MISC 82916

March 29, 1978

Middlesex, ss.

Sullivan, J.


The plaintiffs, George E. Quigley and Jean M. Quigley, husband and wife, of Natick in the County of Middlesex, have brought a complaint pursuant to the provisions of G. L. c. 240 to remove a cloud on the title to their land at 5 Pauline Drive in said Natick. The alleged cloud consists of the utility easement ten feet in width reserved by the plaintiffs' grantor, the defendant Donson Builders, Inc., at the time the plaintiffs purchased the principal portion of their premises. The defendant, Donald F. Zani, of 10 Donovan Lane in said Natick, is the owner of real estate adjoining that of the plaintiffs but without a common back title. Mr. Zani claims to have the benefit of said easement by virtue of an assignment from Donson Builders, Inc. to his predecessors in title, Donald E. Carlson and Pauline M. Carlson.

A trial was held at the Land Court on February 21, 1978 at which a stenographer was sworn to record the evidence. All exhibits introduced at the trial are incorporated herein for the purpose of any appeal. The parties submitted their case on the following stipulation of facts, and the first nine exhibits introduced in to evidence are those attached to the stipulation and referred to therein. Two additional exhibits consisted of Exhibit No. 10, a deed from Dorothy M. Doherty et al to Donald E. Carlson et ux, dated May 19, 1966 and recorded with Middlesex South District Deeds in Book 11119, Page 164 and Exhibit No. 11, a mortgage from George E. Quigley et ux to Natick Five Cents Savings Bank, dated October 19, 1972 and duly recorded in Book 12312, Page 342.

The stipulation between the parties provided as follows:

"Now come the Plaintiffs, George E. Quigley and Jean M. Quigley, and the Defendant, Donald P. Zani and say that in order to save the time and expense of taking proof as to the matters hereinafter referred to that the following matters are hereby stipulated and agreed upon by the parties:

1. The Plaintiffs, George E. Quigley and Jean M. Quigley derive their title to both lot 3 and Parcel A (as described in paragraph 2 below) and the Defendant, Donald P. Zani, derives his title to lots A, B, and C (as described in paragraph 6 below) from different grantors.

2. The Plaintiffs, George E. Quigley and Jean M. Quigley, are the owners of record, as tenants by the entirety, of a certain parcel of land known and numbered as 5 Pauline Drive, Natick, Middlesex County, Massachusetts, said parcel of land being Lot #3 and Parcel A on a plan entitled "Ledgewood Estates, Subdivision of Land in Natick, Mass. Owner and Developer Donson Builders, Inc., Nashoba Survey Co., Inc.", recorded with Middlesex South District Registry of Deeds in Book 11223, Page 83, said plan being Exhibit 3 as annexed hereto and incorporated herein.

3. The Plaintiffs, George E. Quigley and Jean M. Quigley, obtained title to the said Lot 3 by deed of Donson Builders, Inc., dated December 27, 1967 and recorded with said deeds in Book 11448, Page 424, a copy of which is attached hereto as Exhibit 4, said lot being a portion of the premises conveyed by deed of Puritan. Homes, Inc., to Donson Builders, Inc., dated June 23, 1965 and recorded with said deeds in Book 10854, Page 26, a copy of which deed is annexed hereto as Exhibit 1. The land described in said deed (Exhibit 1) is shown on plan recorded with said deeds as filed plan #925, a copy of which is annexed hereto as Exhibit 2.

4. The Defendant, Donson Builders, Inc. conveyed parcels A, B and C together with the right to use several easements to Donald E. Carlson and Pauline M. Carlson, all as more particularly described in a deed dated July 31, 1968 recorded with Middlesex South District Deeds in Book 11561, Page 72, a copy of which is annexed hereto as Exhibit 5. The plan showing the locus described in said deed is referred to in paragraph 6 of this stipulation and is annexed hereto as Exhibit 6 as set forth herein.

5. The Defendant, Donald P. Zani, is a resident of 10 Donovan Lane, Natick, Middlesex County, Massachusetts and is the owner of real property lying adjacent to and southerly and westerly from the above described land of the Plaintiffs being shown as land of Dorothy M. Doherty on Exhibit 3.

