SARAH A. KENT v. ROMA III, LTD., ROMA VENTURE I, INC., and ROMA VENTURE II, INC.

I. INTRODUCTION

In her Complaint for declaratory and injunctive relief, Plaintiff Sarah A. Kent ("Kent") seeks to have Defendants Roma III, Ltd., Roma Venture I, Inc., and Roma Venture II, Inc. (collectively, "Roma") enjoined from overloading certain access and utility easements located over her property to serve a new dwelling located partly on after-acquired land to which those easements are not appurtenant. She also seeks to have certain of the easements extinguished, and to have Roma's purported conveyance of the easements to itself for the benefit of the after- acquired land declared null and void.

Kent is the owner of property identified as 133 Granite Street, Rockport, Massachusetts (the "Kent Property"), which is burdened by the subject easements. Roma owns an adjacent lot at 129 Granite Street in Rockport, which Roma created in 2012 by combining two formerly separate lots: one with a former street address of 133R Granite Street, Rockport (the "133R Lot") and one which originally had the 129 Granite Street address (the "Original 129 Granite Street Lot") (together, "the Combined Lot"). Roma acquired the Original 129 Granite Street Lot in 2011, and acquired the 133R Lot in 2012. The 133R Lot was comprised of two parcels, Lot B and Lot C'. The subject easements were granted by Kent's predecessors in title for the benefit of Lot B. In the 2012 deed conveying the Combined Lot to itself, however, Roma purported to convey a single parcel labeled on a survey plan as "Combined parcels, Map 16, Lots 56 and 57," together with the rights to use the right of way and utility easements and all other easements, rights and benefits Roma held on the granted premises. The referenced survey plan does not depict former Lot B. Roma has subsequently obtained permits for, and commenced construction of, a large new single-family dwelling on the Combined Lot, such that it straddles the former property line between the Lot B portion of the 133R Lot and the Original 129 Granite Street Lot. In doing so, Roma claims that the access and utility easements which had been granted by Kent's predecessors in title as appurtenant to the former Lot B, may now be used to serve the Combined Lot.

On June 4, 2014, Kent moved for summary judgment, seeking declaratory and injunctive relief to prevent Roma from expanding the use of the access and utility easements appurtenant to former Lot B to serve the new dwelling on the Combined Lot. Relying on Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-79 (1965), Kent claims that Roma's use of the easements to benefit the Combined Lot constitutes a per se overloading because Roma is, or will be, using the easements to benefit after-acquired land in contravention of settled Massachusetts Law.

On July 21, 2014, Roma filed an opposition to Kent's Motion for Summary Judgment, [Note 1] arguing that the per se rule of Murphy elevates form over substance, and that the court should instead recognize an exception when the facts demonstrate that use of a particular easement to benefit after-acquired land would not unfairly increase the burden on the easement. Roma argues that the facts here fall within just such an exception, because the easements at issue will be used to benefit a new single-family dwelling used only seasonally, whereas the easements were originally used to serve two single-family dwellings on the 133R Lot, one of which had been used year-round.

On October 31, 2014, Kent filed a reply brief to Roma's opposition. The court took the matter under advisement following a hearing on November 17, 2014. [Note 2]

On September 15, 2015, while this matter was pending, Kent moved for a preliminary injunction to halt Roma's increased use of the disputed easements in connection with Roma's on- going construction activities on the Combined Lot. The court held a hearing on Plaintiff's Application for Preliminary Injunction on October 20, 2015 and, on October 23, 2015, issued its Order Granting Preliminary Injunction in favor of Kent.

Shortly after issuing the Preliminary Injunction, the court learned that the Massachusetts Supreme Judicial Court ("SJC") had taken Direct Appellate Review in Taylor v. Martha's Vineyard Land Bank Comm'n, SJC-11963 ? a case specifically addressing the primary issue to be decided in Kent's pending Motion for Summary Judgment: whether Massachusetts should revisit and alter the rule stated in Murphy, 348 Mass. at 678-79, and henceforth permit the owner of a dominant estate to use an appurtenant easement for the benefit of an after-acquired parcel that is contiguous to the dominant estate, where doing so would not increase the burden on the servient estate. On November 19, 2015, after consulting with the Parties, the court issued an Order of Stay in the instant case, pending the SJC's decision in the Taylor case. On October 11, 2016, the SJC issued its decision reaffirming the Murphy rule, and declining to find an exception to that rule. See Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 (2016). Now, on the basis of the undisputed material facts, and in light of Taylor, this court finds that Kent is entitled to declaratory and injunctive relief under Count I and Count II.

