TINKHAM WOODS ASSOCIATES vs. TOWN OF WILBRAHAM, MASSACHUSETTS.

Plaintiffs seek a declaration under G. L. c. 231A that they benefit from an easement over Defendant's land, upon which they may construct a road. Defendant denies the easement.

A trial was held on October 16, 1991. A stenographer was appointed and recorded the testimony. Twenty-five Exhibits (some with multiple parts) were introduced into evidence; all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Bruce Morin, Leo E. Morin, and Ronald Huot (a licensed land surveyor), all for Plaintiff; and Erna Vakel for Defendant.

I find and rule as follows:

1. By deed dated January 8, 1973, George H. Vakel ("Vakel"), individually and as Executor u/w/o Marguerite Vakel, conveyed to developers Angelo A. Liquori ("Liquori") and U. Francis Florian ("Florian"), a parcel of land partly in Wilbraham and partly in Springfield, by deed recorded in the Hampden County Registry of Deeds (all recording references in this Decision are to that Registry) at Book 3766, Page 40 (Exhibit 1). The part of the land in Springfield (the "Springfield Parcel") contains 10.61 acres and is long and irregularly shaped, its longest continuous boundary being its 2,234.91' easterly boundary, which is the Springfield-Wilbraham line. It abuts the part of the land in Wilbraham (the "Wilbraham Parcel") all along that 2,234.91' boundary. The Wilbraham Parcel is much larger and extends further north, to Tinkham Road.

2. Simultaneously with the recording of the deed, a Purchase and Sale Agreement (the "Agreement") dated January 8, 1973 executed by Vakel (individually) and Vakel's wife, Erna Vakel (the "Vakels"), Florian, and Liquori was recorded at Book 3766 Page 42 (Exhibit 2). The Agreement provided that Liquori and Florian were to sell the Springfield Parcel to the Vakels for $1.00, retaining the Wilbraham Parcel. The Agreement further provided:

the party of the first part (Liquori and Florian, PWK) agrees to grant to the party of the second part (Vakels, PWK), at the time a conveyance is made under this agreement, a right of way to the land in Springfield, which is the subject of this agreement, across the land in Wilbraham described in said deed part (sic) over streets and ways shown on the plans hereinafter mentioned. The purpose of the aforesaid right of way is to allow the party of the second part reasonable access from Tinkham Road in said Wilbraham to the land in Springfield, which is the subject to this agreement. Said right of way must be a width that meets, the requirements of the Town of Wilbraham Planning Board, must be approved by said Planning Board, as evidenced by a plan approved by said Board and recorded in said Registry of Deeds, and must be approved by the parties to this agreement as evidenced by the giving and the accepting of the deed required under this agreement.

It later provided:

By the date of the execution of this agreement and the date called for performance of this agreement, the party of the first part will have a plan prepared and approved by the Wilbraham Planning Board, in order to allow the creation of the Right of Way called for above, and the party of the second part will have prepared and approved by the City of Springfield Planning Board a plan sufficient to allow the conveyance in fee called for under this agreement. Both plans shall be in form sufficient for recording as aforesaid.

According to the Agreement, the conveyance was to occur on or before July 6, 1973. However, the conveyance never occurred.

3. Liquori and Florian planned to develop the Wilbraham Parcel. They hired a surveyor who drew plans. On October 12, 1973, the Town of Wilbraham Planning Board (the "Planning Board") approved the Plans, entitled "Section I (and Section II, respectively) Plan of Lots for Tinkham Glen Developed By U. Francis Florian and Angelo Liquori", dated July 1973, revised September 24, 1973 and October 11, 1973 C. E. Anderson Associates, recorded in Book of Plans 148, Pages 16-19 (the "Tinkham Glen Plan") (Exhibits 3A and 3B). The Tinkham Glen Plan provides for: two roads, Tinkham Glen and Ladd Lane, both leading southerly off Tinkham Road (presumably a public way) and converging, with Tinkham Glen proceeding further southerly to a cul-de-sac; Lots numbered 8 (sic) through 43 on one or the other of the ways; and several "Open Spaces" to be conveyed to the Town of Wilbraham. Most of the westerly boundary of the subdivision is the municipal boundary between Springfield and Wilbraham. The word "Vakel" appears on the Springfield side of the line.

