BALBINO WHITE v. AMIFF HOUSING ASSOCIATES, LP

Balbino White (“Plaintiff” or “White”) filed this complaint on June 24, 2002 seeking to establish an easement over a portion of land (hereinafter the “Right of Way”) owned by Amiff Housing Associates, LP (“Defendant” or “Amiff”) for access to his land at 86R American Legion Highway (hereinafter “the Rear Parcel”) from American Legion Highway (f/k/a Canterbury Street). White also seeks to permanently enjoin Defendant from interfering with the use of the claimed Right of Way and an order compelling Defendant to remove the fence, chains and other structures blocking the passageway to the Rear Parcel. A decision sketch is attached hereto depicting the locus, the Defendant’s property, the Rear Parcel, the paved Right of Way, and the existing barriers.

Defendant claims that Plaintiff does not have an established easement by necessity or by prescription. In addition, Defendant argues that Plaintiff has failed to establish an easement by grant and that any alleged right to an easement has been extinguished by both abandonment and prescription.

The parties in this case own adjoining parcels of land located on American Legion Highway in Boston, Massachusetts. White owns the Rear Parcel, or 86R American Legion Highway, and Amiff owns 82 and 86 American Legion Highway (hereinafter “the Front Parcels”). Two apartment buildings, one at each address, are currently located on the Front Parcels. The Rear Parcel does not contain a residential building and is currently being used by White as a storage lot for masonry brick and related construction materials. The Right of Way is a paved strip of land approximately nine (9) feet wide running in between the two apartment buildings and connecting the Rear Parcel to American Legion Highway. The Rear Parcel and the Front Parcels were at one time held in common ownership.

This dispute concerns the means of access to the Rear Parcel. Since purchasing the Rear Parcel in 1995, White has never been able to use the Right of Way to access the Rear Parcel. At various points in time, Defendant Amiff has erected and maintained three (3) barriers running across the disputed area: a lockable chain barrier at the American Legion Highway end of the disputed area, a low chain link fence at the back side of the apartment buildings, and a high chain link fence at the boundary line between the Rear Parcel and Front Parcels.

White acquired his title to the Rear Parcel on August 8, 1995; however, an easement concerning the Right of Way over the Front Parcels was not expressly mentioned in White’s deed. White argues that an appurtenant easement over Amiff’s property was created by express grant and is included within his chain of title. White also argues that the Defendant has failed to bear its burden of proof in showing that White intended to abandon the easement. In addition, White contends that Defendant has failed to show twenty years of open, notorious and hostile prescriptive use of the easement to extinguish the easement by prescription.

Defendant Amiff contends that no easement was created by express grant. It argues that Plaintiff relies on language within a mortgage that references a deed that does not reference an easement to the Right of Way. In addition, Amiff argues that any easement that may have been created has been extinguished by abandonment. Finally, Amiff asserts that it has terminated any easement rights through prescriptive use of the Right of Way for over twenty years.

The filing of Plaintiff’s Complaint was triggered when White attempted to gain access to the Rear Parcel via the Right of Way sometime between 1995, when he purchased the Rear Parcel, and 2002, when he filed this Complaint. Defendant argues that it never knew of any attempt to use the Right of Way until the filing of the Complaint. Since White has been unable to use the Right of Way, he accesses the Rear Parcel through another abutting property that he also owns.

On August 9, 2002, Plaintiff filed an amended complaint. An Alternative Dispute Resolution Conference was scheduled for April 9, 2003 and then rescheduled for and held on April 30, 2003. The case was referred to MCA Dispute Resolution, Inc. on June 16, 2003, and after attempts to resolve this matter failed, a trial was scheduled to start on March 19, 2007. Trial commenced as scheduled on March 19, 2007 and concluded on March 20, 2007, after which this court and counsel made a site visit to the subject property on April 6, 2007. An Order Settling the Record was issued by this court (Trombly, J.) on February 29, 2008 and post trial memoranda were filed by Defendant on April 14, 2008 and by Plaintiff on April 17, 2008.

Four (4) witnesses testified at the trial, and one (1) chalk and thirty-nine (39) exhibits were admitted into evidence. All testimony was reported. In the interest of having a complete record, this court (Trombly, J.) accepted three (3) additional exhibits: 3A, 3B and 3C. All forty-two (42) exhibits are incorporated herein for the purposes of any appeal. Based on the testimony, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Balbino White is the sole owner of the property located at 86R American Legion Highway (“Rear Parcel”), Boston, pursuant to a deed from Michael Serrechia and Anne Marie Serrechia, dated August 8, 1995 and recorded in Book 19953, Page 329. [Note 1]

2. Amiff Housing Associates, LP is the owner of the properties located at 86 and 82 American Legion Highway (“Front Parcels”), pursuant to a deed from Morris Reef and Raymond Reef, dated June 10, 1971 and recorded in Book 8450, Page 214.

