JAMES A. RICHARDS vs. GLENN D. JACKSON and MARTHA’S VINEYARD LAND BANK COMMISSION

Plaintiff filed his unverified Complaint on June 21, 2007, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to easement rights for his property (Locus, as hereinafter defined) over property (the Jackson Parcel, as hereinafter defined) located in Tisbury, Massachusetts. Defendant Martha’s Vineyard Land Bank Commission (the “Commission”) filed its Answer on July 19, 2007. Defendant Glenn D. Jackson (“Jackson”) (together with the Commission, “Defendants”) filed his Answer on July 20, 2007. A case management conference was held on September 5, 2007. A pre-trial conference was held on October 8, 2008, and a trial was scheduled for January 9, 2009. At a telephone status conference on December 19, 2008, the parties determined that a summary judgment was appropriate to resolve the case.

Jackson filed his Motion for Summary Judgment on February 13, 2009, together with supporting memorandum. On May 4, 2009, Plaintiff filed his Opposition and Cross-Motion for Partial Summary Judgment, together with supporting memorandum, Stipulation of Facts and Exhibits executed by all parties, and Affidavit of Martin A. Loria, Esq. On June 4, 2009, Jackson filed the Affidavit of Robert G. Funke, Esq. The Commission filed its Opposition to the Cross-Motion on June 8, 2009, together with supporting memorandum and Affidavits of Robert M. McCarron, Esq. and Douglas R. Hoehn, land surveyor. On June 12, 2009, Plaintiff filed his Reply Brief, and on that date the summary judgment motions were scheduled to be heard but were not heard because of a dispute over a material fact, specifically the northern boundary of property owned by Jackson. A Supplemental Joint Pretrial Memorandum was filed on July 20, 2009. A trial was held on September 22, 2009, at the Land Court in Boston without a site view. Defendants filed their post-trial briefs on November 24, 2009. Plaintiff filed his post-trial brief on November 27, 2009, and at that time the matter was taken under advisement.

Testimony for Plaintiff was given by Martin A. Loria, Esq. (expert title witness). Testimony for Defendants was given by Robert G. Funke, Esq. (expert title witness). There were seventeen exhibits submitted. Additionally, the court took judicial notice of Land Court Plan No. 41103A (“Plan No. 41103A”).

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. By an instrument dated December 30, 1796, land located in Tisbury, Massachusetts, owned by the Estate of Christopher Luce was set off, one-third to Silvanus Luce, one-third to Hannah Luce (the testator’s widow), and one-third to a group of heirs that included the testator’s four daughters and Love Luce, the daughter of Thankful Stewart. All parcels had frontage on the north side of Chekema (also known as Shokama, Tekamah, or Chekema) Path (the “Path”).

2. Hannah Luce’s land was eventually inherited by the heirs of Silvanus Luce: Richard Luce, Polly Luce, Elizabeth Luce, Betsey Luce and another Silvanus Luce (“Silvanus Luce, Jr.”) (collectively, the “Heirs”). [Note 1] By deed dated April 8, 1806 (the “Smith Deed”), recorded with the Dukes County Registry of Deeds (the “Registry”), in Book 15, Page 200, the Heirs conveyed a small portion (the “Smith Parcel”) of the two-thirds share of the Estate of Christopher Luce as well as a large portion of land to the south of the Path (the “Southern Land”) to Thomas Smith (“Smith”). The legal description of the Smith Parcel begins by describing the boundaries of the Southern Land as follows:

Beginning at the East post of a pair of bars on the Northeast of the enclosed land near where Love Luce now lives at a place called Wapataqua from thence extending about south half east about fifty nine and one half rods to a rock being about one rod westerly from the house wherein Love Luce now lives, from there about southeast to a stake & stones and from stake & stones to continue southerly to the Pond, so as the said Smith have his land two rods wide at said pond and from thence extending westerly by the land belonging to the heirs of Mathew Luce deceased two rods westerly bound where the headfence now stands, [description of the Smith Parcel begins here] then northerly till it comes to the north side of the road called chekema road then extending westerly by the north side of said road twenty eight rods to a stake and stones, and from thence due north six and an half rods to a stake and stones thence due east till it comes to the land of Benj Stewart and wife to a stake and stones eight rods from chekema road aforsaid thence south to the said road and otherwise bounded on the northerly by said road. [Note 2]

