for selling lots. At the outset it was a matter of discussion among the parties interested. Lots fronting upon the parks or having an unobstructed view of them, were deemed more attractive. Assurances were freely given by those having charge of the sale of the lots that these spaces or parks should always be kept open. Four of the original owners testify in distinct terms that it was the intention of those interested in the enter prise to make them open parks, free to the public forever. This is so extremely natural and probable, and any other course would be so unlikely, that evidence of a contrary in tention on the part of any one of them would be received with some distrust. If the corporation had announced at the time of making the sales that it reserved the right to cut up the open spaces into building lots to sell them, after the village should be established, it would no doubt have diminished the sales. If the corporation had an intention to reserve this right, the course pursued of inviting purchasers was inconsistent with common honesty.

would be overborne by the action of the other four; but it seems to us more reasonable and probable to suppose that at the time they acquiesced, if they did not fully concur, in the views of the majority.

It is not necessary to go nicely into the question, at what time the intention to devote these open spaces to the public became fully formed. There certainly was an intention that some spaces should be left open, at an early day. Before the corporation was created a plan showing such spaces was prepared and put on record. Some changes were afterwards made in the boundaries. The land containing "Waban Park" was subsequently purchased.

The limits of these three several open spaces were finally settled after the corporation was formed. For a time, there was a somewhat fluctuating intention, so far as limits and boundaries were concerned. But the limits as shown on the last two plans may be taken as representing the final conclusion of the corporation as to the limits of the spaces that were to be left open.

The defendant concedes that some of the The fact that not much was done to adorn original owners and stockholders in the cor- these spaces, and that the corporation itself poration gave such assurances to purchasers did whatever was done in this respect, and and in various ways gave wide publicity to to some extent it seemed to exercise a certain the plan of having these places kept open as control over the land, is not of much weight public parks; but he contended that two of in opposition to the conclusion to which we them did not assent to this course. One of have come. The chief element of a public these, Mr. Darrow, died in 1871; the other was a witness in the case. As to both of these, the evidence is satisfactory to show that they assented to the plan in manner and form as it was put forth to the public. Mr. Darrow at the outset thought too much land was devoted to the parks, but after discussion, acquiesced in the opinion of the majority. The other one, while in his direct testimony he denied that he ever assented to the plan, or that there was ever any authority to bind the owners of the land or the corporation by a dedication of the parks to the public, yet admitted that he knew of the existence of the plans and of their being on record, that he had seen them at many places, and that he gave away some of them himself; probably some of each.

The defendant also suggests that one Worth was interested, and never assented to the dedication. Worth held a bond from Bradley for one half of Bradley's share of the proceeds of sales, but his title was not such as to give him a voice in the proceedings, or to make his assent or dissent material. He did not become a stockholder in the corporation till 1877.

Without dwelling upon various other particulars of the evidence, which tend in the same direction, we cannot doubt that it was a part of the scheme of the enterprise or speculation that the public should understand that these spaces should be left open for public use, and that no right was reserved to sell them for building lots; and that the corporation held out to the public this assurance, and at the time fully and fairly intended to give up this right; and that the two persons upon whose supposed dissent the defendant relies did not in fact dissent at the time. If they had done so, their dissent

park, in such a place, at least till the village is well settled, is to have the land kept open. The adornment would naturally come later if at all. The corporation did a little toward improving and caring for these open spaces. It had some interest in doing so. Ordinarily, when parks are established for public use, the municipal authorities exercise control over them. It was not so here. Whatever was done was done by the corporation, which to some extent did what municipal authorities usually do. Washb. Easem. *146, 147, 156. The corporation was interested in pushing its speculation, and as long as it had many lots left for sale it did something for the parks; but afterwards they were much neglected.

On the whole, we think the evidence is sufficient to show an offer to the public of the spaces shown on the last two plans, as Ocean, Hartford and Waban Parks.

In Atty-Gen. v. Whitney, 137 Mass. 450, where a majority of the court thought there was not sufficient evidence of such an intention, the evidence of dedication was far less strong.

The acceptance of such a dedication at common law need not appear of record, and need not be by the town. The acceptance is by the public at large, and the principal thing to show it is used by the public. Washb. Easem. *128, 139, 140. There is no need of a formal grantee. The fee remains in the original owner. Cincinnati v. White, 31 U. S. 6 Pet. 431, 8 L. ed. 452. No assent of the town is necessary, because no burden is put upon the town, as in the case of a way. The improvements upon a park thus dedicated are left to be made by those who are interested. The town may take it up. or it may be left to individuals. If in a

seaside summer resort no improvements at all are made, there will still be some benefit from having a space left for air, and for an open unobstructed prospect. Whether the easement of a public park could be accepted merely by enjoying an unobstructed view over it of the ocean need not be considered. Various other acts of use of all the parks are shown, sufficient to show an acceptance of them by the public. Such acceptance need not be very specific.

