Plaintiff B&N Lands, LLC, filed its unverified complaint in 06 MISC 333455 on November 27, 2006, seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment as to ownership and/or easement rights of Plaintiff and Defendants James E. Unger and Robin L. Unger (the Ungers) in Frog Hollow Road located in Russell, Massachusetts, and equitable relief pursuant to G. L. c. 185, § 1(k). On the same day Plaintiff filed its unverified complaint in 06 MISC 333456 seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment as to ownership and/or easement rights of Plaintiff and Defendants John P. Chicoine and Jana S. Chicoine (the Chicoines) in Frog Hollow Road, and equitable relief pursuant to G.L. c. 185, § 1(k). The Ungers filed their Answer on December 18, 2006. The Chicoines filed their Answer on January 8, 2007. A case management conference in both cases was held on March 29, 2007. [Note 1] The Ungers filed a Motion for Summary Judgment on August 31, 2007, together with Affidavits of Jeffrey B. Loeb, Esq. and Holly F. Counihan (title examiner). The Chicoines filed a Motion for Summary Judgment on September 18, 2007, together with Affidavits of John Chicoine (Defendant) and Alan Seewald, Esq. (the Unger summary judgment motion and the Chicoine summary judgment motion together, Summary Judgment I) On November 1, 2007, Plaintiff filed its Opposition, together with Affidavits of Michael Pill, Esq. and James A. Smith (surveyor) (two). A hearing was held on both motions on December 7, 2007, at which time the two cases were consolidated. This court (Lombardi, J.) issued an Order Granting Partial Summary Judgment on June 30, 2008 (Decision 1), finding the Brueno Parcel (as hereinafter defined, containing both the property owned by the Ungers (the Unger Parcel) and the property owned by the Chicoines (the Chicoine Parcel)) abutted the former Boston & Albany Railroad bed (the Railroad Bed) as a linear monument; as a result, both the Ungers and the Chicoines, pursuant to G. L. c. 183, § 58 (the Derelict Fee Statute), hold the fee to the center line of the abutting Railroad Bed as it existed in 1923. The location of the Railroad Bed and Frog Hollow Road, and the issue of easements in Frog Hollow Road, were left as issues which needed disposition at trial.
On July 29, 2008, Plaintiff filed a Motion to Reconsider Order Granting Partial Summary Judgment, which was denied on February 12, 2009. On December 24, 2008, Plaintiff and the Ungers filed a Stipulation of Dismissal of 06 MISC 333455, and this court issued a Judgment of Dismissal on December 29, 2008. Plaintiff filed an Amended and Supplemented Complaint in 06 MISC 333456 on February 18, 2009, adding a declaratory judgment count relative to the extinguishment of any easement the Chicoines may have over Frog Hollow Road, which amendment was allowed on April 2, 2009. A pre-trial conference was held on June 17, 2009. At that conference, it was determined there were no material factual disputes, and this court converted the trial to a summary judgment hearing.
The Chicoines filed their Second Motion for Summary Judgment (Summary Judgment II) on March 1, 2010, together with supporting memorandum and Appendix containing Affidavits of John P. Chicoine and Alan Seewald, Esq. On April 14, 2010, Plaintiff filed its Cross-Motion for Summary Judgment, together with supporting memorandum and Affidavits of William B. Hull (Plaintiffs manager) and Michael Pill, Esq. The Chicoines filed their Reply Brief on May 7, 2010, together with Motion to Strike a portion of Plaintiffs memorandum. On May 13, 2010, Plaintiff filed its Reply Memo and Opposition to Motion to Strike. A hearing was held on all motions on May 17, 2010, and all motions were taken under advisement.
Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
I find the following material facts are not in dispute:
1. Facts 1-37 as found in Decision 1. [Note 2]
2. A plan titled Survey of Land Russell, Mass dated October 21, 1974 and prepared by Conlon Associates Inc. (the 1974 Plan) shows the Chicoine Parcel and the Unger Parcel as abutting the Old B.H. R.R. Right of Way, and the Dump Road as meandering within such Right of Way. The edge of pavement for Dump Road is shown on the western side of the right of way, the side closest to the Brueno Parcel. This is confirmed by the legal description in the first deed out of both parcels, which describes the easterly boundary line as on the west side of the old B.&A. Railroad bed at an iron pin by the second stone culvert (Unger Parcel) and on the west side of the old Railroad bed to the South side of the third stone culvert. (Chicoine Parcel).
