JEFFREY W. SCHWARZ, TRUSTEE UNDER THE WILL OF HAZEL F. SCHWARZ, and 83 HARBORVIEW, LLC vs. VICTORIA PEARMAN, KATHRYN A. TATE, MEREDITH B. GALLO and BETH B. O’CONNOR, as TRUSTEES OF THE HA BROOKER TRUST, DAVID NATHANS, MIMI TECHENTIN, and WARREN TECHENTIN

Plaintiffs Jeffrey W. Schwarz, Trustee under the will of Hazel F. Schwarz (“Schwarz”) and 83 Harborview, LLC (“Harborview”) filed their Verified Complaint on September 20, 2011, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to the ownership and use of a parcel of land in Vineyard Haven, Massachusetts known as Horton Lane (the “ROW”) [Note 1] leading to a forty foot cliff over Vineyard Haven Harbor (the “Harbor”), and alleging trespass by Defendants on a portion of the ROW. [Note 2] Plaintiffs also sought a preliminary injunction restraining Defendants from entering a portion of the ROW. A hearing was held on the Motion for Preliminary Injunction on September 29, 2011, which none of Defendants attended, and on October 4, 2011, this court allowed Plaintiffs’ Motion for Preliminary Injunction, restraining Defendants from any cutting, clearing, construction activity or testing on the ROW, which they had been allowed to do pursuant to the Superseding Order. Defendant Katherine A. Tate (“Tate”) filed her Answer on October 14, 2011. [Note 3] A case management conference was held on November 15, 2011.

Plaintiffs filed their Motion for Summary Judgment on January 19, 2012, together with supporting memorandum. Tate filed her Opposition and Cross-Motion on February 17, 2012, together with supporting memorandum. [Note 4] On September 10, 2012, Plaintiffs filed their Opposition and Reply. A hearing on all motions was held on December 5, 2012, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Pursuant to a deed from Martha’s Vineyard National Bank, Trustee, dated December 8, 1994, and recorded with the Dukes County Registry of Deeds (the “Registry”) at Book 645, Page 683, Schwarz owns property containing 0.64 acres fronting on the ROW, shown as Parcel 8.2 (“Parcel 8.2”) on Tisbury Assessors Map 4 (“Map 4”). Parcel 8.2 fronts on the Harbor.

2. Pursuant to a deed from Jeffrey W. Schwarz and Nancy S. MacMullen dated February 11, 2005, and recorded with the Registry at Book 1034, Page 511, Harborview owns property containing 1.38 acres fronting on the ROW, shown as Lot 4 on Map 4 (“Lot 4,” and together with Parcel 8.2, “Plaintiff Property”) . Lot 4 fronts on the Harbor. [Note 5]

3. Defendants own property fronting on the southerly side of the ROW, shown as Parcels 1-6 on Map 4 (“Defendant Property”). [Note 6] Defendant Victoria Pearman purchased Parcel 1 on Map 4 by deed dated December 10, 1998, and recorded with the Registry at Book 749, Page 688. Tate purchased Parcels 4 and 5 on Map 4 by deed dated May 6, 1997, and recorded with the Registry at Book 701, Page 887. Defendant Meredith B. Gallo and Beth B. O’Connor, as Trustees of the HA Brooker Trust (“Brooker”) purchased Parcel 6 on Map 4 by deed dated October 9, 2009, and recorded with the Registry at Book 1198, Page 98. [Note 7] David Nathans (“Nathans”) purchased Parcel 3 on Map 4 by deed dated November 19, 2010, and recorded with the Registry at Book 1228, Page 898. Mimi Techentin and Warren Techentin (the “Techentins”) purchased Parcel 2 on Map 4 by deed dated December 28, 2009, and recorded with the Registry at Book 1203, Page 446.

