MISC 10-440580

June 12, 2012

Sands, J.


Plaintiff filed its verified Complaint on September 30, 2010, seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment relative to rights in a right of way called Ocean Court (now known as Logan Court) (the "ROW") and damages based on Defendant Jerry's Auto Service, Inc. ("Jerry's") and/or Defendant Helen E. Levesque, Trustee of Middle Street Nominee Trust's ("Levesque") (together, "Defendants") alleged installation of fences in the ROW. On October 4, 2010, Plaintiff filed a Motion for Temporary Injunction seeking to require Jerry's and/or Levesque to remove the fences from the ROW, to prohibit the installation of an additional fencing in the ROW, and to prohibit any parking in the ROW. Such motion included the affidavit of Robert Contreras. The Motion for Temporary Injunction was DENIED on October 13, 2010. Levesque filed its Answer on October 20, 2010. Jerry's filed its Answer on October 25, 2010. A case management conference was held on November 10, 2010.

Plaintiff filed its Motion for Summary Judgment on December 1, 2011, together with supporting memorandum and Statement of Material Facts. Defendants filed their Opposition to Motion for Summary Judgment on January 5, 2012, together with supporting memorandum, and Statement of Additional Material Facts. On January 17, 2012, Plaintiff filed its Response, together with Motion to Strike certain of Defendants' Additional Material Facts. Defendants filed their Opposition to Motion to Strike on March 29, 2012, together with Motion to Supplement Opposition and Affidavit of George Walker. A hearing was held on all motions on April 2, 2012, and the matter was taken under advisement. [Note 1]

Summary Judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419 , 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553; Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Plaintiff owns Lots 1, 2 and 4 in Fairhaven, MA ("Plaintiff Property") as shown on Land Registration Plan 6255C dated August 15, 1939 and prepared by Samuel H. Corse, Surveyor (the "Plan"). Plaintiff purchased Plaintiff Property from a Trustee in Bankruptcy of Sky View Lines, LLC ("Sky View") by deed dated September 4, 2008 (Certificate of Title No. 21901). [Note 2] One of the boundaries of Plaintiff Property is the ROW.

2. Jerry's owns Lots 5 and 6 as shown on the Plan. Jerry's purchased its property by deed dated November 30, 1998 (Certificate of Title No. 18489). One of the boundaries of Jerry's property is the ROW.

3. Levesque owns Lot 3 as shown on the Plan. Levesque purchased its property by deed dated May 20, 1997 (Certificate of Title No. 18022). One of the boundaries of the Levesque property is the ROW.

4. The ROW runs in an east-west direction, abuts all six lots and intersects with Middle Street, a public way. The ROW and all six lots are registered land. [Note 3] The Plan shows the ROW as sixteen feet wide (wider at its western terminus).

5. A chain-link fence ("Fence 1") exists in the ROW which runs in a north-south direction from the boundary of Lots 2 and 3 to the boundary of Lots 5 and 6. [Note 4] Fence 1 was installed by Sky View on August 1, 1998 to prevent access and travel on the ROW. [Note 5] Fence 1 replaced a gate that ran across the ROW, which existed at the time that Sky View purchased Plaintiff Property in 1998. From 1998 to present, Fence 1 has prevented access and travel along Logan Court.

6. On July 30, 2010, Jerry's installed a fence ("Fence 2") in the middle of the ROW, running in an east-west direction. Fence 2 was located west of Fence 1, although it is unclear from the summary judgment record if the two abutted. Fence 2 was subsequently unilaterally removed by Plaintiff.

