Concord Manuf'g Co. v. Robertson

CourtSupreme Court of New Hampshire
Citation66 N.H. 1,25 A. 718
Decision Date15 March 1890
25 A. 718
66 N.H. 1


Supreme Court of New Hampshire. Merrimack.

March 15, 1890.

Case by the Concord Manufacturing Company against Robertson and others for diverting water from plaintiff's mills. Case held for trial.

The agreed facts are that plaintiff's mills are situated about 100 rods below the outlet of Long pond, in Concord, on a stream which flows from the pond to the Merrimack river. Defendants are engaged in the business of cutting, storing, and selling ice at Concord. Having leased a tract of land bordering on the pond, defendants went from it on the pond, and cut and carried away ice to be sold in the usual course of their business. Plaintiff claims that the flow of water from the pond to its mills was diminished, and its rights infringed, by defendants' removal of ice. The pond in its natural state contained about 160 acres. The adjoining lands were divided among original proprietors of the towsnhip into lots bounded by the pond.

S. C. Eastman and J. S. H. Frink, for plaintiff.

Chase & Streeter and W. L. Foster, for defendants.

DOE, C. J. By the grant of the original township of Gilmanton, (including territory afterwards set off as Gilford and Belmont,) made in 1727, and amended in 1729 by the provincial executive in the name of the king, the premises were bounded by two lines,—one running from the westerly corner of Barnstead northwest "to Winnipesankee pond, or the river that runs out of the said pond," the other running from the westerly corner of Barnstead northeast six-miles on the Barnstead line, then north west two miles, "then north to Winnipesaukee pond, then on the said pond and river to meet the first line." The River Winnipesaukee running out of Lake Winnipesaukee flows into and out of Sanbornton bay (now commonly called "Lake Winnesquain.") The title of the township of Gilmanton passed from the king to the grantees as private owners and tenants in common (Lawrence v. Haynes, 5 N. H. 3337; Attorney General v. Tarr, 148 Mass. 309, 311, 19 N. E. Rep. 358;) and their water boundary was the lake, the river, and the bay. Besides being a conveyance of land to the persons named as grantees, the grant was a town charter, issued to "the said men and inhabitants, or those that shall inhabit said town;" and it contained

25 A. 719

no express allusion to a distinction between the boundary line of the private land title and the jurisdiction line of the municipal corporation. In State v. Gilmanton, 9 N. H. 461, the town was indicted for not repairing Mosquito bridge, which connected Gilmanton and Sanbornton at a place where the boundary was either a part of the river or a part of the bay. In the agreed statement of facts on which the case was first submitted, it is said (page 462) that the "bay is about ten miles long, and from two to three miles wide in the broadest part;" that the bridge is "about thirty-seven rods long;" and that "there is so much current where this bridge is that no ice forms about it." It was held that the agreed statement must be discharged for a trial of the question whether the water at the bridge was a river. If it was a river, the center of it was the line to which the town was bound to repair. If it was not a river, but a part of the bay, which is a large pond, the boundary of private land title at that place was the water's edge. It was assumed that the line of private ownership was the limit of the defendants' territorial jurisdiction and public duty, and upon this assumption it was necessary to ascertain whether the water under the bridge was river or pond. The ground of the decision is stated (page 463) by Parker, C. J.: "Where a grant is made extending to a river, and bounding upon it, the center of the stream is the line of the boundary. * * * But in relation to grants bounding on ponds, lakes, or other large bodies of standing fresh water, that principle does not apply but the grant extends only to the water's edge. * * * If, therefore, the line of the township of Gilmanton * * * strikes a river, and the boundary is then upon a river, the grant extends to the thread of the river; but if it strikes any large body of standing water, by whatever name it is called, it will go only to the water's edge." At the subsequent trial, the court instructed the jury that "the point for them to settle was whether there was a current or not; and if they should find that there was a regular, steady, and perceptible current, however small, it mattened not what was the width of the water, or what it was called, it was a river, and the defendant, was liable to maintain the bridge." State v. Gilmanton, 14 N. H. 467, 470. The defendants, being found guilty, moved for a new trial, and contended (page 472) that, if the instructions given to the jury were correct, "then are all our large lakes and bays * * * nothing in fact but rivers, for in all of them there must necessarily be a small current towards the outlet; and if the current be the only thing that decides the character of our inland waters, then must these lakes and bays be decided to be private property, and the towns adjoining * * * be liable to erect bridges over the same." It was held (pages 476, 477) that "the fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake;" that the definition of "river" on which the verdict was found 'would not be applicable to all bodies of water in which there might be a current;" that the instruction given to the jury "must, of course, be taken in connection with the subject-matter to which it related;" and that "where it is admitted, or certainly not denied, as in the present case, that the water is not a lake nor a pond, the material difference between which is in size, the only criterion by which to determine whether it is a river is the existence of a current." An admission that the water was neither lake nor pond would have been an admission that it was a river, and would have left no question for the jury. Judicial notice was taken of the geography of the country, (page 477,) a knowledge of which might enable the court to decide whether the water at the bridge was a part of the river or a part of the bay. The question might be one of fact, on the trial of which the current might be one of the items of competent evidence, and for the decision of which a legal test might not be necessary. A view, taken by court, or jury,' without a ruling or instruction on any question of law, might be enough. To ocular proof could be added other evidence of the current, the quantity of water, and the comparative size and form of the basin of the bay and the channel of the river. The judgment ordered on the verdict established the fact that (for the purposes of that suit) the water under the bridge was a part of the river. At some place the water ceases to be Winnipesaukee lake, and begins to be Winnipesaukee river. Further south, it expands into another large pond, from which it issues, still further south, as a river. At each of these places of expansion and contraction the boundary of private landowners runs from the water's edge to the middle of the river. The second decision in the Gilmanton Case seems to determine that a current is not the only competent evidence of the points at which thesechanges occur in the boundary line.

However unsatisfactory State v. Gilmanton maybe on the mode of finding the line between large ponds and streams running into or out of them, on other subjects it is clear and decisive. A large pond is not private property. When land, granted by the government to individuals for private use, is bounded by such a pond, the boundary is the water's edge. Sanbornton bay is a large pond. It does not appear that there had been any doubt on these points in this state before the first decision of the Gilmanton Case in 1838. Since that time they have not been open questions. In respect to title, the law divides natural fresh-water ponds into two classes,—the small, which pass by an ordinary grant of land, like brooks and rivers, from which, as conveyable property, they are not distinguished; and the large, which are exempted from the operation of such a grant, for reasons that stop private ownership at the water's edge of the sea and its estuaries. Tide waters and large ponds are public waters. Whatever exceptions, if any, may be found, this is the rule. It is well known that the fee of Lake Winnipesaukee and Sanbornton

25 A. 720

bay is not in the owners of the adjoining land, and that all natural pools of fresh water are not the property of the state. The standard of size, or other test, that establishes their public or private title, is a point left undecided by our reported cases. But the law, classing large ponds with tide waters, and small ponds with fresh rivers and brooks, necessarily provides a mode of determining to which class every pond belongs. By the decision in State v. Gilmanton, and by uniform usage and a general concurrence of opinion, it is settled that the distinction between public and private waters is not based on tidal motion, or on the presence of salt. The action of the tide furnishes a convenient means of locating the boundary of the largest reservoir of public water, (The Genesee Chief, 12 How. 443, 455,) but does not show what reservoirs of fresh water are the property of the state. For the purposes of admiralty jurisdiction and the federal power of regulating commerce "the doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or, at least, to any considerable extent, which are not subject to the tide; and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is...

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