By virtue of the instant action, the plaintiff, Eugene Lepesqueur (plaintiff / Lepesqueur) seek a declaration regarding certain claimed easement rights in a paper street. The paper street is shown on a plan as running through land owned by the plaintiff in Williamstown, Massachusetts. Robert and Ann Marie Swann (defendants / Swanns) who own property which abuts the paper street claim that no such easement rights exist.
The plaintiff has now moved for summary judgment and has moved, as well, to strike portions of defendant Robert Swanns Affidavit. That Motion to Strike will be Allowed as to ¶ 4, the portion of ¶ 5 which reads and to the best of our knowledge for the years Deborah Fox owned the property, and the portion of ¶ 6 which reads To our knowledge the driveway was in the location shown on Exhibit B during the entire time Deborah Fox owned the property. See Mass.R.Civ.P. 56 (e).
The primary issues presently in this dispute concern the following:
(a) Whether the plaintiff possesses an easement by estoppel or necessity over the paper street.
(b) If so, whether such easement has been extinguished or abandoned.
Predicated upon the parties' oral arguments, their memoranda and relevant exhibits, this court concludes that the plaintiff possesses a valid easement by estoppel (an easement of way) over the paper street known as Cobble View Road in Williamstown. This court is satisfied, moreover, that said easement has been neither abandoned nor extinguished. Background
The material facts are not in dispute.
(1) The plaintiff owns a subdivided tract of unimproved land in Williamstown, Massachusetts consisting of a portion of a development known as the Stratton Estates. This development is depicted on a subdivision plan entitled Stratton Estates Building Lot Plan No.2 and 3 Laid Out for Stratton Development Co. (Stratton Plan / 1967 Plan) dated February 13, 1967. [Note 1] The Stratton Plan was approved by the Town of Williamstown Planning Board on or about August 9, 1967.
(2) Said tract was conveyed to Lepesqueur by Robert T. Arnold Jr., as Trustee of Stratton Development by deed dated July 19, 1983, and recorded with the Northern Berkshire District Registry of Deeds (Registry) at Book 721, Page 531.
That deed at first describes the land conveyed with a perimeter metes and bounds description, followed by a more particularized description, as follows:
Meaning and intending to convey and hereby conveying Lots S28-S31, inclusive; Lots S18-S24, inclusive, Lots S54-S62, inclusive; Condominium Area C1; and the portion of Cobble View Road not deeded to the Inhabitants of the Town of Williamstown as shown on Plan entitled Stratton Estates Building Lot Plan No. 2 and 3 Laid Out For Stratton Development Co., dated Feb. 13, 1967 and on file in the Northern Berkshire Registry of Deeds in Plan Book 240G, Pages 14 and 15.
(3) Lepesqueur wishes to develop the tract but has been unable to resolve his differences with the defendants over the use of Cobble View Road.
(4)Cobble View Road is depicted on the Stratton Plan as running from Stratton Road in the west, intersecting with Candlewood Drive and continuing on in a semicircular shaped pattern. [Note 2] Presently, a portion of Cobble View Road is improved by a gravel driver as shown on Plan Showing Monumentation Prepared for Eugene R. Lepesqueur Cobble View Road Williamstown MA (Lepesqueur Plan). [Note 3]
(4) The remainder of Cobble View Road is an unconstructed paper street, i.e. a street shown on a recorded plan but never built on the ground. Shapiro v. Burton, 23 Mass. App. Ct. 327 , 328 n. 3 (1987).
(5) The Swanns purchased the property known and numbered as 64 Candlewood Drive by deed dated July 19, 2002. [Note 4] That property is part of the Stratton Estates development, and is depicted as lots S52 and S53 on the 1967 Plan. Both lots are described in the deed as bounded [ ]on the south by the north line of Cobble View Road.
(6) The chains of title of both the plaintiffs and the defendants originate with a common grantor, Robert T. Arnold, Jr., Trustee of Stratton Development Co. [Note 5]
(7) The Swanns have used and maintained a small portion of Cobble View Road as a driveway and a side yard. [Note 6] The driveway connects Candlewood Drive to the garage located on lot S52. [Note 7] Defendants have also mowed the grass on the part of Cobble View Road that they have treated as an extension of their yard.
