JACOB YAGJIAN vs. DANIEL F. O'BRIEN and MARY T. O'BRIEN.

This complaint was filed on April 10, 1981 seeking a declaratory judgment under the provisions of G. L. c. 231A, §§1-2, praying that the Court determine that the Plaintiff herein has a right of way from the New State Road Highway southwesterly into a parcel of land owned by the Plaintiff in the Town of Lincoln, all as shown on a plan attached hereto as Appendix A. [Note 1]

The Defendants filed an answer denying that the Plaintiff has such a right of way over Defendants' land, praying for a Judgment to that effect and an injunction to prevent Plaintiff's trying to exercise rights over said claimed way and for reasonable attorneys fees and costs.

After the disposal of various preliminary motions the case was heard on June 21, 1981. A view was taken on June 24, 1982 with attorneys for both parties present and briefs were filed on June 25, 1982. A stenographer was sworn to record and transcribe the testimony in the case. Four witnesses testified and 5 exhibits were introduced into evidence. In addition stipulations as to Defendants' chain of title and Plaintiff's chain of title, together with exhibits attached thereto as A-O were entered. All of the above are incorporated herein in the event of an appeal.

The Court finds the following facts:

1. The titles of both Plaintiff and Defendants came down from a common predecessor in title, Middlesex Institution for Savings, which owned the parcels outlined in blue on Appendix A now owned by the Plaintiff and Lots A1 and A2 owned by the Defendants.

2. On September 19, 1934, Lots A1, A2 and A3 were conveyed by the said Middlesex Bank to Dennis A. and Catherine Sullivan by deed recorded in Book 5863, Page 450 (Exhibit A) [Note 2]

3. On October 14, 1936 the Middlesex Bank conveyed the parcel shown in blue on Appendix A together with other land to Estelle Davis by deed recorded in Book 6073, Page 438. (Exhibit K)

4. On May 16, 1941, the said Dennis A. and Catherine Sullivan conveyed Lots A1, A2, and A3 to Charles E. Davis by deed recorded in Book 6537, Page 295 (Exhibit B). Thus on May 16, 1941, Charles Davis owned Lots A1, A2 and A3 and his wife Estelle Davis owned the lot outlined in blue, all as shown on Appendix A.

5. On September 15, 1941, the said Charles E. Davis conveyed Lots A1, A2 and A3 to Winnifred A. Lyons by a deed recorded in Book 6537, Page 296. (Exhibit C). This deed included the following words: "Reserving the right to myself, my heirs and assigns to pass and repass, to install water, gas and electric light lines over a strip of land 40 feet wide by the side of and parallel to Lula G. Baker." This is the strip of land in question herein and its location has been interlined on Appendix A by the Court.

6. On September 26, 1944, Martin Lyons and Winifred Lyons [Note 3] in her right conveyed Lots A1, A2 and A3 to Gertrude E. Dahlquist, a straw, by a deed recorded in Book 6801, Page 314, (Exhibit E), and the said Dahlquist reconveyed the same to Martin and Winifred Lyons, husband and wife, as tenants by the entirety by deed recorded in Book 6801, Page 315. (Exhibit F). In both of these deeds the conveyance was made "subject to the rights as set forth in deed from Charles E. Davis to Winifred Lyons dated September 15, 1941, recorded with the Middlesex South District Registry of Deeds in Book 6537, Page 296...."

7. Thus, on October 18, 1949, Charles E. Davis was the holder of a reservation of the easement over Lot A1 as shown on Appendix A, but had conveyed out Lots A1, A2 and A3 as set forth above. Estelle Davis was the owner of the parcel outlined in blue on Appendix A. On this date, Charles E. and Estelle Davis conveyed the parcel outlined in blue on Appendix A to Sylvio M. Distefano and Antonina Distefano and Louis Greco and Katherine T. Greco by a deed recorded in Book 7942, Page 459 (Exhibit M). [Note 4] This deed was conveyed "together with the benefit of the forty foot right of way reserved by Charles Davis and Estelle Davis, dated September 15, 1941 and recorded with Middlesex South District Deeds in Book 6537, Page 296."

