INTRODUCTION
Plaintiff James Rodriguez, Trustee of the JMR Realty Trust, ("Rodriguez" or "Plaintiff") first filed his Complaint in this matter on August 30, 2013, seeking to remove alleged clouds on the title to his property located at 70 Elm Street in Hanover, Massachusetts. Broadly speaking, Rodriguez seeks to establish that he holds his land free of easement rights benefitting any of the named Defendants. Plaintiff's twice-amended, eight-count Complaint seeks declaratory relief that his land is not burdened by any rights of Defendants to use the areas of his land referenced in recorded deeds and depicted on certain recorded plans as "cart paths," or any rights to use a private driveway easement referenced in recorded deeds and shown on said plans as crossing his land (Counts I, II, IV, and V). [Note 6] Although Rodriguez acknowledges that Defendant Pantooset Farms, Inc. ("Pantooset") expressly retained rights over the portion of said driveway easement route which crosses through one of Plaintiff's lots (known as Lot 70-A), he seeks a declaration that those rights are either no longer in effect or are limited in scope (Count VI). [Note 7] Finally, Plaintiff seeks a declaration that his land is not subject to the restrictions set forth in a recorded instrument creating the Pantooset Farms Homeowners Association (hereinafter referred to as the "Homeowners Restrictions") (Count VIII).
On March 23, 2015, Plaintiff moved for summary judgment on Counts I, VI, and VIII, declaring: (1) that with the exception of the rights expressly reserved by Pantooset in its deed conveying Lot 70-A to Rodriguez's predecessor, [Note 8] none of the Defendants have easements rights in Plaintiff's land; (2) that Pantooset's reserved easement rights are now incapable of being used for their stated purpose and are therefore extinguished; and (3) that the Homeowners Restrictions do not apply to Plaintiff's land. [Note 9] Pantooset's opposition to Plaintiff's Motion is limited only to Plaintiff's claim that Pantooset's reserved easement rights have terminated. Defendant Edward V. Casey as Trustee of the INC Nominee Trust (hereinafter, "Casey") has opposed two aspects of Plaintiff's Motion for Summary Judgment: first, he disputes the claim that he holds no easements over Plaintiff's land and argues, instead that Plaintiff acquired his land already subject to a driveway easement of record benefitting Lot 11; and second, Casey disputes Plaintiff's contention that the Homeowners Restrictions do not apply to Plaintiff's land. [Note 10], [Note 11]
On December 29, 2015, Plaintiff filed his Reply brief and also moved to strike the Affidavit of Joseph V. Polsinello, which accompanied Pantooset's Opposition. The court held a hearing on January 12, 2016. All motions were subsequently taken under advisement in June, 2016. [Note 12] Now for the reasons discussed below, I find that Plaintiff is entitled to partial summary judgment in his favor under Count I that his land is not subject to any easement rights benefitting any of the defaulted Defendants. However, partial summary judgment shall enter against Plaintiff under Count I, declaring that his land is burdened by a driveway easement of record benefitting Defendant Casey as the owner of Lot 11. I further find that Plaintiff is entitled to partial summary judgment in his favor under Count VIII, declaring that his land is not subject to the Homeowners Restrictions. A dispute of material fact, however, dictates that summary judgment must be denied with respect to Plaintiff's claims under Count VI, that Parcel A is not burdened by easement rights in favor of Defendant Pantooset, and that Pantooset's reserved easement rights over Lot 70-A are nullified as a result.
SUMMARY JUDGMENT STANDARD
Summary judgment may enter 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 judgment as a matter of law." Mass. R. Civ. P. 56(c). The court views the facts in the light most favorable to, and draws "all logically permissible inferences" in favor of, the non-moving parties. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 , 395 (2016). "[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991).
UNDISPUTED MATERIAL FACTS
On the summary judgment record before me, and making all inferences in favor of the non-moving parties, I find that the following material facts are undisputed:
1. In 1988, Pantooset took title to several tracts of land in Hanover, located between Elm Street (to the west) and River Road (to the northeast) (collectively, the "Common Estate"). [Note 13] The Common Estate included land now owned by Plaintiff, and most of the land now owned by the various parties named in this case. [Note 14]
2. Between 1990 and 1997, through a series of recorded Approval Not Required ("ANR") plans endorsed by the Hanover Planning Board, which reconfigured existing lots and added new lots at the end of River Road, Pantooset created the "Pantooset Farms Subdivision."
3. The Parties in this case, or their predecessors-in-interest, all acquired their lots from Pantooset between August, 1990 and December, 2004.
