Plaintiffs, John D. Hamilton, Jr. and Andrew H. Cohn, as Trustees of the Oyster Pond EP Trust, et al., commenced this action on October 29, 2004, seeking to quiet title to a certain parcel of real property known as South Beach Ocean Front in Edgartown and declaratory judgment, pursuant to G.L. c. 231A, § 1, confirming their rights to use certain rights of way to the beach known as Wheldens Path, Pohogonot Road, and the Road to Short Point, which lie over certain parcels of real property owned of record by certain defendants. [Note 1]
On October 29, 2004, plaintiffs filed an application for preliminary injunction. Defendants opposed the motion on November 19, 2004. The motion was argued before the Court on November 22, 2004, and taken under advisement. The Court (Trombly, J.) issued an Order on November 24, 2004, granted a preliminary injunction enjoining defendants from blocking or otherwise interfering with plaintiffs rights to use their alleged rights of way over the defendants property.
On February 17, 2005, Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust (Pohogonot Trust) filed a motion to intervene. On February 28, 2005, Pamela Kohlberg, as Trustee of the Jobs Neck Trust, and Andrew Kohlberg, as Trustee of the High Road Trust (Kohlberg Defendants) also filed a motion to intervene. The motions were argued before the Court on March 8, 2005, and taken under advisement. The Court issued an Order on April 6, 2005, allowing the motions to intervene.
On April 20, 2005, defendant, the Pohogonot Trust filed an answer and counterclaims. This filing joined as parties the so-called additional defendants-in-counterclaim. [Note 2] On August 23, 2005, plaintiffs, with leave of court, filed their first amended complaint, adding Short Point Holdings, LLC as defendant.
On October 30, 2006, defendants, the Kohlberg Defendants and Short Point Holdings, LLC, filed a motion for partial summary judgment pertaining to alleged easements to use the Road to Short Point. Plaintiffs opposed the motion on December 22, 2006. This motion was argued on February 1, 2007, and is the matter presently before the Court. [Note 3]
On April 14, 2008, the parties filed an assented-to motion to dismiss various claims by and against the Additional Defendants-in-Counterclaim. The motion was heard by the Court on September 18, 2008, and allowed. On September 19, 2008, the Court issued an order dismissing all claims by and against the Additional Defendants-in-Counterclaim.
After reviewing the record before the Court, I find that the following facts are not in dispute:
1. The Myerow Defendants are the owners of certain parcels of land of approximately 23.2 acres, 23.4 acres, and 34 acres, abutting the Pohogonot Trusts land to the northwest.
2. Defendant, Pamela Kohlberg, as Trustee of the Jobs Neck Trust, owns certain land in Edgartown, abutting the Pohogonot Trusts land to the southeast. Defendant Andrew Kohlberg, as Trustee of the High Road Trust, owns certain land in Edgartown, abutting the Pohogonot Trusts land to the east. (Kohlberg Defendants) (Kohlberg Property).
3. Defendant Short Point Holdings, LLC owns certain land in Edgartown, abutting the Pohogonot Trusts land to the southeast (Short Point Property).
4. Plaintiffs own various parcels of land in Edgartown. (A Decision Sketch is attached).
5. The most direct land access between the land owned by plaintiffs and the South Beach Ocean Front is by means of certain rights of ways known as Wheldens Path, Pohogonot Road, and the Road to Short Point (Beach Paths).
6. Wheldens Path runs approximately east/west from the eastern boundary of land owned by the Myerow Defendants to land owned by the Pohogonot Trust and crosses property owned by the Myerow Defendants and the Pohogonot Trust.
7. Pohogonot Road runs approximately southwesterly/northeasterly from the intersection of Wheldens Path and the Road to Short Point to the Beach near Oyster Pond and crosses properties owned by the Myerow Defendants and the Pohogonot Trust.
8. The Road to Short Point runs approximately southeasterly/northwesterly from the intersection of Wheldens Path and Pohogonot Road to the Beach near Jobs Neck Pond and crosses properties owned by the Pohogonot Trust, the Kohlberg Defendants, and Short Point, LLC.
9. By deed dated September 25, 1839, recorded in the Dukes County Registry of Deeds at Book 27, page 316, Thomas Smith conveyed to Thomas H. Norton and William A. Norton, the Short Point Property and an appurtenant easement to use the Road to Short Point to access the property (1839 Smith Deed).
