RICHARD E. SWAN, SHARON D. SWAN, RUTH D. TURSKI, and PATRICIA CAHILL v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

Judgment in this case entered July 6, 2009, the date I issued a decision granting the summary judgment motion of the defendant, the Massachusetts Bay Transportation Authority. After disposition of post-judgment motions, the plaintiffs noticed their appeal to the Appeals Court. After considering that appeal, No. 2011-P-0202, the Appeals Court remanded this action to this court for further proceedings consistent with the memorandum and order of the Appeals Court, dated June 25, 2012, issued by it pursuant to its Rule 1:28. Rescript issued from the Appeals Court on July 23, 2012.

On July 30, 2012 I issued an order inviting the parties to counsel me on how next to proceed to comply with the Appeals Court’s directive, and to bring the case to judgment again. The following month, after hearing counsel, I issued orders to conduct and conclude promptly the limited discovery indicated on the issue left open on remand, and then to prepare for trial. The parties harbored for some time optimism that they might consensually resolve their dispute, and asked for and received that opportunity; the court allowed joint requests to stay the proceedings to pursue settlement and other creative outcomes. Concluding that, however well- intentioned and genuine, the grounds for the parties’ optimism were fading, the court requested counsel to prepare for trial on the issue which the Appeals Court had required me to address further. The case now has had a trial on that question, and, after briefing, argument, and careful consideration of the evidence introduced at trial and otherwise properly before me, I now issue my findings of fact and rulings of law, and direct entry of an appropriate judgment consistent with the Appeals Court’s rescript.

I need not rehearse at length the dense facts underlying my grant of summary judgment to the MBTA in my July 6, 2009 Decision; I incorporate that decision in this later one. Instead, as the parties agree is proper, I have focused my attention on the question which animated the Appeals Court to return this case to me, and on which I now have heard evidence--most of it in the form of expert opinion testimony and reports.

The trial I conducted on remand was about one pivotal issue: whether, based on the state of the record title in the Plymouth Registry of Deeds, and the facts and circumstances surrounding the relevant transactions, the Swans, when they bought their two Bridgewater parcels (and in any event no later than their acquisition of their second (Turski) parcel in August, 2001) had constructive notice of the MBTA order of taking dated June 27, 1996, and recorded in the Registry fifty-four days after that. The 1996 order of taking purported to acquire the fee in the disputed strip, formerly used as a railroad right of way, running between the two parcels acquired by the Swans, the first in March, 2000, and the second the following year. It is the title to this strip that is ultimately at issue in this case.

The question of who owns and has rights in that strip turns on the constructive notice question which troubled the Appeals Court. The panel which heard the appeal expressed concern about my earlier conclusion, reached on the summary judgment record, that not later than when they took title to the Turski parcel, the Swans would have had constructive notice of the 1996 order, based on what title examination done for the purchase ought have uncovered. I concluded in the 2009 summary judgment decision that "[t]he record in the case at bar only admits of one reasonable inference, namely that the Swans were, or ought have been, led by the record title to, and aware of, the 1996 Order of Taking at the time of their 2001 purchase." When plaintiffs asked me to reconsider this conclusion, I stuck with it, saying "prudent title examination, given the uncontested state of the record title at the time the Swans acquired their title in 2001 would have resulted in the Swans examining the record ownership of the [right of way] and understanding it was affected by the 1996 order of taking."

On this question, my view of the summary judgment record was:

Title examination at the time of the Swans' purchase should have, under any reasonable view of the record title facts, paid attention to the state of title of the Right of Way, on which the conveyed land bounded, and by which it was described with reference to the recently prepared January 2001 plan. It was incumbent upon the buyers to take note of the referenced plan's attribution of ownership of the disputed Right of Way to the Commonwealth, and to seek out the relevant recorded instruments bearing on the identity of the true owner of the strip. This strip was land abutting the parcel Turski was granting to the Swans, and the record sufficiently shows that determination of the title to this abutting strip was an integral part of the steps prudent conveyancing practice would require in such a transaction. Any such search, if diligent in the least, would have found the recorded 1996 Order of Taking. It [the 1996 order of taking] was the obvious source, in the Registry of Deeds, of the Commonwealth's claim of title to the former railroad track which bordered the parcel the Swans were acquiring.

Because I determined that the Swans were chargeable with constructive notice of the 1996 MBTA order of taking by August, 2001, I ruled both that they had commenced this case too late, and that they lacked standing to challenge the taking, because they took their title after the recording of the order of taking. It was on these bases that the MBTA prevailed when the case first was before me. The panel’s 1:28 memorandum decided that I had drawn my constructive notice conclusion without proper support in the summary judgment record:

The judge correctly concluded that the deed for the Turski parcel put the Swans on constructive notice of the Commonwealth's historical claim of ownership of the right of way. See Jackson v. Knott, 418 Mass. 704 , 712 (1994). However, it does not necessarily follow that the Swans thereby had constructive notice of the 1996 order of taking. Indeed, for all that appears on the summary judgment record, the Swans mistakenly believed that the Commonwealth owned the right of way at the time they purchased the Turski property. Based on that erroneous understanding, the Swans had no obvious reason to search the Commonwealth's chain of title to see if some other public entity might have taken the Commonwealth's property five years earlier. ... At least without further explanation, it is not clear why the Swans would research title to land they did not think they were buying.

