This case involves a dispute between the parties as to whether the defendants, Maurice and Cynthia FitzMaurice, have a right appurtenant to the title to their property in Chatham to pass over a nearby undeveloped seaside lot (hereinafter, “marsh lot”), which is covered by marshes and is subject to conservation restrictions, in order to access the beach on the other side of that lot. The plaintiffs, Paul and Gayle McAdams, are the record owners of the marsh lot, which is located on Linnell Lane in North Chatham. [Note 1]
They live at 23 Linnell Lane, which is located across Linnell Lane from the marsh lot. The defendants live next door, and they contend that they have the same right to pass over the marsh lot as the plaintiffs have, which was created pursuant to a set of restrictive covenants granted by former owners of the marsh lot (and the parties’ respective properties) to the Chatham Conversation Foundation, Inc. (hereinafter, “Foundation”) Those covenants created certain conservation restrictions over the marsh lot, but they also reserved for the grantors a right to pass and repass over the marsh lot for the benefit of the grantors’ property, which was later subdivided to become what is today the parties’ properties. The plaintiffs claim that this passage right is appurtenant only to their property, whereas the defendants contend that both properties are benefitted by it.
The plaintiffs filed this action seeking (1) a declaration as to the parties’ respective rights (or lack thereof) to pass over the marsh lot, (2) injunctive relief prohibiting the defendants from crossing the marsh lot, and (3) money damages arising from alleged trespasses committed by the defendants in doing so. In response, the defendants asserted their rights of passage and filed their own trespass counterclaim, contending that the plaintiffs committed trespass by entering the defendants’ property in an area near Linnel Lane where the two properties’ driveways meet and coincide. In response to this counterclaim, the plaintiffs claim to have acquired prescriptive rights in the portion of the defendants’ property where the plaintiffs’ driveway runs. Both sides have now cross-moved for summary judgment on all counts of the complaint and on the counterclaim. For the reasons set forth below, I DENY both motions.
Ownership of the Subject Properties
Alice D. Johnson, Robert L. Ramsay, and Richard E. Rodman were the former owners of three adjacent parcels of land located on Linnell Lane in Chatham, one of which today includes the parties’ residential properties. Each of these three parcels consisted of a residential lot (on the north side of Linnell Lane) and a respective seaside “marsh” lot on Chatham Harbor (across from the residential lot on the south side of Linnel Lane), with each pair of lots separated by Linnell Lane. [Note 2] The residential lots were each improved with houses, while the marsh lots were left undeveloped, containing coastal dunes and salt marshes. Of these three lots, only Mr. Ramsay’s property is relevant to this case. [Note 3]
In June of 1969, Ms. Johnson, Mr. Ramsay, and Mr. Rodman granted restrictive covenants to the Chatham Conservation Foundation, Inc. over their respective marsh lots “for the purpose of preserving the premises as nearly as may be in the natural state in which they now are . . . .” Pls.’ V. Compl. at Ex. A. [Note 4] The restrictive covenants themselves expressly prohibited the grantors from conducting certain activities, including erecting buildings and/or structures, moving or excavating soil or rocks, constructing roads, etc. See id. However, the grantors expressly retained and reaffirmed, among other rights, “the right of the grantors and their respective successors in title to the premises to pass and repass over the premises, or their right to regulate or control access by the public to the premises.” Id.
At some point between 1970 and 1975, Ms. Ramsay apparently passed away and Mr. Ramsay remarried. Later, by deed dated August 29, 1975, Mr. Ramsay, as surviving joint owner, conveyed his entire parcel on Linnell Lane (including both his marsh lot and his residential lot) to himself and his new wife, Fannie Ramsay, as tenants by the entirety. See Registry at Book 2230, Page 346. The Ramsays subsequently subdivided their residential lot into two sub-lots: a front lot (with most of the frontage on Linnel Lane) and a rear “pork chop” lot (which had access to Linnel Lane via a thin strip of land along the western side of the front lot. These sub-lots are labeled, respectively, as lots “A” and “B” on a subdivision plan approved by the Chatham Planning Board on April 29, 1975. See Registry at Plan Book 294, Plan 98. Parcel A (the front lot) is today owned by the plaintiffs, and Parcel B (the rear lot) is today owned by the defendants. [Note 5]
On June 10, 1976, Mr. and Ms. Ramsay conveyed Parcel A (the front lot) along with Lot 1A (the marsh lot) to the plaintiffs. See Registry at Book 2352, Page 9. Pursuant to that deed, the Ramsays retained ownership of Parcel B (the rear lot) and also reserved “as appurtenant to the remaining land of the grantor, a right to use for beach and recreational purposes, that portion of Lot 1A . . . including the right of ingress and egress across Lot 1A to said beach area where same would cause the least amount of damage.” Id.
