Plaintiffs Hugh C. Taylor (Hugh), Jeanne S. Taylor (together with Hugh, the Taylors), and Brian M. Hurley, Trustees of the Taylor Realty Trust (the 1998 Taylor Trust) (altogether, Plaintiffs) commenced this action by filing an unverified complaint on June 9, 2010, by which Plaintiffs sought, pursuant to G. L. c. 231A, § 1, a declaratory judgment that Defendant The Marthas Vineyard Land Bank Commission (Defendant) does not have a right to use or make available to the public several rights of way (viz., the rights of way defined, infra, as the Disputed Way and the Twenty-Foot Way) across their property (the Inn Property) for purposes of creating a public walking trail. [Note 1] Defendant filed an answer to the complaint on August 6, 2010, and filed an amended answer (responding to Paragraph 10 of the complaint) on August 31, 2010. A case management conference was held on September 16, 2010.
On March 28, 2011, Plaintiffs filed a Motion for Summary Judgment. Defendant filed its opposition to Plaintiffs motion on May 13, 2011. On June 15, 2011, Plaintiffs filed their reply brief on the motion. On July 19, 2011, Defendant filed a response to Plaintiffs reply brief. A hearing on the motion was held on August 8, 2011. By Decision dated October 26, 2012 (Land Court Decision 1), this court ruled on Plaintiffs Motion for Summary Judgment, finding, inter alia, as follows:
(a) that there was no basis in historical usage for an easement over the Disputed Way [Note 2] in favor of Diem Lot 5 [Note 3];
(b) that the Vanderhoop Easement [Note 4] did not allow travel to Diem Lot 5;
(c) that Defendants use of the Disputed Way for the benefit of Diem Lot 5 would overload any easement Defendant had to use the Disputed Way for the benefit of Ginnochio Lot 1, the Vanderhoop Parcel, and/or Ginnochio Lot 2;
(d) that the language of the Diem Deed [Note 5] did not limit an alternative easement over the Twenty-Foot Way to Diem personally;
(e) that the conditional right to travel over and install utilities under the Way (40.00 Wide) [i.e., the Disputed Way] and the Way (20.00 Wide) [i.e., the Twenty-Foot Way] shown on Land Court Plan No. 35915A and No. 35915B pursuant to Paragraph 6 of the Diem Deed (Paragraph 6") included a right (the Conditional Right) to travel over and install utilities under the Disputed Way from Lighthouse Road up to the point of the Disputed Ways intersection with the Twenty- Foot Way;
(f) that the Conditional Right did not include a right to travel over and install utilities under the Disputed Way where it continues northwesterly beyond its intersection with the Twenty-Foot Way;
(g) that the Hubert Email [Note 6] satisfied Condition 1 [Note 7];
(h) that, at least up to the point of filing the NOI [Note 8], Defendant had used its reasonable best efforts to construct a means of access from Lighthouse Road, within the meaning of Paragraph 6; and,
(i) that this court was unable to determine, on the basis of the summary judgment record, whether or not Condition 2 had been satisfied, since the summary judgment record contained no evidence as to what action (if any) was taken by the ConCom in response to the NOI.
A pre-trial conference was held on September 23, 2013. A site view of the subject properties was held on May 19, 2014, and the trial was held on May 20, 2014 at the Edgartown District Court. Testimony at trial for Plaintiffs was given by Hugh. Testimony at trial for Defendant was given by James Lengyal (Defendants Executive Director) (Lengyal) and Matthew Dix (an employee of Defendant) (Dix). Sixty-seven exhibits were submitted into evidence. The parties filed post-trial briefs on August 15, 2014, and, at that time, this matter was taken under advisement.