To the extent that the judge relied on his view that the Swans should have uncovered the 1996 order of taking (even though the order of taking was not recorded "in due course"),... the judge does not identify any authority to support that view. See Fall River Sav. Bank v. Callahan, 18 Mass. App. Ct. 76 , 82-83 (1984) (upholding a judge's ability to rely on legal texts and articles with regard to proper conveyancing practices). Nor does the judge cite to title standards or other "expressions of professional opinion" included in the summary judgment record. See ibid. ... To the extent that the judge relied on his considerable background expertise as to proper conveyancing practices, such reliance left the Swans without an opportunity to challenge the basis of his ruling.

Regardless of whether the MBTA eventually will be able to show that the Swans had constructive notice of the 1996 taking by 2001, we do not believe this has been established as a matter of law on the current summary judgment record. Instead, the issues need further development on remand.

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In issuing this Decision, I rely upon the facts found by me to be undisputed in the initial decision I issued which were left undisturbed by the Appeals Court in its review of the judgment earlier entered. I also rely upon the stipulations of the parties by their counsel, including their agreement as to facts, laid out in the record of this case.

At trial, Felix Cerrato, Richard J. Gallivan, Joel A. Stein and Robert S. Mangiaratti were called by the plaintiffs. Michael Marsh gave evidence for the defendant. The exhibits are as reflected in the filed transcripts.

After trial, based on my view of the evidence, including my assessment of the credibility and persuasive force of the testimony of those who were witnesses before me, and my evaluation as trier of fact of the weight and meaning of all of the evidence submitted to me, I make the following findings of fact and rule as follows:

The Swans own in fee record title to the land abutting both the easterly and westerly side of the railway location.

The Swans live at and own their home on land in Bridgewater near the disputed strip, and have since 1972.

Based upon records of the MBTA engineers, which Mr. Swan investigated, he concluded that trains stopped running in around 1938 over the railroad right-of-way (“ROW”) that bisects his property. Mr. Swan personally witnessed the railroad tracks being torn up in 1968.

In 1985, Mr. Swan, who resided at 171 West Street, East Bridgewater, began assembling real estate adjacent to his home. In that year, he purchased a 12 to 14 acre parcel next to his two acre residential property from Al Richards for $35,000. The Richards parcel did not abut the ROW. Mr. Swan also purchased another small parcel of land that did not abut the ROW. He does not remember from whom he purchased the parcel or the acreage of the parcel.

The Swans purchased on March 31, 2000 the first of the two parcels that are the focus of the trial I conducted, 44.79 acres of land that they obtained by deed from Cahill. The land conveyed by Cahill abuts the easterly side of this railroad ROW; at the time of this conveyance, of course, the railroad ROW no longer was in use for railroad purposes. Mr. Swan says he does not know whether a title search was conducted by his attorneys when he and his wife purchased the Cahill property.

In August of 2001, the Swans acquired the second of the two parcels most at issue in this case. The Swans purchased 10.09 acres of land by deed from Ruth Turski on August 23, 2001. Mr. Swan says he does not know whether a title search was conducted by his attorneys when he and his wife purchased the Turski property. The land conveyed by Turski abuts the westerly side of the ROW, which at the time of the conveyance also no longer was in use for railroad purposes. Before they took title to the 10.9 acre parcel, the Swans knew an old railroad ROW ran along the Turski parcel’s easterly boundary. Prior to acquiring this 10.09 acre parcel from Ruth Turski on or about August 23, 2001, Richard E. Swan and Sharon D. Swan saw and were fully aware of the plan (“2001 Plan”) which is in evidence as Exhibit 22, a Compiled Plan of Land for West Street, East Bridgewater, MA, dated January 15, 2001 by Ross Engineering Company, Inc. of Norwell, MA. This is so even though this plan first was recorded (along with the deed to the Swans) on August 23, 2001 in the Registry as Plan 533 of 2001, in Plan Book 44, Page 829.

