OLD COLONY HISTORICAL SOCIETY v. TAUNTON CHURCH GREEN REALTY LLC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this declaratory judgment action, we consider whether a judge of the Land Court correctly declared the rights of the parties with regard to a deeded right of way (ROW). The ROW is located on the property of the plaintiff, Old Colony Historical Society (Old Colony), and expressly benefits a portion of the property of the defendant, Taunton Church Green Realty, LLC (Taunton Realty). Among the issues before us is whether Taunton Realty may utilize the ROW to access assessors' lot 66-426, which was acquired by Taunton Realty's predecessor after the ROW was created. Old Colony also appeals from declarations that it has not extinguished a portion of the ROW by using it for parking, and that Taunton Realty may construct a sidewalk on the ROW if required to do so by a permitting authority. For the reasons that follow, we vacate the portions of the judgment that declared that Taunton Realty may use the ROW to access lot 66-426 and remand for further proceedings on that issue. We affirm the remainder of the judgment.

Background. We draw the facts from the judge's findings, which are not contested and have not otherwise been shown to be clearly erroneous. See Martins v. Simmons Props., LLC, 467 Mass. 1, 8 (2014), quoting Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). We review the judge's conclusions of law de novo. Id.

Old Colony owns assessors lot 66-433, a roughly rectangular-shaped lot which fronts to the south on a street, Church Green. Lot 66-433 is improved with a 19th century building that houses the Old Colony History Museum and Old Colony's offices.

Taunton Realty owns two lots: assessors' lot 66-424, located northerly to the rear of Old Colony's property, and assessors' lot 66-426, which abuts a portion of lot 66-424's northeastern boundary. Lot 66-426 does not abut Old Colony's property. Taunton Realty's two lots have been conveyed together eight times since 1984.

Old Colony's lot 66-433 and Taunton Realty's lot 66-424 were held by a common owner when, in 1926, the common owner transferred the rear lot, lot 66-424, to Taunton Realty's predecessor in interest by a deed containing a broad right of way over what is now Old Colony's property. The deed recited that the rear property was conveyed:

“together with a right of way forty (40) feet wide extending over a strip of grantor's remaining land and along the southwesterly line thereof from [lot 66-424] to Church Green, ․ with the full right in the grantee to use same for himself, his tenants, and his and their agents and servants, and all persons having lawful business with him or them, and in such manner and for all such purposes as a public way is commonly used. And the grantee, and his heirs and assigns, shall have full right to lay and maintain water, sewer and gas pipes under the said right of way and erect and maintain telephone and electric light poles and wires on and over the same, and construct and maintain a regular graded way over said strip of land but without expense to this grantor or its assigns.”

The ROW provided the sole access to the rear property.

In 1960, the then owner of lot 66-424 purchased assessors' lot 66-426 from a third party who created the lot from their residential property. As depicted on a sketch contained in the record, lot 66-426 is landlocked and the 1960 deed conveying it was silent as to easement rights.

Since at least 1958, and possibly dating back to the Civil War, Taunton Realty's property has been improved with a medical building housing doctor's offices and, later, counselling services. The building is located predominately on lot 66-424, though one porch and entry way straddles lot 66-426. At the time of trial, lot 66-426 was completely paved and connected to similar pavement on lot 66-424 to create a large, continuous, parking lot that surrounded the medical building on its west, northwest, north, and northeast sides. The judge found that from at least 1984, lot 66-426 has been used as the location of a stairway to the entrance of the medical building; a paved parking lot for owners or tenants of the medical building and their employees, patients and visitors; a connection to the other paved areas surrounding the medical building for use by owners, tenants, employees, patients, visitors, prospective purchasers and developers, vendors, delivery personnel, heating-oil suppliers, and utility suppliers; since 1996, for picnic tables for tenants and staff; occasional parking for visitors of the museum located on Old Colony's property; and occasional public parking for city events. The last tenant vacated the building in 2016. The judge found that Taunton Realty hopes to sell lots 66-424 and 66-426 to an entity that intends to build forty one-bedroom apartments and fifty-five parking spaces.

Old Colony commenced this action seeking, as characterized by the judge, three declarations: (i) that Taunton Realty does not have the benefit of the ROW to access lot 66-426; (ii) that Old Colony has narrowed the ROW by prescription; and (iii) that Taunton Realty has no right to install a sidewalk on the ROW if required by a permitting authority to do so. The judge concluded that although there is no right appurtenant to lot 66-426 to use the ROW, because the deed creating the ROW allows use of the ROW for “various purposes associated with [l]ot 66-424,” Taunton Realty and its guests may use the ROW to access lot 66-426 “for uses accessory to [lot 66-424], but not for other purposes.” The judge entered a corresponding declaration. The judge also declared that Old Colony had not extinguished any portion of the ROW and that the scope of the ROW allows Taunton Realty to construct a sidewalk if ordered to do so by a permitting authority.

