MISC 11-449974

August 2, 2012

Sands, J.


Plaintiff Costa Development, LLC, filed its unverified Complaint on July 1, 2011, pursuant to the provisions of G. L. c. 231A, § 1 and G. L. c. 185, § 1, seeking a declaratory judgment and injunctive relief relative to the validity of two easements involving the installation of a water line and a drainage basin across property owned by Defendant John Pyers. Plaintiff also alleged breach of contract, anticipatory breach of contract, promissory estoppel, interference with expected business advantage, and damages relative to G. L. c. 231, § 6F. [Note 1] Defendant John Pyers filed his Answer and Counterclaim on August 23, 2011, also alleging damages pursuant to G. L. c. 231, § 6F. [Note 2] A case management conference was held on August 25, 2011. Plaintiff filed its Answer to Counterclaim on August 12, 2011. Pawtucket filed its Answer on September 14, 2011.

Plaintiff filed its Motion for Partial Summary Judgment and Motion for Entry of Separate and Final Judgment on March 7, 2012, together with supporting memorandum, Statement of Material Facts, Affidavits of Michael Costa (two) (principal of Plaintiff), Matthew D. Slepkow, Esq. (attorney for the Pyers and for Pawtucket during the Pyers' purchase of ANR1, as hereinafter defined, ("Slepkow")), and Robert G. Funke, Esq. (attorney for Plaintiff), and deposition transcripts of John Pyers, Jeanne Pyers and Michael Costa. [Note 3] Plaintiff also filed its Motion to Strike certain exhibits submitted by the Pyers. The Pyers filed their Opposition to the summary judgment motion on March 7, 2012, together with supporting memorandum. On March 29, the Pyers filed their Motion to Strike certain exhibits of Plaintiff, Opposition to Plaintiff's Motion to Strike, and Affidavit of John Pyers. A hearing was held on all motions on May 21, 2012, and the matter was taken under advisement.

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

1. Plaintiff owned property located at 1370 Newman Avenue, Seekonk, MA, containing 116,962 square feet. Plaintiff divided its property pursuant to a two lot plan of the property titled "Approval Not Required Plan 1370 Newman Avenue, Seekonk MA" dated August 8, 2008, revised November 13, 2008 (with a note stating "Lot Configuration/Easements") [Note 4] and prepared by Insite Engineering Services, LLC (the "ANR Plan"). [Note 5] The ANR Plan shows a "20' Wide Water Easement" (the "Water Easement") with dotted lines running from Newman Avenue across ANR1 to ANR2, and an area titled "Drainage Easement" (the "Drainage Easement") on ANR1 without any line designation. The "Drainage Easement" seems to partially lie on ANR2. The ANR Plan received approval from the Seekonk Planning Board (the "Planning Board") on November 17, 2008. The ANR Plan was recorded with the North Bristol Registry of Deeds (the "Registry") at Plan Book 472, Page 33 on July 6, 2009.

2. Plaintiff filed a Definitive Subdivision Plan (the "Subdivision Plan") titled "Ricard Street Extension in Seekonk, Massachusetts" dated August 20, 2008 and revised December 3, 2008, and prepared by Insite Engineering Services, LLC, for a subdivision of ANR2 into three subdivision lots. The Subdivision Plan had the Water Easement and the Drainage Easement delineated on it. [Note 6] The Planning Board approved the Subdivision Plan on November 18, 2008. [Note 7] The Summary Judgment record does not disclose whether it was appealed.

3. Plaintiff and John Pyers executed a Purchase and Sale Agreement (the "Agreement") with respect to Plaintiff's sale of ANR1 on September 23, 2009. The Agreement provided that ANR1 was free from encumbrances except "[e]asements, restrictions and reservations of record."

4. By deed ("Deed 1") dated February 4, 2010, and recorded with the Registry at Book 18598, Page 291, Plaintiff deeded ANR1 to John Pyers. Deed 1 referenced the ANR Plan. A Building Plan prepared by Paul D. Carlson ( the "Building Plan") was initialed prior to the closing on ANR1. [Note 8] The Building Plan designated a "Water Easement" and a "Drainage Easement Pond." The Building Plan also showed a Sediment Basin in the location of the Drainage Easement Pond. [Note 9] Matthew Slepkow, Esq., the attorney for John Pyers and his mortgagee Pawtucket, filed a title report and gave a title commitment from Chicago Title Insurance Company, in both of which documents he reported that ANR1 was subject to the Water Easement and the Drainage Easement.