Motion to Strike.
The Chicoines filed a Motion to Strike the portion of Plaintiffs memorandum dealing with an issue that was resolved by Decision 1 (the application of the Derelict Fee Statute to title to the Railroad Bed). I include a further discussion of the title issues in this decision solely for clarification. As a result, I shall not strike any portion of Plaintiffs brief, although I find the portions dealing with the title issues as not relevant to the issues in this Summary Judgment II decision.
The major issues in the motion for Summary Judgment II relate to the existence of an easement by estoppel over both the Railroad Bed and Frog Hollow Road for the Chicoines (including the location of Frog Hollow Road as it relates to the Railroad Bed). I shall address each of these issues in turn.
Fee Interest in the Railroad Bed.
Decision 1 found that the Brueno Parcel abutted the Railroad Bed and one of the successors in interest to Brueno, the Chicoines, held title to the one-half of the portion of the Railroad Bed that Parks owned in 1923, which abuts the Chicoine Parcel. In addressing the remaining issues, it may be helpful to first review the title issues relative to the Railroad Bed, particularly the boundaries of the Railroad Bed and the terms of the 1923 Deed.
Decision 1 found the Chicoine Parcel abutted the western boundary of the Railroad Bed and found the Railroad Bed to be a linear monument for purposes of interpreting the Derelict Fee Statute. [Note 3] For reference, see the description of the eastern boundary of the Brueno Parcel and the Chicoine Parcel in both the 1923 Deed and the 1936 Deed. [Note 4] See also Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 806 (2003) (We conclude that the railway in this case is a way or other similar linear monument within the meaning of [the Derelict Fee Statute]. It is, however, also helpful to review the easterly boundary of the Railroad Bed. The August 6, 1839 deed from Lyman Parks to the Western Rail Road Corporation deeded atract of land (the Railroad Property), which included the Railroad Bed, and the Railroad Property referenced the Westfield River as one of its boundaries. [Note 5] When the railroad ceased its operation on the western side of the Westfield River in 1882, the Boston and Albany Railroad, successor to the Western Rail Road Corporation, deeded the Railroad Property to Horace Parks by deed dated September 27, 1882. The northerly and easterly boundaries of that parcel were the Westfield River. [Note 6] Horace Parks then deeded the Railroad Property to Eugene Parks by deed dated December 1, 1882. As a result, Eugene Parks owned land between the Railroad Bed and the Westfield River, so that when he deeded out the Brueno Parcel in 1923, he retained land on the easterly side of the Railroad Bed. Otherwise, the 1923 Deed would have deeded out, pursuant to the Derelict Fee Statute, the entire fee of the Railroad Property to Brueno. [Note 7]
Plaintiffs title derives from the 1940 Deed from Eugene Parks to Parks Realty Company, Inc., which included Parcel 8, such parcel containing the Railroad Bed as it abutted the Brueno Parcel and any land easterly of the Railroad Bed, as discussed, supra. As a result, Plaintiff claims that it owns the fee to the Railroad Bed and Frog Hollow Road (which is contained within the boundaries of the Railroad Bed). The problem with Plaintiffs analysis is that Eugene Parks had already deeded out, in the 1923 Deed (through the Derelict Fee Statute), the fee to the westerly one-half of the Railroad Bed that abuts the Chicoine Parcel. Although Plaintiff argues that the Derelict Fee Statute was not enacted until 1972, such statute was retroactive except that as to such prior executed instruments this act shall not apply to the extent that any person or his predecessor in title has changed his position as a result of a decision of a court of competent jurisdiction. There is no evidence in the summary judgment records that Plaintiff or its predecessor has so changed its position. The Derelict Fee Statute states, as an exception, that it does not apply if the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. The 1923 Deed reserved a right, or easement, for the grantor (Eugne D. Parks), his heirs and assigns, to cross from his land on the west of the granted tract to the old Railroad bed on the east. It would appear that the grantor in the 1923 Deed, given the common law presumption at that time (to pass title to the center of the way as discussed in Decision 1), intended to retain some portion of the fee title to the Railroad Bed if he reserved the right to cross over to it in order to reach lands held to the east.
