Information by the Attorney General against Frederick W. Herrick, to recover an island in Chebacco Pond, in the town of Hamilton, Essex county. On report from the superior court. Judgment for plaintiff.

Nathan Matthews and J. Mott Hallowell, for city of Medford. U. G. Haskell, for defendant. Robt. G. Dodge, for Atty. Gen.

KNOWLTON, C. J. This is an information brought by the Attorney General under Rev. Laws, c. 188, to recover an island in Chebacco Pond, in the town of Hamilton, recently entered upon and held by the defendant. The question is whether, as against an intruder, the commonwealth has a title to this island in a great pond, no part of which has ever been granted or conveyed by the town in which it is situated, or by the colony, the province, or the commonwealth, unless it be held that recognition of the town by the colony, before the adoption of the body of liberties of 1641-47, was a grant which finally transferred the legal title. In this colonial ordinance is this language, “provided that no town shall appropriate to any particular person or persons, any great pond containing more than ten acres of land," etc. Also the following: "And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass through any man's property for that end, so they trespass not upon any mau's corn or meadow." All such property then unappropriated was thereby reserved for a public use. The report of the auditor shows that Chebacco Pond has never been appropriated to any person or persons, but has been held in accordance with this ordinance. It also appears from the report that no grant was ever made by the colony to any persons as proprietors, nor to the town, although there was a recognition of the town, with such rights as were ordinarily exercised by towns which had no formal incorporation, nor any formal grant of land. There were numerous such towns in existence at the time of the adoption of this colonial ordinance, and there were many great ponds in them. While, so far as we know, there is no express decision in Massachusetts upon an issue arising between a town and the state, as to whether the legal title to great ponds is in the towns or the state, there are many cases in which it has been said that the title is in the commonwealth. Here are quotations from some of them: "The law of Massachusetts * has treated great ponds as of a character nearly resembling tide waters * * the title in which, and the lands under them, was not a subject of private property unless by special grant of the Legislature." Paine v. Woods, 108 Mass. 160-169. "Great ponds are public property, the use of which for taking water or ice, as well as for fishing, fowling, bathing, boating, and skating, may be regulated or granted by the Legislature at its discretion.

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The pond and the water therein belong to the public." Fay v. Salem & Danvers Aqueduct Co., 111 Mass. 27. "By the law of Massachusetts, great ponds, not appropriated before the colony ordinance of 1647 to private persons, are public property, the right of reasonable use and enjoying which is common to all." Hittinger v. Eames, 121 Mass. 539-546. "No question is made that, under the laws of this commonwealth, Spy Pond is a great pond. It is, therefore, public property," etc. Gage v. Steinkrauss, 131 Mass. 222. "The great ponds of the commonwealth belong to the public, and like the tide waters and the navigable streams, are under the control and care of the commonwealth." Attorney General v. Jamaica Pond Aqueduct Corporation, 133 Mass. 361-364. "Under the ordinance the state owns the great ponds as public property held in trust for public uses." Watuppa Reservoir Company v. Fall River, 147 Mass. 548-557, 18 N. E. 465, 477 (1 L. R. A. 466). "They [the colonists] reserved to the colony the property in the ponds themselves, the better to regulate these and other kindred public rights for the common good. * The ordinance secures to the commonwealth, in the great ponds, the same kind of ownership in the water, that an individual purchaser of the entire area of a small pond would get by a perfect deed, or by an original grant from the government, without restrictions." Minority opinion in the last case, pages 564566 of 147 Mass., pages 476, 477 of 18 N. E. (1 L. R. A. 466). "The commonwealth was the owner of the great pond before the taking." Proprietors of Mills, etc., v. Com., 164 Mass. 227-229, 41 N. E. 280. In Potter v. Howe, 141 Mass. 357-360, 6 N. E. 233, a great pond had been artificially lowered, so as to leave a strip of land uncovered between the original water line and the lower water line. The court said: "By the withdrawal of the water by the defendants, a strip of land, the title to which is in the state and the use in the public, is interposed between his land and the water of the pond." In Auburn v. Water Power Company, 90 Me. 576-584, 38 Atl. 561, 564 (38 L. R. A. 188), the court said: "It is a settled rule of law, in this state and in Massachusetts, that all great ponds-those ponds containing more than 10 acres-are owned by the state. This is a rule of law peculiar to this state and Massachusetts. It is said to have been derived from the colonial ordinance of 1641-47." These quotations show the construction put upon the ordiuance, in its application to existing conditions, where great ponds had not been previously appropriated to individuals. The statements in the opinions are general, applying to ponds in towns which were settled and recognized before the adoption of the ordinance, as well as to those settled later. In several of the cases it distinctly appears that the pond is in a town which was a part of a town existing prior to 1641. So far as we are aware, there is no case in which it has been decided

