TOWN OF ASHLAND, by and through its Board of Selectmen vs. NSTAR GAS COMPANY, d/b/a Eversource Energy

NSTAR Gas Company, doing business as Eversource Energy ("Eversource"), owns and operates a gas pipeline (the "Existing Pipeline") that traverses portions of Ashland, Massachusetts. The pipeline lies within a corridor of 30-foot-wide easements that Eversource's predecessor in interest, Northeastern Gas Transmission Company ("NGTC"), obtained in 1951.

One of the 1951 easements crosses a property at 0 Metropolitan Avenue in Ashland. NGTC obtained that easement under an April 1951 Agreement for Right of Way signed by Edith P. Stone and Frank D. Stone (the "Stone Easement"). In pertinent part, the Stone Easement grants NGTC

the right, privilege, and authority to lay, construct, maintain, operate, alter, repair, remove, change the size of and replace a pipe line (with fittings and appliances, including Cathodic Protection equipment) for the transportation of oil, gas, petroleum products or any other liquids, gases or substances which can be transported through a pipe line by a route or routes which the Grantee [NGTC] shall have the right to select, change and alter under, upon, over and through lands which the Grantor [the Stones] owns or in which the Grantor has an interest . . . . [NGTC] shall have all other rights and benefits necessary or convenient for the full enjoyment or use of the rights herein granted, including, but without limiting the same to, the free right of ingress and egress over and across said lands . . . .

The Grantor, his successors, heirs or assigns, reserves the right to fully use and enjoy the said premises subject to the rights, privileges and authority herein granted and confirmed; provided, however, that [NGTC] shall have the right from time to time to cut and remove all trees, undergrowth and other obstructions that may injure, endanger or interfere with the construction and use of said pipe line or fittings and appliances appurtenant to said line.

[NGTC] agrees to pay for any damage to crops, timber and existing improvements which may be caused the Grantor by [NGTC] laying, constructing, maintaining, operating, altering, repairing, removing, changing the size of and replacing said pipe line.

Another part of the Existing Pipeline crosses a different Ashland property, this one at 0 Prospect Street. NGTC obtained its easement over 0 Prospect Street (the "Taken Easement") pursuant to a July 13, 1951 Order of Taking approved by the Massachusetts Department of Public Utilities (the "Department") in Petition of Northeastern Gas Transmission Company, D.P.U. 9582 (July 13, 1951) (the "DPU Decision"). The Order of Taking gave to NGTC rights that were similar to those the Stones had granted NGTC in the Stone Easement:

The perpetual and exclusive right and easement to enter upon and lay, construct, maintain, operate, alter, repair, remove, change the size of, and replace a pipe line (with fittings and appliances, including cathodic protection equipment), for the transportation of natural gas and by-products thereof under, upon, over, and through a strip of land consisting of a permanent easement thirty feet in width . . . and a temporary easement to be used as working space ten feet in width along both sides of and immediately adjacent and parallel to the aforesaid permanent easement . . . .

Also, the right to take all trees on said easements and to remove or cause to be removed, all trees, rocks, limbs, and other obstructions which, in the judgment of [NGTC], might endanger or interfere with the use of said easements, and the free right of ingress and egress over and across said easements, and the right to pass over the adjacent premises to and from said easements as reasonably required.

Order of Taking at 1-2. The Order of Taking further states:

In addition to all of the other rights and privileges which are reserved to the owners of the fee as a matter of law, there is expressly reserved the right to make every use of the land covered by said easements which will not unreasonably interfere with the use of said easements by [NGTC], and the owner of the fee shall have the right to place along and across said easements as many roads, streets, fences, sidewalks, passage ways, electric light and power lines, water lines, sewer lines, gas lines, telephone poles and telephone lines, and any and all other utilities as the owner of the fee may desire.

Id The Department also observed in its Decision (and page 2 of the Order of Taking provides) that NGTC

seeks the right to place only one pipe line under said permanent easement and said pipe line shall be buried to such depth that the pipe line will not interfere with the ordinary cultivation of said land. [NGTC] shall take reasonable measures to pack the backfill to prevent subsidence of the surface of said land, and shall remove all stakes or posts which may have been put into the ground, and generally restore the surface of the land to as nearly its original condition as may be practicable, including the leveling of all ruts and depressions caused by construction operations.

DPU Decision at 4 (emphasis added).

