MASSACHUSETTS PORT AUTHORITY vs. ORIENT HEIGHTS YACHT CLUB, INC., COMMONWEALTH OF MASSACHUSETTS

The Massachusetts Port Authority (the Authority), a body corporate and politic established by St. 1956, c. 465, has filed a petition, later amended, to cancel outstanding Transfer Certificate of Title No. 47164 registered in Book 231, Page 164 [Note 1] in which the Commonwealth of Massachusetts (the Commonwealth) is named as the registered owner and requesting that a new transfer certificate of title be issued in the name of the Authority as the owner of a certain parcel of registered land in East Boston, Suffolk County, described in said Transfer Certificate of Title No. 47164 less so much of said land as is described in two deeds registered as Documents numbered 213077 and 213095 and shown as lots 4 and 5 on a plan entitled “Subdivision Plan of Land in Boston (East), Massachusetts Department of Public Works, Division of Waterways, Robert B. MacKinnon, District Engineer, May 1954” for which separate transfer certificates have been duly issued. The land for which the Authority seeks a new transfer certificate of title is hereinafter referred to as the locus. The petition was brought pursuant to the provisions of G.L. c. 185, § 112 to determine the validity of an adverse claim and the written statement of adverse claim required thereby was filed for registration on January 27, 1975.

The respondent Orient Heights Yacht Club, Inc. (the Yacht Club) initiated the proceedings that led to this petition by filing a complaint in the Superior Court of Suffolk County (No. 3858) to determine the respective rights of the Authority and the Commonwealth in and to a small parcel of the locus and to compel the Commissioners of the Department of Public Works (the Commissioners) to convey all right, title and interest of the Commonwealth in and to said parcel to the Yacht Club pursuant to St. 1960, c. 763. The petitioner in the instant case filed an answer in that case stating that in 1960 he Commonwealth had no right, title or interest in said parcel since title to it had vested in the Authority on February 17, 1959 pursuant to St. 1956, c. 465, §5. In a supplemental counterclaim, the Authority requested the court to determine the fair value of the use and occupancy of this parcel by the Yacht Club and to order the Yacht Club to pay said amount to the Authority. On May 12, 1975 the Authority's motion to transfer Superior Court Action No. 3858, including the above complaint and counterclaim, to the Land Court was allowed, and on May 19, 1975 the Authority's motion to consolidate that action, Miscellaneous Case No. 76397, with the instant case was allowed. Although the two actions were tried together because they involve common issues of law and fact, the court, for the purpose of clarity, has rendered a separate decision for each case.

In its amended petition, the Authority alleges that it is the owner of all right, title and interest in and to the locus; that title to said locus vested in the Authority on February 17, 1959 pursuant to St. 1956, c. 465, § 5; that the Attorney General of the Commonwealth has advanced a claim on behalf of the respondent Commonwealth to said locus; that the respondent Yacht Club claims an interest in a small parcel of said locus arising under St. 1960, c. 763; and that the land claimed by the respondent Yacht Club is of uncertain location. The petitioner requests, inter alia, that the court validate its adverse claim to the locus, cancel outstanding Transfer Certificate of Title No. 47164, and issue to the petitioner a new transfer certificate governing the locus.

In its answer, the respondent Yacht Club admits that St. 1956, c. 465, § 5 provides for the vesting of title to certain “airport properties” in the petitioner, but alleges that the locus is not an airport property as defined in that statute. The Yacht Club denies that the petitioner has any interest in the locus.

The respondent Commonwealth's answer alleges that it is the owner of all right, title and interest to the locus and requests that the court enter a decree recognizing said ownership interest.

Although their counsel participated fully at trial, neither respondent introduced any witnesses. The respondent Yacht Club rested its case after introducing six exhibits while the Commonwealth rested after introducing two exhibits. The Commonwealth supplemented its presentation by requesting the court to take judicial notice of a compendium of relevant Massachusetts statutes. All fifty-two exhibits introduced at trial are incorporated herein by reference for the purpose of any appeal.

On all the evidence, and by judicially noticing documents of record in this court in Registration Case No. 15259, which involved land of which the locus is a part, and by judicially noticing relevant legislation of the Commonwealth to which the court's attention has been directed, the court finds the following facts.

On August 23, 1901 the respondent Yacht Club was granted a permit to build a single wood frame structure on a portion of the locus at Bayswater Street, East Boston. The permit notes that the building would be constructed on the harbor side of Bayswater Street on the beach and riparian land of the Boston Land Co. which was to be leased to the Orient Heights Yacht Club. Although it has never owned it, the Yacht Club has occupied this land continuously from 1902 to the present.

By deed dated May 15, 1911 and recorded in Book 3541, Page 421 [Note 2] on May 18, 1911, the trustees of the Boston Land Co. conveyed several parcels of land, including at least that portion of the locus on which the Yacht Club is located, to the East Boston Company subject to the “occupancy of the Orient Heights Yacht Club of lands and flats on south side of Bayswater Street.” On November 21, 1911, the Yacht Club entered into a lease agreement with the East Boston Company for “a certain portion of shore frontage and the parcel of flats pertaining thereto situated at Orient Heights.” The area to be leased, described by metes and bounds, is part of the locus and is substantially the same area as that presently occupied by the Yacht Club. The lease was for a one year term, but it provided that the Yacht Club would have “the privilege of renewing this lease at the expiration of one year upon the same terms and agreements, and subject to the same conditions contained in this lease.” The lease would “stand renewed from year to year without further action” unless terminated by the lessee or cancelled by the lessor according to the terms found in the lease. There is no evidence that this lease was ever terminated or cancelled by either party or by their successors in interest.

