REG 41984

June 2, 1988

Norfolk, ss.



Pursuant to the provisions of G.L. c. 185, ยง1, Saratoga Construction Co., Inc. seeks to register title to a certain parcel of land located on the northerly side of Victory Street at the intersection of Chestnut Street in Franklin. The respondents claim that a portion of their septic system is located on the land the petitioner seeks to register and that they have an easement either by necessity, implication or estoppel for such portions of the system as may encroach on the petitioner's land.

A trial was held on December 18, 1987 at which one witness, Dr. Vishnu Solan, testified and six exhibits including the title abstract were introduced into evidence. These exhibits are incorporated herein for the purposes of any appeal. In addition, I have taken notice of the abstract in Land Court Case No. 40640, in which matter title to the respondents' property was registered.

Upon consideration of the foregoing, I find as follows:

1. The petitioner acquired title to the land it seeks to register from the Town of Franklin by deed dated December 31, 1985, recorded with Norfolk Registry of Deeds in Book 6919, Page 735. [Note 1]

2. The town acquired the property from the estate of Pasquale Carile by a tax taking dated May 15, 1973. The equity of redemption was foreclosed by Tax Lien Case No. 52991 filed February 23, 1977, final decree being entered on February 8, 1979 and duly recorded.

3. The respondents acquired their property April 28, 1986 by deed of Jane M. Gilboy. In evidence thereof, the respondents hold Certificate of Title No. 114263. This certificate makes no mention of any easement over the petitioner's land.

4. Gilboy acquired the property from Marguerite Building Corp. by deed dated January 14, 1984, recorded in Book 5824, Page 50. Marguerite had constructed a house on the property around 1980.

5. Marguerite Building Corp. acquired the property from the Town of Franklin on June 13, 1978. The town acquired the property by a tax taking dated May 15, 1962. The equity of redemption was foreclosed by a final decree dated July 20, 1977 and duly recorded.

6. A portion of the leaching bed to the respondents' septic system is on land of the petitioner, although the extent of the encroachment cannot be determined from the evidence.

The parties agree that the respondents have no express easement for such encroachment nor is there any allegation of such easement by prescription. The requirements of an easement by necessity are well established. Such easements have been recognized when: 1) land was formerly in common ownership; 2) when use of one part of the land was made for the benefit of another part up until the severance of ownership; and 3) when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part, Flax v. Smith, 20 Mass. App. Ct. 149 (1985).

The respondents argue that while the property was in tax title, it was in common ownership even though the right of redemption had not been foreclosed. In such instances, the town disclaims anything other than bare legal title, and title of this nature does not rise to the degree necessary to establish such easements. In any event, the respondents have failed to establish the remaining requirements. The leaching bed was installed sometime in 1980 well after the common ownership had been severed. No such use of the petitioner's property had been made prior to that year. Moreover, there was no credible evidence that use of the petitioner's land is reasonably necessary for the enjoyment of the respondents' property. While the respondents may have encountered some rock ledge in the front portion of their property, there was no evidence presented as to the extent of such ledge throughout the property. Finally, there was no competent evidence of the extent of the encroachment nor of the inability of the respondents to relocate the system elsewhere on their own lot.

The respondents rely on certain letters and documents from the records of the Town of Franklin apparently to establish the location of the septic system and to establish a theory of estoppel against the town.

These records were not accompanied by any testimony, and I am unable to determine from these records any encroachment onto the petitioner's property, nor do I find any estoppel against the town.

I therefore rule that a decree be entered registering and confirming the title of the petitioner to the locus shown as Land Court Plan No. 41984A. Such decree to be subject to such other matters as may appear in the abstract and are not in issue here.

Decree accordingly.


[Note 1] All recorded instruments refefred to herein are at this registry.