FRANCIS J. McGOVERN and JOHN JOSEPH McGOVERN, as they are Trustees of the Francis J. McGovern Family Trust; FRANCIS J. McGOVERN; and PHYLLIS A. McGOVERN v. CHRISTINE M. McGOVERN and ANTHONY S. LEONTI.

This case was filed December 30, 2005 and concerns the use of a private road in Bedford, Massachusetts, known as Bagley Avenue. Christine McGovern and Anthony S. Leonti [Note 1] own of record Lot 151A, situated on the westerly side of Bagley Avenue. Francis J. McGovern and Phyllis A. McGovern own of record Lot 1 (145 Hartwell Avenue), situated on the easterly half of Bagley Avenue. Following trial, on May 19, 2008, the court (Piper, J.) rendered findings of fact and rulings of law from the bench, which as transcribed by the court reporter, constituted the decision in this case. Judgment entered on January 5, 2009, which declared the rights of the parties in and to Bagley Avenue. Defendants filed a notice of appeal on February 3, 2009.

The Land Court received the rescript from the Appeals Court on February 15, 2011, pursuant to the Appeals Court’s published opinion, McGovern v. McGovern, 77 Mass. App. Ct. 688 (2010). The Land Court’s January 5, 2009 Judgment was affirmed in part and reversed in part, and the case remanded for further proceedings. The subsequent proceedings in the Land Court were to determine the parties’ parking rights, if any, in Bagley Avenue, and, in particular, in a 20' x 50' paved area on the eastern side of Bagley Avenue.

1. Land Court Decision and Judgment

This court’s January 5, 2009 Judgment declared that the owners of Lot 151A own of record the fee of the westerly half of Bagley Avenue; that the owners of Lot 1 own of record the fee of the easterly half of Bagley Avenue; that “each fee simple owner of any portion of Bagley Avenue has, as to the portion of the fee of Bagley Avenue which they do not own, a perpetual non-exclusive easement and right of way to pass and repass on foot and by vehicle”; and that, as to the 20' x 50' “turnaround” or “parking area,” it was owned in fee by the owners of Lot 1, and “the owners of Lot 151A have no right of passage or any use of that area[.]” [Note 2]

Relevant here, regarding the 20' x 50' parking area on the eastern side of Bagley Avenue, the Land Court treated it as part of the way, and ruled that the right of passage over Bagley Avenue appurtenant to Lot 151A did not extend into the 20' x 50' area. Tr. 77:13-24. The court, however, left it open to the parties to stipulate to the use of that area, noting “I’m going to look to the parties to develop as much as they can by agreement the form of judgment that I will enter in this case, and I will reserve the opportunity to hear them on this.” Tr. 77:18-21.

2. Appeals Court Opinion

When the case was considered by the Appeals Court, it took a markedly different view than the trial court decision regarding the application of the Derelict Fee Statute. [Note 3] The Appeals Court ruled that the 1977 conveyance of Lot 1 did not include any interest in Bagley Avenue; instead, the owners of Lot 1 received in fee only land up to the narrow strip of grass that separated the boundary of Lot 1 from the bituminous concrete. 77 Mass. App. Ct. 688 , 696-99. [Note 4] As a result, the Appeals Court concluded that the 1986 conveyance of Lot 151A carried with it all the fee in Bagley Avenue, up to the edge of the strip separating the bituminous concrete and Lot 1, as a result of the operation of the so-called Derelict Fee Statute, G.L. c. 183, § 58. Id. at 698. Then, noting that “we are unaware of a case which has applied ... the equitable doctrine of reformation to the effects of the operation of G.L. c. 183, § 58...” the Appeals Court went on to direct that the Land Court, on remand, reform the 1986 conveyance to exclude the fee in Bagley Avenue, leaving it with the owners of Lot 151C. 77 Mass. App. Ct. at 699-702. [Note 5] The Appeals Court held that, following reformation of the 1986 deed, the fee in the way is to be held by the owners of Lot 151C, as successors to the grantors in the 1986 conveyance, and that the owners of Lot 1 and of Lot 151A both will enjoy easement rights as to Bagley Avenue. Id. at 701-702. [Note 6]

The Appeals Court remanded the case to the Land Court “for further proceedings consistent with this opinion, including reformation of the 1986 deed to retain ownership of the fee in Bagley Avenue in the grantor.” 77 Mass. App. Ct. at 702. In a footnote following that sentence, the Appeals Court states:

We note that the 2000 easement to Christine includes the entirety of Bagley Avenue, including the turn-around or parking area. To the extent that passage over that parking area facilitates ingress and egress to Lot 151A, the easement expressly allows such use. However, neither Frank’s nor Christine’s easement contains any express right to park on Bagley Avenue, and to the extent parking rights are claimed as within the scope of the parties’ respective easements, the record before us is insufficient to address the point. Any continuing issues as to the extent of the parties’ easement rights may be considered further on remand.

77 Mass. App. Ct. at 702 n. 19.

3. Easement Implied by Prior Use

Defendants filed a motion for entry of judgment after rescript on March 2, 2011. On March 22, 2011, the Land Court held a hearing on action to be taken following rescript, and determined entry of judgment would be premature in light of the instructions of the Appeals Court. Instead, the Defendants were directed to file a legal memorandum in support of their proposed judgment, the Plaintiffs were to respond, with the court then either to issue a judgment, or schedule a further hearing. After the briefs were filed, the court (Piper, J.) issued an Order Setting Case for Further Evidentiary Hearing, reasoning that “whether there exists an implied right to park on the road turns on genuine issues of fact that must be resolved[.]” See Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 372 (1997). [Note 7]

The evidentiary hearing regarding parking rights in the turnaround area [Note 8] was held on September 10, 2012. A court reporter was sworn to transcribe testimony and proceedings, and to produce a transcript, which was filed with the court on September 26, 2012. Posttrial briefs and requested findings of fact and rulings of law were filed by plaintiffs on October 23, 2012, and by defendants on October 26, 2012. On December 10, 2012, the parties returned to court with the court reporter present for closing arguments. Following argument, the parties were given the chance to file supplemental briefs regarding the 2000 deed of easement from Arlene Murphy to Christine Murphy. The court has received supplemental briefs from all parties, as well as the transcript of the final day of trial, thereafter took the matter under advisement, and now decides the case.

* * * * *

The issue in dispute is whether Christine McGovern and Anthony S. Leonti hold an implied easement to park on Bagley Avenue, and, in particular, in the 20' x 50' area across from Lot 151A on Bagley Avenue. Defendants argue that the court should declare that use of the 20' x 50' area to benefit Lot 151A at the time of the 1986 conveyance of Lot 151A from Hollis and Arlene Murphy (the “Murphys”) to Christine McGovern included by implication an easement to continue parking then underway in that area. Defendants contend that prior existing use of the parking area by previous tenants of 151A, combined with the reasonable necessity of having a nearby area to park their cars, dictate a finding that an implied easement was created at the time of the conveyance.

According to the Plaintiffs, Defendants have only an easement right to pass over the turnaround area, not an implied easement to park. Plaintiffs contend that even if Defendants were able to claim an implied easement, there was no clear intent on the part of the Murphys to grant a right to park in the 20' x 50' area.

On all of the testimony, exhibits, stipulations, and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and argument of the parties, I find and rule as follows:

1. Bagley Avenue is a private road in Bedford, Massachusetts that runs north from Hartwell Road to Lot 151C Bagley Avenue.

2. Christine McGovern and Anthony Leonti currently own and reside in a house on Lot 151A, a parcel of land located to the west of Bagley Avenue. Francis and Phyllis McGovern currently own and reside in a house on Lot 1, a parcel of land located to the east of Bagley Avenue. Lot 151C is located to the north of Bagley Avenue, at its terminus. Bagley Avenue is the sole and exclusive access road providing ingress and egress to Lot 151A; Lot 151A also fronts on Hartwell Road, but there is not now, and never has been, any drive or access way into Lot 151A directly off of the public Hartwell Road. Lot 1 currently has additional access by way of Hartwell Road, on which it fronts and where a driveway leads into the easterly side of the home on Lot 1. There is an additional driveway into Lot 1 from Bagley Avenue just a bit south of the disputed 20' by 50' cutout area. This driveway is paved, fairly wide, leads from Bagley all the way to the westerly side of the house there, and accommodates amply the parking of more than a few vehicles.

3. All of the above properties, including the private way, originally were part of a 45.5 acre parcel owned by Hollis and Arlene Murphy, the parents of Francis, John Joseph, and Christine McGovern, by deed dated August 5, 1974, and recorded with the Middlesex (South District) Registry of Deeds (the “Registry”) in Book 12699, Page 645. Prior to the 1974 deed, the land had been in the McGovern family since the mid-1940s.

4. Hollis and Arlene Murphy moved into the home located on Lot 151C in 1973. At the time, Bagley Avenue was just a dirt road. In connection with their move to Lot 151C, the Murphys caused Bagley Avenue to be paved, and first created the subject 20' x 50' area.

5. The parking area, as originally constructed, used railroad ties to form its retaining wall (the grade of the parking area being higher than the land to its east, on the sides away from Bagley Avenue). The obvious intention of those who created the 20' by 50' area is that it serve as an area for parking several cars side by side in an alignment roughly perpendicular to Bagley Avenue; this is obvious from much of the evidence, including but not limited to testimony regarding how the cutout came to be, and from the shape, orientation, and physical features of this area as it was put in and as it now and previously has existed on the ground. Railroad ties also were installed along the boundary, more or less, between Lot 151A and Bagley Avenue, for the entire length of Lot 151A, making transit by passenger vehicle from Bagley Avenue onto Lot 151A not possible.

6. From about 1972 or 1973 to 1978, Francis and Phyllis McGovern lived in the house on Lot 151A as tenants. Once the 20' by 50' area was constructed, Francis and Phyllis McGovern used that area to park as appurtenant to Lot 151A. This “bumpout” served from its inception as an area for vehicular parking.

7. By deed dated November 3, 1977 and recorded with the Registry in Book 13332, Page 565, the Murphys conveyed Lot 1 to Francis and Phyllis McGovern; Lot 1 contains 1.182 acres of land to the east of Bagley Avenue. Francis and Phyllis McGovern subsequently left the residence on Lot 151A and moved into one constructed on Lot 1.

8. The 1977 deed to Francis and Phyllis McGovern included an easement and right of way “to the Grantees their heirs and assigns to pass and repass, along with others entitled thereto, along and over a strip of land shown on said plan as ‘Bit. Conc. Driveway’ for the purpose of ingress and egress to or from the rear or any portion of said lot.”

9. The 1977 deed references a plan (“1977 Plan”) titled “Plan of Land in Bedford, Mass., for McGovern, Scale 1' = 40", Dated August 1, 1977, Joseph W. Moore Co., Land Surveyors, Civil Engineers, 16 Railroad Ave., Bedford, Mass.” The 1977 Plan is recorded with the Registry as Plan Number 1268 of the year 1977. The survey work involved in creating this plan was done by Roger M. Corbin.

10. From approximately 1978 to 1985, Kim and Allen Sutkus lived in the house on Lot 151A as tenants. During their tenancy at Lot 151A, the Sutkuses regularly used the 20' by 50' parking area for vehicle parking.

11. After the Sutkus family moved out of Lot 151A, Christine McGovern became a tenant there.

12. While Christine was a tenant at Lot 151A, her parents offered to transfer that property to her. To facilitate the transfer, Arlene and Hollis hired Roger M. Corbin, the surveyor who had prepared the 1977 Plan, to prepare a new plan to separate ownership of the residence parcel known as Lot 151A from the larger parcel owned by Hollis and Arlene remaining after the conveyance out of Lot 1 in 1977.

13. The resulting plan (“1985 Plan” or “Plan”) is that dated November 12, 1985, titled “Plan of Land in Bedford, Mass. (Middlesex County), Scale 1" = 40', prepared by BSC - Bedford, Roger M. Corbin, Registered Land Surveyor, and recorded January 14, 1986 with the Middlesex County (Southern District) Registry of Deeds (“Registry”) as Plan No. 44 of 1986 at Book 16708, Page End.

14. By deed dated January 31, 1986 and recorded with the Registry in Book 16770, Page 167, Hollis and Arlene Murphy conveyed Lot 151A to Christine McGovern. To convey this land to Christine, the Murphys had to obtain a variance for Lot 151A from the Town of Bedford because the lot did not have sufficient frontage or lot size.

15. After taking title to Lot 151A in 1986, Christine shared with her parents the costs of improving the 20' x 50' parking area. Christine contributed $1,592.50 to repaving the area and building a cinder block retaining wall to replace the then deteriorating railroad tie wall. Upon moving into the house on Lot 151A, Christine McGovern began using regularly the 20' by 50' parking area for vehicle parking.

16. There is no driveway located on Lot 151A. Even since the railroad ties that once lined Lot 151A along Bagley Avenue have deteriorated, given the grade of the property, constructing a driveway from Bagley Avenue onto Lot 151A has long been considered impractical by the owners of Lot 151A, and my view of the locus and of the evidence at trial convinces me they are right to have this opinion.

17. Christine McGovern enjoyed uninterrupted, nearly daily, use of the 20' x 50' area for vehicle parking from 1986 up until her mother Arlene’s death in 2006, after which her brothers contested her right to park in the area.

18. Defendant Anthony Leonti has been with Christine McGovern a resident at 151A Bagley Avenue since 1994. From 1994 until 2006, Mr. Leonti regularly used the 20' by 50' parking area for vehicle parking.

19. On December 2, 2000, Christine McGovern acquired a deed of easement from Arlene Murphy, recorded with the Registry in Book 32111, Page 418. This easement granted the right to pass and repass over Bagley Avenue, but was silent with regard to parking rights on the private way. This easement was identical to the easement granted to Francis and Phyllis McGovern.

20. Roger Corbin, the engineer responsible for the 1977 Plan that depicts the parking area, testified that his understanding, based on the dialog around the time of his work preparing the plans described above, the purpose of the 20' x 50' foot area was to allow the occupants of Lot 151A to park in a way that did not interfere with vehicle access to the back lot (Lot 151C). I credit Mr. Corbin’s testimony in this regard.

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An “easement by implication,” sometimes called “easement implied from (or based on) prior use,” is an “implied grant derived from an established pattern of prior use.” Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004). A court will find an easement by implication when there has been a severance of land once having common ownership, and until the severance, the common owner had made “an apparent and continuous use of one as if there had been a servitude imposed upon it for the benefit of the other,” and that “such servitude was reasonably necessary for the benefit” of the dominant estate. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104-05 (1933); Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 630 (1990). To find an easement implied by prior use, there must be (1) common ownership, (2) severance of common ownership by conveyance, and (3) an actual use at the time of severance, which use must have been “reasonably ascertainable” and “reasonably necessary for the enjoyment” of the dominant estate. Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985).

In determining whether an implied easement to park was created in the 1986 conveyance to Christine McGovern, I must determine the parties’ “presumed intent” at the severance of title. See Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 375 (1997). “Implied easements, whether by grant or by reservation, do not arise out of necessity alone. Their origin must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which the are chargeable.” Id. quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). The key to the inquiry is that “such easement is reasonably necessary, even if it is not an absolute physical necessity.” Mt. Holyoke Realty Corp., 284 Mass. at 100. “Where ... there is no actual physical necessity for an easement, it is a requisite element in the creation of an easement by implication ... that there then be an open and continuous use of one parcel for the benefit of another.” Dale, 305 Mass. at 108. As the parties asserting the implied easement, Defendants bear the burden of proving its existence. Mt. Holyoke Realty Corp., 284 Mass. at 105; Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990); Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 at n.1 (2006).

All the elements for an easement implied by prior use are satisfied in this case. The judgment that I direct enter will declare that Lot 151A is benefited by an appurtenant easement for vehicular parking in the 20' x 50' parking area. [Note 9]

Prior to the 1986 conveyance, both Lot 151C and Lot 151A were held in common by Hollis and Arlene Murphy; they also retained, as the Appeals Court has decided, fee title to both Bagley Avenue and the parking area projecting off a portion of Bagley Avenue’s eastern side. Prior to the severance of common ownership, tenants of Lot 151A had used the 20' x 50' area for parking in a continuous and frequent manner. At the time of the 1986 deed, use of the 20' x 50' area for parking by the occupants of Lot 151A was ongoing and open, and had been continuous for more than a decade prior.

The parking area is reasonably necessary for the enjoyment of Lot 151A. Lot 151A currently lacks a driveway, and the parcel’s shape and topography poses difficulties for constructing one. The vicinity offers few alternative areas where the Defendants may park their cars. Any effort to install a parking area within the limits of Lot 151A would, if possible at all, meet with considerable engineering challenges and be expensive. Use of the long-existing parking area, located directly across Bagley Avenue from the house, clearly contributes to enjoyment of the Defendants’ parcel. The parking area’s importance to Lot 151A and its owners goes beyond mere “convenience” and rises to the level of the reasonable necessity required to find an implied easement.

This alone is sufficient to infer an easement based on the open and ongoing use at the time of severance, and the presumed intent of the parties. In addition, the record contains ample evidence that a continued parking right in the now disputed area for the benefit of those living in Lot 151A was the actual intent of the parties. This evidence includes the fact that Arlene and Hollis Murphy, and Christine McGovern, agreed to share the costs of improving the area—the inference I draw being that there was an intent that Christine, as the new owner of Lot 151A, continue her use of the parking area. [Note 10] It also includes the earlier testimony of Roger Corbin, who observed that it was always the occupants of Lot 151A who benefited from the parking in the 20' x 50' area, and who were intended to do so. Finally, the placement of railroad ties along the border of Lot 151A with Bagley Avenue is further evidence of an actual intent not to insist on parking within the bounds of Lot 151A; the clear intention was that the occupants of Lot 151A were to continue parking in the convenient area right across Bagley Avenue.

Judgment will enter in this case that reforms the 1986 deed to exclude the fee in Bagley Avenue, in accordance with the direction of the Appeals Court. The Judgment also will declare the rights of the parties to pass and repass over Bagley Avenue, and the rights of the owners of Lot 151A to an appurtenant easement for vehicular parking in the 20' x 50' parking area. [Note 11]

Judgment accordingly.