disturbed by its correction. The instances in which counsel have apparently acquiesced in it are probably few in number, and the amount involved in each instance so trifling as not to have attracted attention, or if observed, it may have been thought that the effort to get a correction would be more expensive to the suitor than to pay the amount illegally taxed. There is nothing in the practice which should induce the court to adhere to it if it is without statutory warrant. And about that I do not think there can be the least doubt. Phipps v. Ackers, 9 Cl. & Fin. 598; O'Connell v. Reg., That mariners could sue for wages in admiralty, although against the statute, Smith v. Tilly, 1 Keb. 708, 712; Clays v. Sudgrave, 1 Salk. 33, criticised in Maher v. State, 1 Port. (Ala.) 268. That a stay of execution, after levy, does not discharge the debt, McGinnis v. Lillard, 4 Bibb, 491; Sterling v. Van Cleve, 7 Hal. 293. That one in contempt may be committed "until the further order of the court." Yates v. Lansing, 9 Johns. 420. Nor can the principle which controlled the decision in State v. Kelsey, 15 Vroom, 1, be applied to this case. There it will be remembered, a statute fairly susceptible of two widely-different constructions had received a practical construction by the joint action of the governor, Legislature, treasurer and secretary of State, under which considerable sums of money had been disbursed from the treasury of the State annually for a period covering more than fifty years. In an action to recover a part of the money so paid it was held, that while it was quite clear that the statute would not bear the construction which had thus been given to it, still as all the departments of the government whose duty it was to take action under the statute had understood the statute in that way, and had in-cution out of a Justice's Court, Lewis v. Jones, 1 variably acted upon such understanding, it was too late for the State to ask to have the construction which had prevailed without the least deviation for so long a period changed. It is manifest that the two cases are so fundamentally different in all their leading features that it is impossible to apply the rule of decision adopted in the first to the decision of the last. The items objected to must be disallowed. NOTE. The maxim "Communis error facil jus" has been resorted to in the following miscellaneous cases: Where the error and sufferance of the king and the courts has sanctioned it, Colt v. Glover, Hob. 147. To construe a clause of the Constitution, Stuart v. Laird, 1 Cranch, 299; Ribble v. Bedford, 7 Serg. & R. 394; Eakin v. Raub, 12 id. 346; Kneeland v. Milwaukee, 15 Wis. 470; Talcott v. Pine Grove, 1 Flip. 155; Endlich Stat., § 527. That a Legislature may grant divorces, Cronise v. Cronise, 54 Penn. St. 261; or dissolve a church corporation, Turpin v. Locket, 6 Call, 150. That an unconstitutional statute had been acquiesced in for a long time, Bruce v. Schuyler, 9 Ill. 267; Titus v. Latimer, 5 Tex. 439. That statutes may be construed thereby, Union Ins. Co. v. Hoge, 21 How. (U. S.) 66; Ezekiel v. Dixon, 3 Ga. 153; Reg. v. Sussex, 2 B. & S. 680; Baldwin v. Blackmore, 1 Burr. 601; but see O'Connell v. Reg., 11 Cl. & Fin. 155; New River Co. v. Land Tax Com'rs, 2 H. & N. 139. That an elector may vote elsewhere than at his residence, Chase v. Miller, 41 Penn. St. 424. The the assignor of a bond is responsible thereon without an express contract, Smallwood v. Woods, 1 Bibb, 543; see Garretsie v. Van Ness, Pen. (N. J.) 20. Also in matters of practice in the courts That in levying a fine the dedimus potestatem may bear teste before the writ of covenant, Herbert v. Binion, 1 Roll. 223. That a distress warrant for the king's tax might issue before demand of the tax, East India Co. v. Skinner, Comb. 342. That justices could make an order for the payment of a certain sum for the weekly support of a pauper, Walton v. Spark, Comb. 321; 1 Ld. Raym. 42. That a former decision of the court, although erroneous, should be followed, Jones v. Tapling, 12 C. B. (N. S.) 846; Devaynes v. Noble, 2 Russ. & Myl. 506; That papers may be served on the clerk of the court, without proof of inability to serve them on the opponent's attorney. Ayrault v. Houghtailing, 1 Hill, 636. That a return day need not be mentioned in an exe Ashm. (Penn.) 54. That a scire facius to revive a judgment need not conform to the statute, Dougherty's Estate, 9 Watts & Serg. 196. That proceedings in partition may be stayed until other parties in interest have been notified, Norris' Case, 11 Phila. 12. That judgment-creditors in cases of alleged fraud might appeal, as well as the defendant, Watson v. Willard, 9 Penn. St. 93. That a scroll annexed to a justice's transcript is equivalent to a seal, Lewis v. Hazel, 4 Harring. 474; see Johnson v. Nelson, 3 W. L. M. (Ohio) 306; Hopewell v. Amwell, 1 Hal. 169. That a venire for a grand jury needs no seal, Maher v. State, 1 Port. (Ala.) 268. That a special jury is requisite to an issue out of chancery, McGowan v. Jones, 2 Charlt. 