MISC 09-415432

March 14, 2011


Grossman, J.


Danforth Village, LLC, (Danforth/plaintiff) initiated the instant suit seeking relief with regard to a twenty-five foot wide easement held by CSE Framingham, LLC (CSE/defendant) and burdening Danforth’s property. Count I of Danforth’s complaint seeks a declaration from this court that the easement has been extinguished by operation of the common law doctrine of merger. In the alternative, Count II seeks a declaration sanctioning Danforth’s relocation of said easement to a public way pursuant to M. P. M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). [Note 1]

In response CSE filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), arguing (1) that the relevant title documents conclusively establish the continued vitality of its easement, and (2) that M. P. M. Builders does not countenance the sort of unilateral relocation of an easement to the land of a third party, that occurred in this case.

The defendant asserts that as plaintiff’s claims lack merit as a matter of law, CSE is entitled to a dismissal of the complaint. This court concurs with the arguments advanced by CSE and will, accordingly, dismiss Danforth’s complaint.


Danforth Village, LLC, a Massachusetts limited liability company, has its principal place of business at 19 Brook Meadow Circle, Framingham, MA. [Note 2] CSE Framingham, LLC is a Delaware limited liability company with a principal place of business at 4445 Willard Avenue, Chevy Chase, MD. [Note 3]

Danforth holds title to land in Framingham which is delineated as Lots 993, 994, 995, 996 and 802 on Land Court Plan 3857-102 (Danforth’s property). See Complaint, ¶ 3 & Exh. A(3) (reproducing said plan). Danforth’s property derives from the division of a lot referenced as Lot 12A on Land Court Plan 3857-V. Compare Complaint, Exh. A (2) (reproducing plan 3857-V), with Complaint, Exh. A(3) (reproducing plan 3857-102). Danforth’s property is encumbered by a twenty-five (25) foot wide right of way (the disputed easement), depicted on the aforementioned Land Court Plans. The said way runs 463.50 feet in length from Danforth Street, a public way, to Lot 802 as depicted on Land Court Plan 3857-52, see Complaint Exh. C, “and an additional 200 feet over Lot 802 to the boundary of Lot 12B as shown on said plan.” [Note 4] See also Land Court Plan 3857-V. CSE is the current owner of Lot 12B.

The disputed easement was first created in 1924. See Complaint, ¶ 5. At that time, one Richard Wyman owned both Lots 12A and 12B. See ibid. Wyman created the twenty-five foot wide easement when he granted Lot 12B to one Emilia Dellamora. [Note 5] Included within the deed is the following recitation:

And I also grant…as appurtenant to said above described land a right of way twenty five feet wide running from the southerly line of said described parcel to Danforth Street along the westerly line of land of this grantor . . . for the ordinary uses of a private way. Ibid.

Danforth concedes that this language was carried forward in the chain of title to Lot 12B. [Note 6]

However, Danforth alleges that the easement was extinguished when Lot 12A and Lot 12B came into common ownership in 1959. [Note 7] According to Danforth, Frank Generazio took title to Lot 12B by deed dated September 3, 1937 from one Irving Rosenblatt. Generazio later sold Lot 12B to the New England Sand and Gravel Co., Inc. (NESG), [Note 8] by deed dated July 17, 1957. [Note 9] Danforth asserts that title to Lots 12A and 12B merged when Generazio conveyed Lots 993, 994, 995, 996 and 802 to NESG as embodied in Certificates of Title No. 98916 and 98918, both dated July 29, 1959. [Note 10] As noted, Lots 802 and 993 through 996 had been part of what was once denominated Lot 12A. It can readily be observed that those lots, however, do not together constitute the entirety of what had been Lot 12A, though they do make up the entire segment of Lot 12A that was burdened by the disputed easement. [Note 11]

After setting out the foregoing facts in its complaint, Danforth fails to provide this court with any of the title documents demonstrating the ultimate severance of the properties, although a title abstract is provided. [Note 12] However, in support of its motion to dismiss, CSE has supplied this court with other, subsequent, relevant title documentation demonstrating such purported severance.

