Opinion
No. 11–P–202.
2012-06-25
Richard E. SWAN & others v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The current owners of fifty-five acres in Bridgewater (the Swans) filed an action in Land Court seeking to quiet title to their land. At issue is whether defendant Massachusetts Bay Transportation Authority (MBTA) owns a strip of land running through the Swans' parcel in a location formerly used as a railroad right of way. The MBTA claims title to this strip pursuant to a 1996 order of taking. On summary judgment, a Land Court judge dismissed the plaintiffs' action, and the Swans now appeal.
For the reasons detailed below, we reverse and remand.
In an effort expressly designed to shore up their claim of standing, the Swans induced the parties who sold them the property (Ruth D. Turski and Patricia Cahill) to join as plaintiffs. The judge concluded that these two additional plaintiffs did not retain any continuing interest in the property or in the outcome of this litigation, and he therefore concluded that they lacked standing to challenge the order of taking. Although these two parties have nominally joined the appeal, they have made no argument that the judge erred in concluding they lacked standing.
Background. The original railroad easement and its abandonment. In 1846, the Old Colony Railroad made a “location taking” for a railroad right of way across what is now the Swans' land. The parties agree that the 1846 taking gave the railroad only an easement, not fee ownership in the right of way. See Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 799–800 (2003), and cases cited. However, as set forth below, the parties each came to appreciate the nature of the railroad's interest only recently, and therein lies the source of the current dispute.
Tracks were laid over the right of way and long used, and ownership of the easement passed from one railroad to another, eventually coming to be held by the Penn Central Corporation. (Penn Central). By 1968, the railroad line had fallen into disuse and, during that year, the tracks were removed. On June 6, 1981, Penn Central formally abandoned its easement by filing a “notice of abandonment” with the town clerk. As the parties now agree, the abandonment of the easement meant that the respective owners of the land on either side of the right of way regained full title to the center line of the right of way.
Prior to the abandonment, the abutting owners already owned the underlying fee to the center line of the right of way, but this was burdened by the easement.
The 1982 transaction between Penn Central and the Commonwealth. Pursuant to an agreement dated April 20, 1982, the Commonwealth purchased various property holdings from Penn Central. This agreement purported to transfer fee ownership in the abandoned right of way to the Commonwealth. This was based on the Commonwealth's mistaken understanding that Penn Central had held fee ownership to the right of way in the area in question. As already noted, Penn Central owned only an easement there. Moreover, by the time of the 1982 transaction, Penn Central had abandoned that easement. As a result, the 1982 transaction did not transfer any property interest (fee or easement) in the abandoned right of way to the Commonwealth.
The 1996 order of taking. On June 27, 1996, the MBTA issued an order of taking to acquire fee title in the right of way, and it recorded the order of taking in the registry of deeds fifty-four days later. Compare G.L. c. 79, § 3 (requiring orders of taking to be filed within thirty days).
Because the MBTA itself understood (incorrectly) that the Commonwealth owned the right of way, the order of taking was directed against the Commonwealth, and the MBTA did not offer compensation. See St.1991, c. 33, § 47 (authorizing the MBTA to take property owned by the Commonwealth without paying compensation). The MBTA did not record the order of taking in the chain of title of the actual owners of the land (the Swans' predecessors in title), and those owners were not notified of the taking. The MBTA has not used the strip of land.
Recognizing that the order of taking was recorded late (and therefore potentially invalid), the MBTA made a second taking of the strip in 2004. However, that order of taking was expressly limited to taking any interests held by the Commonwealth at that time. Both parties appear to accept that the 2004 taking has no bearing on the outcome of this case, as evidenced by the absence of discussion of the 2004 taking in their appellate briefs.
An MBTA employee asserted that he once walked through the area, but he was unable to pinpoint whether this was before or after the 1996 taking.
The Swans' purchase. In March of 2000, the Swans purchased approximately forty-five acres on one side of the abandoned right of way from Patricia Cahill. This property (the Cahill parcel) was described by reference to a plan, but that plan was apparently not included in the summary judgment record. In August of 2001, the Swans purchased ten acres bordering the other side of the former right of way from Ruth Turski. This second parcel (the Turski parcel) was defined by reference to a plan dated January 15, 2001, that was filed with the deed (and included in the record). That plan inaccurately identified the abandoned right of way as owned by the Commonwealth. As a result of their two purchases, the Swans now own fifty-five acres that straddle the former right of way.
The Swans' assertion of ownership of the right of way. In March of 2003, the Supreme Judicial Court issued its decision in Rowley v. Massachusetts Elec. Co., 438 Mass. 798 (2003). That decision addressed the property law consequences of a railroad's abandonment of a right of way easement. In the wake of Rowley, the Swans came to believe that they owned the right of way here, and at some point in examining the ownership issues they learned of the 1996 order of taking.
They filed their quiet title action in September of 2005.
