106 A. 865 (Me. 1919), In re Opinions of the Justices

Citation:106 A. 865, 118 Me. 503
Judge Panel:Spear, J., dissenting in part.
Case Date:June 06, 1919
Court:Supreme Judicial Court of Maine

Page 865

106 A. 865 (Me. 1919)

118 Me. 503


Supreme Judicial Court of Maine.

June 6, 1919

Page 866

Spear, J., dissenting in part.

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Under the peculiar, but settled, law of Maine and Massachusetts, originating in the Colonial Ordinance of 1641-47, ponds of more than 10 acres in extent are designated as great ponds. Whatever doubt might otherwise arise from a critical study of the subject as a matter of legal history, it must now be accepted as the common-law doctrine in Maine that the state holds these ponds in trust for the use of the people of the state, together with the right to control and regulate the waters thereof. Barrows v. McDermott, 73 Me. 441; Brastow v. Rockport Ice Co., 77 Me. 100; Fernald v. Knox Woolen Co., 82 Me. 56, 19 A. 93, 7 L.R.A. 459; Auburn v. Water Power Co., 90 Me. 584, 38 A. 561, 38 L.R.A. 188; Conant v. Jordan, 107 Me. 227, 77 A. 938, 31 L.R.A. (N. S.) 434. The right of the individual to fish and fowl in these waters, provided he can do so without committing trespass upon the cultivated land of littoral proprietor (Barrows v. McDermott, supra), the right of boating, bathing, cutting ice (Barrett v. Rockport Ice Co., 84 Me. 155, 24 A. 802, 16 L.R.A. 774), and the supplying of water to a municipality for domestic uses, have all been recognized as among the public purposes which are within the regulation and control of the state. The state's title in great ponds is the same in its origin as in tidal waters. The state holds, and can control, the use of both for public purposes, and it is perhaps for the better protection of these rights in great ponds that the private ownership of littoral proprietors has been confined to low-water mark, and the title to the land below that line-that is, to the bed of the great ponds-has been declared to be in the state. It is in this qualified sense that the people are said to own the great ponds within our borders.

Moreover, since the people as beneficiaries possess these public rights, the Legislature, which represents the people, has the power to abridge these rights and to grant them, or any portion of them, to private individuals or corporations, if it sees fit so to do. Thus the Legislature of Massachusetts in 1869 (Pub. Acts 1869, c. 384; Pub. St. Mass. c. 91, §§ 10, 11) gave to the littoral proprietors the exclusive right of fishery in ponds of less than 20 acres in extent, thereby surrendering the right of fishery which all the public had previously enjoyed in ponds of between 10 and 20 acres in extent, and the Massachusetts court subsequently recognized the validity of the act. Commonwealth v. Vincent, 108 Mass. 441; Commonwealth v. Tiffany, 119 Mass. 300; Commonwealth v. Perley, 130 Mass. 469. So the Legislatures of this state and of Massachusetts have granted to private and to municipal corporations the right to take water from a great pond for a public water supply. Auburn v. Union Water Power Co., 90 Me. 576, 38 A. 561, 38 L.R.A. 188; American Woolen Co. v. Kennebec Water District, 102 Me. 153, 66 A. 316; Watuppa Reservior Co. v. Fall River, 147 Mass. 548, 18 N.E. 465, 1 L.R.A. 466. In like manner our Legislature has often granted to private corporations the right to raise, store, maintain, and

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control the waters of great ponds for manufacturing purposes; the corporations paying damages for all flowage caused thereby upon the land of littoral proprietors. By virtue of these grants many of these corporations have made large expenditures in the construction of dams, in the erection of industrial plants, and in the acquisition of flowage rights, which flowage rights have become part and parcel of their vested property rights. While the state may hold the waters of great ponds in trust for the people, and may regulate them as it sees fit, while the littoral proprietors may use them for their private purposes as hereinafter stated, while the Legislature may grant their use to water power companies to be controlled for manufacturing and industrial purposes, or to municipalities for domestic and other uses regardless of damages to millowners on the outlet streams (American Woolen Co. v. Kennebec Water District, 102 Me. 153, 66 A. 316), yet it has never been suggested that the state had the right to compel either the littoral proprietor to pay for the uses to which he may lawfully put the waters of such pond by reason of his having access to its shore, as distinguished from that of the general public, nor that the millowner on the outlet stream could be compelled to pay for the use of the waters that constitute the natural flow of the stream. We think such millowner is entitled to that use without paying compensation therefor, although in some cases its full enjoyment may be secondary to that of the domestic needs of a municipality or other public uses.

