NEW ENGLAND CONTINENTAL MEDIA, INC. vs. TOWN OF MILTON.

The plaintiff, New England Continental Media, Inc., brought this action by its complaint entitled "Complaint In An Action To Remove Cloud From Title And To Establish Right Of Way/Easement", seeking a declaration that it has an easement over certain conservation land (the locus) owned by the Town of Milton (the Town). The defendant Town seeks a declaration establishing that it is the "sole owner" of the locus, and that the locus is not subject to the plaintiff's alleged easement.

The plaintiff is, in essence, attempting to invalidate the taking of an adjacent parcel of land, over which a predecessor in interest held the dominant estate for a recorded access easement, sixteen years after the taking occurred. The locus, in Milton, is a parcel of land abutting the plaintiff's radio station in Quincy, and was the sole means of record access to the radio station. The plaintiff is the successor in interest to rights in a recorded easement over the locus; however, prior to the date of the instrument purporting to convey the easement, the Town took the locus by eminent domain. The issue to be resolved is whether the locus is presently burdened by an easement with the plaintiff holding the dominant estate.

Three days of trial were held at which a stenographer was sworn to transcribe the testimony. Eleven exhibits were accepted into evidence and the parties submitted a stipulation as to certain facts relating to use of the locus and to the record title of both parties. Based on the foregoing, I find the facts to be as follows:

1. The plaintiff is the fee owner of a parcel of land situated in Quincy, Norfolk County, which abuts Milton and has a mailing address of 100 Riverside Avenue, Milton, by deed dated April 28, 1978, recorded at Book 5457, Page 49 [Note 1] (the plaintiff's land). The plaintiff owns and operates a radio station at that location.

2. The deed referred to in paragraph one contains the following provision:

The above described premises are conveyed subject to and with the benefit of rights, easements, and restrictions of record, insofar as now in force and applicable.

3. The provision quoted in paragraph two occurs in all deeds of the plaintiff's chain of title back to and including a deed of The Yankee Network, Inc. to The Winter Street Corporation, dated March 11, 1944, and recorded at Book 2583, Page 5, and the deed of that land into The Yankee Network, Inc. from Frank A. Day and Walter J. Meadows, Surviving Trustees of the Neponset River Trust, et al, dated May 25, 1943, recorded at Book 2441, Page 437, contained the following words:

together with a right in common with others entitled thereto and to the land over which said way extends to pass and repass over a strip of land forty feet wide as shown on said plan over other land of said Trustees, said Hamlins and said Russell, running from the easterly end of Riverside Avenue in Milton, to the premises herein described, for convenient egress and ingress, but the grantee shall have the right to relocate said way, if necessary, the relocated way to be as near the present railroad location as reasonably practicable, and reserving for the benefit of others and remaining land of the grantors lying easterly and northerly and westerly of the land herein conveyed a similar right of passing and repassing for convenient egress and ingress in common with others entitled thereto over a strip of land forty feet wide as shown on said plan extending from the way hereinbefore described to said other and remaining land of the grantors across the land herein conveyed, but the grantee shall have the right to relocate said way, if necessary, the relocated way to be as near the present railroad location as reasonably practicable, both of said ways to be kept open for the mutual benefit of the grantors and grantee, their heirs successors and assigns (at p. 438).

The plan referred to in the quoted language is a plan of land in Montclair, Quincy, Massachusetts, May 5, 1943, Ernest W. Branch, Inc., Civil Engineers, recorded at Book 2441, Page 437 as plan 130 of 1943.

4. Frank A. Day and Walter J. Meadows, the Surviving Trustees of the Neponset River Trust, acquired their title to a part of the plaintiff's property by deed from Mary E. Day, et al, dated August 9, 1938, recorded at Book 2195, Page 462, and this deed to the Trustees also included property easterly and northerly and westerly of the plaintiff's property.

5. The defendant, Town of Milton (the Town), took by eminent domain by vote of October 28, 1965, recorded November 3, 1965 at Book 4305, Page 126, a parcel of land abutting westerly of the plaintiff's land (the locus). That land was taken for conservation purposes. The locus was the servient estate for the aforementioned easement. At the time of the exercise of eminent domain, the fee interest in the locus was of record owned by Joseph N. Verrochi, et al, Surviving Trustees of the Verrochi Realty Trust, and the Order of Taking contained the following paragraph:

The owner of all of said land is believed to be JOSEPH N. VERROCHI OF HINGHAM AND ROSE N. COOPER OF BOSTON, SURVIVING TRUSTEES OF THE VERROCHI REALTY TRUST UNDER A DECLARATION OF TRUST DATED DECEMBER 22, 1952 AND REGISTERED IN NORFOLK REGISTRY DISTRICT OF THE LAND COURT AS DOCUMENT NO. 214408; the mortgagee of all of said land is believed to be FRANK A. DAY, EXECUTOR UNDER THE WILL OF MARY E. DAY, late of Newton, Middlesex Probate No. 369899; and it is believed that no other persons have any interest in said land but the right, title and interest of every person in said land is included in this taking.

