from it cannot be decided by the rules of the common law applicable to ordinary streams. They must be determined with reference to the ordinance and the rule of property established by it; and we are of opinion that they must be regarded as subordinate, and subject to the paramount rights of the public declared by the ordinance. All who take and hold property liable to be affected by this rule of property, take and hold under and in subordination to it. Each grant carries with it an implied reservation of these paramount rights, unless the terms of the grant exclude such reservation. So that the grant, from the State, of land upon a stream flowing from a great pond did not convey an unqualified fee with the right to enjoy the usual and natural flow of the stream, but a qualified right, subject to the superior right of the State to use the pond and its waters for other public uses if the exigencies of the public, for whom it holds the pond in trust, demand it.

The case of Fay v. Salem & D. Aqueduct Co. 111 Mass. 27, is similar to the case at bar. In that case the defendant was an aqueduct corporation to which the Legislature had granted

As this case depends upon the effect of the Colony Ordinance, the decisions in England cannot be of assistance to us. They depend upon the common law, which, as we have said, is changed by the ordinance. The same may be said of the decisions in the other States of this country, most of which are governed by the rules of the common law. In New York and Pennsylvania it has been held that the rules of the common law do not apply to such great navigable streams as the Hudson, Mohawk and Delaware Rivers, though they may not be tidal rivers throughout; that the title of such streams is in the government in trust for the people, and that the State may use the waters, or authorize their use, for the purposes for which they are held in trust, without any compensation to riparian proprietors who are damaged by such use. People v. Canal Appraisers, 33 N. Y. 461; Varick v. Smith, 9 Paige, 547; Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71; Rundle v. Delaware & R. Canal Co. 55 U. S. 14 How, 80 [14 L. ed. 335].

The industry of counsel has furnished us with references to between two and three hundred Water Acts passed by the Legislature, including some in which the right to use the waters of great ponds is granted, in most of which provision is made for compensation to those whose mill privileges or water rights are injured. These show that the policy of the State has heretofore been to provide such compensation; but they do not show that the State has not the power to use the waters without compensation. The Act we are considering

seems to make a change in the public policy | streams below, without compensation to the in regard to the waters of the great ponds, as riparian owners. since its enactment several other Acts have been passed containing the same provisions as to damages.

The plaintiffs contend that the charter of the Watuppa Reservoir Company operated as a grant to the company of the right to use and control the waters of the Watuppa ponds for the purposes of power and for the benefit of the manufacturing establishments on the Fall River, of which it was and is composed. By its charter this company was granted the "power to make reserves of water in the Watuppa ponds, so called, by erecting a dam across the outlet of said ponds in the Town of Troy in the County of Bristol, so as to raise the water in said ponds 2 feet higher than the dam already erected by the Troy Cotton & Wool Manufactory in said Town of Troy, and to draw off said reserved water in such quantities, at such times and in such manner, as they shall judge to be most for the interest of all concerned." Stat. 1826, chap. 31.

The usufruct of water in a watercourse is inherent in the ownership of the land through which the water flows. It is often the prin cipal element of value in the real estate of which it is a part. Lord Wensleydale says in Chasemore v. Richards, 7 H. L. Cas. 349, 382: "It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure natura, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner."

Chief Justice Shaw, in Johnson v. Jordan, 2 Met. 234, 239, uses these words: "Every person through whose land a natural watercourse runs has a right, publici juris, to the benefit of it, as it passes through his land, to all the useful purposes to which it may be applied... It is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appur tenance, but as parcel."

We do not think that this can be construed as granting any part of the pond or any absolute and exclusive right to use and control the waters of the pond. It does not do this in terms or by necessary implication. It is a familiar rule that grants made by the government are to be construed in favor of the grantor, and this is especially true when they affect the in-law. terests of the people which are held in trust by the government.

The State is not presumed to grant away such rights or franchises unless it is done in clear terms or by an implication which is strictly necessary. Com. v. Roxbury, 9 Gray, 451, 528, note; Martin v. Waddell, 41 U. S. 16 Pet. 367, 411 [10 L. ed. 997]: Susquehanna Canal Co. v. Wright, 9 Watts & S. 9.

