ELIZABETH CAPORALE vs. BOARD OF SELECTMEN OF THE TOWN OF BILLERICA.

Plaintiff seeks to quiet title to a parcel of land ("Locus") on Middlesex Turnpike and Nutting Lake in the town of Billerica (the "Town") which she acquired by mortgage foreclosure. Defendants deny Plaintiff's title, saying that Locus was earlier taken by the Town by eminent domain.

Both parties moved for Summary Judgment. Counsel argued the motions on April 23, 1992 and submitted memoranda. At the hearing, Counsel stipulated the admissibility of all the Exhibits attached to the Complaint (and references here to Exhibits are to the Exhibits to the Complaint) and stipulated that there is no genuine issue as to any material facts in this action.

I find and rule as follows:

1. By deed (Exhibit B) dated November 22, 1968 and recorded with Middlesex County Northern District Registry of Deeds (all recording references in this Decision are to that Registry) at Book 1867, Page 752, Plaintiff's predecessors in title, Leonard Caporale and Anthony Caporale ("Caporales"), as trustees, acquired a parcel of land described as Lot 4 on a plan recorded in Plan Book 31 as Plan 46 (Exhibit C) (but with some exceptions for earlier deeds out, not relevant here). Lot 4 is shown on that plan as containing 51.25 acres. Locus is a small part of Lot 4, at its northwesterly corner, being Lot 91 on Plate 88 of the Assessor's Maps.

2. By an Order of Taking dated April 14, 1969 and recorded at Book 1884, Page 275 (Exhibit E), the Town took a part of Lot 4 for a pumping station and sewage system. The area taken is described as a 13,460 square foot parcel being part of Parcel 91 on Assessor's Plate 88; it is shown on a plan recorded at Plan Book M-691 (Exhibit F). Exhibits E and F are the "1969 Taking". The 1969 Taking thus left the remainder of the original Parcel 91 in the Caporales; that remainder has apparently been called Parcel 91 since the 1969 Taking and that remainder is "Locus".

3. The warrant for the Billerica annual town meeting was published in March 1970. Article 27 of the warrant (Exhibit G) was a vote to authorize the Selectmen to take twenty-two acres owned by the Caporales "for recreation and other municipal purposes". The area authorized to be taken was described as Parcel 100 on Assessor's Plate 88. Parcel 100 abuts Parcel 91 to the southeast, and is shown in part on Exhibit F.

4. At an adjourned session of the town meeting on April 7, 1970, Article 27 was amended (also Exhibit G) to add Locus as part of the taking; to strike the words "for recreation and other municipal purposes"; and to add the words "for conservation purposes".

5. In May 1970, an Order of Taking and a Taking Plan were recorded at Book 1921, Page 718. (Exhibits H and I), (together, the "1970 Taking"). The taking was "for conservation purposes" and the area taken is described as twenty-two acres shown on an April 1970 plan (Exhibit I). There is a boundary description which includes land to the northwest of the 13,460 square foot parcel as well as much more land to its southeast. There is expressly excluded from the taking the area taken under the 1969 Taking, which excluded area is shown on Exhibit I as well, as "Town Billerica Sewer Taking".

6. By instrument dated December 1, 1970 and recorded at Book 1943, Page 143 (exhibit J), the Caporales mortgaged to Plaintiff "all of the land, together with the buildings thereon situated, located in Middlesex County owned by the mortgagors by deeds duly recorded".

7. By an Order of Taking dated November 15, 1972 and recorded at Book 2040, Page 201 (Exhibit K), the Town made a taking for 1970 and 1971 taxes assessed to the Caporales. The land taken is described as "Land on Middlesex Turnpike. Recorded in Middlesex North District Registry of Deeds. For further description see Deed in Registry Book 1867, Page 752. N.E. of Middlesex Turnpike, S.W. of Nutting Lake 41815'". A low value affidavit (Exhibit L) including Locus was recorded at Book 2166, Page 611.

8. An instrument of redemption dated December 12, 1975 and recorded at Book 2177, Page 54 (Exhibit M) was issued by the then Treasurer of the Town to the Caporales. This instrument acknowledges satisfaction of the tax title account for the years through 1975.

