BUTTERWORTH WATER COMPANY, INC. v. WAYNE FORTIER and BETH LYDEN-FORTIER

Introduction

Plaintiff Butterworth Water Company Inc. owns the registered land parcel at 24 Glenn Street in Adams (the “Butterworth property”). [Note 1] Defendants Wayne and Beth Fortier own the abutting properties at 22 and 26 Glenn Street. [Note 2] Portions of structures on the Fortier property at 22 Glen Street, as well as portions of the paving leading to those structures, encroach upon the Butterfield property. The encroachments consist of a 1.365 square foot corner of the Fortiers’ garage, part of a wooden tie wall, a portion of a temporary storage structure constructed by the Fortiers between the garage and the wooden tie wall, and a paved area used by the Fortiers to access that temporary structure.

Butterworth brought this action to have these encroachments removed. As registered land, with certain exceptions not applicable here, the Butterworth property is entitled to be free from all encumbrances not listed on its Certificate of Title, and acquisition of title by adverse possession to, or prescriptive easement over, such land is prohibited. G.L. c. 185 §§ 46, 53. The Fortiers claim that this case is “exceptional” in that (in their view) all of the encroachments are de minimis, do not interfere with Butterworth’s use of its property, and were already in existence when the Fortiers bought the property at 22 Glenn Street, and as such claim that an order directing their removal is an improper remedy. See Goulding v. Cook, 422 Mass. 276 , 277 n. 3 (1996). The Fortiers also assert that an express easement exists over the encroaching paved area, allowing them access across the Butterworth property to their temporary storage structure and the rear of 22 Glenn Street.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence in connection with the trial, the registered land plans of record of which I take judicial notice (Exs. 1 and 2, attached), the parties’ admissions during the course of the proceedings, and my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the 1.365 square foot corner of the Fortiers’ garage which encroaches on the Butterworth property is an exceptional, de minimis encroachment and as such need not be removed, but that all the other objects – the tie wall, the temporary storage structure, and the paved area leading to that structure– must be removed to the extent they encroach on the Butterworth property. [Note 3] I also find and rule that the easement referenced on Butterworth’s certificate of title is the only easement over that property benefiting the Fortiers, and that it is located near the side of the so-called Springhouse (the area marked “pavement” on Ex. 3) where it leads to the former wooden garage on 26 Glenn Street. See Ex. 2. It is not, as the Fortiers contend, in the area leading to their temporary storage structure at 22 Glenn Street.

Facts

As previously noted, plaintiff Butterworth Water Company, Inc. is the owner of the registered land at 24 Glenn Street in Adams. As its name suggests, it is a bulk supplier of water which it obtains from springs on its land. Defendants Wayne Fortier and Beth Lyden-Fortier own the abutting properties to the west at 22 Glenn Street and to the north at 26 Glenn Street. See Ex. 3, attached. [Note 4] The Fortiers claim that each of their parcels has the benefit of two easements to pass and repass across the Butterworth property, both located over the strip of Butterworth property that separates 26 Glenn Street from Glenn Street — one leading to their temporary storage structure at 22 Glenn Street and one to their property at 26 Glenn Street. An examination of the Certificate of Title to the Butterworth property shows, however, that it is encumbered by only one easement. The location of that easement is discussed below.

Butterworth acquired the Butterworth property in 1975. There is a 7200 square foot concrete building on that property known as the Springhouse, located along the boundary with 26 Glenn Street. See Ex. 2. Immediately to the west of the Springhouse is a strip of land that separates 26 Glenn Street, to the north, from Glenn Street, to the south. To the north and east of the Springhouse is an acre of fenced-in land surrounding the spring itself. The spring is capable of producing approximately 600,000 gallons of springwater a day. There are two holding locations available for storing and loading the water into trucks for transport: one located immediately next to the Springhouse on the strip of land that separates 26 Glenn Street from the road, and the other located at the bottom of Glenn Street at its intersection with Commercial Street. Presently all the filling is done at the second location, the corner of Glenn and Commercial Streets, and no tankers access the Springhouse itself. Butterworth is currently in negotiations to begin selling its springwater to commercial bottlers and must expand its operations to do so. These expansion plans include the leveling and improvement of the strip of land between 26 Glenn Street and Glenn Street to accommodate an anticipated increase in truck traffic. The improvements will provide easier and safer access by allowing trucks to access the holding location in the Springhouse and then re-enter Glenn Street without reversing, and would likely require removal of the encroachments. Butterworth is also concerned about the possibility of contamination arising from the Fortiers’ use of this area; G.L. c. 21E regulates the storing of vehicles and equipment on the Butterworth property and if the existing encroachments continue Butterworth will have no control over the equipment or vehicles parked or stored on its property by the Fortiers.

