(woman talking)
-: SJC-12738 Town of Sudbury v. Massachusetts Bay
Transportation Authority.
-: Good morning, may it please the court.
My name is George Pucci, and I represent
the appellant, Town of Sudbury.
Ralph: Hang on one second, one second
so we can get the clock going.
Okay, yes, you're still Mr. Pucci, go ahead.
-: Thank you, your honor.
With me today is co-counsel Audrey Eidelman as well.
This case involves application of the
prior public use doctrine applicable when a
land acquired or taken for a particular public use
is diverted to an inconsistent public use,
and that requires specific legislative authorization.
Elspeth: Okay, slow down one minute and just tell me
as if I had no land experience whatsoever, zero.
What is the meaning of that easement
on the land for the MBTA?
What does that mean that they can do with it?
-: The MBTA actually didn't acquire an easement.
It actually acquired the fee, it had--
-: It's an acquired a fee.
-: Yes, your honor.
There were two operative documents,
and one is an indenture it's called with
the bankrupt B&M Railroad, and by that deed,
they acquired the right to quote to operate
a passenger and freight rail service
over the rail line rights of way
that pre-existed with B&M.
-: So the MBTA acquired that pre-existing
right of way over the land? -: Correct, your honor.
-: With an express fee saying this is
what you can do with it.
-: Basically a fee, yes.
A fee interest. -: So it's not
it's not an easement.
-: No, it's not an easement, your honor.
-: And it's not a taking.
-: It is a taking. -: It is a taking.
George: That's prong number two.
-: All right.
-: So these railroad rights of way,
the title is always complicated,
so in conjunction with that acquisition
with the fee interest, they also did
an eminent domain taking under their statutory authority
under chapter 161.a.
Their taking, and this goes to,
this is the central part of the case.
The taking quote was for the purpose of providing
and extending mass transportation facilities
for public use, closed quote.
So they exercise eminent domain power through this land
running through the town of Sudbury,
and that's the right of way that's at issue in this case.
-: Who exercised that?
Who exercised the right of way,
who exercised the power of eminent domain?
-: The MBTA did. -: The MBTA did.
-: In this case, yes, under a section of chapter 161.a,
they do have public eminent domain power
to acquire for transportation purposes, and in fact,
that taking was, as I said, expressly limited
to that public purpose of mass transportation
for public use.
So what the town is arguing in this case
is under this prior public use doctrine
where land was taken for a particular public use,
it can't just be diverted for any other public use
without specific authorization and not general authorization
as the MBTA has under chapter 161.a
over corporate property, but specific legislation
specifically identifying that parcel,
identifying the parcel at issue and identifying the use
to which it will be changed.
-: But let me, I understand the prior public use doctrine
that if it were to apply, it would require
plain and explicit legislation to override it,
but the prior public use doctrine is a common law doctrine,
and the legislature by statute may override
a common law doctrine, and why should we not conclude
that the legislature by enacting chapter 161.a,
section 3.m, at least with regard to easements,
overrode the common law doctrine and said
the MBTA can grant any easements over any real property
held by the Authority as will not in the judgment
of the Authority unduly interfere with the operation
of any of its mass transportation facilities?
Why is that not simply the ability of the legislature
to say we're gonna override by statute
a common law doctrine?
-: The legislature absolutely has that authority.
It wasn't exercised here 'cause that's again,
it's a general authorizing type of legislation
over their general property.
Where the prior public use doctrine should trump that
has to do with this particular parcel was acquired
for a particular public purpose, used for such.
In that case, they have to go back to the legislature
to specifically identify that parcel and get
specific authorization under special legislation
identifying it and advising the legislature
of the proposed use.
If a piece of property was acquired by the public entity
under its eminent domain power,
they're not free to do whatever they want
under general authorizing legislation
under the case law for prior public use.
One instance where that would be relevant
to your honor's example is with the
one of the amicus briefs that was filed
by National Grid talked about the specific statute
that talks about a utility's right to petition
for a grant of location to a board of selectmen
or aldermen of a city to get a grant of location
for to put a transmission line over public ways.
