ROBERT TEAHAN, WILLIAM A. MUNROE, DORY C. BRINKER, GARFIELD N. TOOLAS, as Trustee of the Garfield N. Toolas Revocable Trust, ALFRED CALI, ROBERT CHAMBERS and ALAN ANI v. KAREN A. HICKEY, individually and as Personal Representative of the Estate of ROBERT K. DOEG JR., and CAPE COD COOPERATIVE BANK

Plaintiffs filed suit in 2017 seeking a declaration that Defendant Karen Hickey ("Hickey") may not use either of two private roads in Brewster -- Buggy Whip Road or Whiffletree Avenue (the "Private Roads") -- to get to and from two unbuilt lots within a new subdivision that is otherwise landlocked and without access to public roads. [Note 1] Hickey counterclaimed seeking a declaration that she has the right to use the Private Roads to access these lots. The parties have cross-moved for partial summary judgment based upon a joint statement of facts and agreed upon exhibits. Plaintiffs seek a declaration that Hickey has no right to use the Private Roads, or alternatively that Hickey's use of the Private Roads overloads or overburdens the easements in those roads. Hickey, on the other hand, claims an express easement to use the Private Roads or, alternatively, an easement by implication or necessity and denies any overloading or overburdening of the easements. As discussed more fully below, I conclude that the use of the Private Roads to benefit lots in the new subdivision would indeed overload the easements in those roads. Accordingly, I allow Plaintiffs' Cross Motion for Partial Summary Judgment and deny Defendants' Cross Motion for Partial Summary Judgment. [Note 2]

FACTS

The following material undisputed facts are taken from the parties' Joint Statement of Undisputed Facts ("Joint St."), Joint Exhibits ("Joint Ex."), Supplement to Joint Statement of Undisputed Facts ("Supp. St."), and Revised Joint Exhibits ("Rev. Ex."); as well as Defendant's Appendix filed together with the Declaration of Christopher J. Alphen on January 8, 2019 ("Def.'s Ex."), and Plaintiffs' Exhibits filed together with the Affidavit of Michael J. Markoff, dated February 5, 2019 (Pls.' Ex."). Attached to this Decision is a compilation Decision Sketch based on the various plans identified in the Decision and the Assessor's Map. The Decision Sketch locates the Plaintiffs' lots and Hickey's lots as they relate to the Private Roads and the public roads.

The Parties

1. Plaintiffs own lots in Brewster abutting the Private Roads. Joint St., ¶ 1; Rev. Ex. 1. [Note 3] They include:

a. William A. Munroe ("Munroe"), who resides at and owns a parcel of land with a street address of 8 Buggy Whip Road, pursuant to a deed recorded at the Barnstable Registry of Deeds ("Registry") on October 16, 2003 as Land Court Document No. 944,749 as shown on Certificate of Title No. 17501. Joint Ex. 24. [Note 4] This parcel appears as Lot 5 on Land Court Plan No. 36554-A, entitled "Plan of Land in Brewster, Nickerson & Berger, Inc.," dated March 1970, December 1970 and March 23, 1971. ("Buggy Whip Plan"), sheet 1 of 2. Joint Ex. 10. This parcel also appears as Lot X-5 on Rev. Ex. 1.

b. Dory C. Brinker ("Brinker"), who resides and owns a life estate in a parcel of land with a street address of 8 Horse Way, pursuant to a deed recorded at the Registry on August 2, 2016 as Land Court Document 1,300,412 as shown on Certificate of Title 210296. [Note 5] The parcel appears as Lot 11 on the Buggy Whip Plan, sheet 2 of 2. Plaintiffs' Second Amended Complaint, ¶ 12; Defendants Robert K. Doeg, Jr. and Karen A. Hickey's Answer to Plaintiffs' Second Amended Complaint and Counterclaim, ¶ 12. This parcel also appears as Lot X-6 on Rev. Ex. 1.

c. Garfield N. Toolas ("Toolas"), Trustee of the Garfield N. Toolas Revocable Trust, who resides at and owns a parcel of land with a street address of 63 Whiffletree Avenue, pursuant to a deed recorded at the Registry on November 30, 2004 in Book 19299, Page 33. [Note 6] Joint Ex. 16. This parcel also appears as Lot X-1 on Rev. Ex. 1.

d. Alfred Cali ("Cali"), who resides at and owns a parcel of land with a street address of 150 Whiffletree Avenue, pursuant to a deed recorded at the Registry on May 5, 2007 in Book 21916, Page 317 (the "Cali Deed"). Joint Ex. 18. [Note 7] This parcel appears as Lot 7 on a plan recorded in Plan Book 128, Page 19 ("Whiffletree Plan II"). Joint Ex. 4. This parcel also appears as Lot X-4 on Rev. Ex. 1.

e. Robert Chambers ("Chambers"), who resides at and owns a parcel of land with a street address of 102 Whiffletree Avenue, pursuant to a deed recorded at the Registry on November 24, 2000 in Book 13385, Page 043. Joint Ex. 17. [Note 8] This parcel appears as Lots 4 and 5 on Whiffletree Plan II. Joint Ex. 4. This parcel also appears as Lot X-2 on Rev. Ex. 1.

f. Alan Ani ("Ani") resides at and owns a parcel of land with a street address of 101 Whiffletree Avenue pursuant to a deed recorded at the Registry on June 24, 2014 in Book 28222, Page 326. Joint Ex. 19. [Note 9] This parcel appears as 16A on a plan recorded at the Registry in Plan Book 288, Page 40 ("Whiffletree Plan III"). Def.'s Ex. 64. This parcel is also shown as Lot X-3 on Rev. Ex. 1.

g. Robert Teahan resides and holds title to a parcel of land with a street address of 224 Pond View Drive pursuant to a deed recorded at the Registry on March 22, 1994 as Land Court Document 610,184. Plaintiffs' Second Amended Complaint, ¶ 18; Defendants Robert K. Doeg, Jr. and Karen A Hickey's Answer to Plaintiffs' Second Amended Complaint and Counterclaim, ¶ 18. This parcel also appears as Lot X-7 on Rev. Ex. 1.

