The late Barbara Babcock, as Trustee of the Barbara Babcock Trust dated April 4, 1997, is the record owner of the registered land in Tisbury shown as Lot 5 on Land Court Plan 39792B. [Note 1] A copy of that plan is attached as Ex. 1. The defendant, Vineyard Assembly of God, Inc. (the Church), owns the abutting Lot 4, also registered land. See id. The Churchs property has frontage along, but no direct access to, the public street in front of it (State Road). [Note 2] Instead, it shares access to State Road with Ms. Babcock through the Road Reservation Area, owned by Ms. Babcock (see Ex. 1), over which it has deeded and registered easement rights. [Note 3] Both the Road Reservation Area and the access it provides run the entire length of the eastern (side) and southern (rear) boundaries of the Church property. See Ex. 1. At present, the Church uses the Road Reservation Area for pedestrian access at all points, and for vehicle access to and from its parking lot onto State Road (1) at a point near the road (the Front Entrance), and (2) at a point approximately two-thirds the way down the eastern side of the parking lot (the Cut- Through).
Ms. Babcock contends that the Church has no right to use the Road Reservation Area, at all, because, in her view, it has no valid easement rights. In the alternative, should the court find that an express easement exists, she contends it should be modified to include only the Front Entrance, citing M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). She also claims that a dry-well installed by the Church in the Road Reservation Area for drainage purposes is an impermissible encroachment on her property that the Church must remove. The Church disagrees with each of these contentions.
The case was tried before me, jury-waived. I also took a view. Based on the testimony and documents admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, my observations at the view, and as more fully explained below, I find and rule that the Church has a valid easement over the entirety of the Road Reservation Area in all of its locations and to the full dimensions shown on Land Court Plan 39792B (Ex. 1), that Ms. Babcock has not shown a right to have it modified under M.P.M., and that the Church may continue to maintain the dry-well in the Road Reservation Area and also any other drainage and surfacing improvements reasonably necessary for the use of the easement.
These are the facts as I find them after trial.
a. The Deeds and Plans of Record
The Babcock and Church properties are both portions of a larger parcel of registered land previously owned by R. Douglas DeBettencourt and Jayne O. DeBettencourt, shown as Lot 1 on Land Court Plan 39792A (DeBettencourt parcel). A copy of Land Court Plan 39792A is attached as Ex. 2. The DeBettencourt parcel was later divided into two lots: Lot 5 (Ms. Babcocks property) and Lot 4 (the Church property). See Ex. 1. While the majority of Lot 5 is situated behind Lot 4, Lot 5 also includes a strip of land along the eastern edge of Lot 4 with frontage on State Road, approximately 890.11 feet long and 40.01 feet wide. See id. That strip, together with its extension that runs perpendicularly along the rear of Lot 4, is shown on the Land Court Plan (Ex. 1) as the Road Reservation Area.
The DeBettencourts conveyed Lot 4 (the benefited lot) by Quitclaim Deed dated July 19, 1984, retaining ownership of Lot 5 at that time. The language of the deed to Lot 4 was as follows:
Being Lot No. 4 as shown of A Plan of Land in Tisbury, Mass., Prepared for Douglas DeBettencourt, Scale: 1 = 60, May 6, 1983, Revised May 24, 1983, Smith & Dowling, Engineers, Surveyors, Planners, State Road, Post Office Box 1087, Vineyard Haven, Mass. 02568 and noted as Land Court Plan No. 39792B filed with Certificate of Title No. 5960 at the Dukes County Registry District of the Land Court and containing 1.60+- acres of land according to said plan.
This conveyance is made together with the right to use the road shown on said plan for all purposes for which roads are used in the Town of Tisbury together with those lawfully entitled thereto.
This conveyance is made subject to and with the benefit of any and all easements and restrictions of record insofar as same are in force and applicable.
Meaning and intending and hereby conveying a portion of the same premises described in Certificate of Title No. 5960 duly registered with the Dukes County Registry District of the Land Court.
