ROBERT D. TALMO v. EDGAR R. PIHL, PHYLLIS PIHL, CARLETON J. BUCKLEY, and HEIDI PIHL-BUCKLEY

Plaintiffs initiated this action on February 18, 2009, by filing a complaint seeking a declaration that the Defendants have not acquired an easement by prescription to travel over land owned by Plaintiff and permanently enjoining Defendants from that use. On March 20, 2009, Defendants filed an answer, which included counterclaims seeking a declaration that Defendants have the benefit of an easement by implication, a declaration that Defendants have acquired an easement by prescription, and a count for trespass against Plaintiff for blocking Defendants’ access.

On December 16, 2010, Defendants filed a motion for summary judgment on Counts I and II of the counterclaim (easement by implication and easement by prescription) and Plaintiff cross-moved for summary judgment on all counts of the Amended Complaint and Counterclaim. A hearing was held on March 17, 2011, at which all parties were heard. The summary judgment record includes affidavits of Plaintiff; Plaintiff’s counsel; Defendants; and their neighbors, George Hanson, Dudley Stephan, and Tara Alves; deposition testimony of Plaintiff, Edgar Phil, and Phyllis Phil, as well as Defendants’ answers to interrogatories propounded by Plaintiff, in addition to the parties’ briefs and submissions filed in compliance with Land Court Rule 4. The material facts, taken largely from Plaintiff’s Statement of Material Facts, are not in dispute.

1. Plaintiff is the record owner of a certain parcel of land and the buildings thereon located at 28 Nixon Road, Framingham (Plaintiff’s Property).

2. Plaintiff acquired title to Plaintiff’s Property by deed dated August 19, 1999, recorded with the Middlesex South County Registry of Deeds in Book 30602, at Page 233. [Note 1]

3. Prior to September 15, 2009, Defendants Edgar R. Pihl and Phyllis Pihl were the record owners of a parcel of land and the buildings thereon abutting Plaintiff’s Property, located at 30 Nixon Road, Framingham (Defendants’ Property). During the course of this lawsuit, the Pihls conveyed Defendants’ Property to the Buckleys for nominal consideration, by deed dated September 15, 2009, recorded in Book 53557, at Page 520 (Buckley Deed).

4. The Pihls acquired title to Defendants’ Property through two deeds, one a deed from David P. Mayo and Eleanor L. Mayo (Mayos) dated October 15, 1956, recorded in Book 8835, at Page 001 (First Phil Deed), and the second dated December 30, 1970, recorded in Book 11942, at Page 429, from Bertha F. Slade and Edward G. Slade (Second Phil Deed).

5. The land acquired by the Pihls under the First Pihl Deed was created by the division of land owned by the Mayos, and has 238.51 feet of frontage on Nixon Road, a public way. Plaintiff’s Property is part of the remainder of land owned by the Mayos after they executed the First Phil Deed.

6. The First Pihl Deed did not grant to the Phils any express right to pass over lands of the Mayos. In particular, the deed did not grant any rights over a parcel of land to the southeast (now part of Plaintiff’s Property), approximately 50 feet in width. In fact, the First Pihl Deed describes that parcel as an abutting property as follows:

SOUTHEASTERLY: by a parcel of land about 50 feet in width, as shown on said plan, one hundred ninety (190) feet.

7. The First Pihl Deed also contains the following language:

Meaning and intending to convey and hereby conveying a lot of land…as shown on plan of land entitled “Framingham, Massachusetts, plan showing subdivision of land of David Mayo Aux. Scale 1” = 40’, Aug. 13, 1956, Wm. F. Drake, Registered land Surveyor”

This plan, endorsed by the Framingham Planning Board “Approval Under the Subdivision Control Law Not Required,” was recorded as Plan 1746 of 1956 (Phil Plan).

8. The Pihl Plan shows that the parcel being conveyed to the Pihls has 238.51 feet of frontage on Nixon Road, and does not show any easements over abutting parcels.

