by Cesareo Contreras A legal dispute between the town and the Massachusetts Bay Transportation Authority and Eversource Energy has reached the state Supreme Judicial Court. At issue is an MBTA plan to lease an inactive rail corridor to Eversource to accommodate the utility’s proposed underground high-voltage transmission line project. Town officials, citing a common law known as the prior public use doctrine, argue the MBTA needs to request special authorization from the state before leasing the land to the utility for that purpose. The doctrine notes that “public land devoted to one public use cannot be diverted to another, inconsistent public use without plain and explicit legislation authorizing the diversion,” according to the Boston College Environmental Affairs Law Review. The MBTA acquired the Central Massachusetts Railroad corridor through a 1976 indenture agreement with the Trustees of the Boston and Maine Corp. and by a 1977 eminent domain taking. The town asserts the MBTA is violating eminent domain and indenture agreements that state the land is to be used solely for railroad transportation purposes. Last October, the state Land Court dismissed the complaint, ruling the doctrine did not apply because the MBTA was leasing the land to a private entity for a private use. The town appealed, and in May the Supreme Judicial Court took it on. Lawyers for the town argue that it “would not make sense” for the law to prohibit an inconsistent public use but would not apply for an inconsistent private use. “This would defeat the purpose of the prior public use doctrine, which is to protect public land acquired for a particular public use from being converted to an inconsistent use without the required legislative awareness and specific authorization,” they wrote. That Eversource is a private entity is irrelevant, the town argues, because the high-voltage transmission line will serve a public use, be paid for by ratepayers and is required to have a “public benefit” to be approved by the Energy Facilities Siting Board, an independent state board that reviews utility energy projects for approval. Furthermore, George X. Pucci, an attorney from Boston-based KP Law, said the issue isn’t whether Eversource is private or public, but whether the MBTA is leasing the land for a different public purpose than what was originally authorized. Earlier this year, the court invited experts on the subject to submit documentation to help answer questions as to whether the doctrine applied in this case and if the court should extend the prior public use doctrine to include “barring inconsistent private use.” Briefs were filed by numerous organizations, including commercial real estate development association NAIOP Massachusetts and National Grid. Both of those parties noted that if the doctrine was expanded, it would cause significant development and electrical reliability issues because developers would be required to get state approval every time a government body sells a public piece of land for private use. Pucci disagreed. He argued that private entities seeking to buy public property already need approval from residents at gatherings such as Town Meeting. “This is a very limited circumstance where the prior public use doctrine comes into play with all these other legislative requirements,” he said. The MBTA, represented by Thaddeus Heuer of Boston-based Foley Hoag LLP, argues the town lacks sufficient evidence for why it should have legal standing on the matter because it does not have rights to the property and will not incur damage from the lease transaction alone. Heuer also noted that the doctrine has a very limited scope, and legal precedence has shown that private use does not apply. “Contrary to Sudbury’s assertion, it does ‘make sense’ that the prior public use doctrine is intentionally limited only to subsequent incontinent public uses,” Heuer wrote. “As a threshold matter, the Land Court astutely noted that the sea change Sudbury seeks would wreak havoc on the routine functioning of state and municipal government, given that transfers of easements and other property rights from public bodies to private actors happen with extraordinary frequency.” Heuer also argued that the MBTA’s authority to grant easements to generate income trumps the prior public use doctrine, which he argues was created only to resolve disputes between government entities or state-charted public service corporations that have conflicting interest on a particular property owned by the state. Eversource has agreed to pay the MBTA $9.3 million over 20 years for use of the land, and said it would fund $2 million to $4 million worth of environmental cleanup if any contamination is found. The court is now deliberating the case. It is estimated to take 130 days to come to a decision, according to a court official. Eversource’s proposal is also being reviewed by the Energy Facilities Siting Board.