Notice of taking was given by the Town only to those mentioned in the above quoted paragraph and to no others.

On August 1, 1966, Joseph N. Verrochi, Rose N. Cooper, and Michael J. Verrochi, Jr., Trustees of the Verrochi Realty Trust, filed a petition for damages for the eminent domain taking in the Norfolk Superior Court (Docket No. 87798). The case was tried by a jury and the plaintiffs awarded $47,870. Execution issued on December 3, 1969 for $38,900 which was the amount of the judgment plus interest less a prior pro tanto payment, and the execution was paid in full.

6. Title to the locus was acquired by Joseph N. Verrochi, et al, by deed from Frank A. Day, executor, under the will of Mary E. Day, dated January 6, 1962, recorded at Book 3988, Page 374. The land was described in the deed by reference to a Milton assessor's plan.

7. Mary E. Day's title was acquired by deed from Frank A. Day, et al, Trustees of Neponset River Trust dated July 18, 1952, recorded at Book 3101, Page 384 and by deed of Charles C. Gleason dated September 16, 1949, recorded at Book 2858, Page 249. In neither this conveyance nor the later one by Day as Executor to Verrochi is there reference to any right of way, servient or dominant.

8. The Neponset River Trust received title to its interest in the locus and plaintiff's land by deed from Mary E. Day, et al, as individuals dated August 9, 1938 and recorded at Book 2195, Page 462 and by deed of Herbert F. Fleischner dated March 20, 1946, recorded at Book 2858, Page 29. Charles C. Gleason received title to his interest in the locus by deed from Herbert F. Fleischner dated June 2, 1949, recorded at Book 2858, Page 297, and by deed from Katherine B. Hamlin et als dated June 20, 1949 and recorded at Book 2858, Page 244. "Hamlin, et als", acquired their interest in said land as issue and spouse of Edward Hamlin, and issue of George P. Hamlin, et ux. Edward and George Hamlin acquired title to their interest by various deeds from Henry W. Hunt, dated August 2, 1897, recorded at Book 794, Page 614; dated April 20, 1897, recorded at Book 784, Page 199; dated May 9, 1896, recorded at Book 768, Page 434; dated April 28, 1896, recorded at Book 759, Page 326; and dated February 4, 1896, recorded at Book 754, Page 178; and by deed from Charles E. Stratton dated December 22, 1896, and recorded at Book 755, Page 433.

The deed at Book 794, Page 614 contains the words:

Also all rights of way appurtenant to the granted premises and also a right of way from said premises over Riverside Avenue so called to Wharf Street and over Wharf Street and a new street leading from said street to Granite Avenue. The granted premises are shown on a "Plan of Neponset River Lands in Quincy and Milton" etc. dated November 1896, Karl H. Hyde Civil Engineer, and are a part of the second parcel described in the deed of the grantor to Ellen L. Hunt and another, recorded with Norfolk Deeds Libro 647, folio 53.

The deed at Book 882, Page 90 contains the following words:

also a right of way from this parcel to Wharf Street so called over Riverside Avenue so called convenient to the parties.

The deed at Book 899, Page 546 contains the words:

right of way from said premises over Riverside Avenue, so called, to Wharf Street and over Wharf Street and a new street leading from said street to Granite Avenue. The granted premises are shown on a "Plan of Neponset River lands in Quincy and Milton," dated November 1896, Karl H. Hyde, Civil Engineer. Being part of the same premises conveyed to me by Ellen L. Hunt and others by deed dated April 29, 1897 and recorded with Norfolk Deeds, Lib. 784, fol. 399, and are subject as therein set forth so far as now in force.

9. The title holder of record of the fee and appurtenant rights to the plaintiff's property on November 3, 1965, the date of the taking, was Vic Diehm Associates, Inc., a Delaware corporation, by deed from Paxton Realty Company dated June 16, 1953, and recorded at Book 3186, Page 132, which deed contained the following words:

and subject to and with the benefit of the rights, easements and restrictions of record so far as now in force and applicable.

