Opinion
No. 96-01872
December 3, 1997.
INTRODUCTION
This lawsuit is brought by plaintiffs in an effort to establish their rights in certain property owned by defendants. Count I of the complaint alleges that plaintiffs are entitled to the use and enjoyment of a right of way over defendants' property by virtue of express grants contained in documents recorded in the Worcester North District Registry of Deeds. Counts II and III maintain that plaintiffs have acquired, respectively, adverse possession and prescriptive easement rights to a right of way over defendants' property.
Plaintiffs seek summary judgment as to Count I. Defendants pray for summary judgment on each of the three counts contained in plaintiffs' complaint. Both motions will be tested by the standards prescribed by Mass.R.Civ.P. 56.
For the reasons stated infra, plaintiffs' motion for summary judgment upon Count I will be DENIED. Defendants' motion for summary judgment will be ALLOWED, in part, and DENIED, in part, as to Count I, ALLOWED as to Count II and DENIED as to Count III. The result will be that trial may proceed upon Count I (as to certain plaintiffs) and Count III.
BACKGROUND
All of the properties relevant to this action are located off Spring Street and Spring Street Extension in Lunenburg, Massachusetts. The present property interests each derive from a large tract of land originally owned by one Almon O. Welch.
Jeffrey Stone, Ernest J. Smith, III, Brenda Mathieu, Robert Mathieu, Theodore Baker and John Perko ("plaintiffs") own properties and homes located off Spring Street and Spring Street Extension. Richard and Julie Perkins ("defendants") own property located at 65 Spring Street.
Spring Street begins at Flat Hill Road and ends at defendants' property line. Spring Street Extension begins on the other side of defendants' property and continues to Reservoir Road, Lunenburg. At issue is whether there exists a recorded right of way in favor of plaintiffs over defendants' property at 65 Spring Street, or, in the alternative, whether plaintiffs have established rights to the same tract under theories of adverse possession or easement by prescription.
Giving rise to this action is defendants' construction of an automobile garage and breezeway on their 65 Spring Street property. Plaintiffs contend that the construction of the garage infringes on their right of way across the defendants' property.
DISCUSSION
This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file and affidavits. Dawes, 369 Mass. at 553. The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 15-17 (1989). The non-moving party's failure to prove an essential element of its case "renders all other facts immaterial" and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex v. Catrett, 477 U.S. 317, 322 (1986).
I. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT UPON COUNT I (RECORDED RIGHT OF WAY)
Plaintiffs claim that a continuous right of way exists over the defendants' property. Plaintiffs offer, as evidence of that express right of way, a series of deeds and plans that are recorded in the Worcester North District Registry of Deeds. The deeds purport to create a chain of title from the original grantor, Almon O. Welch, to the present title holders, thus allegedly establishing an express grant over the defendants' property.
Although defendants admit to the existence of express easements upon their property, the loci of the easements are in dispute. According to the plot plans, the easements do not extend across the disputed area of land. The plaintiffs have construed a series of existing, but unrelated, easements in such a fashion as to create a continuous right of way across the defendants' property. That construction of the several easements may or may not be factually sound. A review of the recorded plans and deeds confirms that there exist rights of way from a number of the plaintiffs' properties to nearby roads. There also exist, however, genuine issues of material fact — at least in the cases of plaintiffs Baker and Stone (see section IIA, infra) — as to whether or not those easements intersect and whether or not they give rise to a continuous easement across the defendants' property.
At bottom, plaintiffs have failed to satisfy their burden, as moving party, of affirmatively demonstrating the absence of a triable issue with respect to their claim of an express easement. Accordingly they are not entitled to summary judgment upon Count I of their complaint.
II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. COUNT I (RECORDED RIGHT OF WAY)
Defendants have submitted certified copies of plans and deeds for the properties in question as affirmative evidence that no continuous easement exists across 65 Spring Street.
A party moving for summary judgment, who does not bear the burden of proof at trial, may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis 410 Mass. at 716. In the case at bar, plaintiffs bear the burden of proving, at trial, the existence of an express right of way. Defendants, therefore, may prevail upon their Rule 56 motion by demonstrating that plaintiffs cannot prove, at trial, that the recorded easements intersect in a manner creative of a continuous easement. In that task defendants have been partially successful.
The submitted depositions, plans and deeds support a portion of defendants motion for summary judgment because certain of the plaintiffs cannot, as demonstrated infra, prove an essential element of their respective causes of action. Ernest Smith, III, according to his deposition testimony, has no ownership interest in his residence of 52 Spring Street Extension. As a stranger to the deed of that property, he cannot gain an easement thereunder. McDermott v. Dodd, 326 Mass. 54, 57 (1950). Similarly, in his deposition, Robert Mathieu concedes that he holds no ownership interest in his residence at 52 Spring Street and, therefore, cannot claim an easement associated with that property. Id. John Perko's deposition testimony and his deed (64 Spring Street) indicate that he owns no easement running across defendants' property. The deed of Brenda Mathieu (52 Spring Street) contains an easement on the southeasterly side of her lot granting access to the highway. The highway to which she gains access via the easement is Reservoir Road. That easement does not cross defendants' property. The claims of those plaintiffs to an express easement must, accordingly, succumb to summary judgment.
On the other hand, the deeds of Theodore Baker (17 Spring Street) and Jeffrey Stone (35 Spring Street Extension) suggest that a different summary judgment result should ensue. Their deeds each contain language granting rights of way that run between Reservoir Road and Flat Hill Road. Whether that language constitutes the establishment of an express easement is the dispositive question.
The Supreme Judicial Court has observed that, "While no particular words are necessary for the grant of an easement, the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements." Parkinson v. Assessors of Medfield, 395 Mass. 643, 645 (1985), quoting Dunlap Investors, Ltd. v. Hogan, 133 Ariz. 130, 132 (1980). If the instrument creating the easement does not describe the servient land with the precision required to render it "capable of identification . . . the conveyance is absolutely nugatory." Id. at 645-646, quoting McHale v. Treworgy, 325 Mass. 381, 385 (1950). The instrument establishing the easement must be sufficiently precise that "a surveyor can go upon the land and locate the easement." Id. at 645, quoting Vrabel v. Donahue Creek Watershed Auth., 545 S.W.2d 53, 54 (Tex.Civ.App. 1976). The Baker and Stone deeds each contain general language granting rights of way extending from their properties to Reservoir Road and to Flat Hill Road. Whether or not that language, purporting to establish the Baker and Stone rights of way, is sufficiently precise to enable a surveyor to identify the alleged easement is a question of fact properly to be submitted to the trier of fact.
For those reasons and for the reasons stated in I(A) supra, the defendants' motion for summary judgment upon Count I (Express Easement) will be granted in part and rejected in part.
B. COUNT II (ADVERSE POSSESSION)
Plaintiffs assert, in Count II, a claim of adverse possession over the disputed right of way. Defendants respond that defendants are entitled to a judgment as a matter of law because plaintiffs cannot prove, at trial, that their claim satisfies the statutory requirements of adverse possession.
Title by adverse possession can be acquired only by proof of nonpermissive use, which is actual, open, notorious, exclusive, and adverse for twenty years. G.L.c. 260, § 21; Ryan v. Stavros 348 Mass. 251, 262 (1964). The purpose of those preconditions to adverse possession is to put the owner on notice of the hostile character of the possession so that the owner may, if he chooses, take steps to vindicate his rights by legal action before his interest in the property is lost. Seamen's Friend Soc., Inc., v. Rifken Management, Inc., 19 Mass. App. Ct. 248, 251, rev. denied, 394 Mass. 1101 (1985).
