McFadden v. Haynes & DeWitt Ice Co. , 86 Me. 319 ( 1894 )

Walton, J.

This is an action to recover rent for the use of flats on the easteidy shore of the Kennebec river, in the town of Dresden. The action has been referred, a hearing had, a report made, and the report accepted ; and the caséis before the law court on exceptions to the acceptance of the report. The award was in favor of the plaintiff and the Ice Company excepts.

The only question argued by' counsel, and the only one we find it necessary to consider, is whether an ice company, operating upon one of our public rivers, has a right to deposit the snow scraped from its ice upon the flats of an adjoining owner, without the latter’s consent.

We think the question must be answered in the negative. No case has been found which sustains such a right, and we do not think it can be maintained upon principle.

The argument urged in its support rests upon a supposed analogy between the rights of fishermen and the rights of ice-cutters. It is. claimed that, if a fisherman may enter upon another’s flats, and anchor his boat there, and dig up the soil in summer, or, in winter, place an ice boat or a hut upon the frozen surface, an ice-cutter, by analogy, should be allowed temporarily to incumber another’s flats with the snow scraped from his ice.

We can not admit the soundness of this argument. Property rights can not be established by analogy alone. The fisherman has a right to go upon another’s flats to take his fish, because the ordinance of 1647, which gave to the adjoining owner the flats in front of his land, expressly reserved the right of fishery. The fisherman has a right to go upon another’s flats because it is one of his reserved rights. But no such right was reserved to the ice-cutter. His right to cut ice upon our public rivers and ponds results from the fact that, below the line of low w-ater, the state owns the beds of navigable rivers and great ponds, and holds them in trust for the public. Below the line of low water every one may cut ice. It is a public right. Above the line of low water, no such right exists. Nor does it exist upon non-navigable rivers or private ponds. Nor does it exist upon flats. And we fail to perceive how an ice company, operating upon one of our navigable rivers, can possess the right to deposit the snow scraped from its ice upon the flats of an adjoining-owner, without the latter’s consent. It is not among the reserved rights mentioned in the ordinance of 1647, nor, so far as we can discover, has the right thus to incumber another’s land been recognized or affirmed by judicial decision, either in this country or in England. It is the, opinion of the court that such a right does not exist.

Exceptions overruled.