Opinion of the Justices to Senate

• Decision Date: 18 June 1981
• Citation: 383 Mass. 895,424 N.E.2d 1092
• Parties: OPINION OF the JUSTICES TO the SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1092

424 N.E.2d 1092

383 Mass. 895

OPINION OF the JUSTICES TO the SENATE.

Supreme Judicial Court of Massachusetts.

June 18, 1981.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on February 5, 1981, and transmitted to us on February 13, 1981. The order recites that there is pending before the General Court a bill entitled, "An Act relative to title to tidelands lying within the city of Boston and bordering on or near the waters of the commonwealth." (Senate No. 1001).

The emergency preamble proposed for Senate No. 1001 states that the purpose of the act is to provide immediate certainty "as to titles to certain lands lying within the city of Boston, and bordering on or near the waters of the commonwealth, which bear clouds by implication of conditions applicable thereto not expressly set forth in any license, act, or other instrument, or otherwise." The preamble further recites that these "clouds seriously affect the value of such existing land and structures and cause serious impediments to the marketing and financing of improvements to such lands." We note that a similar bill was before the Senate during the previous session of the Legislature, that questions identical to those now propounded to us were then propounded to the Justices of this court, that the legislative session ended before the Justices rendered their opinion, and that, in the absence of a solemn occasion, the Justices were obliged to decline to answer the questions. See Answer of the Justices, --- Mass. ---, --- ^a, 415 N.E.2d 170 (1981).

Section 1 of the bill proposes to amend G.L. c. 184, by inserting a new § 23A, concerning the construction of instruments, including legislation, that purport to create rights in the waters of the Commonwealth, and underlying lands, in Boston, situated below the mean high water mark. Section 2 of the bill proposes to insert a new c. 91A of the General Laws concerning ownership interests in tidelands, defined by proposed G.L. c. 91A, § 3, as areas below the primitive mean high tide in Boston. The new chapter would deal separately with any "vestigial interest of the commonwealth" in tidelands lying landward of a specified line (defined as the "1980 Line") and with the Commonwealth's "vestigial rights," as defined in proposed G.L. c. 91A, § 2, in tidelands lying seaward of that line. The 1980 Line, see Appendix A, is drawn along major Boston thoroughfares generally as follows: Massachusetts Avenue, Storrow Drive, Charles Street, the access to the Fitzgerald Expressway, the Fitzgerald Expressway, east to Commercial Street, then along Atlantic Avenue and Albany Street. Speaking generally, proposed § 2, undertakes to eliminate any vestigial interest of the Commonwealth in tidelands lying landward of the 1980 Line which have been or are hereafter filled pursuant to the express language of any instrument, including a legislative act. Again in general terms, proposed G.L. c. 91A, §§ 4 and 5, set forth procedures by which, on application of a record owner of an interest in such tidelands, the secretary of the executive office of environmental affairs may release and extinguish the Commonwealth's vestigial rights in tidelands lying seaward of the 1980 Line.

The order transmitted to us asserts that grave doubt exists as to the constitutionality of Senate No. 1001 if enacted into law and propounds the following questions:

"1. Would section one of said senate bill, if enacted, cure title and eliminate any vestigial rights of the commonwealth, whether by way of implied condition, public trust or otherwise, in and to any and all tidelands or submerged lands located within the city of Boston?

"2. Would section two of said senate bill, if enacted, cure title and eliminate any vestigial rights of the commonwealth, whether by way of implied condition, public trust or otherwise, in and to any and all tidelands or submerged lands located within the city of Boston lying landward of the 1980 Line and

"a. filled by private or public entities or persons pursuant to general or special legislation containing no express conditions restricting use; or

"b. filled by private or public upland landowners pursuant to authority contained in the Colonial Ordinances of 1641-1647 prior to the effective date of St.1866, c. 149, requiring the licensing of any such fill; or

"c. filled pursuant to licenses granted by the Board of Harbor Commissioners or its successor agencies pursuant to St.1866, c. 149, as amended and now in law as chapter ninety-one of the General Laws, either where such licenses contain no express language of condition or where there is express language of condition; or

"d. Which have been both continuously filled and privately occupied for a period of twenty years beginning after the effective date of Revised Statutes, Chapter 119, Section 12 (effective April 30, 1836) and creating a twenty year statute of limitations affecting real estate interests of the commonwealth and ending before the effective date of St.1867, c. 275 (effective May 27, 1867), and purporting to exempt interests of the commonwealth in lands below the line of primitive mean high water from the application of any statute of limitations; or

"e. filled by the commonwealth or one of its agencies or political subdivisions or bodies politic and corporate pursuant to the provisions of general or special legislation, and thereafter, conveyed to private landowners either for consideration or without consideration?

"3. Would said bill, if enacted into law, be in contravention of Section one of Article XIV of the Amendments to the Constitution of the United States, or Article X of Part the First of the Constitution of the Commonwealth, guaranteeing due process and equal protection of the laws?

"4. Would said bill, if enacted into law, be in contravention of Article IV, Section one, of Chapter one, of Part the Second of the Constitution of the Commonwealth, as exceeding the power of the General Court to make all manner of wholesome and reasonable (statutes)?

"5. Would said bill, if enacted into law, require a two-thirds vote of both branches of the General Court (under) Article XCVII of the Articles of Amendment of the Constitution of the Commonwealth?

"6. Would the said bill, if enacted into law, be an unlawful delegation of legislative power and responsibility to regulate the public trust over certain tidelands in violation of Article XCVII of the Articles of Amendment, or Article XXX of Part the First of the Constitution of the Commonwealth?" ¹ Before dealing with the specific questions that have been propounded to us, we shall consider generally both the nature of the interests in tidelands with which Senate No. 1001 is concerned and the extent of the authority of the Legislature to dispose of or to relinquish the interests of the public in those tidelands. We shall next analyze Senate No. 1001 in light of the applicable principles of law, and finally we shall give our responses or answers to the six questions that have been propounded to us.

General Considerations

It is clear that Senate No. 1001 was drafted to address concerns with respect to the title to, and the use of, property in the city of Boston lying below the primitive mean high water mark. These concerns appear to be a response, at least in part, to the opinion of the Supreme Judicial Court in Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 ^b, 393 N.E.2d 356 (1979) agreeing with the formulation adopted by the Appeals Court in Boston Waterfront Dev. Corp. v. Commonwealth, 6 Mass.App. 214, 374 N.E.2d 598 (1978), concerning the consequences of legislative grants with respect to Lewis Wharf. The Boston Waterfront case involved the nature of the petitioner's ownership interest in a portion of Lewis Wharf lying below the historic low water mark. The Supreme Judicial Court held, with one of the five Justices on the panel dissenting, that the petitioner held title to the disputed area of the wharf in fee simple, but subject to the condition subsequent that it be used for the public purposes for which it was granted. Boston Waterfront Dev. Corp. v. Commonwealth, supra, 378 Mass. at --- ^c, 393 N.E.2d 356.

It should be noted that the Boston Waterfront case involved the owner's rights in submerged land (generally, land lying below the historic mean low water mark) and not in flats (land lying between the mean high water line and the mean low water line or a line 100 rods from the mean high water line, whichever is the lesser). See Opinion of the Justices, 365 Mass. 681, 684-686, 313 N.E.2d 561 (1974), discussing the colonial ordinance of 1641-1647 as to the relative rights of the public and upland property owners in flats. Further, it is obvious that the Boston Waterfront case concerned the consequences of the Lewis Wharf statutes, statutes which did not undertake by their express terms to transfer all the Commonwealth's or the public's interests in the disputed land to the petitioner's predecessors in title. Consequently, the court was not concerned with the right of the Legislature to surrender such interests if it so desired.

We do not read the Boston Waterfront decision as resting on the premise that the Legislature lacks the power under constitutional principles to transfer all the interests of the public and of the Commonwealth in tidelands. Thus, although the land in dispute in the Boston Waterfront case was impressed with a public trust in the circumstances, the court did not pass on, or even discuss, the validity of any legislative attempt to surrender or to relinquish such a residual public interest.

Senate No. 1001 is drafted on the assumption that the Legislature has the right to abandon or relinquish such a public trust in favor of private landowners. Several of the questions propounded...