By the English rule thus modified, the legal title of New Hampshire land was in the king, who held it as trustee in his official and representative capacity, with no private interest. The dry land, and the soil under fresh rivers, brooks, and small ponds, was convertible, by his grant, into private property, for settlement, and for the advancement of the common welfare. The seashore, arms of the sea, and large ponds, by reason of their special adaptation to public uses, were set apart and reserved as public waters. They could not be converted into private estate or subjected to a private easement, by the trustee's grant, or by any act of the executive branch of the government. The distinction is between what the trustee held for public use and what he held for the purpose of sale or other appropriation to private use for the public benefit.

In 1647 the want of a definition of “great ponds” was supplied,. . . that no town shall appropriate to any particular person or persons any great pond containing more than ten acres of land, and that no man shall come upon another's propriety () without their leave.〔''Id.'' at 729.〕