-: SJC-13300, Smiley First, LLC.
v. Massachusetts Department of Transportation.
-: Okay, Attorney Feldman, whenever you're ready.
-: Thank you, good morning, may it please the court,
my name is Paul Feldman.
I represent the appellant Smiley First, LLC.
With me is my colleague Shawn McCormack, who's on the brief.
This case arises from what the government called
a Confirmatory Taking on January 12th of 2018,
in which the Commonwealth took rights
in appellant Smiley First's property
without compensation, in order to build some new tracks
and a building in connection with
the new Red Line subway cars
that MassDOT had acquired to test them.
The government takes the position
that it didn't have to pay compensation,
because there were really no new rights taken
because these rights were already acquired
by the Commonwealth in a Taking in October of 1991.
-: So let's just,
if the purpose of the Taking in 1991
is now what they say,
but the purpose was to create a haul road,
and to relocate Conrail.
Do you lose anyway,
because the subway trains being tested
is a public use in kind?
-: Yeah, absolutely not.
We're not, our case is not based on the fact that,
and this is where the trial court, we think made error.
Our case is not based on the fact
that somehow we're trying to say that
the act of testing Red Line tracks
isn't a railroad type use.
Where the court went wrong below,
is that there were no easement rights
available in the physical portion of the property
where this new track and this building has been built.
The rights under the 1991 easement
had already been extinguished
for further physical improvements
on the fee owner's property.
Judge: How did that happen?
-: It happened because that's how the language
of the October 1991 Taking speaks.
It says, number one, we are,
as Justice Lowy just said,
the purpose is we're building a haul road.
Conrail is in the way,
so we're taking some of their property,
and to mitigate the damages we owe Conrail,
we're gonna let Conrail relocate their facilities
onto our client's predecessor's property.
But it went on to say, here's the property,
here's the portion of our property
you can establish your easements in.
Defined the parcel.
It didn't define the particular easements
that Conrail is going to establish.
That gets defined by the act of relocation.
Judge: Is that the practical location?
-: Well, it's a combination of practical location,
but also, which has been in our jurisprudence for 200 years.
But it's also the structure,
and the language of the Taking order itself.
-: Tell me this, if you could.
How do the air rights, 12 years above 20
help your argument that you just made?
-: Understand the question.
It's absolutely critical to understanding
what the Taking in October of 1991 is all about.
Conrail doesn't know exactly
where it's gonna relocate its facilities.
It says, the government says to Conrail,
you can relocate on this parcel.
What is now 12,000 square feet.
There's an opportunity to relocate.
That's the purpose.
That is a finite process.
In 12 years, once they're during that 12 year period,
Conrail can physically do what they need to do
on my client's property, including all of the air rights,
the fee owner's rights for 12 years are suspended,
but after 12 years,
all of the air rights that the fee owner enjoys
is available to the fee owner.
So, and except for those air rights that are now,
continue to be the subject of the easement,
which is the 20 feet above where they located the rails.
There has to be a moment in time
where we know, where we could define our residual rights.
We now then know what we could do with our property.
Those residual rights, those air rights
are incredibly valuable.
Judge: Because it encompasses the entire parcel
other than the 20 feet above.
-: But that is the incorrect reading
of how the air rights work.
That would actually expand,
or look at the 1991 order in an expansive way,
when this court instructs under General Hospital,
you do the exact opposite.
For 12 years, the Commonwealth got to use the air rights,
all the air rights.
After 12 years, every bit of those air rights
are now my client's, they're the fee owner's.
And I'm not just talking about the air rights
from 20 feet up.
I'm talking about the air rights from the ground up,
where we don't have tracks.
Where we have tracks, yes, the easement continues.
-: That portion other than that is taken up
by the Conrail line.
-: Other than what was taken up by the Conrail?
We enjoy all of those air rights.
That don't start, there's not a magical line
hanging over this property at 20 feet.
It's the reverse, Conrail, or in this case now MassDOT,
they have that rail line,
they have those rights above that rail line in perpetuity.
They wanted to use that line
to test their Red Line tracks.
No problem.
We are not objecting to that.
And that's what the trial court missed.
That's what the Commonwealth misses.
