Attorney Gen. v. Vineyard Grove Co.

• Decision Date: 22 May 1902
• Citation: 64 N.E. 75,181 Mass. 507
• Parties: ATTORNEY GENERAL v. VINEYARD GROVE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 507

64 N.E. 75

ATTORNEY GENERAL

v.VINEYARD GROVE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1902.

Case reserved from supreme judicial court, Suffolk county; James M. Morton, Judge.

Proceedings by the attorney general against the Vineyard Grove Company to remove an encroachment on public land. Decree for plaintiff.

William M. Butler and Guy W. Cox, for plaintiff.

Wm. H. Powers and William A. Morse, for defendant.

HOLMES, C. J.

This is an information for the purpose of removing a structure alleged to be an encroachment upon land dedicated to the public. The structure complained of is a building which rises above the edge of a bluff facing the sea in Cottage City, Martha's Vineyard, and is built upon land found by the master to have been dedicated to the public by the defendant's predecessor in title. It also interferes with the view from the bluff which was embraced in the dedication. The master reports that there should be a decree for the removal of so much of the building as rises above the level of the edge of the bluff. We will deal with the defences in the order in which they were presented by the defendant.

In the first place it is said that the defendant is authorized to build such buildings as it deems advisable on the land in question by its charter and a later act. St. 1870, c. 110, § 2; St. 1896, c. 299. But these acts have no such purport. They define the powers of the corporation within the limits of its title, but they do not confer a title. They no more purport to renounce rights of the public than to exercise the power of eminent domain over private rights. So as to a license from the Harbor and Land Commissioners granted in pursuance of these statutes. Indeed, this license provides in terms that nothing in it ‘shall be so construed as to impair the legal rights of any person.’ A different construction would not be given to these statutes unless it was plainly necessary, whereas here the more limited meaning is plain. Old Colony R. Co. v. Framingham Water Co., 153 Mass. 561, 563, 27 N. E. 662,13 L. R. A. 332. It is unnecessary to consider whether it would have been within the power of the Legislature thus to give to a private person for no public use the rights acquired by dedication. City of New Orleans v. U. S., 10 Pet. 662, 720, 723, 9 L. Ed. 573;Railroad Co. v. Schurmeir, 7 Wall. 272, 289 290,19 L. Ed. 74;Davenport v. Buffington, 38 C. C. A. 453, 97 Fed. 234, 239, 46 L. R. A. 377.

Next it is said that the master should have ruled that there could be no dedication for the purpose of a view, as against the plaintiff's contention that one of the purposes of the dedication was to keep the view of the sea unobstructed. The analogy relied on is the rule that a right of prospect cannot be acquired by prescription. The question does not appear to be open in this broad form, but it may be answered. The right to have land unbuilt upon within reasonable limits, for purposes of light, air and prospect can be acquired by grant (Ladd v. City of Boston, 151 Mass. 585, 24 N. E. 858,21 Am. St. Rep. 481), and dedication stands on the principles of grant, not on those of prescription. If it ever is consistent with public policy to have the individual appropriation of land thus restricted there can be few objects which offer such strong reasons for encouraging the restriction as does that of keeping open the line of the shore and the view of the sea for all. See Higginson v. Inhabitants of Nahant, 11 Allen, 530;Attorney General v. Abbott, 154 Mass. 323, 328, 28 N. E. 346,13 L. R. A. 251.

The defendant founds an argument upon the chain of deeds under which it holds. We assume that the defendant owns the fee of the land, but the fact that it does so is consistent with the public right. The line of deeds taken by...