MISC 12-465786

June 3, 2014

Suffolk, ss.



Plaintiff /Defendant-in-Counterclaim 143-145 Nahant Road, LLC (Nahant) initiated this trespass action against Defendant/ Plaintiff-in-Counterclaim George Mastoras, Trustee of Atlantic Realty Trust (Atlantic), regarding a sewer pipe that passes through and under Nahant Road’s property, servicing Atlantic’s adjacent property. In Count I of a two-count Complaint, filed June 12, 2012, Nahant claims that the sewer pipe connecting Atlantic’s property to the Town of Nahant’s sewer system constitutes a trespass or a continuing trespass upon, through, and under its property without right and demands that Atlantic be permanently restrained and enjoined from maintaining the sewer pipe in its current location. In Count II, Nahant alleges that Atlantic’s failure to remove or cure the trespass violates G. L. c. 93A and seeks damages, costs and reasonable attorney’s fees.

Atlantic filed an Answer on July 17, 2012, asserting twenty-one affirmative defenses. Atlantic also filed a one-count counterclaim seeking to quiet title and a declaration that it has acquired a prescriptive right to use Nahant’s property for the continued location of the sewer pipe. Nahant filed an Answer to Atlantic’s counterclaim on August 3, 2012, asserting eighteen affirmative defenses.

Nahant filed a motion for summary judgment on the counterclaim on December 11, 2013. On January 14, 2014, Atlantic filed a cross-motion for summary judgment as well as a written opposition to Nahant’s motion. On January 24, 2012, Nahant filed an opposition to Atlantic’s cross-motion for summary judgment. A hearing was held on January 29, 2014, at which all parties were heard.

The summary judgment record includes the parties’ briefs and submissions as well as affidavits, answers to interrogatories and responses to requests for production of documents as well as exhibits filed, all under Land Court Rule 4. The following material facts are not in dispute:

1. Plaintiff /Defendant-in-Counterclaim 143-145 Nahant Road, LLC is the owner and rightful possessor of premises located at 143-145 Nahant Road in Nahant (Nahant Property).

2. Nahant purchased the Nahant Property in 1986. It is described in a deed recorded with the Essex South District Registry of Deeds in Book 27444, at Page 378, as follows:

NORTHEASTERLY by Nahant Road, 75 feet;

SOUTHEASTERLY by Spring Road, 100 feet;

SOUTHWESTERLY by Lot A on the plan hereinafter mentioned, being Land now or formerly of Cummings, 75 feet; and

NORTHWESTERLY by Lot B on said plan, being land now or formerly of said Cummings, 100 feet . . . .

3. Defendant/Plaintiff-in-Counterclaim George Mastoras, as Trustee for Atlantic Realty Trust is the owner of premises at 141 Nahant Road in Nahant (Atlantic Property).

4. Atlantic purchased the Atlantic Property in November 1994. It is described in a deed recorded with the Essex South District Registry of Deeds in Book 12833, at Page 558 as follows:

EASTERLY by Spring Road, 127.35 feet;

SOUTHERLY by land of the Town of Nahant, 152.64 feet;

WESTERLY by land of Cavallaro, 213.65 feet;

EASTERLY again by land now or late of Bigney, 100 feet; and

NORTHERLY by land now or late of Bigney, 75 feet. . .

5. The Atlantic Property is serviced by a sewer pipe that runs approximately 150 feet underneath the Nahant Property to Spring Street. The pipe carries sewage and waste from the Atlantic Property to the Town of Nahant’s sewer system.

6. The sewer pipe was installed on an unknown date prior to Nahant’s purchase of the Nahant Property in 1986. Nahant did not learn of the sewer pipe running underneath its property until November, 2011, when the manager of Nahant became aware of a foul smell in the middle of the rear yard of the Nahant Property.

7. On December 30, 2001, Atlantic had the sewer pipe serviced by Drains Unlimited.

8. On October 23, 2011, Atlantic had the sewer pipe serviced by Ben Hammond.

9. On December 20, 2011, Atlantic had the sewer pipe serviced by Drains Unlimited.

10. On January 24, 2012, Atlantic had the sewer pipe serviced by Drains Unlimited.

11. On each of the four service dates, George Mastoras first contacted the Town of Nahant to notify them of the sewer problems precipitating the need for service. The Town would then send an employee to inspect the sewer utilizing the manhole located on Spring Street. Once the Town of Nahant confirmed the problem was not caused by a blockage in the Town’s connection or pipe, Mastoras contacted a third party (Drains Unlimited or Ben Hammond) to determine what the problem was in the section of the pipe running from the Atlantic Property to the connection point at Spring Street.

12. On each of the four service dates, the sewer pipe was serviced through the manhole located on Spring Street or via a connection on the Atlantic Property.

* * * * * *

This case is before the court pursuant to the parties’ cross-motions for summary judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

However, when the court is faced with cross-motions, as is the case here, it must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. Each moving party bears the burden of affirmatively demonstrating the absence of triable issues of fact and its entitlement to judgment as a matter of law. Lev v. Beverly Enterprises–Massachusetts, Inc., 457 Mass. 234 , 237 (2010). This burden may very well shift back and forth between the parties. This case is ripe for summary judgment on the issue of whether Atlantic is entitled to an easement by prescription because the material facts are not in dispute and the case may be decided based on applicable law.

Atlantic’s cross-motion relies on facts relating to adverse possession and prescriptive easements, but at the hearing Atlantic conceded that it is seeking a prescriptive easement and not pursuing an adverse possession claim. Obtaining a prescriptive easement requires “uninterrupted, open, notorious and adverse use for twenty years.” Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); see also G. L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Unlike adverse possession, a claim of prescription does not require proof of “exclusive” use. One seeking to establish a prescriptive easement must show that it is relying on its own use or use by those under whom it claims, and not use by a third party. Labounty v. Vickers, 352 Mass. 337 (1967). The party claiming the easement carries the burden of proof and persuasion on each element. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Tucker v. Poch, 321 Mass. 321 , 323 (1947). Failure to provide sufficient evidence for any of the elements defeats the entire prescriptive easement claim. See Gadreault v. Hillman, 317 Mass. 656 , 661 (1945).

I. Atlantic’s Use Of The Sewer Pipe Was Not Open and Notorious

The requirement that a use be “open and notorious” ensures that the true owner of the property has notice that a claim of right is being made over his property, and gives the owner a “fair chance” to protect his property interests. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Foot v. Bauman, 333 Mass. 214 , 218 (1955). The use must be without attempted concealment, and be “sufficiently pronounced” so that a landowner exercising reasonable supervision will either directly or indirectly be made aware of the use. White v. Hartigan, 464 Mass. 400 , 416 (2013); Boothroyd, 68 Mass. App. Ct. at 44. The true owner’s actual knowledge is not required. Boothroyd; 60 Mass. App. Ct. at 44. It is enough that the use be of such nature that the landowner is deemed to have received “constructive notice” of the prescriptive use. Lawrence, 439 Mass. at 421.

The sewer pipe at issue here runs underground, starting at the rear of the building on the Atlantic Property, passing under the Nahant Property and ending at a connection to the Town of Nahant’s system under Spring Street. The pipe is subterranean and is not visible to the owners of the Nahant Property. There are no other indicators above ground on the Nahant Property suggesting or indicating the existence of an underground pipe servicing the Atlantic Property. [Note 1]

Few Massachusetts cases offer clear guidance on prescriptive easements of underground utilities such as pipes and wires. Atlantic correctly argues that underground use that is not observable above ground may be sufficient to establish a prescriptive easement. See, e.g., Foot v. Bauman, 333 Mass. 214 (1955) (finding that use of a sewer was sufficiently open and notorious to create a prescriptive easement). Atlantic cites three additional cases in support of this proposition: Tinker v. Bessel, 213 Mass. 74 (1912), Cummings v. Franco, 335 Mass. 639 (1957), and Rottman v. White, 74 Mass. App. Ct. 586 (2009). However, determining whether a set of activities sufficiently supports a claim of adverse possession or prescriptive easement is “inherently fact-specific.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