That's why Leroy has nothing to do with this case,
yet it was so heavily relied upon,
in judge court, in the trial court's opinion, determinative.
It really isn't even relevant.
The importance of the air rights
is we have those valuable rights,
which we would be deprived of using.
They would become completely elusory,
if Conrail, or now MassDOT,
could keep on coming back to this same parcel,
oh, we want to add another line,
and we want to now add another line,
and we now want to add a third line,
and keep on carving out air rights.
How do I use my air rights subsequently?
That's what the 12 years is all about.
And one of the point,
because we're looking at an easement
to build the haul road, what's construed in its entirety.
That 12 year period is not just associated
with our air rights.
That 12 year period is the same period
that this same Taking order uses
when it takes temporary construction easements
to build the haul road.
So what the Commonwealth was saying is
we need to build this haul road,
Conrail, you need to relocate your facilities.
We're gonna be Taking temporary construction easements
to build our haul road.
They're gonna last for 12 years.
You're gonna have the full use of air rights,
which is an example,
like a temporary construction easement
in the context of trying to hoist rails.
If you think about it saying,
and you are also gonna have 12 years,
you're gonna have the same 12 years
that we have to build the haul road,
you have to relocate your facilities.
Judge: Wait, wait.
-: And when that is done, your easements,
the easements that you now will enjoy in perpetuity,
they're defined.
We know where they are, and we know the vertical limit.
And those are the easements.
Not this notion that you still magically
have rights over the balance of the fee owner's property.
If in fact, that's what this Taking order says,
that's the Taking of a fee,
and we know they didn't take a fee.
They specifically said they were Taking an easement.
-: Well let's go back to the first issue
that we have to address,
which is the purpose of the 1991 Taking,
and in the context of an eminent domain Taking.
Why aren't the appellees right that the purpose is,
that it's for any railroad purpose?
For Conrail, for any railroad purpose.
-: Two answers.
First answer is that's not what the Taking says.
The words couldn't be clearer.
And it's not only said once, it said multiple times.
Right in the beginning of the Taking order, it says,
for the convenience and necessity of the Commonwealth,
we're gonna lay out and take charge of a road,
and that certain railroad facilities be relocated.
That's how it starts.
That's what this Taking is about.
We're laying out a road,
and you have to relocate some railroad facilities.
Then you go 24 pages later,
and it specifically says in connection,
now in connection with the laying out of the state highway,
which we just explained to you,
it is necessary to relocate portions
of railroad rights of way,
and land is hereby acquired for said relocation.
The purpose is so Conrail,
you could move some of your assets onto this property
that you deem you need to move.
We know you haven't figured that out yet in 1991,
so here's the parcel in which you can move your assets.
When you move your assets, boom,
your rights will be those undefined,
that undefined easement rights
will now be located and defined
as contemplated by the language of the order,
which says, we now know the vertical limit.
And by the way, when you move those assets,
you can only use those assets for railroad purposes.
-: What's the impact of the fact
that this is but a fraction of the numerous parcels
that were taken to build the haul road?
How does that play into the analysis
of the scope of these orders?
-: I think the impact of that
is this Taking order is meticulously prepared.
It is thoughtfully prepared
for the purpose for which the Taking was made.
And that was, the government in 1991,
as part of the Big Dig project,
needed this haul road.
And that's what the purpose of this Taking was for.
And yes, it had an obligation to,
and wanted to mitigate the damages
it was causing Conrail,
because it was Taking property from Conrail by fee,
but only then giving them easement rights.
It wasn't putting Conrail in an equal position.
-: Why, why not?
It was basically saying, okay,
we're taking this from Conrail.
Conrail operates a railway there.
You get to move your railway operations over here.
-: And and the difference is why is it not equal,
is because if they had given Conrail the fee,
Conrail can move its operations there,
it could then change where the tracks
that they originally moved, would be moved.
It could add tracks, it could do whatever they want.
They owned the property.
-: They could do whatever they want for railway facilities.
They didn't have to recreate the exact,
Conrail owned that property before.
They could do whatever they wanted
on that property before, right?
Paul: The property that was taken of Conrail's?
-: Yes. -: Yes.
