December 12, 2014
1148 Davol Street LLC
Mechanic's Mill One LLC
Argued: September 4, 2014.
Civil action commenced in the Superior Court Department on April 8, 2008.
The case was heard by René e P. Dupuis, J.
Arthur D. Frank, Jr., for the defendant.
John M. Sahady for the plaintiff.
Present: Cohen, Meade, & Milkey, JJ.
[21 N.E.3d 548] Milkey, J.
At issue in this appeal is the ownership of a strip of land in Fall River. The defendant was the record owner of the disputed property, which the plaintiff claimed based on adverse possession. The parties agree that the nature and length of the plaintiff's use of the land generally was sufficient to establish title by adverse possession. The only contested issue is one of law: whether the plaintiff may count the time during which title to the land was held by one of the defendant's predecessors-in-title, the city of Fall River (city), toward the requisite twenty-year period
of continuous adverse use. Relying on G. L. c. 260, § 31, the defendant argues that the plaintiff's adverse possession claim did not begin to run until the city transferred the property to a private party. In a thoughtful decision issued after a trial on stipulated facts, a Superior Court judge rejected this argument as a matter of law. She ruled that a private record owner of once-public land opposing an adverse possession claim cannot invoke G. L. c. 260, § 31, as a defense. We agree and therefore affirm.
By 1975, the city of Fall River had acquired a parcel of land located at 1082 Davol Street in Fall River (Mechanic's Mill parcel). The property included " a large building [that] had been used for manufacturing purposes." The record does not reveal what actual use the city itself made of the parcel, but the parties stipulated that the city " held" the property " for a public purpose as defined in Chapter 260, Section 31 of the General Laws." In 1989, the city sold the Mechanic's Mill parcel to a private corporation. Since then, the property has continued in private ownership, and it is now owned by defendant Mechanic's Mill One LLC (record owner).
In 1975, Paul and Albert Berube acquired the property at 1148 Davol Street, which lies adjacent to the Mechanic's Mill parcel. After purchasing that property, the Berubes began to use as their own a strip of the Mechanic's Mill parcel -- totaling approximately 25,000 square feet in size -- that lies along the boundary of the two properties. The parties stipulated that the Berubes and their successors-in-title " exercised undisturbed dominion over the [disputed strip] which was actual, open, notorious, and adverse to the claims of all others, and [that it] continued for thirty-two (32) years, namely from 1975 to 2007." After plaintiff 1148 Davol Street LLC acquired the Berubes' parcel in 2007, a dispute over the ownership of the strip ensued. This action followed in 2008.
" A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of at least twenty years." Totman v. Malloy, 431 Mass. 143, 145, 725 N.E.2d 1045 (2000). As noted, the only issue in dispute is whether the plaintiff can count toward that twenty-
year period the time that title to the Mechanic's Mill parcel was held by the city. If the adverse possession " clock" did not start until the city transferred the property to a private party in 1989, then it is undisputed that the twenty-year period had not fully run when this action was filed. Therefore, as the parties agree, the [21 N.E.3d 549] resolution of the legal issue before us is dispositive of the dispute.
To support its argument, the record owner seeks to invoke G. L. c. 260, § 31. That section is a statute of limitations that governs " action[s] for the recovery of land ... commenced by or in behalf of the commonwealth."  As the plaintiff points out, the current action between two private parties indisputably is not an action " commenced by or in behalf of the commonwealth." The statute therefore has no direct application here. Viewed in its best light, the record owner's argument rests not on § 31's direct application, but on the statute's potential interaction with background common-law principles. In order to evaluate the validity of such arguments, we need to examine § 31 in historical context.
a. The common law rule.
