Opinion
21-P-47
01-26-2022
MICHAEL W. YOGMAN & another [1] v. MARION S. VENDITUOLI, trustee, [2] & another. [3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This case addresses the narrow issue of whether the plaintiffs, Michael Yogman and Elizabeth Ascher, have a right of way in both directions over the private road that fronts their residential lot in the town of Westport. The parties do not contest that the plaintiffs may pass in a westerly direction over the private road to the public way. At issue is whether the plaintiffs also have an easement to proceed in an easterly direction over an undeveloped portion of the private road to access the Westport River. On cross motions for summary judgment, a judge of the Land Court declared that they did not. 1
On appeal, the plaintiffs principally argue that their deed grants them an easement to travel east over the private road and that, in the alternative, they have an easement by estoppel to use the road in its entirety. We affirm.
Background.
We summarize the undisputed material facts. The private road and the residential lots at issue were created by a subdivision plan commissioned by Sophie H. Wheeler and her daughter, Rhoda W. Sheehan, which was approved by the town's planning board, and recorded in 1958 (1958 plan). The 1958 plan shows some sixteen lots; seven of the lots abut the Westport River on their eastern or southeastern boundaries. The private road, Ben's Point Lane, as shown on the 1958 plan, extends from the west at its intersection with the public way (Acoaxet Street), and runs easterly in a straight line to the Westport River. The final eastern 300 feet of the lane, which includes the portion of the lane that fronts lot 13 and some of lot 10, is densely vegetated. Approximately three quarters of the way down the lane from the public way, a narrower road, identified as Pond Lane, intersects Ben's Point Lane to the south.
A third private way, running parallel to Ben's Point Lane, shown as Redwing Lane, is located some 542 feet south of Ben's Point Lane and ends at a wharf at the Westport River.
In May of 1958, Sheehan and Wheeler entered into an agreement which was recorded in the Bristol County Registry of 2 Deeds on January 5, 1961. As reflected in the agreement, Sheehan owned the lots north of Ben's Point Lane, including, from west to east, lots 7, 8, 9, 10, and 13, along with the portion of the lane abutting those lots. Wheeler owned the rest of the subdivision property with the exception of one previously conveyed lot. The agreement established the southern line of Ben's Point Lane as the division line between Sheehan and Wheeler's properties and confirmed that Sheehan would own everything north of that line, including Ben's Point Lane, and Wheeler would own everything south of the line. Further, Sheehan granted Wheeler easement rights over Ben's Point Lane for some of her lots that otherwise would have been landlocked, but expressly limited those easement rights to the portion of the lane west of the east line of Pond Lane. Wheeler did not grant any easement rights over the ways south of Ben's Point Lane to Sheehan.
From 1958 to 1985, Sheehan retained ownership of lots 7, 8, 9, 10, and 13. During this time, the eastern end of Ben's Point Lane was unimproved, overgrown, and "unpassable." Sheehan did not use it to access the Westport River; nor did anyone else while she owned it.
In 1985, Sheehan began transferring some of her lots to herself as trustee of Ben's Point Realty Trust (realty trust). She first transferred lot 13 to the realty trust; lot 13's 3 eastern boundary abuts the Westport River, and its southern boundary abuts Ben's Point Lane. The deed described the lot as bound by Ben's Point Lane, identified it as lot 13 on the 1958 plan, and granted the trustee the right "to use Ben's Point Lane for ingress and egress from Acoaxet Street along with others who are entitled to use the same." In 1986, Sheehan transferred lot 10, immediately west of lot 13, and in 1989, she transferred lot 9, both to herself as trustee of the realty trust, and conferred the same right to use Ben's Point Lane for access to and from Acoaxet Street. Lots 9, 10, and 13 were all located to the east of Sheehan's home on what was then lot 8 on the 1958 plan, but is now referred to as lot C. Sheehan did not (i) mention the river, (ii) expressly reserve for herself a right to use Ben's Point Lane east of lot C, or (iii) reserve the right to grant easements over Ben's Point Lane.
In January of 1988, Sheehan received approval of a new subdivision plan (1987 plan) that reconfigured lots 7 and 8 into lots A, B, and C. On that plan, the width of Ben's Point Lane is shown as 40 feet and the lane is depicted as proceeding open-ended toward the east beyond lot C. The widths of the frontage of lots A, B, and C along Ben's Point Lane are surveyed and 4 shown. The full length of Ben's Point Lane is shown on a "Location Plan" inset on the 1987 plan.
A slightly revised version of the 1987 plan was approved on January 6, 1989 (1989 plan). That plan, however, was not referred to in any subsequent deeds.
