PRISCILLA CROCKER DREIER, EXECUTRIX UNDER THE WILL OF CHARLES F. CROCKER, JR., DAVID W. CROCKER, and TAMSIN CROCKER PECKHAM vs. KATIE E. GRUNER

Plaintiff Priscilla Dreier, Executrix of the will of Charles F. Crocker, Jr. ("Crocker") filed her unverified complaint on June 20, 2008, seeking, pursuant to G.L. c. 231A, a declaratory judgment that Defendant Katie E. Gruner ("Gruner") has no rights in a way known as Pilot's Way in West Barnstable, MA. Gruner filed her Answer on September 2, 2008. A case management conference was held on October 8, 2008. Plaintiff filed her Motion for Summary Judgment on February 10, 2009, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix. On July 7, 2009, this court allowed a joint motion to stay proceedings pending adjudication of a Petition to Partition in the Barnstable Family and Probate Court. On November 6, 2009, this court allowed an assented to Motion to Substitute the Devisees under the will of Crocker (Priscilla Crocker Dreier, David W. Crocker and Tamsin Crocker Peckham) as Plaintiffs. [Note 1] On December 15, 2010, Plaintiffs filed a revised memorandum in support of summary judgment motion, together with Further Statement of Undisputed Material Facts, and Affidavits of Peter S. Farber, Esq. ("Farber"), William H. Lewis, III ("Lewis") (nephew of Crocker and owner of abutting property), and David W. Crocker (Plaintiff). Gruner filed her Cross-motion for Summary Judgment on January 20, 2011, together with supporting memorandum, Statement of Additional Material Facts, Appendix, and Affidavit of R. Andrew Prchlik ("Prchlik") (domestic partner of Gruner). Gruner also filed a Motion to Strike the Affidavit of Peter Farber and certain paragraphs of Plaintiffs' Statement of Material Facts. Plaintiffs filed their Reply Brief on February 10, 2011, together with Opposition to Motions to Strike, and Affidavits of Ann W. Gordon, David W. Crocker (second), Deacon J. Crocker, Eliza Z. Cox, Sara A. Turano-Flores, and Peter S. Farber (second). A hearing on all motions was held on February 16, 2011, and the matter was 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. Comm'r 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. Crocker owned property in Barnstable, Mass. (the "Crocker Homestead") shown as Lots 1 and 2 on plan titled "Subdivision Plan of Land in Barnstable, Mass. for Charles F. Crocker, Jr." dated March 23, 1973 and prepared by Edward E. Kelley (the "1973 Plan"). [Note 2] The Private Way shown on the 1973 Plan and included in the Crocker Homestead is Pilot's Way. [Note 3]

2. Helen B. Miller ("Miller") owned property (the "Miller Lot") to the east of the Crocker Homestead, shown on plan titled "Plan of Land in Barnstable, Mass. to be conveyed to Helen B. Miller" dated May 1938 and prepared by Bearse and Kellogg (the "1938 Plan"). The 1938 Plan shows Pilot's Way as "Private Way". An easterly portion of the Miller Lot was partitioned from the rest of the Miller Lot (Parcel A as shown on the 1938 Plan). By deed dated September 30, 1948 (the "1948 Deed"), Charles Kimball ("Kimball") and his wife Florence Kimball, purchased the remaining portion of the Miller Lot (the "Kimball Lot") [Note 4] from Herbert A. Davidson ("Davidson"). [Note 5] Kimball later conveyed to Crocker the fee in Pilot's Way by deed dated February 23, 1972 (the "1972 Deed"), without reserving any rights in said way. [Note 6]

3. By deed dated June 1, 1973 (the "1973 Deed"), Crocker conveyed to Lewis Lot 2 as shown on the 1973 Plan. [Note 7]

4. In 1983, the Crocker Homestead was subdivided by plan titled "Plan of Land in Barnstable, Mass. for Charles F. Crocker, Jr." dated May 31, 1983 (the "1983 Plan"). Lot 1 on the 1973 Plan was divided into lots 3, 4 and 5. [Note 8]

5. By deed dated January 24, 1984 (the "1984 Deed"), Crocker and his wife Catherine D. Crocker [Note 9] conveyed to Gordon Starr and Sheryl F. Greene-Starr Lot 4 as shown on the 1983 Plan. [Note 10]

6. By deed dated October 24, 1985 (the "1985 Deed"), Lewis conveyed to Thomas M. Shields ("Shields") and B.W.C. Ellis ("Ellis") a lot to the north of the Crocker Homestead (the "Shields and Ellis Lot"). [Note 11]