The cases on which Atlantic relies are factually distinguishable from those before this court, and the cases cited are not all strictly-speaking prescriptive easement cases. In the instant case, Nahant had no constructive notice of the sewer line by deed or other recorded instrument and the record indicates that it did not have actual knowledge of the sewer pipe until November 2011. The sewer pipe is not observable by or apparent to the owners of the Nahant Property, as there are no related installations or connection points located above ground on the Nahant Property. A manhole cover on Spring Street and an access point on the Atlantic Property represent the only visible indicators, and neither is located on the Nahant Property, thus are not accessible to the owners of the Nahant Property. [Note 2]

In contrast, the cases on which Atlantic relies detail factual patterns which support a finding of open and notorious use by the party asserting prescription. Tinker, a century-old case that is admittedly difficult to parse and short on facts, concerns the use of water flowing from an underground spring. [Note 3] Importantly, in Tinker, the dominant and servient estates were once held in common ownership, and the owner of both estates conveyed an acre of land by a deed containing language that the land comes with the right to “bring [the spring water] on to said premises.” Tinker, 213 Mass. at 75. While “nothing was done on the surface of the land in the vicinity of the spring to indicate that the defendants or their predecessors in title were occupying it adversely,” the deed language could have alerted the real owner to the use of the spring water. Id. In addition, the main issue on appeal appears to be the scope of an already-established easement and whether it rises to the level of adverse possession of the entire spring. Id. at 76. [Note 4]

In Foot v. Bauman, a private sewer was constructed under three adjacent parcels of land (Parcels A, B and C) that were originally owned by an individual. Foot, 333 Mass. at 215. The sewer line, similar to the sewer pipe used by Atlantic, originated at Parcel A, ran under Parcels B and C, and terminated at a street connection. Despite the fact that the line ran underground, the manholes located on Parcels B and C, providing access to the sewer, were visible. Caretakers for Parcel A entered onto Parcels B and C in order to serve the sewer line, accompanied at times by employees of the owners of Parcels B and C. Id. at 216-17. Evidence was also presented that at least one of the Parcel B owners had actual knowledge of the sewer, as he entered into an informal arrangement with the Parcel A owner that, should a sewer blockage occur, the party responsible would cover repair costs. Id. at 217. Based on these circumstances, the court found that Parcel A held a prescriptive easement over Parcels B and C for use of the sewer line.

Similarly, in Cummings v. Franco the land of both the plaintiff and defendant were once held in common ownership, as part of a single tract. When the owner divided the tract into two lots, water was supplied to the rear lot from the street via a pipe passing under the front lot. The deed stated that the conveyance of the rear lot was made “with and subject to water privileges mentioned” in a previous deed. Cummings, 335 Mass. at 640. The court found that an easement for use of the water pipe had been granted by implication due to the language in the conveying instrument, combined with the fact that the use was “reasonably necessary for the beneficial enjoyment of the land conveyed.” Id. at 643. Visible utility wires also extended above ground from the front lot to the rear lot, providing the rear lot with electricity, and putting the front lot owner on notice that utilities passed through the front lot in order to access the rear. Finally, at the time of the conveyance, a separate water meter had been installed in the house located on the front lot for purposes of measuring water supplied to the rear lot. Id.

In the most recent case on which Atlantic relies, Rottman v. White, the court found that the plaintiff—the servient estate owner—had actual knowledge of a sewer easement benefiting the defendant. Plaintiff’s predecessor-in-title had granted an easement to install and maintain a sewer pipe that would provide access to the city’s main system. Rottman, 74 Mass. App. Ct. at 587. Plaintiff purchased the property unaware of the easement, despite the fact that it was recorded with the appropriate registry of deeds. When the plaintiff eventually learned of the sewer pipe, he took steps to prohibit the defendants from using it, to no avail. The court in Rottman, finding that the plaintiff had actual notice of the sewer use, did not delve into any additional indicators or factors that could give rise to notice. As such, it provides little guidance in a situation where one party clearly had no actual notice of the adverse use.