To acquire title by adverse possession, one must have exclusive possession. Ansin v. Taylor, 262 Mass. 159, 164 (1927). Generally, where one claims title to land by adverse possession, the question of exclusivity is one of fact for determination by trial. Putnam v. Bowker, 65 Mass. 542, 546 (1853). Here, however, plaintiffs concede in their deposition testimony (Deposition of Stone page 29; Deposition of Smith pp. 35-36; Deposition of R. Mathieu p. 27; Deposition B. Mathieu pp. 58-59; Deposition of Baker p. 10; Deposition of Perko pp. 49-50) that they make no claim to exclusive use of the strip of land in dispute. That concession compels the conclusion that plaintiffs will be unable to satisfy, at trial, at least one of the necessary elements of adverse possession.
The court may take into account deposition testimony, inter alia, in its resolution of motions for summary judgment. Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976).
The non-moving party's failure to prove an essential element of its case "renders all other facts immaterial" and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) citing Celotex v. Catrett, 477 U.S. 317, 322 (1986). With respect, therefore, to defendants' motion for summary judgment on Count II, this court concludes that defendants are entitled to judgment by reason of plaintiffs' inability to carry their burden at trial.
C. COUNT III (EASEMENT BY PRESCRIPTION)
In Count III, plaintiffs press their right to the disputed tract under a theory of easement by prescription. Defendants seek summary judgment on the ground that plaintiffs have used the tract with the permission of the previous owners of 65 Spring Street. Defendants argue further that plaintiffs have not used the disputed tract continuously for twenty years. Therefore, defendants conclude, plaintiffs will be unable, at trial, to satisfy the statutory requirements necessary for easement by prescription.
"No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years." G.L.c. 187, § 2. To acquire easement by prescription, there must be open, notorious, continuous, and adverse use for twenty years. Ryan v. Stavros, 348 Mass. 251, 263 (1964).
The principal distinction between the legal theories of adverse possession and easement by prescription lies in the element of exclusivity. Adverse possession requires a showing of exclusivity of use by the claimant; a prescriptive easement may be established without such exclusivity. One may fail to prevail on the former, but gain a right via the latter. Thus, plaintiffs' failure in Count II is not dispositive of their Count III claims. We must, therefore, address Count III notwithstanding defendants' victory in Count II. See Section IIB, supra.
In opposition to the claim of easement by prescription defendants' argue, in the main, that plaintiffs' claim lacks the elements of adverse and continuous use. The question whether plaintiffs' use of the defendants' land was adverse and continued without interruption is a question of fact. Rothery v. MacDonald, 329 Mass. 238, 240-241 (1952). As those elements of the Count III cause of action are disputed by the parties in their pleadings and affidavits, there remain genuine issues of material fact and summary judgment is thus inappropriate.
CONCLUSION
With respect to Count I (Express Easement) there are genuine issues of material fact with respect to the Baker and Stone properties and the effect of this court's disposition of the several motions for summary judgment will be to permit trial of Count I issues pertaining to the Baker and Stone claims. The other plaintiffs will be unable to establish, at trial, an essential element of their respective Count I causes of action and, therefore, no trial may proceed as to them on that Count. As to Count II (Adverse Possession), each plaintiff concedes in deposition testimony that there is no claim to exclusivity of use. Therefore, since the defendant has shown that plaintiffs will be unable to prove an essential element of their claim, summary judgment will be granted in favor of defendant, thus excising Count II as a triable claim. Count III (Easement by Prescription) remains as a cause of action properly presented for trial.
ORDERS
1.) Plaintiffs' Motion for Summary Judgment (Count I — Express Easement) is DENIED.
2.) Defendants' Motion for Summary Judgment (Count I — Express Easement) is ALLOWED as to plaintiffs Smith, B. Mathieu, R. Mathieu and Perko and is DENIED as to plaintiffs Stone and Baker.
3.) Defendants' Motion for Summary Judgment (Count II — Adverse Possession) is ALLOWED.
4.) Defendants' Motion for Summary Judgment (Count III — Easement by Prescription) is DENIED.
___________________________________ Daniel F. Toomey Justice of the Superior Court
DATED: December, 1997.