RIVERA v. MONTGOMERY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Though involving an old road in Chilmark on the island of Martha's Vineyard, the use of which may well date back to the time when only Native Americans inhabited the island, the principal issue before us in this case is simply whether the plaintiffs, George and Robin S. Rivera, presently have the right to install utilities under Quenames Road (Quenames Rd.) to service a new home they wish to construct on their property. A Land Court judge decided the issue on a case stated basis and concluded that the plaintiffs have an easement by estoppel over Quenames Rd. and have the right, pursuant to G. L. c. 187, § 5, to install utilities under the road. In addition, having been specially assigned to act as a Superior Court judge on the neighbors' complaint that the plaintiffs or their agents had trespassed on their property and removed brush in preparation for installing an electrical line, the judge dismissed those claims. We affirm in part, vacate in part, and remand the case for further proceedings consistent with this memorandum and order.

Background. We draw the facts, as the judge did, “from the undisputed facts, the exhibits, [and] the testimony at trial,” deferring to the judge's assessment of credibility of the trial testimony. See North Adams Apartments Ltd. Partnership v. North Adams, 78 Mass. App. Ct. 602, 607 (2011) (deference given to trial judge's credibility assessments of experts).⁴ We note where the inferences we draw from the case stated differ from those drawn by the judge.

1. Quenames Rd. and the parties' properties. Quenames Rd. is a narrow private way that runs in a southerly direction from its “T” intersection with what is now known as “Bethia's Cross Path.”

Since December 2003, Bridget Montgomery and Michael Spangler have owned a 4.4 acre lot adjacent to the northwest end of Quenames Rd. Since February 2010,⁵ Holladay Handlin has owned a five-acre lot on the northeast end of Quenames Rd., roughly across from Montgomery and Spangler, and abutting Quenames Rd. to the west and Quansoo Road (Quansoo Rd.) to the north.⁶ Since October 2004, the Riveras or their successors have owned lots totaling approximately 15.7 acres south and east of the Handlin lot. The Riveras' original lots' western bound abuts Quenames Rd. and the Handlin property; the western portion of the Riveras' original lots' northern boundary abutted the Handlin property and the eastern portion's northern boundary abutted Quansoo Rd. At the time the Riveras acquired their property, there existed two houses on the Rivera property, one accessed by a driveway from Quansoo Rd. and another accessed by a driveway from Quenames Rd. The Riveras have further subdivided their property pursuant to plans endorsed by the planning board as “approval under the subdivision control law not required.” ⁷

2. Procedural background. The impetus behind the present litigation is the Riveras' desire to erect a home on their southernmost lot abutting Quenames Rd. and install electrical utilities under Quenames Rd. to service it.⁸ Montgomery, Spangler, and Handlin (collectively, neighbors) contend the Riveras have no easement or other right to install utilities under Quenames Rd. The Riveras commenced an action in the Land Court seeking a declaration that they have rights to install utilities under Quenames Rd. In the Superior Court, the neighbors commenced an action seeking damages against the Riveras for trespass on their properties and “removal of trees, timber wood and/or underwood” from the portion of Quenames Rd. that abuts the neighbors' properties. As noted above, the Land Court judge was specially assigned to hear the Superior Court case, as well.

3. The judge's decision. The judge resolved the Land Court case by tracing the history of the properties back to at least 1826, when, the judge found Jonathan Mayhew, Sr. owned all of the parties' properties. The judge found that Jonathan, Sr. died in 1826, and devised his property to his two sons, Jonathan Jr., and Gilbert. By a partition deed dated April 29, 1826, the Mayhew brothers divided the property, whereby Jonathan, Jr. took title to the property to the east of the division line and Gilbert took title to the property to the west of the division line. Based on expert evidence, recorded deeds and plans, and historical maps, the judge concluded that Jonathan Mayhew, Jr., by virtue of the 1826 partition deed, took ownership to all of the parties' property on both sides of Quenames Rd.

