This matter was remanded to the Land Court by opinion of the Appeals Court dated February 22, 1980, Newburyport Redevelopment Authority vs. Commonwealth of Massachusetts and the Committee on Civic Right of the Friends of the Newburyport Waterfront, Mass. App. Ct. (1980) [Note 1] for further proceedings required by parts 2(b) and 3 of the appellate court's opinion.
A hearing was held on September 10, 1981 limited only to the items set forth above. A stenographer was sworn to properly record and transcribe testimony taken from three witnesses, all sworn. Four more exhibits were introduced into evidence and are incorporated herein in the event of an appeal.
Further conferences and hearings were held on the matter with all parties participating on January 27, April 24, April 26, 1982. Four additional exhibits were admitted at these hearings. A "Joint Motion of All Parties" was filed and a hearing held thereon, on May 10, 1982, attended by all parties at which time the language of a judgment of confirmation was agreed to by all parties, and the Court was requested to issue a judgment in the suggested form. At this hearing a new final revised file plan entitled ''Plan of Land in Newburyport, Scale 30' to the Inch Pembroke Land Survey Company, P.O. Box 491 Newburyport Mass. Oct. 22, 1976, April 23, 1982" was admitted into evidence as Exhibit 209. All these exhibits are likewise incorporated herein by reference in the event of an appeal.
The Court will attempt to set forth the general principles applying to the present matter derived from Boston Waterfront Development Corporation v. Commonwealth, 378 Mass. 629 (1979); the Appeals Court Remand and Newburyport Redevelopment Authority vs. Commonwealth & Another, supra; from Opinion of the Justices to the Senate, Mass. (1981) [Note 2] and lastly from United States of America v. 1.58 Acres of Land Situated in the City of Boston, County of Suffolk, Commonwealth of Massachusetts, et al, No. 80-2207-6 (D. Mass., August 19, 1981).
From these cases the Court deduces that the law as to title to land below the high water line is divided into two categories. Under doctrines deriving first from Roman and later English Common law the area of the flats between low water and high water was designated as the jus privatum over which the crown and later Parliament had control; the area seaward of low water was designated as the jus publicum which was held by the Crown as a public trust for all the people. This has come over to us as part of English Common law and the state and federal governments have succeeded to the rights of Parliament and the crown.
The states through their legislatures have control of the jus privatum, the flats, between high and low water in which the public rights are of a limited nature and may be extinguished. The Legislature may extinguish these rights and perfect the marketability of title of such property. Until there has been a lawful filling of flats, the littoral owner owns them subject at least to the reserved right of fishing, fowling and navigation.
The jus publicum is a different matter. ''Neither the federal government nor the state may convey land below the low water mark to private individuals free of the sovereign's jus publicum. Moreover, the state's administration of the public trust is subject to the paramount rights of the federal government to administer its trust with respect to matters within the federal power. The trust is of such a nature that it can be held only by the sovereign, and can only be destroyed by the destruction of the sovereign." United States of America vs. 1.58 Acres of Land Situated in the City of Boston, County of Suffolk, Commonwealth of Massachusetts, et al, supra. Neither federal nor state government may alienate the land free from the public trust. The Massachusetts legislature has the power to grant such land but only subject to the public trust and subject to paramount rights in the federal government if the latter chooses to exercise such rights. Any grant must be subject to a condition subsequent that the tidelands be used for a public purpose. These are the principles to be applied to the issues raised by the Appeals Court and remanded to the Land Court.
The parties have agreed to sever and dismiss from this confirmation case that area north of the new bulkhead, marked "Face of Piling" and the area east of the northerly extension of the easterly line of Custom House Way as shown on Exhibit 209. The locus is thus composed of three areas: first between Market Square and the high water; second the littoral area of the flats between high water and low water; and third the area beyond the low water line. Applying the above principles to the locus areas one and two present no problems as there was authority to authorize the grant of these two areas by the legislature, excepting, of course, the areas of Way 1and 6 and Somerby Landing, hereinafter discussed under Part 2(b) of the opinion of the Appeals Court. The third area in question runs from the low water line as determined herein northerly to the northerly extremities of the bulkhead which extends across the embankment and marked "Face of Pilings" on the revised file plan Exhibit 209. This will be discussed herein under part 3 of the opinion of the Appeals Court.
Part 2(b) of the opinion of the Appeals Court provides that "the case will be remanded to the Land Court to determine just what portions of the alleged ways 1 and 6 were so conveyed to the town and where those portions are located on the ground." Newburyport Redevelopment Authority vs. Commonwealth & Another, supra at 310.