As previously noted, no additional indicators accompanied Atlantic’s use of the underground sewer pipe that might have reasonably alerted Nahant of its existence and risen to the level of open and notorious use required to establish a prescriptive easement. According to the summary judgment record, the two parcels did not derive from common ownership. No manholes or other visible access points are present within the boundaries of the Nahant Property. When necessary, service and maintenance work was conducted on the Atlantic Property or the public street itself, with no workers or employees entering or crossing the Nahant Property. Nahant did not learn of the sewer pipe until November 2011. Nahant therefore had no actual notice of the existence of the sewer pipe across its property, nor were there any other visible indicators on its property that would reasonably put Nahant on constructive notice. Atlantic’s use of the sewer pipe was not sufficiently open and notorious to satisfy that element of prescriptive use.

II. Atlantic Failed To Prove Its Use Of The Sewer Pipe For A Twenty Year Period

As the party claiming the prescriptive easement, Atlantic carries the burden of proof and persuasion on each and every element. Houghton, 71 Mass. App. Ct. at 835. Therefore, the court’s determination that use of the sewer pipe was not open and notorious is enough to defeat Atlantic’s claim. However, even if Atlantic’s use of the sewer pipe was sufficiently open and notorious, Atlantic failed to establish that the use of the sewer pipe by the owner of the Atlantic Property was continuous for the statutory period. G. L. c. 187, § 2 provides in relevant part, “[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years”.

A claimant who has owned property for fewer than 20 years may “tack” on to successive periods of adverse use by immediately preceding owners in its chain of title. See Ryan, 348 Mass. at 264. Atlantic also asserts that “wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim or right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524 , 528-29 (1930). Neither party provided evidence establishing the date of the sewer pipe’s construction or installation. The parties did stipulate, however, that it was constructed prior to 1986, when Nahant purchased its property.

Atlantic purchased its property in 1994, and claims it acquired the use of the sewer pipe from its predecessor-in-title, but did not identify the extent of their use, if any, of the sewer pipe. The record is simply bare of any information regarding the use of the Atlantic Property, or even the fact that it was used as opposed to vacant prior to Atlantic’s purchase in 1994. Since this case was commenced by Nahant in 2012, there is a failure of proof of twenty years of use by Atlantic or its predecessors-in-title. Since Atlantic has the burden of establishing this element of use and the court cannot draw an inference of prior use in Atlantic’s favor from this record, Atlantic failed to establish both that its use of the sewer pipe was open and notorious and that its use extended for twenty years. Therefore its claim for a prescriptive easement fails as a matter of law.

Accordingly, Nahant’s motion summary judgment defeating Atlantic’s prescriptive easement claim is GRANTED, and Atlantic’s cross-motion for summary judgment establishing a prescriptive easement is DENIED. Plaintiff’s claim under G. L. c. 93A will be dismissed without prejudice as this court does not have jurisdiction over such actions.

The Complaint also set forth a count for trespass, which is not decided at this stage, as it was not presented by these cross-motions. Plaintiff has until June 16, 2014, to advise the court and Atlantic, whether it intends to press the trespass claim in the context of this case or whether it will pursue the trespass action in another forum, along with the count under G. L. c. 93A, if it chooses to proceed under that claim. If Nahant chooses not to proceed further with its trespass action in this court, the court will enter judgment in accordance with this decision, giving Atlantic a reasonable time to apply for permits necessary to relocate the sewer pipe so that it does not run under the Nahant Property. If Nahant chooses to litigate the trespass count in this forum, the court will schedule a conference call to discuss with the parties how the case will proceed.


[Note 1] The parties agreed at oral argument that the Nahant Property contains nothing above ground that would indicate the existence of an underground sewer pipe.

[Note 2] Atlantic argues that the sewer access point located on its property is visible to owners of the Nahant Property, rendering Atlantic’s use of the sewer pipe open and notorious. However, Atlantic has produced no evidence nor made assertions it accessed the sewer directly from the Nahant Property. It is this court’s opinion that observing any maintenance or servicing work conducted via an access point located on a neighboring property does not clearly support the inference that one’s own property is also being utilized.

[Note 3] Tinker provides few facts and, in lieu of “reviewing the evidence in detail,” appears to rely on previous findings made in a separate master’s report. Tinker, 213 Mass. at 75.

[Note 4] The Tinker court appears to lay out a narrow ruling addressing only the scope of the prescriptive easement, finding that the easement holder is limited to the amount of water actually withdrawn from the well. Id. at 77.