247 Mass. 483 | Mass. | 1924
These are actions at law in behalf of the Commonwealth to recover from the defendants assessments for tidewater displacement under R. L. c. 96, § 23, now G. L. c. 91, § 21. The cases were submitted to the Superior Court on “ agreed facts.” Requests for rulings by the plaintiff were denied and others by the defendants were granted. Finding was made and judgment ordered for the defendant in each case.
1. The plaintiff filed one bill of exceptions for both cases and also appealed from each order for judgment. No question of practice has been argued. It is not necessary to consider whether, if there were no exceptions, the “ agreed facts ” might be interpreted as a “ case stated,” Frati v. Jannini, 226 Mass. 430, and thus the cases come before us rightly by appeal from the orders for judgment, Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133. G. L. c. 231, § 96. Plainly there cannot be, touching the same alleged errors in an action at law, both exceptions and appeal. The single bill of exceptions presents for review in appropriate form all the questions of law as to which error is alleged. G. L. c. 231, § 113. Lumiansky v. Tessier, 213 Mass. 182, 188. The cases will be considered on that footing.
2. In the action against Revere Sugar Refinery recovery is sought for the displacement of tidewater caused, by the filling of a portion of the flats lying in front of its upland situated between Medford Street in that portion of Boston called Charlestown and the shore of Mystic River and by erecting on those flats pile platforms and a wharf. In the action against Darrow-Mann Company recovery is sought for displacement of tidewater caused by erecting a coal wharf and storage pocket in the same general neighborhood. In both cases the tidewater was displaced within the area described in St. 1855, c. 481. The defendants have succeeded
The general question presented is whether under c. 481 of St. 1855 the defendants may displace tidewater by such filling and structures without liability therefor under R. L. c. 96, § 23, now G. L. c. 91, § 21.
It is stated in the exceptions that the structures and fills made by the defendants were almost entirely within the areas governed by 25 U. S. Sts. at Large, 425, c. 860, § 12 (as amended by 26 U. S. Sts. at Large, 455, c. 907, § 12) and by 30 U. S. Sts. at Large, 1151, c. 425, § 10. It has not been argued that these statutes of the United States exclude the operation of statutes of this Commonwealth affecting these defendants, and for the purposes of this decision it is assumed that they do not have that effect. Brackett v. Commonwealth, 223 Mass. 119. Commonwealth v. Nickerson, 236 Mass. 281.
The Mystic River Corporation was authorized by St. 1855, c. 481, § 1, “ to inclose, by a good and sufficient seawall, and to fill up the portion of flats,” including those which these defendants have filled and built upon, and to extend “ such docks as may be desired ” as therein specified, and “ to build warehouses on the above described premises, and to lay vessels at the sides and ends of the wharves and quays, and to receive wharfage and dockage therefor.” That corporation was required by § 2 to excavate other flats and by § 3 to fill the flats described in § 1 to a designated height with material excavated from defined' places. The whole work was to be done to the satisfaction of a commissioner appointed by the Governor, a power and duty devolved upon the Directors of the Port of Boston under St. 1911, c. 748, and vested in the Commission on Waterways and Public Lands under St. 1916, c. 288. By § 4 it was provided that “ the structure and excavation by this act authorized shall be commenced within three years, and shall be completed within ten years after the passage of this act.”
The Mystic River Corporation began the construction of its improvements within the time limited and has con-
3. The terms of St. 1855, c. 481, operated as a legislative grant subject to the terms and conditions therein set forth, and not as a mere revocable license. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 87. Bradford v. McQuesten, 182 Mass. 80. Question arose in Bradford v. Metcalf, 185 Mass. 205, touching the nature of rights in some of the flats within this same area before May 7, 1903. It there was said, at pages 209, 210, “ These rights had been granted by the Commonwealth to the Mystic River Corporation, had been attached to the lands, and had been held by the defendants and their predecessors as their own property ... St. 1893, c. 334, was an extension of the right to fill the defendants’ lands without paying for the displacement of tide water. ... At least this last act of the Legislature should be treated as a release and a grant to them by implication of all rights which the Commonwealth might assert as to their filling these flats under authority of the earlier statutes, and subject to the requirements of those statutes.”
