Newburyport Redevelopment Authority v. Com.

Citation401 N.E.2d 118,9 Mass.App.Ct. 206
PartiesNEWBURYPORT REDEVELOPMENT AUTHORITY v. COMMONWEALTH et al.
Decision Date08 November 1979
CourtAppeals Court of Massachusetts

Howard R. Palmer, Asst. Atty. Gen., for the Commonwealth.

Stuart T. Freeland, Boston (Hugh J. Doyle, Newburyport, with him), for plaintiff.

William R. Harris, Pacific Palisades, Cal. (Robert S. Wolfe, Boston, with him), for The Committee on Civic Rights of the Friends of the Newburyport Waterfront.

Before HALE, C. J., and GOODMAN and GRANT, JJ. GRANT, Justice.

This is a petition in the Land Court by which the Newburyport Redevelopment Authority (authority) seeks to confirm its title to approximately 10.4 acres of land (locus) depicted on the accompanying sketch plan. 1 An organization known as The Committee on Civic Rights of the Friends of the Newburyport Waterfront (committee) was permitted to appear, file an answer to the petition and participate in the proceedings. The primary thrust of that answer was an effort to have the court establish and declare that certain portions of the locus (shown as ways 1 through 11 on the sketch plan) "be held in public trust and that the public interest in these sites be registered in the name of the public;" the committee opposed the petition on other grounds as well. Following a seven-day trial, the judge of the Land Court entered a decision which rejected all the committee's contentions and ordered that title be confirmed in the authority, subject to certain rights of the Commonwealth which are not in dispute. The committee appealed. G.L. c. 185, § 15. 2

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The authority's claim to the locus arises from the following chain of events. On June 3, 1965, the authority adopted, and four days later the mayor and city council of Newburyport approved, an urban renewal plan (G.L. c. 121, § 26ZZ, as amended through St.1960, c. 776, § 7; see now G.L. c. 121B, § 1) for an area encompassing that portion of the locus not covered by the Merrimack River, as well as other land south of the locus. Thereafter, on some undisclosed date prior to July of 1971, the area covered by the plan was enlarged to include the entire locus.

By St.1967, c. 702, § 1, the Legislature authorized the authority to 'include in the area covered by an urban renewal plan . . . under (G.L. c. 121) so much of the tidelands as lie within' the area covered by the amended plan. By § 2 of that act the Legislature provided that 'all right, title and interest of the commonwealth in and to the tidelands' within the area described in § 1 'shall vest in the Authority' upon the occurrence of certain conditions. Those conditions had all occurred by October 26, 1969. Section 2 also provided for a title examination 'to determine the right, title and interest of the commonwealth in the area vesting in the Authority under this act' and for payment by the authority to the Commonwealth of 'such compensation as . . . may be . . . determined by the governor to be just compensation therefor,' based upon an appraisal by a real estate expert and a recommendation of the Department of Public Works. The title examination had apparently not been undertaken by the time of trial. It has been stipulated by the Commonwealth and the authority that the latter's title to the locus is to be confirmed subject to the Commonwealth's receiving the compensation required by § 2.

On November 13, 1967, the city council of Newburyport voted that the city convey to the authority '(t)he premises known as Riverside Park. ' The authority appears to have purchased several other parcels within the locus prior to 1968. By separate orders of taking adopted on March 14, 1968, and July 20, 1972, the authority took by eminent domain the fee in the entire locus, thereby confirming its title to the parcels within the locus which it had already purchased and gaining title to the remainder. The takings included 'the fee to the center of any and all public streets, highways and public ways' but excluded 'any and all easements of public highways and public easements of travel in and to any and all streets, highways and public ways' within the locus.

On March 28, 1977, the city council voted without notice or a hearing to 'discontinue( ) any and all public rights in any and all portions of streets, highways, ways or landings' lying within the locus except the southerly portions of ways 5 through 8 and 11 as shown on the sketch plan. On the same day the city council released all the city's 'right , title and interest, if there be, in and to' the locus except the portions of the ways which had been excluded from the operation of the order of discontinuance.

The authority's title to the locus thus depends upon (1) the effects of the Legislature's act providing for the vesting in the authority of the Commonwealth's title to the tidelands lying within the locus, (2) the city's sale of Riverside Park to the authority, (3) the authority's eminent domain takings, and (4) the city council's order of discontinuance. The committee's first attack on these various actions came in an action it brought in the United States District Court for the District of Massachusetts. On February 1, 1977, that action was dismissed pursuant to a stipulation by which the parties agreed, among other things, that the authority would seek confirmation of its title to the locus in the Land Court and would request that court to 'declare and determine the extent of then existing public rights in ways and Riverside Park situate' within the locus. The present petition followed.

1. We now summarize certain historical facts. On May 6, 1935, the General Court passed an order by which 'Wessacucon is allowed by the Court to be a plantacon . . .hereafter to be called Neweberry. 3 Further, it is ordered, that it shall be in the power of the Court to take order that the said plantacon shall receave a sufficient company of people to make a competent towne.' 1 Records of the Governor and Company of the Massachusetts Bay 146 (1853). Apparently the original settlers of Newbury never obtained from the Legislature any grant of title to any of the land in Newbury other than that which is to be implied from the language of the foregoing order. As was common during that period (Akagi, The Town Proprietors of the New England Colonies 15-21 (1924)), the early settlers of Newbury soon organized a body of proprietors who held title to and managed the common lands of the town. We find in the records of the Newbury proprietors an order passed by them in 1642 listing ninety-one persons and stating, 'It is declared and ordered hereby . . . according to the former intentions of the towne that the persons only above mentioned are acknowledged to be freeholders 4 by the town and to have a proportionable right in all waste lands, commons, and rivers undisposed of and such as by from, or under them or their heyers have bought, granted, or purchases from them or any of them theyr right and title there unto and none else' (emphasis original). Akagi, at 129 & n.31. Coffin, Sketch of the History of Newbury, Newburyport, and West Newbury 292 (1845).

From the 1600's into the 1800's wharves were developed and expanded within the locus. So far as appears from the present record, those wharves extended for the most part only to the approximate location of the natural low water mark. Buildings were constructed on these wharves, particularly on the southerly portion of each. These appear to have been primarily commercial buildings, stores and warehouses. See Adams v. Frothingham, 3 Mass. 352, 361 (1807). It is, in most cases, the spaces between those buildings which the committee asserts were public ways to the waterfront. The following is a summary of the evidence concerning the origin and development of each of the alleged ways through 1869, when construction of the Newburyport City Railroad was authorized along the waterfront.

(a) Way 1. On July 12, 1751, the proprietors of Newbury voted 'that the landing( ) in . . . Newbury called . . . Somerbys landing Place( ) (is) now . . . Voted to the towns use & to lay so wide as (it is), now unsold & the same to lay for ways & landing, for ever & no more of said ways to be sold or be use any other ways But as it is in this vote expressed. ' On March 10, 1752, the town meeting of Newbury received the following communication: '(A)s the Proprietors of this Town at their last meeting voted to Grant the Landing( ) at . . . Somerbys so called to Lay for Publick ways & landings for the town'suse--We have laid out the same for the uses . . ..' The town meeting accepted the ways and ordered that they be recorded. On July 10, 1781, the town meeting voted to request the selectmen 'to Lay down for a Landing or private way for the use of the Town, all the Land and flatts in Somberby's Landing so called, to the Eastward of a line of the Westerly side thereof, agreable to a plan of the Westerly side of said Landing, presented to and accepted by the Town, which was Taken by order of the Select Men of the 3 Instant. ' The warrant for the March 14, 1782, town meeting indicates that one of the orders of business was 'To accept of the laying out of Somberby Landing, so called, as a private way or landing by the selectmen. ' What action, if any, was taken at that meeting is not disclosed on the present record.

(b) Way 2. On March 26, 1722, a committee previously appointed for the purpose by the proprietors reported that it had sold land at way 2, apparently stretching from Merrimac Street to the Merrimack River, to Banajah Titcomb and his son Edmund, and the proprietors confirmed this action. There is no indication that any right was reserved to the public in this transaction. A description of property seized form one Jonathan Titcomb in satisfaction of an unpaid debt which was recorded on July 23, 1788, refers to a 'way leading from Merimack street to said...

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