CHARLES C. STOVER, III and KATHARINE S. STOVER, as Trustees of the St. Mary's Street 72 Realty Trust v. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION

This case started as one that could have produced an entertaining retelling of a slice of the history of southern New England's railroad system. That system once was one of the nation's densest transportation networks. One historian writes that by 1900:

In hundreds of rural villages in Massachusetts, Connecticut and Rhode Island the depot had replaced the Meetinghouse as the focal point of town activity. Stores, banks, hotels, taverns, and coal and grain dealers in most towns clustered around the railroad. From the local station, trains departed several times each day for Boston, New Haven, Hartford, Providence, Springfield, or Worcester, as well as more distant points such as New York, Albany and Portland. Intercity routes linked all of these cities together, making it easy—for those who could pay—to travel throughout southern New England or to ship or receive goods to or from anywhere.

Ronald Dale Karr, The Rail Lines of Southern New England 14 (Branch Line Press 1995). Railroads left an indelible mark not only on the nation's economy, but its culture as well. The rails linger in song ("I've Been Working on the Railroad," "Big Railroad Blues," "Chattanooga Choo-Choo," "Homeward Bound," "Midnight Train to Georgia"), movies (Strangers on a Train, Twentieth Century, The Polar Express) and even children's literature (Thomas the Tank Engine comes to mind). But shortly after this case left the station, unglamorous issues of governmental power, none of which has inspired a memorable song, a decent movie, or a bedtime story, began trying to derail it. Those issues didn't upset things the first time around, but they have now.

The story for plaintiffs Katharine S. and Charles C. Stover III begins nearly twenty years ago, when they purchased a residential property at 72 St. Mary's Street in Newton. They later conveyed that property to the St. Mary's Street 72 Realty Trust. The Stovers are trustees of that trust.

The deed to 72 St. Mary's Street recites that it is bounded easterly "by Boston and Albany Railroad," hereafter called the "B&A." The deed also describes the property by reference to a 1937 subdivision plan. On that plan, the area on the east side of the property is labelled "Boston and Albany Railroad."

The abutting B&A "property" wasn't (and isn't) the railroad's land. The Stovers and their opponent in this proceeding, defendant Massachusetts Department of Conservation and Recreation, agree that the B&A had only an easement. A corporate forerunner of the B&A, the Boston & Worcester Railroad Corporation, lawfully took the easement in 1847 from the man who once owned what is now 72 St. Mary's Street, Edward Warren, in order to complete a railroad line that became known as the Newton Lower Falls Branch of the B&A.

The nineteenth-century statutes that gave railroads like the B&W and the B&A the power to take private lands to extend railroad lines didn't give the railroads a fee interest in what they took. Instead, a railroad received only a permanent and exclusive easement in the taken land, for as long as the easement served the railroad's chartered purposes. See Collins v. Massachusetts Dept. of Conservation and Recreation, 20 LCR 164 , 167 (Mass. Land Ct. 2012) (Grossman, J.); see also Yvonne H.P. Silva and Henry H. Thayer, "Title to Railroad Properties," Real Estate Title Practice in Massachusetts (MCLE 2d ed., 1st Supp. 2013).

Under Massachusetts law, railroad easements long have been considered "ways," similar to a highway. See Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 805 (2003) (collecting cases). For an even longer period of time, deeds have described parcels as "bounding on or by a highway." See Crocker's Notes on Common Forms § 171 (MCLE 10th ed. 2013). Thus, that the Stovers are parties to a deed that describes their property as being "bounded by" the B&A doesn't amount to an admission by them that the B&A or any of its successors in interest (which DCR claims to be) own the abutting area in fee. Rowley instead instructs that if a property described as "bounded by" a railroad is actually bounded by a railroad easement like the one that runs past the Stover property, and if that property otherwise benefits from the Derelict Fee Statute, G.L. c.183, § 58, those who accept a deed for that property succeed to whatever rights remained in the owner of property at the time of the original taking of the easement (here, Mr. Warren) to get the land back, free of the easement, once its railroad uses have ended. See Rowley, 438 Mass. at 800-07.

The Stovers and DCR agree that the last whistle blew on the Newton Lower Falls Branch sometime in 1972, after the Branch's operator, Penn Central Transportation Corporation, filed for bankruptcy. They agree that the B&A easement ended up in an entity known as The Penn Central Corporation, and that in 1982, The Penn Central Corporation conveyed the easement to the Metropolitan District Commission. DCR has succeeded to the MDC's interests in the B&A easement.

