DEBRA L. ROBBINS, individually and as Trustee of the BAY VIEW REALTY NOMINEE TRUST, and OUTDOOR VENTURES, LLC. v. ROBERT A. CHAMBERLAIN.

Plaintiffs in this case, Debra L. Robbins, individually and as Trustee of the Bay View Realty Nominee Trust, and Outdoor Ventures, LLC, seek a declaratory judgment that, as owners of certain parcels of land in the Shove's Neck area of Berkley, Massachusetts, they are the holders and beneficiaries of two right of way easements across land owned by Defendant Robert A. Chamberlain, [Note 1] and that they are entitled to improve said rights of way (Count I). They further ask the court to determine and fix the locations and dimensions of the claimed right of way easements (Count II), and to order Chamberlain to remove a cranberry bog and to otherwise refrain from interfering with Plaintiffs' use of the rights of way (Count III). Chamberlain denies that there are any rights of way across his lots for the benefit of Plaintiffs' land, and has counterclaimed for declarations that any rights of way which might have benefitted Plaintiffs' land have been terminated through adverse possession, extinguished by abandonment, or by obsolescence and frustration of purpose (Counterclaims I through III). Chamberlain has also counterclaimed against Robbins for overburdening (Counterclaim IV), for interference with advantageous economic relations (Counterclaim V), and for interference with contractual relations (Counterclaim VI). [Note 2]

On October 9, 2015, Plaintiffs filed a Motion for Partial Summary Judgment under Count I of their Amended Complaint for a declaration that they hold valid and enforceable rights of way over the Chamberlain land as a matter of record, [Note 3] and under Defendant's Counterclaims I and II, for a declaration that said rights of way have not been terminated by abandonment, prescription, or estoppel. On October 16, 2015, Defendant filed a Motion for Summary Judgment on all Counts in the Plaintiffs' Amended Complaint, as well on all of Defendants' Counterclaims. [Note 4] Plaintiffs' Opposition to Defendant's Motion for Summary Judgment was filed on November 10, 2015. Defendant's Opposition to the Plaintiffs' Motion for Partial Summary Judgment, and Defendant's Motion to Strike the Affidavit of Richard Serkey accompanying Plaintiff's Motion for Partial Summary Judgment, were both filed on December 4, 2015. [Note 5] On January 25, 2016, Plaintiffs filed a Reply to Defendant's Opposition to Summary Judgment and Opposition to Defendant's Motion to Strike. The court took the Parties' Motions under advisement following a hearing held on February 16, 2016.

Now, for the reasons discussed below, I find that Plaintiffs have failed to demonstrate an entitlement to a declaratory judgment in their favor under Count I, because the undisputed facts do not establish the existence of any right of way easements over either of the Chamberlain lots for the benefit of any of the land owned by Plaintiffs. Accordingly, pursuant to Mass. R. Civ. P. 56(c), partial summary judgment shall enter in Defendant's favor under Count I of the Amended Complaint, declaring that the Plaintiffs hold no recorded rights to pass over the Chamberlain land. As resolution of Counts II and III of the Amended Complaint, as well as of Defendant's Counterclaims I through IV, presume the existence of the rights of way claimed in Count I, these remaining claims and counterclaims will be dismissed as moot. Finally, Defendant's Counterclaims V and VI will be dismissed for lack of subject matter jurisdiction.

STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boazova v. Safety Ins. Co., 462 Mass. 346 , 347 (2012); Mass. R. Civ. P. 56(c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). Material facts are those that bear on the outcome of the case. See Jupin v. Kask, 447 Mass. 141 , 145-146 (2006). The substantive law at issue in the case determines whether a fact is material. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and establish the existence of a genuine issue of material fact, through specific evidence, in order to defeat the motion. Pederson, 404 Mass. at 17. Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. See Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989). "Summary judgment, when appropriate, may be rendered against the moving party." Mass R. Civ. P. 56(c).

