ICE, AND PROPERTY THEREIN.

DEPARTMENT OF PROPERTY.

EDITOR-IN-CHIEF, HON. CLEMENT B. PENROSE, Assisted by ALFRED ROLLND HAIG.

BARRETT v. ROCKPORT ICE CO.'. SUPREMEJUDICIAL COURT OF MAINE.

Title to Ice-How Acquired. The lessee of a portion of the shores of a great pond, who, without scraping the snow from the ice thereon, erects stakes, with his name upon them, around nearly one-half the pond, does not thereby acquire such a right to the ice thus enclosed as will enable him to maintain trover against an ice company which, previous to the formation of the ice, had removed the lily pads from the surface of the pond, and afterward scraped off the stqow, bored holes in the ice to let off the surface water, and proceeded to harvest the ice against the written protestation of the plaintiff.. ICE, AND PROPERTY THRErw. (I) ITS NATURE.-As ice is merely eral scramble, leading to acts of frozen water, formed over the land, force and violence." Washington and so included in its indefinite Ice Co. v. Shortall, ioi Ill., 46; extent upward, it would at first S. C., 38 Am. Rep., 255, note. But, blush seem to be of the nature of on the other hand, the separate and realty; and it has accordingly been distinct nature and properties of ice, compared to alluvion, accretion or its lack of permanence, the very accession, and held to be the prop- precarious character of its connec- erty of the owner of the subjacent tion with the soil, and the fact of soil, and not open to seizure and its being so frequently severed and occupancy. State v:, Pottmeyer, made an article of extensive trade, 33 Ind., 402; S. C., 5 Am. Rep., would seem to indicate the propriety 224; Edgerton v. Huff, 26 Ind., 35; of regarding it, for some purposes, Paine 'v. Wobds, ro8"Mass.,- i6o. at least, as personalty; and it has "Ice, from its general use, has been held that a sale of ice already come to be a merchantable com- formed, whether in or out of the modity of value, and the traffic in water at the time, is a sale of per- it a quite important business. It sonalty, and not within the Statute would not be in the interest of peace of Frauds. "The ephemeral char- and good order, nor consistent with acter of ice renders it incapable of legal policy, that such an article any permanent or beneficial use as should be held a thing of common part of the soil, and it is only valu- right, and be left the subject ofgen- able when removed from its original

1 Reported in 24 AtI. Rep., 802; 84 Me., 155. Decided December 22, 1891. ICE, AND PROPERTY THIEREIN. place. Its connection-if its posi- thereon is in the owner of the un- tion in the water can be called a derlying soil, as has been stated connection-is neither organic nor above. "The just and reasonable lasting. Its removal or disappear- use of the water which belongs to ance can take nothing from the the riparian proprietor, in case of its land. It can only be used and sold being congealed into ice, would give as personalty, and its only use tends him the unlimited use and appro- to its immediate destruction. We priation of the ice as his exclusive think that it should be dealt with property: Vashington Ice Co. z'. in law according to its uses in fact, Shortall, IOI Ill, 46. His right in and that any sale of ice ready the water may be compared to that formed, as a distinct commodity, of the owner of land adjoining a should be held a sale of personalty, public road or street: Brookville whether in the water or out of the and Metamora Hydraulic Co. v. water." Higgins v. Kusterer, 41 Butler, 9r Ind., 134; S. C., 46 Am. Mich., 3 T8 ; S. C., 2N.W. Rep., 13; Rep., 581. His interest in the ice, 32 Am. Rep., i6o. But this same however, differs somewhat from result could be as easily reached by that which he has in the water. holding, on the basis of the reason- As the latter is of an unstable, ing above, that a sale of ice was a transitory nature, his rights therein sale of personalty, not because of can only exist while it is within its nature, but because of the fact the limits of his domain, and cease that such a contract, necessarily of necessity as soon as it passes be- contemplates its severance, thus yond them; and, further, by the putting it on the same footing as a operation of the old maxim, "'qua sale of standing timber. This would currit,et debet currere, ut currere be equally consonant with princi- solebat," he has only a right to the ple, and would avoid the anomaly use of it as distinguished from an of treating the subject-matter as absolute property therein. Ice, invested with two differing niatures. however, is not, at least while cold It is far better, then, to regard ice weather lasts, of a transitory na- as of the same legal, as it is in fact ture, but is reasonably fixed and of the same physical nature as permanent-quite as much so as