BRIAN C. DONNELLY and LAURIE M. DONNELLY vs. FABRIZIO ALVAREZ-deTOLEDO.

The plaintiffs and the defendant respectively own adjoining portions of what formerly had been an extensive estate in Manchester in the County of Essex. Each of them claims not under the original owner of the estate, but under the same successors in title as their common grantors. The principal causes for contention between them, the condition of the septic system situated on the paintiffs' property but serving the defendant's home and the condition of an underground oil tank on the defendant's property have been resolved and are no longer an issue. Resolved also is Fabrizio Alvarez-deToledo v. Board of Health of Manchester, Essex Superior Court Civil Action No. 88-1323 on which I was to sit by designation but which was dismissed with prejudice on January 30, 1989 pursuant to a stipulation of dismissal.

The parties herein were unable, however, to reach agreement on the two narrow issues which remain in contention, and accordingly there was a trial in the Land Court on May 8 and May 9, 1989 at which a stenographer was appointed to record and transcribe the testimony. The witnesses at the trial were the plaintiff Laurie M. Donnelly, the defendant Fabrizio Alvarez de Toledo, Clayton A. Morin, a registered professional engineer Linda Wimer, Health Agent for the Essex, Manchester Regional Health District, Helen Bethell, Chairman of the Conservation Commission of the Town of Manchester and Vaclav Talacko, a civil engineer. Twenty-one exhibits were introduced into evidence as well as two chalks prepared to assist the Court which are incorporated herein for the purpose of any appeal.

At the time of the trial only two issues remained in dispute, and it is unfortunate that the parties despite the best efforts of their counsel were unable to resolve their difference by agreement. The major question in contention concerned a disagreement as to whether there was appurtenant to the land of the defendant an easement by grant, prescription or implication to maintain, repair and replace the existing subsurface drainage system from the defendant's home onto land of the plaintiffs. The other minor issue concerns the termination of the defendant's existing septic system easement by its own terms since a new septic system has been installed entirely on the defendant's lot. I hold that there is a drainage easement by implication for the benefit of the defendant's land situated on land of the plaintiff. I further hold that the granted septic system easement has ended by its own terms. I reach these conclusions as follows:

1. The defendant and his former wife acquired title to a parcel of land in Manchester shown as Lot C on a plan entitled "Plan of Land in Manchester Property of I.W. and Frances Colburn", dated August 12, 1973 by Essex Survey Service, Inc. and recorded with Essex South District Registry of Deeds (to which registry all recording references herein refer) as Plan No. 563 of 1973 (Exhibit No. 7) from I.W. Colburn, et al dated September 6, 1977 and recorded in Book 6392, Page 82 (Exhibit No. 10). On Lot C is situated the former residence of Philip Dexter constructed in 1907. The grantors retained title to some or all of the remaining Dexter land including that subsequently conveyed to the plaintiff.

2. The deed granted and reserved certain rights of way not here in issue and also granted an appurtenant right "to use, repair and maintain the utilities presently servicing Lot C" with provisions for their relocation. The latter included relocation rights in a grant from Philip Dexter to the Town of Manchester dated November 6, 1908 and recorded in Book 1943, Page 246 which relate to water pipe easements (Exhibit No. 21).

3. After the deed had been executed to the defendant, the grantors and the grantees became aware that the septic system serving Lot C was situated on land retained by the Colburns. Accordingly the Colburns and the Alvarez-deToledos entered into an agreement dated September 30, 1977 and recorded in Book 6601, Page 387 (Exhibit No. 9) granting to the latter the right to construct, reconstruct, replace, use, operate, maintain, repair and remove a subsurface sewage disposal system in a certain designated portion of the grantors' land.

4. Among other provisions the agreement provided that the rights and easements set forth therein "shall continue in full force and effect until such time as other means of sewage disposal is constructed".

5. Another means of sewage disposal now has been constructed on the defendants Lot C, and an underground fuel storage tank of which the plaintiffs complain has been replaced by a fuel storage tank in the defendant's home.

6. The plaintiffs' home originally was constructed as a pool house for the Dexter estate in 1909. It ultimately was renovated and Lot D on which it is located conveyed by the Colburn to the plaintiffs by deed dated October 16, 1985 and recorded in Book 7962, Page 132. (Exhibit No. 1).

