WILLIAM CRANMORE, as trustee of the AVENUE REALTY TRUST, and WILLIAM CRANMORE, individually v. CITY OF BOSTON and IAN BOWLES, in his official capacity as SECRETARY OF THE EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL

Introduction

At issue in this case is the ownership of a triangular parcel of land on Blue Hill Avenue in Boston (the “triangle”), and the rare situation of both parties with a potential claim to title denying ownership. The reason for their denial is not hard to discern. The triangle is contaminated and subject to site assessment, penalty and other orders from the Commonwealth’s Department of Environmental Protection (the “DEP”). [Note 1] There is also a large, unpaid, property tax bill.

Defendant City of Boston (“the city”) took the triangle in 1894 by eminent domain for the purpose of widening Blue Hill Avenue. At the time of the taking, the triangle contained land from two different lots, then separately owned. [Note 2] An owner of one of those lots later formally deeded the city his interest in the already-taken land. [Note 3] The city never used the triangle and, in 1931, recorded a “notice of discontinuance” covering the triangle and other lands at the registry of deeds. It has never deeded the triangle back to its former owners, [Note 4] and no such deed has ever been accepted by those owners or their successors — the plaintiffs being the latest in the chain. [Note 5]

The city contends that the plaintiffs’ predecessors reacquired title to the triangle as a result of the discontinuance or, alternatively, by adverse possession, [Note 6] and the plaintiff William Cranmore, as trustee of the Avenue Realty Trust, thus owns it today. The plaintiffs disagree, arguing that the notice of discontinuance was ineffective to reconvey title and that adverse possession never occurred because neither they nor their predecessors ever made a formal claim to ownership. The plaintiffs also argue that regardless of whether the triangle was reconveyed to the plaintiffs’ predecessors and regardless of whether adverse possession occurred, the plaintiffs do not own it since neither the deed by which Mr. Cranmore (individually) first acquired his interest (Nov. 8, 1988), nor his subsequent deed to the trust (Aug. 4, 1989) included any part of the triangle, leaving ownership with someone else. Both the plaintiffs and the city have moved for summary judgment on these issues.

The defendant DEP (a party to this action by and through the Secretary of the Executive Office of Energy and Environmental Affairs) takes no position on the record title or adverse possession disputes, contending that the actual ownership of the triangle does not affect the validity of the DEP’s administrative consent and penalty order against the trust. That order reflects an agreement by the trust, “for purposes of the issuance or enforcement of [the] Consent Order,” that it (the trust) (1) did not contest that it was “a current owner and/or operator of the property located at 879 Blue Hill Avenue . . . at or from which there is or has been a release and/or threat of release of oil and/or hazardous material pursuant to M.G. L. c. 21E;” (2) would conduct and submit “a Phase I Initial Site Investigation Report and a Tier Classification Submittal”; (3) would pay a $30,000 civil administrative penalty ($22,500 of which is paid if the trust violates the order or DEP regulations), plus $1,000 per day if it violated any provision of the consent order or further violated DEP regulations; and (4) waived all rights to judicial review of the issuance and terms of the consent order. Administrative Consent Order with Penalty and Notice of Noncompliance at 2, 3-5 (Dec. 20, 2006) (the “Consent Order”). The DEP contends that, having made this agreement, the trust must fulfill these obligations whether it owns the triangle or not. More basically, however, the DEP argues that this court has no jurisdiction over the merits of the plaintiffs’ claims against the DEP (in essence, a request that this court enjoin the DEP from enforcing the consent order if the court finds that the plaintiffs have no ownership interest in the triangle) because those claims arise under G.L. c. 21E and such claims are solely for the superior court. The DEP has thus moved to have the claims against it dismissed from the case.

As more fully explained below, I DENY the city’s motion for summary judgment and ALLOW the plaintiffs’. The city’s notice of discontinuance was ineffective to reconvey title to the triangle or any part thereof, and the plaintiffs have not acquired title to that land by adverse possession. Finally, I ALLOW the DEP’s motion to dismiss the claims against it for lack of this court’s subject matter jurisdiction. G.L. c. 21E issues, particularly as they involve the enforcement of DEP orders, are within the exclusive jurisdiction of the superior court. G.L. c. 21E, § 11.

The Summary Judgment Standard

Summary judgment is appropriate when, after reviewing the record taken as a whole, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). In assessing the appropriateness of summary judgment, the court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Attorney Gen. v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). It only determines “whether a genuine issue of material fact exists.” Id. (citation omitted). All facts genuinely in dispute, and all reasonable inferences from both disputed and undisputed facts, must be taken in the light most favorable to the non-moving party. Id. at 371. The facts set forth below are either undisputed or, if disputed, stated most favorably to the party opposing summary judgment on the issues related to those facts.