water, and treat it as realty until the soil that forms the banks of the severed. Then, of course, it be- stream-and may, therefore, well comes personalty, and may be the be considered capable of absolute subject of larceny. Ward v. Peo., ownership. This has been doubted 6 Hill (N. Y.), 144. in one case only: Marshall v. Peters, 12 How. Pr. (N. Y.), 218, (2) WHO RNTITLED TO ITS POS- where Judge E-NIOTT held that the SESSION. owner of a mill-dam and one-half (a) In Unnavigable Waters. - of the soil underlying it had no As the title to water covering land is such absolute right to the ice over- generally in the owner of the land lying his land that his licensee that underlies it, Gardner v. New- could bring suit for an injunction burgh, 2 Johns., Ch. 162; Goddard v. to restrain another from cutting Dakin, iolMetc. (Mass.), 94; DeWitt and carrying off the ice from that Harvey, 4 Gray (Mass.), 486; so, portion of the pond. But this is also, the title to the ice that forms opposed to the weight of authority; ICE, AND PROPERTY THEREIN. and the doctrine that the ice be- leasee, provided that he does not in- longs absolutely to the owner of terfere with the right of navigation the soil beneath it is now settled or the proper use of the stream by beyond controversy. It makes no other people, may recover from the difference whether the ice be owners of a steamboat that was run formed in a pond or a running back and forth unnecessarily near stream; whether his title extends his field of ice, thereby destroying from bank to bank, t6 the thread of it: People's Ice Co. v. Steamer a stream, or to only a limited por- "Excelsior," 44 Mich., 229; S. C., tion of the area of a pond, in any 6 N. XV. Rep., 636. case his title to the ice is com- The title of the owner of the un- mensurate with his ownership of derlying soil remains the same, the underlying land, and he can whether the water upon which the prevent its removal; or, if another ice forms is in the natural bed of a removes it without license the lat- stream or is backed upon his lands ter will be guilty of a trespass: by the erection of a dam. In the State v. Pottmeyer, 33 Ind., 402; S. latter case, all that the owner of C., 15 Am. Rep., 224; Clute v. the dam or mill privilege possesses Fisher, 65 Mich,, 48; Bigelow v. is the right of flowage and the right Shaw, 65 Mich., 241; Washington to have a sufficient supply of water. Ice Co. v. Shortall, ioi Ill., 46; He can lay no claim to the ice that S. C., 38 Am. Rep., 255, note; 12 is formed upon the surface of the Am. LAw REG., 313. So, when a water so long as he is not the street of an incorporated village, owner of the soil beneath; but the situated upon the bank of a river, title to the ice vests absolutely in extends to the thread of the stream, the owner of that soil, and he can and the fee of the street is in the cut and remove it, subject only to corporation for the benefit of the the limitation that he may not, by lot-owners and the public, the so doing, interfere with the rights village authorities may properly of the owner of the dam or mill interpose to prevent an intruder privilege: Cummings v. Barrett, io from cutting and removing ice Cush. (Mass. ', 186; Dodge v. Berry, which may have formed upon the 26 Hun. (N. Y.), 246; Brookville water overlying the course of the and Metamora Hydraulic Co. v. street: Brooklyn v. Smith, 104 Ill., Butler, 91 Ind., 134; S. C., 46 Am. 429; S. C., 44 Am. Rep., 90. A Rep., 581; Julien v. Woodsmall, 82 lesser of a river front has the right Ind., 568. "The ice forming upon to have it free from obstruction in the waters of the stream where it order that he may gather ice ran through the plaintiffs premises, thereon, and may maintain an ac- without any overflow by the dam, tion against one who has erected a would belong to her by reason of boom in front of the leased prem- her proprietorship of the soil, al- ises under a parol license from the though the waters of such creek grantor of the lease: Lorman v. could not be directed by her to the Benson, 8 Mich., 18; and a lessee injury of the owners of the stream of riparian rights, having thereby below her. Upon the same prin- acquired the right to enclose and ciple the ownership of the soil be- store ice for his own use and profit, neath the overflow would endow within the limits embraced in his her with exclusive property in the ICE, AND PROPEIRTY THEREIN. ice upon such overflow:" Bigelow pond would appreciably injure v. Shaw, 65 Mich., 341. A con- the owner of the easement:"1 see trary doctrine was held in Myer v. Dodge v. Berry, 26 Hun. (N. Y.), Whitaker, 55 How. Pr. (N. Y., 246; and was successfully refuted in 376; S. C., 5 Abb. N. C. (N. Y.), Cummings v. Barrett, io Cush. 172; but there the learned Judge, (Mass.), r86, as follows: "Ice must in his reaction against the