By deed dated November 2, 1928 and recorded on November 7, 1928 in Book 5080, Page 8, the East Boston Company conveyed to the East Boston Development Company certain land in East Boston, including the locus. A confirmatory deed, dated and recorded on August 14, 1935 in Book 5551, Page 501, named as grantee the Boston Port Development Company (formerly East Boston Development Company) and those claiming title under said Boston Port Development Company.

On June 19, 1945, a decree of registration issued from this court covering three parcels of land and flats in East Boston as shown on a “Plan of Land in Boston (East) Whitman & Howard, Civil Engineers, August 1932,” No. 15259A (Sheets 1 and 2) (the registration plan). Original Certificate of Title No. 45616 describing these three lots by metes and bounds was issued in the name of the Boston Port Development Company as the registered owner. The locus is a portion of the land shown on said plan and described in said certificate as lot 1. Original Certificate of Title No. 45616 discloses no entry reflecting any leasehold interest of the Yacht Club.

By Order of Taking dated December 20, 1945 and recorded beginning on Page 466 of Book 195 on December 28, 1945, the Commonwealth, acting through the Department of Public Works (the D.P.W.) purported to take in fee four parcels of land and flats, one of which included the locus, from the Boston Port Development Company pursuant to St. 1941, c. 695 and St. 1945, c.383. The former act is entitled “An Act Authorizing The Turning-Over Of The Boston Airport, So Called, To The Commonwealth. And Providing For The Improvement Thereof And Making Certain Changes In The Laws Relative to Airports.” It terminated outstanding leases of airport property between the Commonwealth and the City of Boston and transferred control of the then so-called “Boston Airport” from the City of Boston to the Commonwealth. The act authorized the D.P.W. inter alia, to take certain steps, including the acquisition of land by eminent domain or by purchase, to enlarge and improve the airport. In the latter act, entitled “An Act Directing The Department Of Public Works To Make Provision For The Continued Development Of The General Edward Lawrence Logan Airport At East Boston,” the D.P. W. was authorized and directed in §l to “further enlarge, extend, improve and develop the General Edward Lawrence Logan Airport.” In § 2, the D.P.W. was authorized “to acquire by purchase, deed, gift or otherwise or to take by eminent domain under chapter seventy-nine of the General Laws, lands other than public lands, or rights therein, as may be needed for obtaining filling material for said airport and for its further improvement.” St. 1945, c. 383 has an emergency preamble stating:

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to take without delay the necessary steps for the further development of the General Edward Lawrence Logan Airport, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety and convenience.

The aforesaid Order of Taking follows the language of c. 383 in that it was “for the purpose improving the General Edward Lawrence Logan Airport to acquire lands to obtain filling material for said Airport and for its further improvement.” The order contains a metes and bounds description of the four parcels of land. The fourth parcel, parcel “D,” is shown on a plan entitled “Plan Of Land Belonging To The Boston Port Development Co. Lying Between World War Memorial Park And Belle Isle Inlet East Boston Taken By The Commonwealth Of Massachusetts Acting By The Department Of Public Works Under Chapter 383, Acts Of 1945.” The plan is dated December, 1945, and is recorded in Book 6195, Page 466. Parcel D, as shown on this plan and containing approximately 8,350,000 square feet, covers substantially the same area as lot 1 shown on the 1932 registration plan mentioned supra and thus includes the locus.

The D.P.W.'s Annual Report for the year ending June 30,1946 indicates that payment of $700,000.00 for these four parcels of land, described as approximately 15,677,148 square feet lying northerly of World War Memorial Park and Neptune Road and extending along the northerly shore of East Boston toward Belle Isle Inlet, was made to the Boston Port Development Company from the third “Airport Loan” (Exhibit No. 15). The D.P.W. failed to follow the required procedures set forth in G. L. c. 79, § 4 for the taking of registered land by eminent domain, since the requisite information was never filed for registration and no memorandum of the taking was ever noted on the then outstanding certificate of title. However, the locus was later conveyed by a deed from the Boston Port Development Company to the Commonwealth. The memoranda of encumbrances accompanying Original Certificate of Title No. 45616 shows that lot 1, which includes the locus, was conveyed to the Commonwealth by deed dated May 20, 1946 and registered on June 27, 1946. The original certificate was cancelled as to lot 1, and Transfer Certificate of Title No. 47164 was issued in the name of the Commonwealth. The Commonwealth thus acquired lot l, including the locus, by grant and not by the purported taking. With the exception of two subdivisions of said lot 1, lots 4 and 5, which were conveyed to Theresa DiSessa and the City of Boston respectively, Transfer Certificate of Title No. 47164 continues to show the Commonwealth as the owner of the remaining portion of lot 1, the locus.

