Daily Development for Monday, November 13, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ADVERSE POSSESSION/EMINENT DOMAIN.  Holding of land by the Boston Redevelopment Authority for urban renewal purposes is a “public purpose” within the meaning of the Massachusetts statute governing the Commonwealth’s land recovery rights, and as such, excludes the property from adverse possession claims by private claimants..

 Aaron v. Boston Redevelopment Auth., 850 N.E.2d 1105 (Mass.App.Ct. 2006). 

This case concerns a parcel of land taken by eminent domain and held by the Boston Redevelopment Authority (“BRA”) for nearly forty years as part of a plan approved pursuant to the Massachusetts statute governing urban renewal and housing development. 

Ultimately, BRA proposed to sell the parcel for construction of a residential building, and a developer was designated.  Plaintiff Aaron, the owner of an abutting parcel, sought a judicial declaration that she had established a prescriptive easement over part of the BRA parcel by virtue of her open and adverse use of it as a driveway serving the rear of her parcel.  The Land Court granted BRA’s motion for summary judgment, and Aaron appealed. 

At issue was whether the holding of the land by BRA for urban renewal purposes constituted an “other public purpose” within the meaning of M.G.L. c.260 § 31, the statute governing land recovery actions by the Commonwealth.  Under that statute, the Commonwealth may bring an action to recover land within twenty years of the adverse acts necessitating the land recovery action against the party claiming right by adverse possession.  In short, there is a twenty year adverse possession period that can run against public land in favor of private adverse users.

The statute, however,  provides an exception for land held for “conservation, open space, parks, recreation, water protection, wildlife protection, or other public purposes,” which land the Commonwealth has a right to recover at all times.  Without reaching the merits of plaintiff’s adverse possession claim, the Court held that urban renewal and redevelopment purposes were “other public purposes” within the meaning of the statute, and thus, plaintiff’s claim could not be sustained against the Commonwealth’s superior right. 

In reaching its holding, the Court cited the legislative history of the urban renewal statute as well as prior cases in which the Supreme Judicial Court had recognized urban renewal as an important public purpose.  The Court went on to reject plaintiff’s contention that, under principles of statutory construction, the term “public purpose” should be more narrowly construed as applying to only those purposes similar in nature to those enumerated in the statute.  Noting that urban renewal concerns “the environment and surroundings in which the people of the Commonwealth live,” the Court found that urban renewal is consonant with the other purposes specified in the statute.  Accordingly, the Court affirmed. 

Comment 1:   This case is consistent with the law in many jurisdictions that carves out an exception for adverse possession against public land when that land is held for “governmental” purposes.  Although one might dispute whether land held idle for forty years with an ultimate plan to turn it over for private development in fact is “governmental,” it is not a bit surprising that the court concluded that it was sufficiently “governmental” to invoke the “public purpose” exception, especially when it was embodied in the statute.

Comment 2: Some jurisdictions, as a matter of common law, protect all publicly owned property.  Others, as suggested, will not protect from adverse possession claimants property owned by the public in its proprietary capacity.  Quintessential “proprietary” land is property acquired through tax foreclosure or for other debt collection purposes.

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