ELISA ENTINE, TRUSTEE OF ELISA REDLER ENTINE REVOCABLE TRUST vs. GRETCHEN A. REILLY, INDIVIDUALLY AND AS TRUSTEE OF RICHARD A. REILLY REVOCABLE TRUST, MARY C. BULETZA, TRUSTEE OF RICHARD A. REILLY REVOCABLE TRUST, HINGHAM INSTITUTION FOR SAVINGS AND THE TOWN OF BARNSTABLE.

Plaintiff Elisa Entine filed her unverified Complaint on March 11, 2013, alleging 1) trespass by Defendants Gretchen A. Reilly and the Town of Barnstable (the “Town”) on an easement (“Easement 1”) claimed by Plaintiff, 2) declaratory relief relative to rights in Easement 1, 3) negligence on behalf of the Town involving Easement 1, and 4) a request for stay to prevent the Town from interfering with Plaintiff’s use of Easement 1. Plaintiff subsequently filed a First Amended Complaint on May 8, 2013, replacing Plaintiff Elisa Entine, individually, with Elisa Entine, as Trustee of Elisa Redler Entine Revocable Trust and adding as a Defendant Gretchen A. Reilly and William Reilly, as Trustees of the Richard A. Reilly Revocable Trust; a Second Amended Complaint on June 10, 2013, replacing Defendant William Reilly as Trustee with Mary Buletza as Trustee; a Third Amended Complaint on July 5, 2013, removing tort claims (trespass and negligence); and a Fourth Amended Complaint on July 22, 2013, adding as a Defendant Mortgage Electronic Registration System, Inc. (“MERS”). [Note 1]

As a result of the foregoing, Plaintiff seeks in her Fourth Amended Complaint declaratory relief, pursuant to G. L. c. 231A and G. L. c. 240 [Note 2], that she is the holder of an easement (Easement 1) via a June 30, 1983 instrument registered at the Barnstable County Registry of Deeds (the “Registry”) as Document #313962 on Transfer Certificate of Title No. 129011 (for “Lot C,” the servient estate). Plaintiff alleges that Easement 1 gives her rights to use a portion of the land of Defendants Gretchen Reilly, individually, and Gretchen Reilly and Mary Buletza as Trustees of the Richard Reilly Revocable Trust (collectively the “Reilly Defendants”), which land is referred to as Lot C on Land Court Plan 8502-C2 (the “Reilly Property”). Plaintiff also seeks in her Fourth Amended Complaint a declaration that the rights of the Town in a 1956 easement over the Reilly Property registered as Document #50849 on Certificate of Title No. 129011 were abandoned, and that any easement rights that the Town has under a 2011 easement over the Reilly Property registered as Document #939507 on Certificate of Title No. 129011 are subject to Plaintiff’s rights pursuant to Easement 1. Finally, Plaintiff requests a stay prohibiting the Town from performing any work that conflicts with Plaintiff’s rights under Easement 1.

The Reilly Defendants filed their Answer, Affirmative Defenses, and Counterclaim to Plaintiff’s Fourth Amended Complaint on September 3, 2013, seeking by their Counterclaim declaratory relief pursuant to G. L. c. 231A that Plaintiff’s right to use Easement 1 has terminated, or relocation of Easement 1 in the event that this court finds Plaintiff’s right to use Easement 1 has not terminated. The Town filed its Answer and Counterclaim to Plaintiff’s Fourth Amended Complaint on September 30, 2013, also seeking declaratory relief pursuant to G. L. c. 231A that Plaintiff’s right to use Easement 1 has terminated, or seeking relocation of Easement 1 in the event that this court finds Plaintiff’s right to use Easement 1 has not terminated. Plaintiff filed her Reply to the Reilly Defendants’ Counterclaims on October 4, 2013, and her reply to the Town’s Counterclaims on October 21, 2013. MERS was replaced by Defendant Hingham Institution for Savings (“Hingham Savings”). Hingham Savings filed its Answer to Plaintiff’s Fourth Amended Complaint, its Answer to the Reilly Defendants’ Counterclaims, and its Answer to the Town’s Counterclaims, on October 7, 2013.