Here, resolution of all other claims and counterclaims in this action hinges on whether or not Plaintiffs have, as they claim under Count I, the benefit of existing rights of way of record across the Chamberlain land. Hence, I begin my analysis by determining whether the Plaintiffs, in moving for partial summary judgment under Count I, have met their burden of establishing the absence of a triable issue of fact in relation to their Count I claim for declaratory judgment that Plaintiffs, as owners of certain parcels in the Shove's Neck Area of Berkley, MA, are the holders and beneficiaries of rights of way of record that burden Chamberlain's Lots 4 and 16. And, if so, whether, on the basis of those undisputed material facts, the Plaintiffs have met their burden to show that they are entitled to judgment in their favor as a matter of law.

I find that the material facts pertinent to Plaintiffs' Count I claim are not in dispute – all pertinent facts asserted in the Plaintiffs' Statement of Material Facts having been either expressly admitted or left uncontested by the Defendant. [Note 6] Nevertheless, Plaintiffs have failed to demonstrate through those undisputed facts, that they are entitled the declaratory judgment they seek, as a matter of law.

Plaintiffs' argument in support of their Motion for Partial Summary Judgment under Count I is very brief. Pointing to the language contained in the provisions of Chamberlain's deed conveying Parcel One and Parcel Six (i.e., Lot 4 and Lot 16), Plaintiffs contend that those two parcels of land are burdened by two rights of way of record, which actually exist as one continuous right of way and, because Plaintiffs own land "at both ends" of that continuous right of way, they are entitled to use and improve the right of way to access their land. Plaintiffs also argue that their rights have never been abandoned or otherwise terminated. In support, Robbins relies upon Plaintiffs' Statement of Material Facts and Appendix of Supporting Materials, as well as upon an Affidavit of Richard M. Serkey relative to his examination of certain instruments in the chains of title for Lot 4 and Lot 16, copies of which instruments are appended to the Affidavit. [Note 7]

I find that all of the facts set forth in Plaintiffs' Statement of Undisputed Facts material to Count I are adequately supported by the Pleadings and the unchallenged instruments of record referenced in, and attached to, Plaintiffs' Amended Complaint, and/or attached as exhibits to the Serkey Affidavit. As Defendant has submitted no facts contrary, I have determined that the single issue presented under Plaintiff's Count I claim is one appropriate for summary judgment.

THE UNDISPUTED FACTS MATERIAL TO COUNT I

The undisputed material facts established in the summary judgment record pertinent to Plaintiffs' Motion for Partial Summary Judgment under Count I are as follows:

1. Plaintiff Debra L. Robbins is sole trustee of the Plaintiff Bay View Realty Nominee Trust and is the sole member of Plaintiff Outdoor Ventures, LLC (individually and collectively, the Plaintiffs shall be referred to herein either as "Robbins" or the "Plaintiffs").

2. Robbins is the record owner of several parcels of land located near Shove's Neck in Berkley, MA, which are designated on the 2009 Town of Berkley Assessors Map 14 ("Assessors Map 14") as Lot 6, Lot 6-01, Lot 8, Lot 18, Lot 19, Lot 20, Lot 24, and Lot 28 (collectively, the "Robbins Lots").

3. Elmer Chamberlain, the original named Defendant in this action, is the record owner of multiple parcels of land near Shove's Neck in Berkley, MA, including parcels designated on Assessors Map 14 as Lot 4 and Lot 16.

4. Elmer Chamberlain died after this action was commenced, and the court allowed the Defendant's Assented-to Motion to Substitute Party to substitute Elmer's son and the heir in possession, Robert A. Chamberlain, as Defendant (the "Defendant" or "Chamberlain").

5. The deed into Elmer Chamberlain, dated August 22, 1988 and recorded with the Bristol County Northern District Registry of Deeds (the "Registry") at Book 3890, Page 330 (the "Chamberlain Deed"), describes six parcels of land. Parcel One is described in the Chamberlain Deed as containing about 53 ½ acres of land, part of which lies in the Town of Berkley and part of which lies in the Town of Freetown, but excepting therefrom an approximately 1.20 acre parcel. The portion of Parcel One lying in Berkley comprises the approximately 26 acre parcel identified as Lot 4 on Assessors Map 14.

