323 Mass. 725 | Mass. | 1949
The plaintiff seeks by this bill to enjoin the defendant selectmen and the defendant town of Province-town from permitting the defendant Wilson Line of Massachusetts, Inc., to occupy any part of,“Town Wharf” at Provincetown for the docking of its regular excursion vessels from Boston during the months of June, July, August, and September, and to enjoin the last named defendant from so docking such vessels under the purported authority of a lease to it by the town, dated March 10, 1948, of docking privileges at the southeasterly end of the wharf. In the Superior Court a decree was entered in favor of the plaintiff.
The case seems to have been tried in the court below and to have been argued here on the assumption that both leases were legally made to the extent of the power of the town to make them. We decide the case on the same assumption.
The lease to the plaintiff, although it granted only a right to use the southwesterly end of the wharf and part of a building, contained this provision, “the lessor to have the right to allow other boats at any part of the wharf when the lessee’s [plaintiff’s] boat is not there, but is not to let such privilege to any excursion boat having regular sailings from Boston during the months of June, July, August and September . . We think it plain that the lease to the Wilson Line of the privilege of docking at the southeasterly end of the wharf its regular excursion boats from Boston during these same months is in conflict with the former grant, and as the defendants do not now appear to contend to the contrary we shall not labor the point.
In our opinion the town did have power to make the exclusive grant to the plaintiff with respect to regular excursion boats from Boston during the summer months. In Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65, we held that in view of the fact that the town had originally acquired the wharf as a public landing under the authority of St. 1928, c. 253, by which it was authorized to “maintain and operate said property as a wharf and public landing,” it could not grant an exclusive use to a single company in derogation of the rights of the rest of
Since the decision in that case the Legislature has enacted St. 1938, c. 55, of which § 1 provides that the town “may lease the whole or any portion” of “Town Wharf.” This power is granted without qualification or condition of any kind. We are not here called upon to deal with any attempt of the town to lease for a private use public property still needed for the public use for which it was acquired. See Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65, 68. Doubtless the statute should be so construed as to avoid constitutional difficulties. But use as a terminal for a public carrier is a public use — as much so as, for example, would be the use of a highway for a street railway or for various other public services for which locations, often exclusive, are commonly granted. See Boston v. Treasurer & Receiver General, 237 Mass. 403, 414; Prince v. Crocker, 166 Mass. 347, 361; Commonwealth v. Morrison, 197 Mass. 199, 203-204. We have no doubt that the general power of the Legislature over land and property devoted to public uses extends far enough to authorize such appropriation and regulation of the use as the town has attempted in this case. That power has been defined in the broadest terms in various cases relating to public ways and to other property held for different kinds of public uses. See, for instance,
The authority granted to the town by St. 1938, c. 55, § 1, to lease “the whole or any portion” of the wharf would have permitted a lease of the entire wharf to the plaintiff to the exclusion of all others. We think it permitted a lease of part of the wharf with the right to exclude a competitor from the rest of it. Many of the grants held valid in the cases hereinbefore cited were necessarily exclusive of the grant of similar rights to others, and indeed it might often happen that a desired public service could be obtained only in that way.
Since the lease to the plaintiff was valid, including the exclusive feature, the defendants were properly enjoined from acting under the new lease until the expiration of the plaintiff’s lease.
Decree affirmed with costs of appeal.