Smiley First, LLC v. Department of Transportation ( 2023 )

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SJC-13300
SMILEY FIRST, LLC vs. DEPARTMENT OF TRANSPORTATION.
Suffolk. November 4, 2022. – May 23, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Easement. Eminent Domain, Extent of taking. Real Property,
Easement. Railroad.
Civil action commenced in the Superior Court Department on
January 24, 2020.
The case was heard by Paul D. Wilson, J., on motions for
summary judgment.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Paul L. Feldman (Shawn M. McCormack also present) for the
plaintiff.
Kendra Kinscherf, Assistant Attorney General, for the
defendant.
Ben Robbins & Daniel B. Winslow, for New England Legal
Foundation, amicus curiae, submitted a brief.
Deborah J. La Fetra, of California, Sam Spiegelman, of
Washington, & Jonathan M. Houghton, for Pacific Legal
Foundation, amicus curiae, submitted a brief.
2
GEORGES, J. In this case, we consider whether an easement
taken by eminent domain in 2018 (2018 easement) by the
defendant, the Department of Transportation (MassDOT), exceeded
the scope of an easement taken in 1991 (1991 easement) by
MassDOT's predecessor in interest, the Department of Public
Works (DPW), with respect to certain land in the South Boston
section of Boston (burdened land) that presently is owned by the
plaintiff, Smiley First, LLC (Smiley).
DPW's 1991 order of taking (1991 taking) created an
easement over the burdened land for purposes of "the relocation
of the facilities of the Consolidated Rail Corporation
[(Conrail)]," which were going to be displaced by construction
of a haul road for the Central Artery/Tunnel Project, also known
as the "Big Dig."1 In 2017, the Massachusetts Bay Transportation
Authority (MBTA) announced plans to construct a test track and a
6,000 square foot building for newly purchased subway cars (Red
Line test track project) on the portion of Smiley's land
burdened by the 1991 easement. MassDOT then recorded the 2018
confirmatory order of taking (2018 taking), which provides that
it is to confirm and, "to the extent necessary to establish such
1 The Central Artery/Tunnel Project rerouted the Central
Artery, a portion of Interstate Route 93 that ran through the
city of Boston on an elevated highway, to an underground tunnel.
DPW and Massachusetts Bay Transportation Authority operated
together on the Big Dig project. MassDOT is the lawful
successor to DPW in accordance with G. L. c. 6C.
3
rights, acquire[]" an easement "for railroad purposes" that
include the Red Line test track project.
Based on its contention that the 2018 taking merely
confirmed rights that it already held under the 1991 taking,
MassDOT refused to pay Smiley any compensation for the 2018
taking, and this litigation ensued. On the parties' cross
motions for partial summary judgment, a Superior Court judge
determined, in reliance on his understanding that easements
taken by eminent domain are not subject to the ordinary rules of
interpretation of easements, that the 1991 easement was a grant
to use the entire area of the easement for "any 'railroad
purpose,'" including the Red Line test track project, and,
accordingly, that Smiley was due no compensation as a result of
the 2018 taking.
We hold that, while the intent of the parties is not to be
considered when an easement is taken by eminent domain, the
ordinary rules of interpretation for easements otherwise apply.
Thus, 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." General Hosp. Corp.
v. Massachusetts Bay Transp. Auth., 423 Mass. 759, 764 (1996).
Applying this principle here, we conclude that the 1991 easement
4
was more limited in scope than the 2018 easement and, in
particular, did not encompass a use such as the Red Line test
track project. Therefore, the summary judgment in favor of
MassDOT must be reversed, and the matter remanded to the
Superior Court for a determination of the appropriate
compensation due Smiley.2
1. Background. We summarize the undisputed facts set
forth in the motion judge's decision on the parties' cross
motions for partial summary judgment, supplemented by other
uncontroverted facts in the summary judgment record. See
Williams v. Board of Appeals of Norwell, 490 Mass. 684, 685
(2022).
a. Smiley's property. In 2015, Smiley acquired an 18,088
square foot parcel of land at the intersection of B Street and
Cypher Street in South Boston. Approximately 12,510 square feet
of that property comprise the burdened land at issue here, which
is contained within one of the parcels, parcel 60-E-RR-1,
subject to the 1991 taking.
b. 1991 taking. In 1991, DPW laid out a limited access
State highway, known as the South Boston Haul Road (haul road),
to support construction of the extension of Interstate Route 90
to the proposed third harbor tunnel, as part of the Central
2 We acknowledge the amicus briefs by the New England Legal
Foundation and the Pacific Legal Foundation.
