New England Legal Foundation (NELF) “Amicus” Brief in MA Supreme Judicial Court (SJC) Backs Boston Seaport District Property-Owner Appealing the Limits of the Commonwealth’s Easement-Taking Powers

BOSTON – The New England Legal Foundation (NELF – has filed an amicus curiae (friend-of-the-court) brief before the Massachusetts Supreme Judicial Court (SJC) backing a Boston Seaport District property-owner who is challenging the Commonwealth’s overreach in a dispute involving the limits of the state’s easement-taking powers, under the narrow terms of a controlling legal document and clear SJC precedent.

In the case of Smiley First, LLC v. Massachusetts Department of Public Transportation, NELF’s brief, written by Senior Staff Attorney Ben Robbins and submitted by him and NELF President Dan Winslow to the SJC, argues 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 did not allow the State to 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.

In NELF’s brief, Attorney Robbins argues further 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, which have now led to the appeal.

“’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 has to pay Smiley First for that right.”

The Court will hear oral argument on November 4, and a decision is expected a few months after that date.


CONTACTBurt Peretsky, <>, 781-696-5579

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 issues of law and policy related to free enterprise. NELF’s ongoing mission is to champion individual economic liberties, property rights, good government based on rule of law, and inclusive economic growth. NELF challenges actions by governments and private litigants 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 fundamental to a democratic society and offers the most sustainable path to advance the American ideals of life, liberty, and the pursuit of happiness, including freedom from material want.


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