4. In some of these conveyances, and as discussed in more detail below, Pantooset reserved to itself access and other easement rights benefiting its remaining land. As relevant to the instant case, Pantooset conveyed:
a. Lot 7D to the predecessors-in-interest of Courtnie V. Graybill and Chadwick Graybill on July 18, 1997, reserving to "itself, its successors and assigns a 50' easement
for access to other land now owned by [Pantooset], its successors and assigns." [Note 15]
b. Lot 6E to the predecessors-in-interest of Peter W. Moll and Sandra Anne Moll, Trustees of the Peter and Sandra Moll Family Trust, "[s]ubject to and with the benefit of
private and common driveway and utility easements for the benefit of
the remaining land of [Pantooset]
." [Note 16]
Homeowners Restrictions
5. On July 13, 1993, Pantooset recorded an instrument entitled "Pantooset Farms Restrictions," which imposed restrictions and covenants concerning use, maintenance, construction, etc. on lots within the Pantooset Farms Subdivision (the "Homeowners Restrictions"), and also creating the Pantooset Farms Homeowners Association. [Note 17]
6. Article I of the 1993 Homeowners Restrictions instrument defines the following relevant terms:
Pantooset Farms. The term Pantooset Farms shall mean the land set forth on Exhibit A subject to expansion as set forth in Section 2.01.
Residential Areas. The term "Residential Areas" shall mean those areas designated as such on said plans to be recorded from time to time by Declarant [Pantooset] (as said plans m[a]y be thereafter amended by Declarant) and intended by Declarant for Residential Use, as defined herein. Initially, the Residential Areas will be Lots 1C, 2C, 3C, 4C, 5C, 6C, 7C, 8C, 9B and 10B on the plan referred to in Exhibit A.
7. Article II of the 1993 Homeowners Restrictions instrument provides, in relevant part:
Section 2.01 Subject Property
The property subject to the Pantooset Farms Restrictions shall be the land presently owned by the Declarant [Pantooset] which is on Exhibit A attached hereto. The declarant may, at its option, expand the definition of "Pantooset Farms" to include all or any portion of the land on Exhibit B hereto.
8. Exhibit A to the 1993 Homeowners Restrictions is a plan entitled: "Plan of Land in Hanover, Massachusetts," dated May 17, 1993, prepared for Pantooset by Consulting Engineers & Scientists, Inc. It depicts Lots 1C, 2C, 3C, 4C, 5C, 6C, 7C, 8C, 9B, and 10B of the Pantooset Farms Subdivision at the end of River Road Extension. Exhibit A does not include the land which would later be divided into "Lot 70-A" and "Parcel A."
9. Exhibit B to the 1993 Homeowners Restrictions is a March 10, 1992 letter from the then-Chairman of the Hanover Planning Board to the Pantooset Farms Subdivision developer. No plans or other attachments are included with the Exhibit B letter, and the letter contains no reference to any lots, parcels, "land" or "any portion of land." [Note 18]
Lot 11
10. By plan of land dated May 1, 1998, and endorsed by the Hanover Planning Board as ANR on May 18, 1998, Pantooset created Lot 11 and Parcel R-2 from its remaining land to the south of Lots 7D and 6E (as reconfigured) in the Pantooset Farms Subdivision (the "Lot 11 Plan"). [Note 19] Lot 11 is shown on the ANR plan as an 8.78 acre "pork-chop" shaped lot, with 151.00 feet of frontage on Elm Street, a public way. [Note 20] The majority of the Lot 11 uplands are located at the eastern-most end of the Lot, in the area abutting Lots 7D and 6E. The Lot 11 upland area is connected to the Lot's Elm Street frontage via an approximately 87 ft. wide, 1700 ft.± long, strip of land consisting mostly of wetlands. No driveways or easements are indicated on the Lot 11 Plan. The Lot 11 Plan was recorded on May 28, 1998.
11. By deed dated May 28, 1999, and recorded on June 1, 1999, Pantooset conveyed Lot 11 and Parcel R-2, to James M. Tower, Defendant Casey's predecessor-in-title. [Note 21] The Lot 11 Deed makes conveyance of Lot 11:
subject to and [with] the benefit of river access and driveway easements as shown on 'Easement and Restrictive Use Area Plan, River Road Extension
," dated May 6, 1998 and recorded in Book 41, at Pages 19-20. The purpose of the driveway easement is to provide access to Lot 11 over Lot 6-E as shown on the aforementioned plan for all purposes for which driveways are commonly used in the Town of Hanover, MA. [Note 22]
The referenced 1998 Easement and Restrictive Use Plan does not show any driveway easement extending to Elm Street.
12. The Lot 11 Deed also makes the conveyance
subject to all easements and restrictions of record to the extent same remain in full force and effect and applicable hereto, including those easements and restrictions depicted and described on plan entitled "Community Entrance Driveway Easement, Utility, Frontage and Access Plan, Elm Street in Hanover, MA" recorded herewith (hereinafter the "1999 Driveway Easement Plan"). [Note 23] [Emphasis added.]
13. The 1999 Driveway Easement Plan referenced in the Lot 11 Deed depicts a driveway route entirely within the bounds of an area labeled on said Plan as Area "C." The driveway route originates in the west at Lot 11's frontage on Elm Street, and proceeds in a southeasterly direction, crossing into a portion of the remaining land of Pantooset within Area "C," and an area labeled "Parcel R-3", then crossing Lots 7D and 6E, and terminating at Lot 11's northwestern boundary.
