The man without a county: Judge rules man's island lighthouse isn't part of Hull, but stops short of saying where it does belong

A Land Court judge has ended a stormy dispute between Hull and the Malden man who bought Graves Light in Massachusetts Bay just beyond Boston Harbor: The lighthouse isn't in Hull, so its owner doesn't have to pay town property taxes or let town inspectors judge his work in converting the tower into a family vacation home.

But now the question becomes: If not Hull, where? In Massachusetts, unlike in other states, tradition and some legal precedent hold that all land has to belong to some city or town. But early on in the case, Boston, Winthrop and even Nahant all declared the lighthouse was not within their municipal boundaries.

In her ruling this week, however, Justice Diane Rubin was careful not to declare that David Waller's lighthouse - the top part of which remains in use as an automated beacon and foghorn - and its surrounding shoals are the only unincorporated pieces of land in the entire Commonwealth, part of neither Boston and Suffolk County nor Hull and Plymouth County.

Rubin said she did not have to rule in favor of Waller's argument that he owns ten acres, more or less, of unincorporated - often ocean-covered - land because the key issue in the case was simply whether his outcroppings were part of Hull. "Nor should that issue be decided without the Commonwealth and the City of Boston joined as parties to the case," she said, adding other communities near Hull might also want a say.

In making his case to get Hull to leave him alone, Waller argued that what he bought from the Coast Guard in 1993 for $934,000 was, in fact, a no man's land, subject to no municipality's taxation or official oversight and that other legal precedents supported his contention.

In his filings, Waller did not go as far as the family that started Sealand off the coast of England and argue that his shoaly domain is entire of itself; he concedes it is part of the Commonwealth of Massachusetts.

In fact, his legal wrangling with Hull began after he sought permission in 2018 from state environmental officials to repair a pier at the lighthouse - beneath the 40-foot ladder that is the only way into the structure. State officials contacted Hull's Conservation Commission, which said it had no problems with the work, but the next year, the town assessors added Graves Ledge to its property rolls and began sending Waller tax bills, and then penalty notices when he refused to pay - and then warning that he cease what has become more than $1 million in renovation work without oversight by town inspectors.

In its filings, the town of Hull praised Waller for his extensive work in restoring a historically important lighthouse, but added:

Any operation done without proper authorization or permitting and inspections, could lead to lighthouse failure and/or an unnecessary risk posed to vessels operating in the boating lanes near The Graves, persons, the Plaintiff, including workman on the island, and as a result poses unnecessary risk to the municipalities within the [Boston Harbor] Recreation Area and the public at large.

In a bench trial that spanned several months and in her ruling, Rubin considered conflicting documents and maps dating all the way back to 1634, when the Massachusetts Bay Colony Court granted Peddocks Island to the inhabitants of "Charlton" (which she and the experts in the case believed meant the then town of Charlestown) for "one & twenty years for the yearly rent of twenty shillings" - unless somebody settled what was then the nearby peninsula of Natascett, in which case that place would get the island.

Sure enough, in 1641, the Massachusetts Bay Colony Court ordered the creation of a fishing settlement at Nantascot and decreed that "the Iland called Pedocks Iland & the other ilands there not otherwise disposed of, shall belong to Nantaskot, to bee to the use of the inhabitants & fisherman, so soone as they shall come to inhabite there." In 1644, the court renamed Nantaskot as Hull. In 1652, though, the colonial general court granted "all those small ilands lying within the bay betweene Allerton Poynt & Nahant, not hereto fore graunted" to Capt. John Leverett, who became a colonial military, political and business leader from Boston - despite his vigorous opposition to the religious repression then practiced in the colony.

But over the centuries, maps, surveyors and eventually even a Harbor and Lands Commission set up by the state Legislature could not agree whether Graves Ledge was part of what was renamed the town of Hull, Boston or some other place. Some maps showed it within Hull's borders, others showed it within Boston's.

In 1903, the issue disappeared when the state sold the outcroppings to the federal government, so the Coast Guard could build a lighthouse on it to guide ships into a newly enlarged channel into Boston Harbor. In the 1970s, the Coast Guard automated the light and the last keeper left. Then the Coast Guard decided to try to sell off the lighthouse and the surrounding shoals. It offered them to nearby communities first, but none wanted it, so in 2013, it put the lighthouse up for auction and Waller, also known for his collection of large neon signs, made the highest bid.

In addition to listening to surveyors on both sides and pouring through all those written records, Rubin - accompanied by lawyers for both sides and interns for the lawyers - went on a tour of the harbor in general, and the Graves site in particular, on the afternoon of June 13, 2022:

From the court docket:

Rubin wrote this trip helped form her opinion that Graves Ledge was not in fact, part of the Brewster Islands, which belong to Hull:

As observed during the View, the islands identified above [other Harbor islands] were each located at a slightly higher elevation than the ocean and had greenery and vegetation growing on them, including vegetation such as grass, shrubs, and trees. Several had sandy beaches. In contrast, these islands appeared distinct from Shag Rocks and Roaring Bulls, which are better described as craggy rock structures, protruding from the ocean. Graves Ledge also appeared as a cluster of craggy rock structures, grey and barren, with only some visible green (seaweed perhaps) at the waterline, but without upright growth or vegetation.

