COMMONWEALTH OF MASSACHUSETTS

LAND COURT

DEPARTMENT OF THE TRIAL COURT

HAMPSHIRE, ss.

ELIZABETH C. WALDRON, PAULAM.A.RDAS,STEPHEN B. HATHAWAY,MARIE HERSHKOWITZ, LA"VI1;RENCER. TATRO, KAREN K. TATRO, EILEENO'KANE, and MARY NOW,

Plaintiffsv,

TOFINO ASSOCIATES, INC.,NORTHERN AVENlJE H011ES, INC.,LIVING CITY PROPERTIES, INC., andAVETUS VANASSE alk/a AVETUS G.VANASSE and his HEIRS, 1

Defendants

08 MISC 374551 (KFS)

DECISION

Plaintiffs initiated this action on March 14, 2008, by filing a seven-count complaint

seeking to establish and clarify the parties' rights of ownership and use of two ways shown on a

plan ofland in Northampton2 Defendants set forth two counterclaims seeking: (1) a declaration

that Northem Avenue Homes, Inc. (Northern Homes) and Living City Properties, Inc. (Living

I Defendant A vetus Vanasse aJkJa A vetus G. Vanasse and his heirs were dismissed from the case pre-trial.Also prior to trial, on April 16,2010, all parties stipulated that all claims advanced by Plaintiff Eileen O'Kaneagainst Defendants and all counterclaims against Plaintiff Eileen O'Kane could be dismissed pursuant to Mass. R .. eiv. P, 4 I (a)(1 )(ii). During the trial, the parties stipulated to the dismissal of all claims involving PlaintiffsLawrence R. Tatro and Karen K. Tatro against Defendant Tofmo Associates, Inc. (Trial Tr. vol. I, 12, July 12,2010; Trial Tr. vol. II, 48, July 13; 2010.)

2.Plaintiffs' complaint sought (l) a declaration that Defendants have no rights of access over a celiainunnamed subdivision way and a way known as View Avenue; (2) equitable relief balTing Defendants frominterfering with Plaintiffs' rights; (3) to quiet title to portions of Defend ants' land in Plaintiffs' possession; (4) toclear a cloud on Plaintiffs' title caused by Defendants' claims of ownership; (5) to establish title to the disputedpremises through adverse possession; (6) to establish a prescriptive easement over the disputed premises; and (7)damages for Defendants' alleged trespass on Plaintiffs' propeliy.

City) have an easement over a certain unnamed way and Plaintiffs have no right of access over

View Avenue; and (2) equitable reliefbalTing Plaintiffs from obstructing or interfering with

Defendants' rights.

In May 2009, Plaintiffs filed a motion for partial summary judgment on Count I of the

Complaint, which was opposed by Defendants. By order dated January 5, 2010, this court

denied Plaintiffs' motion for summary judgment. Thereafter, this matter was scheduled for trial.

A two-day trial was held on July 12 and 13,2010. Due to the dismissal of certain claims

and parties both before and during trial, the trial itself pertained only to the portions of Counts I

through VII of the complaint and the counterclaims regarding rights in the U1mamedsubdivision

way, all claims pertaining to View Avenue having been dismissed.

At trial Defendants presented testimony of Douglas Kohl, a principal of Tofmo

Associates, Inc., Northern Homes, and Living City; Paul Roger Lussier, a registered land

surveyor with Berkshire Design Group; Lester E. Gavin, an expert in aerial photography

interpretation; and Dennis Helmus, Plaintiff Waldron's tenant. Plaintiffs proffered the

testimony of Plaintiff Paul A. Mardas. By agreement, the deposition of Plaintiff Elizabeth C.

Waldron was submitted in lieu of testimony. Fifty-six exhibits were entered in evidence, as well

as a Joint Statement of Agreed Facts. Defendants moved for a required finding pursuant to

Mass. R. Civ. P. 41 (b)(2) at the close of all the evidence which was opposed in writing by

Plaintiffs. The motion was denied by this court by order dated September 29, 2010. The cOUli

took this matter under advisement after the submittal of post trial briefs, comprised of findings of

fact and conclusions of law.

Based on the parties' stipulations and on all the evidence and reasonable inferences

drawn therefrom, this court finds the following material facts:

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I. The parcels ofland which are the subject of the dispute between the Plaintiffs andDefendants, i.e. the unnamed subdivision way and all lots adjacent to that way, are shownon a plan entitled "Plan of Land, Estate of Mrs. Caroline M. Roberts" (Plan) dated May29,1913, recorded february 17, 1915, with the Hampshire Country Registry of Deeds inBook 3, at Page 16.' The Plan subdivides the propeliy owned by the Estate of Mrs.Caroline M. Roberts (Robelis Homestead) into seventy-four lots4

Paliies

2. Plaintiff Elizabeth C. Waldron (Waldron) owns Lot 65 and the easterly half of Lots 61and 63, by deed from Waldron and Theresa 1. Coffey, dated June 23,1997, recorded inBook 5144, at Page 63.

3. Plaintiff Paul A. Mardas (Mardas) owns Lot 27, by deed from Margaret B. Mardas, datedAugust 10, 1994, recorded in Book 4533, at Page 185.

4. Plaintiff Stephen B. Hathaway and Marie Hershkowitz own Lots 14, 16, 18, 39, 41, and43, by deed from Roger A. Walaszek, Executor under the will of Harriet M. French,dated October 15,1987, recorded in Book 3074+-, at Page 197.

5. Plaintiff Mary Now owns Lot 25, by deed from Thomas A. Cavanaugh and Cynthia A.Cavanaugh, dated October 7, '1980, recorded in Book 2189, at Page Ill.

6. Defendant Northern Homes owns Lots 22, 24, 26, 28, 30, 32, 47, 49, 51, 53, 55, 57, and59, by deed from McCutcheon Development, LLC, dated September 7, 2005, recorded inBook 8428, at Page 219.

7. Defendant Living City owns Lots 12 and 37, by deed from Roland 1. Lavallee, dated July6,2007, recorded in Book 9191, at Page 300.

8. Defendants Northern Homes and Living City, as well as Plaintiffs Waldron, Mardas,Hathaway, and Hershkowitz, all own the fee in the portions of the unnamed subdivisionway abutting their respective lots as shown on the Plan.

Relevant Conveyances

9. By deed dated December 15, 1915, recorded in Book 718, at Page 351, the heirs ofCaroline M. Roberts (Roberts Heirs) conveyed the southwesterly half of the Roberts

3 AJI references to recorded instruments are to' this registry4All references in this decision to propeliies by lot numbers are to this Plan. Attached to this decision is a

Sketch which is a copy of Exhibit 3 (Chalk A), which itself is a copy of the Plan, with notations.

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.Homestead to Hanna T. Moriarty (Moriarty Parcel). The parties have stipulated to thedismissal of all claims of ownership pertaining to the Morialiy Parcel. 5

10. By deed dated September 2,1914, recorded in Book 705, at Page 325, the Roberts Heirsconveyed the northeasterly half of the Roberts Homestead to Victor J. 1. Bemier andAvetus Vanasse (Vanasse) (Vanasse Parcel). '

I I. The two above-mentioned deeds did not convey the respective parcels by reference to thePlan, but rather utilized metes and bound descriptions for the parcels. The unnamedsubdivision way and all lots adjacent to that way which are the subject of this disputebetween Plaintiffs and Defendants were fOimerly part of the Vanasse Parcel.

12. By deed daied April 23, 1919, recorded in Book 746, at Page 49, Victor J. 1. Bernierconveyed his one-half interest in the Vanasse Parcel to Vanasse. Thus, as of April 23,1919, Vanasse was the sole owner of the Vanasse Parcel.

13. By deed dated October 5, 1921, recorded in Book 772, at Page 330, Vanasse conveyed aone-half interest in Lot 65 to M. C. Kroll (Kroll). The description of land containedv"ithin the deed provides, in relevant part, "bounded Northwesterly along a contemplatedstreet." Two months later, on December 22, 1921, the deed was 'amended by aconfirmatory deed recorded in Book 775, at Page 64. The confirmatory deed changed"Northwesterly along a contemplated street" to "Northeasterly by an open wf1Y."(emphasis added.)

"14. By deed dated April 22, 1922, recorded in Book 778, at Page 487, Vanasse and Krollconveyed Lot 65 to Frank Menegat and Carmelo Menegat (Menegats). The descriptionprovides, in relevant part, that the lot is "bounded Northeasterly by an open way."Following this conveyance, the Menegats oVined the portion of unnamed way abuttingtheir property in fee. Vanasse and Kroll did not expressly retain any rights therein.

15. By deed dated April 7, 1924, recorded in Book 803, at Page 379, Vanasse conveyed Lot27 to Edward C. Callanan and Mabel T. Callanan (Callanans). The description provides,in relevant part, that the lot is "bounded Southwesterly by an open way." Following thisconveyance, the Callanans owned the portion of unnamed way abutting their property infee. Vanasse did not expressly retain any rights therein.

16. By deed dated November 6,1931, recorded in Book 876, at Page 193, Vanasse conveyedLots 6, 20, 22, 24, 26, 28, 30, 32, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57,59,61, and 63 as shown on.the Plan to Louis R. Marin and Delia Marin (Marins).

17. By deed dated July 10, 1942, recorded in Book 967, a{Page I 89, the Marins conveyedLot 37 as shown on the Plan to Roland Lavallee and Gabriele Lavallee (Lavallees)6

5 The Moriarty Parcel is shown on a plan recorded in Book 3, at Page 100A, a copy of which is Exhibit 2('Plan of Building Lots Belonging to Daniel D. Moriarty").' . .

6 The deed is not a part of the record; however, the conveyance is refe;~nced on a later deed dated July 6,2007, recorded in Book 9191, at Page 300, in which the Lavallees conveyed Lot 37 to Defendant Living City. The

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18. By deed dated January 7,1944, recorded in Book 978, at Page 236, the Marins conveyedLot 39 and 41 as shown on the Plan to George E. French and Harriet E. French.

