In this case I am called upon to decide the scope and vitality of various easements held as a matter of registered title by plaintiff Clifford J. Martin (Martin), easements appurtenant to his parcel of registered land at the Medford and Somerville municipal line. I must determine whether defendant Simmons Properties, LLC (Simmons) has interfered impermissibly with Martins registered rights and easements, appurtenant to his registered land parcel, which is shown on relevant plans of this court as Lot 3A. I must say whether or not Simmons easement, granting the defendant the right to use the portion of a way known as Way E on Martins property, is extinguished; and whether Way E was intended by the original parties to Document 166939, the document granting easement rights to the owners of the parcels involved here (known as Lots 3A, 4A, 10, and 12), to have Way E reach into the area described by the parties as the unhatched area (Unhatched Area).
I must address a variety of claims lodged by Martin against Simmons. Martins assertions of interference involve a number of changes and improvements to land Martin says is subject to his easement rights, including his allegations of: 1) encroachments placed within the limits of the way shown on the plans as Way A, particularly: the entrance foyer to the building at 196 Boston Avenue; a depressed loading dock with its associated surrounding railings and curbing; a depressed stairwell including surrounding canopy, railings and curbing; curbing and landscaping placed throughout Way; a utility pole; and the parking of vehicles on Way A; 2) parking of vehicles on Way E; and 3) the placement of fill on Lot 3A and within the limits of rights of way denominated Way A and E on the plans. Martin also alleges that there is 4) an obligation by Simmons to restore to use, for the benefit of Martin and his parcel, a six inch fire sprinkler pipe and one and a one-quarter inch domestic water pipe; 5) an obligation by Simmons to restore a four inch sewer pipe; and 6) an obligation by Simmons to restore eighteen and twenty-four inch drains.
I. General Undisputed Facts
The current procedural posture of this case is addressed more fully below. After earlier proceedings in this case on summary judgment, which led to initial rulings by the court as to some questions as a matter of law, and the preservation of other issues requiring the taking of evidence, the matter came on to be tried to the court.
There are a number of facts which do not to me appear to be in any legitimate dispute, based on the stipulations of the parties at or prior to trial and the lack of controverting evidence at the trial. As to the remaining questions of fact, I have served as the trier of fact in the absence of a jury. I find the following facts to be in all pertinent respects agreed to by the parties, and without substantial dispute. I reserve for later in this Decision the specification of further facts germane to the resolution of the issues before me:
Martin owns a parcel of property located at 200-R (rear) Boston Avenue, on the Medford/Somerville line, in Middlesex County, Massachusetts. Martin acquired his parcel on or about January 15, 1969 by Transfer Certificate of Title No. 128860, issued by the Middlesex (South District) Land Registration District (District) of this court, and maintained there in Book of Registrations 774, Page 110. (Martin is the surviving joint tenant among the owners receiving that certificate.) The parcel Martin owns appears as Lot 3A on Land Court Plan No. 6199J (J Plan). (A reduced size copy of the J Plan is attached to this Decision). In 1940, at the time the J Plan was created, and the rights and easements at issue in this litigation were conferred, Lot 3A was industrial in nature. It remains so to this day, although Lot 3A has been vacant for approximately eighteen years, including all sixteen years that Simmons has owned the neighboring parcels. A wooden, three-story structure that once stood on Lot 3A was destroyed by fire in 1991.
Lot 3A is located on a larger block of land bounded to the north by Mystic Valley Parkway, to the east by railroad tracks, to the west by Boston Avenue, and to the south by North Street. This entire block of land, including Martins parcel, has had its title registered and confirmed by this court. The title is as reflected by the owners transfer certificates of title issued by the District. All filing references are to registrations made in and by the District.
Simmons holds title to a parcel of land under Transfer Certificate of Title No. 226844, lodged in Book of Registrations 1264, Page 94, by virtue of a quitclaim deed filed for registration as Document No. 1253760. This parcel appears as Lot 4A on the J Plan. In 1940, at the time the J Plan was created (it was authorized by the court December 11 of that year, and filed with the District January 20, 1941), and the rights and easements at issue in this litigation were conferred, Lot 4A was industrial in nature; it remains mostly industrial and commercial in its use to this day. Lot 4A was acquired by an affiliate of Simmons in or around January 1993. A building currently known as 196 Boston Avenue stands on Lot 4A; however, the J Plan shows three principal structures. Currently, only the principal structure, known as 196 Boston Avenue, remains; the other smaller, square-shaped structures on Lot 4A that formerly were attached to the principal structure were demolished in 1993.
Simmons also holds Transfer Certificate of Title No. 226845, Book of Registrations 1264, Page 95, under the quitclaim deed filed for registration with the District as Document No. 1253761 on February 12, 2003. This certificate is as to land that is Lot 1B on Plan No. 6199H and Lot 20 on Plan No. 6199O. Lot 20 resulted from the merger in 1991 of Lot 10 and Lot 12 on Plan 6619K. An affiliate of Simmons acquired Lot 10 in or around January 1993. The building currently known as 200 Boston Avenue stands on Lot 10. This affiliate also acquired Lot 12 in or around January 1993. A parking deck currently stands on a portion of Lot 12, immediately in front of the building at 200 Boston Avenue. Lots 10 and 12 appear on Plan 6199K. In 1940, at the time the J Plan was created, and the rights and easements at issue in this litigation were conferred, Lot 10 was industrial in nature, and its use remains mostly industrial and commercial to this day.
Martins Transfer Certificate of Title, 128860, provides that his Lot 3A is subject to and has the benefit of rights, easements &c. as set forth in Certificate 34185 and in Documents 161827, 166939 and 166941; only two of these documents are relevant for purposes of this action, Documents Nos.166939 and 166941. Document No. 166939 is a deed dated August 21, 1940 from grantor Textile Realty Company to grantee Russell Box Company for three lots of land on the subject block: Lots 4A, 10, and 12, each of which are currently owned by Simmons. Document No 166941 is a deed of what is now Martins Lot 3A, dated August 12, 1940, from grantor Textile Realty Company to Martins indirect predecessor-in-title, Peter Boshco.
Document No. 166939 states that the said premises [Lots 4A and currently Lot 20] are further conveyed subject to and with the benefit of the following additional rights and easements. It then sets out eight different rights and easements, only five of which are relevant to this litigation. Martins rights in these easements exist by express grant and reservation.
The first relevant easement, located in paragraph one on page four of Document No. 166939, provides the owner of Lot 4A [a] right of way in common with Lot 3A on [the J Plan] over rights of way A, B, C, and E shown on said [J] Plan. Only ways A and E are relevant in this matter. Paragraph one further states that [t]he provisions of this paragraph shall impose no obligation upon the owner of Lot 3A to maintain the platform over which right of way E runs but shall give the purchaser the right to go upon said Lot 3A to maintain or repair said platform. This platform is located on the J Plan and the preceding 1939 Land Court Plan No. 6199-I (I Plan).
As shown on the J Plan, Way A runs easterly from Boston Avenue toward the Boston and Maine Railroad property line, passing between two buildings currently owned by Simmons: 196 Boston Avenue and 200 Boston Avenue. The width of Way A fluctuates as one travels its length. Vehicular traffic travels through and along Way A each day, serving the varied occupants of these two substantial buildings. Improvements and features existing currently on Way A (as to many of which Martin complains in this suit) include curbing and landscaping placed at the entrance to Way A from Boston Avenue, two utility poles, an entrance foyer to 196 Boston Avenue, a depressed loading dock adjacent to the elevator shaft attached to 196 Boston Avenue, a depressed stairwell with handrail and canopy that serves as an entrance to 200 Boston Avenue, spaces marked and used for vehicle parking, and areas altered in grade and appearance by the placement of fill. Martin does not seek to have the elevator shaft adjacent to 196 Boston Avenue removed; this is so because the shaft exists today as it was depicted on the J Plan, when Way A was granted in 1940.
As shown on the J Plan, Way E is located along the northern property line of Lot 4A and the southern property line of Lot 3A. A majority of Way E is located on Lot 3A, although a small portion of Way E is also located on Lot 4A. Martin and Simmons disagree as to the easternmost boundary of Way E, particularly whether Way E ends at the southern boundary line of Lot 3A, the line above which 65.76 is written on the plan, or whether Way E extends into and includes the area characterized as the Unhatched Area. The Unhatched Area is bounded to the west by Way A, where a dashed line extends southerly from the southern property line of Lot 3A to another dashed line located northeast of 200 Boston Avenue and extending easterly to the land of the Boston & Maine Railroad, on the south by the 200 Boston Avenue building and a dashed line, on the east by the land of the Boston & Maine Railroad, and on the north by Martins Lot 3A. The rights of way on the J Plan and the preceding I Plan are distinguished by hatching. On the I Plan the Unhatched Area is hatched while on the J Plan the Unhatched Area is not hatched. Martin seeks removal of fill placed upon the Unhatched Area in 1993.
The second relevant easement, located in paragraph two on page four of Document No. 166939, grants to the owner of, among others, Lots 3A and 4A the right to maintain and use the four-inch (4) and six-inch (6) sewers leading southwesterly across Lots 4A and 7 on... [the J] Plan to Boston Avenue, a portion of which sewers is shown on said Plan. Since the fire that destroyed Martins building on Lot 3A in 1991, Martin has not used either of the sewer pipes, attempted to connect to either of the pipes, or been told by Simmons that he would not be allowed to connect to either of the pipes.
