Boston Waterfront Development Corp. v. Com.

• Decision Date: 03 August 1979
• Citation: 393 N.E.2d 356,378 Mass. 629
• Parties: BOSTON WATERFRONT DEVELOPMENT CORPORATION v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 356

393 N.E.2d 356

378 Mass. 629

BOSTON WATERFRONT DEVELOPMENT CORPORATION v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1978.

Decided Aug. 3, 1979.

Arnold P. Messing, Boston, for the Boston Waterfront development corp.

Howard R. Palmer, Asst. Atty. Gen., Dean P. Nicastro, Asst. Atty. Gen., for the Commonwealth.

Loring P. Jordan, Jr., and William S. Rosenberg, Boston, for The Massachusetts Conveyancers Ass'n & another, amici curiae, submitted a brief.

Stephen H. Oleskey and Timothy H. Gailey, Boston, amici curiae, submitted a brief.

Before QUIRICO, BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

This case arises from a dispute between the Boston Waterfront Development Corporation (BWDC) and the Commonwealth over the ownership of a small parcel of land at the end of a wharf extending into Boston Harbor. To resolve this dispute we must consider in historical perspective the allocation of rights among private parties, the Commonwealth, and the public to use, own and enjoy one of the Commonwealth's most precious natural resources, its shore.

In 1964, the Commercial and Lewis Wharf Corporation, predecessor to BWDC, brought a petition pursuant to G.L. c. 185, § 1, to register title to a certain parcel of waterfront land under Lewis Wharf in the city of Boston, consisting of areas A, B, C and F on an accompanying plan, a copy of which is included as an appendix to this opinion. After prolonged negotiations, BWDC, as substitute petitioner, and the Commonwealth stipulated that BWDC was the owner in fee simple of area A, that is, the land shoreward of the historic low water mark; ¹ and that BWDC would withdraw without prejudice its petition to register areas C and F. The only area remaining in dispute, area B, is the area between the low water mark and the currently existing sea wall. This area is covered by the seaward end of a wharf constructed over filled land, partly occupied by the corner of an ancient granite building now renovated into modern shops, offices, restaurants, and condominiums. The parties agreed that the only issue to be decided by the Land Court was whether "the Petitioner obtained fee simple title to the soil beneath the fill" as a consequence of certain acts of the Legislature in the early nineteenth century known collectively as the "Lewis Wharf statutes." St.1832, c. 102; St.1834, c. 115; St.1835, c. 76; and St.1840, c. 18. The Land Court ruled that BWDC's predecessor in title had obtained fee simple title, and entered a decree registering the land.

The Commonwealth appealed to the Appeals Court, the parties submitting an agreed statement of the case pursuant to Mass.R.A.P. 8(d), as amended, --- Mass. ---- (1979). Once again the issue framed was whether the petitioner had obtained fee simple title to the soil beneath the fill of area B as a result of the "Lewis Wharf statutes." The Appeals Court, in an opinion written by Goodman, J., agreed with the Land Court that BWDC's predecessors had been granted fee simple title to the disputed land, but added that it was held "subject to a condition subsequent that it be used in accordance with the purpose expressed in those statutes." Boston Waterfront Dev. Corp. v. Commonwealth, --- Mass.App. ----, ---- ^A, 374 N.E.2d 598, 606 (1978). We agree with the Appeals Court's decision.

Throughout history, the shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property. At Roman law, all citizens held and had access to the seashore as a resource in common; in the words of Justinian, "they (the shores) cannot be said to belong to anyone as private property." Institutes of Justinian, 2.1.1-2.1.6 cited in Note, The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L.J. 762, 763 (1970), see David A. Rice, Final Report: A Study of the Law Pertaining to the Tidelands of Massachusetts, 1971 House No. 4932, at 17-18. With the collapse of the Roman Empire and its ordered system of law, public ownership of tidal areas gave way to a chaos of private fiefdoms. Under the English feudal law which emerged, ownership of the shore was claimed by the Crown, which in turn had the power to grant out portions of its domain to the exclusive ownership and use of the private subjects who in fact possessed it. See Fraser, Title to the Soil under Public Waters a Question of Fact, 2 Minn.L.Rev. 313, 315-322 (1918).

