JUDITH M. POLCHLOPEK vs. COMMONWEALTH OF MASSACHUSETTS, ACTING BY AND THROUGH ITS DIVISION OF FISHERIES AND WILDLIFE, and STEPHEN J. WEINER

Plaintiff filed her unverified Complaint on March 9, 2007, seeking declaratory judgment, pursuant to G. L. c. 231A, against Defendants Commonwealth of Massachusetts, acting by and through its Division of Fisheries and Wildlife (the “Commonwealth”) and Stephen J. Weiner (“Weiner”) (together, “Defendants”), relative to an easement by implication over Woods Road. [Note 1] The Commonwealth filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction on April 17, 2007, together with supporting memorandum. [Note 2] On May 17, 2007, Plaintiff filed her Opposition to the Motion to Dismiss. The Commonwealth withdrew its Motion to Dismiss and filed its Answer to Plaintiff’s First Amended Complaint on October 4, 2007.

The Commonwealth filed its Motion for Judgment on the Pleadings on November 9, 2007, together with supporting memorandum and Statement of Material Facts. On December 10, 2007, Plaintiff filed her Cross-Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, together with supporting memorandum and Statement of Additional Facts and Appendix containing Affidavits of Judith Polchlopek and William Morse (“Morse”) (surveyor). A hearing on the Commonwealth’s Motion for Judgment on the Pleadings and Plaintiff’s Cross-Motion for Judgment on the Pleadings was held on February 4, 2008. [Note 3] By decision dated February 20, 2009 (“Decision 1”), this court found that the Commonwealth was protected under the doctrine of sovereign immunity from suit by Plaintiff relative to her declaratory judgment action on the issue of easement by implication, and that Plaintiff had standing to bring her quiet title action relative to the status of the implied easement.

The Commonwealth filed its Motion to Reconsider on February 25, 2009, and Plaintiff filed her Response on March 30, 2009. At a hearing on this motion on April 2, 2009, the Commonwealth withdrew its motion and this court scheduled a summary judgment hearing on Plaintiff’s quiet title action. On June 10, 2009, the Commonwealth filed its Cross-Motion for Summary Judgment, together with supporting memorandum, Affidavit of George S. Norton (“Norton”) (title examiner), and Motion to Strike Plaintiff’s Appendix. Weiner filed his Cross-Motion for Summary Judgment on June 16, 2009, together with supporting memorandum incorporating the Commonwealth’s memorandum. Plaintiff filed her Opposition to Defendants’ cross-motions on July 27, 2009, and Affidavit of Ellyn H. Hurd, Esq. on September 11, 2009. A hearing on all motions was held on November 20, 2009, at which time all motions were taken under advisement. Weiner did not appear at the summary judgment hearing.

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

1. Plaintiff owns a parcel of undeveloped land containing approximately 22.97 acres in Dartmouth, Massachusetts (“Plaintiff Property”). [Note 4] Plaintiff Property is shown as Lot 6 on Dartmouth Assessor’s Map 17 (“Map 17”). Plaintiff Property has no frontage on Division Road. Plaintiff purchased Plaintiff Property from Stanley Polchlopek by deed dated November 21, 1994, and recorded with the Bristol County Registry of Deeds, Southern District (the “Registry”) at Book 3394, Page 42. Such deed stated:

Together with any and all privileges and appurtenances belonging thereto, and all other rights of way, if any, appurtenant to said land, whether arising from deed or prescription to the extent the same may be in force and applicable.

2. Weiner owns a parcel of registered land (Certificate of Title No. 20854 filed in the Bristol County South Registry District of the Land Court) containing 7.2 acres and located at 490 Division Road, Dartmouth (the “Weiner Property”). [Note 5] The Weiner Property is shown as Lot 1 on Map 17.

3. The Commonwealth acquired ownership to a parcel of land containing approximately 473 acres on Division Road in Dartmouth (the “Commonwealth Property”) by an Order of Taking dated December 23, 1999, and recorded with the Registry in Book 4597, Page 317 (the “Order of Taking”). The Order of Taking states, in part: “[f]urther excepted from the rights herein taken are 1) all rights-of-way of record now lawfully still in force and in or upon said area or areas hereby taken, . . .” Plaintiff Property abuts the rear of the Weiner Property and the Commonwealth Property. [Note 6]

4. An unpaved way approximately nine feet in width (“Woods Road”) runs from Division Road through the Commonwealth Property and across a corner of the Weiner Property to Plaintiff Property. Woods Road is shown on the 1952 Plan.

