MISC 17-000562

September 28, 2018

Middlesex, ss.



This case concerns an option agreement ("Option Agreement") between Massachusetts Transportation Bay Authority ("MBTA") and NSTAR Electric Company d/b/a/ Eversource Energy ("Eversource") (collectively "Defendants") to grant an easement to Eversource over the MBTA's inactive railroad right of way ("ROW") which passes through the Town of Sudbury ("Plaintiff" or "Town"). If fully exercised, the Option Agreement would create in Eversource rights to run power lines beneath the surface of the ROW. The plaintiff, the Town, in its amended complaint filed on November 17, 2017, [Note 1] seeks declaratory relief that MBTA's change in use of the ROW requires legislative authorization under the common law prior public use doctrine. The Town also seeks injunctive relief that would restrain MBTA from proceeding with the grant of the easement to Eversource unless MBTA receives legislative authorization to change the use.

On December 22, 2017, MBTA filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). Eversource on February 26, 2018 joined with MBTA's motion to dismiss. Defendants argue that under Mass. R. Civ. P. 12(b)(1) this court lacks subject matter jurisdiction to hear the Town's claims, that the Town does not have standing to bring this action, and that under Mass. R. Civ. P. 12(b)(6) the Town fails to plead sufficiently facts showing the elements to invoke the prior public use doctrine. A hearing on the motion to dismiss was held on March 7, 2018. After the hearing, the court granted the parties the opportunity to submit post-trial briefs.

On consideration of the pleadings, including the papers attached to and supporting the complaint and available as matter of public record, and the arguments of the parties made by their counsel at the hearing and in the briefs filed before and after the hearing, the court concludes that the Town's complaint survives the Defendants' Mass. R. Civ. P. 12(b)(1) challenge. The court, however, has no choice but to grant the Defendants' motion to dismiss, and to dismiss this action for "failure to state a claim upon which relief can be granted." Mass. R. Civ. P. 12(b)(6).

Defendants first urge the court to dismiss this case under Mass. R. Civ. P. 12(b)(1) because the Town in its counts for declaratory and injunctive relief does not cite an independent statutory basis for the Land Court's jurisdiction (and because G.L. c. 231A does not grant an independent statutory basis for standing). The defendants argue that there is no precedent establishing, where the prior public use doctrine is implicated, an independent basis for standing for a municipality to bring an action of this kind before the Land Court. Defendants urge this court to rule that it lacks subject matter jurisdiction over this case.

I recognize that it is "settled that G.L. c. 231A does not provide an independent statutory basis for standing." Pratt v. Boston, 396 Mass. 37 , 42-3 (1985). "The limitation does not mean," however, "that another statute must expressly provide jurisdiction before a declaratory judgment action may be brought." Villages Dev. Co. v. Secretary of Exec. Office of Envtl. Affairs, 410 Mass. 100 , 110 (1991). To assert a claim under the declaratory judgment statute, G.L. c. 231A, a plaintiff needs to "specifically set forth" an actual controversy—in other words, a plaintiff must have standing. G.L. c. 231A, § 1; see also Bonan v. Boston, 398 Mass. 315 , 320 (1986).

Indeed, the Town's standing appears at the precipice of adequacy; however, at this early stage I am not prepared to dismiss the case for lack of standing. I conclude that Board of Selectmen of Braintree v. County Commissioners of Norfolk, 399 Mass. 507 (1987) ("Braintree") implicitly confers standing on a town, in otherwise appropriate cases, to bring a claim under the prior public use doctrine. In Braintree, a federal district court had ordered the County Commissioners ("Commissioners") in Norfolk County to redress overcrowded conditions in the county house of correction. The Board of Selectmen of Braintree ("Board") sued, seeking to enjoin the Commissioners from acting in response to this directive by changing the use of a portion of a county hospital to correctional facility use. The Commissioners decided to use part of a county medical facility, which had been established by special legislation in the early twentieth century as a tuberculosis hospital, to a new use–to provide additional jail space. Ruling that legislative approval was required to make such an inconsistent use, the Supreme Judicial Court ("SJC"), reviewing the actions of the Superior Court where the litigation had been filed, relied squarely on the prior public use doctrine.

