WILLIAM W. LATIMER, IV vs. KENNETH A. GRADY, as TRUSTEE OF SCARGO LAKE INVESTMENT TRUST, BARBARA J. ROMANO, ROBERT MORIN and CYNTHIA A. MORIN, JAMES A. RANSTROM and ANNE F. RANSTROM, and JANE S. CHAMBERLAIN

Plaintiff filed his Verified Complaint on August 9, 2004, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to rights in a right-of-way (the “ROW”) across his property located at 946 Main Street, Dennis, Massachusetts (“Plaintiff Property”). [Note 1] Defendant Kenneth A. Grady (“Grady”), as Trustee of Scargo Lake Investment Trust (“Scargo Lake”), filed his Answer and Counterclaim on September 30, 2004, alleging prescriptive rights across the ROW. [Note 2] Plaintiff filed his Reply to Counterclaim on September 28, 2004. [Note 3]

Plaintiff filed his Motion for Summary Judgment on October 1, 2008, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavits of Jane Pine Wood, Esq., Russell R. Tomasetti, Barry W. Steele, William W. Latimer, IV, E. James Veara, Esq., and Paul V. Benatti, Esq. On November 10, 2008, Scargo Lake filed its Opposition, together with supporting memorandum, Appendix, Affidavits of Parker Turner, Kenneth Grady, David J. Drumm, James A. Ranstrom, Anne Ranstrom, Lisa L. Morales, Philip J. Agnello, Edmund J. Massa, Jr., Michelle Cranska, Edward R. Chatelain, and Diane H. Paradis, and Motion to Strike Portions of Affidavits of Jane Wood and William Latimer. Plaintiff filed his Reply on December 12, 2008. A hearing was held on all motions on January 12, 2009, at which time all motions were taken under advisement. [Note 4]

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 Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. By deed dated November 15, 1934, Paul Wilcox and Florence A. Wilcox (the “Wilcoxes”) acquired title to property located on what is now Main Street (Route 6A) in Dennis, including Plaintiff Property and land owned by Defendants.

2. Paul Wilcox, Jr. obtained title to the above-referenced property from the Wilcoxes (his parents) and had a plan prepared, titled “Plan of Land of Paul Wilcox, Jr. in Dennis,” dated December 10, 1949, and prepared by Newell B. Snow (the “1949 Plan”). [Note 5]

3. By deeds dated February 28, 1949, Paul Wilcox, Jr. deeded Lots A-1 and C-1 as shown on the 1949 Plan to Walter Douglas and Doris Douglas (the “Douglases”). [Note 6] The deed to lot A-1 (the “1949 Deed”) created the ROW and states as follows:

Together with the perpetual right of way for all purposes 20 feet wide over the Northwesterly section of Lot B-1, from State Highway Route #6, Northwesterly along the northeasterly boundary of Lot B-1, to lot A-1, as shown on [the 1949 Plan].

4. By deed dated February 28, 1949, Paul Wilcox, Jr. deeded Lot B-1 as shown on the 1949 Plan to the Wilcoxes. The deed to Lot B-1 states as follows:

Excepting from said grant a perpetual right of way for all purposes 20 feet wide as appurtenant to Lot A-1 as shown on [the 1949 Plan], from State Highway Route #6, Northwesterly, along the northeasterly boundary of Lot B-1 to Lot A-1.

5. By deed dated September 8, 1952 (the “1952 Deed”), the Wilcoxes conveyed to the Douglases the northerly portion of Lot B-1 (“Lot B-1A”), leaving the southerly portion of Lot B-1 (“Lot B-1B”) in their name. [Note 7] The 1952 Deed referenced the 1949 Plan.

6. By deed dated July 16, 1953 (the “1953 Deed”), the Wilcoxes conveyed to Melvin Lamb and Elizabeth J. Lamb Lot B-1B. The 1953 Deed referenced the 1949 Plan and also stated, “[t]he above described premises are conveyed subject to a 20 foot right of way for all purposes running along the Easterly side of the granted premises as shown on the above mentioned plan.”

7. Plaintiff is the current owner of Lot B-1B (Plaintiff Property) by deed of Barry W. Steele and Kelley J. Steele (the “Steeles”) dated August 6, 2003. [Note 8] This deed referenced the 1949 Plan and also referenced the deed from the Tomasettis to Four Chimneys, which specifically was conveyed subject to the ROW. [Note 9]

8. Carol L. West, as Trustee of the Bayside Realty Trust (“Bayside Realty”), took title to Lots A-1, B-1A and C-1 by deed dated April 7, 1995. [Note 10] By deed dated May 26, 2004, Bayside Realty conveyed Lots A-1, B-1A and C-1 to Kenneth A. Grady, as Trustee of the Janus Investment Trust (“Janus”).

