BARRY C. BROOKS and RICHARD L. BROOKS, individually and as Trustees of DGC Realty Trust and as Trustees of B & R Realty Trust, and DUNCAN GALVANIZING CORPORATION vs. CAPITOL TRUCK LEASING, INC. and D & E REALTY CO., INC.

Plaintiffs filed this complaint "demanding" that this Court permanently restrain and enjoin the defendants from obstructing a certain easement over land in Everett owned and occupied by the defendants and to determine what damage, if any has been "caused to the aforementioned easement as a result of defendants obstructions, order appropriate relief, and that plaintiff be awarded its reasonable counsel fees and costs."

Defendants answered admitting that plaintiffs do have appurtenant rights in certain rights of way and or easements in land of the defendants but have no rights in the particular way claimed. Further, they deny that they have obstructed the claimed easement by parking and storing trucks thereon; or by erecting a fence thereon; or that plaintiffs' business has been hampered; or that plaintiffs are prevented access along other rights of way over defendants' property. Defendants finally say that they have no duty to clear the easement claimed by plaintiffs since plaintiffs have no rights in said way.

A hearing was held on plaintiffs' application for preliminary injunction October 3, 1979 at which defendants denied that the way in question (the easterly way on Appendix A attached hereto [Note 1] was obstructed. After a view of the locus by the Court on that date which showed that there were indeed obstructions in this easterly "way" a preliminary injunction was issued ordering the defendants to remove these obstructions from the right of way.

A trial was held on October 25, 1979 at which a stenographer was sworn to take and transcribe testimony. Three witnesses testified and 10 exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

Upon all of the evidence the Court finds the facts to be as follows:

1. Title to the parcels owned by both plaintiffs and defendants derives from Lot G as shown on Land Court Plan 1855F. The pertinent portions of this lot are shown on Appendix A. The General Electric Corporation owned a large tract of land in Everett and Medford of which Lot G was a part. This lot was conveyed by it to the General Electric Realty Corporation on August 9, 1962 and then almost immediately reconveyed by the latter to the Parkway Corporation on August 20, 1962. Certificate of Title No. 108665 was issued to the Parkway Corporation.

A. The Defendants' Title.

2. The Parkway Corporation subdivided Lot G on December 3, 1963 by conveying Lot 3 shown on Land Court Plan No. 1855H (and the sketch plan, Appendix A attached hereto) to defendant D and E Realty Co., Inc. by a deed, being Document No. 400531, containing the following provision regarding easements:

"The Grantor herewith grants to the Grantee, in common with the Grantor and its assigns, an easement along a forty (40') foot way as shown on the aforementioned plan, for ingress and egress from Norman Street to the land of the Grantee and the remaining land of the Grantor.

The Grantor reserves for itself and its assigns an easement in common with the Grantee for ingress and egress from Norman Street to the land of the Grantee and the remaining land of the Grantor."

There are two distinct ways to Norman Street, the westerly one marked "Easement" and the easterly one marked "way" shown on the plan 1855H. See also Appendix A.

3. Certificate of Title No. 113227 issued to D and E Realty Co., Inc. contains the following recitation:

"There is appurtenant to the above described land an easement along the forty foot way shown on said plan in common with others entitled thereto, more particularly set forth in Document No. 400531.

The above described land is subject to the reservation as to easement, more particularly set forth in said Document No. 400531." (supra)

This certificate of title refers to "an easement along the forty foot way shown on said plan" which the Court finds to be the westerly way from Norman Street shown as "Easement" on the H plan and on the sketch plan attached as Appendix A. In addition, the certificate recites that the land "is subject to the reservation as to easement in Document No. 400531." Inasmuch as the grantor, Parkway Corporation, had granted the "easement along a forty (40') foot way" in common with the grantor, there was no need for it to reserve a second easement therein. The reservation could only apply over the easterly way shown on the sketch plan, Appendix A, and on the "H" plan as "way" and the Court so finds. The Court rejects the defendants' argument that since this clause omits any explicit reference to the plan it lacks sufficient particularity to create any rights. The preceding clause referred to the "H" plan. The "H" plan itself showed a scond way marked "WAY". It showed that the grantor owned other land beyond that conveyed to defendants. The reservation of an easement over the easterly "WAY" was a natural and obvious thing for a grantor to do.

