Opinion
No. 12–P–232.
2012-11-21
Paul F. HOGAN & another v. Edward C. GORDON, trustee.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Paul F. Hogan and Patricia A. Hogan, appeal from a declaratory judgment of the Land Court locating their reciprocal easement over 120 Racing Beach Avenue in Falmouth. The easement, established in a 1971 deed between the previous owners of both properties, granted the Hogans a right to repair the “rip-rap” protecting their property, 112 Racing Beach Avenue in Falmouth, by accessing the 120 Racing Beach Avenue property. Edward C. Gordon, as trustee of the trust owning the latter property (Gordon), filed a cross appeal from the same judgment. On appeal, the parties raise a variety of claims that question the validity of the judgment. Because none merits relief, we affirm. 1. Ambiguity of the easement. Both parties claim the judge erroneously concluded the deed's language was ambiguous, but argue differing interpretations. The Hogans claim the deed's language provides them full unfettered access to all of Lot 228 from the road, effectively preventing the construction of the proposed addition to Gordon's house. According to the Hogans, the easement burdens the whole of Lot 228 because the term “over” in the deed implies access or use “ over the entirety ” of Lot 228. In contrast, Gordon claims the deed limits the Hogans' access to Lot 228 to a right of repair only “on the shore.” This interpretation would restrict the Hogans' access to Lot 228 to only the land area between the mean high-water line and the rip-rap, and does not create a right of way from the nearby road. We disagree with both claims.
The judge located the reciprocal easements along the entire length of the east-to-west boundary between the two properties and determined the easements' width was twenty feet in both directions from the boundary separating the properties.
The deed stated, “There is granted as appurtenant to the above described lot [Lot 228] an easement over Lot 229, for the purpose of allowing repair of rip-rap on the shore and there is reserved to the grantors an easement over the granted premises [Lot 228] for the same purpose of repairing rip-rap on the shore.”
The original easement, conveyed in the 1971 deed concerning the properties at issue, provided an easement “over the granted premises [Lot 228] for the same purpose of repairing the rip-rap on the shore.” However, the deed's language does not clearly define the easement's location, given that both Lots 228 and 229 are nearly fifty feet in width at the rip-rap and run the length of the area between the road and the mean high-water mark on both properties. The judge, in examining the deed's language, construed the easement “with reference to all its terms and the then existing conditions as far as they are illuminating.” Hamouda v. Harris, 66 Mass.App.Ct. 22, 26 (2006), quoting from Mugar v. Massachusetts Bay Transp. Authy., 28 Mass.App.Ct. 443, 444 (1990). In his examination, the judge attempted to give full context to the use of “over” in the deed, but could not reconcile its use with the lack of geographical definition for the easement. The deed does not explicitly identify any specific location for the easement across Lot 228, nor does it identify the starting point for the easement's right of access. Moreover, the use of the word “over,” as the judge noted, connotes some form of access for the Hogans over Lot 228, but the extent of this scope cannot be clearly ascertained under the circumstances.
The parties offered no concrete evidence illustrating the prior use of the easement that could have aided the judge in resolving the easement's lack of clarity. The language therefore creates an ambiguity in whether the deed may be read to create a right of access over the entirety of Lot 228, over some part of Lot 228, or only to the immediate area of the rip-rap. Given this, we cannot say the judge erred in determining the grant's language was ambiguous, uncertain, and susceptible to multiple interpretations.
2. Reasonableness analysis. Both parties claim the judge erred in determining the deed's language provided access over Lot 228 from either Lot 229 or the road, to the extent reasonably necessary to repair the rip-rap. The Hogans claim the judge erred by not determining the easement's purpose was to rectify catastrophic damage to the rip-rap and therefore required access to much—if not all—of Lot 228. In response, Gordon claims any ambiguity should limit the easement to the immediate rip-rap area based upon the deed's language and previous construction on Lot 229. Again, we disagree with both claims.
The judge, because the easement was ambiguous, could apply a standard of reasonableness to determine both the extent of use enjoyed by the Hogans' grant and Gordon's permissible uses of Lot 228. See Barchenski v. Pion, 9 Mass.App.Ct. 896, 897 (1980). As the judge determined, a reasonable interpretation of the Hogans' easement over Lot 228 would provide limited access over the lot to the area “reasonably necessary to repair the rip-rap.” This conclusion preserves the Hogans' right to enter the servient land-Lot 228–to perform the acts “reasonably necessary for such use and enjoyment” of the easement. Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711, 714 (1951). Given the evidence presented, the judge properly concluded that following the Hogans' interpretation of the deed's language would grant more access than is reasonably necessary, even in the instance where catastrophic failure of the rip-rap occurred. Nevertheless, the easement's use of the word “over” also supports the judge's finding that the Hogans enjoy some degree of access over Lot 228 and are not restricted simply to access to the rip-rap by means of the shore, as Gordon contends.
