COTUIT PARTNERS LIMITED PARTNERSHIP v. DONALD K. EMERY

Introduction

At issue in this case is the meaning and validity of two easements described in recorded deeds in the parties’ chains of title. The plaintiff, Cotuit Partners Limited Partnership, owns the property at 55 Putnam Avenue in Barnstable (the “Cotuit Property” or “Lot B”). [Note 1] The defendant, Donald K. Emery, owns the abutting property at 59 Putnam Avenue (the “Emery Property” or “Lot C”). [Note 2] Both parties’ properties were once part of a larger parcel that was divided over the years. In a 1952 deed, an easement was granted over a right of way “for all purposes for which easements of way are used in this vicinity, including the right to travel thereon on foot or in vehicles, and the further right to install, maintain and replace poles, wires, pipes and conduits on and under said way for the transmission of water, electricity, gas and telephone services for use on Lot B” (the “1952 easement”). Deed from Edward J. L. Ropes to Harriet Ropes Cabot (Nov. 19, 1952), recorded at the Barnstable County Registry of Deeds in Book 828, Page 433 (hereinafter, the “1952 Deed”). Similarly, in a 2000 deed, an easement was reserved over a driveway “for all purposes ways are used in the Town of Barnstable including passing by vehicle or on foot, and to install, maintain, replace and use over or under such driveway poles, wires, pipes and conduits for the transmission of utilities . . .” (the “2000 easement”). Quitclaim Deed from Sarah Ropes Hinkle to Manijeh M. Emery, Trustee of MADE Bayside Nominee Trust at 7 (April 7, 2000), recorded at the Barnstable County Registry of Deeds in Book 12934, Page 41 (the hereinafter, the “2000 Deed”).

The plaintiff contends that these easements benefit the Cotuit Property and permit it to install poles and above-ground wires for electricity in the easement area. Alternatively, the plaintiff contends that it has the right to install above-ground utilities in this area pursuant to G.L. c. 187, §5. [Note 3] The defendant disagrees, claiming that at least a portion of the easement has been abandoned, has terminated via the doctrine of merger, and has terminated under a theory of adverse use of the easement by the defendant and his predecessors in title. The defendant also argues that G.L. c. 187, § 5 does not apply in this case. The plaintiff thus filed this action, seeking to quiet title (G.L. c. 240, § 1) and seeking a declaratory judgment (G.L. c. 231A, § 1) “that it may continue to enjoy its deeded right to a 16-foot wide easement sufficient for both vehicular traffic on the Driveway and adjacent utility poles and wires” and “that it enjoys a statutory right to install utility poles and wires along the Driveway.” Complaint at 6-7 (Jan. 7, 2008).

Both parties have filed motions for summary judgment. For the reasons set forth below, I find and rule that the 2000 easement is valid and permits the plaintiff to use the easement for all purposes a way is used and permits the plaintiff to install electrical and other utilities either above or below ground, in an area as wide as necessary (up to sixteen feet wide) for safe and adequate installation. In addition, I find and rule that G.L. c. 187, § 5 also permits the plaintiff to install such utilities above or below ground in that area. Accordingly, I ALLOW the plaintiff’s motion for summary judgment and DENY the defendant’s cross-motion for summary judgment.

Facts

Summary judgment is appropriately entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following material facts are undisputed.

Both the plaintiff’s and defendant’s property were once part of a larger parcel that was owned by siblings Harriet Ropes Cabot (“Cabot”) and Edward J. L. Ropes (“Ropes”). Cabot and Ropes each owned a one-half interest in the larger parcel. In 1952, Cabot and Ropes divided that parcel into three parcels – Lot A, Lot B, and the northern parcel. See Plan of Land at Cotuit in the Town of Barnstable (May 25, 1951 and revised April 3, 1952), recorded at the Barnstable County Registry of Deeds in Book 107, Page 7 (the northern parcel is identified as “Alice L. Ropes”) (the “1952 Plan”). Cabot conveyed her one-half interest in Lot A to Ropes and Ropes conveyed his one-half interest in Lot B to Cabot. They each retained an undivided one-half interest in the northern parcel. As part of Ropes’ conveyance of his interest to Cabot, the 1952 Deed included an easement, described as follows:

There is also granted herewith to the grantee [Cabot] a right or easement of way over the right of way sixteen (16) feet wide as shown on said plan, crossing a portion of lot A, as shown on plan hereinbefore described, to be used with others now or hereafter similarly entitled and for all purposes for which easements of way are used in this vicinity, including the right to travel thereon on foot or in vehicles, and the further right to install, maintain and replace poles, wires, pipes and conduits on and under said way for the transmission of water, electricity, gas and telephone services for use on Lot B.