3. Amiff is a Massachusetts Limited Partnership and its general partner is Marcott Builders Corporation (“Marcott”).

4. Wingate Management Company, Inc. (“Wingate”) is the property manager of the Front Parcels and several individuals serve as officers and directors for both Wingate and Marcott.

5. Wingate is not a named Defendant in the amended complaint. [Note 2]

6. As of January 31, 1928, the Front Parcels and the Rear Parcel were held in common ownership by Herman Barron.

Title History to the Front Parcels

7. The Front Parcels were previously known as Lot A and Lot B as shown on the Plan by E.A. Moulton, Surveyor (the “Moulton Plan”), dated July 10, 1926, recorded in Book 4974, Page 124. The plan shows the location of the purported easement across Lot A.

8. On January 31, 1928, Herman B. Barron mortgaged Lot A, subject to an easement to access the Rear Parcel, to the Pentucket Savings Bank, recorded in Book 4974, Page 125.

9. On February 19, 1931, Herman B. Barron conveyed Lot A by deed, subject to the Pentucket Savings Bank mortgage, to Herman B. Barron, Arthur Levenson and Jacob M. Levenson, as Trustees of the Cantwell Realty Trust, recorded in Book 5244, Page 67.

10. By deed dated June 10, 1971, Morris Reef and Raymond Reef, individually and as Trustees of the Alban Realty Trust, conveyed Lot A and Lot B to Amiff Housing Associates.

Title History to the Rear Parcel

11. The Rear Parcel was previously known as Lot C as shown on the Moulton Plan, recorded in Book 4974, Page 124.

12. On August 8, 1925, Mary McDonald conveyed Lot C to Herman B. Barron, by deed, recorded in Book 4712, Page 428.

13. On January 31, 1928, Herman B. Barron mortgaged the Rear Parcel, with the benefit of an easement as indicated on the Moulton Plan, to the Liberty Trust Company, recorded in Book 4974, Page 124.

14. By deed dated February 19, 1931 and recorded in Book 5244, Page 67, Herman B. Barron conveyed the Rear Parcel, subject to the Liberty Trust Mortgage, to Herman B. Barron, Arthur Levenson and Jacob M. Levenson, as Trustees of the Cantwell Realty Trust.

15. On December 3, 1942, Arthur Levenson and Jacob M. Levenson, Herman B. Barron, as Trustees of the Cantwell Realty Trust, conveyed the Rear Parcel to Celia Barron, by deed recorded in Book 6018, Page 285.

16. By deed dated September 2, 1954 and recorded in Book 7000, Page 85, Celia Barron conveyed the Rear Parcel to Elsie Levenson and Dora A. Levenson.

17. On March 20, 1959, Elsie Levenson and Dora A. Levenson conveyed the Rear Parcel to Aaron Wedgewood, by deed recorded in Book 7352, Page 511.

18. On January 31, 1980, the City of Boston took title to the Rear Parcel by virtue of a final decree by this court in a tax lien case against Aaron Wedgewood.

19. By deed dated October 29, 1984 and recorded in Book 11225, Page 33, the City of Boston conveyed the Rear Parcel to Michael Serrechia and Anne Marie Serrechia. The deed did not mention an express easement.

20. On August 8, 1995, Michael Serrechia and Anne Marie Serrechia conveyed the Rear Parcel to Balbino White, by deed recorded in Book 19953, Page 329. The deed did not mention an express easement.

The Dispute

21. Wingate manages the two residential buildings on the Front Parcels, both of which are owned by Amiff. The disputed easement is a paved strip of land approximately nine (9) feet wide that runs between the two buildings.

22. At some point after acquiring the property in 1971, Amiff erected and maintained three (3) barriers across the disputed easement that prevented access to the Rear Parcel: a high chain link fence along the property line and a low chain link fence at the back of the two buildings and a lockable chain at the front of the two buildings.

23. Since purchasing the Rear Parcel in 1995, White has never used the disputed easement to access the Rear Parcel.

24. At various times after 1995, White has attempted to assert his right to the easement by speaking with site workers on the Front Parcels, calling Wingate’s agents, and sending a letter dated January 15, 1998 to Wingate’s agent.

25. White asks this court to issue a declaratory judgment as to the easement he claims over Amiff’s property in accordance with the easement referenced in the mortgage to Liberty Trust Company and the Moulton Plan. White also seeks to permanently enjoin Amiff from interfering with the claimed easement. Finally, White seeks costs and damages.