7. An older fence ran in an east-west direction on the north side of the ROW, and was removed by agreement between Jerry's and a predecessor of Plaintiff at an unspecified date prior to Plaintiff taking title to Plaintiff Property on September 10, 2008. After the removal of the older east-west fence, Plaintiff's predecessor Sky View used the area in the ROW west of Fence 1 for parking. [Note 6]

8. Since Levesque took ownership of Lot 3 in 1997, the area of the ROW between Fence 1 and Middle Street has not been used for travel and access. According to Defendants and undisputed by Plaintiff, this area has seen "continuous and uninterrupted" use since then by Levesque's tenants for parking. *******************************

As a preliminary matter, Plaintiff filed its Motion to Strike Certain Paragraphs of Defendants' Statement of Additional Facts. Based on the evidence as submitted to this court, I ALLOW Plaintiff's Motion to Strike in part, as follows: this court shall strike the following paragraphs: 22, 23, 26, 37 and, in part, 39. These paragraphs relate to the history of Jerry's ownership of its parcel and the east-west fences. Paragraphs 22, 23, and 26 are not material or relevant to the case (and in the case of paragraph 22, erroneous; Levesque took title before Jerry's). Paragraph 37 is not supported by any competent, admissible evidence. Paragraph 39 is allowed to stand insofar as it indicates that Fence 2 was removed; the remainder (describing alleged refusal by Jerry's to sell its lots to Plaintiff) is not relevant and shall be struck. The remaining paragraphs shall not be struck.

The central issue in this case is the determination of rights of the three parties in the ROW. [Note 7] Plaintiff argues that it has the right to use the ROW as access to Plaintiff Property, and thus the right to remove both Fence 1 and Fence 2. Defendants argue that Plaintiff has abandoned its access rights in the ROW by the installation of Fence 1 and by the acquiescence to the parking of cars in the ROW. Defendants also argue that summary judgment is not appropriate because there are material facts in dispute.

The summary judgment record indicates that Lots 1-6 abut the ROW and, as a result, their owners initially had the right to use the ROW. [Note 8] It is long-established - at least for unregistered land - that "when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677 (1965), quoting Casella v. Sneirson, 325 Mass. 85 , 89 (1949).

Recently, however, several decisions of the Court of Appeals have applied this venerable principle to registered land as well, in spite of the general requirement of G.L. c.185 § 53 that a registered parcel be "free from all encumbrances except those noted on the certificate." [Note 9] See Duddy v. Mankewich, 75 Mass. App. Ct. 62 (2009); Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 (2006). The Lane court found an easement by estoppel on a parcel of registered land because the servient and dominant estates were once united in title, the lots involved were described in their certificates of title as bounding on the subject way, and those certificates referenced a subdivision plan, placing the owners on notice that others in the subdivision might have rights in the registered way. See Lane at 439 ("[T]he estoppel giving rise to such an easement occurs by virtue of the language in a deed of conveyance, which language refers to the way as a boundary.").

The facts are similar here. Accordingly, although all of the relevant land is registered and there are no express easements regarding the ROW on any Certificate of Title, the certificates' referencing of the ROW and the common plan are sufficient to find easements granting access over the ROW existed for the benefit of abutting lots (see discussion, supra). So long as such rights continued to exist, they would pass to successors in title per G.L. c. 183 § 15 ("In a conveyance of real estate all rights . . . belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed[.]). See Garrity v. Snyder, 345 Mass. 121 (1962) (applying that section to registered land). [Note 10]

Having established the origin of the rights in question, the present status of the rights can be discussed. The facts indicate that Plaintiff's predecessor in title installed Fence 1 in 1998. Since that time (twelve years), the portion of the ROW between Fence 1 and Middle Street has been used for parking by Levesque. Plaintiff and its predecessors in title have been unable to use the ROW as access to Plaintiff Property since that time. Defendants argue that such facts show that Plaintiff abandoned the use of that portion of the ROW for access. See Lasell College v. Leonard, 32 Mass. App. Ct. 383 (1992) (finding abandonment where abutter to paper street never used it as a way, acquiesced to neighbors driving over it, and built a fence around it).

Abandonment of an easement is a question of intent: "It can be shown by acts indicating an intention never again to make use of the easement in question". Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). Thus "[a]ny deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment." Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n.2 (2004). The court employed this principle in Lasell College, adjudicating a dispute between three landowners over an abutting "paper street." Lasell was found to have not abandoned its easement rights because it had explicitly refused to relinquish them previously, in spite of disuse. Co-plaintiff Iodice, in contrast, showed no such affirmative actions. Iodice not only failed to use the property and acquiesced regarding others' use of the property, but actually constructed a fence barring its own access to the property. See Lasell College, 32 Mass. App Ct. at 390-391. The court thus found intent and abandonment for Iodice, but not Lasell.