St. 1941, c. 695, which transferred control of the “Boston Airport, so called,” from the City of Boston to the Commonwealth, provided in § 14 that “[t]he commissioner of public works shall establish in the division of waterways a bureau of airport management. Said bureau shall ... maintain and operate all airports owned and maintained by the commonwealth.” The name of the “Boston Airport so called” was changed by St. 1943, c. 528, an act entitled “An Act Providing For The Improvement, Enlargement, Extension, Development, Construction, Alteration And Operation Of The Commonwealth Airport - Boston, So Called, And Providing Further For Easements, Roads, Highways, Approaches And Means Of Access By Railroad Or Otherwise In Connection Therewith.” Section 8 of c. 528 provides: “Said airport shall be known and designated as the General Edward Lawrence Logan Airport, and a suitable tablet or marker bearing said designation shall be erected at said airport by the department.”

Pursuant to the above-mentioned St. 1941, c. 695, the D.P.W. was authorized to acquire by eminent domain, or by purchase, any land necessary to fulfill its responsibilities under the act, and it managed what had become known as Logan Airport until the effective date of St. 1948, c. 637, an act entitled “An Act Changing The Laws Relative To State-Owned Airports In Respect To Their Management, Operation And Maintenance And Otherwise.” That act created the State Airport Management Board (the SAMB), gave the SAMB general operational control over all state-owned airports and specifically transferred to it “all the rights, powers, duties and obligations of the state department of public works pertaining to the acquisition, construction, maintenance and operation of [Logan Airport].” The Commonwealth retained title to the state-owned airports, but they were placed under the operational control of the SAMB. In addition, § 6 of c. 637 mandated that “[all maps, charts, plans, records and all other related documents and equipment” pertaining to the acquisition, construction, maintenance and operation of Logan Airport be transferred from the D.P.W. to the SAMB.

The Legislature further acknowledged the SAMB’s control of state-owned airport property in St. 1949, c. 431, an act entitled “An Act Further Providing For The Construction By The State Department of Public Works Of Certain Recreation Areas In The East Boston District Of The City Of Boston.” The act authorized the transfer from the City of Boston to the Commonwealth of certain land, including the World War Memorial Park and William Amerna Playground, if the commissioner of airport management, with the approval of the SAMB, certified that said land was necessary for the purposes of Logan Airport. Upon such certification, this land was to become “a part of the General Edward Lawrence Logan Airport and subject to all laws pertaining to said airport.” The City of Boston, on the other hand, was authorized by the act to acquire a substitute recreation area on airport land which the SAMB certified was no longer necessary for airport purposes. St. 1949, c. 431 specifically provided that:

Said new recreation areas ... shall be constructed upon such lands now owned by the commonwealth and under the control of the state airport management board as the commissioner of airport management, with the approval of the state airport management board, shall have certified to the state department of public works are, to the extent of the estate designated in such certificate, not necessary for the purposes of the aforesaid airport. (Emphasis added).

One parcel of land which the SAMB certified as being under its control but no longer necessary for airport purposes lies immediately adjacent to and westerly of the locus. The Commonwealth had acquired this land, a subdivision of lot 1 as shown on the 1932 registration plan mentioned supra, by deed with the locus from the Boston Port Development Company in 1946. Although it had been acquired at the same time and for the same purpose as the locus, the SAMB certified that this land was no longer necessary for the purposes of Logan Airport. Transfer Certificate of Title No. 47164 indicates that this land, shown as lot 5 on a “Subdivision Plan of Land in Boston (East) Massachusetts Department of Public Works), Division of Waterways, Robert B. MacKinnon, District Engineer, May-1954” No. 15259B (sheet 1), had been transferred with other land by deed dated August 2, 1954 and registered on August 6, 1954 to the City of Boston, and that the certificate of title had been cancelled as to that lot.

During the years that the SAMB was in charge of what is now known as Logan Airport, its members clearly believed that the locus, including the Orient Heights Yacht Club, was under the SAMB's control and that was in fact part of Logan Airport. This belief is reflected in the minutes of the SAMB meetings from 1949 to 1956, particularly those dealing with the work to be performed by the SAMB pursuant to St. 1949, c. 745, an act entitled “An Act Relative To The Continued Development Of The General Edward Lawrence Logan Airport At East Boston.” Section 1 of this act provides:

The commissioner of airport management is hereby authorized and directed to further enlarge, extend, improve and develop the General Edward Lawrence Logan Airport, including construction of buildings thereon for hangars, maintenance and repair shops and other necessary facilities, with the approval of the state airport management board; provided, however, that such enlargement, extension, improvement or development of the airport under the provisions of this section shall not permit the extension of the existing bounds toward the town of Winthrop or the mainland of the East Boston district of the city of Boston. [Note 3]

In § 1A of this act, the commissioner of airport management was specifically authorized and directed to:

...fill in the deep channel from Bayswater street, in the East Boston district of the city of Boston to Winthrop bridge; to clear the shore line from said Bayswater street to said Winthrop bridge; and to dig a channel not less than six feet deep a distance of about three hundred feet to Orient Heights Yacht Club, said channel having been filled in because of the pumping of fill for the expansion of said Airport.

The D.P.W., under the authority of the above act, granted the SAMB a license dated August 8, 1950 and recorded in Book 6629, Pages 357-358 on August 17, 1950 to “excavate, place sand fill and drive timber piles for guard rope at Bayswater Street at [SAMB’s] property at East Boston.” Section 3 of c. 745 authorized the issuance of Commonwealth bonds, to be designated on their face Logan Airport Improvement Loan of 1949, to meet the expenditures necessary in carrying out the provisions of the act.

