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Mr. SHATTUCK. Perhaps I don't fully understand the question; but if I do, in dealing with public easements the power of the legislature is such that it can destroy any amount of private property without making any compensation, or it can make a great deal of private property without demanding compensation; the action of the legislature can influence private rights to an enormous extent. The trouble grows out of our written constitution. The theory seems to be, that if a man has property, the courts take care of it, and the legislature cannot establish right, or take away right,—and certain kinds of property the constitution does protect; but certain other rights, which ought to be equally sacred to the legislature, are not protected by the constitution, and those rights are the right to the enjoyment of public easements, which are absolutely under the control of the commonwealth. But the legislature has provided, as I have shown, that these shall not be modified without making compensation, and I say that the legislature ought not to depart from that principle, and modify a public easement, without making compensation in this case.
Mr. KIMBALL. You began to argue about the right of the commonwealth to the flats in the line of Atlantic avenue; and your argument was to the effect that the commonwealth has no right there, because the legislature has not established it; my point is, whether legislative action, or non-action, determines anything in regard to the right of the question any way.
Mr. SHATTUCK. As to the legal title to those flats, of course It does not determine to whom the legal title to those flats belongs.
Mr. KIMBALL. Your point was, that the legislature had not established such a right, and consequently it does not exist. You and I know how legislation is managed.
Mr. SHATTUCK. We all of us know something how legislation is managed, but the legislature does not often do (and I don't think in Massachusetts has ever done) very great injustice. I
have always found, however legislatures manage things gener ally, that whenever it came to taking private property, or injuring private property, by the removal of public easements, the legislature is usually pretty fair, and is determined to do what is just and right.
Mr. PLUMER. How was it in the case of the Old Colony Railroad?
Mr. SHATTUCK. The legislature never contemplated anything of that kind; they made a general law, that railroads should not take private property without compensation. I don't claim for the legislature absolute wisdom.
Mr. DERBY. I think this case of the Old Colony Railroad is strained a little further than it will bear. The wharf of the Worcester road bordered on a channel of about three hundred feet in width. The company had no right to lay vessels at the end of the wharf, but only at the sides. The Old Colony Road carried its bridge across the channel to the centre of the end of the wharf, and the Boston and Worcester Railroad claimed damages for interfering with the berth of vessels at the end of the wharf. The court held, that they had no right to lay a vessel at the end of the wharf, and when they did so they were interfering with the use of the channel for navigation, and that they could not recover any damages for destroying the berth at the end of the pier. They did not decide that they should not be paid damages for their wharf, but the value of the wharf for commercial purposes and navigation was considered by the jury, and constituted the ground for the award.
Mr. SHATTUCK. It is a case in the 12th of Cushing: The Old Colony Railroad vs. Boston and Worcester Railroad, and they refused to give them any compensation for obstructing the channel at the end of the wharf, on the ground that they had no more right in the navigable waters at the head of the wharf than other people had; that they had no private rights in it, and, therefore, they would not pay damages for it. But the
legislature would never have authorized one road or one individual, if they knew it, to destroy a wharf by blocking up the end of it; and they never will, unless the legislature should be worse than it has ever been before.
I now come (and you will pardon me for occupying so much time) to the consideration whether this will pay or not; whether it ought to be entered upon at the present time. I suppose it is desirable to have this question settled forever, and I hope it will be. The question whether this ought to be entered upon is one depending somewhat upon its financial aspects. The commonwealth has already filled in on the North side of Beacon street 2,580,686 square feet. They began to fill that in, I think, about twelve years ago, and people began to build upon it about eleven years ago, in 1858, and have been building upon it ever since. The circumstances have been peculiarly favorable. It has been a period of great prosperity, when a large number of persons have become rich, and during which a large number of persons of wealth have been driven from their old residences in Boston. Perhaps all the committee know that during that period Summer street, Otis place, Devonshire street, Pemberton square, Tremont street, and other streets that were previously occupied as residences have been occupied by stores, and people have been driven out, and have most of them been driven into the Back Bay territory, so that the increasing demand for houses of the character put up on the Back Bay has been unprecedented; and yet during that period of eleven years, only 949,932 out of the 2,500,000 feet of land have been occupied.
To-day, after the lapse of eleven years since they began to occupy the Back Bay, only about one-third of the commonwealth's land there has been occupied.
Does that include the streets?
able area for selling.
That is without the streets. This is avail
Now, I need not discuss the question of policy, whether it is advisable for the commonwealth to put several million more feet of land into the market, when there is now more land unoccupied, which the commonwealth now owns or has already sold, than will be occupied in the regular course of events, in the next twenty years.
Then, take into consideration all the Water Power Company's land, and the West End Land Improvement Company's land. There is land enough on the south side of Beacon street to meet the demands of the population of Boston, for land of that character for the next forty years.
It has been contended that we needed land in the city of Boston, because the tax payers would go into the country, and in that way get rid of their taxes. But we have annexed Roxbury and Dorchester, and have land enough.
There is more land, therefore, of every kind, land for rich men, and land for poor men, in the rural part of the city and in the densely populated part of the city, ready for the market, than can be occupied for the next forty years, assuming that the city will go on and increase as rapidly as it has increased during the last ten years. Why, then, spend here six or seven millions of dollars, when you have now millions of feet more than will probably be needed for half a century? It is clear that it cannot pay the expense. It is necessary, in the first place, to build this wall. There is thirty or forty feet of mud here in parts of the Charles River, and in some places the channel is twentyfive feet deep. And where it is proposed to put the line, the wall must be built on the line of this channel; and such a wall requires to be built in a more expensive manner, for the reason that there will be in some places twenty-three fect before they come to hard bottom. It will cost, according to the lowest estimate, one hundred and eighty-nine dollars a foot on South Boston Flats. And it would cost two millions of dollars ($2,000,000) to build these walls on the margin of this channel. It will cost, at
least that. Then there is the filling in of the land. I have no desire to exaggerate; but it will cost, as it was estimated by the committee of 1867, fifty cents a yard on the South Boston Flats. It will cost as much as that here. It will cost more than that, because some of it is over forty feet in depth. It must be filled at an average of fifteen feet above low water mark; and the land would be filled twelve feet, and the streets eighteen, and on the average fourteen or fifteen.
The CHAIRMAN. Your figures make it out seventy feet.
Mr. SHATTUCK. Mr. Chairman: I beg your pardon; I do not say it was forty feet of mud in the channel, but forty feet from low water mark. I was speaking of where the channel strikes out. It is not forty feet of mud. If there were forty feet, there would be seventy-five feet on the flats. I was speaking of the general condition of the territory. It is forty feet before you come to hard bottom, and the new channel would be twenty-five feet deep; and the wall, to be built to the requisite depth, would cost from one hundred and ninety dollars to two hundred dollars a foot; and according to the lowest estimate it would be nearly two millions of dollars. And I understand that this wall on the South Boston Flats, where they have a better bottom than here, will cost at this rate. And there is to be in width four hundred feet of filling. The pressure is such that it requires a wall of great strength in order to resist it. The commonwealth's profit upon some of its lands at the Back Bay comes from the fact that they did not have to build any outer wall. When it filled in the Back Bay, it had the benefit of the mill-dam, which had been built at the expense of mill corporation, or at the expense of the stockholders; and this enabled them to make one or two million dollars. But if you have this wall to build, and you pay the price per foot, which the wall will cost, and add to that the seventy-five cents per foot, which the filling will cost, and that property will cost before it will come to the market, every foot of it, one dollar per foot; and that is putting it as low as any one thinks of putting it.