14. The 1999 Driveway Easement Plan includes a notation labeled "Easements and Restrictions Reserved Hereunder," which states in full:
Area C is Applicable to all areas indicated on this plan which include the generally depicted portions of Form-A Lot 11, Lot 6E, Lot 7D and Parcel R3. This Plan shall depict and provide a Private Driveway easement for Lot 11 through Parcel R3, Lot 7D, and Lot 6E as shown on this Plan. The Private Driveway shall generally follow and respect the route outlined in DEP filing and subsequent orders of conditions SE 31-440 and SE 31-517, all as more specifically shown on this Plan. [Pantooset] or its nominee reserves the right to grant future easements to lot owners within the Pantooset Farms Subdivision for a proposed community entrance. Further, [Pantooset], or its nominee, reserves the right to enter upon portions of Lot 11 marked as Area C hereon for the purpose of Construction, replication, repairs, maintenance, wetlands and environmental protection requirements, applicable filings with the appropriate boards and commissions and any and all other authorities. It is specifically agreed and understood that [Pantooset], and designees of [Pantooset], reserves the right to pass and repass over that portion of Lot 11 fronting on Elm Street in order to gain access to the driveway depicted on this plan and passing over Area C.
[Pantooset] or nominee, reserves the right to reconfigure that portion of Lot 11 immediately fronting on Elm Street for the purposes of gaining access to Parcel R3 or any and all other lands of [Pantooset], provided however, any such reconfiguration shall be at the expense of [Pantooset], or its nominee and shall not in any way, compromise access or easement as granted hereunder and shall further be undertaken in a manner consistent with the requirements of the Planning Board of the Town of Hanover and the subdivision control law. [Emphasis added.]
15. Parcel R3, mentioned in said notation, comprises a portion of the remaining land of Pantooset at the time, including the land that was eventually conveyed to Plaintiff as Lot 70-A and Parcel A.
Lot 70-A & Parcel A
16. Less than six months after the conveyance of Lot 11 and Parcel R-2 to Casey's predecessor, Pantooset conveyed Lot 70-A (formerly part of Parcel R3) to WHOFAJ on December 11, 2000 (the "Lot 70-A Deed"). [Note 24]
17. The Lot 70-A Deed identifies the subject land as Lot 70-A on a plan entitled "Lot 70-A Elm Street in Hanover, MA 02050" being recorded with the deed (the "Lot 70-A Plan"). [Note 25] The Lot 70-A Plan which divided the Lot 70-A land from the remaining land of Pantooset, was endorsed by the Hanover Planning Board as ANR on March 6, 2000. It shows a "Proposed Driveway" contained entirely within the boundaries of Lot 70-A, commencing at that Lot's Elm Street frontage and terminating at the designated building area for Lot 70A. The Lot 70-A Plan does not depict Lot 11 or Parcel R-3, but identifies said land area only as "Remaining Land of Pantooset Farms, Inc."
18. The Lot 70-A Deed provides, in relevant part:
This conveyance is subject to and with the benefit of an easement to pass and repass by foot and motor vehicle over the driveway connecting Elm Street and River Road Extension as depicted on a certain plan entitled "Revised Community Entrance Driveway Easement, Utility, Frontage and Access Plan.
"; said plan being recorded herewith.
The Grantor, [Pantooset], its successors and assigns, hereby reserves the right to grant to other lot owners within Pantooset Farms the right to pass and repass, by foot and by motor vehicle over that portion of Lot 70-A, whereupon the driveway described herein is located, as shown on the aforementioned plan. Provided, however, the owner or owners of Lot 70-A shall have the right to restrict the use of that portion of the driveway located on Lot 70-A to the hours of 6:00 a.m. to 8:00 p.m. Monday through Friday and 8:00 a.m. to 6:00 p.m. on weekends. Grantor and Grantee acknowledge and agree that the driveway described herein is a private way for use by owners of lots in Pantooset Farms, as described herein, and no portion of the driveway shall become a public way. [Emphasis added.]
19. The referenced "Revised Community Entrance Driveway Easement, Utility, Frontage and Access Plan," dated December 8, 2000 (hereinafter, the "2000 Driveway Easement Plan"), contains the same notes captioned "Easements and Restrictions Reserved Hereunder," that appear on the 1999 Driveway Easement Plan. [Note 26] The 2000 Driveway
Easement Plan shows the same land and the same driveway route as depicted on the earlier plan, but also depicts the new Lot 70-A boundaries, eliminates identification of Pantooset's remaining land as Parcel R-3, and depicts Lot 11 and Parcel R-2 as a combined Lot 11A.