After acquiring its various easements, NGTC built within them the Existing Pipeline. The pipeline consists, throughout its length, of a single pipe. There are no other NGTC pipes within the easement corridor.

Eversource has petitioned the Commonwealth's Energy Facilities Siting Board ("EFSB") for approval to replace approximately 3.71 miles of the Existing Pipeline (the "Project"), including the parts of the pipeline that run beneath 0 Metropolitan Avenue and 0 Prospect Street. The Project calls for Eversource to install a new pipe, activate it, then immediately decommission the pipe that comprises the Existing Pipeline. Eversource proposes to purge the natural gas from the Existing Pipeline, cap it, and retire it "in place" - that is, leave it buried where it is today. At oral argument before this Court, Eversource stated that it wouldn't use the decommissioned Existing Pipeline, but said it would remain on Eversource's books as its property. But at no point during or after the Project will Eversource transport natural gas through more than one pipe within the easement corridor.

The current owner of 0 Metropolitan Avenue and 0 Prospect Street is the Town of Ashland. The Town obtained title to the properties via two separate tax takings that occurred long after NGTC built the Existing Pipeline. The Town filed suit in this Court in August 2019. In Count I of its complaint, the Town sought a declaration that Eversource' s easement rights don't include the power to leave a decommissioned pipe within the easements that cross 0 Metropolitan Avenue and 0 Prospect Street. (This is the only Trial Court of the Commonwealth that could issue such a declaration with respect to 0 Metropolitan Avenue, as it's registered land. See M.G.L. c. 185, § l(a½) (granting Land Court exclusive jurisdiction over "[c]omplaints affecting title to registered land").) In Count II of its complaint, the Town sought a peculiar injunction against Eversource. The Court will discuss that request later.

Eversource answered the Town's complaint. In February 2020, Eversource moved for summary judgment as to its easement rights, and the Town cross-moved for summary judgment on both counts of its complaint. This Court heard argument on the parties' motions in May 2020. The facts recounted earlier in this Decision are undisputed. But before turning to the parties' arguments, it's helpful to know what this case is not about. It isn't about whether the Project is a good idea. It isn't about whether natural gas is vital to the Commonwealth's economy, or whether burning natural gas unwisely contributes to global warming. It isn't about whether Eversource or the Town has conducted itself appropriately before the EFSB, or whether the EFSB should grant Eversource's pending petition. It isn't about whether leaving a decommissioned pipe below 0 Metropolitan Avenue or 0 Prospect Street would be in the public interest, or in the best interests ofEversource's customers, or in the best interests ofEversource's stockholders. It also isn't about whether leaving the pipe in place would minimize disturbance of wetlands on or near 0 Metropolitan Avenue and 0 Prospect Street.

Instead, the dispute before this Court simply is whether Eversource' s easements over 0 Metropolitan Avenue and 0 Prospect Street give it the right to leave a decommissioned pipe within those easements. The Court begins its analysis by recognizing that this case involves two types of easements. The Stone Easement is described in an Agreement for Right of Way signed by the Stones. It's thus an ordinary easement by grant. See Chamberlain v. Badaoui, 95 Mass. App. Ct. 670 , 674 (2019) (describing the components of easements by grant). The Taken Easement, on the other hand, is a product of the Order of Taking. As will be seen below, there are similarities in the way courts must interpret easements by grant and those obtained by eminent domain, but there are also differences. It's important to treat them separately.

The next step in the analysis is who bears the burden of proof. It turns out that, with respect to both easements in this case, it's the responsibility of the owner of the dominant estate (here, Eversource) to prove the rights it claims to have. See Martin v. Simmons Properties, LLC, 467 Mass. 1 , 10 (2014) (dominant owner has burden with respect to easement by grant); Westchester Associates, Inc. v. Boston Edison Co., 47 Mass. App. Ct. 133 , 136-137 (1999) (quoting Swensen v. Marino, 306 Mass. 582 , 583 (1940), placing burden of proof on the owner of a dominant estate, acquired through a DPU-authorized taking, to prove its use of the taken easement was "of the 'same amount and character' as authorized").

After that point of similarity, the principles that govern each type of easement diverge. If easement rights derive from deed or other negotiated document, then the meaning of that document, "derived from the presumed intent of the grantor" - here, the Stones - "is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). See also Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (applying Sheftel principles to easements). But when an easement has been taken from a landowner, the landowner's intentions are irrelevant. As Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 445 (1990) (citations omitted), observes:

The principles of interpretation designed to give effect to the express or implied intent of parties contracting for or acquiring an interest in land . . . are, in general, inapplicable to eminent domain proceedings. . . . The taking of private property for a public purpose may be accomplished without the consent of the owner. The owner's intent is irrelevant in determining the extent of an easement taken by eminent domain, and the intent of the governmental body is largely beyond the scope of judicial scrutiny.