During the boat trips both eastward and westward, it was observed that Graves Ledge was located some distance from the other islands and rocky structures described above.

But more than the differing appearances of the islands and rocks, Rubin called upon documentation from before the Revolution to form her conclusion that Graves Light is not part of Hull - because back then, it was not considered part of the Brewster Islands, which were granted to Hull:

Although some relatively recent documents describe Graves Ledge as one of the Brewster Islands, the maps contemporaneous with the 17th century grants do not. Looking to contemporaneous maps, Graves Ledge is labeled separately from the Brewster Islands on both the 1681 Map and the 1689 Map. It is also labeled separately on maps dating from 1694, 1776, 1801, 1819, 1843, 1903, and 1932. ... I credit the testimony of Arsenault [the surveyor hired by Waller] that this contemporaneous, distinct, and consistent labeling is a strong indication that Graves Ledge was not considered to be part of the Brewster Islands at the time of the colonial grants.

Rubin also expanded on the whole no-man's land issue - and why she wouldn't rule on it:

I decline to wade into these deep waters, because I conclude this issue is not squarely before the court. The LLC's Amended Complaint includes only a single count, seeking a declaratory judgment that Graves Ledge is not within the corporate municipal boundaries of the Town. The Town's Counterclaim, in turn seeks a declaration that Graves Ledge is within its municipal boundaries. There is no claim pending before the court relating to unincorporated land and I conclude it may be prejudicial to the LLC and the disclaiming municipalities to decide that issue now. Indeed, Arsenault testified that he was not asked to research, or provide any expert testimony, as to whether Graves Ledges was unincorporated land, such that he did not have an expert opinion on whether land in Massachusetts can be unincorporated or where Graves Ledge might be located if not in Hull. ... This issue was not before the court when the Commonwealth, Nahant, Boston, and Winthrop were given notice of this dispute and each filed a stipulation of dismissal.

Still, she briefly considered Waller's and the town's sides on the question:

The Town argues that there can be no unincorporated land in the Commonwealth. The primary basis for this argument is the taxation statute. According to this theory, all land is subject to taxation, unless exempt, and the process for taxing property is by the local government. See G.L. c. 59, §§ 2, 2A, 23A, 38; G.L. c. 60, § 2. According to the Town, Graves Ledge was exempt when it was owned by the United States, but after it was ceded and sold to LLC [Waller], it became subject to taxation and must be taxed by Hull, since the other surrounding municipalities have disclaimed their interest. The Town also cites to the Commonwealth's Comprehensive Emergency Management Plan, prepared by the Massachusetts Emergency Management Agency, which states that "there are no unincorporated areas of the Commonwealth." Cameron [the town's surveying expert] testified that in his experience as a professional land surveyor he has "never come across land that was not associated with any city or town in the Commonwealth."

The LLC [Waller], on the other hand, contends that unincorporated land is not that unusual. The LLC directs the court to a number of references to unincorporated land in the Massachusetts Constitution and in historical state statutes, dating from 1807 to 1832 to support its position. See Const., Part II, c. 1, § 2, art. 2 (providing a process for legislative representation of "inhabitants of plantations unincorporated"); Const., Part II, c. 6, art. 10 (referencing "assessors of the unincorporated plantations"); Resolves Jan. 1832 – Apr. 1834, c. XXXVIII (Mar. 2, 1832); General Laws May 1828 – Mar. 1831, p. 544, c. XXXV (Feb. 7, 1831); General Laws 1837 – 1838, p. 426, c. CXXXIX, § 1 (Apr. 17, 1838); General Laws May 1805 – May 1809, pp. 27–28, c. XXV (June 16, 1807); General Laws May 1818 – Feb 1822, p. 515, c. LXII, § 1 (Feb. 13, 1821). The LLC also points out that being within the jurisdiction of a town is not a prerequisite to taxation, because the Massachusetts Constitution provides that the "oldest incorporated town adjacent to any unincorporated territory" is to "make valuation of the polls and estates of such unincorporated territory." Const. Part II, c. 1, § 2, art. 2. It is of note, however, that the LLC's citations predate the [Harbor and Lands Commission]'s authoritative 1901 HLC Atlas, which set municipal boundary lines for Hull, and other municipalities.

Based on the 1901 HLC Atlas and the record before the court, it appears that Graves Ledge lies within Boston's tide waters, even though Boston filed a stipulation of dismissal in this case wherein it "determined that the subject property lies outside the corporate limits of the City of Boston, and therefore makes no claim to jurisdiction." Indeed, Arsenault testified that if he had to wager a guess about where Graves Ledge might lie, that "it may be in Boston but [he] can't give an expert opinion on that."

From the 1901 Harbor and Lands Commission Atlas - which doesn't even show Graves Ledge on its map of Hull borders: