ZINTA BETTS and KENNETH BETTS vs. ALLAN B. SMITH and JULIE L. SMITH

In this action, plaintiffs Zinta and Kenneth Betts ("the Plaintiffs") claim that their property located at 74 Lakeside Avenue, Lakeville, Massachusetts ("Plaintiffs' Property") has the benefit of an easement to Lakeside Avenue over the intervening property of defendants Allan B. and Julie L. Smith, as Trustees of the Smith Living Trust u/d/t dated July 15, 2015 ("the Defendants" and "the Trust" respectively), located at 76 Lakeside Avenue, Lakeville, Massachusetts ("Defendants' Property"). For the reasons set forth below, this court agrees.

PROCEDURAL HISTORY

The Plaintiffs filed a verified complaint in this matter on December 28, 2016, together with a motion for a temporary restraining order and a motion for a preliminary injunction, seeking to enjoin the Defendants from blocking the Plaintiffs' access to the Plaintiffs' Property. The complaint asserts one count for a declaratory judgment that the Plaintiffs have the right to use the existing driveway on the Defendants' Property to access the Plaintiffs' Property. [Note 1] On the same date that the complaint and motions were filed, the court (Speicher, J.) allowed the Plaintiffs' ex parte motion for a temporary restraining order and issued that order, together with a summons and an order of notice for a January 6, 2017 hearing on Plaintiffs' motion for a preliminary injunction.

Service was effected on December 30, 2016. However, the Defendants neither appeared at the January 6, 2017 hearing, nor otherwise responded to the preliminary injunction motion. An injunction was issued by the court (Cutler, J.) on January 11, 2017, barring the Defendants and their agents from interfering with the use of the existing driveway by the Plaintiffs, their guests, and invitees through the Defendants' Property from Lakeside Avenue to the Plaintiffs' Property, and requiring the Defendants to immediately remove the chain placed across that driveway and to remove or relocate pallets of stone blocking the Plaintiffs' access to the Plaintiffs' Property.

An amended verified complaint was filed on June 3, 2019 for the sole purpose of adding the Defendants in their capacities as Trustees of the Trust, which holds record title to the Defendants' Property. Plaintiffs' motion for summary judgment and supporting papers were filed on June 21, 2019. The Defendants' opposition thereto was filed on July 22, 2019. A hearing on the motion was held on August 9, 2019, at which counsel for both parties appeared and argued. After that hearing, a supplemental memorandum of law was filed by Defendants on September 3, 2019. [Note 2] Those additional memoranda having been considered by the court, this memorandum of decision follows.

UNDISPUTED FACTS

The following facts established in the record are undisputed or are deemed admitted.

The Parties

1. The plaintiffs Zinta Betts and Kenneth Betts are the owners of real property located at 74 Lakeside Avenue, Lakeville, Massachusetts, by virtue of a deed dated October 26, 2016 and recorded at the Plymouth County Registry of Deeds ("the Registry") on November 4, 2016 at Book 47705, Page 268. Plaintiffs' Appendix ("App."), Ex. 14.

2. The defendants Allan B. Smith and Julie L. Smith, as Trustees of the Smith Living Trust u/d/t dated July 15, 2015 are the owners of real property located at 76 Lakeside Avenue, Lakeville, Massachusetts by virtue of a deed dated July 15, 2015 and recorded at the Registry at Book 45920, Page 112 ("Defendants' Property"). Defendants' Memorandum In Opposition To Plaintiffs' Motion For Summary Judgment ("Opposition"), Ex. F.

Title To Plaintiffs' Property

3. Plaintiffs' Property and Defendants' Property were held in common ownership by one Annie P. Kelly ("Ms. Kelly") in the early 1920s. Plaintiffs' Statement of Material Facts ("PSMF") ¶ 2.

4. Ms. Kelly conveyed what is now Defendants' Property to Willard C. and Alice B. Hitchcock ("the Hitchcocks") by deed dated December 22, 1923 and recorded in the Registry at Book 1452, Page 429 ("the 1923 Deed"), describing the property conveyed therein as "part of my homestead farm" and "[r]eserving a right of way fifteen (15) feet in width on the southerly side of the above described lots and extending form Lakeside Ave. North 84° West seven hundred and fifty-one feet; thence North 10° 15' West across said lot to the remaining land of the grantor." App. Ex. 1.