The Grantors and the Grantee, by the acceptance of this deed, and their respective successors in title, hereby agree that all future costs and expenses incurred for the upkeep and maintenance of the forty foot Road Reservation Area as it appears on the aforementioned plan shall be shared by the parties on a pro-rata cost basis. [Note 4]
Deed to Patricia Nichols dated July 19, 1984 (emphasis added). Lot 4 was subsequently conveyed to the Southern New England District of the Assemblies of God, Inc., which then deeded it to the Church in July 1991. Each deed in the chain of title from the DeBettencourts to the Church, as well as each of the corresponding registered land certificates of title, references (1) Land Court Plan No. 39792B, (2) the right to use the road shown on said plan for all purposes for which roads are used in the Town of Tisbury, (3) that the land is made subject to and with the benefit of any and all easements and restrictions of record insofar as same are in force and applicable, and (4) an agreement that the costs and expenses incurred for the upkeep and maintenance of the forty foot Road Reservation Area as it appears on the aforementioned plan shall be shared. . . .
Lot 5 (the burdened lot) was deeded out by the DeBettencourts in August 1988, subsequent to their conveyance of Lot 4. After a series of mesne conveyances, it was deeded to Barbara A. Babcock in September 1997, and subsequently, in April 2002, by her (individually) to herself as trustee of the Barbara Babcock trust. All of these deeds and their corresponding registered land certificates of title contain the following: (1) an explicit reference to Land Court Plan 39792B as describing the land conveyed (Lot 5), and (2) the statement that the land is subject to and with the benefit of any and all easements and restrictions of record insofar as same are in force and applicable.
b. The Parties and the Road Reservation Area
The Church has owned Lot 4 for nearly twenty-five years. The property is the site of (1) the Churchs house of worship, which was constructed in 1993, (2) the pastors residence, (3) a breezeway connecting the residence and the house of worship (the main church building), and (4) a large parking lot all along the eastern side. The rear of the property is currently covered by trees and shrubs.
Worship services and youth classes are held once a week on Sundays. Throughout the week, other events such as prayer sessions, Bible studies, and board meetings also take place. In addition, the church is in frequent use for special events, including weddings and funerals.
Marthas Vineyard has a sizeable year-round population, which increases many-fold in the summer. Church attendance thus fluctuates both seasonally and with the weather, holidays, and particular church events (e.g. Christmas and Easter). On a typical off-season Sunday, approximately eighty-five people attend the morning service, with that number reaching as high as 144 in the summer or at Christmas or Easter celebrations. With approximately 115 seats in the worship hall, supplemented with temporary seats when needed, the church building is thus almost at, or in excess of, its capacity.
During normal weeks, the highest number of vehicles in the church parking lot is on Sundays during worship services. The current parking configuration is insufficient to accommodate any marked increase in church attendance. To do so, it would be necessary for the Church to hold a second Sunday service, which is impractical given the limited size of the volunteer base (e.g. greeters, ushers, communion servers, organist, and choir members) upon which the Church relies to conduct services. The Church would like to expand its parking lot in the future, but cannot presently do so because of restrictions imposed by a Special Permit dated April 24, 2007 that prohibits increases in parking lot size and further building on the Churchs lot. The Church, however, is not prohibited from applying for permission to do additional work and has an open case with the Tisbury Zoning Board of Appeals regarding expansion of the parking lot, which it is optimistic will be granted. Its ability to use the full length and width of the Road Reservation Area may be critical to that application, particularly the ability to widen the current entrance and, potentially, to add internal turning lanes.
The parking lot on the Churchs property lacks direct access to State Road. [Note 5] Instead, vehicles entering and exiting the Churchs property use the Road Reservation Area on Ms. Babcocks lot to do so. Both vehicular points of access from the parking lot to the Road Reservation Area the Front Entrance and the Cut-Through are used for entry and exit. The Front Entrance is located immediately off of State Road at the top of the Road Reservation Area. The Cut-Through is located two-thirds the way down the Road Reservation Area approximately two hundred feet southeast of its intersection with State Road. While most cars going to and from the parking lot use the Front Entrance, the Cut-Through is also used regularly, particularly by cars parking at the back end of the lot.