that the title to a great pond is held by a city or town, and the only cases in which that is treated as possible or probable are those in which a prior grant from the Legislature was proved or assumed. West Roxbury v. Stoddard, 7 Allen, 158; Attorney General v. Revere Copper Company, 152 Mass. 444-448, 25 N. E. 605, 9 L. R. A. 510. In the former case there was a colonial act which was relied on as a grant, and in the latter a grant was distinctly shown. In the latter case is this language: "It is held that the title to great ponds which had not previously been granted is in the commonwealth for the benefit of the public, and if a pond had previously been granted to a town and had not passed to a private person, the legal title remains in the town, but the beneficial right is in the public." This is a distinct recognition of the difference between cases in which there had been an express grant to a town and those in which there had been no grant.

It may be well to consider what were the relations of towns to the local land when no grant was made, in the early years of the colony. They were undoubtedly authorized, expressly or by implication, to represent all public interests, to a large degree, in local matters, subject to the direction and control of the colony. They were in possession of the land within their recognized boundaries, with authority to appropriate it to individual settlers, and to manage for the general good that which was left in common. But, until it was appropriated, they had no title which they could set up against the general rights of the colony. In their distribution of land, and in the management of that which remained public, they exercised authority which originally belonged to the colony alone, and in the absence of a grant they acted as representatives of the central power and ownership. In Com. v. Roxbury, 9 Gray, 451-500, Chief Justice Shaw said: "Even an act of incorporation, without an express grant of the lands within it, would not, in our judgment, effect a transfer of the public lands. Such an act, with limited bounds, would pass municipal jurisdiction, but not soil." So on page 501: "All the early acts fixing boundaries between towns * * have no tendency to prove or disprove title. They affect the question of jurisdiction only, and for the purpose of the present inquiry, may be laid out of the case." See Litchfield v. Scituate, 136 Mass. 39-44. In Porter

v. Sullivan, 7 Gray, 441, 443, 444, Chief Justice Shaw says: "All private property or ownership in land, within the limits of the colony of Massachusetts, must be derived from a grant of the colonial government. Of course, all the early records of the colony are filled with acts prescribing bounds of each township; but such acts, intended solely to fix the limits of jurisdiction, are never used as instruments for granting land." In Inhabitants of West Roxbury v. Stoddard, 7 Allen, 158-169, Mr. Justice Hoar said of

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a town holding lands, where the grant was not to individuals and where the evidence tended to show a grant to the town: "Its functions were, then, of a two-fold nature -to distribute the lands among the freemen for the purposes of settlement, reserving such rights as might be deemed requisite for various public uses, and to do its part as a constituent member of the new state, bearing its proportion of the public burdens, clothed with limited powers of government in local matters, but amenable to the commonwealth and subject to its control and direction. There can be no doubt that, from the earliest period, the Legislature of the colony exercised the unquestioned authority of deciding what public duties should be discharged by the towns, including not only appropriations of money, but of lands. The right to change the boundaries of towns and to create new ones, from the territory of towns then existing, was never questioned." In City of Boston v. Richardson, 13 Allen, 146-150, Mr. Justice Gray uses this language: "On the 3d of March, 1635-36, the General Court enacted that the freemen of every town should 'have power to dispose of their own lands and woods, with all the priv. ileges and appurtenances of the said towns, to grant lots, and make such orders as may concern the well ordering of their own towns, not repugnant to the laws and orders here established by the General Court.' 1 Mass. Colonial Records, 172. It appears, however, by the records of the colony, that the rights and powers of the towns, in the lands within their limits, were considered as subordinate to the paramount power of the General Court, at its discretion, to grant lands in any town, not already granted to individuals. 1 Mass. Colonial Records, 101, 102, 103, 111, 129, 130, 240." So in Lynn v. Nahant, 113 Mass. 433-448, we find these words: "The lands within the limits of a town, which had not been granted by the government of the colony either to the town or to individuals, were not held by the town as its absolute property, as a private person might hold them, but by virtue of its establishment and existence as a municipal corporation, for public uses, with power by vote of the freemen of the town to divide them among its inhabitants, yet subject to the paramount authority of the General Court, which reserved, and habitually exercised, the power to grant, at its discretion, land so held by the town."