The minutes of SAMB's meetings from 1949 to 1956 indicate the steps taken to fulfill this legislative mandate and describe the location of the work to be done as Orient Heights Yacht Club, Logan Airport or Bayswater Street, Logan Airport. The minutes of one such meeting held on December 9, 1954 contain the following entry:

The Commissioner presented recommendation that negotiations be started with representatives of Orient Heights Yacht Club to establish rental for that property, which is under the jurisdiction of the Board. In checking over status of various properties owned by Commonwealth and under Board jurisdiction, it was found that the Dept. of Public Works, under Chapter 383 of Acts of 1945, acquired from Boston Port Development Co. a certain parcel of land lying between World War Memorial Park and Belle Island Inlet. Building identified as “Orient Heights Yacht Club” is situated on said parcel of land. Matter has been discussed with Airport Engineer and he states that land and buildings referred to and are definitely owned by the Commonwealth and under jurisdiction of SAMB.

The Yacht Club refused to pay any rent for the property it occupied, a small part of lot 1, and asserted that it had acquired title thereto by adverse possession. The minutes of the SAMB meeting held on April 26, 1955 indicate that on that date the Commissioner recommended that the SAMB request the Attorney General to determine who owned this portion of the locus. The recommendation was unanimously approved and the request forwarded to the Attorney General. The Attorney General’s office declined to make such a determination and suggested that the matter be resolved by a petition for declaratory judgment or for land registration. During 1954 and 1955 there was a continuing controversy between the SAMB and the Yacht Club over title to the property occupied by the Yacht Club with the Yacht Club claiming that it had acquired title thereto by adverse possession. The controversy over rent was never settled and is the basis of the petitioner's counterclaim in Miscellaneous Case No. 76397.

At some point in time, the Yacht Club relinquished its claim that it had acquired title by adverse possession to the parcel of land on which it is located, and it began to seek a conveyance of this land from the Commonwealth, which was still shown on Transfer Certificate of Title No. 47164 as the owner thereof. The minutes of a January 14, 1959 meeting of the Yacht Club reveal a discussion of the “land problem” which could be resolved by submission to the Legislature of play by which the Yacht Club could purchase the land. It was noted that “...time is of the essence and action will be taken immediately with the intent of something being done before the new Port Authority takes over.”

In 1960, the Legislature enacted St. 1960, c. 763, entitled “An Act Authorizing The Department Of Public Works To Sell And Convey A Certain Parcel Of Land In The City Of Boston To The Orient Heights Yacht Club.” This act provides as follows:

The department of public works in the name of and on behalf of the commonwealth is hereby authorized and directed to sell and convey to The Orient Heights Yacht Club, subject to the approval of the governor and council, all right, title and interest of the commonwealth in and to the following parcel of registered land in the city of Boston as shown on Certificate of Title No. 47164, issued by the Registry District of the Land Court of Suffolk county and in land court plan No. l5259A, being bounded and described as follows: - Beginning at a point in the southerly line of Thurston street at the northwesterly corner of the granted premises; thence running easterly three hundred and fifty (350) feet by said Thurston street and Bayswater street as shown on said plan; thence turning and running southerly two hundred (200) feet to a point; thence turning and running westerly three hundred and fifty (350) feet to a point; thence turning and running northerly two hundred (200) feet to the point of beginning. Containing seventy thousand (70,000) square feet, more or less, according to said plan.

The deed conveying the right, title and interest of the commonwealth in and to the above-described parcel of land shall be approved as to form by the attorney general.

There has been no compliance with this special act of the Legislature. However, in 1973 the Yacht Club received a tax bill from the City of Boston for an area of 70,000 square feet at 61 Bayswater Street, East Boston. The Yacht Club then wrote the D.P.W. to arrange a conveyance in accordance with c. 763. The department’s Right of Way Bureau responded by requesting a plan showing the area to be conveyed by metes and bounds. A plan entitled “Subdivision Plan of Land, Boston, Mass., East Boston District” dated May 11, 1974 and illustrating the area was prepared in accordance with 1971 Land Court Instructions by John F. Gilmore. The minutes of the June 5, 1974 meeting of the D.P.W. Commissioners contain an entry stating that St. 1960, c. 763 had not been complied with earlier because of an ambiguity in the location of the beginning point of the parcel description. Since this ambiguity has resolved by the above plan, a recommendation was made at the June 5 meeting that the D.P.W. sell and convey, subject to the approval of the governor and council, the parcel of land shown on the plan to the Yacht Club at the price prevailing for such transactions in 1960. It was further recommended that the Right of Way Bureau determine the property’s 1960 value and that it prepare a deed conveying the Commonwealth’s right, title and interest in the property to the Yacht Club, said deed to be approved as to form by the Attorney General. These recommendations were all approved by vote of the D.P.W.

At trial the attorney for the Commonwealth stipulated orally that the Commonwealth is prepared to make a conveyance of the above-mentioned parcel of land to the Yacht Club pursuant to St. 1960, c. 763 and subject to the approval of the governor and council.

The petitioner and its legal counsel first learned of the D.P.W.’s intention to give a deed to the Yacht Club by a letter dated July 24, 1974 and directed to Edward King, then executive director of the petitioner, from certain residents of Bayswater Street, East Boston, who were concerned about the Yacht Club’s potential acquisition of title. By letter dated August 2, 1974, Edward King informed Commissioner Campbell of the D.P.W. that the petitioner claimed title to the land in question by virtue of its enabling act and that it would not agree to any action which would diminish or otherwise affect the petitioner's right or title in the property.

