of himself and the state." In that of Pennsylvania: "The right of the citizens to bear arms in defense of themselves and the state shall not be questioned." In that of South Carolina: "The people have a right to keep and bear arms for the common defense." In that of Virginia: "A well-regulated militia composed of the body of the people is the proper, natural, and safe defense of a free state." In some of the states the language is condensed into "The right of the people to keep and bear arms shall not be infringed."

But, however concise the language of the provision, it should be construed in connection with the well-known objection to standing armies and the general belief in the need and sufficiency of a wellregulated militia for the defense of the people and the state. Thus construed it is a provision for preserving to the people the right and power of organized military defense of themselves and the state and of organized military resistance to unlawful acts of the government itself, as in the case of the American Revolution. To quote Bishop, Statutory Crimes, § 793: "In reason the keeping and bearing of arms has reference to war and possibly also to insurrections where the forms of war are so far as possible observed." The phrase itself, "to bear arms," indicates as much. The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as "bearing arms." The use of the phrase suggests ideas of a military nature.

From the foregoing premises I think there are deducible several propositions as to the power of the legislature to restrict and even forbid carrying weapons by individuals, however powerless it may be as to the simple possessing or keeping weapons.

The constitutional guaranty of a right to bear arms does not in-clude weapons not usual or suitable for use in organized civilized warfare, such as dirks, bowie knives, sling shot, brass knuckles, etc., and the carrying of such weapons may be prohibited. Only persons of military capacity to bear arms in military organizations. are within the spirit of the guaranty. Women, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits, may be prohibited from carrying weapons. All persons may be forbidden to carry concealed weapons. Military arms may not. be carried in all places even by persons competent to serve in the militia. They may be excluded from courts of justice, polling places,,

school houses, churches, religious and political meetings, legislative halls and the like. So the carrying of even military arms in street parades and other public demonstrations may be forbidden. In Presser v. Illinois, 116 U. S. 264, in speaking of a statute of Illinois, the court said:

(6 We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."

Lastly, I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic. The guaranty is to insure the safety of the people, their "laws and liberties," against assaults from any source or quarter, but not to give individuals singly or in groups uncontrollable means of aggression upon the rights of others. Granting that the individual may carry weapons when necessary for his personal defense or that of his family or property, it is submitted that he may be forbidden to carry dangerous weapons except in cases where he has reason to believe and does believe that it is necessary for such defense. In fine, I venture the opinion that, without violence to the constitutional guaranty of the right of the people to bear arms, the carrying of weapons by individuals may be regulated, restricted, and even prohibited according as conditions and circumstances may make it necessary for the protection of the people.

MAINE.

Lucilius A. Emery.

2 Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138 (1896).

WAYS AND WATERS IN MASSACHUSETTS

THEN ways are laid out, relocated, or repaired, problems

frequently arise with respect to waters. The surface water which collects on the way must be taken care of. It may be necessary to cross a stream. A stream may rise even within the limits of the way. Surface water may flow on to the way from adjoining estates. The physical problems with respect to these waters are for the engineer. But they raise legal problems as to the relative rights of the public and of abutters. The purpose of this article is to consider the rules of law which govern their solution.

Ways are of different sorts, such as highways, town ways, and private ways. But for the purposes of this article the distinction between these kinds of ways need not be considered. In this article the highway will be treated as the typical way unless something different is expressly stated. The problem, then, is as to the legal rules which govern the relation between highways and waters.

In Massachusetts the fee of the highway is generally in the abutter. But the fee is subject to the easement of passage incident to the highway. Moreover, the highway easement is of far-reaching character. It is not confined to a simple right on the part of the public to pass and repass on foot or in vehicles. The public as an incident of the easement may place structures in the way. Thus, poles,2 pipes,3 and wires 2 impose no additional servitude. Sewers may be built beneath the highway without "taking" any additional property. Even a subway gives the owner of the fee no right to complain.5 Horse and trolley roads are likewise 1 Boston v. Richardson, 13 Allen 146 (1866).

7

2 Pierce v. Drew, 136 Mass. 75 (1883); Cheney v. Barker, 198 Mass. 356, 84 N. E. 492 (1908).

3 Bishop v. North Adams Fire District, 167 Mass. 364, 45 N. E. 925 (1897).

4 Lincoln v. Commonwealth, 164 Mass. 1, 41 N. E. 112 (1895); Lawrence v. Nahant, 136 Mass. 477 (1884).

5 Sears v. Crocker, 184 Mass. 586, 69 N. E. 327 (1904).

Attorney-General v. Metropolitan R. R. Co., 125 Mass. 515 (1878); White v. Blanchard Bros. Granite Co., 178 Mass. 363, 59 N. E. 1025 (1901).

