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approval of the several lines, this board has been indebted to the courtesy of the harbor line board.
LEGISLATION BY CONGRESS. The river and harbor acts of 1884 and 1888 had inserted in them certain sections, in the nature of general laws, relating to bridges, harbor lines and the removal of wrecks in navigable waters, the provisions of which have been stated and explained in previous reports.
In the recent river and harbor act of September 19, 1890, those sections have been amended in some particulars, and other sections have been inserted extending their scope, providing severer penalties for their violation, and delegating larger discretionary powers to the Secretary of War. For information and convenience of reference, the sections of the act of 1890, 4 to 12 inclusive, are appended to this report. *
The control of Congress over waters within the limits of a State, whether fresh or tide waters, is incidental to its power, under the constitution of the United States, “ to regulate commerce with foreign nations and between the several States."
Its right of control is therefore limited to such waters within the several States as are accessible to and navigable by vessels engaged in foreign or interstate commerce. It extends only to such water-ways and water areas as are suitable and necessary for the convenient passage and safe anchorage of such vessels. It does not extend to all the tide waters, any more than to all the fresh waters, within State limits; nor does it include the regulation of their use and improvement for any other purposes than those of navigation.
In the absence of legislation by Congress, the questions that have hitherto arisen have been chiefly those affecting the extent and limits of the powers of the States in respect to the regulation of waters within their confines. Now that Congress has undertaken to legislate in this direction, questions are not unlikely to arise touching the extent and limits of the power of the national government in the regulation of State waters.
* See Appendix, B.
value as a tidal reservoir of the main harbor, and the project of filling up the whole of it, as well as Fort Point channel which is its outlet, was recommended not many years ago by a committee of the legislature. The commerce in the bay, and especially along the channel, is now of too much importance to admit of the serious consideration of such a scheme.
Harbor lines were established in a portion of the bay as early as 1847, by chapter 278 of the acts of that year. These lines were extended around the entire bay by chapter 293 of the acts of 1856, and were slightly modified by chapter 310 of the acts of 1864.
Since these lines were established, the New York and New England railroad has been built solid across the bay, excepting a pile section of about 260 feet, and the part cut off by the railroad is no longer used or has any real value for navigation. The natural size of the bay was considerably enlarged some 40 to 50 years ago by digging away the marshes, to about the level of low water, for filling elsewhere. This artificial area, and other portions of the bay which are bare at low tide, are at times offensive and noisome.
There can be little question that it would be a public improvement to fill some portions of the bay and to deepen others. This can be done in such a way as to increase rather than diminish the present facilities for wharves and navigation. The harbor lines stand in the way of such improvement.
An act was passed in 1871, chapter 335, authorizing changes in the lines with reference to a similar improvement then in contemplation but not carried out. The present powers of this board under that act, by reason of subsequent legislation and upon other grounds, are not clear. It is recommended that such legislation be now had as will remove any obstacles which the existing harbor lines present to the improvement of the bay, under proper guards and limitations, in the direction above indicated.
Mystic RIVER IMPROVEMENT. This work involves the filling and improvement of about 90 acres of land and flats lying between the north and south channels of Mystic River. The original grant was to the Mystic River Corporation, in 1855, upon the condition of deepening and improving the river.
The Boston and Maine Railroad, which has acquired the rights and assumed the obligations of the original grantee, has completed the past year the bulkhead on the line of Elm Street extended, and tide water is now excluded from the whole tract of 90 acres. The platform along the face of the wharf below Chelsea bridge has been finished, and also above the bridge to a point about 150 feet beyond the dock; and more than half the piles have been driven for its remaining length.
The dredging the last year has been done in the river above Chelsea bridge ; but only a very small part of the excavation has been to the required depth. About 280,000 cubic yards of dredged material have been deposited on the enclosed area, mostly by methods of re-handling which are new to Boston harbor, and which have worked in a satisfactory manner.
