CALVIN C. OVERLOCK and DORIS T. OVERLOCK v. STEVEN LEARY, DONNA LEARY, PAUL BOUCHER, VALERIE MURRAY and BYRON HOLMES, as they are Members of the Town of Berkley Planning Board; COMPONENT PROPERTIES, INC.; D. CHRISTOPHER CROSS, and SUSAN BARKER CROSS, as TRUSTEES OF THE KIMBECK REALTY TRUST

The Plaintiffs, Calvin and Doris Overlock (“Overlock”), own property located at 37 Dillingham Avenue, Berkley, Massachusetts (‘locus”). Overlook filed a two count complaint in Bristol Superior Court on May 1, 2009 naming as Defendants Town of Berkley Planning Board (“Board”), Component Properties, Inc., and Christopher Cross and Susan Cross as Trustees of the Kimbeck Realty Trust (collectively “Developers”). The first count is an appeal of a determination by the Planning Board, pursuant to G. L. c. 41, § 81BB, where Overlock is arguing that the approval of the Developers’ subdivision plan exceeded the Board’s authority. In the second count, Overlook seeks a declaratory judgment from the court as to “the rights, duty, and status of each of the parties in and to” the disputed portion of Dillingham Avenue.

In an order dated October 1, 2009, Justice Merita A. Hopkins of the Bristol Superior Court granted an assented- to motion to have the case transferred to the Land Court. On November 30, 2009, counsel for the Developers filed a request with Land Court Chief Justice, Karyn F. Scheier, to have the case transferred to the Land Court Permit Session. See G. L. c. 185, § 3A. In a letter dated March 30, 2010, Justice Scheier determined that the case did not meet the requirements of G. L. c. 185, § 3A and would not be assigned to the permit session. Overlook then filed a motion to have the case re-transferred to Bristol Superior Court. This motion was denied by this court on July 6, 2010.

A view of the locus was taken by the court on October 14, 2010, with attorneys for both parties and some of the parties themselves present. Following the view, a one day trial was held in Boston on October 21, 2010. The court heard testimony from Robert G. Funke, Esquire (“Attorney Funke”), Calvin C. Overlock, and Edward A. Rainen, Esquire (“Attorney Rainen”). There were seventy-four exhibits entered into evidence, some of which contained several sub-parts. The testimony was reported. Following the filing of the trial transcript, the parties filed their post-trial briefs with the court on February 11, 2011.

FINDINGS OF FACT

On all the testimony, exhibits and other evidence properly introduced at trial or otherwise, and with the inferences reasonably drawn therefrom, I find as follows:

1. Overlock owns property on both sides of Dillingham Avenue. See Statement of Agreed Facts, ¶ 3 (“SOF”). Currently, Overlock owns Lots 294, 295, and 296 as identified in the plan entered into evidence as Trial Exhibit 68. [Note 1] Overlock also owns Parcels A and B as identified in Trial Exhibit 68, by virtue of an adverse possession judgment against Defendant, Component Properties, Inc., entered by a Judge in Bristol Superior Court. See Trial Exhibit 53.

2. Dillingham Avenue first appears on a plan of “Dillingham Shores” dated May 1953, depicting approximately twenty-nine lots. See TR., 121-22; Trial Exhibit 55. At the time John Q. Dillingham (“Dillingham”) had the plan prepared in 1953, he, or his family, owned the fifty-five acres parcel of land that now comprises substantially all of the Developers’ proposed subdivision. See Trial Exhibit 69.

3. Dillingham continued to develop the area shown in the 1953 plan, but his sale of the lots identified in that plan was sporadic. See Trial Exhibits 1, 2, 3, 6, 10, 55, 58, 59, 60, and 65. Dillingham eventually extended Dillingham Avenue by selling additional lots north of the Dillingham Shores plan. See Trial Exhibits 1-3, 6, 10, 69. The purchased lots which extended Dillingham Avenue are identified as Lots 292-296 in a plan entered into evidence as Trial Exhibit 68 (“Exhibit 68").

