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Show MASSACHUSETTS 389 The riparian owner may-subject to the reasonable use limita- tion-construct a dam in order to utilize his right. However, con- struction of dams, reservoirs or mills on a watercourse is subject to certain statutory regulations and controls. These statutory regula- tions are discussed in section 3.5, infra. Riparian water rights are limited to use on riparian lands which are located in the watershed of the watercourse and a riparian owner who diverts water out of the watershed for use on nonriparian lands, is liable to other riparian owners for any damages caused by the out-of-basin diversion.63 Riparian rights on navigable waters are subject to the paramount rights of the public for navigation and other public purposes, and the State has the right to do what is necessary to promote public purposes.54 Owners of land abutting the great ponds on Massachusetts do not enjoy riparian or littoral rights to use the waters that are greater than the rights of the general public unless they are granted those rights by the Legislature.55 The Massachusetts Bay Colony Ordinance of 1649, which was passed while Massachusetts was still under the control of England, provided that every "householder" had a free fishing and fowling right in any great ponds as well as tide waters.56 When Massachusetts became a State, the waters of the great ponds became property of the State and are held by the State for public purposes. Great ponds are natural ponds covering 10 or more acres of land in their natural state.57 Under the great ponds law, the public has a right to use the waters of the great ponds for fishing fowling, boating, skating, cutting ice for sale and other lawful public purposes.58 Also, the legislature can appropriate the waters of great ponds for public use (e.g., a city may be granted the right to take water from a great pond to supply its inhabitants) without compensating the littoral or riparian owners on natural streams flowing from the ponds.59 The Massachusetts Bay Colony Ordinance of 1649 also gave the public the right of free access to the ponds, but the court has said that the ordinance does not give a right to trespass on improved lands,60 and the State has implemented a program for acquiring the land necessary to provide public access to the great ponds.61 3.3 Changes, Sales, and Transfers The sale and transfer of riparian water rights is usually accom- plished by the sale or transfer of title to the riparian lands and, if a water right is not mentioned in the instrument of transfer, the water right passes as an incident of the ownership of the riparian m Stratton v. Mt. Hermon Boys' School, 216 Mass. 83,103 N.E. 87 (1913). MHome for Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124 (1909). 56 Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548, 18 N.E. 465 (1888) ; People's Ice Go. v. Davenport, 149 Mass. 322, 21 N.E. 385 (1889). M Watuppa Reservoir Co. V. City of Fall River, 147 Mass. 548,18 N.E. 465 (1888). 67 Ch. 91, sec. 35. 68 People's Ice Oo. v. Davenport, 149 Mass. 322, 21 N.E. 385 (1889). 69 Watuppa Reservoir Oo. v. City of Fall River, 147 Mass. 548, 18 N.E. 465 (1888). 60 Slater v. Gunn, 170 Mass. 49 N.E. 1017 (1898). 91 Ch. 91, sees. 17 and 17A. |