1952 Deed at 434. As depicted on the 1952 Plan, only a portion of the right of way crosses over the northwest portion of Lot A. The vast majority of the way crosses the northern parcel, running, in general, parallel to the northern boundary of Lots A and B.

In 1976, Ropes gifted his undivided, one-half interest in the northern parcel to his three daughters – Sarah R. Hinkle, Georgina L. Ropes, and Ann G. Ropes (the “Ropes sisters”). Quitclaim Deed from Edward J. L. Ropes to Sarah R. Hinkle, Georgina L. Ropes, and Ann G. Ropes (Dec. 29, 1976), recorded at the Barnstable County Registry of Deeds in Book 2450, Page 44. In 1986, Cabot also gifted her one-half interest in the northern parcel to the Ropes sisters. Quitclaim Deed from Harriet Ropes Cabot to Sarah Ropes Hinkle, Georgina Lowell Ropes, and Ann Ropes Flather (Dec. 26, 1986), recorded at the Barnstable County Registry of Deeds in Book 5479, Page 207 (hereinafter, the “1986 Deed”). That gift was subject to an easement for the benefit of Cabot’s remaining land – Lot B: “This deed is delivered together with the benefit of and subject to rights, easements and restrictions of record, and subject also to an easement for the benefit of my remaining land to maintain and replace, as needed, the utility lines which are now located on the granted premises and which service my remaining land.” Id. at 207-08. In 1988, all of Ropes’ property in Barnstable passed to the Ropes sisters by the terms of his will, which, pertinent to this case, was Lot A. Will of Edward J. L. Ropes (Nov. 14, 1975). As a result, in 1988, the Ropes sisters owned all of the northern parcel and Lot A.

In 2000, the Ropes sisters deeded a portion of the northern parcel and a portion of Lot A to Manijeh M. Emery, Trustee of MADE Bayside Nominee Trust. 2000 Deed at 1. The property deeded was shown as Lot C on a 2000 plan of land entitled “Plan of Land.” Plan of Land (March 17, 2000 and revised March 26, 2000), recorded at the Barnstable County Registry of Deeds in Book 556, Page 20 (the “2000 Plan”). Lot C is now owned by the defendant, individually (the “Emery Property” or “Lot C”). As part of that conveyance, the 2000 Deed contained the following language:

Said Lot C is hereby conveyed subject to an easement granted to the owner of Lot A and her successors and assigns from time to time owning Lot A as shown on the 2000 Plan to use a portion of the driveway running along or across that portion of Lot C from the easterly edge of said Lot A to Putnam Avenue as more particularly described in said Dannhauser Deed.

There is also hereby reserved to the owners, their successors and assigns from time to time owning the Cabot Land and the Retained Land, respectively, together with any others now entitled to such rights, an easement over that portion of the driveway running along or across that portion of Lot C from the westerly edge of the Adjoining Land to Putnam Avenue (a) to use the same for all purposes ways are used in the Town of Barnstable including passing by vehicle or on foot, and to install, maintain, replace and use over or under such driveway poles, wires, pipes and conduits for the transmission of utilities, and (b) to maintain, replace and use all existing poles, wires, pipes and conduits now serving the Adjoining Land substantially in such locations as the same may presently be, including the electric lines as shown on said 2000 Plan. The aforesaid access and electric easements shall be appurtenant to and run with and benefit the Cabot Land.

2000 Deed at 6-7 (The “Retained Land” is the “retained land” of the Ropes sisters, which is Lot A. 2000 Deed at 1. The “Cabot Land” is “the land shown on the 200 Plan owned by Harriet R. Cabot [Lot B], her successors and assigns.” Id. at 6. Together, “the Retained Land [Lot A] and the Cabot Land [Lot B] shall mean the ‘Adjoining Land.’” Id.).