4. By deed dated March 26, 1870, Chloe Horton (“Chloe”) purchased a large parcel of land containing both Plaintiff Property, Defendant Property, and the ROW. By deed dated July 6, 1872, and recorded with the Registry at Book 51, Page 554 (the “1872 Deed”), Chloe deeded Parcel 8.2 to Daniel Stevens (“Stevens”). Such deed stated that Parcel 8.2 was bounded “northerly by an avenue thirty feet wide [the ROW], to be kept open and public forever from the County Road to the Harbor.” [Note 8] [Note 9]

5. By two deeds dated October 15, 1881 (the “1881 Deed”), and February 21, 1882 (the “1882 Deed”), and recorded with the Registry at Book 69, Page 356 and Page 354, respectively, Chloe conveyed Lot 4 (the 1881 Deed) and Defendant Property (the 1882 Deed) to George Soren (“George”). Both deeds referenced as one of the boundary lines the “northerly line of Atlantic Avenue.” [Note 10] [Note 11] The 1882 Deed included the fee to all of Horton Lane, [Note 12] while the 1881 Deed did not include any of the fee to Horton Lane. Neither deed specified rights in the ROW. As a result, the fee to the entire portion of the ROW had been deeded out as of 1882.

6. On March 29, 1906, George executed a second codicil (the “Second Codicil”) to his will which became effective at his death in 1911, which devised Lot 4 (and property north of Lot 4) to the YWCA, and described the property as “lying north of the middle line of Horton Lane.”

7. By deed dated February 19, 1907, and recorded with the Registry at Book 117, Page 532 (the “1907 Deed”), George conveyed several parcels of land including Defendant Property, to his sister Grace Soren (“Grace”). This deed included the language, “together with all my right, title and interest in said road or Norton [sic] Lane as appurtenant to said parcel.” The 1907 Deed also stated that, with respect to Defendant Property, it was a conveyance of “part of the land conveyed to [George] by Chloe” by the 1882 Deed. [Note 13]

8. By deeds dated February 1, 1916, and recorded with the Registry at Book 169, Page 161 and 164, the heirs of Grace conveyed Defendant Property to Maurice V. Blomerth (“Blomerth”). The deed included the language “all my right, title and interest in Horton Lane as appurtenant to said parcel.”

9. Blomerth prepared a subdivision plan (the “Blomerth Subdivision”) of all land owned by him, including Defendant Property, titled “Plan of Maurice V. Blomerth Subdivision Vineyard Haven, Mass” dated January 1926 and August 11, 1926, revised June 17, 1927, and prepared by William S. Swift & Son (the “1926 Plan”). This plan was later revised on October 7, 1937.

10. By Quitclaim Deed Release dated August 31, 1967, and recorded with the Registry at Book 274, Page 563 (the “1967 Deed”), several of the owners of lots in the Blomerth Subdivision released to Maurice V. Blomerth, Trustee of the Reconstruction Realty Trust (the “Trust”), rights to use the Private Way [Note 14] as access to the Harbor, and the Trust granted such parties permission to walk at their own risk through Oak Tree Way, as shown on [the 1926 Plan] to Horton Lane, and along same to the water of Vineyard Haven Harbor, and use the beach front from the hours of seven a.m. to nine p.m. daily. No camps, tents, leantos, or the erection of anything whatsoever shall be allowed. However, a pair of stairs to go up and down the embankment will be allowed to be built and maintained by all lot owners given permission to use said Oak Tree Way and Horton Lane to walk to and from beach as shown on [the 1926 Plan] and used by them entirely at their own risk.

11. On March 12, 2010, Pearman, the predecessors to Nathans, Tate and Brooker filed a Notice of Intent with the Tisbury Conservation Commission seeking authorization to “construct wooden stairs on the bluff for beach access at the end of Horton Lane” (the “Project”). By Order of Conditions dated August 25, 2010, the Massachusetts Department of Environmental Protection (the “DEP”) issued an Order of Conditions which “allows the construction of a set of timber stairs on a coastal bank; the placement of a boardwalk from the end of the stairs through the vegetation terminating at the beach; and post construction stabilization of the bank if necessary.”

12. On September 8, 2010, Plaintiffs filed a request for a Superseding Order of Conditions with the DEP, claiming that the applicants have no fee interest in the ROW. On September 21, 2011, the DEP issued a Superseding Order of Conditions (the “Superceding Order”) approving the Project.

