Providence & Worcester R. Co. v. Pine

• Decision Date: 23 April 1999
• Docket Number: No. 97-107-Appeal.,97-107-Appeal.
• Citation: 729 A.2d 202
• Parties: PROVIDENCE & WORCESTER RAILROAD CO. v. Jeffrey PINE in His Capacity as the Attorney General for the State of Rhode Island et all.
• Court: Rhode Island Supreme Court

729 A.2d 202

PROVIDENCE & WORCESTER RAILROAD CO. v. Jeffrey PINE in His Capacity as the Attorney General for the State of Rhode Island et all.

No. 97-107-Appeal.

Supreme Court of Rhode Island.

April 23, 1999.

John Tarantino, Kristen W. Ulbrich, Providence, for Plaintiff.

John Boehnert, Deming E. Sherman, Providence, Michael Malamut, Boston, MA, Michael L. Rubin, Brian A. Goldman, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

OPINION

BOURCIER, Justice.

In this appeal we review a summary judgment entered in favor of the plaintiff on its petition to quiet title to some 32.9 acres of filled tide-flowed land within an existing harbor line in the Providence River, south of the Wilkesbarre Pier in the city of East Providence.¹

The plaintiff is the Providence and Worcester Railroad Co. (P & W).² The defendants are the State of Rhode Island by its Attorney General and the Coastal Resources Management Council (CRMC or collectively the defendants). The final judgment entered in the Superior Court declared P & W to have fee simple title in the 32.9 acres of filled tide-flowed land.

P & W is the upland owner of the property situated along the original shoreline on the Providence River in East Providence that immediately abuts the 32.9 acre parcel of the tide-flowed land concerned in this appeal.

On January 28, 1974, P & W filed an application with CRMC seeking permission or an assent, from CRMC, to construct a quay by filling in the 32.9 acres of tideflowed land up to the existing harbor line.³ Hearings on the application took place on October 15, 22, 29 and November 7, 1974. On April 2, 1975, CRMC granted the P & W application "in its entirety." It found as fact that there did not presently exist any CRMC management plan or program for the area in which the quay was to be constructed; that P & W's proposed dredging and filling of the tide-flowed land and construction of its quay to permit off loading between ships and railroad cars would not interfere with navigation in the Providence River⁴ and would not create any environmental hazard; and that it would bring about desirable economic activity in an area "which is presently in a state of deterioration and decay." CRMC additionally found that P & W's construction of the quay would not be "inconsistent with the total policies of the State's land use plan. The port expansion of the Providence Port area could further the State's economic development objectives and would be an appropriate use of the coastal location."

Following CRMC's April 2, 1975 decision granting P & W's application to construct the quay, Union Oil Company of California (Union), one of the objectors to P & W's applications, filed an appeal in the Superior Court challenging the propriety of the CRMC decision.⁵ That appeal was later dismissed by Union on June 30, 1976, pursuant to an agreement between P & W and Union, whereby concerns regarding oil pipeline easements and rights-of-way owned by Union and Getty Oil Company were resolved. On that same day, June 30, 1976, CRMC issued "Assent No. 53-Providence River" to P & W. That assent required that "[a]ll work being permitted must be complete within ten (10) years * * *." In addition, the assent provided for certain stipulations, noted on its reverse side that read in part:

"B. This Assent is granted with the specific proviso that the construction authorized therein will be maintained in good condition by the owner thereof, his heirs, successors, or assigns for a period of fifty (50) years from the date hereof, after which time this permission shall terminate necessitating either complete removal, or a new application.

"C. In accordance with a decision of the Coastal Resources Management Council on October 9, 1973, this Assent is granted with the proviso that it is subject to the imposition of a usage fee to be established by the Coastal Resources Management Council."

P & W, pursuant to the CRMC June 30 assent, proceeded to make application to obtain all required federal permits for its intended construction project. All such necessary permits were obtained. P & W then commenced the dredging required along the proposed 3,760 linear feet of its steel sheet piling bulkhead and also placed the required suitable fill behind the bulkhead to ensure its stability. Because of construction delays, however, it became necessary for P & W to request from CRMC an extension of time within which to complete the work required under the original CRMC assent. By May of 1986, P & W had expended some five million dollars on its proposed but yet uncompleted project. On May 30, 1986, P & W filed an application with CRMC requesting a ten-year extension within which to complete the work called for under the June 30, 1976 assent. P & W's application was approved and on June 13, 1988, CRMC granted a ten-year extension for completion of the project.