The court has issued a decision (Land Court Decision 2) as of todays date. In accordance with Land Court Decisions 1 and 2, it is hereby:
ORDERED and ADJUDGED that Plaintiffs Motion to Strike Portions of Lengyel Affidavit 1 [Note 9] is DENIED;
ORDERED and ADJUDGED that there is no basis in historical usage for an easement over the Disputed Way in favor of Diem Lot 5; and,
ORDERED and ADJUDGED that there is no basis for Defendants argument that the Vanderhoop Easement allows travel to Diem Lot 5; and,
ORDERED and ADJUDGED that Defendants use of the Disputed Way for the benefit of Diem Lot 5 would overload any easement Defendant has to use the Disputed Way for the benefit of Ginnochio Lot 1, the Vanderhoop Parcel, or Ginnochio Lot 2; and,
ORDERED and ADJUDGED that the language ofthe Diem Deed did not limit an alternative easement over the Twenty-Foot Way to Diem personally; and,
ORDERED and ADJUDGED that the Conditional Right includes a right to travel over and install utilities under the Disputed Way from Lighthouse Road up to the point of its intersection with the Twenty-Foot Way, as well as a right to travel over and install utilities under the Twenty-Foot Way; and,
ORDERED and ADJUDGED that the Conditional Right does not include a right to travel over and install utilities under the Disputed Way as it continues northwesterly beyond its intersection with the Twenty-Foot Way; and,
ORDERED and ADJUDGED that the Hubert Email satisfies Condition 1; and,
ORDERED and ADJUDGED that, at least up to the point of filing the NOI, Defendant used its reasonable best efforts to construct a means of access from Lighthouse Road, within the meaning of Paragraph 6; and,
ORDERED and ADJUDGED that Plaintiffs Motionfor SummaryJudgment is ALLOWED IN PART, inasmuch as Defendant does not have a right to use the Disputed Way to benefit Diem Lot 5; and,
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED IN PART, inasmuch as there was not enough evidence in the summary judgment record to rule on whether Defendant has rights to travel over and install utilities under (a) that portion of the Disputed Way running from Lighthouse Road to the intersection of the Disputed Way and the Twenty-Foot Way, and (b) the Twenty-Foot Way, for the benefit of Diem Lot 5; and,
ORDERED and ADJUDGED that all parties rights to use the Disputed Way for access purposes include making use of the Disputed Way for access to and from Lighthouse Road, by foot and vehicle alike; and,
ORDERED and ADJUDGED that, Defendants inability to obtainapproval of the NOI from the ConCom (due to the NOIs noncompliance with the Aquinnah Wetland Water Resource Bylaw (the Bylaw) and the Massachusetts Wetland Protection Act (the WPA)) satisfies the definition of an unsuccessful attempt under Paragraph 6, that Defendants application to the ConCom for approval of the NOI did constitute reasonable best efforts under Paragraph 6, that Defendant has satisfied Condition 2, and that the Conditional Right has arisen; and,
ORDERED and ADJUDGED that Defendant has the right to use the Twenty-Foot Way to access Diem Lot 5, and that Defendant has the right to use the portion of the Disputed Way depicted on Plan 35915A and Plan 35915B (i.e., the portion of the Disputed Way that overlaps with the Twenty-Foot Way) to access Diem Lot 5; [Note 10] and,
ORDERED and ADJUDGED that Defendants use of the Disputed Way to allow members of the public to access the Vanderhoop Parcel and Ginnochio Lot 2 (but not Diem Lot 5) does not exceed the scope of the Disputed Way or the intent of the grantors thereof, and therefore does not amount to an overburdening of the Disputed Way; [Note 11] and,
ORDERED and ADJUDGED that Defendants use of the portions of the Disputed Way and the Twenty-Foot Way located on the Inn Property, and its use of the portion of the Twenty-Foot Way located on Walker Lot 1, the Olgilvie Property, and Diem Lot 7 to allow public access to Diem Lot 5 from Lighthouse Road, does not amount to an overburdening of these easements. [Note 12]
By the court.
[Note 1] This case was initially commenced just by the Taylors, in their capacities as trustees of the 1998 Taylor Trust. On March 28, 2011, the Taylors filed a motion for leave to file an amended complaint adding Brian M. Hurley, Trustee as a plaintiff. In this motion, the Taylors stated that amendment of their complaint was needed in order to correct the names of the parties who own the land over which the Disputed Way runs, to more accurately identify the parcels owned by Defendant, to add a request for a preliminary injunction, and to clarify and update their complaint. The Taylors further stated that such amendment would not alter their basic claims. This motion was allowed, and Plaintiffs filed their amended complaint on June 17, 2011, in which Brian M. Hurley was named as a party to this case.
[Note 2] The easements at issue in this case include the rights of way shown on Land Court Plans 35915A (Plan 35915A) and 35915B (Plan 35915B), labeled Way (40.00 Wide) (the Disputed Way) and Way (20.00 Wide) (the Twenty-Foot Way).
[Note 3] Diem Lot 5 is defined in Land Court Decision 2 as the lot labeled as lot 5" on Land Court Plan 31560D (Plan 31560D). From north to south, Plan 31560D shows three other lots, labeled as lots 6 (Diem Lot 6), 7 (Diem Lot 7), and 8 (Diem Lot 8).