20. Recorded immediately before the Lot 70-A Deed, was an instrument entitled "Amendment to Pantooset Farms Restrictions," dated December 11, 2000. [Note 27] In relevant part, the Amendment provides:
Pursuant to the power granted to the Declarant under the provisions of Article II, Section 2.01 of the Pantooset Farms Restrictions, Article I
[is] amended as follows: [Note 28]
Article I
Definitions
Residential Areas. The term "Residential Areas" shall mean those areas designated as such on said plans to be recorded from time to time by Declarant [Pantooset]) (as said plans m[a]y be thereafter amended by Declarant) and intended by Declarant for Residential Use, as defined herein. [Initially,] The Residential Areas will be Lots 1A, 2E, 3D, 4D, 5D, 6E, 7D, 8C, 9B, 10B, 11, Parcel R2, and Lot 70-A, all as the same are more particularly described in deeds and plans appropriately recorded with the Plymouth County Registry of Deeds.
.
Except as specifically amended hereunder, all other terms and conditions of the Pantooset Farms Restrictions, as amended, shall remain in full force and effect.
[Alterations added.] Notably, the Amendment did not alter the Section I definition of "Pantooset Farms."
21. On November 22, 2002, WHOFAJ acquired from Pantooset an additional 17,206 s.f. parcel abutting Lot 70-A along its southwestern border and connecting to a point on Elm Street on the west ("Parcel A"). [Note 29] The Parcel A Deed describes the land conveyed by reference to a "Plan of Land entitled 'Elm Street in Hanover, MA' as drawn by Aaberg Associates Inc., dated July 13, 2002, and recorded at the Plymouth County Registry of Deeds, as Plan No. 02-593," being recorded therewith.
22. The Parcel A Deed does not expressly make the conveyance subject to any easements or reservations of easements across Parcel A.
23. The Parcel A Plan depicts an "existing driveway" crossing Parcel A in the approximate location of the driveway easement route shown on both the 1999 Driveway Easement Plan and the 2000 Driveway Easement Plan, but does not reference either of those plans, and contains no notes or other indication of an existing or reserved easement over Parcel A.
DISCUSSION
Rights in the "Cart Paths"
No Defendant (including Pantooset and Casey) has opposed Plaintiff's request for a judgment quieting and clearing any cloud on title over the so-called cart paths. Although several plans referenced in Defendants' chains of title do depict "Cart Paths," none of Defendants' deeds mention any rights granted or reserved over any cart paths. There are also no facts in the summary judgment record suggesting the existence of any easements over the cart paths arising by implication, common scheme, or necessity. Accordingly, I find on the undisputed record, and in light of Defendants' defaults, that Plaintiff is entitled to summary judgment declaring that his land is not subject to rights of any of the Defendants in the cart paths, except insofar as the driveway easement rights of Defendants Pantooset and Casey may, in places, coincide with the locations of existing or depicted cart paths. The driveway easement rights of Pantooset and Casey will be addressed in the following sections.
Rights in the Driveway Easement over Lot 70-A and Parcel A
In Count VI of the Amended Complaint, Rodriguez seeks a declaratory judgment that neither Lot 70-A nor Parcel A are presently burdened by a driveway easement reserved in the Lot 70-A Deed. While acknowledging the express easement reservation in the Lot 70-A Deed, Rodriguez contends that Pantooset's reserved easement rights were extinguished when Pantooset subsequently conveyed to WHOFAJ the Parcel A strip of land without reserving rights over Parcel A. This failure to reserve rights, Rodriguez says, eliminated the purpose of the driveway easement reserved over Lot 70-A.
Pantooset opposes summary judgment, contending that its expressly retained rights in the driveway easement over Lot 70-A were not extinguished because it retained implied rights over Parcel A. Casey opposes summary judgment on the grounds that the original conveyances of Lot 70-A and Parcel A were both made subject to existing driveway easement rights of record appurtenant to Lot 11 -rights which could not have been extinguished merely because they were not expressly mentioned in the deeds out to WHOFAJ.
For the reasons set out below, I find and rule that Lot 70-A and Parcel A are burdened by a driveway easement benefitting Lot 11. I further find, however, that factual issues make summary judgment inappropriate with respect to the questions of whether the driveway easement rights reserved by Pantooset in the Lot 70-A Deed were subsequently extinguished when Pantooset conveyed Parcel A without reserving similar rights.
Lot 11's Rights in the Driveway Easement
A year after the Lot 11 Plan was recorded on May 28, 1998, Pantooset conveyed Lot 11 and Parcel R-2, as shown on the recorded Lot 11 Plan, to Casey's predecessor. The Lot 11 Deed makes conveyance of Lot 11 "subject to all easements and restrictions of record
, including those easement and restrictions depicted and described on" the 1999 Driveway Easement Plan.