5
Artery/Tunnel Project. Construction of the haul road was a
massive enterprise that affected over 1 million square feet of
land spread across twenty-eight parcels owned by multiple
different owners.
To acquire property for the haul road, the 1991 taking took
in fee simple approximately 400,000 square feet of land occupied
by Conrail, which is not at issue in this appeal. Because this
action displaced Conrail's rail operations, the order also
established easements on several neighboring parcels, including
over 12,510 square feet of parcel 60-E-RR-1, so that Conrail
could relocate its railroad operations there. Specifically, the
order provides:
"In connection with the laying out of the State highway
hereinbefore described, it is necessary to relocate
portions of railroad rights of way and land is hereby
acquired for said relocation as follows:
"Easements are hereby taken in parcels 60-E-RR-1, 60-E-RR-
5, and 60-E-RR-6, shown on the plan hereinafter referred
to, for the relocation of facilities of the Consolidated
Rail Corporation, including all trees and structures
located thereon . . . .
"Said easements (i) shall be used for railroad purposes
only, (ii) shall not be used for the storage of any
hazardous materials, hazardous wastes or hazardous
substances other than in connection with the extension of
Interstate Route 90 or the reconstruction of Interstate
Route 93, and (iii) shall be subject to the rights of the
owner of the underlying fee as hereinafter provided. . . .
"Said railroad easements are acquired in limited vertical
dimension only, said area being limited to a height of
[twenty feet, six inches] above the top of the rails to be
placed thereon. Included in the easements, however, is the
6
unlimited right to utilize the air rights above [twenty
feet, six inches] for twelve (12) years following the date
of recording of this taking. Thereafter, the use of said
easements shall be subject to the rights of the owner of
the air rights so reserved to use the area subject to the
easements as reasonably may be required, subject to the
approval of the party or parties having the benefit of the
easements, for access to and to support the uses of the air
rights."
This order by its terms defined the 1991 easement, and, pursuant
to it, Conrail subsequently relocated its main line to a single
track that crosses land, now part of Smiley's property, that is
burdened by the 1991 easement.
c. 2018 taking. Through a series of transactions, MassDOT
ultimately acquired the 1991 easement.3 MassDOT subsequently
sponsored the MBTA's Red Line test track project and authorized
the MBTA to use MassDOT's land and rights in land for the
project. MassDOT and the MBTA also publicly declared that the
entirety of the burdened land on Smiley's property was subject
to the MBTA's exclusive use for any railroad purpose, including
the Red Line test track project.
After Smiley filed a complaint in the Land Court
challenging MassDOT's authority to use the burdened land for the
3 In 1997, the Commonwealth conveyed the 1991 easement to
Conrail. On June 1, 1999, Conrail sold its Boston rail assets
to New York Central Lines LLC, which subsequently merged into
CSX Transportation, Inc. (CSX). Through a release deed dated
June 11, 2010, CSX conveyed to MassDOT its right, title, and
interest in the 1991 easement, subject to a retained easement
for CSX's continued freight service.
7
Red Line test track project, MassDOT recorded the 2018 taking.
That order purported to "confirm and, to the extent necessary to
establish such rights, acquire[] an easement for railroad
purposes as . . . set forth in the 1991 [t]aking and/or in this
instrument," including testing and storage of rapid transit rail
vehicles and reasonably related uses such as access, parking,
and utility needs. "For the further avoidance of doubt," the
order explicitly declared that these uses included the Red Line
test track project.
d. Prior proceedings. Following dismissal of its initial
suit without prejudice,4 in 2020, Smiley filed a new complaint
against MassDOT in the Superior Court, seeking declaratory and
equitable relief pursuant to G. L. c. 231A, § 1, with respect to
the parties' respective rights under the 1991 easement as of
January 11, 2018 (the day before the 2018 taking), and damages
pursuant to G. L. c. 79, for the taking by MassDOT on January
12, 2018.