The third relevant easement, located in paragraph three on pages four and five of Document No. 166939, reserves for the benefit of the owner of Lot 3A the right to draw water through the existing water pipes serving the buildings upon said Lot 3A where they cross the premises above described [Lot 4A], provided that the owner of said Lot 3A shall pay the cost of said water and the cost of properly metering the same. There are two water pipes at issue: a one and one-quarter inch water pipe and a six inch fire sprinkler pipe. The six inch fire sprinkler pipe had frozen and burst prior to Simmons acquiring Lot 4A in 1993 and was never repaired by Simmons predecessor-in-title or anyone else. Since the 1991 fire that destroyed Martins building on Lot 3A, Martin has not used either of the water pipes, attempted to connect to either of the pipes, or been told by Simmons that he would not be allowed to connect to either of the pipes.
The fourth relevant easement, located in paragraph five on page six of Document No. 166939, grants the owner of Lot 3A the right so far as the Grantor can lawfully convey the same, in common with the Grantor and all others entitled thereto to discharge water into the eighteen inch (18) and twenty-four inch (24) drains leading, in part across said premises [Simmons property], northwesterly from North Street to Mystic River Reservation, portions of which drains are shown on said Plans. The drain openings, or receptacles, for the twenty-four inch drain were covered by approximately four feet of fill, which was placed on Lots 3A and 4A in or around 1993. Martin knew about the placement of the fill in November 1993, and maintains that said fill, which still exists on the property, permanently harmed his land. The receptacles for the eighteen inch drain were covered by asphalt in 1993.
The fifth relevant easement, located in paragraph seven on page six of Document No. 166939, reserves for the benefit of Lot 3A the right to lay and maintain water, sprinkler, gas and sewer lines and electric lines or conduits in any of the rights of way shown on... [the J] Plan. Simmons has not interfered with any of the rights set forth in paragraph seven of Document No. 166939.
Martin is not seeking to recover money damages from Simmons for any of the acts of interference Martin alleges in his Verified Complaint. Simmons does not contest the continued existence of Martins easement rights as set forth in the preceding paragraphs and has reaffirmed that, to the extent he wishes to avail himself of those rights, Martin has been, and remains, free to do so.
II. Further Findings of Fact.
On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the parties, I further find the following facts:
Location of the Easements
Most of the easements in dispute in this action are located as the parties essentially agree, and as set forth above. I make the following additional findings based on my assessment of the evidence presented to me as trier of fact, including supplemental findings with regard to the easements, their locations, and the facts relative to the claims of encroachment onto those easement areas which Martin asserts in this litigation:
A. Further Description of Way A
The width of Way A fluctuates as one travels its length, but the boundaries of Way A are delineated on the J Plan. Way A, as laid out and depicted on the J Plan, is bordered to the west by Boston Avenue and to the east by a dashed line that extends southerly from the southern property line of Lot 3A to another dashed line located to the northeast of 200 Boston Avenue that then extends easterly to the land of the Boston & Maine Railroad. Way A is bordered to the north by the southern boundary lines of Lots 9 and 4A and to the south by the northern boundary lines of Lots 1B and 20. At the southwestern corner of one of the now demolished buildings adjacent to the 196 Boston Avenue building, Way A turns ninety degrees to the north where it is bordered by one of the now demolished buildings adjacent to 196 Boston Avenue to the west, the eastern boundary of Way A as described above to the east, and the southern boundary line of Lot 3A, noted by the number 65.76, to the north. At no point along its length is the width of Way A actually open to vehicular travel at the time of trial less than nineteen feet.
B. Further Description of the Six Inch Fire Sprinkler Pipe and the One and One-Quarter Inch Domestic Water Pipe Easements
The historical locations of the disputed sprinkler pipe and domestic water pipe were generally as shown on the plan entitled American Woolen Company, Boston, Mass., Plan of Land in Medford and Somerville,dated May 10, 1939 (with subsequent revision dates) which is Exhibit 36 (J Plan Linen). It is from the J Plan Linen that the J Plan, the so-called decree plan approved by the court, was prepared. The exact location of the two water pipes as they connect to what has become Martins property is not depicted on the J Plan Linen. The record, however, indicates that the sprinkler pipe was connected to an eight inch water pipe that extends along Way A from Boston Avenue and turns into the basement of 196 Boston Avenue where Right of Way A is written on the J Plan Linen. This eight inch water pipe is labeled as 8" Water (Sprinkler). While the eight inch water pipe ends approximately in the center of Lot 4A on the J Plan Linen, the evidence shows that where the eight inch water pipe ends on the J Plan Linen is the location of a distributor that split the water into three pipes, one of which is a six inch water pipe that supplied water to the sprinkler system on Lot 3A. The place where the six inch water pipe enters Martins building is located on the J Plan Linen just north of where the legend Right of Way E is written. The six inch water pipe is depicted on this plan by two parallel lines and labeled 6" Sprinkler.
As for the one and one-quarter inch domestic water pipe, the evidence indicates that water was supplied from a pipe that ran through the 200 Boston Avenue building, through a tunnel under Way A, into the basements of the now demolished buildings on Lot 4A, and into the basement of the now demolished building on Lot 3A. These points of reference can be located on the J Plan Linen. The 200 Boston Avenue building is located where the number 10" (for Lot 10) appears and the tunnel which emanates from that building is depicted by two dashed lines and is labeled Tunnel. The tunnel connects 200 Boston Avenue with one of the now demolished buildings on Lot 4A, illustrated by a rectangular square. The location of the entrance of the one and one-quarter inch domestic water pipe into the basement of the now demolished building on Lot 3A is marked by two parallel dashed lines above the dimensions S 48° 16' 48" E and labeled 1 1/4" Steam Supply.
C. Location of the Four Inch Sewer Pipe Easement
The location of the four inch sewer pipe as it enters the now demolished building on Lot 3A is not depicted on the J Plan Linen, but Martin describes the sewer pipe as running through the basements of the two now demolished buildings on Lot 4A and into the basement along the southeast portion of the now demolished building on Lot 3A. The J Plan and the J Plan Linen also indicate a sewer easement along Way A beginning at Boston Avenue with the J Plan Linen further indicating a five inch sewer line leading from Way A into the basement of one of the now demolished buildings on Lot 4A. The remaining portion of the sewer line leading from Lot 4A into Lot 3A is not depicted on either the J Plan or the J Plan Linen.
D. Location of the Eighteen and Twenty-Four Inch Drain Easements
The eighteen and twenty-four inch drain lines are located on the J Plan Linen in Way A. The eighteen inch drain emanates from a circle located to the north of the northeast corner of the now demolished building on Lot 4A and travels southwesterly onto Lot 10. The twenty-four inch drain extends northwesterly from Way A to Lot 3A, beginning at a circle located northeasterly of the tunnel that runs under Way A and near the measurement Rad. 150.00. The drain then travels across Lot 3A to the boundary line between Lot 3A and the Boston and Maine Railroad. The grates, or drain covers, that are referenced in the testimony are located on the J Plan Linen. The first grate is depicted by a circle on Way A near the entry Rad. 150.00. The second grate referenced is depicted by a circle about an inch to the northeast of the two buildings that have been demolished on Lot 4A.
E. Placement of Fill on Lot 3A, Way A, and Way E
Fill was placed on parts of Ways A and E, and Lot 3A. The location of the fill is depicted in exhibit fifty, three photographs illustrating the placement of the fill. [Note 1] Exhibit fifty shows that the fill is placed in the area where Ways A and E and Lot 3A meet. This location can be found on the J Plan Linen to the north of one of the now demolished buildings on Lot 4A in the area marked by the dimension S 48° 16' 48" E.
III. Procedural Posture
Martin commenced this action on August 3, 2007; Simmons answered the complaint on August 27, 2007. Martin then filed a Motion to Amend Verified Complaint on March 10, 2008 with Simmons Opposition to Martins Motion to Amend Verified Complaint filed on March 14, 2008. A further filing by Martin to clarify and expand his basis for requesting leave to amend the verified complaint was made on March 26, 2008. The motion seeking amendment of the verified complaint was denied on April 8, 2008; the court concluded that Martins amendment, which would assert rights under earlier, 1917 easements, would be futile; the rights had already been extinguished by merger of the benefitted estates. Discovery closed on April 11, 2008.
The parties filed cross-motions for summary judgment. After hearing, on January 12, 2009 the court issued its ruling on summary judgment, granting in part Martins Motion for Summary Judgment and granting in part Simmons Motion for Summary Judgment. Simmons filed a motion for reconsideration, which the court denied on March 23, 2009. Nothing heard since in this case, including at trial, leads me to question or alter the rulings made on summary judgment.
At a pretrial conference held on May 22, 2009 the court allowed Martins motion, filed on May 12, 2009, to dismiss his claim regarding interference with the six inch sewer easement. Simmons then filed a Motion in Limine to Preclude Expert Testimony and a Motion in Limine to Strike Martins Claim Regarding the Six Inch Sewer Connection on June 29 and June 30, 2009, respectively. The motions in limine were heard on July 28, 2009 at which time the court allowed Simmons Motion to Preclude Expert Testimony by Martin. No arguments were heard concerning the six inch sewer connection because the issue was moot in light of the courts allowance of Martins motion to withdraw this claim.
The trial was held on August 27 and August 28, 2009 in Boston. A court reporter, Carol Kusinitz, was sworn to transcribe the testimony and proceedings. The following witnesses testified: Clifford J. Martin and Marc Knittle for the plaintiff, Dennis Clarke and Richard Benevento for the defendant. Exhibits were introduced into evidence, many by the parties agreement, and all as reflected in the transcripts. At the conclusion of the taking of evidence, I suspended the trial to hear closing arguments with the benefit of posttrial briefing.
