§ 203. Same-Lakes and ponds.- The proprietors of lands upon a natural fresh-water lake or pond, which is public by reason of its size, and the waters of which rise and fall at different seasons of the year, hold to ordinary low-water mark, and grants bounded by such waters extend to that line,' the word "bank" or "shore," employed in such grants, denoting the margin, and making the water's edge the boundary. The great lakes of the North appear to be less subject than streams and smaller lakes to an appreciable rise and fall of the water produced by a wet or dry season or by spring freshets. In the case of Seaman v. Smith,' in Illinois, it was held that the boundary of land described in a deed which called for Lake Michigan as a line was the line of the water as it usually stands when unaffected by storms or other disturbing causes. So patents by the general government, of public lands bounding on navi tion than a private agreement (ante, § 31); and may pass the title to the land under water to the State; but its grantees of the same lands do not, by virtue of their grant, acquire title to the bed of the lake, although it may be estopped, by its conduct, to set up its title to such parts of the bed as have been reclaimed and platted into lots. Indiana v. Milk, 11 Biss. 197. 1 Canal Com'rs v. People, 5 Wend. 423, 446; Wheeler v. Spinola, 54 N. Y. 377; Champlain R. Co. v. Valentine, 19 Barb. 484; People v. Jones, 112 N. Y. 597; Gouverneur v. National Ice Co., 134 N. Y. 355; 11 N. Y. S. 87; Fletcher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 316, 323: Austin v. Rutland R. Co., 45 Vt. 215; Mariner v. Schulte, 13 Wis. 692; Slauson v. Goodrich Transp. Co., 94 Wis. 642; Wood v. Kelly, 30 Maine, 47, 55; Waterman v. Johnson, 13 Pick. 261, 265, explained in Paine v. Woods, 108 Mass. 160, 170; West Roxbury v. Stoddard, 7 Allen, 158, 167: Fay v. Salem Aqueduct Co., 111 Mass. 27, 28; Mill River Woollen Manuf. Co. v. Smith, 33 Conn. 463; Gibson v. Kelly, 15 Mont. 417; Ladd v. Osborne, 79 Iowa, 93; Moore v. Brownfield, 7 Wash. 23; ante, §§ 82, 83, 85. 2 Ibid.; Axline v. Shaw, 35 Fla. 305; Burke v. Miles, 2 Hannay (N. B.), 166; Niles v. Burke, 1 Pugsley (N. B.), 237. 3 See Seaman v. Smith, 24 III. 521, 523. In Rice v. Ruddiman, 10 Mich. 125, 138, Christiancy, J., said: "The rise and fall of Lake Michigan, and other great lakes of the same chain, is not a tide occurring at regular intervals, like that of the ocean, nor does it arise from the same cause. And though it is probable their waters may be slightly affected by lunar attraction, and a very minute tide may perhaps be detected by a long and careful course of observation with accurate instruments, yet the court must judicially notice that it must be too slight to be recognized by ordinary observation, and to serve any practical purpose in determining the extent of riparian ownership. These facts were judicially noticed in Lorman v. Benson, 8 Mich. 18." 424 Ill. 521. See, also, Delaphine v. Chicago Ry. Co., 42 Wis. 214, 225; Sloan v. Biemiller, 34 Ohio St. 492; Lincoln v. Davis, 53 Mich. 375. gable lakes, are not limited by the meander lines, but the purchasers take such lands to low-water mark. If an artificial pond, like a mill-pond, is created by expanding a flowing stream by a dam, the title of the riparian owner extends prima facie to the centre of the pond as it did previously in the case of the stream, unless the pond has been so long kept up as to become permanent and to have acquired another well-defined boundary. And if what was originally a natural 1 Hardin v. Jordan, 140 U. S. 371; 16 Fed. Rep. 823, and note; Packer v. Bird, 137 U. S. 366; 32 Cent. L. J. 291-9, and note; see ante, §§ 76-85; Tolleston Club v. State, 141 Ind. 197; Kirkpatrick v. Yates Ice Co., 45 Mo. App. 335. 