19. By deed dated June 29, 1949, recorded in Book 1050, at Page414, the Marins conveyedLots 22, 24, 26, 28, 30, 32, 43, 45, 47, 49, 51, 53, 55, 57, and 59 to Donald I. King(King). King was not expressly granted any rights in the unnamed subdivision way in thedeed from the Marins. Through mesne conveyances, Northern Homes is now the recordtitle holder of Lots 22, 24, 26, 28, 30, 32, 47, 49, 51, 53, 55, 57, and 59.

20. At all times relevant hereto, North Street and NOIihern Avenue were and are existingpublic ways in the City of NOlihampton.

21. Pursuant to a Final Judgment of the Hampshire County Probate and Family COUlirecorded in Book 3716, at Page 298, that cOUlidetermined that Alan R. Kirouac andPatricia M. Kirouac (Kirouacs) established their ownership by adverse possession of a4,000 square foot portion of the unnamed subdivision way (Final Judgment Parcel). Asshown on the Decision Sketch attached hereto, the Final Judgment Parcel is bounded byNorthern Avenue to the East, Lots 22 and 24 to the North, the remainder of the unnamedway to the West, and Lot 20 to the South. See Kirouac v. Vanasse, Probate Court CaseNo. 91E001G1 (1991).

22. Wetland boundaries on Lots 22 and 24 are as shown on plans filed with the NorthamptonConservation Commission for the proposed North Street Condominium (Exhibit 38) andas determined by the Commissioner's Order of Conditions (Exhibit 37).

23. A forty-foot right of way shown on the plans filed by Defendant Tofino Associates, Inc.,with the Northampton Planning Board (Exhibit 40) is in the same location as theunnamed subdivision way abutting Lots 49, 51, 53, 55, 57, 59, 61, 63, and 65, and Lots27,29, 31, 33, 35, 37, 39, 41, and 43 on the Plan.

24. The forty-foot right of way shown on an ANR Plan of Land in Northampton (Exhibit 41)is the same as the unnamed subdivision way abutting Lots 49, 51, 53, 55, 57, 59, 61, 63,65 and Lot 27 on the Plan.

25. The "Exist. fence to remain" shown on the plans filed with the NOlihampton PlanningBoard (Exhibit 40) is the same fence about which Plaintiff Waldron testified in herdeposition.

deed from the Lavallees to Living City contains language indicating an express easement in favor of Living City,purpOliing to grant" ... a right of way in common with others over the roadway forty (40) feet wide located at theSouthwesterly side of [Lot 3 7 as shown on Plan) for the purpose of passing and repassing on foot or with vehiclesfrom North Street over said roadway to the Northwesterly line of said Lot #37."

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1. Discussion

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An action to quiet title under G. 1. c. 240, S 10, is an action in rem brought under the

court's equity jurisdiction.7 See G. L. c. 185, S 1 (k);8 see also Bevilacqua v. Rodriguez, 460.

Mass. 762,768 (2011). "[IJn equity the general doctrine is well settled, that a bill to remove a

cloud from the land ... [requires thatJ both actual 'possession and the legal title are uriited in the

plaintiff." First Baptist Church of Sharon v. Harper, 191 Mass: 196,209 (1906). Here, Plaintiffs

Waldron, Mardas, Hathaway, and Hershkowitz, and Defendants Northern Homes and Living

,City claim both actual possession of and legal title to portions of the Unnamed Way. Plaintiffs

and Defendants have legal title to the way adjacent to their respective properties by operation of

the Derelict Fee Statute, G. L. c. 183, s589

The parties also seek declaratory relief under G. L. C. 231A.10 A party seeking

declaratory judgment under G. L. c. 231A must "set forth a real dispute caused by the assertion

by one party of a legal relation or status or right in which he has a definite interest and the denial

of such assertion by the other party, where the circumstances.,. indicate that, unless a

7 In Count III of the Complaint, Plaintiff brings ail action to quiet title and in Count IV brings an action toremove a cloud on the title. The Supreme Judicial Court in First Baptist Church of Sharon v. Hamer. 191 Mass. 196(1906), later restated in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), states that an action to quiet title is anaction to "remove a cloud from the land." Therefore Counts III and IV are read conjunctively.

, G, L. c. 185, ~ I(k) states the Land Court has exclusive jurisdiction over "[a]11cases and matterscognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved,including actions for specific performance of contracts,"

In addition to Counts III and IV, the parties seek further equitable relief under G.L, c. 185, Ii I(k), In CountIJ of the complaint Plaintiffs seek to prevent interference by Defendants with the rights of Plaintiff whileDefendants in their counterclaim request an order from the Court prohibiting Plaintiffs from- interfering with theirrights to the unnamed subdivision way.

9 See Statement of Agreed Facts No. 14.10 See Count I of the Complaint and Defendants' Counterclaim, First Claim for Relief.