Beyond the Cut-Through, the Road Reservation Area extends past the rear boundary of the Churchs property and wraps around the wooded area at the back of the parcel. The Road Reservation Area thus grants access to the rear of the property and is used for that purpose. Use of the Road Reservation Area is not limited to vehicles. Pedestrians also use it to reach the back of the property and to landscape the site.
Ms. Babcock acquired ownership of Lot 5 after the Church took title to Lot 4 and, as noted above, both her deed and her corresponding certificate of title (1) state that they are subject to . . . any and all easements of record . . ., and (2) specifically reference Land Court Plan 39792B, which shows the Road Reservation Area. She uses the Road Reservation Area as the sole access route to her property, a single family home, and desires to plant trees and shrubs in every space she personally does not use to enhance her privacy. She would particularly like to plant in the Cut-Through area, closest to her house. Her proposal to limit the Churchs use of the Road Reservation Area to the Front Entrance would effectively close off over ninety-five percent of its area to the Church.
If only the Front Entrance and not the Cut-Through were available to the Church, the Church would go from having two entrances and exits to one. The Church asserts, and I so find, that this would materially reduce not only the usefulness of the Road Reservation Area, but also its safety. The Front Entrance is just over fifteen feet wide, and it is difficult for two vehicles to pass through it at the same time. In addition, two rock walls on the Churchs property affect the Front Entrance: (1) one immediately to the left in a triangular shape that surrounds a well on the property, and (2) one to the right in front of the worship hall. There are a number of parking spaces beside the triangular rock wall. There is also handicapped parking in the area, which families with children use as well. Without the availability of the Cut-Through, exiting cars would have to maneuver and queue exclusively in the parking lot itself, affecting pedestrian flow and safety as those pedestrians walk to their cars.
c. Ms. Babcocks Experts Testimony
Erin Fredette, a Project Manager for McMahon Associates (a consulting firm that provides transportation engineering and planning services), testified on behalf of Ms. Babcock. In Ms. Fredettes opinion, if the Cut-Through were closed, she would not expect a significant change in the operations or safety at the intersection of State Road and the Road Reservation Area. I disagree. Her data in support of that analysis came from traffic counts on December 22, 2013 perhaps the lowest-volume season on the Vineyard. She did not collect any data regarding traffic during the summer, Christmas, or Easter to see how those volumes would affect her analysis, and it is difficult to see how they could not. She also did not study, or opine upon, the effect on pedestrian safety in the parking lot if all entries and exits were confined to the Front Entrance alone. I find that that effect would be both notable and significant.
d. The Dry-Well
The Churchs deed to Lot 4 includes a covenant that obligates the owner of that Lot to share all future costs and expenses incurred for the upkeep and maintenance of the forty foot Road Reservation Area with the owner of Lot 5. The Church thus shares in the maintenance and upkeep of the Road Reservation Area with Ms. Babcock, and has both the right and obligation to do so. See Post v. McHugh, 76 Mass. App. Ct. 200 , 206 (2010); Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981) (access easement rights include right to maintain and improve easement for that purpose). Church members have filled potholes, mowed grass, and removed objects to maintain the areas function and appearance. Ms. Babcock has also paid for certain maintenance activities and, on at least one occasion, sought a letter from the Church to support her claim for a charitable deduction for that payment.
The Road Reservation Area slopes downward from State Road and, towards its rear, is low-lying. At times, water flows down its slope, pooling on the driveway, and goes onto the Churchs property. It has also flooded in the past, causing erosion. To address this, the Church put a trench on the side of its lot and, in 2002, installed a dry-well in the Road Reservation Area itself. As a result, the drainage issues have substantially resolved.
Further relevant facts are set forth in the Analysis section below.
a. The Easement
An affirmative easement creates a nonpossessory 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. Patterson v. Paul, 448 Mass. 658 , 662 (2007) (quoting Restatement (Third) of Property (Servitudes) § 1.2 (1) (2000)). An express easement must be in writing and described with reasonable certainty. See Mason v. Albert, 243 Mass. 433 , 437 (1923). The party asserting an easement has the burden of proving its nature and extent, see Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 n.1 (2006), and that it exists on the servient estate. See Hickey v. Pathways Ass'n, 472 Mass. 735 , 753-754 (2015).
[F]or registered land to be burdened by an easement, generally the easement must be shown on the certificate of title. Id. at 754. See G. L. c. 185, § 46 (owner of registered land takes title free from all encumbrances except those noted on the certificate [of title]); G. L. c. 185, § 47 (judgment of registration . . . shall set forth . . . all particular . . . easements . . . to which the land or owners estate is subject). To satisfy this requirement, however, a certificate of title need not explicitly reference the easement. See Myers v. Salin, 13 Mass. App. Ct. 127 , 136-137 (1982); Clark v. Plauche, 21 LCR 616 , 618-619 (2013).
In Myers, the Appeals Court held that an easement burdened registered land even though the pertinent certificate of title did not explicitly reference the easement. See Myers, supra at 137. Instead, the certificate contained a general reference to the easement rights of others and also specifically referred to deeds that described the easement. See id. The court found that that was sufficient to satisfy the requirements of G. L. c. 185, §§ 46 & 47. See id.
Similarly, in Clark, the Land Court held that that a registered property was subject to an easement that was not specifically referenced in the certificate of title. See Clark, supra at 618- 619. The certificate contained a general reference to the rights of others in the property, and also referenced rights contained in a deed that described a right of way. See id. The court found the specific reference to the deed describing the right of way, in conjunction with the general reference, adequate to establish that the registered land was subject to the easement. See id.
Here, the Churchs Transfer Certificate of Title (to the benefited parcel) expressly references the right to use the road shown on [Land Court Plan No. 39792B] for all purposes for which roads are used in the Town of Tisbury, together with those lawfully entitled thereto. That plan depicts the location and dimensions of a road that is referred to as the Road Reservation Area and located on Ms. Babcocks property. These instruments clearly evidence the Churchs right to use the Road Reservation Area.
Ms. Babcocks Transfer Certificate of Title (to the servient, burdened parcel) does not explicitly reference an easement in favor of the Church with respect to the Road Reservation Area in so many words. Instead, it contains a general reference to the existence of easement rights of others, providing that the property is [s]ubject to and with the benefit of any and all easements and restrictions of record insofar as same are in force and applicable. Such a general reference, if alone and by itself, is insufficient to satisfy the general requirement that an easement must appear on the certificate of title in order to affect registered land. See Clark, supra at 618 (citing Jackson v. Knott, 418 Mass. 704 , 710 (1994)). However, Ms. Babcocks Transfer Certificate of Title expressly refers to Land Court Plan No. 39792B, which depicts the Road Reservation Area. See Ex. 1. Thus, similarly to Myers and Clark, the general reference to easements of record, combined with the explicit reference to the plan depicting the Road Reservation Area, constitutes adequate reference to the easement such that it burdens Ms. Babcocks registered property.
Even if Ms. Babcocks Transfer Certificate of Title did not expressly reference the Churchs easement, her property would still be subject to that easement. This is because there are two exceptions to the general rule that an easement must be noted on the certificate of title to burden the relevant registered land. They are:
(1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registry system; or
(2) if the purchaser has actual knowledge of a prior unregistered interest.
Jackson, supra at 711. With respect to the first exception, a purchaser is expected to review a plan referenced in the certificate of title. See id. In the event a way is shown on such a plan, the purchaser is also expected to examine the certificates of other lot owners in the subdivision to determine whether others might have an interest in the [w]ay. Id. at 712 (citing Myers, supra at 137).