4. The Tinkham Glen Plan also shows a parcel (the "50' Parcel") leading westerly off Tinkham Glen Road, between Lots 28 and 29, to the municipal boundary. A copy of that portion of the plan is attached. The 50' parcel bears the notation: "To be conveyed to Town of Wilbraham subject to Easement to George H. Vakel et ux".

5. Walter F. Markett, Jr. ("Markett") was Town Engineer of the Town of Wilbraham at the time the Tinkham Glen Plan was approved by the Planning Board. According to Markett's affidavit, drawing the 50' Parcel in btween Lots 28 and 29 on the Tinkham Glen Plan, and placing concrete bounds marking the 50' Parcel, were acts done to comply with the specifications of the Planning Board's Rules and Regulations Governing the Subdivision of Land (Defendant's Rules and Regulations) (Exhibit 24). It was Markett's understanding that the way in between Lots 28 and 29 was provided for because it was necessary for access to the land located in Springfield. Defendant's Rules and Regulations require that subdivision plans must provide for access to adjoining property which is not yet subdivided (Exhibit 22).

6. By deed dated November 6, 1973, Liquori and Florian conveyed the 50' Parcel to Defendant. The conveyance was for no monetary consideration, by deed recorded November 13, 1973, at Book 3877, Page 43 (Exhibit 5). The conveyance was made "subject to the right of George H. Vakel and Erna Vakel, their heirs, administrators and assigns, to use said parcel for all purposes for which public streets are commonly used including the right to enter on said parcel to construct, repair, and maintain a way as set forth in . . . (the Agreement)."

7. Also recorded on November 13, 1973, at Book 3877, Page 42 (Exhibit 6), is a deed from Florian and Liquori conveying to Defendant "the right to use for all purposes for which public streets are commonly used, Tinkham Glen and Ladd Lane, as shown on . . . (the Tinkham Glen Plan)."

8. By deed dated January 4, 1974, recorded the same day at Book 3903, Page 77 (Exhibit 8), Liquori and Florian conveyed Lots 8 through 43 on the Tinkham Glen Plan (Exhibit 3), to Quality Life Corporation for $140,000 stated consideration.

9. By instrument dated November 27, 1974 and recorded November 29, 1974 at Book 4074, Page 266 (Exhibit 11), the Vakels released all their interest and rights under the Agreement to Liquori and Florian. Simultaneously, by deed dated November 27, 1974 and recorded November 29, 1974 at Book 4074, Page 267 (Exhibit 12), Liquori and Florian conveyed the Springfield Parcel to State/Maple Inc., a corporation owned by them, for $15,000 stated consideration. There is no mention of the 50' Parcel in Exhibit 12.

10. By deed dated February 23, 1976 and recorded at Book 4313, Page 7 (Exhibit 14), State/Maple Inc. conveyed the Springfield Parcel to Wanda P. Morin ("Wanda") for $23,840 stated consideration. The deed included the following, the "way" referred to being the 50' Parcel:

Together with the right to use the proposed way as shown on a plan bounded Easterly on Tinkham Glen one hundred one and 98/100 (101.98) feet for all purposes which public streets are commonly used by persons lawfully intended (sic) thereto in and over the same. Said plan is recorded in said Registry in Book of Plans 148, Pages 116 through 119, inclusive.

11. The conveyance to Wanda was made in satisfaction of a debt owed by State/Maple Inc., to Wanda's husband Leo, for past services performed. Prior to accepting the Springfield Parcel, Leo went to the Wilbraham Town Hall to see if there was accss to the land, for in his opinion, without access, the land would be useless. Leo viewed the Assessors Map, which depicted a way in between Lots 28 and 29, running from the Springfield Parcel to Tinkham Glen (Exhibit 20). That way is the 50' Parcel.

12. Wanda, her husband Leo, and their sons, Robert, Leo W. and Bruce, formed the partnership of Tinkham Woods Associates, Plaintiffs in this case. Plaintiffs succeeded to the Springfield Parcel by conveyances at Exhibits 15, 17 and 18, each of which included same language as to appurtenant rights in the 50' Parcel quoted above in the deed to Wanda.

13. By deed acknowledged February 16, 1990 and recorded the same day at Book 7390, Page 347 (Exhibit 19), the Vakels assigned all their right, title and interest, if any, in the 50' Parcel to the Plaintiffs, for stated consideration of $1,000.00.

14. We therefore have this history:

Pre-Jan. 8, 1973 Both parcels in common ownership in the Vakels.

Jan.8, 1973 Legal title to both parcels (and equitable title to the Wilbraham Parcel) in Liquori and Florian, equitable title to the Springfield Parcel in Vakels, under the Agreement, which provides for a right of way.