At common law one could not claim prescriptive rights against the sovereign. Attorney Gen. v. Revere Copper Co., 152 Mass. 444, 449-450, 25 N.E. 605 (1890). This principle was embodied in the maxim " nullum tempus occurrit regi." Id. at 449. The United States Supreme Court once observed that this " ancient rule of the common law, that time does not run against the State ... has been settled for centuries, and is supported by all courts in all civilized countries." Armstrong v. Morrill, 81 U.S. (14 Wall.) 120, 145, 20 L.Ed. 765 (1872) ( Armstrong ). This axiom raised the question of what rules should apply where the land that is the subject of an adverse possession claim is private land that was formerly held by a State,
and where the adverse use bridged the change in ownership. Under the common law, the party claiming adverse possession could not count toward the applicable limitations period the time he adversely occupied the land while title was held by the State. Id. at 144, 145, citing United States v. Hoar, 26 F.Cas. 329, F.Cas. No. 15373 (C.C.D. Mass. 1821) (No. 15,373). Lindsey v. Lessee of Miller, 31 U.S. (6 Pet.) 666, 673, 8 L.Ed. 538 (1832). Instead, adverse possession began to run only when the land was transferred into private hands. See id. at 146.
[21 N.E.3d 550] b. The 1835 statute.
In Massachusetts, the common-law principle that one cannot obtain title to public lands by adverse possession was superseded by statute enacted in 1835. Attorney Gen. v. Revere Copper Co., 152 Mass. at 450 (citing R.S. c. 119, § 12). Under that enactment, the Commonwealth was held to the same limitations period that applied to real estate recovery actions brought by private parties. As a result, " a title by disseisin [could] be acquired against the Commonwealth as readily as against a private person." Ibid. Even though the statute did not include an express reference to the Commonwealth's " subdivisions" until 1987, it has long been interpreted as applying to cities and towns in addition to the Commonwealth. Inhabitants of Cohasset v. Moors, 204 Mass. 173, 178, 90 N.E. 978 (1910).
At least on its face, the 1835 statute applied to all Commonwealth lands without exception. However, the statute underwent modest modifications in 1852, 1854, and 1867, all of which exempted certain limited categories of property from the statute's reach.
With that statutory framework in place, the Supreme Judicial Court eventually had occasion to consider whether a tax taking interrupted a third party's otherwise continuous adverse use. Harrison v. Dolan, 172 Mass. 395, 52 N.E. 513 (1899) ( Harrison ). Because Massachusetts generally had abrogated the axiom that time cannot run against the sovereign, the court declined to adhere to the common-law counting rules recognized in Armstrong, 81 U.S. at 145, and similar cases, at least in the context in which the case was presented. In Harrison, authored by Justice Holmes, the court reasoned that " such cases have no application to this case, if for no other reason, because the statute runs against the Commonwealth as well as against private persons."  Thus, the court held that the tax taking by itself did not interrupt the continuity of the adverse use.
c. The 1987 amendment.
Subject to the minor amendments mentioned above, the 1835 statute eventually was recodified [21 N.E.3d 551] as G. L. c. 260, § 31, and it lay unmodified until 1987. As the record owner accurately highlights, the 1987 amendment was significant. See St. 1987, c. 564, § 54 (inserting the language in G. L. c. 260, § 31, highlighted in note 3, supra ). Specifically, while keeping intact the then-existing statutory language, the Legislature added a general proviso that greatly expanded the categories of public property not subject to any limitations period in land recovery actions brought by the Commonwealth or its subdivisions. That proviso applies not only to land put to various enumerated environmental
and recreational uses, but also more generally to land held for " other public purpose[s]." We have interpreted the " other public purpose" language broadly. See Aaron v. Boston Redev. Authy., 66 Mass.App.Ct. 804, 808, 850 N.E.2d 1105 (2006) (redevelopment authority not barred from recovering land it held for urban renewal project notwithstanding a private party's having adversely occupied the land for more than twenty years).
d. Evaluating the record owner's arguments.
In light of the sweeping nature of the 1987 amendment, the record owner argues that the Legislature broadly intended that State or municipal " land put to a 'public purpose' could never be subject to adverse possession." On this basis, it argues that the limitations period cannot run while the property is held by a public party against whom adverse possession cannot accrue. In effect, the record owner is arguing that the 1987 amendment has brought us full circle back to a legal regime under which, at least as a general matter, time cannot run against the sovereign.
