The Windham County reformer. (Battleboro, Vt.) 1876-1897, 1896-03-13
THE MARLBORO POND CASE.
Decided in Favor of the Club ON Prac-
ticRIly Every Point-The Public Has
No Rights Upon That Sheet-so Four
Judges Against One Decide Judge
Thompson Disscnts.

The supreme court announced rs
decision at Montpelier Friday in the
Marlboro Pond case. y. +. Trout \
Salmon club Y. Geo. Mather which
went up from the county court on a
pro forma decision in favor of the de-
PENDANT. The supreme courts deci-
sion is in favor of the club on practi-
I cally every point, finds the pond not
to be public waters, and to be cap
able Of private ownership, and holds
invalid the statute of 1892, lowing only
actual damage for crossing private
land to reach public waters. The de-
cision is compliment TO Mr.. Martin
! in that it follows the lines of his argu-
nent almoft exactly.
Tho opinion was given by Judge
Rowell and concurred in by Chief
Justice Ross, and Judges Monson and
Start, while Judge Thompson dissent
ed Judges Taft and Tyler did not sit
IN the case. the former because he
passed on it in the court below and
the latter because he was disqualified
as stakeholder in the club. So the
decision stands four to one, and in
this respect is a surprise because the
long delay in reaching il had given
rise to the impression that the court
was closly divided.
The decisive point in the case is the
meaning of the words boatable waters.
and the decision holds that they are
waters capable of use for passage as
highways. The constitution of Yer
mont gives all citizens liberty to fish
on all boatable and other waters mot
private property under proper regu
lations' &c. The contention of thede
Tense was that this meant public right
to all boatable waters and all other
waters that were not private prop
erty, and in this view the case might |
be said to turn on the existence or
ron existence of a comma. If there |
had been one after boatable, indi |
eating that the word waters was |
omitted, it would have tended strong
" to confirm the defense's view. But |
Mr.. Martin in his argument produced |
the original constitution from the
state house, showing that the comma
was not there and on this based the
claim that either boatable or other
waters could be private and so except
ed from the provision
Jude Rowell in his opinion gives an
elaborate historical rievew of the law
bearing on the case. BY the law Of
Rome all rivers and ports were public
and therefore the right of fishing com
mon To all men. Bat English common
law gave public right only in nariga-
BILE waters and none were deemed
uavigable except tidal waters, and non
tidal waters though pavigable in fact,
were not in law. Fresh rivers belonged
to the owners adjacent, to the extent of
carrying the right of fishing. To de
irrminc whether non tidal river is
public or private. the test Is whether
It is boatable as highway.
The trainers of our constitution
must be presumed 10 have been famil
lar with the common law under which
hey lived Though as matter of fact
here was not a lawyer among them, |
ed. Under that we had no waters ttat
were or would be free To fishing. as
fought to open some to this purpose.
The Pennsylvania constitution which :
'urs. generally speaking copies made all ]
'boatable waters and others not pri
ate property" open to fishing, stating
what the defense claimed ?
'urs to mean. But Judge Rowell +
~ Inns ~ - NV d'ihNdblc "
he phrase mot private property" az
qualifying "boatablc. for it would
rave nullified the common law as our l
trainers knew il.
AS a general pruDosition waters !
bove the tide are prima facie private
n use as well as ownership and he .
Who asserts the contrary must prove I
I. As the Marlboro pond was not re- )
erved i'll the original grant of the \
own. either expressly or by implica
ion. it must be regarded as capable
4 private ownership and no claim was y
lade that it was capable of use for .
avigable purposes 10 any extent ben
fetal to trade or agriculture.
As To the statute of 1892. the court
ODDS, that even if the pond were pub
&c waters. ii would not afford anv G
enefit to defcndent for it was shown n
hat the club owned land all round it.
nd statute which limits the penalty e;
,r trespass 10 actual damage is TAX h
!" private property for private pur.
nses without consent of owner, and is tr
lerefore unconstitutional as the court q
eclarcd the fiowage acts of 1863 and :,
ne drainage act of 'GS. q
The Judgment of the county court FIR
as therefore reversed and the Ease q
manded for trial. Bat as all the s.
'inis involved are decided. ut! the
'unty court will have 10 do is tr liz
c damage.