In 1950, a localizer, one of the major electronic components of the airport instrument landing system (the I.L.S.) was built on the northeastern portion of the locus. The localizer facility consists of a building containing electronic equipment and a transmitting antenna which is situated on the extended center line of runway 4R of Logan Airport. The antenna transmits an electronic signal in a vertical plane down the extended center line of the runway. This signal is received in an aircraft making an instrument approach landing to airport runway 4R and gives the pilot directional information. Since its construction in 1950, the localizer has been operated by the federal government, first by the Civil Aeronautics Board and then by the Federal Aviation Administration. Two licenses, issued by the petitioner in 1962 and 1972 respectively as licensor to the United states of America (U.S.A.) as licensee, were admitted into evidence for the limited purpose of shoeing the petitioner’s assertion of control over the land mentioned therein. The petitioner granted the U.S.A. these licenses so that the U.S.A. could operate and maintain the I.L.S. at Logan Airport. The first license dated February 9, 1962 identifies the area to be used for the landing system as “present or future lands of the licensor designated as within the boundaries of the [Logan Airport], or lands not included in the Airport boundaries but to which title or right has been or will be acquired by the Licensor ....” The second license dated May 1, 1972 contains a more specific description of the area to be used for the localizer as “[a] plot of ground approximately 500’ wide fronting on the southerly side of Saratoga Avenue; and extending southerly approximately 50’ to the shore line of Boston Harbor; the westerly line of said plot being approximately 100’ southeast of the southeasterly side of Annavoy Street, situated in the City of Boston, Massachusetts.” Albert V. Bratt, Jr., who was first employed by the D.P.W. in 1948 as Assistant to the Airport Manager and who, at the time of trial, was Chief of Aviation Research and Analysis for the petitioner, identified the localizer on an aerial photograph of Logan Airport and the surrounding area (Exhibit No. 41). A comparison of this identification and the specific description contained in the May, 1972 license with Land Court Plan 15259A, Sheet 1, reveals that the localizer is in fact situated on the northeastern portion of the locus.

In St. 1951, c. 799, an act entitled “An Act Establishing Airport Approach Zones For The General Edward Lawrence Logan Airport,” the Legislature established “airport approach zones” at Logan Airport and prohibited the extension of any “airport hazards” into said approach zones. An “airport approach zone” is defined in said act as "any air space defined and shown as such zone upon a map on file in the office of the state secretary on August first, nineteen hundred and fifty-one, entitled Map of Approach Zones, General Edward Lawrence Logan Airport, Boston, Mass.,” while an “airport hazard” is defined as “any structure or tree which extends into any airport approach zone.” Section 2 of the act states:

It is hereby declared to be the policy of the commonwealth that the existence of any airport hazard endangers the lives and property of users of the airport, and of occupants of land in its vicinity, and effects a reduction of the area available for the landing, taking-off and maneuvering of aircraft, thus tending to impair the utility of the airport and the public investment therein.

Map number 4642, which is dated July 16, 1951 and is on file in the Archives Division of the Office of the Secretary of the Commonwealth, shows that the majority of the locus is, in fact, within the airport approach zone for airport runways 4L-22R and 4R-22L. The Massachusetts Aeronautics Commission was charged with the enforcement and regulation of the provisions of St. 1951, c. 799 and, in addition, was authorized to “take by eminent domain, or acquire by purchase or otherwise, any airport hazard or the land on which it stands, or both.” In an Opinion dated July 22, 1974, the Attorney General found that St. 1957, c. 799 had been repealed by implication upon the enactment of St. 1956, c. 465, and that at that time petitioner became responsible for the regulation of airport approach zones.

The petitioner, a body corporate and politic, was created and placed in the D.P.W. by St. 1956, c. 465, § 2. While it is a public instrumentality and the exercise of its powers is deemed an essential governmental function, it is an entity separate and distinct from the Commonwealth and it is not “subject to the supervision or regulation of the department of public works or of any department, commission, board, bureau or agency of the commonwealth except to the extent and in the manner provided...” It may hold and acquire property, sue and be sued, make contracts and issue bonds, all in its own name.

Section 5 of c. 465 provided that title to the “airport properties” would be “vested” in the petitioner upon the date of the petitioner’s payment of certain sums of money, set forth therein, to the state treasurer. On that date, the SAMB would be dissolved and:

the possession of the airport properties shall be transferred to the Authority and there shall be vested in the Authority the control, operation and maintenance of the airport properties and all rents, tolls, charges and revenues pertaining thereto, provided, however, that the Authority shall assume all of the obligations and have the benefit of all of the rights of the commonwealth in and to all leases, contracts and agreements relating to the airport properties and existing on the date of the transfer.

On February 17, 1959, the petitioner paid the requisite sums and acquired title, control and possession of the “airport properties” which are defined in St. 1956, c. 465, § 1(b) as:

... the General Edward Lawrence Logan International Airport, hereafter called the Logan Airport, and Laurence G. Hanscom Field, together with all buildings and other facilities and all equipment, appurtenances, property, rights, easements and interests acquired or leased by the commonwealth in connection with the construction or the operation thereof and in charge of the state airport management board. [Note 4]

The legislation contains no metes and bounds description of what is described therein as “airport properties.”

