Easements Taken by Eminent Domain Still Subject to General Rules of Construction

by Shamus J. Hyland 

Introduction

The Massachusetts Supreme Judicial Court (“SJC”) in Smiley First LLC v. Department of Transportation, 492 Mass. 103 (2023) recently clarified how to determine the scope of easement interests taken by public entities via eminent domain. The Court concluded that, while the intent of the parties to a taking should be disregarded when determining the extent of an easement interest, “the ordinary rules of interpretation for easements otherwise apply.” Id. at 104-05. Therefore, easements taken by eminent domain are still amenable to classic property law rules of construction including that doubts about the scope of an easement should be resolved in favor of “freedom of land from servitude.” Id. at 109. As a result, if a condemnor later enlarges the scope of a taken easement, the burdened property owner may be owed compensation. Smiley also underscores the importance of careful drafting in takings and easement interests, as the principles of statutory interpretation apply when interpreting the text of the taking order.

Case Background

Smiley centered on an easement interest taken by eminent domain in 1991 by the Massachusetts Department of Transportation’s (“MassDOT”) predecessor in interest, the Massachusetts Department of Public Works (“DPW”). The purpose of the easement was “the relocation of the facilities of the Consolidated Rail Corporation [(Conrail)],” which were to be displaced by construction related to the “Big Dig.” Id. at 104. The easement was “for railroad purposes only.” Id.  The taking order also contained a license for Conrail to use the easement for ancillary “railroad purposes.” Id. Pursuant to the easement, Conrail relocated its main rail line to a single track that crosses what is now the property of Smiley First LLC (“Smiley”). Id.

In 2017, MassDOT announced that it was sponsoring an MBTA project to construct a 6,000 sq. ft. building and test track for newly purchased Red Line subway cars. MassDOT authorized the project in reliance on the 1991 taking, citing the language of “railroad purposes” in the original instrument. Smiley, the owner of the burdened land, objected to the easement’s scope and challenged MassDOT’s newly contemplated use in the Land Court. In response, MassDOT recorded a 2018 confirmatory order of taking of the 1991 easement and “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.” Id. at 106-07.

Eventually, the dispute made its way to Superior Court, where Smiley sought a declaratory judgment concerning the parties’ respective rights under the 1991 easement as of January 11, 2018 (the day before the 2018 taking), and damages. The Superior Court granted summary judgment in favor of MassDOT, taking a capacious view of “railroad purposes” language in the 1991 easement. The Superior Court also found Smiley’s reliance on general easement principles unavailing “because they derive from cases that concern transfers or prescriptive rights involving private parties.” Id. at 108 (citations omitted) (emphasis in original).

The SJC disagreed. Easements taken by eminent domain, the court concluded, “must be construed in light of the language of the order of taking and the circumstances surrounding the taking,” but “the intents of the owner and government entity taking the easement are not relevant.” Id. at 109 (citing Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443, 445 (1990)). The SJC explained that the intentions of the parties to a taking are irrelevant because: (1) the taking for a public purpose is effective without the consent of the owner; and (2) the intent of the government is “largely beyond the scope of judicial scrutiny.” Id. at 108.

At the same time, the Court noted that while a party’s intent is irrelevant, traditional legal principles governing easements still apply, even in the eminent domain context. In particular:

• “Restrictions on land are disfavored;”
• “[D]oubts concerning the rights of use of easement are to be resolved in favor of freedom of land from servitude;” and
• “[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.”

The SJC held that the lower court erred in suggesting these principles are relevant only as to easements between private parties. Id.

The upshot is that a court should disregard the intents of the parties to an easement taking but must otherwise apply all traditional principles of construction to determine the easement’s scope.

As applied in Smiley, the express language of the 1991 taking limited the easement. Its 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.” Id. at 110. The taking specifically mentioned the relocation of Conrail facilities. Notwithstanding the language regarding “railroad purposes,” the license did not open up the land for any railroad-related usage decades later. In concert with the language of the taking order, the license was “to partially replace and restore the [c]urrent [Conrail] Rail Facilities and Conrail Land affected or eliminated by the Haul Road.” Id. The Court held that once Conrail relocated its single track to the burdened property, “the scope of the easement … was fixed and limited to the right of way occupied by Conrail’s track and the vertical dimension above it.” Id. at 111.

MassDOT’s argument before the SJC relied on Leroy v. Worcester Street Railway Co., 287 Mass. 1, 10-15 (1934), which held that an easement taken for one public purpose may be used for a “public use of a like kind.” Smiley First, 492 Mass. at 114-15. In Leroy, a permanent easement taken for a steam railway could be used for a motor bus in the same easement corridor because “the essential purpose was to . . . transport members of the public.” Leroy, 287 Mass. at 12. The SJC disagreed with MassDOT, contrasting the 1991 taking’s provision to relocate Conrail operations, which ended up on a single track, with the MBTA’s proposal to construct a test track, a new building, and an additional track. Set against the default principle that easements should be narrowly construed, the court found the new test track project too far removed from the original purpose and scope of the 1991 taking. The new use amounted to a new compensable taking. Smiley First, 492 Mass. at 115-16.

Some Practical Considerations 

The Smiley decision is significant for government or quasi-government agencies with eminent domain power. Practitioners should be aware that, in the takings context, basic easement construction principles still apply. When drafting easement interests, stakeholders should consider how to frame the taking to accomplish public purposes but avoid circumscribing the easement to prevent future uses. As the SJC found in Smiley “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.” Id. at 116. The same reasoning applies when the contemplated use is diminished relative to the scope of the original taking. See Mugar, 28 Mass. App. Ct. at 447.