[Note 4] The Vanderhoop Easement is defined in Land Court Decision 2 as the easement by implication found by the Land Court in Taylor v. Vanderhoop, 88 MISC 129925, available at 1989 WL 1183091 at *6 (Mass. Land Ct. July 19, 1989) (Cauchon, J.) (the 1989 Decision), wherein the court found that the owners of the Vanderhoop Parcel (defined, infra) possess[ed] rights to pass and repass over the entire length of the [Disputed] Way for purposes of accessing their land. The court found that such rights included a right:
to enter upon and to pass and repass without obstruction, by foot or by vehicle, over and along the entire length of the forty (40) foot wide Way, such easement encompassing each and every right necessary or incidental to . . . enjoyment thereof, and that . . . their heirs and assigns are members of the class so entitled to use the Way.
The Vanderhoop Parcel is defined in Land Court Decision 2 as the lot conveyed by deed dated December 30, 1976 and recorded in the Dukes County Registryof Deeds (the Registry) at Book 341, Page 314 bywhich John O., Pauline, and Leonard F. Vanderhoop conveyed to David E. and Evelyn Vanderhoop (together, the Vanderhoops). The Vanderhoop Parcel is depicted on Land Court Plan 19215A (Plan 19215A) as separating Ginnochio Lots 1 and 2 (defined, infra) and is labeled Pauline Vanderhoop; it is also partially depicted on Plan 35915A, with the label Edwin D. Vanderhoop.
Ginnochio Lots 1, 2, and 3 are defined in Land Court Decision 2 as the lots labeled on Plan 19215A as lots 1 (Ginnochio Lot 1), 2 (Ginnochio Lot 2), and 3 (Ginnochio Lot 3) (together, the Ginnochio Lots), which are described in Original Certificate of Title No. 19215 dated November 20, 1953 (the Ginnochio Certificate). On November 30, 1950 and July 20, 1951, Frances A. Ginnochio (Ginnochio) registered the Ginnochio Lots.
[Note 5] The Diem Deed is defined in Land Court Decision 2 as the deed dated December 15, 1986 and recorded in the Registry as Document No. 21538 (Certificate of Title No. 7167) at Book 37, Page 205 (the Diem Deed), pursuant to which the Isaac M. Taylor (Isaac) Revocable Trust (the 1986 Taylor Trust -- which was established by Deed of Trust dated November 7, 1986 and registered in the Registry as Document No. 21500) and Gertrude W. Taylor (Gertrude) conveyed the portion of Walker Lot 1 (defined, infra) that remained after Walker Lot 3 (defined, infra) was created (the Diem Parcel) to Peter Diem (Diem).
Walker Lots 1 and 2 are defined in Land Court Decision 2 as the lots depicted on Land Court Plan 31560A (Plan 31560A) as two sub-lots labeled lots 1 and 2" (together, the Walker Parcel). Pursuant to Transfer Certificate of Title 2580, dated May 25, 1964 (the Walker Certificate), Isaac and Gertrude received certified title to the Walker Parcel.
[Note 6] The Hubert Email is defined in Land Court Decision 2 as the email dated February 17, 2010 from the owner of the Hubert Property (defined, infra), James W. Hubert (Hubert), which was addressed to Julie Schaeffer (Schaeffer), an ecologist employed by Defendant. The Hubert Property is defined in Land Court Decision 2 as the lot depicted on Plan 31560A as located to the east of Diem Lot 8, labeled N/F James H. Hube[rt].
[Note 7] Conditions 1 and 2 are defined in Land Court Decision 2 as the conditions set forth in Paragraph 6, which provides, in relevant part, as follows:
Grantee [Diem], his heirs, successors and assigns, shall make use of the existing dirt road [the Dirt Road] . . . currently used by Grantor [Gertrude] and her family as access from [Lighthouse] Road over [the Hubert Property] to the [Diem Parcel]. In the event [Condition 1"] that any person asserts adverse rights to said dirt road, or in any manner otherwise formally calls into question by written notice or physical action [Diem]s right to make use of [the Dirt Road], or in the event that said [Dirt Road] in its then condition is deemed inadequate to support a subdivision of the [Diem Parcel] into not fewer than four (4) lots by the Planning Board . . . and any other board of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction over the subdivision of such land, [Diem], his heirs, successors and assigns, first shall be obligated [Condition 2"] to use his reasonable best efforts to construct a means of access to the [Diem Parcel] with an entrance from the portion of the Premises fronting on [Lighthouse] Road.