4. Lot 294 as shown on Exhibit 68 was the first lot conveyed by Dillingham which was not part of the Dillingham Shores development. See Trial Exhibit 1. Lot 294 was conveyed to Milton and Rita Harrington by deed, dated January 3, 1956 and duly recorded in the Bristol County (North District) Registry of Deeds. Id. The deed states that “[t]here is also granted herewith a right of way for ingress and egress over said proposed Dillingham Avenue and such other ways as the grantor may later designate.” Id. This language gave the Harringtons “the right to use Dillingham Avenue to access” their property. TR., 139. Lot 294 was subsequently transferred from Rita Harrington to Overlook on May 27, 1994. See Trial Exhibit 27. The deed transferring ownership to Overlook also transferred “whatever right of way grantor has ability to convey for ingress and egress over said Dillingham Avenue and such other ways as may have been designated for the benefit of grantor by John Q. Dillingham.” See Trial Exhibit 27.

5. Lot 292 as shown on Exhibit 68 was the second lot conveyed by Dillingham which was not part of the Dillingham Shores development. See Trial Exhibit 2. On November 6, 1956, Lot 292 was conveyed to Francis and Catherine McKeon. Id. The deed expressly granted to the McKeons, “a right of way to and form the granted premises over Dillingham Avenue as shown on such Plan of record.” Id.; TR., 141. The deed also granted to the McKeons an easement to install telephone poles, and the right to install gas and drainage pipes under Dillingham Avenue. See Trial Exhibit 2.

6. On January 27, 1960, Dillingham conveyed Lot 296 on exhibit 68 to Francis and Catherine McKeon. See Trial Exhibit 3. The deed states that lot 296 is bounded “in the easterly line of Dillingham Avenue.” Id. The deed also transferred “a right of way by foot, vehicle, or other means of transportation to and from the granted premises and to be used for the same purposes for which public ways are ordinarily used, over Dillingham Avenue.” Id. In addition, the McKeons were also granted an easement to install telephone poles, and the right to install gas and drainage pipes under Dillingham Avenue. Id.

7. On October 18, 1961, Dillingham conveyed Lot 293 on Exhibit 68 to Robert and Helen Quigley. See Trial Exhibit 6. The deed both describes the property as bordered by Dillingham Avenue, and conveys “the right to travel along Dillingham Avenue . . . .” Id. The deed also sets forth a street maintenance obligation, for Dillingham Avenue, upon the Quigleys. Id. “[T]heir proportionate share being determined by the relationship of their frontage to the entire frontage of [Dillingham Avenue].” Id.

8. Dillingham conveyed Lot 295 on Exhibit 68 to James and Jean Lawrence on October 11, 1963. See Trial Exhibit 10. The Lawrences’ deed did not contain an express right of access over Dillingham Avenue for the benefit of the grantee, nor did Dillingham retain rights in Dillingham Avenue. Id. The deed, however, stated the Lot 296 was bordered “by the westerly line of Dillingham Avenue (emphasis added).” Id.; TR., 128.

9. A plan was recorded on July 30, 1955, which corresponds to the deed conveying Lot 294 to the Harringtons on January 3, 1956. See Trial Exhibits 1, 58. A second plan was recorded on August 1, 1956, which corresponds to the deed conveying Lot 292 to the McKeons on November 6, 1956. See Trial Exhibits 2, 59. A third plan was recorded on January 27, 1960, which corresponds to the deed conveying Lot 296 to the McKeons on that same day. See Trial Exhibits 3, 60. Dillingham’s plan for the Dillingham Shore development was recorded on July 27, 1953. See Trial Exhibit 55. Overlook filed his own plan which depicted Dillingham Avenue as open ended on November 4, 1975. See Trial Exhibit 65. Overlook had a second plan done for the adverse possession action which, again, depicted Dillingham Avenue as open ended. See Trial Exhibit 68. Trial Exhibit 64, was filed on September 12, 1964, and Trial Exhibit 67, was filed on November 13, 1998 with the Bristol County Registry of Deeds for the Northern District. All of these plans depict Dillingham Avenue as open ended.

