BEDFORD CONSTRUCTION CO., INC. vs. MORTIMER B. ZUCKERMAN and EDWARD A. LINDE, as TRUSTEES OF THE ELANDZEE TRUST, THE TOWN OF LEXINGTON and BOSTON & MAINE CORPORATION.

Plaintiff seeks a determination that it has a right of way over lands of one or more or all defendants. A motion of the Boston & Maine Corporation to dismiss was allowed on May 2, 1988. Plaintiff has moved for summary judgement against the Town of Lexington (the "Town"), which in turn has moved for summary judgement against plaintiff. Both parties submitted memoranda and there are in the record affidavits from the following: plaintiff's predecessors in title, Florilla B. Deming and G. William Bean (two affidavits), Francis X. Fields (Lexington Town Engineer) and Barbara J. Valliere (one of the Town's attorneys), together with various affidavits relating to plaintiff's case against the defendant Trustees, not at issue here. Counsel argued the motions on February 20, 1991. Counsel in argument stipulated that there is no genuine issue as to any material facts. On the basis of the foregoing and the pleadings, I find and rule that there is no genuine issue as to any material facts and further find and rule for the Town, as follows:

1. Plaintiff is a Massachusetts corporation with a principal place of business at 1380 Main Street, Springfield, Massachusetts.

2. The Town is a duly existing municipal corporation with its principal office located at 1625 Massachusetts Avenue, Lexington, Massachusetts.

3. Plaintiff is the owner of certain property ("Locus") on the northwest side of Route 128 off Bedford Street in Lexington, Massachusetts. Locus is the property designated "Ethel F. Bean" on a plan. (the "Plan") entitled "Plan of Land in Lexington, Mass." dated May 26, 1961 by John J. Carroll, Town Engineer, recorded with the Middlesex South District Registry of Deeds (all recording references in this Decision are to that Registry) as Plan No. 109 (A of 2) of 1962 in Book 9974, Page 503.

4. The Town is the owner of land adjacent to Locus. The Town's land is designated on the Plan as "Area 67 1\2 Acres" and "Area 25 1\2 Acres".

5. Plaintiff purchased Locus on July 22, 1985 from G. William Bean and Florilla B. Deming, heirs of Ethel F. Bean, by deed recorded in Book 16306, Page 102.

6. Ethel F. Bean acquired Locus plus other land consisting of approximately 27 acres in 1915 by deed recorded in Book 4002, Page 354 (hereinafter sometimes referred to as "the Bean property").

7. In 1950, the Department of Public Works of the Commonwealth (the "Department") took by eminent domain approximately 6.47 acres of the Bean property for the establishment of Route 128 and related access ramps. The taking is recorded in Book 7545, Page 291 and Book 7551, Page 202.

8. In 1953, the Town took by eminent domain an easement for a sewer from approximately 250 feet inside Locus and then along Route 128 to land of the Boston & Maine Railroad and thence northwesterly for about 2,400 feet to Hartwell Avenue alongside said land of the Boston & Maine Railroad. That taking is recorded in Book 9511, Page 283. The easement is designated on the Plan as "Sewer Easement".

9. In 1960, the Department by a taking dated August 30, 1960 and recorded in Book 9707, Page 376 widened and altered the location of the Route 128. That taking took an additional 2.18 acres from the Bean property.

10. In 1962, the Town took in fee simple (the "1962 Taking") for "refuse disposal sites and for sewer, water, drain and street purposes" the aforesaid lands designated "Area 25 1\2 Acres" and "Area 67 1\2 Acres". The 1962 Taking was recorded in Book 9974, Page 500.

11. No portion of Locus was included in the 1962 Taking. The lands taken were taken "subject to the sewer easements taken by the Town of Lexington by order dated November 20, 1959 and recorded in said Deeds, Book 9511, Page 283."

12. As a result of these takings, Locus now has no direct access to a public way; it is bounded on the south and east by Route 128, (a limited access highway), on the west by the Town's land and on the north by land of the defendant Trustees.

13. A plan (the "1898 Plan") entitled "Plan of House Lots at Lexington Heights Owned by M. C. Meagher, July 1892, E.A.W. Hammatt, C.E." was recorded in Plan Book 77 at Plan 24. That showed a number of streets, among which are Brook Street, Pine Street and Valley Road (collectively, the "Three Streets"). Brook and Pine Streets have not been constructed; they are "paper" streets. Valley Road did exist as a private way, but did not connect with Locus. Plaintiff claims that it has the right to use the Three Streets to reach Hartwell Avenue, a public street. Apparently the Three Streets do not extend all the way to Hartwell Avenue and plaintiff's legal rights to bridge the gap are not clear, but that is not in issue in this action.

