Stover v. Dep't of Conservation

CHARLES C. STOVER, III, & another¹ v. DEPARTMENT OF CONSERVATION AND RECREATION.

14-P-306

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

June 29, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Department of Conservation and Recreation (DCR), through the Attorney General, appeals pursuant to the doctrine of present execution² from a denial of its motion for judgment on the pleadings dismissing an action filed by Charles and Katherine Stover (collectively, Stovers). We affirm.

Background. The following facts are relevant to our decision. The Stovers own land in the Lower Falls section of Newton. The rear portion of their property abuts a railroad right of way owned by DCR. The right of way consists of a strip of land over which DCR is constructing a walking and biking path. The Stovers filed suit in the Land Court after DCRcontractors used some of the right of way near the Stovers' property as a staging area for construction. Claiming a fee simple interest in one-half of the right of way pursuant to G. L. c. 183, § 58, the Stovers' amended complaint seeks to quiet title to the Stovers' portion on the right of way.

DCR moved for judgment on the pleadings dismissing the Stovers' complaint on the basis of sovereign immunity. A judge denied DCR's motion, on the basis that the Legislature's express grant of immunity to the Commonwealth with respect to suits under G. L. c. 240, §§ 1-5 (try title statute), implied a waiver of immunity in actions under G. L. c. 240, §§ 6-10 (quiet title statute). We review de novo the issues raised in DCR's motion. See Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 n.6 (2009).

Discussion. It is well settled that "the Commonwealth cannot be sued unless there has been a waiver of its sovereign immunity." Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 31 (2006). "The rules of construction governing statutory waivers of sovereign immunity are stringent"; "[c]onsent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981).

It is undisputed that G. L. c. 240, §§ 6-10, does not expressly waive immunity with respect to actions to quiet title. However, such a waiver is implied. Walter E. Fernald Corp. v. The Governor, 471 Mass. 520, 526 (2015) ("holding that sovereign immunity does not encompass actions by which a plaintiff seeks to vindicate its ownership of specified parcels of recorded land"). "[A]ctions of this type do not implicate the concerns that support the continued application of sovereign immunity" because "[d]isputes concerning a plaintiff's ownership of specified parcels of recorded land do not tend to concern 'the discretionary functions of a public official.' . . . These types of actions also do not typically stem from 'unauthorized actions of a public official,' . . . [a]nd the adjudication of a plaintiff's ownership of specified...