The Fortiers have owned and lived at 22 Glenn Street, part of property once owned by Henry Charpentier, since 1983. They bought 22 Glenn Street in the belief that it had the benefit of an easement across the Butterworth property. [Note 5] The corner of their garage, the paved area in front of where they have since built a temporary storage structure, and the wooden tie wall located on the opposite side of that paved area were already in existence when the Fortiers bought the property in 1983. The corner of the Fortier garage encroaching over the property line is a triangular piece with an area of only 1.365 square feet, while the portions of the temporary storage structure and the wooden tie wall are larger. The paved area is significantly larger still; while no exact number was provided, the 2008 Survey (Ex. 3) indicates the area is over 300 square feet. Since owning 22 Glenn Street, the Fortiers have used this paved area for parking, storage, and to access the temporary storage structure.

In 2005 the Fortiers purchased 26 Glenn Street, a residential property abutting 22 Glenn Street also once owned by Henry Charpentier, separated from Glenn Street by the Butterworth property. [Note 6] The Fortiers removed the house on 26 Glenn Street and currently the only building on that property is a temporary storage structure, erected by the Fortiers, similar to the one on 22 Glenn Street. The Fortiers use 26 Glenn Street to park two trucks, one used in their business and the other for personal activities. The property is accessed from Glenn Street by crossing the Butterworth property on the paved driveway immediately to the west of the Springhouse (the “Pavement” area shown on Ex. 3). This driveway leads to the wooden garage that formerly existed on the 26 Glenn Street property. See Exs. 2 and 3.

The Butterworth property is part of a larger parcel once owned by the L.L. Brown Paper Company. In 1912 a portion of that parcel that now includes 26 Glenn Street was deeded from the Paper Company to Henry Charpentier, along with an easement across the strip of land that now separates 26 Glenn Street from Glenn Street, the “exact location of said way to be determined by the parties.” Deed, L.L. Brown Paper Company to Charpentier, Berkshire County Registry of Deeds (Northern District), Book 310, Page 191 (Nov. 29, 1912) (the 1912 deed). See n. 5. Thirteen years later the L.L. Brown Paper Company registered the remaining land (Parcel 12, now owned by Butterworth) with this easement recorded as an encumbrance. There are no other easements to pass over Parcel No. 12 listed on the certificate. The 1923 Land Court plan prepared in the registration of the Paper Company’s land shows Parcel No. 12, now the Butterworth property, as well as the Charpentier lands to the west and north. See Ex. 1. That plan, as well as the Decree plan (Ex. 2), also shows the two Charpentier lots that today correspond with 22 and 26 Glenn Street. Alhough the location of the easement conveyed in the 1912 deed is not indicated on these plans, the parcel currently known as 26 Glenn Street was a landlocked parcel with no access to Glenn Street without passing over Parcel 12 to the south. The plans also show a “garage-wood” on 26 Glenn Street in approximately the same location where the Fortiers currently have their temporary structure and park their two trucks. See Exs. 1 & 2. It is next to the Springhouse on Parcel 12 and accessed by crossing Parcel 12 over the pavement next to the Springhouse. See Ex. 3. Other facts are noted in the analysis section below.

Analysis

The Butterworth property is registered land and, as such, with certain exceptions not applicable here, is free from any encumbrances not listed in the certificate of title. G.L. c. 185 § 46. “In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.” Peters v. Archambault, 361 Mass. 91 , 92 (1972). In rare, “exceptional” cases, determined on a fact-specific basis of what is just and equitable, “courts will not enjoin truly minimal encroachments,” but instead will award damages. Goulding v. Cook, 422 Mass. 276 , 278-79 (1996) (emphasis added). The main factor in considering the appropriate remedy is the size of the encroachment and the effect on the registered landowner. See id.; Peters, 361 Mass. at 94 (encroachment of 465 square feet is “substantial and not de minimis”); Feinzig v. Ficksman, 42 Mass. App. Ct. 113 , 118 (195 square foot encroachment on registered land is “palpably more than the very small encroachments that have passed as de minimis) (citing cases).

