Home GIANNELLI MANAGEMENT AND DEVELOPMENT CORP. and EUGENIA GOMES v. MPA GRANADA HIGHLANDS, LLC, AND ANY AND ALL OTHER PERSONS CLAIMING ANY INTEREST IN THAT PAPER STREET KNOWN AS WINCHESTER STREET, MALDEN, MASSACHUSETTS.

MISC 17-000597

May 2, 2019

Middlesex, ss.

ROBERTS, J.

MEMORANDUM OF DECISION GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT.

INTRODUCTION

In this action, plaintiffs Giannelli Management And Development Corp. and Eugenia Gomes ("Giannelli" and "Gomes" respectively, and together, "the Plaintiffs") seek a judgment from this court declaring that the Plaintiffs are the owners of the fee in the way to which their properties abut on either side and that defendant MPA Granada Highlands, LLC ("MPA") and unidentified others have no rights in or over the way. In their motion for summary judgment, Plaintiffs request a determination as to MPA's rights, if any, over the way. By way of cross- motion, MPA seeks a summary judgment determining that it holds an easement by estoppel over the way that it has not abandoned. For the reasons set forth below, this court holds that, to the extent that any of MPA's property has the benefit of an easement by estoppel over the portion of the way at issue here, that easement has been extinguished. [Note 1]

PROCEDURAL HISTORY

This action was commenced with the filing of a complaint on October 19, 2017 ("the Complaint") alleging that the Plaintiffs, as the owners of land abutting a paper street, owned the fee in that street and that no others held rights over it. Discovery concluded on June 25, 2018 and cross-motions for summary judgment were filed by the Plaintiffs and MPA during September through December, 2018. A hearing on the cross-motions was held on March 6, 2018 and the parties were provided with the opportunity to submit additional briefs on discrete issues raised by the court. Those additional briefs having been filed and considered by the court, this memorandum of decision follows.

UNDISPUTED FACTS

The following facts established in the record and pertinent to the motion and cross-motion for summary judgment are undisputed or are deemed admitted.

1. Giannelli is the owner of Lots 263 and 264 as shown on a plan entitled "Plan of Linden Highlands Malden Mass. Surveyed Aug. 1873 Veazie Bros. Engrs. Scale 60 ft. to 1 inch" ("the 1873 Plan") and known as 65 Central Avenue, Malden, Massachusetts ("Giannelli Lots"). Plaintiffs' Statement Of Material Facts ("PSOMF") at Nos. 11, 12; Plaintiffs' Appendix In Support Of Their Motion For Summary Judgment ("P. App.") at 5-8, 29; Defendant MPA Granada Highlands' Statement of Undisputed Material Facts ("DSOMF"), No. 20; Defendant MPA Granada Highlands, LLC Appendix In Support Of Its Motion For Summary Judgment ("D. App."), at Exs. 8, 14, 20.

2. Gomes is the owner of Lot 1 as shown on Land Court Plan 12410B, also known as Lot 262 as shown on the 1873 Plan, and also known as 73 Central Avenue, Malden, Massachusetts ("Gomes Lot"). PSOMF No. 16, P. App. 9-12, DSOMF No. 19; D. App. Exs. 7, 8, 13, 19, 25, 27.

3. The Giannelli Lots abut Winchester Street as shown on the 1873 Plan on their southeasterly boundary and the Gomes Lot abuts Winchester Street on its northwesterly boundary. P. App. at 5-12, 29; D. App. Exs. 8, 13, 14.

4. Winchester Street at this location (hereinafter "the Paper Street") has never been constructed or dedicated for public use. PSOMF ¶ 27.

5. MPA is the record owner of real property commonly known as Altitude Apartments f/k/a the Granada Highlands in Malden, Massachusetts ("the MPA Property") by virtue of deeds filed on July 31, 2007 as Document Nos. 1450485 and 1450486 at the Middlesex South Registry District of the Land Court. PSOMF No. 17.

6. The Gomes Lot, the Giannelli Lots, the Paper Street, and some portion of the MPA Property (see D. App. Ex. 7 at ¶ 12(d)(iii)) [Note 2] share a common grantor, one Truman Towne. D. App. Ex. 7 at ¶ 12(d)(ii) and exhibits cited therein; DSOMF No. 23.

7. The 1873 Plan created 305 lots. DSOMF No. 18; P. App. 29; D. App. Ex. 8.

8. Of those 305 lots, 29 abut Winchester Street as it appears on the 1873 Plan: 162, 166, 167, 169, 171, 176, 262, 257, 256, 253, 252, 249, 248, 274, 273, 272, 271, 270, 269, 268, 267, 263, 161, 157, 154, 153, 150, 149, and 146. P. App. 29; D. App. Ex. 8.

9. Of the 29 lots that abut Winchester Street, 14 are located within the boundaries of the MPA Property. D. App. Ex. 7, ¶ 12(d)(i)(4)(b).

10. Of those 14 lots, all or portions of five of them (253, 256, 257, 268, 269), and the abutting section of Winchester Street, do not share common ownership through Truman Towne. D. App. Ex. 7, ¶ 12(d)(ii)(1); Ex. 15, 22.

