In 1968, the town of Nantucket (town) took certain property (locus) by eminent domain for purposes related to Nantucket Memorial Airport (airport). At that time the locus was Usted as “owners unknown” on the town’s tax roUs, even though there was in fact an identifiable record owner. In 1985, an attorney acting on behalf of William J. Devine, trustee of the Loomis Realty Trust (trust), purchased the record owner’s title and subsequently conveyed it to the trust. Neither the record owner, the attorney, nor Devine had actual notice of the 1968 taking. Nor could the order of taking have been found in the chain of title to the locus by searching the grantor index. Further, after the 1985 purchase, the town restored the locus to the tax roUs, assessed and coUected taxes on it, commenced tax takings, aUowed a tax abatement, and issued building permits to Devine for construction on the locus. The question presented is whether in these circumstances Devine, as trustee, has good title to the locus.
Devine commenced this action in the Superior Court, seeking an order to quiet title to the locus, as well as other relief. After a jury-waived trial, a judge in the Superior Court made careful and comprehensive findings of fact and rulings of law, pursuant to which a judgment entered declaring that Devine, as trustee, “is owner in fee simple of the Locus” and that “[pjursuant to G. L. c. 240, § 6, title to the Locus is hereby quieted and established to be in” him. The town appealed, and we transferred the case here on our own motion.
1. Facts. We begin with the judge’s findings, which we accept unless they are clearly erroneous. Mass. R. Civ. R 52 (a), as amended,
In 1923, or shortly before, Loomis died and left a will in which he devised the locus to his sisters, Mary Loomis and Caroline Loomis. The will was probated in Somerset County, New Jersey, where Loomis apparently was living at the time of his death. No ancillary probate proceedings were ever commenced in Nantucket County. Mary Loomis and Caroline Loomis conveyed the locus to Lewis Popham Carmer by a deed dated November 22, 1923, and recorded in the Nantucket registry of deeds. The deed from the Loomis sisters to Carmer was listed in the grantor index under the names “Mary Loomis” and “Caroline Loomis.” That was the only deed from anyone named “Loomis” listed in the grantor index from 1980 back to 1923. No other conveyances from persons named “Loomis” appeared in the grantor index.
For unknown reasons, the locus was removed from the town’s tax rolls sometime after 1923. According to the former town counsel, the town’s tax records are not historically accurate. Some parcels of property simply dropped off the tax rolls in the 1920’s and 1930’s, particularly in the Surfside area of the town. When that happened, the property was fisted in the tax records as “owners unknown.”
The locus is in close proximity to the airport, at the southern end of a runway. Members of the Nantucket Airport Commission (commission) have for some time considered it advantageous to acquire property near the airport in order to prevent construction in that area. On September 10, 1968, the commission voted to
On June 24, 1970, the commission recorded an amended order of taking. The reason for that amendment was “to clarify the [ajvigation [e]asement and describe the rights taken therein.” That amendment did not affect the locus, which was again described as “Land shown as Block No. 285 on Plan of Surfside Lots recorded in the Nantucket County Registry of Deeds.”
On December 8, 1970, the commission recorded another amended order of taking. The reason stated for this amendment was that “possibly some requirements of the pertinent statutes of the Commonwealth were not complied with.” In that amended order of taking, parcel 3 was described as, “Land shown as Block 265 on Plan of Surfside [l]pts recorded in Nantucket County Registry of Deeds” (emphasis added). However, the December, 1970, amendment specifically referenced both the original 1968 order of taking and the June, 1970, amendment. The judge found that the reference to “Block 265,” rather than “Block 285,” in the December, 1970, amendment was a scrivener’s error and that anyone who examined the original order of taking and the two amendments would see that the December, 1970, amendment contained an error. Those findings have not been challenged on appeal.