10. There were three aerial photographs presented as evidence at the trial, dated 1952, 1959 and 1962, all taken during the time period of Dillingham’s conveyance of Lots 292-296. See Trial Exhibits 71-73A. See also Trial Exhibits 1-3, 6, 10. The 1952 aerial photograph shows Dillingham Avenue extending past Overlock’s property, and into the property now owned by the developers. See Trial Exhibit 71. As does the 1959 aerial photograph. See Trial Exhibit 72. In 1962, a year prior to the sale of Lot 294, aerial photographs showed Dillingham Avenue extending past Lot 294. See Trial Exhibits 73, 73A. Finally, a 1985 aerial photograph again showed Dillingham Avenue extending past Overlock’s property, and into property now owned by the Developers. See Trial Exhibit 74.

11. The Developers submitted an application for a definitive subdivision plan to the Board. See SOF, ¶ 4; Trial Exhibit 69. The proposed twenty-nine lot subdivision, known as Pierce’s Point Estates, contains approximately eighty-four acres of land, and is located easterly of Dillingham Avenue in Berkley, Massachusetts. See SOF, ¶¶ 5, 9; Trial Exhibit 69. Overlock’s property abuts the subdivision. See SOF, ¶¶ 6-7. The property which comprises the proposed subdivision is owned by the Developers.

12. The Board approved the Developers’ subdivision plan at a meeting on March 19, 2009, subject to twenty-five enumerated conditions. See Trial Exhibit 70. The Board memorialized its decision on April 9, 2009, and filed the decision with the Berkley Town Clerk on April 15, 2009. Id.

13.The Board approved the subdivision based, in part, upon a determination that the Developers had a right to pass, re-pass, and/or improve the portions of Dillingham Avenue shown on the subdivision plan. See SOF, ¶ 10; Trial Exhibit 70. Specifically, paragraphs 8(c), 10, 14, 17, 18, of the Board’s decision make reference to the Board’s imposed conditions that affect Dillingham Avenue. See Trial Exhibit 70.

DISCUSSION

The duties of the Land Court in hearing and deciding an appeal under G. L. c. 41, § 81BB “is limited upon a de novo consideration to a determination [of] whether the board’s decision exceeded its authority . . . [t]he burden of proof is on the persons objecting to convince the trier of fact that the board exceeded its authority and acted improperly (emphasis added).” Strand v. Planning Bd. of Sudbury, 7 Mass. App. Ct. 935 , 936 (1979).

Overlock believes that he owns a portion of Dillingham Avenue lying adjacent to his property, and that the Developers do not have the right to pass and re-pass, or improve that portion of Dillingham Avenue. See Plaintiffs’ First Amended Complaint, ¶¶ 19-20. The Board’s approval of the Developers’ subdivision plan was conditioned on their right to use and improve Dillingham Avenue. See id. at ¶¶ 21-22. Overlook argues that the Board’s approval, therefore, exceeded its authority because the Developers did not have a right to use or improve the portion of Dillingham Avenue which abuts Overlook’s property. See id. at ¶ 23.

The Developers’ position is that by virtue of Dillingham’s conveyance of lots 292 through 296, as identified in Exhibit 68, they hold an implied easement over Dillingham Avenue. See Defendants’ Post-Trial Brief, 2. Since the Developers contend they hold an implied easement, they believe that they also have the right to use and improve Dillingham Avenue, and, therefore, that the Board’s decision did not exceed its authority. Id.

I. Easement by Implication.

The party claiming an easement by implication bears the burden of proving its existence. Boudreau v. Coleman, 20 Mass. App. Ct. 621 , 633 (1991). “Easements by implication are generally created when land under a single ownership is severed and the easement is reasonably necessary for the enjoyment of one of the parcels.” Silverlieb v. Hebshie, 33 Mass. App. Ct. 911 , 912 (1992). To prove that the parties intended to create an easement, there must also have been a prior use that is consistent with the alleged easement. See Mount Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105-06 (1933). See e.g., id.; Cummings v. Franco, 335 Mass. 639 , 642-44 (1957) (reasonably necessary easements have included easements for lights and the maintenance of electric fixtures, as well as the supply of water and electricity).

“The origin of an implied easement ‘whether by grant or by reservation . . . must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in 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.’” Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). What is required is a presumed objective intent of the grantor and grantee based upon the circumstances of the conveyance. Flax v. Smith, 20 Mass. App. Ct. 149 , 153 (1985). In determining the intent , the entire situation at the time the deeds were conveyed must be considered. Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (1920).

