ORIENT HEIGHTS YACHT CLUB, INC. vs. BRUCE CAMPBELL, PETER E. DONADIO, JOHN G. WOFFARD, MALCOLM E. GRAF and THOMAS G. BARLOW, as they are COMMISSIONERS OF PUBLIC WORKS, and MASSACHUSETTS PORT AUTHORITY

On December 30, 1974, the plaintiff filed a complaint in the Superior Court of Suffolk County (No. 3858) to determine the respective rights of certain parties in and to a parcel of registered land located at 61 Bayswater Street, East Boston (the locus) and to compel the Commissioners of the Department of Public Works (the Commissioners) to convey said land to the plaintiff pursuant to St. 1960, c. 763. The locus is more fully described in the complaint and is shown on a plan entitled “Subdivision Plan of Land, Boston, Mass. East Boston District,” dated May 11, 1974, by John F. Gilmore. On February 7, 1975, the defendant Massachusetts Port Authority (the Authority) filed a petition, later amended, in this court to cancel outstanding Transfer Certificate of Title No. 47164 in which the Commonwealth of Massachusetts (the Commonwealth) is named as the registered owner and requesting that a transfer certificate of title be issued in the name of the Authority as the owner of a certain parcel of registered land in East Boston, Suffolk County, which includes the locus. Upon motion of the defendant Authority, allowed on May 12, 1975, the plaintiff’s Superior Court Action No. 3858, was transferred to this court, and on May 19, 1975, by order of the court, it was consolidated for trial with the Authority's registration petition, Registration Case No. 15259-S. For purposes of clarity, the court has rendered a separate decision for each case.

In its complaint, the plaintiff alleges that, since on or about November 9, 1960 and for a considerable period of time prior thereto, it has occupied, and has continuously and uninterruptedly used the locus for a yacht club; that since at least November 9, 1960, legal title to the locus has been in the Commonwealth under Certificate of Title No. 47164 of the Suffolk Registry District; [Note 1] and that a special act of the Massachusetts General Court, St. 1960, c. 763, authorizes and directs the Department of Public Works (the D.P.W.) to sell and convey all right, title and interest of the Commonwealth in the locus to the plaintiff subject to the approval of the governor and council. The plaintiff further alleges that a subdivision plan delineating the locus has been prepared in accordance with Land Court Instructions and is shown upon a plan entitled “Subdivision Plan of Land, Boston., Massachusetts,” dated May 11, 1974; that a copy of said subdivision plan was submitted to, and approved by, the D.P.W. in June, 1974; that the Right of Way Bureau was directed to determine the appraisal value of the locus for the year 1960 and to prepare a deed conveying all of the right, title and interest of the Commonwealth in the locus to the plaintiff; and that since June 5, 1974 the plaintiff has called upon the defendant Commissioners to proceed with said conveyance but that they have failed to do so because of the adverse claim of the defendant Authority. Finally, the plaintiff contends that all of the real estate to which the defendant Authority has any right, title, claim or interest is specifically described by metes and bounds in its enabling act, G. L. c. 91 App. § 1.1(i), and that the locus is not included therein.

In its request for relief, the plaintiff prays that the court enter judgment declaring that legal title to the locus is presently in the Commonwealth and that the defendant Authority has no right, title or interest therein. The plaintiff also prays that the defendant Commissioners be ordered to convey the locus to the plaintiff in accordance with St. 1960, c. 763; and that the Authority be ordered to pay to the plaintiff the costs of suit including reasonable attorney's fees.

In their answer, the defendant Commissioners admit that St. 1960, c. 763 authorizes them to convey the locus to the plaintiff, that a plan was submitted to them and that the Right of Way Bureau was requested to make a certain appraisal. However, they deny the plaintiff's allegations that legal title to the locus has been in the Commonwealth since 1960; [Note 2] that since June 5, 1974 the plaintiff defendant Authority has any right, title, claim or interest is specifically described by metes and bounds in G. L. c.91 App. § 1.1(i).

The defendant Authority’s answer denies that since at least November 9, 1960 legal title to the locus has been in the Commonwealth and alleges that title to the locus vested in the Authority on February 17, 1959 pursuant to St. 1956, c. 465, § 5. The Authority admits that St. 1960, c. 763 authorized the D.P.W. to sell and convey to the plaintiff all right, title and interest of the Commonwealth in and to a certain parcel of registered land, but alleges that it is not possible from the description in the act to fix the boundaries of the subject parcel. The Authority further alleges that, in any event, the Commonwealth had, at the time, no right, title or interest in said parcel since title to the entire plot of which the parcel was a part was by law vested in the Authority. The Authority denies that a subdivision plan delineating the locus was prepared in accordance with Land Court Instructions and states that as owner of the locus it was entitled to notice, which it states it did not receive, of any proposed subdivision plan affecting the property.

In its amended and supplemental counterclaim, the Authority alleges that, since its incorporation in 1902, the plaintiff has continuously occupied a building situated on the locus; that as of December 20, 1945, and prior thereto, the plaintiff occupied the locus as a tenant of the Boston Port Development Company or its predecessors in interest; that on December 20, 1945 the Commonwealth, by an Order of Taking, acquired various parcels of land, including the locus; and that from that time until February 17, 1959 the plaintiff was a tenant at sufferance of the Commonwealth. The Authority contends that on February 17, 1959 it acquired, and has since retained, title to the locus by paying to the Treasurer and Receiver General the various sums specified in St. 1956, c. 456, § 5. The Authority further alleges that when the plaintiff sought to secure implementation of St. 1960, c. 763 it was advised that the Authority claimed to be the owner of the locus. Finally, the Authority contends that since February 17, 1959 the plaintiff has occupied the locus as a tenant at sufferance of the Authority without the payment of any rent.

