U.S. Gypsum Co. v. Mystic River Bridge Authority

• Decision Date: 12 June 1952
• Citation: 329 Mass. 130,106 N.E.2d 677
• Parties: UNITED STATES GYPSUM CO. v. MYSTIC RIVER BRIDGE AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 677

106 N.E.2d 677

329 Mass. 130

UNITED STATES GYPSUM CO. v. MYSTIC RIVER BRIDGE AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 10, 1952.

Decided June 12, 1952.

S. C. Rand and G. D'A. Belin, Jr., Boston, for petitioner.

E. O. Proctor, A. V. Sullivan, and J. W. Kelleher, Boston, for respondent.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is a petition for the assessment of land damages alleged to have been sustained by the petitioner by the construction of a high level toll bridge by the respondent over the Mystic River connecting Chelsea and the Charlestown district of Boston. The jury awarded damages in the sum of $262,950, of which they found $50,550 was due to damages resulting from the taking of an easement in the form of an air space over a part of the petitioner's land and $212,400 was on account of damages resulting from the location of one of the piers of the bridge. The case is here on various exceptions of the respondent.

The petitioner has owned and occupied since 1928 a parcel of land on the Mystic River in the Charlestown district of Boston which contains 232,770 square feet and borders for 434.53 feet along the pierhead and bulkhead line on the southerly side of the north channel of the river. The upper part of this area consists of the Reading dock or slip of 97,900 square feet and an area of 10,300 square feet covered by wooden wharves. The petitioner is engaged in the manufacture of plaster board or sheet rock and rock lath, a plaster base which is used largely as a substitute for wood or metal lath in constructing buildings. Rock gypsum, the raw material for these products, is mined in Nova Scotia, and down to 1947 was transported by water to the Charlestown plant and other Atlantic coast plants of the petitioner in bulk cargo vessels, with holds for the cargo, which were owned or chartered by the petitioner. These vessels owned by the petitioner measured a little over 361 feet in length and 52 feet 6 inches in breadth, and when loaded had a draft of 21 feet 6 inches. Their capacity was about 7,000 tons. The chartered vessels did not differ materially in type or dimensions from the petitioner's vessels. These vessels were not unloaded against the face of the petitioner's wharf but were docked against a camel or wooden float 15 feet wide which was placed between the wharf and the vessel. This procedure was necessary as the water was too shallow next to the wharf and any dredging might endanger the sea wall which had been built subsequent to the Civil War by putting loose stones in a trench and building a masonry structure upon the stones. These vessels were unloaded by a crane travelling along a track so as to place its boom at right angles to the wharf and over the holds and removing a part of the cargo from each hold so as to avoid straining the vessel until the vessel was entirely unloaded.

The respondent was created by St.1946, c. 562, as amended by St.1947, c. 626, to build a bridge for vehicular traffic between Chelsea and Boston. It was authorized to locate the bridge, to acquire land and easements, to make contracts for its erection, to issue bonds, to collect tolls, and to supervise and maintain the bridge until its costs were fully paid, and the bridge was then to be turned over to the Commonwealth. In erecting the bridge a pier known as pier M2 was placed in the bed of the river upon land admittedly owned by the Commonwealth as a part of the public domain. The side of this pier was not parallel to the face of the petitioner's wharf for the nearest downstream corner was 77 feet and the upstream corner 95 feet distant from the wharf. This pier was completed on May 29, 1949.