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Plaintiffs argue that they own the fee to the portion of the ROW where the Project is proposed. Plaintiffs also claim that the ROW does not include the bluff and access to the Harbor. Tate claims that she either owns the fee in the northern portion of the ROW or has easement rights to use the entire ROW, and as a result she has a right to construct the Project. Tate also claims that the ROW includes access over the bluff to the Harbor. I shall examine each of these issues in turn.

Fee interest in the ROW.

Tate argues that she has a fee interest in the northerly portion of the ROW pursuant to the Derelict Fee Statute. G.L. c. 183 § 58 (the Derelict Fee Statute) states:

Every instrument passing title to real estate abutting a way, whether public or private... shall be construed to include any fee interest of the grantor in such way..., unless (a) the grantor retains other real estate abutting such way..., in which case,... (ii) if the retained real estate is on the other side of such way..., the title conveyed shall be to the center line of such way... as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a sideline.

Before the 1872 Deed, Chloe owned Plaintiff Property, Defendant Property, and the entire ROW. The 1872 Deed described Parcel 8.2 as “bounded northerly by an avenue 30 feet wide to be kept open and public forever.” As a result, Chloe created the ROW and, according to the Derelict Fee Statute, deeded Stevens the one-half interest in the portion of the ROW adjacent to Parcel 8.2 (Chloe still owned Lot 4 on the other side of the ROW) . Chloe deeded out the remaining fee interest in all lots abutting the ROW and the remaining fee interest in the ROW to George with the 1881 Deed and the 1882 Deed. These conveyances did not include Parcel 8.2 and the southerly one-half of the ROW adjacent to Parcel 8.2 which was deeded out in the 1872 Deed. In the 1907 Deed, George conveyed Parcels 1-6 (Defendant Property) to Grace. The 1907 Deed included the language “together with all my right, title and interest in said road or Norton [sic] Lane as appurtenant to said parcel.” Tate argues that this language conveyed the entirety of George’s fee interest in the ROW to Grace, and therefore, that Defendant Property owns the fee interest to the northerly half of the ROW (adjacent to Lot 4) and the southerly half of the ROW (adjacent to Defendant Property, excluding that southerly portion of the ROW adjacent to Parcel 8.2).

Plaintiffs argue that Tate’s construction of the 1907 Deed is not valid for several reasons. First, they contend that a grammatical interpretation of the relevant language in the 1907 Deed, without a comma, indicates that the “appurtenant” language modifies the rights in the ROW, and therefore, only includes that portion of the ROW appurtenant to Defendant Property. Second, they argue interpretation based on a will, specifically the Second Codicil, which became effective at George’s death. The Second Codicil divided the ROW at the “middle line of Horton Lane.” A will has no legal effect until the testator dies, and so no final intent was established by a draft of the will at the time the 1907 Deed was executed. Bamford v. Hathaway, 306 Mass. 160 , 161 (1940). However, the Second Codicil may be helpful to show George’s intent to divide the properties at the “middle line of Horton Lane” in 1906, one year before the 1907 Deed. Third, Plaintiffs argue that the 1907 Deed conveyed only a “part of the land” specifically cited in the 1882 Deed (i.e. it did not expressly include the fee interest in all of the ROW in addition to Defendant Property). If George meant to convey the whole piece of land conveyed in the 1882 Deed, he would not have restricted the description to “part of the land conveyed to me by Chloe [by the 1882 Deed].” The ‘part’ missing from the 1907 Deed is the northerly portion of the ROW because the 1907 Deed bounded the property on the southernmost side of the ROW, which according to the Derelict Fee Statute included the fee interest in the southerly portion of the ROW. [Note 15] Fourth, Plaintiffs argue that the word “appurtenant” implied that the grant of the ROW only included the portion of the ROW appurtenant to Defendant Property.

First, this court must determine whether the 1881 Deed and 1882 Deed establish and control the boundary lines between Defendant Property and Lot 4. The 1881 Deed and the 1882 Deed, both from Chloe to George, describe the property line as the ‘northerly line of Atlantic Avenue,’ instead of the middle line. This appears to grant Defendant Property the entire fee in the ROW (except for the southerly half of the ROW adjacent to Parcel 8.2). However, once George owned the land, he could divide the property in whatever manner he chose. Therefore, it is George’s intent that controls once he deeds land out, and not Chloe’s intent.

