FLORENCE GUILD NIXON vs. COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, THE COMMONWEALTH OF MASSACHUSETTS and INHABITANTS OF THE TOWN OF PLYMOUTH.

The plaintiff, Florence Guild Nixon, of Brooklyn in the City and State of New York sought the assistance of the Superior Court Department of the Trial Court pursuant to Massachusetts General Laws Chapter 231A, Section 1 et seq., for the construction of an order of taking made by the Commissioner of Conservation by instrument dated April 22, 1936 and duly recorded with Plymouth Deeds, Book 1701, Page 387 (Exhibit No. 3). [Note 1] The original defendant, Commissioner of the Department of Environmental Management moved to have the case transferred to the Land Court Department, and his motion was allowed. He subsequently moved to dismiss the complaint, and the motion was renewed on behalf of the Commonwealth at the trial. This court, on condition that the Commonwealth and the Inhabitants of the Town of Plymouth be added as parties, [Note 2] denied the motion on these grounds:

The defendant argues that the complaint concerns a question relative to the real estate of the Commonwealth of Massachusetts as to which the Commonwealth has not given its consent for the institution of declaratory judgment proceedings against it. See Executive Air Services Inc. v. Division of Fisheries and Game, 342 Mass. 356 (1961). The latter case has been distinguished frequently, but it still represents the law of this state. However, the problem now under consideration does not concern the title of the sovereign to the state forest in Plymouth but only the status of the way along which the plaintiff seeks to have utility lines and poles constructed. If the way is public, then the taking on behalf of the Commonwealth by its own terms did not include it, and a petition to the selectmen, pursuant to the provisions of G. L. c. 166, will lie. Conversely, if the way is private, it was included within the taking and the utility service cannot be instituted without the approval of the present defendant pursuant to G. L. c. 21, §4A; whether in the latter case approval of the general court also would be required is an issue to be reached at the trial.

The case was tried on November 2, November 7 and November 8, 1979 at which times a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The Myles Standish State Forest in said Plymouth was established in 1917. Exhibit No. 5 is the plan of the Myles Standish State Forest recorded with the order of taking. In 1936 the Commissioner of Conservation took in fee simple on behalf of the Commonwealth the north-east addition to the Myles Standish State Forest which is shown on a plan entitled "Plan of the North- East Addition Myles Standish State Forest Survey by Lincoln Crowell January 1936 The Commonwealth of Massachusetts Department of Conservation Plan of Land To Be Taken in Plymouth" duly recorded in Plan Book 5, Page 532. (Exhibit No. 4). The plan shows as an easterly abutter to the North-East Addition one "Elmer H. Bartlett." Mr. Bartlett subsequently conveyed his land abutting the State Forest to the plaintiff's father William Guild, trustee, by deed dated November 5, 1945 and recorded in Book 1900, Page 31 (Exhibit No. 2), who in turn conveyed said land to the plaintiff by deed dated November 17, 1962 and recorded in Book 2984, Page 247 (Exhibit No. 1).

2. The 1936 order of taking by its terms took not only the premises described in the order of taking by metes and bounds but also "all easements, privileges, trees, structures and appurtenances of every name and nature thereto belonging." It further specifically provided as follows:

... Intending to take and hereby taking in fee simple, except as herein after mentioned, each and every tract, estate, parcel or part thereof included in the foregoing description, or however otherwise bounded and described, and be the said measurements or any of them more or less. There is expressly excepted, however, from this Order of Taking, and the operation thereof any telephone, telegraph and transmission lines, if any there may be on any part of the premises described in this order and all rights, and interests pertaining to the same and the operation thereof. Also, any town or county roads, and this order is made subject to such licenses relating to Gunners Exchange Pond, as may have been granted by the Commission on Waterways and Public Land or its predecessors, if the premises included in this order are affected by said licenses. (Emphasis added)

3. Both the Bartlett and Guild deeds bound the plaintiff's land as follows:

NORTHEAST NORTH and NORTHWEST by said (Gunners Exchange )Pond;

WEST by land now or late of the Commonwealth of Massachusetts;

SOUTH by land now or late of Caroline F. Fullam; and

EAST by land of owners unknown.

