OLD COLONY HISTORICAL SOCIETY v. TAUNTON CHURCH GREEN REALTY, LLC.

Plaintiff Old Colony Historical Society owns property at 66 Church Green in Taunton, Massachusetts. It's the site of the Old Colony History Museum. Located directly behind 66 Church Green are two abutting lots – Assessors' Lots 66-424 and 66-426 – owned by defendant Taunton Church Green Realty, LLC ("TCGR"). Lot 66-424 is known as 68 Church Green and is accessible from Church Green via a 40-foot right of way (the "Right of Way"). This case presents three questions: (1) whether TCGR may use the Right of Way to access Lot 66-426 (and if not, whether TCGR has acquired such rights by prescription); (2) whether Old Colony has narrowed the Right of Way by prescription; and (3) whether TCGR has the right to construct a sidewalk along the Way, if required to do so by a permitting authority.

Lot 66-426 is paved, but otherwise undeveloped. Lot 66-424 hosts a vacant medical office building (the "Medical Arts Building"). Why the sudden dispute over access to a paved lot adjacent to an empty medical office building? Because TCGR hopes to sell both lots to Housing Solutions Church Green, LLC. Housing Solutions intends to build 40 one-bedroom apartments and 55 parking spaces somewhere on or near 68 Church Green. (The Court doesn't know exactly where – none of the parties provided any plans for the development.) Old Colony contends that residents and visitors of the proposed development may use the Right of Way to reach Lot 66-424, but may not use the Way to reach Lot 66-426.

In February 2018, Old Colony filed this action, seeking declarations as to the three questions described in the introduction of this decision. The parties appeared for trial on January 18, 2019. The Court began the trial with a view of the Right of Way, Lot 66-426, and the exterior of the Medical Arts Building. Based on the testimony and exhibits received at trial, the parties' stipulations of fact, and the arguments of counsel, the Court finds the facts recited above plus these:

1. In 1925, the owner of 66 Church Green was the Trustees of Bristol Academy (despite the name, it was a corporation), and the 66 Church Green parcel (which is roughly rectangular, with its longest axis running southwest/northeast) was double in size. A street called Church Green abuts the northwest side of 66 Church Green.

2. In October 1925, the Trustees asked a surveyor to prepare a plan (the "1925 Plan") showing a division of their property. The 1925 Plan detailed a front parcel (today's 66 Church Green) and a back parcel (today's 68 Church Green). The 1925 Plan also showed a 40-foot "Right of Way" along the southwest edge of the front parcel, beginning at Church Green and ending at the back parcel.

3. In February 1926, the Trustees sold the back parcel to Harry Carlow. Carlow's deed (the "Carlow Deed") described the back parcel by metes and bounds as well as the 1925 Plan. The Carlow Deed recites that the Trustees sold him the parcel,

together with a right of way forty (40) feet wide extending over a strip of grantor's remaining land and along the southwesterly line thereof from the [deeded] premises to Church Green, as shown on [the 1925 P]lan, with the full right in the grantee to use same for himself, his tenants, and his and their agents and servants, and all persons having lawful business with him or them, and in such manner and for all such purposes as a public way is commonly used. And the grantee, and his heirs and assigns, shall have full right to lay and maintain water, sewer and gas pipes under the said right of way and erect and maintain telephone and electric light poles and wires on and over the same, and construct and maintain a regular graded way over said strip of land but without expense to this grantor or its assigns. And if at any time the City of Taunton shall lay out a street over said strip of land, the grantor or its assigns hereby agrees as part of the consideration for this deed that it, or they, will release to said City, without compensation, any claim for damages whatsoever.

4. In May 1926, the Trustees sold what's now 66 Church Green to the Society. A single 19th-century building occupies 66 Church Green. That building houses the Old Colony History Museum and the Society's offices.

5. In 1958, Mr. Carlow's widow sold 68 Church Green to Medical Arts Building, Inc. The 1958 deed mentions "buildings" on 68 Church Green. At the time of trial, there was an unoccupied building complex on 68 Church Green, a complex shaped like a backwards "C." That complex is the Medical Arts Building. There was testimony at trial that part of the complex dates from the American Civil War, although the Carlow Deed doesn't mention any building. The 1958 deed also describes the Right of Way. The 1958 deed omits, however, the lengthy description of the Right of Way recited in ¶ 3 above.