5. John Pyers admitted that, at the closing, he saw the Subdivision Plan which described both easements.

6. By deed ("Deed 2") dated February 8, 2010, John Pyers deeded ANR1 to John Pyers and Jeanne D. Pyers, as tenants by the entirety. Deed 2 referenced the ANR Plan.


Plaintiff filed a Motion to Strike Exhibits 20 and 21 from the record, arguing that such exhibits are not under oath and are not supported by any Affidavit. [Note 10] Exhibit 20, an undated plan showing ANR1 and ANR2, is not supported by any evidence, and its validity is refuted by Affidavit of Plaintiff. As a result, I shall strike Exhibit 20. Exhibit 21, which contains four photographs, is also not supported by any evidence or Affidavit and the photographs have not been authenticated. As a result, I shall strike Exhibit 21.

Plaintiff argues that the Water Easement and the Drainage Easement are valid easements which were created by reference in Deed 1 to the ANR Plan. Plaintiff contends that the intended use of the two easements were to supply utilities to ANR2 as required by the Subdivision Plan. The Pyers argue that there was no express grant of either easement to Plaintiff. They also argue that Jeanne Pyers is not bound by the easements because she was not a party to Deed 1.

The Supreme Judicial Court (the "SJC") has held that any reference made to a plan in a deed "becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Labounty v. Vickers, 352 Mass. 337 , 344 (1967). Furthermore, if an easement is not fully described or unclear, the courts may determine the details using the evidence before them. Dunham v. Dodge, 235 Mass. 367 , 371 (1920). In Dunham, the SJC stated that when the scope of an easement is not specifically defined, the court may consider "the situation of the parties, the character and configuration of the land, the purposes for which it was then used, and all the [relevant] circumstances [and] reference must be had to what was in the minds of the parties at the time of the grant." Id. at 372. The existence of an easement "'whether by grant or by reservation must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.'" Labounty, 352 Mass. at 344. Clearly when ambiguity exists with regard to easements, the court may review extrinsic evidence to determine the precise nature of what rights were conveyed.

In the case at bar, Deed 1 into John Pyers referenced the ANR Plan and the ANR Plan referenced both the Water Easement and the Drainage Easement. The Water Easement is delineated with specific metes and bounds as to its location. It runs from Newman Avenue, a public street, across ANR1 to ANR2. John Pyers seems to concede that a Water Easement exists as he stated that Plaintiff told him he intended to install a "water line" on ANR1. Therefore, as a result of the foregoing I find that Plaintiff reserved a Water Easement on ANR1.

The Drainage Easement is not clearly delineated as to its exact location but is clearly referenced as being located in the northeast corner of ANR1. Case law demonstrates that this is sufficient to reserve an easement. See Reagan v. Brissey, 446 Mass. 452 (2006) (finding that easement existed in case where deed made reference to plan containing easements) . Compare Patel v. Planning Board of North Andover, 27 Mass. App. Ct. 411 (1989). In Patel, a trial court judge found that a reference to a recorded plan was not sufficient to create an easement. However, this conclusion was reached by the court's consideration of the intention of the parties thereby finding that the intent to create an easement was lacking. I find no insufficiency of intent in the case at bar. In their depositions both Jeanne Pyers and John Pyers indicated that Plaintiff had told them before closing the sale of ANR1 that a drainage easement would be constructed on ANR1. Additionally, John Pyers acknowledged that he was under the impression that his lot (ANR1) would be used to take water "from the three properties [ANR2] behind my property [ANR1] and carry it to the ditch on the other side of [the street]." Therefore, I find that Plaintiff reserved a Drainage Easement on ANR1.

There seems to be further confusion over what kind of Drainage Easement was reserved, more specifically whether the Drainage Easement is for a pond or a ditch. John Pyers initialed the Building Plan that clearly showed a "Drainage Easement Pond" and a "Sediment Basin" on his lot prior to closing. John Pyers asserts that Michael Costa told him that he planned to place a "ditch" on his property, but John Pyers could not provide an explanation as to why the Building Plan he initialed stated "Drainage Easement Pond." Even if the Drainage Easement was not specifically defined as to its dimensions and location on the ANR Plan, the Building Plan initialed at the closing showed the location of the Drainage Easement Pond as being tied into the Drainage Easement. [Note 11] It would be puzzling that Plaintiff would refer to the drainage easement as a "pond" on the Building Plan if he had intended it to be a ditch as is alleged by John Pyers, and there is nothing in the record to substantiate this claim. Additionally, while a drainage easement would be required for Plaintiff to construct either a drainage pond or a drainage ditch, the word "POND" is written directly below "DRAINAGE EASEMENT." Therefore, I find that the Plaintiff reserved the Drainage Easement on ANR1 for a Drainage Pond.

