WILLIAMS BROS. OF MARSHFIELD v. GEORGE PECK, MARJORIE PECK, TELEMARK LLC, USDA FARM SERVICE AGENCY as successor-in-interest to USA FARMERS HOME ADMINISTRATION and MUTUAL BANK as successor-in-interest to MUTUAL FEDERAL SAVINGS BANK OF PLYMOUTH COUNTY

Introduction

This is a case with two parts, both involving the workings of the registered land system.

In the first, the issues center on the liability (if any) of a prior holder of a certificate of title to registered land, who was conveyed that land by mistake and made alterations which allegedly affect its future use and market value, to its intended (and current) owner. Defendants George and Marjorie Peck (“the Pecks”) were the certificate holders conveyed the land by mistake and who altered it believing they had a right to do so. Plaintiff Williams Bros. of Marshfield (“Williams Bros.”) was the intended owner at the time of the alteration, and subsequently (years later) the actual certificate holder after the mistaken conveyance to the Pecks was discovered and corrected.

In the second part of the case, the issues turn on the applicability of the doctrine of merger to registered land. More precisely, the question presented is whether appurtenant rights over abutting recorded land, which continue to appear on the registered property’s certificate of title, no longer exist because the two parcels came into common ownership (“merged”), the allegedly “burdened” parcel was conveyed out of common ownership first, neither this parcel’s deed nor any subsequent deed included language referencing the burden, and no mention was made of the burden to the new owners. Here, the Pecks are the owners of the registered land whose certificate reflects the benefit of the appurtenant rights. [Note 1] Williams Bros. is the owner of the recorded land alleged to be burdened by those rights, deeded it post-merger by the common owner without language or reference, written or oral, to the burden.

The case was tried jury-waived. I sat as both a judge of the land court and, for matters outside its jurisdiction, by interdepartmental assignment as a judge of the superior court. Based on all the admissible evidence and my assessment of the weight, credibility, and proper inferences to be drawn from that evidence, I find and rule as follows.

Facts

Both the Williams Bros. land and the Peck property, described in more detail below, are located off High Street in Carver and were once part of a larger parcel owned by James Webb. Mr. Webb divided that parcel in 1887, using the edge of a marsh as the boundary between the two parts created. The land north of the marsh, approximately 40 acres of “wood and upland,” was deeded to Alfred DeRose and, after many intervening conveyances, is currently owned by Williams Bros. Mr. Webb retained the marsh and the land to its south, approximately 20 acres of “cranberry bog and swamp lands,” and his deed to Mr. DeRose reserved the following appurtenant rights for the benefit of the land he retained:

• “rights of way to and from said cranberry bog and swamp lands and around the same and the right to take sand and gravel from the adjoining upland for the purpose of maintaining said cranberry bogs and of making said swamps into and maintaining them as cranberry bogs”
• “the right to build and maintain not more than three buildings on the upland adjoining said bogs or swamps with the necessary rights of way to and from the same”
• “the right to enter and cut down any trees shading said swamp or bog land without being liable for trespass provided the Grantee neglects to do so.”

Deed, Webb to DeRose (Apr. 14, 1887) (Trial Ex. 2A). The Peck property is a portion of this retained land.

To those not familiar with cranberry farming, the right “to take sand and gravel from the adjoining upland for the purpose of maintaining said cranberry bogs …” may need explanation, which I take verbatim from Fielding v. Old Tuck Cranberry Corp., 14 LCR 292 (2006) (Piper, J.).

