CHARLES C. STOVER, III and KATHARINE S. STOVER vs. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION.

Plaintiffs filed their unverified Complaint on June 16, 2011, pursuant to G. L. c. 231A, seeking a declaratory judgment that Defendant had no right, title or interest in the ½ portion of a former railroad bed (the “Railroad ROW”) of the Newton Lower Falls Branch Railroad (the “Railroad”) adjacent to property owned by Plaintiffs. On June 28, 2011, Defendant filed its Answer. A case management conference was held on August 10, 2011. Defendant filed its Motion for Judgment on the Pleadings on January 20, 2012, arguing that this court did not have jurisdiction in this case under the doctrine of sovereign immunity. Plaintiffs filed their Opposition on February 8, 2012. At a status conference held on October 19, 2012, the parties asked this court to postpone discovery (originally deadline of October 16, 2012) until the sovereign immunity issue was resolved. [Note 1] A hearing on the motion was held on March 14, 2013, at which time the parties agreed that this court would not rule on the motion, and this court allowed Plaintiffs to file an amendment to their Complaint seeking to quiet title to the Railroad ROW. Plaintiffs filed an Amended Complaint on April 16, 2013, seeking to quiet title to the Railroad ROW pursuant to G. L. c. 240, § 6, and attaching a title opinion of Kathleen O’Donnell (the “Title Opinion”) as an exhibit. On April 30, 2013, Defendant filed its Answer, together with Motion to Strike the Title Opinion. Plaintiffs filed an Opposition to the Motion to Strike on May 7, 2013, together with their Motion to Compel Defendant’s Admission of Certain Allegations. On May 23, 2013, Defendant filed its Opposition to Plaintiffs’ Motion to Compel. By Order dated May 30, 2013, this court DENIED both Motions. On June 19, 2013, Defendant filed its Motion for Judgment on the Pleadings, together with supporting memorandum and Appendix. On July 5, 2013, Plaintiffs filed their Opposition, together with supporting memorandum and Appendix. A hearing was held on the motion on September 23, 2013, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Plaintiffs own property located at 72 St. Mary’s Street in Newton, MA (“Plaintiff Property”), as a result of a deed from Louise M. Kawada dated October 28, 1998, and recorded with the Middlesex South District Registry of Deeds (the “Registry”) at Book 29282, Page 276. Plaintiff Property is shown as Lot C and Lot 29 on plan titled “Subdivision of Land in Newton, Mass” dated January 7, 1937, by Everett M. Brooks, C.E., and recorded with the Registry at Book 6100, Page 169.

2. The Railroad formerly had an interest in property adjacent to Plaintiff Property (the Railroad ROW). By release deed dated October 28, 1982, and recorded with the Registry at Book 15359, Page 464 (the “Penn Deed”), the Penn Central Corporation released all of its interest in the Railroad ROW to Defendant. The Penn Deed provided that “should any claim adverse to the title hereby granted and released be asserted and/or proved, no recourse shall be had against the Grantor.” (the “No Recourse Provision”).

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Defendant argues that Plaintiffs’ claim is barred by the doctrine of sovereign immunity. Plaintiffs challenge the doctrine of sovereign immunity on both procedural and substantive grounds. The parties agreed to limit the issues in this hearing to the sole issue of sovereign immunity.

I. Procedural Challenge to Sovereign Immunity:

Plaintiffs argue that a Judgment on the Pleadings is not the proper process to claim sovereign immunity. In this regard, Plaintiffs contend that sovereign immunity is a threshold jurisdictional issue and as such the proper means of asserting this defense is through a 12(b)(6) motion to dismiss rather than a Judgment on the Pleadings. Plaintiffs claim that the Commonwealth cannot assert a defense based on subject matter jurisdiction, i.e. sovereign immunity, because the Commonwealth filed an Answer. Subject matter jurisdiction, however, can be raised at any time. See Ropt Ltd. P’ship v. Katin, 431 Mass. 601 , 607 (2000). Plaintiffs also contend that the Commonwealth’s Motion for Judgment on the Pleadings does not conform to Land Court Rule 4 (“Rule 4”) because it does not contain a statement of material facts. The Motion for Judgment on the Pleadings merely raises a threshold jurisdictional issue that is not premised on any relevant facts. The issue is whether sovereign immunity applies to actions pursuant to G.L. c. 240, §§ 6-10. This exercise requires an analysis of the relevant statutory law. As such, this court shall rule on the issue of sovereign immunity. [Note 2]

II. Substantive Challenge to Sovereign Immunity:

Plaintiffs argue that Defendant has no sovereign immunity for obligations assumed through contracts, that there was an implied waiver of immunity because of the Penn Deed, because there is no immunity in trespass actions, and because there is no sovereign immunity under the try title statute. Some of Plaintiffs’ allegations are based on facts which are not part of the motion record.