3. By two instruments dated May 22, 1806, one recorded with the Dukes County Registry of Probate in Book 9, Page 178, and the other recorded with the Registry (the “1806 Setoff”), [Note 3] the Heirs set off the remaining portion of the two-thirds share of the Estate of Christopher Luce into six parcels: Parcels 1 (“Parcel 1”) and 6 for Richard Luce; Parcel 2 (“Parcel 2”) for Elizabeth Luce; Parcel 3 (“Parcel 3”) for Polly Luce; Parcel 4 for Betsey Luce; and Parcel 5 for Silvanus Luce, Jr. Parcels 1 and 2 abutted the Smith Parcel to the north and/or west. Parcel 1 and the Smith Parcel abutted the land of Benjamin and Thankful Stewart (the “Stewart Land”) to the east.

4. The legal description in the 1806 Setoff for Parcel 1 reads as follows:

[B]eginning at the north corner of land belonging to Benjamin Stewart of Edgartown and Wife and where the said Stewarts land adjoins the land of Benjamin Luce, on the north at a stake and stones and from thence running due south by said Stewarts land about by stakes and stones about 165 rods, or until it comes to land lately purchased by Thomas Smith to a heap of stones and stake being 8 rods north from the north side of Chakama path, thence due west by said Smiths land, 27 rods to a stake and stones and thence due north by stakes and stones till it comes to the land of Benjamin Luce, aforesaid, to a stake and stones, thence due east by said Luces land 27 rods to the first mentioned bound.

5. The legal description in the 1806 Setoff for Parcel 2 reads as follows:

A tract of land adjoining that which we have set off to the said Richard bounded, beginning at the north corner of the same and from thence extending west by the aforesaid Benjamin Luces land 46 rods to a stake and stones and from thence due south by stake and stones until it meets the land of Thomas Smith aforesaid, and then east by said Smiths land till it comes to the land we have set off to the said Richard, and then north by said Richard to the first mentioned bound.

6. The legal description in the 1806 Setoff for Parcel 3 reads as follows:

[A] tract of land adjoining the dower, [Note 4] beginning at the north corner thereof thence extending west by the aforesaid Benjamin Luces land 14 and ½ rod to a stake and stones and from thence due south by stakes and stones till it comes to the Chakama path, then easterly by said path till it comes to the range of the westerly line of the dower and then north by the said dower to the first mentioned bound.

7. Elizabeth Luce and Polly Luce died sometime prior to 1840. [Note 5] By instrument dated March 31, 1840 (the “1840 Setoff”), recorded with the Registry at Book 29, Page 25, Silvanus Luce, Jr., Richard Luce, David Luce, [Note 6] Betsey Luce, Isaiah D. Pease, and the heirs of Polly Pease combined Parcels 1 and 2 and re-divided them into three parcels: Parcel 7 for Silvanus Luce, Jr.; Parcel 8 for Richard Luce; and Parcel 9 for David Luce, Betsey Luce, Isaiah D. Pease, and the heirs of Polly Pease. [Note 7] The description of the boundary of the combined Lots 7, 8, and 9 reads as follows:

Beginning at the south East corner of said premises near Tekamah Path, so called, and adjoining the land of Thomas Smith and the heirs of Thankful Stewart and Love Daniels; thence north by the land of said heirs of said Thankful and Love, one hundred and seventy two rods to the land of Benjamin Luce and others; thence west by the land of said Benjamin Luce and others sixty nine rods to the land of Isaiah D. Pease esq. thence South by said Pease’s land, one hundred and seventy two rods to Tekamah Path so called, or to the land of said Thomas Smith; thence by the land of said Smith, sixty nine rods to the first mentioned bound.

8. Jackson currently owns the land comprising Parcel 7 (the “Jackson Parcel”) and the Smith Parcel. Plaintiff currently owns Parcel 8 (“Locus”), which contains approximately twenty-nine acres.

9. By deed dated October 27, 1856, recorded with the Registry at Book 37, Page 85, Charles A. Luce, Executor of the Will of Richard Luce, conveyed Locus to George Dunham.

10. By deed dated July 10, 1857, recorded with the Registry at Book 37, Page 491, George Dunham conveyed Locus to his son-in-law James L. Skiff.