Sand has been used to cultivate cranberry bogs since the early 1800s, at least. There are different techniques for applying sand to cranberry bogs, and different benefits that result from its application. To reclaim a bog which has fallen into disuse or disrepair, cranberry growers often need to excavate the existing topsoil and then apply approximately six to eight inches of fresh, suitable sand on the bed of the bog. Growers proceed similarly when building a new bog, planting a new variety of cranberry, or when fixing poor drainage or flooding issues on a cranberry bog. Sand also serves as a medium for vine growth with new plantings. For this purpose, growers apply approximately one-half inch of sand after the second season, and if needed after the first season, to anchor the cranberry runners, to promote proper rooting, and to encourage the growth of upright stems. Additionally, growers long have used a sanding technique where they apply one-half inch to one inch of sand to the bog every two to five years. This technique, sometimes called maintenance sanding, helps with pest and weed control, improves soil aeration, provides protection against drought and frost, and protects cranberry vines from damage during harvest. Applying too much sand can harm a cranberry bog by compressing the subsoil, which can leave a bog’s bed out of grade. Sanding also often reduces the crop yield for that particular year. Although recurring maintenance sanding is a recognized technique which has been used for many generations, not all cranberry growers sand their cranberry bogs, particularly today.

14 LCR at 295. [Note 2]

Sand rights are extraordinarily intrusive. Unless otherwise limited (and these are not), they entitle the owner of those rights to excavate and remove sand from any place subject to the burden, at any time, and thus effectively prevent the development of the burdened land for almost any purpose whatsoever. Indeed, so long as the rights remain outstanding, perhaps the only practical use that can be made of the burdened land is as a woodlot. Even agricultural use would be dubious since crops could be disturbed at any time by sand excavations, and the fertilizers and other chemicals associated with those crops might arguably contaminate the sand underneath.

The burdened land and the retained (benefited) land remained in different ownership for many years. Mr. DeRose appears to have had financial problems, and the burdened parcel went to sheriff’s sale in 1909. It was purchased by Seth Finney, and subsequently sold by his widow to LeBarron Barker in 1921 for undisclosed consideration. Neither the Finney/Barker deed, nor any subsequent deed for that land down to the present time, contained anything to suggest it was subject to sand rights, and the record does not indicate if those rights were ever exercised or asserted at any time prior to the Pecks’ actions, described more fully below, which led to the filing of this lawsuit. The appurtenant rights language, however, continued to appear on each of the benefited land’s deeds.

The benefited land became registered in 1942 [Note 3] and both the registration decree and the subsequent certificate of title contained the following language:

There is appurtenant to the land hereby registered the following rights:

(1) A right of way over land now or formerly of LeBarron R. Barker;

(2) The right to take sand to build and maintain bog from the land of said Barker;

(3) The right to build bog houses on said Barker property wherever most convenient to bog;

(4) The right to cut trees on said Barker land when same shade the bog;

all as set forth in the deed given by Narcisse N.S. Daudelin to Emile Leger, dated May 10, 1915, duly recorded in [Plymouth County Registry] Book 1215, Page 195.

Celina Dorais, Registration Case No. 18143, Decree (Jun. 24, 1942) (Fenton, J.). [Note 4] Even though this differs from the reservation of rights in the Webb/DeRose deed (the rights in the Decree are more expansive), [Note 5] the Decree language controls. [Note 6] See Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 388 (1992). Also, regardless of whether the appurtenant rights appeared on the Barker land deed, appeared on its predecessors’ deeds, or had never actually been granted, the Decree put them in place and burdened the Barker land at the time of the Decree. Id. [Note 7]

The now-registered land and the Barker land came into the common ownership of the Edgewood Trust on April 30, 1976. See Deeds, Bumpus to Edgewood Trust (Jun. 6, 1975), [Note 8] Goudreau to Edgewood Trust (Apr. 30, 1976), [Note 9] and Goudreau to Edgewood Trust (Apr. 30, 1976). [Note 10] They were once again severed on September 2, 1976 when the Edgewood Trust, which retained the registered land, conveyed the Barker land to what appears to be a straw (the Ravenbrook Trust, with the same trustee as Edgewood) and that straw immediately conveyed the land to plaintiff Williams Bros. Deeds, Edgewood Trust to Ravenbrook Trust (Sept. 2, 1976), [Note 11] Ravenbrook Trust to Williams Bros. of Marshfield (Sept. 2, 1976). [Note 12] The consideration paid by Williams Bros. was $60,000. Neither the deed from Edgewood to Ravenbrook nor the immediately subsequent deed from Ravenbrook to Williams Bros. contained either language or reference to the burden of sand rights, nor was Williams Bros. informed of any such burden either orally or in writing. Both Edgewood and Ravenbrook knew at the time of the conveyance that Williams Bros. intended to develop the land into a residential subdivision.