5. In 1792, Giles Slocum, conveyed a parcel of land, which included the Commonwealth Property, to Ichabod Cushman (“Cushman”) by a deed (the “1792 Deed”) that was not recorded with the Registry. Three years later Cushman provided Giles Slocum a mortgage on this parcel, which was recorded with the Registry at Book 13, Page 514. Cushman deeded this parcel to Wanton Brightman in 1798, which deed was recorded with the Registry at Book 14, Page 527.

6. In 1817, Henry Slocum deeded a portion of the Homestead (containing 350 acres) to Bradford Howland. By deed dated March 25, 1833, and recorded with the Registry at Book 138, Page 365, Bradford Howland deeded this portion of the Homestead to Samuel Barker. Samuel Barker created Plaintiff Property from this portion of the Homestead by deed to Jeremiah Brightman dated February 28, 1834, and recorded with the Registry at Book 150, Page 219.

7. In 1904, Abner Brightman (a predecessor in title to the Commonwealth) conveyed a parcel of land (Lot 5 on Assessor’s Map 17) to Patrick Cummings recorded with the Registry at Book 240, Page 267. Such deed ( the “1904 Deed”) stated,

Said lot is subject to a right of way as follows, from the east end of said lot Northerly as the path now is partly upon grantor’s premises, to the road which is the dividing line between the Town of Dartmouth and Westport. Also a right of way is hereby given to the grantee to pass and repass from the west end of said lot over the present cart path through the grantor’s land to the aforesaid road.

8. A deed of Plaintiff Property from Jeremiah G. Brightman to Frederick A. Shores dated May 16, 1919, and recorded with the Registry at Book 475, Page 350 (the “1919 Deed”), contained the following language: “[w]arranting and defending the right of way leading from [Division Road] to said land.”

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The Commonwealth argues that the doctrine of sovereign immunity bars Plaintiff’s claim of an easement by implication in Woods Road by means of an action to quiet title, that (in the event that sovereign immunity is not applicable) the Order of Taking extinguished Plaintiff’s alleged easement by implication in Woods Road because an easement by implication is not “of record,” and, in the alternative, that there are material issues of fact relative to Plaintiff’s alleged easement by implication requiring a trial. I shall address each of these issues in turn.

The Commonwealth’s Motion to Strike.

Prior to addressing the merits of the parties’ summary judgment motions, this court must first address the Commonwealth’s Motion to Strike, in which it seeks to strike certain documents in Plaintiff’s Appendix relative to the inclusion of recorded documents which were not certified. In her Opposition to the Commonwealth’s Cross-Motion, Plaintiff argues that such documents consist of deeds that were recorded in the Registry and copies of maps and atlases commonly relied on by title examiners and historians. [Note 7] This same issue was raised at a status conference held on July 31, 2009, during which this court suggested that Plaintiff file an attorney’s affidavit of authentication. Plaintiff responded with such an affidavit of counsel stating that the contested documents were recorded with the Registry. As a result, I shall deny the Commonwealth’s Motion to Strike with respect to those documents in Plaintiff’s Appendix that are of record.

However, not all of the exhibits to which the Commonwealth objects are recorded. The Commonwealth also objects to the admissibility of several maps purporting to show Woods Road and a copy of an atlas claimed to be from 1856, which Plaintiff argues are authenticated as “ancient documents.” In order for a document to be authenticated by age, it must be (1) at least thirty years old, (2) look genuine; and (3) have been kept where one would expect it have been. See In re Butrick, 185 Mass. 107 , 111 (1904); accord Mass. Guide Evid. § 901(b)(8) (Revised Preliminary Draft Feb. 2008). As Plaintiff does not provide this court with a sufficient foundation explaining these factors, I shall allow the Commonwealth’s Motion to Strike with respect to such documents.

