MISC 99-259318

February 11, 2013


Scheier, C.J.


On October 4, 1999, Plaintiffs Roger L. Hebert and Virginia L. Hebert (Heberts) commenced this action pursuant to G. L. c. 231A, seeking to enforce their alleged record easement rights over Defendant Tenerowicz’s property and to confirm the nature of such rights. In their verified complaint, Plaintiffs’ requested this court to: (1) enter judgment declaring they have an easement over Defendant’s land; (2) issue an order granting them the right to maintain the easement; and (3) issue a Decree permanently enjoining Defendant, and all persons claiming under him, from obstructing or otherwise interfering with the Heberts’ use of the easement.

On December 2, 1999, this court issued an Order for Preliminary Injunction that enjoined Defendant from blocking the Heberts’ access to the disputed way. (Kilborn, C. J.). [Note 1] On April 28, 2000, the Heberts filed a complaint for Contempt under Mass. R. Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982), and a hearing was held on the motion on May 11, 2000. At the hearing this court found Defendant in violation of the Preliminary Injunction for failing to remove obstacles that blocked the Heberts’ access to the disputed way. [Note 2]

This matter was originally scheduled for trial on October 30, 2003; however, the case was reported settled and the terms of the settlement were read into the record and transcribed. As a result, a Forty-Five Day Order issued dismissing the case on December 15, 2003, if the court did not receive a stipulation of dismissal or a request for an extension to complete documents pertaining to the parties’ settlement. By agreement of the parties, this court extended the dismissal date to January 15, 2004. Having received nothing from the parties by the extended deadline, this court issued a Judgment of Dismissal on August 23, 2004.

On June 20, 2005, Plaintiffs filed a Motion to Remove Judgment of Dismissal and Assign Trial Date. [Note 3] A hearing on the motion was held on October 5, 2005, at which time the motion was withdrawn because the parties again reported that they had reached a settlement and an agreement was read into the record. On September 29, 2009, Plaintiffs filed a Motion to Enforce Settlement Agreement. This motion was subsequently denied based on this court’s finding that the agreement was too vague to demonstrate a clear meeting of the minds in regard to the location of the new “agreed upon” easement. [Note 4] As a result this matter was set down for trial.

A one-day trial was held on May 13, 2010. [Note 5] At trial, this court heard the testimony of four witnesses: Roger L. Hebert, Donald A. Pera, R.L.S.; Virginia L. Hebert, and Charles Tenerowicz. [Note 6] Fifty-seven exhibits were entered in evidence, and two diagrams with notations made at trial were used as chalks. [Note 7] On June 17, 2010, Defendant Charles Tenerowicz filed his Post-Trial Brief, and on November 29, 2011, Plaintiffs filed their Suggested Findings of Fact and Rulings of Law along with Plaintiffs’ Proposed Judgment.

Based on all of the evidence, the reasonable inferences drawn therefrom, and in light of the post-trial filings, this court finds the following material facts:

1. The Heberts, Plaintiffs, are husband and wife and reside at 1102 East Road, Warren (Plaintiffs’ Property).

2. Francis E. Booth (Francis Booth or Mr. Booth) was the husband of Dorothy F. Booth (Dorothy Booth or Mrs. Booth). Francis and Dorothy Booth were the parents of Plaintiff Virginia Hebert and are Plaintiffs’ predecessors-in-title.

3. Francis and Dorothy Booth were conveyed their land by deed dated August 5, 1957, recorded with the Worcester District Registry of Deeds in Book 3881, at Page 359 (Booth Deed). [Note 8] The deed into Mr. and Mrs. Booth contained the following language under the description of Tract Three: “granting also the privilege of passing and re-passing at any time over said lane to the road near the house now or formerly of Royal Rich, with or without teams. Also granting the right to dig a ditch through the southerly part of the low land nor or formerly of Royal Rich by said lane for the purpose of draining the above described premises.” [Note 9]

4. The Heberts acquired their property through two deeds, the first from Francis Booth and Dorothy Booth and the second from Dorothy Booth. The first deed is dated December 10, 1962, and is recorded in Book 4337, at Page 524 (1962 Deed). The second deed is dated March 3, 1983, and is recorded on March 7, 1983, in Book 7697, at Page 26 (1983 Hebert Deed). [Note 10]

5. The property conveyed to Plaintiffs in the 1962 Deed, as well as the First Tract and Second Tract conveyed to them by the 1983 Hebert Deed, have frontage on East Road (frontage parcels). The Third Tract and the Fourth Tract conveyed to Plaintiffs by the 1983 Hebert Deed are back lots that do not have direct access to East Road (back lots). [Note 11]

6. The 1983 Hebert Deed contains the following language under the description of Tract Three: “granting also the privilege of passing and re-passing at any time over said lane to the road near the house now or formerly of Royal Rich, with or without teams. Also granting the right to dig a ditch through the southerly part of the low land now or formerly of Royal Rich by said lane for the purpose of draining the above described premises.”

7. When this lawsuit was initiated, Kathleen Tenerowicz was Trustee under a Declaration of Trust dated April 19, 1983, recorded in Book 7883, at Page 185 (Tenerowicz Trust). The Tenerowicz Trust is the owner of certain real estate located at 1034 East Road, Warren, as evidenced by a deed dated March 4, 1983, recorded on March 4, 1983, in Book 7696, at Page 58 (Tenerowicz Deed). By an instrument entitled Resignation of Trustee and Appointment and Acceptance of New Trustee, dated and recorded March 27, 2007, in Book 40880, at Page 373, Defendant, Charles Tenerowicz was appointed Trustee of the Tenerowicz Trust. [Note 12]

8. The land owned by the Tenerowicz Trust abuts Plaintiffs’ Property and separates Plaintiffs’ frontage parcels from their back lots (Tenerowicz Property).

9. The Tenerowicz Deed contains the following language: “[s]aid premises are subject to a right of way in Francis E. Booth over a cart road running between two stone walls from East Road to premises of Booth situated easterly of the herein conveyed premises intending all of Booths premises so situated.”

10. Subsequent to the recording of the Tenerowicz Deed, Defendant Tenerowicz commissioned Adney A. Russo to prepare a plan of a portion of the Tenerowicz Property. The plan is dated April 29, 1987, and is recorded in Book 610, at Page 100 (Russo Plan). See Exhibit 10 to the Trial Exhibit List.

11. The Russo Plan depicts a “Right of way to Francis E. Booth” running over the Tenerowicz Property, allowing Plaintiffs to access their back lots from their frontage parcels.

12. In 2000, Plaintiff Roger L. Hebert retained Donald A. Pera, a Registered Land Surveyor in the Commonwealth of Massachusetts, to re-establish the location of the alleged right of way providing access to Plaintiffs’ back lots. On a plan dated June 14, 2000, entitled: “Plan Showing Right of Way in Warren, MA Owned by Roger L. Hebert” (Pera Plan), Mr. Pera depicts the right of way in the same position as it appears on the Russo Plan. See Exhibit 24.

13. Defendant Tenerowicz testified that he does not dispute that there was at one point in time a record easement allowing Francis Booth to pass and re-pass over the Tenerowicz Property in order to gain access the back lots; nor does Mr. Tenerowicz dispute that the easement in favor of Mr. Booth was located in the location as set forth on the Russo Plan and Pera Plan. [Note 13]

14. Mr. Booth traveled over the disputed way, whether by foot or on tractor, to gain access to the back lots from the frontage parcels from the time he was conveyed the Hebert Property in 1957 until he became ill and left the property in 1977.

15. The right of way and easement is sufficient to allow vehicles to pass and re-pass from East Road to the back lots owned by the Heberts.

16. Since Defendant Tenerowicz purchased his property, Plaintiffs have been prevented from using the disputed way as a result of Defendant placing chains with locks across it, parking numerous unregistered vehicles on it and placing used appliances and other debris on it.