By Certificate of Amendment dated December 2, 1957 and recorded on March 24, 1969 at Book 4581, Page 358, Vic Diehm Associates, Inc., changed its name to Air Trails Broadcasting, Inc. By Certificate of ownership dated June 29, 1961, and recorded on March 24, 1969 at Book 4581, Page 361, Air Trails Broadcasting, Inc., was merged into WEZE, Inc., a Delaware corporation.

10. There has been some use of an access road which runs over the locus from the eastern end of Riverside Avenue to the plaintiff's land, by the plaintiff and its predecessors uninterrupted since 1943. That access road is located in substantially the easement area described in the plaintiff's chain of title. The access road is the sole means of vehicular access to the plaintiff's land. The access road was, at least from 1953 until approximately 1978, an eight foot wide gravel and dirt road. In approximately 1978, the plaintiff paved the access road, widening it approximately two or three feet.

11. Prior to 1979, for over twenty years, approximately three to four persons would use the access road daily to access the plaintiff's land. Beginning in 1979 or 1980, approximately ten to twelve individuals would use the access road daily. In 1980, the Town placed a locked gate across the access road and gave the plaintiff a key to that gate on the condition that it leave the gate locked when the access road was not in use by the plaintiff.

12. The Town allowed water lines to be laid across the locus to the plaintiff's land in approximately 1970. The Town thereafter supplied the plaintiff with water, and since at least 1978, has serviced those water pipes.

13. From the early "1950's" until approximately 1970, the Town would plow snow on the access road from Riverside Avenue to the approximate midpoint of the access road.

14. By deed dated June 30, 1959, recorded at Book 3738, Page 304 from Mary E. Day, Verrochi Realty Trust acquired title to property in Quincy north of the plaintiff's property, as referred to in Plan of Quincy Assessor's No. 6161. This deed contained the following words:

together with the right to pass and repass for convenient egress and ingress to and from Riverside venue in Milton, in common with others entitled thereto over a strip of land 40 feet wide in Milton shown on plan 2441, Page 437 extending from Riverside Avenue across lands formerly of Neponset River Trust and lands of Yankee Network, Inc., to relocate said way, and with the benefits of rights reserved to the Grantor in said deed.

15. By Decree of this Court dated March 8, 1974, Certificate of Title No. 97444, SSB Realty, Inc., was adjudged the owner of substantially the property described in paragraph 14 above. The decree contained the following words:

The land hereby registered is subject to, and portions thereof have the benefit of, the following:

. . .

A forty-foot right of way, approximately shown on said plan, as set forth in a deed given by Frank A. Day et al, Trustees to the Yankee Network, Inc., dated May 25, 1943, duly recorded in Book 2441, Page 437, and in a deed given by Mary E. Day to Michael J. Verrochi et al, Trustees dated June 30, 1959, duly recorded in Book 3738, Page 304.

. . .

The "said plan" above mentioned is that drawn by H. W. Moore Assoc., Surveyors, dated February 1, 1971, and filed with the certificate of title, a copy of sheet 1 of which is attached hereto as exhibit "E".

The plaintiff in this action, the owner and operator of a radio station, is seeking a declaration of its rights in an access road which crosses over a piece of land (the locus) taken by the Town of Milton (the Town) in 1965 by eminent domain for conservation purposes. The Town is seeking a declaration that it owns the locus and that the plaintiff has no interest in the locus. For the reasons stated hereinafter, I rule that the Town's 1965 eminent domain taking extinguished the plaintiff's easement rights in the access road, and further, that the plaintiff has no rights over the access road or any part of the locus.

The plaintiff's predecessors had the benefit of a recorded easement running from their land in Quincy, over the locus, to Riverside Avenue in Milton. That easement has been in the plaintiff's chain of title since at least 1943. The Town took the locus in fee for conservation purposes in 1965. The Town gave proper notice to the record owner of the locus but did not give any notice directly to the plaintiff's predecessor who held the dominant estate for the easement at issue at the time of the taking. The plaintiff took title to its property in 1978, and at that time the taking was recorded. The deed conveying the plaintiff's land provided that the conveyance included the benefit of whatever rights or easements which were then in force and applicable.

The plaintiff makes several arguments as to why the taking should not affect its easement. [Note 2] It first argues that the taking was not intended to eliminate the easement. The plaintiff next argues that the taking was defective as to its easement because its predecessor did not get notice. Finally, the plaintiff argues that the conduct of the Town in some way constitutes an acquiescence or estops the Town from interfering with the its easement.

