ELAINE K. MURRAY and RUTH LEVENS v. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION.

I. INTRODUCTION

In this case, I am asked to decide whether an easement, authorizing the running of a portion of an old railroad in Newton from Riverside to Newton Lower Falls over a stretch that includes the plaintiffs’ properties, has been abandoned. The plaintiffs, Elaine K. Murray and Ruth Levens (“plaintiffs”), own land over which the railroad once operated. They argue that the right of way has been abandoned by the railroad, the easement has been extinguished, and they hold title to their land free and clear of the historic railroad rights.

The Commonwealth claims to have acquired the railroad rights by a 1982 deed, and has plans, more or less well formulated, to some day use the railway easement not for railroad use, but as part of a recreational trail system. I conclude that no abandonment has occurred under the common law of Massachusetts, and that this court lacks jurisdiction to determine whether there has been an effective abandonment under the relevant federal law, including the Regional Rail Reorganization Act of 1973.

II. PROCEDURAL HISTORY

Plaintiffs filed their initial complaint on September 19, 2011. On October 31, 2011, the Commonwealth filed a motion to dismiss the complaint. [Note 1] The court conducted a case management November 17, 2011. Counsel undertook to continue efforts to agree on a form of amended complaint that would eliminate the need for the court to hear the Commonwealth’s motion to dismiss. On December 5, 2011, plaintiffs filed an amended complaint, [Note 2] and the Commonwealth withdrew its earlier-filed motion to dismiss. The December 2011 amended complaint contained a single count for declaratory judgment.

On January 20, 2012, the Commonwealth filed a motion for judgment on the pleadings, Mass. R. Civ. P. 12 (c), arguing that sovereign immunity barred declaratory judgment actions against the Commonwealth. Following a March 20, 2012 hearing, the court (Piper, J.) allowed conditionally the Commonwealth’s motion, ruling that under Executive Air Serv., Inc. v. Division of Fisheries & Game, 342 Mass. 356 (1961), in suits addressed to the Commonwealth’s title to land, the Commonwealth is immune from suits seeking declaration under G. L. c. 231A as to the Commonwealth’s title. Nonetheless, the plaintiffs were given leave to amend further their complaint to state a cause of action to register or confirm title under G. L. c. 185, § 26, [Note 3] or to quiet title under G. L. c. 240, §§ 6-10. [Note 4]

On April 13, 2012, plaintiffs filed their second amended complaint, this time seeking to quiet title under G. L. c. 240, §§ 6-10. On May 22, 2012, the Commonwealth filed its second motion for judgment on the pleadings, arguing that the Commonwealth is immune from suits under the quiet title statute. Following hearing on June 27, 2012, the court ruled that the Commonwealth was a proper defendant under G. L. c. 240, §§ 6-10, and instructed the parties to complete discovery and ready the case for adjudication on the merits. [Note 5]

The court held a hearing on the cross motions for summary judgment on August 20, 2013. [Note 6] Among other things, the Commonwealth argued that the absence of a certificate of abandonment from the federal Surface Transportation Board meant that plaintiffs simply could not demonstrate the railway had been abandoned. The Commonwealth stressed the central role of the Surface Transportation Board in matters relating to the abandonment of railroad rights of way over which the federal government exercises control and jurisdiction. Following argument, to address this point, the court directed the parties to consider whether the United States, the Surface Transportation Board, or some other federal agency or official was a necessary party to this action, and to file a report with their collective or respective views.

The plaintiffs indicated that their initial efforts to discover a certificate of abandonment had not yielded one; they undertook a renewed effort to try to locate a certificate of abandonment, if one in fact existed. In a joint report filed September 10, 2013, the plaintiffs indicated that no federal party need be joined, and that this court could and should grant the plaintiffs the relief sought in their complaint. The Commonwealth, on the other hand, reported its view that the Surface Transportation Board retained primary jurisdiction over this dispute, that the court was incapable of rendering a valid judgment, and that this case should be dismissed. The court scheduled a hearing on the joint report. Following hearing, on October 11, 2013, the court granted plaintiffs leave to continue efforts to locate a certificate of abandonment, or any other relevant materials from the U.S. Department of Transportation. Finally, on January 30, 2014, plaintiffs sent a letter to the court indicating their search efforts had been exhausted. [Note 7]

