*1 Mass. 629 Development Corp. v. Boston Waterfront Commonwealth. Development Corporation Boston Waterfront vs. Commonwealth. August December 1978.
Suffolk. 1979.
Present: Quirico, Braucher, Kaplan, Liacos, Abrams, & JJ. Harbors, Wharf, Grant, Property, Restriction, Harbors. Real Littoral property. History development legal applying rules land.
shore [631-637] Discussion of the “Lewis Wharf statutes.” [637-641] Having necessarily to build a wharf over tidal land not does having
mean title that land. [641-644] lying Title to land below the equivalent low water line not to title upland. [644-646] statutes,” Pursuant to the corporation “Lewis Wharf held title in fee line, simple to lying certain land below low water but subsequent condition public purpose it be used for the for J., granted. which it was dissenting. Braucher, [646-653] filed Petition Land Court on March 1964. The case Randall, was heard J. Court,
After review Appeals Supreme Judi- cial granted Court leave obtain appellate further re- view. P.
Arnold for the Messing Boston Waterfront Develop- ment Corporation. Palmer, (Dean
Howard R. Assistant General Attorney Nicastro, him) P. General, Assistant Attorney with the Commonwealth. Jordan, Jr., P.
Loring & William S. Rosenberg, for The another, Massachusetts & Conveyancers Association curiae, amici submitted a brief. Development Corp. curiae, H. Oleskey Timothy Gailey, H. & amici
Stephen *2 submitted a brief. a the dispute J. This case arises from between
Quirico, (BWDC) Corporation Development Boston Waterfront and the of the Commonwealth over a small parcel extending of land at the end of a wharf into Boston we consider in his- dispute Harbor. To resolve must among private the allocation of perspective rights torical Commonwealth, use, the to parties, the and own one the Commonwealth’s most enjoy precious and of resources, natural its shore. 1964, Corporation,
In the and Lewis Wharf Commercial BWDC, to predecessor brought petition pursuant a 185, 1, parcel of register G. L. c. title a certain § Boston, Wharf in the city waterfront land under Lewis B,A, F accompanying of areas C and on an consisting appendix is as to this plan, copy which included an BWDC, substi opinion. negotiations, After as prolonged stipulated the Commonwealth that tute and petitioner, A, is, in simple fee of area that the BWDC was owner mark;1 the historic low water and land shoreward of petition prejudice without its BWDC would withdraw remaining F. The area in dis register only areas C and B, and is area between low water mark pute, area This existing sea wall. area covered currently land, a wharf constructed over filled the seaward end of granite of an ancient build occupied by corner partly offices, into restau ing shops, modern now renovated rants, parties agreed The and condominiums. the Land Court was whether to be decided only issue traditionally played a role critical High low water marks have and defining The water mark referred of tideland owners. low George R Bald- in 1846 one to win, that which was determined here is purpose. plan His show- appointed by this for that was court who accepted parties by both ing high and low water the lines Stone, 1 Cush. Shaw authoritative Wheeler Chief Justice as accuracy accepts 1868 Sen Doc. No. See also of the Baldwin lines. "the Petitioner obtained fee title to the soil beneath the fill” as a consequence certain acts of the Legislature Nineteenth early known col- Century lectively 102; as the "Lewis Wharf statutes.” St. c. 115; 76; St. c. St. and St. c. 18. The Land Court ruled that predecessor BWDC’s in title had simple title, obtained fee registering entered decree the land. appealed Appeals Court, Commonwealth
parties submitting an agreed statement of pursu- the case 8(d), amended, ant A. P. to Mass. R. post again Once the issue framed was whether the petitioner *3 had obtained fee title to soil the fill of the beneath area B as a of result the “Lewis Wharf statutes.” The Court, Goodman, J., in an Appeals opinion written agreed with the Land Court that predecessors BWDC’s had granted been fee simple land, title to the disputed but that it added was held "subject to a subsequent condition that it be used in accordance with the purpose expressed in those statutes.” Boston Dev. v. Corp. Com- Waterfront monwealth, (1978). 6 App. Ct. 228 agree We with Appeals the Court’s decision.
