Town of Wellfleet v. Glaze

• Decision Date: 20 July 1988
• Citation: 403 Mass. 79,525 N.E.2d 1298
• Parties: TOWN OF WELLFLEET et al. 1 v. John W. GLAZE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1298

525 N.E.2d 1298

403 Mass. 79

TOWN OF WELLFLEET et al. ¹ v. John W. GLAZE.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Jan. 5, 1988.

Decided July 20, 1988.

Edward W. Kirk, Falmouth, for defendant.

Elizabeth A. Lane, Boston, for plaintiffs.

James R. Milkey, Asst. Atty. Gen., for Com., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The underlying question here is the relative rights of private owners and the public in tidal flats. In August, 1986, the town of Wellfleet filed a complaint in the Superior Court citing the defendant for violating G.L. c. 130, § 67 (1986 ed.), and seeking a restraining order prohibiting the defendant from mooring his boats on a certain "shellfish grant" on a portion of the defendant's flats. The town's request for a temporary restraining order was granted. The town later applied for a preliminary injunction, but its application was denied. Several months later, the town moved for summary judgment on its claim for injunctive relief. The motion was allowed, and an order was entered permanently enjoining the defendant from mooring boats on the grant. The defendant appealed, and we transferred the case here on our own motion.

While the underlying legal issues are complex, they turn on a comparatively simple set of facts. In November, 1983, the town issued a shellfish license on 1.85 acres of tidal flats abutting the defendant's upland ² on Loagy Bay. The license, issued pursuant to G.L. c. 130, § 57 (1986 ed.), ³ authorized certain individuals to plant, grow, and take shellfish within the area covered by the license. The shellfish, specifically quahogs and oysters, are raised in frame structures known as "growout pens," which are covered by a plastic mesh.

Since 1972, the defendant has moored a thirty foot catamaran, a nineteen foot flat-bottomed sailboat, and a sixteen foot outboard motor boat in the area now subject to license. At low tide, the three boats rest directly on the tidal flat, killing or endangering some of the shellfish and tearing the mesh covering the growout pens. In June and July of 1986, the town's shellfish constable observed the three boats moored in the licensed area and requested the defendant to remove them. The defendant refused, whereupon the town brought this action, claiming that the defendant had violated G.L. c. 130, § 67, ⁴ and seeking an injunction.

The right to use tidal flats has long been regulated by the Colonial Ordinance of 1641-1647. Under the Colonial Ordinance, in order to encourage construction of private wharves, littoral owners were granted title to the shore as far as mean low tide mark or one hundred rods from the mean high tide mark, whichever is less. ⁵ Reserved from the grant, however, were rights in the public to free fishing, fowling, and navigation. Commonwealth v. Alger, 7 Cush. 53, 67-68 (1851). In effect, the public reserved a kind of easement over the land. See Opinion of the Justices, 365 Mass. 681, 685, 313 N.E.2d 561 (1974) ("the ordinance is properly construed as granting the benefitted owners a fee in the seashore to the extent described and subject to the public rights reserved"); Commonwealth v. Alger, supra at 77, citing Storer v. Freeman, 6 Mass. 435 (1810) ("the flats are held by the riparian proprietor, subject to an easement").

The defendant argues that the town exceeded the bounds of the public easement by issuing the shellfish license. He claims that the effect of that license is to take his property without compensation. The town responds that issuing the shellfish license was simply a valid exercise of the legislative power to regulate the public's right to fish. The court need not decide those claims, however, because the court concludes that the Superior Court lacked authority to enjoin the defendant's activities.

1. Authority to issue the injunction. The town asserts that the Superior Court's authority to issue an injunction in this case is conferred by G.L. c. 214, § 7A (1986 ed.), which states in pertinent part: "The superior court for the county in which damage to the environment is occurring or is about to occur may, upon a civil action in which equitable or declaratory relief is sought ... by any political subdivision of the commonwealth, determine whether such damage is occurring or is about to occur and may, before the final determination of the action, restrain the person causing or about to cause such damage; provided ... that the damage ... constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment." Thus for the matter to be properly before the Superior Court this action must have been one in which equitable or declaratory relief was sought because (1) damage to the environment was occurring or about to occur, and (2) that damage constituted a violation of a statute, the major purpose of which is to prevent or minimize damage to the environment. ⁶

