NELF Applauds SJC Ruling on Limits of State’s Easement-Taking Powers

FOR IMMEDIATE RELEASE                                                                                                                           5-23-2023

CONTACT:    Burt Peretsky, <>, 781-696-5579

NELF Applauds SJC Ruling on Limits of State’s Easement-Taking Powers High Court’s Decision Echoes Similar Arguments Contained in New England Legal Foundation Amicus Brief Filed Last September


BOSTON – The Massachusetts Supreme Judicial Court (SJC) has backed a Boston Seaport District property-owner who challenged the Commonwealth’s overreach in a dispute involving the limits of the state’s easement-taking powers.  The high court’s decision in the case of Smiley First, LLC v. Massachusetts Department of Transportation, used similar points that were raised in a New England Legal Foundation (NELF) amicus curiae (friend-of-the-court) brief filed last September.


NELF’s brief, written by Senior Staff Attorney Ben Robbins and submitted to the SJC by him and NELF President Dan Winslow, argued that a 1991 Order of Taking that arose from the “Big Dig” gave the Commonwealth an easement over a portion of a parcel of land belonging to the plaintiff, Smiley First, LLC, for Conrail’s freight railroad purposes only. That narrow easement, the NELF brief maintained, did not allow the State to later take any of the plaintiff’s land for the new purpose of allowing the MBTA to build a test track and a related building for new MBTA subway passenger cars.


Attorney Robbins argued further in the brief, – and the SJC agreed in today’s (May 23) decision – that the Superior Court that heard the case made several errors of law, such as by misinterpreting the 1991 Order of Taking and key SJC precedents.


“’Give government an inch, and it’ll try to take a mile’ may be a truism about bureaucracies,” noted NELF President Dan Winslow, “but it’s certainly not true of easements affecting property rights.”


He continued, “NELF advocates for limited government control over private property rights, based on the rule of law, and this case is a great example of the need to limit governmental abuse of its powers of eminent domain.


“If the Commonwealth wants to use the plaintiff’s land to test new MBTA passenger cars,” added Robbins, “it must pay Smiley First for that right.”



About the New England Legal Foundation

The New England Legal Foundation (NELF – is the leading non-profit public interest law firm in the region dedicated to addressing policy and constitutional concerns related to economic freedom. NELF’s ongoing mission is to champion free enterprise, property rights, limited government based on rule of law, and inclusive economic growth. NELF challenges actions by governments and special interests which would unreasonably intrude on the economic freedoms of individuals and business enterprises in New England and the nation. We believe that free enterprise is a foundational value of a democratic society and the best opportunity for people to lift themselves to prosperity.




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