A. Intention of the Parties and Prior Use.

Dillingham’s development of his property northward, and his continuous extension of Dillingham Avenue to accommodate the sales of Lots 292 through 296, is evidence of Dillingham’s intent to allow future owners of these lots the use of Dillingham Avenue. Dillingham began to develop a portion of his land, known as Dillingham Shores, via a professionally drafted plan in 1953. See Findings of Fact ¶ 2. Dillingham’s initial development project subject to a professional plan, however, does not require that Dillingham continue to develop his land in that same fashion. Attorney Rainen testified at trial that “post-World War II, but before the advent of planning boards . . . it was not uncommon for people to develop their land incrementally. As someone wanted to buy a lot, a lot was sold and the street was extended (emphasis added).” TR., 123. The deeds for Lots 292 through 294, and Lot 296, support the inference that Dillingham was developing his property in that manner. [Note 2] See Findings of Fact ¶¶ 4-7. Each of those deeds conveyed to the owner a right to use Dillingham Avenue to access their property, which implies that Dillingham Avenue would have to be extended to reach the newly sold lots. See id.

Overlock’s expert witness, Attorney Funke, testified that if Dillingham intended “further wholesale development of his remaining land, [he would] do it according to a comprehensive plan like [Dillingham Shores, see Trial Exhibit 55] rather than an ad hoc plan of a few lots [at a time].” TR., 30. Attorney Funke went on to testify that if Dillingham “had in mind continuing to develop and extend Dillingham Avenue, he knew how to do it, and he didn’t do it.” TR., 31. Attorney Funke assumes that because Dillingham had in the past used a professional plan to develop Dillingham Shores, his choice not to use a professional plan when he sold Lots 292 through 296 definitely proves that Dillingham did not intend to continue to extend Dillingham Avenue to any further individual lot sales. The court does not agree with this assumption. Although Dillingham’s ad hoc development and lack of a professional plan for Lots 292 through 296 is a factor to be taken into consideration by the court, the inclusion of an express right to access Lots 292 through 294 and Lot 296 via Dillingham Avenue, speaks more heavily to Dillingham’s intention. With the exception of Lot 295, which will be discussed infra, each lot Dillingham sold north of Dillingham Shores contained a right of access to Dillingham Avenue, the inclusion of which this court believes shows Dillingham’s intention to continue to extend Dillingham Avenue.

The deed to Lot 295, which was conveyed to the Lawrences on October 11, 1963, did not contain an express easement for the Lawrences to access their property via Dillingham Avenue, as did the deeds to Lots 292 through 294 and Lot 296. See Findings of Fact ¶¶ 4-8. The Lawrences, however, had an easement by estoppel to access their property via Dillingham Avenue. “When a grantor conveys land bounded by 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) . . . embraces the entire length of the way.” Casella v. Sneirson, 325 Mass. 85 , 89 (1949) (citations omitted). The 1963 deed to Lot 295 states that the lot is “bounded . . . and located on the westerly side of Dillingham Avenue . . . ,” see Trial Exhibit 10, which makes clear that the Lawrences had a right to use Dillingham Avenue to access their property, Lot 295.

The subdivision control law was enacted in 1953, prior to Dillingham’s first sale of any lot north of Dillingham Shores. In accordance with the Subdivision Control Law, plans were drawn depicting the lots sold by Dillingham, as well as Dillingham Avenue. See Trial Exhibits 55, 58-60. There were, in total, nine plans entered into evidence which show Dillingham Avenue as being open ended. See Findings of Fact ¶ 9. In their post-trial brief, the Developers cite Duddy v. Mankewich, 75 Mass. App. Ct. 62 (2009), as a case with analogous factual circumstances to the present case, necessitating that this court find that there was an implied easement over Overlock’s property. In Duddy, the Appeals Court held that a certificate of title for registered land which referenced a plan filed with the Land Court, where the plan showed an open ended road, was sufficient evidence that the original grantor intended an easement across the buyer’s property. Duddy, 75 Mass. App. Ct. at 64-67. In addition, “[a] plan referred to in a deed becomes part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed (emphasis added).” Jackson v. Knott, 418 Mass. 704 , 711 (1994), citing Labounty, 352 Mass. at 344.