The December, 1970, amendment also provided that the sum of $200, rather than $1,000, was awarded for the taking of parcel 3. That discrepancy is not explained on this record, but it is immaterial to our decision. Because the takings were considered to be from “owners unknown,” there was no reference to the takings in any of the grantor indices of persons in the chain of title
Prior to trial, representatives of the town searched the commission’s files for records pertaining to the taking and were not able to find any. Nor were they able to locate minutes of the commission’s meetings in 1968 or 1970. Therefore, there was no evidence as to what the commission actually did to effect the taking, other than the current (at the time of trial) commission chairman’s testimony that he thought the town would have done “whatever is necessary for the taking.” The judge inferred that, at the time of the taking, the town did little to ascertain the true owner of the locus. It may have done little more than check the tax records, which listed the owner of the locus as unknown. The judge also found that, for reasons that will be discussed later in greater detail, a reasonably prudent title examiner in 1968 would have found the 1923 deed conveying the locus to Carmer, and that, if the town had examined the grantor index for deeds from the subdivider (McKeever), it would have discovered that the record owner in 1968 was Carmer.
Devine is an experienced genealogist and has particular skills in finding both flaws in land titles and persons who may be heirs with standing to assert rights in connection with such flaws. He conducts business under the name Genealogical Search, Inc. As he testified, his business is to “try to clear up titles when [he] find[s] out they are either tax title properties or they could be owners unknown property.” Devine’s normal practice in the 1980’s was to locate an heir who would have standing to assert a claim with respect to a title defect, and then propose to that heir that a joint venture or partnership be established in order to assert the heir’s rights, with Devine agreeing to pay all legal fees and costs associated with the potential litigation. If the claim was successfully concluded, Devine and the heir would divide the profit equally.
In 1985, Paul Vozella, an attorney who performed title
On October 13, 1988, Devine executed a declaration of tmst entitled the “Loomis Realty Tmst” and recorded it in the registry of deeds. Vozella then conveyed the locus to Devine as trastee by deed dated September 12, 1988, and recorded in the Nantucket registry of deeds. Devine had not visited the locus before it was conveyed to Vozella. After it was conveyed to the tmst, he visited it on two occasions, once in 1990, and again in approximately 2000.
After the locus was conveyed to Vozella, the town restored it to the tax rolls. The town assessed property taxes to Vozella or the tmst beginning in 1986. However, neither Vozella nor the tmst paid the real estate taxes when they were due, resulting in the initiation of two tax takings by the town in 1991 and 1999.
On February 5, 1999, an attorney who was representing the trust wrote a letter to the board of health of Nantucket. Attached to that letter was a copy of a portion of a Nantucket assessor’s map showing the locus labeled “TON.” The judge inferred that “TON” stood for “Town of Nantucket.” A copy of the same map, with an arrow containing the word “Subject” pointing to the locus, was apparently transmitted by facsimile to Devine in 1995. The locus was marked “TON” in that map as well.
In October, 1998, the trust applied to the town for a permit to construct a septic system on the locus. That permit was issued in due course. On January 3, 2000, the trust applied to the town’s building inspector for a building permit to construct a house on the locus. That permit was issued on June 2, 2000. Sometime in 2001, the trust commenced excavation on the locus, prehminary to construction of the house. At that time, the locus was outside the airport fence. The vast majority of the locus lies beyond the building restriction fine that designates the buffer zone the town desires to keep on each side of the airport runways. The proposed location of the house was outside that buffer zone.
On June 12, 2001, town counsel sent a letter to the trust’s lawyer, asserting that the locus was the subject of a 1968 taking by the town. Thereafter, the town filled in the excavation on the locus and revoked the trust’s building permit. It also issued a stop work order and changed the location of the fence around the airport property so that it now includes the locus. The trust has been physically barred from the locus since June 12, 2001.
“A petition for the assessment of damages under section fourteen may be filed within three years after the right to such damages has vested; but any person, including every mortgagee of record, whose property has been taken or injured, and who has not received notice under section eight or otherwise of the proceedings whereby he is entitled to damages at least sixty days before the expiration of such three years, may file such petition within six months after the taking possession of his property or the receipt by him of actual notice of the taking, whichever first occurs, or, if his property has not been taken, within six months after he first suffers actual injury in his property.”