7. By three written instruments dated October 23, 1985 (the "1985 Easements"), each of Marjorie C. Handy, [Note 12] Gordon M. Starr and Sheryl F. Greene-Starr, and Crocker conveyed to Shields and Ellis an easement for a right of way over their respective properties, allowing access to the Shields and Ellis Lot from Route 6A. [Note 13]

8. The easement instrument from Crocker to Shields and Ellis (the "Shields-Ellis Easement") conveys a perpetual right of way over Lot 5 on the 1983 Plan [Note 14] and an easement over Pilot's Way. With respect to the easement over Pilot's Way, the instrument states:

Also granting a perpetual easement to the said B.W.C. Ellis and Thomas M. Shields, and their heirs, successors and assigns, over Pilot's Way, as shown on [the 1983 Plan], to be used in common with all others entitled thereto for all purposes for which ways are used in the Town of Barnstable, including the right to grant like rights to others.

9. By deed dated December 30, 1986, Shields and Ellis conveyed to Alan P. Taber, Jr. ("Taber") the Shields and Ellis Lot, "together with rights and reservations of record." This deed also states: "Reserving to the Grantors the right to use all easements of record relating to the premises herein conveyed, including the right to grant like rights to others."

10. In 1988, the Crocker Homestead was subdivided again by plan titled "Plan of Land in Barnstable, Mass. for Charles F. Crocker, Jr." dated July 20, 1988 (the "1988 Plan"). Lot 3 in the 1983 Plan was divided into three lots, numbered 6, 7 and 8. [Note 15]

11. By deed dated September 13, 2002 (the "2002 Deed"), Peter Toennies purchased the Kimball Lot from Virginia B. Randolph. [Note 16] [Note 17] Peter Toennies subsequently had the Kimball Lot defined by a plan titled "Plan of Land prepared for Peter Toennies located in the Town of Barnstable, Massachusetts" dated June 26, 2003 and prepared by Coastal Engineering Co. (the "2003 Plan"). The 2003 Plan shows the westerly boundary of the Kimball Lot as Pilot's Way.

12. By deed dated February 3, 2005 (the "2005 Deed"), Peter Toennies conveyed to himself and Richard Schiffman, as Trustees of the Pilot's Way Trust, a portion of the Kimball Lot (the "Toennies Lot"). [Note 18]

13. In May, 2005, the Trustees of Pilot's Way Trust subdivided the Toennies Lot into two lots by plan titled "Plan of Land in West Barnstable, MA prepared for Peter H. Toennies and Richard F. Schiffman", dated May 5, 2005 and prepared by Down Cape Engineering Co. (the "2005 Plan"). The 2005 Plan divides the Toennies Lot into numbered Lots 1 (the "Southern Lot") and 2 (the "Northern Lot").

14. By deed dated August 8, 2006, Richard F. Schiffman, as sole surviving Trustee of Pilot's Way Trust, conveyed to Amanda N. Toennies ("A. Toennies"), Jane E. Sacco ("Sacco"), and Craig P. Toennies ("C. Toennies"), the Northern Lot on the 2005 Plan.

15. A written instrument dated November 14, 2006, signed by Shields, Ellis, A. Toennies, Sacco, and C. Toennies (the "Toennies-Sacco Easement"), states that Shields and Ellis convey to A. Toennies, Sacco, and C. Toennies a perpetual right of way, in common with the Grantor and others legally entitled thereto, in, over, and under a certain private way known as Pilots Way ... appurtenant to Grantees' property ... for all purposes for which ways are used in the Town of Barnstable, including the right to construct, install, and maintain all utilities therein.

16. In response to a submitted plan to develop the Northern Lot, on or around November 14, 2007, Prchlik received a letter (the "2007 Letter") from Attorney Patrick M. Butler of the firm Nutter, McClennen & Fish, who represented the Estate of Crocker. The 2007 Letter stated, in part, that based upon a collective review, including a review of "the easement that purports to provide rights to [the Northern Lot] to utilize Pilot's Way," conducted by a Land Court title examiner, "we have significant questions regarding the ability of[the Northern Lot] to utilize Pilot's Way."

17. By deed dated March 3, 2008, A. Toennies, Sacco and C. Toennies conveyed to Gruner the Northern Lot, "[t]ogther with the right to use Pilots [sic] Way ... in common with all others legally entitled thereto in and over the same, for all purposes for which ways are commonly used in the Town of Barnstable, including the installation and maintenance of utilities."