In that instance your honor, absolutely,
that specific legislation giving that entity the right
to make that petition and giving the board of selectmen
or the aldermen of a city the right to allow
that grant of location.
In that case, the specific statute specifically conferring
that ability, that power, would in fact trump
the prior public use doctrine because it would trump
the common law doctrine.
There would be no reason for applying it
because there's a specific statute specifically
authorizing that particular land conveyance.
-: Does this have anything to do with the argument
having to do with what the impact would be
if we recognized your position on other transfers of land?
-: Yes your honor.
One of the grounds that the land court has cited
in denying the town's right to relief in this case
has sort of opened the flood gates argument,
and that argument is totally wrong.
Both the Land Court was wrong,
and the amicus briefs are wrong on that issue, 100% wrong,
and the instances they give are just not applicable.
An example, Article 97 land which as you know
with recent case law from the SJC,
that land is protected.
If either it's specifically acquired or deeded
with a deed restriction as such,
or it's devoted to reasons specified in Article 97.
That land cannot be diverted,
so a government entity holding that land under Article 97
cannot simply divert it to an inconsistent use
without getting a 2/3 vote of the legislature.
That's one instance.
When you're talking about public land being conveyed
to private interests for some type of
private development or say a electric transmission line.
Another example, and these are cited in the amicus briefs.
They actually prove the town's point.
Land held by a municipality for a particular
public purpose cannot be sold to a private party
without first following procedures and town meeting
approvals required under chapter 40, section 15.a.
In that instance, town meeting is acting
as the legislative body for the municipality.
A municipality acquired land for a particular public use.
They can't just do whatever they want with it
without that legislative authority specifically identifying
the parcel and specifically identifying the reason
that the use of that parcel is going to be diverted.
Other examples right from the amicus briefs
which highlight the strength of the town's case,
in the NAIOP REBA brief, they cited
schoolhouse or historic buildings being converted to
affordable housing or commercial space.
I'll point out again, town meeting approval is required
that first you need a town meeting vote transferring
custody and control of the building from either
the school or whatever purpose that public building
was held to affordable housing or for commercial purposes,
again under chapter 40, section 15.a.
Town meeting approval is also required to authorize
either conveyance of the fee title
for affordable housing purposes or commercial purposes.
-: So is your point that the flood gate are not
gonna open because they can't open?
Because there are already other--
-: Exactly your honor.
This is a very limited circumstance where
the prior public use doctrine comes into play
with all these other specific legislative requirements.
Just to complete the point on that is the town
would then have to either convey the fee title
in that public building from school or other
municipal use over to affordable housing
or commercial use.
They have to get town meeting approval for the conveyance
of the fee title or ground lease, either one.
They also have to issue a request for proposal,
even if they have the greatest thing since sliced bread
in terms of a potential project,
they still have to bid that out under
the procedure provided under chapter 30.b.
Another example of this that there is no opening
of the flood gates in this case.
NAIOP and REBA talk about the City of Worcester's plan
to build a minor league ball park--
-: I'm not sure I get that, so let's take the MBTA,
let's take the Massachusetts Port Authority,
these giant independent authorities we have
that have these sort of general,
they're supposed to run an airport or a seaport
or they're supposed to run the transportation system.
If they change any property use,
like the MBTA's going broke and they convert
some dilapidated rail to something that makes money
that helps pay for rail elsewhere,
that requires, that's a violation of the
public use doctrine for you?
-: No, in fact they have a mandate under the statute
to enhance their revenue opportunities,
so they can use MBTA--
-: They're changing the use.
They're changing it from a rail to something else.
-: Well no, they're not changing the use.
They're not eliminating the use for which
they acquired the property.
They may, like in the instance of one of the cases.
-: They're not here either, right?
They're making money off of the transmission
of the electrical lines, right?
-: Yes, but they're not--
-: And I assume they're fulfilling environmental
commitments by creating bike ways.
Is that wrong, too?
-: Well it's illegal, it's what we're arguing.
