THOMAS DOYLE and KAREN JACKSON-DOYLE v. CHRIS J. WARRINGTON and MARCIA R. WARRINGTON.

Thomas Doyle and Karen Jackson-Doyle (the "Doyles") and Chris J. Warrington and Marcia R. Warrington (the "Warringtons") are the respective owners of adjoining lots in Sandwich that for many years were owned in common by Humbert Ricupero, and for many years subsequently were owned by different members of the Ricupero family. A driveway, with utilities under it, including a septic system serving the Warringtons' property, meanders across the property line from the Doyles' property to the Warringtons' property, before meandering back to the Doyles' side of the lot line. The encroachment of the driveway and the utilities beneath it onto the Warrington property is the focus of this dispute. The Doyles, claiming an easement by estoppel, easement by implication, and prescriptive easement, seek to establish the legal standing of the section of driveway, and utilities beneath it, that encroach onto the Warrington property.

The Doyles' complaint, as amended, asserts a count for easement by estoppel (Count I), a count for easement by implication (Count II), and a count for easement by prescription with respect to the utilities located under the driveway, including a water line and a portion of a septic system (Count IV). [Note 1]

The Doyles now assert by a motion for summary judgment that based on the undisputed material facts they are entitled to a judgment that they possess either an easement by implication or by estoppel to maintain the driveway, and that they have established a prescriptive easement to maintain the utilities. A hearing was held on the motion for summary judgment before me on April 2, 2019, at the conclusion of which I took the motion under advisement.

For the reasons set forth below, the plaintiffs' motion for summary judgment is ALLOWED against the plaintiffs and for the defendants with respect to Count I of the complaint as amended, and is otherwise DENIED.

FACTS

The record discloses the following undisputed facts. Humbert Ricupero purchased adjoining lots in Sandwich denominated as Lots 7 and 8, with frontage on Salt Marsh Road, in 1955. In 1965, he recorded a plan, approved by the Sandwich Planning Board pursuant to G. L. c. 41, § 81P, (the "1965 plan") by which he reconfigured the lots, creating a jog in the lot line between them, apparently to accommodate a house he had built on both sides of the previous lot line. At the time of this re-division of the lots into Lots 7A and 8A, there was a driveway servicing the house on the part of the property that became Lot 7A. The driveway is shown on the 1965 plan as entering the lot from Salt Marsh Road, encroaching for part of its length onto Lot 8A by crossing over the new jog in the lot line, and then crossing back into Lot 7A where it ends near the house shown on the 1965 plan.

In 1976, Humbert Ricupero conveyed Lot 8A, also known as 20 Salt Marsh Road, to a nephew, Pasquale Todisco and his wife. The 1976 deed described Lot 8A by reference to the 1965 plan, and the metes and bounds description in the deed described Lot 8A as being bounded by Lot 7A (now also known as 18 Salt Marsh road) as shown on the plan, and by Salt Marsh Road. The deed did not describe or mention the driveway shown on the 1965 plan, nor did it reserve to the grantor any rights in the driveway where it encroached on Lot 8A. In 1987, Humbert Ricupero, with appropriate permits, installed a subsurface wastewater disposal system ("septic system") on Lot 7A. A portion of the septic system encroached under the driveway onto Lot 8A. At some time prior to 1996, he installed a water line that also encroached in part on Lot 8A under the driveway. In 2004, Lot 8A was conveyed out of the Ricupero-Todisco family to the Warringtons. In 2016, Lot 7A was conveyed out of the Ricupero family to the Doyles. Neither the deeds to the Warringtons and the Doyles, nor any intervening deeds within the family, refer to any reserved or granted rights with respect to the encroaching driveway or any utilities beneath it. None of the deeds describe any part of either of the properties as being bounded by the driveway.

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "[a]n adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr., supra, 436 Mass. at 648; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr., supra, 436 Mass. at 644. The moving party meets this burden "by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991). Where the opposing party has the burden of proof at trial, the moving party 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." Id. at 716. Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989).

The Doyles have the burden of proof at trial to show that they are entitled to a declaration that they possess an easement by implication or estoppel to maintain the driveway and that they have acquired an easement by prescription for the utilities under the driveway. As such, on summary judgment the plaintiffs must show that there is an absence of a triable issue whether they can establish the elements of an easement by implication or estoppel and that they have acquired prescriptive rights. If the plaintiffs make such a showing, the Warringtons must demonstrate that there is a genuine dispute of material facts as to any of the elements necessary to establish the Doyles' claim.

Count I: Easement by Estoppel.

Generally, the doctrine of easement by estoppel is available to estop a grantor of land bounded by a street or way from denying the existence of, and access to the way, to his grantee. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481 (1989). The doctrine is further applicable "where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan." Id., at 482, quoting Goldstein v. Beal, 317 Mass. 750 , 755 (1945). The Massachusetts courts have refused to recognize easements by estoppel on any grounds broader than those stated in Patel. Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355-356 (2007).

As presently recognized, the doctrine of easement by estoppel is available only to redress "the rights of grantees or their successors in title against their grantors and their successors in title." Patel v. Planning Bd. of North Andover, supra, 27 Mass. App. Ct. at 482. "Because the plaintiff's claim is not against a grantor or a predecessor in title, the line of cases involving easement by estoppel have no application here." LaFreniere v. Byers, 90 Mass. App. Ct. 1122 (2016) (Rule 1:28 Unpublished Decision) at slip op. p. 6.

Even aside from the fact that the plaintiff seeks to establish an easement by estoppel for the benefit of a successor in interest of the grantor, and not the grantee, the relevant deeds do not disclose any description of the "way" to which the plaintiffs seek to establish a right of access, namely, the driveway. The mere fact that the driveway is shown on the 1965 plan is not enough to create a dispute of fact as to whether it was a way for which rights of access were reserved. See Patel, supra, at 480 ("The mere approval and recording of a subdivision plan which refers to a roadway does not convey an easement in favor either of those owning property abutting the subdivision or the public generally").

Accordingly, since the Doyles' easement by estoppel claim fails as a matter of law, summary judgment will be entered for the Warringtons on Count I.

Count II: Easement by Implication.

"An implied easement is 'founded on the idea that it is the purpose of the parties that the conveyance shall be beneficial to the grantee,'" even if it had not been expressed in the instrument of conveyance. Ward v. McGlory, 358 Mass. 322 , 325, (1970), quoting Orpin v. Morrison, 230 Mass. 529 , 533 (1918). "Whether an easement by implication exists is a matter of the presumed intent of the parties, which is 'to be gathered from the language of the instruments when read in the light of the circumstances attending their execution.'" LaFreniere v. Byers, supra, 90 Mass. App. Ct. 1122 , quoting in part Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990).

The plaintiffs strain the concept by asking the court to determine, as a matter of law, that it was the intention of the grantor, Humbert Ricupero, to reserve an easement for himself when he deeded Lot 8A to his nephew and his nephew's wife in 1976. Leaving aside the question whether a grantor can benefit from a presumed intent to have reserved to himself an easement, when he could have done so explicitly had he so desired but failed to do so, there are certainly insufficient undisputed facts in the record to establish such an intent as a matter of fact or law. The "language of the instruments" is not helpful to the Doyles, as the 1976 deed to Humbert Ricupero's nephew does not describe Lot 7A or Lot 8A as being bounded by the "way" suggested by the Doyles, namely, the driveway. Nor is there any plausible argument that an easement by necessity, a type of easement by implication, can be established, at least not as a matter of law, where an easement is necessary to provide access to the nearest public way. The first part of the driveway, without the part encroaching on Lot 8A, provides access to Lot 7A from Salt Marsh Road. See Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 (1989) (lots entitled to endorsement as "approval not required under the subdivision control law" pursuant to G. L. c. 41, § 81P, where access was available onto lots from their frontage, although wetlands interfered with access to proposed location of houses on lots). There is, accordingly, a dispute of material fact with respect to the intent of the parties at the time of the 1976 conveyance.

Count IV: Easement by Prescription.

"[A] claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007); see also G.L. c. 187, § 2.

The burden of proving each element falls upon the party claiming title by adverse possession or easement by prescription. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). "The acts of the wrongdoer are to be construed strictly and 'the true owner is not to be barred of his right except upon clear proof.'" Tinker v. Bessel, 213 Mass. 74 , 76 (1912), quoting Cook v. Babcock, 65 Mass. 206 (1853). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

In support of their prescriptive easement claim, the Doyles offer only the undisputed facts that the septic system was installed in 1987 and the water line was installed prior to 1996. While it is certainly possible to establish a prescriptive easement with respect to underground utilities, in order to do so, one must present evidence establishing that the defendants or their predecessors knew of the installation and existence of the utilities; that aspects of the installation, such as vent pipes or junction boxes, are visible so as to make the existence of the utilities known; or other evidence to establish that the existence of the utilities under their property should have been obvious to the defendants or their predecessors. Foot v. Bauman, 333 Mass. 214 , 218 (1955) (evidence was sufficient to establish that existence of sewer line was obvious).

The Doyles offer no evidence beyond the dates of installation of the subject utilities.

They offer no evidence that the owners of Lot 8A were aware of the encroaching utilities, or that under the circumstances, the existence of the utilities would have been obvious to any owners of Lot 8A, such as by the existence of above-ground features of the utilities.

On the limited record before the court, it is inappropriate to grant summary judgment to either party on the prescriptive easement claim.

CONCLUSION

For the reasons stated above, the plaintiffs' motion for summary judgment is ALLOWED against the plaintiffs and for the defendants, the Warringtons, with respect to Count I, seeking an easement by estoppel, and Count I is hereby DISMISSED. The motion is DENIED with respect to Counts II and IV, there being a dispute of material fact with respect to proof of the elements of those claims. The court presently will schedule a pre-trial conference on the remaining counts.

So Ordered.