XAVIER, LLC as Trustee, Plaintiff v. STEPHEN D. CLAPP, Defendant

INTRODUCTION

Plaintiff Xavier, LLC, as Trustee of 30-36 North Washington Street Realty Trust ("the LLC"), commenced this action on July 22, 2019 against defendant Stephen D. Clapp ("Mr. Clapp"), the owner of 12 Church Street, North Attleborough, Massachusetts ("the Dominant Estate"), to obtain an adjudication of Mr. Clapp's right to park within the confines of a 10 foot wide easement ("the Easement Area") on property located at 16-28 North Washington Street, North Attleborough, Massachusetts ("the Servient Estate") and owned by the LLC. Mr. Clapp filed an answer and counterclaim on August 16, 2019 in which he sought an adjudication of his right to park within the Easement Area. In Plaintiff's Motion For Summary Judgment, filed on July 8, 2020, the LLC seeks a declaration that Mr. Clapp has no rights in the Easement Area. In Mr. Clapp's opposition to that motion and cross-motion for summary judgment, filed on August 5, 2020, Mr. Clapp seeks a declaration that the express easement benefitting the Dominant Estate remains in full force and effect and that the rights granted by that express easement have been expanded by prescription to include parking and a turnaround. For the reasons set forth below, this court holds that the Dominant Estate has the benefit of an easement that includes the right to park within the Easement Area and to use the adjacent parking area as a turnaround.

UNDISPUTED FACTS

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

The Properties And The Parties

1. The Servient Estate, now owned by the LLC, has been in the Cannata family since 1982. Affidavit Of Lisa Cannata, Member Of Xavier, LLC, sworn to on June 30, 2020. Appendix To Motion For Summary Judgment ("App.") Ex. J.

2. The Dominant Estate, owned by Mr. Clapp since 2006, Plaintiff's Statement Of Material Facts ("PSOMF") ¶ 2 and App. Ex. B, was first acquired by Mr. Clapp with his law partners, John Pollis and Michael Duggan, in 1980. App. Ex. F at 7.

3. The Easement Area is located immediately adjacent to the rear of the building on the Dominant Estate ("the Chronicle Building"), which building appears to take up the entirety of the lot on which it is located. App. Ex. E, Defendant's Continued Appendix ("D. App.") Ex. V.

The History Of The Creation And Use Of The Easement Area

4. The easement at issue was created in a deed of the Dominant Estate dated April 17, 1906 from Joseph W. Lewis to Harry D. Hunt ("Mr. Hunt") and recorded in the Bristol County Registry of Deeds ("the Registry") at Book 609, Page 80 ("the 1906 Deed" and "the Easement" respectively). PSOMF ¶ 4, App. Ex. D.

5. In pertinent part, the 1906 Deed states: "Grantor hereby intending to convey to the Grantee a right of way in the said twenty (20) foot passage way created in deed to David Capron, et al, and also between the easterly boundary of the lot herein described and said passageway and in a strip ten (10) feet wide adjoining said easterly boundary beginning at a point sixty-five (65) feet southerly from said Church Street and running to the southerly boundary of the lot herein described." App. Ex. D.

6. The 1906 Deed was of a vacant lot, referenced the pre-existing twenty foot right of way and created the 10 foot right of way. Defendant's Response To Plaintiff's Statement Of Facts And Statement Of Additional Facts ("DAF") ¶ 35.

7. As of 1906, a local newspaper known as the North Attleborough Evening Chronicle ("the Evening Chronicle") was published out of the Evening Chronicle Building located on Elm Street, North Attleborough. DAF ¶ 37, App. Ex. H.

8. After Mr. Hunt acquired the Dominant Estate, he constructed the Chronicle Building, which subsequently housed the Evening Chronicle. DAF ¶¶ 35-37, App. Ex. H.

9. The record reflects that a panel truck and other vehicles driven by newspaper employees parked in the Easement Area on a daily basis from at least 1961 until 1975. DAF ¶¶ 30- 32.

