New England Continental Media, Inc. v. Town of Milton
| Decision Date | 02 April 1992 |
| Docket Number | No. 90-P-765,90-P-765 |
| Citation | 588 N.E.2d 1382,32 Mass.App.Ct. 374 |
| Parties | NEW ENGLAND CONTINENTAL MEDIA, INC. v. TOWN OF MILTON. |
| Court | Appeals Court of Massachusetts |
Robert H. Quinn, Boston, for plaintiff.
John P. Flynn, Town Counsel, Quincy, for defendant.
Before BROWN, PORADA and GREENBERG, JJ.
This appeal concerns a claim of easement rights in property now owned by the town of Milton and used for conservation purposes. Abutting the Milton conservation land, on its 16.7-acre property in the city of Quincy, the plaintiff operates a radio station. The plaintiff acquired the Quincy property in 1978 by a deed that contained the following provision: "The above-described premises are conveyed subject to and with the benefit of rights, easements, and restrictions of record, insofar as now in force and applicable." This provision occurs in all deeds in the plaintiff's chain of title back to and including deeds from 1943 and 1944, and the 1943 deed apparently created the easement in question. 1 The town does not dispute that a recorded easement once existed in the plaintiff's chain of title but argues that a 1965 eminent domain taking of the servient estate by the town extinguished any easement rights the owners of the dominant estate--the plaintiff's property--may have had.
The order of taking, recorded on November 3, 1965, acknowledged the owners and mortgagee of the property and also contained the following language: "it is believed that no other persons have any interest in said land but the right, title and interest of every person in said land is included in this taking." The town gave notice of the taking to the named owners and mortgagee and paid damages to the owners as compensation for the taking. Direct notice of the taking was never given (and no damages were paid) to the plaintiff's predecessor in interest.
The parties stipulated that since 1943 there has been uninterrupted use of an access road which runs over the Milton land to the Quincy property on the part of the plaintiff and its predecessors and that this access road is the sole means of vehicular access to the plaintiff's property. Between 1953 and 1978, the access road was an eight-foot wide gravel and dirt road. In 1970, the town allowed water lines to be installed across the Milton land to the Quincy property and has supplied the plaintiff with town water. In 1978, the plaintiff paved the access road and widened it by two or three feet. Prior to 1979, only three or four persons a day would use the access road. In 1979, however, approximately ten or twelve individuals a day began to use the access road. In 1980, the town placed a locked gate across the access road and gave the plaintiff a key.
The trial judge ruled, we believe correctly, that the eminent domain taking by the town in 1965 extinguished the plaintiff's easement rights in the access road and that therefore the plaintiff has no rights over the access road or any part of the Milton land. As did the trial judge, we reject the plaintiff's arguments that (1) the town did not intend to include the easement rights of the Quincy property in the eminent domain taking, (2) the town acquiesced in the plaintiff's use of the right of way and therefore is estopped from prohibiting the plaintiff's continued use, and (3) the plaintiff has an easement by necessity which could not be extinguished by the eminent domain taking. 2
1. The eminent domain taking. The taking of the Milton land was effectuated pursuant to G.L. c. 40, § 8C. Generally, an eminent domain taking in fee simple extinguishes all other interests in the subject property. Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N.E. 763 (1901). See Silberman v. United States, 131 F.2d 715, 717 (1st Cir.1942). In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate. See Walpole v. Massachusetts Chem. Co., 192 Mass. 66, 68-70, 78 N.E. 140 (1906). See also Restatement of Property § 507 (1944); 3 Nichols, Eminent Domain § 9.2 (rev.3d ed. 1991).
While a taking must be limited to the reasonable necessities of the case (Flower v. Billerica, 324 Mass. 519, 523, 87 N.E.2d 189 [1949]; Restatement of Property, supra ), the town could certainly conclude that use of an access road by a corporation was inconsistent with the conservation purposes for which the land was originally taken. See Poremba v. Springfield, 354 Mass. 432, 434, 238 N.E.2d 43 (1968). Contentions by the plaintiff to the contrary are unavailing.
We agree with the trial judge's determination that the town intended to take the Milton land in fee simple, unencumbered by easement rights. As noted, the language of the order of taking explicitly stated that "the right, title and interest of every person in said land is included in this taking." Even if the town was unaware of interests in the land belonging to other than those named in the order of taking, its intent to extinguish all rights in the land was unambiguous.
The fact that the plaintiff's predecessor in interest did not receive actual notice of the taking does not invalidate the town's actions. See Walpole v. Massachusetts Chem. Co., 192 Mass. at 70, 78 N.E. 140; United States v. 125.2 Acres of Land, 732 F.2d 239, 243 (1st Cir.1984). See also Grove Hall Sav. Bank v. Dedham, 284 Mass. 92, 94, 187 N.E. 182 (1933). Moreover, the plaintiff has no standing to challenge the validity of the 1965 taking. That right belonged only to the holder of the easement at the time of the taking. See Markiewicus v. Methuen, 300 Mass. 560, 564, 16 N.E.2d 32 (1938); Commonwealth v. Quincy Memorial Co., Inc., 13 Mass.App.Ct. 1047, 1047-1048, 434 N.E.2d 670 (1982).
2. Estoppel. The plaintiff claims that, since it did not object to the plaintiff's (and the plaintiff's predecessor in interest's) use of the access road, the town is estopped from preventing the plaintiff's continued use. "Generally, the doctrine of estoppel is not applied against the government in the exercise of its public duties." Gamache v. Mayor of N. Adams 17 Mass.App.Ct. 291, 294, 458 N.E.2d 334 (...
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