MISC 18-000596

March 19, 2019

Middlesex, ss.




This action was commenced by plaintiff Town of Concord ("Concord") with the filing of a complaint on November 8, 2018 against the defendant Littleton Water Department ("LWD") [Note 1] seeking a declaration as to the extent to which LWD's claimed right to withdraw water from Nagog Pond pursuant to Chapter 201 of the Acts of 1884 ("the 1884 Act"), § 10, has been superseded by the Water Management Act, G.L. c. 21G ("WMA"), and, more particularly, the extent to which Concord's registration of rights under the WMA negates LWD's rights under the 1884 Act. On January 3, 2019, LWD filed the instant motion: Defendant's Motion To Dismiss Under Mass. R. Civ. P. 12(b)(1) For Lack Of Subject Matter Jurisdiction ("the Motion"). The Motion was originally based on three arguments: (1) that, the action raising a dispute about water, not any "right, title or interest in land," this court lacks jurisdiction under G.L. c. 185, § 1(k); (2) that the 1884 Act designated the Supreme Judicial Court, not this court, is the arbiter of disputes such as this one; and (3) that Concord would not be prejudiced by a dismissal of this action.

By judgment dated February 4, 2019, the Supreme Judicial Court dismissed, without prejudice, a complaint filed by the Town of Littleton ("Littleton") against Concord pursuant to the 1884 Act entitled Town of Littleton v. Town of Concord, Docket No. SJ-2018-572. As a result, at a hearing on the Motion held on March 14, 2019, LWD limited its motion to the first ground: whether this court has jurisdiction over this action under G.L. c. 185, § 1(k). For the reasons set forth below, the Motion is denied.


Concord's complaint alleges that, because of its anticipated water needs, it petitioned the state legislature in the late 19th Century for authorization to withdraw water from Nagog Pond, a fresh water pond located along the border of the towns of Littleton and Acton. Complaint ¶¶ 4-5. In 1884, the General Court passed An Act to Authorize the Town of Concord to Increase its Water Supply, which gave Concord authorization to withdraw water from Nagog Pond and to undertake acquisitions by eminent domain to support its water withdrawal efforts. Complaint ¶ 6 and Ex. A.

In 1909, Concord Town Meeting authorized the Concord Water and Sewer Commission "to take and hold the waters of Nagog Pond, … and to also take and hold by purchase or otherwise all necessary land, water rights, rights of water and easements for raising, holding, diverting, purifying and preserving such waters." Complaint ¶ 8. Thereafter, Concord recorded an instrument of taking in the Middlesex Registry of Deeds, Book 3457, Page 221. Complaint ¶ 9; see also Defendant's Appendix In Support Of Motion To Dismiss Under Mass. R. Civ. P. 12(b)(1) For Lack Of Subject Matter Jurisdiction ("D. App."), Tab 3. [Note 2] Concord started withdrawing water from Nagog Pond in September, 1909. Complaint ¶ 13.

Since 1909, Concord has periodically obtained other parcels on Nagog Pond to support its water supply infrastructure, installed an intake pipe and a dam to hold the water in Nagog Pond, and constructed a pump house, water mains, and an ozone treatment facility. Complaint ¶¶ 10, 12, 49. Concord is presently in the process of replacing the intake pipe and constructing a new water treatment plant. Complaint ¶ 51. This work is projected to cost in excess of $20 million. Complaint ¶ 59.

In the late 1970s, the Massachusetts Senate Special Legislative Commission on Water Supply ("the Commission") was established to address concerns that the availability of the water supply in the Commonwealth could no longer be assumed. Complaint ¶ 16. As part of its work, the Commission conducted a study to assess what actions, if any, the Commonwealth should take to ensure that water needs were met. Id. The Commission issued a study, 1983 Senate Doc. No. 1826, Report of the Special Commission Established to Make Investigation and Study Relative to Determining the Adequacy of the Water Supply of the Commonwealth ("the Report"). Id. and Ex. B.

The Report highlighted the interconnection of ground and surface waters as a single hydrologic system, and the consequent inability of local authorities that have geographically limited powers to address issues or remedy problems inherent in the regional span of water sources. Complaint ¶ 17. The report recommended regulation of water withdrawals at the state level through the adoption of comprehensive new legislation, the WMA. Id. Massachusetts adopted the WMA in 1985, Complaint ¶ 18, and the Massachusetts Department of Environmental Protection thereafter adopted regulations to establish "a mechanism for managing ground and surface water in the commonwealth as a single hydrologic system …" ¶ 19.

The WMA and DEP's regulations reflect a comprehensive two-tiered system of registrations and permits for the management of withdrawals of water in excess of 100,000 gallons per day (gpd) from river basins throughout the Commonwealth. Complaint ¶ 20. Users who consistently withdrew 100,000 gpd or more were able to "file a registration statement" on or before January 1, 1988 setting forth their "existing withdrawal," based on measured withdrawals between 1981 and 1985. Complaint ¶ 22. If a user timely filed its registration statement and timely renewed it thereafter, the user could continue forever to withdraw water at the rate of the existing withdrawal established in its initial registration, absent a state of emergency. Complaint ¶¶ 22-23.