Acknowledging that the court in Braintree did not explicitly discuss whether a town has standing to bring a prior public use claim, and by what procedural mechanism the municipality properly may seek judicial relief, I find it significant that the SJC did not question or raise in any manner the town's standing to bring its case. Although it would appear that the question of Braintree's standing to seek remedies in the trial court was not directly raised by the parties, the question of standing is, generally speaking, a threshold one, which may (and, indeed, should) be raised by courts, both trial and appellate, at any stage and on the court's own initiative. Because I decide that the SJC in Braintree ought have addressed any municipal lack of standing to sue based on claims of violation of the prior public use doctrine, and yet the SJC did not embark on any discussion of the issue, I treat the SJC as having no jurisdictional concern about the ability of a city or town to bring forward these claims in court. Given the similarity in the posture of the Braintree case and the one before me, I find no reason to order dismissal of the pending case based on any lack of standing on the part of the Town. [Note 2]

Nonetheless, turning to another of the Defendants' requested grounds for dismissal, I conclude that the Town has not alleged in its complaint any plausible basis for relief of the sort this court legally may provide. The standard under Mass. R. Civ. P. 12(b)(6) is indulgent in favor of the plaintiff, as it ought to be when dismissal on the merits is sought at the early stage of litigation. But not every complaint is entitled to survive even given this forgiving standard of review. When filing a complaint "a plaintiff's obligation to provide the 'grounds' of [its] 'entitle[ment] to relief' requires more than labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636, (2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). A motion to dismiss will be granted only where it appears with certainty that the nonmoving party is not entitled to relief under any combination of facts that it could prove in support of its claims. See Spinner v. Nutt, 417 Mass. 549 , 550 (1994); Flattery v. Gregory, 397 Mass. 143 , 145–6 (1986).

The fundamental inquiry begins with the legal elements of the cause of action the plaintiff has advanced. The common law doctrine of prior public use, "firmly established in our law," requires plain and explicit legislation authorizing the diversion of public lands devoted to one public use to another inconsistent public use. Robbins v. Department of Pub. Works, 355 Mass. 328 , 330 (1969) ("public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion"); Higginson v. Treasurer & Sch. House Commissioners. of Boston, 212 Mass. 583 , 591 (1912) ("land appropriated to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation to that end."). Recently, the SJC stated that the doctrine of prior public use, while applied more "stringently" to parkland, is not exclusive to parks. Smith v. Westfield, 478 Mass. 49 , 61 (2017).

Here, the Town contends that the diversion of MBTA's ROW from its explicitly-authorized use, long inactive, for rail transportion--to an underground utility line, installed, operated, controlled, and maintained by Eversource [Note 3] --violates the prior public use doctrine, because such a diversion of public use from its original sanctioned purpose requires explicit legislative approval. The Town contends that the acquisition of rights in the ROW held by the MBTA was for a confined purpose–the operation of a railroad up and down the ROW line. The Town argues that laying high tension electrical service under the dormant railroad ROW is fundamentally inconsistent with the ROW's use for the only public purpose ever approved.

The Defendants' chief contention is that, even if all that were so, the complaint still requires dismissal, because the challenged use (for power lines buried under the ROW) is a use that will be undertaken and maintained by Eversource. The Defendants argue that because Eversource is not a public entity to which the prior public use doctrine lawfully may be applied by the courts, the Town's complaint is fatally deficient.

The Town acknowledged at oral argument that there is no reported decision of our appellate courts which applies the prior public use doctrine to redress a subsequent use carried out by a private entity. Even so, the Town maintains that this court should apply the doctrine here, because a failure to apply the prior public use doctrine in this case would be illogical and would defeat the fundamental purpose of the doctrine.

I am left to consider whether, despite the absence of any prior instance in which the courts have stepped in and applied this common law doctrine to the diversion of a publically authorized use of land to an inconsistent use carried out by a non-public entity, this court ought to employ the prior public use doctrine to Eversource's utility line project. I am being asked to extend the doctrine, as it has been defined and applied by our appellate courts for generations, to a fact pattern in which the doctrine never before has been invoked successfully, and in circumstances that fall outside the doctrine as it has been laid out in the teaching of many opinions of the SJC and our Appeals Court.

I conclude that it is inappropriate for this court to take such a large leap forward. I do so recognizing that there is some reason to doubt whether there are valid reasons for drawing a judicial line that prevents redress when a prior approved public use becomes converted to a different and unauthorized use, but the second user is not a public entity. I agree that, in a broad sense, the courts might feel some need to play a role when there is a change in use altering a public use to another inconsistent use without legislative authorization, even when the succeeding and inconsistent use is a private one. There is some appeal to the argument that such a fact pattern ought to be treated as within the "spirit" of the prior public use doctrine as it now exists. I am not, however, willing to alter or expand in a momentous way such a long-standing doctrine, the legal elements of which have been laid out firmly and repeatedly in many authoritative decisions of our higher courts. Those many cases consistently require as an element of any challenge based on the prior public use doctrine that the later use, alleged to be inconsistent with the prior authorized use, be undertaken as a public use.

