Attorney General v. Tarr
| Decision Date | 03 January 1889 |
| Parties | ATTORNEY GENERAL ex rel. ADAMS et al. v. TARR et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 3, 1889
HEADNOTES
D.O Allen, for respondents.
W.O Underwood, for complainants.
This information, filed by the attorney general, prays relief against the defendants upon the ground that they have erected, and are proceeding to erect, certain structures upon a common and public landing place, which are a nuisance thereto, at common law, and within the meaning of Pub.St. c 54, § 1. The respondents do not seek to justify the continuance of these structures as having been maintained for 40 years. They deny that the locus upon which the structures are now erected, or being erected, is a common landing place or that they interfere with any rights of the public or the inhabitants of Gloucester therein. They assert, also, that they have a right to erect and maintain them under the province charter of 1691.
It will not be here important to determine the exact boundaries of the entire locus which the complainant claims as a landing place, and concerning which there was much evidence before the master, as the structures complained of are clearly within them, however those boundaries may be defined.
The early allotments of land were made at Cape Ann, now Gloucester, by committees appointed by the general court; it having been established in 1639 as a fishing plantation. 1 Mass.Col.Rec. 156-339. In the year 1642 it was recognized as a town by the name of Gloucester. 2 Mass.Col.Rec. Its boundaries were settled, especially that between itself and Manchester. 1 Mass.Col.Rec. 339; 2 Mass.Col.Rec. 2-4; 4 Mass.Col.Rec. pt. 2, p. 504-520. While no act similar to our present acts of incorporation was passed until after the expiration of the colonial government, as it was doubted whether that government had authority to create municipal corporations, the towns and settlements which it organized can hardly be distinguished therefrom. They were subjected, as such, to taxes and assessments, to fines for failure to perform the duties imposed upon them, allowed to choose certain officers, and invested with many, perhaps all, of the most important municipal powers, until they thus grew to be, in effect, municipal corporations. Porter v. Sullivan, 7 Gray, 441. The private property or ownership of land within the limits of the colony of Massachusetts is derived from the colonial government. The lands were first granted by the crown to the governor and company of Massachusetts Bay in New England, and by them were parcelled out to individuals, to settlements or towns, and at a later period to distinct bodies of proprietors, as tenants in common, with a view to their subsequent incorporation as a town. Com. v. Roxbury, 9 Gray, 451. Where there was no separate body of proprietors to whom the territory was granted, the town by its establishment became, as a general rule, the owner of the land within its assigned limits. "Its functions were then of a twofold nature,--to distribute the lands among the freemen for the purposes of settlement, reserving such parts as might be deemed requisite for various public uses; and to do its part as a constituent member of the new state, bearing its proportion of the public burdens, clothed with limited powers of self-government in local matters, but amenable to the commonwealth, and subject to its control and direction." West Roxbury v. Stoddard, 7 Allen, 169. It was never doubted but that their boundaries might be changed, or that, as the towns were organized for public purposes, any land or territory granted to them (which had not been granted to private persons) they might be required to devote to such uses as the legislature might thereafter by law designate. West Roxbury v. Stoddard, ubi supra; Boston v. Richardson, 13 Allen, 146-150; Act March 3, 1635-36; 1 Mass.Col.Rec. 172.
That the town of Gloucester had authority to set apart and reserve for public use the locus as to which the dispute arises, and that it did so (without at this moment considering the language of the reservation) fully appears by the report. There was no separate organization of the commoners of Gloucester. After it was recognized as a town, allotments appear to have been made by votes in town meeting. While a book of commoners' records was produced at the trial, it was in the nature of a book of possessions, showing the action of the committees of the town under the authority of these votes, but containing no record of any vote or corporate action by the commoners as such. A vote was passed at a town meeting in Gloucester, June 16, 1707, by which a committee of nine were appointed to lay out to the inhabitants certain of the common and undivided lands as they might deem for the public or private good. A tract of land was laid out for John Stone by this committee, which is found in the so-called commoners' records of the date of October 21, 1707. This laying out contains the reservation of the locus in question. After stating the boundaries of the land laid out to Stone, it adds: "And all the common land on the western side of the above said line is left and reserved free for landing places for the public use for the inhabitants of Gloucester forever, by order of the committee." As found in the commoners' records, this laying out is signed by only three of the committee, but it purports to be the act of the committee, and done by its order; and it may be that the three signatures are intended only as an authentication of the record, especially as it appears that many similar entries in the book are of this character. This is, however, of little importance, as the subsequent votes in town meeting show that the action taken was fully assented to and ratified as that of the committee. The reservation of these premises for landing places was therefore a public declaration of the town, having authority to dispose of these lands, in the absence of any special grant or appropriation by the authorities of the colony or province, that the premises were set apart "for the public use for the inhabitants of Gloucester," and reserved from being granted to any individual proprietor.
The language of this reservation is peculiar, and the suggestion is made that the words "for the public use" are qualified by those which follow; that all which it was intended to reserve was a landing place or landing places for the use of the inhabitants of Gloucester only; that therefore, assuming that the structures complained of are wrongfully maintained on the tract, no injury is done to the general public which can be remedied by any public proceeding at the suit of the attorney general, but a private injury only, to be remedied by a proceeding commenced and conducted by the city of Gloucester as a corporation, or the inhabitants thereof, both of whom are definite bodies, amply competent to maintain their own rights. It is true, as a general proposition, that it is only in case of a public wrong, where each citizen of the state is interested, that it can be redressed by a public prosecution or proceeding. Attorney General v. Salem, 103 Mass. 138. We think it does not here apply. The statute has provided that, where boundaries of tracts similar to that in question can be made certain, "no length of time less than forty years shall justify the continuance of a fence or building on a town way, private way, highway, training field, burying place, landing place, or other land appropriated for the general use or convenience of the inhabitants of the commonwealth, or of a county, town, or parish; but the same may, upon the presentment of a grand jury, be removed as a nuisance." The legislature has therefore treated an intrusion of this character upon a landing place, when laid out for the general use and convenience of the inhabitants of a particular town, as a public nuisance, to be remedied by the presentment of the grand jury. Even if a way be but a private way, and such an one a town may possess as incidental to the possession of its property, if it be appropriated to the general use and convenience of the inhabitants of a town, an intrusion upon it may be thus dealt with. Deerfield v. Railroad Co., 144 Mass. 325, 11 N.E. 105. If a public prosecution of a criminal character may be adopted for the purpose of redressing such a grievance, there can be no reason why the attorney general, representing the public, and acting at the instance of relators who are interested, may not initiate a civil proceeding similar to that adopted in the case at bar, when such is for any reason found to be more convenient and appropriate.
We are not, however, disposed to adopt so narrow a construction as that which would hold that the reservation should be construed as one for the benefit of the inhabitants of Gloucester solely, nor is such the natural interpretation of its language. It has been often said "that the language of the votes of a town is not to be too critically scanned and that, even if defectively expressed, where its meaning can be ascertained, that will be followed." It was inconsistent to say that the landing place "was for the public use," if it was for the inhabitants of Gloucester only. When the word "and" is supplied between the two phrases, its meaning is sure to be that the reservation was alike for the public and the inhabitants of Gloucester. Even if the last clause is in one aspect superfluous, as they are a portion of the general public, it indicates those for whose use it is primarily and principally intended. There is nothing inconsistent or unusual in thus specifying those for whose more immediate benefit such an appropriation is made, while the public in general also...
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