HALE ENGINEERING, INC. v. LEONARD J. LOWE and OLGA PARADISI [Note 1], CHRISTINE FARRAR.

Petitioner filed this petition seeking to have the Court order the cancellation of certain memoranda of encumbrances. upon its Certificate of Title No. 43870. Respondents Lowe and Dufault filed an answer objecting to the cancellation from petitioner's certificate of any of said memoranda that might affect their rights in and over petitioner's land as set forth in respondents' own Certificate of Title No. 33810. Respondent Christine Farrar filed an answer but before trial joined the petitioner in a stipulation to be incorporated in any decree and took no further part in these proceedings.

Trial was held on the matter May 25, 1979 at which time a stenographer was sworn to take and transcribe testimony. Two witnesses testified and nine exhibits in all were entered into evidence, all of which are incorporated herein for the purpose of any appeal.

A view of the land described in petitioner's Certificate of Title No. 43870 (locus) was taken on July 10, 1979 with principal and attorneys for both sides present.

The Court finds the following facts:

1. Petitioner is the owner of land described in Transfer Certificate of Title No. 43870 dated January 18, 1974 (Exhibit 6) and shown as Lot 1 and Lots A1, D and E on Land Court Plan 15956D (hereinafter locus) (Exhibit 5).

2. Petitioner's Certificate of Title No. 43870 is subject to several encumbrances, among which are the following:

(a) The above described land is subject to the easement and is subject to and has the benefit of the provisions referred to in Certificate of Title No. 12926, so far as in force and applicable.

(b) The above described land is subject to an agreement as described in deed from Amdur Leather Company, Inc. to Walter F. Murphy, dated April 12, 1940, and filed as Document #38765 in the Southern Essex Registry of Deeds.

(c) So much of said Lot 1 as is included within the limits of Way "Y" is subject to the right to pass and repass for all purposes for which a way may be used in favor of said Lot C, as described in deed from the Danvers Wrecking Co. to Bernard W. Judge, dated May 15, 1946, and filed as Document #49409 in said Registry.

(d) Said Lot 1 is subject to the right to draw water from the wells and reservoirs now in or upon said land in favor of said Lot C as described in said deed Document #49409.

(e) So much of said Lot 1 as is included within the limits of the area marked "Settling Tanks" is subject to the right to use, in common with others entitled thereto, for the disposal of sewage and waste, said Settling Tanks in favor of said Lot C as described in said deed Document #49409.

(f) So much of said lot 1 as is included within the limits of the area marked "Easement for Pipe" is subject to the right to lay and maintain a sewer pipe from the factory building standing on said Lot C in favor of said lot C as described in said deed Document #49409.

(g) So much of said lot A-1 as is included within the limits of the area, approximately twenty (20) feet wide, marked "Easement" on said plan, is subject to the right to use in favor of said lot C as described in deed from the Danvers Wrecking Co. to Bernard W. Judge, dated May 15, 1946, and filed as Document #49409 in said Registry.

(h) Said Lot E is subject to the right of said lot C to use the building shown on lot E on said plan, and also the right to use said Lot E for parking purposes, in common with others entitled thereto, as described in said deed Document #49409.

(i) So much of said lot A-1 as is included within the limits of the area marked "Easement" ten (10) feet wide, is subject to a right of way in favor of a portion of said lot B-1, as set forth in deed from the Danvers Wrecking Co. to William Kossowan et ux, dated September 18, 1946, and filed as Document #50497 in said Registry, and subject to conditions as recited in said document.

3. Respondents, Lowe and Paradisi are the owners of land described in Transfer Certificate of Title No. 38810 dated April 3, 1964 (Exhibit 8) shown as Lot C on Land court Plan 15956B (Exhibit 2) and also on Exhibit 5. Lot C contains approximately 8,000 square feet and is almost entirely covered by a two-story wooden factory type building.

4. Certificate of Title No. 38810 of said respondents Lowe and Paradisi sets forth the following appurtenant rights to which petitioner's land is subject:

"(a) The right to pass and repass for all purposes for which a way may be used, over said strip of land marked Way "Y", extending from Liberty Street on the southeast to land of Charles H. Kerans on the southwest, as described in deed from the Danvers Wrecking Co. to Bernard W. Judge, dated May 15, 1946, and filed as Document #49409 in said Registry.

(b) A right of way over the continuation of said Way "Y" to High Street, as described in deed from Joseph W. Kerans to Napoleon Blais, dated July 25, 1904, duly recorded in Book 1748, Page 147, the area of said right of way being located as shown on plan filed with Certificate of Title #11196 in said Registry.

(c) The right to use so much of said Lot A as is included within the limits of the space marked Easement on said plan, as described in said deed Document #49409.

(d) The right to use the building shown on Lot E on said plan, and also the right to use said Lot E for parking purposes, in common with others entitled thereto, as described in said deed Document #49409.

(e) The perpetual right to draw water from the wells and reservoirs now in or upon said land and the unlettered remainder of the land, shown on said plan, as described in said deed Document #49409.

(f) The right to use, in common with others entitled thereto, for the disposal of sewage and waste, the settling tanks now located in the northerly corner of said unlettered remainder of land, as shown on said plan, and described in said deed Document #49409.