11. On October 16, 1970, M. Thurston Tilton and John C. Gibson, as Trustees of Leisureland Realty Trust (the “Petitioners”) filed a petition to partition with respect to two parcels (one of which was Locus). [Note 8] The Petitioners held one-half fee interest in Locus as tenants in common with the heirs of Peggy D. Skiff, the holders of the other one-half fee interest in Locus. William J. Boland was appointed Commissioner.

12. By deed dated April 15, 1971, recorded with the Registry at Book 289, Page 301, William J. Boland, as Commissioner, conveyed Locus to George P. Silva.

13. By deed dated September 17, 2001, recorded with the Registry at Book 849, Page 478, George P. Silva conveyed Locus to George P. Silva and James A. Richards as tenants in common.

14. On April 12, 2007, George P. Silva died testate. The Estate of George P. Silva (Dukes County Probate court, Docket No. 08P0076-EP1) is in the process of being probated.

15. The Path is today known as Stoney Hill Road. Locus abuts the north side of the Jackson Parcel and has no frontage on Stoney Hill Road.

16. The Commission holds a trail easement and an Agricultural Preservation Restriction over the Jackson Parcel.

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The primary issue in the case at bar is the existence of an access easement from Locus to Stoney Hill Road (the Path). Plaintiff argues that Locus is landlocked and has an easement by necessity across the Jackson Parcel to the Path. Jackson agrees that Locus is landlocked and has an easement by necessity to access the Path, but argues that it runs across Parcel 3, set off to Polly Luce in 1806, and not across the Jackson Parcel. Determining whether an easement by necessity exists, and if so, where it is located, is contingent on determining the Smith Parcel’s northern boundary (the “Northern Boundary”) as described in the Smith Deed. Plaintiff claims that the Northern Boundary was long enough to eliminate frontage on the Path for Parcel 1 but not Parcel 2. Jackson claims that the Northern Boundary extended across the entire southerly boundary of Parcels 1 and 2, thus eliminating frontage on the Path for both Parcels 1 and 2.

The Commission, on the other hand, argues that expert testimony by both parties is inadmissible because expert testimony went to the ultimate legal issue before the court. The Commission further argues that an easement by necessity does not exist because Richard Luce never signed the 1840 Setoff, Locus was historically deemed a wood lot, and public roads may be accessed from Locus by a network of woods roads to the north of Locus. I shall consider the Northern Boundary arguments and the Commission’s arguments separately.

I. Easement by Necessity.

An easement by necessity “is said to arise . . . when a common grantor carves out what would otherwise be a landlocked parcel.” New England Cont’l Media, Inc. v. Milton, 32 Mass. App. Ct. 374 , 378 (1992). An easement by necessity may be implied if the court can conclude that the grantor and grantee would have wanted to create such easement had they considered the matter. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005). Proponents bear the burden of proof to show that an easement by necessity exists. Id. at 300 (citing Cheever v. Graves, 32 Mass. App. Ct. 601 , 607, 609 (1992)). Proponents must show (1) common ownership between the dominant and servient estates, i.e. that unity of title existed; (2) unity of title was severed by conveyance; and (3) necessity arising from that severance, all considered “with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect.” Id. at 291 (quoting Oprin v. Morrison, 230 Mass. 529 , 533 (1918)).

Plaintiff argues that as a result of the 1806 Setoff, Parcel 2 and the Smith Parcel had frontage on the Path, but Parcel 1 was landlocked; as a result the 1840 Setoff, which combined Parcels 1 and 2 and divided them into Parcels 7 (the Jackson Parcel), 8 (Locus), and 9, created an easement by necessity over the Jackson Parcel to the Path for the benefit of Locus. Plaintiff points out that the 1840 Setoff satisfies the requirement of unity of title because the Heirs owned all the land originally comprising Locus, the Jackson Parcel, and Parcel 9 (i.e. Parcels 1 and 2) as tenants in common, and the 1840 Setoff severed unity of title by dividing the land into three parcels, two of which were landlocked. Plaintiff contends that it is unreasonable to assume that the parties to the 1840 Setoff intended to combine one parcel that had frontage on the Path (Parcel 2) with another parcel that lacked such frontage (Parcel 1) to create two landlocked parcels (Locus and Parcel 9). Rather, the intent behind the 1840 Setoff was to create three new, roughly equivalent parcels and orient them to allow two of them to have access to the Path through an easement over the third.