When pursuing new projects in reliance upon existing property interests, government actors should scrutinize the text of older taking orders. Broad language adverting to public purposes may suffice to vest the interest but may not be enough to avoid compensating a burdened owner for what could be ruled an augmented use. Depending on the entity’s needs, budget, and overall project goals, operative language should be tailored to specific ends, or else remain broad enough to cover future uses “of a like kind.”

For All ‘Intents’ and ‘Purposes’

Smiley also raised interesting questions about “purpose” and “intent.” In the eminent domain context, “[j]udicial review is limited to the questions whether a taking was made for a legitimate public purpose, . . . and whether the deprived landowner received just compensation.” Mugar, 28 Mass. App. Ct. at 446 (citations omitted). On the one hand, Smiley affirmed that “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.” Smiley, 492 Mass. at 109 (citations omitted) (emphasis added). On the other hand, a central consideration for courts interpreting the scope of an easement taken by eminent domain is the “purpose of the taking” because the dominant estate’s interest is limited “to the extent reasonably necessary for the purpose of the taking.” Id. at 105 (citation omitted) (emphasis added).

In practice, what does it mean to disregard the parties’ “intent” and only examine the taking’s “purpose”? Is it possible to conceptualize a taking’s “purpose” apart from the condemnor’s “intent”? An eminent domain easement must be construed not only “in light of the language of the order of taking” but also by “the circumstances surrounding the taking.” Id. at 108. What counts as a relevant circumstance? And what if the “circumstances” conflict with the text of the taking order? As Smiley shows, even enumerated purposes in the text can be vague enough to sow doubt about the extent of a property interest.

One source of conceptual tension: courts are required to read taking orders like statutes. “An order of taking in writing, duly recorded, in conformity with the statute authorizing the order of taking, is to be treated as if it were a statute.” General Hosp. Corp. v. Massachusetts Bay Transp. Auth., 423 Mass. 759, 764 n.3 (1996) (citing Boston v. Talbot, 206 Mass. 82, 90 (1910)). In Massachusetts, “the primary goal in interpreting a statute is to effectuate the intent of the Legislature.” Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018). If construing a taking order is a species of statutory interpretation, then the aim (in theory) should be to effectuate background “intent.” But Smiley reaffirms that intent is “not relevant.” Thus, a court must determine the scope of a taken easement in light of its abstract “purpose,” but disregard the intent of the entity that issued the taking order. Further, if the analogy to statutory interpretation holds, then defining the compass of an easement is attended by the challenges confronting statutory interpretation in general.¹

Another possible source of confusion is that the “purpose” of a taking or connected takings may be broader than the specific “purpose” served by an easement ancillary to the overall project.  One approach would gloss “purpose” as the abstract general purpose of the “enactment”—here, the taking order—and eschew trickier nuances of “intent” as they apply to a particular condemnation. In Smiley, the SJC adverted to the “overarching governing purpose” of relocating Conrail’s right of way, which prevailed over MassDOT’s later (and broader) reading of the “railroad purposes only” provision. Smiley, 492 Mass. at 114.

As in statutory interpretation, the text of a taking order is paramount. But divining the “purpose served by the taking” or the “overarching governing purpose” may well require reconstructing the “intent” of the condemnor. What was the condemnor trying to accomplish with this particular property interest? How did the easement fit into the larger plan? Answering such questions may be at odds with the principle that the intent of a governmental entity is “largely beyond judicial scrutiny.” But, as the SJC pointed out long ago, allowing parties to inquire into the motive of the government entity exercising eminent domain “would be seriously to hamper public officers in the performance of duties necessary to the public welfare,” could lead to additional unnecessary litigation, and would undermine the ordinary presumption that government officials act in good faith. Despatchers’ Cafe, Inc. v. Somerville Hous. Auth., 332 Mass. 259, 263 (1955). The Court allowed that there could be a rare future case in which the government acted in bad faith in exercise the eminent domain power, and that a landowner could challenge the taking on that ground. Id. at 263-64. But scrutinizing intent is rare, and the bar to prove bad faith is high. As the SJC has explained, “[w]e should not easily attribute improper motives to a town and to its citizens voting at town meeting” in effecting a taking, “if there were valid reasons that would have supported the town’s action.” Pheasant Ridge Assocs. Ltd. P’ship v. Town of Burlington, 399 Mass. 771, 777 (1986).²

In view of the conceptual blurring between purpose and intent, litigants may continue to test boundaries and challenge the “impelling motives” of a taking where the overall “purpose” is sufficiently vague. “Overarching governing purpose” may be a focus of litigation where the text of a taking order is vague or ambiguous. As a matter of good practice, taking entities should remain transparent about their aims and draft clear taking orders mindful of the usual rules governing construction of easements.

1.  For some history and analysis of the problems surrounding statutory interpretation and legislative intent, see generally, John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397 (2017).

2. See also Boston v. Talbot, 206 Mass. 82, 90 (1910) (“The ‘sense of the commission,’ the belief of the commission, and the ‘conclusion’ of the commission in reference to the taking, are to be determined from their final act of taking. The offers, in these particulars, seem to be attempts to show the views and opinions of individual members of the commission, which could not be put in evidence.”).

Shamus J. Hyland is an Assistant Corporation Counsel in the City of Boston Law Department. The views expressed in this article are his own and do not necessarily reflect those of the City of Boston or the Law Department.