The doctrine of prior public use first was articulated over a hundred years ago, and the essential language of the cases—including that insisting upon a subsequent public use—has been carried forward each time an appellate court is confronted with such a challenge. See, e.g., Boston v. Inhabitants of Brookline, 156 Mass. 172 , 175 (1892) ("There is no doubt that land devoted to one public use may be taken by authority of the legislature for another public use"); Higginson v. Slattery, 212 Mass. 583 , 591 (1912) ("Land appropriated to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation to that end"); Needham v. Norfolk County Commissioners, 324 Mass. 293 , 296 (1940) (same, citing Higginson, 212 Mass. at 591); Robbins v. Department of Pub. Works, 355 Mass. 328 , 330 (1969) ("The rule that public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion is now firmly established in our law"); Smith v. City of Westfield, 478 Mass. 49 , 60 (2017) (same) (quoting Robbins, 355 Mass. at 330) (emphases added). As I have said, over the many years the prior public use doctrine has flourished in our common law, there is not any example uncovered by counsel or the court of the rule being applied where the ensuing challenged use is a private one undertaken by a non-public actor.

While trial courts in our common law tradition have an important role to play is expanding incrementally the reaches of doctrines arising under that common law, I conclude that it is not within this trial court's prerogative to expand this long-established doctrine in this case. The change sought by the Town is broad enough, and so likely to widen the reach of the doctrine to a host of circumstances and defendants [Note 4], that such a modification of the law best would come from our appellate courts. The Town can ask those appellate courts to consider whether this might be an appropriate occasion for such a momentous expansion.

A court can dismiss a complaint under Mass. R. Civ. P. 12(b)(6) only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96 , 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "[T]he allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Nader, 372 Mass. at 98. Even taking all allegations in the Town's complaint as true and drawing all inferences in the Town's favor, the court cannot get by the fact that Eversource is a private corporation, and cannot reconcile that with the doctrinal requirement that the challenged subsequent use be a public one. The Town puts forth great effort to paint the Project as one of public use. The Town does so by pointing out that regulatory agencies such as the Energy Facilities Siting Board and the Department of Public Utilities must find that these kinds of projects serve a "compelling public use and purpose." The Town observes that, in those fora and elsewhere, Eversource has painted this as a project that will afford public benefits, both with respect to the power grid enhancements and, later, a bicycle recreational trail in concert with DCR. Eversource's legal status as a private corporation, and the inherent differences between Eversource and a governmental agency, cannot be ignored. That a utility, owned by its shareholders, is subject to considerable public oversight does not make it a public entity for purposes of the legal doctrine on which Plaintiff relies. Nor does the fact that a utility such as Eversource only can proceed to build and operate power lines with the approval of public regulatory agencies, and has its rates reviewed in a public manner. And whether the focus of the prior public use doctrine is on the public nature of the challenged use or of the actor undertaking that use, the doctrine as it now is defined in our common law does not extend as far as the facts alleged in the Town's complaint.

Mindful that dismissal at this early stage of a proceeding is disfavored and rarely appropriate, I am obliged to decide that the case at bar is one in which "plaintiff can prove no set of facts in support of [its] claim. . . ." I must rule that the Town has not stated a claim upon which relief can be granted and that dismissal under Mass. R. Civ. P. 12(b)(6) is required.

Defendants' motion to dismiss is ALLOWED.

Judgment accordingly.

So Ordered.


[Note 1] Plaintiff originally filed its complaint on September 27, 2017. Defendant MBTA filed a motion to dismiss on October 23, 2017. At the case management conference on November 1, 2017, Plaintiff reported its intention by November 17, 2017 to file an amended complaint to join Eversource as a proper party and to address Plaintiff's standing.

[Note 2] In reaching this conclusion, I need not take up the alternative grounds advanced by the Plaintiff in support of its standing to bring this litigation–including that land owned or controlled by the Town in the vicinity of the ROW may suffer adverse consequences as a result of the plan to allow Eversource to lay its high voltage lines under the route of the former railroad.

[Note 3] I need not and do not dwell on the additional use contemplated for the ROW, a proposal later to put in place on the ROW's surface a bicycle path to run over the inactive rail line. This plan is less well-developed than the Eversource power line project, and would come about only after the utility concluded its installation of the high-tension wires underground. Because I conclude that the court cannot hear this case as to the Eversource project, the activity challenged directly in this suit, I do not proceed any further.

[Note 4] The court with little effort can observe that at both the local and state level, transfers of government-owned property to private ownership happen with frequency, and at least at times in cases where the land's title was acquired by the public owner for an express public purpose which may be at odds with the private grantee's ensuing use. If this court were to follow the approach advocated for by the Town, those many transfers of public land to private ownership and use would fall within the prior public use doctrine, and give rise to a significant number of lawsuits challenging the public disposition of the real estate. It is notable that this not uncommon scenario has not worked its way into any of the reported decided prior public use cases that counsel have found.