MISC 342767

February 20, 2009

Sands, J.


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Plaintiff filed her unverified Complaint on March 9, 2007, seeking declaratory judgment, pursuant to G. L. c. 231A, against Defendants Commonwealth of Massachusetts, acting by and through its Division of Fisheries and Wildlife (the "Commonwealth") and Stephen J. Weiner ("Weiner") relative to an easement by implication over Woods Road. [Note 1] The Commonwealth filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction on April 17, 2007, together with supporting memorandum. [Note 2] On May 17, 2007, Plaintiff filed her Opposition to the Motion to Dismiss. The Commonwealth withdrew its Motion to Dismiss and filed its Answer to Plaintiff's First Amended Complaint on October 4, 2007.

The Commonwealth filed its Motion for Judgment on the Pleadings on November 9, 2007, together with supporting memorandum and Statement of Material Facts. On December 10, 2007, Plaintiff filed her Cross-Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, together with supporting memorandum and Statement of Additional Facts and Appendix. A hearing on the Commonwealth's Motion for Judgment on the Pleadings and Plaintiff's Cross-Motion for Judgment on the Pleadings was held on February 4, 2008, at which time such matter was taken under advisement. [Note 3]

The effect of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is "to challenge the legal sufficiency of the complaint." Bd. of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate "only when the text of the pleadings produces no dispute over material facts." Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant's pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id.

This court finds that the following facts are not in dispute:

1. Plaintiff owns a parcel of undeveloped land containing 22.97 acres in Dartmouth, MA. ("Plaintiff Property"). Plaintiff Property has no frontage on Division Road. Plaintiff purchased Plaintiff Property from Stanley Polchlopek by deed dated November 21, 1994 and recorded with the Bristol County Registry of Deeds, Southern District (the "Registry") at Book 3394, Page 42. Plaintiff Property is shown as Lot 6 on Dartmouth Assessor's Map 17 ("Map 17").

2. Weiner owns a parcel of registered land containing 7.2 acres and located at 490 Division Road, Dartmouth, MA ("Weiner Property"). The Weiner Property is shown as Lot 1 on Map 17.

3. The Commonwealth acquired ownership to a parcel of land on Division Road in Dartmouth, MA by an Order of Taking dated December 23, 1999, and recorded with the Registry in Book 4597, Page 317 (the "Commonwealth Property"). Plaintiff Property, the Weiner Property, and the Commonwealth Property all abut.

4. An unpaved way approximately nine feet in width ("Woods Road") runs from Division Road through the Commonwealth Property and the Weiner Property to Plaintiff Property.


The Commonwealth raises two issues in its Motion for Judgment on the Pleadings. First, it argues that the doctrine of sovereign immunity bars Plaintiff's claim for declaratory judgment. Second, it argues that Plaintiff has no standing to bring a claim of quiet title because Plaintiff's claim of easement rights is a claim of a non-possessory interest in land. Plaintiff argues that there is an exemption to the sovereign immunity doctrine for easements, and that she does have standing to bring an action to quiet title. I shall address both issues.

Sovereign immunity.

In Lopes v. Commonwealth, 442 Mass. 170 (2004), the Supreme Judicial Court ("SJC") articulated the doctrine of sovereign immunity: [Note 4]

Sovereign immunity bars a private action against a State in its own courts absent consent by the Legislature or abrogation of sovereignty by Congress acting under its Fourteenth Amendment powers. "Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." "When that consent is granted, [the Commonwealth] can be impleaded only in the manner and to the extent expressed in the statute."

Id. at 175-76 (internal citations omitted). In this action Plaintiff claims an easement by implication in a right-of-way over land owned by the Commonwealth. She claims that the Commonwealth consented to such action through G. L. c. 231A. G. L. c. 231A, § 1, states, in part:

The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings . . . .

G. L. c. 231A, § 8 states, in part:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or by-law or of a franchise, license, easement or other privilege granted by the commonwealth or a municipality thereof, the municipality, or the agency granting the privilege, as the case may be, shall be made a party and shall be entitled to be heard.

The Commonwealth relies on Executive Air Service, Inc. v. Div. of Fisheries and Game, 342 Mass. 356 (1961) for its argument that sovereign immunity bars Plaintiff's claim. In Executive Air, the SJC dismissed a case against the Commonwealth, stating that "[b]y enacting the declaratory judgment procedure the Commonwealth did not consent to become a defendant in [a suit involving] . . . the title of the Commonwealth to real estate." Id. at 358. The SJC reasoned that "[t]he Commonwealth is the real party in interest, and the case cannot proceed without it." Id. Plaintiff argues that Executive Air does not apply because the case at bar involves a dispute over an easement and not over the fee title of the Commonwealth to real estate; moreover, Plaintiff states that G. L. c. 231A, § 8 allows a party to sue the Commonwealth involving an easement granted by the Commonwealth. [Note 5] The Commonwealth, however, points out that the easement at issue in this case was not granted by the Commonwealth, and thus there is no exception to the sovereign immunity standard. [Note 6]

In this matter, in order for Plaintiff to prevail, this court must be convinced that the Commonwealth has consented to such lawsuits, either expressly or implicitly. See Lopes, 442 Mass. at 175-76. Plaintiff's arguments are not persuasive for G. L. c. 231A does not indicate that the Commonwealth is subject to declaratory relief of this nature. As a result of the foregoing, I find that the Commonwealth is protected from suit by Plaintiff relative to her declaratory judgment action on the issue of easement by implication.


Chapter 240 of the General Laws of Massachusetts authorizes proceedings for the settlement of disputes relative to title to land. G. L. c. 240, § 6 provides this court with jurisdiction over equitable suits to quiet title. Section 6 states, in part:

It shall be unnecessary for the maintenance of such action that the defendants shall have a claim or the possibility of such a claim resting upon an instrument the cancellation or surrender of which would afford the relief desired; but it shall be sufficient that they claim or may claim by purchase, descent or otherwise, some right, title, interest or estate in the land which is the subject of the action and that their claim depends upon the construction of a written instrument or cannot be met by the plaintiffs without the production of evidence.

The Commonwealth argues that Plaintiff lacks standing to bring a claim to quiet title because she does not have a possessory interest in Woods Road, and cites Vitelli v. Ryder, 329 Mass. 119 (1952), and MacNeil Bros. Co. v. State Realty Co. of Boston, 333 Mass. 770 (1956), in this regard. Neither case stands for the proposition which the Commonwealth makes. Both Vitelli and MacNeil Bros. are cases involving a cloud on title and both cases cite First Baptist Church of Sharon v. Harper, 191 Mass. 196 , 209 (1906), where the SJC stated "that a bill to remove a cloud from the land affected cannot be maintained unless both actual possession and the legal title are united in the plaintiff." In the case at bar, which is a quiet title action and not a cloud action, Plaintiff claims an easement interest in Woods Road, which is located on land of Defendants. Such easement interest is clearly a claim of a "right, title, interest or estate in the land which is the subject of the action."

As a result of the foregoing, I find that Plaintiff has standing to bring her quiet title action relative to the status of the implied easement.

The Commonwealth's Motion for Judgment on the Pleadings is ALLOWED relative to their argument of sovereign immunity and DENIED relative to their argument of standing. [Note 7] The parties shall attend a status conference to be held on April 2, 2009, at 10 A.M. to discuss the next step in this litigation. Judgment shall enter upon disposition of this case.

Alexander H. Sands, III


Dated: February 20, 2009


[Note 1] On August 23, 2007, Plaintiff filed her First Amended Complaint, adding a count of quiet title pursuant to G. L. c. 240, § 6.

[Note 2] The basis of the Commonwealth's Motion to Dismiss was its sovereign immunity.