The charter does not grant the pond or the waters in it. The right to use the surplus water is of value, though it is held subject to any future use the State may make of the pond. There is no necessary implication of a grant of the exclusive use of the waters. The charter gives a right to raise the level of the pond and to use the water as it flows from it; but there is nothing to indicate the intention of the State to grant away the public rights in the pond. Whether it be construed as a revocable license or as a grant of a vested right, the company | took and holds its rights subject to the paramount right of the government to use the water for the public purposes for which it was held in trust.

For these reasons, a majority of the court is of the opinion that these bills cannot be maintained.

Bills dismissed.

Knowlton, J., dissenting:

In these cases I am unable to agree with the majority of the court, and it seems proper that I should state the principles by which I think the decision should be governed.

The cases bring in question the right of a riparian proprietor to the use of the water of a running stream. We have no concern with rights in the waters of great ponds, except in connection with the contention that through these ponds water may be diverted from the

In Gardner v. Newburgh, 2 Johns. Ch. 162, 165, Chancellor Kent says: "A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold, of which no man can be disseized but by lawful judgment of his peers, or by due process of This is an ancient and fundamental maxim of common right to be found in Magna Charta."

The permanent deprivation of this right is a taking or destruction of property; and à diversion of water from a stream, so as to prevent its running in its natural course, is within the constitutional provision for the protection of property. As against riparian proprietors below, not even the State can authorize such a diversion without a provision for their com pensation. This doctrine rests upon a principle of universal law, recognized from the earliest times, not only in this country and in England, but in Continental Europe. It is established by such a weight of authority that it is no longer fairly open to question. Gardner v. Newburgh, 2 Johns. Ch. 162, 165; Smith v. Rochester, 92 N. Y. 463; Clinton v. Myers, 46 N. Y. 511; Pumpelly v. Green Bay & M. Canal Co. 80 U. S. 13 Wall. 166 [20 L. ed. 557]; Harding v. Stamford Water Co. 41 Conn. 87; Cooper v. Williams, 4 Ohio, 253; Lee v. Pembroke Iron Co. 57 Me. 481; Grand Rapids Boom. Co. v. Jarvis, 30 Mich. 308; Arimond v. Green Bay & M. Canal Co. 31 Wis. 316; Eaton v. Boston, C. & M. R. Co. 51 N. H. 504; Trenton Water Power Co. v. Raff, 36 N. J. L. |335; St. Helena Water Co. v. Forbes, 62 Cal. 182; Hooker v. New Haven & N. H. Co. 14 Conn. 146.

In Pennsylvania it is held that riparian proprietors take subject to a paramount right in the State to divert water for navigation, and perhaps for other purposes. But the decisions of that State depend in part upon a construction of the original grants which are said to have extended only to the banks of the great rivers, and they differ from those of England and of most of the other States. Rundle v. Delaware & R. Canal Co. 55 U. S. 14 How. 80 [14 L. ed. 335]; Shrunk v. Schuylkill Nac. Co. 14 Serg. &

1888.

WATUPPA RESERVOIR Co. v. FALL RIVER.

R. 71; Wilts & B. Canal Co. v. Swindon Water
Works Co. L. R. 9 Ch. App. Cas. 451.

But the right of the State to regulate the use by the public of the water-ways within its limits, and to control rivers for that purpose, is not involved in the cases at bar; for Fall River is in no sense a navigable stream, and the acts complained of have no connection with navigation.

