Appeals Court Interprets Chapter 91 License as Extending Private Way Over Lawfully Filled Land
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