Eminent Domain is a hostile legal act: Swampscott (MA) Reporter, 5/12/05

Letter to the Editor

By David Dishman
I have read Warrant Article 25 in which the Rail Trail Implementation Committee (via a 2/3 Town Meeting vote) is seeking to take the entire abandoned Marblehead-Swampscott rail corridor by an eminent domain "land taking."

I wish to comment here from the legal perspective. To begin with, National Grid does not own the entire corridor in fee simple, and they have stated so in public at a selectmen's meeting on Jan 18, 2005. The fact is that for a significant length of the right of way, the railroad (and then the utility) only had an easement for layout of the track. Thus, if Town Meeting passes this measure, the town must seek to take land not only from National Grid, but also from private property owners, who have right to title.

Please make no mistake about this ...despite what the editor of this paper claims, the hostile taking of land involves eminent domain process. Eminent domain is a hostile legal act and must, by definition, involve an expenditure of significant legal resources and time. Some of these activities are outlined below.

1. Town counsel (and their legal team) must research the situation and understand the complicated issues of land conveyance that dates back to antiquity; this involves researching all affected properties and their titles (at the Salem Registry and perhaps at Land Court and National Archives) back to the late 1800s (when the railroad was built across the old estates).
   
2. Two professional appraisals of the value of each of these parcels of land must be made and submitted for study by attorneys representing the abutters with right to title and National Grid; these appraisals must be fair and reasonable and must take into account the true value of these properties. Any attempt to undervalue these parcels of land, as has been suggested by some proponents, would be subject to challenge in court.
   
3. All 150+ properties (from Burrill Street to Bellevue Ave) must be surveyed professionally by a vendor approved by the town to delineate the exact location of a neighbor's property as it abuts the right of way.
   
4. Finally, and most importantly, the town taxpayers, not the Committee and particularly, not its leadership, must bear the cost of litigation and any awarded damages. Remember, National Grid is on the record as saying that if the town comes after this land by eminent domain, they will protect their assets and sue for damages.

Let's not be naive here... this will be a nasty, risky and expensive process. Swampscott needs to prioritize any increase in its already significant tax burdens. I believe our citizens would rather see the essential subjects of art, music and gym remain in our schools, rather than support a few lawyers who would profit from this endeavor.

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Swampscott Reporter: www2.townonline.com/swampscott