FOREST commissioners' REPORT. 33 



the principles enunciated in the earher cases. In Massachu- 

 setts, one of the earhest states to adopt the constitutional provi- 

 sion, and in Maine, adopting the same provision in succession, 

 the courts have uniformly considered that it was, to be construed 

 strictly as against the police power of the legislature. 



Commonwealth versus Tewkesbury, ii Met. 55, decided in 

 1846, was a case where the legislature prohibited the owners 

 from removing "any stones, gravel or sand" from their beaches 

 in Chelsea as necessary for the protection of Boston harbor. 

 The court held that the statute did not operate to "take" prop- 

 erty within the meaning of the constitution, but was "a just and 

 legitimate exercise of the power of legislature to regulate and 

 restrain such particular use of property as would be. inconsistent 

 with or injurious to the rights of the public." Commonwealth 

 versus Alger, 7 Cush. 53, decided in 1851, was a case where the 

 defendant was prohibited by statute from erecting and maintain- 

 ing a wharf on his own land (flats) beyond certain fixed lines. 

 The court held that the defendant's title to the land (flats) was 

 a fee simple, and that but for statute he would have had full 

 right to erect and maintain wharves upon any part where they 

 would not obstruct navigation. It was not claimed that the 

 proposed wharf would obstruct navigation, but rather admitted 

 that it would not. The court further held, however, that the 

 statute was within the legislative power and not forbidden by 

 any clause in the constitution. The question was considered at 

 length in an opinion by Chief Justice Shaw, and the principle 

 stated as follows : 



"We think it a settled principle, growing out of the nature of 

 well ordered civil society, that every holder of property, how- 

 ever absolute and unqualified may be his title, holds it under the 

 implied liability that his use of it shall be so regulated that it 

 shall not be injurious to the equal enjoyment of others having 

 an equal right to the enjoyment of their property, nor injurious 

 to the rights of the community. All property in this common- 

 wealth, as well as that in the interior as that bordering on tide 

 waters, is derived directly or indirectly from the government 

 and held subject to those general regulations which are neces- 

 sary for the common good and general welfare. Rights of 

 property, like all other social and conventional rights, are sub- 



3 