6. The Defendant, Donald P. Zani, derived title to his land by deed of Donald E. Carlson and Pauline M. Carlson dated August 20, 1968 and recorded with Middlesex South Deeds Book 11561, Page 73, a copy of which is attached as Exhibit 8, Lots A, B & C described in said deed are shown on a plan recorded at Middlesex South Deeds in Book, 11119, Page 164, a copy of which is attached hereto and marked Exhibit 6.

7. The Plaintiffs obtained title to Parcel A referred to in paragraph 2 above by a second deed of Donson Builders, Inc., dated August 27, 1968 and recorded with said deeds in Book 11746, Page 637, a copy of which is attached hereto as Exhibit 9 and which locus is shown on the plan referred to in paragraph 2 above.

8. In the deed of Donson Builders, Inc., to George E. Quigley, et ux, of Lot #3, an easement was created over a portion thereof by reservation contained in said deed of Donson Builders, Inc., to the Plaintiffs as shown on said deed attached hereto.

9. This Stipulation and its attachments may be offered in evidence before a Judge of the Land Court by either the Plaintiff or the Defendant as evidence of any or all matters hereinbefore stipulated."

I find the facts to be as stipulated by the parties with one exception. Parcels A, Band C were not conveyed by Donson Builders, Inc. to Donald E. Carlson et ux as set forth in paragraph four above. Rather the deed therein referred to conveyed to Mr. and Mrs. Carlson, for the benefit of said Parcels A, B and C, the benefit of the utility easement here in question as well as certain other rights, privileges and easements, with which we are not concerned. Parcels A, B and C referred to in said grant were conveyed to the Carlsons by Dorothy M. Doherty et al by Exhibit No. 10, to which reference has hereinbefore been made.

As appears from the stipulation the plaintiffs own Lot 3 in the Ledgewood Estates Subdivision; they also own Parcel A [Note 1] in said subdivision. The latter admittedly is subject to a drainage easement, and no contention is made otherwise by the plaintiffs. [Note 2] The plaintiffs seek only a determination that the ten foot wide easement on Lot 3 has ended.

The language reserving the easement in the first deed to the plaintiffs was inartistic, but the plaintiffs have agreed that it may be deemed a reservation as doubtless was intended by the parties. There was argument at the trial that the language in question was added at the closing by a rider to the deed, but no evidence was offered as to the background of this provision or the language of the purchase and sale agreement, if any, relative thereto. In any event the plaintiffs accepted the deed in which the reservation appeared and are bound by its provisions absent any showing of fraud, misrepresentation or mutual mistake. At the time of the conveyance of Lot 3 to the plaintiffs Donson Builders, Inc. also owned the adjoining Ledgewood Estates Parcel A now owned by the plaintiffs, but it did not then nor thereafter ever acquire title to Parcels A, B and C owned by the defendant Zani. They were acquired by such defendant from Donald E. Carlson and Pauline M. Carlson (Exhibit No.8), Mr. Carlson being the president and treasurer of Donson Builders, Inc. as appears from the instruments in evidence. Although counsel stated in argument that Mr. Carlson was the sole stockholder of the defendant corporation, there was no evidence introduced to substantiate his ownership of the stock in said corporation.

The plaintiffs argue that the utility easement was reserved for the benefit of the Ledgewood Estates Parcel A, the dominant estate, and as appurtenant thereto, that the attempted grant of it to the Carlsons by Exhibit No. 5 was an invalid severance of the easement from the dominant estate and of no effect and that, therefore, the easement in Lot 3 was extinguished by merger when the ownership of the dominant and servient estates was acquired by the plaintiffs. The defendant argues that the easement could not have been intended to benefit Parcel A which is only a strip of land twenty feet in width, that it must have been intended to benefit the land now owned by Zani, that Donald E. Carlson in his individual and corporate capacity created a common scheme of development and that such easement could be reserved to benefit the common scheme.