In order for the grantor to reserve a fee interest in the linear monument, the exception must be expressly contained in the deed itself. G.L. c. 183 § 58 (Every instrument passing title to real estate...); see also Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 247 (1992) (holding instrument passing title necessarily must be a deed). The intention of the grantor to reserve an interest in a way must be clear from the instrument of conveyance because no extrinsic evidence may be used to prove the grantors intent to retain the fee to the way. See Rowley, 438 Mass. at 804. Additionally, a deed is read most strongly against the grantor. See Bernard v. Nantucket Boys Club, Inc., 391 Mass. 823 , 827 (1984). The 1923 Deed reserves an easement to the grantor, but the issue is whether the clause manifests the intention of the grantor to expressly retain the fee interest in the entire Railroad Bed. The 1923 Deed reserved the right, to cross from his land on the west of the granted tract to the old Railroad bed on the east. This language does not clearly and expressly demonstrate the grantors intention to reserve the entire fee interest in the Railroad Bed, but merely reserves the easement right to cross over the deeded land in order to reach the Railroad Bed. An easement running over the land to the west of the Railroad Bed allowed Parks, then owner and grantor, to access the property he owned on the eastern side of the Railroad Bed. Reading the deed most strongly against the grantor, I find the grantor (Eugene Parks) did not expressly reserve the entire fee interest in the Railroad Bed, but reserved a right of way to cross the Brueno Parcel to reach the Railroad Bed.
Easement by estoppel.
A. The Railroad Bed.
The Chicoines argue they have an easement by estoppel in the Railroad Bed. 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 Bd. 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).
As discussed, supra, in the case at bar, the 1923 Deed from Eugene Parks to William Brueno granted title to approximately five acres bounding on the north by the northerly boundary of the Unger Parcel, on the west by other land of Eugene Parks, on the south by land of others, and on the east by the west side of the old B.& A. Railroad bed. [Note 8] As a result, the Brueno Parcel had potential access from River Street (a public way since 1914), at the location where River Street touched the parcel. [Note 9] Otherwise the Brueno Parcel had no deeded access rights. However, the 1923 Deed stated that it bounded on the Railroad Bed, which had not been used by the railroad since 1882. By including the language which specifically bounds the Brueno Parcel by the Railroad Bed, the deed itself recognizes the linear monument. Thus, the requirements for an easement by estoppel appear to be met.
The 1936 Deed (the first conveyance out of the Chicoine Parcel from the remainder of the Brueno Parcel) describes the Chicoine Parcel as bounding on the westerly side of the old Boston & Albany Railroad bed at an iron pin by the second stone culvert; thence running southerly on said old road bed, about three hundred forty five (345) feet to an iron pin under a small out-cropping ledge . . . Similar to the Brueno Parcel, the Chicoine Parcel had no deeded access easement, but it did abut the Railroad Bed. [Note 10] The 1974 Plan was consistent with the 1923 Deed and the 1936 Deed in showing that the Chicoine Parcel abutted the Railroad Bed. The 1974 Plan also showed the River Street extension (a private way) as accessing the Chicoine Parcel, but this appears to be inconsistent with other deeds and plans, and case law does not provide help with access. [Note 11]
Since the legal description of the Chicoine Parcel indicates that such parcel abutted the Railroad Bed, it would appear the Chicoine Parcel has an easement by estoppel to use the Railroad Bed as access from Main Street. This is particularly true where no other access rights were granted in the 1936 Deed.
Plaintiff argues that Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 (1971) limits the scope of an easement by estoppel, particularly where there is no easement by necessity. See also Rahilly v. Addison, 350 Mass. 660 , 662-63 (1966) (holding easement other than an easement by necessity created only by clear intention of parties to deed. [Note 12] Relative to intent, 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 a 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 o the granted premises; or whether they were remote or in close proximity.
Plaintiff points out that the 1923 Deed legal description provided access to River Street, a public way, and argues that since the use of the Railroad Bed was not a necessity, the Chicoines must show the common grantors intent to create an easement in another access road as well. The Chicoines argue that an easement by estoppel is not an easement by necessity, and that other access is irrelevant. Moreover, they point out that, even if intent is required, the summary judgment record discloses that the Railroad Bed, as an access roadway, existed at the time of the 1923 Deed (as well as before and after), and cite deeds from Eugene Parks (July 31, 1917 and April 8, 1931) in which he granted an access right of way across the Railroad Bed. [Note 13] The Chicoines also contend that the 1936 Deed would otherwise landlock the Chicoine Parcel, since it had no rights to use River Street. [Note 14]
Through the previous deeds and plans it is clear Parks recognized the Railroad Bed as a way. The current condition and use of the Railroad Bed does not control the categorization of the Railroad Bed as a way or not. The condition of the way at the time the plan was recorded is what is controlling. [Note 15] The Railroad Bed was repeatedly recognized by Parks as a way when granting abutting property and because of this continual recognition in prior deeds of the Railroad Bed as a way, Parks successors in interest are estopped from now disavowing the existence of the way. While the Railroad Bed is not an easement by necessity, the existence of the way is clearly demonstrated in the deeds which recognize the way. As a result of the foregoing, I find the Chicoines have an easement by estoppel in the Railroad Bed.
