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SJC-11801

   WALTER E. FERNALD CORPORATION    vs.   THE GOVERNOR & others.1



            Suffolk.    February 5, 2015. - May 29, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.


Corporation, Charitable corporation. Real Property, Ownership.
     Governmental Immunity. Agency, Public agent.



     Civil action commenced in the Land Court Department on
September 8, 2010.

     The case was heard by Keith C. Long, J., on a motion for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Joseph Callanan, Assistant Attorney General (John M.
Donnelly, Assistant Attorney General, with him) for the
defendants.
     Thomas J. Frain (C. Alex Hahn with him) for the plaintiff.


     LENK, J.    The Walter E. Fernald Corporation (corporation),


     1
       Department of Developmental Services and Division of
Capital Asset Management.
                                                                      2


established in 1850, is a charitable organization devoted to

serving the needs of the developmentally disabled.     The

corporation brought an action in the Land Court, seeking, among

other things, a declaration under G. L. c. 231A, § 1

(declaratory judgment act), that it is the owner of certain

parcels of recorded land.    The parcels are located on Norcross

Hill in Templeton (Templeton parcels).     As defendants in its

suit, the corporation named the Governor, the Department of

Developmental Services, and the Division of Capital Asset

Management (collectively, the Commonwealth); the Commonwealth

had asserted ownership of the Templeton parcels by, among other

things, naming several of them in a statute designating an

expanse of land for conservation and public recreational

purposes.   See St. 2002, c. 504.

    A judge of the Land Court denied the Commonwealth's motion

to dismiss the corporation's suit on grounds of sovereign

immunity.   Subsequently, the judge allowed the corporation's

motion for summary judgment.    The judge concluded that there

could be no genuine dispute that, although a school established

by the corporation became an agency of the Commonwealth in the

early Twentieth Century, the corporation itself remained

independent of the Commonwealth, and purchased the Templeton

parcels on its own behalf.     The judge therefore entered judgment

declaring the corporation's ownership of the parcels.
                                                                     3


     We affirm, holding that sovereign immunity does not apply

to the particular type of action brought here and adopting the

same analysis of the facts taken by the judge below.

     1.   Background.   We outline the facts that gave rise to

this litigation, reserving the details for later discussion.

     The corporation was created by a special act of the

Legislature, at a time when no general framework had been

enacted for the establishment of corporations.2    See St. 1850,

c. 150.   The incorporating statute gave the corporation the

name, unfortunate by today's lights, "the Massachusetts School

for Idiotic and Feeble-minded Youth."    St. 1850, c. 150, § 1.

As soon as it was created, the corporation established a school,

also named "the Massachusetts School for Idiotic and Feeble-

minded Youth" (school).   In addition, the corporation devoted

resources to conducting and publishing research.

     Over the years, the corporation changed its name several

times.    In 1883, as the school began to accept adults as well as

children, the corporation took the name "the Massachusetts

School for the Feeble-Minded."    Other name changes were made in

1925 ("the Walter E. Fernald State School") and 1987 ("the

Walter E. Fernald State School Corporation").     The corporation

assumed its current name ("the Walter E. Fernald Corporation")

     2
       See Larcom v. Olin, 160 Mass. 102, 104 (1893) (discussing
subsequent enactment of St. 1851, c. 133).
                                                                      4


in 2006.    Walter E. Fernald, for whom the corporation eventually

was named, served as the school's longtime superintendent in the

early Twentieth Century.

     From the start, the Commonwealth made appropriations to

help support the school, both annually and for specific

purposes.   See, e.g., Resolves 1851, c. 44; St. 1901, c. 303.

In several instances, the Commonwealth provided funding to

purchase land for the school.    See Resolves 1887, c. 64;

Resolves 1897, c. 64.     The corporation purchased the Templeton

parcels with its own money, in a series of transactions

conducted between 1923 and 1969.    This land was used by the

school at various times, particularly for farming.

     In 2002, the Legislature enacted a statute designating

enumerated parcels of land for "conservation and public

recreational purposes."    St. 2002, c. 504.   Five of the six

Templeton parcels were included among those listed in the

statute.3   The corporation brought an action in the Land Court,

seeking, among other things, a declaration that the Templeton

parcels are owned by the corporation.

     Portions of the corporation's complaint were dismissed by a

Land Court judge in an order issued on February 14, 2011.       The


     3
       Although the sixth parcel was not listed in St. 2002,
c. 504, the Walter E. Fernald Corporation (corporation) included
it in its complaint "out of an abundance of caution."
                                                                      5


judge determined, in that decision, that the Governor was not a

necessary or proper party, and that the relief sought by the

corporation other than declaratory relief was not within the

Land Court's jurisdiction.   The judge did not, however, agree

with the Commonwealth that the corporation's suit was barred

altogether by the doctrine of sovereign immunity.