185. That judgment in ejectment could not be entered against the casual ejector until after the issue against his landlord had been tried, Bonta v. Clay, 5 Litt. 131. That a special administrator might be appointed without any statutory authority, Rogers v. Beiller, 3 Mart. (O. S.) 671. That the clerk of a court may act by deputy, Kirkman v. Wyer, 10 Mart. (O. S.) 80; De Marigny's Case, 22 La. Ann. 173; or a sheriff, McMurphey v. Campbell, 1 Hayw. 182; or a county treasurer, Malonny v. Mohar, 1 Mich. 30. That a sheriff may farm his shrievalty to a deputy, Salling v. McKinney, 1 Leigh, 60. That a recognizance may be sued in the name of the president of the Orphans' Court, who is not a corporation, and not the successor to the judge to whom the recognizance was acknowledged by name, Eshelman v. Shuman, 13 Penn. St. 564. That executors need not be notified of the issuing of a scire facias on a judgment recovered against their testator in his life-time, Taylor v. Young, 71 Penn. St. 92, Agnew, J., dissenting. That a justice's criminal warrant may be made returnable before him, "or some other proper authority," Brackett v. State, 2 Tyler, 168. That a sheriff's sale may be advertised before the return of the writ, Burd v. Dansdale, 2 Binn. 91; McCormick v. Meason, 1 Serg. & R. 98. That a statutory certificate had not been filed with the probate of a will, Warfield's Will, 22 Cal. 71. That a deed for lands made under a power of attor ney, acknowledged before the mayor of a city, instead of being proved before him by witnesses, is admissible in evidence, Milligan v. Dickson, Pet. C. C. 440. Also in matters relating to lands That twenty years' adverse possession barred an ejectment, although the statute allowed thirty years in which to bring such action, Hallett v. Forest, 8 Ala. 267. That an exact compliance with the statute as to a married woman's acknowledgement of a deed, in order to bar her dower in the lands thereby conveyed is unnecessary, Nantz v. Bailey, 3 Dana, 119; Jackson v. Gilchrist, 15 Johns. 110; Davey v. Turner, 1 Dall. 14; Lloyd v. Taylor, id. 17; Troup v. Haight, Hopk. Ch. 251; Brown v. Farran, 3 Obio, 155; Chesnut v. Shane, 16 id. 608; Manchester v. Hough, 5 Mason, 69; Watson v. Bailey, 1 Binn. 478; Kirk v. Dean, 2 id. 345; see Currie v. Page, 2 Leigh, 624. That a judgment against a tenant in tail does not become a lien on the fee after he has conveyed the premises by deed of bargain and sale, Maslin v. Thomas, 8 Gill. 24. That "orphans means "minors" so far as their rights of property are affected by a statute which thus designates them, Hall v. Wells, 54 Miss. 302. That the law as it exists at the husband's death regulates his widow's right of dower, and not that existing at the time of the marriage, Riddick v. Walsh, 15 Mo. 537. That a deed for township lands in the name of the town agent, instead of the township, is valid, Cofran v. Cockrun, 5 N. H. 462. That State lands may be conveyed by and in the name of an agent, instead of the State's name, and without affixing the State seal to the deed, Ward v. Bartholomew, 6 Pick. 414; Bank of Utica v. Mersereau, 3 Barb. Ch. 577. That a wife divorced a vinculo is not entitled to dower, Gleason v. Emerson, 51 N. H. 405. That a wife may release her dower by simply signing and acknowledging her husband's deed, without her name being mentioned in the deed, Burge v. Smith, 27 N. H. 338; Allen v. Reynolds, 4 J. & S. 298. That a married woman, before the statute authorizing it, might convey her lands by joining in her husband's deed therefor, Constantine v. Van Winkle, 6 Hill, 205. That a statute authorizing an acknowledgment of a deed to be taken before a justice of the peace, sanctions one before a justice of the Supreme Court, McKeen v. De Lancy, 5 Cranch, 32. That an authority in the freemen of every town “to manage, dispose and divide their lands," enabled them to sell, Rogers v. Goodwin, 2 Mass. 475. That by the creation of a trust the right of dower would be prevented from attaching, D'Arcy v. Blake, 2 Sch. & Lef. 389; see Ocean Beach v. Brinley, 7 Stew. Eq. 438. That only two attesting witnesses to a will are necessary, Panaud v. Jones, 1 Cal. 498. That the Mexican laws on the subject of usury and implied warranty in the sale of land had been abrogated before any formal legislation abolishing those laws, Fowler v. Smith, 2 Cal. 49. That a riparian owner's land extends to low-water mark, Bell v. Gough, 3 Zab. 663; see Beaufort v. Swansea, 3 Exch. 413. That an appraiser of lands to be sold by an administrator may afterward purchase them at the sale, Armstrong v. Huston, 8 Ohio, 558, Hitchcock, J., dissenting. That a growing crop may be reserved by parol from the operation of a deed for the lands whereon it stands, Baker v. Jordan, 3 Ohio St. 442. That a purchaser of lands at a tax sale need not pay the officer's fees for entering the acknowledgment of his deed, Turk v. McCoy, 14 Serg. & R. 352. That a dividing line between two counties ran in a certain direction, Beale v. Patterson, 3 Watts & Serg. 381. That commissioners of highways have a discretion as to the running of a road in a straight line, where only the termini are designated in the petition, Wiggin v. Exeter, 13 N. H. 310. That a survey may include a certain tract without specifying in exactly what part thereof it lies, Kendrick v. Dallum, 1 Overt. 