Jackson, however, argues that the Smith Deed conveyed frontage on the Path to the Smith Parcel such that in 1806 both Parcels 1 and 2 lacked frontage on the Path and were landlocked; as a result the 1840 Setoff could not have created an easement by necessity for Locus over the Jackson Parcel to the Path because the Jackson Parcel did not have frontage on the Path. Jackson also argues that the Smith Deed did not completely sever access to the Path from Parcels 1 and 2 because Parcel 3, which abutted Parcel 2, had frontage on the Path and, prior to the 1806 Setoff, Parcel 3 was part of the land inherited by the Heirs and held by them as tenants in common. Thus, Jackson contends that the 1806 Setoff created an easement by necessity for Locus to access the Path over Parcel 3. [Note 9]

If Plaintiff’s interpretation of the Northern Boundary is correct, then Plaintiff establishes that the 1840 Setoff created an easement by necessity in Locus to access the Path over the Jackson Parcel. Unity of title would exist because the land originally comprising Locus, the Jackson Parcel, and Parcel 9 (i.e. Parcels 1 and 2) was owned by the Heirs as tenants in common; severance of unity of title would occur because Parcels 1 and 2 were combined and divided into three separate parcels with different owners. Necessity for an easement over the Jackson Parcel would have arisen from that severance because Locus and Parcel 9 were landlocked, and the elements for an easement by necessity would be met as a result of the 1840 Setoff. [Note 10] If Jackson’s interpretation of the Northern Boundary is correct, then the 1840 Setoff would not have created an easement by necessity over the Jackson Parcel to access the Path because the Jackson Parcel would not have had frontage on the Path. I shall consider each interpretation of the Northern Boundary in turn.

A. The Northern Boundary.

The parties agree that the description in the Smith Deed begins south of the Path, but differ on the location of where the description crosses the Path (the “Crossing”) to the Path’s northern side to form the Smith Parcel. According to Martin Loria, Plaintiff’s title expert, the Crossing is at the boundary between Hannah Luce’s land prior to the 1806 Setoff and the Stewart Land, the adjoining parcel on the east. Following the Smith Deed’s description, the Smith Parcel’s boundary then proceeded twenty-eight rods west along the north side of the Path to a stake and stones, then six and a half rods due north to a stake and stones, then east until it reached the Stewart Land at a stake and stones that was eight rods north of the Path, and then south until it reached the starting point.

Plaintiff argues that placing the Crossing at this location is correct because it creates an almost rectangular parcel that “closes” on the north side of the Path, noting that the remaining land conveyed to Smith (the Southern Land) is “otherwise bounded on the northerly by [the Path].” This in turn would reflect an intent to exclude conveying any portion of the Path to Smith because Plaintiff argues that the Path was the primary, if not sole, access to the Heirs’ land. Additionally, Plaintiff justifies his location of the Crossing by arguing that it is consistent with the 1806 Setoff’s description of the southern border of Parcel 1, which abuts the northern border of the Smith Parcel, because Parcel 1’s southern border is twenty-seven rods long and the Smith Deed requires the southern boundary of the Smith Parcel to “extend[] westerly by the north side of [the Path] twenty eight rods to a stake and stones.” [Note 11] Furthermore, the southeast corner of Parcel 1 and the northeast corner of the Smith Parcel are both defined by a stake and stones eight rods north of the Path.

Jackson’s title expert, Robert Funke, testified, however, that the Crossing is actually located further west than Plaintiff claims, specifically at the point on Plan No. 41103A where the Tisbury-West Tisbury line meets the Path. Following the Smith Deed’s description from this point twenty-eight rods west would, according to a sketch attached to Funke’s affidavit, extend to the border of Parcel 2 and Parcel 3 and then six and a half rods north. The next step of proceeding due east to the land of Benjamin Stewart would actually make the Northern Boundary longer than twenty-eight rods and mean that the Smith Parcel extended along the entire southerly boundaries of Parcels 1 and 2, thereby cutting off frontage on the Path for Parcels 1 and 2. Jackson argues that the Crossing must be located at the Tisbury-West Tisbury line to comport with Plan No. 41103A. [Note 12]

Plaintiff points out that Jackson’s interpretation of the Smith Parcel boundaries makes no sense because it would result in the Smith Parcel not closing. As a result, Plaintiff argues, Jackson’s interpretation would require the Heirs to have conveyed to Smith the fee interest in the Path as there would be no delineation between the Southern Land and the Smith Parcel. Plaintiff contends that it would be highly unusual to convey the fee interest in a road that provides the principal, if not the only access, to one’s land. Jackson argues that this was not unusual because at the time, roads were considered easement passages over land and that conveyancers at the time would have known this.