in

The defendant contends that such accept-1. ance must have been by the Town of Edgartown originally, or by the Town of Cottage City afterwards. The chief argument support of this view is, that there must be somebody who can be held responsible for the abatement of a nuisance, if one should. exist upon the property; and that if the dedication is not to the town, and accepted by the town, there is virtually no owner of the property. This argument is of force, but the technical answer is that the fee remains in the original owner. The dedication for a park carries only an easement. This easement is not in the town, but it is in the public at large. There may be inconveniences in this doctrine, in cases which are supposable and possible, but the doctrine itself has been widely adopted, and has been expressly recognized as in force in this Commonwealth. Abbot v. Cottage City, 143 Mass. 521, 3 New Eng. Rep. 773. We need not consider whether this mode of accepting a park has been done away with by Stat. 1882, chap.

154.

The defendant further contended that he was a bona fide purchaser for value, without notice, and that his title should therefore be protected. This argument, however, cannot prevail, for two reasons. In the first place, purchasers of real estate must take notice of such a fact as a dedication to the public, in like manner as they must take notice of a title gained by adverse possession. There are various infirmities to which titles which appear good on the records are exposed. Gil. lespie v. Rogers, 146 Mass. 610, 6 New Eng. Rep. 297, and cases there cited. If a dedication has become complete, the original owner cannot afterwards resume control or convey the land free from the easement of the public, any more than if the easement had been gained by prescription. Easem. *139; Goddard, Easem. Greenl. Ev. § 662; M. E. Church v. Hoboken, 33 N. J. L. 13.

Washb. 181; 2 Trustees

But, moreover, in the present case, the defendant was fully put upon inquiry as to the

facts, and made a laborious investigation of

WATUPPA RESERVOIR CO.

v.

CITY OF FALL RIVER.

TROY COTTON & WOOLEN MAN-
UFACTORY

v.

SAME.

Mass.......

The title to great ponds passed under deeds from Plymouth Colony, which plainly intended to convey them although the intention appears only from the habendum clauses of the deeds, no mention of them being found in the granting clauses.

The fact that a town was incorporated two years after the Colonial Ordinance of 1847, declaring the public rights in great ponds, became law, with boundaries nearly coincident with those of a prior private land grant, will not cause the territory embraced thereby to be treated as town property in determining the application of the ordinance to ponds situated therein, where the town is not shown to have ever assumed proprietorship over the land or ponds, and they appear to have been always dealt with as private property.

3. The rights in a great pond which had been appropriated to private persons, and was held by them as private property at the time the Colony Ordinance of 1647, declaring the public rights in great ponds, became operative, were not affected by that ordinance.

4. Where a colony conveyed a portion of a great pond to private owners prior to the taking effect of the Ordinance of 1647, which declared the public rights in great ponds, neither it nor its subsequent grantee of the remaining portion could, as owner and apart from the exercise of sovereign powers, draw off the water of the pond to the detriment of the prior grantees.

5. Although the Ordinance of 1647, declaring the public rights in great ponds, became applicable in Plymouth Colony as part of the common law, the fiction that the common law has existed immemorially does not require its application to transactions which arose prior to the Province Charter which made such law applicable therein.

6. A corporation composed of representatives of the several mills owning waterpower on a river, which has built and maintains a dam at the outlet of the reservoir, and controls the whole waterpower in the interest of the owners for their benefit, may sue to enjoin third persons from drawing water from the reservoir.

(September 3, 1891.)

APPEALS by complainants from decrees of

versed.

them, but came to a conclusion either upon the Superior Court for Bristol County disthe law or upon the facts different from that missing bills filed to enjoin defendant from which we have reached. Under such circum-drawing water from the Watuppa Ponds. Restances, it cannot be held that he was a purchaser without notice. The price which he paid was far less than the value of the land, provided the title was clear, and whatever may have been the defendant's opinion as to the validity of his title, he certainly had reason to know that it was liable to be questioned.

Decree for the plaintiff.

NOTE. This subject has received extended treatment in a note appended to Henry v. Newburyport

(Mass.) 5 L. R. A. 179. See also Watuppa Reservoir
Co. v. Fall River, 1 L. R. A. 466, 147 Mass. 556; Pro-
prietors of Mills v. Braintree Water Supply Co. 4 L.

R. A. 272, 149 Mass. 478; Fernald v. Knox Wool Co. 7
L. R. A. 459, 82 Me. 42; Atty-Gen. v. Revere Copper
Co. 9 L. R. A. 510, 152 Mass. 444.