9. By deed dated July 16, 2004, Janus conveyed Lot A-1 to Scargo Lake (the “Scargo Lake Deed”). This deed states as follows:

Subject to and with the benefit of all rights, reservations, easements and restrictions of record insofar as the same are in force and applicable.

Grantor specifically grants to grantee, its heirs, successors and assigns, and not in limitation thereof, the owners, assignees, invitees and guests of those four condominium units created by Master Deed of Scargo Lake Condominium, dated July 16, 2004, recorded herewith in Book 18837 Page 41, the perpetual right to use for all ways for which ways are used in the Town of Dennis, including access, egress and installation of utilities, that 20' Easement shown on [plan titled “Condominium Plan of Land Scargo Lake Condominium #952 Route 6A in Dennis Massachusetts (Barnstable County)” dated July 15, 2004, and prepared by BSC Group (the “2004 Plan”)] recorded herewith Plan Book 592 Page 41 + 42, which easement [the “2004 Easement”] is shown on said plan and designated “20' Access and Utility Easement “A””.

The Scargo Lake Deed also referenced the 1949 Plan.

10. On the same day, Scargo Lake filed the Master Deed of the Condominium dated July 16, 2004 (the “Master Deed”), with the Barnstable County Registry of Deeds relative to Lot A-1. [Note 11] Section 9 of the Master Deed stated as follows:

Access. Access and egress from Route 6A to the premises is by means of Easement across [Lot C-1], which Easement is as shown on [the 2004 Plan] and is therein designated “20' Access and Utility Easement A”. This Easement is set forth in [the Grady Deed].

Reference is also made to a 20' wide easement (“Secondary Easement” herein) described in Exhibit A and shown as “easement area B”, “existing driveway” and “existing driveway access” on [the 2004 Plan].

Declarant specifically reserves the right to restrict, limit or terminate said “Secondary Easement”, without the consent of any unit owner or mortgagee, and the Trustee of Scargo Lake Condominium Trust is hereby authorized to execute any such required instrument.

11. Scargo Lake conveyed Unit 2 of the Condominium to Eric N. Sheffer and Lisa L. Morales by deed dated August 10, 2004. [Note 12] Scargo Lake conveyed Unit 3 of the Condominium to James A. Ranstrom and Anne F. Ranstrom by deed dated August 27, 2004. Scargo Lake conveyed Unit 1 of the Condominium to Jamie F. Moran and Tina M. Moran by deed dated September 1, 2004. [Note 13]

12. By Easement dated January 12, 2005 (the “2005 Easement”), Janus deeded to Scargo Lake and the Condominium Owners

A perpetual right of way to use for all purposes 20 feet wide over so much of the Northeasterly section of Lot B-1, from State Highway Route #6, Northwesterly along the northeasterly boundary of Lot B-1, to Lot A-1 as is owned by Grantor, as shown on [the 1949 Plan].

This instrument is intended to confirm the perpetual right of way described in [the 1949 Deed].

13. By deed dated January 12, 2005, Janus conveyed Lots C-1 and B-1A to Thomas J. Hester. By deed dated February 28, 2005, Thomas J. Hester conveyed Lots C-1 and B-1A to Thomas J. Hester and David A. Sears. By deed dated June 17, 2005, Thomas J. Hester and David A. Sears conveyed Lots C-1 and B-1A to Philip J. Agnello (“Agnello”). All of these deeds included the perpetual right to use both the ROW and the 2004 Easement.

14. Scargo Lake conveyed Unit 4 of the Condominium to Sean A. Fittz by deed dated August 25, 2005. Sean A. Fittz conveyed Unit 4 to Jane Chamberlain by deed dated August 30, 2006.

15. Utility poles and wires run from Main Street across Lot B-1B to service the house on Plaintiff Property. The poles and wires continue in a northerly direction across Lot B-1B and Lot B-1A to Lot A-1 and serve the four condominium units. There is no recorded easement to the utility company for such service.

16. Jane Wood lives at 956 Main Street, Dennis. Her property is located directly to the east of Lots B-1B, B-1A, and A-1. Her family took title to this property by deed from Cora A. Howes dated September 12, 1941.

17. In 2004, Scargo Lake applied for a permit (the “Curb Cut Application”) to make a curb cut at the intersection of the ROW and Main Street. Scargo Lake filed a plan dated May 12, 2004 with the Department of Public Works in this regard.

18. In 2005, Plaintiff placed a chain across the ROW, preventing access to Lot A-1 from Main Street, and planted trees and bushes in the ROW. The ROW is currently covered with bushes and shrubs and contains tall trees.

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I. Motion to Strike.

Defendants have filed a Motion to Strike Portions of the Affidavits of Jane Pine Wood and Plaintiff. With respect to the Wood Affidavit, Defendants argue that paragraphs 9, 10, and 11 should be stricken. This court agrees that paragraph 9 should be stricken as it is hearsay. This court shall also strike paragraphs 10 and 11 of the Wood Affidavit as the affidavit is (1) not clear as to which portion of the ROW is “thickly vegetated” and “in its natural state,” (2) vague and ambiguous as to whether the ROW “was ever cleared,” and (3) provides a legal conclusion as to whether the ROW can “be used for access.”

Relative to Plaintiff’s Affidavit, this court agrees that paragraphs 11-17 contain hearsay; that paragraph 22 is speculative; and that paragraph 47 is based on a plan not in existence and also provides a conclusion which Plaintiff has no basis to give. This court shall not strike paragraphs 40, 41, or 44 of Plaintiff’s Affidavit as they contain statements of a party (Grady, as Trustee of Scargo Lake) and are, thus, not inadmissible hearsay.

As a result, Defendants’ Motion to Strike Portions of the Affidavits of Jane Pine Wood and Plaintiff is ALLOWED IN PART, consistent with the following: paragraphs 9, 10, and 11 of the Wood Affidavit are hereby stricken; paragraphs 11-17, 22, and 47 of Plaintiff’s Affidavit are hereby stricken.

II. Rights in the ROW.

Plaintiff acknowledges that Lot A-1 had a deeded right to use the ROW across Lot B-1, based on the 1949 Deed. Plaintiff argues, however, that such deeded right has been lost due to merger and abandonment. Defendants argue that the ROW was not lost by merger or abandonment and also contend that they have obtained prescriptive rights in the ROW, as well as an easement by estoppel. [Note 14] I shall examine each of these issues in turn. [Note 15]

A. Merger/Impossibility.

The application of the doctrine of merger requires two elements. One, “the unity of title between the affected parcels must be of a permanent and enduring estate, an estate in fee in both, because ‘the merger of the easement . . . arises from that unlimited power of disposal.” Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008) (internal quotations omitted). This doctrine’s second required element insists that “unity of title only occurs when two ownership interests are coextensive,” meaning that “the type of ownership interest being united must be the same; a fee simple absolute interest, for example, cannot be merged with an interest in joint ownership to extinguish an easement.” Id.

Plaintiff directs this court to the 1952 Deed, by which Lot B-1 was split into Lots B-1A and B-1B, and Lot B-1A was deeded to the owner of Lot A-1 (the Douglases). Plaintiff argues that this conveyance resulted in a merger of Lots A-1 and B-1A, thereby nullifying, or making impossible, Lot A-1’s easement rights in the ROW. Defendants claim that merger does not apply to the facts of this case, as the 1952 Deed failed to bring all of the benefits and burdens of the ROW into common ownership.

Plaintiff’s argument in support of merger is not compelling, as the 1952 Deed united only a small portion of the title to the ROW (the portion running across Lot B-1A), and the balance of the ROW remained in separate ownership. The portion of the ROW across Lot B-1B was never merged. See id. at 497 (stating that merger “requires that a servitude terminates ‘when all the benefits and burdens come into a single ownership.’”) (quoting RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 7.5 (2000)). Moreover, the 1952 Deed referenced the 1949 Plan, which showed the ROW, and the 1953 Deed (and all subsequent deeds of Lot B-1B) states that such lot is subject to the ROW. From 1952 until 2004, the ownership of Lots A-1, C-1, and B-1A remained in common ownership, and every deed in that chain of title referenced the right of Lot A-1 to use the ROW. [Note 16]

Plaintiff also argues that in 2004, the ownership of Lot A-1 and Lot B-1A was split by means of the Scargo Lake Deed, and at that time the ROW was lost because the Scargo Lake Deed did not specifically grant rights in the ROW to Lot A-1, and as a result Lot A-1 no longer had the right to use the portion of the ROW over Lot B-1A. [Note 17] The Scargo Lake Deed, however, stated that the conveyance of Lot A-1 was subject to both rights of way of record (“the rights, reservations, easements and restrictions of record”) and the 1949 Plan, both of which clearly establish the right of Lot A-1 to use the ROW. Moreover, Defendants point out that six months later, the owner of Lot B-1A specifically conveyed rights in the ROW to Lot A-1 through the 2005 Easement, thereby reestablishing the ROW, if it was ever lost. All subsequent deeds to Lot B-1A and C-1 reference the right to use the ROW.

