Com. v. Boston Terminal Co.
| Decision Date | 03 March 1904 |
| Citation | 185 Mass. 281,70 N.E. 125 |
| Parties | COMMONWEALTH v. BOSTON TERMINAL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert G. Dodge and Fredk, H. Nash, Asst. Atty. Gen., for petitioner.
Samuel Hoar and Woodward Hudson, for respondent.
It must now be taken as settled that the territorial limits of the commonwealth extend one marine league from its seashore at the line of extreme low water, and the title to the land within these boundaries, except as it may have been granted to others or acquired by them previously to St. 1867, p. 676 c. 275, by prescription, is vested in the state. St. 1859, p 640, c. 289; Gen. St. 1860, c. 1, § 1; Pub. St. 1882, c. 1, § 1; Dunham v. Lamphere, 3 Gray, 268-270; Wonson v. Wonson, 14 Allen, 71-82; Nichols v. Boston, 98 Mass. 39, 93 Am. Dec. 132; Com. v. Manchester, 152 Mass. 230-240, 25 N.E. 113, 9 L. R. A. 236, 23 Am. St Rep. 820; Attorney General v. Revere Copper Co., 152 Mass. 444-450, 25 N.E. 605, 9 L. R. A. 510; Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159.
In its sovereignty it represents not only the proprietary right formerly held by the King, and which at the Revolution was in the colony, and then passed by succession to the state, but it also became vested by the same event with jurisdiction and dominion over the common rights of the people at large to the free use of such tidal waters for fishing and navigation. Barker v. Bates, 13 Pick. 255-259, 23 Am. Dec. 678; Dill v. Wareham, 7 Metc. 438; Drake v. Curtis, 1 Cush, 413; Com. v. Alger, 7 Cush, 53-58; Com. v. Hilton, 174 Mass. 29, 30, 54 N.E. 362, 45 L. R. A. 475; McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248.
Whatever may have been the rights of the crown under the early common law, the King could not in recent times sell his proprietary interest in lands covered by such waters, so as to deprive his subjects of these rights. Weston v. Sampson, 8 Cush. 349, 351, 54 Am. Dec. 764; Attorney General v. Parmenter, 10 Price, 278, 412; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192, 217.
In this country the decisions of the courts of the several states as to the right of the state to devest itself of its trusteeship have not been uniform. The cases are collected and exhaustively reviewed and the principle discussed by Gray, J., in Shively v. Bowlby, 152 U.S. 1, 26, 14 S.Ct. 548, 38 L.Ed. 331. But the common law of this state, whatever the rule may have been in other jurisdictions, has not recognized this limitation as binding on the Legislature, to whom is given the control of all public rights.
Originally, and before the ordinance of 1647, the title of the colony to which the state succeeded included flats between high and low water mark. By that ordinance these flats not previously granted to individuals or appropriated to public used became the property of the owner of the adjoining upland, 'where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further.' Wonson v. Wonson, ubi supra. But the ordinance left unaffected the remainder of the public domain below the line established, and within the limit subsequently defined as a marine league therefrom.
The title or proprietary right is to the soil itself, not to the water that may cover it, either for a part or all of the time. That is, the state, having the absolute power to terminate the trust which is appurtenant to its ownership, can refuse to act longer as trustee, and convey its property, so that the grantee will hold it free from the trust. Boston v. Richardson, 105 Mass. 351, 356, 362, 363; Henry v. Newburyport, 149 Mass. 582, 585, 22 N.E. 75, 5 L. R. A. 179; Martin v. Waddell, 16 Pet. 367, 410, 10 L.Ed. 997; McCready v. Virginia, ubi supra.
The state, being vested with both rights, can by way of grant pass its interest by an act of the Legislature in lands that are below extreme low-water mark, and which, when filled by the grantee, will extinguish the right of user by the public (Res. 1856, p. 284, c. 76; St. 1860, p. 154, c. 200; Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34; Atty. Gen. v. Gardiner, 117 Mass. 492-499; Drury v. Midland Railroad, 127 Mass. 571-583, and note; Hastings v. Grimshaw, 153 Mass. 497, 27 N.E. 521, 12 L. R. A. 617), though, for the purposes of protection of the seashore, and securing to all of its citizens the right and benefit of unobstructed navigation of tidal waters, notwithstanding such grant, it may require the grantee to obtain its license or permission to wharf or fill before such waters can be displaced by any structure or filling. St. 1866, p. 107, c. 149; Pub. St. 1882, c. 19, § 8; Atty. Gen. v. Boston & Lowell Railroad Company, 118 Mass. 345-348; Atty. Gen. v. City of Cambridge, 119 Mass. 519. See, also, in this connection, Lake Shore & Michigan Southern Railway Company v. Ohio, 165 U.S. 365, 17 S.Ct. 357, 41 L.Ed. 747; Cummings v. Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525; Montgomery v. Portland, 190 U.S. 89, 23 S.Ct. 735, 47 L.Ed. 965.
The commonwealth, then, must be held to have had a right of property in, and title to, the several parcels of land described in the petition, and all situated below the line of extreme low water. By the demurrer the respondent admits that it has taken this land by force of, and in accordance with, the provisions of St. 1896, p. 520, c. 516.
The Boston Terminal Company was organized under this act to build and maintain a union passenger station in the southerly part of the city of Boston, and to provide and operate adequate terminal facilities for the various railroad companies named therein, which, upon completion of the station, are required to occupy and use it. Its capital stock, amounting to $500,000, in the proportion of one-fifth to each, could be subscribed for and held by these various corporations, and 'all said capital stock shall be paid in in cash by said railroad companies before the said corporation takes any land under this act,' so that in this way the money estimated to be necessary to pay for the land to be taken for the site of the proposed station and its approaches would be paid in before the work was begun. The immediate government direction, and control of its affairs was vested in a board of five trustees, one of whom was to be appointed by each of the five railroad companies. Instead of the railroad companies themselves uniting to build the station, the history of the statute indicates that it way apparently deemed best that the several persons named as incorporators should organize a corporation for this purpose. It was a plan undertaken in this form by those connected with or interested in the railroads to be benefited, and it is too plain for discussion that, standing by itself, it would be financially unprofitable, and must fail of success, and, though possessing a distinct and independent corporate existence, the respondent must be treated as a company created and organized as an auxiliary to them. Frazier v. New York, New Haven & Hartford Railroad Co., 180 Mass. 427, 62 N.E. 731. There is nothing in the act by which it was compelled to begin, go forward, and complete this work; but it may fairly be inferred and conceded that, if once commenced, then the plan was to be carried out according to the specified details, and to this extent it may be said to be mandatory. Bradford v. Old Colony R. Co., 181 Mass. 33, 35, 63 N.E. 6. But not rigidly so, for the language used as to the taking of land to change the streets is permissive. A certain amount of fiexibility, at least, was left, so that, if the whole territory named was not necessary, or if the combination of the parts, to make up the whole, could be better adjusted by changes, such changes were permissible. If it be granted that the taking of the land for Dorchester avenue and Summer street, and for the station itself, must have necessarily included the lands described in the petition, yet it was open to the respondent, if it did not want to pay for what it must take, either to abandon its project, or petition for a change in the act. Under these conditions, it was within the power of the Legislature to determine in the first instance if the enterprise for whose benefit private property was to be appropriated was of such a character that the purpose of the respondent constituted a public use of the land, and the state might permit a part of its domain to be taken for such a use in fee, or a less interest therein...
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