On March 10, 1988, Sheehan transferred lot B on the 1987 plan to her son and daughter-in-law. Although she granted a utility easement over her own lot C, she included no express easement over Ben's Point Lane.
Sheehan owned lot C until her death in 1997. In 1999, her son, Philip Sheehan, under a power of sale in Sheehan's will, sold lot C to Alice Turner, describing it in a deed as "Lot C" on the 1987 plan, and with an express easement over Ben's Point Lane "as shown on said plan in common with others having rights in said Lane, for all purposes for which public streets are used in the Town of Westport."
In 2005, the defendants, Marion S. Vendituoli and Eileen W. Sheehan, as successor trustees to the realty trust, transferred lots 9, 10, and 13 to themselves as trustees of the RWS Family Holding Trust.
The plaintiffs are the successors to Turner and now own lot C. Their deed mirrors, as to the issues before us, the 1999 deed to Turner. They claim that the defendant, Eileen Sheehan, told them that if they were respectful of the natural 5 environment, she had no problem with them using Ben's Point Lane to access the river and that the prior owner had done so. The plaintiffs commenced this action seeking a declaratory judgment and injunctive relief concerning their rights to use the entirety of Ben's Point Lane, including to the east of their property to the river.
Discussion.
"As the party claiming an easement or right of way, it is well settled that the [plaintiff] bears the burden of proving its existence." Duddy v. Mankewich, 75 Mass.App.Ct. 62, 66 (2009). Because the case was decided on summary judgment, our review is de novo and we consider "the record and the legal principles involved without deference to the motion judge's reasoning." Bernstein v. Planning Bd. of Stockbridge, 76 Mass.App.Ct. 759, 765 (2010), quoting Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass.App.Ct. 347, 357 n.9 (2005) .
The defendants contend they can prohibit the plaintiffs from turning left out of their driveway and proceeding toward the river because, as owners of lots 9, 10, and 13, they own the fee in the way in front of their properties. The parties do not dispute that each of the owners of the lots abutting the northern boundary of Ben's Point Lane owns the fee in the lane adjacent to their properties by virtue of the 1958 agreement and the derelict fee statute, G. L. c. 183, § 58. However, "the 6 derelict fee statute pertains only to the question of ownership of the fee. With respect to the existence of an easement, we look, rather, to the intention of the parties regarding the creation of the easement or right of way, determined from 'the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable,' ... to determine the existence and attributes of a right of way." Adams v. Planning Bd. of Westwood, 64 Mass.App.Ct. 383, 389 (2005), quoting Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). The original deeds of lots 9, 10, and 13 put the grantee on notice that others also have rights to use Ben's Point Lane.
The judge found and the defendants contend on appeal that the plaintiffs' express easement over Ben's Point Lane "as shown on said plan" extends only to the "surveyed" portion of the plan that "underwent the rigors of a professional survey." Ben's Point Lane, however, is "shown" on the 1987 plan as extending east beyond lot C and it is depicted as open-ended. The southern boundary of Ben's Point Lane is not surveyed. Nothing on the plan suggests that any right of way over Ben's Point Lane is limited to the portion west of the eastern end of lot C. See Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725, 728 (1971) (Kassuba Realty) (where detail plans of registered land indicate 7 that lines of roads are carried beyond limits of land immediately conveyed, recourse to extrinsic evidence to determine intent of parties as to grantee's rights beyond limits of his own land is appropriate); Duddy, 75 Mass.App.Ct. at 68 (plan depicting road as proceeding, open-ended, a measurable distance into other land, puts parties on notice that additional rights over road may exist).
The defendants and the judge rely on Darman v. Dunderdale, 362 Mass. 633, 638 (1972), for the proposition that the location plan inset on the 1987 plan does not indicate an intent to grant an easement over Ben's Point Lane east of lot C. First, we note that in Darman the court considered adjacent but different subdivisions and concluded that reference to Plan No. 1 in the legend of Plan No. 2 was "not a clear enough indication that the grantor intended to give the grantees of land shown on Plan No. 2 easements over all the roads shown on Plan No. 1." Id. Here, we are considering a further subdivision of property shown on a previous plan. Even assuming that the appearance of the full length of Ben's Point Lane in the location map is insufficient evidence of an intent to create easement rights along the full length of the lane, the 1987 and 1989 plans clearly indicate in centrally positioned notes that they are simply a further subdivision of lots created by the 1958 plan and contain the book and page number of the 1958 plan. In these circumstances, 8 that the entirety of Ben's Point Lane is not shown on the 1987 and 1989 plans is not dispositive as to whether the parties intended that the owners of lots A, B, and C would have the right to use Ben's Point Lane to the east of their property.