(8) Defendants own the fee in Cobble View Road to the center of the way to the extent it abuts their lots. [Note 8] See G.L. c. 183 §58, the Derelict Fee Statute. [Note 9]
(9) Joann Bates owned 53 Candlewood Drive, which is shown as lot S32 on the 1967 Plan, and is located on the opposite side of Cobble View Road from the defendants. By deed dated September 10, 2009, Joann Bates conveyed her fee interest in Cobble View Road to the plaintiff. [Note 10]
(10) The westerly portion of Cobble View Road intersects Candlewood Drive. Traveling eastward from that intersection, the road runs along land owned by the defendants, and land formerly owned by Joann Bates, before running through the land of the plaintiff. The portion of Cobble View Road that bounds the defendants land is essentially flat, open land, containing an asphalt driveway leading to the defendants garage, a side yard, and a gravel lane. [Note 11] The gravel drive runs from the edge of the defendants driveway and terminates several lots to the east, between lots S30 and S55 as appearing on the 1967 Plan. [Note 12]
(11) From the end of the gravel lane, Cobble View Road is depicted as continuing in an easterly direction, through a number of abutting parcels owned by the plaintiff. Shortly before the paper street reaches the public way, it traverses land designated as wet lands. [Note 13]
(12) The Massachusetts Department of Environmental Protection regulates the construction of access roadways through wetlands. See 310 C.M.R. 10.53(3)(e).
(13) On June 12, 1997, Lepesqueur filed a plan with the Registry (1997 Plan). On or about June 10, 1997, that Plan had received an ANR (Approval Under the Subdivision Control Law Not Required) endorsement pursuant to G.L. c. 41 §81P, from the Williamston Planning Board. The 1997 Plan shows the land at issue that Lepesqueur owns in the Stratton Estates subdivision as divided into two large parcels, i.e. Lot B, together with Lot A which marked as not a building lot. [Note 14] Cobble View Road is not depicted on the 1997 Plan.
Summary Judgment Standard
Summary judgment is to be granted when "pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with 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). The moving party bears the burden of proving the absence of controversy over material facts and that it deserves a judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Hogan v. Riemer, 35 Mass. App. Ct, 360, 364 (1993). A corollary to the moving party's burden is that the court is to "make all logically permissible inferences" from the facts in the non-moving party's favor. Willitts v. Roman Catholic Archbishop of Boston, 41 1 Mass. 202 , 203 (1991).
Mass R. Civ. P. 56 (c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon a judicial determination of a question of law. For summary judgment to enter. the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved.
With respect to the issue concerning the existence of a valid easement by estoppel over Cobble View Road, the underlying facts are undisputed. As a consequence, this case is ripe for summary judgment.
1. Does the plaintiff possess an easement?
The plaintiff argues that he has an easement of way over Cobble View Road under one or both of two theories: easement by estoppel or easement by necessity. Because this court concludes that the plaintiff holds an easement by estoppel, it need not address plaintiffs argument concerning an easement by necessity. [Note 15]
[W]hen 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 out or clearly indicated and prescribed." Casella v. Sneierson, 325 Mass. 85 , 89 (1949). The rule is applicable even if a way is not yet in existence, so long as it is contemplated and sufficiently designated. Tufts v. Charlestown, 2 Gray 271 , 273 (1854); Casella v. Sneierson, 325 Mass. at 90; Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965); see also A.L. Eno, Jr., & W.V. Hovey, Real Estate Law, c. 8, §8.16 (4th ed. 2011 Supp.). This creates an appurtenant right of way, and it shall exist even if there are other ways leading to the land. Murphy v. Mart Realty of Brockton, 348 Mass. at 678; Patterson v. Simonds, 324 Mass. 344 , 352 (1949). These rights apply even if the way under consideration is obstructed, overgrown and impassable. Canton Highlands v. Searle, 9 Mass. App. Ct. 48 , 55 (1980).
Thus, in order for there to be an easement by estoppel, (a) the property must be described as bounding on a way or refer to a plan showing that property bounding on a way, [Note 16] (b) the way must be sufficiently designated, and (c) the chain of title must originate with a common grantor.