14. There is substantial question whether an easement benefitting Locus ever existed over the Three Streets. Plaintiff claims that such an easement arose because Locus was shown on the 1898 Plan and on the 1960 taking plan. Plaintiff also points to the fact that numerous lots on the 1898 Plan were deeded out, requiring access to the streets shown on the 1898 Plan; further that one group of lots on the 1898 Plan was registered under G.L. c. 185 by a plan which shows the Three Streets as abutting the lot in question. Plaintiff also argues that an easement by necessity was created by virtue of the takings for Route 128, which cut off Locus from Bedford Street.

15. Arguing to the contrary is the fact that Locus is shown on the 1898 Plan as property abutting the subdivision shown on the plan and separated from Brook Street (which it immediately abuts) by a stone wall; Locus is not part of that subdivision. Also it appears that the access of Locus at the time was not to Hartwell Avenue but to Bedford Street, in the opposite direction from the subdivision shown on the 1898 Plan. Reference to the registered land within the 1898 subdivision merely establishes that the lots within the subdivision (as opposed to Locus which was not within it) had rights over the Three Streets. As to the effect of the Route 128 takings, it is just as aguable that if the owner of Locus was ever to recover for a deprivation of access to a public way, it was in the context of the Route 128 takings, not the Town's later takings. Finally, it may well be that the entire street network shown on the 1892 plan was designed to connect with public ways to the south or east and not to Hartwell Avenue to the north.

17. Whether plaintiff's predecessor in fact had an easement over the Three Streets cannot be resolved on summary judgement. If the question of the existence of an easement over the Three Streets were determinative, this action should go to trial. However, even if it be assumed that Locus did have such an easement, plaintiff, for the reasons set forth below, cannot prevail.

18. Assuming, again, that plaintiff had an easement over the Three Streets, the 1962 Taking extinguished the easement. The Town cites no Massachusetts cases expressly to that point, nor has the Court found any. However, I do not question the result. It would be anomalous if, having taken fee title, as the Town did here, the Town's use of the taken property was still subject to a lesser interest (an easement).

19. Restatement of Property § 507 supports that conclusion:

An easement is extinguished by a taking by eminent domain of the servient tenement, or of an interest therein, to the extent to which the taking permits a use inconsistent with the continuance of the use authorized by the easement.

To the same effect is § 9.13, Bruce & Ely, The Law of Easements and Licenses In Land: "An easement is terminated when a public authority condemns the fee to the servient estate for a purpose that conflicts with the continued existence of the servitude" (p. 9-70).

20. Plaintiff points to the fact that the 1962 Taking was for "refuse disposal sites and for sewer, water, drain and street purposes" (emphasis supplied). "Street purposes", argues plaintiff, recognized the continued existence of the Three Streets. I disagree. That the Town can use the taken land for streets, if it should so choose, does not mean that private parties may. "Street purposes" would enable the Town to lay out public ways in the taken land but, until that happened, private parties would not have street rights.

21. What of the suggestion in these authorities that the easement is extinguished "to the extent to which the taking permits a use inconsistent with the continuance of the use authorized by the easement?"

The comments to the Restatement (Comment e, taking of easement for highway need not interfere with easement to conduct mining) suggest that these considerations apply most aptly in the case of a taking of an easement as opposed to a fee taking. See also Boston Chamber of Commerce & Others v. City of Boston, 195 Mass. 338 (1907), affirmed at 217 U.S. 189 (1910) - holder of easement of way, light and air receives no damages from a taking of a street easement over the same area.

22. Further, we have a taking here in which at least one of the purposes, "refuse disposal", is inconsistent with use of the Three Streets as streets. The authorities just cited are clear that it is not up to the taking authority to accommodate to the pre-existing easement; it is not up to the Town to conduct its refuse disposal so as to leave the Three Streets available. It is enough that one purpose of the taking may be frustrated by exercise of the easement. That being the case, the easement is extinguished.

23. Plaintiff points to language in the 1959 sewer easement reserving to the affected landowners their rights in their lands insofar as not inconsistent with the sewer easement and then points to the language in the 1962 Taking quoted at paragraph 11 above. The language in the sewer easement itself merely states the law and does not afford additional rights. The language at paragraph 11 simply leaves the Town's sewer in place. None of that works to exclude the Three Streets from the 1962 Taking.

24. Plaintiff argues that the Town must be assumed to have intended that the 1962 Taking was to leave plaintiff's easement intact. "Otherwise the town would have unconstitutionally taken plaintiff's rights to access without proper notice, without a due process taking against plaintiff, and without compensation to plaintiff. Curtis v. Redevelopment Authority of Philadelphia, 393 A.2d 377, 380-381 (Pa. 1976)."

25. Had the Town intended to leave plaintiff's easement, it could easily have so provided. However the 1962 Taking was in fee simple, without any reservation benefitting Locus. Further, there is no necessity to presume an intent. If there is any due process deficiency (and I suggest none), it would go to the deprivation of a damage remedy, not to the validity of the taking. That is the exact point of the Curtis case - the plaintiff there tried to revive his easement because of a want of notice, but the Supreme Court of Pennsylvania, citing Restatement of Prooerty 507, relegated him to damages.

