Opinion
15-P-519
03-16-2016
ANA FLORIAN v. LIBBY COOPER & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a bench trial, a judge found that defendants Libby, Joanne, and Susan Cooper, the current owners of 20 Westgate Road in Newton, held easement rights over a portion of plaintiff Ana Florian's property at 57 Clifton Road in Newton. On appeal, Florian claims the judge erred in finding that the Coopers reserved the easement by deed and, to the extent they had not, obtained adverse rights to the disputed area via prescriptive easement. Furthermore, Florian asserts that, even if the Coopers had an easement, the judge improperly granted exclusive use rights to the Coopers. We affirm the amended judgment in part, but vacate so much of the amended judgment ordering that the Coopers have the right to exclusive use and occupancy of the entire easement area.
According to the judge's findings of fact, Agustin Florian, who was originally named as a plaintiff, no longer had any interest in the property at issue since May, 2012.
1. Deeded easement. Florian asserts the judge erred in finding the Coopers' deeded easement rights valid and enforceable. More specifically, she claims the deeded easement is a nullity in violation of the "stranger to the deed" doctrine. Under this doctrine, an easement "cannot be imposed by deed in favor of one who is a stranger [third-party] to it." Hodgkins v. Bianchini, 323 Mass. 169, 172 (1948), quoting from Hazen v. Mathews, 184 Mass. 388, 393 (1903). Because Florian raises this issue for the first time on appeal, we determine that it is waived. See Green v. Brookline, 53 Mass. App. Ct. 120, 128 (2001). While Florian maintains that the record indicates both the judge and the parties considered the spirit of the doctrine despite not referring to it by name, the record reveals that Florian asserted only that the Coopers' easement was invalid and not successfully created by an express grant. In fact, much of her argument refers not to the essential thrust of the rule, but to the Coopers' alleged unilateral mistake in the easement's creation. The judge's findings of fact discussing the deeded easement's validity properly contemplate and resolve these claims, not stranger to the deed issues in an elusive form.
Florian also claims that to the extent the Coopers have a valid easement, they abandoned it once they ceased using the area as a driveway. Because the Coopers' mortgage described the easement as a right of way, Florian suggests that by removing the driveway, the Coopers abandoned the easement, and affirmatively indicated their intention to never use it again. See Sindler v. William M. Bailey Co., 348 Mass. 589, 592 (1965). We disagree. "Whether there has been an abandonment of an easement is a question of intention to be ascertained from the surrounding circumstances and the conduct of the parties." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009). Here, the judge found that the Coopers continued to use the easement partially as a driveway, with the remainder reserved for recreational use. Although they removed most, but not all, of the driveway within the disputed easement area to expand their lawn, this conduct alone does not sufficiently manifest an intention to abandon the easement. Contrast Lasell College v. Leonard, 32 Mass. App. Ct. 383, 388 (1992) (easement abandoned due to long term nonuse, acquiescence to adverse use by others, and construction of fence by dominant owners separating dominant estate from easement); Fontanella, supra at 158-160 (easement abandoned due to nonuse of the way and acquiescence to fence blocking access and to use of area as a lawn). Furthermore, where, as here, an easement arises by grant whose terms do not limit its scope, the easement "is available for the reasonable uses to which the dominant estate may be devoted." Parsons v. New York, N.H. & H.R.R., 216 Mass. 269, 273 (1913). Accordingly, the Coopers possess a valid deeded easement that they have not abandoned.
2. Prescriptive easement. Because we affirm the judge's finding that the Coopers have a valid deeded easement, we need not assess the Coopers' prescriptive rights to the same area. To the extent the Coopers have a deeded easement, the judge accurately noted "they may not have a duplicative easement by prescription, because any use of 57 Clifton Road pursuant to an express easement would not be adverse to the rights of the owners of 57 Clifton Road."
