JOHN RYDER vs. TOWN OF NAHANT and THE NAHANT LAND COMPANY

Plaintiff John Ryder filed his Verified Complaint on February 18, 2009, seeking, pursuant to G. L. c. 240, § 6, to quiet title to an approximately ten-foot wide strip of land (the “Disputed Area”) which abuts his property located at 64 Spring Road, Nahant, Massachusetts (“Plaintiff Property”). Plaintiff also claims title to the Disputed Area by adverse possession. On April 9, 2009, Defendant Town of Nahant (the “Town”) filed its Motion for Judgment on the Pleadings Pursuant to M. Civ. R. 12(b)(6) For Failure to State a Claim Upon Which Relief Can Be Granted, together with supporting memorandum. [Note 1], [Note 2] Plaintiff filed his Opposition to such motion on April 27, 2009. A case management conference was held on April 30, 2009, at which time Leonard A. Frisoli (“Frisoli”) (an abutter) filed a Motion to Intervene. [Note 3] On March 18, 2010, the Town filed its Reply memorandum to the Motion for Judgment on the Pleadings, together with Affidavit of Harriet C. Steves. [Note 4] Plaintiff filed its Rebuttal memorandum on March 30, 2010. A hearing was held on the motion for Judgment on the Pleadings on March 31, 2010, and the matter was taken under advisement.

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 took title to Plaintiff Property by deed of Marie F. Scola, Executor and Beneficiary under the will of Grace E. Bessay, dated October 23, 2006, and recorded with Essex County South District Registry of Deeds (the “Registry”) in Book 26218, Page 514.

2. Plaintiff Property is located at the intersection of High Street and Spring Road. Plaintiff Property is shown as property of “Fuller” on “Plan of Land in Nahant, Mass.” dated March 30, 1948, and prepared by Joseph Selwyn (the “1948 Plan”). [Note 5] Plaintiff Property is also shown on an unrecorded plan dated November 14, 2006, and prepared by Landmark Engineering (the “2006 Plan”). [Note 6] The 2006 Plan shows Plaintiff Property as containing 8,234 square feet, and approximately 10-15 feet of High Street adjacent to Plaintiff Property (the Disputed Area) as unpaved. [Note 7] The 2006 Plan also shows a stone barn (the “Barn”) on Plaintiff Property, a corner of which (containing approximately 50 square feet) encroaches onto the Disputed Area.

3. The Disputed Area has never been paved.

4. The Land Company formerly owned a large tract of land located at the intersection of High Street and Spring Road in the Town.

5. At the Annual Town Meeting held March 18, 1899 (the “1899 Town Meeting”), the Town voted to accept the report of the Board of Selectmen on the laying out of the extension of High Street (the “Extension”) from Nahant Road to Spring Road (the “1899 Road Taking”). [Note 8] The report stated as follows:

We gave legal notice of our intension to view the premises and appointed a hearing upon the laying out of the road or way at the Hook & Ladder House in Nahant on the 28th day of November 1898. At the time appointed we went over the proposed route for the road and had all parties that presented themselves, and after full consideration adjudged that the public good required that said road or way be laid out. We therefore caused the route of the road to be surveyed and a plan therefore made which plan with the reports containing all the boundaries and measurements of said road or way we deposited with the town clerk on Feb. 28th 1898 [sic] . . The limits of this extension are 16.5' either side of this center line making a road 33' in width. 8.25' either side of this center line being the limits of the original range road belonging to the town. In this description reference is had to a plan prepared by H. C. Wilson, C.E. and entitled Proposed Extension of High Street, Nahant, Mass., from Nahant Road to Spring Road. H. C. Wilson. C. E. Scale 30'=1' Dec. 30, 1898. We have awarded to the several parties over whose land said road is located, as follows

To Nahant Land Co. one dollar

J. T. Wilson one dollar

Mrs. Minerva R. Johnson Est. $150.00

We have ordered that all the parties over whose land the road is located shall remove all their fences and other obstructions within the said limits of said road or way within 30 days of the acceptance by the Town of this report and said road or way with all of its boundaries and admeasurements as herein described when the same shall have been accepted by the Town of Nahant shall be and become forever afterwards a public highway. [Note 9]

The minutes from the 1899 Town Meeting state that “[o]n motion of E. J. Johnson it was voted to accept the report of the Selectmen on the laying out of the extension of High Street.” [Note 10]

6. By deed dated March 10, 1902, the Land Company conveyed property containing 16,256 square feet and located on High Street abutting Plaintiff Property to the north to Fred A. Wilson (the “Wilson Property”), recorded with the Registry at Book 1667, Page 266. This deed referenced a plan titled “Sketch showing Land in Range X Nahant Mass” dated March 10, 1902 and prepared by E. A. W. Hammatt (the “1902 Plan”). [Note 11] The 1902 Plan showed Plaintiff Property as part of a larger tract of land owned by the Land Company.