26. Plaintiff alleges that no notice of the 1962 Taking was given by the Town to Ethel F. Bean, plaintiff's predecessor in title, and that as a result, the taking was invalid. The Town cites Merrymount Company v. Metropolitan District Commission, 272 Mass. 457 for the proposition that lack of notice does not invalidate a taking.

27. The holding as to notice in the Merrymount decision was based on G.L. c. 79, § 8, as it then existed, which provided: "Failure to give notice shall not affect the validity of the proceedings, or the time within which a petition for damages may be filed, except as provided by section sixteen." Section 8 was repealed by St. 1964, c. 579. The companion provision to section 8 is the present section 7C, which requires notice to every peson entitled to damages. Section 7C does not speak as to possible invalidity of a taking. However, the present section l0A provides in relevant part: ". . . noncompliance with said sections ... seven C ... shall not affect the validity of the proceedings under this chapter."

28. Merrymount was decided in 1930. A more recent decision reaching the same result is U. S. v. 125.2 Acres of Land, 732 F 2d 239 (1st Cir. 1984). The validity issue, with the same result, was involved in a recent action in this Court, New England Continental Media, Inc. v. Town of Milton, Miscellaneous Case No. 102435.

29. The remedy that would have been available to the holder of an easement over the Three Streets was damages. (G.L. c.79, § 27 et seq provide a mechanism for apportionment of damages among the holders of multiple interests in taken property.) "There is no doubt that, by enacting c. 79, the Legislature meant to fashion an exclusive statutory remedy for takings made thereunder ... nor any doubt that the limitation periods expressed therein were designed to limit the right as well as the remedy." Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 , 673 (Landowners attempt to obtain a declaration as to the validity of a taking 20 years after the fact properly dismissed).

30. The Town also points to G.L. c. 79, § 16:

A petition for the assessment of damages under section fourteen may be filed within three years after the right to such damages has vested; but any person, including every mortgagee of record, whose property has been taken or injured, and who has not received notice under section eight or otherwise of the proceedings whereby he is entitled to damages at least sixty days before the expiration of such three 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. (emphasis added)

31. Plaintiff has not specifically requested damages. However, plaintiff has requested "such other remedy or remedies as required by law or equity" and in the interests of judicial economy, I will address whether plaintiff has a damage remedy.

32. Any damage claim of the plaintiff is barred by G.L. c. 79, § 16, quoted above. From the evidence available for these motions it is not clear when possession was taken. Accordingly, I focus on six months from the receipt of actual notice. Plaintiff asserts that Mrs. Bean, his predecessor, never received notice. Plaintiff's assertion is made only by counsel's memoranda, but the Town, in argument, is willing to assume that Mrs. Bean did not receive notice from the Town. However, the affidavits of Bean and Deming (plaintiff's predecessors in title) are clear that they both knew Locus was landlocked or inaccessible. In addition, both relate discussions with David Barberie, a principal of plaintiff, well before plaintiff acquired Locus, that Locus was landlocked and as to the lack of access. In any event, when plaintiff bought Locus in 1985, it is clear that it had actual notice that the Town's land lay between it and Hartwell Avenue. If there had been a lack of notice, it was cured by 1985.

33. There is no indication that plaintiff ever filed an action for damages under Chapter 79. Plaintiff filed this action on December 10, 1987, well after six months from the time it acquired Locus .

34. The last limitation in Section 16 - "six months after he first suffers actual injury in his property" does not refer to plaintiff's situation; rather, it has effect with respect to injuries or takings under Sections 9 or 10. In any event, plaintiff would first have suffered injury no later than the date of its acquisition of Locus, and therefore it is barred even if that standard were applicable.

35. Plaintiff has suggested there would be constitutional problems if it is barred from any relief in this action without a showing that its predecessor's received notice. The course of the law has indeed been to view with increasing strictness the requirement of adequate notice. But that does not avail plaintiff here. As stated above, if there were a notice problem, it would go only to damages. As to that, Section 16 itself is triggered by receipt of notice. Second, plaintiff took no judicial action for over two years (July 1985 to December 1987) from its acquisition of Locus. Plaintiff knowingly bought into the situation, but even assuming it had rights at the time of acquisition, it is unreasonable to suggest they survive more than two years thereafter.

36. Plaintiff suggests that if its right in the Three Streets were to be extinguished, it would have to be by discontinuance pursuant to G.L. c. 82, § 32A (Abandonment of Municipal Ways). However, that section relates to public ways and even if it extends to public ways established by dedication or prescription, that is not the situation in this action.

37. Whether Locus benefitted from easements over the Three Streets is open to substantial question, but for purposes of this decision, I have assumed it did, as also I have assumed that the Town did not give notice of the 1962 Taking to plaintiff's predecessors. Even given those assumptions, plaintiff cannot prevail against the Town. The 1962 Taking extinguished any easement over the Three Streets and plaintiff is barred from seeking a damage remedy. Plaintiff is left to proceed against the defendant Trustees.

Judgement accordingly.