The dispute before this Court began when DCR announced that it wanted to build a walking and biking path on the B&A easement. After all, the railroad's tracks are gone; fences that the railroad was supposed to maintain have disappeared; and all that remains here and there are buried wooden railroad ties. In 2011, DCR contractors started using the Stover stretch of the B&A easement as a staging area to rebuild a bridge that DCR intended to use for the recreation path. The Stovers filed suit in this Court after the contractors appeared.

The Stovers' amended complaint contains two counts – one to quiet title, and another to remove a cloud on title – but both claims arise under G.L. c.240, § 6. The Stovers ask this Court for essentially two declarations: that the B&A easement as it abuts the Stover property has been "extinguished by virtue of cessation and abandonment of railroad operations" along the easement, and hence the Stovers' property is "unencumbered by any easement or other right of use or entry thereon derived from the former railroad easement"; and "that DCR has no right, title and interest" in the easement as it crosses the Stovers' property. The Stovers also seek an order permanently enjoining DCR "from entering upon, using, cutting trees, dumping dirt, building a path, interfering with or otherwise trespassing upon" the Stovers' portion of the B&A easement.

A typical termination-of-easement dispute requires examination of the relevant title history and associated uses of the easement. That's why this case looked like it should have been one about railroads. But the Stovers are against an atypical adversary in DCR. DCR is an instrumentality of the Commonwealth of Massachusetts. DCR initially hoped to sidestep any examination of its title by invoking sovereign immunity, a doctrine that prevents a private party from suing the Commonwealth (or one of its units, like DCR) in the Commonwealth's courts absent the Commonwealth's consent or federal abrogation of the Commonwealth's sovereignty. Four years ago, this Court ruled that DCR couldn't claim sovereign immunity in a c.240, § 6 action, see Stover v. Massachusetts Dept. of Conservation and Recreation, 21 LCR 640 (Mass. Land Ct. 2013) (Sands, J.), but the undaunted sovereign (invoking a right enjoyed by few besides the sovereign, see Locator Servs. Group, Ltd. v. Treasurer & Receiver General, 443 Mass. 837 , 844-45 (2005)) took an interlocutory appeal. Two years later, the Appeals Court upheld this Court's ruling. See Stover v. Dept. of Conservation and Recreation, 87 Mass. App. Ct. 1133 (2015) (Rule 1:28 decision). The Stovers and DCR booked a return trip to this Court.

During the parties' layover at the Appeals Court, DCR seized on a different strategy for defending its interests in the Newton Lower Falls Branch. That strategy had worked in Murray v. Dept. of Conservation and Recreation, 22 LCR 469 (Mass. Land Ct. 2014) (Piper, J.). The Murray plaintiffs owned properties on the other side of the tracks from the Stovers. Like the Stovers, the Murray plaintiffs had sought a declaration that the B&A easement had terminated with the end of its railroad uses.

Justice Piper's Murray decision opens as an examine-the-titles case, but it has a surprise ending: Murray observes that sometime during the Branch's long history, the Branch became subject to regulation by the federal Interstate Commerce Commission. Murray holds that, once the federal government starts regulating a railroad line, no state court may decide whether that line has been abandoned unless and until the appropriate federal agency (formerly, the ICC; currently, the Surface Transportation Board) has issued a "certificate of abandonment" or its equivalent. Murray also holds that the forum for disputes over whether such a certificate has issued, or should have issued, is exclusively federal. Murray, 22 LCR at 472-73.

The Murray plaintiffs appealed, to no avail. See Murray v. Dept. of Conservation and Recreation, 475 Mass. 99 (2016). Having vanquished the Murray plaintiffs, DCR moved for summary judgment against the Stovers, claiming that their case is no different from Murray. (A footnote in DCR's motion also argues that even if the Stovers' claims aren't within the exclusive jurisdiction of federal authorities, those claims either are within the primary jurisdiction of the Commonwealth's Department of Public Utilities or must await the exhaustion of purported administrative remedies. These contentions are suspect on a variety of levels; in any event, for reasons that will become clear shortly, the Court needn't reach DCR's primary-jurisdiction and exhaustion arguments.)

Commendably, the Stovers and DCR agree on numerous facts besides those recounted so far. But the Supreme Judicial Court's rendering of Murray identifies those that dictate the outcome here.

First, the Murray plaintiffs conceded that Penn Central, the owner of the Newton Lower Falls Branch at the time trains ceased using it, did not obtain a certificate from either the ICC or the Surface Transportation Board that authorized abandonment of the Branch. See Murray, 475 Mass. at 101-02. The Stovers and DCR agree on that same fact.

