Opinion
15-P-388
02-24-2016
JACE BOSTON, LLC v. HOLLAND DEVELOPMENT, LLC, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from a dispute between abutting property owners over the interpretation of an easement granted in a 1926 indenture and agreement (indenture), entered into by their predecessors in interest. At trial, the plaintiff, JACE Boston, LLC (JACE), sought a declaratory judgment and an injunction to establish its rights under the indenture and to prevent the defendants, 477 Harrison Avenue, LLC, and Holland Development, LLC (collectively, 477 Harrison), from demolishing a large portion of the wall subject to the easement. 477 Harrison appeals from a judgment in favor of JACE entered by the Superior Court after a jury-waived trial. We affirm.
477 Harrison Avenue, LLC, purchased the 477 Harrison Avenue property in 2012, and is the successor in interest to the Jordan trustees, who originally owned the property. JACE Boston, LLC, is the successor in interest of the Savoy Realty Trust for 1234 Washington Street in Boston.
The scope of an easement, "derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Patterson v. Paul, 448 Mass. 658, 665 (2007), quoting from Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). Whether the easement is in a deed or a contract in the chain of title of both properties is of no moment because the essential question is the intent of the parties as indicated by the words used in the instrument. Moreover, the scope of an easement does not change just because the grantor transfers title. Accord Anderson v. De Vries, 326 Mass. 127, 132 (1950) (noting that with regard to the easement "[t]he respondents acquired no greater rights than their grantors had"). Here, the plain language of the indenture is not ambiguous and controls our analysis. The indenture grants JACE an easement:
"which shall endure so long as the garage building now in process of erection on said land of said Trustees of the Savoy Realty Trust shall stand to tie unto and use for the support of said garage building [the wall subject to the easement] . . . to a height not exceeding two stories nor more than thirty four feet above the line of the present curbstone at the westerly corner of said Harrison Avenue and Perry Street."In short, as the trial court judge found, the easement grants JACE, and its successors and assigns, the right to tie unto and use for support the northeasterly wall of the building located on 477 Harrison Avenue up to two stories or a maximum height of 34 feet measured from the line of the curbstone at the corner of Harrison Avenue and Perry Street as it existed in 1926, i.e., 49.38 feet above "Boston City Base," and this right remains in existence, irrespective of whether it is exercised, until such time as the building on the JACE property no longer remains standing.
Boston City Base is a fixed point below ground developed by the city of Boston in the 1850's that allows architects and engineers to use the same vertical reference frame for all new construction in the city.
The case of Johnson v. Kinnicutt, 2 Cush. 153, 156 (1848), does not suggest a different analysis. That case concerned the width of an easement for "passing and repassing over the space of twenty feet." The court found that the easement was a "grant of a convenient way" within the limit of twenty feet and left for a jury whether the whole of the space must be left open. Id. at 157-158. The easement here is of a different kind, granting the right to tie into a wall for support up to a specific height. 477 Harrison acknowledges, as it must, that for at least some period, the Savoy trustees had the right to use the full area described in the easement to the maximum height.
477 Harrison contends that the reference to "the garage building now in process of erection" limits the scope of the easement. 477 Harrison contends the quoted phrase means that once that garage was completed in 1926, the right of JACE or its predecessors to tie in at a height more than one story ended. For support, it contends that a later clause of the indenture evidences the original parties' intent to restrict the easement to the original building, rather than allow for future expansion. These arguments are unavailing.
The later clause provided that the Savoy trustees' obligation to indemnify the Jordan trustees was limited to the time period when the garage building was being constructed.
The indenture expressly limits the duration of the easement -- until the garage building no longer stands on the property. The parties used limiting language in other clauses of the easement and it is dispositive that here they chose not to. At the time the parties entered into the easement, both knew that the Savoy trustees had an approved building plan for a one-story garage and yet wrote an easement that contemplated a taller building and did not expressly limit the Savoy trustees' (or their successors and assigns) ability to expand. That is dispositive. As the trial judge properly noted, "[T]he easement contains no express time limit as to when the Savoy Trustees, or their successors, had to utilize the easement and there is no express language prohibiting a future addition to the garage." This interpretation applies the plain and ordinary meaning of the terms and ensures that no terms are rendered superfluous. Estes v. DeMello, 61 Mass. App. Ct. 638, 642 (2004).
The trial judge's finding of fact that further removal of the wall would adversely affect the remaining portion of the wall provides an independent basis for the injunction. The trial judge credited JACE's experts on this point. 477 Harrison does not demonstrate that this finding of fact is clearly erroneous. See U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 427 (2014) ("On review of a jury-waived proceeding, we accept the judge's findings of fact unless they are clearly erroneous"). Instead, it argues that if reducing the wall height harms JACE's building, the exclusive remedy would be damages. This is not correct -- JACE is entitled to an injunction to prevent the harm.
477 Harrison asks us to rewrite the easement to substitute the Boston City Base for the line of the curbstone. It is not for this court to rewrite the express language of the easement.
Additionally, the easement refers to a "garage building now in process of erection" and the building plan for that garage, which was signed earlier in the same month the indenture was signed, refers to the Boston City Base. This allows the inference that the parties were aware of the Boston City Base, but specifically chose to measure the vertical elevation stated in the easement in another manner -- the line of the curbstone.
Because the terms of the easement are not ambiguous, we do not reach 477 Harrison's alternative arguments.
Judgment affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 24, 2016.