HARVEY GORDON and KAREN GORDON v. JEFFREY M. LIBER and JANE M. LIBER

This action was commenced by Harvey Gordon and Karen Gordon (Plaintiffs”) on December 27, 2007 seeking to determine their rights, as owners of real property known as and numbered 3 Welcome Lane in Wrentham (“Plaintiffs’ Property” or “the Property”), to use an easement for access to their property. Plaintiffs claim this easement runs over land known as and numbered 25 Welcome Lane in Wrentham which is owned of record by Jeffrey M. Liber and Jane E. Liber (“Defendants”).

The parties agree that the location of and access to the easement is defined by a Stipulation and Agreement entered into by their respective predecessors-in-interest in a Probate Court Partition Action in 2002, but disagree as to the interpretation of that agreement. Attached to and incorporated by reference to that agreement was a plan of land entitled “Plan of Land on Creek Street, Wrentham, Mass., May 25, 2001, Scale 1" + 40'” (“the Plan). The body of that plan depicts Plaintiffs’ property, Defendants’ property, and the location of Welcome Lane. According to the plan, Welcome Lane passes by the northwestern border of Plaintiffs’ property but does not directly abut the property. Above this main portion of the plan is another depiction of the same area. (“the detail”). This detail depicts a way labeled “Access and Utility Easement” which is in the same general location as Welcome Lane. However, upon passing Plaintiffs’ property, this way, labeled as a “use and access easement”, directly abuts the property along its entire northwestern border. A copy of the Plan is attached hereto marked as “Decision Sketch”.

Plaintiffs argue that the agreement above referred to and the Plan attached thereto included access to the easement from their property. Defendants disagree, contending that the Plan does not show a driveway or other means of access from the Plaintiffs’ property, and that the settlement agreement relates only to the way shown on the attached plan as Welcome Lane.

On July 22, 2008, Plaintiffs filed a motion seeking judgment on the pleadings or entry of summary judgment. Defendants opposed the motion on August 18, 2008, and a hearing on the motion took place on December 30, 2008 after attempts of settling the dispute were not successful. Attached to both the motion and the opposition were affidavits from surveyors attempting to interpret the plans for the respective parties. On June 22, 2009, this Court issued an Order denying Plaintiffs’ motion, suggesting that counsel attempt to come up with a stipulation of agreed facts, and ruling that there were too many factual issues to allow disposal of the case by motion. After several continuances, due in part to ongoing settlement negotiations and the unavailability of witnesses, the trial took place in Boston on June 2, 2010. Twenty-one exhibits, some with multiple parts, were introduced into evidence. Six witnesses testified. The testimony was reported and Post-Trial memoranda were filed on August 31, 2010.

FINDINGS OF FACT

Based on all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and based also on the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, including a stipulation as to certain facts submitted by them, I find the following facts.

1. Plaintiffs (the Gordons) are the owners of a parcel of land at 3 Welcome Lane (“Locus”) in Wrentham.

2. Locus comprises 5,693 square feet and contains only a garage. The Gordons own other land on Lake Archer in the area but do not own other land on Welcome Lane. They acquired title to Locus by deed dated July 5, 2006 and recorded with the Norfolk County Registry of Deeds in book 23875, Page 537.

3. Defendants (“the Libers”) are the owners of a single-family residence and detached garage located at 25 Welcome Lane, having acquired that property originally by a deed dated July 27, 2007 and recorded in Book 23918, Page 583.

4. The Liber deed references Lot 8 as shown on a plan recorded the Norfolk Registry of Deeds in Plan Book 498, Plan No. 453 of 2002.

5. A property line of 25 Welcome Lane (the Liber property) was adjusted by a Boundary Line Agreement and deeds between Kevin G. Poole and Michael F. Vecchione and Bruce S. Urko and Laurie-Jean Urko (abutters to 25 Welcome Lane) recorded in Book 23105, Pages 1, 7, and 8. The new boundary line was shown on a plan recorded there in Plan Book 546, Plan 11.

