“the land in question is not . . . like ordinary private land held in fee simple absolute”
How later courts described this case
- “the land in question is not . . . like ordinary private land held in fee simple absolute”
- wharf-ing statutes granting landowners fee simple title to certain Commonwealth tidelands “subject to the condition subsequent that it be used for the public purpose for which it was granted”
- “Throughout history, the shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property”
- distinguishing between the allocation of property rights among private individuals and situations involving public trust resources
Written by the judges who cited it.
The opinion
Braucher, J.
(dissenting). I agree with the court that as an original question St. 1832, c. 102, might well have been read as a revocable license rather than a grant, as provided by St. 1869, c. 432, § 1, for subsequent legislation. I also agree that our past decisions have established that such statutes, before 1869, were grants rather than revocable licenses, and that we should stand by those decisions. Fitchburg R.R. v. Boston & Me. R.R., 3 Cush. 58 , 87 (1849), interpreted as deciding there was an "irrevocable grant” in Note, 9 Gray 503 , 520 (1857). But I do not agree that the grant is subject to a condition not expressed in the statute.
I do not find in the record any indication that the existence of a condition was claimed or litigated in the Land Court. There the parties stipulated that the only issue was whether "the Petitioner obtained fee simple title to the soil beneath the fill pursuant to the legislative grants.” The judge in his decision discussed the questions whether the words of the grant were limited to the wharf itself and whether the legislative acts constituted a grant rather than a license; he did not mention any claim that the grant was subject to a condition. The Common *655 wealth’s brief in the Appeals Court argued that the statutes gave only a license and that the petitioner’s only title "was to the actual wharf itself to its lawful extension.” Apparently the issue of a grant subject to an unexpressed condition was raised by the Appeals Court on its own initiative.
If the condition issue had been fully aired in the Land Court, in reviewing it I would start with the principle that the statute here in issue "operated as a legislative grant subject to the terms and conditions therein set forth, and not as a mere revocable license” (emphasis supplied). Treasurer & Receiver Gen. v. Revere Sugar Refinery, 247 Mass. 483, 489 (1924), and cases cited. Cf. Bradford v. McQuesten, 182 Mass. 80, 81 (1902) (grant subject to terms and conditions "expressed in it”). The only condition expressed in the 1832 statute requires that any part of the wharf constructed in the harbor channel be "built on piles” and be parallel with described lines; there is no suggestion that there has been a breach of that condition. The condition now in issue is defined by the court on the basis of verbal formulas in committee reports and judicial opinions first committed to writing many years after the grant.
The present decision leaves in limbo the ownership of the particular tract in litigation. The resulting uncertainty as to that tract may not be a matter of grave public concern, but we are told that there will be a similar mischievous effect on uncounted other parcels. In time the uncertainty may be alleviated by a broad interpretation of what uses are consistent with the "public purpose” embodied in the condition, or by the operation of G. L. c. 260, § 31A. Meanwhile, however, the present decision creates a clog on the alienability of land contrary to a public policy that has prevailed for centuries.
I would affirm the decision of the Land Court.
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