The defendant Authority prays that the court determine the amount of rent and use and occupancy damages due it from the plaintiff and that the court enter judgment in said amount for the Authority, with interest and costs. [Note 3]

The plaintiff’s answer to the Authority’s amended and supplemental counterclaim admits that the plaintiff has occupied the locus since its incorporation in 1902 and that since February 17, 1959, it has paid no rent, but it denies that since that time it has occupied the locus as a tenant at sufferance of the Authority. It also denies that, as of December 20, 1945 and prior thereto, it occupied the locus as a tenant of Boston Port Development Company or its predecessors in interest; that the locus ever formed part of the, so-called “airport properties”; that the Authority is or ever was the owner of the locus; and that the plaintiff was advised that the Authority claimed such an ownership interest. The plaintiff further answers by stating that any cause of action raised by the counterclaim was not brought within the time allowed by the applicable statute of limitations, G. L. c. 260, § 2, and that the allegations contained in the counterclaim are insufficient to entitle the defendant Authority to any relief against the plaintiff.

On December 23, 1975, the Authority filed a request for admissions that (1) on February 17, 1959, the Authority paid to the Treasurer and Receiver General the sums specified in St. 1956, c. 465, § 5, and acquired title to, and succeeded to the control, operation and maintenance of, the airport properties defined in St. 1956, c. 465, § 1(b); (2) the plaintiff has never paid any real estate taxes on the locus; and that at least since February 17, 1959 the plaintiff has paid no rent for the locus.

The plaintiff admits that the Authority paid the sums specified in St. 1956, c. 465, § 5 to the Treasurer and Receiver General and that the Authority succeeded to the control, operation and maintenance of the “airport properties.” However, the plaintiff denies that the Authority acquired legal title to the airport properties defined in St. 1956, c. 465, § 1(b) and further denies any implication that the locus was acquired or leased by the Commonwealth in connection with the construction or the operation of Logan Airport or that the State Airport Management Board (the SAMB) was in charge of the locus. The plaintiff admits the allegations contained in request number 2 while the defendant Commissioners admit both requests.

Although their counsel participated fully at trial, neither the plaintiff nor the defendant Commissioners introduced any witnesses. The plaintiff rested its case after introducing six exhibits while the Commissioners rested after introducing two exhibits. The Commissioners supplemented their presentation by requesting the court to take judicial notice of a compendium of relevant Massachusetts statutes. All fifty-two exhibits introduced at trial are incorporated herein by reference for the purpose of any appeal.

On all the evidence, and by judicially noticing documents of record in this court in Registration Case No. 15259 which involved land of which the locus is a part, and by judicially noticing relevant legislation of the Commonwealth to which the court’s attention has been directed, the court finds the following facts. On August 23, 1901, the plaintiff was granted a permit to build a single wood frame structure on the locus at Bayswater Street, East Boston. The permit notes that the building would be constructed on the harbor side of Bayswater Street on the beach and riparian land of the Boston Land Co. which was to be leased to the Orient Heights Yacht Club. On October 3, 1901, the plaintiff obtained a license to drive piles in Boston Harbor for the support of its clubhouse. The license was revocable by the Board of Harbor and Land Commissioners, after notice and hearing, and was for a three year term unless extended thereafter by vote of the Board. There was a license fee of $10.00 and in default thereof the license would become void. There is no evidence that this license was renewed or that the license fee has been paid each year. However, the plaintiff has occupied this property continuously from 1902 to the present although it has never owned it.

By deed dated May 15, 1911 and recorded in Book 3541, Page 421 [Note 4] on May 18, 1911, the trustees of the Boston Land Company conveyed several parcels of land, one of which included the locus, to the East Boston Company subject to the "occupancy of the Orient Heights Yacht Club of lands and flats on south side of Bayswater Street.”

On November 21, 1911, the plaintiff entered into a lease agreement with the East Boston Company for “a certain portion of shore frontage and the parcel of flats pertaining thereto situated at Orient Heights.” The area to be leased is described by metes and bounds and is substantially the same area as that presently occupied by the plaintiff. The lease was for a one year term, “subject however to the condition that the said East Boston Company shall have the right to cancel this lease at any time prior to the expiration of said one year upon giving six months notice in writing to that effect to said Club.” The lease further provided that the plaintiff would have “the privilege of renewing this lease at the expiration of one year upon the same terms and agreements, and subject to the same conditions contained in this lease.” The lease would “stand renewed from year to year without further action, provided the same has not been cancelled by said Company, or notice sent to the said company by said club in writing at the expiration of anyone term.” The plaintiff agreed to pay the sum of one dollar ($1.00) annual rental and the taxes as assessed by the City of Boston for the use of said premises. The plaintiff also agreed to employ a janitor for the care of the clubhouse which the lease states was owned and erected by the plaintiff. There is no evidence that this lease was ever terminated by the plaintiff or cancelled by the East Boston Company or any of its successors in interest.

By deed dated November 2, 1928 and recorded on November 7, 1928 in Book 5080, Page 8, the East Boston Company conveyed to the East Boston Development Company certain land in East Boston, including the locus, subject to rights of present tenants. A confirmatory deed, dated and recorded on August 14, 1935 in Book 5551, Page 501, named as grantee the Boston Port Development Company (formerly East Boston Development Company) and those claiming title under said Boston Port Development Company in accordance with their respective interests. The confirmatory deed also stated that the conveyance was made subject to rights of present tenants.

On June 19, 1945, a decree of registration issued from this court covering three parcels of land and flats in East Boston as shown on a “Plan of Land in Boston (East) Whitman & Howard, Civil Engineers, August 1932,” No. 15259A (Sheets 1 and 2) (the registration plan). Original Certificate of Title No. 45616, describing these three lots by metes and bounds, was issued in the name of the Boston Port Development Company as the registered owner. The locus is included within the parcel of land shown on the plan and described in the certificate as lot 1. The decree makes no mention of any lease agreement with the plaintiff, nor does it refer to any use and occupancy of the locus by the plaintiff.

