The Appeals Court’s recent decision in 1148 Daviol Street LLC v. Mechanic’s Mill One LLC will be of interest to adverse possession buffs.
The issue on appeal was whether the plaintiff’s adverse possession claim started running during a 14-year period when the defendant’s property was owned by the City of Fall River. The defendant argued that the claim could not have commenced during that period because of M.G.L. 260, § 31, which codifies the ancient common law principle that “time does not run against the sovereign” (“nullum tempus occurrit regi” for you Classics majors). In 1987 the Legislature revised the statute to expand the categories of public property that can be recovered at any time (i.e. without regard to claims of adverse possession or prescriptive use) to include land held for various recreational and environmental uses as well as for “other public purpose[s].” The defendant reasoned that, since its land had been held by Fall River for a public purpose, and no adverse possession claim could have been asserted against the city, those 14 years of municipal ownership should be excluded from the 20-year period required to prove adverse possession.
The Appeals Court brushed the defendant’s argument aside with “little difficulty.” The court stated, “[n]othing in the statutory language immunizes [public lands] from having an adverse possession claim begin to accrue during the period of public ownership.” The court noted that, while the 1987 amendments broadened the protections afforded to public lands, “nothing in the statute evinces an intent that such protections also benefit a subsequent private owner.” The court further noted that M.G.L. 260, § 21, the statute of limitations governing private actions to recover land, was not changed in 1987, and includes no exception for land formerly held by the Commonwealth or its political subdivisions. The coup de grâce for the defendant’s position was the court’s observation that the public policy considerations underlying the 1987 amendments to G.L. c. 260, § 31 “no longer come into play once the land in question is transferred to a private party.”
Though it’s almost 300 years old (in America), the adverse possession doctrine continues to develop before our eyes.