    The corporation moved for summary judgment on the balance

of its complaint.   In another order, issued on December 27,

2013, the Land Court judge allowed the motion and declared the

corporation's ownership of the parcels, free of any claims by

the Commonwealth.   The Commonwealth appealed, arguing that the

judge erred both in his rejection of the Commonwealth's

sovereign immunity defense and in his resolution of the merits.

We transferred the appeal to this court on our own motion.

    2.   Standard of review.    We review a grant of summary

judgment de novo.   See Federal Nat'l Mtge. Ass'n v. Hendricks,

463 Mass. 635, 637 (2012).     We "need not rely on the rationale

cited and 'may consider any ground supporting the judgment.'"

District Attorney for N. Dist. v. School Comm. of Wayland, 455

Mass. 561, 566 (2009), quoting Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991).     Summary judgment is appropriate

if, viewed "in the light most favorable to the nonmoving party,"

Fuller v. First Fin. Ins. Co., 448 Mass. 1, 5 (2006), the

materials properly in the summary judgment record "show that
                                                                     6


there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

    3.   Sovereign immunity.    The doctrine of sovereign immunity

provides that the Commonwealth "cannot be impleaded into its own

courts except with its consent."    Randall v. Haddad, 468 Mass.

347, 354 (2014) (Randall), quoting Woodbridge v. Worcester State

Hosp., 384 Mass. 38, 42 (1981).    Such consent may be provided

"by statute"; it also may be "implicit[], where 'governmental

liability is necessary to effectuate the legislative purpose.'"

Woodward Sch. For Girls, Inc. v. Quincy, 469 Mass. 151, 177

(2014), quoting Todino v. Wellfleet, 448 Mass. 234, 238 (2007).

The doctrine applies "both to money judgments and more generally

to 'interference by the court at the behest of litigants.'"

Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601

(2010), quoting New Hampshire Ins. Guar. Ass'n v. Markem Corp.,

424 Mass. 344, 351 (1997).

    Sovereign immunity originated in the ancient notion that

"[t]he king can do no wrong."     J.A. Sullivan Corp. v.

Commonwealth, 397 Mass. 789, 793 (1986).     Scholars have for many

years "suggested that the doctrine is an anachronism in American

law," given our nation's rejection of the monarchy.    See Morash

& Sons, Inc. v. Commonwealth, 363 Mass. 612, 618 (1973) (Morash

& Sons), citing K.C. Davis, 3 Administrative Law § 25.01, at 435
                                                                    7


(1958).    Many courts and legislatures have agreed; "[t]he courts

in some jurisdictions have abolished the doctrine of

governmental immunity entirely," and "[a]ll other jurisdictions

have eroded the immunity by both statutory exceptions and judge

made exceptions."     Morash & Sons, supra at 618-619, and cases

cited.    See H.J. Alperin, Summary of Basic Law § 17.132, at 870

(4th ed. 2009).

    Our own view has been that "there should be limits to

governmental liability and exceptions to the rule of liability."

Morash & Sons, 363 Mass. at 623.    Yet we also have recognized

that an overly comprehensive rule of sovereign immunity is

"unjust and indefensible as a matter of logic and sound public

policy."   Whitney v. Worcester, 373 Mass. 208, 209 (1977)

(Whitney).   We have explained that sovereign immunity creates an

"inversion of the law," shielding the government from liability

for wrongs that ordinarily would be redressed.     See Morash &

Sons, supra at 621.    Although this "inversion of the law," id.,

is financially beneficial to the general public, "it can hardly

be termed sound public policy that some persons contribute only

tax revenues to the commonweal while from others additional

contribution is exacted in the form of uncompensated injuries."

Whitney, supra at 215.

    We have "long recognized that 'sovereign immunity is a

judicially created common law concept,' . . . and, as such, is
                                                                     8


subject to judicial abrogation or limitation."    Randall, 468

Mass. at 356, quoting Morash & Sons, 363 Mass. at 615, and

citing Whitney, 373 Mass. at 212.    In 1977, we announced our

intention to abrogate sovereign immunity in tort cases.     See

Whitney, supra at 210.    Soon thereafter, the Legislature enacted

the Tort Claims Act, G. L. c. 258, which permits recovery,

subject to certain exceptions and limitations, for torts

committed by the Commonwealth, its subdivisions, and its agents.