Plaintiff offers an alternative theory that the two easements, if not express, are implied easements. Addressing this matter is not a prerequisite to reaching this court's conclusion but I feel that a clarification is warranted. In cases involving implied easements, the focus is:

generally placed on a particular prior use of one parcel by the now separately-owned parcel, the continuation of which is implied as being what the parties intended. 'Such interests have been recognized when land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonable ascertainable and reasonably necessary for the enjoyment of the other party.' Bedfordor Ltd. Partnership v. Forgione, 69 Mass. App. Ct. 1113 (2007).

Implied easement cases require a prior use that provides the basis for finding that an easement exists. In the case at bar there was no prior use of ANR1 for drainage that is indicated in the record to allow the court to conclude that an implied easement exists. Therefore, I find that Plaintiff's argument that implied easements exist fails. [Note 12]

John Pyers raises the issue of notice, claiming that he had no actual notice of the two easements. These allegations are unfounded. [Note 13] According to the record before this court, the Building Plan, which showed both the Water Easement and the Drainage Easement, was initialed at the closing by both Michael Costa and John Pyers. Furthermore, the Agreement between Michael Costa and John Pyers contained a clause that ANR1 was sold subject to easements of record and both easements were shown on the previously recorded ANR Plan. This recorded ANR Plan clearly shows a "DRAINAGE EASEMENT POND" on ANR1 in the location indicated by Plaintiff and is directly referenced by Deed 1. Additionally, Slepkow confirms that he provided John Pyers with a Title Report that mentioned "water and utility easements as set forth on plat." Even if we accept John Pyers' argument claiming a lack of actual notice as true, despite the significant weight of evidence against it, the recorded ANR Plan is sufficient to indicate that John Pyers was on constructive notice of both easements. Furthermore, John Pyers admits that Plaintiff told him he was planning on installing "a water line and a drainage ditch" on ANR1 for the benefit of the Subdivision demonstrating that John Pyers was aware of a drainage-related easement. Even a simple glance at the Building Plan would disclose the intention to create a pond by the words "DRAINAGE EASEMENT POND." There is no basis for John Pyers' claims of a lack of actual notice because he initialed the Building Plan that showed a Water Easement and Drainage Easement. Even if we assume that he genuinely missed both easements on the Building Plan that he initialed, Deed 1 and the recorded ANR Plan were sufficient to place him on constructive notice of the easements. Therefore, I find that John Pyers had actual notice of both easements. Alternatively, I also find that recorded documents were sufficient to place John Pyers on constructive notice of both easements.

The Pyers argue that even if there were express easements, such easements violate the Seekonk Subdivision Rules and Regulations, which provide as follows:

Easements for utilities across lots, centered on rear or side lot lines, shall be provided where necessary and shall be at least twenty (20) feet wide. Such easements will be submitted with and be part of the Definitive Plan and recorded as a separate document with the Registry of Deeds.

However, the Planning Board approved the Subdivision Plan showing the two easements and this plan was not appealed. Further, the case at bar is a contract action between the two parties. As a result, I find that arguments regarding the application of the Seekonk Subdivision Rules and Regulations to the Water Easement and the Drainage Easement are not relevant.

John Pyers also alleges that Slepkow, his closing attorney in the transaction conveying ANR1, made representations that there were "no easements" or that there were easements that were "unenforceable." Any exchange that occurred on this matter between John Pyers and Slepkow is not relevant to the issues in this case, and I so find. Furthermore, Jeanne Pyers' arguments on the two easements are moot. Jeanne Pyers was not a party to Deed 1 and there were no representations between her and Plaintiff. As a result, I find that Jeanne Pyers, through Deed 2, took property rights subject to whatever easements her husband took pursuant to Deed 1. As a result of the foregoing, I ALLOW Plaintiff's Motion for Partial Summary Judgment.

Judgment to enter accordingly.


