Eldredge v. Board of Selectmen

18 Mass. App. Ct. 502
CourtMassachusetts Appeals Court
DecidedSeptember 4, 1984
StatusPublished
Cited by6 cases

This text of 18 Mass. App. Ct. 502 (Eldredge v. Board of Selectmen) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eldredge v. Board of Selectmen, 18 Mass. App. Ct. 502 (Mass. Ct. App. 1984).

Opinion

Kass, J.

More than five years after an eminent domain taking by the selectmen of Brewster, substantially beyond the two-year limitation period for damage petitions then prescribed by G. L. c. 79, § 16, the plaintiffs brought a complaint to recover an award the selectmen had made on account of the land to which the plaintiffs claim title. The question for decision is whether the plaintiffs’ claim is time-barred, as a Superior Court judge decided, or whether it has life under G. L. c. 79, § 41.

[503]*503The record below was established in accordance with Mass.R.A.P. 8(d), as appearing in 378 Mass. 934 (1979), and the facts necessary to the resolution of the appeal are undisputed. In their order of taking, recorded August 19, 1970, the selectmen awarded $50,200 as just compensation for the land in question (the “locus”). Unable to determine who owned the ten parcels which made up the locus, the selectmen attributed ownership to persons unknown and presumably (the record is obscure on the point) paid the award to the town treasurer conformably with G. L. c. 79, § 7D.3 As to one parcel of 6.90 acres, the town paid the award made, $6,000, to the plaintiffs. So far as the other nine parcels were concerned, the plaintiffs made no effort to obtain payment until October 6, 1975, when they filed a complaint alleging that a demand had been made under G. L. c. 79, § 41, and, in addition to a declaration of their rights (a less than apt choice of procedure), seeking payment of the award with accumulated interest.

It is not necessary to elucidate the settled proposition that a person claiming damage to property by exercise of the power of eminent domain must file a petition for assessment of damages within the period provided in G. L. c. 79, § 16.4 See, e.g., Briggs v. Boston, 230 Mass. 148, 151 (1918); Nicklas v. New Bedford, 250 Mass. 471, 474-475 (1925); Wine v. Commonwealth, 301 Mass. 451, 455-456 (1938); Boyce v. Greater Lowell Regional Vocational Technical Sch. Dist., [504]*5047 Mass. App. Ct. 639, 644-645 (1979). That statutory limitation period applies not only to controversies over the amount of damages (the usual petition for an assessment of damages), but as well to disputes over whether a taking has occurred or damages have been inflicted. See Whitehouse v. Sherborn, 11 Mass. App. Ct. 668, 671-675 (1981), in which we called to attention that the Legislature, in the interest of affording public agencies predictability and finality concerning their obligations when they take private property, has opted for an exclusive statutory remedy to vindicate damage to land taken for a public purpose.

Indeed, in Selectmen of Brewster v. Sparrow, 15 Mass. App. Ct. 988 (1983), a case related to and ordered consolidated with the one now before us (but in which § 41 was not alluded to by the parties), we suggested that the plaintiffs’ complaint was a candidate for a motion to dismiss on the authority of the line of cases we have just referred to. The selectmen took up the suggestion and filed such a motion, and a judge of the Superior Court, with a bow to Selectmen of Brewster v. Sparrow, supra, understandably allowed the motion. From the ensuing judgment dismissing the complaint, the plaintiffs have appealed.

What, then, are we to make of G. L. c. 79, § 41? It provides that, “If no petition under section fourteen is filed within the time limited, the award of damages shall be final and the amount thereof shall be paid upon demand, and if not so paid may be recovered in an action of contract.” By its very text, the statute creates a cause of action on a contract theory beyond the time limitation established by § 16 for actions brought under § 14, the section which authorizes petitions for assessment of damages. We have no doubt, therefore, that a person to whom a taking authority has awarded damages, but who has failed to pick up the money within the § 16 time limit, still has six years (G. L. c. 260, § 2) from the date the right to eminent domain damages vested to bring an action to claim the funds set aside in that person’s name.

In the instant case the award on account of the locus was made not to the plaintiffs but to persons unknown and the next, [505]*505and residual, question is whether a claimant for damages to a person unknown must present himself within the time limit set generally for eminent domain claims by § 16, or may exercise the right to establish title to the land taken under the more generous time limit of § 41. Legislative history affords relatively little guidance.

The current version of § 41 came on the statute books in the consolidation and reorganization of the eminent domain statutes effected by St. 1918, c. 257, § 187. Its roots appear in St. 1874, c. 372, § 1, which consolidated provisions of general statutes relating to railroads into a “General Railroad Act.” Section 67 of the General Railroad Act, one of seven sections which dealt with eminent domain takings by railroads and the payment of damages, provided that if a party were dissatisfied with the estimate of damages made by county commissioners, it could apply for a jury to assess the damages. If, however, “no such application be made, the county commissioners, after the expiration of said term of one year, may issue warrants of distress to compel the payment of damages . . . .” Thus, the statutory scheme early differentiated between the time for contesting damages and receiving payment of the damage award. That separate right to recover the damage award (now appearing in G. L. c. 79, § 41) was adverted to in Willar v. Commonwealth, 297 Mass. 527, 528 (1937). The earlier statutory and decisional law had no occasion to consider the case of the unknown claimant.

By St. 1964, c. 579, § 3, however, the Legislature, through its insertion of G. L. c. 79, § 7D, gave consideration to the unknown or uncertain owner. That act, as we have noted, provided for the payment of the taking award into a special account.5 Upon having satisfied the taking authority “of his right to receive it,” the amount so deposited was to be “transferred” to the “person entitled to such amount or any portion [506]*506thereof.” G. L. c. 79, § 7D.6 Under § 7D, the segregated account remains in existence until presumed abandoned in accordance with G. L. c. 200A, § 3, and the operation of the escheat procedures set forth in G. L. c. 200A, §§ 7, 8, and 8A. See note 3, supra. Even as shortened by St. 1981, c. 351, § 102 (see note 3, supra), the time before the escheat mechanism begins to work is longer than the limitation period in G. L. c. 79, § 16.7 Had the Legislature intended to limit the assertion of rights to eminent domain awards by unknown persons to the § 16 limitation period, the unconditional reference in § 7D to c. 200A (in the sense that the time of presumed abandonment was tied to c. 200A rather than to G. L. c. 79, § 16) would have been superfluous, contrary to the canon that no portion of statutory language may be deemed superfluous. Commonwealth v. Gove, 366 Mass. 351, 354 (1974). Devaney v. Watertown, 13 Mass. App. Ct. 927 (1982).

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18 Mass. App. Ct. 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eldredge-v-board-of-selectmen-massappct-1984.