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from the language employed by the testatrix. , vested remainders, subject only to be divested The gift over is made by a direction to the in the case of those who should happen to trustees of the fund; and that direction is die during the continuance of the life estate, that after the decease of Keziah Price they leaving issue, the provision for the issue of are "to pay, distribute and divide the said deceased children must be treated as purely principal fund, however the same may be substitutional. then invested, to and among the children of Another consideration is that there are in the said Keziah and the issue of any deceased this limitation, as already noticed, no words of child by right of representation, such issue present gift to the children of the life tenant. taking the sbare which would have belonged The trustees are directed to pay to Keziah to their deceased parent.” That is, if we Price the income during her life, and after her follow the literal language of the will, the decease to pay and divide the principal fund to beneficiaries, the persons among whom the and among her children and the issue of any fund is finally to be divided, are her children deceased child. The employment of such lanand the issue of any deceased child; and then guage often has been held to indicate that the follows a provision that the amount to be testator intended that the title should not taken by such issue is to be the amount vest until the period of distribution should which would have belonged to their deceased arrive that the bequest should be contingent parent. By directing the final payment and until that time. Eager v. Whitney, 163 Mass. division to be made among beneficiaries thus 463, 40 N. E. 1046; Hale v. Hobson, 167 Mass. to be ascertained, the testatrix, according to 397, 45 N. E. 913; Peck v. Carlton, 154 Mass. the natural import of her words, has excluded 231, 28 N. E. 166; Denny v. Kettell, 135 Mass. those children who should die during the 138. And, although this may not be an absolife estate without leaving issue. Plainly lute and decisive rule of construction, it gensome of these beneficiaries, the issue of erally has been regarded as of importance and deceased children, cannot be determined un as a weighty consideration in arriving at the til the decease of the life tenant; and this meaning of a testator. See the cases collected affords a strong indication that all of the in 30 Am. & Eng. Ency. of Law (20 Ed.) 771. beneficiaries are to be then determined. It is Hale v. Hobson, ubi supra, has indeed been only after the decease of Keziah Price that somewhat limited by Codman V. Brigham, the trustees are directed to make the final ) 187 Mass. 309, 72 N. E. 1008, 105 Am. St. Rep. payment and distribution. The thing to be 394; but we are not aware that its declaration divided is the trust fund as then existing, of the principle here stated ever has been “however the same may be then invested." impugned. The payment and distribution are to be made By the true construction of this will, in “to and among the children of the said Ke 1 view of all the circumstances, it is the opinion ziah and the issue of any deceased child by of a majority of the court that the parties right of representation." The fact that, as entitled to take this gift in remainder are here, some of the legatees in remainder those who at the time of the death of Keziah could not be ascertained until after the termi- | Price were her children and the issue of any nation of the life estate, has been regarded deceased child by right of representation, as having a strong tendency to show that and that a child of hers who died in her all the remaindermen must be ascertained lifetime leaving no issue had no vested inat that time, and so that all the remainders terest which would pass to the executor of were contingent. Smith v. Rice, 130 Mass. his or her will. 441; Denny v. Kettell, 135 Mass. 138; Hard- Accordingly the decree appealed from must ing v. Harding, 174 Mass. 268, 54 N. E. 549. be affirmed. So ordered.

Moreover, it seems to us that the testatrix intended the whole fund to be divided among the beneficiaries whom she identifies by de

(190 Mass. 307) scription; that is, among the persons who at ATTORNEY GENERAL v. HERRICK. the time of division answer to the description (Supreme Judicial Court of Massachusetts. which she gives, who are, then, either chil

Essex. Feb. 26, 1906.) dren or the issue of deceased children of Mrs. WATERS AND WATER COURSES-GREAT PONDS Price. The children and issue of deceased


Under Colonial Ordinances 1641-47 prochildren, though standing in different degrees

viding that no town shall appropriate to any of relationsbip to their ancestor, are described particular person or persons any great pond as forming one collective body, one class, as containing more than 10 acres of land, and in Bigelow v. Clap, 166 Mass. 88, 43 V. E.