11. On March 4, 1971, the Malden Redevelopment Authority ("the MRA") executed an Order Of Taking, subsequently recorded at the Middlesex South Registry of Deeds at Book 11964, Page 537 ("the Order of Taking"), P. App. 41-110; D. App. Ex. 6, with respect to real property shown on a plan entitled "Linden Highlands Project Malden Redevelopment Authority Malden (Middlesex) Massachusetts Norwood Engineering Co., Inc. Civil Engineers & Surveyors Scale 1" = 60' Date: 4 March 1971" ("the Taking Plan"). P. App. 110; D. App. Ex. 10.

12. As set forth in the Order of Taking, the MRA

"hereby takes for itself in fee simple by eminent domain for the purposes hereinbefore set forth, the areas located in the City of Malden hereinafter described, including all parcels of land therein, together with any and all easements, and rights appurtenant hereto, including the trees, buildings, and other structures standing upon or affixed thereto, and including the fee to the center of any and all streets, highways, and public ways, contiguous and adjacent to said areas, said areas being bounded and described in 'Annex A' attached hereto and made part hereof as though incorporated herein in full … ." P. App. 42-43; D. App. Ex. 6.

That portion of the 1873 Plan included in the 1971 taking is shown on the sketch attached hereto as Appendix A.

13. Annex A to the Order of Taking further stated:

"Meaning and intending to include within the aforesaid metes and bounds all the land enclosed therein, but excluding therefrom the following: a) Any and all easements of public highways and public easements of travel in and to any and all streets, highways and public ways in said Urban Renewal Area contiguous and adjacent to said Urban Renewal Area … ." P. App. 54-55; D. App. Ex. 6.

14. By deed dated May 26, 1972 and filed in the South Middlesex Registry District of the Land Court as Document No. 497857, the MRA deeded a portion of the land that it had acquired by virtue of the Order of Taking, along with other property owned by it, to Thomas J. Flatley ("Mr. Flatley"). D. App. Ex. 11; DSOMF No. 11.

15. Thereafter, a plan of land was prepared entitled "Subdivision Plan Of Land 'Granada Highlands' Malden, Mass. owned by Thomas J. Flatley Scale 1" = 60' August 3, 1972 Norwood Engineering Co., Inc. Civil Engineers 1414 Providence Pike, Norwood, Mass." ("the 1972 Subdivision Plan"). D. App. Ex. 5.

16. The 1972 Subdivision Plan includes additional property from other sources that was not a part of the 1873 subdivision plan. D. App. Ex. 7, ¶ 12(d)(iii); D. App. Exs. 5, 9.

17. The MPA Property consists of Lots One, Two and Three as shown on the 1972 Subdivision Plan. D. App. Ex. 7, ¶ 12(d)(iii).

18. Of the 305 lots shown on the 1873 Plan, all or portions of the following 120 lots are part of what is now the MPA property:

Portions of Lots 1-3, 6, 10-11, 23-24, 184, 280, 300, 301

All of Lots 4-5, 7-9, 12-22, 25, 177-183, 186, 193-260, 267-279, 304-305.

DSOMF No. 21.

19. A comparison of the 1873 Plan, the Taking Plan and the 1972 Subdivision Plan reveals (a) that approximately ½ of the MPA Property is outside the boundaries of the 1873 Plan, and (b) that the other streets shown on the 1873 Plan either connect directly to Central Avenue (Atlantic Avenue, Fuller Street, Glendale Street) or to another way (Glenmere Avenue), with the exception of Wyoma Street, which connects to Glenmere Avenue. D. App. Ex. 7, ¶ 12(d)(iii); D. App. Exs. 5, 9, 10; see Appendix A.

20. A sketch depicting the 1972 Subdivision Plan overlaid with the approximate location of both the 1873 Plan lines and the Taking Plan lines is attached hereto as Appendix B. As a result of the reconfiguration created by the 1972 Subdivision Plan, neither Winchester Street nor the lots abutting Winchester Street nor any other lots or streets as shown on the 1873 Plan continue to exist within the boundaries of the 1972 Subdivision Plan. D. App. Ex. 5.

21. On November 29, 1976, upon petition of Mr. Flatley as the registered owner of registered land within the confines of the MPA Property, the land court ordered that no person other than the petitioner had any rights to use those portions of paper streets within the perimeter of the registered land within the confines of the MPA Property. D. App. Ex. 7, ¶¶ 18-20; D. App. Ex. 33.

22. MPA is Mr. Flatley's successor in title to the MPA Property. PSOMF No. 10; D. App. Ex. 7, ¶ 12(d)(iii).

23. Granada Highlands ("Granada Highlands"), located on the MPA Property, is a gated residential apartment complex. PSOMF No. 18.

24. Granada Highlands is comprised of 13 apartment buildings that have a combined total of 919 multi-family apartment units and accessory surface parking. DSOMF No. 6.

25. The main entrance and exit to Granada Highlands is located approximately 200' south of the Paper Street on Kennedy Drive and Central Avenue, and includes a guard booth. PSOMF Nos. 48-49.

26. A six-foot chain link fence was erected by MPA's predecessors in title in or around 1993 ("the Fence"). PSOMF No. 41.

27. The Fence is set back approximately 10' from MPA's property line as it abuts the Giannelli Lots and the Gomes Lot. PSOMF No. 42.