Unregistered users, either because new or because their withdrawal rate exceeds their registered withdrawal rate, can apply for a WMA permit from DEP. Complaint ¶ 24. Unlike registered withdrawals, withdrawals pursuant to permits issued by DEP can be conditioned on a variety of factors, including the impact of the proposed withdrawal on other hydrologically interconnected water sources. Complaint ¶ 25.

Concord timely filed its registration statement before the January 1, 1988 deadline, documenting its historic use of Nagog Pond. Complaint ¶ 32. Concord sought registration of an aggregate 2.1 million gallons per day (MGD) for its six historic water withdrawal resources, including Nagog Pond. Complaint ¶ 33. DEP issued Concord a registration for Nagog Pond on May 30, 1991 and Concord has timely renewed its registration since then. Complaint ¶¶ 34-35.

The withdrawal from Nagog Pond as set forth in Concord's registration statement is .89 MGD. Complaint ¶ 36. Although it has not been adopted as a formal condition of Concord's use of Nagog Pond, a recent U.S. Geological Service ("USGS") study estimated the firm yield of Nagog Pond, with no releases, to be .86 MGD. Complaint ¶ 44. Using the USGS firm yield estimate, there is no remaining available volume of water for another user to receive a permit for a separate withdrawal from Nagog Pond. Complaint ¶ 46.

In contrast to Concord, LWD has never been authorized to take the waters of Nagog Pond, has never taken the waters of Nagog Pond, did not seek to exercise any withdrawal rights to Nagog Pond under the 1884 Act prior to the enactment of the WMA, and did not attempt to exercise withdrawal rights during the 1981-1985 period used to establish registration rights under the WMA. It did not submit any comments on Concord's WMA registration statement to limit or condition Concord's registration in an effort to preserve whatever rights LWD might have to withdraw water from Nagog Pond, and, while referencing the 1884 Act in its own registration statement for four groundwater wells in Littleton, did not assert any active use of Nagog Pond. Complaint ¶¶ 61-66.

By letter dated February 20, 2018, LWD purported to give notice to Concord of LWD's intent to exercise the full extent of rights conferred by the 1884 Act to withdraw water from Nagog Pond. Complaint ¶ 73. Since that time, Concord and LWD have had a series of exchanges in writing and in person in which the parties have outlined their respective positions, without arriving at a consensus. Complaint ¶¶ 73-100. This action was commenced on November 8, 2018, and Town of Littleton v. Town of Concord, supra, was commenced in the Supreme Judicial Court on December 7, 2018.


In the Motion, LWD argues that this court's equity jurisdiction over actions "where any right, title or interest in land is involved," G.L. c. 185, § 1(k), does not confer jurisdiction over this action because the 1884 Act involves "water" and "water rights," not land, and because the WMA similarly concerns water, not land. Motion at 8-9. LWD's argument is at odds both with the long history of case law in this Commonwealth recognizing interests in water as interests in real property and with the language of the 1884 Act. This court has jurisdiction under § 1(k) to adjudicate the claims asserted by Concord here.

Rule 12(b)(1), Mass. R. Civ. P., allows the defense of lack of jurisdiction over the subject matter of an action to be brought, at the option of the pleader, by motion. "Subject matter jurisdiction is 'jurisdiction over the nature of the case and the type of relief sought.'" Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 520 (2007), quoting from Black's Law Dictionary 870 (8th ed. 2004). Lichoulas v. City of Lowell, 78 Mass. App. Ct. 271 , 277 (2010). For purposes of analyzing a motion brought pursuant to Rule 12(b)(1), the court accepts as true the factual allegations contained in the complaint as well as any favorable inferences reasonably drawn there from. Sullivan v. Chief Justice for Admn. & Mgmt. of the Trial Court, 448 Mass. 15 , 20-21 (2006). Opare's Case, 77 Mass. App. Ct. 539 , 540 (2010).

In the case at bar, the issue pressed by Concord is whether its right to take water from Nagog Pond pursuant to the WMA is superior to Littleton's claimed right to take water from Nagog Pond pursuant to the 1884 Act. There can be no doubt that the right to take water is an interest in real property. In 1866, in Goodrich v. Burbank, 12 Allen 459 , the then-named Supreme Court of Massachusetts recognized the existence of a right in gross to take water from a spring. In doing so, the court noted that "[t]he right to take water from a well or spring is held to be an interest in land," and that "[t]he water itself may not be the subject of property, but the right to take it … is an interest in the realty, assignable, descendible and devisable." 12 Allen at 463. In its decision, the Goodrich court made reference to case law involving grants of the use of water for purposes of hydropower:

We have many cases in our own reports which recognize the right to take a certain quantity of water from a mill pond as a distinct and substantive subject of grant, without restriction as to its use at any designated place. Rights of water duly granted by deed, not appurtenant to any particular parcel of land, may be used by the owner at any place or in any manner, so long as he does not interfere with or impair the rights of others. We are unable to distinguish between the right to take water by a canal from a pond for the purposes of power, and the right to take it from a spring in a pipe for domestic purposes, the watering of cattle, to supply an artificial jet or fountain, and to sell it to others for any uses they may desire to make of it.

12 Allen at 462 (internal citations omitted).

In other cases, the courts of this Commonwealth have described as property interests the right to take ice from a pond, Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463 , 467 (1904) ("Strictly speaking, a right to cut and take ice is perhaps more in the nature of a profit à prendre than an easement, though it comes within the definition of an easement which was given by Chief Justice Shaw in Ritger v. Parker, 8 Cush. 145 , 147, and which was quoted with approval by the court in Owen v. Field, 102 Mass. 90 , 103."); the right to a flow of water to a cranberry bog, Lowell v. Piper, 31 Mass. App. Ct. 225 , 231 (1991) ("we conclude that the plaintiffs' easements give them the right to use the water and electric systems to maintain and regulate the flow of water in the cultivation of their bog."); and the prescriptive right to foul the waters of a stream, Martin v. Gleason, 139 Mass. 183 , 188 (1885) ("A prescriptive right to foul the waters of a stream is included under the term ‘water-rights.'").

There is also a well-developed body of law regarding the rights of owners of lands on the banks of water courses relating to the water, its use, and ownership of the soil under the water body. See, e.g., Cary v. Daniels, 49 Mass. 466 , 476 (1844) ("the owner of land, through which a steam of water passes, has a right to the run of the water in its natural channel through his land; that a grant of the land, primâ facie, and without express reservation, is a grant of such right"); Lynnfield v. Peabody, 219 Mass. 322 , 331 (1914) (holding that owner of the bed of a pond held certain exclusive rights to the water of the pond, subject to the rights of other riparian owners and the public, stating, "Property in the water of a flowing stream, or in any large pond or lake which has a flowing stream for its outlet, is at best of a precarious nature. Such water is hardly susceptible of absolute ownership or of any other than a usufructuary right, capable of enforcement and enjoyment only while it remains within the domain of its possessor.").

Turning to the language of the 1884 Act, § 2 thereof gives to Concord the right to "take and hold the waters of Nagog Pond … and the waters which flow into and from the same." Concord "may also take and hold … all necessary lands for raising, holding, diverting, purifying and preserving such waters." Id. Pursuant to § 4, "[w]ithin ninety days after the time of taking any lands, water or water courses as aforesaid, otherwise than as by purchase, the town shall file in the registry of deeds for the southern district of the county of Middlesex a description thereof sufficiently accurate for identification …." Section 7 requires Concord to pay all damages sustained by any person as a result of Concord's taking of "any land, right of way, water, water source, water right or easement." Section 10 of the 1884 Act, on which LWD relies here, provides that "[n]othing contained in this act shall prevent the town of Acton nor the town of Littleton from taking the waters of said Nagog Pond whenever said town or either of them may require the same for similar purposes."

Authorization to take water, as was granted to Concord, Acton and Littleton under the 1884 Act, is the grant of an interest in real property. And the relief sought by Concord—a determination that Littleton's right to take water has been lost—squarely raises an issue involving a "right, title or interest in land" within this court's subject matter jurisdiction under G.L. c. 185, § 1(k). [Note 3]


For the foregoing reasons, Defendant's Motion To Dismiss Under Mass. R. Civ. P. 12(b)(1) For Lack Of Subject Matter Jurisdiction is DENIED.

By the Court.


[Note 1] The court notes that G.L. c. 40, § 2 provides that a town may sue and be sued in its own name. Concord has not named Littleton itself, but LWD. In determining whether LWD is the proper party defendant in this proceeding, Concord should look to the applicable town bylaw. If LWD is not, the proper party should be substituted. See Board of Public Works v. Board of Selectmen, 377 Mass. 621 , 624 (1979) ("It is conventional learning that a municipal department is not permitted to bring suit for the town without specific authorization from the town or from agents entitled to act for it—unless, indeed, there is governing legislation conferring the power on the department.").

[Note 2] "A judge, and logically a reviewing court, may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion." Audoire v. Clients' Sec. Bd., 450 Mass. 388 , 390 n.4 (2008).

[Note 3] Although not necessary to this court's decision on the Motion, it bears noting that, as argued by Concord, at least one trial court judge has determined that "[a]ny grandfathering of historic levels of groundwater withdrawal under the WMA 'concerns' the authorization of the 'use … of real property' for wells and/or pumping facilities." Town of Wellesley Dep't of Pub. Works, Water Div. v. Mass. Dep't Of Envtl. Prot., Docket No. NOCV2017-1944, 2018 Mass. Super. LEXIS 68 (2018). To the extent that the WMA implicates real property rights, a request that this court interpret the scope of Concord's rights pursuant to its registration under the WMA may provide an additional basis for the assertion of jurisdiction by this court.