MAJOREK v. HAYES (2021)

Appeals Court of Massachusetts.

Nathalie MAJOREK v. David E. HAYES & others.1

20-P-390

Decided: February 02, 2021

By the Court (Blake, Desmond & Hand, JJ.2)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from an order of a Superior Court judge granting partial summary judgment in favor of the defendants.³ On appeal, the plaintiff claims that the judge erred in concluding that thirteen trees, cut down and removed by the defendants, were located not on her property but on a public way. We affirm.

Background. The plaintiff, Nathalie Majorek, has owned real property located on Hale Street in Beverly since November 14, 2003. Defendants David E. and Dori Hayes (collectively, the Hayeses) purchased real property located on the same street on August 2, 2016. The plaintiff's property and the Hayeses' property do not abut. They are separated by a roadway, referred to as “the way.” The way is comprised of a gravel roadway, with a grassy area on each side where trees and shrubbery grow. The way was established by the Essex County Commissioners around 1888, and was reduced in size by a decree of the Essex County Commissioners in 1945. The 1945 decree discontinued a portion of the way, causing that portion to revert back to the abutting owner. See, e.g., Nylander v. Potter, 423 Mass. 158, 161 (1996). The decree was accompanied by a plan which specifically delineated what portion of the way was discontinued, and it is undisputed that the discontinued portion is now part of the plaintiff's property. The northeasterly side of the plaintiff's property (the side that borders the way), including the portion of the way that was discontinued, is enclosed by a wooden fence, which closely mirrors, but is not identical to, the boundary lines of the plaintiff's property.

On August 15, 2016, without consulting the plaintiff, the Hayeses contracted with defendant Iron Tree Service, LLC, to cut down and remove thirteen trees that were located outside the plaintiff's fence, on the grassy area of the way. The Hayeses did not seek prior approval from the city of Beverly before doing so.⁴ The plaintiff, contending that the trees were cut from property she owned, filed suit against the defendants, seeking to quiet title and asserting claims for unjust enrichment, common law trespass, and trespass to trees pursuant to G. L. c. 242, § 7. The defendants moved for summary judgment arguing that the plaintiff lacked standing to bring her causes of action because she did not own the land from which the trees were removed.

The plaintiff and the Hayeses each hired their own surveyor to conduct a survey of the land. The plaintiff additionally had the land appraised and had an appraisal sketch prepared. Notably, the plaintiff's appraisal sketch placed all thirteen trees outside the plaintiff's wooden fence, and her survey plan placed the trees outside both her wooden fence and her property line. The Hayeses' survey plan also placed all of the removed trees on the way, outside the plaintiff's property line. Each of these plans was submitted to the judge along with affidavits from David Hayes, the Hayeses' attorney, the Hayeses' surveyor, the plaintiff, the plaintiff's attorney, and a title researcher hired by the plaintiff.

The judge considered these materials in conjunction with a 1920 plan of the property, and the 1945 decree discontinuing a portion of the way. Based on the foregoing materials, the judge concluded that there was no genuine dispute that the trees were located on the way outside the plaintiff's property line, and that the existing way was public because it had never been legally discontinued. Accordingly, she granted summary judgment in favor of the defendants on the plaintiff's action to quiet title, as well as the plaintiff's claims for unjust enrichment and trespass to trees.⁵ The plaintiff and the Hayeses subsequently stipulated to the dismissal of the plaintiff's sole surviving claim for common law trespass, and this appeal followed.

Discussion. The plaintiff raises two arguments on appeal. She first contends that there is a genuine issue of material fact about whether the cleared trees were located on her property. Second, she contends that, even if the trees were located on the way and not her property, the way is nevertheless private, she has ownership rights in the way, and therefore she should have been permitted to proceed on her causes of action.

“Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). When “the opposing party will have the burden of proof at trial, the moving party must demonstrate, by reference to materials properly in the summary judgment record, unmet by countervailing materials, ‘that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.’ ” Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “We review a decision to grant summary judgment de novo.” Boazova, supra.