5. Ms. Kelly's former husband, John Kelly ("Mr. Kelly"), conveyed what is now the Plaintiffs' Property to the Hitchcocks by deed dated July 23, 1945 and recorded in the Registry at Book 1891, Page 127, at which time Mr. Kelly expressly extinguished the easement created in the 1923 Deed: "My intention now also being to extinguish the easement which was reserved in the last mentioned deed to me as extending through the aforementioned cottage lot of the grantees and from the aforementioned cottage lot of the grantees and from thence easterly 15 feet wide into Lakeside Avenue . . . so that the grantees may own not only this granted lot but that which they already hold including that strip 15 feet wide extending easterly in unrestricted ownership with no encumbrances whatsoever." App. Ex. 2.

6. Plaintiffs' Property and Defendants' Property remained in common ownership of the Hitchcocks until 1953 when Plaintiffs' Property was conveyed to Willard C. Hitchcock, Jr. and Audrey Hitchcock ("the Hitchcocks, Jr.") by deed dated July 24, 1953 and recorded in the Registry at Book 2286, Page 262, including "a right of way 15 feet wide along the Southerly side of the land described in [the 1923 Deed] and extending from Lakeside Avenue North 84° West 170 feet, and thence Northerly along the Easterly side of the land described in said [1923 Deed] 39 feet more or less to the land hereinbefore conveyed." App. Ex. 3.

7. In 1965, the Hitchcocks, Jr. conveyed Plaintiffs' Property to William R. and Lucille A. Sharples ("the Sharples") by deed dated May 26, 1965 and recorded at the Registry at Book 3208, Page 337 "together with a right-of-way over an existing road leading over land of said Alice B. Hitchcock, et al. from Lakeside Avenue to the granted land." App. Ex. 4.

8. At the time of the 1965 conveyance to the Sharples, the Hitchcocks, Jr. did not hold title to the land of Alice B. Hitchcock (Defendants' Property) over which they granted the easement to the Sharples.

9. The Hitchcocks, Jr. acquired title to the Defendants' Property by deed from Alice B. Hitchcock to them dated June 27, 1967 and recorded at the Registry at Book 3374, Page 687. Opposition Ex. D.

10. The Sharples deeded the Plaintiffs' Property and another lot to themselves as Trustees of the Sharples Family Trust u/d/t dated April 5, 1995 by deed of the same date recorded at the Registry at Book 13526, Page 320. App. Ex. 11.

11. As described above, Judith Elizabeth Ball ("Ms. Ball"), Successor Trustee of the Sharples Family Trust, conveyed the Plaintiffs' Property to the Plaintiffs in 2016. App. Ex. 14.

Title To Defendants' Property

12. Picking up from the conveyance to the Hitchcocks, Jr. in 1967 described above, the Hitchcocks, Jr. conveyed Defendants' Property to Marcel and M. Jeanne Prefontaine ("the Prefontaines") by deed dated May 10, 1968 and recorded at the Registry at Book 3441, Page 207 ("the 1968 Deed"), subject to "a right of way 15 feet wide along the southerly side of the granted premises extending from Lakeside Avenue North 84° West 170 feet and thence northerly along the easterly side of the granted premises 39 feet more or less, to land now or formerly of William R. Sharples, et ux." App. Ex. 5.

13. Mr. Hitchcock, Jr., as Administrator of his father's estate, executed a deed on the same date conveying the same property subject to the same easement to the Prefontaines and recorded at the Registry at Book 3441, Page 209. Id.

14. The Prefontaines conveyed Defendants' Property to Andrew J. and Dianne A. Turner ("the Turners") by deed dated June 17, 1977 and recorded at the Registry at Book 4277, Page 738. App. Ex. 6.

15. The Turners conveyed Defendants' Property to Jean P. and Pamela V. Trahan ("the Trahans") by deed dated November 8, 1977 and recorded at the Registry at Book 4362, Page 14. App. Ex. 7.

16. The Trahans conveyed Defendants' Property to Robert G. and Rona J. Couet by deed dated May 9, 1979 and recorded at the Registry at Book 4653, Page 237. App. Ex. 8.

