Number 17. August 9, 1967

Number 17. August 9, 1967. Honorable Howard Whitmore, Jr., Commissioner, Metropolitan District Commission Dear Commissioner Whitmore: — You have asked for my opinion on whether the Metropolitan District Commission (MDC) may, without incur- ring liability to a contractor, reduce by one foot the depth to which the con- tractor under his contract with the MDC is required to dredge a portion of the Mystic and Maiden Rivers. For the reasons set forth below, I am of the opinion that the MDC may make the change, without incurring liability therefor. The contract in question originally provided for excavation to a depth designated as elevation 1 00. Because of an unexpected increase in certain costs of the project, your engineers have recommended that the amount of dredging be reduced by raising the dredging depth to elevation 101. Howev- er, the contractor asserts that he calculated his bid price on the assumption that he would use barges that would need the deeper draft of elevation 1 00 for their intended heavy loading. The revision to elevation 101 would, it is said, result in less water for flotation of the barges and would prevent them from being loaded beyond 50% of their capacity. The contractor's expenses would thereby be increased. However, the "Information for Bidders" issued in connection with the letting of the contract provided: "All bids will be compared on the basis of the estimate of the quantities of work to be done as set forth in the proposal, and the Commission does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work, as may be deemed necessary or expedient by the Com- mission." Further, the contract itself contained several pertinent provisions. Section 2(0 of the Special Provisions stated: "Dredging lines shown on the drawings or modified as directed by the Engineer indicate only the pay lines to which excavation will be measured and paid for, except as otherwise provided. They are not intended to and do not necessarily represent the ac- tual lines to which excavation must be made to satisfactorily per- P.D. 12 65 form the work. The actual lines necessary to perform the work may vary from those shown, depending on the material dredged and on the method of dredging applied. The Engineer may change any slope or dredging line as required by unusual condi- tions or existing structures encountered. However, unless other- wise directed by the Engineer, excavations must be made at least equal to or lower than the elevations indicated on the contract drawings." Article XVII of the General Provisions, a broader provision, stated: "The Engineer may make alterations in the line, grade, plan, form dimensions or materials of the work, or any part thereof, ei- ther before or after the commencement of construction and may increase or decrease the amount of any class or portion of the work as may be deemed necessary or expedient and an increase or decrease in the quantity for any item shall not be regarded as a sufficient ground for an increase or decrease in the prices nor in the time allowed for the completion of the work, except as pro- vided in this contract. . . . The Contractor agrees that he has en- tered into. this agreement ujDon his own examination of the loca- tion of the proposed work and the character of the work required, and not upon any statements made or plans furnished by the Commission or any officer, employee or agent thereof." A clause very similar to this last cited provision was involved in the re- cent case of Wes-Julian Construction Corporation v. Commonwealth, Mass. Adv. Sh. (1967) 103. In that case a contract for the construction of the Southeast Expressway contained a clause (p. Ill, footnote 5) reading in part: "An increase or decrease in the quantity of any item shall not be regarded as cause for an increase or decrease in the prices. ..." The contract in that case required the excavation of two classes of materials. Although the cost of removal of one class was nearly eight times that of the other, the contractor submitted a combined bid of one dollar a cubic yard, based on the ratio of the originally required amounts of each class. After the execution of the contract, the Commonwealth reduced the quantity of each class of materials but not by the same proportion in which they originally were to be excavated. As a result the contractor incurred an increased cost of $13,574. The Supreme Judicial Court ruled, however, that the quoted contract clause controlled the outcome and denied the contractor's claim for additional compensation. In the matter submitted by you, the reference in Section 2(f) of the Spe- cial Provisions to the power of the engineer to "change any slope or dredg- ing line as required by unusual or existing structures encountered" does not purport to limit the provisions of Article XVII, nor are the two provisions incompatible. Specifically, I do not regard the Engineer's authority to change a dredging line to be limited to circumstances caused by "unusual conditions or existing structures encountered." Although that phrase is found in Section 2(f), I regard it as only a specific application of the broad authority given by Article XVII of the General Provisions to make changes. In consequence, I conclude that on the facts presented to me you may, upon the making by the Engineer of an alteration in the dredging depth, proceed 66 P.D. 12 under Article XVII to make the indicated change of elevation, without in- curring liability to the contractor therefor. Very truly yours, Elliot L. Richardson, Attorney General Number 18. August 1 1, 1967. Outdoor Advertising Board Gentlemen: — You have requested my opinion as to whether a certain billboard is exempt from the outdoor advertising regulations promulgated by your Board pursuant to G. L. c. 93, § 29. For the reasons set forth be- low, I conclude that it is not exempt. You state that on the premises of the Boston Bowl, a bowling alley, on William T. Morrissey Boulevard, Dorchester, there is a billboard advertis- ing Cott Beverages; that the Cott Bowling League bowls on the premises; and that Cott Beverages can be purchased there. I assume that the beverages are sold for consumption on the premises. I also assume that the Boston Bowl occupies the entire premises. General Laws c. 93, § 30 forbids the maintenance of any billboard or other advertising device on any public way or on private property within public view from any highway, public park or reservation, which advertises any business or article unless it conforms to the regulations established by your Board under G. L. c. 93, § 29. Section 30, however, exempts from the regulations signs and devices which are — "erected and maintained in conformity with law and which adver- tise or indicate either the person occupying the premises in ques- tion or the business transacted thereon, or advertise the property itself or any part thereof as for sale or to let and which contain no other advertising matter ... or which are maintained on land owned by a person . . . engaged in the outdoor advertising busi- ness if owned by the same person ... on [January 1, 1925] . . . ." On the facts set forth in your request, it is my opinion that the Cott bill- board in question does not come within the exemption, since it does not "advertise or indicate either the person [the Boston Bowl] occupying the premises, or the business [bowling | transacted thereon"; and it does not, of course, "advertise the property itself or any part thereof as for sale or to let.'' (I assume that the exemption of persons engaged in the outdoor adver- tising business is not applicable.) In reaching this conclusion, I have given careful consideration to the case of Attorney General v. J. P. Cox Advertising Agency, 298 Mass. 383. That case involved signs which were located on grocery stores and drug stores, and which advertised products such as beverages, chewing gum, candy and cigars regularly sold therein. The Supreme Judicial Court decided that the signs must be regarded as advertising "the business transacted" on the premises within the meaning of G. L. c. 93, § 30, since they advertised arti- cles sold therein and had some tendency to induce passers-by to enter the premises to buy the advertised items. It was not necessary, the court held, for the sign to indicate the general character of the store — grocery or drug store — to which the sign pertained. P.D. 12 67 It would, in my opinion, be an unwarranted extension of the J. P. Cox Advertising case to regard it as affording an exemption in the present situa- tion. In each of the cases where the J. P. Cox Advertising case exempted the sign, the business in question carried on as its principal activity the sale of articles — groceries, beverages, tobacco and candy — of the same general character as those advertised on the signs. In the present case, however, the Boston Bowl has as its principal activity the rendering of a service — bowl- ing — not the sale of beverages. Its dealing in beverages is only incidental to its principal business, bowling, and therefore does not, in my opinion, constitute "the business transacted" on the premises within the meaning of G. L. c. 93, § 30. I recognize that there may be cases where there may be considerable difficulty in distinguishing between a principal business and one that, as in the present case, is only incidental. As each such case arises, it will have to be considered on its own facts. In summary, then, it is my opinion that the billboard to which you refer in your request for an opinion is not exempt from regulations promulgated pursuant to G. L. c. 93, § 29. Very truly yours, Elliot L. Richardson, Attomev General Number 19. August 1 1, 1967. Honorable Edward J. Ribbs, Commissioner of Public Works Dear Commissioner Ribbs: — You have asked for my opinion on sever- al questions relative to the decline in the level of Kingsbury Pond, a great pond, in the town of Norfolk, as affected by action of the adjacent town of Franklin in pumping water from an artesian well. A report, dated January 9, 