Addressing the plaintiff's first argument, to preclude the allowance of a motion for summary judgment, the dispute about a material fact must be “genuine,” which means that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party” (citation omitted). Dennis v. Kaskel, 79 Mass. App. Ct. 736, 741-742 (2011). Although the plaintiff contends that the thirteen trees were located on the discontinued portion of the way that subsequently became part of her property, it cannot be said that this dispute is “genuine.” See id. Each of the plans submitted to the judge placed the thirteen trees outside the plaintiff's property line. Specifically, the plaintiff's survey plan demarcated the boundaries of her property, including where the property line and the wooden fence diverge, and placed all thirteen trees on the way outside the plaintiff's property line. Furthermore, in a deposition, the plaintiff herself stated that the trees were not located on her property, but were located on the way.⁶ Accordingly, this argument fails.

Secondly, as noted supra, the plaintiff contends that even if the trees were not located on her property, the way is private and she has rights to the centerline of the way. See Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339, 343 (1993) (referencing common law rule that grantee of land abutting private way is presumed to own to centerline of way). However, this argument also fails because the plaintiff cannot reasonably demonstrate that the way is private.

“Once duly laid out, a public way continues to be such until legally discontinued.” Erickson v. Clancy Realty Trust, 88 Mass. App. Ct. 809, 811 (2016), quoting Carmel v. Baillargeon, 21 Mass. App. Ct. 426, 428 (1986). The way was established by the Essex County Commissioners, and when the government of Essex County was abolished in 1999, see G. L. c. 34B, § 1, title in the way transferred to the city of Beverly. See G. L. c. 34B, § 6 (d) (“For any abolished county that has no successor council of governments title is hereby transferred to the respective towns in which the interests lie”). Only a portion of the way was legally discontinued by the 1945 decree, and that discontinued portion is now the plaintiff's property. As the plaintiff's survey plan illustrated, all thirteen of the trees were located on the way, outside the plaintiff's property line. Because the section of the way from which the trees were removed was never legally discontinued, that land remained public property.⁷ See Erickson, supra.

Without establishing that she owned the land from which the trees were removed, the plaintiff cannot reasonably expect to prove the essential elements of her claims to quiet title and for trespass to trees and unjust enrichment. See Bevilacqua v. Rodriguez, 460 Mass. 762, 767 n.5 (2011) (plaintiff must possess legal title to succeed in action to quiet title); Evans v. Mayer Tree Serv., Inc., 89 Mass. App. Ct. 137, 146-147 (2016) (tort remedy for trespass to trees can be sought only by property owner); Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005) (“Unjust enrichment is defined as ‘retention of money or property of another against the fundamental principles of justice or equity and good conscience’ ” [citation omitted]). As a result, the judge properly granted summary judgment in favor of the defendants on these claims.

The order granting partial summary judgment in favor of the defendants is affirmed, and the matter is remanded for entry of a final judgment.

So ordered.

Affirmed and remanded

FOOTNOTES

3.   The remaining claim, common law trespass, was dismissed by stipulation. While a final judgment has not yet entered, all claims were resolved, and we shall deal with the merits of the matter. See, e.g., GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995).

4.   The city of Beverly was never a party to this action.

5.   The summary judgment order resolved all of the claims against Iron Tree Service, LLC.

6.   The plaintiff's deposition testimony was as follows:Q.: “And it's your belief that these trees were located on your property?”A.: “Yes.”Q.: “Not on the right of way?”A.: “Well, again, it's a private right of way so it's a terminology difference.”Q.: “So we'll talk about two parcels of property. Your property and the right of way. Regardless of how we characterize the right of way, public, private, owned by you, owned by the Hayes, we'll call it the right of way.These trees, were they located on your property or are they located on the right of way?”A.: “On the right of way. My side of the right of way.”

7.   The plaintiff also contends that an issue of material fact exists about whether the way is private or public because a series of deeds to her property describe the way, or a portion of the way, as private. This argument is unavailing, however, because the discontinuance of a public way can only be accomplished by a public act, not by implication, nonuse, or private deed. See Zaskey v. Whately, 61 Mass. App. Ct. 609, 610 n.3 (2004); Carmel, 21 Mass. App. Ct. at 429.