[Note 8] The NOI is defined in Land Court Decision 2 as the Notice of Intent dated July 15, 2011 filed by Defendant with the Aquinnah Conservation Commission (the ConCom), by which Defendant sought approval to construct an alternative access way (the Proposed Access) to Diem Lot 5 from Lighthouse Road via the southern branch of the Eastern Passage (defined, infra) across the Olgilvie Property (defined, infra).
The Eastern Passage is defined in Land Court Decision 2 as the right of way created in 1985 when Isaac and Gertrude granted two easements (recorded in the Registryas Documents Nos. 19032 and 19033) (together, the Eastern Passage Easements) to Ann Vivian Dintenfass and Andrew S. Dintenfass (who owned property to the east of Ginnochio Lot 3) and to Mitchell and Gloria Levitas (together, the Levitases) to provide utilities and vehicular access across the Walker Parcel. The Eastern Passage runs from the southwest corner of Ginnochio Lot 3 to a point where it connects with the Dirt Road, where it turns and runs along the same path as the Dirt Road up to the point where the Dirt Road exits into the Hubert Property, where it turns and runs along the boundary of the Walker Parcel to Lighthouse Road. The Eastern Passage was first depicted in 1987 on Land Court Plan 31560C (Plan 31560C).
The Olgilvie Property is defined in Land Court Decision 2 as the same lot as Diem Lot 5. By deed dated December 8, 1998 and recorded in the Registry as Document No. 43235 on December 15, 1998 at Book 191, Page 71, Gertrude and Amy L. Domini (Domini), trustee of the Taylor Irrevocable Alimony and Family Trust (the 1987 Taylor Trust" -- which was created by declaration of trust recorded in the Registry on October 15, 1987 as Document No. 23262) conveyed the Olgilvie Property to Donald G. Olgilvie and Fanny S. Olgilvie.
[Note 9] Lengyel Affidavit 1 is defined in Land Court Decision 1 as the Mass. R. Civ. P. 56(f) Affidavit of James Lengyel (Defendants Executive Director) filed by Defendant in connection with Defendants opposition to Plaintiffs Motion for Summary Judgment.
[Note 10] It should be noted that, although the issue of utilities rights were addressed in Land Court Decision 1, at trial, the parties did not address the issue of whether Defendant has such utilities rights (either in the Twenty-Foot Way or the Disputed Way) for the benefit of any of its properties in the North Head area of Defendants Aquinnah Headlands Preserve (the North Head). The court makes no ruling as to utilities rights. Likewise, since Plaintiffs did not dispute Defendants use of the Diem Parcel Subdivision Easement (defined, infra), the court also issues no ruling as to that issue.
In Land Court Decision 2, the Diem Parcel Subdivision Easement is defined as the new twenty-foot wide right of way depicted on Plan 31560D, labeled 20 ft. wide WAY to lots 5 & 6, which branches off of the Twenty-Foot Way, and runs across a panhandle at the northwest part of Diem Lot 7 to Diem Lot 6. According to the plan of land dated October 7, 1987 (the Diem Subdivision Plan) entitled Plan of Land in Gay Head, Mass. Surveyed for Peter Diem (which is the draft plan used by the Land Court Engineering Division to create Plan 31560D, and which has a scale of 50'-1", as compared with the far less-detailed 150'-1" scale of Plan 31560D), the Diem Parcel Subdivision Easement continues onto Diem Lot 6, turns north, and runs onto Diem Lot 5.
[Note 11] As noted in Land Court Decision 2, this finding is contingent upon the specific facts in the summary judgment and trial record as to the actual public use of the North Head. If such public use were to substantially increase, there might be cause to revisit whether public use of the Disputed Way to access the Vanderhoop Parcel and/or Ginnochio Lot 2 overburdens said way. E.g., Myers v. Salin, 13 Mass. App. Ct. 127 , 142 (1982) ([There] will be time enough to consider whether [the plaintiff] in fact overburdens the easement when and if he makes a more significant or any unreasonable use of the [easement]. (citation omitted)).
[Note 12] As noted, supra, this finding is contingent upon the specific facts in the summary judgment and trial record as to the actual public use of the North Head; if public use were to substantially increase, there might be cause to revisit the issue of overburdening. See Myers, 13 Mass. App. Ct. at 142.