MICHAEL HARRISON and ANDREA HARRISON vs. TODD KIERSTEAD, PAMELA KIERSTEAD and NORTHEASTERN MORTGAGE COMPANY, INC. vs. WILLIAM H. DAVIS and JOYCE A. DAVIS.

By complaint filed on December 14, 1987, amended on March 18, 1988, the Plaintiffs, Michael and Andrea Harrison ("Harrisons"), seek a declaration that certain property owned by the Defendants and Third-Party Plaintiffs, Todd and Pamela Kierstead ("Kiersteads"), located at 147 Locust Street in Holliston, Massachusetts, is burdened by an easement for a water line and concrete steps in favor of the Harrisons' property located at 153 Locust Street in Holliston.

The Kiersteads filed an answer and counterclaim in this action on January 12, 1988, seeking therein the following relief: 1) an order permanently restraining and enjoining the Harrisons from using or attempting to use the aforesaid stairs or water line; 2) an order requiring the Harrisons to remove the stairs and water line from the Kierstead property and to restore the premises to their naturally improved condition; and 3) an award of damages. At this time, the Kiersteads also filed a motion to dismiss the Harrisons' complaint. This motion was denied on March 9, 1988. Thereafter, on April 15, 1988, the Kiersteads filed a third-party complaint [Note 1] against their predecessors in title, William H. and Joyce A. Davis ("Davises"), seeking indemnification from the Davises in the event judgment should enter in favor of the Harrisons, such relief being requested on the theory that the Davises intentionally misled and deceived.the Kiersteads in failing to disclose the existence of the subject water line prior to the sale of their property.

A trial was held in the Land Court on January 18, 1989, at which time a stenographer was appointed to record and transcribe the testimony. Eleven witnesses testified and fifteen exhibits were accepted into evidence. All exhibits are incorporated herein by reference for purposes of any appeal. The Court, in the presence of counsel, viewed the subject premises on January 25, 1989.

On all of the evidence, I find the following facts:

1. The Harrisons acquired title to 153 Locust Street in July of 1983; the Kiersteads acquired title to 147 Locust Stret in May of 1987.

2. As shown on a plan entitled "Plan of Land Creating a Water Easement & a Stairway Easement Over Lot 6", dated January 11, 1989 (Exhibit No. 3), and an earlier plan entitled "Plan of Land in Holliston, Mass.", dated November 26, 1960, recorded at the end of Book 9973 in the Middlesex South District Registry of Deeds ("1960 Subdivision Plan") (Exhibit No. 2C), the Harrisons' property appears as Lot No. 7 and the Kiersteads' property appears as Lot No. 6. Lot No. 7 lies northwesterly of Lot No. 6.

3. The Harrisons' property is accessible by way of either a paved driveway leading upward from Locust Street to the westerly side of the Harrison house or by some twenty-four (24) concrete steps extending from the lower portion of said driveway to the front porch of the house. The paved driveway serves as the Harrisons' primary means of access to their house, such use of the concrete steps being limited to the winter months. The composition of that area lying between the lower portion of the Harrisons' driveway and house is essentially rocky terrain (See Exhibit Nos. 4A, 4B and 4C). I note, however, that the record is devoid of evidence indicating that such terrain constitutes an insurmountable obstacle in the relocation of the subject water pipe.

4. From approximately 1938 to 1962, the Harrison and Kierstead parcels comprised a portion of a large tract of land ("Harbachuck Land") owned by Lucas J. and Edith C. Harbachuck and their successors in title (See Exhibit Nos. lA, lC, 2A and 2B). The Harbachuck Land is shown on a plan entitled "Plan of Land in Holliston, Mass.", dated May 7, 1938, recorded at Book 6206, Page 272 in the Middlesex South Registry of Deeds (Exhibit No. lB). In 1962, the Harbachuck Land was subdivided, thereby resulting in the creation of the Harrison and Kierstead lots. This subdivision is shown on the aforesaid 1960 Subdivision Plan.

5. Since at least 1951, the water needs of what is now the Harrison property have been served by a water line buried some five to seven feet below the surface of the Kiersteads' property. There is no mention, however, of either the water line or concrete stairs, nor of any easements related thereto, on record, nor is there credible evidence in the record to indicate that the Kiersteads or Davises ever received actual notice of the water line prior to 1986.

6. As a consequence of the subdivision of the Harbachuck Land, a portion of the water line servicing the Harrison property runs beneath the Kiersteads' land, and part of the concrete staircase leading to the Harrison property lies on the Kiersteads' land as well. [Note 2] The Harrisons became aware of the water line in October of 1986 when, in the course of maintenance work being performed on the Davises' septic system and leaching field, the line to the Harrison property was punctured and service thereto interrupted for approximately one day.