Eversource contends that the Stone Easement should be read as granting the same rights as the Taken Easement, without regard to the Stones' intent. Eversource provides no authority for why that's so. There's also nothing in the Agreement for Right of Way itself that suggests that the parties intended to incorporate into that document whatever resulted from the later DPU Decision or its Order of Taking, or to make the Agreement subject to those later events. If NGTC deemed it essential in 1951 that the Stone Easement mirror whatever the anticipated DPU Decision was going to order, NGTC should have negotiated that with the Stones and included it in the Agreement for Right of Way. NGTC didn't do that.

This Court thus must interpret the Agreement for Right of Way according to its terms and the law that applies generally to easements by grant. The Court thus looks for the Stones' presumed intent, first in the words used in the Agreement for Right of Way,

"construed when necessary in the light of the attendant circumstances." When the language of the applicable instruments is "clear and explicit, and without ambiguity, there is no reason for construction, or for the admission of parol evidence, to prove that the parties intended something different." "[T]he words themselves remain the most important evidence of intention," but those words may be construed in light of the attendant circumstances and "the objective circumstances to which [the words] refer." "[T]he grant or reservation [creating an easement] 'must be construed with reference to all its terms and the then existing conditions as far as they are illuminating."'

Hamouda, 66 Mass. App. Ct. at 25-26 (citations omitted; brackets and emphasis in original), quoting Sheftel, 44 Mass. App. Ct. at 179; Cook v. Babcock, 61 Mass. (7 Cush.) 526, 528 (1851); Robert Indus. v. Spence, 362 Mass. 751 , 755 (1973); McLaughlin v. Selectmen of Amherst, 422 Mass. 359 , 364 (1996); and Mugar, 28 Mass. App. Ct. at 444.

The Agreement for Right of Way doesn't contain any provisions that expressly address Eversource's right to leave a decommissioned pipe within the easement. But two other facts are clear from the Agreement, and both show that the Stones didn't intend to grant NGTC and its successors the right to leave a decommissioned pipe within the easement. The first fact is found in the Agreement's declaration of purpose: to allow NGTC (and now Eversource) to build, maintain, and operate facilities "for the transportation of oil, gas, petroleum products or any other liquids, gases or substances which can be transported through a pipe line by a route or routes which [NGTC] shall have the right to select, change and alter under, upon, over and through" 0 Metropolitan Avenue. (Emphasis added.)

The American Heritage Dictionary of the English Language, 1365 (1976), defines "transportation" as "[t]he act of transporting." "Transport" in turn means "[t]o carry from one place to another; convey." Id At pages 9-10 of its Memorandum of Law in Support of its Motion for Summary Judgment, Eversource admits that once it decommissions the Existing Pipeline, it will be a "pipe line" no longer. (Instead, according to Eversource, those in the gas industry back in the 1950s, as well as today, would consider the decommissioned Existing Pipeline to be simply a "pipe.") The Existing Pipeline's role with respect to the use of the Stone Easement that the Stones authorized, for "transportation," will thus end. And Eversource has introduced no evidence that, as of 1951, the Stones understood, or should have understood, that the words "transportation" through a "pipe line" would entail, at a later date, leaving an obsolete, inactive "pipe" in the ground, or that leaving a pipe in the ground would be "necessary and convenient for the full use or enjoyment" of NGTC's rights to transport gas or other substances beneath 0 Metropolitan Avenue.

The second fact that's apparent from the Agreement for Right of Way is that NGTC and the Stones understood that the Existing Pipeline would not last forever. NGTC thus bargained for not only "the rights, privileges and authority to lay, construct, maintain, [and] operate" a "pipe line" and related facilities beneath 0 Metropolitan Avenue, but also the power to "alter, repair, remove, change the size of and replace" that "pipe line . . . ." (Emphasis added.) The Agreement's provisions regarding removal, changes to or replacement of pipe lines beneath 0 Metropolitan Avenue don't mention leaving unused "pipes" in place. Massachusetts law on easements by grant further teaches that if there is any doubt as to whether the express provisions of an easement include other, unexpressed rights, such "doubts are to be resolved in favor of freedom of [the servient estate] from servitude." Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967). That's because, under Massachusetts common law,

"[t]he person who holds the land burdened by a servitude is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement or profit. An easement is a nonpossessory interest that carves out specific uses for the servitude beneficiary. All residual rights remain in the possessory estate - the servient estate."