Facts

The city took the fee interest in the triangle by eminent domain by order dated November 5, 1894, duly recorded at the registry of deeds, pursuant to the authority granted by Chapter 323 of the Acts of 1891. City of Boston Bd. of Street Comm’rs, Order re Blue Hill Avenue (Nov. 5, 1894) (the “Taking Order”); Plaintiffs’ Statement of Undisputed Facts at 3, ¶ 10 (a) (Jan. 10, 2008) (“Lot 1 and Lot 2 were reduced in size in 1894 when the city took land along Blue Hill Avenue by eminent domain for the purpose of widening Blue Hill Avenue”) (admitted in Defendant City of Boston’s Response to Plaintiffs’ Statement of Undisputed Facts at 2, ¶ 10(a) (Feb. 11, 2008)). At the time of the taking, the triangle was part of two lots, one owned by William Thayer and the other either by Susan McKenney (who was named in the Taking Order) or her successor William McKenney. Each received $400 for the land taken from them. Taking Order. By deed dated January 3, 1895, William McKenney formally conveyed the city his interest in the previously taken land. [Note 7] Suffolk County Registry of Deeds, Book 2247, Page 557 (Jan. 3, 1895). Mr. Thayer later deeded his remaining land to Mr. McKenney (Nov. 15, 1897), [Note 8] making Mr. McKenney the owner of both lots from which the triangle had been carved, and they have remained in common ownership ever since. Plaintiffs’ Statement of Undisputed Facts at 3-4, ¶ 11 (the relevant portions of which were admitted in Defendant City of Boston’s Response to Plaintiffs’ Statement of Undisputed Facts at 2, ¶ 11). The deeds for conveyances subsequent to the taking, including those to the plaintiffs, describe the property being conveyed as 1,842 square feet less than the description of its size prior to the taking (24,603 square feet before; 22,761 square feet after). Id. at 4, ¶ 11(b)-(c) (the relevant portions of which were admitted in Defendant City of Boston’s Response to Plaintiffs’ Statement of Undisputed Facts at 2, ¶ 11(b)-(c)).

The triangle was part of a series of takings along Blue Hill Avenue, the purpose of which was to widen and relocate the road. The triangle itself was intended to be part of a traffic circle, which ultimately was never constructed on the plaintiffs’ side of the street. The triangle has never been used as a part of Blue Hill Avenue or any other public way. On January 28, 1931, the city’s Board of Street Commissioners voted to “discontinue” a portion of Blue Hill Avenue which included the triangle. City of Boston Bd. of Street Comm’rs, Order re: Blue Hill Avenue (Jan. 28, 1931 and approved by the mayor on Feb. 27, 1931) (the “discontinuance order”). A copy of the discontinuance order, along with the Mayor’s approval and a plan showing the area “discontinued,” was duly recorded at the registry of deeds. Suffolk County Registry of Deeds, Book 5245, Page 241 (Feb. 27, 1931). So far as the record shows, none of the money the city paid to take the triangle was ever returned to the city, nor does the record reflect that any other type of consideration was given for the discontinuance. The city has never deeded its interest in any part of the triangle to its former owners, to the plaintiffs, or to anyone else. It has, however, given such a deed to a neighboring property owner whose land similarly had been taken for street widening purposes, deeded to the city, never used for that purpose, and then “discontinued” by recorded notice. City Council Resolve and Order at 2 (passed May 23, 1932 and approved by the mayor on May 25, 1932) (authorizing the mayor “to execute and deliver to the said Canterbury Development Corporation [the owner from which the property originally had been taken] and its assigns, by an instrument in writing, satisfactory to the Law Department of the City of Boston, all the right, title and interest of the City of Boston in and to the following parcel of land”). The City Council resolution authorizing that deed referenced the discontinuance and stated that “by reason of such discontinuance the ownership of these discontinued parcels of which the City of Boston had deeds became the property of the City of Boston, free from any public easement.” Id. at 1 (emphasis added).

As previously noted, from the time of the taking to the present, the deeds in the plaintiffs’ chain of title recite an area of 1,842 square feet less than that described pre-taking (an area approximately the size of the triangle). There is evidence, however, that the plaintiffs’ predecessors, and perhaps the plaintiffs themselves, have used all or part of the triangle in connection with their businesses on the adjoining land. [Note 9] Continuing a practice that apparently dates back many years, the city includes the triangle in the plaintiff trust’s property tax bills. The record does not reveal whether the plaintiffs have ever paid those taxes. They are certainly in significant arrears today.