By Order of Taking dated December 20, 1945, and recorded beginning on Page 466 of Book 195 on December 28, 1945, the Commonwealth, acting through the D.P.W., purported to take in fee four parcels of land and flats, one of which included the locus, from the Boston Port Development Company pursuant to St. 1941, c. 695 and St. 1945, c. 383. The former act is entitled “An Act Authorizing The Turning-Over Of The Boston Airport, So Called, To the Commonwealth And Providing For The Improvement Thereof And Making Certain Changes In The Laws Relative To Airports.” It terminated outstanding leases of airport property between the Commonwealth and the City of Boston and transferred control of the then so-called “Boston Airport” from the City of Boston to the Commonwealth. The act authorized the D.P.W., inter alia, to take certain steps, including the acquisition of land by eminent domain or by purchase, to enlarge and improve the airport. In the latter act, entitled “An Act Directing The Department Of Public Works To Make Provision For The Continued Development Of The General Edward Lawrence Logan Airport At East Boston,” the D.P.W. was authorized and directed in § 1 to “further enlarge, extend, improve and develop the General Edward Lawrence Logan Airport.” In § 2, the D.P.W. was authorized “to acquire by purchase, deed, gift or otherwise, or to take by eminent domain under chapter seventy-nine of the General Laws, lands other than public lands, or rights therein, as may be needed for obtaining filling material for said airport and for its further improvement.”

The aforesaid Order of Taking follows the language of c. 383 in that it was “for the purpose of improving the General Edward Lawrence Logan Airport to acquire lands to obtain filling material for said Airport and for its further improvement.” The Order contains a meets and bounds description of the four parcels of land. The fourth parcel, parcel “D” is shown on a plan entitled “Plan Of Land Belonging To The Boston Port Development Co. Lying Between World War Memorial Park And Belle Isle Inlet East Boston Taken By The Commonwealth Of Massachusetts Acting By The Department Of Public Works Under Chapter 383, Acts Of 1945.” The plan is dated December, 1945, and is recorded in Book 6195, Page 466. Parcel D, as shown on this plan and containing approximately 8,350,000 square feet, covers substantially the same area as lot 1 shown on the 1932 registration plan, mentioned supra and thus includes the locus.

The D.P.W.’s Annual Report for the year ending June 30, 1946 indicates that payment of $700,000.00 for these four parcels of land, described as approximately 15,677,148 square feet lying northerly of World War Memorial Park and Neptune Road and extending along the northerly shore of East Boston toward Belle Isle Inlet, was made to the Boston Port & Development Company from the third “Airport Loan” (Exhibit No. 15).

The D.P.W. failed to follow the required procedures set forth in G. L. c. 79, § 4 for the taking of registered land by eminent domain, since the requisite information was never filed for registration and no memorandum of the taking was ever noted on the then outstanding certificate of title. However, the locus was later conveyed by deed from the Boston Port Development Company to the Commonwealth. The memoranda of encumbrances accompanying Original Certificate of Title No. 45616 shows that lot 1, which includes the locus, was conveyed to the Commonwealth by deed dated May 20, 1946 and registered on June 27, 1946. The original certificate was cancelled as to lot 1 and Transfer Certificate Of Title No. 47164 was issued in the name of the Commonwealth. The Commonwealth thus acquired lot 1, including the locus, by grant and not by the purported taking. With the exception of two subdivisions of said lot 1, lots 4 and 5, which were conveyed to Theresa DiSessa and the City of Boston respectively, Transfer Certificate of Title No. 47164 continues to show the Commonwealth as the owner of lot 1, the remaining portion of which includes the locus.

St. 1941, c. 695, which transferred control of the “Boston Airport, so called,” from the City of Boston to the Commonwealth, provided in § 14 that “[t]he commissioner of public works shall establish in the division of waterways a bureau of airport management. Said bureau shall .... maintain and operate all airports owned and maintained by the commonwealth.” The name of the "Boston Airport so-called” was changed by St. 1943, c. 528, an act entitled “An Act Providing For The Improvement, Enlargement, Extension, Development, Construction, Alteration And Operation Of The Commonwealth Airport - Boston, So Called, And Providing Further For Easements, Roads, Highways, Approaches And Means Of Access By Railroad Or Otherwise In Connection Therewith.” Section 8 of c. 528 provides: “Said airport shall be known and designated as the General Edward Lawrence Logan Airport, and a suitable tablet or marker bearing said designation shall be erected at said airport by the department.”

Pursuant to the above-mentioned St. 1941, c. 695, the D.P.W. was authorized to acquire by eminent domain, or by purchase, any land necessary to fulfill its responsibilities under the act, and it managed what had become known as Logan Airport until the effective date of St. 1948, c. 637, an act entitled “An Act Changing The Laws Relative To State-Owned Airports In Respect To Their Management, Operation And Maintenance And Otherwise.” That act created the SAMB, gave the SAMB general operational control over all state-owned airports and specifically transferred to it “all the rights, powers, duties and obligations of the state department of public works pertaining to the acquisition, construction, maintenance and operation of [Logan Airport].” The Commonwealth retained title to the state-owned airports, but they were placed under the operational control of the SAMB. In addition, § 6 of c. 637 mandated that “[a]ll maps, charts, plans, records and all other related documents and equipment” pertaining to the acquisition, construction, maintenance and operation of Logan Airport be transferred from the D.P.W. to the SAMB.

The Legislature further acknowledged the SAMB’s control of state-owned airport property in St. 1949, c. 431, an act entitled “An Act Further Providing For The Construction By The State Department Of Public Works Of Certain Recreation Areas In The East Boston District Of The City of Boston.” The act authorized the transfer from the City of Boston to the Commonwealth of certain land, including the World War Memorial Park and William Amerena Playground, if the commissioner of airport management, with the approval of the SAMB, certified that said land was necessary for the purposes of Logan Airport. Upon such certification, this land was to become “a part of the General Edward Lawrence Logan Airport and subject to all laws pertaining to said airport.” The City of Boston, on the other hand, was authorized by the act to acquire a substitute recreation area on airport land which the SAMB certified was no longer necessary-for airport purposes. St. 1949, c. 431 specifically provided that:

Said new recreation areas ... shall be constructed upon such lands now owned by the commonwealth and under the control of the state airport management board as the commissioner of airport management, with the approval of the state airport management board, shall have certified to the state department of public works are, to the extent of the estate designated in such certificate, not necessary for the purposes of the aforesaid airport. (Emphasis added).

