INHABITANTS OF WEST ROXBURY vs. ENOS M. STODDARD & another. [Note p158]

HOAR, J. 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.

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We shall only have occasion to consider whether the conclusion necessarily follows from the premises; and therefore may assume, without deciding, that the fee of the land is in the plaintiffs. The important questions remain: 1. What are the nature and extent of the rights in great ponds secured to the public by the colony ordinances of 1641-1647? and 2. Did those ordinances affect the title of Roxbury under a grant previously made?

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. Soc. 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 Generall 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.

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The "Body of Liberties" was the result of an attempt to satisfy the people at large, who desired something like a code of written laws as a protection and check upon the unlimited discretion of the magistrates; and at the same time to defer to the desire, on the part of some of the wiser and more prudent leaders of the colony, that many of the most essential regulations which its condition required should obtain the force of law by usage and custom, making them a part of the common law, rather than by express legislation, in order to avoid any direct antagonism with the government in England. 1 Winthrop's Hist. of New England, 322, 323. It was adopted with a declared reference to further examination, revision and amendment, and was not printed with the colony laws. The amendments which concerned the 16th section, as they appear in the edition of the colony laws of 1660, and in the Ancient Charters, 148, were quite material; and were probably adopted in 1647. [Note p166] Great ponds are defined to be those containing more than ten acres of land, and it is provided that no town shall appropriate any great pond to any particular person or persons; and § 4 is as follows: "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 propriety for that end, so they trespass not upon any man's corn or meadow."

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

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sufficient security for the right of passage in boats or upon the ice in winter, for the owners of adjoining lands, and for other persons, where the situation and size of the pond might make it serviceable as a way. It would scarcely be necessary to mention bathing, or the use of the water for washing, or watering cattle, preparation of flax, or other agricultural uses, to all which uses a large body of water, devoted to public enjoyment, would usually be applied. We suppose that many and perhaps most of the large ponds have some common land, or a public way of some kind, lying upon or leading to the shore, by which the public have access to them. In some parts of the country the larger lakes, with their connections, constitute almost the only avenues of transportation and travel, and are as much highways as the navigable rivers.

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

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of the stream, and our own local law appears to have assigned the shores, down to the ordinary low-water mark, to the riparian owners; and the beds of the lakes, with the islands therein, to the public." But in a recent case in the supreme court of New York it was held that a lake measuring less than a mile in width, by five miles in length, and having no navigable outlet, would pass under a grant of a large tract of land which included it in its boundaries. Ledyard v. Ten Eyck, 36 Barb. 102. That state, however, has no statute similar in its provisions to the Massachusetts ordinance above cited.

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

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colony at the time it was enacted. To estimate justly the force of this objection, it is necessary to consider what was then the relation existing between the colonial government and the municipal corporations or quasi corporations which it created. In some cases the grant of land by the general court was to a company of proprietors, who preserved an organization separate from that of the town, and divided the lands proportionately among the settlers who participated in the grant, or sold them to others for the common profit. But in many instances, and, as we suppose, in all where there was not a separate body of proprietors to whom the territory was granted, the town by its establishment became the owner of the land within its assigned limits. Its functions were then of a twofold nature: to distribute the lands among the freemen for the purposes of settlement, reserving such parts as might be deemed requisite for various public uses; and to do its part as a constituent member of the new state, bearing its proportion of the public burdens; clothed with limited powers of self-government in local matters; but amenable to the Commonwealth, and subject to its control and direction. There can be no doubt that from the earliest period the legislature of the colony exercised the unquestioned authority of deciding what public duties should be discharged by the towns, including not only appropriations of money, but of lands. The duty to furnish and build highways, to provide burial grounds, to maintain public worship and schools, with suitable meeting-houses and school-houses, the common custom of setting apart commons and training-fields, afford familiar examples of subjects clearly within the scope of legislative authority. The right to change the boundaries of towns, and to create new ones from the territory of towns already existing, was never questioned. By the provincial statute of 10 Geo. II., Anc. Chart. 505, the obligation to furnish and build at their own expense convenient ways was imposed upon the proprietors of all new plantations. On the 6th of March 1633 the general court ordered "that all the swamps containing above one hundred acres, either belonging to any town or not, shall lie in common for any free inhabitant to fetch wood at seasonable

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times, without prejudice to the inhabitants where the same is, (that swamp only excepted lying within the New Towne pale towards the bay)." 1 Col. Rec. 111. After the passage of the ordinance of 1647, by which flats were annexed to the upland, it was even doubted whether the ordinance did not make void a previous appropriation of portions of the flats by the towns to which they belonged; and on an application by a town to the general court, which set forth that "the aforesaid inhabitants, not being able to resolve themselves, humbly desire the resolution of this honored court, whether the order of the court make void the preceding town order," it was resolved that "The court doth conceive the court's order doth not disannul the order of the town, preceding it." 2 Col. Rec. 284. 3 Col. Rec. 181. 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 different uses which different persons may wish to make of the ponds are so various as to become conflicting, the towns have

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power, by appropriate by-laws, to regulate the use and provide for the public convenience and safety. The cutting of ice is but one of the uses to which the water of the pond may be lawfully applied; and those who resort to it for bathing, boating, skating, fishing or fowling are entitled to equal consideration. If municipal regulations in any particular case prove insufficient, the legislature, as the guardian of the public interests, has ample power to furnish a remedy.

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 where 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

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liberty of cutting ice, being the violation of a public right, is by indictment; and the towns may regulate the use of the ponds by reasonable by-laws, adopted and approved according to the statute; and if these are insufficient, resort must be had to the legislature.

Judgment for the defendants.