Opinion
No. 12–P–704.
2013-05-30
John RYDER v. TOWN OF NAHANT & another.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought an action in Land Court, pressing a claim to quiet title to a strip of land. A judge allowed the town's motion for summary judgment, ruling that the land in question had been taken for “public purposes” by the town in 1899.
Background. The plaintiff, John Ryder, became the owner of 64 Spring Road in Nahant by deed on October 23, 2006. At contention is a strip of land, approximately ten feet wide, that abuts the plaintiff's property (disputed land). The town of Nahant (town) claims that the disputed land was subjected to a public taking in 1899, and is part of High Street (the so-called High Street extension). The disputed land has never been paved and approximately fifty square feet of that land is encumbered by the plaintiff's stone barn. On February 18, 2009, the plaintiff filed a complaint in Land Court, seeking to quiet title and/or adversely possess. The town moved for a judgment on the pleadings. In a decision dated September 22, 2010, a judge made findings as to the 1899 taking. The town then filed a motion for summary judgment, which was allowed by the same judge in a decision dated October 7, 2011. The plaintiff now appeals.
We reserve additional facts for our analysis below.
Discussion. A. Summary judgment. We review a grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); Flesner Technical Communications Corp., 410 Mass. 805, 809 (1991) (moving party's burden to demonstrate the absence of a triable issue may be met by affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of that element at trial). See also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). We conclude that the decision dated October 7, 2011, allowing the town's motion for summary judgment was correct, as the plaintiff had no reasonable expectation of demonstrating that the 1899 taking was invalid.
In support of that decision, the judge found on the evidence before him and on the guiding language of chapter 49 of the Public Statutes, that in 1899, the town successfully controlled the disputed land. With respect to the statute, the judge determined that the town was required to satisfy four requirements: (1) the layout (including its boundaries and measurements) of the proposed way must be reported to the town clerk seven days prior to a town meeting; (2) the proposed way must be accepted at a town meeting; (3) if accepted, a description of such way must be reported to the town clerk, who shall record the way in a book of records “kept for that purpose” within ten days; and (4) the town must take possession of such way within two years.
In his prior decision dated September 22, 2010, the judge found that the town had sufficiently met the requirements of conditions one and two.
The public taking requirements were created pursuant to §§ 71, 80, and 88 of chapter 49 of the Public Statutes of 1882.
Thus, the critical issues became whether the town clerk recorded the 1899 taking in a book of records within ten days and if the town took possession of the disputed land within two years.
The plaintiff's affidavits refuting the measurements and boundaries of the disputed land recorded in 1899 are of no avail. Article 10 of the March 18, 1899, annual town meeting clearly describes the proposed High Street extension, which includes the disputed land.
We agree with the judge that the 1989 taking was properly recorded. To meet the threshold of requirement three, the town offered pages from a volume entitled Town of Nahant—Records of 1892 (Record Book).
As found in the Record Book: (1) pages 159 and 160 contain notes regarding the March 18, 1899, acceptance of the report on the laying out of the High Street extension; (2) pages 162 and 163, regarding the town election results of the same date, were written in present tense, indicating simultaneous voting and recording; and (3) page 164 shows a petition for an election recount three days later.
The Record Book contains town records from 1892 through 1911.
Furthermore, the town submitted an affidavit from the town clerk, who attested that in early years “recordings were made by hand and simultaneously entered into a book, which was kept on an annual basis.”
Three days after the recordings on March 18, 1899, fifteen registered voters petitioned the town to recount the election ballots of a specific candidate. An inference can be drawn that the recordings were decided and officially became a part of the town's records.
The plaintiff, however, contends that the Record Book cannot comply with § 80 of chapter 49 of the Public Statues because it contains records of additional matters, such as election outcomes. He goes on to argue that the statute requires any taking to be recorded in an independent and exclusive book. We disagree. See Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 n.2 (2000) (“[S]tatutory interpretation is a question of law for the court to decide”). There is no indication that “kept for that purpose” meant that the recording of the taking should be separate and apart from any other town matters. Moreover, the plaintiff has not proffered any evidence to support his interpretation of exclusivity.
Finally, the plaintiff makes additional claims that the town failed to take possession of the disputed land. This argument also fails. The record demonstrates that in 1900 the town spent about $470 for materials to extend sewers and about $550 for road work on the High Street extension, which included the disputed land.
Although the disputed land was never paved, there is some record evidence that the town voted to improve that land.
B. Adverse possession. In the alternative, the plaintiff sought to claim the disputed land under the theory of adverse possession.
The burden of proving adverse possession is on the person claiming title thereby and “extends to all of the necessary elements of such possession.” Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968). The town correctly argues that G.L. c. 260, § 31, prohibits a person from obtaining adverse possession of land held by a town for public purposes. See G.L. c. 82, § 32A. Thus, the plaintiff's argument that the disputed land was subject to adverse possession may properly be rejected.
“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Kendall v. Selvaggio, 413 Mass. 619, 621–622 (1992), quoting from Ryan v. Stavros, 348 Mass. 251, 262 (1964).
The plaintiff's corollary argument that the town's failure to use the disputed land made it subject to adverse possession is also unavailing. Delays in developing the land do not alter the applicable legal analysis. “It is not unreasonable for [a government entity] to refrain from developing property unless and until there is a need to do so. To require town boards in control of land to do otherwise would encourage unnecessary or premature development and preclude careful planning for future needs.” Harris v. Wayland, 392 Mass. 237, 242 (1984).
Judgment affirmed.