EMMANUEL N. PAPANICKOLAS and ROSE PAPANICKOLAS, as Trustees of TELECOM PARK TRUST vs. MICHAEL WEISS and ELAINE WEISS, as Trustees of FARM AVENUE TWO LOTS

INTRODUCTION

This action was commenced by plaintiffs Emmanuel N. Papanickolas and Rose Papanickolas, as Trustees of Telcom Park Trust ("the Trustees"), with the filing of their Complaint For Declaratory Judgment, Injunctive Relief And Damages ("the Complaint") on November 22, 2019 against defendants Michael Weiss and Elaine Weiss, as Trustees of Farm Avenue Two Lots Realty Trust ("the Realty Trust"), and Farm Avenue Two Lots, LLC ("the LLC"). In the Complaint, the Trustees seek a declaratory judgment that an express easement over land owned by the Trustees for the benefit of property owned by the Realty Trust has been extinguished, with the result that the Realty Trust has no right to use it (Count I), damages for the Realty Trust's alleged trespasses (Count II), and an injunction (more properly considered a remedy rather than a claim for relief) (Count III).

On February 3, 2020, the parties filed a Stipulation Of Dismissal Without Prejudice as to Michael Weiss and Elaine Weiss and further stipulated that the LLC is the trustee of the Realty Trust. On February 28, 2020, the LLC filed Defendant Farm Avenue Two Lots, LLC's Mass. R. Civ. P. 12 Motion To Dismiss For Failure To State Claims For Relief And Lack Of Subject Matter Jurisdiction ("the Motion") and supporting pleadings. On May 8, 2020, the Trustees filed Plaintiffs' Opposition To Defendant Farm Avenue Two Lots, LLC's Motion To Dismiss For Failure To State A Claim And Lack Of Subject Matter Jurisdiction. The Realty Trust filed a reply on June 8, 2020. The matter was heard by videoconference on June 18, 2020. For the reasons stated on the record on June 18, 2020 and as set forth below, the Motion is ALLOWED.

THE RELEVANT FACTUAL ALLEGATIONS [Note 1]

The Trustees are the owners of a series of parcels designated as Nos. 069-006, 069-006A and 069-007 on the Assessor's Map of the City of Peabody ("the City") and known as 25 Farm Avenue, Peabody ("the Servient Estate"). Complaint ¶ 2. The Servient Estate presently consists of approximately 31.2 acres. Complaint ¶ 30. The Trustees, or members of the Papanickolas family, have owned the Servient Estate since acquiring title to the same through two deeds, the first in 1958 and the second in 1965. Complaint ¶¶ 24-25.

The Realty Trust is the owner of a parcel designated as No. 069-005A on the Assessor's Map of the City and known as 27R Farm Avenue and 0 Forest Street ("the Dominant Estate"). Complaint ¶ 3. The Realty Trust acquired title to the Dominant Estate on or about February 11, 2014. Complaint ¶ 33. The Dominant Estate consists of approximately 3.058 acres. Complaint ¶ 34. Thereafter, the Realty Trust sought and obtained an Order Of Conditions from the City's Conservation Commission and a Special Permit from the City's City Council relating to its mulch and compost business on the Dominant Estate. Complaint ¶¶ 37-40.

In 1971, the Dominant Estate was part of a much larger parcel designated 133 Forest Street, Peabody, and then owned by the Salem Country Club, Inc. ("the Club"). Complaint ¶¶ 4-5. In June 1971, by Order Of Taking by the Commonwealth of Massachusetts recorded at the Essex South Registry of Deeds ("the Registry") at Book 5777, Page 332, the following easement ("the Easement") was created:

An easement is hereby taken in the parcel of land hereinafter described as Parcel 8-R-1. Said easement is hereby taken under the provisions of Chapter 448 of the acts of 1948 in [sic] behalf of owners of land whose rights of access thereto and egress therefrom would otherwise become inoperative due to the limited access provisions of the State highway layout hereinbefore described. Said easement consists of the right to enter upon said land at any time to construct thereon and to use and maintain a roadway and necessary utilities.

