The plaintiff never was in the possession of the ice for the value of which this suit is brought, after it was cut and severed from the real estate. It scraped off the snow from an area which covered about half of the pond, and put down stakes to show where the line of scraping was. It then suspended operations for at least five days before the defendant began to cut ice. The question is whether this gave the plaintiff any title to the ice which it had thus scraped. We think it did not. It is too well settled to be disputed that the property in the great ponds is in the Commonwealth; that the public have the right to use them for fishing, fowling, boating, skating, cutting ice for use or sale, and other lawful purposes; and that the owners of the shores have no exclusive rights in them except by a grant of the Legislature. Hittinger v. Eames, 121 Mass. 539. Gage v. Steinkrauss, 131 Mass. 222.
The right to cut ice is common to all the public. The plaintiff has this right in common with the rest of the public, but it cannot by its own act appropriate a part of the pond by scraping it, or setting up stakes, and exclude the public from it. The ice until it is cut remains a part of the realty, and no one has any exclusive title in it. There is no statute or other law which enables an owner of the shore, or any other 'person, thus to exclude the public.
In Hittinger v. Eames, ubi supra, it appeared that the owners of the shore of Fresh Pond had, by an indenture, undertaken to divide the pond among themselves, and were accustomed at the beginning.of the winter to scrape and mark off by stakes their respective shares of the pond; but the court held that they could not thus exclude the public from taking ice.
The case of Rowell v. Doyle, 131 Mass. 474, is similar to the case at bar. There the plaintiffs had cleared off the snow, and were proceeding to make ready for harvesting the ice.. The defendant cut several holes through the cleared ice for the pur*325pose of fishing, and the plaintiffs sued him in an action of tort. The court held that the action could not be maintained, saying in the opinion, that the plaintiffs “ had the same right as others to cut and take ice which was the natural product of the pond; but they had no right, to the exclusion of other public uses, to the occupation of any part of the pond for the purpose by artificial means of increasing the thickness of the ice. At the time of the acts of which they complain, they had not cut any ice, nor were they engaged in cutting, or otherwise in the actual possession of any; but they had suspended their operations for at least a day and two nights.” If the plaintiffs had acquired any title to the ice which they had scraped, the decision must have been otherwise.
Upon the facts of the ease at bar, we are of opinion that the plaintiffs had no title to or possession of the ice cut by the defendant which enables them to maintain an action of tort in the nature of trover.
The case is not like one of capturing animals ferae naturae, or of taking possession of derelict property. It is more analogous to the case of a tenant in common attempting to take possession of a part of the common estate, by staking it off and thus excluding his cotenants.
Judgment on the verdict.