10. The 1839 Smith Deed describes the easement as the right to pass and repass through said [the Kohlberg Property], to and from said Short Point.
11. By deed dated April 18, 1958, recorded in Book 234, page 574, Winthrop B. Norton conveyed the Short Point Property out of the Norton family (1958 Norton Deed).
12. By the 1958 Norton Deed, Mr. Norton attempted to reserve to himself and his heirs and assigns, the right to pass and repass through the [Kohlberg Property]
to and from said Short Point. Reserving unto [Mr. Norton], his heirs and assigns, the right to pass and repass over the granted premises to and from South Beach.
13. The 1839 Smith Deed also reserves an easement over the Kohlberg Property for the benefit of the Short Point Property, described as: [
] the right to pass and repass through said [Kohlberg Property] to and from Short Point.
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Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews the evidence in the light most favorable to the nonmoving party
. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).
In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Commr of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.
With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case, or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).
When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts. Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from pleadings, [Note 4] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with
affidavits, if any
. Mass. R. Civ. P. 56(c).
In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).
I. EXPRESS EASEMENT
Defendants argue that plaintiffs do not have an express easement to use the Road to Short Point, because any easement to use that path was for the benefit of the Short Point Property. 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. Condo. Assn v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). 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. (quoting Ritger v. Parker, 8 Cush. 145 , 147 (1851)).
An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land. Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996) (quoting Restatement of Property, § 453 (1944)). Both the benefit and the burden of an appurtenant easement, by definition, attach to their respective estates and run with them. Well-Built Homes, Inc. v. Shuster, 64 Mass. App. Ct. 619 , 630 (2005) (and cases cited); Restatement (Third) of Property, §5.1 (2000); see G.L. c. 183, § 15; Melville Shoe Corp. v. Kozmisnsky, 268 Mass. 172 , 179 (1929); Meheran v. Lafferty 11 LCR 315 , 316 (2003) (Misc. Case No. 283237) (Sands, J.).
An easement in gross benefits a person, rather than a certain parcel of land. See Goodrich v. Burbank, 12 Allen 459 , 461 (1866); see also Baseball Publ. Co. v. Bruton, 302 Mass. 54 , 57 (1938).
A deeded easement is subject to the law of interpretation of deeds. 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. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (and cases cited); Doody v. Spurr, 315 Mass. 129 , 133 (1943) (and cases cited). Whether an easement is appurtenant or in gross depends upon the words whereby it is created, the concurrent conditions and the accompanying circumstances. Holyoke Water Power Co. v. Whiting & Co., 276 Mass. 528 , 534 (1931) (citing Goodrich, 12 Allen at 459); Randall v. Grant, 210 Mass. 302 , 304 (1911). Where the language of the granted easement is silent, the Court may consider the circumstances surrounding the grant as to the intention of the parties who created it. See Hodgkins v. Bianchini, 323 Mass. 169 , 174 (1948); Doody, 315 Mass. at 133; Kessler v. Bowditch, 332 Mass. 265 , 268-69 (1916). Absent any language to the contrary, an easement is presumed to be appurtenant rather than in gross. Jones v. Stevens, 276 Mass. 318 , 323 (1931) (quoting Willets v. Langhaar, 212 Mass. 573 , 575 (1912)). The use made of the servient tenement at the time of the conveyance is a factor to be considered in determining the extent of the easement created. Hodgkins, 323 Mass. at 174.
In the instant action, by the 1839 Smith Deed the Norton family held an easement to use the Road to Short Point to access the Short Point Property. By the 1958 Norton Deed, Winthrop B. Norton conveyed the Short Point Property, but attempted to reserve to himself and his heirs and assigns, the right to pass and repass through the [the Kohlberg Property]
to and from Short Point[] and the right to pass and repass over [the Short Point Property] to and from South Beach. The Short Point Property was the dominant estate, the owner of which held the benefit of an easement to cross the lands over which the Road to Short Point lies in order to access the his or her property. Mr. Norton, as owner of the Short Point Property held this right. He, therefore, did not hold an easement in gross, for his own personal benefit.
Mr. Norton was confined to the terms of the original grant in the 1839 Deed and, thus, did not have the authority to unilaterally reserve the appurtenant easement to himself as an in gross easement when conveying the Short Point Property. See McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). Nor did Mr. Norton have the right to substitute another parcel of land as the dominant estate. See id. Such an act is well beyond the express grant of the easement and would have required a new grant by the servient estate. See id. Accordingly, I rule that the plaintiffs do not hold an express easement to use the Road to Short Point to access the Short Point Property.
