NANTUCKET CONSERVATION FOUNDATION, INC. vs. RUSSELL MANAGEMENT, INC.

Nantucket Conservation Foundation, Inc., the plaintiff (the "Foundation"), seeks a declaratory judgment pursuant to G. L. c. 231A and c.185, §1 (k) determining the rights of Russell Management, Inc., the defendant ("Russell"), to install utilities in a right of way adjoining Russell's land off Milestone Road in the Town and County of Nantucket. The relief requested tracks in part that sought in Land Court Miscellaneous Case No. 68262, wherein this Court construed the extent of the rights of the owner of a dominant tenement to construct, maintain and install utilities in a general right of way. In the prior case it was held that Russell had the right to "do all things necessary to make the way passable and useable ... including the making of reasonable repairs and improvements to the way," but that it could not install utilities therein. This decision was based on the 1923 Supreme Judicial Court decision of Crullen v. Edison Electric Illuminating Co., 243 Mass. 93 (1925), and its progeny. The Appeals Court affirmed the Land Court decision in a rescript opinion. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 2 Mass. App. Ct. 868 (1974) (rescript).

Subsequent to the trial court decision but prior to the ruling of the Appeals Court, the legislature enacted St. 1973, c. 918, codified as G. L. c. 187, §5, on October 16, 1973, which provided that:

Section 5. The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install, or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, provided such facilities do not unreasonably obstruct said private way or other private ways and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways. Any such owner or owners may grant permission to a public utility company or companies to enter upon said way or other private ways to place, install, repair or relocate pipes, conduits, manholes, and other necessary appurtenances for the transmission of gas in accordance with such company or companies regulations, practices and tariffs filed with the department of public utilities. Neither the person installing or repairing public utility facilities, nor such facilities, nor the gas transmitted shall be deemed to constitute a trespass upon said way or ways.

This statute was subsequently amended by St. 1975, c. 610 to include within the scope of implied rights the right "to place, install, or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of ... electricity and telephone service ...." At present, G. L. c. 187, §5 reads as follows:

Section 5. The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install, or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity and telephone service, provided such facilities do not unreasonably obstruct said private way or other private ways and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways; and provided further that such placement, installation, or construction is done in accordance with regulations, plans and practices of the utility company which is to provide the service. Any such owner or owners may grant permission to a public utility company or companies to enter upon said way or other private ways to place, install, repair or relocate pipes, conduits, manholes, and other necessary appurtenances for the transmission of gas, electricity or telephone service in accordance with such company or companies regulations, practices and tariffs filed with the department of public utilities. Neither the person installing or repairing public utility facili- ties, nor such facilites, nor the gas, electricity or telephone service transmitted shall be deemed to constitute a trespass upon said way or ways.

Russell has now obtained approval from the Nantucket Planning Board for a subdivision consisting of thirty-six lots, and the question is again presented as to its right to provide the lots in the subdivision with utilities. The conduits for electricity and telephone service can reach Russell's property from a public way only by use of the way referred to above.

After the commencement of the present proceeding, Russell filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) for failure to state a claim upon which relief can be granted or, alternatively, for an order for a more definite statement under Mass. R. Civ. P. 12 (e). However, because the parties have entered into a Statement of Agreed Facts and have argued the defendant's motion at length, I treat it as a Motion for Summary Judgment pursuant to Mass. R. Civ. P. 56.

The Statement of Agreed Facts reads as follows:

The parties in the above entitled matter hereby agree that the following constitute all the material and ultimate facts upon which the rights of the parties depend:

1. The Plaintiff, Nantucket Conservation Foundation, Inc., is a charitable corporation founded in 1965 and incorporated under the laws of the Commonwealth of Massachusetts with a usual place of business at 30 Main Street, Nantucket, Massachusetts 02554 (the "Foundation").

2. The Defendant, Russell Management, Inc., is a Massachusetts corporation having a usual place of business at 83 Concord Avenue, Belmont, Massachusetts 02138 ("Russell").

