CONSOLIDATED RAIL CORPORATION vs. WERNER F. GOSSELS and ELAINE F. GOSSELS, INDIVIDUALLY and as TRUSTEES OF BENNETT TRUST.

Plaintiff brings this action under G.L. c. 231A, §1 and c. 185, §1 for injunctive relief and a declaration of rights, both with respect to a 50' easement over defendants' land in Framingham.

Both parties moved for Summary Judgement under Mass. R. Civ. P. 56. Plaintiff relies in part on an earlier submitted Affidavit of John H. Rogers, professional engineer, plaintiff's construction manager, and defendants submitted Affidavits of Allan Mann and defendant Werner Gossels, both parties to transfers of title to the properties involved in this action. Both parties submitted memoranda. Counsel argued the motions on February 22, 1991 and stipulated as to various matters concerning the record title to the properties. On the basis of the foregoing and the pleadings, I find and rule that there is no genuine issue as to any material facts and further find and rule in favor of plaintiff as follows:

1. Plaintiff owns a parcel of land ("Plaintiff's Land") in Framingham off Arlington Street.

2. Defendants as trustees own a parcel of land ("Defendants' Land") abutting Plaintiff's Land to the north. Defendants' Land lies off Campbell Road and Hearth Street.

3. Plans referred to in the deed of Plaintiff's Land and Defendants' Land show a 50' strip (the "Easement Area") at the easterly end of Defendants' Land, identified as "50' DRIVE & UTILITY EASEMENT". By using the Easement Area one can pass from Plaintiff's Land over the Easement Area and continue on beyond Defendants' Land a short distance to Herbert Street, a public way.

4. Plaintiff's Land benefits from an easement (the "Easement") with respect to the Easement Area, as reserved in a deed (the "Easement Deed") from a predecessor in title to defendants, deed of First Arlington Realty Trust to Allan Mann et als, dated January 10, 1986 and recorded at Middlesex South District Registry of Deeds at Book 16707, Page 512, as follows:

Reserving to the grantor as appurtenant to the grantor's remaining land the right and easement to use, in common with the grantees, for all purposes for which public streets and ways are commonly used in the Town of Framingham, including without limiting the generality [sic], the right to install, maintain, replace and use utilities, the 50 foot wide strip of land within said Parcel B-1 shown on said plan as "50' DRIVE & UTILITY EASEMENT". The grantor agrees to pay his pro rata share of the cost of maintaining such easement area, incuding without limiting the generality the paving and utilities located therein, reasonably computed on the basis of the relative use thereof by the grantor, the grantees and all others using the same, until such time as said "50' DRIVE & UTILITY EASEMENT" area is included within and dedicated as a public way as contemplated herein. Upon the written request of the grantor to the grantees, and upon the grantor providing the grantees with reasonable assurances that the Town of Framingham shall extend Herbert Street, a public way, to the edge of Parcel B-1 at the northerly end of said 50' DRIVE & UTILITY EASEMENT area, the grantor shall have the right to obtain all approvals necessary for the use of said 50' DRIVE & UTILITY EASEMENT area as a subdivision road, to be constructed at the sole cost and expense of the grantor so as to be acceptable as a Town way at the time any subdivision plan therefor is filed with the Planning Board of the Town of Framingham. Upon dedication of such road as a public way, the grantees agree to convey the fee title in so much of said 50' DRIVE & UTILITY EASEMENT area as is included within such public way to the Town of Framingham upon written request therefor for nominal non-monetary consideration. The foregoing agreements contained in this paragraph shall be binding upon, and inure to the benefit of, the grantor's successors in title to the grantor's remaining land and the grantee's successors in title to said Parcel B-1.