4 A Land Court judge dismissed Smiley's quiet title claims,
but not the declaratory judgment claims, which, by agreement of
the parties, were transferred to the Superior Court. A Superior
Court judge dismissed those claims without prejudice, ruling
that the remaining declaratory judgment claims had to be
combined in a single action with a claim for land damages.
Smiley then filed his current complaint in the Superior Court in
January 2020; the resulting judgment is what is now before us on
appeal.
8
Following a nonevidentiary hearing on the parties' cross
motions for partial summary judgment, a Superior Court judge
denied Smiley's motion, allowed MassDOT's cross motion, and
dismissed Smiley's claim for compensation under G. L. c. 79.
The judge agreed with MassDOT that the 1991 "easement, by its
terms, may be used for any 'railroad purposes,' which includes
the construction of a test track and building to test newly-
purchased subway cars." Smiley filed an appeal with the Appeals
Court, and we transferred the case to this court on our own
motion.
2. Discussion. a. Standard of review. "We review a
decision on a motion for summary judgment de novo and, thus,
accord no deference to the decision of the motion judge"
(quotation omitted). Williams, 490 Mass. at 689-690, quoting
Tracer Lane II Realty, LLC v. Waltham, 489 Mass. 775, 778
(2022). "The allowance of a motion for summary judgment 'is
appropriate where there are no genuine issues of material fact
in dispute and the moving party is entitled to judgment as a
matter of law.'" Williams, supra at 689, quoting Barron
Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group,
469 Mass. 800, 804 (2014). Where both parties have moved for
summary judgment, "the evidence is viewed in the light most
favorable to the party against whom judgment" has been entered.
9
Green Mountains Ins. Co. v. Wakelin, 484 Mass. 222, 226 (2020),
quoting Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012).
b. Principles governing easements taken by eminent domain.
"The meaning and scope of an instrument of taking, so far as it
affects private rights in property, is a question of law."
General Hosp. Corp., 423 Mass. at 764, citing Flagg v. Concord,
222 Mass. 569, 572 (1916).
We begin by reviewing the principles governing our general
construction of easements. "An affirmative easement 'creates a
nonpossessory right to enter and use land in the possession of
another and obligates the possessor not to interfere with the
uses authorized by the easement.'" Patterson v. Paul, 448 Mass.
658, 663 (2007), quoting Restatement (Third) of Property:
Servitudes § 1.2(1) (2000). "Restrictions on land 'are
disfavored,' . . . and doubts concerning the rights of use of an
easement 'are to be resolved in favor of freedom of land from
servitude'" (citation omitted). Martin v. Simmons Props., LLC,
467 Mass. 1, 9 (2014). "[T]he servient owner retains the use of
his [or her] land for all purposes except such as are
inconsistent with the right granted to the dominant owner" or
acquired by that owner. Merry v. Priest, 276 Mass. 592, 600
(1931).
The motion judge concluded that "[t]hese principles . . .
do not assist Smiley," and Smiley's reliance on them was
10
misplaced, because they derive from cases that concern
"transfers or prescriptive rights involving private parties"
(emphasis added), Mugar v. Massachusetts Bay Transp. Auth., 28
Mass. App. Ct. 443, 445 (1990). The conclusion that easements
taken by eminent domain are not to be construed in favor of
freedom of the land from servitude was error.
As MassDOT points out, an easement taken by eminent domain
must be construed in light of the language of the order of
taking and the "circumstances surrounding the taking." General
Hosp. Corp., 423 Mass. at 764. This approach differs in one
respect from negotiated easements, as the intents of the owner
and the government entity taking the easement are not relevant.
See Mugar, 28 Mass. App. Ct. at 445 (intent of parties is
irrelevant in construing easement taken by eminent domain
because "[t]he taking of private property for a public purpose
may be accomplished without the consent of the owner," and "the
intent of the governmental body is largely beyond the scope of
judicial scrutiny"). Thus, "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."
Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 690
n.17 (2016), quoting Bateman v. Board of Appeals of Georgetown,
56 Mass. App. Ct. 236, 239 (2002).
11
But that does not mean that an easement taken by eminent
domain is insulated from application of the ordinary rules of
construction otherwise applicable to the interpretation of
easements. Apart from consideration of the parties' intent,
which is inapplicable to takings by eminent domain, we
consistently have applied the same rules of construction to
easements taken by eminent domain as are applicable to privately
granted easements. Most significantly with respect to the
issues here, whether an easement has been established by eminent
domain or granted privately, "as a general rule, doubts as to
the extent of a restriction in an easement 'should be resolved
in favor of freedom of land from servitude.'" General Hosp.
Corp., 423 Mass. at 765, quoting Hemenway v. Bartevian, 321
Mass. 226, 229 (1947). As with an easement that was privately
granted,
"[t]he 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 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."
General Hosp. Corp., supra at 764-765. See Agostini v. North
Adams Gaslight Co., 265 Mass. 70, 73 (1928) ("In a taking by
eminent domain only such rights are acquired as are reasonably
necessary to accomplish the purpose for which the taking is
12
made, unless the Legislature authorizes the acquiring of greater
rights").
With these principles in mind, we turn to consider the
easements at issue in this case.
c. Scope of 1991 easement. In determining the scope of
the 1991 easement, we begin with the language of the 1991
taking, which expresses the purpose for which the easement was
taken and the circumstances of the taking. The 1991 order
clearly states that the purpose was to facilitate "the laying
out of the State highway" for the Central Artery/Tunnel Project
by "relocat[ing] portions of railroad rights of way," and, more
specifically, "relocat[ing] . . . the facilities of [Conrail]."
Accordingly, by its plain language, the scope of the easement is
limited to the extent reasonably necessary to relocate Conrail's
facilities. See General Hosp. Corp., 423 Mass. at 764(questions about extent of eminent domain takings "should be
resolved in favor of freedom of the land from the servitude").
MassDOT correctly points out that the 1991 license
agreement between the Commonwealth and Conrail permitted the
1991 easement to be used by Conrail for ancillary activities
that constituted "railroad purposes":
"(i) for the construction and maintenance of the temporary
rail yard; (ii) for materials handling and processing; and
(iii) for use by Conrail, its authorized customers, agents
and assigns for railroad purposes (freight or passenger),
including the loading and unloading of rail cars or
13
containers, the classifying and assembling of trains, the
temporary storage of operating rolling stock or for such
other railroad purposes related to the transportation of
freight and commodities by rail."
But this license could not unilaterally expand the scope of the
permissible use of the burdened land beyond what was stated in
the 1991 taking. Moreover, consistent with the purpose stated
in the 1991 taking, the license agreement similarly recites that
the Commonwealth is entering into the license agreement "to
partially replace and restore the [c]urrent [Conrail] Rail
Facilities and Conrail Land affected or eliminated by the Haul
Road." Thus, the Commonwealth's licensing of these activities
was still governed by the over-all purpose set out in the 1991
taking –- enabling Conrail to relocate the facilities being
displaced by the haul road.
It is also important to recognize that the 1991 easement
for the relocation of Conrail's facilities was limited in space
and time by the air rights reserved to the fee holder. As
defined in the 1991 taking, the easement included a vertical
dimension of twenty feet and six inches "above the top of the
rails to be placed" on the property, "subject to the rights of
the owner of the air rights" above that height after a certain
period of time. For the first twelve years after the recording
of the taking, Conrail, as the beneficiary of the easement, also
enjoyed "the unlimited right to utilize the air rights above"
14
twenty feet and six inches. "Thereafter, the use of said
easements shall be subject to the rights of the owner of the air
rights so reserved . . . for access to and to support the uses
of the air rights." Notably, the twelve-year period coincided
with the time frame in which Conrail was to complete the
relocation of its track and other facilities, and for the haul
road to be constructed. Otherwise put, the fee holder had to
wait twelve years before developing its air rights, so as to
allow Conrail time to relocate its operations, in accordance
with the purpose of the taking. Once Conrail accomplished that
purpose by relocating a single track to the property, the scope
of the easement established thereunder was fixed and limited to
the right of way occupied by Conrail's track and the vertical
dimension above it.5
5 As we discuss further infra, the operation of the air
rights provision in the 1991 easement was analogous to the well-
established doctrine of practical location.