This 2001 Plan provides bold and direct indications that the land the Swans acquired in August of 2001 from Turski, Lot 2, has as its entire easterly boundary a long, uniformly rectangular strip of land, emanating northeasterly from the line of West Street, having a straight sideline, shared with the Turski parcel, of 1,739.56 feet, and a uniform width that looks to be just about forty feet. On the inset locus map of the 2001 Plan, this strip is depicted as part of what can only be interpreted as a schematic representation of a longer line of railroad track. Within the strip drawn on the 2001 Plan is the legend: “Commonwealth of Massachusetts 100 Cambridge Street Boston, MA 02204 Assessors Plat 33 Lot 15 and Plat 42 Lot 5A.” On the opposite side of this strip, the 2001 Plan notes who the abutting landowners are: In the first parcel heading northeasterly from West Street, the Rutkowskis are shown as owners. The next parcel, abutting the remaining length of the strip, has ownership attributed to “Patricia A. Cahill and Richard E. and Sharon D. Swan 171 West Street East Bridgewater, MA 02333 Assessors Plat 32 Lot 14.” The 2001 Plan, of which I find the Swans had complete awareness before they took title from Turski, plainly shows that the land she sold them was bounded on its easterly sideline by this linear strip undoubtedly the locus of the former railroad ROW, and that, beyond the Rutkowski parcel, the same strip had its easterly sideline along the westerly line of other land the Swans already owned, that which they had bought a bit earlier in the Cahill transaction; the 2001 Plan openly attributes to the Commonwealth ownership of the railroad strip. I find it significant that the deed from Turski describes the land it conveys not by metes and bounds, but only by reference to the 2001 Plan, with its portrayal of all of these obvious features. The plan in such a case forms part of the deed for purposes of understanding its effect; the need to study the plan closely would be even more pressing for this reason.

Attorney Richard J. Gallivan was retained by the Swans’ conveyancing attorney, David Drohan, to investigate the title to both the Cahill and Turski acquisitions by the Swans. Mr. Gallivan has been an attorney in good standing in the Commonwealth of Massachusetts for nearly four decades. His legal expertise is in real estate titles and conveyancing. He was Senior Conveyancing Clerk of the Norfolk County Land Registration District and Registry of Deeds from 1971-1976. He was appointed as a Land Court Examiner in 1980 and still holds that appointment.

Attorney Gallivan's title examinations of both the Cahill and Turski parcels contained multiple references to the railroad ROW. The Assessors’ maps that Attorney Gallivan examined for both the Cahill and Turski parcels showed the strip to be a railroad ROW. He performed the examinations for each of the two parcels acquired by the Swans at separate times, although they were not all that far apart. The Cahill deed was recorded in March of 2000, and the Turski deed went to record in August of the following year. Mr. Gallivan saw the 2001 Plan at least two or three weeks before the closing on the Turski acquisition. That plan had been prepared in February, 2001, and endorsed by the East Bridgewater Planning Board, see G.L. c. 41, §81P, on March 12, 2001.

To the extent that Mr. Gallivan’s testimony may purport to say that he did not appreciate that, at the time of the Swan purchase of the Turski parcel, they were buying a second lot lying just on the opposite side of the larger Cahill parcel, and that the two lots were separated only by a long, narrow, uniformly rectangular strip of land that was for many years in use as a railroad right of way, I do not find that a satisfying account of what happened. I find that Attorney Gallivan would have had an appreciation, based, at a minimum, on the clear labels and legends on the 2001 Plan, that the Turski parcel was the second piece of Swan land for which he had been involved in examining title, and that the only thing separating the parcel bought the year before from the one now being examined was a strip of what could only have been a former railroad line.

The evidence convinces me that, in a case like this one, a Massachusetts lawyer who examines title to land lying along the side of what is obviously a current or former railroad right of way, on behalf of a prospective buyer who already owns land lying along the opposite side of the same railroad right of way, is on full alert that further investigation needs to be undertaken, and should advise the buyer to that effect. That responsibility is particularly acute where the parcels of the buyer on both sides are of substantial size and importance.

A number of reasons exist why further investigation of the title is indicated in such a situation. There are statutes which have a material impact on the ability of an owner abutting railroad rights of way to use, improve, and obtain land use and building permits for the land involved. G.L. c. 40, §54A provides in pertinent part:

"If a city or town or any other person purchases any lands formerly used as a railroad right of way or any property appurtenant thereto formerly used by any railroad company in the Commonwealth, no permit to build a structure of any kind on land so purchased shall be issued by any city or town in the Commonwealth without first obtaining, after public hearing, the consent in writing to the issuance of such permit from the secretary of the executive office of transportation and construction. If said secretary does not consent to the issuance of such permit, the owner of the land may recover from the Commonwealth such damages as would be awarded under the provisions of chapter 79…"

G.L. Chapter 40, §54A at the time of the Swan purchases required that any persons buying lands formerly used as railroad ROW or any property appurtenant thereto should obtain the consent of the Secretary of the Executive Office of Transportation and Construction (EOTC) before building on that land. The risk of land appurtenant to the railroad property being part of the land abutting the right of way counsels that further investigation be made of the title to the land being bought (and to the land obviously once used as a railroad right of way). This investigation informs the buyer about the potential for the statute’s provisions to intrude into the buyer’s planned use and development of the purchased property. I find that, because of G.L. c. 40, §54A, it would have constituted good and prudent conveyancing practice for a title examiner and conveyancer examining title to a large parcel of land abutting a railroad right of way, and already owning an even larger piece of land on the opposite side of that right of way, to at least have determined the ownership of the strip, and of the rights of the buyer and other parties in and to the strip, as part of an effort to guage the applicability of G.L. c. 40, §54A to the purchased properties. This was not done in the case before me.

