RICHARD E. SWAN, SHARON D. SWAN, RUTH D. TURSKI, and PATRICIA CAHILL v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY

This case is before the court on the motion for summary judgment by the plaintiffs, Richard E. Swan, Sharon D. Swan, Ruth D. Turski, and Patricia Cahill, and on the cross motion for summary judgment by the defendant Massachusetts Bay Transportation Authority.

Richard and Sharon Swan filed their complaint in this action on September 19, 2005. Plaintiffs' complaint sought adjudication that they are the owners in fee simple absolute, free and clear of any claim of easement or ownership by the defendant MBTA, of a strip of land that abuts and runs through their land. This strip formerly was in use as a portion of a railroad right of way.

Defendant's answer pleaded as an affirmative defense that the Swans' complaint could not be adjudicated by the court, because they did not have standing to challenge the eminent domain taking by which the MBTA asserts its title, known as Order of Taking 482 ("1996 Taking"). Defendant relied on well-established decisional law in mounting this defense, see Commonwealth v. Quincy Memorial Co., 13 Mass. App. Ct. 1047 , 1047-48 (1982) (landowner who acquired title after a challenged eminent domain taking did not have "any standing to question the validity of the taking").

At the initial case management conference, the court engaged in colloquy with counsel for the parties concerning the possibility that the Swan plaintiffs might amend their complaint to add, as additional plaintiffs, two prior owners of the portions of the Swans’ property abutting the former railroad right of way, Ruth D. Turski and Patricia Cahill. These individuals were the record owners of what is now the Swans’ land at the time of the 1996 Taking. The plaintiffs followed this course of action and amended their complaint. The plaintiffs' amended complaint seeks a declaratory judgment pursuant to G. L. c. 231A and equitable relief under G. L. c. 185, § 1(k). Plaintiffs maintain that they are (or at relevant times were) the owners of the disputed strip of land, and that the 1996 Taking by the defendant MBTA was not carried out in accordance with statute, thus was invalid, and did not pass to the MBTA title to any of the plaintiffs' interest in the railroad right of way. Plaintiffs and defendants filed cross-motions for summary judgment, which counsel argued to the court.

After the summary judgment hearing, each party filed a supplemental memorandum regarding Devine v. Nantucket, 449 Mass. 499 , a 2007 case in which the Supreme Judicial Court addressed the question of the standing and legal rights of a landowner, who lacked notice of an eminent domain land taking, to litigate with respect to the taking.

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Based on the record assembled by the parties pursuant to Mass. R. Civ. P. 56 and submitted to the court, the following facts appear to be without dispute:

1. The Swans live at and own their home on land in Bridgewater near the disputed strip, and have since 1972.

2. The Swans own 44.79 acres of land that they obtained by deed from Cahill on March 31, 2000.

3. The Swans own 10.09 acres of land that they obtained by deed from Turski on August 23, 2001.

4. The land conveyed by Turski abuts the westerly side of a railroad right of way (“Right of Way” or “ROW”) which at the time of the conveyance no longer was in use for railroad purposes.

5. The land conveyed by Cahill abuts the easterly side of this railroad ROW; at the time of this conveyance, the deeded land no longer was in use for railroad purposes.

6. In or about 1846, the Old Colony Railroad recorded a location plan for the ROW.

7. The ROW was laid out by the filing by the Old Colony Railroad Company of a location plan in the office of the Plymouth County Commissioners.

8. The land on which the ROW was taken by this location was owned of record, at the time of the location, by Bela Hill.

9. Bela Hill pursued and obtained his remedy of damages for the location taking by proceedings before the Plymouth County Commissioners.

10. There is no deed from Bela Hill, or from any of Hill's successors in title, to the railroad conveying title to any part of the strip of railroad right of way that bisects the Swans' property.

11. The original location taking took an easement in the ROW that abuts the Swans' property.

12. The Swans own in fee record title to the land abutting both the easterly and westerly side of the railway location.

13. Mr. Swan saw railroad tracks being removed from this location in 1968.

14. No railroad trains have traveled over the railroad location since some time before 1968.

15. The Penn Central Corporation filed a Notice of Abandonment of the East Bridgewater Secondary Track, dated June 6, 1981, stating its intention to abandon the Track, effective July 6, 1981. The East Bridgewater Secondary Track includes the portion of the right of way that bisects the Swans' land.

