REG 39539

January 30, 1979

Randall, C. J.


This is a petition by the Newburyport Redevelopment Authority (NRA) to confirm its title to two parcels of land situated in Newburyport, Massachusetts. Lot 1 is on the northerly side of Merrimac and Water Streets and is shown on petitioner's file plan as having an area of 10.4 acres. Lot 2 is on the southerly side of Merrimac Street and has an area of 14,650 square feet. All parties have stipulated that only the title to lot 1 is in issue in these proceedings. (Tr. I-15). Hereafter, the designation "locus" will refer only to lot 1.

Trial was held in 1978 on June 27, June 28, July 7, July 14, July 17, July 18, July 27. Twenty witnesses testified and 115 exhibits, incorporated herein for the purpose of any appeal were introduced. A view with all parties present was taken on Friday, July 7, 1978.

The intervenors have noted a number of objections on pages 3 and 4 of their supplemental memorandum to the procedures followed by the Land Court and have specifically objected to the Court's denying them permission to file a reply memorandum. The intervenors contend they have been prejudiced because "[t]he briefing process commenced with asymmetrical knowledge of the claims in the case at bar." The Court is uncertain as to just what is meant by this but perceives no prejudice to the intervenors. The petitioner's confirmation case has been straightforward. Primarily, the petitioners have claimed they have title sufficient for confirmation on the basis of the matters disclosed by their abstract of title. The comparatively few exhibits petitioners introduced were in response to the intervenors' arguments. The intervenors' objections to the petition and their legal basis, on the other hand, have been difficult to discern. Even after six days of trial and the introduction of 102 exhibits the intervenors' claims had not been precisely set forth. For that reason the Court requested the intervenors to file an amended answer, and the intervenors complied on July 25, 1978.

Originally, the Court requested that briefs be filed by October 1, 1978. On september 29, 1978 the intervenors filed a motion to extend the time for filing briefs to October 30, 1978. This motion was granted over the petitioner's objection. The petitioner's brief was filed on October 30, 1978. On this date, the intervenors filed a motion to extend the time for briefs to November 2, 1978 and marked up this motion to be heard on November 7, 1978. The Court received the intervenors' brief on November 7, 1978. Page 6 of this 94 page brief requests permission to file a reply brief "so as to narrow and clarify the contested issues." The Court, after reviewing both parties' briefs, determined that reply memorandums were not necessary and therefore did not request any. On November 16, 1978 the petitioner filed a motion to reopen the hearing in order to introduce the "Loan and Grant" contract between the petitioner and the United states and the amendments thereto. This evidence was in response to the inter- venors' argument, set forth clearly for the first time in their brief, that the petitioner had not timely filed its tidelands certificate. This argument borders upon, if it does not surpass, the frivolous. As this issue could be easily disposed of by the introduction of said evidence, the motion was granted. At the hearing on the motion, at which the intervenors were not present though they had received timely notice of the motion and had not requested a postponement thereof, the petitioner indicated it had no objection to the intervenors' filing a response brief on or before November 30, 1978 and that it would file one by then containing the petitioner's argument with respect to the newly introduced evidence. While the Court was of the opinion no further briefs were necessary, the Court allowed the response briefs to be filed. Petitioner's was received on November 30, 1978 and the intervenors' on December 1, 1978.

One further procedural matter remains. The intervenors requested that they be provided with a transcript at county expense. In order to save duplicative public expense, the Assistant Attorney General offered to provide the intervenors with a copy of his transcript. The intervenors agreed to this arrangement, and the Court therefore denied intervenors' motion for the transcript. After receipt of the entire transcript, the intervenors have renewed their request for a transcript at county expense. Brief, p. 42. To persist in this request at this time is uncalled for, in the opinion of the Court. The Court is concerned with and disturbed by what it considers to be unnecessary public expense generated by this litigation. On the one hand is the Newburyport Redevelopment Authority, not a federal agency but largely financed by the federal government, and on the other the intervenors, who likewise are to some extent at least financed by the federal government and who seek to be further financed by it. A number of witnesses whose testimony was irrelevant to this confirmation case were flown from Washington and even in one case from Georgia, presumably at federal expense. Again, an archeolog- ical report was prepared at an expense of almost $80,000 to the federal government and not admitted by the Court.

The time for the filing of briefs and even more briefs is over; the time for decision has arrived. Development of the locus has been delayed for many years already by court proceedings. See part III (A) of the intervenors' brief. Trial of this case was concluded in July 1978, five months ago. The intervenors have had ample opportunity to argue their case in their ninety-four page brief. [Note 1] Further delay is unwarranted, and the Court proceeds to the decision of this case.

