HIGH PINES CORP v. HIGH PINES LLC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In a clearly written and thoroughly researched decision, a judge of the Superior Court granted the motion for summary judgment of the plaintiffs, High Pines Corp. (corporation) and Indian Pond Country Club, Inc. (country club), on counts one and two of a three-count complaint filed against the defendants, High Pines, LLC (LLC) and Frederick W. Tonsberg.⁴ Based on our review of the record, the judge was correct in concluding that there were no material facts in dispute and that the plaintiffs were entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). Accordingly, we affirm.

There is a lengthy history of business dealings and lawsuits between the parties. The following operative facts are undisputed. On March 28, 2016, the corporation sold two lots, 430-21 and 4-24, in a subdivision known as “Indian Pond Estates IV” (subdivision) to the LLC. Lot 430-21 was conveyed with the benefit of an access and utility easement previously granted by the country club to the corporation dated May 6, 2014, and recorded in the Plymouth County Registry of Deeds (2014 easement). The 2014 easement across a lot owned by the country club (lot 4-26) reads as follows:

“The grant of this access and utility easement over Lot 4-26 gives the grantee along with their successors and assigns the perpetual right and easement to bring vehicles and other means of traffic and necessary utilities over such lot to the adjacent lot 430-21 as shown on said plan for the purpose of constructing a roadway and utilities and maintenance of said roadway to a condominium development to be built on lot 430-21.”5

The deed conveying lots 430-21 and 4-24 also contained the following language relating to the use of Country Club Way:

“Said parcels are conveyed together with the right to use Country Club Way as shown on said plans, in common with others entitled thereto, for all purposes for which streets and ways are commonly used in the Town of Kingston. No fee in Country Club Way as shown on said plans ․ is hereby conveyed.”

The corporation and the LLC were each represented by independent counsel in connection with the conveyance, and there was an exchange of the relevant documents prior to the closing. Neither the LLC nor its attorney raised an objection to the language of the deed prior to its recording.

Prior to the conveyance, EBF, LLC, an entity controlled by the LLC or Tonsberg, acquired the rights to two other lots that are adjacent to lots 430-21 and 4-24, but are outside the subdivision. We refer to these lots as the Arrowhead lot (consisting of eight acres) and the O'Brien lot (consisting of twenty-one acres). Neither the Arrowhead lot nor the O'Brien lot has frontage on the private roads of the subdivision.

On or about June 30, 2016, Tonsberg began removing soil, fill, and trees from the Arrowhead and O'Brien lots. The contractors hired by Tonsberg to perform this work transported heavy equipment over Country Club Way and over the 2014 easement across lot 4-26.

Discussion. We review the grant of summary judgment de novo. See Bernstein v. Planning Bd. of Stockbridge, 76 Mass. App. Ct. 759, 765 (2010). In count one of the complaint, the corporation asserted a claim of trespass against the defendants, alleging that the defendants' use of Country Club Way, which at all relevant times was a private way in the town of Kingston, to access the Arrowhead and O'Brien lots was without authority. The scope of an easement is determined by reference to “the parties' intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer.” McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 364 (1996). The language of the instrument containing the easement is controlling unless there is an ambiguity. See Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). Here, the language in the deed is not ambiguous; it creates only a limited right to use Country Club Way for purposes of accessing and developing lots 430-21 and 4-24. The right to use Country Club Way “for all purposes” did not encompass the right to use it to transport heavy machinery to and from property beyond the subdivision.⁶ See McLaughlin, supra at 364-365; Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 (2005). The defendants could not reasonably have relied on language in the deed or the recorded plans to give them unfettered use of Country Club Way. No rule of construction provides such a right. Our interpretation is consistent with established easement law.

With regard to count two, the question is whether the hauling of material removed from the Arrowhead and O'Brien lots in eighteen-wheel trucks over lot 4-26 was a permissible use of the 2014 easement. That easement, as noted earlier, allowed the LLC to bring vehicles and utilities over lot 4-26 “to the adjacent lot 430-21” for the purpose of building a condominium development on lot 430-21. By its plain and unambiguous terms, this language created an easement appurtenant to lot 430-21. “A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.” Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678–679 (1965). As the judge below observed, the fact that access to the O'Brien lot was necessary to perform work that benefited lot 430-21 is of no consequence. In Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 683 (2016), the Supreme Judicial Court expressly rejected an argument that there should be exceptions to this “bright-line” rule.

The defendants' remaining arguments do not require extended discussion. The judge did not abuse his discretion in declining to grant the defendants' motion to continue the summary judgment hearing to permit additional discovery because they failed to satisfy the requirements of Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). The defendants' argument that we should consider Country Club Way as a public way fails because the way was never accepted by the town of Kingston under G. L. c. 82. Finally, there is no merit to the defendants' claim that the effect of the injunctive relief ordered by the judge was to prohibit them from using Country Club Way. Instead, the injunction only disallowed the use of Country Club Way and the 2014 easement to access the Arrowhead and O'Brien lots.

Judgment affirmed.

FOOTNOTES

4.   After the parties voluntarily dismissed all remaining claims and counterclaims with prejudice, final judgment entered on April 11, 2018.

5.   Plan 90 shows the reconfiguration of lots 4-25, 4-26, 4-27 and 4-28 which were merged to create a new lot 4-26.

6.   There is no evidence that the corporation intended to create an easement in gross or a public easement.