Parcel 8-R-1 A strip of land 60 feet in width located about 670 feet southwesterly of station 123 of the main baseline hereinbefore described, supposed to be owned by Nicholas Papanickolas, the aforesaid rights therein being taken on behalf of the Salem Country Club, Inc. Said parcel adjoins the dividing line between land now or formerly of said Corporation and land now or formerly of said Papanickolas for a distance of 90 feet and extends westerly to northwesterly a total of 452 feet, in part adjoining the dividing line between said land of Papanickolas and land now or formerly of Cleopatra Manos, to the dividing line between said land of Papanickolas and other land now or formerly of the Salem Country Club, Inc., containing about 0.62 acres.

Complaint, Ex. A, p.14. The Order Of Taking further lists Nicholas Papanickolas as the owner of parcel 8-R-1 to whom an award of damages was made because of the taking of his property. Id. at p. 22. The Complaint makes the following allegations regarding the Easement:

¶ 6 - ". . . the Easement was never laid out to be used for passage and was never in fact used by the [Club] for passage or access to its property or for any other purpose;"

¶ 7 - ". . . the Easement was not in a condition that made it usable as a point of access to the [Dominant Estate]. Instead, it was under water for nearly all of the year and was covered with large trees and other vegetation which rendered it unusable as a means of access or for any other purpose;"

¶ 8 - "The [Club] had no reason to use the Easement during its ownership of [the Dominant Estate];

¶ 9 - "The [Club] and/or subsequent owners of the [Dominant Estate] abandoned the Easement and it ceased to have any legal force or effect many years before the [Dominant Estate] was purchased by [the Realty Trust];"

¶ 46 - "At the time that the Easement for the benefit of the [Club] was created, there was no necessity for the Easement as the [Club's] property and the entrance thereto were [sic] located on a public way at 133 Forest Street in Peabody, Massachusetts;"

¶ 47 - "At the time that the Easement was created, the [Club] did not use the portion of its property for which access was provided by the creation of the Easement for any business or other purpose as it was covered by trees, vegetation and wetlands;"

¶ 48 - "At the time the Easement was created, and for more than forty five years thereafter, the Easement was under water, covered with thick vegetation including large trees, and could not be used for passage between the property owned by [the Servient Estate] and the property owned by the [Club], which included the [Dominant Estate];"

¶ 50 - "During the more than twenty-three (23) years between the creation of the Easement and the transfer of the [Dominant Estate] on October 20, 1994, the [Club] manifested its intention to abandon the Easement, upon information and belief, in at least the following ways:

a) Never using the Easement;

b) Never passing or re-passing over the Easement;

c) Never laying out a road in the Easement;

d) Never clearing the Easement;

e) Never draining the Easement;

f) Never removing the large trees and other vegetation which made the Easement impassable and incapable of being used for access;

g) Never maintaining the Easement;

h) Continuing to use the entrance to its property located at 133 Forest Street, Peabody, Massachusetts as the sole and exclusive means of accessing its property;

i) Other acts and failures to act reflecting an intention to abandon the Easement."

Title to the Dominant Estate transferred from the Club to Peabody Monofill Associates, Inc. by deed dated October 20, 1994 and recorded in the Registry at Book 12791, Page 449. Complaint ¶ 53. Title to the Dominant Estate was then transferred to Peabody Real Estate Holding Corp. by deed dated December 20, 1994 and recorded in the Registry at Book 12877, Page 399. Complaint ¶ 55.

Although the Trustees contend that the Easement was abandoned prior to the conveyances to Peabody Monofill Associates, Inc. and Peabody Real Estate Holding Corp., as an alternative, the Trustees allege that the Easement was abandoned by those entities

based upon the fact that they never accessed the [Dominant Estate] by means of the Easement; never laid out a road on the Easement; never drained the Easement; never cleared the trees and other vegetation that made the Easement impassable and unable to be used as a means of access to the [Dominant Estate]; never used the Easement and otherwise expressed their intention to abandon the Easement.

Complaint ¶ 58. Finally, the Trustees allege that the Realty Trust cleared vegetation, Complaint ¶ 69, constructed a road on the Easement in or about 2018, Complaint ¶ 62, and drained water off of the Dominant Estate onto the Servient Estate. Complaint ¶ 65.

