Opinion
21-P-876
07-22-2022
MARC LINDENBAUM & another[1] v. MIGUEL PEREZ & another.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs own property in Everett comprised of four lots, identified as lots 91B, 92B, 95A, and B. In 2018 the plaintiffs filed a complaint for a declaration that the lots have the benefit of two five-foot wide, adjacent easements over neighboring properties, identified as lots 91A and 92A, which are separately owned by the defendants.After a bench trial, a judge of the Land Court concluded that, while lots 91B and 92B have the benefit of the easements, the plaintiffs failed to prove that the scope of the easements extended to vehicular use. The judge also concluded that using the easements to access lot 95A or lot B would constitute overloading of the easements. The plaintiffs appeal, challenging both rulings. We affirm.
Jean Pacheco, who owns lot 91A, did not defend the claims against him or participate in this appeal.
Background.
The plaintiffs purchased their lots in 2013. Lots 91B and 92B abut the defendants' properties, lots 91A and 92A, to the north. Lots 95A and B are farther north and do not touch the defendants' properties at any point.
A multifamily home is located on lot B; lots 91B, 92B, and 95A, which are paved with bitumen, are located behind the home and are large enough to park several vehicles. All four lots would be landlocked if not for a series of passageways: a right of way, thirteen and a half feet wide, extending west from lot B to Francis Street; a five-foot wide passageway extending east from lot 95A to Maiden Street; and the two five-foot wide, adjacent passageways that are the subject of this case. These two passageways extend south from lots 91B and 92B along the shared border between lots 91A and 92A (on the eastern side of lot 91A and the western side of 92A) to Union Street.
Lot 92B has additional access to Union Street via a three-foot wide passageway extending south along the eastern border of Lot 92A.
The properties in question have a long history, which the judge detailed in her findings. That history includes a 1927 decision from the Supreme Judicial Court recognizing that the then-owners of lots 91B and 92B had an express easement over the five-foot wide passageway bordering lot 92A. See Dubinsky v. Cama, 261 Mass. 47 (1927) . The judge concluded, and it is uncontested on appeal, that reasonable purchasers would be on notice of the express easement burdening lot 92A, as well as the adjacent easement burdening lot 91A, and that the easements had not been extinguished. In further concluding that the easements were not intended for vehicular traffic and could not be used to access lot 95A or lot B, the judge made findings about the historical use of the properties, which we reserve for discussion below.
The passageway bordering lot 91A was not at issue in Dubinsky. See Dubinsky, 261 Mass. at 55.
Discussion.
1. Scope of the easements.
The burden was on the plaintiffs, as the parties asserting the easements, to prove the nature and extent of the easements. See Hamouda v. Harris, 66 Mass.App.Ct. 22, 24 n.l (2006); Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). Determining the intended use of an express easement depends foremost on the language of the grant, which "must be construed with reference to all its terms and the then existing conditions so far as they are illuminating." Mugar v. Massachusetts Bay Transp. Auth., 28 Mass.App.Ct. 443, 444 (1990), quoting J.S. Lang Eng'g Co. v. Wilkins Potter Press, 246 Mass. 529, 532 (1923) . See Boudreau, supra, quoting Perodeau v. 0'Connor, 336 Mass. 472, 474 (1957) (to ascertain scope of easement, court looks to "presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable"). The use of the easement "must be consistent with what the parties reasonably anticipated at the time of the establishment of the way." Bedford v. Cerasuolo, 62 Mass.App.Ct. 73, 82 (2004) .
Here, the judge implicitly concluded, and the plaintiffs acknowledge, that the language of the grants creating the easements is not determinative. The judge thus looked to the attendant circumstances and determined that there was no evidence that the easements were intended for vehicular use. As the judge found, when lots 91A and 92A were created by separate subdivisions in 1900, the subdivision plan for each lot depicted a five-foot wide passageway benefiting that lot. Likewise, a compilation plan recorded in 1901 depicted separate, five-foot wide passageways. After noting that the appearance of the passageways on these plans was consistent with the description in the Dubinsky opinion, issued some two decades later, the judge observed that "[n]o evidence of vehicular use was apparent" from the opinion. Rather, the master in Dubinsky found, based on the layout of the land and buildings, that "the owners did not know of, or disregarded, the existence of the passageways" and "fenced in their particular lots without regard to any passageway rights." Dubinsky, 261 Mass. at 53. In addition, the master "reported a chicken coop on [l]ot 92B, not a vehicle or vehicles."
This finding is contained in the master's report, which was admitted as an exhibit at trial.