The trial record contains no evidence of the Smith Parcel’s size or the exact location of the Southern Land’s boundaries. The Smith Deed, however, is the earliest deed in the conveyance of Hannah Luce’s land and sets out the boundaries of the Smith Parcel; all later deeds should be examined in reference to the Smith Deed. The legal description of the Smith Parcel is of a parcel that appears to close because three points of reference are denoted clearly by a “stake and stones” and the fourth ends at the Path, which is also where the description begins. The last line of the description, “otherwise bounded on the northerly by [the Path],” does not appear to be part of the Smith Parcel’s boundary because the earlier part of the description notes that the Smith Parcel’s southern boundary extends “westerly by the north side of [the Path].” Describing land as being “bounded on the northerly by [the Path]” necessitates that said land must be south of the Path; thus, this last line simply notes that the Path is the Southern Land’s northern boundary. The legal description of the Smith Parcel, thus, would appear to exclude the Path from being conveyed and creates two separate parcels: the Smith Parcel and the Southern Land. Therefore, it appears that Plaintiff’s interpretation of the Northern Boundary is consistent with the legal description of the Smith Parcel.

Jackson’s interpretation would result in a legal description of the Smith Parcel that does not close because the description would begin on the Path at the Tisbury-West Tisbury line and end on the Path at the boundary between Hannah Luce’s land prior to the 1806 Setoff and the Stewart Land, the adjoining parcel on the east. In addition, Jackson’s interpretation would have the easterly boundary longer than the eight rods described in the Smith Deed. Moreover, Jackson’s interpretation would result in the Smith Deed conveying the fee interest in part of the Path to Smith even though the Smith Deed contains no language acknowledging such action and actually describes the Smith Parcel’s southerly boundary as excluding the Path from conveyance. [Note 13] When asked about the Smith Parcel not closing, Attorney Funke stated that the Smith Parcel did indeed close because he “extrapolated” the words “easterly to the point of beginning” from the language “otherwise bounded on the northerly by [the Path].” As stated above, this language does not appear to refer to the Smith Parcel’s boundary, and Attorney Funke’s attempt to extrapolate a different meaning from it appears misconstrued.

Moreover, I cannot determine why Plan No. 41103A would require that the Crossing be located at the Tisbury-West Tisbury line on said plan. After repeated questioning on cross-examination Attorney Funke could not explain why Plan No. 41103A corroborates his opinion of the Crossing’s location. [Note 14] Therefore, it does not appear that there is any evidence to support Jackson’s contention that the Crossing is located in the vicinity of the Tisbury-West Tisbury line.

Language in the legal description of Parcel 1 and Parcel 3 supports Plaintiff’s interpretation. According to the 1806 Setoff, Parcel 3’s western boundary runs “due south . . . till it comes to the Chakama path, then easterly by said path till it comes to the range of the westerly line of the dower [Parcel 2].” According to Jackson, this southerly boundary would intersect the Smith Parcel, not Parcel 2. [Note 15] The 1840 Setoff description is somewhat ambiguous and does not help either analysis because it describes the western border of the land to be divided (i.e. combined Parcels 1 and 2) as running south “to Tekamah Path so called [Plaintiff’s position], or to the land of said Thomas Smith [Jackson’s position]; thence by the land of said Smith, sixty nine rods to the first mentioned bound” (emphasis supplied). The 1840 Setoff, however, requires that the combined Parcels 1 and 2 have identical eastern and western boundaries of 172 rods. Jackson’s analysis would require the Northern Boundary to extend west from the Stewart Land at first parallel to the Path and then to the point where the Path curves northward to meet the intersection of the southeast corner of Parcel 3 and the southwest corner of Parcel 2 (the “Intersection”). To completely cut off frontage on the Path for Parcel 2, Jackson’s analysis would require the first part of the Smith Parcel description to proceed west then northwest along the upward curve of the north side of the Path until it reached the Intersection, and then proceed six and a half rods north. As a result of the Path’s northwestern curve, the Intersection would already be some distance north of where on the east the Path intersected the Stewart Land. The western boundary of the combined Parcels 1 and 2 would, thus, begin six and a half rods north of the Intersection while the eastern boundary would begin eight rods north of the Path’s intersection with the Stewart Land. Therefore, the western boundary would begin further north than the eastern boundary and could not be of identical length as described in the 1840 Setoff.