er- be cut in winter. It usually melts roneous ruling in Marshall v. in the latter part of winter, or early Peters, 12 How. Pr. (N. Y.), 218, part of spring, together with the suffered his eyes to be blinded to ice and snow of the surrounding the fact that the facts of his case country; and these, together with were different from those of the the rains which cause and promote latter, and by following out a chain them, constitute what is usually of reasoning adapted to that ar- called the spring flood, which com- rived at a result which would there monly causes a great surplus of have been correct but was wrong water in similar mill streams, not in the case before him. His de- only not available to any useful cision, however, has been uni- purpose to mills but often injuri- formly disregarded, and carries no ous. And it may well be doubted, authority. after any quantity of ice cut from A yet more curious perversion of such a pond, whether after the reasoning appeared in Mill River spring floods have subsided, and Mfg. Co. v. Smith, 34 Conn., 462, the useless surplus of water passed where the Court argued that the away, and long before the approach owner of the soil could not cut and of any 'dry season.' the water in remove the ice from a mill-dam, the pond would not be as full and because, ice being frozen water, the copious for all mill purposes as if volume of water in the dam might no ice had been so cut." This be materially lessened by so doing, weight of authority and reason may and so an injury might be done .to be considered as settling the ques- the mill owner. The fallacy of this tion; and not only has the owner was neatly exposed in Brookville of a mill-dam no right to the ice and Metamora Hydraulic Co. v. thereon unless he owns the soil Butler, sup ra, where the Court under it, but the owner of the soil said: "This seems to us a narrow overflowed may cut and dispose of view, and one not in harmony with it, so long as no manifest injury is authority or consistent with sound cahsed to the mill owner by his so principle. It may possibly be that doing. The land owner's right is so if the evidence in a particular case well settled that if the mill owner shall show a diminution of the sup- unnecessarily and maliciously draws ply of water the land owner might off the water and so spoils the ice then be prevented from taking ice; he will be liable in damages: Ste- this, however, affords no ground vens v. Kelly, 78 Me., 445; S. C., for a broad general rule; the Court 6 Atl. Rep., 868; 57 Am. Rep., 813. has as little ground for presuiing The owner may also recover if the that taking the ice would diminish ice is spoiled or damaged in any the supply of water as for presum- other way: See Finger z'. City of ing that allowing a dozen, or a half Kingston, 9 N. Y. Suppl., 175. dozen horses to drink from the (b)In .Vavigable Waters.-The ICE, AND PROPERTY THEREIN.

old English rule that the fee of the 2042. But in other States, even bed of tidal streams is in the sov- where the stream has been mean- ereign, forms a part of the common dered, the common law rule a3 to law of this country; and, of course, tidal waters is retained in all its the ice in such streams cannot be- strictness and narrowness to avoid long to the riparian proprietor by the disturbance of settled rights of virtue of his ownership of the soil. property: Clute v. Fisher, 65 Mich., In regard to non-tidal streams, 48; Chicago v. Laflin, 49 Ill., 172; however, there is a conflict of de- Chicago v. McGuin, 51 Ill., 266; cision. There are many navigable Braxon v. Bressler, 64 Il1., 488. In streams in the United States, far Illinois the title of the riparian above tide-water, over which it is proprietor is held to extend to the of the highest importance that the centre thread of even the Missis- government should retain control; sippi: Middleton v. Pritchard, 3 and, further, English non-tidal Scam., 510; Houck v. Yates, 82 streams, which are insignificant and Ill., 179; Washington Ice Co. v. usually non-navigable, ought not Shortall, IO Ill., 46. Wherever to furnish a criterion for our inland the old rule prevails the principles rivers, such as the M issouri, Ohio, stated above in regard to non-navi- Tennessee and Arkansas. Cessante gable waters apply to all but tidal ratione, cessat el ifisa lex. This is streams, and the title of the riparian in fact the doctrine approved by proprietor includes the ice. the courts of the United States: But where the riparian proprietor Barney v. Keokuk, 94 U. S., 324, has no title to the bed of the stream, and of some of the States: Wood- that being vested in the govern- man z. Pitman, 79 Me., 456; S. C:, ment, the ice that forms over it is ioAtl. Rep., 321. In Pennsylvania like a derelict, or an animal fera the question does not depend either nature, aud