Brastow v. Rockport Ice Co.

Walton, J. In this State, ponds containing more than ten acres are public; and the right to cut ice upon them is a public right, free to all. In this particular, the right of a riparian owner is no greater than that of every other citizen. And the exercise of the right by a riparian proprietor, although continued for more than twenty years, will not enlarge his right. It will still be no more than a right in common. It will not thereby be changed from a common to an exclusive right. The exercise of such a right is in no respect adverse or aggressive, and prescription can not be predicated upon its exercise, however long continued. The right to take ice from a public pond, like all [104] public rights, must be exercised in a reasonable manner, and with a due regard to the equal rights of others, as the right to boat, to fish, to dig clams and oysters, must be exercised in our bays and harbors, and on the sea itself. And it is the opinion of the court that the right of the parties to this litigation to cut ice on Lily Pond is equal; that neither has a right superior to, or to • the exclusion of, the other. True, the defendants are a corporation, and their charter authorizes them to cut ice on Lily Pond. But there is nothing in the charter to indicate that the right was intended to be exclusive. And it is the opinion of the court that it is not exclusive ; that both parties must exercise the right in a reasonable manner, and with a due regard to the rights of each other, and of all others who may wish to take ice from the pond. The claim of the plaintiffs to an exclusive right to cut ice on Lily Pond opposite to so much of the shore as they own or have leases of, can not be sustained. Lily Pond, it is admitted’, contains more than ten acres. It is, therefore,- a " great pond,” within the meaning of the ordinance of 1641-7; and by the principles of that ordinance (which have been too many times recognized, sanctioned, and declared to be a part of the common law of this State, to be now disregarded) it is a public pond, and the use of it free to all, who can reach it without trespassing upon the lands of others. Barrows v. McDermott, 73 Maine, 441; West Roxbury v. Stoddard, 7 Allen, 158 ; Hiltinger v. Eames, 121 Mass. 539. Such being the law, of course the plaintiffs’ bill, in which they ask that the defendants may be enjoined from cutting ice " between the shores under their (the plaintiffs’) ownership or control and the center of the pond in front of the same,” can not be sustained. But, as the principal question is a new one in this State, and there is evidence that the defendants as well as the plaintiffs have claimed greater rights than they are entitled to, and it was equally important to both parties to have their rights judicially determined, we think the bill should be dismissed without costs. Bill dismissed. JSfo eosts. Peters, C. J., Virgin, Libbey, Emery and Haskell, JJ., concurred.