G.L. c. 161C, §7 requires that railroad companies, before selling or transferring railroad rights of way or facilities, must first offer the subject property to the Commonwealth before selling, transferring or otherwise disposing of the railroad right of way. The title records, the assessors’ plans, and the 2001 Plan disclosed that the right of way abutting the Turski land was held in some fashion by the Commonwealth of Massachusetts and had obviously been in use for railroad purposes. Given the posture of the Turski transaction, with the buyers intending to end up in ownership of large tracts on both sides of the ROW, good and prudent title examination and conveyancing practice required that the back title of the Commonwealth of Massachusetts in and to the right of way strip be examined, to determine its past and present status and ownership, and how that ownership would affect the use, enjoyment and fair market value of the Cahill and Turski parcels. This was not done in the case before me.

Most significantly, I find that good and prudent conveyancing and title examination practice would have counseled that one examining title to the large Turski parcel--knowing that it had a long boundary along a strip of land, with ownership attributed to the Commonwealth, and also knowing that just opposite that strip lay another even larger tract of land recently purchased by the same buyer–advise the buyer to examine title to the intervening strip to investigate whether there were or were not rights of passage across the strip to connect the two parcels, which otherwise would be fully separated from each other along a strip a third of a mile in length. There is no doubt that had the Turski and Cahill parcels been acquired simultaneously, shown alongside each other on the same plan or survey as separated by the ROW strip, the responsibility of the conveyancing lawyer and title examiner would have been to counsel the buyer to investigate the ownership of the intervening strip, to figure out who had title to the strip, and whether the lands being purchased enjoyed easements to traverse it. I find that this result is the same notwithstanding the short interval of time between the two parcels’ acquisitions by the Swans. If not a fundamental requirement of work to be done when the first parcel was bought, it without doubt was when the second Turski land was purchased. There was more than sufficient clarity imparted to the lawyers and title examiners involved from the title record, as well as from the 2001 Plan on which the closing and the drafting of the Turski deed proceeded. The need to deal with the barrier presented by the ROW strip, as shown on the 2001 Plan, would have been obvious enough that diligent lawyering would have called for investigation of the title the the ROW, and determination of who had what rights in and to it.

If the attorneys for the Swans had conducted a reasonable search of the grantor index, they would have discovered the deed from the Penn Central to the Commonwealth of Massachusetts in 1982 and the subsequent taking in 1996 by the MBTA. A reasonable grantee index search by the examiner would have disclosed the 1982 conveyance to the Commonwealth and the subsequent taking by the MBTA, which is indexed under the Commonwealth of Massachusetts in the grantor index at the Plymouth County Registry of Deeds.

I credit generally the testimony of expert witness Attorney Michael Marsh, called by the defendant at trial. He is a highly experienced and well-reputed conveyancing lawyer, and an expert in title examination. He has considerable background in a wide variety of title and Registry work, including as to titles where railroad land and that of public entities are central. I accept his evidence that an adequate and revealing title examination as to the right of way, referenced as being owned by the Commonwealth, would have taken only 5 or 6 hours of work. With a likely cost for the examination in the range of approximately $60/hour, even taking into account the fees of the conveyancing attorney to review the abstract and Registry instruments and plans, the assignment would have cost, at the most, a total of only a few thousand dollars.

I accept and adopt Mr. Marsh’s view that in this reasonable and not overwhelmingly protracted way, a title examiner would have come to schedule in the Registry’s indices the Commonwealth’s title from the time of its acquisition in the 1982 deed, and so in due course would have been led (without great and impracticable effort) to the 1996 order of taking made against that title interest of the Commonwealth. Given what was at stake, and the size and nature of the lands involved and their alignment along opposite sides of the obvious and lengthy strip, I find this was an indicated, reasonable, prudent, and diligent investigation that ought have been made on behalf of the Swans. I also adopt Attorney Marsh’s evidence that, in light of the particulars of the title to the Turski parcel, which suffered from some vagueness in its description, a prudent title examiner would have gone to further effort to “prove out” the locus’ description, and that doing that would have called for greater examination of the titles to the abutting parcels. This is another reason, I find, why a reasonably prudent, diligent title examination would have led to examination of the title to the ROW strip, and in turn, to the discovery of the order of taking which lies at the heart of this dispute.