4. The grant effected by St. 1855, c. 481, was upon the condition subsequent that it might be avoided if the filling was not made and the structures completed in the time limited as extended. It is manifest that a condition subsequent was created because there was a present grant in order to enable the Mystic River Corporation and its successors to enter upon the flats and erect structures and make the fill. Present rights were immediately vested in the Mystic River Corporation subject to be revoked if the contemplated work was not done within the time limited. The breach of that condition would not of itself render the grant void and revest the title in the grantor. There must be some definite act for the purpose of working a forfeiture for breach of such a condition. Private rights under conditions subsequent commonly are asserted by entry for breach, or by its equivalent, or by legal proceedings designed to secure possession. Langly v. Chapin, 134 Mass. 82. Hayden v. Stoughton, 5 Pick. 528. Thompson v. Bright, 1 Cush.
5. Where the Commonwealth is the grantor, it can take advantage of breach of a condition subsequent only by judicial proceedings or by a legislative declaration of forfeiture. That precise question does not appear hitherto to have arisen in this Commonwealth. The governing principle is settled by decisions of the Supreme Court of the United States. With reference to the manner of assertion of rights arising from breach of conditions subsequent, it was said in the leading case of Schulenberg v. Harriman, 21 Wall. 44, 63, 64, “ If the grant be a public one it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale.” This principle was applied in St. Louis, Iron Mountain & Southern Railway v. McGee, 115 U. S. 469, and in Bybee v. Oregon & California Railroad, 139 U. S. 663, and to the attempted forfeiture of lands granted in aid of the construction of railroads to be completed on or before a specified date, United States v. North Pacific Railway, 177 U. S. 435, Spokane & British Columbia Railway v. Washington & Great Northern Railway, 219 U. S. 166, Grand Trunk Western Railway v. United States, 252 U. S. 112, 123. It follows that while a grant by the sovereign power is construed most strongly against the grantee, Cleaveland v. Norton, 6 Cush. 380, 383, 384, Lynnfield v. Peabody, 219 Mass. 322, 330, the grant in the case at bar did not expire by its own limitation.
6. The record fails to show any action by the Commonwealth sufficient to revest in itself title to that which was granted by c. 481. Requirement of a license under R. L. c. 96, § 16, was far short of such action. It was a stipulation of St. 1855, c. 481, § 3, that the work authorized by the act should be done to the satisfaction of a public officer to whose
If it be assumed, as argued by the Attorney General, that under the colony ordinance the fee of the flats had vested in the defendants or their predecessors in title as owners of the upland and that the only right remaining in the Commonwealth was that of public navigation, Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34, Jubilee Yacht Club v. Gulf Refining Co. 245 Mass. 60, the same result follows. The right nevertheless was one of which the Commonwealth must repossess itself by appropriate means.
7. The applications by the defendants for licenses under R. L. c. 96, and the acceptance of licenses do not make out a case for the plaintiff. They do not affect the defendants’ rights under the grant. As already pointed out, these steps were in substance required by c. 481. Approval by -the public board of structures to be erected in tidewater was a valid regulation. In each license there was a provision that nothing therein contained should be construed to impair the legal rights of any person.
The insertion in each license of the clause requiring payment for displacement of tidewater was in derogation of the grant by the Commonwealth and hence beyond the power of the public officers to demand as a condition of granting the Acense. The general doctrine is that conditions and terms inserted in a license by a public board not authorized or warranted by law are void. Even express.acceptance of them by the Acensee has been held to be ineffectual. Keefe v. Lexington & Boston Street Railway, 185 Mass. 183. Selectmen of Wellesley v. Boston & Worcester Street Railway, 188 Mass. 250, 253. Selectmen of Clinton v. Worcester Consolidated Street Railway, 199 Mass. 279, 285. Regina v. Mann, L. R. 8 Q. B. 235.
Exceptions overruled.
Appeals dismissed.
