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flats outside of Beacon and Brimmer streets, would probably be measured, in Beacon street and that vicinity, by millions. On Brimmer street, as I am informed, the land on the westerly side, having a view over the water, is worth six dollars a foot; while the land on the easterly side, having no view, but in other respects just as good, is worth from two dollars to three dollars a foot. The difference is not as great upon Beacon street, but there is no doubt that the very great value of those estates depends upon the fact that they have the pure air and view of the water and the country to the north and west of it. If there were no covenant on the part of the commonwealth, growing out of its sale of these lands and the fixing of the commissioners' line, as it is called, still, upon well-established principles of legislation the commonwealth has no right to occupy these flats. What is the principle? Assuming that there is no grant here, nothing in the nature of an implied covenant except the ordinary covenant, that principle is that a public easement - I am assuming that these are merely navigable waters and all the world has an equal right to navigate them, and these individuals have no rights of property in them greater than in a public way, and the act of 1840 had not been passed, how do we stand? Here is a highway of nations on the back side of these estates, and a public highway of the commonwealth in front of these estates. I think I can state my principle more clearly by an illustration. The control over these public easements in front and in the rear, with certain limitations, is absolute in the commonwealth; in front, in the street, it is absolute; in the rear, however, it is subject to the power of the United States to regulate the harbor for the purposes of commerce, and subject also to the principles of international law, which, to be sure, the State may violate if it pleases, which gives the people of all countries a right to use these waters for navigation. The legislature can, if it pleases, to-morrow, discontinue

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Beacon street, it can discontinue Park street, or any other public street. It has absolute control of any easements and the law which prohibits the taking of private property without consideration - the written provision of the constitution does not, I suppose, apply to it; and therefore, if the legislature should repeal the statutes which provide for compensation, in case a public way should be discontinued, none of the abutters would have any right to compensation, although it might practically destroy a large part of the value of their estates. That is the legal situation in front. Nobody doubts that these people have bought their estates on the faith that that public street in front is to remain there, and it is equally clear, as can be shown, that they have bought their estates on the faith that the opening in the rear was to remain there, and they were justified in doing both.

Now, it is a principle of legislation that the State will never so use its public easements, or so modify them, as to destroy property which has been acquired on the faith that that public easement would remain as it was. I know very well that in the very able pamphlet put forth by the committee of the legislature of 1867, several cases were cited in this commonwealth, and in New York, where the legislature has granted a right to parties to occupy public waters outside of wharf property, and pay no compensation; and according to those decisions, the legislature of Massachusetts can to-morrow authorize the building of wharves outside of Long wharf, Central wharf, and every other wharf in Boston, ruining it for wharf purposes, and pay no compensation whatever, unless they have special grants from the government. There are two decisions in New York and one in Massachusetts. The Old Colony Railroad was allowed to build in front of a wharf, and obstruct its access to navigable waters, and not pay a dollar of compensation; so the Hudson River Railroad was allowed to lay its track 2,000 feet in front of a

farm, obstructing the access to navigable waters, and injuring the value of the property, and not pay the owner a dollar. In the case of Lansing (4 Wendell), the wharf had been granted to one man, and a company was allowed to build a wharf outside of it, and destroy or seriously injure the wharf and not pay any compensation. These three cases have been decided, and the Courts have so held, that under those circumstances the party had no legal right to compensation; but while these cases exist, and for present purposes may be considered law, I declare that there is no instance to be found in England or the United States where a legislature has knowingly acted upon that principle. The cases that have arisen have resulted from the legislature misapprehending the law, or they have arisen under general laws which the legislature did not see the effect of, and I shall show you that it is an established principle in the legislation of Massachusetts, of England, and it ought to be everywhere, that no such rights are to be taken away without compensation.

Take these three cases. In the case in Cushing's reports of the Old Colony Railroad, they took the property under the general law which provided that they should pay compensation to everybody from whom they took property. The legislature undoubtedly supposed that if they destroyed a wharf they would make compensation, but the court held, under those circumstances, the party had no right; but does any one suppose that the legislature of Massachusetts, knowing the fact, would have authorized the Old Colony Railroad to destroy a wharf and not make the owner any compensation? Or does anybody suppose that any honest legislature in New York would have authorized the Hudson River Railroad to destroy or injure the value of the land of an honest farmer, and not pay him a dollar of compensation? The act was constitutional because it contained the provision that there should be compensation; but the Court held that the provision for compensation did not apply to

that case. The man brought his action for compensation under the general law, and, to the surprise of everybody, the court held that the law did not apply to that case; but the legislature never intended to adopt any such principle or act upon it. In the case in the 4th of Wendell, the case of Lansing, which the committee have cited in their pamphlet, when that case was decided, the court held that there was no legal claim for damages, but some of the remarks made by Senator Allen, as to what the legislature understood, are very striking. He says this legislation is unjust and oppressive, and if the legislature had known what they were doing they would never have passed it.

So there is no case where a fair and honest legislature has ever acted upon the principle of so using publie easements as to destroy private property, but we can everywhere find legislation where the opposite principle is acted upon; and I am happy to say there is no State in which the legislature has been more careful in guarding those rights than the commonwealth of Massachusetts. I find one case in England where a railroad was authorized to build in front of a man's wharf and obstruct his access to navigation, and the English parliament provided for damages. In just this case: building in front of a man's land where it has value to him, no matter whether for purposes of a wharf, for the purpose of view or any other purpose, the English parliament decided that the party is entitled to compensation.

Mr. BIRD. Are you not arguing against what nobody proposes to do?

Mr. SHATTUCK. If nobody proposes to fill up in the rear of • Beacon street

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Mr. BIRD. You are arguing for compensation. I think the committee would agree that no Massachusetts legislature would ever take private property without compensation.

Mr. SHATTUCK. What I mean is, you have no right to fill up without providing for the injury to light, air and view to those

estates which are bounded on Beacon street. If I am to understand it that the committee do not intend to fill up without paying the parties on Beacon street and Brimmer street for what they are injured in that way, that removes part of my argument. But the general provision for compensation would not be enough, the general provision in the case of railroads; you must put in such a provision as was put in when the mill corporation was established, so that a man could get equitable and just compensation, so that a man that had a store and sold his ashes, and could not get as much for them as before, got compensation from the company. If you propose to apply that, and give every party whose light, air and view is injured by this filling up, proper compensation, that removes part of my argument, but the general provision that private property shall not be taken without compensation will not be sufficient. I want to go beyond that, because I say the legislature of Massachusetts has always gone beyond that where that was not sufficient.

There are other considerations, assuming that these parties are to be compensated. I say that no legislature would ever fill up this territory and injure the property on this land without making compensation, and not such compensation as the constitution, the written constitution requires, but old fashioned, honest compensation, such compensation as justice and equity require. The principle laid down in this pamphlet, as I understand it, is this. It was in reference to filling up Fort Point Channel, and the ground was taken that the legislature had the power to fill up in front of those wharves. The ground was taken in the pamphlet, which is very able, and contains a full discussion of this subject, perhaps the most full that there is, that the legislature has the power to fill in front of those wharves, in front of the riparian owners, without making compensation, unless there is a special grant from the legislature of the right to the wharf. I do not propose here to argue that

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