II. UNDISPUTED MATERIAL FACTS

Based upon the pleadings, the parties' statements of material facts, and the admissible material submitted in the summary judgment record, I find that the following material facts are undisputed.

Title History

1. Kent is the fee simple owner of the property located at 133 Granite Street, Rockport, Massachusetts (the "Kent Property"). [Note 3]

2. Prior to 1950, the Kent Property was part of a larger property owned by Althea and H. Chester Story (the "Story Property"). The Story Property was bordered to the west by Granite Street, a public way; to the east by the Atlantic Ocean; and to the south by a property at 129 Granite Street (the "Original 129 Granite Street Lot").

3. In 1950, the Storys carved out a new lot on the southwest corner of their property. The new lot was shown as "Lot B" on a "Plan of Land in Pigeon Cove," dated February 4, 1950 ("Plan of Story Property"). The new Lot B bordered the remaining Story Property to the west and north, the Atlantic Ocean to the east, and the Original 129 Granite Lot to the south.

4. The Plan of Story Property depicts a small structure in the southwest corner of Lot B. It also depicts a "15' right of way" running from the northerly boundary of Lot B, to a "10' right of way." The 10' right of way runs over the Story Property, easterly from Granite Street to its intersection with the 15' right of way, and then turns northerly to land of Esther Story.

5. As created, Lot B was landlocked. By deed dated April 18, 1950, Althea D. Story conveyed Lot B to Agnes S. Simpson, together with an appurtenant easement "to use the 15-foot right of way running northerly from the granted premises to the 10-foot right of way, and the right to use the 10-foot right of way running westerly to Granite Street, all as shown on [the Plan of Story Property] for all the usual purposes of a public way in common with others who may be entitled to use the same" (the "Access Easement"). [Note 4]

6. By deed dated February 13, 1974, Sheila S. Griffin, formerly Sheila A. Story and a successor in interest to Simpson, conveyed Lot B together with the Access Easement to Alan J. Kace and Francine Kace.

7. By instrument dated February 13, 1974, Esther H. Story and Rachel Jelmsberg, granted a further easement to Alan J. Kace and Francine Kace, the then-owners of Lot B, running easterly and then southerly along and under the same 15' and 10' right of ways shown on the Plan of Story Property, "for the purpose of maintaining or replacing an existing deep water year round water line, or the installation and maintenance of an underground power line, sewage line, gas, telephone or other utility services, if required" (the "Utility Easement"). [Note 5] The recited consideration was the grantees' agreement to maintain, and replace if necessary, the referenced year round water line at their sole expense, and to restore the premises immediately afterwards.

8. Also on February 13, 1974, in an instrument entitled "Addendum," [Note 6] the grantors of the Utility Easement, Esther H. Story and Rachel Jelmsberg,

agree[d]…to grant and convey an additional easement for the same purposes [as the Utility Easement], across the south-easterly corner of the land of the Grantors….This agreement, however, is expressly contingent upon the necessity and convenience of the Grantees, their heirs and assigns, in installing permanent year round service incidental to the construction of a new winterized dwelling. [Note 7]

9. On January 31, 1975, Esther H. Story and Rachel M. Jelmsberg conveyed to the Kaces an additional strip of land consisting of approximately 184 square feet. [Note 8] The strip is shown as Lot C' on a plan recorded as Plan No. 45, in Plan Book 1975. Lot B and C' were combined as the 133R Lot.

10. Prior to 1974, there was a seasonal cottage on Lot B. At some point during or after 1974, the former owners of Lot B constructed a new, winterized single-family dwelling.

11. The Story Property was further reduced in size between 1975 and 1978, by conveyances to third parties of two other parcels, until it became the size and shape of the 133 Granite Street lot that was ultimately conveyed to Kent in 2009, i.e., the Kent Property.

12. The Kent Property is shown as Parcel E on a plan of land of Esther Story and Rachel Jelmsberg, dated April 20, 1978, recorded as Plan No. 19, in Plan Book 149. As shown, Parcel E borders on the 133R Lot to the south. It is 52,657 square feet in area, and has 75 feet of frontage on Granite Street.

13. The July 1, 2009 deed into Kent from Cynthia Mallette and Benton Story, Trustees of Chester Point Realty Trust, [Note 9] is expressly subject to the Access Easement, [Note 10] the Utility Easement, and the Addendum.

