VIRGIL TABICAS and ROSEMARY A. CATRINA-TABICAS v. WALTER KORZENIOWSKI and GRANITELEDGE REALTY TRUST.

Rosemary Catrina-Tabicas and Virgil Tabicas, Walter Korzeniowski, and Graniteledge Realty Trust each own abutting lots in a subdivision in Westport. Their lots are the product of a complex series of subdivisions and grants of easements, resulting in a dispute among the parties over whether the defendants Korzeniowski and Graniteledge have an easement to cross a portion of the lot of the plaintiffs for access and utilities. As discussed below, when untangled, the title history discloses that neither defendant Korzeniowski nor defendant Graniteledge has any right to use the plaintiffs’ lot for access, but Korzeniowski does have a right to utility access. The parties’ cross-motions for summary judgment are therefore allowed in part and denied in part, and the parties shall confer and submit a proposed form of judgment consistent with this order.

Procedural Background

On May 9, 2012, the plaintiffs Rosemary Catrina-Tabicas and Virgil Tabicas filed their original complaint against defendants Walter Korzeniowski and Graniteledge Realty Trust. Defendant Walter Korzeniowski filed his answer to the plaintiff’s complaint on July 17, 2012. A case management conference was held on July 17, 2012. Defendant Graniteledge Realty Trust filed its answer to the plaintiff’s complaint on August 8, 2012.

Plaintiffs Rosemary Catrina-Tabicas and Virgil Tabicas filed a Motion for Summary Judgment on November 8, 2013. Defendant Walter Korzeniowski filed Opposition to Plaintiff’s Motion for Summary Judgment and a Cross-Motion for Summary Judgment on December 13, 2013. Affidavits of Jay M. Rapoza and Walter Korzeniowski were filed on December 13, 2013. The plaintiffs filed a response to defendant Walter Korzeniowski’s Opposition to Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment on January 7, 2014.

On January 10, 2014, the court heard and took under advisement the plaintiff’s Motion for Summary Judgment and defendant’s Cross-Motion for Summary Judgment. Defendant Graniteledge Realty did not oppose either motion. This decision follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. V. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where, as here, the parties have presented cross-motions relying solely on undisputed recorded instruments, the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law. World Species List—Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596 (1994); see Asian Am. Civic Ass’n v. Chinese Consolidated Benevolent Ass’n of New Eng., Inc., 43 Mass. App. Ct. 145 , 148 (1997).

Factual Background

Based on the record, the court finds the following facts are undisputed:

Marsh Realty, Inc. (“Marsh Realty”) acquired property (“Westport Property”) in Westport, Massachusetts by a deed dated January 10, 1992, and recorded at the Bristol County (Southern District) Registry of Deeds (the “Registry”) at Book 2752, Page 240. Marsh Realty had a plan prepared entitled “Plan of Land in Westport, MA. drawn for Marsh Realty, Inc.” dated June 17, 1996 and revised October 22, 1997, and recorded at the Registry at Plan Book 140, Page 26 (the “1997 Plan”). The 1997 Plan is attached. Endorsed as approval not required under the Subdivision Control Law, the 1997 Plan subdivided the Westport Property into six lots, and showed a “proposed access easement” running from American Legion Highway across lots 1, 2, 3, and 6. Jay Rapoza acquired Lot 1 on the 1997 Plan from Marsh Realty by a deed dated June 9, 1998 and recorded at the Registry at Book 4131, Page 194.

Marsh Realty had a second plan prepared entitled “Easement Plan of Land in Westport, MA. drawn for Marsh Realty, Inc.” dated July 2, 1998, and recorded at the Registry at Plan Book 140, Page 47 (the “1998 Easement Plan”). The 1998 Easement Plan is attached. The 1998 Easement Plan shows a slight modification of the proposed access easement from American Legion Highway depicted on the 1997 Plan, crossing Lots 1 and 2 along a different route and running over Lots 3 and 6 in the same location as on the 1997 Plan. This proposed access easement lies entirely within the boundaries of Lots 1, 2, 3, and 6. Within Lot 3, the proposed access easement abuts Lot 2; within Lot 6, it abuts Lots 3, 4, and 5. By an instrument dated October 8, 1998, and recorded at the Registry at Book 4227, Page 292, Marsh Realty granted a utility easement over Lot 2 within the boundaries of the proposed access easement on the 1997 Plan. Jay Rapoza acquired Lot 2 on the 1997 Plan from Marsh Realty by a deed dated December 22, 1998 and recorded at the Registry at Book 4291, Page 170.

By an instrument dated February 7, 2000 recorded at the Registry at Book 4617, Page 272, Jay Rapoza granted to Marsh Realty an access easement, as shown on the 1998 Easement Plan, over Lots 1 and 2 on the 1997 Plan for the benefit of Lots 3, 4, 5, and 6 on the 1997 Plan (the “2000 Access Easement”). Marsh Realty conveyed Lots 3, 4, and 5 on the 1997 Plan to Marianne Tavares by a deed dated June 29, 2000 and recorded at the Registry at Book 4714, Page 174 (the “Tavares Deed”). Marianne Tavares then granted a utility easement over Lot 3 by an instrument dated February 27, 2001 and recorded at the Registry at Book 4917, Page 54 (“Utility Easement”). Marsh Realty conveyed Lot 6 on the 1997 Plan to Eric and Cynthia A. Belinkoff by a deed dated November 28, 2000 and recorded at the Registry at Book 4833, Page 37 (the “Belinkoff Deed”). The Belinkoff Deed provides that Lot 6 is conveyed “TOGETHER WITH” the 2000 Access Easement.

On or about July 2, 2001, Marsh Realty and Rapoza had a plan prepared entitled Revised Access Easement Plan of Land located in Westport, MA. prepared for Marsh Realty, Inc. & Jay M. Rapoza, dated January 4, 2001 and recorded at the Registry at Plan Book 147, Page 90 on July 2, 2001 (the “2001 Easement Plan”). The 2001 Easement Plan is attached. The 2001 Easement Plan shows reconfigured lot lines for Lots 1 and 2, and a changed location of the 2000 Access Easement across Lots 1 and 2. The 2001 Easement Plan recites: “The purpose of this plan is to create revised access easements over Lots 2 & 6 to reflect the actual road location. This access road services lots shown on the [1997 Plan].” As the owner of Lots 1 and 2, Jay Rapoza granted an Easement dated July 2, 2001 over Lots 1 and 2 as shown on the 2001 Easement Plan for the benefit of Lots 3, 4, 5, and 6 for the purposes of ingress and egress to and from American Legion Highway (the “2001 Access Easement”). The 2001 Access Easement is recorded at the Registry at Book 5060, Page 279.

By a deed dated the same day, July 2, 2001, and recorded at the Registry at Book 5060, Page 281 (the “Korzeniowski Deed”), Rapoza conveyed Lot 2 as shown on the 2001 Easement Plan to Walter Korzeniowski (the “Korzeniowski Property”). The Korzeniowski Deed recites that Lot 2 is conveyed

Together with an easement as shown on Lot 1 depicted on [the 2001 Easement Plan] . . . . Said easement is for the purpose of access and egress on foot and with vehicles to and from the premises conveyed across said Lot 1 to American Legion Highway (Route 177, including the right to construct and maintain a roadway in the easement area and for all purposes for which public ways are used in the Town of Westport, MA. including, but not limited to, the right to install, repair, replace and maintain all utilities, including CATV, over, under and across said easement. Said easement shall be used in common with all those lawfully entitled thereto.

(the “Lot 1 Easement”). The deed also recites that Lot 2 is “conveyed subject to easements this day granted by the grantor to Eric Belinkoff and Cynthia Ann Belinkoff, Marianne Tavares, Rafael Rolando Yeje and Esther Cambedo, Trustee of E & S Family Trust, u/t/t dated August 2, 1999, which easements have been recorded in said Registry immediately prior hereto” (i.e., the 2001 Access Easement). After he acquired the property, Korzeniowski paved the portion of the 2001 Access Easement that runs over Lot 3.

Marianne Tavares conveyed Lot 3 on the 1997 Plan to James Tavares by a deed dated October 29, 2001 and recorded at the Registry at Book 5217, Page 119. The deed provides that Lot 3 is conveyed together with the 2000 Access Easement and is subject to the Utility Easement.

On April 20, 2004, an Easement and Discontinuance Agreement dated April 16, 2004, and a plan entitled “Access & Utility Easement Plan in Westport, MA Lots 10C, 10D & 12 American Legion Highway prepared for Steve Cambedo” dated March 21, 2002 (the “2004 Easement Plan”) were each recorded at the Registry, the Easement and Discontinuance Agreement at Book 6899, Page 238, and the 2004 Easement Plan at Plan Book 153, Page 62. The 2004 Easement Plan is attached. Lots 12C, 10C, 10D, and 12 on the 2004 Easement Plan are the same as Lots 3, 4, 5, and 6, respectively, on the 1997 Plan. In the Easement and Discontinuance Agreement, the owners of Lots 3, 4, 5, and 6 agreed to discontinue the portion of the 2000 Access Easement running over Lots 3 and 6, as well as any easement over those lots shown on the 1997 Plan, the 1998 Easement Plan, or the 2001 Easement Plan, except that Lot 6 continued to hold a utility easement over the access easement area on Lot 3. The Easement and Discontinuance Agreement then granted easements for the benefit of Lots 4, 5, and 6 for access and utilities over Lots 3, 4, and 5, as shown on the 2004 Easement Plan.

James Tavares and Sandra Nunes Dos Santos conveyed Lot 3 to Sandra Nunes Dos Santos (“Dos Santos”) by a deed dated October 18, 2004 and recorded at the Registry at Book 7256, Page 275. The deed provides that Lot 3 is conveyed together with the 2000 Access Easement. Dos Santos had a subdivision plan prepared entitled “Definitive Subdivision of Wildberry Way in Westport, MA prepared for Sandra DosSantos,” dated January 6, 2006 and revised to August 14, 2006 (“2006 Subdivision Plan”). The 2006 Subdivision Plan is attached. After approval by the Westport Planning Board, the Westport Town Clerk certified the 2006 Subdivision Plan as final on August 23, 2006. The 2006 Subdivision Plan was recorded at the Registry on June 11, 2007 at Plan Book 161, Page 24. The 2006 Subdivision Plan subdivided Lots 3 and 6 of the 2001 Easement Plan, renumbering them as Lots 1 through 10 and Lot 12, and creating a subdivision road through the former Lot 3. Lot 1 on the 2001 Easement Plan was renumbered as Lot 13, and Lot 2, the Korzeniowski Property, was renumbered as Lot 11. On or about June 20, 2006, Sandra and Arlindo Dos Santos, owners of the former Lot 3, and Eric and Cynthia Belinkoff, owners of the former Lot 6, entered into a Land Swap Agreement (“Land Swap”). The Land Swap provided that the Dos Santoses would acquire Lot 9 and the Belinkoffs would acquire Lot 8 as shown on the 2006 Subdivision Plan, and that access to Lot 9 would be by the 2000 Access Easement, not by its frontage on the subdivision road. The Land Swap was recorded at the Registry on September 8, 2006 at Book 8307, Page 159, after the notice of approval but preceding the endorsement and recording of the 2006 Subdivision Plan to which it references.

By a deed dated May 16, 2007, and recorded at the Registry at Book 8678, Page 205 on June 11, 2007 (the same day the 2006 Subdivision Plan was recorded), Dos Santos granted all her right, title, and interest in Lot 9 on the 2006 Subdivision Plan to the Belinkoffs. The deed provides that Lot 9 is conveyed subject to and together with the 2000 Access Easement. By a deed dated May 16, 2007, and recorded at the Registry on June 11, 2007 at Book 8678, Page 204, the Belinkoffs granted all their right, title and interest in Lot 10 on the 2006 Subdivision Plan to Dos Santos. This deed also provides that Lot 10 is conveyed subject to and together with the 2000 Access Easement.

Walter Korzeniowski acquired Lots 1, 2, 3, and 4 on the 2006 Subdivision Plan from Dos Santos by a deed dated October 31, 2007 and recorded at the Registry at Book 9808, Page 225. Arlindo Dos Santos acquired Lot 5 on the 2006 Subdivision Plan from Sandra Dos Santos by a deed dated August 25, 2010 and recorded at the Registry at Book 9808, Page 226, and Arlindo Dos Santos conveyed Lot 5 to Walter Korzeniowski by a deed dated August 30, 2010 and recorded at the Registry at Book 9808, Page 227.

William Norton acquired Lot 10 of the 2006 Subdivision Plan from Dos Santos by a deed dated June 7, 2007 and recorded at the Registry at Book 8678, Page 345. After foreclosure, BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP (“BAC”) took title to Lot 10. BAC conveyed Lot 10 to Virgil Tabicas and Rosemary Catrina-Tabicas by a deed dated November 25, 2009, and recorded at the Registry at Book 9599, Page 308 (the “Tabicas Property”). The property was “conveyed subject to and with the benefit of easements and restrictions of record, if any, insofar as the same may now be in force and applicable.”

By a deed dated November 30, 2010, and recorded at the Registry at Book 10062, Page 4, Graniteledge Realty Trust acquired Lot 9 of the 2006 Subdivision Plan from Dos Santos (the “Graniteledge Property”).

Discussion

At issue is the portion of the 2001 Access Easement, as shown on the 2001 Easement Plan and the 2004 Easement Plan, which lies within the bounds of the Tabicas Property (the “Disputed Easement Area”). The Disputed Easement Area is shown as the cross-hatched area on the attached copies of the 2001 Easement Plan and the 2004 Easement Plan. The plaintiffs seek a declaration that neither Korzeniowski nor Graniteledge has any right to use the Disputed Easement Area for access and that Korzeniowski does not have the right to maintain his utility meter in the Disputed Easement Area. Korzeniowski has cross-moved for a declaration that he has the right to use the Disputed Easement Area either by record easement, easement by estoppel, or implied easement. Graniteledge has not opposed the plaintiffs’ motion. The rights of the Korzeniowski Property and the Graniteledge Property are discussed in turn.

The Korzeniowski Property

Record easement. Korzeniowski does not hold a record easement appurtenant to the Korzeniowski Property to use the Disputed Easement Area for access. The 2000 Access Easement did not benefit any part of Lots 1 and 2 on the 1997 Plan (including what became the Korzeniowski Property); rather, it burdened those lots for the benefits of Lots 3, 4, 5, and 6 on the 1997 Plan. The 2001 Easement Plan reconfigured Lots 1 and 2, creating Lot 2 in its current configuration as the Korzeniowski Property, and relocated the access easement across both lots. The 2001 Access Easement was created to account for this relocated easement area over the Korzeniowski Property, and, like the 2000 Access Easement, burdened Lot 1 and the Korzeniowski Property with the access easement shown on the plan for the benefit of Lots 3 through 6.

At the time of the creation of the 2000 and 2001 Access Easements, Rapoza owned both Lots 1 and 2 as shown on the 1997 Plan and the 2001 Easement Plan. As owner of both lots, he could not create an easement across one for the benefit of the other; any such easement would merge with his title. Goldstein v. Beal, 317 Mass. 750 , 754 (1945); Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684 (2012). When Rapoza conveyed the Korzeniowski Property, Lot 2, to Korzeniowski in 2001, he granted an easement for the benefit of that property to cross Lot 1 on the path shown on the 2001 Easement Plan and to use that path for utilities. Rapoza granted no easement across the Disputed Easement Area or any other part of Lot 3, for the benefit of the Korzeniowski Property because he had no right or power to do so. Marsh Realty had previously conveyed Lot 3 to Marianne Tavares in the 2000 Tavares Deed.

The 2006 Subdivision Plan incorporates the path shown on the 2001 Easement Plan into the subdivision way shown on that plan. The subdivision way also abuts the Korzeniowski Property. Based on the 2001 Access Easement and the 2006 Subdivision Plan, the Korzeniowski Property has the right to use the subdivision road to access American Legion Highway.

The Korzeniowski Property does have the benefit of a record easement for utility access, namely, the 2001 Utility Easement. The 2001 Utility Easement burdens the Tabicas Property and permits utility access along the Disputed Easement Area.

In other words, the only record easement benefiting the Korzeniowski Property is the right to cross Lot 1 on the path shown on the 2001 Easement Plan to reach American Legion Highway and to use that same path to bring in utilities, and to use the Disputed Easement Area for utilities. The Korzeniowski Property is also entitled to use the subdivision road shown on the 2006 Subdivision Plan. There is no record easement benefiting the Korzeniowski Property to use the Disputed Easement Area for passage.

Easement by Estoppel. In the absence of a record easement, Korzeniowski argues that he has the right to use the Disputed Easement Area based on the principles of easement by estoppel. Massachusetts recognizes two forms of easement by estoppel. Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-644 (2004); Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481- 482 (1989). In the first form, an easement by estoppel is created when land bounded by a street or land bounded on or by the side line of a street is conveyed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949). In this instance, the grantor is “estopped to deny the existence of such street or way . . . as it is then laid out or clearly indicated and prescribed.” Id. at 89; see Estes, 61 Mass. App. Ct. at 643. The second form of easement by estoppel arises when land is conveyed according to a recorded plan. Goldstein, 317 Mass. at 755. Under this category, when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor is “estopped to deny the existence of the street for the entire distance as shown in the plan.” Id. Based on these principles, Korzeniowski, as discussed, has the right to use the subdivision road shown on the 2006 Subdivision Plan.