In any event, the Coopers would have had prescriptive rights to the disputed area were the deeded easement invalid. A prescriptive easement requires "the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty years." White v. Hartigan, 464 Mass. 400, 413 (2013). In this case, the Coopers made open, notorious, and adverse use of the land in the disputed area for over fifty years. For example, they permanently improved the land by leveling it for use as a driveway, planted a line of hemlock trees as a border, and publicly used the area for social gatherings without seeking or obtaining permission from the Florians or their predecessors. See LaChance v. First Natl. Bank & Trust Co. of Greenfield, 301 Mass. 488, 490-491 (1938); Jones v. Gingras, 3 Mass. App. Ct. 393, 398 (1975). The Coopers therefore demonstrated sufficient use of the disputed area that would establish a prescriptive easement had they held an invalid deeded easement. We also note that, as discussed above, the Coopers did not sufficiently manifest their intention to abandon the easement regardless of whether it is deeded or prescriptive in nature. Despite the change in removing most of the driveway, the Coopers nonetheless continued to use the area as a driveway turnaround and for recreation as they had throughout the prescriptive period. See Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (1990).
The judge also considered the Coopers' prescriptive easement argument as a permissible alternative theory and defense entitling them to rights over the disputed area if they unsuccessfully asserted their deeded easement claim.
Florian also claims that the judge improperly recognized prescriptive easement rights extending beyond the original triangular deeded easement and to the line of hemlock trees the Coopers planted in 1953. We disagree. In a postjudgment order, which resulted in the judgment being amended, the judge noted he was under the incorrect impression that the deeded easement "triangular area" and the line of hemlocks were one and the same and "mistakenly directed that final judgment be entered defining the Defendants' easement area solely by reference to the triangle now marked by the iron rods, without taking into account the additional easement area between the triangular easement area and the line of hemlocks or hemlock stumps" (emphasis added). Because this misunderstanding undoubtedly informed the judge's findings of fact, his findings on the Coopers' adverse use -- which, as discussed, would be sufficient to support prescriptive easement rights -- include this additional disputed prescriptive, but not deeded, area.
As discussed above, we need not address Florian's claims that the Coopers have not successfully established prescriptive rights in the areas for which we determined they hold a valid deeded easement. We also reject the Coopers' contention that Florian waived her right to define and analyze specific portions of the easement area separately. Not only does Florian raise the same arguments below with regard to prescriptive and deeded rights for the easement area as a whole, but in opposing the Coopers' motion to clarify the judgment, she specifically addresses the prescriptive rights to the line of hemlock trees separate from the deeded easement area.
There is no transcript of the trial due to a malfunction of the recording system. The parties therefore agreed that the judge's findings of fact and exhibits at trial constitute the record.
We also reject Florian's claim that the Coopers' motion to clarify the judgment is procedurally deficient. Not only did Florian consider the easement area indefinite and undefined herself, but also the judge specifically noted his misunderstanding regarding the actual boundaries of the easement area. Given the confusion in defining the easement area, the record does not suggest that the Coopers disingenuously sought more or new rights, nor was their motion to clarify an untimely, disguised motion to amend the judgment.
3. Exclusive rights. Florian argues as a final matter that the judge erred in granting exclusive use and occupancy of the easement to the Coopers. We agree. Because easement rights, unlike adversely possessed land, are not necessarily exclusive, "exclusive easements should be clearly expressed." Butler v. Haley Greystone Corp., 352 Mass. 252, 258 (1967). See Boothroyd v Bogartz, 68 Mass. App. Ct. 40, 44 n.9 (2007). Where not clearly expressed, the servient estate holder generally retains rights to use the land that do not "unreasonably interfere with exercise of the rights granted by the servitude." Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014), quoting from Restatement (Third) of Property (Servitudes) § 1.2 comment (d) (2000). Nothing in the record indicates that the deed here reserved exclusive rights for the Coopers.
Moreover, we are not convinced that any of the Coopers' prescriptive easement rights allow for their exclusive use of the easement area. Just as the Coopers may not possess both deeded and prescriptive easement rights for the same area, they also may not rely on a deeded easement that is silent on exclusive rights and simultaneously assert supplementary prescriptive rights to support their exclusive use of the easement. Furthermore, although the judge allowed for the Coopers to "continue their historic use of the disputed area," as is permitted for prescriptive easements, nothing in the record indicates that the Coopers' use is to be to the explicit exclusion of Florian. See Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (1990). The judge's finding that the Coopers have exclusive rights to the easement was, therefore, in error.
So much of the amended judgment that orders that the Coopers have the right to exclusive use and occupancy of the entire easement area is vacated. In all other respects the amended judgment is affirmed.
So ordered.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 16, 2016.