Opinion
15-P-65
01-05-2016
ANDREW P. RIGO v. ELLEN CATSMAN FREIDIN & 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
After a bench trial, a judgment entered in the Land Court declaring that the plaintiff, Andrew P. Rigo, holds an easement to pass over a twenty-foot-wide way (Way) to "Beach C" for "beach use," but that his right to use it is limited to "foot traffic" and other nonmotorized means of travel. On appeal, Rigo argues that the foot traffic restriction should be removed from the judgment, and that the judgment should be amended to permit travel by a small motorized vehicle. We affirm.
Background. Although the evidence at trial centered on whether the easement had been extinguished, the parties' joint pretrial statements defined one of the trial issues as whether "the plaintiff had a valid easement in the [twenty]-foot wide Way[,] . . . and if so, for what purposes may such Way be used?" It appears that neither party made the specific argument regarding the use of small motorized vehicles until closing argument, and the judge so noted. Rigo now claims on appeal to have been surprised by the defendants' request for findings and rulings on the foot path restriction. However, the parties submitted to the judge the question of the use of the easement, and the judge decided the question. Both parties urge us to decide it on appeal.
Discussion. Rigo contends that the footpath restriction must be removed as a matter of law because he should be permitted to access the beach using a golf cart or other small motorized vehicle. Rigo relies on Anderson v. DeVries, 326 Mass. 127, 134 (1950), quoting from Sullivan v. Donohoe, 287 Mass. 265, 267 (1934), for the proposition that "[w]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication."
This doctrine often is applied in those cases where a general or unrestricted easement has been granted. See Marden v. Mallard DeCoy Club, Inc., 361 Mass. 105, 107 (1972). ("[A]n easement granted in general terms is not necessarily limited to the uses made of the dominant estate at the time of the creation of the easement and it is available for all reasonable uses to which the dominant estate may thereafter be devoted"). Here, however, the easement was granted not in general terms but for a particular purpose, that is access to Beach C for beach use. The judge was therefore entitled to look to extrinsic evidence as to the intent of the grantor at the time the easement was created. See Pion v. Dwight, 11 Mass. App. Ct. 406, 412 (1981). Moreover, even a general grant of an easement may be used only for "such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant," and may not overburden the easement granted. See Tehan v. Security Natl. Bank of Springfield, 340 Mass. 176, 182 (1959). "The question as to the extent and limits of a reasonable right of way . . . [is] largely one of fact." Labounty v. Vickers, 352 Mass 337, 345 (1967), quoting from Rajewski v. McBean, 273 Mass. 1, 6 (1930).
The question on appeal therefore presents a hybrid question of fact and law: whether the Land Court, given principles governing interpretation of deeds -- a legal question -- correctly interpreted the scope of the easement contemplated by the deed -- a legal question informed by factual findings regarding the grantor's intent. See Haugh v. Simms, 64 Mass. App. Ct. 781, 784-787 (2005). We accept a trial judge's findings of fact unless they are clearly erroneous. Conclusions of law are reviewed de novo. See Martin v. Simmons Properties, LLC., 467 Mass. 1, 8 (2014).
When interpreting easements created by deed, "their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). See Patterson v. Paul, 448 Mass. 658, 665 (2007). The Land Court judge correctly applied this standard by closely analyzing the text of the deed, which granted a right to use the Way to access Beach C for beach purposes. We construe the text in light of the attendant circumstances. See Pion, supra.
Rigo claimed full use of the Way. The defendants claimed that the beach no longer existed, and the easement was extinguished. On a motion for preliminary injunction, the judge concluded that the use of the easement was limited to access to, and use of, Beach C. He adopted these findings and rulings in his final judgment.
Rigo contends that the record compels the conclusion that the grantor intended the easement to accommodate more than just foot traffic. Rigo points to the fact that the Way is twenty feet wide, that two cars could pass side by side, that vehicles could park along the side of the Way, and that the grantor may have considered potential purchasers -- such as the elderly, disabled, or families with small children -- who would find the Way more easily navigable by car.
This amounts to an argument regarding the inference to be drawn from the attendant facts and circumstances. The judge was not compelled to draw the inference sought. In considering the attendant circumstances, we focus on the time of creation of the easement. See Bergh v. Hines, 44 Mass. App. Ct. 590, 592 (1998), quoting from Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 433, 444 (1990) ("The extent of an easement depends on the circumstances of its creation. . . . [T]he grant . . . must be construed with reference to all its terms and the then existing conditions so far as they are illuminating") (quotation omitted).
At the time the easement was granted in 1983, up until the plaintiff began cutting brush and trees in 2013, the Way consisted of a narrow four-foot-wide path surrounded by vegetation, suitable for walking, not driving motor vehicles. See Bergh, supra. The petitioner's plan described the way as a "footpath" and there were no parking spaces at the beach area for motor vehicles at any time in that thirty-year period. Had the grantor intended to expand the Way to allow for vehicular traffic, he could easily have specified it in the text of the deed. See Patterson, supra at 666 ("If that had been the intent of the parties, they easily could have so specified in the easements"). The factual finding that the grantor intended to restrict the Way to foot traffic was not clearly erroneous. See Martin, supra. The resulting legal conclusion was correct as a matter of law.
Judgment affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2016.