JOHN G. SAMAAN and LYNN E. SAMAAN v. JEAN C. TRYON, individually, and JEAN C. TRYON and JULIA R. TRYON, trustees of the Jonathan S. Tryon Living Trust

Introduction

This case involves two express easements (referred to in the deeds as “rights of way”), appurtenant to plaintiffs John and Lynn Samaan’s property on Granite Street in Rockport and leading from the rear of that property to the Gull Cove harbor, which the owners of the land over which those easements run (defendants Jean Tyron, individually, and Jean and Julia Tryon, as trustees of the Jonathan Tryon Living Trust) contend have either been extinguished or abandoned. The Samaans seek a declaration that they and their successors may use the rights of way for all purposes set forth in the deeds, and a permanent injunction prohibiting the Tryons and their successors from interfering with such use. [Note 1]

The case was tried before me, jury-waived. Based upon the parties’ stipulation of facts, the exhibits admitted into evidence, the testimony of the witnesses, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the rights of way have neither been extinguished nor abandoned, and grant the Samaans the injunctive relief they seek.

Facts

The Samaans are the owners of two adjoining parcels of land in Rockport, Lots 3 and 4 as shown on a recorded plan entitled “Land in Rockport, Mass., belonging to Warren S. Tryon et als.,” dated July 26, 1937, by Raymond C. Allen, Civil Engineer (the “1937 Allen Plan”). [Note 2] A copy of that plan is attached as Exhibit 1. The Tryons own Lots 1, 2 and 5.

The Samaan and Tryon properties were once a single, undivided parcel of land owned of record by Margaret Chisholm, [Note 3] as shown on a plan entitled “Land in Rockport, Mass., formerly belonging to The Rockport Granite Co. (Sept. 30, 1935) (the “1935 Allen Plan”). [Note 4] On September 27, 1935, Ms. Chisholm conveyed that undivided parcel (the “Chisholm parcel”) to two married couples as tenants in common — Warren and Rachel Tryon, [Note 5] and Maurice and Dorothy Thoumine — together with “the right to use the right of way from Granite Street to the rear of the above described premises, as shown on [the 1935 Allen Plan], for travel, with vehicles or otherwise, subject, however, to the rights, if any, of others entitled thereto.” [Note 6] That plan shows a 20’ wide right-of-way beginning at Granite Street, running east and then south along the boundary of the Chisholm parcel’s northern neighbor, continuing south along the easterly border of the Chisholm parcel, and then leaving that parcel to turn east again where it apparently terminated at a wharf (the so-called “West Wharf”) on property either then or formerly owned by Rockport Granite. [Note 7] Even though the way extended past the Chisholm parcel to the West Wharf, the express language of the deed (the right granted is to use the way “from Granite Street to the rear of the above-described premises”) (emphasis added) and the fact that the area depicted by the plan ends just past the eastern boundary of the property (far short of the wharf), clearly indicates the intent for the easement to stop at the eastern edge of the parcel. [Note 8] This right of way, ending at the eastern edge of the parcel, is hereafter referred to as “the 20’ right of way.” [Note 9]

A little less than two years later (August 7, 1937), for reasons not explained in the record, the Tryons and the Thoumines conveyed precisely the same parcel and precisely the same easement rights back to Ms. Chisholm. [Note 10] Their deed to Ms. Chisholm refers not only to the 1935 Allen Plan, but also to a new plan by Mr. Allen, the 1937 Allen Plan (Ex. 1) (recorded simultaneously with the Tryon/Thoumine to Chisholm deed), which divides the parcel into five lots (Lots 1 – 5) and shows two rights-of-way — (1) the 20’ right of way, and (2), a second right of way, 10’ wide, leading from the 20’ right of way across Lot 1 to the harbor (hereafter referenced as “the 10’ right of way). [Note 11] See Ex. 1. On September 17 and 18, 1937, less than six weeks later, Ms. Chisholm conveyed the five lots in three near-simultaneous transactions. She deeded Lots 3 and 4 to the Thoumines, [Note 12] Lots 2 and 5 to the Tryons, [Note 13] and Lot 1 to Elizabeth and Robert Hershey. [Note 14]

The Chisholm/Thoumine deed granted the right, appurtenant to Lots 3 and 4,

…to use, in common with others entitled thereto, the right of way extending from Granite Street, in the rear of the granted premises, for travel with teams or otherwise, including the right, also, to use the ten-foot right of way extending to the harbor, as shown on [the 1937 Allen Plan]. All the monuments, courses, boundaries and measurements of said parcels are as shown on said plan.

The Chisholm/Tryon deed granted the right, appurtenant to Lot 2,

…to use the right of way extending from Granite Street, in the rear of the granted premises, for travel, with teams or otherwise, in common with others entitled thereto, said right to include, also, the ten-foot right of way extending to the harbor, as shown on [the 1937 Allen Plan].

The Chisholm/Hershey deed granted the right, appurtenant to Lot 1,

…to use the right of way extending from said Granite Street to the rear of the granted premises, to and along the easterly boundary of the granted premises, for all the usual purposes of a street or way.

It also made Lot 1

…subject to a right of way, for passage by teams or otherwise, ten feet in width, across the easterly end of the granted premises, as shown on [the 1937 Allen Plan] [i.e. the 10’ right of way]; said right of way being for the benefit of the owners of Lots 2, 3 and 4, as shown on said plan.

Warren and Rachel Tryon subsequently acquired Lot 1 (subject to the 10’ right of way), [Note 15] as well as Rockport Granite’s former land immediately to the east of the 20’ right of way (Lot 1 of the “West Wharf Lots”). [Note 16] All of the Tryon lots (Lots 1, 2 and 5 on the 1937 Allen Plan, and Lot 1 of the West Wharf Lots) are currently owned by the defendants. [Note 17] The Tryon to Tryon deed (Apr. 18, 1986), conveying the defendants, inter alia, Lots 2 and 5, expressly states that Lot 2 has the appurtenant right

to use the right of way extending from Granite Street, in the rear of the granted premises, for travel, with teams or otherwise, in common with others entitled thereto, said right to include, also, the ten-foot right of way extending to the harbor, as shown on [the 1937 Allen Plan].

Id.

Lots 3 and 4 have been conveyed on three occasions since the Chisholm to Thoumine deed and are currently owned by the Samaans. [Note 18] Each of those deeds reflects the right, appurtenant to those lots, “to use, in common with others entitled thereto, the right of way extending from Granite Street in the rear of the granted premises, for travel with teams or otherwise, including the right, also, to use the ten-foot right of way extending to the harbor, as shown on [the 1937 Allen Plan].” [Note 19]

The Samaans hired a surveyor to locate and mark the 20’ and 10’ rights of way on the ground and prepare a new “retracement” survey, both based on the 1937 Allen Plan. A copy of the relevant portion of that retracement survey is attached as Exhibit 2. Many of the original monuments were found, as indicated. Other monuments were “set” based on the survey’s measurements and calculations. The only notable variation between the 1937 Allen Plan and the retracement is the length of the 10’ right of way. The 1937 Allen Plan states that it is “25’ +/-” at its eastern edge. The retracement measures it as 38.86’ at that location. The difference is not material, and a reasonable explanation was suggested by the surveyor during the course of his testimony at trial. Clearly the 10’ right of way was intended to go from the 20’ right of way to the harbor, as the various deeds expressly state. Moreover, it makes perfect sense if it is a harbor-access easement, and no sense at all if falls short. The 25’ measurement in the 1937 Allen Plan is identical to the 25’ call in the Lot 1 deed as the lot’s southeasterly boundary, [Note 20] and the next call in those deeds is “southeasterly by the harbor,” [Note 21] showing that the 25’ was intended to measure the entire distance to the harbor. As the surveyor suggested, the difference between the 25’ reflected in the deed descriptions and the 38.86’ measured on the ground is probably attributable to the addition of “riprap” (additional rocks) at the water’s edge to inhibit erosion. It may also be simply a difference in the placement of the water’s edge by the different surveyors — a not-uncommon occurrence when tidal measurements are taken, and one which the modern use of standardized NGVD measurements is intended to address. See Houghton v. Johnson, Misc. Case No. 308323 (KCL), Memorandum and Order Allowing Defendant’s Motion for Summary Judgment at 10-15 (Aug. 9, 2006). In any event, when a right-of-way to a waterfront is altered by accretion or erosion, it is adjusted so that it still reaches the water. See Lorusso v. Acapesket Improvement Ass 'n, Inc., 408 Mass. 722 , 780-81; Burke v. Commonwealth, 283 Mass. 63 , 68 (1933) ("it is settled that where accretions are made to land along the seashore, `the line of ownership follows the changing water line') (citing East Boston Co. v. Commonwealth, 203 Mass. 68 (1909); East Boston Co. v. Commonwealth, 203 Mass. at 75 ("upon the doctrines applying to accretion and erosion and to the elevation and subsidence of land affecting the water line along the shore of the sea under conditions like these, the line of ownership follows the changing water line").