The petitioner in 1946 contracted for the construction of two self unloading vessels which were larger than those it had been using. These vessels were completed in 1947, but the first one did not arrive in Charlestown until August 20, 1948, after the cofferdam for the pier had been built. These new vessels were 441 feet in length and 64 feet in breadth, and their draft when loaded was 24 feet 6 inches. The cargo is discharged by permitting the gpysum to fall through gates at the bottom of V shaped holds, which regulate the flow, upon a belt conveying the gypsum to the stern and then by means of another belt to a shore installation equipment, by which, it is deposited in one of the silos. This installation equipment was planned for in 1947 and was placed prior to August 20, 1948, at a distance from the downstream end of the wharf so as to be opposite to where the stern of the larger vessels would be docked far enough upstream so as to be safe from striking the pier. This installation equipment needed for the unloading of the larger vessels was too heavy to move to permit the travelling crane to pass and so prevented the latter from functioning efficiently in the unloading of the bulk cargo vessels. The crane's track had been shortened from 223 feet to about 150 feet. The installation equipment unloaded the larger vessels from the stern and, it being dangerous to dock these vessels between the wharf and the pier, this installation device could not be placed nearer to the downstream end of the wharf than it was. It was necessary for the petitioner to use both types of vessels as the smaller vessels could operate during the winter from a port on the Bay of Fundy where the larger vessels could not operate and when Hantsport, the port regularly used by the larger vessels, was closed because of ice. The petitioner had storage facilities for only a three weeks' supply of gypsum, and an interruption of transportation would cause a closing of its plant resulting in a loss of about $8,000 a day. The petitioner in May, 1948, purchased a parcel having 100 feet river frontage next adjacent upstream to the Reading slip and contemplates closing the open mouth of this slip and extending the tracks of the travelling crane across the slip and onto this new parcel. We need not mention the other various losses which the petitioner contends it has sustained by the building of the pier or the amount that the market value of its premises has thereby decreased, for the respondent concedes that, if the petitioner is entitled to recover damages by reason of the construction of the pier, there was evidence sufficient to support the finding of the jury that the damages due to this cause amounted to $212,400. The question of law presented is whether the respondent is liable to pay such compensation.

Before passing to this question of law, it is necessary to mention that the respondent on September 8, 1949, took an easement of an air space over part of the petitioner's property, the base of which was 123.5 feet above mean low water, ¹ about 152 feet in length and about 46 feet in width. The air space taken was of unlimited height above this base. The base of this horizontal plane had an area of 6,621 square feet. The bridge occupies the lower part of this air space. The respondent makes no objection to the award of $50,550 on account of the taking of this easement which actually interferes with the beneficial use of the land and which the parties properly regarded as the taking of an easement on the petitioner's land. Smith v. New England Aircraft Co., Inc., 270 Mass. 511, 528-529, 170 N.E. 385, 69 A.L.R. 300; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 635, 42 N.E.2d 575; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287; Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716, 11 L.R.A.,N.S., 920; Maitland v. Twin City Aviation Corp., 254 Wis. 541, 37 N.W.2d 74. Indeed, the respondent on June 29, 1951, filed an offer of judgment in the amount of $50,550 for damages due to the taking of this easement.

The important question is whether the petitioner is entitled to compensation for damages due to the construction of the pier which is located in the bed of a navigable river at a place always covered by tide water and upon land owned by the Commonwealth as a part of the public domain. The Commonwealth consented to such use of the locus as may be 'necessary for the construction or operation of the project,' St.1946, c. 562, § 14, ² for which it was to receive no compensation. Section 5. No part of the pier rests upon any land in which the petitioner has any proprietary interest. The placing of this structure by a governmental agency authorized by the Legislature to do so, for the accomplishment of some public purpose, or by a railroad or some other public service corporation if likewise authorized, would not constitutionally require the payment of compensation to a landowner who had thereby sustained an impairment of access to his wharf. Our Constitution, Declaration of Rights, art. 10, merely provides that 'whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.' The owner of a wharf upon land bordering on an arm of the sea is not entitled to compensation under our Constitution or at common law if navigation between his property and the sea is destroyed by the authorized construction of a bridge without a draw between his property and the sea. It was said in Butchers Slaughtering & Melting Association v. Boston, 214 Mass. 254, 257, 101 N.E. 426, 427, 'It is settled that at common law the petitioner is remediless,' and in Brackett v. Commonwealth, 223 Mass. 119, 123, 111 N.E. 1036, 1038, 'Doubtless the injuries sustained by the petitioners were of a kind for which at common law no action would lie and no constitutional right would have been infringed if no provision for compensation to them had been made.' Furthermore, it has frequently been held that where access to the sea by a riparian owner has been cut off by the...