TOWN OF SCITUATE vs. BURTON D. MAXWELL & another (and a companion case [Note page436-1]).

CUTTER, J. On the westerly side of the harbor at Scituate is a town parking area. The defendant, The Welch Co. (hereinafter called Welch), owns land which adjoins the parking area on the north. At the northerly end of Welch's parcel is a pier which extends into the harbor about one hundred feet. Between the northerly edge of the parking area and the southerly side of the wharf is an area of water, about five hundred feet in length and varying in width from one hundred to two hundred feet, set back somewhat from the main harbor. "Boats in this area . . . are at no time in the path of boats proceeding southerly by the end of . . . [Welch's] wharf and by the easterly edge of" the parking area. "Prior to the spring of 1958, there was an island . . . which at low tide covered a substantial part of this area." In February and March, 1958, the department of public works of the Commonwealth (the department) dredged about nine acres in Scituate harbor "to provide for six feet of water at mean low water" and this "dredging was extended to include removing the island in the area between" Welch's wharf and the parking area. As a consequence, "more space became available in the inner harbor for the mooring of boats. This would necessarily result in some increased traffic between the inner and outer harbors. The entrance to the inner harbor from the outer harbor is by the northerly end of" Welch's wharf.

Late in 1957 the harbor master of Scituate suggested the installation of a marina [Note page437-1] in the area between Welch's wharf and the parking area. Welch was not interested but one Maxwell (a defendant in one of the present suits and the plaintiff in the other) did talk with the harbor master "who approved the project at that time." Maxwell and the town's selectmen thereafter (and prior to April 29, 1958) studied the project and Maxwell and one selectman visited "the department . . . to find if any permit was necessary . . . and learned that none was required." Up to April 29, 1958,

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there was "no apparent opposition by the selectmen to the placing of the marina off the Welch . . . property."

"Maxwell ordered fourteen moorings, each weighing two tons, made of . . . concrete, 4 1/2 feet square and 1 1/2 feet thick" on each side of which "is a 3/4 inch rod cast in the block." These were delivered on April 28. By then Maxwell had ordered materials for ten floats, each six feet wide and twenty feet long, later built.

Protests about the marina were made to the selectmen at their meeting on April 29. About this time the harbor master told Maxwell "that the picture had changed . . . [and] that he would not approve the marina unless . . . so directed by the selectmen." [Note page438-1] On May 7, Maxwell wrote to the harbor master of his intention to proceed to build the marina. On May 9, the harbor master wrote to Maxwell "that the marina . . . would constitute a menace to navigation and could not be sanctioned by him." When Maxwell received this letter he had constructed two floats and thereafter he built eight more.

On May 21, the town brought a bill to enjoin Maxwell from placing the floats. A preliminary injunction was denied. Thereupon Maxwell finished the marina which extended out from the shore one hundred forty-two feet and then turned in a northerly direction toward the wharf about sixty feet. It was Maxwell's intention later to extend the marina three hundred feet toward the wharf.

On May 26, the harbor master told Maxwell that he was compelled to give him notice to remove the floats, and on May 26 by mail gave him such notice to do so within twenty-four hours. After obtaining the agreement of the selectmen to "share in the responsibility" the harbor master retained one Gilley and, through him, one Wheeler to remove the floats and they started to do so, in the presence of the harbor master and one selectman, less than twenty-four hours from Maxwell's receipt of the notice to remove.

On June 3, 1958, Maxwell filed a bill in equity against the

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selectmen, the harbor master, Gilley, and Wheeler, [Note page439-1] seeking to restrain interference with the marina and for other relief. The suits were referred to a master. The facts stated above are based upon his report.

The master also found (a) "that the harbor master, in good faith, ordered the removal . . . under the belief that he had authority . . . under" G. L. c. 102, Section 24; (b) that the harbor master's "determination . . . that the marina constituted a menace to navigation was based on speculation and apprehension as to . . . possible interference with ordinary traffic in the channel . . . that such possibility was remote . . . [and] that this determination . . . , in all the circumstances, was unreasonable"; (c) that the harbor master's order of May 26, 1958, "to Maxwell was arbitrary and unreasonable"; (d) that Maxwell's moorings "complied substantially" with regulations of the harbor master made under G. L. c. 102; (e) that there was no evidence that these regulations had been published or communicated to Maxwell; and (f) that, although a regulation of the harbor master required that mooring permits be obtained, there was no evidence that the regulation had been published and the evidence showed that no such permit had ever been issued to anyone. The master ruled that the marina was not a vessel within the meaning of G. L. c. 102, Section 24.

The trial judge confirmed the master's report, denied a motion to recommit the report, and overruled the exceptions of the town and its officers to the report. Final decrees were entered dismissing the town's bill and permanently enjoining the defendants in the suit by Maxwell from interfering with the installation and operation of the marina. The town and its officers seek review of the various decrees by bills of exception and appeals.

1. By G. L. c. 102, Section 19, the selectmen of a town with an improved harbor are directed to appoint a harbor master. By Section 21 each master of a vessel is directed to "anchor his vessel according to the regulations of the harbor master,

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and . . . [to] move to such place as he directs." Under Section 24 a harbor master at the owner's expense may "cause the removal of any vessel . . . not moved when directed by him." By Section 26, a harbor master "may regulate and station all vessels in the streams or channels of his harbor."

The powers given to a harbor master relate to the control of "vessels." Examination of G. L. c. 102, Sections 19-26, persuades us that the Legislature used the term "vessel" in its ordinary sense of a ship, boat, or barge. Nothing in the language of the sections, or in the decided cases discussing them, suggests any grant of power to harbor masters to control structures, even if they consist in part of floats. See Commonwealth v. Perkins, 223 Mass. 84, 85-86. With reference to what is now Section 23, see The Clover, 1 Lowell, 342 (D. Mass.). [Note page440-1] Some support to our interpretation of Sections 19-26 may also be given by c. 102, Section 27.

2. By G. L. c. 91, Sections 10 [Note page440-2] and 14 (as amended respectively through St. 1931, c. 394, Section 59, and St. 1931, c. 426, Section 206), the department is given certain powers with respect to harbors and structures therein. Section 10 gives to the department "general care and supervision of . . . harbors" and Section 14 provides that the department may license wharves, piers, or other structures. In view, however, of our holding as to the powers of the harbor master, we need not decide whether this marina is essentially a floating pier with mooring accessories and thus sufficiently like a wharf or pier to come within Section 14. See F. W. Fitch Co. v. United States, 323 U.S. 582, 585-586.

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See also Worcester v. New England Inst. & New England Sch. of Accounting, Inc. 335 Mass. 486, 488-489. Cf. Commissioner of Corps. & Taxn. v. Aetna Life Ins. Co. 328 Mass. 404, 408. [Note page441-1]

3. The harbor master was without power to remove the marina. Since no relief is sought by the department, which is not a party to either suit, we have no occasion to consider the extent of the department's powers. The exceptions are overruled. The interlocutory and final decrees are affirmed. Maxwell is to have costs of these appeals.

So ordered.