4. Thus, the defendant D and E Realty Co., Inc. is the owner of the land shown as Lot 3 on Land Court Plan No. 1855H which abuts Lot 12 on the latter's southeasterly bound and Lot 14 on that lot's southeasterly bound, subject to the above mentioned two easements to Norman Street.

5. Defendant Capitol Truck Leasing, Inc. leases the premises shown as Lot 3 from defendant D and E Realty Co., Inc.

B. The Plaintiffs' Title to Lot 12.

6. The Parkway Corporation conveyed Lot 5 which includes Lot 12, shown on Land Court Plan No. 1855I to the Marlin Realty Trust July 2, 1964 by a deed, Document No. 407435 containing the following language:

"Said premises are conveyed together with the right and easement to use, in common with others entitled thereto, all right of ways as shown on said plan, including without limitation that section of a right of way commencing on Norman Street and running N 9-30- 25E along land of Daniel O'Riordan et al, for all purposes for which streets are commonly used in the City of Everett including utilities. The Grantor reserves as appurtenant to its remaining land the right and easement to use, in common with the Grantees, said rights of ways for the purposes set forth above." (Underlining added for emphasis).

The above language refers specifically to the right of way commencing on Norman Street. [Note 2] It also conveyed the premises together with all rights of way shown on the plan. This "I" plan referred to is different from the "H" plan in that in the former plan the westerly way is referred to as "WAY" rather than as "Easement" in the "H" plan.

Certificate of Title No. 114971 was issued to Marlin with the following recitation:

"There is appurtenant to the above described land the right and easement to use in common with others entitled thereto, all rights of way as shown on said plan, for all purposes for which streets and ways are commonly used in the City of Everett more particularly set forth in Document No. 407435. Subject to the Reservation therein contained."

7. The Marlin Realty Trust in turn subdivided Lot 5 by conveying Lot 12 as shown on Land Court Plan 1855L (see also the sketch plan attached hereto) to the Milin Realty Corporation on June 19, 1972 and the Certificate of Title No. 138002 issued to it contains the same recitation referencing Document No. 407455, (the deed to the Marlin Realty Trust) set forth in paragraph 6 herein. Land Court Plan 1855L shows two distinct ways to Norman Street, though neither is marked.

8. The Milin Realty Trust in turn conveyed Lot 12 as shown on the "L" plan and Appendix A to the plaintiffs Barry C. Brooks and Richard L. Brooks as Trustees of the D G C Realty Trust by deed dated January 23, 1978, and being Document No. 566707. Certificate of Title No. 154173, containing the same language with reference to easements as in the Milin certificate, was issued to plaintiffs.

9. Plaintiff Duncan Galvanizing Corporation leased the premises shown as Lot 12 from plaintiffs Brooks, Trustees of D G C Realty Trust.

The Court finds that the plaintiffs Brooks as owners of Lot 12 and their lessees Duncan Galvanizing Corporation have "all rights of ways as shown on said plan" (the "L" plan) including "without limitation" the way along land of Daniel O'Riordan being marked "Easement" on the "H" plan under which defendants D & E Realty Co., Inc. took title. In addition, the Court finds that this certificate gave to the grantee - the plaintiffs Brooks herein - "all rights of ways as shown on said plan." The Court notes the use of the plural of "ways" in the preceding sentence, and concludes that the plaintiffs have a right of way over the easterly way as well as over the westerly way, shown on Appendix A. The plaintiffs though are not given exclusive rights of way over these two ways. "The grantor" - originally the Parkway Corporation - reserved rights of way therein for itself and presumably this and other grantees over these ways.

c. The Plaintiffs' Title to Lot 14.

