15 Mass. App. Ct. 977

March 31, 1983

1. On this record, there was no basis for dismissing the action as to the defendant Lenmar Builders, Inc.,

Page 978

under Mass.R.Civ.P. 12(b)(1), (2) or (5), 365 Mass. 755 (1974). The errors in that respect appear to have resulted from indiscriminately copying into the judgment (with the express approval of the judge under Mass.R.Civ.P. 58[a][2], 365 Mass. 826 [1974]) every ground of dismissal under rule 12(b) that defense counsel had cited in his motion to dismiss. 2. That motion and the dismissal as to that defendant under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), display failures to comprehend the teachings of such cases as Nader v. Citron, 372 Mass. 96, 97-98, 104 (1977), and Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 87, 89 (1979). In particular, there was no way in which the judge could safely predict a failure of proof comparable to that illuminated in DiGirolamo v. Philadelphia Gun Club, 371 Pa. 40, 43 (1952). However, counsel would do well to consider the import of Smith v. New England Aircraft Co., 270 Mass. 511, 531 (1930), and the cases cited therein. 3. It is clear from the appendix, from the plaintiff's brief and from its oral argument that the planning board has done nothing in contravention of the statutory prohibition against "authoriz[ing] the taking of land" (G. L. c. 41, Section 81DD, inserted by St. 1953, c. 674, Section 7) and that only one of the matters complained of is even within the competence of a planning board (see G. L. c. 41, Section 81M). If the plaintiff does succeed in establishing a prescriptive right over Lenmar's land such as that asserted in the affidavits attached to the complaint, the planning board will have to reckon with that right. See Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970).

Judgments reversed.