-: You're trying to put them
in as best, as equal a position as possible.
You don't want them to put a hazardous waste site there.
You don't want them to do certain other things,
but they can create a railway,
and move their railway operations.
-: Yes, I would say two things.
Judge: And buildings too, right?
-: I would say two things.
I would say that I know that you feel like
they were trying to put Conrail
in as equal position as possible.
If that's what they were really trying to do,
they knew how to do that.
Just take a fee in my client's property,
don't take the easement.
-: Having dealt with the D,
they wanted to save themselves
as much money as possible too.
Paul: Correct, and by saving-
-: That's what was really driving this.
They couldn't care less about Conrail,
they didn't want to cost the Commonwealth
more money than is necessary.
-: Exactly, and at the same time,
they didn't wanna have to pay Conrail more money,
which is why they mitigated the damages
by coming to my client's property.
They wanted my clients to be left with some real rights
to use its property afterwards,
'cause they didn't wanna pay my client more money.
Judge: Right, that's exactly-
-: And so they carefully-
-: But they paid your client some money,
and they paid Conrail some money,
and we're sort of balancing all of these things.
-: Right, but they paid Conrail less money
for taking their fee and they would've,
because they then gave Conrail an easement,
and they paid my client less money than would've,
if than taking a fee. -: Right.
-: Well there's a consequence
when the government is figuring out exactly-
-: Right, but we're trying to figure out
what they left for your client,
and I think Justice Lowy's question about air rights
is probably the strongest part of what you have,
because I don't read the any railway the way you do,
I read it as they can move railway operations over there.
-: And we agree with that.
They could move any railway operation,
and I'll go one further.
Judge: And facilities.
-: I will agree with the court
that for the first 12 years they could have moved,
put on multiple tracks in that time period.
They were free to use that property
to relocate their facility,
however they chose, wherever they wanted to,
and they could have occupied much more,
but once they finished their relocation,
which needed to be done in 12 years,
the actual, the definition
and limits of the easement had become established.
And that's their perpetual easement rights
that they enjoy in perpetuity.
Now the MBTA-
-: And I'm sorry and you're getting that
because of the air rights limitation,
cause it, you know, the words that you wrote
read before that the easement is to relocate and relocation.
None of that says within the first 12 years.
-: That'S all, that is all happening,
that's all happening within 12 years.
-: Where does it say that, 12 years?
Other than the air rights section.
-: Well, because if you don't complete that process
within 12 years,
the residual rights of the fee owner arise,
and you're not gonna be able to physically
come on with the crane, or hoist,
you have to be able to physically do it.
-: No, but looking at the language of the Taking,
where is the 12 years, other than in the air rights?
-: It's only in the air rights, and that-
-: That's why that's the critical part
of your argument because...
-: A hundred, absolutely, it informs the court
as to the structure of this Taking.
And another important thing to realize is that
now MassDOT comes back 27 years later,
and says, well, we have another project,
and it's a railroad project,
but that new project is now,
we wanna do that new project on land.
That is, they don't have an easement in,
because the easement was established by the relocation.
-: Can I ask one other question?
So in the 20 feet above, does that stay with forever?
I can't remember, there's part of-
Paul: Yes.
-: See, I take it your sister's gonna stand up and argue
they were given the right to create,
to move their railroad and facilities,
and above those facilities for 20 feet,
they can move it around wherever they want, I think,
I assume that's what she's gonna say.
-: Well, if that's what she's gonna say,
we know then she's reading the words, first of all,
not literally the way they're written on the page,
and she's reading the words
against the way this court instructs us to read them,
as we learn from General Hospital.
-: Well, the problem we've got is
the General Hospital and subsequent decision,
are sort of inconsistent with each other.
That's why we took, one of the reasons we took the case,
is we seem to be having
two different lines of analysis out there, right?
Do you want to address that before you sit down?
-: Thank you very much.
I would really like to address that,
because if you heard
the debates we've been having in my office
for the last two weeks,
we've been talking about
did General Hospital overrule the appeals court in MUGAR?
Is General Hospital inconsistent with MUGAR?
How do we-
-: Oh, and also, there's the later decision
by Justice Langevin, a footnote that cites MUGAR
for the point that is inconsistent
with General Hospital, right?
