This is a complaint brought by Alfred E. Wilson of Chelmsford in the County of Middlesex, as Trustee of the Old Landmark Realty Trust under Declaration of Trust dated October 6, 1975 and duly recorded with Middlesex North District Registry of Deeds in Book 2168, Page 682 [Note 1] (Exhibit No. 15), against William E. Riney and Helena S. Riney, both of said Chelmsford, individually and as Trustees under the will of M. Edward Riney, late of said Chelmsford, Middlesex Probate No. 426029. The complaint alleged that the defendants had caused an excavation to be made on land now of the plaintiff and a subsurface sewage system to be installed therein on or about April 15, 1971; that the defendants have continually entered upon such land for the purposes of pumping, cleaning or otherwise maintaining said sewage system; and that on or about December 31, 1975 the defendants caused a trench to be dug upon the plaintiff's land. The complaint also contained further allegations as to the parking of motor vehicles on land of the plaintiff, but there was no evidence introduced at the trial as to this nor as to said trench, and such allegations will not be further considered in this decision. In their answer, the defendants denied the substantive portions of the complaint.
A trial was held at the Land Court on October 27, 1977 and November 3, 1977. During the second day of trial, the defendants moved to strike, as hearsay, records of the All Saints Parish Church admitted de bene and for leave to amend their answer to include, as affirmative defenses, adverse possession and laches. An Interlocutory Order granting leave to amend and denying the motion to strike was entered on December 7, 1977. Such order stated, in part, that:
"Business", as used in G. L. c. 233, § 78 is not restricted to the commercial setting. In Commonwealth v. Leonard, 352 Mass. 636 (1967), it was held that records of the Massachusetts Turnpike Authority were admissible under c. 233, § 78. Similarly, the minutes of the meetings of the vestry of said Church regularly kept by the secretary of the corporation fall within the statutory language and are admissible, having been identified by the custodian thereof.
To avoid any possible prejudice to the plaintiff resulting from the introduction of evidence de bene at the trial relative to said affirmative defenses, a further day of trial was held on March 6, 1978.
At the trial a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The Court took a view of the area in which the subsurface sewage system is located on November 29, 1977.
The Parish of All Saints formerly owned the lands which now belong to the plaintiff and the defendants. The defendants' parcel was conveyed out first by said Church to Leroy J. Parkhurst by deed dated May 25, 1894 and duly recorded in Book 255, Page 353 (Exhibit No. 11). The parcel was described in said deed as follows:
"a certain parcel of land situated in said Chelmsford on the easterly side of the Lowell road so called Containing three thousand one hundred and sixty five (3165) square feet more or less and thus bounded to wit: Beginning at the northwesterly corner of the premises on said road at a stone post at corner of land of heirs of Levi Howard, deceased: thence easterly on said Howard land sixty three and seven-tenths (63 7/10) feet to a stone post: thence southerly 77º 33' fifty two (52) feet to other land of said parish: thence westerly on the last named land in a line parallel with the first described line sixty three and seven-tenths (63 7/10) feet to said road: thence northerly on said road fifty two (52) feet to the point of beginning."
It was not until 1973 that Parish of All Saints conveyed the premises now owned by the plaintiff to Michael P. Eliopoulos and Samuel W. Zouzas by deed dated December 28 of said year and recorded in Book 2097, Page 45 (Exhibit No. 13). The description in said deed bounds northeasterly and northwesterly by Riney land, and there is no dispute that the parties in this case own abutting property. Neither do the defendants seriously contend that they hold title of record to the area in which the sewage system was installed. Exhibit No. 4 is a plan entitled "Plan of Land in Chelmsford, Mass. Surveyed for Alfred E. Wilson, Trustee Old Landmark Realty Trust" dated March, 1977 by Emmons, Fleming & Bienvenu, Inc. which shows the properties of the parties. The plan was prepared under the supervision of J. Paul Bienvenu, who testified at the trial, and I find upon all the evidence that it accurately shows the premises in question. Exhibit No. 6 is an "Application for Sewage Disposal Installation" filed with the Health Department of the Town of Chelmsford. Attached thereto is a plot plan which depicts the system and its location in respect to the building on land of the defendants. The area occupied by the system is at least thirty-three feet in depth from the rear wall of the existing building on defendants' land and clearly encroaches on property to which the plaintiff holds the record title.
On all the evidence I find and rule as follows:
1. The male defendant's mother, Catherine D. Riney, acquired title to the property from Annie J. Parkhurst and Gilbert H. Perham by deed dated October 13, 1949 and recorded in Book 1125, Page 381 (Exhibit No. 3). Thereafter, by mesne conveyances between members of the Riney family, title devolved to M. Edward Riney, who died August 17, 1968 testate. The locus passed as part of the residue to the defendants as trustees.
2. During the ownership of the elder Rineys, the Church proposed that a strip of land three feet in width along the southerly boundary of the Riney property be sold to them to resolve a problem as to the use of the door on that side of the Riney building and that an additional strip up to twenty-two feet wide along the southerly side and up to sixteen feet wide in the area in question be leased, but these proposals never were consummated.
3. On April 15, 1971 excavation was commenced on land then belonging to the Parish of All Saints and was completed on the following day. Efforts were made by the Church to have the work cease, but the installation was completed despite the fact that Mr. Riney was informed that the work was being done on Church property.
4. Thereafter, on April 20, 1971, the defendant, William E. Riney, wrote a letter to the Church which read as follows (Exhibit No. 9A):
"Dear Rev. Twelves: I wish to take this opportunity to thank you and your parishioners for allowing us to use your land, so that we might install a septic tank system behind 9-11 Chelmsford Street. This was a much appreciated neighborly gesture. Enclosed please find a small donation, which I am sure the church will find some use for. Thank you again...."
The letter enclosed a check in the amount of $100.00 payable to the Church and drawn on Union National Bank (Exhibit No. 9).
5. After efforts to resolve the matter amicably failed, the Church engaged counsel to institute legal proceedings, but no litigation in fact was commenced. The premises subsequently were sold, and the problem of the underground sewage system disclosed to the purchasers.
6. The terrain of the disputed area is irregular with outcroppings of rock and a variegated growth of a scrub nature including wild myrtle, poison ivy, fallen leaves and some trees. There also is a small area of grass which intermittently was cut by or on behalf of the defendants. On at least one occasion the defendants caused ladders to be stored in the area, and on another the Church gave permission for a children's swing to be erected. Clotheslines and ash barrels were kept there at one period. Other than for this sporadic use the area lay fallow.
7. The Court attempted to ascertain during the trial what the existing system for the disposal of waste material was prior to the installation of that of which complaint now is made, but was unsuccessful in eliciting any clear proof. There still is a sewer manhole cover in the front yard of the Riney property, but its function and the land it serves apparently is unknown. One witness indicated that there once had been a cesspool behind the house, but no evidence was introduced as to where, for how long and of what type such system may have been.
It would make no difference in the disposition of this case whether the defendants claimed title or only an easement by prescription, for if they established either, their sewage system could remain. But I find that neither claim is supported by the evidence. The rules for determining whether title by adverse possession has been proven have frequently been stated and hardly need repeating. It is sufficient to state that there must be shown at least twenty years' uninterrupted occupation under a continuous claim of title or right which is known to the real owner or is so open, notorious and visible as to warrant the conclusion that the owner must have known of the occupation. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (196l); Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959); McDonough v. Everett, 237 Mass. 378 , 383-84 (1921); Attorney General v. Ellis, 198 Mass. 91 , 97-98 (1908). The evidence introduced by the defendant fell short of establishing twenty years' occupation under a claim of right.
To establish an easement by prescription, the same elements must be proved as for title by adverse possession except exclusive use. Labounty v. Vickers, 352 Mass. 337 , 349 (1967); G. L. c. 187, §2. However, there is a rule in Massachusetts "that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription". Flynn v. Korsack, 343 Mass. 15 , 18 (196l); accord Truc v. Field, 269 Mass. 524 , 529-30 (1930). This rule cannot be applied here, however, for there is a failure of proof as to use of the parcel for a sewer easement prior to April of 1971. Similarly there is no evidence upon which to base a finding of an implied easement. Although the instrument need not expressly recite the easement, an easement will be implied only where there was an open and continuous use at the time of the grant, it is reasonably necessary for the enjoyment of the land and the circumstances show that the parties intended to create an easement. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105-06, 108 (1933); Novello v. Caprigno, 276 Mass. 193 , 196-97 (1931). Intent may be "gathered from the language of the instruments when read in the 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." Dale v. Bedal, 305 Mass. 102 , 103 (1940); see Kesseler v. Bowditch, 223 Mass. 265 , 268 (1916).
