"The plaintiff further avers that it was the duty of the defendant in presenting the names of parties from which the plaintiff was to select a referee, to present men disinterested, and lect a disinterested third referee; but the plainit was also the duty of the two referees to setiff avers that the defendant, forgetful of its legal duty, did not present the names of disinterested men, as required by the policy and by the law, but did present names of parties filled with bias and partisanship, in favor of the defendant, and that said John B. Kehoe, presented by the defendant and innocently sepetent, biased, prejudiced, and unfair in his actions, and that said Lehan, selected on said Kehoe's recommendation, was also biased, and full of partisanship, in favor of the defendant, and both were unfair, biased, and unjust in their actions and interest between the parties, so that at a hearing held by said referees on the 30th day of July, 1918, to honestly adjust said losses, said John B. Kehoe and J. Harold Lehan closed the hearing peremptorily, without notice to the plaintiff, after having made arrangements with the plaintiff and their associate referee to continue the hearing to the next day."

absolutely fair, honest, disinterested tribunal to sustain it. It is difficult, indeed, to prove negatively that the "men offered," for choice of referees, are men "not interested," but the interpretation of the insurance law upon this phase of the case points out the method by which this requirement may be tested, and opens a wide avenue to the field of inquiry that may be pursued to prove affirmatively that the men offered are interested. Young v. Insurance Co., 101 Me. 294 [64 Atl. 584] points the way. It is held in this case that each party's freedom of choice of reflected by the plaintiff, was absolutely incomerees' is materially abridged; that the plaintiff is obliged to make the stipulation for referees or go without insurance; that "the spirit of the statute requires that the three referees shall be as free from pecuniary interest and relationship as judges and juries are required to be, and also be as free from bias, prejudice, sympathy, and partisanship as judges and jurors are presumed to be. If there is no other restriction as to the men to be nominated for the other party to choose from, or as to the third man, however appointed, than that they shall not be relatives and have no pecuniary interest, then either party may have forced upon him as referee at least one violent partisan of the other party, or at least men incompetent, opinionated, or biased. The purpose of the statute might thus be wholly defeated and made to work an injustice."

that the plaintiff and his clerk also testified as to the goods, stock, and fixtures in the store and repair shop at the time of the fire; that he offered to produce other evidence as to values, but that he was not asked nor permitted to produce any further evidence; that the defendant offered no evidence openly or in hearing of the plaintiff or of his counsel at any time; that the referees continued the

The declaration then proceeds to set out in detail the acts of the two referees complained of, which are averred as tending to show their incompetency, their bias, their prejudice, and their unfairness. Among other things, it is averred that the plaintiff submitted an inventory, check book, bank book, and other documentary evidence tending to [3, 4] We have quoted at length from this prove his loss; that he also introduced a opinion, in order to make clear the infer-witness to testify as to the value of the propences to be drawn therefrom as to the na-erty in the plaintiff's store and repair shop; ture of the evidence admissible, to prove any or all of the various faults there enumerated, which operate as a disqualification of a referee. It is evident, as a deduction, that this evidence cannot be limited to what may take place in the selection of the referees. It could not be anticipated, for instance, that a man offered would be a "violent partisan" or "incompetent"; and consequently his fault could be shown only by evidence of his con-hearing at 5:30 p. m. to the next day; that duct, while acting as a chosen referee. It would at least be difficult to prove, in any other way, that a referee was "opinionated" or "biased." Therefore evidence of the conduct of the referees, from the time they are proposed, until they have completed their award, including what they say and do, which tends to prove any one of the disqualifications enumerated in the foregoing quotations from the Young Case, is competent, and if sufficient to prove "violent partisanship," "incompetency," or that they are not as free from "bias, prejudice, sympathy, and partisanship as judges and jurors are presumed to be," vitiates the award.

[5] The plaintiff's declaration contains the following averments with regard to the conduct of two of the referees, one of whom was chosen by the defendant, namely:

they did not hold any further hearing; that the two referees named, on the next day, without notice to the plaintiff, informed their associate referee that the hearing was closed; that they gave the plaintiff's counsel no opportunity to put in further evidence or to even argue the case as then put in; that the next day, while the matter was under discussion, the two referees, against the protest of referee Hunt, refused to consider the inventory or any of the evidence introduced by the plaintiff; that against the protests of referee Hunt they declared that the only evidence admissible of proof of value was duplicate bills of goods purchased by the plaintiff, shippers' receipts and receipts for freight bills paid on all goods from all purchases, in order to show that the goods went into the store; that the referees named told referee

(106 A)

GREAT PONDS-LEGISLATIVE AUTHORITY.