17. Robert G. Couet conveyed Defendants' Property to Rona J. Couet by deed dated May 7, 1985 and recorded at the Registry at Book 6096, Page 177. App. Ex. 9.

18. Rona J. McKay, formerly Rona J. Couet, conveyed Defendants' Property to Dennis A. McKay and Rona J. McKay ("the McKays") by deed dated November 16, 1992 and recorded at the Registry at Book 11427, Page 34. App. Ex. 10.

19. The McKays conveyed Defendants' Property to Defendants by deed dated September 5, 1996 and recorded at the Registry at Book 14635, Page 224. App. Ex. 12.

20. Each of the conveyances of Defendants' Property since the 1968 Deed contains substantially the same language as that set forth in the 1968 Deed subjecting Defendants' Property to an easement fifteen feet wide.

21. Defendant Allan B. Smith testified at his deposition that he was aware of an easement for the benefit of Plaintiffs' Property over the driveway on Defendants' Property, App. Ex. 17 at p. 32, and knew that the then owners of Plaintiffs' Property were using that driveway before Defendants purchased Defendants' Property. Id. at 34-35, 79.

22. Defendant Allan B. Smith testified that he knew that one could not drive a car from Lakeside Avenue to the Plaintiffs' Property without going over the driveway on Defendants' Property. Id. at 45.

23. Defendant Julie L. Smith testified that, after they purchased Defendants' Property, she and her husband gave the Sharples permission to continue to use the driveway on Defendants' Property. Opposition, Ex. G at 63-64, 70.

24. The existence of easements over Defendants' Property was a factor in Defendants' valuation of Defendants' Property before purchasing it. Id. at 31-32.

The Use Of The Driveway

25. Plaintiffs submitted the Affidavit Of Judith Elizabeth Ball containing the following undisputed facts: (a) that the Plaintiffs' Property had been owned by Ms. Ball's aunt and uncle since 1965; (b) that Ms. Ball visited the Plaintiffs' Property hundreds of times from 1965 until just prior to her sale of the Plaintiffs' Property to the Plaintiffs in 2016; (c) that, when visiting the Plaintiffs' Property, she accessed it over a paved driveway that passed from Lakeside Avenue over Defendants' Property, turning onto her aunt's and uncle's property after passing the Defendants' garage; (d) that this was the only access to the home on Plaintiffs' Property; (e) that there has never been any other path or driveway leading to or from Plaintiffs' Property; and (f) that the owners of Plaintiffs' Property and their guests have used this access for over 52 years. App. Ex. 15.

26. At the hearing on this matter, counsel for Defendants agreed that there was no dispute that the existing driveway had been the sole source of access to Plaintiffs' Property for 52 years.

DISCUSSION

In their summary judgment motion, Plaintiffs argue that their right to access Plaintiffs' Property over the driveway located on Defendants' Property is based on a recorded easement, a prescriptive easement, or an easement by necessity. Defendants argue that Plaintiffs do not have an express easement because the grantor did not own Defendants' Property when he purported to convey an easement over it, do not have a prescriptive easement because Plaintiffs have failed to establish that the use of the driveway was not permissive, and do not have an easement by necessity because Plaintiffs' Property is not landlocked. While the court agrees with Defendants regarding Plaintiffs' claims to an express easement or an easement by necessity, it further concludes that Plaintiffs have established a prescriptive easement to use the driveway on Defendants' Property.

Plaintiffs' claims to an express easement or an easement by necessity do not require detailed analysis. The deed creating the express easement over the driveway on which Plaintiffs rely is the 1965 deed from Mr. Hitchcock, Jr. to the Sharples, which grants "a right of way over an existing road leading over land of said Alice B. Hitchcock, et al. from Lakeside Avenue to the granted land," i.e., over Defendants' Property. At the time of that conveyance, title to Defendants' Property was not in Mr. Hitchcock, Jr., but in his mother, Alice. Since "[o]ne cannot convey what one does not own," O'Donoghue v. Commonwealth, 93 Mass. App. Ct. 156 , 163 (2018), quoting Bongaards v. Millen, 440 Mass. 10 , 15 (2003), that grant was ineffective to create an express easement over the driveway on Defendants' Property.

Regarding Plaintiffs' claimed easement by necessity, "[t]he party claiming an easement by necessity has the burden of establishing that the parties intended to create an easement that is not expressed in the deed." Kitras v. Town of Aquinnah, 474 Mass. 132 , 139 (2016) quoting Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105, 187 N.E. 227 (1933). "A presumption of easement by necessity arises upon a showing of the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked." Id. at 140. "[T]he necessity of the easement for the enjoyment of the land conveyed is not an absolute physical necessity, but no more than a reasonable necessity." Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933). Here, when the Hitchcocks severed Plaintiffs' Property from Defendants' Property in the 1953 conveyance to the Hitchcocks, Jr., they granted an express easement providing access from Lakeside Avenue to Plaintiffs' Property, albeit one that was never constructed. Plaintiffs did not carry their burden of establishing necessity arising from that severance: the grant included an express access easement and there was no evidence, for example, from a qualified expert as to the limitations imposed by the dimensions of the express easement (in particular, Plaintiffs point to a 90° turn) such that this court could conclude that other access should be implied as reasonably necessary.

Turning to Plaintiffs' prescriptive easement claim, the creation of such an easement is governed in part by G.L. c. 187, §2, which provides that "[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years." The common law requires "clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous for a period of no less than twenty years." Smaland Beach Association v. Genova, 94 Mass. App. Ct. 106 , 114 (2018), quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); accord Ryan v. Stavros, 348 Mass. 251 , 263 (1964) ("There was no open, notorious, continuous and adverse use for twenty years."); Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003) ("As with adverse possession, the use must be open, notorious, continuous and adverse.") (citations omitted). Unlike claims of adverse possession, there is no requirement that the use be exclusive. See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) ("It is not necessary, on the other hand, for one claiming an easement by prescription to show that he use has been ‘exclusive' in that sense."); Boothroyd, 68 Mass. App. Ct. at 44 n. 9 ("A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement."). "Whether the elements of the claim have been satisfied is, in a given case, essentially a factual question for the trial court." Boothroyd, 68 Mass. App. Ct. at 41 n. 3 (citations omitted). Accord Martha's Vineyard Land Bank v. Taylor, 93 Mass. App. Ct. 1116 (2018) (Rule 1:28 Opinion).

"The burden of proving every element of an easement by prescription rests entirely with the claimant." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009), quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Accord Boothroyd, 68 Mass. App. Ct. at 44 ("John, as the claimant, bears the burden of proof on each and every element mentioned above."); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) ("each plaintiff has the individual burden of establishing a prescriptive right of use of the beachfront of lots 10 and 11."). "[L]ongtime, continuous use, spanning more than twenty years, trigger[s] the presumption that the use was nonpermissive." Smaland, 94 Mass. App. Ct. at 115, citing Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, Inc., 347 Mass. at 763. Accord Rotman, 74 Mass. App. Ct. at 589, quoting Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-531 (1987) ("The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained."). "Once the presumption arises, the landowner has the burden of rebutting it by showing that the use was permissive." Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827 (1981).

The undisputed evidence here, in the form of Ms. Ball's affidavit, established that the driveway over the Defendants' Property has been the sole source of access to the Plaintiffs' Property since 1965, some 51 years before this action was commenced, used by Ms. Ball, her aunt and uncle (the former owners of Plaintiffs' Property) and their guests hundreds of times over that period. Because of this history of use for well over twenty years, the Plaintiffs have the benefit of the presumption described above. The burden of proof thus shifted to the Defendants to show that the use by the Plaintiffs' predecessors in title was permissive. The only evidence of permission was deposition testimony to the effect that the Defendants gave the Sharples permission to use the driveway after the Defendants acquired the Defendants' Property in 1996. By then, the Sharples had been using the driveway for 31 years and had already acquired prescriptive rights over it. On this record, Defendants have failed to rebut the presumption.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, Plaintiffs' Motion for Summary Judgment is ALLOWED. Summary judgment shall enter on Plaintiffs' complaint declaring that Plaintiffs' Property has the benefit of an appurtenant easement over the existing driveway on the Defendants' Property upon the filing and approval of a plan suitable for recording showing the location of the easement. Plaintiffs are to prepare and submit such a plan to the court and Defendants by October 18, 2019.