Martin, 467 Mass. at 14, quoting Restatement (Third) of Property (Servitudes) §4.9 comment c (2000). The terms of the Stone Easement show that the parties understood the Stones' residual rights:

The Grantor, his successors, heirs or assigns, reserves the right to fully use and enjoy the said premises subject to the rights, privileges and authority herein granted and confirmed; provided, however, that [NGTC] shall have the right from time to time to cut and remove all trees, undergrowth and other obstructions that may injure, endanger or interfere with the construction and use of said pipe line or fittings and appliances appurtenant to said line.

Eversource thus does not enjoy the right under the Stone Easement to leave a decommissioned pipe beneath 0 Metropolitan Avenue. The Court likewise holds, for slightly different reasons, that the Taken Easement doesn't give Eversource the right to leave a decommissioned pipe beneath 0 Prospect Street either. As noted earlier, one difference between interpreting an easement by grant and one obtained by eminent domain is that, when construing the latter type of easement, the servient owner's intentions are irrelevant. General Hosp. Corp. v. Mass. Bay Transp. Auth., 423 Mass. 759 , 764-765 (1996) (citations and footnote omitted), outlines some other differences, but one principle is common to both types of easements: the need to balance the purpose of the easement versus the servient owner's residual rights:

The meaning and scope of an instrument of taking, so far as it affects private rights in property, is a question of law. When deciding the scope of an easement taken by eminent domain, we must consider the language of the taking order and the circumstances surrounding the taking. When the language in a taking order is unclear, the scope of the easement should be resolved in favor of freedom of the land from the servitude. The scope of the condemnor' s use of the easement will be limited to the extent reasonably necessary for the purpose served by the taking, so that the landowner's right to use the easement area is as great as possible while remaining reasonably consistent with the purpose of the taking.

. . .

If the condemnor takes an easement, the [condemnee] owner retains title to the land in fee and has the right to make any use of it that does not interfere with the public use.

The problem with the Taken Easement (at least for Eversource) is that the "language of the taking order" (here, the Order of Taking) is virtually identical to that of the Agreement for Right of Way, and is equally unhelpful to Eversource. Like the Agreement, the Order of Taking contains no express provision concerning leaving discontinued pipes in the easement. Like the Agreement, the Order of Taking announces that its purpose is to facilitate the construction of a pipeline "for the transportation of natural gas and the by-products thereof' (emphasis added), and Eversource admits that decommissioned pipes transport nothing. Finally, like the Agreement, the Order of Taking contemplates that the pipe line's pipes wouldn't last forever, but the Order nevertheless gives the gas company only the rights to "alter, repair, remove, change the size of and replace a pipe line," without adding to that list "leave pipe behind," or words that even suggest that power.

Eversource fares no better when one looks at the circumstances surrounding the Order of Taking. The DPU Decision recounts NGTC's intent to build "[o]nly one pipe line" in the easement, for the transportation of natural gas and its byproducts, but doesn't discuss future decommissioned pipe lines or pipes. At pages 9-10 of Eversource's reply in support of its motion for summary judgment, Eversource argues that the DPU Decision reflects a second purpose for the 1951 taking besides facilitating the transportation of natural gas: "minimizing impacts both to the environment in general and to the property owner specifically." Eversource claims that one can glean such a purpose from an "express finding" to that effect in the DPU Decision, plus the "Department's application of its statutory authority to ensure that necessary utility infrastructure projects both minimize impacts to the environment and burdens on the affected property owner to the extent practicable."

Eversource reads too much into the DPU Decision, and engages in revisionist history. Eversource contends that the "express finding" is found in a single paragraph on page 2 of the DPU Decision. The paragraph follows a comment by the Department that, during the public hearing on NGTC's petition for an order of taking, objections were made "related principally to the question of damages." The DPU Decision then says this:

The petitioner's Chief Engineer testified that in the laying-out process, departures from a straight line between the source of supply and the points where local distributing companies take over are determined by several factors such as terrain congestion, railroad and highway locations, streams, ponds and rivers, rock ledges, etc. Control points are so selected and the intervening portions of the line between such control points laid out in such a way as to offer the least damage and inconvenience to land owners. On the lands where takings are petitioned for, the construction thereon would not necessarily deprive their owners from using their properties, nor would it forbid them the use, with certain reservations, of the lands to be taken in these proceedings. Any question of damages is not before us, the Department having no jurisdiction in this respect.