I'm not saying it's right or wrong.
-: But you said that they can make conversions
so long as they're consistent with their stated missions.
-: If the property was acquired
for a particular public purpose,
they need the legislation specifically authorizing it.
If this use is-- -: But remember,
the MBTA is there, it also needs to generate revenue.
The same thing with the port and other
and the Commonwealth itself, too.
I'm just trying to understand,
if you change a use to a profitable use to help
pay for the mission of these entities,
you're now saying that has to.
You build a car rental facility at the airport.
That's not airplanes. -: No because it--
-: Does that require a conversion of use,
is that a violation of the public use doctrine?
-: No your honor. -: Why not?
-: Because the use would be incidental to the primary purpose
for which that public property is being used,
so if you take the instance of, say you go to Self Station
and the trains come and go and they lease out space
to restaurants and whatever to go in,
if that doesn't impede the use of that property
for the mass transportation,
and I don't know the purpose--
-: So they own a parking lot out in the middle of nowhere
that no one's using, and then they convert it,
they sell the property to make some money
or they lease the property to make money.
Is that a violation of the public use doctrine?
George: No, not necessarily.
-: How is that different than this?
-: Because it would matter if they how they acquired
that title to that property.
If they acquired it under a taking
for a particular public use, they may need.
Scott: To run transportation,
to fulfill their transportation.
-: If it was acquired for mass transportation purposes, yes,
I would argue that the prior public use doctrine
would apply, that they would need special legislation
which is not an uncommon thing to get special legislation
from a legislature specifically identifying a property
that was used for a prior particular public use
and diverting it to another public use.
In that instance, it may not apply because it may not
have been acquired for a particular public use.
Here, this property was taken by eminent domain
for mass transportation purposes.
The other thing I would point out your honor is
the use here is not incidental to mass transportation
for public use.
The new use will preclude the use for public transportation,
and we have factual allegations in the complaint about that
following the. -: You're putting in
the electrical, the power grid below it is going to
preclude the use of this?
-: In this instance, it will your honor.
We have extensive allegations which must be taken as true
for the purpose of a motion to dismiss talking about
the topography in this area,
so in an area where the line will be located
directly beneath the pre-existing railroad right of way,
it's precluded because of
insufficient ballast beneath that.
If they do it outside of that way,
but within the right of the entire 82.5 right of way
of the MBTA, topography also because of
slopes and waterways, you can't construct a line there,
so this new use is going to preclude active rail purposes,
so it's inconsistent with the prior public use.
My red light is flashing, but one last instance,
and you framed this issue in terms of
diversion to a private use,
and the key on that is it's not whether it's
a private use or public use which is relevant
under the recent case law that the SJC has had
on these issues talking about the
prior public use doctrine.
It has to do with what the purpose,
whether that purpose of the public land was acquired
for a particular public purpose.
-: Chief Justice Piper, who is an expert in this,
there are no cases applying it to the
transfer to a private use.
Is there a case that--
-: One case your honor that I would point out,
and it's cited in your Mahajan versus
Department of Environmental Protection case,
and you'll recall that involves
Boston Redevelopment Authority property,
and the court went on to talk about
the prior public use doctrine, and by the way,
the prior public use doctrine is still alive and well.
It's not limited to--
-: Can you just answer the question.
So there is a case saying the public use doctrine
applies when you transfer a public use to a private use.
-: One of the cases cited in Mahajan when it was talking
about the history of the prior public use doctrine
cited a case Muir, M-U-I-R, versus Lemonster.
It was an appeals court case from 1974.
In that case, the court held that the doctrine
was inapplicable to the sale for commercial purposes
of a parcel of land where that parcel had been conveyed
to the city as a gift with no limitation on its use,
but was in fact used as a playground
and for other recreational purposes.
The case held in this case, there had been neither
prior legislative authorization of a taking
for a particular purpose nor a prior public
or private grant restricted to a particular public purpose.
Therefore, the court held in that case
that the prior public use doctrine
didn't preclude the diverted use,
not because it was. -: But it was the--
-: Not because it was. -: Can you just, again,
we're gonna lose you, did that case apply to a private use,
a transfer from a public use to a private use?