-: Which is also the 2016 case.
Yes, Your Honor.
And we've been, and I said to myself,
well I could do two things in front of the court today.
I could either say, look,
General Hospital did overrule MUGAR,
but now that's in doubt because of the footnote.
Or I could say, no,
there is a way to reconcile these decisions
so that they make sense.
Judge: That would be very helpful.
-: All right, so here's the way-
Judge: Yeah, let's go with path two!
-: All right, so I'm gonna go path two.
I'm gonna try to help the court reconcile.
You have to read MUGAR in the following two ways.
Number one, MUGAR was not interpreting
the scope of an easement.
It's not what that case is about.
That case is about how much Taking damages the T had to pay.
And the T argued,
well we shouldn't have to pay so much Taking damages
because we're not going to use everything that we took.
We know now, we're not gonna use everything that we took.
And you know, there's this practical location doctrine
that if I only practically use less than my rights,
and that established the limits of my easement,
don't charge me for the fact that I'm using less.
And what MUGAR said was,
wait a minute, it doesn't work that way.
You are the sovereign.
You wrote your Taking order.
You could have wrote it any way you wanted.
You gotta live with what you wrote,
because your rights vested on the moment
that Taking order hit the registry of dates.
At that moment is when you owe your Taking damages,
and at that moment there was no constraints
about what you could have done with the property
that you took in MUGAR.
You paid for the entire property,
even though you are only gonna use one strip for access.
If that's what you wanted to pay for,
that's what you should have taken,
and that's the context of MUGAR.
It's actually the MBTA arguing
practical location should be available to me,
so I don't have to pay damages.
Now the MBTA is trying to say,
well, because MUGAR says
practical location is not available,
we should toss the doctrine
that's been in our jurisprudence for 200 years
that helps people establish easement rights.
Why, because you know,
this is an eminent domain case and it doesn't apply.
That logic is the opposite.
It's completely perverse,
and I'll explain that as my last point.
If this was a voluntary easement
between two consenting parties,
practical location doctrine would be available
to define what those parties did,
when they didn't define it
in the language of their agreement,
with certain metes and bounds.
Here we are in an eminent domain Taking case,
where we are talking about the power of the sovereign
to take someone's private property.
It was what our founders wanted to guard against
when it said, you know,
we'll let you wield that extraordinary power,
but we're gonna put a check on it.
You gotta pay, you gotta pay just compensation
if you're gonna wield that power.
And the courts go on to say,
and since you could do whatever you want,
we're gonna strictly construe,
and we're gonna keep you to what you say.
We're gonna keep you to the words you use
in the Taking order,
and we're gonna keep you to the words of what you,
and we're gonna keep you to what you do.
Conrail practically located in a certain place,
and that freed up the balance of my client's property,
do with it as my client had a right to do.
Now what the Commonwealth is saying is,
well don't apply that rule that you would apply
in a voluntary transaction to the government.
It's just the opposites,
that we're trying to restrain
the government from unfairly taking property rights
and not paying for 'em.
And that's all the T wanted to do in this case.
And we asked this court
that the lower court should be overturned,
and my client be given an opportunity
to present the fair, be paid for the fair value
of what was taken from them.
Thank you.
-: Okay, thank you.
Attorney Kinscherf.
-: Thank you, may it please the court.
My name is Kendra Kinscherf,
Assistant Attorney General
representing the Massachusetts Department of Transportation.
This case is all about the 1991 Order of Taking,
and the Commonwealth very clearly in that Order of Taking
took a 26,240 square foot parcel,
which is now the 12,510 square feet at issue in this case,
owned by Smiley.
The Order of Taking,
as we've already discussed, my brother discussed,
was for the purpose of constructing the haul road,
as well as relocating railroad rights of way and facilities,
not just the rights of way,
and that it shall be used for railroad purposes only.
The owner of the property at the time
was compensated for the entirety of that easement taken,
and 31 years later-
-: Yeah, but the air, so what does it mean
when the air rights come back to him,
the Smileys, 12 years later?
'Cause that, if you can keep changing your mind,
and moving, putting buildings wherever you want, forever,
they can't exercise any air rights, right?