The parties initially determined that a trial would be necessary because of disputed material facts, and a pre-trial conference was held on November 19, 2014. Winter storms postponed the February 18, 2015 trial date. On April 27, 2015, Plaintiff moved for leave to file a partial summary judgment motion on the sole issue of the existence of Easement 1 as an easement and not as a license, and indicated that resolution of this issue would either resolve or expedite settlement of the case. Plaintiff’s Motion for Partial Summary Judgment was filed together with supporting memorandum, exhibits, Affidavit of Counsel Jason A. Manekas and Affidavit of Theodore A. Schilling (“Schilling”) (“Schilling Affidavit 1”) on June 19, 2015. Plaintiff also submitted a request for Attorney’s Fees pursuant to G. L. c. 231, § 6F at that time. The Reilly Defendants’ Cross-Motion for Partial Summary Judgment and Opposition to Plaintiff’s Motion for Partial Summary Judgment was filed, together with supporting memorandum, exhibits, Affidavit of Counsel Timothy J. McGahan and Affidavit of James Jerome Coogan (“Coogan Affidavit 1”), and Motion to Strike Schilling Affidavit 1, on July 20, 2015. Plaintiff filed her Opposition to the Reilly Defendants’ Cross-Motion, together with Supplemental Affidavit of Theodore A. Schilling (“Schilling Affidavit 2”) and Opposition to Motion to Strike Schilling Affidavit 1 and Motion to Strike Coogan Affidavit 1, on July 30, 2015. The Town filed a Reply to both motions for summary judgment, in which it supported the Reilly Defendants’ motion, on July 31, 2015. On August 10, 2015, the Reilly Defendants filed a supplemental memorandum in support of their Cross-Motion for Summary Judgment, including Supplemental Affidavit of James Coogan (“Coogan Affidavit 2”) and Motion to Strike Schilling Affidavit 2. A hearing was held on all motions on August 11, 2015, and all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

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

1. Plaintiff, as Trustee of the Elisa Redler Entine Revocable Trust under a Declaration of Trust dated June 14, 1995, as amended by First Amendment and Restatement dated October 23, 2008, is the owner of property located at 1691 and 1694 Main Street (formerly Rushy Marsh Road), Barnstable, MA (the “Plaintiff Property”), evidenced by Transfer Certificate of Title #193530. The Plaintiff Property is depicted as lots 3-A and 4-A on Land Court Plan 16194-B.

2. The Reilly Defendants are owners of the Reilly Property, as evidenced by Transfer Certificate of Title #129011. The Reilly Property is shown as Lot C on Land Court Plan 8502-C-2.

3. Helen B. Taussig (“Taussig”) formerly owned both the Plaintiff Property and the Reilly Property. Taussig conveyed the Plaintiff Property on January 31, 1961 to Catherine Taussig Opie, Helen Opie Ryan (also known as Helen Opie Brigham), and Frank J. Opie as joint tenants via a quitclaim deed registered as Document #78271 on Certificate of Title No. 29580 (the “Opie Certificate of Title”). Catherine Taussig Opie subsequently died on January 8, 1980.

4. Taussig granted Easement 1 to Helen Opie Brigham (formerly Helen Opie Ryan) and Frank J. Opie (the “Opies”) [Note 3] on June 30, 1983, registered as Document #313962 on Certificate of Title #92478 (to Johns Hopkins University, a predecessor owner of the Reilly Property, see infra, (the “Johns Hopkins Certificate of Title”)), which granted the right to use a portion of the Reilly Property. The first page of Easement 1 states, “HELEN BROOKE TAUSSIG TO HELEN OPIE BRIGHAM ET AL.” Below that statement is the word “EASEMENT.” The second page of Easement 1 states, in pertinent part:

I, HELEN BROOK TAUSSIG. . . grant to HELEN OPIE BRIGHAM, formerly HELEN OPIE RYAN. . . and FRANK J. OPIE. . . as joint tenants as appurtenant to their land shown as Lots 3[-]A and 4[-]A on Land Court Plan 16194-B and represented by Certificate of Title No. 29580 issued by the Barnstable Registry District of the Land Court, with QUITCLAIM COVENANTS, the right in common with the Grantor and the owners of Lot C on Land Court Plan 8502[-]C-2 to use for beach, boating and bathing purposes that portion of said Lot C in Barnstable (Cotuit), Barnstable County, Massachusetts, shown as ‘Easement 1' on a plan entitled ‘Plan Showing Easements Over Lot C As Shown on Land Court 8502C-2 In Barnstable, Mass. (Cotuit) Prepared For: The Johns Hopkins University’ dated June 9, 1983, revised June 24, 1983, drawn by Cape Cod Survey Consultants, a copy of which is attached hereto. . . together with a right of way on foot over the drive and so much of said Lot C as is reasonably necessary to reach the same.