3. Russell is the owner of record of that parcel of registered land situated in Nantucket shown as Lot H on Land Court Subdivision Plan No. 5004-J and described in Certificate of Title No. 6548 registered in Registration Book 33, page 148 for the Registry District of Nantucket County ("Lot H").

4. The Foundation is the owner of land which abuts Lot H on the north, east and south. The Foundation is the owner of that land, shown as Lot 508 on Land Court Subdivision Plan No. 5004-7, which lies to the south and east of Lot H and which is described in Certificate of Title No. 5652 issued by the Nantucket Registry District ("Lot 508"). The Foundation is also the owner of that land, shown as Lot 8 on Land Court Subdivision Plan No. 5004-B, which lies to the north of Lot H and which is described in Certificate of Title No. 6703 issued by the Nantucket Registry District ("Lot 8").

5. Both Lot 8 and Lot H are bounded on the west by a fifty foot wide right of way which runs in a north-south direction from Milestone Road, a state highway on the north, to a point just northerly of the top of the bluff at the Atlantic Ocean on the south (the "Way"). The fee of the Way is part of Lot 508 except for that part of the easterly half of the Way which abuts Lot 8 and Lot H and is owned by the owners thereof, subject in all cases to the rights of the owners of land abutting on the Way to use as set forth in the respective Certificates of Title. The only access to Lot H is by the Way.

6. In Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., Land Court Miscellaneous Case No. 68262 (August 22, 1973), the Foundation sought a declaration of whether Russell

may excavate, grade or alter any part of the 50 foot way for the purpose of installing, repairing and maintaining any instrumentalities incidental to the provisions of municipal services and utilities to Lot H.

In that case the Land Court found, ruled and decreed that Russell's rights in the Way were not broad enough to include the right to install utilities within the Way. The final decree of the Land Court was affirmed by the Appeals Court in Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 1974 Mass. Adv. Sh. 844, 315 N.E. 2d 625 (1974), and the record in those proceedings is incorporated herein.

7. On October 16, 1973, following the Land Court decision in Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., supra, the General Court enacted Chapter 918 of the Acts of 1973 made effective immediately on an emergency basis (Massachusetts General Laws, Ch. 187, Section 5), which provides in pertinent part:

The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install, or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appur- tenances necessary for the transmission of gas....

8. In 1975, the General Court enacted Chapter 610 of the Acts of 1975, amending Chapter 918 of the Acts of 1973, so that Massachusetts General Laws, Ch. 187, Section 5 now provides in pertinent part:

The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appur- tenances necessary for the transmission of gas, electricity and telephone service....

9. Russell has received the approval of the Nantucket Planning Board under General Laws, Ch. 41, Sections 81K-81GG of a definitive subdivision plan showing the subdivision of Lot H into 36 1 1/4 acre lots.

10. A chalk copy of the subdivision plan is appended hereto marked "A" and a chalk copy of Land Court plan No. 5004-7 on which is delineated Lots 508, 8 and H is appended hereto marked "B".

11. Russell has recently installed a gravel surface road over the Way to and beyond the southwesterly corner of its land.

12. Based on its interpretation of Massachusetts General Laws, Chapter 187, Section 5, Russell intends to construct, on each of its 36 lots, a dwelling house and, in service thereof, intends to cause to be installed in the Way utility lines to furnish electric and telephone service.

13. The Foundation asserts that Russell's rights to use the Way, as set forth in Certificate of Title #6548, because of the adjudication (see paragraph 6 above), does not include the right to install utilities within the Way; that Massachusetts General Laws, Chapter 187, Section 5 is improperly invoked by Russell; that said statute, as applied to the Foundation's land, if it is held to apply to easements created prior to the effective date of said statute, constitutes an unconstitutional taking of property rights of the Foundation in the Way which is prohibited by the Constitutions of the Commonwealth and of the United States, Mass. Constitution Part I, art. 10, U.S.C. Const. Amd 14; the Foundation further contends that contract rights regarding the easement are in dispute.