declaring, “And for great ponds lying in com

mon, though within the bounds of some town, 1037 ; Hill v. Bowers, 120 Mass. 135; Bassett it shall be free for any man to fish and fowl v. Granger, 100 Mass. 348; Young's Appeal, 83 there," etc., the commonwealth has title to a Pa. 59. Nor do we see how, without putting

barren island in a great pond located in a town, an undue strain upon the language of the tes. | conveyed by the town, or by the colony, the

| no part of which island had been granted or tatrix, it can be said that the remainder after province, or the commonwealth. the life estate is not as much a direct (Ed. Note.For cases in point, see vol. 48, gift to the issue of deceased children as it is

Cent. Dig. Waters and Water Courses, $ 123.) to the children themselves; but if the children Report from Superior Court, Essex County; living at the death of the testatrix took then | Fredk. Lawton, Judge,

Information by the Attorney General , * . The pond and the water therein be against Frederick W. Herrick, to recover an long to the public.” Fay v. Salem & Danvers island in Chebacco Pond, in the town of Ham- | Aqueduct Co., 111 Mass. 27. "By the law of ilton, Essex county. On report from the su Massachusetts, great ponds, not appropriated perior court. Judgment for plaintiff.

before the colony ordinance of 1647 to private Nathan Matthews and J. Mott Hallowell,

persons, are public property, the right of reafor city of Medford. U. G. Haskell, for de

sonable use and enjoying which * . • is fendant. Robt. G. Dodge, for Atty. Gen.

common to all.” Hittinger v. Eames, 121

Mass. 539-546. “No question is made that, KNOWLTON, C. J. This is an informa under the laws of this commonwealth, Spy tion brought by the Attorney General under Pond is a great pond. It is, therefore, public Rev. Laws, c. 188, to recover an island in property," etc. Gage V. Steinkrauss, 131 Chebacco Pond, in the town of Hamilton, re Mass. 222. “The great ponds of the commoncently entered upon and held by the defend wealth belong to the public, and like the tide ant. The question is whether, as against an waters and the navigable streams, are under intruder, the commonwealth has a title to the control and care of the commonwealth." this island in a great pond, no part of which Attorney General v. Jamaica Pond Aqueduct has ever been granted or conveyed by the Corporation, 133 Mass. 361-364. "Under the town in which it is situated, or by the col ordinance the state owns the great ponds as ony, the province, or the commonwealth, un public property held in trust for public uses." less it be held that recoguition of the town Watuppa Reservoir Company y. Fall River, by the colony, before the adoption of the body 147 Mass. 548–557, 18 N. E. 465, 477 (1 L R. of liberties of 1641-47, was a grant which A. 466). "They (the colonists] reserved to the finally transferred the legal title. In this colony the property in the ponds themselves, colonial ordinance is this language, "provided the better to regulate these and other kindred that no town shall appropriate to any partic- public rights for the common good. * * ular person or persons, any great pond con- | The ordinance secures to the commonwealth, taining more than ten acres of land," etc. in the great ponds, the same kind of owner. Also the following: “And for great ponds ship in the water, that an individual purchaslying in common, though within the bounds er of the entire area of a small pond would of some town, it shall be free for any man to get by a perfect deed, or by an original grant fish and fowl there, and may pass and repass from the government, without restrictions." through any man's property for that end, so Minority opinion in the last case, pages 564 they trespass not upon any mau's corn or 566 of 147 Mass., pages 476, 477 of 18 N. E. meadow.” All such property then unappro (1 L. R. A. 466). "The commonwealth was priated was thereby reserved for a public use. the owner of the great pond before the tak