28. According to Mr. John A. Nigro, the individual produced by MPA in response to a Rule 30(b)(6) deposition notice, P. App. 153, the Fence is a perimeter fence that goes around the entire property and its purpose is to restrict access and set a perimeter to the MPA Property. P. App. 172-173.

29. At no point in the Fence is there a gate or other access point through which a vehicle or pedestrian could pass through in order to access the Paper Street. PSOMF No. 44.

30. The MPA Property has a significant slope as it abuts the Gomes Lot and the Giannelli Lots. P. App. 142; D. App. Ex. 19.

31. For over thirty years, permanent parking spots for residents of Granada Highlands have abutted the Fence on its western side. PSOMF No. 45.

32. For over thirty years, no one from Granada Highlands has accessed, maintained, or used the Paper Street. PSOMF No. 46.

33. A plan entitled "ALTA/ACSM Land Title Survey Granada Highlands Malden, Mass. Scale 1" = 40' June 14, 2007 Harry R. Feldman, Inc. Land Surveyors 112 Shawmut Avenue Boston, Mass. 02118" ("the 2007 Plan"), D. App. Ex. 12, depicts conditions existing at the MPA Property as of June 15, 2007. PSOMF No. 54-55; D. App. Ex. 12.

34. The 2007 Plan, at sheet 3 of 5, depicts, among other things, the entrance/exit and guard booth at Kennedy Drive and the Fence and parking on the MPA Property as it abuts the Paper Street. D. App. Ex. 12.

35. Leaving aside the plan's references to abandonment, the Paper Street is shown on a plan entitled "Plan of Land in Malden, Mass. Hayes Engineering, Inc. Civil Engineers & Land Surveyors 603 Salem Street, Wakefield, MA 01880 Scale 1" = 20' August 29, 2017" ("the 2017 Plan"). PSOMF No. 20; P. App. 145; D. App. Ex. 19.

36. The 2017 Plan also reflects the location of the Fence and parking on the MPA Property, and of a deck, retaining wall and paved area within the confines of the Paper Street. PSOMF Nos. 21-22; D. App. Ex. 19.

37. Gomes has resided at the Gomes Lot since December, 1987. P. App. 140; D. App. Ex. 19.

38. At no time during Gomes' ownership of the Gomes Lot has anyone but residents or guests of the Gomes Lot or the Giannelli Lots used, maintained or accessed any portion of the Paper Street. P. App. 140; D. App. Ex. 19.

39. The construction shown on the 2017 Plan as "S&M RETWALL" and "DECK," referencing a retaining wall and deck, predate Gomes' acquisition of her property in 1987 and, during her ownership, have been used, accessed and maintained exclusively by Gomes and her family. P. App. 141; D. App. Ex. 19.

40. The paved area shown on the 2017 Plan has existed since Gomes had the area repaved in 2003. P. App. 141; D. App. Ex. 19.

41. From 1987 until 2003, a smaller portion of Winchester Street was paved and was used exclusively by Gomes and her family members as a driveway and parking area. P. App. 141; D. App. Ex. 19.

42. Since 2003, residents of the Gomes Lot and current and former residents of the Giannelli Lots have continually and openly used the paved area as a driveway and parking area. P. App. 141; D. App. Ex. 19.

43. Since 1987, Gomes and her family members have exclusively maintained the paved area as it has existed from time to time. P. App. 141; D. App. Ex. 19.

44. Since Gomes' acquisition of the Gomes Lot in 1987, she and her family have used the unpaved area of the Paper Street as a lawn, grilling area and wooded area, P. App. 141; D. App. Ex. 19, including the removal of several large trees in the wooded area. P. App. 142; D. App. Ex. 19.

45. For over 30 years, the portion of Winchester Street abutting the Giannelli Lots and the Gomes Lot has been landscaped, cleared of rubbish, debris, snow, overgrowth and maintained exclusively by the plaintiffs or their agents. PSOMF No. 37.

STANDARD OF REVIEW

Generally, summary judgment may be entered 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). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). 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. General Motors Corp., 410 Mass. 706 , 716 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

DISCUSSION

In their motion for summary judgment, Plaintiffs argue that MPA does not hold the fee in or an easement over the Paper Street and, even if it did hold an easement, that any such right was extinguished or abandoned. In its opposition and cross-motion for summary judgment, MPA argues that it holds an easement by estoppel over the Paper Street and that the Plaintiffs cannot prove that its easement has been abandoned. Alternatively, MPA argues that the issue of its intent to abandon its easement rights presents a dispute of material fact, thus defeating Plaintiffs' motion. MPA's easement rights, if any, and the extinguishment of those rights are addressed below.

Easement by Estoppel

Easements by estoppel fall into two general categories: those where a grantor conveys land bounded on a street or way, and those where the grantor conveys land with reference to a recorded plan on which the way is shown. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). "This principle of estoppel 'seems to have become a rule of law rather than a mere canon of construction.'" Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 678 (1965), quoting Teal v. Jagielo, 327 Mass. 156 , 158 (1951). MPA appears to base its claim on both categories of the rule. [Note 3]

Regarding the first, numerous cases have recognized that "when a grantor conveys land bounded on a street or a way, he and those claiming under him are estopped to deny the existence of such street or way." Casella v. Sneirson, 325 Mass. 85 , 89 (1949), quoted in Murphy, 348 Mass. at 677-678; Melrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Company, LLC, 89 Mass. App. Ct. 594 , 597 (2016); Post v. McHugh, 76 Mass. App. Ct. 200 , 202-203 (2010); Lane v. Zoning Bd. of Appeals, 65 Mass. App. Ct. 434 , 437 (2006); Patel, 27 Mass. App. Ct. at 481. "[T]he right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Casella, 325 Mass. at 89.

Regarding the second, "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." Goldstein v. Beal, 317 Mass. 750 , 755 (1945), quoted in Patel, 27 Mass. App. Ct. at 482. Accord Farnsworth v. Taylor, 75 Mass. 162 , 166 (1857) ("[W]here land is conveyed which is situate on a street or way, and reference is made in the deed of conveyance to a plan on which said street is delineated, the plan … is made a part of the deed, and estops the grantor and those claiming under him to deny the existence of the street as delineated on the plan … .").

In both cases, "where a right of way, as here, is created by estoppel, it must be appurtenant to the land conveyed. … A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant." Murphy, 348 Mass. at 678. Accord Taylor v. Martha's Vineyard Land Bank Commission, 475 Mass. 682 , 686 (2016), quoting Murphy, 348 Mass. at 678-679; Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 318 (2005), quoting Murphy, 348 Mass. at 675; Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 439 (2006) ("an appurtenant easement cannot be used as a passage to or from land that is not appurtenant … . "). Furthermore, in accord with the familiar maxim that one cannot convey rights in real estate that one does not own, the dominant and servient estates must have a common grantor. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 292 (2005) ("one may not grant what one does not own … easements can be created only 'out of other land of the grantor, or reserved to the grantor out of the land granted; never out of the land of a stranger.' Richards v. Attleborough Branch R.R. Co., 153 Mass. 120 , 122, 26 N.E. 418 (1891)."); Patel, 27 Mass. App. Ct. at 482 ("Both categories of cases deal with the rights of grantees or their successors in title against their grantors and their successors in title.").

There is no requirement that the way be in existence or in use. "This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated." Murphy, 348 Mass. at 678. "The rights also apply even if the way under consideration is obstructed, overgrown, and impassable." Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 54 (1980).

There is no requirement that the easement be necessary to the dominant estate. "The rights exist even if there are other ways, public or private, leading to the land." Melrose Fish and Game Club, Inc., 89 Mass. App. Ct. at 598, quoting Canton Highlands, Inc., 9 Mass. App. Ct. at 55. On the other hand, necessity can be a consideration in determining the extent of the easement beyond the way on which the property bounds. The right extends "by necessary implication, to such outlet or termination as will make the way available for its intended purpose." Fox v. Union Sugar Refinery, 109 Mass. 292 , 295 (1872) ("The law will imply in his favor the right to use the passageway upon which he is bounded, not only for the purpose of going back and forth upon it, but also for the purpose of reaching the public ways, by means of such other avenues as his grantor has, by his plan, represented to exist."). See also Prentiss v. Gloucester, 236 Mass. 36 , 52 (1920) ("the only necessity contemplated in ordinary cases is that of access to public highways"). "However, it is important to remember that 'reference to a plan like [the plans in this case], laying out a large tract, does not give every purchaser of a lot a right of way over every street laid down upon it.'" Jackson v. Knott, 418 Mass. 704 , 711 (1994), quoting Pearson v. Allen, 151 Mass. 79 , 81 (1890), and cases cited.

Applying these principles to the matter at hand, it seems likely that MPA would have had an easement by estoppel over Winchester Street with respect to those nine lots shown on the 1873 Plan that abut Winchester Street and that share a common grantor. However, the record does not contain the deeds in MPA's chain of title that show those lots being conveyed with language bounding on Winchester Street or referencing the 1873 Plan. As a result, a determination cannot be made with respect to those lots.

Equally problematic, MPA's title expert identifies lot 256 and portions of lots 253, 257, 268, and 269, as well as the portion of Winchester Street that abuts these lots, as not sharing common ownership through Truman Towne with Plaintiffs' and MPA's other property. D. App. Ex. 7, ¶ 12(d)(ii)(1), Ex. 22. The 1873 Plan shows that lot 257 directly abuts the Gomes Lot to the west, followed by lots 256 and 253; and, on the other side of Winchester Street, that lots 268 and 269 abut lot 267, which directly abuts the Giannelli Lots to the west. The record does not contain source materials from which the court can make an independent assessment of the assertion that these lots, and the abutting portion of Winchester Street, were not in common ownership with Towne's property. Assuming this assessment is correct, an easement over the portion of Winchester Street as it abuts those lots cannot have come into being for the benefit of Towne's property, because it did not share a common grantor with Towne's property. That fact in turn raises the issue of whether an easement by estoppel, interrupted by the intervening property of a stranger, can resume on the other side of the intervening land. If not, then the only lot now within the boundaries of the MPA Property that may have the benefit of an easement by estoppel over the Paper Street is lot 267; that is the only one of MPA's lots for which the abutting portion of Winchester Street was in common ownership with the Paper Street, not interrupted by property of a stranger.

In its supplemental submission, [Note 4] MPA also contends that its easement rights over the Paper Street derive from its ownership of other lots on other ways shown on the 1873 Plan. As with the nine lots abutting Winchester Street referenced above, there are no deeds in the record from which it could be determined that these lots were conveyed with language referencing the 1873 Plan. As a result, no determination can be made as to whether easements by estoppel were created. It also bears noting that all but one of the ways shown on the 1873 Plan connect directly to Central Avenue or to Glenmere Avenue, raising an issue as to whether an appurtenant right over Winchester Street was intended with respect to the lots abutting other ways. While one case cited by MPA, Farnsworth v. Taylor, 9 Gray 162 (1857), indicates that an easement is created over all ways shown on the plan, the other case, Fox, limits the right to "reaching the public ways, by means of such other avenues as his grantor has." Fox, 109 Mass. at 297. And, as noted above, there is a body of law establishing that a conveyance with reference to a plan of a large tract of land does not create rights appurtenant to all lots over all ways shown on that plan. See Jackson, 418 Mass. at 711.

Whatever issues exist regarding easements by estoppel for the benefit of lots shown on the 1873 Plan and now within the boundaries of the MPA Property, there can be no dispute that, if those rights exist, they are appurtenant to those lots only and cannot be used to access other property owned by MPA. See Murphy, 348 Mass. at 677-678. Winchester Street, including the Paper Street, cannot be used to access the approximately one-half of the MPA Property not shown on the 1873 Plan. See Appendix A. Nonetheless, for purposes of analyzing Plaintiffs' claims of extinguishment, the court will assume arguendo for the remainder of its decision that MPA has established an easement by estoppel over the Paper Street appurtenant to each of the lots shown on the 1873 Plan that are within the boundaries of the MPA Property, including those not sharing a common grantor.

Extinguishment

Plaintiffs argue that any easement over the Paper Street in favor of MPA was extinguished, citing to acts by Plaintiffs that would support extinguishment by prescription, Plaintiffs' Brief In Support Of Their Motion For Summary Judgment ("Plaintiffs' Brief") at 9, citing to acts by MPA that would support extinguishment by abandonment, Plaintiffs' Brief at 8- 9, and obsolescence. [Note 5] Plaintiffs' Brief at 10. In response, MPA argues that it is entitled to judgment in its favor on the issue of abandonment because the Plaintiffs cannot prevail on that claim at trial. MPA further contends that, at a minimum, there is a material issue of fact as to MPA's or its predecessors' intent to abandon their rights preventing the issuance of a summary judgment in the Plaintiffs' favor. MPA Memorandum at 12-17; MPA Supplemental Submission at 12.

Extinguishment by Prescription

The Restatement of Property (Servitudes) Third, § 7.7 (2000), entitled "Modification or Extinguishment by Prescription," states: "To the extent that a use of property violates a servitude burdening the property and the use is maintained adversely to a person entitled to enforce the servitude for the prescriptive period, that person's beneficial interest in the servitude is modified or extinguished." In Cater v. Bednarek, 462 Mass. 523 , 528 n. 16 (2012) (citations omitted), the Supreme Judicial Court cited to § 7.7 in support of the proposition that "[t]o wholly extinguish an easement by prescription, the 'acts of the servient tenant [must be] utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement' for at least the prescriptive period of twenty years." As stated in Post v. McHugh, 76 Mass. App. Ct. 200 , 204-205 (2010), quoting New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931), "[t]o extinguish easement rights, a servient tenant's adverse acts must render use of an easement 'practically impossible for the [twenty-year] period required for prescription.'" Furthermore, "[w]here the acts of the servient tenant render the use of only a part of a right of way impossible, the easement is extinguished only as to that part." Cater, 462 Mass. at 528 n. 16, quoting Yagjian v. O'Brien, 19 Mass. App. Ct. 733 , 736-737 (1985). Accord Pappas v. Maxwell, 337 Mass. 552 , 557 (1958).

Here, the record with respect to acts of the owners of Gomes, Giannelli, and their predecessors is based on evidence provided by Gomes, who acquired the Gomes Lot in 1987. [Note 6] A retaining wall and deck associated with the Gomes Lot and extending into the boundary of the Paper Street have been in existence since prior to Gomes' purchase of the Gomes Lot. The retaining wall and deck have been used, accessed and maintained exclusively by Gomes and her family. A portion of the Paper Street was paved when Gomes acquired the Gomes Lot. In 2003, Gomes repaved that and a larger area of the Paper Street, as shown on the 2017 Plan and Exhibit B to the Affidavit of Eugenia B. Gomes. D. App. Ex. 19. Since 2003, residents of the Gomes Lot and current and former residents of the Giannelli Lots have continually and openly used the paved area as a driveway and parking area. Gomes and her family members have exclusively maintained the paved area since 1987. During the same period, Gomes and her family have used the unpaved area of the Paper Street as a lawn, grilling area and wooded area. For over 30 years, the Paper Street has been landscaped, cleared of rubbish, debris, snow, overgrowth and maintained exclusively by the Plaintiffs or their agents.