Second, there is a procedure under §§ 304(a)-(b) of the Regional Rail Reorganization Act of 1973, codified at 45 U.S.C. §§ 744(a)-(b), that at one time allowed the trustees of a railroad in reorganization to abandon rail property that had not been designated for transfer to an operating railroad under a United States Railway Association ("USRA") "final system plan." The Stovers and DCR agree that Penn Central was a "railroad in reorganization" for purposes of the Reorganization Act, and that the Newton Lower Falls Branch was not designated for transfer to Conrail, Penn Central's successor-in-operations, under a USRA final system plan. The trustees of the bankrupt Penn Central thus could have used §§ 304(a)-(b) to abandon the Newton Lower Falls Branch.

But did they? According to Murray, abandonment under §§ 304(a)-(b) requires two steps, each of which must be accompanied by a notice. See Murray, 475 Mass. at 103-04. The Murray plaintiffs couldn't locate either type of notice, and hence Murray declined to hold that there had been an authorized abandonment of the Newton Lower Falls Branch under §§ 304(a)-(b). The Stovers conceded at oral argument that they too haven't found any §§ 304(a)-(b) notices for the Branch.

Last, § 304(f) of the Reorganization Act allowed a railroad line to be abandoned "by obtaining authorization directly from the USRA." Murray, 475 Mass. at 104. The Murray plaintiffs couldn't deliver evidence of such an authorization for the Newton Lower Falls Branch, see id., and the Stovers admitted at oral argument that they can't either.

Murray holds that if a party seeking to quiet title under c.240, § 6 with respect to a federally regulated railroad easement cannot prove abandonment by one of the three means discussed above, the case must be dismissed for lack of subject-matter jurisdiction. Anticipating that Murray directs that outcome here, the Stovers advance two arguments. They first ask this Court to hold that Murray was wrongly decided. They offer persuasive legal reasoning and considerable undisputed facts in their favor. They also concede, however, that only the SJC may overrule Murray. Commonwealth v. Vasquez, 456 Mass. 350 , 356 (2010), agrees.

The Stovers' second argument is more attractive. "Allegans contraria non est audiendus," they claim: one alleging contrary things is not to be heard. The Stovers insist that DCR has taken inconsistent positions in this litigation. They point out that from the moment it dispatched construction equipment to the Stovers' section of the B&A easement in 2011, DCR has asserted that it owns the easement. A heading in DCR's memorandum in support of its motion for summary judgment says it all: "DCR Has Record Title to the Relevant Segment of the NLFB Right-of-Way." But at some point in the Murray litigation, DCR began contending (or so the Stovers say) that there's been no federal authorization of abandonment of the Newton Lower Falls Branch. How can that be, ask the Stovers, if DCR claims to have good title in the Branch?

The flaw in this reasoning is that DCR's position on abandonment is more nuanced than the Stovers admit. Murray holds that, absent specific proof of federal authorization of abandonment, one must take all questions concerning a railroad line's "abandonment status" to federal authorities. DCR's motion for summary judgment doesn't claim that the Branch wasn't abandoned; instead, DCR's position is that the Stovers lack the proof that anyone (including DCR) must have, after Murray, in order to avoid putting abandonment-status questions to the Surface Transportation Board or the federal courts.

But suppose DCR's positions were directly contrary. May a state court assert subject-matter jurisdiction over a dispute that otherwise is exclusively federal, simply because one party or the other has acted inequitably? The usual rule is that "[w]here there is a lack of jurisdiction, waiver or consent cannot confer it." Second Bank-State Street Trust Co. v. Linsley, 341 Mass. 113 , 116 (1960). The Stovers offer no contrary authority. Thus, unless and until Murray is overruled, this Court lacks jurisdiction under c.240, § 6 to determine whether a federally regulated railroad line has been abandoned, unless the party asserting jurisdiction can prove as a matter of fact that federal authorities already have approved the line's abandonment.

The Stovers claim that hewing to Murray unjustly leaves the status of the Newton Lower Falls Branch in limbo. The Court disagrees. As Murray notes, 475 Mass. at 104 n.7, the parties have federal remedies. DCR also admitted at argument that the Murray and Stover litigation halted construction of the planned path, at least for the moment. Neither case has declared the state of DCR's title or its ability to open the B&A easement to pedestrians and bicyclists. And while this Court cannot quiet (or a remove a cloud on) title to areas that are subject to the B&A easement without knowing the official federal position as to abandonment of the Newton Lower Falls Branch, the Branch's official status might have no bearing on the question of the authorized uses of the B&A easement, should DCR resume construction of a walking/bicycling path upon it. That question is left to another day.

Judgment accordingly.