I agree with the defendant and its witness that the scope and challenge of the required search which would have led to the order of taking, while not insignificant, was not so time- consuming, expensive, and otherwise daunting that it would have been unreasonable to undertake in the circumstances here. It is true that the task required the scheduling out of the Commonwealth, which has many Registry of Deeds instruments recorded in its name, but I accept the defendant’s view of the facts that, particularly with the computerization of Registry records and the relative ease with which they can be reviewed to eliminate “nonlocus” and other irrelevant documents, the needed examination was not a lengthy one. The time period involved to make the connection from the deed into the Commonwealth (in 1982) and the order of taking (in 1996) was not unduly burdensome. A manageable exam would have led to that order, which on its face revealed flaws in the timing of its recordation. And although the further question of the nature of the railroad rights–whether acquired in fee or by layout and thus only an easement– has its answer in earlier records and transactions, I find that the resolution of that final point would not have been so difficult of accomplishment that it would have been unreasonable to determine it. Once the order of taking was located, it would have and should have, in the circumstances of these parcels and these common owners of large parcels on either side, prompted that additional investigation.

The Swans chose not to testify in court. But the evidence suggests that they were embarked upon a plan to assemble large tracts of land around their residence. They were intent on, at least, establishing some manner of enclave in which to live. The configuration of the Cahill and Turski parcels relative to each other demonstrates the paramount importance to the Swans of preserving privacy, controlling access, and knowing who would have rights to use the bisecting strip, and who would not. Whether the Swans also harbored a design to develop and improve some of the large acreage they were amassing is less clear to me, but, given the size and configuration of the parcels, not at all unlikely. Either way, there is little doubt in my mind that Mr. Swan would have had considerable interest in controlling and limiting use of, and access to and over, the ROW that bisected his two large parcels, as well as in knowing that he and his spouse could pass freely across the ROW to go easily to and from the Cahill and Turski acquisitions. Well aware of the history of this strip as a railroad line, without doubt the Swans would have desired to know if a railroad could again be run on the ROW; if that were at all possible, it would have a material impact on the Swans’ use and enjoyment of the parcels of land they were assembling, and their value. I thus find that the prudent need to examine title to the intervening strip is clear in this case--because of the client buyers’ desire to know the nature and extent of the rights they would have in and to the intervening strip, and who else might have rights there.

The evidence is clear that Mr. Swan took an active role in policing the use of the strip. After purchasing the Cahill parcel in 2000 and the Turski parcel in August, 2001, Mr. Swan dealt with, and was greatly unhappy with, many people passing up and down the ROW and trespassing onto his adjoining properties. For years before the filing of the complaint in this case, Mr. Swan confronted a large number of trespassers who had arrived on his property by using the ROW. In 2003, he put up a security fence along the easterly side of the railroad ROW in an effort to limit access by these trespassers. While all of this took place after the two parcels were purchased, this evidence paints for me a picture of a man very jealous of the use of his land, and who would have wanted nothing so much as a legal right to bar others from setting foot on the strip that runs for a long stretch between his two parcels. His later vehement opposition to a proposal to create a recreational trail down the stretch of ROW between his two parcels only reinforces this view. Within a few years after buying these parcels, lawyers for the Swans were in correspondence with the municipality, concerned about the bicycle path proposed to run down the ROW, and showing awareness that it was the defendant who purported to control the rights in the strip. If, when the Swans bought the Cahill and Turski lands, Mr. Swan had the legal ammunition afforded by a title examination of the strip, and a determination that, based on the derelict fee statute’s operation and an understanding that the burden of the former easement for railroad use had been lifted from the strip, leaving the Swans the unencumbered fee owners of it, Mr. Swan would have been most happy. It thus seems to me untenable that he would not have been benefited greatly by the useful knowledge a title examination, of the sort Mr. Marsh described, would have imparted at the time he purchased these parcels. Under all these circumstances, for these buyers of these properties, that examination would have been a prudent, expected, reasonable thing to carry out before the purchases took place.

I do not rely only on Mr. Marsh’s testimony for expert witness support. Attorney Joel Stein, another highly talented, experienced, able, and greatly respected expert in the field of conveyancing and title examination, took the stand for the plaintiffs. He testified believably and persuasively that the interests of the Swans called out for advice to them, before they purchased, about the legal issues involved in acquiring lands separated by a railroad right of way. I accept what Attorney Stein said: that had the Swans been his clients, he would have raised with them all the implications of owning bisected parcels with a railroad strip lying between them, and that he would have counseled them about the questions that could be answered by doing further title work to learn the full set of rights the buyers and others would have in the strip. I credit Mr. Stein’s evidence that it would have been good practice to at least recommend to the Swans that a preliminary title search be done as to the ROW. I find that the Swans, when they bought these parcels, would, with good counsel, have learned of the advantages of, and need for, an examination of the title to the strip, and would have directed that the examination take place.

I do not accept as at all convincing or satisfying the contrary testimony of Mr. Gallivan or of Attorney Robert Mangiaratti, another well-credentialed and experienced expert witness called by the plaintiffs. The testimony they each offered on the pivotal question being tried by me simply did not make sense.

