Attorney General v. Boston & Lowell Railroad

Gray, C. J. The colony ordinance of 1647, which is the source of private title in flats below high water mark, provides that the proprietors “ shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men’s houses or lands.” Anc. Chart. 148, 149. And it is within the authority of the Legislature, for the benefit and security of public navigation, to regulate and restrain the building of wharves or other structures upon the flats under navigable waters wherever the tide ebbs and flows. Commonwealth v. Alger, 7 Cush. 53. Attorney General v. Woods, 108 Mass. 436. The Legislature — perceiving the danger that any building upon or filling up of flats by private owners for their own advan [349] toge might, by diminishing the volume and changing the course of the tide waters flowing in and out of the harbors, and the consequent increase of deposits, tend to choke up the channels and obstruct navigation — established by the St. of 1866, c. 149, a board of harbor commissioners, and by § 2 intrusted to them “the general care and supervision of all the harbors and tide waters, and of all the flats and lands flowed thereby, within the Commonwealth, except the Back Bay lands, so called, in the city of Boston, in order to prevent and remove unauthorized encroachments and causes of every kind which are liable to interfere with the full navigation of said harbors, or in any way injure their channels, or cause any reduction of their tide waters.” By § 4, “ all persons that have been or may be authorized by the Legislature to build over tide waters any bridge, wharf, pier or dam, or to fill any flats or to drive any piles below high water mark, who have not already begun such work, shall, before beginning it,” give notice and submit plans of the proposed work to the harbor commissioners, and obtain their approval thereof in writing; and the harbor commissioners are to ascertain “ the amount of tide water displaced by any structure or filling hereafter authorized as aforesaid,” and to require the parties making the same to make compensation therefor, either by excavating in the same harbor to such an extent as may create a basin for as much tide water as may be displaced by such structure or filling of flats, or by paying a sufficient sum of money for making such compensation, or by improving the harbor in any other mode to the satisfaction of the commissioners. By § 5 “ all erections and works hereafter made without authority from the Legislature, or in any manner not sanctioned by the board of harbor commissioners, where their direction is required as hereinbefore provided, within tide waters flowing into or through any harbor, shall be considered a public nuisance, and liable to indictment as such,” or may be restrained by injunction at the suit of the attorney general or other attorney of the Com monwealth, under the direction of the harbor commissioners. It is under this statute that the present information has been filed. The defendant rests its defence upon two grounds: 1st. On an authority claimed under the St. of 1845, e. 224. 2d. On having begun its work before the passage of the St. if 1866, [350] o. 149. But the court is of opinion that neither ground is tenable. The St. of 1845 merely defined the boundary lines of the defendant’s flats, and conferred no new title, right or authority upon the defendant. When this information was filed, the extent of the flats which the defendant intended to fill up and build upon had not been defined by any legislative act, or by any line of wall or piles, but rested wholly in the knowledge and purposes of the defendant and its agents, and the case shows that the tide water ebbed and flowed with no obstruction except by a wall built along one side and about a fourth part of the front of the flats and then turning and running back a short distance towards the upland, and there stopping — so that at the time of the filing of this information there was nothing to indicate the further direction of the sea wall, or whether it was to run across the flats towards Austin Street or back to the upland, except so far as its course might be conjectured from the fact that piles had begun to be driven (to what extent does not appear) for a continuation of the proposed line now in question. It cannot be deemed to have been the intention of the Legislature that an undisclosed purpose, or even a plan upon paper, of work intended to be done, should be deemed a beginning of work, within the meaning of the St. of 1866, c. 149, § 5, and exempt the owner from the supervision of the harbor commissioners. It follows that the defendant, not having obtained the approval by the harbor commissioners of the proposed work, is subject to Injunction.