Shortly after partitioning Jonathan Mayhew, Sr.'s property, Jonathan, Jr. died and, by an 1827 deed, the administratrix of his estate conveyed what is now the Handlin and Rivera properties, to Samuel Hancock, describing the property as bound by Quenames Rd.⁹ On these facts, the judge concluded that because the 1827 deed to Samuel Hancock described the Handlin-Rivera parcel as bound by Quenames Rd., Samuel, predecessor to Handlin and Rivera, acquired an easement by estoppel for the use of Quenames Rd. and Jonathan, Jr.'s estate, and all who claim under it are estopped from denying the existence of the street or way. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965). The judge concluded that Montgomery and Spangler are thereby estopped from denying that the Riveras have an easement by estoppel for the use of Quenames Rd.¹⁰ The judge also concluded that as the Handlin-Rivera property was subdivided, each lot retained the benefit of an easement by estoppel to use Quenames Rd. Having found that the Riveras have an easement by estoppel and are entitled pursuant to G. L. c. 187, § 5, to install utilities under the road, the judge dismissed the neighbors' trespass claim.

Discussion. 1. Right to install utilities in Quenames Rd. Historically, a general right of way did not necessarily include a right to lay pipes or electrical lines under a way. See Ward v. McGlory, 358 Mass. 322, 325 (1970). Since 1975, however, G. L. c. 187, § 5, has provided in pertinent part that “[t]he owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service,” provided such use is not inconsistent with and does not interfere with others' existing uses. While conceding that the Riveras have access rights over Quenames Rd., the neighbors contend, as their expert title examiner put it, “in order to avail themselves of the statute [G. L. c. 187, § 5], those rights must be expressed in the deed,” and whatever access rights the Riveras have, they do not include rights under chapter 187.

We agree that the burden is on the Riveras to demonstrate that they have an “easement by deed” over Quenames Rd., where it abuts the neighbors' properties such that they enjoy the rights granted by G. L. c. 187, § 5. See Perry v. Nemira, 91 Mass. App. Ct. 12, 16 (2017). See also Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933) (“The burden of proving the intent of the parties to create an easement which is unexpressed in terms in a deed is upon the party asserting it”). The deeds at issue contain no language expressly granting or reserving an easement for the benefit of the Rivera property, apart from consistently describing the property as bound by Quenames Rd. However, it is a principle of long standing that “[w]hen a grantor conveys land as bounded by a street or way, that is not merely a description by the grantor, and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent of land so bounded on the way, and the grantee acquires by the deed a perpetual easement and right of passage on, up, and over it. This is a right not only coextensive with the land conveyed, but for the entire distance of the way, as it is then actually laid out or clearly indicated and prescribed.” Frawley v. Forrest, 310 Mass. 446, 451 (1941). Moreover, in Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 439 (2006), we held that such an implied easement by estoppel constitutes an easement “by deed” for purposes of G. L. c. 187, § 5.

The record reveals that in 1827, at a time when she owned at least the northern end of Quenames Rd. at issue here and all of the parties' properties, the administratrix of Jonathan, Jr.'s estate conveyed the Handlin and Rivera properties as a single parcel and described it as bound by Quenames Rd. We agree with the judge that the properties thereby acquired an easement by estoppel over at least all of the northern end of Quenames Rd. Montgomery and Spangler are estopped from denying the existence of the easement. As the larger Handlin/Rivera lot was subdivided, the easement remained appurtenant to each lot. See Perry, 91 Mass. App. Ct. at 16-17.

The neighbors contend that no easement by estoppel arose here because “the judge incorrectly (1) located the division line; (2) identified the [n]eighbors as successors to common grantors; and (3) located historic Quenames Rd.” We disagree with each contention.

A. The 1826 division line and common grantor. In an effort to refute the judge's finding that the parties all had a common grantor in Jonathan Mayhew, Jr., the neighbors argue that the Riveras' experts and the judge relied on unreliable and illegible documentary evidence and outdated physical evidence. They contend that even the Riveras' expert avoided deciphering some of the deeds initially. In addition, they point to the Riveras' expert's acknowledgement that, historically, Martha's Vineyard surveys were of “poor quality,” containing rough distances and bearings, drafting errors, and imprecise locations. Finally, the neighbors point to testimony from the Riveras' expert surveyor, Douglas Dowling, that the lack of permanent boundaries made locating the Rivera property on the ground difficult. In short, the neighbors argue that the absence in 1827 of modern survey plans and precise deed descriptions based on modern technology and permanent boundary markers renders it impossible for the Riveras to meet their burden of proving the location of the partition line.