9. The Pihl Plan plainly depicts an unbroken stone wall running from the southeast corner of the Pihl Parcel (at the northeast end of the 190 foot southern boundary) along the western edge of Nixon Road and the eastern edge of the abutting parcel to the south, which is about 50 feet in width, to the southeast corner of that parcel, which abuts the land conveyed by the First Pihl Deed on the southeast. The parcel of land about 50 feet in width is referenced in the last call in the First Pihl Deed and is now part of Plaintiff’s Property.

10. From the southeast corner of Defendants’ Property as shown on the Pihl Plan, this stone wall runs precisely 32.23 feet at a bearing of S 0º - 55’ W to a bound with a drill hole, and then precisely 24.67 feet at a bearing of S 19º - 49’ 15”E to another bound with a drill hole, which bound is depicted as constituting the southeast corner of the 50 foot wide parcel, then owned by the Mayos.

11. According to the Pihl Plan, which was incorporated by reference in the First Pihl Deed, one could not physically travel in a vehicle from the Pihl Parcel to Nixon Road by crossing over Plaintiff’s Property due to the location of the stone wall.

12. An aerial photo of the area at issue taken some time between 1952 and 1955 shows no path over what is now Plaintiff’s Property to get to or from Defendants’ Property.

13. When the Pihls first bought Defendants’ Property, it was vacant land. Before he built the house on Defendants’ Property in or around 1956/1957, Edgar Pihl did not reside in Framingham and Phyllis Pihl had never seen Defendants’ Property before the Pihls purchased it in October of 1956.

14. By deed dated February 20, 1962, recorded on February 21, 1962, in Book 9989, at Page 92, David P. Mayo, Eleanor L. Mayo, Lewis W. Mayo and Elisabeth Mayo conveyed to Alfred J. Crowley and M. Ruth Crowley, land which is a portion of Plaintiff’s Property, abutting Defendants’ Property. This deed describes the premises conveyed by reference to a “Plan of Land in Framingham, Massachusetts, Scale 1”= 40’, January 13, 1962, M & M Engineering Serv.” (1962 Plan). The 1962 Plan shows a gap in the stone wall between the 50 foot wide lot immediately south of the Pihl Parcel and Nixon Road. With regard to Lot 7B shown on the 1962 Plan, this deed reserves to the grantor the right to use Lot 7B for access to other land of the grantors lying westerly of the lands granted, but makes no general or specific reference to rights of any other person, including the Pihls, to use Lot 7B.

15. By deed dated October 6, 1966, and recorded on October 7, 1966, in Book 11228, at Page 272, Alfred J. Crowley and M. Ruth Crowley conveyed to Edward G. Slade and Bertha F. Slade the land described in the preceding paragraph. Edward G. Slade and Bertha F. Slade were predecessors-in-title to Plaintiff’s Property, having acquired various portions of it beginning in 1966.

16. By deed dated July 12, 1967, and recorded on July 14, 1967, in Book 11356, at Page 500, David P. Mayo, Eleanor L. Mayo, Lewis W. Mayo and Elizabeth N. Mayo conveyed to Edward G. Slade and Bertha F. Slade, the land shown on “Plan Showing Land to be conveyed to Edward G. and Bertha F. Slade, Nixon Road, Framingham, Mass., May 20, 1967, The Bay Path Associates,” which was recorded as Plan 788 of 1967. This deed conveyed the southern portion of the 50 foot wide parcel of land abutting the Pihl Parcel on the south, and the large western segment of what is now Plaintiff’s Property to the Slades.

17. The Second Pihl Deed was recorded immediately before a deed from the Pihls to the Slades, as part of a land swap between the Pihls and the Slades. By deed dated December 30, 1970, recorded in Book 11942, at Page 430, the Pihls conveyed to the Slades, land which to that point was part of 30 Nixon Road, but which became part of 28 Nixon Road. This 1970 land swap did not convey any portion of the area in dispute in this action.