[Note 1] Plaintiff filed its Amended Complaint on September 2, 2011, adding Jeanne D. Pyers (together with John Pyers, the "Pyers") and Pawtucket Credit Union ("Pawtucket") as Defendants. Pawtucket has not appeared at any hearings.

[Note 2] The Pyers filed their Answer and Counterclaim to the Amended Complaint on September 8, 2011, also alleging damages pursuant to G. L. c. 231, § 6F.

[Note 3] Plaintiff titles his motion "Partial Summary Judgment" because he leaves open counts VII and VIII relative to its G. L. c. 231, § 6F claim and its interference with business advantage claim. This court does not have jurisdiction over the interference with business advantage claim. Plaintiff may bring a separate c.231, § 6F motion after a decision is rendered in this case.

[Note 4] Attached to Deed 1 conveying ANR1 from Plaintiff to John Pyers is "EXHIBIT 'A'" that mentions the date that the ANR Plan was revised, making specific reference to "Lot Configuration/Easements." It seems that Insite Engineering Services, LLC. wrote this in regard to the revision made on November 13, 2008 as noted supra.

[Note 5] The two lots are Lot ANR1 ("ANR1") with frontage on Newman Avenue and containing 38,086 square feet and Lot ANR2 ("ANR2") with frontage on Ricard and Alfred Streets and containing 78,876 square feet. ANR1 and ANR2 are abutting lots.

[Note 6] Sheet 2 shows the reference to the Water Easement and the Drainage Easement. Sheet 3 delineates the location of the Pond and the Sediment Basin in the location of the Drainage Easement.

[Note 7] The record does not contain a copy of the Subdivision Plan as executed by the Planning Board. The Joint Exhibit List states that such plan is the "approved" plan and the Minutes of the Planning Board confirm this. The Summary Judgment record does not disclose whether the Subdivision Plan was recorded after being approved.

[Note 8] There is no evidence in the Summary Judgment record that the Building Plan was ever recorded.

[Note 9] In her deposition, Jeanne Pyers stated that Plaintiff "told us [the Pyers] he wanted the drainage easement and I asked him where the easement was and he said it was along the fence. He didn't show us. He said it would be along the fence, a narrow ditch along the fence."

[Note 10] Exhibits 20 and 21 were submitted by John Pyers and Jeanne Pyers in their Opposition To Plaintiff's Motion For Partial Summary Judgment And Final Judgment Pursuant To Rule 54(B).

[Note 11] Slepkow acknowledged that he wrote on the Building Plan the following words: "This plan shows the easement which is the only easement on the property. This was information provided from Costa Development." This writing is not dated, but Slepkow represented that it was added approximately seven months subsequent to the closing. It is unclear why Slepkow wrote easement in the singular but this is irrelevant to what John Pyers knew and intended before and during closing as evidenced by the record, discussed supra.

[Note 12] Plaintiff also alleges promissory estoppel as an alternative legal theory arguing that John Pyers, by acceptance of Deed 1, promised Plaintiff that the two easements were in existence, that Plaintiff relied on the promise, that John Pyers has now breached the promise, and that Plaintiff is damaged by such breach. The doctrine of promissory estoppel applies when, "a promise was made that the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires." Restatement (Second) of Contracts §90 (2012). In this case, John Pyers knew of the existence of some type of water and drainage easement, accepted Plaintiff's conveyance subject to the easements and in doing so, should have expected that Plaintiff would rely on such a promise to plan future activities associated with the Subdivision around such promises. This is evidenced by the fact that Plaintiff hired a team to stake out the exact boundaries of the drainage pond on ANR1 and by Plaintiff's deposition in which he stated that a re-routing would be financially unsustainable, implying that his routing plan was based upon the assumption that the aforementioned easements existed as agreed by both parties. Furthermore, the deposition of Jeanne Pyers demonstrates that the Pyers were aware that easements for the benefit of the Subdivision existed on their property and are currently denying their prior acceptance and promise to allow the easements to be installed. If the doctrine of promissory estoppel was applied, it seems that Plaintiff would be entitled to recovery in this case. However, based upon this court's decision, this argument is moot.

[Note 13] In Massachusetts, "[a] conveyance of an estate in fee simple [...] shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in § 13 of chapter thirty-six [...] is recorded in the registry of deeds for the county or district in which the land to which it relates lies." G. L. c. 183 § 4.