Sheldon, J.
This information was filed by the Attorney General at the relation of the board of harbor and land commissioners, to restrain the defendant from making encroachments into a pond in Newton Centre, called Wiswell’s Pond, Crystal Lake, and by other names, claimed by the .plaintiff to be a great pond and subject to the provisions of St. 1888, c. 318, now embodied in R. L. c. 96. The defendant contended, that the pond was not subject to the provisions of this statute, on the ground that the pond had been granted in 1634 to John Haynes by the Court of Assistants, and, having been thus appropriated to a private person before the ordinance of 1647, was private property and was within the exception stated in that ordinance and in the St. of 1888, c. 318, §1, and R. L. c. 96, § 27.
The master to whom the case was referred has found that Wiswell’s Pond is a great pond, covering in its natural state more than twenty acres of land. The defendant owns a parcel of land bounded on the pond, upon which he was and is carrying on an ice business. He had filled the land and made encroachments upon the waters of the pond below its high water mark, such as to interfere with the use of the waters and the soil of the pond in that locality. He had received no authority to do this from the General Court or from the board of harbor and land commissioners; it was not done in a manner sanctioned by or under any license from that board. He had not in himself, [96]*96either under the Haynes grant or otherwise, any title to the waters of the pond or any right of control over them. He had not acquired any adverse right to cut ice in the pond, or any other adverse rights.
As to the title to the pond, the master found and reported that at a Court of Assistants held in Boston April 1, 1634, a valid grant of a thousand acres of land and of this pond was made to John Haynes, and that there had been no forfeiture of this grant. There was evidence that the pond had been used for at least sixty years for boating, bathing and fishing, and the cutting of ice by any one who cared to do so; and that no claim had been made by any one, either representing the Haynes interest or any one else, to control the same; that at different times some bath houses had been put upon the shore, and that at one time, when there was a drought, some attempt was made to use this water, and that the water had been used otherwise for baptismal purposes. In 1883 the city of Newton appropriated the sum of $500 to improve the shore "of the pond, and this was expended for that purpose. But the master did not find that there had been any dedication of the pond to the public by its owners; and, though somewhat doubtful upon this question, he lias not found that the general use of the pond made by the public for many years was in itself sufficient to oust any one having the right to claim under the Haynes grant from his title thereto.
But on September 12, 1870, the Commonwealth, by its commissioners on inland fisheries, executed a lease of the pond to certain parties for a term of twenty years. This lease is set out in full in an exhibit attached to the master’s report, and its contents need not be here stated further than to say that it contained strict provisions and limitations upon the acts of the lessees in and upon the pond and in the user thereof, which the lessees covenanted to observe; and provided that they should thoroughly stock the pond with black bass. The lessees took possession under this lease, and held such possession during its term of twenty years. The master found that this lease was given by the commissioners on inland fisheries acting in good faith upon the belief that the pond was a part of the public domain; that it was a declaration and claim of title on the part of the Com[97]*97monwealth; and, upon the occupancy thereunder for twenty years together with the other use of the pond made by the public during the past sixty years, that the plaintiff had shown that the title to the pond and its waters and the right to control the same had become vested in the Commonwealth by prescription.
If we assume for the purposes of this case, that the master was right in ruling that the plaintiff, in order to maintain this information, must show a title in the Commonwealth, under R. L. c. 96, §§ 25, 27, the principal question to be considered is that raised by the defendant’s exceptions to the master’s report. The defendant’s contention is that upon the facts found by the master as to the lease given by the commissioners on inland fisheries and as to the use made of the pond by the public for the last sixty years, he had no right to find that the Commonwealth had acquired a title by prescription. In spite of the ingenious argu•ment of counsel for the defendant, we do not understand that the master rested his conclusion solely upon the lease and the acts done under it. He found indeed that the general use made by the public and by individual members of the public was not by itself sufficient to show a dedication, or to oust from his title any one claiming under the Haynes grant, and that without the lease and the possession had thereunder a title by prescription would not have been shown; but this would not prevent him from considering all the evidence together, and giving to the whole of it an effect which perhaps no single part of it would have produced upon his mind ; and it seems clear to us that this is what he intended to state in his report that he did.