So there's gotta be some limitation there, isn't there?
-: There is, the first problem, however,
is that Smiley leaves out significant portions
of the air right provision.
Of the air right provision.
-: Go ahead, 'cause I'd really like to understand
how the air rights provision interacts with the rest of it.
-: Yes, absolutely.
The air rights provision starts out by stating
said railroad easements, again,
defining the easements as for railroads,
is limited in vertical dimension.
That is nothing to do with the horizontal dimensions,
which are defined elsewhere.
This is a limited vertical dimension
of the 20 feet, six inches.
That height of the easement
that is being taken by the Commonwealth is defined.
It's a starting point.
The railroad lays down its tracks,
and at that time, you now understand how to measure
that 20 feet, six inches.
But it's across the entirety of the easement parcel.
-: But what does that leave you?
If you can put things,
'cause you need to have something to build on, right?
You don't have a, they can't,
they can't defy the laws of gravity,
and build a building 20 feet in the air
that doesn't have any foundations, right?
-: Correct.
And then it goes on to state,
and this part is also omitted,
is that the use, Smiley's use of the land
is significantly limited as you just acknowledged.
And that is he, Smiley must first obtain
the consent of the easement holder.
That is the Commonwealth, MassDOT.
It is also CSX,
who continues to hold easement rights
in this parcel as well.
And then, even with that permission,
that can only be used as reasonably may be required,
for access to, and to support the uses of the air rights.
So Smiley has to come to MassDOT with a plan,
saying I'm gonna develop my air rights,
I need to use this portion of the land
in order to be able to access that development.
Is that permissible, MassDOT?
MassDOT says yes,
they place the stairwell in a certain location,
in order to access its development
over the 20 feet, six inches.
-: I take it there's some, but again,
so, does that mean you can,
as long as you're using this for railway purposes,
you can use the entire parcel,
and prevent Smiley from building anywhere on that parcel?
You know, 'cause you may need it sometime?
What is the 12 years?
What purpose is the 12 year expiration period?
-: The 12 years was only related to MassDOT.
The Commonwealth's ability to use Smiley's air rights.
Judge: Right, but so...
-: The 12 years expires MassDOT's ability to use
over that 20 feet, six inches,
but below that 20 feet, six inches,
the Commonwealth has the ability to use the entire easement.
-: He argues that that was meant for you to,
you know, basically put up or shut up,
that you had to build or move your rail.
You had to put your lines in,
you had to put your facilities in
so that then the Smileys could exercise their air rights.
That's why there's a 12 year provision.
But you can't just prevent him forever
from using his air rights.
'Cause after 12 years, he has air rights,
and he's gonna, he argues, and I don't know if he's right,
that it covers the whole property
where you haven't built anything within 12 years.
You're arguing you got nothing that we don't give you,
because we can always put a building there,
or put a track there, as long as it's for railway purposes.
Right, is that your position?
-: That's precisely what the Order of Taking states.
-: So what did he get in terms of air rights?
-: He has the ability to develop the air rights
and that which is necessary to access those air rights.
And again-
-: But you may need a new test track somewhere else,
and you don't have to give it to 'em, right?
You basically say we totally control this property
and we don't have to give you anything.
-: The easement doesn't cover the entire property
that Smiley owns.
The 12,510 square foot parcel
that is encumbered by the easement
is a portion of the property.
-: Right, but as far as that burdened land,
your position is that MassDOT gets to do, move its rails,
build its buildings wherever it wants to
on that burdened land.
-: It's exactly what the Order of Taking permits it to do.
-: And so given that position,
how do the air rights provisions make sense?
-: The air rights provision makes sense,
is because Smiley can come to them.
They have an actual plan of the development rights
to the extent that they need to place a structure
on the property,
they ask for permission to do so,
and that's to ensure that there is not going to be
an unsafe interaction between an operating railroad
and a residential-
Judge: High on the property though.
When you say on the property, you mean on the 12,000 plus?
-: Correct.
But they have full ability to use
the remainder of their property that is not encumbered.
There are numerous developments in South Boston
where you have cantilever developments.
-: Counsel. -: To which, go ahead.
