Check out this one from the Massachusetts Supreme Judicial Court, Smiley First, LLC v. Dep't of Transportation, No. SJC-13300 (May 23, 2023). [But first, a disclosure: our law firm filed this amicus brief in support of the property owner.]
Now that that is out of the way, here's the case.
Back in 1991, MassDOT's predecessor-in-interest took an easement by eminent domain for the relocation of Conrail facilities displaced by the infamous Big Dig project. The 1991 takings order described the easement taken:
"In connection with the laying out of the State highway hereinbefore described, it is necessary to relocate portions of railroad rights of way and land is hereby acquired for said relocation as follows:"Easements are hereby taken in parcels 60-E-RR-1, 60-E-RR-5, and 60-E-RR-6, shown on the plan hereinafter referred to, for the relocation of facilities of the Consolidated Rail Corporation, including all trees and structures located thereon . . . .Said easements (i) shall be used for railroad purposes only, (ii) shall not be used for the storage of any hazardous materials, hazardous wastes or hazardous substances other than in connection with the extension of Interstate Route 90 or the reconstruction of Interstate Route 93, and (iii) shall be subject to the rights of the owner of the underlying fee as hereinafter provided. . . .
Slip op. at 5.
Flash forward a few decades and MassDOT wants to use that same easement for "construct[ing] a test track and a 6,000 square foot building for newly purchased subway cars." Slip op. at 2. That, in MassDOT's view, is a "railway purpose," and within the scope of the taken easement. But to the property owner (by now, Smiley), this was a new use of the old easement. So, MassDOT, time to think about buying it, or if we're not willing to sell, then another taking along with just compensation provided. But MassDOT didn't go in that direction, it asserted that the new use was included in the existing 1991 easement, so decided you get nothing. See slip op. at 3 ("Based on its contention that the 2018 taking merely confirmed rights that it already held under the 1991 taking, MassDOT refused to pay Smiley any compensation for the 2018 taking, and this litigation ensued.").
The trial court concluded "that easements taken by eminent domain are not to be construed in favor of the freedom of the land" as in the usual case (where the owner of the servient estate retains all uses not inconsistent with the easement), and consequently entered summary judgment for MassDOT, concluding that a test track is within the scope of the easement for "railroad purposes." Slip op. at 9-10. The trial court held that the usual rule, where the intent of the grantor and grantee control, doesn't work for eminent domain, which is not a voluntary transaction and you can't really drill down and figure out the condemnor's intent. Thus, any rules of construction designed to give effect to the intent of the parties are not helpful.
The SJC reversed, and entered summary judgment for the owner. Yes, intent is not relevant, but the other rules of construction still apply. Slip op. at 11. And the big rule in construing easements is that any doubts about whether a use is included in the easement should be resolved in favor of freedom of land from the servitude. In other words, a narrow construction in favor of the owner of the servient estate (Smiley).
With that rule (re)established, the court concluded that the purpose of the 1991 easement wasn't for general railroad purposes, but for "the laying out of the State highway[,]" and more specifically for relocating Conrail. Slip op. at 12. But what about that "railroad purposes" language? That doesn't help because it is too general, and the specific purpose controls over the general; any railroad use had to be within the scope of laying out the highway and relocating Conrail.
The more recent easement, by contrast, "exceeds the scope of the 1991 taking" because MassDOT can use the land for testing of rail vehicles and related uses. Slip op. at 16-17. Here's how the court phrased it:
Here, whereas the purpose of the 1991 taking was to relocate railroad rights of way and Conrail's facilities, the 2018 taking provides, "[f]or the avoidance of doubt," that it encompasses the 1991 purpose, but that it also includes "all lawful railroad purposes within the Commonwealth." Specifically, the 2018 taking states that it encompasses, "without limitation," testing, calibration, and storage of any type of railroad vehicle, and the associated uses such as parking that are necessary to those primary uses.The Red Line test track project, which falls within this language, is a new and different project from the original relocation of Conrail's railroad track and facilities. It involves an additional 6,000 square foot building, a different type of railroad car, and a considerably larger portion of the burdened land than did the single track originally constructed by Conrail pursuant to the 1991 easement.
Slip op. at 17-18.
The SJC rejected each of MassDOT's counterarguments, concluding that "[b]ecause the scope of the 2018 easement exceeded the scope of the 1991 easement, it represented an additional taking. Accordingly, Smiley's claim for damages under G.L. c. 79 should not have been dismissed, and, on remand, Smiley is entitled to pursue its claim for damages." Slip op. at 24.
Smiley First, LLC v. Dep't of Transportation, No. SJC-13300 (Mass. May 23, 2023)