No similar legislative action was needed with regard to actions

in contract, since the law has long been settled that "a State

consents to jurisdiction by voluntarily entering into a

contract."   J.A. Sullivan Corp. v. Commonwealth, 397 Mass. at

793.

       Sovereign immunity remains in place in other areas of the

law.   See Randall, 468 Mass. at 357.    We have identified three

"reasons of justice and public policy" (citation and quotation

omitted), id. at 358-359, that, in some contexts, support

continued application of the doctrine:    sovereign immunity may

serve "to protect the discretionary functions of a public

official, . . . or to prevent the unauthorized actions of a

public official, . . . or to shield the public fisc from the

specter of virtually unlimited liability" (citations omitted).

Id., quoting Bates v. Director of the Office of Campaign &

Political Fin., 436 Mass. 144, 174 (2002) (Bates).    We have
                                                                       9


indicated our reluctance to apply the sovereign immunity

doctrine where it would not serve these goals.     See Randall,

supra at 358-359 (purposes of sovereign immunity not served

where, in violation of court order, public employee deposited

funds in State retirement account); Bates, supra (purposes not

served where Legislature failed to appropriate funds to effect

law enacted by ballot measure).    See also Morash & Sons, 363

Mass. at 619.

    The Commonwealth's argument that the surviving portion of

the corporation's complaint is barred by sovereign immunity

rests largely on our one-half century old decision in Executive

Air Serv., Inc. v. Division of Fisheries & Game, 342 Mass. 356

(1961) (Executive Air).    There, the Commonwealth purchased two

parcels of registered land and obtained certificates of title

from the Land Court.    Id. at 357.    The Commonwealth's deeds were

subject to leases held by the plaintiff, which operated an

airport on the land.    Id.   The plaintiff sought a declaratory

judgment invalidating the Commonwealth's deeds and certificates

of title.   Id.   The theory put forth by the plaintiff, so far as

our brief opinion reveals, was that the enactment of the

declaratory judgment act ended the Commonwealth's immunity as to

any suit brought under that act.      See id. at 358.   We rejected

that view, stating that the declaratory judgment act "relates to

procedure," and that, as other jurisdictions have held,
                                                                  10


"sovereign immunity is not affected by declaratory judgment

procedure."   Id. at 357-358.

     We since have reiterated that the Legislature did not

intend to waive sovereign immunity for the universe of actions

brought under the declaratory judgment act.   See, e.g., Sullivan

v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448

Mass. 15, 24 (2006) (declaratory judgment act "includes only a

limited waiver of sovereign immunity").   See also Fathers &

Families, Inc. v. Chief Justice for Admin. & Mgmt. of the Trial

Court, 460 Mass. 508, 509-510 (2011) (judicial department is not

subject to declaratory judgment procedure).   That is to say, we

have continued to maintain that a plaintiff cannot sidestep the

common-law shield of sovereign immunity, to the extent that that

shield remains intact, by using the procedural device of an

action for declaratory judgment.

     We now hold, however, that our common-law sovereign

immunity doctrine does not reach the specific type of suit at

issue here, namely, one in which a plaintiff asserts its own

ownership of specified parcels of recorded land.4   This brand of

suit differs in two important ways from the one addressed in

     4
       As discussed infra, if a plaintiff seeking to vindicate
its ownership of recorded land were to initiate land
registration proceedings, those proceedings would in any event
bind the Commonwealth. See G. L. c. 185, § 45 (judgment of
registration "shall be conclusive upon and against all persons,
including the [C]ommonwealth").
                                                                   11


Executive Air:   the plaintiff here asserts its own ownership of

the land, rather than the ownership of a third party, and the

land at issue here is not registered to the Commonwealth.    See

Executive Air, 342 Mass. at 357.   We do not now reexamine our

conclusion in Executive Air that the suit brought there was

barred by sovereign immunity.

    Our reasons for holding that sovereign immunity does not

encompass actions by which a plaintiff seeks to vindicate its

ownership of specified parcels of recorded land are the

following.   First and foremost, actions of this type do not

implicate the concerns that support the continued application of

sovereign immunity.   Disputes concerning a plaintiff's ownership

of specified parcels of recorded land do not tend to concern

"the discretionary functions of a public official."    Randall,

468 Mass. at 358, quoting Bates, 436 Mass. at 174.    In other

words, these actions are unlikely to be rooted in conduct

"characterized by the high degree of discretion and judgment

involved in weighing alternatives and making choices with

respect to public policy and planning," Whitney, 373 Mass. at

218, where judicial inquiry "might 'jeopardiz(e) the quality and

efficiency of government itself.'"   Id., quoting Spencer v.

General Hosp., 425 F.2d 479, 481 (D.C. Cir. 1969).