The Court heard testimony from one Ralph Esposito, a land surveyor employed by Pembroke Land Survey Company of Newburyport and from one D'arcy G. Van Bokkelen, an historian and one time curator of the Maritime Museum and assistant curator of the Museum of the Historical Society of Old Newbury. Mr. Van Bokkelen has for the past fifteen years concentrated on the history of Newburyport.
Although there is conflicting evidence from some of the maps in evidence, the Court is convinced that the low water line is as shown in 1804 by the American Coast Pilot, Exhibit 201, and is as depicted on Exhibit 209. Particularly convincing to the Court is the fact that the Pilot was published in Newburyport by Edmond M. Blunt who owned a bookstore at No. 8 State Street, just off Market Street. If anybody should have been an authority on the low water line in Newburyport as of this date, he should. In addition, the layout of Ferry Landing, Exhibit 109, and the description of Way 6, Exhibit 45, corroborates this low water line to a large extent.
The Court thus finds that the low water line is as shown on Exhibit 209 and that Way 1 and Way 6 are likewise as shown thereon with their northerly bound being the low water line.
Part 2(b) of the Appeals Court decision also requires that the Court "determine the location on the ground of that portion of Somerby Landing Place which was conveyed by the 1751 grant of the proprietors and which is not included within the limits of Way 1, and the decree of confirmation is to include appropriate provisions with respect to that portion which will protect and perpetuate the terms of the grant from the proprietors.'' The Court, on all the evidence, finds that there is no part of Somerby Landing Place not encompassed by Way 1 and rules that it is subject to the same provisions for its perpetuation as are set forth hereinafter for ways 1 and 6.
The third requirement of Part 2(b) of the Appeals Court decision requires that the Land Court prescribe "appropriate provisions requiring those portions (of the ways) to be kept open for the purposes and in accordance with the terms of the respective grants from the proprietors." Newburyport Redevelopment Authority v. Commonwealth & Another, supra at 300.
The Appeals Court agreed with the assertion of the respondent committee "that the proprietors' 1751 grant of Somerby Landing Place and their 1826 grant to the town of their remaining interests in land in Newburyport created enforceable trusts to keep open and maintain Way 1 and the landing at Somerby Landing Place and to keep open and maintain Way 6 which cannot be impaired by the Legislature..." Newburyport Redevelopment Authority v. Commonwealth & Another, supra at 307.
The Court finds that Way 1 was laid out for a "private way for the use of the town" and rules that this Way may be used for all purposes for which a way in the City of Newburyport may be used.
The Court finds that Way 6 was laid out on May 11, 1771 and that on October 28, 1826 the proprietors of the common and undivided lands conveyed all their interest therein to Newburyport, subject to the provision that Way 6 ''be kept open and not encumbered with any building forever." Exhibit 1, Sheet 19. The Court rules likewise that this Way may be used for all purposes for which ways in Newburyport may be used.
The petitioner herein, with the acquiescense of the defendants, requests that in addition to the uses of Ways 1 and 6 set forth above, it shall not be a breach of the trust affecting the Trust Property to permit private use of:
i. the subsurface area beneath the Trust Property,
ii. the airspace above Way 6, or
iii. the airspace above ten foot strips along the easterly and westerly boundaries of Way 1, in connection with the use or improvement of abutting premises, provided such use is not inconsistent with the allowed uses set forth above. Moreover, allowed uses of the Trust Property may include, without limitation, the reasonable construction and use of parking and/or park facilities.
The Court so finds and rules.
Part 3 in the opinion of the Appeals Court involves the question as to whether or not the authority's urban renewal plan involves a violation of the doctrine that "an authority can grant tidelands to private individuals only for development for public purposes.... and that any such grant must be subject to a condition subsequent that the tidelands be used for the purposes for which they are granted." The Appeals Court directs that the Court consider whether or not the authority's urban renewal plan is a violation of this doctrine and make appropriate provisions for the protection of the public interest below low water as it existed prior to the placement of any fill. This is the area between the low water line and the "Face of Pilings" as shown on Exhibit 209.
The Newburyport Urban Renewal Project was set forth in a document entitled "Urban Renewal Plan For the Newburyport Central Business Urban Renewal Project Project No. Mass. R-80" originally dated April 26, 1965. It was amended on five different occasions, during the 60's and early 70's, the last time before the commencement of this action being on July 6, 1971. The area involved includes the tidelands as shown on the revised plan Exhibit 209. Before the project's approval it survived public hearings before the planning board, the local redevelopment authority and the council, all of Newburyport. It then survived scrutiny by the State and finally by the Department of Housing and Urban Development at the federal level. The area involved was found to be a blighted and decadent one and financial assistance was necessary to remedy it. The project was found to be for the welfare of the community as a whole and complied with the Civil Rights Act.