"The principle of construction governing the interpretation of deeds is that where mention is made of an easement as an incumbrance or as an appurtenance of the land conveyed and reference is made in the deed to a plan, the plan must be considered as a part of the deed, so far as is necessary to aid in description and identification of the easement." Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). [Note 30] Here, the 1999 Driveway Easement Plan does, in fact, aid in description and identification of the easements and restrictions conveyed under the Lot 11 Deed by reference to the plan being recorded therewith. More specifically, the 1999 Driveway Easement Plan shows the outline of what appears to be an access or driveway route originating at the Lot 11 Elm Street frontage, and proceeding through the front portion of Lot 11 into and through the portion of the Parcel R-3 "remaining land of [Pantooset]" identified as Area "C," then crossing through Lot 7-D into the southwest corner of Lot 6-E, and finally ending at the northwest corner of Lot 11. For much of its length within Area "C" of Pantooset's remaining land, the access route depicted is labeled "Gravel Road Existing Cartpath." [Note 31] There are no courses or measurements provided for the "Gravel Road Existing Cartpath," or any other sections of the apparent driveway route shown on the Plan.
Relying on the depiction of the driveway route on the 1999 Driveway Easement Plan, as well as on certain notes printed on the face of said Plan, Casey argues that the Lot 11 Deed expressly grants a driveway easement for the benefit of Lot 11 along the route shown on the Plan, including over the portions of Parcel R-3 that Pantooset subsequently conveyed to WHOFAJ as Lot 70-A and Parcel A. The notes on the 1999 Driveway Easement Plan, labelled "Easements and Restrictions Reserved Hereunder," provide in relevant part that "[t]his Plan shall depict and provide a Private Driveway easement for Lot 11 through Parcel R3, Lot 7D, and Lot 6E as shown on this Plan" (emphasis added).
On the basis of the foregoing, I find that the undisputed material facts are sufficient to demonstrate that Pantooset conveyed Lot 11 with an appurtenant driveway easement through Lot 7-D and Lot 6-E, [Note 32] and through Pantooset's remaining land, including the portion later conveyed out as Lot 70A and Parcel A, for the purpose of accessing Elm Street. [Note 33]
Easement Rights over Lot 70-A
Less than six months after Pantooset conveyed out Lot 11 to Casey's predecessor, Pantooset conveyed a 232,851 s.f. portion of its remaining Parcel R-3 land to WHOFAJ. The Lot 70-A Deed conveys that Lot "subject to and with the benefit of an easement to pass and repass by foot and motor vehicle over the driveway connecting Elm Street and River Road Extension as depicted on [the 2000 Driveway Easement Plan]
said plan being recorded herewith." [Emphasis added.] The 2000 Driveway Easement Plan was recorded on the same date as the Lot 70-A Deed. [Note 34]
It is undisputed that the Lot 70-A Deed also expressly reserves to Pantooset the right to grant lot owners within Pantooset Farms the right to pass and repass "over the portion of Lot 70- A, whereupon the driveway described herein is located, as shown on the aforementioned plan," subject to the right of the Lot 70-A owner to restrict the hours the portion of the driveway located on Lot 70-A can be used. The Lot 70-A Deed further recites that the grantor and grantee "acknowledge and agree that the driveway is a private way for use by owners of lots in Pantooset Farms and that no portion of the driveway shall become a public way." The Lot 70-A Deed
permitted the grantee to "install, repair and maintain a secondary community entrance gate at a location on the driveway as specifically shown on the [2000 Driveway Easement Plan]."
The 2000 Driveway Easement Plan is incorporated into the Lot 70-A Deed by reference. As such, the 2000 Driveway Easement Plan serves as an aid in identifying and describing the driveway easement rights reserved in the Lot 70-A Deed. Dubinsky, 261 Mass. at 53. The 2000 Driveway Easement Plan does not contain an endorsement by the Hanover Planning Board, and it differs in certain material respects from the Lot 70-A Plan which was endorsed by the Planning Board. For example, the 2000 Driveway Easement Plan does not show the "Proposed 20' Driveway" as depicted on the Lot 70-A Plan. Instead, the 2000 Driveway Easement Plan shows a "Gravel Road Existing Carthpath" entering from Elm Street through the frontage of Lot 11A, and then crossing into "remaining land of [Pantooset]" before crossing into Lot 70-A. Also, unlike the "Proposed 20' Driveway" shown on the Lot 70-A Plan, the "Gravel Road Existing Carthpath" shown on the 2000 Driveway Easement Plan continues through Lot 70-A, then re-enters the remaining Pantooset land, proceeds southeasterly across Lot 7-D and the western corner of Lot 6-E, and finally terminates at the northwestern corner of Lot 11A. The layout of this route is the same as that shown on the 1999 Driveway Easement Plan.
The 2000 Driveway Easement Plan also includes the identical notes, labeled "Easements and Restrictions Reserved Hereunder," which appear on the face of the 1999 Driveway Easement Plan. These notes include the statement that "[t]his Plan shall depict and provide a Private Driveway easement for Lot 11 through Parcel R3, Lot 7D, and Lot 6E as shown on this Plan." Of course, Lot 11 is a "stranger" to the Lot 70-A Deed and, therefore, the notes on the 2000 Revised Driveway Easement Plan cannot be read as creating the driveway easement to benefit Lot 11. See Hodgkins v. Bianchini, 323 Mass. 169 , 172 (1948); Murphy v. Lee, 144 Mass. 371 , 374 (1889) (easement reservations made in the first instance to a stranger to a deed create no rights in such strangers). But here, as discussed above, Pantooset had previously granted said driveway easement over its remaining land (including the land later divided out as Lot 70-A) to benefit Lot 11, as described in the Lot 11 Deed and the 1999 Driveway Easement Plan referenced therein.