The key instrument is the 1907 Deed. It should first be noted that the boundary description of the 1907 Deed, unlike the 1882 Deed, did not include any of the fee interest in the ROW. Instead, George conveyed Defendant Property to Grace “together with all my right, title and interest in said road or Norton [sic] Lane as appurtenant to said parcel.” The issue is whether George conveyed all of his interest in the ROW (which included the entire fee in the ROW except the portion adjacent to Parcel 8.2) or just to the middle of the ROW as it abuts Defendant Property. The plain language of the deed indicates that George intended to convey the portion of the ROW which was “appurtenant to [Defendant Property],” i.e. only to the middle line of the ROW. If George intended to convey his entire interest in the ROW, it would be unnecessary to add the “as appurtenant to said parcel” language and also the language that said he was only conveying a “part” of the land conveyed to him by Chloe in the 1882 Deed. George would have simply said, “together with all my right, title and interest in Horton Lane” or would not have restricted the description to “part” of the land conveyed to him in the 1882 Deed. Also, if Tate’s interpretation is correct, George would have, inconveniently, left all of Lot 4 which he still owned and which abuts the northerly side of the ROW, without a fee interest in the ROW. Moreover, Plaintiffs’ interpretation is consistent with the language in the Second Codicil which was executed a year earlier in March 1906 and became effective at George’s death in 1911, where he bequeathed land “lying north of the middle line of Horton Lane” (including Lot 4) to the YWCA. This is not determinative for our purposes because it became effective after the 1907 Deed; however, it does tend to bolster Plaintiffs’ construction of the 1907 Deed as evidence of George’s intent to preserve rights in the northerly half of Horton Lane for Lot 4.

As a result of the foregoing, I find that the 1907 Deed conveyed only the fee interest in the southerly half of the ROW adjacent to Defendant Property as a part of Defendant Property.

Length of the ROW.

There is no question that Plaintiff Property includes the fee interest in the bluffs and to the area of mean low water in the Harbor. However, whether the ROW extends over the bluffs and to the area of mean low water in the Harbor, is less clear. Plaintiffs argue that the ROW does not extend to the Harbor. To answer this question, this court must first look to the 1872 Deed that created the ROW. The 1872 Deed described Parcel 8.2 as “bounded northerly by an avenue thirty feet wide to be kept open and public forever from the County Road to the Harbor.” Clearly, Chloe’s intent at the time the ROW was established was to have access from both Plaintiff Property and Defendant Property “from the County Road to the Harbor.” Plaintiffs argue that both the 1881 Deed and the 1882 Deed indicate that Horton Lane does not extend to the Harbor. In the 1882 Deed, the property boundary is described as “where the county road is intersected by the northerly line of Atlantic Avenue... thence running easterly along said line, and in the same course, to and down the bank to the waters of Vineyard Haven Harbor.” Similarly, in the 1881 Deed, the property boundary is described as “to a point opposite to and in a line produced from the northerly of Atlantic Avenue.” Plaintiffs argue that this language limited the ROW because it verbally extended the property line instead of using the ROW as the property line. Plaintiffs’ interpretation, however, is misguided and attenuated. The language in the 1881 Deed and 1882 Deed is not clear enough to trump the original clear intent of Chloe from the 1872 Deed. The language in the later deeds does not appear to limit the length and use of Horton Lane, but rather to describe the dimensions of the properties in a way that they could be ascertained. The actual dirt portion of the ROW could only go so far because there was a cliff at the end; therefore, in order for one to visualize the property lines in absence of a public record of the existence and extent of Horton Lane, it appears that this language was added. Finally, the 1881 Deed and the 1882 Deed language that references the boundary line as running to the Harbor can be interpreted as extending the ROW all the way to the Harbor, contrary to Plaintiffs’ narrow construction. [Note 16]

As a result of the foregoing, I find that the ROW extends over the bluff and to the Harbor.

Easement rights in the ROW.