One parcel of land which the SAMB certified as being under its control but no longer necessary for airport purposes lies just west of the locus. The Commonwealth had acquired this land, a subdivision of lot 1 as shown on the 1932 registration plan mentioned supra, by deed with the locus from the Boston Port Development Company in 1946. Although it had been acquired at the same time and for the same purpose as the locus, the SAMB certified that this land was no longer necessary for the purposes of Logan Airport. Transfer Certificate of Title No. 47164 indicates that this land, shown as lot 5 on a “Subdivision Plan Of Land in Boston (East) Massachusetts Department of Public Works, Division of Waterways, Robert B. MacKinnon, District Engineer, May-1954” No. 15259B (Sheet 1), had been transferred with other land by deed dated August 2, 1954 and registered on August 6, 1954 to the City of Boston, and that the certificate of title had been cancelled as to that lot.

During the years that the SAMB was in charge of what is now known as Logan Airport, its members clearly believed that the locus was under the SAMB’s control and that it was in fact part of said airport. This belief is reflected in the minutes of the SAMB meetings from 1949 to 1956, particularly those dealing with the work to be performed by the SAMB pursuant to St. 1949, c. 745, an act entitled “An Act Relative To The Continued Development Of The General Edward Lawrence Logan Airport At East Boston.” Section 1 of this act provides:

The commissioner of airport management is hereby authorized and directed to further enlarge, extend, improve and develop the General Edward Lawrence Logan Airport, including construction of buildings thereon for hangars, maintenance and repair shops and other necessary facilities, with the approval of the state airport management board; provided, however, that such enlargement, extension, improvement or development of the airport under the provisions of this section shall not permit the extension of the existing bounds toward the town of Winthrop or the mainland of the East Boston district of the city of Boston. [Note 5]

In § 1A of this act, the commissioner of airport management was specifically authorized and directed to:

. . . fill in the deep channel from Bayswater street, in the East Boston district of the city of Boston to Winthrop bridge; to clear the shore line from said Bayswater street to said Winthrop bridge; and to dig a channel not less than six feet deep a distance of about three hundred feet to Orient Heights Yacht Club, said channel having been filled in because of the pumping of fill for the expansion of said Airport.

The D.P.W., under the authority of the above act, granted the SAMB a license dated August 8, 1950 and recorded in Book 6629, Pages 357-358 on August 17, 1950 to “excavate, place sand fill and drive timber piles for guard rope at Bayswater Street at [SAMB’s] property at East Boston.” Section 3 of c. 745 authorized the issuance of Commonwealth bonds, to be designated on their face Logan Airport Improvement Loan of 1949, to meet the expenditures necessary in carrying out the provisions of the act.

The minutes of the SAMB’s meetings from 1949 to 1956 indicate the steps taken to fulfill this legislative mandate and describe the location of the work to be done as Orient Heights Yacht Club, Logan Airport or Bayswater Street, Logan Airport. The minutes of one such meeting held on December 9, 1954 contain the following entry:

The Commissioner presented recommendation that negotiations be started with representatives of Orient Heights Yacht Club to establish rental for that property, which is under the jurisdiction of the Board. In checking over status of various properties owned by Commonwealth and under Board jurisdiction, it was found that the Dept. of Public Works, under Chapter 383 of Acts of 1945, acquired from Boston Port Development Co. a certain parcel of land lying between World War Memorial Park and Belle Island Inlet. Building identified as “Orient Heights Yacht Club” is situated on said parcel of land. Matter has been discussed with Airport Engineer and he states that land and buildings referred to are definitely owned by Commonwealth and under jurisdiction of SAMB.

During 1954 and 1955, controversy over title to the locus continued with the plaintiff refusing to pay any rent for said locus and claiming that it had acquired title thereto by adverse possession. The minutes of the SAMB meeting held on April 26, 1955 indicate that on that date the SAMB Commissioner recommended that the SAMB request the Attorney General to determine who owned the locus. The recommendation was unanimously approved and the request forwarded to the Attorney General. The Attorney General's office declined to make such a determination and suggested that the matter be resolved by a petition for declaratory judgment or for land registration. After that time, the SAMB took no further steps to collect rent from the plaintiff.

At some point in time, the plaintiff relinquished its claim that it had acquired title by adverse possession to the locus, and it began to seek a conveyance of the locus from the Commonwealth, which was still shown on Transfer Certificate of Title No. 47164 as the owner thereof. The minutes of a January 14, 1959 meeting of the plaintiff reveal a discussion of the “land problem” which could be resolved by submission to the Legislature of a plan by which the plaintiff could purchase the locus. It was noted that “... time is of the essence and action will be taken immediately with the intent of something being done before the new Port Authority takes over.”

In 1960, the Legislature enacted St. 1960, c. 763, entitled “An Act Authorizing The Department Of Public Works To Sell And Convey A Certain Parcel Of Land In The City Of Boston To The Orient Heights Yacht Club.” This act provides as follows:

The department of public works in the name of and on behalf of the commonwealth is hereby authorized and directed to sell and convey to The Orient Heights Yacht Club, subject to the approval of the governor and council, all right, title and interest of the commonwealth in and to the following parcel of registered land in the city of Boston as shown on Certificate of Title No. 47164, issued by the Registry District of the Land Court of Suffolk county and in land court plan No. 15259A, being bounded and described as follows: - Beginning at a point in the southerly line of Thurston street at the northwesterly corner of the granted premises; thence running easterly three hundred and fifty (350) feet by said Thurston street and Bayswater street as shown on said plan; thence turning and running southerly two hundred (200) feet to a point; thence turning and running westerly three hundred and fifty (350) feet to a point; thence turning and running northerly two hundred (200) feet to the point of beginning. Containing seventy thousand (70,000) square feet, more or, less, according to said plan.

The deed conveying the right, title and interest of the commonwealth in and to the above-described parcel of land shall be approved as to form by the attorney general.