Hunt that he did not understand the Jews, | 4. WATERS AND WATER COURSES 113and that the Jews were all tricky; that referee Hunt refused to sign or act in any such arbitrary manner; and that consequently the award of said referees is void.

The great ponds could not, under Colonial Ordinance 1641-47, be conveyed by a town without legislative authority, nor can they now. Under the justly stringent rules laid down 5. WATERS AND WATER COURSES 113 in the Young Case regarding the selection, GREAT PONDS-LITTORAL PROPRIETORS. qualification, and conduct of referees, we are Every individual or corporation owning land of the opinion that the above declaration sets bordering upon a great pond owns to the natout a cause of action, as a matter of plead-ural low-water mark, and has at all times right ing, without alleging scienter on the part of

the defendant.

The statute contemplates a fair and honest hearing, and not one unfair and dishonest, because not known to be unfair and dishonest by either of the parties. As the bias, prejudice, or sympathy of a jury is inferred from their deliberations in the jury room, translated into a verdict, so may the partisanship, incompetency, bias, prejudice, or sympathy of the referees in an insurance case be inferred from their conduct and award.

[6] Under the rule in the Fisher Case that, if "the arbitration failed by reason of the defendant's fault," the other party "is not bound to enter into a new arbitration agreement," the entry must be: Exceptions overruled.

In re OPINIONS OF THE JUSTICES.

of access to pond for any of the purposes for which he may use the waters, such as bathing, boating, fishing, fowling, and agricultural and domestic uses.

6. WATERS AND WATER COURSES 113. GREAT PONDS-LITTORAL PROPRIETORS.

No person or corporation, without legislative authority, either general, through the Mill Act, or special through a private act, may draw down the waters of a great pond below natural low-water mark, nor raise and hold them above their natural level.

7. EMINENT DOMAIN 84-GREAT PONDS→ RIGHT OF LITTORAL PROPRIETORS.

The owner of land bordering upon a great pond is entitled to full enjoyment of his propof that full enjoyment, except it be taken from erty in its natural state, and cannot be deprived him for public uses under the exercise of the right of eminent domain, with the accompanying payment of just compensation.

8. WATERS And Water COURSES 89-NONTIDAL STREAMS - RIPARIAN PROPRIETORS TITLE TO BED.

Where land borders upon a nontidal stream, although it may be floatable for logs, each of the riparian proprietors owns the fee in the

(Supreme Judicial Court of Maine. June 6, land which constitutes the bed of the stream

1919.)

1. WATERS AND WATER COURSES 113GREAT PONDS-COMMON-LAW DOCTRINE.

It must be accepted as the common-law doctrine in Maine that the state holds the ponds designated by Colonial Ordinance 1641-47 as "great ponds" in trust for the use of the people of the state, together with right to control and regulate the waters thereof; the state's title in the great ponds being the same in its origin as in tidal waters.

2. WATERS AND WATER COURSES 113 GREAT PONDS-GRANTING RIGHTS TO PRIVATE INDIVIDUALS.

Since the people as beneficiaries possess public rights in the great ponds, the Legislature, which represents the people, has the power to abridge these rights, and to grant them, or any portion of them, to private individuals or corporations, if it sees fit to do so.

3. WATERS AND WATER COURSES

to the thread of the stream.

9. WATERS AND WATER COURSES 293NONTIDAL STREAMS-RIPARIAN PROPRIETORS -TITLE TO ICE.

The riparian owner on a nontidal stream owns the ice which forms in winter, with the single qualification that it is not to be taken in such. quantities as to appreciably diminish the head of water at the dam below. 10. FISH

5(1)—NONTIDAL STREAMS-RIGHT

OF RIPARIAN OWNERS.

The riparian owner on a nontidal stream has the right to take fish from water over his own land, to the exclusion of the public. 11. WATERS AND WATER COURSES 40NONTIDAL STREAM-RIGHTS OF RIPARIAN OWNER.

The riparian owner on a nontidal stream does not own the water, but he has the right to the natural flow of the stream, and the right to the use and benefit of it as it passes through his land, for all the domestic and agricultural 51-purposes to which it can be reasonably applied, and no proprietor can unreasonably divert, obstruct, or pollute it.

FLOW OF STREAMS-RIGHT OF MILLOWNER.

The millowner on an outlet stream of the great ponds is entitled to the use of the natural flow of the stream without payment of compensation therefor, although in some cases full enjoyment may be secondary to domestic needs of the municipality or other public uses.

12. WATERS AND WATER COURSES 40NONTIDAL STREAM - RIGHTS OF RIPARIAN OWNER.

The only limitation upon the absolute rights of riparian proprietor in nontidal rivers and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
106 A.-55

Though state's erection of storage reservoirs for conserving the waters of the great ponds and regulating the flow, for the purpose of increasing the navigability of outlet rivers and streams, would result in increased power available for the use of water power owners, a tax for enhanced value of dam site would be in violation of Const. art. 9, § 8, and article 36, as to taxes being apportioned equally according to the just value thereof.

