RICHARD ZYGALA v. JOSEPH PIKE and RENEE PIKE

INTRODUCTION

Plaintiff Richard Zygala and Defendants Joseph Pike and Renee Pike are neighbors in Winthrop, Massachusetts. Their residential properties lie in a tandem arrangement, with Plaintiff's lot situated directly behind the Defendants' lot. The Defendants' lot has frontage along Washington Avenue. Plaintiff's lot has no frontage, but has access to Washington Avenue via a ten-foot wide right of way easement of record across the Defendants' lot. The easement area is presently improved with a narrow, concrete walkway. The Plaintiff seeks a declaration of his rights to grade and pave the right of way easement area to provide a driveway for vehicular access to his lot. [Note 1] The Defendants contend that the right of way easement is limited to pedestrian access only, over the existing walkway on their lot.

Following a Case Management Conference held November 20, 2013, this case laid dormant on the court's docket until after the close of discovery, when the court ordered Plaintiff to submit a status report on February 3, 2016. Plaintiff did so and requested an extension of discovery, which the court denied for lack of good cause shown. The court held a pre-trial conference on July 20, 2016.

A one-day trial was held on December 12, 2016. Only the Parties themselves testified. Seven exhibits were admitted at trial. [Note 2] Following the receipt of trial transcripts, and the Parties' respective post-trial memoranda and requests for findings of fact and rulings of law, the court took the matter under advisement on February 2, 2017. Now, for the reasons discussed below, I find and rule that the Plaintiff is entitled to a declaratory judgment that the right of way is not limited in its scope by the terms of the easement grant, and is thus available for all purposes as are reasonably necessary to the full enjoyment of the Plaintiff's lot as the dominant estate, including vehicular access. Accordingly, Plaintiff is entitled to make reasonable improvements to the right of way in order to construct a driveway for such purposes.

FINDINGS OF FACT

Based on the pleadings, the admitted trial exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues.

Plaintiff Richard Zygala is the owner of property located at 23 Washington Avenue in Winthrop, Massachusetts. His neighbors, Defendants Joseph and Renee Pike, own the property located at 25 Washington Avenue in Winthrop. The Defendants' lot has frontage along Washington Avenue, but the Plaintiff's lot lacks frontage. It was created as a "back lot" behind the Defendants' lot by a subdivision plan, dated December 1931 and recorded with the Suffolk Registry of Deeds (the "Registry") at Book 5327, Page 999 (the "1931 Plan"). The Plaintiff's lot is shown as "Lot B" on the 1931 Plan, and the Defendants' lot is shown as "Lot A." At issue in this lawsuit is a ten-foot right of way, shown on the 1931 Plan as running along the westerly side of Lot A (the "Right of Way") between Lot B and Washington Avenue.

Lot A was conveyed to Defendants on June 14, 1977, "subject to a right of way 10 feet wide on the westerly side of the above described premises for the benefit of Lot B as shown on [the 1931 Plan]." [Note 3] Lot B was conveyed to Plaintiff on July 11, 1978, "together with the right of way in a ten foot strip of land on Lot A from Lot B to Washington Avenue as more specifically set forth in [the 1931 Plan]." [Note 4] No other restrictions or limits on the scope or purpose of the Right of Way are stated in the deeds. [Note 5]

The evidence demonstrates that at least since June of 1977, when the Defendants acquired Lot A, the Right of Way has not been used for vehicular access or travel to Lot B. Since at least June of 1977 through the present, the Right of Way has been improved with a three-foot wide concrete walkway, with two sets of concrete steps leading down a steep slope toward Lot B. [Note 6] The concrete walkway is lined on both sides with grass and some shrubbery. Until June of 1988, a large tree was located within the Right of Way near its intersection with Washington Avenue. [Note 7] In its current state, the Right of Way is unsuitable for vehicular passage to Lot B. The Plaintiff parks his car on Washington Avenue, although during snow emergencies when a parking ban is in effect, Plaintiff has occasionally parked his vehicle at the north end of the Right of Way, just above the first set of concrete steps. Plaintiff testified that he now wishes to remove the concrete walk and steps, and re-grade and surface the Right of Way for a driveway, so that he can access his property by car. He testified that he intends to pave about eight feet of the width of the Right of Way, leaving about a foot on each side for snow storage. Plaintiff already has obtained a driveway curb cut permit, and has installed the curb cut on Washington Avenue.

DISCUSSION

Although Defendants admit that their land is burdened by the express Right of Way easement benefiting Plaintiff's lot, they contend that use of the Right of Way is restricted to pedestrian travel by foot, consistent with the long existence of the concrete walkway within the Right of Way. They argue that the partial obstruction of the Right of Way by the large tree is further evidence that only foot travel was contemplated at the time the easement was created. These on-the-ground conditions since 1977, however, have not been shown to be the same as those at the time the Right of Way was created. Indeed, both Zygala and Pike admit that they don't know what the conditions before they bought their respective properties. More importantly, the express easement described in the Parties' respective deeds, contains no limitation on the mode of travel permitted within the Right of Way.

"The extent of an easement depends on the circumstances of its creation … When created by conveyance, the grant or reservation 'must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.'" Cannata v. Berkshire Natural Resources, Inc., 73 Mass. App. Ct. 789 , 795 (2009) (quoting Lowell v. Piper, 31 Mass. App. Ct. 225 , 230 (1991) (alteration in original)). Here, the easement granted is an unqualified "right of way in a ten foot strip of land on Lot A from Lot B to Washington Avenue as more specifically set forth in [the 1931 Plan]." The 1931 Plan shows a ten-foot wide right of way running along the western boundary of Lot A from Lot B to Washington Avenue, with no indication of any on the ground conditions, and no further description of the Right of Way. Nor was there any evidence produced at trial regarding the circumstances under which the Right of Way was created, or as to the conditions which then existed on the ground. Thus, even if the evidence permits an inference that a tree blocked a portion of the Right of Way at the time the Right of Way was first created, this circumstance does not alter the plain language used in the instrument. When, as here, the language used in the instruments creating the easement is "clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence to prove that the parties intended something different.'" [Note 8] Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (quoting Cook v. Babcock, 61 Mass. 526 , 7 Cush. 526 , 528 (1851).

Further, the law in Massachusetts is well-settled that an easement granted in general terms, and without express limitation or restrictions, is available for the "the reasonable uses to which the dominant estate may be devoted." Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 273 (1913); Cannata, 73 Mass. App. Ct. at 795 ("It is well established that an 'easement is not to be limited to such use as seemed likely to be made about the time of the conveyances which created it. In the absence of express limitations, . . . a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.'" (quoting Tehan v. Security Natl. Bank of Springfield, 340 Mass. 176 , 182 (1959)). Even where a particular manner of use has been made of an easement since its creation, an easement granted in general terms is available for all reasonable uses consistent with the normal development of the dominant estate, as those uses may change over time. See Restatement (Third) of Property (Servitudes) § 4.10 (2000) ("The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude."). Therefore, even if it had been proved that the walkway was in existence in at the time the Right of Way easement was first granted, and that from that time the Right of Way has been used exclusively for pedestrian access, such facts alone cannot prevent the Plaintiff's reasonable use of the Right of Way for vehicular access.

Several reported appellate cases are in accord. In Hodgkins v. Bianchini, the Supreme Judicial Court found that an easement for a "cart road to pass to and from the main street" is not restricted in "use to horse drawn vehicles or limit[ed] . . . to the width of vehicles then in common use." 323 Mass. 169 , 172 (1948). Similarly, an easement used only for farming purposes at the time of conveyance is not thereafter restricted only to farming uses, but instead is a grant of a general right of way. Parsons, 216 Mass. at 273. And the grant of a right of way, although used originally only to access an old cottage and barn by foot and horse-drawn carriage, encompasses later uses by automobiles to access a four-car garage. Mahon v. Tully, 245 Mass. 571 , 573 (1923) ("The reservation and the grant, so far as any evidence discloses, are in the most general terms without limitation or restriction. Such a way is not limited to the purposes for which the dominant estate was used at the time the way was created.").

Here, the Right of Way granted in Plaintiff's deed is unrestricted in scope, purpose, or manner of use, as it simply provides "right of way in a ten foot strip of land on Lot A from Lot B to Washington Avenue as more specifically set forth in [the 1931 Plan]." The language granting the Right of Way is in the most general terms possible; it contains no limitations on the manner, frequency, or intensity of use that the dominant estate may make of the easement. The Right of Way at issue in the instant case is, thus, unlike the easement at issue in Clarkin v. Duggan, 292 Mass. 263 (1935), the case relied upon by Defendants, where the language used in the grant of easement expressly limited the use of the right of way to "teams only." [Note 9]

The easement language at issue in Doody v. Spurr, is also distinguishable from the Right of Way language here. In Doody, where the subject deed specified that the right of way was "over the concrete walk and over the gravelled driveway," the Supreme Judicial Court found that such language "manifestly limited [the grant] to . . . a right of way which then consisted of a foot walk and a driveway as they were then constructed and located upon the servient estate." 315 Mass. 129 , 132-34 (1943). In contrast, the language granting the Right of Way here does not limit the grant to any specified physical conditions on the servient estate such as a walkway. [Note 10] Instead, the granting language is broad and general, simply providing "a right of way 10 feet wide."

Because the Right of Way was granted in general terms, and without express limitation or restrictions, it is to be interpreted "as meaning 'an easement for all purposes of ingress and egress common to a way.'" Reynolds v. Hyman, 86 Mass. App. Ct. 1123 , *2 & n.13 (2014) (quoting Deacy, 344 Mass. at 327) (Unpublished Rule 1:28 Decision). Consequently, I find that Plaintiff, as owner of the dominant estate, has a right to use the Right of Way for vehicular access to his lot from Washington Avenue.

Moreover, under settled case law, the Plaintiff has the right to construct a driveway within the Right of Way area in order to enjoy full use of the easement. See, Murphy v. Olsen, 63 Mass. App. Ct. 417 , 423 (2005) ("'[w]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication.'" (quoting Anderson v. DeVries, 326 Mass. 127 , 134 (1950)); see also Hodgkins, 323 Mass at 173 ("The right to use the 'Lane' includes the right to make reasonable repairs and improvements."); Walker v. E. Williams & Merrill C. Nutting, 302 Mass. 535 , 543 (1939) ("The owner of a right of way has the right to enter upon the servient estate on which no actual way has been prepared and constructed and to make such changes therein as will reasonably adapt it to the purposes of a way, having due regard to the rights of others who may have an interest in the way."); Chatham Conservation Found., Inc., 56 Mass. App. Ct. at 589 ("[T]he right to pass and repass has been found to include all rights reasonably incidental to the enjoyment of the right to pass, including the right to make reasonable repairs and improvements to the right of way."). All of these cases recognize that the right to use a right of way easement includes the right to make improvements as will reasonably adapt the easement area "to the purposes of a way," including constructing the way. The Plaintiff is therefore entitled to remove the concrete walk and steps, and re-grade and surface the Right of Way to create a driveway, so long as such changes do not "cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment." Restatement (Third) of Property (Servitudes) § 4.10. [Note 11]

CONCLUSION

Based upon the facts I have found, and for the reasons discussed, I find that Plaintiff is entitled to a declaratory judgment that his Lot B has the benefit of an express right of way easement of record across Defendants' Lot A that is not limited in its scope by the terms of the grant, and is thus available for all purposes as are reasonably necessary to the full enjoyment of Lot B, including use of the right of way for vehicular access to and from Washington Avenue. The easement rights appurtenant to Lot B also encompass the right to make improvements to the right of way, as will reasonably adapt it to use as a vehicular driveway to serve Lot B.

Judgment shall enter accordingly.