There are two problems, however, with Korzeniowski’s claim of easement by estoppel to use the Disputed Easement Area. First, Korzeniowski derives his title from the common grantor of his property and the Tabicas Property. In easement by estoppel, “the rights of grantees or their successors in title against their grantors and their successors in title” are at issue. Patel, 27 Mass. App. Ct. at 482. Massachusetts has not expanded the doctrine of easement by estoppel to estop a grantee from denying the existence of an easement. Id.; Waldron v. Tofino Assocs., Inc., 20 LCR 480 , 485 (2012). Accordingly, a grantor cannot claim an easement by estoppel. Id.

More important, Korzeniowski cannot claim an easement by estoppel because the Disputed Easement Area is not a street or way. In cases finding an easement by estoppel, the street or way that is held to be subject to the easement by estoppel nearly always is shown on a plan or exists on the ground as a separate parcel from the parcels that abut it. See, e.g., Murphy, 348 Mass. at 676-678 (easement by estoppel over proposed street shown on plan); Casella, 325 Mass. at 88-90 (way referred to in deed and extension of existing way); Estes, 61 Mass. App. Ct. at 639-640, 643-645 (way shown on plan); Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 49-50 (1980) (way shown on registration plan); see also Ralph v. Clifford, 224 Mass. 58 , 60- 62 (1916) (no easement by estoppel over street shown on plan where there is only a path on the ground). In this case, the 2000 Access Easement and the 2001 Access Easement, as depicted on the 1997 Plan, the 1998 Easement Plan, and the 2001 Easement Plan, are not separate ways. Rather, the areas on those plans shown as “proposed access easement” all lie within the bounds of Lots 1, 2, 3, or 6 on those plans. The deeds initially conveying Lots 2, 3, and 6, namely the Korzeniowski, Tavares, and Belinkoff Deeds, do not make reference to the proposed access easement on these plans as a way or street; indeed, they do not incorporate the path of the easement at all. Rather, they identify the conveyed parcels by their respective lot numbers. See Emery v. Crowley, 371 Mass. 489 , 493-495 (1976) (parcel not designated as way, owned by grantor, and subject to express easement is not a way; therefore, not subject to easement by estoppel).

In short, the path of the 2000 Access Easement and the 2001 Access Easement, as depicted on the 1997 Plan, the 1998 Easement Plan, and the 2001 Easement Plan, is not a way or street which can be the subject of an easement by estoppel. Rather, it is an easement over these parcels for a particular use and for the benefit of other particular parcels. Korzeniowski has no claim to easement by estoppel.

Implied Easement. Korzeniowski also argues that he holds an implied easement to use the Disputed Easement Area. In contrast to an easement by estoppel, “an easement by implication is a term more commonly applied to an implied grant derived from an established pattern of prior use rather than from the necessity to access a newly landlocked parcel.” Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004). An implied easement arises when no easement appears in the record of a conveyance, but “there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created.” Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 102 , 104 (1933). Thus, an implied easement “must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.” Reagan v. Brissey, 446 Mass. 452 , 458 (2006), quoting Labounty v. Vickers, 352 Mass. 337 , 344 (1967); Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 657 (2005). A “single circumstance may be so compelling as to require the finding of an intent to create an easement.” Mt. Holyoke, 284 Mass. at 104. Reasonable necessity for the implied easement is also evidence that the grantor intended to create an easement. Id. at 105; Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 630 (1990). The party claiming the easement bears the burden and must prove the grantor intended to create an easement at the time of conveyance. Mt. Holyoke, 284 Mass. at 105; Boudreau, 29 Mass. App. Ct. at 629. Because a deed is construed against the grantor, an implied easement is more readily found when claimed by a grantee. Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951); Boudreau, 29 Mass. App. Ct. at 629 (“The burden is heavier for the grantor asserting a right to an easement by implied reservation for his benefit than for a grantee asserting such an easement by implied grant.”)

Korzeniowski cannot establish an implied easement because the express record easements benefiting the Korzeniowski Property are perfectly clear in their scope and intent. The 2001 Access Easement provides for an easement across Lot 1 to American Legion Highway for access to that public way and for utilities. It provides for no other easements, and no other easements are necessary for Korzeniowski’s use of his property. The 2001 Utility Easement provides for utility access. Neither the Korzeniowski Deed, the 2001 Access Easement, the Tavares Deed, nor the Belinkoff Deed conveyed any easement by implication in the Disputed Easement Area “because none was necessary to the enjoyment of the” Korzeniowski Property. Emery, 371 Mass. at 495.

The Graniteledge Property

Graniteledge does not have an easement over the Disputed Easement Area. The Graniteledge Property was originally part of Lot 6 as shown on the 1997 Plan. The 2000 Access Easement granted Lots 3 through 6 on the 1997 Plan an easement over Lots 1 and 2 on that plan for access to American Legion Highway, but was silent as to an easement over any part of Lot 3. Any such easement over Lot 3 for the benefit of Lot 6 would have merged, as Marsh Realty owned Lots 3 through 6 at the time of the 2000 Access Easement. In June 2000, Marsh Realty conveyed Lots 3 through 5 to Tavares in the Tavares Deed. That deed did not reserve an easement over the Disputed Easement Area for the benefit of Lot 6. When Lot 6 was conveyed to the Belinkoffs in the Belinkoff Deed in November 2000, that deed provided that Lot 6 was conveyed together with the 2000 Access Easement. In February 2001, Tavares granted the 2001 Utility Easement over Lot 3. Thus, by February 2001, Lot 6 had the benefit of the 2001 Utility Easement. As a matter of record title, however, it did not have the benefit of an easement over the Disputed Easement Area, as the 2000 Access Easement did not burden the Disputed Easement Area.

The question whether the parties intended the 2000 Access Easement to burden the Disputed Easement Area for the benefit of Lot 6 was rendered moot by the April 2004 Easement and Discontinuance Agreement. In that agreement, the Belinkoffs released all rights to an easement over the Disputed Easement Area for the benefit of Lot 6 (Lot 12 on the 2004 Easement Plan) and, indeed, all of their rights in the 2000 Access Easement, except that they retained the rights under all utility easements. The Easement and Discontinuance Agreement then granted new easements for access and utilities across Lot 3 (Lot 12C on the 2004 Easement Plan) along the access area shown on the 2004 Easement Plan for the benefit of the other lots. That access area is roughly in the same location as the subdivision way shown on the 2006 Subdivision Plan. As a result of the Easement and Discontinuance Agreement, Lot 6 as shown on the 1997 Plan no longer had any access easement under the 2000 Access Easement, including any easement over the Disputed Easement Area. Rather, its access to American Legion Highway was by the route shown on the 2004 Easement Plan.

The 2006 Subdivision Plan created Lot 9, the Graniteledge Property, out of portions of the former Lots 6 and 3 on the 1997 Plan. The way created by the 2006 Subdivision Plan lies more or less along the path of the easement along the access area shown on the 2004 Easement Plan and the access across Lot 1 on the 2001 Easement Plan. The Graniteledge Property has frontage on the subdivision way by a thin strip that connects to the larger part of the property. As a result of the 2006 Subdivision Plan’s reconfiguration of lots, Dos Santos, the owner of the former Lot 3, and the Belinkoffs, the owners of the former Lot 6, each owned portions of the new Lots 8 and 9. The Land Swap was intended to convey Lot 9 to the Belinkoffs and Lot 8 to Dos Santos, and also to grant Lot 9 an easement over the Disputed Easement Area and restrict Lot 9 from using its access to the subdivision way. The Land Swap did not effect the transfer it describes, however, because it was created and recorded before the 2006 Subdivision Plan was endorsed by the Planning Board and recorded. Dos Santos and the Belinkoffs appear to have realized this, because at the same time the 2006 Subdivision Plan was recorded they recorded mutual deeds conveying to each other their respective interests in Lots 9 and 10 on the 2006 Subdivision Plan. Those deeds purport to convey the 2000 Access Easement as well, but do not contain any restriction on the use of Lot 9’s access to the subdivision way.

As discussed, the 2000 Access Easement does not grant any right to use the Disputed Easement Area. The Land Swap was not effective to grant any rights. Lot 9, the Graniteledge Property, therefore does not have any right to use the Disputed Easement Area. It does have the right to use its frontage on the subdivision way to access that way and then travel on the way to American Legion Highway.

Conclusion

For the foregoing reasons, the Motion for Summary Judgment and the Cross-Motion for Summary Judgment are each ALLOWED IN PART AND DENIED IN PART as follows. It is ordered and declared that the defendant Korzeniowski has no right, title or interest to enter or use the Tabicas Property for access. It is further ordered and declared that the defendant Korzeniowski has the right to utility access across the Disputed Easement Area of the Tabicas Property. Finally, it is ordered and declared that Graniteledge has no right, title or interest to enter or use the Tabicas Property for any purpose.

The parties are instructed to confer and submit either a joint proposed form of judgment or their own proposed form of judgment by January 15, 2015.

SO ORDERED

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