Home ALICE OLIVER & others [Note 1] vs. TOWN OF MATTAPOISETT & others [Note 2] (and a companion case [Note 3]).

17 Mass. App. Ct. 286

October 7, 1983 - December 21, 1983

Plymouth County

Present: GRANT, BROWN, & KASS, JJ.

This court suggested that a town's grant of an easement which had been executed, delivered, and recorded, could not be challenged by taxpayers in an action under G. L. c. 40, Section 53, but left undisturbed the trial judge's finding that inasmuch as the town had undertaken future obligations the plaintiffs had standing under G. L. c. 40, Section 53, to maintain the action. [287-288]

A simple majority vote of a town meeting was sufficient to authorize the selectmen to grant a nonexclusive easement in certain property of the town originally acquired by purchase from a railroad, followed by a confirmatory taking many years later for which the railroad received nothing, where restrictions in the easement specifically preserved the present and future uses which the town and others selected by it might wish to make. [288-290]

CIVIL ACTIONS commenced in the Superior Court Department on June 29 and July 6, 1981, respectively.

The cases were heard by O'Neill, J.

Carlton A. Lees (Roxane Delano with him) for Alice Oliver & others.

Reginald H. Howe (Gregory M. Kennan with him) for Daniel O. Mahoney & another, trustees.

Donald J. Fleming, Town Counsel, for the town of Mattapoisett & another, was present but did not argue.

Page 287

KASS, J. First, there is a problem of standing. The plaintiffs, who challenge an easement already granted by the town, allege no interest other than as taxpayers. Ten or more taxpayers of a town may, by an equitable action, ask a court to determine the lawfulness of expenditures or obligations about to be incurred. G. L. c. 40, Section 53.

So far as the easement in question is concerned, Mattapoisett's act is completed, and there is no future obligation. The easement here has been executed, delivered, and recorded. More has been done, therefore, than was the case with the easement in Lynch v. Cambridge, 330 Mass. 308 (1953), in which the deed had not yet been executed and delivered when ten taxpayers brought an action. What remained for Cambridge to do, however, was held not to be an obligation within the meaning of G. L. c. 40, Section 53, because "the only obligation assumed by the city will be the obligation to recognize that it has granted an easement which . . . will cause it no present or future loss or detriment . . . the city is not required to raise, expend, or borrow any money." Id. at 310-311. There is no general jurisdiction to entertain a suit by taxpayers to restrain municipalities from performing wrongful acts. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 259 (1925). It does not get the plaintiffs over these obstacles that they have cast their complaint as a request for a declaratory judgment. Gallo v. Division of Water Pollution Control, 374 Mass. 278, 287 (1978).

The Superior Court judge, however, after taking note of Lynch v. Cambridge, made a conclusory finding "that sufficient obligations were incurred by the [t]own to justify a decision on the merits." He may have been moved so to find because Mattapoisett, as part of its dealings with the trustees of the Goodspeed Island trusts, appeared to contemplate the construction of a cul-de-sac, although it is not clear that the town had committed itself on this score. Anticipated conduct of a municipality does not support a Section 53 action. Fuller v. Trustees of Deerfield Academy, supra, at 260. As we are to accept findings of fact unless clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), we leave

Page 288

the judge's somewhat enigmatic finding of future obligations undisturbed, as well as the conclusion which followed, that the plaintiffs had standing under G. L. c. 40, Section 53, to maintain their action.

On the merits, the question which the parties debate is whether a two-thirds vote of the inhabitants of the town was required to authorize the selectmen to grant the easement in question. The town voted by a simple majority (sixty-eight to fifty-eight). The easement granted permits the trustees of Goodspeed Island [Note 4] to use the easement area, which connects Goodspeed Island to the mainland, "for all purposes for which public ways in the [t]own may . . . be used, including . . . access by foot or vehicle to and from Depot Street . . . and for installing utilities." Certain significant -- in our view dispositive -- reservations qualified the grant of easement. (1) The easement is nonexclusive and is to be exercised in common with the town and others whom the town may permit to use the area. (2) The town can maintain and operate a sanitary sewer force main and other utilities located on the easement area, and can obstruct the easement in the course of maintaining and reconstructing those facilities. (3) The town can erect a chain, gate or other barrier to limit vehicular use of the easement. (4) The town can lay out all or any portion of the easement area as a public way. [Note 5]

