SUP. CT. 37282

December 2, 1980

Barnstable, ss.

Randall, C. J.


By a complaint filed on September 6, 1977 in the Superior Court for Barnstable County, plaintiff Nathaniel Wright seeks assessment of damages against the defendant, the Commonwealth of Massachusetts, arising from the taking by eminent domain of two parcels of land claimed to be owned by the plaintiff and located in the town of Harwich, Massachusetts. Plaintiff also seeks an order for damages together with interest and costs.

By way of answer filed on November 21, 1977, defendant denies that plaintiff received no notice of a taking made by the deendant's Department of Natural Resources (now the Department of Environmental Management) in Harwich and further denies that plaintiff first received notice of the taking in July, 1977. Defendant also denies that it owes the plaintiff compensation of any kind. The defendant calls upon plaintiff to prove his title and all elements of the damages sought; and, states that plaintiff is barred from recovery because this action was not commenced within the time allowed by G. L. c. 79, §16.

Pursuant to an administrative order of the Chief Administrative Justice of the Trial Court and with the concurrence of this Court the plaintiff's action was transferred to the Land Court Department by an Order of Transfer made on July 21, 1980 by Chief Justice James B. Lynch of the Superior Court Department. The Order of Transfer states that this matter was transferred for the determination of issues of title and the determination of whether or not the plaintiff is a person entitled to recover damages for the eminent domain taking, and, if so, for a finding as to the amount of damages. The Order also stipulates that if a further trial by jury is required, this action shall be re-transferred to the Superior Court Department.

On September 29, 1980, the parties entered a stipulation (Exhibit 1) agreeing upon certain points which are incorporated with the Court's findings of facts. As part of the stipulation the parties agreed that there exists an actual and serious controversy as to when plaintiff received actual notice of the taking and whether or not plaintiff's action is barred by G. L. c. 79, § 16. The parties further agreed that these two issues may be heard and decided by this Court first, apart from the remainder of plaintiff's case, and, that depending upon these findings the other issues of plaintiff's title and damages would be then addressed.

Trial was held on the thirtieth day of September 1980 with three exhibits being introduced into evidence and testimony taken from three witnesses. Exhibits, including the stipulation referred to above (Exhibit 1), to which 17 subexhibits are annexed and numbered 1a through 17, are incorporated by reference herein for the purpose of any appeal. All references to recorded instruments are to instruments recorded at the Barnstable Registry of Deeds.

Upon all of the evidence the Court finds the following facts:

1. Robert L. Watson conveyed two parcels of land located in Harwich, Massachusetts, one of six acres and one of two acres to plaintiff Nathaniel Wright, a resident of California by quit- claim deed dated July 14, 1958 (Exhibit 1 - subexhibit 1-1a) recorded in Book 1027 at Page 185.

2. On December 7, 1970 defendant through the then Commissioner of the Department of Natural Resources Mr. Arthur Brownell, executed an order of taking of two parcels of land, one consisting of 183.9 acres and the other of 12.41 acres, located in the Hawksnest Pond area of Harwich. This order (Exhibit l - subexhibit 2) was recorded on December 14, 1970 in Book 1493 at Page 880 along with a plan of the taken lands (Exhibit 1 - subexhibit 3), filed in tube 170.

3. A notice of taking (Exhibit 2) dated December 30, 1970 and signed by Mr. Brownell recites the recording particulars of the order and plan and states that the lands were taken for recreation and conservation purposes, that requests for damages could be directed to Mr. Brownell, and that petitions for damages incurred as a result of the taking might be filed within two years of the date upon which the order of taking was recorded.

4. In a memorandum dated January 8 1971 and captioned, "Acquisition, Thompson property posting" (Exhibit 3), Mr. Charles Orsi, Regional Supervisor of the Department of Natural Resources, certified that seven notices of taking had been posted on the boundary lines of the "Thompson property", another on "the cottage", and still another at the Harwich Town Office.

5. At some time in 1972, plaintiff learned of defendant's plan for acquisition of lands in the Harwich area. As a result of this information, plaintiff apparently made inquiries which resulted in a letter to him from the selectmen of Harwich, dated November 27, 1972 (Exhibit 1 - subexhibit 4). The selectmen informed plaintiff that only the property of one Dr. Thompson and a Mrs. Colburn were affected by the taking but that defendant planned further acquisitions in Harwich and that plaintiff should contact Mr. Brownell for further information.

6. On December 12, 1972 plaintiff wrote to Mr. Brownell a letter (Exhibit 1 - subexhibit 5) which marked the beginning of a protracted series of correspondence and other communications between the parties which did not end until February, 1977.

7. Between December 12, 1972 and June 21, 1974 seven letters passed between the parties (see Exhibit 1 - subexhibits 5-11). In this series of letters, plaintiff expressed his interest in defendant's plans for future acquisitions of property in Harwich and in the determination of the value of his eight acres in Harwich. Defendant responded by forwarding to plaintiff a brochure which described its plans for the Hawksnest Pond area of Harwich, (Exhibit 1 - subexhibit 6) and by requesting that plaintiff send to defendant a copy of his deed to facilitate the locating of plaintiff's property.

8. Plaintiff mailed his deed to defendant (Exhibit 1 - subexhibit 8) and defendantresponded by stating that it could be assumed plaintiff's property was included "...within the next coming acquisition phase ..." for the Harwich area (Exhibit 1 - subexhibit 9). Defendant also stressed the difficulty of fixing with exactitude the location of parcels in Harwich and suggested that an "independent appraisal" of plaintiff's property could be expedited by an offer of sale of the property. Plaintiff made such an offer on August 31, 1973 (Exhibit 1 - subexhibit 10).

9. On June 21, 1974 plaintiff wrote to Mr. John Lenkiewicz Right of Way Agent for the defendant, and explained that he would be unable to visit Harwich to assist in the locating of his land (Exhibit 1 - subexhibit 11) but reminded defendant that it was to perform an independent appraisal of his land pursuant to his offer of sale.

10. At some point between June 21, 1974 and November 22, 1974, plaintiff employed the Eldridge Surveying Company to survey his land in Harwich. As a result of this survey, plaintiff again wrote to defendant and stated, "It appears that the Commonwealth took my land on December 7, 1970...", (Exhibit 1 - subexhibit 12). It appears that the private surveyors informed plaintiff that some form of redress was available to him under G. L. c. 79, § 6. Plaintiff reiterated his desire to sell his land to the defendant and requested advice as to the "next step" and an explanation of section 6.

11. By letter dated December 16, 1974 (Exhibit 1 - subexhibit 13) defendant advised plaintiff that it would "...take (sic) the matter of your property location with our attorney and men in the field." Receipt of the private surveyor's sketch plan of plaintiff's land was acknowledged and defendant stated that it would apprise plaintiff of the "details of our investigation". A copy of G. L. c. 79, §6 appears to have accompanied defendant's letter.

12. There was no further communication between the parties until June 28, 1976 when plaintiff again wrote to defendant (Exhibit 1 - subexhibits 14-14a). Plaintiff stated that defendant had paid "...a Dr. Thompson et al several thousand dollars..." for land "not entirely theirs". Plaintiff requested an investigation and noted that he was "...never notified about any 'taking' other that (sic) asking at the Harwich Tax Collector's Office".

13. On July 12, 1976, Dr. Bette Woody, Commissioner of the Department of Environmental Management wrote to plaintiff (Exhibit 1 - subexhibit 15) and stressed that his claim that his land had been taken "could be valid". Dr. Woody stated further that total compensation for the taking had been paid to Dr. Thompson and outlined the conditions upon which defendant might recognize plaintiff's claim.

14. In response to a request made on December 2, 1976 by Mr. Matthew Moloshok, an attorney employed by the plaintiff, Mr. Stephen G. McLean, Senior Right of Way Agent for the defendant wrote to Mr. Moloshok concerning plaintiff's land (see Exhibit 1 - subexhibits 16-16b). In this letter, dated December 13, 1976, Mr. McLean stated that he had determined

"...that there does not exist a satisfactory answer as to where Mr. Wright's property lies in relation to the order of taking perimeter boundaries."

Mr. McLean explained the difficulties associated with locating properties on Cape Cod and suggested that the only solution to the problem of locating plaintiff's property would be for plaintiff to visit Harwich and indicate to defendant where he believed his land to be situated.

