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A Taking in Pais: Recovery Under M.G.L. c. 79, § 10

Though most people are familiar with the taking of land by eminent domain-that is, through the proper statutory procedure to acquire land for a public purpose-it is likely that few have heard of a "taking in pais".

A taking in pais (pronounced "in pay" or "in pays") occurs when the Commonwealth or a municipality physically appropriates private land by acting under statutory authority but without any formal act (i.e. a vote or order of a duly authorized board).

"A taking in pais is a taking with no formal act other than the physical appropriation of the property. It is possible only when authorized by statute. The act appropriating the land must purport to be performed under the statute and must show with reasonable definiteness what is taken." Triangle Center, Inc. v. Dept. of Pub. Works, 383 Mass. 858, 861 (1992). One example would be where a municipality, having the statutory right to install sewer pipes, does so across private land without having first obtained a formal vote or order to do so.

A landowner may seek to recover monetary damages for a taking in pais under M.G.L. c. 79, § 10, which provides, in relevant part, as follows:

When the real estate of any person has been taken for the public use or has been damaged by the construction, maintenance, operation, alteration, repair or discontinuance of a public improvement or has been entered for a public purpose, but such taking, entry or damage was not effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, or when the personal property of any person has been damaged, seized, destroyed or used for a public purpose, and by such taking, damage, entry, seizure, destruction or use he has suffered an injury for which he is entitled to compensation, the damages therefor may be recovered under this chapter. If the injury was caused by or on behalf of the commonwealth or of a county, city, town or district, the officer or board of officers under whose direction or control the injury was caused shall award the damages upon the petition of any person entitled thereto. . . .

The statute also provides an avenue for relief for similar kinds of injury caused by railroad corporations and private corporations other than a railroad.

Depending on the nature of the injury to land, M.G.L. c. 79, § 10, provides different benchmarks for determining when the petition seeking damages must be filed with the board and how damages shall be assessed:

For a specific (singular) taking, entry, seizure or other act causing destruction or damage to the land, or depriving the landowner from using his property either permanently or for a definite period,

· the right to bring a petition vests as of the date of that act;

· the petition must be filed with the board within one (1) year thereafter; and

· damages shall be assessed as of the date of such act.

For all other acts (i.e. ongoing construction or improvement projects),

· the right to bring a petition vests as of the date of completion of the project;

· the petition must be filed within one (1) year after completion of such work; and

· damages shall be assessed as of the date when the property was first injuriously affected.

In those situations where the landowner misses the one-year filing deadline-or decides to forego petitioning the municipal board directly-he still has another opportunity to obtain damages. A few Massachusetts trial court cases confirm that even if the landowner fails to file his M.G.L. c. 79, § 10, petition with the board within one year, he can alternatively seek recovery in Superior Court under M.G.L. c. 79, § 14, for an assessment of damages, so long as the complaint is filed within three (3) years after the town's specific appropriation of private land or completion of the project or construction causing injury to such land.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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