Defendants George and Marjorie Peck are the current owners of registered land Lot 7, a subdivided part of the registered parcel retained by Edgewood after its conveyance of the Barker land to Williams Bros. The Pecks grow cranberries on a portion of that lot. Lot 7 was conveyed by Edgewood to Benjamin Gilmore II and his wife on August 28, 1978 (two years after Edgewood’s conveyance of the Barker land to Williams Bros.), [Note 13] subsequently conveyed back to Edgewood by the Gilmores on March 28, 1980, [Note 14] and then conveyed by Edgewood to the Pecks on May 16, 1986. [Note 15] Unlike the deeds to the recorded land previously owned by Barker and now Williams Bros., each of the deeds to the registered lots, as well as their resultant certificates of title, recited appurtenant rights to access and take sand from the Barker land.

In addition to Lot 7, the 1986 deed from Edgewood to the Pecks (and, subsequently, the Pecks’ certificate of title) also included registered land Lots 4, 5, 6, 8 and 9. This was a mistake. Edgewood had previously intended to include Lots 4, 5, 6, 8 and 9 in a deed to Ravenbrook Trust, and Ravenbrook intended to include them immediately thereafter in its deed to Williams Bros., but defects in those deeds (the lots were incorrectly described) prevented their registration. [Note 16] That failure left their registered ownership in Edgewood, which mistakenly included them (now correctly described) in the conveyance to the Pecks. [Note 17] The mistake was discovered years later, [Note 18] and the Pecks formally deeded those lots to Williams Bros. on April 18, 1998. [Note 19] Prior to this discovery and the corrective conveyance that followed, the Pecks expanded an existing cranberry bog on their land across the border onto registered land Lot 4, re-routed a pre-existing drainage ditch on registered land Lots 8 and 9, and expanded an irrigation pond from their land onto registered land Lot 8. None of these lots was ever subject to the appurtenant rights at issue in this case (none was ever part of the Barker land, nor burdened by the registration decree). These changes are alleged to have decreased the market value of those lots since they created new wetland areas, shrinking the area of buildable land. [Note 20] Williams Bros. seeks monetary compensation for that decrease.

In reliance on what they believed to be their valid and enforceable appurtenant rights, the Pecks also stripped the trees from 1.6 acres of Williams Bros.’ recorded property (the former Barker land) in preparation for sand excavation, and excavated and removed sand from two other areas on that parcel, turning them into sand pits. The Pecks contend that they have the right to remove sand from any spot on the former Barker land. Williams Bros. disagrees, contending that those rights have been terminated by merger without reinstatement, and seek damages for the sand pits and tree cutting.

Further facts are set forth in the discussion below.

Discussion

The Pecks’ Liability for their Alterations to Registered Lots 4, 8 and 9

I begin with the question of the Pecks’ liability, if any, for the expansion of their bog and the re-routing of the drainage ditch onto lots 4, 8 and 9 at a time when Williams Bros. was the intended owner of those lots but the Pecks were their registered owner, albeit by mistake. [Note 21] I find and rule that such liability can only exist if the “mistaken” owner has actual knowledge of the mistake.

The registered land system was designed for certainty. See G.L. c. 185 § 45 (judgments of registration “bind the land and quiet the title thereto…” and are “conclusive upon and against all persons, including the commonwealth”); Lasell College, 32 Mass. App. Ct. at 387 (purpose of land registration proceedings is “to provide a method for making titles to land certain and indefeasible”) (internal quotations and citations omitted). Thus, if a party holds a certificate of title to land, he may rely on that certificate, and act in complete confidence that he is the land’s owner, unless he has actual knowledge to the contrary. See G.L. c. 183 § 4 (discussing recorded land, applicable here by analogy) (conveyance “shall not be valid” as against any person, except the grantor, his heirs, devisees, and “persons having actual notice of it” unless properly recorded at the registry) (emphasis added); Killam v. March, 316 Mass. 646 , 651-52 (1944) (even if not on certificate, purchaser of registered land takes subject to unregistered lease for more than seven years if he has actual notice); Wild v. Constantini, 415 Mass. 663 , 667-69 (1989) (purchaser of registered land with actual notice of encumbrance that burdens his estate takes subject to that encumbrance, even if not on certificate).