The grantor acknowledges that, except for the rights and easements herein reserved as appurtenant to the grantor's remaining land, the grantor has no easements or other rights in or with respect to the premises conveyed hereby, whether such easements or other rights could be claimed by perscriptive [sic] use or otherwise, and hereby releases any and all such easements or other rights. The grantees acknowledge that, except for the rights and easements herein granted as appurtenant to the premises conveyed hereby, the grantees have no easements or other rights in or with respect to the grantor's remaining land, regardless of by what manner or means such rights could be claimed, and hereby release any and all such easements and other rights.

The "grantor's remaining land" includes Plaintiff's Land.

5. Plaintiff wishes to build a roadway approximately twenty feet wide in the Easement Area, exercising its rights under the Easement. Defendants have refused plaintiff access to do so. Defendants contend that the Easement requires plaintiff to build its road in compliance with Framingham Planning Board standards (a "Subdivision Road"), or not at all. A portion of the Easement Area has a hard-surfaced roadway serving buildings on Defendants' Land. The remainder of Easement Area is unpaved.

6. Plaintiff asserts that a Subdivision Road would, among other things, have to be 24' wide and would require plaintiff to obtain new Conservation Commission approvals. Plaintiff contends that the Easement permits it to build less than a Subdivision Road and commenced this action to establish that right.

7. The Affidavits submitted by defendants support defendants' contention that the expectation of the parties to the Easement Deed was that a roadway in the Easement Area would be a Subdivision Road.

8. Plaintiff has moved to strike all or portions of those Affidavits. I allow that motion in part for the reason that the materials stricken violate the hearsay rule or the parole evidence rule, or are conclusions of law. In general, the stricken material goes to the question of negotiations leading up to the Easement Deed and the understandings of the parties thereto. This material might be admissible if there were ambiguity as to the Easement, but I find there is none. The materials to be stricken are as follows: Gossels Affidavit: strike paragraphs 5 through 9, 12, 14, 15, 16 and 20 and Exhibits E, F, G, J and L. Mann Affidavit: strike paragraphs 3, 4, 6 and 7 and Exhibit C.

9. The Easement makes provision for a Subdivision Road and dedication of that road as a public way, thus providing a public road from Herbert Street to Plaintiff's Land. That would benefit defendants, as well as plaintiff, giving defendants access to a public way. Defendants and plaintiff's predecessors in title presumably expected that would happen.

10. However, those expectations are not mandatory and the parties are governed by the first sentence of the Easement, which uses language commonly employed to afford broad rights in a way.

11. "When an easement or other property right is created, every right necessary for its enjoyment is included by implication." Sullivan v. Donohue, 287 Mass. 265 (1934), 267. The right to establish a paved way is clearly implied with respect to access to and from commercial property such as Plaintiff's Land.

12. The right of the holder of a way easement to improve the way has been expressly recognized. Guillet v. Livernois, 297 Mass. 337 (1937) and cases cited therein.

13. The third and fourth sentences of the Easement provide for construction of a Subdivision Road in the Easement Area and acceptance of that by the Town as a public way, but there is nothing in the Easement making that exclusive. Defendants' argument leads to the illogical result that plaintiff might never be able to improve its access to Plaintiff's Land, since a prerequisite, action by the town to extend Herbert Street, is outside plaintiff's control. In fact, the Framingham Town Meeting voted on May 4, 1988 not to extend Herbert Street.

14. Defendants point to the second full paragraph of the Easement (reciprocal acknowledgements) and suggest that it reinforces their contentions. I disagree; that paragraph follows several grants and reservations of rights and easements (including the Easement) and is merely a confirmation that the rights of the parties are integrated in the deed.

15. Accordingly, I find and rule that plaintiff may construct a roadway in the Easement Area independently of the third and fourth sentences of the Easement.

16. Plaintiff has requested injunctive relief; but there is no suggestion that defendants will impede plaintiff in the exercise of its rights as found herein, so I will not issue an injunction. If that or other difficulties arise as to plaintiff's exercise of its rights, further application may be made to this court.

17. Defendants' motion for summary judgement is denied.

Judgement accordingly.