| Mass. | Apr 17, 1911
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
We, the Justices of the Supreme Judicial Court, respectfully answer the questions propounded by the order of April 4, 1911, a copy of which is hereto annexed, as follows :
When a public street or highway is laid out and constructed under the general laws of this Commonwealth, the public acquires an easement in the land, which includes a right to occupy it for every kind of travel and communication of persons, and every movement of property, that is reasonable and proper in the use of a public street. Sears v. Crocker, 184 Mass. 586" court="Mass." date_filed="1904-01-06" href="https://app.midpage.ai/document/sears-v-crocker-6428408?utm_source=webapp" opinion_id="6428408">184 Mass. 586. Subject to this paramount right, the owner of the fee retains his ownership of every valuable interest in the land, and he may use it in any way that does not interfere with the right of the public to the enjoyment of its easement.
The Legislature represents the public, and at any time it may enlarge or limit public rights thus acquired, having due regard to private rights of property secured by the Constitution to all the people. New England Telephone Co. Telegraph Co. v. Boston Terminal Co. 182 Mass. 397" court="Mass." date_filed="1903-01-06" href="https://app.midpage.ai/document/new-england-telephone--telegraph-co-v-boston-terminal-co-6428045?utm_source=webapp" opinion_id="6428045">182 Mass. 397, 400. So far as the rights of the public in the street or way are concerned, the Legislature can do anything referred to in any of the questions, if the proposed legislation seems reasonable and proper.
So far as the abutters are concerned, the Legislature, without their consent, can do or authorize nothing that takes away or impairs any valuable right in their property, unless the taking is for a public use, with compensation for that which is taken.
We infer that the premises on opposite sides of the street, referred to in the first question, are owned by the city or town, and that the ownership includes the fee of the street. Under this assumption, the answer to this question is in the affirmative.
To the second question the answer is, Yes, if the private individuals own all the land upon or over which the structures are to be erected.
To the third, we answer Yes, upon the same hypothesis. A regulation making licenses revocable is not necessarily unreasonable ; and the Legislature may require the payment of a rent to the city or town for the slight impairment or limitation of the previously existing public rights. Postal Telegraph Cable Co. v. Chicopee, 207 Mass. 341" court="Mass." date_filed="1911-01-04" href="https://app.midpage.ai/document/postal-telegraph-cable-co-v-city-of-chicopee-6431231?utm_source=webapp" opinion_id="6431231">207 Mass. 341.
As against the easement acquired by the public for purposes of travel and communication, an abutting owner has the right to have the street open for light and air, so long as there are no uses affecting his enjoyment of light and air to which the public desires to put the street, under the easement which it has acquired for purposes of travel and communication. If the Legislature should authorize the imposition of an additional burden upon his property for a different kind of public use which would interfere with his enjoyment of light and air, by erecting structures upon or over his land within the limits of the street, he would be entitled to compensation.
As against an adjoining landowner, one has no right to have the adjacent premises remain open for the admission of light and air. In the cases referred to in the first three questions, we assume that the owners of abutting land, upon or over which the structure would be erected, would desire the erection and would consent to it. It would, therefore, be made in their right, as well as with authority from the Legislature to make an encroachment upon the previously existing public right. The existence of this private right of the owner of the fee of the land over which the structure would be erected would preclude the owners of adjacent lands from having damage for an obstruction of light and air, possibly affecting their property abutting on other adjacent parts of the street.
Mr. Justice Loring asks to be excused from answering the questions by reason of pecuniary interest in a lot near the place referred to in one of the pending bills.
Marcus P. Knowlton.
James M. Morton.
John W. Hammond.
Henry K. Braley.
Henry N. Sheldon.
Arthur Prentice Rugg.