182 Mass. 80 | Mass. | 1902
This is an action of contract to recover of the defendant the amount assessed upon him by the board of har
The displacement for which compensation is sought was caused by the filling by the defendant of a portion of the land and flats formerly belonging to one Donald McKay, and which have passed by mesne conveyances to the defendant, — the deed to him bearing date March 31,1897. By St. 1851, c. 26, McKay was authorized “ to extend and maintain his wharf into the harbor channel as far as the line established by the act entitled, ‘an act concerning the harbor of Boston,’ passed on the seventeenth day of March, in the year one thousand eight hundred and forty.” St. 1840, c. 35. The harbor line here referred to was changed by St. 1882, c, 48. As now established the harbor line is within that fixed by the St. of 1840. But as we understand the agreed facts and the plans, the defendant’s wharf does not extend beyond the line established by the St. of 1882. The filling for which compensation is sought has been done by the defendant since June, 1897. Before the deed to the defendant there had been more or less filling by the defendant’s predecessors in title and pile wharves had been built. The property does not seem during this time to have been developed according to any plan, and the filling, although considerable in amount, appears to have been of a desultory nature, and to have consisted largely of refuse matter dumped there by the city of Boston and,others by the permission of the,owners.
We do not understand the plaintiff to contend that, whatever rights McKay had under the St. of 1851 have not passed to the defendant. And the first question is whether that statute operated as a grant, or was only a revocable license. It is plain, it seems to us, that it operated as a legislative grant subject to the terms and conditions expressed in it. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 87. No particular words are necessary to constitute a legislative grant, and the Commonwealth could divest itself of any right or title in or to the flats belonging to McKay, as well by an act of the Legislature, as
The next question and a more difficult one, and one which was suggested but not considered in Hamlin v. Pairpoint Manuf. Co. 141 Mass. 51, is whether since the passage of St. 1866, c. 149, the owners of flats are subject to the regulations of the harbor and land commissioners, and if so to what extent. We do not find it necessary to consider or pass upon the general question thus stated. Undoubtedly all real estate may be subjected to some restraint for the general good. But in the present case the Commonwealth seeks to make the defendant pay for the displacement of tide water caused by the very acts which he was authorized by the St. of 1851 to do. The defendant does not complain that the harbor line of 1882 is within that established by the St. of 1840, and very likely the substitution of the
The defendant also contends that he had authority, under a license granted by the secretary of war of the United States in June, 1897, to do what he has done, and that the work had already been begun -within the meaning of those words as used in St. 1866, c. 149, § 4, and Pub. Sts. c. 19, § 8, so that the provisions of those statutes are inapplicable. But in view of the conclusions to which we have come on the questions already considered it is not necessary to pass upon the questions thus presented.
Judgment for the defendant.