In light of the above, the Commonwealth’s Motion to Strike is ALLOWED IN PART, consistent with the following: the two maps showing the location of Woods Road (exhibits 7 and 8 to Plaintiff’s Appendix) and the copy of the 1856 Atlas (exhibit 18 to Plaintiff’s Appendix) are hereby stricken. All other documents in Plaintiff’s Appendix are admitted into the summary judgment record; however, as this court noted at the summary judgment oral argument, admissibility and weight are separate issues. This court further notes that, as a practical matter, the removal of such documents from the record is immaterial to this case’s ultimate disposition.

Sovereign Immunity.

The Commonwealth alleges that Plaintiff’s quiet title action is proscribed by the doctrine of sovereign immunity. The Commonwealth asserts that, consistent with Lopes v. Commonwealth, 442 Mass. 170 (2004), the only relevant exceptions to the doctrine of sovereign immunity are those created by the Legislature, and the Legislature created an exception only through the registration or confirmation process, pursuant to G. L. c. 185, or a timely challenge to the eminent domain process under Chapter 79 of the General Laws. The Commonwealth also argues that it is not a “person” under G. L. c. 240, § 6, which states in part that

[i]f, in a civil action . . . in the land court, to quiet or establish the title to land situated in the commonwealth or to remove a cloud from the title thereto, it is sought to determine the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth, or who cannot be actually served with process and made personally amenable to the judgment of the court, such persons may be made defendants . . . .”

In this action Plaintiff claims an easement by implication in Woods Road and asserts that G. L. c. 240, §§ 6-10 are only procedural requirements for application to an action to quiet title, and, thus, are not subject to the sovereign immunity doctrine. Moreover, Plaintiff cites case law from other states which hold that the doctrine of sovereign immunity does not apply to actions to quiet title. [Note 8] Finally, Plaintiff states that the Commonwealth has already admitted this court’s subject matter jurisdiction over [the quiet title action] in a registration case, and argues that denying the right to go forward on a quiet title action in the case at bar is a matter of form over substance.

As this court noted in Decision 1, in Lopes, the Supreme Judicial Court (“SJC”) articulated the doctrine of sovereign immunity:

Sovereign immunity bars a private action against a State in its own courts absent consent by the Legislature or abrogation of sovereignty by Congress acting under its Fourteenth Amendment powers. Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them. When that consent is granted, [the Commonwealth] can be impleaded only in the manner and to the extent expressed in the statute.

Lopes, 442 Mass. at 175-76 (internal quotations and citations omitted). [Note 9] In context of the instant matter, a review of G. L. c. 240, §§ 1-10 is instructive. Sections 1-5 are titled “Petition to Require Action to Try Title” and establish a cause of action whereby a party bringing the action can require an adverse claimant to carry the burden to go forward on the title issue. G. L. c. 240, § 5 states that “[t]he four preceding sections shall not apply to any property, right, title or interest of the commonwealth.” This language, however, does not follow sections 6-10, titled “Suits in Equity to Quiet Title,” which create a separate cause of action. Count II of Plaintiff’s Amended Complaint is an Action to Quiet Title, pursuant to G. L. c. 240, § 6. As such, the case at bar is governed by sections 6-10, not sections 1-5.

While Lopes reinforces that the doctrine of sovereign immunity is alive and well in the Commonwealth, it is also clear that “consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them.” Lopes, 442 Mass. at 175-76 (emphasis added). Moreover, “[a] basic tenet of statutory construction requires that a statute be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.” Wolfe v. Gormally, 440 Mass. 699 , 704 (2004) (internal quotation omitted). In order to give effect to G. L. c. 240, § 5, it appears that an action to quiet title (sections 6-10) is an exception to the doctrine of sovereign immunity by implication from the terms of the statute. [Note 10]

As a result of the foregoing, I find that the doctrine of sovereign immunity does not bar Plaintiff’s action to quiet title brought pursuant to G. L. c. 240, §§ 6-10.

Implied Easement and the Order of Taking.

Plaintiff does not claim an express grant of easement rights in Woods Road. Plaintiff does, however, assert an easement by implication in Woods Road, based on the assumption that her property, the Weiner Property, and the Commonwealth Property were formerly in common ownership. Plaintiff’s expert, William Morse, does not specifically state the common ownership of the land owned by the parties, though he implies that Giles Slocum was the common owner in the 1700s. [Note 11] The Commonwealth’s expert, George Norton, denies the common ownership, but does not address the Indentures in his analysis.

