JULIO O. JOHNSON v. DAVID R. WHITE, JUNE B. WHITE, and CAMP TIKVAH, INC.

Plaintiffs commenced this case on November 14, 2005, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to the rights of the parties relative to an easement over property of Defendants, David R. White, June B. White, and Camp Tikvah, Inc. Defendants filed an Answer and Counterclaim on January 3, 2006, the Counterclaim seeking to enjoin Plaintiff from traversing the easement, a declaratory judgment as to the width and location of the easement, and seeking also damages for injuries resulting from trespass to land.

On May 22, 2009, the court took a view of the property in the presence of counsel. Trial was held and completed the same day at the Bristol County Probate and Family Court in the Durfee Courthouse in Fall River. Stenographer Barbara St. Jean was sworn to take the testimony. Exhibits A-Q were admitted into evidence (including Exhibits C, C-1, C-2, D, D-1, F-1, and F-2; there was no Exhibit F) and Chalks 1 and 2 were marked for identification. Testifying were Plaintiff Julio Johnson and Defendant David R. White. This is the matter presently before the court.

After reviewing the record before the court, I find the following facts:

1. Plaintiff Julio O. Johnson is the owner of a parcel of real property, known as and numbered 2 Upton Street in Acushnet (2 Upton Street Property).

2. Plaintiff is also the owner of certain lots of real property in a subdivision, known as the Lakewood Subdivision. The Lakewood Subdivision was created by plan of land titled “Lakewood, Acushnet, Mass., March 1915, Scale 1 Inch = 40 Feet” (Lakewood Subdivision Plan). Plaintiff’s lots are identified as Lots 29-33; 84-94; 144-162; and 165-183 on that plan (Lakewood Property).

3. The 2 Upton Street Property is not part of the Lakewood Subdivision.

4. The 2 Upton Street Property abuts lot 158 of the Lakewood Property to the South.

5. Defendants, June B. White and David R. White, are the owners of a parcel of real property, known as and numbered 151 Lake Street in Acushnet (Defendants’ Property).

6. The Defendants’ Property abuts a public way known as Lake Street. A Decision Sketch is attached.

7. The Plaintiff’s title to the Lakewood Property derives from Orient A. Benoit and Charlotte S. Benoit. Prior to November 1981, the Benoits owned Lots 29-33; 84-116; 119-143; 147-162; and 165-183 in the Lakewood Subdivision.

8. In consideration of the Benoits not bringing a lawsuit against Defendants, by deed dated November 30, 1981, Defendants conveyed to Mr. and Mrs. Benoit an easement appurtenant to the Lakewood Subdivision property over the Defendants’ Property (Easement). The Easement is described as follows:

a right of way to pass and repass over a dirt road running from Lake Street over land of the Grantors to the old Woods Road and on and into all of the roads on a plan entitled Lakewood, Acushnet, Massachusetts, March 1915, Scale 1” = 40’ and recorded in the Bristol County Registry of Deeds (S.D) Plan Book 14, Page 15 …. This easement shall be appurtenant to all the lots owned by the grantees and shall run with the land.

9. In this document, defendants expressly reserved the right to relocate the Easement:

In the event the grantors want to move said right of way or easement, they shall have that right, but the new right of way or easement shall be comparable to the old one.

10. Plaintiff acquired 2 Upton Street from Arsene J. Cusson by deed dated October 5, 1994 (1994 Deed). The 1994 Deed conveyed the property and also granted “the right, if any I have, to the use, in common with others, of the dirt road leading from the north boundary of the granted premises into Middle Road, for the purpose and passing and repassing thereon to and from the premises herein granted” (emphasis added).

11. By deeds dated August 22, 1995 and August 24, 1995, Harriet E. Russell and Althine F. Whitsitt, respectively, conveyed to Plaintiff “[t]he right to use the woods road, the right to use the existing road leading from Peckham Road to Millis street, so called and the right to use said Millis Street and all of the streets and drives shown on the [Lakewood Subdivision Plan] …, which right shall be for all purposes for which public and private roads are used in the Town of Acushnet.

