Opinion
No. 15–P–1103.
01-06-2017
Richard HALVARSON & others v. Brenda TELEEN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Brenda Teleen and Andrea Knox Kuehn appeal from a judgment declaring that the express easements appurtenant to their properties over the property of plaintiffs, Gene and Bonnie Willey, have been extinguished by adverse possession. Because we conclude that the plaintiffs' predecessors' conduct was insufficient to extinguish the easements, we reverse.
Background. All of the land relevant to this litigation is located in West Dennis, some of it fronting on the Bass River. It was acquired over time by Herbert Chase, who subdivided and conveyed it out between 1951 and 1973. Chase recorded plans for some or all of the property in 1951, 1955, and 1956. The 1951 plan showed twelve lots, four of them, lots 1–4, fronting southerly on the Bass River and its beach and northerly on Captain Donald Path. On the western end of the plan, a twenty-foot wide strip of land labeled "FOOT PATH" (footpath) intersected with Captain Donald Path and led southerly to the beach. On the eastern end, the plan showed Captain Donald Path turning and continuing in a southerly direction to the beach. The 1955 plan shows additional Chase property with 150 feet of frontage on the Bass River just east of the property shown on the 1951 plan.
So far as the record reveals, only lots 2, 3, and a portion of lot 4 were sold pursuant to the 1951 Plan and they are not at issue on this appeal.
The 1956 plan includes and reconfigures the property shown on the 1951 plan and also includes the southern portion of the property shown on the 1955 plan. On the 1956 plan, Chase eliminated the footpath to the beach on the western end of the property and easterly, he eliminated the continuation of Captain Donald Path to the beach and added that land to lot 1. He created a new footpath to the beach between lot 1 as shown on the 1956 plan and an unnumbered lot east of lot 1, derived from property shown on the 1955 plan. The width of the new footpath is not expressly stated on the plan and the judge concluded the width was indeterminate and no more than ten-feet wide. The width of the footpath, as shown on the 1956 plan is equivalent to the width of Stephen Lane, which is shown on the plan as thirty feet wide. The 1956 plan contains a scale and subsequent plans, one created on behalf of the plaintiffs' predecessor, and one created on behalf of the defendants, show the footpath as thirty feet wide.
The 1956 plan also reconfigured the nonwaterfront lots into six lots. With the exception of the deed to lots 10 and 12, the original deeds of the nonwaterfront lots at issue included an express right of way over the footpath on the 1956 plan. Lots 9 and 11 originally abutted each other along lot 9's northern boundary and lot 11's southern boundary. They since have been combined and resubdivided in a north-south direction such that the two newly created lots abut on their eastern-western boundaries. Following the resubdivision, the lots were conveyed without reference to the express easement over the footpath. Defendant Teleen owns the western halves of the original lots 9 and 11. The judge concluded that because the lot owned by Teleen is not the same lot as originally conveyed by Chase with an express easement over the footpath, G.L. c. 183, § 15, does not apply and Teleen has no easement over the footpath.
Lots 5 and 6 were combined into one lot, and lots 7 and 8 were combined into one lot. The other inland lots were numbered 9, 10, 11, and 12.
Keuhn owns lot 7/8 (one lot), and lots 10 and 12, all of which abut one another from south to north. The judge concluded lot 7/8 enjoys an express easement over the footpath but lots 10 and 12 do not. The Willeys, who bought the property from Richard Halvarson in 2001, own the unnumbered lot to the east of lot 1 as shown on the 1956 plan. The footpath is on part of their property and is the focus of this litigation.
Halvarson filed the complaint for declaratory judgment regarding the footpath in 2009. The defendants' motion to compel joinder of the Willeys in 2012 was allowed. The plaintiffs rely on the conduct of the original grantees of their property, the Bullards, to support their claim that the defendants' express easements have been extinguished by adverse possession. The Bullards owned the property from 1973 until Miriam Bullard's death in 2006. There was evidence that Miriam Bullard believed her western boundary should have included some of lot 1 and she expressed that strong belief to friends. Her neighbor, one of the beneficiaries of her will, testified that Miriam did not believe there was a footpath on her land. His and other friends' testimony, however, did not reveal the specifics of any discussion she had with them regarding the footpath and she did not tell them she prevented people, verbally or otherwise, from using the footpath. There was no testimony of anyone having observed her prohibiting access over the footpath.
