COTUIT PARTNERS LIMITED PARTNERSHIP v. DONALD K. EMERY

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”). The defendant, Donald K. Emery, owns the abutting property at 59 Putnam Avenue. 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. 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).

For the reasons set forth in the court’s Memorandum and Order Allowing Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Cross-Motion for Summary Judgment of this date, 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 above or below ground. In addition, I find and rule that G.L. c. 187, § 5 also permits the plaintiff to install such utilities. Accordingly, I ALLOW the plaintiff’s motion for summary judgment and DENY the defendant’s cross-motion for summary judgment. The easement width is whatever is necessary (up to sixteen feet) to install the poles and wires adequately and safely.

SO ORDERED.

By the court (Long, J.)