ICE, LAW or. After ice has been harvested it is personalty, and i= subject to the rules of law governing that form of property. Before it is harvested it is deemed realty for most purposes, although some courts have held that a contract for the sale of all the ice on a certain pond is to be treated as a contract for the sale of a chattel. and not of an interest in real estate.
if the land beneath a particular body of water is subject to private ownership. the ice that forms on the water belongs to the owner of such land, and he has exclusive authority to gather or dispose of it. Hence a lease of the land or a con veyance of the fee carries to the tenant or to the grantee the ownership of the ice which forms during the term of the lease, or which exists at the date of the conveyance. It is in the nature of an accession to the land, being an increment arising from a formation over it, and is a part of the real estate under the rule that the owner ship thereof extends indefinitely upward from the soil.
The landowner may grant to another the right to take ice from private waters, as a profit a prendrc; that is, as a right to take the products or proceeds of land. Accordingly, the grant of a half-acre of land adjoining a mill-pond with the exclusive right to take the ice from the pond attaches this right as a profit a prendre to the half-acre, and it will pass to a second grantee of the half-acre as an appurtenance thereto. On the other hand, the landowner does not part with his right to ice which forms upon a mill-pond by granting to the mill-owner the privilege of flood ing the land in question and maintaining a pond thereon. The ice attends the ownership of the soil, not the easement of covering it with water; and if the mill owner needlessly draws off the water for the sole purpose of destroying the ice or preventing its formation, he is liable in dam ages to the landowner. Again. the owner of land under a private stream is entitled to dam the stream and take ice therefrom, provided such use does not unreasonably interfere with the rights of riparian owners below him to the use of the water.
A riparian owner's right to ice on navigable rivers depends upon bis ownership of the land under them. In States where the fee of such rivers is vested in the public the adjoining land owner has no title to the ice, and it belongs to the first appropriator. In other States, where ripa rian owners are accorded title to the land under navigable waters. they can maintain trespass against any one taking the ice without their consent. At times ice-covered streams or lakes are used as highways of travel, and the question has arisen whether the harvesting of ice upon such a thoroughfare amounts to a nuisance, as an unlawful obstruction to travel. The.courts have given this answer: In the absence of legis lation on the subject, the right of travel and the right of harvesting ice on navigable waters are public and are to be exercised reasonably. What is a reasonable use of either right depends upon the relative benefits to the community from its exercise. If the privilege of harvesting ice is of greater importance than that of traveling upon it. the latter cannot be set up to prevent or abridge the exercise of the former.
The right to harvest ice forming upon public waters is not private, but public or common. Any citizen may cuter such ice fields and take he pleases. so long as lie does not unlaw fully interfere with the like right of others. What acts amount to an appropriation of ice on public waters is a question upon which the courts are not agreed. One view is that an ap propriation is made by marking and staking off a plot of ice, and preparing the surface for cut ting. The other view is that a person does not gain any property rights in such a plot of ice until he has actually reduced it to possession. The subject is regulated in some States by statute. Consult: Gould. The Laic of Waters, Including Riparian Rights (Chicago, 1900) ; Coulson and Forbes, The Lair Relating to 1r,alcrs (London, 1902.) : and the statute. of the various States.