MARJORIE SCHECHNER vs. RAM COHEN, DEBRA J. DeBOTTOM, NISIM BENJUYA and DIANE BENJUYA.

By complaint filed on October 3, 1987 and amended on July 20, 1988 and March 13, 1991, Plaintiff seeks an easement by implication over a driveway ("the Driveway") located at 52 Beaconwood Road in Newton, the removal of a wall ("the Wall") placed across the Driveway by Defendants, the restoration of the Driveway its condition prior to the placement of the Wall and the cessation by Defendants of further interference with Plaintiff's use of the Driveway. Plaintiff further seeks damages for the diminution in value of her property caused by the Wall.

This case was tried on March 13, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Four witnesses testified and seventeen exhibits were introduced into evidence, which exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. By deed dated April 24, 1984 and recorded at Book 15542, Page 309 in the Middlesex South Registry of Deeds, [Note 1] Plaintiff and her husband Max P. Schechner acquired title to 62 Beaconwood Road ("62 Beaconwood"), Newton as joint tenants (Exhibit No. 9). 62 Beaconwood is shown as Lot 18A on a plan recorded at Book 7533, Page 438 as Plan Number 138 of 1950 and entitled "Plan of Land in Newton Highlands Mass., Dec.28, 1949" ("the Plan") (Exhibit No. 3).

2. By deed dated October 18, 1985, Max P. Schechner deeded his interest in 62 Beaconwood to Plaintiff (Exhibit No. 10).

3. By deed dated December 31, 1986 and recorded at Book 17758, Pages 1 and 2, Defendants acquired title to 52 Beaconwood Road ("52 Beaconwood") in Newton (Exhibit No. 15). 52 Beaconwood is shown as Lots 16A and 16B ("Lots 16A and 16B") on the Plan and is adjacent to 62 Beaconwood.

4. By deed dated September 20, 1977, and recorded at Book 13290, Pages 320-8, Dorothy M. Bolton, Trustee of the Beaconwood Realty Trust ("Bolton") acquired 62 Beaconwood and the Lot 16A portion of 52 Beaconwood (Exhibit No. 7), thus acquiring ownership of both 62 and a portion of 52 Beaconwood. By deed dated July 28, 1980 and recorded at Book 14019, Page 199-200, Bolton conveyed 62 Beaconwood (Lot 18A) to Douglas K. Decker and Dustin Mackie Decker as tenants by the entirety ("the Decker Grant") (Exhibit No. 8). Said deed described the conveyance as: "subject to the rights of others lawfully entitled thereto to use in common with the Grantees, their heirs and assigns, so much of the driveways located on the within described premises as is necessary for access and egress to and from their respective garages."

5. 52 and 62 Beaconwood abut each other and for more than 30 years a Driveway has run between the two parcels. The Driveway runs easterly from Beaconwood Road onto 52 Beaconwood, then turns south running onto 62 Beaconwood running behind the house thereon and thereafter turns west, returning to Beaconwood Road, thereby forming a "U" shape (See Exhibit No. 16).

6. In the spring of 1987, Defendants constructed a retaining wall ("the Wall") over a portion of the Driveway on 52 Beaconwood thereby preventing access to the rear of 62 Beaconwood where the underhouse garage is located, from the northerly leg of the "U".

7. By deed dated January 15, 1980, Bolton granted 70 Beaconwood, shown as Lot 19A on the Plan and abutting 62 Beaconwood to the south, to Joseph A. Burke and Barbara A. Burke. At the time of the conveyance, Bolton owned 62 Beaconwood and reserved herself the right "to use in common with Grantees so much of the driveway located on the within described premises as is necessary for access to the garage located on said Lot 18A . . . " Accordingly, access is still available from the southerly side of 62 Beaconwood.

The origin of an implied easement whether by grant or by reservation must be found in a presumed intention of the parties, to be gathered from the language of the instruments 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. Labounty v. Vickers, 352 Mass. 337 , 344 (1967); Dale v. Bedal, 305 Mass. 102 , 103 (1940). Further, implied easements have been recognized when land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and 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 , 152 (1985). Such easements are based on presumed intention of the grantor. Cummings v. Franco 335 Mass. 639 , 642-3 (1957).

In the present case, I find that while the 1980 Decker Grant may have reserved an easement over 62 Beaconwood for the benefit of 52 Beaconwood, and clearly did not grant an easement over 52 Beaconwood for the benefit of 62 Beaconwood. Moreover, the evidence is insufficient to prove that Bolton intended to create an easement over 52 Beaconwood. The Decker Grant's reference to "driveways" without further explanation, and the surrounding circumstances do not amount to such intent. Further, Plaintiff has alternative and adequate access to her property and has not shown that use of portion of the Driveway on 52 Beaconwood is reasonably necessary for such access.

Plaintiff submitted Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.