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determination is had, subsequent litigation as to the identical subject matter will ensue." Ho£an

v. Ho£an, 320 Mass. 658, 662 (1947). "The actual controversy requirement ofG. L. c. 231A,

51, is ... liberally construed." Boston v. Keene Corp., 406 Mass. 301,304 (1989). "(AJn

express purpose of declaratory judgment is to '" afford relief from ... uncertainty and insecurity

with respect to rights, duties, s'tatus and other legal relations.'" Boston,406 Mass. at 304-05

(quoting G. L. c. 231A, 5 9). Count I of Plaintiffs' complaint and Defendants' counterclaim seek

to resolve the same issue, the purported existence of an easement over the Unnamed Way. I I

A. Ownership of the Fee and Rights in the Unnamed Way

As it is undisputed that Plaintiffs and Defendants own the fee in the portion of the

Unnamed Way abutting their respective properties, it is mmecessary to discuss the application of

the Derelict Fee Statute. 12 As such, Defendants now must establish they have an easement in the

Unnamed Way in order to use the portion of the way adjacent to Lots 65, 63 and 61 and Lot 27,

for ingress and egress. Defendants allege an easement over the Unnamed Way by estoppel,

implication, or both.

As set forth above, Vanasse and Kroll conveyed Lot 65 to the Menegats in 1922.

Through mesne conveyances Waldron now holds record title to Lot 65 and the easterly half of

Lots 61 and 63. Mardas' predecessors-in-title acquired record title from Vanasse who, in 1924,

conveyed Lot 27 by deed to the Callanans. Through mesne conveyances Mardas is now the

cun-ent record owner of Lot 27.

Northern Homes also traces its title to Vanasse. Vanasse deeded the lots currently owned

by Northern Homes to the Marins who then deeded the property to Donald 1.King. Edith 1.

11 Plaintiffs also seek title to the Unnamed V.,raythrough adverse possession or prescriptive easement andboth parties seek damages for trespass. These issues will be discussed below in footnote 17.

12 See Fact paragraph 8

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King, Administratrix of Donald I. King's estate conveyed the propeliy to the Matuseks who then

conveyed title to McCutcheon Development, LLC, from which Northern Homes acquired title.

In order to establish all easement by implication, the paliy asserting the easement must

show "(1) both dominant and servient estates once were owned by the same person or persons,

i.e., that there existed a unity of title and (2) a severance of that unity by conveyance ... ". Kitras

v. Aquinnah. 64 Mass. App. Ct. 285, 291 (2005). As set forth above, at one point in time the lots

currently owned by the paJiies were all a pali of the Vanasse paJ"celowned solely by VaJ1asse.

Therefore, the court must next determine the circumstances surrounding the severance of

common ownership of the relevant disputed portions of the Unnamed Way.

Plaintiffs argue that severance occurred in 1922 when Vanasse and Kroll conveyed Lot

65 to Menegats and in 1924 when Vanasse conveyed Lot 27 to the Callanans. Defendants

contend that the severance of title of the subdivision lots now owned by Northern Homes was in

193I, upon a conveyance from Vanasse to the Marins. This court finds that the severance of

common ownership that informs this court's decision were the conveyances that occurred in

1922 and 1924 when Vanasse conveyed lots 65 and 27 to the Menegats and Callanans

respectively. This court also holds that Vmasse did not retain aJ1easement over the Unnamed

Way adjacent to lots 65 and 27 at the time of those conveymces md did not have my such rights

after those conveyances. As a result of not retaining aJ1easement in the Unnamed Way, Vmasse

could not convey such a right to the Marins in 1931. It is a fundamental principal of law that a

grmtor cannot convey to a grmtee more rights in Imd than the grmtor has. Lombardi, Bailin,

Hovey, & Pill, Massachusetts Easements and Land Use Restrictions 1-38 (2003) (It is axiomatic

that a grmtee cannot receive an easement over land in which its grmtor has no rights).

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B. Implied Easement by Necessity

The party asserting an easement by implication bears the burden of proof: Mt. Holyoke

Realty Corp. Y. Holyoke Realty Corp., 284 Mass. 100, 105 (1933). The burden is heayier for a

grantor asseliing an implied easement by reservation than a grantee asseliing an implied

easement by grant. Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990). That is because

of "the rule that a deed is to be construed most strongly against the grantor [which] may render it

more difficult to imply an easement by reservation for the grantor's benefit than an easement by

grant for the grantee's benefit." Dale v. Bedal, 305 Mass. 102, 103 (1940).

An easement by necessity is implied for the benefit of the grantor when a parcel held in

common ownership is divided leaving the pOliion retained by the grantor landlocked. See

Nylander v. Potter, 423 Mass. 158, 162 (1996). "Easements by implication generally are created

when land under single ownership is severed and the easement is reasonably necessary for the

enjoyment of one of the parcels." Silverlieb v. Hebshie, 33 Mass. App. Ct. 911, 912 (1992).' As

explained in Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383,390 (2005), "a

conveyance ofland which renders the grantor's remaining land landlocked ordinarily gives rise

to an easement by necessity, based on the presumed intention of the grantor to retain access to

his remaining land." The necessity must arise at the time the parcel is divided and conveyed and

no more than a reasonable necessity is required by law. See New York & New England R.R. v.

