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04/12/78 BOSTON WATERFRONT DEVELOPMENT CORPORATION

April 12, 1978

BOSTON WATERFRONT DEVELOPMENT CORPORATION
v.
COMMONWEALTH



Suffolk. Petition filed in the Land Court on March 19, 1964. The case was heard by Randall, J.

Hale, C.j., Goodman, & Grant, JJ.

SYLLABUS BY THE COURT

Harbors. Real Property, Harbors, Wharf, Grant, Restriction, Littoral property.

The opinion of the court was delivered by: Goodman

Statute 1832, c. 102, § 1; St. 1834, c. 115; and St. 1840, c. 18, authorizing the Lewis Wharf Company "to extend and maintain their wharves, in the city of Boston, into the harbor channel," was a grant of fee simple title to certain waterfront property rather than a mere license. [219-225]

The grant of title to certain waterfront property effected by St. 1832, c. 102, § 1; St. 1834, c. 115; and St. 1840, c. 18, was upon a condition subsequent that the property be used for the purposes expressed in the statutes. [225-228]

This petition was originally brought to register and confirm title to certain waterfront property in the city of Boston, shown on the accompanying diagram (see 229, (infra)) as areas A, B, and C, and parcel F. The Commonwealth filed an answer, in effect claiming title to that portion of the property below the Baldwin low water mark of 1846 *fn1 (areas B and C and parcel F). The case was argued on the pleadings, after which the petitioner and the Commonwealth stipulated that the sole question for decision was whether the Commonwealth by certain legislative grants had given the petitioner fee simple title to the soil (beneath the fill) under the wharf which covers area B. *fn2 The Judge filed a decision in which he ruled that the petitioner had fee simple title to area B; the Commonwealth appeals from the Judge's decision. See G. L. c. 185, § 15, as appearing in St. 1973, c. 1114, § 25. The appeal comes to us on the parties' agreed statement of the case. See Mass.R.A.P. 8(d), 365 Mass. 851 (1974).

In 1832 Lewis Wharf lay entirely to the west of the Baldwin low water mark of 1846. By St. 1832, c. 102, § 1, the then owners of Lewis Wharf (through whom the petitioner claims title to area B) were "authorized and empowered to extend and maintain the said wharf into the harbor channel" to a line east of and including area B. Section 1 further provided "that the proprietors of said Lewis' Wharf, shall have and enjoy the right and privilege of laying vessels at the sides and end of their said wharf and receiving dockage and wharfage therefor. Provided, that so much of said wharf, as may be constructed in said channel shall be built on piles . . . ." Section 2 of St. 1832, c. 102, provided that "nothing herein contained shall be construed to authorize the said proprietors of Lewis Wharf to lessen or injure the rights or property of the owner or owners of any wharf or wharves adjoining said Lewis' Wharf."

Two years later the Lewis Wharf Company was incorporated by St. 1834, c. 115. By section 1 of that statute the company was given "power to hold, in fee simple or otherwise all or any part of that real estate situated in said city of Boston, including Lewis' wharf" and bounded ". . . by a line or lines in said channel as far . . . as said Lewis' wharf . . . may be lawfully extended." Section 1 further provides that the company "may, within the limits aforesaid, construct docks and wharves, lay vessels within and at the ends and sides thereof, and receive dockage and wharfage therefor, erect buildings, lay out streets and passage ways, and improve and manage said property, as to them shall seem expedient: provided, that nothing herein contained shall be understood as authorizing said corporation in any way to interfere with the legal rights of any person or persons whomsoever."

In 1837, in order "to preserve the Harbor of Boston and to prevent encroachments therein," the Legislature by St. 1837, c. 229, established a line in Boston Harbor "beyond which no wharf or pier shall ever hereafter be extended into and over the tide water of the Commonwealth." *fn3 This line lay some distance to the east of area B. By St. 1840, c. 18, the Lewis Wharf Company was "empowered and authorized to extend and maintain their wharves, in the city of Boston, into the harbor channel, as far as the line established by" St. 1837, c. 229. Statute 1840, c. 18, further stated that the company "shall have and enjoy the same rights and privileges of laying vessels at the sides and ends of their said wharves, and of receiving wharfage and dockage therefor, which they now have: provided, that so much of said wharf as may be constructed into said channel, shall be built upon piles, and that nothing herein contained shall in any way interfere with the legal rights of the owners of any wharves adjoining that of said company, or of any other person whatever." Some time before 1850 the petitioner's predecessors in title extended Lewis Wharf to cover area B. Also, the area under the wharf was filled by predecessors of the petitioner, and it was stipulated that they had a right to do so. To understand the significance of these 1832, 1834, and 1840 statutes (hereinafter sometimes referred to as the Lewis Wharf statutes), we look to the background and development of the relevant law affecting the seashore.