Applying these principles to the facts at hand establishes the existence of an easement by estoppel. A way need not be staked or laid out on the ground to be sufficiently designated, but must be clearly indicated or prescribed, i.e. when the way is described in a deed or clearly marked on a plan referenced by the deed. Murphy v. Mart Realty of Brockton, 348 Mass. at 678 (street adequately designated by reference to plan); Olson v. Arruda, 328 Mass. 363 , 364 (1952) (way found when described in deeds and where deeds referenced a plan); Tufts v. Charlestown, 2 Gray at 273 (passageway sufficiently designated when described in deed); Post v. McHugh, 76 Mass. App. Ct. 200 , 203 (2010) (way sufficiently designated when shown on plan referenced in deed).
Cobble View Road is sufficiently designated by the 1967 Stratton Estates Subdivision Plan. The paper street is laid out in its entirety and is plainly marked as a way. The 1967 Plan shows the contemplated way with each of the lots fronting upon the paper street. Moreover, both the deeds of the plaintiff and the defendants alike, reference the 1967 Plan. The defendants lots are described in the defendants deed as bounded [ ]on the south by the north line of Cobble View Road.
The lots owned by plaintiff Lepesqueur are bounded by Cobble View Road. The defendants assert that Lepesqueurs lots do not abut Cobble View Road because the deed does not describe them as bounded by the said Road. Alternatively, they argue that a large, singular tract of land was conveyed to Lepesqueur without any individual lots fronting on the Road. [Note 17] However, both arguments ignore the pertinent language in the deed. [Note 18]
Lepesqueurs deed plainly conveys individually designated parcels, not a singular tract. The deed first describes the entirety of the land with a bounding description, using the numbered lots and both Candlewood Drive and Cobble View Road as monuments in the description. Thereafter, as noted supra, the deed describes the land conveyed with the following specific description: Meaning and intending to convey and hereby conveying Lots S28-S31, inclusive; Lots S16-S24, inclusive, Lots S54-S62, inclusive; Condominium Area C1; and the portion of Cobble View Road not deeded to the Inhabitants of the Town of Williamstown as shown on Plan entitled Stratton Estates Building Lot Plan No. 2 and 3 Laid Out For Stratton Development Co., dated Feb. 13, 1967 and on file in the Northern Berkshire Registry of Deeds in Plan Book 240G, Pages 14 and 15. It is clear from both the bounding description and the specific description that the land so conveyed consisted not of a single undesignated tract, but of individual parcels, the Condominium Area, and the relevant portion of Cobble View Road.
Assuming, arguendo, the language in the deed were not clear enough to warrant the conclusion that Lepesqueurs lots are bounded by Cobble View Road, the fact remains that the said deed references the 1967 Plan. A reference to a plan is to be as much regarded as the true description of the land conveyed, as [it] would be if expressly recited in the deed. Magoun v. Lapham, 21 Pick. 135 , 138 (1838). The plan becomes incorporated by reference into the deed. Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). The 1967 Plan shows the entire Stratton Estates Development, and depicts the individual lots as bounded by, and abutting Cobble View Road. A lot abuts a street when the property has frontage along the length of the way. Emery v. Crowley, 371 Mass. 489 , 494 (1976). Here, each lot has frontage along Cobble View Road. Consequently, each lot abuts the way.
Moreover, both the plaintiff and the defendants trace their respective chains of title from a common grantor. Plaintiff purchased his land in 1983 from Robert T. Arnold Jr., Trustee of Stratton Development Co. Likewise, the defendants derive their title from Robert T. Arnold Jr., Trustee of Stratton Development Co. Thus, the grantor and those claiming under him are estopped from denying the existence of such street or way. Accordingly, the plaintiff Lepesqueur possesses an easement of way by estoppel appurtenant to his lands, over the paper street Cobble View Road.
2. Has the easement been abandoned?
The defendants contend that any such easement over the paper street has been abandoned or extinguished. [Note 19] In support of that claim, they point to the fact that the relevant portion of Cobble View Road, laid out in 1967, has never been constructed or staked out, and consists primarily of woodlands and brush. They point as well, to the 1997 Plan, which depicts Lepesqueurs land as consisting of two large parcels without Cobble View Road. The defendants, as the parties asserting that the easement has been abandoned or extinguished, have the burden of proof. 107 Manor Avenue LLC. v. Fontanella, 74 Mass. App. Ct. 155 , 158 n. 9 (2009), citing New York Cent. R.R. Co v. Swenson, 224 Mass. 88 , 92 (1916).