In November of 1976, the Ramsays conveyed Parcel B (the rear lot) to Parker and Judith Llewellyn (see Registry at Book 2431, Page 12), together with “a right to use for beach and recreational purposes that potion of Lot 1A . . . including the right of ingress and egress across Lot 1A . . . .” Id. After mesne conveyances [Note 6] between 1976 and 2010, by deed dated December 4, 2010 (see Registry at Book 25123, Page 295), the defendants came to own Parcel B “subject to and together with the benefit of any and all rights, rights of way, easements . . . if any there be and insofar as the same are now in full force and effect including all appurtenant rights, inclusive of beach access and use as set forth in a deed recorded at Book 2431, Page 12 [i.e., the 1976 deed to the Llewellyns].” Id. Thus we come to the current ownership of Lot 1A (the marsh lot), Parcel A (the front lot, owned by the plaintiffs), and Parcel B (the rear lot, owned by the defendants).
In the late 1990s, due to tidal changes that made passage over the existing walkways on the three marsh lots difficult, the owners of those lots decided to construct elevated walkways (replacing existing wooden plank walkways) to enable passage. In response, in 1998 the Foundation sued all three landowners, claiming that elevated walkways constituted “structures” and were prohibited under the restrictive covenants. The subsequent litigation (Chatham Conservation Found. v. Gould, Case No. 98 MISC 251380 (MVG)) [Note 7] was eventually settled pursuant to a 2005 amendment to the 1969-1970 restrictive covenants, which permitted each of the three marsh lot owners (including the plaintiffs) to construct a single elevated walkway providing passage over their respective marsh lots. See Registry at Book 21272, Page 93. In accordance with this settlement, the plaintiffs built an elevated walkway across the marsh lot later in 2005. [Note 8]
The Marsh Lot Walkway
Notably, the defendants’ predecessors in title were not parties to the 2005 amendment, nor were their rights (if any) explicitly addressed therein. Nonetheless, after the defendants purchased their lot in 2010, they began using the walkway built by the plaintiffs. [Note 9] This apparently was met with some resistance from the plaintiffs, including (as the defendants allege) blocking the walkway with kayaks, intentionally installing the wooden decking later each year, and threatening to contact the police to report a trespass. The defendants describe this alleged conduct as a “campaign” of “continuous harassment and attempted intimidation”, and allege a number of confrontations between the plaintiffs and the defendants (and their children), including one unfortunate incident that allegedly took place in July of 2014, in which Ms. McAdams allegedly “taunted the children from her front lawn”. Defs.’ Am. V. Countercl. at 12-15.
The Parties’ Driveway Dispute
Separate from the parties’ dispute over the walkway -- though probably not unrelated -- the parties also dispute their respective rights to use the common driveway connecting from Linnell Lane to both their properties. The defendants’ house accesses Linnell Lane via a driveway running across the “pork chop” portion of their lot. The plaintiffs’ driveway curves westwardly away from their house and connects with and overlaps the defendants’ driveway a few feet north of Linnel Lane. This is an issue because where it does so is actually on the defendants’ property. [Note 10]
The defendants argue that the plaintiffs’ use of the portion of the driveway located on the defendants’ property constitutes a trespass, and they seek declaratory and injunctive relief to that effect. The plaintiffs disagree, and they allege that they have used the portion of their driveway located on the defendants’ property for over twenty years (since 1976), and that their use has been uninterrupted, open, and notorious. On that basis, they claim to have prescriptive rights to continue to use that section of their driveway, and they seek declaratory and injunctive relief establishing and protecting those claimed rights. As discussed below, however, aside from conclusory statements from both sides, little hard evidence is in the record to substantiate either side’s claims.