On September 29, 1988, petroleum contamination identified during an investigation of the triangle was reported to the DEP. For purposes of the Consent Order between the plaintiff trust and the DEP, the trust agreed not to contest that it was the triangle’s owner.

Analysis

The City’s Taking of the Triangle Was Not Rendered Null and Void When It Failed to Use the Triangle in the Widening of Blue Hill Avenue, Nor Was Title Returned to the Plaintiffs’ Predecessors by the Notice of Discontinuance

The city contends that its 1894 taking of the triangle was rendered null and void by its subsequent failure to use the land for street widening purposes, thus causing the land to revert to its former owners. I disagree. The statute under which the taking took place does not so state and the authorities cited by the city in support of that proposition do not so hold.

The taking occurred under the authority of Chapter 323 of the Acts of 1891 “and acts in amendment or addition thereto” which granted Boston’s Board of Street Commissioners (‘the board”) the power, with the approval of the mayor, to “pass any order for the construction [of ways]” and gave “any person injured in his property thereby . . . the same remedies as are now provided by law for persons so injured by the laying out of highways in said city.” Chapter 323 of the Acts of 1891, § 10. The board’s order estimated the damages to the two triangle property owners (Thayer and McKenney) as $400 apiece. Taking Order. Their triangle land was taken by the city in fee and, in addition, the McKenney portion of the triangle was later deeded to the city in fee. [Note 10] Plaintiffs’ Statement of Undisputed Facts at 3, ¶ 10(a)-(b) (admitted in Defendant City of Boston’s Response to Plaintiffs’ Statement of Undisputed Facts at 2, ¶ 10(a)-(b); Deed from William A. McKenney to the City of Boston (Jan. 3, 1895), recorded at the Suffolk County Registry of Deeds in Book 2247, Page 557. There is nothing in Chapter 323 of the Acts of 1891 that requires the return of land, once taken, to its former owner if the land is never used for highway purposes and certainly nothing that requires its return for no consideration. Moreover, the case law cited by the city in support of such a proposition in fact provides no support whatsoever. The key distinction between the cases cited by the city and the situation at issue in this action is the fact that, here, the city paid for and took the triangle, in fee, by eminent domain. [Note 11] None of the city’s cases hold that land taken in fee and paid for by a public authority automatically reverts to its former owners, cost free, if not used for the particular public purpose for which it originally was taken.

The city next argues the board’s notice of discontinuance “returned” the triangle to its former owners without the necessity of a deed. I find and rule that it did not. First, the notice does not say so. It simply references a particular highway plan, identifies the triangle area (among others), and states that “said portion of said highway [is] hereby discontinued.” Board of Street Commissioners Order re: Blue Hill Avenue (Jan. 28, 1931 and approved by the mayor on Feb. 27, 1931). In addition, in the notice of the discontinuance, the board made the finding that “no person sustains damages in his estate by … the discontinuance.” Notice of Land-Taking in West Roxbury, City Record at 145 (Jan. 31, 1931). Just because a particular highway improvement has been “discontinued” does not mean that the land will never be used for a different highway improvement, or never used for another public purpose. A discontinuance notice certainly does not imply, in and of itself, that the city is giving up its fee in the land, bought and paid for with public funds. [Note 12] The words “deed,” “convey,” “transfer,” “return,” “revert,” or their equivalents are nowhere to be found in the discontinuance order.

Second, in a contemporaneous transaction, the city itself did not consider its notice of a highway discontinuance to be sufficient to transfer title to the land’s former owners. As previously noted, in an order dated May 25, 1932, involving other land taken for the widening of Blue Hill Avenue and, as here, ultimately not used, the city council referenced the notice of discontinuance and stated “by reason of said discontinuance the ownership of those discontinued parcels of which the City of Boston had deeds became the property of the City of Boston, free from any public easement.” City Council Resolve and Order at 1 (emphasis added). The effect of the discontinuance thus was simply to free the land from the requirement of highway use. The “discontinued” area remained city land, available to be used for any other proper purpose. In order to transfer the land in that transaction, a city council vote, approved by the mayor and certified by the city clerk, was required. Id.

Third, as suggested by the transaction just described, it is not at all clear that the board, even with the mayor’s approval, had the power or authority to dispose of city-owned property, no matter how acquired or for what purpose. Certainly, in that transaction, the city council believed that its affirmative action was required, which suggests that the board did not have the authority to dispose of the property on its own.