Here there was no evidence, and certainly none persuasive, that the Pecks were aware they had been conveyed registered land lots 4, 5, 6, 8 and 9 by mistake. The conveyance of those lots was clearly stated on their deed. The grantor was the registered owner. They applied for and received a transfer certificate of title stating their ownership. So far as the record shows, they promptly conveyed the land to Williams Bros. when the mistake was brought to their attention.

Moreover, the Pecks’ actions on the land were open and obvious, conducted in good faith in furtherance of their cranberry growing. Surely Williams Bros. had some obligation to contact the Pecks at the time of these actions if it felt they were taking place on Williams Bros. land. It thus has no just cause for complaint, particularly given its failure to follow through with the proper registration of its deed at the time of the 1976 conveyance.

Damages are denied for a further reason. The alterations to Williams Bros.’ registered parcels are undisputed. What has not been proven is the monetary damage, if any, they caused. Clearly the area of buildable land has decreased due to the increased area of wetlands and consequent buffer zones, but the materiality of that decrease and its quantifiable effect on the market value of the land has not been shown to the requisite degree of certainty. As noted in Lowrie v. Castle, 225 Mass. 37 (1916):

[Damages] need not be susceptible of calculation with mathematical exactness, provided there is a sufficient basis for a rational conclusion. But such damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty. The nature of the business or venture upon which the anticipated profits are claimed must be such as to support an inference of definite profits grounded upon a reasonably sure basis of facts. When the elements, upon which the claim for prospective profits rests, are numerous and shifting contingencies whose relation to the wrong complained of is problematical, and such profits are not provable with assurance as a trustworthy result of the alleged cause, then there can be no recovery. Manifest ambiguities in ascertaining what would have been the course of events in the face of complicated factors, under circumstances which never have come to pass, and inherent difficulties in calculating the amount of prospective gains, prevent the recovery of damages. Pure chances lying between the alleged wrong and the anticipated profits, dependent upon unsettled conditions, render impracticable the assertion of cause and effect.

Id. at 51-52. See also Augat, Inc. v. Aegis, Inc., 417 Mass. 484 , 488-89 (1994); BBF, Inc. v Germanium Power Devices Corp., 13 Mass. App. Ct. 166 , 176-77 (1982); Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159 , 180-81 (1979).

Here, the alterations were to vacant land, never developed, and whose prospects of development (and what development) are uncertain. It was not clear at the time of trial, for example, whether the property would pass a percolation test, precisely what amount of land would be lost due to the additional wetlands and buffers (the type of wetland involved, and thus the required buffer, was undetermined), or whether the land “lost” would in any way be material to the type of residence that could be built there (for example, whether additional land from Williams Bros.’ adjoining property was available to compensate for the loss, or what residential amenities were at risk). Mr. Williams’ testimony that the loss in value would approximate 15% was unsupported by the identification of comparable properties, and without attempt to identify and link the factors, with appropriate adjustments, that might make those properties “comparables” and, if so, to what extent. Simply put, the evidence of monetary damage was insufficient to bring it within “the realm of reasonable certainty.” Lowrie, 225 Mass. at 51.

The Current Existence and Scope, if any, of Appurtenant Sand Rights Over the Former Barker Land Now Owned by Williams Bros.

I turn now to the second part of the case, which concerns the current scope and existence of the Pecks’ appurtenant rights, if any, to the recorded portion of the Williams Bros. property— the “Barker land” as referenced in the registration Decree and the Pecks’ certificate of title. Those rights were first created in 1887 and clearly established in the 1942 registration Decree.