Attorney Gallivan was the title examiner in both transactions. To his considerable disadvantage, he, though a respected member of the bar, was only the title examiner, having been engaged by Mr. Drohan, who was the transactional or conveyancing attorney for the Swans. Like the Swans, Mr. Drohan was not called to testify in court. His evidence might have been most illuminating. I am left, on much of what matters in this case, with only Mr. Gallivan’s account, and he had a curtailed vantage point of the transaction. It seems that Mr. Drohan was the only lawyer with direct communication with the Swans. Mr. Gallivan says, and I believe him on this, that he never had direct dialog with the buyers. He claims that he did not receive instruction that the second parcel, the Turski land, was located just across an unused railroad ROW strip from the first parcel, the Cahill land, whose title he had examined for Mr. Drohan and the Swans the year prior. I find this surprising. It seems to me far more likely that Mr. Drohan would have reminded Mr. Gallivan of the recent work he did for the first transaction, and would have said as well that the Turski land was located just on the opposite side of a long and narrow strip that had been the location of a railroad line. In any event, as I have found, this fact was open and obvious to all involved–Attorneys Drohan and Gallivan, and the Swans themselves.

What I find even more surprising, and unworthy of acceptance, is Mr. Gallivan’s testimony that whether he noticed or not the configuration of the two parcels on opposite sides of the railroad strip mattered not at all; he told the court he would not have advised on the wisdom of examining the title to the strip in any event. He did seem to concede that his judgment on whether to counsel a buyer about the need to examine title to an adjacent rail line would depend on the proximity of the strip in question. What makes little sense, given this recognition by Mr. Gallivan, is why this was not an instance where the ROW was proximate enough, particularly given the setting of the two parcels, shown plainly on the 2001 Plan, as lying along, and on opposite sides of, the ROW.

Attorney Gallivan’s approach was a mechanical one. He examined the title to the first parcel, and only the first parcel, and then, when the next transaction arrived, he examined title to the second title, and only the second title. That they were apart by only a forty-foot wide strip a third of a mile long, obviously used for railroad purposes, did not engender any change to this compartmentalized approach.

Evidently, this same approach was the one followed by Mr. Drohan. When the Swans bought the Turski property, Attorney Drohan necessarily had the same awareness, based on the 2001 Plan, other plans and instruments, and his prior representation of Swans in the Cahill transaction, to put him on alert about the implications of knowing (and not knowing) the rights and title the Swans and third parties, including the Commonwealth, would have in that strip once the second purchase closed. And yet, I infer, Drohan did not push for a title examination of the sort Mr. Marsh would have recommended be done. In not counseling that that examination ought to take place, the pair of lawyers who worked for the Swans in their purchase of the Turski property did not advise them to undertake an expectable, reasonable, prudent, and diligent title examination, given the particular facts and circumstances. The Swans, who as laypeople would have depended on lawyers to perform this examination, are left with the consequence of the failure to give that advice.

Of course, it also is possible that Attorney Drohan did raise the possibility of examining title to the strip with his clients, and that, despite that good counsel, they elected to go without that examination. Given the lack of courtroom testimony by the Swans and Attorney Drohan, and the strictures of the privilege surrounding communications between clients and their lawyers, the full facts on this are not available to me. In their absence, I find that the Swans were not advised to learn, by carrying out a reasonable and prudent examination of title, what rights they and others would have in and to the ROW, and that the failure by them to have done so means that they were not diligent, not prudent, and acted unreasonably in proceeding with the Turski purchase in advance of having performed the indicated title work.

As I have said, I also find unsatisfying and unpersuasive the line of evidence Attorney Mangiaratti gave as an expert witness for the plaintiffs. His testimony--that the presence of a railroad right of way bisecting lands being purchased by a common owner ought not present any reason to undertake a title examination to learn who, including the buyer of the abutting parcels, has what rights in and to the strip–is something I cannot accept as the trier of fact. I found unconvincing his insistence that, even in the case, say, of a client buying or developing a residential condominium building alongside an apparent railroad line, he would not think any investigation into the title to the abutting strip was indicated unless specifically requested by the client without prompting. I do not adopt Mr. Mangiaratti’s view that a title examiner owes no duty to his or her client to advise that the title under examination references railroad rights of way running alongside the locus, particularly where, as in the case before me, the parcel being bought is large, the intervening strip is well-defined, narrow and long, and the lot on the other side (owned or to be owned by the same party) also is sizeable. As well-qualified and well-regarded as Mr. Mangiaratti is, his position on this central question simply did not persuade me at all, given the facts and circumstances I have found surrounded the Swans’ purchase of these parcels.

