Hittinger v. Eames , 121 Mass. 539 ( 1877 )

Gray, C. J.

By the law of Massachusetts, great ponds, not appropriated before the Colony Ordinance of 1647 to private persons, are public property, the right of reasonably using and enjoying which, for taking ice for use or sale, as well as for fishing and fowling, boating, skating, and other lawful purposes, is common to all, and in the water or ice of which, or in the land under them, the owners of the shores have no peculiar right, except by grant from the Legislature, or by prescription, which implies a grant. Anc. Chart. 148. Cummings v. Barrett, 10 Cush. 186. West Roxbury v. Stoddard, 7 Allen, 158. Paine v. Woods, 108 Mass. 160, 169, 173. Commonwealth v. Vincent, 108 Mass. 441, 446. Fay v. Salem & Danvers Aqueduct, 111 Mass. 27.

Neither the Gen. Sts. c. 61, § 1, authorizing the forming of corporations for the purpose of cutting, st >ring and selling ice, nor the Gen. Sts. e. 161, § 73, punishing malicious injuries of u any ice upon any waters within this State, from which ice is or may be taken as an article of merchandise, whereby the taking thereof is hindered, or the value thereof diminished for that purpose,” restrict in any degree the common right of the public, or confer peculiar rights upon any corporations or individuals.

It appears by the report that in 1841 the owners of all the lands lying around and bordering upon Fresh Pond executed, in accordance with an award to which they alone were parties, an indenture, containing a recital (of the truth of which there is no other evidence) that they were “the lawful proprietors in fee simple of all the land covered by the waters of said pond, and of said waters, and all the privileges and appurtenances thereof, in proportion to their respective interests in the margin of said pond;” and by which they mutually agreed to divide “the surface of said pond, and the waters thereof, and the land under the same,” among themselves in fee according to certain lines therein defined, and made mutual releases accordingly, with covenants for the quiet enjoyment by each party of the shares and portions of the premises to him so assigned and set out.

The evidence stated in the report falls far short of showing such uninterrupted, adverse, exclusive and undisputed possession or enjoyment, as is necessary to establish a private title by prescription, to the exclusion of a common right in the public. At all times when the pond was not frozen, fishermen and others went to all parts of it in boats, and there was no apparent division or exclusive occupation whatever. Even while the pond was frozen, the only persons who appear to have been excluded from the lawful exercise of their common rights were a few fishermen. For skating, which would seem by the report to have been the principal purpose, other than the cutting of ice, for which the pond was resorted to in the winter, the whole surface was freely passed over. It does not appear that any one, who wished to cut ice for use or sale, was prevented from doing so. The actual cutting of ice by the parties to the indenture was no more than they had a right to do in common with the whole public; and the fact that these parties, in the preparation and cutting of the ice, and in making leases and conveyances, conformed to the conventional lines upon which they had agreed, has no tendency to prove that they had acquired any right by disseisin in the soil of the pond, or in the waters thereof, or in the ice formed therein.

The cases cited by the learned counsel for the plaintiff are quite distinguishable. In Tudor v. Cambridge Water Works, 1 Allen, 164, the decision was upon a demurrer which admitted the plaintiff’s title. In Nichols v. Boston, 98 Mass. 39, and Tufts v. Charlestown, 117 Mass. 401, the flats in question were inclosed by permanent structures which excluded tbe public.

The only covenant in the indenture of 1841 is a covenant for quiet enjoyment of the portion thereby set off and released to each party. The benefit of that covenant would doubtless pass to his assigns. White v. Whitney, 3 Met. 81. But the burden of the covenant did not run with the lands or rights owned by or set off to the covenantors, so as to bind their assigns, because, so far as such lands or rights were by the side of the pond, the covenantee never had any interest in them, and, so far as they were within the pond, the covenantee expressly released all his title, and he had therefore no interest in any such lands or rights, whether within or without the pond, and no privity of estate with a purchaser thereof. Bronson v. Coffin, 108 Mass. 175, 180, and 118 Mass. 156, 162.

But the deed of .Wyeth to Wildes, whose title the defendant has since acquired, conveyed nothing but a lot of land by the side of the pond, the grantor’s title in which was anterior to and independent of the indenture. The deed contains no undertaking or promise on the part of the grantee, which could bind him by way of covenant or of contract. The clause of reservation imposes no restriction on the use of the land granted, as in Peck v. Conway, 119 Mass. 546. It simply purports to except and reserve to the grantor, his heirs and assigns, such right to take ice upon the pond, as pertained to this land under the indenture.

The defendant has not undertaken to exercise any such right, but denies that it exists. Never having himself admitted any such right, and not being a party to the indenture, nor deriving or claiming any title or interest under it, he is not estopped to assert and exercise the right of taking ice from the pond in common with any of the public who can gain access to it without trespassing upon the lands of others.

The result is, that the plaintiff has shown no right to maintain this bill, either by virtue of ownership of the shore of the pond, or of title by disseisin, or of any covenant or contract made by or binding upon the defendant, or of any restriction imposed upon him or his estate, which can be enforced in equity

Bill dismissed, with costs.