There has been no compliance with this special act of the Legislature. However, in 1973 the plaintiff received a tax bill from the City of Boston for an area of 70,000 square feet at 61 Bayswater Street, East Boston. The plaintiff then wrote the D.P.W. to arrange a conveyance in accordance with c. 763. The D.P.W.’s Right of Way Bureau responded by requesting a plan showing the area to be conveyed by metes and bounds. A plan entitled “Subdivision Plan of Land, Boston, Mass., East Boston District” dated May 11, 1974 and illustrating the locus was prepared in accordance with 1971 Land Court Instructions by John F. Gilmore. The minutes of the June 5, 1974 meeting of the D.P.W. Commissioners contain an entry stating that St. 1960, c. 763 had not been complied with earlier because of an ambiguity in the location of the beginning point of the parcel description. Since this ambiguity was resolved by the above plan, a recommendation was made at the June 5 meeting that the D.P.W. sell and convey the locus to the plaintiff, subject to the approval of the governor and council, at the price prevailing for such transactions in 1960. It was further recommended that the Right of Way Bureau determine the 1960 value of the locus, and that it prepare a deed conveying the Commonwealth’s right, title and interest in the locus to the plaintiff, said deed to be approved as to form by the Attorney General. These recommendations were all approved by vote of the D.P.W.

At trial the attorney for-the Commissioners stipulated orally that the Commissioners are prepared to make a conveyance of the locus to the plaintiff pursuant to St. 1960, c. 763 and subject to the approval of the governor and council.

The Authority, which had never attempted to collect rent for the locus from the plaintiff nor to exercise any other acts of dominion over the locus, first learned of the D.P.W.’s intention to give a deed of the locus to the plaintiff by a letter dated July 24, 1974 and directed to Edward King, then executive director of the Authority, from certain residents of Bayswater Street, East Boston, who were concerned about the plaintiff’s potential acquisition of title to the locus. By letter dated August 2, 1974 Edward King informed Commissioner Campbell of the D.P.W. that the Authority claimed title to the locus by virtue of its enabling act and that it would not agree to any action which would diminish or otherwise affect the Authority’s right or title in said locus.

In St. 1951, c. 799, an act entitled “An Act Establishing Airport Approach Zones for the General Edward Lawrence Logan Airport,” the Legislature established “airport approach zones” at Logan Airport and prohibited the extension of any “airport hazards” into said approach zones. An “airport approach zone” is defined in said act as “any air space defined and shown as such zone upon a map on file in the office of the state secretary on August first, nineteen hundred and fifty-one, entitled Map of Approach Zones, General Edward Lawrence Logan Airport, Boston, Mass.,” while an “airport hazard” is defined as “any structure or tree which extends into any airport approach zone.” Section 2 of the act states:

It is hereby declared to be the policy of the commonwealth that the existence of any airport hazard endangers the lives and property of users of the airport, and of occupants of land in its vicinity, and effects a reduction of the area available for the landing, taking-off and maneuvering of aircraft, thus tending to impair the utility of the airport and the public investment therein.

Map number 4642, which is dated July 16, 1951 and is on file in the Archives Division of the Office of the Secretary of the Commonwealth, shows that the locus lies just within the airport approach zone for airport runways 4L-22R and 4R-22L. The Massachusetts Aeronautics Commission was charged with the enforcement and regulation of the provisions of St. 1951, c. 799 and, in addition, was authorized to “take by eminent domain, or acquire by purchase or otherwise, any airport hazard or the land on which it stands, or both.” In an Opinion dated July 22, 1974, the Attorney General found that St. 1951, c. 799 had been repealed by implication upon the enactment of St. 1956, c. 465, and that at that time the Authority became responsible for the regulation of airport approach zones.

The Authority, a body corporate and politic, was created and placed in the D.P.W. by St. 1956, c. 465, § 2. While it is a public instrumentality and the exercise of its powers is deemed an essential governmental function, it is an entity separate and distinct from the Commonwealth and it is not “subject to the supervision or regulation of the department of public works or of any department, commission, board, bureau or agency of the commonwealth except to the extent and in the manner provided ...” It may hold and acquire property, sue and be sued, make contracts and issue bonds, all in its own name.

Section 5 of c. 465 provided that title to the “airport properties" would be “vested” in the Authority upon the date of the Authority's payment of certain sums of money, set forth therein, to the state treasurer. On that date, the SAMB would be dissolved and:

the possession of the airport properties shall be transferred to the Authority and there shall be vested in the Authority the control, operation and maintenance of the airport properties and all rents, tolls, charges and revenues pertaining thereto, provided, however, that the Authority shall assume all of the obligations and have the benefit of all of the rights of the commonwealth in and to all leases, contracts and agreements relating to the airport properties and existing on the date of the transfer.

On February 17, 1959, the Authority paid the requisite sums and acquired title, control and possession of the “airport properties” which are defined in St. 1956, c. 465, § 1(b) as:

. . . the General Edward Lawrence Logan International Airport, hereafter called the Logan Airport, and Laurence G. Hanscom Field, together with all buildings and other facilities and all equipment, appurtenances, property, rights, easements and interests acquired or leased by the commonwealth in connection with the construction or the operation thereof and in charge of the state airport management board. [Note 6]

The legislation contains no metes and bounds description of what is described therein as “airport properties.”

A transfer certificate of title was never issued to the Authority for any portion of the land, including the locus, shown on the 1932 registration plan. However, the locus is included within Logan Airport on two plans, the 1970 and 1973 General Location Plans of Logan Airport (Exhibit Nos. 40 and 42), which were prepared under the supervision and control of Robert Francis Fuller (Fuller), a registered land surveyor who, at the time of trial, had been employed as a survey supervisor by the Authority for the previous 14 years. In supervising the preparation of these plans, Fuller relied on two other plans of Logan Airport, admitted for the limited purpose of showing that they were guides for Fuller in the carrying out of his functions at Logan Airport, the August, 1956 Master Plan prepared by the Thompson-Lichtner Co., Inc. and the December, 1959 Master Plan by the J. E. Greiner Co. Fuller also relied on Land Court Plan No. 15259A. Counsel have stipulated that the plaintiff’s clubhouse is located on the southerly side of Bayswater Street and all of the airport plans indicate that, at the clubhouse, the northerly boundary of the airport is the southerly side of Bayswater Street.

