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 to fifteen foot wide strip of land (the “Disputed Area”) that abuts his property located at 64 Spring Road, Nahant, Massachusetts (“Plaintiff Property”), which Plaintiff claims by record title. 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 Mass. R. Civ. P. 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 his 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. By decision dated September 22, 2010 (“Land Court Decision 1”), this court found that (1) the 1899 Road Taking (hereinafter defined) complied with two of the four statutory requirements in 1899; (2) the pleadings did not allow for a finding with respect to the other two requirements, and (3) if the 1899 Road Taking was found to be valid, Plaintiff could not succeed in his adverse possession claim. A status conference was held on October 15, 2010 to determine how to proceed with the litigation. On January 13, 2011, Plaintiff filed his Amended Memorandum in Opposition to Frisoli’s Motion to Intervene. At the request of Plaintiff and the Town, Frisoli’s motion was not heard. On April 4, 2011, the Town filed its Motion for Summary Judgment with supporting memorandum and the Affidavit of Margaret R. Barile. On May 6, 2011, the Town filed its Amended Memorandum in Support of its Motion for Summary Judgment and Second Affidavit of Margaret R. Barile. On June 7, 2011, Plaintiff filed his Opposition to Defendant’s Motion for Summary Judgment and the Affidavit of Samuel A. Vitali, Esq. On August 12, 2011, Plaintiff filed Affidavits of Dennis McManus and Ralph Reid, both land surveyors. A summary judgment hearing was held on August 31, 2011, and the matter was taken under advisement.

Summary judgment is appropriate when there are no genuine issues of material fact and the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). I find 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. The Disputed Area is an unpaved portion of High Street approximately ten to fifteen feet wide that separates Plaintiff Property and the paved portion of High Street and runs the length of Plaintiff Property’s border with High Street. [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. The Disputed Area has never been paved.

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

4. 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]

5. The Board of Selectmen’s report on the Extension and the minutes from the 1899 Town Meeting were all recorded in a book entitled “Town of Nahant - Records of 1892” (the “Record Book”) which contains Town records from 1892 to 1911. Page 158 of the Record Book is dated March 18, 1899 and states that the 1899 Town Meeting began on March 18, 1899 at 11 A.M.; pages 158 to 161 state that several articles were considered and voted upon, including the Extension. Page 161 of the Record Book states that at 3:30 P.M. on March 18, 1899, voting polls for various Town elections were closed. Pages 162 and 163 of the Record Book list the results of elections for various Town positions stated in the present tense, e.g. “Chas. Cabot Johnson has 130.” Page 163 of the Record Book states that the meeting was adjourned until two weeks from March 18, 1899 for one more election.

6. The Annual Report for the Town of Nahant for the Year Ending February 28, 1899 (the “1899 Report”) contains a Selectmen’s Report that states:

Upon petition, the selectmen laid out a continuance of High street from Nahant road to Spring road, and their report will be submitted to the town. This street will be a public convenience. We do not think it advisable to grade the entire length this year, but, rather, that it will be better policy to divide the expense over two or more years. We recomend [sic] an appropriation of $800 for land damage and for the partial construction of the wall.

But a small amount will be needed for the extension of sewers this season. We think the sum of $400 will be sufficient. Nearly every estate with in the limits of our sewer system is now provided for.

7. An auditor’s report in the Annual Report for the Town of Nahant for the Year Ending February 28, 1900 (the “1900 Report”) states that $400.00 was appropriated for “Extension of Sewers” but that $469.83 was actually spent, including $15.00 to “H.C. Wilson, grades.” The 1900 Report also states that $800.00 was appropriated for “Extension of High Street” but that only $549.86 was spent, including $15.00 to “H.C. Wilson, grades.” A health officer’s report in the 1900 Report states that “[o]n High street 300 feet of 6-inch sewer was laid. Fifteen house connections were made.”

8. 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.

9. 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].”

10. 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.

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The Town argues that the 1899 Road Taking was valid, and, as a result, the Town owns the Disputed Area. Plaintiff argues that the 1899 Road Taking was not valid because the Town did not follow the proper procedures for an eminent domain taking. Plaintiff also argues that he acquired the Disputed Area by adverse possession, but in Land Court Decision 1 this court found that such a claim could not succeed if the 1899 Road Taking was found to be valid.