8. On April 26, 1951, Martin Lyons and Winifred A. Lyons conveyed Lot A2 as shown on Appendix A to John J. and Ann Lyons by deed recorded in Book 7733, Page 332, (Exhibit G), making no mention of any right of way, which of course did not involve this lot in any way.

9. On May 4, 1953, the DiStefanos conveyed the parcel outlined in blue to the plaintiff Yagjian by deed recorded in Book 8068, Page 419, "together with the benefit of the forty foot right of way reserved by Charles Davis and Estelle Davis, dated September 15, 1941 and recorded with Middlesex South District Deeds in Book 6537, Page 296." (Exhibit N).

10. On or about September 29, 1965, Martin Lyons, John Lyons and Ann V. Lyons conveyed Lots A1 and A2 to the Defendants by deed recorded in Book 10951, Page 208, (Exhibit J). This deed made no mention of the premises being subject to any right of way.

There are two issues to be decided herein; whether or not Plaintiff has an easement over the land of the Defendants and, if so, whether or not this easement has been extinguished.

I. Does the Plaintiff have an easement over Lot A1?

An easement may be created by deed, by prescription, by implication and by necessity. In Massachusetts an easement by deed may be either appurtenant or in gross. Baseball Publishing Co. v. Brockton, 302 Mass. 54 (1938). To be appurtenant the easement must serve a particular parcel of land called the "dominant" estate and the land over which the easement lies the "servient" estate. It is well settled that a reservation of an easement in a deed in favor of a stranger to the transaction is void. Hodgkins v. Bianchi, 323 Mass. 169 (1948). Additionally, to create an appurtenant easement in favor of one parcel over a second parcel requires a unity of title to both parcels. An easement in gross is a personal interest in the grantor over land conveyed by him to another over the land so conveyed when the grantor retains no other land to which the easement may be appurtenant. 25 Am. Jur. 2nd Easements & Licenses, § 12.

In the case before the Court the easement first came into being with the conveyance of Charles E. Davis to Winifred Lyons dated September 15, 1941 (Exhibit C) as follows: "Reserving the right to myself, my heirs and assigns to pass and repass, to install water, gas and electric light lines over a strip of land 40 feet wide by the side of and parallel to the land of Lula G. Baker." This is shown on Appendix A as "Way." At the time of its creation Charles E. Davis was the owner of the area shown as Lots A1, A2, and A3 and his wife Estelle Davis was the owner of the parcel outlined in blue, all as shown on Appendix A. Thus, there was no unity of title in the grantor of the easement Charles E. Davis, in 1941, unless it is considered that marriage would provide it. It would appear that the Davises forgot they owned the respective parcels separately for on October 18, 1949 they conveyed the area marked in blue on Appendix A as joint grantors to DiStefano and Greco by deed recorded in Book 7492, Page 459 (Exhibit M). This deed recited that the conveyance was made "Together with the benefit of a forty (40) foot right of way reserved by the said Charles E. Davis in deed to Winifred A. Lyons dated September 15, 1941 and recorded with said Deeds in Book 6537, Page 296" (Exhibit M).

The only impediment to construing the easement as an easement appurtenant is this technical lack of unity of title. Obviously in the light of the conveyance to DiStefano and Greco (Exhibit M) the Davises believed they owned the parcel in blue jointly. It would also appear that it was the intention of Charles E. Davis when the easement was established by the deed to Winifred Lyons in 1941 (Exhibit C) to have this easement benefit the area to the south shown in blue on Appendix A. The Court is of the opinion that the intention of the parties hereto should prevail over a technicality and that this should be construed as an easement appurtenant to the dominant estate shown in blue on Appendix A and the Court so finds and rules.

However, even if the Court is incorrect in its interpretation it would appear that the easement in question would be one in gross in Charles E. Davis. The deed of Charles E. Davis and his wife Estelle to DiStefano and Greco (Exhibit M) which conveyed the area shown in blue and the title to which was in Estelle alone, also included the easement. The easement in gross was in the name of Charles E. Davis and it would have been transferred to DiStefano and Greco by Charles joining his wife as grantor in this deed. See Besson v. Frito, XIII Metcalf 523 (1847). This, perhaps, was the reason Charles E. Davis joined in this deed to DiStefano. Thus, the Court finds and rules that if this were an easement in gross it was conveyed to DiStefano and Greco and thence to the plaintiff by later deed (Exhibit N).

Having decided this, the Court must proceed to the question of whether or not this easement has been terminated. This may be accomlished in various ways. However, only two ways are applicable in the present case; abandonment and prescription.

II. Has the easement been extinguished by abandonment? The Court answers this in the negative.

The Supreme Judicial Court has held in the case of First National Bank of Boston v. Konner, 373 Mass. 463 at 466 (1977) "that the rights of a dominant owner will not be extinguished under the theory of abandonment unless there is nonuser coupled with an intent to abandon. Nonuser alone, no matter how long continued, will not suffice. Delconte v. Szczygiel, 338 Mass. 153 , (1958). It is also necessary to show "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." Willets v. Langhaas, 212 Mass. 573 , 575 (1912).

The evidence showed little use by the predecessor in title to the Plaintiff and even less by the Plaintiff themselves. Mr. DiStefano testified that there were two tire tracks with grass overgrowing them into the area. To make the pathway driveable DiStefano hired a road grader for one half a day to even it. He never asked permission to do this, never met anybody from abutting properties and did not know who owned the abutting properties. This was in 1950. Evidently the area worked on by the grader did not extend to the rear line of Lot A1 as shown on Appendix A but stopped short thereof. It should be noted that the witness, Ann Lyons, who lived in the house on Lot A1 at this time disputes this work on the way. It was suggested that the grader work might well have been done on a parallel way running along the east of Lot A3, as shown on Exhibit 2.

Even less use of the property was made by plaintiff Mr. Yagjian who testified that he walked the property in 1953 prior to purchasing it. At that time he claimed that the road was passable as it appeared as if cars had driven over it. In 1954 he visited the premises with his wife. He testified that somebody, either Mr. Lyons or Mr. Davis asked him if he minded a fence being erected and he agreed when he was assured that the fence across the right of way would be removed if he so desired. He did not visit the property again until 1978 when he went in by foot. He noticed there were ruts in the path, saw no large boulders or rocks. He saw that there were horses fenced in a corral.

The extent of the use of this area by plaintiff and his predecessors was minimal. It may well be that this lack of use would be enough to infer an intent on his part to abandon the easement. The Court does not make this inference of intent here, however, because, as is discussed below the evidence clearly shows that the easement was lost by prescription.

III. Has the easement been lost by prescription? The Court answers this in the affirmative.

In the recent case of Lemieux v. Rip Leather Finishing Corp., 7 Mass. App. Ct. 417 (1979) the Court stated:

Without a finding of an intent to abandon a recorded easement so as to work an extinguishment "there must be an element of adverse use by the owner of the servient estate inconsistent with the continuance of the easement..." (Willets v. Langhaar, supra at 575) or a use "which would be privileged if, and only if, the easement did not exist" and such use is both "adverse as to the owner of the easement and ..., for the period of prescription, continuous and uninterrupted." Restatement of Property §506 (1944). Lemieux, supra at 421.

The period of prescription is of course twenty years. G. L. c. 187 §2. The Court will thus apply these principles to the case at bar.