16. The MBTA never has used the railroad ROW for any railroad purposes.

17. There are no markings or other openly visible signs that the ROW belongs to the MBTA or any other particular owner. What is left on the strip of land in dispute, and the adjoining stretches of the ROW, are trees, vegetation, and rotted railway ties.

18. Defendant's 30(b)(6) witness, Peter G. Wilson, testified that the defendant did nothing that he knew of to use the East Bridgewater Secondary Track for mass transportation facilities for public use, and that the defendant did not lay down any tracks or put up any fences. The disputed strip was not included as part of any plan for railroad purposes by the defendant.

19. Defendant's Director of Real Estate (Mark Boyle) testified that the MBTA voted to make Order of Taking 482 on June 27, 1996, and that the date of the recording of the Order of Taking, according to the registry notation on it, was August 20, 1996 (more than 30 days after the vote).

20. Order of Taking No. 482 was made under the power granted to the MBTA by G. L. c. 161A, § 3; G.L. chapter 79; and Chapter 33 of the Acts of 1991. The 1996 Taking was made without any award of compensation, and purports to take land from the Commonwealth of Massachusetts.

21. Defendant did not send notice of the 1996 Order of Taking to Cahill or Turski.

22. The MBTA did not send notice of the 1996 Order of Taking to anyone.

23. Defendant did not send notice of intent to take prior to the 1996 Order of Taking to Cahill, Turski, or anyone else, as required by G. L. c. 79, § 5C.

24. G. L. c. 79, § 6 requires a taking authority to award damages suffered by every person in his property at the time of the taking.

25. The 1996 Order of Taking did not award damages to anyone.

26. The MBTA has not awarded damages on account of any taking to Cahill, Turski, the Swans, or to anyone else.

27. G. L. c. 79, § 7C provides that immediately after a taking, notice shall be given to every person whose property has been taken which shall state in general terms the purpose and extent of the taking, the amount of damages awarded, and the time and place that the person may obtain such payment. The MBTA gave no such notice to Cahill, Turski, the Swans, or anyone else.

28. In a letter dated January 21, 2004, the MBTA's Chief of Engineering and Construction wrote a letter to Maeve Vallely-Bartlett of the Massachusetts Executive Office of Transportation and Construction, stating that the Order of Taking 482 was recorded more than thirty days after the taking was made, an apparent violation of the statutory requirement.

29. There was another Order of Taking (“2004 Taking”), # 615, made in February 2004, which purported to have the MBTA take the Commonwealth of Massachusetts' rights in various railroad lines. This taking was made without compensation.

30. Defendant did not send notice of the 2004 Taking to Cahill, Turski, or the Swans. Cahill had no knowledge of the 1996 Taking until in or about November 2005, shortly after this action commenced in this court, when Richard Swan advised her of it.

31. Turski had no knowledge of the 1996 taking until in or about November 2005, when Richard Swan advised her of it.

32. Turski never has been shown a copy of the revised amended complaint that was filed on her behalf.

33. Turski is not seeking any money damages from the MBTA in this litigation.

34. Cahill never has been shown a copy of revised amended complaint that was filed on her behalf.

35. Cahill is not seeking any money damages from the MBTA in this litigation.

36. Mark Boyle was hired by the MBTA in 2002, six years after the 1996 Taking.

37. Peter Wilson's responsibilities at the MBTA as an inspector include load counts, some surveying work, and inspection of various construction and maintenance projects.

38. Peter Wilson walked the ROW as part his duties at the MBTA sometime before 1997. He did not identify whether this walk was subsequent to the 1996 Taking, but he did say that he thought it was in the late summer or early fall of 1996.

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"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Id. at 644. In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 495 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. The party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1989).

The Land Court may, within its jurisdiction, make binding declarations of right, duty, status and other legal relations sought, in any case in which an actual controversy has arisen and is specifically set forth in the pleadings. G. L. c. 231A § 1. Such a declaration, when made, shall have the force and effect of a final judgment. Id. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons. Id. at § 3.

In support of the cross motions for summary judgment, the opposing parties present several arguments that seek either to challenge or uphold the legal validity of the defendant's takings. The plaintiffs contend that the 1996 Taking was invalid, due to integral substantive and procedural errors, and that the Swans own the subject land in fee simple absolute, or that, in the alternative, Turski and Cahill own the disputed land. In the defendant's cross motion for summary judgment, the MBTA argues that none of the plaintiffs have standing to litigate the validity of the 1996 Taking, and that, in any event, the taking was valid despite procedural errors. Whether or not the 1996 Taking is valid determines what interest the opposing parties have in the subject land. The issues to be determined are:

1. Do the Swans have standing to challenge the 1996 Taking?

2. Do the abutters of the ROW at the time of the 1996 taking (Turski and Cahill) have standing to seek declaratory judgment concerning the validity and effect of the disputed taking?