    These types of actions also do not typically stem from

"unauthorized actions of a public official," Randall, 468 Mass.
                                                                     12


at 358, quoting Bates, 436 Mass. at 174, namely, attempts to

circumvent the ordinary procedures by which the Commonwealth

expends its funds.    See George A. Fuller Co. v. Commonwealth,

303 Mass. 216, 119-220, 222-224 (1939) (sovereign immunity

successfully asserted to bar building contractor's suit for

payment approved ultra vires by emergency public works

commission).    And the adjudication of a plaintiff's ownership of

specified parcels of recorded land would not subject the public

fisc to a "specter of virtually unlimited liability."     Randall,

supra, quoting Bates, supra.     The Commonwealth's potential

liability in such cases is, rather, limited to losing control of

properties that it does not truly own.     In sum, in the words of

the Supreme Judicial Court of Maine, the type of action we

consider here "implicates none of the modern day considerations

that would justify the State's invocation of sovereign

immunity."     Welch v. State, 853 A.2d 214, 216 (Me. 2004).

    As in Randall, 468 Mass. at 356 n.21, we need not decide

here whether our common-law doctrine of sovereign immunity is

unconstitutional, in whole or in part.    Nevertheless, in drawing

the boundaries of that doctrine, we recognize that it strains

against constitutionally protected values.     Article 1 of the

Massachusetts Declaration of Rights protects "the right of . . .

acquiring, possessing and protecting property."     The Declaration

of Rights provides also that the "officers of government . . .
                                                                  13


are at all times accountable to [the people]," art. 5, and that

"[e]very subject of the commonwealth ought to find a certain

remedy, by having recourse to the laws, for all injuries or

wrongs which he may receive in his person, property, or

character," art. 11.   Sovereign immunity diminishes the degree

to which our laws protect property rights, provide recourse to

legal proceedings, and hold government officers accountable to

the people.5   See Welch v. State, 853 A.2d at 217 (constitutional

protections of property and due process "would lose considerable

meaning if the doctrine of sovereign immunity prohibited the

people from bringing quiet title actions to settle ownership

disputes with the State"); GAR Assocs. III, L.P. v. State ex

rel. Texas Dep't of Transp., 224 S.W.3d 395, 401 (Tex. App.

2006) (inferring waiver of sovereign immunity from takings

provision of Texas Constitution).

     The Commonwealth suggests that its claim to sovereign

immunity in the present circumstances is supported by Block v.

North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273

(1983) (Block), a case concerning a land dispute between a State

and the Federal government.   Under the Federal Quiet Title Act


     5
       As a matter of degree, this is true in the current context
even though, as discussed infra, a plaintiff engaged in a
dispute with the Commonwealth over recorded land could turn also
to the relatively onerous process of land registration. See
note 4, supra.
                                                                  14


of 1972, 28 U.S.C. § 2409a (2012), actions to quiet title

against the United States are subject to various restrictions,

including a twelve-year statute of limitation.    See 28 U.S.C.

§ 2409a(g) (2012).   The United States Supreme Court held in

Block, supra at 281, 284-285, that a plaintiff cannot circumvent

this limitation by directing its suit against Federal officials

rather than the Federal government.     The Commonwealth points out

that the process of land registration, under G. L. c. 185,

§§ 26-45, binds the Commonwealth.     See G. L. c. 185, § 45.

Proposing an analogy to Block, supra, the Commonwealth asserts

that "the availability of a land registration action reinforces

the conclusion that the Commonwealth is immune from [declaratory

judgment act] claims."   This argument admits of at least two

readings, neither of which persuades us that it would be

appropriate for sovereign immunity to apply here.

    First, the Commonwealth may be asserting that the

Legislature did not endeavor, in the declaratory judgment act or

the land registration statute, to waive its common-law sovereign

immunity in cases like the current one.     This premise does not,

however, compel the conclusion that sovereign immunity bars the

corporation's suit, because we have long disclaimed the notion

that the Commonwealth "cannot be sued without legislative

consent."   Morash & Sons, 363 Mass. at 619.    To the contrary, as

we have explained both here and previously, because sovereign
                                                                    15


immunity is "a judicially created common law concept," it is

subject to judicial limitations of the kind we describe today.

See Randall, 468 Mass. at 356, quoting Morash & Sons, supra at

615.    See also Bates, 436 Mass. at 173 n.33; Whitney, 373 Mass.

at 212.