Abandonment of an easement is a question of intention, and cannot be found unless it clearly appears that such abandonment was intended by the owner. Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958); Dyer v. Sanford, 9 Met. 395 (1845). Mere non-use, no matter how long continued, will not work an abandonment. Id., at 159; Dubinski v. Cama, 261 Mass. 47 , 57 (1927); Arnold v. Stevens, 24 Pick. 106 , 122-113 (1839); Lemieux v. Rex Leather Finishing Co., 7 Mass. App. Ct. 417 , 421 (1979). In order to establish the abandonment of an easement, there must be 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. Dubinski v. Cama, 261 Mass. at 57, quoting Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269 , 272 (1913) citing Willets v. Langharr, 212 Mass. 573 , 575 (1912).
Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement. Cater v. Bednarek, 462 Mass. 523 , 528 n.15 (2012); Parlante v. Brooks, 363 Mass. 879 , 880 (1973); Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965).
Our cases indicate that failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment. 107 Manor Avenue LLC. v. Fontanella, 74 Mass. App. Ct. at 158. Abandonment has been established in the following cases: Sindler v. William M. Bailey Co., 348 Mass. 484 (1965) (easement of way crossing a brook abandoned when dominant estate acquiesced to fence obstructing the way, did not use the way for thirty-five years, and the bridge over the brook disappeared and was not replaced); Lund v. Cox, 281 Mass. 484 (1933) (abandonment found where nonuser of thirty-seven years combined with acquiescence to a physical obstruction which prevented use of the easement); King v. Murphy, 140 Mass. 254 (1885) (easement abandoned where dominant estate erected fence obstructing easement, and constructed alternate access to lot); The 107 Manor Avenue LLC v. Fontanella, 74 Mass. App. Ct. 155 (2009) (abandonment found where nonuse combined with an acquiesced to fence across the way); Lasell College v. Leonard, 32 Mass. App. Ct. 383 (1992) (easement abandoned where long term nonuse and acquiescence to the adverse use of others, plus the erection of fence by the dominant estate fencing the way off from the rest of the land of the dominant estate).
The present matter is similar to that described in the case of Desotell v. Szczygiel, 338 Mass. 153 , (1958). At issue in Desotell was whether there had been an abandonment of a right of way which traveled through the land of the defendant to reach the land of the plaintiffs. In that case, [f]or a continuous period from 1905 to 1938 there were located on that portion of the right of way running across the defendant's land as shown on the plan trees, including a large elm, a large boulder, and bushes [ ] and the way could not be used for vehicular traffic, and no use was made of it for foot travel. Id. at 156. The Court found that all that is relied on to show abandonment is nonuse for many years by the [plaintiffs] and their predecessors, coupled with their failure to clear the right of way of its natural cover of trees and brush. This falls far short of establishing abandonment. Id. at 159. [Note 20] Nonuse by itself, however long continued, will not operate to extinguish an easement. The 107 Manor Avenue LLC v. Fontanella at p. 158.
Here, the relevant portion of Cobble View Road has never been constructed. A short portion of the paper street on Lepesqueurs land consists of a gravel drive, but the remainder of the land over which it travels is predominantly woodland and brush. As with Desotell, the defendants herein claim abandonment by virtue of the alleged non-use by the plaintiff and the failure to clear the right of way of its natural cover of trees and brush. As we have seen however, such non-use coupled with a failure to clear will not suffice to demonstrate that an abandonment has taken place. [Note 21]
In similar fashion, the recording of the ANR plan will not constitute an abandonment even when combined with years of non-use. The 1997 Plan depicts Lepesqueurs land as consisting of two parcels, without reference to Cobble View Road. The Swanns argue, in this regard, that the 1997 ANR Plan has superceded the 1967 definitive subdivision plan. As a matter of law, an ANR plan, pursuant to G.L. c. 41 §81P, [Note 22] cannot modify the location of, or serve to eliminate, subdivision ways shown on an approved plan. Moreover, the limited utility of an ANR plan vis-a-vis an approved definitive subdivision plan is set forth in G.L. c. 41 §81O. That Section provides in pertinent part as follows:
After the approval of a plan the location and width of ways shown thereon shall not be changed unless the plan is amended accordingly as provided in section eighty-one W; but the number, shape and size of the lots shown on a plan so approved may, from time to time, be changed without action by the board, provided every lot so changed still has frontage on a public way or way shown on a plan approved in accordance with the subdivision control law of at least such distance, if any, as is then required by ordinance or by-law of said city or town for erection of a building on such lot, and if no distance is so required, has such frontage of at least twenty feet.
