People's Ice Co. v. Davenport
| Decision Date | 14 May 1889 |
| Citation | 21 N.E. 385,149 Mass. 322 |
| Parties | PEOPLE'S ICE CO. v. DAVENPORT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 14 1889
HEADNOTES
A.B Wentworth, for plaintiff.
J.E Cotter, C.F. Jenney, and E. Davis, for defendant.
The plaintiffs never were in the possession of the ice, for the value of which this suit is brought, after it was cut and severed from the real estate. They scraped off the snow from an area which covered about half of the pond, and put down stakes to show where the line of scraping was. They then suspended operations for at least five days before the defendant began to cut ice. The question is whether this gave the plaintiffs any title to the ice which they had thus scraped. We think it did not. It is too well settled to be disputed that the property in the great ponds is in the commonwealth; that the public have a right to use them for fishing, fowling, boating, skating, cutting ice for use or sale, and other lawful purposes; and that the owners of the shores have no exclusive rights in them except by a grant of the legislature. Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass. 222. The right to cut ice is common to all the public. The plaintiffs have this right in common with the rest of the public, but they cannot, by their own act, appropriate a part of the pond by scraping it or setting up stakes, and exclude the public from it. The ice, until it is cut, remains a part of the realty, and no one has any exclusive title to it. There is no statute or other law which enables an owner of the shore, or any other person, thus to exclude the public. In Hittinger v. Eames, ubi supra, it appeared that the owners of the shore of Fresh pond had, by an indenture, undertaken to divide the pond between themselves, and were accustomed at the beginning of the winter to scrape and mark off, by stakes, their respective shares of the pond; but the court held that they could not thus exclude the public from taking ice. The case of Rowell v. Doyle, 131 Mass. 474, is similar to the case at bar. There the plaintiffs had cleared off the snow, and were proceeding to make ready for harvesting the ice. The defendant cut several holes through the cleaned ice, for the purpose of fishing, and the plaintiffs sued him in an action of tort. The court held that the action could not be maintained, saying in the opinion that the plaintiffs ...
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