In the presence of counsel and parties I took a view of the locus on September 30, 2009. Martin filed a posttrial memorandum on October 8, 2009 and Simmons filed proposed findings of fact and rulings of law, and a posttrial memorandum on October 14, 2009. The trial reconvened for closing arguments on December 1, 2009. A further motion by Martin was filed on December 15, 2009 requesting leave to file late his proposed findings of fact and rulings of law. This was opposed by Simmons who filed a Motion in Opposition to Martins Request for Leave to File Late on December 16, 2009. The court allowed Martins request for leave to file late on December 29, 2009 and Martins proposed findings of fact and rulings of law were subsequently filed on January 8, 2010. Simmons filed a response to Martins findings of fact and rulings of law on January 19, 2010.
I now decide the case, making in this Decision findings of fact and rulings of law. For the reasons given below, weighing all the evidence as the trier of fact, I find and rule that:
1) Martin as the owner of Lot 3A holds no easement over the Unhatched Area;
2) Simmons right to use Way E over Lot 3A has not been extinguished. Way E runs over and encumbers the soil of Lot 3A in the prescribed location, and is not dependent on the existence of a platform; the right to use Way E is not limited to the party to the instrument creating that right, as the right as established as to Way E over Lot 3A was intended to be an appurtenant right, available to subsequent owners of Lots 4A and 20;
3) the use made of Way A by Simmons is reasonable because Simmons use is not inconsistent with the purpose of Way A, and Simmons use does not interfere with Martins ability to travel down Way A and access his property;
4) Martin is not entitled to prevent Simmons from parking vehicles on the area Martin claims is part of Way E because the location of Way E as depicted on the J Plan is its correct location, placing the parking of vehicles not on Way E, but on Lot 4A;
5) Simmons may not be held liable in connection with the movement of fill on Lot 3A and Ways A and E; these claims are time-barred and, in any event, Martin has not satisfied his burden of proof as to them;
6) Martin is entitled to the benefits of all the easements enumerated in Document No. 166939, but Simmons may not be held liable for any alleged interference with Martins easement rights concerning the six inch fire sprinkler pipe, the one and one-quarter inch domestic water pipe, and the four inch sewer. Simmons is not liable to restore Martins ability to use these easements, this burden rests on Martin; and
7) although Simmons has altered the drain receptacles giving access into the eighteen and twenty-four inch drains, Simmons may not be held liable for this. Martin is not entitled to have the asphalt and fill removed by Simmons from the drain openings.
The Unhatched Area Is Not Included Within the Right(s) of Way Appurtenant to Lot 3A.
One fundamental and threshold issue on which the parties square off in this litigation is whether or not the Unhatched Area, lying on land owned in fee by Simmons, is included within the rights of way afforded by the relevant certificates of title for the benefit of Martins Lot 3A as an appurtenant right. I conclude, on all the evidence, that the Unhatched Area is free of any right of way easement for the benefit of Lot 3A.
The simplest basis for this determination is that the relevant controlling certificates and plans do not show the Unhatched Area to be included within the rights of way established in those documents for the benefit of Lot 3A. The document which matters most is the plan adjudicated by the court, the J Plan, and the plan to which Martins certificate refers in delineating his easement rights. I find as a fact that the J Plan does not include any hatching in the Unhatched Area, demonstrating an adjudication by the court that that area was to be free of the encumbrance of any passage easement. My review of the original J-Plan Linen, on which the court-approved J Plan was issued, as well as of the K-Plan Linen, Exhibit 37, convinces me that the Unhatched Area was left unhatched, as an intentional indicator that this area was not within the sweep of the rights of way established in the relevant deeds and memorialized in the certificates of title issued for these parcels.
This analysis is, for purposes of the pending case, sufficient in and of itself. The purpose of the land registration system is to insure certainty of title, and so the law insists that rights existing in registered land be clearly laid out in the certificates of title and accompanying plans issued by the court. See, eg., Doyle v. Commonwealth, 444 Mass. 686 , 690 (2005): [T]he underlying purpose of title registration is to protect the transferee of a registered title.... (quoting Wild v. Constantini, 415 Mass. 663 , 668 (1993) and Kozdras v. Land/Vest Props., Inc. 383 Mass. 34 , 44 (1980)). See also, G.L. c. 185, §46, ...every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate.
Simmons, as a much later purchaser of its registered land holdings here, is fully entitled to rely on the state of the courts issued and approved certificates and plans to learn with certainty the encumbrances to which that land is and is not subject. The only fair reading of those binding registered land certificates and plans is that the Unhatched Area was left deliberately unhighlighted, to signify that it was unburdened by any easement. Simmons right to rely on the registered land system records would be defeated by a contrary conclusion, namely, that an easement existed though not disclosed by any fair reading of the District records.
The plaintiff, as the party asserting rights under the easements at issue in this case, bears the burden of proving, by a preponderance of the evidence, the existence, location, and scope of the easement he says spreads over the Unhatched Area for the benefit of his parcel. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 (2006). Persuasive evidence that the relevant certificates and plans do in fact show the easement as reaching into the Unhatched Area is non-existent. As trier of fact, I find no such indicator in those papers.
Even were I to stray beyond the limited sphere of inquiry properly open to me on this question, and indulge an investigation into the tangential documents which gave rise to the outstanding certificates and plans, I would have to have, as my focus, the documents employed at the time the disputed easements arose, which was in 1940. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005). Document 166939, the deed dated August 21, 1940 from grantor Textile Realty Company to grantee Russell Box Company for three lots of land on the subject block, Lots 4A, 10, and 12, each of which Simmons currently owns, does not in words self-contained in the deed provide an exact location for any of the easements it creates. There is no separate textual description of the location and limits of the easement; the plan is the sole source available to place the easement on the ground. When a deed refers to a plan to describe the land conveyed, the lines, courses, distances and monuments shown on the plan are incorporated in the deed, and form part of the description of the land in the deed as if set forth at length in it. Walker v. Boynton, 120 Mass. 349 , 351 (1867). And courts use a plan to determine the location of easements in both deeds and in certificates of title issued by this court. Dubinsky v. Cama, 261 Mass. 47 , 53 (1927)(His certificate of title in terms made the lot subject to the right of way shown on the plan. The plan was thus incorporated in the certificate of title as much as if attached thereto.); Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 180 (1998)(...the explicit references in all the descriptions of the easement to the recorded plan cement our conclusion....). In describing Ways A and E, the two easements which, given their layout, might implicate the Unhatched Area, the deed refers to the J Plan, which depicts the end of Way A with a dashed line. This dashed line extends southerly from the southern property line of Lot 3A to another dashed line located to the northeast of 200 Boston Avenue that then extends easterly to the land of the Boston & Maine Railroad. Located on the J Plan Linen, Ways A and E are depicted by hatching. The end of Way E is depicted on the J Plan as the boundary line of Lot 3A. This is really the only firm evidence of the intention of the parties who created the disputed easements which are labeled Way A and Way E. And the evidence shows that the easements does not reach into the Unhatched Area.
Martins arguments to the contrary would, if accepted, defeat the certain depiction, in the controlling records, of the limit of Ways A and E as stopping short of the Unhatched Area.. Martins arguments do not convince me that there is any ambiguity in those certificates and plans, much less any error.
Martin gave several reasons why the Unhatched Area forms part of Ways A and E leading into Lot 3A; I do not find any of the reasons persuasive, given the overall weight of the evidence. One reason Martin advances is that on the earlier I Plan, dated 1939, one year before the deed that created the easements, the Unhatched Area is not distinguished from Ways A or E; on Plan No. 6199I the Unhatched Area is hatched and included as a part of Ways A and E. Simmons argues, however, that the J Plan, dated 1940, supplies the proper boundaries of Ways A and E. Simmons is correct on this point. If anything, the significant change from the earlier plan, which predates the creation of this particular disputed easement, is probative of an intent to change the limit of the easement area on the ground, rather than merely tending to show simple sloppiness in the rendition of the later, and controlling, plan. I find there was a conscious purpose at the time the Way A and E easements were established for Lot 3As benefit that they not reach into the Unhatched Area, which was deliberately left unhatched to distinguish it from the other portions of the plan which were marked to show their inclusion as part of the easement area.
At trial, Martin testified that there was ambiguity as to whether the dashed line delineates the end of Way A on the J Plan. I find in the evidence no other satisfying purpose for the presence of the dashed line on the final plan. He also argued that a portion of Way A, the area where Way A turns ninety degrees to the north, would be useless if Way E was not extended into the Unhatched Area, because a building used to be located on part of this section of Way A. The now demolished building is depicted on the J Plan Linen by a square. He states that it would be foolish of the 1940 grantee of the...[Simmons] lots to burden their land with a right-of-way that did not benefit Lot 3A, and that it would be pointless for the 1940 purchaser of my lot, Peter Boshco, in my opinion, to agree to such a right-of-way for access to his land. Based on these beliefs, Martin testified that it was his contention that the parties to Document 166939 intended to include the Unhatched Area as part of Way E.
In creating the easements, Document No. 166939 states there will be A right of way in common with Lot 3A on said Plan 6199-J over rights of way A, B, C, and E shown on said Plan. Document 166939 clearly references the J Plan to provide the location of the created easements, not the I Plan, and the J Plan, as stated above, shows the Unhatched Area as not being a part of Way A nor part of any appurtenant easement to Lot 3A. Again, Martin, as the party seeking to establish the easement, has the burden of proof. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). This burden includes the burden of proving the nature and extent of any such easement. Id.
