In Town of Sudbury v. Mass. Bay Transp. Auth., 485 Mass. 774, 152 N.E.3d 1101 (2020), the Massachusetts Supreme Judicial Court considered whether the scope of the doctrine of Prior Public Use extended to, and consequently barred, the diversion of public land devoted to a specific public use to another inconsistent – but private – use.

The Town of Sudbury sought to prevent the MBTA from entering into an option agreement with NSTAR Electric Company d/b/a Eversource Energy for an easement to install an electric transmission line underneath an historic railroad Right-of-Way, without the requisite legislative authority.

Under the doctrine of Prior Public Use, public lands acquired for and devoted to one public use may not be diverted to another inconsistent public use without “plain and explicit legislation.” There is a long history of passage of such bills, which need to identify clearly the land involved, the current use, the new use, and the intent to authorize the change.

Helpfully, in this new case, the Supreme Judicial Court laid out the pleading requirements for a case brought under the Prior Public Use doctrine: a public use, a previous devotion of the property to only one public use, an inconsistent subsequent use by a public entity, and a lack of legislative authorization.

Declining to expand the doctrine of Prior Public Use to subsequent private uses by private entities, the Court reasoned that the purpose of the doctrine is “to resolve conflicts over the use of public lands between State-chartered corporations, municipalities, and other governmental agencies that might claim authority to use another government entity’s land or to take the land by eminent domain, in a potentially never-ending cycle of takings.”

Extending the doctrine to inconsistent private uses, the Court indicated, would be a sweeping change that would not advance the purposes of the doctrine, would create widespread uncertainty concerning numerous existing holdings of private land that were transferred by public entities, and “would render future developments between public and private entities…prohibitively expensive and time-consuming to undertake.”