The conclusion is inescapable that the defendants attempted to exercise a private right of eminent domain by a bold intrusion on land of the Church and when challenged, attempted to justify their action by a brazen letter. The plaintiff accordingly is entitled to an order compelling the defendant to remove the sewer system and to restore the property to its original condition. Blood v. Cohen, 330 Mass. 385 , 388-89 (1953). The usual rule is that injunctive relief is available even if the trespass was accidental, J. D'Amico, Inc. v. City of Boston, 345 Mass. 218 , 224 (1962), and even if "[i]njunctive relief may impose upon the defendant an expense out of proportion to the apparent benefit to the plaintiff." Marcus v. Brody, 254 Mass. 152 , 155 (1925).
There are two recognized exceptions to the general rule that may be pertinent here. Equity will refuse injunctive relief, first, where the plaintiff's conduct constitutes laches and, second, where the trespass was the result of an innocent mistake and a decree ordering removal would impose upon the defendant undue hardship. Cobb v. Massachusetts Chemical Co., 179 Mass. 423 , 426 (1901).
The Rineys have asserted the defense of laches. Whether or not there has been inaction or unreasonable delay resulting in prejudice to the defendant is, in any case, a factual determination. Thorpe v. Wm. Filene's Sons Co., 40 F.2d 269, 269 (D. Mass. 1930); Goldstein v. Bea1, 317 Mass. 750 , 759-60 (1945); Carter v. Sullivan, 281 Mass. 217 , 226 (1932); Patterson v. Pendexter, 259 Mass. 490 , 493 (1927). The defendants' defense of laches fails, however, for they have in no way been prejudiced by the plaintiff's delay, if such it be, in bringing this action. A trespass is after all a continuing wrong, and the defendants knew before the sewer system was installed, from both the history of the area in question and and the Church's minister, that they had no title to it. The defendants have not changed their position in reliance on the delay; rather they have reaped the benefit of it.
The second ground for refusing to order removal of the system, i.e., innocent mistake resulting in undue hardship, is absent. This case is easily distinguished from Loughlin v. Wright Machine Co., 273 Mass. 310 (1930), where the defendant's predecessor in title constructed a sewer, part of which passed through a six-inch strip of land owned by a plaintiff's predecessor in title. Refusing to issue a mandatory injunction, the court held:
"In respect to the relief sought by way of prohibitory injunction against the continuance of the trespasses arising from the continuance of the sewer pipes, and a mandatory injunction requiring the removal of the sewer pipes on the plaintiff's premises and a restoration of the land which has been disturbed by the defendant in the use and maintenance of said sewer pipes, we are of opinion, in view of the facts that the trespass was unintentional, that the plaintiff was not deprived of any beneficial use of the strip by the passing through it of sewer pipes, that no complaint of such use was made for many years by the plaintiff or his predecessors in title of the six-inch strip of land, that a construction of a new sewer to Armory Street would involve large expense to the defendant beyond the small cost of removing the portion of the sewers on the land of the plaintiff, and that this case is within the class of cases where injunctive relief should be refused ...." Id. at 315-16.
It does not follow, however, that the plaintiff is entitled to more than nominal damages. He contends that there is a demand for parking in the Chelmsford business district which makes the locus peculiarly valuable. Before this use would be feasible, a considerable sum of money would have to be expended on the premises. Moreover, the extent of the plaintiffs present parking lot and the volume of traffic therein casts doubt on the need for additional parking spaces. Be that as it may, the plaintiff did not sustain the burden of proof as to damages which "must be reasonably ascertainable from the evidence." Dalton v. Demos Brothers General Contractors, Inc., 334 Mass. 377 , 378 (1956).
[Note 1] All recording references are to said Deeds unless otherwise noted in this decision.