15. On February 11, 1977 plaintiff wrote to Mr. McLean (Exhibit 1 - subexhibit 17) and expressed his willingness to meet with defendant's representatives in Harwich.

16. According to the plaintiff, a meeting between the parties was scheduld for July 19, 1977 but this did not take place because, by telephone July 18, 1977, plaintiff was informed by defendant that his land had indeed been included in the taking made in December, 1970.

The defendant has denied that the plaintiff has title to any of the land taken. Plaintiff's title will be determined in phase two of this trial depending upon the outcome of this first phase. Assuming that plaintiff had title to a portion of the land taken by the defendant, two questions must be determined in this first phase: 1. When did plaintiff receive notice of the taking? and 2. Is the plaintiff barred by the provisions of G. L. c. 79, § 16, the statute of limitations?

I. When did plaintiff receive notice of the taking?

Plaintiff's right to damages vested on December 14, 1970, the date when defendant's order of taking was recorded. Grove Hall Savings Bank v. Dedham, 284 Mass. 92 . Under the provisions of G. L. c. 79, § 7C the defendant had the duty to thereupon "give notice thereof to every person ...whose property has been taken..." The type of notice and service of notice is thereupon described in § 7C. The Court finds that at no time did the plaintiff receive such formal notice.

The last sentence of §7C provides that

"Failure to give notice shall not affect the time within which a petition for damages may be filed, except as provided by section sixteen."

This latter section, §16, provides that a petition for the assessment of damages may be filed within two years after the right to such damages vests. The exception referred to in section 7C above covers two situations and provides in material part:

"...but any person, including every mortgagee of record, whose property has been taken or injured and who has not received notice under section 8 (now section 7C) or otherwise of the proceedings whereby he is entitled to damages at least sixty days before the expiration of such two years, may file such petition within six months after the taking possession of his property or the receipt by him of actual notice of the taking, whichever first occurs, or, if his property has not been taken, within six months after he first suffers actual inJury in his property." (Underlined by the Court for emphasis)

To succeed in this action, plaintiff must bring himself within this above cited exception. In 1972, upon learning that there had been a taking in the Harwich area plaintiff made every reasonable effort, given that at all material times he was resident in California, to determine the circumstances of that taking. He was assured by the selectmen of Harwich that only Dr. Thompson's property was taken and also by the defendant that his land had not been included in the December, 1970 taking (Paragraph 5). His belief that his land had not been taken could only have been strengthened by defendant's view that, in all probability, plaintiff's property would be acquired during the second stage of defendant's acquisition plans for the Harwich area. The defendant encouraged plaintiff's efforts to determine the precise location of his property so that its value could be fixed to facilitate matters in the event of its future acquisition. In response to requests by the defendant, plaintiff forwarded to it his deed and made an offer to sell his land to the defendant.

Between the time plaintiff first learned of the Harwich taking in 1972 and June, 1974, plaintiff had, at most, a mere inquiry notice of the taking, that is, notice of such a kind as would lead a person in plaintiff's position to inquire into the circumstances of the taking.The Court finds that plaintiff conscientiously discharged any burden such notice might have placed upon him.

In his continuing efforts to locate his property to the satisfaction of the defendant, plaintiff, of his own accord had a survey of his property conducted sometime between June and November, 1974. As a result of this, he was informed by the private surveyor that it appeared that his land had been taken in 1970 (Exhibit 1 - subexhibit 12) and inquired of the defendant what his "next step" should be. Defendant responded (Exhibit l - subexhibit 13) by promising an investigation, the findings of which would be forwarded to plaintiff.

Did plaintiff have actual notice of the taking as a result of his own private survey? In Cann v. Commonwealth, 353 Mass. 71 , plaintiff landowners received no formal notice of an eminent domain taking. They, like Mr. Wright wrote letters to persons in authority regarding the taking which occurred in October, 1961. In July, 1965, the plaintiffs received from their congressman a copy of a letter to the congressman from the defendant which stated, in part: "There was an access taking from Mr. Cann's property...". The Court held that that letter amounted to actual notice, as opposed to inquiry notice, and that plaintiff's action for damages, begun in 1964, was barred by Section 16 of G. L. c. 79.