becomes the property upon tidal character or actual navi- of the one who first appropriates it: gability of the stream: and where Wood v. Fowler, 26 Kans., 682; land is bounded by any of the large S. C., 40 Am. Rep., 330. It is, of rivers, the title to beyond and low course, impossible to exactly de- water mark remains in the Com- fine the acts which will constitute monwealth: Carson z Blayer, 2 an appropriation sufficient to give lBinn., 475: Shrunk v. l',av. Co., 14 title, but it seems to be enough if S. & R., I; Johns v. Davidson, labor and money have been ex- 4 Hains, 522 (where the difference pended upon the preparation of the between Pennsylvania and New ice for cutting, and the intention York in that respect is referred to appropriate it be clearly shown. to). Even when a stream is It is not essential that it be actually non-navigable the meandering of cut. '"Any citizen who may law- its shores by the government fully go upon the stream may retains the title when the adja- gather ice from it under the regula- cent lands are disposed of; and tions prescribed by law. He is en- the riparian proprietors have titled to the ice he prepares by his no title to its bed and conse- labor to be removed. It is plain quently no exclusive title to the that if he cuts ice for transportation ice formed over it: Brown v. Cun- to his ice-house another cannot ningham (Iowa), 48 N. W. Rep., rob him of his labor by carrying rCE, AND PROPERTY THEREIN. away his ice; and it is plain that oughfare, while the right of the when he makes preparations to use public to so use them is recog- the ice upon a certain part of the nized, and any one who cuts holes stream, prepares its surface for cut- in the ice near a customary winter ting, erects machinery to handle way is liable to a traveler injured the ice, makes walks or ways for thereby, without fault on his part: workmen, or in any other proper French v. Camp, 18 Me., 433, yet, manner indicates the part of the in view of the importance of the stream which he occupies in his ice traffic, it is held that the right operations, which must be reason- of passage in a place like the Pen- able in extent and in all other re- obscot at Bangor, where the great spects, he has a property right to body of the ice is annually taken the occupation of such locality from the water, is relative only, during the ice season and to the and to be exercised reasonably; and ice formed there :" Brown v. Cun- that a traveler cannot recover if he ninghain (Iowa), 48 N. W. Rep., had a clear opportunity to avoid 1042. It will be seen from this the accident, even though the ice that the right of occupation is not field was left unprotected: Wood- an unlimited one, at least until man v. Pitman, 79 Me., 456; S. C., perfected by actual seizure, but ro Atl. Rep., 321. must be exercised with due regard The right of the riparian owner for others. In other words, it is to take the ice which .forms upon highly probable that the courts artificial waterways, such as canals, would refuse to sanction a claim to depends entirely upon the nature title by occupancy to the whole of of the estate taken by the State and the ice on a stream by merely pre- its grantees in the land upon which paring it for cutting; but if it were the same is constructed. If that once actually cut and housed, it is estate be a mere easement, then, difficult to see how they could im- just as in the case of flowage by pugn the title of its possessor. the erection of a dam, the ice be- One who has thus appropriated longs to the owner of the fee; but a field of ice upon a navigable if the estate taken be a fee, the river, by surveying, marking and former owner has no remaining in- staking it off, and expending teresttherein, and the ice is exclu- money to preserve it and make it sively the property of the company valuable commercially, has a suffi- that owns or leases the franchises cient possession to support an ac- of the canal: Water Works Co. of tion for trespass against one who Indianapolis v. Burkhart, 4r Ind., cuts it and carries it away with 364; Cromie v. Board of Trustees of force and threats, the only limita- Wabash and Erie Canal, 71 Ind., tion upon the right of occupancy 208. This, however, is strictly lim- being that it must not interfere with ited to the land necessarily taken the paramount right of the public for the bed and basins of the canal, to free navigation: Hickey v. and when, as an incident of its Hazard, 3 Mo. App., 480. In construction, a large pond is formed Maine, however, where the rivers upon lowlands adjoining the canal are totally closed to navigation used only for the purpose of over- during the winter, and the ice upon flow, the ice formed thereon is the them is then used as a public thor- property of the owner of the sub- ICE, AND PROPERTY THEREIN.