When Chase first conveyed the unnumbered lot to the plaintiffs' predecessors, siblings Henry, Thelma, and Miriam Bullard (Bullards), he did so with reference to the 1955 plan. The 1955 plan preceded the 1956 restructuring of the property shown on the 1951 plan and did not show that the footpath had been shifted onto the property shown on the 1955 plan and conveyed to the Bullards. In addition, the deed to the Bullards made no mention of the footpath. In January, 1976, the Bullards commenced an action in Superior Court asserting that Chase had encumbered their property by granting rights in the footpath to purchasers of lots in the 1956 plan, but had never revealed the same to the Bullards prior to their purchase. The transcript indicates the case subsequently was dismissed, but the grounds for dismissal are not contained in the record.
The trial judge credited testimony that by 1983 and for a period of at least twenty years, vegetation created a "natural fence" across a width of at least the first ten feet of the Bullard's boundary with lot 1 and for the first thirty feet of the length of the path. There was no admitted evidence that the Bullards planted the shrubs. If the footpath is thirty feet wide, it includes a portion of the driveway and there was no evidence that the driveway was ever blocked.
There were some "No Trespassing" signs on the property. The judge rejected the defendants' testimony that they used the footpath over the years from time to time. Indeed, a 2007 plan of the property reflects that there was "no visible path observed at time of survey" in the area of the footpath.
Following Miriam's death, the defendants asserted their alleged rights to use the footpath and this litigation ensued. Keuhn testified that the neighbors did not "want to do anything when [Miriam] was alive to upset her as she was elderly and introverted." Keuhn further testified she and her neighbors decided after Miriam's death that they should establish a definite plan of the footpath before the property was sold.
Discussion. 1. Defendants' deeded rights. The judge concluded that defendant Teleen's property does not enjoy an easement over the footpath even though it is comprised of half of lot 9 and half of lot 11, the entirety of both of which were originally conveyed with an express easement over the foot path. Because the newly created lots are not the same as the prior lots, the judge concluded G.L. c. 183, § 15, does not apply to carry them forward. We disagree. Even if not so stated in the deed, an easement remains appurtenant to a whole lot and "to any part into which it is later subdivided unless some additional burden would thereby be placed on the servient estate." Rice v. Vineyard Grove Co., 270 Mass. 81, 86 (1930). No argument has been made that the reconfiguration of the lots here caused a greater, unreasonable burden on the servient estate. Nor could there be an additional burden where the same property was divided into the same number of lots (two) but simply configured differently. We conclude that Teleen's property has a deeded easement over the footpath.
The judge found, and we agree, that defendant Keuhn enjoys an express easement over the footpath to the beach for the benefit of lot 7/8. Lots 10 and 12 were conveyed with express easements over two of the ways on the plan but not over the footpath and Kuehn makes no argument on appeal that she is entitled to an easement for the benefit of lots 10 and 12.
2. Width of the footpath. The judge found that the footpath shown on the 1956 plan is of "undetermined width" and concluded that the footpath was no greater than ten feet along the lot's border with lot 1 shown on the 1956 plan. This finding was clearly erroneous. Although the 1956 plan does not state the width of the foot path, the plan designates the path with clear, solid lines and provides an applicable scale that is easily measured to show that the footpath is thirty feet in width. We discern no basis for the judge's conclusion that the plan does not appear to be drawn to the scale provided.
In addition, we note that subsequent plans show it to be thirty feet wide.
Extinguishment of easement over the footpath. The trial judge concluded that beginning in the early 1980s, if not earlier, Miriam Bullard either planted or allowed the growth of obstructive vegetation and posted "No Trespass" and "Private Property" signs affirming her intention to prevent passage over what she viewed as a fraudulent footpath. The trial judge found she made her position known to friends, neighbors, and the Superior Court, and that she openly excluded people from using the footpath. On these findings and limiting the easement to the first ten feet of the lot's western boundary, the judge concluded Miriam had extinguished the defendants' easements by adverse possession.
It is well settled that mere "nonuse [of an easement], no matter how long continued, will not work an abandonment." Desotell v. Szczygiel, 338 Mass. 153, 158–159 (1958). Similarly, nonuse combined with failure to clear natural trees and brush for longer than the prescription period will not work an abandonment of an easement. See ibid. To extinguish an easement by adverse possession, the Willeys had to prove that their predecessor (Miriam) occupied the land in a manner "irreconcilable with its use as a [foot path], openly, notoriously, adversely, and without interruption for more than twenty years." Brennan v. DeCosta, 24 Mass.App.Ct. 968, 969 (1987). The servient estate's use must be inconsistent with the easement or allowable only if no easement existed. See Shapiro v. Burton, 23 Mass.App.Ct. 327, 330 (1987). See also Lemieux v. Rex Leather Finishing Corp., 7 Mass.App.Ct. 417, 421–422 (1979). The mere existence of trees and brush in the right of way "cannot be said to constitute an adverse use by the servient tenant, in the absence of a showing that the servient tenant planted the trees and brush on the right of way." Desotell, supra at 159.