What Martin essentially argues is that his predecessor in title made an ill-advised choice about the quality of the easement it received when these rights were set up, agreeing to take a title that was benefitted by a less than ample right of way coming into Parcel 3A off of Way A. But this, standing alone as it does, is not more than an unsubstantiated argument about what Martin conjectures was a set of rights so deficient that his predecessor in title would not have knowingly settled for it. There is no evidence on this point favoring Martins position which I as the trier of fact find credible and persuasive. I do not see here a deprivation of access so lacking as to be an obvious mistake, proving that Martins predecessor could not possibly have meant to accept the easement which the plan and certificate show that he did accept.
I emphasize that, particularly because the land titles here are registered, and there has been no challenge to the plain meaning of the relevant certificates and plans for over half a century, I am convinced I am not at liberty to delve into a late-pressed claim of mistake. Even were I able to entertain evidence about a mistake made when the deeds and plans were registered and approved, Martin would be required to come forward with substantial evidence of a mutual mistake. Martin, however, has provided no evidence besides his own contentions that, given the practical deficiencies in the rights granted Lot 3A, as shown by the registered plans and certificates, the parties to Document 166939 intended the Unhatched Area to be included in Way E. He has put in no direct evidence about what the intentions were of the parties who set up these easements in 1940. His contentions alone are insufficient to satisfy his burden of proof that there was some palpable mistake because, to meet his burden of proof, Martin must point to far more than just some evidence; there must be substantial evidence. Mere belief does not equate to substantial evidence. See Hillyer v. Dickinson, 154 Mass. 502 , 503-504 (1891) (Evidence which merely raises a suspicion or a surmise or a conjecture is not enough to be entitled to be submitted to the jury.). These reasons do not enable Martin to carry his burden of proving that the documents and plans are wrong, and the Unhatched Area is part of Way E. The evidence shows that Lot 3A had access not only over the unblocked portion of Way E which was earlier at least partially occupied by the now-demolished small building, but also by passage over the other ways in and out of Lot 3A, including Way B and C, which connect Lot 3A to Way A and Boston Ave. The availability of viable access over these routes leads me to conclude that there was not clear error in the creation of the easements in a manner which excluded the Unhatched Area.
Martin asserts that he is entitled to use the Unhatched Area because of a history of use of that area for the benefit, among other things, of access to Parcel 3A. Martin testified to times between 1940 and 1993 when the Unhatched Area was used for this purpose. Martin, as I have said, put in evidence that there used to be a building on Way A, adjacent to one of the now demolished buildings on Lot 4A, and that the now demolished structure, while it still stood, obstructed part of the way depicted on the plan. This building is shown on the J Plan Linen by a square and is located where Way A turns ninety degrees north to the boundary line of Lot 3A, bordered by one of the now demolished buildings adjacent to 196 Boston Avenue to the west. Martin claims that the former structure prevented full use of the disputed easement, and that, as a result, he and his predecessors used the Unhatched Area to access Lot 3A while this building was standing. Martin contends that this building, which was demolished in 1993, blocked all but about three or four feet of the width of Way A in this location.
Even though I credit, to some degree, Martins evidence that there was some use made of the Unhatched Area to gain vehicular access from Way A to Lot 3A, I am unable to find, based on this use, any legally cognizable right in Martin to use the Unhatched Area for the benefit of Lot 3A. The Unhatched Area is owned in fee by Simmons, and the title to this land is registered. The law is clear that [n]o title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land. G. L. c. 185, § 53. No amount of use, even if adverse, and however open and long undertaken, can create an easement right on registered land where it does not exist as a matter of the registered title. To hold otherwise would be to deprive Simmons of a valuable attribute inherent in registered landthat it is immune from acquisition of rights by others based on use or based on necessity. Martin has failed to sustain his burden of proving that his Lot 3A holds an appurtenant easement over the Unhatched Area. There thus, as matter of law, can be no finding in Martins favor on a theory of prescription. The same is true for any claim to easement rights over the Unhatched Area based on necessity. Even if the registered nature of the title involved in this case did not forbid acquisition of an easement under either of these theories, the facts proved up at trial would be insufficient. There was no proof of open and notorious nonpermissive use of the Unhatched Area in the manner and for the continuous period the law requires for prescription to arise. And any claim to necessity would be defeated by the availability of other access to Lot 3A.
I find and rule that Martins Lot 3A has no right of way easement over the Unhatched Area.
The Continuing Vitality of Simmons Easement over Way E
Martin appeared to contend at trial that Simmons right to use the portion of Way E on Lot 3A has been extinguished because Document 166939, the deed creating the easements, refers to a platform over which Way E runs, and this platform no longer exists. He also argues that only the purchaser of Lot 4A and Lots 10 and 12, now Lot 20, which was the Russell Box Company, is able to use Way E, and that the right was not able to transfer to subsequent owners of those lands, including Simmons. Simmons argues, however, that Martins rights to use Way E on Lot 3A have not been extinguished because Way E does not run exclusively on Lot 3A and Way E was never completely covered by a platform. Simmons also asserts that the deed creating the easement does not limit the right to use Way E only to the time a platform exists. Simmons notes that the deed references the grantees premises as being conveyed subject to and with the benefit of the easements concerning Ways A, B, C, and E.
Document 166939 states, The said premises [Lots 4A, 10 and 12] are conveyed subject to and with the benefit of all the rights, easements, restrictions, or encumbrances imposed thereon or reserved therefor by a deed of the Grantor to Eastern Realty Company dated November 28, 1939... Document 166939 also provides that said premises are further conveyed subject to and with the benefit of the following additional rights and easements, namely: 1. A right of way in common with Lot 3A on [the J Plan] over rights of way A, B, C, and E shown on said Plan . . .. The provisions of this paragraph shall impose no obligation upon the owner of Lot 3A to maintain the platform over which right of way E runs but shall give the purchaser the right to go upon said Lot 3A to maintain or repair said platform.
The testimony concerning the historical existence of the platform on Way E came from Martin. I believe his testimony that Way E was never completely covered by a platform, while one stood, and that the platform does not exist today, having been removed sometime prior to 1964. Martins knowledge beyond these basic points was lacking. He did not know when the platform actually came down, nor who was responsible for its removal, or under what circumstances.
The initial (and dispositive) problem with Martins claim of extinguishment based on the elimination of the platform, is that the relevant document does not, under any fair reading of it, limit the existence of the Simmons lots owners right to use Way E only to a time when the platform is in place. To the contrary, the only reading the language admits is that the platform could exist or not exist and the easement would remain in force. This follows from the proviso in the easement paragraph that the owner of Lot 3A had no obligation to maintain the platform, but that the holder of the easement had a right to go on Lot 3A to carry out maintenance and repair of the platform. There was no duty imposed on the holder of the easement to keep the platform in place and in good condition. If the platform was beneficial to the easement holder, it could keep the platform intact. But the document in no manner requires that, nor does it insist on the continuing presence of the platform as a condition of the easements perpetuation. The parties to this document certainly could have said as much if they wished to limit in this fashion the duration of the Way E easement. They did not.
Indeed, the parties to the document showed us that they well knew how to make a right limited in time and contingent on the continued existence of a physical improvement on the land. The right, for example, granted for the benefit of Lot 3A in numbered paragraph 8 of the deed, to run a small pipe or flue ... to the chimney upon Lot 4A... was to exist only so long as said chimney shall be standing.... I find it persuasive that, in contrast, the Way E right of way paragraph does not include any similar contingency for the platform or based on its possible future disappearance.
There also is no good reason shown in the evidence which I credit why the holder of the Way E easement over Lot 3A necessarily would have needed or wanted the platform to exist at all times as a condition to the right of way remaining in force. Given the configuration of the parcels and of the buildings on them at the time these easements arose, it is not clear why the owners of what is now the Simmons lots would only want to pass over Way E if a platform existed, but not if it had been taken down. Way E would need the platform particularly to gain access to the building, now gone, on Lot 3A, but Way E, as set out on the relevant J Plan, forms part of an overall pattern of circulation which contemplated passage over the combined lengths of Ways A, B, C, and E. That purpose would be stymied if the link over Way E on Lot 3A was broken simply because a platform ceased to exist on that land. And as history has proved, now that the building on Lot 3A has been claimed by fire and is not there any longer, the need for passage at grade, rather than over a platform, may be more in the interests of the easement holder, Simmons. Nothing in the evidence shows me that this possibility--that passage at some future date over Way E even without the platform might be necessary and desirable--was somehow negatived by the creators of the easements.
I also take into account that the platform did not cover the entirety of Way E as located by the J Plan. If the easement marked as Way E on the plan was intended to be limited to the reach of the platform as it may have stood at the time the easement was created, it would have been an easy matter to make that clear in either the plan or the in the deed. Neither one of them, however, shows any attempt to limit the passage rights to the physical location of the platform, and in fact, the better and correct reading of the plan is that a portion of Way E, including that on the southeast side of the building shown on Lot 3A, was impressed with the easement even though no platform was built on that specific location. A portion of Way E also clearly runs over a portion of what is now Simmons land. I conclude that the platform and Way E overlapped considerably at one time, but that the location of the easement to use Way E was not limited to the physical area on which the platform existed.
I do not consider the relevant instrument to be at all ambiguous on this point. I decide on the language of the relevant document, certificate of title, and plans, that the easement for Way E was not on some condition or understanding that the right of way would end if the platform ceased to be. But even were I to consider the documents at all unclear, which I do not, I would not reach a contrary conclusion. When interpreting an ambiguous easement by grant or reservation, the easement is to be construed in favor of the grantee. See Bernard v. Nantucket Boys Club, 391 Mass. 823 , 827 (1984) (It is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him.) (quoting Thayer v. Payne, 56 Mass. 327 ( 2 Cush. 327 ), 331 (1848) (internal quotation marks omitted)); Johnson v. Jordan, 43 Mass. 234 ( 2 Met. 234 ), 240 (1841) (The language of the deed is the language of the grantor; he selects the terms, and it being supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to state fully all which is beneficial to the grantee, the language is to be construed most strongly against the grantor.); Adams v. Frothingham, 3 Mass. 352 (3 Tyng 352), 361 (1807) (Doubtful words and provisions are to be taken most strongly against the grantor, he being supposed to select the words which are used in the instrument.).