* * * * * *

Plaintiffs seek declaratory relief under G. L. c. 231A. A party seeking a declaratory judgment must “set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a definite interest and the denial of such assertion by the other party, where the circumstances . . . indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue.” Hogan v. Hogan, 320 Mass. 658 , 662 (1947). “The actual controversy requirement of G. L. c. 231A, sec. 1, is . . . liberally construed.’’ Boston v. Keene Corp., 406 Mass. 301 , 304 (1989). “[A]n express purpose of declaratory judgment is to ‘afford relief from . . . uncertainty and insecurity with respect to rights, duties, status and other legal relations.” Boston v. Keene Corp., 406 Mass. at 304-5, quoting G. L. c. 231A, § 9. In this action, an actual controversy exists between the parties regarding and relating to their legal rights and duties with respect to the disputed way over the Tenerowicz Property connecting Plaintiffs’ frontage parcels to their back lots.

As framed by the parties, the issues now before this court are: (1) is the record easement to pass over the Tenerowicz Property personal to Francis Booth or is Plaintiffs’ Property benefited by an appurtenant easement; (2) if the record easement is appurtenant to Plaintiffs’ Property, was it extinguished at any point in time; and (3) if the record easement is appurtenant to Plaintiffs’ Property and has not been extinguished, where is the easement located? Plaintiffs argue that based on the documentary evidence, there is a right of way that is not personal to Mr. Booth but which runs with his land, which is now owned by them. Plaintiffs further allege that the right of way was never extinguished and is located as shown on both the Russo Plan and the Pera Plan. While there is no significant dispute on the location of the record easement, Defendant Tenerowicz disputes that the Heberts have any rights in that easement because it was personal to Mr. Booth and, even if the Heberts at one time had rights, they have been extinguished.

As an initial matter, is well-settled that “[t]he parties asserting the easement . . . have the burden of proving its existence.” Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Thus, Plaintiffs bear the burden of proving that their property has the benefit of an appurtenant record easement over the Tenerowicz Property.

“An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with general property in the owner.” A.L. Eno & W.V. Hovey, Real Estate Law § 8.1 (4th ed. 2004), citing Black’s Law Dictionary 509 (6th ed.). An easement or right of way provides rights of ingress, egress, and travel over the land burdened by the easement. See Crullen v. Edison Elec. Illuminating Co., 254 Mass. 93 , 94 (1925); Nantucket Conservation Found., v. Russell Mgmt., 380 Mass. 212 , 216 (1980). An easement can be one of two kinds, an easement in gross, meaning it is “a personal interest in or right to use land of another” McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996); or an easement appurtenant, meaning the benefit or burden passes automatically with the property interest to which it is appurtenant. Restatement (Third) of Property, § 5.1 (2000). Here, Mr. Tenerowicz concedes that there was an express easement (right of way) over the Tenerowitz Property, but he argues that it was an easement in gross held by Mr. Booth.

Accordingly, the first question this court must address is the nature of the record easement over the Tenerowicz Property. “Absent any language to the contrary, an easement is presumed to be appurtenant to another estate and not personal to the grantee.” A.L. Eno & W.V. Hovey, Real Estate Law § 8.3 (4th ed. 2004), citing Jones v. Stevens, 276 Mass. 318 (1931), and cases cited; see also Schwartzmann v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996) (There is a “general presumption favoring appurtenant easements as distinguished from personal easements (easements in gross)”).

The 1983 Hebert Deed states, “… granting also the privilege of passing and re-passing at any time over said lane to the road near the house now or formerly of Royal Rich, with or without terms.” This easement language appears in substantially similar form throughout Plaintiffs’ chain of title dating as far back as June 4, 1903. The evidence contained within this record chain, including the deeds and plans, establishes that the Tenerowicz Property is the land burdened by the record easement. There is nothing contained within Plaintiffs’ chain of title to indicate that the record easement is personal to Mr. Booth. To the contrary, the evidence indicates that the underlying purpose of the disputed way is to grant the title-holder of Plaintiffs’ Property the ability to gain access to the otherwise landlocked back lots. The Russo Plan and the Pera Plan establish that the only way to gain such access is to travel over the Tenerowicz Property. This necessity of access shows that the record easement was intended to benefit the possessor of Plaintiffs’ Property by providing them with a right of entry to their back lots. See Schwartzmann, 41 Mass. App. Ct. at 223 (Holding that “an easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.”).