Thus, in order to alter the location and width of ways shown on an approved subdivision plan, such as the 1967 Plan, one must resort to the procedure recited in G.L. c. 41 §81W. As previously noted, the 1997 ANR Plan depicts Lepesqueurs land divided into two parcels, with parcel A denoted not a building lot. That 1997 Plan also depicts such land without Cobble View Road.
However, this ANR plan did not bring about the changes seen on the plan inasmuch as the only method for changing the location of ways shown on an approved subdivision plan is through utilization of the procedure set forth in G.L. c. 41 §81W.
Section 81W, which is designed to protect purchasers of lots in a subdivision and the larger public, would be altogether and easilysubverted if an approved plan could be altered by the simple expedient of procuring a Section 81P approval not required endorsement. Hamilton v. Planning Board of Beverly, 35 Mass. App. Ct. 386 , 389 (1993). Furthermore, [t]he endorsement of such a[n ANR] plan is a routine act, ministerial in character, and constitutes an attestation of compliance neither with zoning requirements nor subdivision conditions. Id. at 389, citing Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 , 602-605 (1980).
It is difficult to impute a conclusive and unequivocal intent to abandon Cobble View Road when the 1997 ANR Plan could not, as a matter of law, extinguish or alter the way. [Note 23]
The defendants reliance upon Blue View Construction Inc., v. Town of Franklin, 70 Mass. App. Ct. 345 (2007) is misplaced. In Blue View, the Appeals Court affirmed a decision of the Superior Court holding that the plaintiff, Blue View Construction Inc. (Blue View), had abandoned a previously approved subdivision plan. In that case, Blue View owned approximately twenty acres which abutted forty-four acres owned by the Loycanos. Subsequently, Blue View subdivided its land, selling off a portion having frontage, and leaving itself with approximately twelve landlocked acres. In 1986, Blue View, the Loycanos and Marguerite Building Corporation entered into a memorandum of understanding to submit a subdivision plan to develop the Loycanos property and Blue Views landlocked parcel. In 1987 the parties submitted a subdivision plan for a project entitled Populatic Heights. However, for reasons not clear from the decision, the road that was to provide frontage to Blue Views parcel instead traveled ten feet away from the boundary of the land. The intervening ten foot strip was never conveyed to Blue View.
After the subdivision plan was recorded, a number of issues arose. The company hired to grade the land for the road removed too much earth, rendering the land unsuitable for construction. In 1991, Marguerite Building Corporation filed for bankruptcy. Multiple lawsuits ensued between the Town, Blue View, the Loycanos and the grading company.
In 2001, Marinella Development LLC (Marinella), agreed to purchase the Loycanos property. At that time, Marinella filed a request to modify the subdivision plan of 1987 so that the land would be repaired, the road would be constructed, and Blue View would be given access to the road to support seven buildable lots. Blue View opposed the modification, whereupon Marinella withdrew the application. Blue View then approached Joseph Loycano, offered him what appeared to be a below-market price for his land (which Loycano declined), then threatened that, absent a sale, [Blue View] would tie up Loycanos development indefinitely. Blue View Construction Inc., v. Town of Franklin, 70 Mass. App. Ct. at 350. In 2002, Marinella and the Loycanos applied for a comprehensive permit under G.L. c. 40B.
