Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-03-13
Gbe Urrmrunt 9b@mfF.
BRATTLEBORO:
FRIDAY, MARCH IS, 1896.
The Marlboro South Pond Cane.


preme court of Vermont had rendered a
decision in the Marlboro South Pond case,
this decision reversing the judgment which
Judge Taft, sitting in the Windham County
court in September, 1894, directed to be
given in favor of the defendant, Geo.
Mather, and remanding the case to the
county court. No court case of recent
years has aroused so much local interest,
and we have therefore procured for publica-
tion In this issue of The Phoenix the full
text of Judge Rowell's opinion, which rep
resents the views of a majority of the
court, and the substance of Judge Thomp-
sons dissenting views is also given.
Judge Rowell's opinion is an able and
careful study, historically, of the Roman
law, of the English common law, and of
American court decisions, as to what con-
sttute public waters. Briefly stated, the
conclusion is that, under the English com
mon law, public waters are navigable
waters, and navigable waters are those
which are used, or are capable of use, as
highways of commerce, and not those
which are simply capable of having boats
or other vessels run upon them.
Proceeding to consider what the Yer
mont constitution means by "boatable'
waters, Judge Rowell says there were no
navigable waters in the state under the
English common law significance, and so
the word "boatable' was used, ian apt
word to express the common-law status of
non-navigable waters, public in use though
private in ownership, that is, common
highways" The conclusion is, in sub
stance, that the test of whether or not any
given water is boatable is its capacity for
commerce, its capabiiity of being used as a
highway to float to market the products of
the field, the forest, the mine or the fac
tory. 1t is not necessary that it should
have been so used it simply must be capa-
BILE of such use. The mere fact that the
water is broad enough and deep enough to
float boat is not enough. 1t must be so
situated as to be of use as a highway.
From Judge Rowelrs discussion up to
this point it would appear that he holds
the question to be one of strictly CONNER
part of the ponds and lakes of Vermont
would become private waters, not subject
to state control. Before concluding his
discussion, however, he says: "But the
easement is not confined to business mere
| ly; it extends to pleasure as well the same
as does the easement of a highway by
land" Upon this ground it is evident
that the question of whether any given
water is capable of being used for carrying
| persons for pleasure must enter into the
account in deciding whether that water is
boatable. Whether Marlboro South pond
is "boatable" water, in this legal sense,
the court refuses to say. The burden of
proof in this particular case is on the de-
fendant who alleges that it is.
Finally, Judge Rowel takes up the
question of trespass in crossing the land
of the plaintiff club, and holds that the ac-
tion of the defendant in crossing this land
was trespass, section 81 of the fish and
game law of 1892 to the contrary notwith-
standing. In substance the holding is
that it is not within the province of the
legislature to pass law giving the public
the right to cross private property to reach
public waters in order to take fish from
them. 1t is not held, or said, that the ac-
tion of the defendant Mather in taking
fish from the pond was trespass.
Reduced to it lowest terms, we under
stand the gist of the decision to be that the
court refuses to say that Marlboro South
Il. ta Ill
natter of law, but leaves this to be deter
mined as question of fact by trial by
1 jury. The decision as rendered represents
the opinion of five of the seven Judges
Judge Taft did not sit in the case, as the
judgment in the county court was directed
by him. Judge Tyler was disqualified fol
sitting by the fact of his ownership of a
share of the defendant clubs stock.
The dissenting views of Judge Thomp,
son are the opposite, in their tenor and ex-
preston, of those held by majority Of
the court. He says in substance, that the
trainers of the Vermont constitution knew
all about the English fish and game laws
and the system of public preserves which
deprived the common people of the right t
hunt, fowl and fish, and that they mean
distinctly that no such abuses should grow
up here. He holds that the waters in ques
tion are boatable in law as we'll as in fact
1t would seem to be a question whethe
Judge Thompson's view of the scope anC
bearing of the decision as rendered is mo-
too sweeping. He takes for granted tina
the meaning is that waters to be boatabl,
must be of use for commercial purposes
while, as we have already pointed out
Judge Rowell says that "the easement /
not confined to business merely; it ex
tends to pleasure as we'll"
Judge Thompson's views are evidentl,
f very positive and decided character
and we suppose no question will be raised
but that they represent the views and be
lief upon this subject which have Away
been held by the people of the state. Fren
y