The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1899-04-02
RIGGS OPINION.
Grace Church Opposition
to the State Mutual
License.

The city solicitor has rendered an
opinion on the matter Of the distance
separating Grace church and the State
Mutual restaurant. By Mr.. Riggs in
depreciation, if a man owns a piece Of
land he also owns the space above it,
even to the heavens and to cores
ponding extent In the other direction.
The communication follows:
Gen. Josiah Pickett. Chairman License
Commissioners
You have asked my opinion as to the
authority of the license commissioners
TO legally grant a second class liquor
license to Arthur A. Brigham. The
facts, as 1 am informed. are these: His
application describes the premises on
which the license Is to be exercised as
follows: IAN of the premises occupied
as restaurant on the north end of the
ninth floor of the State Mutual build
ing, No. $40 Main street, consisting of
five rooms and three rooms on the tenth
floor of said building, and numbered
1OO1 1902, 1908, and stock in cellar Of
building in area in rear of Safe Deposit
and Trust Company, in said State
Mutual building.
The real estate OF the Grace church
adjoins the land owned by the State
Mutual Life Insurance Company, on
which is located the building within
which are the premises described in
Mr.. BrighaIn's application. A line hori-
zontally extended toward the real es-
tate of the Grace church from the end
of the rooms in the ninth story Of the
State Mutual building described in the
application would reach a point over
the line of the Grace church within less
than 20 feet AS stated to me in your
letter of March 81, no portion of the
premises described in the application is
within 100 feet Of the church premises
If measured from the ground or roof
of the church building" The owners of
the real estate of the Grace church
have objected in writing to the grant
ing of a license to Mr.. Brigham.
The inquiry calls for an interpretat-
ion of section Z, chapter 100, of the pub
lie statutes as amended by section l,
chapter 32S, of the laws of 1887, which,
so far as material to this question, is
as follows:
IF before the expiration of the 10
days following the publication of the
notice, as required by the preceding,
section, the owner of any real estate
within rs feet Of the premises describ-
ed in an application for a license to be
exercised by a common victualler to
sell liquors to be drunk on the premises
notifies the licensing board in writing
that he objects to the granting of the
license no license to sell intoxicating
liquors to be drunk on such premises
shall be granted"
/ am not aware that this section of
the statute has even been before the
courts for Interpretation
It is to be observed that the phrase
Owner of any real estate" is the
broadcast term of proprietorship that
could have been employed, and is
more comprehensive than would have
been the word :"building," Structure"
or tenement" Both by the statutes
and by common law in the common,
wealth and in the United States gener-
ally the term real estate" has been
held to include lands, tenements and
hereditamenLs, which were the terms
anciently employed as describing real
things, as well as all right hereto and
interest herein. There must inhere.
therefore, in this description of owner
ship all rights, privileges and incl
dents of ownership to real estate.
One of the most ancient maxims in
common law relative to ownership in
real estate is, "Cujus est solum eius est
usque ad coelum." This has been lu-
cidly commented upon by Blackstone
as follows:
Upwards. therefore, no man may
erect any building or the like to over
ndliS duOLtGI ltiiiIs anu uOWIWdIQB
whatever is in a direct line between the
surface Of any land and the centre Of
the earth belongs to the owner Of the
surface as in every days experience
in mining countries, so that the whole
land includes not only the face of the
earth, but everything under it or over
it,
In line with this view, it has been
held to be a trespass for one to fire
loaded firearms over land of another.
although nothing passes within the
boundaries of the land except the shot. |
1 am of the opinion that the statute
in question does not mean that the
measurement of % feet must be had
from the surface of the earth or of any
strT "ture that may be erected on the
land the Directing owner to the
premist- described in the application. |
but that til, Measurement should be by |
horizontal lii. from the premises de- |
scribed in the DUPLICATION toward the
of the Directing owner, and if |
such horizontal extension for 25 feet !
comes over the land of the Directing |
owner the license cannot be granted |
Yours very respectfully,
ARTHUR P. RUGG.