DISCUSSION

The Standard Applicable To This Rule 12 Motion

In Count I of their Complaint, the Trustees seek a declaration that, by the time the Realty Trust acquired the Dominant Estate, "the Easement had been abandoned and was of no legal force and effect," Complaint ¶ 75, and that "the Easement had been extinguished." Complaint ¶ 76. The Realty Trust seeks to dismiss that count of the Complaint pursuant to Mass. R. Civ. P. 12(b)(6) and 12(c). The relationship between those two rules was described by the Supreme Judicial Court in Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002) (brackets in original):

A defendant's rule 12 (c) motion is "actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted." J.W. Smith & H.B. Zobel, Rules Practice §12.16 (1974). In deciding a rule 12 (c) motion, all facts pleaded by the nonmoving party must be accepted as true. Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904 , 905, 467 N.E.2d 874 (1984). Because a motion under rule 12 (c) is akin to a motion under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and because we have stated that "it seems reasonable to take judicial notice of facts when considering a motion to dismiss under Mass. R. Civ. P. 12 (b) (6)," Jackson v. Longcope, 394 Mass. 577 , 580 n.2, 476 N.E.2d 617 (1985), we see no reason that a judge may not also consider on a rule 12 (c) motion those facts of which judicial notice can be taken.

Since the decision in Jarosz, the Supreme Judicial Court has altered the standard for assessing complaints under Rule 12(b)(6). Rather than the "no set of facts" standard that prevailed previously, [Note 2] "[w]hat is required at the pleading stage are factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief, in order to 'reflect[] the threshold requirement of [Fed. R. Civ. P.] 8(a)(2) that the "plain statement" possess enough heft to "sho[w] that the pleader is entitled to relief.'" Id. at 1966." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (brackets in original), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). That standard has also been adopted with respect to motions brought pursuant to Mass. R. Civ. P. 12(c). See UBS Financial Services, Inc. v. Aliberti, 483 Mass. 396 , 405 (2019).

The Trustees' Claim Of Abandonment

The Trustees claim variously that the Easement was abandoned and that it was extinguished. Abandonment is simply one form of extinguishment. See Restatement of Property (Servitudes) Third, §7.3 (2000) (extinguishment by release), §7.6 (extinguishment by estoppel), §7.7 (extinguishment by prescription), §7.8 (extinguishment by condemnation). Extinguishment by abandonment was the subject, in part, of this court's decision in Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211 (2019) (Roberts, J.). As discussed therein, the Supreme Judicial Court in Cater v. Bednarek, 462 Mass. 523 , 528 n. 15 (2012), cited approvingly to §7.4 of the Restatement, entitled "Modification or Extinguishment by Abandonment." That section states: "A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the right created by a servitude." Restatement of Property (Servitudes) Third, §7.4 (2000). As stated by the Cater court, "[a]bandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." 462 Mass. at 528 n. 15. The necessary showing has also been described as proof of "'acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence. Willets v. Langhaar, 212 Mass. 573 , 575 [1912].'" First Nat'l Bank v. Konner, 373 Mass. 463 , 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927).

The issue is one of intent. See Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958) ("[W]hether there is an abandonment is a question of intention."); Delconte v. Salloum, 336 Mass. 184 , 188 (1957), quoting Les v. Alibozek, 269 Mass. 153 , 158-159 (1929) ("'Whether there is an abandonment is ordinarily a question of intention.'"). And that intent is to be "ascertained from the surrounding circumstances and the conduct of the parties." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). See Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965) (abandonment "can be shown by acts indicating an intention never again to make use of the easement in question"). "Any deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment." Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n. 2 (2004).

Multiple cases stand for the proposition that nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate. See, e.g., Cater, 462 Mass. at 710 n. 15, quoting Desotell, 338 Mass. at 159 ("[N]onuse of itself, no matter how long continued, will not work an abandonment."); Sindler, 348 Mass. at 593, quoting Desotell, 338 Mass. at 159 ("[A]bandonment of an easement could not be shown merely from nonuse by the dominant owner for many years 'coupled with their failure to clear the right of way of its natural cover of trees and brush'. . . ."); Delconte, 336 Mass. at 188 ("Nonuse does not of itself produce an abandonment no matter how long continued."); 107 Manor Ave. LLC, 74 Mass. App. Ct. at 158 ("Nonuse, by itself, however long continued, will not operate to extinguish an easement."). "However, an extended period of nonuse is a factor to consider in determining whether an easement has been abandoned." Casey v. LaCourt Family LLC, 2016 Mass. App. Unpub. LEXIS 852 at *9.

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

The owner of the servient estate carries a heavy burden of proof to establish abandonment; however, "that rigorous standard is not insurmountable." Proulx, 60 Mass. App. Ct. at 704 n. 2, and cases cited. In Casey, supra, the Appeals Court upheld the lower court's summary judgment concluding that the dominant owner's predecessor had abandoned its rights. On a de novo review of the entire record, the Appeals Court considered (1) that the dominant owner's predecessor, the Roman Catholic Archdiocese of Boston, had first installed a wrought iron fence with no breaks in it, separating its property from the easement, and (2) that it subsequently replaced that fence with a taller fence with barbed wire, further indicating that its property not be accessed from the easement. 2016 Mass. App. Unpub. LEXIS at *2-4. In addition, the court noted "the prolonged and complete nonuse of the way by the Archdiocese, and acquiescence to the neighbors' use of the way, in a manner that impeded that Archdiocese's access to the way, for more than forty years." Id. at *10-11. According to the court:

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

Id. at *13.

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

When judged against that law, the allegations of the Complaint here do not "plausibly suggest an entitlement to relief," Iannacchino, 451 Mass. at 636, in the form of a declaration that the Easement has been abandoned. In the end, every allegation in the Complaint supporting the Trustees' claim of abandonment is one form or another of nonuse: not using; not passing and repassing; never laying out a road; never clearing; never draining; never removing vegetation to render the Easement passable. Complaint ¶ 50. Allegations of acts by the Realty Trust's predecessors in title showing an intent to abandon, like those relied upon in Casey and Lasell College, are wholly lacking. There are no allegations that the Club or its successors blocked the Easement by installing a fence at the property line. There are no allegations that the Realty Trust's predecessors created another access to the Dominant Estate, as in Lasell College and Giannelli Mgmt. There are no allegations that the Club or its successors failed to protest acts inconsistent with the easement or, indeed, that the Trustees or any other party engaged in acts inconsistent with the Easement. The Easement is not obsolete. Compare 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."). As a result, Count I will be dismissed for failure to state a claim upon which relief could be granted.

Lack Of Subject Matter Jurisdiction

In Count II of the Complaint, the Trustees contend that the Realty Trust's actions on the Trustees' land constitute a trespass. The court having concluded that the Complaint fails to state a claim that the Easement has been abandoned, the trespass claim fails to the extent that it is based on the Realty Trust's construction and use of a road over the Easement. The Trustees also claim, however, that the Realty Trust wrongfully diverted water onto the Servient Estate during various periods in 2017, Complaint ¶ 65, causing injury to the Servient Estate. As the Realty Trust argues, this court only has jurisdiction over tort-based claims, such as a claim of trespass, when the claim is "ancillary to claims related to right, title, or interest in land." Owens v. Buccheri, 2016 Mass. App. Unpub. LEXIS 359 at *2, quoting Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 302 (2008) ("Although the Land Court has jurisdiction to award damages on a tort-based theory, it may only do so where the claim is 'ancillary to claims related to any right, title, or interest in land.'"). In view of its conclusion that Count I of the Complaint must be dismissed for failure to state a claim upon which relief could be granted, this court does not have jurisdiction over the Trustees' trespass claim.

CONCLUSION

For the foregoing reasons, the Motion is ALLOWED. Judgment will enter dismissing Count I with prejudice pursuant to Mass. R. Civ. P. 12(b)(6) and 12(c) for failure to state a claim upon which relief could be granted and dismissing Count II without prejudice pursuant to Mass. R. Civ. P. 12(b)(1) because this court is without jurisdiction to adjudicate it.

SO ORDERED.