The deed from NESG to 40 Speen Street Realty Company, a predecessor-in-title to CSE, dated May 24, 1988, conveyed Lot 12B and provided as follows:

. . . with the benefit of all appurtenant rights and subject to all easements and restrictions shown on such Certificate of Title [Certificate No. 92735]. [Note 13]

That Certificate of Title, in turn, recites, inter alia, that “[t]here is appurtenant to the above described land a right of way twenty-five feet wide running from the southerly line of said land to Danforth Street along the westerly line of lot 12A as shown on said [Land Court] plan.” [Note 14] CSE provides copies of other deeds, purporting to convey portions of the servient estate from NESG to Riverpath Associates, L. P. and to Frank W. Generazio, respectively. Both refer to Lots 993, 994, 995, 996 and 802 as being subject to the same twenty-five foot wide easement, by reference to registration documents. [Note 15]

Danforth also alleges that, at some point in the past, “Plaintiff’s Grantor, Frank Generazio, Jr., constructed [a way named] Hialeah Lane at its sole cost and expenses to Planning Board specifications. The road is a 70’ wide layout with a divided roadway with each lane being paved approximately 24 feet wide. The road ends at the boundary line of Lots 12A and 12B.” [Note 16] While Hialeah Lane was accepted by the Town of Framingham as a public way on February 5, 2005, Danforth nonetheless contends that “when it constructed Hialeah Lane, [it] had the intention of relocating any easement rights the Defendant had in the 25’ wide easement.” [Note 17]

Danforth filed its complaint on November 4, 2009, in which it set forth the foregoing facts and prayed that this court either declare that the easement benefiting CSE’s property has been extinguished by operation of the common law doctrine of merger, or that “the construction of Hialeah Lane by the Plaintiff created a relocation of the easement . . .” Complaint, Prayers for Relief, ¶ 2. Shortly thereafter, on December 16, 2009, Danforth filed a motion for an endorsement of a memorandum of lis pendens, which this court heard and denied on December 30, 2009, owing to a failure to comply with the certification requirements of G. L. c. 184, § 15(b).

CSE filed the instant motion to dismiss on December 23, 2009, with Danforth filing its opposition on January 6, 2010. CSE filed its reply brief on February 19, 2010, and Danforth filed its supplemental brief on February 25, 2010. CSE thereafter, on February 25, 2010, filed a motion to strike Danforth’s sur reply. This court heard CSE’s motions on March 2, 2010, denied its motion to strike and took the defendant’s Motion to Dismiss under advisement.


“The purpose of a motion to dismiss for failure to state a claim pursuant to rule 12(b)(6) ‘is to permit prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff’s claim is legally insufficient.’” Nguyen v. William Joiner Center for the Study of War and Soc. Consequences, 450 Mass. 291 , 295 (2007), quoting from Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 748 (2006). In Iannocchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), the Supreme Judicial Court clarified the standard for determining the sufficiency of a complaint under Rule 12(b)(6):

While a complaint attacked by a . . . motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all allegations in the complaint are true (even if doubtful in fact). What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement of [Fed R. Civ. P.] 8(a)(2) that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief.

Ibid., quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965, 1966 (2007) (quotations and citation omitted). In applying this standard, this court is to accept as true all factual allegations contained in the complaint, as well as “any favorable inferences reasonable drawn therefrom.” Eigerman v. Putnam Investments, Inc., 450 Mass. 281 , 282 (2007). Even with this highly favorable standard of review, this court is constrained to dismiss Danforth’s complaint.

As recited above, in its complaint, Danforth advances two arguments in the alternative: first, that the easement once benefiting property now owned by CSE has been extinguished by the common law doctrine of merger; and, second, even assuming the continued existence of the disputed easement, it has been successfully relocated to Hialeah Lane, a public way. As will be seen below, both arguments must fail as a matter of law, even if this court were to fully credit Danforth’s factual averments.