-: I'm sorry, could I just, because I'm still stuck with,
I don't know if you answered Justice Kafker's point.
If you're talking about the burdened land,
you're giving us a conceptual,
hey the Smileys can come with a plan,
and say here's how we propose to develop this.
When we know in practical matters,
in practical, in this world,
they're never going to say okay, right?
They're always gonna be, because way back when in 1991,
you didn't contemplate a test track.
So that's now what you're relying on to say,
we didn't think about it, but we,
it reserves to us this railroad
general kind of activity that we can always then default to.
So why would the T come back and say,
we know we've got this burdened land,
we know you got these air rights,
but we're gonna somehow hamstring ourselves in the future
by saying, okay, go forward with your plan.
That's never going to happen, right?
-: It has happened.
This is well beyond the record, Your Honor.
-: I don't even wanna go beyond the record.
I want to go to the burdened land that you gave to us,
that the Smileys could come to you, or come and say,
please, here's our plan to develop these air rights,
and somehow, in some way in this world,
they would say that makes sense, go ahead.
-: Yes, there are the options and the ability
to have this coexist.
They need to come with a plan.
They have never, again, in those 30 years,
come with a plan and asked for such permission.
And as a result, MassDOT can use the easement rights
that the Order of Taking granted it,
and the Order of Taking is very clear.
It has in numerous provisions,
throughout the document itself,
identifies with very specific dimensions,
metes and bounds descriptions
that the easement is the entire easement parcel
at dispute here.
It's located-
-: So you wouldn't say that in practical measure,
you've taken the fee?
-: No, because they still have, as they noted,
valuable air rights.
But as the attorney Jeff Mullen,
who was the person who negotiated this entire process,
the owner at the time was compensated
understanding that their property rights
were significantly diminished.
So while they no longer have
the ability to use the land itself,
they still are able to use the air rights.
That's the basis of the-
-: And what's the value of that,
if you have a complete veto over them using the air rights?
Kendra: I'm sorry, I did not hear you.
-: What's the value of those air rights,
if over the entire 12,000 plus square feet,
you could veto anything they wanted to do
that required use of the air rights?
-: It states in the Order of Taking
that the Smiley has the ability to use the land
as reasonably required to access the air rights.
That was what was used as part of the determination
of what was being taken from Smiley.
-: So the 12,000,
'cause I have the same question Justice Lowy has.
The 12,000, forget about the other,
so it's 26,000, 12,000.
What is the difference between you having
basically fee simple rights on the 12,000,
versus what you say you have?
-: The difference is the air rights and as-
-: The air rights are totally subject to your control, right?
What is the limitation on your veto power
in Justice Lowy's terms?
-: Reasonableness,
there is always a reasonableness standard
when interpreting that, you have to,
you can't just unilaterally veto it,
just because you don't-
-: You can't say as follows,
because we have the right to create reasonable,
we have the right to move facilities
and do anything for rail.
You say you have the right on that 12,000
to do anything you want for reasonable railway purposes.
Right, right? -: Yes.
-: So is there any time where, if you want to,
are you saying it's reasonable for you to reserve
those 12,000 feet forever for potential railway purposes,
and therefore they can't build
on the air rights on that 12,000 feet?
Or is that unreasonable for you to reach that conclusion?
-: Well, I disagree with the connection there.
We have an easement on 12,510 square feet.
-: And I'm trying to understand how that's not
basically fee simple because
you have the right to use that property
for railway purposes, right?
Kendra: Correct.
-: And you say that right goes on forever.
Kendra: It does.
-: So totally apart from the airway rights.
Kendra: Correct.
-: The air right is not in any way limited.
It's not as he argues,
he argues you had to pick what you wanted within 12 years.
You go, no, that's not it.
We have reserved the right for whatever we want
until doomsday, to use this for railway purposes.
Kendra: Correct.
-: And you're saying no,
there's a restriction for reasonable,
but as far as I can tell,
the only restriction is for railway purposes.
-: The restriction on our use is railroad purposes.
Judge: Right.
-: Smiley can access its air rights,
and if that access is not going to interfere
as your court's hundreds of years of case law indicates,
if my easement rights, or if Smiley's use of the air rights
are not going to interfere with my easement rights,
then that can be permitted.