3. Where the abutters of the disputed strip of land at the time of the 1996 taking (Turski and Cahill) had no knowledge of the 1996 Taking of the ROW until, at the earliest, November 2005, after this case was filed, is their action timely?

4. Is the 1996 Taking invalid or ineffective to take the interest of the plaintiffs in the ROW due to procedural defects and failure to comply with statutory requirements?

The Swans do not have standing to challenge the 1996 Taking.

Before the court can reach the merits, and determine whether the 1996 Taking is valid, the court first must address the issue of standing. The issue of standing cannot be waived, because standing is integral to the court’s exercise of jurisdiction over this question. Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619 (1981). As title owners who acquired their record holding of the land affected by the 1996 Taking after it was made, the Swans lack standing, and are precluded from having the court grant them a judgment invalidating the title that passed to the MBTA by virtue of the 1996 Taking. While the decision in Devine greatly constricts the defense of lack of standing in cases where one who acquires record title lacked notice of an earlier taking, 449 Mass. at 513, n. 11, as discussed at greater length below, the Devine case concerned facts distinguishable from the case now before this court. In the instant case, the court concludes as matter of law on the uncontested facts that the Swans should have been on notice of the 1996 taking when they purchased the Turski parcel in 2001.

The parties are in agreement that the Swans did not own the ROW, nor the property abutting the ROW, at the time of the 1996 Taking. The parties also are in agreement that Turski and Cahill owned the land abutting the right of way before, and at the time of, the MBTA's 1996 Order of Taking. Certainly, prior to decision of the Supreme Judicial Court in Devine, the Swans could not have demonstrated the requisite standing to challenge the validity of the 1996 Taking, because firmly rooted decisional law long had held that only the owner at the time of the taking has standing to seek damages or to contest the validity of the taking. Howland v. Greenfield, 231 Mass. 147 , 148 (1918); Barnes v. Springfield, 268 Mass. 497 , 505-506 (1929); Commonwealth v. Quincy Memorial Co,, Inc., 13 Mass. App. Ct. 1047 , 1047-1048 (1982); New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374 (1992). This was a strict--some would say harsh--rule that left parties who held land that in the past had been the subject of an eminent domain taking which had been conducted contrary to statute--and which thus was invalid--without a meaningful opportunity to seek judicial relief. This long standing rule was put in place to discourage lawsuits against taking authorities, favoring certainty of the titles that emerge from takings, and preferring prompt completion of public projects over full vindication of private title and statutory rights. The right to mount a challenge was exclusively in the owner at the time of the disputed taking, and was cut off by a subsequent conveyance of the land affected. Devine, however, has greatly softened the harshness of this rule, given the conclusion of the court in Devine that a subsequent purchaser does not lack standing to challenge a taking, at least where the owner at the time of the taking did not have actual or constructive notice of the taking. 449 Mass. at 513, n. 11.

In light of the significant revision in the decisional law brought about by Devine, [Note 1] the Swans might be treated as having standing to contest the validity of the 1996 Taking, even though they were not the owners of the affected property at the time. Given the breadth of the remedy for the first time in Devine afforded to a landowner (who was not the owner at the time of the taking) and who did not have effective notice of an eminent domain taking, it would follow that the Swans, though not the owners at the time of the taking, should be given in this action an effective right to challenge the validity of the 1996 Taking. However, the Swans, unlike the plaintiff in Devine, despite their claim that they were bona fide purchasers without actual notice of the 1996 Taking at the time they took their title to the disputed strip and the abutting land, on the undisputed facts in the record before me did at that time have, as matter of law, constructive notice of the 1996 Taking. The relevant title documents are not in dispute, and lead to this conclusion.