I. The Ways to the Waterfront

The intervenors contend that there are twelve ways across lot 1 which have a continuing legal existence and that therefore petitioner's title must be confirmed subject to these ways. These ways are identified on Chalks A and B. They all run perpendicular to the river from Market Square. Evidence of the physical existence of the alleged ways or their use as public ways in the present century is, at best, scanty. Exhibit 32 shows the locus before all the buildings were razed; generally, the spaces between the buildings are the locations of the alleged ways. Witness William Lebovitz testified in July on the third day of trial that the ways could be seen on the ground. The Court, in the presence of counsel and Lebovitz took a view later that same day after the lunch break and could see no evidence of ways currently running to the water; only spaces between existing buildings in some cases paved to the rear of the existing buildings were observed. These spaces were of various widths. There was testimony that some of the ways claimed were only wide enough for a man to pass while carrying a sack on his back. Other exhibits in evidence, for example, exhibits 12, 13 and 20, also show the location of various buildings along the waterfront and the spaces between them. Doubtlessly the public trod upon the open areas in conjunction with their visits to the merchants and businesses in Lot 1. Tr. V - 18, 21, 78. Of course, such usage would not establish public easements by prescription. Bulkanian v. Franklin 248 Mass. 151 (1924). Of interest to the Court was the testimony of William Harris, one of the intervenors and co-counsel and brief writer for the intervenors to the effect that the intervenors were only interested in the making out of the twelve claimed ways running perpendicular to the river from Market Square. Little note was given and no claim was made to possible lateral rights of way running parallel to the Merrimac River of which there was substantial evidence. There was no question that from approximately 1850 on, a railroad ran parallel to the river over part of the locus and a large coal pocket was erected thereon parallel to the river. This was in constant use until approximately 1930. No claim is made that there was any right of way generated by this use. Much was made or sought to be made, of possible use by aborigines, but nothing was made of this more recent use. But regardless, whether or not these ways ever existed they no longer do so. The Court concludes for the reasons set forth herein that insofar as these alleged rights of way were private, they were terminated by an eminent domain taking and insofar as they were public, by an order of discontinuance.

The petitioner derives its title to lot 1 across which the alleged ways run, from an eminent domain taking referred to throughout the trial as taking Number 3. This taking is dated July 20, 1972 and is recorded in Book 5888, Page 81, Essex South District Registry of Deeds. It covers

any and all easements, rights and licenses appurtenant thereto••••and including the fee to the center of any and all public streets, highways, and public ways, contiguous or adjacent to said area or areas, but excepting••••any and all easements of public highways and public easements of travel in and to any and all streets, highways and public ways••••

Abstract, sheets 3b and 3c. Thus, this taking terminates all private rights of way.

Public rights of way excepted from the eminent domain taking, were not terminated by this instrument. They were terminated, however, by the City of Newburyport's order of discontinuance dated March 28, 1977 and recorded in Book 6334, Page 384 Essex South District Registry of Deeds. Abstract, Sheet 15-15L. The City Council's order discontinues

any and all public rights in any and all portions of streets, highways, ways or landings contained within [locus]••••

Certain enumerated ways, not now in contention, were preserved. Thus to the extent, if any, that rights of way to the waterfront, whether public or private, had been established by usage and custom, see the intervenors' brief, p. 64, they were extinguished either by the eminent domain taking or by the order of discontinuance. The Court so finds.

The intervenors have advanced a number of reasons why the eminent domain taking and the order of discontinuance were ineffectual to terminate the alleged ways. The Court has carefully considered all arguments in the intervenors' brief and supplemental brief, difficult as they are to follow, and has found them to be without merit. The Court will next attempt to meet the major arguments set forth by the intervenors.

First, intervenors appear to assume, Tr. II-53, that the eminent domain taking is subject to the requirements of G. L. c. 79, §5A which provides:

No historical or archeological landmark certified under the provisions of section twenty-seven of chapter nine and no property owned, preserved and maintained by any historical organization or society as an ancient landmark or as property of historical or antiquarian interest shall be taken without leave of the general court specially obtained.

Exhibit 15, a plan of the project area by Metcalf and Eddy dated February 11, 1970, shows the Market Square Historic District outlined in red. Apparently the intervenors believe that this designation as an historic district brings the area within the operation of G. L. c. 79, §5A requiring authorization by the General court before the area can be taken by eminent domain and devoted to other purposes.

It is clear that there are two means by which the requirements of c. 79, §5A may be invoked. The first is by certification under c. 9, §27. This fails because there is no evidence before the Court that the ways in question have been so certified. Proof of such certification would be by production of a certified copy of the certificate which is required by c. 9, §27 to be filed in the registry of deeds. The second means fails because there is no evidence that any of the alleged ways are "owned, preserved and maintained by any historical organization or society."

The intervenors did introduce two certificates, exhibits 35 and 36, which indicate that the Custom House, located on the north side of Water Street east of the project area, and the Market Square Historical District, located as shown on exhibit 15, have been accepted for inclusion in the National Register of Historic Places. "The National Register is the official list of the Nation's cultural resources worthy of preservation and includes districts, sites, buildings, structures and objects significant in American history....The National Register...is administered in Massachusetts by the Massachusetts Historical Commission." Exhibits 35, 36. Thus, while the intervenors have produced some evidence that the Custom House and the Market Square Historic District are of historical interest, this, by itself, is not sufficient to bring any of the alleged ways within locus or adjacent to the national register properties within the protection of c. 79, §5A.