The Hogans attempted to shed light on the easement grantors' intent by offering an affidavit and an electronic mail message both authored by one MacNichol, Gordon's immediate predecessor in title. For substantially the reasons stated in the judge's written decision, there was no error in the exclusion of these materials.
If the grantors of the easements had contemplated complete access over Lots 228 and 229 for purposes of repairing catastrophic damage to the rip-rap, as the Hogans suggest, they could have been far more specific in the language of the grants themselves. Rather, the easements were intended to allow reasonable access to construction vehicles and other equipment from the road to the rip-rap without strict adherence to the designated property boundaries. The Hogans' easement does not vest in them a right to prohibit all improvements or structures from being erected on Lot 228.
This interpretation gives proper effect to both the language of the deed and the original purpose of the grant itself-access to the rip-rap for repair purposes. See Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179 (1998). Interpreting the size of the easement to encumber only the area required to accommodate construction vehicles and other repair necessities supports the Hogans' right to “use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude,” Restatement (Third) of Property (Servitudes) § 4.10 (2000), while preserving Gordon's ability to make improvements on his own property consistent with the just rights of the Hogans. See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 89–92 (2004) ( M.P.M.Builders ). This interpretation does not lessen the utility of the Hogans' easement by unreasonably increasing the difficulty or cost of repairing the rip-rap, nor does it frustrate the original purpose of repair by interfering with that right. See Restatement (Third) of Property (Servitudes) § 4.8(3) (2000). It allows the Hogans to access the northernmost edge of the rip-rap protecting their property in the course of repairs without prohibiting reasonable improvements to Gordon's property. See Lowell v. Piper, 31 Mass.App.Ct. 225, 229–230 (1991). The judge's reasonableness analysis was proper, and his findings of fact, which deserve our deference, were not clearly erroneous.
3. Location of the easement. In determining where to locate the easement so as to give effect both to the Hogans' right to access the rip-rap and Gordon's right to make beneficial use of his property, the judge relied on M.P.M. Builders to size the dimensions of the easement across Lot 228. The Hogans claim the judge clearly erred in so doing because M.P.M. Builders was factually distinct from the case at bar and is therefore inapplicable. While not challenging the judge's use of M.P.M. Builders, Gordon asserts this court should further narrow the easement from the current twenty feet to between ten and fourteen feet on his lot. We disagree with both claims.
Once the judge reasonably concluded the Hogans did not enjoy unfettered access across the whole of Lot 228, his use of the guiding principles set forth in M.P.M. Builders and § 4.8(3) of the Restatement (Third) of Property (Servitudes), supra, was proper to ensure Gordon's actions did not encumber the easement's original purpose. The Hogans claim the easement affords them upland access across Lot 228 from the road to the rip-rap, and the judge sought to ensure Gordon's location of the easement at the border between Lots 228 and 229 satisfied § 4.8(3) of the Restatement. The judge's determination located the easement from its previous unclear position on the upland portion of Lot 228 to a specific, defined area. Doing so embraced the Supreme Judicial Court's purpose in adopting the Restatement's test in § 4.8(3) by promoting Gordon's beneficial use of his property while preserving the Hogans' ease of access to the rip-rap (the easement's original purpose). The judge weighed significant expert testimony concerning the size of the space required for construction and repair vehicles to access the rip-rap, and determined the twenty-foot strip on Lot 228—coupled with the twenty feet mirroring it on Lot 229—was sufficient to ensure appropriate access to conduct repairs to the rip-rap from the road. We see no reason to set aside this judgment, given that forty feet of unfettered access does not appear to lessen the utility of the easement or increase the burden of use on the Hogans.
While Gordon could not use his property “in a way that would lead to a material increase in the cost or inconvenience to [the Hogans'] exercise of [their] rights,” Texon, Inc. v. Holyoke Mach. Co., 8 Mass.App.Ct. 363, 366 (1979), the easement similarly does not grant the Hogans “the power to veto other uses of [Gordon's property] that do not interfere” with the purposes of repair. M.P.M. Builders, 442 Mass. at 92.
Judgment affirmed.