Potter v. Howe

• Decision Date: 31 March 1886
• Parties: POTTER v. HOWE and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 357

6 N.E. 233

POTTER v. HOWE and another.

Supreme Judicial Court of Massachusetts, Worcester.

March 31, 1886

COUNSEL

W.S.B. Hopkins and B.W. Potter, for plaintiff.

Chas A. Merrill, for defendants.

OPINION

W ALLEN, J.

This is a bill in equity, in which the plaintiff, the owner of land bounding on a great pond, seeks to have the defendant enjoined against raising the waters of the pond above the natural high-water mark, and from drawing them off below the natural low-water mark of the pond. The facts, so far as they are material to the decision, are these: The plaintiff owns a farm bounded about 100 rods on a great pond, which has an area of about 100 acres. The defendants own a strip of land about four rods wide on the pond, at the only outlet of it, upon which they maintain a dam, which raises the water of the pond above high-water mark, and in connection with it have excavated the outlet so that they draw off the water below low-water mark. The defendants, by means of the dam, use the pond as a reservoir to feed a mill-pond they own upon a stream not the outlet of the pond, and not connected with it except by an artificial channel or canal leading from the outlet stream to another stream on which are the defendants' millpond and mills. The defendants have maintained a dam at the outlet, and raised the water by means of the canal to feed their mill-pond, for more than 20 years before the commencement of this suit; but in 1873 the dam was raised so as to raise the water above the natural level of the pond at high water, and after that time the channel of the outlet was depressed so as to reduce the water below the natural level at low water. The plaintiff does not complain of the use of a dam and gate by the defendants to regulate the retention or discharge of the water between its natural levels, but of a dam and outlet which raise and lower the water of the pond beyond its natural levels.

There can be no ground for the claim that the defendants have acquired, as against the plaintiff, the latter right by prescription or use, or that the plaintiff is bound by the actual condition of the pond at the time he took his deed. Paine v. Woods, 108 Mass. 160.

As the defendants' mills are not on the pond, or any outlet of it, the mill acts do not apply, even if they would apply in any case to the waters of a great pond. Pub.St. c. 190, § 1; Bates v. Weymouth Iron Co., 8 Cush. 548.

It is necessary to consider particularly the rights of owners of land bounding on a great pond, in the waters of a pond. It is enough to say, in a general way, that great ponds are held for the common and public use of all, and the littoral owners upon them have no private property in the waters of the pond, or in the soil under them below the natural low-water mark. Paine v. Woods, 108 Mass. 160. It may be assumed, too, that the public right in the pond is not confined to such uses as fishing, bathing, passing over its surface in boats or on the ice, and taking ice from it, but includes the use of the water for domestic, agricultural, and manufacturing purposes.

The defendants claim that there is a public right to use the water for manufacturing purposes, which involves, not only the right to transport the natural water of the pond by artificial means to an unnatural place, but also to hold back and store the water, in times of abundance, above its natural level, and to artificially draw it off, in times of scarcity, below its natural level. This case does not present any question as to the right of the public to so use the water between its natural levels, but only the right to artificially detain it above high-water mark, and to draw it away below low-water mark.

In regard to raising the water the public right is immaterial and need not be regarded. If the defendant has the right, as against the public, to enlarge and deepen the pond, so that an information or...