7. In the early part of 1987, the Davises' property at 147 Locust Street was listed for sale with DeWolfe Realtors of Hopkinton, Massachusetts ("DeWolfe"). Upon learning of such listing, Andrea Harrison sent a letter, dated February 20, 1987 (Exhibit No. 5), to Karen Varney ("Varney), a realtor at DeWolfe. The purpose of this letter was to notify Varney of the unresolved matter between the Harrisons and Davises concerning the subject water line.

8. On February 28, 1987, William Davis wrote to Mrs. Harrison (Exhibit No. 6) in response to her letter of February 20, 1987. In this letter, Mr. Davis informed Mrs. Harrison that, pursuant to the advice of counsel he lacked any legal obligation to relocate the water line and that the new owners of his property would be so informed.

9. On or about February 28, 1987, one Mary Lou Pennett ("Pennett"), also a realtor for DeWolfe, showed the Kiersteads the Davises' property. Subsequently, the Kiersteads submitted two bids on the house, their latter bid being accepted by the Davises on or about March 1, 1989. Shortly thereafter, a Purchase and Sales Agreement ("Agreement") (Exhibit No. 9) was entered into between the Davises and Kiersteads. The Agreement was silent as to any controversy regarding the Harrisons' water line. Additionally, despite their knowledge of the controversy regarding the location of the Harrisons' water line, neither the Davises nor the realtors ever apprised the Kiersteads of this situation prior to the closing.

The Harrisons herein request a determination that an easement by implication exists for the subject water line and concrete stairs. Accordingly, they carry the burden of proving the nature and extent of such easement. Swenson v. Marino, 306 Mass. 582 , 583 (1940); Goldstein v. Beal, 317 Mass. 750 , 757 (1945); Foley v. McGonigle, 3 Mass. App. Ct. 746 (1975); Taylor v. Lassell, 4 Mass. App. Ct. 539 , 541 (1976). Implied easements do not arise out of necessity alone. Joyce v. Devaney, 322 Mass. 544 , 549 (1948). Their origin must be found in the presumed intention of the parties, to be gathered from the language of pertinent instruments when read in 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); Perodeau v. O'Connor, 336 Mass. 472 , 474 (1958); Labounty v. Vickers, 352 Mass. 337 , 344 (1967). Implied easements have been found to exist where a common owner of two adjacent parcels of land makes an open, obvious and continuous use of one parcel for the benefit of the other and thereafter, there is a severance of title by an instrument which is silent as to any easement to exercise such use, so long as the parties so intend and the continued use of the easement is reasonably necessary to the use and enjoyment of the premises. See Mt. Holyoke Realty Corporation v. Holyoke Realty Corporation, 284 Mass. 100 , 104 (1933); Cummings v. Franco, 335 Mass. 639 , 642-644 (1957); Perodeau at 474.

In the instant matter, the Harrison and Kierstead parcels were held under common ownership until approximately 1962. The evidence further reveals that, from at least 1938 onward, the pertinent instruments of conveyance have been silent with respect to the water line and concrete steps at issue herein, and to any easements related thereto. All of the parties in the subject chain of title have thus lacked constructive notice of any such easements. Further, I find the record to substantiate a determination that, until October of 1986, the Harrisons and Davises lacked actual knowledge of the location of the underground water line. I thus find accordingly that the existence of the water line has not been open and obvious for purposes of establishing an implied easement. See VanSzyman v. Town of Auburn, 345 Mass. 444 , 453 (1963). In addition, I find that despite the absolute necessity of having continuous water service to one's home, the present location of the water line is not reasonably necessary to the Harrisons' use and enjoyment of Lot No. 7, although it may well be convenient. To the contrary, the Harrisons may, although at some expense to them, relocate said line beneath their own property, such related cost being insufficient, in and of itself, to establish the requisite element of "reasonable necessity". See Buss v. Dyer, 125 Mass. 287 (1878).

Inasmuch as the concrete steps leading to the Harrisons' house are not necessary for access thereto, and considering the nature and infrequency of their use, I find the evidence insufficient to support the establishment of such an easement either by implication or by prescription.

In consideration of the foregoing, I find and rule that the Plaintiff Harrisons have failed to sustain their burden of proving that the Defendant Kiersteads' property has become servient to an easement for the water line and concrete steps in favor of the Harrisons' property, and rule accordingly that the Harrisons are hereby given six (6) months from the date of the entry of a final judgment herein to remove such water line from the Kiersteads' land and to restore such land to its naturally improved condition. I further find and rule that the Harrisons are hereby enjoined from using the concrete steps as they presently exist on the Kierstead property. In so ruling, I note that the Defendant Kiersteads' third-party complaint against the Davises is rendered moot and must be and hereby is dismissed.

All parties have submitted requests for findings of fact which I have considered. Certain of these requests have been incorporated in the findings which I have made herein. I have taken no action with respect to the remainder, as I have rendered independent findings as to those facts which I deem most pertinent hereto.

Judgment accordingly.