Barrett v. Rockport Ice Co.

• Decision Date: 29 December 1891
• Citation: 84 Me. 155,24 A. 802
• Parties: BARRETT v. ROCKPORT ICE CO.
• Court: Maine Supreme Court

24 A. 802

84 Me. 155

BARRETT

v. ROCKPORT ICE CO.

Supreme Judicial Court of Maine.

Dec. 29, 1891.

(Official.)

Report from supreme Judicial court Knox county.

Trespass by George H. M. Barrett against the Rockport Ice Company. On report. Judgment of nonsuit.

W. H. Fogler, for plaintiff.

C. E. & A. S. Littlefield, for defendant.

VIRGIN, J. This is an action for cutting and carrying away more or less of 15 acres of ice from Lily pond. The case comes up on report with the stipulation that, if the action is maintainable, it is to stand for trial; otherwise a nonsuit to be entered.

The owner of the bed of a mill pond raised by a dam across an unnavtgable stream has, as an incident to such ownership, the right to cut the ice therefrom whenever the exercise of such right does not appreciably diminish the head of water to the detriment of the mill owner. Stevens v. Keller, 78 Mo. 445, 6 Atl. Rep. 868; Paine v. Woods, 108 Mass. 160, 173; Higgins v. Kusterer, 41 Mich. 318, 2 N. W. Rep. 13.

But the law governing ponds of more than 10 acres in extent, denominated "great ponds" by the colonial ordinance of 1641-1647, is different. Of such no individual owns the subjacent soil. That and the ponds themselves are held by the state for the public. The right to take fish or ice therefrom is common and free to all, unless abridged by the legislature. Barrows v. McDermott, 73 Me. 441; Roxbury v. Stoddard, 7 Allen, 158. Neither the shore proprietor, nor any corporation with simple charter authority to cut ice thereon, has any greater or different right, in respect to that, than every other inhabitant who can gain legal access to the pond. Brastow v. Ice Co., 77 Me. 100; Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass. 222; Rowell v. Doyle, Id. 474.

As the state holds such ponds and their contents and products for the people, the legislature may regulate the essential acts of possession which shall constitute a legal appropriation of a given quantity of the ice. Barrows v. McDermott, supra. Although the ice business has developed so enormously within the last eight or ten years, the legislature has not yet taken the subject in hand, and hence all rights pertaining thereto necessarily rest upon judicial interpretation. Woodman v. Pitman, 79 Me. 456, 460, 10 Atl. Rep. 321.

Neither have the courts fully settled the definitive rules which shall govern the rights of the public, though they have with more or less harmony laid down a few general rules pertaining thereto. Thus this court, in an action in which this defendant was a party, has declared that the rights of individuals are equal, to be exercised in a reasonable manner, with a due regard to the rights of all who may wish to take ice from this pond. Brastow v. Rockport Ice Co., supra. So the court in Massachusetts has made a like decision, that every inhabitant, who can obtain access to a great pond without trespass, may cut ice thereon for use or sale, so long as he does not interfere with the reasonable exercise by others of like rights. Rowell v. Doyle, 131 Mass. 474. And the court in Kansas has said that he who first appropriates and secures the ice owns it. Wood v. Fowler, 26 Kan. 682.

What is essential to constitute such an appropriation is not fully settled.

Where the plaintiff inclosed with marked stakes, and with a snowplow plowed around, a certain field of ice upon the Mississippi river; had a flatboat on the spot to remove the ice; held constant possession by a body of employes, who kept it swept; and, after expending more than $200 in preserving it, and it was fit to cut, the defendant, with a crew armed with clubs, drove the plaintiff and his employes away, and cut and carried off the ice,— the defendant was held liable for the ice. Hickey v. Hazard, 3 Mo. App. 480.

So, on the Detroit river, where the channel was 1800 feet in width, an ice company extended a boom parallel with and 15 feet from the shore on which its ice houses stood, the defendant was held liable for unnecessarily running its ferryboat up and down the river so near to the boom as to break up and destroy the ice which had formed inside of R. People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 6 N. W. Rep. 636.

In the case already cited, lessees of a tract of land on the bank of Kansas river were denied an injunction against the defendant's taking ice opposite and next the lessee's land. The court concluded their opinion by saying: "The one who first appropriates and secures the ice which is formed is entitled to it, and on the same principle that he who catches a fish in one of these rivers owns it." Wood v. Fowler, supra.

Again, where lessees of ice houses on the shore of a greatpond scraped the snow from a portion of it, and then left it for a day and two nights in order that it might increase in thickness, it was held that they thereby acquired no such title thereto as would enable them to maintain an action of tort against one who cut holes through the ice for the purposes of fishing, and knew the purposes for which it was cleared and the usual manner of harvesting ice. Gray, C. J., said: "At the time of the acts of which the plaintiffs complain, they had not cut any ice, nor were they engaged in cutting, or otherwise in actual possession." Rowell v. Doyle, 131 Mass. 474, 476.

So, in the very late case of People's Ice Co. v. Davenport, 149 Mass. 322, 21 N. E. Rep. 385, it was held that scraping the snow from about one half of the ice of a great pond, and marking it off with stakes, and then suspending further active operations, give no such title as will enable the party to maintain trover against another who five days later cut and gathered the ice. Morton, C. J., after reaffirming the previous cases decided by that court, said: "The case is not like one of capturing animals fer? nature, or of taking possession of derelict property. It is more analogous to ...