Secondly, in part I of their brief, the intervenors assert that the March 28, 1977 order of discontinuance is void for failure to comply with notice and hearing provisions of G. L. c. 82, §§1, 3, 17 and c. 9, §27. Intervenors contend that property owners in lot 1 and in the Market Square Historic District received no prior notice of the discontinuance of the alleged ways to the waterfront which notice, the intervenors argue, was required under G. L. c. 82, §§1, 3, 17. While no public notice of discontinuance was given, Tr. III-111, none was required. It is G. L. c. 82, §21 which authorizes a city council to discontinue town ways and no special notice or hearing procedures are required. Hardy, Municipal Law and Practice 481 n. 20 (1959). Chapter 82, §§1, 3, 17 on which the intervenors rely relate to the County Commissioner and to the laying out of county highways, not to town ways. Exhibit 9, a letter from the Highway Division of the Department of Public Works, indicates that they have no interest in locus. On the evidence before it, the Court concludes and finds that the twelve alleged ways with which the intervenors are concerned, to the extent they ever existed, were town ways, not highways, and were properly discontinued under G. L. c. 82, §21.

Third, the notice and hearing provisions of c. 9, §27 are not applicable. This statute provides that a landmark certified under section 27 shall not be altered "in such a manner as would seriously impair its historical values without permission of the commission.... Before granting such permission the commission shall hold a public hearing." However, as discussed on pages eight and nine of this opinion, there is no evidence that any of locus has been certified under c. 9, §27 as an historic landmark and thus the public hearing provision of c. 9, §27 is inapplicable.

Even if c. 9, §27 were applicable, the Court would conclude there has been no violation of its provisions for this section prohibits only those alterations which would "seriously impair" the historical value of the certified landmarks. The Court finds that the order of discontinuance did not seriously impair the historical value of the national register properties. The ways had ceased to exist physically long before the date of the 1977 order of discontinuance so that the order of discontinuance had no effect whatsoever upon them. Exhibit 33, a photograph taken between June 1972 and August 1973, shows locus. It appears as a basically barren parcel of land along the waterfront. Thus locus was in substantially the same condition on the day of the view. The Court saw no indication of any ways to the waterfront.

Fourth, the intervenors contend that petitioner has failed "to comply with notice provisions to the Massachusetts Historical Commission under Advisory Council consultation regulations (36 C.F.R. Part 800, Exhibit 38)" compliance with which is a duty under federal law and a HUD Loan and Grant Contract. Likewise they claim that the City of Newburyport has not followed these consultative procedures thus violating a "duty of state law and federal duty as condition of receipt of Community Development Block grants."

Brief, p. 6. The intervenors assert that notice to and consultation with the President's Advisory Council on Historic Preservation is required before any alleged ways within and connecting the Market Square Historic District may be discontinued. Brief, p. 34.

Neither 16 U.S.C. §470f nor its implementing regulations are applicable on their face to the petitioner or to the City of Newburyport. Section 470f sets forth a procedure for protecting National Register properties. It provides:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any state and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470; to 470n of this title a reasonable opportunity to comment with regard to such undertaking.

By its very terms, §470f applies to federal departments or agencies. The petitioner and the City of Newburyport are not such and hence not subject to the provisions of §470f. Implementing regulations, see 36 C.F.R. Part 800, exhibit 38, prescribe the procedures to be followed by the addressees of 16 U.S.C. §470f.

The intervenors also refer to 24 C.F.R. Parts 58 and 570. These are regulations of the Department of Housing and Urban Development setting forth procedures with which applicants for urban renewal funds are to comply. Section 58.24 directs applicants to consult with the Advisory Council on Historic Preservation pursuant to 36 C.F.R. Part 800 when National Register properties are affected by the urban renewal project. The question whether or not HUD has properly disbursed funds to petitioner in compliance with its regulations does not affect the validity of an independent legal action of the City of Newburyport, namely the discontinuance of the alleged ways pursuant to G. L. c. 82, §21, and hence does not affect petitioner's title to locus. Thus, that question is not a proper matter for the Land Court's determination in a confirmation proceeding.

Fifth, in part J of their brief, the intervenors argue that by reason of certain representations made by an executive director of the petitioner, the petitioner is estopped from asserting that the ways to the waterfront have been discontinued by the order of discontinuance. With respect to this contention the Court finds as follows:

On or about September 11, 1967 there was a public meeting with respect to the urban renewal project. At that meeting Mr. Silk, the then executive director of petitioner, stated: "We will take the rights of ways but not the right of the public to pass on them." This statement was made in the context of a discussion of physically existing ways which are described in Order of Taking number 1. (Tr. III-9). These ways do not include any of the ways at issue in this proceeding. The Court concludes there was no misrepresentation made by the petitioner or its agents with respect to ways in lot 1.