The town has not demonstrated that the major purpose of G.L. c. 130, § 67, is to prevent or minimize damage to the environment. Although protection of shellfishing undoubtedly provided some motivation for the enactment of the statute (see 1909 H.R.Doc. No. 1320, Report on the Mollusk Fisheries of Massachusetts, which speaks of shellfish as a State asset and which proposes the system of private licensing now at issue to cure the "almost complete exhaustion" of the shellfish supply "in certain areas." Id. at 4, 6 ⁷), it cannot be that the major purpose behind § 67 is the protection of the environment because it is the consent of the licensee that determines whether the conduct described is within the statutory sanction. If the Legislature in enacting § 67 was primarily motivated by a desire to protect the natural resources of the Commonwealth, it surely would not have limited the statutory sanction only to acts done without the licensee's permission.

Therefore, the court concludes that the major purpose leading to the enforcement of § 67 is not to prevent or minimize damage to the environment, and that authority to issue an injunction was thus not conferred by G.L. c. 214, § 7A. However, since this appeal presents issues of significant public concern, the court makes some additional comments.

2. Authority to issue shellfish license. Section 57 of G.L. c. 130 authorizes the selectmen of a town, after notice and hearing, to "grant to any person a license for a period not exceeding ten years to plant, grow, and take shellfish ... in, upon or from a specific portion of flats or land under coastal waters." Section 57 goes on to say that "[l]icenses under this section shall be issued ... so as [not] to impair the private rights of any person...." Thus, the statute only authorizes the town to issue a license upon privately held flats, so long as no taking or other impairment of private rights results. ⁸

The public right to fish includes the right to dig for shellfish. Commonwealth v. Howes, 270 Mass. 69, 73, 169 N.E. 806 (1930). See Proctor v. Wells, 103 Mass. 216, 217 (1869); Weston v. Sampson, 8 Cush. 347, 355 (1851). The Legislature may enact reasonable regulations appurtenant to that public right, including granting exclusive fishing rights to particular individuals. Commonwealth v. Hilton, 174 Mass. 29, 33, 54 N.E. 362 (1899) (Legislature may grant exclusive fishing rights); Weston v. Sampson, supra at 352-353 (Legislature may regulate and abridge public right of fishing in tidal flatlands). Therefore, the court concludes that it is within the power of the Legislature to authorize towns to issue licenses for shellfishing on privately owned tidal flats.

3. Relative rights of the parties in the licensed area. However, the conclusion that the town had the authority to issue a license for shellfishing on the defendant's flats does not dispose of the question whether, in mooring boats on the area of the shellfish grant, the defendant illegally encroached upon rights reserved to the public.

"We have frequently had occasion to declare the limited nature of public rights in the seashore." Opinion of the Justices, 365 Mass. 681, 687, 313 N.E.2d 561 (1974), and cases cited. While the public clearly has the right to take shellfish on tidal flats, there is no general right in the public to pass over the land, id., or to use it for bathing purposes. Butler v. Attorney Gen., 195 Mass. 79, 80 N.E. 688 (1907). Nor may the public take soil or seaweed resting on the soil of the flats. See Anthony v. Gifford, 2 Allen 549 (1861) (seaweed); Porter v. Shehan, 7 Gray 435 (1856) (soil). Compare Austin v. Carter, 1 Mass. 231 (1804) (owner may exclude others by building on flats), with Commonwealth v. Alger, 7 Cush. 53, 89 (1851) (owner's right to build wharf subject to reasonable regulation by Legislature). In close parallel with this case, it has been held that there was no liability in trespass for interference with the part of a fishing weir the plaintiff placed on tidal flats adjoining the land. Locke v. Motley, 2 Gray 265, 266 (1854). The court noted, in dictum, that it doubted whether the plaintiff had any right to fix stakes in the riparian owner's land for the purposes of securing the weir. Id. at 267.

These authorities indicate that, while the public clearly retains the right of fishing in the intertidal zone, that right is far from unqualified. As Chief Justice Shaw commented in the course of discussing the reserved public right of navigation, "[l]ooking at the terms of this law, and the purposes for which it was intended, the object seems to have been, to secure to riparian proprietors in general, without special grant, a property in the land ... subordinate only to a reasonable use of the same by other individual riparian proprietors and the public, for the purposes of navigation ..." (emphasis added). Commonwealth v. Alger, 7 Cush. 53, 89 (1...