Truly minimal encroachments (those taking up a very small area) on registered land have been allowed “[w]here the plaintiff cites no benefit from removal of the encroachment, the defendant notes that removal would imperil the stability of his building, the plaintiff does not contend that the encroachment is intentional or the result of negligent construction, and the magnitude of the encroachment is spatially inconsequential.” Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 227. The portion of the temporary storage structure, the portion of the wooden tie wall, and the paved area in front of them are too large to be considered spatially inconsequential, therefore the potential expenses associated with removing them relative to the minor impact they might have on the Butterworth property are irrelevant. See Goulding, 422 Mass. at 280; Feinzig, 42 Mass.App.Ct. at 188. In contrast, the 1.365 square foot encroachment of the Fortiers’ garage is de minimis, with no real effect on Butterworth and as such requiring its removal would be oppressive and inequitable. The size of this particular encroachment is small, particularly when compared with the entire Butterworth property and Butterworth’s present and planned use of that property. This particular encroachment existed at the time the Fortiers bought the property and no allegation was made that the construction of the garage over the property line was negligent or intentional. It is reasonable to infer that the removal of this corner of the garage would affect the stability of the building. Butterworth has plans to improve access to the Springhouse using the land currently occupied by the encroachments. The temporary storage structure, the wooden tie wall, and the paved area in front of them potentially interfere with these plans but the 1.365 square foot of garage exists on the side closest to the Fortiers’ property where it will not impact these plans. Any cars parked within the garage are entirely on the Fortiers’ property and pose no threat of contamination. No specific benefit was cited by Butterworth to necessitate the removal of the encroaching corner of the garage. In light of this, I rule that the 1.365 square feet of encroaching garage is a truly minimal encroachment, and damages (if any) are the appropriate remedy. No proof of any money damage was submitted, much less a quantification of that damage, so none is awarded.

The Fortiers contend that they have an easement across the portion of the Butterworth property where the encroachments exist and, because of this easement, the encroachments need not be removed. But this argument fails, for two reasons. First, the alleged easement is to pass and repass, and thus does not allow the construction of encroachments beyond paving. More fundamentally, it fails because there is no easement across the Butterworth property in this area. As previously noted, the 1983 deed upon which the Fortiers base their claim conveys a right of way “insofar as we may have the right to convey the same” to pass and repass over “that portion lying at the southeasterly corner thereof now or formerly owned by the L.L. Brown Paper Co.” However, an easement, in order to affect registered land as a servient estate “must appear on the certificate of title.” [Note 7] Jackson v. Knott, 418 Mass. 704 , 710 (1994). The lands formerly owned by the L. L. Brown Paper Company, now the Butterworth property, are subject to one easement recorded on the certificate of title to benefit certain land previously owned by Henry Charpentier. The exact location of this easement was not specified in the document creating it, the 1912 deed from the Paper Company to Henry Charpentier, but was instead left “to be determined by the parties.”

“It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed.” Labounty v. Vickers, 352 Mass. 337 , 345 (1967). Although there has clearly been at least some reconfiguration of the former Charpentier lots since the 1912 conveyance, see n. 6, supra, the land conveyed from the Brown Paper Company to Mr. Charpentier at that time (and thus the land benefited by the easement) included what is now 26 Glenn Street. The Land Court plans (Exs. 1 & 2) date from 1923 — the time the Butterworth parcel was originally registered and not long after the 1912 deed creating the easement in question. The only buildings shown on either of the two Charpentier lots were those on what is now 26 Glenn Street. They show a garage on 26 Glenn Street in approximately the same location where the Fortiers currently park two trucks, i.e. next to the Springhouse. There is a pavement area next to the Springhouse and testimony from both Butterworth’s President, Barry Krock, and defendant Wayne Fortier indicates that this pavement is used and, so far as they know, has always been used as the access point to 26 Glenn Street. Moreover, as shown by Ex. 2 (the Decree plan), the topography of 26 Glenn Street (particularly the existence of a stone culvert on its western side) makes it extremely unlikely that an easement existed coming from that direction. In light of all this, I find that the easement noted as an encumbrance on Parcel 12, once the Paper Company’s land and now the Butterworth property, is the pavement area immediately to the west of the Springhouse leading to the former garage on 26 Glenn Street. As such, the easement purportedly conveyed to the Fortiers and 22 Glenn Street by the 1983 deed did not validly convey an easement over the Butterworth property in front of the Fortiers’ temporary storage structure and wooden tie wall. See Marshall v. Francis, 332 Mass. 282 , 288 (1955) (it is a truism of law that one can convey only what they own and no more). As previously noted, that language was likely a carry-forward of language from earlier deeds that included what is now 26 Glenn Street, and the “southeasterly corner” so referenced is the southeasterly corner of 26 Glenn Street, i.e. the corner to which the pavement next to the Springhouse leads. See n. 5.

Conclusion

For the foregoing reasons, the plaintiff’s request for an order directing the removal of the defendants’ encroachments on the plaintiff’s property is granted with respect to the encroaching portions of the temporary storage structure, the wooden tie wall, and the paved area in front of them. The 2008 Survey (Trial Ex. 2) shall be used as the reference for the location of these encroachments, and they must be removed no later than ninety (90) days after the plaintiff requests their removal. The 1.365 square foot corner of the defendants’ garage that encroaches on the plaintiff’s property is a de minimis encroachment and need not be removed. No damages are awarded for that encroachment. The defendants’ easement across the plaintiff’s property is in the location marked “Pavement” in the 2008 Survey. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 9 August 2010