Here, there was no admissible evidence that the Bullards planted the shrubs and other vegetation that grew to the west of the driveway. Moreover, access was still available over the portion of the driveway that was included in the width of the footpath, and there was no evidence it was ever blocked. The no trespassing signs on the property gave no notice to holders of an easement with legal rights to use the footpath that the signs applied to them.
In addition, contrary to the judge's conclusions, not one witness testified to observing Miriam verbally prevent anyone from using the footpath or even discuss a desire to block the footpath or otherwise prevent foot traffic on it. Indeed, Mr. Churbuck, who was gifted a fifty percent interest in her property in her will, testified that Miriam Bullard never mentioned the footpath. Mr. Brennan, who, along with his wife, inherited the other fifty percent of Miriam's property, testified that although she discussed that she disputed her property line, she never said whether she allowed or prevented use of the footpath. Contrary to the judge's suggestion that Miriam shared her intention or desire to block the footpath with the Superior Court, the 1976 complaint against Chase, see note 5, supra, focused on the amount of property Chase had conveyed to the Bullards and Chase's failure to inform them of the footpath encumbering their property. The complaint did not seek to join any easement holders to contest the validity of their easements. There was no showing that the litigation put any of the defendants or their predecessors on notice that the Bullards challenged the validity of their easement or intended to block it. Miriam's strongly held beliefs that she had been misled when she and her siblings purchased the property, beliefs so far as the record reveals were never shared with the defendants, are not the type of open and notorious conduct that gives rise to extinguishment of an easement by adverse possession.
Finally, we have considered whether the timing of the defendants' decision to exercise their rights and Keuhn's admission that due to respect for Miriam's age they had refrained from surveying the property during Miriam Bullard's lifetime support the inference that the neighbors in fact refrained from using the footpath because Miriam had somehow prohibited them from using it. Our cases make clear, however, that nonuse must be coupled with " ‘acts by the owner of the dominant estate conclusively and equivocally manifesting either a present intent to relinquish the easement’ or a purpose inconsistent with its further existence." First Natl. Bank of Boston v. Konner, 373 Mass. 463, 466–467 (1977), quoting from Willets v. Langhaar, 212 Mass, 573. 575 [1912]. Here, no more than nonuse in the context of respect for an elderly woman has been shown. The testimony was vague and failed to establish the length of time the plaintiffs had refrained from using the footpath out of respect for Miriam. There simply was no showing by circumstantial or other evidence that the defendants' history of nonuse was driven for the period of prescription by the Bullards' effective prohibition of their use.
Although the defendants testified that they used the footpath occasionally, the judge rejected their testimony and we defer to his credibility determination on this issue. What we are left with, then, is the defendants' lack of use of the footpath, no trespassing signs posted on the property that would not apply to easement holders, vegetation blocking a portion of the easement, and the timing of the defendants' belated use of the footpath. The available evidence falls short of the kind of open and notorious conduct necessary to extinguish an easement by adverse possession or signal an intent to abandon the easement. We conclude, therefore, that the judge's determination that Miriam Bullard's conduct was sufficient to extinguish the defendants' easements by adverse possession is clearly erroneous.
4. Scope of Easement. The defendants argue that their right of way over the footpath is not limited to foot traffic but also includes vehicular access. It is true that some of the deeds seem to refer to the footpath as another "way." That said, we cannot ignore that the strip is labeled on the plan as a "FOOT PATH." In addition, on the 1951 plan, what is now the footpath was a continuation of Captain Donald Path, one of the private ways shown on the plan, although positioned thirty feet to the west. When the plan was reconfigured in 1956, the access to the beach was relabeled footpath, rather than a new way or continuation of a way. There is nothing in the record to suggest that this change was not intentional or meaningful or that "FOOT PATH" means anything other than what it says. We conclude, therefore, that the defendants' rights over the footpath are for access by foot only.
5. Civil rights claim. The judge dismissed the defendants' civil rights counterclaim on the grounds that it could not go forward where they had no rights to use the footpath. As we reverse that finding, we also vacate the judgment dismissing the defendants' counterclaim and remand to the Superior Court for further proceedings. We express no opinion on its merits.
Conclusion. The declaratory judgment, that the footpath easement was extinguished by prescription, is reversed. The judgment dismissing the defendants' counterclaim is vacated and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.