MALDEN REDEVELOPMENT AUTHORITY vs. FRANCIS X. BELLOTTI, AND HIS SUCCESSORS IN OFFICE AS HE IS ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS.

By its complaint brought pursuant to G. L. c. 185, §114, plaintiff seeks an order from this court amending Certificate of TitleNo. 151703 by striking therefrom the references to the flow of Spot Pond Brook and to the rights of the public in the tidewaters of Spot Pond Brook. Service was duly made on the defendant Attorney General of Massachusetts who is charged with the duty of asserting and protecting the rights of the Commonwealth and the public in judicial proceedings involving the tidelands and tidewaters within the maritime boundaries of the Commonwealth. The defendant appeared and stipulated that the facts set forth in the complaint and supporting affidavits filed by the plaintiff were true and accurate and that there was no factual dispute between the parties.

Plaintiff moved for summary judgment, and a hearing was held on the motion. Based on the pleadings, the affidavits, documentary materials submitted and admissions made at the hearing, I rule that there are no issues as to any material facts. Therefore the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. See Community National Bank v. Dawes, 369 Mass. 550 (1976).

From the aforesaid information I find the following facts:

The plaintiff is the owner of registered land in Malden, Middlesex County set forth in Certificate of Title No. 151703 issued from the South Registry District of Middlesex County. All recording references herein are to said Registry District.

The locus was registered in Land Court Registration Case No. 31486. Land Court Plan No. 31486A shows that a portion of locus is traversed underground by a Metropolitan District Tunnel Easement. This easement was created by a taking recorded in Book 8949, Page 40 prior to the original registration by virtue of Chapter 574 of the Acts of 1955 authorizing the diversion into the tunnel of Spot Pond Brook.

At the time of registration an arm of Spot Pond Brook flowed in an underground tunnel and another stream abutting the locus, is shown on Plan 31486A as "Spot Pond (Tidal) Brook."

By virtue of a stipulation with the Attorney General filed in Case No. 31486, the locus was registered subject "to the flow of a natural water course running along the northerly boundary of said land for a distance of one hundred forty-five and 13/100 feet, shown on said plan as Spot Pond Brook; and to any and all rights of the public in the tidewaters of said Spot Pond Brook." This reference appears on the plaintiff's Certificate of Title No. 151703 recorded in Registration Book 888, Page 153.

Since locus was registered, the aforesaid "Spot Pond (Tidal) Brook" has been caused to flow underground by virtue of a taking for drainage purposes by the City of Malden as set forth in filed Document No. 555977 noted on Certificate No. 151703. This taking is approximately shown on Plan No. 31486B which is awaiting approval in this court.

The stream abutting locus shown as "Spot Pond (Tidal) Brook" on Plan No. 31486A was at one time in the 1870's called "Malden River" as appears on Sheet 6 of the examiner's abstract in Case No. 31486; on a plan of 1923 it was shown as "Old Course of Malden River," said plan being recorded at the end of Book 4805.

Until 1966 Malden River was an estuary of the sea affected by the ebb and flow of the tide. Between 1955 and 1961 many of its tributaries and estuarial inlets were caused to flow underground in tunnels and conduits as authorized by the General Court of the Commonwealth, e.g. Chapter 574 of the Acts of 1955 and Chapter 653 of the Acts of 1957.

In 1966 the Commonwealth of Massachusetts, acting through its Metropolitan District Commission, constructed the Amelia Earhart Dam in that portion of the estuary called Mystic River, downstream and seaward of the Malden River and Spot Pond Brook. The construction of this dam caused Malden River and Spot Pond Brook to cease to be tidal.

The section of Spot Pond Brook running along the northerly boundary of the locus and shown on Plan No. 31486A has been channelled and now runs through an underground culvert pursuant to two easements for sewer and drainage purposes taken by eminent domain by the City of Malden, dated May 6, 1977, and filed and noted on the plaintiff's Certificate of Title and Documents Nos. 555976 and 555977. Spot Pond Brook is no longer visible on or near the locus and no other water course or body of water is visible on or near the locus. Accordingly, the reference in plaintiff's Certificate of Title No. 151703 making the locus subject to the flow of a natural water course running along the northerly boundary shown on Plan No. 31486A as "Spot Pond (Tidal) Brook" should be and hereby is ordered to be stricken from said Certificate of Title.

