LIN HUEY CHEN and LAN BO CHEN, as Trustees of THE 181 FOLLEN ROAD TRUST vs. TOWN OF LEXINGTON

Plaintiffs filed their unverified Complaint on March 28, 2012, pursuant to G. L. c. 240, § 1 and G. L. c. 231A, § 1, seeking a try title action and a declaratory judgment relative to the existence of an easement over property located at 181 Follen Road, Lexington (“Plaintiff Property”). Defendant filed its Answer on May 1, 2012. A case management conference was held on June 11, 2012. Plaintiffs filed their Motion for Summary Judgment on September 11, 2012, together with supporting memorandum and Appendix containing Affidavits of Jonathen Bollen, P.L.S., Lin Huey Chen, Luciana Correia, and Matthew Iverson, Esq. On October 11, 2012, Defendant filed its Opposition, together with supporting memorandum and Appendix containing Affidavits of John Livsey, P.E. and Nina L. Pickering-Cook, Esq. Plaintiffs filed their Reply on October 18, 2012. A hearing was held on the motion on October 22, 2012, and the matter was taken under advisement.

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

1. Plaintiffs received a deed of Plaintiff Property dated December 3, 2001, and recorded with the Middlesex County South District Registry of Deeds (the “Registry”) at Book 34484, Page 577. Part of Plaintiff Property is shown as Lot A on plan titled “Land of Arthur H. Parker at Lexington,” dated June 1928, prepared by F. P. Cutter, C.E. and recorded with the Registry in Book 5244, Page 197 (the “1928 Plan”). The balance of Plaintiff Property is shown on plan titled “Plan of Land in Lexington,” dated March 13, 1925, prepared by E. N. Montague, C.E. and recorded with the Registry at the end of Book 4824 (the “1925 Plan”). The 1925 Plan shows the westerly boundary of Plaintiff Property as bounded by a stone wall (the “Stone Wall”), and the northerly bounded by another stone wall. The 1928 Plan shows the northerly boundary of Plaintiff Property as bounded by a stone wall. The Stone Wall still exists today. The deed references both the 1928 Plan and the 1925 Plan.

2. The 1925 Plan shows a drill hole (the “Drill Hole”) at the intersection of the Stone Wall and Follen Road. The Drill Hole still exists today.

3. Lexington Avenue was laid out as a private road by the owners of property (the “Tower Property”) to the west of Plaintiff Property (shown as Ellen M. Tower on the 1925 Plan), as shown on plan dated May 22, 1937, (the “1937 Plan”) which is a subdivision of part of Lot A2 on plan 16684A. [Note 1] [Note 2] Lexington Avenue was a part of the Tower Property. The 1937 Plan shows Lexington Avenue as bounded by a stone wall for its entire easterly boundary, including the Stone Wall.

4. At a meeting of the Board of Selectmen of the Town of Lexington (the “Board”) on February 12, 1962 (the “February 1962 Meeting”), the Board voted: that public necessity and convenience require that said Lexington Avenue be laid out and established as a public town way, and that the same is hereby laid out and established as a public town way . . . And said Board having considered the question of damages sustained by the owners of lands across and through which said ways have been laid out and established as aforesaid, hereby determines that no damages are sustained and no damages are awarded.

The minutes of the February 1962 Meeting stated that this decision was made “after having given due written notice of the intention of said Board, as required by law, to lay out as a town way the way known as Lexington Avenue . . .” The records at the Town Clerk’s Office do not contain copies of any such notices.

