There are two companion statutes that affect title regarding railroads:
G.L.c. 40, §54A (passed 1973). This statute governs and restricts building on lands previously used as a railroad right-of-way or “property appurtenant thereto.” Our court has held that the subject of this statute is excluded from the coverage of the policy. See Somerset Savings Bank v. Chicago Title Insurance Company, 420 Mass. 422, 649 N.E.2d 1123 (1995) . That statute provides as follows:
If a city or town or any other person purchases any lands formerly used as a railroad right‑of‑way or any property appurtenant thereto formerly used by any railroad company in the commonwealth, no permit to build a structure of any kind on land so purchased shall be issued by any city or town in the commonwealth without first obtaining, after public hearing, the consent in writing to the issuance of such permit from the secretary of the executive office of transportation and construction. If said secretary does not consent to the issuance of such permit, the owner of the land may recover from the commonwealth such damages as would be awarded under the provisions of chapter seventy-nine.
With respect to this statute, which governs and places a pre-condition on the issuance of building permits, G.L.c. 40A, §7 should be taken into consideration. That statute “protects” structures that are erected without the benefit of a permit if they have been ion place for more than ten years. It would seem that if a permit was issued without compliance with G.L.c. 40, §54A, it would be the same as if no permit was issued and that G.L.c. 40A, §7 might cure the situation.
Another statute, G.L.c. 161C, §7 (passed 1975) also involves railroads, but this statute governs not building on railroad lands, but rather their acquisition. That statute provides as follows:
- To the extent not inconsistent with federal law, no railroad company which conducts or has conducted operations within the commonwealth shall sell, transfer or otherwise dispose of railroad rights‑of‑way or related facilities without first offering such rights‑of‑way or facilities for sale, transfer or disposition to either the executive office, acting on behalf of the commonwealth, or such other department, authority, agency, or political subdivision of the commonwealth as may be designated by the executive office for the purpose of any such sale, transfer or disposition; provided, that such sale, transfer or disposition may be made by the railroad company to a party other than the executive office or its designee, but only if (i) the executive office or its designee has notified the railroad company in writing of its rejection of such offer; or (ii) ninety calendar days have elapsed from the date on which said offer or a copy of such offer, as provided in the second paragraph, is made to the executive office.
- Said railroad company shall make such offer in writing and shall send such offer by certified mail to the executive office or to its designee. In the event that such offer is made to a designee of the executive office, a notarized copy of such offer shall be sent by certified mail to the executive office. Any such offer shall include the price at which said company proposes to offer such rights‑of‑way or facilities to the commonwealth, and such other terms or conditions which said company proposed to include as part of such sale, transfer or disposition. The executive office or its designee shall notify in writing and by certified mail said railroad company of its acceptance or rejection of such offer within ninety calendar days of such offer, and in the event that the designee of the executive office sends such notice, said designee shall also send a notarized copy of such notice to the executive office. The executive office is hereby authorized to notify any person that the conditions provided in clauses (i) and (ii) of paragraph (a) have been satisfied and that the commonwealth no longer has the option to acquire the rights‑of‑way or facilities as provided in said paragraph. Any such notice shall be binding on the commonwealth.
In no event shall said railroad company offer to sell, transfer, or otherwise dispose of railroad rights‑of‑way or facilities to any person on terms or conditions more favorable to said person than those offered to the commonwealth.
The statute does not apply to MBTA rights of way; the statute defines “rail rights-of-way” as lands “other than those owned , operated and maintained by the Massachusetts Bay Transportation Authority.” (Emphasis added.)
1 This case, decided by the Supreme Judicial Court, involved an appeal from the Appeals Court. Somerset Savings Bank v. Chicago Title Insurance Co., 37 Mass.App.Ct. 82, 636 N.E.2d 1358 (1994 ) and essentially overruled the former opinion. [Back to Text]