Wyman v. County Commissioners of Essex , 157 Mass. 55 ( 1892 )

Field, C. J.

The selectmen of the town of Marblehead, by the authority of the town, pursuant to the Pub. Sts. c. 82, § 10, made application to the county commissioners that “ Bessom Pasture ” might be taken for the enlargement of a burial ground belonging to the town. The vote of the town authorizing the application described the land to be taken as the “ Bessom Pasture . . . owned by William B. Wyman.” The petition of the selectmen also described its boundaries, one of which was “northwesterly by the harbor adjoining said burying ground.” The answer of the county commissioners states “ that the land taken as by said adjudication was and is known as the Bessom Pasture, and that no question of it was made on the trial.” The justice by whom the petition for certiorari was heard has “ found as a fact that the vote of the town included the land below high-water mark,” etc. On this finding, which is plainly warranted by the facts we have recited, it must be held that the adjudication of the county commissioners is valid, if flats lying between high and low water mark on the sea, which are private property and belong to the same owner as the adjacent upland, can be taken in connection with the upland for the enlargement of a burial ground.

The commissioners have adjudged “that necessity requires the enlargement of said Waterside Cemetery in the manner following,” etc.; and they describe the land to be taken, which includes the flats, and they adjudge that this land shall be a part of the burying ground. If the commissioners adjudge that it is necessary to take for the enlargement of a burial ground land on the sea between high and low water mark which is private property, we cannot say as matter of law that it is not necessary. If the flats cannot be filled or any structure built upon them without the license of the Board of Harbor and Land Commissioners, (Pub. Sts. c. 19, § 9,) still there may be reasons why they should be a part of the burial ground for its protection, of which the county commissioners are the judges. The interests of the public in land covered by the tides are not affected by the change of ownership, nor does that change in and of itself work any obstruction to navigation, and private property in such land is not exempted from being taken for a public use if it is necessary. Exceptions overruled.