10 Mass. App. Ct. 623 | Mass. App. Ct. | 1980
This action was brought by the plaintiff seeking review (G. L. 30A, § 14) of a decision by the Department of Environmental Quality Engineering (DEQE)
1. The permit under G. L. c. 91, § 10A. The plaintiff’s attack on the decision of the DEQE relies on the provision in the fourth paragraph of that section set out in the margin.
Further, the legislative history of the fourth paragraph indicates' no intent to accomplish such results. The fourth paragraph emerged as a compromise, fashioned by a conference committee, between the final House version and the final Senate version of the bill which eventuated in § 10A. Both the House and the Senate versions, when referred to the conference committee, contained two paragraphs. In both bills the first paragraph set out the powers of the harbormaster substantially as now set out in the first paragraph of § 10A. The Senate version of the second paragraph provided, as does the present statute, a right to appeal action by the harbormaster under the first paragraph by a “person aggrieved by a refusal to” issue a permit. The House version, however, gave such right of appeal not only to a person refused a permit, but also to any person aggrieved by the grant of a permit. It seems significant to us that the bill reported by the conference committee and passed by the House and Senate retained the Senate version (“any person aggrieved by a refusal” only) but added the fourth paragraph (as well as the three subsequent paragraphs presently in the statute.)
Thus, we see no violation of DEQE’s statutory responsibility in refusing to adjudicate the conflicting property claims. In the case at bar, the DEQE ruled “that the existence of a dispute as to whether the Applicants’ easement over the land in question is sufficiently broad to encompass the installation of the proposed temporary float and moorings is not a proper reason for the Gloucester Harbormaster or for [the department] to deny approval of the proposal under G. L. Chapter 91, section 10A.” It further found that “the Applicants have asserted a colorable
This seems to us to be sensible administration with which we cannot quarrel. Indeed, it is justified by the phraseology of the fourth paragraph, for in determining that the defendants are not complete strangers to the private flats here involved, the DEQE has determined (in terms of the fourth paragraph) that these are not “private flats of other than the applicant” so that the owner’s consent does not come into play.
2. Easement Rights. The plaintiff attacks the declaration of the defendants’ easement rights in par. l.b of the judgment
From the affidavits, it is undisputed that the portion of the right of way from the uplands to the low water mark is impassable mud at low tide. Accordingly, the defendants have “the right to make [the right of way], passable and usable for its entire width having due regard to the rights and interests of others. This follows from the general principle
Beyond this, however, the parties interpret par. l.b of the judgment as declaring the scope of the defendants’ “easement rights” to include the right to maintain the ramp and moor the float for which the Fossas received permission from the DEQE. This is also reflected in the judge’s conclusion that “[t]he float in question is necessary for the defendants’ enjoyment of their easement rights.” But reasonableness of use was a question of fact, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 679 (1965); Meehan v. Barry, 97 Mass. 447, 450 (1867); Churchill v. Harris, 257 Mass. at 502; Guillet v. Livemois, 297 Mass. at 341, and created a triable issue which the affidavits did not obviate. Thus, the declaration on summary judgment in par. l.b was erroneous. Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976). Lurensky v. Merchants Beef Co., post 832 (1980), and cases cited.
Accordingly, the judgment is reversed, and the case remanded to the Superior Court for further proceedings in accordance with this opinion. Such proceedings may include the entry of a partial summary judgment (see Mass.R.Civ.P. 54[b], 365 Mass. 821 [1974]), incorporating paragraphs l.a and l.c of the judgment.
So ordered.
All the parties agree that this is the effect of the DEQE decision.
For a discussion of the property rights in flats, see Boston Waterfront Deo. Corp. v. Commonwealth, 378 Mass. 629, 632-637 (1979). See also Newburyport Redevelopment Authy. v. Commonwealth, 9 Mass. App. Ct. 206 (1980).
“Nothing in this section shall be construed as authorizing the placement of floats or rafts and appurtenant anchors or bottom moorings on private flats of other than the applicant if objected to by the owner or owners thereof.” G. L. c. 91, § 10A, fourth paragraph, inserted by St. 1967. c. 543.
The course of the legislation may be gleaned from an examination of the following material: 1967 House Doc. No. 3754 (the original bill); 1967
5 In context, “colorable” appears to mean nothing more than “disputed” though we need not decide that. Whatever the extent of the phrase “colorable claim,” it obviously extends to the claim made under the deeds in this case.
This paragraph reads: “l.b. The defendants’ easement rights extend either to the low water mark or to a point one hundred rods below the high water mark, whichever is shorter.”
The plaintiff makes no argument in his brief before us, as he did in the court below, that the defendants’ easements “to the Annisquam River” do not extend as set out in the judgment. (See n.6.) See Old Colony St. Ry. v. Phillips, 207 Mass. 174, 179-181 (1911); Michaelson v. Silver Beach Improvement Assn., 342 Mass. 251, 260-261 (1961) (“words of similar import . . . convey title to the low water mark”). See also Valentine v. Piper, 22 Pick. 85, 94 (1839) (presumption in grant is that it extends to low water mark); Frankel, Law of Seashore Waters and Water Courses: Maine and Massachusetts 50-51 (1969).
These paragraphs read:
“l.a. General Laws c. 91, § 10A does not require the plaintiff’s consent before a float permit may be issued on application by the defendants.”
“l.c. the decision of the Department of Environmental Quality Engineering in this action is affirmed.”
We note that paragraph two of the judgment is directed to the harbormaster who, however, is not a party to this action. No question has been raised as to that paragraph of the judgment. We assume, of course, that if called upon the harbormaster would act in accordance with this opinion.