When the colonial ordinance of 1641-47 was adopted, the General Court took away from the towns, to which no grants had been made, all power to act further in reference to great ponds not appropriated to individuals, and appropriated the ponds to the use of the general public. Under the enactment of the General Court quoted above from City of Boston v. Richardson, towns, in the absence of a grant, had nothing but a delegated authority, which the General Court might at any time terminate. The general government

was the natural owner and controller of property held for the public, and as the towns had no absolute title, on the adoption of the ordinance the original title of the colony remained perfect, with no right in the towns any longer to interfere with it. This we conceive to be the ground on which the court has proceeded in reaching the conclusions quoted above. Our Legislature, in recent statutes, has recognized the rights of the commonwealth in great ponds, not only as to the public use of them, but also as to the title. St. 1869, p. 678, c. 384, § 9; Pub. St. 1882, c. 91, § 12; Pub. St. 1882, c. 196, § 11; Rev. Laws, c. 202, § 30; Rev. Laws, c. 96, §§ 15, 16, 18, 27. We are of opinion that the title to Chebacco Pond is in the commonwealth.

The defendant contends that, even if the pond is owned by the state, Loon Island is not included in it. The auditor found "that Loon Island is insignificant in size, rocky, and sterile; that previous to the defendant's occupation it has never been continuously used or occupied by anybody; and that it is worthless for agriculture or grazing. Fishermen and boating parties from picnic grounds on the shore and elsewhere have landed on the island when and as they pleased, without prohibition from any source, and doubtless gunners have built blinds thereon, behind which they have held tenure according to the patience of their kind." Whether all islands in great ponds are to be treated as parts of the ponds, under this ordinance, may be a question not free from doubt. Ordinarily a grant of a pond as a piece of real estate would include the entire area within its borders. Islands in rivers, within the boundaries, where the line extends to the thread of the stream, are included within grants. Lunt v. Holland, 14 Mass. 149; Ingraham v. Wilkinson, 4 Pick. 268, 16 Am. Dec. 342; Deerfield v. Arms, 17 Pick. 41, 28 Am. Dec. 276; Hopkins Academy v. Dickinson, 9 Cush. 544; Nichols v. Suncook Mfg. Co., 34 N. H. 345; Kimball v. Schoff, 40 N. H. 190. See People v. Warner, 116 Mich. 228, 74 N. W. 705, and Canal Commissioners v. People, 5 Wend. (N. Y.) 423, in which latter case Chancellor Walworth says that "our local law seems to have assigned

the beds of the lakes with the islands therein to the public." In an official answer to an inquiry by the board of harbor and land commissioners, Attorney General Knowlton gave an opinion that the islands in great ponds are the property of the commonwealth. Attorney General's Report for 1901, pages 55, 56. While there are grounds for an argument that the ordinance of 1641-47 had reference only to the waters of the great ponds and the land under them, there is much force in the suggestion that the expressions "great pond containing more than 10 acres of land,” and “great ponds lying in common though within the bonds of some town," refer to great ponds as physical

features of the country, including any islands within them. But in the present case we need not decide this question, for it is plain that this island is not one that would naturally be separated in ownership from the land under the water and from the water itself. There is nothing in it which ever would have called for an appropriation of it to any other than a public use, and it never has been so appropriated. The title to it has been treated by the town, and by everybody, as going with the title to the rest of the pond. Without finding it necessary to determine whether there might be an island of such size, and shape, and character that the town might lawfully appropriate it to a private person, after the passage of the ordinance of 164147, we are of opinion that the title to this island has never been separated from the title to the pond, and that it belongs to the commonwealth.

Judgment for the plaintiff.

(190 Mass. 288) SULLIVAN v. NEW BEDFORD GAS & EDISON LIGHT CO.

(Supreme Judicial Court of Massachusetts. Bristol. Feb. 26, 1906.)

1. MASTER AND SERVANT-INDEPENDENT CONTRACTORS.

A stevedore, who is paid so much a ton for unloading coal from a vessel, and who hired, discharged, paid, and had charge of the men who did the work, was an independent contractor.

2. SAME INJURIES TO SERVANT-APPLIANCES. At common law, and under Rev. Laws, c 106, § 76, providing that the employment of a subcontractor shall not bar the employer's liability for injuries to employés of the subcontractor from defects in the machinery furnished by the employer, an owner who contracts to have work done by an independent contractor with the owner's machinery owes the same duty to the employés of the contractor as if they were his own.

3. SAME ASSUMPTION OF RISK.

A servant employed to unload coal from a vessel assumes the risk of injury by the apparatus in use when he was employed, which, though not the best kind of apparatus, was not out of repair.

Exceptions from the Superior Court. Bristol County; Chas. A. De Courcy, Judge.

Action by James D. Sullivan against the New Bedford Gas & Edison Light Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Jas. P. Doran and Edwd. T. Bannon, for plaintiff. Chas. W. Clifford and Oliver Prescott, Jr., for defendant.