14. On December 9, 2011, Roma III Ltd. acquired the Original 129 Granite Street Lot with the buildings thereon from Martha Jo Fleming f/k/a Martha Jo Fritz, subject to, and with the benefit of a parking easement on an adjacent lot at 131 Granite Street. [Note 11] The deed into Roma III Ltd. does not purport to convey said lot with the benefit of any easements over the Kent Property.

15. On October 23, 2012, Roma III Ltd. acquired Lot B and Lot C' from Francine Kace. [Note 12] Lot B was conveyed with the right to use the 15-foot right of way and the 10-foot right of way, as shown on the Plan of Story Property, "for all the usual purposes of a public way in common with others who may be entitled to use same."

16. On December 31, 2012, Roma III Ltd. conveyed to itself, by quitclaim deed, a combined parcel of land labeled as "'Combined parcels, Map 16, lots 56 and 57'" as shown on a plan of land in Rockport, MA Prepared by American Land Survey Associates, Inc., … November 18, 2011 (Rev 12/18/12) Prepared for Roma III, LTD" (hereinafter, the "Combined Lot"). [Note 13]

17. The deed for the Combined Lot recites:

This deed is prepared and recorded to reflect a combination and merger of the parcels described on the above plan as "129 Granite Street, Map 16, Lot 57" and "133[R] Granite Street, Map 15, Lot 56" and on Rockport Assessor's Map 16 Lots 56 and 57. Total combined area according to above-referenced Plan, approximately 70,321.

18. The deed for the Combined Lot purports to convey the same premises conveyed to Roma III, Ltd. by the December 9, 2011 deed of Mary Jo Fleming and the October 23, 2012 deed of Francine Kace.

19. In the deed for the Combined Lot, Roma purports to convey the entire Combined Lot to itself,

[t]ogether also with the rights to use the 15 foot right of way and 10' wide right of way & utility easement and all other easements, rights and benefits held by the said grantor on the granted premises. [Emphasis added.]

20. The Combined Lot retains the 129 Granite Street address of the Original 129 Granite Street Lot. The Combined Lot has approximately 80 feet of frontage along Granite Street, which was the Original 129 Granite Street Lot frontage.

The Site Development

21. In March 2013, Roma submitted a site plan review application to the Rockport Planning Board ("the Board") proposing the redevelopment of the Combined Lot with an approximately 10,800 square foot single-family dwelling in lieu of the existing dwellings on the Original 129 Granite Street Lot and Former 133R Lot. The site plan review application was revised through July, 2013.

22. On August 1, 2013, the Board issued its decision approving Roma's 2013 Application for Site Plan Review. The approved 2013 site plan depicts a new, 10,800+ square foot single family dwelling structure straddling the former boundary line between the Original 129 Granite Street Lot and the former Lot B, with approximately fifty percent of the structure's footprint located on each of these former lots. The approved 2013 site plan evidences Roma's intention to remove a portion of an historic stone wall that monumented the boundary line between the Original 129 Granite Street Lot and the former Lot B.

23. The approved 2013 site plan showed a looped driveway to serve the proposed dwelling. The looped driveway was depicted as extending from the Combined Lot's frontage on Granite Street to the Kent Property, and thence continuing over the Access Easement on the Kent Property to meet Granite Street again.

24. On May 2, 2014, Roma submitted to the Board a proposed modification of its approved 2013 site plan, eliminating the looped driveway and depicting, instead, two separate driveway accesses into the Combined Lot - one driveway accessing directly through the Combined Lot's Granite Street frontage and one driveway accessing the Combined Lot from Granite Street via the Access Easement over the Kent Property. Each of the two driveways would terminate at Roma's new dwelling, but would not directly connect to one another.

25. Roma has proceeded with construction of the new dwelling structure on the Combined Lot, notwithstanding the instant litigation, and has already constructed the driveway through the Combined Lot's Granite Street frontage. That driveway is not currently connected to the Access Easement. Roma's avowed intentions are to use the new dwelling as a family vacation residence, with primary access from Granite Street via the driveway through the Combined Lot's frontage.

III. DISCUSSION

It is the well-established rule in Massachusetts that, absent the express consent of the owner of the servient estate, the use of an appurtenant easement to benefit property located beyond the dominant estate (often referred to as "after-acquired property") constitutes an overloading of that easement. Taylor, 475 Mass. at 686 (quoting Murphy, 348 Mass. at 678-79 (1965)); see also Southwick v. Planning Board of Plymouth, 65 Mass. App. Ct. 315 , 318 (2005) ("'[A] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.'"); McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). In moving for summary judgment that the Access Easement and Utility Easement granted for the benefit of Lot B may not now be used to service a new dwelling on the Combined Lot, Kent relies on this so-called Murphy rule in arguing that such use would constitute an impermissible overloading.

