Introduction
These parties own lots in a development on Webster Lake in Webster, all created by and shown on a 1924 plan that established the lots and the private ways on which the lots bound. Webster Ventures, LLC (Webster Ventures) owns lots on both sides of one of the ways, Lakeview Road, at the northern edge of the development. Webster Ventures seeks a declaration that none of the defendants have any rights to use Lakeview Road where it runs among the Webster Ventures lots, especially not to use it for access over the neighboring Indian Ranch property. On this motion for summary judgment, the court finds that the moving defendants do have easements by estoppel and by implication to use Lakeview Road for its entire length, including to the edge of the land shown on the plan, but do not have the right to use the way to access the abutting Indian Ranch land.
Procedural History
The plaintiff, Webster Ventures, LLC (Webster Ventures) filed its complaint on August 20, 2015. The Answer of Town of Webster was filed on September 30, 2015. The Answer of Defendant, Mortgage Electronic Registration Systems, Inc. and PennyMac Services, LLC to Plaintiff's Complaint to Quiet title and PennyMac Loan Services, LLC's Motion to Intervene as Defendant were filed on October 5, 2015. The Answer of Defendants Sharon A. McCormick, Joseph J. Woodman, III, Barbara J. Woodman, Lee J. Parker, Stephen P. Magnuson, Mary A. Magnuson, Linda C. Chambless, Trustee of the Lakeview Road Irrevocable Trust, Cyrilla Sroka, and Faith D. Rubin was filed on October 6, 2015. Answer of Defendant Mortgage Electronic Registration Systems, Inc. to the Complaint to Quiet Title and Answer of Nationstar Mortgage, LLC were filed on October 6, 2015. A case management conference was also held on October 6, 2015, where the court allowed PennyMac Loan's Services, LLC's Motion to Intervene as Defendant. A further case management conference was held on November 3, 2015, at which the court allowed Plaintiff's Motion to Amend Complaint.
On November 12, 2015, Webster Ventures filed its Amended Complaint. The Amended Complaint names as defendants Herbert J. Dumore and Rose Dumore, Sharon A. McCormick, Gail C. Brochu, Linda Jeneski, Mohamed Jaber, Frederick W. Cronin, Annette T. Criasia, Suzanne J. Vallee, Joseph J. Woodman, III and Barbara J. Woodman, Lee J. Parker, Stephen P. Magnuson and Mary A. Magnuson, Linda C. Chambless, Trustee of the Lakeview Road Irrevocable Trust, Cyrilla Sroka, Faith D. Rubin, Henry E. Hopkins and Lori J. Hopkins, Chad R. Stawiecki, Trustee of the Robert Stawiecki Irrevocable Trust, Jeremy T. Stawiecki, Trustee of the Robert Stawiecki Irrevocable Trust, Ray A. Cull and Shelley Solomon Cull, Emanuel J. Leo and Linda J. Leo, J. Terence Sullivan and Nancy Sullivan, Mark H. Brooks and Linda A. Croteau-Brooks, Adam Stawiecki, Mortgage Electronic Registration Systems, Inc., Ally Bank Corporation f/k/a GMAC Bank, Bank of America, N.A., The Cadle Company, Assignee of Federal Deposit Insurance Corporation as receiver of Home National Bank of Milford, Commonwealth National Bank, Easthampton Savings Bank, Milford Federal Savings and Loan Association, Nationstar Mortgage LLC, People's Savings Bank, Portfolio Recovery Associates, LLC, Ross Mortgage Company, Inc., Santander Bank, N.A., Secretary, United States Department of Housing and Urban Development, Unibank for Savings, Union Capital Mortgage Business Trust, Washington Mutual Bank FA, Webster First Federal Credit Union, T.D. Bank NA, and Town of Webster.
