Nassr v. Com.

• Citation: 477 N.E.2d 987,394 Mass. 767
• Parties: Rena NASSR et al. 1 v. COMMONWEALTH; Alfred Nassr, third-party defendant.
• Decision Date: 09 May 1985
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 987

477 N.E.2d 987

394 Mass. 767

Rena NASSR et al. ¹ v. COMMONWEALTH;

Alfred Nassr, third-party defendant.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued December 4, 1984.

Decided May 9, 1985.

Lee L. Bishop, Asst. Atty. Gen. (Raymond G. Dougan, Asst. Atty. Gen., with him) for the Com.

Jeffrey S. Entin, Fall River, for plaintiffs.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

These actions arose out of the discovery of an unlicensed hazardous waste operation on land owned by the plaintiffs and an extensive cleanup of that land by State and local officials. The plaintiffs, Rena Nassr and the San-Man Corp. (San-Man), sued the Commonwealth, claiming that the Commonwealth had trespassed on the plaintiffs' land and created a nuisance. The Commonwealth filed a counterclaim against the plaintiffs, and a third-party complaint against Alfred Nassr, former treasurer of San-Man and husband of Rena Nassr. The Commonwealth alleged that the plaintiffs and the third-party defendant were liable for civil penalties under G.L. c. 21, §§ 42, 57, 58, for illegal storage and disposal of oil and hazardous material, and for the costs of the cleanup operation under G.L. c. 21, § 27(14), or, alternatively, for restitution because of the benefits conferred on them by the Commonwealth's cleanup efforts. The case was tried without a jury in the Superior Court in Bristol County on November 6, 1981. On March 2, 1983, the trial judge issued written findings of fact and conclusions of law. He entered judgment for the defendant in the original action, and for the plaintiffs and the third-party defendant in the counterclaim and third-party complaint. The Commonwealth and the plaintiffs both appealed. We transferred the cases to this court on our own motion.

We summarize the judge's findings. The plaintiff Rena Nassr owns a ten-acre parcel of land in Freetown, which she leases to the plaintiff San-Man. The third-party defendant, Rena Nassr's husband Alfred Nassr, was treasurer of San-Man and directed its operations until he retired in 1980. San-Man owns a 1,200 foot warehouse on the property. The warehouse is divided into six separate sections. In 1978, San-Man rented a section of the warehouse to Harold Mathews, doing business as H. & M. Drum Co., Inc. San-Man also rented five trailers to Mathews. There was no written lease between Mathews and San-Man.

In April, 1979, employees or agents of Mathews were discovered dumping liquid on the ground at about 500 to 1,000 feet from the end of the portion of the building leased to Mathews. Further investigation by Federal, State, and local officials revealed a large liquid lagoon, areas of discolored earth, barrels, and trailers containing barrels. High concentrations of volatile organic materials including tetrachloroethylene, trichloroethylene, trichloroethane, and toluene were discovered at the site. The section of the warehouse rented to Mathews contained about 750 barrels of liquid material, some of which were leaking. The barrels contained volatile organic materials. There was a risk of groundwater contamination, which was not realized because of a layer of clay in the subsoil, although contamination could have occurred through future perforations of the clay layer. There was a serious risk, also not realized, of accidental on-site ignition in the warehouse, which would have caused fires and explosions and would have endangered human life. The materials found at the site, when absorbed through the skin, ingested through water consumption, or inhaled, could cause damage to the central nervous system, the liver, and the kidneys, and, through extended exposure, could cause cancer.

On discovery of this condition, State and local officials padlocked Mathews's section of the warehouse and maintained a security guard. They received permission from the owners to enter the land several times in April, 1979, in order to conduct the cleanup operation. The Commonwealth's cleanup operation lasted until October, 1980.

The judge found that Mathews had been disposing of hazardous waste without a license, and that a public nuisance was created by the storage and disposal of the waste. He also found that Alfred and Rena Nassr had no knowledge of the dumping operation until it was discovered by police officers in April, 1979. Alfred and Rena Nassr did not act to remove the waste, nor did they offer at any point to do so. The Commonwealth would have allowed them to conduct a cleanup operation. The judge found, however, that Alfred and Rena Nassr cooperated with the Commonwealth in the cleanup operation and "acted reasonably." The judge found "no evidence ... that the Commonwealth undertook its activities with the intent to seek reimbursement from the plaintiffs or the third party defendant."

