419 Mass. 227 | Mass. | 1994
The plaintiffs, Terrence P. and Simone B. McCarthy, filed a verified complaint in the Land Court, naming as defendants the town of Oak Bluffs (town) and the Commonwealth, and seeking a declaration, pursuant to G. L. c. 185, § 1 (k) (1992 ed.),
By a special act of the Legislature, St. 1952, c. 474, the town was granted the right to control and administer use of the new bulkhead.
After a hearing on the plaintiffs’ motion for summary judgment and the town’s motion to dismiss (treated as a motion for summary judgment because matters outside of the pleadings were presented, see Mass. R. Civ. P. 12 [b], 365 Mass. 754 [1974]), a judge in the Land Court entered judgment in favor of the defendants on the ground that the Commonwealth holds title to the land west of the 1903 mean low water mark (see Appendix), and that, by special act, the Commonwealth had conferred on the town the exclusive right to control and administer use of the plank deck. See note 5, supra. We granted the plaintiffs’ application for direct appellate review. We affirm the judgment.
The following undisputed facts are drawn from the materials submitted to the judge. In 1903, one Everett Joy, a predecessor in title to the plaintiffs, was granted a license to construct a bulkhead (old bulkhead) along a part of the shore of the harbor, fill in behind the bulkhead with material dredged from the harbor, and construct a wharf or pier perpendicular to the bulkhead. In 1951, the Legislature authorized the Department of Public Works (department) to construct a new bulkhead, parallel to, and approximately twenty to twenty-five feet to the west of the old bulkhead (new bulkhead). Res. 1951, c. 29.
After the new bulkhead was constructed, the Bergerons, the plaintiffs’ immediate predecessors in title, continued to maintain and to operate a wharf extending into the harbor
“Nothing in this license shall be construed as authorizing use or occupancy of land or flats not owned or controlled by the licensees except with the consent of the owner or owners thereof. [7 ]
“Nothing in this license shall be construed as granting the right to cross the fill and pile platform [new bulkhead and plank deck] built by the Department of Public Works [in 1951] to reach said wharf of the licensees except in accordance with such understandings or agreements as may be made with the Town of Oak Bluffs relative thereto or by decree of the Land Court . . . .”
In 1956, the Bergerons filed a petition in the Land Court for registration of their land. In pertinent part, the petition described their land as bounded on the west by “Oak Bluffs Harbor.” The petition listed the town and the Attorney General, for the Commonwealth, among the owners of adjoining land. The town entered an appearance in the registration proceedings and objected to registration of the Bergerons’ land.
In connection with the Bergerons’ land registration petition, a senior civil engineer employed by the department undertook an investigation “to establish a line of private ownership in Oak Bluffs’ Harbor at the locus and also to determine if the pier, bulkhead and solid fill built by [the department] around 1951 was on land of the Commonwealth.” In a report dated October 10, 1957, filed with the Land Court, the engineer recommended selection of the 1903 mean low water mark as the line representing the division between public and
The town then agreed to withdraw its objection to registration of the land on the basis of a stipulation between the town and the Bergerons in which it was agreed that “[t]he westerly boundary line of the petitioners[’] land is established as the easterly side of the old bulkhead shown on petitioners [’] plan so that petitioners have no title to any portion of the bulkhead.”
On the basis of these materials, the Land Court judge to whom the registration petition was assigned wrote to the Bergerons’ attorney, observing that, based on the report and the plan submitted by the senior civil engineer, it appeared that the petitioners did not own “the westerly portion of the land which bounds on Oak Bluffs Harbor or Lake Anthony,” and that there seemed to be nothing in the examiner’s report “which prove [d] that the petitioners ha[d] title to said westerly portion of the land.” The judge questioned not only the Bergerons’ right to claim to the waters of the harbor, he also questioned the town’s right to stipulate that the Bergerons owned to the easterly side of the old bulkhead, because, he concluded, the triangular area between the old bulkhead and the line appearing as the 1903 mean low water mark was land of the Commonwealth. See Appendix.
In 1977, seventeen years after the registration decree entered, the severed case was dismissed for lack of prosecution.