[Note 3] Because the scope of the February 4, 2008, hearing was limited to the parties' motions for judgment on the pleadings, this court makes no determination as to the merits of Plaintiff's Motion for Summary Judgment.

[Note 4] In Commonwealth v. ELM Medical Laboratories, Inc., 33 Mass. App. Ct. 71 (1992), the Appeals Court stated, "[t]here can be no doubt of the age and strength of the doctrine of sovereign immunity in this Commonwealth. In 1977, the Supreme Judicial Court observed, 'Massachusetts is one of only five remaining States which retain the common law [governmental] immunity at both the State and local levels.'" Id. at 77-78.

[Note 5] Plaintiff's argument continues in the alternative, claiming that, despite a lack of legislative waiver, this court should discard the doctrine of sovereign immunity. It is not this court's role to abrogate sovereign immunity without legislative consent, express or implied.

The SJC has described the modern role of sovereign immunity as "protect[ing] the public treasury against money judgments and public administration from interference by the courts at the behest of litigants except in instances and by procedures the Legislature has authorized." New Hampshire Ins. Guar. Assoc. v. Markem Corp., 424 Mass. 344 , 351 (1997). Where the Commonwealth has indicated that it is not opposed to the concept of litigating the easement issue in a registration matter, it implies that the easement action is not the type of case that the sovereign immunity doctrine was trying to protect the Commonwealth against.

[Note 6] The Commonwealth suggests that Plaintiff could bring a registration action to resolve the easement issue, since registration matters are exempt from protection under sovereign immunity. See G. L. c. 185, § 39 ("If the land . . . appears from the complaint or the proceedings that the commonwealth may have a claim adverse to that of the plaintiff, notice shall be given in the same manner to the attorney general."). Whereas G. L. c. 185, § 39 expressly includes the Commonwealth within the scope of general registration matters, G. L. c. 231A, § 8 includes the Commonwealth only to the extent the suit involves an "easement or other privilege granted by the commonwealth or a municipality thereof." In the case at bar, Plaintiff, in her pleadings, neither challenges an easement granted by the Commonwealth nor administrative actions of the Commonwealth in their Order of Taking, but the legal basis for an easement by implication. There was some suggestion, however, at oral argument that the Commonwealth may have made a grant of easement rights to Plaintiff. This issue will be revisited if this court finds that the Commonwealth did grant Plaintiff easement rights.

[Note 7] The purpose of this Judgment on the Pleadings was to address all jurisdictional issues, including sovereign immunity issues, as they relate to the case at bar. During status conferences on August 23, 2007, and January 17, 2008, this court discussed with all parties the sovereign immunity issues germane to Plaintiff's Complaint and Amended Complaint. However, the Commonwealth states in its brief that it defers an argument that the doctrine of sovereign immunity bars an action to quiet title as well as one for declaratory judgment. The Commonwealth has had multiple opportunities to argue the applicability of the doctrine in front of this court and each time has refrained from doing so. The Commonwealth withdrew its initial Motion to Dismiss (on sovereign immunity grounds) and failed to advance this argument in their brief in support of its motion for judgment on the pleadings and during the hearing on such motion. It would be against the interests of fairness and judicial economy if the Commonwealth now brandished this defense, particularly where the Commonwealth has agreed to allow the issue to be raised in a registration action.

In passing, this court notes Welch v. State of Maine, 853 A.2d 214 (2004), where the Maine Supreme Court held that a quiet title action was not subject to the doctrine of sovereign immunity. The Court relied, in part, on the determination that a quiet title action "implicates none of the modern day considerations that would justify the State's invocation of sovereign immunity." Id. at 216. The Court further noted that "[t]he State maintains the disputed land as a park. Maintaining a park, while certainly worthwhile, is more a proprietary activity than a governmental activity. Allowing the Welches to ask the courts to settle their dispute over a portion of the park land does not jeopardize any essential governmental function of the State." Id. at 216-17.