2. Each of the Plaintiffs' properties other than Teahan's property are located within the 96+ Acre Parcel (as defined below).

3. Hickey resides at and owns a parcel of land with a street address of 162 Buggy Whip Road. This parcel appears as Lot 1 on the Harrison Hill Subdivision Plan and is immediately adjacent to the Stub Lot on Rev. Ex. 1. Plaintiffs have not sought any relief against Hickey as to Lot 1. Memorandum in Support of Plaintiffs' Opposition to Defendant Karen A. Hickey's Motion for Summary Judgment and In Support of Plaintiffs' Cross-Motion for Partial Summary Judgment ("Plaintiffs' Memo"), pages 3-4.

4. Hickey also owns two undeveloped lots located on Harrison Hill Road. These two lots, Lot 2 and Lot 5, appear as Lots 2 and 5 on Rev. Ex. 1. [Note 10]

The Wolffs Begin to Subdivide the 96+ Acre Parcel, Acquire the Dennis Gap Easement, and Lay Out Whiffletree Avenue (1955-1960)

5. On June 8, 1955, a deed from Mary C. Connolly to Lester and Nina Wolff (the "Wolffs") was recorded in the Registry in Book 910, Page 248, whereby the Wolffs acquired a 96.904 acre parcel of land (the "96+ Acre Parcel"). Joint St., ¶ 3; Pls.' Ex. 1. This deed describes the parcel as "compris[ing] a total area of 96.904 acres more or less, and is shown on a plan entitled 'Plan of Land in Brewster (West) Massachusetts, as surveyed for Mary C. Connolly,' dated April, 1955, made by Schoenfield Brothers, Civil Engineers, Orleans, Massachusetts." This plan was recorded in Registry Plan Book 121, Page 79, also on June 8, 1955 (the "96+ Acre Plan"). The 96+ Acre Parcel lies mostly within the town of Brewster (93.517 acres) and partly within the town of Dennis (3.387 acres). Joint Ex. 3; Joint St. ¶ 3-4 [Note 11].

6. The 96+ Acre Plan does not show the layout for any roads or ways. Joint St. ¶ 6; Joint. Ex. 3. The northern areas of the 96+ Acre Parcel border Stony Brook Road, identified as a county way on the 96+ Acre Plan. [Note 12] Joint St., ¶¶ 6-7; Joint Ex. 3.

7. On January 15, 1956, upon application of Wolffs, the Brewster Planning Board approved a subdivision plan of the 96+ Acre Parcel, showing nine lots along a layout of Whiffletree Avenue with access to Stony Brook Road, entitled "'Top of the Cape' Subdivision of Land in Brewster, MASS, Section 1, dated November, 1955, by Schofield Brothers, Civil Engineers, Orleans and Framingham" ("First Wolff Subdivision Plan 1955"). The First Wolff Subdivision Plan 1955 was recorded in the Registry in Plan Book 128, Page 19. Joint St. ¶ 10; Joint. Ex. 4.

8. On June 15, 1956, by deed recorded in the Registry in Book 944, Page 81, the Sears family (Evelyn, Francis, Marie and Susan) granted to the Wolffs, their heirs and assigns "forever the right to pass and repass in vehicles, on foot, or otherwise over a way across [the Sears'] property in Dennis" ("Dennis Gap Easement"). Joint St., ¶¶ 12-13, Joint Ex. 5.

9. The Dennis Gap Easement as agreed by the parties "refers to the area in Dennis which lies between the Dennis/Brewster town line, and Airline Drive." Supp. St. No. 1(b).

10. The Dennis Gap Easement further states:

The said way shall commence at Airline Road . . . shall be 40 Feet in width, excepting where it connects with Airline Road, and shall run across our land in an easterly direction until it comes to the land of the grantors, where it shall connect with a similar way across the land of the grantors, as shown on a plan entitled "Plan of Land in Brewster & Dennis, Mass to be filed in the Land Court by [the Sears family] dated Apr. 1956 by 'Nickerson & Berger, Civil Engineers, Eastham & Orleans, Mass.

Joint St., ¶ 14, Joint Ex. 5. [Note 13]

11. The unnamed "similar way" described in the Dennis Gap Easement is now known as Whiffletree Avenue. Supp. St., No. 1(b). The Dennis Gap Easement provides a direct connection between Airline Road, a public way, and Whiffletree Avenue, a private way. Supp. St., No. 1(c).

12. The Dennis Gap Easement further provides: "the rights herein granted shall be considered as rights appurtenant to and running with the land of the grantees or any portion of their land." Joint Ex. 5.

13. The Wolffs recorded additional subdivision plans for the 96+ Acre Parcel and conveyed deeds to lots within a portion of that parcel, including deeds to lots now owned by the four of Plaintiffs (Toolas, Ani, Cali and Chambers) among others. Joint St., ¶ 15-16. These included, among others, a plan entitled "Top of the Cape Section II," as surveyed by Schofield Brothers, Civil Engineers, Orleans and Framingham Mass., dated September 1957 and recorded in Plan Book 138, Page 131. ("Wolff 1957 Subdivision Plan"). Defendant's Ex. 59. [Note 14] The Wolff 1957 Subdivision Plan showed the Intersection of Whiffletree Avenue and Buggy Whip Road, the latter identified as a "40 ft. PRIVATE WAY," and detailed the connection between Whiffletree Avenue and Stony Brood road, identified as a "County Way."