4. Neither deed has any reference to a road, and it is unclear where the travelled way is located on the ground in relationship to the common boundary between land of the Commonwealth and that of the plaintiff. (See Exhibit No. 10 and Chalk B).

5. One of the access roads through the State Forest runs from Long Pond Road southerly and is known as College Pond Road without the Forest and either College Pond Road or Snake Hill Road within it. A segment of the latter crosses the plaintiff's land, and for purposes of this decision is characterized as being within the State Forest since the road to the north and south is.

6. The plaintiff and her predecessors in title have always reached the locus by using said road. The Commonwealth contends that the plaintiff's land can be reached from Long Pond Road and Gunner's Exchange Road by following a woods road or cart path across land of two strangers (see Exhibits Nos. 9, 10 and 18), but it appears that the plaintiff has no record right of way to use the woods road. The land immediately to the east, formerly of Reed, has been acquired by the Nature Conservancy, a national organization sympathetic to the defendant Commissioner's environ­ mental concerns and presumably not to the plaintiff's plans for development of the area.

7. A title examiner was unable to find any easement of record appurtenant to the plaintiff's land which afforded access to it either by use of College Pond Road or Snake Hill Road or otherwise.

8. Other than the woods road referred to in paragraph 6 the plaintiff's land can only be reached by traveling within the State Forest, and the plaintiff testified this was the route used by her family when she was taken to locus as a child in 1923 or 1924 and ever after.

9. There is no structure on the plaintiff's land, and heretofore the taxes have been minimal. A substantial increase thereof led the plaintiff to place the property on the market, and it is now under agreement to a local developer. A proposed subdivision is shown on Exhibit No. 10.

10. The area in question also is alleged to be the natural habitat of the red bellied turtle, which was recently declared an endangered species by the United States Department of the Interior. [Note 3]

11. The nearest electricity and telephone service to the plaintiff's land is approximately 3000 feet distant and is located outside the State Forest. To bring the service to locus would require crossing the land of the Commonwealth if the road within which the poles or conduits would be placed is deemed within the area taken in 1936.

12. The plaintiff has unsuccessfully attempted to obtain an easement from the defendant Commissioner and has caused legislation to be introduced in the General Court authorizing its execution (Exhibit No. 6) which the department opposed. It admits that it is attempting to acquire land privately owned within the Myles Standish State Forest (Exhibit No. 7). Vandalism has led to the institution of a policy which will result in manned gates at the commonly used entrances to the State Forest and a locked gate at the entrance used by the plaintiff with keys furnished to local police and fire departments. At the trial it was agreed to make a key available to the plaintiff if the policy is implemented. (Exhibit No. 12).

13. As homes have been built on College Pond Road, the Town of Plymouth has begun to maintain the segment without the State Forest in passable condition including grading, the cutting of brush along the sidelines and perhaps, the placement of fill. It is viewed by the Selectmen not as a public way but as a private way open to the public. The town does no work on the portion within the Forest which is maintained by the state. It was paved by the Commonwealth in 1959, and this appears to have been the only time it has been surfaced. The annual type of maintenance such as brush cutting is done. It is about 15 to 18 feet wide. It is not plowed in the winter, and it then forms part of the recreational trail system of the Commonwealth for the use of snowmobiles and the like.

14. The only evidence as to the actual use of College Pond Road came from the plaintiff and a retired Plymouth contractor who testified as to its use by members of the public during the years from 1923 to 1936. Albeit automobile traffic then generally was much less than at present, the use made seemed to encompass that to be expected in a nonurban area during those years.

The dispute between the parties centers first on the nature of the road, whether it is a public town way specifically excluded from the taking by its very language or a private way taken by the Commonwealth as part of the State Forest. The plaintiff did not claim that College Pond Road [Note 4] was a county road so its exclusion from the taking rests on establishing it as a "town road." I initially reject the plaintiff's contention that by excluding such roads the taking authority necessarily must have meant College Pond Road, whatever its status, as it was the sole way within the North-East Addition. If this were what the Commonwealth intended, the order of taking could easily have been so drafted. Rather the phrase appears to be standard boilerplate. I turn then to a consideration of the status of the road in 1936. The Appeals Court recently has restated the three ways of proving a road is public:

(1) a laying out by public authority in the manner prescribed by statute (see G. L. c. 82, §§1-32); (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal (see Longley v. Worcester, 304 Mass. at 587-589; Uliasz v. Gillette, 357 Mass. at 104), coupled with an express or implied acceptance by the public.