In 2005, the executor of Cabot’s will and the Ropes sisters granted Lot B to Hooper’s Landing One, LLC. Fiduciary Deed (Sept. 20, 2005), recorded at the Barnstable County Registry of Deeds in Book 20288, Page 137. That conveyance was “subject to and with the benefit of all rights of way, easements, restrictions, rights, reservations and agreements of record insofar as the same are now in force and applicable.” Id. In 2007, Hooper’s Landing One, LLC conveyed Lot B to the plaintiff, also “subject to and with the benefit of all rights of way, easements, restrictions, rights, reservations and agreements or record insofar as the same are now in force and applicable.” Quitclaim Deed (Jan. 4, 2007), recorded at the Barnstable County Registry of Deeds in Book 21680, Page 332. That same day, Hooper’s Landing Two, LLC conveyed to Cotuit a parcel of land adjacent to, and north of, Lot B, which is depicted as Lot D on the 2000 Plan. Quitclaim Deed (Jan. 4, 2007), recorded at the Barnstable County Registry of Deeds in Book 21680, Page 336.

The plaintiff wants to erect poles and above-ground wires for electrical and other utilities along the driveway depicted in the 2000 plan so that it can further develop the Cotuit Property. The defendant denies that the plaintiff has the right to install above-ground utilities along the 1952 or 2000 easement. He instead argues that the plaintiff is limited to using the easements, if they are still in effect, for access, for the existing electric service described in the 2000 Deed, [Note 4] or for the installation of underground utilities under the way.

Other pertinent facts are included in the analysis section below.

The Standard for Interpreting an Easement

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condominium v. Waterfront Parking, 407 Mass. 123 , 133 (1990) [hereinafter “Commercial Wharf”]. “It is ‘a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor.’” Id. “An easement is by definition a limited, nonpossessory interest in realty” that “is created to serve a particular objective.” M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004); see also Patterson v. Paul, 448 Mass. 658 , 663 (2007). An “easement undoubtedly interferes, as a practical matter, with the uses the [servient estate owner] could otherwise make of its property. But that characteristic is inherent in the nature of an easement.” Commercial Wharf, 407 Mass. at 133.

An affirmative easement is to be interpreted in the same manner as deeds. Patterson, 448 Mass. at 665. “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Id.; see also Commercial Wharf, 407 Mass. at 131 (words of a deed are “interpreted in the light of the material circumstances and pertinent facts known to [the parties] at the time the deed was executed”); Murphy v. Olsen, 63 Mass. App. Ct. 417 , 422 (2005) (quoting Queler v. Skowron, 438 Mass. 304 , 311 (2002)).

“[I]n all cases where the court is considering whether additional rights are incidental or reasonably necessary to the enjoyment of an easement by grant, careful drafting would have avoided the problem and rendered unnecessary the determination of what additional rights, if any, are included in the grant.” Murphy, 63 Mass. App. Ct. at 422. However, “when an easement or other property right is created, every right necessary for its enjoyment is included by implication.” Id. at 423 (quoting Anderson De Vries, 326 Mass. 127 , 134 (1950)); see also Commercial Wharf, 407 Mass. at 138; Highland Club of W. Roxbury v. John Hancock Mut. Life, 327 Mass. 711 , 714 (1951). The extent of these rights, however, is still governed by the easement language and the intent of the parties. Commercial Wharf, 438 Mass. at 138.

Both servient and dominant estate owners have rights to use the easement land. The servient estate owner can use his or her land in any manner, so long as it is “consistent with the easement of another.” Highland Club of W. Roxbury, 327 Mass. at 714. “[B]ut the corollary of that rule is that he may not use his land in a manner inconsistent with the easement.” Id. at 715; see also Patterson, 448 Mass. at 666; Commercial Wharf, 407 Mass. at 134; Texon, Inc. v. Holyoke Machine Co., 8 Mass. App. Ct. 363 , 365-66 (1979). An affirmative easement “obligates the possessor [of the servient land] not to interfere with the uses authorized by the easement.” Patterson, 448 Mass. at 665. The dominant estate owner “has a right to enter the servient land . . . to perform such acts as are reasonably necessary for such use and enjoyment.” Id. (citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 292 Mass. 332 , 336 (1933)). This “right of use arising out of its easement is superior to the [servient estate owner’s] property interest, and the [servient estate] must avoid activities which are inconsistent with the [dominant estate’s] use of the easement.” Texon, Inc., 8 Mass. App. Ct. at 366. If the servient estate owner engages in such activities, that “interference . . . amounts to an infringement of a valuable property interest.” Id.