R.R Commissioners, 162 Mass. 81,83 (1894); Perodeau v. O'Connor, 336 Mass. 472, 474

(1957). ImpOliantly, the existence of alternative acccess precludes the establishment of an

easement by necessity. See Nylander, 423 Mass. at 162, n.9; Silverlieb, 33 Mass. App. Ct. at

912.

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At the time the Waldron and Mardas propeliies were .conveyed, in 1922 and 1924,

respectively, the grantor, Vanasse, retait1ed ownership of the reniainder of the Vanasse Parcel.

The remainder of the Vanasse Parcel was not landlocked, n~r was it dependent on the portion of

Unnamed Way adjacent to lots 65 and Lot 27. Much of the i.emaining Vanasse Parcel directly

abutted either NOlihem Avenue or NOlih Street and the interior lots on the Plan could access

Northern Avenue by traveling along the remainder of the Unnanied Way, still owned by

Vanasse.

Defendants argue that an easement by nece.ssity arose because access to the subdivision

lots was created by the Plan, which depicted and contemplated the Unnamed Way as granting

access to all of the subdivision parcels. As shown on the Plan (and on the Decision Sketch

attached hereto), the Unnamed Way has two access points to public ways- one to Northern

Avenue and one to North Street. Thus, when Vanasse deeded the two lots (27 and 65), both .at

the intersection of North Street and the Unnamed Way, the remaining Vanasse Parcel and every

lot shown on the Plan had alternative access along the Unnamed Way to Northern Avenue, As a

result, tins court does not find that an easement by necessity arose in either 1922 or 1924. See

Silverlieb, 33 Mass. App. Ct. at 912 (COUlisunwilling to find easement by nec~ssitywhere

altemative access existed).

This court acknowledges that the Final Judgment of the Hampshire COU11tyProbate and

Family and Court, which gave ownership to a portion of the Unnamed Way to the Kirouacs,

resulted in an elimination of the access of the Ulmamed Way to Northern Avenue. 13 The Final

Judgment, however, was not entered U11tilMay 3,1991, decades <ftterlots 65 and 27 were

conveyed in the 1920's, and at the time of those conveyances, all of the subdivision lots had

IJ See Fact paragraph21. This portion of the Unnamed Way, including Jots20 and 45 is now owned byNorthern Avenue Condominiums as a result of that Final Judgment.

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adequate access t~ Northern Avenue along the Unnamed Way. 14 Therefore, Defendants' claim

of an easement by necessity must fail. Vanasse did not retain an easement by necessity over the

portion of the way adjacent to lots 65 and 27 when he deeded those two lots out, thereby

severing his ownership of them from the remainder of the Vanasse Pm:cel because at that time,

the land was not landlocked and there was an alternative route for him to access Northern

Avenue.

C. Implied Easement by Reference to Wayan Plan

Implied easements over ways shown on a plan arise when a plan is referenced in a deed

and the pmiies to the deed clearly intended to create an easement. See Boudreau v. Coleman, 29

Mass. App. Ct. 621, 628 (1990). "In the absence of. .. [an] express reservation, the conveyance

of land with reference to a plan creates such an easement, other than by necessity, 'only if clearly

so intended by the parties to the deed.'" Boudreau, 29 Mass. App. Ct. at 628 (emphasis added)

(quoting Scagel v. Jones, 355 Mass. 208,211 (1969)).

In such a situation, the "plan referred to in a deed becomes a pm of the contract so far as

may be necessary to aid in the identification of the lots and to determine the rights intended to be

conveyed." Reagan v. Brissey, 446 Mass. 452, 458 (2006) (quoting Jackson v. Knott, 418 Mass.

704,711 (1994)). Such intent is determined at the time cornman ownership of the parcel is

severed and is "to be gathered 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." Brissey, 446 Mass. at 458

14 Today; it is infeasible to travel over lots 22 and 24 in order to connect the Unnamed Way to NorthernAvenue because of wetlands in that area. See Fact paragraph 22. However, as stated above, at the time the Waldronand Iv1ardasprope11ies were conveyed in the 1920's, all of Vanasse's remaining lots had adequate access to NOIihernAvenue along the Unnamed Way.

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(quoting Labounty v. Vickers, 352 Mass. 337, 344 (1967)). Additionally, reasonable necessity

should also be considered "in determining if it was the presumed intent of the paJ1ies to a deed to

create an easement." Boudreau, 29 Mass. App. Ct. at 630.

This court finds that Defendants did not satisfy their burden to establish an easement by

implication based on reference to a plaJl. In teaching this conclusion, the c0U11100kedto the

1922 and 1924 deeds and the circumstances smrounding those conveyances to determine if, at

the time of severance of title, it was the clear intention of the parties to create an easement over

the Unnamed Way.