2 Phinney v. Watts, 9 Gray, 269; Paine v. Woods, 108 Mass. 160, 170; Waterman v. Johnson, 13 Pick. 261; Wheeler v. Spinola, 54 N. Y. 377; Robinson v. White, 42 Maine, 209; Hathorn v. Stinson, 10 id. 224, 238; 12 id. 183; Bradley v. Rice, 13 id. 198, 201; Wood v. Kelley, 30 id. 47; Lowell v. Robinson, 16 id. 357, 361; Mansur v. Blake, 62 id. 38; Primm v. Walker, 38 Mo. 94, 98. In Paine v. Woods, 108 Mass. 160, 170, Gray, J., states and interprets the earlier Massachusetts case of Waterman v. Johnson, 13 Pick. 261, as follows: "Waterman v. Johnson, 13 Pick. 261, was the case of a complaint under the mill act for flowing land described in the deed under which the complainant claimed title as bounded by 'Jones River Pond,' a large natural pond, which before the date of the deed had at times been raised to a certain line by means of a dam of permanent materials, adapted in its ordinary use to raise the water to that line. The judge at the trial ruled that the high-water mark of the pond as thus extended would prima facie be considered as the boundary of the complainant's land; but admitted parol evidence to show, and the jury found, that at the time of the conveyance a certain natural bank or barrier, which was not thus overflowed, and which the natural pond had never overflowed, was intended and agreed upon by the parties as the marginal line of the pond referred to in the deed. The full court, in the judgment delivered by Chief Justice Shaw, after stating the general rules of law, that, when the description of a boundary in a deed had a definite legal meaning, parol evidence was inadmissible to control it; that, by legal operation, a boundary by the sea or salt water gave a title in the soil to low-water mark; a boundary upon a river not navigable, to the thread of the stream; upon a large natural pond, having a definite low-water line, to that line; and upon an artificial pond raised by a dam swelling a stream over its banks, to the thread of the stream, unless the pond had been so long kept up as to have become permanent and to have acquired another well-defined boundary,-expressed an opinion that under the peculiar circumstances of the case, the parol evidence was rightly admitted, and held that there was no ground in point of law, or upon the evidence in the case, upon which the respondents could claim that the grant did not extend, in the direction of the pond, as far as the barrier. Upon that case, it is to be observed: first, the ruling at the trial, that the boundary was prima facie to be considered as the high-water mark of the pond, as artificially raised, was 3 pond has been for a long time enlarged by artificial means or diminished by the deepening of its outlet, grants of land bounded by the pond extend to the margin of the water as it stands at the time of the conveyance. If the margin varies at different seasons of the year, the grant includes the land which is uncovered at low-water; 2 and if the pond is artificially raised only in winter, and retains its natural level in summer, the lowwater mark in summer is the boundary, though the deed may have been executed in the winter. If land is described as bounded "along the high-water mark of the pond," the boundary is fixed and does not follow the changes in the high-water mark. A change in the water of a lake or pond from fresh to salt, caused by cutting a channel between it and an arm of the sea, and making it subject to the daily rise and fall of the tide, does not affect the boundaries of the riparian owners, who continue to hold to the former low-water mark, notwithstanding the rule which makes the high-water mark the boundary of lands upon tide waters.5 It should also be observed in this connection that no title is inconsistent with the opinion of the full court; second, the only point necessarily involved in the decision was, that the grant was not extended too far by carrying its effect to the natural barrier; third, that decision was equally sustained, whether the parol evidence was admitted, or the terms of the grant by their own force extended so