-: But so give give me an example
of something how he can use,
how they could use their air rights,
consistent with your reservation of a right
to put anything you want for railway purposes there.
Give me one, just one.
-: Yes, so as I stated, this is an 18,000 square foot parcel.
They can create the base of the development
on the portion that is not encumbered,
cantilever it over the 12,000 square feet,
and to the extent that they need to access that area
that is being cantilevered over the 12,000 square feet
for maintenance or to, for example,
for maintenance of the underlying underside
of the cantilevered portion of it,
then MassDOT would be able,
would be able to allow access in order to do that
-: It wouldn't be required to.
It could, in its discretion if it felt like-
-: It wasn't going to interfere
with the railroad uses, correct.
-: Right, but those railroad uses
include buildings for you, right?
You could build a manufacturing plant
to build railway cars, right?
You could have a storage facility for railway cars.
Right?
-: Yes, a storage facility that is used
for the railroad itself is permitted under the easement.
-: But even more practically,
I guess I'm going back to the question I asked you before.
With them never, ever being able
to truly look into a crystal ball
and see what the potential railroad uses
might be in the future,
they're never going to say yes to that.
They're never going to say yes to that.
-: I think that it's contemplated that,
for the example that I have given you
is certainly what is contemplated at the ability now.
And I would like to remind you
that this was a significantly larger parcel.
Their ability to use their parcel
was mostly impacted by the City of Boston's Taking
for the Convention Center, and not ours.
Judge: Can I ask one other question, Chief?
-: So if we're done with air rights. (laughs)
So this was not a Taking in fee simple, right?
It was a Taking as necessary to relocate portions
of the railroad rights of way of Conrail at the time,
and the relocation of Conrail facilities.
How do you square that with your position now
that this is essentially a fee simple in the burdened land
for limited purposes, for railway only purposes,
but anywhere we want on this burdened land?
But when the actual Taking is necessary
to relocate portions of the railroad right of way.
-: This was in, because Conrail,
a railroad company was being displaced.
-: Now I don't, yeah, so I understand the historic context.
I'm trying to go back to the actual Taking,
which says it's a Taking that is necessary
to relocate portions of the railroad rights.
-: Correct.
But it's rights of way and facilities,
and then to use it for railroad purposes.
-: To relocate those things.
-: But if it was to just pick things up and put them down,
Conrail wouldn't be able to use its railroad tracks.
A railroad track requires much more land
than the track itself.
And that's even under federal law, there are clearance.
-: It doesn't talk about,
I'm not limiting them to the tracks.
I'm trying to get back to the language of the Taking,
which is to relocate portions of the railroad rights of way,
not the tracks.
I mean the rail rights of way would be bigger
than just the track.
So that argument is sort of a red herring.
I'm trying to focus you on the language of the Taking,
which wasn't we're Taking in fee simple.
-: Correct. -: The burdened land.
It is Taking for the purposes of relocating
these rights of way and facilities.
-: Correct, for an easement, railroad easement.
-: For the relocation, not the relocate here year one,
and year two, and year three,
and what your opposing council is saying,
yeah, you can do that.
But you got 12 years,
because otherwise the air rights don't make sense.
-: But that's not what the Order of Taking states.
And it talks, when we're talking about the geographic scope,
and I think that's what you're getting to here,
is that the dimensions of the parcel,
the easement being taken, easement in the Order of Taking
is identified as parcel 60-E-RR-1,
and that is defined in several sections
of the Order of Taking.
At record Appendix 46,
it states that the easement is shown on the plan
hereafter referred to, at 48-
-: But yeah, no, I understand it defines the burdened land,
but it defines the easement for the purposes of relocation,
and I think it would be great
if you could answer that question.
How do we square for the purposes of the relocation
of the facilities and the rights of way of Conrail
with your position that effectively,
this is a fee simple in the burdened land,
limited only by section, you know, sub-I.
-: In order for Conrail
to have been able to use that relocated operations,
it was being given the entire easement parcel.
It's an easement, it's not a fee simple,
but it is being, it's picking up railroad operations
so that they can be placed in a different location,
so that haul road-
-: Right, but I think Justice Wendlandt's saying
this is a new railway, this isn't part of the relocation,
this is a brand new railway use
that wasn't projected at the time.