The easement, even were it to be considered ambiguous, would be construed in favor of Russell Box Company as the grantee. Russell Box Company, Simmons predecessor in title, as the purchaser of Lots 4A, 10, and 12, would be entitled to have any ambiguity surrounding Way E interpreted against the grantor, Textile Realty Company. Therefore, when interpreting the deed as if it contained ambiguity on the question whether Way E runs over the soil or solely over the platform, or whether there might be some provision for termination of the easement should the platform cease to exist, the required approach would be to construe the language of the deed against the grantor. Even were there to be any ambiguity on these points (which I conclude is not the case), I would have to give the benefit of the interpretation to Simmons, and conclude that Way E runs over the soil in the location marked on the J Plan, and that the easement survives the elimination of the platform.
I also reject as unfounded by the facts and the law Martins fallback contention that only the immediate purchaser of Lots 4A, 10, and 12 in 1940 (Russell Box Company) was given the right to use Way E, effectively rendering the right a license or a non-transferable easement such as an easement in gross. The support for this contention is hard to divine in the evidence. The deed establishing the right to use Way E contains no words of limitation or denying the easement to successive owners of the benefitted parcels. It would be anomalous for the easement instrument to set up rights benefitting Martins land which were to run with the land and be available to ensuing owners of Lot 3A (a position for which Martin, a later owner of Lot 3A, certainly advocates), but to have the benefit of rights of way burdening Lot 3A come to a halt upon the first transfer of title to the Russell Box Company parcels. Such an unbalanced approach would be greatly inconsistent with the reciprocal and interwoven construct of easements set up when these parcels of compact and heavily-developed industrial parcels were divvied up into separate ownership. The language of the operative deed is that the benefit of this easement to use Way E was conferred on the premises, and not only on its owner at the time. I conclude that the easement was intended to be, and remains, appurtenant to what has become Simmons land, and is available to Simmons notwithstanding the transfer of title to those lots since the easement first came into being.
The preference of our law is that an easement granted or reserved be treated as appurtenant, and as intended to run with the land, absent words or clear circumstances, none of which exist in the case before me, which would negate the general approach. See, eg., G.L. c. 183, § 13 and §15 (In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.). See Dennis v. Wilson, 107 Mass. 591 , 592 (1871): Such an easement is never presumed to be personal, when it can fairly be construed to be appurtenant to some other estate.
I determine there is nothing at all ambiguous in the document on this question. Even were there to be ambiguity, which there is not, I would proceed to construe the language of the deed in favor of the grantee, and reach the result that the right of way over Way E on Lot 3A was granted as a perpetual, appurtenant easement, available to each of the owners from time to time of Lots 4A, 10, and 12. Holding otherwise would interpret the language of the deed against the grantee, which I would not be privileged to do.
Any assertion by Martin that Simmons, the current holder of the easement to pass over Way E on Parcel 3A, has somehow lost that right because it has not been exercised for some time, is a doomed argument. Nonuse of an easement, by itself, is insufficient to constitute abandonment of the easement. Desotell v, Szczygiel, 338 Mass. 153 , 158-159 (1958). There must be an intent to abandon the easement, demonstrated by acts by the owner of the dominant estate of such conclusive and unequivocal character as manifest a present intent to relinquish the easement or such as are incompatible with its further existence. Willets v. Langhaar, 212 Mass. 573 , 575 (1912). See Desotell v. Szczygiel, 338 Mass. 153 (1958); First National Bank of Boston v. Konner, 373 Mass. 463 (1977). An express easement, such as the one in the case at bar, can be extinguished only by grant, release, abandonment, estoppel, or (in the case of unregistered land) prescription. See Emery v. Crowley, 371 Mass. 489 , 495 (1967). Any claim by Martin that plaintiff does not need its registered right to use Way E, and therefore should no longer have rights to it, is unavailing, as a lack of necessity does not extinguish an express easement. Id. Where, as here, the easement arises by grant and reservation, it does not matter, in the law, that the easement holder may have other, even better and sufficient, ways to get to and from the benefitted property.
The easement over Lot 3A also has not been extinguished on the basis of prescription, as one cannot lose ones interest in registered land through prescriptive use, or other acts of adverse occupation, by the owner of the servient estate. G.L. c.185, § 53; Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 390 (1992). As to registered land burdened by appurtenant easement rights noted on the certificate of title of neighboring registered land, no manner or length of adverse possession or use by the servient estate owner will extinguish the registered appurtenant right. Abandonment of the registered right by the registered holder of it is still possible, but not loss of the right by actions of the burdened owner. Id. See also Benevolent and Protective Order of Elks, Lodge 1409 v. Donahue, 16 LCR 22 (2007)(Piper, J.). In the case now before me, the only showing on this point which I accept as well established (on the evidence I credit) is that it has been many decades since the owners of the Simmons lots made use of Way E over the Martin lot. But this non-user, as I have said, is legally insufficient to make out a case for abandonment by the dominant estate holder. The placement of fill in the Unhatched Area, discussed elsewhere in this Decision, does not show any intention to abandon the Way E easement, because, particularly since the demolition of the small square structure which formerly constricted, in part, passage from Way A into Way E, there has been an effective means of getting onto Way E on Lot 3A notwithstanding the grade changes which the fill may have caused. There is nothing in the credible evidence which equates to a fence, much less a structure or other firm and substantial blockade, erected by the benefitted easement holder to demonstrate that it never again intended to make use of the easement over Way E. On the evidence I credit, there has been no abandonment of that easement by Simmons or its predecessors.
For these reasons, Simmons use of Way E has not been abandoned or otherwise extinguished, Way E runs over the soil and is not dependent on the existence of a platform, and the registered right to use Way E over Lot 3A extends fully to Simmons as a subsequent purchaser of Lots 4A and 20. [Note 2]
Martins Claims of Interference With His Registered Easement Rights
Claimed Encumbrances Placed on Way A
Improvements, Including Parking, Located Along the Sides, But Within the Limits, of Way A
When an easement is established by express grant or reservation, the easement holder has, as a general matter, the right to use the entire width of the right of way. Onorait v. ODonnell, 3 Mass. App. Ct. 739 (1975). That right to use, however, is far from absolute; there is at all times a balancing of the respective rights of the easement holder and landowner. An affirmative easement creates a nonpossessory right to enter and use land in the possession of another, and obligates the possessor not to interfere with the uses authorized by the easement. Restatement (Third) of Property (Servitudes)... at 1.2(1).... Patterson v. Paul, 448 Mass. 658 , 663 (2007). Land that is subject to an easement may be used for any purpose that does not unreasonably interfere with the easement holders rights. See Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 , 158 (1983) ([T]he long standing rule, in cases of easement by grant [is] that an owner may use the land for all purposes which are not inconsistent with the easement . . . or which do not materially interfere with its use.); see also Western Mass. Elect. Co. v. Sambos of Mass., Inc., 8 Mass. App. Ct. 815 , 818 (1979) (The general rule in determining whether a given proposed use falls within the activities forbidden to the owner of a servient estate is that such an owner is entitled to make such use of the estate as is consistent with the easement.) (citations omitted). As long as there is no express limitation in the deeded easement concerning the frequency of use or the manner in which the easement can be used, the easement can be used in any reasonable way. See Michaelson v. Nemetz, 4 Mass. App. Ct. 806 , 806-807 (1976) (an easement expressly limited to the use for all purposes for which a driveway may be used was also limited to a frequency of use that was reasonable) (citations omitted). Whether the use by the owner of the servient estate is reasonable depends on the facts and circumstances. Guillet v. Livernois, 297 Mass. 337 , 341 (1937); see also Western Mass. Elect. Co., 8 Mass. App. Ct. at 818-819 (finding the servient owners proposed use of the easement area unreasonable because it would increase the hazards and costs to the plaintiff, including risk of injury and interference with repairs.).
In Guillet, the court concluded that the defendant was permitted to take an unwrought, impassable private street over which he had a right of way, and to perform work to make the way passable and usable to its entire width, having due regard to the rights and interests of others. Id., at 340. The court said this follows from the general principle that when an easement or other property right is created, every right necessary for its enjoyment is included by implication. Id., quoting Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934). The Guillet court went on to note that [t]he right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. ... The right exists even more clearly where without improvement the way is impassable and useless. 297 Mass. at 340. Whether improvements made are reasonable in view of the equal rights of others, is largely a question of fact. Id., at 341.
Martin seeks to have all of the improvements--which he deems obstructions--that have been placed on Way A removed. He seeks this injunctive relief as to the entrance foyer to196 Boston Avenue, the depressed loading dock (including the surrounding railings and curbing), a depressed stairwell (also including its surrounding canopy, railings and curbing), the curbing and landscaping placed throughout Way A, utility poles, and the parking of vehicles. After considering all the evidence, I find and rule that Martin is not entitled to this relief because these improvements placed on Way A, both individually and in the aggregate, do not unreasonably interfere with the use of Way A and are not inconsistent with the purpose and use of Way A.