LORING, J. The bill of exceptions in this case does not give an intelligible explanation in all respects of the machinery here in question. The plaintiff was employed by one Mahoney to work in unloading a cargo of coal from a barge alongside of the defendant's wharf in New Bedford. It appeared that the usual method of unloading coal cargoes is to fill a tub, then hoist it on a der

rick or some apparatus in the nature of a derrick, and swing it in by a rope in the hands of a guy man until it is over the coal pocket where it is to be discharged, when another man, called a dumper, upsets the tub. The tub is then pulled back by the guy man until over the hatch in the coal vessel, when it is lowered into the hold. In the case at bar the tubs used by the defendant were heavy tubs of iron, 30 inches deep and 36 inches in width, with wheels in the bottom of them. The defendant, in its brief, says they had three. These wheels were boxed in and apparently were used to wheel the tubs from place to place. Just when it became necessary to wheel them about in connection with the defendant's automatic apparatus hereinafter described, if at all, does not appear. On the back of the tub was a latch which was automatically knocked out when the tub was over the coal pocket, whereupon the tub turned over bottom up and discharged its load of coal. The tub was fitted with a balance weight intended to cause it to right itself, and upon its doing so the latch would catch again, and hold it bottom down and mouth up. It was then run back until over the hold of the vessel, when it was lowered into the hold to receive a new load.

It is stated in the bill of exceptions that "the tub is operated by a cable passing over a movable truck which travels on two parallel tracks forming an inclined plane from the dumping place over the pocket down to a position over the hold of the barge." Just what this means we do not know. The plaintiff was hired by Mahoney on the day of the accident to take the place of a coal shoveler who had been taken with cramps. He was told by Mahoney to go into the hold of the barge, where he was set to work with Mahoney, shoveling a place for the tub on its return trip. The plaintiff's account of the accident was "that Mahoney told him to pair off with him (Mahoney), that he took a shovel and scraped the coal away just making room for the tub to come down, and he heard some one holler 'Look out!' and he jumped, and as he did so, something struck him and rendered him unconscious." It appeared that what hit him was a lump of coal which had got jammed between one of the wheel boxes and the side of the tub and had not fallen out when the tub was upset. One of the plaintiff's witnesses testifled "that, as Mahoney and plaintiff were scraping up coal to make room for the tub, the tub came down the run unlatched, and when it came to the forward end of the trolley the jar of the tub shook the lump of coal out of the tub, and it came down and hit the plaintiff on the head; that the tub came down the run mouth down and unlatched." It appeared from the plaintiff's cross examination that he had worked as a coal shoveler for five different

ployers in New Bedford; that for one

of them he had worked for seven or eight years, shoveling coal and doing other work on the coal wharf. At this place, and at another of these places, tubs with boxed-in wheels were in use, and he admitted that there was room enough for a lump of coal to get caught in these other tubs; but he testified that he never had known of coal being wedged in there-that is, between the wheel box and the side of the tub. It was testified to by the plaintiff and others called by him that it is the duty of the dumper when the ordinary method of unloading coal is used, to give warning if there is danger. It also appeared that the defendant's automatic device had been in operation for only 12 or 13 days, all told, before the plaintiff was hurt; that on the day the plaintiff was hurt "it did not work any different than it had worked every day before; that the tubs sometimes came down latched and sometimes unlatched, and that in this respect, there had been no difference from the beginning of his use of the apparatus; that there was nothing broken or out of repair on the day of the accident." The plaintiff called a witness who testified that he was "a boiler maker, and had been engaged in the business 18 years, and had had experience in the making and mending of coal tubs; that he had had experience in calculating the proportion of weight in the adjustment of tubs; that the ordinary tub is made so that, after being dumped, it swings back again and catches; that this is done by the counterbalance on the back of the tub; that these tubs of the coal company are balanced the same as the ordinary tubs; that the proper position when empty would be bottom down and mouth up." He further testified that, "assuming that an iron tub weighing about 1,200 pounds, three feet square and three feet deep, such a tub as is used for dumping coal from a barge, and intended to operate in such a manner that when suspended from the bail to the back of the tub [It] fails when empty to return to an upright position, and is not held by any force other than its own weight," he should attribute its failure to take its proper position to its "not being properly balanced"; that is, to its "not having sufficient weight on the back to bring it back to its proper position."

By the uncontradicted tetstimony there was, as we have said, nothing broken or out of repair on the day of the accident. It also appeared that the defendant's automatic apparatus was the only one in New Bedford, and that the plaintiff never had worked on it. Mahoney testified that he was a stevedore; that he was paid so much a ton for unloading the coal; that he hired, discharged, paid, and had charge of the men engaged in unloading the coal. The judge ruled that the plaintiff had not made out a case, to which he took the exception which is now before us. We agree with the defendant that, as matter of law, on the evidence, Mahoney was an