far; fourth, the admis sion of the parol evidence was based upon the theory that the boundary on the pond, as applied to the subject matter, was governed by no settled rule of legal construction, but created a latent ambiguity; and the rules for the construction of similar grants were not then as fully established in this Commonwealth as they have since been by the later decisions already referred to. For instance, in Tyler v. Hammond, 11 Pick. 193, in the previous year, the court had held that a boundary by a highway generally extended only to the margin of the way-a doctrine wholly re acquired to the bed of a public pudiated by the modern decisions. Newhall v. Ireson, 8 Cush. 595; Phillips v. Bowers, 7 Gray, 21; Boston v. Richardson, 13 Allen, 146; Stark v. Coffin, 105 Mass. 328." 1 Bradley v. Rice, 13 Maine, 198; Wood v. Kelley, 30 id. 47, 55; Robinson v. White, 42 id. 209; Nelson v. Butterfield, 21 id. 220, 229. See the last case upon the question when an arm of a pond is inclosed within the lines of land conveyed, so as to be included in the grant. A lease for 500 years of a factory lot and dam lot, "together with all the land which may be flowed by raising said dam" to a certain height, conveys all the land under the pond, and passes the pond of water and the fish therein, as incidents of the principal grant. Smith v. Miller, 5 Mason, 191. 2 Wood v. Kelley, 30 Maine, 47; Stevens v. King, 76 id. 197. 3 Paine v. Woods, 108 Mass. 160. or a private lake, by the existence of an easement of maintaining a dam for twenty years at its outlet, and flooding back the water over the bed of the lake and the adjacent lands.1 Such overflowing does not constitute an ouster.? 1 Perrine v. Bergen, 2 Green (N. J.), 355; Cocheco Co. v. Strafford, 51 N. H. 455, 461; Green v. Harman, 4 Dev. (N. C.) 158; Everett v. Dockery, 7 Jones (N. C.), 390. The person who has maintained a dam at the outlet of a lake or pond for twenty years, and thereby held back the water, is not liable to be taxed for the bed of the lake, or for the lands so flowed on its borders. Cocheco Manuf. Co. v. Strafford, 51 N. H. 455; Mason v. Calumet Canal Co., 150 Ind. 699; Bernhardt v. Brown, 122 N. C. 587. But this rule "may require qualification as applied to tide-mills." Eastern Railroad v. Allen, 135 Mass. 13. As to the taxation of canal-beds, see Lowell v. County Com'rs, 152 Mass. 372; and of sawed logs, see Farmingdale v. Berlin Mills Co. (Me.), 45 Atl. Rep. 39. A water power is not appurtenant to the dam so as to be taxed therewith. Union W. P. Co. v. Auburn, 90 Maine, 60; but see 11 Harv. L Rev. 191. 2 Ibid. See Charlotte v. Pembroke Iron Works, 82 Maine, 391. 1 PART II. PRIVATE WATERS. CHAPTER VI. RIGHTS OF RIPARIAN PROPRIETORS IN THE NATURAL FLOW AND CONDITION OF THE STREAM. SECTION. 204. Rights of riparian proprietors to the flow of the water. 205. Ordinary and extraordinary use. 206-209. The right of each proprietor limited. 210. Evidence and effect of judgments. 211-2116. Measure of damages for flowage. 211c. Flowing caused by combination of natural and artificial causes. 212. Flowing when a public nuisance. 223. Remedies for pollution. 224. Rights of non-riparian proprietors. 225. Right of adjoining land-owners in artificial watercourses. § 204. Riparian owners-Rights in the natural flow of the stream. Riparian proprietors upon both navigable and unnavigable streams are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration. Each proprietor 1 Shury v. Piggot, 3 Bulst. 339; Poph. 166; Brown v. Best, 1 Wilson, 174; Palmer v. Heblethwaite, Skinner, 65, 175; Rutland v. Bowler, Palmer, 290; Miner v. Gilmour, 12 Moo. P. C. 156; Wright v. Howard, 1 Sim. & Stu. 190; Dickinson v. Grand Junction Canal Co., 7 Exch. 282; Rex v. Trafford, 1 B. & Ad. 259; Saunders v. Newman, 1 B. & Ald. 258; Wood v. Waud, 3 Exch. 748; Embrey v. Owen, 6 Exch. 353; Sampson v. Hoddinott, 1 C. B. N. s. 590; Lyon v. Fishmongers' Co., 1 App. |