The court, in response to the January 30 letter, directed the parties to file a final joint report indicating whether and how what the parties had learned or accomplished in seeking the federal records relevant to this case ought to affect the pending summary judgment motions. By joint report, the plaintiffs provided their position: that the absence of a certificate of abandonment, or anything else, following the filing of a request to abandon, requires an inference that the abandonment has been consummated. The Commonwealth directly disagreed with this position, arguing that the certificate of abandonment (and nothing short of it) is, as a matter of law, required to demonstrate an effective abandonment, and without it, plaintiffs’ case must fail. All parties agreed that the previously argued motions then should be treated as fully submitted to the court, and I now decide them.

III. FACTS

The following facts are undisputed and properly before me under Mass. R. Civ. P. 56:

1. The Boston & Worcester Railroad was created in 1831 to construct a railroad between Boston and Worcester. In or around 1847, the Boston & Worcester Railroad filed a “Plan of Location of the Newton Branch Railroad” with the Middlesex County Commissioners. The disputed property in this case is shown as part of the branch railroad depicted on the 1847 Plan of Location. The branch, or at least the relevant part of it, has come to be known as the Newton Lower Falls Branch.

2. At some point in time, the Penn Central Transportation Company (“Penn Central”) by mesne conveyances and transactions, succeeded to the Boston & Worcester’s interest in the Newton Lower Falls Branch.

3. By deed (“Levens Deed”) recorded with the Middlesex County (South) Registry of Deeds (“Registry”) at Book 9033, Page 284, plaintiff Ruth Levens holds record title to the property known as 25 Baker Place, Newton, Middlesex County, Massachusetts (“25 Baker”), and there resides.

4. The Levens Deed, dated October 2, 1957, describes 25 Baker as “shown as Lot #6 on a subdivision plan of land drawn by Donald W. Scully, C.E., filed for record in Middlesex South District Deeds, End of Book 7872,” and bounded westerly “by Newton Lower Falls Branch of Boston & Albany Railroad, One hundred ten and 84/100 (110.84) feet[,]”and conveyed “[s]ubject to restrictions and easements of record insofar as the same are now in force and applicable.”

5. By deed (“Kiuber Deed”) recorded with the Registry at Book 20827, Page 375, plaintiff Elaine Murray, formerly Elaine Kiuber, holds record title to the property known as 29 Baker Place, Newton, Middlesex County, Massachusetts (“29 Baker”), and there resides.

6. The Kiuber Deed, dated October 19, 1990, describes 29 Baker as “shown as Lot 5 on a plan entitled ‘Subdivision of Land in Newton Lower Falls, Mass. dated February 16, 1951’ by Donald W. Scully, in Book 7872, Page End,” bounded westerly “by land of the Boston and Albany Railroad, one hundred (100) feet[,]” and conveyed “subject to restrictions and agreements of record[.]”

7. The “subdivision plan of land drawn by Donald W. Scully, C.E., filed for record in Middlesex South District Deeds, End of Book 7872,” is dated February 16, 1951, shows twenty lots laid out along Baker Place and a cul-de-sac called Swallow Drive. Six lots shown along Baker Place—including 25 Baker and 29 Baker—are shown abutting the Right of Way, depicted as “Boston & Albany Railroad, Newton Lower Falls Branch.”

8. In or about 1970, Penn Central filed for bankruptcy.

9. The Regional Rail Reorganization Act of 1973, Public Law 93-236, was enacted by Congress on January 2, 1974 (“1974 Act”). The 1974 Act is codified at 45 U.S.C. § 741. Essentially, as a result of the Penn Central bankruptcy, Congress created the Consolidated Rail Corporation (“Conrail”), which would be tasked with operating railroads in the region, and the United States Railway Association (“USRA”), which was to develop a plan to determine which lines of railroad would be transferred to Conrail, and which would not. The result of USRA’s charge was the July 26, 1975 publication of the Final System Plan for Restructuring Railroads in the Northeast and Midwest Region Pursuant to the Regional Rail Reorganization Act of 1973 (“Final System Plan”). [Note 8]

10. The Final System Plan indicates that the Newton Lower Falls Branch had a “Date Last Used” of May 30, 1972. See Final System Plan Vol. II, p. 497.