6. Following the bounding description of Parcel One, the Chamberlain Deed recites that Parcel One is "subject to two rights of way as set forth in deed recorded in Bristol County Northern District Registry of Deeds at Book 265, Page 167." The referenced source deed, which is dated January 26, 1863, describes two parcels of land conveyed by Nathan Chace to Josiah Chace, the first in Berkley and the second in Freetown (the "Chace Deed").

7. The first parcel conveyed by the Chace Deed is described as 26 acres, more or less, situated in Berkley. Following the description of the first parcel is the following clause:

Reserving a right of passageway over the southerly part of said premises for the use of the owners of marsh and other lands southerly from said premises.

No other right of way is mentioned in connection with the first parcel described in the Chace Deed.

8. The first parcel described in the Chace Deed comprises the same portion of Parcel One that is shown on Assessors Map 14 as Lot 4.

9. The Robbins Lots 8, 28, 18, 19 and 20 are all located southerly of Lot 4.

10. The Chamberlain Deed describes Parcel Six as

a certain tract of upland pasture containing about one (1) acres [sic] of upland pasture lying near 'Shove's Neck' of the Assonet River and bounded Northerly by land formerly of Benjamin Chace; Easterly by tide meadow land now or formerly of Jonathan R. Guerney heirs; Southerly by tide meadow land now or formerly of Gilbert M. Nichols et ali [sic] and Westerly by tide meadow land now or formerly of Cornelia M. Simmons with right of way for the passing of several parties along the westerly side of said tract.

(Emphasis added).

11. Parcel Six in the Chamberlain Deed comprises the land shown as Lot 16 on Assessors Map 14.

12. By deed dated September 24, 1909, and recorded in the Registry at Book 736, Page 58, Gilbert M. Nichols conveyed to Marcellus Boynton

a certain tract of upland pasture in said town of Berkley containing about one acre lying near 'Shove's Neck' of the Assonet River and being bounded as follows:- Northerly by land now or formerly of Benj. Chace[,] Easterly by Tide Meadow land of Jonathan R. Gurney Heirs, Southerly by Tide Meadow of Grantor and others and Westerly by tide Meadow of Cornelia M. Simmons – With right of Way for the passing of several parties along the Westerly side of said tract.

(the "Nichols Deed") (Emphasis added).

13. The one acre parcel described in the Nichols Deed comprises the land shown as Lot 16 on Assessors Map 14.

14. The Nichols Deed is not referenced in the Chamberlain Deed. Instead, the Chamberlain Deed describes Parcel Six as "[b]eing the same premises conveyed to Elmer A. Chamberlain and Harriet P. Chamberlain by deed of Gilbert S. Rapoza, et ux, dated August 20, 1976 and recorded with the Bristol County Northern District Registry of Deeds at Book 1712, Page 206.

15. A 1948 survey plan prepared for Gilbert S. Raposa depicts, without deed reference or other descriptive notes, a right of way through the surveyed parcel to Bay View Ave. Before turning westerly through the surveyed parcel, the right of way is shown as extending northerly from "Right of Way Road to Shove's Neck on land of Jonathan R. Guerney Heirs, labelled "Tide Meadows," and then through what are now Chamberlain's Lots 4 and 16. [Note 8]

16. A 1988 survey plan of land owned by Shoves Neck Realty Trust shows a gravel roadway labelled "Causeway" extending northerly from a series of ways crossing an area labelled "Shoves Neck," crossing through an area labelled "Marsh Meadow," and then through a parcel owned by Shoves Neck Realty Trust before turning westerly toward Bayview Avenue through the surveyed parcel labelled "former John Boyce Homestead." The plan also shows "approximate location of Right of Way as shown on [the 1948 Raposa plan]" extending northerly through the Chamberlain land. [Note 9]

17. A third survey plan prepared in 1988 [Note 10] shows a gravel roadway labelled "The Causeway," extending northerly from land "now or formerly of Manteiga Realty Trust," labelled "Shoves Neck," through two adjoining parcels labelled "Broad Marsh" – one of "present unknown owners" and one surveyed for Shoves Neck Realty Trust, and ultimately turning northwesterly toward Bayview Avenue through another parcel owned by Shoves Neck Realty Trust. The plan does not show the Chamberlain land.