An implied easement (from prior use) arises when

land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part.

Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 656-57 (2005) (quoting Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985)). Stated differently,

[w]here during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication.

Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004) (citing Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953)). As the party asserting the implied easement, Plaintiff has the burden of proof to show such easement. See Reagan v. Brissey, 446 Mass. 452 , 458 (2006).

Plaintiff’s theory of easement by implication is that, by the 1792 Deed, Giles Slocum, the then owner of Plaintiff Property and the Commonwealth Property, deeded the Commonwealth Property to Cushman without retaining a right for Plaintiff Property to use Woods Road, thereby landlocking Plaintiff Property. The 1792 Deed, however, was neither a recorded deed nor a deed in Plaintiff’s chain of title. The summary judgment record does not appear to contain enough information to make determinations as to the existence of an easement by implication, even if it were applicable. Notwithstanding the foregoing, in the event that an easement by implication, even if proved, would be lost as a result of the Order of Taking, then a factual dispute relative to whether there was a common owner would be moot. As a result, I will first look at the legal argument of whether an easement by implication would be lost as a result of the Order of Taking.

The Order of Taking states as follows: “[f]urther excepted from the rights herein taken are 1) all rights-of-way of record now lawfully still in force and in or upon said area or areas hereby taken, . . .” The Commonwealth looks to the general rule that “an eminent domain taking in fee simple extinguishes all other interests in the subject property.” New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374 , 376 (1992). “In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate.” Id. The Commonwealth further argues that the easement by implication claimed by Plaintiff, even if proved, is not “rights-of-way of record” and is, therefore, not excepted from the Order of Taking. Plaintiff argues that the easement by implication is a right that arises “by deed,” and cites Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 392 (2005), in which the Appeals Court held that

Gobbi’s easement rights in the disputed way arise by implication or necessity, based on the presumed intention of the parties to the 1957 deeds. In that respect, we consider Gobbi to hold his rights in the way ‘by deed’ within the meaning of the statute [G. L. c. 187, § 5].” [Note 12], [Note 13]

This analysis has also been applied to an easement by estoppel in Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 439 (2006), where the Appeals Court stated, “[w]e see no reason why that rationale would not apply to an easement by estoppel. As noted above, the estoppel giving rise to such an easement occurs by virtue of the language in a deed of conveyance, which language refers to the way as a boundary.” The same rationale has not been applied to a prescriptive easement, where the easement was limited to the uses that created it. See Cumbie v. Goldsmith, 387 Mass. 409 , 411-12 n. 8 (1982).

Plaintiff’s reliance on the words “by deed,” however, even if applicable, is not the same as the exception in the Order of Taking for a “right-of-way of record.” “Of record” is a bright line test, established in an order of taking and not by statute, that a right-of-way was recorded in the Registry of Deeds (or Registry of Probate). “By deed,” on the other hand, implies that an interest was created or related to a deeded right, whether recorded or unrecorded. It should also be noted that the holdings in both Adams and Lane, cited by Plaintiff, involve the meaning of the words “by deed” only as referenced in G. L. c. 187, § 5, a statute dealing with utilities. [Note 14] In the case at bar, Plaintiff attempts to rely upon an easement by implication in Woods Road, which is clearly not an easement of record. [Note 15] Even if an easement by implication (or necessity) could be proved, and even if the holding in Adams that such an easement was related to a deeded right, such holding does not convert the easement by implication into an easement “of record.” [Note 16]

As a result of the foregoing, I find that the Order of Taking extinguished any potential easement by implication, if it did exist.

In light of the above, I DENY IN PART (with respect to sovereign immunity) and ALLOW IN PART (with respect to the Order of Taking) the Commonwealth’s (and Weiner’s) Cross-Motion for Summary Judgment, and I ALLOW IN PART (with respect to sovereign immunity) and DENY IN PART (with respect to the Order of Taking) Plaintiff’s Motion for Summary Judgment, consistent with the above.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 4, 2010