Sixth, in part H of their brief the intervenors argue that the action of the City of Newburyport and the petitioner under their cooperative agreement to discontinue public easements in March 1977 constituted inverse condemnation of the intervenors' property interests. Were this issue properly before the Land Court, the Court would find on the record before it no taking of any interest for which compensation must be paid. The intervenors have not established that any of them ever held the type of interest entitling them to damages. Even if this were so the jurisdiction over the award of damages stemming from an eminent domain taking rests with the Superior Court, c. 79, §14, not the Land Court.

Seventh, the intervenors contend that the Newburyport City Council did not have authority to discontinue the ways to the Waterfront to the extent that they constituted public landings or were appurtenant to public landing places. The intervenors cite Bennett v. Clemence, 88 Mass. 10 (1863), Commonwealth v. Tucker, 19 Mass. 44 (1823) and Kean v. stetson, 22 Mass. 492 (1827). These cases were all decided before the enactment of G. L. c. 28, §§14-19 which authorizes cities and towns to lay out and discontinue public landing places. See Cape Cod SS. Co. v. Provincetown, 295 Mass. 65 , 67 (1936). The order of discontinuance, by its stated terms, covers landings. The Court has already concluded on pages 10-11 that the alleged ways to the extent they ever existed, were town ways and were thus properly discontinued under c. 82, §21.

However, if legislative authorization were required, it was supplied by St. 1873, c. 136 and St. 1889, c. 247. These statutes authorize the City of Newburyport "to discontinue all the common landing-places, known as town and public landings" situated between designated points which embrace lot 1.

Eighth, a further reason the intervenors advance for the continuing legal existence of these ways is that they are the object of contracts of a perpetual charitable trust, which may not be impaired by the petitioner's eminent domain taking or the City's order of discontinuance. The Court has reviewed the documents upon which the intervenors rely and finds that none of the twelve alleged ways are the subject of a charitable trust.

Ninth, the intervenors argue in part V(B) of their brief that locus must be registered subject to certain "liberties of the town" generally involving access to and use of the shore. They argue that these "liberties" are inalienable, are protected under Mass. Const. Part 1, arts. I and X, are beyond the power of the General Court to abrogate and are of such a fundamental character that they may not be extinguished by an eminent domain taking or impaired in any manner short of a constitutional amendment. Brief p. 61. The exact nature and extent of these liberties is never delineated though some are listed on page 58 of the brief. Nor is their source precisely identified though the intervenors have at one time or another, referred to the Magna Carta, the colonial ordinances, the Province Charter and various ancient documents. The Court has examined all of these sources and concludes no such inalienable liberties can be traced to them.

The intervenors have directed the Court to specific passages in the Magna Carta, brief page 14, but these references by themselves are not helpful for while the great principle of the Magna Carta, the rule of law, endures, all of its detailed provisions certainly do not.

Nor do the laws and liberties embodied in the colonial ordinances confer inalienable rights. The rights set forth therein were never contemplated as being unchangeable as can be seen by Epistle to the Book of the General Lawes and Libertyes. J. Cushing, I The Laws and Liberties of Massachusetts 1641-1691 6 (facsimile edition 1976); G. Haskins, Law and Authority in Early Massachusetts 138 (1960). To the extent the provisions of the colonial ordinances remain in force by virtue of Massachusetts Const. Part II, c. 6, art. VI providing for the continuation of certain colonial and provincial laws, they may, under the same constitutional provision, be altered or repealed by the legislature. While the fishing, fowling and navigation privileges to which the intervenors refer on page 58 of their brief are embodied in the colonial ordinances and still remain in force, it is clear that under the colonial ordinances the owner of the tidal flats was empowered to exclude the public by reclaiming the flats or building structures thereon. Henry v. Newburyport, 149 Mass. 582 , 585 (1889); M. Frankel Law of Seashore, Waters and Water Courses 25 (1969). See also Boston Waterfront Development Corp. v. Commonwealth, Mass. App. Ct. (1978) [Note 2] Hence, the colonial ordinances cannot be the source of these alleged inalienable liberties.

The third enumerated source, the Province Charter, does appear to embrace one of the "liberties" to which the intervenors refer on pages 57 and 58 of its brief, namely the right to set up facilities on the shore for drying and salting fish. However, this right could only be exercised upon lands "lying waste and not then possessed by particular proprietors." Attorney General v. Tarr, 148 Mass. 309 , 320 (1889). Locus does not fit this description. In any event, it is settled that these rights did not survive the adoption of the Massachusetts Constitution and hence no longer exist. Id., 321.

The fourth source, the ancient documents, many of which are contained in exhibit 98, will be discussed subsequently but it may be said at this time that they neither recognize nor create inalienable rights of access to the waterfront. The ways laid out by these documents, to the extent they had any continuing legal existence, were terminated by the Order of Discontinuance dated March 27, 1978.