The Appeals Court concluded as follows:
At the outset, it appears to us that the Populatic Heights plan of subdivision had been abandoned not later than 2002. That plan was submitted in 1987 by Blue View and Marguerite, was approved, and subsequently generated not development, but rather earth removal and law suits. Marguerite, the Loycanos' developer, disappeared into the bankruptcy court, and was eventually succeeded by Marinella. On March 26, 2002, the Loycanos and Marinella filed the G. L. c. 40B application that was ultimately approved on a reduced scale. By this date, Blue View's coventurers in the Populatic Heights project (the Loycanos) had effectively given up on it, and they and their new developer (Marinella) started on a course that would remove from the Populatic Heights proposed development a significant portion of the real estate on which the development was to take place. Thus, the approved plan of the Populatic Heights subdivision of 1987 could never be implemented and had effectively been withdrawn. Whatever rights Blue View might have against the Loycanos in the circumstances, the town could not be precluded from authorizing alternative development plans because of a fifteen-year-old approval of a proposal that could never come to fruition. Id. at 352. (emphasis added).
[That] Blue View had not genuinely changed any position in reliance on the approved Populatic Heights plan is probably best demonstrated by the fact that [it] rejected proposals by Marinella that would have given Blue View everything it had been seeking for fifteen years, a powerful indication that Blue View's objectives could only be satisfied by a cheap acquisition of the Loycano land. Id. at 354.
It is clear that both Blue View and the Loycanos abandoned the 1987 subdivision. In rejecting the 2001 modification, which if approved, would facilitate the development of Populatic Heights, and in counter offering to buy the Loycano property, Blue View abandoned the subdivision. The Loycanos effectively withdrew the 1987 subdivision when they moved forward in 2002 with a new development under G.L. c. 40B, on the same land. Contrary to the case at bar, the parties in Blue View, moved proactively to abandon the 1987 plan with a series of affirmative acts.
Furthermore, Blue View concerns the abandonment of a subdivision, rather than an easement. The Appeals Court was unambiguous when affirming the lower court determination that Blue View held no easement over the Loycano land. Blue View Construction Inc., v. Town of Franklin, 70 Mass. App. Ct. at 355.
3. Has the easement been extinguished by adverse acts?
Additionally, the Swanns argue that even if Lepesqueur possessed an easement, it has been extinguished by adverse actions. To wholly extinguish an easement by prescription, the acts of the servient tenant [must be] utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement for at least the prescriptive period of twenty years. Cater v. Bednarek, 462 Mass. 523 , 528 n.16 (2012) quoting New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931). These acts of the servient tenant must render the use of an easement practically impossible. Post v. McHugh, 76 Mass. App. Ct. 200 , 204-205 (2010). Furthermore, a use of the land by the servient tenant not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore would not extinguish such rights. Patterson v. Simonds, 324 Mass. 344 , 352 (1949). Thus, the servient estate is bound to prove occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely, and without interruption for more than twenty years. Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 969 (1987).
In the case at bar, the acts of the Swanns on Cobble View Road are not of such nature, scope, or of such long duration as to eliminate the easement rights of others in the way. The defendants have presented evidence tending to establish a course of conduct, since their purchase of the property in 2002 that utilizes the portion of the way adjacent to their land as a driveway and a side yard. [Note 24] Photographs depict the area at issue and show a flat, grassy area, containing an asphalt driveway leading to the defendants home, and a gravel lane. [Note 25] There is nothing placed or constructed by the defendants in this area to obstruct the use of the easement. Both vehicular and pedestrian traffic are quite capable of traversing such improvements. Moreover, even if the acts of the Swanns were sufficient to render the use of the easement practically impossible, they have not supplied sufficient evidence for the entire prescriptive period. Their evidence covers no more than a ten year period.
This case is unlike the many in which an easement was found to be extinguished by the adverse acts of the servient estate. In those cases, universally, the servient estate erected an unbroken [Note 26] physical impediment over or on the easement, rendering its use by the dominant estate actually or practically impossible for the prescriptive period. In the indicated cases, the adverse conduct of the servient estate prevented the intended use of the easement. See Pappas v. Maxwell, 337 Mass. 522 (1979) (right of way extinguished when servient tenant constructed outhouse upon it and planted shrubs); New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 (1931) (easement extinguished where servient estate erected structures on easement and pursued a course of conduct to exclude all others); Post v. McHugh, 76 Mass. App. Ct. 200 (2010) (easement partially extinguished where servient estate placed large boulders obstructing part of the way for the statutory period); Yagjian v. OBrien, 19 Mass. App. Ct. 733 (1985) (boundary fence built across right of way by servient tenants extinguished easement); Shaw v. Solari, 8 Mass. App. Ct. 151 (1979) (fence and chicken coop built over easement extinguished interests of dominant estate).
