JOHN D. MORRIS vs. RICHARD S. CAPOLUPO.

In this complaint to remove a cloud on title pursuant to the provisions of G.L. c. 240, §6-10 inclusive, the plaintiff alleges that the grant from a common predecessor in title claimed by the defendant is too vague to be enforced, that laches bars the defenant's rights and that the conveyance, if effective, violates the rule against perpetuities. The defendant counters that the conveyance, whether of a fee or an easement, was sufficiently definite to be enforceable, that there was a present grant for which he had paid valuable consideration and that the easement was an integral part of the sale to him of the land on the opposite side of Middle Road in Newbury in the County of Essex, title to which is not in contention. Whatever their disagreements the parties doubtless agree with the Court that the conveyancing is both unusual and inartistic, and that the draftsman, who is now deceased, did not frame with particularity the understanding of the parties.

A trial was held at the Land Court on August 8, 1991, the Court having earlier denied the plaintiff's motion for summary judgment. At the trial a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on October 9, 1991.

On all the evidence I find and rule as follows:

1. Alfred D. Smith, late of said Newbury, acquired from Bertha W. Noyes, administratrix, two large tracts of land in said Newbury, situated both on the east and west sides of Middle Road and conveyed to Mr. Smith by deeds dated September 29, 1960, October 3, 1960 and March 22, 1961 and recorded with Essex South District Deeds (to which Registry all recording references herein refer), Book 5077, Page 211 (Exhibit No. 1), Book 4708, Page 294 (Exhibit No. 2), Book 4753, Page 316 (Exhibit No. 3) and Book 5074, Page 211 (Exhibit No. 4).

2. Mr. Smith subsequently transferred the land on the westerly side of Middle Road containing about 37.7 acres to himself and his wife, as tenants by the entirety, by deed dated February 1964 and duly recorded in Book 5149, Page 530 (Exhibit No. 5).

3. Late in 1971 or early in 1972 the defendant who at that time had a bait and tackle shop on Plum Island Boulevard in Newbury met Mr. Smith. Mr. Smith had a mink farm on his land westerly of Middle Road, and a tremendous snowfall blocked the access to the minks and threatened them (and consequently Mr. Smith) with starvation. Mr. Capolupo's snow thrower brought the two men together, and through his efforts the way was opened and food brought to the minks.

4. Some time after this negotiations began and continued for several months relative to the sale of a portion of the Smith land to the defendant.

5. In the fall of 1972 the parties executed two purchase and sale agreements as well as a rider to one of them. In addition, Mr. Smith executed and delivered a deed to the defendant. The draftsman who prepared all these instruments was Norman Espovich of Newburyport, who was Mr. Smith's counsel although the defendant thought the attorney was representing him as well. Since this was standard practice at the time in real estate transactions, doubtless Mr. Espovich was counsel for both.

6. The initial purchase and sale agreement (Exhibit No. 6) dated September 22, 1972 covered a parcel of vacant land on the westerly side of the Newburyport Turnpike, with a frontage thereon of 1,000 feet and a depth of 500 feet, containing about 450,000 square feet together with an easement fifty feet in width over other land of Smith to Middle Road within certain defined limits. The agreement expressly gave Capolupo the right to construct a leaching bed under the easement.

7. A rider to the September 22, 1972 agreement (Exhibit No. 7) executed a few days later and dated September 28, 1972 contained further provisions relative to the sanitary facilities to be constructed within the easement, but it related only to the area east of Middle Road whereas the present controversy centers on the land west of Middle Road.

8. A few days later by agreement dated October 6, 1972 (Exhibit No. 8) Mr. and Mrs. Smith and the defendant further revised their agreement. This version of the purchase and sale agreement included as Parcel No. 1 the same parcel containing 450,000 square feet covered by the earlier agreement. It still did not encompass all of the Smith land east of Middle Road but only the commercially zoned land. It did, however, add a second parcel, and it is the effect of the language relative to Parcel No. 2 which is at the center of the present controversy. The provisions which are in dispute read as follows:

Parcel #2. A certain parcel of land located North and West of Smith residence, and being on the Westerly side of Middle Road. The frontage of said Parcel #2, and the entire area, shall be of a good and sufficient legal size to construct a disposal, and/or leaching field, for the sanitary sewerage of Parcel #1.