5. By Order of Taking dated April 9, 1962 (the “Taking”), Defendant took “the right or easement to use [Lexington Avenue] for all the purposes of a town way for the use of said Town.” The Taking stated, “[w]e determine that no damages have been sustained and none are awarded.” [Note 3]

6. A plan titled “Plan of Land in Lexington, Massachusetts (Middlesex County) for Chen,” dated October 21, 2010 and prepared by Stamski and McNary, Inc. (the “2010 Plan”), depicts Plaintiff Property, Lexington Avenue, and Follen Road. The 2010 Plan shows a triangular discrepancy of 325 square feet between the westerly boundary of Plaintiff Property and the easterly boundary of Lexington Avenue (the “Disputed Area”). The 2010 Plan shows the Drill Hole at the intersection of the Stone Wall and Follen Road. Additionally, the 2010 Plan shows a stone bound marker (the “SBM”)3.4 feet to the east of the Drill Hole. The SBM is located on the southeasterly boundary of the Disputed Area. [Note 4] The SBM is not explicitly referenced in the Taking, although the metes and bounds described in the Taking encompass the area on which the SBM lies. [Note 5] The 2010 Plan is not recorded in the Registry.

7. The Taking indicated, through a series of metes and bounds, the land sought to be taken for the easement. The metes and bounds of the easterly boundary described in the Taking is the same as the easterly boundary of the Disputed Area in the 2010 Plan. The Taking also stated that the easement taken “is intended to conform to a plan entitled ‘Plan of Lexington Ave., Lexington, Mass., Scale 1" = 40', Jan. 9, 1962, John J. Carroll, Town Engineer’” (the “1962 Plan”). The 1962 Plan shows the northerly boundary of Plaintiff Property as bounded by a stone wall, but does not depict the Stone Wall as the westerly boundary. [Note 6] The Taking was recorded with the Registry at Book 10020, Page 312. [Note 7]

8. At the time of the Taking, Plaintiff Property was owned by James E. and Lois L. Gallagher (the “Gallaghers”). The Gallaghers were assessed the sum of $442 at $10 per foot for the increased 44.20 foot frontage that they would have as a result of the construction of Lexington Avenue (the difference between the existing frontage of 150 feet on Follen Road and the new frontage of 194.20 feet on Lexington Avenue, i.e. the increased frontage of Plaintiff Property on a public way). The summary judgment record does not contain a copy of written notice given by Defendant to the Gallaghers that a part of their property was subject to the Taking.

9. The minutes of the Board’s hearing of January 31, 1962, in discussing the taking of various streets in Lexington, show that one of the Selectmen indicated, in response to a question of whether “the present finished area would be widened,” that Lexington Avenue would not be widened and that “it is planned to keep the width of the pavement approximately the same.” Defendant has never attempted to widen Lexington Avenue relative to the Disputed Area (i.e. beyond the Stone Wall).

10. By deed dated April 26, 1962 (the “Lexington Avenue Deed”), the fee owners of Lexington Avenue deeded the fee in Lexington Avenue to Defendant. [Note 8] The Lexington Avenue Deed states that the fee is “[t]he fee in Lexington Avenue . . . as shown on [the 1937 Plan].” The 1937 Plan shows Lexington Avenue as extending only to the Stone Wall. See supra, Fact 3. The Lexington Avenue Deed was registered as Document 378141 on Certificate of Title No. 107638.

11. A plan prepared by Whitman and Howard (the “Whitman and Howard Plan”), dated June 1962 and revised to reflect Lexington Avenue “as built” in February 1968, was prepared for Defendant to show the edge of the traveled roadbed of Lexington Avenue as built and the boundaries of the Taking. This plan was not recorded. The Whitman and Howard Plan shows the Stone Wall and the discrepancy between the Stone Wall and the easterly boundary of the Taking, i.e. the Disputed Area.

12. By deed dated January 4, 1994, and recorded with the Registry at Book 24131, Page 259, the Gallaghers conveyed Plaintiff Property to Charles Ronald Chester and Emily D. Chester. This deed did not reference the Taking. However, this deed does reference both the 1928 Plan and the 1925 Plan.

13. Defendant has never attempted to enter the Disputed Area since the Taking.

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The case-at-bar presents several separate issues for consideration. First, I will examine whether or not notice was given to the Gallaghers, Plaintiffs’ predecessors in interest, that Defendant intended to take part of Plaintiff Property in accordance with the statutory mandate. Second, I will consider whether or not the notice actually given by Defendant was sufficient in light of all the circumstances. Third, I will examine the record to determine the extent to which Defendant even intended to include Plaintiff Property in the Taking. I shall address each issue in turn.