This com! looks first to the Plan to determine the intet}t of Vanasse. The Plan depicting

the subdivision was not created by Vanasse, but rather by either Roberts or her heirs. This raises

the question as to whether it was the intention of Vanasse to further subdivide the land and

utilize the Unnamed Way for ingress and egress, or whether Vanasse merely inherited the Plan

when he acquired a portion of the Roberts Homestead. Additionally, when the Roberts

Homestead was divided creating the Vanasse Parcel and the Moriarty Parcel, the line dividing

the two parcels bisected Lot 32. Vanasse, however, never filed an amended subdivision plan nor

redrew the boundary lines for Lot 32 to account for the bisection. 'Even though Vanasse adopted

the Plan to identify by lot numbers the land he subsequently conveyed, it is not clear from the

record that he intended to create an easement over the Unnamed Way when he conveyed lots 65

and 27 in 1922 and 1924 respectively. Both lots had frontage on a public way (North Street) so

neither needed rights along the Unnamed Way and, as set forth above Vanasse himself had other

options for access from his remaining land to two public ways.

In a further attempt to glean the intention of the parties from the record instruments, tins

court reviewed other deeds. In a 1921 deed from Vanasse to Kroll, in which Vanasse conveys a

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one-half interest in Lot 65 to Kroll, Lot 65 is described with reference to the Plan and also as

"l'lorthwesterly along a contemplated street" (Unnamed Way Boundary). Approximately two

months later, Vanasse issued a corrective deed in which he properly changes Lot 65's Ulmamed

Way Boundary from northwesterly to northeasterly, changing the language from "Northwesterly

along a contemplated street" to "Northeasterly by an open way." When Vanasse and Kroll

deeded Lot 65 to the Menegats in 1922, the lot is also described as bounded "Northeasterly by

an open way." Additionally, in 1924 when Vanasse conveyed Lot 27 to the Callanans, the deed

described Lot 27's Unnamed Way Boundary as "Southwesterly by an open way. "

The couli notes, as do Plaintiffs, that the designations "street" and "way" are sometimes

used interchangeably, and the difference in language is not significant. More significantly, it is

the fact that the direction of the bound was incorrect and needed to be changed. In addition, the

phrase Vanasse used to describe the Unnamed Way Boundary changed from "along" to "by."

This difference also creates some ambiguity as Vanasse's intention with respect to whether he

meant to retain any fee in the Unnamed Way abutting lots 65 and 27, now owned by Plaintiffs

Waldron and Mardas, respectively. Taken with subsequent deeds, this court concludes that he

did not so intend.

In 1931, approximately ten years after conveying lots 65 and 27, Vanasse conveyed the

majority of the Vanasse Parcel including all of the interior lots shown on the Plan to the Marins.

In the Marins deed, Vanasse did not make reference to any rights in the Unnamed Way, but he

conveyed referencing lot numbers on the Plan.15 The failure to include an easement along the

Unnamed Way in the 1931 deed to the Marins is consistent with Vanasse's failure to retain rights

over it in 1922 and 1924 and fuliher indicates that he did not think he had the retained right to

grant one to the Marins, at least over Lot 27 and Lot 65. Ifit was his intention to create an

15 Lots 6, 20, 22, 24, 26, 28, 30, 32, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49,51,53,55,57,59,6], and 63.

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easement to access North Street in 1922 and 1924, Vanasse likely would have included an

easement in the 1931 deed to the Marins, when he conveyed his remaining interior lots. Also,

Vanasse did not make any conveyances of the remaining subdivision lots between 1924 and the

1931 and he never staked out or began construction of the U1111amedWay ..

Lastly, inasmuch as reasonable necessity is one factor the court should consider in

asceliaining at the parties' intent to create an easement by reference to a plan, this cOUli notes

that when lots 65 and 27 were severed from the Vanasse Parcel;the remainder of the parcel had

access to NOlihern Avenue by traveling over the portion of the Unnamed Way not adjacent to

lots 65 and 27. See Boudreau, 29 Mass. App. Ct. at 630 (stating' there was no evidence

indicating the land would be landlocked without use of the ways shown on the plans). Therefore,

. at the time of severance, it was not reasonably necessary for the remaining subdivision lots to use

the portion of tIre Unnamed Way adjacent to lots 65 and 27 because a reasonable alternative

existed.

"It is well established that where land is conveyed with reference to a plan, an easement

is ... created only if clearly so intended by the parties to the deed." Duddy v. Mankewich, 75

Mass. App. Ct. 62, 67 (2009). A clear intention can be established notwithstanding the fact that

a grantor conveyed individual lots without either expressly reseniing rights in the way or

expressly granting a right of way. See Scagel, 355 Mass. at 210; Cheever v. Graves, 32 Mass.

App. Ct. 601, 608 (1992). However, this court cannot fInd on tllis record a clear intention of the

paJiies to create an easement over lots 65 and 27 when looking at the 1922 and 1924 deeds and

the circumstances surrounding those conveyances. As a result, this court holds that Defendants

have failed to establish an easement by implication based on reference to a plan.

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D. Easement by Estoppel

Cases recognizing the creation of an easement by estoppel fall into two general

categories. First, when a grantor conveys land that is bounded on a street or way, the grantor and

those claiming under the grantor are estopped from denying the existence of the way and the

grantees' rights therein, whether or not the street or way is currently in existence. Patel v.

Plalming Bd. of North Andover, 27 Mass. App. Ct. 477, 482 (1989). Second, when a grantor

conveys land in reference to a recorded plan on which a street is shown, the grantor and those

claiming under the grantor are estopped from denying the existence of the street. Id.

It is well settled that an easement created by estoppel, under either set of circumstances,

estops the grantors and their successors in title from denying the existence of an easement. See

Id. (emphasis added). However, the doctrine of easement by estoppel in this commonwealth has

not been expanded to estop the grantees and their successors in title from denying the existence

of an easement. See Id. (emphasis added).

Moreover, Massachusetts has declined to find easements created by traditional notions of

estoppel based on conduct or a representation, rather than by describing land in a deed or

showing it on a plan being bounded on a way. Lombardi et aI., supra, at I 38. The Appeals

Court in a I :28 decision issued in 2009, acknowledged that Patel may have left open the question

as to whether an easement can be created on general estoppel principles but declined to address

this question, leaving intact case law limiting easements by estoppel to the benefit of grantees.

Blue View Const. v. Town of Franklin, 07-P-1950 (Memorandum and Order Pursuant to Rule

128 (2009)).

As set forth above, at one point in time the lots cun-ently owned by the paliies were all a

part of the Vanasse Parcel owned solely by Vanasse. At the time lots 65 and 27 were conveyed

15

in the 1920's, title to the remainder of the parcel was held by Vanasse. Defendants subsequently

took title to a portion of the property that was held by Vanasse after lots 65 and 27 were deeded

out. Therefore, at the time the Mardas and Waldron properties were conveyed, Defendants took

under the grantor and Plaintiffs took under the grantees. As the doctrine of easement by estoppel

has not been expanded in Massachusetts to general estoppel principles and remains within the

purview of grantees only, Defendants, as grantors, are unable to assert a claim for easement by

estoppel. For tillSreasons, the cowi holds that Vanasse did not retain a right of way over lots 65

and 27 following the 1922 and 1924 conveyances through this doctrine.

F. Conveyances Post 1924

Defendants argue that an easement was created over the portion of the Unnamed Way

adjacent to Plaintiffs' lots in 1931, upon the conveyance of Lots from Vanasse to the Marins."

However, a basic principal of law is that a grantee cannot receive an easement if his or her

grantor has no rights. Lombardi et aI., supra, at r 39. The grantor must either own the land or

have easement rights in the way for an easement to be created. rd.

After the conveyances of Lots 65 and 27 in the 1920's, with no reservation of an

easement by Vanasse, the Menegats and the Callanans owned the portion of Unnamed Way

abutting their respective lots in fee, and were not subject to an easement. Thus, in 1931, Vanasse

could not grant the Marins an easement because he did not have one.

Fw.thermore, an easement by estoppel was not created as a result of the 1931 conveyance

from Vanasse to the Marins. Courts have continuously treated a grantor's ownership of

adjoining land as a linlit on the extent of an easement by estoppel. Burnham v. Mahoney, 222

Mass 524, 528 (1916) ("A right of way by grant would have been created to use the street

16 See Footnote IS for lots conveyed.

16

throughout its length so far as it extended over the grantor's land or was his to grant"); see also

Hennessey v. Old Colony & Newport Railroad Co., 101 Mass. 540, 540 (1869) ("the whole.,.

extent of tIle doctrine is that, a grantor ofland, describing the same by a boundary on a street or,. ~'

way, ifhe be the owner o/such adjacent land, is estopped from setting up any claim, or doing

any acts inconsistent with the grantees use of the street or way." (emphasis added)). Before

assuming an easement by estoppel exists, a 'court must first determine if the grantor either owned

the land or had easement rights in the way. Lombardi Et a!., supra, at 139. This couti finds that

an easement by estoppel could not be created in 1931 over lots 65 and 27 because Vanasse

retained no rights in the Unnamed Way.

As explained above, in 2007, the Lavallees conveyed Lot 37 to Defendant Living City,

granting:

[A] right of way in common with others over the roadway forty (40) feet widelocated along the Southwesterly side of the above-conveyed premises for thepurpose of passing and repassing on foot or with vehicles from North Street oversaid roadway to the Northwesterly line of said Lot #37.

Such description indicates a clear intent by the p31iies t6 the deed to convey to the grantees 311

easement for ingress 3l1degress on and over a portion of Unnamed Way, as described in the

.deed. However, the Lavallees did not have the ability to grant such an easement.

Lot 37 was a p31i of the conveyance from Vanasse to the Marins in 1931. Lot 37 was

then conveyed from the Marins to the Lavallees in 1942. That deed is no/part of the record and

it is therefore unknown if the Marins granted the Lavallees a right of way over lots 65 and 27 to

access North Street. However, it is irrelevant if the deed from the Marins to the Lavallees recites-' '~. ...'

that an easement was granted because they, like Vanasse, had not easement rights to grant. For

this reason this court finds that Living City does not have.an easement to access North.Street., ~ - ~ ..

over those pOliions of the Unl1amed Way adjacent to Plaintiff s' properties as shown on the PI311..::; .t'.

17

For the reasons set forth above, this COUl1concludes that Defendant Living City and

Defendant N0l1hern Homes have failed to satisfy their burden of proof and have not established

that they have easement rights over the p0l1ion of the UIU1amedWay adjacent to Plaintiffs'. 17propertIes.

Judgment will issue in accordance with this decision.

1~;:;J(ao~Kat F. ScheierChief Justice

Dated: October 22,2012

17 The court declines to opine on the issue of the extinguishment of the easement as it finds that no sucheasement, by estoppel, necessity, or implication, arose. Additionally, and for the same reasons, this Court does notrule on the adverse possession and prescriptive easement claims of Plaintiffs. Finally, this court notes that whileMary Now is a named Plaintiff, there do not appear to be any claims directed by Defendants against her property(Lot 25 on the Plan.)

Plaintiffs in Count VII also allege a claim for trespass. As this Court fmds that no easement exists in theportion of tile Unnamed Way adjacent to the Waldron and Mardas properties, Defendants trespassed on tile land ofPlaintiffs when traversing over it to reach their land. Plaintiffs, however, do not seek damages for hann, if any,caused by Defendants to their land and no evidence supporting damages was presented at triaL

18

DECISION SKETCH08 MISC 374551

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Homes

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IPlaintiffsHathaway

andHershkowitz

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NORTH STREETVanasseParcel

65(typ.) .

Lot. Numbers on plan recordedin Plan Book 3 Page 76

Hampshire County Registry of DeedsMoriartyParcel

,.,,

•

COMMONWEALTH OF MASSACHUSETTS

LAND COURT

DEPARTMENT OF THE TRIAL COURT

HAJv:[PSHIRE, ss.

ELIZABETH C. WALDRON, PAUL A.MARDAS, STEPHEN B. HATHAWAY,MARIE HERSHKOWITZ, LAWRENCER. TATRO, KAREN K. TATRO, EILEENO'KANE, and MARY NOW,

Plaintiffsv.

TOFINO ASSOCIATES, INC.,NORTHERN AVENUE HOMES, INC.,LIVING CITY PROPERTIES, INC., andAVETUS VANASSE a/kJa AVETUS G.VANASSE and his HEIRS,

Defendants

08 MISC 374551 (KFS)

JUDGMENT

Plaintiffs initiated this action on March 14, 2008, by filing a seven-count complaintseeking to establish and clarify the paliies' rights of ownership and use of two ways shown on arecorded plan of land in NOlihampton. Defendants' counterclaim sought a declaration thatNorthern Avenue Homes, Inc. (Northern Homes) and Living City Properties, Inc. (Living City)have an easement over one of the two ways (Ulmamed Way), and that Plaintiffs be barred frominterfering with Defendants' rights.

Several claims and parties were dismissed from the case before and during trial, leavingfor disposition only the claims relating to the use of the Unnamed Way among PlaintiffsElizabeth C. Waldron, Paul A. Mardas, Stephen B. Hathaway, Marie Hershkowitz and MaryNow, and Defendants, Northern Homes and Living City.

A two-day trial was held July 12 and 13, 20 10, at which five witnesses testified in personand one deposition was introduced in lieu aftestimony. Fifty-six exhibits and an agreedstatement offacts were introduced in evidence. A decision of today's date in favor of Plaintiffshas issued. In accordance with that decision, it is hereby

ADmDGED and DECLARED that Defendants Northern Avenue Homes, Inc., andLiving City Properties, Inc., do not have easement rights of access and egress over the portion of

the Unnamed Way, so-called, adjacent to Lots 65, 63, 61, 27, 39, 41, and 43, the propertiesowned by Plaintiffs Waldron, Mardas, Hathaway, and Hershkowitz, all as shown on a plan ofland entitled "Plan of Land, Estate of Mrs. Caroline M. Roberts, dated May 29, 1913, recordedFebruary 17, 1915, with the Hampshire County Registry of Deeds in Book 3, at Page 16" (Plan).Ii is further

ADmDGED and ORDERED that Defendants and those acting by, through, or wlderthem, are prohibited from acting in such a way as to interfere with the rights of Plaintiffs to usetheir Lots shown on the Plan fi"eeand clear of any access rights in favor of Defendants.

\~JyBYthe Court (Scheier, C.1.)

'j Attest:

Deborah J. PattersonRecorder

Dated: October 22, 2012

ATRUE copyAl'l"!=ST:~- i I <rOctt:.'+J.r~""\"" '"to 01\.0.. \r\ ..J . r

.•• RECORDE.R

"