The Answer to First Amended Complaint of Defendants Sharon A. McCormick, Joseph J. Woodman, III, Barbara J. Woodman, Lee J. Parker, Stephen P. Magnuson, Mary A. Magnuson, Linda C. Chambless, Cyrilla Sroka, and Faith D. Rubin was filed on November 18, 2015. Answer of Defendant Nationstar Mortgage, LLC to First Amended Complaint was filed on November 23, 2015. Mortgage Electronic Registration Systems, Inc.'s Answer to First Amended Complaint was filed on November 24, 2015. Wells Fargo Bank, N.A., as Trustee for WAMU Mortgage Pass-Through Certificates Series 2006-PR1 Trust filed their Answer to Plaintiff's First Amended Complaint on December 2, 2015. Answer of Party-In-Interest, Mortgage Electronic Registration Systems, Inc. and PennyMac Loan Services, LLC to the Plaintiff's First Amended Complaint to Quiet Title was filed on December 4, 2015. On December 9, 2015, a Statement of Undisputed Facts & Issues Concerning Possible Motions for Summary Judgment (SOF) was filed. Defendant Washington Mutual Bank FA's Answers to Plaintiff Webster Ventures' Amended Complaint was filed on December 21, 2015. Answer of Party-In-Interest, Easthampton Savings Bank, to Plaintiff's First Amended Complaint to Quiet Title was filed on January 6, 2016.
A Stipulation for Judgment and Dismissal of Mortgage Electronic Registration Systems, Inc. was filed on January 25, 2016. On February 16, 2016, Request for Default pursuant to Mass. R. Civ. P. 55(a) on certain defendants was filed. On February 19, 2016, Defendants Herbert J. Dumore, Rose Dumore, Linda Jeneski, Jaber Mohamed, Frederick W. Cronin, Annette T. Criasia, Suzanne J. Vallee, Ray A. Cull, Shelley Solomon Cull, J. T. Sullivan, Nancy Sullivan, Mark H. Brooks, Linda A. Croteau-Brooks, Adam Stawiecki, Bank of America, N.A., The Cadle Company, Assignee of Federal Deposit Insurance Corporation as receiver of Home National Bank of Milford, Commonwealth National Bank, Milford Federal Savings and Loan Association, People's Savings Bank, Portfolio Recovery Associates, LLC, Ross Mortgage Company, Inc., Secretary, United States Department of Housing and Urban Development, Unibank for Savings, Webster First Federal Credit Union, and TD Bank, NA were defaulted pursuant to Mass. R. Civ. P. 55(a).
On March 9, 2016, Sharon McCormick, Joseph and Barbara Woodman, Stephen and Mary Magnuson, Linda Chambless, Cyrilla Sroka, and Faith Rubin (Lakeview Road Defendants) filed their Motion for Summary Judgment and Memorandum in Support of Defendant's Motion for Summary Judgment. On April 6, 2016, Webster Ventures filed Plaintiff's Opposition to Defendant's Motion for Summary Judgment. A Stipulation of Dismissal of Party-In-Interest, Mortgage Electronic Registration Systems, Inc. and PennyMac Loan Services, LLC was filed on April 14, 2016. On April 15, 2016, the Lakeview Road Defendants filed Defendant's Reply in Support of Motion for Summary Judgment. On April 19, 2016, a hearing on the Motion for Summary Judgment was held and the motion was taken under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "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 College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
Undisputed Facts
The following facts are undisputed or deemed admitted for the purpose of summary judgment:
1. The properties at issue are shown on a plan of land entitled "Map No. 1, La Vue Du Lac, Purdy & Becker, Webster, Mass." dated May 1924 (1924 Plan), which was recorded with the Worcester Registry of Deeds (registry) in Plan Book 42 as Plan 38 on June 2, 1924, attached as Exhibit A. The 1924 Plan shows a series of lots and ways on a parcel in Webster, Massachusetts along Webster Lake. SOF, ¶¶ 1-2, 16, Exhs. 1, 5.
2. Title to all of the lots created by the 1924 Plan derives from Kelsey D. Purdy (Purdy), who owned all of the land in the La Vue Du Lac subdivision (Subdivision) when the 1924 Plan was recorded. SOF, ¶ 3.
3. Purdy conveyed his interest in the Subdivision (along with other property) to Killdeer Properties, Inc. (Killdeer Properties) by deed dated September 25, 1928, and recorded with the registry at Book 2479, Page 165. SOF, ¶ 4, Exh. 2.
4. Plaintiff Webster Ventures presently owns the lots numbered 24, 25, 26, 39, 40, 41, 42, and 43 as shown on the 1924 Plan. SOF, ¶ 5, Exh. 1.
5. Webster Ventures' chain of title for the lots conveyed according to the 1924 Plan traces to a deed from Killdeer Properties. SOF, ¶ 6.