-: Yes, a proposed sale for commercial purposes
of that parcel of land.
The court held that the doctrine did not apply
only because it was not acquired for a specific use
that was inconsistent with that,
not based on the fact that it was going to be sold
to a commercial entity.
-: All right, thank you. -: Thank you.
-: Mr. Heuer, is it hoo-er?
-: Good morning, I'm Thaddeus Heuer on behalf of the MBTA.
Mr. Chief Justice, may it please the court,
the Land Court's dismissal should be affirmed,
and I'd like to make three points here.
First, this court has asked in its amicus solicitation
whether the doctrine should be expanded
to cover private uses, and the answer to that is no.
Expansion would supplant existing explicit
legislative intent.
It would run contrary to the doctrine's
very limited purposes, and it would create significant
adverse policy consequences for state agencies,
private parties, and even municipalities like Sudbury,
and even given this court's retroactivity precedence,
even if expanded, it wouldn't apply here.
Second, Sudbury lacks standing.
Sudbury concedes it can't demonstrate an injury here
and instead contends that Braintree case in this court
created injury from a municipal standing by implication.
-: So you think we can handle that matter
even though there's no standing, or allegedly no standing,
under our superintendents power?
-: As you know, this case was briefed in appeals court,
so the arguments that we made there about stare decisis.
Obviously, this court has power under Wellesley College
and other cases to use its superintendents power
to reach issues where the parties don't have standing.
That being said, Wellesley College is traditionally used
in cases where standing has not been raised below
and the matter's been fully briefed.
It's not intended to give a pass to the lower courts
to not have to address the issue of standing
where it is plainly and manifestly raised
at the time by the parties.
Third, dismissal was required here unless
all four prongs of the doctrine were implicated,
and those are a subsequent public use.
It was devoted initially to only one public use,
that's the Muir case.
A subsequent use that was inconsistent,
and plain and explicit legislation.
A century of uniform precedent as the Land Court determined
holds that the doctrine applies only where the public use
is on both the prior and the subsequent side,
and here, Eversource is a private party
with a private use.
Sudbury lost on that prong below,
but it fares no better on any of the other three.
It needs to demonstrate all four
in order to survive the motion to dismiss.
-: So you're not arguing 161.a, section 3.m gives you
the authority as a matter of statute
and overrides the common law.
-: I am absolutely arguing that section 3.m
overrides the common law.
The plain and explicit legislation
of the MBTA is manifest.
The MBTA takes its statutory requirements very seriously,
and its enabling statute, which is 161.a,
could not be more clear.
It has a legislative right to alienate land.
That's 3.q and 5.b.
It has the legislative right to grant easements
as you know, Chief Justice.
It has a legislative duty, not just a right, a duty,
to quote provide for the maximization
of non-transportation revenue from all sources.
That's section 11, and this court in the Sommerville case
held exactly on that point,
that the duty to maximize non-transportation revenue
is quote statutorily integrated with the MBTA's
quote essential function of mass transit,
and here in the doctrine context,
Higginson, the case from the early 1900s,
held that the plain, explicit test requires quote
ascertaining the will of the legislature
as manifested in its statutes.
161.a could not be clearer.
Repeatedly, there is explicit legislative intent
that the MBTA be entitled to manage its real property
without further intervention from the legislature.
-: So if the statute overrides the common law,
why do we need to address the issue of
whether the public use doctrine
should be or should not be extended to private purchases?
-: I do not know, your honor.
That was part of the amicus solicitation.
It was in two parts.
The first part was asking about this case.
The second part, obviously not briefed by other party,
was about whether the doctrine should be expanded.
Seeing as the court asked about it,
we are of course willing to provide
significant commentary on that policy issue.
-: And I guess the question,
I gather we don't have any or nearly no cases
which apply the public use doctrine in the context
of a sale to a private individual,
but I don't know that we have any cases in which
that was done and which it was said
that the public use doctrine does not apply either.