Analysis

Cotuit’s Rights under the 1952 and 2000 Easements

The plaintiff alleges that it has an easement over the defendant’s property by way of the 1952 and 2000 deeds. “[W]hen the enjoyment of a particular privilege may reasonably be referred to a deed, it shall be considered as derived from such deed, and then the just construction of the deed will fix the rights of the parties.” Atkins v. Bordman, 2 Met. 457 , 476, 43 Mass. 457 , 476 (1841). Therefore, I must construe what, if any, rights the plaintiff and defendant enjoy from these two deeds and whether those rights still exist today.

As described above, the 1952 Deed from Ropes to Cabot granted to Cabot “a right or easement of way over the right of way sixteen (16) feet wide as shown on [the 1952 Plan], crossing a portion of said lot A . . . to be used . . . for all purposes for which easements of way are used in this vicinity, including the right to travel thereon on foot or in vehicles, and the further right to install, maintain and replace poles, wires, pipes and conduits on and under said way for the transmission of . . . electricity . . . for use on Lot B.” 1952 Deed at 2. Only a small portion of the way crosses Lot A in its northwestern corner. The majority of the way crosses over the northern parcel, which, at that time, was jointly owned by Ropes and Cabot. Since Cabot owned a one-half interest in the northern parcel, she had access along the entire way from Putnam Avenue to Lot B. As a result, Cabot had the right to use the way for access to Lot B and also had the right to install poles and wires over the portion of the way that crosses Lot A and, as a joint owner of the northern parcel, over the portion of the way that crosses the northern parcel in order to provide electricity to Lot B.

In 1986, however, Cabot granted her one-half interest in the northern parcel to the Ropes sisters. In doing so, she no longer had an explicit right to use the way to access Lot B. In conveying the northern parcel, the deed stated that “[t]his deed is delivered together with the benefit of and subject to rights, easements and restrictions of record, and subject also to an easement for the benefit of my remaining land to maintain and replace, as needed, the utility lines which are now located on the granted premises and which service my remaining land.” 1986 Deed at 207-08. So far as the record shows, there were no easements of record pertaining to the driveway over the northern parcel. [Note 5] Indeed, even the plaintiff concedes this point. Opposition to Defendant’s Cross-Motion for Summary Judgment and Reply in Support of Plaintiff’s Motion for Summary Judgment at 4 (May 12, 2008) (“If Emery’s argument is simply that the 1952 Easement extends only a portion of the distance from Putnam Avenue to the Cotuit Parcel, Cotuit Partners does not dispute it.”). Presumably, Cabot continued to use the driveway with implicit permission or based upon the assumption that the language in the 1986 Deed was sufficient to convey an easement over the northern parcel.

On the record, there also does not appear to be an extension of the utility easement language contained in the 1952 Deed over the northern parcel. Again, the plaintiff concedes this. Id. The 1986 Deed did nothing to change this fact and only provides a utility easement for those utility lines that were existing at the time of the conveyance. As a result, it appears from the record that the 1952 easement language pertaining to utilities could not be carried out – the owner of Lot B would have required a utility easement over the northern parcel in order to extend the utilities from Putnam Avenue, over Lot A, over the northern parcel, and ending at Lot B. This suggests that the 1952 utility easement may have been extinguished since it could no longer, by itself, accomplish its purpose of providing electricity to Lot B. [Note 6] See Comeau v. Manzelli, 344 Mass. 375 , 379-82 (1962).

Regardless of whether the easement in the 1952 Deed is still in effect and valid, the 2000 Deed also reserved an easement over Lot C (the Emery Property) from Lot B to Putnam Avenue “(a) . . . for all purposes ways are used in the Town of Barnstable including passing by vehicle or on foot, and to install, maintain, replace and use over or under such driveway poles, wires, pipes and conduits for the transmission of utilities, and (b) to maintain, replace and use all existing poles, wires, pipes and conduits now serving the Adjoining Land substantially in such locations as the same may presently be, including the electric lines as shown on said 2000 Plan.” 2000 Deed at 7. This language is clear and unequivocal. Subsection (a) of the easement permits the plaintiff not only to use the way for ingress and egress over the Emery Property, but also to install poles and wires for utilities over the way.

The defendant attempts to avoid the consequences of this clear language under several theories, none of which are persuasive. First, the defendant argues that the utility easement was abandoned. “Whether there is an abandonment is ordinarily a question of intention. Nonuse does not of itself produce an abandonment no matter how long continued.” Delconte v. Salloum, 336 Mass. 184 , 188 (1957) (internal quotations and citations omitted); see also First National Bank of Boston v. Konner, 373 Mass. 463 , 466 (1977) (citing Desotell v. Szczygiel, 338 Mass. 153 , 158-59 (1958)) (hereinafter, “First National”). “It is also necessary to show ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.’” First National, 373 Mass. at 466-67 (quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927)). Here, the defendant contends that since there are bushes, hedges, a large American elm tree, and a garage near the boundary of the right of way, “there is a clear intent by the predecessors in title to Cotuit Partners not to utilize either the 1952 Easement or the 2000 Easement for anything other than access and egress or any other utilities which presently exist under the way.” Defendant’s Brief in Opposition to Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment at 11 (April 24, 2008) (hereinafter, the “Defendant’s Summary Judgment Brief”) (emphasis in original).

However, this argument ignores the fact that in the 2000 Deed that conveyed the defendant’s property to him, the Ropes sisters included clear language for new utilities, which allowed the owner of Lot B (at that time, the Ropes sisters) “to install, maintain, replace and use over or under such driveway poles, wires, pipes and conduits for the transmission of utilities.” [Note 7] 2000 Deed at 7. It also included an easement “to maintain, replace and use all existing poles, wires, pipes and conduits now serving the Adjoining Land substantially in such locations as the same may presently be, including the electric lines as shown on said 2000 Plan.” Id. If the Ropes sisters intended to limit the use of the easement to access and presently existing utilities, the language regarding new utilities would not have been included in the 2000 Deed. The deed is clear on its face – it reserves an easement for access, for the installation and maintenance of new utilities, and for the maintenance of existing utilities. It thus shows that the parties (the Ropes sisters and the trust, of which the defendant’s spouse was a trustee) intended to permit the owner of Lot B to, among other uses, install new utilities “over or under” the way on the Emery Property. The fact that the plaintiff has not attempted until today to use the easement to construct poles and wires does not show any intention by the plaintiff to abandon such right. See Delconte, 336 Mass. at 188 (“Nonuse does not of itself produce an abandonment no matter how long continued.”). Nothing in the record shows that the plaintiff intended to abandon the right to construct poles and wires for utilities and certainly the existence of trees, shrubs, and a garage near the way does not suggest otherwise. See First National, 373 Mass. at 467 (citing Desotell). The plaintiff therefore has such a right. This conclusion is consistent with “the terms of the grant” and “give[s] effect to the intent of the parties.” Commercial Wharf, 407 Mass. at 131.

Second, the defendant contends that all or a portion of the 2000 easement was extinguished by prescription. Specifically, the defendant states that “[g]iven the fact that the bushes, hedge rows, trees and buildings existed prior to the 2000 Deed,” at least a portion of the easement “may have been extinguished by prescription.” Defendant’s Summary Judgment Brief at 12 (emphasis added). Even if the bushes, hedge rows, trees and building are uses “so inconsistent with the [plaintiff’s] easement that it worked an extinguishment of it,” [Note 8] Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 423 (1979), the 2000 easement has only existed for eight years. As a result, the defendant does not meet the requirement that his alleged adverse use existed for twenty years.