jacent soil, and he m'ay cut and re- 131 Mass., 474. The right being move it, subject only to the condi- common to all, however, must be tions that no injury shall be done exercised by each one reasonably, to the easement of the canal com- and must not be so used as not to pany, and that the flow of water interfere with the rights of others: shall not be materially lessened: Paine v. Woods, io8 Mass., 16o. Brookville & Metamora Hydraulic An exclusive right to cut ice from Co. v. Butler, 91 Ind., 134; S. C, such a pond cannot be established 46 Am. Rep., 58i. But, as has been by an agreement made by the shown above, this latter condition riparian proprietors defining the practically imposes no limitation respective portions of the ice which upon the right of removing the they are entitled to cut; and the gran. ice, and the title of the owner in tee of a reservation to cut the ice such a case may be considered ab- from the grantor's portion cannot solute. prevent a grantee of the land af- (c) In "Great Ponds."-This is fected by the reservation from cut- a branch of the subject peculiar to ting it, although he had notice the States of Maine and Massachu- of the reservation: Hittinger v. setts, where, by the colonial ordi- Eames, 121 Mass., 539. Nor can a nance of 1641-7, the soil of great right to cut ice against all the land ponds-that is, ponds of more than owned by the grantor and border- ten acres in extent-is held by the ing on the pond be conveyed by an State for the public, and, therefore, owner who has acquired no ex- the rights of fishing, bathing and clusive right against the public, so boating therein, and of taking ice as to bind a subsequent grantee of therefrom, are common to all who the land, and prevent him from can lawfully obtain access thereto, cutting ice thereon; for the cove- no one being able, by occupancy or nants do not run with the land: otherwise, to obtain an exclusive Gage v. Steinkraus, 131 Mass., right therein, except by grant of 222. the legislature, or by prescription, A title by occupancy to the ice which supposes a grant: Cummings on such a pond can be gained only v. Barrett, io Cush. (Mass.), 186. by actual taking; a constructive The title of the. riparian owners possession cannot be gained by only extends to low-water mark, merely scraping off the snow and and they have no greater rights in marking out the limits within the pond itself than any other per- which the occupier intends to cut, son has who can reach it without and then leaving it to thicken; and trespassing on the land of others, if another, who has the right to and it makes no difference in this fish on the pond, cuts holes for regard whether the riparian owner that purpose in the ice the former be an individual or a company has no remedy against him (unless, charterel for the express purpose perhaps, he can prove that the act of dealing in ice: West Roxbury was malicious); for he has no right, v. Stoddard, 7 Allen (Mass.), i58; to the exclusion of other public Brastow v. Rockport Ice Co., 77 uses, to the occupation of any part Me., ioo; Hittinger z Eames, 121 of the pond, for the purpose, by Mass., 539; Gage v. Steinkraus, artificial means, of increasing the 131 Mass., 222; Rowell v. Doyle, thickness of the ice: Rowell ve ICE, AND PROPERTY THEREIN.