To the extent that plaintiffs and their witnesses place reliance on the Supreme Judicial Court’s 2003 decision in Rowley v. Massachusetts Elec. Co., 438 Mass. 798 (issued after the Swans completed their purchases) for the proposition that examination of title to a linear strip such as a former railroad line was not in 2001 indicated on the facts in the case before me, I reject that contention. The plaintiffs say that prior to Rowley, the law of the Commonwealth was highly uncertain about whether the derelict fee statute would apply to abutting linear monuments such as railroad rights of way. I do not agree. In Rowley, the Supreme Judicial Court, concluding that owners of land along a former railway held title to the fee of that strip under G.L. c. 183, §58, relied on a long-standing line of cases which had likened railways to other varieties of ways, including highways. Given the “other similar linear monument” language of the statute, and in light of its purpose and that of the common law doctrine the statute codified, the Rowley court had little difficulty concluding that application of the derelict fee statute’s operation to abutting strips of railroad rights of way was comfortably within the reach of G.L. c. 183, §58. The court did not pronounce its decision on this point to be novel or unheralded, and did not make its holding prospective only.

The other question Rowley resolved--whether the statute’s provisions apply to railways which have existence on the ground, but are not described in the land records as forming the relevant property boundary--is even less significant in the case now before me. The deed to the Swans of the Turski land describes it by direct reference to the 2001 Plan, recorded along with the deed, and, as discussed at length above, that plan provides copious evidence of the abutting linear monument which was in use as a railway. I conclude that the Rowley decision supplies no reason why a prudent and diligent title exam of the ROW would not or should not have been undertaken a year and a half before the SJC’s decision issued. In fact, the Rowley court rejected arguments that conveyancing “chaos” would result from the result the court reached. The court, to the contrary, pointed to the fact that a breadth of information about the nature of and title to abutting land forming a linear monument “... is checked as a matter of course in the conveyancing and title examination of property in the Commonwealth, and an interpretation of §58 consistent with its wording and its purpose would not impose extraordinary burdens or additional expense on either.” 438 Mass. at 805.

Because a person is charged with constructive notice of facts he or she would have learned through a reasonably diligent inquiry, if the circumstances show that a reasonable, prudent person would and should have appreciated the necessity of making that inquiry, one is treated as on notice of those facts even if the actual investigation did not occur. It does not help that one simply avoided undertaking the inquiry. That principle serves a core purpose of our Registry of Deeds system. One is charged with constructive notice of the knowledge that could have been acquired by examining public records. The question is not whether the Swans did actually conduct the examination into the Registry’s records to learn what the title to the ROW was. As the Appeals Court made clear, the question is whether reasonable, diligent, prudent buyers in the Swans’ position would have made the examination necessary to lead them to the records showing the basis for them to challenge the taking and assert a title to the ROW free of the easement rights.

As trier of fact, I have assigned to the defendant the burden of proving the central question at trial–whether the Swans, not later than the time they took title to the Turski parcel, were on constructive notice of the flawed order of taking, and aware of their rights in the ROW, including the right to challenge the order’s defects. I assign this burden to the defendant because this question arises from the conceded failure of the defendant, as the taking authority, to give the direct notice G.L. c. 79 requires to the affected interest holders, and to have recorded the order of taking directly within the landowners’ chains of title. The case for constructive notice thus depends on what examination a prudent, diligent, and reasonable buyer would have made.

I decide that the defendant has carried its burden. After weighing all the evidence, as trier of fact, I come to the firm finding, by a fair preponderance of the evidence, that an expectable, diligent, prudent and reasonable examination of title at the time of the Swans’ acquisition of the land from Turski would have required examination of the title to the ROW strip, so that the Swans would at that time have become aware of the 1982 deed, the 1996 order of taking, and generally of all of the facts needed by them to challenge the taking. By not later than August of 2001, the Swans were charged with notice and knowledge of the facts that would have left them fully able to mount that challenge.

With this finding established for me by the evidence, the disposition of the case is indicated by much the same analysis I applied in my earlier decision on summary judgment. It follows from this finding after trial that, as owners who acquired their title to the land, including the ROW, affected by the 1996 taking after it was made, and while charged with knowledge of the taking and its failings, the statute of limitations began to run not later than then on the Swans’ claim to challenge the taking. G.L. c. 79, §16 (an action challenging the validity of a taking must be brought within three years from the time that the right to damages vests). See Cumberland Farms, Inc. v. Montague Economic Dev. and Indus. Corp., 38 Mass. App. Ct. 615 , 616 (1995). Based on the finding I have made, I conclude I must order dismissal of the untimely complaint the Swans brought.

I also decide that the Swans lack the standing needed to challenge the taking. They must accept its effect. Only the owner at the time of the taking has standing to seek damages or to contest the validity of the taking. Howland v. Greenfield, 231 Mass. 147 , 148 (1918); Barnes v. Springfield, 268 Mass. 497 , 505-506 (1929); Commonwealth v. Quincy Memorial Co., Inc., 13 Mass. App. Ct. 1047 , 1048 (1982); New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374 (1992). The Swans fall into this category of parties who lack standing to challenge the flaws in the taking, and their lack of standing is jurisdictional in nature, not something which can be waived. Litton Business Sys. Inc. v. Commissioner of Revenue, 383 Mass. 619 , 622 (1981).