Throughout history, the of shores the sea have been recognized special as a form of property value; of unusual therefore legal to different rules from those which apply law, to inland At property. Roman all citi- zens held and had access to the seashore as a in resource common; Justinian, in the words of "they [the shores] cannot be said to to as belong anyone private property.” Justinian, Note, Institutes of 2.1.1-2.1.6 cited in The Pub- Submerged lic Trust Tidal Areas: A Sometime Tradi- Doctrine, tional L.J. Yale see A. David Rice, A Report: Study Final of Law Pertaining to the Massachusetts, Tidelands of 1971 House No. at 17- collapse 18. With the or- Empire Roman and its law, system dered public ownership of tidal areas gave a way chaos of fiefdoms. the English Under feudal law which emerged, shore was Waterfront v. Commonwealth. Boston power Crown, had which turn claimed portions its out domain to exclusive owner- possessed ship private subjects who in and use of the fact — Fraser, under a it. See Title Soil Public Waters (1918). Fact, Minn. L. Rev. 315-322 Question preceded king and The conflict between citizens things, Magna among oppo- concerned, other Charta power grant private absolute of the Crown sition rights particularly rights shore, as these interfered navigation which was so essential to the free with rising Note, Trust in Tid- commercial classes. The Public Magna compet- supra Areas, Charta, the at 765. After al legal theory ing accommodated a interests were high rights Crown’s to shore land below water divided the categories: proprietary jus privatum, or two a mark into governmental jus publicum, by
ownership interest, and a king sovereign capacity the land in his held Shively Bowlby, people. representative v. of all (1894). Alger, 7 Cush. 11-14 Commonwealth v. U.S. Roxbury, Gray 451,482-484 Commonwealth convey not latter interest the Crown could This private hands, since it was "held as trust into subjects free the common and their exercise of all supra jus navigation fishery Rice, 18. The ....” at *4 of eventually publicum to be under con- understood the was belonged jus privatum Parliament, while the trol of rights king. party the the all Since neither held convey shoreland, it with free and clear neither could Waddell, 41 v. U.S. into hands. See Martin title (16 Pet.) (1842). arrangements restored to These to use of shoreland which some of the by public guaranteed in Roman been had times. legal concepts than mere historical more are
These they very of much in the minds curiosities, were because judges Century legislators who over- the Nineteenth attempt development When we of Boston Harbor. saw legislative grants interpret significance of of the Waterfront u. Commonwealth. Boston in rights in the Boston shoreline contained the "Lewis statutes,” Wharf we writ- they must remember were who English ten men were familiar with the common law of the shore. The Court history Supreme Judicial opinions referred in its to the notion that frequently shoreland, Crown’s ownership of from which all Massa- derived, trust, titles "in historically pub- chusetts for 53, 65, lic uses.” v. Commonwealth Cush. Alger, (1851). Roxbury, Gray Commonwealth v. 482-483 (1857). v. 8 Cush. Sampson, Weston Barker Bates, 13 Pick. Legislative awareness evident, of background this historical example, for in an 1850 of the report Senate Joint Committee on Mercan- tile concerning Affairs and Insurance the flats in Boston Harbor, in which the committee stated: "By the law of all Europe, civilized system before feudal obtained in England, there was no such thing property tide omnium, waters. is, Tide waters were res they were use, for the common like air and light.... In England, Crown, fiction of a fee in the and the control of the trust Parliament, mode, we understand to have been a suit- ed to the genius law, times and the feudal insuring to the State the control over tide-waters. The Commonwealth succeeds to this control.” 1850 Sen. Doc. No. at 2. English first settlers of what is now Massachusetts
obtained their titles grants to land under from James the First and Charles the First passed organized companies chartered to settle Plymouth and Massa- chusetts Bay Colonies "absolute property the land charter, within the limits of the power making laws government for the and full colony, dominion over rivers, creeks, ports, havens, all &c. in as full and ample a manner as were they before held the crown England.” Charlestown, Commonwealth v. 1 Pick. *5 (1822). 182 jus privatum/jus publicum distinction in regard property to shoreland was carried over to new world, ownership so that the company’s was understood 378 Mass. 629 Development Corp. u. Commonwealth. “parcelled privatum of a which could be out jus
to consist private ... as property” to and individuals corporations “in trust use of all those publicum public and a jus ....” territory inhabitants of said who should become (1857).2 483-484 Roxbury, Gray Commonwealth ownership governed in the colony by Land law, English brought common “which our ancestors with Freeman, them, claiming birthright.” it their Storer v. as Owners of land bounded not, by boundary, any water such hold sea or salt “could mark; for ordinary low water all the land land below king.” 437. belonged below common to the Id. at the use of land guaran- Certain such were “Body Libertyes” pro- teed colonial who is an householder shall “Every vided that Inhabitant fishing fowling great ponds, bayes, have free and Rivers ... unless the freemen of the same Coves and have appropriated Town or the General Court otherwise and them.” The Book of the General Lawes Libertyes marks, high low As to the land between water flats, however, referred as the the Massa- commonly Eng- from the practice law and deviated chusetts colonial explained legal Parsons devel- lish law. Chief Justice (16 Pet.) Waddell, 367, 411-413 41 U.S. Chief In Martin v. regard Taney this same distinction in to the owner- addressed Justice ship Asking Jersey. whether the colonial New of shorelands Jersey king of New was “intend- from founders of tidal lands community use the new ... or for the common ed to be a trust individuals...,” parcelled he private property to be out and sold former, passed “upon the trusts” the land same since concluded king. Taney Chief it to in the hands Justice that was feeling depth of about of shoreland reveals statutes”) (the period period in this of the “Lewis Wharf which existed settlements, English “the men who first formed the when he writes: many hardships expected to encounter the could have been not world, people emigration new and to unavoidably their attended rivers, bays if the under the water at their land the banks of its pri- appropriation very immediate another was liable to doors property at 414. vate ....” Id.