We just have silence.
So what do we do with that?
It's sort of weird over the course of 200 years
of the public use doctrine that we've yet to have a case
in which anybody has sought to apply it
in the context of a private sale.
Why is that?
-: It's not unusual because the doctrine
literally doesn't say that.
It says the prior public use doctrine applies
to a prior public use that is diverted
to an inconsistent subsequent public use.
The word public is on both sides of the equation.
-: I understand that, but I also know the Article 97
which is viewed as an extension of the
prior public use doctrine is not limited
to other public uses.
It would apply to the disposal of park land to anyone,
including a private person. -: Absolutely your honor.
-: So I mean at least with regard to the Article 97,
it is not limited to other public uses.
It would apply to any use.
-: Correct your honor.
Article 97, and I'm happy to discuss
Westfield in context here.
Article 97 is not an extension
of the prior public use doctrine.
It supplements the prior public use doctrine,
and I think it's notable to note that Article 97
is an article to the state constitution.
In other words, over 200 years had to pass
before we determined that conservation land
to be converted to a private use,
it required a constitutional amendment,
not the use of the prior public use doctrine
because clearly, the prior public use doctrine
was never contemplated to have applied
in those situations.
In order for it to go from conservation land to private use,
you now need a 2/3 vote of the legislature,
and my understanding on Smith v. Westfield,
although I would defer to your Chief,
is that the notion is that it was not intended
to limit the prior public use doctrine,
and we're certainly not saying it does.
-: If you've adequately answered that.
161.a, section three talks about grants such easements
over any real property held by the authority,
so when the MBTA holds a right of way,
is it in fact holding real property?
-: Absolutely.
It will depend on how it is taken.
Certainly it can hold the rights of way in many ways,
but usually holds them in fee.
-: Well okay, do you have a citation for that
or can you point me in the direction
of something that would say that?
-: That the MBTA holds its property in fee?
-: No, well that the right, what I just asked you
that when you said certainly, of course it would,
is that just a logic application,
or is that an interpretation?
-: It's the literal fact on the ground
-: The literal fact -: of how the MBTA
-: on the ground. -: holds property.
I mean, you'd have to go through the registry of deeds
and see how it is acquired, each piece of property,
just as you would for any property owner,
but the MBTA traditionally acquires property
either through purchase or it acquires it
through eminent domain.
It has the absolute legislative--
-: Okay, but it's holding only a right of way.
It's not holding the actual title to the property, correct?
-: No, it holds the title to the property.
-: It does? -: Yes.
-: So it's not a right of way issue.
-: It is. -: It is?
-: It is a right of way issue.
A right of way is merely how that piece of property is used
if it's dedicated as a right of way, particularly for
a rail purpose. -: Okay.
-: It becomes a rail right of way and it has
a specific meaning in the statutes and in the case law.
Elspeth: All right.
-: Do you want to address Muir versus Lemonster
'cause he is right that it, they could have just said hey,
this is a conversion of a public use
to a private use, but they instead,
the appeals court, and this was Chief Justice Hale
was a municipal lawyer,
spends a lot of time avoiding the issue, right?
-: He does, but at the end of the day,
the case stands to the proposition
that the doctrine doesn't apply.
Certainly, I'm not going to second--
-: But he kind of gets there very indirectly
as opposed to sort of answering the question
we have to answer which is whether the doctrine applies
to the conversion to a private use, right?
-: That's correct your honor,
but I would say that while the case may have
interesting dicta and he could have reached
that issue otherwise,
the ultimate conclusion of the case
is quite frankly what matters,
and what it concludes is that there was
more than one public use,
and therefore there is no doctrine applicability,
and I think the larger point is again going back to my
notion earlier that in order to survive a motion to dismiss,
the town needed to show that
all four prongs of the doctrine were met.
Any one of those prongs defeats the town
which is what happened below.
Judge Piper correctly noted that
there's no subsequent public use.
There's a private use.
That ended the inquiry.
The town repeatedly states in its brief
that Judge Piper found for them on the remaining three.