6. Each of the lots of Webster Ventures is described in the original deed from Killdeer Properties as bounded by Lakeview Road. SOF, ¶ 8, Exh. 3.
7. Exhibit 3 is a representative deed from Killdeer Properties to a predecessor in title of Webster Ventures, namely, a deed which conveyed Lot 24 (now owned by Webster Ventures) to Donald Farquhar, dated May 28, 1945, and recorded with the registry at Book 2961, Page 309. SOF, ¶ 7, Exh. 3.
8. One or more of defendants Sharon McCormick, Joseph and Barbara Woodman, Stephen and Mary Magnuson, Linda Chambless, Cyrilla Sroka, Lee J. Parker, and Faith Rubin presently own the parcels designated by lot numbers 15, 16, 17, 18, 19, 20, 21, 22, 23, 35, 37, 38, and 51 on the 1924 Plan. SOF, ¶ 9, Exh. 1.
9. Each of the lots of the Lakeview Road Defendants was conveyed according to the 1924 Plan and traces to a deed from Killdeer Properties. SOF, ¶ 10.
10. Each of the lots of the Lakeview Road Defendants is described in the original deed from Killdeer Properties as bounded by Lakeview Road. SOF, ¶ 12, Exhs. 2-4.
11. Exhibit 4 is a representative deed from Killdeer Properties to a predecessor in title of one of the Lakeview Road Defendants, namely, a deed which conveyed Lot 16 (now owned by Faith Rubin, of the Lakeview Road Defendants) to Frances Maciejewski dated July 25, 1944, and recorded with the registry at Book 2941, Page 510. SOF, ¶ 11, Exh. 4.
12. Lakeview Road is actually in existence as an unpaved way. SOF, ¶ 13.
13. The Town of Webster holds an express perpetual utility easement over a portion of the real property which is the subject of the Complaint pursuant to an Order of Taking under G.L. c. 39, §§ 14 and 39B, G.L. c. 83, §1, and G.L. c. 79, which was recorded on April 8, 1994. SOF, ¶ 14.
14. Webster Ventures owns a tract of land that is immediately north of lots 26 and 43 of the 1924 Plan (Indian Ranch Property). The Indian Ranch Property includes a trailer park and recreational facilities. SOF, ¶ 15.
15. When Killdeer Properties originally conveyed the lots now owned by Webster Ventures and the Lakeview Road Defendants, it also owned the Indian Ranch Property. The deed from Purdy to Killdeer Properties dated September 25, 1928, and recorded with the registry at Book 2479, Page 165, included the Indian Ranch Property. SOF, ¶ 17, Exh. 2.
16. There is presently a gate at the northerly end of Lakeview Road as shown on the 1924 Plan (Gate). The location of the Gate corresponds approximately to the property line between lots 26 and 43 of the 1924 Plan and the Indian Ranch Property which borders the Subdivision to the north. SOF, ¶ 18, Exh. 1.
17. Beyond the Gate, to the north of the property line between lots 26 and 43, there is an unpaved road through the trailer park portion of Indian Ranch Property (Unpaved Road) that ultimately connects to Gore Road (Route 16) in Webster. SOF, ¶ 19.
18. When the Gate is open, it is possible to travel from the northerly end of Lakeview Road through the Gate over the Unpaved Road through the trailer park out to Route 16. SOF,
¶ 20.
19. The Gate has sometimes been left open when the recreational portion of the Indian Ranch Property is closed for the season. SOF, ¶ 21.
20. During the winter, the Town of Webster customarily plows the entire length of Lakeview Road as shown on the 1924 Plan. SOF, ¶ 22.
21. During the winter, Webster Ventures customarily plows the Unpaved Road through the trailer park portion of the Indian Ranch Property and also the portion of Lakeview Road that provides access from the north to lots 24, 25, 26, 39, 40, 41, 42, and 43 in the Subdivision. SOF, ¶ 23.
22. Residents of the Subdivision have often been allowed to use the Unpaved Road through the trailer park for access to Route 16 during snowstorms and winter weather. SOF, ¶ 24.
