ACME LAUNDRY COMPANY, INC. and KENNETH F. ELDREDGE vs. SHIRLEY ANNE LOTUFF.

This is a complaint by Acme Laundry Company, Inc. ("Acme"), the lessee of Lot 22 on Land Court Plan No. 11919F (Exhibit No. 5), and Kenneth F. Eldredge, the treasurer and a principal stockholder of Acme, to reform a lease from Mary Eldredge to Acme Laundry Company, Inc. (Exhibit No. 2) demising the premises shown as said Lot 22 to include certain appurtenances situated on Lot 20 as shown on Land Court Plan 11919C (Exhibit No. 4). The present defendant, Shirley Anne Lotuff, is the successor in title to Mary Eldredge to Lots 20 and 22 and is a member of the Massachusetts bar.

A trial was held at the Land Court on November 26, 1990 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial the only witnesses were Kenneth Eldredge, Mary Eldredge, his ex-wife and the defendant's predecessor in title and Charles Dowd, the office manager for Acme.

On all the evidence I find and rule as follows:

1. The laundromat operation of Acme was commenced by the father of Kenneth Eldredge at some time immediately ater World War II, between 1948 and 1950, and was located on Lot 20.

2. In connection with the laundromat operation there was a septic system situated on Lot 20 which included a grease trap, above which there is a protective housing. The leaching pits for this lot, however, have always been on Lot 22.

3. In 1972 the laundromat was moved to a new building which was constructed on Lot 22, but the facility continued to use the grease trap and certain portions of the septic system on Lot 20. In the summer of 1984 Scofield Brothers, Inc. prepared a proposed monitor well plan for Acme to submit to the Department of Environmental Quality Engineering (now the Department of Environmental Protection). A copy of this plan is Exhibit No. 6, and it shows certain of the monitoring wells, the grease trap, the leaching pits and septic tanks situated on Lot 20, but the latter apparently are used by the present tenant or tenants of the building on Lot 20 and not by Acme.

4. Certain stores in the building on Lot 20 were leased to Robinson's 5¢, 10¢ - $1.00 Stores, Inc. by Eldredge Realty, Inc. by lease dated April 1, 1982 for five years ending April 30, 1987 but with an option granted to the lessee to extend for an additional five year term (Exhibit No. 1).

5. Mary V. Eldredge and Kenneth F. Eldredge encountered marital difficulties, and Mrs. Eldredge filed a complaint for divorce in the Barnstable Probate and Family Court, Docket No. 16142. In connection with the divorce the parties entered into an agreement dated August 22, 1984 (Exhibit No. 3) which provided for the disposition of their real properties and for other eventualities. Exhibit B to the agreement set forth the division of assets and paragraph 2 thereof relates to 52-54 Main Street which is Lot 20 and Lot 22, Cummings Road in Orleans. In substance the paragraph provided that Mr. Eldredge would acquire title to the locus from Eldredge Realty, Inc., a wholly owned subsidiary of Acme of which Mr. Eldredge owned 49.8% and Acme which he in turn would transfer to his wife, together with any existing leases thereon which Acme was to guarantee. The paragraph further provided that Acme, as lessee, thereupon would enter into a lease with Mrs. Eldredge, as lessor, "for a period of five (5) years with two option periods of five (5) years each, on the building located at Lot 22 Cummings Road, Orleans, Mass." with provision for the amount of rent and the assumption of all charges by Acme and with an escalation clause based on increases in the cost of living index.

6. The business lease (Exhibit No. 2) between Mrs. Eldredge, as lessor, and Acme, as lessee, provides that the premises "may be used by the lessee for the purposes of operating a dry cleaning and laundry and a self-service laundry, and for any other purposes not in violation of any applicable law. Lessor covenants'to lessee that the demised premises may be used by the lessee throughout the term of this lease and any extensions or renewals hereof for any and all of such purposes without violating any applicable zoning, building or other law, ordinance, statute, code, or other such requirement."

7. The lease has continued in effect for the first five years of its term and presumably has been extended in accordance with its provisions.

8. The lease also contains an express covenant of so-called "peaceful and quiet enjoyment".

9. In 1989 Acme learned that its lesor was attempting to sell all or part of the premises owned by her at this location in Orleans. Accordingly a complaint was filed with this Court seeking to have the lease reformed "to include an easement in the tenant to maintain and repair the underground septic tanks, pipes, wells and related facilities under Lot 20 for the benefit of Lot 22." Subsequently and during the course of this litigation Acme and Mr. Eldredge were allowed to amend the complaint to allege that some customers of the laundry had parked their vehicles on a portion of adjoining Lot 20, but the amendment did not expressly include a request to reform the lease in this regard.