14. Hence, an actual controversy exists between the parties.

From the foregoing statement it is apparent that there are two paramount issues to be decided. The initial inquiry is whether the General Court intended St. 1973, c. 918 and St. 1975, c. 610 to operate retrospectively and if so, whether they constitutionally can. The question was raised but not decided in Lunny v. Klaus, Land Court Miscellaneous Case No. 73708, and appears to be one of first impression. From the wording of the statute it seems clear that the General Court did indeed intend it to be applied retrospectively. Said Section 5 applies to the owners of real estate "abutting on a private way who have by deed existing rights of ingress and egress upon such way." St. 1973, c. 918 (emphasis supplied); see id., emergency preamble. By its very terms, the statute applies to rights of way existing at the date of its enactment, originally in 1973 and thereafter as amended in 1975. The careful conveyancer has provided, since the decision in the case of Crullen v. Edison Electric Illuminating Co., supra, that a grant of a right of way is to be for all purposes for which streets or ways are commonly used in the particular locality where the grant is made. This is considered adequate to reflect the grantor's intention that the easement is to include the right to install utilities in the way. A like rule has been applied by implication when the grant is by reference to a lot on a plan of a subdivision, at least as to registered land. However, as earlier litigation in this case illustrates, the rule governing the installation of utilities has been otherwise when a general grant of a right of way without more has been given. This rule seems anomalous as we approach the twenty-first century, at least with the safeguards provided in Section 5 and undoubtedly would be decided differently today. The question which we face is whether it now can be changed retroactively.

The usual rule is that statutes are to operate prospectively unless, as here, a contrary legislative intent is shown. Yates v. General Motors Acceptance Corp., 356 Mass. 529 (1969); Murphy v. Planning Board of Norwell, Mass. App. Ct. (1977). [Note 1] These rules apply to amendments as well as to original acts. Addison v. Buck Food Carriers, Inc., 363 F. Supp. 1016, 1018 (D. Mass. 1973), affirmed, 489 F. 2d 1041 (1st Cir. 1974). The courts in the pst have frequently stated that they reach their conclusions as to whether a statute should be applied prospectively by determining whether it is curative and not one affecting substantive rights. Usually it is held that the statute may be applied retroactively if the legislature so intended and it does not impair vested rights. On point is Opinion of the Justices, 337 Mass. 786 (1958), holding that a bill which restricted inchoate rights of dower and curtsy validly operated retrospectively, because the legislature served the public interest and affected contingent as opposed to vested rights. It is impossible, however, to reconcile the decision in this field, and the authorities have concluded that a law is held to affect substantive rights if the judiciary believes that retroactive application of the statute will result in measurable unfairness. Thus, it is the equity of the enactment which controls, not the nature of the right. Danforth v. Groton Water Co., 178 Mass. 472 , 475-77 (1901) (Holmes, C.J.); C. Sands, 2 Statutes and Statutory Construction §41.05, at 259-60 (3d ed. rev. 1973); Greenblatt, Judicial Limitations on Retroactive Civil Legislation, 51 Nw. U.L. Rev. 540, 550-51, 561-63 (1956).

It has been no deterrent to such retrospective application that the statute under consideration affects interests in real estate, for as early as 1930 the Supreme Judicial Court in Smith v. New England Aircraft Co., 270 Mass. 511 (1930), listed many examples where the legislature validly invoked its police power to affect rights in real estate without thereby exercising its power under eminent domain. After detailing several cases where there had been damages to adjacent land arising from smoke, noise or unpleasant odors, Chief Justice Rugg went on to state:

The mill acts in certain aspects authorize a direct invasion of private rights in real estate. Notwithstanding such invasion they are sustained, not as an exercise of the power of eminent domain but as a regulation under the police power of private rights in the waters of a flowing stream not otherwise susceptible of valuable use. Lowell v. Boston, 111 Mass. 454 , 464-467. Blackstone Manuf. Co. v. Blackstone, 200 Mass. 82 , 88. Duncan v. New England Power Co. 250 Mass. 228 . Dickinson v. New England Power Co. 257 Mass. 108 . Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 448, 449. On the same principle, statutes authorizing the flowing of land for the cultivation of cranberries and for the culture of useful fishes have been sustained. Turner v. Nye, 154 Mass. 579 . There are numerous statutes upheld as an exercise of the police power interfering with, narrowing and regulating, private rights of landowners in the use of their estate. There are many illustrations of the exercise of this power: rights of fishery in nonnavigable streams, Commonwealth v. Alger, 7 Cush. 53 , 84, 85, 97-102; the establishment of fire districts and regulation of the material and method of construction of buildings, Commonwealth v. Atlas, 244 Mass. 78 , 82, and cases collected; Stevens, landowner, 228 Mass. 368 ; requirements for the installation of sprinklers, Commonwealth v. Badger, 243 Mass. 137 ; creation for construction of buildings of set-back lines from streets, Slack v. Inspector of Buildings of Wellesley, 262 Mass. 404 ; prohibition of fences above a limited height, Rideout v. Knox, 148 Mass. 368 ; regulation of height of buildings, Welch v. Swasey, 193 Mass. 364 , affirmed 214 U.S. 91; and the establishing of zoning districts restricting the use of land in defined territories, Inspector of Buildings of Lowell v. Stuklosa, 250 Mass. 52 ; Euclid v. Ambler Realty Co. 272 U.S. 365. Numerous cases upholding statutes of this general nature are collected and reviewed in Opinion of the Justices, 234 Mass. 597 , and need not again be analyzed. There are other instances of limitation of the right of absolute ownership, without special statute, in the law of passing over property of private landowners in the exercise of a general right, as, for example, access to great ponds for fishing and fowling, West Roxbury v. Stoddard, 7 Allen 158 , 166; Slater v. Cunn, 170 Mass. 509 , 514; right of travellers when highway is blocked, Campbell v. Race, 7 Cush. 408 , and in some western States to graze livestock on unfenced private land, Buford v. Houtz, 133 U.S. 320; MacKay v. Uinta Development Co. 135 C.C.A. 18. An extreme instance of regulation of private ownership was the act of Congress forbidding the ejectment by a landlord of a tenant who desired to remain at the former rental or such rental as was fixed by a commission, the validity of which was upheld as an emergency measure in Block v. Hirsh, 256 U.S. 135.

Since the Smith case was decided, its ultimate question of regulation as against confiscation, see Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 , 235-37 (1972), has often been faced by our Court. The ultimate benefit to the public from flood plain zoning upheld the exercise of police power in the Turnpike Realty Co. case, but the attempt to increase the public right to pass along the foreshore was held to be a violation of constitutional rights in Opinion of the Justices, 365 Mass. 681 (1974). The courts initially defer to the determination of the General Court as to what is a proper exercise of police power but do not hesitate to overrule the legislature's conclusions if it appears that property is being taken without due process. The rule is state in Paquette v. City of Fall River, 338 Mass. 368 (1959), as follows: "...the decision as to what measures are necessary for the preservation of life, health, and morals is in the first place a matter for the legislative authority, and every presumption must be made in favor of the validity or statutes or ordinances enacted to further those objectives." The determination by the legislature that a general right of way includes the right ot install conduits for gas, electricity and telephone is attuned to present conditions of living. The owner of the dominant tenement already has the right to use the land in question for passage; the statute broadens this to include the right to install utilities underground provided the conditions spelled out in the statute are met. There are objective reasons of health and safety for the statutory construction and whatever infringement there may be of the rights of the owner of the servient tenement, it is such as to fall within the valid exercise of the police power.

The foundation argues that in any event this Court already has interpreted the meaning of Russell's appurtenant right, and its rights cannot therefore be broadened by legislative fiat. However, Russell No. 1 was decided in the light of the law as it then existed. If the statutes constitutionally can apply generally to the owners of dominant tenements whose rights had been granted prior to the statutory change in the preexisting law, then it would be inequitable to apply a different rule to Russell's right. See Watson v. Mercer, 33 U.S. (8 Pet.) 88, 109-110 (1834); Hall v. Street Commissioners of Boston, 177 Mass. 434 , 438-39 (1901).

I, therefore, find and rule that the General Court intended Chapter 187, Section 5, to apply retrospectively and that it constitutionally may be so applied, both to Russell's appurtenant right and generally.

Decree accordingly.