Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-05-02
Property Owner, Around Pond.

The Boston Journal brings out impnr.
tant facts relative to property rights in
ponds and adjacent lands, which may be-
OF Interest To many persons In Maine a.
well as In Massachusetts The Watuppa
pond cases referred to involve questions
of great Importance to the manufacturing
interests Of New England, and they arr
discussed In an able article from the mill
owners standpoint, IN the April number
OF the Harvard Law Review. from which
the Journal copies. remarking that this
article deals with a paper In the Review
for February, which sought to support
the decision of the Supreme Court in the
cases already named on grounds regarded
as somewhat novel. 1t urged the doctrine
that the right Of riparian proprietors TO
the undimiuished flow of stream of
water depends upon The law of water
courses or of running water; that water
course must have percepthle current
that when the water Is still, or has no
perceptible current, different law. the
law Of lakes and not the law OF water
courses, obtains, and that there is no law
forbidding the diversion of water without
perceptihle current, even though it
forms an int grail part of waterway.
After examining and citing at consider
able length decisions in other cases which
make against this doctrine, Messrs. War
ren and Brsndeis in their paper remark
THE radical difficulty with the article
arises from the assumption pervading il that
IL lakes and ponds cannot for all purposes be
brought within the limits of the Law relating
to streams and rivers. questions concerning
them must be RENTED for decision 10 the
principles applicable to land. Limiting the
application of the law of water courses by q
definition based on an arbitrary distinction
not referred TO in the books, founded on no
legal principle. adopting as an imma,abls
rule the neeting and delusiye test of percepti.
BILE motion, in disregard of ply steal condition,
and logical requirements. il seeks. by thus
excluding lakes and ponds to show tina. they
are not subject to the rules of law naturally
governing them. But the limitation would
be inAdmiseihle even matter of nomen-
clature. Ponds cannot be relegsted to the
domain of mere surface water nor can the
NV iruui tuem ue lkeneu 10 tue passage OF
rains and melting SHOWS over the land. The
great pond supplying mill stream must be
deemed IN name. as in reality, the first seq.
ment of . 'waterceurse.' The river al some
point in its course. flowing through
lake in shich. from its size, the current is
imperceptible. does not in Law or in nature
cease lie existence as 'water-course at the
one end and resume il at the other. The
question 10 ore of facts: and in either
case the pond. whether as the source or As
the connsctine link, is a physical fact,
necessary TO and structarally part of the
stream II 10 no longer the vasrant thing
mat biactssese thinks like . bird. to be of q
Wild, untamable nature the requisite pos
session Of the water mas been taken. IL i.
confined ~ definite boundaries and dedicst-
70 ~ the circumstances OF its environment
% the nav OF the stream a. e6ectually q, il
running With the rapidity of the mountain