It appears that the judge accepted the town’s argument that principles of collateral estoppel precluded the plaintiffs from claiming an ownership interest in the new bulkhead and the plank deck. In support of his decision, the judge made reference to (1) the registration decree, which described the locus as bounded on the west by the 1903 low water mark of the harbor; (2) the stipulation by the Bergerons that the westerly boundary of their property was to the east, or landward, side of the old bulkhead; (3) the terms of the various licenses under which the Bergerons operated and maintained their pier after the new bulkhead was built; and (4) the law that private parties, absent a legislative act, cannot acquire property rights below the mean low water mark, through adverse use, loches, or estoppel. See G. L. c. 260, § 31 (1992 ed.); Opinions of the Justices, 383 Mass. 895, 904-905 (1981).
“ ‘A fundamental precept of common-law adjudication embodied in the related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent juris
With respect to real property, “[a] judgment in an action that determines interests in real . . . property . . . [h]as preclusive effect upon a person who succeeds to the interest of a party to the same extent as upon the party himself.” Restatement (Second) of Judgments, supra at § 43 (1) (b). See Levy v. Cherry Hills Village, 666 F. Supp. 201, 203 (D. Colo. 1987); Ward v. Davis, 298 Ark. 48, 50 (1989). These principles apply in cases involving registered land. See Lyon v. Parkinson, 340 Mass. 567, 568-569 (1960). Thus, to the extent the Bergerons would have been precluded by the decree entered in the registration proceeding from asserting a right to the new bulkhead and the attached plank deck, the plaintiffs also are barred from asserting such rights.
At issue is whether the Bergerons’ interest in the land to the west of the 1903 low water mark on the plan (see Appendix) was actually litigated and decided during the course of the registration proceeding. See Miles v. Aetna Casualty & Sur. Co., supra at 427. Pointing to the motion to sever registration of the parcels to the east and the west of that line, the plaintiffs contend that the question of ownership of the land to the west of the 1903 low water mark was reserved by means of the severance, and was neither fully litigated, nor essential to resolution of the registration proceeding resulting in the 1960 decree. They further argue that an affidavit they submitted in connection with their motion for summary judgment raised at least a genuine question as to whether the
In 1956, the Bergerons sought to register their land as bounded on the west by Oak Bluffs Harbor. The new bulkhead and plank deck had been in existence for some four years. On its face, the petition for registration presented a clear claim by the Bergerons to ownership of the land up to and including the new bulkhead and the plank deck. The town and the Land Court judge who dealt with the registration viewed the petition as raising this claim. The town objected to entry of a decree in accord with the petition to protect its right to control use of the plank deck.
In connection with the petition, an investigation was made for purposes of locating the natural, or historic, low -water mark of the harbor, because, as matter of law, this line would represent the division between private and Commonwealth, or public, ownership rights along the shore of the harbor. See Potter v. Howe, supra. “The waters and the land under them beyond the line of private ownership are held by the State, both as owner of the fee and as the repository of sovereign power, with a perfect right of control in the interest of the public.” Michaelson v. Silver Beach Improvement Ass’n, 342 Mass. 251, 253 (1961), quoting Home for Aged Women v. Commonwealth, 202 Mass. 422, 427 (1909). Documents associated with the registration proceeding and the licensing of the Bergerons’ wharf, including, but not limited to the engineer’s October 10, 1957, report, refer to the selection of the 1903 mean low water line as marking the division between public and private ownership rights along the shore
Nor do we perceive any unfairness in holding the plaintiffs to the legal effect of the 1960 registration decree. It seems clear that the parties to the registration proceeding understood the significance of the decree entered in 1960. After the engineer’s report and plan were filed with the Land
The principal point on which the plaintiffs rely for the contention that the western boundary of their land was not resolved by entry of the 1960 decree is the severance of the petition with respect to the land lying west of the 1903 low water mark as appearing on the appended plan. Yet, despite the importance of the rights at stake, see Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 630 (1979), the severed petition was never pursued. In view of the other factors indicating that the line dividing public from private ownership rights at the locus had been resolved by entry of the 1960 decree, and was understood to be resolved, the failure to prosecute the severed petition reflects an understanding that any attempt to do so would have been fruitless. We conclude that the question of rights in the disputed land was fully considered in the prior registration proceeding, and was resolved by entry of the 1960 decree. The 1960 decree was properly afforded preclusive effect by the judge.