The conflict between king and citizens that preceded the Magna Charta concerned, among other things, opposition to this absolute power of the Crown to grant private rights in the shore, particularly as these rights interfered with the free navigation which was so essential to the rising commercial classes. Note, The Public Trust in Tidal Areas, Supra at 765. After Magna Charta, the competing interests were accommodated by a legal theory that divided the Crown's rights to shore land below high water mark 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. Shively v. Bowlby, 152 U.S. 1, 11-14, 14 S.Ct. 548, 38 L.Ed. 331 (1894). Commonwealth v. Alger, 7 Cush. 53, 90 (1851). Commonwealth v. Roxbury, 9 Gray 451, 482-484 (1857). This latter interest the Crown could not convey into private hands, since it was "held as a public trust for all subjects and their free exercise of the common rights of navigation and fishery . . . ." Rice, Supra at 18. The jus publicum was eventually understood to be under the control of Parliament, while the jus privatum belonged to the king. Since neither party held all the rights to the shoreland, neither could convey it with free and clear title into private hands. See Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410, 10 L.Ed. 997 (1842). These arrangements restored to the public some of the rights to use of shoreland which had been guaranteed by public ownership in Roman times.

These legal concepts are more than mere historical curiosities, because they were very much in the minds of the nineteenth century legislators and judges who oversaw the development of Boston Harbor. When we attempt to interpret the significance of the legislative grants of rights in the Boston shoreline contained in the "Lewis Wharf statutes," we must remember that they were written by men who were familiar with the English common law history of the shore. The Supreme Judicial Court frequently referred in its opinions to the notion that the Crown's ownership of shoreland, from which all Massachusetts titles historically derived, was "in trust, for public uses." Commonwealth v. Alger, 7 Cush. 53, 65, 90 (1851). Commonwealth v. Roxbury, 9 Gray 451, 482-483 (1857). Weston v. Sampson, 8 Cush. 347, 352 (1851). Barker v. Bates, 13 Pick. 255, 259 (1832). Legislative awareness of this historical background is evident, for example, in an 1850 report of the Senate Joint Committee on Mercantile Affairs and Insurance concerning the flats in Boston Harbor, in which the committee stated: "By the law of all civilized Europe, before the feudal system obtained in England, there was no such thing as property in tide waters. Tide waters were res omnium, that is, they were for the common use, like air and light. . . . In England, the fiction of a fee in the Crown, and the control of the trust in Parliament, we understand to have been a mode, suited to the times and the genius of the feudal law, for insuring to the State the control over tide-waters. The Commonwealth succeeds to this right of control." 1850 Sen.Doc. No. 119, at 2.

The first English settlers of what is now Massachusetts obtained their titles to land under grants from James the First and Charles the First which passed to the organized companies chartered to settle Plymouth and Massachusetts Bay Colonies "absolute property in the land within the limits of the charter, the power of making laws for the government of the colony, and full dominion over all the ports, rivers, creeks, and havens, &c. in as full and ample a manner as they were before held by the crown of England." Commonwealth v. Charlestown, 1 Pick. 180, 182 (1822). The jus privatum/jus publicum distinction in regard to shoreland property was carried over to the new world, so that the company's ownership was understood to consist of a jus privatum which could be "parcelled out to corporations and individuals . . . as private property" and a jus publicum "in trust for public use of all those who should become inhabitants of said territory . . . ." Commonwealth v. Roxbury, 9 Gray 451, 483-484 (1857). ²

Land ownership in the colony was governed by the English common law, "which our ancestors brought with them, claiming it as their birthright." Storer v. Freeman, 6 Mass. 435, 437 (1810). Owners of land bounded by the sea or salt water "could not, by such boundary, hold any land below the ordinary low water mark; for all the land below belonged of common right to the king." Id. at 437. Certain public rights to the use of such land were guaranteed by the 1641 colonial "Body of Libertyes" which provided that "Every Inhabitant who is an householder shall have free fishing and fowling in any great ponds, bayes, Coves and Rivers . . . unless the freemen of the same Town or the General Court have otherwise appropriated them. . . ." The Book of the General Lawes and Libertyes at 50 (1649).

As to the land between high and low water marks, however, commonly referred to as the flats, the Massachusetts colonial law and practice deviated from the English law. Chief Justice Parsons explained this legal development very artfully in his opinion in Storer v. Freeman, Supra at 437: "When our ancestors emigrated to this country, their first settlements were on harbors or arms of the sea; and commerce was among the earliest...