This battle between abutting owners of shorefront property in Manchester By The Sea is being fought on two legal fronts. The plaintiff filed this action asserting that certain restrictive covenants pertaining to its property had expired, so as to facilitate development of its property (which is opposed by the defendant trust). The defendant trust not only argues that the restrictive covenants have not expired, but also opened up a second front by additionally arguing that rights granted to the plaintiff's predecessor in title to access the shore over the defendant's land were personal to the predecessor, and therefore no longer can be used by the plaintiff to access the shore.
On April 25, 2019, plaintiff Tidewood, LLC filed a complaint for declaratory judgment seeking a declaration that certain restrictions set forth in the deed to Tidewood's predecessor in title had expired as a matter of law and were no longer enforceable, pursuant to G. L. c. 184, §23, and that certain other restrictions on the trust's land had been successfully renewed. [Note 1] The defendant Trustees of Shelving Rock Trust filed three counterclaims: for declaratory judgment that the restrictions in the deed to Tidewood's predecessor in title are still valid and in effect; that Tidewood has no right to use a shore and path easement granted to Tidewood's predecessor in title; and for damages relating to Tidewood's consequent trespass on Trust property. The Trust also filed a third-party complaint against two Tidewood-related individuals, claiming they had trespassed on Trust property by their use of the shore path. The complaint and third-party complaint sought damages and injunctive relief relating to the alleged trespass on the Trust property by Tidewood and the two individuals. [Note 2]
On June 12, 2019, Tidewood filed a motion for summary judgment, arguing that the restrictions in the Barker deed were no longer enforceable, and that Tidewood and its guests were entitled to use the shore and path easement. [Note 3] On the same date, the third-party defendants Borgeson and Maxwell filed a motion to dismiss the Trust's claims against them. [Note 4]
On July 31, 2019, the defendant Trust filed a cross-motion for summary judgment, seeking a judgment that the restrictions in the Barker deed are still enforceable and that the shore and path easement is no longer valid for use by Tidewood or the third-party defendants. [Note 5]
A hearing was held before me on September 16, 2019, after which I took the pending cross-motions for summary judgment and the motion to dismiss under advisement. For the reasons stated below, I find and rule that the restrictive covenants have expired, and that the shore and path easement remains valid and in effect.
FACTS
The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment and motion to dismiss:
Property and Parties
1. The property that is the subject of this dispute is situated at 301 Summer Street, Manchester by the Sea. [Note 6] The property is labeled "Lot B" on a plan of land entitled "Plan of Land in Manchester, MA. Property of Shelving Rock Trust," dated April 22, 1981, prepared by Hancock Survey Associates, Inc., and recorded with the Essex South District Registry of Deeds ("Registry") in Plan Book 173, Plan 2. [Note 7]
2. The defendant Trustees of Shelving Rock Trust (the "Trust") owns land abutting Lot B, including 299 and 305 Summer Street, Manchester by the Sea ("Lot A" and a 39-acre parcel referred to as "Remaining Land"). [Note 8]
3. The plaintiff Tidewood, LLC ("Tidewood") is a limited liability company organized under the laws of Massachusetts. [Note 9]
4. Third-party defendant Scott Borgeson ("Borgeson") is an individual who at times resides at the Lot B property and exercises some control over Tidewood. [Note 10]
5. Third-party defendant Ghislaine Maxwell is an individual who sometimes resides at the Lot B property. [Note 11]
History of Property Ownership
6. The Trust formerly held title to Lot B. The Trust entered into a purchase and sale agreement with Deveraux and Jilda Barker (the "Barkers") for sale of Lot B on June 21, 1982. [Note 12] The agreement stated, in pertinent part:
"The Sellers agree to allow the Buyers and their immediate family members the use of the tennis court and various paths and ways in addition to those described in the Quitclaim Deed attached hereto . . . This right shall be personal to the Buyers and shall terminate if either they or the Sellers transfer their respective property." [Note 13]
7. The Trust conveyed Lot B to the Barkers by deed dated July 20, 1982 and recorded with the Registry on July 20, 1982 in Book 6958, Page 595 (the "Barker deed"). [Note 14]
8. The Barker deed conveyed Lot B subject to certain restrictions, including in relevant part the following:
1. Lot "B" shall be used solely for one single family residence.
2. There shall be a forty-foot setback for all new construction (including fences) or additions to existing structures on Lot "B" from the property lines thereof and no new construction or additions to existing structures . . . shall be made within that zone without the prior approval of the Grantors, such approval not to be unreasonably withheld.