Thus, on the undisputed facts, as a matter of law, summary judgment is granted dismissing the city’s claims that (a) its title to the triangle became “null and void” when it failed to use the land for highway purposes, causing it to revert to its prior owners, and (b) its notice of discontinuance sufficed to return the title.

The Plaintiffs Do Not Have Title to the Triangle by Adverse Possession Because neither They nor Their Predecessors Have Ever Claimed Title and, by Disclaiming Title in These Proceedings, Are Now Judicially Estopped from Doing So Based on Their Prior Activities

The city next argues that the plaintiffs, or at least the plaintiff trust, have title to the triangle by adverse possession. Publicly-owned land can be adversely possessed so long as it is not “held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose.” G.L. c. 260, § 31. To establish title by adverse possession to the land of another, the claimant must show an open, notorious, exclusive and non-permissive use of that land, adverse to its owner, that has been continuous or uninterrupted for a period of twenty years or more. G.L. c. 260, §§ 21, 22; Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992 , 993 (1984); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Duff v. Leary, 146 Mass. 533 , 540 (1888). The activities conducted by the plaintiffs and their predecessors on the triangle may very well support such a claim. [Note 13] But adverse possession cannot be forced on a party. A party must affirmatively claim such title, see Kendall v. Selvaggio, 413 Mass. 619 , 623 (1992) (“The defendants’ claim is limited not by [one of the defendant’s] belief that the property was his own but only by the intent with which they asserted a right of possession against all others.”); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959) (“It is well established in this Commonwealth that an adverse possessor, to gain title, must hold under a claim of right and with an intention to hold the same as owner, and to the exclusion, right or wrongfully, of every one else.”) (internal quotations and citations omitted), [Note 14] and neither the plaintiffs nor their predecessors have ever done so. Indeed, in this action, they expressly disclaim it. There are significant consequences to such a disclaimer. If the city brings a trespass claim against the plaintiffs, the plaintiffs are now barred by the doctrine of judicial estoppel from asserting adverse possession as a defense. See Gordon v. Lewitsky, 333 Mass. 379 , 381 (1955) (“A party who has successfully maintained a certain position at a trial cannot in a subsequent trial between the same parties be permitted to assume a position relative to the same subject that is directly contrary to that taken at the first trial.”). But that is their choice. Having never claimed title by adverse possession, and now affirmatively disclaiming it, they have no such title, and ownership remains with the record title holder — the city. The plaintiffs are therefore entitled to summary judgment on that claim.

The Plaintiffs’ Claims against the DEP Must Be Dismissed for Lack of This Court’s Subject Matter Jurisdiction

The plaintiffs seek to enjoin the DEP’s enforcement of the Consent Order on the grounds that they do not own the property it concerns. That order, however, operates independently of ownership. It states, The parties have agreed to enter into this Consent Order because they agree that it is in their own interests, and in the public interest, to proceed promptly with the actions called for herein rather than to expend additional time and resources litigating the matters set forth herein [the penalty and site assessment obligation]. Respondent [the trust] enters into this Consent Order without admitting or denying the facts or allegations set forth herein [e.g., “Respondent is a current owner and/or operator of the Property located at 879 Blue Hill Avenue.”]. However, Respondent agrees not to contest such facts and allegations for purposes of the issuance or enforcement of this Consent Order.

Consent Order at 2.

G.L. c. 21E issues, particularly as they involve the enforcement of DEP orders, are solely for the superior court. G.L. c. 21E, § 11. To the extent the plaintiffs seek to void the Consent Order or restrict its scope based on a theory of mistake (the mistaken assumption that the trust owned the triangle if, in fact, the consent order was based on that assumption and if, in fact, the trust does not own it), that issue is contract based and, because it does not involve “right, title or interest” in land, is outside this court’s jurisdiction. G.L. c. 185, § 1 (k). The plaintiffs’ claims against the DEP are thus dismissed from this action, in their entirety.

Conclusion

For the foregoing reasons, the city’s motion for summary judgment is DENIED and the plaintiffs’ motion for summary judgment is ALLOWED. The city’s taking was not null and void, its notice of discontinuance was ineffective to reconvey title to the land it had taken, and the plaintiffs do not have title by adverse possession. The city thus owns the triangle, in fee. The DEP’s motion to dismiss the claims against it is ALLOWED for lack of this court’s subject matter jurisdiction over those claims, without prejudice to the plaintiffs’ rights to bring those claims in a court with proper jurisdiction.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 15 August 2008