Town of Sudbury v. Mass. Bay Transp. Auth.

Decision Date22 September 2020
Docket NumberSJC-12738
Citation152 N.E.3d 1101,485 Mass. 774
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

George X. Pucci, Boston (Audrey A. Eidelman also present) for the plaintiff.

Thaddeus A. Heuer, Boston, for Massachusetts Bay Transportation Authority.

Joshua A. Lewin, Boston, for NSTAR Electric Company.

Mark R. Rielly & Rachel C. Thomas, for New England Power Company & another, amici curiae, submitted a brief.

Jessica Gray Kelly & Daniel C. Johnston, for NAIOP Massachusetts & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.2


In this appeal, we consider the scope of the common-law doctrine of "prior public use." Under this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation. Robbins v. Department of Pub. Works, 355 Mass. 328, 330, 244 N.E.2d 577 (1969). Here, we are asked to extend this doctrine and to determine that the prior public use doctrine bars the diversion of public land devoted to one public use to an inconsistent private use. Because such a sweeping change would not advance the purposes of the doctrine, and would create widespread uncertainty concerning numerous existing holdings of private land that were transferred by public entities, we decline to adopt the municipality's proposed reworking of the doctrine. Accordingly, we affirm the Land Court judge's decision dismissing the complaint, albeit, in part, on somewhat different grounds.3

1. Prior proceedings. In November 2017, the town of Sudbury (town) filed an amended complaint in the Land Court seeking to prevent defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an option agreement with defendant NSTAR Electric Company, doing business as Eversource Energy (Eversource), for an easement to install an electric transmission line underneath about nine miles of a disused right of way (ROW), approximately 4.3 miles of which extend through the town. The town argued that the prior public use doctrine precludes the MBTA from transferring public land to another public entity for an inconsistent use, here, changing the use of the ROW from the purpose set forth in the eminent domain transfer -- the extension and operation of mass transportation services -- to the installation and maintenance of underground electric transmission lines, absent legislative authorization.

The first count of the complaint sought a judgment declaring that the "inconsistent public use is illegal under the Massachusetts prior public use doctrine unless and until it is specifically authorized by legislation." The second count sought to enjoin MBTA's diversion of the inactive ROW to an inconsistent public use. The defendants moved to dismiss the complaint based on the town's lack of standing and the failure to state a claim for a violation of the prior public use doctrine. See Mass. R. Civ. P. 12(b)(1), (6), 365 Mass. 754 (1974).

A Land Court judge denied the defendants' motions to dismiss for lack of jurisdiction, see Mass. R. Civ. P. 12(b)(1), after concluding that the town had standing to bring the claim, albeit that "the [t]own's standing appears at the precipice of adequacy." The judge then allowed the defendants' motions to dismiss on the ground that the complaint failed to state a claim upon which relief can be granted. See Mass. R. Civ. P. 12(b)(6). In so doing, the judge ruled that Eversource is a private corporation and not, as the town claimed, a public entity. The judge declined the town's urging that he extend the long-established doctrine of prior public use to situations involving the diversion of an authorized public use of land to an inconsistent private use. The town appealed to the Appeals Court, and we transferred the case to this court on our own motion.

2. Background.4 The MBTA acquired the ROW in part through an indenture from the trustees of the property of the Boston and Maine Corporation (B&M), subject to an easement for B&M's continued use of the ROW as a freight railroad, and subsequently through a taking by eminent domain for purposes of providing and extending mass transportation services. The MBTA has not constructed an extension of its transportation system through the ROW, and the ROW has been inactive as a rail line for over forty years. Although the rails and rail beds are still extant, the area has become heavily wooded. Multiple sections of the ROW abut environmentally sensitive areas, such as Federal, State, and private conservation areas, a farm, a fishery, streams, ponds, and wetlands. Numerous other sections abut "dense" areas of private properties, some of which are subject to conservation restrictions under G. L. c. 184, §§ 31 - 33. Parts of the ROW currently are used by the public as a walking or hiking trail, and other stretches generally serve as wooded areas of wildlife habitat. The railroad tracks and railroad beds formerly used by B&M have not been removed, and continue to extend through the ROW.