I. Notice to Gallaghers

Plaintiffs contend that Defendant has the burden of proof to show that the Taking is valid. McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 495 (2007) (“[t]he town, as the proponent of public rights [in land], bears the burden of proof”); Witteveld v. City of Haverhill, 12 Mass. App. Ct. 876 , 877 (1981) (“the burden of proof [falls] on the defendant[] as the part[y] trying to assert the easement”). In order for a taking for a public way to be valid, land owners must be given written notice. G.L. c. 82, § 22. [Note 9] With these principles in mind, I will consider both the impact of the statutorily-mandated written notice requirement and the impact of the notice actually given by Defendant.

A. Written Notice Requirement

Plaintiffs argue that the Taking is not valid because Defendant cannot meet its burden to prove that it provided the statutorily-mandated written notice to the Gallaghers, Plantiffs’ predecessors in interest. In this regard, Plaintiffs rely on Loriol v. Keene, 343 Mass. 358 (1961). The Loriol court stated: The giving of notice and filing of a layout required by the provisions of G.L. c. 82, §§ 22, 23, are not mere procedural technicalities. The requirement that a layout be filed “ . . . was manifestly not intended to prescribe a mere formality, but to lay down the indispensable conditions upon compliance with which the right of appropriating private property to public uses of this kind can lawfully be exercised. As one of the safeguards of individual rights against inconsiderate or capricious action on the part of municipal authorities, it establishes a rule to secure precision and exactness of description on the part of the selectmen as to the changes which they propose to make. It is material to the landowner to know exactly what portion of his land is to be taken, and to the voters to know exactly what the proposition is upon which they are to decide.” [Note 10]

Id. at 361-62 (emphasis supplied) (internal citations omitted). Without prior notice, Defendant could not have taken any interest in land owned by the Gallaghers, as the Disputed Area was exclusively owned by the Gallaghers. The minutes of the February 1962 meeting state that notice was properly given, but this is not conclusive proof that notice was in fact provided. The summary judgment record does not contain copies of any notices allegedly sent to the Gallaghers relative to the Taking. In fact, the summary judgment record also contains no notices sent to any parties affected by the Taking.

B. Sufficiency of Notice Actually Given Defendant argues that it gave sufficient notice to the Gallaghers because the metes and bounds description in the Taking encompasses the Disputed Area. Defendant points out that the 1962 Plan lists the width of the opening of Lexington Avenue at Follen Road as 71.59 feet. [Note 11] This width conforms to the measurements of the metes and bounds description. Accordingly, Defendant argues that because the Taking indicated that it was intended to conform to the 1962 Plan, and because the metes and bounds description in the Taking conforms to the 71.59 foot measurement in the 1962 Plan, it provided ample notice to the Gallaghers of its intention to take the Disputed Area. Plaintiffs contend that even if the Gallaghers had notice of the Taking relative to Lexington Avenue, they could not have notice of the fact that the Taking involved any portion of Plaintiff Property because the language of the Taking and the 1962 Plan did not show that the Taking involved any portion of Plaintiff Property.

Neither the 1962 Plan nor the Taking would have put the Gallaghers on notice that any portion of their property was involved in the Taking. Defendant’s argument that the Gallaghers received sufficient notice in the Taking itself through the metes and bounds description is unpersuasive. Under Defendant’s reading of the statutory notice requirement, a town could satisfy G.L. c. 82, § 22 by remaining silent in the plain language of an order but recite its intention through complex, technical metes and bounds descriptions. Such a reading would mean that the only way the Gallaghers, or any other potentially aggrieved party, could have possibly discovered that their property was being taken was if they hired a professional surveyor.

