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proposition; that is, that the legislature may authorize the occupation of the flats in front of a wharf so as to destroy that wharf, and under the provisions of the written constitution there may be no claim to compensation under those decisions. I am (for the purpose of this argument) assuming that that is the law, but I have stated broadly that no legislature, either in England or the United States, ever acted upon that principle; they have universally acted upon the principle, that where private property has been acquired and improved, on the faith that a public easement would remain as it had been, and was at the time the property was acquired, that the legislature will never modify that public easement so as to injure private property. That is a principle of legislation. I have cited the case in the 6th of Meeson & Welsby, and I find a case in Massachu setts to which I will call your attention. The legislation of Massachusetts is very strong on this point, and the first illustration I shall bring is, the case which arose under the charter of the Mill corporation which built the Milldam. They were required to make compensation, and certainly a case arose which seemed to be nearly as remote as could be very well devised, and it illustrates very clearly the principle of legislation which I have referred to. 2 Pickering, p. 33, Boston and Roxbury Mill Corporation vs. Gardner.
It requires no explanation to show that this case is inconsistent with the case (in the 12th of Cushing) of the Old Colony Railroad, where they held that they could destroy a wharf and not pay any compensation; and in this case the court did not say that the legislature was compelled to make compensation in this way. It was argued with great ability by William Prescott, one of the ablest counsellors at that time, that there was no private right to a creek which was obstructed; that they were public navigable waters, and the court, for the purposes of the argument,said that might be admitted; they did not propose to go
into the question, what the absolute rights were, but they said there was no injustice in making compensation of this sort, and the legislature which tries, not merely to conform to the written constitution, but to do justice, provided that this compensation should be made, and it was made. That is the principle they have always acted upon, and the accident by which the Old Colony Railroad was able to relieve itself from responsibility for destroying that wharf was merely accident. That is, the legislature passed a general law, and did not contemplate the particular injustice that resulted in this case. So in New York; the legislature, under a general law, or an ill-advised special law, did some wrong which they did not intend to. I have read the opinion of Senator Allen, that the legislature did not know what they were doing, when they passed that law.
Mr. BIRD. Has that law under which this injustice was suf fered ever been amended or repealed by our legislature?
Mr. SHATTUCK. No, because it is not probable that another case will arise. It is the general railroad act, providing that where a railroad takes private property, it shall pay compensation. It is not probable that another case would ever come up of that kind. It was a railroad company that owned the other wharf, and they never called attention to it. But I will not waste your valuable time in arguing that the legislature would not authorize a railroad in Massachusetts to destroy a man's wharf without compelling them to make compensation for it, if they knew it. Take other legislation in Massachusetts; our books are full of it, showing the greatest care on the part of the State. You know perfectly well, as a legal principle, that any public easement may be modified by the legislature, and the modification of such public easement is not taking private property; they might to-day close every highway in Boston, and every highway that leads into Boston or into the country if they choose, and if they choose to repeal the legislation in regard to it, they
need not make anybody compensation; but at a very early day in our history a law was passed that wherever a highway was discontinued by any town, city, or by county commissioners, and the power is vested in them, they shall make compensation. About thirty years ago a case arose where the grade of a street was reduced, and a party's property was seriously injured, and he brought action to secure compensation; but as there was no act relating to it, the court held that he could not recover anything, because it was a modification of a public easement which the legislature had control over; but the moment that case was decided, the legislature passed a law that whenever the grade of a street should be changed, compensation should be made to any party who should be injured thereby. They would not allow any such unjust principle to be applied practically, and to-day if a street is changed in any way by raising the grade or reducing the grade, by legislation, the parties are entitled to compensation.
The principle is this: that where parties have spent their money on the faith of the continuance of any public easement, the legislature will not modify it or destroy it without paying compensation. There is another illustration, and a stronger one, in the recent history of the legislation of Massachusetts. The value of property in many villages throughout the State is dependent upon its proximity to railroad stations; it is so for the purposes of business and for the purposes of residences.
When a railroad station is once erected, parties buy their estates and establish their business with reference to the location of that railroad station. But up to a recent period railroad companies have had absolute power to remove stations whenever they pleased; parties had no right to say to a railroad, “You shall not remove this or that station "; but the legislature passed a law within a few years that if a railroad station had been established for five years, so that parties could have acquired property
upon the faith of its remaining there, it should never be changed without the consent of the legislature. Undoubtedly the legis lature has acted upon it, and refused changes in many cases; and undoubtedly if parties were to be seriously injured, they would not allow any such change without compensation in some way. That is the law in England; that is the law in Rhode Island. I have not investigated it recently, but I have no doubt it will be the law in most of the States before a long period. It is a just principle, that when public easements have been so used that parties have acquired property on the faith of them, they shall not be modified so as to destroy private property.
You must, therefore, if you propose to fill up these flats in the rear of Beacon street and Brimmer street, and destroy this property, you may not exceed the power of the legislature,you must adopt a new principle of legislation; you must commit an act of injustice which no legislature, as far as I know, has ever yet been guilty of. But I go one step further than this.
I don't know that it is contended that this great change in this tidal basin, which I understand is contemplated, is to be made solely for the benefit of the harbor. I take it if that were the sole purpose, to benefit navigation,- the committee would leave the question to the United States, to whom the jurisdiction belongs. Whenever money is to be expended to improve navigation, we go to Washington; under the Constitution, under the provision giving Congress the right to regulate commerce, they protect the harbor, they establish light-houses, they make all arrangements necessary for carrying on the commerce of the civilized world; and if this were the only purpose, undoubtedly you would go to Washington and seek their aid, or at least consult them, before it could be carried through.
It is unquestionably for the purpose of making money by utilizing the land of which the commonwealth has the fee. It is in the nature of a land speculation, or a land investment, or a land improvement, as you may choose to call it. Now, assuming that
there are no private rights here to be affected, and it stands simply as a question between the commonwealth of Massachusetts and the law of nations, and the general government and its own citizens generally, I assert distinctly that according to the established principles which regulate the legislation of the civilized world Massachusetts has no right to speculate in this property. Let us look at the relations of the parties here. This is a part of the navigable waters of the civilized world. By the constitution, the government of the United States has entire control of it for the purposes of commerce. Nobody denies that Congress could prohibit any filling here, if they choose; they have that control; it is in the nature of an easement on this property, — in the nature of an easement. On the other hand, the State undoubtedly has the fee. They have the police powers over it, subject, however, to any legislation by the government of the United States. They can use it for the purposes of health; they can do anything to promote navigation if they choose, subject always to the power of the general government; they can use it or modify it to improve the fisheries, or for any general purpose,-but the commonwealth holds them as trust, solely, for the purposes of navigation, and has its police powers solely for the purpose of using that water or regulating that water for the purposes of navigation and the public health and fisheries. It holds it as a trustee before the whole civilized world, and the trust with which it is charged is to use it as navigable water, to use it for health, to use it for fisheries, but not to use it for land speculations. It has always been recognized as a right of one nation to object to the destruction of the navigable waters of another. There was an instance, and rather an unfortunate one, which any of you will recollect, in the early part of the late war, when Lord John Russell protested against the obstruction of Charleston Harbor. It was a hasty act and unwise; there was no permanent intention to injure that harbor, but the principle upon which the appeal to our government was