The summary judgment record establishes that Cahill and Turski first gained actual knowledge of the 1996 order of taking in September of 2005 (when the Swans told them). The record does not establish the date on which the Swans themselves first gained actual knowledge of the taking.
The summary judgment proceedings. In December of 2006, the plaintiffs moved for summary judgment. They argued that at the time the MBTA purported to take the land lying in the abandoned right of way, Cahill and Turski held full title to that land (a point that the MBTA does not dispute). They further argued that the order of taking was invalid as a matter of law because the MBTA had not complied with the requirements of c. 79, including the requirement that the order of taking be recorded within thirty days and the requirement that notice be sent to the owners of record at the time of the taking.
In January of 2007, the MBTA cross-moved for summary judgment, arguing that neither the Swans nor the former owners had any recourse to challenge the taking. Specifically, the MBTA argued both that no party had standing to challenge the order of taking and that the statute of limitations had run by the time this action was filed in 2005.
While the cross-motions for summary judgment were pending, the Supreme Judicial Court issued its ruling in Devine v. Nantucket, 449 Mass. 499 (2007). That case involved a situation broadly similar to the one presented here: a public entity had purported to take land without providing notice of the taking to the owners of record, and a subsequent purchaser was seeking to challenge the validity of the taking in the face of the public entity's statute of limitations and standing defenses. The court rejected those defenses in the specific circumstances presented there and invalidated the taking. Id. at 506–513.
In view of the potential import of the case to the issues pending before the court, the session clerk notified the parties that they could submit “short supplemental memoranda concerning the applicability of Devine v. Nantucket.” The parties submitted such briefs. The clerk's letter did not invite the parties to supplement the existing summary judgment record, and neither party sought to do so.
The judge eventually ruled in the MBTA's favor. He concluded that, upon any reasonable reading of the summary judgment record, the Swans had constructive notice of the 1996 order of taking at least by the time they purchased the Turski property in 2001. In his words: “The record in the case at bar only admits of one reasonable inference, namely that the Swans were, or ought have been, led by the record title to, and aware of, the 1996 Order of Taking at the time of their 2001 purchase.”
Based on that conclusion, the judge ruled both that the three-year statute of limitations had run by the time suit was filed in 2005,
An examination of the basis for this conclusion is reserved for the discussion section, infra.
and that the Swans lacked standing to challenge the validity of the taking.
Given that this action was filed more than three years after the date on which the judge determined the Swans had constructive notice of the taking, the judge did not resolve whether a three-year or six-month limitations period applied in the circumstances of this case. See G.L. c. 79, §§ 16 & 18. The parties have paid scant attention to this issue in their briefs.
The Swans sought reconsideration of that ruling, arguing that whether they should have discovered the 1996 taking when they purchased the Turski property was something not amenable to resolution on summary judgment. In support of their motion, they submitted the affidavit of their expert, William Hovey, who opined that—at the time the Swans purchased the property—a prudent title examiner would have examined only “the grantor schedules for Turski and Cahill during their period of ownership of only their land, and such grantor schedules did not, and would not reveal any taking of the lands of Turski and Cahill.” At the MBTA's urging, the judge struck the Hovey affidavit as both untimely and conclusory. He simultaneously declined to reopen his summary judgment ruling, reiterating his earlier conclusion that “prudent title examination, given the uncontested state of the record title at the time the Swans acquired their title in 2001 would have resulted in the Swans examining the record ownership of the [right of way] and understanding it was affected by the 1996 order of taking.” This appeal followed.
Discussion. Statute of limitations. The judge did not conclude that the Swans failed to file the action in a timely manner once they gained actual knowledge of the taking.
Nor did he conclude that the 1996 order of taking was recorded “in due course,”
In any event, as noted, the record does not establish when the Swans gained such knowledge.
and therefore that its recording—without more—provided the Swans with constructive notice of the taking. Rather, the judge concluded that the Swans otherwise had constructive notice of the 1996 order of taking when they purchased the Turski property in 2001. He based that conclusion on the fact that the plan incorporated into the Turski deed identified the Commonwealth as the owner of the right of way. The judge explained:
Here, as in Devine, the taking authority did not record the order of taking “as to be indexed in the grantor index under the name of the owner of record of the real estate affected at the time of the recording.” G.L. c. 184, § 25. Therefore, it would seem to follow from Devine that the MBTA did not record the order of taking “in due course.” Devine left open the possibility that a recording that did not meet the express terms of the “due course provision” might nevertheless be deemed sufficient to start the running of the statute of limitations clock if the taking authority had used reasonable diligence in locating the record owner of the land in question. 449 Mass. at 508–509. In that vein, the MBTA argued below that it reasonably believed that the Commonwealth was the owner of the strip at the time of the taking, because the Supreme Judicial Court had not yet issued its decision in Rowley (an argument that lies in some tension with the MBTA's argument on appeal that Rowley broke little, if any, new doctrinal ground). The judge did not reach the question of whether the MBTA conducted a reasonably diligent search for the record owners of the land at the time of the taking and we decline to reach that issue.