Overlock currently owns Lot 296 which was originally conveyed to the McKeons from Dillingham on January 27, 1960. See Trial Exhibit 3. In addition to granting the McKeons a right to use Dillingham Avenue to access their property, the deed refers to land as “premises particularly shown on a ‘Plan of land . . . .’” Id. That plan of land is the plan entered into evidence as Trial Exhibit 60, and was recorded with the Bristol County Registry of Deeds for the Northern District. [Note 3] See Findings of Fact ¶ 9. The deed for lot 294, which is also owned by Overlock, does not reference a plan, but Trial Exhibit 58 is a plan filed with the Registry that corresponds to that lot. Id. Exhibit 58 shows Dillingham Avenue as open ended. Id. The plans filed with the Registry further support the argument that Dillingham’s intent when developing the lots north of Dillingham Shores ad hoc, was to grant to the buyer of each new lot an easement to access their lot via Dillingham Avenue. Overlock should have been aware of Dillingham’s intent when he purchased Lot 296 because the deed to that lot specifically reference a plan depicting Dillingham Avenue as open ended. [Note 4] Further, a proper title search for Lot 294 would have revealed the plan identified as Exhibit 58, again depicting Dillingham Avenue as open ended. Overlock’s third lot, Lot 295, as discussed supra, has an easement by estoppel which would have allowed the Lawrences, and then Overlock, to access that lot via Dillingham Avenue. [Note 5]

Overlock acquired Parcel A, as identified in Exhibit 68, through an adverse possession judgment against Component Properties, Inc. (“Component”), one of the Developers in this action. See Trial Exhibit 53; Findings of Fact ¶ 1. Parcel A is situated north of Lot 296, which is currently owned by Overlock. See Trial Exhibit 68. The transfer of ownership from Component to Overlock, by virtue of the adverse possession judgement, does not affect the easement by implication over Parcel A.

B. Reasonably Necessary.

The prior use of Dillingham Avenue is consistent with the easement by implication alleged by the Developers, and Dillingham Avenue is also reasonably necessary to the Developers planned usage of their property. It is not required for a party seeking to establish an easement by implication to show that the easement is absolutely necessary, just reasonably necessary. Mount Holyoke Realty Corp., 284 Mass. at 105. See e.g., id. at 105-06; Cummings, 335 Mass. at 642-44 (reasonably necessary easements have included easements for lights and the maintenance of electric fixtures, as well as the supply of water and electricity). Presumably the Board conditioned its approval of the Developers plan on the use and improvement of Dillingham Avenue for safety concerns, i.e. ease of access to the northern- most lots of the development by emergency vehicles and personnel. Safety concerns certainly would make the use of Dillingham Avenue reasonably necessary. [Note 6] In addition, the deed transferring Lot 292 to the McKeons granted an easement to install telephone poles, and the right to install gas and drainage pipes under Dillingham Avenue, making access to that lot consistent with reasonably necessary uses enumerated in Cummings. See Trial Exhibit 2; Findings of Fact ¶ 5. The McKeons were also granted an easement to install telephone poles, and the right to install gas and drainage pipes under Dillingham Avenue, in the deed to Lot 296, further in accord with the uses described in Cummings. See Trial Exhibit 3; Findings of Fact ¶ 6. The evidence has established that use of Dillingham Avenue as shown in the Developers plan, as approved by the Board, is reasonably necessary for the use of the Developers property.

II. The Board’s Decision.

The deeds, Dillingham’s actions, and recorded plans all establish that Dillingham intended to created an easement over Lots 292 through 296 to access any lots he later sold out of his property north of those lots, property now owned by the Developers. The use of Dillingham Avenue to access the lots on that property now proposed in the Developers plan, is reasonably necessary for the use of those lots. Since there was an easement by implication over Lots 202 through 296, the Board did not exceed its authority when it condition its approval of the Developers’ plan on the use, maintenance and improvement of Dillingham Avenue. The Board, therefore, did not act improperly.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: May 13, 2011

Exhibit A

Exhibit B

Exhibit C