A Civil Engineering Report, dated December, 1958, was prepared for the Authority by the J. E. Greiner Company. The map accompanying the report showed the locus as clearly within the airport boundaries and depicted in a shaded tone what was described thereon as “General Edward Lawrence Logan International Airport.” The locus was included in the shaded area. This map was released with a bond “prospectus” issued by the Authority dated February 1, 1959 in connection with the sale of revenue bonds in the amount of $71,750,000.00 to acquire funds, part of which were to be used to make payments to the Commonwealth on account of the “Airport Properties.”

The plaintiff’s facility consists of a two story wooden clubhouse, approximately 32 feet wide and 53 feet deep with a one story 12 foot wide addition, a 35 foot wide pier, set on piles, which extends back approximately 105 feet from the clubhouse and contains about 52 lockers, a black topped storage area for boats and an asphalt boat ramp. The facility occupies approximately 8,750 square feet of land above the mean high water mark, 22,450 square feet covered by water, 21,000 square feet of black top, and another filled area which, with the ramp, equals 7,800 square feet. The total building area is approximately 4,587.50 square feet with each floor of the original building containing 1,706.25 square feet, a 650 foot rear porch and a 525 foot cocktail room. Although the locus is in a modified general residence zone, it would not be suitable for a business, residence or any type of use other than a yacht club. The clubhouse, which was constructed on piles, some of which have been replaced with concrete, has been well maintained since its construction in 1902. The first floor contains a carpeted entrance hallway, men and women’s lavatories, a 30 foot by 35 foot sitting room, a cocktail lounge, bar and sun room. There is a carpeted stairway leading to the second floor which contains a small office, a lavatory and a large room with bandstand area.

In 1973, the City of Boston assessed the plaintiff for 70,000 square feet of land. The land was valued at $8,500.00 and the building at $14,000.00 for a total valuation of $22,500.00. The tax was $4,425.75. When the plaintiff applied for an abatement, the value was abated by $9,500.00 and the tax was abated by $1868.75.

Louis H. Donovan (Donovan), an expert witness called by the defendant Authority, estimated the fair rental value of the locus as a constant $3,000.00 per year, and the court so finds. Although he had been aware of the yacht club since at least 1968 and had been on its first floor in 1973, Donovan’s initial inspection of the entire premises took place after he was hired by the Authority on September 15, 1975. As a result of his inspection, Donovan determined that there had been no recent, substantial changes in the condition of the property which would affect its rental value. In any event, Donovan's valuation was based primarily on the size of the yacht club, the number of members it could accommodate and the dues it could generate, rather than on its physical condition. The membership has remained steady at 100 to 150 dues paying members with perhaps twenty or thirty members who pay no dues. At the time of trial, the annual dues were $15.00 with a $55.00 assessment made by the board of directors, the locker fee was $15.00 and boat storage was $2.00 per foot. Counsel stipulated that the area which Donovan valued was the area that was delineated on the plan, mentioned supra, prepared by the plaintiff in accordance with Land Court Instructions and entitled “Subdivision Plan Of Land, Boston, Massachusetts,” dated May 11, 1974.

William Daniel Manning (Manning), who at the time of trial, had been a member of the plaintiff for eleven years and a member of its board of directors for eight of those eleven years, disputed Donovan’s testimony that there had been no changes at the yacht club during the early 1970's. Manning testified, and the court finds, that in 1973 the outside porch was glassed in and the lower floor completely renovated with new paneling and suspended ceilings. In 1974 a new ladies’ room was added and the entire upper hall was redone. Manning, who did much of the upstairs work himself, estimated that the electrical fixtures cost $3,000.00, the carpeting $2,500.00, the vinyl wall siding $900.00 and the parquet floor about $200.00. The total cost of improvements made at the club in the early 1970’s was approximately $15,000.00, and the members paid for the work through assessments by the board of directors.

The court finds that, even if Donovan had been aware of these improvements, his appraisal of the rental value of the locus would have remained the same, since his appraisal was based on the plaintiff’s ability to accommodate dues paying members rather than on the physical condition of the plaintiff’s facility.

During Manning’s eight years in the late 1960’s and early 1970's as a member of the plaintiff's board of directors, the Authority did not, to his knowledge, assert any claim to the locus.

In Registration Case No. 15259-S decided this day, this court ruled that the locus in the instant case was included within St. 1956, c. 465, § 1b’s definition of “airport properties” and that, upon the Authority's payment of certain sums of money to the state treasurer on February 17, 1959, legal and equitable title to all “airport properties,” both registered and unregistered, and including the locus, vested in the Authority by operation of law and without further action by either the Commonwealth or the Authority. The court, therefore, rules that the Commonwealth has had no right, title or interest in said locus since February 17, 1959, and that it, therefore, had no interest in the locus to convey to the plaintiff by the enactment of St. 1960, c. 763.

In this case, the Authority has filed a counterclaim, later amended, seeking rent and use and occupancy damages for the locus from the plaintiff for the time period from January 1, 1974 to the date of the court’s judgment. The Authority’s claim for rent is based on its argument that, since February 17, 1959, the plaintiff has occupied the locus, without the payment of any rent, as a tenant at sufferance of the Authority. In particular, the Authority argues that, at some time prior to December 20, 1945, the plaintiff occupied the locus as a tenant of the Boston Port Development Company, or its predecessors in interest, that on December 20, 1945, the Commonwealth took the locus from the Boston Port Development Company by eminent domain, that by virtue of that taking the plaintiff became a tenant at sufferance of the Commonwealth, and that, upon the vesting of title to the locus in the Authority, the plaintiff became a tenant at sufferance of the Authority.

The court acknowledges that, if, in fact, the plaintiff were a tenant of the Boston Port Development Company, a valid taking of the locus by the Commonwealth from said Boston Port Development Company would have terminated that tenancy, and the plaintiff would thereupon have become a tenant at sufferance of the Commonwealth. Lowell Housing Authority v. Save-Mor Furniture Stores, Inc., 346 Mass. 426 , 429 (1963). However, the court has found that, in 1945 when the D.P.W., acting on behalf of the Commonwealth, purported to take certain land, including the locus, from the Boston Port Development Company, it failed to comply with the required procedures set forth in G. L. c. 79, § 4 for the taking of registered land by eminent domain because the requisite information was never filed for registration and no memorandum of the taking was ever noted on the then outstanding certificate of title. The court, therefore, rules that title to the locus did not vest in the Commonwealth pursuant to the December 20, 1945 Order of Taking. See L. L. Brown Paper Co. v. Department of Public Works, 330 Mass. 496 (1953). Rather, the Commonwealth acquired title to certain land, including the locus, from the Boston Port Development Company by deed dated May 20, 1946 and registered on June 27, 1946.