5. Taussig also granted to Mary T. Henderson (“Henderson”) [Note 4] on June 30, 1983 an easement (“Easement 2”), registered as Document #313963 on the Johns Hopkins Certificate of Title, which granted the right to use a different portion of the Reilly Property. Like Easement 1, the word “EASEMENT” appears on the first page, below the phrase “HELEN BROOKE TAUSSIG TO MARY T. HENDERSON.” Page two of the instrument states, in pertinent part,

I, HELEN BROOKE TAUSSIG. . . grant to MARY T. HENDERSON and those claiming by, through and under her as appurtenant to her land shown as Lot 29 on Land Court Plan 11542-W and Lot 29A on Land Court Plan 11542-X and represented by Certificate of Title No. 23094 issued by the Barnstable Registry District of the Land Court, with QUITCLAIM COVENANTS, the right in common with the Grantor and the owners of Lot C on Land Court Plan 8502[-]C-2 to use for beach, boating and bathing purposes that portion of said Lot C in Barnstable (Cotuit), Barnstable County, Massachusetts, shown as “Easement 2” on the plan entitled‘Plan Showing Easements Over Lot C As Shown on Land Court 8502C-2 In Barnstable, Mass. (Cotuit) Prepared For: The Johns Hopkins University’ dated June 9, 1983, revised June 24, 1983, drawn by Cape Cod Survey Consultants, a copy of which is attached hereto. . . together with a right of way on foot over the drive and so much of said Lot C as is reasonably necessary to reach the same.

(Emphasis added).

6. A document entitled “Plan Showing Easements Over Lot C As Shown on Land Court 8502C-2 In Barnstable, Mass. (Cotuit) Prepared For: The Johns Hopkins University” dated June 9, 1983, revised June 24, 1983, drawn by Cape Cod Survey Consultants (the “1983 Plan”) was filed with Document #313963 (Easement 2).

7. Taussig also conveyed the Reilly Property on June 30, 1983 to The Johns Hopkins University via quitclaim deed (the “Johns Hopkins Deed”) registered as Document #313964 on the Johns Hopkins Certificate of Title. Taussig reserved a life estate for herself in the same conveyance. The Johns Hopkins Deed recites:

Said premises are subject to the easements for beach, boating and bathing purposes appurtenant to Lots 3A and 4A on Land Court Plan 16194B and Lot 29 on Land Court Plan 11542-W and Lot 29A on Land Court Plan 11542-X to be recorded herewith.

On the same date, the Johns Hopkins Certificate of Title issued. Easement 1 and Easement 2 are listed on the Memoranda of Encumbrances accompanying the Johns Hopkins Certificate of Title as Documents #313962 and #313963, respectively.

8. The Opies conveyed the Plaintiff Property to Mary Ball G. Opie (“Mary Ball”) on May 30, 1984 via quitclaim deed (the “Mary Ball Deed”) registered as Document #340263 on Transfer Certificate of Title #97424 (the “Mary Ball Certificate of Title”). The Mary Ball Deed recites:

Said lots are and each of them is conveyed together with the benefit of an appurtenant easement in common with others over a portion of Lot C on Land Court Plan 8502-C-2 and a right of way to the same, all as set forth in a instrument from Helen Brooke Taussig dated June 30, 1983 recorded in the Barnstable Registry District of the Land Court as Document No. 313,962.

The Mary Ball Certificate of Title dated July 13, 1984, similarly recites that “[t]here is appurtenant to said land a right to use Lot C on plan 8502-C-2 as set forth in Document No. 313,962.”

9. Taussig passed away on May 20, 1986.

10. A Transfer Certificate of Title #572546 issued to Richard A. Reilly and Gretchen A. Reilly as tenants in common for the Reilly Property on January 12, 1993 (the “Reilly Certificate of Title”). [Note 5] Easement 1 and Easement 2 are listed on the Memoranda of Encumbrances accompanying the Reilly Certificate of Title as Documents #313962 and #313963, respectively.

11. By quitclaim deed dated February 1, 2011 and registered as Document #1159321, Andrew L. Stern and Jamie K. Stern conveyed the Plaintiff Property to Plaintiff. Exhibit A, which is page 2 of Document 1159321 containing the legal description of the land, recites that “[t]here is appurtenant to said land a right to use Lot C on plan 8502-C-2 as set forth in Document No. 313,962.” The Transfer Certificate of Title issued the same date to Plaintiff lists Easement 1 on the Memoranda of Encumbrances as Document #313962.

