▪ Mass Court Invalidates 40-Year Taking For Lack of Notice

The Town seized some land in Nantucket
But found not the owner before it took it.    
     The Mass. Supremes said “no way,”    
      and threw out to-day
The forty-year old taking, and struck it.

The Supreme Judicial Court of Massachusetts in Divine v. Town of Nantucket, 449 Mass. 499, ___ N.E.2d ___ (July 19, 2007) invalidated the town's 1968 exercise of eminent domain since the town's taking listed the owners of the property as "owners unknown," which was not sufficient notice to the landowner.  Here's a summary of the facts by the court:

In 1968, the town of Nantucket (town) took certain property (locus) by eminent domain for purposes related to Nantucket Memorial Airport (airport). At that time the locus was listed as "owners unknown" on the town's tax rolls, even though there was in fact an identifiable record owner. In 1985, an attorney acting on behalf of William J. Devine, trustee of the Loomis Realty Trust (trust), purchased the record owner's title and subsequently conveyed it to the trust. Neither the record owner, the attorney, nor Devine had actual notice of the 1968 taking. Nor could the order of taking have been found in the chain of title to the locus by searching the grantor index. Further, after the 1985 purchase, the town restored the locus to the tax rolls, assessed and collected taxes on it, commenced tax takings, allowed a tax abatement, and issued building permits to Devine for construction on the locus. The question presented is whether in these circumstances Devine, as trustee, has good title to the locus.

The court held that eminent domain is an exercise of one of the highest powers of government an must be strictly construed to protect citizens against encroachment on their property rights. Notice to an owner whose property is to be seized is entitled to pre-taking notice of a sort designed to give the owner actual notice of the upcoming acquisition:

We agree with Devine, however, that § 7D, at the time of the taking and now, has presumed that a reasonable investigation would be conducted before a town determined that the owner of taken property was unknown. As a matter of fundamental fairness, a town cannot take property, declare the owner to be unknown, and only then investigate whether there is anyone to whom damages can be paid.

A report on the decision from the Cape Cod Times is reprinted at Eminent Domain Watch.