There Once Was Some Land In Nantucket ... Mass SJC Considering Public Trust And Torrens Title Case

Update: The court issued its opinion this morning.

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Is there anyone who can resist, when something Nantucket-related (mostly SFW) comes up, to launch into a limerick? We sure couldn't.

But we will spare you our bad poetry this time, and instead focus on an appeal now under consideration by the Supreme Judicial Court of Massachusetts that is similar to a case now under consideration by the Hawaii Intermediate Court of Appeals. Both involve Torrens-titled property and claims of "public trust." The timing is fortuitous -- but coincidental -- since Massachusetts and Hawaii are two of the last states to retain "Land Court" (Torrens) registration systems. What are the chances that two cases with similar issues are making their way up the chain?

In Arno v. Commonwealth of Massachusetts, No. SJC-10559 (argued Mar. 24, 2010), the SJC is considering whether property on Nantucket is subject to public trust claims after it was registered in the Land Court in 1922 by judicial decree. The property is former tidelands, having been filled pursuant to two licenses in the late 1800's. The Commonwealth appeared in the Land Court action and noted "the parcel...borders on tidewater in which the public has certain right," but that he had "no objection to the entry of the decree...provided [the parcel] is made subject to any and all rights of the public." The certificate of title issued by the Land Court does not show any encumbrances or reservations above the mean high water mark. 

Fast forward to the present day. The property owner wanted to construct a building landward of the 1922 mean high water mark. However, the agency considering his permit application determined that he must allow public access to the building because his land is still subject to the public trust. The owner objected, and asked the Land Court to clarify that the land above the mean high water mark is free of the public trust. The Land Court ruled in favor of the landowner.

The Commonwealth appealed, and is asking the court to review these issues:

1. Whether the Commonwealth's appeal form the trial court's 2004 and 2005 orders was timely, where it was filed within 60 days of the final Judgment that fully and finally resolved the controversy between the parties in the trial court.

2.  Whether the Commonwealth or the public or both retain any property or public rights in or over Arno's registered filled tidelands on Nantucket, which, prior to filling, were submerged lands (Commonwealth tidelands) and flowed flats (private tidelands).

3.  Whether the trial court erred in its determination that the test for regulatory jurisdiction over work on filled tidelands under the Public Waterfront Act, G.L.c. 91, is whether the Commonwealth or the public hold any property rights in those tidelands.

Brief of the Appellant Commonwealth of Massachusetts at 1. When the SJC solicited amicus briefs, it framed the central issue similarly:

The issue presented, among others, is whether a Land Court judge, sitting by special assignment as a Superior Court judge, correctly concluded that, with respect to a registered parcel of land consisting of filled tidelands, the Commonwealth lacked jurisdiction to require a license under G. L. c. 91, and regulations promulgated by the Department of Environmental Protection, for proposed construction on the property.

The Commonwealth asserts that "lawful filling does not extinguish public trust rights." What this means is that a property owner may get to fill tidelands, but the filled land is not really private property. At the oral argument, the Commonwealth argued that only the legislature can extinguish public trust rights, not registration in the Land Court. The property owner asserts that the 1922 Land Court decree "is not subject to collateral attack," and the Commonwealth "is barred by res judicata principles from now arguing that the Commonwealth and the public have proprietary rights in the Property other than those recognized below the 1922 mean high water mark by the 'Waterways Encumbrance.'" Brief for Plaintiff-Appellee Joseph V. Arno at 28.

Here are the merits and amicus briefs in the case:

• Brief of the Appellant Commonwealth of Massachusetts

• Brief for Plaintiff-Appellee Joseph V. Arno

• Reply Brief of the Appellant Commonwealth of Massachusetts

• Brief of Conservation Law Foundation Amicus Curiae

• Brief of The Real Estate Bar for Massachusetts and the Abstract Club Amicus Curiae

For a video of the oral argument, go here.

Stay tuned. When the SJC issues and opinion, we will post it.