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Discussion

Introduction

The main issue before this court is whether White has a right to an easement over the Front Parcels (f/k/a Lot A and B) to access the Rear Parcel (f/k/a Lot C) even though White’s deed does not contain language regarding an express easement. As a matter of law, “in a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate” are included in the conveyance whether or not those rights, easements, privileges and appurtenances are specifically mentioned. See G.L. c. 183, § 15. However, before an easement of a right of way may be held to pass pursuant to G.L. c. 183, § 15, the easement must have been created. Garrity v. Snyder, 345 Mass. 121 , 124 (1962). Once created, an easement will pass to succeeding grantees whether or not it is mentioned in the deeds. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965). Failure to reference the easement in subsequent deeds does not release the easement. Kenney v. Marino, 350 Mass. 534 , 534 (1966). Neither White’s deed nor White’s immediate predecessor’s deed specifically mention any benefit of an easement. To determine whether White has a right to an easement over the Front Parcel, this court must first determine whether an easement was ever created within White’s chain of title.

Creation of an Express Easement by Grant

An easement “is an interest in land within the statute of frauds and, apart from prescription, requires a writing for its creation.” Baseball Pub. Co. v. Bruton, 302 Mass. 54 , 58 (1938) (citations omitted). Where parties have expressed in a deed or other written instrument an intent to establish an easement, “it is appropriate that a court assist in giving meaning to the instrument and the intention of the parties, as a court does in contract.” Stone v. Perkins, 59 Mass. App. Ct. 265 , 268 (2003). “With respect to an easement created by a conveyance, ‘the extent of [the] easement…is fixed by the conveyance,’…and the ‘language [used]…is the primary source for the ascertainment of the meaning of [the] conveyance’…” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (citations omitted). See Kakas Bros. Co. v. Kaplan, 331 Mass. 323 , 327 (1954); J.S. Lang Eng’g Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923); Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990).

In the present case, the written instrument that Plaintiff relies upon is a 1928 mortgage deed (hereinafter “the 1928 Rear Parcel Mortgage”) for the Rear Parcel from Herman Barron to Liberty Trust Company, which contains the words:

“[T]he said premises are conveyed with the benefit of passageway rights in the nine foot passageway shown on said Plan [the Moulton Plan] and running from the granted premises to Canterbury Street [n/k/a American Legion Highway] for all purposes for which passageways are commonly used and also as a driveway from Canterbury Street to said Lot C [the Rear Parcel] which passageway is to remain open and unobstructed to the sky forever.” It is clear from the words “said premises are conveyed with the benefit” and “is to remain open and unobstructed to the sky forever” that the parties intended to create an appurtenant easement for the Rear Parcel to access American Legion Highway. In addition, the 1928 Rear Parcel Mortgage references a plan locating the intended passageway. While a plan by itself may not create an easement, a plan may illustrate the intended location of the easement. Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481 (1989); Trustees of Deer Crossing Condominium Trust v. Deer Crossing Assocs., 6 LCR 271 , 273 (1998). The referenced plan entitled “Plan by E.A. Moulton, Surveyor, dated July 10, 1926” [the Moulton Plan] shows the exact location of the intended easement as running from the Rear Parcel across the Front Parcels, specifically across Lot A, to access American Legion Highway. The language in the 1928 Rear Parcel Mortgage clearly shows an intent to create an easement benefiting the Rear Parcel and running across the Front Parcels.

Defendant argues that because Plaintiff did not have an expert authenticate the recordings presented at trial, Plaintiff has failed to meet his burden of establishing that the grantor of the 1928 Rear Parcel Mortgage was the rightful owner of the burdened estate. The record indicates that on the same day that Herman Barron mortgaged the Rear Parcel to Liberty Trust Company, he also mortgaged Lot A, the burdened estate, to Pentucket Savings Bank and made it subject to the easement created for the benefit of the Rear Parcel. The court is satisfied that Herman Barron, the grantor of the 1928 Rear Parcel Mortgage, was in fact the rightful owner of the burdened estate, Lot A.

It is a matter of law that no easement in favor of one lot across another lot can be created when both lots are held in common ownership, but if any easement were to come into existence, it would be at the severance of the unity of title. Goldstein v. Beal, 317 Mass. 750 , 754 (1945); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933). One manner to sever the unity of title is when the common owner mortgages the adjoining properties. Goldstein, 317 Mass. at 754. The record shows that on January 31, 1928, Herman Barron, the common owner, mortgaged the Rear Parcel to the Liberty Trust Company and mortgaged Lot A to the Pentucket Savings Bank. Since these mortgages severed Herman Barron’s unity of title in the adjoining lots, the easement then became a lawful and valid express easement. [Note 3] With a valid express easement within White’s chain of title, the easement passed pursuant to G.L. c. 183, § 15 to the succeeding grantees, including White, even though the right was not mentioned in his deed.

Extinguishment of the Easement

It is settled that an appurtenant easement may be extinguished by express grant, release, estoppel, abandonment or prescription. Delconte v. Salloum, 336 Mass. 184 , 188 (1957). The burden of proving an extinguishment of an easement by abandonment or prescription rests upon the party raising the claim. See Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979); Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762, (1964); Trayes v. McKenzie, 16 LCR 148 , 153 (2008). In the case at bar, Defendant argues that the easement has been extinguished by abandonment and by prescriptive use. Amiff, therefore, bears the burden of proof.

Abandonment is a question of intent and “any act relied upon either must be accompanied by evidence of intention, or be in its nature such as necessarily to show an intention, to abandon.” New England Structural Co. v. Everett Distilling Co., 189 Mass. 145 , 154-155 (1905). It must be shown that the holder of the easement clearly demonstrated an unequivocal “intent to abandon.” See Willard v. Stone, 253 Mass. 555 , 561-562, (1925); First Nat'l. Bank of Boston v. Konner, 373 Mass. 463 , 466, (1977). Non-use is not the equivalent of abandonment and mere non-use, no matter how long continued, will not extinguish an easement. First Nat'l. Bank of Boston, 373 Mass.at 466; Lemieux, 7 Mass. App. Ct. at 421.

At most, Defendant has only proven that White has not made use of the Right of Way. It is clear that since purchasing the property in 1995, White has never been able to access the Rear Parcel via the Right of Way because of several fences erected by Defendant. If anything, the existence of the fences could establish a claim for a prescriptive termination of the easement, provided that the requisite time period has lapsed. Defendant has failed to provide enough evidence to demonstrate that White or his predecessors in title clearly possessed an unequivocal “intent to abandon” the easement. Amiff therefore has failed to sustain its burden of proof.

Defendant also argues that the easement has been extinguished by prescriptive use. “[A]cts of the servient tenant incompatible with the existence of an easement, extending over the twenty year period required for prescription, will extinguish an easement.” Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958). The Defendant must show that over a period of twenty years, it acted in a manner inconsistent with the rights of the dominant tenant to establish an extinguishment of the easement by prescription. Defendant claims that in 1972 it installed a fence that denied access from the Front Parcel to the Rear Parcel. Defendant relies on a construction contract from 1971 and testimony by Wingate’s President, Robert Najarian, as evidence that a fence prevented access to the Rear Parcel via the disputed easement. [Note 4] The existence of a fence that prevented the use of the easement is the type of act that is inconsistent with the right of the dominant tenant to give rise to a prescriptive termination of the easement.

The question then is whether the Defendant continued such acts over the requisite twenty year period. It is not disputed that the Defendant became the record owner of the Front Parcels on June 10, 1971. Assuming that the fence was erected in 1972, the twenty year period would have run in 1992, three years before White even purchased the Rear Parcel, thus extinguishing any rights to the disputed easement. The Plaintiff argues, however, that a municipal tax taking interrupted the running of the twenty year period and reset the clock.

On January 31, 1980, the City of Boston received a final decree from this court for a tax foreclosure of the Rear Parcel against the then record owner, Aaron Wedgewood. It is a matter of law in this Commonwealth that land taken by a city or town for non-payment of taxes shall continue to have the benefit of and be subject to any easements that lawfully existed prior to the tax foreclosure and that such foreclosure does not extinguish those easements. See G.L. c. 60, § 54; Sandwich v. Quirk, 409 Mass. 380 , 384 (1991). The City of Boston tax foreclosure of the Rear Parcel, therefore, did not extinguish the right to the easement across the Front Parcel.

Did the clock on Defendant’s prescriptive use of the easement area continue to run during the time the City of Boston took title to the Rear Parcel through tax foreclosure? The Supreme Judicial Court found that when a city or town takes land for nonpayment of taxes, an adverse possessor’s claim over the taken land is interrupted by the foreclosure. Sandwich, 409 Mass. at 385. The court in Sandwich stated, “[w]e see no public policy reason to adopt a common law rule that would burden the municipality, or more specifically its taxpayers, with the omissions of the record owners from whom the property was taken for nonpayment of taxes or with the omissions of public officials who may have unreasonably delayed taking steps to protect the public’s interests by taking the property for nonpayment of taxes.” Id.

In Sandwich, the adverse possessors claimed title to a portion of land that had been taken by the municipality for nonpayment of taxes. Here, Defendant claims adverse use of an easement, appurtenant to the tax taken land but running across Defendant’s land, and does not claim adverse use of the tax taken land itself. While the location of the adversely possessed land is different, the same principles behind the reasoning in Sandwich apply. Where a municipality has taken land for nonpayment of taxes and that land has the benefit of an easement across another’s land, it would be a burden on the municipality and its taxpayers to allow an adverse possessor’s claim over the easement to continue and increase the chances of reducing the land’s value because of omissions by the record owner or by public officials. Of course, the adverse possessor is not without a remedy. G.L. c. 260, § 31 makes clear that municipally taken land not used for conservation, open space, recreation or other public purposes is subject to the twenty year statutory period of adverse use. With respect to the Rear Parcel, there is no evidence to suggest that it was ever used in any of the enumerated manners. The court, therefore, finds that after the City of Boston foreclosed on the Rear Parcel for nonpayment of taxes, Defendant’s prescriptive use of the easement was interrupted and began running anew starting on January 31, 1980.

Defendant then contends that Plaintiff has failed to sufficiently interrupt the twenty year prescriptive period, from January 31, 1980 to January 31, 2000. The record is devoid of any evidence of interruption from January 31, 1980, when the City of Boston took title to the Rear Parcel, through October 29, 1984, when Michael Serrechia and Anne Marie Serrechia purchased the Rear Parcel from the City of Boston, and up to May 5, 1995, when Plaintiff took title to the Rear Parcel from the Serrechias. It is disputed whether, from May 5, 1995 to January 31, 2000, there was ever an interruption of the Defendant’s prescriptive acts over the easement.

The Plaintiff alleges that, on several occasions before 2000, he tried to establish his right to the easement but without any success. Plaintiff claims that he attempted to communicate with the Defendant’s site workers, made phone calls to “Rico,” a/k/a Enrico Gilberti, and sent to Wingate Management Company, Amiff’s site manager, a letter (“the Letter”) dated January 15, 1998. Wingate’s President, Robert Najarian, and Regional Vice-President, Enrico Gilberti, both testified at trial that they did not learn about Plaintiff’s claim of an easement across the Front Parcels until Plaintiff filed the complaint in 2002. It is Defendant’s position that any attempt to interrupt the prescriptive period occurred after January 31, 2000, outside of the twenty year statutory period.

The court notes that the testimony by both Mr. Najarian and Mr. Gilberti contradicts the Defendant’s answer to interrogatory number five. The Defendant’s answer to interrogatory number five states that the Defendant learned about Plaintiff’s claim of an easement by way of a letter dated January 15, 1998. However, both Mr. Najarian and Mr. Gilberti testified that they never received or had notice of the Letter prior to the commencement of this suit in 2002. Mr. Najarian goes on further to claim that he didn’t even know that the site manager, to whom the Letter was addressed to, was his employee. The court does not find the testimony of Mr. Najarian and Mr. Gilberti credible. Whether or not Mr. Najarian or Mr. Gilberti actually received or knew of the Letter, other evidence suggests that at least one of Defendant’s agents was aware of the Letter. The court credits Plaintiff’s testimony and finds that the several attempts to assert a right to the easement across Defendant’s land before 2000 is enough to establish an interruption of the requisite twenty year period. Therefore, the easement was not extinguished by prescription.

Conclusion

In summary, this court finds that the Plaintiff has established an express easement by grant contained within his chain of title and based on the language in a mortgage given to Liberty Trust Company in 1928. Pursuant to the laws of this Commonwealth, that easement passes to the Plaintiff, as a succeeding grantee, even though the easement was not mentioned in the Plaintiff’s deed. I need not address the claims by Defendant that the Plaintiff has not acquired an easement by necessity or by prescription since I have found that the Plaintiff has a right to the easement by express grant.

In addition, this court finds that the easement has not been extinguished by abandonment or by prescription. There is no evidence to suggest that the Plaintiff or his predecessors in title ever intended to abandon the easement. In regards to a prescriptive extinguishment, the Defendant has used the easement in a manner inconsistent with the right of the easement holder by erecting a fence to prevent access to the Rear Parcel, but it has not done so for the requisite twenty year period. First, the municipal tax taking reset the twenty year clock in 1980. Second, the Plaintiff made several attempts to establish his right to the easement before the twenty year statutory period ran in 2000.

This court further enjoins the Defendant, its employees, agents, and servants, from interfering with Plaintiff’s easement over the Front Parcels in order to access the Rear Parcel.

Finally, this court does not grant Plaintiff’s request for damages or costs as he has not suffered or proven any special damages.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: August 8, 2008