Lastly, the intervenors seem to suggest, brief pages 60-61, that these "liberties of the town" including the rights of access to and transportation between the water, wharves and mercantile areas of the town, inhere in the very nature of a seaport community and continue to exist regardless of the subsequent development of the community and even after it has changed from a seaport to a commercial-industrial city. The intervenors have cited no case recognizing this generalized transit right. G. L. c. 88, §14 requires maritime municipalities to layout at least one common landing place. There is no evidence that the City of Newburyport is currently in violation of this statute or that the urban renewal plans as contemplated will violate this provision. See Tr. III-81. Other than the provisions for access to the sea inherent in c. 88, §14, rights of way to the water must be founded upon grant or prescription and are subject to eminent domain proceedings.

Tenth, the intervenors argue in part V(C) of their brief that certain of the ways to the waterfront are the subjects of contracts in perpetual charitable trust which cannot be impaired by the legislature. U.S. Const., art. I, §10, clause 1. The intervenors apply this argument to ways No. 3, 4, 7 and 11, the extension of central wharf in 1833-34 (way No. 4), ways 5 and 6, and to Riverside Park (way No. 1). These will be examined separately.

1. Ways No. 3, 4, 7, 11.

Documents granting the privilege to construct wharfs at ways No. 3, 4, 7 and 11 were introduced into evidence as portions of Exhibit No. 98 and are summarized on page 59 of the intervenors' brief. These documents are records of the actions taken at the town meetings which granted land (or permission to build upon land, depending on the interpretation of the grant) to be used for a wharf to specified individuals. Conditions of the grants were that the public have access to the subsequently built wharfs. These reservations of rights by the grantor, the town of Newbury, [Note 3] as a condition to the granting of the land do not create contracts of perpetual public trusts binding the grantor that the area forever be used as a public wharf. The grantor may be authorized to release the condition upon which the grant is made. Cf., Boston Waterfront Development Corp. v. Commonwealth, supra. They are in no sense analogous to the cases the intervenors cite on page 62 of their brief where governmental entities as grantees of gifts were bound to either respect the condition of the gift or to forfeit it. To the extent (if any) that town ways were created by these grants, these ways were subject to being discontinued as was in fact done by the order of discontinuance dated March 28, 1977.

2. Extension of Central Wharf.

At a town meeting on september 16, 1883, the proprietors of Central Wharf were granted permission to "improve and straighten the entrance to said wharf as a public highway, at their own expense" and the selectmen were authorized to lay out said way at the proprietors' expense and to receive bonds of indemnity from them. Exhibit No. 34, p. 29; Exhibit No. 98D (28). These actions were accomplished, and the proprietors in their bond declared that they did not claim the land over which the way passed as their own but claimed only "the same privileges with our fellow townsmen of passing and repassing to and from Central Wharf...." Exhibit No. 34, p. 30. The intervenors appear to characterize the statement in the bond quoted above as a contract of perpetual public trust between the proprietors and the town that the way laid out be forever kept open. Brief p. 63. The Court disagrees. Rather, it is an acknowledgment by the proprietors that the way to Central Wharf is a public way. As a town way, it was subject to being discontinued and this was accomplished by the order of discontinuance.

One of the intervenors claims a visual easement to the Merrimac River by preservation of the public easement to Central Wharf, way number three. Brief p. 5. The grant of an easement of light, air, or view is not easily implied, and express words are needed to create such an easement. Restatement, Property §452 comment a; Keats v. Hugo, 115 Mass. 204 (1874); 3 Tiffany. Real Property §§715, 783 (3rd ed. 1939). Upon all the evidence before it, the Court finds no easement of view.

3. Ways 5 and 6

The intervenors claim a right of way under a deed from the Proprietors of the common and undivided lands in Newbury, West Newbury and Newburyport to the inhabitants of Newburyport dated October 28, 1826 and recorded in Book 249, page 200. The deed grants all of the common and undivided lands situated in Newburyport subject to the following:

the road of one and one-half rod wide (25.25 feet) laid out on the Easterly side of the middle Shipyard or Market landing so called from Merrimack Street to the River shall be kept open and not encumbered with any building forever••• said reservation being for Public use and at no time hereafter to be appropriated to the private and exclusive rights of said Inhabitants••••[W]e in our capacity and for said proprietors and in their behalf do hereby covenant and agree to and with said Inhabitants for themselves and their successors that subject only to the reservations aforesaid they shall forever hereafter hold and possess the granted premises free and clear from all claim or demand of said proprietors and freeholders forever.

Abstract, sheet 19. The location of the way referred to in the above deed would be to the east of the fire station in the area of Railroad Avenue as shown in Chalk B. To the extent the proprietors' deed reserved a public right of way, it was terminated by the order of discontinuance. Private rights in this way, if any there be, were extinguished by the eminent domain taking. The City's fee interest in the way, if it survived the eminent domain taking, was transferred to the petitioner by the City's release of interests dated March 28, 1977, abstract sheets 17 to 17F.