Each argument will be addressed in turn, below.

“Massachusetts courts have recognized the doctrine of merger at least since the mid-nineteenth century.” Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 497 (2008), citing to, e.g., Ritger v. Parker, 8 Cush. 145 , 146-150 (1851). By operation of that doctrine, when dominant and servient estates come into common ownership, the easement, benefiting the former and burdening the latter, extinguishes. See Restatement (Third) of Property (Servitudes) § 7.5 (2000). The doctrine operates in this way because, in such circumstances, “there is no practical need for the servitude’s continued existence, as the [common] owner already has ‘the full and unlimited right and power to make any and every possible use of the land.’” Busalacchi, 71 Mass. App. Ct. at 498, quoting Ritger, 8 Cush. at 147.

Under the decisional law, two prerequisites must be met before the doctrine may apply to extinguish an easement. The unity of title must be of indefeasible estates and the ownership interests united must be coextensive. Busalacchi, supra. [Note 18] This court need not contend itself with whether these requirements have been met here [Note 19] because, under the doctrine, “[a]lthough a subsequent conveyance of one of the commonly held parcels will not automatically revive the extinguished easement, the doctrine in no way precludes the common owner from recreating precisely the same easement by express reservation.” Ibid., citing to Ritger, 8 Cush. at 148. Here, the predecessor-in-title to CSE recreated the easement by express grant.

In Massachusetts, with exceptions not here relevant, the grant or reservation of an easement must be in writing, see Mason v. Albert, 243 Mass. 433 , 437 (1923) and must describe the easement such that it can be identified with reasonable certainty. See Oldfield v. Smith, 304 Mass. 590 , 599-600 (1939). [Note 20] As previously observed, the defendant’s predecessor-in-title acquired Lot 12B “with the benefit of all appurtenant rights . . . shown on such Certificate of Title [Certificate No. 92735].” That certificate, in turn, provides that “[t]here is appurtenant to the above described land a right of way twenty-five feet wide running from the southerly line of said land to Danforth Street along the westerly line of lot 12A as shown on said [Land Court] plan.” The defendant’s predecessor derived its title from NESG, which still owned the servient estate.

This court deems the quoted language, including the reference to the original grant of the easement which had been extinguished by merger, sufficient to recreate that easement by express grant. The language “with the benefit of all appurtenant rights,” together with the reference that properly described the easement sufficed to demonstrate the parties’ intent that the deed include the easement by express grant. In its opposition, Danforth fails to proffer any convincing explanation or cite to any authority for the proposition that such language is legally insufficient in this regard. The plaintiff would essentially have this court read the operative language as mere surplusage.

Setting aside the defendant’s argument that no unity of title ever existed that would have extinguished the disputed easement, and assuming, arguendo, that there was a merger of Lots 12A and 12B so as to effect such an extinguishment, [Note 21] this court is persuaded that the subsequent conveyance to CSE’s predecessor-in-title included the grant of an easement over the land remaining in the grantor. [Note 22] As such, Count I of the complaint, seeking a declaration that Danforth’s property is unencumbered by an easement benefiting CSE’s property, shall be dismissed.

Danforth’s Count II, advanced in the alternative, seeks this court’s approval, after the fact, for the relocation to a public way [Note 23] of the easement benefiting the defendant’s property. In its Complaint, the plaintiff seeks, inter alia, the following judgment:

On Count II, that the construction of Hialeah Lane by the plaintiff, created a relocation of the easement and all rights the Defendant may have had, were extinguished in the easement area. (emphasis added)

Moreover, in Plaintiff’s Opposition to the Defendant’s Motion to Dismiss,

Danforth includes the following language in its summary:

On Count II it is submitted that by blocking access to the easement at Danforth Street and creation of Hialeah Lane, the functional use of the easement was relocated to Hialeah Lane. (emphasis added)

While the Supreme Judicial Court’s decision in M. P. M. Builders altered to a significant degree the law of servitudes in this Commonwealth, this court believes that Danforth reads that holding too broadly.

In M. P. M. Builders the Supreme Judicial Court essentially jettisoned the existing rule at common law that, “once the location of an easement has been defined, it cannot be changed except by agreement of the parties.” Id. at 89-90, citing to, e.g., Anderson v. DeVries, 326 Mass. 127 , 132 (1950). In its place the court adopted § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which provides as follows:

Unless expressly denied by the terms of an easement as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burden of the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

In its holding, the Court made the following, critical observation:

In the absence of agreement between the owners of the dominant and servient estates concerning the relocation of an easement, the servient estate owner should seek a declaration from the court that the proposed changes meet the criteria in s. 4.8(3). Such an action gives the servient owner an opportunity to demonstrate that relocation comports with the Restatement requirements and the dominant owner an opportunity to demonstrate that the proposed alterations will cause damage. The servient owner may not resort to self-help remedies . . . and . . . should obtain declaratory judgment before making any alterations.” (emphasis added)

Id. at 93. [Note 24]

Plainly, M. P. M. Builders allows for a unilateral relocation of an easement, but only if a proposed relocation has first received judicial approval. In the case at bar, Danforth never obtained such a declaration; rather the plaintiff appears to seek court approval after the fact for the purported relocation. This court is not prepared to read into M. P. M. Builders, the right to relocate an easement, seeking judicial ratification thereafter. Such a reading would conflict with the language quoted above.

Finally, even assuming the M. P. M. Builders decision were held to countenance such actions by Danforth or its predecessor, this court is equally persuaded by CSE’s argument that M. P. M. Builders does not, in any event, authorize relocation of an easement to the land of a stranger. See Defendant’s Brief, p. 7, quoting Kitras v. Aquinnah, 64 Mass. App. Ct. 285 , 292 (2005) (holding, because “one may not grant what one does not own,” “easements can be created only ‘out of other land of the grantor . . . , never out of the land of a stranger’”) (ultimately quoting Richards v. Attleborough Branch R. R. Co., 153 Mass. 120 , 122 [1891]). Such relocation may be practically suitable with respect to the circumstances of this case, but, nowhere, in allowing for judicially-sanctioned relocation of an easement did the Supreme Judicial Court purport to allow the servient estate, in effect, to extinguish an easement when a nearby public way will serve the same purpose as the deeded right of way. M. P. M. Builders simply does not allow a servient owner to unencumber his property in this fashion.

In sum, Danforth’s second count fails on two bases: first by failing to abide by the mechanics mandated by M. P. M. Builders in requiring the servient owner to obtain a declaration before relocating an easement; and second for attempting to relocate the easement burdening its property, to the land of a stranger, the Town of Framingham. Accordingly, this court cannot, as a matter of law, sanction Danforth’s purported relocation of CSE’s easement to Hialeah Way.


For the foregoing reasons, this court is convinced that, as a matter of law, Danforth’s complaint fails to articulate claims for which it might obtain relief from this court. As such, this court is constrained to dismiss its complaint.

Accordingly, it is hereby

ORDERED that the defendant’s Motion to Dismiss be, and hereby is, ALLOWED. It is further

ORDERED that the plaintiff’s complaint be, and hereby is, DISMISSED. Judgment to enter accordingly.


By the Court (Grossman, J.).


Deborah J. Patterson


Dated: March 14, 2011.


[Note 1] Hialeah Lane is a “public way running roughly parallel to the easement.” Defendant’s Brief in Support of Motion to Dismiss, p. 1.

[Note 2] Complaint, ¶ 1.

[Note 3] Complaint, ¶ 2.

[Note 4] See Brief in Support of Defendant’s Motion to Dismiss, p.1; Plaintiff’s Opposition to the Motion to Dismiss, p.2; and Complaint, ¶ 4.

[Note 5] Complaint, ¶ 5, Exh. B.

[Note 6] Complaint, ¶ 6, Exh. D.

[Note 7] I.e. a merger of both the dominant and servient estates. See Complaint, ¶ 9.

[Note 8] Frank Generazio was the president and treasurer of this company. See Brief in Support of Defendant’s Motion to Dismiss (Defendant’s Brief), Exh. C.

[Note 9] Complaint, Exh. D.

[Note 10] The record is unclear as to when or how Generazio took title to these lots which were formerly part of lot 12A.

[Note 11] Complaint, Exh. A (3).

[Note 12] Complaint, Exh. D.

[Note 13] Brief in Support of Defendant’s Motion to Dismiss (Defendant’s Brief), Exh. C.

[Note 14] Defendant’s Brief, Exh. D.

[Note 15] Id. Exhibits E-G.

[Note 16] See Complaint ¶ 12, Exh. A(3).

[Note 17] See Complaint, ¶ 12. This court assumes that Danforth meant to suggest that it was Generazio, its predecessor-in-title, who intended to relocate the easement, because it was Generazio who, according to Danforth, constructed Hialeah Lane, and not Danforth itself.

[Note 18] The first requirement means that, for instance, “unity of title does not exist when two separate mortgages on two parcels are held by one person,” Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 108 (1933), notwithstanding that Massachusetts is a title theory state. See US Bank Nat’l Assoc. v. Ibanez, 458 Mass. 637 , 649 (2011). The second requirement, on the other hand, mandates that “the type of ownership interest being united be the same; fee simple absolute interest, for example, cannot be merged with an interest in joint ownership to extinguish an easement.” Busalacchi, 71 Mass. App. Ct. at 498, citing to, e.g., Atlanta Mills v. Mason, 120 Mass. 244 , 251 (1874).

[Note 19] This court assumes solely for purposes of this Motion that the easement was extinguished by the merger of 12B and those subdivided parts of 12A that were burdened by the original easement.

[Note 20] The cases, however, make exception for those instances in which extrinsic evidence may be employed to clear up doubt, ambiguity, or indefiniteness in the granting language creating the easement. See Oldfield v. Smith, 304 Mass. at 600. See also Burritt v. Lilly, 40 Mass. App. Ct. 29 , 31 (1996). In such cases an easement is created by express grant notwithstanding such formal infirmities. See Oldfield, supra. As this court considers the granting language as sufficiently clear in the first instance, resort to parol evidence is unnecessary.

[Note 21] While there may be merit to this claim, having surveyed the relevant decisional law this court is unaware of any case that has squarely addressed the issue presented by this suit: whether the merger of a dominant estate and those subdivided portions of the servient estate burdened by the easement, may suffice to extinguish the easement. This court, however, sees no need to decide this question in light of the express grant of an easement included in the severance of the commonly-held properties.

[Note 22] Danforth also provided this court with a document titled “Release OF Right of Way.” See Complaint, Exh. E. Through that instrument, RTM Framingham LLC, a predecessor-in-title of CSE, purported to release its interest in the disputed easement. See ibid. Notwithstanding its appending of this document to the complaint, Danforth suggests that the foreclosure through which CSE took title “raises some doubt as to the validity of th[at] Release Deed.” Complaint, ¶ 11. Danforth reiterates this position in its opposition to CSE’s motion to dismiss. See Plaintiff’s Opposition to the Defendant’s Motion to Dismiss, p. 3, ¶ 9. Accordingly, this court considers any argument concerning the extinguishment of the disputed easement by release or waiver as not properly before it; it expresses no opinion as to any such theory of extinguishment in this case.

[Note 23] Accepted by the Town of Framingham.

[Note 24] See also Town of Bedford v. Cerasuolo, 67 Mass. App. Ct. 73 , 78, n. 8 (2003).