Opinion
13-P-1208
12-08-2014
MARLYN G. HARMAN-ASHLEY REYNOLDS & others. v. BETH A. HYMAN, trustee, & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Each of the two defendants owns beachfront property in the Braddock Street neighborhood of Harwichport. Their parcels are not quite adjoining, because they are separated by a narrow corridor of land that serves as a right-of-way. For the sake of consistency, we shall refer to this corridor of land by the term the trial judge used, "the Private Way." The Private Way runs from Braddock Street to the private beach that lies between the defendants' homes and Nantucket Sound. The plaintiffs, who own inland parcels on Braddock Street, brought this action in Land Court to establish their rights to gain access to, and to use, the private beach. After a three-day bench trial, a judge ruled that three of the four sets of plaintiffs had deeded rights to use the Private Way to gain access to the beach, as well as rights to use the narrow portion of the beach that lies within the boundaries of the Private Way (e.g., for sunbathing and the like). The appeal before us is limited to the judge's ruling regarding the fourth set of plaintiffs, Marlyn G. Harman-Ashley Reynolds and Joan E. Harman-Ashley Huber (appellants), who together own property at 20 Braddock Street (Reynolds parcel). He concluded that while the appellants indeed held an express easement "to the beach," those rights were not to the private beach at issue, but to a public beach down the coast. Because we agree with the appellants' argument that the judge erred as a matter of law in interpreting the language of their express easement, we reverse.
At the same time, the judge ruled that these plaintiffs had no right to use the beach areas lying directly in front of the defendants' parcels (apart from those limited rights in the intertidal zone held by the public generally). Thus, the defendants prevailed in significant part. Neither side appealed that ruling.
Background. All of the parcels in question were once part of a large tract of undeveloped land owned by Braddock G. Phillips. The tract lay to the west of Bank Street, a north-south road that was at all relevant times a public way. In 1895, Braddock Phillips began to sell off individual pieces of the tract, and after he died in 1927, his children continued that practice over the ensuing decades. The net result was a development resembling a modern subdivision, with forty-three lots and an access road (Braddock Street) from which the interior lots radiated. However, unlike a modern subdivision, the development did not proceed from a written subdivision plan that simultaneously laid out the access road and proposed lots. Rather, the individual lots were parceled out on a more haphazard basis over many decades, and the means of accessing the lots evolved over time. In order to gain a full understanding of the context in which the relevant easement language arose, we must delve into the details of the relevant history.
We accept all of the facts found by the trial judge and supplement our discussion only with uncontested facts taken from the documentary evidence. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 769 (2001) (supplementing trial judge's findings "where appropriate with uncontested facts in evidence").
The land originally had been acquired by his father, also named Braddock G. Phillips.
The plaintiffs' expert witness, a surveyor, created a series of maps that documented how the individual pieces of the original tract were parceled out over time. For ease of reference, the lots were assigned numbers that corresponded with the order in which they were severed from the original tract. Thus, lot 1 (sold by Braddock Phillips in 1895) was the first lot sold, and lot 42 (sold by Braddock's son, Earle W. Phillips, in 1950) was the last one sold.
There are forty-three lots; lot 18 and lot 18A explain the discrepancy in the lot numbers.
By 1920, Braddock Phillips had sold only nine lots: four in 1895, two in 1907, and one each in 1910, 1912, and 1914. The parcels that Braddock Phillips first sold off were all in the southern portion of the original tract, that is, the area directly adjacent to, or at least in the vicinity of, the shore. Some of those lots fronted on Bank Street. Exactly how the owners of the first few interior lots initially gained access to their land was not fully developed at trial, although there are references in some of the relevant deeds to an east-west "woods road" in this area. By the 1920's, a short east-west road came to provide access from Bank Street to the southern portion of the tract, and that road later became known as Braddock Lane.
Based on the wording of deeds from that era, the judge found that the road that would become known as Braddock Lane was an established road by the 1920's. According to undisputed trial testimony and the surveyor's map, Braddock Lane was in a slightly different location than the old woods road.