Furthermore, Mr. Norton attempts to reserve an easement to himself, personally, without reference to a certain parcel of land. This is clearly an in gross easement. An easement in gross is particular to a specific individual and cannot be assigned or transferred. See Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002) (citing Restatement (Third) of Property, § 1.5 (2000)). Therefore, while Mr. Norton may have held an easement in gross to use the Road to Short Point as it lies over the Short Point Property in order to access the Beach as well as the right to use the Short Point Property to fish and hunt, such rights were extinguished upon his death and were not validly assigned to his heirs. Accordingly, I rule that plaintiffs do not hold an express easement to use the Road to Short Point as it lies over the Short Point Property to access the Beach or to use the Short Point Property to fish and hunt.
II. ESTOPPEL BY DEED
Plaintiffs argue that defendants are barred by the doctrine of estoppel by deed from denying the plaintiffs easement rights. The doctrine of estoppel by deed bars a grantor from denying the ownership of the grantee when the grantor did not have an interest in the property at the time of the conveyance to grantee but subsequently acquires such interest. Zayaka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992); Mt. Washington Co-op. Bank v. Bernard, 289 Mass. 498 , 500 (1935); Ayer v. Philadelphia & Boston Face Brick Co., 159 Mass. 84 , 87 (1893).
The facts of the instant case do not align with this scenario. Here Winthrop B. Norton conveyed the Short Point Property but attempted to reserve an easement over abutting land. Although, analytically, a grantor who reserves an easement from the conveyance stands in the position of a grantee, he or she is not, practically, of that same status. A grantor who creates or retains an existing right from his or her interest in land, reserves that right to himself or herself from the conveyance; the reserved right is analytically, but not practically, conveyed to the grantee and then re-conveyed to the grantor. Furthermore, estoppel by deed is a doctrine intended for the protection of grantee from fraud by the grantor. Here, Mr. Norton, as grantor, had full knowledge of and complete control over the transaction. A grantor who reserves a right from the conveyance to himself is still a grantor and, therefore, not at risk of being the victim of such fraud.
Plaintiffs ask the Court to stretch the doctrine to application where a grantor reserves an easement over land that he or she believes grantee already owns. This is far beyond the bounds of this doctrine. Even if Mr. Norton could have reserved such an easement, he is not of the type of person that the doctrine is intended to protect. Accordingly, the doctrine has no application here.
However, I do not rule on the issue of the plaintiffs claim of easement by prescription to use the Road to Short Point to access the Beach. On this issue, there still remain unresolved, material facts, which must be determined at a later time.
CONCLUSION
For the foregoing reasons, the Court concludes that plaintiffs do not hold an express easement to use the Road to Short Point to access the Short Point Property or the Beach. Although such an express grant did exist, it was appurtenant to the Short Point Property and could not unilaterally have been made in gross or a different parcel of land substituted as the dominant estate. To the extent that in gross easements could have been reserved concerning the Short Point Property, those easements were not assignable and, therefore, extinguished upon the death of Mr. Norton. Accordingly, the Kohlberg Defendants and the Short Point Defendants motion for partial summary judgment pertaining to alleged easements to use the Road to Short Point is hereby ALLOWED IN PART and DENIED IN PART.
Charles W. Trombly, Jr.
Justice
Dated: April 1, 2009
JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of Oyster Pond EP Trust, RICHARD L. FRIEDMAN, ALLEN W. NORTON, JUDITH A. NORTON, and MELISSA NORTON, as Trustees of the Quiet Oaks Realty Trust, ALBERT WHITE, TONI W. HANOVER, and SHAUNA W. SMITH, individually and as Trustees of the Quampacky Trust v. MICHAEL D. MYEROW as Trustee of Botar Realty Trust, the Rabor Realty Trust, and the Tarob Realty Trust, PAMELA KOHLBERG as Trustee of the Jobs Neck Trust, ANDREW KOHLBERG as Trustee of the High Road Realty Trust, JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the Pohogonot Trust, PAUL E. KONIG and JOANNE V. KONIG, as Trustees of the Paul E. Konig Revocable Living Trust and as Trustees of the Joanne V. Konig Revocable Living Trust, JOKASE LIMITED PARTNERSHIP, and SHORT POINT HOLDINGS, LLC