"Where a right of way, or other easement, is granted by
deed without fixed and defined limits, the practical
location and use of such way or easement by the grantee
under [the] deed, acquiesced in by the grantor at the time
of the grant and for a long time subsequent thereto,
operate as an assignment of the right, and are deemed to be
that which was intended to be conveyed by the deed, and are
the same, in legal effect, as if it had been fully
described by the terms of the grant."
Bannon v. Angier, 2 Allen 128, 129 (1861). See Naumkeag Steam
Cotton Co. v. American Glue Co., 244 Mass. 506, 508 (1923)
("When the exact location of the easement is not precisely
defined but has been exercised in a certain place, the grantee
15
Our interpretation of the extent of the 1991 easement is
supported by one of our rulings in General Hosp. Corp. In that
case, Massachusetts General Hospital had acquired property that
was subject to an easement taken by DPW for the purpose of
constructing an elevated highway ramp. General Hosp. Corp., 423
Mass. at 759-760. The hospital and the MBTA then disputed the
scope of this easement in the hospital's suit seeking damages
for the MBTA's subsequent eminent domain takings of hospital
property. Id. Specifically, the MBTA contended that the
hospital had no right to access its property across location
lines shown on the highway ramp layout. Id. at 763-764.
We concluded, however, that, as the fee owner, the hospital
had the right to access its property across these location
lines, given that DPW had only taken an easement on the
property, not a fee; the easement had been taken for "highway
purposes"; and "[t]he height of the ramp where it crosse[d] [the
has not the right afterwards to change the location to some
other part of the land"); Chandler v. Jamaica Pond Aqueduct
Corp., 125 Mass. 544, 550 (1878) (easement to lay pipes and keep
and support them forever did not include right to change
location of pipes once they had been laid). See also
Restatement (Third) of Property: Servitudes § 4.8 comment c
("When improvements are constructed or installed on the servient
estate for the enjoyment of a servitude without objection from
the servient owner, the parties have given a practical
construction to the instrument or agreement that created the
servitude. Even if the instrument specifies a different
location, the location is fixed by the placement of the
improvements unless the language or circumstances lead to the
conclusion that the initial location is temporary").
16
property] was adequate to permit the owner of the underlying fee
to use the area under the ramp without interfering with the
limited access highway." Id. at 764-765. Once DPW had
constructed the highway ramp, the hospital was free to access
and use the remaining land for parking, as long as the parking
did not interfere with the highway. See id. at 765-766.
Similarly, here, under the 1991 taking, the fee holder of what
is now Smiley's land was entitled to access to the burdened
land, so long as that access did not interfere with the
operations of the railroad track built by Conrail.
d. Scope of 2018 taking. The 2018 taking provides that
the easement for "railroad purposes" "permits [MassDOT] and its
lawful successors and assigns to use the Remainder Railroad
Easement Area for all lawful railroad purposes within the
Commonwealth of Massachusetts." The 2018 taking further
specifies that such uses shall include "(a) the use of the
Remainder Railroad Easement Area[6] by railroads powered by any
source, for purposes including, but not limited to, the
deployment, testing, calibration, and storage of rapid transit
rail vehicles; and (b) uses reasonably related to such railroad
6 The 2018 taking defines the "Remainder Railroad Easement
Area" as "an easement for railroad purposes as described and
more particularly set forth in the 1991 [t]aking and/or in this
instrument over the parcel of land comprised of portions of the
Easement Parcel as more particularly shown on the plan of land
hereinafter described."
17
purposes such as access, parking and utility needs in connection
therewith."
We conclude that the scope of the 2018 easement exceeds the
scope of the 1991 taking and that the motion judge erred in
determining otherwise. The judge misconstrued the extent of the
1991 easement in large part because, in his view, certain
ordinary rules of construction of easements were inapplicable to
an easement taken by eminent domain. As stated, however, other
than the exclusion of any consideration of the parties' intent,
we consistently have applied the ordinary rules of
interpretation of easements to easements taken by eminent
domain, see General Hosp. Corp., 423 Mass. at 764-765, and
MassDOT has not proffered any reason for us to revisit that
view.