The 1976 indenture from B&M provided that, for consideration of $36,549,000, B&M granted the MBTA "all of [B&M's] right, title and interest ... sufficient to permit the [MBTA] to operate a passenger and freight rail service over the rail line rights of way ... and to [B&M's] rights of way and other lands thereon and including all track, signals, bridges, buildings, shops, towers, and other improvements affixed thereto." B&M "reserve[d] unto themselves, their successors and assigns, the right and easement as are appropriate and necessary to the continuance of [B&M's] freight transportation business."

In 1977, the MBTA acquired title to the ROW in fee simple, pursuant to G. L. c. 161A, § 3(o ), "for[, among other things,] the purpose of providing and extending mass transportation facilities for public use." The order of taking was made subject to the same freight easement that was reserved to B&M in the indenture, as well as "all easements for wires, pipes, conduits, poles, and other appurtenances for the conveyance of water, sewerage, gas, oil, and electricity."

On June 9, 2017, the MBTA entered into an option agreement with Eversource. The agreement entitles Eversource to lease an easement in the ROW and to install an underground 115-kilovolt electrical transmission line, subject to obtaining "any necessary permits or approvals." The option agreement further provides that the MBTA reserves the right to relocate the transmission lines to anywhere within the ROW if the MBTA determines that the lines are interfering with its use of the ROW for transportation purposes. If exercised, the agreement is expected to generate $9.3 million for the MBTA over the subsequent twenty years.

The preferred route for the underground transmission line, through the entire length of the ROW, is approximately nine miles.5 The route begins at Eversource's Sudbury substation and travels through the ROW northwest through Sudbury, Marlborough, Hudson, Stow, and then Hudson again. In Hudson, the transmission line would proceed underneath public roadways to Eversource's Hudson substation.

The MBTA also has entered into a lease agreement with the Department of Conservation and Recreation (DCR) to allow for the construction of a segment of the Massachusetts Central Rail Trail (MCRT) over the buried transmission lines to be placed in the ROW. Under the terms of the option agreement, the easement granted to Eversource is subject to the provisions of the DCR lease, and Eversource is precluded from "materially interfer[ing] with or disturb[ing] the DCR's use of its leased premises." According to the complaint, "Eversource and DCR are entering into a memorandum of understanding in an effort to memorialize agreements related to design, permitting, construction, operation, and maintenance of both the underground electric transmission line and the above-ground publicly accessible rail trail within the MBTA ROW. Eversource has stated that it expects that DCR will be responsible for maintenance of the ROW following completion of the transmission project."

The proposed transmission project is subject to regulatory approval from the Energy Facilities Siting Board (EFSB) and the Department of Public Utilities (DPU), as well as review under the Massachusetts Environmental Protection Act ( G. L. c. 30, §§ 61 et seq. ) and the Wetlands Protection Act ( G. L. c. 131, § 40 ), and by the Executive Office of Energy and Environmental Affairs and the Sudbury conservation commission. Eversource has undertaken the approval process with respect to the EFSB and the DPU, who have consolidated their proceedings in the matter.

In support of the town's argument that the transmission project is a diversion of one public use to another, the complaint states that Eversource's applications to regulatory entities describe the proposed service and Eversource as public. In its petition to the EFSB, Eversource maintains that the proposed transmission lines would serve a "compelling public use and purpose." The new transmission lines are necessary, Eversource asserts, in order to meet its customers' growing energy needs and to avoid service outages, which are estimated to occur given the current facilities and increasing demand. Eversource also maintains that coupling the underground transmission line with the MCRT would confer a "public benefit," thus justifying approval of the project.

3. Discussion. a. Standard of review. "We review the denial of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Edwards v. Commonwealth, 477 Mass. 254, 260, 76 N.E.3d 248 (2017), citing Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). In assuming the facts as...

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