He literally did not reach.
-: Is that consistent sort of with the argument
that you said before that you say it is
encompassed by the statute, so it is a public use
meaning when they take that, when they give the money,
give this to the electrical company and make money off of it
and create a bike path,
they're fulfilling part of their public mission
which is to generate revenue for the MBTA and to
satisfy environmental commitments to create
these kinds of bike paths and other things,
so isn't it kind of a public use?
-: So if you're asking about the bike path element of it.
-: I'm asking for both 'cause I read the statute
the way the Chief just read it to you,
which is you're right that they can do these things,
but at the same time, that means it is a public use, right?
-: There is no dispute that the MBTA is a paradigmatic
public agency body politic corporate of the Commonwealth.
Everything it does just like MASSDOT or MASSPORT
or anything else would be deemed a public use,
but we need both sides of the equation
before the doctrine comes into play.
The MBTA on its side, certainly a prior public use,
but the issue is whether the subsequent use
is also a public use, and here,
it clearly is not. -: We determined that.
It's not a finding of fact by the judge.
You can't be doing that in a motion to dismiss, right?
The judge can't find facts in a motion to dismiss.
-: Certainly he can.
He determined as a matter of law,
and we can also look to Sheraby-Brandice--
-: As a matter of law, it's not a public use.
Thaddeus: As a matter of law, he found that Eversource
was clearly a private company.
-: Okay, a private company, but it's in a private use.
Thaddeus: Absolutely.
-: Private company can have public uses though, can't it?
Thaddeus: Not to my knowledge.
-: Uh huh, okay, so that's the basic thing.
You're saying a private company is dispositive.
Private company means private use.
-: Absolutely, and I think if you look at this court's
decision in Higginson, that's the 1912 case,
the court actually discusses what a public use
and a private use would be,
and the court says in Higginson that this is a quote
property of which a city or town,
and I think it would also apply to a state,
has acquired absolute ownership as an agency of the state
and which it holds strictly for public uses,
and then it goes on to note that water works,
sewage, gas, electric light markets historically
have been treated as proper subjects for private enterprise
even when assumed by a city or town
and have been regarded as private.
That's the case that we're all relying on,
and that's what it says about what a public use is
and what a private use is.
-: So help me to understand.
Put aside the 161.a.
Let's assume there was no statutory authority.
-: I'm happy to win on that basis. (laughs)
-: And let's assume, let's take a different case.
Let's assume that the MBTA by eminent domain
seized land in New Bedford in order to build
an extension of a train line to New Bedford
and spent a great deal of money for it,
and then ultimately said no,
we're not gonna build the train line.
We're gonna sell it to a private developer for housing.
Can they do that without any legislative approval?
-: They may your honor.
First I would just clarify that they would not be
seizing it, they would be paying just compensation
pursuant to chapter 79.
-: Okay, but they're paying it through eminent domain,
I understand that.
-: But they have acquired the land.
-: But the strange part is that if they said
we're gonna give it to the City of New Bedford
to use for some public purpose,
they would need legislative approval, correct?
-: Setting aside chapter 161.a and its express authority
that allows them to utilize their legislative authority
to deal with land transaction without restriction,
certainly that might be a situation
because the city of New Bedford
holds eminent domain authority.
I think one suggestion I would say is that given
the hierarchy of state, local, and municipal
that as we note in our brief,
the purpose of the prior public use doctrine,
one of its two main purposes, is to ensure that
two entities with competing eminent domain power
aren't using it against each other ad infinitum,
and it sets a default rule.
In that situation with the state and the municipality
at different levels, one suggestion I would have
is that that might not necessarily be the case
because it's not clear that City of New Bedford
actually has the delegated legislative authority
to take from a state agency.
If it did, then yes, that might be a circumstance
in which the prior public use doctrine could apply.
If it sells to the private developer--
-: How about in my hypo if they want to sell it
to a private developer to build housing?
-: Not covered by the prior public use doctrine.
Subsequent use is not a private, is not a public use.
-: So there's no problem for them to do that
even though it had been seized for purposes
of eminent domain for what was to be a transit use.