We disagree. To be sure, the historical deeds in this case, as in many others, are difficult to read and markers that authors might have once thought would be permanent, have disappeared.¹¹ That does not mean, however, that as a matter of law the Riveras were unable to locate the division line of the original partition. “The location on the ground today of what was described in [an 1826 deed] presents a question of fact ․ to be decided ‘on all the evidence, including various surveys and plans.’ ” Bernier v. Fredette, 85 Mass. App. Ct. 265, 268 (2014), quoting Hurlbut Rogers Mach. Co. v. Boston & Maine R.R., 235 Mass 402, 403 (1920). “ ‘[O]wnership of adjacent parcels, the contents of other instruments in the chain of title, and the subsequent action of the parties,’ may be considered in resolving a boundary dispute” (citation omitted). Bernier, supra at 272.

Here, Douglas Dowling, a professional surveyor, who has worked on Martha's Vineyard for over forty years, testified that he first located the division line during work he or his company did in the area west and east of Quenames Rd. in the early 1980s. He explained that locating the division line was a tool he used to locate on the ground property lines identified in individual deeds in the area, including the Handlin property, the Montgomery-Spangler property, other properties abutting the division line to the west, properties farther west and east of the division line, as well as ways mentioned in the partition deed. He was able to locate described boundaries on the ground. He testified that although he did run into errors in deed references, which he noted was fairly typical, he was able to navigate around those errors and was “quite positive” that he and his colleagues had correctly identified the division line. In addition to Mr. Dowling's testimony, the Riveras' title expert noted that the long narrow shape of the Montgomery-Spangler lot may reasonably be explained by the fact that it is bound by Quenames Rd. on its eastern boundary and the division line on its westerly boundary. This commonsense explanation corroborates the Riveras' experts' efforts to locate the division line on the ground and we find it persuasive. We discern no reason to disturb the judge's findings that (1) the division line was consistent with the western lot line of the Montgomery-Spangler property, and (2) all of the property at issue derives from the common grantor, Jonathan Mayhew, Jr.¹² To the extent the neighbors quibble with the descriptive “substantially consistent,” we note that there was no need to locate the precise western boundary of the Montgomery-Spangler lot; it was only necessary to determine that Jonathan Mayhew, Jr.'s portion of the partitioned property included the portion of the Montgomery-Spangler lot that abuts Quenames Rd. to establish that at least with regard to the portions of their property that abut Quenames Rd., all of the parties had a common grantor.¹³

B. Location of Quenames Rd. The neighbors' argument that the Riveras did not prove that Quenames Rd. is in the same location today as it was in 1827 is similarly unavailing. Although noting that the Riveras' experts' opinions that Quenames Rd. is in the same general location today were based on the 1827, 1833, and 1873 deeds; maps of the area dating 1850, 1858, and 1891; and surveys of the area, they argue that those sources were unreliable. Again, we disagree. Our own review of the maps reveals a roadway in the same general location of today's Quenames Rd. on the 1850, 1858, and 1891 maps. That Quenames Rd. is not expressly identified on all of the maps does not make it less visible. Moreover, we discern no change in property descriptions that might suggest Quenames Rd. had been relocated. Further, that there is some discrepancy as to whether the road extended to the marsh or the ocean, far south of the Rivera property, is irrelevant to these proceedings involving only the northern end of Quenames Rd. Neither expert identified any signs on the ground that Quenames Rd. existed in another location and the neighbors' expert conceded she had no “hard evidence” that there was ever another location for Quenames Rd. While we are well aware that the Riveras bore the burden of proving the existence of their easement, they were not required to refute the neighbors' sheer speculation that Quenames Rd. might have changed location at some point in history.

