McNEIL & ASSOCIATES, INC., vs. EINO MANNINEN, ALINE R. MANNINEN and JAMES A. MANNINEN.

The plaintiff brought this action for declaratory judgment seeking a determination of rights and interest in a private way known as "Pall Mall." This cause came on to be heard on April 24, 1987, was argued by counsel and briefs were filed. Twenty-one exhibits were introduced into evidence and are incorporated herein for the purposes of any appeal. The sole issue involved is whether the plaintiff has an easement by implication over Pall Mall so as to use and improve Pall Mall as a means of ingress to and egress from a proposed subdivision and for the installation of drainage and utilities.

In consideration of the foregoing, I find as follows:

1. On May 4, 1946, Home Building Company, Inc. of Walpole ("Home Building") purchased a parcel of land in Walpole by deed recorded in the Norfolk Registry of Deeds, Book 2606, Page 359. [Note 1]

2. On March 7, 1951, Home Building conveyed Lot 39 to Raymond and Hilda Schulze ("Schulze") by deed recorded in Book 3017, Page 361-363 (Exhibit 5). Lot 39 contains 15,059 square feet and is shown on a subdivision plan entitled "Plan of Land in Walpole, Mass." dated October 21, 1949, hereinafter referred to as the "Pilling Plan" recorded at Book 3081, Page 536 (Exhibit 3). The deed describes Lot 39 as bounded southwesterly 25.00 feet by Pall Mall with an easement that "the grantor reserves the right and privilege to itself, its successors and assigns of granting electric light and telephone companies the right to enter the premises at all reasonable times to replace or repair wires or poles now or to be located on the rear of said lot."

3. On October 14, 1952, Home Building conveyed Lot 40 to Schulze by deed recorded in Book 3207, Page 360-361 (Exhibit 6). Lot 40 contains 15,000 square feet and is shown on the above referenced "Pilling Plan." The deed describes Lot 40 as bounded southwesterly 100. 00 feet by Pall Mall with an easement reserved for electric and telephone companies described above.

4. In addition to the Schulze property, Home Building conveyed three other parcels bounded by Pall Mall. Home Building retained a parcel of approximately fifty-five acres at the end of Pall Mall, which land is not referenced on the Pilling Plan.

5. Under both case law and c. 183, §58, the Derelict Fee Statute, the language of the deeds conveyed the fee to the center of Pall Mall to the owners and successors in title of the abutting property. The term "abutting" refers to property with frontage along the length of the way and as such, the plaintiff's property located at the end of Pall Mall does not abut the way. Emery v. Crowley, 371 Mass. 489 , 494 (1976).

6. Pall Mall is shown on the Pilling Plan as being fifty feet wide and extending from Pilgrim Way for two hundred and sixty-two feet to the fifty­five acre tract where it is shown to end. The entire length is paved. At the fifty-five acres, a dirt track extends from Pall Mall for approximately one hundred feet into the tract where it peters off into a series of paths. Home Building on an irregular basis occasionally used the dirt track for access onto the fifty-five acres.

7. On March 15, 1976, the successors in title to Schulze conveyed Lots 39 and 40 to the defendants, Eino Manninen, Aline R. Manninen and James A. Manninen by deed recorded in Book 5206, Page 310 (Exhibit 10). Lots 39 and 40 contain 30,059 square feet and are shown together on the "Pilling Plan." The deed describes Lots 39 and 40 as bounded westerly by Pall Mall, by two lines, 100.00 feet and 25.00 feet. No easements or restrictions are noted on this deed to the defendants.

8. At present, the plaintiff, McNeil & Associates, Inc., is the buyer under a conditional purchase and sale agreement with Home Building to purchase the fifty-five acres of undeveloped land in Walpole for the purpose of developing the proposed "Meadow Ridge Subdivision" ("Subdivision"). This fifty-five acre tract lies at the dead end of Pall Mall.

9. On May 22, 1986, the Walpole Planning Board voted conditional approval of this subdivision subject to three routes of ingress and egress, one of these routes being Pall Mall. [Note 2]

Inasmuch as the parties have agreed that Pall Mall is not a public way, the plaintiff has requested a determination that an easement by implication exists to allow access to and utility rights over Pall Mall. The plaintiff carries the burden of proving the existence, nature and extent of any easement. Foley v. McGonigle, 3 Mass. App. Ct. 746 (1975); Krinsky v. Hoffman, 326 Mass. 683 (1951). The controlling factor in finding an implied easement

must be found in the presumed intention of the parties, to be gathered from the language of the instrument 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); Sorel v. Boisjolie, 330 Mass. 513 , 517 (1953). Implied easements have been recognized over land once held in common ownership when use of one part was made for the benefit of the other up until the time of severance of ownership, and when the use of one part is both reasonable ascertainable and necessary for the enjoyment of the other part. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104 (1933). However, the general principle is that the deed will be construed strongly against the grantor and the law will favor an implied easement for the grantee's benefit. Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951).

Viewing Exhibits 5 and 6 in light of the 1951 and 1952 conveyances from Home Building to Schulze, the defendants' predecessor in interest, makes it evident that no easement by implication was reserved in Pall Mall. In 1951, the fifty-five acre tract, now belonging to the plaintiff, was undeveloped property with several routes available for ingress and egress. Home Building, a sophisticated developer, did reserve an express easement over the Schulze property for electric and telephone companies, yet did not contemplate the need for either a utility or a passage easement over Pall Mall at this time. Witnesses for the plaintiff testified that around 1952, Home Building's use of Pall Mall was infrequent. Correspondingly, there was no evidence introduced to suggest that Schulze had knowledge of Home Building's interest in an easement over Pall Mall. The plaintiff, deriving its interest from the grantor, does not meet its difficult burden of showing the intent of both the grantor, Home Building, and the grantee, Schulze, in the 1951 and 1952 conveyances such as to imply an easement over Pall Mall for passage or utility rights.

The plaintiff argues that c. 187, §5 provides them with the right to install utilities and drainage conduits under and upon the portion of Pall Mall owned by the defendants. However, §5 of c. 187 refers to drainage and utility rights by implication for "owners of real estate abutting a private way who have by deed existing rights of ingress and egress upon such way...." The statute goes on to provide that such use may not interfere with or be inconsistent with the use by others of the private way. It is not necessary to discuss the inconsistent use as the plaintiff does not meet the existing rights by deed which would allow access by implication to the 125 foot portion of Pall Mall owned by the defendants.

On the basis of the foregoing, I rule as follows:

1. The 1951 and 1952 deeds from Home Building conveyed Lots 39 and 40 bounded by Pall Mall to Schulze subject only to an easement for electric and telephone companies. The plaintiff, as successor in title to Home Building, holds these easement rights over Lots 39 and 40 for electric and telephone companies to enter and repair.

2. The passage of G.L. c. 183, §58 in 1972 operated to place fee ownership in the owners of Lots 39 and 40 to the center of Pall Mall for the 125 feet of frontage along the length of the way. The defendants, as successors in title to Lots 39 and 40, presently hold the fee ownership in Pall Mall to the center of the way.

3. The plaintiff has no easement by implication over the portion of Pall Mall owned by the defendants and as such no rights to use such portion of Pall Mall for ingress to or egress from its proposed subdivision or for a utility easement.

Judgment accordingly.