Here, whereas the purpose of the 1991 taking was to
relocate railroad rights of way and Conrail's facilities, the
2018 taking provides, "[f]or the avoidance of doubt," that it
encompasses the 1991 purpose, but that it also includes "all
lawful railroad purposes within the Commonwealth."
Specifically, the 2018 taking states that it encompasses,
"without limitation," testing, calibration, and storage of any
type of railroad vehicle, and the associated uses such as
parking that are necessary to those primary uses.
18
The Red Line test track project, which falls within this
language, is a new and different project from the original
relocation of Conrail's railroad track and facilities. It
involves an additional 6,000 square foot building, a different
type of railroad car, and a considerably larger portion of the
burdened land than did the single track originally constructed
by Conrail pursuant to the 1991 easement. Indeed, the 2018
taking permits the easement holder to use the "Remainder
Railroad Easement Area" -- i.e., the entirety of the burdened
land, not just the right of way taken up by the relocated
Conrail track -– for "all lawful railroad purposes within the
Commonwealth." Thus, the easement holder now may engage in any
"railroad purposes," anytime and anywhere on the burdened land.
Consequently, the 2018 easement makes it virtually impossible
for the fee holder to build anywhere else on the burdened land,
because the owner of the fee can never know whether or when the
easement holder might seek to exercise its rights on that part
of the burdened land.
MassDOT raises a number of arguments as to why the 1991
easement is just as sweeping in extent as the 2018 easement.
These arguments are unpersuasive. If the purpose of the 1991
easement was to relocate Conrail's right of way and facilities
to support construction of the haul road, and if the location of
the easement became fixed once Conrail completed that process,
19
then clearly the 1991 easement did not authorize the very
different and larger Red Line test track project nearly thirty
years later. In particular, MassDOT contends that the provision
in the 1991 taking that the easement "shall be used for railroad
purposes only" broadly authorizes use of the 1991 easement for
any railroad purpose in the future, including the Red Line test
track project. That provision, however, is plainly a
restriction on the use of the 1991 easement; it prohibits
Conrail or a successor from using the easement for something
other than railroad purposes. As such, it remains subordinate
to the over-all governing purpose of the 1991 easement, namely,
the relocation of Conrail's right of way and facilities to
support construction of the haul road. The provision does not
supersede that overarching governing purpose so as to expand the
scope of the easement to include any future railroad purpose.
As discussed, an easement taken by eminent domain must be
construed in light of the "circumstances surrounding the
taking." General Hosp. Corp., 423 Mass. at 764. In that case,
for example, DPW had granted the Massachusetts Transit Authority
(MTA) (the predecessor of the MBTA) the right to maintain its
existing transit lines running through a DPW highway layout.
Id. at 761. The right to maintain included the right to
"construct, reconstruct, maintain, repair, and operate [the]
structures." Id. Because the MTA's only structures within the
20
layout at that time were elevated tracks, no reasonable
interpretation of the language of the easement granted the MTA
the right to build an underground parking garage. Similarly,
here, the phrase "for railroad purposes only" in the 1991 taking
should not be viewed out of context as authorizing the Red Line
test track project nearly thirty years later, when clearly the
purpose of the 1991 taking was to facilitate the relocation of
Conrail's facilities.
e. Use of like kind. MassDOT further argues, relying on
Leroy v. Worcester St. Ry., 287 Mass. 1, 10-15 (1934), that the
use of the easement for a test track and a building to hold new
subway cars was permissible under the 1991 taking because the
new use did not differ in kind from the original railroad use
set forth in the 1991 taking. In Leroy, the court held that an
easement that had been taken for operation of a steam railway
properly could be used for a motor bus, applying the principle
that an easement taken for one public purpose may be used for a
"public use of a like kind." Leroy, supra at 13. In either
event, the court reasoned, "the essential purpose was to . . .
transport members of the public." Id. at 12.