14. Each of the source deeds from the Wolffs describes the lot as conveyed both by reference to a recorded plan and by the lots' boundaries, expressly identifying at least one boundary "by" either of the Private Ways. Joint St., ¶ 17. In none of these source deeds did the Wolffs expressly reserve ownership of the fee in any way. Joint St., ¶ 18.

Sears Wolff Acquires the Remainder of the 96+ Acre Parcel, Lays Out Buggy Whip Road and Conveys Parcels to Wild Realty Trust (1960-1974)

15. On December 30, 1958, by deed recorded in the Registry in Book 1026, Page 516, the Wolffs [Note 15] conveyed to Sears G. Wolff ("Sears Wolff") those portions of the 96+ Acre Parcel that had not previously been conveyed to third parties (the " Sears Wolff 96+ Acres Remainder"). Joint St., ¶ 21; Joint Ex. 20. The Sears Wolff 96+ Acres Remainder was conveyed "together with all easements and rights of record or appurtenant to that land and subject to easements, restrictions and rights of record insofar as the same may now be in force and effect." Joint Ex. 20.

16. On May 17, 1960, Sears Wolff recorded a plan of land in the Registry Plan Book 155, Page 85, showing, inter alia, the layout of Buggy Whip Road in its entirety ("Sears Wolff 1960 Buggy Whip Layout Plan"). Joint St., ¶ 22. The Sears Wolff 1960 Buggy Whip Road layout formed a loop off of and to the east of Whiffletree Avenue, connecting with both Whiffletree Avenue at both its north and south termini and with another road running east to west, Bridle Path, connecting Whiffletree Avenue and Buggy Whip Road at their midpoints (creating a roadway system looking similar to the number 8). Joint Ex. 6.

17. On November 14, 1968, Sears Wolff conveyed the first of several parcels to Robert P. Wild, Trustee of Wild Realty Trust, under Declaration of Trust, dated February 27, 1968 (the "Wild Trust"). This first parcel was described as "containing 19.07 acres, more or less, and being a portion of the premises shown on a plan entitled [96+ Acres Plan]," (the "1968 Wild Parcel"), and was conveyed by deed recorded in the Registry in Book 1419, Page 513 (the "1968 Wild Deed"). Joint St., ¶ 23, Joint Ex. 7. The 1968 Wild Deed stated: "Conveyance is made together with a right of way with all others who now or may hereafter be entitled thereto over the private ways as shown on the [96+ Acre Plan]." Joint St., ¶¶ 24-25; Joint Ex. 7.

18. The Wild Trust subdivided the 1968 Wild Parcel into approximately 19 lots and then conveyed most of those lots to new owners. Each lot conveyed by the Wild Trust is marked with a blue capital letter on Revised Ex. 2 (Lots A -- S) Joint St., ¶¶ 26-27. In almost every one of these conveyances, the Wild Trust reserved an express right in the Private Roads. An example is found in the source deed for Munroe. Joint St., ¶ 28. Joint Ex. 24.

19. On November 2, 1973, Sears Wolff conveyed to Wild Trust a second parcel of the 96+ Acre Remainder by deed recorded at the Registry in Book 1960, Page 256 ("1973 Wild Deed" and the "1973 Wild Parcel"). Joint Ex. 9. This second parcel was described as containing "12.067 acres, more or less." Joint Ex. 9. The lots deriving from the 1973 Wild Parcel are marked with orange "51's" on Joint Ex. 1 and Rev. Ex. 2. Joint St., ¶¶ 29-31. The 1973 Wild Parcel includes what later will become known as the "Stub Parcel."

20. Almost nine months later, on July 29, 1974, a so-called Confirmatory Deed for the 1973 Wild Parcel was recorded at the Registry in Book 2076, Page 169, again from Sears Wolff to the Wild Trust, and again stating the parcel conveyed was "12.067 acres more or less". ("Confirmatory Deed"). Joint St., ¶ 29; Joint Ex. 9. The Confirmatory Deed also stated:

Said conveyance is made together with a right of way with all others who now are or may hereafter be entitled thereto over the private ways known as Buggy Whip Road, Whiffletree Av. (sic), and Bridle Path shown on various plans of record and shown also on a plan entitled 'subdivision of Land in Brewster, Mass. dated March 1970 and filed in the Land Court by Wild Realty Trust . . . and numbered in the Land Court as plan no. 36554A-1, and over private ways as shown on [the 96+ Acre Plan]. Said rights of way may be used for all purposes for which rights of way are commonly used in Brewster. This deed is in confirmation of the deed recorded in book 1960 page 256; and is intended to clarify certain right so way as herein indicated.

Joint Ex. 9.

The 7-Acre Parcel and the Stub Lot (1974)

21. Also on July 29, 1974, the same day the Confirmatory Deed was recorded, by deed recorded with the Registry at Book 2016, Page 171, the Wild Trust conveyed a lot containing 29,305 square feet to Celia M. Sanderson and Leone Leary ("Sanderson" and "Leary"), (the "Stub Lot" and the "Stub Lot Deed"). Joint St. ¶ 35; Joint Ex. 11. The Stub Lot was described by reference to a plan entitled "Plan of land in Brewster, Barnstable County (west) Mass. as prepared for Wild Realty Trust, dated April 1974, Schofield Brothers Inc. Registered Professional Engineers and Land Surveyors, Orleans and Framingham Mass" (the "Stub Lot Plan"), recorded as Plan Book 286, Page 69. Joint Ex. 12.

22. The Stub Lot Plan shows the lot conveyed adjacent to and easterly of Buggy Whip Road, with the following language appearing inside the lot: "Not a buildable lot. To be used for future road purposes." The Stub Lot Deed likewise included the same language. Joint St., ¶ 35; Joint Exs. 11-12. The Stub Lot Deed stated:

Said conveyance is made together with a right of way with all others who now are or may be hereafter entitled thereto over the private way known as Buggy Whip Road shown on [the Stub Lot Plan] and shown also on [the March 1970 Registration Plan], and over the private way shown as Whiffletree Av. on the aforementioned plan filed in the Land Court, all to the extent that the grantor may give such right(s), to be used for all purposes for which ways are commonly used in the Town of Brewster including utilities and underground drainage. The grantor reserves a right of way for all purposes for which ways are commonly used in said Brewster, over the aforesaid parcel herein conveyed.

Joint St., ¶ 35; Joint Exs. 11-12. Despite this language, as discussed below, the Stub Lot Deed did not convey any interest in the Private Roads, because the Wild Trust had no rights to give.

23. At the time Wild Trust conveyed the Stub Lot to Sanderson and Leary, the Wild Trust owned all the parcels marked with the number "51" in orange on Rev. Ex. 2. Joint St., ¶ 36.

24. The Stub Lot would later become the location of the access from the Harrison Hill Subdivision to Buggy Whip Road. Joint St., ¶ 37.

25. In another conveyance on July 29, 1974, Sanderson acquired from Leary a seven-acre parcel of land adjacent to the Stub Lot (the "7-Acre Parcel"), by deed recorded with the Registry in Book 2076, Page 178. Joint St., ¶ 43; Def's. Ex. 48. The 7-Acre Parcel is shown as Parcels 1 and 2 on a plan entitled "Subdivision Plan of Land in West Brewster, Mass. for Leona Leary Et Al," dated September 26, 1973, recorded in Plan Book 286, Page 71. Joint St., ¶ 39; Joint Ex. 13.

26. Also on July 29, 1974, Sanderson acquired Leary's half interest in the Stub Lot, by deed recorded with the Registry in Book 2076, Page 179. Joint St., ¶ 44; Def.'s Ex. 49. The deed states that it is "subject to the rights of way referred to a deed from Robert P. Wild, Trustee of Wild Realty Trust to the above-named Leona Leary and Celia M. Sanderson recorded herewith."

The Hickey Deed and the Harrison Hill Subdivision (1995 to Present)

27. On August 25, 1995, Judith A. Ashley, as Executrix of Sanderson's Estate, conveyed the Stub Lot and the 7-Acre Parcel to Hickey and Robert Doeg ("Doeg"), by deed recorded with the Registry in Book 9841, Page 285 (the "Hickey Deed"). Joint St., ¶ 45; Joint Ex. 14. The Hickey Deed stated that it conveyed the Stub Lot "Together with and subject to rights of way of record."

28. On September 14, 1995, Doeg recorded a subdivision plan entitled "Plan of Land in Brewster, Ma. Prepared for Robert Doeg," at the Registry in Plan Book 517, Page 42 ("Harrison Hill Plan"). This subdivision plan (endorsed by the Brewster Planning Board two days earlier, on September 12, 1995 as "approval not required"), depicted the 7-Acre Parcel and the Stub Lot combined as a single parcel. Joint St., ¶ 46; Joint Ex. 21.

29. In 1996, Doeg and Hickey constructed a single-family residence on a portion of the 7-Acre Parcel, with an address at 162 Buggy Whip Road. The driveway for this residence runs in part through the Stub Lot. Joint St., ¶ 46; Joint Exs. 21-22.

30. On December 4, 1997, Hickey recorded a Declaration of Homestead in Registry Book 11097, Page 147, declaring the entirety of the land shown on the Harrison Hill Plan (both the Stub Lot and the 7-Acre Parcel), as a homestead. Joint Statement, ¶ 47; Joint Ex. 23.

31. On December 1, 2003, the Brewster Planning Board approved a subdivision of the Harrison Hill Parcel, subdividing the land into six lots (and "Harrison Hill Subdivision"). That plan is entitled "Definitive Subdivision of Land in Brewster, Massachusetts as subdivided and prepared for ROBERT K. DOEG, JR. and KAREN A. HICKEY" ("Harrison Hill Subdivision Plan"). The plan was recorded with the Registry at Book 589, Page 66 and shows six lots. Joint St., ¶ 48; Joint Ex. 15.

32. As shown on the Harrison Hill Subdivision Plan, all of the lots lie along and abut Harrison Hill Road, a dead-end way which runs through the area of the Stub Lot and connects to Buggy Whip Road. The six lots within the Harrison Hill Subdivision have frontage only on this dead-end way. Joint St., ¶ 50; Joint Ex. 15.

33. Hickey remains the owner of two unbuilt and vacant lots shown on the Harrison Hill Subdivision Plan, Lot 2 and Lot 5. Joint St. ¶ 49.

34. In order to travel by motor vehicle from Lot 2 or Lot 5 to the public roads in Brewster or the adjacent town of Dennis, Hickey must use the Private Roads (to Stony Brook Road in Brewster or Airline Road in Dennis). Joint St. ¶ 51-52; Joint Ex. 1.

35. All of the Plaintiffs (other than Teahan) own lots within the 96 Acre Parcel. These lots are shown as marked with Red "X's" on Rev. Exs. 1-2. Joint St., ¶¶ 54-55.