9. By foreclosure deed dated July 15, 1989, and recorded at Book 5103, Page 162 (Exhibit N), Plaintiff foreclosed her mortgage. However, the foreclosure deed, although stating that it conveyed "the premises conveyed by said mortgage", referred to an attached Exhibit A, which described Lot 4 minus various parcels deeded out but also minus the parcels taken by the Town under the 1969 Taking and the 1970 Taking.

10. Since 1975, the Town has refused to recognize Plaintiff's title to Locus, on the ground that the Town took Locus by the 1970 Taking.

11. The parties stipulate that the Caporales brought a damage action for the 1970 Taking. A trial was held in February, 1971, and judgment was entered in favor of the Caporales. However, there is a dispute as to whether the damages included damages for Lot 91.

13. Plaintiff contends that the amendment of Article 27 (mentioned in Paragraph 4) was defective because it added Lot 91 and changed the purposes of the taking. Plaintiff admits that she has no cause of action if the amendment is proper.

14. Defendants admit that, if the 1970 Order did not include Lot 91, Plaintiff has title to Locus.

15. The parties disagree as to the relevance of the 1972 tax taking and the following redemption. Plaintiff contends that they are inconsistent with Defendants' position that the Town owned Locus by virtue of the 1970 taking. Plaintiff contends that they constitute either Defendants' admission to Plaintiff's title or a waiver of the Town's title. Defendants contend that, although the Town may have made a mistake as to the tax taking, the mistake did not undo the 1970 Taking.

16. The parties also disagree as to the interpretation of G.L. c.79 §16. Defendants claim that, even if the 1970 Taking was defective, the issue had to be raised within two years after the 1970 Taking. Plaintiff contends that the 1970 taking was invalid and that the statute does not apply in cases of invalid takings.

17. I find that the 1970 Taking was valid. The article as moved and voted on April 7, 1970, was within the scope of Article 27 as it appeared in the warrant. The addition of the words "and Parcel 91" to the motion, with no amendment of the size of the lot ("22 acres more or less"), served to correct a misnomer of the lot being taken, rather than increasing the amount of property described in the warrant. Article 27 informed the voters that they were being asked to approve the Town acquiring a lot of land, approximately twenty-two acres in size, adjacent to Nutting Lake. The motion at Town Meeting was changed to make the parcels' description on the Board of Assessor's map more accurate, and affected only a small area as compared to Lot 100.

18. Plaintiff does not establish that the changes were beyond what the voters were apprised of by Article 26 as printed in the warrant. "[G.L.c.39, §10 requires] that the subjects to be acted upon must be sufficiently stated in the warrant to apprise voters of the nature of the matters with which the meeting is authorized to deal. It does not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon those subjects." Burlington v. Dunn, 318 Mass. 216 , 219 (1945). Further, the change in the purposes of the taking (from "recreation and other municipal purposes" to "conservation purposes") was not significant enough to impair validity.

19. Alternatively, I find that if there was a problem as to the validity of the 1970 Taking, Plaintiff is barred from raising it, by G. L. c. 79 §16 and §18 and case law relating thereto; see Eldredge v. Board of Selectmen of Brewster, 18 Mass. App. Ct. 502 (1984) and Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 (1981).

20. Plaintiff has not produced any evidence - beyond her Affidavit assertion that she protested the taking as to Locus - that the damages received by the Caporales in 1971 related only to Parcel 100. Whatever the shortcomings of the warrant publication, the 1970 Taking itself clearly included Locus.

21. I am at a loss to explain the Town's assessing of real estate taxes on Locus for the years through 1978, but I do not find that the Town's error in this regard alters the outcome of this action. I note that Plaintiff paid only through 1975 and that the amounts involved are insignificant (the taxes for 1970 and 1971 combined were $68.60).

22. I note another problem with Plaintiff's case. The foreclosure deed under which Plaintiff claims specifically excludes the areas covered by the 1969 and 1970 Takings. Neither party has addressed that point, so I do not rely on it.

23. Plaintiff does not have title to Locus.

Judgment accordingly