Document No. 166939 states that the owners of Lots 4A, 20, and 3A have a right of way over Way A. There are no express limitations, nor any requirements, as to use of the full width of the strip of land denominated Way A, and none are imposed by the relevant certificates; therefore, Way A can be used in a manner that is reasonable and does not interfere with Martins use. Michaelson v. Nemetz, 4 Mass. App. Ct. 806 , 806-807 (1976); Western Mass. Elect. Co., 8 Mass. App. Ct. at 818-819. The easements at issue in the case before me are different in their formulation from easements which, by the express terms of their creation mandate that the full width of the easement strip laid out be forever kept open. Compare, e.g., New York Centr. RR. Co. v. Ayer, 239 Mass. 70 , 74 (1921) in which the instrument provided that a strip of land twenty (20) feet wide ... shall forever be kept open for a passageway and for light and air and drainage...., leading the court to conclude that [w]e think the words of the grant and reservation import an intent of the parties that the entire passageway and not a convenient part of it shall be subject to an easement.... Id., at 77.
Martin asks for judicial relief as to curbing and landscaping installed where Way A meets Boston Avenue. The curbing here appears on plans prepared in 1987, and so dates to 1987 or earlier, well before defendant owned any land in this block. The effect of the curbing is to leave about 26 feet open at the entryway into Way A. This, I find, is a more than adequate opening, and Martin does not appear to disagree, conceding that there has never been any adverse impact on his ability to use Way A in this area (or any other, for that matter) for passage to and from his land.
The plaintiff objects to utility poles--two of themwhich he says intrude impermissibly onto Way A. These are shown on Exhibit 29. One is pole number 3695, and the other is between that pole and the street. These poles too were in place no later than 1987, based on that plans preparation date. Certainly the defendant played no part in placing the poles. More importantly, with these poles standing within the limits of Way A, in this vicinity it still provides unobstructed passage to the width of 28 feet.
Towards the middle of Way A, there is a projection from the 196 Boston Avenue structure which projects into the limit of the Way; this is the location of the elevator shaft for that building. Because this feature existed in 1940 and shows on the J Plan, outlined with hatching; Martin does not ask for its removal because it was on the plan at the time the easement came into existence.
Also on the J Plan are two nearby rectangular structures (neither marked by hatching), one of which was connected to the elevator shaft projection and extended away from it towards the 200 Boston Avenue building on the other side of the way. This first rectangular structure, which I find was part of the loading platform or area associated with the elevator, has been removed.
The second of the rectangular structures was a utility box of some type, and is long gone. It was located flush against the 196 Boston Avenue building, just slightly closer to Boston Avenue than the elevator shaft projection, and not projecting nearly as much into Way A.
What Martin does complain about is an entrance foyer, built as part of the rehabilitation of the 196 Boston Avenue building, which now exists within the limit of Way A. It has a green metal roof which connects with and slopes away from the 196 Boston Avenue building. The entrance addition is located right up to the elevator shaft projection, tucked against the southeast side of the 196 Boston Avenue building in the notch created by the elevator shaft projection, and extending from it towards the street. This entrance structure occupies the same general location as where the second, utility box structure once stood, although the new entrance feature of the building is larger than the former structure. The entrance foyer adds perhaps several more feet of projection into the limits of Way A than occupied by the former utility box structure, but the entrance foyer lines up its width with that of the original elevator shaft projection and is no wider than it, thus projecting no more intrusively into the passable width of Way A in this area than the elevator shaft alone. Said a different way, the entrance foyer, for the installation of which Simmons accepts responsibility, extends longer along the length, front to back, of Way A, but makes Way A no narrower than the narrowing previously brought about by the long-standing elevator shaft projection. Since its creation, Way A has always been narrowed down here, owing to the elevator shaft and to the former structures once close by it and now removed, but I find that even with the presence of the newer entrance foyer, Way A functions fully adequately for passage by all current trucks and other vehicles that make use of the way.
I draw the same conclusion with respect to Martins assertions that other features installed within the limits of Way A must be removed. Martin complains about parking spaces marked out along the 200 Boston Avenue building and near the utility poles on the northwest side of Way A, including where it connects with Way B. But these spaces, taken altogether, do not cause any restriction on the use of Way A for all manner of truck and other vehicular passage moving in both directions along Way A. Way A is wider here than further into the lots at the elevator shaft and entrance foyer projection, and Way A functions without difficulty.
So too with the loading dock area that lies, partly below grade, near the elevator shaft, and the partially depressed stairway, with a handrail and canopy, that affords access into 200 Boston Avenues main building. In each instance, the usable width of Way A is wider here than elsewhere, and at all points along its length is adequate to the current use and certainly, to any use which might be claimed by the owner of Lot 3A.
Martin himself testified that Way A had been used for travel between Boston Avenue and Lot 3A and for delivering and receiving goods, but went on, appropriately, to say that Simmons may use Way A in any way it chooses that does not interfere with my right of egress and ingress on Right-of-Way A. Martin testified that at no time while Simmons has owned Lot 4A and Lot 20 has he been unable to access Lot 3A, and Simmons has never by any words or deeds signaled to him that he has no right, now and in the future, to use the easement areas on the J Plan to pass to and from Lot 3A. Martin, in visiting the locus, has very infrequently encountered some vehicle in his way and as a result had to wait at most less than a minute, usually much less; these slight waits were not the norm, but happened only on relatively rare occasions. He also gave evidence that the width of Way A fluctuates as one travels down Way A from Boston Avenue, but vehicles, including trucks, are able to travel down Way A despite the improvements which have placed upon it. The trucks making use of Way A are, of course, not heading in the direction of Lot 3A, given its post-fire vacant status, and instead are serving the occupants of the buildings otherwise alongside Way A.
None of these trucks, I find, have had any difficulty navigating the Way A as it currently is improved, and many of the trucks today on the way are larger than those which would have existed when the easements arose in 1940. There have been no complaints from public officials, nor any other issues concerning the adequacy of the way in its current configuration to serve emergency vehicles. I credit the testimony of Mr. Clarke of Simmons, that he has repeatedly, in fact over many hundreds of times, seen perhaps thousands of vehicles of all sizes and descriptions make effective use of Way A. I credit the testimony of engineer Richard Benevento, who testified that at Way As narrowest point it is approximately nineteen feet wide, and that city streets are ten to twelve feet wide, and that marked travel lanes on major highways such as the Massachusetts Turnpike have a width of around 11 or 12 feet. I conclude, as a factual matter, that there is a more than sufficient width currently provided within the unobstructed limit of Way A to accommodate current and reasonably foreseeable uses of the easement area by those entitled to do so.
I am of course aware that the land involved here, including that over which Martins easement rights extend, has a registered title. I do not consider that fact to alter at all the determination I have made concerning the unavailability of relief to the plaintiff as to the improvements which exist within the limits of the easement areas, established in the parties certificates of title, where those improvements do not at all interfere with the exercise of the easement rights. I see in the applicable law no reason to use a different analysis as to when an improvement, even a substantial one like the entrance foyer installed by Simmons in this case, ought be ordered removed from the area impressed with a passage easement. I reject the argument made by Martin that there is an absolute right to removal simply because the easement exists as a matter of his registered land title. What the registered land title provides is certainty as to the title. There can be no doubt that a given easement, duly registered, encumbers the title of the land on whose certificate of title the easement is noted. But the fact that the easement indisputably exists does not change the general rules of property law that give the burdened landowner the right to use his or her land for all purposes not inconsistent with the rights granted the easement holder. If this means, as I have determined it does in this case, that the presence of certain features and improvements within the easement area are, because of the way they are located, not interfering in the least with the rights under the easement, then those features and improvements may remain, whether the lands title is registered or not.
I conclude, based on the above stated testimony, that the use of Way A by Simmons is reasonable because Simmons use is not inconsistent with the purpose of Way A, and Simmons use does not interfere with Martins ability to travel down Way A to access his property.
Martins Plans to Rebuild on Now Vacant Lot 3A
Of course, Martins current use of his Lot 3A places very little burden on Way A, because no building has stood on Lot 3A since the fire in 1991. Today, Lot 3A contains only weeds, brush and debris. Martin has plans to develop a new structure on Lot 3A at some future time. He asks for relief in this action, including as to the removal of improvements occupying any part of the width of Way A, based on his long-term plans for redevelopment of his land.
I find that Martins plans, while certainly genuinely held to by him as something he would some day attempt, are at this point indefinite, ill-defined, and lacking any tangible form or substance. He has no design plans, permits, or financing. He has made no worthwhile study of the land use and similar regulations which would govern the eventual erection and use of a new building. He has no architect or engineer engaged to work on a specific project. He has no tenants lined up. He is unable to say with any specificity what any building on the site would look like, and what use it would serve.
Martin asks, on the basis of his inchoate plans to build on his lot, that Simmons be directed now to remove features existing anywhere within Way As limits, as shown on the J Plan. I have found that no such relief is indicated on the current state of affairs, with the evidence demonstrating that use of Way A as it now exists adequately serves todays type and level of traffic. It would be difficult to imagine how some eventual specific use of Lot 3A might call for removal of one or more of the features existing within Way As limits. But on the evidence I have in the case before me, I cannot make any meaningful finding as to that prospect, because Martins plans are so tenuous as to be of no help. On this record, the only way I could address this concern of future development of Lot 3A would be to stray into the forbidden realm of conjecture and speculation. I will not do that. I determine that nothing about the current, or any foreseeable, use of Lot 3A justifies a conclusion that Way A needs to be opened up in any way to serve its purpose. I leave to a later action, if necessary, brought with a specific use of Lot 3A clearly established, to take up the question whether there might be something about the use of Way A that would be entitled to judicial adjustment to accommodate that particular use.
Parking of Vehicles on the Unhatched Area
Martin has objected to parking going on by Simmons (and its building occupants and their invitees) in the portion of Simmons land which is the Unhatched Area. The determination I already have made, that the Unhatched Area is not impressed with any easement right of Martin or for the benefit of Lot 3A, leaves the Unhatched Area as unencumbered fee of Simmons, and defeats this claim by Martin. This parking of vehicles by Simmons is permitted because it is taking place on Lot 4A, and not at all on Way E.
The Placement of Fill on Lot 3A, Ways A and E, and the Unhatched Area
Martin argues that the placement of fill which he says has taken place on Lot 3A, Ways A and E, and the Unhatched Area should be removed by Simmons, and the affected areas regraded to the grade of the land as it was in 1940. Martin testified that when he purchased Lot 3A the grade of the land varied slightly, but was essentially flat. He also stated that when he bought the property the level of the first floor of the building was dock height at both the eastern and western ends of the building. After the placement of the fill, however, he contends that the eastern end of any new building to be constructed on Lot 3A would not feasibly be any longer at dock height to receive goods on the first floor. Exhibits fifty and fifty-one, photographs showing the location of the fill, also depict the fill as placed on Lot 3A and Ways A and E. These photographs were taken by Martins brother, who did not testify, and Martin was not present when these photographs were taken.
Simmons argues that Martin is unable to prove that it was Simmons which placed the fill on Lot 3A and Ways A and E. The only proof Martin offered, Simmons asserts, is Martins own belief that Simmons placed the fill in these locations in 1993. Martins contention is based on his conclusion that when Simmons purchased the property in 1993 the two now demolished square buildings on Lot 4A still were standing. The fill, he says however, was placed after those buildings were demolished; from this Martin argues that it was Simmons which placed the fill on Lot 3A and Ways A and E.
While it does appear from the small amount of helpful and believable evidence I have on this point that some fill was placed on some portions of Lot 3A, Way A and E, and the Unhatched Area after the demolition of the buildings in 1993, the evidence is insufficiently persuasive to let me draw the finding that it was Simmons who was responsible for the placement of this fill. Martin, as plaintiff, bears the burden of proving this by a preponderance of the evidence, and as the trier of fact, I am not in a position to draw the inferences required to reach that finding. Without direct observation (or similar demonstrative proof) of the placement of fill in these contested areas, it would be inappropriate on this record for me to lay the liability for doing so at the feet of the defendant. While the chronology is not at odds with Simmons having played some role in the fill ending up where it did, I decline to treat it as established that Simmons did so.
I also conclude that, as to much of the areas complained of by Martin as the location of unlawful filling, he has not any legal basis to do so. Martin did not put in any meaningful evidence, in the nature of site survey or topographical study findings, to locate with any precision on the ground where the fill he objects to actually exists. In any event, to the extent Martin claims that the fill was placed without right in the Unhatched Area, that claim must fail, for Martin is not the owner of the Unhatched Area, and has no rights of easement or otherwise to use the Unhatched Area. Simmons, as the fee owner, is the only party with rights which might be affected by fill deposited in the Unhatched Area, and Simmons raises no concerns about it.
Any fill which came to rest in the Way A easement area is not actionable. This is so because this area, belonging to Simmons, is impressed only with easements in favor of Martins Lot 3A for passage to and from it, and I have determined, as a matter of fact, that the current layout, configuration, and improvement of Way A is fully consistent with the purposes of the registered easement. This is true as to the grade of the full length of Way A, about which there was testimony, and which I observed on the view I took. Martin, in his testimony, did not contend other than that the grade of Way A was adequate.
This would leave only fill which may have been placed on Martins own lot, Lot 3A. As I have said, with no evidence of moment which I find persuasive to raise up to the level of proof Martins own belief that Simmons placed fill on Lot 3A, I cannot find that Simmons caused that fill to come to rest there, nor hold Simmons liable for the removal of the fill in these areas. I could not satisfy myself, moreover, about the degree to which the fill had elevated the preexisting grade of Lot 3A. Martin testified that he has no photographs, surveys, or other demonstrative evidence illustrating the grade of the land in 1940, or otherwise helpful to show how the grade changed..
I also conclude that the claim Martin asserts regarding fill he says was placed on Lot 3A in 1993 cannot proceed because of the timing of the raising of that claim in this action. This suit comes too late for the action to be viable. I may not be able to say with certainty just how early the fill went in, nor the identity of the party responsible for placing the fill, but it is clear, from the photographs taken by Mr. Martins brother, that the fill has sat in its current location since approximately 1993. And plaintiff has known of the fill (and the allegedly wrongful nature of it) on Lot 3A since then, and yet only brought this action in 2007.
Although the question is a close one, on the facts as I find them, I determine that Martins claim regarding the fill on Lot 3A is properly treated as one for trespass onto his land. I begin by raising, as I must, see Mass. R. Civ. P. 12(h)(3), the concern that I do not appear to have subject matter jurisdiction over this aspect of Martins complaint. The Land Court has jurisdiction, under G.L. c. 185, §1(o) over [c]ivil actions of trespass to real estate involving title to real estate. This court does not have jurisdiction over complaints which sound in trespass unless the claim involv[es] title to real estate. The court historically has read that to mean that, to invoke its jurisdiction, there must be more than mere trespass alleged--there must be a live issue as to title as well in the case. Cases of plain trespass, without any issue of title, belong in another department of the Trial Court, even if the lands title happens to be registered. While there is much in this case about title for me to decide, there truly is not any dispute about Martins ownership of Lot 3A, nor about the fact that nothing in Simmons title would have authorized it to place any fill (as Martin says happened) onto Lot 3A. So it is doubtful that the Land Court has jurisdiction over this particular piece of this case. And to the extent Martin characterizes this claim as one for nuisance instead, that would not alter the time frame for bringing suit, and moreover, would certainly be a claim over which this court lacks subject matter jurisdiction.
In any event, given that, as to some areas where filling has taken place (other than Lot 3A) there has been controversy about whether that filling is or is not consistent with the parties titles, I alternatively conclude that the claim about fill ending up on Lot 3A is time-barred. The statute of limitations on an action for tort such as trespass is three years, and would be measured from when the plaintiff learned of the trespass. See G. L. c. 260 § 2A (limitations period for tort claims such as trespass is three years).
Martin offers two lines of argument to counter this timeliness problem with his suit. First, he says that this is an example of a continuing trespass, and so falls within the doctrine that where there has been a continuing trespass, which must be based on recurring tortious or unlawful conduct, see Carpenter v. Texaco, 419 Mass. 581 , 583 (1995), the statute of limitations is not a bar, because the trespass is ongoing. But as Carpenter explains, the doctrine of continuing trespass does not apply where the harm caused by the trespass continues after the tortious or unlawful conduct has terminated. Id. The placement of the fill constituted the tortious conduct. That set in motion the need to file suit. This is not an instance like that where continuing and recurring movement of liquid contamination into the soil of the plaintiffs land, may rise to the level of a continuing trespass. Cf. Taygeta Corp. v. Varian Assocs. 436 Mass. 217 (2002). In that case, the court characterized its holding in Carpenter to be that the plaintiffs claims were essentially for a single encroachment that had resulted in permanent harm... Their claims, therefore, were barred by a three-year statute of limitations. Id., at 232. See also Lamantea v. Zolla, 14 Mass. L. Rep. 502 (2002)(Superior Ct.)(Toomey, J.). I conclude that the claim at issue in the case before me does not shape up as a one for continuing trespass.
Martins second response on the statute of limitations defense raised by Simmons is that the placement of the fill constitutes a permanent physical encroachment onto his land, and so is the subject of a twenty-year statute of limitations--that which governs actions in the nature of ejectment, for the recovery of land. See G.L. c. 260, §21. It is certainly true that actions based on encroachments, of a wide variety, onto land are timely brought until twenty years passes.
The case before me concerns, however, not a building or structure erected on Lot 3A, but some indeterminate quantity of dirt and other loose material placed upon it. Had the encroachment been a building put up in 1993, there is no doubt that the twenty-year statute would apply, and a suit seeking to have the building taken down would be timely. But here, there is no contention by Simmons that they even placed the fill on Lot 3A, much less that they claim any interest in the fill, or have any desire to perpetuate it in place. Simmons simply denies any responsibility for the fill or liability for its removal. And Simmons makes no claim to any sort of title interest as to Lot 3A of the sort which would arise out of the placement of the fill.
Not all things deposited on a neighbors land are substantial and permanent enough to rise to the level of an encroachment which justifies treating the case as subject to the twenty-year statute of limitations. Tossing litter, brush, debris, or trash, for example, and leaving it sit in place on the land next door, is not conduct actionable after three years. Just because what is alleged to have been left on Lot 3A here is earth and other fill material does not automatically invoke a twenty-year statute of limitations. I am not prepared to say that in all cases, the installation of a volume of fill on the land of another could not constitute the kind of permanent physical improvement that gives rise to ejectment style rights, and which would make available the twenty-year recovery of land limitations period. But in this case, where there is little in the evidence to say just how much volume of fill might have been placed on Martins land, and in which specific locations, I conclude that the governing limitations period was three-years, rather than twenty. Analyzing this another way, I do not see the fill at issue here as permanent use or possession (by whomever placed the fill) of Martins Lot 3A, in a way which would, if maintained unchallenged for twenty years on a parcel with an unregistered title, ripen into either a prescriptive easement or a full title by adverse possession. I see only the depositing of fill that was without right, a simple trespass.
I determine that Martin has no viable claims against Simmons with respect to any of the fill Martin says Simmons placed on the land involved in this case.
The Claim that Restoration by Simmons of the Six-Inch Fire Sprinkler and One and One-Quarter Inch Domestic Water Pipe, the Four-Inch Sewer Pipe, and the Eighteen and Twenty-Four Inch Drains
Martin argues that Simmons has interfered with his rights to use the six-inch fire sprinkler line, the one and one-quarter inch domestic water pipe, the four-inch sewer pipe, and the eighteen and twenty-four inch drains; Martin seeks judgment ordering the restoration of these underground pipes and lines by Simmons. Simmons says all these claims are time barred, and also argues that Martin has failed to carry his burden of proof in showing that Simmons has interfered with his easement rights. Simmons says it cannot be liable for the acts of their predecessor owners. Simmons does acknowledge that it covered over the eighteen and twenty-four inch drains, placing fill and asphalt over them, but contends that there is still adequate drainage for the locus, and thus no action Martin can maintain in this regard, either.
Martins claims with regard to all of these underground lines suffer from the same threshold infirmity as those concerning the placement of fill--they are all brought too late. These claims all sound firmly in tort. Martin does not dispute that the harm of which he complains arose in the 1990's. His theory of what occurred is that these pipes were cut off, and the inlet drains covered over, in connection with the project which included the demolition of the two smaller square buildings on Lot 4A alongside the 196 Boston Avenue building, something he treats as having happened in 1993, following Simmons acquisition of the improved land. There is no legally adequate explanation provided by Martin as to why he waited until 2007 to commence suit. I conclude that the statute of limitations on tort actions bars provision of relief to Martin.
Even were that not so, Martin is unable to satisfy his burden of proof for showing actionable interference with the four-inch sewer, the six-inch fire sprinkler pipe, and the one and one-quarter inch domestic water pipe because he has offered no evidence, besides his own belief, that Simmons interfered with his easement rights. Martin testified that he believes Simmons interfered with the four-inch sewer line when Simmons demolished the two buildings on Lot 4A and filled in the basements beneath them, because the sewer ran through the basements of those buildings. Martin says that [i]t is common sense that utilities of every kind, whether they be sewer, water, electric, gas, et cetera, would be capped, disconnected, or somehow deactivated before demolition of a building.
There is a material gap, however, in Martins knowledge base concerning these underground pipes which formerly served his building on Lot 3A. That building was destroyed by fire in 1991, well before Simmons or its affiliate acquired title and commenced any work in the vicinity. Martin is not at all certain about the details of the pipes he wants reinstated by Simmons. He testified that he is not positive that the pipe which he saw in his own basement at one time was the four-inch sewer pipe at issue, and the evidence I credit fails to connect Martins former buildings sewer and water lines with those that he posits must have been eliminated by Simmons when it did work on its own land. Martin has not performed any investigation regarding the condition of the four-inch sewer pipe after the fire in 1991, two years prior to Simmons acquiring the property in 1993. He has never attempted to connect to the four inch sewer after the fire, either before or after the 1993 project on Simmons land. He lacks knowledge about whether the sewer pipe, which at one time did pass over Lot 4A en route to Lot 3A, continues to exist in usable form on Lot 4A, having undertaken no engineering or survey investigation. Martin is clear that Simmons has never denied him the right to use a four inch sewer across Simmons land, and Simmons has stipulated to Martins right to use, and, if necessary, reinstall, repair, or maintain that line. Marc Knittle, the current leasing property manager for Cummings Properties, an affiliate of Simmons, testified that when he was project manager in the design department of Cummings Properties, working on the project in question, he prepared a demolition permit for the two now demolished buildings that did not list sewer pipe work as included in the removal of the buildings. Martin has failed to satisfy his burden of proving that Simmons caused the removal of, or otherwise interfered with, the removal of the sewer line.
The six-inch fire sprinkler pipe is certainly not unavailable as a result of anything caused by Simmons. Martin testified that the pipe had frozen, burst, and was never repaired prior to 1991, when fire consumed the building. In light of this chronology, Martin is entirely unjustified in his claim that it is Simmons responsibility to restore the six-inch fire sprinkler pipe so that he may benefit from its use in the future.
Martin, in his testimony about the one and one-quarter inch domestic water pipe, said that Simmons interfered with his use of the water pipe when Simmons demolished the two buildings on Lot 4A in 1993. Again, his contention is that because the one and one-quarter inch domestic water pipe ran through the basements of those two buildings, Simmons must have caused their removal. Martin has not proved that the pipe is not still in place running underground over Lot 4A, nor that the pipe is incapable of conveying water across Lot 4A if reactivated in the future. Martin believes that he would not be able to draw water through the pipe, owing to interference by Simmons, although he conceded that he could not positively say that the pipe under Lot 4A is inoperable. I find that Martin does not have any evidence showing the current condition of the one and one-quarter inch domestic water pipe, nor its true condition following the fire in 1991. Martin did testify that he does not have any firm evidence that Simmons or any representative of Simmons ever severed the one and one-quarter inch domestic water pipe. Marc Knittle, the current leasing property manager for Cummings Properties, testified that when he was project manager in the design department of Cummings Properties he prepared a demolition permit for the two now demolished buildings that did not list water pipe work as included in the removal of the buildings.
Martin is unable to satisfy his burden of proof regarding the four inch sewer, the six inch fire sprinkler pipe, and the one and one-quarter inch domestic water pipe. His conjecture and unsupported beliefs alone are insufficient to constitute proof. While there is some persuasive power to Martins observation that it was commonsense that one or more of these pipes were interfered with when Simmons demolished the two buildings on Lot 4A, that supposition standing alone does not persuade.
I emphasize that Simmons does not contest that Martin holds the rights, across its land, to use each of the pipes set out in his certificate. The only real dispute is about who has the obligation to see to it that those pipes actually exist and work. If Martin is correct in his thesis that these pipes have been either damaged or removed, because he is legally unable to assign liability to Simmons for that, then it is Martin who bears the responsibility for any restoration or repair to these lines which may be required. And absent some binding covenant in the title which imposes that duty on Simmons, a duty which does not appear in any of the registered documents or certificates of title, because he is the owner of the benefitted land, it is Martin who must take the steps necessary to make and keep the lines workable. It is an early rule of our law that, in the words of Chief Justice Shaw, [i]t must be also taken as an inference of law, in the absence of a grant or contract, that the party who enjoys the benefit of the easement is to keep it in repair. Prescott v. White, 38 Mass. 341 ( 21 Pick. 341 ), 342 (1838).
Regarding the eighteen and twenty-four inch drains, Simmons conceded that it has covered the eighteen-inch drain with asphalt and the twenty-four inch drain with fill and asphalt. Martin, testified that it is his belief that Simmons should remove the asphalt and fill from the drain covers and restore their use because Simmons is not entitled to make any change to the location of the drain openings, even if reasonable. Martin has the view that the locations of the drain openings must be the same locations as they were in at the time of the J Plan and Document No. 166939. Dennis Clarke (Clarke), president and CEO of Cummings Properties, testified as to the location of current working drain openings on Lots 4A and 20 (which are different than the now covered-up drain openings at issue). Clarke stated that there are at least three drain openings: one located to the south side of 196 [Boston Avenue] near the bottom of a depressed loading dock that serves 196 Boston Avenue, one near the stairway entry to the health club located in the 200 Boston Avenue building by the northeast corner of 200 Boston Avenue, and one between the 200 [Boston Avenue] building and the eastern property boundary between 200 Boston Avenue and the railroad property. None of these current drain openings are covered; they are in working order, and fully handle the collection and removal of the surface water generated on the site. Clarke testified credibly that he and his organization have received no complaints from anyone, such as the tenants in the buildings on Lots 4A and 20, that the drains are deficient, or that there is inadequate storm water drainage runoff on the site.
Simmons is not liable for the removal of the fill and asphalt over the drain openings formerly servicing the eighteen and twenty-four inch drains because there is no evidence that the purpose of the easement was frustrated by Simmons reconfiguration of the operative drain openings on its land. The easement only grants the right in common with others, to discharge water into the ... [two drain lines.] From the language of the easement, it is obvious that the easement is to drain water through these two lines leading, in part across the premises... to [a destination off-site.] The easement is to use the lines to conduct surface water off of Lot 3A into the lines running underground. While the easement notes that portions of [the] drains are shown on said Plans... the import of the provision is that Lot 3A gets the right to discharge water from its surface in a way which collects it in the drain lines underground and moves it away from the land involved. Martin has not shown how there is any obligation to maintain the surficial openings into the underground sewers in the same positions, and only the same positions, they happened to occupy in 1940. More importantly, he has not shown how the current array of drains does not serve his land adequately. There was no credible evidence that Lot 3A has any material drainage problems in its current, essentially vacant, condition. Nor was there evidence I accept that a reasonably foreseeable use of Lot 3A after a building might be built upon it would suffer from drainage difficulties. Indeed, it would be hard for Martin to have put in any such evidence, in light of the unsettled state of his redevelopment plans, and the lack of any expert witness evidence on his part about drainage and site conditions. The easement does not, as a benefit conferred upon Lot 3A, include a covenant that Simmons land not spill runoff onto Lot 3A, but in any event, there was no suggestion that any such problem exists. The only evidence was to the contrary, namely that the Simmons land seems to be adequately handling its surface water through the current working drain system.
I conclude that Simmons has no liability to Martin in connection with any of his allegations of interference with any of the subterranean pipes, sewers, and drains on the parties land. These claims all sound in tort and were pressed too late to meet the applicable statute of limitations. And on the evidence I heard, Martin simply has not carried his burden of proof on any of these allegations.
I will direct entry of a defendants judgment on all counts and claims.
[Note 1] Although the exhibit fifty photographs are in evidence, the annotations typewritten on the photographs by Martin were not admitted into evidence.
[Note 2] Lots 10 and 12 were combined in 1991 to form Lot 20.