       Alternatively, the Commonwealth may be suggesting that, by

enacting the land registration statute, the Legislature replaced

common-law sovereign immunity with a statutory scheme that

funnels all land disputes involving the Commonwealth to land

registration proceedings.    In this vein, in Block, 461 U.S. at

285-286, the United States Supreme Court described the Federal

Quiet Title Act as "a precisely drawn, detailed statute"

intended by Congress "to provide the exclusive means by which

adverse claimants could challenge the United States' title to

real property."   We do not think that our land registration

statute likewise seeks to "preempt[] more general remedies."

See id. at 285.   The Quiet Title Act was created specifically

for the purpose of defining the parameters within which actions

for title to land may be brought against the United States.     See

id. at 282-284.   By contrast, "[t]he intent of [our land

registration] statute was to simplify land transfer and to

provide bona fide purchasers with conclusiveness of title."

Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 43 (1980).

The rule that a judgment of registration "shall be conclusive
                                                                    16


upon and against all persons, including the [C]ommonwealth,

whether mentioned by name in the complaint, notice or citation,

or included in the general description 'to all whom it may

concern,'" G. L. c. 185, § 45, is one among myriad provisions

devoted to achieving conclusiveness of title.    We discern no

indication that this provision was intended to displace our

traditional doctrine of common-law sovereign immunity.     This

second version of the Commonwealth's argument by analogy from

Block, supra, is therefore equally unavailing.

    Having concluded that sovereign immunity should not bar

actions in which a plaintiff asserts ownership of specified

parcels of recorded land, we are not constrained to defer

"judicial action . . . to provide an inducement to the

Legislature to abrogate the immunity on its own."    See Randall,

468 Mass. at 358, quoting Bates, 436 Mass. at 174.    It is true

that, as discussed supra, we refrained for a time from

abrogating sovereign immunity in the tort law setting, even

after we had determined that the existing doctrine was

"indefensible."   See Morash & Sons, 363 Mass. at 619.    But the

jurisprudential shift that we anticipated in that context was

complex in its doctrinal detail and far-reaching in its

practical effect.   Consequently, we reasoned that "comprehensive

legislative action was preferable to judicial abrogation

followed by an attenuated process of defining the limits of
                                                                     17


governmental liability through case by case adjudication."      See

Whitney, 373 Mass. at 209, and cases cited.     By contrast, where

we have held only that sovereign immunity does not reach a

narrow, well-defined type of suit, we have applied those

holdings without delay.    See Randall, supra; Bates, supra;

Morash & Sons, supra.     We follow the same course today.

    4.    Ownership of the parcels.   We thus arrive at the

merits.   As mentioned, the Templeton parcels were purchased by

the corporation in a series of transactions between 1923 and

1969.   The Commonwealth argues that, by the time of these

transactions, the corporation had become a State agency.      The

Commonwealth itself obtained title to the parcels, in its view,

by virtue of St. 1980, c. 579, § 10, which transferred "[t]itle

to real property held in the name of a state agency . . . to the

name of [the C]ommonwealth."    The Land Court judge disagreed,

determining, based on facts not in genuine dispute, that the

corporation had at all times remained an entity separate from

the Commonwealth.

    The history of the corporation and the school that it

founded is not easy to parse.    As the Commonwealth has conceded,

the corporation and the school came into being separately from

each other.   But the school was essentially the corporation's

raison d'être for many years; it was only natural, therefore,

that the corporation's reports and other records did not in
                                                                    18


every instance draw careful distinctions between the

undertakings and achievements of the school and those of the

corporation itself.   To further confuse matters, for most of the

life of the corporation, the law did not require that a

corporation's name contain a term identifying it as such (as

G. L. c. 156D, § 4.01 [a] [1], does today).    As a result, the

three names borne by the corporation from 1850 through 1987 were

identical to the school's names at the corresponding times.       It

is sometimes difficult to identify whether documents using one

of these names intended to refer to the corporation or to the

school.

     In the face of these challenges, the Land Court judge

conducted a thorough and thoughtful examination of the documents

in the record.   On our independent review of the documents, we

agree with his analysis and conclusions.

     a.   Early years.   There is no dispute that, when the

corporation was originally created, it was an entity independent

of the Commonwealth, with the capacity to acquire and hold its

own property.6   The incorporating statute subjected the


     6
       The Commonwealth asserts that the corporation was
established as a "public charitable corporation." See McDonald
v. Massachusetts Gen. Hosp., 120 Mass. 432, 432 (1876),
overruled on another ground by Colby v. Carney Hosp., 356 Mass.
327 (1968). We need not dwell on this assertion, as it carries
little, if any, significance as to the question whether the
corporation eventually became a State agency.
                                                                      19


corporation to the laws then in effect concerning both

corporations in general and "manufacturing corporations" in

particular.     See St. 1850, c. 150, § 1, referencing Rev. Stat.