10. The parties agree that Lots 20 and 22 which are adjoining were conveyed by Mrs. Eldredge to the defendant, but the deed was not introduced into evidence.

The plaintiffs have not shown any mutual mistake, fraud or misrepresentation so that the traditional grounds for reformation are not elements in this action. The plaintiffs, in reality, seek a declaratory judgment pursuant to G.L. c. 231A, §1 et seq that the lease includes the implied easement to use the septic system facilities and the right to park on the adjoining Lot 20. I find an implied easement for the former right but not for the latter. This posture of the case will require that the complaint be amended, and I grant the plaintiffs the right to do so within thirty days after the entry of judgment.

The law in Massachusetts as to implied easements is well established. In Jasper v. Worcester Spinning and Finishing Co., 318 Mass. 752 at 756 (1945) Justice Ronan of the Supreme Judicial Court stated the rule as follows:

The owner of a parcel of land may lay out or instal (sic] 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 or possession in title in the entire parcel will not create any real or actual easement, - (citations omitted) but upon a severance of 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 for 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 situated and characteristics of the land and the knowledge which the parties had or with which there 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 (citations omitted).

This rule applies to other transactions as well as conveyances, and it has been held to apply to leases. Mount Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105-106 (1933). Case v. Minot, 158 Mass. 570 (1893). For other cases as to implied easements see, for example, Cummings v. Franco, 335 Mass. 639 (1957), Early v. Guzzi, 328 Mass. 293 (1952), Flax v. Smith, 20 Mass. App. Ct. 149 (1985).

The same rules of construction apply to registered land and conveyances, leases and mortgages thereof as apply to land the title to which has not been subjected to the provisions of G.L. c. 185, insofar as the parties have knowledge of the controversy. See Feldman v. Souza, 27 Mass. App. Ct. 1142 (1989) Killiam v. March, 316 Mass. 646 , 648-651 (1944), Butler v. Haley Greystone Corp., 347 Mass. 478 , 485-486 (1964) S.C. 352 Mass. 252 (1967). The defendant who is a successor in title to Mrs. Eldredge's registered land acquired title to the propety at a date which does not appear in the Court records, nor was there introduced into evidence a certified copy of the notice of lis pendens which had been authorized by a justice of this Court for registration. However, the defendant does not dispute that she was aware of this action prior to the delivery of the deed to her.

I find and rule on all the evidence that there is an implied easement granted by the lessor to the lessee in the lease to use whatever portions of the septic system, the grease trap and the monitoring wells as are presently located on Lot 20 and that the easement is implied not only from the right granted in the lease to use the premises for the purposes stated therein but also by the covenant of quiet enjoyment which is expressly set forth in the lease before me. The lessor was and is the owner of both Lots 20 and 22, and the covenant of quiet enjoyment would be violated by acts that amount to serious interference with the tenancy. Carey's, Inc. v. Carey, 25 Mass. App. Ct. 290 , 298 (1988). Mustafizur Rahman v. Federal Management Co., Inc., 23 Mass. App. Ct. 701 , 705 (1987). It is clear to me, and I so find and rule, that these two provisions of the lease include the implied right to use the existing utility systems serving the premises including the septic system and its related appurtenances. However, I find the parking to be in a different classification. The easements which I have implied concern matters which by their very nature clients frequently neglect to bring to the attention of their attorneys, and such rights thus may be overlooked in the preparation of the documets finalizing the transaction. Parking, however, falls into a different category. It customarily is an amenity about which the parties would negotiate since it is clearly apparent from an examination of the premises and may even be required by the applicable zoning by-law. It cannot be left to an uncertain implication.

There was evidence at the trial that people using the laundromat parked not only on Lot 22, but also on Lot 20, on land to the rear of Lot 22, now owned by the defendant, and land across the street. The customers of the laundromat presumably will continue to follow this practice, and it is very difficult to police the parking habits of such consumers. However, there was no evidence introduced at the trial that it was the intention of the parties that the unbridled parking on both of the lots was to continue or that this right was included within the lease rental on which the parties had agreed. It is the very type of provision which the Court would have expected to find set forth in the lease. Since it was not, I find and rule that an implied easement that the customers of the lessee using Lot 22 were to have the right also to park indiscriminately on Lot 20 has not been proven.

On all the evidence therefore I find and rule that the plaintiffs have established an implied easement insofar as the grease trap, the septic system facilities and the monitoring wells are concerned and that they may continue to be used by the lessee of Lot 22 as part of the demised premises, but that there is no implied easement to use Lot 20 for parking.

The plaintiffs have filed requests for rulings, but I have made my own in lieu of ruling on those submitted by counsel.

Judgment accordingly.