6. Welcome Lane is not a public way or approved subdivision roadway in Wrentham.

7. In February of 2002, the parties’ predecessors in title, Kevin G. Poole and Michael F. Vacchione as Petitioners and Thomas A. Brady and Shirley L. Brady as Respondents, filed with the Norfolk County Probate Court a “Stipulation & Settlement Agreement” (the “Agreement”) to resolve a Petition for Partition which had been filed in that Court. The Agreement was recorded in Book 16965, Page 168 and referred to a plan recorded in Plan Book 498, Page 453. It provided, inter alia, that Poole and Vacchione “shall be the owners of the new Lot 8 on said plan”, and that the Respondents Brady shall be the owners of Lots 7, 7A and 6 thereon. More importantly, it stated that “Lot 7A shall be deemed to be appurtenant to Lot 7, and those two lots shall include the house having the address of 15 Welcome Lane, Wrentham.” (Emphasis added).

8. Paragraph 10 of the Agreement provides in part that “(the parties) acknowledge that the record title to date does not give a boundary for Welcome Lane nor defines with specificity its location on the ground. The boundaries of the easements described in the attached deeds, which easements are intended to physically overlay Welcome Lane as now laid out on the ground, the areas in front of the Parties’ respective houses and the points of access to the abutting properties, shall henceforth all be as depicted on the plan”.

9. The parties to the Agreement all owned the land comprising Lots 6, 7, 7A and 8 in common, including the fee in Welcome Lane and/or the existing driveway.

10. Paragraph 7 of the Agreement provides in pertinent part that “The Parties agree that Welcome Lane shall remain in its current location and remain the prime means of access at this time to and from Creek Street for all of the new lots and buildings thereon.”

11. Paragraph 8 of the Agreement provided, in pertinent part, that “the new lots shall each have the benefit of or be burdened by, as the case may be, the easements described in the deeds attached, so as to preserve access of each of the parties to their respective houses and so as to preserve existing access rights over Welcome Lane possessed by abutting property owners.”

12. Lot 7A, at one time owned by the Bradys, was conveyed by Jay E. Short and Patricia Talamini-Short to Harvey Gordon and Karen Gordon, Plaintiffs herein, by deed dated July 5, 2006 and recorded in Book 23875, Page 538. The deed provided that Lot 7A was subject to utility easements and that it was subject to and had the benefit of certain easements relating to the placement of sewage disposal systems on Lots 6, 7, 7A and 8. It also stated specifically that the sale of Lot 7A was subject to the Stipulation and Settlement Agreement referred to above, and that the Lot was conveyed with “the benefit of an easement to pass and repass with vehicles on the way known as Welcome Lane in the areas where such Lane, as now bounded and defined on said Plan, crosses over said Lot 8, Lot 7, and Lot 6.”

13. Poole and Vacchione, having purchased Lot 8 from themselves and the Bradys in 2002 pursuant to the Settlement Agreement, conveyed it to the Libers by deed dated July 27, 2006 and recorded in Book 22918, Page 583. The deed provided that the buyers had the benefit of an easement across Lots 7 and 6 “on the way known as Welcome Lane in the areas where such land, as now bounded and defined on said Plan, cross over Lot 8" and that it was subject to a corresponding easement for the benefit of Lots 7A, 7 and 6 on the way known as Welcome Lane where such land is “now bounded and defined on said Plan.”

DISCUSSION

The parties agree that the merits of this case involve a determination of the meaning of the relevant sections of the Agreement and the interpretation of the Plans. Plaintiffs contend they have a right of access to their property (Lot 7A) over an easement shown on the Plan, even though Welcome Lane passes near their property but does not actually abut it. They argue that language in the Agreement and deed indicate that their lot and the others were given the right to use the “then existing Welcome Lane” and not just that way as shown on the plan. Neil Murphy, PE and RLS, drafted the plan and testified at trial and in previously filed affidavits that the purpose of the Plan was to show a clearer easement over Lots 6, 7 and 8. He further testified that his intention was to also include the then-existing Welcome Lane driveway in the easement and that it would pass in front of Lot 7A, thus providing access to it. This way to which he refers is shown in the detail on his plan as “access and utility easement”.

