SENIOR STAFF ATTORNEY BEN ROBBINS FILES AMICUS BRIEF FOR NEW ENGLAND LEGAL FOUNDATION IN CASE BEFORE MASSACHUSETTS SUPREME JUDICIAL COURT CONCERNING THE LIMITS OF THE COMMONWEALTH’S POWERS, AS THE HOLDER OF AN EASEMENT TAKEN BY EMINENT DOMAIN, OVER THE PLAINTIFF’S PRIVATE PROPERTY.
On September 12, 2022, Ben Robbins, Senior Staff Attorney for the New England Legal Foundation, filed an amicus brief for NELF in the Massachusetts Supreme Judicial Court (SJC) in Smiley First, LLC v. Massachusetts Department of Public Transportation, responding to the Court’s request for amicus briefing on the limits of the Commonwealth’s powers, as the holder of an easement created in an omnibus 1991 Order of Taking that arose from the Big Dig, over a portion of a parcel of land belonging to the plaintiff, Smiley First, LLC, located in the Seaport District. That 1991 document gave the Commonwealth the specific and narrow easement right to allow Consolidated Rail Corporation (Conrail) to relocate some of its displaced freight train tracks in South Boston onto the burdened portion of the plaintiff’s land (approximately 12,510 square feet out of the 18,088 square-foot parcel of land), along with burdened portions of land belonging to adjacent property owners. The relevant language of the 1991 Order of Taking provides:
In connection with the laying out of the State highway . . . it is necessary to relocate portions of railroad rights of way and land is hereby acquired for said relocation as follows:
Easements are hereby taken in parcels . . . for the relocation of the facilities of the Consolidated Rail Corporation . . .
Said easements (i) shall be for railroad purposes only, (ii) shall not be used for the storage of any hazardous materials . . . and (iii) shall be subject to the rights of the owner of the underlying fee as hereinafter provided . . . .
Conrail then exercised its rights, as the beneficiary to this 1991 easement, and laid some of its displaced freight tracks on the burdened portion of the plaintiff’s property, where the tracks remain to this day.
Notwithstanding the narrow purpose of this fully executed 1991 easement, MassDOT now argues, and the Superior Court so concluded, that the same easement gives the Commonwealth the right to use potentially all of Smiley First’s land within the burdened portion, for the new purpose of allowing the MBTA to build a test track, and a related building, for new subway passenger cars. Under this Court’s clear precedent, the resolution of this issue requires a careful examination of the text and context of the Commonwealth’s 1991 easement. Moreover, any doubts must be resolved in favor of the burdened property owner’s rights.
Under this analytical framework, it is clear that the Commonwealth would be effecting a new taking of the plaintiff’s private property if the MBTA pursued its intended use of the land, requiring additional just compensation to the plaintiff. Ironically, the Superior Court based its erroneous and overreaching interpretation of the 1991 easement on language that actually limited Conrail’s use of the easement “for railroad purposes only.” The lower court apparently disregarded the salient restricting adverb “only” that modifies this key phrase in the 1991 Order of Taking, as well as disregarding that phrase’s immediate context–i.e., a list of other restrictions on Conrail’s use of the property. As a result, the court misinterpreted this language as giving the Commonwealth the plenary power to use the entire burdened portion of the plaintiff’s land for any purpose that is remotely related to railroads of any kind.
To the contrary, this narrow easement language, “for railroad purposes only,” both on its face and within its immediate context, is clearly a term of limitation, and not an affirmative conferral of broad railroad-related powers to the Commonwealth as easement holder. The phrase serves simply to ensure that Conrail would not abuse its narrowly defined right to relocate its displaced freight tracks onto the burdened portion of the plaintiff’s land, i.e., by using the land for other, unrelated purposes. Moreover, the phrase’s immediate context makes it clear that the term is one of three carefully worded restrictions on Conrail’s limited use of the plaintiff’s burdened land.
After all, the Commonwealth took a mere easement over a portion of the plaintiff’s land, as opposed to taking title in fee simple over that burdened portion. By contrast, the Commonwealth did take title in fee simple over Conrail’s South Boston property in the same 1991 Order of Taking, in order to build a permanent two-lane road. Unlike outright ownership of land, an easement is “a nonpossessory interest in land [that] . . . generally authorizes limited uses of the burdened property for a particular purpose.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8-9 (2014) (emphasis added). See also Gen’l Hosp. Corp., 423 Mass. at 765 (“If the condemnor takes an easement, the owner retains title to the land in fee and has the right to make any use of it that does not interfere with the public use.”) (emphasis added). A taking in fee simple, along with the concomitant just compensation, would probably have given the Commonwealth the complete control over the burdened portion of the plaintiff’s land that the Commonwealth now labors to extract, for free, from the pinched language of the 1991 easement.
In effect, then, the Superior Court has misinterpreted the narrow easement language of the 1991 document as conferring upon the Commonwealth title in fee simple over the burdened portion of Smiley First’s land, but without ever having to pay the constitutionally mandated just compensation for such a broad property right. If the Commonwealth wishes to test MBTA subway cars on Smiley First’s property, it must pay the plaintiff for that privilege.