The note in the 2000 Driveway Easement Plan, although not granting the easement itself, was sufficient to alert WHOFAJ to the existence of the easement already granted to Lot 11. Since both the Lot 11 Deed and the plan referenced in it were on record at the time Lot 70-A was conveyed out to WHOFAJ in title, the Lot 70-A land was already burdened by that easement. [Note 35] Considering that Lot 70-A was conveyed "subject to and with the benefit of an easement
as shown on the [2000 Revised Driveway Plan]," which expressly notes that the Plan shows a "Private Driveway easement for Lot 11 through Parcel R-3," there can be no dispute on this record that Rodriguez (who was also Trustee of WHOJAF) was on notice that Lot 70-A was burdened by an existing driveway easement benefitting Lot 11. Furthermore, and as Plaintiff admits, the Lot 70-A Deed expressly reserved to Pantooset "the right to grant to other lot owners within Pantooset Farms the right to pass and repass
over the [driveway]." [Note 36]
Accordingly, I conclude on the undisputed record before me that WHOFAJ (and in turn, Riodriguez) took Lot 70-A subject to (1) an existing driveway easement over Lot 70-A, benefiting Lot 11, and (2) a reservation of rights in Pantooset "to grant to other lot owners within Pantooset Farms the right to pass and repass, by foot and by motor vehicle over" the driveway route shown on the 2000 Revised Driveway Easement Plan, subject to the limiting terms set forth in the Lot 70-A Deed, see supra note 35.
Easement Rights over Parcel A
Pantooset's subsequent conveyance of Parcel A to WHOFAJ was not expressly made subject to any reservations or easements; nor does the Parcel A Deed make reference to either the 1999 Driveway Easement Plan or the 2000 Driveway Easement Plan. The Parcel A Plan, which is incorporated into the Parcel A Deed by reference, does show a path labeled "existing driveway" located in the same location as the driveway route depicted on the 1999 Driveway Easement Plan and the 2000 Driveway Easement Plan. However, unlike said Plans, the Parcel A Plan does not contain notes describing or reserving any driveway easements.
But the mere failure to include in the Parcel A Deed any mention of the existing Lot 11 easement rights does not extinguish those existing rights of record. See supra note 36. As discussed above, Plaintiff Rodriguez (who was also Trustee of WHOJAF) had actual notice that the driveway easement burdening Lot 70-A for the benefit of Lot 11 continued through Pantooset's remaining land, including the Parcel A portion. Further, given that the "existing driveway" depicted on the Parcel A Plan is in the same location as the driveway easement location depicted on the 1999 and 2000 Driveway Easement Plans, WHOFAF (and in turn, Rodriguez) is fairly charged with notice of Lot 11's easement over Parcel A. Accordingly, I find and rule that the conveyance of Parcel A was subject to the existing driveway easement of record benefitting Lot 11.
The rights of Pantooset, on the other hand, are on different footing. Unlike the Lot 11 driveway easement, which was already of record when Pantooset conveyed out Parcel A to WHOFAJ, there were no existing recorded rights benefitting Pantooset when Pantooset conveyed Parcel A. Pantooset could have reserved those rights in the deed conveying Parcel A, but did not do so. Pantooset attempts to avoid the problem created by its failure to include an express reservation of easement rights in the Parcel A Deed by arguing that WHOFAJ had actual knowledge of Pantooset's "intentions" to reserve easement rights over Parcel A. On that basis, Pantooset asks the court to grant summary judgment in its favor, either reforming the Parcel A Deed to incorporate the intended reservation or, alternatively, declaring that Plaintiff's ownership of Parcel A is subject to implied rights of access.
Of note, Pantooset's Opposition contains the very first mention of deed reformation in this case. Pantooset never sought reformation as a counterclaim. Pantooset did not raise deed reformation as a possible counterclaim in the Joint Case Management Conference Memorandum. Nor did Pantooset bring up "reformation" at any conference or hearing in this case. Therefore, I decline to consider this argument on summary judgment. See Hardick v. Tremblay Moving & Storage Co., 67 Mass. App. Ct. 1109 , *1 (2006) (Rule 1:28 Decision) (holding that trial court need not consider new theories of liability not presented in the pleadings, offered for the first time at summary judgment) (citing Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456 , 463 & n. 7 (1997) for the proposition that a court need not consider allegations of fraud, mistake, duress, or undue influence that are not pleaded with particularity)).
With respect to Pantooset's alternative argument - that Parcel A is encumbered by Pantooset's implied rights over an existing driveway, I find that there are material facts in dispute that prevent summary judgment on this issue. A party asserting an implied easement has the burden to show that "'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.'" [Note 37] Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004) (quoting Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953)); see also Haverhill Sav. Bank v. Griffin, 184 Mass. 419 , 421 (1903) ("[W]here an easement is not set out in the instrument under which the party claiming the privilege holds title, it must be shown to be actually in existence and
connected with the estate conveyed, in order to pass as appurtenant by implication.").
To counter Pantooset's implied easement defense, Rodriguez asserts that it is undisputed that there was no visibly worn path on the ground from Elm Street connecting to the Lot 70-A land prior to 1996. To support this assertion of fact, Rodriguez relies upon his own affidavit. But Pantooset disputes Plaintiff's assertion, relying upon the affidavit of its own President and Treasurer, Joseph V. Polsinello, who claims to have walked pathways providing access over the Lot 70-A and Parcel A land as far back as 1988. [Note 38] Although portions of the Polsinello Affidavit are stricken, the relevant, unstricken portions assert that Mr. Polsinello "walked all areas of land, including a driveway from Elm Street to the railroad bed," and "walked the driveways, roadways, wood roads, and cart paths
on many occasions
.[where] [c]learly there existed a walkway and vehicle access from what is the remaining land of Pantooset Farms over Lot 70A and Parcel A to Elm Street
." Drawing all reasonable inferences in favor of the nonmoving party, the Polsinello Affidavit is sufficient to establish the existence of disputed facts concerning whether there has been "apparent and obvious use of" an existing driveway across Parcel A for the benefit of Pantooset's remaining land. The conflicting affidavits thus prevent summary judgment on the issue of whether Parcel A is subject to an implied easement.
Finally, because, at trial, Pantooset will have an opportunity to establish implied rights to use Parcel A in conjunction with its express easement over Lot 70-A, it is premature at this stage to address the Plaintiff's summary judgment argument that the express easement reserved to Pantooset in the Lot 70-A Deed has become void or nullified under the principle discussed in Comeau v. Manzelli, 344 Mass. 375 , 382 (1962). See also Jones v. Stevens, 276 Mass. 318 , 325-26 (1931). [Note 39]
Applicability of Pantooset Farms Homeowners Restrictions
Pantooset has not opposed the portion of Plaintiff's Motion for Summary Judgment that seeks a declaration that Lot 70-A and Parcel A are not subject to the Homeowners Restrictions.
Only Casey opposes, arguing that Lot 70-A and Parcel A were made subject to the Homeowners Restrictions through a 2000 amendment to those Restrictions.
There is no dispute that, when first recorded in 1993, the Homeowners Restrictions did not apply to the land now identified as Lot 70-A and Parcel A. Article II of said Restrictions, entitled "Property Subject to the Pantooset Farms Restrictions," plainly provides in Section 2.01 Subject Property, that the land subject to the Restrictions "shall be the land presently owned by the Declarant [Pantooset [Note 40] ] which is on Exhibit A attached hereto." The referenced Exhibit A depicts Pantooset Farms Subdivision Lots 1C, 2C, 3C, 4C, 5C, 6C, 7C, 8C, 9B, and 10B. Although, Section 2.01 goes on to provide that Pantooset "may, at its option, expand the definition of 'Pantooset Farms' [Note 41] to include all or any portion of the land on Exhibit B hereto," Exhibit B to the instrument does not depict or identify any land at all. Rather, Exhibit B is a copy of a March 10, 1992 letter from the Hanover Planning Board to the Pantooset Developer communicating the Board's acceptance of the "Homeowner's Association Agreement," and identifying certain variations from the Subdivision Rules and Regulations. Moreover, there is nothing in the summary judgment record to suggest that Pantooset ever attempted to expand the definition of Pantooset Farms to include the land that was subsequently divided to create Lot 70- A and Parcel A.