The termination of a tenancy by an eminent domain taking is not the only manner in which a tenancy at sufferance can be created. In general, any holding over by a lessee after the expiration of the term of a lease will result in a tenancy at sufferance unless a tenancy at will by agreement or implication can be shown. Ames v. Beal, 284 Mass. 56 (1933). The conveyance of premises occupied by a tenant at will terminates that tenancy by operation of law, and the tenant at will automatically becomes a tenant at sufferance. Bunton v. Richardson, 10 Allen 260 (1865). In addition, a conveyance can terminate certain leases, such as unrecorded or unregistered leases for more than seven years where the grantee has no actual knowledge of the lease. A lessee under such a lease, who continues to occupy the land after its conveyance, becomes a tenant at sufferance.

To sustain its claim for damages under G. L. c. 186, § 3, the Authority had the burden of proving that, since at least January 1, 1974, the plaintiff has occupied the locus as a tenant at sufferance of said Authority. The court rules that the Authority has failed to sustain this burden of proof.

In attempting to prove that the plaintiff had occupied the locus as a tenant of the Boston Port Development Company and its predecessors in interest, the Authority introduced into evidence a 1911 lease agreement between the plaintiff and the East Boston Company, the then owner of the locus, for the portion of shore frontage and the parcel of flats on which the plaintiff’s facility is located. Since it had introduced this lease into evidence, the Authority had the burden of proving that it was no longer in full force and effect, and that the plaintiff no longer occupied the locus under the terms of said lease. The Authority has failed to sustain this burden of proof. The lease in question was for a term of one year but would stand renewed from year to year without further action unless cancelled by the lessor, or any of its successors in interest, or terminated by the lessee. No evidence of any such cancellation by the East Boston Company or any of its successors in interest or termination by the plaintiff or by operation of law was ever introduced.

In 1928, the East Boston Company conveyed to the East Boston Development Company (later known as the Boston Port Development Company) certain land in East Boston, including the locus, subject to the rights of present tenants. The East Boston Development Company would have taken free and clear of the above-mentioned 1911 lease agreement if it were an unrecorded lease of seven years or more from the making thereof of which the East Boston Development Company had no actual knowledge. At the time of the conveyance to the East Boston Development Company the land was unregistered and the conveyance was, therefore, governed by the antecedent of G. L. c. 183, § 4 which provided that:

... a lease for more than seven years from the making thereof shall not be valid as against any person, except the ... lessor, his heirs and devisees and persons having actual notice of it, unless it ... is recorded in the registry of deeds for the county or district in which the land to which it relates is situated. [Note 7]

There was no evidence either that this lease was recorded or that the East Boston Development Company had actual notice of it. The important question before the court, therefore, is whether the lease was, in fact, one for more than seven years.

In Toupin v. Peabody, 162 Mass. 473 (1895), the Supreme Judicial Court carefully analyzed the antecedent of G. L. c. 183, § 4 and held that a lease for a term of five years, which contained a provision that the “lessee is to have the privilege of renewing this lease upon the same terms for the further term of five years,” was a lease for more than seven years from the making thereof. The court found that the legislative intent behind the relevant clause of c. 183, § 4 was that:

... a bona fide purchaser without actual notice may rely with certainty upon the fact that no instrument which does not appear of record, and of which he does not have actual notice, can give a tenant for years the right to any longer term than for seven years from the making of the instrument. Id. at 476 (emphasis added).

The court further stated that the important factor was “the term during which the land ... could be kept from [a purchaser’s] possession by the holder of an unrecorded lease ....” Id. at 477. The Legislature settled on seven years as the longest period during which a bona fide purchaser without actual notice could be kept from such possession “... whether the instrument demised directly a longer term, or provided for its indirect creation by an agreement for renewal at the lessee’s option.” (emphasis added). In 1975, the Court reiterated the holding of the Toupin case by stating in Snyder v. The Sperry and Hutchinson Co., 368 Mass. 433 (1975) that:

It is settled law that the seven-year period pertaining to leases includes any options to extend or renew the lease where the lessee has the sole power to determine whether the option is to be exercised. Id. at 2468 (citations omitted) (emphasis added).

The instant case is clearly distinguishable from those cases in which the lessee has the sole power to extend or renew a lease beyond the seven year period, since in this case the East Boston Company or any of its successors in interest could have cancelled the lease at any time merely by giving six months notice of such cancellation to the plaintiff. The harm to a purchaser which the Legislature sought to avoid is not present when both the lessor and the lessee have the right to terminate or cancel the lease upon six months notice since in such a case the longest period of time during which the purchaser could be kept out of possession without his consent would be six months. Therefore, “[w]here the term could exceed seven years, but is subject to termination by either party within that time, it need not be put on record.” D. Park, Conveyancing § 478, p. 531 (1968). The court rules that the 1911 lease agreement between the East Boston Company and the plaintiff was a lease for less than seven years within the meaning of G. L. c. 183, § 4. See Fanger v. Leeder, 327 Mass. 501 , 507 (1951); Crocker's Notes on Common Forms § 750 (7th ed. R. Swaim 1955); E. Schwartz, Lease Drafting in Massachusetts § 5.12, p. 122 (1961).

On June 19, 1945, a decree of registration issued from this court covering three parcels of land and flats in East Boston, one of which included the locus. Original Certificate of Title No. 45616, describing these three lots by metes and bounds, was issued in the name of the Boston Port Development Company as the registered owner. The decree makes no mention of any lease agreement with the plaintiff, nor does it refer to any use and occupancy of the locus by the plaintiff. Since the lease was one for less than seven years, however, there was no requirement that it be registered. G. L. c. 185, §§ 46, 71.