Com. v. Roxbury, 9 Gray, 451, 492, 493; ] on the questions passed on then, because Cleaveland v. Norton, 6 Cush. 380; Treat v. apart from the questions upon which our Lord, 42 Me. 552; Martin v. Waddell, 41 U. S. opinions were divided we are agreed that the 16 Pet. 367, 10 L. ed. 997. plaintiffs now make a case calling for the interposition of this court.

the land and pond, and in that state of things | morially. But when the Ordinance of 1647 the Ordinance of 1647 came into operation, is said to be part of the common law of we might hesitate to say that the pond was Plymouth all that is meant is that, as we not within the scope of the ordinance. West said in Litchfield v. Scituate, it has been exRoxbury v. Stoddard, 7 Allen, 158, 171. But tended to that territory by usage and by the elements of the case supposed or of any judicial decision. Such an extension does equivalent to it are wanting. The original not necessitate a fiction that the law has conveyance, the Pocasset grant, is not a grant been so always, which would be as unreato or the incorporation of a town. It is a sonable as a change of private rights in the sale of land as private property to private guise of a declaratory statute. It is fiction individuals for a substantial sum of money. enough if we assume that the common law As we have said this sale embraced the water of Plymouth conformed to the ordinance from right now claimed. So far as appears, or as the date of the Province Charter, a date too we have any reason to suspect, the whole late to affect the plaintiffs in this case. An land and water rights conveyed have been illustration may be suggested from our comdealt with as private property from that day mon law as to prescription. This has conto this. There is no ground for saying that formed to the Statute of Limitations as they when the Ordinance of 1647 became law in have been altered from time to time. Melvin the Plymouth Colony or at any later moment v. Whiting, 10 Pick. 295, 297; Edson v. it found the Watuppa ponds the property of Munsell, 10 Allen, 557, 565; Coolidge v. the Colony or of a town or in a like position Learned, 8 Pick. 504. But we do not suppose for the purposes of the ordinance. We may that it would be argued that when the Statadd that the Town of Tiverton was not in ute was changed the common law was changed existence until two years after the date of for past time, retrospectively, so that, for the Province Charter which it seems is to be instance, the use of a way for twenty years taken as the date when the Ordinance of 1647 while the Statute of 1786, chap. 13, was in was extended to Plymouth. Litchfield v. force should now be held to have gained a Scituate, 136 Mass. 39, 46, 47. right, although at the time it was insufficient to do so.

There is no doubt, of course, that if the pond and the rights claimed by the plaintiffs There is no question made as to the remhad been appropriated to private persons be-edy, if the plaintiff's rights are established. fore the ordinance went into effect those rights Tudor v. Cambridge Water Works, 1 Allen, remained unaffected afterwards. Berry v. 164. Raddin, 11 Allen, 577. Again we do not understand it to be disputed that if the original Pocasset grantees got a private right to the waterpower now used by the plaintiffs, and did not lose it at the date of the Province Charter, the plaintiffs now have it. It seems to be plain that whatever mill or water rights the Pocasset grantees had at the mouth of the pond they conveyed to the plaintiff's predecessors in title. Finally, if the whole of the Watuppa ponds was the subject of private ownership or if the colony retained a part of one subject to its conveyance of the rest to the Pocasset grantees, the other owner, whether the grantees of the Freeman's purchase or the colony, in its capacity of owner and apart from the exercise of sovereign powers, could not draw off the water to the detriment of the Pocasset grantees. See Tudor v. Cambridge Water Works, 1 Allen, 164; Smith v. Moodus Water P. Co. 33 Conn. 460.

is

We regard what we have said as sufficient to establish the rights of the Troy Cotton & Woolen Manufactory. It owns the land at the outlet of the pond. This being so, probably it is not regarded as material whether an injunction shall be issued in the case of the Watuppa Company also. That is a corporation made up of the representatives of the several mills owning waterpower on Fall River, but seems not itself to be an owner of land or water rights. We gather, however, from the facts admitted that it has built and is in possession of a dam at the outlet of the pond and controls the whole waterpower in the interest of the owners for their benefit. We are disposed to think that it shows a sufficient possession under the title of the owners to warrant the issuing of an injunction in its behalf. Decree for plaintiffs.

Wilbur H. POWERS

D.

The only question which remains whether the Ordinance of 1647 modifies the conclusion to which we have come apart from it. This may be answered in a few words. In Litchfield v. Scituate, 136 Mass. 39, 46, it is said that there is no sufficient evidence that the ordinance was the law of Plymouth Colony before its union with Massachusetts under the Province Charter, and on the next page the time when the Province Charter 1. A note payable “when the United

Jerome F. MANNING.
(2 Cases.)
(....Mass.....)

States pays judgments of the Court of Commissioners of Alabama Claims in the so-called class two cases" became due when a dividend had

passed the seals is indicated as the moment when we are to take it that the ordinance became applicable to that part of the State. It is true that when it did become applicable NOTE.-Judges of Court of Commissioners of Alait became so as part of the common law and that the fiction generally applied in respect to the common law is that it is only de- Alabama Claims hold their offices while the court clared by the courts and has existed imme-continues to exist, unless they are lawfully re

bama Claims.

The judges of the Court of Commissioners of