Opinion
11-P-1220
03-21-2012
QUITNESSET ASSOCIATES, INC. v. DMD PROPERTIES, LLC.
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
The plaintiff, Quitnesset Associates, Inc. (Quitnesset), appeals from a Land Court judge's determination that the doctrine of res judicata barred it from asserting its easement right to dock boats on property in Chatham owned by the defendant, DMD Properties, LLC (DMD). Quitnesset also argues that the judge erred in his conclusion that a proposed driveway did not interfere with its easement. We affirm in part, reverse in part, and remand for further proceedings.
The source of the disputed easement is a 1957 deed, in which David M. Davis and Anne Hall Davis (owners of the property) granted the easement to Edward R. Noyes. The deed conveyed 'an easement 50 feet wide and at least 150 feet long . . . to be used for boat landings or docking and for parking vehicles . . . .' In the mid-1970s, a dispute between these same parties over the location of the easement brought the case to the Land Court. In his 1976 decision, the first Land Court judge stated, '[T]he petitioner is entitled to a right of way to launch and land boats and to park automobiles in connection therewith.' Following this decision, the easement was used, among other ways, to store the dinghies used to access boats moored in the harbor. To this end, a horizontal telephone pole (or the like) was in place to keep the dinghies above the high water mark. DMD, successor in interest to the Davises, acquired the property in 2003 and 2004. In 2009, DMD sent a letter to the Morris Island residents benefited by the easement, notifying them that they would no longer be permitted to store dinghies on the shore, nor to make use of the telephone pole 'anchor.'
Quitnesset, successor in interest to Noyes, brought this action seeking declaratory relief from DMD's reconstruing of Quitnesset's easement rights. A second Land Court judge found that res judicata barred Quitnesset from relitigating the scope of the easement, concluding that the 1976 decision fully adjudicated the issue.
On appeal, Quitnesset argues that the second judge erred because (1) the 1976 decision does not circumscribe Quitnesset's claims and boat storage is allowed as of right; and (2) a proposed driveway being built by DMD on the property would interfere with Quitnesset's easement rights and should not be allowed. DMD contends that the 1976 decision omitted any mention of docking rights, and that it indeed controls the scope of the easement.
Docking. The doctrine of res judicata applies when 'the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.' O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1998). In order for claims to be precluded on the basis of res judicata, three elements must be the same: '(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.' Tynan v. Attorney Gen., 453 Mass. 1005, 1005 (2009), quoting from DaLuz v. Department of Correction, 434 Mass. 40, 45 (2001). Although the first and third elements likely are satisfied in the present case, the issue in the 1976 litigation was the location of the easement, not its scope. During that litigation, both parties conceded that docking rights were included in the 1957 deed granting the easement, and argued only 'the location for the right of way to the water.' Noyes's lawyer sent Noyes a letter explaining the decision to mean that the owners of lots on Morris Island 'have a right to use this right-of-way, to get to and from Stage Harbor, this being intended to take care of the easement to be used for boat landing and docking . . .' (emphasis supplied). Indeed, after the 1976 decision, Noyes and the inhabitants of Morris Island continued to dock without complaint from Davis. In the end, the scope of the easement was not litigated and, as such, res judicata does not apply.
1 The 1976 decision states that 'David M. Davis, in his testimony, stated that he had never intended to give petitioner Noyes the right to launch boats at Stage Harbor but only the right to dock or land them there.'
2 That no appeal was taken from the 1976 decision is of no moment as there was no incentive to appeal, given the interpretation and actions of the parties, allowing docking.
In addition, language in a deed that creates an easement, not ambiguous, creates a property interest that cannot be infringed. See Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363, 365 (1979). When a deed expressly reserves an easement for the benefit of a parcel, it 'can be extinguished only by grant, release, abandonment, estoppel or prescription.' Emery v. Crowley, 371 Mass. 489, 495 (1976). In this case, the 1957 deed expressly created an easement 'to be used for boat landings or docking and for parking vehicles.' It appears that the easement never was extinguished.
A remand thus is necessary on the issue of the scope of the easement for 'docking,' including, but not limited to, whether it includes the right to store dinghies, build structures, or maintain a telephone pole 'anchor.'
Driveway. Quitnesset argues that the second Land Court judge misunderstood its argument in that what was being asserted was the location of the easement, not that it was being paved. The judge observed, correctly in our view, that the easement may be relocated if certain factors are met. We see no reason to upset that ruling, only observing that if in fact the driveway does impede access to the easement, then those negatively affected may seek judicial redress.
3 We note that no appeal was taken from the ruling that DMD may not place a gate around the area of the easements in order to assure its proper use.
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So much of the judgment as ruled that res judicata barred the litigation of the scope of the easement is reversed, and the case is remanded for further proceedings consistent with this decision. In all other respects, the judgment is affirmed.
So ordered.
By the Court (Kantrowitz, Vuono & Agnes, JJ.),