Inhabitants of Lynnfield v. Inhabitants of Peabody
| Citation | 106 N.E. 977,219 Mass. 322 |
| Parties | INHABITANTS OF LYNNFIELD v. INHABITANTS OF PEABODY. |
| Decision Date | 24 November 1914 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Starr Parsons, H. Ashley Bowen, and Chas. D. C. Moore, all of Lynn for petitioners.
Benj. N. Johnson and Henry F. Knight, both of Boston, and Jas. J Sheehan, of Peabody, for respondent.
Each one of these petitioners claims to hold title under the grant made on May 6, 1635, by the General Court to 'John Humfry' of '500 acres of land and a freshe pond, with a little ileland therein conteyneing aboute two acres.' This grant has been alluded to several times in our reports. Reporter's note to Commonwealth v. Roxbury, 9 Gray, 451, at page 528; West Roxbury v. Stoddard, 7 Allen, 158, 165; Commonwealth v. Vincent, 108 Mass. 441, 446; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 554, 18 N.E. 465, 1 L. R. A. 466. It is undisputed that the pond thus granted to Humphrey, the name of which is still Humphrey's Pond, though it is sometimes called Suntaug Lake, is the same pond which has been taken by the respondent and for the taking of whose waters these proceedings are brought. Each of the petitioners has been allowed to recover damages upon the ground that they were respectively owners, not only of the soil under the pond, but of the water contained therein, with the right to use and deal in the same as a commodity, and even, if they should choose to do so, to sell the water as a source of water supply to any water company, town or city, that might have the right to make such a purchase, because, as they contend, the grant to Humphrey vested in him, as private property, both the 500 acres of land and the pond, including the soil and the waters thereof. The respondents contend that Humphrey acquired no title to the waters of the pond itself, because, in the first place, the language of the grant, properly construed, did not include those waters within its subject matter, and because, secondly, if the pond was included within the property intended to be conveyed, the attempted grant of the pond was inconsistent with the trust for the people upon which it was held under the colonial charter, and was merely void.
The latter contention has been put very strongly in argument; but in our opinion it cannot be sustained. On the natural meaning of the language, it is plain that it was intended to pass the pond as well as the five hundred acres of land. 'Ordinarily a grant of a pond as a piece of real estate would include the entire area within its borders.' Atty. Gen. v. Herrick, 190 Mass. 307, 313, 76 N.E. 1045. Nor is the validity of the grant now an open question. As already state, it repeatedly has been alluded to in our decisions and its validity always has been assumed. In the learned note of Mr. Justice Gray, cited above, it was said (p. 528): 'Great ponds were not at first reserved as public property or lying in common.' This was recognized as having been the law of Massachusetts in Concord Mfg. Co. v. Robertson, 66 N.H. 1, 24, 25 A. 718, 18 L. R. A. 679. The validity of such a grant of the flats lying between Boston and Dorchester was assumed in Commonwealth v. Roxbury, 9 Gray, 451, though it was held that the grant did not cover all that was contended for. In Berry v. Raddin, 11 Allen, 577, it was held that a grant by the town of Lynn of the use of the water of a stream flowing from a great pond and of the right to make sluices and to build a dam at the head of the stream, in order to create a head of water, made before the ordinance of 1641-47, and before any of the land bordering on the stream had been granted to others, created a good title in the grantee. In Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 28 N.E. 257, 13 L. R. A. 255, the Pocasset grant made by the Plymouth Colony to certain individuals for a valuable consideration, in 1680, was upheld, and it was decided that all the subject-matter of the grant, including the lands, the waters, and the great ponds lying in the described territory, vested in the grantees thereof as private property, because the Massachusetts ordinance of 1641-47 had not then become binding in Plymouth Colony. Accordingly, upon proof of the grant and of the rights thereunder of the parties to the litigation, a different result was reached from that which had been declared in the previous decision reported in 147 Mass. 548, 18 N.E. 465, 1 L. R. A. 466. Again, in Atty. Gen. v. Ellis, 198 Mass. 91, 84 N.E. 430, 15 L. R. A. (N. S.) 1120, the decision went upon the ground that the great pond there in question had become the private property of John Haynes, by virtue of a grant made to him by the Court of Assistants in 1634, but that since then the title had become vested in the commonwealth by prescription. And the weight of authority is that under the original rule of the common law, and before the common law of Massachusetts was declared by the colonial ordinance to be otherwise for the future, ponds like this might by a proper grant be made the subject of private property. Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838, 35 L.Ed. 428; Kean v. Calumet Canal & Improvement Co., 190 U.S. 452, 23 S.Ct. 651, 47 L.Ed. 1134; Wilton v. Van Hessen, 249 Ill. 182, 94 N.E. 134; Ridgway v. Ludlow, 58 Ind. 248; Clute v. Fisher, 65 Mich. 48, 31 N.W. 614; Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227, 60 N.W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516; Deuterman v. Gainsborg, 9 A.D. 151, 41 N.Y.S. 185, 186; State v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, Ann. Cas. 1914B, 1043; Bristow v. Cormican, 3 App. Cas. 641; Mackenzie v. Bankes, 3 App. Cas. 1324, 1338; Johnston v. O'Neill, [1911] App. Cas. 552.