18. On March 13, 2008, Prchlik obtained a building permit on behalf of Gruner from the Barnstable Building Department to construct a single family dwelling on the Northern Lot. [Note 19]

19. Plaintiffs received title to Lot 5 on the 1983 Plan and Lots 6,7,and 8 on the 1988 Plan upon Crocker's death on June 26, 2006.

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Gruner's Motion to Strike must first be addressed. Gruner filed a Motion to Strike the Affidavit of Peter S. Farber and a Motion to Strike Paragraphs 81-83 and 90-91 of Plaintiffs' Statement of Facts. With respect to Farber's affidavit, Gruner contends that Farber's testimony is not based on personal knowledge, lacks evidentiary support, and draws conclusions of law. Further, Gruner states that, as Plaintiffs' counsel, it is inappropriate for Farber to testify as an expert witness on his clients' behalf and for portions of Plaintiffs Statement of Facts to rely solely upon Farber's testimony. Mass. R. Civ. P. 56(e) states that affidavits in support of or opposition to a motion for summary judgment "be made on personal knowledge, ...set forth such facts as would be admissible in evidence, and ...show affirmatively that the affiant is competent to testify to the matters stated therein ... [and that] sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Farber's affidavit largely details the history of the chain of title of parcels of land; Gruner does not object to the title documents themselves, but to Farber's interpretation of them. This court will allow Farber's affidavit to remain on the record, although it is worth noting that this court lends no weight to any conclusions that Farber's testimony draws regarding the meaning or content of any title documents. Nevertheless, Gruner's Motion to Strike Farber's Affidavit is DENIED. Gruner also moves to strike Paragraphs 81-83 and 90-91 of Plaintiffs' Statement of Facts, which discuss Gruner's acquisition of title insurance for the right, title, and interest in the Northern Lot, including the right to travel over Pilot's Way. Gruner argues that since this case hinges upon the interpretation of the 1985 Shields-Ellis Easement, evidence that Gruner or Gruner's predecessor-in-title obtained title insurance in 2006 and 2008 is completely irrelevant, and can only possibly serve a prejudicial purpose. Plaintiffs counter-argue that evidence of Gruner's title insurance is directly relevant as a rebuttal to Gruner's estoppel defense; namely, Plaintiffs assert that Gruner relied upon this title insurance policy, which included use of Pilot's Way, rather than representations made by Plaintiffs, in deciding to purchase and build upon the Northern Lot and therefore evidence regarding Gruner's procurement of title insurance is relevant. The inclusion of information about Gruner's title insurance is not irrelevant to the count relative to the estoppel argument and therefore shall not be stricken. [Note 20] Accordingly, Gruner's Motion to Strike Paragraphs 81-83 and 90-91 of Plaintiffs' Statement of Facts is DENIED.

With regards to summary judgment, Plaintiffs claim that Gruner has no right to use Pilot's Way in any manner because Gruner does not possess a valid easement for use of Pilot's Way. They argue that because Kimball deeded the fee to Pilot's Way to Crocker in 1972, the land to the east of Pilot's Way retained no rights in Pilot's Way; as a result Gruner or Gruner's predecessors in title would have had to secure a valid easement from the owner of Pilot's Way to have obtained rights in Pilot's Way. Plaintiffs argue that the Shields-Ellis Easement was appurtenant to the Shields and Ellis Lot and, as such, rights in the Shields-Ellis Easement passed to Taber as owner of the Shields and Ellis Lot; as a result, the Toennies-Sacco Easement is invalid, because Shields and Ellis did not retain any rights to Pilot's Way and therefore could not convey any such rights to anyone else. [Note 21] Additionally, Plaintiffs contend that, even if Shields and Ellis had been legally able to sell their easement in Pilot's Way, the Toennies-Sacco Easement is invalid because it constitutes an overburdening of the Shields-Ellis Easement by benefiting land other than the Shields and Ellis Lot, which was the dominant estate of the Shields-Ellis Easement.

Gruner argues that the Shields-Ellis Easement was an easement in gross, the rights of which Shields and Ellis explicitly retained in the conveyance of the Shields and Ellis Lot to Taber. Therefore, Gruner claims, Shields and Ellis validly conveyed a right of way in Pilot's Way to A. Toennies, Sacco and C. Toennies in the Toennies-Sacco Easement, which was in turn conveyed to Gruner. Gruner argues that, because the Shields-Ellis Easement was an easement in gross which included a right to convey said easement to others, Shields and Ellis were entitled to convey the right to use Pilot's Way, which they had received as a result of the Shields-Ellis Easement, regardless of what parcel of land was being benefited; as such, Gruner states the Toennies-Sacco Easement did not overburden the Shields-Ellis Easement. Additionally, Gruner contends that Plaintiffs are estopped from seeking relief with respect to Gruner's use of Pilot's Way because Plaintiffs delayed objecting to Gruner's claim of right-of way until after Gruner had closed on the Northern Lot and undertaken a construction loan. Gruner states that Plaintiffs waited to assert their rights in Pilot's Way "in hopes that [Gruner] would contribute monetarily to the improvement of Pilot's Way."