As noted above, they are both significant and intrusive since they purport to grant, inter alia, “the right to take sand” from any location on the Barker (now Williams Bros.) land. If currently applicable, they effectively prevent the development of that land for almost any purpose whatsoever. [Note 22] The question for decision is whether they still exist.

The deed to Williams Bros. of the Barker land made no mention of these appurtenant rights, nor does any deed in that chain since 1909. [Note 23] Williams Bros. would have learned of the potential claim to such rights when it was conveyed registered land parcels 4, 5, 6, 8 & 9, the certificates to which contain that language, but that came in 1998, nearly twenty-two years after it purchased the Barker land whose deed chain (dating back to 1909) had no such reference. See Deed, Revenbrook Trust to Williams Bros. (Sept. 2, 1976) (Trial Ex. 22) (conveying Williams Bros. parcel; no reference to burden from appurtenant rights); Deed, Peck to Williams Bros. (Apr. 8, 1998) (Trial Ex. 27) (conveying registered land lots 4, 5, 6, 8 & 9, the certificates to which contain the “appurtenant rights” language). In any event, for the reasons discussed below, I find and rule that whether Williams Bros. was on notice or constructive notice of a potential claim, or whether such notice was irrelevant, the Williams Bros. parcel was not burdened by the appurtenant rights appearing on the Peck title. This is because they previously had been terminated by merger, and were not reinstated thereafter.

Easements are extinguished “by unity of title and possession of the two estates [the dominant and the servient] in one and the same person at the same time.” Ritger v. Parker, 62 Mass. 145 , 146, 147 (1851). This is known as the doctrine of “merger.” Any easements or encumbrances benefiting a later-severed part of the merged property, even if that property possessed appurtenant rights pre-merger, must be created anew. “[I]t is the creation of a new estate, and not the revival of an old one. And although he [the grantor] may make a grant of that particular land, which formerly constituted one of the separate estates, which coalesced in him, yet it is not with its former incidents, unless it is done by force of the grant itself, by such words of description as could bring them into being, by way of new grant.” Id. at 147. See also Busalacchi v. McCabe, 71 Mass. App. Ct. 493 (2008), which noted:

Massachusetts courts have recognized the doctrine of merger at least since the mid-nineteenth century. The doctrine requires that a servitude terminates when all the benefits and burdens come into single ownership. A servitude is a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor. When the dominant and servient estates come into common ownership there is no practical need for the servitude’s continued existence, as the owner already has the full and unlimited right and power to make any and every possible use of the land.

Id. at 497-98 (internal quotations and citations omitted). [Note 24]

This is true of registered land as well as recorded property. See Goldstein v. Beal, 317 Mass. 750 , 754 (1945) (discussing adjoining lots of registered land; “So long as there was a common ownership of the two parcels there could be no easement in favor of one lot operating as a burden on the other. If any easement came into existence it was only upon a severance of the common ownership”) (internal citations omitted). See also Carabetta v. Bd. of Appeals of Truro, 73 Mass. App. Ct. 266 , 268-71 (2008) (discussing merger in context of zoning law, noting that “the usual construction of the word ‘lot’ in a zoning context ignores the manner in which the components of a total given area have been assembled and concentrates instead on the question of whether the sum of the components meets the requirements of the by-law”) (internal citations and quotations omitted); Dubinsky v. Cama, 261 Mass. 49 , 56-57 (1927) (“Here again we think that the principles of the common law with respect to the interpretation and construction of deeds governs the interpretation and construction of certificates of titles under G.L. c. 185.”). It is significant that G.L. c. 185 § 46’s explicit protections (those that continue after registration unless and until the language of the certificate changes) are those (with certain limited exceptions) “from all encumbrances except those noted on the certificate.” G.L. c. 185 § 46 (emphasis added). See also G.L. c. 185 § 47 (registration judgment to set forth “encumbrances…to which the land or the owner’s estate is subject, and may contain other matter properly to be determined in pursuance of this chapter”) (emphasis added). While appurtenant rights (i.e. rights over other land that benefit the registered property) can be placed on the certificate, there is no requirement they be so. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 64 n. 6 (2009). And such appurtenant rights can disappear as a result of subsequent events even though the language has never been removed from the certificate of registration. See Lasell College, 32 Mass. App. Ct. at 390-91. [Note 25]