cc. 38, 44 (1835).     The provisions concerning "manufacturing

corporations" envisage commercial entities that, among other

things, pay dividends to their stockholders and limit their

liability.     See Rev. Stat. c. 38, §§ 23, 26.   By comparison, at

least some civic-minded corporations founded contemporaneously

were subjected only to the laws concerning corporations in

general.   See, e.g., St. 1850, c. 95 (Charitable Association of

Roxbury Fire Department); St. 1850, c. 166 (Tremont Street

Medical School).     Recognizing the corporation's status as an

independent body, a resolve of the Legislature in 1855 spoke of

it as "[a]n incorporated institution . . . enjoying the

patronage of the Commonwealth."     Resolves 1855, c. 58 (emphasis

added).

    Fifty-nine years after the corporation was created, in

1909, its status as an independent entity was reaffirmed by the

Legislature.    A statute enacted that year overhauled the laws

concerning treatment of the "insane, feeble-minded and

epileptic, and . . . persons addicted to the intemperate use of

narcotics or stimulants."     St. 1909, c. 504, § 1.   Such

individuals were to be cared for by both "public and private

institutions," all of which were to be overseen by the State
                                                                      20


Board of Insanity.    See St. 1909, c. 504, §§ 2, 7.    The chapter

of the statute devoted to the "feeble-minded" addressed two

institutions:   the Massachusetts School for the Feeble-Minded --

then the name of both the corporation and the school -- and the

Wrentham State School.   See St. 1909, c. 504, §§ 59-65.     The

statute also contained a list of "state institutions"; this list

included the Wrentham State School, but not the corporation or

the school.   See St. 1909, c. 504, § 14.

    b.     Later developments.    The Commonwealth argues that the

corporation became a State agency as a result of events that

took place from 1917 through 1921.     This history is as follows.

    The corporation's board of trustees had always been

composed of twelve members.      The trustees' responsibilities

encompassed both the "subscriptions, donations and bequests to

the corporation" and "all the interests and concerns of the

school."   During the first decades of the corporation's

existence, several of the trustees -- originally eight, later

six -- were elected by the corporation's members, i.e., its

general assembly.    The rest of the trustees were appointed by

the Governor and Council.     See Resolves 1851, c. 44;

Resolves 1861, c. 26.

    In 1917, the "anti-aid amendment" to the Massachusetts

Constitution was passed.    This amendment prohibited the

appropriation of public money for "maintaining or aiding any
                                                                  21


school . . . which is not publicly owned and under the exclusive

control, order and superintendence of public officers or public

agents authorized by the Commonwealth."   Art. 46, § 2, as

amended by art. 103 of the Amendments to the Massachusetts

Constitution.   In order for the school to be eligible to receive

public funding after the anti-aid amendment, the trustees

petitioned for legislation providing that each trustee "on the

part of the corporation" would "hold office" as trustee of the

school only after being "confirmed by the [G]overnor and

[C]ouncil."   The Legislature granted the trustees' request.    See

St. 1918, Special Acts c. 119 (1918 statute).

    Subsequently, in 1919, the Legislature established the

Department of Mental Diseases.   See St. 1919, c. 350, § 79.    The

"state institutions" to be controlled by that department were

listed in a provision of the first edition of the General Laws,

enacted in 1921.   This time, the "Massachusetts school for the

feeble-minded," still the name both of the school and of the

corporation, was named as a "state institution."   G. L. c. 123,

§ 25 (1921 ed.).

    As the Land Court judge perceived, the developments of 1917

through 1921, while modifying the management of the school, did

not diminish the status of the corporation as an independent

entity.   To begin with, it is true that the 1918 statute granted

the Governor and Council the power to approve the corporation's
                                                                  22


trustees before they could serve the school.   But the

corporation and the trustees had long recognized the trustees'

separate functions in service of the corporation, on the one

hand, and the school, on the other.   The corporation's bylaws of

1907, for instance, drew detailed distinctions between the

powers and duties of the trustees concerning the corporation and

those concerning the school (also referred to as the

"institution"), stating that the trustees

         "shall have power to take any measures which they may
    deem expedient for encouraging subscriptions, donations and
    bequests to the corporation; to take charge of all the
    interests and concerns of the school; to enter into and
    bind the corporation by such compacts and engagements as
    they may deem advantageous . . . . [A]t every annual
    meeting they shall make a report in writing on the accounts
    of the treasurer of the corporation and of the treasurer of
    the institution, and of the general state of the
    institution . . . and an inventory of all the real and
    personal estate of the corporation."