The report of the auditor shows that Che ing.” Proprietors of Mills, etc., p. Com., 164 bacco Pond has never been appropriated to Mass. 227–229, 41 N. E. 280. In Potter v. any person or persons, but has been held in Howe, 141 Mass. 357-360, 6 N. E. 233, a great accordance with this ordinance. It also ap pond had been artificially lowered, so as to pears from the report that no grant was ever leave a strip of land uncovered between the made by the colony to any persons as pro original water line and the lower water line. prietors, nor to the town, although there was The court said: "By the withdrawal of the a recognition of the town, with such rights water by the defendants, a strip of land, the as were ordinarily exercised by towns which title to which is in the state and the use in had no formal incorporation, nor any formal the public, is interposed between his land grant of land. There were numerous such and the water of the pond." In Auburn v. towns in existence at the time of the adop- Water Power Company, 90 Me. 576-584, 38 tion of this colonial ordinance, and there Atl. 561, 564 (38 L. R. A. 188), the court said: were many great ponds in them. While, so i "It is a settled rule of law, in this state and far as we know, there is no express decision in Massachusetts, that all great ponds—those in Massachusetts upon an issue arising be ponds containing more than 10 acres-are tween a town and the state, as to whether owned by the state. This is a rule of law pethe legal title to great ponds is in the towns culiar to this state and Massachusetts. It is or the state, there are many cases in which said to have been derived from the colonial it has been said that the title is in the com ordinance of 1641-47.” These quotations monwealth. Here are quotations from some show the construction put upon the ordiof them: "The law of Massachusetts * * * uance, in its application to existing conditions, has treated great ponds as of a character near where great ponds had not been previously ly resembling tide waters * * * the title in appropriated to individuals. The statements

, and the lands under them, was not a in the opinions are general, applying to ponds subject of private property unless by special in towns which were settled and recognized grant of the Legislature." Paine v. Woods, before the adoption of the ordinance, as well 108 Mass. 160-169. “Great ponds are public as to those settled later. In several of the property, the use of which for taking water cases it distinctly appears that the pond is or ice, as well as for fishing, fowling, bathing, in a town which was a part of a town es. boating, and skating, may be regulated or isting prior to 1641. So far as we are aware, granted by the Legislature at its discretion. I there is no case in which it has been decided

that the title to a great pond is held by a city , a town holding lands, where the grant was or town, and the only cages in which that not to individuals and where the evidence is treated as possible or probable are those tended to show a grant to the town: "Its in which a prior grant from the Legislature functions were, then, of a two-fold nature was proved or assumed. West Roxbury V. —to distribute the lands among the freemen Stoddard, 7 Allen, 158; Attorney General v. for the purposes of settlement, reserving such Revere Copper Company, 152 Mass. 444 448, rights as might be deemed requisite for vari. 25 N. E. 605, 9 L. R. A. 510. In the former ous public uses, and to do its part as a case there was a colonial act which was re constituent member of the new state, bearlied on as a grant, and in the latter a grant ing its proportion of the public burdens, was distinctly shown. In the latter case is clothed with limited powers of government this language: “It is held that the title to in local matters, but amenable to the comgreat ponds which had not previously been monwealth and subject to its control and granted is in the commonwealth for the ben- direction. There can be no doubt that, from efit of the public, and if a pond had previous the earliest period, the Legislature of the ly been granted to a town and had not passed colony exercised the unquestioned authority to a private person, the legal title remains of deciding what public duties should be disin the town, but the beneficial right is in charged by the towns, including not only apthe public.” This is a distinct recognition propriations of money, but of lands. * * * of the difference between cases in which there The right to change the boundaries of towns had been an express grant to a town and and to create new ones, from the territory those in which there had been no grant. of towns then existing, was never questioned."