“Said rights shall be appurtenant to [2 Upton Street] …, and shall run with the land.”

12. After acquiring 2 Upton Street, Plaintiff accessed the property using Cranberry Dike Road for six to seven years. Plaintiff then accessed the property using Old Woods Road for six to eight months.

13. Cranberry Dike Road runs from the North of the Lakewood Subdivision to a public way known as Keene Road. Old Woods Road runs from the East of the Lakewood Subdivision to a public way known as Middle Road. Neither Cranberry Dike Road nor Old Woods Road runs over Defendants’ Property.

14. In or around 2001, Plaintiff began to use the dirt road over Defendants’ Property to access his 2 Upton Street Property.

15. Plaintiff first acquired some of his current property in the Lakewood Subdivision by deed dated April 26, 2002, when Charles E. Moss, Denise J. Moss, Neil S. Rosenberg, Stephen P. Rosenberg, and Christopher M. Cambra conveyed to Plaintiff lots 158-161 and 181-183 (2002 Deed).

16. The 2002 Deed conveyed the lots “[t]ogether with those rights reserved in a deed from Frank P. Crandon to Robert S. Rounsvelle, et ux, dated March 17, 1971, recorded in [the Bristol County S. D.] Registry of Deeds in Book 1616, Page 437.”

17. By deed dated October 15, 2004, Plaintiff acquired the balance of his Lakewood Property: lots 162; 175-180; 29-33; 84-87; and 165-176. Subsequently plaintiff conveyed out 1-4; 29-33; 84-87; and 165-174.

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Plaintiff claims the right to use the Easement over the Defendants’ Property to access his 2 Upton Street Property. The owner of a parcel of land benefited by an easement cannot use that easement “to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.” Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-79 (1965) (and cases cited); see also McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996) (and citations). This is true even if the dominant owner crosses the benefited estate during the trip to or from the adjacent land. See Murphy, 348 Mass. at 679. While an easement in gross is personal to an individual, Jones v. Stevens, 276 Mass. 318 (1931); Goodrich v. Burbank, 94 Mass. 459 (1866), an easement appurtenant is particular to real estate, G.L. c. 183, § 15; Melville Shoe Corp. v. Kozminsky, 268 Mass. 172 (1929). Therefore, property may not be added to the dominant estate without the express consent of the servient tenant. Id.; McLaughlin v. Bd. of Selectmen of Amherst, 38 Mass. App. Ct. 162 , 169 (1995) aff’d 422 Mass. 359 (1996)) (and cases cited). Such a use constitutes an overburdening of the easement. McLaughlin, 38 Mass. App. Ct. at 169.

In the present case, Defendants granted to the Plaintiff’s predecessors in title an easement over the Defendants’ Property for access to the Lakewood Subdivision from Lake Street. The Easement states expressly that it is appurtenant to the grantees’ property in the subdivision, what is now Plaintiff’s Lakewood Property. It is undisputed that Plaintiff holds this Easement as the owner of the Lakewood Property. As such he may use the dirt road over the Defendants’ Property to access his Lakewood Property lots. However, Plaintiff may not make use of the Easement to pass to or from his 2 Upton Street Property. The 2 Upton Street Property is not part of the Lakewood Subdivision nor was it a parcel included in the original dominant estate as established by Defendants and Plaintiff’s predecessors in title, in 1981. Therefore, the property may not be added to the dominant estate without the express consent of the Defendants. Plaintiff’s use of the Easement to access the 2 Upton Street Property constitutes an overburdening of the Easement, even if he passes over his Lakewood Property during the trip.