7. Problems created by the septic system caused a deterioration of the relationship between the plaintiffs and the defendant.

8. The defendant's home is at a higher elevation than the plaintiffs, and areas of the parcel were filled during construction. There is a considerable area of ledge as well as a high water table. The drainage system at least as it was contemplated in 1909 is shown on Chalk B, a print entitled "Block Plan of House Stable and Garage for Philip Dexter, Esq. Manchester by the Sea". It collects water from the roof drains and water from a catch basin in the courtyard. Without the drains the flow of groundwater would lead to saturation of the driveway, and of the vicinity of the new septic tanks. Removal of the drainage system would adversely impact the new septic system since the new septic system was designed with the present water table in mind. The eight inch drain line serves an independent function from the former septic system. It appears that the man made system follows the natural drainage pattern of the area. Absent the drainage system the water would collect and possibly kill off all of the trees and undermine the existing driveway. Manholes were located east of the house at an observable grade, a catch basin north of the driveway and two manholes to the south of the septic tanks.

The drain line begins at the border of the properties at the edge of the courtyard and then proceeds from the east to the west to another manhole cover, which was under a stone wall. From there it proceeds to the north crossing the driveway and entering a grille manhole just north of the driveway. From that point it proceeds to the two drainage manholes directly to the south of the septic tank covers. It then proceeds near the edge of the easement and then directly to the wetland area. The defendant testified that the drain pipe is located exactly as it is shown on Chalk B, and I so find.

9. The defendant elected to sever the existing connection between the drain pipe and the sewer system, but the Manchester Board of Health reconsidered its approval. The connection still exists; however, there is flow only when there is flow into the septic system. When there is no flow, there is no connection.

10. The lower courtyard is used as a courtyard for the wing of the house which is rented. The tenants reach the courtyard through the right of way, and then enter the wing of the house.

11. The drainage system piping appears to run parallel to the sewer lines for the old septic system. Under present standards a drainage system may not be placed closer than twenty five feet away from a septic system. The drainage system seems to be a "gravity feed" line in that it collects water from the land at a higher elevation and directs it toward the wetlands at the lower elevations. The manhole covers along the pipe are not precast concrete, but such that ground water from the Donnelly property could enter the drainage pipe and be directed toward the wetland area. The flow into the drainage system has been observed to be consistent and continuous; not typical of just flow from a septic system or sewer. The drainage system begins on the easterly side of the defendant's house and proceeds to the northwest, turns at a manhole and follows the existing driveway to the west, then turns, continues towards the north, towards the septic tanks and into two manholes, comes around them to the west and then turns north again and comes into a drain manhole that is northwest of the septic tanks. It is an eight inch line that enters the loosely constructed manhole and then continues on past the edge of the easement. There were two separate clay pipes, one for drainage and one for sewerage, which ran side by side.

12. The defendant's expert had determined during the study for the new septic system and oil tank that there was an alternative course that the drainage could take. The plan was to intersect the drain at the catch basin just north of the driveway, direct it in a westerly direction towards an existing low area, replace the existing manhole with a waterproof one and leave the remainder of the system as it is. It would then lead through a culvert to the plaintiffs' property down grade. Agreement was never reached on this alternative.

13. Mrs. Donnelly did not observe the manhole covers at the time she and her husband purchased the property, and it was not until some time later that she became aware of the drainage system situated on her land. The drainage system is easily apparent, however, and it serves the Donnelly premises as well as those of the defendant.

The minor issue in this litigation is easily resolved. A new septic system has been installed on the land of the defendant, and he no longer makes use of the septic system situated on the plaintiffs' Lot D. Accordingly by its very terms the grant set forth in the 1977 Agreement between the Colburns and the Alvarez-deToledos has ended since it was to continue in effect until another means of sewer disposal was constructed.