The plaintiffs brought this action in 2014 seeking a declaration of the parties’ rights with respect to the walkway and the marsh lot, an injunction preventing the defendants from using the walkway and accessing the marsh lot, and money damages for alleged trespasses on the walkway. The defendants, in their answer, sought the opposite declaratory relief, injunctive relief forbidding the plaintiffs from blocking access across the walkway, and (on a theory of trespass) additional declaratory and injunctive relief preventing the plaintiffs from using the portion of the driveway on the defendants’ lot.
The parties have now cross-moved for summary judgment on all counts of the complaint and counterclaims. The plaintiffs contend that, as a matter of law, only they have a right to pass and repass over the marsh lot. Notably, the plaintiffs acknowledge that language in their deed purports to reserve for the grantors (the Ramsays) a right to pass over the marsh lot, and that this right does appear to have been explicitly conveyed to the defendants through the Lot B chain of title. [Note 11] However, the plaintiffs contend that this reservation of rights was ineffective, since, they claim, that the Ramsays had no power to retain a right to pass and repass across the marsh lot, nor any right to later convey it to others. The defendants disagree, claiming that the Ramsays’ retention of the right to pass and repass was valid, as were the subsequent conveyances of that right.
The other issue briefed by the parties is the dispute over the driveway. Here, the defendants contend that the plaintiffs’ use of the portion of the driveway located on Lot B amounts to a trespass. The plaintiffs dispute this, claiming that the parties’ driveways have been in this configuration since 1976, and accordingly that they have acquired prescriptive easement rights to use the portion of the driveway on Lot B.
The standard of review on summary judgment motions is well-established. “Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012) (internal quotation omitted); see also Mass. R. Civ. P. 56 (c). Summary judgment is not appropriate where there are genuine issues of material fact in dispute, i.e., “when the evidence is such that a reasonable [fact-finder] could return a verdict for the nonmoving party.” Dennis v. Kaskel, 79 Mass. App. Ct. 736 , 740-741 (2011) (internal quotations omitted). In assessing the factual record, the court draws “all logically permissible inferences” from the facts in the record in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Bos., 411 Mass. 202 , 203 (1991). However, “[t]he burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991).
The Parties’ Marsh Lot Rights
As noted above, this is not the first instance in which the courts have interpreted the particular restrictive covenants at issue here. See generally Gould, 8 LCR 416 . The plaintiffs were parties to that case, although they did not join in the eventual appeal that overturned the Land Court’s decision. See generally Farber, 56 Mass. App. Ct. 584 . In Farber, the Appeals Court concluded that the “right to pass and repass” was not an exception to the restriction or a reservation of rights, but rather a recognition of the continuing right of the landowner to pass over his or her property. Id. at 590 n.8. The Appeals Court continued, noting that, “[a]lthough not expressed as an easement, the right . . . to pass and repass [set forth in the 1969-1970 restrictive covenants] is in the nature of an easement, and the cases involving easements are instructive.” Id. at 589. Upon considering those cases, the court concluded that there was “no reason, in the circumstances of this case, to conclude that a landowner should be in a worse position than would be an easement holder in the same circumstance.” Id.
The defendants were not parties in Gould or its appeal in Farber, so those decisions do not have a direct preclusive effect on the issue of how the defendants’ rights should be analyzed in this case. Moreover, as the decision of a fellow trial court judge, not an appellate decision, Gould is only persuasive authority in this Session. Farber, however, is controlling authority, and its reasoning -- that the reserved right to pass and repass is akin to an easement -- is sound. It would therefore be appropriate to follow suit and analyze the defendants’ rights to pass and repass across the marsh lot (if any) along the lines of an easement.
The meaning of rights granted pursuant to a conveyance of property rights is “derived from the presumed intent of the grantor, [which] is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Patterson v. Paul, 448 Mass. 658 , 665 (2007) (internal citation omitted); see also Farber, 56 Mass. App. Ct. at 589-590 (“A restriction, like a deed, ‘is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in light of the material circumstances and pertinent facts known to them at the time it was executed.’” (quoting Walker v. Sanderson, 348 Mass. 409 , 412 (1965))). Furthermore, no provision of an instrument of conveyance should be read in isolation, “because all parts of the instrument should be read consistently, if possible, to ascertain the intent of the draftsman.” Brooks v. Capitol Truck Leasing, Inc., 13 Mass. App. Ct. 471 , 476 (1982) (citing Lindsay v. Bd. of App. of Milton, 362 Mass. 126 , 131 (1972)).