In the 1920's, the development of the tract advanced in earnest, with Braddock Phillips selling fifteen additional lots before he died in 1927. Although some of these lots fronted on Bank Street (and therefore had no need to rely on access roads), increasingly, Braddock Phillips began to sell off interior lots, including some in the northern portion of the original tract. The deeds from this era began to make reference to a proposed unnamed road that would provide access to the northern interior portions of the original tract. The lots were laid out so that their boundaries left a corridor through which the access road could travel (in the words used by the trial judge, the lots were sold "referencing and bounding along the interior roads"). The corridor that was created through this process extended west from Bank Street and then turned due south. The north-south segment of that corridor extended all the way to the beach, and the final portion of that segment constitutes the Private Way now at issue.
Deeds from the 1920's reveal that the proposed access road was to extend to the beach. For example, a 1922 deed for an interior parcel (lot 17) that lies directly across the proposed access road from what later became the Reynolds parcel described the property as bounded "by a proposed road leading to the beach." Further, a 1926 deed for an interior lot (lot 24) that is due north of what became the Reynolds parcel provided the grantees express easement rights along the proposed access road all the way to the beach. Specifically, it provided the grantees an easement along a "private road to the shore, reaching the shore between land of one Smyser [defendant Hyman's predecessor-in-title] and the land of one Kroll [the defendant Van Iderstine's predecessor-in-title for one of the lots that now make up her property]." Thus, deeds from this era indicate that the proposed access road was to extend south to the beach including through what is now the Private Way. In addition, a 1936 map of the town's proposed water system shows the proposed road -- labeled as "Braddock Road" -- extending from Bank Street (first westerly and then southerly) all the way to Nantucket Sound.
The referenced deeds were admitted in evidence (and they were in fact cited by the trial judge in his decision). They are therefore part of the appellate record even though they were not included in the record appendix. We exercised our discretion to retrieve them from the trial court.
The judge found that the Private Way formally was created in 1925 when Braddock Phillips first sold a lot on its west side to Leila P. Smyser. Prior to 1925, Braddock Phillips retained all the land that lay to the west of the lots that formed what became the eastern border of the Private Way. However, even before the Private Way was created, an 1895 deed to one of those lots (lot 3, now part of defendant Van Iderstine's parcel), granted a right to cross Braddock Phillips's then remaining land to gain access to (and use) the private beach.
In 1937, Braddock's son, Earle Phillips, acquired his father's remaining property. That same year, he sold the Reynolds parcel (lot 27) to the appellants' predecessor in title (the grandfather of at least one of the appellants). This parcel is on the west side of the north-south segment of the proposed access road, at approximately its mid-point. The deed described the property as bounding "on the east by a proposed road known as Braddock Street." Thus, although the private access road now had a name, it was still characterized as "proposed." The deed also expressly granted the Reynold's predecessors in title "a right of way for vehicles over Braddock Street, so called, extending from Bank Street to the beach." It is the meaning of this language that is at issue in this case.
In the intervening decade, the property had been held by Braddock Phillips's daughter, Agnes Chase, as trustee under his will. Only three lots were sold during that period.
As the appellants point out, while the easement is phrased in terms of access for "vehicles," it does not state that it is "only" for vehicles. We therefore interpret the language of the deed as meaning "an easement for all purposes of ingress and egress common to a way." Deacy v. Berberian, 344 Mass. 321, 327 (1962). See Hodgkins v. Bianchini, 323 Mass. 169, 173 (1948) (concluding that language granting a right of way for a "cart road" did not restrict the use of the way, but rather the easement was "available for the reasonable uses to which the dominant estate may be devoted") (internal quotation omitted). Travel by foot is a reasonable use common to a way, and the defendants have not argued otherwise.
There was uncontested eyewitness testimony that as of the mid-1940's, the portion of Braddock Street north of the Reynolds parcel was merely a "rutted dirt road," and that the portion of Braddock Street south of that parcel was impassable to vehicles because of a sand dune there. Thus, according to that testimony, the portion of the north-south segment of Braddock Street that functioned as an actual passable road ended at the Reynolds parcel, and what continued southerly to the sea was merely a sandy path. The judge expressly credited such testimony and found that "the portion of the vertical section of Braddock Street below the Reynolds parcel was a sandy path [that] could not, in all likelihood, have supported travel by motor vehicle."
