TOBIAS F. DANFORTH and ALISON ALDEN vs. DAVID GROOM and THOMAS GROOM.

Plaintiffs filed their Verified Complaint on December 4, 2012, pursuant to G. L. c. 231A, § 1, seeking a declaratory judgment relative to a deeded view easement (the “View Easement”) over property located at 15 Spray Avenue, Marblehead, MA (“Defendant Property”) for the benefit of property located at 10 Spray Avenue, Marblehead, MA (“Plaintiff Property”), and pursuant to G. L. c. 185, § 1(k), claiming a prescriptive easement relative to the View Easement. On the same day, Plaintiffs also filed a Motion for Lis Pendens. Defendants filed their Answer on January 2, 2013, alleging that the View Easement has been terminated. A case management conference was held on January 3, 2013, at which time Plaintiffs filed a Motion to Amend Verified Complaint to substitute Plaintiffs, which was allowed. [Note 1] Defendants filed their Answer to Amended Complaint on January 23, 2013. This court allowed Plaintiffs’ Motion for Lis Pendens on January 31, 2013.

On September 13, 2013, Defendants filed their Motion for Summary Judgment, together with supporting memorandum. [Note 2] Plaintiffs filed their Cross-Motion for Summary Judgment on October 15, 2013, together with supporting memorandum and Appendix. [Note 3] On October 25, 2013, Defendants filed their Reply Brief. A hearing on all of the motions was held on November 18, 2013, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Benjamin P. Ware initially owned both Plaintiff Property and Defendant Property. By deed dated August 13, 1885, and recorded with the Registry at Book 1155, Page 156 (the “1885 Deed”), Benjamin P. Ware conveyed a portion of Plaintiff Property to Horace H. Tyer. The 1885 Deed conveyed an easement (the View Easement) for the benefit of Plaintiff Property as follows:

The right is also granted to said Tyer, his heirs and assigns, to have the land owned by the grantor lying between said way through the bank and the Northeasterly line of the granted premises extended southeasterly, and between the beach and the southeasterly line of said strip thirty feet wide on the southeasterly side of the granted premises remain open, for light, air, and sea view, and unoccupied by any structures except bath houses, built no higher than the bank adjoining said beach, steps down said bank, and the railings therefor, and seats.

By deed dated July 21, 1887, and recorded with the Registry at Book 1201, Page 558 (the “1887 Deed”), Benjamin P. Ware conveyed another portion of Plaintiff Property to Horace H. Tyer.

2. Defendant Property became registered on April 3, 1911, and shown on Certificate of Title No. 815. By deed dated April 25, 1911, and recorded with the Registry at Book 2078, Page 261 (and noted as Document No. 1504 on Certificate of Title No. 832), Mary H. Rose and Hannah U. Ware conveyed Defendant Property to Nathan L. Amster. [Note 4] After several internal transfers, Nathan L. Amster and Estelle D. Amster conveyed Defendant Property to Charles H. Traiser (“Traiser”) by deed dated September 11, 1911 (the “1911 Deed”), recorded with the Registry at Book 2096, Page 298, and registered as Document No. 1600 on Certificate of Title No. 900. Defendant Property is shown on “Plan of Land in Marblehead (Clifton)” dated April 1909 and prepared by Guy W. Ricker, C.E. (the “1909 Plan”). The 1909 Plan is registered as Plan 2516A in the Registry.

3. Certificate of Title No. 900 stated that Defendant Property was subject to the following easement:

So much of the above described land as lies Southwesterly of the line C-D as shown on [the 1909 Plan] is subject as appurtenant to [Plaintiff Property] to the right to have the same remain open for air, light and sea view, and unoccupied by any structure except bath houses built no higher than the bank adjoining the beach, steps down said bank and the railings therefor and seats.