The party of the second part shall have an easement over the land of Smith, East of Middle Road and adjoining Parcel #1; the said easement to consist of the right to pass and repass, and the right to build, and/or construct, ways and roads, and also to lay sewer pipe over the land of Smith, East of Middle Road. No buildings are to be constructed on Parcel #2, and the Smiths shall have the right to use Parcel #2 in any manner not inconsistent and which does not interfere with the construction, and/or maintenance, of leaching field, and any pipes, and/or connections, used as a part of the said leaching field.

The party of the second part will, after the aforementioned construction, on Parcel #2, restore it, as far as possible, to its natural habitat.

A plan of Parcel #2 will be prepared by buyer, and only that area of land necessary for said leaching field, and all appurtenances, is to be conveyed by Smith, and Capolupo will pay all expenses in connection with said plan, and/or survey.

After these provisions which are found in the description of the premises covered by the agreement the boiler plate language of Exhibit No. 8 appears as to a certain FHA provision. Immediately thereafter and prior to the paragraph relative to the delivery of the deed there appears this language:

Said premises are to be conveyed twenty-one days after the necessary permits for said leaching field, and the right to construct pipes under Middle Road have been granted.

9. While not introduced at the trial but forming a portion of each parties' argument relative to the plaintiff's motion for summary judgment was a decision by the Board of Selectmen for the Town of Newbury granting at the Board's regular meeting held November 14, 1972 an easement across Middle Road for the placement of pipe for sewerage. The language of the notice from the then Town Clerk read, "It is also understood that both entrance and exit ends of this pipe will be on land now owned, or to be purchased by, you."

10. Immediately after and indeed on the same day that the purchase and sale agreement last above mentioned was executed, Mr. and Mrs. Smith executed a deed to the defendant containing the same language as in the purchase and sale agreement. The deed describes the defendant generally as the grantee rather than the party of the second part, but otherwise the language of the purchase and sale agreement is carefully tracked. The deed recites a consideration of $14,000 as in the agreement. The acknowledgement of Mr. and Mrs. Smith was taken by Norman Espovich. The deed was dated October 6, 1972 from Mr. and Mrs. Smith to the defendant and is recorded in Book 6014, Page 540 (Exhibit No. 9). The description of parcel #1 therein does not contain the usual metes and bounds description; but the defendant's title to the land easterly of Middle Road has not been contested.

11. By agreement dated August 13, 1973 (Exhibit No. 10) and the sum of $500 Mr. and Mrs. Smith granted an option to Mr. Capolupo to purchase the Smith land east of Middle Road and abutting the 450,000 square foot parcel covered by the earlier purchase and sale agreements. After the description of the premises to be conveyed this language appears: "Plus a leeching [sic] field to be located on the Smith property." The agreement then proceeds to describe once again the same Parcels 1 and 2 as appear in the earlier purchase and sale agreements and in the deed which is Exhibit No. 9. The language of the additional agreements from the prior documents is repeated once again in this purchase and sale agreement. The agreement was acknowledged by the defendant, and the notary who took his acknowledgement was not Mr. Espovich.

12. The final conveyance from Alfred D. Smith et al to Richard S. Capolupo was by deed dated September 7, 1973 and recorded in Book 6014, Page 539 (Exhibit No. 11) conveying for $5,000 the Smith land east of Middle Road. The acknowledgement was taken by Norman Espovich. The description in this deed encompasses the entire Smith parcel east of Middle Road and resolves any questions as to the premises earlier conveyed between Middle Road and the Newburyport Turnpike.

