Town of Wellfleet v. Glaze

O’Connor, J.

(concurring, with whom Liacos, f., joins). I disagree with the court’s dismissal of the action on jurisdictional grounds. In my view, the Superior Court properly assumed jurisdiction under its general equity powers. However, on the merits, the town has demonstrated no right to the injunction it seeks. I therefore join in reversing the grant of summary judgment to the town.

*87Jurisdiction. The court concludes that jurisdiction is lacking under G. L. c. 214, § 7A (1986 ed.). However, whether or not G. L. c. 214, § 7A, provides jurisdiction, jurisdiction exists under the Superior Court’s general equity powers. In Commonwealth v. Stratton Fin. Co., 310 Mass. 469, 472-474 (1941), the court said that, while our decisions have generally been hostile to the enforcement of criminal statutes through injunctions, this hostility has existed only “in cases involving criminal acts not amounting to a true public nuisance in the conventional sense and not involving the use of or injury to public or private property, encroachments upon public easements and the like, and when the statute itself does not confer equity jurisdiction” (emphasis added). Id. at 473. Thus, in Attorney Gen. v. Jamaica Pond Aqueduct Corp., 133 Mass. 361, 364 (1882), the court held that the Attorney General could maintain an action in equity to protect the public’s fishing, boating, and other rights in the great ponds of the Commonwealth, because these rights “are regarded as valuable rights, entitled to the protection of the government.” See Attorney Gen. v. Williams, 174 Mass. 476,483 (1899), S.C., 178 Mass. 330 (1901), aff’d, 188 U.S. 491 (1903) (Attorney General allowed to maintain a suit in equity to enforce a public easement in open air space in Copley Square). As the court properly notes, ante at 82, the public fishing, fowling, and navigation rights in the defendant’s tidal flats are essentially a public easement over the defendant’s land. Furthermore, although the general public’s shellfishing rights in the defendant’s tidal flats are presently exercised exclusively by a private party, the licensee under G. L. c. 130, § 57 (1986 ed.), his license is granted to serve the public interest in replenishing the shellfisheries, not for the private benefit of the licensee. See Commonwealth v. Hilton, 174 Mass. 29, 33 (1899) (it is not to be assumed that the Legislature would grant exclusive fishing rights except to promote the public interest). See also G. L. c. 130, § 65 (1986 ed.) (§ 57 license to be forfeited for deficiency in planting, producing, or marketing shellfish). Thus, the proper public entity has the right to maintain a suit in equity to preserve the public’s fishing rights in this case.

*88The question then becomes whether the town is the proper party to enforce the public’s rights. Private interference with the public’s easement is treated in equity as a public nuisance, Attorney Gen. v. Williams, supra, and the Attorney General is generally the proper person to procure the abatement of a public nuisance, see Massachusetts Soc’y of Optometrists v. Waddick, 340 Mass. 581, 585-586 (1960). However, municipalities have been allowed to maintain an action to enjoin public nuisances either where a town has sustained special or peculiar damage in its corporate capacity, Dartmouth v. Silva, 325 Mass. 401, 404 (1950), or where “the regulation of the subject matter has been entrusted to the officers of a municipality, the inhabitants of which are peculiarly interested, and the wrongdoing alleged consists of a violation of the rules and orders of those officers,” Mayor of Cambridge v. Dean, 300 Mass. 174, 175-176 (1938).

The town has standing in this case under the rule set forth in Mayor of Cambridge v. Dean, supra. Under G. L. c. 130, § 57, as appearing in St. 1941, c. 598, § 1, private shellfish licenses are granted by town officials “upon such terms and conditions and subject to such regulations as the [town officials] issuing the same shall deem proper.” Further, “[t]he Legislature has consistently recognized that local municipalities ‘have a peculiar interest’ in protecting the shellfish resource,” Barlow v. Wareham, 401 Mass. 408, 411 (1988), quoting Commonwealth v. Bragg, 328 Mass. 327, 331 (1952). Thus, although the town is asserting that the defendant is violating a State statute, G. L. c." 130, § 67, rather than a local ordinance or regulation, this does not defeat the suit. The State criminal statute essentially enforces the license issued by the municipality under § 57. Where, as here, a town is attempting to protect the cultivation of shellfish under a town-granted license, the town should have standing to maintain the action. If disregard of the order of a town officer is required as well, see Mayor of Cambridge v. Dean, supra, the town’s verified complaint ¿leges that the defendant refused to comply with oral and written cease and desist orders issued by the town shellfish constable. Compare the facts and holding of Mayor of Cam*89bridge v. Dean, where the mayor of Cambridge was held not to have standing to seek an injunction against the operation of a piggery under the jurisdiction of the board of health of Lincoln. Therefore, I would hold that the court below had general equity jurisdiction to hear this matter, and that the town is a proper party to maintain this suit.