On April 25, 1995, this Court issued its opinion in Greater Providence Chamber of Commerce v. State of Rhode Island, 657 A.2d 1038 (R.I.1995) (Chamber of Commerce). In that opinion we acknowledged that our earlier opinion in Hall v. Nascimento, 594 A.2d 874 (R.I.1991) had caused concern with regard to ownership and title to land created by the placing of fill below the mean high-tide mark by abutting upland property owners. We noted our conclusion in Hall that the public-trust doctrine in Rhode Island, as well as in other states, decreed that lands filled below the mean high-water mark by upland property owners could not be appropriated by those private individuals for purely private benefit. Chamber of Commerce, 657 A.2d at 1042. "Following our holding in Hall, some state agencies took the position that the State of Rhode Island holds title to all filled tidal lands in trust for the public under the public-trust doctrine." Id. at 1043.

In Chamber of Commerce, we reaffirmed what had been said earlier in Hall, but limited Hall's application to the particular facts present in that case. We then, "Din an effort to resolve" some of the title concerns that had emanated from Hall, adopted a "two-part test" to be used in determining ownership rights in filled tidal water lands, and cautioned that it should be employed "on a case-by-case basis according to the facts in each situation." Chamber of Commerce, 657 A.2d at 1044. We explained the two part test as:

"A littoral owner who fills along his or her shore line, whether to a harbor line or otherwise, with the acquiescence or the express or implied approval of the state and improves upon the land in justifiable reliance on the approval, would be able to establish title to that land that is free and clear. The littoral owner may pursue a course of action seeking to convey the deed to that property to himself or herself and become owner in fee-simple absolute provided that the littoral owner has not created any interference with the public-trust rights of fishery, commerce, and navigation. Once the littoral owner acquires title to the land in this manner, the state cannot reacquire it on the strength of the public-trust doctrine alone. The state can, however, at any time, place restrictions on the filling in of shoreline provided it does so before a landowner has changed position in reliance on government permission." Id.

At the time that our opinion in Chamber of Commerce was issued, P & W was in fact one of those littoral owners of land that had been involved with title concerns to filled tide-flowed lands. In the course of its expending millions of dollars to complete the East Providence quay project, it was experiencing project financing difficulties because the various title companies involved in the financing transactions were also concerned with the public-trust holding announced in Hall. P & W saw in the Chamber of Commerce holding, however, a ray of hope upon which to resolve its title and project financing dilemma. Within seven months of the issuance of our opinion in Chamber of Commerce, P & W informed the state, and its prospective title insurers, that it was taking the position that it had dredged and filled some 32.9 acres of tide-flowed land with both the express and implied approval of the state, and thus, it asserted, that it came within the designation of those littoral owners of filled tide-flowed lands described in Chamber of Commerce who were entitled as littoral property owners to claim fee simple absolute title to the 32.9 acres that it had filled.

Following the procedure set out in the Chamber of Commerce case, P & W, on February 16, 1996, executed and delivered to itself a quitclaim or bargain and sale deed to the filled tide-flowed land and recorded that deed in the land evidence records of the City of East Providence on February 20, 1996. On April 25, 1996, P & W then filed a civil action complaint in the Superior Court in which it sought a declaration and affirmance of its title to the 32.9 acres of filled tide-flowed land described in the February 16, 1996 bargain and sale or quitclaim deed. On January 21, 1997, a Superior Court justice granted P & W's motion for summary judgment; denied the state's motion for summary judgment, and later on January 31, 1997 entered judgment establishing fee title in P & W to the 32.9 acres of filled tide-flowed land described in the February 16 bargain and sale deed. The states appeal is now before us.

I P & W's Express and Implied Approvals

P & W is the progeny of the Providence and Worcester Railroad Company originally created pursuant to a special legislative charter granted by the Rhode Island General Assembly at its May session in 1844. 1844 R.I. Acts & Resolves p. 34 That charter authorized the Providence and Worcester Railroad Company to take and to own lands necessary to lay out and to locate its intended railroad lines.⁶

On March 9, 1866, the General Assembly enacted an Act establishing a harbor line in the harbor in the town of East...