Plaintiffs attach much weight to the language in the various instruments stating that easements were granted to certain lots “on the way known as Welcome Lane in the areas where such Lane, as now bounded and defined on said Plan, cross over said Lots 8 and 6.” Plaintiffs point out that the only easement shown on the Plan that meets this description, other than the Electric and cable Easement, is the “Access and Utility Easement” shown in the detail on the Plan.

Harvey Gordon testified that granite posts and chains currently in place on the Liber property, although installed by a predecessor owner (Vacchione) in 2003, interfere with the use of his property (Lot 7A). Vacchione testified that no easement providing access to Lot 7A, other than the one allowing access thereto from the house on “appurtenant” Lot 7, was ever discussed during the settlement negotiations in 2002.

In short, Gordon claims there was no reason why Lots 7 and 7A could not be conveyed separately, and that he has a right to access Lot 7A, not just from the once commonly held Lot 7, but also over the utility and access easement shown on the Plan. He seeks Orders from this Court compelling the Libers to remove the granite posts and chains which interfere with his claimed access.

Defendants, not surprisingly, disagree. Simply stated, based on the language stating that the two lots were intended to be “appurtenant”, they claim that Lots 7 and 7A were not intended to be separately conveyed, pointing out that the house was on one lot while the garage was on the other. In their view, therefore, there was no need for anyone to access Lot 7A other than someone residing in the house which went with it, especially since there was no question that Lot 7 abutted Welcome Lane, and that Lot 7A contains less than 6,000 square feet.

Plaintiffs, citing the policy to disfavor restraints on alienation, contend that there was no reason why the Bradys or their successors could not convey Lot 7A as a separate parcel. They argue that while the agreement indicates that Lots 7 and 7A were together at that time, there was nothing in the agreement to indicate that they could not be conveyed to different parties at some time in the future. Citing Fisher v. Fisher, 23 Mass. App. Ct. 205 (1986), they contend that restraints on alienation of property are not favored as a matter of public policy, and further argue that the Supreme Judicial Court ruled in Roberts v. Jones that “an agreement upon the alienation of an estate in fee simple for a period beyond that fixed by the rule against perpetuities is contrary to public policy and cannot be enforced.” Roberts v. Jones, 307 Mass. 504 , 508 (1940).

There is nothing in the record to indicate that the parties to the Agreement, and especially the Bradys, gave any thought to the possibility that Lots 7 and 7A would some day come into separate ownership, and to what would happen if they did. Clearly, the party owning the house needed access to their garage. There was no reason to give access to the garage to anyone who did not also own the house which went with it. I see no reason at this point in time to rule that any party not owning Lot 7 (“the appurtenant lot”) had an easement to access Lot 7A. Simply put, such a party would have no reason to go there, especially since Welcome Lane did not abut the lot. The parties to the Agreement could have made provisions to that effect if they cared to do so: they did not.

On the larger question regarding the intent of the parties to the Agreement, I find and rule they intended that Welcome Lane would be located on the Plan and that the boundaries of any easements would physically coincide with the boundaries of Welcome Lane. The Agreement was part of a settlement of a contested case and involved only the rights of the parties thereto. They were concerned with access to their homes. The fact that Welcome Lane does not abut the Gordon lot leads me to conclude that the parties to the Agreement intended only to provide for access to Lot 7A from Lot 7, and not to provide access to Lot 7A from other lots in the area. If they had intended to provide access to Lot 7A for owners of other lot owners, they could have done so. Again, they did not. Vacchione, one of the litigants in the partition case and one of the signers of the Agreement, testified that the signers intended only to give access to the garage on Lot 7A to the owners of Lot 7. In fact, it was not possible at the time to get from the garage to Welcome Lane because the area was overgrown and impassible.

CONCLUSION

After fully considering the testimony and other evidence submitted at trial, I conclude that Plaintiffs, as owners of Lot 7A, do not have a right to access their property over Welcome Lane. The deeds and the Agreement conferred no rights to cross over Lot 8 to access Lot 7A, nor did the Agreement “and the attendant circumstances” indicate an intent to confer such a right. Subsequent deeds and Plans are not relevant to an interpretation as to the intent of the parties to the 2002 Agreement, and little or no evidence was introduced which might establish any implied or prescriptive right to access Lot 7A outside Welcome Lane.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: May 20, 2011

Decision Sketch