Here, facts within Ms. Babcocks Transfer Certificate of Title would have prompted a reasonable purchaser to further investigate other instruments in the registry system and discover the Churchs easement interest in the Road Reservation Area. Ms. Babcocks Transfer Certificate of Title expressly refers to Land Court Plan No. 39792B, which depicts the Road Reservation Area. Ms. Babcock was thus legally required to review that plan, as well as the Churchs certificate of title the other lot owner in the subdivision to determine whether the Church had any interest in the Road Reservation Area. See Jackson, supra at 712. Such an inquiry would have placed Ms. Babcock on notice of the Churchs right to use the Road Reservation Area, which was granted by the former common owner of the two lots (the DeBettencourts) and is expressly referenced in the Churchs deed and Transfer Certificate of Title. These circumstances trigger the first Jackson exception, and, thus, Ms. Babcock took her property subject to the easement.
Having determined that the easement burdens Ms. Babcocks property, I look next to its nature and extent. In connection with that examination, courts look to the intention of the parties regarding the creation of the easement or right of way, determined from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or which they are chargeable to determine the existence and attributes of a right of way. Martin v. Simmons Properties, LLC, 467 Mass. 1 , 14 (2014) (internal citations and quotations omitted). The language establishing an easement by grant controls interpretation when it is clear and explicit, and without ambiguity. . . . Hamouda, supra at 25 (quoting Cook v. Babcock, 61 Mass. 526 , 528 (1851)). When the language is unambiguous, the terms must be construed in accordance with their ordinary and usual meanings. See World Species ListNatural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 309 (2009). Further, if an easement is stated to be for a particular purpose[,] it is limited to the purpose stated. Makepeace Bros., Inc. v. Town of Barnstable, 292 Mass. 518 , 525 (1935).
Here, the language of the easement grant is unambiguous the Church has the right to use the road shown on [Land Court Plan No. 39792B] for all purposes for which roads are used in the Town of Tisbury. . . . The plan so referenced precisely defines the location and dimensions of the Road Reservation Area by metes and bounds. Moreover, the Church is entitled to convenient passage within the easement area in a manner that is consistent with the easements intended purpose. See Martin, supra at 17.
The purpose for which the easement was created is plain and unambiguous: the Church may use the Road Reservation Area for all purposes for which roads are used in the Town of Tisbury. . . . Such purposes include ingress and egress to the Churchs property. See Flynn v. Colarusso, 22 LCR 36 , 38 (2014). Both vehicles and pedestrians travel along the Road Reservation Area for passage to and from the Churchs property. The Front Entrance and the Cut-Through are used to enter and exit the Churchs parking lot, and the rear portion of the Road Reservation Area is used to access the rear of the Churchs property, currently by foot but potentially by vehicle as well. These are consistent with the purpose of the easement as stated in the grant.
Ms. Babcock seeks to alter the dimensions of the easement over the Road Reservation Area by limiting it to the Front Entrance, citing M.P.M. Builders, supra. However, she has failed to show that this would satisfy the requirements of M.P.M.
In M.P.M., the Supreme Judicial Court adopted § 4.8 (3) of the Restatement (Third) of Property (Servitudes), which provides:
Unless expressly denied by the terms of an easement . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.
M.P.M., supra at 90 (quoting Restatement (Third) of Property (Servitudes) § 4.8 (3) (2000)). This rule is intended to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder. Id. (quoting Restatement (Third) of Property (Servitudes) § 4.8 (3) (2000) at comment f).
Ms. Babcocks proposed modification to the easement the elimination of over ninety- five percent of its area is not reasonable, would significantly lessen the utility of the easement to the Church, and frustrate the purpose for which the easement was created.
Ms. Babcock attempted to refute this through the testimony of her expert, Ms. Fredette, who opined that eliminating the Cut-Through and limiting the Churchs access to the Front Entrance would not have a significant impact upon traffic operations or safety at the intersection of State Road and the Road Reservation Area. As previously noted, I disagree. The fact-finder can discredit an experts testimony, even if there is no contrary expert testimony, Daniels v. Bd. of Registration in Med., 418 Mass. 380 , 392 (1994), and here Ms. Fredettes testimony is flawed in at least three respects. First, the traffic counts on which she based her analysis were from the lowest volume period on the Vineyard (December). Second, she failed properly to consider the elimination of queue space in the Road Reservation Area that makes entry and exit to the parking lot quicker and safer with the full length and width of the Road Reservation Area available. [Note 6] Third, she failed to consider the impact eliminating the Cut-Through would have upon traffic operations and safety within the parking lot since the rear Cut-Through exit allows cars to use the rear part of the Road Reservation Area to queue rather than crowd the parking lot itself. Moreover, if the driveway on the easement area is widened (the total width of the easement is forty feet), it would also create a queue area, separate and apart from the parking lot, for wedding or funeral vehicles to line up in, without interfering with parking lot flow. I thus find her testimony not persuasive.
In addition, eliminating everything but the Front Entrance would force the Church to reconfigure its parking lot, taking away parking spaces it critically needs. This would be especially problematic should the Church expand its house of worship as it so intends. The Church would also lose the benefit of having two access points to and from its parking lot.
For these reasons, Ms. Babcock has not satisfied her burden of proving that her proposed modifications to the dimensions of the easement satisfy the M.P.M. factors. To the contrary, it is evident that her proposal would unduly interfere with the Churchs legitimate interests as the easement holder. Therefore, the full dimensions of the Churchs easement both length and width shall remain as depicted in Land Court Plan No. 39792B.
b. The Dry-Well
Ms. Babcock also contends that the Church should remove the dry-well it installed on the Road Reservation Area. Again, I disagree.
A dominant estate has the right make reasonable repairs and improvements to its easement, so long as they are done with due regard to the rights and interests of others. See Guillet v. Livernois, 297 Mass. 337 , 340 (1937). This is especially true where the easement would be impassable or materially less useful without the improvement. See id. See also Post, supra; Glenn, supra.
The Church had the dry-well installed on the Road Reservation Area nearly fifteen years ago to address flooding and erosion of the easement issues that have substantially been resolved due to its installation. There is no indication the dry-well has burdened Ms. Babcock or caused any significant interference to her. Indeed, by eliminating flooding, it has benefited her since she uses the same roadway to get to and from her house. The dry-well is thus a permissible improvement to the easement and the Church is under no obligation to remove it.
For the foregoing reasons, I find and rule that the Church has a valid easement over Ms. Babcocks property in the location and to the full dimensions depicted as the Road Reservation Area on Land Court Plan 39792B, and that the Church is not obligated to remove the dry-well. All other claims for relief by both parties are DISMISSED, with prejudice.
Judgment shall enter accordingly.
[Note 1] Ms. Babcock died after the trial of this matter, and Marthas Vineyard Savings Bank, her successor trustee, was then substituted as the plaintiff in this action. For consistency and ease of reference, the plaintiff will be referred to as Ms. Babcock throughout this decision.
[Note 2] The Land Court Plan erroneously labels it State Highway.
[Note 3] This shared access, created by the former common owner of the two lots, is a reflection of the nature of State Roadthe main east-west public highway across the northern part of Marthas Vineyard, to which direct driveways are minimized as much as possible.
[Note 4] Forty foot refers to the width of the Road Reservation Area. See Ex. 1.
[Note 5] See n. 3, supra.
[Note 6] With the full length and width of the easement available, cars turning off State Road into the parking lot need not bunch up on State Road while waiting for the Front Entrance to clear. Instead, they can swing to the left of the cars going into the Front Entrance and then drive down the Road Reservation Area to the Cut-Through, entering the parking lot that way.