The Nature of the Shields-Ellis Easement.

When interpreting deeds and written conveyances of easements, it is clear that the court is to consider both the language of the written instrument and the relevant attendant circumstances that existed at the time of the instrument's creation. Patterson v. Paul, 448 Mass. 658 , 665 (2007) (citing Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998); Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990)). In order to analyze the appropriate documents and circumstances, this court must first determine whether, as Plaintiffs contend, all three of the 1985 Easements as well as the deed for the Shields and Ellis Lot should be considered a single transaction. Multiple instruments signed contemporaneously between the same parties regarding the same land or object are generally considered the same transaction in order to ascertain the intent of the parties. Haugh v. Simms, 64 Mass. App. Ct. 781 , 787 (2005); See also, Dana S. Courtney Co. v. Quinnehtuk Co., 303 Mass. 48 , 50 (1939); Sibley v. Holden, 27 Mass. 249 , 250 (1830). All of the 1985 Easements were signed within the same two day period, making them contemporaneous. [Note 22] Plaintiffs contend that all of these documents are related, as they deal with Shields' and Ellis' ownership of the Shields and Ellis Lot, which inherently involves Shields' and Ellis' ability to access the Shields and Ellis Lot from a public way. This court agrees, and will consider the 1985 Deed to the Shields and Ellis Lot as well as the three 1985 Easements in order to discern the nature of the Shields-Ellis Easement.

Turning now to whether the Shields-Ellis Easement is appurtenant or in gross, this court acknowledges that there is a "general presumption favoring appurtenant easements as distinguished from personal easements (easements in gross)." Schwartzmann v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996). "An easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate." Willets v. Langhaar, 212 Mass. 573 , 575 (1912) (citing Dennis v. Wilson, 107 Mass. 591 (1871)). "An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land." Schwartzmann, 41 Mass. App. Ct. at 223 (citing Restatement of Property § 453 (1994)).

Examining the easement instruments, the 1985 Deed to the Shields and Ellis Lot and the plans to which these documents refer, it is clear that the Shields-Ellis Easement, in conjunction with the other 1985 Easements, was created in order to benefit the Shields and Ellis Lot by allowing access from Route 6A. Indeed, Gruner does not deny the fact that the 1985 Easements, including the Shields-Ellis Easement, provided the only access to the Shields and Ellis Lot from.Route 6A, the nearest public way. Rather, Gruner argues that the absence of any explicit language of appurtenance or a dominant estate in the Shields-Ellis Easement leads to the inference that it was intended to be an easement in gross. This argument must fail. Although clear language stating that an easement is to be appurtenant would be preferable for the purposes of interpretation, the fact that an easement instrument does not contain the word "appurtenant" or "dominant estate" does not mean that the easement is an easement in gross, especially in light of the attendant circumstances and the presumption favoring appurtenant easements.

Gruner states that the omission of any language of appurtenance in the Shields-Ellis Easement is of particular significance because in the past Crocker had conveyed easement rights over Pilot's Way which explicitly stated that they were appurtenant in nature. [Note 23] However, the fact that Crocker used the word "appurtenant" in some previous easement instruments does not mean that a failure to include such language in the Shields-Ellis Easement renders the Shields-Ellis Easement an easement in gross. Indeed, the fact that Crocker has a history of granting appurtenant easements to abutting lots for the sole purpose of allowing access to and from Route 6A supports the contention that Crocker intended to convey an appurtenant easement to Shields and Ellis, as Crocker was once again conveying an easement over Pilot's Way to allow an abutting property access to Route 6A. This is especially true since none of the property surrounding the Crocker Homestead had any rights in Pilot's Way. [Note 24] All future owners of the Shields and Ellis Lot would need to be able to use Pilot's Way in order to gain access to their land via Route 6A; logic therefore dictates that Crocker would convey an appurtenant easement to Shields and Ellis, which would run with the Shields and Ellis Lot, rather than an easement in gross that would remain with Shields and Ellis and force Crocker to re-establish an easement for the Shields and Ellis Lot with every subsequent owner.

