MISC 02-281233

December 4, 2009


Trombly, J.


This action was filed by Beverly Fallon on May 22, 2002, seeking a declaratory judgment, pursuant to G. L. c. 231A, regarding her rights in a parcel of land in Southborough, specifically in an "Existing 30' wide Right of Way" shown on a Plan of Land dated October 23, 1986, recorded at the Worcester District Registry of Deeds in Plan Book 636, Plan 3 ("the Plan"). A copy of the Plan is attached. Plaintiff is the owner of Lot 28C as shown on the Plan, while Defendant Beth Harding owns Lot 28D. [Note 1]

On April 16, 2003, Plaintiff filed a motion seeking equitable relief in the form of an injunction. In this document, Plaintiff alleged that the water servicing the structure on her property, which emanated from a well on Defendant's land, had been turned off by Ms. Harding or her agent in violation of an agreement entered into on February 5, 1999, between Plaintiff, Defendant, and Ray B. Davis, the prior owner of both Plaintiff's and Defendant's properties. Plaintiff argued at the hearing that the agreement compelled Harding to continue supplying water to the Fallon and Davis property, that a gentleman then residing at the Fallon property had been forced to live there without running water, and that the presence of water would soon become even more important because members of the Fallon family intended to move into the house and reside there in the near future. Defendant opposed the granting of an injunction, pointing out that the agreement provided also that the obligation of Harding to provide water would cease once "Fallon and/or Davis connected their property into the Town's municipal water system." The application for injunctive relief was denied by the court on April 29, 2003 upon the filing of an affidavit from the head of the Town's Water Department certifying that Davis had, in fact, tied into the system and that town water was also available to Plaintiff if she chose to take it.

There was no further activity on the case for several years with the exception of Plaintiff's counsel seeking and receiving permission to withdraw. Plaintiff(s Motion for Summary Judgment, which had been filed on October 31, 2002, was not acted upon while the court and parties waited for Ms. Fallon to retain new counsel.

On June 18, 2009, after several years of inactivity, the court scheduled a status conference for August 4, 2009, and gave notice thereof to the Plaintiff and to counsel for the Defendant. The conference took place as scheduled on that date. Present were Alexis Fallon, Esquire, Plaintiff's daughter and a member of the bar, and Attorney William Pezzoni, counsel for Ms. Harding. It was agreed that the case would be decided on the pending Motion for Summary Judgment, and both parties were given a month to file additional memoranda in support of or in opposition to the motion. A memorandum was filed by Attorney Pezzoni, but no additional documents were received from Plaintiff or her counsel.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976). Where appropriate, summary judgment can be granted against the moving party. Id. Based on the record before me, I find that the following facts are not in dispute and justify entry of judgment in favor of the Defendant:

1. Ray and Eleanor Davis purchased 57 acres of land off of Breakneck Hill Road in Southborough in the late 1940s. Fourteen (14) acres of this land were located on the easterly side of Breakneck Hill Road. Davis used this portion and buildings he constructed thereon for several different commercial and rental purposes throughout the years. Plaintiff and Defendant currently own portions of the 14 acre parcel, including buildings built thereon by Davis.

2. Davis ran into financial problems in the late 1970s and early 1980's and was not able to pay his real estate taxes to the Town of Southborough. In June of 1980, he sold a portion of the fourteen acre parcel to the Town and granted the Town a thirty (30) foot wide right of way to access that property over remaining Davis land. In 1986, two plans were prepared and recorded which depict the premises as Lots 28, 28A, 28B, 28C and 28D. One of these plans also shows the location of the right of way. A copy of this plan is attached.

3. In the 1990s, the Fallons leased and utilized portions of the Davis land. Defendant Beth Harding began utilizing the building on Lot 28D for business purposes in the late 1990s.

4. On or about January of 1999, Fallon and Harding began negotiating to purchase their respective lots from Davis. Harding purchased Lot 28D and Fallon purchased Lot 28C. All parties were represented by counsel and, through their attorneys, negotiated and entered into an agreement pertaining to a well located on the property being purchased by Harding. This well, while located on Harding's Lot 28D, also supplied water to the parcel being purchased by Fallon (Lot 28C) and to property being retained by Davis on the opposite side of Breakneck Hill Road.

5. The well agreement provided that once Harding acquired her property, it would be her obligation to pay all costs and expenses relating to operation and maintenance of the well, and to continue to supply water from the well "not only to the HARDING property, but also to the FALLON and DAVIS properties." The agreement further provided that Harding's obligation to supply water "shall continue in force and effect until such time as either FALLON and/or DAVIS connect their property into the Town's municipal water system, or the Town of Southborough requires any of said three properties to be connected to the Town's municipal water system." (emphasis added). It provided also that an affidavit from the town water department confirming that either the Davis or Fallon property is serviced by Town water would terminate the obligation of HARDING to supply water. The parties to the agreement acknowledged therein that town water already existed in Breakneck Hill Road where it abutted the properties.

