Coastal Services Center

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The Role of the Courts (2 of 5)

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Striking a Balance Between the Courts and Legislatures:
The Massachusetts Experience

Until 1979 an upland owner in Massachusetts generally could obtain a license to fill tidelands as long as the project

• Did not interfere with navigation
• Was structurally sound

The public's reserved interests in tidelands did not enter into the decision. In 1979, however, the Massachusetts Supreme Judicial Court, in Boston Waterfront Development Corp. v. Commonwealth, brought these interests into the equation:

• When Boston Waterfront Development Corp. sought to register a deed for filled lands—asserting ownership based upon a series of wharfing statutes from the 1880s—the Commonwealth of Massachusetts challenged the registration.
• The court found that the property was still subject to the Public Trust Doctrine despite express legislative grants of the lands into private ownership and nearly 150 years of reliance on those grants by private parties.
• While the wharfing statutes conveyed title below the low water mark, it was on the implied condition that the land be used for the public purpose for which it was originally granted.
• The commonwealth had the right to reenter the land and oust the grantee if the tidelands were no longer used for the public purpose for which they were originally granted.