The Appeals Court’s recent decision in Maslow v. O’Connor at first glance appears straightforward. The holding reiterates a familiar tenet of Chapter 91 licensing – that a Chapter 91 license doesn’t affect pre-existing property rights. But the result is quirky: in the name of preserving access to tidelands, the court in effect extends a private way over filled tidelands in which public trust rights (the right to “fish, fowl and navigate”) have been extinguished.
The basic facts in Maslow are:
- Plaintiffs own lots abutting Rackliffe Street in Gloucester, which runs north-south and originally extended to the mean high water mark of Wonson’s Cove.
- Defendants own waterfront lots on either side of Rackliffe Street at its southerly end.
- In 1925, defendants’ predecessor was granted a Chapter 91 license authorizing her to build a seawall and place fill behind it, which created a strip of upland (the grassy strip) between the end of Rackliffe Street and