The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1874-03-12

succession gives you a mortgage on my
apples or that the like continuance of the
habit Of helping yourself to poultry from
my hen coops, makes for you continuous
claim to my Christmas turkeys. a statute
Of limitations may apply to the penalty,
but it does not apply to the practice.
Nor does the failure to exercise my right
of exclusive fishery effect my right to fish in
my good pleasure. 1t might as well be
said that have no right to raise potatoes
in pasture lot which has not been plough
cd for twenty years.
Back Of all this however, it must appear
evident that. where the original grant of a
tract Of land. running from the common
wealth. Included within its boundaries con-
siderable lakes or ponds or that, where,
i'll the original surveys, the areas covered by
natural ponds have not been deducted from
the total amount. and the price made to ac-
cord with the deduction or that, where,
in the government surveys, sections came
to corner in bodies Of watcr-that the title
of the riparion owners is absolute; or that
in all such cases, the grantees are possessed
Of land underlying the water. 1t is true,
that in many such cases the land underlying
the waters may have become eschpated
Sill thprp nr1 dunbtlrss son,n instances
where all the recent transfers have been in
accordance with the original surveys.
II is obvious that. in those cases, ii such
there are. where no cscheating has come to
hold a sinilte declnrinr thc dshinr - NIB
lir rioht vould moi be enforced by fine
courts, unless it, in effect. were an exercise
of eminent domain. aud carried win il the
CONDENSATION required
From the FOREGOING considerations it
would apncar t,lat before those public in
tcrcsts. to which the fish commissions are
subseryient. can he UNDERSTANDABLE minis
10. it will he necessary for onr legislature,
in IFS wisdom. to take such measures as are
L.cc,s,Iv &. determine and fix. where not
determnable. the exact limits of public
proprie,o,ship in lakes and ponds For the
legislative regulations required are
not precisely fine same in the one
case as in the other. and the commissioners
may well hesitate in their expenditure of
the annual appropriation4. lest they, per-
chance. may find themselves doing that for
individual interest proper only for that
which is public.
Our courts hold that the title TO lands on
the borders of Lake Champlain passes or
extends ONLY to low water mark. and that
like rulc holl, rs 10 the lands bordering
on those streams which empty into that
lake, as far UP them rs they Use or fall
with the lake FLETCHER vs. Phelps, 2Sth
VI. oJ0 So too. it is held that ''when
land is conveyed. bordering upon a &ths or
DoHd. if il is a Hafur0t pond the grant OK
tends only to the waters odgc: but if it is
an aytifciM pond, like mill pond caused
by the flowing back Of river the grant
extends to the middle of the stream in its
natural state. Angel ON water courses,
page 400
1t will be perceived that under this hold
ing there must he some limitation in the
application Of the doctrine. While the
rule may be eminently wise and Just as to
large bodies of water which for years have
been places of common resort of the pub
lie for fishing, yet there are other natural
ponds so small as hardly to demand this
rule or admit of it, 4 limit has been essay
ed in decision of the supreme court OF
New York. where it was held ''that a lake
measuring less than mile in width and
five miles in length. and having no nayig-
able outlet, Wuuld pass under Il grant of Il
large tract OF land which included it in its
boundarcs.' (See Angel 45.)
What rule Our courts would adopt in the
application of this law has not been, rs far
as know, determined by judicial process.
But the reasonable rule would seem to he,
that those lakes or ponds which had been
places of general resort, ponds or lakes
Yielding to the fishing considerable quaint
/ ties of fish. quantities sufficiently large to
add materially to the food Of the people
living in the neighhorhuod. should be re-
gardcl as public waters; and that, in them.
there was and could be no ownership of the
Land beneath the water below low water
mark. To regard small ponds Of but few
acres In extent, situated in the enclosures
Of frecholtlers farm, yielding no consid-
cradle amount of fishing. and adding moth
/ Ing material in the way of food supply to
/ the ncighborng inhabitants, as publ: pro-
! perry, is not called for by any considera-
| lions of public policy.
There is another fact To which the atten-
ton OF the reader is desired. That is the