In the case of an easement by grant, the language establishing that easement controls interpretation so long as it is “clear and explicit, and without ambiguity.” Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (quoting Cook v. Babcock, 61 Mass. 526 , 528 (1851)). However, if the grant’s language is ambiguous, the attendant circumstances existing at the time of its creation may be used to elucidate the grantor’s intent. See Lowell v. Piper, 31 Mass. App. Ct. 225 , 230 (1991); see also Suffolk Constr. Co. v. Ill. Union Ins. Co., 80 Mass. App. Ct. 90 , 94 (2011) (“A term is ambiguous only if it is susceptible of more than one meaning and if reasonably intelligent persons would differ over the proper meaning.”); cf. Hickey v. Pathways Ass’n, Inc., No. SJC-11603, slip op. at 16-17, 20-22 (Mass. Sept. 22, 2015) (discussing the importance of the grantor’s intent and the lengths to which subsequent purchasers must go in order to fulfil a duty of due diligence, even in the case of registered land). Whether an ambiguity exists is a question of law for the court. See Lowell, 31 Mass. App. Ct. at 230. However, even if the language of a restrictive covenant is not ambiguous, restrictions on land must still be construed “with a view of avoiding results which are absurd, or inconsistent with what was meant by the parties to or the framers of the instrument.” Kline v. Shearwater Ass’n, 63 Mass. App. Ct. 825 , 831 (2005) (quoting Maddalena v. Brand, 7 Mass. App. Ct. 466 , 469 (1979)).
The parties do not dispute that the right to pass and repass across the mash lot, as established in the 1969-1970 restrictive covenants, is an appurtenant right running with the land. They do dispute, however, whose land it benefits.
This issue ultimately turns on what the term “the premises” in the restrictive covenants means. As noted above, the restrictive covenants specifically provide that “[n]othing in this instrument shall be construed to affect the right of the grantors and their respective successors in title to the premises to pass and repass over the premises . . . .” See Registry at Book 1444, Page 399 (emphasis added). The term “premises” is defined as “Parcel One . . . , Parcel Two . . . and Parcel Three . . . , all as shown on [the accompanying] plan entitled ‘Plan of land in Chatham, Mass. made for the Chatham Conservation Foundation . . . .’” See id.; see also Registry at Plan Book 230, Plan 109. That plan clearly identifies Parcels One, Two, and Three as the three marsh lots noted above. See id.
Based upon this language, the plaintiffs contend that the term “the premises” was intended to refer only to the marsh lots on Linnell Lane, and not to any of the corresponding residential lots (which the grantors also owned) -- and therefore, by implication, not to the defendants’ property. The plaintiffs argue that this language means that the right to pass and repass across the marsh lot was therefore reserved only for the owners of the marsh lots (including themselves), and not to the defendants, who do not now and have never owned any of the marsh lots.
However, given the facts and circumstances of this case (as well as the language of the covenants themselves), the matter is not as simple as the plaintiffs claim. Most notably, the covenants do not uniformly discuss the grantors’ rights with respect to successors in title “to the premises”. For instance, pursuant to another provision of the covenants, “[t]he grantors hereby expressly reserve[d] to themselves and their respective successors in title [Note 12] the right to maintain pipes and drains from any part or parts of the grantors’ remaining land over or through the premises . . . .” See Registry at Book 1444, Page 399 (emphasis added). Similarly, the grantors reserved to themselves and (apparently all) successors in title “the right to top, trim, cut or remove trees and other vegetation on the premises to preserve the view from any part or parts of the remaining land of the grantors.” Id. On the face of these provisions, the limiting language “to the premises” is obviously absent. It would therefore appear that the defendants have (at least) a right to maintain pipes and to trim trees on the marsh lot. If so, it would make little sense that they would not have a corresponding right to pass over that lot. In other words, how can the defendants maintain pipes or trim trees on the marsh lot without setting foot on it? [Note 13]
What does this mean? The simplest answer might be that this was a simple omission on the part of the drafter of the restrictive covenants. Perhaps it was a scrivener’s error. But even if it were explainable in either of those ways, there is nothing to indicate which way the error should cut. Perhaps the parties, during negotiation, agreed to omit “to the premises” and simply overlooked its presence in the language pertaining to the reserved right of passage. [Note 14] On the record before me, it is not possible to tell.