6. In 1959 Medical Arts Building, Inc. agreed to impose two restrictions on 68 Church Green for the benefit of eight nearby properties, not including 66 Church Green. One restriction prohibited use of 68 Church Green by any "business or commercial use. . . other than the use for a maximum of twelve doctors' offices. . . ." The other restriction prohibited the installation of any sign besides a street sign on 68 Church Green, or on Church Green itself.

7. The Medical Arts Building is a single-story structure, largely wood-framed. It was used solely as doctors' offices until approximately 2000, when Community Counseling of Bristol County, Inc., began leasing space in parts of the complex.

8. A portion of the northeast face of the Medical Arts Building, the part of the complex that allegedly dates from the Civil War, lies on 68 Church Green's northeast boundary. In August 1960, Medical Arts Building, Inc. purchased from neighbors Menahem and Frances Cooperstein a nearly rectangular lot (what this decision and Taunton's tax assessors call Lot 66-426). That lot abutted 68 Church Green's northeast boundary. The Coopersteins had cleaved Lot 66-426 from their residential property on Church Green specifically for "Medical Arts, Inc.," which subsequent buyers and sellers of the property treated as identical to Medical Arts Building, Inc. The 1960 deed conveying Lot 66-426 doesn't mention any access to that lot.

9. At the time of trial, fences stretched along the northeast, northwest (abutting the remainder of what used to be the Cooperstein property), and southeast sides of Lot 66-426. The southwest side of Lot 66-426, the entirety of which abuts the northeast side of 68 Church Green, was unfenced at the time of trial. Lot 66-426 also was completely paved at the time of trial. Approximately 40 feet of that paving, on the west corner of Lot 66-426, connects with a similarly paved area on 68 Church Green, and forms a large, continuous parking lot that surrounds the Medical Arts Building on its west, northwest, north and northeast sides. The paved areas on Lot 66-426 also connect to paved accessways that encircle the Medical Arts Building.

10. At the time of trial, Lot 66-426 showed no signs of buildings or other permanent structures except for a porch and a single stairway, extending from the northeast side of the Medical Arts Building (from what was described at trial as "Dr. Parker's Private Entrance") to grade, that spills into Lot 66-426. The trees growing on Lot 66-426 at the time of trial were mostly along the fenced edges of the lot. There are no water, sewer or utility lines serving Lot 66-426.

11. There have been eight conveyances of 68 Church Green and Lot 66-426 since 1984. Each time, both lots have been conveyed together. The last such conveyance, to TCGR, occurred in June 2011.

12. While the activities described in ¶¶ 5, 6 and 8 above, plus the Medical Arts Building's architecture, suggest that the Building complex dates from the early 1960s, no party presented testimony concerning the Building's uses prior to 1984. That testimony came from pediatrician Dr. Goverdhani Ohri. He began working in the Building in July 1984. As of 1984, the footprint of the Building was as it exists today. As of 1984, and continuing to this day, persons who wanted to reach Lot 66-426 did so by entering 68 Church Green via the Right of Way, then crossing 68 Church Green's parking lot. No one testified to anyone entering Lot 66-426 by another route.

13. The Medical Arts Building had private entrances for a number of doctors and for deliveries along most of the sides of the Building. Doctors and staff for the offices located on the side of the Building closest to Lot 66-426 parked right outside those entrances – on Lot 66-426 – so as to have direct access to their offices.

14. At the time of trial, portions of Lot 66-426 were visible from 66 Church Green and the Right of Way. One can't see Lot 66-426 from Church Green or other public ways.

15. Since 1984, Lot 66-426 has been used only for these purposes: (a) as the location of the stairway to Dr. Parker's Private Entrance; (b) parking for owners or tenants of the Medical Arts Building, and their employees, patients and visitors; (c) connecting the paved areas surrounding the Building, and providing access to the Building itself, for the use of the Building's owners, tenants, employees, patients, visitors, prospective purchasers and developers, vendors, delivery personnel, heating-oil suppliers, and utility companies; (d) as the location for dumpsters used in the connection with the Building's operations (that use ceased in 2014); (e) starting in 1996, as the location for a few picnic tables used by Building tenants and staff; (f) occasional parking for visitors to the Museum; and (g) occasional public parking, in connection with City events such as parades.

16. The only testimony concerning parking by Museum patrons on either 68 Church Green or Lot 66-426 dates from after 2006. The Museum asked the then-owner of 68 Church Green and Lot 66-426, Richard Harris, for permission to park on his property, and Harris gave that permission.

17. The only testimony concerning parking by members of the public on either 68 Church Green or Lot 66-426 dates from after 2006. The City asked Mr. Harris for permission to park on his property, and Harris gave that permission.