The affidavit by the Swans' title examiner, Peter E. Tuttle, Esq., shows that the Penn Central Corporation filed an intent to abandon the disputed Right of Way on June 6, 1981 with the Town Clerk of East Bridgewater. Once the disputed Right of Way, which both parties agree was an easement in favor of the railroad, and not owned by it in fee simple, was abandoned, all interest in the property reverted back to the owners of the fee. Under the “derelict fee statute,” G. L. c. 183 § 58, the abutter on each side of the Right of Way owned the fee of that Right of Way to the centerline. Rowley v. Massachusetts Elec. Co., 438 Mass. 798 (2003); Tattan v. Kurlan, 32 Mass. App. Ct. 239 (1992) (see discussion of this statute below). In this case, it was Turski and Cahill (or their predecessors in interest, the statute being of retroactive application) who owned the fee and soil of the disputed strip while the railroad location easement was extant, and when the intent to abandon was issued in 1981.

When the Swans purchased the Turski parcel in August, 2001, the deed to them references a plan dated January 15, 2001. On this plan, the disputed Right of Way is shown as being owned by the Commonwealth of Massachusetts, even though the Right of Way ceased, by virtue of the filed abandonment, to exist in 1981, at which time ownership of all interest in the disputed strip would have resided, in fee, in the abutting owners free of the railroad rights formerly in existence. Title examination at the time of the Swans' purchase should have, under any reasonable view of the record title facts, paid attention to the state of title of the Right of Way, on which the conveyed land bounded, and by which it was described with reference to the recently prepared January 2001 plan. It was incumbent upon the buyers to take note of the referenced plan’s attribution of ownership of the disputed Right of Way to the Commonwealth, and to seek out the relevant recorded instruments bearing on the identity of the true owner of the strip. This strip was land abutting the parcel Turski was granting to the Swans, and the record sufficiently shows that determination of the title to this abutting strip was an integral part of the steps prudent conveyancing practice would require in such a transaction. Any such search, if diligent in the least, would have found the recorded 1996 Order of Taking. It was the obvious source, in the Registry of Deeds, of the Commonwealth’s claim of title to the former railroad track which bordered the parcel the Swans were acquiring.

The Swans cannot, in the face of the undisputed facts in the record on this score, fairly present themselves as bona fide purchasers of the interest in the disputed strip which would have passed to them by the Turski and Cahill deeds. The uncovering of the 1996 Order of Taking might well have led to further questions, now implicated in the case at bar, about the validity of the title purportedly acquired under this taking. But, no matter the strength of the merits of any attack on the validity of the 1996 Order of Taking, the record establishes that the Swans should have been aware of the Order, and that they had the facts necessary to challenge it, no later than the time of their purchase of the Turski land. In this vital respect, the Swans stand in a posture different from the claimant in Devine, who, on a very different set of facts, was held to be a bona fide purchaser without notice of the taking. 449 Mass. at 512. Devine involved a servitude imposed by eminent domain on land described as belonging to “owners unknown.” The trial court found that the taking authority had failed to search with reasonable diligence for the true owners of the affected land, the record title to which eventually devolved on the plaintiff, Devine. The court further found that the town’s efforts fell short of that which reasonably prudent title examination would have indicated, and that, as a result, the purported taking was “invisible to anyone conducting a reasonable title search.” Id. at 511. The record in the case at bar only admits of one reasonable inference, namely that the Swans were, or ought have been, led by the record title to, and aware of, the 1996 Order of Taking at the time of their 2001 purchase. Although the burden of “proving that a person was not a bona fide purchaser lies with the party making that claim...” Id. at 512, citing Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509-510 (2005) and Richardson v. Lee Realty Corp., 364 Mass. 632 , 634 (1974), in this case, the record, based on uncontested material facts, leads to that conclusion as matter of law. As of August 23, 2001, the Swans were responsible for knowing about the 1996 Order of Taking. The statute of limitation, as to whatever right they may have had to challenge that taking, began to run no later than then.

This complaint was not filed until September 19, 2005. By then, the three-year statute of limitations had run. G. L. c. 79, § 16. See Devine, 449 Mass. at 506. Under G. L. c. 79, § 18, an action challenging the validity of a taking must be brought within three years from the time that the right to damages vests. Cumberland Farms, Inc. v. Montague Economic Dev. & Indus. Corp., 38 Mass. App. Ct. 615 , 616 (1995). Under G.L. c. 79, § 3, the right to bring an action for damages vests "[u]pon the recording of an order of taking ... unless otherwise provided by law." Prior to Devine, the time limitations imposed by G.L. c. 79 were inflexible, and applied even to a claim that a taking was a nullity. Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 , 674-675, (1981). In Devine, the Town of Nantucket argued that because the order of taking was recorded on October 3, 1968, the time to bring any action for damages, or to challenge the validity of the taking, had expired in October, 1971. Devine added the opportunity for a challenge to a taking after the statutory limitations period had passed by on the calendar, the Supreme Judicial Court holding that the three-year statute of limitations was not to be applied when the taking authority recorded the order in a manner that left it “invisible” to reasonable title examination, and the affected landowner was a bona fide purchaser. While Devine makes clear that strict application of the statute of limitations is inappropriate to cut off the rights of a bona fide purchaser under those circumstances--a party who had no fair reason to know that there was any eminent domain proceeding about which to complain, see 449 Mass. at 512, n. 11--in the case now before me, the Swans should have known of the 1996 Taking Order not later than the time they bought the Turski parcel.