**********************************

I. Motions to Strike

The Reilly Defendants move to strike both Schilling Affidavits on the grounds that they are not based on Schilling’s personal knowledge, make numerous conclusory statements, state legal opinions, do not set forth facts admissible in evidence because the facts are hearsay, and do not show that Schilling is competent to testify to the matters contained therein. Plaintiff argues that the statements in the Schilling Affidavits fall under the hearsay exceptions for declarations of state of mind and for declarations of deceased persons. Plaintiff also moves to strike Coogan Affidavit 1 on similar grounds stated by the Reilly Defendants in their motions to strike the Schilling Affidavits.

The Schilling Affidavits state that Schilling practiced law at the law firm of Alger & Schilling, which is the law firm that drafted Easement 1 and Easement 2. Schilling states that Easement 1 does not contain language that would be included in a license and that it is an easement that runs with the land. He also states that Taussig requested that “our office” prepare easements that would run with the land, and that it was Schilling’s impression after conversations with his partner and Taussig that she intended to grant an easement appurtenant to the land in Easement 1. Schilling further states that the difference in language between Easement 1 and Easement 2 – the crux of the Reilly Defendants’ contentions in their Cross-Motion – is of “no significance.”

“Hearsay in an affidavit is unacceptable to defeat summary judgment.” Madsen v. Erwin, 395 Mass. 715 , 721 (1985). However, “a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it was made in good faith and upon the personal knowledge of the declarant.” G.L. c. 233 §65. Moreover, the state of mind exception to the hearsay rule applies when a statement is not being submitted for the truth of the matter asserted, but rather “only to show that the declaration was in fact made.” 20 Mass. Prac., Evidence § 801.4 (2d ed.).

“Conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment.” Madsen, 395 Mass. at 721 (quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972)). An affidavit that offers an interpretation and application of law to facts in order to reach a legal conclusion, or an opinion or conclusion on the ultimate issue to be decided, is not admissible as it treads on the judicial and fact finder functions. See Perry v. Medieros, 369 Mass. 836 , 842 (1976); Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 , 137 (2002) (“Generally, a witness may testify to facts observed by him and may not give an opinion based on those facts. Lay and expert witnesses are precluded from giving an opinion, for the most part, that involves a conclusion of law or in regard to a mixed question of fact and law.” (internal citations omitted)).

Throughout the Schilling Affidavits, Attorney Schilling makes numerous conclusory statements of law as to whether Easement 1 is an easement that runs with the land or a license. The Schilling Affidavits indicate that the law firm of Alger & Schilling prepared Easement 1 and Easement 2, but never explicitly state that Schilling prepared either document. Moreover, Attorney Schilling’s opinion regarding the scope and nature of Easement 1 is conclusory in nature and appears to be an unqualified expert opinion involving a legal conclusion or mixed question of fact and law. As a result – and without regard to whether the statements contained within the Schilling Affidavits qualifyunder an exception to the rules against hearsay evidence – the Reilly Defendants’ Motions to Strike the Schilling Affidavits are ALLOWED. [Note 6]

The Coogan Affidavits suffer from some of the same defects as the Schilling Affidavits. However, they contain hearsay recitations of the conversation between Attorneys Schilling and Coogan to which no hearsay exception applies. But more importantly, none of the affidavits contain material facts needed to resolve the issues in these summary judgment motions. [Note 7] The documents at issue speak for themselves and do not need input from Attorney Schilling nor counter-facts from Attorney Coogan. As a result, Plaintiff’s Motion to Strike Coogan Affidavit 1 is hereby ALLOWED, and this court strikes Coogan Affidavit 2 sua sponte.

II. Motions for Partial Summary Judgment

The sole issue to be adjudicated on the Motions for Partial Summary Judgment is whether Easement 1, as shown on the 1983 Plan, is an easement that runs with the land and is currently in existence, or whether Easement 1 was created solely for the benefit of the Opies and therefore terminated when the Opies conveyed the Plaintiff Property to Mary Ball a year later. Plaintiff argues that Easement 1 conveyed to the Opies an express easement appurtenant to the Plaintiff Property, which ran to the Opies’ successors in title. The Reilly Defendants argue that Easement 1 was a mere license or “temporal easement” intended only for the benefit of the Opies, which does not run to successor owners of the Plaintiff Property. For their arguments, the Reilly Defendants rely on the difference in language between Easements 1 and 2, whereby Easement 1 omitted the words “and those claiming by, through, and under” the grantees.