I agree with the reasoning of neither party. It is clear that the reservation must have been intended by the grantor ultimately to benefit the owner of landlocked parcels C and D (and perhaps B) shown on Exhibit No. 6. It strains the imagination to accept the plaintiffs' argument, and I do not, that it was to be appurtenant to Parcel A in Ledgewood Estates when this lot itself was a twenty foot parcel designed as a drainage easement. It is the law, however, that an easement cannot be reserved for the benefit of land of a party who is a stranger to the deed, Hodgkins v. Bianchini, 323 Mass. 169 , 172 (1948); S. K. Edwards Hall Co. v. Dresser, 168 Mass. 136 , 138 (1897), and Carlson individually must be deemed such a stranger since there is nothing before me which would justify disregarding the corporate existence of Donson. The Supreme Judicial Court recently reviewed the applicable law in Gordon Chemical Co. Inc. v. Aetna Casualty & Surety Co., 358 Mass. 632 .(1971), where it was said:

"Ownership of all the stock in several corporations by one person does not create a single unit or justify a disregard of separate corporations .... Different corporations usually are distinct entities in law. It is only where the corporation is a sham, or is used to perpetrate deception to defeat a public policy, that it can be disregarded." New England Theatres, Inc. v. Olympia Theatres, Inc. 287 Mass. 485 , 493. "The ownership of all the stock and the absolute control of the affairs of a corporation do not make that corporation and the individual owner identical, in the absence of a fraudulent purpose in the organization of the corporation." M. McDonough Corp. v. Connolly, 313 Mass. 62 , 66. Galdi v. Caribbean Sugar Co. 327 Mass. 402 , 407-408. My Bread Baking Co. v. Cumberland Farms, Inc. 353 Mass. 614 .

Id. at 638; cf. Commonwealth v. Beneficial Finance Co., 360 Mass. 188 , 290-94 (1971). See also Westcott Construction Corp. v. Cumberland Construction Co., 3 Mass. App. Ct. 294 (1975). [Note 3]

Rather, I construe the reservation as an easement in gross which exists independently of any parcel of land, may be enjoyed in connection with any estate owned by the grantee and is capable of being assigned or conveyed. See Amidon v. Harris, 113 Mass. 59 , 63-64 (1873); Powell, The Law of Real Property ¶ 419, at 526.4-.11 (1977); 5 Restatement of the Law of Property § 491-92 (1944); Crocker's Notes on Common Forms § 220 and cases cited. There is nothing here to suggest that the parties intended the easement to be personal to Donson Builders, Inc. and not fully assignable. One case analogous to that before the court is American Telephone & Telegraph Co. v. McDonald, 273 Mass. 324 (1930), where the utility easement originally was granted to New England Telephone and Telegraph Company, which in turn granted an easement therein to the plaintiff. The owners of the land across which the easement ran contended the grant to be ineffective. Holding otherwise the Court said:

"We need not discuss whether there can be a fee simple in an easement. There can be no doubt that by the established law of this Commonwealth the owner of a right like this in the land of another can grant to a third person part of his right. Goodrich v. Burbank, 12 Allen 459 [sic]. French v. Morris, 101 Mass. 68 , Amidon v. Harris, supra. J. S. Lang Engineering Co. v. Wilkins Potter Press, 246 Mass. 529 . There is no additional burden imposed by the grantee. Nothing granted to the plaintiff enables it to do anything which the original grantee could not have done. The latter could have hung a toll cable of its own from the cross arms upon its pole. It could have put up guy wires or poles needed for the support of the poles carrying the cable, and such apparatus as was necessary to enable its wires so hung to transmit telephone and telegraph messages. The plaintiff has done no more, and claims no right to do more."

This paragraph is controlling here.

Upon all the evidence I therefore find and rule that the easement reserved in the deed of Lot 3 to the plaintiffs (Exhibit No. 4) created an easement in gross; that such easement was subject to assignment; that it has been validly assigned by Donson Builders, Inc. to Donald E. Carlson et ux and by the Carlsons to the defendant Zani; that such easement has not been extinguished by merger or otherwise and is still in full force and effect.

The plaintiffs' request for "Conclusions of Law" are denied. The defendants' request for ruling no. 6 is granted, and the others denied.

Judgment accordingly.


[Note 1] Parcel A owned by the defendant Zani is a different Parcel A, a subject of some confusion in understanding the facts of this case.

[Note 2] It appears that the utilities serving the defendant's house on his Parcel C in fact are situated in the plaintiffs' Parcel A with only a portion of a manhole cover in the ten foot wide easement reserved for utilities. The defendant is unwilling to relinquish his record easement since he has not as yet built on his Parcels A and B.

[Note 3] Mass. App. Ct. Adv. Sh. (1975) 755.