“Title examination at the time of the Swans' purchase should have, under any reasonable view of the record title facts, paid attention to the state of title of the Right of Way, on which the conveyed land bounded, and by which it was described with reference to the recently prepared January 2001 plan. It was incumbent upon the buyers to take note of the referenced plan's attribution of ownership of the disputed Right of Way to the Commonwealth, and to seek out the relevant recorded instruments bearing on the identity of the true owner of the strip. This strip was land abutting the parcel Turski was granting to the Swans, and the record sufficiently shows that determination of the title to this abutting strip was an integral part of the steps prudent conveyancing practice would require in such a transaction. Any such search, if diligent in the least, would have found the recorded 1996 Order of Taking. It [presumably, the 1996 order of taking] was the obvious source, in the Registry of Deeds, of the Commonwealth's claim of title to the former railroad track which bordered the parcel the Swans were acquiring.”
The judge correctly concluded that the deed for the Turski parcel put the Swans on constructive notice of the Commonwealth's historical claim of ownership of the right of way. See Jackson v. Knott, 418 Mass. 704, 712 (1994). However, it does not necessarily follow that the Swans thereby had constructive notice of the 1996 order of taking. Indeed, for all that appears on the summary judgment record, the Swans mistakenly believed that the Commonwealth owned the right of way at the time they purchased the Turski property. Based on that erroneous understanding, the Swans had no obvious reason to search the Commonwealth's chain of title to see if some other public entity might have taken the Commonwealth's property five years earlier.
At least without further explanation, it is not clear why the Swans would research title to land they did not think they were buying.
The source of the Commonwealth's claim of title was the 1982 transaction between the Commonwealth and Penn Central, not the 1996 order of taking.
To the extent that the judge relied on his view that the Swans should have uncovered the 1996 order of taking (even though the order of taking was not recorded “in due course”),
the judge does not identify any authority to support that view. See Fall River Sav. Bank v. Callahan, 18 Mass.App.Ct. 76, 82–83 (1984) (upholding a judge's ability to rely on legal texts and articles with regard to proper conveyancing practices). Nor does the judge cite to title standards or other “expressions of professional opinion” included in the summary judgment record. See ibid.
Compare Devine, 449 Mass. at 511 (characterizing an order of taking that is not filed in due course as “invisible to anyone conducting a reasonable title search”).
To the extent that the judge relied on his considerable background expertise as to proper conveyancing practices, such reliance left the Swans without an opportunity to challenge the basis of his ruling.
At oral argument, the MBTA argued that the judge's conclusions were supported by the affidavit of its title expert, Michael H. Marsh. That affidavit appended a title abstract that traces the 1996 order of taking back to a common owner of the Swan property in the 1800's. However, the Marsh affidavit does not actually take on the issue of whether the Swans should have uncovered the 1996 taking through a diligent title search. This is hardly surprising given that the MBTA submitted this affidavit prior to the publication of Devine, and prior to the issue of constructive notice coming to the fore.
Regardless of whether the MBTA eventually will be able to show that the Swans had constructive notice of the 1996 taking by 2001, we do not believe this has been established as a matter of law on the current summary judgment record. Instead, the issues need further development on remand. We emphasize that we draw that conclusion without relying on the Swans' late-filed expert affidavit, and we do not reach the question of whether the judge properly struck that affidavit.
Standing. The judge appears to have assumed that, under Devine, the Swans would have standing to challenge the validity of the taking if they had neither actual nor constructive notice of the 1996 order of taking when they purchased the property. Having concluded that the Swans did have constructive notice of the taking, the judge ruled that the Swans lacked standing. For the reasons just stated, we have determined that whether the Swans had constructive notice cannot be resolved against the Swans as a matter of law on the current record. Therefore, the standing issues also require a remand.
As noted, the judge appears to have assumed that the Swans necessarily had standing if they had no actual or constructive notice of the taking. The correctness of that assumption is not currently before us. However, to help inform the proceedings on remand, we note that the context here is different from that of Devine in a way that is potentially material. When the subsequent purchaser in Devine bought the land that had been subject to the order of taking, he thought he was buying that land, and paid for it. The court found standing based on his “claim to be a bona fide purchaser without notice.” Devine, 449 Mass. at 512 n. 11. In contrast, whether the Swans can claim to be “bona fide purchasers” within the meaning of Devine's use of that term is at least subject to debate (regardless of whether they had notice of the order of taking). Unlike the subsequent purchaser in Devine, the Swans may affirmatively have believed they were not purchasing the specific land that had been the subject of the taking. Whether or not this distinction ultimately should make a difference on standing is not something that either side has addressed (given that they, like the trial judge, focused on the notice issue). In addition, consideration of such issues would benefit from fuller development of the underlying facts.
Conclusion. We vacate the judgment and remand this case for further proceedings consistent with this memorandum and order.
So ordered.