18. Both the second Pihl Deed and the deed referenced in the preceding paragraph reference a plan entitled “Plan of Land in Framingham, Massachusetts, November 9, 1969, Ernest F. Moran, Reg. Land Surveyor,” Plan No. 23 of 1971 (1971 Plan).

19. Defendant’s Property is bounded southerly by Plaintiff’s Property for 122.85 feet and westerly by Plaintiff’s Property for 289.17 feet, according to the 1971 Plan.

20. Notwithstanding the fact that Defendants’ Property has frontage along Nixon Road, Defendants access Nixon Road by crossing over a portion of their 122.85 boundary with Plaintiff’s Property. They have been doing so since 1956 and their daughter and son-in-law who now own Defendants’ Property do so as well.

21. On or around May 15, 975, Edgar R. Pihl signed a document which reads, “To whom it may concern: With permission of the owner, we cross over property owned by Edward G. and Bertha F. Slade 28 Nixon Road, Framingham, Mass., [Note 2] in order to enter our driveway at 30 Nixon Road. [Note 3] However, we have full understanding and agreement that this crossing area is not to be considered or classified as a right of way” (Phil Permissive Use Statement).

22. After Edgar Pihl signed the Pihl Permissive Use Statement, he gave it to the Slades.

23. The Slades never revoked the permission that they granted for the Pihls to cross over Plaintiff’s Property to get to Nixon Road.

24. On or around March 15, 1998, Mr. Buckley and Ms. Pihl-Buckley executed a statement substantively identical to the Pihl Permissive Use Statement. (Buckley Permissive Use Statement).

25. The Buckley Permissive Use Statement was also given to Bertha F. Slade.

26. Plaintiff received the Pihl Permissive Use Statement and the Buckley Permissive Use Statement at the closing when he purchased Plaintiff’s Property and relied upon these statements in purchasing Plaintiff’s Property.

27. The Buckley Deed states as follows, in pertinent part:

Included in this transfer are any and all rights we may have in a portion of the adjoining parcel presently owned by Robert D. Talmo (by virtue of a deed at Book 30602, Page 233) that is used as a driveway providing access from Nixon Road to our property.

28. Even though the Buckley Deed purports to grant rights in Plaintiff’s Parcel, the Phils did not have any record right over Plaintiff’s Property to grant at the time of the Buckley Deed.

29. On January 8, 2009, Plaintiff served on Defendants and recorded a Notice to Prevent Acquisition of Easements in Book 52080, at Page 292.

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“Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat’l Bank, 595 F.2d 994, 997 (5th Cir. 1979)).

In considering the materials in support of any motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). However, where, as here, the court is faced with cross-motions, the court must analyze the parties’ legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. Here, Defendants have the burden to establish both the existence of an easement by implication and a prescriptive easement. Therefore, Plaintiff may succeed in his motion by submitting affirmative evidence that negates any essential element of both theories of Defendants’ case or by demonstrating that “proof of [any such] element is unlikely to be forthcoming at trial.” Flesner v. Technical Comm. Corp., 410 Mass. 805 , 809 (1991).

At issue in the instant matter is the question of whether Defendants have the right to pass and re-pass over Plaintiff’s Property to reach Defendants’ Property from Nixon Road. Defendants’ assertion of rights is two-fold: first, they assert that Defendants’ Property is benefited by an easement by implication arising in 1956 through the First Pihl Deed. Defendants assert in the alternative that they have acquired an easement by prescription by virtue of their use of the disputed area since 1956. In response to each count, Plaintiff claims that Defendants will be unable to prove at least one element. Plaintiff argues that the Defendants’ claim for an easement by implication must fail because the First Pihl Deed conveyed Defendants’ Property by reference to a plan which shows a stone wall blocking access from Defendants’ Property across Plaintiff’s Property to Nixon Road and therefore the undisputed facts do not support an easement by implication as a matter of law. With respect to Defendants’ claim of prescriptive rights, Plaintiff asserts that the summary judgment record establishes that Defendants’ use of the disputed area was permissive when it began and permission was never revoked, thereby defeating a claim of prescriptive use as a matter of law.