A. The Penn Deed:

Plaintiffs argue that the terms of the Penn Deed relative to the No Recourse Provision proscribe Defendant’s use of the sovereign immunity defense for several reasons. First, Plaintiffs argue that the Commonwealth has no sovereign immunity for obligations assumed through contracts, and argue that the Commonwealth is the only entity with responsibility for title under the No Recourse Provision. This court interprets the No Recourse Provision differently. This provision of the Penn Deed is an attempt to exonerate Penn from any claim against it by the Commonwealth. The No Recourse Provision states that the Commonwealth has no recourse against Penn if any party brings an action “asserting or proving” an adverse claim to the ROW. This provision is not a waiver of sovereign immunity by the Commonwealth, it simply negates any warranty or covenant of title between Penn and the Commonwealth. Any action against the Commonwealth may be taken pursuant to the relevant statutory law, as discussed, infra.

B. Trespass:

Plaintiffs claim that the doctrine of sovereign immunity does not apply in actions to remedy an alleged trespass by the Commonwealth. Plaintiffs claim that certain activities undertaken by the Commonwealth amount to a trespass on Plaintiff Property. This appears to be an issue of disputed material fact. Moreover, this court can rule on the issue of sovereign immunity based upon an interpretation of the quiet title statute. See infra. This court does not have enough information to conclude whether the Commonwealth is in fact trespassing on Plaintiff Property. This issue shall be resolved on the merits of this case.

C. Sovereign Immunity under Quiet Title:

I. The Quiet Title Statute and Prior Jurisprudence:

The first complaint in this action was brought under the declaratory judgment statute (G. L.c. 231A). At the first Judgment on the Pleadings hearing, I advised Plaintiffs that there was case precedent relative to the Commonwealth’s sovereign immunity under the declaratory judgment statute, [Note 3] and Plaintiffs sought to amend their complaint, which this court allowed with the consent of Defendant. Plaintiffs added a new count under G. L. c. 240, §§ 6-10 (the quiet title statute). There have been at least three decisions issued by the Land Court and the Superior Court, all consistent with one another, and each judge finding that the doctrine of sovereign immunity does not apply to an action pursuant to G.L. c. 240, §§ 6-10. [Note 4] Notwithstanding the foregoing, counsel for the Commonwealth has once again brought a Motion to Dismiss on grounds that the Commonwealth is immune from being a named Defendant in an action to quiet title. In essence, the Commonwealth has asked this court to reconsider its Decision in Polchlopek v. Commonwealth, 18 LCR 274 (2009), relative to sovereign immunity even though two other judges have subsequently agreed with this that decision. [Note 5]

“Sovereign immunity bars a private action against a State in its own courts absent consent by the Legislature or abrogation of sovereignty by Congress acting under its Fourteenth Amendment powers. Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them. When that consent is granted, [the Commonwealth] can be impleaded only in the manner and to the extent expressed in the statute.” Polchlopek, supra, citing Lopes v. Commonwealth, 442 Mass. 170 , 175-176 (2004).

As discussed in Polchlopek, G.L. c. 240, §§ 1-5 (the try title statute) sets forth a procedure whereby a party can institute a law suit and require an adverse claimant to appear and carry the burden to prove its title, provided that the petitioner has met certain jurisdictional thresholds. G.L. c. 240, § 5, states that “the four proceeding sections shall not apply to any property, right, title or interest, of the Commonwealth.” Like in Polchlopek, Plaintiffs in the case at bar have filed an Amended Complaint under G.L. c. 240, §§ 6-10, which obviously does not proceed G.L. c. 240, § 5. As reasoned in Polchlopek, the lack of any language expressly exempting the Commonwealth from suit under G.L. c. 240, §§ 6-10 necessarily implies that sovereign immunity does not apply to an action to quit title under G.L. c. 240, § 6. As discussed, infra, the Commonwealth contends that the historical context of the quiet title statute proves otherwise. [Note 6]

ii. Personal Jurisdiction over the Commonwealth:

The Commonwealth also argues that G.L. c. 240, § 6, does not waive sovereign immunity because it is an in rem action against property owners who are “persons unascertained, not in being, unknown or out of the commonwealth, or who cannot be actually served with process and made personally amendable to the judgment of the court.” In this regard, the Commonwealth contends that it is not a person, thus the statute does not apply to it. As noted in Polchlopek, and Halchak, G.L. c. 40A, § 10, states that “this and the four preceding sections shall not prevent the court from also exercising jurisdiction in personam against all defendants actually served with process who are personally amenable to judgments.” G.L. c. 240, § 10. The Commonwealth was served with process in the case at bar and is thus subject to the personal jurisdiction of the Land Court. iii. Historical Context and the Torrens System:

As noted, supra, the Commonwealth is immune from suit in an action to try title pursuant to G.L. c. 240, § 5. G.L. c. 240, §§ 1-5 was enacted by the Legislature by Chapter 340 of the Acts of 1893. When first enacted in 1893, the try title statute contained an express grant of immunity to the Commonwealth. Indeed it is the same express grant of immunity that currently exists in G.L. c. 240, § 5. In Chapter 522 of the Acts of 1897, the Legislature adopted an action to quiet title in equity, which is referred to herein as the quiet title statute. Unlike Chapter 340 of the Acts of 1893, this new action to quiet title in equity promulgated by the Legislature in 1897 did not contain an express grant of immunity to the Commonwealth. As such, it certainly appears that the Legislature did not intend to grant immunity for an action against the Commonwealth to quiet title in equity. If the Legislature had intended to bar actions against the Commonwealth in the quiet title section, it could easily have done so. This court shall not read a grant of immunity into the equitable quiet title statute when the Legislature did not insert such language. See General Electric Co. v. Department of Environmental Protection, 429 Mass. 798 , 803 (1999). Even though an action to try title and an action to quiet title in equity have been combined under one chapter (G.L. c. 240 §§ 1-10), there is no express provision granting immunity to the Commonwealth for an action to quiet title. G.L. c. 240, § 5, expressly states that the Commonwealth is immune from actions pursuant to G.L. c. 240, §§ 1-4. This protection does not extent to actions pursuant to G.L. c. 240, §§ 6-10.

The Commonwealth also argues Chapter 562 of the Acts of 1898, entitled an Act to Provide for Registering and Confirming Titles to Land, which adopted the Torrens System of Land Registration, is informative on this issue. This statute is now codified at G.L. c. 185 and governs proceedings to confirm and register title to land. The Commonwealth contends that a registration proceeding is the only means for challenging the Commonwealth’s adverse claim to land. The adoption of the Torrens System expressly provided that “...if it otherwise appears from the complaint or proceedings that the commonwealth may have a claim adverse to that of the plaintiff, notice shall be given in the same manner to the attorney general.” As such, there is no question that a petitioner can assert claims against the Commonwealth in a registration proceeding. A land registration proceeding is not, however, the exclusive means to challenge the Commonwealth’s adverse title to land.

The Torrens System and an action to quiet title in equity were adopted in the same Legislative session and four years after the try title statute was first adopted. The Commonwealth points out that the land registration proceeding expressly contained a section discussing notice to the Commonwealth and the equitable quiet title action does not. The Commonwealth contends that this distinction proves that sovereign immunity was not waived for actions to quiet title in equity. The Commonwealth cites the doctrine of in pari materia to support this argument, i.e. that statutes adopted at the same time should be interpreted in light of each other since they have a common purpose for comparable events or items. See Commonwealth v. King, 202 Mass. 379 , 388 (1909). If this doctrine shall be applied, it is directly to the contrary of the Commonwealth’s assertion. The adoption of the Torrens System allowed for suit against the Commonwealth. The adoption of an action to quiet title in equity contains no reservation of sovereign immunity, unlike actions to try title adopted years earlier. Considering these facts, it appears that the Legislature intended to make the Commonwealth amenable to suit under both statutes as a matter of policy.

Finally, the Torrens System was adopted in order to “simplify land transfer and to provide bona fide purchasers with conclusiveness of title.” Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34 , 43 (1979). The Torrens System was not adopted to make the Commonwealth amenable, for the first time ever, to a lawsuit challenging its title to land. Moreover, as noted in his Inaugural Address discussing the Torrens System, His Excellency William Russell (the former Governor of Massachusetts) touted the benefits of the Torrens System as a means for “safer, cheaper, and easier” land transfers. Registration proceedings, however, can be quite expensive and complicated matters. They involve the appointment of a Land Court title examiner, the creation of several plans of land, and notice to many parties. Plaintiffs do not wish to go through the burden of the land registration process. Utilizing equity, fairness, and history to interpret the relevant statutes, this court does not think the Legislature intended that a land owner had to go through the registration process in order to challenge the Commonwealth’s adverse claim to land. An action to quiet title in equity is a much less cumbersome process for accomplishing the same objective.

Based on the foregoing, I find that the doctrine of sovereign immunity does not apply to actions to quiet title in equity pursuant to G.L. c. 240, §§ 6-10.

As a result of the foregoing, I DENY Defendant’s Motion for Judgment on the Pleadings.

The parties shall attend a status conference on December 10, 2013, at 10:30 A.M. to determine how to proceed with the remainder of the litigation. Judgment shall enter after all issues in this matter have been resolved.