In the case at hand, the defendants have merely constructed an asphalt drive over a relatively small portion of the easement, i.e. an improvement which is designed to facilitate vehicular travel. They have also maintained a side lawn. Neither of these improvements, even if they existed for the requisite twenty year duration, would act to impede the use of the easement. Nor have the defendants erected a physical monument or fence over the easement, or otherwise impeded travel over the easement.
Accordingly, the plaintiff, Eugene Lepesqueur, possesses a valid easement by estoppel over the paper street known as Cobble View Road [Note 27] in Williamstown, Massachusetts. The issue of attorneys fees under G.L. c. 231 §6F, while raised, has not be suitably argued and will not therefore, be further addressed herein.
In view of the foregoing, it is hereby
ORDERED that the plaintiffs Motion for Summary Judgment is hereby ALLOWED as set forth herein. It is further
ORDERED that the defendants, their agents, servants, employees, attorneys, and all other persons in active concert or participation with any of them who receive actual notice of this Order by personal service or otherwise, are permanently enjoined and restrained from obstructing or interfering with the vehicular access, ingress or egress, to the lots which are currently owned by the plaintiff and are as depicted on the Stratton Plan referenced herein.
Judgment to issue accordingly.
[Note 1] Recorded with the Northern Berkshire District Registry of Deeds Plan Book 240G Pages 13, 14, and 15.
[Note 2] Affidavit of Robert Ware, Exhibit 1, 1997 Plan of Land Surveyed for Eugene R. Lepesqueur; Affidavit of Michael Pill, Exhibit 2a, Stratton Estates Building Plan no. 2.
[Note 3] See Affidavit of Brian B. Donegan, P.L.S., Attachment No. 3.
[Note 4] Affidavit of Robert Swann, Exhibit A, North Berkshire Registry of Deeds Book 1067, Page 104.
[Note 5] Defendants chain of title, by mesne conveyance, traces to Northern Berkshire Deeds Book 639, Page 254; and Book 639, Page 255.
[Note 6] See Lepesqueur Plan.
[Note 7] Affidavit of Robert Swann, Exhibit B,. The location of the driveway was moved slightly in 2008.
[Note 8] Depicted as Lots S52 and S53 on the so-called Stratton Plan.
[Note 9] This is an uncontested fact. Through the retroactive application of the Derelict Fee Statute, the Swanns own the fee interest to the center of the way, notwithstanding the call in the deed for the land to be bounded by the north line of Cobble View Road.
G.L. c. 183 §58 provides that: Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument 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 side line.
[Note 10] Affidavit of Robert Ware, Exhibit 2, Northern Berkshire Deeds Book 01384, Page 968.
[Note 11] Affidavit of Eugene Lepesqueur, Exhibit A, 2011 photographs.
[Note 12] Affidavit of Surveyor Brian Donegan, P.L.S., Plan of Land showing Cobble View Road off Candlewood Drive, dated 10/21/2011.
[Note 13] Affidavit of Michael Pill, Exhibit 4, Limit of Wetlands 1987 plan of land.
[Note 14] Affidavit of Robert Ware, Exhibit 1, Plan of Land Surveyed for Eugene R. Lepesqueur.
[Note 15] Plaintiff argues that he has an easement by necessity because of the presence of wetlands at the easterly end of his land. Cobble View Road, as laid out on the 1967 Plan, traverses the wetlands. Plaintiff anticipates difficulty in securing the appropriate approvals from the Massachusetts Department of Environmental Protection to construct an access road through the wetlands under an application of 310 C.M.R. 10.53(3)(e).
[Note 16] Easement by estoppel equally applies to land on or by the sideline of a way. Casella v. Sneierson, 325 Mass. 85 , 90 (1949). Of course the distinction between land bounding on or by a way, and land which bounds on or by the sideline of a way may be of little significance since the enactment of G.L. c. 183 §58.