Except as qualified by other statutes, a majority vote of a town is sufficient to grant an easement or convey any other interest in land. G. L. c. 40, Section 3. Harris v. Wayland, 16 Mass. App. Ct. 583, 585-586 (1983). One such qualifying statute is G. L. c. 40, Section 15, as amended through St. 1961, c. 117, which provides, in substance, that any land, easement or right of the city or town acquired by eminent domain may be conveyed or abandoned only by a two-thirds vote of

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the town, [Note 6] and then only following notification of the selectmen [Note 7] that the "land, easement or right, or part thereof, is no longer required for public purposes." G. L. c. 40, Section 15. See Muir v. Leominster, 2 Mass. App. Ct. 587, 593-596 (1974).

The land in which the easement is located was purchased for $4,000 in 1956 from the New York, New Haven and Hartford Railroad, which had used it as a roadbed. In 1973, the town made a confirmatory taking, perhaps to cleanse the title, and paid the railroad nothing. There was not here the exercise of coercive public power which causes the use of eminent domain to be a solemn event and brings G. L. c. 40, Section 15, into play. See Muir v. Leominster, supra at 595-596. Cf. Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 643-644 (1963), in which an internal transfer of land did not alter the character of the land in question as land originally acquired by purchase, rather than by gift.

Moreover, we are of opinion that no interest was conveyed within the meaning of Section 15. That statute contemplates a "considered determination" by public officials that an interest in land is no longer needed for a public purpose. Muir v. Leominster, 2 Mass. App. Ct. at 596. No such declaration was either made or called for. The primary function of the old railroad right of way, after the town had acquired it, was to serve as a road providing access to a public beach located beyond Goodspeed Island. That is, the former railroad way ran 750 feet from Depot Street in the town center to the island, then 600 feet across the island, and to the beach. The town has also installed a sewage pumping station and a force main in portions of the right of way. None of this use is in any way abandoned or disturbed. On the contrary, those uses and others the town may wish to make are specifically reserved in the text of the easement to the trustees of the Goodspeed Island trusts. Some sort of discontinuance of public use, the precondition to invocation of

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G. L. c. 40, Section 15, has not occurred, and the plaintiffs cannot seize on that statute to require a two-thirds vote.

Another statute which requires a two-thirds vote for land disposition is G. L. c. 40, Section 15A, as appearing in St. 1954, c. 105, which deals with transfer of care, custody, management, and control of land from one municipal department to another. No inter-agency transfer has occurred. Section 15A, in a fashion similar to the other statute discussed, requires a determination by the municipal board or officer who has charge of the land in question that the "land is no longer needed for [its former] purpose." G. L. c. 40, Section 15A. On the facts, there is no occasion in this case to apply the two-thirds requirement of Section 15A.

The judgment below declared that a majority vote of the town meeting on April 8, 1980, and the subsequent grant of the easement to the trustees of the Goodspeed Island trusts on October 28, 1980, were valid. That judgment was correct.

Judgments affirmed.


[Note 1] Nineteen other persons who identify themselves as taxpayers of Mattapoisett.

[Note 2] Neilson Abeel and Daniel O. Mahoney, trustees of Goodspeed Island Trust A and Goodspeed Island Trust B.

[Note 3] Alice Oliver vs. Planning Board of Mattapoisett & others.

[Note 4] There are Goodspeed Island Trusts A and B. They were created at the same time, were simultaneously recorded, and have the same trustees. Both are designated as grantees of the easement.

[Note 5] There are other conditions and reservations respecting the easement which we do not detail.

[Note 6] Or, in the case of a city, the city council. See also G. L. c. 39, Section 1.

[Note 7] Or, in the case of a city, the city council.