11. The Newton Lower Fall Branch was not designated to be transferred to the newly-created Conrail. See Final System Plan Vol. II, p. 497.

12. As of June 26, 1975, there was a pending application under section 304(f) of the 1974 Act8 to abandon the Riverside to New Lower Falls line. Final System Plan Vol. II, p. 528.

13. In 1976, Penn Central (or its successor or agent) began to remove the rails from the ground along the Lower Falls Branch.

14. By deed dated November 1, 1982 and recorded with the Registry at Book 15359, Page 464, Penn Central granted and released to the Commonwealth all its interest in the Newton Lower Falls Branch.

IV. DISCUSSION

A. Summary Judgment Standard

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub. nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

B. Sovereign Immunity

The Commonwealth maintains its objection to jurisdiction based on sovereign immunity, arguing that the Commonwealth has not consented to be sued under the quiet title statute. The court previously ruled on this argument, and adheres to the rulings made June 27, 2012, which, as reflected on the docket, were:

Hearing Held on Commonwealth's (Second) Motion for Judgment on Pleadings. Attorneys Schilling and Murray, and Assistant Attorney General Donnelly Appeared and Argued. Following Argument, For Substantially the Reasons Set Forth in Plaintiff's Opposing Papers, and the Reasons Set Forth in Polchlopek v. Commonwealth, 17 LCR 152 , 154 (2009) s.c. 18 LCR 274 , 276 (2010), aff'd 81 Mass. App. Ct. 1119 (Rule 1:28), further app. rev. denied 462 Mass. 1104 (2012), [the Court Denies the Commonwealth’s Motion for Judgment on the Pleadings,] Ruling That: (1) Provisions of Section 6 et seq. of G.L. c. 240 May Be Used Even When Adverse Claimants Are Known with Certainty Because Judgments Under These Sections are In Rem (see G.L. c. 240, §10, and Bevilacqua v. Rodriguez, 460 Mass. 762 at n.5 (2011)), and For In Rem Judgments to Have Any Practical Meaning, They Must Bind Not Only Those Who Are Difficult to Locate, But Those Who Actually Have Been Located. (2) Express Exclusion of Commonwealth as Possible Defendant in Proceedings Under G.L. c. 240, §§ 1-4 (see G.L. c. 240, § 5) Was Necessary and Intentional Action by Legislature, and Shows Comparatively that Absence of Similar Exclusion Language in 6-10 Means Commonwealth was Intended by Legislature to be a Proper Defendant Under 6-10. Express Exclusion of Commonwealth as Defendant in G.L. c. 240, § 5 Does Not Compel Conclusion that Commonwealth is Excluded as Defendant in Action Under G.L. c. 240, §§ 6-10. Unlike Sections 6-10, Sections 1-4 Put Burden on Defendant to Commence Separate Action to Prove Its Title, A Burden Which the Legislature Did Not Wish to Place on the Commonwealth. (3) Court Rejects Commonwealth's Argument that Proceedings to Register and Confirm Title Under G.L. c. 185 Are the Only Way Commonwealth May be Sued on a Question of Title to Land. In a Situation Like the Instant Case, Where No Dispute About Boundaries Are Present, and No Need Exists for Survey Work or Extensive Title Examination to Locate Missing Interests, There Is No Reason to Insist, as Defendant Contends, that Provisions of Registration Act, G.L. c. 185, Be Used as the Exclusive Avenue Have Courts Settle Title In Which Commonwealth Claims an Interest. Court Rejects the Commonwealth's Position That, Prior to 1898 Enactment of the Registration Act, The Commonwealth Was Not Amenable to Any Suit (in Any Court) In Which the Commonwealth's Title to Land Was In Dispute, Such a Blanket Immunity from Suit, Deprives all Courts of Jurisdiction to Hear and Determine Land Title Cases Involving the Commonwealth, [and] Would Have Been Incongruent with Due Process.

C. The Right of Way

There is no real disagreement that the interest in land first taken by the Boston & Worcester Railroad in 1847 was in the nature of an easement, rather than a fee. See Collins v. Massachusetts Dep’t of Conservation & Recreation, 20 LCR 164 , 167 (2012) (Miscellaneous Case No. 09 MISC 407809) (Grossman, J.). See also Hazen v. Boston & Maine R.R., 68 Mass. (2 Gray) 574, 580 (1854). All parties agree that the plaintiffs each own some portion of the fee in the railway in the area where the railroad formerly passed over their property, by operation of either G. L. c. 183, § 58, the so-called “derelict fee statute,” or its common law predecessor. The issue in this case is whether the railroad easement has been abandoned.