10. The Parkway Corporation conveyed certain land including the area of Lot 14 shown on Land Court Plan 1855I to Anne R. Crosby on December 22, 1967 by deed being Document No. 451353 containing the following pertinent language:

"Said premises are conveyed subject to and with the benefit of the rights and easements set forth or referred to in Certificate of Title No. 108665, filed with said Land Registration Office in Book 673, Page 115, and together with the right and easement to use in common with others entitled thereto, all right of ways as shown on said plan No. 1855I from said premises to Norman Street, including without limitation that section of a right of way commencing on Norman Street and running N 9-30-25E along land of Daniel O'Riordan et al, for all purposes for which streets are commonly used in the City of Everett, including utilities." (underlineation added).

Land Court Plan 1855"I" shows two separate ways to Norman Street both marked "Way." The Certificate of Title issued to her, Document No. 125798 recites the following:

"There is appurtenant to the above described land the right and easement to use, in common with others entitled therto, all right of ways shown on plan filed in Registration Book 703, Page 116, from said premises to Norman Street, more particularly set forth in Deed Document No. 451353."

11. On November 9, 1973 Anne Crosby conveyed land shown on Land Court Plan 1855M which included Lot 14 to Kathleen Burns. Certificate of Title No. 142574 issued to Burns contains the same recitation with respect to easements as that set forth in Crosby's certificate (See paragraph 9). Land Court Plan 1855"M" as does 1855"I" shows two separate ways to Norman Street both marked "Way."

12. Kathleen Burns in turn conveyed land including Lot 14 shown on Land Court Plan 1855M to plaintiffs Barry C. Brooks and Richard L. Brooks as Trustees of the B & R Realty Trust by a deed dated March 28, 1978. Document No. 568362 and Certificate of Title No. 154487 issued to plaintiffs contain the same provisions with respect to the easements appearing on both Crosby's and Burns' certificates of title (see paragraph 8 and paragraph 9).

13. Thus, the plaintiffs as Trustees of B & R Realty Trust own Lot 14 under Certificate of Title No. 154487 which contains the following fourth paragraph after the description:

"There is appurtenant to the above described land the right and easement to use, in common with others entitled thereto, all rights of ways as shown on plan filed in Registration Book 703, Page 116, from said premises to Norman Street, more particularly set forth in Deed Document No. 451353."

14. Plaintiff Duncan Galvanizing Corporation leases the premises shown as Lot 14 from plaintiffs Brooks, Trustees of B & R Realty Trust.

As we have seen in paragraph 10 herein, Document No. 451353 was the deed to Anne R. Crosby. This gave her and now the plaintiffs all rights of way as shown on the "I" plan from the premises to Norman Street. It includes "without limitation" the right of way from Norman Street along land of O'Riordan. By its very language it does not limit the rights of way to this. Thus, the Court finds that the plaintiffs as Trustees of B & R Realty Trust and plaintiff Duncan Galvanizing Corporation as its lessee have rights over both easterly and westerly ways to Norman Street, as shown on Appendix A.

It appeared to the Court on its view that the easterly way is surfaced with the same material as and lies at the same level as the area of Lot 3 between Building No. 3 and Norman Street. The entire "way" is rutted and potholed with a gravel surface that has had oil applied to it at times in the past. It is obvious that for quite some time the way has had little maintenance. There was testimony that repair of the way would cost $8,900.00 but the Court finds that if such a sum were expended the result would be a wholly resurfaced and significantly improved way completely different from the normal state of the way. While presumably trailer trucks owned or controlled by one or more of the defendants may have caused the deterioration of the road there is insufficient evidence to warrant a finding that it was any particular action or inaction of defendants which caused the easement's distressed condition. Moreover there was no evidence introduced as to the cost of returning the way to its normal state. Consequently, the Court will make no determination as to damages.

In summation, the Court rules that plaintiffs have an easement in common with others entitled thereto over both the westerly and easterly ways shown on Appendix A attached hereto for ingress and egress from Norman Street. The defendants are hereby permanently restrained and enjoined from obstructing said easements in any way. Plaintiffs are allowed only those counsel fees allowable as statutory taxable costs. Mass. G. L. c. 261, § 23.

Judgment accordingly.

exhibit 1