(g) An easement over said unlettered remainder of land, to lay and maintain a sewer pipe from the factory building standing on said above described land, and shown on said plan as "Easement for Pipe," as described in said deed Document #49409.

The above described land is subject to the easement, and is subject to and has the benefit of the provisions, referred to in said Certificate of Title No. 12926, so far as in force and applicable."

5. Respondent Farrar withdrew her objection to the petitioner's petition to amend its certificate of title upon the stipulation that the Court's decree shall note that petitioner's certificate of title is subject to so much of the following provisions set forth in Certificate of Title No. 12926 as is now in force and applicable:

"A portion of the above described land lying between land marked 'Gilbert E. Farrar' on said plan and Porter's River is subject to sewer easements reserved in a deed given by Minnie E. Farrar et al to Arthur J. Way, Incorporated, dated May 15, 1911, duly recorded in Book 2082, Page 82, so far as in force and applicable at date of original decree."

6. That portion of petitioner's land shown as Lot 1 on Land Court plan No. 15926D, (Exhibit 5) was previously owned under Certificate of Title No. 11196, by the Amdur Leather Co., Inc., who operated a leather tanning business on the premises from about 1910 to the 1930's.

7. Still remaining on Lot 1 and observed at the time of the view are settling tanks, reservoirs, and sewerage pipes all of which had been used in connection with the leather tanning process but which have not been used in quite some time. All that remains of the settling tanks are the remains of their cement foundations which are antiquated, cracked and would appear to be very difficult if even possible to restore. These are located at the northwest corner of Lot 1 by Porter's River. The reservoirs, one located about two thirds of the distance between respondents' building on Lot C and the settling tanks and the other at the southwestern corner of Lot 1, have lately collected only stagnant water and debris. The sewerage pipe running from midway of Lot C in a jagged course to the settling tanks by the river is in disrepair and is disconnected. Lot 1 has been connected with the municipal water supply and the municipal sewerage system since at least 1964.

8. Lot E has not been used for parking purposes recently, if it ever was. It is overgrown with brush and bushes and strewn with refuse. Obviously, no one has contributed toward the care and maintenance of the area as a parking lot.

Petitioner seeks to cancel the encumbrances described in paragraphs 2(a), (b), (d), (e), (f), and (h). Respondents object to the cancellation of all of said encumbrances, except for that set forth in paragraph 2(b), claiming that the rest of the encumbrances are set forth as appurtenant rights to their certificate of title.

First as to the encumbrance set forth in paragraph 2(b) which subjects the locus to certain provisions of an agreement, Document No. 38765 dated April 12, 1940 by which Walter F. Murphy "expressly agrees" with the Amdur Leather Co., or its nominees, "to remove said [sic] articles after the delivery of this deed:

Metal water tower with uprights and guy wires or cables supporting same;

Electrical equipment located in the engine room;

Panel Boards and cables in the same engine room, provided it is ascertained that said boards and cables have heretofor been sold;

Also, Ray oil burner and plates."

Now, more than thirty years after the delivery of the deed from Amdur Leather Co, to Walter F. Murphy, the Court finds that none of the items named in the above mentioned agreement are upon the locus. No objection to the cancellation of this encumbrance has been raised.

With respect to the cancellation of the memorandum of encumbrance described in paragraph 2b above the Court rules that, where no one has come forward to object to its cancellation and where its provisions appear to have become obsolete and hence inapplicable to petitioner's land, the Court may order the cancellation of said encumbrance and now so orders.

The respondents Lowe and Paradisi claim that the encumbrances set forth in paragraphs 2(a), (d), (e), (f), and (h) are for the benefit of Lot C owned by them and are appurtenant rights to their certificate of title No, 38810. They object to the cancellation of these encumbrances. Though it is apparent that respondents have not made use of certain of the easements in a long time, their mere non-use does not constitute an abandonment of the easements. McCartin Leisure Industries v. Evert Baker, 1978 Mass. Adv. Sh. 2141, 2147-2148; Willets v. Langhaan, 212 Mass. 573 (1912). Nor does the economic unfeasibi1ity of reviving the purpose for which the easements were granted (a tannery) necessarily eliminate respondents' interest. First National Bank v. Konner, 1977 Adv. Sh. 2095 at 2102. There was evidence introduced which indicated an intention on the part of respondents to make use of the easements in question. See Parlente v. Brooks, 363 Mass. 879 (1973). In fact, there was evidence introduced to show respondents' insistence upon enforcing their rights in petitioner's land. See their letter of June 6, 1974 to petitioner, (Exhibit 7).

The Court rules that since these rights of respondents over petitioner's land have not been abandoned, they still exist. Since the respondents have not given their written consent to the cancellation of these encumbrances (See G. L. c. 185, Section 114) the Court is without authority to order their cancellation as such cancellation might impair the title or other interests of the respondents who are purchasers holding a certificate (No. 33810) for value in good faith.

Thus, the Court orders the cancellation from petitioner's certificate of title no. 43870 only of the following memorandum of encumbrance; item 2(b) as follows:

1) The above described land is subject to an agreement as described in deed from Amdur Leather Company, Inc. to Walter F. Murphy, dated April 12, 1940, and filed as Document #38765 in said Registry.

Decree accordingly.