In the Cann case, the notice issued from the defendant itself and was clear and unequivocal in its terms. It was the kind of notice that directly brought home to the plaintiffs that their land had been affected by the taking. In the instant case, the result of plaintiff's private survey was contrary to everything both plaintiff and defendant had believed to that point regarding the 1970 taking. Inarguably, the survey results gave plaintiff knowledge of facts sufficient to put him on inquiry as to the taking of his land in particular. It imposed upon him the duty to make further inquiry, a duty which he discharged by seeking confirmation of the survey results from defendant.

For its part, defendant continued to equivocate and express its doubts as to whether plaintiff's land had indeed been taken. In addition, defendant led plaintiff to believe it would investigate the matter and inform him of the results thereof. (Paragraph 11 herein) This did not occur, unless a telephone conversation of July, 1977, can be considered to be the result of that investigation. Plaintiff again contacted defendant in 1976 (See Exhibit 1 - subexhibit 14). This resulted in correspondence between the parties concluding with the letter from Mr. McLean to plaintiff's attorney (Exhibit 1 - subexhibit 16) wherein he stated that the location of plaintiff's land within the taken lands was still in doubt.

The Court agrees that the term "actual notice" in Section 16 of G. L. c. 79 must be construed with the same "considerable strictness" required for its construction as the "actual notice" required in Chapter 183, §4. (See: McCarthy v. Lane, 301 Mass. 125 ; Tramontozzi v. D'Amicis, 344 Mass. 514 , 517). The Court finds that the results of the survey of plaintiff's land were not actual notice of the taking, but, rather, mere inquiry notice thereof. There is nothing in the correspondence which followed the survey which amounted to actual notice. The Court concludes that the point at which the plaintiff had actual notice of the taking occurred on July 18, 1977 when he was informed by telephone that there was no reason to meet defendant's representatives on the land on July 19, 1977 since the defendant had determined that the land had been taken in December, 1970.

Under the exception in Section 16 is the provision that "taking possession of his property" gives rise to a claim for damages.

Did the defendant actually take possession of plaintiff's land prior to the date upon which plaintiff received actual notice of the taking?

When the defendant posted the lands taken in 1970, it believed it was posting the "Thompson property", not the plaintiff's land. The posting of Dr. Thompson's cottage and its subsequent demolition had nothing to do with "taking possessionn of plaintiff's land. Defendant testified that at some time a gate had been placed or erected at the entrance of a road into the taken property. Plaintiff testified that he had seen no such gate and that there was no real road leading into his property; the "buggy tracks" leading to his land had not been blocked in any way. Defendant admitted that it had not pursued the second stage of its acquisition plans nor had any work been begun on the state park-camping ground proposed for the Hawksnest Pond area. In sum, defendant did not present evidence sufficient to show that it had taken possession of plaintiff's property and the Court so finds.

II. Is the plaintiff barred by the provisions of G. L. c. 79, §16?

The Court finds that the plaintiff brought his action for damages in the Superior Court on September 6, 1977. G. L. c. 79, §16 provides that where no formal notice has been received, a petition for damages may be filed "within six months after the taking possession of his property or the receipt by him of actual notice of the taking, whichever first occurs." The Court has found above that there was no "taking possession" of plaintiff's property to commence the tolling of the six months and that actual notice to the plaintiff occurred on July 18, 1977. Since this action was commenced on September 6, 1977, it was well within the six months provided by section 16 and the Court so finds.

Because of the nature of the findings made by the Court in this phase of plaintiff's case, the Court need not direct its attention to the issue of whether or not defendant, by its conduct and statements, is estopped from denying that plaintiff did not have notice of the taking of the property to which he claims title.

Plaintiff has submitted two requests for findings of fact both of which are allowed as being consistent with the Court's own findings of fact. In addition, paintiff submitted nine requests for rulings of law. Of these, the Court allows the requests numbered 1, 2, 7 and 9. All others are denied.

The Court rules that plaintiff received actual notice of the taking on July 18, 1977, that defendant did not take possession of plaintiff's property and that plaintiff's action for damages is not barred by the provisions of G. L. c. 79, §16.

Judgment accordingly.