Although characterizing public lands as now being incapable of being subject to adverse possession is in some respects a tempting shorthand, it is not strictly speaking accurate. Nothing in the statutory language immunizes such lands from having an adverse possession claim begin to accrue during the period of public ownership. Nor does the new language manifest a wholesale embrace of the superseded common-law axiom that time cannot run against the sovereign (the doctrinal foundation on which Armstrong is based). Rather, the language signals a Legislative intent that adverse possession claims involving public property be treated merely as a limitations issue governed by statute.
With such overarching observations in place, we have
difficulty rejecting the record owner's argument. In interpreting legislative intent, we, of course, look primarily to the language of the relevant statutes. See Northeast Energy Partners, LLC v. Mahar Regional [21 N.E.3d 552] Sch. Dist., 462 Mass. 687, 692, 971 N.E.2d 258 (2012) (citing Simon v. State Examrs. of Electricians, 395 Mass. 238, 242, 479 N.E.2d 649 ). By its plain terms, G. L. c. 260, § 31, as amended, St. 1987, c. 564, § 54, is limited to addressing when the Commonwealth and its subdivisions may bring actions to recover land. While the 1987 amendment undeniably added broad protections allowing the Commonwealth and its subdivisions to recover land held for public purposes, nothing in the statute evinces an intent that such protections also benefit a subsequent private owner. Notably, G. L. c. 260, § 21, the statute of limitations that applies to private actions to recover land, was left unchanged by the 1987 enactment, and it sets forth no exception involving properties formerly held by the Commonwealth or its subdivisions.
See Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 247, 606 N.E.2d 1336 (1993) (related statutes must be construed in harmony with one another " so as to give rise to a consistent body of law" ).
Nor has the record owner demonstrated that its interpretation is supported by the public policy considerations that animated the 1987 enactment. The doctrine of adverse possession serves to clear titles and to promote economic development. Sandwich v. Quirk, 409 Mass. 380, 384, 566 N.E.2d 614 (1991). The addition of the proviso language in 1987 reflects a legislative judgment that such interests are outweighed by those furthered by letting the Commonwealth and its subdivisions bring actions to recover land held for public purposes. However, the countervailing interests in preserving land held for public purposes no longer come into play once the land in question has been transferred to a private party. As
the trial judge aptly observed:
" The purposes enumerated in G. L. c. 260, § 31 concern land uses, which benefit the public at large. Therefore, by preventing the Commonwealth from losing its right of action to recover such lands, the statute facilitates the continued protection of that land in the interest of preserving those public benefits. The statute grants the Commonwealth the ability to recover such lands so that they may continue to be held for those same purposes, which provide a benefit to the general public. To allow a private corporation the ability to take advantage of a law clearly designed to benefit the State would be inapposite to the purpose of that law."
Finally, we note that our conclusions are supported by case law in other jurisdictions. For example, the Supreme Court of Virginia has long distanced itself from the common-law rule recognized in Armstrong, 81 U.S. at 145, even though that case arose under Virginia law. See Thomas v. Young, 196 Va. 1166, 1177, 87 S.E.2d 127 (1955) (tax taking under State statute did not as matter of law interrupt the continuity of third party's adverse use, in part because " [t]he Commonwealth's immunity to the running of the statute of limitations cannot be used as a shield to the advantage of [the record owner] 'who alone will [21 N.E.3d 553] enjoy the benefits'" ), quoting from 1 Am. Jur. Adverse Possession § 104. See also Lovey v. Escambia County, 141 So.2d 761, 765 (Fla. Dist. Ct. App. 1962) (" The right to assert sovereign immunity from the operation of the statute of limitations does not extend, however, to [the government's] assignee or transferee where the suit is brought for the private benefit, and to enforce the rights of a private person" ).
Because we agree with the judge that G. L. c. 260, § 31, does not aid a private party in defending an otherwise
valid adverse possession claim, we affirm the judgment.