13. As the years went by the defendant's interest broadened, and he became an entrepreneur in the field of hazardous waste disposal and did not again deal with either Mr. Smith or his wife.

14. The plaintiff was led to the Smiths by his then wife who wished to live in the country. Mr. Morris (and in the first instance Mrs. Morris as well) accordingly acquired several parcels from the Smiths beginning by a deed from Alfred D. Smih et al to John P. Morris et al dated December 29, 1977 and recorded on January 5, 1978 in Book 6434, Page 175 (Exhibit No. 12). Consideration for this transaction was $5,500 for the conveyance of a parcel of land containing 125,941 square feet and shown on a plan entitled "Plan of Land in Newbury, Massachusetts as prepared for John David & Annmarie Morris" dated December 9, 1977 by Pembroke Land Survey and recorded in Plan Book 146, Plan 49 (Exhibit No. 20). This parcel is shown as Lot 6A on the Newbury Assessors' Plans (Exhibit No. 18A).

15. Mr. and Mrs. Morris subsequently conveyed Lot 6A to Mr. Morris alone by deed dated March 5, 1980 and recorded in Book 6685, Page 292 (Exhibit No. 13).

16. As the years passed Mrs. Smith became a victim of cancer, and Mr. Smith began to age. They subsequently conveyed to Mr. Morris for $8,100 a large parcel of land containing 25.39 acres as shown as Parcel A on a plan by Charles H. Moloy dated April 30, 1981 and recorded in Plan Book 165, Plan 66 (Exhibit No. 21). This large parcel of land fronted on Downfall Road and comprised a large area behind the lots fronting on the westerly side of Middle Road. The building housing Mr. Smith's minks appears to have been located on this Parcel A. The deed from Mr. and Mrs. Smith to Mr. Morris is dated May 18, 1981 and recorded in Book 6821, Page 137 (Exhibit No. 14). This price is shown as Parcel 6B on said Assessors' Plans.

17. In January of 1988 Mr. Smith, as the surviving tenant by the entirety, conveyed to Mr. Morris Parcel B (Assessors' Lot 6) on the 1981 plan which contained 2.6 acres of land by deed dated January 4, 1988 and recorded in Book 9351, Page 252 (Exhibit No. 15). This deed recites a consideration of $75,000, but in fact a much more modest sum was paid for the conveyance. However, the parties considered a portion of the consideration to be represented by Mr. Morris's agreement to care for Mr. Smith, which he in fact did.

18. Over the years Mr. Morris took Mr. Smith to his doctor's appointments, rearranged the house which Mr. Smith had conveyed to him so that Mr. Smith had living quarters on the first floor, took him shopping or did the shopping for him and generally took the necessary steps to assist an elderly person living alone to survive. The purchase and sale agreement covering the last Smith­Morris transaction (Exhibit No. 24) provided for a purchase price of $75,000 but imposed on the buyer the obligations to make enumerated repairs. It further provided that all expenses of the closing including real estate taxes and the establishment of a fund to which Mr. Morris was to contribute at the rate of $400, not to exceed $20,000 over fifty months, were to be credited against the selling price. Mr. Smith died on February 20, 1989 (Exhibit No. 25C) and his last will and testament left gifts of personal property to two named friends and provided in Clause 4 for $10,000 to the Saugus School Committee to establish a scholarship fund. This was not done. All the rest, residue and remainder went to Mr. Morris. Mr. Morris was appointed executor of the will.

19. A Newburyport law firm represented Mr. Smith and Mr. Morris in the conveyances and the preparation of the will. No attorneys from this firm testified at the trial. However, Mr. Smith was advised by counsel on the execution of the will out of the presence of Mr. Morris. It is unclear how the land conveyed by the deeds from Mr. and Mrs. Smith to Mr. Morris were selected and how the purchase price was determined. It is clear, however, that Mr. Smith was concerned that the amount of the consideration in the last deed might affect his right to secure benefits.

