VINCE KUBIC v. DAVID AUDETTE and RAYMOND AND JANE GIFFORD

Introduction

The Plaintiff in this case, Vince Kubic, seeks declaratory and injunctive relief to prevent Defendants David Audette, Raymond Gifford and Jane Gifford from using a right of way to so-called Webster Lake [Note 1] for activities associated with the Defendants’ proposed construction of a dock in Webster, Massachusetts. The Plaintiff’s Complaint, filed on July 20, 2007, alleges only in very general terms that the Defendants made unauthorized entry on his land, causing damage (Count I); and that the Defendants “have sought to use” a 100-foot long right of way adjacent to the Plaintiff’s land, “to remove material in anticipation and in preparation of the construction of a structure on or about the right of way” in a manner “inconsistent with the expressed [sic] terms and purpose” of that right of way (Count II). On the basis of these bare-boned claims, the Plaintiff contends that there is an actual controversy between the parties, and prays for broad injunctive and declaratory relief (Count III). It was only in subsequent pretrial filings with the court that the Plaintiff clarified his intention in filing this action: he seeks to prevent the Defendants from dumping dredged material on his land, and from using a shared right of way in connection with the planned construction of a dock. As more fully set forth below, the Plaintiff has not proved his claims.

A trial in this matter was held on March 1, 2010. Only Kubic and Defendant David Audette testified. Neither was qualified as an expert. Seven agreed exhibits were admitted into evidence: 1. A plan prepared by Rekola Engineers and Surveyors, Inc. in 2007, entitled “Encroachment Plan of Land for Vincent Kubic, 4 Fairfield Street, Webster, MA, 01570.”

2. Fourteen photographs of the disputed area, taken in June 2005 and June 2007, including “before” and “after” photos of the excavated/dredged areas, piles of earth and plant materials removed from the area in and around the subject right of way, and changes in the grading of the subject right of way.

3. A copy of a portion of the Town of Webster’s Assessors’ plans, showing the parties’ respective lots, in relation to Webster Lake and the neighboring lots and ways.

4. A plan of the dock construction proposal submitted by Defendant Audette to the Massachusetts Department of Environmental Protection (the “DEP”) Bureau of Resource Protection - Waterways Regulation Program, labeled “Draft” and dated February 17, 2009.

5. A subdivision plan entitled “Plan of Lots of Arthur & Doriza L. Robinson, Webster, Mass.” dated September 11, 1948, approved by the Webster Planning Board on September 18, 1951, and recorded in the Worcester District Registry of Deeds on July 16, 1953 at Plan Book 191, Plan 16.

6. A Quitclaim Deed from Michael Kubic to Vincent Kubic, for the three parcels of land (which the parties identify as 4 Fairfield Street), dated August 4, 1994, and recorded at the Worcester District Registry of Deeds at Book 16492, Page 75.

7. A Release Deed dated October 31, 2007, and recorded on December 19, 2007 in the Worcester District Registry of Deeds in Book 42207, Page 279, in which Francesca Pomerantz purported to convey all of her “right, title and interest in a certain parcel of land located on the westerly side of Fairfield Street in Webster, Massachusetts” to David Audette (as to one half) and Raymond L. Gifford and Jane M. Gifford, as joint tenants (as to the other half) (the “Release Deed”).

In addition, the parties referred to “Chalk A” during the trial. Chalk A indicates that it depicts property line boundaries of the parties’ lots and the abutting streets, as well as the location of the proposed dock, all superimposed over the April 2005 MassGIS orthophoto of the area. Chalk A was not introduced into evidence.

Prior to the trial, the parties had stipulated to the following:

1. Plaintiff Vince Kubic owns the property at 4 Fairfield Street in Webster, Massachusetts.

2. Defendant David Audette owns the property at 17 Fairfield Street, and Defendants Raymond and Jane Gifford own the property at 13 Fairfield Street.

3. The Defendants propose to construct a pier beyond the end of a way that extends westerly from Fairfield Street for a distance of 100 feet to the former shoreline of Webster Lake.

