1148 Davol Street LLC v. Mechanic's Mill One LLC

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13-P-1985 Appeals Court

1148 DAVOL STREET LLC. vs. MECHANIC'S MILL ONE LLC.

No. 13-P-1985.

Bristol. September 4, 2014. - December 12, 2014.

Present: Cohen, Meade, & Milkey, JJ.

Adverse Possession and Prescription. Municipal Corporations,
Adverse possession. Real Property, Adverse possession.

Civil action commenced in the Superior Court Department on
April 8, 2008.

The case was heard by Renée P. Dupuis, J.

Arthur D. Frank, Jr., for the defendant.
John M. Sahady for the plaintiff.

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
2

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.

1. Background. 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).1 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

1
The facts are drawn from the parties' bare bones
stipulation, even though some of the stipulated facts appear
somewhat at variance with documents referenced in the
stipulation. In any event, the discrepancies are not material.
3

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 St., 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.2 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.

2. Discussion. "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 (2000). As noted,

the only issue in dispute is whether the plaintiff can count

2
The stipulation does not flesh out what the actual adverse
use entailed. The verified complaint alleged that the Berubes
paved the area, cordoned it off with a fence and other means,
and used it for parking.
4

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 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."3 As the plaintiff points

out, the current action between two private parties indisputably

is not an action "commenced by or in behalf of the

3
In its current form, G. L. c. 260, § 31, inserted by St.
1987, c. 564, § 54, (emphasis supplied) reads in full as
follows:

"No action for the recovery of land shall be commenced
by or in behalf of the commonwealth, except within twenty
years after its right or title thereto first accrued, or
within twenty years after it or those under whom it claims
have been seized or possessed of the premises; but this
section shall not apply to the province lands in the town
of Provincetown lying north and west of the line fixed by
section twenty-five of chapter ninety-one, to the Back Bay
lands, so called, in Boston, or to any property, right
title or interest of the commonwealth below high water mark
or in the great ponds; provided, further, that this section
shall not bar any action by or on behalf of the
commonwealth, or any political subdivision thereof, for the
recovery of land or interests in land held for
conservation, open space, parks, recreation, water
protection, wildlife protection or other public purpose."
5

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 (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

(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 (C.C. Mass. 1821) (No. 15,373); Lindsey v.
6

Lessee of Miller, 31 U.S. (6 Pet.) 666, 673 (1832). Instead,

adverse possession began to run only when the land was

transferred into private hands. See id. at 146.4

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

4
Armstrong provides a vivid illustration of this principle.
Long after the party claiming title by adverse possession had
begun its adverse use, the Commonwealth of Virginia gained title
to the property by operation of law when the record owner failed
to pay applicable taxes. 81 U.S. at 133. The record owner
eventually redeemed title. Id. at 137. The adverse use in fact
continued throughout, lasting for an uninterrupted period that
far exceeded the fourteen year limitations period then
applicable in Virginia. Id. at 144. Nevertheless, the Court
ruled, as a matter of law, that because no adverse possession
could run against the State, the State's holding title by itself
broke the adverse possessor's "continuity of possession," and
the applicable limitations period began to run only when the
record owner reclaimed his title. Id. at 146, citing Hall v.
Gittings' Lessee, 2 H. & J. 112) (Md. 1807).
7

Commonwealth. Inhabitants of Cohasset v. Moors, 204 Mass. 173,

178 (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.5

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 (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

5
In 1852, the Legislature expressly repealed the 1835
statute with respect to its application to the Commonwealth's
interest in certain "lands or flats" in the Back Bay area of
Boston, and it stated that "no adverse possession or occupation
[of the Back Bay lands] . . . for any period of time, shall be
sufficient to defeat or divest the title of the Commonwealth
therein." St. 1852, c. 253, §§ 1, 2. In 1854, the statute was
amended further to exempt "all the Province lands within the
town of Provincetown," through language that declared the
specified lands to be free from claims of adverse possession.
St. 1854, c. 261, § 8. These amendments were eventually
codified in the general statutes of 1860, G. S. c. 154, § 12.
The statute was amended once more in 1867 to exclude from
adverse possession the "great ponds" and rights in waterfront
property below the high-water mark. St. 1867, c. 275, § 1.
8

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."6

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 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