In Kassuba Realty, as here, there was no dispute that the respondents had rights of way over the portion of the ways abutting their land and over further portions which had been laid out and used as private ways. 359 Mass. at 727. There, the dispute was over the "southerly 'paper' extensions" of those ways into the petitioner's property not abutting the respondents' land. Id. The Supreme Judicial Court said that "[i]n such a case, if nothing is contained in the deed to define it, 'the extent of the grantee's rights beyond the limits of his land will depend upon, and may be shown by, extrinsic facts, as they existed at the time of the conveyance.'" Id., quoting Frawley v. Forrest, 310 Mass. 446, 451 (1941).
We turn then, to the extrinsic facts in this case, bearing in mind that Sheehan's son, Philip, could transfer to Turner, the plaintiffs' predecessor in interest, only what Sheehan had. See Marshall v. Francis, 332 Mass. 282, 288 (1955). See also Darman, 362 Mass. at 639 (if company did not own rights of way in Plan No. 1 when it conveyed lots in Plan No. 2, "it of course could not convey them to" owners of lots in Plan No. 2). The first deed of lot C is the 1999 deed to Turner. The detailed 9 history of Sheehan's treatment of the property shown on the 1958 plan indicates that she first ensured by the 1958 agreement that no lots south of Ben's Point Lane would be able to use the lane to reach east of Pond Lane, including the river. This is even true of lot 11B on the 1958 plan, which had over two hundred feet of frontage on Ben's Point Lane east of Pond Lane. And, while her actions with regard to lots she did not own are not dispositive of the question of her intentions with regard to the lots she did own, she later transferred lots 9, 10, and 13 to her trust, granting an express easement only for ingress and egress to the public way. The right of way to lots 9, 10, and 13 having been thus defined, no implied easement could arise from, for example, reference to the 1958 plan. See Prentiss v. Gloucester, 236 Mass. 36, 54 (1920) . In these deeds, she did not reserve the right to grant easements over Ben's Point Lane east of lot C, not even for herself.
By the time of the 1999 deed, Sheehan had failed to reserve any rights to grant easements over Ben's Point Lane and had taken action inconsistent with an intent to confer on any lot owner abutting Ben's Point Lane an easement to reach the river. To the extent that the broader language used by Philip when he transferred lot C to Turner might be interpreted as intending to grant an easement over the full length of the lane in both 10 directions, nothing in the record suggests that in 1999, he had the authority to grant an easement east of lot C.
The plaintiffs argue that it cannot be the case that when lots are laid out in a subdivision, the order in which they are conveyed bears on whether they have an easement over the ways. It is true that "the chronology" of conveyances of lots out of a subdivision is "no obstacle" to the finding of an easement where "there [is] evidence sufficient to support a scheme on the part of the common grantor." Rahilly v. Addison, 350 Mass. 660, 663 (1966). Here, however, the evidence compels the conclusion that there was no common scheme to provide access to the river; Sheehan's conduct following the recording of the 1958 plan indicated that she intended only to ensure access from the public way to the individual lots, not from the individual lots to the river.
It is true that the 1958 plan shows Ben's Point Lane extending to the river. That fact, considered in isolation, suggests an intent to use the private road to access the river. See Rahilly, 350 Mass. at 662 (if creator of subdivision did not intend lots to have access to beach area, he would have ended road before it reached beach). But Sheehan never deeded lot C pursuant to the 1958 plan, and all subsequent indications are that she neither retained the right to grant easements east of lot C nor intended to grant easements east of lot C. Philip, 11 therefore, could not have granted the plaintiffs' predecessor an easement over Ben's Point Lane east of lot C.
The plaintiffs rely on the familiar rule that when a grantor of recorded land conveys land bounded on a street or way, he and those claiming under him are estopped from denying the existence of the street or way along the entire length of the way "as it is then laid out or clearly indicated and prescribed." Casella v. Sneierson, 325 Mass. 85, 89 (1949) . See Hickey v. Pathways Ass'n, 472 Mass. 735, 754 (2015). Even where that rule has been applied, however, the Supreme Judicial Court has indicated that "[t]he extent of the plaintiff[s]' rights beyond the limits of [their] land 'will depend upon and may be shown by, extrinsic facts, as they existed at the time of the conveyance.'" Casella, supra at 91, quoting Frawley, 310 Mass. at 451. See Kassuba Realty, 359 Mass. at 727-728. For the reasons discussed supra, at the time of the 1999 conveyance, 12 Philip had no right to grant easements over Ben's Point Lane east of lot C.
Judgment affirmed.
Wolohojian, Kinder & Hershfang, JJ. 13
The panelists are listed in order of seniority.