Findings of Fact

Based upon the parties’ pretrial stipulations, the seven agreed upon trial exhibits, and the testimony of the two witnesses at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I make the following findings of fact:

1. Plaintiff Vince Kubic owns property identified as 4 Fairfield Street in Webster, Massachusetts.

2. Defendant David Audette owns property identified as 17 Fairfield Street in Webster, Massachusetts.

3. Defendants Raymond and Jane Gifford own property identified as 13 Fairfield Street in Webster, Massachusetts.

4. The Defendants’ properties and a portion of the Plaintiff’s property are shown on a subdivision plan entitled “Plan of Lots of Arthur & Doriza L. Robinson, Webster, Mass.” dated September 11, 1948, approved by the Webster Planning Board on September 18, 1951, and recorded in the Worcester District Registry of Deeds on July 16, 1953 at Plan Book 191, Plan 16 (the “Subdivision Plan”).

5. The property located at 4 Fairfield Street, Webster, Massachusetts was conveyed for nominal consideration to the Plaintiff by a quitclaim deed from Michael Kubic, dated August 4, 1994 and recorded in the Worcester District Registry of Deeds at Book 16492, Page 75 (the “Kubic Deed”).

6. The Kubic Deed describes three separate parcels, identified as Parcel One, Parcel Two and Parcel Three.

7. Parcel One is described in the Kubic Deed as being Lot #15 on the Subdivision Plan. Parcel One is also described in the Kubic Deed as bounding partly on a “proposed road” and partly on a “right of way to the Lake.” The “proposed road” is now called Fairfield Street.

8. Parcel Two is described in the Kubic Deed as a 10,412 square foot triangular parcel partially bounding on Lot #15 (Parcel One), and partially or completely submerged below the surface of Webster Lake. There is no reference in the Deed to Parcel Two bounding on a right of way to the Lake, or any other right of way. The Kubic Deed recites that Parcel Two is conveyed “together with a right of way over existing ways as shown on the [Subdivision] Plan to said Lot #15.” (Emphasis added.) Parcel Two, however, is not shown or otherwise indicated on the Subdivision Plan.

9. Parcel Three is described in the Kubic Deed as being Lot #19 on the Subdivision Plan. The Deed states that Parcel Three is conveyed “[t]ogether with a right of way over existing ways as shown on said [Subdivision] Plan from Kildeer Road.” As depicted on the Subdivision Plan, Lot #19 (Parcel Three) abuts Lot #15 (Parcel One) and what is now Fairfield Street. Lot #19 is not shown on the Subdivision Plan as abutting any other “right of way.” There is also no reference in the Kubic Deed to Parcel Three being bounded on, or being conveyed with the benefit of, a right of way to the Lake.

10. The Subdivision Plan shows a fifty-foot wide area labeled as “Right of Way,” extending a distance of 100 feet westerly from the westerly sideline of what is now Fairfield Street to a line depicted on the Subdivision Plan as the shoreline of Webster Lake (the “Right of Way”). There is no reference on the Subdivision Plan to the purpose of the Right of Way. [Note 2]

11. Neither of the Defendants’ properties abuts the Right of Way.

12. In the summer of 2007, the Defendants retained a contractor to provide hydro raking services for removal of aquatic vegetation from a portion of Webster Lake, near the vicinity of the Right of Way.

13. Certain aquatic materials removed during the hydro raking process were inadvertently placed on a portion of Kubic’s property by the Defendants’ contractor. Once Kubic alerted Audette that the materials had been placed on Kubic’s land, Audette had the materials removed. Kubic suffered no injury as a result of the temporary placement of the materials on his property.

14. The Defendants also caused earth, vegetation and debris to be removed from the Right of Way, and caused a portion of the Right of Way to be re-graded — all in preparation for construction of a dock.

15. Kubic has maintained a dock or boat launching pad on Parcel Two for many years, although he has not made use of it for at least six years.