3. No additions or reductions shall be made to the structures on Lot "B" which will result in an increase or decrease or more than two hundred (200) square feet in the floor area thereof . . . nor shall any new construction be made in excess of two hundred square feet, without prior approval of the Grantors, such approval not to be unreasonably withheld.
4. There will be no substantial alteration, except as aforesaid, to the exterior of the [home on Lot "B"], including fenestration, roof lines, chimneys, cladding material and the like, without the prior approval of the Grantors, such approval not to be unreasonably withheld. [Note 15]
9. The Barker deed further provides that the restrictions on Lot B will be enforceable only as long as the following people have an ownership interest in the adjacent Lot A, or at least 12 acres of the Remaining Land abutting Lot B: Thomas Halsted, Charles Shurcliff, Harriot Appel, Joan Shurcliff, Isabella Halsted, Mary Thompson, Elinor Barr, Harriot Rive, Pauline Hollingsworth, and the "spouses, descendants and spouses of descendants of the individuals listed[.]" [Note 16]
10. On the first page of the Barker deed, the Grantees were listed as "B. Deveraux Barker III and Jilda B. Barker of Summer Street, Manchester, Massachusetts (the 'Grantees')." [Note 17] Later in the deed, the term "Grantees" was also defined as "the above-named Grantees and their heirs, legal representatives and assigns." [Note 18]
11. The Barker deed also granted an easement to the Barkers with the conveyance of Lot B ("shore and path easement"), specifically:
"[the right to] use the shore abutting Grantors' remaining Land shown on the Plan . . . and the foot path running along the shore, all shown on the Plan . . . provided that the foregoing rights of use may only be exercised by the Grantees, their family, their descendants and their guests[.]" [Note 19]
The easement grant was preceded by a prefatory phrase stating that Lot B was conveyed "with the benefit of the rights, easements and restrictions but subject as therein limited[.]" [Note 20]
12. The trustees of the Trust recorded a Notice of Renewal of Restrictions on July 19, 2012, purporting to renew the restrictions on Lot B (which benefitted Lot A) in the Barker deed for another twenty years. [Note 21] The notice was recorded with the Registry in Book 31535, Page 382. [Note 22]
13. The Barkers conveyed Lot B to Tidewood by quitclaim deed dated June 23, 2016, and recorded with the Registry on June 30, 2016 in Book 35052, Page 144. [Note 23]
The Present Dispute
14. Tidewood and its guests have previously entered the Trust property, for purposes including the use of the shore and path easement. [Note 24]
15. Subsequently, in its counterclaim in this action, the Trust asserted that the easement rights to use the foot path along the shore and the right to use the shore for passive recreational purposes and for swimming from the rocks in the cove south of Lot B, were personal to the Barkers, and expired upon the Barkers' sale of Lot B to Tidewood. [Note 25]
16. Tidewood appeared before the Manchester Zoning Board of Appeals on February 28, 2018, seeking approval of its planned construction of a natural swimming pool and a two- story garage with in-law apartment. [Note 26] The Trust spoke at the hearing through its counsel, opposing the proposed construction on the grounds that it would violate the restrictions in the Barker deed. [Note 27]
DISCUSSION
"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
Additionally, "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 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Though the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.
I. THE DEED RESTRICTIONS IN THE BARKER DEED HAVE EXPIRED PURSUANT TO THE LIMITATIONS IN G. L. c. 184, §23.
Generally, restrictions on land are disfavored, and "are to be construed against the grantor in favor of freedom of alienation." Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., 433 Mass. 285 , 290 (2001). Consistent with the legislature's intent, courts construe G. L. c. 184, §23 to limit the validity of interminable property restrictions in a deed. Restrictions that are not subject to a definite time period, nor set to end on the happening of a certain event, are unlimited and will therefore expire by statute after thirty years. G. L. c. 184, §23; Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., supra, 433 Mass. at 289; Flynn v. Caplan, 234 Mass. 516 , 520 (1920) ("The evident purpose of the statute [is] to terminate restrictions that have been in force 30 years, unless it appear[s] in the instrument creating them that they were to run for a definite term of years, or until the happening of an event certain to occur. The word 'unlimited' means without confines, unrestricted, boundless."). The operation of this statute to force the expiration of unlimited restrictions after thirty years cannot be altered by any attempt to renew them with a notice of renewal of the restrictions. Brear v. Fagan, 447 Mass. 68 , 7677 (2006); Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., supra, 433 Mass. at 288289 ("[Section] 23 sets a 'term' of thirty years in the absence of any stated time frame in the parties' underlying agreement, and nothing in §27(b) allows for any extension of that term. All §27(b) does is extend the 'period of enforceability' for any agreed term of restriction that is longer than 30 years."). Thus, any attempt at filing a notice of renewal of a restriction, to extend a restriction that was unlimited in the underlying agreement, will be ineffectual, and the restriction will expire by statute after thirty years. Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., supra, 433 Mass. at 289; Brear v. Fagan, supra, 447 Mass. at 7677.
Conversely, if the restrictions are for a definite term of years, or are set to expire upon the happening of an event certain to occur, the restrictions will be valid for that period. Restrictions that are definite in duration, but are nonetheless set to expire more than thirty years after their inception, may be renewed by the filing of a notice of restriction before that period has elapsed in order to remain valid thereafter. Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., supra, 433 Mass. at 288. These renewals may extend the restrictions for successive twenty-year periods, but cannot extend the restriction beyond the definite period stated in the original instrument. G. L. c. 184, §27; Flynn v. Caplan, supra 234 Mass. at 520.
The parties do not dispute that unlimited restrictions will expire after thirty years, nor that definite but limited restrictions of longer than thirty years duration can be renewed. The principal debate between the parties is instead, whether the deed restriction in this case is, in fact, indefinite and unlimited, or whether it is for a definite period.
Here, the restriction in the Barker deed states that it shall be in force for so long as any of nine listed individuals has an ownership interest in Lot A or in at least twelve acres of the remaining Trust land. Further, the restriction also states that it is to be in effect for so long as the "spouses, descendants[,] and spouses of descendants of the individuals" listed have an ownership interest in Lot A or at least twelve acres of the remaining property. The named individuals will certainly die, and so their ownership interests in Lot A or the remaining land are circumstances of limited duration which would not be subject to the thirty-year limitation in the statute.
However, the ownership interests of descendants or spouses of descendants cannot be characterized as being limited in duration or subject to the happening of a certain event. As the defendant points out, all such descendants will individually die, eventually - and therefore the end of their ownership interests is definite. However, what is not definite (and cannot be made so without the benefit of seeing the future) is whether all descendants and their spouses will eventually die. It is impossible to know whether the descendants and spouses of the descendants of the nine listed individuals will leave behind issue, who themselves may or may not leave behind issue, and so on ad infinitum. Because the descendants of the present list of members of the Trust could maintain their ownership interest in Lot A or the remaining Trust property for an indefinite and possibly endless period of time, it is similarly impossible to determine when such ownership interest(s) cease to exist, causing the restriction to end. For this reason, the restriction cannot be characterized as limited to a definite term of years or until the happening of an event certain to occur, as it is not certain that there will ever come a time when these individuals do not have descendants who retain an ownership interest in Lot A or the remaining land, however distant.
