even if there is an agreement in the lease that it shall belong to the lessee. Kutter v. Smith, 2 Wall. 491. It follows, therefore, that in the case stated it would not be lawful for a Massachusetts savings bank to loan money to the lessee secured by a mortgage upon the building, or land, or both. To the Super- 1899 March 4. A person who derived a settlement in Boston from his father, which prevented him from gaining a settlement there in his own right under St. 1874, c. 274, is within the exception of St. 1898, c. 425, and his derivative settlement stands. Your letter of February 28 requires my opinion upon the settlement of a certain person named therein, the facts being as follows: He was born in Boston in 1829, and has always resided in Boston. He derived a settlement in Boston from his father, who died in Boston in 1876, at the age of seventynine years. His mother died in Boston, at the age of eightyseven years. There was a period of five years between 1872 and 1877 during which it is admitted that the person in question resided in Boston five full years without receiving public aid, and paid the necessary number of taxes to give him a settlement under the retroactive clause of St. 1874, c. 274. That statute, after prescribing certain conditions of settlement, provides in § 3 that: "No existing settlement shall be changed by any provision of this act unless the entire residence and taxation herein required accrues after its passage; but any unsettled person shall be deemed to have gained a settlement upon the completion of the residence and taxation herein required, though the whole or a part of the same accrues before the passage of this act." Under this statute the person in question could gain no settlement, inasmuch as he already had a settlement derived from his father and acquired prior to 1860. His derivative settlement from his father prevented him from acquiring a settlement in his own right. Salem v. Ipswich, 10 Cush. 517, 520. St. 1898, c. 425, defeats all settlements not fully acquired subsequent to May 1, 1860, "except where the existence of such settlement prevented a subsequent acquisition of settlement in the same place." The settlement of the person in question acquired before 1860 prevented the subsequent acquisition by him of a settlement in the same place. The case, therefore, is within the exception of the statute, and the original settlement stands. This conclusion is confirmed by the case of Adams v. Ipswich, 116 Mass. 570, in which the court (Wells, J.) says: "If the older settlement prevented the subsequent acqusition of the more recent one, the former is preserved by the exception in the St. of 1870." The exception referred to in the opinion of the court is similar in its terms to that in the statute of 1898. The selectmen of a town have no right to license fish weirs in a harbor bordering on the town beyond the harbor line. of Harbor and Land Com Your letter of February 9 requires the opinion of the Attorney- To the Board General upon the following question, to wit: "Have the selectmen of Provincetown the right to license weirs in the harbor beyond the harbor line?" The right of controlling and regulating the sea and seashores is in the sovereign. Under the early laws of Massachusetts, a structure built into the tide water by the owner of the shore might be declared a nuisance if it interfered with the rights of the public reserved to them by the Colonial Ordinance of 1641-47. To avoid the necessity of determining the question of nuisance in each particular case, the Legislature from time to time established lines in certain harbors beyond which no wharf or pier might be built into the sea. St. 1837, c. 229, fixing the harbor line of the harbor of Boston, was an example of this class of legislation. The right of the Legislature to establish such lines was sustained in Commonwealth v. Alger, 7 Cush. 53, which held that a wharf could not be extended beyond the missioners. 1899 March 29. harbor line, even though it appeared that it did not obstruct navigation. St. 1866, c. 149, established a Board of Harbor Commissioners, and authorized it, among other things, to prescribe harbor lines, beyond which no wharf, pier or other structure could be extended into the harbor. The lines so prescribed, however, were subject to the approval of the Legislature. Under the authority of this statute, the Harbor Commissioners prescribed lines for the harbor of Provincetown, which were approved by the Legislature. St. 1867, c. 268. In 1869 an act was passed "to further protect the rights of the Commonwealth in tide waters." St. 1869, c. 432. Section 1 provides: "All authority or license that may be hereafter granted... by the Commonwealth, to any person or corporation to build any structure upon ground over which the tide ebbs and flows . . . whether it be private property or the property of the Commonwealth, shall be subject to the following conditions, whether they be expressed in the act or resolve granting the same or not, namely, viz.: such license or authority shall be revocable at any time, at the discretion of the legislature, and shall expire at the end of five years from its date. . . . All things done under such license or authority shall be subject to the