499. That the oldest entry has the preference in survey. ing, Barnet v. Russell, 2 Overt. 18. That an administrator might sell lands without an order, Hazard v. Martin, 2 Vt. 84. That slaves might be entailed without lands, Blackwell v. Wilkinson, Jeff. (Va.) 79. That where a deed is reacknowledged the time limited for recording it begins to run from such reacknowledgment, Eppes v. Randolph, 2 Call, 152. That paying for land and taking possession does not convey a legal estate therein whereon to found an ejectment, Claiborne v. Henderson, 3 Hen. & Munf. 381. The courts refused to follow the maxim in these cases: To set up a usage contrary to the rules of evidence, Rex v. Eriswell, 3 T. R. 725: see Janvrin v. De la Mare, 14 Moo. P. C. 334; O'Connell v. Reg., 11 Cl. & Fin. 253, That the justices might issue an order to defray the expenses of a county litigation, Rex v. Essex, 4 T. R. 594, Kenyon, C. J. To allow full costs where the plaintiff justifies a battery as well as an assault, Smith v. Edge, 6 T. R. 564. That an attorney justified under a conviction by magistrates under a wrong statute, Hart v. Frame, 6 Cl. & Fin. 199; and a conveyancer, Stevenson v. Rowand, 2 Dow. & Cl. 113. That a sheriff who seizes and sells the goods of a bankrupt under a fi. fa. before commission, but after an act of bankruptcy, without notice of the act of bankruptcy, is liable in trover, Garland v. Carlisle, 2 Cr. & Mee. 92, Vaughn, B., dissenting. That an unsealed undertaking was given in an attachment instead of a bond, Van Loon v. Lyons, 61 N. Y. 25. That an attorney may contract for a contingent fee, Key v. Vattier, 1 Ohio, 63. That an indictment for murder need not aver a purpose to kill, Kain v. State, 8 Ohio St. 320. That taking honey from a hive of wild bees is not a felony, Wallis v. Mease, 3 Binn. 551. That a justice of the peace had jurisdiction by attachment over a non-resident, Den v. Wharton, 1 Yerg. 126. That the sureties of an executor are bound for the proceeds of land sold by him, Jones v. Hobson, 2 Rand. 501. See also Isherwood v. Oldknow, 3 M. & S. 396. WATERS AND WATER-COURSES - GREAT MASSACHUSETTS SUPREME JUDICIAL COURT, WATUPPA RESERVOIR Co. v. CITY OF FALL RIVER. the precincts of the town, and may pass and repass on foot through any man's land, so that they trespass not on corn or meadow land, and that no town shall appropriate any great pond to any particular person, establishes a rule of property throughout the State of Massachusetts, vesting in it both the jus privatum and jus publicum in the great ponds, and the Legislature can appropriate their waters to public uses without making compensation to owners of land on natural streams flowing therefrom. Chapter 31 of Massachusetts Statutes of 1826, chartering a corporation, and granting it the power to make reserves of water in a great pond by erecting a dam across its outlet, and to draw it off in such quantities, at such times and in such manner as shall be most for the interest of all concerned, does not grant the public rights in the pond, and the corporation holds its right to the water subject to the paramount right of the State to use it for public purposes. APPEAL from Superior Court, Bristol county. Bills by Watuppa Reservoir Company and Troy Cotton and Woolen Manufactory against the city of Fall River, to restrain defendant from drawing water from the North Watuppa pond. Decree for complainants, whereupon defendant appeals. J. F. Jackson, for defendant. MORTON, C. J. This case presents an important question, not merely on account of the amount involved, but because it affects the rights of the Commonwealth in all the great ponds within its borders. The statute of 1886, chapter 353, section 1, provides that "the right is hereby granted to the city of Fall River to draw daily from the North Watuppa pond not exceeding 1,500,000 gallons of water, in addition to the amount of water already condemned by said city, under the provisions of chapter 133 of the Acts of the year 1871; and without liability to pay any other damages than the State itself would be legally liable to pay. Parties holding, in respect of said pond, any privileges or grants heretofore made, and liable to revocation or alteration by the State, shall have no claim against said city in respect of water drawn under this grant." It is plain that it is the purpose of this statute to assert the rights of the State to use the waters of the great ponds for public purposes, and to confer upon cities and towns the right so to use the waters without making compensation to the littoral proprietors, or