18. The Building's last tenant, a doctor, vacated the building in 2016. Since that time, TCGR has continued to use (or has allowed the use of) Lot 66-426, albeit less frequently than before, and only for some of the uses described in ¶ 15 above. TCGR reaches Lot 66-426 by the route described in ¶ 12 above.

19. The Right of Way is fully paved from Church Green to 68 Church Green. A line of telephone poles stretches along the southwest side of the Way. Water and sewer lines serving 68 Church Green run beneath the Way. There are no structures on the surface of the Way.

20. Since 1971, staff and patrons of the Museum, congregants at a nearby church, and members of the public have parked along the sides of the Right of Way. The intensity of this "street-side parking" varies. The Museum is open and staffed five days each week, but only between 9 a.m. and 5 p.m. (with occasional business meetings and events outside of those hours). The volume of its visitors varies seasonally. The Museum also has ten or eleven parking spaces on the Church Green side of the Museum and two spaces at the back of the Museum. Congregants of the church park on the Right of Way largely on Sunday mornings. Even when there have been large events in the area, parking along the Way never has blocked access to 68 Church Green (or, by extension, Lot 66-426).

21. In May 2005 Old Colony entered into a Preservation Restriction Agreement with the Commonwealth of Massachusetts, by and through the Massachusetts Historical Commission. The Agreement was recorded with the Northern Bristol County Registry of Deeds in June 2005. The Agreement states in part:

[Old Colony] agrees that no alterations shall be made to [66 Church Green]. . . . unless (a) clearly of minor nature and not affecting the characteristics which contribute to the architectural, archaeological or historical integrity of the Premises, or (b) the Commission has previously determined that it will not impair such characteristics after reviewing plans and specifications submitted by [Old Colony], or (c) required by casualty or other emergency promptly reported to the Commission. Ordinary maintenance and repair of [66 Church Green] may be made without the written permission of the Commission.

22. After 2016, TCGR began discussing with Housing Solutions Church Green, LLC developing 68 Church Green and Lot 66-426 for 40 one-bedroom apartments and 55 parking spaces. In connection with one of the development plans for 68 Church Green and Lot 66-426, it was suggested that a sidewalk might have to be built along and within the Right of Way.

23. In 2017, the Taunton Municipal Council denied a special permit for 68 Church Green and Lot 66-426. That denial was appealed. Old Colony thereafter filed its complaint in this Court. Prior to the filing of that suit, TCGR was unaware of any allegation that it was using the Right of Way improperly.

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The Court will start with the first of Old Colony's arguments, that Lot 66-426 does not have the "benefit" of the Right of Way described in the Carlow Deed. The Carlow Deed conveyed Lot 66-424 (emphasis added)

together with a right of way forty (40) feet wide extending over a strip of grantor's remaining land and along the southwesterly line thereof from the [deeded] premises to Church Green, as shown on [the 1925 P]lan, with the full right in the grantee to use same for himself, his tenants, and his and their agents and servants, and all persons having lawful business with him or them, and in such manner and for all such purposes as a public way is commonly used.

The Court's response to Old Colony's first argument depends on what Old Colony means by "benefit." At the final pretrial conference in this case, TCGR argued that Lot 66-426 enjoyed easement rights in the Way solely as a consequence of TCGR's ownership of Lot 66-424. The Court did not agree. Instead, the Court followed the rule in Pion v. Dwight, 11 Mass. App. Ct. 406 (1981), that an easement is available for use by the whole of the dominant tenement that existed at the time of the easement's creation, but not after-acquired property. Thus, if Old Colony's sole aim in this lawsuit was to have the Court declare that the Right of Way isn't appurtenant to Lot 66-426, then Old Colony has won: because TCGR's predecessors-in-title didn't own Lot 66-426 at the time the Carlow Deed established the Right of Way, there's no right appurtenant to Lot 66-426 for anyone's use of the Right of Way.

But what if Old Colony's aim is different? If it seeks to prevent anyone who's used the Right of Way from reaching Lot 66-426, Old Colony won't succeed. That's because Pion and the Carlow Deed don't entirely foreclose use of the Way to reach Lot 66-426. After all, the Carlow Deed allows use of the Way for various purposes associated with Lot 66-424. TCGR proved that Lot 66-426 has been used only in the following ways:

(a) as the location for the stairway to Dr. Parker's Private Entrance;

(b) for parking for owners or tenants of the Medical Arts Building, and their employees, patients and visitors;

(c) for connecting the paved areas surrounding the Building, and providing access to the Building itself, for the use of the Building's owners, tenants, employees, patients, visitors, prospective purchasers and developers, vendors, delivery personnel, heating-oil suppliers, and utility companies;

(d) as the location for dumpsters used in connection with the Building's operations;

(e) as the location for picnic tables used by Building tenants and staff;

(f) for occasional parking for visitors to the Museum; and

(g) for occasional public parking, in connection with City events such as parades.

Uses (a) through (e) are tied to the very purposes the Carlow Deed authorizes: uses by the owner of Lot 66-424 itself, uses by tenants of Lot 66-424, and uses by persons having lawful business on Lot 66-424. TCGR, its tenants, agents, and "persons having lawful business" on Lot 66-424 have the right under the Carlow Deed to use the Way for purposes related to Lot 66-424, even if that use causes someone to enter or depart from Lot 66-426. The Court thus DENIES Old Colony's request for a declaration that TCGR may never use the Right of Way to reach Lot 66- 426: those doing something on Lot 66-424 may.

Uses (f) and (g) are on a different footing. They have nothing to do with Lot 66-424, and thus the Carlow Deed doesn't authorize use of the Way for such purposes. TCGR argued at trial that if it didn't have deeded rights to use the Way to reach Lot 66-426, it obtained such rights by prescription. TCGR hasn't made out a prescriptive right for either use (f) or use (g). "An easement by prescription is acquired by the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty years." White v. Hartigan, 464 Mass. 400 , 413 (2013); see also G.L. c. 187, § 2. TCGR's claim that it obtained the right to use the Way for access to Lot 66-426 for parking for Museum patrons fails for a simple reason: Museum uses of the Way – which sits on the Museum's own land -- aren't an "adverse use" of that land. TCGR also can't make out a prescriptive case for use of the Way to reach Lot 66-426 for parking for City events. City-event parking began in 2006. That's well short of twenty years. Further, event parking was sporadic and intermittent. So even if event parking had been occurring for more than twenty years, it was not sufficiently continuous. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007) (plaintiff cannot establish a prescriptive easement when use of the locus is intermittent and disjointed in time). The Court thus DENIES TCGR's claims for use of the Right of Way for access to Lot 66-426 for Museum parking and parking for City events.

The Court turns to Old Colony's second claim, that it has narrowed the Right of Way by prescription. One may "narrow" a deeded easement through acts of extinguishment. See Pappas v. Maxwell, 337 Mass. 552 , 557 (1958) ("Where . . . acts of the servient tenant render the use of only part of a right of way impossible, the easement is extinguished . . . as to that part"). That said, "[t]he use of the land by the servient tenant not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore would not extinguish such rights." Patterson v. Simonds, 324 Mass. 344 , 352 (1949). One such "reconcilable" use is parking cars. "Parked cars are not a permanent obstruction and do not tend to manifest an appearance of permanency sufficient to create doubts as to the continuance of an easement." Merry v. White, 13 LCR 339 , 344 (2005) (Trombly, J.). All of Old Colony's proof of "narrowing" consists of parking. Old Colony presented no evidence that it ever used the Way in any other manner, particularly a manner that is inconsistent with TCGR's rights under the Carlow Deed. The Court thus DENIES Old Colony's claim that it has narrowed the Way by prescription.

Lastly, the Court addresses the parties' dispute over the potential construction of a sidewalk along the Way. At trial, the parties agreed to limit that dispute to a circumstance where a permitting authority requires the construction of a sidewalk in order for the owner of 68 Church Green to receive permission to develop its lot. "The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use." Guillet v. Livernois, 297 Mass. 337 , 340 (1937). In Guillet, a dominant tenant's only means of access to its lot was over a deeded right of way. Owners of the servient estates wanted to keep way unimproved and impassible, while the dominant tenant wanted to grade the way and construct a sidewalk along one side of it. The Guillet court held that the dominant estate's rights included the right to make the way passable and to build a sidewalk. The court called the sidewalk "a usual incident of such a way. . . ." Id. at 341.

Guillet dictates that TCGR has the right to construct a sidewalk along the Way if required to do so by a permitting authority. The Preservation Restriction Agreement doesn't diminish TCGR's rights. "It is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement." Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875 , 878 (2000) (emphasis added). TCGR was not a party to the Preservation Restriction Agreement, and Old Colony presented no evidence at trial that TCGR assented to the Agreement. The Court thus holds that the Preservation Restriction Agreement does not bind TCGR or prevent it from building a sidewalk.

Judgment to enter accordingly.