It's something totally new.
It's not relocating Conrail,
it's a brand new railway activity,
that has nothing to do with the relocation of Conrail.
It's basically the DOT's vision for the future.
-: And the Order of Taking contemplated
that there would be different uses in the future.
So for example-
-: Where does it say that, that would be very useful,
if there's something in the Taking that points us to that.
-: For example, on record appendix,
I think it's 47 to 48,
it talks about successors to Conrail,
and it talks about a successor can use the easement parcels
not only for the freight use that Conrail was using it for,
but it could be for passenger use,
and passenger use is a different type of railroad use
than what was contemplated by Conrail,
and could potentially need the easement parcel
in different ways.
This court's case law on railroad easements,
for hundreds of years, have always stated
that the initial use of an easement is not set in stone,
and that the easement holder
can use it for different purposes,
so long as it's within the layout of the railroad itself.
Here, MassDOT's railroad purpose
of Red Line test track project
is squarely within the easement parcel itself,
that is defined by the metes and bounds on that layout plan.
And it is undisputed by the parties
that it is a railroad use.
-: Okay, so you're just saying
that this is a great way
for the Department of Transportation
to get what they need in a cheaper way.
They don't have to do it by way of purchasing the land.
They can just take it and say it's an easement,
but then use all whatever part of that area they want to.
-: Railroad easements are just that,
and they have been for hundreds of years.
-: So once you put down the tracks, it doesn't matter.
You can pick them up and move them
to other parts of the place, so that whoever owns it can,
how are they ever gonna use their land?
-: That has been the law of this state
as set by this court for hundreds of years, yes.
-: But you're talking, when you talk about Leroy,
and you talk about, that's really a use in kind case.
It's not really a case about
the initial purpose of the Taking.
-: I think all of the railroad cases,
and all of the eminent domain case law
is very clear that so long as you are within
the easement area that was taken,
and so long as you are within the easement purposes here.
Judge: Right, within the purposes.
-: The railroad uses
for railroad rights of way and facilities.
Here, the Red Line Test Track Project
is a right of way and related facilities.
-: But it has nothing to do
with the relocation of Conrail's
rights of way and facilities, right?
-: It was never contemplated that it was just,
I'm going to pick things up and I'm going to put them down.
It was Conrail was going to continue its operations.
Those operations, as cases discuss, are not set in stone.
And even though it's just a railroad easement,
the owner is compensated for the extensive Taking,
it's understood that it is,
its uses are significantly curtailed
by the Order of Taking
and it was compensated for that properly in 1991.
-: Do you have any cases that'll show what that means?
The significant Taking, I get it.
So the owner, the original owner understands
that Conrail is gonna move their things here,
and here they are,
and anybody else can do the same for railroad purposes.
Do you have a case that says that things can be put
anywhere on that property,
or facts, where things have been moved
to different places within that property,
and that was the proper use of the easement?
-: Yes, Your Honor.
And that was actually in a couple of cases.
So first-
-: I'm way over time, and I think people are tired,
but if you can just gimme the cases.
-: Sure, in Leroy itself,
it indicates that, that was a case in which
there was a narrow gauge railway,
it extended to a double track electric trolley line,
and then it was further extended
so that it could be used for motor buses.
-: Is it that a public use in kind case,
as opposed to the limits of an easement
going back to its initial purpose?
-: No, because it did indicate in there
that it is related to the original purpose,
and the court stated that,
that was true even though the new modes
traversed over any suitable part of the location.
And it's not that you fix a path based upon
the original setting down of that single gauge railway.
It was, the courts determined
that the use was still consistent with the original Taking,
and that is exactly what we have here.
We have a railroad use
that is within the original easement area taken,
and so we are not going beyond
the scope of the original easement itself.
It is not only consistent with a purpose,
it is consistent in kind,
and it is consistent with the rights
that the original property owner were compensated for.
Judge: Okay, thank you very much.
-: And I was just referring the court
to the other cases that I cited in my brief,
and asked the court to affirm
the decision below in its entirety.
Thank you so much for your time.