Similarly, under G. L. c. 79, § 18, an action challenging the validity of a taking must be brought within three years from the time that the right to damages vests. Cumberland Farms, Inc. v. Montague Economic Dev. & Indus. Corp.,
“The taking of land from a private owner against his will for a public use under eminent domain is an exercise of one of the highest powers of government.” Lajoie v. Lowell,
In the context of eminent domain, as in other contexts concerning real property, the recording of instruments serves vital purposes:
“ ‘First and foremost, [recording acts] are designed to protect purchasers who acquire interests in real property for a valuable consideration and without notice of prior interests from the enforcement of those claims.’ . . . ‘The second purpose of recording acts is fundamental to the achievement of tire first. To make the system self-operative and to notify purchasers of existing claims, the recording acts create a public record from which prospective purchasers of interests in real property may ascertain the existence of prior claims that might affect their interests.’ ”
Selectmen of Hanson v. Lindsay,
General Laws c. 184, § 25, provides: “No instrument shall be deemed recorded in due course unless so recorded . . . as to be indexed in the grantor index under the name of the owner of record of the real estate affected at the time of the recording.” The town argues that the recording provision of G. L. c. 184, § 25, is limited to instruments of “indefinite reference” and does not apply to taking orders under G. L. c. 79, § 3. We, however, agree with the judge in the Superior Court that the recording provisions of § 25 do apply to an order of taking. The “recorded in due course” provision of G. L. c. 184, § 25, by its plain terms, is not limited to instruments containing indefinite references. The Legislature could easily have written the statute to provide that “[n]o instrument containing an indefinite reference shall be deemed recorded in due course” (emphasis added); but it did not
Here, it is indisputable that the 1968 order of taking was not indexed “under the name of the owners of record of the real estate affected at the time of the recording.” G. L. c. 184, § 25. The owner of record at the time of the taking was Carmer. The judge found, on ample evidence, that Carmer could readily have been identified as the owner of the locus had the town taken reasonable steps to determine the record owner. There was no error in the judge’s conclusion that, in the circumstances of this case, the order of taking was not recorded “in due course” and was thus invalid.
Our analysis is not swayed by the town’s reliance on G. L. c. 36, § 27, which permits a registrar of deeds to enter the name of a grantor as “ ‘unknown,’ under the letter U” if the grantor’s name does not appear in the instrument to be recorded. Nothing in the provision can be read to absolve the town of its responsibility to exercise reasonable diligence in attempting to identify the record owner of the locus before declaring the owner to be unknown. Nor is there any suggestion that the registrar of deeds for Nantucket County did anything improper by recording the 1968 order of taking as “owner unknown,” given that the town presented the order to the registry in that condition. The sole evidence of the steps taken by the town in 1968 was the current commission chair’s testimony that he thought the town would have done “whatever is necessary for the taking.” The judge was warranted in finding that this general statement, apparently made without the benefit of personal knowledge, was outweighed by the evidence that the instruments duly recorded in the registry of deeds would have revealed the deed from McKeever (the subdivider) to Loomis, as well as the further deed from the Loomis sisters to Carmer. He was warranted in finding, based on uncontradicted testimony from an expert the judge found to be
This court’s decision in Hardy v. Jaeckle,
In view of the language of G. L. c. 184, § 25, the strictness with which we interpret the eminent domain statutes, and the important purposes served by the recording acts, we agree with the judge that the order of taking was not recorded in due course. As a result, the three-year limitations period for challenging the validity of a taking or filing a petition for damages did not start running as of the date of the “owner unknown” order of taking in 1968. Devine received actual notice of the town’s claim to have taken the locus by letter dated June 12, 2001. He filed this action on August 28, 2001, less than three months later. By any standard, Devine commenced this action in a timely manner.