Boston Waterfront Commonwealth. Freeman, in v. opment very artfully opinion his Storer 437: our this supra emigrated at "When ancestors to their first on or country, settlements were harbors arms sea; among of the and commerce was the objects earliest commerce, of their attention. For the of purposes mark high necessary. wharves erected below water were But the was not to them the colony able build at expense. persons them, To induce to the erect common ordinance, law of England providing was altered an proprietor the of adjoining land on the sea or salt water, mark, to shall hold low water where tide does rods, not ebb more than one hundred but not more where greater the tide ebbs to a distance.” Accord, 18-19; Shively Bowlby, at supra Common- ("The Charlestown, wealth v. at 183-184 supra desire and wharves, necessity piers or in- quays soon felt dividuals and the community, and the occupation of flats indispensible. government became then to encourage these objects, and prevent disputes litigations, and transferred creeks, its property coves, in the shore of all and places upon water, other salt where sea ebbs flows, giving to proprietor adjoining land the property mark, of the soil to low water where sea rods”). does not ebb above one hundred Opinion Justices, ("In 365 Mass. 1640’s, order to encourage wharves, littoral owners build colonial authorities took the step of ex- extraordinary tending private encompass titles to land far as mean low water line or 100 rods from the mean high water line ....”) rules,
This alteration of common law per- haps custom, originally a matter of just colonial found expression official in the colonial ordinance of Creeks, which declared that "all adjoining landowners Coves, places, upon other about and ... Saltwater shall have propriety [pjrovided the low water mark ... proprietor that such power shall not have liberty, vessels, to stop or hinder the passage boates or other Development Corp. u. Creeks, Coves, Sea, other mens through any or or or houses lands.” The Book of General Lawes and object “The main Massa Libertyes *7 has to Colony always chusetts ordinance been understood the of for the benefit of be to induce erection wharves Roxbury, v. note at supra, commerce.” Commonwealth 503, 515.3 the opinions Supreme
Nineteenth of Judicial Century granting “only this Court construed colonial ordinance as owner, the to qualified property” upland flats the public right navigation. the of Common- qualified (1822). Thus, Charlestown, 1 184 v. Pick. wealth case, 184, the example, supra in the at court Charlestown the the can proprietor lawfully that “even flats held them, will or hinder nothing upon erect obstruct Legislature, according the passage Only such boats].” [of court, the could authorize interference with the to passage, greater public for a necessary when dam, unquestion- good bridge, such or mill: is an ”[I]t law, navigable wa- of the common that all principle able words, or, the sovereign, in other to belong to ters corporation can public; appro- and that no individual or use, them their or confine or obstruct priate them to own them, without passage authority to over impair so as v. Charles- power.” Commonwealth legislative from M’Culloch, 185-186, 10 town, quoting Arundel v. at supra following opinion immediately This is an extensive note Roxbury, not a of the court thereto. v. but footnote Commonwealth Jr., Gray, then appears who was to have been written Horace note court, posi- Reporter who in that Decisions for this and served as an Associate Justice 1860. Thereafter he served tion from from 1873 to 1882. 1864 to and as Chief Justice of this court from upon appointment United resigned his as Chief Justice He note, Supreme 1882 to 1902. His he served from Court where States printed pages, carefully twenty-five is a annotated covering more than rivers, ponds relating development law and review thereon, seashore, grant of abutting starting with the and to lands written, 3, 1620, continuing to the date the note and November in 1857. 378 Mass. Development Corp. Waterfront
Boston (1813). extend- the colonial ordinance Although Mass. 70 mark, low water this owner- of land fee to ed "It true individuals strings attached: ship had always or or under right by grant prescription, may acquire flats with wharves occupy the ordinance of stores, navigation that the always this is on condition but impaired ....” Kean v. materially of the stream be not Curtis, Stetson, 5 Pick. See also Drake v. (1848); at v. Alger, supra Cush. Commonwealth 354; 70-79; at v. Cham- supra Crocker Sampson, Weston 437, 441 plin, against background legal
It is of historical Wharf, of Lewis developments proprietors first BWDC, wharf on Bos- predecessors in title to built their *8 ton A Lewis Wharf on Carleton’s 1797 appears Harbor. Winsor, in 4 (reproduced Plan of Boston Memorial Histo- 1832, [1883]); of Boston 26 ry by when the first of the passed, long "Lewis Wharf statutes” was it was a estab- 1832, 102, of the harbor lished feature scene. Statute c. "proprietors” declared that the of Lewis Wharf "are here- and empowered authorized to extend and maintain channel,” the said wharf into the harbor as far as to a mark, described line which was seaward of low water "Provided, wharf, that so much of said may be con- [i.e., water], structed in said channel below low shall be later, piles built on ....” Two years proprie- these same incorporated tors and their associates were an act of Legislature into the "Lewis Wharf Company, with hold, otherwise, to in fee or power simple, part all or any of that real estate” within certain lying bounds around Wharf, Lewis’s and Hancock’s and were authorized with- wharves, in that area to "construct docks and vessels lay ..., therefor, dockage wharfage receive erect and and buildings, lay passage ways, improve out streets and and manage property, expedi- and said as to them shall seem nothing ent: herein contained shall be "provided, authorizing corporation any way said understood as or legal rights any person persons interfere with the u. Commonwealth. year 115, 1834, § later, 1. whomsoever.” St. c. A this same Company empowered, Lewis Wharf "authorized and purchase "land, wharf, to neighboring and hold” the and flats” of powers well, Wharf as "with all
