United States v. 1.58 ACRES OF LAND, ETC., Civ. A. No. 80-2207-G.

• Decision Date: 19 August 1981
• Docket Number: Civ. A. No. 80-2207-G.
• Citation: 523 F. Supp. 120
• Parties: UNITED STATES of America, Plaintiff, v. 1.58 ACRES OF LAND SITUATED IN the CITY OF BOSTON, COUNTY OF SUFFOLK, COMMONWEALTH OF MASSACHUSETTS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

523 F. Supp. 120

UNITED STATES of America, Plaintiff, v. 1.58 ACRES OF LAND SITUATED IN the CITY OF BOSTON, COUNTY OF SUFFOLK, COMMONWEALTH OF MASSACHUSETTS, et al., Defendants.

Civ. A. No. 80-2207-G.

United States District Court, D. Massachusetts.

August 19, 1981.

Kenneth P. Nasif, Asst. U. S. Atty., Boston, Mass., for plaintiffs.

Harold Widett, Widett, Slater & Goldman, Boston, Mass., for Trustees of Constitution Realty Trust & 409 Trust.

Howard Palmer, Asst. Atty. Gen., Boston, Mass., for Commonwealth of Mass.

Alan Hoffman, Lynch, Brewer, Hoffman & Sands, Boston, Mass., for J., R., and James Faro.

MEMORANDUM OF DECISION

GARRITY, District Judge.

The United States filed a Complaint in Condemnation on October 1, 1980, to take certain waterfront property at 409 and 411-423 Commercial Street in Boston. This property had been selected by the Commandant of the United States Coast Guard for "use in connection with the redevelopment and improvement to Coast Guard Support Center, Boston, and for such other uses as may be authorized by Executive Order." The interest in the property that the government seeks to take is "the fee simple title, subject, however, to existing easements for public roads and highways, public utilities, and pipelines." The United States also filed on October 1, 1980, along with its Complaint and Declaration of Taking, an ex parte motion for an Order for Delivery of Possession. The Government's motion was allowed on October 2, 1980.

The only interested party who objected to the terms of the taking was the Commonwealth of Massachusetts. The Commonwealth filed an Answer and Counterclaim on October 28, 1980. Both the Answer and the Counterclaim denied that the United States could obtain a fee simple absolute in such portions of the land described in the Declaration of Taking that lie below the low water mark¹ in Boston Harbor. The Commonwealth contends that such a fee, as modified by the language of the Declaration permitting "such other uses as may be authorized by Congress or by Executive Order" could vitiate the perpetual public trust that is impressed upon land below the low water mark and which is administered by the Commonwealth. The Commonwealth is concerned that the terms of this taking may put the submerged land forever beyond the state's control for purposes of the trust. This would happen if the United States could convey a fee simple absolute title to the submerged land to a private individual, free of the trust administered by the Commonwealth.

The owners of the property at 409 and 411-423 Commercial Street, after reaching an agreement with the United States on the amount of compensation, moved for summary judgment on November 28, 1980. The owners contend, without dispute, that whatever interest the Commonwealth has in the submerged part of the property is noncompensable. The United States then filed its brief in opposition to the answer and counterclaim of the Commonwealth on February 26, 1981, and the Commonwealth responded on April 2, 1981. A hearing was held on April 10, 1981, at which the Commonwealth's objection to the taking was resolved by stipulation. The Commonwealth's objection to the language, "such other uses as may be authorized by Congress or by Executive Order" was resolved by adding the following stipulated language: if the taken property is ever "declared to be excess to the needs of the Federal Government, it will be disposed of in accordance with Title 41 C.F.R. § 101047.303.2 entitled `disposals to public agencies' in effect at this date of April 10, 1981." The Code of Federal Regulations provides that the taken land will be offered first to the Commonwealth before it can be offered for sale to private individuals. The stipulation, the order of distribution, and the judgment were entered by the court on April 16, 1981, and the case was duly closed.

All parties, however, assented to the Government's motion to vacate judgment and order for distribution which was filed on April 27, 1981. The United States claimed, at the hearing held on May 26, 1981, that it was entitled to a full fee simple title, without any restriction or limitation, and that the stipulation and judgment as entered were unacceptable. We allowed the motion to vacate on May 26, 1981, whereupon the United States filed a motion to dismiss the answer and counterclaim of the Commonwealth at the close of the hearing. We heard oral arguments on the merits of the Commonwealth's objection on June 2, 1981.