1967, entitled "Drastic Lowering of Kingsbury Pond, Norfolk Massachu- setts," to which you make reference, prepared by the United States Geologi- cal Survey in cooperation with the Massachusetts Department of Public Works, gives the relevant facts. The report states that during recent years the level of the pond has dropped to a level about 13 feet below normal high water and 8.4 below its previous recorded low level in 1949. In this period the area of the pond has shrunk from 26 acres to about 9 acres. The entire northwestern part of the pond is now dry, leaving many residents of the pond without use of their docks, boathouses, and other shore facilities. Wells are also drying up. Property values are said to have declined and the market for homes around the pond is said to be nonexistent. On July 3, 1964, the adjacent town of Franklin began pumping water from an artesian well that it had dug for the purpose of increasing its water supply. The well is next to a certain tract of 6.87 acres in Norfolk that Franklin acquired at about that time by authority of c. 437 of the Acts of 1964, which authorized the latter town, with the assent of the Selectmen of the town of Norfolk, to acquire the tract "for the purpose of increasing [Franklin's] water supply. . . ." Precisely how this increase was to be ac- complished does not appear. In any event, on the facts submitted, the arte- sian well does not appear to be situated on this tract. Following the digging of the well, the level of Kingsbury Pond, which 68 P.D. 12 had, it seems, already been dropping because of a drought, continued to drop, and it has since continued to do so. Production from the well averaged about eleven million gallons a month in the years 1964 and 1965, rising to eighteen million gallons a month in 1966. Production in the summer months, however, is substantially higher than the average. Yet, despite the well's addition to Franklin's water supply, the facts which have been pre- sented to me indicate that Franklin still lacks an adequate supply of water to meet its present and future demands. You also state that the town of Norfolk is convinced that the well is the "direct and primary cause" of the present condition of the pond. Support for this conclusion is contained in the foregoing report of the United States Geological Survey, which states that the slope of the ground-water inflow to the pond has been reversed as the result of the expansion of a "cone of de- pression" extending from the well to an area that includes the pond. This expansion has probably occurred since July 3, 1964. Your request for an opinion also refers to c. 27 of the Resolves of 1967 which reads as follows: '^Resolved, That the department of public works, through its division of waterways, is hereby authorized and directed to make an investigation and study relative to dredging and cleaning Kingsbury Pond in the town of Norfolk and the feasibility of di- verting a portion of the waters of the Mill River in said town into Kingsbury Pond. Said department shall report to the general court the results of its investigation and study and its recommen- dations, if any, together with estimates of cost, and drafts of legis- lation necessary to carry such recommendations into effect by fil- ing the same with the clerk of the house of representatives on or before the last Wednesday of January, nineteen hundred and six- ty-eight." Mill River, according to a map annexed to the report of the United States Geological Survey, is located principally in the town of Norfolk. Based on the foregoing facts, you ask the following questions, the order of which 1 have rearranged for convenience in answering. 1 . "Has the Massachusetts Department of Public Works the au- thority to raise or lower the level of Kingsbury Pond? 2. "Under the above facts has the Massachusetts Department of Public Works the right to request [require?] that the town of Franklin restrict its use of its artesian well allegedly contrib- uting to the extremely low level of Kingsbury Pond? 3. "Has the Massachusetts Department of Public Works plain and explicit legislative authority to divert a portion of Mill River into Kingsbury Pond on a permanent or temporary ba- sis?" Since Kingsbury Pond has recently had an area of 26 acres, it is a great pond within the meaning of both G. L. c. 9 1 , § 35 ' and G. L. c. 1 3 1 , § 1 .2 "The provisions of this chapter relative to great poiuis shall apply only to ponds containing in their natural slate more than ten acres of land. . . .'" ~" [T] he following words shall have the following meanings . . . " 'Great pond', a natural pond the area of which is twenty acres or more." P.D. 12 69 As such, it is under the custody and control of the Waterways Division of the Department of Public Works. G. L. c. 91, § 1 1. In G. L. c. 91, § 19, it is provided: "Except as authorized by the general court and as provided in this chapter, no structure shall be built or extended, or piles driv- en or land filled, or other obstruction or encroachment