18. Assessors Map 14 shows a way labelled "The Causeway" extending from Shoves Neck, and continuing in a northwesterly direction following inside the easterly boundary of land abutting Lots 4 and 16 (i.e., westerly of said Lots) and then continuing across other land out to Bay View Avenue. Assessors Map 14 also shows a "Right of Way" easement branching off the Causeway and extending in a northerly direction across Lots 16 and 4.

DISCUSSION

"Reserved" Right of Passageway over Lot 4

The Plaintiffs argue that the recitation in the Chamberlain Deed that Parcel One is "subject to two rights of way as set forth in" the Chace Deed evidences that a right of way has existed over the Lot 4 portion of Parcel One since at least 1863, when the referenced Chace Deed "reserved" a right of passage over Parcel One for the benefit of landowners to the south. The "reservation" language to which the Plaintiffs apparently refer is contained in the 1863 deed from Nathan Chace to Josiah Chace, which states:

Reserving a right of passageway over the southerly part of said premises for use of the owners of marsh and other lands southerly of said premises.

For the reasons discussed below, Plaintiffs' argument misconstrues the legal effect of the above- quoted clause.

"When an easement has been 'reserved' in the grant of a parcel of land, the easement must be construed with reference to 'the deed and circumstances when it was made.'" Rogel v. Collinson, 54 Mass. App. Ct. 304 , 313 (2002) (quoting Rahilly v. Addison, 350 Mass. 660 , 662 (1966)). A "reservation" in a deed vests in the grantor some new right or interest that did not exist before. But a reservation cannot vest a new right in a stranger to the deed. Hodgkins v. Bianchini, 323 Mass. 169 , 172 (1948); Murphy v. Lee, 144 Mass. 371 , 374 (1889). Indeed, a reservation of an easement for a stranger to the deed is void. Hazen v. Matthews, 184 Mass. 388 , 393 (1903).

Nothing in the language of the Chace Deed itself indicates that the right of passageway was being reserved for the benefit of any particular parcels of land owned by the grantor, and nothing in the summary judgment record suggests that the grantor himself retained ownership of the "marsh or any other lands southerly of" the described premises. Nor is there any evidence in the summary judgment record that Nathan Chace owned any of the land now owned by Plaintiffs. Unless Chace did retain ownership of other land to be benefitted by the right of passageway, the "reservation" clause in the Chace Deed could not operate to vest an appurtenant easement of passage in "the marsh and other lands southerly" of the conveyed parcel. See Rogel, 54 Mass. App. Ct. at 314 (citing Jones, Easements, § 43 (1898) in finding that an easement in fee must be appurtenant to land held in fee); see also Hodgkins, 323 Mass. at 172. Compare, Haverhill Sav. Bank v. Griffin, 184 Mass. 419 , 421 (1903) (finding intent to vest right in grantor where deed stated "reserving to the lot next southerly owned by Griffin," and Griffin was the grantor). [Note 11] In any event, if Nathan Chace had owned the marsh or other lands to be benefitted by the reserved right of passageway, such reserved right would not have survived his death where the reservation language contained no words of inheritance. This is because a reservation made in a deed prior to 1912 lacking words of inheritance, granted only an estate for life in the grantor. See Elwell v. Miner, 342 Mass. 450 , 454 (1961) (finding that, without words of inheritance, a clause in an 1852 deed "[r]eserving to myself the right at all times to pass and repass" granted only a life estate); see also O'Shea v. Mark E. Kelly Co., 273 Mass. 164 , 170 (1931) (observing that, prior to enactment of St. 1912, c. 502, § 19, subsequently codified as G.L. c. 183, § 13, use of the word "heirs" was necessary to reserve a fee interest).

