On October 24, 1968 the City of Chicopee filed a petition to foreclose a tax lien on real property of the City of Springfield pursuant to the provisions of General Laws, Chapter 60, Section 65. The City of Springfield answered and alleged that it was the owner in fee of said property at all times during which the taxes in question were assessed, that the taxes and the tax sale on account thereof are void and of no effect, that the property was devoted to a public purpose and use, and requesting a reasonable time to redeem should the property be held to be taxable.
The case was assigned for a conference on November 5, 1979, a stipulation of agreed facts was filed on January 14, 1980, [Note 1] and oral arguments were heard by the Court on February 19, 1980. The stipulation is as follows:
1. The City of Chicopee is a municipal corporation duly organized and existing under the laws of the Commonwealth of Massachusetts.
2. The City of Springfield is a municipal corporation duly organized and existing under the laws of the Commonwealth of Massachusetts.
3. The City of Springfield is the record owner of a parcel of land located within the boundaries of the City of Chicopee. Said parcel consists of 52.32 acres.
(a) Said property was acquired in 1906 by the City of Springfield for the benefit of the Commonwealth of Massachusetts, to satisfy the provisions of Mass General Laws, Chapter 33, Section 121, which require that municipalities maintain outdoor ranges for units of the armed forces of the Commonwealth.
(b) Mass General Laws, Chapter 33, Section 121, a copy of which is hereto attached, has not been repealed by the General Court.
(c) At all times pertinent to these proceedings a unit of the Massachusetts National Guard has been stationed in the City of Springfield. Said unit is presently located at 50 Howard Street, Springfield, Massachusetts.
4. Said property is described in deeds, recorded in the Hampden County Registry of Deeds, Book 752, page 423, and Book 760, page 426 and page 469. Said parcel is commonly known as the "Springfield Rifle Range."
5. The City of Chicopee, under the provisions of Mass General Laws, Chapter 59, has annually assessed real property taxes upon the parcel.
6. On August 14, 1935, the City of Chicopee took tax title to the said property for failure to pay assessed taxes.
7. On September 22, 1944, the City of Chicopee filed a petition in the Land Court to foreclose all rights of redemption (No. 26613 T.L.).
8. On October 1, 1945, the Land Court determined that the "Rifle Range" was actually devoted to a public purpose.
9. On November 2, 1945, the City of Chicopee filed a Disclaimer and Release of the tax title. Said Disclaimer was recorded in the Hampden County Registry of Deeds at Book 1809, Page 237.
10. On March 29, 1965, the City of Chicopee took said parcel for failure to pay real property taxes since 1959 on said parcel. Said taking is recorded in the Hampden County Registry of Deeds at Book 3101, page 472.
11. On October 24, 1968, the City of Chicopee filed a petition to foreclose all rights of redemption in the Land Court. Said petition is recorded in the Hampden County Registry of Deeds at Book 3376, page 390.
(a) On November 9, 1971, Major Ralph Mills of the Massachusetts Army National Guard requested permission to use the "Rifle Range" for training purposes, not to include the use of live ammunition. Permission was granted by the City of Springfield.
(b) The City of Springfield, as it has in the past, will continue to make the "Rifle Range" available for use by units of the Massachusetts National Guard.
(c) The Adjutant General of the Commonwealth of Massachusetts has determined that the "Rifle Range" has not been used for small arms firing practice for over fifteen (15) years.
(d) The Armory Commission has agreed that the military Division of the Commonwealth has no further need of the Springfield Rifle Range.
12. The only point in controversy in the matter currently pending before this Court is whether or not the property known as the "Springfield Rifle Range" was actually devoted to a public use from 1959 to the present.
The parties conclude by praying that:
1. This Court make a determination as to whether or not the parcel known as the "Springfield Rifle Range" has been actually devoted to a public purpose.
2. This Court should make a determination as to the validity of the assessment and taking made by the City of Chicopee.
The tax taking referred to above in paragraph 10 was for the nonpayment of the real estate taxes for the years 1959 to 1964 inclusive. Presumably taxes for the subsequent years have been added to the tax title account.