A transfer certificate of title was never issued to the petitioner for any part of the locus. However, the locus is included within Logan Airport on two plans, the 1970 and 1973 General Location Plans (Exhibit Nos. 40 and 42) of Logan Airport prepared under the supervision and control of Robert Francis Fuller (Fuller), a registered land surveyor who, at the time of trial had been employed as a Survey Supervisor by the petitioner for the past 14 years. In supervising the preparation of these plans, Fuller relied on two other airport plans, admitted for the limited purpose of showing that they were guides for Fuller in the carrying out of his functions at Logan Airport, the August, 1956 Master Plan prepared by the Thompson-Lichtner Co., Inc. and the December, 1959 Master Plan by the J. E. Greiner Co., together with Land Court Plan No. l5259A. Counsel have stipulated that the Yacht Club is located on the southerly side of Bayswater Street and all of the airport plans indicate that, at the Yacht Club, the northerly boundary of the locus is the southerly side of Bayswater Street.

A Civil Engineering Report, dated December, 1958, was prepared for the petitioner by the J. E. Greiner Company. The map accompanying the report showed the locus as clearly within the airport boundaries and depicted in a shaded tone what was described thereon as “General Edward Lawrence Logan International Airport.” The locus was included in the shaded area. This map was released with a bond “prospectus” issued by the petitioner dated February 1, 1959 in connection with the sale of revenue bonds in the amount of $71,750,000.00 to acquire funds part of which were to be used to make payments to the Commonwealth on account of the “Airport Properties.”

The issues to be decided are whether the locus is included within the term “airport properties” as the same is defined in St. 1956, c. 465, § 1(b) and, if so, whether the petitioner is entitled to the issuance of a transfer certificate of title for the locus.

By virtue of St. 1956, c. 465 § 5, “title” to all “airport properties,” as defined in § 1(b), directly and without any further act of the Commonwealth, “vested” in the petitioner upon the petitioner’s payment of the requisite sums of money to the state treasurer on February 17, 1959. See Massachusetts Port Authority v. Clerk of the East Boston District Court, 350 Mass. 195 , 196 (1966). The respondents admit that the petitioner paid the state treasurer the sums of money required by St. 1956, c. 465, § 5, on February 17, 1959, but they argue that, notwithstanding the direct vesting provision of the act, legal title to any registered “airport properties,” did not directly vest in the petitioner since the petitioner did not comply with the provisions of G. L. c. 185, § 57. Section 57 states, in part:

But no deed, mortgage or other voluntary instrument, except a will and a lease for a term not exceeding seven years, purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties, and as evidence of authority to the recorder or assistant recorder to make registration. The act of registration only shall be the operative act to convey or affect the land, and in all cases the registration shall be made in the office of the assistant recorder for the district or districts where the land lies.

However, as noted above, the Legislature in St. 1956, c. 465, § 5 provided for the direct vesting of the “airport properties” in the petitioner upon the payment of certain sums of money. (Emphasis added). It further provided in § 29 of c. 465 that:

All other general or special laws, or parts thereof, inconsistent herewith are hereby declared to be inapplicable to the provisions of this act, excepting section fifty-one M of chapter ninety of the General Laws, and chapter three hundred and fifty-four of the acts of nineteen hundred and fifty-two as from time to time amended.

A reading of § 5 and § 29 together shows a clear legislative intent that, upon the payment of certain sums of money to the state treasurer, title to all the airport properties, both registered and unregistered, would vest in the petitioner by operation of law without any further action by either the Commonwealth or the petitioner. It should be noted that in St. 1956, c. 465, § 29, the Legislature specifically excepted two legislative acts, G. L. c. 90, § 51M and St. 1952, c. 354, from the general inapplicability provisions of § 29. If it had intended G. L. c. 185, § 57 to apply to the vesting of title to any registered “airport properties,” the Legislature could likewise have excepted § 57. [Note 5]

Since § 57 was not so excepted, the court rules that G. L. c. 185, § 57 was inapplicable to the direct vesting provisions of St. 1956, c. 465 and that, upon the petitioner’s payment of the required sums of money to the state treasurer on February 17, 1959, both legal and equitable title to all the “airport properties,” registered and unregistered, vested in the petitioner by operation of law. See Massachusetts Port Authority v. Clerk of the East Boston District Court, 350 Mass. 195 , 196 (1966); East Coast Aviation Corp. v. Massachusetts Port Authority, 346 Mass. 699 , 704 (1964). [Note 6] The petitioner, therefore, is entitled to the issuance of a transfer certificate of title to those registered lands included within the definition of “airport properties” in St. 1956, c. 465, § 1(b).

Section 1(b) defines “airport properties” as:

... the General Edward Lawrence Logan International Airport, hereafter called the Logan Airport, and Laurence G. Hanscom Field, together with all buildings and other facilities and all equipment, appurtenances, property, rights, easements and interests acquired or leased by the commonwealth in connection with the construction or the operation thereof and in charge of the state airport management board.

To qualify as an “airport property,” the locus must satisfy either the first part of the above definition as property within “the General Edward Lawrence Logan International Airport” or the second part of the definition as property “acquired or leased by the Commonwealth in connection with the construction or the operation [of Logan Airport] and in charge or the state airport management board.” From a consideration of all the evidence, both testimonial and documentary, and by judicially noticing relevant acts of the Legislature to which the court’s attention has been directed, the court finds and rules that at all material times the locus has, in fact, constituted property within “the General Edward Lawrence Logan International Airport.” In reaching this determination, the court has construed § 1(b) liberally in accordance with St. 1956, c. 465, § 27 which states “[t]his act, being necessary for the welfare of the commonwealth and its inhabitants, shall be liberally construed to effect the purposes thereof.” The court, therefore, is not bound by a narrow interpretation of the term “airport properties” which would limit that term to those areas which had already been built upon.

