Attorney General v. Ellis
| Decision Date | 29 February 1908 |
| Citation | 198 Mass. 91,84 N.E. 430 |
| Parties | ATTORNEY GENERAL ex rel. BOARD OF HARBOR AND LAND COM'RS v. ELLIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dana Malone, Atty. Gen., and James F. Curtis, Asst. Atty. Gen for Attorney General.
Robert W. Nason and Thomas W. Proctor, for defendant.
This information was filed by the Attorney General at the relation of the Board of Harbor and Land Commissioners, to restrain the defendant from making encroachments into a pond in Newton Center, called 'Wiswell's Pond,' 'Crystal Lake,' and by other names, claimed by the plaintiff to be a great pond and subject to the provisions of St. 1888, p 259, c. 318, now embodied in Rev. Laws, c. 96. The defendant contended that the pond was not subject to the provisions of this statute, on the ground that the pond had been granted in 1634 to John Haynes by the Court of Assistants, and having been thus appropriated to a private person before the ordinance of 1647, was private property and was within the exception stated in that ordinance and in St. 1888, p. 259 c. 318, § 1, and Rev. Laws, c. 96, § 27.
The master to whom the case was referred has found that Wiswell's Pond is a great pond, covering in its natural state more than 20 acres of land. The defendant owns a parcel of land bounded on the pond, upon which he was and is carrying on an ice business. He had filled the land and made encroachments upon the waters of the pond below its high-water mark, such as to interfere with the use of the waters and the soil of the pond in that locality. He had received no authority to do this from the General Court or from the Board of Harbor and Land Commissioners; it was not done in a manner sanctioned by or under any license from that board. He had not in himself, either under the Haynes grant or otherwise, any title to the waters of the pond or any right of control over them. He had not acquired any adverse right to cut ice in the pond, or any other adverse rights.
As to the title to the pond, the master found and reported that at a Court of Assistants held in Boston April 1, 1634, a valid grant of 1,000 acres of land and of this pond was made to John Haynes, and that there had been no forfeiture of this grant. There was evidence that the pond had been used for at least 60 years for boating, bathing and fishing, and the cutting of ice by any one who cared to do so; and that no claim had been made by any one, either representing the Haynes interest or any one else, to control the same; that at different times some bathhouses had been put upon the shore; and that at one time, when there was a drought, some attempt was made to use this water, and that the water had been used otherwise for baptismal purposes. In 1883 the city of Newton appropriated the sum of $500 to improve the shore of the pond, and this was expended for that purpose. But the master did not find that there had been any dedication of the pond to the public by its owners; and though somewhat doubtful upon this question he has not found that the general use of the pond made by the public for many years was in itself sufficient to oust any one having the right to claim under the Haynes grant from his title thereto.
But on September 12, 1870, the commonwealth, by its Commissioners on Inland Fisheries, executed a lease of the pond to certain parties for a term of 20 years. This lease is set out in full in an exhibit attached to the master's report, and its contents need not be here stated further than to say that it contained strict provisions and limitations upon the acts of the lessees in and upon the pond and in the user thereof, which the lessees covenanted to observe; and provided that they should thoroughly stock the pond with black bass. The lessees took possession under this lease, and held such possession during its term of 20 years. The master found that this lease was given by the Commissioners on Inland Fisheries acting in good faith upon the belief that the pond was a part of the public domain; that it was a declaration and claim of title on the part of the commonwealth; and, upon the occupancy thereunder for 20 years together with the other use of it made by the public during the past 60 years, that the plaintiff had shown that the title to the pond and its waters and the right to control the same had become vested in the commonwealth by prescription.
If we assume for the purposes of this case, that the master was right in ruling that the plaintiff, in order to maintain this information must show a title in the commonwealth, under Rev Laws, c. 96, §§ 25, 27, the principal question to be considered is that raised by the defendant's execptions to the master's report. The defendant's contention is that upon the facts found by the master as to the lease given by the Commissioners on Inland Fisheries and as to the use made of the pond by the public...
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