6
The court in Harrison also distinguished Armstrong on the
ground that there, Virginia had held title to the land by
operation of law, while here, "the commonwealth never had even a
momentary title to the land." Harrison at 396. The court noted
that some argument could be made that had the tax taking
proceeded to foreclosure, this would restart the adverse
possession clock, but declined to reach this "more subtle
argument." Ibid. Almost a century later, the court faced the
reserved question in a case in which the land at issue had been
foreclosed upon but was still held by the municipality.
Sandwich v. Quirk, 409 Mass. 380, 383 (1991). The court
declined to resolve the question of whether a subsequent change
in the law exempted the city from being subject to the twenty
year limitations period (see n.7, infra), but held that "t]he
statute of limitations starts to run against a municipality, if
at all, when it takes adversely possessed land for nonpayment of
taxes." Id. at 385.
9

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 (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).7

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

7
Compare Sandwich v. Quirk, 409 Mass. 380, 382 & n.6 (1991)
(noting, without resolving, the question whether land obtained
by a municipality through a tax taking is held for a "public
purpose" within the meaning of G. L. c. 260, § 30).
10

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).8 Rather, the language signals a

Legislative intent that adverse possession claims involving

public property be treated merely as a limitations issue

governed by statute.9

8
Unlike the amendments to the limitations period enacted
during the nineteenth century, see note 5, supra, the 1987
amendment did not repeal the 1835 statute as it applied to the
exempted properties, nor did it abrogate the Commonwealth's
waiver of sovereign immunity. Indeed, in form, the new proviso
language is stated merely as an exception to the general rule
that the Commonwealth is subject to the same twenty year
limitation period as private parties (albeit an exception that
may, as a practical matter, "swallow the rule").
9
We acknowledge the interpretive principle that radical
departures from the common law are not to be "lightly inferred."
See, e.g., Passatempo v. McMenimen, 461 Mass. 279, 290 (2012).
However, the Legislature unquestionably broke with the common
law in 1835. The question here is whether in 1987 the
Legislature intended a wholesale re-adoption of the common law,
including its corollary counting rules.
11

With such overarching observations in place, we have little

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, trustee v. Mahar Regional Sch. Dist., 462 Mass.

687, 692 (2012) (citing Simon v. State Examrs. of Electricians,

395 Mass. 238, 242 (1985)). 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 subdivision. See Boswell v. Zephyr

Lines, Inc., 414 Mass. 241, 247 (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
12

that animated the 1987 enactment.10 The doctrine of adverse

possession serves to clear titles and to promote economic

development. Sandwich v. Quirk, 409 Mass. 380, 384 (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.11 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

10
The amendment to § 31 was included as part of a
comprehensive environmental measure titled, "An Act Providing
for an Environmental Enhancement and Protection Program for the
Commonwealth." St. 1987, c. 564. One of the main purposes of
the bill was to promote the acquisition and public enjoyment of
land for recreational uses. Id. at § 8 (appropriating funding
for municipalities' acquisition of land for "municipal park and
recreation purposes and for the restoration and rehabilitation
of such . . . lands").
11
Of course, this means that purchasers will need to
exercise diligence in keeping an eye out for potential adverse
possession claims regardless whether there is a public entity in
the chain of title. We see no hardship or unfairness in this
result.
13

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 (1955) (tax taking under State statute did not as matter of

law interrupt the continuity of a 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 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").12

12
There are other cases, to the same general effect, that
arrive at that result through a somewhat different doctrinal
framework. For example, California appellate courts have
highlighted that even if an adverse possessor cannot gain rights
against the government during the period of public ownership, he
"may nevertheless adversely possess the land as against others."
Abar v. Rogers, 23 Cal. App. 3d 506, 512 (1972). Meanwhile, the
14

3. Conclusion. 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.13

So ordered.

Connecticut Supreme Court has held that a record owner who
obtained title following a tax taking cannot invoke a statute
that protected municipalities from adverse possession claims
involving land held for public use, on the ground that the land
was never put to public use. Goldman v. Quadrato, 142 Conn.
398, 402, 403 (1955).
13
It is not clear on this record whether the city acquired
title through purchase, eminent domain, tax foreclosure, or some
other means. In any event, the record owner has not argued that
the mode through which the municipality acquired title -- as
opposed to the fact of its holding title -- mandates a
restarting of the adverse possession clock. Compare Sandwich v.
Quirk, 409 Mass. at 385 (in the tax foreclosure context, adverse
possession cannot begin to run against a municipality at least
until it takes the land).