The material facts are not in dispute. They plainly establish that the Access Easement and the Utility Easement are appurtenant only to the Lot B portion of the 133R Lot, granted by Kent's predecessors in title to benefit that once land-locked parcel when and after it was separated from the Story Property and developed. There are no facts in the summary judgment record to suggest, and Roma does not claim, that the Original 129 Granite Street Lot was ever part of Lot B or was otherwise benefitted by either of the subject Easements. Rather, in opposing Kent's Motion for Summary Judgment, Roma contends that the facts here bring the case within an "exception" to the Murphy rule.

Roma argues that the long-standing Murphy rule relative to after-acquired property is not an inflexible one, and that strict application of the rule would improperly "elevate form over substance" where, as here, the undisputed facts demonstrate that the subject easements would service only one dwelling instead of the two dwellings previously located on former Lot B, and that their use for the Combined Lot would not result in an increased use or burden on the Kent Property. The notion of such an exception was expressly rejected by the SJC, however, when it confirmed that the Murphy rule "is a bright-line 'rule [meant to] avoid[ ] otherwise difficult litigation over the question whether increased use unreasonably increases the burden on the servient estate,' and, consequently, applies 'even if no additional use of the easement or burden on the servient estate would ensue.'" Taylor, 475 Mass. at 686 (quoting Restatement (Third) of Property: Servitudes § 4.11, comment b (2000)) (alterations in original).

In Taylor, the SJC rejected the Martha's Vineyard Land Bank Commission's argument that the Court should adopt a "flexible," fact-based inquiry that would consider whether use of an easement to serve an adjacent parcel would place additional burden on the servient estate, and, if so, whether such additional use would unfairly burden the servient estate in a manner beyond the scope of that intended in the original easement grant. Id. at 686-87. In doing so, the SJC recognized the several negative consequences of using a fact-based approach: it "would come with significant costs," it may introduce uncertainty in land ownership, "it would require a longer process of litigation…, would lead to a less predictable outcome, and might not be affordable to owners of small servient parcels who are litigating against defendants with the financial means to acquire and develop multiple parcels of land." Id. at 688-89. In contrast, the SJC characterized the bright-line rule articulated in Murphy as one which provides owners of servient property with certainty regarding their possessory rights, and found the benefits of this certainty to "outweigh the perceived advantages of a more flexible rule." Id. at 690-91. [Note 14]

Accordingly, in light of the SJC's recent reaffirmation of the bright-line Murphy rule, I find that Kent is entitled to a declaratory judgment in her favor under Count I, declaring that use of either the Access Easement or the Utility Easement to benefit the Original 129 Granite Street Lot portion of the Combined Lot would impermissibly overload those easements as a matter of law. [Note 15], [Note 16]

I further find that Kent is entitled to the entry of a permanent injunction under Count II to remedy and/or prevent such overloading. See id., at 687 n.13. Although the Restatement (Third) of Property § 4.11, comment b, recognizes that in "exceptional situations" a court may exercise discretion to award monetary relief rather than an injunction, Roma has pointed to no such exceptional circumstances justifying a departure from the ordinary remedy in this case. Moreover, it is noteworthy that any hardship and inconvenience to Roma that might result from the entry of a permanent injunction is of Roma's own making. Roma voluntarily and unilaterally combined the 133R Lot with the Original 129 Granite Street Lot and, with full knowledge of the Plaintiff's claims, commenced construction of a substantial, new dwelling straddling the former boundary between the Original 12 Granite Street Lot and Lot B, with a plan to service that new dwelling via the Access Easement and the Utility Easement. In these circumstances, it is simply not practical to attempt to isolate use of the subject Easements to serve only the portion of the Combined Lot which was once Lot B. [Note 17]

Notably, a permanent injunction would not leave the Combined Lot without access to a public way or an ability to connect to public utility lines in that public way, since the Combined Lot is directly accessible via its own Granite Street frontage. Finally, there is nothing in the Murphy rule that prevents Roma from seeking to expand its ability to use either or both of the subject Easements by negotiating with Kent or a successor owner. [Note 18] See Taylor, 475 Mass. at 690-91.

IV. CONCLUSION

For the reasons stated, I find that Kent is entitled to summary judgment on her claims for declaratory and injunctive relief. Judgment to enter accordingly.