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Massachusetts Eminent Domain Laws

Massachusetts Eminent Domain Laws can be found in Chapter 79 of laws of Massachusetts.  Pursuant to ALM GL ch. 79 § 1, the taking of real estate or of any interest therein by right of eminent domain may be effected in the following manner.  A board of officers upon whom authority to take real estate by eminent domain on behalf of any body politic or corporate has been conferred by law, having first complied with all the preliminary requirements prescribed by law, may adopt an order of taking.

The order of taking should contain a description of the land taken, sufficiently accurate for identification, and should state the interest therein taken and the purpose for which such property is taken[i].  In case such taking is for an improvement for which betterments may be assessed, it should state whether betterments are to be assessed therefor.

In case there are trees upon the land taken, or structures affixed thereto, the order of taking should state whether the same are to be included in the taking, and if they are not so included, should allow the owner a reasonable time after the date of the order or after entry or possession to remove the same, to be specified in the order.

ALM GL ch. 79 § 2 provides that a taking of land by eminent domain by or on behalf of the commonwealth should be made by the governor and council, a taking by or on behalf of a county by the county commissioners of such county, a taking by or on behalf of a city by the aldermen, a taking by or on behalf of a town by the selectmen, a taking by or on behalf of a district by its prudential committee, and a taking by or on behalf of a private corporation by its board of directors.

Pursuant to ALM GL ch. 79 § 3, the board of officers by whom an order of taking has been adopted should within thirty days thereafter cause a copy thereof to be recorded in the registry of deeds of every county or district in which the property taken or any of it lies.

If the person in possession of property refuses to permit the body politic or corporate by which the taking was made to enter thereon and take possession thereof or to exercise its rights under the taking after thirty days’ notice in writing, the board of officers having the direction and control of the public improvement in connection with which the taking was made, may issue its warrant to the sheriff of the county in which the property is situated[ii].

The sheriff of the county may direct an entry on the property and to take possession thereof or of the easement therein which has been taken, on behalf of said body politic or corporate, and such sheriff or his/her deputy should forthwith execute said warrant using such force as s/he may deem necessary.

If land of a registered owner, or any right or interest therein, is taken by eminent domain, the board of officers by whom the taking is made should file for registration in the proper registry district, a description of the registered land so taken, giving the name of each owner thereof, referring by number and place of registration in the registration book to each certificate of title, and stating what estate or interest in the land is taken, and for what purpose[iii].

ALM GL ch. 79, § 6 provides that when a taking is made on behalf of a body politic or corporate other than a corporation described in section seven, the board of officers by whom the order of taking is adopted should, at the time of the adoption thereof, award the damages sustained by every person in his/her property by reason of such taking.

Compliance with the above provisions may be enforced against any person having a duty of compliance therewith by writ of mandamus issued upon the petition of any person adversely affected by noncompliance therewith[iv].

Pursuant to ALM GL ch. 79, § 10, 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 s/he has suffered an injury for which s/he is entitled to compensation, the damages therefor may be recovered.

The damages for property taken should be fixed at the value thereof before the recording of the order of taking, and in case only part of a parcel of land is taken, damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made should be included and benefit accruing to the part not taken should be deducted[v].

A person entitled to an award of damages or the body politic or corporate bound to pay the same, whether a petition has or has not been filed or award made may petition for the assessment of such damages to the superior court of the county in which the property taken or injured was situated[vi].

If a person who is entitled to petition for an award or assessment of his/her damages dies without filing such petition within the time limited therefor, his/her executor or administrator may within one year from the date of appointment file such petition in the same manner and with the same effect as if filed by the deceased in his/her lifetime[vii].

ALM GL ch. 79 § 37 provides that damages should bear interest from the date on which the right to damages vested until paid, except that an award should not bear interest after it is payable unless the body politic or corporate liable therefor fails upon demand to pay the same to the person entitled thereto.

If the agents of the U.S. and the persons owning or interested in any property which is required for any purposes for which the U.S. is authorized to take property by eminent domain cannot agree upon the price to be paid for the interest of such persons therein, the U.S. may file a petition in the superior court for the county in which such property lies, praying for the condemnation of such property[viii].

[i] ALM GL ch. 79, § 1.

[ii] ALM GL ch. 79, § 3.

[iii] ALM GL ch. 79, § 4.

[iv] ALM GL ch. 79, § 10A.

[v] ALM GL ch. 79, § 12.

[vi] ALM GL ch. 79, § 14.

[vii] ALM GL ch. 79, § 21.

[viii] ALM GL ch. 79, § 44.

Inside Massachusetts Eminent Domain Laws