(Emphasis added.)   The 1918 statute did not purport to disturb

the role of the trustees in service of the corporation.   Indeed,

it was only the school, rather than the corporation, that needed

to maintain eligibility for funding from the Commonwealth in the

wake of the anti-aid amendment; while the Legislature's

appropriations had always been dedicated to the needs of the

school, the corporation, as it stated in a 1917 report, had its

own "private funds . . . consist[ing] of carefully invested sums

received from time to time from friends of the school."
                                                                  23


    Similarly, the historical record reveals, particularly in

the corporation's annual reports, that the "Massachusetts school

for the feeble-minded" named as a "state institution" in 1921

was the school, not the corporation.   The corporation and the

school had had separate treasurers since 1907.   From 1917

onward, each of the corporation's annual reports, among those in

the summary judgment record, contains an accounting prepared by

the treasurer of the corporation, listing the corporation's

income, expenditures, and assets; and a separate accounting

prepared by the treasurer of the school.   The school, but not

the corporation, was reported to receive much of its income from

the treasury of the Commonwealth.   This entire system of

accounting would have been senseless if the corporation had by

then become a State agency.

    The substance of the trustees' reports, too, details their

sometimes discrete decision-making concerning the finances of

the corporation, alongside their supervision of the school.     For

instance, in a 1929 report, in addition to recounting news of

the school, the trustees wrote that they had "passed a

resolution that it is their policy to increase the principal of

the Corporation Funds . . . having due regard to the emergency

needs of the Institution, to the end that the income of the

Funds may be available for research purposes."
                                                                  24


    There is no question that the Commonwealth was aware of the

corporation's understanding that its corporate status and

finances were separate from those of the school; each of the

trustees' annual reports was addressed "To the Corporation, His

Excellency the Governor, the Legislature, and the Department of

Mental Diseases."

    Thus, the corporation remained an entity independent of the

Commonwealth notwithstanding the tumult that 1917 to 1921

brought to the school.   After 1921, the administrative

structures of both the school and the corporation remained

unchanged until 1987.    Control of the school was then

transferred to the Department of Mental Retardation, and the

Governor was charged with appointing all of the school's

trustees.   See St. 1986, c. 599, § 9.   That the corporation

remained independent of the Commonwealth throughout the period

from 1921 to 1987 is illustrated by the following incident.     In

1978, after the last of the Templeton transactions had taken

place, an attorney requested an opinion from the Attorney

General as to whether his law firm permissibly could perform

services in connection with two contracts that were planned to

be made between the corporation and agencies of the

Commonwealth.   See Attorney General Conflict of Interest Opinion
                                                                    25


No. 829 (1978).7   These contracts would not have been envisioned

if the Commonwealth had then regarded the corporation as a State

agency.

     The history and character of the corporation are materially

different from those of corporations that our past decisions

have characterized as agencies of the Commonwealth.    See, e.g.,

Trustees of Worcester State Hosp. v. Governor, 395 Mass. 377,

380-381 (1985) (discussing hospital established as State

entity).   See St. 1832, c. 163, and St. 1833, c. 95); Spence v.

Boston Edison Co., 390 Mass. 604, 607-608 (1983) (discussing

housing authority, defined by G. L. c. 121B, § 3, as "[a] public

body politic and corporate," notwithstanding certain

"characteristics" of private corporation); Benton v. Trustees of

City Hosp. of Boston, 140 Mass. 13, 17 (1885) (discussing city

hospital).8   We agree with the Land Court judge, in short, that


     7
       The attorney was a trustee of the corporation and of the
school. On the facts described to him, the Attorney General
concluded that the law firm was permitted to provide the
services in question, because the corporation was "not a 'state
agency,'" and its anticipated contracts were "not within [the
attorney's] official responsibility as a trustee of [the
school]."
     8
       We decline the Commonwealth's invitation to address the
conditions that may cause a charitable corporation to be viewed
as a State agency. Suffice it to say that, as already
discussed, although the school established by the corporation
was supported largely by Commonwealth funds and was subject to
some control by the Governor, the same was not true of the
corporation.
                                                                  26


the summary judgment record does not support the Commonwealth's

theory that the corporation, at some point, became a State

agency.