20. The description of the documents in the grantor/grantee indices in the Registry of Deeds are said not to indicate the agreement relative to the septic system on the westerly side of Middle Road. Arguments in early stages of the trial suggest nonetheless that the plaintiff received compensation from a malpractice insurer because of the language now in issue.

21. The plaintiff and the defendant first met in January of 1987 at the defendant's house after the defendant learned of the transactions between Mr. Smith and the plaintiff. At the meeting the defendant expressed amazement that the property had been conveyed in the light of his agreement with Mr. Smith. Just what claims the defendant made as to his acquisition is in dispute, but he did indeed deliver copies of the deeds to him which the plaintiff took to his attorneys. Despite his knowledge of the defendant's claim, the plaintiff consummated his final purchase from Mr. Smith for his stated reasons to secure access to the barn on Lot 6A and the area then conveyed was not within the area north and west of the Smith dwelling house as set forth in the controversial language of the Capolupo-Smith documents.

22. During 1987 there were several telephone conversations between the defendant in Florida and the plaintiff which culminated in a meeting at 108 Middle Road in November of 1988 (1987?) at which time the parties walked the three properties, Lot 6, 6A and 6B for the brief discussion as to the sale of all the land as a package including that owned by the defendant on the Turnpike. The plaintiff claims that at this time the defendant made grandiose claims about the extent of his rights in the Smith property. I make no finding on this as it is immaterial in the decision.

23. In June of 1989 the defendant called the plaintiff to say that he had arranged to have men and equipment on the premises to take the necessary "perc" tests as the preliminary steps for a leaching field. The plaintiff replied that if he did so it would be his obligation to leave the field as he had found it. On the following morning when the defendant's son arrived with a crew the Newbury police at the request of the plaintiff stopped the work from going forward. Mr. Capolupo previously had written Mr. Morris under the date of June 16, 1989 stating that the engineering work to be performed north and east of the Smith residence for a sanitary disposal system would be done in as safe and professional a manner as possible and that the work would be timed so that Morris might be present (Exhibit No. 26).

24. The purchase price for the lands conveyed to the defendant in fee together with the rights covered by the instruments and those here in dispute was unified, and there was no breakdown between the purchase of the land on the east of Middle Road and the leaching field rights on the west. While the documents do not reflect an installment sale or a sale on credit, the purchase price in fact was paid in installments and collected by Mr. Espovich. The defendant testified that he paid the purchase price over a period of time to Mr. Smith's attorney and that it was his understanding that he was purchasing all the land on the easterly side of Middle Road together with the right to a leaching field on the westerly side of Middle Road. I so find.

The principal ground of contention between the parties is the enforceability of the language set forth in two purchase and sale agreements and one deed as to Capolupo's rights on the westerly side of Middle Road. The question as to whether the regulations of the Department of Environmental Protection ("DEP") or the Town of Newbury permit the installation of a leaching field on the opposite side of the road from the property or whether indeed there is land suitable for a leaching area was not directly litigated and is not involved in my determination. Neither the parties nor I have researched the question as to whether DEP's regulations permit a leaching field to be located on any land to which the owner of the property served thereby has less than a fee interest. The Selectmen's grant suggests otherwise, but it is not clear that they intended to eliminate a permanent easement as a site. Finally I have not weighed the question as to whether there in fact are any portions of the land easterly of Middle Road where the condition of the soil is such that successful percolation tests would permit the building of a residence, if not a commercial building. In the first place no evidence was introduced on the subject, and secondly it also is immaterial since it is evident that the Smiths and Mr. Capolupo together with their attorney proceeded on the assumption that there was no land suitable for a leaching field or a septic system on the land east of Middle Road.