Turski and Cahill do not have standing to challenge the 1996 Taking.

Turski and Cahill, the owners of the properties alongside the ROW at the time of the challenged 1996 taking, lack standing to seek a declaratory judgment invalidating the taking. They possess no interest which will be affected by the outcome of this litigation, and thus no stake in it. They have no legal interest in the subject property, they do not seek money damages, they do not assert ownership of the disputed Right of Way, and they have not covenanted to the Swans the title conveyed to them.

For a court to entertain a petition for declaratory relief, (1) an actual controversy sufficient to withstand a motion to dismiss must appear on the pleadings (2) and even if there is a finding of an actual controversy, a plaintiff must demonstrate the requisite legal standing to secure its resolution. The purpose of both the actual controversy and the standing requirement is to ensure the effectuation of the statutory purpose of G. L. c. 231A which is to enable a court “to afford relief from...uncertainty and insecurity with respect to rights, duties, status and other legal relations." G. L. c. 231A, § 9. The declaration issued is intended to have an immediate impact on the rights of the parties. Id. A plaintiff with standing is one who has personal rights that will be directly affected in a significant way by the declaratory judgment–“a definite interest in the matters in contention in the sense that his rights will be significantly affected by a resolution of the contested point.” Bonan v. Boston, 398 Mass. 315 , 320 (1986). The declaration sought must be "intended to have an immediate impact on the rights of the parties...." United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958 , quoting Bello v. South Shore Hospital, 384 Mass. 770 , 778 (1981).

In support of the argument that Turski and Cahill have standing, these plaintiffs rely on the authority of cases such as Commonwealth v. Quincy Memorial Co. Inc., 13 Mass. App. Ct. 1047 (1992) for the proposition that the owner of property at the time of a taking has standing to challenge the validity of the taking. “A landowner can maintain an action challenging the validity of a taking of his property and at the same time either separately, or in the same complaint, seek an assessment of damages under G.L. c. 79 § 14. Raimondo v. Burlington, 366 Mass. 450 (1974).” Boyce v. Greater Lowell Reg’l Vocational Tech’l School Dist., 7 Mass. App. Ct. 639 , 640 n. 4, (1979). The plaintiffs contend that a party has standing under c. 231A when it can allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.

However true those propositions may be as a general matter, they do not give rise to a right in Turski and Cahill to proceed with this litigation. Although Turski and Cahill were the owners of the subject property in 1996, they are not the owners now. They have put forward in the summary judgment record no proof of personal rights that could at all be affected by a declaratory judgment as to the validity of the 1996 Taking. They thus lack standing and are precluded from challenging the validity of the taking. When Turski and Cahill conveyed their properties abutting the ROW to Swan by quitclaim deeds, making no actionable covenants as to the title, if any, they thus passed, their stake in the validity or not of the 1996 Taking came to an end. Turski and Cahill lack standing to seek a declaratory judgment invalidating the 1996 taking.

“Location” of railroad in nineteenth century established an easement only, and left the abutters with a fee interest.

Given my determination that none of the plaintiffs have standing to challenge the validity of the 1996 Taking, it is not necessary or proper to reach the legal merits of the attack they mount against the 1996 Taking. To permit a clear understanding of what is at stake in this litigation, it is useful to address, briefly, the issue whether or not the original railroad location taking in the 1800's took an easement or a fee simple. The Swans presented to the court for decision the question whether or not the original “location taking” in the 1800s resulted, after abandonment of the rights thus acquired, in the abutters owning the fee to the center of the right of way pursuant to G. L. c. 183 § 58, as construed in Rowley v. Massachusetts Elec. Co., 438 Mass. 798 (2003).