determination and approval of the harbor commissioners. . . . If the legislature shall establish harbor lines within the outer line covered by such license or authority, then such license or authority shall be construed to be limited by and not to extend beyond such harbor line." The next general law regulating structures in tide waters was St. 1872, c. 236, entitled "An act to regulate the building of wharves and other structures in tide waters." Section 2 of this act expressly provided that no license for the construction of a wharf or other structure below high-water mark should have any effect beyond a harbor line, "except in relation to a structure authorized by law outside such line." The statutes above referred to, which were re-enacted in the Public Statutes, show clearly that the privilege of building in the sea beyond low-water mark is intended to be carefully guarded, and that in harbors no structure can be built beyond the harbor line, except by express authority of the Legislature. It remains to be considered whether the statute authorizing the construction of fish weirs is to be taken as an exception to this uniform course of legislation. St. 1856, c. 50, § 1, as reenacted in Pub. Sts., c. 91, § 70, provides that: "The selectmen of a town lying upon tide water may authorize in writing any person to construct fish weirs in said waters within the limits of such . . . town for a term not exceeding five years: provided, such weirs cause no obstruction to navigation, and do not encroach on the rights of other persons." It is plain that this is not intended as an exception to the general rule. It authorized selectmen to grant such licenses, but only in places where the building of structures in tide waters is not expressly forbidden by other provisions of law. To construe the statute otherwise would be to authorize the selectmen, at their discretion, to nullify the whole course of legislation intended to prevent the obstruction of the harbors of Massachusetts, and to give to the selectmen powers which are denied even to the Harbor Commissioners. I understand, however, that it is contended that St. 1881, c. 196, § 1 (Pub. Sts., c. 27, § 2), extending the boundary lines of towns bordering on the sea to the line of the Commonwealth, operates to give to towns jurisdiction over tide waters coextensive with such limits, or one marine league from shore. This act, however, was not intended to take away the general jurisdiction of the Commonwealth over its tide waters, nor to repeal or affect regulations established by the Commonwealth affecting them. It did not give towns any property rights whatever in the sea, nor enlarge their rights over the sea. Its only purpose was to extend the jurisdiction of towns for civil and criminal proceedings, so that such jurisdiction should be coextensive with that of the Commonwealth. Commonwealth v. Peters, 12 Met. 387. Before the statute in question was enacted, the boundaries of counties were already coextensive with the limits of the Commonwealth, and the statute which extended the boundaries of towns probably merely affirmed the common law giving towns the same coextensive jurisdiction. In New York it was early decided that a similar act extending the limits of a town over the tide waters did not give the town the right to regulate the digging of clams below low-water mark. Palmer v. Hicks, 6 Johns. 133. This statute cannot be taken to give towns any authority to construct fish weirs, where the Commonwealth, in the exercise of its jurisdiction over the waters, has forbidden the building of any structures whatever. I am of opinion, therefore, that your question should be answered in the negative. To the Adjutant-General. 1899 March 30. A soldier of the active militia, relieved from duty because he is unable to go into the United States service with his command, does not forfeit his standing in the active militia by enlisting in the provisional militia, and may be ordered by the Commander-in-Chief to rejoin his regular company on his return. The commander of an organization would not be warranted in discharging such a soldier because he enlisted in the provisional militia. Men of the provisional militia may be transferred to the active militia by the Commander-in-Chief with or without their application or the consent of the company commanders from and to whom transfer is desired. When, upon the declaration of war by the United States against Spain, many of the officers and privates of the Massachusetts Volunteer Militia offered their services to the United States, a question arose as to the continuance of their standing in the State militia. To settle this question, and to encourage enlistments by members of the militia into the United States service, a statute was enacted - St. 1898, c. 428-providing that members so enlisting should not lose their position and rank in the militia; but that the officers who so enlisted should be granted leave of absence, and the privates should be furloughed until thirty days after their discharge from the United States service. The quota of Massachusetts under the call of the President was filled by designating certain regiments and companies of the State militia, giving their members the opportunity of enter |