There seems to be some misapprehension as to these so-called public rights in great ponds. They are often spoken of as if they were sacred and inalienable. Not so. Under the original ordinance they could not be conveyed by a town without legislative authority; nor can they now. Attorney General v. Revere Copper Co., 152 Mass. 444, 25 N.E. 605, 9 L.R.A. 510. That is the only limitation upon their transfer. They can be granted and conveyed, as they often have been, by the Legislature, which represents the people. What is owned by the people may be transferred by the Legislature, unless prohibited by the Constitution, and no such constitutional inhibition barricades the way here. So much for public rights in great ponds.

Littoral Proprietors.

Every individual or corporation owning land bordering upon a great pond owns to the natural low-water mark of the pond. Wood v. Kelley, 30 Me. 47; Paine v. Woods, 108 Mass. 160; Fay v. Salem & Danvers Aqueduct Co., 111 Mass. 28. Such owner has at all times a right of access to the pond for any of the purposes for which he may use the waters, such as bathing, boating, fishing, fowling, agricultural and domestic uses, and the cultivated lands around the pond are protected against the passage of any person who would gain access thereto for the exercise of these public rights. Ordinance of 1641-47; Barrows v. McDermott, 73 Me. 441. No person or corporation, without Legislative authority, either general through the Mill Act, or special through a private act, may draw down the waters of a great pond below natural low-water mark, nor raise and hold them above their natural level. If drawn below the natural low-water mark, a strip of land belonging to the state would separate the littoral proprietor's lot from the water of the pond and cut off his access thereto; and if raised above the natural level, a portion of the land adjacent to the low-water mark would be either continuously or at times covered with water, when in the natural state it would be available for his own use. He is entitled to the full enjoyment of his property in its natural state. Stevens v. King, 76 Me. 197, 49 Am.Rep. 609; Fernald v. Knox Woolen Co., 82 Me. 48, 19 A. 93, 7 L.R.A. 459. He cannot be deprived of that full enjoyment, except it be taken from him for public uses under the exercise of the right of eminent domain, with the accompanying payment of just compensation.

Riparian Proprietors.

The legal rights of the riparian proprietor along the rivers and streams flowing from great ponds are equally well settled. Where lands border upon a nontidal stream, although, it may be floatable for logs or boats, each of the riparian proprietors owns the fee in the land which constitutes the bed of the stream to the thread of the stream, "ad medium filum aquae," as it was anciently expressed, and if the same person owns on both sides he owns the entire bed, unless, of course, it is excluded by the express terms of the grant itself. He owns the ice which forms in winter (Wilson v. Harrisburg, 107 Me. 207, 77 A. 787), "with the single qualification that it is not to be taken in such quantities as to appreciably diminish the head of water at the dam below" (Stevens v. Kelley, 78 Me. 445, 451, 6 A. 868, 57 Am.Rep. 813). The Legislature cannot empower a municipality to take the ice, even for domestic purposes, without paying just compensation therefor. Auburn Ice Co. v. Lewiston, 109 Me. 489, 84 A. 1004. The riparian proprietor has the right to take fish from the water over his own land, to the exclusion of the public. Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am.Dec. 333. He does not own the water itself, but he has the right to the natural flow of the stream, and the right to the use and benefit of it, as it passes through his land, for all the domestic and agricultural purposes to which it can be reasonably applied, and no proprietor above or below can unreasonably divert, obstruct

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or pollute it. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 554, 18 N.E. 465, 1 L.R.A. 466; Auburn v. Water Power Co., 90 Me. 576-585, 38 A. 561, 38 L.R.A. 188.

The only limitation upon the absolute rights of riparian proprietors in nontidal rivers and streams is the public right of passage for fish, and also for passage of boats and logs, provided the streams in their natural condition are of sufficient size to float boats or logs. Subject to this qualified right of passage, nontidal rivers and streams are absolutely private. Wadsworth v. Smith, 11 Me. 281, 26 Am.Dec. 525; Pearson v. Rolfe, 76 Me. 386.

So, too, the riparian proprietor may avail himself of the momentum of the stream as power for manufacturing and industrial purposes, provided, of course, the water is not thereby unreasonably detained or essentially diminished. Blanchard v. Baker, 8 Me. (Greenl.) 253-266, 23 Am.Dec. 504. He can build dams upon his own land to develop power for milling or manufacturing purposes, subject to the provisions of the Mill Act and to the...

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