4. Riverside Park.

The area known as Riverside Park is located along the western boundary of lot 1. The area was formerly known as Somerby's Landing and or Green Street Landing. See Exhibit No. 98B (14) and (15). At a meeting of the freeholders and proprietors of undivided land in the town of Newbury on July 12, 1751, Somerby's Landing Place was "Voted to the town's use...to lay for Ways and landing, forever and no more of said Ways to be sold or be used any other ways But as in this Vote Expressed." Exhibit No. 98B (10); Exhibit No. 34, Huse Report page 12. The intervenors characterize this vote as a contract of dedication and argue the dedication was accepted by the town on March 10, 1752 as evidenced by Exhibit No. 98B (11), a document found in the Town of Newbury Way Book, 1719-1885, Pier Deeds, Book #33, p. 53, which states in material part: "as the Proprietors of this Town at their last meeting voted to Grant the Landing at Moodys & Somerbys so called to Lay for Public Ways & landings for the town's use - We have laid out the same for the uses•••[A]t the above meeting these ways were Excepted and ordered to be Recorded." Thus, intervenors argue, a contract in perpetual charitable trust was created. Brief, page 62.

By Acts 1889, c. 247, §2, Somerby's Landing was set aside to be "used and improved only as a public park." On June 5, 1889, the City of Newburyport adopted an order that this park be designated as Riverside Park. Exhibit No. 98B (13).

St. 1960, c. 94 authorized the City of Newburyport to use Riverside Park for other municipal purposes. The act provides:

The city of Newburyport may, by a vote of the city council with the approval of its mayor, use for such municipal purposes as it may from time to time determine, all or any portion of the land held by said city for park purposes and knovm as Riverside Park. Said city may restrict the use of said land to its inhabitants, and may adopt ordinances, not repugnant to law, relative to the use, care, regulation and control of same for such purposes.

On April 4, 1960 the City Council voted to accept chapter 94 of the acts of 1960, abstract, sheet 23, and on June 4, 1962, voted to establish Riverside Municipal Parking Lot in the area formerly covered by the park. See Exhibit No. 98B (17); abstract, sheet 24. On November 13, 1967 the City Council voted to transfer the parcel to the petitioner, abstract, sheet 20c, and by deed dated November 20, 1967 conveyed the Riverside Park area to the Newburyport Redevelopment Authority. Exhibit No. 98B (18); abstract, sheet 20.

While the intervenors have not objected to St. 1889, c. 247, §2, they argue that St. 1960, c. 94 is void as an impairment of a contract of perpetual public trust.

It is well established that a municipality which holds title to land utilized as a park as an unconditional owner in fee simple may be authorized by the General Court to divert the park land to other use. Dunphy v. Commonwealth, Mass. (1975) [Note 4] and cases cited therein. Here, the requirement that the area known as Riverside Park be used for park purposes was imposed by the General Court, St. 1889, c. 247, §2, not by the terms of a private gift or devise, see for example Salem v. Attorney General, 344 Mass. 626 (1962), and thus may be removed by the General Court, as St. 1960, c. 94 accomplishes.

The intervenors argue, at Page 76 that the "Proprietors must have intended to create a trust to effect their conveyance, and put it beyond the capacity of the General Court. To authorize its sale is to impair a public trust contract." No such intention can be countenanced. It has never been doubted that towns "might be required to devote any land or territory granted to them (which had not been granted to private persons) to such uses as the Legislature might thereafter by law designate." Attorney General v. Tarr, 148 Mass. 309 , 312 (1889).

In construing the 1751 vote, it must be remembered that the proprietors of the undivided lands acted in a quasi-official capacity and hence interpretation which might be accorded to language used in private conveyances are not necessarily applicable to the proprietors' votes.

All lands were first granted by the Crown to the Governor and Company of the Massachusetts Bay in New England, and by them parcelled out either to individuals, to settlements or towns, and later to bodies of proprietors. Lynn v. Nahant, 113 Mass. 433 (1873). The object of the grants to proprietors was not private profit but the actual settlement of unoccupied lands and the formation of new plantations and their subsequent incorporation as towns. R. Akagi, The Town Proprietors of the New England Colonies 10-11 (1924); Attorney General v. Tarr, 148 Mass. 309 , 311 (1889). Lands within the boundaries of a town which had not been expressly granted by the colonial government to the town or to individuals were not held by the town as its absolute property. Lynn v. Nahant, 113 Mass. 433 , 448 (1873). Rather, the town and later its proprietors merely had the power to manage and dispose of said lands. Id., 448-449. Thus, a conveyance from the proprietors was necessary to establish title in the town and this was accomplished by the proprietors' 1751 vote and the town's acceptance. The significance of the language respecting use in the vote is to establish that the granted land is henceforth public land and thus no longer available to be distributed to any individual proprietor or private person. See Attorney General v. Tarr, 148 Mass. 309 , 312-313 (1889). It is not a limitation upon the town's authority over public property. As the intention expressed in the vote was that the property be used for public purposes and as Riverside Park has since been devoted to public purposes there has been no use inconsistent with the grant.