Plaintiff argues that the Lakewood Property consists of lots which are not buildable, either alone or together, and therefore, they must merge with one another and the 2 Upton Street Property. Plaintiff implicitly concludes that the resulting dominant estate would comprise the entirety of this new lot, allowing Plaintiff to access what is now the 2 Upton Street Property by the dirt road over the Defendants’ Property. In support of this novel theory, Plaintiff cites G.L. c. 40A. While it is true that adjacent lots, held in common ownership prior to the effective date of a zoning change which renders the lots nonconforming, “will normally be treated as a single lot …,” this truism is limited “for zoning purposes,” only, “so as to minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance.” Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987) (and cases cited); G.L. c. 40A, § 6; Adamowicz v. Ipswich, 395 Mass. 757 , 763 (1985). There is nothing in the record conclusively demonstrating that the Plaintiff’s properties, either the individual Lakewood Property lots or the 2 Upton Street Property, are nonconforming. Furthermore, there is nothing in the record suggesting that a zoning change occurred in the town of Acushnet which rendered these lots nonconforming and, thereby, caused their merger. Even if it is presumed that the lots did merge, the properties would be considered one lot for the purposes of zoning only. Regardless, the 2 Upton Street Property was not part of the original dominant estate and, therefore, is not be benefited by the Easement. If the rule were otherwise, a dominant tenant could increase the dominant estate at any time by acquiring adjacent land and redrawing the property lines to form one parcel.

Plaintiff suggests that the present case is distinguishable from Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-79 (1965), because in the present case, the Lakewood Property is unbuildable and, therefore, his use of the Easement to access the 2 Upton Street Property is not more than what it would be had he resided on the Lakewood Property. I disagree; the 1981 Deed creating the Easement expressly states that “[t]his easement shall be appurtenant to all the lots owned by the grantees ….” Use of the Easement to access the 2 Upton Street Property is an overt extension beyond the scope of the granted Easement. It would be unfair to allow a dominant tenant to add adjacent property to the dominant estate simply because he or she does not make use of the dominant land.

Plaintiff argues also that the 2002 Deed expressly conveyed a right which was reserved by Frank P. Crandon in a deed to Robert S. Rounsvelle, et ux., dated March 17, 1971, recorded in the Bristol County Registry of Deeds in Book 1616, Page 437. This 1971 deed was not offered as evidence at trial. Allegedly, however, the right reserved by Mr. Crandon was “to use Woods Road, … Millis Street and all of the streets and drives shown on the [Lakewood Subdivision Plan] … which right shall be for all purposes for which public and private roads are used in the Town of Acushnet.” Pl.’s Post Trial Mem. 9. Plaintiff points also to deeds dated August 22, 1995 and August 24, 1995, whereby Harriet E. Russell and Althine F. Whitsitt, respectively, conveyed to Plaintiff “[t]he right to use the woods road, the right to use the existing road leading from Peckham Road to Millis street, so called and the right to use said Millis Street and all of the streets and drives shown on the [Lakewood Subdivision Plan] …, which right shall be for all purposes for which public and private roads are used in the Town of Acushnet.” However, these conveyances are irrelevant to the rights of the parties concerning the Easement; they concern only the right to use the roads contained in the Lakewood Subdivision as depicted in the Lakewood Subdivision Plan. Accordingly, I rule that Plaintiff has no right to use the Easement over the Defendants’ Property for access to and from his 2 Upton Street Property.

Plaintiff claims also that the Easement should be twenty-two feet in width or greater so as to meet the requirements for access of the Acushnet Zoning By-Law. An easement given by express grant, unlimited in scope, is available “for every reasonable use to which the dominant estate may be devoted, and this use may vary from time to time with what is necessary to constitute full enjoyment of the premises.” Mahon v. Tully, 245 Mass. 571 , 577 (1923) cited in Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504 (1986); see also Tehan v. Security Nat’l Bank, 340 Mass. 176 (1959); Parsons v. New York, N.H. & H.R. Co., 216 Mass. 269 (1913). The Easement in this case is defined only as the right “to pass and repass” over the dirt road on Defendants’ Property. The purpose of this Easement was to provide access to the Lakewood Subdivision lots. Since the Easement was created in 1981, the dirt road has serviced the Lakewood Subdivision owners. The road in its current condition, substantially unchanged since it was laid out, is sufficiently wide for foot and vehicle traffic to traverse. Full use and enjoyment of this right is fulfilled simply by the width of the dirt road as it existed on November 30, 1981, when the Easement was created.

Plaintiff argues that the dirt road over Defendants’ Property was laid out to allow trucks of the D.W. White Construction company to access a gravel pit. However, this was the use of the road prior to the grant of the Easement. Moreover, this was not the dominant tenant’s use of the road. Therefore, this evidence is of no relevance to defining the scope of the Easement. Plaintiff has produced no evidence to suggest that the road need be of different dimension than it was in 1981 in order for it to provide full use and enjoyment of the Easement. Accordingly, I rule that to the extent that the Plaintiff has the right to use the Easement, the dirt road running over the Defendants’ Property is of sufficient width for its full use and enjoyment.

Plaintiff claims also that he has the right to maintain and improve the Easement at his own expense. It is well-settled law that the dominant estate has the right to make reasonable repairs to maintain the right of way for full use and enjoyment. Guillet v. Livernois, 297 Mass. 337 , 340 (1937); Mt. Holyoke Realty Corp., 298 Mass. at 514. Similarly, the dominant estate must have the right to make improvements, where such alterations are reasonably necessary to adapt the way to the granted use. Codman v. Wills, 331 Mass. 154 , 158 (1954) (and cases cited). However, any repairs or improvements may not burden the servient estate “to a greater extent than was contemplated or intended at the time of the grant.” Doody, 315 Mass. at 133. Plaintiff testifies that he has, in the past, undertaken, at his own expense, to fill potholes and grade the road. Accordingly, I rule that to the extent that the Plaintiff has the right to use the Easement, he may maintain the road where the disrepair of the road threatens its usability as a way for foot and vehicle traffic. However, the Easement expressly states that it is “a right of way to pass and repass.” Such a right for access does not require the laying of utility lines. In addition, the Easement is expressly located over the “dirt road” for access to the Lakewood Subdivision. This route has been used since 1981 without need of a paved surface, and the dirt road was a sufficient surface for D.W. White Construction company trucks to service a gravel pit prior to that time. Plaintiff has submitted no evidence that his full use and enjoyment of the Easement requires the laying of utility lines or paving the road on Defendants’ Property, and therefore, I further rule that the Plaintiff has no right to make such improvement, at this time.

Plaintiff argues lastly that while Defendants have the right to relocate the Easement, they may do so only if the relocation is not inconsistent with Plaintiff’s easement rights. This is, in fact, the law. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Moreover, the parties agreed to this right, expressly, in the 1981 Deed. Accordingly, I rule that Defendants have the right to relocate the Easement so long as the Easement as relocated continues to serve the purpose of providing access to and from the Lakewood Property.

CONCLUSION

For the foregoing reasons, this court concludes that while Plaintiff’s Lakewood Property holds a right to use the Easement over the Defendants’ Property for access to and from those lots, he does not have such a right to access his property at 2 Upton Street. Two Upton Street is not part of the Lakewood Subdivision and not part of the dominant estate to the Easement created on November 30, 1981. The court further concludes that the dirt road running over the Defendants’ Property is of sufficient width for the full use and enjoyment of the Easement. In addition, the Plaintiff has the right to maintain the Easement to the extent that the disrepair of the road threatens its usability as a way for foot and vehicle traffic; however, this does not include improvements to the road by way of paving of or laying of utility lines along the road. Finally, I conclude that Defendants have the right to relocate the Easement so long as the relocation does not interfere with the Plaintiff’s easement rights and provided it complies with the criteria set forth in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004).

Judgment to issue accordingly.

Charles W. Trombly, Jr. Justice

Dated: August 18, 2009