We feel obliged to say that Humphrey, by the grant made to him in 1635, acquired title to this great pond as private property.
Many other decisions in different jurisdictions bearing more or less directly upon this question have been brought to our attention by the industry of counsel. But we have not found these of much assistance. In Maine and New Hampshire the rule of our colony ordinance is regarded as a part of the common law originally adopted in those states. Conant v. Jordan, 107 Me. 227, 77 A. 938, 31 L. R. A. (N. S.) 434; Concord Mfg. Co. v. Robertson, 66 N.H. 1, 25 A. 718, 18 L. R. A. 679; State v. Welch, 66 N.H. 178, 28 A. 21. It is believed that there is no other jurisdiction in which the first statement of the rule adopted as to private rights of property in inland waters or the land under them has been accompanied by a declaration that the rule established was not to be applied to grants preceding such establishment. But that was the statement of the colony ordinance of 1641-47: 'Unless the freemen of the same towne or the Generall Court have otherwise appropriated them.'
This grant then passed to Humphrey both the 500 acres of land and the pond, with the island therein. But the grant, made to one of the first settlers, does not purport and has not been shown to have been given for any valuable consideration. No money was paid, no services had been or were to be rendered in return for it, as was the case in Berry v. Raddin, 11 Allen, 577. It comes therefore within the principle applicable to such cases, that though the words used are to be given their natural and ordinary meaning, yet where those words are ambiguous or there is doubt as to the scope or extent of the subject-matter of the grant, the construction adopted must be the one most favorable to the grantor and most restrictive of the rights passing by the grant. Cleaveland v. Norton, 6 Cush. 380, 383, 384; Com. v. Roxbury, 9 Gray, 451, 492, 493. This grant was merely of the fresh pond and the island therein. No mention was made of the water of the pond or of its tributaries or outlet as part of what was granted. By the common law as recognized here, the owners of lands upon those tributaries, if any, or upon the stream which formed the outlet of the pond had valuable riparian rights in the waters thereof. It does not appear, as it did in Berry v. Raddin, 11 Allen, 577, that it was intended to take away or abridge those rights in favor of Humphrey. No privileges were given to him, either expressly or by necessary implication, which would interfere with the exercise by such other proprietors of their riparian rights. Such interference could not be justified without a clear expression of the will of the sovereign authority. Treat v. Lord, 42 Me. 552, 66 Am. Dec. 298. That doctrine was declared by this court in a stronger case than this. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 18 N.E. 465, 1 L. R. A. 466; Id., 154 Mass. 305, 28 N.E. 257, 13 L. R. A. 255. The Pocasset grant which there was finally sustained enumerated in the habendum 'all and singular the woods, waters, coves, creeks, ponds, brooks, benefits, profits, privileges, and hereditaments whatsoever.' It was contended that because mentioned only in the habendum and not in the granting clause great ponds and the waters thereof did not pass by the grant. But the court held otherwise, and said (154 Mass. 306, 307, 28 N.E. 257 ):
In the case at bar, there is not, as there was in the Watuppa Reservoir Case, either a valuable consideration or an express grant of the 'waters.' Humphrey took merely the pond and acquired no interest (except as a riparian owner) in the stream which formed its outlet. With reference to such a state of affairs, it...
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