SHARON BATES, TRUSTEE OF THE RUTH STREET REALTY TRUST vs. ROBERT L. McCARTHY and ELSIE LEE MARVIN, TRUSTEES of BIG ROCK REALTY TRUST; ROBERT D. FERRINI; ELEANOR C. FERRINI; LEONARD W. JACKSON, TRUSTEE of JACKSON REALTY TRUST; GEORGE R. GRAVES; JOAN C. GRAVES; ELIZABETH R. FIELD, TRUSTEE of RADCLIFFE FIELD REALTY TRUST, POINT ASSOCIATES, INC. [Note 1]

Plaintiff Sharon Bates, Trustee of the Ruth Street Realty Trust, filed her unverified complaint on March 25, 2008, pursuant to G. L. c. 240, §§ 1-5, as a Petition to Try Title, and pursuant to G. L. c. 240, §§ 6-10, as a Petition to Remove Cloud on Title, seeking to determine rights in a street known as Seabreeze Avenue (formerly known as the private portion of Nelson Avenue) (the “ROW”), within the development commonly referred to as Wilbur’s Point in Fairhaven, Massachusetts. [Note 2] All Defendants filed their joint Answer and Counterclaim, claiming an easement by estoppel in the ROW and seeking an order requiring Plaintiff to remove all structures located within the ROW, on April 29, 2008. [Note 3] Plaintiff filed her Answer to Counterclaim on May 1, 2008. [Note 4] A case management conference was held on July 17, 2008.

Defendants filed their Motion for Summary Judgment on July 16, 2009, together with supporting memorandum, Appendix of Exhibits, and Affidavits of Elsie Lee Marvin and Graves. Because it appeared that there were disputed facts, a pre-trial conference was held on December 2, 2009, at which time the parties discussed filing summary judgment on the easement by estoppel issue. Defendants filed their revised Motion for Summary Judgment on March 1, 2010, together with supporting memorandum. Plaintiff filed her Opposition on April 15, 2010, together with supporting memorandum, Appendix of Exhibits and Affidavit of Kenneth R. Ferreira, R.L.S.P.E. Defendants filed their Reply on June 2, 2010, together with Second Affidavit of Elsie Lee Marvin. A hearing was held on the summary judgment motion on August 23, 2010, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Sharon Bates and her husband Robert A. Bates (the “Bates”), purchased Lots 20, 21, 45, 47 and 51, known as 4 Ruth Street (“Plaintiff Property”), as shown on “Plan of Wilbur Point Development Fairhaven, Massachusetts” dated April 1939 (the “1939 Plan”), and recorded with the Bristol County South District Registry of Deeds at Plan Book 35, Page 19, by deed dated July 17, 2001. [Note 5] By deed dated July 26, 2001, the Bates sold Plaintiff Property to Plaintiff Sharon Bates, Trustee of the Ruth Street Realty Trust. [Note 6]

2. Elsie Lee Marvin (“Marvin”) and Robert L. McCarthy (“McCarthy”) (Marvin’s brother, now deceased) purchased Lots 46, 49 and 50 as shown on the 1939 Plan by deed dated June 17, 1965. Marvin and McCarthy purchased Lot 48 as shown on the 1939 Plan by deed dated June 7, 1968. All four lots were deeded to Marvin and McCarthy, Trustees of the Big Rock Realty Trust (“Big Rock”), by deed dated August 12, 1988. These deeds referenced both the ROW and the 1939 Plan.

3. Defendant Elizabeth R. Field, Trustee of the Radcliffe Field Realty Trust, purchased property known as 4 Seabreeze Avenue, shown as Lot 43 on the 1939 Plan, by deed dated May 26, 2000. This deed referenced both the ROW and the 1939 Plan.

4. Defendants George R. Graves (“Graves”) and Joan C. Graves (“Joan”) purchased Lot 36 as shown on the 1939 Plan by deed dated June 1, 1954. The Graves purchased Lot 37 as shown on the 1939 Plan by deed dated September 5, 1973. Lots 36 and 37 are known as 9 Seabreeze Avenue. Both deeds referenced the 1939 Plan, and the deed to Lot 36 referenced the ROW.