1. Common Law Abandonment

The plaintiffs ask the court to determine that the railway easement has been abandoned under common law principles generally applicable to extinguishment of easements. They argue that the cessation of use in 1972, following by the removal of the tracks in 1976 constitute an intent to abandon. This argument cannot prevail.

Mere cessation of use is not sufficient to extinguish an easement. See Cater v. Bednarek, 462 Mass. 523 , 528 & n.15 (2012). More is needed than demonstration of nonuse. There must be proved an actual intent to abandon the easement right. “[N]onuse of itself, no matter how long continued, will not work an abandonment.” Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958), quoted in Martin v. Simmons Props., LLC, 467 Mass. 1 , 19 (2014). The 1976 removal of track— which certainly carries some indicia of intent to abandon—simply comes too late. By that time, the provisions of the 1974 Act were fully in force, and the USRA Final System Plan plainly shows the Newton Lower Falls Branch as not abandoned. Moreover, after 1974, federal authorization was required to abandon the subject railway. Section 304 (f) of the 1974 Act states “After the date of enactment of this Act, no railroad in reorganization may discontinue service or abandon any line of railroad other than in accordance with the provisions of this Act” (emphasis provided). [Note 9]

2. Abandonment Under the Regional Rail Reorganization Act

The subject railway was excluded from those transferred to Conrail under the 1974 Act. See Final System Plan Vol. II, p. 497. That alone, however, does not exclude the branch from the 1974 Act’s jurisdiction. “If a line is not designated for inclusion in ConRail, and if the state and local interests fail to provide the subsidy, the Act permits the discontinuance of service and abandonment of the line.” Final System Plan Vol. I, p. 10. Thus, the Final System Plan contemplated stretches of railway that were not brought into the Conrail system (because they were not self-sustaining at the time), but nevertheless were not to be abandoned, at least without further action. One such reason not to abandon a line was that it might be useful for regional light rail use. In fact, there is a procedure set up for subsidizing such lines; there also is a procedure in place for abandoning the line if no entity comes forward with an offer to subsidize. Section 304 (f) of the 1974 Act states: “After the date of enactment of this Act, no railroad in reorganization may discontinue service or abandon any line of railroad other than in accordance with the provisions of this Act, . . . notwithstanding any provision of any other Federal law, the constitution or law of any State, or decision or order of, or the pendency of any proceeding before any Federal or State court, agency, or authority.” The Final System Plan shows that, as of June 26, 1975, there was a pending application under section 304(f) of the 1974 Act to abandon the Riverside to New Lower Falls line. Final System Plan Vol. II, p. 528. There is, however, no record of any action being taken on this application, despite great effort by plaintiffs to obtain records pertaining to USRA docket no. 75-72.

“A railroad seeking to abandon a railroad right-of-way within the jurisdiction of the STB must either (1): file a standard abandonment application that meets the requirements of 49 U.S.C. § 10903; or (2) seek an exemption, under U.S.C. § 10502. If the STB approves a standard abandonment application or grants an exemption and the railroad ceases operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and state law reversionary property interests, if any, take effect.” Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed. Cir. 2004). “The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of. . . all rules, regulations, or final orders of the Surface Transportation Board[.]” 28 U.S.C. § 2342.