Snow’s privileges, requisi- and and to all the duties and 1835, in the 1834 Act. tions” stated St. c. 76. This series of statutes was but one of a multitude of passed grant- 1810’s, in the similar acts 1820’sand 1830’s ing parties privileges various wharf in Boston Harbor. e.g., See, 1815, 171; 1816, 23; 1829, 92; St. c. St. c. St. c. 1832, 113; 57; c. St. 35; St. c. and c. St. c. wharfing St. c. 45. The statutes are themselves but larger example of a class of one statutes which the Legislature granted property privi- Massachusetts leges private turnpike companies, companies, canal bridge building companies, and dam etc. as a means of stimulating private develop- investment in economic e.g., See, 1822, 78; 150; St. c. St. ment. St. theory 54; 1835, c. 111. The was that such c. taking[s], although St. “under- pri- with a commenced view the advantage promised stockholders, vate be utility and certain to the State.” Boston immense &Rox- Corp. Newman, bury Mill Pick. convergence private profit
This benefit rapid development stimulated such commercial in Boston Legislature perceived 1835 the Harbor that regulation a need for *9 development. passed of further harbor It appointing survey three to resolution commissioners Bos- they ton Harbor and to define "such lines as shall think expedient beyond establish, to which no wharves shall be tide of extended into and over the waters the Common- 1835, ....” Res. c. 40. These commissioners sub- wealth report establishing beyond 1837, mitted their a line harbor, could not extended into the and which wharves be stating legal rights private property "We leave all as we of only prescribing expedient them, limits we think it found they go beyond [wharves] to establish cannot fur- 639 general good tide-water, ther into the channel or for the preservation Report and of the harbor.” of the Commis- Survey Harbor, for sioners of Boston 1837 Doc. Sen. (emphasis supplied). 47, No. at 16 This Commissioners’ adopted officially line was St. c. 229. In 1840 the Legislature gave Company authority the Lewis Wharf to extend their wharves into the harbor channel as far as provided they upon line, this Commissioners’ were built piles. St. c. 18. This line lies to the east B. of Area question
The we must decide is whether the above stat granted Company utes the Lewis Wharf a fee title to the land the wharves which it was author underneath Preliminarily, ized to extend low below water mark. we point nothing language out that there is in the actual making these statutes of the title to land. The give authority power wharves, statutes to "extend” "improve” property, estate, "hold” real but nowhere do they explicitly convey Following long-estab land. principle statutory lished construction that "in all grants, government rights, made individuals, privileges, franchises, the words are to be taken most (Cleaveland strongly against grantee ...” Norton, 6 Cush. 383-384 [1851]; Boston, Prudential Ins. Co.v. Aged [1976]; Mass. Home Womenv. Com Proprietors monwealth, 422,436 [1909]; Mills Monatiquot on Commonwealth, River v. Roxbury, Gray [1895]; Commonwealth v.
[1857]), appear these statutes on their face do not to sus petitioner’s resting However, tain the claim.4 a decision petitioner’s argument statutory that this rule of construction apply does not "Lewis Wharf statutes” rests on various distinc- many tions applied, between the other it cases which has been believe, however, spirit this case. We it is the rather than the critical; agreeing letter of this "rule” which is with Chief Justice Shaw private grantees claiming granted where are to have been "a portion domain, government of that which the held in a fiduci- *10 relation, ary general public use,” for Roxbury, Commonwealth v. Gray applies the "rule” a fortiori.
Boston Waterfront ignore the statutes over 100 on the bare words of would grants. It history interpreting of similar is years judicial turn. precedent to examination of this that we now concerning understanding The of these cases shore following historical property develop is enhanced through ment of Boston Harbor mid-Nineteenth Cen Legislative increasing documents describe concern tury. harbor, wharf upon property with encroachment as valuable, portions great of harbor very became land. 1837 Doc. No. 47.1847 were reclaimed as filled Sen. No. 25. 1850 Doc. 3. 1851 House Doc. Sen. Doc. Sen. No. speculated property in harbor No. 106. Investors who the Common Legislature away pressured report by owners. An 1850 wealth’s flats adopt considered whether or not to harbor commissioners it, policy against saying and recommended "The such is, great degree, for land in a an individual de demand mand, companies speculations; engaged demand of — public, water is a of the while the demand for demand commerce, in which the State and nation a demand of Doc. No. at deep and vital interest.” 1850 Sen. have a development for caused the continuing pressure 28. permanent Board Har 1866 to create Legislature approval required would be Commissioners whose bor on the tidelands. building filling or proposed any 149.) (St. 1866, Legislature declared that all c. In build, fill granted or thereafter or "authority license” time, at at the any tidelands was to be "revocable enclose 1). (St. 1869, c. legislature....” discretion § passage arguments petitioner’s One prior such legislation demonstrates licenses.5 were not revocable grants 1869, 432, "Nothing in this act... reads: But note that of St. § grants on the construction of hereto have effect whatever shall Commonwealth, indicating not a whether or fore made grants.” attach revocation to such *11 641 378 Mass. Development Corp. Boston Waterfront v. Commonwealth. was first in R.R. v. question Fitchburg
This
addressed
(1849),
R.R.,
& Me.