The 1962 Plan could not have put the Gallaghers on notice either. The 1962 Plan depicts Lexington Avenue as 71.59 feet wide where it meets Follen Road. Defendant correctly states that this measurement conforms to the metes and bounds description in the Taking and argues that this measurement is sufficient notice. However, a look at the 1962 Plan with an untrained eye would not have put the Gallaghers on notice that their land was being taken. The Gallaghers would not have been able to decipher the measurement in any meaningful way without the assistance of a professional land surveyor. Furthermore, the 1962 Plan depicts a single straight line separating the boundary of Plaintiff Property from Lexington Avenue. There is no separate line, as in the 2010 Plan and Whitman and Howard Plan, separating the boundary of Plaintiff Property pre- and post-Taking from Lexington Avenue. The westerly boundary of Plaintiff Property is 192.91 feet and the easterly boundary of the Disputed Area is 193.03 feet. The difference between these two boundaries is only .12 feet, a width that would be unrecognizable to a lay person looking at the 1962 Plan. Absent some clear language in the Taking or a clear marking on the 1962 Plan, neither of which was provided, the Gallaghers would not be on notice that Defendant was taking their land.

Furthermore, the minutes of the February 1962 Meeting, where the vote was taken for the Taking, do not mention that any private property other than Lexington Avenue was to be taken as a part of the Taking. [Note 12] All of the recorded plans at that point indicate that the Disputed Area was not a part of Lexington Avenue. Not only would the Gallaghers not “know exactly what portion of [their] land [was] to be taken,” see Loriol, 343 Mass. at 361-62, they would not know that their property was being taken at all. As a result, I find that Defendant has not met its burden of proof that it provided the statutorily-mandated written notice to the Gallaghers, Plaintiffs’ predecessors in interest. See McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 495 (2007) (proponent of public rights in land has burden of proof).

II. Intention of Defendant to Take Plaintiff Property

Beyond the question of whether or not Defendant provided notice to the Gallaghers, another issue is whether or not Defendant intended to take the Disputed Area. Plaintiffs argue that, in light of the fact that Defendant cannot prove that it provided notice to Plaintiffs’ predecessors in interest, Defendant likely never intended to take easement rights in any portion of Plaintiff Property. Defendant emphasizes the fact that the Taking includes the Disputed Area in its metes and bounds description for Lexington Avenue and argues that this is telling of the Board of Selectmen’s intent to take the land described in the Taking. Plaintiffs acknowledge that the metes and bounds description did include the Disputed Area, but not in such a way that would have put their predecessors in interest on notice. Defendant also argues that the Whitman and Howard Plan, which depicts both the Stone Wall and the Taking as encompassing the Disputed Area, illustrates its intention to take the Disputed Area.

However, Defendant’s argument is again unpersuasive. While it is true that the metes and bounds description encompasses the Disputed Area, Defendant ignores the critical language of the Taking: “The above description is intended to conform to [the1962 Plan].” As stated above, the 1962 Plan does not depict the Stone Wall and did not indicate that any of Plaintiff Property was to be taken. This tends to show that Defendant did not intend to take Plaintiff Property.

There are issues with the 1962 Plan. First, the 1962 Plan does not depict the Stone Wall at the westerly boundary of Plaintiff Property. This topographical error notwithstanding, the 1962 Plan shows the intended Taking line as a straight line along the boundary of Plaintiff Property with no indication that the line includes any portion of Plaintiff Property. This line appears to match up with the Stone Wall, even though the Stone Wall is not depicted. Earlier plans, such as the 1925 Plan and the 1937 Plan, show that the Stone Wall is the demarcation line between Plaintiff Property and the property that today is Lexington Avenue. Every indication is that the lines on the 1962 Plan, the 1937 Plan, and the 1925 Plan were intended to be the same.

Second, the 1962 Plan shows that Lexington Avenue is 71.59 feet wide at the intersection of Follen Road. This measurement goes easterly to the SBM and thus includes the Disputed Area. Defendant was aware of the SBM in 1962. However, the fact still remains that the depicted demarcation line between Lexington Avenue and Plaintiff Property is a single straight line like that in the 1925 Plan and the 1937 Plan with no indication that part of Plaintiff Property was to be taken. A measurement indicating that Lexington Avenue is 71.59 feet wide is insufficient to put the Gallaghers on notice that part of their land was taken. As with the metes and bounds description, the Gallaghers could only decipher the meaning of the measurement through a professional surveyor, and the fact that the depicted property line was unchanged from the 1925 Plan and the 1937 Plan would not have indicated to them that any of their property was being taken.