It may be well to consider what were In City of Boston v. Richardson, 13 Allen, the relations of towns to the local land 146-150, Mr. Justice Gray uses this lanwhen no grant was made, in the early years guage: "On the 3d of March, 1635–36, the of the colony. They were undoubtedly au General Court enacted that the freemen of thorized, expressly or by implication, to rep every town should have power to dispose of resent all public interests, to a large degree, their own lands and woods, with all the priv. in local matters, subject to the direction and ileges and appurtenances of the said towns, control of the colony. They were in pos to grant lots, and make such orders as may session of the land within their recognized concern the well ordering of their own towns, boundaries, with authority to appropriate it not repugnant to the laws and orders here to individual settlers, and to manage for the established by the General Court.' 1 Mass. general good that which was left in common. Colonial Records, 172. It appears, however, But, until it was appropriated, they had no by the records of the colony, that the rights title which they could set up against the and powers of the towns, in the lands withgeneral rights of the colony. In their dis in their limits, were considered as suborditribution of land, and in the management nate to the paramount power of the General of that which remained public, they exercised Court, at its discretion, to grant lands in authority which originally belonged to the any town, not already granted to individuals. colony alone, and in the absence of a grant 1 Mass. Colonial Records, 101, 102, 103, 111, they acted as representatives of the central 129, 130, 240.” So in Lynn 7. Nabant, 113 power and ownership. In Com. v. Roxbury, Mass. 433–448, we find these words: "The 9 Gray, 451-500, Chief Justice Sbaw said: lands within the limits of a town, which “Even an act of incorporation, without an ex had not been granted by the government of press grant of the lands within it, would not, the colony either to the town or to individ. in our judgment, effect a transfer of the pub uals, were not held by the town as its ab. lic lands. Such an act, with limited bounds, solute property, as a private person might would pass municipal jurisdiction, but not hold them, but by virtue of its establishment soil.” So on page 501: “All the early acts and existence as a municipal corporation, for fixing boundaries between towns * *

public uses, with power by vote of the freehave no tendency to prove or disprove title. men of the town to divide them among its They affect the question of jurisdiction only, inhabitants, yet subject to the paramount auand for the purpose of the present inquiry, thority of the General Court, which reserved, may be laid out of the case." See Litch and habitually exercised, the power to grant, field v. Scituate, 136 Mass. 39-44. In Porter at its discretion, land so held by the town." v. Sullivan, 7 Gray, 441, 443, 444, Chief Jus When the colonial ordinance of 1641-47 tice Shaw says: “All private property or own. was adopted, the General Court took away ership in land, within the limits of the col from the towns, to which no grants had been ony of Massachusetts, must be derived from made, all power to act further in reference a grant of the colonial government. . * * to great ponds not appropriated to individuOf course, all the early records of the colony als, and appropriated the ponds to the use of are filled with acts prescribing bounds of the general public. Under the enactment of each township; but such acts, intended solely the General Court quoted above from City of to fix the limits of jurisdiction, are never | Boston v. Richardson, towns, in the absence used as instruments for granting land.” In of a grant, had nothing but a delegated auInhabitants of West Roxbury V. Stoddard, thority, which the General Court might at 7 Allen, 158-169, Mr. Justice Hoar said of any time terminate. The general government was the natural owner and controller of features of the country, including any islands property held for the public, and as the towns within them. But in the present case we had no absolute title, on the adoption of the need not decide this question, for it is plain ordinance the original title of the colony re that this island is not one that would natural. mained perfect, with no right in the towns ly be separated in ownership from the land any longer to interfere with it. This we con under the water and from the water itself. ceive to be the ground on which the court There is nothing in it which ever would have has proceeded in reaching the conclusions called for an appropriation of it to any other quoted above. Our Legislature, in recent than a public use, and it never has been so apstatutes, bas recognized the rights of the

propriated. The title to it has been treated commonwealth in great ponds, not only as by the town, and by everybody, as going with to the public use of them, but also as to the the title to the rest of the pond. Without title. St. 1869, p. 678, c. 384, 8 9; Pub. St. finding it necessary to determine whether 1882, c. 91, 8 12; Pub. St. 1882, c. 196, 8 11; there might be an island of such size, and Rev. Laws, C. 202, & 30; Rev. Laws, c. 96, shape, and character that the town might $$ 15, 16, 18, 27. We are of opinion that the lawfully appropriate it to a private person, title to Chebacco Pond is in the common. after the passage of the ordinance of 1641wealth.