1. Having right build a over tidal land does wharf not necessarily mean to that having title land.
Past decisions of this court have been inconsistent their relationship treatment between wharfing privileges and In the soil under the wharf. Richardson, Boston v. 360-361 soil, court stated that "The in the right title and the flats, wharf power regulate over and inclose or the such wharfing, necessarily interdependent.” are not The court States, pointed many out that shoreland owners have right to build wharves out to low water even without them, having title to the soil under and that such a have existed colonial Massachusetts before the may *12 speculate "[sjince ordinance of 1647. The court does that general granting the title in the flats to policy public right naviga- private proprietors, tion, has been manifested the ordinance legislature right from the of the to erect a wharf belonging may over flats to the Commonwealth indeed (emphasis supplied), with it a title in the id. carry flats” at decide this The issue in the case point. but does not neighboring whether of Boston or certain city flats; disputed owned a area of the courts private parties city authority stated that the fact that had that it had regulate wharfing prove in that area did not title to the land. Winsor, 563
In v. Mass. Commercial Co. Wharf (1888), a distinction language suggests the court’s also title to the between the to extend wharves and authority (similar the statutes to the "Lewis Commenting soil. on statutes”) in parties that empowered Wharf to the 1837 case to extend their docks below low water line, the court stated: "The establishment Commissioners’ mark, carry of the new harbor line did not out low-water remained as it had private ownership and the line of been, of the harbor channel. The only at the old line the harbor channel private right party either had within authorizing it the statutes the exten- given was that wharf, extend into the har- namely, sion of its lines, channel, piles a wharf built on bor within certain indirect, being hint that cryptic ....” An and somewhat water was not to extend one’s wharf below low authorized underneath being granted title to the land equivalent (1838), Bartlett, it v. Pick. Gray occurs Shaw, impor- of the many Justice who wrote where Chief property, to tideland explicating tant decisions Mass. comments, dicta, part of the land under plaintiffs wharf which is low water is part below "a domain, and owned neither parties.” of these Boston, 39, 42 (1867),
In v. Nichols on the other hand, the lessee of Lincoln’s Wharf was held to have title lying to a dock below low water. The court commented legislature soil, that "the may grant the title in the or the thereon, right to build wharves below as well as above low (emphasis water mark” supplied), leaving unclear how and when this distinction In operated. Attorney Gen. v. Co., (1859), Boston 12 Gray 562-563 a statute Wharf authorizing the Boston Wharf Company to extend its line, wharves out to the water, Commissioners’ below low give was said to of, that company ownership and "good title” to the flats within the boundaries described. In Co., Commonwealth Boston Terminal asserts, 283-284 dicta, the court Legis *13 "pass lature can its interest ... in lands that are below extreme low water mark” trust, free of any public so that when these lands are by grantee "filled will extin [it] guish of user right by public.” The holding Terminal, however, Boston is that the railroad must pay the Commonwealth for Commonwealth it acquired lands through the eminent power granted domain to it by Legislature, since State, cannot be held that any "[i]t individual, more than an parts with title in fee to real estate by implication alone; and if its land is granted to be in aid of a private corporation, even if may be thereby accommodated, more largely this intention appear must clearly express words of the act under which the is claimed.” Id. at 287.
A trio of cases interpreting St. gave owners of land in New Bedford a to extend their mark, wharves below low water leaves unclear the na- ture of the title granted such a statute. In Haskell v. (1871), New Bedford, Mass. the court refers plaintiff as "the owner in fee” of portion even that of the land and water; wharf below low and in Hamlin v. u. Commonwealth. (1886), Co., 141 the court Mfg.
Pairpoint legislative grant "as a to the owners construes the statute in the soil between their lots and the of lots of an interest supplied). But the court (emphasis channel of the river” it point care to out that also takes "[w]hether [the statute] ... it any them an absolute fee without restrictions gave to consider this case. The act necessary certainly is not them a title gave possessory purpose building wharves, trespass to enable them to maintain sufficient (emphasis supplied). invaded” In if their are Hast- Grimshaw, which cites ings Hamlin, again unnecessary it is to decide saying supra, fee, granted of 1806 an absolute whether the statute longer interest is no described as a ownership plaintiffs "the owner of the locus low fee; rather he is called [below declaration, in the so as there could described water] far (emphasis sup- property” be private plied). these cases establish no clear doctrine together,
Read title, if any, granted nature of the about to wharf be- legislative giving authority acts owners theme only appears line. The consistent low low water in a special this title is somehow event be up- title to ordinary from fee category, different more be- explored fully This difference is property. land low. low water line is not to land below the lying
2. Title
upland.