to those owning land or water privileges, upon any stream flowing from the pond, who may be damaged by such use. In the case before us a natural stream, not navigable, known as the "Fall River," flows from the Watuppa ponds into tide-waters, having a fall in the whole of about 180 feet, divided into a succession of water privileges which are of great value. The city has proceeded under the statute above cited to take the waters of the pond, and it is admitted that the water withdrawn substantially diminishes the flow of the stream, and causes substantial injury to the waterpower at such privilege. The question is thus presented whether the State can constitutionally authorize a city or town to use the waters of a great pond for public purposes, without making compensation for damages inflicted upon the owners of land or privileges upon a stream flowing from it. The answer to it must depend upon the nature of the ownership or interest which the State has in the great ponds and their waters, and upon the character and limitation, if any, of the title of such owners of land on such stream. The record in this case merely states that the plaintiff and the several corporations interested own the land on both sides of the Fall river. It does not show how or when they or their predecessors acquired their titles. Originally, by grant from the king, the title to all the land, including the great ponds within their boundaries, was in the colony of Plymouth and colony of Massachusetts Bay; and after the province charter was, unless previously parted with, in the province of Massachusetts Bay, and after the Revolution was in the State. Therefore the predecessor in title of the plaintiff, and of the owners upon the Fall river, must have derived their title either from the colony of Plymouth or from the province of Massachusetts Bay, or from the State. There is nothing to show, and it is not claimed, that they have any grant which conveys to them the title to the ponds or the waters thereof. We believe only one instance is known in which a great pond has been conveyed to individuals-that of Humfrey's pond, situated in Lynnfield and Danvers. Com. v. City of Roxbury, 9 Gray, 451, 528n.; West Roxbury v. Stoddard, 7 Allen, 158. on the stream. If an individual owus a pond which has a natural stream flowing from it, the land bordering on which is owned by others by a title in fee, without any limitations, it may be that he cannot lawfully fill up the pond or divert its waters by artificial channels or conduits, to the substantial injury of those who own land Where lands border upon a natural stream, each of the proprietors owns the fee to the thread of the stream, and has a right to the natural flow of the stream, subject to the right of every other proprietor to make such use of the water, as it passes through his land, as is not unreasonably injurious to all the others who with himself have a common right to the stream. Each proprietor has the right to the benefit of it as it passes through his land, for all the useful purposes to which it may be applied, and no proprietor above or below has the right to unreasonably divert, obstruct or pollute it. Johnson v. Jordan, 2 Metc. 234; Elliot v. Railroad Co., 10 Cush. 191; Cummings v. Barrett, id. 186; Tyler v. Wilkinson, 4 Mason, 397. But where a man owns a pond and the whole of the stream flowing from it, he would probably have the right to divert and use the waters, although it sensibly diminishes the natural flow of the water in the stream, and if he sells the land on the stream, he can reserve to himself the right so to divert and use the waters. Without going into details, this is a brief statement of the rights of private individuals in ponds and streams. But the right of the Commonwealth is of a different nature. The colonies and provinces derived their rights from the king under their several charters. These charters revested in the grantees, not only the right of soil, but also large powers of government, and the prerogatives of the crown in the sea-shores, bays, inlets, rivers and other property, which were held for the use and benefit of all the subjects. As stated by Chief Justice Shaw, the effect of the charters was "to grant to the company both the jus privatum and the jus publicum of the crown-the jus privatum, or title to the land, to be held in fee, parcelled out to corporations and individuals, to be held in fee, subject to the rules of the common law, as private property; and the jus publicum, or all those rights of the crown in the sea, sea-shore, bays and arms of the sea where the tide ebbs and flows, in trust for public use of all those whose should become the inhabitants of said territory and subjects of said government." Com. v. Roxbury, 9 Gray, 451, 483; Com. v. Alger, 7 Cush. 53. These rights and powers, both the jus privatum and the jus publicum, to the extent to which they existed either in the king or Parliament, revested in the colonial and provincial governments, and after the Revolution vested in the Commonwealth, including all the prerogatives and rights of the crown, and powers of regulation, which had at any time previously been held and exercised by the government of England. Com. v. Alger, ubi supra. The colony ordinance of 1641-47 provides that "every inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows, within the precincts of the town where they dwell, unless the freemen of the same town or the general court have otherwise appropriated them; provided that no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land, and that no man shall come upon another's property without their leave otherwise than as hereafter expressed. The which clearly to determine, it is declared that in all creeks, coves and other places, about and upon salt-water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low-water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further; provided that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels in or through any sea, creeks or coves to other men's houses or lands. 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 on foot through any man's property for that end, so they trespass not upon any man's corn or meadow." Ancient Charters & Laws, 148. This is now generally spoken of as the "Colony Ordinance of 1647," although parts of it were enacted in different years. It has continued in force through the provincial and State governments, except that by the present laws great ponds are defined to be ponds the area of which is more than twenty acres, except that recent legislation has made some changes as to the rights in great ponds which do not affect the question before us (Stat. 1888, chap. 318; Stat. 1869, chap. 384; Pub. Stat., chap. 91, §§ 10, 11), and it is in force throughout the whole territory of this State, including those parts which were formerly the colony of Plymouth, Nantucket and Dukes county, and also in Maine, although none of these were under the jurisdiction of Massachusetts Bay when it was enacted. Barker v. Bates, 13 Pick. 255; Mayhew v. Norton, 17 id. 357; Weston v. Sampson, 8 Cash. 347. It is true that it did not extend to those places by any positive enactment now known, passed after the union of the colonies under the charter of 1692, but it has been universally accepted and regarded as establishing a rule of property throughout the State. As stated by Chief Justice Shaw in Barker v. Bates, "though the rule in question cannot be traced to its source, as a rule of positive law, we are of opinion that it is still a settled rule of property in every part of the State, and founded upon a basis quite as firm and 'immovable; that being a settled rule of property, it would be extremely injurious to the stability of titles and to the peace and interest of the community to have it seriously drawn in question." The cases we have cited deal with questions as to the title and rights to the sea-shore; but the laws of Massachusetts from the earliest times have regarded the rights of the public in the great ponds as similar to their rights in the sea-shore. Drury v. Nattick, 10 Allen, 169, 179; Com. v. Roxbury, ubi supra; Paine v. Woods, 108 Mass. 160, 169. The ordinance dealt with the subject of the great ponds, as well as with the seashore, and it established a rule of property as to their ownership and uses. Although fishing and fowling are the only rights named in the ordinance, it has always been considered that its object was to set apart and devote the great ponds to public use; and that "with the growth of the community, and its progress in the arts, these public reservations, at first set apart with reference to certain special uses only, become capable of many others which are within the design and intent of the original appropriation. The devotion to public use is sufficiently broad to include them all, as they arise." West Roxbury v. Stoddard, 7 Allen, 158. Under the ordinance the State owns the great ponds as public property, held in trust for public uses. It has not only the jus privatum, the ownership of the soil, but also the jus publicum, and the right to control and regulate the public uses to which the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil, or in the waters, unless it be by grant from the Legislature. Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 id. 222. The power of the Legislature to regulate the rights of fishing and other public rights is very broad. Thus it may regulate the time and manner of fishing in the sea within its limits, and may grant exclusive rights of fishing. Instances of the exercise of this power in regard to the great ponds are found in the various statutes leasing such ponds to individuals, which have been held to be valid, although they grant exclu sive rights to individuals, and exclude others from the exercise of rights to the use of the pouds, to which they were before entitled. Com. v. Vincent, 108 Mass. 441; Com. v. Tiffany, 119 id. 300; Cole v. Eastham, 133 id. 65. In view of the rights and powers of the State in and over the great ponds, it seems clear that the rights of proprietors owning land, either on the pond or on any streams flowing from it, cannot be decided by the rules of the common law applicable to ordinary streams. They must be determined with reference to the ordinance, and the rule of property established by it, and we are of opinion that they must be regarded as subordinate, and subject to the paramount rights of the public declared by the ordinance. All who take and hold property liable to be affected by this rule of property take and hold under and in subordination to it. Each grant carries with it an implied reservation of these paramount rights unless the terms of the grant exclude such reservation; so that the grant from the State of land upon a stream flowing from a great poud did not convey an unqualified fee, with the right to enjoy the usual and natural flow of the stream, but a qualified right, subject to the superior right of the State to use the pond and its waters for other public uses if the exigencies of the public, for whom it holds the pond in trust, demand it. The case of Fay v. Aqueduct Co., 111 Mass. 27, is similar to the case at bar. In that case the defendant was an aqueduct corporation to which the Legislature had granted the right to draw water from a great pond, providing for the payment of damages suffered by any one by the taking of the water. The plaintiff was a littoral proprietor, and claimed that his house was rendered uncomfortable and unfit for the purposes for which it was designed. But the court held that he could not recover damages for this, as he had no right in the pond or its waters, and because, as stated in the opinion, "great ponds are public property, the use of which, for taking water or ice, as well as for fishing, fowling, bathing, boating or skating, may be regulated or granted by the Legislature at its discretion." In the case at bar, by the act of 1886, the Legislature authorized the city of Fall River to draw daily 1,500,000 gallons of water from the North Watuppa pond, and to "apply the water taken under this act to all domestic uses, the extinguishment of fires, and to the public uses of the city." These are all public purposes. The Legislature, acting on the conviction that an abundant supply of pure water to the people is of paramount importance, has deemed it to be a wise public policy to appropriate the waters of this pond to those public uses, without making compensation to those, who owning land on the natural stream flowing from it, have been accustomed to use the water for power as it flows through the stream. Such owners have no vested rights in the waters of the pond, and a majority of the court is of the opinion that the Commonwealth may thus appropriate the waters by its direct action, or may authorize a city or town to do so, without being legally liable to pay any damages to the littoral owners on the pond or on the stream. As this case depends upon the effect of the colony ordinance, the decisions in England cannot be of assistance to us. They depend upon the common law, which as we have said, is changed by the ordinance. The same may be said of the decisions in the other States of this country, most of which are governed by the rules of the common law. In New York and Pennsylvania it has been held that the rules of the common law do not apply to such great navigable streams as the Hudson, Mohawk and Delaware rivers, though they may not be tidal rivers throughout; that the title to such streams is in the government in trust for the people; and that the State may use the waters, or authorize their use, for the purposes for which they are held in trust, without any compensation to riparian proprietors who are damaged by such use. People v. Appraisers, 33 N. Y. 461; Varick v. Smith, 9 Paige, 547; Carson v. Blazer, 2 Bin. 475; Shrunk v. Navigation Co., 14 Serg. & R. 71; Rundle v. Canal Co., 14 How. 80. The industry of counsel has furnished us with references to between two and three hundred water acts, passed by the Legislature, including some in which the right to use the waters of great ponds is granted, in most of which provision is made for compensation to those whose mill privileges or water-rights are injured. These show that the policy of the State has heretofore been to provide such compensation, but they do not show that the State has not the power to use the waters without compensation. The act we are considering seems to make a change in the public policy in regard to the waters of the great ponds, as since its enactment several other acts have been passed containing the same provisions as to damages. The plaintiffs contend that the charter of the Watuppa Reservoir Company operated as a grant to the company of the right to use and control the waters of the Watuppa ponds for the purposes of power, and for the benefit of the manufacturing establishments on the