Holliston Sportsmen's Ass'n v. Planning Board of Holliston

Massachusetts Appeals Court

Holliston Sportsmen's Ass'n v. Planning Board of Holliston

447 N.E.2d 7, 15 Mass. App. Ct. 977, 1983 Mass. App. LEXIS 1285

CourtMassachusetts Appeals Court

DecidedMarch 31, 1983

StatusPublished

Cited by1 cases

This text of 447 N.E.2d 7 (Holliston Sportsmen's Ass'n v. Planning Board of Holliston) 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.

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Holliston Sportsmen's Ass'n v. Planning Board of Holliston, 447 N.E.2d 7, 15 Mass. App. Ct. 977, 1983 Mass. App. LEXIS 1285 (Mass. Ct. App. 1983).

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Opinion

1. On this record, there was no basis for dismissing the action as to the defendant Lenmar Builders, Inc., [978]*978under Mass.R.Civ.P. 12(b)(1), (2) or (5), 365 Mass. 755 (1974). The errors in that respect appear to have resulted from indiscriminately copying into the judgment (with the express approval of the judge under Mass. R.Civ.P. 58[a] [2], 365 Mass. 826 [1974]) every ground of dismissal under rule 12(b) that defense counsel had cited in his motion to dismiss. 2. That motion and the dismissal as to that defendant under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), display failures to comprehend the teachings of such cases as Nader v. Citron, 372 Mass. 96, 97-98,104 (1977), and Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 87, 89 (1979). In particular, there was no way in which the judge could safely predict a failure of proof comparable to that illuminated in DiGirolamo v. Philadelphia Gun Club, 371 Pa. 40, 43 (1952). However, counsel would do well to consider the import of Smithy. New England Aircraft Co., 270 Mass. 511, 531 (1930), and the cases cited therein. 3. It is clear from the appendix, from the plaintiff’s brief and from its oral argument that the planning board has done nothing in contravention of the statutory prohibition against “authorizing] the taking of land” (G. L. c. 41, § 81DD, inserted by St. 1953, c. 674, § 7) and that only one of the matters complained of is even within the competence of a planning board (see G. L. c. 41, § 81M). If the plaintiff does succeed in establishing a prescriptive right over Lenin or’s land such as that asserted in the affidavits attached to the complaint, the planning board will have to reckon with that right. See Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970).

Russell Lawrence Chin for the plaintiff. Kevin L. O’Brien for Lenmar Builders, Inc. William H. Clancy for Planning Board of Holliston.

Judgments reversed.

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1. On this record, there was no basis for dismissing the action as to the defendant Lenmar Builders, Inc., [978]*978under Mass.R.Civ.P. 12(b)(1), (2) or (5), 365 Mass. 755 (1974). The errors in that respect appear to have resulted from indiscriminately copying into the judgment (with the express approval of the judge under Mass. R.Civ.P. 58[a] [2], 365 Mass. 826 [1974]) every ground of dismissal under rule 12(b) that defense counsel had cited in his motion to dismiss. 2. That motion and the dismissal as to that defendant under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), display failures to comprehend the teachings of such cases as Nader v. Citron, 372 Mass. 96, 97-98,104 (1977), and Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 87, 89 (1979). In particular, there was no way in which the judge could safely predict a failure of proof comparable to that illuminated in DiGirolamo v. Philadelphia Gun Club, 371 Pa. 40, 43 (1952). However, counsel would do well to consider the import of Smithy. New England Aircraft Co., 270 Mass. 511, 531 (1930), and the cases cited therein. 3. It is clear from the appendix, from the plaintiff’s brief and from its oral argument that the planning board has done nothing in contravention of the statutory prohibition against “authorizing] the taking of land” (G. L. c. 41, § 81DD, inserted by St. 1953, c. 674, § 7) and that only one of the matters complained of is even within the competence of a planning board (see G. L. c. 41, § 81M). If the plaintiff does succeed in establishing a prescriptive right over Lenin or’s land such as that asserted in the affidavits attached to the complaint, the planning board will have to reckon with that right. See Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970).

Russell Lawrence Chin for the plaintiff. Kevin L. O’Brien for Lenmar Builders, Inc. William H. Clancy for Planning Board of Holliston.

Judgments reversed.

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447 N.E.2d 7, 15 Mass. App. Ct. 977, 1983 Mass. App. LEXIS 1285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holliston-sportsmens-assn-v-planning-board-of-holliston-massappct-1983.

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