The presence, nominally, in this case of the owners at the time of the taking, Cahill and Turski, is of no moment. They are not here seeking any monetary damages, and, by virtue of the deeds they delivered to the Swans, these former owners have no stake in the title to the lands they conveyed away, including as to the ROW that lies between the two parcels. They therefore have no right to equitable or declaratory relief going to the title. There being no relief the court could afford them, they too are incapable of mounting any challenge to the defendant’s title, and are themselves without any actual stake or standing in this case.

I have considered as well whether the decision in Devine v. Nantucket, 449 Mass. 499 (2007), discussed at length in both my summary judgment decision (see note 1 and ensuing text) and in the Appeals Court panel’s memorandum and order (see, eg., notes 10, 12, and 14 and accompanying text), requires a judgment in favor of the Swans on the facts I have found after trial. I conclude that that is not the case.

The Appeals Court panel returned this matter to me to hear evidence and make findings on the threshold question whether the Swans had, by 2001, constructive notice of the 1996 taking. Now, with the benefit of the evidence I heard, I have found that the Swans did have constructive notice of the 1996 taking when they bought the land. The Appeals Court did not in its memorandum and order have any apparent reservation about the approach I took in my initial legal evaluation of the case on summary judgment–namely, that if the Swans did have constructive notice of the taking in 2001, their suit required dismissal, the three-year statute of limitations having run before the Swans filed this action. The panel’s instruction to me was to test, after appropriate further proceedings, the accuracy of my earlier determination (first made on the summary judgment record) that the Swans had constructive notice when they took their title to the Turski property. Having heard the parties’ evidence, and made findings, I have determined that the Swans were on constructive notice of the taking.

I do not read the panel to have said that, were I to find, on the evidence, that the Swans had constructive notice, there was any judgment that ought be entered other than one dismissing the complaint. I have made that finding, and the dismissal is indicated. Nothing in my reading of Devine, nor in the Appeals Court panel’s parsing of it, suggests to me otherwise.

Prior to Devine, the time limitations imposed by G.L. c. 79 were inflexible, and applied even to a claim that a taking was a nullity. Whitehouse v. Sherborn, 11 Mass. App. Ct. 668 , 674- 675 (1981). In Devine, the taking authority argued that because the order of taking was recorded on October 3, 1968, the time to bring any action for damages, or to challenge the validity of the taking, had expired in October, 1971. Devine provided, for the first time, the opportunity for a challenge to a taking after the statutory limitations period had run. The previous decisional law, for very powerful public policy reasons, had been very strict in cutting off challenges to the title to lands taken for public purposes; while rights to damages might in some limited circumstances be extended, the title was largely immune from attack. In Devine the Supreme Judicial Court, breaking new ground, held that the three-year statute of limitations was not to be applied to bar a challenge to a taking when the taking authority recorded the order in a way that left the recording "invisible" to reasonable title examination, and the affected landowner held the status a bona fide purchaser. While Devine makes clear that strict application of the statute of limitations is inappropriate to cut off the rights of one who truly is a bona fide purchaser--who had no fair reason to know that there was any eminent domain proceeding about which to complain, see 449 Mass. at 512, n. 11 – in this case I now have found that the Swans were bound to know of the 1996 taking order not later than the time they purchased the Turski parcel. The Swans simply cannot claim status as bona fide purchasers. The taking would have been known to them had they conducted the reasonable, expectable, diligent and prudent title examination that I have found they ought have performed. Also, the holding in Devine gives the Swans no refuge from the rules of standing which bar one who takes title after the taking from challenging that taking’s validity, because they should have learned of the taking and its failings before they bought. For this reason, the Swans lack the standing to bring this action. On this ground as well, a judgment must enter dismissing the complaint.

This, I conclude, is the answer to the sweeping constitutional arguments the plaintiffs advance. They advocate for a higher level of protection than even that provided by the fifth and fourteenth amendments to the federal constitution in matters of deficient notice. Plaintiffs focus on the conceded defects in the way the taking order was recorded and notice of it supplied. The Swans press for a ruling that the running of the time during which a challenge based on those defects could be brought, must be tolled until actual notice took place. Plaintiffs urge me, apparently on state constitutional grounds, including rights they would have me recognize under Article 10 of the Declaration of Rights, to rule that constructive notice can never suffice to prevent challenges to eminent domain takings made with less than the statutorily required notice. Plaintiffs do not show me any convincing--much less binding--authority for this position. I read Devine as addressed, on constitutional grounds, to the fairness of imposing cutoffs on the ability to challenge takings. Devine teaches that where the essential facts needed to mount such a challenge are not in any manner reasonably discoverable, the otherwise lost right to raise objections to the taking may remain available. But where, as I have found to be the case here, a reasonable, expected, diligent and prudent search would have and should have yielded the ammunition required to mount the attack on the taking, those constitutional concerns do not apply.

Judgment accordingly.