Count I — Kubic’s Trespass Claim

Kubic complains that the Defendants trespassed by depositing earth and plant materials on his land. Pursuant to G. L. c. 185, § 1(o), the Land Court’s jurisdiction over civil actions of trespass is limited to actions “involving title to real estate.” There is no dispute, however, as to Kubic’s title to the area of land on which the materials were deposited. The Defendants do not assert that they possess any rights in Kubic’s land, and admit that the materials were placed there in error. Therefore, Kubic’s claim sounds solely in tort and is outside of the Land Court’s jurisdiction. See e.g., Sacks v. Abend, 14 LCR 245 , 246 (2006) (Scheier, C.J.). Accordingly, judgment shall enter dismissing the Plaintiff’s Count I claim for trespass. [Note 3]

Count II — Kubic’s Overburdening Claim

Under Count II of his Complaint, the Plaintiff contends that the Defendants “have sought to” use the Right of Way to remove earth and plant materials “in anticipation of the construction of a structure on or about the way,” and in a manner which is inconsistent with its “expressed terms and purpose.” He failed to prove at trial, however, that the Defendants either have already used, or intend to use, the Right of Way in a manner which is inconsistent with the purpose of any easement in the Right of Way. Kubic also did not prove that the Defendants’ use or intended use of the Right of Way has, or would, interfere with his own ability to use it. Therefore, Kubic’s Count II claim for overburdening fails.

As a threshold matter, the Plaintiff does not challenge the Defendants’ rights to use the Way as access to the Lake. Indeed, Kubic testified to his belief that the Defendants are among the lot owners with rights to use the Right of Way to access the Lake. Nor was any evidence introduced as to the intended purpose of the Right of Way, such as deeds or other instruments creating easements in the Right of Way by grant or reservation. Instead, both parties appear to rely upon the fact that the Right of Way is shown on the Subdivision Plan, in assuming that the purpose of the Right of Way is to provide lot owners in the Subdivision with access to the Lake.

The Right of Way was overgrown with vegetation in 2007, when the Defendants undertook to clear and grade it in preparation for construction of a dock. If providing Lake access for the Subdivision lot owners is indeed the purpose of the Right of Way, then clearing and grading would be entirely consistent with any easement of passage which the Defendants might have in and over the Right of Way. See Post v. McHugh, 76 Mass. App. Ct. 200 , 206 (2010) (every right necessary for enjoyment of an easement is implied); see also Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981) (“Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement”). Actions such as clearing and grading do not, in themselves, increase the burden on a right of way easement, unless they interfere with its use. See Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 158 (1983), quoting Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815 , 818 (1979) (one with rights to use an easement “may use the land for all purposes which are not inconsistent with the easement . . . or which do not materially interfere with its use.”).

Here, there was no evidence even remotely suggesting that the Defendants’ clearing and grading operations have impeded Kubic’s access over the Right of Way to the Lake. Rather, Kubic testified that he viewed the clearing of vegetation as an improvement, because much of the Right of Way had become overgrown to a point where travel was difficult.

Kubic also failed to demonstrate that any future activities planned by the Defendants in connection with construction of a proposed dock will overburden the Right of Way. There was no evidence presented that the Defendants intend to undertake further activities within the Right of Way in connection with their proposed dock construction. And there was only limited and inconclusive evidence as to the actual location and design of the Defendants’ proposed dock. Only a draft plan of the proposed dock was submitted into evidence. The testimony regarding that plan shows it to be of dubious accuracy in regard to both the proposed location and the proposed design of the dock.

Moreover, in his testimony, Kubic not only admitted that a floating, removable dock had once been maintained at the end of the Right of Way, he also admitted that the Defendants’ proposed dock would not be constructed within the Right of Way. [Note 4] In the end, Kubic did not meet his burden of proof to establish that the Defendants’ activities have resulted in, or would result in, an overburdening of an easement in the Right Way.