2. Merger. The judge found, and neither party disputes, that the Montgomery-Spangler and Rivera properties came into the common ownership of the estate of Herbert R. Hancock sometime before December 11, 2003, when Wilma, individually and as executrix of the will of Herbert R. Hancock, conveyed the Montgomery-Spangler property to them. On appeal, the neighbors argue that any easement the Rivera property might have acquired was extinguished by merger when the Rivera and Montgomery-Spangler properties were held jointly by the estate of Herbert Hancock. Under the common law-doctrine of merger, easements are extinguished “by unity of title and possession of the two estates [the dominant and the servient], in one and the same person at the same time.” Ritger v. Parker, 8 Cush. 145, 146 (1851). “When the dominant and servient estates come into common ownership there is no practical need for the servitude's continued existence, as the owner already has ‘the full and unlimited right and power to make any and every possible use of the land.’ ” Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 498 (2008), quoting Ritger, supra at 147. Once extinguished, easement rights cannot be revived merely by severing the dominant and servient estates. See Cheever v. Graves, 32 Mass. App. Ct. 601, 607 (1992). “They ‘must be created anew by express grant, by reservation, or by implication.’ ” Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682, 684-685 (2012), quoting Cheevers, supra. “Where during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication.” Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 78 (2004), quoting Sorel v. Boisjolie, 330 Mass. 513, 516 (1953). Such an “easement arises not so much from necessity alone as from the presumed intention of the parties ․ That presumed intention 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” (quotations and citations omitted). Zotos v. Armstrong, 63 Mass. App. Ct. 654, 657 (2005).

The issue of merger was raised only in passing at trial and the judge does not address it in his decision. However, because the undisputed facts indicate that the Rivera and Montgomery-Spangler properties were jointly held in the estate of Herbert Hancock before Montgomery and Spangler took title to their property, we remand to the judge for consideration in the first instance whether the easement over the Montgomery-Spangler portion of Quenames Rd. was extinguished by merger, and, if so, whether the easement was revived by implication in the circumstances of the subsequent conveyances.¹⁴

3. Trespass. Because the Riveras have an easement by estoppel and the right to install utilities over the portion of Quenames Rd. owned by Handlin, Handlin's claim that the Riveras or their agents trespassed on that portion of the Handlin property was correctly dismissed. To the extent the Superior Court complaint alleges that the Riveras or their agents trespassed on the portion of Quenames Rd. that abuts the Montgomery-Spangler property, that claim is reinstated for further consideration following resolution of the merger issue. To the extent the Superior Court complaint alleges trespass on portions of the neighbors' properties that lie outside Quenames Rd., we vacate the dismissal of those claims and remand the matter for further consideration by the judge.

Conclusion. So much of the judgment in Land Court No. 16 MISC 000697 as declares that the plaintiffs have an easement by estoppel over, and the right to install utilities under, that portion of Quenames Rd. that abuts the Montgomery-Spangler property, is vacated and that issue is remanded for further proceedings consistent with this memorandum and order. In addition, so much of the Land Court judgment that allows a copy of the judgment to be filed in the registry is vacated as it pertains to the Montgomery-Spangler property. The Land Court judgment is otherwise affirmed. So much of the judgment in Superior Court No. 1774CV00021 as dismisses the trespass claims concerning the Montgomery-Spangler property and the portion of the Handlin property that lies outside Quenames Rd. is vacated and those reinstated claims are remanded for further proceedings consistent with this memorandum and order. The Superior Court judgment is otherwise affirmed.¹⁵

So ordered.

vacated in part and remanded; affirmed in part

FOOTNOTES

4.   Generally, when a judge issues a “decision on a case stated basis, we review it de novo, drawing our own inferences of fact and reaching our own conclusions of law.” Hickey v. Pathways Ass'n, 472 Mass. 735, 743 (2015). See Ware v. Hardwick, 67 Mass. App. Ct. 325, 326 (2006). Here, there appears only to be agreement as to the evidence the judge could consider, “rather than a ‘case stated’ of all pertinent facts from which the judge might draw inferences.” Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558, 568 (1986). Moreover, the judge allowed cross-examination of the parties' experts, and the judge's credibility determinations from cross-examination are entitled to deference. Still, “[w]hen the judge's decision is based on an interpretation that arises ‘solely from the documentary evidence,’ an appellate court has the ‘same interpretive powers as the Land Court judge.’ ” Paull v. Kelly, 62 Mass. App. Ct. 673, 680 (2004), quoting Darman v. Dunderdale, 362 Mass. 633, 637 (1972). While we give deference to the weight the judge gave the experts' testimony on cross-examination, see Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 127-128 (2009), our review is largely de novo.