[Note 17] The defendants additionally argue that because Lepesqueur filed an ANR plan in 1997 (see Affidavit of Robert Ware, Exhibit 1) showing the land he owns as two large parcels without the road that there are no lots fronting on a way. However, the defendants reliance on this plan is misplaced. The 1997 Plan does not alter the fact that when Lepesqueur purchased the land in question in 1983, he purchased lots bounded by Cobble View Road. Any subsequent re-subdivision of the land will have to respect the easement rights of others in the paper street, and the way cannot be altered without the consent of all parties having rights therein. Anderson v. Dervies, 326 Mass. 127 , 132 (1950).
[Note 18] The logic in the defendants last argument is not entirely clear. They appear to contend that Lepesqueur has no right to travel over the portion of Cobble View Road of which the Swanns own the fee in the way to the middle of the road pursuant to G.L. c. 183 §58 as Lepesqueurs land does not abut it. This line of thinking presumes that 1) Cobble View Road ends at the end of the Swann property, and 2) that Lepesqueur owns an undivided, singular parcel. See Emery v. Crowley, 371 Mass. 489 (1976) (Property at the end of a way does not abut the way). Of course, Cobble View Road does not end at the edge of the Swann land, it continues as a paper street through Lepesqueurs land and eventually becomes a constructed, public way. Nor for that matter does Lepesqueur own an undivided, singular parcel. Therefore, Emery and its ilk are inapposite to the case at bar.
[Note 19] Both extinguishment by adverse acts and abandonment are affirmative defenses which should have been asserted in the pleadings. Neither affirmative defense was presented in the defendants answer, but was instead raised in their opposition to summary judgment brief. This court could dispose of this contention on the ground that the affirmative defenses have not been pleaded.
[Note 20] Additionally, in Desotell, the Court found that the right of way was not used from 1905 to 1938, and that it was covered with trees and brush during that time. However, the presence of these objects cannot be said to constitute an adverse use by the servient tenant, in the absence of a showing that the servient tenant planted the trees and brush on the right of way. There was no such showing here. The master did find that there was a dump located on the right of way during this period. But it did not appear that the servient tenant established this dump or that he used it. Nor did it appear that the dumping interfered with the use of the right of way or had such an appearance of permanence as to create a risk of doubt as to the continued existence of the easement. Desotell v. Szczygiel, 338 Mass. at 159-160.
[Note 21] Even if Lepesqueur had abandoned his interest in Cobble View Road, that by itself would not extinguish the way. Others will have cognizable interests in the way, either by way of an easement by estoppel, or through the Derelict Fee. For example, pursuant to G.L. C. 183 §58, the Derelict Fee, all abutters to Cobble View Road have an easement of travel over the entire length of the way, which does include the unconstructed portion thereof. Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987). Ergo, in order to extinguish or alter this way, consent or release must be obtained from all parties having rights therein. Anderson v. Devries, 326 Mass. 127 , 132 (1950).
[Note 22] G.L. c. 41 §81P states in relevant part as follows: Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words approval under the subdivision control law not required or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision.
[Note 23] It is also some what notable that here the plaintiff who is asserting his right to the easement is also the same person who filed the 1997 ANR plan.
[Note 24] Affidavit of Robert Swann. Furthermore, even if the statements in the affidavit regarding the actions of the Swanns predecessor in title were not inadmissible hearsay, and even if they were true, the alleged act of the predecessor in title in maintaining a driveway over Cobble View Road is not sufficient to extinguish the easement for the same reasons elucidated in regards to the defendants actions.
[Note 25] Affidavit of Eugene Lepesqueur, Exhibit 1 Photographs.
[Note 26] The Court in Yagjian v. OBrien, 19 Mass. App. Ct. 733 (1985) made the distinction between an unbroken line of fencing across an easement and a gate: Unlocked gates or barways may have the practical effect of burdening or delaying passage, but, by their very nature, they are consistent with, and contemplate, passage. [ ]Boundary fencing, unbroken, is of a different character. It is meant, unambiguously, to impede passage. Set across a right of way, it is wrongful and actionable. Id. at 735. (citations omitted).
[Note 27] As shown on the Plan designated Stratton Estates.