47, we are of opinion that the title to this The defendant contends that, even if the

island has never been separated from the pond is owned by the state, Loon Island is title to the pond, and that it belongs to the not included in it. The auditor found “that commonwealth. Loon Island is insignificant in size, rocky, Judgment for the plaintiff. and sterile; that previous to the defendant's occupation it has never been continuously used or occupied by anybody; and that it is

(190 Mass. 288) worthless for agriculture or grazing. Fish. SULLIVAN V. NEW BEDFORD GAS & EDermen and boating parties from picnic

ISON LIGHT CO. grounds on the shore and elsewhere have

(Supreme Judicial Court of Massachusetts, landed on the island when and as they

Bristol. Feb. 26, 1906.) pleased, without prohibition from any source, 1 MASTER AND SERVANT—INDEPENDENT Coxand doubtless gunners have built blinds TRACTORS. thereon, behind which they have held tenure

A stevedore, who is paid so much a ton for

unloading coal from a vessel, and who bired, according to the patience of their kind.”

discharged, paid, and had charge of the men Whether all islands in great ponds are to be who did the work, was an independent contreated as parts of the ponds, under this ordi tractor.

2. SAME-INJURIES TO SERVANT-APPLIANCES. nance, may be a question not free from doubt.

At common law, and under Rev. Laws, c. Ordinarily a grant of a pond as a piece of

106, 8 76, providing that the employment of a real estate would include the entire area subcontractor shall not bar the employer's within its borders. Islands in rivers, within liability for injuries to employés of the subcon

tractor from defects in the machinery furnished the boundaries, where the line extends to the

by the employer, an Owner who contracts to thread of the stream, are included within have work done by an independent contractor grants. Lunt v. Holland, 14 Mass. 149; In. with the owner's machinery owes the saine graham v. Wilkinson, 4 Pick. 268, 16 Am.

| duty to the employés of the contractor as if

they were his own. Dec. 342; Deerfield v. Arms, 17 Pick, 41, 28

3. SAME-ASSUMPTION OF RISK. Am. Dec, 276; Hopkins Academy v. Dickin A servant employed to unload coal from a son, 9 Cush. 544; Nichols v. Suncook Mfg. vessel assumes the risk of injury by the apCo., 34 N. H. 345; Kimball v. Schoff, 40 N.

paratus in use when he was employed, which,

though not the best kind of apparatus, was not H. 190. See People v. Warner, 116 Mich.

out of repair. 228, 74 N. W. 705, and Canal Commissioners v. People, 5 Wend. (N. Y.) 423, in which Exceptions from the Superior Court. latter case Chancellor Walworth says that Bristol County; Chas. A. De Courcy, Judge. “our local law seems to bave assigned Action by James D. Sullivan against the . . . the beds of the lakes with the New Bedford Gas & Edison Light Company. islands therein to the public.” In an official Verdict for defendant, and plaintiff excepts answer to an inquiry by the board of bar. Exceptions overruled. bor and land commissioners, Attorney Gen. Jas. P. Doran and Edwd. T. Bannon, for eral Knowlton gave an opinion that the plaintiff. Chas. W. Clifford and Oliver Presislands in great ponds are the property of the

cott, Jr., for defendant commonwealth. Attorney General's Report for 1901, pages 55, 56. While there are LORING, J. The bill of exceptions in this grounds for an argument that the ordinance case does not give an intelligible explanation of 1641-47 had reference only to the waters in all respects of the machinery here in of the great ponds and the land under them, question. The plaintiff was employed by one there is much force in the suggestion that Mahoney to work in unloading a cargo of the expressions "great pond containing more coal from a barge alongside of the defendthan 10 acres of land," and "great ponds ly- ant's wharf in New Bedford. It appeared ing in common though within the bonds of that the usual method of unloading coal carsome town," refer to great ponds as physical l goes is to All a tub, then hoist it on a der