6. The deed of Lot 28D from Davis to Harding retained for Davis a thirty foot-wide right of way for him to bring his cows across the Harding property to graze on town owned land. No such right was granted to Fallon to cross over Lot 28D as all lots had adequate street frontage.

7. On July 25, 2002, Davis executed and caused to be recorded at the Worcester District Registry of Deeds a document titled "Clarification of Easement and Right of Way". In this instrument, Davis stated that the easement referenced in his deed of Lot 28D to Beth Harding was reserved only for him as grantor in that deed, that "the intent of said access easement and right of way was and is that said rights shall be over and across that portion of the 30' wide right of way depicted on the northerly side of Lot 28D on Plan recorded in Plan Book 636, Plan 3," and that it was intended that the access easement and right of way "shall terminate at the time of my death." Ray Davis died on June 28, 2005.


Plaintiff filed this action seeking to establish that she has rights to use the way across Defendant's property to access Lot 28C. She contends that parking her vehicles on Breakneck Hill Road is not feasible and is, in fact, very dangerous. Fallon further alleges that Defendant Harding caused a stockade fence to be erected in 2001, thus creating a barrier within the thirty-foot Way which has precluded Fallon and her guests and invitees from accessing the driveway/parking area on Lot 28C. Finally, she contends that Davis intended to grant her an easement to use the way.

Defendant denies that Plaintiff has any such rights, pointing out that Plaintiff has direct access to her lot from Breakneck Hill Road. Defendant also contends that neither Plaintiff's nor Defendant's deed establish such an easement and that any use by Plaintiff of the way has not been carried on long enough to have established a prescriptive easement. Defendant further contends that any easement rights referred to in the deeds relate only to the right given to or retained by Davis, allowing him to take his cattle across the Harding property to graze on town-owned property. Finally, Defendants note the "clarification" executed and recorded by Davis in 2002, and the fact that Mr. Davis passed away in 2005.

"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. Condominium Assn v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). Easements can be established and come into being by express grant, by prescription, by implication and estoppel. See Silverlieb v. Hebshie, 33 Mass. App. Ct. 911 (1992). Easements can be implied from prior use. See Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953). They can also be implied from necessity. See Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 76-78 (2004). Easements can also be created by estoppel. See Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 477 , 481 (1989).

A prescriptive easement can only be established if the one claiming the easement proves use of the right of way openly, continuously, adversely, and notoriously for a period of twenty years. G.L. c. 187, ยง 2. The burden of proving adverse possession or the existence of a prescriptive easement is on the person claiming title or that easement. Lawrence v. Town of Concord, 439 Mass. 416 (2003). In the present case, Plaintiff has not used the claimed right of way for the required twenty year period. I therefore rule that she has not established the existence of a prescriptive easement. It has long been established that if any of the essential elements of adverse possession or prescription is left in doubt by claimant(s proof, the claimant cannot prevail. See Mondonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 (1968).

Mr. Davis executed and caused to be recorded in 2002 an instrument purporting to "clarify" his intentions at the time he conveyed the lots to Plaintiff and Defendant. In this document, he stated that he never intended to convey to Fallon a right to use the thirty-foot wide right of way, that the way was intended only as a means of allowing his cattle to travel from his land, across the Harding parcel, to the town-owned land for grazing, and that he intended the easement to expire upon his death. Even without this document, however, it is clear to the court that Ms. Fallon was never granted a right to use the way and that it was not necessary or implied that she had such an easement. Her parcel has adequate frontage on and access from Breakneck Hill Road.

For all of the above reasons, it is

ORDERED and ADJUDGED that Plaintiff(s Motion for Summary Judgment is DENIED and that Judgment be granted instead to Defendant; and it is further

ORDERED and ADJUDGED that the Fallon property, shown as Lot 28C, does not have the benefit of an appurtenant right to use the 30' wide right of way across Lot 28D; and it is

ORDERED and ADJUDGED that the 1999 Agreement obligating Harding, as owner of Lot 28D, to provide well water to the Davis and Fallon properties was limited as to time and is no longer in effect; and it is further

ORDERED and ADJUDGED that the Complaint be, and is hereby, dismissed with prejudice.

Judgment to enter accordingly.

By the Court. (Trombly, J.)

Attest: Deborah J. Patterson


Dated: December 4, 2009


[Note 1] After the action was filed, the Complaint was amended to substitute M.G.R. Realty Trust, of which Beverly A. Fallon is the Trustee, as Plaintiff. Title to Defendant's property is now in the name of Beth Harding, LLC. The pleadings have been amended accordingly.