This Urban Renewal Project Exhibit 203 was amended again on June 29, 1981 after a year long study of the downtown Newburyport Waterfront area. This study considered the economic impact to the city of the waterfront development. The proposed uses for the Waterfront were sought to be such as would enhance the whole downtown area both in the busy summer season and the long winter months of much less activity.
A final Urban Renewal Project revision was made on April 29, 1982, Exhibit 208. As part of this Urban Renewal Project a final revised file plan, Exhibit 209, was drafted providing for additional ways in addition to Way 1 (including Somerby Landing Place) and Way 6. These additional ways are Riverside Park Way, Central Wharf Way, Railroad Avenue, Ferry Wharf Way, and Custom House Way. The area of Way 1 and Somerby Landing Place run only to the low water line but both are encompassed into Riverside Park Way which runs to the Merrimac River. Way 6 like Way 1 runs only to low water but is encompassed within Railroad Avenue which runs to the Merrimac River. Central Wharf Way, Ferry Wharf Way and Custom House Way likewise run to the Merrimac River. All of these ways are shown on Exhibit 209. The authority is seeking to develop the locus by the location of a hotel on at least part of the site and by improving the public park, Waterfront Park, already in existence, consisting of a bulkhead or pier extending along the whole northerly line by the river. This bulkhead or pier is used for pleasure boating, with boats being allowed to tie up there on a first come first serve basis. During the summer, floats are put in to add to the area for use in boating. This waterfront park was built with federal funds provided by the U.S. Department of The Interior.
Basic to the redevelopment plan is the need to rehabilitate the blighted and decadent area of the waterfront in Newburyport to enhance the tax base of the city and to supplement and add an attractive dimension to the already great strides that have been made in rejuvenating the old rundown downtown section of the city.
The Court finds and rules on all the evidence that the proposed urban renewal project plan is for public purposes and that the public will be well served by it. Applying the principles set forth in the cases cited earlier and being mindful of the statement that the trust over the jus publicum "is of such a nature that it can be held only by the sovereign and can only be destroyed by the destruction of the sovereign", United States of America vs. 1.58 Acres of Land Situated in the City of Boston, County of Suffolk, Commonwealth of Massachusetts, et al, supra, the Court finds and rules that the tidelands area from the low water mark to the northerly line of the "Waterfront Park" shown on Exhibit 209 as "Face of Piling" is held subject to a condition subsequent so that the sovereign may reclaim this area if and when the public is not being served.
The Court orders that the title to the locus be confirmed as set forth in the decision of this Court dated January 30, 1979 with the following revisions:
1. The primitive low water mark is as shown on the revised file plan Exhibit 209; and
2. Somerby Landing also known as Way 1, and Way 6 are as depicted on this revised file plan, Exhibit 209, and are enforceable trusts which cannot be impaired by the legislature. These Ways may be used and improved for all purposes for which public ways, landing places and parks have been or may hereafter be lawfully used in the City of Newburyport. It shall not be a breach of the trust affecting the Trust Property to permit private use of the subsurface area between the ways, the airspace above Way 6, and the airspace above ten foot strips along the easterly and westerly boundaries of Way 1 in connection with the use or improvement of abutting premises, provided such use is not inconsistent with the allowed uses set forth above. Moreover, allowed uses of the said ways may include, without limitation, the reasonable construction and use of parking and park facilities.
3. The plaintiff's revised plan, Exhibit 209, including as it does ways known as Riverside Park, Central Wharf Way, Railroad Avenue, Ferry Wharf Way, and Custom House Way for public access to waters of the Merrimac River, and the proposed uses for the area below low water as set forth in the Urban Renewal Plan For the Newburyport Central Business Urban Renewal Project Project No. Mass. R-80 as amended April 29, 1982, Exhibit 208, satisfy all requirements for public purposes; and
4. The area of locus north of the line marked "Face of Piling" and east of the easterly line of Custom House Way extended northerly as shown on the revised file plan, Exhibit 209, shall be severed and dismissed from this petition; and
5. The area between the low water mark and the "Face of Piling" as shown on the revised file plan, Exhibit 209, shall be subject to a condition subsequent that use of this area produce a general public benefit as set forth in the revised Urban Renewal Project Plan, Exhibit 208, with a consequent right of re-entry in the event that the use of this area fails to conform to its designated use for public purposes.
[Note 1] Mass. App. Ct. Adv. Sh. (1980) 287.
[Note 2] Mass. Adv. Sh. (1981), 1361.