5. Defendants Robert D. Ferrini and Eleanor C. Ferrini (the “Ferrinis”) purchased property known as 6 Seabreeze Avenue, and shown as Lots 35 and 39 on the 1939 Plan, by deed dated December 24, 1981. This deed referenced both the ROW and the 1939 Plan.

6. Leonard W. Jackson and Jeanne B. Jackson (the “Jacksons”) purchased Lot 40 as shown on the 1939 Plan by deed dated March 1, 1963. The Jacksons purchased Lots 17, 41 and 44 as shown on the 1939 Plan by deed dated September 24, 1963. The Jacksons purchased Lot 16 as shown on the 1939 Plan by deed dated August 10, 1965. [Note 7] Leonard W. Jackson sold all five lots, known as 5 and 7 Seabreeze Avenue, to Defendant Leonard W. Jackson, Trustee of the Jackson Realty Trust, by deed dated September 23, 2005 (Jeanne B. Jackson having died on June 21, 2005). All deeds except the deed to Lot 16 reference both the ROW and the 1939 Plan. [Note 8]

7. Defendant Point Associates, Inc. (“PAI”) purchased Lots 18 and 19 as shown on the 1939 Plan, known as Association Beach (a private beach for its membership), by deed dated March 5, 1969. This deed references both the ROW and the 1939 Plan.

8. As shown on the 1939 Plan, the ROW meanders westerly from Wilbur Avenue (now Sconticut Road) then curves and traverses northerly to its intersection with Ruth Street. Today the ROW is predominantly a dirt road. The ROW is improved with gravel from its easterly border at Wilbur Avenue to approximately the westerly boundary of Lots 39 and 40. The rest of the ROW is a ten to fifteen feet wide dirt footpath winding its way through brush to its intersection with Ruth Street. The ROW has existed, and has been used, as a footpath for over eighty years.

9. There are two beaches in Wilbur’s Point: Association Beach (a private beach) that comprises Lots 18 and 19 as shown on the 1939 Plan, which has no vehicular access; and West Beach (a public beach) located off the end of Ruth Street by means of a twenty foot long way. [Note 9] West Beach, similarly, has no vehicular access.

10. Marvin’s family began renting cottages in Wilbur’s Point in 1930, and later purchased property there in 1938. Marvin has used the ROW to access Association Beach and the twenty foot way to West Beach by foot as a child (she was born in 1927). Marvin indicated that most of the ROW was a “ten-to-fifteen-wide footpath from the 1930's through the present.” Marvin also indicated that during the 1930s, 1940s, and 1950s the ROW was a wide-open way originally maintained by the common grantor, but that the ROW has always been open for passage to and from Association Beach and the twenty foot way to West Beach.

11. Graves and Joan first purchased property in Wilbur’s Point in 1954. When Graves was a child, he annually visited his grandparents, who purchased Lot 36 (as shown on the 1939 Plan) in 1943. Graves has used the ROW to access Association Beach and the twenty foot way to West Beach by foot since 1943. Graves indicated that “most of [the ROW] has existed as a ten-to-fifteen-wide footpath from the time that I started visiting my grandparents in the 1940's up until the present.”

12. An aerial plan dated 1969 (the “1969 Aerial Plan”), relied on by both parties, shows a footpath in the present location of the ROW for much of the entire length of the ROW.