7 Howe v. West End Street Ry. Co., 167 Mass. 46, 44 N. E. 386 (1896); Eustis v. Milton Street Ry. Co., 183 Mass. 586, 67 N. E. 663 (1903).

within the easement. But the right to maintain these incidentals of the highway easement continues only so long as the highway itself exists, and ceases if it be discontinued.8 The constant unfolding of the highway easement so as to permit new uses by the public has left little save a name to the ownership of the fee by the abutter. So long as the highway exists as such the public has a power to act, which is substantially equal to the right of the public in those communities which own the fee of their streets.9

The right of the public is confined to the limits of the highway location. Thus where the city, in bringing a street to the established grade, caused the embankment which supported the street to encroach upon the plaintiff's land, the plaintiff may maintain an action of tort therefor and is not liable in tort for digging away the embankment up to his line.10 Again, an abutter may destroy a gutter which has been built upon his land, even though the water flowing therein is turned back and injures the highway." In neither case was the plaintiff's land "taken" for this purpose. Consequently the act of the public authorities was an unwarrantable encroachment upon land beyond the limits of the highway.

Changes in the highway surface made under public authority within the limits of the highway stand upon a different footing. At common law such changes gave no right of action, if they were made with reasonable care. Thus tort will not lie for damage to an abutter, caused by repairs made in a proper manner in the highway.12 Indeed the public authorities may change the grade of the highway without incurring common-law liability to abutters, provided the change is made in a reasonable manner.13 On the other hand, if the work be done negligently or improperly, tort will lie.14 It has been held, however, that if repairs otherwise proper

8 New England Tel., etc. Co. v. Boston Terminal Co., 182 Mass. 397, 65 N. E. 835 (1903); Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N. E. 346 (1904).

• See Commonwealth v. Morrison, 197 Mass. 199, 203, 83 N. E. 415, 416 (1908). 10 Mayo v. Springfield, 136 Mass. 10 (1883).

11 Franklin v. Fisk, 13 Allen 211 (1866).

12 Elder v. Bemis, 2 Metc. 599 (1841); Benjamin v. Wheeler, 15 Gray 486 (1860); Benjamin v. Wheeler, 8 Gray 409 (1857).

13 Callender v. Marsh, 1 Pick. 418 (1823); Purinton v. Somerset, 174 Mass. 556, 55 N. E. 461 (1899); Underwood v. Worcester, 177 Mass. 173, 58 N. E. 589 (1900). 14 Perry v. Worcester, 6 Gray 544 (1856); Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703 (1886); Brewer v. Boston, etc., R. R. Co., 113 Mass. 52 (1873).

in themselves be made in a proper manner, but with malicious motive, no action lies at common law.15 At common law, then, the public authorities have a very wide discretion with respect to changes of surface within the highway location. Statutes, as will be later shown, have given damages with respect to some matters for which there was no liability at common law. But the right of the public authorities at common law has far-reaching effects upon the relation of the highway to waters of various kinds.

For the purposes of this article waters may be divided into two main groups, watercourses and surface waters. A watercourse flows with some regularity between banks more or less defined.16 Thus, in Ashley v. Wolcott,17 Bigelow, J., said (p. 195):

"There is a broad distinction between a regular flowing stream and occasional and temporary outbursts of water, which in times of freshets fill up low and marshy places, and run over and inundate adjoining lands. To maintain a right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel with banks or sides. It need not be shown to flow continually; it may even be dry at times, but it must have a well-defined and substantial existence."

Yet some latitude is allowed with respect to definiteness of banks. Thus, where water flowed between banks with some regularity, then spread with no definite banks for about twelve rods, and then flowed between definite banks again, it was held that it was still a watercourse even at the point where the banks were indefinite.18 A watercourse, then, is determined by two factors, definiteness of banks and regularity of flow. Both must be present to a substantial extent. But it seems that some lack in either factor may be compensated by an additional amount of the other factor.

Surface water is water which has not yet become a watercourse.

15 Benjamin v. Wheeler, 8 Gray 409 (1857); Benjamin v. Wheeler, 15 Gray 486 (1860).

16 Luther v. Winnisimmet Co., 9 Cush. 171 (1851); Ashley v. Wolcott, 11 Cush. 192 (1853); Dickinson v. Worcester, 7 Allen 19 (1863); Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703 (1886); Macomber v. Godfrey, 108 Mass. 219 (1871): See also Stimson v. Brookline, 197 Mass. 568, 83 N. E. 893 (1908) (ancient ditch treated as watercourse).

17 II Cush. 192 (1853).

18 Macomber v. Godfrey, 108 Mass. 219 (1871).