OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

On June 27, 1974, the Justices submitted the following answer to a question propounded to them by the House of Representatives.

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To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this reply to the question set forth in an order adopted by the House on May 8, 1974, and transmitted to us on May 10, 1974. The order recites the pendency before the General Court of a bill, a copy of which has been transmitted to us with the order. This bill is entitled, "An Act authorizing public right-of-passage along certain coastline of the Commonwealth" (House No. 481). [Note 1]

The bill declares that the reserved interests of the public in the land along the coastline between the mean high water line and the extreme low water line include a "public on-foot free right-of-passage." This "right-of-passage" is only to be exercised after sunrise and before one-half hour after sunset and is not to be exercised in those areas designated by the Commissioner of the Department of Natural Resources as of critical ecological significance and so posted. It is not to be exercised where there exists a structure or enclosure authorized by law, or an agricultural fence enclosing livestock, if such areas are clearly posted. An attempt to prevent the exercise of this right of passage is made punishable by fine, and the burden of proof in any action concerning the exclusion of the exercise of the right is to be on the party seeking to exclude or limit it. Interference with or making unsafe such passage is made unlawful, and a civil remedy is provided to any person affected by such action. Littering while exercising the right of passage is prohibited. The limited tort liability of G. L. c. 21, Section 17C, is extended to coastal owners with respect to persons exercising the "right-of-passage" except for injuries caused by a violation of the proposed act.

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[Page 683 is entirely footnotes]

The bill further provides that it is not to be construed as altering existing statutory or common law property or personal rights or remedies. It then states that any person having a recorded interest in any land affected may "within two years from the effective date of this act" petition the Superior Court under G. L. c. 79 "to determine whether . . . the activities authorized herein constitute an injury for which the owner is entitled to compensation under said chapter 79." Finally, the bill requires the Commissioner of Public Works to record a notice of its adoption, prior to its effective date, in every county where coastline land is required to be recorded. He is also required to give such notice by publication within sixty days after its effective date for three consecutive weeks in newpapers in cities and towns containing affected coastal land.

The order asserts that grave doubt exists as to the constitutionality of the bill if enacted into law and propounds the following question:

"Would the pending Bill if enacted into law violate Article X of the bill of Rights of the Constitution of the Commonwealth or the Fourteenth Amendment to the Constitution of the United States?" [Note 2]

At common law, private ownership in coastal land extended only as far as mean high water line. Beyond that, ownership was in the Crown but subject to the rights of the public to use the coastal waters for fishing and navigation. Whittlesey, Law of the Seashore, Tidewaters and Great Ponds (1932) xxviii-xxix. Commonwealth v. Roxbury, 9 Gray 451, 482-483 (1857). When title was transferred to private persons it remained impressed with these public rights. Shively v. Bowlby, 152 U.S. 1, 13 (1893). The property inherent in the Crown in England was passed by charter to the Massachusetts Bay Colony and ultimately to

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the Commonwealth. Massachusetts Constitution, Part II, c. 6, art. 6. See Commonwealth v. Roxbury, supra, at 483-484. In the 1640's, in order to encourage littoral owners to build wharves, the colonial authorities took the extraordinary step of extending private titles to encompass land as far as mean low water line or 100 rods from the mean high water line, whichever was the lesser measure. Storer v. Freeman, 6 Mass. 435 (1810). This was accomplished by what has become known as the colonial ordinance or 1641-47, which is found in the 1649 codification, The Book of the General Lawes and Libertyes, at p. 50. "Every Inhabitant who is an housholder shall have free fishing and fowling in any great ponds, bayes, Coves and Rivers, so farr as the Sea ebbs and flowes, within the precincts of the towne where they dwell, unles the freemen of the same Town or the General Court have otherwise appropriated them. . . . The which clearly to determine, It is Declared, That in all Creeks, Coves and other places, about and upon Saltwater, where the Sea ebbs and flowes, the proprietor of the land adjoyning, shall have propriety to the low-water mark, where the Sea doth not ebb above a hundred Rods, and not more wheresoever it ebbs further. Provided that such proprietor shall not by this liberty, have power to stop or hinder the passage of boates or other vessels, in or through any Sea, Creeks, or Coves, to other mens houses or lands."