26. TAXATION 159-WATER POWER COMPANIES-FRANCHISE TAX.

Where the Legislature has granted a private corporation the right to erect a dam to control

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(106 A.)

27. TAXATION 159-WATER POWER COMPANIES-FRANCHISE TAX.

Where the Legislature has granted a private corporation the right to erect a dam to control and also to raise the natural level of water of a public lake or great pond, in order to impound additional waters to be used for purposes of such corporation, it may subsequently impose a franchise tax, but not a property tax, upon such corporation, based upon increased amount and use of water from said lake or pond which the corporation enjoys by reason of having erected such dam.

the water of a public lake or great pond, with- [ be accepted as the common-law doctrine in out raising the natural high-water level there- Maine that the state holds these ponds in of, it may subsequently impose a franchise tax, trust for the use of the people of the state, but not a property tax, upon such corporation, together with the right to control and regubased upon increased amount and use of water late the waters thereof. Barrows v. McDerfrom said lake or pond, which the corporation enjoys by reason of having erected such dam. mott, 73 Me. 441; Brastow v. Rockport Ice Co., 77 Me. 100; Fernald v. Knox Woolen Co., 82 Me. 56, 19 Atl. 93, 7 L. R. A. 459; Auburn v. Water Power Co., 90 Me. 584, 38 Atl. 561, 38 L. R. A. 188; Conant v. Jordan, 107 Me. 227, 77 Atl. 938, 31 L. R. A. (N. S.) 434. The right of the individual to fish and fowl in these waters, provided he can do so without committing trespass upon the cultivated land of littoral proprietor (Barrows v. McDermott, supra), the right of boating, bathing, cutting ice (Barrett v. Rockport Ice Co., 84 Me. 155, 24 Atl. 802, 16 L. R. A. 774), and the supplying of water to a municipality for domestic uses, have all been recognized as among the public purposes which are within the regulation and control of the state. The state's title in great ponds is the same in its origin as in tidal waters. The state holds, and can control, the use of both for public purposes, and it is perhaps for the better protection of these rights in great ponds that the private ownership of littoral proprietors has been confined to low-water mark, and

28. PUBLIC LANDS 153

PEAL.

STATUTES-RE

Pub. Laws 1824, c. 280, § 5 (part of act entitled "An act to promote the sale and settlement of public lands"), as to reservation of a tract of land, not exceeding 200 acres, together with the best mill site in any such township, has been repealed (Pub. Laws 1828, c. 393).

Spear, J., dissenting in part.

the title to the land below that line-that is, to the bed of the great ponds-has been declared to be in the state. It is in this qualified sense that the people are said to own the great ponds within our borders.

[2, 3] Moreover, since the people as beneficiaries possess these public rights, the Legislature, which represents the people, has the power to abridge these rights and to grant them, or any portion of them, to private individuals or corporations, if it sees fit so to do. Thus the Legislature of Massachusetts in 1869 (Pub. Acts 1869, c. 384; Pub. St. Mass. c. 91, §§ 10, 11) gave to the littoral proprietors the exclusive right of fishery in ponds of less than 20 acres in extent, thereby surrendering the right of fishery which all the public had previously enjoyed in ponds of between 10 and 20 acres in extent, and the Massachusetts court subsequently recognized the validity of the act. CommonIwealth v. Vincent, 108 Mass. 441; Common

Throughout the questions the phrase "pub-wealth v. Tiffany, 119 Mass. 300; Commonlic lakes or great ponds" is used; but we have no public lakes in this state, as distinct from great ponds, and we must therefore consider the questions as having reference to so-called "great ponds," using that term in its legal and technical sense.

wealth v. Perley, 130 Mass. 469. So the Legislatures of this state and of Massachusetts have granted to private and to municipal corporations the right to take water from a great pond for a public water supply. Auburn v. Union Water Power Co., 90 Me. 576, [1] Under the peculiar, but settled, law 38 Atl. 561, 38 L. R. A. 188; American Woolof Maine and Massachusetts, originating in en Co. v. Kennebec Water District, 102 the Colonial Ordinance of 1641-47, ponds of Me. 153, 66 Atl. 316; Watuppa Reservior Co. more than 10 acres in extent are designated v. Fall River, 147 Mass. 548, 18 N. E. 465, as great ponds. Whatever doubt might other-1 L. R. A. 466. In like manner our Legislawise arise from a critical study of the sub-ture has often granted to private corporaject as a matter of legal history, it must now tions the right to raise, store, maintain, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