This paragraph contains no "finding" that the 1951 project minimized its environmental impacts or its impacts on property owners. It merely recounts the Chief Engineer's explanation for how NGTC selected its route, as part of an effort by the Department to appear to be responsive to objections over which the Department admitted it had no jurisdiction. What's more, the Department had no statutory obligation in 1951 to minimize the "environmental impacts," or the impacts to private property owners, of takings for gas-pipeline projects. The DPU Decision reports that NGTC petitioned for eminent-domain authority under the 1951 version of M.G.L. c. 164, §75C. That statute didn't contain then (and doesn't contain now) any language regarding the minimization of environmental or other impacts. See G.L. (Ter. Ed.) c. 164, §75C, as inserted by St. 1950, c. 462. The standard in the 1950s under §75C for authorizing a taking by eminent domain was merely whether the taking was "necessary" in order to build a gas pipe line and related infrastructure, provided that the line already had received a certificate of public convenience and necessity under the Federal Natural Gas Act. See id; see also G.L. (Ter. Ed.) c. 164, §75B, as inserted by St. 1950, c. 462; Tatten v. Department of Public Utilities, 330 Mass. 360 , 361-362 (1953) (describing relationship between §75C and the Act).

The "necessity" standard still governs grants of eminent-domain authority under §75C. See, for example, Tennessee Gas Pipeline Co., D.P.U. 92-62, 4 (1992). What's different now is that there's a separate statute, one found in the Massachusetts Environmental Policy Act ("MEPA"), that requires "[a]ny determination made by an agency of the commonwealth [to] include a finding describing the environmental impact, if any, of the project and a finding that all feasible measures have been taken to avoid or minimize said impact." M.G.L. c. 30, §61. The Massachusetts legislature didn't adopt MEPA, however, until 1972. See St. 1972, c. 781, §2. And Eversource has supplied nothing that suggests that the Department foresaw (and having foreseen, complied with) MEPA's requirements when approving the Order of Taking in 1951.

The Order of Taking thus does not have among its purposes the minimization of environmental impacts, and its protections for servient landowners are only those expressly stated in the Order or those provided under common law. The Court accordingly finds nothing in the circumstances surrounding the Order of Taking that would allow the Court to read into the Department's authorization of a taking for "only one pipe line" permission for a further taking, one for the final resting place of obsolete pipes.

The Court thus DENIES Eversource's motion for summary judgment, and GRANTS the Town's cross-motion for summary judgment on Count I of its complaint. The Town also has cross-moved for summary judgment on Count II of its complaint. There the Town seeks an injunction "forbidding Eversource from claiming rights adverse to the Town's ownership rights and from claiming rights inconsistent with the Easement which restricts use of the [easement] corridor to one and only one pipe line . . . ." An injunction prohibiting speech activities is a classic prior restraint, one that implicates both the First Amendment to the U.S. Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. See Shak v. Shak, 484 Mass. 658 , 661 (2020). "Because the prior restraint of speech or publication carries with it an 'immediate and irreversible sanction' without the benefit of the 'protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted,' it is the 'most serious and least tolerable infringement on First Amendment rights."' Id, quoting Nebraska Press Ass 'n v. Stuart, 427 U.S. 539, 559 (1976). A court may impose a prior restraint "only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there no alternative, less restrictive means to mitigate the harm." Shak, 484 Mass. at 661-662. Any order enjoining speech must rest on "detailed findings of fact" as to each of the three elements the court must consider. See Care & Protection of Edith, 421 Mass. 703 , 705 (1996); see also Shak, 484 Mass. at 664 (speculation "cannot justify a prior restraint").

The Town has provided no evidence on summary judgment (let alone undisputed evidence) as to any of the elements necessary to justify a prior restraint. In fact, had Eversource moved under Rule 12(b)(6), Mass. R. Civ. P., to dismiss Count II of the Town's complaint, the Court would have granted the motion, as the complaint doesn't allege any harm to the Town whatsoever from Eversource' s speech, let alone the type of harm that merits a prior restraint. The Court thus DENIES the Town's cross-motion for summary judgment on Count II of its complaint, and DISMISSES that count.

Judgment to enter accordingly.