-: That's correct. -: And that's my problem
is understanding that leap there.
I'm having a hard time with what Justice Gants,
not with his question, but what the answer is to that.
It doesn't seem right to me that you can do this.
-: I think the question of what is right or not
goes back to the notion of common law versus the statute.
The common law fills gaps, it doesn't supplant statutes,
and it's an ancient doctrine, I get it,
but the legislature has kept up with it,
and over the years in repeated enabling acts
for all of the major land-holding agencies,
that's MASSDOT, MBTA, DCR, DCAM, MASSPORT,
they all have express authority to have essentially
unilateral control delegated by the legislature
over their real property transactions.
They all have the authority of eminent domain,
and they can use eminent domain.
I think the case law is very clear on this
that a property taken for eminent domain
need not necessarily be used for that purpose.
It goes into the general property bank of that entity,
and it can be used for any purpose within
the legislative authorization of that agency.
They're all limited by statute.
The MBTA can't go build a school,
but it can certainly use it for any mass transit use,
and it also has the authority, and indeed the obligation,
to maximize its non-transportation revenue,
so the legislature recognized that it could give
the authority to take and acquire,
and it also gave the authority expressly to alienate,
either because it wishes to or because it wishes to
enhance its non-transportation revenue.
-: That's actually a pretty broad power
that it gave to the MBTA there.
-: Absolutely, same power for there MBTA,
same power for MASSDOT, same power for MASSPORT.
These are large public agencies, very sophisticated.
They all have their own secretariat.
They're responsible to the legislature.
There's a recognition that literally in order
to run a railroad, you need to give some discretion
to the people whose job it is to run a railroad,
and that includes determining in their best interests
what is the appropriate way to manage
their real property assets.
-: And there's no supervision?
There's no way of being able to say
that they did it wrong or abused their discretion?
-: I suppose there is your honor, but again,
that kind of goes to Chief Justice Gants' point
about section 3.m of 161.a.
Legislature has expressly given the MBTA
the inherent and express authority to quote
(paper rustling)
grant easements over its real property,
quote as will not in the judgment of the authority
unduly interfere with the operation
of its mass transit facilities.
The legislature has expressly said we are giving this
to your judgment, MBTA.
I suppose there could be, -: Under that,
could the MBTA decide to sell most of its lines
to a private entity to run for profit allegedly?
-: It could, and over the years,
it has disposed of its assets.
-: I know it has disposed of some of them,
but how about the whole system?
Could it use that?
-: That's not this case -: I know. (laughs)
-: 'cause we're not disposing of anything,
but I think that's important.
We're not disposing of anything here.
The MBTA retains the right of way.
It disposes of a term-limited easement,
and that easement is expressly subordinated
as we note in our briefs, and it's in the appendix,
to the MBTA's right to operate mass transit.
If there's ever a situation in which
they would be inconsistent,
Eversource must buy the ordinance, sorry,
buy the option agreement, and then the easement yield.
That means they may have to remove the line
if they need to use it for mass transit.
MBTA is reign superior in this transaction
in every single one of the specific issues
that would be raised by the prior public use doctrine,
so yes, the MBTA can alienate its property.
It can acquire property, and it does so frequently
with the number of railroad lines.
This rail line is disused.
It was B&M's line, it was acquired in the 1970s,
so in that situation, yes, MBTA decided to acquire it,
bank it for future rail transit purposes
or other mass transit purposes.
The town says it must be rail,
but that's not inherently required.
The MBTA is the Massachusetts Bay Transportation Authority.
That includes buses, it includes bikes,
it includes a whole range of other public transit,
so to the notion that it must be a rail line,
and therefore a rail line would be inconsistent,
simply isn't the scope of what the MBTA acquired it for
on the face of the tape.
-: Okay, thank you. -: Thank you your honor.
Ralph: Mr. Lewin, we've not forgotten you.
-: Good morning still, may it please the court.
Joshua Lewin for Eversource Energy.
I'd like to address three issues.