The Red Line test track project, however, is not a public
use of a like kind. The 1991 easement provided Conrail the
right to relocate its operations, which proved to be a single
track. In contrast, the Red Line test track project involves
21
not only a test track, but also a large new building, parking,
and another track.
f. Doctrine of practical location. MassDOT also contends
that because the 1991 easement covered the entirety of the
12,510 square foot area set forth in the 1991 taking, the use of
the entire burdened area for the Red Line test track was
permissible. We disagree.
The 1991 taking states at the outset of the relevant
passage that "[e]asements are hereby taken in [three] parcels[,
including] 60-E-RR-1, . . . for the relocation of the facilities
of [Conrail]." Contrary to MassDOT's contention, this language
does not "clearly and unambiguously" establish that those
easements were intended to cover the entirety of each parcel.
Rather, the language merely refers to an easement in some
portion of each enumerated parcel.
Under the 1991 easement, Conrail was free to relocate its
operations wherever it chose within the scope of the easement on
each parcel. Once it did so, however, the location of the
easement became fixed, see Leroy, 287 Mass. at 14; Naumkeag
Steam Cotton Co. v. American Glue Co., 244 Mass. 506, 508
(1923), and the fee owner was free to develop the remainder of
the parcel and the air rights, see General Hosp. Corp., 423
Mass. at 764. MassDOT's contention that possession of the
easement continued to give the easement holder complete control
22
to construct additional facilities anywhere on the burdened land
is inconsistent with the fundamental principles limiting the
dominant estate to the extent reasonably necessary for the
purpose of the taking, and protecting the right of the fee
holder to use the easement area to as great an extent as
possible, see id., as well as with the doctrine of practical
location, see Naumkeag Steam Cotton Co., supra; Bannon v.
Angier, 2 Allen 128, 129 (1861).
For this reason, we reject, as inapplicable, MassDOT's
argument that it would have been illegal under Federal law for
Conrail to "abandon" its rights over the rest of the burdened
land. Conrail never possessed a right to occupy the entire
parcel of burdened land in perpetuity. Conrail only possessed a
right to place its tracks and facilities in the place of its
choosing on the burdened land.7
We also conclude that the Appeals Court's decision in
Mugar, which MassDOT cites and upon which the motion judge
substantially relied, is distinguishable from the present case.
Mugar involved an action for compensation where the MBTA had
taken an easement for an "undefined right of access" from
7 MassDOT also cites Mahan v. Rockport, 287 Mass. 34, 37
(1934), for the proposition that rights are not lost by using
less than the entire area taken, but that case involved a public
way, which "once duly laid out continues to be such until
legally discontinued," and "may be discontinued by vote of the
town and not otherwise."
23
surrounding city streets to a parcel containing a subway vent
shaft near the center of the plaintiffs' parking lot. Mugar, 28
Mass. App. Ct. at 443-444. Because this access easement gave
the MBTA unlimited rights of passage from the city streets, it
necessarily prevented the plaintiffs from building anywhere in
the parking lot. See id. at 444. By contrast, here the 1991
taking included language that limited the scope of the easement
to the relocation of Conrail's facilities and explicitly allowed
the fee holder to develop the air rights on the burdened land
after a twelve-year period.
We are mindful that, in exercising the power of eminent
domain in 1991, DPW had the power to choose how it wished to
articulate the scope of the easement. If it had intended to
establish a perpetual right to occupy all of the burdened
property, then it could have done so unequivocally, but it did
not. When the scope and extent of a taking is unclear, we must
adopt the narrower interpretation of its language, in favor of
freedom of the land from servitude, as long as it is otherwise
consistent with applicable legal principles. See General Hosp.
Corp., 423 Mass. at 764.
g. Just compensation. Because the scope of the 2018
easement exceeded the scope of the 1991 easement, it represented
an additional taking. Accordingly, Smiley's claim for damages
24
under G. L. c. 79 should not have been dismissed, and, on
remand, Smiley is entitled to pursue its claim for damages.
3. Conclusion. The summary judgment is reversed. The
matter is remanded to the Superior Court for entry of a
declaratory judgment in favor of Smiley that the 2018 easement
exceeded the scope of the 1991 easement and, in particular, did
not encompass a use such as the Red Line test track project, and
for further proceedings on the compensation Smiley is due
pursuant to G. L. c. 79, § 14, as a result of the 2018 taking.
So ordered.