An examination of the facts found by the court reveals that the Commonwealth acquired the locus for the improvement of what is now known as Logan Airport, that since at least 1950 a part of the locus has played an integral role in the functioning of said airport, that the airport management, both before and after the effective date of St. 1956, c. 465, considered the locus to be a part of said airport and, finally, that at all material times the locus has, in fact, been located within the boundaries of said Logan Airport.

By Order of Taking dated December 20, 1945, the Commonwealth, acting through the D.P.W., purported to take the locus from the Boston Port Development Company by eminent domain. However, the court has found that the D.P.W. failed to comply with the required procedures set forth in G. L. c. 79, § 4 for the taking of registered land by eminent domain because the requisite information was never filed for registration and no memorandum of the taking was ever noted on the then outstanding certificate of title. The court, therefore, rules that title to the locus did not vest in the Commonwealth pursuant to the above-mentioned Order of Taking. See L. L. Brown Paper Co. v. Department of Public Works, 330 Mass. 496 (1953). However, the Boston Port Development Company did convey title to the locus to the Commonwealth by deed dated May 20, 1946 and registered on June 27, 1946.

Although the locus was acquired by deed rather than by eminent domain, the statutes, St. 1941, c. 695 and St. 1945, c. 383, and Order of Taking by which the Commonwealth purported to take said locus are evidence of the Commonwealth's intention in acquiring it. The court has found that St. 1941, c. 695 was an act providing for the improvement of the then Boston Airport so-called while St. 1945, c. 383 was an act providing for the continued development of what had become known as Logan Airport. The latter act has an emergency preamble stating, in part, that “...[t]he deferred operation of this act would tend to defeat its purpose, which is to take without delay the necessary steps for the further development of the General Edward Lawrence Logan Airport.” The order of Taking states that it was “for the purpose of improving the General Edward Lawrence Logan Airport to acquire lands to obtain filling material for said Airport and for its further improvement.” Payment of $700,000.00 to the Boston Port Development Company by the D.P.W. for four parcels of land, including the locus, was made by means of the so-called “third airport loan.” These facts clearly indicate the Commonwealth’s intention to acquire the locus for airport purposes. The Commonwealth, however, now argues that it acquired the locus only to obtain fill for the construction of the airport and that at no time did it intend the locus to be a part of Logan Airport. The evidence, however, suggests, and the court finds, that the locus has been at all material times, and is, an integral part, of Logan Airport and that it was not acquired and has not been used solely to obtain fill.

An examination of the documentary evidence indicates that, at least since 1951, the locus has consisted primarily of that portion of Boston Harbor lying between Logan Airport runways 4R-24L and 4L-24R and the mainland of East Boston. A map of the airport approach zones of Logan Airport dated July 16, 1951 and on file in the Archives Division of the Secretary of State's Office in accordance with St. 1951, c. 799 shows that most of the locus lies in the direct path of, and constitutes a portion of the airport approach zone for, runways 4L-22R and 4R-22L. The locus contains only one significant piece of land above the harbor's high water mark and on that land is located a portion of the instrument landing system, built in 1950, for airport runway 4R. The proximity of the locus to airport runways 4L-22R and 4R-22L and the location of almost the entire locus within the airport approach zones of these airport runways, together with the importance of the I.L.S. as an integral part of the overall landing system at the airport, supports the conclusion that the Legislature intended to convey the locus to the petitioner as part of “the General Edward Lawrence Logan International Airport.” The court so rules.

Although it did not immediately proceed to obtain a transfer certificate of title to the locus, and did not attempt to collect rent from the respondent Yacht Club, the petitioner clearly believed that the locus was included within the term “airport properties.” In 1962 and 1972, the petitioner exercised control over a portion of the locus by issuing licenses to the U.S.A. to maintain and operate a portion of the instrument landing system on the northeast corner of said locus. The locus was clearly included within the boundaries of Logan Airport on a map accompanying a Civil Engineering Report prepared for the petitioner in 1958 and also appeared to be part of the airport on two general location plans prepared for the petitioner in 1970 and 1973 respectively. The respondents have failed to rebut the clear inference of this documentary evidence and have failed to introduce any evidence indicating different boundaries of Logan Airport.

The Commonwea1th does argue that St. 1949, c. 745 and St. 1950, c. 760, two acts authorizing the continued development of Logan Airport, indicate the Legislature's intent to prevent further expansion of Logan Airport towards East Boston. Section 1 of both of these acts states “provided, however, that such enlargement, extension, improvement or development of the airport under the provisions of this section shall not permit the extension of the existing bounds toward the town of Winthrop or the mainland of the East Boston district of the city of Boston.” (Emphasis added). The Commonwealth has not drawn the court’s attention to the enactment of any provisions before 1946 which similarly limit the extension of the airport boundaries toward the mainland of East Boston. The court finds and rules that the locus became part of the General Edward Lawrence Logan Airport upon its acquisition for airport purposes by the Commonwealth in 1946. St. 1949, c. 745, § 1 and St. 1950, c. 760, § 1, therefore, do not concern the locus which had been within the “existing bounds” of Logan Airport since 1946.