Further application of the usual rules of statutory interpretation fully corroborates this conclusion. A statute is not to be interpreted “as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed.” Brear v. Fagan, 447 Mass. 68 , 72 (2006). Here, long-established common law includes the doctrine of merger. The only explicit change to the common law in the registration statute is its continuing protection against encumbrances on the registered parcel. G.L. c. 185 § 46. A continuing protection of appurtenant rights to other land, no matter what, until the certificate language is changed, is neither explicit, necessarily implicit, nor a clearly expressed intent of the registered land statutes Indeed, logic leads to the opposite conclusion. A party claiming rights over another’s land has the burden of proving the existence of those rights. Duddy, 75 Mass. App. Ct. at 66. As between the owner of the purportedly “burdened” parcel and the owner of the “benefited,” it makes perfect sense that the purchaser of the parcel with the purported appurtenant right should be the one with the burden to ensure it still exists if he or she intends to rely upon it. It is they who will be advantaged by those rights. And it is they who will know from the face of their certificate what land those rights purport to burden and thus most easily can identify the title search that needs to be performed. A purchaser of the purportedly “burdened” parcel, with a title facially clear of any such burden, may not know where to look (i.e., the titles to which properties) and should not be put to the expense of a broad search of all nearby properties and perhaps those beyond. There is nothing, for example, that necessarily confines the benefit of “sand rights” to directly abutting or even nearby parcels.

A final point is also appropriate to note. The Registries do not review the continuing existence of appurtenant rights when transfer certificates are issued, and have no reason or power to do so. They simply carry forward the existing language on the face of the certificate without questioning it. Only this court can change a certificate’s language, and it will not even review that language unless proceedings are brought to do so. Consequently, as shown in Lasell College, supra, purported rights (in that case, an abandoned right to use a private right of way) can continue to appear on the certificate even when they are no longer valid. Simply put, there is no systemic assurance that the appurtenant rights still exist, and therefore can be no justifiable reliance by the certificate holder that they continue to exist just because they appear on the certificate. [Note 26] Application of the merger doctrine to registered land, with the consequent termination of pre-existing appurtenant rights appearing on the certificate, thus comports with case law, statutory construction, logic, policy, and practice.

Here, merger of the now-Peck and Williams Bros. parcels occurred when they came into common ownership on April 30, 1976. See Deed, Goudreau to Edgewood Trust (Apr. 30, 1976); [Note 27] Deed, Bumpus to Edgewood Trust (Jun. 6, 1975); [Note 28] Deed, Goudreau to Edgewood Trust (Apr. 30, 1976). [Note 29] They were once again severed on September 2, 1976 when the Edgewood Trust conveyed the Williams Bros. parcel to what appears to be a straw (the Ravenbrook Trust, with the same trustee as Edgewood) and that straw immediately conveyed the land to Williams Bros. Deed, Edgewood Trust to Ravenbrook Trust (Sept. 2, 1976) [Note 30]; Deed, Ravenbrook Trust to Williams Bros. (Sept. 2, 1976). [Note 31] The critical question, of course, is whether that severance intended to reinstate the former appurtenant rights benefiting the remaining land, including what is now the Peck parcel. Having considered all the evidence, I find that it did not.