B. Frog Hollow Road.
The next issue is whether the Chicoines have established an easement by estoppel in Frog Hollow Road. It is uncontested that Frog Hollow Road lies within the Railroad Bed. [Note 16] Irrespective of the confusion in the summary judgment records as to whether Frog Hollow Road abuts the Chicoine Parcel, the Chicoine Parcel abuts the Railroad Bed and the Chicoines have a fee interest to the center line of the Railroad Bed pursuant to the Derelict Fee Statute. It is also clear the Chicoines have an easement by estoppel in the Railroad Bed. The summary judgment records show the Railroad Bed was used as access over the years. The only remaining question is the location of Frog Hollow Road within the Railroad Bed. It appears the Chicoines have rights in Frog Hollow Road because the bounds of Frog Hollow Road closely follow the bounds of the Railroad Bed. [Note 17] As a result, I find that the Chicoines have an easement by estoppel in Frog Hollow Road. [Note 18]
As a result of the foregoing, I ALLOW Summary Judgment II and DENY Plaintiffs Cross Motion for Summary Judgment. Judgment to enter accordingly.
Alexander H. Sands, III
Dated: May 4, 2011
[Note 1] The Chicoines filed a Special Motion to Dismiss Pursuant to G. L. c. 231, § 59H on January 25, 2007. This motion was argued at the case management conference and denied on March 30, 2007.
[Note 2] For clarification of some of the facts, see the following:
In a deed dated September 27, 1882 (the 1882 Deed), the Boston & Albany Railroad Co. granted to Horace Parks land in Russell, Massachusetts to the west of the Westfield River.
In a deed dated January 30, 1923 (the 1923 Deed), Eugene Parks granted to William Brueno a parcel of land (the Brueno Parcel), with the southerly and easterly boundaries as follows: running thence easterly to the foot of the bank on the west side of the old B. & A. Railroad bed to an iron pipe; thence northerly on the west side of the old Railroad bed . . .
In a deed dated Dec. 14, 1936 (the 1936 Deed), Mary Ann Bruno (a.k.a. Meryen Brueno) granted a portion of the Brueno Parcel (the Chicoine Parcel) to Agna and Agnes Bessette, with the easterly boundary described as follows: on the westerly side of the old Boston and Albany Railroad bed...thence running southerly on said old road bed...
In a release of easement dated July 1, 2005 (the 2005 Release), the Chicoines released their right, title and interest in an easement over the lands of Raymond and Doris Platt and Roger and Linda Bush.
A plan titled Division of Property Russell, Massachusetts For: John & Jana Chicoine dated March 4, 2005 (the 2005 Plan) shows Parcel A as deeded to the Chicoines and abutting Frog Hollow Road.
[Note 3] G. L. c. 183, § 58 states as follows: Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monuments, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (I) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.
[Note 4] See footnote 2, supra.
[Note 5] A plan titled Plan of Land in Russell, Massachusetts Surveyed for B&N Lands, LLC dated February 21, 2007 (the February 2007 Plan), and prepared by Heritage Surveys, Inc. also indicates the easterly sideline of the 1839 layout of the Railroad Bed as abutting the Westfield River.
[Note 6] The summary judgment records disclose the railroad company received (in 1839) and deeded back (in 1882) land that abutted the Westfield River, and the easterly portion of this land slopes down to the Westfield River. The actual Railroad Bed appears to have been on the flat plateau above the Westfield River. As a result, the Railroad Bed does not cover the entire parcel of land which was deeded back to Eugene Parks in 1882 (i.e. the area sloping down from the plateau to the Westfield River) and Eugene Parks owned land on both sides of the Railroad Bed at that time.