The principal argument made on behalf of the United States in response to the Commonwealth's objection is that since the Commonwealth concedes that the use in connection with the Coast Guard Support Center is a public use, nothing remains for this court to review. Ledford v. Corps of Engineers, 6 Cir., 1974, 500 F.2d 26, 28. Further the Commonwealth's counterclaim and request for declaratory relief should likewise be dismissed, since the only pleading permitted in response to a complaint in condemnation is an answer. United States v. 6,321 Acres of Land, 1 Cir., 1973, 479 F.2d 404, 406; Fed.R.Civ.P. 71A(e). We agree with the United States' argument that the counterclaim and request for declaratory relief should be, and is hereby dismissed. However, we find that the Commonwealth's answer properly raises its objection to the taking.

The Commonwealth's admission that improvement of the Coast Guard Support Center is a public use does not foreclose judicial review of this taking. First, the Commonwealth's objection is directly concerned with the public use of the condemned land. Its concern is that the taking would permit an eventual private use of land below the low water mark which, by its inherent and peculiar nature, is forever impressed with a public trust. The language of the Declaration specifying "and such other uses as may be authorized by Congress or by Executive Order" permits an initial public use to be followed by disposal to private individuals for private uses. See 41 C.F.R. § 101047.303.2 (1980); see also 40 U.S.C. § 258f. Second, the Commonwealth contends that the language of the Declaration, permitting an eventual private use of the land, is in this case beyond the scope and purpose of the Declaration of Taking Act, 40 U.S.C. § 258a.² This is also an objection properly raised by the Commonwealth's answer. See Washington Metropolitan Area Transit Authority v. One Parcel of Land, D.C.Cir., 1975, 514 F.2d 1350, 1352.

The oral arguments of the parties on May 26, 1981, led to a crystalization of the Commonwealth's objection. The issue is whether or not the United States may take a full fee simple title to land below the low water mark without destroying the perpetual public trust impressed upon that land. If it cannot, then serious constitutional and statutory questions are raised concerning the power of the federal government to destroy forever an important aspect of the Commonwealth's sovereignty. We hold, however, that the United States may obtain full fee simple title to land below the low water mark without destroying the public trust which is administered by both the federal and state sovereigns.

Public trust theory has its roots in the Roman law. For centuries, land below the low water mark has been recognized as having a peculiar nature, subject to varying degrees of public demand for rights of navigation, passage, portage, commerce, fishing, recreation, conservation and aesthetics. See Note, The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L.J. 762, 777-778 (1970). Historically, no developed western civilization has recognized absolute rights of private ownership in such land as a means of allocating this scarce and precious resource among the competing public demands. Though private ownership was permitted in the Dark Ages, neither Roman Law nor the English common law as it developed after the signing of the Magna Charta would permit it. Boston Waterfront Development Corporation v. Commonwealth, 378 Mass. 629, 1979 Mass.Adv.Sh. 1992, 1994-1996, 393 N.E.2d 356; Note, supra, at 772-774. The common law held that rights to property below the high water mark were divided into two categories: "a proprietary jus privatum, or ownership interest, and a governmental jus publicum, by which the king held the land in his sovereign capacity as a representative of all the people." Boston Waterfront Development Corporation, supra, 1979 Mass.Adv.Sh. at 1995; see Shively v. Bowlby, 1894, 152 U.S. 1, 11-14, 14 S.Ct. 548, 551-553, 38 L.Ed. 331. The king could convey the jus privatum, but could not convey the jus publicum because this interest was held in trust for all the people. Since Parliament eventually took control of the jus publicum, while the king retained the jus privatum, neither could convey a free and clear title to a private individual. Boston Waterfront Development Corporation, supra, 1979 Mass.Adv.Sh. at 1996; see Martin v. Waddell, 1842, 41 U.S. 16 Pet. 367, 410, 10 L.Ed. 997.

The division of public rights and private rights in tideland and land below the low water mark continued in this country by virtue of the...