5.   The property was transferred to Holladay Handlin by David and Holladay Handlin, who purchased it on January 27, 1984.

6.   Handlin's property's northern boundary abuts Quansoo Rd.

7.   In 2005, the Riveras created a 3.1 acre lot containing the house accessed from Quansoo Rd. and sold it. They have divided their remaining property into two lots; one with the house accessed from Quenames Rd. and another, more southern lot abutting Quenames Rd.

8.   An easement agreement allowed the Riveras, as successors to Wilma Hancock, to access an existing electrical line, but limited access to one single-family home and one guest house.

9.   The judge found that the conveyance to Samuel included other property not at issue here, but did not include the Montgomery-Spangler property.

10.   While it is not clear from the record how or when, it appears that Samuel Hancock also at some point before 1873 took title to the Montgomery-Spangler property because in 1873, the administratrix of Samuel Hancock's estate transferred title of the Montgomery-Spangler and Handlin properties to Russell Hancock. The record again is unclear as to whether the Rivera property (i) was transferred before Samuel Hancock took title to the Montgomery-Spangler property, (ii) was transferred during Samuel Hancock's lifetime, or (iii) remained in his estate at the time the of the 1873 conveyance. The judge inferred that “the absence of the Rivera Property from the 1873 [d]eed indicates that to whomever that title passed, it did so prior to” the 1873 deed. The judge went on to analyze whether Samuel Hancock was a common grantor of each of the parties' properties and concluded he, too, was a common grantor and estoppel rights in Quenames Rd. arose when he conveyed the properties. We conclude that the record does not clearly establish that Samuel Hancock held all three properties at the same time.

11.   By way of example, a portion of the April 29, 1826 partition deed provides: “Also the southwesternmost half of the heater lot so called, the division line to begin at a black oak tree marked M. [illegible] standing on the south easterly side of said Quenames road from thence Northwesterly on a straight line to a stone set in a stump formerly known as the Rabbit tree.”

12.   The neighbors point to footnote 4 of the judge's decision wherein he addresses what he views as the maladaptation of the rule that applies estoppel only against grantors and their successors but not against grantees for the benefit of the grantors -- particularly in circumstances like these where for nearly two hundred years, properties have been described as bounding Quenames Rd. and the spirit of the estoppel theory belies denying access to the successor of the original grantor. Contrary to the neighbors' contention, however, the judge's concern as to the application of the rule does not compel the conclusion that an easement by estoppel was not established here. Footnote 4 expresses the judge's view that, were it not for strict application of the rule, he would not have needed to go on to determine the relative positions of the parties (i.e., successors to the grantee, or successors to the grantor), assuming Samuel Hancock could be regarded as a common grantor. But as we conclude in note 9, supra, the evidence does not establish that Samuel Hancock was a common grantor.

13.   Treating the Handlin and Rivera properties as if they were never jointly owned and conveyed by the administratrix of Jonathan Mayhew's estate, compare Blue View Constr., Inc. v. Franklin, 70 Mass. App. Ct. 345, 355 (2007), the neighbors argue that Handlin cannot be considered a grantor because the judge described Handlin as a grantee of Samuel Hancock. The Riveras ignore, however, that the Rivera and Handlin properties acquired an easement by estoppel over Quenames Rd. at the same time and it remained appurtenant to each lot as the property was subdivided. See Perry, 91 Mass. App. Ct. at 16-17.

14.   Although the neighbors argue that the properties also merged when they came under common ownership of Samuel Hancock, as we conclude in note 9, supra, the record does not establish such common ownership.

15.   The Riveras' request for an award of double appellate attorney's fees and costs is denied.