Contrary to Casey's argument, the "Amendment to Pantooset Farms Restrictions," executed by a member and the clerk of the Pantooset Farms Homeowners Association Board of Directors on December 11, 2000 (the "2000 Amendment"), was ineffective to subject Lot 70-A to the Restrictions. The 2000 Amendment purports to amend Article I and Article III, Section 3.03(A) of the Restrictions "[p]ursuant to the power granted to the Declarant under the provisions of Article II, Section 2.01." The reported amendments set forth a change to the Article I definition of "Residential Areas" to include Lot 11, Parcel R2, and Lot 70-A, and increased from 10 to 12 the total number of dwelling units allowed in the Pantooset Farms Subdivision under Article III. But, importantly, the 2000 Amendment does not amend the Article I definition of "Pantooset Farms," which itself does not refer to the "Residential Areas" but, instead, is defined to mean "the land set forth on Exhibit A subject to expansion as set forth in Section 2.01." Nor does the 2000 Amendment amend Section 2.01, which provides that the declarant may "expand the definition of Pantooset Farms to include all or any portion of the land on Exhibit B hereto." As discussed above, Exhibit A to the Restrictions does not include the Lot 70-A land, and Exhibit B does not show or describe any land at all. Accordingly, where the 2000 Amendment did not alter either the Section 1 definition of "Pantooset Farms" or the Section 2.01 Exhibit B, to include Lot 70-A and Parcel A, it was not effective to subject either Lot 70-A or Parcel A to the Homeowners Restrictions. [Note 42]
Because the language of the Restrictions and the 2000 Amendment thereto is not ambiguous, interpretation of those instruments is purely a matter of law to be determined by the court. World Species List-Nat. Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009) ("[I]nterpretation of the language in the deed, [is] 'an issue that is purely a question of law.'" (quoting McGregor v. Allamerica Ins. Co., 449 Mass. 400 , 402 (2007))). Here, I find that that there is nothing in the plain language of either the original Homeowners Restrictions or the 2000 Amendment thereto which may reasonably be construed as making the Restrictions applicable to either Lot 70-A or Parcel A. Accordingly, Plaintiff is entitled to judgment as a matter of law under Count VIII, declaring that Lot 70-A and Parcel A are not governed by the Homeowners Restrictions, as amended through 2000.
CONCLUSION
Based upon the undisputed facts established in the summary judgment record, and for the reasons discussed in this decision, I find and rule that:
1. Partial summary judgment shall enter in favor of the non-moving party, Defendant Casey, declaring that Lot 11 benefits from a driveway easement across Lot 70-A and Parcel A as originally depicted on the 1999 Driveway Easement Plan, and as also shown on the 2000 Revised Driveway Easement Plan;
2. Partial summary judgment shall enter in favor of Plaintiff, declaring that Lot 70-A and Parcel A are not burdened by any rights of access by any of the defaulted Defendants over any of so-called "Cart Paths" crossing said land; and are not burdened by any rights of Defendant Pantooset or Casey excepting only where the locations of said Cart Paths coincide with the location of the driveway easement route depicted on the 1999 Driveway Easement Plan, and as also shown on the 2000 Revised Driveway Easement Plan.
3. Partial summary judgment shall enter in favor of Plaintiff that Lot 70-A and Parcel A are not subject to the Homeowners Restrictions set forth in the instrument entitled "Pantooset Farms Restrictions," as amended through 2000.
4. Although it is undisputed that Defendant Pantooset did not expressly reserve any rights over Parcel A, there are disputed facts which preclude summary judgment on the issue of whether Pantooset has implied rights over Parcel A.
5. Although it is undisputed that Pantooset expressly reserved certain driveway easement rights over Lot 70-A, there are disputed facts which preclude summary judgment on the question of whether those rights have been extinguished.
Entry of final judgment in this case is deferred until all remaining claims and defenses are resolved.
Provided, however, the owner or owners of Lot 70-A shall have the right to restrict the use of that portion of the driveway located on Lot 70-A to the hours of 6:00 a.m. to 8:00 p.m. Monday through Friday and 8:00 a.m. to 6:00 p.m. on weekends.
However, these limitations can only limit new easements arising under Pantooset's reserved rights to grant future easements. It cannot disturb or limit the easement previously granted to Lot 11.
JAMES RODRIGUEZ, TRUSTEE of the JMR REALTY TRUST v. PANTOOSET FARMS, INC.; EDWARD CASEY, TRUSTEE of the INC NOMINEE TRUST; CHARLES C. HAJJAR and ANNE TAMER HAJJAR, TRUSTEES of the 409 COLUMBIA ROAD NOMINEE TRUST; MICHAEL J. BUTLER and MARGARET G. BUTLER; COURTNIE V. GRAYBILL and CHADWICK GRAYBILL; PETER W. MOLL and SANDRA ANNE MOLL, TRUSTEES of the PETER AND SANDRA MOLL FAMILY TRUST [Note 1]; PETER D. MOORE and CHERYL D. MOORE; ARTHUR F. MURPHY, TRUSTEE OF THE MARJORIE MURPHY TRUST AGREEMENT [Note 2]; BRIAN M. LENAGHAN and MICHELLE M. LENAGHAN [Note 3]; PETER S. DELAHUNT and THERESA C. DELAHUNT, TRUSTEES of the DELAHUNT RIVER REALTY TRUST; DAVID F. GRACE; ROBERT L. KNIGHT, JR.; JAMES P. DONOVAN and JANINE M. DONOVAN; ANTHONY S. MASSIMINO and GERALDINE HERBERT [Note 4]; DENISE S. TORRES and CHRISTIAN N. TORRES; JOHN F. LEE and ELIZABETH A. LEE; JACQUELINE M. MURTHA; DAVID S. FLASHNER, TRUSTEE of the 453 COLUMBIA ROAD REALTY TRUST; and PANTOOSET FARMS HOMEOWNERS ASSOCIATION, INC. [Note 5]