7. By document dated August 14, 1937, and recorded with the Registry at Book 3119, Page 318 (the “1937 Tax Taking”), the Town made a taking for unpaid real estate taxes of land owned by the Land Company and containing 34,126 square feet. [Note 12] This parcel (which included Plaintiff Property) appears to be the land shown on the 1902 Plan as owned by the Land Company. By document titled Notice of Final Disposition as to Tax Lien, dated March 9, 1940, and recorded with the Registry at Book 3212, Page 7, this court issued a decree “forever foreclosing and barring all rights of redemption under [the 1937 Tax Taking].”

8. By vote taken at the Annual Town Meeting in 1993, the Town voted as follows:

Upon motion, duly seconded, it was a unanimous vote in favor, in order to maintain private and public ways in a consistent manner and on a uniform basis, that the Town vote to declare that the Town has had the open and notorious use of the following streets (except as footnoted below) for a period of twenty (20) years or more; and, therefore, has acquired a prescriptive easement in these streets and that said streets shall be considered accepted public ways of the Town of Nahant in their present configurations: . . . High Street [and] High Street Extension.

*********************

The Town argues that the 1899 Road Taking was valid, and, as a result, the Town owns the Disputed Area, and that one cannot acquire adverse possession over a public road. Plaintiff argues that the 1899 Road Taking was not valid because the Town did not follow the proper procedures for an eminent domain taking. As a result, Plaintiff argues that he acquired the Disputed Area by adverse possession. I shall examine each of these issues in turn.

Before proceeding to the merits of the decision, however, this court must identify the controlling statute at the time of the 1899 Road Taking. Whereas Plaintiff cites to various sections within the Revised Statutes (“RS”) of the Commonwealth, the Town claims that Chapter 49 of the Public Statutes (“PS”) controls the 1899 Road Taking. The PS were enacted on November 19, 1881, effective February 1, 1882, while the RS were passed on November 4, 1835. As such, the controlling statutory authority, with respect to the 1899 Road Taking, is PS c. 49.

Validity of the 1899 Road Taking.

Section 71 of PS 49 stated:

Except as is hereinafter provided, no town way or private way laid out or altered by the selectmen or road commissioners shall be established until such laying out or alteration, with the boundaries and measurements of the way, is reported to the town, and accepted and allowed at some public meeting of the inhabitants regularly warned and notified therefore; nor unless such laying out or alteration, with the boundaries and measurements, is filed in the office of the town clerk seven days at least before such meeting.

Section 80 of PS 49 stated:

When a town way or private way is laid out or altered by the selectmen or road commissioners . . . they shall in their report or return thereof specify the manner in which such way, location, or alteration shall be completed, and shall transmit to the Clerk a description of the location and bounds thereof, which shall, within ten days, be recorded by him in a book of records kept for that purpose . . .

Section 88 of PS 49 stated:

The laying out or alteration of any way under the provisions of this chapter shall be void as against the owner of any land over which the same is located, unless possession is taken of such land, for the purpose of constructing such way, within two years from the time when the right to take such possession first accrues; but an entry for the purpose of constructing any part of the laying out or alterations shall be deemed a taking of possession of all the lands included in the laying our or alterations made upon the same petition.

Read together, Sections 71, 80, and 88 of PS 49 create the following four-part test that the Town must prove in order to show that the 1899 Road Taking was valid: (1) the proposed way’s layout (including its boundaries and measurements) must be reported to the town clerk at least seven days prior to town meeting; (2) the proposed way must be accepted at a town meeting; (3) if accepted, a description of such way must be reported to the town clerk, who shall record the way in a book of records “kept for that purpose” within ten days; and (4) the town must take possession of such way within two years.