Moreover, while it is unclear precisely when or why the SBM was created, it was in Defendant’s engineering records as early as 1942. If Defendant intended to take Plaintiff Property up to the SBM, it most likely would have indicated in the 1962 Plan by depicting the SBM at the end of the Disputed Area as separate from Plaintiff Property pre-Taking. It is curious that Defendant did not even mark the SBM at all on the 1962 Plan.

Defendant’s argument that the Whitman and Howard Plan demonstrates its intention to take the Disputed Area changes nothing. In fact, it undermines Defendant’s argument. The Whitman and Howard Plan could not have provided the requisite notice to the Gallaghers for three important reasons. First, it was prepared for Defendant in February 1968, six years after the Taking. Second, it was never recorded. Third, it was not referenced in the Taking; only the 1962 Plan was. Had Defendant issued a plan identical to the Whitman and Howard Plan along with the Taking, such plan accompanied with written notice to the Gallaghers might have satisfied the statute, but that was not the case.

Plaintiffs also point out that the Lexington Avenue Deed makes no reference to the Disputed Area. In fact, the Lexington Avenue Deed references only a grant of a fee interest in Lexington Avenue as shown in the 1937 Plan. Such description covers only the portion of Lexington Avenue which was a part of the Tower Property. Defendant argues that this is irrelevant, as the grantors of Lexington Avenue could not deed rights to the Disputed Area as they did not hold title. Plaintiffs are correct that the Lexington Avenue Deed makes no reference to the Disputed Area, but instead references the 1937 Plan. Defendant is correct that the grantors of Lexington Avenue could not convey property they did not own. However, Defendant is incorrect to say that this is irrelevant. Defendant took title to the portion of the fee in Lexington Avenue, which was part of the Tower Property, after the Taking. However, Defendant has provided no evidence that it attempted to take title to the Disputed Area from the Gallaghers after the Taking. Such an action would be consistent with an intent to acquire rights over the Disputed Area.

Finally, as Plaintiffs point out and Defendant acknowledges, Defendant has never sought to alter, maintain, or enter the Disputed Area since the Taking was ordered. It should be noted that it was not possible for Defendant to easily use the Disputed Area because the Stone Wall divided Lexington Avenue from Plaintiff Property. Plaintiffs argue that the lack of usage of the Disputed Area indicates the intent of Defendant not to take the Disputed Area. Defendant argues that its failure to expand Lexington Avenue’s footprint into the Disputed Area proves nothing. Defendant notes that municipalities frequently layout roads beyond roadbeds for purposes of safety, drainage, and access to utilities.

Plaintiffs provided a photograph of the Disputed Area in the summary judgment record. This photograph depicts land containing an abundance of vegetation and greenery and enclosed by the Stone Wall. These conditions tend to suggest that no public way exists in the Disputed Area. See Witteveld v. City of Haverhill, 12 Mass. App. Ct. 876 (1981) (“the manner in which the path of the claimed way was overgrown with trees and other vegetation . . . support[s] the judge’s findings that no public way existed in the disputed area”). The presence of the Stone Wall makes use of the Disputed Area by Defendant, or anyone else besides Plaintiffs, improbable and impractical. See id. (precipitous rise and fall in grade made driving car in disputed area improbable, thus supporting judge’s findings that no public way existed). Furthermore, Defendant has furnished no evidence that it ever used, or intended to use, the Disputed Area for purposes of safety, drainage, or utilities. This fact also supports Plaintiffs’ position. As a result of the foregoing, I find that Defendant did not intend to take the Disputed Area as a part of the Taking.

Based on the foregoing, Plaintiff’s Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.