of riparian proprietors upon running streams to have the water flow in its natural course. In construing it we must consider the situation of the country at the time it was passed: A large number of water courses in this Commonwealth find their sources in great ponds. Private grants must have been made upon some of these streams prior to 1641. Upon the construction of this legislation contended for by Apart from the Body of Liberties of 1641 the defendant, it would have been unconstituand the Ordinance of 1647, which I shall pres- tional, as against these grants; not indeed in ently consider, neither an individual nor the violation of a written constitution, for there State has any better right to divert water from was none; but it would have been contrary to Fall River by drawing it from Watuppa ponds the principles of right which lie at the foundathan by drawing it from the river itself below tion of all constitutions, and which were then Can it be the ponds; for the river and the ponds are as vigorously regarded as if they had been emparts of a natural water course through which bodied in a written constitution. the water passes directly from its sources to the supposed that our forefathers, zealous as they sea. Together they constitute a single system were in the encouragement of the erection of compensation, rights and natural feature of the country, the pres- mills, intended by these provisions to take from ervation of whose form and identity is essen- individuals, without tial to the enjoyment of all the property bor- which they had acquired under previous grants As against riparian to have water flow through their lands forever? dering upon their waters. owners below, every reason which forbids the Can it be supposed that, without express referdiversion of water from a swiftly flowing ence to the subject, they intended their legislastream is equally strong to prevent diversion tion as an incumbrance upon all lands thereafter where the water moves more slowly on its way to be granted upon watercourses flowing from to its outlet. And this has been distinctly ad great ponds, such that the grantees would be judicated in cases of high authority, and, so far liable at any time, at the will of the Colony, to Gard- have the character of their property wholly es I am aware, without contradiction. ner v. Newburgh, 2 Johns. Ch. 162, 165; Smith changed, and the bed of their streams left dry? v. Rochester, 92 N. Y. 463; Clinton v. Myers, On the contrary, it seems to me that these pro46 N. Y. 511; Hebron Gravel Road Co. v. Harvey, visions looked to the preservation of the natural 90 Ind. 192; Dudden v. Guardians of the Poor, features of the country, and did not even hint 1 Hurlst. & N. 627; Howe v. Norman, 13 R. I. at the creation by the Colony of a right in itself 488; Shaffer v. Marthaler, 34 Minn. 487; West to deprive real property not referred to of elev. Taylor (Oreg.) 13 Pac. Rep. 665. See also ments of value naturally belonging to it. They dedicated the great ponds to the public. They Cummings v. Barrett, 10 Cush. 186. gave to all the right of boating and fishing, and they reserved to the Colony the property in the ponds themselves, the better to regulate these and other kindred public rights for the common good.

"

It remains to inquire whether the Body of Liberties of 1641 and the Ordinance of 1647 changed the common law as to the rights of riparian proprietors upon streams which are supplied in whole or in part by the waters of Undoubtedly the State may use and congreat ponds. This legislation was first printed in the edition of 1682 of the Colonial Laws, trol these ponds in any reasonable way for which has recently been reprinted by the City the preservation and regulation of these rights. of Boston, and it appears under the title of But such use and control must not be inconSection 2 is as follows: sistent with the continued existence of the rivers "Liberties Common.' "Every inhabitant who is an householder shall and streams which have been accustomed to have free fishing and fowling in any great flow from them. Doubtless the State, as proponds, bays, coves and rivers, so far as the sea prietor, may appropriate them to any other use ebbs and flows, within the precincts of the town which does not interfere with the ordinary where they dwell, unless the freemen of the rights of proprietors upon outlet streams along same town or the general court have otherwise whose lands the waters flow. But as proprieappropriated them; Provided, That no town shall tor the State has no greater right than any appropriate to any particular person or persons other proprietor would have, as against the any great pond containing more than 10 acres of owners upon these streams,-unless, indeed, its land, and that no man shall come upon another's right of regulation and control for the protecpropriety without their leave, otherwise than as tion of public rights secured by the ordinance hereafter expressed. . . And for great ponds be deemed an incident of ownership, and not lying in common, though within the bounds of merely of sovereignty. This view seems in West Roxbury v. some town, it shall be free for any man to fish harmony with all the numerous decisions which and fowl there, and may pass and repass on foot have dealt with the subject. through any man's propriety for that end, so Stoddard, 7 Allen, 158; Com. v. Alger, 7 Cush. they trespass not upon any man's corn or mead-53; Attorney-General v. Jamaica Pond Aqueduct OW." It bears date 1641-47. Its purpose seems Co. 133 Mass. 361; Gage v. Steinkrauss, 131 to have been to secure to all the people certain Mass. 222; Rowell v. Doyle, 131 Mass. 474, 476; common rights in the great ponds, and to resi- Hittinger v. Eames, 121 Mass. 539; Com. v. Vindent householders similar rights in the bays, cent, 108 Mass. 441; Fay v. Salem & D. Aqueinlets and navigable rivers of the Common- duct Co. 111 Mass. 27; Berry v. Raddin, 11 wealth. It contains nothing which, by impli- Allen, 577; Cummings v. Barrett, 10 Cush. 186, cation even, seems intended to limit the right | 188; Potter v. Howe, 2 New Eng. Rep. 167, 14 ·