rick or some apparatus in the nature of a , of them he had worked for seven or eight derrick, and swing it in by a rope in the years, shoveling coal and doing other work hands of a guy man until it is over the coal on the coal wharf. At this place, and at pocket where it is to be discharged, when another of these places, tubs with boxed-in another man, called a dumper, upsets the wheels were in use, and he admitted that tub. The tub is then pulled back by the guy there was room enough for a lump of coal man until over the hatch in the coal vessel, to get caught in these other tubs; but he when it is lowered into the hold. In the testified that he never had known of coal case at bar the tubs used by the defendant being wedged in there that is, between the were heavy tubs of iron, 30 inches deep and wheel box and the side of the tub. It was 36 inches in width, with wheels in the bot testified to by the plaintiff and others called tom of them. The defendant, in its brief, by him that it is the duty of the dumper says they had three. These wheels were when the ordinary method of unloading coal boxed in and apparently were used to wheel is used, to give warning if there is danger. the tubs from place to place. Just when it | It also appeared that the defendant's autobecame necessary to wheel them about in matic device had been in operation for only connection with the defendant's automatic 12 or 13 days, all told, before the plaintiff apparatus hereinafter described, if at all, I was hurt; that on the day the plaintiff was does not appear. On the back of the tub hurt "it did not work any different than it was a latch which was automatically knocked had worked every day before; that the tubs out when the tub was over the coal pocket, sometimes came down latched and sometimes whereupon the tub turned over bottom up unlatched, and that in this respect, there and discharged its load of coal. The tub had been no difference from the beginning of was fitted with a balance weight intended to his use of the apparatus ; that there was cause it to right itself, and upon its doing so nothing broken or out of repair on the day the latch would catch again, and hold it of the accident." The plaintiff called a wit. bottom down and mouth up. It was then ness who testified that he was "a boiler run back until over the hold of the vessel, maker, and had been engaged in the business when it was lowered into the hold to receive 18 years, and had had experience in the a new load.

making and mending of coal tubs; that he It is stated in the bill of exceptions that had bad experience in calculating the pro“the tub is operated by a cable passing over portion of weight in the adjustment of tubs ; a movable truck which travels on two paral that the ordinary tub is made so that, after lel tracks forming an inclined plane from being dumped, it swings back again and the dumping place over the pocket down to catches; that this is done by the countera position over the hold of the barge." balance on the back of the tub; that these Just what this means we do not kņow. tubs of the coal company are balanced the The plaintiff was hired by Mahoney on the same as the ordinary tubs; that the proper day of the accident to take the place of a position when empty would be bottom down coal shoveler who had been taken with and mouth up." He further testified that, cramps. He was told by Maboney to go into "assuming that an iron tub weighing about the hold of the barge, where he was set to 1,200 pounds, three feet square and three feet work with Mahoney, shoveling 'a place for deep, such a tub as is used for dumping coal tbe tub on its return trip. The plaintiff's from a barge, and intended to operate in account of the accident was "that Mahoney such a manner that when suspended from told him to pair off with him (Mahoney), the ball to the back of the tub [it] fails that he took a shovel and scraped the coal when empty to return to an upright position, away just making room for the tub to come and is not held by any force other than its down, and he heard some one holler 'Look own weight," he should attribute its failure out! and he jumped, and as he did so, to take its proper position to its “not being something struck him and rendered him un properly balanced"; that is, to its “not havconscious." It appeared that what bit him ing sufficient weight on the back to bring it was a lump of coal which had got jammed back to its proper position." between one of the wheel boxes and the side By the uncontradicted tetstimony there of the tub and had not fallen out when the was, as we have said, nothing broken or out tub was upset. One of the plaintiff's wit- ! of repair on the day of the accident. It also nesses testified "that, as Mahoney and plain- | appeared that the defendant's automatic aptiff were scraping up coal to make room for paratus was the only one in New Bedford, and the tub, the tub came down the run un that the plaintiff never had worked on it. latched, and when it came to the forward Mahoney testified that he was a stevedore; end of the trolley the jar of the tub shook that he was paid so much a ton for unloadthe lump of coal out of the tub, and it | ing the coal; that he hired, discharged, paid, came down and hit the plaintiff on the head; and had charge of the men engaged in unloadthat the tub came down the run mouth ing the coal. The judge ruled that the plaindown and unlatched.” It appeared from the tiff had not made out a case, to which he plaintiff's cross examination that he had took the exception which is now before us. worked as a coal shoveler for five different | We agree with the defendant that, as matter

ployers in New Bedford; that for one of law, on the evidence, Mahoney was an

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