The plaintiff argues that the Town did not intend to eliminate the easement in its taking, and therefore, that the plaintiff's easement still exists. In general, a taking will vest the condemner with complete title. See Ace Finance & Investment Co. v. Boston Redevelopment Authority, 51 Mass. App. Dec. 41 (1973). This is true even if the right of passage is an implied easement providing the only access to the property. See Darman v. Dunderdale, 362 Mass. 633 , 641 (1972) (Registration case wherein taking by Commonwealth resulted in abutting parcel, which was not included in taking, being landlocked).

The 1965 Order of Taking stated that the taking was in fee simple and that "the right, title, and interest of every person in said land" was taken. I therefore rule that the Town intended to, and in fact did, take the locus in fee, unburdened by the plaintiff's easement.

The next issue is whether the taking was defective as to the plaintiff or their predecessor due to a lack of notice. [Note 3] Lack of notice will not invalidate a taking. U.S. v. 125.2 Acres of Land, 732 F.2d 239, 241-43 (1st Cir. 1984) (lack of notice will not affect taking, but may affect right to damages); Barnes v. Peck, 283 Mass. 618 , 631 (1933). But see M.G.L. c. 79, § 5L (notice is required when taking is not by Commonwealth, county, city, or town). The plaintiff argues that both the United States Supreme Court and the Massachusetts Supreme Judicial Court have suggested that, in the context of eminent domain proceedings, "...a more stringent standard is necessary to satisfy the notice requirements of the Fourth Amendment..." than was required in certain "older" cases. See Opinion of Justices, 365 Mass. 681 , 693 (1974). In the Opinion of the Justices, the Supreme Judicial Court cited to the case of Walker v. Hutchinson City, 352 U.S. 112 (1956), in support of that trend. In Walker, the Supreme Court was considering the issue of whether publication notice, under the particular facts of that case, satisfied Due Process requirements for notice in a proceeding to fix compensation in a condemnation case. Id. at 113. See also Id. at 122 (Frankfurter, J. dissenting) ("...Court's decision does not hold the taking at issue itself invalid ..."). Subsequent to both the decision in Walker and the Opinion of the Justices, the First Circuit Court of Appeals has directly addressed the issue raised by the plaintiff, and held that lack of direct notice will not affect an actual taking, but that lack of notice may affect the right to compensation. See 125.2 Acres of Land supra at 241-43. The other cases cited by the plaintiff in support of its proposition involve either cases for compensation proceedings subsequent to a taking, or do not involve takings at all. The plaintiff's proposition that lack of notice will invalidate a taking is incorrect. Lack of notice may, however, affect a property owner's right to compensation. No other deficiencies were raised or found in the 1965 taking by the Town, and therefore, I rule that the taking was valid and extinguished whatever rights the plaintiff's predecessor had in the locus. [Note 4] Because the plaintiff's predecessor had no easement rights over the locus at the time they conveyed to the plaintiff in 1978, the plaintiff did not acquire any easement rights over the locus by that conveyance.

The plaintiff's final argument is that the totality of the Town's conduct somehow constitutes an acquiescence or estops the Town from interfering with the plaintiff's alleged easement.

The plaintiff argues that the doctrine of acquiescence, which is normally applied to construe an ambiguous deed, should be used in the present case to construe the intent of the Town in its taking. See Ryan v. Stavros, 348 Mass. 251 , 260 (1964). The plaintiff's reliance on the doctrine of acquiescence is misplaced. Normally that doctrine is applied to assist in construing the intent of parties to a conveyance when the instrument creating the conveyance is ambiguous on its face. In this case, the Order of Taking was not ambiguous, and so, extrinsic evidence would not be admissible to show the Town's intent.

The argument that the Town should be estopped from preventing any further use of the access road because of its actions in allowing the plaintiff to continue to use the access road after the taking is similarly misplaced. The Town's actions consisted of permitting the plaintiff and its predecessor to use the access road, placing a locked gate on the road and giving the plaintiff a key to it, plowing the road, and permitting pipes to be laid over the locus to the plaintiff's property and servicing those pipes. [Note 5] These actions, however, were permissive. A property owner may permit someone to use their property for as long as they like, and then at any time revoke that permission. In this case, the Town allowed the use for a period of time, but when the plaintiff paved the road and dramatically increased the volume of use, the Town, in essence, revoked its permission for the plaintiff to use the road. There is no legal basis for creating an easement by estoppel. Although the facts of this case are unfortunate, the Court cannot impose an easement on Town conservation land when there is no legal basis for doing so.

The defendant has submitted various requests for rulings of law, to which I make the following rulings: requests number two, six and seven are granted, request number one is denied, request number three is denied as that issue was not before the Court, requests number four, five and eight are denied as they are overbroad and beyond the scope of the evidence introduced at trial.

Judgment to enter accordingly.