Given that the language of the restrictive covenants is ambiguous, it is clear that my task is not merely to home in on a singular term in the restrictive covenants, as the plaintiffs urge me to do, but rather to view the covenants as a whole, in order to determine the parties’ intent. As the SJC has recently emphasized, the parties’ intent with respect to easement rights is of critical importance, and ascertaining such intent requires consideration of attendant circumstances. See Hickey, supra, slip op. at 16-17, 20-22 and cases cited therein. Such an inquiry implicates new issues of fact, which may be in dispute. More likely, however, the evidence that would bear on such questions is simply not in the record.
The attendant circumstances and facts known to the grantors of the restrictive covenants are generally limited to the time when the covenants were executed. See Farber, 56 Mass. App. Ct. at 590; but see Hickey, supra, slip op. at 20-31 (discussing subsequent acts as indicative of prior intent). Relevant factual issues may include whether or not the dwelling on the defendants’ property existed at the time the restrictive covenants were executed. If a house existed at that time, it would stand to reason that the occupants of that house would be interested in ensuring beach access just as much as the plaintiffs would.
It may also be relevant that, as the defendants allege, the restrictive covenants represented a form document, which were not drafted specially for this application. Evidence on this point may shed light on the grantors’ intent, especially as to the perplexing inconsistency with regard to the use of “to the premises”.
Further, it may also be relevant to consider the conduct of the defendants’ predecessors in title, the Llewellyns. On that issue, there appears to be a dispute of fact as to whether the plaintiffs, in the prior Land Court action discussed above, relied on an affidavit executed by Ms. Llewellyn, in which she claimed to have an appurtenant right to pass over the marsh lot. This goes not only to the question of the grantors’ intent, but also, if in fact the plaintiffs previously adopted the position taken by Ms. Llewellyn, brings in the possibility of judicial estoppel. See Otis v. Arbella Mut. Ins. Co., 443 Mass. 634 , 639- 640 (2005). The parties dispute whether the plaintiffs in fact did adopt this position and whether they relied on Ms. Llewellyn’s affidavit in advancing their own interests.
Finally, the plaintiffs contend that allowing the defendants to pass over the marsh lot would overburden the right of passage and would be contrary to the goals of the restrictive covenant. This is a legitimate concern that should be considered. Yet, there is little evidence in the record regarding the history of access across the marsh lot. Thus, at this juncture, it cannot be determined whether that use would materially change if the defendants were found to have the right to pass and repass (and, if so, how), nor whether the plaintiffs’ rights to do so (or the rights of the Foundation) would be adversely affected.
Each of these questions presents a material issue of fact that is either explicitly in dispute between the parties or a gap in the factual record. In either event, it will be necessary to hear further evidence in order to determine the scope of the rights reserved to the grantors of the restrictive covenants. See Phelps v. MacIntyre, 397 Mass. 459 , 461 (1986) (the court has discretion to deny summary judgment if “a particular issue or an entire action should not be foreclosed at that early stage”). This question therefore cannot be resolved on summary judgment.
The Parties’ Rights in the Common Driveway
I turn next to the question of whether, as the defendants argue, the plaintiffs’ use of the portion of their driveway that crosses the defendants’ property constitutes a trespass. The plaintiffs dispute this claim, and contend that their use of this section of the driveway has established a prescriptive easement over the portion of the defendants’ land where the driveway is located.
As noted above, the plaintiffs claim to have used their driveway in its current configuration since 1976, and that such use has been uninterrupted, open, and notorious. Yet, aside from conclusory statements to that effect, the plaintiffs have provided little in the way of evidentiary proof of their conduct. Likewise, the defendants have not provided any evidence either contradicting the plaintiffs’ prescriptive claims, or substantiating their own trespass claims. The record before me simply does not conclusively establish the type or extent of the use the plaintiffs have allegedly made of that portion of the driveway, nor as to the period of time over which that alleged use has taken place. I also have no definitive evidence before me to indicate how the defendants responded to this alleged use, if in fact they did. I therefore must deny summary judgment on this issue to both parties.