The merits. Under G. L. c. 130, § 57, licenses granted to private parties to plant, grow, and take shellfish shall not “impair the private rights of any person.” The town asserts that, even if the defendant is the owner of the tidal flats, see ante at 80 note 2, no private right of the defendant is impaired because the mooring of the defendant’s boats on the shellfish grant illegitimately interferes with the reserved public rights in fishing.

However, the public right to fish is not implicated in this case. The town has not alleged any interference with the licensee’s attempts to shellfish. Rather, it has alleged interference with the practice of certain types of aquaculture on the defendant’s property, that is, with the planting and growing of oysters and quahogs, the latter in pens covered with plastic mesh, on the defendant’s tidal flats. “We have frequently had occasion to declare the limited nature of public rights in the seashore.” Opinion of the Justices, 365 Mass. 681, 687 (1974), and cases cited. The public has reserved only the rights of fishing, fowling, and navigation, and any “natural derivative” thereof. Id. at 685-686. “Except as against public rights ... the private ownership is made perfect . . . ."Id. at 686, quoting Butler v. Attorney Gen., 195 Mass. 79, 83 (1907). The public’s “right of fishing [is] a public right to take the fish . . . whether moving in the water or imbedded in the mud covered by it.” Proctor v. Wells, 103 Mass. 216, 217 (1869).

Aquaculture is not fishing, nor can it legitimately be considered a “natural derivative” of the right to fish, any more than breeding game animals on someone else’s land could properly be considered a “natural derivative” of the right to hunt there. Thus, whatever right the public has to interfere with the private property rights of coastal owners for purposes “reasonably related” to the promotion of fishing as well as navigation, see *90Opinion of the Justices, supra at 686; cf. Crockery. Champlin, 202 Mass. 437, 441 (1909) (public has right to control property so far as is “reasonably necessary” for navigation), but see Opinion of the Justices, supra at 687 (“littoral owner may build on his tidal land so as to exclude public completely as long as he does not unreasonably interfere with navigation”); Locke v. Motley, 2 Gray 265 (1854) (owner could drive stakes into his flats even if they obstructed fishing by inhabitants of town), turning the tidal flats in which this defendant apparently owns the fee into a shellfish farm is too great an extension of the public’s right of “free fishing” to be “reasonably related” to that right. Cf. Porter v. Shehan, 7 Gray 435 (1856) (member of public could take shellfish from tidal flats, but not surrounding soil, except such soil as would necessarily be attached to the shellfish); Opinion of the Justices, supra (public right to navigation does not include right of passage over dry land); Butler v. Attorney Gen., 195 Mass. 79, 84 (1907) (public right to navigation does not include right to bathing on the beach; public has right to pass through the water “without any use of the land underneath”). Compare Barry v. Grela, 372 Mass. 278 (1977) (public has right to cross tidal flats to reach public jetty in order to fish from jetty); Locke v. Motley, supra at 267 (common right of fishing would not give plaintiff the right to fish by a method requiring the fixing of plaintiff’s stakes in defendant’s flats unless that method was needed to exercise the fishery rights).

Simply put, the right to fish cannot reasonably be construed to include the right to plant, cultivate, and propagate fish on the defendant’s tidal flats. Because there is no such reserved public right, the town is not entitled to an injunction restraining the defendant from mooring his boats on Shellfish Grant 783. I would hold that the Superior Court has jurisdiction over this action, but that the town has demonstrated no right to an injunction.