G. L. c. 60 §65 gives this Court exclusive jurisdiction of petitions for the foreclosure of rights of redemption of land acquired by a sale or taking for taxes. However, it is provided in G. L. c. 59 §3A, in effect during the years for which the taxes in question were assessed, [Note 2] that while property owned by a city and not devoted to a public purpose is taxable,
[n]o tax assessed under this section shall be a lien upon the real estate with respect to which it is assessed; nor shall any such tax be enforced by any sale or taking of such real estate ...
The provisions of section 3A thus oust this Court of jurisdiction in a case like this where one city, alleges that it has a lien on the realty of another city for the nonpayment of real estate taxes and leaves to the Supeior Court jurisdiction of any complaint for the recovery of unpaid taxes.
However, the Land Court has already ruled once on the central issue of this case. By decision dated October 1, 1945 Judge John E. Fenton decided in a case of first impression that the maintenance of practice grounds for the organized militia as required by G. L. c. 33 §30 was a public use exempt from taxation. Since the parties and the property are the same, the earlier case controls the result here unless in the intervening tax years Springfield has ceased to devote the premises to a public use or abandoned "the design within a reasonable time to devote it to such use." Collector of Taxes of Milton v. Boston, 278 Mass. 274 , 277 (1932). The exemption for municipal property situated within the boundaries of another governmental unit but devoted to a public purpose rests not on any specific statutory provision but on judicial construction. One of the most cogent recent statements of the present state of the law was made by Justice Kirk in Boylston Water District v. Tahanto Regional School District, 353 Mass. 81 (1967) at pages 82-83 where he said:
The principle to be deduced from our decisions relating to taxation of one political subdivision by another political subdivision of the Commonwealth is that property "Held for a public use by one municipality within the territorial limits of another ... is not subject to taxation so long as it is actually devoted to a public use." Collector of Taxes of Milton v. Boston, 278 Mass. 274 , 277, and cases cited. The exemption of property so held is not founded on an express provision of statute, but rests upon general principles of propriety, justice and expediency. Wayland v. County Commrs. 4 Gray 500 . Boston v. Boston & Albany R.R. 170 Mass. 95 . Milford Water Co. v. Hopkinton, 192 Mass. 491 , 495. Collector of Taxes of Milton v. Boston, 278 Mass. 274 , 277. County of Middlesex v. Waltham, 278 Mass. 514 , 516. The reason for the rule is that property held and used for the benefit of the public should not be made to share the burden of paying public expenses. Boston v. Boston & Albany R.R. 170 Mass. 95 , 99. Collector of Taxes of Milton v. Boston, 278 Mass. 274 , 277.
See also Tax Collector of North Reading v. Reading, 366 Mass. 438 , 440-41 (1974).
Devotion to a public use is not synonymous with actual use; the City of Springfield has provided, as the General Court has directed, facilities for an outdoor range for units of the Commonwealth's armed forces. Such use has at best been very occasional. Yet so far as appears, the "Rifle Range" has been used for no other purpose nor has it been appropriated for any other purpose. County of Middlesex v. Waltham, 278 Mass. 514 (1932). No income has been derived by Springfield therefrom. The property has not been leased to a third party for nongovernmental functions as anticipated by G. L. c. 59 §3A. The test is not the same as it is in the instance of charitable corporations. Boylston Water District v. Tahanto Regional School District, supra at page 82. While there may have been changes in circumstances governing the use of Springfield's property situated in Chicopee, they do not appear on this record.
On all the evidence I find and rule that the parcel known as the "Springfield Rifle Range" has been actually devoted to a public purpose, that it is exempt from the assessment of real estate taxes, and that municipal property in any event is not subject to a lien for the nonpayment of real estate taxes and the equity of redemption cannot be foreclosed.
[Note 1] Other facts not included in the stipulation were alluded to in the brief for the petitioner. No testimony was offered at the hearing so the Court has considered only the facts set forth in the stipulation in reaching its decision. At the argument counsel for the respondent moved to strike certain provisions of the petitioner's brief and the motion was taken under advisement. The motion is now allowed insofar as it relates to facts not included in the stipulation.
[Note 2] G. L. c. 59 §3A was repealed by St. 1978, c. 580 §16 but will remain in effect until July 1, 1980. The same language is contained in c. 59 § 2B, inserted by St. 1979, c. 797 §11, which will become effective on July 1, 1980.