If

control the waters of great ponds for manu- and the cultivated lands around the pond are facturing purposes; the corporations pay- protected against the passage of any person ing damages for all flowage caused thereby who would gain access thereto for the exupon the land of littoral proprietors. By vir- ércise of these public rights. Ordinance of tue of these grants many of these corpora- 1641-47; Barrows v. McDermott, 73 Me. tions have made large expenditures in the 441. No person or corporation, without Legconstruction of dams, in the erection of in-islative authority, either general through the dustrial plants, and in the acquisition of Mill Act, or special through a private act, flowage rights, which flowage rights have may draw down the waters of a great pond become part and parcel of their vested prop- | below natural low-water mark, nor raise and erty rights. While the state may hold the hold them above their natural level. waters of great ponds in trust for the people, drawn below the natural low-water mark, and may regulate them as it sees fit, while a strip of land belonging to the state would the littoral proprietors may use them for separate the littoral proprietor's lot from their private purposes as hereinafter stated, the water of the pond and cut off his acwhile the Legislature may grant their use cess thereto; and if raised above the natural to water power companies to be controlled level, a portion of the land adjacent to the for manufacturing and industrial purposes, low-water mark would be either continuously or to municipalities for domestic and other or at times covered with water, when in the uses regardless of damages to millowners natural state it would be available for his on the outlet streams (American Woolen Co. own use. He is entitled to the full enjoyv. Kennebec Water District, 102 Me. 153, 66 ment of his property in its natural state. Atl. 316), yet it has never been suggested that Stevens v. King, 76 Me. 197, 49 Am. Rep. 609; the state had the right to compel either the Fernald v. Knox Woolen Co., 82 Me. 48, 19 littoral proprietor to pay for the uses to Atl. 93, 7 L. R. A. 459. He cannot be dewhich he may lawfully put the waters of prived of that full enjoyment, except it be such pond by reason of his having access to taken from him for public uses under the exits shore, as distinguished from that of the ercise of the right of eminent domain, with general public, nor that the millowner on the accompanying payment of just compensathe outlet stream could be compelled to pay tion. for the use of the waters that constitute the natural flow of the stream. We think such millowner is entitled to that use with

out paying compensation therefor, although in some cases its full enjoyment may be secondary to that of the domestic needs of a municipality or other public uses.

[4] There seems to be some misapprehension as to these so-called public rights in great ponds. They are often spoken of as if they were sacred and inalienable. Not so. Under the original ordinance they could not be conveyed by a town without legislative authority; nor can they now. Attorney General v. Revere Copper Co., 152 Mass. 444, 25 N. E. 605, 9 L. R. A. 510. That is the only limitation upon their transfer. They can be granted and conveyed, as they often have been, by the Legislature, which represents the people. What is owned by the people may be transferred by the Legislature, unless prohibited by the Constitution, and no such constitutional inhibition barricades the way here. So much for public rights in great ponds.

Littoral Proprietors.

[5-7] Every individual or corporation owning land bordering upon a great pond owns to the natural low-water mark of the pond. Wood v. Kelley, 30 Me. 47; Paine v. Woods, 108 Mass. 160; Fay v. Salem & Danvers Aqueduct Co., 111 Mass. 28. Such owner has at all times a right of access to the pond for any of the purposes for which he may use the waters, such as bathing, boating, fish ing, fowling, agricultural and domestic uses,

Riparian Proprietors.

[8-11] The legal rights of the riparian proprietor along the rivers and streams flowing from great ponds are equally well settled. Where lands border upon a nontidal stream, although it may be floatable for logs or boats, each of the riparian proprietors owns the fee in the land which constitutes the bed of the stream to the thread of the stream, "ad medium filum aquæ," as it was anciently expressed, and if the same person owns on both sides he owns the entire bed, unless, of course, it is excluded by the express terms of the grant itself. He owns the ice which forms in winter (Wilson v. Harrisburg, 107 Me. 207, 77 Atl. 787), “with the single qualification that it is not to be taken in such quantities as to appreciably diminish the head of water at the dam below" (Stevens v. Kelley, 78 Me. 445, 451, 6 Atl. 868, 57 Am. Rep. 813). The Legislature cannot empower a municipality to take the ice, even for domestic purposes, without paying just compensation therefor. Auburn Ice Co. v. Lewiston, 109 Me. 489, 84 Atl. 1004. The riparian proprietor has the right to take fish from the water over his own land, to the exclusion of the public. Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 333. He does not own the water itself, but he has the right to the natural flow of the stream, and the right to the use and benefit of it, as it passes through his land, for all the domestic and agricultural purposes to which it can be reasonably applied, and no proprietor above or below can unreasonably divert, obstruct