The Superior Court has also failed to apply centuries-old SJC precedent establishing that, once the easement holder has built the permitted use on the burdened portion of the property owner’s land (here, Conrail’s laying of the freight tracks on the plaintiff’s property in the early 90’s), the easement holder has no unilateral right to use any additional land on the burdened portion of the plaintiff’s property, even for the purpose of relocating the permitted use.[1] When combined with the Court’s takings precedent, this august line of cases establishes that the Commonwealth has no unilateral right even to relocate the freight tracks that remain properly on Smiley First’s property. Such a change would constitute a new taking requiring additional just compensation. A fortiori, the Commonwealth could not, without paying the plaintiff for the right, use any additional land on the plaintiff’s property while the tracks remain in place, especially when that additional use of land would not be authorized by the easement. In short, the Commonwealth exhausted its limited rights under the 1991 easement once Conrail, the third-party beneficiary to the easement, laid its freight tracks on the burdened portion of Smiley First’s property.
Finally, the Superior Court erred when it relied on Leroy v. Worcester St. Ry. Co., 287 Mass. 1 (1934), for the purported proposition that the Commonwealth is free to impose new railroad-related uses on additional land within the burdened portion of the plaintiff’s parcel. Leroy is entirely inapposite. In that case, the defendant easement holder was a railroad company that held a statutory right of way over the burdened portion of the plaintiff’s land. Unlike the Commonwealth’s narrow easement in this case, the railroad company’s statutory easement in LeRoy was expressly for the broad and dynamic purpose of providing public transportation, by “locomotive engine or other motive power.’” General Statutes 1859, c. 63, § 119) (emphasis added).
The Court in Leroy interpreted this broad statutory language as permitting the defendant railroad “to adopt modern inventions as a source of motive power,” i.e., to substitute new modes of public transportation as technology evolved over the decades, while using the same land within the burdened portion of the plaintiff’s parcel. Leroy, 287 Mass. at 11. The Court held that the railroad company adhered to the terms of the easement, because the company made consistent use of the same right of way to provide the latest means of public transportation. “The use of the right of way by the railroad company . . . was solely devoted to the transportation of the public whether by steam, electricity or vehicles propelled by other power [i.e., combustion-engine buses].” Id., 287 Mass. at 14. See also Chase v. Sutton Mfg. Co., 58 Cush. 152, 168 (Shaw, C.J.) (1849) (holder of easement taken by eminent domain may use burdened portion of land for “a public use of a like kind.”) (emphasis added). In short, the easement holder in LeRoy, unlike the Commonwealth in this case, remained faithful to the terms of a uniquely broad and dynamic easement to maintain “a special kind of highway . . . [with] the right to use on its location for [public] transportation purposes vehicles powered in any way developed by modern invention.” LeRoy, 287 Mass. at 14.
By contrast, no such easement rights exist in this case. Instead, the terms of the Commonwealth’s 1991 easement are narrow and static. That easement only allowed Conrail to relocate its displaced freight tracks onto the plaintiff’s land, “for railroad purposes only.”
Moreover, unlike the railroad company in LeRoy, the Commonwealth intends to use additional land within the burdened portion of Smiley First’s parcel, as opposed to using the same land within the burdened portion. Finally, the Commonwealth differs from the railroad company in Leroy because it intends to use the plaintiff’s additional land for a new purpose that is neither authorized by the language of the easement itself nor “a public use of a like kind” under Chase, quoted above. Freight trains are sufficiently unrelated to the MBTA’s subway cars to constitute a public use of a like kind.
In sum, the Commonwealth has no right under the 1991 easement to use any of Smiley First’s land for the purpose of testing new MBTA subway cars. Indeed, the Commonwealth has already exhausted its rights under the narrow text and context of that easement. If the Commonwealth wishes to pursue this new use of the plaintiff’s land, it must provide Smiley First with just compensation for this new taking of its private property.
[1] See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 90 n.4 (2004) “We previously have concluded that the dominant estate owner, that is, the easement holder, may not unilaterally relocate an easement.” . See also Naumkeag Steam Cotton Co. v. American Glue Co., 244 Mass. 506, 508 (1923) (“When[, as here,] the exact location of the easement is not precisely defined but has been exercised in a certain place, the grantee has not the right afterwards to change the location to some other part of the land.”) (emphasis added); Chandler v. Jamaica Pond Aqueduct Corp., 125 Mass. 544, 550 (1878) (“[The deed at issue] grants the right to lay a line of pipes in such place as may be found necessary, but it does not expressly or by implication grant a right to change the location of the pipes after they are once laid.”) (emphasis added); Jennison v. Walker, 11 Gray 423, 426 (1858) (“Where an easement in land is granted in general terms, . . . the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and defined course, . . . it cannot be changed at the pleasure of the grantee.”) (emphasis added).