The fact that the way to the sea south of the Reynolds parcel in the mid-1940's remained impassable to motor vehicles of course does not mean that the proposed southerly extension of Braddock Street had been abandoned. A 1945 deed for a lot (lot 36) north of the Reynolds parcel indicates that it was not. That deed refers to the conveyed property as bounded by Braddock Street (no longer "proposed" Braddock Street) and it included an express easement along "a right of way to Nantucket Sound southerly over Braddock Street and its extension between land formerly of Charles Kroll and that of one Smyser." Thus, even as late as 1945, the north-south corridor that separated the defendants' parcels (including what is now the Private Way) was characterized as an "extension" of Braddock Street
Moreover, as is uncontested, Braddock Street subsequently was extended southerly, albeit not all the way to Nantucket Sound. As the judge found, the town formally laid out Braddock Street in 1951, and paved it in "the early 1950's." This involved not only paving the existing dirt road north of the Reynolds parcel, but also extending the road south of there through the area where there had been a sand dune (in the words of one eyewitness, "the town came in and . . . paved over the sand dune"). The town did not extend the north-south segment of Braddock Street all the way to the sea, but instead terminated it at its intersection with the east-west access road in the lower portion of the original tract that had by then become known as "Braddock Lane." Because the north-south segment of Braddock Street was never extended further south of that, the last portion of the contemplated "extension" of Braddock Street was never made accessible to vehicular traffic. That portion -- that is, the Private Way -- continued to be used only for foot traffic. What had been Braddock Lane became incorporated into Braddock Street, resulting in Braddock Street's current configuration, accurately described at trial as "C-shaped."
Appellant Marlyn G. Harman-Ashley Reynolds testified that after her grandfather died in 1947, her grandmother requested that the town install a streetlight on Braddock Street, which at that point remained a private way. According to her, the town agreed to do this but only if it took over Braddock Street as a public way.
Through a posttrial motion, the plaintiffs sought to show that the Private Way was used for nonmotorized "vehicles," such as beach carts. Because evidence of such uses was not timely presented, we place no reliance on it.
Discussion. As noted, this case turns on the meaning of the words used in the 1937 deed that granted the Reynolds's predecessors in title an express easement "to the beach." Although the language itself provides the primary source of a grantor's intent, courts may examine that language "in the light of the circumstances attending [the instrument's] execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990), quoting from Perodeau v. O'Connor, 336 Mass. 472, 474 (1957).
The judge interpreted the easement language as "confer[ring] an easement allowing vehicles to pass and re-pass over Braddock Street to Bank Street, then turning southerly to access the public beach and parking area situated at the end of Bank Street." This is an unnatural reading of the deed's language. The grantor, Earle Phillips, had no authority to grant any easement over Bank Street because it is uncontested that Bank Street was at all relevant times a public way. Similarly, the grantees had no need for deeded access to the beach at Bank Street; they had rights to travel along Bank Street and to use the beach there as members of the public. In addition, the easement language is not phrased in terms of extending "over" Bank Street; instead, it describes the easement as one "over" Braddock Street "extending from Bank Street to the beach." The natural reading of this language is that the easement extended along Braddock Street from its beginning at Bank Street to a southern terminus at the beach.
The judge rejected this natural reading principally because when the deed was granted, Braddock Street in fact ended at the Reynolds parcel, and the corridor that continued south to the private beach was impassable to motor vehicles. He reasoned that in providing vehicular access "to the beach," the grantor must have had in mind the public beach at the end of Bank Street, as this was the only beach actually accessible to motor vehicles at the time. The flaw in this reasoning is that it fails to take into account the evolving nature of Braddock Street over time (as revealed by facts that are not in dispute). The key question is not whether Braddock Street in fact could have been used for vehicular access all the way to the private beach in 1937, but what the grantor's and grantees' contemporaneous understanding was with regard to the future of that road.