to title to
equivalent
*14
(1851), a wharf
In Commonwealth his wharf so that a Harbor extended owner on Boston mark, water of it above low piece lay at end triangular no line below which harbor commissioners’ but below the him indicted reach. The Commonwealth wharves were to line; he answered that for the Commissioners’ breaching water mark and down to low property he owned the it him of the use of deprive could not the Commonwealth opinion, Shaw’s Chief Justice compensation. without and history of the relevant review an exhaustive after law, case concluded that of the ordinance of by virtue "in Alger high held the land between and low water fee, subject navigation].” to a reserved easement Id. [for However, at 81. the court also held that it was competent Legislature, for the without to compensation, deprive it, Alger part of the use of since "real estate... situated sea-shore, sea, separating upland on the from the to public acknowledged which the have a common and right,... should be held to somewhat more re- use, regulations upland strictive its than interior and estate.” Id. at 95. Similarly, Crocker v. Champlin, (1909), Mass. this court denied the plaintiff shoreland claim for compensation owner’s for flood- ing Commission, of his flats the Charles River Basin stating that if the Commonwealth flooded land above mark, high compensation made, water would have to be but that "the ordinance creating private in flats property right reserved this for the benefit of all the people.” In two cases in which private parties sought have not, register BWDC, title like to land below low water mark, but to land high marks, between and low water court has held that their title could be only registered Gen., with certain restrictions. In Butler v. Attorney a petitioner sought register title an unimproved beach on the at shore Gloucester. The General Attorney wished the Land Court to peti- declare tioner’s title subject to certain pub- reserved lic. This court concluded that public did not have petitioner’s use beach bathing purposes, had, the Attorney General among things, request- other ed, but held that are opinion that a decree should "[w]e be premises entered that are held petitioners fee, however, subject, portion as to that between high mark, and low water easement of the for the purposes of navigation fishing fowling, and free passing over and freely through water without underneath, use of the land wherever the tide ebbs and flows.” language adopted This identical in Michael- *15 Mass. 629 Waterfront u. Commonwealth.
Boston Assoc., v. Beach Improvement son Silver petitioner’s title to shoreland on registering Wild Harbor.6 appropriate
If a restriction on the title is land be- mark, it high necessary tween and low water is even more mark, low has traditionally for land below water public been held to be committed to the do- inviolably statutes,” assuming main. Even that the "Lewis Wharf licenses, type, like other statutes of its were not revocable right an irrevocable to the use of the de- and did wharfage purposes, land for and related this does scribed to the conclusion that BWDC owns the soil at not lead title. The simple issue in unconditional fee land public to fulfil a need for granted predecessors to BWDC’s Harbor, Boston and the development pur- commercial of below, is pose grant, explained inextricably of the ownership BWDC’s of the land. related to 3. land below low water line can be granted The public purpose, State only fulfil that purpose to that land are ended when is extin- grantee guished. granted the Illinois Legislature
In
the Illinois
a one mile
in fee
all land within
Central Railroad
Michigan.
of Lake
In
square
mile
of the shoreline
by one
generosity,
Legislature
excessive
repenting its
challenged
this
The railroad
attempted
repeal
grant.
revocation and the case
attempted
validity
Supreme
ruling
Court. In
on
went
to the United States
owns the
pointed
the Court
out that
State
question,
but
people,
tide waters in trust
for the
soil under
of the wa-
navigation
in the
people
interest of
"[t]he
quiet title
Supreme
likewise held in
Court of California has
parties’
soil
actions to shoreland
navigation
public
public
"subject
for the
uses
to the easement
commerce,
upon
...
to enter
of the state
and
possess
and to the
preservation and advancement of
the same for the
Co.,
576, 599
Marks
People v.
Fish
Cal.
uses....”
California
Whitney,
6 Cal. 3d
*16
Boston Waterfront u. Commonwealth. may improved in ters and commerce over them be many by wharves, instances the erection of docks and piers purpose may grant therein, for which the State parcels submerged long lands,” of and that "so disposition purpose, objec- their is made such no valid for grants” (emphasis supplied). tions can be made to the (1892). Illinois, Illinois Cent. R.R. v. 146 U.S. requirement, granted only This that such lands be for public purposes, was held the Court to be central to the governmental power. notion of "The State can no more property people abdicate its trust over in which the whole interested,” stated, are entirely the Court "so as to leave them private parties,
under the use and control of ex- cept parcels improve- in the instance mentioned for the navigation ment of the parcels waters, and use of the or when disposed impairment can be of without of the public remains, interest in what than it can abdicate its police powers government in the administration of and preservation peace.” Holding the any grant Id. at 453. necessarily
of the kind at issue revocable, upheld revoking it ership. the Illinois statute the railroad’s own- legislative
This court has also held that acts must be for public purpose. Opinion Justices, 332 Mass. (1955). Boston, 781-782 Lowell v. 111 Mass. public enjoyment It has defined a use as "one the advantage open public equal and of which are to the on may only terms. The circumstances be such that a rela- tively portion may participate small of the inhabitants benefits, but the use or service must ofbe such nature community it that merely essence affects them as a and not Opinion Justices, as individuals.” 567, 571 public purpose The served the "Lewis Wharf’ and other similar statutes was defined this court as: "to promote by enabling encourag- trade and commerce ing wharves, warehouses, the owners of flats to build other structures thereon for the use and convenience of having