DISCUSSION

Standard of Review

"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). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr., supra, 436 Mass. at 644. In viewing the factual record presented with a motion for summary judgment, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Here, where the parties have cross-moved for summary judgment, relying solely on undisputed recorded instruments, "the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law." Denardo v. Bosworth, 20 LCR 344 (2012) (Misc. Case Nos. 06 MISC 324036 and 07 MISC. 346353) (Foster, J.) (citing World Species List—Natural Feature Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009)).

Claim to an Express Easement

The parties agree that there are only two means of access from the 7-Acre Parcel to a public way, via the Private Roads and either Airline Road in Dennis or Stony Brook Road in Brewster. Plaintiffs argue that Airline Road can be reached from the Private Roads only by making use of an easement the parties have denominated the "Dennis Gap Easement," which is not available to Hickey. Hickey, on the other hand, contends that Lots 2 and 5 in the 7-Acre Parcel have the benefit of an express easement to use both the Dennis Gap Easement and to pass and repass over easements in the Private Roads. As the party claiming the benefit of easements, Hickey bears the burden of proving the existence of those easements, their nature and extent, and her right to use them. Martin v. Simmons Props., LLC, 467 Mass. 1 , 10 (2014); Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). I first examine whether Hickey has a legal right to use the Dennis Gap Easement and then consider whether an express easement is available from the 7-Acre Parcel to Stony Brook Road.

The Dennis Gap Easement. I conclude that Hickey has no right to use the Dennis Gap Easement because, by its terms, that easement is only for the benefit of lot owners within the 96+ Acre Parcel. On June 15, 1956, the Sears family granted the Dennis Gap Easement to the Wolffs, their heirs and assigns. At that time, the Wolffs owned the entire 96+ Acre Parcel, which was largely undeveloped land and only the First Wolff Subdivision Plan 1955 had been approved. That plan laid out the entirety of Whiffletree Avenue, running north to south, connecting on the north with a public way, Stony Brook Road. By virtue of the Dennis Gap Easement, Whiffletree Avenue also connected on the south with another public way, Airline Road. The Dennis Gap Easement commences in Dennis at Airline Road and runs easterly where it crosses into Brewster and comes to the land of the Wolffs "where it shall connect with a similar way across the land of the grantors." That "similar way" was in fact Whiffletree Avenue. The Dennis Gap Easement provided the Wolffs, "their heirs and assigns forever the right to pass and repass in vehicles, on foot, or otherwise over a way across [the Sears'] property in Dennis. . . ." Notably, it further provided that "[t]he rights herein granted shall be considered as rights appurtenant to and running with the land of the grantees or any part or portion of their land."

"An easement is appurtenant to land when the easement is created for the benefit and does benefit the possessor of the land in his use of the land." Schwartzman v. Schoenig, 41 Mass. App. Ct. 220 , 223 (1996) (quoting Restatement of Property §453 with approval). As noted above, the Dennis Gap Easement stated that the easement was appurtenant to and ran with the land of the grantees or any part of portion of their land. Here, because the Dennis Gap Easement was created for the benefit of the 96+ Acre Parcel, it is appurtenant to land within that parcel only. The date of creation of an appurtenant easement fixes the extent of the dominant estate. Trayes v. McKenzie, 16 LCR 148 , 151 (2008) (Misc. Case No. 303726) (Trombly, J.). As such when the Dennis Gap Easement was created in 1956, the dominant estate included the 96+ Acre parcel and does not extend beyond that parcel. Although the Stub Lot Parcel itself lies within the 96+ Acre Parcel and has the benefit of the Dennis Gap Easement, the 7-Acre Parcel lies beyond and does not. In addition, as discussed in more detail below with respect to use of the Private Roads to access Stony Brook Road, Hickey has no right to use the Dennis Gap Easement because to do so would overload that easement. Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 , 686 (2016); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965).

Access to Stony Brook Road Via the Private Roads. Whether Hickey has a right to use the Private Roads to reach Stony Brook Road requires review of two sets of deeds, from each of two different developers of the 96+ Acre Parcel (the Wolffs and the Wild Trust). I begin with discussion of the Derelict Fee Statute.

The Derelict Fee Statute and the Private Roads. The Derelict Fee Statute "establishes an authoritative rule of construction for all instruments passing title to real estate abutting a way . . . whether in existence or merely contemplated (so long as it is sufficiently designated). . . ." Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242-43 (1992) (footnote omitted). In pertinent part, that statute:

mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way -- to the center line if the grantor retains property on the other side of the way or for the full width if he does not -- unless "the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line."

Id. (quoting G.L. c. 183, §58). Even though the Derelict Fee Statute was not enacted until 1971 (well after the Wolffs first conveyed Plaintiffs' lots between 1957 and 1968), it applies retroactively (with two exceptions, neither of which is here applicable). Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 803 (2003). Because the Derelict Fee Statute is conclusive, evidence of other attendant evidence of the parties' intent is not probative unless the "instrument passing title evidences a different intent by an express exception or reservation." Tattan, 32 Mass. App. Ct. at 243-44.

Four of Plaintiffs (Ani, Toolas, Chambers and Cali) derived their title between 1957 and 1967 from the Wolffs, the original developer of the 96+ Acre Parcel. Each of these source deeds described the lot conveyed as bounded by a private way identified as Whiffletree Avenue. For instance, the source deed for Ani's lot described the lot as bounded "by a Whiffletree Avenue as shown on [the First Wolff Subdivision Plan 1955]." This description triggers application of the Derelict Fee Statute. Murphy, 348 Mass. at 678.

In none of Plaintiffs' source deeds did the Wolffs expressly reserve any ownership of the fee in Whiffletree Avenue. For instance, Ani's source deed provided that the lot was conveyed:

"Together with a right of way in common with others now or hereafter entitled thereto and with the Grantors, their heirs and assigns for all purposes for which ways are commonly used in the Town of Brewster over the said 40-foot way shown on [First Wolff Subdivision Plan 1955] and over Whiffletree Avenue as shown on said plan to Stony Brook Road." [Note 16]

All four source deeds referenced Whiffletree Avenue as shown on either the First Wolff Subdivision Plan 1955 or the 1957 Wolff Subdivision Plan. The latter plan also showed a portion of Buggy Whip Road and was referenced in the Ani's source deed along with Whiffletree Avenue, as "the said 40-foot way." These simple deed references to a plan are insufficient to establish a fee reservation under the Derelict Fee Statute. Tattan, 32 Mass. App. Ct. at 245. Thus, each of the source deeds from the Wolffs conveyed title to that portion of the Private Road adjacent to the lot, to the centerline of the road.

Each of these four source deeds from the Wolffs also conveys an easement together with other lot owners to use the Private Roads. See Denardo, 20 LCR at 352. (Conveyance of lots with grant to use ways "in common with all others legally entitled thereto" reserves right to grant use of ways). [Note 17] Where mention is made of an easement as appurtenant to land conveyed and a deed references a plan, the plan must be considered as a part of the deed, so far as is necessary to aid in the description of the easement. Labounty v. Vickers, 352 Mass. 337 , 344 (1967); Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). Thus, a conveyance that includes the right to use ways as shown on a specified plan in common with others serves to grant and reserve an easement to use those ways for the benefit of all lots shown on the plan that are held or conveyed by the common grantor. Denardo, 20 LCR at 352, (citing Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 50-51 (1980)).

The Remainder Grants, the Stub Lot Parcel and the 7-Acre Parcel. Hickey claims a right to use the Private Roads from Stony Brook Road to access lots within the 7-Acre Parcel based on the later remainder grants from the Wolffs to Sears Wolff, and from Sears Wolff to the Wild Trust. In this regard, the source deed for the Munroe lot is instructive. By the time the source deed for the Munroe lot was conveyed in 1970, the Wolffs no longer owned any of the 96+ Acre Parcel and had conveyed the Sears Wolff 96+ Acre Remainder to Sears Wolff. Much like the earlier source deeds from the Wolffs, the Munroe source deed described that lot as bounded by Buggy Whip Road as shown on the 1970 Sears Wolff Buggy Whip Plan, conveyed together with a right of way over ways as shown on a plan. In addition, the Munroe source deed included an express reservation, as follows: "The Grantor specifically reserves a right of way over so much of said lot as by implication of law lies within the limits of any ways . . . ." The parties agree in their Joint Statement of Undisputed Facts that the Wild Trust included this express reservation in almost of the source deeds for lots within the 1968 Wild Parcel. Joint St., ¶ 28. [Note 18]

I next consider whether the Wild Trust's express reservations of easement rights are sufficient to permit the lots within the 7-Acre Parcel to reach Stony Brook Road. In the first instance, Hickey relies on the Stub Lot Deed from the Wild Trust to Sanderson in 1974. That deed does purport to convey a right of way over the Private Roads, as follows:

Said conveyance is made together with a right of way with all others who now are or may be hereafter entitled thereto over the private way known as Buggy Whip Road shown on [the Stub Lot Plan] . . . and over the private way shown as Whiffletree Ave. on the aforementioned plan filed in the Land Court, all to the extent that the grantor may give such right(s), to be used for all purposes for which ways are commonly used in the Town of Brewster including utilities and underground drainage. The grantor reserves a right of way for all purposes for which ways are commonly used in said Brewster, over the aforesaid parcel herein conveyed.

In addition, Hickey points to language which appears in both the Stub Lot Deed and on the Stub Lot Plan, as follows: "Not a buildable lot. To be used for future road purposes." Hickey argues that because her predecessors in interest owned the 7-Acre Parcel abutting the Stub Lot at the time that they acquired the Stub Lot with this road use limitation, the Stub Lot may be used to connect the 7-Acre Parcel with the Private Roads.

Hickey's argument is overly simplistic since the Stub Lot Deed alone cannot confer access to lots on the Harrison Hill Subdivision. No matter the Wild Trust's intent, it could only grant an easement consistent with its rights in the Private Roads. "Where . . . the grantor has nothing to convey . . . [t]he purported conveyance is a nullity, notwithstanding the parties' intent." Alexander v. Juchno, 21 LCR 621 , 630 (2013) (Misc. Case No. 10 MISC 437103) (Foster J.) (quoting Bongaards v. Millen, 440 Mass. 10 , 15 (2003)). Notably, the Stub Lot Deed cautioned that such rights are only conveyed "to the extent that the grantor may give such right(s)."

It is therefore necessary to consider what rights the Wild Trust owned in the Private Roads at the time it conveyed the Stub Lot to Hickey's predecessors in title. The 1958 remainder deed from the Wolffs to Sears Wolff conveyed the undeveloped land within the 96+ Acre Parcel "together with all easements and rights of record or appurtenant to that land and subject to easements, restrictions and rights of record insofar as the same may now be in force and effect." Sears Wolff thereafter recorded the 1960 Buggy Whip Layout Plan, and then conveyed several parcels to the Wild Trust. Hickey relies on three deeds from Sears Wolff to the Wild Trust: the 1968 Wild Deed of 19.701 acres, the 1973 Wild Deed of 12.067 acres, and the Confirmatory Deed from 1974.

The relevant language in the 1968 Wild Deed states: "Conveyance is made together with a right of way with all others who now or may hereafter be entitled thereto over the private ways as shown on the [96+ Acre Plan]." Joint St., ¶¶ 24-25; Joint Ex. 7. The 1973 Wild Deed, which includes what later became known as the Stub Lot, contains essentially the same language. [Note 19] This reference in the two Wild Deeds to "ways as shown on the 96+ Acre Parcel" is of interest because, in fact, the 96+ Acre Plans depicted only undeveloped land, without any ways whatsoever. The first ways did not appear on a plan of the 96+ Acre Parcel until the Wolffs recorded the First Wolff Subdivision Plan 1955. On July 29, 1974, almost nine months after recording the 1973 Wild Deed, Sears Wolff recorded a so-called Confirmatory Deed for that parcel at the Registry in Book 2076, Page 169. The Confirmatory Deed stated that it was "in confirmation of the [1973 Wild Trust Deed]; and is intended to clarify certain rights of way as herein indicated." The Confirmatory Deed gave the Wild Trust the specific right to use "Buggy Whip Road, Whiffletree Avenue and Bridle Path shown on various plans of record…," as well as the 96+ Acre Parcel. Specifically, it stated:

Said conveyance is made together with a right of way with all others who now are or may hereafter be entitled thereto over the private ways known as Buggy Whip Road, Whiffletree Av. (sic), and Bridle Path shown on various plans of record and shown also on a plan entitled 'subdivision of Land in Brewster, Mass. dated March 1970 and filed in the Land Court by Wild Realty Trust . . . and over private ways as shown on [the 96+ Acre Plan]. Said rights of way may be used for all purposes for which rights of way are commonly used in Brewster.

I conclude that Sears Wolff granted to Hickey's predecessors in interest all rights that he then had in ways within the 96+ Acre Parcel, including three Wolff subdivision plans and the Sears Wolff 1960 Buggy Whip Layout Plan, which shows the figure 8 configuration of roadways. By consistently referencing the 96+ Acre Parcel in all three deeds to the Wild Trust, it is clear that Sears Wolff did not intend to grant the Wild Trust a right to use the ways within the 96+ Acre Parcel to access areas beyond that parcel. In addition, as discussed below, Sears Wolff could not grant a right to use the ways to access the Hickey parcel because he had no rights to give.

The primary stumbling block for Hickey is that lots in the 7-Acre Parcel do not have easements rights coextensive with the rights of the Stub Lot. Lots within the 7-Acre Parcel do not abut the Private Roads, but rather Harrison Hill Road. I conclude that the Wild Trust could not convey the right to use the Private Road to access lots in the 7-Acre Parcel because to do so would run afoul of the after-acquired property doctrine. It is well-established in Massachusetts that, absent the consent of the owner of the servient estate, the use of an appurtenant easement to benefit property located beyond the dominant estate constitutes an overloading of that easement. Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 , 686 (2016) (quoting Murphy, 348 Mass. at 678-679 ("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.")). In Taylor, the Supreme Judicial Court affirmed the long- standing, bright-line rule in Murphy, and disallowed an argument that a fact-intensive inquiry be undertaken on a case-by-case basis. Taylor, at 683.

This case is factually similar to Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 (2005), where a developer owned a landlocked parcel adjacent to an existing subdivision and sought access for his proposed project over a single lot in the existing subdivision. Although the developer held an easement over the single lot (much like the Stub Lot), the developer also relied on use of the private roads in the existing subdivision to reach the public ways. In Southwick, the Appeals Court concluded that this use of the private roadways would overload the developer's easement in the private roads because that easement was appurtenant to its ownership of the single lot and the subdivision itself enjoyed no appurtenant easement to use the private roads. Id. at 319. Here, Hickey's use of the Private Roads to benefit Lots 2 and 5 would overload the Stub Lot's appurtenant easement to use those roads. As owners of the fee in the Private Roads abutting their lots, Plaintiffs do not consent to the use of those roads to benefit lots in the 7-Acre Parcel. McLaughlin v. Board of Selectmen of Amherst, 38 Mass. App. Ct. 162 , 169 (1995) (After- acquired property may not be added to the dominant estate without the consent of the burdened estates.).

Hickey's argument that the 7-Acre Parcel is not "after-acquired" property because Sanderson and Leary acquired the 7-Acre Parcel on the same day they acquired the Stub Lot is unavailing. The dominant estate for an appurtenant easement is established as of the date an easement is created, and not long afterwards as Hickey would have it. Trayes, 16 LCR at 151. [Note 20]

Easement by Implication or Necessity

Hickey also claims that Lots 2 and 5 in the Harrison Hills Subdivision hold an easement to use the Private Roads by implication or necessity. In support, Hickey suggests that the Wild Trust carefully and consistently reserved rights in the Private Ways and that the Stub Lot Deed evidenced an intent by the Wild Trust to convey an easement benefitting the entirety of the Harrison Hill Subdivision. Here again, the burden of proving the existence of an implied easement falls to Hickey as the party asserting the easement. Reagan v. Brissey, 446 Mass. 452 , 458 (2006).

Hickey is correct that ascertaining intent is determinative in deciding whether Lots 2 and 5 hold an easement by implication. An implied easement arises when there is no easement of record, but "there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created." Mount Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104 (1933). "[I]mplied easements . . . do not arise out of necessity alone. The origin of an implied easement…must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Bucks Hills Realty, LLC v. Gill, 25 LCR 29 , 34- 25 (2017) (Misc. Case. No. 15 MISC 000175) (Piper, J.) (quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). The scope of an easement is determined from the parties' intent, ascertained from the relevant instruments and objective circumstances to which they refer. McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359 , 364 (1996).

Beyond that starting point, however, I cannot agree with Hickey because she focuses on the intent of the Wild Trust, Sanderson and Leary in 1974, when the Stub Lot was conveyed. That timeframe is too remote and the actions of Hickey's predecessors in title were unilateral and without the consent of the other lot owners holding a fee in the Private Roads. Boudreau, 29 Mass. App. Ct. at 633. Prior to the conveyance of the Stub Lot parcel to Sanderson and Leary in 1974, there is no indication that any of the grantors of land within the 96+ Acre Parcel intended that land beyond that parcel would have the benefit of the use of the Private Roads. The first inkling that the Private Roads within the 96+ Acre Parcel might be used to benefit land beyond that parcel appears in the Stub Lot Deed, well after many of the lots along the Private Roads had been conveyed to homeowners. I find in the record no reason to infer that easements in the Private Roads were intended to extend to lots in the 7-Acre Parcel or that the Private Roads would be burdened by this additional use. "Implied terms cannot be imported into a conveyance because of the needs of one of the parties of which the other party has neither knowledge nor notice . . . ." Dale, 305 Mass. at 104.

Hickey argues that the plans referenced in the source deeds from the Wolffs showed no defined limit to the extent of the roadways or the benefited land. Hickey is correct that the First Wolff Subdivision Plan 1955 showed only a handful of lots laid out along a portion of Whiffletree Avenue. [Note 21] Likewise, the Wolff 1957 Subdivision Plan showed the intersection of Whiffletree Avenue and Buggy Whip Road, but again was only a partial plan. What Hickey ignores is that the deed from the Wolffs to Sears Wolff conveying the Sears Wolff 96+ Acre Remainder specifically described the land by reference to the 96+ Acre Plan. Likewise, both the 1968 Wild Deed and the 1973 Wild Deed from Sears Wolff grant rights of way over the private roads as shown on the 96+ Acre Plan, and not beyond. Even the Confirmatory Deed describes the rights of way with reference to the 96+ Acre Plan.

I conclude the plans do evidence a clear intent to limit use of the ways to owners of lots within the 96+ Acre Parcel. Although the 96+ Acre Plan does not show the layout for any roads or ways, it does clearly depict the entirety and extent of the 96+ Acre Parcel. Moreover, when Sears Wolff recorded the 1960 Buggy Whip Layout Plan in 1960, a comprehensive system of roads appeared of record. That plan laid out a closed loop road system entirely within the 96+ Acre Parcel, reaching all areas within the parcel and not extending beyond the parcel limits (excepting the two connections to public ways which appeared on the 96+ Acre Plan, to Airline Road across the Dennis Gap Easement and to Stony Brook Road). The only reasonable conclusion is that the 96+ Acre Plan and its limits became part of the contract for purchasers of lots from the Wild Trust. "A plan referred to in a deed becomes part the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Reagan, 446 Mass. at 458, (first quoting Labounty v .Vickers, 352 Mass. 337 (1967); and then quoting Jackson v. Knott, 418 Mass. 704 (1994)).

What does not appear on the plans referred to in the source deeds is also significant and further supports use of the Private Roads limited to owners of lots within the 96+ Acre Parcel. Boudreau, 29 Mass. App. Ct. at 630 ("Nor do the plans show any proposed extension of the ways into the locus. Certainly there is nothing on the plan to indicate that the grantors intended to develop the locus in to forty-one house lots."). There is no evidence that the Private Roads actually provided passage to the 7-Acre Parcel when it was undeveloped land. Boudreau, 29 Mass. App. Ct. at 630-31. Compare Webster Ventures, LLC. v. Dumore, 24 LCR 769 , 773 (2016) (15 MISC 000324) (Foster, J.) (insufficient evidence to support finding of implied easement where there were no ways shown on a 1924 plan extending onto the neighbor's property); and Bucks Hills Realty, LLC, 25 LCR at 36 ("[N]o evidence that, prior to conveyance of the house lots, any use was being made of what became Saddleback Road to access Parcel 1HB . . . .Passage to the rear land was simply not occurring."); with Cannata v. Berkshire Natural Res. Council, Inc., 73 Mass. App. Ct. 789 , 796 (2009) (easement rights upheld where "it was evident that the subdivision abutted an approximately 800-acre parcel of undeveloped land owned by [defendant] and that the plaintiffs' rights to pass over the ways was subject to those of [defendant]" based on the express language of plaintiffs' easement and defendant's ownership of fee in the way). I conclude that Hickey's claim of an easement by implication is unsupported by the evidence and inconsistent with the clear intent of the Wolffs and Sears Wolff to create ways for use by owners of the 96+ Acre Parcel.

Nor has Hickey established an easement by necessity for the benefit of lots within the 7-Acre Parcel. An easement by necessity arises when land is held by a common grantor and a conveyance of a portion of the land renders the grantor's remaining land landlocked, based on the presumed intent of the grantor to retain access to his remaining land. Adams v. Planning Bd. Of Westwood, 64 Mass. App. Ct. 383 , 390 (2005). The party claiming an easement by necessity must establish: (1) the dominant and servient estates were owned by the same person, (2) a unity of ownership that was severed by a conveyance, and (3) the conveyance created a necessity for an easement. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005). Here, where there was no previous common ownership involving the 7-Acre Parcel, a claim of easement by necessity fails. Nylander v. Potter, 423 Mass. 158 , 162 (1996)

CONCLUSION

For the reasons stated above, Plaintiffs' motion for partial summary judgment is Allowed, and Defendant's cross-motion for partial summary judgment is Denied.

A telephone status conference is scheduled for April 9, 2020 at 2:30 p.m. to discuss the Defendant's remaining defense of laches.