Oct. 12, 1973 Wilbraham Planning Board approves Tinkham Glen Plan, which provides for a right of way.

Nov. 6, 1973 Liquori and Florian convey the 50' Parcel to the Town of Wilbraham, subject to a right of way in the Vakels, their heirs, administrators and assigns.

Jan. 4, 1974 Liquori and Florian convey the Tinkham Glen subdivision (less the 50' Parcel) to Quality Life Corporation, which then develops it in the normal course.

Mar. 27, 1974 Vakels release all their rights under the Agreement to Liquori and Florian, who simultaneously convey the Springfield Parcel to State/Maple Inc. Feb. 23, 1976 State/Maple Inc. conveys the Springfield Parcel to Wanda Morin, from whence it later passes to Plaintiffs.

Feb. 16, 1990 Vakels convey all their right, title and interest in the 50' Parcel to Plaintiffs.

15. Plaintiffs proposed in 1988 to subdivide the Springfield Parcel and took their plans to the Springfield Planning Board, which, on hearing of the position of the Town of Wilbraham as to the 50' Parcel, refused to proceed further until the dispute is resolved.

16. Mrs. Vakel testified that her husband sold only the Wilbraham Parcel to Liquori and Florian and that Liquori and Florian wanted the Springfield Parcel also but they weren't sure; further, that the 50' Parcel easement was established to give the Vakels access if Liquori and Florian decided not to buy the Springfield Parcel. She further testified that her husband received $52,000 for the Wilbraham Parcel and $15,000 for the Springfield Parcel, of which $10,000 was paid in November 1974 and $5,000 in 1975.

17. Florian testified by deposition admitted into evidence by agreement. His memory of the arrangements with the Vakels is vague. He and Liquori sold the entire Wilbraham Parcel to Quality Life Corporation. They had no specific intentions as to the Springfield Parcel; it was merely an afterthought.

18. At the time the 50' Parcel was created, it was the only access to the Springfield Parcel and it remains so.

19. Plaintiffs claim they relied on the Defendant's Assessors Map which depicts the 50 foot wide Wilbraham Parcel as a street, and that they acquired the Springfield Parcel "with the right to use the proposed way" as set forth in the State/Maple Deed (Exhibit 14). Plaintiffs argue an easement was created by express and implied grant appurtenant to Plaintiffs' land.

20. Defendant argues that no easement was created by Exhibit 5, the deed of the 50' Parcel to Defendant, because "an easement cannot be imposed by deed in favor of one who is a stranger to it", citing Hodgkins v. Bianchini, 323 Mass. 169 (1948) and earlier cases. Defendant further argues that any such grant was personal to the Vakels, that reformation is inappropriate because the evidence does not indicate there was a failure of expression of the intent of the parties and that no easement by implication can arise on the deed of the Springfield Parcel to State/Maple because by that time the Town already owned the 50' Parcel.

21. Defendant would seize upon the jurisprudence of an earlier day in a dubious attempt to escape obvious arrangements. Anyone examining title to any of the land involved in this action would have to start with the Vakels and would immediately see (from the recorded Agreement) that the 50' Parcel was destined as a right of way for the Springfield Parcel. Defendant's attempt to characterize Exhibit 5 as running only to the Vakels is belied by the reference to the Vakels, "their heirs, administrators and assigns".

22. The Town's Planning Board approved the Tinkham Glen Plan, which clearly shows the 50' Parcel and its intended purpose. The provision of that on the Plan was, in turn, dictated by the Board's own Rules and Regulations. The 50' Parcel shows on the Town's assessor's maps, although not labelled as a way.

23. An easement in favor of the Springfield Parcel was created over the 50' Parcel by the conveyance to the Town (Exhibit 5) or, if not, an easement by implication or necessity was created when the Wilbraham Parcel was conveyed to Quality Life, leaving the Springfield Parcel otherwise landlocked. If that is not enough, Plaintiffs are "assigns" of the Vakels by virtue of Exhibit 19, the Vakels' assignment of rights. To the extent, if any, that reformation of instruments is necessary to accomplish the foregoing, Exhibit 5 is reformed to include the Vakels as parties to Exhibit 5 and to include an express grant, appurtenant to the Springfield Parcel, of the right to use the 50' Parcel for all the purposes set forth in Exhibit 5.

Judgment accordingly.

exhibit 1