Validity of the 1899 Road Taking.

In Land Court Decision 1, this court found that the controlling statutory authority for the 1899 Road Taking is Chapter 49 of the Public Statutes of the Commonwealth (“PS 49”). 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 out 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 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 a 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.

In Land Court Decision 1, this court found that the Town had complied with two of the four requirements of PS 49, namely that the proposed way was presented to the town clerk at least seven days prior to a town meeting, and the proposed way was accepted at the town meeting. The parties dispute whether the Town recorded the taking of the Disputed Area in a book “kept for that purpose” within ten days of a town meeting, and whether the Town took possession of the way within two years. [Note 13], [Note 14]

The Town offers the Record Book and the dated entry contained within as evidence that the Town recorded the taking of the Disputed Area in a book “kept for that purpose” within ten days of the 1899 Town Meeting. [Note 15] Plaintiff argues that the Record Book does not satisfy PS 49 because the book in which the taking of the Disputed Area is recorded must be a book kept exclusively for the purpose of compiling and recording the alteration of ways.

Section 80 of PS 49 does not state that a book must be used exclusively for recording the alteration of ways, and the record contains no evidence to suggest such an interpretation. In fact, Plaintiff offers no evidence of any other book in which the 1899 Road Taking should have been recorded or that any other book exists. The phrase “for that purpose” suggests that the book may be one kept for the purpose of recording things, such as Town events and business. The March 18, 1899 entry on Pages 159 and 160 in the Record Book contains the Board of Selectmen’s report on the Extension made at the 1899 Town Meeting. [Note 16] Plaintiff does not argue that the entries made on March 18, 1899 were actually recorded more than ten days after March 18, 1899, and the record contains no evidence as to the recording dates. Therefore, I find that the Town recorded the 1899 Road Taking in a book kept for that purpose within ten days of the Town meeting at which the proposed way was accepted.

The Town offers the 1899 Report and the 1900 Report as evidence that the Town took possession of the Disputed Area and began laying out sewers and performing road work for the purpose of constructing the Extension. Plaintiff argues that the $469.83 spent for “Extension of Sewers” according to the 1900 Report does not prove that such work was performed on the Extension instead of an already existing portion of High Street. Plaintiff states that the 1900 Report’s recorded expenditure for $549.86 for “Extension of High Street” is “problematic,” and simply denies that the land designated by the Board of Selectmen at the 1899 Town Meeting includes the Disputed Area.

Even if Plaintiff is correct that the extension of sewers referred to in the 1899 Report and 1900 Report does not prove that such work was done on the Extension, the 1900 Report clearly shows that between February 28, 1899 and February 28, 1900, the Town spent $549.86 on the Extension. That $15.00 was spent on grading shows that work was actually performed on the Extension. Plaintiff offers no evidence to the contrary and, thus, the 1900 Report shows that the Town did begin working on the Extension within one year of the 1899 Town Meeting. Therefore, I find that the Town took possession of the Extension, including the Disputed Area, within two years from when the right to do so arose.

Plaintiff argues that even if the 1899 Road Taking is valid, there are genuine issues of material fact as to whether the 1899 Road Taking includes the Disputed Area. [Note 17] In Land Court Decision 1, however, this court already found that the 1899 Road Taking includes the Disputed Area; in a Post Hearing Order on January 21, 2011 this court ordered that the Town’s motion for summary judgment relate only to whether the 1899 Road Taking satisfied the remaining two requirements of PS 49. Therefore, I shall not address Plaintiff’s argument that the 1899 Road Taking does not include the Disputed Area.

As a result of the foregoing and the findings in Land Court Decision 1, I find that the 1899 Road Taking complied with all the requirements set forth in PS 49.

Adverse Possession.

In Land Court Decision 1, this court found that Plaintiff could not succeed in his claim for title by adverse possession over the Disputed Area if the 1899 Road Taking were valid.

Therefore, because I have found that the 1899 Road Taking was valid, I find that Plaintiff cannot succeed in his claim for title by adverse possession over the Disputed Area.

As a result of the foregoing, I ALLOW the Town’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice