Plaintiff Anarpet Realty Corp., (Anarpet) seeks a declaration of the rights of the parties in and to two private ways in Salem. The relevant parcels have had their titles registered and confirmed by this court. Anarpet, on whose parcel operates a child care facility, argued that the absence of express easements in the certificates of title of the defendants prevented them from using the private way abutting the land these defendants own. The defendants who are actively defending this suit, Stutz Motor Car Company, Inc.; Stutz Plaisted, individually; Stutz Plaisted as Trustee of Stutz Realty Trust; and Plaisted Properties LLC (collectively Stutz defendants) and Hometown Auto Framingham, Inc. (Hometown), have made use of the disputed ways in connection with an automobile dealership. These defendants contend that they enjoy easements absent express mention of them in the controlling record instruments and certificates of title. These defendants claim easements to use the disputed ways on a theory of estoppel, based on the depiction of the ways on record plans by which lots were conveyed out, under the familiar doctrine set out in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965), and other cases.
Anarpet pressed this case on the legal theory that the Murphy rule did not apply, and did not afford the defendants any easement rights, because the lands at issue all had registered land titles. However, the court, agreeing instead with the defendants on this central question, ruled on summary judgment that the defendants are not legally barred from using the Murphy doctrine to prove the existence of easements benefitting defendants lots simply because those easements do not appear on their certificates of title. See Anarpet Realty Corp. v. Stutz Motor Car Co., Inc., 18 LCR 527 (2010) (Misc. Case No. 07 MISC 352301) (Piper, J.). In its 2010 order, following review of the principles involved in this important and fluctuating aspect of the law of registered land easements, the court confirmed that in an appropriate case the Murphy doctrine might be used to demonstrate passage easements over and appurtenant to registered land; the court went on to conclude: There remains the need to determine, as to each of the lots of Anarpet and the Stutz defendants involved in this litigation, whether the principles outlined in this Order lead to the recognition of the easement rights claimed by the defendants in Green Ledge Street and the twelve-foot wide way. 18 LCR at 533.
After extended but ultimately unsuccessful efforts to resolve their dispute consensually, and following both transfer of title to much of the affected land to a new owner--the defendant Plaisted Properties LLCand the lease of it to defendant Hometown, the parties returned to the court to request trial of the questions left open in the wake of the summary judgment order. The trial focused on evidence: about the origin of and entitlement to the disputed easements; on the issue whether certain commercial activities by the defendants were exceeding the scope of any proven easements, and; on whether certain uses carried out by the defendants impermissibly interfered with plaintiffs use and enjoyment of its land and its own easements. The courts October 12, 2010 order is incorporated into this decision for all purposes.
II. PROCEDURAL HISTORY
Plaintiffs January 11, 2013 amended complaint contains the following counts:
1. Count One: Improper Use, Overburdening, and Interference with Rights to Use Green Ledge Street, Highland Avenue and the Twelve Foot Right of Way.
2. Count Two: Declaratory Judgment - G. L. c. 231A and G. L. c. 185 § 1 (k).
3. Count Three: Action of Trespass to Real Estate Involving Title to Real Estate, G. L. c. 185 § 1 (o).
4. Count Four: Nuisance.
5. Count Five: Complaint to Quiet Title, G. L. c. 240 §§ 6-10.
6. Count Six: Injunctive Relief.
Following the court's October 12, 2010 order on summary judgment, the parties were instructed to file a joint report on how they wished to proceed in this case. No report was filed, and on April 6, 2011, the court scheduled a pretrial conference. The pretrial conference was rescheduled three times at the request of the parties. On May 26, 2011, the court conducted what would be the first of three pretrial conferences. It appeared the parties were close to a consensual resolution, and the parties were directed to file a further report in twenty-one days. They did not, although their settlement efforts evidently remained active. On May 23, 2012, in response to inquiry from the court, the parties filed a report indicating that settlement discussions still were ongoing. The court instructed the parties to report the case fully settled, or to appear for a second pretrial conference August 9, 2012.
On June 19, 2012, the Stutz defendants filed a motion to dissolve the memorandum of lis pendens that had been registered against their title. Through counsel, they reported that the Stutz Motor Car dealership had been sold, was moving to a new location, and that the locus was no longer in use as a car dealership. Anarpet opposed, arguing that there nothing prevented a new dealership from opening up on the locus. (That opposition proved prescient.) The court denied the motion.
The second pretrial conference was held on September 20, 2012. At that point, with Stutz Motor Car no longer operating at the locus, it seemed especially promising that settlement was possible. Nonetheless, the court instructed parties to prepare the case for resolution by the court. It appeared that parties were willing to stipulate to a number of basic facts: the fee ownership of both disputed ways, Green Ledge Street and the 12 foot right-of-way; to which lots had title, including easements, based on their conveyance by or along one of these ways; and more generally to the conveyancing history of the lots involved. It also appeared that the overburdening issues would be settled. Absent full agreement, counsel urged that all remaining issues in the case could be submitted to the court for decision on a case stated basis.
Despite those assurances, this long-running case then took a sharp turn in the direction of complexity and disagreement. In December, 2012, the court heard the parties on a motion for joinder. Hometown Auto Framingham, Inc., lessee of the Stutz dealership parcels, who would operate on them a new and active Mazda dealership, became a party to this case. The court held a status conference on February 20, 2013 where Hometown announced it would be filing a motion to dismiss. The court instructed parties to hold May 13 through 16, 2013 for trial.
On February 22, 2013, Anarpet filed a Motion to Take as Established and Conclusive Admissions by Defendant Stutz Plaisted as to Having No Rights to the Twelve Foot Right of Way. On February 27, 2013, Hometown filed its motion to dismiss; later that day, Anarpet filed its opposition to the motion to dismiss. The next day, the Stutz defendants filed an opposition to Anarpets motion regarding admissions, and a cross motion for relief from same; later that day, Anarpet filed an opposition to the Stutz cross motion. On March 6, 2013, the Stutz defendants filed a Second Motion for Partial Summary Judgment. Two days later, Anarpet filed a motion for preliminary injunction against Hometown. Four days after that, on March 12, 2013, Anarpet filed a motion to strike the Stutz defendants Second Motion for Partial Summary Judgment.
On March 19, 2013, the court held a hearing on all the pending motions, and made the following rulings from the bench, which were reflected in the courts docket for this case:
(1) Motion to Dismiss is DENIED; Hometown Auto is Proper Party as Lessee and Operator of Auto Dealership on Locus. Plaintiff Appropriately Seeks Judgment Against Hometown Auto RegardingExistence and Scope of Easements Which Hometown Auto Currently Uses as Part of its Business, and Asks for Judgment Enjoining Current Dealership Use of Disputed Ways, currently Carried Out Largely by Hometown Auto and its Invitees. (2) Plaintiff's Motion to Take as Established and Conclusive Admissions by Defendant Plaisted is ALLOWED and Cross-Motion for Partial Relief from Admissions is DENIED Because (a) Plaintiff Would Suffer Prejudice if Unable to Rely on Long-Standing Admissions, Made in February 2008, In Light of Upcoming May, 2013 Trial; and (b) Relief From Admissions Would Be Futile. The Lots Subject to the Admissions (that they Have No Rights in the 12-Foot Right-of-Way) Do Not Abut the 12-Foot Way. Court Is Aware of No Legal Theory Available to Defendants Under Which These Lots, Title to Which Has Been Registered Under G.L. c. 185, Could Acquire Non-Record Rights in a Way Which They Do Not Abut, and Defendant Plaisted Failed to Identify Any Such Viable Theory. Denial is Without Prejudice to Defendants Filing Motion for Reconsideration Based on Some Well-Articulated and Supported Legal Theory Not Yet Argued to Court. (3) No Action at this Time on Motion for Preliminary Injunction and Related Motion(s) to Strike. Hometown Auto's Counsel Expressed Willingness to Cooperate with Plaintiff's Counsel to Arrive at Interim Stipulation in Lieu of Injunction to Control Use of Disputed Ways Pending Trial and Decision on Merits, and All Parties Committed to Consider in Good Faith Such a Stipulation. Unless Parties File, By Tuesday, March 26, 2013, a Joint Stipulation in Lieu of Injunction that Takes Away Need for Court to Rule, Court Will Either Grant or Deny Injunction Based on the Record Assembled, or Defer Decision Until Record Can Be Expanded at Trial, Mass. R. Civ. P. 65 (b) (2). (4) For Substantially the Reasons Set Forth in Plaintiff's Motion to Strike, the Motion for Summary Judgment of Defendants Plaisted is DENIED.
On April 5, 2013, the court issued an Order on Application for Preliminary Injunction, Motion for View, and Related Motions to Strike, which denied the request for injunction. The order on injunction is incorporated into this decision for all purposes. The third pretrial conference was held April 18, 2013; the court directed that trial wold proceed as scheduled on May 13, 2013.
In the presence of counsel and several representatives of the parties, on May 8, 2013 I took a view of the locus, including the disputed rights of way, each of the lots adjoining them, and the surrounding area. The trial in this case opened May 13, 2013, and proceeded for four days. On May 16, 2013, trial adjourned until May 30, 2013. Over the course of five days of trial, thirty- seven exhibits were admitted into evidence, some in multiple parts, and eight witnesses testified. A court reporter (sometimes two) was present at all times to create a transcript of the testimony and proceedings. At the end of trial day five on May 30, 2013, when the taking of evidence concluded, the court suspended the trial. Counsel were instructed to await the receipt of the trial transcript, to file and serve posttrial legal memoranda and proposed findings of fact and rulings of law, and that trial would resume for closing arguments. The transcripts were filed, post-trial written submissions made by counsel and reviewed by the court, and the case later argued by counsel. I now decide the case.
III. FINDING OF FACTS
Based on all the evidence, and the reasonable inferences I draw therefrom, I make the following factual findings:
1. Anarpet, under certificate of title number 41821, dated February 11, 1972, is the owner of lot 661 located on the northerly side of Green Ledge Street, as shown on Land Court Plan 11802-26 (dated February 17, 1966).
2. Anarpet, under certificate of title number 47686, dated March 23, 1978, is the owner of lot 567H located to the north of, and partially abutting, a twelve foot wide way (the 12 foot right-of-way) as shown on Land Court Plan 11802-2 (dated July 23, 1951).
3. Plaisted Properties, LLC is the record owner of lots 561 and 562, located on the northerly side of Delcampo Avenue and south of Green Ledge Street (separated from Green Ledge Street by Lot 564) as shown on Land Court Plan 11802-D, dated May 5, 1928, and lots 564 and 563A, which are located on the southerly side of Green Ledge Street on the same 11802-D plan. Lots 561, 562, 564, and 563A are all owned under transfer certificate of title number 83369, dated August 14, 2009.
4. Plaisted Properties, LLC is the record owner of lots 565 and 566, located on the southerly side of Green Ledge Street as shown on Land Court Plan 11802-D (dated May 5, 1928). Lot 565 is held under transfer certificate of title number 83371, dated August 14, 2009. Lot 566 is held under transfer certificate of title number 83370, also dated August 14, 2009.
5. Plaisted Properties, LLC is the record owner of lot 575, located on the northerly side of Green Ledge Street and the westerly side of Highland Avenue as shown on Land Court Plan 11802-9, dated October 5, 1957, under transfer certificate number 83373, dated August 14, 2009.
6. Plaisted Properties, LLC, under transfer certificate of title 83372, again dated August 14, 2009, is the owner of lot 660 located on the northerly side of Green Ledge Street as shown on Land Court Plan 11802-26, dated February 17, 1966.
7. Plaisted Properties, LLC, under transfer certificate of title 83375, is the owner of lot 589 located on the southerly side of the 12 foot right-of-way as shown on Land Court Plan 11802-15, dated May 31, 1960.
8. All the land at issue in this case (locus), just described, has had its title registered and confirmed by this court long ago, and the relevant certificates of title and plans of registered land are on file at this courts Essex (South District) Land Registration District (District)).
9. The locus last was shown as a single parcel, Parcel C, on a plan titled Plan of Land in Salem dated October 1, 1926 by Thomas A. Appleton, and filed with the Land Court as plan no. 11802-A, sheet 1. Parcel C was owned at the time by Frederick H. Griswold (Griswold) to whom the District issued the original certificate of title, no. 7091.
10. Plan no. 11802-D, filed with this court August 31, 1928, shows a subdivision of Parcel C, and the creation of two private ways, Delcampo and Green Ledge Street. Relevant here, lots 561, 562, 563, 564, 565, and 566 are shown between Delcampo and Green Ledge Street, and lot 567 is shown to the northeast of Green Ledge Street. [Note 1]
11. Lot 563 was conveyed from Griswold to Anthony Frisone and Frank Frisone on July 14, 1928. The deed, filed with the District as Doc. No. 21131, describes the parcel as being Lot numbered 563 on Plan # 11802-D. The deed further provides a metes and bounds description where lot 563 is described as bounded North-easterly by Green Ledge St.
12. Lot 564 was conveyed from Griswold to John Lazarus on August 1, 1929 by deed filed with the District as Doc. No. 21815. This deed describes the land conveyed as bounded. . . North-easterly by Green Ledge Street[,] and as Lot numbered 564, sheet # 1, on the 11802-D plan.
13. Lots 565 and 566 were conveyed from Griswold to Bartolomeo Fantozzi and Rose Fantozzi by deed dated September 4, 1929, and filed with the District as Doc. No. 21543. The land conveyed is described as Lots numbered 565-566 on the 11802-D plan, and as being bounded. . . North-easterly by Green Ledge Street[.]
14. Lot 567 was first conveyed out from Griswold to William H. Ximiness and Roy B. Ximiness by deed dated September 29, 1930 and filed with the District as Doc. No. 23801. The conveyed land is described as Lot #567 on the 11802-D plan, and as being bounded. . . Southwesterly by Green Ledge Street[.]
15. At this point in 1930, Griswold no longer held any land on either side of Green Ledge Street. Each conveyance by Griswold referred to a plan showing the lot abutting Green Ledge Street, and describing the lot as bounded by Green Ledge Street.
16. Through mesne conveyances, Plaisted Properties LLC currently owns lots 563, 564, 565, and 566. At no time since their creation in 1928 has lot 563, 564, 565, or 566 been conveyed by instrument containing a reservation of the fee by the grantor.
17. Lot 567 was conveyed by deed dated September 19, 1932 to Annie E. Brown, using essentially the same description as the prior deed to Ximiness. The 1932 deed is registered as Doc. No. 27389. The next conveyance of lot 567 apparent from the record in this case is from Michael R. Connolly to Wilfred Pelletier and Alphonsine Pelletier (Pelletiers), by deed dated June 20, 1935 and registered as Doc. No. 31504. There is no reservation of the fee in Green Ledge; the land conveyed is described as bounded by Green Ledge, and with reference to the 11802-D plan. [Note 2]
18. Lot 567 was subdivided over time to become lot 575, lot 567H, lot 589, lot 659, lot 660, lot 661, and the 12-foot way (along with several other parcels not at issue in this case). 19. Relevant here, the 11802-Y plan depicts lot 567 having been divided into lot 567A, 567C, 567F, and 567H. Only a portion of lot 567H will become our locus. At this time, lot 567H is still owned by the Pelletiers, and runs the length of Green Ledge Street from Highland back to the land of the trustees of the Almy Trust. 20. Lot 567G was by the 11802-2 plan divided further into lots 567H, 567I, 567J, 567K, and 567L. The 12 foot right-of-way first gets depicted on the 11802-2 plan. The 11802-2 plan was filed with this court November 29, 1951. Lot 567H currently is owned by Anarpet, see infra next para. Lot 567L and 567J will become locus. At the time, lot 567J had 150 feet of frontage on Green Ledge Street, and otherwise was surrounded on its remaining three sides by lot 567L. The 11802-2 plan shows Lot 567L with frontage on Highland and Green Ledge Street. 21. The first separate conveyance of lot 567H was by deed from the Pelletiers to James George, dated November 30, 1951, and filed with the District as Doc. No. 64566. The conveyed land is described as Lot 567H on what would become the 11802-2 plan, and is further described as bounded Southwesterly by the end of a twelve (12) foot Right of Way where the words the end of were handwritten in over a caret. The parcel is conveyed [w]ith the right to use for all purposes for which a right of way may be used a way twelve (12) feet in width and shown in [sic] said plan. . . . Anarpet now owns Lot 567H. [Note 3]
22. The 12 foot right-of-way was shown as extended to its current location on the 11802-9 plan of October 4, 1957. Relevant here, the 11802-9 plan creates lot 575 out of a portion of what was lot 567L. The remainder of lot 567L, which was renamed lot 576, retains some frontage on both Highland Avenue and Green Ledge Street.
23. Lot 575 first was conveyed out from the Pelletiers to Tremarco Corporation by deed dated October 4, 1957, filed with the District as Doc. No. 83908. The language of the deed conveys lot 575 with reference to the 1957 plan drawn by Edwin T. Brudzynski (that would become 11802-9), which depicts lot 575 abutting Green Ledge Street and Highland Avenue. Lot 575 is referred to as bounded. . . NORTHWESTERLY by Green Ledge Street and there is no reservation by the Pelletiers of the fee in any portion of Green Ledge Street.
24. The 11802-14 plan, filed with the Land Court on March 24, 1960, created lot 587 from the portion of former lot 576 (which is renamed lot 588) that had frontage on Highland Avenue. No portion of the new lot 576 abuts Green Ledge Street; the new lot 588 continues to have frontage on Green Ledge Street.
25. Lot 587 and lot 567K were first conveyed from the Pelletiers to James L. Wescott by deed dated March 25, 1960, and filed with the District as Doc. No. 92500. The deed describes each parcel as bounded on a line by the way and contains the following language: Together with the right to use as a passageway with others entitled thereto, the way shown on said plan and adjoining the granted premises. . . The adjoining way is the 12 foot right-of-way. At the time this case commenced, lot 587 and lot 567K were owned by the trustees of the JLW Realty Trust. On or about June 4, 2008, the then-parties to this action entered into a written stipulation that the owners of Lot 567K and Lot 587. . . holds the right to use the twelve foot right of way, as described in the deed, and any declaratory judgment and/or order of the Court as to the rights of parties to use the twelve foot right of way shall include, reference, and acknowledge the rights of Defendant JLW Realty Trust to pass and repass over said twelve foot right of way.
26. Lot 589 is created by the 11802-15 plan, which was drawn May 2, 1960 and filed with the court on May 27, 1960. Lot 589 was carved out of the former lot 588 (as shown on the 11802-14 plan), which is now designated Lot 590. Lot 590 retains frontage on Green Ledge Street, and surrounds lot 657J on three sides.
27. Lot 589 was first conveyed by the deed from the Pelletiers to William F. Haight and Dorothy M. Haight, dated May 7, 1960, and filed with the District as Doc. No. 93203. The lot is described with reference to the 11802-14 plan (which depicts the 12-foot way), and described as proceeding in a southeasterly direction along side the right-of-way for a distance of 47.24 feet[.] The lot is conveyed together with the right to use in common with others the 12 foot right-of-way extending from Highland Avenue. . . , and extending along the entire northeasterly side of Lot 589, the granted premises. Lot 589 is currently owned by Plaisted Properties LLC. No portion of lot 589 abuts Green Ledge Street.
28. The 11802-23 plan, filed with the Land Court on November 16, 1963, created lots 652, 653, and 654 out of the former lot 590 on the 11802-15 plan. No part of the new lot 653 is now locus in this action. Lot 652 is shown abutting the 12 foot right-of-way but not abutting Green Ledge Street. Lot 654 continues to abut Green Ledge Street, and surrounds lot 567J on three sides.
29. Lot 652 was first conveyed from the Pelletiers to Leonard Spence by deed dated October 30, 1963, and filed with the District as Doc. No. 108306. The deed describes the land conveyed as proceeding in a southeasterly direction along a twelve foot right of way. . . The deed further states the conveyance is [t]ogether with and subject to the right to use as a passageway with others entitled thereto, the 12 foot right of way. . . At the time this case commenced, lot 652 was owned by the Trustees of the 305 Highland Avenue Salem Realty Trust. On or about July 24, 2008, the then-parties to this action entered into a written stipulation that lot 652. . . has the right to use the twelve (12) foot right of way. . . , as a passageway with others entitled thereto, and any declaratory judgment and/or order of the Court as to the rights of parties to use the twelve (12) foot right of way shall include, reference, and acknowledge the rights of defendant, Highland Avenue Salem Realty Trust to pass and repass over said twelve foot right of way.
30. The 11802-26 plan, drawn February 17, 1966, essentially takes lot 654 and lot 567J (both as shown on the 11802-23 plan), and creates from them lots 659, 660, and 661. All three of the new lots have frontage on Green Ledge Street; none abut any other way shown on the 11802-26 plan.
31. Lot 660 was first conveyed out from the Pelletiers to William F. Haight and Dorothy M. Haight by deed dated June 3, 1966 and filed with the District as Doc. No. 119979. The 1966 deed refers to the land conveyed as Lot 656 on plan entitled Subdivision of Lots 567J & 654 shown on Plan 11802-23 filed with Cert. No. 33466 South Registry District of Essex County Scale 1 in. = 60 ft. Feb. 17, 1966 Edwin T. Brudzynski Surveyor to be recorded herewith. The parties all seem to agree that, despite identifying the lot as Lot 656, this was intended to convey lot 660. There is no lot 656 depicted on the referenced plan. The following language appears in the 1966 deed of lot 660: This conveyance is made together with and subject to a right of way in and over Green Ledge Street as shown on said plan, (a private way) in common with others entitled thereto for all purposes for which public ways are or may be ordinarily used. At this point, William F. Haight and Dorothy M. Haight also own the abutting lot 589.
32. Lot 659 was first conveyed out from the Pelletiers to Leonard B. Spence and Virginia Spence by deed dated June 3, 1966, filed with the District as Doc. No. 119981. The language of the deed conveys lot 659 with reference to the February 17, 1966 plan drawn by Edwin T. Brudzynski (that would become 11802-26), which depicts lot 659 abutting Green Ledge Street. The deed also contains the following language: This conveyance is made together with and subject to a right of way in and over Green Ledge Street as shown on said plan, (a private way) in common with others entitled thereto for all purposes for which public ways are or may be ordinarily used. At the time this case commenced, lot 659 was owned by the Trustees of the Green Ledge Realty Trust. On or about July 24, 2008, the then-parties to this action entered into a written stipulation that Lot 659. . . has the benefit of a right of way in and over Green Ledge Street. . . and any declaratory judgment and/or order of the Court, as to the rights of parties to use this right of way shall include reference and acknowledge the rights of defendant, Green Ledge Realty Trust to use the way in common with others entitled thereto for all purposes for which public ways may be ordinarily used. At this point in 1966, Leonard and Virginia Spence also owned the abutting lot 652.
33. Lot 661 was first shown on the 11802-26 plan, and was first conveyed by the Pelletiers to Petro A. Theophilopoulos and Anastasia Theophilopoulos by deed dated December 1, 1967, and filed with the District as Doc. No. 125823. The 1967 deed refers to the land conveyed as Lot 661 on the 11802-26 plan, and describes the parcel as bounded. . . SOUTHWESTERLY by Green Ledge Street[.] The 1967 deed contains the following language: The above described land is subject to and has the benefit of a right of way in and over Green Ledge Street, a private way, as shown on said plan, in common with others entitled thereto for all purposes for which public ways are or may be ordinarily used.
34. The transfer certificate of title for lot 661, cert. no. 41821, references a utilities easement dated June 9, 1960 and registered with the District as Doc. No. 93402. The easement itself is a grant from the Pelletiers to New England Telephone and Telegraph Company and Merrimack-Essex Electric Company and their successors and assigns forever the right and easement to erect, operate, maintain and remove a line of two (2) poles, with the necessary cables, wires, anchors, guys, supports and fixtures thereon for the transmission of electricity and the transmission of intelligence by electricity upon and over above mentioned parcel of land, and for service and lamp connections, . . . also the right and easement from time to time to renew, replace and to otherwise change said line and each and every part thereof, with the right to place anchors and guys to support line within said parcel of land. The attached plan shows two poles being placed on lot 567J.
35. Prior to coming to Plaisted Properties, LLC, the conveyancing history of lot 589 is as follows:
From the Pelletiers to William F. Haight and Dorothy M. Haight, by deed dated May 7, 1960, and filed with the District as Doc. No. 93203; then from the Haights to Frank R. DAmato, June 30, 1978, Doc. No. 166280; then from DAmato to Bradley James, Trustee of J.L.J. Realty Trust, July 5, 1990, Doc. No. 255334; then from James, Trustee to Stutz Plaisted, July 20, 1990, Doc. No. 255662.
36. Prior to coming to Plaisted Properties, LLC, the conveyancing history of lot 660 is as follows:
From the Pelletiers to William F. Haight and Dorothy M. Haight by deed dated June 3, 1966 and filed with the District as Doc. No. 119979; then from the Haights to Hewitt Construction Co., Aug. 3, 1970, Doc. No. 134985; then from Hewitt Construction to Harry and Elliott Hewitt, Trustees of Greenledge Realty Trust of Salem, July 2, 1971, Doc. No. 140899; then to Greenledge Nominee Realty Trust, Dec. 22, 1986, Doc. No. 219804; then to Stutz Plaisted, Sept. 25, 1997, Doc. No. 334047.
37. When Stutz Plaisted first acquired lots 563A, 564, 565, and 566 there existed substantial amounts of ledge and mounds of earth on portions of those lots and along the southwesterly side of Green Ledge Street, running the length of the way from lot 563As border with Highland Avenue, to the eastern terminus of Green Ledge Street.
38. In places, the ledge was so significant as to render Green Ledge Street impassible, and portions of lots 565 and 566 largely unusable.
39. Over time, Stutz Plaisted or his agents blasted away much of the ledge, opening up lots 564, 565, and 566 for development, and allowing the use of the easterly portions of Green Ledge Street. This undertaking commenced in the 1960s (as to lots 563A and 564), and continued for years (the rear, easternmost lots, 565 and 566, were acquired in 1998).
40. A substantial amount of ledge material was removed. The original height of the ledge was great in places, rising up to or exceeding thirty feet.
41. Prior to the removal of the ledge, much of the access to, and use of, the Plaisted lots was dictated and limited by the presence of ledge. For example, lots 563A and 564 historically were accessed by what now is called DiPietro Avenue (formerly Delcampo Avenue) to the southwest.
42. In or around 2003, Plaisted paved the portion of lot 660 now referred to as the U-turn, a driveway strip which traverses lot 660 and lot 589, and which in its combined route across those two lots connects Green Ledge Street with the 12 foot right-of-way. Use of the U-turn to travel between Green Ledge Street and the 12 foot right-of-way predates Plaisteds ownership of the two lots.
43. The 12 foot right-of-way was paved in or around the early 2000s. Prior to that, it was a gravel way.
44. Green Ledge Street is built out and paved, more or less, to its forty-foot layout. There is no outlet from Green Ledge Street to the land to southeast (referred to as the Almy Trust land on the plans). Instead, Green Ledge Street terminates into the ledge in the vicinity of lots 659 and 566. As shown on the plans, Green Ledge Street is about 520 feet in length.
45. The entire locus is within a commercial or business zoning district within the City of Salem.
46. There are no buildings on lot 659; it remains unimproved and is used for storage of materials.
47. Lot 567H contains a hardware store or lumber yard known as One Way Lumber.
48. Lot 563A is used as an automobile showroom by Hometown (and previously by the Plaisteds dealerships). Lots 564, 565, and 566 are mostly used for parking and storage of the dealerships inventory vehicles. Lot 660 contains a service garage structure associated with the auto dealership use. There are no buildings on lot 589. Lot 575 has on it a smaller service center improvement, but has a large paved area on most of it where cars associated with the dealership also park.
49. A preschool or daycare center, Young World Academy, operates on Anarpets lot 661.
50. Anarpet had installed about half a dozen security cameras on lot 661 in 2008 or 2009. Several of these captured video of events taking place outside the Young World Academy, including some shots covering the daycare parking lot, as well as of part of Green Ledge Street and of nearby lots occupied by Hometown. Much of the testimony of Arthur Theophilopolous about the use by Stutz or Hometown was gleaned by Arthur Theophilopolouss viewing of the security camera footage, and the creation of either screen shots, or short videos, from the footage.
51. Lot 661 has been used as a preschool or daycare facility since approximately 1974.
52. The Plaisted family has been operating a car dealership on the locus since the early 1970s. Historically, the showroom has always been on lot 563A and the large service center on lot 660. Commercial vehicles, trucks, and inventory vehicles have always used Green Ledge Street to get between lots 563A and 660.
53. The showroom on lot 563A generally is accessed by the public over DiPietro Avenue, not Green Ledge Street. The car dealers sales customer parking is mainly confined to the DiPietro side, on lot 561 and lot 562, neither of which lots have frontage on Green Ledge Street.
54. Since January, 2013, Hometown has operated an active Mazda dealership on the locus.
55. Vehicles are delivered to Hometown by two types of car carrier. The larger car carriers are between fifty-four feet and seventy-five feet in length, and can transport approximately ten vehicles. The smaller carriers are of the flatbed variety generally, and usually transport only one or two vehicles at a time. Hometown also takes delivery of auto parts, and other supplies associated with their business. These deliveries, for the most part, arrive in standard box trucks.
56. The larger car carriers are too long simply to turn around within the layout of Green Ledge Street.
57. Highland Avenue in the vicinity of the locus is divided so its northbound lanes, nearest the locus, are kept separate from the southbound lanes. All traffic, including trucks, which enter Green Ledge Street from Highland Avenue use the northbound side of Highland. Car carriers accessing Green Ledge Street from Highland often have to make a wide right hand turn; this sometimes involves starting from (or swinging into) the left hand lane on Highland, crossing the right hand lane during the turn, and turning into the westbound, oncoming traffic side of Green Ledge before the car carrier can straighten out and occupy only the eastbound traffic side of Green Ledge. The same maneuvers happen in the opposite way when car carriers are exiting Green Ledge Street onto Highland. They need to move far enough to the south on Green Ledge to manage the wide turn onto the northbound side of Highland, and will need as well to pass into, or at least over, the farther, western traffic lane on Highland before straightening out in a single lane and proceeding.
58. Occasionally, a car carrier will make a three-point turn by backing into lot 575 from Green Ledge Street. This maneuver might block traffic while it is underway, but this does not occur with frequency, and there is no testimony that I credit that traffic ever has been impeded for more than a few minutes.
59. Car carriers, tow trucks, and other vehicles associated with the car dealership use have at times, though not regularly, pulled briefly into Anarpets lot 661 to park, turn around, or maneuver.
60. Car carriers, other tractor trailer vehicles, and box trucks traveling east on Green Ledge on occasion have used the U-turn on lot 660 and lot 589 to access the 12 foot right-of- way, as an alternative to turning around (or backing up) to exit directly from Green Ledge Street out to Highland Avenue.
61. There was some testimony from one witness, David Wescott, that he was unhappy with trucks on the 12 foot right-of-way that he attributed to the auto dealership. Mr. Wescott operates, with his brother, the Instant Alarm Company on lot 587. Mr. Wescott further testified he did not think One Way Lumber (on Anarpets lot 567H) used the 12 foot right-of-way (lot 567H has frontage on Highland Avenue).
62. There is no testimony or other evidence that lot 567H has suffered any interference with its easement rights over the 12 foot right-of-way as a result of traffic on that way coming or going from one or more of the car dealership lots.
63. The large car carriers take between forty-five minutes and eighty minutes to unload the cars they have transported to the site.
64. For the most part (excluding the use of Highland Avenue for unloading), [Note 4] prior to March, 2013, car carriers would turn onto Green Ledge Street from Highland, drive past Anarpets lot 661, and position the car carrier to unload cars on the side of Green Ledge Street adjacent lots 565 and 566. The car carriers would then, apparently, have trouble turning around, and would sometimes end up reversing the length of Green Ledge Street, or using Anarpets lot to turn around.
65. After March, 2013, Hometown instructed car carriers to use lot 575 to unload. Car carriers can pull into lot 575 head first, or they can back in. When pulling in, the car carrier turns off Green Ledge Street into lot 575, unloads, then backs out onto Green Ledge Street, and reverses towards lot 661. The car carrier can then drive forward and exit Green Ledge Street onto Highland. When a car carrier backs into lot 575, it first drives into Green Ledge Street some distance, then reverses into lot 575. When the carrier is unloaded, it can pull directly onto Green Ledge Street, and turn onto Highland, albeit by making the widened turn maneuvers described earlier.
66. Car carriers deliver vehicles to Hometown approximately twice a week.
67. Once inventory vehicles are unloaded, they are driven to lot 660 for service or inspection, or to one of lots 564, 565, or 566 for storage. Inventory vehicles drive on Green Ledge Street to travel back and forth among the Hometown lots.
68. Hometown has provided written instructions to the Mazda transport company directing that: (1) deliveries should only arrive between 10:00 A.M. and 4:00 P.M. on weekdays and Saturday, (2) drivers must come into the dealership to get assistance unloading and backing up, (3) drivers are prohibited from entering onto Anarpets lot 661.
69. Hometown has erected a sign on lot 575 that reads: Mazda Transporters: Please do not use the school yard on left to turn around. We will supply a spotter to back you up.
70. In the past, either Stutz Motor or Hometown has parked cars on Green Ledge Street while lots 564, 565, and 566 were being cleared of snow. This process takes approximately an hour.
71. It is clear that snow, and snow removal efforts, cause some constriction of the available way, congestion, and delay on Green Ledge Street. It is not clear that the parties have a formal agreement about who is in charge of snow removal. There was some testimony that Anarpets Petro Theophilopolous would plow Green Ledge Street, but other testimony suggested he would only plow as far in from Highland as lot 661. Hometown had, at least in their first winter on the premises, engaged in some snow removal of its own, some of which involved the use of a large front end loader.
72. The evidence suggests that Green Ledge Street does not drain very well. During times of heavy rain and runoff, the storm water systems in place become overwhelmed, and the then street floods. In the winter, ice accumulates on the way. [Note 5]
73. A portion of an overhanging roof of the building on lot 563A extends into the layout of Green Ledge Street by approximately one-sixteenth of an inch, at a height of approximately eight feet off the ground.
74. There exists a utility pole within the layout of Green Ledge Street, in front of lot 661, but near the border between lots 661 and 660.
A. Ownership of the Fee in Green Ledge Street and the 12 Foot Right-of-Way
To settle the easement rights of the parties, I begin by taking up the foundational question of who owns the fee and soil of the disputed ways. G. L. c. 183, § 58, the so-called derelict fee statute, often supplies the answer about ownership of the fee in a private way. Here, however, my analysis is governed by the common law presumptions that pre-date the derelict fee statutes enactment, because title to this land was registered prior to the effective date of the derelict fee statute, January 1, 1972. See St. 1971, c. 684, § 2. [Note 6] Under the common law analysis, where a grantor of land bordering on a street or way owns the fee in the way, and conveys the land described in the deed as bordering on the way, he is presumed to have conveyed to the grantee the fee to the middle of the street or way. Suburban Land Co. v. Billerica, 314 Mass. 184 , 188 (1943). In contrast, when the deed describes the boundary as being on or by the side line of a way. . . the grantor did not intend to part with title to any portion of the way. Casella v. Sneierson, 325 Mass. 85 , 89 (1949). Where lots are conveyed by a deed reference to a plan, and where the plan referred to in the deed shows the land as bounded on a street this is equivalent to such a description in the deed, and . . . the presumption becomes operative. Suburban Land Co. at 189. The presumption, however, is not an absolute rule of law irrespective of manifest intention. . . , but is merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used. Crocker v. Cotting, 166 Mass. 183 , 185 (1896).
I conclude that the fee in Green Ledge Street is owned to the midline by the owners of the lots having frontage along the way. The land designated Green Ledge Street was in common ownership with all the land surrounding it as late as 1928. The first conveyance out by the common owner, Griswold, was the 1928 deed of lot 563, which was a conveyance by Green Ledge St. When this language is used, it is presumed to convey the described land with fee to the midline of the way, where the grantor owns land on both sides, as Griswold did here. See Suburban Land Co., supra, at 188. Additionally, the conveyance of lot 563 referenced the 11802- D plan, which depicts lot 563 bounded by Green Ledge Street. This is independently sufficient for the presumption to operate. See Suburban Land Co., supra, at 189. Accordingly, lot 563 went into separate ownership along with the fee to the midline in Green Ledge Street.
The analysis is the same for the August, 1929 conveyance of lot 564, and the September, 1929 conveyance of lots 565 and 566. In each instance, the land was described as by Green Ledge Street and also conveyed with reference to the 11802-D plan. Accordingly, each conveyance carried with it not only the lot, but also the fee to the midline in Green Ledge Street.
Griswold conveyed lot 567, on the opposite side of Green Ledge Street, in September 1930. Again, the conveyed land is described as bounded by Green Ledge Street and the deed contains a reference to the 11802-D plan. At the time, lot 567 extended the entire length of Green Ledge Street, so by this conveyance, Griswold no longer held any interest in Green Ledge Street, because the deed to lot 567 carried with it the fee to the midline in the way.
Lot 567 was conveyed intact several times before coming into ownership of the Pelletiers. Between Griswolds initial 1930 conveyance, and the 1935 acquisition of lot 567 by the Pelletiers, there was no reservation of the fee by any grantor. Thus, the Pelletiers owned the fee to the midline of Green Ledge Street extending the entire length of Green Ledge from Highland Avenue to its southeastern terminus. The Pelletiers first subdivided lot 567; the first conveyance out of former lot 567 was lot 575 in October, 1957 to Tremarco Corporation. That deed referenced the 11802-9 plan, which shows lot 575 bounded by Green Ledge Street, and also described the lot as bounded by Green Ledge Street. Accordingly, at that point, the fee of the northeasterly half of Green Ledge, for the length of lot 575, left the ownership of the Pelletiers and ended up with Tremarco Corporation.
Lots 659, 660, and 661 were conveyed by the Pelletiers in 1966- and 1967. In each instance, the lots were conveyed with reference to a plan depicting Green Ledge Street (here, the 11802-26 plan). That alone is sufficient to presume the conveyances were intended to convey the fee to the midline of the way. See Suburban Land Co., supra, at 189. Despite the fact that in each instance an easement over Green Ledge Street was (purportedly) [Note 7] granted by the Pelletiers, there is no express reservation of the fee, and nothing else to overcome the presumption.
Anarpet argues that, despite the presumption, the initial conveyances by Griswold of the lots on the southwest side of Green Ledge Street did not carry the fee. Anarpet focuses on the fact that prior to its removal, the presence of ledge on lots 563A, 564, 565, and 566 made access from those lots to Green Ledge Street impractical. The undoubted presence of the ledge, however, is not sufficient to overcome the presumed intent of Griswold. This is because it is not at all demonstrated why the presence of ledge would have caused Griswold to retain the fee in the way, certainly not sufficiently demonstrated to overcome the strong presumption that Griswold did not intend to retain the fee in Green Ledge Street. Like the aptly nicknamed derelict fee statute which built upon and codified it, the common law approach saw no good reason to leave otherwise useless strips of streets and ways in owners who had parted with the adjoining land, absent a good reason and an overt manifestation of their intent to hang onto these long, narrow parcels. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965).
I also am persuaded by the fact that the lots themselves (lots 564, 565, and 566) contained an abundance of ledge, in addition to that present in the way itself. The lots and the way faced the same developmental challenges and were similarly situated, convincing me there was no intent to separate the fee in the way from the fee in the lots. Were this a case where the lots were clear and ready for development, and only the layout of Green Ledge Street was impassible because of the ledge, then perhaps Anarpets argument that the fee in the way was intended to be retained would have more weight. But that is not the case. Instead, I infer that the buyers of the lots must have acknowledged that they required significant ledge clearing to be used anywhere close to their full potential, and that the way that would serve the lots more intensive use likewise was a large project before the entire plan could be realized. Nothing about the ledge in the way convinces me of an implicit intention that the grantor retain fee title to the strips alongside the parcels being transferred.
The fee in the 12 foot right-of-way, on the other hand, never was conveyed in the deeds out from the Pelletiers of lot 589, lot 567H, lot 652, or lot 587. Instead, the language used in each instance, either along side or by the end of or on a line by the way demonstrates an intent to exclude the fee in the way from the conveyance. See Casella v. Sneierson, supra, at 89. It is also shown that at the time, the Pelletiers still owned land in what was old lot 567, and were in the process of subdividing and conveying out lots. Thus, it made sense for them to reserve the fee in the 12 foot-right-of-way, so that they might continue to grant easements of passage appurtenant to the lots they were creating. No evidence has been offered by any party that would support a different conclusion.
B. Easements Over Green Ledge Street and the 12 Foot Right-of-Way
[W]hen a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965). As stated in Estes v. DeMello:
Similarly, where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (citations omitted). This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated. Murphy v. Mart Realty of Brockton, Inc., supra at 678. The rights also apply even if the way under consideration is obstructed, overgrown, and impassable. Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 55 (1980).
61 Mass. App. Ct. 638 , 643-44 (2004). This principle of estoppel based on conveyance of lots shown on a plan as lying along a way seems to have become a rule of law rather than a mere canon of construction. Teal v. Jagielo, 327 Mass. 156 , 158 (1951).
Despite the general rule that a holder of a certificate of title takes free from all encumbrances except those noted on the certificate[,] see G. L. c. 185, § 46, an easement by estoppel of this particular variety may exist over registered land even when absent from the certificate of title. See Lane v. Falmouth Zoning Bd. of Appeals, 65 Mass. App. Ct. 434 , 437 (2006); Anarpet Realty Corp. v. Stutz Motor Car Co., Inc., 18 LCR 527 , 533 (2010) (Misc. Case No. 07 MISC 352301) (Piper, J.). In the case of registered land, the proof of the easement must derive from the certificates of title, registered plans, or other documents within the registration system. See Jackson v. Knott, 418 Mass. 704 , 710-711 (1994); 18 LCR 533 .
In Lane, supra, the Appeals Court held that an easement by estoppel existed, despite the fact that it was not noted on the plaintiffs certificate of title. 65 Mass. App. Ct. at 437-38. The Lane court relied on the facts that the plaintiffs deed referred to the disputed way as a boundary, and that the deed referred to a Land Court subdivision plan, which depicted the disputed way. 65 Mass. App. Ct. at 438. This alone was sufficient to estop the plaintiffs from denying the existence of the way, because these facts were described on [their] certificate of title, documents, or plans in the registration system[.] Jackson v. Knott, 418 Mass. at 710-11.
Here, Green Ledge Street has been shown on Land Court plans since 1928. Anarpets earliest predecessors-in-title, William H. Ximiness and Roy B. Ximiness, took their deed of lot 567 in 1930, at a time when Green Ledge Street was depicted on the 11802-D plan, which showed not only Green Ledge Street, but also lots 563A, 564, 565, and 566 laid out along Green Ledge Street. The language in the deed to Anarpets predecessor described lot 567 as bounded. . . by Green Ledge Street[.] When lot 661 first was depicted in 1966 on the 11802-26 plan, Green Ledge Street was shown as a 40-foot way, and the deed to Anarpets immediate predecessors, Petro and Anastasia Theophilopoulos (who lent parts of their first names to that of the grantee entity), describes lot 661 as bounded by Green Ledge Street. [Note 8] The deed then goes on to state that lot 661 is not only benefitted, but also subject to a right of way over Green Ledge, and that the benefit is to use the way in common with others[.] These facts were found sufficient in Lane to satisfy the so-called Jackson v. Knott exception. See Lane, supra, at 438. The inescapable conclusion is that Anarpet and its predecessors were, through documents in the registration system, fully on notice that others would have rights in Green Ledge Street.
Thus, there is no impediment (based on the fact that the land is registered) to the determination that an easement by estoppel exists over the entire length of Green Ledge Street, benefitting each of lot 575, 661, 660, 659, 563A, 564, 565, and 566. Nothing in the later trial of this case has caused me to doubt in any respect these fundamental legal conclusions reached on summary judgment. I decide, now with the benefit of the trial evidence, that the following lots are entitled to the benefit of rights of passage, in common with others, over Green Ledge Street: lots 575, 661, 660, 659, 563A, 564, 565, and 566, notwithstanding that such an easement is not noted on the outstanding certificates of the plaintiff as benefitting each and every one of these parcels.
The easement by estoppel over Green Ledge Street arose as of the 1928 conveyance of then-lot 563 from Griswold to Anthony and Frank Frisone. At that point, Griswold, as owner of the remaining lots on the 11802-D planincluding all the land that would eventually become Anarpets two lots would have been estopped from denying the right of lot 563 (now lot 563A) to use Green Ledge Street. The same is true for the subsequent transfer of lots 564, 565, and 566. As of September 29, 1930, when Griswold first conveyed lot 567 to William H. Ximiness and Roy B. Ximiness, each of the lot owners on the southwesterly side of Green Ledge Street would have been estopped from denying lot 567's rights to use Green Ledge Street. This necessarily included the right of the owner of lot 567 to divide that lot and confer upon each newly defined smaller lot the parent lots easement over Green Ledge Street.
Anarpets remaining arguments on this point seem to assume that, like the common law predecessor to the derelict fee statute, an easement by estoppel is a presumption of intent that may be overcome by extrinsic evidence, as opposed to a rule of law. I am not convinced this is the case. If there is any such bubble of presumption at all, it would take far more than a pinprick to burst it. Indulging Anarpets view, I briefly address Anarpets arguments. Anarpet suggests that the presence of ledge restricted or made the use of Green Ledge Street by lots 563A, 564, 565, and 566 impractical. On this point, the cases are clear that an easement by estoppel may arise even when the way under consideration is obstructed, overgrown, and impassable. See Estes v. DeMello, supra, at 633-34 (quoting Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 55 (1980)). [Note 9] Moreover, if lots 564, 565, and 566 did not acquire easements over Green Ledge Street when they were created in 1928, then they would have been landlocked parcels. There is nothing in the evidence to suggest any good reason Griswold would have intended to create landlocked parcels.
Anarpet argues that the presence of express easements in the deeds to lots 659, 660, and 661, and the absence of that language in the deed to lot 575 is significant. It is true that each of those lots formerly comprised part of lot 567, and each was subdivided and conveyed by the Pelletiers, so it appears initially plausible that, as Anarpet suggests, the Pelletiers did not intend that lot 575 have an easement over Green Ledge Street, because lot 575 then had direct access to Highland Avenue. The initial problem with this position is that to focus on the intent of the Pelletiers is to make the analysis too late. The Pelletiers never owned the fee in the southwesterly half of Green Ledge Street. As discussed above, the fee in the southwesterly half of Green Ledge Street has been held by the owners of lots 563, 564, 565, and 566 since Griswold first conveyed out those lots between 1928 and 1930. By the time the Pelletiers took title to lot 567 in 1935, strictly speaking, they did not have any ability to grant easements over the full width of Green Ledge Street, so their intent is not relevant. [Note 10] To the contrary, by conveying lot 575 with reference to a plan depicting Green Ledge Street, and by describing lot 575 as bounded by Green Ledge Street, the Pelletiers instead were estopped from denying the existence of the way (as to lot 575), as is their successor-in-title, Anarpet.
In fact, rather than militating against the existence of easements by estoppel, the so-called express easements in the deeds to lot 660 and lot 661 (and, to be fair, lot 659) rely on this theory of easement by estoppel for their very existence. This is because, after the 1957 transfer of lot 575, the Pelletiers did not own any of the fee in the first 100 feet of Green Ledge Street. Their interest in that portion of the way passed by deed along with lot 575. Ironically, Anarpets rights to use Green Ledge Street through to Highland Avenue are the same as the defendants, and have always depended on an easement by estoppel the very theory Anarpet has tried to disprove over the course of this protracted litigation. Luckily for Anarpet, its own arguments do not carry the day on this point.
As to the 12 foot right-of-way, there does not appear to be much dispute as to existence of the rights of passage benefitting lots 567H, 587, 589, and 652, which each have an express easement over the 12 foot right-of-way. There is no suggestion by any of the defendants that lot 660 enjoys express rights to use the 12 foot right-of-way. There is, however, an argument made that lot 589 has retained some residual rights in Green Ledge Street, because lot 589 once was part of a larger lot (most recently, lot 588 on the 11802-14 plan) that had rights of passage over Green Ledge Street. This argument is analyzed infra in the context of overloading.
C. Overloading and Overburdening the Subject Easements
Anarpet makes two distinct arguments regarding the defendants use of Green Ledge Street and the 12 foot right-of-way. The first is a claim that the defendants are overloading [Note 11] the ways by adding land not benefitted to land that is, and using the ways to accommodate the combined parcels. Having already decided that all the Plaisted lots along Green Ledge (563A, 564, 565, 566, 575, and 660) have an appurtenant easement over Green Ledge Street, this argument now is limited to the use of the so-called U-turn to link up Green Ledge Street and the 12 foot right-of-way.
Anarpets second argument is that the defendants intensive use of the ways, including by large car carriers, is disruptive to Anarpets own use and enjoyment, and otherwise exceeds the scope of a permissible use of a private way in common with others. I will address each argument in turn. However, in light of the above determinations regarding title to the 12 foot right-of-way (to which Anarpet has no fee interest), I must address Anarpets standing to seek declaration as to easement rights, and to have injunctive relief enter in its favor.
An easement is a nonpossessory right to enter and use land in the possession of another[.] Martin v. Simmons Props., LLC, 467 Mass. 1 , 8 (2014) (quoting Patterson v. Paul, 448 Mass. 658 , 663 (2007)). As stated above, Anarpet owns the fee to the midline of the portion of Green Ledge Street that abuts lot 661. The easement over the 12 foot right-of-way differs from Green Ledge Street in an important way: the original owners of the 12 foot right-of-way retained the fee in the way. Unlike Green Ledge Street, where every lot owner along the way has a possessory interest, the fee in the 12 foot right-of-way remains in the Pelletiers (or, more likely, their successor(s)), and Anarpets title to lot 567H does not provide any possessory interest in the 12 foot right-of-way.
Anarpet lacks standing to assert there has been an overloading of the 12 foot right-of-way because Anarpet does not own any part of the fee in the 12 foot right-of-way. Instead, Anarpet is only an easement holder (as owner of its benefitted estate, to which the easement is appurtenant), and Anarpets fee is not burdened by the easement. See Southwick, supra, at 319-20 (Because the plaintiff owns the fee in a portion of [the way], he is among those entitled to assert the claim that such use would overload the easement over his servient estate[.]). See also Wingaersheek Improvement Assn, Inc. v. First City Dev. Corp., 7 LCR 147 , 150 (1999) (Misc. Case. No. 94 MISC 203561) (Kilborn, C.J.) ([Plaintiff] has no ownership interest. . . , he has only easement rights. . . . These facts (which I find) mean no standing.). [Note 12]
To support an action of trespass . . . it is necessary to prove the actual possession of the plaintiff[.] Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394 , 396 n. 3 (2010) (quoting New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707 (1943)). Likewise, an action to quiet title under G. L. c. 240, §§ 6-10 requires both possession and legal title. See Bevilacqua v. Rodriguez, 460 Mass. 762 , 767 n. 5 (2011). Accordingly, Anarpet lacks standing to bring an action of trespass, or a quiet title action, against the defendants to challenge their use of the 12 foot right-of-way, because Anarpet is not seized in fee nor otherwise in possession of any part of that land.
A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant. Murphy v. Mart Realty of Brockton, 348 Mass. at 378. After-acquired property may not be added to the dominant estate without consent of the burdened estate(s). McLaughlin v. Bd. of Selectmen of Amherst, 38 Mass. App. Ct. 162 , 169 (1995). An easement is overloaded when it is used to access land other than the land to which it is appurtenant[.] Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 319 n. 12 (2005). In this context, [t]he dominant estate for an appurtenant easement is fixed as of the time the easement is created. Trayes v. McKenzie, 16 LCR 148 , 151 (2008) (Misc. Case No. 04 MISC 303726) (Trombly, J.) (emphasis in original).
The conveyancing history of lots 589 and 660 is set forth above. Prior to the 11802-15 plan, lots 589 and 660 were part of the larger lot 588 as shown on the 11802-14 plan. Lot 588 was itself the remainder of what started as lot 567 on the 11802-D plan of 1928. It was the initial conveyance of lots according to the 11802-D plan that created the easements over Green Ledge Street. As soon as lot 567 was conveyed from Griswold to the Ximinesses in 1930, all of lot 567 enjoyed an easement over Green Ledge Street. Thus, for purposes of determining whether the Green Ledge Street easement has been overloaded by using it to access lot 660, the dominant estate is the entirety of old lot 567. Judge Tromblys analysis in Traves v. McKenzie, supra, to which the defendants refer the court in their briefs, is helpful. In that case, two parcels (lots 6 and 7) on an 1883 plan both enjoyed the benefit of an easement over the subject way. Both lots were, over the years, divided into multiple parcels and conveyed separately. On those facts, the Land Court Justice (Trombly, J.) held: The fact that lots 6 and 7 have been subdivided and are now owned by several additional owners does not [overload] the easement in any way. The area of land having the benefit of the appurtenant right has not been increased. 16 LCR at 152. Here, lot 567 was subdivided into multiple parcels, two of which are lot 660 and lot 589. Adding lot 589 to the lots currently using Green Ledge Street is not an overloading because the area of land having the benefit of the original 1930 easement has not been increased. Id. It does not overload the easement over Green Ledge Street when vehicles cross lot 660 to access lot 589, or when vehicles on lot 589 cross lot 660 to access Green Ledge Street. [Note 13]
An easement by estoppel is considered an easement arising by deed. See Lane, 65 Mass. App. Ct. at 439. Where the easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted. Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004) (quoting Parsons v. New York N.H. & H.R.R., 216 Mass. 269 , 273 (1913)). Language that a way may be used for all purposes for which streets may now or hereafter commonly be used permits more than mere ingress and egress. Brassard v. Flynn, 352 Mass. 185 , 189 (1967).
The owner of land burdened by an easement retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude. Martin v. Simmons Props., LLC, 467 Mass. 1 , 8 (2014). The party benefitted by an easement is entitled to make only the uses reasonably necessary for the purpose of the easement. Id. Whether the use by the owner of the servient estate is reasonable depends on the facts and circumstances in a given case. Id. at 14.
The obligation between those who hold separate or common easements over the same land is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders. Cannata v. Berkshire Natural Resources Council, 73 Mass. App. Ct. 789 , 797 (2009) (citing to Restatement (Third) of Property (Servitudes) § 4.12 comment b, at 626-627 (2000)). This requires a balancing of the interests of the two parties. Shapiro v. Burton, 23 Mass. App. Ct. 327 , 334 (1987). The analysis is to be governed by equitable principles, namely, what is reasonable in the exercise of their respective privileges. Id. The benefits and convenience to both easement holders must be taken into account. Id.
Here, Green Ledge Street is a forty-foot wide street serving lots that are all commercially zoned. The original language of easement occurring in the deeds from the Pelletiers in the 1960s indicate that the right to use Green Ledge Street would be in common with others and for all purposes for which public ways are or may be ordinarily used. Taken together, this suggests the scope of the easement is broad, and is certainly not limited to ingress and egress.
Ultimately, however, Green Ledge Street is a shared street, not one partys private driveway. This means that Hometown cannot use Green Ledge Street as an extension of its dealership, and Anarpet cannot expect to have sole and exclusive--or even primary--access to the shared road. It becomes my task to employ the courts equity powers and make determinations as to what is a reasonable use, and what crosses the line into interference. With some important exceptions, discussed below, much of the testimony and other evidence assembled by Anarpet convinces me only that occasionally, and for brief lengths of time, one vehicle must yield to another while traveling on Green Ledge Street. There is no evidence I find convincing of substantial delays, traffic jams, frequent collisions and unsafe encounters, or of a palpable inability on the part of Anarpet and its employees and visitors to use the way. Instead, my view of the testimony and other evidence is that some motorists have been inconvenienced when a large truck struggles to make a turn, and that snow and ice, and the efforts necessary to remove them, also can yield some further inconvenience. These are more a fact of life than an overuse of a street that would animate the court to afford some manner of injunctive relief. There is nothing per se unreasonable about periodically bringing commercial car carriers onto Green Ledge Street for purposes of operating a car dealership. Nothing in the testimony about turn radii, sight lines, or braking distances convinces me otherwise.
On the other hand, I am convinced that a distinct few and certain uses of Green Ledge Street by Hometown (and earlier by its predecessor, Stutz Motor) push across the line separating reasonable use from unreasonable interference. Using the pavement of Green Ledge Street to unload car carriers that are stopped, parked, or standing on Green Ledge Street is such a use. This is a use that should be confined to take place off the shared roadway. I conclude this strikes the proper balance between Hometowns need to receive inventory with reasonable efficiency, and Anarpets right to safe and convenient travel to and from its property.
When the long car carriers sit on the side of Green Ledge Street, even when they are pulled down it past Anarpets Lot 661, they take up a good bit of the width of the way. The cars are driven off the carriers using their ramps, which further extend the length of Green Ledge taken up by the unloading operation. And the cars then need to use even more of Green Ledge Street for maneuvering room within the ways layout to navigate to their next place where they will be parked on the Hometown lots. All of this persuades me that use of Green Ledge Street by standing full length car carriers for unloading of cars has an unreasonable propensity to produce traffic congestion and accidents. I note that even unloading the trucks on Hometown land, such as Lot 575, still makes more than a little use of Green Ledge Street. They must maneuver in one of a few ways onto the Hometown land, and maneuver again to leave and head out onto Highland. The new cars that are rolled off carriers need to move under their own power up and down Green Ledge to be parked elsewhere. But I determine that it is simpler and more prudent to have these individual cars driven cautiously on Green Ledge Street, even for a slightly longer distance, than to have the increased risk and burden of the carriers positioned on Green Ledge Street during the entire unloading sequence. The judgment that enters in this case will require that trailer trucks unload somewhere off the layout of Green Ledge Street. They only will be permitted to use Green Ledge Street for active transit and maneuvering.
Another aspect of the use by the car dealerships that will be enjoined is the practice of car carriers traveling up and down Green Ledge Street in reverse. This represents a safety concern. Balancing the interests of the common easement holders, I conclude that this is an appropriate order to protect the safety of the other users of Green Ledge Street, and one that I conclude will not overly burden Hometown. This is because the record suggests that the impetus to back out of Green Ledge Street came from the practice of car carriers unloading on Green Ledge Street, and then having no good way to reverse direction, a practice which now will be enjoined.
The use of lot 575 to unload car carriers is reasonable, and fairly accommodates the concerns fairly raised by the plaintiff about car carriers moving up and down the full length of Green Ledge Street; the injunction against trailer trucks traveling in reverse will not prohibit trucks from reversing into and out of lot 575, as that is needed to make meaningful the opportunity to use lot 575 as the primary situs of car carrier unloading. I draw a distinction between using reverse as part of a turning maneuver to get in or out of lot 575, and traveling in reverse down the full length of Green Ledge Street as a result of an inability to turn around. While drivers of the car carriers need of course to exercise full care and attention when they maneuver in and out of lot 575, particularly given its adjacency to the daycare facility on lot 661 and to the intersection with busy Highland Avenue, the evidence convinces me that with appropriate caution, this is the preferred resolution to balance the interests of the shared users of this way.
I do not mandate that the car carriers carry out their unloading only on lot 575, although this seems, under the current conditions about which I heard testimony, to be the best option. Should Hometown elect to clear enough open maneuvering space on its other lots along Green Ledge Street, including some combination of lots 564, 565, and 566, to allow carriers to pull fully off the way onto Hometowns land, and to unload the cars entirely off of Green Ledge Street, Hometown should not be restrained from doing that, and from having the carriers transit Green Ledge to the degree necessary to come and go for that purpose. What is important is that the carriers only use Green Ledge for active travel up and down it, not drive along its length in reverse, and not park or stand more than momentarily within the layout of the way, including to unload cars. I conclude that those activities ought to be prohibited in the interests of safety and reasonable sharing of the use of Green Ledge Street.
Anarpet presented evidence of several incidents where defendants or their invitees or agents have entered onto Anarpets lot 661 without permission. I find that this has happened on occasion, more than rarely, although not with any persistent, repetitive, or invasive frequency. Some drivers have used the Young World parking lot to turn around, to park for a quick run into nearby dealership buildings, or out of misdirection. Nothing in this decision establishes that any of the defendants have the right to enter upon any portion of Anarpets property which is not impressed with the easement, meaning on the fee of Lot 661 outside the limits of Green Ledge Street. The judgment I will direct the Recorder to enter will reiterate that by way of declaration, and by permanent injunction. Hometown cannot be responsible for the conduct of every visitor using Green Ledge Street to get to and from Hometowns facilities along it, but where Hometown employees and regular delivery personnel and tradespeople make use of the Young World parking lot for parking, passage, turning around, or any other purpose on any kind of recurrent or regular basis (something I conclude has not occurred) that would signal a failure on Hometowns part to appreciate its responsibilities as a co-user of the shared way.
I am not unmindful in the least of the potential for dangerous interaction between a child care facility and a bustling, spread-out car dealership sharing the use of a forty-foot wide private way. The mix of activities might not be the ideal one one would design if planning the land uses in the first instance. But these uses both have existed in close proximity, sharing the way, for some time, and the court can not and will not direct the discontinuance of either business on the facts the court has found to exist. They do not call for such a drastic result; rather, they show that, with appropriate safeguards, cautious behavior, and neighborly accommodation, both the dealership and the daycare facility can operate and make safe and effective common use of Green Ledge Street.
More than a little circumspection is indicated on the part of both plaintiffs tenant and Hometown. Young World, given the very young age of the children who participate in its programs, needs to be vigilant about the childrens whereabouts, and about the movement and location of the vehicles of parents and others while picking up and dropping off. The way the daycare center runs, it wisely minimizes the chances that children will be outside and in danger from vehicles. The play areas, even the open air ones, are behind secure barriers and safely accessed without children having to cross any areas where vehicles might be in motion. But constant watchfulness still is necessary.
Hometown needs to stay closely on top of the many vehicles using Green Ledge Street passing to and from the lots used by the dealership and owned by Plaisted. While the movement of long car carriers up and down the length of Green Ledge Street poses the greatest likelihood of dangerous interaction with Young World children and adults, so much so that the court will limit that movement to the degree outlined in this decision, there will nevertheless be other movements of those carriers, and many more by a wide variety of other vehicles, which pose some risk of accident if adequate care is neglected by their drivers. They need to be cautious when on Green Ledge Street, and Hometown should exercise care as well to alert those who use Green Ledge Street regularly to reach the dealership lots that children are in the immediate vicinity. When Hometown observes recurrent behavior by drivers that is plainly unsafe, it should consider what steps it might take to correct or limit that behavior. Without prescribing any particular action Hometown must take to maximize safe use of the shared way, it ought to weigh, among other options, posting signs, using spotters, instructing and warning employees and regular business visitors, and providing as much space as possible off of the way for parking vehicles. Several of these things Hometown already does.
As Martin v. Simmons Properties makes clear, there is no absolute right in all cases, even as to registered land, to have the entire width of an easement kept clear. 467 Mass. at 14-15. Instead, at least in the absence of some express covenant, the servient estate may make or maintain encroachments into the easement area as long as there is no material interference with the dominant estates use of the burdened land for the purposes authorized by the easement. See id. at 17 (affirming judgment of this court that encroachments do not interfere with easement rights of passage over registered land and so need not be removed). Here, the portion of the showroom building on lot 563A that overhangs (by less than an inch) into the layout of Green Ledge Street, and which protrudes to that slight degree well overhead, and entirely within the fee ownership of Plaisted Properties, does not have any effect on Anarpets use of the easement. There is no evidence of any impairment of Anarpets rights to pass over Green Ledge Street which is occasioned by this most minor of projections, and the view which I took of the area makes me confident that there could not be any such case made by Anarpet. The removal of this projection will not be ordered.
As to the utility pole and overhead wires, I find based on all the evidence that the utility pole on that portion of Green Ledge Street owned by the owner of lot 661 exists by virtue of the 1960 utilities easement. Almost all of the former lot 567J is now within the layout of lot 661. The 1960 utilities easement is duly registered with the District, and referenced by document number on Anarpets certificate of title. It appears that the pole is not in precisely the same position as it was depicted on the plan recorded with the 1960 utilities easement; however, the plan is titled Proposed Two Party Joint Owned Pole Location and never claims to be an as-built survey. Anarpet put on no evidence to suggest that the existing poles and overhead wires were not the ones authorized by the registered easement. Anarpets sole argument was that the utility pole existed without any right, and was an encroachment on Anarpets fee by the defendants. That contention was answered squarely by the registered easement, setting up the record title right for the line and poles to exist on Anarpet land. Anarpet has not come forward with any proof to show that the poles and line in place on the locus are anywhere other than where they are authorized to be by a proper instrument noted on the certificate of title for the servient land. Absent proof of that, Anarpets claim, effectively one of trespass, cannot succeed. In light of the registered utility easement, Anarpet has not carried its burden on that issue.
[Note 1] Green Ledge Street runs from Highland Avenue in a northwest to southeast direction, although, to simply things, I sometimes refer to the Highland Avenue side as the west end of Green Ledge Street, and the Almy Trust side as the east. I refer to the lot 567 side of the road as either north or more precisely, northeast of the Green Ledge Street. Lots 563A, 564, 564, and 566 are to the south or southwest of Green Ledge Street.
[Note 2] Document numbers 27841 and 27842, filed with the District on February 2, 1933, are a deed of lot 567 from Michael R. Connolly to Albert G. and Dorothy M. Vernott (Doc. No. 27841), and a grant of a mortgage of lot 567 to Michael Connolly from Albert G. and Dorothy M. Vernott (Doc. No. 27842). It is not clear from the evidence in this case how title came from Annie E. Brown to Michael R. Connolly between September, 1932 and February, 1933; nor how title returned to Michael R. Connolly prior to his subsequent conveyance to the Pelletiers in June of 1935 (although foreclosure seems a reasonable inference). I have declined to take notice in the registration system, and outside the evidence counsel have provided in the pending litigation, to address this question, which is not essential for my disposition of the case.
[Note 3] Following the death of James George, lot 567H was conveyed to Charles Baletsa and William Baletsa, and eventually to Anarpet in 1978.
[Note 4] The use of Highland Avenue, a public way, by any of the parties is beyond the scope of this litigation. Nonetheless, Anarpet devotes a not insignificant amount of space in its posttrial brief, and requests for findings of fact and rulings of law to the issue of car carriers on Highland Avenue. I specifically decline to make factual findings on this point because it is beyond the scope of this litigation, and because counsel for Hometown has conceded effectively that any parking of car carriers on that public road, including for the purpose of delivering cars, would be improper and without right, and will not take place under Hometowns ownership of the dealership.
[Note 5] The allegation that the defendants direct surface water from their property onto either Green Ledge Street, or onto Anarpets lot 661, is not relevant to the case the court has to decide. These claims sound in tort (nuisance or trespass), and the court has repeatedly ruled and made counsel understand that the Land Court lacks subject matter jurisdiction over such tort claims. Any testimony received on this issue was taken by the court only to the extent relevant to questions of the scope and extent of the parties passage easement rights, where the natural conditions, including drainage, might have some bearing on the courts consideration of how those rights might reasonably be exercised.
[Note 6] While the new statute, codifying long-standing common law and conveyancing practice, was made to apply to the construction of instruments executed before as well as on and after the effective date, a special provision dealt with land having previously registered titles, respecting the conventions by which the rights of all had been settled by this court over many years in in rem registration cases, carving out an exception to the statutes otherwise retroactive reach: ...except that as to ... prior executed instruments this act shall not apply to land registered and confirmed under the provisions of chapter one hundred and eighty-five before said effective date .... In many ways, there is not a great deal of practical difference between the result which would obtain analyzing questions about fee ownership of ways under the derelict fee statute, on the one hand, and the prior common law, on the other. But the distinction does help illuminate this courts treatment, adherently aligned with the background common law, of the distinction between lots conveyed by the way, and those deeded out by the line of the way.
[Note 7] See discussion of these express easements, infra.
[Note 8] The fact that the 11802-26 plan shows Green Ledge Street but does not show the several lots abutting Green Ledge Street to the southwest (lots 563A, 564, 565, and 566) does not relieve Anarpet of its obligation to investigate whether other parcels had the right to use Green Ledge Street.
[Note 9] Ample time at trial was devoted to hearing testimony on the presence of ledge and the historic use by Plaisted of both Green Ledge Street, and his lots 563A, 564, 565, and 566. Ultimately, these facts are largely immaterial in light of the conclusions that Griswold did not retain any fee in Green Ledge Street after 1930, and in light of the abundant case law clearly instructing that easements by estoppel arise even as to so-called paper streets or ways that are in fact unwrought and impassible. See generally Estes v. DeMello, supra. And of course, mere nonuse of an easement, by itself, is insufficient to constitute abandonment of the easement. Desotell v. Szczygiel, 338 Mass. 153 , 158-159 (1958).
[Note 10] As developers, the Pelletiers certainly could have limited the ability of subsequent lots that they created to use Green Ledge Street. They did not. Instead, the rights of the subsequent lotslots 659, 660, and 660to use Green Ledge Street was memorialized in each instance.
[Note 11] In Southwick v. Planning Board of Plymouth, 65 Mass. App. Ct. 315 , 319 n. 12 (2005), the panel provided these dicta: The term overburden is occasionally used to describe any use that exceeds the scope of rights held under an easement. . . . In Murphy v. Mart Realty of Brockton, Inc., supra at 679, the court said that the use of an easement to serve land other than the dominant estate to which the easement is appurtenant overloaded the easement. Some commentators have used overburden to describe only use of an easement for a purpose different from that intended in the creation of the easement, overload to describe the situation . . . where an appurtenant easement is used to serve land other than the land to which it is appurtenant, and nuisance to refer to overly frequent or intensive use. (Internal citations omitted). Here, I use the general term overburden (rather than the term nuisance) to describe Anarpets complaints that the defendants are using the easement in an overly intense and disruptive fashion, and the term overload as it is used in Southwick, referring to an instance where an easements use is expanded to serve more land than that to which the easement is appurtenant.
[Note 12] Unlike the Wingaersheek case, Anarpet has pleaded that the use of the 12 foot right-of- way by Hometown and the Stutz defendants are interfering with its own use of the way. This claim is addressed infra in the section on overburdening.
[Note 13] Lot 660s rights in the 12 foot right-of-way are differently situated because lot 660 was never part of the dominant estate as to the 12 foot right-of-way.