The Tryons contend that these express easements have either been abandoned or extinguished by the following actions of the parties. In the 1950’s, Warren Tryon placed a line of flat stones, likely no more than 12”-18” high at most, [Note 22] on the 20’ right of way at or near the boundary between Lots 2 and 3 (the boundary between the Samaan and Tryon properties). The Samaans’ survey indicates that these stones go across only half of that easement, and photographs taken in 1993 show that the stones had both tumbled and were easily stepped over. Warren Tryon also planted forsythia cuttings in the ground, which grew over time into bushes. Some of them were in the 20’ right of way and anyone using that easement would need to push them aside to get through. This was more of an issue in the summer, and less in other seasons. Bushes were also planted at the top of the 10’ right of way, and again would need to be pushed aside or skirted to use that easement. At large oak tree has grown on the edge of the 20’ right of way, with its trunk blocking approximately three feet of the easement’s width. On at least a few occasions, Warren Tryon yelled at children who were living or visiting at the Samaan property, and at least once at one of the property’s prior owners, Dennis Flavin, although whether to keep them from using the easement or simply to discourage them from walking through other parts of his yard is unclear. In 1993, shortly after the Samaans bought the property, the Tryons invited them to tea and asked them not to use the easements. [Note 23] A “gentlemen’s agreement” resulted, under which the Samaans promised to minimize their use of the easements on two conditions (1) if the Tryons would remove a granite block from the Granite Street side of the Samaan/Tryon boundary line, where it restricted the Samaans’ ability to open their car doors, and (2) if the Tryons would keep their trees and bushes trimmed so that the Samaans would have an ocean view from their deck. This pact soon broke down, however, when the Tryons put the granite block back near the front parking area, and it was certainly a nullity by the beginning of 2005 when the Tryons refused a direct request to trim back their trees and, instead, sent a formal letter to the Samaans contending that “the right of way was extinguished long ago” and “caution[ing]” the Samaans that “they [had] no right to be on the [Tryons’] property for any purpose.” Trial Ex. 14.

Nothing ever prevented the Samaans or their predecessors from using the rights-of-way, nor succeeded in deterring them by agreement or rebuke. The Samaans’ surveyors were able to locate or set all of the monuments for the two easements. Neither the stones nor the forsythia bushes at the Samaan/Tryon boundary line kept them from passing between those properties along the easement during their survey. The oak tree was clearly a barrier, but only for three feet at the easement’s side. The surveyors also walked through the line of bushes at the top of the 10’ right of way “many times…to get down to the water.” Trial Tr. at 204. One of the property’s prior owners, Dennis Flavin, testified that he “knew [he] had a right of way” and “a few times…used to go down different directions to try and get back down to the rocks”, taking “about every route you could possibly get to get down to the water without getting screamed at.” Trial transcript at 2-25 — 2-27. [Note 24] Another prior owner, Bruce Levick, testified that he used the 20’ and 10’ rights of way as well, probably five to ten times per year, and on one occasion to land a boat. [Note 25] The Samaans themselves were shown the easements (by Mr. Levick) and walked along them at and shortly after they purchased their property, finding openings in the bushes to walk through. They were seen by the Tryons while walking along the easements, without any challenge, on at least one occasion. When they entered into the “gentlemen’s agreement” they did not intend to abandon their easements (indeed, they told the Tryons they continued to view them as “valid right[s] of way”, Trial Transcript at 42), but only to limit their use so that they would not “utilize it too often” so long as the Tryons kept up their end of the bargain. Indeed, even during the 1993-2005 period when the agreement was arguably in place, the Samaans’ children frequently walked along the easements to get to the harbor. [Note 26]

Other pertinent facts are included in the analysis section below.

Standard for Easement Abandonment

"Non[-]use does not of itself produce an abandonment no matter how long continued." Delconte v. Sallourn, 336 Mass. 184 , 188 (1957) (internal citation omitted). "[I]t is axiomatic that '[m]ere non-use[] does not conclusively impair or defeat an easement created by deed."' Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421 (1979) quoting Willets v. Langh 212 Mass. 573 , 575 (1912). "[N]on[-]use for many years ... coupled with ... failure to clear the right of way of its natural cover of trees and brush ... falls far short of establishing abandonment." Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958). Rather, “in order to establish abandonment of easements such as these there must be acts of 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.” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (internal citations and quotations omitted).