When the language contained within an instrument is “clear and explicit, and without ambiguity, there is not room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Westchester Assocs., Inc. v. Boston Edison Co., 47 Mass. App. Ct. 133 , 135 (1999) (quoting Panikowski v. Giroux, 272 Mass. 508 , 503 (1930)); see Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006). The language of the written instrument conveying an interest in land is the primary vehicle for ascertaining the intent of the grantor in making the conveyance. Sheftel, 44 Mass. App. Ct. at 179. However, where any ambiguity arises in the language subject to construction, “the court must determine the presumed intent of the grantor from the words used in the deeds, ‘construed when necessary in the light of the attendant circumstances.’” Hamouda, 66 Mass. App. Ct. at 25-26 (quoting Sheftel, 44 Mass. App. Ct. at 179) (“Because the deed is ambiguous, we look to attendant circumstances, which in this case are inferable from the documents and the stipulated facts.”)

A. Easement vs. License

The Reilly Defendants first contend that Easement 1 created only a license interest personal to the Opies, rather than an easement, and thus the interest Taussig granted terminated once the Opies conveyed their property. It is thus necessary, in the first instance, to distinguish easements from licenses.

An easement is an interest in land in the possession of another that entitles the owner of the easement interest to a limited use or enjoyment of the land that is not subject to the will of the possessor of the land. See, e.g., Commercial Wharf East Condominium, 407 Mass. at 133; Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 57-58 (1938). By contrast, a license merely excuses acts done by the licensee on land in possession of another that would otherwise constitute trespass. See Commercial Wharf East Condominium, 407 Mass. at 134; Baseball Publishing, 302 Mass. at 55. Thus, a license does not convey or “grant” an interest in land, [Note 8] and indeed the right given is subject to the permission of its licensor who may revoke the license or alter its scope at will, with only limited exceptions. Baseball Publishing, 302 Mass. at 56. Compare Restatement (Third) of Property (Servitudes) § 1.2 (2000) (“An easement creates a nonpossesory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”).

Although in some respects a license may resemble an easement, [Note 9] the essence of a license is the revocability thereof and control retained by the licensor – that it endures only at the will of the licensor. Additionally, an easement may be appurtenant to land or personal, whereas a license is never appurtenant to land and almost always deemed personal and non-transferrable.

A review of the nature of and unambiguous language used in Easement 1 alone makes it clear that the conveyance goes beyond a mere license. Easement 1 is a formal written instrument, registered with the Land Court. The first page of Easement 1 contains the word “EASEMENT.” The instrument labels the interest conveyed “Easement 1.” The 1983 Plan referenced by Easement 1, and recorded on the same date with Easement 2, is titled “Plan Showing Easements over Lot C.” The instrument purports to “grant” the interest, a term usually reserved for conveying interests in land. See Bruce & Ely, Law of Easements & Licenses to Land §§ 1.5(1) & 11:2 (2014). Moreover, the interest granted is stated to be “appurtenant to their land,” a term that is also usually reserved for granting easement interests that run with the land to successors. See Hamouda, 66 Mass. App. Ct. at 27-28 (citing Restatement (Third) of Property (Servitudes) § 1.5 comment a, illustration 1 (2000); Bruce & Ely, Law of Easements & Licenses to Land § 2.3 (2001)).

The Reilly Defendants place great emphasis on the fact that Easement 1 does not state expressly that the right granted benefits its holders’ “heirs, successors, or assigns” or “those claiming by, through, or under” them, or that it is granted in “perpetuity.” However, the absence of these words of succession from Easement 1 does not dictate that the interest granted is a mere license. An easement may be granted for a set duration or in perpetuity, and no “magic words” are required for its creation. [Note 10] See Bruce & Ely, Law of Easements & Licenses to Land § 1.5(3) (2014); 28 Mass. Prac., Real Estate § 8.11 (4th ed. 2004) (“[W]ords of inheritance are no longer (since 1913) required” to grant an easement. (citing G.L. c. 183 § 13 [Note 11])); see also Restatement (Third) of Property (Servitudes) § 2.2, comment d (“The old insistence on use of particular words of grant, words of inheritance, and the formula ‘and his assigns,’ and the distinctions drawn between reservations and exceptions have almost totally disappeared from modern law.”). Thus Easement 1 is not defective to create an easement, if so intended, by its failure to include these words of inheritance in the instrument.

Notably, there appears no language in Easement 1 retaining to Taussig the right to revoke, modify, or otherwise retain control of the right granted, as one would expect to see in a license. Indeed, granting the interest as “appurtenant to their land”; [Note 12] using other formal language of conveyancing such as “grant” and “with QUITCLAIM COVENANTS,” (see further discussioninfra); and formally registering the same in a written instrument with the Land Court is at least strongly at odds with an intention to retain rights to revoke or modify at will in Taussig in the form of a license.

