Commissioner of Public Works v. Cities Service Oil Co.

• Citation: 32 N.E.2d 277,308 Mass. 349
• Parties: COMMISSIONERS OF PUBLIC WORKS v. CITIES SERVICE OIL COMPANY.
• Decision Date: 25 February 1941
• Court: United States State Supreme Judicial Court of Massachusetts

308 Mass. 349

32 N.E.2d 277

COMMISSIONERS OF PUBLIC WORKS v. CITIES SERVICE OIL COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1941

October 11, 1940.

Present: FIELD, C.

J., DONAHUE, DOLAN & COX, JJ.

License. Department of Public Works.

Tidewaters. Harbors. Words, "Terms.

" The department of public works, in granting a license under R. L c. 96,

Sections 17, 19 for the erection of structures upon tidewater property owned by the Commonwealth, no compensation therefor being required or paid under Section 24, might validly make the license subject to the condition in substance that the structures "are for temporary use only and shall be removed . . . upon notice" by the department, notwithstanding that the structures erected and used by the licensee were valuable and erected in good faith within Section 21.

BILL IN EQUITY, filed in the Superior Court on September 29, 1938. The defendant appealed from a final decree entered by order of Brogna, J.

F. H. Stewart, (A.

F. Ray & F.

X. Daly with him,) for the defendant.

E. O. Proctor, Assistant Attorney General, for the plaintiffs.

COX, J. This is a bill in equity in which the plaintiffs ask that the defendant be ordered to remove certain structures erected by it or its predecessors upon land of the Commonwealth and to quit and make no further use of the premises. In effect, what is sought is the revocation of a license issued by the department of public works, division of waterways and public lands (see St. 1919, c. 350, Sections 111, 113; G. L. [Ter Ed.] c. 91), to a predecessor of the defendant, under which the structures were erected. The case was tried upon a statement of agreed facts, and documentary evidence relating thereto. The plaintiffs are the commissioner and associate commissioners of public works of the Commonwealth in control and supervision of the department of public works. (G. L. [Ter. Ed.] c. 16, Section 2.) The defendant is the owner of a parcel of land that adjoins the premises in question, title to which was acquired from the Commonwealth by mesne conveyances.

In 1917, a predecessor of the department of public works, by virtue of statutory authority (St. 1911, c. 748, as amended), took, by eminent domain, certain lands and flats in Boston Harbor, including the parcel now owned by the defendant which was conveyed in 1919 to one of its predecessors in title. The taking by eminent domain was "for the purpose of constructing, or securing the constructing or utilizing of, piers, and, in connection therewith, highways, waterways, railroad connections, storage yards and sites for warehouses and industrial establishments."

On June 7, 1920, the defendant's predecessor, to whom the parcel hereinbefore referred to had been conveyed, petitioned the department of public works, setting forth that it desired "to build dolphins and mooring piles for a temporary berth in and over the tide-waters of Haywards Creek on Weymouth Fore River in the Town of Braintree," and asking that a license be granted to build and maintain the structure in accordance with the plans filed with the petition, "subject to the provisions of Revised Laws, c. 96, and St. 1911, c. 748, and of all laws which were or might be in force applicable thereto." On June 21, 1920, the petitioner was given license No. 51, by the terms of which it was authorized and licensed, "subject to the provisions of . . . [R. L. c. 96], chapter 748 of the Acts of 1911, and of all laws which are or may be in force applicable thereto, to build a temporary pile pier and dolphins in Haywards Creek . . . for the purpose of providing a berth for vessels, in conformity with the accompanying plan . . . ." The area allotted for the temporary pier is defined in the license and shown upon the plan. It is further provided that the "license is granted with the consent of the Commonwealth of Massachusetts as owner of the flats on which the larger part of said pile pier and said dolphins are to be constructed, and subject to the laws of the United States. It is a condition of this license that the said pile pier and dolphins and mooring pile are for temporary use only and shall be removed to the satisfaction of this Department upon notice in writing." The licensee erected the pier and dolphins "in good faith in accordance with License #51 and the plan attached to it . . . and large sums of money were expended thereon and in connection therewith. They were constructed by the licensee with the upland approach on its own land. The pier was built partly upon the land of the Commonwealth and partly upon land of the . . . [licensee] . . . As contemplated by License #51, the `larger part' was built upon the land of the Commonwealth." The pier has been allowed to remain as built since 1921 and is in substantially the same condition as when first erected at a cost of approximately $10,000, and "the pier and structures were when built and still remain useful and valuable structures."