By the colonial ordinance of 1641-1647 (see The Book of the General Lawes and Libertyes, at 50 [1649]), *fn4 all private owners of land bounded by the seashore, who formerly had held title only as far as the mean high water line, were granted fee simple title (subject to certain reserved public rights) to the adjoining flats as far as the mean low water line or a line 100 rods from the mean high water line, whichever was the lesser measure; the purpose of this ordinance was to encourage owners of coastal property to build wharves. Opinion of the Justices, 365 Mass. 681, 685-686 (1974), and material cited. The Colony, and later the Commonwealth, continued to hold title to the soil and waters lying beyond the flats granted by the colonial ordinance and not otherwise granted to private owners. That title is held "in trust, for public uses, established by ancient custom or regulated by law, the principal of which for fishing and navigation." Commonwealth v. Alger, 7 Cush. 53, 65 (1853). Commonwealth v. Roxbury, 9 Gray 451, 482-484 (1857). Commonwealth v. Boston Terminal Co., 185 Mass. 281, 282-283 (1904). Home for Aged Women v. Commonwealth, 202 Mass. 422, 427 (1909). Opinion of the Justices, 365 Mass. at 684-685. Nevertheless, "having the absolute right to terminate the trust which is appurtenant to its ownership, [the Commonwealth] can refuse to act longer as trustee and . . . can by way of grant pass its interest by an act of the Legislature in lands that are below extreme low water mark, and which when filled by the grantee will extinguish the right of user by the public." Commonwealth v. Boston Terminal Co., 185 Mass. at 283-284. See also Bradford v. McQuesten, 182 Mass. 80, 81-82 (1902), and cases cited.

Before 1869 the Legislature passed hundreds of acts authorizing the construction and maintenance of wharves on flats in Boston Harbor and elsewhere. *fn5 Bradford v. McQuesten, 182 Mass. at 82. Commissioners of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 354 (1941). The Supreme Judicial Court has stated that "he acts were passed to promote trade and commerce by enabling and encouraging the owners of flats to build wharves, warehouses, and other structures thereon for the use and convenience of those having occasion to resort to the ports and harbors where the flats were situated, and requiring the facilities afforded by such structures. They should be construed so as best to promote the object which the Legislature had in view, if that can be done without doing violence to settled rules of construction." Bradford v. McQuesten, 182 Mass. at 82. By the late 1860's the Legislature apparently woke up to the fact that: "Legislative grants have been made from time to time to individuals or corporations. These grants are worth to-day, in the aggregate, millions of dollars, and yet not a dollar has gone to the treasury of the State." Report Relative to the Flats and Water Areas of the Commonwealth, 1870 House Doc. No. 240, at 7. See 1868 House Doc. No. 76, at 6. The concern of the Legislature is reflected in St. 1869, c. 432, § 1, which provided that thereafter authority to erect structures in tide water "shall be revocable at any time, at the discretion of the legislature. . . ." That statute -- together with St. 1866, c. 149, "An Act to establish a board of harbor commissioners" -- began a process of regulation which culminated in what is now G. L. c. 91. "he legislative intent was declared that thereafter any such authority should be construed as a revocable license, and not a grant." Commissioners of Pub. Works v. Cities Serv. Oil Co., 308 Mass. at 354. That case points out (at 353) that grants made prior to 1869 of authority to erect structures in tide water had been construed "to operate as grants and not merely as revocable licenses"; it cites Fitchburg R.R. v. Boston & Me. R.R., 3 Cush. 58, 87 (1849), construing St. 1841, c. 35; Bradford v. McQuesten, 182 Mass. at 81, 82, construing St. 1851, c. 26; and Treasurer & Recr. Gen. v. Revere Sugar Refinery, 247 Mass. 483, 489 (1924), construing St. 1855, c. 481.

The Commonwealth concedes that since statutes similar to those under which the petitioner claims title have been construed to operate as grants and not merely as revocable licenses, it follows that whatever interest in or privilege to use area B the Legislature granted, that interest or privilege is irrevocable. The Commonwealth contends, however, that the previous decisions of the Supreme Judicial Court have left open the question as to the nature of the interest or privilege granted by the Legislature, and it urges that we hold that what was granted in area B was not an interest in the realty, but was simply an irrevocable license or privilege to use area B subject to forfeiture if the plaintiff ceased to use the wharf built over area B in a manner consistent with the Legislature's purpose in granting that privilege. *fn6 The cases decided by the Supreme Judicial Court involving pre-1869 statutes conferring authority to erect and maintain wharves on flats below the low water mark in Boston Harbor and elsewhere do not support the Commonwealth's analysis. The Supreme Judicial Court has viewed such statutes as constituting grants of title to the soil over which, pursuant to such statutes, wharves have been extended and maintained, and not as grants of irrevocable licenses.

In Attorney General v. Boston Wharf Co., 12 Gray 553 (1859), the Supreme Judicial Court was called upon to construe St. 1855, c. 455, together with certain earlier statutes; by St. 1855, c. 455, the defendants were "authorized to extend their wharf in South Boston from the line of private rights one hundred rods from high-water mark to the commissioners' line B, established by [St. 1853, c. 385], . . . and to maintain the same in the mode prescribed by law" subject to certain provisos. The Supreme Judicial Court stated in that case (at 562) that "he effect of [St. 1855, c. 455] is so plain and obvious that it cannot be mistaken," that it confirmed the rights, already granted the defendants by the earlier statutes, to the flats between the high water mark and the line one hundred rods below the high water mark, and that it "granted and conveyed to [the defendants] all the flats, below and northerly of . . . [the line one hundred rods distant from the high water mark], . . . to the commissioners' line B, which were not in front of the land or flats of any other person" (emphasis supplied). 12 Gray at 562. After further Discussion the court ...


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