Gage v. Steinkrauss
| Decision Date | 25 April 1881 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Charles O. Gage & others v. Charles L. Steinkrauss & another |
Middlesex. Bill in Equity to restrain the defendants from cutting ice in Spy Pond. Hearing before Ames, J., who reserved the case for the consideration of the full court; such judgment to be entered as justice might require. The facts appear in the opinion.
Bill dismissed.
H. G Parker & J. H. Hardy, for the plaintiffs.
E. R Hoar & B. F. Hayes, for the defendants.
No question is made that, under the laws of this Commonwealth Spy Pond is a great pond. It is therefore public property and the right to cut ice therefrom for use or sale is common to all, and the owners of the shores have no peculiar right in the water or ice, or in the land under them, except by grant of the Legislature, or by prescription from which a grant is to be implied. Anc. Chart. 148. Cummings v. Barrett, 10 Cush. 186. Hittinger v. Eames, 121 Mass. 539, and cases cited.
It is not contended that the plaintiffs or their grantors have acquired any rights in the water of the pond or in the land under it, by grant from the Legislature or by prescription. But they rest their right to maintain this bill upon the provisions of a deed wherein True W. Seaver, who was then the owner of the land, now held by the defendants, conveyed to James and Joseph Hills "their heirs and assigns the right to cut ice on Spy Pond . . . . against all the land owned by me and bordering on said Pond . . . . meaning hereby to convey to said Hills all the right to cut ice from said pond which I now have or may at any time have by virtue of any title to the said land bordering as a foresaid on said pond." The grantor then reserves to himself the right to cut ice sufficient for the use of a public house, and the deed contains the usual covenants that the grantor is lawfully seised of the premises, that he has the right to convey, and will warrant and defend the same against all persons. The right thus granted was afterwards conveyed to the plaintiffs.
No interest in the land of Seaver on the shore of the pond passed by the terms of this deed; for the rights granted are in the pond itself, "against," that is, outside and beyond the limits of the land. As owner of the shore, he had no title whatever in the water or in the ice of the pond, and had no greater right...
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