So ordered.
General Laws c. 185, § 1 (k) (1992 ed.), provides, in pertinent part, that the Land Court shall have exclusive jurisdiction of “[a] ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved . , .
By an act of the Legislature, the name “Lake Anthony” was changed to “Oak Bluffs Harbor” in 1956. St. 1956, c. 228.
The special act provided as follows: “Upon the completion of the timber bulkhead in Oak Bluffs harbor, constructed under authority of chapter twenty-nine of the resolves of "nineteen hundred and fifty-one, the town of Oak Bluffs shall administer the facilities provided and may make such rules, regulations and charges for their use as may seem reasonable, and may lease portions of the structure and land abutting thereon and approaches thereto for terms not exceeding one year.”
By Res. 1951, c. 29, the Legislature authorized the department to carry out various projects for the improvement of harbors and waterways in the Commonwealth, including the improvement of Oak Bluffs Harbor. The plaintiffs’ verified complaint describes the construction of the new bulkhead “as part of a project to improve the navigability of Oak Bluffs Harbor.”
The license issued in 1970 read: “Nothing in this license shall be construed as authorizing encroachment on property not owned or controlled by the licensees except with the consent of the owner or owners thereof’ (emphasis supplied).
It appears that the 1903 low water mark was selected because no fill had been placed in the harbor prior to 1903, so that the low water mark in that year was, in fact, the natural low water mark. The plaintiffs agree that the 1903 mean low water mark represents the division between private property and land held by the Commonwealth in trust for the public. See, e.g., Opinions of the Justices, 383 Mass. 895, 902-906 (1981). Their claim to rights in the new bulkhead and the attached plank deck is based on the contention that the 1903 low water mark lies to the west of the position in which it is shown on the Appendix.
The engineer’s report, dated October 10, 1957, states, in part: “Since Oak Bluffs Harbor is a great pond of the Commonwealth the line of private ownership would extend to ‘ordinary low water.’ ... A 1903 plan of Oak Bluffs Harbor shows a Mean Low Water line prior to the placing of any fill in the pond. ... As shown on the accompanying chalk, the line of private ownership (Mean Low Water) lies inside the ‘line of the old bulkhead.’ ”
On. September 23, 1958, the Land Court judge in the registration proceeding wrote to the Bergerons’ attorney listing a series of matters that had to be addressed before a registration decree could enter. The judge expressed his opinion, based on the engineer’s report and accompanying chalk, that the Bergerons’- property extended only to the 1903 mean low water line as located by the engineer.
In the course of the registration proceeding, it was discovered that a sizeable portion of the Bergerons’ existing wharf, or pier, was not covered by license. The Bergerons, therefore, petitioned for a license to maintain the existing wharf. In a recommendation for approval of this license, written by an assistant civil engineer of the department, it was noted that “[ojf interest in [the] Land Court case was determination of the line beyond which the Commonwealth owns the bed of this harbor.” Some three years later, in 1961, the Bergerons applied for a license to rebuild and extend the wharf, or pier. In a recommendation for approval of the license, the same engineer noted “that a line [the 1903 mean low water mark] has been adopted which for all practical purposes represents the division between Commonwealth and private ownership.”
In the Land Court, the plaintiffs also argued that their claim of right to control a portion of the plank deck depended in part on their implied rights under various licenses granted by the Commonwealth. They have not pressed the point before this court. We note briefly that the plaintiffs’ use of the plank deck has been permissive under the licenses issued by the Commonwealth, and that, absent a legislative act, a private individual cannot acquire a right in property below the low water mark. See Opinions of the Justices, 383 Mass. 895, 901-906 (1981). See also G. L. c. 260, § 31 (1992 ed.).
The plaintiffs do not appear to argue that a mistake was made when the 1960 decree was entered. See G. L. c. 185, § 114 (1992 ed.). We express no opinion as to whether, on the facts of this case, the plaintiffs could prove a mistake within the meaning of the statute. See Cities Serv. Oil Co. v. General Dynamics Corp., 14 Mass. App. Ct. 131, 135-136 (1982).