Some of these have been touched on already,
so I might divert a little bit.
First is that the proposed use by Eversource
of this right of way for transmission line
is not a public use.
Secondly, I'd like to touch a little bit on the effects
that would result if this court extended the doctrine
to apply to a utility company's installation
of a transmission line,
and thirdly, I'd like to talk just briefly
about the first two elements of the doctrine
and why the town loses on those two elements.
-: Is it your assertion also that it's not a public use
because it is a private entity?
-: Absolutely.
-: A private entity cannot put something to a public use?
-: Correct, there's really two elements.
One, it's the user, and two, it's the nature of the use,
and the phrase public use has a very unique meaning
in the context of the prior public use doctrine.
Mr. Heuer referred to the Higginson case,
and I would suggest that the court look at that case.
The Higginson case talks about public uses being
where an agency of the government holds land
and administers that land as a trustee
for the public benefit, for the public at large,
not for any narrow, pecuniary purpose
or limited benefit of the agency or municipality at issue.
We're talking about things such as public parks.
That was really the manner in which the doctrine emerged.
Things like schools, highways, hospitals.
Those are the public uses to which
the doctrine has been applied, and the court's right.
In 200 years, it's never been applied
to a subsequent private use, and there's a reason for that
because outside of the park land context
which has now largely been supplanted by Article 97,
the doctrine has only been employed
where you have conflicting taking powers, right,
so you have two agencies, each of which have been charged
by the legislature or given authority to take property
for specific purposes, and in that context,
this court has said we are gonna leave it
to the legislature to determine which of the
competing public uses will prevail in that circumstance.
That is certainly not the case here.
Eversource is a paradigmatically private use.
It is a for-profit corporation.
The transmission line that will be installed
will be used to generate revenue,
and it's totally outside of the prior public use doctrine.
If this court were to apply
the prior public use doctrine to--
-: Well then we can't stop with the question
the Chief began with which is whether this is within
the MBTA's authority because I take it the first step
is transferring it to you is within their authority, right?
So it's a public use for them to give it to you
to use for a private use?
I'm just trying to get a sense of where
are you going for too much here.
-: Well I think any, as my brother indicated,
any one of the four elements.
-: I know, but we've for a motion to dismiss,
so I'm just trying to understand.
You say that your private use is a totally private use,
but you're fulfilling sort of a part of
the public mission of the MBTA,
so I get confused about why that's a totally private use.
-: Well I see where the court's going there,
and if I understand that what you're saying is.
-: Not sure I'm going anywhere,
but I'm just, I'm confused.
-: The MBTA's use in leasing it is the public use at issue,
and if you look at it in that light,
first of all, I would suggest that
under the case law I was just discussing,
even that wouldn't be considered a public use
because narrow, revenue-generating uses
aren't considered to be public uses
for purposes of the doctrine,
but even if you were to say that,
still the next element in the inquiry is
whether they have express legislative authorization
to do so, and under 161.a,
I suggest that they certainly do.
-: But do we stop there, you know?
This seems to be a morass once we get into this,
but do we stop with the MBTA can do this
under that statute, or do we have to then analyze
this larger question of whether the public use doctrine
can be applied to a private use down the road.
-: No, I would suggest there's no need to go that far.
Once they lose on any one of the elements, that's it,
and if there's express legislative authorization
under 161.a, I would suggest yes,
the court can stop right there.
That's the end of the inquiry.
Just briefly on the impacts
if the court were to extend this.
As the amicus brief of National Grid points out,
utility lines and utility companies rely on public land
to install and expand their systems.
This single transmission line is a good example.
It passes through a number of communities
and will pass over a number of public lands.
If this court were to extend the doctrine,
it would literally paralyze the utility company's
ability to expand and enhance their systems.
Every time they would seek to add a line on a street
or cross MBTA property or any other property given
by a town or municipality or government agency,
they would literally have to seek the legislature's
express authorization to do so.
It would be impossible to provide cost-effective
and reliable service under those circumstances.
-: Okay, thank you. -: Thank you.
(papers rustling)