Viewing Easement 1 alone, based on all of these references to the word “easement”; the appearance of other language ordinarily used in the conveyance of real estate by easement (“grant,” “appurtenant to,” “with QUITCLAIM COVENANTS”); and the absence of any words retaining control by Taussig in the form of a license, it is clear and explicit to this court that Taussig intended to grant an easement under Easement 1, as opposed to some other transient interest, like a license.

However, were there any doubt of Taussig’s intention (or if one considers the language of Easement 1 to be ambiguous, which I do not), considering the words of the instrument “in light of the attendant circumstances” as instructed by Hamouda, 66 Mass. App. Ct. at 25, still does not persuade me that a license, rather than an easement, was intended.

The additional documents that Taussig registered on the same date: Easement 1, Easement 2 (which included the 1983 Plan referenced by Easements 1 and 2), and the Johns Hopkins Deed, all reference Easement 1 as an “easement.” Easement 2 indicates in its description that it is bounded “NORTHEASTERLY by Easement 1,” signifying some intention of permanence in the existence of Easement 1 as a boundary. And the Johns Hopkins Deed states expressly that the “premises are subject to the easements for beach, boating and bathing purposes appurtenant to Lots 3A and 4A . . . and Lot 29 . . . and Lot 29A . . . to be recorded herewith.” Had Taussig intended to create only a license interest, revocable or modifiable at any time at her will, this “subject to” and “appurtenant to” language would be unnecessary and, indeed, misleading to Taussig’s grantee, Johns Hopkins. [Note 13]

Although Taussig registered Easement 2 on the same date as Easement 1, and Easement 2 contains the language granting the interest to Henderson and “those claiming by, through and under her” – where Easement 1 does not – that lone difference is not sufficient to conclude that what is conveyed by Easement 1 is a license. While there is some authority from jurisdictions outside of the Commonwealth that the absence of words of succession may be found to create a license rather than an easement, [Note 14] I think the better view is that the absence of such words is inconclusive – it neither signifies nor renounces the creation of one interest over the other. This is so because our statutes do not require words of inheritance to create an easement, see supra and note 8, and an easement can be either perpetual or limited in duration. Thus it is possible for an easement to be granted personally to its grantee (as in the case of an easement in gross, discussed infra in Section II.B) or appurtenant to land, but of limited duration (discussed infra in Section II.C). Yet these durational limits, where they exist, do not make an easement a license. Thus, a lack of words of succession is not determinative of whether the instrument in question grants an easement or a license. The language found in Easement 2 that is missing from Easement 1, consequently, does not cause me to doubt that the interest conveyed by Easement 1 is an easement. [Note 15]

Thus even reaching beyond the four corners of the document to consider the attendant circumstances evidencing Taussig’s intentions, I do not find that Taussig granted a license by Easement 1. I conclude that Easement 1 grants an easement. The remaining questions then are what kind of easement was granted by Easement 1 and what duration, if any, Easement 1 has or had.

B. Easement Appurtenant vs. Easement in Gross

Two types of easements are recognized in Massachusetts: 1) appurtenant easements; and 2) easements in gross, also known as personal easements. See Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996). “‘An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.’” Id. (quoting Restatement (First) of Property § 453 (1944)). On the other hand, “[a]n easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor.” Restatement (First) of Property § 454 (1944).

Certain legal consequences flow from an easement’s designation as appurtenant or in gross. For example, in the Commonwealth, when the easement is intended to be personal to its holder (in gross), it may not be assigned or transferred. See Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002) (citing Restatement (Third) of Property (Servitudes) § 1.5 (2000)). In contrast, an easement appurtenant cannot be severed from the land it benefits (the dominant tenement) or transferred separately therefrom, and the appurtenant easement is presumed to transfer with its dominant tenement, unless the transfer instrument states otherwise. Schwartzman, 41 Mass. App. Ct. at 223-24 (citing Restatement (First) of Property § 487, comments b and c); see also G.L. c. 183 § 15 (“In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.”); Zaccari v. Griffin, 62 Mass. App. Ct. 1120 , *3 (2005) (Rule 1:28 decision).

There exists a general presumption favoring appurtenant easements over easements in gross. Schwartzman, 41 Mass. App. Ct. at 223. Thus, “[a]n easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” Id. (internal quotation omitted). “Absent any language to the contrary, an easement is presumed to be appurtenant to another estate, and not personal to the grantee and it may be appurtenant to land even though the dominant and servient estates are not adjoining.” 28 Mass. Prac., Real Estate § 8.4 & ns. 1 & 2 (4th ed. 2004). “Likewise, if, when created, an easement is primarily useful to the owner of a particular piece of land, then the easement is strongly presumed to be appurtenant to that land.” Zaccari, 62 Mass. App. Ct. at *3 (Rule 1:28 decision) (citing Restatement (Third) of Property (Servitudes) § 4.5, comment d).