As a result of the foregoing, I find that Defendants’ rights in the ROW over Plaintiff Property were not lost through merger or impossibility.

B. Abandonment.

An easement may be deemed abandoned if evidence shows an “intention [by the dominant estate] never again to make use of the easement in question.” Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). While evidence of mere nonuse of an easement, by itself, is insufficient to establish the intent of abandonment, Willets v. Langhaar, 212 Mass. 573 , 575 (1912), case law indicates that the “failure to protest acts which are in_consistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.” 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158-59 (2009). Plaintiff’s burden to show abandonment is significant as abandonment requires facts that show “a present intent to relinquish the easement or a purpose inconsistent with its further existence.” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (quoting Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 272 (1913)).

Plaintiff argues that the facts of the case at bar warrant a finding of abandonment. Specifically, Plaintiff looks to the status of the ROW is a paper street, overgrown with vegetation. Additionally, Plaintiff points to the nonuse of the ROW by Scargo Lake (and its predecessors) for a sixty year period in addition to the existence of the driveway on Lot C-1, which has been used as access instead of the ROW.

Plaintiff, however, cannot show either nonuse or intent to abandon. There are conflicting affidavits as to use of the ROW over the years. Plaintiff has produced several affidavits that indicate the ROW was not used as an access for Lot A-1 since at least 1992. Defendants have produced a number of affidavits that indicate that from at least 1970 to the present time the access from Route 6A to Lot A-1 was a loop road running across Lot C-1 to Lot A-1, and then back to Route 6A through a portion of the ROW. There also appears to be a dispute as to when the ROW was passable because of dense vegetation. Notwithstanding the foregoing (the resolution of which would require a trial), nonuse alone, regardless how long, is not enough to show abandonment. Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958). Abandonment requires a showing of intent, Fontanella, 74 Mass. App. Ct. at 158-59, which the summary judgment record does not reveal. The ROW’s vegetation and Lot A-1’s alternate access over Lot C-1 are insufficient to convince this court that Defendants (or their predecessors) intended to abandon the ROW. [Note 18]

As a result of the foregoing, I find that Defendants (or their predecessors) have not abandoned their rights in the ROW over Plaintiff Property.

C. Easement by Prescription.

Defendants argue that they have obtained prescriptive rights to use the ROW, and they have provided a number of affidavits of persons who allege use of the ROW since at least 1970. [Note 19] Plaintiff, however, has filed affidavits of several people who state that the ROW has not been used since 1992, and that the few times it was used was with permission of the then owner of Plaintiff Property. As a result of the foregoing, there are disputed material facts relative to the prescriptive rights issue which cannot be resolved through summary judgment. However, as discussed, supra, a trial will not be necessary as this court has found the ROW was a deeded right which has not been lost through merger or abandonment.

III. Utilities.

Plaintiff argues that there is no recorded easement for utility poles and wires that cross Lot B-1B and serve the house on Lot B-1B and the condominium units on Lot A-1. Plaintiff asserts that the utilities’ predecessors were allowed to place poles and wires over Lot B-1B, but that such rights were in the form of a license, rather than an easement. [Note 20] While Plaintiff does not contest the poles, wires, or related equipment that service his home, he does object to the northward extension of the utilities that service Lot A-1. Plaintiff concludes that he has revoked the utility license that benefits Lot A-1 and that the Condominium Owners must use Lot C-1 for utility service to Lot A-1. Defendants do not make any argument in this regard.

“A license merely excuses acts done by one on land in possession of another that without the license would be trespasses, conveys no interest in land, and may be contracted for or given orally.” Baseball Publ’g Co. v. Bruton, 302 Mass. 54 , 55 (1938). “It is plain an oral agreement to permit . . . a passage over land of the promisor to land of the promisee creates no enforceable interest in the land; and is at most a revocable license to use and enjoy a privilege, defined and limited in the terms of the agreement.” Mason v. Albert, 243 Mass. 433 , 437 (1923). A license is freely revocable at the will of the promisor. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959).

The summary judgment record does not reveal an express utility easement over lot B-1B for the benefit of Lot A-1. However, as the utility company that provides the service in question is not a party to this case, this court cannot make a binding determination with respect to whether such utilities are a revocable license. Moreover, Plaintiff’s argument that the utilities servicing Lot A-1 must be moved to Lot C-1 appears to overlook the existence of the ROW, which is not limited by its plain language, but rather confers upon Lot A-1 a “perpetual right of way for all purposes . . . .” [Note 21]

As a result of the foregoing, I DENY Plaintiff’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: February 24, 2010