MISC 09-403151

June 28, 2010


Trombly, J.


This case came to be heard on April 23, 2010, on Defendant’s motion for Partial Summary Judgment, seeking declaratory judgment that Plaintiff, as owner of the parcel of land known as Lot B at 180 North Street in Belchertown, has no easement rights to pass over the driveway portion of Defendant’s parcel, known as Lot A on North Street in Belchertown. Lot A and Lot B are depicted in the Decision Sketch attached hereto. In his complaint, Plaintiff seeks a Declaratory Judgment that the easement over Lot A as described in a deed recorded at the Hampshire County Registry of Deeds at Book 4165, page 160, was revived (Count I). [Note 1] Plaintiff further seeks treble damages for Defendant’s alleged trespass pursuant to G.L.c. 242, Sec. 7 (Count II).

Based on the record before me, I find that the following facts are not in dispute and justify entry of partial summary judgment in favor of the Plaintiff:

1. The Plaintiff, James E. Luippold (“Luippold”), is an individual residing at 180 North Street, Belchertown, Hampshire County, Massachusetts. By virtue of a Warranty Deed (“Luippold’s Deed’) recorded with the Registry on April 21, 2006 at Book 8688, Page 329, Luippold is the owner of the property shown as Lot B on a certain plan entitled “Plan of Land in Belchertown, Massachusetts prepared by Todd M. Mendes,” drawn by Harold L. Eaton and Associates, Inc., which plan is recorded in Plan Book 209, Page 78 (“2006 Plan”). A reduced copy is attached hereto.

2. The Defendant, DAG Real Estate Development, Inc. (“DAG”), is a Massachusetts corporation with a usual place of business located at 170 North Street, Belchertown, Hampshire County, Massachusetts. By virtue of a Quitclaim Deed recorded on July 17, 2007 at Book 9202, page 6, DAG is the owner of property shown as Lot A on the same 2006 Plan.

3. On or about March 23, 1993, Todd M. Mendes (“Mendes”) acquired title by deed to a certain parcel of land, roughly equivalent to Lot B, but then known as Lot 20 and shown on a certain 1970 plan recorded with the Registry at Plan Book 76, Page 14 (“1970 Plan”). Lot 20 included an easement over an abutting parcel known as Lot 1 in the same subdivision. Lot 1 is roughly equivalent to Lot A as shown on the 2006 Plan.

4. The easement granted to Mendes in the 1993 Deed, recorded with the Registry in Book 4165 Page 160, is described therein as follows:

“Beginning at an iron pin set in the Northerly line of North Street, which iron pin is situated at the southerly most southeast corner of land now or formerly of Gerald W. Houlihan; thence along the arc of a curve to the left with a radius of twenty (20) feet a distance of twenty-eight and twenty-two hundreths (28.22) feet to a point; thence N. 6º 07' 00" E. Two hundred and no/100 (200.00) feet, more or less, to a point; thence northeasterly N. 86º 56' 50" E. A distance of ninety one and seventeen (91.17) feet, more or less, to a point on the easterly side of said easement. Said point being the westerly boundary of land now or formerly of Frank Correial thence southerly S. 6º 07' 00" W. a distance of one hundred ninety seven and 72/100 (197.72) feet, more or less, to a point; thence along the arc of a curve to the right with a radius of twenty and no/100 (20.00) feet a distance of thirty four and 62/100 (34.62) feet to an iron pin located in the northerly side of North Street; thence S. 86º 56' 50" W. A distance of ninety one and 17/100 (91.17) feet, more or less, to an iron pin, the point of beginning.”

4. In 1997, by virtue of a Deed recorded at Book 5195, Page 206, Mendes acquired a 30% interest in 17.758 acres of land in Belchertown, of which Lot 1 was a portion.

5. By a Quitclaim Deed dated December 23, 1998 and recorded with the Registry at Book 5577, page 231, Mendes became the sole owner of Lot 1. Contemporaneously, Mendes recorded a new ANR Plan with the Registry at Plan Book 184, page 182 (“1998 Plan”), which discloses that Lots 1 and 20 were presently joined, and thus formed a single contiguous lot.

6. In June, 2005, Mendes caused the new ANR plan (2006 Plan) to be prepared by the same surveyor who had prepared his 1998 Plan and recorded it with the Registry at Book of Plans 209, Page 78. This plan showed, primarily, the subdivision of the then Lot 1 into the two present lots, Lot A and Lot B.

7. Mendes transferred his interest in Lot B to the Plaintiff by Deed dated April 20, 2006. Said Deed references the 2006 Plan by its Book and Page numbers, and describes the property conveyed therein as being a “portion of the premises conveyed to the Grantor herein by deed of Gerald W. Houlihan et ux dated March 23, 1993 and recorded as aforesaid in Book 4165, Page 160.”

8. Mendes transferred his interest in Lot A to the Defendant, DAG, by Deed dated July 12, 2007, recorded with the Registry at Book 9202, Page 6. Exhibit A, as attached to this deed, describes the property as “being the same premises conveyed to the Grantor herein by deed of Duane G. Wilson et ux dated December 23, 1998 and recorded at the Hampshire County Registry of Deeds in Book 5577 Page 231.”

9. A dispute has arisen as to whether the Plaintiff has an easement to use the dog leg portion of Lot A which abuts Plaintiff’s property to the east. Previously, on June 6, 2008, DAG had filed a complaint in Case No. 08 MISC 381438, regarding the same parcels and the same purported easement. The case was voluntarily dismissed pursuant to Mass.R.Civ.P. 41(a)(2) on December 9, 2008, when the parties attempted to resolve the matter. The present case was filed when a settlement could not be reached.

Standard of Review

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. 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. Comm’r 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. This court finds that Summary Judgment is appropriate in this case.

Merger & Revival of the Easement

Defendant contends that when Mendes took title to Lot 1 in fee simple, the easement for the benefit of Lot 20 was dissolved by the doctrine of merger, noting that “In order to extinguish an easement by merger, a unity of title must have come into existence in the same person.... [An owner] cannot have an easement in [his] own estate in fee.” York Realty, Inc. v. Williams, 315 Mass. 287 , 289, 52 N.E.2d 686 (1943). Plaintiff disagrees, arguing instead that because Lot 20 had slightly different acreage than the resultant Lot B, Mendes never held title sufficient to cause merger. This court feels that a finding of merger by operation of law is unnecessary, in any event, because when Mendes took title to Lot 1, he contemporaneously created and submitted an ANR plan which intentionally merged Lot 20 with Lot 1, redrawing them as a single contiguous lot, which retained the label “Lot 1". Though an easement was included on that plan, a single lot cannot have an easement over itself because an easement appurtenant, as sought by the Plaintiff, requires both a dominant and servient estate held in separate ownership; thus, any easement could not have survived. Goldstein v. Beal, 317 Mass. 750 , 754, 59 N.E.2d 712 (1945). In 2006, Mendes caused another ANR plan to be created, re-dividing the then Lot 1 into two new and different lots, labeled Lot A and Lot B, respectively, and including an identical easement.

As established in the preceding paragraphs, the original easement was destroyed by the legal joining of the two lots into a single lot. “Once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. For the easement to arise again, it must be created anew by express grant, by reservation, or by implication.” Restatement of Property § 497 (1944 & 1991_1992 Supp.). This easement cannot be revived in the traditional sense, by alienating the servient or dominant estate, because the original lots, as plaintiff points out, are not the same as the current lots. The original lots were destroyed and ceased to exist when joined into a single lot, and this single lot existed for 8 years before Mendes divided it into two new lots.

Creation of the Implied Ingress & Egress Easement

A “deed is to be construed to give effect to the intent of the parties as manifested by the words used, interpreted in light of the material circumstances and pertinent facts known to them at the time it was executed.” Bessey v. Ollman, 242 Mass. 89 , 91 (1922). While it is also true that an implied easement does not require absolute necessity, the Defendant has failed to explain why the Deed’s reference to the 2006 Plan, which was recorded about one month prior to the conveyance to the Plaintiff, does not create, by implication, the ingress and egress easement depicted on said Plan. Defendant argues that the depiction of the easement in the 2006 Plan is insufficient for the purposes of determining an implied easement, as it does not indicate which parcel is benefitted by the easement. However, this court finds that since the plan regards only two of Mendes’ lots, and since the easement included thereon specifically references the 1993 Deed from the Houlihans to Mendes, conveying the original easement, it is highly indicative of Mendes’ intention to include an easement over Lot A for the benefit of Lot B, in his conveyance of Lot B to the Plaintiff.

G.L c. 184 § 25 provides that “no indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it.” Luippold’s Deed, in its attached Exhibit A, makes specific reference to the 2006 Plan, and to Lot B shown thereon. The 2006 Plan was a recorded instrument, in the public record at the time of the conveyance, by which an ingress and egress easement was created, and as such, the Plan is specifically exempted from G.L. c. 184 §25 by clause (4). [Note 2] “Strictly speaking, the deed ‘creates’ the easement ... even though it is aid that the easement is ‘created by implication,’ because it is through an interpretation of the deed together with the attendant circumstances that such an easement is found to exist. Thus ‘the instrument containing the reference creates the interest referred to’ and is not ‘indefinite’ within clause (4).” LaBounty v. Vickers, 352 Mass. 337 , 346-47, (quoting Morse v. Copeland, 2 Gray 302 (1954))

The 2006 Plan, dated February 26, 2006 and recorded March 13, 2006, was created at the behest of Mendes by Harold L. Eaton and Associates, Inc., clearly using the 1998 plan as a basis. In the 2006 Plan, Mendes divided Lot 1, which had been created from the former Lots 1 and 20, into Lot A and Lot B. The 2006 Plan includes an easement over Lot A, nearly identical to – indeed, it references – the 1993 easement that was extinguished by the joining of Lots 1 and 20 on the 1998 Plan.