Standard for Easement Extinguishment

To extinguish an easement requires showing that the servient tenant’s acts were "utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement,” essentially making use of the easement “practically impossible for the period required for prescription.” New Eng. Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 ,159 (1931); see also Brennan v. Decosta, 24 Mass. App. Ct. 968 , 969 (1987) (holding that those claiming extinguishment of a way must “prove occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely and without interruption for more than twenty years,” and where the court found that the way had not been extinguished despite the location of trees in the way since a car could drive between the trees).

Analysis

Both the 20’ and the 10’ rights of way were explicitly granted in the parties’ chains of title, and are appurtenant to and benefit/burden Lots 1, 2, 3 and 4 today. Neither the Samaans nor their predecessors have abandoned, nor have the Tryons or their predecessors extinguished, either of those easements. They may be both maintained and used by the Samaans “for travel with teams and otherwise” and, most certainly, for foot travel back and forth to the Cove Gull harbor at the end of the 10’ right of way.

There is no evidence that any of the owners of the now-Samaan property ever expressed an intent to abandon their easement rights. Nor does any of their past or present conduct indicate an intent to do so. The overgrowth that existed in the backyard of the now-Samaan property at the time the Flavins first occupied it was not sufficient, and not sufficiently long in place, to reflect or constitute an “abandonment” of the easements. [Note 27] Indeed, the deed from the owner at the time the overgrowth existed (Thoumaine) to the successor owners (the Flavins) expressly reflected the continuing existence of the easements. The “gentlemen’s agreement” was likewise not an abandonment. It was never anything more than an agreement by the Samaans to minimize their use of the easements, and its conditions were breached by the Tryons when they returned the granite block to its former location near the Samaans’ front parking area and when they refused to trim their trees and bushes so that the Samaans could view the ocean from their deck. As a matter of law, the non-use of the easements for stretches of time was not an abandonment. Rather, through their consistent use of the easements, even if as infrequent as a few times a year, the Samaans and their predecessors clearly showed their intent to retain all of their easement rights.

Extinguishment of an easement requires “occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely and without interruption for more than twenty years,” Brennan, 24 Mass. App. Ct. at 969, and none of the Tryons’ (or the predecessor Tryons’) acts rise anywhere near that level.

The stones which Warren Tryon placed along the property line are not, and have never been, a barrier preventing access to the easements. They could be, and were, easily stepped over.

Neither the forsythia bushes along the Samaan/Tryon boundary, nor the bushes at the top of the 10’ right of way, made use of the easements impossible, or even all that difficult. As detailed above, each of the owners and prior owners of the Samaan property who testified at trial were clear that they had used the easements during the time of their ownership and were able to find ways through the bushes to do so. The surveyors, who located the easement boundaries precisely, were able to do so “many times,” showing that access is possible even today. Indeed, it is undisputed that those bushes were smaller in the past. The Tryons point to the current size of those bushes, as well as the past overgrowth in the back yard of the Samaan property, as evidence of the abandonment of the easements. However, "non[-]use for many years ... coupled with ... failure to clear the right of way of its natural cover of trees and brush ... falls far short of establishing abandonment." Desotell v. Szczygiel, 338 Mass. at 159. Kathy Lorden, who rented the upper floors of the now-Samaan property from 1969-1976, testified that she herself did not use the rights-of-way while living there, but also that the Tryons never prevented her from using them. [Note 28]

The only true “barrier” in either of the easements is the oak tree, three-feet of whose trunk occupies one side of the 20’ right of way. The easement has thus been reduced to that extent.

Conclusion

The Samaans, and their heirs, assigns, and successors as owners of Lots 3 and 4 as shown on the 1937 Allen Plan are entitled to use, maintain and improve the two rights-of-way, “for travel by teams or otherwise,” as provided in the deeds. The 10’ right of way extends to the harbor. It is hereby ORDERED that the Tryons, and their heirs, assigns, and successors as owners of Lots 1 and 2 are permanently enjoined from interfering with those rights. The oak tree that encroaches three feet into the easement, as shown in agreed exhibit 26, may remain. All other bushes and plantings in the easements may be removed. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 4 December 2008