In addition to its impairment of a contract of perpetual public trust argument, the intervenors have advanced a number of other reasons in part V(F) of their brief why Riverside Park may not be used for other than park purposes.

The intervenors argue that St. 1960, c. 94 does not authorize the City to change the use of Riverside Park from park purposes because the statute does not meet the requisite specifications of the prior public use doctrine. The prior public use doctrine is designed to prohibit the diversion of public lands devoted to one public use to an inconsistent public use in the absence of legislation authorizing the change of use. The requirements that a statute must satisfy in order to authorize the diversion of park lands to other uses are set forth in Robbins v. Department of Public Works, 355 Mass. 328 , 331 (1969), cert. den. 429 U.S. 1045:

[I]t is essential to the expression of plain and explicit authority to divert parklands•••to a new and inconsistent public use that the Legislature identify the land and that there appear in the legislation not only a statement of the new use but a statement or recital showing in some way legislative awareness of the existing public use. In short, the legislation should express not merely the public will for the new use but its willingness to surrender or forego the existing use.

St. 1960, c. 94 which is set forth in material part on page 27 satisfies these requirements. The land affected, Riverside Park, is identified in the statute; a statement of the new use, "municipal purposes," appears; and a recognition of the prior park usage, "land held by said city for park purposes and known as Riverside Park" clearly appears.

The intervenors argue that the authorization in St. 1960, c. 94 to use Riverside Park for "such municipal purposes as it [the city of Newburyport] may from time to time determine" is unconstitutionally vague, an unconstitutional delegation of legislative authority, and violative of Massachusetts Const. Amndt. Art. II, §7. The proposed use, for municipal purposes, is not vague. It is an authorization to use the park for any lawful public purpose. Nor does the statute violate Mass. Const. Amndt. Art. II, §7. That section contains limitation on municipal powers, one of which is disposing of parkland, but specifically provides that these powers "may be granted by the general court in conformity with the constitution...."

In the circumstances of this case there is no unconstitutional delegation of legislative authority. The case of Gould v. Greylock Reservation Commission, 350 Mass. 410 , 422 (1966) is not a suggestion to the contrary. The park land in this case, a comparatively small area, differs considerably from the extensive and unique land involved in the Mount Greylock case. Secondly, there is a difference in the delegatees involved. Where the delegatee is not directly accountable to the electorate as in the Greylock case, there may be a need for a more explicit standard. Furthermore, there was some doubt whether the project allegedly authorized by the statute in question was in fact a public purpose, Greylock at 427, a question not present in this case.

Next, the intervenors argue the purported sale of Riverside Parking Lot to petitioner is invalid because the City did not provide prior public notice of the sale in accordance with c. 79, §5. Brief p. 76. While no public notice was given and no public hearing was held prior to the City's conveyance of Riverside Parking area to petitioner, none was required. Presumedly the intervenors rely on that portion of c. 79, §5 which provides:

"No portion of a...park dedicated to the use of the public or appropriated to such use without interruption for a period of twenty years...shall be taken or used for a public way...or for altering or widening the same, except with the consent of the city...in which such... park is situated after public notice, given in the manner provided in cases of the laying out and alteration of highways...."

With the acceptance of St. 1960, c. 94 and the establishment of Riverside Municipal Parking Lot by the city council in 1962, the land in question ceased to be a park. Thus, c. 79, §5 is not applicable. The Court is not impressed by the intervenors' argument, brief p. 74, that the erection or retention of several benches on the northerly end of the parking lot area overlooking the Merrimack River as shown in Exhibit 58, or the use of the northerly edge for launching purposes, or any other use of the area disclosed by the evidence brings it within the requirements of c. 79, §5 and the Court so concludes. Such casual use does not establish a park.

II The Tidelands

The intervenors challenge petitioner's title to locus arguing petitioner did not acquire title to the rights of the Commonwealth in the tideland area of locus under St. 1967, c. 702 because of infirmities in and a failure to comply with said statute. Brief, part V(G). Section 2 of chapter 702 states that "all right, title and interest of the commonwealth in and to the tidelands within [the project area] shall vest in the Authority" subject to enumerated conditions. Three of the enumerated conditions were that petitioner was (1) to enter into a loan and grant contract with the United States with respect to an urban renewal project plan for the area described in section 1 of chapter 702; (2) to file within thirty days after the execution of said contract "in the Essex south district registry of deeds a certificate by the Authority that such contract has been so executed ..."; and (3) to give written notice of this filing to the department of public works. The intervenors argue these conditions have not been complied with. The petitioner entered into a loan and grant contract with the United States on August 30, 1966. Exhibit 114. This contract did not include all of the area described in section 1 of St. 1967, c. 702. On September 26, 1969, petitioner and the United States entered into an amendment of the loan and grant contract, exhibit 115, which deleted the original property description and inserted a new description in conformity to the description in St. 1967, c. 702, §1. The required certificate was filed on October 16, 1969 well within the statutorily required thirty days of the execution of a loan and grant contract covering the property described in St. 1967, c. 702, §1. See abstract sheet 10. Notice of said filing was sent to the Commissioner of Public Works. Abstract sheet 11. The Court concludes the above three conditions have been fully satisfied. Thus, in accordance with St. 1967, c. 702, §2 title to the tidelands vested in petitioner "[o]n the thirtieth day after the executiont" of the loan and grant contract covering the area described in §l, that is on October 16, 1969.

