Prior Public Use Doctrine Does Not Apply to Public Lands Sold or Leased for

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The Massachusetts Supreme Judicial Court (“SJC”) has held that the Prior Public Use Doctrine, which operates to prevent public lands acquired for a particular use from being diverted to another inconsistent public use without explicit legislative authorization, does not apply to public land diverted to an inconsistent private use in Town of Sudbury v. MBTA et al.

In 1977 the Massachusetts Bay Transportation Authority (“MBTA”) acquired title to a right of way by eminent domain for purposes of expanding its mass transit network. The MBTA did not expand its mass transit network over the right of way, which became used for walking, hiking, and general wildlife habitat over the years, although the existing tracks remained. In 2017, the MBTA reached an agreement to lease an easement to Eversource Energy to place an underground electrical transmission line below the right of way, several miles of which ran through the town of Sudbury. The MBTA also reached an agreement with the Department of Conservation and Recreation to expand its Mass. Central Rail Trail system to include the right of way.

The town of Sudbury sued to prevent the lease to Eversource, arguing that either (1) the lease to Eversource constituted an inconsistent public use without legislative authorization or (2) the Prior Public Use Doctrine should apply to subsequent private use of public lands. The SJC rejected both arguments.

In order to invoke the Prior Public Use Doctrine, the town needed to establish all four elements of the doctrine: (1) a subsequent public use; (2) previous devotion of the property to only “one public use”; (3) an inconsistent subsequent use; and (4) a lack of legislative authorization. The SJC found that Eversource’s use of the property for an underground transmission line did not qualify as a subsequent public use. Eversource is a private, publicly owned corporation. While Eversource’s proposed use would provide a public benefit, and while Eversource’s proposed use was subject to public regulatory oversight, neither of those factors transformed a private company’s use of land into a public use.

Going further, the SJC declined to extend the Prior Public Use Doctrine to subsequent private uses of public lands. The doctrine was meant to avoid competing public uses, multiple governmental entities with the power of eminent domain engaging in a never-ending cycle of takings against each other. Further, to extend the doctrine to private use would call into question numerous easements for utilities and future developments between public and private entities, which have been “blossoming in the Commonwealth.” Accordingly, the SJC declined to extend the doctrine, and Sudbury’s complaint was properly dismissed.

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