Fenn v. Middleborough, Mass. App. Ct. (1979). [Note 5] There was no evidence that College Pond Road had been laid out by public authority; indeed the evidence was to the contrary. Nor was there any evidence that the way had been dedicated to public use and accepted as such prior to 1846. If College Pond Road were public in 1936 then, it would only have become such by prescription. As was said in Bullukian v. Franklin, 248 Mass. 151 , 155 (1924)

It is plain that it would be difficult to ascertain whether the person travelling on the way was doing so as a mere traveller under a claim of right, or was one who used it at the invitation or with the permission of the owners.

Not only is evidence that the road was used by the public under a claim of right missing from our case, there also was no evidence that the road had been used for the twenty years necessary to establish a prescriptive right. G. L. c. 187, §2. The only testimony as to use commenced with the year 1923, and thus the twenty years would not have run at the effective date of the order of taking. [Note 6] For the way to be a town road excluded from the 1936 taking, the plaintiff would have had to establish its use by the public since 1916. I therefore find and rule that College Pond Road was not a public town road in 1936 and that therefore it, where it crossed land included within the taking, also was taken in fee. To the extent that it crossed land such as that claimed by the plaintiff and not included within the taking the language of the taking is clear that the right to use it was taken.

The plaintiff argues that even if College Pond Road were a private way in 1936, she still has the right to use it for the installation of utilities by virtue of the provisions of G. L. c. 187, § 5. The constitutionality of a retrospective application of this statute recently was upheld by the Supreme Judicial Court in Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., Mass. (1980). [Note 7] The statute in effect construes a grant of a right of way by deed as encompassing also the right under certain circumstances to install appurtenances necessary for the transmission of gas, electricity and telephone service. The Commonwealth points to the failure of the plaintiff to show an appurtenant right given by deed to use College Pond Road. It well may be that the statute will be interpreted broadly to include at the very least easements acquired by deed but through application of the doctrines of implication and necessity, if not by prescription; it also seems possible that the common law incidents of a right of way may be judicially reconstrued. We need not reach these questions, however, in the present case since there are other controlling considerations. It has long been

the policy of the Commonwealth ... to add to the common law inviolability of parks express prohibition against encroachment .... The firmly settled and frequently declared policy of the legislature has been to preserve public parks free from instrusion of every kind which would interfere to any degree with their complete use for this public end.

Higginson v. Treasurer and School House Commissioner of Boston, 212 Mass. 583 , 591-92 (1912); accord Robbins v. Department of Public Works, 355 Mass. 328 , 330 (1969). This has been buttressed by Article of Amendment 49 of the Massachusetts Constitution which provides that:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

... Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two-thirds vote, taken by yeas and nays, of each branch of the general court.

Since I have held that College Pond Road was included within the taking, a possible construction of Amendment 49 would bar the installation of utilities to serve a private person rather than the facilities of the State Forest. In Abbott v. Commissioners of Dukes County, 357 Mass. 784 (1970)the Supreme Judicial Court held that neither G. L. c. 132, §34A nor G. L. c. 21, §4A was explicit enough to permit the extension of an airport runway in a state forest. A utility easement may not be as inconsistent a use since G. L. c. 132, §34A provides "the commissioner may also grant over, across or under any such lands such locations as shall be found by order of the department of public utilities after public hearing to be required by public necessity or convenience for telephone, telegraph or electric light or power transmission lines, or pipe lines for natural gas, and as in his judgment are necessary and will serve the public interest ...." Nonetheless on the facts here and the plain meaning of the words used in section 34A I find and hold that Amendment 49 is controlling and requires the approval of two-thirds vote of each branch of the General Court before the Commissioner can grant to the plaintiff the relief she seeks, at least absent any such order from the Department of Public Utilities.

There remains one question to be considered. The exigencies of the eighties have required the imposition of safeguards to control access to the State Forest. It would be premature for this court which has not been requested to decide the question and which in any event has no jurisdiction in eminent domain proceedings to express any view relating to the plaintiff's rights, if any, in the circumstances presented by this case.

Judgment accordingly.