No claim is made that this lease was not properly given under the authority conferred upon the commissioners by St. 1869, c. 384, § 9, then in force, except that the lease was forbidden by § 8 of that act, because this pond had been specially granted by law. But the language of § 8 does not forbid a lease under § 9, and the very act of giving the lease was an assertion of the right to do so, as in Murphy v. Commonwealth, 187 Mass. 361. All disseisin in the beginning is tortious and unlawful; but this does not prevent the gaining of a right, if the tortious and unlawful possession is allowed to continue for a sufficient length of time. There is nothing in this objection. The lessees took and maintained possession under the lease for twenty years. This is [98]*98prima facie sufficient to show the acquisition of a title by prescription or adverse user. R. L. c. 202, § 20. Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 309. Nor is there any doubt in this Commonwealth that the public may acquire rights by prescription; and this right must belong to the Commonwealth itself as well as to any municipal corporation or other public body, or the individual members of the general public. Attorney General v. Vineyard Grove Co. 181 Mass. 507. Attorney General v. Abbott, 154 Mass. 323, 328. Deerfield v. Connecticut River Railroad, 144 Mass. 325. Coolidge v. Learned, 8 Pick. 503. No doubt the possession which operates such a result must be not only actual, but open, adverse, exclusive and uninterrupted, as stated in the cases cited by the defendant. Pollard v. Barnes, 2 Cush. 191. Kennebeck Purchase v. Call, 1 Mass. 482. Hawk v. Senseman, 6 Serg. & R. 21. But the evidence as to this is not reported; and it must be presumed that the master found the possession to be of the character which has been stated.
Nor is it material that this lease was not recorded. No rights of third persons claiming under any subsequent grant are in question.
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Sheldon, J.
This information was filed by the Attorney General at the relation of the board of harbor and land commissioners, to restrain the defendant from making encroachments into a pond in Newton Centre, called Wiswell’s Pond, Crystal Lake, and by other names, claimed by the .plaintiff to be a great pond and subject to the provisions of St. 1888, c. 318, now embodied in R. L. c. 96. The defendant contended, that the pond was not subject to the provisions of this statute, on the ground that the pond had been granted in 1634 to John Haynes by the Court of Assistants, and, having been thus appropriated to a private person before the ordinance of 1647, was private property and was within the exception stated in that ordinance and in the St. of 1888, c. 318, §1, and R. L. c. 96, § 27.
The master to whom the case was referred has found that Wiswell’s Pond is a great pond, covering in its natural state more than twenty acres of land. The defendant owns a parcel of land bounded on the pond, upon which he was and is carrying on an ice business. He had filled the land and made encroachments upon the waters of the pond below its high water mark, such as to interfere with the use of the waters and the soil of the pond in that locality. He had received no authority to do this from the General Court or from the board of harbor and land commissioners; it was not done in a manner sanctioned by or under any license from that board. He had not in himself, [96]*96either under the Haynes grant or otherwise, any title to the waters of the pond or any right of control over them. He had not acquired any adverse right to cut ice in the pond, or any other adverse rights.
As to the title to the pond, the master found and reported that at a Court of Assistants held in Boston April 1, 1634, a valid grant of a thousand acres of land and of this pond was made to John Haynes, and that there had been no forfeiture of this grant. There was evidence that the pond had been used for at least sixty years for boating, bathing and fishing, and the cutting of ice by any one who cared to do so; and that no claim had been made by any one, either representing the Haynes interest or any one else, to control the same; that at different times some bath houses had been put upon the shore, and that at one time, when there was a drought, some attempt was made to use this water, and that the water had been used otherwise for baptismal purposes. In 1883 the city of Newton appropriated the sum of $500 to improve the shore "of the pond, and this was expended for that purpose. But the master did not find that there had been any dedication of the pond to the public by its owners; and, though somewhat doubtful upon this question, he lias not found that the general use of the pond made by the public for many years was in itself sufficient to oust any one having the right to claim under the Haynes grant from his title thereto.