The judge also considered more recent history and concluded that "[e]vidence that the passageways were actually used to access [l]ots 91B and 92B was scant." Steven Meninger -- who owned lot 91A for seventeen years after purchasing it from his father -- testified that, since at least 1974, a chain link fence ran around the back and side of the property and he "never saw the . . . fence opened or observed the easements being used to access lots 91B and 92B." Similarly, Hector Gomez -- who owned all four of the plaintiffs' lots from 2001 to 2006 and owned a neighboring lot at the time of trial -- testified that he never observed anyone use the easements, either by foot or vehicle, to travel from lot 91B or lot 92B to Union Street. Furthermore, after taking a view of the properties, the judge determined that the physical characteristics of the land are inconsistent with use of the easements by vehicle. Among other things the judge found that neither of the five-foot wide easements is large enough to accommodate vehicular travel, that lots 91B and 92B were only recently paved with bitumen and not used for parking, and that, ten to twelve feet before the easements reach lots 91B and 92B, "the paving stops and patchy grass and soil appear."
These findings, taken together, support the judge's conclusion that the easements were never used, and were not intended to be used, for vehicular travel. Although the plaintiffs argue that vehicular travel is a reasonably foreseeable use because the lots were largely undeveloped when conveyed in 1901, the judge found that the plaintiffs -- who had the burden of proof -- "presented little, if any, evidence as to the scope or usage of the passageways across [l]ots 91A and 92A in recent history" and no evidence of vehicular use. The plaintiffs do not challenge any of the judge's factual findings as clearly erroneous, see Brandao v. DoCanto, 80 Mass.App.Ct. 151, 154 (2011), and we see no basis to disturb her ultimate conclusion that the plaintiffs failed to meet "their burden of establishing that the passageway easements were ever intended or used for vehicular access."
To the extent the plaintiffs argue that the judge's decision is inconsistent with Dubinsky, we disagree. Dubinsky did not involve any question about the scope of the easements and, as the judge noted, the opinion is devoid of any mention of vehicles. The statement in Dubinsky on which the plaintiffs rely -- that the two easements "were designed to be used as a single way ten feet in width," 261 Mass. at 55 -- arose in the context of determining which lots benefited from the easements.The court did not consider the nature and extent of the easements, and we see nothing in the opinion that undermines the judge's resolution of that question based on the evidence before her at trial.
Specifically, the court was addressing whether the passageway on the western border of lot 92A could be used to access lot 91B, even though that passageway "considered by itself alone, touche[d] lot 91B only at a point." Dubinsky, 261 Mass. at 54. The court expressly stated that it was "mak[ing] no determination concerning the right of way on lot 91A" and recognized the possibility that intervening circumstances could "destroy the right of the [owners of the dominant estates] to use the way over lot 91A." I_d. at 55.
2. Overloading.
Overloading occurs when an easement "is used to serve land other than the land to which it is appurtenant." Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 685 n.ll (2016), quoting Southwick v. Planning Bd. of Plymouth, 65 Mass.App.Ct. 315, 319 n.12 (2005). Put another way, "[a] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-679 (1965). See Taylor, supra at 686.
Here, the evidence supports the judge's determination that only lots 91B and 92B are appurtenant to the easements. As the judge found, the subdivision plans recorded in 1900 do not "indicate[] any intent or purpose [for the easements] other than to permit passage from Union Street ... to the rear or interior lot," i.e., lot 91B and lot 92B, respectively. The subdivision plans and the 1901 compilation plan all depict the easements as terminating when they reach lots 91B and 92B, and the plaintiffs presented no evidence establishing that the easements were intended to benefit any other lots. We therefore agree with the judge that use of the easements to access lot 95A or lot B would constitute overloading as a matter of law. See Taylor, 475 Mass. at 686.
We reject the plaintiffs' contention that lot 95A is appurtenant to the easements because it was "deeded out together" with lots 91B and 92B in 1901. The plaintiffs cite no authority supporting the proposition that conveyance by the same deed transformed lot 95A into part of the dominant estate. Furthermore, it is undisputed that lots 91B, 92B, and 95A were created by subdivision on different dates in 1900 before the conveyance, and easements were separately created during each subdivision to prevent the lots from being landlocked. With regard to lot 95A, the subdivision plan depicts a five-foot wide easement extending east from the lot to a public way. The plaintiffs presented no evidence that the easements separately created to benefit lots 91B and 92B were also intended to benefit lot 95A.
As to lot B, the plaintiffs rightly concede that, as an after-acquired property, it "may not be added to the dominant estate . . . without the express consent of the owner of the servient estate" (quotations and citation omitted). McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 364 (1996). Nonetheless, the plaintiffs contend that use of the easements to access lot B would not constitute overloading because the manner and frequency of the use would not unfairly burden the servient estate. But in Taylor, 475 Mass. at 686-691, the Supreme Judicial Court declined to adopt a fact-based test for determining the question of overloading. Instead, the court reaffirmed the bright-line rule articulated in Murphy, 348 Mass. at 678-679, prohibiting the use of an easement to benefit an estate to which the easement is not appurtenant. See Taylor, supra at 691. We have no authority to depart from Taylor.
Judgment affirmed.
The panelists are listed in order of seniority.