Attorney Gen. v. Revere Copper Co.
| Decision Date | 03 November 1890 |
| Citation | 25 N.E. 605,152 Mass. 444 |
| Parties | ATTORNEY GENERAL v. REVERE COPPER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Information by the attorney general to restrain the defendants from so using a canal connected with Massapoag pond as to lower its surface below the natural low-water mark.
R.M. Morse, Jr., M. Morton, Jr., and T.E. Grover, for plaintiff.
H.G. Parker, for defendant.
The defendant owns the land on both sides of the stream which flows from Massapoag pond, and maintains a flume and gate at the outlet of the pond, and regulates the flow of water by holding it back or letting it down to be used for power in running its mills on the stream below, and at times lowers the surface of the water in the pond to the depth of 3 feet and 10 inches below the lowest point at which it would stand if left in its natural condition. The defendant shows an unbroken chain of title running back to the grant from the colony to the proprietorsof Dorchester in 1637, and the first question in the case is whether it has a right by deed to lower the waters of the pond as it has been accustomed to do. We will assume, without deciding, that the title to the pond passed to the original proprietors of Dorchester in 1637. West Roxbury v. Stoddard, 7 Allen, 158;Com. v. Roxbury, 9 Gray, 451. It had not been conveyed to any private person at the time of the adoption of the body of liberties in 1641, which secured to the public rights of fishing in great ponds, or at the time of the passage of the Code of 1647. By that Code, as appears by the compilation of 1660, it was provided “that no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land *** and that, 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 property for that end, so they trespass not upon any man's corn or meadow.” Anc. Chart. 148; Colonial Laws 1660-72, (Boston Reprint of 1889,) pp. 170, 37, 86. The effect of these provisions has often been considered by this court, and it is held that the title to great ponds which had not previously been granted is in the commonwealth for the benefit of the public, and, if a pond had previously been granted to a town, and had not passed to a private person, the legal title remains in the town, but the beneficial right is in the public. Com. v. Roxbury, 9 Gray, 451;West Roxbury v. Stoddard, 7 Allen, 158;Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 18 N.E.Rep. 465. The deed of the proprietors of Dorchester and Stoughton to Edmund Quincy, dated June 11, 1770, so far as it purported to convey the pond itself, was in violation of law, and of no effect. Upon our assumption, the title to the pond remained in the town to be held for the public; if it was not in the town, it was in the commonwealth, and held in like manner for the public. The deed of Samuel Briggs, Jr., to the colony of Massachusetts Bay in February, 1776, and the deed from the great and general court of Massachusetts Bay in 1779 of the powder-mill site and privilege now owned by the defendant, conveyed only the ordinary rights of a riparian proprietor on a stream, together with such privileges as were specified in the deeds, and they gave no right to interfere at any time with the natural outflow of water from the pond. The defendant shows no title by deed under which it can lawfully control the water in the pond, or draw it below the lowest level which it would reach if affected only by natural causes.
The use on which the defendant relies to support its claim of a right by prescription falls far short of establishing a title to all the water of the pond, and a right to use it as the defendant may choose. There has been no such exclusive use of the entire pond, and no such control of it by the defendant as is necessary to the acquisition of a title by disseisin. But the master finds “that since 1825 the defendant and its predecessors in title have, under a claim of right, continuously, peacefully, exclusively,-except as hereinafter stated,-and without lawful interruption up to the time of filing this information, possessed, and controlled, and regulated the water and the flow of water from this pond, have maintained the water at such height as they pleased, and have drawn it to a depth of three feet and ten inches below natural low-water mark when and as they pleased, and have entered the pond, and dug and cleaned out the channels as hereinbefore stated whenever they pleased.” He finds “that, in thus lowering the waters of the pond, the area of surface and quantity of water has been diminished, and thereby the limits of enjoyment by the public in the rights of bathing, boating, fishing, and cutting ice, if any they had, have been abridged.” He also finds “that, other than as aforesaid, the defendant has not excluded nor sought to exclude the public from bathing, boating, fishing, fowling or cutting ice on the pond, but that the public have to some extent at any and all times used and enjoyed these privileges without let or hindrance.” It is also found that, in 1770, Edmund Quincy, who held a deed from the town, lowered the water in the pond by permanently digging down the outlet under a claim of right to a depth a little less than its depth at present, and that from that time to 1825, in order to get iron ore from the bed of the pond, the water was drawn off at will through that outlet.
If the commonwealth representing the public had no property or rights to be considered, these facts would show the acquisition by the defendant of a perfect prescriptive right to regulate and control the flow of water from the pond as it and its predecessors in title have been accustomed to do. Cary v. Daniels, 8 Metc.(Mass.) 466, 479; Pratt v. Lamson, 2 Allen, 275, 278. The question therefore arises whether such a right can be acquired against the public. The rule of the common law was expressed by the maxim, nullum tempus occurrit regi. There was no statute of limitations against the sovereign power, and prescription did not run against the king. This rule has been generally recognized by the American states, and it has been held that statutes of limitationsare not applicable to suits brought by a state, unless they are made applicable to them in terms. Stoughton v. Baker, 4 Mass. 528; Com. v. Hutchinson, 10 Pa.St. 466; Bagley v. Wallace, 16 Serg. & R. 245;State v. Joiner, 23 Miss. 500;Brinsfield v. Carter, 2 Ga. 143;Des Moines v. Harker, 34 Iowa, 84;People v. Gilbert, 18 Johns. 227;City of Cincinnati v. Evans, 5 Ohio St. 594. The statute of 9 Geo. III., c. 16, changed the law in England, and extended the statute of limitations to real actions brought by the king. Since the passage of that act, prescription has been pleadable there against the sovereign. The rule of the common law prevailed in Massachusetts until the enactment of the Revised Statutes in 1836, when, by section 12 of chapter 119 the statute of limitations of real actions was made applicable to suits brought by or in behalf of the commonwealth. This section, with slight amendments, now appears in Pub.St. c. 196, § 11. Under this statute, a title by disseisin may be acquired against the commonwealth as readily as against a private person, and, by analogy, there seems to be no good reason why prescriptive rights in the real estate of the commonwealth may not also be acquired. Although the adjudications on this subject are not numerous, there are many cases which seem to recognize the possibility of acquiring such rights. It has several times been held, not only that the title of a private owner of flats may be divested by disseisin, but that the rights of the public to use the water over the flats, for navigation, boating, and fishing, may in like manner be divested by long-continued adverse use. Tufts v. Charlestown, 117 Mass. 401;Eastern Railroad v. Allen, 135 Mass. 13;Nichols v. Boston, 98 Mass. 39. Other cases assume that this is so. Lakeman v. Burnham, 7 Gray, 437;Tappan v. Burnham, 8 Allen, 65. It may be said that the cases in relation to the acquisition by prescription of public rights in flats do not show that similar rights can be acquired in great ponds, because the rights of the public in the waters over flats are subordinate to the right of the private owner reasonably to improve his land by excluding the public and building upon it, while in great ponds there is no private ownership. But if prescription will run against the public, it may avail to cut off public rights in great ponds as well as anywhere else. In Nichols v. Boston, ubi supra, the rights acquired by prescription did not depend on the peculiarities of private ownership in flats. They extended beyond low-water mark, where the sole ownership and control was in the commonwealth for the benefit of the public. In Hittinger v. Eames, 121 Mass. 539, the plaintiff claimed by prescription the right to prevent the public from cutting ice on a great pond. Although it was decided that he did not show such a use as to establish his claim,...
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