For the foregoing reasons, I conclude that summary judgment on any of the questions presented in this case would not be appropriate at this stage. Further evidence as to these issues (viz., the intent of the grantors of the above-discussed restrictive covenants, the attendant circumstances accompanying those covenants, and the plaintiffs’ use of the portion of their driveway located on the defendants’ property) needs to be heard in order to determine if additional considerations not brought to this court’s attention will be relevant to a final adjudication of these questions. I therefore exercise my discretion to deny summary judgment in order to let the factual record develop further. See Phelps, 397 Mass. at 461. Accordingly, the parties’ cross-motions for summary judgment are hereby both DENIED.
A status conference is scheduled for November 5, 2015 at 3:00 p.m. to discuss whether further discovery in this case will be needed, and to set dates for a Pre-Trial Conference and Trial.
[Note 1] The marsh lot is labeled as Lot “1A” on a plan entitled “Subdivision Plan in Chatham, Mass., made for Robert L. Ramsay, Scale 1” = 40’, July 1963, Nickerson & Berger, Engineers, Orleans, Mass.”, which was recorded in the Barnstable County Registry of Deeds (hereinafter, “Registry”) at Plan Book 180, Plan 147. An annotated copy of this plan is annexed hereto as “Exhibit A”.
[Note 2] The properties in question are all depicted (at least in part) on the above-noted 1963 plan. The Ramsays’ residential lot (which today forms the parties’ residential properties) is labeled as “Lot 1”, and their marsh lot (the marsh lot, now owned by the plaintiffs) as “Lot 1A”. Ms. Rodman’s residential and marsh lots are labeled, respectively, as “Lot 2” and “Lot 2A”. Ms. Johnson’s residential and marsh lots are only partially depicted. They are shown as abutting the Ramsays’ property to the west, and are unlabeled. See Registry at Plan Book 180, Plan 147.
[Note 3] For Mr. Ramsay’s title, see Registry at Book 1001, Page 311.
[Note 4] The restrictive covenants were recorded in the Registry on July 29, 1969 at Book 1444, Page 399, re-recorded at Book 2652, Page 178, and indexed as a public restriction at Book 3990, Page 23. In connection with the restrictive covenants, the Foundation prepared and recorded a plan of the properties subject to the covenant. See Registry at Plan Book 230, Plan 109.
A few days before signing the restrictive covenant pertaining to his property, Mr. Ramsay had conveyed his property to himself and his then-spouse (Genevieve Ramsay, since deceased) as tenants by the entirety. See Registry at Book 1441, Page 962. Despite this fact, Ms. Ramsay was not a signatory to Mr. Ramsay’s original restrictive covenant. To correct this, in January of 1970, Mr. and Ms. Ramsay executed a supplemental restrictive covenant binding both owners. This covenant was recorded in the Registry at Book 1460, Page 529, re-recorded at Book 3707, Page 206, and indexed as a public restriction at Book 3771, Page 311.
[Note 5] At the time the restrictive covenants were granted, each of the three residential lots (see 1963 plan) contained at least one dwelling. The 1975 subdivision plan shows an apparently new dwelling on Lot B (the defendants’ property), which is not shown on the earlier 1963 plan. It is presently unknown (and cannot be determined at this time based upon the summary judgment record) when that house was built, and whether it existed prior to or after the date of the covenants.
[Note 6] See recorded deeds in the Barnstable Registry at Book 7485, Page 268 (Llewellyn to Llewellyn), Book 17237, Page 17 (Llewellyn to Blackwood and Mozdean), Book 19766, 173 (Blackwood and Mozdean to Poydar et ux), and Book 25123, Page 295 (Poydar et ux to FitzMaurice et ux). The court takes judicial notice of the first three of these recorded deeds, as they were not submitted by the parties as part of the summary judgment record. Each of them contains similar language as the 1976 Llewellyn deed regarding the use of Lot 1A.
[Note 7] In that case, Judge Green, then of the Land Court, held that construction of the elevated walkways violated the restrictive covenants. See generally Chatham Conservation Found. v. Gould, 8 LCR 416 (2000). That holding was appealed to the Appeals Court, which reversed, holding that “the right to make reasonable repairs or improve the passageway is incidental to the landowner's right to pass and repass”, and that this right need not have been “explicitly reserved” in the restrictive covenant. Chatham Conservation
Found., Inc. v. Farber, 56 Mass. App. Ct. 584 , 590 (2002). The case was remanded back to the Land Court for consideration of “[w]hether the proposed elevated walkway falls within the prohibition on structures or is a reasonable repair or improvement incidental to the right to pass and repass . . . , which must be considered in light of the meaning of the conveyance and the intent of the parties.” Id.
[Note 8] The elevated walkway is located in the same location as the former wooden plank pathway. It consists of removable wooden deck sections supported by permanent footings installed in the marsh. Pursuant to the amended restrictive covenant, the wooden deck sections must be “removed and stored off- site during the off-season.” See Registry at Book 21272, Page 94.
[Note 9] The defendants allege that the plaintiffs permitted the defendants’ predecessors in title, the Poydars, to use the walkway without objection, and that the plaintiffs also permitted the Mozdeans, who owned Lot B prior to the Poydars’ ownership of it, to use the former wooden pathway.
[Note 10] The Ramsays’ 1975 subdivision plan (discussed above) -- presumably depicting times of more amicable relations between the owners of Lots A and B -- shows one common driveway accessing both properties. On that plan, the common driveway starts at the point where the “pork chop” portion of Lot B connects to Linnell Lane, curves to the east to access the house on Lot A (avoiding what appears to be some kind of outbuilding farther north in the “pork chop” portion of Lot B), before curving back to the west to connect to Lot B again (approximately at the northerly end of the Lot B “pork chop” area) and leading to a circle drive in front of the house on Lot B. See Registry at Plan Book 294, Page 98.
At some point after 1975, the driveways were reconfigured. Apparently the outbuilding in the Lot B “pork chop” area was razed, and a driveway accessing only the Lot B house was laid along the entire length of the “pork chop”. The common driveway (which connected to the Lot A house on its western side) was apparently removed, and a new driveway accessing the south side of the plaintiffs’ house was laid. This driveway runs to the same point of intersection that the former common driveway accessed Linnell Lane. See Defs.’ Am. V. Countercl. at 9 (aerial photographic depiction of the current layout of the parties’ driveways).
[Note 11] The summary judgment record was incomplete on this point. Whereas the defendants, in their moving briefs, stated that all deeds conveying the defendants’ property subsequent to the Ramsays’ 1975 subdivision of their parcel explicitly included a right of passage over the marsh lot, they did not actually provide the complete chain of title demonstrating this. As noted above, the court has supplemented the record by taking judicial notice of three missing deeds in the chain of title. By doing so, the court has confirmed that the defendants’ claim is accurate.
[Note 12] The defendants argue that the term “successors in title” may also itself be ambiguous, contending that the restrictive covenants could potentially have been intended to apply not only to ownership interests, but also possibly to non-ownership interests, such as mere possessory claims. They claim that construction of this phrase may depend on the circumstances surrounding the covenant’s execution.
[Note 13] Perhaps the right to pass and repass permitted only “through” traffic. No evidence on that point was presented and I make no such finding.
[Note 14] However this glaring lack of consistency in the restrictive covenants as to the rights reserved for the grantors is to be explained, it should also be noted that the covenants reserved the right of passage both to “the grantors” and to “[the grantors’] respective successors in title to the premises”. As noted above, the grantors not only owned the marsh lots, they also owned the corresponding residential lots. As such, they would have “successors in title” both to their marsh lots and to their residential lots. Therefore, even if the plaintiffs are correct, and “the premises” refers only to the marsh lots, this language does not necessarily rule out the possibility that the grantors’ successors in title to their residential lots could also obtain those rights through the grantors. If the grantors (the Ramsays) had those rights (which no one disputes), then they had the right to convey them (which, the parties agree, they did do, at least with respect to the plaintiffs). While sound policy would counsel specifying that those rights can be passed along to successors, heirs, assigns, and the like, nothing requires those succession rights to have been specifically named in the document itself in order for them to exist. E.g., Marshall v. Francis, 332 Mass. 282 , 288 (1955) (deed conveying grantor’s entire interest conveyed all and only what grantor owned, nothing more, nothing less).