Discussion
Based on these undisputed facts, the Lakeview Road Defendants have moved for summary judgment. The parties agree, as they must, that there is no express easement to use Lakeview Road granted in the deeds. SOF, ¶¶ 8, 12, Exhs. 2-4. The Lakeview Road Defendants seek summary judgment that they have an easement by estoppel, an implied easement, or an easement by common scheme to use both the entire length of Lakeview Road as shown on the 1924 Plan and the Unpaved Road to access the Indian Ranch Property. Each form of easement is discussed in turn.
A. Easement by Estoppel
Massachusetts recognizes two forms of easement by estoppel. Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-644 (2004); Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). The first form of easement by estoppel arises when land is conveyed according to a recorded plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under this category, when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor and those claiming under the grantor are "estopped to deny the existence of the street for the entire distance as shown on the plan." Id. In the second category, an easement by estoppel is created when land bounded by a street or land bounded on or by the side line of a street is conveyed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949). In this instance, the grantor or those claiming under the grantor are "estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) . . . embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Casella, 325 Mass. at 89; see Estes, 61 Mass. App. Ct. at 643. In both categories, "the rights of grantees or their successors in title against their grantors and their successors in title" are at issue. Patel, 27 Mass. App. Ct. at 482. "It is well settled that an easement created by estoppel, under either set of circumstances, estops the grantors and their successors in title from denying the existence of an easement." Waldron v. Tofino Assocs., Inc., 20 LCR 480 , 485 (2012), citing Patel, 27 Mass. App. Ct. at 482.
The Lakeview Road Defendants seek to establish an easement by estoppel to use the entire length of Lakeview Road as shown on the 1924 Plan. All of the property that later became Webster Ventures' and the Lakeview Road Defendants' lots was owned by Purdy in 1924. Purdy created these lots through the 1924 Plan, and then conveyed all of the lots to Killdeer Properties in 1928. The representative deeds presented by the parties each make reference to the 1924 Plan and describe the lots as being bounded by Lakeview Road. At the time the representative deed to Lot 16 to the predecessor of the Lakeview Road Defendants, Frances Maciejewski, was recorded on July 25, 1944, title to the now Webster Venture lots was still held by Killdeer Properties. Webster Ventures' predecessor in interest, Donald Farquhar, subsequently took title to Lot 24 on May 28, 1945. Therefore, the conveyance of interests of the Lakeview Road Defendants predates the conveyance of the interests of Webster Ventures. Killdeer Properties would have intended to create an easement over the entire Lakeview Road, otherwise access to their remaining lots would have been limited and reduced their marketability. Webster Ventures, as a successor to the grantor, is estopped from denying the existence of Lakeview Road for the entire distance as shown on the 1924 Plan. See Goldstein, 317 Mass. at 755. The undisputed evidence supports the finding that the Lakeview Road Defendants' easement by estoppel embraces the entire length of the way, as it is clearly indicated and prescribed in the 1924 Plan. See Casella, 325 Mass. at 89; Estes, 61 Mass. App. Ct. at 643.
The Lakeview Road Defendants also seek to establish an easement by estoppel to use the Unpaved Road, the portion of Lakeview Road that extends onto Indian Ranch. The Lakeview Road Defendants cannot rely on either a recorded plan or deed to establish an easement to use the Unpaved Way or any other way over the Indian Ranch Property. The 1924 Plan shows Lakeview Road extending to the approximate property line between Lots 26 and 43, where it dead-ends. The 1924 Plan does not show Lakeview Road as extending north onto the Indian Ranch Property towards Route 16. No evidence was submitted that the parties intended to grant an easement beyond where Lakeview Road ends on the 1924 Plan. As such, an easement by estoppel does not extend to ways not shown on a plan. Moore v. LaPorte, 18 LCR 191 , 195-196 (2010); Murphy, 348 Mass. at 677-678; Goldstein, 317 Mass. at 755. Accordingly, the undisputed evidence is that the Lakeview Road Defendants cannot claim an easement by estoppel past the northerly end of Lakeview Road as shown on the 1924 Plan, over the Unpaved Road.
B. Implied Easement
Alternatively, the Lakeview Road Defendants claim an implied easement over Lakeview Road and the Unpaved Road. An implied easement arises when no easement appears in the record of a conveyance of land under single ownership, but "there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created." Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 102 , 104 (1933). Thus, an implied easement "must be found in a presumed intention of the parties, to be gathered 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 with which they are chargeable." Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (194); see Reagan v. Brissey, 446 Mass. 452 , 458 (2006); Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 657 (2005). "[A] single circumstance may be so compelling as to require the finding of an intent to create an easement." Mt. Holyoke, 284 Mass. at 104.
