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City Document. — No. 10. 







AUGUST 30, 1858, 






18 5 8. 


In Board of Aldermen, Aug. 30, 1858. 

Ordered, That the Address of His Honor the Mayor, relative to 
the Back Bay Lands, be laid on the table, and printed for the use of the 
City Council. 

JOSEPH W. TUCKER, City Clerk. 

Cits &f llflsbnrj. 

In Board of Aldermen, August 30, 1858. 

To the Board of Aldermen and Common Council of 
Roxbury : 

Gentlemen, — 

The legal controversy between the Commonwealth, on 
the one side, and the City of Roxbury and town of West 
Roxbury, on the other, in relation to the Back Bay Lands, 
having been terminated by a decision of the Supreme 
Court, and the costs having been adjudicated and the ex- 
penses ascertained, it may be proper for me at this time 
to lay before the City Government a brief outline of the 
circumstances attending the progress of the suit, and the 
grounds on which were based the judgment of the Court. 

It has been believed for many years that all the land 
within the boundary lines and jurisdiction of Roxbury, not 
belonging to or claimed by individuals or incorporated 
companies, including, of course, the flats in the empty basin, 
actually belonged to Roxbury. The Colonial Grant of 
May, 1636, defining the bounds of Roxbury, and conveying 
the right and title to the soil, from the highest authority 
on these shores, reads as follows : 

" Ordered that all the rest of the ground, lying betwixt Dorchester 
bounds and Boston bounds, shall belong to the town of Rocksbury, 
easterly of Charles River, Rocksbury not to extend above eight miles in 
length from their meeting house." 

The boundary lines were established according to the 
description in the above grant — .and in 1823, when the 
Milldam or Western Avenue was constructed, the lines 
were again run, as originally established; and in 1836, an 
act of the Legislature confirmed to the City of Roxbury 
not only the jurisdiction over the territory between those 
lines, but the. " territory " itself. Furthermore, Roxbury 
has always claimed and held these lands — has mowed the 
grass on the flats for more than twenty years, and exer- 
cised all the customary rights of possession. 

This claim, within comparatively a few years, has been, 
disputed by the Commonwealth, and at the October term 
of the Supreme Judicial Court, in 1856, suits were insti- 
tuted by the Commonwealth and the Boston Water Power 
Company to dispossess the City of Roxbury and town of 
West Roxbury of a tract of land and flats in the Back Bay, 
amounting to about seventy-two acres. 

The time appointed for the trial of the suit instituted by 
the Commonwealth approached, and the expenses of a suit, 
extremely complicated, unusually difficult to investigate, 
and involving nice questions of law, being an important 
consideration, it was thought advisable to employ able 
counsel to examine the merits of the case, with a view to 
defend it with vigor, if it was worth defending, or to aban- 
don it, provided the claims of Roxbury could not in all 
likelihood be enforced. 

An opinion was expressed, after mature deliberation, 
that the case was a good case ; that Roxbury was entitled 
to the fee of the territory in dispute, and that, beyond all 
reasonable doubt, her claims could be established in a 
Court of Law. It was then determined, after consultation 
with the government of West Roxbury, that no labor or 
expense should be spared to defend claims, believed to be 
founded on justice, and which were so essential to the in- 
terest of our city, even against the whole power of the 

Commonwealth and the influence of a colossal monicd Cor- 

Owing- to the peculiarly intricate character of the case, 
and the difficulty, I may say impossibility, of explaining to 
a jury the complicated evidence and legal principles in- 
volved, within the time usually allowed, it was agreed by 
both parties to waive trial by jury, and submit the case to 
a single referee. The Hon. Marcus Morton was selected 
as that referee, and he accepted the appointment. 

This gentleman had for many years held the office of one 
of the Justices of the Supreme Court of Massachusetts, 
and had acquired and always maintained a proud reputa- 
tion, not only as a jurist, but as a high-minded, honest, in- 
dependent man. On his decision, after a full hearing, and 
patient investigation of facts, the defendants were willing 
to abide. 

In the agreement to refer, the following language, de- 
fining the duties of the referee, was used : 

"And the referee may make all needful views of the premises, and 
all reasonable orders for the proper hearing and determination of the 
cause, and the referee shall report all questions of law arising in the 
cause to the Court for revision and final adjudication : meaning hereby, 
that the referee shall award and determine the whole cause, including 
the law and the facts, but subject to the review and final adjudication 
of all matters of law in the cause by the full Court." 

The hearing was had during the Summer of 1857, and 
occupied many days. The cause was managed, on the part 
of the State, by Sidney Bartlett and T. B. Hall ; for the 
City of Roxbury, by Richard Fletcher, Joel Giles, and Wil- 
liam Gaston, the City Solicitor. To the ability and unre- 
mitting attention of. these gentlemen to the case, from the 
commencement to its close, I can bear strong testimony. 
The City Solicitor has spent much time, and has been un- 
sparing in his efforts to cause a full investigation to be 
made in this case — and if the result of the suit has not 
been attended with success, it is not owing to any want of 


zeal, talent, or industry on his part, or on the part of other 
counsel engaged. 

The result of the reference was such as was confidently 
anticipated from the character of the facts, and the argu- 
ments employed in behalf of Roxbury. The Referee, in 
his report, speaking of the Colonial Order or Grant of 
May 25, 1636, already alluded to, says: 

" I am therefore of opinion and decide that this order was a grant in 
fee of all the land described in it : that the description covers all the 
land lying between Dorchester and Boston, as the limits of the two 
towns then existed, which had not before been granted to Roxbury. 
That inasmuch as every part of the territory granted lay easteidy of 
some parts of Charles River, and southerly of some parts of said river, 
I cannot believe that the introduction of the words, ' easterly of Charles 
River,' if they apply to the granted new territory rather than the whole 
town, was intended to divide it, and to grant one part and reserve the 
other part of the territory, which was included in the general descrip- 
tion of the whole. I am, therefore, of opinion, and do decide, that the 
Act of 1G36, in the liberal and proper construction of the language 
used, operated as a grant, and vested in the then town of Roxbury the 
fee of the demanded premises." 

In concluding his report, the Referee says : 

" Having duly considered the whole case, and all the several grounds 
taken and urged by the counsel on both sides, and given my opinion 
on the same as before stated, I do now report and decide and award 
that the Defendants have established their title to the fee of the de- 
manded premises as described in the Attorney General's Information, 
and therefore, that the Commonwealth take nothing by their Informa- 
tion aforesaid, and the costs be taxed according to law." 

The Referee thus decides that the Colonial Grant of 
1636 was a grant of land — and indeed this was admitted 
by the Counsel for the Commonwealth. The question then 
arises in relation to the fact, where were the boundaries of 
this Colonial grant ? It was shown by indisputable evi- 
dence that the tract of land claimed by the State was with- 
in the boundaries of that grant, and therefore belonged to 
Roxbury. Such was the decision and reasoning of the 

But this award, expressed in language so clear and con- 
clusive, was not a final settlement of the case. It was 
necessary for its validity, to receive the sanction of the 
Justices of the Supreme Court. And with what was be- 
lieved to be a strong case, with such a decision in favor of 
Roxbury, after a laborious investigation, and on a question 
of fact and not of law, our citizens were justified in 
believing that this long-contested question would be finally 
settled in favor of our City. 

The case came before the whole bench of the Supreme 
Court, at the sessions in March last. Mr. Fletcher ap- 
peared for Roxbury. No point of law being mooted, there 
was no room for an argument. He contended, howev- 
er, that the Referee having decided as matter of law, 
that the act of 1636 was a grant in fee of all the land 
described in it ; and the Referee having also found by the 
evidence and view, and decided, as matter of fact, that the 
demanded premises were embraced within the descriptive 
bounds of that grant, the award was decisive of the case, 
and conclusive upon the parties under the submission. 

The opinion of the Court was delivered by the Chief 
Justice, on the 21st of June last, by which it appeared that 
the decision of Marcus Morton, — that the lands in question, 
in virtue of the original grant, belonged to Roxbury, — 
was reversed, and the case was thus decided by the highest 
judicial authority, in favor of the Commonwealth ! 

The opinion of the Court, setting forth the reasons for 
this unexpected decision, was drawn up and delivered by 
the Chief Justice. It was a learned and elaborate docu- 
ment, occupying nearly two and a half hours in the read- 
ing. • The Chief Justice described the matter in contro- 
versy as follows : 

" The Commonwealth claim to hold and own, as proprietors in fee, 
the soil of that portion of the Back Bay, within the empty basin, which 
before the tide-water was excluded from said Bay by the erection of the 
Mill Dam or Western Avenue, was within the ordinary ebb and flow of 

the tide, and which lay below, that is, so far distant from the uplands, 
as to be below the line of riparian proprietorship." 

The Court, in putting a legal construction upon the 
grant of 1636, already alluded to, were unable to concur 
in the conclusion to which the arbitrator came. They 

" "We are of opinion that it [the Colony grant] did not pass to the 
grantees, any right, title or interest in the soil of the flats of Charles 
river, or the Back Bay, below the line of ordinary high water mark : 
and of course they could acquire no title to flats lying more than one 
hundred rods sea-ward below such. high water line." 

In support of this opinion, they decide that by the com- 
mon law of England, as it stood long before the settlement 
of this country, the title to flats was in the king, that it 
was held by him "in trust for public uses," that 

" The king held the sea-shores as well as the land under the sea, 
that he held the same, publici juris, for the use and benefit of all the 
subjects for all useful purposes, the principal of which were navigation 
and the fisheries." 

Also that 

" A grant of lands lying on the sea-shore, or an arm of the sea, 
where no such law as the Colony Ordinance of Massachusetts of 1641 
has been adopted, will not convey land beyond high water mark, unless 
the intention to grant a right in flats is expressly stated." 

And further — 

" Even if the colonial act in question had been passed after the ordi- 
nance of 1641, extending a qualified right of the soil of riparian owners, 
to the extent of an hundred rods, and the grant had been bounded 
on the sea, it could have carried the right of the grantee to one hundred 
rods only below the ordinary high water line, and would not have inclu- 
ded the flats in question, which are beyond one hundred rods." 

The Court, in this important legal " Opinion," thus'sum- 
marily disposes of a " great mass of evidence, which made 
part of the case :" 

" All the early acts fixing boundaries between towns, all the peram- 
bulations of lines made by selectmen, and recorded in town books, have 

no tendency to prove or disprove title : they alfect the question of ju- 
risdiction only : and for the purposes of the present enquiry may be 
laid out of the case.'' 

The Chief Justice concludes the opinion as follows : 

" He [the referee] reports that in his opinion the title to the flats in 
question is in the Commonwealth, unless it has been alienated by the 
government, or one of its predecessors. No such act of alienation or 
grant is relied on, or given in evidence, except the Colony ordinance of 
May, 1G3G. The referee was of opinion that this act did operate as an 
alienation in favor of the respondents. But we are of opinion, that 
upon the facts skoiun and referred to in the report, the construction of this 
ordinance ivas a question of law, and upon that question, this Court are 
of opinion that that act did not aii'ect such alienation, and therefore 
that the title still remains in the Commonwealth ; — concurring in all 
other respects with the referee." 

The judgment of the Court is rendered as follows : 

" Report of the Referee had and accepted, subject to the opinion of 
the whole Court in matters of law; the Court are of opinion in point 
of law, that the grant from the Colonial government, to the town of 
Roxbury, in May, 1G3G, did not include any land bordering on the sea 
or tide-waters, below ordinary high-water mark, and therefore that judg- 
ment for their title to and possession of the demanded premises be en- 
tered for the Commonwealth. Judgment for the Commonwealth." 

This opinion delivered by the Chief Justice, and em- 
bracing views so unfavorable to Roxbury, so contrary to 
the decision of the Referee, and so directly antagonistic to 
the views which the inhabitants of Roxbury had for years 
been led to consider not only righteous, but legal, also, 
caused much surprise as well as disappointment among 
our citizens. And indeed by some unsophisticated per- 
sons, who had watched the proceedings with interest, and 
wero not aware of the different phases, altogether unlike, 
which legal questions can be made suddenly to assume, it 
was thought somewhat remarkable that while the counsel 
for the Commonwealth admitted that the grant of 163G 
was a grant of land, of soil — the Court should decide 
that the metes and bounds of that grant, settled merely 
the question of jurisdiction — and also that the Court 


should receive and thus virtually accept the award of the 
Referee, which was based entirely on fact, and set it aside 
on a point of law, which was not alluded to by the 
Referee ! 

The recording of this judgment was deferred for a few 
days at the request of the counsel for Roxbury, to allow 
time to show why judgment should not be entered for the 
Commonwealth. At an appointed time the counsel for 
Roxbury appeared before Chief Justice Shaw, and justices 
Mctcalf and Bigelow, and urged various reasons why judg- 
ment should not be entered, among which was the follow- 

The Referee was authorized te decide on all questions 
of fact — while questions of law were to be reserved for 
the decision of the Court. Now the Referee had decided 
in favor of the claim of Roxbury to tho lands in question, 
entirely on facts clearly proven, so that no opportunity 
was given for the Court to controvert, or entertain any 
questions of law. The Referee had decided that the eml 
and jurisdiction, within certain metes and bounds, and such 
as Roxbury claimed, belonged rightfully to Roxbury. By 
setting aside this award, tho Court would determine not a 
question of law, which it was within their province to do, 
but a question of fact, which by the terms of arbitration 
should bo left with the Referee. 

The Court took time to consider the reasons thus urged ; 
but on the third of July, finding no sufficient cause to vary 
their proceedings, caused judgment to be entered for the 

This protracted and expensive legal controversy is thus, 
in all likelihood, settled. The mode of its settlement 
furnishes another to the long list of cases, illustrating the 
proverbial uncertainty of the law. 


But while it would have been gratifying to have had the 
claim of Roxbury to this piece of land, valuable from its 
location, confirmed by the Supreme Court, it is a source of 
consolation to know that, believing our claim to have been 
founded on justice, no proper means have been left untried 
to retain possession of those lands : and although we felt 
confident that our right and title to the fee in those lands 
could be maintained in a Court of Law, our City Govern- 
ment has never based any public actions or expensive im- 
provements on that expectation. And if this result will 
servo' to place in a stronger light than before, that the 
whole resources of our Government are in the taxation of 
the property of our citizens, and thus induce the adoption 
of a careful and economical system of expenditures, it will 
not be altogether without benefit. 

It has been decided that the fee of the disputed lands in 
the Back Bay is in the Commonwealth. But it cannot be 
disputed that the jurisdiction over these lands and flats is 
in the City of Roxbury. An effort was made during the 
legislative session of 1857 to change the jurisdiction, by 
annexing to Boston all the lands and flats lying between 
Boston, on one side, and Brookline, on the other, and 
northerly of a line extending westerly from the junction of 
Cabot with Tremont Streets, and embracing about one 
thousand acres, or nearly one-third part of the whole terri- 
tory of Roxbury ! 

A project, however, so manifestly unjust and arbitrary, 
was defeated. And should the attempt be renewed during 
the next session of the Legislature, so as to take from 
Roxbury the jurisdiction as well as the territory of the 
Back Bay, we have too much confidence in the uprightness, 
independence, and sense of justice of our legislators, to 
believe that this iniquitous project, notwithstanding the 
magic influence of wealth and power, can ever be carried 
into effect. 


Accompanying this Report, is an Order for the payment 
of expenses incurred in defending the suit against the 

I have the honor to be, Gentlemen, 

Very respectfully, Your most obedt. scrvt.,