Finally, to the extent that Plaintiffs are asking the court to construe the "reserving" clause in the Chace Deed as an "exception" intended to exclude from the conveyance an already- existing right of passage held by the owners of the marsh and other lands southerly of the conveyed land, there is nothing in the summary judgment record that supports such a construction. The summary judgment record is completely devoid of facts relative to the ownership of the marsh and lands southerly of Parcel One at the time the Chace deed was made, and, more particularly, relative to the existence of any appurtenant easements of passage over Parcel One already held by the owners of those lands. See Kronoff v. Worcester, 234 Mass. 254 , 259-60 (1919) (in order for a deed recognizing and excepting existing third party rights "to be valid as such it must appear that the rights…were actually in existence at the date of the deed.") Here, however, there is nothing in the summary judgment record to demonstrate the existence of such rights benefitting the land now owned by Robbins. [Note 12]

Claimed Right of Way over Lot 16

Plaintiffs fare no better in relying upon the language in the Chamberlain Deed relative to conveyance of the Lot 16 land (Parcel Six), which concludes the bounding description of the conveyed property with the following words:

… and Westerly by tide meadow land now or formerly of Cornelia M. Simmons with right of way for the passing of several parties along the westerly side of said tract.

Without any evidence or legal reasoning to support their interpretation, Plaintiffs simply assert that the above-quoted recitation in the Chamberlain Deed constitutes a recognition of an existing right of way over Lot 16 for the benefit of the Robbins Lots.

As an initial matter, Plaintiffs have provided no evidence from which to determine that a right of way appurtenant to the land now owned by Robbins actually existed across the Parcel Six land (Lot 16) at the time of the Chamberlain Deed. Without more, the language in the Chamberlain Deed description of Parcel Six (now Lot 16) is not enough to establish the existence of a right of way over Lot 16, appurtenant to the Robbins Lots, even when read in light of the 1909 Nichols Deed.

The 1909 Nichols Deed contains nearly identical "with right of passing" language in the bounding description of the one acre of pasture land now identified as Lot 16; however, once again there is no evidence that a right of way already existed over the one acre parcel at the time of the Nichols Deed in 1909, appurtenant to the land now owned by Robbins. As discussed above, with respect to the language in the Chace Deed "reserving" a right of passage across the portion of Parcel One now identified as Lot 4, a right to pass must be actually in existence and connected with the estate conveyed in order to be appurtenant to other land. Haverhill Sav. Bank, 184 Mass. at 421. [Note 13]

Moreover, I do not agree with the Plaintiffs' contention that the term "with right of way," as used in the Chamberlain and Nichols Deeds, recognizes an already existing right of way easement burdening the land that is now Lot 16. I read that phrase, instead, to mean "conveyed together with the benefit of a right of way." [Note 14]

Ultimately, Plaintiffs' reliance on the Chamberlain Deed and Nichols Deed as the source of their rights is misplaced. While they may be correct that those deeds reference an already existing right of way, the summary judgment record lacks any evidence that the referenced right of way is one that burdens Lot 16 or, indeed is appurtenant to any of the land Robbins now owns.

CONCLUSION

Plaintiffs, in claiming to hold rights of way across Defendant's land, have the burden to prove the existence of those rights. Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 753-54 (2015). Furthermore, in moving for summary judgment under Count I of the Amended Complaint, they have the burden to establish sufficient undisputed facts to demonstrate entitlement to judgment in their favor on this claim as a matter of law. See Pedersen, supra at 14. To support their claim, Plaintiffs rely upon certain recorded instruments and plans referencing or showing "rights of way" over the Chamberlain land. While none of the recorded instruments and plans are disputed, [Note 15] the undisputed facts presented by Plaintiffs are insufficient to satisfy their burden to prove that such rights of way are located on the Chamberlain land in the locations depicted and are appurtenant to the land now owned by Robbins.

Accordingly, Defendant is entitled to summary judgment in his favor under Plaintiffs' Count I claim, declaring that Plaintiffs do not have the benefit of any right of way easements across Defendant Chamberlain's Lots 4 and 16. Further, because Plaintiffs have failed to establish their claimed rights to pass over the Chamberlain land, their remaining claims seeking to locate the claimed rights of way, and to enjoin Chamberlain from interfering with their use of the claimed rights of way, are moot and, therefore, shall be dismissed. Similarly, Defendant's Counterclaims I through III claiming termination or abandonment of the Plaintiffs' claimed rights of way are also moot, and shall be dismissed. Finally, because Defendant's Counterclaims IV and V sound in contract or tort and involve no right, title or interest in land, they must be dismissed for lack of subject matter jurisdiction.

Judgment shall enter accordingly.