As discussed, supra, the description in the Smith Deed is the most accurate description of the Smith Parcel’s boundaries because the Smith Deed was the first deed in existence and is the only deed to describe the Smith Parcel’s boundaries, which are at issue in this case. Therefore, I find that the Northern Boundary is in the location as described by Plaintiff.

As a result, I find that the 1840 Setoff, not the 1806 Setoff, eliminated frontage on the Path for Locus. As Plaintiff’s interpretation of the Northern Boundary is correct, I find that the 1840 Setoff satisfies the requirements for an easement by necessity from Locus to the Path over the Jackson Parcel for the reasons described above.

II. The Commission’s Arguments. [Note 16]

The Commission argues that expert testimony by Attorneys Loria and Funke is inadmissible because the expert testimony went to the ultimate legal issue of the case. “[E]xpert testimony] otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Mass. Guide to Evidence § 704 (2010). See Simon v. Solomon, 385 Mass. 91 , 105 (1982) (“expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision even if the expert's opinion touches on the ultimate issues that the jury must decide”). See also Commonwealth v. Lacorte, 373 Mass. 700 , 705 (1977); Commonwealth v. Montmeny, 360 Mass. 526 , 527-528 (1971).

Despite this language, the Commission, to support its argument, quotes a note to Section 704, which states that “[l]egal questions, as to which testimony is not permitted, should be distinguished from factual conclusions, as to which testimony is proper.” Mass. Guide to Evidence § 704, n. illustrations (2010). The Commission ignores the next sentence of this note, which states that “[t]he line between a ‘conclusion of law’ and an ‘ultimate factual issue’ is sometimes blurred” and includes examples of cases where experts have testified as to factual issues and given an opinion involving a legal issue. See id. See e.g. Commonwealth v. Little, 453 Mass. 766 , 769 (2009). Although each expert did state their opinion on the existence of an easement by necessity, the major focus of their testimony involved an explanation of deed interpretation for the court to determine the Northern Boundary. Therefore, I find that expert testimony by Attorneys Loria and Funke is admissible.

The Commission points out that Richard Luce did not sign the 1804 Setoff and that therefore Plaintiff cannot prove that the Heirs had a presumed intent to establish an easement over the Jackson Parcel to the Path. The Commission argues that Richard Luce must not have concurred with the 1804 Setoff because Parcel 1 would have been the only landlocked parcel. The Commission also claims that Locus and the surrounding land has been continuously described as wood lots or wood land from the 1806 Setoff until 1971, when Locus was conveyed to George P. Silva, and argues that historically, wood lots had a specific function as being a fuel source for the owner’s residence. In addition, the Commission points out that Richard Luce, the owner of Parcel 1, lived to the north of Parcel 1, and argues that the most direct route between Locus and Richard Luce’s residence would be via Sailor’s Burying Ground Road, a road to the north of Locus, not the Path. The Commission points to the presence of several woods roads on plans of Locus from 1982 and 1992 as evidence that woods roads providing access to Locus from the north existed. The Commission claims that the parties to the 1840 Setoff could not have intended to create easements for residential access when none of them lived in the vicinity of the land in question, and that Plaintiffs cannot prove the presence of an easement by necessity. Alternatively, the Commission argues that any easement by necessity in favor of Locus should be deemed to run northerly and be limited to the right to obtain wood.

The Commission’s arguments are unpersuasive because they are not supported by the trial record. The Commission did not produce any evidence at trial. The Commission’s argument about Richard Luce’s failure to sign the 1840 Setoff and his intent are speculative at best. [Note 17] There is no evidence that the woods roads that appear on the plans of Locus from 1982 and 1992 actually existed in the 1800s nor is there any evidence that they were used to access Locus. Furthermore, there is no evidence in the trial record that the Luce family accessed their land, including Locus, solely for the purpose of obtaining wood. As a result of the foregoing, I find that the trial record does not support the Commission’s arguments.

As result of the foregoing, I find that an easement by necessity exists from Locus to Stoney Hill Road over the Jackson Parcel.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: October 27, 2010