To the extent that Gomes and her predecessors in title have maintained a retaining wall and deck within the confines of the Paper Street for in excess of 32 years, she has satisfied her burden of establishing acts that render the use of the easement "practically impossible" for the requisite period. Post, 76 Mass. App. Ct. at 205. As to that portion of the Paper Street, the Plaintiffs have proved an abandonment by prescription. As to the balance of the Paper Street, however, the acts by the Plaintiffs are not "utterly inconsistent with any right of the dominant tenant." Cater, 462 Mass. at 528 n. 16. In fact, and as noted by MPA, to the extent that Gomes has paved a portion of the Paper Street, she has made it more, rather than less, compatible with any right that MPA may have over the way. The result may have been different if Plaintiffs or their predecessors had installed the Fence, or had planted the wooded area adjacent to the Fence, but that is not the case here.

Extinguishment by Abandonment

The Supreme Judicial Court in Cater, 462 Mass. at 528 n. 15, also cited approvingly to § 7.4 of the Restatement, entitled "Modification or Extinguishment by Abandonment." That section states: "A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the right created by a servitude." Restatement of Property (Servitudes) Third, § 7.4 (2000). As stated by the Cater court, "[a]bandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." 462 Mass. at 528 n. 15. The necessary showing has also been described as proof of "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." First National Bank v. Konner, 373 Mass. 463 , 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927).

The issue is one of intent. Desotell v. Szczgiel, 338 Mass. 153 , 158 (1958) ("[W]hether there is an abandonment is a question of intention."); Delconte v. Salloum, 336 Mass. 184 , 188 (1957), quoting Les v. Alibozek, 269 Mass. 153 , 158-159 ("Whether there is an abandonment is ordinarily a question of intention."). And that intent is to be "ascertained from the surrounding circumstances and the conduct of the parties." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). See Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965) (abandonment "can be shown by acts indicating an intention never again to make use of the easement in question"). "Any deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment." Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n. 2 (2004).

Multiple cases stand for the proposition that nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate. See, e.g., Cater, 462 Mass. at 710 n. 15, quoting Desotell, 338 Mass. at 159 ("[N]onuse of itself, no matter how long continued, will not work an abandonment."); Sindler, 348 Mass. at 593, quoting Desotell, 338 Mass. at 159 ("[A]bandonment of an easement could not be shown merely from nonuse by the dominant owner for many years 'coupled with their failure to clear the right of way of its natural cover of trees and brush'… ."); Delconte, 336 Mass. at 188 ("Nonuse does not of itself produce an abandonment no matter how long continued."); 107 Manor Ave. LLC, 74 Mass. App. Ct. at 158 ("Nonuse, by itself, however long continued, will not operate to extinguish an easement."). "However, an extended period of nonuse is a factor to consider in determining whether an easement has been abandoned." Casey v. LaCourt Family LLC, 90 Mass. App. Ct. 1103 (2016) (Rule 1:28 opinion).

Various courts have considered other factors in assessing whether an easement has been abandoned, including (1) whether the owner of the dominant estate failed to protest acts inconsistent with the existence of the easement, 107 Manor Ave LLC, 74 Mass. App. Ct. at 158, and cases cited; (2) whether the easement is obsolete, id. at 160 ("[W]e nonetheless consider evidence of obsolescence as further support for our conclusion that Tyler Road has been lost by abandonment."); and (3) whether acts of the dominant owner inconsistent with the existence of the easement are temporary or fractional. Konner, 373 Mass. at 467, quoting 3 R. Powell, Real Property par. 423, at 526.37 (P. Rohan ed. 1977) ("It is well settled that 'abandonment is not proved by proof of acts which interfere with use of the easement only temporarily, or only in part.'").

The owner of the servient estate carries a heavy burden of proof to establish abandonment; however, "that rigorous standard is not insurmountable." Proulx, 60 Mass. App. Ct. at 704 n. 2, and cases cited. The Appeals Court's decision in Casey, 90 Mass. App. Ct. 1103 , in which it upheld the lower court's summary judgment concluding that the dominant owner's predecessor had abandoned its rights, is instructive.

Casey involved rights over a way running perpendicular to Grove Street for 140' before terminating at a dead end. The Caseys owned one of two parcels abutting the way on its right side. The defendant Lacourt Family LLC owned the property abutting the way on its left side. Both parties, and the owner of the second parcel on the right of the way, had express easements over the way. The Roman Catholic Archdiocese of Boston, the Lacourt Family LLC's predecessor in title, owned that property from 1957 to 2009, on which it operated a high school. Sometime between 1957 and 1965, the Archdiocese erected a wrought iron fence along the border between its property and the way that was approximately four feet high and contained no openings. At some point prior to 1970, the Archdiocese replaced that fence with an eight to ten foot high chain link fence topped with barbed wire. Meanwhile, the Caseys, who purchased their property in 1958, parked in the middle of the way, coordinated tandem parking on the way with their neighbor on the right side of the way, paid to pave the way in 1968, and cleared the way of snow after storms. In 2004, the plaintiffs and their neighbor split the cost to remove a large tree from a section of the way to create two parking spaces. The Archdiocese never contributed to the upkeep of the way.

Lacourt Family LLC purchased its property from the Archdiocese in 2010 and, in 2012, obtained a special permit to convert the school into twenty-five residential units and two commercial spaces. A condition of the special permit expressly limited the use of the way to emergency vehicles only. Lacourt Family LLC thereafter informed the Caseys that it intended to place an emergency gate on the way and instructed them not to park in the way or their car would be towed. A lawsuit followed.

A judge of this court determined that the summary judgment record demonstrated "the Archdiocese's unambiguous indication of an intent to abandon all rights to use [the way] for access." The Appeals Court, on a de novo review of the entire record, arrived at the same result. In doing so, the court considered (1) that the Archdiocese had first installed a wrought iron fence with no breaks in it, separating its property from the way, and (2) that it subsequently replaced that fence with a taller fence with barbed wire, further indicating that its property not be accessed from the way. In addition, the court noted "the prolonged and complete nonuse of the way by the Archdiocese, and acquiescence to the neighbors' use of the way, in a manner that impeded that Archdioceses' access to the way for more than forty years." According to the court:

"The conclusion that the Archdiocese abandoned its easement over [the way] is compelled from the Archdiocese's prolonged lack of use, the maintenance of successive fences blocking access, the blocking of the way by the plaintiffs' parking of their cars on the way, the Archdiocese's failure to object to the plaintiffs' regular parking along the way, and the Archdiocese's lack of contribution to maintaining the way."

Casey, 90 Mass. App. Ct. 1103 .

Similarly, in Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 384 (1992), the Appeals Court found that one of the plaintiffs, one Iodice, the owner of a large parcel consisting of a 126- unit garden apartment complex, had abandoned his easement over an abutting way. There, the court noted that the owners of the servient estate had proved Iodice's nonuse over a long period of time and his acquiescence to the use of the way made by others. Id. at 391. They also "established the equivalent of an intentional surrender of the right to use the [way] for access" by virtue of Iodice's construction of a fence separating his property from the disputed portion of the way in 1968 that remained in place as of the time of the Appeals Court's decision. Id. at 390. According to the court, "[c]onsidering the use of Iodice's property for garden apartments, and the roads constructed within the development to provide access to Grove Street, an intention on Iodice's part never again to make use of the easement was established." Id. at 391.

In the present case, the undisputed evidence in the record establishes nonuse over an extended period of time (for over thirty years, no one from Granada Highlands has accessed, maintained or used the Paper Street), and acquiescence to acts by Gomes, Giannelli, and their predecessors that, while not sufficient to result in extinguishment by prescription of the easement in its entirety, are inconsistent with the easement rights claimed by MPA (construction of the retaining wall and deck, parking, maintenance of a lawn and grilling area). More critical, though, are the acts by MPA's predecessor in title. MPA's predecessor constructed a six foot chain link perimeter fence in or about 1993 that, in conjunction with the guard booth at the main entrance and exit to Granada Highlands 200 feet from the Paper Street, indicates an intent not to make use of any easement rights over the Paper Street. There is no gate or other access point through which a vehicle or pedestrian could pass in order to access the Paper Street. For more than thirty years, permanent parking spots for residents of Granada Highlands have abutted the western side of the fence at MPA's property across from the Paper Street.

MPA argues that none of the acts taken by it or the Plaintiffs would preclude MPA from "quickly and easily altering the existing conditions so as to make use of" the Paper Street. Defendant MPA Granada Highlands, LLC's Response To Plaintiffs' April 4, 2019 Supplemental Submission at 6. As noted above, whether the acts of the dominant owner are temporary or permanent is a relevant factor. That, however, is only one of a number of factors to be weighed, such as those described above, that, considered together, may well be sufficient to prove an intent to abandon.

On the record in this case, though, there is more: a number of permanent changes were made by MPA's predecessor in title that "conclusively and unequivocally manifest[] either a present intent to relinquish the easement or a purpose inconsistent with its further existence." Dubinsky, 261 Mass. at 57. In 1972, Mr. Flatley caused the 1972 Subdivision Plan to be prepared. The 1972 Subdivision Plan included some of the land shown on the 1873 Plan and other land acquired by Mr. Flatley from the MRA. The 1972 Subdivision Plan created three lots containing 14.52 acres, 14.69 acres and 11.80 acres respectively. Neither Winchester Street, the lots abutting Winchester Street nor the other lots and ways shown on the 1873 Plan and within the boundaries of the MPA Property continued in existence. Thereafter, Granada Highlands was constructed. It comprises thirteen apartment buildings that have a combined total of 919 multi- family apartment units. A review of the 2007 Plan in conjunction with the 1873 Plan and the Taking Plan indicates that a number of the apartment buildings on the MPA property are constructed on land that does not, under any set of circumstances, have easement rights over the Paper Street. See Murphy, 348 Mass. at 678. The 2007 Plan also shows what appears to be the sole entrance to the complex, with a "guard shack," located approximately 200 feet south of the Paper Street.

The creation by MPA's predecessor of a 40+ acre apartment complex with a secure perimeter, its own road system with a separate access point, and thirteen apartment buildings and associated parking, all without regard for any easement right that might exist over the Paper Street for some portion of that property, constitutes an abandonment of whatever rights MPA's predecessor had. This court does not see how the use of the claimed easement could, on these facts, be limited to the particular portions of MPA's property to which it is appurtenant, a further indication that abandonment was intended by MPA's predecessor. [Note 7]

This conclusion makes it unnecessary to address MPA's argument that there is a dispute of material fact as to MPA's intent to abandon its easement rights, an argument based on the affidavit of the chief executive officer of its parent company that MPA was aware of and intended to preserve easement rights over Winchester Street when the MPA Property was acquired in 2007. By then, the easement had long since been abandoned. [Note 8]

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, the Plaintiff's Motion for Summary Judgment is ALLOWED and MPA Granada Highlands, LLC's Cross-Motion For Summary Judgment is DENIED. Partial summary judgment shall enter on Plaintiffs' complaint declaring that MPA does not hold a fee interest in [Note 9] or other rights in or over the Paper Street by virtue of its ownership of land shown on the 1873 Plan, those rights having been extinguished in part by prescription and in full by abandonment if they ever existed, and does not hold appurtenant rights over the Paper Street by virtue of its ownership of land not shown on the 1873 Plan. The issue of ownership of the fee in the Paper Street remains open and will be addressed at a status conference at 10:00 a.m. on Thursday, May 23, 2019.

SO ORDERED


exhibit 1

Appendix A


exhibit 2

Appendix B


FOOTNOTES

[Note 1] In their complaint, Plaintiffs also seek a judgment that the Plaintiffs own the fee in Winchester Street as it abuts their property and a declaration that the "no other person or person have any right to use the stated portion of Winchester Street as a private way." A similar request is made at the end of Plaintiffs' Brief In Support Of Their Motion For Summary Judgment. While the court is able to adjudicate MPA's easement rights over the way, it is not able at this time to adjudicate the rights of others claiming an interest in the way. Further proceedings, after notice to any interested parties, will be required to address the rights of others.

[Note 2] D. App. Ex. 7, the "Declaration of Michael Marsh," consists of consecutively numbered paragraphs, but contains two paragraphs numbered as "12." Unless otherwise noted, citations to Ex. 7, ¶ 12 refer to the first of these two paragraphs.

[Note 3] See Defendant MPA Granada Highlands, LLC's Memorandum In Opposition To Plaintiffs' Motion For Summary Judgment And In Support Of Its Cross-Motion For Summary Judgment ("MPA Memorandum") at 7-8.

[Note 4] Defendant MPA Granada Highlands, LLC's Supplemental Submission In Support of Its Motion For Summary Judgment ("MPA Supplemental Submission").

[Note 5] In view of this court's decision regarding abandonment, it does not reach the issue of obsolescence. Were it to do so, the Restatement of Property (Servitudes) Third, § 7.10 (2000) and its comments are instructive. Id. at comments b, c ("The changed-conditions doctrine is also closely related to abandonment. If a servitude has lost its utility, the beneficiary may well abandon it … .The changed-conditions rule is used where, even though a servitude no longer serves its intended purpose, the beneficiary does not intend to abandon it. … [T]he test is not whether the servitude retains value, but whether it can continue to serve the purposes for which it was created.").

[Note 6] As noted supra at note 1, an adjudication of the ownership of the fee in the Paper Street must await joinder of the record owners of the fee. For present purposes, it matters not whether Gomes and Giannelli are owners of the servient estate engaging in acts inconsistent with MPA's easement, or strangers thereto engaging in acts sufficient to establish their title good against the world. See Town of Sandwich v. Quirk, 409 Mass. 380 , 383 n. 8 (1991), quoting Harrison v. Dolan, 172 Mass. 395 , 396 (1899) ("[A]s a tax sale, if valid, gives a good title as against all the world, it is like prescription, and really begins a new title which can be barred only by twenty years of adverse holding after the new title begins.").

[Note 7] This case is distinguishable from Melrose Fish and Game Club, Inc., 89 Mass. App. Ct. at 597. There, the owner of the servient estate argued unsuccessfully that the planning board's approval of a subdivision plan that did not reflect the way along its entire length operated to extinguish the plaintiff's easement over the way. The court there observed that the planning board simply did not have the power to do so. Here, it is the act of the dominant owner in seeking approval of a subdivision plan that is inconsistent with his easement rights that is one factor to be considered in determining whether he intended to abandon his rights.

[Note 8] Were it otherwise relevant, that affidavit suffers from other problems that are the subject of Plaintiffs' Motion To Strike Portions Of Defendant's Declaration Of Jeffrey Cohen And Related Responses/Statements Of Undisputed Material Facts. The affiant makes statements not based on personal knowledge, see D. App. Ex. 16, ¶ 8 ("To the best of my knowledge, the previous owner of Granada Highlands installed and used the fence for this same purpose."); that contain opinions that he is not qualified to render, see id. regarding the requirements of the state building code; and that are argumentative, as opposed to statements of fact, see id. at ¶ 9 regarding Plaintiffs' paving of the area being consistent with MPA's easement rights. In addition, to the extent that the affiant appears to contradict the testimony under oath of the individual produced by MPA in response to a Rule 30(b)(6) deposition notice, that contradiction would not be sufficient to create a dispute of material fact. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 647-648 (2002). In view of the court's determination that the affidavit is irrelevant, Plaintiffs' motion is moot.

[Note 9] In the MPA Memorandum at p. 10, MPA states that it "does not claim a fee interest in Winchester Street."