In Hamouda, property was conveyed to the defendant’s predecessor in title via a deed that contained the language: “Included in this conveyance as appurtenant to the above described premises is a right of way for motor vehicle travel from the garage located on said premises to Bend Street over that portion of the grantor’s adjoining land.” 61 Mass. App. Ct. at 23. The court stated, “the words ‘appurtenant to’ as used in connection with easements are, as a matter of conveyancing custom, often used to distinguish between easements in gross, which may be transferred separately from title to the dominant estate, and easements appurtenant, which run with the ownership of the land served.” Id. at 27. The court held that the phrase “appurtenant to the above-described premises” as used in the deed gave the defendant the benefit of the easement, as the easement was intended to benefit successor owners of the property and was not personal to the defendant’s predecessor in title. Id. at 27-28.

Similarly, in the case at bar, Easement 1 states that Taussig conveys a right to the Opies “as joint tenants as appurtenant to their land shown as Lots 3[-]A and 4[-]A on Land Court Plan 16194- B . . . .” (emphasis added). This language indicates that Easement 1 runs with the land and was intended to benefit both the Opies and their successors in title. That the interest created by Easement 1 benefits and attaches to the Plaintiff Property, as distinguished from the Opies as owners, is confirmed by the general presumption favoring appurtenant easements. See Schwartzman, 41 Mass. App. Ct. at 223.

Moreover it appears that the right to enjoy the use of this strip of land on the Reilly Property is primarily useful to the owner of a particular piece of neighboring property – here the Plaintiff Property – because it provides a way for the owners of the Plaintiff Property to get to Nantucket Sound over the nearby Reilly Property for “beach, boating and bathing purposes.” Thus, there are dominant tenements at issue that clearly benefit from the use of the Reilly Property to access the beach area and thereby enjoy an enhanced value. See Lipke v. Windy Gates, LLC, 20 LCR 440 , 447 (2012) (Misc. Case No. 406013) (Grossman, J.) (citing Phillips v. Rhodes, 48 Mass. (7 Met.) 322,324 (1843)).

Finally, the further intention of Taussig to convey an interest that would benefit successive owners is implied from her use of the common conveyancing phrase “with QUITCLAIM COVENANTS.” Such phrase acts to bind Taussig and her “heirs, executors, administrators and successors” to warrant and defend the Opies and their “heirs, successors and assigns forever” against certain third-party claims. See G.L. c. 183 § 17. [Note 16]

Reviewing the language within the four corners of the instrument, I find that Easement 1 is fairly construed to be an appurtenant easement benefitting the Plaintiff Property. Schwartzman, 41 Mass. App. Ct. at 223 (“An easement is presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” (internal quotation marks omitted)). I thus conclude that Easement 1 is not an easement in gross personal to the Opies.

Although I do not conclude that the language of Easement 1 is ambiguous and requires construction “in light of the attendant circumstances,” Hamouda, 66 Mass. App. Ct. at 25, I nonetheless find that such attendant circumstances, when considered, only further support construing Easement 1 as appurtenant, rather than in gross. In particular, as noted supra, the Johns Hopkins Deed recites that the Reilly Property is conveyed “subject to” the easements “appurtenant to” the Plaintiff Property as shown on the 1983 Plan. By her use of this language in the Johns Hopkins Deed, Taussig evidenced her intent that Easement 1 be appurtenant to and run with the Plaintiff Property, and provided notice of that intention to her grantee, Johns Hopkins Univeristy. Additionally, the Memoranda of Encumbrances attached to the Johns Hopkins Certificate of Title explicitly references Easement 1, with no indication that the right is personal. [Note 17] Moreover, and as discussed supra, the description of Easement 2 as bounded by Easement 1 implies a permanent boundary line in the existence of Easement 1.

The Reilly Defendants substantially rely on the existence of the language, “and those claiming by, through and under her” appearing in Easement 2, and the absence of such language in Easement 1, in asserting that Easement 1 does not run with the Plaintiff Property and instead creates an easement in gross for the benefit of the Opies alone. As discussed, supra, the language used in Easement 1 is sufficient alone to clearly and explicitly grant an easement appurtenant to the Plaintiff Property. Moreover as discussed in Section II.A, supra, the absence of language of succession from Easement 1 (where such language is not required to create an appurtenant easement anyway) that was expressed in Easement 2 does not indicate that an easement in gross rather than an easement appurtenant was intended. See also Lipke, 20 LCR at 447 (Misc. Case No. 406013) (Grossman, J.) (“Nothing in either Transfer Certificate suggests that the beach access rights conveyed to the original grantees, were to be limited to their lifetimes. Thus, the absence of words of inheritance in the granting clauses did not render the easements personal to the grantees.”)