[Note 7] This analysis is consistent with the reservation to Eugene Parks in the 1923 Deed for access from land westerly of the Brueno Parcel to the Railroad Property. Also, Eugene Parks granted a parcel of land to the east of the Railroad Bed and to the west of the Westfield River to Henry T. Maynard in a deed dated October 21, 1907. See fact 9, Decision 1.
[Note 8] The southerly boundary touched the northerly end of River Street, a public way.
[Note 9] The summary judgment records do not disclose whether the Brueno Parcel had practical access to River Street at that time.
[Note 10] Even though the Chicoine Parcel did not touch the public portion of River Street, and had no deeded rights to use River Street, the first deed to the Chicoine Parcel retained land to the north and south of the Chicoine Parcel and reserved to the grantor (Mary Ann Brueno) a right of way across said premises to her other land [the Unger Parcel], leaving the remaining Brueno Parcel with potential rights in River Street. When the Unger Parcel was deeded out for the first time in 1945, however, there was no deeded easement to use River Street.
[Note 11] See Emery v. Crowley, 371 Mass. 489 , 494 (1976), which stated that the Derelict Fee Statute does not apply to properties which do not abut a way (The statutory silence with regard to real estate at the end of the way signifies that such real estate does not abut the way in the traditional or statutory sense of the word.) Moreover, Emery also stated that no easement by estoppel would be applicable to such situation.
[Note 12] Alexander v. Crompton, 13 LCR 61 , 64-65 (2005) (holding easement by estoppel claimed through conveyance coupled with a plan only created by parties intent).
[Note 13] On July 31, 1917 Eugene Parks deeded a parcel of land west of the B & A Railroad to Tomassetti and Foffo in which a right of way, over the old rail road bed as now used, to the Main street in Russell Village. On March 17, 1931, Eugene Parks had deeded a parcel of land abutting the Unger Parcel on the north to the Town of Russell to be used as a town dump. On April 8, 1931 Eugene Parks deeded an access easement to the Town of Russell (for the dump parcel) in common with others over the Railroad Bed to Main Street to the south.
[Note 14] For purposes of an easement by estoppel, we must look to the facts in 1923. Plaintiff argues intervening facts to show frustration of purpose or extinguishment. Seventy years later, in the 1995 Easement dated November 30, 1995, Doris Platt (the owner of property abutting the Chicoine Parcel on the south) granted to the owners of the Chicoine Parcel (for the first time) apermanent easement over the driveway as it presently exists, which driveway runs from the end of River Street across my land to land of the grantee [owner of the Chicoine Parcel and the Unger Parcel] . . . for all purposes of ingress and egress by foot and vehicles from said River Street to said grantees land, and this easement shall run with the land. Then, on June 30, 2005, the Platts conveyed a 20,000 square foot parcel to the Chicoines (Parcel A) which abutted the Chicoine Parcel on the south and Frog Hollow Road (a/k/a Dump Road) on the east. On the same day, the Platts granted the Chicoines the Driveway Easement across their property to access Frog Hollow Road. By Release of Easement dated July 1, 2005, the Chicoines released all of their interest in the 1995 Easement. None of this appears relevant to the issue of easement by estoppel.
[Note 15] See Bates v. McCarthy, LCR 08 Misc 375684 (April 8, 2011) (holding conditions in plan control over present existing conditions).
[Note 16] There appears to be a dispute between the parties as to whether Frog Hollow Road and the Railroad Bed are coextensive. The summary judgment records contain plans that indicate that Frog Hollow Road does not abut the Railroad Bed on the westerly boundary, and plans that show otherwise. The 1974 Plan shows a road called Dump Road (formerly the Old Depot Road, now Frog Hollow Road) parallel to River Street within the boundaries of the Railroad Bed, but not abutting any of the Chicoine Parcel and only abutting a small portion of the Unger Parcel. The 2005 Plan shows Parcel A as abutting Frog Hollow Road. The February 2007 Plan shows Frog Hollow Road as meandering within the Railroad Bed, but not abutting the Chicoine Parcel.
[Note 17] The summary judgment record discloses that Frog Hollow Road, if not coincident with the Railroad Bed, occupies the westerly portion of the Railroad Bed, thereby allowing Chicoines use of the way.
[Note 18] Plaintiff argues that the easement described in the 1923 Deed to build a fence . . . so a cow can pass back and forth negated an easement by estoppel. The two are not mutually exclusive, and the fact that a fence could be built doesnt negate the fact that the Chicoines bordered and had an easement by estoppel over the Railroad Bed.