Although abandonment is "an issue of fact", Lund v. Cox, 281 Mass. 484 , 492 (1933), the material facts in the present case are not in dispute. Plaintiff's predecessor in title is clearly more like Iodice than Lasell, constructing Fence 1 explicitly "to prevent access and travel" (Affidavit of George Walker at ¶ 10), not using the ROW to access its property, and acquiescing as to the parking in the ROW. While any of these elements, taken individually, might not be sufficient to show abandonment, when taken together they show an unmistakable intent to abandon the easement. [Note 11] See also 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 (2009) (finding an intent to abandon in Defendant's use of paper road as yard for eleven years).

Additionally, Plaintiff requested relief arising from the installation of Fence 2, inasmuch as it interfered with access to Plaintiff Property. This issue becomes moot, based on this court's findings relative to Fence 1 and the apparently undisputed fact that Plaintiff removed Fence 2. [Note 12] In addition, it should be noted that the evidence indicates that the area surrounding Fence 2 has been used for parking by Plaintiff's predecessor in title.

Based on Lasell College, a combination of nonuse of the ROW over a long period of time, acquiescence in the parking use of the ROW by others, and the erection of Fence 1 blocking access to the ROW, all indicate an intent by Plaintiff's predecessor in title to abandon use of the ROW as access to Plaintiff Property, and I so find. Once so abandoned, I find that the right to use the ROW could not pass to Plaintiff, who therefore holds no access rights to the ROW. [Note 13] Absent such rights, I find that Plaintiff has not suffered any cognizable injury as a result of Fence 1.

As a result of the foregoing, I DENY Plaintiff's Motion for Summary Judgment.

Judgment to enter accordingly.


[Note 1] At the hearing, the parties agreed to consider mediation and were given several days to report back to this court. On April 4, 2012, the parties reported back that they declined to mediate.

[Note 2] Sky View purchased Plaintiff Property from W.M.B.C., Inc. by deed dated July 24, 1998 (Certificate of Title No. 18369).

[Note 3] Land Registration Plan 6255A1, dated December 11, 1916 and prepared by Frank M. Metcalf, C.E., shows Lots 1-6 and the ROW as one parcel, prior to subdivision.

[Note 4] The photographs in evidence indicate the location of Fence 1. Defendants do not contest these photographs.

[Note 5] This is shown in an affidavit by George Walker (the "Affidavit"), a principal of Sky View, Plaintiff's predecessor in title. At the summary judgment hearing, Plaintiff suggested the affidavit is invalid on its face because Walker's signature contains middle initials, while the typed text underneath does not. Plaintiff did not file a Motion to Strike with regards to the Affidavit. Moreover, this court does not find a problem with the use of the Affidavit.

[Note 6] Plaintiff's Response to Defendants' Opposition to Plaintiff's Motion for Summary Judgment states, at page 2: "Plaintiff's ancestor in title sought and obtained Jerry's approval before removing the east-west fence and using the opened-up land for parking."

[Note 7] The parties agree that the fee title to the ROW is not an issue in this case.

[Note 8] The summary judgment record does not contain copies of the original deeds out from the common grantor, or disclose any other facts relevant to how the ROW was established or who has title to or deeded easement rights in the ROW.

[Note 9] For a thorough discussion of this development, see generally Anarpet Realty Corp. v. Stutz Motor Car Co., 18 LCR 527 (2010).

[Note 10] As a practical matter, it should be noted that none of the parties object to the fact that all three parties (or their predecessors) initially had the right to use the ROW. Defendants are arguing that such right was lost by abandonment.

[Note 11] I note that Lasell College involved a paper street that had never been used by Iodice for access, while the ROW here was presumably used for access to Plaintiff Property at some point in the past. I find this distinction immaterial in light of the clear intent to abandon by Sky View.

[Note 12] Plaintiff moved to strike this fact on the basis of its relevance, not its veracity. Defendant Jerry's has not brought any claims related to the removal of Fence 2.

[Note 13] At the summary judgment hearing, Plaintiff acknowledged that it had alternative access to Plaintiff Property.