     c.   Purchases.   The Templeton parcels were last conveyed in

the following transactions:   (a) in 1923, the "Cowick" parcel

was granted, by three separate deeds, to the "Massachusetts

School for the Feeble-Minded, a corporation"; (b) in 1929, the

"Dyer" parcel was granted to the "Walter E. Fernald State

School, a Massachusetts corporation"; (c) that same year, the

"Thompson" parcel was granted to the "Commonwealth of

Massachusetts";9 (d) also that same year, the "Norcross" parcel

was granted to the "Walter E. Fernald State School"; (e) in

1939, the "Gardner Savings Bank" parcel was granted to the

"Walter E. Fernald State School"; and (f) in 1969, the




     9
       The Thompson parcel was not named in the corporation's
complaint. The Land Court judge explained, however, that both
parties had addressed that parcel in their summary judgment
briefs, and that the Commonwealth had reproduced the deed to the
parcel in its record appendix. The judge therefore determined
that the parcel presented an "issue[] not raised by the
pleadings [but] tried by express or implied consent of the
parties," which, by rule, is to be "treated in all respects as
if [it] had been raised in the pleadings." Mass. R. Civ. P.
15 (b), 365 Mass. 761 (1974). We discern no error in that
decision.
                                                                   27


"Doucette" parcel was granted to the "Walter E. Fernald State

School, a Massachusetts corporation."10

     Each of these parcels was purchased with the corporation's

own funds.   The trustees were openly cognizant of the fact that

they were using the corporation's funds rather than drawing on

those of the Commonwealth.   When they contemplated purchasing

the Norcross parcel, for instance, the trustees wrote that "due

to the biennial session of the Legislature and our small

appropriation the State could do nothing," and that, therefore,

"it was voted to have the Corporation acquire said land."

     After the parcels were purchased, they were listed in the

corporation's reports as assets of the corporation, not the

school.   By contrast, when, on earlier occasions, the

Legislature had provided funds for the purpose of purchasing

land for the school, the appropriating enactments stated that

the land would be purchased "in the name and on behalf of the

Commonwealth," Resolves 1897, c. 64, or that the deed to the

land would be "deliver[ed] to the treasurer of the

Commonwealth," St. 1897, c. 98, § 2.

     10
       The deeds to these six parcels are recorded in the
Worcester County registry of deeds at book 2289, pages 336-337
(three deeds to Cowick parcel); book 2487, page 188 (Dyer
parcel); book 2487, page 59 (Thompson parcel); book 2499, page
475 (Norcross parcel); book 2746, page 399 (Gardner Savings Bank
parcel); and book 4952, page 389 (Doucette parcel). The
corporation, in its brief, mistakenly counts seven parcels, for
reasons that are apparent but unimportant here.
                                                                    28


    For purposes of our analysis, the deeds to the parcels fall

into three categories.    First, the deeds to the Cowick, Dyer,

and Doucette parcels explicitly name the "corporation" as

grantee.    Given our conclusion that the corporation was not a

State agency, there remains no question that these deeds bestow

title on the corporation only.

    The second category of deeds contains those to the Norcross

parcel and to the Gardner Savings Bank parcel.    These deeds did

not state specifically that the grantee was a "corporation"; but

the grantee named in them, the "Walter E. Fernald State School,"

was the corporation's formal name when the deeds were made.       The

meaning of a deed "is to be ascertained from the words

used . . . construed when necessary in the light of the

attendant circumstances."    Patterson v. Paul, 448 Mass. 658, 665

(2007), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179

(1998).    The circumstances surrounding these deeds reveal that

the corporation was the intended grantee.    The funds used for

these purchases belonged to the corporation; the Commonwealth

did not reimburse the corporation for the purchases; the

corporation never expressed an intent to make a gift of the land

to the Commonwealth; and, after each parcel was conveyed, it was

listed in the corporation's reports as an asset of the

corporation.
                                                                  29


     The same circumstances attended the third category of

deeds, which includes only the deed to the Thompson parcel.

Although that deed names the Commonwealth as grantee, the

Thompson parcel, too, was purchased by the corporation with its

own funds, and it, too, thereafter was counted among the

corporation's assets in the corporation's annual reports.    In

the absence of any suggestion that the corporation intended to

gift this land to the Commonwealth, we agree with the Land Court

judge that the deed's reference to the Commonwealth as grantee

can only have been inadvertent.11

                                    Judgment affirmed.




     11
       The Commonwealth argues that, even if we determine that
the corporation holds title to all of the parcels, further
proceedings are necessary to determine the character of that
title, and specifically whether the corporation holds the
parcels in trust for the Commonwealth. We deem the argument
waived, as it was not made below. See Weiler v. PortfolioScope,
Inc., 469 Mass. 75, 86 (2014), citing Canton v. Commissioner of
Mass. Highway Dep't, 455 Mass. 783, 795 n.18 (2010). Although
the case was decided on the corporation's motion for "partial"
summary judgment, that motion was partial -- as the Land Court
judge explained -- only insofar as portions of the complaint had
been dismissed on the defendants' motion.