The only reference to an easement in favor of Mr. Booth personally is in the Tenerowicz Deed, through which Mr. Tenerowicz in his individual capacity deeded his property to himself as trustee of the Tenerowicz Trust. The Tenerowicz Deed states, “[the Tenerowicz property is] subject to a right of way in Francis E. Booth over a cart road running between two stone walls from East Road to premises of Booth situated easterly of the herein conveyed premises… .” However, as owner of the servient estate, Mr. Tenerowicz did not possess the unilateral authority to convert a record appurtenant easement into an easement in gross personal to Francis Booth. Accordingly, this court holds that the right of way was not personal to Francis Booth and that Plaintiffs’ Property is benefited by an appurtenant record easement over the entirety of the disputed way.

Next, this court must address the question of whether Plaintffs’ record easement rights have been extinguished. The burden of proving an extinguishment of an easement rests upon the party raising the claim. See Brennan v. Decosta, 24 Mass. App. Ct. 968 , 969 (1987); see also Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979). An express easement may be extinguished by grant, release, abandonment, estoppel or prescription. Emery v. Crowley, 371 Mass. 489 , 495 (1976); Delconte v. Salloum, 336 Mass. 184 , 188 (1957). There is no evidence to suggest that the easement has been extinguished by grant, release, estoppel or prescription; rather, Defendant Tenerowicz argues that Plaintiffs abandoned the easement.

Extinguishment of an express easement by abandonment is a question of intent. See Delconte v. Salloum, 336 Mass. 184 , 188 (1957). “Mere nonuser of an easement created by grant does not show abandonment.” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927); see also Restatement of Property ( 504 & comment d (1944) (“Non-use does not of itself produce an abandonment no matter how long continued.”). In order to find that express easement rights have been abandoned, 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.” Dubinsky, 261 Mass. at 57, quoting Parsons v. New York, New Haven & Hartford R.R., 216 Mass. 269 , 272 (1913).

As noted above, mere non-use of a right of way is insufficient to find that an individual has abandoned easement rights. Therefore, the fact that Plaintiffs did not regularly use the disputed way is insufficient in light of the fact that there is no evidence of their intention to abandon their easement rights. Mr. Hebert and Mr. Tenerowicz both testified at trial that subsequent to purchasing their property, the Heberts spoke to Mr. Tenerowicz about their alleged rights to pass over the disputed way. Both men also testified that the police were called on multiple occasions in response to disputes over the Heberts attempting to access the disputed way. Furthermore, it was Plaintiffs’ inability to access the way, and the parties’ disagreement about their respective rights therein that led to Plaintiffs filing this action. Under these circumstances it is apparent that Plaintiffs did not intend to relinquish their easement rights. As a result, this court holds that Plaintiffs’ rights in the disputed way have not been extinguished. [Note 14]

The next issue this court must address is the location of the easement. The language of the 1983 Hebert Deed and the Tenerowicz Deed are substantially similar in referring to a“lane” as the location of the easement. There was testimony by Donald A. Para, a Registered Land Surveyor, that he surveyed the Tenerowicz Property in 2000 and the right of way, or “lane” as referred to in the deeds, was identifiable and passable. Mr. Para also testified that he had reviewed the Russo Plan and that the location of the right of way over which the easement runs is in the location as shown on that plan. Here, the deeds expressly grant a right of way and the plans show the location of the disputed way. Therefore, based on the evidence in the record and the credible testimony at trial, this court finds that Plaintiffs’ right of way over the Tenerowicz Property is located as shown on both the Russo Plan and Pera Plan. [Note 15]

Lastly, Plaintiffs seek to (1) enforce their right to maintain the right of way in order to use the easement to access the back lots and to (2) obtain an order preventing Defendant and his successors-in-interest from placing any type of impediment or obstruction on or across the way. The holder of an easement has both the right and the obligation to repair and maintain it, absent an express grant or reservation shifting that burden to the owner of the servient estate. See Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937). The owner of the servient estate may not interfere with the exercise of the easement, but generally is not obliged at common law to repair the easement for the benefit of the owner of the dominant estate. See Doane v. Badger, 12 Mass. 65 , 69 (1807).

