Joseph v. Arno, SJC-10559.
| Decision Date | 02 August 2010 |
| Docket Number | SJC-10559. |
| Citation | 931 N.E.2d 1,457 Mass. 434 |
| Parties | Joseph V. ARNO v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Seth Schofield, Assistant Attorney General, for the Commonwealth.
Gordon M. Orloff (Gareth I. Orsmond with him), Boston, for the plaintiff.
John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.
Diane C. Tillotson & Paula M. Devereaux, Boston, for Real Estate Bar Association for Massachusetts & another, amici curiae, submitted a brief.
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
This case requires us to consider the interplay between the system of land registration, G.L. c. 185, §§ 26-56 (Registration Act), and the public trust doctrine. In particular, we confront for the first time whether the registration of a parcel of land may extinguish the public's otherwise existing rights therein. We conclude that it cannot.
The land in question borders Nantucket Harbor. It originally was registered as two adjoining lots in 1922. The plaintiff, Joseph V. Arno, took title to both lots (combined, Arno's parcel) in 1962. In 2002, Arno applied for and received a license pursuant to G.L. c. 91 (Waterways Act) to construct a mixed-use development on the parcel. Unhappy with the conditions attached to his license by the Department of Environmental Protection (department), he filed a complaint against the Commonwealth in the Land Court challenging its power to require him to obtain a license in the first instance. The lawsuit was premised on the theory that the Commonwealth's and the public's rights in the property-on which the regulatory authority of the Waterways Act is founded-were relinquished when the parcel was registered in 1922 because those rights were not reflected in the registration certificate and because the Attorney General expressly waived any such rights in his answer filed in the 1922 registration proceedings.
At the conclusion of long and complicated proceedings, which we discuss at length, infra, Arno secured two judgments: first, that he possessed his parcel in fee simple and subject to no ongoing rights of the Commonwealth or the public; and second, that, as a consequence, the licensing requirements of the Waterways Act did not apply to his proposed construction project. Four years lapsed between the first and second judgments. When the Commonwealth attempted to include an appeal from the first judgment in its appeal from the second, the Land Court struck the appeal from the first judgment as untimely. The Commonwealth's appeal from that ruling and its appeal from the second judgment were entered in the Appeals Court and there they were consolidated “for briefing and consideration.” We granted Arno's application for direct appellate review. 1
1. History of the parcel. The basic history of Arno's parcel is undisputed. Before recounting it, we pause to define three terms that will be used frequently. 2 First, “tidal flats” or “flats” refer to “the area between mean high water and mean low water (or 100 rods from mean high water, if lesser).” Opinions of the Justices, 383 Mass. 895, 902, 424 N.E.2d 1092 (1981). Second, “submerged lands” refers to “land lying seaward of flats.” Id. at 903, 424 N.E.2d 1092. Together, tidal flats and submerged lands-all the land lying below the mean high water mark-are referred to as “tidelands” generally. Opinions of the Justices, 383 Mass. 927, 928, 424 N.E.2d 1111 (1981) ().
Unless relinquished, see Opinions of the Justices, supra at 902-906, 424 N.E.2d 1092, the public has certain rights in all tidelands. See Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-639, 393 N.E.2d 356 (1979) ( Boston Waterfront ). However, because actual high and low water marks can change over time, notably pursuant to licenses to fill flats and submerged lands with soil, the starting point for determining the public's rights in tidelands (filled or unfilled) must be the historic, or “primitive,” high and low water marks. See Opinions of the Justices, supra at 900-901, 424 N.E.2d 1092.
a. Filling of Nantucket Harbor and Arno's parcel. 3 Prior to 1882, at least a large portion of Arno's parcel was one of several “water lots,” that is, submerged portions of Nantucket Harbor. 4 In 1882, a license was issued to the Nantucket Railroad Company to fill in a narrow strip of the harbor in order to construct a roadway. The effect of this filling was to create a tidal basin landward of the new road (and seaward of the historic high water mark) that would fill with water during high tide and mostly drain, through a “sluiceway” in the filled road, during low tide. After the 1882 fill, Arno's parcel lay largely within the newly created tidal basin. 5 Thus, after the 1882 filling, at low tide, a portion of Arno's parcel, including a portion on which he now seeks to build, remained submerged land; at high tide, most of his land was under water, including all but a small fraction of the land on which he now seeks to build. The extreme seaward line of the parcel (the eastern-most edge of the filled road) continued to border on Nantucket Harbor, with the high and low water marks on that side being roughly equal due to the construction of a bulkhead along the road, protecting it from being inundated by the harbor.
