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fish and game commission, under the provisions of R. L., c. 91, $ 19.
R. L., c. 75, $ 112, is as follows:
The state board of health shall have the general oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution or by any water or ice company in this commonwealth as sources of water supply and of all springs, streams and water courses tributary thereto. It shall be provided with maps, plans and documents suitable for such purposes and shall keep records of all its transactions relative thereto.
Section 113 reads :
Said board may cause examinations of such waters to be made to ascertain their purity and fitness for domestic use or their liability to impair the interests of the public or of persons lawfully using them or to imperil the public health. It may make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as sources of water supply.
R. L., c. 91, § 19, provides that:
The commissioners, upon the petition of the mayor and aldermen of a city or of the selectmen of a town within which a great pond or a portion thereof is situated, or of thirty or more inhabitants thereof, shall cause the waters of such pond to be stocked with such food fish as they judge to be best suited to such waters. They shall thereupon prescribe, for a period not exceeding three years, such reasonable regulations relative to the fishing in such ponds and their tributaries, with such penalties, not exceeding twenty dollars for one offence, as they deem to be for the public interest, and shall cause such regulations to be enforced. Five hundred dollars shall be annually appropriated by the commonwealth to carry out the provisions of this section.
This section was amended by St. 1903, c. 274, which authorized the commission to restock such ponds with food fish.
The facts submitted in your communication are applicable to North Watuppa Pond and its tributaries, which is used by the city of Fall River as a source of water supply.
Acting under the authority of R. L., c. 75, § 113, the State Board of Health has made certain rules and regulations governing North Watuppa Pond and its tributaries, of which only section 14 is material to the present question.
14. No person shall bathe in, and no person shall, unless permitted by a special regulation or by a written permit of the Watuppa water board of the city of Fall River, fish in, or send, drive or put any animal into North Watuppa Pond, so called, said pond being in the city of Fall River and the town of Westport and used by said city as a source of water supply. No person other than a member of said Watuppa water board, its officers, agents or employees, or public officers whose duties may so require, shall, unless so permitted by regulation or permit of said Board, enter or go, in any boat, skiff, raft or other contrivance, on or upon the water of said pond, nor shall enter or go upon, or drive any animal upon, the ice of said pond.
Your letter also states that the board of health for the city of Fall River has also established rules and regulations relating to North Watuppa Pond, in substance like those above quoted; but inasmuch as it is the clear intendment of R. L., c. 75, SS 112 to 130, to place the entire regulation of sources of water supply within the sole jurisdiction of the State Board of Health, I do not regard the local regulations referred to as material upon the matter of your inquiry. It is true that local boards may still control and abate nuisances which may be found within their jurisdiction and upon or adjacent to great ponds, whether or not such ponds are used as sources of water supply (see Stone v. Heath, 179 Mass. 388); but there is no statutory authority for the establishment by them of any permanent rules or regulations relating to sources of water supply. Such regulations, therefore, can have no effect upon the duties of the fish and game commission.
The power of the State Board of Health to make rules and regulations is conferred in order “to prevent the pollution and to secure the sanitary protection ” of great ponds which are used as sources of water supply. This is a police regulation, and in so far as such rules and regulations are necessary for the preservation of the purity of the water, they will control the provisions of general statutes regulating the rights of the public in great ponds. On the other hand, the fact that a great pond has been taken as a source of water supply does not in and of itself necessarily deprive the public of the right of fishing, or, indeed, of any other right which may be exercised without interfering with the use of the pond as a source of water supply. See Rockport v. Webster, 174 Mass. 385; Opinion of Attorney-General, Dec. 6, 1900, AttorneyGeneral's Report, 1900, p. 111.
It must be assumed, therefore, that the rules and regulations made by the State Board of Health under authority of R. L., c. 75, § 113, were based upon some finding or adjudication by such board that the use of the waters so regulated by the public for boating, fishing or taking ice, is or is likely to become a source of pollution and an injury to the water taken therefrom for the purposes of water supply, in which case the rules and regulations are authorized and are binding upon the public.
It remains to consider the effect of this rule or regulation upon R. L., c. 91, $ 19. This statute is mandatory and imposes a duty upon the Commissioners of Fisheries and Game to stock the waters of a great pond whenever a petition of the prescribed character is addressed to them ; yet, if the requirement of the section is absolute, it would follow, in the case of North Watuppa Pond, that upon petition they would be required to stock such pond without the authority to use a boat, if a boat were necessary, in distributing the fish, and the petitioners would not be permitted to derive any benefit therefrom unless the permission of the Watuppa water board of the city of Fall River was obtained. Moreover, it is within the bounds of possibility that at any time the State Board of Health may absolutely forbid fishing and boating, and thus render the operation of stocking such pond not only useless to the public, but, conceivably, injurious to the waters of the pond as a source of water supply.
In view of these contradictions it seems to me impossible to hold that any duty under R. L., c. 91, § 19, rests upon your commission to stock a pond used as a source of water supply, and upon the public enjoyment of which rules and regulations of the State Board of Health similar to those under consideration have been imposed. In other words, a great pond which is set apart as a source of water supply is, in a measure, withdrawn from the status of a great pond, and all public rights attaching thereto are subordinated to the single use to which the Legislature has devoted it. It is true that to a limited extent other public rights therein may be still exercised, but the jurisdiction of the fish and game commission is so seriously affected that, in my opinion, the mandatory language of section 19 would not be applicable, and the commission must be permitted use its discretion in determining whether or not, in consideration of the existing rules and regulations of the State Board of Health, it is advisable or proper to comply with a petition for stocking such a great pond. Very truly yours,
HERBERT PARKER, Attorney-General.