Fall river, of which it was and is composed. By its charter this company was granted the "power to make reserves of water in the Watuppa ponds, so called, by erecting a dam across the outlet of said ponds, in the town of Troy, in the county of Bristol, so as to raise the water in said ponds two feet higher than the dam already erected by the Troy Cotton and Woolen Manufactory, in said town of Troy, and to draw off said reserved water in such quantities, at such times, and in such manner as they shall judge to be most for the interest of all concerned." Stat. 1826, chap. 31. State may make of the pond. There is no necessary implication of a grant of the exclusive use of the waters. The charter gives a right to raise the level of the pond, and to use the water as it flows from it, but there is nothing to indicate the intention of the State to grant away the public rights in the pond. Whether it be construed as a revocable license, or as a grant of a vested right, the company took and holds its rights subject to the paramount right of the government to use the water for the public purposes for which it was held in trust. For these reasons a majority of the court is of the opinion that this bill cannot be maintained. Bill dismissed. Knowlton, William Allen and Charles Allen, JJ., dissenting. UNITED STATES SUPREME COURT ABSTRACT. CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS -RAILROAD COMPANIES-REGULATION OF RATES.- The charter of a railroad company (act Ga., Dec. 18, 1835) gave it the exclusive right of transportation of persons and property over its railroads so long as it should see fit to exercise the right; "provided that the charge of transportation or conveyance shall not exceed" certain specified rates. Held, that this was not a contract between the State and the company that the latter might charge whatever rates it chose, within the prescribed limits, but was in effect a provision that if the company should exceed those limits the "exclusive right" previously granted might be forfeited. The company was therefore subject to the provisions of subsequent legislation, establishing a commission to regulate railroad tariffs. It has been adjudged by this court in numerous instances that the Legislature of a State,has the power to prescribe the charges of a railroad company for the carriage of persons and merchandise within its limits, in the absence of any provision in the charter of the company constituting a contract vesting in it authority over these matters, subject to the limitation that the carriage is not required without reward, or upon conditions amounting to the taking of property for public use without just compensation; and that what is done does not amount to a regulation of foreign or inter-State commerce. Stone v. Trust Co., 116 U.S. 307, 325, 331; Dow v. Beidelman, 125 id. 680. The incorporation of a company by which numerous parties are permitted to act as a single body for the purposes of its creation, or as Chief Justice Marshall expresses it, by which "the character and properties of individuality" are bestowed on a collective and changing body of men (Bank v. Billings, 4 Pet. 514, 562); the grant to it of special privileges to carry out the object of its incorporation, particularly the authority to exercise the State's right of eminent domain that it may appropriate needed property-a right which can be exercised only for public purposes; and the obligation assumed by the acceptance of its charter, to transport all persons and merchandise upon like conditions and upon reasonable rates-affect the property and employment with a public use; and where property is thus affected the business in which it is used is subject to legislative control. So long as the use continues the power of regulation remains; and the regulation may extend not merely to provisions for the security of passengers and freight against We do not think that this can be construed as granting any part of the pond, or any absolute and exclusive right to use and control the waters of the pond. It does not do this in terms or by necessary implication. It is a familiar rule that grauts made by the government are to be construed in favor of the grantor; and this is especially true when they affect the interests of the people which are held in trust by the government. The State is not presumed to grant away such rights and franchises, unless it is done in clear terms, or by an implication which is strictly necessary. Com. v. Roxbury, ubi supra; Martin v. Wad-accidents, and for the convenience of the public, but dell, 16 Pet. 367, 411; Canal Co. v. Wright. 9 Watts & S. 9. The charter does not grant the pond or the waters in it. The right to use the surplus water is of value, though it is held subject to any future use the also to prevent extortion by unreasonable charges, and favoritism by unjust discriminations. This is not a new doctrine, but an old doctrine, always asserted whenever property or business is by reason of special |