However, even if the court had determined that the locus was not included within the first part of St. 1956, c. 465, § 1(b)’s definition of airport properties as part of the “General Edward Lawrence Logan International Airport,” said locus would still qualify as an “airport property” since the court finds and rules that the locus was included within the second part of that definition as property acquired in connection with the construction of Logan Airport and in charge of the SAMB. As noted supra, the respondents argue that the Commonwealth acquired the locus solely to obtain fill for Logan Airport. Even if this argument had been substantiated by the facts, and the court finds that it was not, it would support the court’s ruling that the locus was acquired in connection with the construction or the operation of Logan Airport.

The court also finds and rules that the petitioner has sustained its burden of proving that the locus was under the control of the SAMB as of the effective date of St. 1956, c. 465.

In St. 1949, c. 431, the Legislature authorized certain land transactions between the City of Boston and the D.P.W. In particular, the act provided that certain new recreation areas for the City would be constructed upon such lands owned by the Commonwealth and under SAMB's control as the SAMB certified were not necessary for airport purposes. One parcel of land which the SAMB certified as being under its control but no longer necessary for airport purposes lies immediately adjacent to the locus. This land had been acquired by the Commonwealth at the same time, from the same company, in the same manner and for the same purpose as the locus. By another act enacted in 1949, St. 1949, c. 745, the Legislature authorized and directed the SAMB to do certain work at the locus including the digging of a channel to the respondent Yacht Club, “said channel having been filled in because of the pumping of fill for the expansion of said Airport.” Section 3 of c. 745 authorized the issuance of Commonwealth bonds, to be designated on their face Logan Airport Improvement Loan of 1949, to pay for this and other projects mentioned in the act. The D.P.W. also acknowledged SAMB’s control of at least a portion of the locus when it issued the SAMB a recorded license to “excavate, place sand fill and drive timber piles for guard rope at Bayswater street at [SAMB's] property at East Boston.” In 1950, a localizer, one of the major electronic components of the airport instrument landing system, was built on the northeastern portion of the locus. In addition, the minutes of the SAMB meetings from 1949 to 1956 indicate that, during these years, the members of the SAMB believed that the locus was a part of Logan Airport and that it was, therefore, under the SAMB's control. The court, therefore, finds and rules that the SAMB, which was authorized by St. 1948, c. 637 to control and operate Logan Airport, had control over the entire locus at all material times.

The respondent Yacht Club, however, argues that by the enactment of St. 1960, c. 763 the Legislature indicated that title to at least a portion of the locus had not vested in the petitioner. St. 1960, c. 763 authorized and directed the D.P.W. to sell and convey all right, title and interest of the Commonwealth in and to a certain parcel of land, which is part of the locus, to the Yacht Club, subject to the approval of the governor and council. St. 1960, c. 763, unlike St. 1956, c. 465, did not provide for the direct vesting of any title to the land. Rather, the Legislature merely authorized and directed the D.P.W. to issue a release deed to the Yacht Club, if the governor and council agreed.

The court recognizes that the Legislature is presumed to have knowledge of preexisting statutes, Selectmen of Topsfield v. State Racing Commission, 324 Mass. 309 , 313 (1949); and that when a later specific statute is in conflict with an earlier more general statute there may be a repeal to the extent of the conflict. See Clancy v. Wallace, 288 Mass. 557 , 564 (1934). However, the theory of repeal by implication should not apply to statutory grants of land by the Commonwealth since a grantee who has paid valuable consideration to the Commonwealth, as did the petitioner, should not be disseised merely because a subsequent enactment by the Legislature apparently conflicts with the grant. Once title has passed, the grant cannot be revoked. III Amer. Law of Property 12.20 at 232 (A. J. Casner ed. 1952). Cf. Massachusetts Institute of Technology v. Boston Society of Natural History, 218 Mass. 189 , 191 (1914). The Legislature has the right to take land held by the petitioner or other public corporation and to divert it to another public use, but it must clearly express its intention to do so and the taking must be for a public use, not for a private use such as the Yacht Club. See Robbins v. Department of Public Works, 355 Mass. 328 , 330 (1969).

The Yacht Club does not argue that there has been a repeal by implication. Rather, it argues that enactment of the later statute, St. 1960, c. 763, shows that by the enactment of the prior statute, St. 1956, c. 465, the Legislature did not intend to vest title to the land on which the Yacht Club is located in the petitioner. Although enactment of St. 1960, c. 763 is some evidence of the Legislature's intent, such evidence is not conclusive since the Legislature did not warrant that it had any interest in the land but merely authorized the conveyance of all the right, title and interest of the Commonwealth in and to the subject parcel. The Yacht Club, therefore, had to accept the risk that the Commonwealth might not have enforceable title or even the right to possession. United Sugar Company v. Guaranty Trust Company, 254 Mass. 292 , 293-94 (1926). The court finds and rules that by the enactment of St. 1960, c. 763 the Legislature did not intend to diminish its prior statutory grant to the petitioner nor to take from the petitioner any of the land necessary for the successful operation of the airport.

In conclusion, the court finds and rules that the petitioner has sustained its burden of proving that title to the locus, including the property claimed by the Yacht Club, vested in said petitioner on February 17, 1959 and that the petitioner is, therefore, entitled to a transfer certificate of title showing it as the owner of that certain parcel of land described in the amended petition.

Decree to enter accordingly.