The central issue to be decided is whether the Massachusetts Legislature may extinguish the public interest in tidelands and tidewaters by diversion of the waters for flood control and drainage?

The public has an interest in the tidelands and tidewaters of the Commonwealth which includes "the rights of fishing, fowling and navigation." Opinion of the Justices, 365 Mass. 681 , 685, (1974) citing the Colonial Ordinance, The Book of General Laws and Libertyes 50 (1649). The Legislature, however, "has the power to transfer or relinquish the Commonwealth's and the public's interest in tidelands within the Commonwealth." Opinion of the Justices, Mass. Adv. Sh. (1981) 1361, 1368. See also Commonwealth v. Boston Terminal Co., 185 Mass. 281 , 283-284 (1904); Nichols v. City of Boston, 98 Mass. 39 , 42 (1867). I rule that the Legislature has extinguished the public rights of fishing, fowling and navigation in Spot Pond Brook by authorizing the diverting and channelling of the brook for flood control purposes pursuant to Chapter 574 of the Acts of 1954 and by constructing and maintaining a dam, known as the Amelia Earhart Dam, downstream and seaward of Spot Pond Brook on the Mystic River pursuant to Chapter 647 of the Acts of 1957.

Chapter 574 authorized the Metropolitan District Commission (the "MDC") to construct and maintain tunnels, surface conduits and necessary appurtenant works along Spot Pond Brook in Stoneham, Wakefield, Melrose and Malden "to improve drainage and to relieve flood conditions." The MDC constructed a tunnel to divert a portion of the flow of Spot Pond Brook, and a culvert was later built along the brook bed to carry the remaining flow. The culvert is now covered by a parking lot, and the brook flows underground along the plaintiff's property. Chapter 647 authorized the MDC to construct a dam across the Mystic River "for flood relief purposes." The Amelia Earhart Dam, constructed under the authority of the MDC in 1966, effectively cut off Spot Pond Brook from the sea, causing it to become a non-tidal stream and to cease to be saline.

Both Chapter 574 and Chapter 647 explicity describe the land to be affected, grant the MDC the authority to take by eminent domain any lands and easements necessary, and expressly state that the purpose of the actions authorized is to improve flood control and drainage in the area. These Acts are valid exercises of the authority of the Legislature to divert the tidelands and tidewaters of Spot Pond Brook from the public uses of fishing, fowling and navigation to the different public uses of flood control and drainage. Spot Pond Brook is no longer tidal or saline, and so the public interest in fishing, fowling and navigation set forth in the Colonial Ordinance has been extinguished, since the Ordinance by its terms applies only to tidal, salt-water rivers. The Book of General Lawes and Libertyes 50 (1649). Accordingly, the reference to the rights of the public in the tidewaters of Spot Pond Brook contained in plaintiff's Certificate of Title should be deleted.

One of the purposes of this proceeding is to facilitate the completion of a major real estate transaction involving the plaintiff, the City of Malden and the Bank of New England, pursuant to which said bank will enter a long term lease for space in a 200,000 square foot office building to be constructed on the locus. The proposed office building is to be known as the "Metro Place Office Development" and is to be constructed over the Spot Pond Brook Flood Control Conduit. The Metropolitan District Commission has granted permits to the plaintiff to allow the erection and maintenance of the office development over that portion of the Spot Pond Brook Flood Control Conduit affecting the locus. These permits have been filed and registered as Documents Nos. 635863 and 635864.

For the foregoing reasons, plaintiff's motion for summary judgment is allowed and it is ordered that plaintiff's Certificate of Title No. 151703 be amended by deleting therefrom the references to the flow of Spot Pond Brook and the rights of the public to the tidewaters of Spot Pond Brook.

Judgment to enter accordingly.