Third and finally, the defendant appeals to general principles of equity and argues that since the utilities could be placed underground and since the surrounding parcels are subject to a conservation restriction and view easements, the plaintiff should be prohibited from constructing above-ground poles and wires. Even if it may be better for the character of the neighborhood to install the utilities underground (a question I need not, and do not, decide), neither the law nor the language of the easement requires such a result, and the law prohibits me from imposing it. See T.F. v. B.L.; 442 Mass. 522 , 533-34 (2004) (equity “follows the law”; it “is not an all-purpose judicial tool by which the ‘right thing to do’ can be fashioned into a legal obligation”). Indeed, the defendant’s deed specifically imposes a restrictive covenant over a portion of the Emery Property for conservation purposes in order to preserve the scenic and historical rural character of the area, while specifically allowing the installation of above-ground utilities. 2000 Deed at 1, 7. The Ropes sisters therefore were aware of how to restrict certain uses in order to preserve the character of the area and could similarly have restricted utilities to underground installation. They, however, did not. With such clear language, I cannot resort to the principles of equity to prevent the plaintiff from exercising his easement rights. This may “interfere[], as a practical matter, with the uses the [defendant] could otherwise make of its property. But that characteristic is inherent in the nature of an easement.” Commercial Wharf, 407 Mass. at 133.

Since I have found that the 2000 easement is still in effect and permits the plaintiff to install poles and wires above the easement, I must determine the width of the easement. It is well established that in granting an easement, “it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted.” Atkins, 2 Met. at 463, 43 Mass. at 463; see also Commercial Wharf, 407 Mass. at 138. “When no dimensions of a way are expressed, but the object is expressed, the dimensions must be inferred to be such as are reasonably sufficient for the accomplishment of that object.” Id. at 468.

The 2000 Deed was silent as to the width of the easement, but referred to the 2000 Plan, which identifies the driveway as “drive 8’ wide.” Therefore, that plan may be used “to aid in the description and identification of the easement.” Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). The parties have also conceded that, in its present condition, the driveway is approximately ten feet wide. [Note 9] I note that although the plan identifies the drive as eight feet wide and the parties concede it is now ten feet wide, this does not necessarily set the width of the easement. That width can only be determined by looking at the purposes of the easement, which are twofold: ingress and egress, and above- or below-ground utilities.

Eight to ten feet is likely a sufficient width for ingress and egress. [Note 10] However, the plaintiff contends that eight feet (or ten feet) is not sufficient to accomplish the purpose of installing and maintaining poles and above-ground wires for electricity. In support of this contention, the plaintiff submitted the affidavit of Thomas E. Converse, a professional engineer with thirty years of experience in the electrical industry, including seventeen years experience with NSTAR (the electric utility company that services the area). Mr. Converse states “that an area with a minimum width of 16 feet is necessary to permit overhead electrical access to the Property along the Driveway” since NSTAR requires a ten-foot-wide strip adjacent to utility lines for access and the National Electric Safety Code requires “7.5 feet of horizontal clearance from a primary conductor to buildings without wind.” Aff. of Thomas E. Converse, P.E. at 2-3 (March 13, 2008). Since the defendant’s garage is located adjacent to the driveway, one of the poles must be installed approximately two feet from the garage, which will be six feet from the driveway. Id. at 3. Therefore, the plaintiff contends that the easement must be at least sixteen feet wide to accommodate the defendant’s garage.

Certainly, the defendant may use his property in any manner that is not inconsistent with the plaintiff’s rights in the easement, which would (for the purposes of installing the poles and wires) include maintaining the existing garage at its present location if the poles and wires can otherwise be accommodated. M.P.M. Builders, LLC, 442 Mass. at 91; Atkins, 2 Met. at 471, 43 Mass. at 471. However, the defendant “may not use his land in a way that will interfere with the easement owner’s right of use.” Texon, Inc., 8 Mass. App. Ct. at 365. Here, the defendant not only aims to maintain the garage in its present location, but also wants to prohibit the plaintiff from installing an electricity pole six feet from the driveway. The plaintiff contends that this location is only necessary to accommodate the defendant’s garage. As a result, it is unreasonable for the defendant to prohibit the plaintiff from installing the pole in such a location. See Shaprio v. Burton, 23 Mass. App. Ct. 327 , 334 (1987) (both the plaintiff’s and defendant’s “uses of the land are governed by equitable principles, namely, what is reasonable in the exercise of their respective privileges. The benefits and convenience both to the defendant and the plaintiff must be taken into account.”); Texon, Inc., 8 Mass. App. Ct. at 366 (“The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights. An interference with an easement holder’s use of the land amounts to an infringement of a valuable property interest. . . . [The plaintiff’s] right of use arising out of its easement is superior to [the defendant’s] property interest, and [the defendant] must avoid activities which are inconsistent with [the plaintiff’s] use of the easement.”).