13. In 2005, Plaintiff installed a horseshoe pit, a basketball court, and a white picket fence on Plaintiff Property. These structures and improvements are shown on a plan titled “Existing Conditions Plan of the Subdivision Known as ‘Wilbur Point Development’ Fairhaven, Massachusetts Plan Book 35, Page 19”, dated January 14, 2010 and prepared by Kenneth R. Ferreira Engineering, Inc. (the “2010 Plan”). The 2010 Plan shows the horse shoe pit on the easterly side of the ROW, adjacent to Lot 51; the fence runs parallel to the northern boundary of Lot 51, and traverses westerly along almost the entire width of the ROW; and the basketball court appears to be entirely on Lot 51. [Note 10]

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Defendants claim an easement by estoppel in the ROW. [Note 11] There are two forms of easement by estoppel: one based on a recorded plan, citing Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (where the court stated, “Where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan”), Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 477 (1989); the other based on a bounding on a street or way, citing Casella v. Sneierson, 325 Mass. 85 , 89 (1949) (where the court stated, “When a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only co-extensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed”). An easement by estoppel “is not necessarily confined to the purposes for which the dominant estate was used at the time of the grant but is a right of way for every reasonable use to which the dominant estate may be devoted.” Rajewski v. MacBean, 273 Mass. 1 , 6 (1930). “An easement by estoppel in favor of a grantee of land shown on a recorded plan would extend to all ways shown on the plan which the grantee might reasonably have expected he would have the right to use.” Patel, 27 Mass. App. Ct. at 482.

Defendants claim a right to use the ROW, for pedestrian use, to access Association Beach, the twenty foot way leading to West Beach, and Ruth Street, the public portion of Nelson Avenue and Wilbur Avenue. [Note 12] Defendants claim an easement by estoppel along the ROW from the intersection of the ROW and Wilbur Avenue, as shown on the 1939 Plan, up to the intersection of the ROW with Ruth Street and the public portion of Nelson Avenue. In support of their contention, Defendants argue each deed into Defendants referenced both the ROW and the 1939 Plan, the ROW has been in use even before the 1939 Plan was recorded, and the common grantor intended that the abutting lot owners have rights in the ROW.

Plaintiff contends that the mere reference to the ROW and the 1939 Plan depicting the ROW does not, as a matter of law, create an easement by estoppel. Plaintiff argues that the common grantor did not intend to create an easement in the ROW. As evidence, Plaintiff points out that there was no express grant of easement rights in the ROW, the ROW was never laid out or constructed, and Defendants have other means of access to Association Beach, West Beach, and Ruth Street, the public portion of Nelson Avenue, and Wilbur Avenue.

When property abutting a way is conveyed according to a recorded plan on which the way is shown, the grantor and those claiming under him are estopped from denying the existence of the way for the entire distance as show on the plan. See Patel, 27 Mass. App. Ct. at 482. As discussed, supra, each Defendant owns at least one lot abutting the ROW. Each deed held by Defendants references the 1939 Plan and each deed held by Defendants states that at least one of their lots is bounded by the ROW. The record indicates that the ROW existed and was used even before the 1939 Plan was recorded by the common grantor. Marvin’s affidavit states, “[m]ost of [the ROW] has existed as a ten-to-fifteen-wide footpath from the 1930's through the present. I have continually used [the ROW] to walk to both beaches for nearly 80 years”. [Note 13] Marvin’s unimpeached affidavit testimony indicates both that the ROW existed in the 1930s and that the ROW has been consistently used to access both West Beach (by means of the twenty foot way) and Association Beach for over eighty years.

In her argument, Plaintiff relies on Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 727 (1971), which limits the scope of an easement by estoppel. Kassuba states:

The mere reference in a deed to a lot number and a bounding street, as shown on a recorded plan, does not as matter of law give the grantee an easement in all the ways shown thereon . . . In determining the intent, the entire situation at the time the deeds were given must be considered. For example, whether the ways in question merely existed on paper, or were then constructed on the ground; whether they were then actually used as appurtenant to the granted premises; or whether they were remote or in close proximity.

Plaintiff contends, consistent with Kassuba, that the common grantor did not intend to create easement rights in the ROW because the ROW was never constructed and there are other means of access to both West Beach and Association Beach, i.e. that because no necessity existed, no easement can exist.