Prior use which is open and obvious and consistent with the claimed easement is evidence of an intent to create an easement. Mt. Holyoke, 284 Mass. at 108; Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 630 (1990); Puner v. Sierputoski, 21 LCR 367 , 371 (2013); Black v. Klaetke, 20 LCR 120 , 124 (2012). Implied easements "have been recognized when land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part." Zotos, 63 Mass. App. Ct. at 656-657, quoting Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985). The easement need not be of absolute or physical necessity, just of reasonable necessity. Mt. Holyoke, 284 Mass. at 105. "[If] during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication." Cummings v. Franco, 335 Mass. 639 , 642-44 (1957), quoting Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953) (finding easements for lights, the maintenance of electric fixtures and the supply of water and electricity were reasonably necessary); Overlock v. Leary, 19 LCR 262 , 266 (2011) (noting safety concerns made the use of an avenue reasonably necessary).
Subsequent use of the land may also be evidence of an intent to create an easement. Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417 , 423 (1922); Boudreau, 29 Mass. App. Ct. at 632. "Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed 'as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.'" Bacon, 241 Mass. at 423; Boudreau, 29 Mass. App. Ct. at 632-633 (subsequent actions should not be unilateral and removed in time). Only conduct that is logically connected to the original conveyance should be considered to reflect the intent of the grantor. Bacon, 241 Mass. at 423.
The party claiming the easement bears the burden and must prove the grantor intended to create an easement at the time of conveyance. Mt. Holyoke, 284 Mass. at 105; Boudreau, 29 Mass. App. Ct. at 629. Because a deed is construed against the grantor, an implied easement is more readily found when claimed by a grantee. Krinsky v. Hoffman, 326 Mass. 683 , 688-689 (1951); Boudreau, 29 Mass. App. Ct. at 629 ("The burden is heavier for a grantor asserting a right to an easement by implied reservation for his benefit than for a grantee asserting such an easement by implied grant.").
There are sufficient undisputed facts in the record to support a finding that the Lakeview Road Defendants hold an implied easement to use Lakeview Road for its entire length as laid out on the 1924 Plan. The Lakeview Road Defendants argue that Killdeer Properties intended to grant an easement because Lakeview Road actually existed as an unpaved way, unlike a paper street. See Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354-355 (1926) (way in question merely existed on paper and had not been marked out or used as such, cutting against argument for implied easement). The ways on the 1924 Plan exist on the ground. The intent of the grantor can be shown by the description of the lots as bounding on Lakeview Road, the reference to the 1924 Plan in the deeds, and the plan's depiction of Lakeview Road as providing frontage for each lot and access to the public way. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 68 (2009).
There is, however, insufficient evidence to support a finding that the Lakeview Road Defendants hold an implied easement to use the Unpaved Way to access the Indian Ranch Property. There are no ways shown on the 1924 Plan that extend onto the Indian Ranch Property. If the 1924 Plan showed Lakeview Road as continuing, open-ended onto Indian Ranch, that would have been an indication that the grantor intended to grant the owners of lots in the Subdivision rights over the Unpaved Way. Id. at 70. The defendants have not presented any evidence to suggest that the way was marked out on the ground as extending onto the Indian Ranch Property. See Wellwood, 254 Mass. at 355. The Gate, located at the northerly end of Lakeview Road, is further evidence that the grantors did not intend to grant an easement over any ways extending onto Indian Ranch. The presence of the Gate, along with the fact that Lakeview Road, as shown on the 1924 Plan, clearly ends at the boarder to the Indian Ranch Property, suggests a lack of intent to convey rights to the Lakeview Road Defendants in the Unpaved Way.