4. By Agreement dated October 31, 1919, and registered with the Registry as Document 6629 on Certificate of Title No. 900 (the “Agreement”), Traiser, as owner of both Plaintiff Property [Note 5] and Defendant Property, in anticipation of granting a deed of Defendant Property to Arthur E. Spencer (“Spencer”), agreed as follows:

It is agreed by and between the said Charles H. Traiser and the said Arthur E. Spencer, each for himself, his heirs, executors, administrators and assigns, that [the View Easement] shall exist and be appurtenant to [Plaintiff Property] so long as [Plaintiff Property] remains in the said Charles H. Traiser and his heirs and devisees, but that [the View Easement] shall cease and no longer exist when title to [Plaintiff Property] shall cease to be in the said Charles H. Traiser, his heirs or devisees. [Note 6]

By deed dated the same day (the “1919 Deed”), Traiser conveyed Defendant Property to Spencer, and cited that the transfer was subject to the View Easement. This deed was registered with the Registry as Document 6630 on Certificate of Title No. 900. [Note 7]

5. By deed dated May 19, 1934, and recorded with the Registry in Book 2993, Page 181 (the “1934 Deed”), Traiser conveyed Plaintiff Property to Grace E. Finnegan (“Finnegan”). The 1934 Deed stated that the conveyance was “subject to and with the benefit of the rights, easements and restrictions therein mentioned or referred to in so far as the same are now in force and applicable.” There was no reference to either the View Easement or the Agreement in the 1934 Deed. [Note 8]

6. By deed dated December 1, 2010, and registered with the Registry on Certificate of Title No. 59591, David Lebowitz and Jodi Lynne Farrin conveyed Defendant Property to Defendants. This deed stated:

So much of the above described land as lies southwesterly of the line C-D, as shown on said plan, is subject as appurtenant to [Plaintiff Property], to the right to have the same remain open for air, light and sea view, and unoccupied by any structure except bath houses built no higher than the bank adjoining the beach steps down said bank and the railings therefor and seats. See [the Agreement].

Defendants received Certificate of Title No. 84505 (“Certificate 84505”). Certificate 84505 stated a reference to the View Easement and the Agreement. However, neither of these documents was listed on the Memoranda of Encumbrances. [Note 9]

7. By deed dated July 16, 2009, and recorded with the Registry in Book 28806, Page 487, Tobias F. Danforth and Alison Alden conveyed Plaintiff Property to Plaintiffs. The deed referenced the View Easement but did not reference the Agreement. **************************

Plaintiffs argue that the View Easement is still registered on Certificate 84505 and as a result the View Easement is still valid. Defendants argue that as a result of the Agreement and the 1934 Deed, the View Easement has terminated. I shall examine each issue in turn.

Defendants argue that the View Easement was extinguished by merger of title in 1911. [Note 10] Rice v. Vineyard Grove Co., 270 Mass. 81 , 86 (1930); Williams Bros., Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 685 (2012); Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008); Cheever v. Graves, 32 Mass. App. Ct. 601 , 606 (1992). Under the common law doctrine of merger, easements are extinguished “by unity of title and possession of the two estates [the dominant and the servient], in one and the same person at the same time”). Williams Bros., 81 Mass. App. Ct. at 685, quoting Ritger v. Parker, 62 Mass. 145 , 146 (1851); York Realty, Inc. v. Williams, 315 Mass. 287 , 289 (1943) (“[I]n order to extinguish an easement by merger, a unity of title must have come into existence in the same person . . . [An owner] cannot have an easement in its own estate in fee”). The View Easement was created by the 1885 Deed, when Plaintiff Property and Defendant Property became separately owned. The two properties were put back in common ownership with Traiser by the 1908 Deed, the 1910 Deed and the 1911 Deed, who held them in common ownership until the 1919 Deed of Defendant Property to Spencer. As a result, I find that the View Easement was extinguished through the merger of title of Plaintiff Property and Defendant Property in 1911.

The severing of the servient and dominant estates again does not recreate the easement unless there is an express grant, a reservation or an implication of a new easement. Cheever, 32 Mass. App. Ct. at 607. The Agreement executed by Traiser in 1919 and the 1919 Deed together re-created the View Easement. The Agreement expressly stated that the View Easement “shall exist and be appurtenant to [Plaintiff Property]...” But the Agreement also stated that the View Easement “shall cease and no longer exist when title to [Plaintiff Property] shall cease to be in the said Charles H. Traiser, his heirs or devisees.” [Note 11] Fifteen years later, Traiser conveyed Plaintiff Property to Finnegan by the 1934 Deed. By the terms of the Agreement, the 1934 Deed terminated the View Easement. Even though every conveyance of Plaintiff Property since 1934 still references the View Easement and not the Agreement, such language does not re-create the View Easement. Moreover, every Certificate of Title issued on Defendant Property since 1934 references both the View Easement and the Agreement. Since the servient estate (Defendant Property) title continues to reference the Agreement, it should be clear that the View Easement is no longer valid. As a result, I find that the View Easement was re-created by the Agreement and the 1919 Deed, but that the View Easement was extinguished by the 1934 Deed.