The question currently before the court is whether Mendes, as grantor, intended to, and did successfully, include an easement with his grant of Lot B to the Plaintiff. The Defendant did not acquire his interest in Lot A until more than a year after the Plaintiff took title to Lot B and, thus, when determining whether the easement exists, the court turns to the language of the deed itself, construing it in the light most favorable to the Grantee, Plaintiff, as against the Grantor, Mendes. "As the language of the deed is the language of the grantor, the rule is, that all doubtful words shall be construed most strongly against the grantor, and most favorably and beneficially for the grantee." Salisbury v Andrew, 19 Pick. 250 (1837).

Mendes included a reference to the 2006 Plan in his deed to Luippold, which appears to demonstrate his intent to grant the easement. If Mendes did not intend to convey the easement, he was remiss in commissioning, purchasing, and recording two ANR plans depicting the easement, with references to the 1993 Deed containing an easement description. It appears from the two ANR plans, which Mendes caused to be created, submitted, and recorded, that he intended to include an easement over the driveway portion of Lot A for the benefit of Lot B. This easement, argued to be the original Easement persisting, is prominently displayed on the 2006 Plan and it seems unlikely that Mendes included it accidentally. By virtue of the reference to the 2006 Plan in Luippold’s deed and the inclusion of the easement on the 2006 Plan, Mendes displayed his intent to include the Easement in his conveyance of Lot B and did, in fact, convey the land with said easement.

The Defendant argues that by describing Lot B, when conveyed by deed to Luippold, as a “portion” of Lot 20 as received by Mendes in 1993 is indicative of his intent to convey only the lot itself, excluding any easement over the Defendant’s property. The court is unconvinced due to the differences in acreage of the original Lot 20 and the resulting Lot B. Defendant could argue that the reference to the 1993 Deed and the easement conveyed therein cannot act to describe a newly created easement, but this court finds that though Mendes should have created a new description of the easement to be included with the deed, his intent appears clear and, as the new easement is functionally identical to the original easement, the technical insufficiency of this ‘shortcut’ should not outweigh the intent of the grantor, Mendes. The origin of an implied easement “whether by grant or by reservation must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.” Dale v. Bedal, 305 Mass. 102 , 103 (1940).

Trespass (Count II)

On the issue of Defendant’s alleged trespass on Plaintiff’s property, this court must dismiss Count II of the Plaintiff’s complaint without prejudice because the Land Court does not have jurisdiction to hear trespass claims that do not involve questions of title. G.L. c. 185, §1(o) grants the Land Court jurisdiction to hear “[c]ivil actions of trespass to real estate involving title to real estate.”


In the matter of the purported easement over Lot A for the benefit of Lot B, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, summary judgment is appropriate on that issue. This court finds that the Plaintiff did, in fact, receive an easement, which runs with Lot B over Lot A, allowing him ingress and egress by the driveway thereon to access his property according to the description in the 1993 Deed. This court finds that it does not have jurisdiction to hear Count II of Plaintiff’s complaint, the trespass claim, and therefore dismisses it without prejudice. The Plaintiff may bring the trespass claim in the appropriate forum. For all the above reasons, it is:

ORDERED that Defendant’s motion for Partial Summary Judgment is DENIED:

ORDERED that the Plaintiff is hereby GRANTED Partial Summary Judgment on Count I of his complaint:

ORDERED that Plaintiff has an easement for ingress and egress to his land, on North street, over a portion of Lot A approximately fifty (50) feet wide and extending approximately two hundred (200) feet northerly from North Street ; and

ORDERED that the Plaintiff’s claim of trespass be and is hereby DISMISSED without prejudice.

By the Court. (Trombly, J).

Attest: Deborah J. Patterson


Dated: June 28, 2010


[Note 1] All references to recorded documents relate to instruments recorded at this Registry of Deeds

[Note 2] “...any other reference to any interest in real estate, unless the instrument containing the reference either creates the interest referred to or specifies a recorded instrument by which the interest is created and the place in the public records where such instrument is recorded.” G.L.c. 184 §25(4)