As noted, in the 1937 deed, Braddock Street was still characterized only as "proposed," and deeds that were issued both before and after 1937 reflect an understanding that Braddock Street was to be extended southerly to Nantucket Sound. That the relevant actors understood in 1937 that Braddock Street was going to be extended to the south gains significant support from the almost exactly contemporaneous 1936 town water system plan. Finally, consistent with that understanding, Braddock Street was in fact extended southerly toward the beach in 1951 (despite the obstacles posed by the sand dune there). The fact that the town eventually stopped short of paving the road all the way to the beach is of no moment. In sum, far from contradicting the natural reading of the deed's language, the historical context strongly reinforces that reading.
In fairness to the trial judge, we note that the plaintiffs could have done a better job marshaling the trial evidence to prove their point.
The judge also found support for his interpretation by contrasting the language of the 1937 deed with the language included in the deeds applicable to the three other sets of plaintiffs (which the judge concluded established an express easement along the Private Way). A close comparison fails to yield any inconsistency. One example will suffice. To establish her easement to the private beach, plaintiff Cornelia P. Carroll relied on a 1950 deed to her predecessor in title. The lot in question (lot 42) lies at the northwest corner of Braddock Street, that is, the point where the north-south segment and upper east-west segment of that street meet. This deed granted "a right of way over Braddock Street, easterly, to Lower Bank Street, and southerly over Braddock Street to the beach." The judge read this deed as granting "two distinct easements," the first comparable to the one in the 1937 deed to the Reynolds parcel, and the second "run[ning] southerly over Braddock Street to the private beach at the end of the Way." In this manner, the 1950 deed chose to describe the grantee's rights by reference to two component pieces: one right-of-way extending from lot 42 along Braddock Street in one direction to Bank Street, and a second right of way extending from lot 42 along Braddock Street in the other direction to the beach. However, when these constituent parts are considered together, the net effect is exactly the same as that of the 1937 deed to the Reynolds parcel: an easement running along the entirety of Braddock Street extending from Bank Street to the beach. Thus, the somewhat different language used in the two deeds lies in easy harmony.
In fact, the manner in which the judge interpreted the 1950 deed to lot 42 affirmatively supports the appellants' argument. The judge interpreted that easement as providing access to the private beach even though Braddock Street at that time ended at the Reynolds parcel (and -- even after it subsequently was extended -- never reached all the way to the beach). The judge reasoned that although the easement was phrased as providing access "over Braddock Street to the beach," it must also have conveyed a right of way over the path to the beach, because the path was "the most direct route to 'the beach' when traveling south on Braddock Street" That same logic applies to the 1937 deed to the Reynolds parcel.
Conclusion. For the reasons set forth above, we vacate the judgment to the extent that it states "that the plaintiffs Reynolds and Huber are possessed of no rights, whether by easement or otherwise, over the Private Way at issue," and we remand for entry of a new judgment that provides the appellants the same relief as was provided the other plaintiffs. We have no occasion to resolve the additional issues that the appellants have sought to raise.
The appellants have abandoned any argument that they have a right (separate from those limited rights retained by the general public) to use the areas of the private beach that lie directly in front of the defendants' properties. Conversely, the defendants have not argued that even if the appellants have a right to access the beach, they may not otherwise use the narrow portion of the beach that lies within the Private Way's boundaries. This is consistent with the decision the defendants made not to appeal the judgment as it applied to the other three sets of plaintiffs. In addition, we note that the judge specifically found that "the use of the beach portion within the bounds of the private way is not disputed by the parties."
Among many other arguments, the appellants contend that the defendants themselves hold only an easement in the Private Way and that only the owner of the fee in the Private Way could have standing to contest whether the plaintiffs also held an easement. It is uncontested (as a result of earlier litigation) that defendant Hyman does not own any fee interest in the Private Way, but the judge otherwise did not resolve who held that interest among various potential claimants. Nor did the judge address the plaintiffs' standing arguments, which were raised prior to trial (albeit quite late in the litigation). We need not resolve such standing issues, because doing so would not change the result. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 (2013), citing Boston Gas Co. v. Department of Pub. Utils., 368 Mass. 780, 805 (1975). However, we do note that a resolution of the basic question of which party holds the underlying fee to the Private Way has obvious potential consequences for whether one could obtain the right to use it independent of any deeded access rights. In other words, the resolution of the current appeal may actually be of little practical consequence.
So ordered.
By the Court (Kafker, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 8, 2014.