Based on the material facts established by the summary judgment record, this court is persuaded by the arguments articulated by Plaintiff in Plaintiff’s Memorandum in Support of Motion for Summary Judgment (Plaintiff’s Memorandum). For the reasons generally set forth herein, and more substantially delineated on pages eight through thirteen of Plaintiff’s Memorandum, this court finds and rules that Defendants’ Property is not benefited by either an easement by implication or an easement by prescription. [Note 4]

Easement by Implication

“[I]mplied easements have been recognized 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. 656 -57 (2005) (internal citations omitted). “The implied easement arises not so much from necessity alone as from the presumed intention of the parties . . . .” Hurley v. Guzzi, 328 Mass. 293 , 296 (1952). “That presumed intention is 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.” Zotos, 63 Mass. at 657 (internal quotations omitted). “[T]he presumption of intent in such cases is a presumption of law which ‘ought to be and is construed with strictness.’” Joyce v. Devaney, 322 Mass. 544 , 549 (1948) (quoting Orpin v. Morrison, 230 Mass. 529 , 533 (1918)). “The burden of proving the intent of the parties to create an easement which is unexpressed in terms in a deed is upon the part[ies] asserting it.” Mt. Holyoke Realty Trust Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933). In this case, Defendants bear the burden.

The deed upon which Defendants rely to establish an easement by implication conveyed Defendants’ Property by express reference to a plan which shows a stone wall blocking passage from Defendants’ Property over Plaintiff’s Property to Nixon Road. This court is persuaded that the presence of this stone wall on the Pihl Plan defeats Defendants’ claim of an easement by implication. An aerial photograph over the parties’ properties taken in 1952-1957, which was used during the deposition of Edgar Pihl, is consistent with the Pihl Plan, showing no access to Nixon Road. The physical presence of this stone wall would have made vehicular passage to Nixon Road impossible. The 1956 conveyance of Defendants’ Property by reference to the Pihl Plan is significant to the intent of the grantors at the time of the conveyance. The grantors conveyed Defendants’ Property with reference to a plan showing that the area now claimed by Defendants was blocked. The plan also showed that the parcel being conveyed had adequate frontage along the street. Where a deed refers to a plan, the plan “becomes a part of the contract in so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.” Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926). Given this set of facts, this court concludes that the grantors of the First Pihl Deed did not intend to create an easement by implication.

Easement by Prescription

In order to succeed in their claim of an easement by prescription, Defendants must prove their use of the property claimed was adverse, open, notorious, and continuous for not less than twenty years. See Tucker v. Poch, 321 Mass. 321 , 323 (1947). Express or implied permission will defeat a claim of an easement by prescription. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008). In the instant case, it is undisputed that Defendants used the disputed area with the permission of Plaintiff’s predecessors-in-title, the Slades. Defendants Edgar Pihl, Carleton Buckley, and Heidi Pihl-Buckley signed written statements attesting that their use of Plaintiff’s Property was “with permission of the owner.” Consistent with those statements, both Edgar Pihl and Phyllis Pihl testified in depositions that the Slades’ permission was never revoked, from which this court infers that the Pihls’ use was with the permission of the Slades. Accordingly, that use cannot form the basis of a prescriptive easement. This court acknowledges that Defendants have argued that the court should not necessarily conclude that the statements signed by Edgar Pihl, Carleton Buckley, and Heidi Pihl-Buckley establish with certainty that their use was permissive, but the argument is hollow in the face of the writings themselves and the consistent deposition testimony. A party cannot create a material issue of fact by contradicting statements previously made under oath. See O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905 , 906 (1993).

Accordingly, Defendants’ Motion for Summary Judgment hereby is DENIED and Plaintiff’s motion for summary judgment hereby is GRANTED.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 31, 2011