Number 7 August 10, 1973

Number 7 August 10, 1973 Honorable Malcolm E. Graf A ssociate Commissioner Department of Public Works 100 Nashua Street Boston, Massachusetts 021 14 Dear Commissioner Graf: You have requested an opinion on behalf of the Board of Commis- sioners of your Department whether the Department of Public Works [the "Department"] properly assessed Ramada Inns, Inc. the sum of $11,333.25 as compensation for the granting of license #5942 to Ramada Inns, Inc. Said license allows Ramada Inns, Inc., subject to certain re- strictions, to " . . . maintain existing fill in a former tidal area ... to odd and maintain fill on the bank of the existing fill and to install and maintain a storm drain outfall into the Chelsea River ..." You state that the charge of $11,333.25 was assessed at the rate of 37 Vi cents per cubic yard of tidewater displacement and "... was based on the fact that the fill was placed without benefit of a license in a tidal area and therefore constituted a public nuisance." I am also advised that the sub- ject property was included in the flats surrounding Noddle Island, all of which was granted to Samuel Maverick by Colonial ordinance on April 1, 1633 and was also subject to an eminent domain taking by the United States government in 1942. Finally, you advise that the existing tidal displacement was accomplished prior to the 1942 eminent domain taking by the United States. P.D. 12 59 General Laws, c. 91. § 21 provides for compensation to be paid to the Commonwealth for the displacement of tidal water as follows: "The amount of tide water displaced by . . . any filling of flats, shall be ascertained by the department, which shall re- quire the persons who cause such displacement to make compensation therefor ... by paying to the commonwealth ... an amount assessed by the department, not exceeding thirty-seven and one half cents per cubic yard of water dis- placed . . . "* The Legislature has expressly provided that the Department may license and prescribe the terms (including compensation for water dis- placement) for the filling of tidal flats. G. L. c. 91, §§ 14, 21. The filling of tidal flats without a license or in violation of a license is considered a public nuisance and the Attorney General, upon request of the Department, may cause the nuisance to be abated. G. L. c. 91, § 23; Attorney General v. Bernice Baldwin, 1972 Mass. Adv. Sh. 345. The authority of the Department over the displacement of tidal waters was originally vested in the Board of Harbor Commissioners established by St. 1866, c. 149. St. 1866, c. 149 was followed by St. 1869, c. 432 [now G. L. c. 91, § 23] which gave the Board of Harbor Commissioners the authority to license and regulate the filling of tidal flats. Legislative enactments prior to the passage of St. 1869, c. 432, which authorized in- dividuals to fill tidal areas have been held to operate as irrevocable grants and are not subject to regulation or licensing by the Department. Commissioners of Public Works v. Cities Service Oil Company, 308 Mass. 349, 353; Treasurer and Receiver General v. Revere Sugar Refinery, 247 Mass. 483; Bradford v. McQuesten, 182 Mass. 80, 81, 82; VI 11 Op. Atty. Gen. 216. Where a legislative grant prior to St. 1869, c. 432 authorizes the grantee to fill tidal waters, neither the grantee nor his successors in title are liable to the Commonwealth to pay compensation for tidal displacement. Bradford v. McQuesten, supra. In order to answer your request, I must determine whether the Colo- nial ordinance of 1633 or any subsequent Colonial ordinance or legisla- tive enactment amounted to such a grant as to render the subject prop- erty without the Department's jurisdiction to license tidal filling under G. L. c. 91, § 14. Although no particular words are necessary to consti- tute a legislative grant of the right to fill tidal flats, such an enactment should declare the grantee has the right to build upon or fdl tidal jlats. Bradford v. McQuesten, 182 Mass. 80, 81-82. The Colonial ordinance of April 1, 1633 granted Noddle Island to Samuel Maverick "... to enjoy to him and his heirs forever ..." Vol. I Records of Massachusetts Bay, Shurtleff, p. 104. Noddle Island was the subject of another Colonial ordinance on May 13, 1640 which de- clared that the flats "round about Noddle Island" do belong to Noddle Island to the ordinary low water mark. Vol. I Records of Massachusetts Bay, Shurtleff, p. 291. A third Colonial ordinance dated February 7, 'Suhsequenl to the time this opinion w:is requested, the I egishiturc deleted 37' 2 cents as the maximum charge allimed for displacement. See St. 1972. c. 6S4. §11. 