The Town argues that it complied with all four of the previously mentioned requirements set forth in PS 49. Plaintiff claims that the Town failed to record the taking of the way at issue in a book “kept for that purpose” within ten days, and that the Town failed to take possession of the way within two years. [Note 13], [Note 14]

As an initial matter, the 1899 Town Meeting minutes are clear that the Town, with respect to Article 10, complied with PS 49’s requirement that a proposed way must be presented before the town clerk at least seven days prior to a town meeting, at which meeting the way was accepted. However, the pleadings before this court fail to indicate whether the 1899 Road Taking was recorded by the town clerk in a book of records within ten days. At oral argument, the attorney for the Town presented to this court the original of a book kept in the Town Clerk’s office which contained the votes of acceptances of all public roads in the Town from 1892 to 1911. However, the Town fails to address the ten-day requirement and copies of relevant pages from such book are not included in the pleadings before this court.

The pleadings before this court also do not indicate that the Town took possession of the way within two years for the purpose of construction. The Town’s argument that they complied with this requirement is two-fold. First, it suggests that the Selectmen’s site view on November 28, 1898, should be considered “taking possession.” However, this court is not persuaded by such argument as the Town Selectmen walked the proposed layout prior to such way being accepted at the 1899 Town Meeting. PS 49 is clear that towns have two years to take possession “from the time when the right to take first accrues,” and the Town had no rights in the portion of High Street at issue in the case at bar until the 1899 Road Taking in March 1899. The Town also claims that proof of its possession is found in the oak trees that were planted along High Street at intervals of fifty feet, and that portions of the way were actually constructed from the intersection of Spring Street to facilitate access to the Greenlawn Cemetery. However, such facts are not contained in the pleadings before this court and, thus, cannot be relied upon to support the Town’s position. [Note 15]

As a result of the foregoing, I find that the 1899 Road Taking complied with, in part, PS 49’s requirements that a proposed road layout must be (1) reported to the town clerk at least seven days prior to town meeting, and (2) accepted at a town meeting. However, I cannot rule as to the 1899 Road Taking’s ultimate validity because the pleadings before this court do not allow for a finding with respect to whether the Town Clerk recorded the 1899 Road Taking in a book of records within ten days or whether the Town took possession of the way in question within two years.

Adverse possession.

Plaintiff argues that even if the 1899 Road Taking is valid, a triable issue exists as to whether he has a valid claim for adverse possession. The essence of Plaintiff’s adverse possession argument is that the Town has failed to use the Disputed Area for a “public purpose,” and, thus, the Disputed Area is subject to a claim of adverse possession. In response, the Town states that the only way to discontinue a public way is by vote of declaration of a town pursuant to G. L. c. 82, § 32A. [Note 16] See Mahan v. Rockport, 287 Mass. 34 (1934). The Town also relies on G. L. c. 260, § 31, which states that

[n]o action for the recovery of land shall be commenced by or in behalf of the commonwealth, except within twenty years after its right or title thereto first accrued . . . provided, further, that this section shall not bar any action by or on behalf of the commonwealth, or any political subdivision thereof, for the recovery of land or interests in land held for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose.

The Town argues, and this court agrees, that this statute prohibits anyone from obtaining adverse possession against land held by the Town for public purposes, which a public way clearly is. See Sandwich v. Quirk, 409 Mass. 380 (1991). See also G. L. c. 41, § 81Q (referring to a “public way” as a public purpose in context of subdivision control rules and regulations). As such, I find that, if the 1899 Road Taking is ultimately found to be valid, Plaintiff cannot succeed in his claim for title by adverse possession over the Disputed Area.

As a result of the foregoing, and consistent with the above, I DENY IN PART (with respect to whether (1) the Town Clerk recorded the 1899 Road Taking in a book of records within ten days and (2) whether the Town took possession of the way in question within two years) and I ALLOW IN PART (with respect to its adverse possession argument) the Town’s Motion for Judgment on the Pleadings.

The parties shall attend a status conference on Friday, October 15, 2010, at 11:00 A.M. to discuss whether the remaining issues may be disposed of via a motion for summary judgment or if disputed material facts will require a trial.

Judgment shall enter upon the resolution of all issues.

Alexander H. Sands, III

Justice

Dated: September 22, 2010