The high and low water marks inside the tidal basin and along the harbor continued in existence until 1895 when a second license was issued. The 1895 license authorized the filling of the tidal basin. As a result, the entirety of Arno's parcel was filled and the only “water” line that continued in existence was along the bulkhead that lay between Arno's parcel and Nantucket Harbor. 6
Both the 1882 and 1895 licenses were revocable and subject to conditions. Specifically, the licenses were made “subject to the provisions of the nineteenth chapter of the Public Statutes, and of all laws which are or may be in force applicable thereto.” Chapter 19 of the 1882 Public Statutes was first enacted in 1866, St. 1866, c. 149, and is now codified at G.L. c. 91, the Waterways Act. See Trio Algarvio, Inc. v. Commissioner of the Dep't of Envtl. Protection, 440 Mass. 94, 97-100, 795 N.E.2d 1148 (2003). Thus, when the board of harbors and land commissioners authorized the filling of the parcel later acquired by Arno, it did not divest the Commonwealth of its right to subject the filled lands to regulation; indeed, the licenses were revocable at the discretion of the licensing board or the Legislature. 7
In summary, after being filled pursuant to the 1895 license, Arno's parcel, which formerly had been submerged in whole or in part during low tide, see note 4, supra, bordered the water on only one side where a bulkhead constructed after 1882 met the waters of Nantucket Harbor. However, the dry earth that constituted Arno's parcel was licensed fill, and that fill remained subject to the Commonwealth's regulatory authority over tidelands and the public trust.
b. 1922 registration proceedings. The next relevant event occurred in 1921 and 1922 when two individuals petitioned to register the two lots that now constitute Arno's parcel. 8 Both petitions were reviewed by an examiner of title, see G.L. c. 185, §§ 12, 24, who concluded that the petitioners lacked proper title and should not be allowed to register the lots. The examiner traced the lots back to the submerged “water lots” that existed before 1882 and noted that the owners of those lots had “no right to build structures [on the water lots] and fill in under the same, and thus gain title to the land under the building.” The examiner concluded that there “has been no grant from the State of the land under tide water.” 9 In short, the examiner concluded that the Commonwealth was the true owner of Arno's parcel in 1922 because the parcel never had been conveyed to a private party. Rather, the parcel was licensed.
After publication of notice of the filing of the two registration petitions, the Attorney General appeared on behalf of the Commonwealth to respond. In both responses, the Attorney General asserted that the lots “border[ed] on tidewaters, in which the public has certain rights.” The Attorney General also asserted that the bulkhead was located too far seaward, thus unlawfully accreting to the parcel land that should have been part of the harbor. 10 Despite the examiner's reports that concluded that the Commonwealth had title to both lots, and despite his assertion that the public had “certain rights” in them, the Attorney General stated that he had “no objection to the entry of the [registration] decree[s] ... provided the same [are] made subject to any and all rights of the public.” With regard to the land that the Attorney General viewed as unlawfully filled, he also asked that the registration decree not include a right to maintain the illegal bulkhead that bordered it.
The Land Court issued original certificates of fee simple title to both lots in 1922. Both certificates set out the boundaries of the lots with precision, with the exception of the “Harbor line,” i.e., the parts of the lots that bordered Nantucket Harbor, which were left undetermined for surveying reasons. 11 The registration certificate included a caveat, making title subject to “any and all public rights legally existing in and over the same below mean high water mark.” The parties refer to this as the “waterways encumbrance” because, despite their disagreement about whether the “mean high water mark” referred to the historic (pre-1882) or contemporary (1922) high water mark, they agree that it was the Attorney General's intent to reserve the public's public trust rights below the relevant water line.
c. Arno's application for license pursuant to the Waterways Act. When Arno took title to the two lots in 1962,...
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