60 P.D. 12 1682 granted Noddle Island in fee to Samuel Shrimpton and exting- uished all rents, obligations and encumbrances. Vol. V Records of Massachusetts Bay, Shurtleff, p. 413. I do not find it necessary to de- termine if any of these three ordinances have the stature of a legislative grant, since it is my opinion that none of the Colonial ordinances granted the authority to fill tidal areas and therefore could not render the subject area without the Department's licensing authority pursuant to G. L. c. 91, § 14. See Bradford v. McQuesten, 182 Mass. 80, 81-82. The effect of the Colonial ordinances was to give the owner of the land subject to the ordinance title in fee, subject to lawful regulation. Michaelson v. Silver Beach Improvement Assoc, Inc., 342 Mass. 251, 254; Old Colony Street Railway v. Phillips, 207 Mass. 174, 176. The only applicable legislative enactment relative to Noddle Island is St. 1833, c. 152, § 2, which authorized the East Boston Company, sub- ject to certain restrictions, to: "" . . . purchase, hold and possess, in fee simple or other- wise, all or any part of that island . . ., known by the name of Noddle's Island, with all flats around the same, and the privileges and appurtenances thereto appertaining, and all rights, easements and water courses therewith used and en- joyed . . ." This enactment did not convey any right to fill tidal water. I must, therefore, conclude its only effect was to allow the East Boston Com- pany to purchase Noddle's Island and that St. 1833, c. 152, § 2 did not operate as a legislative grant to fill tidal areas. Another question for my resolution is whether the eminent domain proceeding in 1942 had any effect on the Department's authority to license and exact displacement compensation with respect to the subject property. In this connection, I note that the tidal displacement present when license #5942 was issued took place prior to the 1942 condemna- tion proceedings. It is clear that the eminent domain taking was an in rem proceeding which vested independent title in fee in the United States. Collector of Taxes of City of Boston v. Revere Building Inc., 276 Mass. 576, 579; Weeks v. Grace, 194 Mass. 296; Vol. I Nichols on Eminent Domain, § 1.142[1]. In my opinion, the fact that the United States acquired an independent title in fee to the subject property did not extinguish obligations arising from the presence of unauthorized tidal fill nor extinguish the public nuisance created by such illegal filling. See G. L. c. 91, § 23. The mere acquisition by a governmental body of property which contains or constitutes a nuisance does not extinguish the nuis- ance. Kurtigian v. City of Worcester, 348 Mass. 284, 288. Conse- quently, Ramada Inns, Inc. could be subjected to abatement proceed- ings pursuant to G. L. c. 91, § 23 and perhaps extraordinary tort liability if it maintained the subject property without benefit of a license. See Commr. of Public Works v. Cities Service Oil Co., 308 Mass. 349 (abatement); Fuller v. Andrew, 230 Mass. 139 (tort liability). I therefore conclude that Ramada Inns, Inc. was properly subject to the licensing requirements of the statute. P.D. 12 61 However, I note that G. L. c. 91, § 21 only requires persons ''who cause'' tidal displacement to pay compensation to the Commonwealth. Since Ramada Inns, Inc. did not cause the filling of tidal flats prior to 1942, it should not have been assessed for the filling that took place prior to that time or to the date it acquired title to the subject property. It is therefore my opinion that the assessment of $1 1,333.25 should be abated to the extent that Ramada Inns. Inc. be reimbursed a proportionate amount of the assessment which reflects the charge assessed for un- licensed filling which took place prior to Ramada Inns, Inc. ownership of the property. The remaining share of the assessment may be retained by the Department as compensation exacted pursuant to G. L. c. 91, § 21. Very truly yours, ROBERT H. QUINN Attorney General