As the plaintiffs have presented this issue, there is an assumption that the original nineteenth century railroad taking was of an easement, and not a fee simple. The parties appear to be in agreement that the original location taking took an easement in the ROW that runs through and abuts what is now Swan's property. Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment, p. 8. The parties appear to be correct in their assumption that the "location taking" in the 1800's actually resulted in the taking of an easement, as opposed to a fee simple interest. This is a question of great importance, for if the Old Colony Railroad in 1846 took a fee simple interest from Bela Hill, then Hill would have retained no fee interest in the land that was taken. As a result, when the railroad professed its abandonment of its railroad rights in 1981, there would have been no fee subsisting in the Hill successors which would have belonged to them, now free of the railroad rights. A fee simple interest is not lost by mere abandonment. On the other hand, if the Old Colony Railroad in 1846 took only an easement, the fee interest to that land would have been retained by Bela Hill, and would have passed to Hill’s successors, presumably pursuant to the provisions of the derelict fee statute, G.L. C. 183, §58, if not pursuant to the actual terms of the relevant instruments of grant and devise. If the 1846 layout left the railroad with only an easement, when the railroad rights were abandoned in 1981, the interest in the ROW would have been held by the owners of the land abutting the ROW, each to the center of the right of way, pursuant to G. L. c. 183, §58. These fee ownership holdings in the disputed strip would have come to be held by Cahill and Turski at the time of the 1996 Order of Taking.

The taking in 1846 was of an easement and not of a fee simple. This is so because the taking was a “location taking.” In Rowley, supra, the Supreme Judicial Court determined that when a railroad obtained a right of way by means of a “location taking” by filing a location plan in the office of the County Commissioners, the railroad obtained an easement only, not a fee. In Rowley, when the railroad filed location plans, it automatically obtained easements over the land required to extend the route, Hazen v. Boston & Me. R.R., 2 Gray 574 , 580 (1854) (“filing of the location is the act of taking [an easement on] the land...”), but the fee interests in the land remained with the owners of the parcels affected by the taking. See Agostini v. North Adams Gas Light Co., 265 Mass. 70 , 72-73 (1928) (filing railway location plan created an easement; adjoining owners retained fee); Hall v. Boston & Me. R.R., 211 Mass. 174 , 176 (1912) (“That which a railroad obtains by filing a location is merely an easement . . . . The fee remains in the former owners”).

In 1846, the Old Colony Railroad recorded a location plan for the ROW. The ROW was laid out by the filing of a location plan in the office of the Plymouth County Commissioners by the Old Colony Railroad Company. Valuation Map #6 indicates that Old Colony R.R. Co. made some sort of taking from Bela Hill in 1846. On the map, in regards to the Hill taking, under “Kind of Instrument” it reads “Award” and then on the line below, “Location.” From this, it only can be inferred reasonably that Hill obtained a remedy of damages for the taking, and that this was a “location taking.” Indeed, Hill pursued and obtained his remedy of damages for the location taking before the Plymouth County Commissioners. There is no deed from Hill, or from any of Hill's successors in title, to the railroad conveying title to any part of the strip of railroad right of way that bisects what is now the Swans’ property. These facts are sufficient to establish that the taking in 1846 was a “location taking” and thus, only of an easement.

The parties are in agreement that when a railroad acquires land for a roadbed solely by “location” and not by deed of a fee, ownership in the land adjoining the “location” belongs to the fee owner or owners of the strip, and when the fee owners, as normally is the case, are the owners of the land abutting, transfer of the abutting land automatically passes to the new abutter owners the fee in the strip, each abutting owner owing in fee to the centerline of the roadbed. When the railroad ceases to operate over that portion of the roadbed and abandons its rights in it, the fee ownership of the abutters is in them free of any easement.

When the Penn Central Corporation, the then holder of the easement, filed its Notice of Abandonment of the East Bridgewater Secondary Track, dated June 6, 1981, stating its intention to abandon the track, effective July 6, 1981, the fee of the ROW became held by the ROW's abutting land owners free of the prior railroad easement. This is the interest held by Turski and Cahill when they took title to their land. And this is the interest which Turski and Cahill held at the time of the 1996 Order of Taking. However, given the determinations I have made about the inability of Turski and Cahill, or their grantees, the Swans, to challenge the 1996 Order of Taking, I am unable to decide that that taking is invalid or ineffective as to them.

The Defendant MBTA's motion for summary judgment is GRANTED. Plaintiffs’ motion is DENIED.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 6, 2009