Plaintiffs argue that since no easement rights in the ROW were granted in any of the deeds, any easement rights must be created by estoppel. Plaintiffs also argue that any easement by estoppel does not include any rights in the ROW past the bluff (as previously discussed); nor do those easement rights include the right to build a staircase in order to access the Harbor at the end of the ROW. Casella v. Sneirson, 325 Mass. 85 , 89 (1949) states:

when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid or clearly indicated and prescribed.

This rule is extended by Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965), which states “[t]his rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated.”

The 1872 Deed created the ROW and stated that the ROW ran all the way from Main Street “to the Harbor.” Both the 1881 Deed and the 1882 Deed cited as a boundary “by the northerly line of Atlantic Avenue [the ROW],” and pursuant to the easement by estoppel case law, such language would have included the right to use the entire ROW. [Note 17] [Note 18] As a result, it would appear that as of 1882, all parties which abutted the ROW had the right to use the ROW for its entire length, including that portion of the ROW adjacent to Parcel 8.2. This is consistent with the language in the 1872 Deed, which created the ROW, and stated that the ROW was “to be kept open and public forever from the County Road to the Harbor.” The 1907 Deed states one of its boundaries as “thence westerly along said road or Norton [sic] Lane to the County Road” and also states, “together with all my right, title, and interest in said road or Norton [sic] Lane as appurtenant to said parcel.” Grace, as the grantee of Defendant Property in the 1907 Deed, acquired an easement of way on the ROW which embraces the entire length of the ROW, and which continues to benefit Defendant Property.

The 1967 Deed, where Blomerth purported to grant several owners of lots in the Blomerth Subdivision rights in the ROW (specifically, to walk along Horton Lane to access the Harbor, “to use the beach front” at the end of the Harbor, and to construct “stairs to go up and down the embankment”) is not relied on by either party. Furthermore, it does not affect the outcome of this case because Defendants already had easement rights in the ROW. Defendants were granted rights in the ROW prior to the 1967 Deed, according to the Derelict Fee Statute, since their properties abutted the ROW.

The last question remaining is whether Defendants’ easements rights include the right to build a staircase down the bluff in order to access the Harbor. “When an easement or other property right is created, every right necessary for its enjoyment is included by implication.” Anderson v. DeVries, 326 Mass. 127 , 134 (1950), quoting from Sullivan v. Donahue, 287 Mass. 265 , 267 (1934). “The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use. The right exists even more clearly where without improvement the way is impassible and useless.” Guillet v. Livernois, 297 Mass. 337 , 340 (1937). The ROW is impassible and useless at the Harbor end due to the forty-foot bluff; therefore, if Horton Lane extends over the bluff and to the Harbor, then Tate would have an implied right to construct a staircase down the bluff in order to access the Harbor at the end of the ROW “so long as such improvement [does] not unreasonably increase the burden on the servient tenement.” Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981), quoting from Restatement of Property § 480, comment A (1944). See also Barlow v. Chongris & Sons, Inc., 38 Mass. App. Ct. 297 , 300 (1995), citing Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981) (“Improvements of an easement consistent with safety do not constitute an overburdening of the easement.”) “Whether improvements made are reasonable in view of the equal rights of others is largely a question of fact.” Guillet v. Livernois, 297 Mass. 337 , 341 (1937). The increased burden on Plaintiff Property in this case can be characterized by Defendants’ foot traffic to the Harbor on Plaintiffs’ fee portions of the ROW. The foot traffic to the Harbor would only be available to the six parcels which constitute Defendant Property. In light of Defendants’ right to access the Harbor, the construction of a staircase in order to make the ROW passable and safe does not unreasonably increase the burden on Plaintiff Property. [Note 19]

As a result of the foregoing, I find that Defendant Property has an easement by estoppel to use the ROW to its full extent for access purposes, and, implied within this right, Defendant Property has a right, subject to permitting requirements, to construct a staircase down the cliff in order to access the Harbor at the end of the ROW.

As a result of the foregoing, I ALLOW Tate’s Motion for Summary Judgment with respect to her easement by estoppel in the ROW extending to the Harbor and affirm Tate’s right to construct a staircase over the cliff in order to access the Harbor. I DENY Plaintiffs’ Motion for Summary Judgment.

Judgment to enter accordingly.