As I have framed the question presented to me it is whether the language of the grant constitutes the grant of an easement or a fee and whether, once this determination is made, it is specific enough to be enforced. If it is not enforceable, then a question arises as in Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686 , 691 (1962) as to whether Mr. Capolupo would be entitled to restitution if he so elected. I do not, however, reach that question as I find and rule that the language is the grant of an easement that is to be construed in a reasonable manner, that as so construed it is enforceable, that it is still in effect and that it grants to the defendant the right to enter on the land on which the former Smith residence is located, the defendant having waived any rights in Lot 6A and 6B, in order to locate and install a leaching field of reasonable size in the location specified in the purchase and sale agreements and deed. In order to determine whether a fee or an easement was contemplated by the parties the language of the instruments must be examined in the light of their intention. The principal reason for my conclusion that the grant is that of an easement and not a fee is the reservation of the Smiths' right to use so-called Parcel No. 2 in any manner not inconsistent and which does not interfere with the construction and maintenance of the leaching fields and the pipes connected therewith. This is the language commonly used in the grant of easements to utility companies and others and leads to my construction of the grant as of an easement. It is inconsistent with the conveyance of a fee for the grantor to keep the right to use the premises for all compatible uses. I recognize that the draftsmanship is less than artistic and also uses words typical of a fee, but under all the circumstances I am of the opinion that the conclusion I have reached is more logical.

The question then arises as to how the easement is to be placed. When an instrument is silent on the location of a way the Court determines what is reasonable under the circumstances and where the way should be placed. Pratt v. Sanger, 4 Gray 84 , 88 (1855) and Western Massachusetts Electric Co. v. Samba's of Massachusetts, Inc., 8 Mass. App. Ct. 815 , 824 (1979) and cases cited. It is common in the grant of an easement for the erection of a power line to provide a general right in the utility to erect a line of poles across the land of the grantor with the exact location of the right of way to be fixed by either the completion of the work with the center line usually being the pole line or the recording of a plan. See, for example, Western Massachusetts Electric Co. v. Samba's of Massachusetts, Inc. The difficulty with the language employed in the present case is the reference to the frontage and the good and sufficient legal size for a disposal and/or leaching field for the sanitary sewerage. The size of such a leaching field may vary greatly depending upon the use to which the premises which it is to serve are put. Secondly, if there is to be frontage on Middle Road as the language provides, then the field is not west of the Smith residence, unless it is of considerable size. However, it seems to me evident that the leaching field bounds on the road since there are no provisions for a right of way from Middle Road westerly to the leaching field, although the earliest instruments provided for access on the Turnpike parcel easterly to Middle Road, subsequently rendered nugatory by a conveyance of all the land east of Middle Road. This is evidence that the parties were aware of how to include a right of way if they so wished. Therefore, a draftsman who principally was Mr. Smith's attorney and whose language accordingly must be construed more strongly against the grantor as is the usual rule must have intended that the leaching field in question bound on the street. The evidence is that leaching field was to be 100' x 75', and I find therefore that it is to be located adjacent to the line of Middle Road, there measuring 100 feet and continuing to the west for a distance of 75 feet and thus comprising a rectangle with 90° angles at each of the four corners. Should the defendant's agent fail to find within the leaching field as I have described it herein an area of sufficient percolation, then the easement is to end as impossible of performance. If the grant cannot be located with frontage on the street in the manner I have described, then its location is indefinite. The cases suggest that the Court may still be able to determine its location based on physical conditions and the purpose of the grant. However, I generally reject the contention that the dominant owner has a roving commission to conduct percolation tests on all of the former Smith land, at least after the lapse of so much time. However, if there is an area comprising 7,500 square feet located approximately as I have found it, the Court would entertain a motion to submit evidence of such a location.

On all the evidence therefore I find and rule that there is appurtenant to the land of the defendant situated on the easterly side of Middle Road an easement to use for a leaching field and usual appurtenances an area of the plaintiff's land containing about 7,500 square feet lying northerly of the former Smith residence and bounded on the east by the westerly line of Middle Road. It follows that the plaintiff's complaint must be dismissed.

Judgment accordingly.