Consequently, not only is there insufficient evidence to rebut the presumption that the easement was appurtenant to the Plaintiff Property, but the record unequivocally supports its appurtenant character. Zaccari, 62 Mass. App. Ct. at *3 (Rule 1:28 decision). As a result of the foregoing analysis, I find that Easement 1, as shown on the 1983 Plan, is an appurtenant easement that runs with the Plaintiff Property, and not an easement in gross, personal to the Opies. [Note 18]

C. Limited Duration/Lack of Succession

The Reilly Defendants’ final argument in support of their contention that Easement 1 terminated upon transfer from the Opies to Mary Ball, is that Taussig intended Easement 1 to be of limited duration or non-transferrable to successor owners of the Plaintiff Property.

An easement appurtenant may be restricted by its grantor such that its benefit does not pass to the transferee or successor of the dominant tenement. Restatement of Property § 487, comment b (1944) (“There is nothing to prevent a transferor from effectively providing that the benefit of an easement appurtenant shall not pass to the transferee of a dominant tenement. Such a provision contravenes no rule of law.”). However, the presumption in this Commonwealth is that “all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed.” G.L. c. 183 § 15. Thus, an intention to restrict the transfer of an easement to successive owners must be declared by express provision within the terms of the instrument. Schwartzman, 41 Mass. App. Ct. at 224 (“While the right of exclusive use maybe extinguished or abandoned by express provision that the benefit of the easement shall not pass to the transferee of the dominant tenement, it may not be separated from that tenement and thereby converted to an easement in gross unless permitted by the terms of the instrument which created the easement.”); see also Zaccari, 62 Mass. App. Ct. at *3 (Rule 1:28 decision) (“When a parcel of land benefitting from an appurtenant easement is transferred, the benefit of the easement is presumed to transfer as well unless the terms of the transfer instrument state otherwise.”).

Easement 1 contains no express provision within its four corners restricting its transfer to successive owners. Because an express provision is required to overcome the presumption that the appurtenant easement created by Easement 1 passes to transferees of the dominant tenement (Plaintiff Property), no resort to the accompanying documents (Easement 2, the Johns Hopkins Deed, or any of the Certificates of Title) can assist the Reilly Defendants’ argument. Thus, the absence of language of succession from Easement 1 that appears in Easement 2 has no bearing on the question and cannot, in any event, constitute an express provision within Easement 1 that the benefit of the easement shall not pass to transferees of the dominant tenement, i.e. to Plaintiff.

As a result of the foregoing, I find that Easement 1 grants an appurtenant easement that runs with the Plaintiff Property to successive owners and transferees thereof, without temporal limitation or restriction in duration. Accordingly, Plaintiff’s Motion for Partial Summary Judgment is ALLOWED and the Reilly Defendants’ Cross-Motion for Partial Summary Judgment is DENIED.

III. Attorney’s Fees

Plaintiff argues that she is entitled to attorney’s fees pursuant to G. L. c. 231, § 6F because the Reilly Defendants “failed to yield their position when confronted with the facts extant.”

G. L. c. 231, § 6F grants the court the authority to award reasonable counsel fees and other expenses to a party in an action if the court finds that the opposing party’s claims or defenses are “wholly insubstantial, frivolous and not advanced in good faith.”

The Reilly Defendants advanced good faith arguments as to why Easement 1 terminated when the Opies conveyed the Plaintiff Property, and cited to relevant case law throughout their briefs submitted to this court. The Reilly Defendants emphasized the difference in language between Easement 1 and Easement 2 to support their assertion that Easement 1 does not run with the Plaintiff Property. While this court did not accept this argument as persuasive, it cannot be characterized as frivolous. As a result, Plaintiff’s request for attorney’s fees pursuant to G. L. c. 231, § 6F is DENIED. [Note 19]

IV. Conclusion

Plaintiff’s and Defendants’ Motions to Strike Affidavits are ALLOWED. Plaintiff’s Motion for Partial Summary Judgment is ALLOWED and Defendants’ Cross-Motion for Partial Summary Judgment is DENIED. Plaintiff’s Motion for Attorney’s Fees is DENIED.

The parties shall attend a Status Conference on September 29, 2015 at 10:15 A.M. to discuss the remaining issues in this case and how this case will proceed. Judgment shall issue after the remaining issues are resolved.