Although strictly the ordinance was limited to the area of the Massachusetts Bay Colony, it has long been interpreted as effecting a grant of the tidal land to all coastal owners in the Commonwealth. Weston v. Sampson, 8 Cush. 347, 353-354 (1851), and cases cited. The language of the ordinance well illustrates the notion, previously alluded to, of reserved public right. It expressly specifies that the public is to retain the rights of fishing, fowling and navigation. Notwithstanding these limitations and the use of such ambiguous terms as "propriety" and "liberty," there is ample judicial authority to the effect that the ordinance is properly construed as granting the benefitted owners a fee in the seashore to the extent described and subject to the public rights reserved. It is unnecessary to cite more than a

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few of the many cases to that effect. In Commonwealth v. Alger, 7 Cush. 53 (1851), probably the leading case on the subject, Chief Justice Shaw wrote, "[The ordinance] imports not an easement, an incorporeal right, license, or privilege, but a jus in re, a real or proprietary title to, and interest in, the soil itself, in contradistinction to a usufruct, or an uncertain and precarious interest." Id. at 70. "[It created] a legal right and vested interest in the soil, and not a mere permissive indulgence, or gratuitous license, given without consideration, and to be revoked and annulled at the pleasure of those who gave it." Id. at 71. In Butler v. Attorney Gen. 195 Mass. 79, 83 (1907), it was said, "Except as against public rights, which are protected for the benefit of the people, the private ownership is made perfect," and in Boston v. Boston Port Dev. Co. 308 Mass. 72, 78-79 (1941), this ownership in tidal land was deemed property of a "substantial nature." See, e.g., Walker v. Boston & Maine R.R. 3 Cush. 1, 21 (1849); Henry v. Newburyport, 149 Mass. 582, 584-585 (1889); Jubilee Yacht Club v. Gulf Ref. Co. 245 Mass. 60 (1923); Michaelson v. Silver Beach Improvement Assn. Inc. 342 Mass. 251, 257 (1961).

If, therefore, the right of passage authorized by the bill is, as it declares, merely an exercise of existing public rights and not a taking of private property, it must be a natural derivative of the rights preserved by the colonial ordinance. It has been held proper to interfere with the private property rights of coastal owners in the tidal area for purposes reasonably related to the protection or promotion of fishing or navigation without paying compensation. Home for Aged Women v. Commonwealth, 202 Mass. 422 (1909). Crocker v. Champlin, 202 Mass. 437 (1909). An "on-foot right-of-passage" is not so related to these public rights. The cases interpreting the right of the public in navigation all deal with the use in boats or other vessels of the area below mean high water mark "when covered with tide water." Commonwealth v. Charlestown, 1 Pick. 180, 183-184 (1822). Commonwealth v. Alger, 7 Cush. 53, 97 (1851). Old Colony St. Ry. v. Phillips, 207 Mass. 174, 180-181 (1911). Thus the right of passage over dry land at

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periods of low tide cannot be reasonably included as one of the traditional rights of navigation.

We have frequently had occasion to declare the limited nature of public rights in the seashore. For example, a littoral owner may build on his tidal land so as to exclude the public completely as long as he does not unreasonably interfere with navigation. Compare Austin v. Carter, 1 Mass. 231 (1804), and Locke v. Motley, 2 Gray 265 (1854), with Kean v. Stetson, 5 Pick. 492 (1827). Nor do public rights extend so far as to give an adjoining owner the right to require a littoral owner to allow the tidewater to flow across the shore to the former's land for drainage. Henry v. Newburyport, 149 Mass. 582, 584-585 (1889). These limitations are also evident in comparing Weston v. Sampson, 8 Cush. 347 (1851), with Porter v. Shehan, 7 Gray 435 (1856), both written by Chief Justice Shaw. In the Weston case, the defendants entered upon the plaintiffs' tidal land by boat, and their digging for clams was held to be an exercise of the reserved public right of fishing. In the Porter case, however, it was deemed a trespass for the defendant to enter and take five cords of muscle mud "consisting of living and dead shell fish . . . and the soil or clay in which they were found," and used principally as a fertilizer. 7 Gray at 435-436. The Chief Justice wrote that this exceeded the public rights in fishing, and that there was "no right to take the soil, or fish shells, part of the soil, except as slight portions of the soil would necessarily and ordinarily be attached to shell fish, when taken." Id. at 437. A similar contrast may be discerned in Anthony v. Gifford, 2 Allen 549 (1861), in which it was held that the reserved public rights could be exercised under a statute allowing any person to collect seaweed, kelp and other marine plants "[s]o long as they are afloat and driven or moved from place to place by the rising tide," id. at 550, but not once they had come to rest on the beach land owned privately by virtue of the colonial ordinance.

We are unable to find any authority that the rights of the public include a right to walk on the beach. In a case presenting a very similar question to that raised by the bill,

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it was held that the public rights in the seashore do not included a right to use otherwise private beaches for public bathing. Butler v. Attorney Gen. 195 Mass. 79 (1907). "We think that there is a right to swim or float in or upon public waters as well as to sail upon them. But we do not think that this includes a right to use for bathing purposes, as these words are commonly understood, that part of the beach or shore above low water mark, where the distance to high water mark does not exceed one hundred rods, whether covered with water or not. It is plain, we think, that under the law of Massachusetts there is no reservation or recognition of bathing on the beach as a separate right of property in individuals or the public under the colonial ordinance." Id. at 83-84. See Michaelson v. Silver Beach Improvement Assn. Inc. 342 Mass. 251 (1961).

We have considered an able argument made in the brief of one of the amici curiae that we should interpret the colonial ordinance as vesting in the Commonwealth the right to allow all significant public uses in the seashore. It is contended that while fishing, fowling and navigation may have exhausted these uses in 1647, these public uses change with time and now must be deemed to include the important public interest in recreation. Whatever may be the propriety of such an interpretation with respect to public rights in littoral land held by the State, compare Borough of Neptune City v. Borough of Avon-by-the Sea, 61 N. J. 296, 308-309 (1972), we think the cases we have cited make clear that the grant to private parties effected by the colonial ordinance has never been interpreted to provide the littoral owners only such uncertain and ephemeral rights as would result from such an interpretation. The rights of the public though strictly protected have also been strictly confined to these well defined areas. "[T]he only specific powers which have been expressly recognized as exercisable without compensation to private parties are those to regulate and improve navigation and the fisheries." Michaelson v. Silver Beach Improvement Assn. Inc. 342 Mass. 251, 256 (1961). Since this is not such a project or

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regulation it cannot be considered merely a manifestation of the reserved rights of the public.

It is next necessary to inquire whether the authorization of the right of passage provided by the bill, while not within the public rights reserved by the colonial ordinance, is nonetheless a proper exercise of the Commonwealth's police power and, as such, does not require that compensation be paid to the private owners. See, e.g., Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 394-397 (1962). The elusive border between the police power of the State and the prohibition against taking of property without compensation has been the subject of extensive litigation and commentary. See Bosselman, Callies & Banta, The Taking Issue (1973). But these difficulties need not concern us here. The permanent physical intrusion into the property of private persons, which the bill would establish, is a taking of property within even the most narrow construction of that phrase possible under the Constitutions of the Commonwealth and of the United States.

It is true that the bill does not completely deprive private owners of all use of their seashore property in the sense that a formal taking does. But the case is readily distinguishable from such regulation as merely prohibits some particular use or uses which are harmful to the public. See Commonwealth v. Alger, 7 Cush. 53, 86 (1851). The interference with private property here involves a wholesale denial of an owner's right to exclude the public. If a possessory interest in real property has any meaning at all it must include the general right to excluded others. Nichols, Eminent Domain (Rev. 3d ed.) Section 5.1 [1] (1970).

Here the Commonwealth proposes to take easements for the benefit of the public, Grove Hall Sav. Bank v. Dedham, 284 Mass. 92 (1933); Cayon v. Chicopee, 360 Mass. 606, 609-610 (1971), and compensation is required. The bill seeks to require private owners to permit affirmative physical use of their property by the public. "[W]e know no right which the legislature have to require a citizen to make his property

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convenient for his neighbor's use without compensation." Morse v. Stocker, 1 Allen 150, 158 (1861). See Delaware, Lackawanna & Western R.R. v. Morristown, 276 U.S. 182, 194-195 (1928). Even commentators who, as a matter of constitutional law, favor the narrowest interpretation of "takings" agree that a "physical invasion" must be so considered. Bosselman, Callies & Banta, supra, at 254-255.

The bill, therefore, would effectively appropriate property of individuals to a public use and thus is controlled by the constitutional restriction of art. 10 of the Declaration of Rights of the Massachusetts Constitution, and the Fourteenth Amendment to the United States Constitution. These provisions require that such takings be for a public purpose and that reasonable compensation be paid. See Caleb Pierce, Inc. v. Commonwealth, 354 Mass. 306, 308-309 (1968). We think it is evident that the creation of the proposed right of passage would serve the recognized public interest in the providing of recreational facilities. Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 374 (1913). Rindge Co. v. County of Los Angeles, 262 U.S. 700, 708 (1923). There is considerable question, however, whether the bill as written makes adequate provision for the constitutional requirement of fair compensation.

The bill permits "any person having a recorded interest in any land affected" by the bill within two years to "petition the superior court under the provisions of chapter 79 of the General Laws to determine whether this section or the activities authorized . . . [by the bill] constitute an injury for which the owner is entitled to compensation under said chapter 79." The exact intended meaning of this provision is somewhat unclear but we think that even under the most generous interpretation it is insufficient to satisfy the constitutional requirement of compensation.

By its choice of the word "injury" rather than "taking" or "appropriation," the bill may be making special reference to G. L. c. 79, Section 9, which permits compensation to be awarded under G. L. c. 79 for "injury" to real estate caused "by the establishment, construction, maintenance, operation, alteration, repair or discontinuance of a public

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improvement which does not involve the taking of private property." "The language of . . . [this statute] reflects the distinction between takings, for which compensation is compelled, and other injuries which are compensated only as a matter of legislative grace." Cann v. Commonwealth, 353 Mass. 71, 74 (1967). Such an interpretation of the bill, applying the compensation provisions only to indirect injury to the upland property of littoral owners, is plausible given the bill's initial statement that the proposed right of passage represents merely an exercise of reserved public rights. If this interpretation is correct the bill is plainly deficient for failing to provide compensation for the taking of tidal land which we have found implicit in its terms.

Even if we were to construe the "injury" alluded to in the bill to be the taking of the right of passage itself, the method of compensation provided is inadequate. Such a taking with compensation "should not be accomplished by the use of ambiguous or uncertain language." Glover v. Boston, 14 Gray 282, 288 (1859). Turner v. Gardner, 216 Mass. 65, 70 (1913). It is not sufficient for a statute to authorize a taking and then provide a possibility of compensation in a later proceeding as this bill would do. "The power to take and the obligation to indemnify for the taking are inseparable." Attorney Gen. v. Old Colony R.R. 160 Mass. 62, 90 (1893), quoting from Drury v. Midland R.R. 127 Mass. 571, 576 (1879).

What the bill in effect attempts is to transfer from the Legislature to the courts not merely the decision on the amount of compensation but also the decision whether or not to compensate, that is, whether or not to exercise the power of eminent domain. This would raise serious constitutional questions with respect to the separation of powers. See art. 30 of the Declaration of Rights of the Massachusetts Constitution. Article 10 of the Declaration of Rights provides that private property may not be appropriated to public uses without the consent of the owner or "of the representative body of the people." The power of eminent domain is a legislative power. Talbot v. Hudson, 16 Gray 417, 420-422 (1860). Nichols, Eminent

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Domain (Rev. 3d ed.) Section 3.2 (1973). While that power may be delegated to various public and private agencies, Opinion of the Justices, 330 Mass. 713, 718-719 (1953), particular care must be taken when the delegation crosses the boundaries of three departments of government. "In Varick v. Smith, 5 Paige, 137, it is said that the legislature is the sole judge as to the expediency of . . . exercising the right of eminent domain . . . either for the benefit of the inhabitants of the state or of any particular portion thereof." Dingley v. Boston, 100 Mass. 544, 558 (1868). [Note 3]

Even if we were to hold that compensation to private owners for the taking of this public easement were provided in the bill it would still be constitutionally defective, for the procedure proposed is inadequate both in the scope of its potential compensation and the notice accorded to property owners of their right to recover damages.

The only property owners given an opportunity to seek damages are those having a recorded interest in affected property. It is obvious that this omits all property owners who hold their title by unrecorded deed or adverse possession. Either manner of acquiring property gives good title. While the grantee under an unrecorded deed may not prevail against those protected by the recording statute, he still possesses a valuable property interest, see Jacobs v. Jacobs, 321 Mass. 350, 351 (1947), and is thus entitled to compensation. See Old Colony & Fall River R.R. v. County of Plymouth, 14 Gray 155, 161 (1859). Similarly, we have held that one holding title by adverse possession, as well as

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a holder by adverse possession which has not yet ripened into title, may maintain an action for compensation for a taking by the Commonwealth. Andrew v. Nantasket Beach R.R. 152 Mass. 506 (1890). Since the proposed bill does not provide compensation for either of these classes of owners it is constitutionally inadequate.

Furthermore, with respect to those owners as well as to those of recorded interest, it is a matter of serious question whether the method of notice to affected property owners is sufficient. Notice prior to the exercise of the power of eminent domain is constitutionally required. Appleton v. Newton, 178 Mass. 276, 281 (1901). The bill provides only constructive notice by recording the publication. A number of our older cases may be read to hold that such constructive notice is adequate. Taylor v. County Commrs. of Hampden, 18 Pick. 309, 311-312 (1836). Brock v. Old Colony R.R. 146 Mass. 194 (1888). Appleton v. Newton, supra, at 281-283. More recent cases of the United States Supreme Court, however, suggest that a more stringent standard is necessary to satisfy the notice requirements of the Fourteenth Amendment. In Walker v. Hutchinson, 352 U.S. 112 (1956), the court found that notice by publication was insufficient to meet the proper due process standard in a condemnation proceeding. The same was found true of more extensive publication, together with posting in the vicinity of the condemned property, in Schroeder v. City of New York, 371 U.S. 208 (1962). In both of these cases the court applied the notice standard articulated in Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 (1950), in which it was said that what was required was "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 314.

The notice provisions of the bill fall short of this standard. As was noted in the above cited cases, publication is inadequate when the names and addresses of the affected persons are available. Walker v. Hutchinson, supra, at 116. Schroeder v. City of New York, supra, at 212-213. "It is

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common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property." Walker v. Hutchinson, supra, at 116. The recording of notice, which the bill would require, does not significantly increase the likelihood that the taking will come to the attention of affected owners before the two-year period expires. First, since there is no requirement that the notice be indexed or recorded on the certificate of registration of registered land, such notice will not be specifically directed to the affected land. Second, even if this were not the case, owners rarely have recourse to the registries of deeds other than on the sale or purchase of real estate. It is unlikely that any but a very few of the affected littoral owners would have occasion to come into contact with the recorded notices. Since individual person notice is possible in most cases merely by obtaining the necessary names and addresses of the appropriate parties from the local assessors of the cities and towns where the land is located, the procedure prescribed in the bill would not comport with due process.

For all of the above reasons we believe the bill if enacted into law would violate art. 10 of the Declaration of Rights of the Massachsuetts Constitution, and the Fourteenth Amendment to the Constitution of the United States. The foregoing discussion, however, is intended to give indication of the alterations necessary to render the bill constitutionally adequate.

We answer the question "Yes."

Mr. Justice Kaplan did not participate in this opinion.

G. JOSEPH TAURO

PAUL C. REARDON

FRANCIS J. QUIRICO

ROBERT BRAUCHER

EDWARD F. HENNESSEY

HERBERT P. WILKINS