
    Augustus Russ vs. City of Boston.
    Suffolk.
    March 16, 1892.
    June 24, 1892.
    Present: Field, C. J., Holmes, Knowlton, Lathrop, & Barker, 33.
    
    
      Harbor and Land Commissioners — Statute — Middle Brewster Island.
    
    The St. of 1881, c. 196, does not authorize the Board of Harbor and Land Commissioners to locate and define the courses of the boundary lines between adjacent cities and towns on land which is never covered by tide water, whether the land is an island or on the mainland.
    Middle Brewster Island in Boston Harbor is a part of"the town of Hull and of the county of Plymouth.
   Field, C. J.

This is an action to recover the amount of certain taxes assessed to the plaintiff as owner of Middle Brewster Island, in Boston Harbor, and paid by him to the city of Boston under protest. The question is whether the island is a part of the city of Boston. It is agreed in substance that the island is a part of the town of Hull, unless in 1884 it was made a part of the city of Boston by the report of the Harbor and Land Commissioners acting under the provisions of the St. of 1881, c. 196. We have some doubt whether a case of this kind ought to be determined on an agreed statement of facts, unless the facts agreed, so far at least as they relate to facts of which the court can judicially take notice, conform to what is known to be the truth. The briefs have called our attention to the Records of the Governor and Company of the Massachusetts Bay, whereby it appears that in 1641 a plantation was ordered to be set up at Nantascot, and it was “further ordered, that the iland called Pedocks Iland, & the other ilands there not otherwise disposed of, shall belong to Nantaskot,” etc. 1 Mass. Col. Rec. 320, 326. See 2 Mass. Col. Rec. 46. In 1644 it was ordered “ that Nantascot shall be called Hull,” (2 Mass. Col. Rec. 74,) and it was made a town in 1647. 3 Mass. Col. Rec. 106. A dispute having arisen with regard to the Brewster Islands in 1663, the General Court adjudged “ that the islands now in question, called & knoune by the name of Brewsters Islands, doe of right belong unto the inhabitants of Hull.” 4 Mass. Col. Rec., part 2, 81. Hull was set off from the county of Suffolk to the county of Plymouth by the St. of 1803, c. 14.

The agreed statement of facts contains the report of the Harbor and Land Commissioners dated November 1,1884, which they filed in the Registry of Deeds for the County of Suffolk, in the Registry of Deeds for the County of Plymouth, and in the office of the Secretary of the Commonwealth, pursuant to the St. of 1881, c. 196. It is agreed that “ by the terms of said report the Middle Brewster . . . would be within the city of Boston.” We do not so construe the report. The report purports to define the boundary line of tide water between Hull and Boston. It begins in the following manner : “ The boundary line between the tide waters of the town of Hull and the city of Boston is located and defined as follows : ” and then follow boundary lines from point to point in certain water spaces as marked on a plan. The report concludes as follows: The boundary line between the tide waters of said town and city as above described is also the boundary line between the tide waters of the county of Plymouth and the tide waters of the county of Suffolk.” There is nothing whatever in the report which purports to deal with habitable land, and we think it was not the intention of the Commissioners by their report to affect in any way the boundaries on the land of the town of Hull or of the city of Boston or of the county of Plymouth or of Suffolk. We are confirmed in this view by an examination of some of the annual reports of the Commissioners. In the annual report for the year 1882, the Commissioners consider this subject on pages 22-27, and the result reached by them appears in these words : “ In other words, the board is charged with the duty of an equitable division of the tide-water areas of the Commonwealth between the several cities and towns for purposes of municipal jurisdiction, and for the enjoyment of the rights and privileges which result therefrom. The board has no power to change the limits of their land jurisdiction. It leaves these as it finds them. But there is no apparent reason why one town may not have jurisdiction over an island surrounded wholly or in part by waters which are within the jurisdiction of another town.”

F. R. Jones, for the plaintiff.

A. J. Bailey, for the defendant.

We agree with the Commissioners that the St. of 1881, c. 196, does not authorize them to locate and define the courses of the boundary lines between adjacent cities and towns on land which is never covered by tide water, whether the land be an island or on the mainland. This construction of the statute and of the report renders it unnecessary to consider most of the questions argued. The Middle Brewster Island is still a part of the town of Hull and of the county of Plymouth. The judgment rendered for the defendant by the Superior Court is reversed, and there must be,

Judgment for the plaintiff.

B. L. M. Tower was permitted to file a brief for the town of Hull.  