Opinion
No. 11–P–1173.
2012-06-14
Sharon BATES, trustee v. Robert L. McCARTHY, trustee, & others.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff argues that there are genuine issues of material fact that should have precluded the issuance of summary judgment by the Land Court judge, who ruled that the defendants had an easement by estoppel over the full length of Nelson Avenue (renamed Sea Breeze Avenue) in Fairhaven. As the plaintiff acknowledges on appeal, the question at issue in this case is the intention of the grantor to create an easement over the disputed piece of land. See Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725, 727 (1971). However, none of the facts that she alleges to be in genuine dispute relates to that question. There is no evidence that the grantor did not intend to have the parties use the way depicted on the 1939 plan. The expert's affidavit and the historical photographs, the oldest of which dates from 1971, relate to the condition of the right of way long after the date of the 1939 plan; the facts with respect to which they may indicate disputes are not material. See Mass.R.Civ.P. 56, 365 Mass. 824 (1974).
Judgment affirmed.
Of the Ruth Street Realty Trust.