Doyle, 131 Mass., 474. Still less I Allen (Mass.), x64; and, there- can such a title be acquired by fore, not to be defeated by a mere merely staking off the ice without constructive possession. As was scraping it, as against one who has said in People's Ice Co. v. Daven- taken pains to prepare the ice for port, 149 Mass., 322; S. C., 21 AtI. cutting: Barrett v. Itockport Ice Rep., 385, the public are tenants in Co. (the principal case), (Me.); 24 common of the various incorporeal AtI. Rep., 802; S. C., 84 Me., 155. hereditaments arising in such "The case is not like one of captur- ponds, which, nevertheless, are not ing animals fere naturev, or of strictly commons, for, if wholly taking possession of derelict prop- surrounded, only the riparian pro- erty. It is more analogous to the prietors would seem to have any case of a tenant in common at- rights therein. This being the tempting to take possession of a case, it will be readily apparent part of the common estate by that only actual possession can staking it off and thus excluding confer a paramount title as against his co-tenants:" People's Ice Co. the rights of others. 7P.Davenport, 149 Mass., 322; S. As to the exact nature of the C., 21 At. Rep., 385. right to the privileges of such There is here, as stated in the ponds, and the vesting of the fee, principal case, a serious conflict there seems to be no precise adjudi- with some of the decisions in other cation; but it would seem plausible States as to what will constitute to hold that the fee was in the State appropriation. But this conflict is or town as trustee for the inhabit- more apparent than real. It seems ants. This, however, is still an to have escaped the attention of open question. the Court that the case of these Where, as in Illinois, Card v. great ponds is wholly different McCaleb, 69 Ill., 314, a right is from that of other public waters, given by statute to all persons and, therefore, cannot justly be resident along the line of a canal compared with them. In the latter to cut and remove ice from the instance no individual has any same, its feeders, side-cuts and title until after occupancy by him, basins, free of charge, it would and all that is necessary to estab- seem very similar to that of cutting lish his title is, as in the case of ice in a "great pond," and would public lands or mining claims, as presumably be governed by the noticed in Brown v. Cunningham, same rules. supra, to notify the world at large (3) CONVEYANCE OF PROPERTY of his intention; and that is very IN ICE. effectually done by staking off the The right to cut ice may be con- part he claims. But in the case of veyed by deed or by parol license; a great pond the individual has a but in the latter case no title to the title, inchoate, it is true, and per- ice will pass unless it be executed: fected only by actual seizure; but, Balcom v. McQuestien (N. H.), 17 nevertheless, a subsisting title, one At. Rep., 638. When conveyed by strong enough to support a bill in deed, however, it is more than a equity against one who interferes mere revocable license, and the with its beneficial enjoyment: grantee has a valuable right, for an Tudor v. Cambridge Water Works, encroachment upon which the law ICE, AND PROPERTY THEREIN. will give him a remedy: Richards v. (4) DAMAGES FOR INJURING. Gauffret, 145 Mass., 486. Such a The value of the land for ice conveyance, when joined with a purposes may be considered as an conveyance of adjacent land, may element of damage when it is taken create an easement appurtenant to under the right of eminent domain: the land: Huntington v. Asher, 96 Ham v. Salem, ioo Mass., 350; N. Y., 6o4, reversing S. C., 26 Hun. Hyde Park v. Washington Ice Co., (N. Y.), 496. But the right to take 117 Ill., 233; and also as an offset to ice, as has been seen, does not pass damages claimed for flowing it: with a grant of a mill-dam or flow- Paine v. Woods, io8 Mass., i6o. age privilege: Dyer v. Curtis, 72 If ice accumulates in a pond Me., I8i. Nor can an ice company as the consequence of the erection acquire an easement in the water of a mill-dam, and water is thereby through which it tows its ice from thrown back upon an existing mill the cutting-ground to the ice-house, to its material injury, the owner of so as to prevent a grantee of the the dam becomes liable for the subjacent land from obstructing it: damnage done: Davis v. Fuller, 12 Knickerbocker Ico Co. v. State, 41 Vt., 178; Cowles v. Kidder, 24 N. Hun. (N. Y.), 458. H., 364; unless the injury was due When premises, used for hotel to the intervention of casual and purposes, upon which was situated extraordinary forces, over which a partly filled ice-house, were sold, the owner of the dam had no con- nothing being'said about the ice- trol, and which he could not reason- house during the negotiations nor ably foresee: Smith v. Agawam in the deed, nor when possession Canal Co., 2 Allen (Mass'), 355. was given to the vendee, and no NOTR. reservation was made by the vendor ice from the of .a right to enter upon the prem- Cutting natural surface of a pond. or stream and ises and use or remove the ice, the storing the same in a building is ice is to be regarded as a fixture, not a manufacture, and a company intended by the parties to be en- formed for that purpose is not a joyed with the realty, and con- manufacturing corporation: Hit- structively annexed thereto, on the ground that it is almost indispens- tinger v. Westport, 135 Mass, 258; Peo. v. Knickerbocker Ice Co., 99 able to the full use and enjoyment N. Y., 181. Contra: Att.-Gen. v. :f the premises, and it passes to the Lorman, 59 Mich., 157. vendee as a part of the freehold: Hill v. Munday (Ky.), II S. IN. R. D. S. .ep., 956.