In re Opinion of the Justices

• Decision Date: 17 April 1911
• Citation: 94 N.E. 849,208 Mass. 603
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 603

94 N.E. 849

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 17, 1911.

Opinion of the Supreme Judicial Court in response to questions presented by the House of Representatives. Questions answered.

The following are the questions presented:

‘Ordered, that the opinion of the Justices of the Supreme Judicial Court be required upon the following questions:

‘First. Is it within the constitutional power of the Legislature to permit the city of Boston, or any city or town of the commonwealth, to erect a bridge or structure across a public street or highway connecting premises owned or occupied for municipal purposes on opposite sides of the public street or highway?

‘Second. Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town within this commonwealth the power to grant permits or privileges to private individuals to erect structures which will bridge the public streets connecting premises owned on both sides of the street?

‘Third. Is it within the constitutional power of the Legislature to enact a law conferring upon a city or town in this commonwealth the power to grant permits or licenses to bridge public streets connecting premises on opposite sides which will be revocable at any time at the action of the city or town government, and for which a rent will be charged payable to the city or town in which the permit or license may be granted?

‘Fourth. Is it any restriction of the constitutional right of the owner of premises abutting on a public street or highway in a city or town of this commonwealth to have the light and air in the public street obstructed by the erection of a structure connecting premises on the opposite sides of the street, provided there is provision made for compensation to persons suffering any damage thereby?

‘Fifth. Is the right of an owner of property abutting on the public street or hignway where he owns the fee to the middle of the street or way limited solely to his right upon and over the surface of the street, or does it include also rights to light and air above the surface of the street, and the right to have the street for its entire length open from the street surface up to the sky?

‘Sixth. What rights, if any, do the abutting owners of public streets or ways enjoy other than the rights general to the public?’

To the Honorable House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, respectfully answer the question propounded by the order of April 4, 1911, a copy of which is hereto annexed, as follows:

[1] When a public street or highway is laid out and constructed under the general laws of this commonwealth, the public acquires an easement in the land, which includes a right to occupy it for every kind of travel and communication of persons, and every movement of property, that is reasonable and proper in the use of a public street. Sears v. Crocker, 184 Mass. 586, 69 N. E. 327,100 Am. St. Rep. 577. Subject to this paramount right, the owner of the fee retains his ownership of every valuable interest in the land, and he may use it in any way that does not interfere with the right of the public to the enjoyment of its easement.

[2] The Legislature represents the public, and at any time it may enlarge or limit public rights thus acquired, having due regard to private rights of property secured by the Constitution to all the people....