3. Constitutional claims. The town’s actions, as the judge properly surmised, implicate constitutional concerns. Notice to the property owner is constitutionally required before property is taken by eminent domain. Opinion of the Justices,
The invisibility, as the judge found, was not limited to the registry of deeds. At the time of the taking, G. L. c. 79, § 7D, as amended through St. 1967, c. 476, required a town or other taking authority to pay damages to the Superior Court
4. Bona fide purchaser. The town also challenges the judge’s ruling that Devine was a bona fide purchaser of the locus without notice of the taking.
Finally, we will not ignore the town’s own actions in rendering the taking unascertainable to reasonable title examination. The town purported to take the locus for purposes relating to the airport, but did not use it for any purpose until years later. There is no evidence that the town paid for the locus, or set money aside in the event that the owner would be found. The town did not take physical possession of the locus for over thirty years after the purported taking, and then only when Devine commenced building on the locus. In many respects, the town’s behavior is inapposite to its claim to be the owner of the locus: it assessed taxes on the locus; it effected tax takings, which it allowed to be redeemed; it granted a tax abatement; and it issued the necessary permits for building on the locus. The town, apparently relying on nothing but its own inaccurate tax records, drew up an “owners unknown” order of taking, recorded it outside the existing chain of title, and then acted for the next thirty years as if no taking had occurred, until revoking Devine’s permits, filling in his excavations, entering the locus, and fencing it in. There is considerable force in the policy favoring the finality of takings. But that policy is outweighed in this case by the necessity of giving adequate notice before effecting an eminent domain taking, and by the importance of maintaining a reliable land recording system. In the unusual circumstances of this case, the judge properly quieted title in Devine.
Judgment affirmed.
Notes
The Superior Court judge also dismissed Devine’s claims against the Nantucket building commissioner because no evidence concerning any such claims had been presented at trial. Devine cross-appealed, but that ruling has not been challenged on appeal.
We acknowledge the amicus briefs of the New England Legal Foundation; the Real Estate Bar Association for Massachusetts, Inc.; and the Abstract Club.
The 1968 order of taking and the June, 1970, amendment both listed the commission as the grantor of the locus, an obvious error. The December, 1970, amendment erroneously listed as grantor an individual who had discharged a mortgage on a parcel unrelated to the locus.
The judge took judicial notice that Devine’s business practices are well documented in the courts of this Commonwealth. See, e.g., Christian v. Mooney,
The trust’s failure to pay the property taxes when due is consistent with Devine’s business practice, which is to pay the property taxes when he resolves the heir’s claim and sells the title interest that he has acquired.
The judge rejected the town’s contention that Devine acquired actual knowledge of the taking by receiving the map in 1995. Among other reasons, the judge credited Devine’s testimony that he understood the “TON” notation to refer to a tax taking initiated in 1991. The town has not challenged these findings on appeal.
The judge also suggested that a title examiner, noting that the deed to George L. Loomis recited that he was a resident of Somerset County, New Jersey, could have checked probate records in that county and discovered the will devising the locus to the Loomis sisters. The deed to Carmer recited that the locus had been left to the Loomis sisters in Loomis’s will. In Hardy v. Jaeckle,
General Laws c. 79, § 7D, as amended through St. 1975, c. 791, now requires a taking authority to pay the damages to the treasurer. See St. 1970, c. 795, § 1.
The town contests the judge’s ruling that Devine’s status as a bona fide purchaser without notice was sufficient to give him standing to challenge the taking. The town does not appear to dispute the general principle that a bona fide purchaser may have such standing; it merely suggests that Devine in fact had notice. Neither the judge nor the parties discuss cases such as Barnes v. Springfield,
The town contends that a reasonably diligent title search would not disclose a Federal condemnation proceeding, for which notice is not required under Federal law. The argument is irrelevant to the town’s actions at issue here. In any event, it appears that, although recording is not required under Federal statutes, the United States Attorney for Massachusetts has made it a practice to record Federal takings. See A.L. Eno & W.V. Hovey, Real Estate Law § 18.7, at 540 n.l (4th ed. 2004).
We need not consider the town’s suggestion, made for the first time in its