But on September 12, 1870, the Commonwealth, by its commissioners on inland fisheries, executed a lease of the pond to certain parties for a term of twenty years. This lease is set out in full in an exhibit attached to the master’s report, and its contents need not be here stated further than to say that it contained strict provisions and limitations upon the acts of the lessees in and upon the pond and in the user thereof, which the lessees covenanted to observe; and provided that they should thoroughly stock the pond with black bass. The lessees took possession under this lease, and held such possession during its term of twenty years. The master found that this lease was given by the commissioners on inland fisheries acting in good faith upon the belief that the pond was a part of the public domain; that it was a declaration and claim of title on the part of the Com[97]*97monwealth; and, upon the occupancy thereunder for twenty years together with the other use of the pond made by the public during the past sixty years, that the plaintiff had shown that the title to the pond and its waters and the right to control the same had become vested in the Commonwealth by prescription.
If we assume for the purposes of this case, that the master was right in ruling that the plaintiff, in order to maintain this information, must show a title in the Commonwealth, under R. L. c. 96, §§ 25, 27, the principal question to be considered is that raised by the defendant’s exceptions to the master’s report. The defendant’s contention is that upon the facts found by the master as to the lease given by the commissioners on inland fisheries and as to the use made of the pond by the public for the last sixty years, he had no right to find that the Commonwealth had acquired a title by prescription. In spite of the ingenious argu•ment of counsel for the defendant, we do not understand that the master rested his conclusion solely upon the lease and the acts done under it. He found indeed that the general use made by the public and by individual members of the public was not by itself sufficient to show a dedication, or to oust from his title any one claiming under the Haynes grant, and that without the lease and the possession had thereunder a title by prescription would not have been shown; but this would not prevent him from considering all the evidence together, and giving to the whole of it an effect which perhaps no single part of it would have produced upon his mind ; and it seems clear to us that this is what he intended to state in his report that he did.
No claim is made that this lease was not properly given under the authority conferred upon the commissioners by St. 1869, c. 384, § 9, then in force, except that the lease was forbidden by § 8 of that act, because this pond had been specially granted by law. But the language of § 8 does not forbid a lease under § 9, and the very act of giving the lease was an assertion of the right to do so, as in Murphy v. Commonwealth, 187 Mass. 361. All disseisin in the beginning is tortious and unlawful; but this does not prevent the gaining of a right, if the tortious and unlawful possession is allowed to continue for a sufficient length of time. There is nothing in this objection. The lessees took and maintained possession under the lease for twenty years. This is [98]*98prima facie sufficient to show the acquisition of a title by prescription or adverse user. R. L. c. 202, § 20. Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 309. Nor is there any doubt in this Commonwealth that the public may acquire rights by prescription; and this right must belong to the Commonwealth itself as well as to any municipal corporation or other public body, or the individual members of the general public. Attorney General v. Vineyard Grove Co. 181 Mass. 507. Attorney General v. Abbott, 154 Mass. 323, 328. Deerfield v. Connecticut River Railroad, 144 Mass. 325. Coolidge v. Learned, 8 Pick. 503. No doubt the possession which operates such a result must be not only actual, but open, adverse, exclusive and uninterrupted, as stated in the cases cited by the defendant. Pollard v. Barnes, 2 Cush. 191. Kennebeck Purchase v. Call, 1 Mass. 482. Hawk v. Senseman, 6 Serg. & R. 21. But the evidence as to this is not reported; and it must be presumed that the master found the possession to be of the character which has been stated.
Nor is it material that this lease was not recorded. No rights of third persons claiming under any subsequent grant are in question. The acts of the Commonwealth and of the lessees whom it put into possession are alone of importance. It is also immaterial that notice of the lease and of the acts of the lessees under it was not given to any one claiming under the Haynes grant. If there was any person in existence making such a claim, which appears to be at least doubtful, yet actual knowledge by him of the adverse user was not necessary. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338. Gray v. Cambridge, 189 Mass. 405, 418.
The other uses found to have been made of the pond by the general public were of such a character as to be entitled to consideration. West Roxbury v. Stoddard, 7 Allen, 158, 166, 167. That the master did not regard the evidence of these uses, though running through more than sixty years, as sufficient to sustain the burden of proof which he ruled was upon the plaintiff, did not, as we have already said, preclude him from adding its effect to that of the other evidence.
Accordingly, the defendant’s exceptions must be overruled; and it is not necessary to consider any of the many exceptions [99]*99taken by the Attorney General; for, if they were all overruled, yet upon the terms of this report he would be entitled to a decree.
Decree for the plaintiff.