Since the lease was one for less than seven years, all subsequent purchasers of the locus, including the East Boston Development Company, later known as the Boston Port Development Company, in 1928, and the Commonwealth in 1946, would have taken title subject to it unless it had been terminated by the plaintiff or cancelled by the East Boston Company or any of its successors in interest. The Authority, having introduced the lease, had the burden of introducing evidence of its cancellation or termination in order to sustain its theory that the plaintiff was a tenant at sufferance. It failed to do so.

On February 17, 1959, title to all “airport properties,” including the locus, vested in the Authority. St. 1956, c. 465, § 5 specifically provided that, upon the vesting of such title in the Authority:

... the Authority shall assume all of the obligations and have the benefit of all of the rights of the Commonwealth in and to all leases, contracts and agreements relating to the airport properties and existing on the date of the transfer.

Since 1959, the Authority has the right to cancel or terminate the plaintiff’s lease, if still outstanding, by giving the plaintiff six months cancellation notice or by proceeding under G. L. c. 186, § 11 for nonpayment of rent. No proof of any such action taken by the Authority was introduced into evidence.

In summary, the Authority has counterclaimed for rent in this case on the theory that the plaintiff, at least since 1974, has been a tenant at sufferance of the Authority. For the foregoing reasons. the Authority has failed to carry its burden of proof on this issue.

Even if the Authority's proof had been sufficient to establish that the plaintiff was a tenant at sufferance of the Authority, the Authority would not be entitled to rent and use and occupancy damages from the plaintiff under G. L. c. 186, § 3, since the court rules that the Authority has failed to sustain its burden of proving that the plaintiff had actual notice of the Authority’s ownership of the locus. At common law, a tenant at sufferance was not strictly liable to pay rent, but he was liable for his use and occupation of the premises unless he asserted an adverse title. Merrill v. Bullock, 105 Mass. 486 , 490 (1870). Tenants at sufferance are now liable in an action for rent under G. L. c. 186, § 3 which provides “[t]enants at sufferance in possession of land or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same.” However, the Supreme Judicial Court has consistently held, as a condition precedent to recovery under c. 186, § 3, that “... notice in some form be given to the tenant at sufferance that the interest of his landlord has been transferred.” Lowell Housing Authority v. Save-Mor Furniture Stores, Inc., 346 Mass. 436 , 430 (1963), and cases cited.

To sustain its burden of proving that the plaintiff had actual knowledge of the vesting of title to the locus in the Authority, the Authority relies, in part, on minutes of one of the plaintiff's meetings at which the plaintiff’s members were urged to take certain action “before the new Port Authority takes over.” The court finds and rules that this statement by one of the plaintiff’s members before title to the locus vested in the Authority is not sufficient evidence to show the plaintiff’s actual knowledge that the Authority had, in fact, acquired title to the locus.

The Authority also relies on the general rule of Iaw that every citizen is automatically on notice of legislative enactments. However, title to the “airport properties,” including the locus, did not vest in the Authority immediately upon the enactment of St. 1956, c. 465. Rather, as a condition precedent to such vesting, the Authority had to pay certain sums of money to the state treasurer. Since these sums were not paid until February 17, 1959, three years after the enactment of St. 1956, c. 465, the statute itself could not, and did not, constitute actual notice to the plaintiff of the vesting of title to the locus in the Authority. In any event, it is difficult to determine from the statute exactly what land is included within the term “airport properties” as defined in St. 1956, c. 465, § 1(b). The plaintiff has continually denied that the locus was included within the term “airport properties,” and it was not until the decision in the companion case, Registration Case No. 15259-S, that the issue of who, in fact owned the locus was finally resolved.

The enactment of St. 1960, c. 763, lent at least some credence to the plaintiff's argument that the Legislature had not intended to convey the locus to the Authority. In 1974, the D.P.W. appeared ready and willing to convey the locus to the plaintiff. Also in 1974, the City of Boston sent the plaintiff a tax bill in the amount of $4,425.75 for the locus. The plaintiff then applied for and received a tax abatement of $1,868.65. None of these facts comport with a finding that the plaintiff had actual knowledge that the Authority owned the locus and was entitled to the rents therefrom.

In Merrill v. Bullock, 105 Mass. 486 (1870), the Supreme Judicial Court interpreted G. L. c. 186, § 3's antecedent and found that the intention of the Legislature was “... not to make the occupant of land liable to an action of contract by a person whose title he had never admitted, expressly or by implication, but had always denied, and whose tenant he had never in any sense been ....” Id. at 492. The court finds that the plaintiff has, at all material times, continuously denied the Authority’s title to the locus. The acts in the case of Swift v. Boyd, 202 Mass. 26 (1909) in which the tenant knew that his landlord had transferred all interest in the property but refused to pay rent to the new landlord are distinguishable from the facts in the instant case. See Burke v. Willard, 243 Mass. 547 , 551 (1923). The Authority never attempted to collect rent from the plaintiff until it counterclaimed in this case, and indeed was apparently unaware of the plaintiff’s use of airport land until 1974, fifteen years after title to the locus vested in the Authority. The court, therefore, finds and rules that, even if the plaintiff were a tenant at sufferance of the Authority, it would not be liable to the Authority in an action for rent under G.L. c. 186, § 3 since the Authority has failed to sustain its burden of proving that the plaintiff had actual notice of the Authority’s acquisition of title to the land.

In summary, for the reasons set forth in this decision, the court rules that:

1. The Commonwealth has had no right, title or interest in the locus since February 17, 1959 when title to all the “airport properties,” including the locus, vested in the Authority.

2. The plaintiff is not entitled to a conveyance of the locus pursuant to St. 1960, c. 763 since the Commonwealth has had no right, title or interest in the locus since February 17, 1959.

3. The Authority has not sustained its burden of proving that the plaintiff is a tenant at sufferance of said Authority.

4. Even if the plaintiff were a tenant at sufferance of the Authority, the Authority could not collect rent from said plaintiff under G. L. c. 186, § 3 since the Authority has not sustained its burden of proving that the plaintiff had actual notice of the Authority’s ownership of the locus.

Judgment to enter accordingly.