Plaintiffs contend that the 1919 Deed alone re-created the View Easement because the dominant and servient estates were separated in that conveyance and the 1919 Deed specifically referenced the View Easement. But, as discussed, supra, both the Agreement and the 1919 Deed recorded together constituted the re-creation of the View Easement, subject to conditions specified in the Agreement. The fulfilment of these conditions in the 1934 conveyance to Finnegan resulted in a new extinguishment of the View Easement. [Note 12] See Adams v. Planning Bd. Of Westwood, 64 Mass. App. Ct. 383 , 389 (2005), quoting Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443 , 444 (1990) (“when created by conveyance, the grant or reservation ‘must be construed with reference to all its terms and the then existing conditions so far as they are illuminating’”).

Plaintiffs also argue that the Agreement was not valid as to them because it was only recorded on the registered side (Defendant Property Certificates of Title) and not on the recorded side (Plaintiff Property recorded deeds), thus constituting an “indefinite reference” that does not subject Plaintiffs to notice of the Agreement. [Note 13] See G.L. c. 184, § 25.

No indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it. An indefinite reference means (1) a recital indicating directly or by implication that real estate may be subject to restrictions, easements, mortgages, encumbrances or other interests not created by instruments recorded in due course . . . No instrument shall be deemed recorded in due course unless so recorded in the registry of deeds for the county or district in which the real estate affected lies.

While the Agreement was recorded on Defendant Property’s Certificates of Title and affects the servient estate, there is no record that the Agreement was recorded in Plaintiffs’ Chain of Title or that Plaintiffs had notice of the Agreement. [Note 14] Because Plaintiff Property is unregistered land, the recording statute, G.L. c. 183, governs whether the Agreement applies to Plaintiffs. Section 4 of G.L. c. 183 provides in relevant part that “a conveyance of an estate ... shall not be valid as against any person, except the grantor or lessor ... and persons having actual notice of it, unless it, or an office copy ... is recorded in the registry of deeds for the county or district in which the land to which it relates lies.” Because the Agreement was not recorded in the Registry and there is no record that Plaintiffs had actual notice of the Agreement, the Agreement may not be valid against Plaintiffs. Emmons v. White, 58 Mass. App. Ct. 54 , 63-64 (2003). However, the Agreement’s potential violation of the recording statute and invalidity with respect to Plaintiff Property underscores the point that any View Easement benefitting Plaintiff Property was extinguished by the merger of the two properties under Traiser’s common ownership in 1911 and was only re-created by the Agreement and the 1919 Deed. With the exception of the Agreement and the 1919 Deed, which enumerated conditions of the re-creation and its termination–namely the ownership of Plaintiff Property by anyone other than Traiser, his heirs or devisees–that were triggered by Traiser’s conveyance of the property to Finnegan in 1934, there are no other grants, reservations or implications in either the Defendants’ Certificates of Title or Plaintiffs’ chain of title that re-create the View Easement that was extinguished by merger in 1911. See Cheever, 32 Mass. App. Ct. at 607. As a result, if the Agreement was not valid as to Plaintiff Property, there could have been no re-creation of the View Easement.

Though raised in the Verified Complaint, Plaintiffs did not argue that they had obtained the View Easement by prescription in their summary judgment motion. It is clear that one cannot obtain prescriptive rights against registered land, and Defendant Property is registered land. G.L. c. 185, § 53 (no easement or other rights may be acquired on registered land “by prescription or adverse possession [and no] right of way by necessity shall be implied under a conveyance of registered land”); Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009). As a result, I find that Plaintiffs could not obtain the View Easement by prescription.

As a result of the foregoing, I DENY Plaintiffs’ Motion for Summary Judgment and ALLOW Defendants’ Motion for Summary Judgment.

Judgment to enter accordingly.