Because the restriction is unlimited, it is subject to the limitation provisions of G. L. c. 184, §23 and therefore it terminated thirty years after it was created. The Trust's attempt to renew the restrictions was ineffective; such renewal would only apply to extend the enforceability of the restriction if it were for a definite period of time. The restriction was created by deed on July 20, 1982. Thus, it expired by operation of statute on July 20, 2012. Tidewood's plans to build on Lot B, in contravention of the earlier restriction, did not emerge until sometime in 2018. [Note 28] Therefore, Lot B was no longer subject to the 1982 restriction when Tidewood began planning to build an additional structure on Lot B. [Note 29]
II. THE SHORE AND PATH EASEMENT GRANTED TO THE BARKERS WAS AN APPURTENANT EASEMENT THAT RUNS WITH THE LAND AND DID NOT TERMINATE UPON THE CONVEYANCE TO TIDEWOOD.
"A 'restriction on the use of land' is a right to compel the person entitled to possession of the land not to use it in specified ways." Labounty v. Vickers, 352 Mass. 337 , 347 (1967). Restrictions can be imposed by "a negative easement, an equitable servitude, or a covenant running with the land." Patterson v. Paul, 448 Mass. 658 , 662 (2007). A negative easement is one which restricts the uses that a landholder can make of his property. Id. at 663. As noted above, such restrictions on land are subject to the limitations set forth in G. L. c. 184, §23. Id. at 662.
Conversely, an affirmative easement is not considered a restriction subject to the limits laid out in G. L. c. 184, §23. Id. at 663, citing Myers v. Salin, 13 Mass. App. Ct. 127 , 135136 & n. 11 (1982). An affirmative easement, rather than being a restriction on what a landholder can do, "creates a nonpossessory right to enter and use land in the possession of another, and obligates the possessor not to interfere with the uses authorized by the easement." Patterson v. Paul, supra 448 Mass. at 663, quoting Restatement (Third) of Property §1.2(1) (2000). Thus, the legal treatment of a grant of an easement will necessarily differ from treatment of a deeded restriction. In the present case, the Trust deeded an express easement to the Barkers, and now seeks to prevent Tidewood (the Barkers' successor in interest) or its guests from making use of the easement that was granted to the Barkers.
"An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land." Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996), quoting Restatement of Property §453 (1944). An easement which is in the nature of "a personal interest in or right to use the land of another" is an easement in gross. McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). Simply put, this type of easement benefits a person or persons, rather than a certain parcel of land or the owner's use of the parcel. Hamilton v. Myerow, 17 LCR 234 , 236 (2009), citing Goodrich v. Burbank, 94 Mass. 459 (1866). "An easement is not presumed to be [in gross] unless it cannot be construed fairly as appurtenant to some estate." Schwartsman v. Schoening, supra, 41 Mass. App. Ct. at 223, citing Willets v. Langhaar, 212 Mass. 573 , 575 (1912).
The Trust argues that the shore and path easement is properly characterized as an easement in gross, as it was granted specifically to the Barkers, and is thus an easement that could not be passed on to Tidewood when it acquired Lot B. This argument is unavailing. The shore and path easement is best characterized as appurtenant in nature as it benefits the owners in their use of the land, and there is insufficient language in the grant to overcome the presumption against easements in gross. See Schwartsman v. Schoening, supra, 41 Mass. App. Ct. at 223. To the contrary, the evidence is that the easement was intended to benefit the owners of Lot B as an appurtenant right. The shore and path easement in the Barker deed was conveyed together with Lot B, in a manner indicating that the easement was intended to benefit the grantees in their use of Lot B, and not independently of their ownership of Lot B. Notwithstanding the limitation of the grant to exercise only by the "Grantees, their family, their descendants and their guests," the Barker deed integrated the grant with the conveyance of Lot B, indicating that the use of the easement was for the benefit of the owners of Lot B, and not an independent, personal grant. Hence, the Barker deed provides that "Lot 'B' is hereby conveyed together with the benefit of the following rights, easements and restrictions . . ." including the shore and path easement.
Further evidence that the shore and path easement was intended as an appurtenant easement and not as an easement in gross is found by examining the grant of the shore and path easement in context with the other easement granted along with it in the Barker deed. The shore and path easement is one of two easements granted in numbered paragraphs in the Barker deed following the above-quoted language that "Lot 'B' is here by conveyed together with the benefit of the following easements and restrictions
" The first numbered paragraph grants a concededly appurtenant easement necessary for access to and egress from Lot B, over a private lane to and from Summer Street, the nearest public way. Without this easement, Lot B would be landlocked and inaccessible. Upon their sale of Lot B to Tidewood, the Barkers retained no rights over the private lane to access Lot B. Accordingly, they retained no rights that would allow them to get to the shore path that would enable them to utilize the shore and path easement. Any conclusion that the shore and path easement was in gross and therefore was retained by the Barkers after they sold Lot B is based on illusory access to that path; the shore and path easement no longer retained any viability as an easement for use by the Barkers after their sale of Lot B to Tidewood. The illusory nature of the shore and path easement - unless it is tied to ownership of Lot B (along with the easement over the private lane necessary to access Lot B) - further militates in favor of the conclusion that the shore and path easement is inextricably tied to continued ownership of Lot B, and is therefore an appurtenant easement, and against a conclusion that it is an easement in gross, but one that would be unusable because of lack of access, retained by the Barkers after their sale of Lot B.
Thus reading the language of the grant in context, there is no indication that the Trust intended to grant an easement in gross to the Barkers, which they would then be able to exercise even after they no longer owned Lot B. Having concluded that the shore easement is appurtenant, it remains to assess whether the easement was nonetheless temporary or restricted, in purpose or in time.
Easements benefitting a parcel or its use of the parcel may be granted temporarily, with a certain term of years or the happening of a certain event marking the end of the easement's validity. See Naiman v. Zoning Bd. of Appeals for Town of Lincoln, 22 LCR 61 (2014) (temporary easement granted over servient parcel for purposes of constructing and grading a driveway to benefit the dominant parcel); Boston Edison Co. v. Massachusetts Water Resources Authority, 459 Mass. 724 , 727 (2011) (temporary access and storage easements burdening servient estate granted to dominant estate to enable sewage project). Additionally, an easement for a certain purpose - even if it is not expressly limited as to time - can ultimately prove temporary if that purpose vanishes. See Carr v. McNally, 1987 WL 966047, *1 (Mass. Land Ct., Cauchon, J.) (dominant estate retained "a temporary easement for passage" over the servient estate to the street, to terminate at a later date when certain plans had been filed); Cotting v. City of Boston, 201 Mass. 97 , 102 (1909) ("[I]t appears to have been the intent of the parties to continue the [easement] only so long as either of the buildings then in existence [at the time of the grant] continue to stand, and not to create a perpetual easement attaching to the land of the dominant estate.") (emphasis added).
The question next becomes whether, under the language defining the easement granted in the deed, the appurtenant right to pass along the shore trail was extinguished when the Barkers sold Lot B because it was temporary, or whether it persisted despite the conveyance to Tidewood and inured to Tidewood's benefit. This is a question of the intent of the parties to the Barker deed.
An easement granted by deed is subject to the legal principles governing deed interpretation. "The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). Similarly, where a deed of easement is granted, the grant "must be construed with reference to all its terms and the then existing conditions so far as they are illuminating." Hamouda v. Harris, 66 Mass. App. Ct. 22 , 26 (2006), quoting Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990). The words of the grant are most important, "but those words may be construed in light of the attendant circumstances" and the circumstances to which they refer. Hamouda v. Harris, supra, 66 Mass. App. Ct. at 26 (citations omitted). When terms of a deed apparently conflict, the general terms of the deed will yield to the more specific terms of the deed. Morse v. Chase, 305 Mass. 504 , 508 (1940); Lembo v. Waters, 1 Mass. App. Ct. 227 , 232233 (1973). Whether there is an ambiguity in the language of the deed is a question of law to be determined by the court, and may be appropriately decided on summary judgment. Seaco Ins. Co. v. Barbosa, 435 Mass. 772 , 779 (2002). The language of a deed can be ambiguous if "its meaning . . . is uncertain and susceptible of multiple interpretations." Hamouda v. Harris, supra, 66 Mass. App. Ct. at 26.
The dispute between the parties centers on their competing interpretations of language defining the grantees to whom the shore and path easement was granted. The language granting the shore and path easement provides that "the foregoing rights of use may only be exercised by the Grantees, their family, their descendants and their guests[.]" [Note 30] Later in the deed, by way of definition, the deed provides that "the term 'Grantees' as used herein shall be deemed to mean [B. Devereux Barker and Jilda B. Barker] and their heirs, legal representatives and assigns." [Note 31] The Trust argues that the language immediately following the grant is more specific than the broader language in the definition section, and that the general must give way to the specific. However, the two provisions in the deed can and should be read so that they interact harmoniously. The language immediately following the grant, to the effect that the shore and path easement is to be used by the grantees, their family, their descendants and their guests, limits the use of the easement to the personal use of the owners of Lot B. Under this grant, they could not, for instance, allow the use of the shore path by business invitees or otherwise commercialize access to the shore. By further defining the term "grantee" later in the deed, the Trust also provided that this appurtenant right belongs not only to the Barkers but to their heirs and assigns - meaning that even if they sell the property, a subsequent owner would have the benefit of the shore and path easement, although it still would be limited to personal use of the easement, based on the earlier provision immediately following the grant. The more specific language immediately following the grant is not mere surplusage, nor is it inconsistent with the definition of "Grantees" later in the deed; it limits the use of the easement to the personal use of the grantees, their family and guests. The subsequent language provides that this personal and limited grant can be exercised by the immediate grantees as well as by subsequent grantees.
This interpretation, showing harmony between the various provisions in the deed with respect to the meaning of the term "grantees" is confirmed "in the light of the attendant circumstances." Sheftel v. Lebel, supra, 44 Mass. App. Ct. at 179. The purchase and sale agreement executed between the Trust and the Barkers, signed just a month prior to the conveyance, sheds light on what the Trust intended to convey to the Barkers. Paragraph 29 of the agreement, "Additional Provisions," plainly evidences an understanding between the the Trust and the Barkers that certain rights were to run with the land and certain rights granted were to be personal to the Barkers, and that the shore and path easement was to be in the former rather than the latter category. Paragraph 29 of the purchase and sale agreement provides in relevant part:
"The Sellers agree to allow the Buyers and their immediate family members the use of the tennis court and various paths and ways in addition to those described in the Quitclaim Deed attached hereto . . . This right shall be personal to the Buyers and shall terminate if either they or the Sellers transfer their respective property" (emphasis added). [Note 32] The purchase and sale agreement thus distinguishes between the personal nature of the rights granted to use the tennis court and other paths on the property, and the nature of the easement rights granted for use of the private lane used for access to Summer Street and the shore and path easement in the deed, a copy of which was attached to the purchase and sale agreement.
This provision in the purchase and sale agreement is not parol evidence used to give meaning to an ambiguous provision in a deed. Rather, it is evidence of "attendant circumstances" confirming the unambiguous nature of the rights granted in the Barker deed. In any case, even without consideration of the language of the purchase and sale agreement, I reach the conclusion that the shore and path easement was not meant to benefit only the Barkers, but was intended to benefit any of their assigns in the future, based on the language in the deed itself.
CONCLUSION
For the reasons stated above, the plaintiff's motion for summary judgment is ALLOWED with respect to the restrictions imposed on Lot B in the Barker deed, and is also ALLOWED with respect to use of the granted shore and path easement in the same deed. The Trust's motion for summary judgment is DENIED in all respects, and the third-party defendants' motion to dismiss the Trust's trespass claims is ALLOWED.
Judgment will enter accordingly.
TIDEWOOD, LLC v. JOHN APPEL, KATHERINE RIVE, and CURTIS HOLLINGSWORTH, TRUSTEES OF SHELVING ROCK TRUST; JOHN APPEL, KATHERINE RIVE, and CURTIS HOLLINGSWORTH, TRUSTEES OF SHELVING ROCK TRUST v. SCOTT BORGESON and GHISLAINE MAXWELL