I start by looking at the deed to the Williams Bros. parcel from the Edgewood Trust to the Ravenbrook Trust and the near-simultaneous deed from Ravenbrook to Williams Bros. The language in those deeds contains nothing whatsoever burdening the property with the sand rights, right of way, bog houses, or tree-cutting rights purportedly benefiting the Peck parcel. As the grantors of that land, Edgewood Trust and then the Ravenbrook Trust had the statutory duty to include such language in the deed or “otherwise make known to the grantee the existence and nature of such prior encumbrance so far as he has knowledge thereof.” G.L. c. 184 § 21. This is particularly so where, as here, the grantors were retaining the “benefited” land. They had the power to keep that “benefit” by including its burden in their deed to Williams Bros. if the sand and other rights were important to them. They did not do so. Nor did they even mention such rights to Williams Bros. at any time in the transaction. In the face of their statutory duty, their failure to include that language in their deed “or otherwise make [it] known” to Williams Bros. is indicative of their intent not to burden that property. See Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009) (“where the right of way must derive first from a presumed reservation of rights by the grantor over his remaining land, it may be more difficult to imply an easement for the grantor’s benefit than an easement by grant for the grantee’s benefit.”) (internal quotations and citations omitted).

This conclusion is further underscored by the nature of the “burden” itself. As noted above, if applicable, it effectively would have prevented nearly all development of the Williams Bros. parcel. Surely something this important would explicitly have appeared in the deed, and is inconsistent both with the significant consideration ($60,000) Ravenbrook charged and received for the land and Edgewood/Ravenbrook’s knowledge that Williams Bros. intended to develop that land into a residential subdivision.

Edgewood/Ravenbrook’s intent to convey the Barker land to Williams Bros. without the burden of sand rights is not undercut by its subsequent deed to Peck of a portion of the registered land with the appurtenant rights appearing on that deed. Having reviewed all the evidence, I find that the deed to Peck did not reflect any affirmative intention by Edgewood, but rather the common practice of simply copying the language of the prior deeds and certificates onto the new deed. In any event, intended or not, it could not confer the purported benefit because the “servient” parcel had already been conveyed without that burden. A grantor cannot convey something it does not have. See Bongaards v. Millen, 440 Mass. 10 , 15 (2003). Likewise, this is not a situation in which the easement rights can reasonably be implied. As noted above, it is “more difficult” to imply an easement benefiting the grantor since the grantor is in control of the language of the grant and has the statutory obligation explicitly to disclose encumbrances he knows about, especially the ones he himself seeks to retain for his own benefit. Moreover, there was no persuasive evidence that sand and other rights to the Williams Bros. land were necessary or vital to the continuation of cranberry growing on the Peck parcel. Sand can come from elsewhere and, as noted above, is often not even wanted or needed for bog maintenance.

This leaves the question of damages. It is undisputed that the Pecks cut down 1.6 acres of trees and dug two large sand pits on Williams Bros. land. Focusing first on the tree cutting, the law recognizes three potential measures of damage: (1) the cost of restoration, (2) diminution in market value of the property as a result of the cutting, and (3) the value of the timber wrongfully cut. Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 304 (2008). Here, the only evidence offered was the value of the timber cut—$3,168—calculated by identifying the type of tree cut (white pine, with two black oaks), the number of trees cut (149), the number of board feet in those trees (determined by examining the stump size and, from that, the height and breadth of the tree) (31,680 board feet), and the value of such a board foot ($100 per thousand). Neither that approach nor that number was seriously challenged at trial, nor was contrary evidence offered. I find it persuasive and, on that basis, award Williams Bros. $3,168 in damages, with interest at the statutory rate from the date suit was filed. G.L. c. 231 § 6B. I decline to award treble damages because the Pecks, based on the appurtenant rights language on their certificate of title, “had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of.” G.L. c. 242 § 7. I do not award damage for the sand pits because no evidence quantifying the damage was either offered or admitted. See Lowrie v. Castle, 225 Mass. 37 , 51-52 (1916).

Conclusion

For the foregoing reasons, I find and rule that the Peck parcel’s sand and other appurtenant rights to the Williams Bros. parcel terminated by merger, were not reinstated after severance of the parcels, no longer exist, and are thus stricken from the Peck certificate of title. Damages are awarded to Williams Bros. from the Pecks and Curt Dow (the person who cut down the trees at the Pecks’ direction), jointly and severally, with interest at the statutory rate from the date of commencement of this action. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 11 April 2011