Discussion. 1. Express easement. Old Colony correctly contends that an easement or right of way may not be used to access land beyond the dominant estate as it existed when the easement was created. See Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 686 (2016). See also Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 318 (2005), quoting Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678–679 (1965) (“[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”). Thus, “[a]fter-acquired property can benefit from an easement ․ only if the easement is an easement in gross, a personal interest in or right to use land of another, or the owner of the after-acquired property receives the consent of the owner of the servient estate.” McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 364 (1996). None of those circumstances are asserted here.

The judge concluded that use of the ROW to reach lot 66-426 was permissible as long as lot 66-426 was being used for uses accessory to lot 66-424. We disagree. The Supreme Judicial Court rejected a similar argument in McLaughlin, 422 Mass. at 364, where the easement holder argued that an “easement for the purposes for which public ways in the [town] ․ are now or may hereafter be used,” authorized use of the easement to reach after-acquired property. The Supreme Judicial Court reasoned that “[t]he phrase ‘the purposes for which public ways in the Town of Amherst are now or may hereafter be used’ presumably refers to the use of the easement for walking, bicycling, driving, and other uses for which public ways in the town are used, but there is no basis for interpreting it to enlarge the scope of the easement to benefit anything other than the dominant estate.” Id. at 365. The deed creating the ROW is no broader than the easement at issue in McLaughlin. Furthermore, the Supreme Judicial Court recently reiterated that the rule against extending an easement to after-acquired property is “a bright-line test” and rejected an invitation to adopt a new rule that would consider whether allowing access to after-acquired property would place an additional burden on the servient estate. Taylor, 475 Mass. at 687. Accordingly, we vacate the declaration that Taunton Realty may use the ROW to access lot 66-426.

In its brief, Taunton Realty argues that the judge found that it had acquired an easement by prescription over the ROW. “Acquiring an easement by prescription requires ‘clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years’ ” (citation omitted). Barnett v. Myerow, 95 Mass. App. Ct. 730, 738 (2019), quoting Smaland Beach Ass'n v. Genova, 94 Mass. App. Ct. 106, 114 (2018). The judge's decision noted that Taunton Realty asserted an easement by prescription claim, and although many of his subsidiary findings of fact bear on the issue, the judge did not address whether Taunton Realty had sustained its burden of proof on that issue. The judge's subsidiary findings indicated that owners, employees, and guests have accessed lot 66-426 via the ROW and have made significant uses of lot 66-426 since at least 1984 as a parking area, access area, picnic area, and a trash receptacle area. However, because the judge did not address the legal issue, we cannot be certain that he set forth all of his findings related to whether Taunton Realty had demonstrated that its and its predecessors' uses had been open, notorious, adverse, and continuous or uninterrupted over the requisite twenty years. Accordingly, we remand to the judge for further consideration the question whether Taunton Realty has proved that it has an easement by prescription over the ROW for the benefit of lot 66-426.²

2. Parking on the ROW. Old Colony sought a declaration that it had extinguished by prescription a portion of the forty-foot ROW by parking cars along the ROW.³ The servient estate owner is entitled to “make any use of [its] property which does not interfere with any rights that the plaintiff[ ] or others may have in the road,” including “parking of automobiles ․ on the side of [the street]” if such parking is “not a substantial obstruction in that [Taunton Realty's] ingress and egress was unimpaired” (quotation omitted). Brassard v. Flynn, 352 Mass. 185, 189 (1967). Here, the judge found that Old Colony's parking along the ROW varied seasonally, but even when large events were held on Old Colony's property, parking along the ROW never blocked access to Taunton Realty's property. The judge found that Old Colony presented no evidence that it ever used the ROW in any other manner inconsistent with Taunton Realty's rights. On these facts, we discern no error in the judge's conclusion that Old Colony had not narrowed the ROW by prescription.⁴

3. Sidewalk. Finally, Old Colony sought a declaration that Taunton Realty's rights in the ROW do not allow it to install a sidewalk should one be required by a permitting authority. Where, as here, an easement includes the right to “construct and maintain a regular graded way,” the right to improve the right of way includes construction of a sidewalk, “a usual incident of such a way.” Guillet v. Livernois, 297 Mass. 337, 341 (1937). We discern no error in the judge's declaration that Taunton Realty may construct a sidewalk if required by a permitting authority.

Conclusion. We vacate so much of the judgment that declares judgment shall enter in favor of Taunton Realty on count 1 and declares that Taunton Realty may use the ROW to access lot 66-426 for uses accessory to lot 66-424. The question whether Taunton Realty has an easement by prescription over the ROW to access lot 66-426 is remanded for further consideration by the judge. In all other respects, the judgment is affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

FOOTNOTES

2.   That lot 66-426 might have an easement by necessity over other land of its original grantor does not bear on whether it acquired an easement by prescription over the ROW.

3.   “To wholly extinguish an easement by prescription, the ‘acts of the servient tenant [must be] utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement’ for at least the prescriptive period of twenty years” (citation omitted). Cater v. Bednarek, 462 Mass. 523, 528 n.16 (2012).

4.   Delconte v. Salloum, 336 Mass. 184, 189 (1957), cited by Old Colony, is not to the contrary. There, the servient estate owner was prohibited from maintaining a parking area. Id.