St. 1967, c. 702, §2 further provides:

Upon receipt of notice of the filing of such certificate, the [department of public works], at the expense of the Authority, shall procure a title examination to determine the right, title and interest of the commonwealth in the area vesting in the Authority under this act and also a real estate expert to appraise the value of the same. The Authority shall pay the commonwealth for the right, title and interest so vesting such compensation as, after consideration of such appraisal, may be recommended by the department and determined by the governor to be just compensation therefor.

The petitioner stipulated that the appraisal and title examination have not yet been performed and agreed that its title be confirmed subject to the rights of the Commonwealth under St. 1967, c. 702, (Tr. I : 18).

It is clear from section two that title is to vest in petitioner on the thirtieth day after execution of the loan and grant contract and that the procedures set forth above are to be accomplished thereafter. The fact that these requirements remain uncompleted does not affect petitioner's title.

The intervenors further argue, brief pp. 80-83, that St. 1967, c. 702 is unconstitutional because it breaches contracts of public charitable trust and contracts guarantying liberties of the town. These arguments have been addressed earlier and found wanting. To reiterate the Court has found no contracts of perpetual public trust or impairments thereof.

The intervenors next argue that filling and bulkheading undertaken by petitioner in 1977-1978 are not authorized by St. 1967, c. 702 or the amendments thereto. St. 1972, c. 771 and St. 1974, c. 522 amended section three of St. 1967, c. 702 by extending the time for obtaining irrevocable tidelands licenses from January 1, 1973 to January 1, 1977. These amendments do not affect petitioner's title to locus. The intervenors' argument is that the 1974 amendment is subject to Massachusetts Const. Art. XCVII and therefore required a two-thirds roll call vote for its passage. While it is questionable whether the intervenors may challenge the legality of the filling of tidelands in this confirmation proceeding, the Court will consider the merits of the intervenors' argument.

Art. XCVII provides:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The general court shall have the power to enact legislation necessary or expedient to protect such rights.

In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

From the last paragraph it is seen that it is land and easements acquired for the enumerated environmental purposes which are protected by art. 97 and which require a two-thirds roll call vote for their disposition. The 1974 amendment provides for an extension of time for obtaining an irrevocable tidelands license; it does not dispose of the type of property interest protected by art. 97 and therefore is not subject to art. 97.

The petitioner and the Commonwealth have filed requests for findings of fact and conclusions of law. Many of these are irrelevant to the outcome of this case. However, the Court passes upon them as follows.

Petitioner's findings of fact numbers 2, 3, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33 are granted.

With respect to number 1, the Court has already found on page 11 that the only public ways laid out over lot 1 were town ways and were properly discontinued under G. L. c. 82, §21. Numbers 4 through 7 and 11 are concerned with filling of the tidelands. With respect to these numbers the Court notes that the waterfront was at one time closer to Water and Merrimac Streets than it now is (Tr. I-38) and that filling of lot 1 north of these streets commenced at an early date. The exact date is immaterial to this action, and therefore number 6 is denied.

Numbers 26 and 27 are concerned with the use of Riverside Park. The Court finds as follows:

In the period 1925 to 1940 the area comprised by Riverside Park was (Tr. 5-13, 14) tall grass and swampland. Occasional duck hunting also occurred in the area. Subsequently the area was gravelled and hot topped. Benches were located at the northerly end facing the water and at the southerly end facing Merrimac Street. The latter were used by the public while waiting for street cars and buses. (Tr. V-15). After 1945, the area was used primarily as a parking lot. A boat rental and repair business was operated from the northerly end. (5-16)

Petitioner's request for conclusions of law are granted.

The Commonwealth's requested findings of fact numbers 1 through 17, 19, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 are granted. Numbers 18, 20, 21, 22, 33 are denied.

The Court rules that petitioner is entitled to a decree confirming its title to the locus as described in the petition and shown on the file plan free of ways as claimed by intervenors subject to the stipulation of petitioner and respondent Commonwealth of Massachusetts filed January 3, 1979 with the Land Court and subject to such other matters not here in issue as may be indicated in the abstract of title filed herein.

Decree accordingly.


[Note 1] As late as January 10, 1979 the intervenors filed a notice of objection to the stipulation between the petitioner and the Commonwealth of Massachusetts. The Court finds that the intervenors have no standing to question the action of the Attorney General.

[Note 2] Mass. App. ct. Adv. Sh. (1978) 354, 359-360.

[Note 3] The area now encompassed by Newburyport was part of Newbury until 1764.

[Note 4] Mass. Adv. St. (1975) 2361, 2368.