REG 41915-S-1990-11

July 27, 1992

Middlesex, ss.



Plaintiffs filed the Complaint in this matter on November 20, 1990, seeking a determination that a certain clause reserving an "Exclusive Use Easement" on his certificate of title is null and void and that Defendant has no right in or to said Easement.

This matter was submitted on an agreed statement of facts on June 24, 1992, followed by a conference with counsel.

The following facts are not in dispute:

1. Plaintiffs are the owners of a parcel of registered land known as 146 Texas Road in Tewksbury ("Locus"). Said parcel is shown as Lot 2 on Land Court Plan 41915B ("the Plan").

2. Locus was acquired by Plaintiffs, on July 6, 1990, by deed of Joseph D. Germano, and is described in Certificate of Title No. 29381, registered with the Middlesex County, Northern District Registry of Deeds. Plaintiffs and Germano were the only parties to the deed.

3. The said deed and presumably the Certificate of Title contains the following language, "subject to an Exclusive Use Easement . . . as shown on said Plan (41915B)." Lettering on the Plan designates an area marked "Exclusive Use Easement" and indicates the easement is an "Easement for Richard C. Lefebvre & his successors in interest."

4. Defendant, Lefebvre owns land on Arkansas Road in Tewksbury adjacent to that portion of Plaintiffs' land marked "Exclusive Use Easement". Said land of Defendant is shown in part on the Plan.

5. Defendant has never received nor is there any record of a grant of said Easement.

Under the law in this Commonwealth, it is clear that Defendant has no rights in as to said easement inasmuch as he has never received a grant of same nor was he a party to the deed by which it was attempted to be created.

An easement cannot be imposed by deed in favor of one who is a stranger to it. Hodgkins v. Bianchini, 323 Mass. 169 , 172 (1948) and cases cited; Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 477 , 481 (1989).

Accordingly, Defendant has no right, title or interest in the "Exclusive Use Easement" as shown on Land Court Plan Number 41915B and said Defendant is hereby ordered to remove any and all structures or other property of his from said Easement area within 30 days of the final judgment in this matter.

Judgment accordingly,