Prior to 1641, the Massachusetts Bay Colony did not have any published legal code and when legal disputes arose, the local judges made their decisions based on their individual understanding of the principles of English common law and the biblical principles that were the foundation of the dominant Puritan society, as supplemented or modified by individual enactments of the colonial legislature.
By the late 1630s and early 1640s, the lack of uniformity in the administration of justice led to the need for a more uniform legal code setting out the rights and responsibilities of the citizenry. That need led to the promulgation and publication of what became known as the Laws and Liberties of Massachusetts. The Laws and Liberties were initially drafted in 1641, and were revised over a period of years and published in a more or less final edition in 1647. The Laws and Liberties covered a wide range of civil and criminal activity and again incorporated many of the concepts of civil and criminal justice established for ancient Israel in the Old Testament, and much of it would be considered barbaric by modern standards. For example, the penalty for burglary on Sunday included the severing of one's ear and unrepentant Baptists were banished. Although it is a fascinating window into early Puritan society, it also has continuing historic significance as one of the earliest documents to recognize what would today be considered "constitutional rights." As indicated by its title, the document recognized certain rights or liberties that were inherent in the citizenry.
Among the fundamental rights recognized in the 1641 draft of the Laws and Liberties and continued in the 1647 edition was the concept of a "great pond." The concept of the great pond did not exist in English common law so the origin is somewhat uncertain. Great ponds include any pond or lake that is at least ten (10) acres in size in its natural state. The Laws and Liberties provided that "every inhabitant who is an householder shall have free fishing and fowling in any great ponds,…provided that no town shall appropriate to any particular person or persons any great pond containing more than ten (10) acres of land." Although the Laws and Liberties as published only reference fishing and fowling in great ponds, the courts have recognize that the public rights in great ponds now include boating, bathing, skating and cutting ice.
As one might expect, most of the litigation relating to great ponds concerned economic rights. In the early days, many of the disputes concerned cutting and harvesting ice, and the courts established that the business of cutting and harvesting ice was basically a free for all. As with owners of property fronting on the seashore, owners of property fronting on great ponds only owned to the historic low water mark. The land, water and ice below the historic low water mark were owned by the public and therefore, anyone with access to the pond had a right to cut and harvest ice from any part of the pond. The waterfront property had no more right to the ice below the low water mark than any other member of the public. Even clearing snow off of the ice did not give the individual clearing the snow any particular right to the ice under the snow and could not prevent another person from removing the freshly cleared ice or cutting a hole for the purpose of fishing. One can imagine the chaos that ensued.
The second source of litigation involved the development of water power for the industrial revolution that swept through the region in the 19th century. Many mill owners were granted franchises to construct dams to raise the water level and capacity of historic great ponds in order to power the mills that were established near the outlets of ponds. Although mill owners were granted rights to control the water level of great ponds, they were not permitted to reduce the level of the water below the historic elevation of the great pond and could only draw off water which had been impounded by the newly constructed dams. Like many great ponds in New England, Webster Lake was also enlarged with the construction of a dam at its outlet on the northern end of the lake.
Although the rights of the public to boat on great ponds has long been recognized, the nature and extent of that right has not been explored to any great extent. With the decline of the ice harvesting business and the use of water power as a source of energy, the focus of disputes concerning the use of great ponds has changed. During the early part of the 20th century recreational uses of many ponds became the predominant focus of attention. On many smaller ponds, recreational uses included seasonal cottages and small manually powered water craft. However, on larger water bodies such as Webster Lake, the recreational use had a more commercial component which included large waterfront recreation areas designed to serve day trippers, who had access to the lake by means of public transportation. Since few individuals owned automobiles and even fewer owned personal watercraft, commercial steamboats and ferries provided much of the public with their only opportunity for a boating experience. In subsequent years, the character of the Lake changed again with the decline in the availability of public transportation, the widespread ownership of automobiles and personal watercraft, and the closing of many of the recreational parks.
Recently, further change has resulted in many of the seasonal cottages being converted into year-round houses with permanent residents. As the use of lakefront property has gradually transitioned from seasonal cottages to year-round homes, a more proprietary attitude toward the use of the Lake developed. Based on the rights established by the Laws and Liberties, public policy in Massachusetts has long supported making the use of great ponds available to the public by the construction of boat ramps and beaches, but year-round residents have a natural tendency to favor restrictions on the use of the lake by non-residents. Sometimes attempts to restrict public access to great ponds by waterfront property owners is based on real public safety or nuisance concerns such as attempts to limit the use of jet skis or high speed power boats. In other cases, opposition to expanded public use of great ponds is motivated by a more generalized fear of change.
Webster is currently in the midst of one such battle with recent town meeting petitions proposing to restrict public access to Webster's great pond by limiting the size of boats on Webster Lake. As with all such disputes, the boat size issue has two sides. The lakefront property owners may see the proposed restrictions on the size of boats as a means of ensuring safety and tranquility as well as protecting property values. On the other hand, advocates of individual rights and economic justice may see it as a thinly veiled attempt by lakefront property owners to "appropriate" the great pond to their own use, in contravention of the historic liberty.
- Sunday, 27 November 2011
- Posted in Categories: : The Law and You