C. Easement by Common Scheme
Though there is sufficient evidence to support a finding that the Lakeview Road Defendants have an easement over the entirety of Lakeview Road through either estoppel or implication, they also contend that they have an easement by common scheme over Lakeview Road and the Unpaved Way. An easement by common scheme is simply a form of implied easement which arises where multiple conveyances are intended to include the same common set of rights. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 832-835 (2008). It begins with the principle that the mere recording of a plan which refers to a street or way does not, without more, convey any rights. There must be additional evidence to find intent to create an easement over a way by common scheme. Duddy, 75 Mass. App. Ct. at 67; Boudreau, 29 Mass. App. Ct. at 628; Patel, 27 Mass. App. Ct. at 480-481; Waldron, 20 LCR at 483-484. When a conveyance references a plan, however, the plan can help determine the rights the grantor intended to convey. Reagan, 446 Mass. at 458; Bacon, 241 Mass. at 422. "Whether a set of conveyances combined with a plan creates a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable." Denardo v. Bosworth, 20 LCR 344 , 354 (2012), citing Reagan, 446 Mass. at 458. The parties claiming the easement bear the burden of showing the common grantor intended to create an easement. Reagan, 446 Mass. at 458.
As discussed above, although the deeds did not have language granting a right to use the ways shown on the 1924 Plan, the 1924 Plan, as referenced in the deeds, is itself evidence of a common scheme. The plan combined with the conveyances may be evidence of an intent to create a common scheme whereby all of the owners of the lots shown on the plan have the benefit of the use of the ways shown on the 1924 Plan. Additional evidence also supports the grantor's intent to create a common scheme. The 1924 Plan shows a community park, which courts have found is evidence of a common scheme, at least with respect to the ways shown on the plan. See id. at 458; Houghton, 71 Mass. App. Ct. at 834-835. Evidence of a common scheme does not include ways not depicted on a plan. Thus, there remains insufficient evidence to support a finding of an easement by common scheme onto and over the Indian Ranch Property. The evidence in the record of a common scheme is not extensive. To find a common scheme would require the impermissible drawing of inferences in the Lakeview Road Defendants' favor. On the other hand, the evidence in the record "is at best a toehold to establish" an easement by common scheme, which "is enough to survive a motion for summary judgment." Marr Equip. Corp. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231 , 235 (1982).
Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is ALLOWED IN PART AND DENIED IN PART. Judgment shall not enter at this time; at this stage of the proceedings it is not clear if the case is ripe for final judgment. A status conference is set down for January 18, 2017 at 10:30 am.
SO ORDERED
WEBSTER VENTURES, LLC, v. HERBERT J. DUMORE and ROSE DUMORE, SHARON A. MCCORMICK, GAIL C. BROCHU, LINDA JENESKI, MOHAMED JABER, FREDERICK W. CRONIN, ANNETTE T. CRIASIA, SUZANNE J. VALLEE, JOSEPH J. WOODMAN, III and BARBARA J. WOODMAN, LEE J. PARKER, STEPHEN P. MAGNUSON and MARY A. MAGNUSON, LINDA C. CHAMBLESS, TRUSTEE OF THE LAKEVIEW ROAD IRREVOCABLE TRUST, CYRILLA SROKA, FAITH D. RUBIN, HENRY E. HOPKINS and LORI J. HOPKINS, CHAD R. STAWIECKI, TRUSTEE OF THE ROBERT STAWIECKI IRREVOCABLE TRUST, JEREMY T. STAWIECKI, TRUSTEE OF THE ROBERT STAWIECKI IRREVOCABLE TRUST, RAY A. CULL and SHELLEY SOLOMON CULL, EMANUEL J. LEO and LINDA J. LEO, J. TERRENCE SULLIVAN and NANCY SULLIVAN, MARK H. BROOKS and LINDA A. CROTEAU-BROOKS, ADAM STAWIECKI, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ALLY BANK CORPORATION F/K/A GMAC BANK, BANK OF AMERICA, N.A., THE CADLE COMPANY, ASSIGNEE OF FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF HOME NATIONAL BANK OF MILFORD, COMMONWEALTH NATIONAL BANK, EASTHAMPTON SAVINGS BANK, MILFORD FEDERAL SAVINGS AND LOAN ASSOCIATION, NATIONSTAR MORTGAGE, LLC, PEOPLE'S SAVINGS BANK, PORTFOLIO RECOVERY ASSOCIATES, LLC, ROSS MORTGAGE COMPANY, INC., SANTANDER BANK, N.A., SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, UNIBANK FOR SAVINGS, UNION CAPITAL MORTGAGE BUSINESS TRUST, WASHINGTON MUTUAL BANK FA, WEBSTER FIRST FEDERAL CREDIT UNION, TD BANK, NA, TOWN OF WEBSTER, PENNYMAC LOAN SERVICES, LLC.