10. The printing of newspapers in the Chronicle Building ended when the Evening Chronicle merged with The Attleboro Sun in 1971, forming The Sun Chronicle, and the Chronicle Building ceased operating as a newspaper office in 1975 when the Chronicle Building was sold to Tri L Realty Trust. DAF ¶ 32.

11. In July 1970, Mr. Clapp became employed with the law firm of Armstrong and Pollis, which had its offices on the second floor of the Attleborough Savings Bank on the corner of North Washington Street and Church Street overlooking the Chronicle Building. DAF ¶ 29.

12. Mr. Clapp observed that the newspaper's panel truck routinely parked in the Easement Area. DAF ¶ 30.

13. In July 1975, Mr. Clapp was involved in the sale of the Chronicle Building to Tri L Realty Trust, as a result of which he learned of the existence of the Easement where the newspaper employees parked. DAF ¶33.

14. Between 1975 and 1980, Mr. Clapp observed various tenants of the Chronicle Building regularly parking automobiles and trucks within the Easement Area. DAF ¶ 34.

15. In 1980, Mr. Clapp and his then law partners purchased the Chronicle Building. DAF ¶38.

16. Between 1980 and 1985, the Chronicle Building was used by Mr. Clapp and his partners for storing files and furniture, and then was renovated to house their law firm. DAF ¶¶ 39-40.

17. During that period, Mr. Clapp regularly parked in the Easement Area, as did various individuals performing work on the renovation of the Chronicle Building. Id.

18. In May 1985, Mr. Clapp's law firm moved into the Chronicle Building. DAF ¶ 41.

19. Since that time, Mr. Clapp has parked his automobile in the Easement Area almost every weekday and often on weekends. DAF ¶ 42.

20. In order to park in the Easement Area, one must drive from Church Street over the twenty foot right of way to the Easement Area and, upon leaving, one must turn around on the LLC's adjacent parking lot and return to Church Street over the twenty foot right of way. DAF ¶ 43.

21. When other people have parked within the Easement Area, Mr. Clapp or a member of his staff have placed notes on their automobiles informing them that they are blocking the easement and must park elsewhere. DAF ¶ 44.

22. On or about January 20, 2004, Mr. Clapp received a faxed communication from a lawyer representing Iris Cannata, in which the lawyer inquired about notes left on Ms. Cannata's tenants' cars when parking in the Easement Area, stating that the area was reserved for Mr. Clapp's use, and requesting that Mr. Clapp provide documentation of his claimed right. D. App. Ex. S.

23. Mr. Clapp responded the following day, by letter dated January 21, 2004, informing Ms. Cannata's lawyer that he had parked in the Easement Area almost every day for more than 20 years and providing him a copy of the 1906 Deed, a copy of a sketch plan showing the Easement Area, and a sample of the note placed on automobiles parked in the Easement Area without his permission: "This parking space is an easement which is owned by the Chronicle Building owners. Please park in any other spaces in this parking lot. The Chronicle Building By: / Stephen D. Clapp." D. App. Ex. T.

24. By Public Notice In Accordance With Mass. G. L. c. 187, Sec. 3 ("the Notice"), the LLC's predecessor, Francis X. Cannata ("Mr. Cannata"), as Trustee of Anawan Building Trust, gave notice to Robert S. Smullen ("Mr. Smullen") that Mr. Cannata intended to prevent the acquisition of any right of way or other easement over the Servient Estate. App. Ex. G.

25. According to the Notice, it was executed by Mr. Cannata on December 10, 1982, served on Mr. Smullen on that date, and posted in accordance with the statute on that date. Id.

26. The Notice was recorded with the Registry at Book 2257, Page 16 on December 14, 1982 at 11:29 a.m. Id.

SUMMARY JUDGMENT STANDARD

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where both parties have moved for summary judgment, the evidence is viewed "in the light most favorable to the party against whom judgment is to enter." Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216 , 218 (2018), quoting Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 n.4 (2010). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

DISCUSSION

In asserting that Mr. Clapp has no rights in the Easement Area, the LLC makes four arguments: (1) that Mr. Clapp "abandoned the Easement because the original purpose of the Easement no longer exists," Plaintiff's Memorandum In Support Of Its Motion For Summary Judgment ("Plaintiff's Memorandum") at 1, or abandoned the easement because it is not necessary to Mr. Clapp's use of the Dominant Estate, Plaintiff's Memorandum at 5; (2) that Mr. Clapp is estopped from making a claim for an easement by prescription, Plaintiff's Memorandum at 2; (3) that Mr. Clapp cannot establish the elements necessary to establish an easement by prescription, id.; and (4) that the recording of the Notice precludes Mr. Clapp from acquiring a prescriptive easement. Id. For the reasons set forth below, none of these arguments withstands scrutiny.

The Easement Has Not Been Extinguished By Abandonment

There is no dispute that the 1906 Deed created an express easement: "the Grantor hereby intending to convey to the Grantee a right of way ... in a strip ten (10) feet wide adjoining said easterly boundary beginning at a point sixty-five (65) feet southerly from said Church Street and running to the southerly boundary of the lot herein described." App. Ex. D. Such a general grant of a right of way "not limited in its scope by the terms of the grant, ... is available for the reasonable uses to which the dominant estate may be devoted." Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004), quoting Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 273 (1913) (rejecting the defendant's contention that the way was confined to farming uses, the original purpose for which the easement was intended).

The LLC argues, however, that the Easement has been abandoned because the alleged purpose for which it was created - to gain access to the side of the building on the Dominant Estate when that building housed a newspaper operation - no longer exists. Plaintiff's Memorandum at 6. While the extinguishment of an easement by obsolescence is recognized in the law, see Makepeace Bros., Inc. v. Barnstable, 292 Mass. 518 , 525 (1935) ("Warranted by the evidence the Land Court found that the rights reserved or created by the votes and set-off related only to the whale fishing industry, and ruled that such rights were extinguished upon the disappearance of the whale fishing industry from the vicinity."), the facts do not support such a result here: the language of the Easement was not limited to the use of the Dominant Estate as the site of a newspaper operation; and, at the time of the grant in 1906, the Dominant Estate was not the site of a newspaper operation and instead consisted of vacant land.

The LLC's argument that Mr. Clapp has abandoned the Easement because he does not need it fares no better: necessity is not a factor in determining whether an easement has been extinguished by abandonment. In Cater v. Bednarek, 462 Mass. 523 , 528 n. 15 (2012), the Supreme Judicial Court cited approvingly to § 7.4 of the Restatement (Third) of Property (Servitudes) (2000) ("Restatement"), entitled "Modification or Extinguishment by Abandonment." That section states: "A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the right created by a servitude." Restatement § 7.4. As stated by the Cater court, "[a]bandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." 462 Mass. at 528 n. 15. The necessary showing has also been described as proof of "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." First Nat'l Bank v. Konner, 373 Mass. 463 , 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927). There is no such proof in the record here. Instead, the record establishes that Mr. Clapp has continued to use the Easement for decades, up until the present day. The owner of the servient estate carries a heavy burden of proof to establish abandonment. Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n. 2 (2004). That burden has not been met here.

The Easement Has Not Been Extinguished By Estoppel

The LLC next asserts that "[d]efendant cannot prove that his rights to the Easement have transformed into an easement by prescription; therefore he is estopped from claiming adverse possession." Plaintiff's Memorandum at 6. The LLC appropriately cites to § 7.6 of the Restatement, which was quoted approvingly by the Supreme Judicial Court in Cater, 462 Mass. at 531, for a statement of the doctrine:

A servitude is modified or terminated when the person holding the benefit of the servitude communicates to the party burdened by the servitude, by conduct, words, or silence, an intention to modify or terminate the servitude, under circumstances in which it is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication.

The Cater court adopted the policy rationale set forth in comment a. to § 7.6:

Estoppel is based on the policies of preventing the injustice and unjust enrichment that would result if servitude beneficiaries were able to mislead a burdened party into believing that the servitude will be modified or terminated and then to obtain an injunction or judgment for damages when the burdened party violates the servitude.

Id. at 531-532. It also adopted the caution set forth therein: "Although the balance is struck in favor of preventing injustice, courts should be cautious in applying estoppel, particularly where the servitude in question is of substantial value to the dominant estate." Id. at 532.

The facts in the record do not support the application of the doctrine of extinguishment by estoppel here. There is no evidence of conduct by Mr. Clapp indicating an intent to modify or terminate the easement; his conduct has been quite to the contrary. There is no evidence that the LLC or its predecessors substantially or detrimentally changed their position, even were Mr. Clapp to have been found to indicate an intent to terminate the Easement. Finally, whether Mr. Clapp is able to prove an extension by prescription of his expressly granted easement rights is irrelevant to whether the Easement has been extinguished by estoppel.

Mr. Clapp Has The Benefit Of An Easement By Prescription Unimpaired By The Notice

The parties agree that, to succeed in his counterclaim for a prescriptive easement, Mr. Clapp must establish on the undisputed facts that he used the Easement Area not only for passage, but for parking, and that he used the adjacent area as a turnaround openly, notoriously, adversely and uninterruptedly for twenty years. See Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1947). He has done so. As counsel for the LLC conceded at the hearing on these motions, the LLC found no evidence during discovery to contradict Mr. Clapp's testimony to the effect that Mr. Clapp or others affiliated with Mr. Clapp have parked in the Easement Area on a near-daily basis since 1985. The area in question is in downtown North Attleborough in an open parking area, not hidden away. Mr. Clapp and his agents controlled the Easement Area by leaving notes on automobiles for owners that did not have his permission to park there. Mr. Clapp told counsel for the LLC's predecessor in title the basis for his claimed rights in 2004: the 1906 Deed and, at that time, more than 20 years of use of the Easement Area for parking.

The LLC argues, though, that Mr. Clapp's use of the Easement Area to park his car was not exclusive to Mr. Clapp and that the Notice given pursuant to G. L. c. 187, §3, operated to prevent Mr. Clapp from acquiring a prescriptive easement. However, exclusivity is not a requirement in establishing a prescriptive easement. Labounty v. Vickers, 352 Mass. 337 , 349 (1967) ("It is not necessary...for one claiming an easement by prescription to show that his use has been 'exclusive'..."). And the Notice did not serve to interrupt the twenty-year running of Mr. Clapp's prescriptive easement claim because (1) the Notice was not addressed to Mr. Clapp or his predecessor in title of the Dominant Estate, but to Mr. Smullen, the LLC's predecessor in title, and (2) the Notice, to the extent that it was intended as a public notice, rather than as notice only to Mr. Smullen, was not posted for the requisite six successive days required by the statute.

In addition, even if the Notice did serve to prevent Mr. Clapp from acquiring a prescriptive easement once it was posted in 1982, Mr. Clapp argues, and the undisputed evidence fully supports, the conclusion that a prescriptive easement benefitting the Dominant Estate had already been acquired by then. A panel truck and other vehicles driven by employees of The Evening Chronicle and The Sun Chronicle parked in the Easement Area on a daily basis from at least 1961 until 1975. After The Sun Chronicle departed and the Chronicle Building was sold in 1975, Mr. Clapp observed tenants of the Chronicle Building parking in the Easement Area. In 1980, when Mr. Clapp and his law partners acquired the Chronicle Building, Mr. Clapp continued the practice of parking within the Easement Area. Accordingly, by the time that the Notice was posted in 1982, to the extent that it was directed to the owners of the Dominant Estate, it came too late.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, Plaintiff's Motion For Summary Judgment is DENIED and Mr. Clapp's Cross-Motion For Summary Judgment is ALLOWED. Judgment will issue on Count I of the Verified Complaint and on the counterclaim declaring that that the easement rights granted in the 1906 Deed remain in full force and effect and that Mr. Clapp, as the owner of the Dominant Estate, has acquired the further right to park within the Easement Area and to turnaround on the adjacent area of the Servient Estate. Counts II and III of the Verified Complaint, asserting claims for trespass and for injunctive relief, will be dismissed with prejudice. A plan in recordable form is to be submitted for approval by the court reflecting the Easement Area and the turnaround area by January 8, 2021.