those occasion to ports resort and harbors ....” McQuesten, at 82. supra Legislature Bradford expressed judge its intention to all requests for shoreland grants by public this standard of use in an report the Joint Committee on Mercantile Affairs and Insur- ance, that flats saying granted, "should be not for benefit, result, not economical but strictly for harbors, the benefit of the where they are situated. *17 petition presented Whenever a is for leave to occupy them, be, single question been, should as it always has — —or, will the grant benefit the harbor? will the in- facilities, given creased which will be to commerce and commercial enterprise, compensate slight for words, detriment of the harbor? ... In other the flats each and harbor every of the State should be devoted entirely improvement benefit and particu- of that lar 1850 harbor.” Sen. Doc. No. at 4 (emphasis in original). time,
At that it was probably inconceivable to the men Legislature who sat in the or on the bench that the harbor would ever cease to be much used for commercial ship- ping, might or that a wharf be more profitable as a foun- private dation for pleasure condominiums and boats than as a facility serving public needs of commerce and trade. speculate did not on what should They become of the land granted proprietors development to further cease, maritime commerce if that very commerce should because did it. But they not envision this court has held before that where corporation granted, a even irrevo- cably, public the use of certain for previously property public purpose, implied there was an condition in the granted that the could not retain the company loca- using purpose tions without them for the they which Commonwealth, v. granted. Ry. were Boston Elevated 310 (1942). R.R., 566 v. 4 Mass. Worcester Western Met. (1842). 564, 566 See York New Elec. Lines Co. Empire (1914). Co., City Subway 235 U.S. 194 This court has public held that where the use of or publicly-granted also 378 Mass. Corp. Development approve changes Legislature time, the must over
land Department changed Works, Pub. use. Robbins v. Greylock 328, 330 Gould v. Reservation Comm’n, See Chase v. Sutton (1849); Mfg. Co., Commonwealth v. Cush. (1822).7 Charlestown, 1 Pick. litigation ques- party to this has addressed the
Neither present disputed property is tion whether the use public purposes for use consonant with the which granted. question open land was This remains after our opinion today. hold, however, subject We do that BWDC’stitle to public B the land Area is to that same trust on originally it, which the Commonwealth held and that it may only purpose approved by Legisla- be used for a public ture as a use. import holding
The essential of this is that the land in question ordinary private not, like land held in fee development absolute, at the sole whim impressed owner, trust, but it is with a gives public’s representatives an interest and *18 responsibility development. concept in its This is difficult language complete harmony to describe in language in with the applied ordinarily privately of the law owned property. dealing prop- We are not with the allocation of erty private between individuals when we are con- public cerned with a resource such as Boston Harbor. adopted by Ap We believe that the formulation peals appropriately expresses Court, the intention under grant lying statutes, made the Lewis Wharf and we endorse it. We therefore hold that the BWDChas title to property simple, its in fee but to the condition subsequent public purpose it be used for the granted.8 which it was 7 R.R., Pittsburgh See also State v. Cleveland & 94 St. 80 Ohio Court, Supreme considering where the Ohio the railroad’s line, stated,
claims to use of the land between the shore and the harbor by acquiescence "The state as trustee for cannot abandon property the trust or enable a diversion of it to ends different object from the for which the trust was created.”
8 has, report Metropolitan that the District Commission note a We theory underpinning holding
The our was well-ex- pressed by professors Alfred E. McCordic and Wilson G. Crosby article, in their 1890 Harvard Law Review The Right Right Navigable of Access and the to Wharf Out to (1890). reviewing Water, 4 Harv. L. Rev. After history development, they of tidelands conclude: "The grants particular pur- State, however, these lands for a pose; namely, depend- to further its commercial interests ing upon navigation. It unreasonable, therefore, is not say upon that the condition that the land be used purposes for no other than those of the commerce marine. property purpose, If the is used for other the State privilege entering determining should have the riparian proprietor’s estate.” petitioner argues subsequent that conditions are generally recog only law, disfavored in the and should be expressed language considerably sharper nized when ambiguous and less than that at issue here. Boston Con (1932). Clapp Oakes, sol. Gas Co. v. v. (1900). Wilder, Rawson School Disk Uxbridge, Rights Goldstein, 7 Allen Entry and Possibilities of Reverter as Devices to Restrict Land, the Use of 54 Harv. L. Rev. This argument, although ignores generally correct, the sui — generis ultimately nature of the Commonwealth’s — public’s property. interest in shore This is an inter ordinary property est which transcends the rules of law. example, twenty-year For statute of limitations on recovery actions the Commonwealth for the of land apply right, "any property, does not title or interest of *19 high great the below water mark or in the commonwealth ponds.” opinion, 260, § L.G. c. 31. Earlier in this we have length special property rights discussed at the nature of land, conveying imposed just when certain Commonwealth such a — public purpose. condition that it be used for a stated See 1968 House Doc. No. 87. at 5: 1974 House Doc. No. 6215. at 2-3. true, is as the petitioner argues, the shore. It to land along hesitate in on normally placing that courts conditions of of alienability land which restrict the free conveyances However, concerned, we that land. when are as we are here, the State giving away by with the into resource, irreplaceable hands of an a different standard must control. that,
The petitioner if finally contends even the Lewis Wharf statutes did create a on its condition title land, the Commonwealth has lost the right proceed against it of any breach this condition on account of Therefore, G. L. c. 31A. it the argues, existence § of any question such condition is moot. not This raised issue squarely presented to the Appeals Court (d), under Mass. R. A. P. 8 that being issue "[wheth- er the Land Court erred finding petitioner simple obtained fee ....” concluded, agree- title We have ing Court, Appeals with the petitioner does not title; have fee absolute therefore the of judgment the Land Court must be amended. Final resolution of the questions arising 31A, G. L. under c. must await § further proceedings. 31A, L. 260,
Whether G.