1. The appeal by Rena Nassr and San-Man. In their complaint, the plaintiffs alleged that the Commonwealth had trespassed on their land and had created a nuisance thereon. The judge ruled that there had been no trespass and that the Commonwealth had a "right and duty to abate the nuisance" on the land. On appeal the plaintiffs now claim that the Commonwealth's cleanup operation constituted a "taking" of their property, for which they are entitled to just compensation. They argue that, for the period during which the Commonwealth engaged in its cleanup operation (April, 1979, to October, 1980) they are entitled to the reasonable rental value of the section of the warehouse which was rented to Mathews.

Putting aside the question whether the plaintiffs' taking argument was properly raised below, and hence is properly before us, see McLeod's Case, 389 Mass. 431, 434, 450 N.E.2d 612 (1983), we conclude that the plaintiffs' claim of a taking is without merit.

"In deciding whether a particular governmental action has effected a taking, [we focus] ... both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole...." Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-131, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978). In this case, the Commonwealth acted under the authority of G.L. c. 21, § 27(14), ² to remove the hazardous material and thereby to prevent the risks of groundwater contamination, fires and explosions, and life threatening disease. The Commonwealth's actions were classic exercises of the State's police power to maintain the public health. See Davidson v. Commonwealth, 8 Mass.App. 541, 395 N.E.2d 1314 (1979) (action of the Commonwealth in taking over operation of a nursing home after Governor had declared a public health emergency at the nursing home was a lawful exercise of police power and did not amount to a taking).

The fact that the Commonwealth temporarily occupied the portion of the plaintiffs' land which was contaminated while it conducted the cleanup procedures hardly transforms this exercise of police power into an exercise of the eminent domain power. As the Supreme Court of the United States has stated, "[W]here the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property." Miller v. Schoene, 276 U.S. 272, 279-280, 48 S.Ct. 246, 247, 72 L.Ed. 568 (1928). See National Bd. of YMCA v. United States, 395 U.S. 85, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969). "[T]he entry by firemen upon burning premises cannot be said to deprive the private owners of any use of the premises." Id. at 93, 89 S.Ct. at 1516.

Moreover, the plaintiffs' claim that the Commonwealth used their warehouse to "store the barrels of hazardous waste pending clean-up" receives no support from the judge's findings. He specifically found that "[t]he time involved for removal as well as the means were reasonable." He also found that "[f]rom November of 1979 and for the next twelve months state officials removed and disposed of the chemicals from the warehouse and the contaminated soil." Nothing in the judge's findings suggests that the Commonwealth used the warehouse to "store" the waste. On the contrary, the judge found that the presence of the barrels in the warehouse constituted a public nuisance because of the serious possibility of an explosion.

The plaintiffs' claim that they were denied the reasonable rental value of the warehouse while the Commonwealth occupied part of their land sounds a particularly hollow ring in light of the judge's findings that both the warehouse and the liquid lagoon presented serious health risks, and that the plaintiffs did not act to, nor offer to, clean up the waste, but rather permitted the Commonwealth to do so. The plaintiffs' claim fails. The warehouse was in no condition to be rented until it was cleaned up.

2. The Commonwealth's appeal. The Commonwealth appeals the judge's ruling that the plaintiffs and the third-party defendant are not liable to the Commonwealth for the costs of the cleanup operation. In its complaint, the Commonwealth alleged liability for costs under G.L. c. 21, § 27(14), and under the common law. The Commonwealth has not appealed the ruling of no liability on the statutory claim. ³ Before this court, the Commonwealth pursues exclusively its argument that the plaintiffs are liable at common law for the "costs" of cleanup. ⁴ In essence, the Commonwealth argues that the plaintiffs had a common law duty to abate the nuisance on their land; that the Commonwealth performed the plaintiffs' duty for them; and that the plaintiffs will be unjustly enriched if they are permitted to retain the benefit which was conferred upon them without paying compensation.

Before we examine the merits of the Commonwealth's common law claim, we first must ask whether the common law was altered in any way by G.L. c. 21, § 27(14). General Laws c. 21, § 27(14), as appearing in St.1979, c. 705,...