Bradford v. Mcquestion

Decision Date02 September 1902
Citation64 N.E. 688,182 Mass. 80
PartiesBRADFORD, Treasurer [*] v. Mcquestion
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Arthur W. De Goosh and Frederic B. Greenhalge, Asst. Atty. Gen., for appellant.

A. B Coffin and Nason & Proctor, for appellee.



This is an action of contract to recover of the defendant the amount assessed upon him by the board of harbor and land commissioners under Pub. St. c. 19, § 14, as compensation for the displacement of tide water caused by the extension of his wharf at East Boston. The case was heard upon agreed facts, and judgment was ordered in the superior court for the defendant. The plaintiff thereupon appealed to this court.

The displacement for which compensation is sought was caused by the filling by the defendant of a portion of the land and flats formerly belonging to one Donald McKay, and which have passed by mesne conveyances to the defendant, the deed to him bearing date March 31, 1897. By St. 1851, c. 26, McKay was authorized 'to extend and maintain his wharf into the harbor channel as far as the line established by the act entitled 'An act concerning the harbor of Boston' passed on the seventeenth day of March in the year one thousand eight hundred and forty.' Acts 1840, c. 35. The harbor line here referred to was changed by St. 1882, c. 48. As now established, the harbor line is within that fixed by the statute of 1840. But, as we understand the agreed facts and the plans, the defendant's wharf does not extend beyond the line established by the statute of 1882. The filling for which compensation is sought has been done by the defendant since June, 1897. Before the deed to the defendant there had been more or less filling by the plaintiff's predecessors in title, and pile wharves had been built. The property does not seem during this time to have been developed according to any plan, and the filling, although considerable in amount, appears to have been of a desultory nature, and to have consisted largely of refuse matter dumped there by the city of Boston and others by the permission of the owners.

We do not understand the plaintiff to contend that whatever rights McKay had under the statute of 1851 have not passed to the defendant, and the first question is whether that statute operated as a grant or was only a revocable license. It is plain, it seems to us, that it operated as a legislative grant, subject to the terms and conditions expressed in it. Fitchburg R. Co. v. Boston & M. R. Co., 3 Cush. 58 87. No particular words are necessary to constitute a legislative grant, and the commonwealth could devest itself of any right or title in or to the flats belonging to McKay as well by an act of the legislature as by a more formal instrument. Mayo v. Libby, 12 Mass. 339, 344; Hastings v. Grimshaw, 153 Mass. 497, 27 N.E. 521, 12 L. R. A. 617; Proprietors of Enfield v. Permit, 5 N. H. 280, 20 Am. Dec. 580. Hundreds of similar acts had been passed before St. 1869, c. 432, was enacted declaring that any authority thereafter given to build on or inclose ground in tide waters should be construed as a revocable license, and it has been the common understanding, we think, that they operated as grants, and wharves have been built and improvements made on that footing. The acts were passed to promote trade and commerce by enabling and encouraging the owners of flats to build wharves, warehouses, and other structures thereon for the use and convenience of those having occasion to resort to the ports and harbors where the flats were situated, and requiring the facilities afforded by such structures. They should be construed so as best to promote the object which the legislature had in view, if that can be done without doing violence to settled rules of construction. In the present case there is nothing in the circumstances disclosed tending to show that the act was not intended to operate, and should not be construed as operating, as a grant. The interests of the commonwealth in navigation are carefully protected by limiting the extension to the harbor line, and by requiring that below low water the wharf shall be...

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