18 Mass. App. Ct. 502 | Mass. App. Ct. | 1984
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.
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.
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,
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.
Reading § 41 conjunctively with § 7D, we are led to the conclusion that the right conferred by § 41 to recover (but not contest) an eminent domain award of damages made by a taking authority covers the case of a claimant who seeks to establish his right to the award by proving his ownership at the time of the taking. That conclusion does no violence to the many cases which have required that challenges of an award or an aspect of a taking adhere to the time limitations of § 16. As we observed in Whitehouse v. Sherborn, 11 Mass. App. Ct. at 671, the policy underlying rigorous application of the § 16 limitation period “is the need for an efficient and final determination of any dispute regarding a public landtaking, so that title to the land taken can be settled, damages for the taking assessed, and the construction of the public improvement
A final question is whether the concluding sentence added to § 7D by St. 1970, c. 795, § 1, curtails actions under § 41 to recover funds deposited under § 7D. That sentence says: “No action by a taking authority under the provisions of this section [i.e., § 7D] shall be construed so as to prevent or delay the operation of section sixteen.” We read that savings clause as assuring that § 7D will not be construed to defer the date when the right to damages has vested for purposes of calculating under § 16 the time during which petitions under § 14 may be brought. Such a delay could, indeed, subject a taking authority to the uncertainty which § 16 is designed to avoid. As we have seen, however, a § 41 action does not bear on those factors.
In view of our opinion that the plaintiffs may attempt, in the context of an action under G. L. c. 79, § 41, to establish their entitlement to the unpaid award of damages made by the selectmen, the judgment dismissing the complaint is reversed.
So ordered.
Under G. L. c. 79, § 7D, as appearing in St. 1970, c. 795, § 1, the treasurer of the taking authority holds the award in a savings account for the benefit of whatever persons are entitled to the award. If no person claims the award, the money escheats to the Commonwealth. See G. L. c. 200A, §§ 3, 8A, & 9. At the times material in this case, the property deposited would have been presumed abandoned if not claimed within fourteen years. G. L. c. 200A, § 3, inserted by St. 1950, c. 801, § 1. By St. 1981, c. 351, § 102, the time in which the property was presumed abandoned was reduced to five years.
That period, by reason of the enactment of St. 1982, c. 248, § 1, is now three years. At the times material to this case, the time was two years. See St. 1962, c. 797, § 1. Prior to 1962, the period was one year. See St. 1918, c. 257, § 187. An extension of six months, as to persons who receive no notice of taking, from the time of actual notice or possession of the property taken, whichever first occurs, is not here relevant.
Under the section as first enacted by St. 1964, c. 579, § 3, the taking authority was required to deposit the award with the judges of the Superior Court. That procedure was altered by St. 1970, c. 795, § 1, so that the amount set aside was held at interest in a segregated account by the treasurer of the taking authority.
Prior to the amendment effected by St. 1970, c. 795, § 1, the claimant was required to satisfy the Superior Court of his right to receive the award of damages.
It is possible, although not likely, since a deposit of the sort here at issue is now presumed abandoned after five years, that property could escheat before expiration of the six year statute of limitations for contract actions. Such a sequence is improbable because of the time required to go through the steps prescribed in G. L. c. 200A, §§ 7 and 8.
We do not overlook that in a certain sense the Commonwealth, when it is the taking authority, benefits from the transfer of funds to it under G. L. c. 200A, although there will be a shift in the funds from the budget of the agency making the taking to the general fund.