Mr. Hebert testified that Mr. Tenerowicz placed unregistered vehicles, appliances and junk items on the right of way and installed a locked chain across it to prevent Plaintiffs from using it. [Note 16] Mr. Tenerowicz’s placement of these obstructions, along and across the right of way is a violation Plaintiffs’ rights in and over the way. Accordingly, this court holds that Plaintiffs have the legal right to maintain the right of way and that Defendant shall not place obstructions of any kind along or on the right of way that would prevent the owner of the dominant estate from passing or re-passing over the right of way; nor shall the owner of the servient estate cause any chains, gates, fences or other such devices to be installed or placed on or across the right of way.

For the reasons set forth above, this court concludes that Plaintiffs have satisfied their burden and have shown that their property has the benefit of an appurtenant easement of access over the disputed way, as shown on both the Russo Plan and Pera Plan. Upon payment of applicable registry fees, the Heberts may record the Pera Plan, together with an attested copy of this Judgment, both of which should be marginally referenced to the parties’ respective deeds.

Judgment to issue accordingly.


[Note 1] More specifically, the Order for Preliminary Injunction ordered Defendant to remove a chain blocking the disputed way and all obstacles that were hindering Plaintiffs’ use of the easement; it also ordered Defendant to permit Plaintiffs’ surveyor to have access to his land to perform an instrument survey.

[Note 2] Defendant was required to pay attorney fees and constable costs in connection with the hearing because of this violation.

[Note 3] This case was transferred to Chief Justice Scheier on September 2, 2005.

[Note 4] There was also a dispute over what, if any, land the Herberts agreed to convey to Defendant Tenerowicz in connection with the purposed settlement.

[Note 5] There was no stenographer present for the trial.

[Note 6] Mr. Tenerowicz represented himself at trial.

[Note 7] Sixty-four sequentially numbered exhibits were brought before the court, fifty-seven of which were admitted in evidence. The exhibits that were not admitted in evidence are numbers 25, 53, 59, 60, 61, 62, and 63 as set forth on the Trial Exhibit List filed by the parties.

[Note 8] All references to recorded instruments are to this Registry.

[Note 9] This easement language in substantially similar form appears in Plaintiffs’ chain of title as far back as June 4, 1903.

[Note 10] Francis Booth died prior to Dorothy Booth conveying the property at issue to Plaintiffs. This dispute involves land conveyed under the 1983 Hebert Deed.

[Note 11] In the 1983 Hebert Deed, the Forth Tract conveyed is refereed to as the “swamp lot.”

[Note 12] Initially, Charles Tenerowicz resided in the single-family dwelling located on the Tenerowicz Property, which is why he was a party to the lawsuit originally in his individual capacity and, as the litigation progressed, he was added as a defendant in his trustee capacity.

[Note 13] As explained below, Defendant argues that this easement was personal to Mr. Booth and alternatively, if it was not personal, that Plaintiffs’ easements rights have been extinguished.

[Note 14] At trial and in his written submissions, Mr. Tenerowitz not only argued that any right of way was personal to Mr. Booth, but he also argued that the use of the right of way by Mr. Booth was for the purpose of gathering ‘stove wood’ for his personal use. There was no support in the evidence for Mr. Tenerowitz’s assertion that the express easement was so limited. See Tehan v. Security Nat(l Bank, 340 Mass. 176 , 182 (1959) (“In the absence of express limitations, . . . a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.”).

[Note 15] This finding that the record easement is located as depecited on Russo and Pera Plans is buttressed by the fact that the Booths used the disputed way from 1957 through 1977 in the location as shown on the plans with no objection from the title-holder of the Tenerowicz Property. See Labounty v. Vickers, 352 Mass. 337 , 345 (1967), quoting Kessler v. Bowditch, 223 Mass. 265 , 268 (1916) (“It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed.”).

[Note 16] Photographs of the unregistered vehicles, appliances, and junk items and the locked chain are in evidence.