c.
which
basically
is
a statute
§
of
on
pursue
limitations
actions
from
arising
placed
conditions
on ownership of land before
applicable to this
complex
case is a
question. The solution
of the question requires not
of
only
construction
amendments,
statute and its
but
an
of
analysis
also
land,
other statutes governing
on
G.
e.g.,
conditions
L.
184, 23,
184A,
3, 5,
and G. L. c.
of
study
§
§§
body
legislative history concerning these
Al-
statutes.
though
parties
both
allude to these matters
in their
briefs,
argued
neither party has
them
We do
thoroughly.
not believe we can
disposition
ques-
make
final
óf this
tion on
the basis
the record
us.
now before
The remarks
follow, therefore,
meant
suggestive
are
to be
issue,
outlines of the
and not determinative
result.
*20
St. limitation affecting of restrictions lands owned or conveyed by Concerned that to the "contrary legis- Commonwealth.” thereof, original lative intent created the [the § 31A] misapprehension applied to lands owned and con- [it] commonwealth,” veyed by Legislature declared in unequivocal terms that 31A "shall not be construed to § to, to, not apply apply reversionary interests do[es] fee upon simples determinables or fee right entry or condition broken of the common- wealth, whether created before or after the effective date act, passage of the of this in lands owned conveyed by commonwealth, notwithstanding any lapse of time or passage any prior Report law.” See also Legislative Committee on the Relative to the Judiciary Accompanying Legislation, Intent of the 1974 House Doc. Whether, so, how, No. at 2. and if this after-the-fact legislative intent affects the expression rights of the parties argue proceed- we leave for them to further In ings. present state of this case we do not reach clearly BWDC’s contention that 31A so forecloses the § it pursuing against Commonwealth from of action alleged for an breach of the condition that the issue is moot. hold, Court, Appeals
We as did the that BWDC’s owner ship question of the land in is subject to the condition that it public purpose be used for a related "promotion to the trade and by enabling commerce and encouraging of] wharves, warehouses, owners of flats to build and other structures thereon for the use and convenience of those having ports occasion resort and harbors ....” McQuesten, Mass. at 82. Whether Bradford BWDC’s current use of the land is consistent with that not, public purpose, and if what proper remedy might be, we leave for such further proceedings as the parties *22 appropriate deem or may necessary.
So ordered. J. (dissenting). Braucher, agree I with the court that 1832, 102, original question might as an St. c. well have been read as a revocable license rather grant, than a as 432, 1, provided St. subsequent legisla- § I agree past tion. also that our decisions have established statutes, that such before were grants rather than licenses, revocable and that we should stand by those R.R., R.R. v. & Fitchburg Boston Me. decisions. 3 Cush. (1849), interpreted as "ir- deciding there was an Note, grant” Gray revocable But I do agree not that the grant subject to a condition not in the expressed statute.
I do not in the any find record indication that the exis- litigated tence of a condition was claimed or in the Land Court. There parties stipulated only that issue was whether "the Petitioner obtained fee title to the fill pursuant legislative the soil beneath to the The in his decision discussed the grants.” judge questions grant whether the words of the were limited to the wharf legislative itself and whether acts constituted a grant license; rather than a he did not mention claim that grant subject to a condition. The Common- 378 Mass. Development Corp. u. Commonwealth. argued in the Court that the stat- Appeals
wealth’s brief license and title gave only petitioner’s only utes that "was to the actual wharf itself to its lawful extension.” grant unexpressed the issue of a to an Apparently subject Appeals condition was raised Court on its own initiative.
If the condition issue had been aired in the Land fully Court, it I reviewing principle would start with the the statute here in issue "operated legislative terms and subject conditions therein set and not as a mere revocable forth, (emphasis license” supplied). Treasurer & Receiver Gen. v. Revere Re Sugar 247 Mass. finery, and cases cited. Cf. (1902) McQuesten, (grant Bradford it”). to terms and "expressed conditions only expressed condition in the 1832 requires statute any part the wharf constructed in the harbor channel be "built on piles” parallel lines; be with described suggestion there is no that there has been a breach of that condition. The condition now in issue is defined on the court basis of verbal formulas in committee re ports judicial opinions first committed to writing *23 many years grant. after the present decision leaves in limbo the ownership particular in litigation. tract The resulting uncertain- as to that
ty may tract not be a matter of grave public concern, but we are told that there will be a similar mis- chievous effect on uncounted In parcels. other time the be uncertainty may alleviated a broad interpretation of what uses are consistent with "public purpose” condition, embodied in the operation or of G. L. Meanwhile, however, 31A. present decision § clog creates a on the alienability of land to a contrary public policy prevailed that has for centuries.
I would affirm the decision of the Land Court. u. Commonwealth.