That leaves as the only issue to be decided the question as to whether the defendant may maintain, repair and replace the existing drainage system. Lot C has the appurtenant right to use, maintain and repair the utilities servicing it in 1977. In common parlance a utility would be considered service for electricity, telephone and gas, perhaps water but not drainage, and I do not consider that use of the existing drainage facility was encompassed within the phraseology of the Colburns' deed of Lot C. However, there is a legal principle applicable particularly when a large estate is subdivided in which an intent of the parties that an easement by implication be granted may be found. The rule was well stated by Justice Ronan in Jasper v. Worcester Spinning & Finishing Co., 318 Mass. 752 (1945) at page 756 where he wrote:

The owner of a parcel of land may lay out or instal over or in a part of his land a way, water pipe, drain, sewer or other physical arrangement or structure for the benefit of another part of the land, and the use and enjoyment of this quasi easement while there is unity of possession and title in the entire parcel will not create any real or actual easement (citations omitted) but upon a severance of the title in the absence of anything to the contrary in the instrument of conveyance, a conveyance of the dominant estate will carry with it an implied grant of the easement for the benefit of the land conveyed, and a conveyance of the servient estate will create the easement by an implied reservation for the benefit of the land retained, if the language of the instruments of conveyance read in the circumstances attending their execution, including the physical situation and characteristics of the land and the knowledge which the parties had or with which they were chargeable, leads to the conclusion that such an implied easement, by grant or reservation, as the case may be, must have been within the presumed intention of the parties. Atkins v. Bordman, 2 Met . 457, 464. Gorton­ Pew Fisheries Co. v. Tolman, 210 Mass. 402 , 410. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp. 284 Mass. 100 , 105-106.

It is not only necessity that gives rise to the implication of the easement, but it must have been also within the presumed intention of the parties and open and apparent. It is, however, easier to imply it against the grantor who conveys a parcel of land in need of such an easement rather than to imply the reservation of an easement for the benefit of the grantor's remaining land. Dale v. Bedal, 305 Mass. 102 , 103-104. It is well established that the necessity be no more than a reasonable necessity rather than an absolute one. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 287 Mass. 100 , 108 (1934). However, it should also be noted that cases have also held that the creation of express easements in a deed, as occurred in the present case, may negate any intention to create an easement by implication. See Joyce v. Devaney, 322 Mass. 544 (1948). The burden of proving the intent of the parties to create the easement is upon the party asserting it. Oldfield v. Smith, 304 Mass. 590 , 594 (1939).

The express grant of easements in the deed to the defendant and again in the subsequent deed need not negate the implication here. It seems clear from the documentary evidence of the transaction that the owners of the properties failed to communicate to their eminent counsel the situation on the ground that should be memorialized in the deed, and the fact that the deed itself and the subsequent agreement both were incomplete militate in favor of the implication.

Chief Justice Shaw in a dicta in Johnson v. Jordan, 43 Mass. (2 Met.) 234 (1841) described a situation very similar to the present action. In Johnson a drain ran from the defendant Jordan's house across the property of the plaintiff to the sewer in Ridgway Lane. Both properties had previously been under common ownership, and the drain existed before the severance of the estates. The owner had severed the estate by simultaneous conveyance of its two halves. In that case the court found that the grant of easement had to be expressly stated in the deeds to exist. Johnson at 242. However the court distinguished the situation where the dominant estate was conveyed by the previous owner before the servient estate was conveyed. Johnson at 241. In dicta at Page 240, Chief Justice Shaw writing for the court stated

. . . if a man, owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee: Whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that as the right of drainage was not reserved in terms, when it naturally would be, if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his own favor and against the grantor, might reasonably claim to hold his granted estate free of the encumbrance. Leonard v. White, 7 Mass. 8 . Grant v. Chase, 17 Mass. 443 .

Johnson at 240-241. Cf. Carbrey v. Willis 89 Mass. (7 Allen) 364, 368 (1863).

In the present case the drain line was installed before the severance of the estate; the dominant estate was conveyed while the servient estate remained in the possession of the prior common owner; the drainage easement is reasonably necessary to enjoy the property as it was used at time of conveyance; the drain line is open and apparent; the manholes and catch basins were easily observed.

On all the evidence I therefore find and rule that there is an easement by implication appurtenant to Lot C to use, maintain, repair and replace the existing pipes, manhole covers and other accoutrements thereto to drain surface waters from Lot C onto and across Lot D.

Judgment accordingly.