The amount of filling and of required excavation in the river which remain to be done, is very much larger than can be accomplished, by the methods and apparatus now in use, within the time allowed by statute for the completion of the whole work, which expires March 1, 1891. A reasonable extension of the time may properly be granted.
GLOUCESTER, ESSEX AND Ipswich BOUNDARY LINES.
This board was directed, by chapters 77 and 97 of the resolves of 1889, to examine and define the boundary lines in tide water between the city of Gloucester and town of Ipswich, and between the towns of Essex and Ipswich, and to report to the next General Court.
A partial report was made to the last legislature. The survey and map of the territory in dispute, then under way, have been completed the past year.
A copy of the map, much reduced in size, on which the proposed boundary lines as defined by the board are laid down, is annexed to this report.
The water area in controversy is a tidal bay, about a mile in diameter and four square miles in extent. Much the larger part of it is dry at low water. Upon considerable portions of the flats, clams are found in abundance. Each city and town has the right by statute to regulate the taking of clams within its own limits. Hence arose the question, which the courts declined to settle, as to the boundaries in the present case.
The Essex River enters the bay at its south-westerly corner, and the Castle Neck River at its north-westerly corner; and both rivers flow out through the bay, between Castle Neck in Ipswich and Two Penny Loaf in Gloucester, to the sea.
No doubt has been felt about the proper location of the tide-water line for dividing the city of Gloucester from the towns of Essex and Ipswich. The present land line between Gloucester and Essex has been extended in the same course across the bay, and out through its mouth to the exterior line of the Commonwealth in tide water as defined by this board under chapter 196 of the acts of 1881. The map is not large enough to show its stretch beyond the mouth of the bay.
The only difficulty is in regard to the tide-water line between Ipswich and Essex. The second parish of Ipswich was set off and incorporated into the town of Essex by chapter 85 of the acts of 1818. of the boundary line between the old and the new town which is here concerned, is described in the act as “running down said brook to the creek, so called; thence continuing down said creek to the river; thence down the channel of said river on the north side of Hog Island to the sea.”
The river referred to is the Castle Neck River; and if that river had always kept to one and the same channel, no question would have arisen as to the boundary between the towns. On the contrary, the river has had at different times two very different channels. One, the present
That part channel as shown on the map, extends along the shore of Castle Neck on the north side of the bay. By the other, the river, after passing Story Island and the thatch banks, turns south, and runs down on the easterly side of Dilly Island and the adjoining marsh, and unites with the Essex River near Cross Island. The southerly portion of the last described channel is still open, as indicated on the map.
In 1792, as proved by ancient town maps, the river was flowing in the Castle Neck channel. Before 1830, it had shifted to the Dilly Island channel. The coast survey map of 1857 shows that it was then in the Dilly Island channel. Some six or seven years ago, owing probably to the damming of ice, it broke through the loose and shifting sand, and resumed the old channel along Castle Neck, where it now runs.
The changes from one channel to the other, which are liable to occur at any time from natural causes, have not been gradual but more or less sudden , and when one channel has opened, the other has closed up. If, then, “the channel of said river” is held to be the boundary line, a very large body of flats will be found sometimes in the one town and sometimes in the other.
It has seemed best, therefore, to divide the bay, as fairly as may be, by lines which are fixed and easy to run out. A cluster of rocks on the flats, known as the Black Rocks, is the only permanent landmark in the bay. A copper bolt has been placed in the highest point of the main ledge of these rocks for a monument.
As defined by the board and shown on the map, the boundary line in tide water between Ipswich and Essex begins at a point in the line which divides the city of Gloucester from said towns, which point bears South 40° East and is distant 435177 feet from the copper bolt; and runs thence North 400 West, passing through the copper bolt, until it comes to the channel of Castle Neck River on the north side of Choate's (formerly called Hog) Island. This line gives a larger portion of the flats to Ipswich, and a larger portion of the best clam-ground to Essex.
The boundary line in tide water which divides the city of Gloucester from the towns of Essex and Ipswich, as defined