Most persuasive was the view taken by the Court. Lot Al and the land shown on Appendix A as Lot 6A and 6B are poor, open pasture land with outcroppings of ledge. The northwesterly portion of Lot A1 presently has an oval horse track laid out on it. It shows evidence of extensive bulldozing work. In the track oval are outcroppings of ledge and the area shown as the way on Appendix A likewise show outcroppings of ledge. The track itself takes up a portion of the way adjacent to the northwesterly line. The area of the rear line of Lot A1 is overgrown and passage to it is impeded for an area extending roughly 50' from the rear line by bull-briars, trees and wild undergrowth. To reach the rear line it was necessary on the view to cross onto Lot 6A on said Appendix A and proceed southwesterly past Lot A1 before recrossing a wire fence surrounded by bull-briars onto land of the Plaintiff shown in blue on Appendix A. The rear southwesterly line of Lot A1 could be observed through the under brush from a spot about twenty feet south of this line. A stone wall extended across most of the rear line complemented by a wire fence. At the southwesterly corner of Lot A1 were large boulders overgrown with underbrush. There is no possibility of any automobile with four wheel drive or otherwise being able to cross into the Plaintiff's land today over the southwest corner of Lot A1 without extensive clearing and bulldozing being done. It is possible for an automobile to proceed over the area marked "Way" on Appendix A to the southerly line of Lot A1 thereon. At that point the way merges into Lot A1 and becomes part of the oval horse track with bars impeding entrance into it effectively to the back area. No car or person has passed completely over the area marked "Way" from Rte. 2 to the Plaintiff's land in many years, if ever. To get there today by foot is possible only by clipping briars and undergrowth and then by climbing over the large boulders located at the southwest end of the "Way" as it enters Plaintiff's land.

There was the testimony of Ann Lyons who lived with her husband and with her father and mother-in-law in a house on Lot A2 from 1946 until her in-laws built a house on Lot A3 in 1961. Then Ann Lyons lived with her husband on Lot A2 until the year 1965 when the premises were sold to the defendants O'Brien. From her testimony it appears that the boulders and large rocks seen by the Court on the view at the southwest corner of the way were then present.

The underbrush and trees were then there. There was a wall and a wire fence that extended across the whole area. During this period nobody came in over the way with the exception of a friend who obtained their permission to hunt in the back area now owned by the Plaintiff. The way was effectively blocked off so that while somebody might traverse it on foot by crawling through the wire fence and over the stone wall and large boulders, nobody could get in by car. She saw no attempts made by anybody to bulldoze the road with a grader or otherwise. She observed the area frequently while she lived there; she never allowed her children to play in the area because of the danger the large rocks and undergrowth posed.

To the same effect was the testimony of the Defendant, Mr. O'Brien. After he purchased the property he did extensive work by bulldozer to remove the boulders, some the size of a small automobile, to construct his horse track (he raises and trains trotting horses). He had to hire a second contractor to do the work when the first one found that his equipment was not heavy enough for the job. Some of the boulders were observed in the infield of the track on the view. A stone wall and wire fence enclosed the area without any breaks where the right of way entered Plaintiff's land. Defendant O'Brien rebuilt the fences to keep his horses in, putting in a "2 by 8" wooden rail fence. A gate was installed to get into the track area at the rear of Lot A1 on Appendix A.

Defendant O'Brien had no knowledge of anybody claiming a right of way until two and one half years ago when two young men came into his driveway claiming to own land in the rear. Defendant O'Brien gave them permission to go to the land over the way. Months later he got a phone call setting forth a claim to the right of way and later still a letter from an attorney that culminated in this suit.

The Court finds that the Lyons family from 1946 until the sale of the property to the defendants O'Brien in 1965 and then the Defendants from then until the present have exercised complete, continuous dominion and control over the way to the exclusion of all others. Their use was inconsistent with the existence of an easement. Thus, the Court rules that any rights of Plaintiff in and to this way have been cut off by prescription.

The Plaintiff has filed twenty Requests for Rulings of Law; the Court grants requests numbered 5, 6, 8, 11, 12, 14, 17, 18, and 19 and denies the remainder.

The Defendants have filed thirteen Requests for Findings of Fact; the Court grants requests numbered 1-7, 10, 12, and 13, and denies the remainder. The Defendants have filed ten Requests for Rulings of Law; the Court grants requests numbered 4, 5, 8, 9, and 10, and denies the rest.

Judgment accordingly.

exhibit 1