made, in, over or upon the waters of any great pond below the natural high water mark; nor shall any erection or excavation be made at any outlet thereof whereby the water may be raised or lowered." In the recent case of Sacco v. Department of Public Works. Mass. Adv. Sh. (1967) 1005, it was said at p. 1006, "The great ponds of this Commonwealth are among its most cher- ished natural resources. Since early times they have received spe- cial protection." Again, as stated in Attorney General v. Jamaica Pond Aqueduct Corpo- ration, 133 Mass. 361, 364, "The great ponds of the Commonwealth belong to the public, and, like the tide waters and navigable streams, are under the control and care of the Commonwealth. The rights of fishing, boating, bathing, and other like rights which pertain to the public, are regarded as valuable rights, entitled to the protection of the government." Applying the foregoing principle, it has been held that in the absence of explicit authority from the Legislature, a well in the vicinity of a great pond cannot be dug if it will intercept underground waters which supply the pond. Attorney General v. Jamaica Pond Aqueduct Corporation, 133 Mass. 361. The fact that a city or town may be the agency which intercepts the flow does not change this rule. See Stoneham v. Commonwealth, 249 Mass. 112, 118, holding that a town has no proprietary rights in the waters of a great pond. It follows that a town may not use the waters as a source of its water supply, at least if such use conflicts with the public's rights in the pond. Turning now to the questions raised by your request for an opinion, it is my view that your Department, as the agency charged with the control and care of great ponds, and under its statutory authority and indeed its duty given by G. L. c. 91, § 11 concerning the "improvement, development, maintenance and protection of . . . great ponds," may take appropriate ac- tion to raise the Kingsbury Pond to its former level. Lacking more detailed facts, I cannot express an opinion as to the validity of any particular action that may be contemplated. Specifically, for lack of sufficient facts, I am una- ble to express an opinion on the application of G. L. c. 9 1 , §§ 13 and 1 9 to any particular plan. Section 19, already quoted in this opinion, places cer- tain restrictions on various activities such as the building of structures and the making of obstructions "in, over or upon the waters of any great pond below the natural high water mark . . ." and the making of erections or ex- cavations "at any outlet thereof whereby the water may be raised or low- ered." Section 1 3 vests in your Department the power to license certain con- struction and other activities in great ponds, with a proviso that a license "shall not validate acts beyond the line of riparian ownership or affecting the level of the waters in such [a] pond unless approved by the governor and council." 70 P.D. 12 Yet whatever the exact scope of the foregoing limitations may be as ap- plied to a particular set of facts, I am of the opinion that they are all de- signed to preserve great ponds in their natural state and at their normal lev- els. They should not be construed in a way that will restrict action that may be necessary to restore the depressed level of a great pond, such as Kingsbu- ry Pond in the present circumstances, as nearly as may be to its natural level. Your second question asks whether your Department has "the right to re- quest [require?] that the Town of Franklin restrict its use of its artesian well allegedly contributing to the extremely low level of Kingsbury Pond?" It is my opinion that if your Department determines that there is a causal connection between the use of the well and the decline in the level of the pond, it may then, in the exercise of sound discretion, order the town of Franklin to restrict its use of the well. The Jamaica Pond Aqueduct case, already cited in this opinion (133 Mass. 361), provides adequate legal sup- port for this conclusion. In reaching this result, I am not unmindful of the important public interest of the town of Franklin in maintaining an ade- quate supply of water for its citizens. This fact should be given careful con- sideration by your Department in fixing the scope of an order to cease and desist and the timing of action to be taken thereunder. Your third question asks whether your Department has ''plain and explic- it legislative authority to divert a portion of Mill River into Kingsbury Pond on a permanent or temporary basis." Mill River, you state, is a tributary of the Charles River, and diverting water from it will take water from the Charles River watershed. I answer this last question in the negative. I know of no statute that plain- ly and explicitly authorizes such diversion. The problems raised by your questions pose important issues of public policy. To the extent that existing law is not adequate to resolve them, fur- ther legislation may be required. Very truly yours, Elliot L. Richardson, Attorney General