A super short one (a hair over 4 pages) from the Massachusetts Supreme Judicial Court.
In Gentili v. Town of Sturbridge, No. SJC-12810 (Feb. 24, 2020), the court made short work of a property owner’s claim that an earlier Land Court verdict concluding that the town had obtained a prescriptive easement to discharge storm water on the property was a taking requiring compensation. The Land Court concluded that the fact that the town had been discharging the water since 1987 meant that it had gained an easement to do so (think public adverse possession). Instead of appealing the Land Court’s conclusion about the prescriptive easement, the owners sued in state court for compensation.
No deal, held the SJC. The Land Court’s order recognizing the easement wasn’t a statutory “order of taking.” Nor did the easement itself amount to a taking — even though a discharge of water on someone’s land is obviously a physical invasion — because the owners didn’t object to the invasion for a long time (the prescriptive period under Mass law). In short, the owner didn’t have “property” that was taken. See slip op. at 3 (“It is this failure [to object], rather than any action by the town, that led to the trust’s loss of property rights.”).
Inherent in a government’s taking of private property is a right in the property that the government has commandeered; there can be no “taking” if there is no right. In the case of a prescriptive easement, the rights the property owner once had are extinguished to the extent of the easement. Such is the circumstance here. The trust had no basis on which to claim a taking by the town because the town acquired the right to use the property (to discharge storm water onto it) via the prescriptive easement, and the trust lost its right to the property in that regard.
Slip op. at 4.
You snooze, you lose: no property, no taking.
Gentili v. Town of Sturbridge, No. SJC-12810 (Mass. Feb. 24, 2020)