Conceding that the proposed dock would not be constructed within the Right of Way, Kubic appears now to have abandoned his overburdening claim in favor of a new claim that the Defendants’ proposed dock would be constructed on accreted land between the end of the Right of Way and the current shoreline, and that such construction would constitute a trespass and unlawfully impede his access to the Lake from Parcel Two. On the eve of trial, the Plaintiff raised the argument (not apparent on the face of his Complaint) that, as the owner of littoral property, he holds title to an area of land which has accreted between the end of Right of Way and the present shoreline of the Lake, whereas the Defendants do not possess title to said accreted land. In his post trial memorandum, the Plaintiff presses this argument as the basis for a newly articulated trespass claim, as well as a new claim for a declaratory judgment that he holds title to the allegedly accreted land to the exclusion of the any rights therein claimed by the Defendants.

Kubic contends, and the Defendants concede, that the shoreline of the Lake has receded significantly since the Subdivision Plan was prepared in 1948, [Note 5] so that a land mass is now exposed between the end of the Right of Way and the water’s edge. But, to establish his ownership of the exposed land, the Plaintiff merely asserts that the land mass is the result of accretion, and relies upon the general rule that the line of property ownership follows the changing shoreline when accretion occurs. See Lorusso v. Acapasket Improvement Association, Inc., 408 Mass. 772 , 780 (1990). No expert testimony or other evidence was presented, however, establishing actual differences between the shoreline shown on the Subdivision Plan and the present shoreline, or the timing and cause of any such differences. [Note 6] Equally problematic is the lack of evidence on which determine the effect, if any, of the alleged accretion on the Plaintiff’s property boundary, or on which to determine whether all necessary parties have been joined in this action. See Lorusso v. Acapasket Improvement Association, Inc., 408 Mass. at 780-781 (when two or more littoral property owners have rights to land formed by accretion simultaneously, the doctrine of equitable division is applied to determine the owners’ respective property rights).

The Plaintiff’s attempt to substitute these two new claims for the claims enunciated in his Complaint is futile. Even if the Plaintiff’s Complaint were construed under the most liberal of notice pleading standards to include his late claims, there is insufficient evidence to support entry of judgment in his favor. Kubic’s testimony as to the changes he personally observed in the Lake’s shoreline during his lifetime, and as to his anticipated difficulties in maneuvering his boat if the dock were to be constructed, falls far short of proving either that his property boundary has altered as a result of accretion, or that the Defendants’ proposed dock would trespass on his land.

Count III — Kubic’s Request for Injunctive and Declaratory Relief

In Count III of his Complaint, Kubic claims that an actual controversy exists between the parties as to their rights and obligations with respect to the land located “on or about the Right of Way,” and seeks orders permanently preventing the Defendants “from using the Right of Way,” and from trespassing on his land. He also asks the court to “declare the rights of the Plaintiff and Defendants with respect to the land shown as the Right of Way.” (Emphasis added.) Because this court has no jurisdiction over the Plaintiff’s Count I trespass claim, Kubic is not entitled to an order preventing the Defendants from trespassing onto his land. In any event, the claimed trespass was temporary, the Defendants acknowledged their error, there is no evidence of any intention on the part of the Defendants to trespass further, and the Plaintiff presented no evidence of any injury to his property. Therefore, the trespass claim is moot.

The Plaintiff is also not entitled to an injunction prohibiting the Defendants’ use of the Right of Way. The Plaintiff does not challenge the Defendants’ rights to use the Right of Way to access the Lake, and he has admitted that the Defendants do not propose to construct a dock within the Right of Way. Without evidence that the construction of the dock, or preparation for its construction, has or would either (a) violate the purpose of the Right of Way, or (b) materially interfere with Kubic’s own use the Right of Way, there is no basis for granting the requested injunction.

It necessarily follows that, where both his Count I trespass claim and his Count II overburdening claim have failed, Kubic is not entitled under Count III to any declaration of the Plaintiff’s and the Defendants’ rights with respect to the “land shown as the Right of Way.”

See G. L. c. 231A, § 3; see also Ingram v. City Planner of Lynn, 350 Mass. 762 (1966) (declaratory judgment denied where “there is no basis in law for granting any relief”). Therefore, judgment shall enter denying the Plaintiff’s claims for declaratory and injunctive relief, and dismissing Count III.

Judgment to enter accordingly.

Judith C. Cutler, Justice

Dated: 24 September 2010