Before attempting to reconcile the case at bar with Kassuba, it should be noted that the lack of an express grant of easement rights in the ROW by the common grantor is indicative of nothing. If there were always an express grant of easement rights, there would never be a need for an implied easement. Since the deeds of the common grantor included no such grant of easement rights, however, Defendants argue that an easement by estoppel exists. There is no case law indicating that an easement by estoppel must be created in conjunction with an express grant of an easement.

Turning to Kassuba, the facts in the case at bar are dissimilar from those in Kassuba. In Kassuba, the Court of Appeals held that an easement by estoppel did not exist, and that court found that the “ways” were never built, did not lead to a public way, and were not plotted with certainty. Id. at 726-727. In reliance on Kassuba, Plaintiff argues that the footpaths on the ROW have been in varying locations and that the ROW (and footpaths thereon) was neither marked nor constructed. This assertion, which is not true, is not relevant. [Note 14] The case law is clear that if an easement by estoppel exists, Defendants have the right to use the entire ROW, as indicated on the 1939 Plan.

Plaintiff’s reliance on the 2010 Plan, which depicts the ROW winding through heavy brush, represents the ROW as it exists today, not in 1939 when the 1939 Plan was recorded. The uncontested Affidavits of Marvin and Graves, however, indicate that in the 1930s and the 1940s, the ROW was not blocked by the heavy vegetation, as shown on the 2010 Plan, and that the ROW has been the area used for access to the beaches, other lots, and the public roads in Wilbur’s Point since the 1930s and 1940s. [Note 15] Further, the 1969 Aerial Plan indicates that a footpath along the ROW has been carved out since at least 1969. A comparison of the 1969 Plan, the 2010 Plan, and various other photographic exhibits in evidence, together with the Affidavits of Marvin and Graves, indicate that the footpaths on the ROW exists today in substantially the same location as they existed dating back to the 1930s and 1940s. Finally, unlike in Kassuba, the ROW leads to three public ways: Nelson Avenue, Ruth Street, and Wilbur Avenue. [Note 16] These facts indicate both that the common grantor intended to convey rights in the ROW and that such rights have been exercised for many years.

Lastly, Plaintiff argues under Kassuba that Defendants have other means of access to the beaches and to Nelson Avenue, Ruth Street, and Wilbur Avenue, and as a result the common grantor did not intend to grant rights in the ROW to access these public roads. Plaintiff, however, errs as a matter of law. Defendants do not claim an easement by necessity, rather they claim an easement by estoppel. Because an easement by estoppel is not a way created by necessity, the easement holder’s rights “exist, even if there be other ways, either public or private leading to the land.” New England Structural Co. v. Everett Distilling Co., 189 Mass. 145 , 152 (1905). See also Emery v. Crowley, 371 Mass. 489 , 495 (1976) (lack of necessity does not affect the existence of an easement). It is true that Defendants might have other access routes to the beaches and the public roads, but the fact that these other access routes exist is not persuasive evidence that the common grantor of Wilbur’s Point did not intend to grant rights in the ROW. Considering the reference to the ROW in each Defendants’ deed, the depiction of the ROW on the 1939 Plan, the use of the ROW for more than eighty years, and the lack of evidence that the common grantor did not intend to grant rights in the ROW, I find that Defendants have an easement by estoppel in the ROW. [Note 17] As a result, I ALLOW Defendants’ Motion for Summary Judgment.

Based on the foregoing, I order that Plaintiff shall remove all structures and improvements on Plaintiff Property that interfere with Defendants’ easement rights in the ROW. Specifically, Plaintiff shall remove the horseshoe pit and the portion of the fence north of the ROW that blocks access from the ROW to Ruth Street. Plaintiff shall not erect any structures, make any improvements, or otherwise treat the ROW as if it were her own yard, unencumbered by an easement. Plaintiff shall take all steps necessary to ensure that she does not block the pedestrian path located along the portion of the ROW abutting Lots 20, 21, and 51 as shown on the 1939 Plan. [Note 18]

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: April 8, 2011