The Commonwealth has never received any revenue by way of rent or compensation from the defendant or its predecessors in title for the use of the wharf or pier under said license. The defendant and its predecessors in title leased no land from the Commonwealth, and, under the provisions of R. L. c. 96, Section 24 (see G. L. [Ter. Ed.] c. 91, Section 22), the Governor and Council did not require that the original licensee should pay any compensation for the rights given, and none, in fact, was paid.

On December 31, 1936, in consequence of a vote of the department of public works, the defendant was notified to remove the structures from tide water, but it did not do so. On July 13, 1938, in consequence of another vote, the defendant was notified to remove from the flats of the Commonwealth at Haywards Creek the structures built under said license No. 51, "in accordance with the terms and conditions thereof." The defendant did not comply with this notice, and the structure is now held and maintained by it. The defendant and its predecessors in title have used the structure continuously "as a means of access and egress to and from the navigable waters of Haywards Creek and Weymouth Fore River."

"If the . . . [defendant] has riparian rights at the locus of the wharf and if such rights embrace the privileges hereinafter stated in this paragraph or any of them, and is denied access to the navigable waters in Haywards Creek from its land, such riparian rights will be substantially injured by having its main artery of approach to and contact with vessels cut off on the northerly water front; by losing the right of swift and convenient unloading of tankers by pipe lines from the northerly water front, and by losing the right to have cargoes delivered at Haywards Creek immediately adjacent to its receiving tanks. The pier built and maintained under License #51 is not an obstruction to navigation."

The findings of the trial judge, the opinion of this court, the rescript and final decree in the case of Scullin v. Cities Service Oil Co. 304 Mass. 75, are referred to, and may "be given such force and effect as they by law are entitled to have."

In the case at bar the trial judge found the facts as stated, and ruled that the license was revocable and that it had been revoked. The defendant appealed from a final decree assented to as to form, adjudging that the license is revocable and has been revoked, and in effect, ordering that the defendant quit so much of the premises of the Commonwealth as are occupied by the structures in question and remove them within a stated time if it desires to do so.

Prior to St. 1869, c. 432, legislative enactments conferring authority to erect and maintain structures in Boston Harbor as far as the harbor line established in 1840 were held to operate as grants and not merely as revocable licenses. See St. 1841, c. 35, Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 87; St. 1851, c. 26, Bradford v. McQuesten, 182 Mass. 80, 81, 82; St. 1855, c. 481, Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 483 , 489. In the Bradford case it was said, at page 82: "Hundreds of similar acts [such as St. 1851, c. 26] had been passed before the St. of 1869, c. 432, was enacted declaring that any authority thereafter given to build on or enclose 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. . . . 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 built on piles which shall be certain distances apart. It would seem plain that the Commonwealth intended to part with all its rights except so far as contained in the conditions on which the grant was made."

St. 1869, c.

432, provided that all authority or license that had been granted during that session of the Legislature, or that might be thereafter granted by the Commonwealth to any person or corporation to build any structure upon ground over which the tide ebbs and flows, or to fill up or inclose the same, whether such ground be above or below low water mark, or within or outside of one hundred rods from high water mark, or whether it be private property or the property of the Commonwealth, should be subject to the following conditions, whether they were expressed in the act of resolve granting the same or not, namely: such license or authority should be revocable at...