In a simple sense, the Land Court is being asked to determine a prosaic state law issue-- whether the easement, over which stretches of the Newton Lower Falls Branch once ran, has been abandoned. But the Act of Congress makes that question--ordinarily one of state law–one instead committed to a different, federal, forum. Controlling federal law makes that a matter which, in the first instance, only the Surface Transportation Board can resolve. [Note 10] This case presents as what is known as an “adverse abandonment,” where a municipality or private landowner seeks from the STB (or its predecessor, the Interstate Commerce Commission (“ICC”) [Note 11]) a certificate that a railroad property has been abandoned. See Consolidated Rail Corp. v. Interstate Commerce Comm’n, 29 F.3d 706, 708-09 (D.C. Cir. 1994). “In a typical abandonment case a railroad requests the ICC to allow it to discontinue service over a particular line.” 29 F.3d at 708. In an adverse abandonment, “it is a third party who seeks the issuance of an abandonment certificate.” Id. Importantly, “a municipality cannot condemn rail property subject to the STB’s abandonment authority without STB approval.” Jersey City v. Consolidated Rail Corp., 741 F. Supp.2d 131, 140 (Dist. D.C. 2010), reversed on other grounds 668 F.3d 741 (D.C. Cir. 2012). The federal process for determination of abandonment is indispensable. It is only after an abandonment certificate issues that “property owners with reversionary rights in the rail line may be able to have. . . their property restored.” Consolidated Rail Corp. v. Interstate Commerce Comm’n, 29 F.3d at 710. In fact, adverse abandonment proceedings are useful because “an abandonment certificate can be used in state court to establish that the [rail] line is ... not exempt from local or state condemnation.” Id. at 709. The reported cases in this area make clear that the STB plainly has exclusive primary jurisdiction to issue certificates of abandonment. The Land Court can in no way perform this function, and cannot enter a judgment which affords the same essential relief to the plaintiffs.

There is, however, another layer to this problem. Here, there plainly was an application to the STB to abandon the subject railway. This court is being asked to determine what action, if any, has been taken by the STB; what happens, if anything, to an application that has been filed almost forty years with no action; and what the legal consequence is where such an application has no documented outcome. This court lacks jurisdiction to make this determination. By federal statute only the U.S. Court of Appeals may “determine the validity of. . . all rules, regulations, or final orders of the Surface Transportation Board[.]” 28 U.S.C. § 2342.

This jurisdictional grant appears absolute. In the Jersey City cases, [Note 12] a dispute between the City of Jersey City and Conrail went to the Surface Transportation Board. Consolidated Rail Corp. v. Surface Transp. Bd., 571 F.3d 13, 17 (D.C. Cir. 2009). The dispute centered on whether a certain rail facility, the “Harsimus Embankment,” was considered railroad line that Conrail could only abandon with STB authorization, or whether it constituted only “spur, industrial, team, switching, or side tracks” that could be abandoned without approval. Jersey City v. Consolidated Rail Corp., 688 F.3d 741, 743-44 (D.C. Cir. 2012). The city petitioned the STB for a declaration whether or not the Embankment was a railroad line as to which STB action was necessary. 571 F.3d at 17.

The D.C. Circuit vacated the STB’s declaratory order, ruling that the STB lacked jurisdiction to make this determination. 571 F.3d at 19. The result turned on the Circuit Court’s decision that what was sought was essentially a determination of the “nature” of a conveyance that earlier had been ordered by the “Special Court” [Note 13] established pursuant to the Act. 571 F.3d at 19. As such, it fell within 45 U.S.C. § 719 (e) (2), which grants exclusive jurisdiction to the U.S. District Court for the District of Columbia to “interpret. . . any of the orders entered by [the Special Court.]” [Note 14] There are, certainly, clear differences between the jurisdiction to consider and review acts of the Special Court, on the one hand, and acts of the STB, on the other. In the case now before me, there is no cause to interpret an act of the Special Court, and the actual holding of Jersey City v. Consolidated Rail Corp., 668 F.3d 741 (D.C. Cir. 2012) is not directly applicable. But the lesson applies: the jurisdictional provisions included in the 1974 Act (and subsequent legislation) are not waivable, and will be jealously guarded. In the Jersey City cases, the federal regime for determination of railroad line abandonment was enforced scrupulously. In those cases, the jurisdictional lines being enforced were those drawn between the federal court and the federal agency. The inability of a state court to step in and adjudicate a matter commited by Congress to the exclusive jurisdiction of a federal authority, the STB, should be even more obvious. I conclude that the Land Court lacks jurisdiction to determine the validity, meaning, and legal effect of action taken (or not taken) by the Surface Transportation Board within its exclusive federal authority. [Note 15], [Note 16]

The judgment that I will direct be entered in this case will be one of dismissal without prejudice. The plaintiffs and the Commonwealth each are free to seek an order, declaration, or other relief, from the Surface Transportation Board, [Note 17] or from the appropriate federal court, or take any other appropriate action.

Judgment accordingly.