The 2000 easement must be interpreted in a manner that “every right necessary for its enjoyment is included by implication.” Id. Murphy, 63 Mass. App. Ct. at 423 (quoting Anderson De Vries, 326 Mass. 127 , 134 (1950)); see also Commercial Wharf, 407 Mass. at 138; Highland Club of W. Roxbury, 327 Mass. at 714. The easement must therefore be wide enough to permit ingress, egress, other uses that ways are used for, and for the installation of poles and above-ground wires for electricity, which necessarily must be to the side of the traveled portion of the easement so as not to impede ingress and egress. If the garage stays, the easement shall be wide enough to accommodate poles and wires going around it. Based upon the foregoing, I thus find that the easement is, at least, eight feet wide, and up to sixteen feet wide, if and as necessary to install electric poles safely and in accordance with all relevant rules and regulations.

Cotuit’s Rights under G.L. c. 187, § 5

The plaintiff also contends that it has a right to install poles and wires pursuant to G.L. c. 187, § 5. This statutory provision states that

[t]he owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways; and, provided further, that such placement, installation, or construction is done in accordance with regulations, plans and practices of the utility company which is to provide the gas, electricity, or telephone service, and the appropriate cities, towns, districts, or water companies which provide the water service . . . . Neither the person installing or repairing public utility facilities, nor such facilities, nor the gas, electricity, telephone or water service transmitted shall be deemed to constitute a trespass upon said way or ways.

The plaintiff contends that this language provides it with the statutory right to install the poles and wires along the way in order to provide electricity to its property. I agree.

The 2000 Deed clearly states that the successor owners of the Cabot Land (Lot B) have an easement over the driveway that runs across Lot C for all purposes, “including passing by vehicle or on foot.” 2000 Deed at 7. Lot B abuts the driveway referred to in the 2000 Deed and the plaintiff clearly has the right to ingress and egress over such way. [Note 11] As a result, the plaintiff clearly has the right to install any “appurtenances necessary for the transmission of . . . electricity.” G.L. c. 187, § 5; Barlow v. Chongris & Sons, Inc., 38 Mass. App. Ct. 297 , (1995) (a driveway easement was a private way and, therefore, the defendant had the right to install utilities in the easement); Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 , 215 (1980) (the defendant enjoyed an easement for ingress and egress over a private way; therefore, the statute applied).

The plaintiff’s rights under the statute are not unlimited however. The statute requires that the placement of “facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways.” G.L. c. 187, § 5. As a result, the plaintiff must install the poles and wires in such a manner as to not interfere with the use of the way for other purposes, such as for ingress and egress. In addition, the poles and wires must be installed “in accordance with regulations, plans and practices of the utility company.” Id. The plaintiff has stated that it will comply with NSTAR’s requirements and the poles and wires will not obstruct the use of the way. As a result, the plaintiff has the right to construct the poles and wires “in, on, along, under and upon” the way in a manner that meets the requirements of G.L. c. 187, § 5.

Conclusion

Based upon the foregoing, I find and rule that the plaintiff enjoys an easement for ingress and egress and for utilities as set forth in the 2000 Deed. Pursuant to its easement rights, the plaintiff has the right to install poles and wires for electricity and other utilities aboveground. The width of the easement shall be sufficient to enable the plaintiff to do so safely and as required by any relevant rules and regulations (up to sixteen feet). Further, the plaintiff has the right to install such poles and wires pursuant to G.L. c. 187, § 5. The plaintiff’s motion for summary judgment is thus ALLOWED and the defendant’s cross-motion for summary judgment is DENIED. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 25 July 2008