Gruner also contends that the Shields-Ellis Easement has language of an easement in gross because it explicitly includes "the right to grant like rights to others." Gruner states that this language would become superfluous if the Shields-Ellis Easement were appurtenant, since "in a conveyance of real estate all ...appurtenances belonging to the granted estate shall be included in the conveyance." G.L. c. 183 § 15. Typically, interpretations of a deed or easement that render portions of the instrument superfluous are unfavorable. [Note 25] However, it is not unusual for a document to contain a statement that is legally unnecessary. Such statements should not dictate the interpretation of a document; rather, the court must look to the intent behind the use of such terms, and whether their inclusion was meant to determine the nature of the agreement. In the present case, although the Shields-Ellis Easement did not need to state that the easement was conveyable in order for it to be appurtenant, such a statement does not mean that the Shields-Ellis Easement is an easement in gross. Indeed, specifically including a right to convey like rights in an easement instrument is more indicative of an appurtenant easement, as it is consistent with the intent to convey a right of way for the benefit of a particular parcel of land for a particular purpose, which can be conveyed and enjoyed by all future owners of that parcel. See Denardo v. Stanton, 74 Mass. App. Ct. 358 , fn 10 (2009) ("An easement in gross generally does not benefit and run with a particular parcel of land."). Contrastingly, including a right to convey with an easement in gross could translate into enormous rights for the dominant estate holder. Interpreting the phrase "the right to grant like rights to others," taken to its extreme without limitation, would allow the owner of the easement in gross to grant such rights to hundreds of other people with no connection to either the dominant estate or the servient estate. Such an interpretation would be ludicrous.

In sum, the language of the Shields-Ellis Easement does not make it clear whether the easement is appurtenant or in gross. Accordingly, the interpretation of the Shields-Ellis Easement hinges upon the intended use of the Shields-Ellis Easement. The Shields-Ellis Easement undeniably benefits the Shields and Ellis Lot by providing an access route to a public way. Since the Shields-Ellis Easement was "created to benefit and [did] benefit the possessor of the [Shields and Ellis Lot] in his use of the land", I find that the Shields-Ellis Easement was appurtenant to the Shields and Ellis Lot. Schwartzmann, 41 Mass. App. Ct. at 223 (citing Restatement of Property § 453 (1994).

Transfer of the Easement Rights.

Since appurtenant easements run with the land, Shields and Ellis conveyed the Shields-Ellis Easement to Taber along with the Shields and Ellis Lot in 1986. Although Shields and Ellis attempted to retain the rights of the Shields-Ellis Easement in their deed to Taber, this portion of the deed is invalid because "appurtenances belonging to the granted estate shall be included in the conveyance." G.L. c. 183 § 15. The record does not indicate that either Shields or Ellis retained any other property in the vicinity of Pilot's Way which would justify any easement in gross analysis. Accordingly, the Shields-Ellis Easement remained with the Shields and Ellis Lot, and Shields and Ellis retained no rights in Pilot's Way. As such, Shields and Ellis were not legally capable of conveying to A. Toennies, Sacco, and C. Toennies an easement to Pilot's Way. [Note 26] Gruner, in turn, never received an easement granting a right of way to Pilot's Way, because A. Toennies, Sacco and C. Toennies were unable to convey one. I therefore find that Gruner has no rights in Pilot's Way.

Estoppel.

"Circumstances that may give rise to an estoppel are: (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Bongaards v. Millen, 440 Mass. 10 , 15 (2003). Gruner claims that Plaintiffs are estopped from asserting rights to Pilot's Way because Plaintiffs waited to take action until Gruner had purchased the Northern Lot, received approval for construction and undertaken loans for the development of the property. However, the record reflects that Plaintiffs represented that Plaintiffs did not believe that Gruner held any rights to Pilot's Way upon learning of Gruner's desire to build on the Northern Lot. In particular, the 2007 Letter stated that there were "significant questions regarding the ability of [the Northern Lot] to utilize Pilot's Way." Notably, Gruner did not purchase the Northern Lot until March 3, 2008 and Prchlik did not receive a building permit on behalf of Gruner until March 13, 2008. Clearly, then, Gruner had ample notice of the fact that Plaintiffs did not believe that the Northern Lot carried any rights with respect in Pilot's Way. Based on these facts, I find that Plaintiffs are not estopped from asserting their rights to Pilot's Way against Gruner.

Therefore, Plaintiffs' Motion for Summary Judgment is ALLOWED and Gruner's Cross-Motion for Summary Judgment is DENIED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice