Opinion
0774 CV 00064
07-15-2016
Donald MacDonald et al. v. Coffin's Field Trust, Inc. et al. [1] No. 134380
Robert J. Kane, Justice of the Superior Court.
FINDINGS, RULINGS AND ORDERS
Robert J. Kane, Justice of the Superior Court.
In 1979, Betsy and Donald MacDonald (" plaintiffs"), Michael Carroll and Marnie Edwards, along with Benjamin L. Hall, Sr. and Teresa Hall, through the Ancient Way Trust (collectively referred to as the " buyers"), purchased 40 acres of land for $30,000. The land was originally part of the Watcha division layout established by the Martha's Vineyard Proprietors in 1743. The Watcha division layout of 16 skinny, mile-long wood lots was bounded to the south by the Watcha Path, three rods in width, and to the north by the Mill Path, the main thoroughfare linking the eastern and western sections of Martha's Vineyard.
On December 6, 1743, the Proprietors of the Town of Tisbury met and approved the division of their common lands lying south of the Mill Path into three divisions, and each division was divided into sixteen lots.
Since their 1979 acquisition of one-third interests in the 40-acre property, buyers have endeavored through multiple approaches to acquire an easement to what is now the County Road, a 36-foot-wide paved roadway flanked by substantial shoulders.
In 2007, the MacDonalds filed this action seeking an easement from their property to the County Road, a public road, which lies directly above the Mill Path, an unused ancient way. Plaintiffs claimed that the easement lies under the doctrine of " necessity" and under the doctrine of prescriptive use.
Although nominally named as defendants, Carroll and Edwards, joined by the Halls, owners of abutting property referred to as " Starbucks, " support plaintiffs' claim to an easement over land owned by Coffin's Field Trust, Inc. (" CFT"). CFT objects to any easement over its land to the Mill Path or to the County Road. According to CFT, an easement by necessity running through their land would violate the original grantor's intent in conveying the land now owned by plaintiffs and CFT; would infringe upon property rights held by CFT in land that lacks any common origin with plaintiffs' land; and would unreasonably interfere with CFT's enjoyment of its land. As to any such easement under the doctrine of prescriptive use, CFT maintains that it lacks any foothold in the facts or in the law and may be safely characterized as a contrivance.
I now take up concisely the procedural history of this eight years of litigation, followed by detailed findings of fact and rulings of law.
PROCEDURAL HISTORY
It is now 2016. On October 30, 2007, Donald and Betsy MacDonald filed a Complaint against CFT, Benjamin L. and Teresa Hall and Michael Carroll, and Marnie Edwards. The Complaint sought as relief: (1) a Declaratory Judgment that plaintiffs and their co-owners of the 40-acre parcel of land possess an easement by necessity across the Coffin's Field lands " along and over the road, to and from the County Road"; (2) a Declaratory Judgment that " the road, to and from County Road" constitutes " a right of way"; (3) a Declaration that plaintiffs and their co-owners of the 40-acre parcel have acquired under G.L.c. 187, § 2 (easements by prescription), a right of way over the Coffin's Field lands allowing for travel by foot and vehicle along and over " the road to and from the County Road"; and (4) an injunction prohibiting CFT and its surrogates from erecting barricades and other obstructions blocking access to the easement possessed by plaintiffs and other interested parties.
On March 19, 2008, CFT answered, counter-claimed and cross claimed. The counter-claims and cross claims consisted: (1) quiet title under G.L.c. 240, § § 6-10, by declaring that plaintiffs and others lack any right to use CFT's land; and declaring that any use of CFT's land by plaintiffs has been through " permission"; (2) abuse of process; and (3) a Declaratory Judgment that plaintiffs and Starbucks Trust lack any easement or other right to use CFT's lands.
On May 6, 2009, Starbucks Trust filed cross claims and counterclaims. The claims generally paralleled plaintiff's claims.
A. Progression of Suit
Disputes about misjoinder of parties as defendants and production of documents caused exceptional delay.
B. Pre-Trial Memoranda
In a Pre-trial Memorandum, dated April 1, 2013, the MacDonalds, Carroll, and Edwards, and defendants CFT and Hall as trustee of the Starbucks Trust, set forth theories of their claims and defenses. Plaintiffs maintained that the easement by necessity ran from the land owned by the Ancient Way Trust over lands owned by CFT to the County Road. Alternatively, plaintiffs maintained that they possessed an easement over CFT's lands to the County Road, under the doctrine of a prescriptive easement. Starbucks, referencing the same legal theories, claimed an easement over the lands owned by the Ancient Way Trust and CFT to the County Road.
CFT denied that plaintiffs possess any easement over its land. It agreed that plaintiffs and Starbucks had an easement over the Moltzes' land to Watcha Path.
On August 8, 2013, Hall, as trustee of Starbucks, amended its Pre-trial Memorandum. In the amendment, Hall identified Attorney Christopher Pitt as an expert on the theory of an easement by necessity. According to the expert disclosure, Pitt would be expected to testify that at the time of the 1865 conveyances " reasonable access from Watcha Path for the Trust [did] not exist." The amendment further identified Douglas Dowling, a surveyor, as a witness and disclosed that Dowling would testify that access over Watcha Path failed to exist in 1865. He would also testify that presently Watcha Path fails to provide reasonable access, stemming from its " topography, wetlands and road conditions" and that curing the obstacles to reasonable access would be unreasonably burdensome due to cost and current municipal regulations. Dowling would identify reasonable access as being over CFT's lands to the County Road.
TRIAL
Over the course of fourteen sittings, the court listened to the testimony of fourteen witnesses, received one hundred and five exhibits, and attended a view. Before the trial ended, the court issued a procedural order governing requirements for proposed findings and rulings. The order stated that " each party must submit proposed rulings for all legal points or decisions that the party expects the court to address." The court expanded on the scope of this obligation, pointing out that the duty included " any motion in limine or evidentiary question that ha[d] been raised and preserved during the trial . . ." The order advised counsel that any substantial deviation from the order's requirements would constitute a waiver. The court has relied on the procedural order in preparing its findings of fact and rulings of law.
FINDINGS OF PACT
In 1743, the Martha's Vineyard Proprietors set off the Watcha Division, consisting of 16 skinny wood lots, approximately one-mile-long, running from the north on the Mill Path to the south on Watcha Path. The Mill Path went back to the earliest settlement of the island and perhaps before that time. Back then, it represented the main thoroughfare linking the western and eastern sections of the island. It constituted the shortest route between Edgartown and Tisbury.
Eight and one-half feet in width, the Mill Path was used by ox carts carrying cut wood to market. The amount of cart traffic caused depressions in the road. By the " 1850s" people were anticipating that the " state highway" above the Mill Path would attract the use of carriages.
The Mill Path was once known as the Old Road leading to Tisbury.
In 1854, officials had announced the layout of a new road above the Mill Path. On June 30, 1854, the Vineyard Gazette reported the following about the construction of a new road now known as the County Road:
Said road is to be thoroughly made and constructed in every part and to be cleared of all obstructions, the whole width from its Eastern terminus to the Guide Board leading to the Dukes County Land Records Office:--Thence the remainder of the road is to be cleared three rods in width.
Wherever the land is slanting transversely of said road, the lower side is to be raised with earth.
Wherever the ascent or descent is great, the hills are to be so far reduced as the safety or convenience of the public shall require.
The surface to be smooth, with suitable drains where necessary.
The traveling part of said road, or that part on which carriages pass, is to be not less than thirty feet in width, and raised eighteen inches higher in the centre than either side thereof, and hardened with clay or loam, wherever it may be necessary.
As ultimately constructed, this paved roadway was 66 feet in width, with 30 of the 66 feet devoted to shoulders.
A. Dexter Deeds
On March 24, 1847 and October 15, 1851, William and Thomas Norton, by way of deeds, conveyed lots 4 through 9 of the Watcha Division to Hiram Dexter. The Mill Path constituted the northerly boundary of the Norton conveyances and Watcha Path represented the southern boundary of the conveyances. Only the Watcha Path was laid out as a public way.
B. Description of Dexter Lands
Watcha Division Lot 10 constituted the western boundary of the Dexter lands and Lot 3 constituted the eastern boundary. The Watcha lands owned by Dexter consisted of woodlands which were thickest in the area of Watcha Path to the south, thinning out to the north where the Mill Path was located. The Mill Path was about eight and one-half feet in width.
In the 1980s, Douglas Dowling, a civil engineer and land surveyor, performed an original survey of the Watcha Division lands. Hollis Smith (" Smith") previously performed survey work of some of the Watcha Division lands. Smith is a fastidious surveyor. Besides working as a surveyor, Smith has a hobby of tracing the lines of the Vineyard's original divisions of land. He knew from his previous survey of the Watcha Division that rocks and piles had been used to mark off the boundaries.
Once a brush fire expired, Smith would venture to the Mill Path. Using a pitchfork, he would attempt to locate piles of stone. By doing the excavation work, Smith was able to locate more stone piles on the Mill Path. He only found three to four stone piles as monuments on the Watcha Path.
Dowling's survey work uncovered discrepancies between measurements used in the deeds to measurements found " on the ground." He also found that the deeds contained gaps in language.
Smith and Dowling both knew that chains and links were used as the measuring mechanism back in the 1800s. This measuring mechanism was used to go over and under obstacles. Because of this method of measuring, there would be a 10 to 15% variance between what was actually the distance and what was recorded as the distance.
The lot that posed the greatest difficulty for the surveyors was what came to be known as the Russell lot. They found that lot's measurements to be " very difficult." The distances made no sense. Smith believed that one entry of eight feet should have been 80 feet and determined that the lot ran along the Watcha Road, also known as the William Norton Road.
To the south of the Watcha Path or Road was at one time the Walker Farm. Scrubby Neck Road which lies to the west of the Dexter lands represented a roadway constructed by Walker to access the Scrubby Neck Farm. Going further west on Watcha Path, it meets up with Waldron's Bottom Road. Going north on Waldron's Bottom Road leads to its intersection with the County Road. To the north of the Watcha lots, above the Mill Path, was an area known as the New Purchase Division.
C. 1865 Conveyances
The sequence of Dexter's five conveyances in February of 1865 has significance in determining the existence and location of an easement by necessity. The court now charts the timing of the conveyances and generally identifies the location of the five lots with attention to each lot's relationship to Watcha Path and the Mill Path. Over the course of February 23, 1865 to February 27, 1865, Hiram Dexter conveyed five lots of land to four individuals. As a result of the conveyances, Dexter retained land to the north and to the east.
The Bodfish deed was acknowledged on February 23, 1865 and recorded on April 12, 1865; the Russell deed was acknowledged on February 24, 1865 and recorded on March 7, 1865. On that same date, Dexter deeded a lot to Josiah H. Vincent, which appears to lack an acknowledgment, but was recorded on March 13, 1865.
On February 23, 1865, Dexter conveyed three lots of land, one to Josiah Vincent, one to William P. Bodfish and the third to James Russell. All three were conveyed under warranty deeds. The Bodfish lot (" Bodfish I") amounted to 40 acres and assumed a rectangular shape. It is the lot now owned by the Ancient Way Trust.
The Bodfish I lot was bounded to the north by the Vincent lot. The Vincent lot was bounded to the north by land owned by Dexter that was subsequently conveyed on February 25 of 1865 to Bodfish (" Bodfish II"). The Bodfish I and Vincent lots lacked direct access to either the Mill Path or the Watcha Path. As will be seen, both the Bodfish I lot and the Vincent lot could access the Watcha Path by going east over the land retained by Dexter. The Vincent lot could have an easement north to the Mill Path. The Russell lot was the land at the southern border of Dexter's land. It was bounded to the east and south by Watcha Path.
On February 27, 1865, Dexter conveyed a ten-acre parcel to John Pease. The Pease lot, now owned by Starbucks Trust, was bounded to the North by Bodfish I, to the south by the Russell Lot, and to the east by the Watcha Path and by land retained by Dexter. The land to the east that was retained by Dexter is land now owned by the Moltzes.
Each of the deeds described the land as woodlands. The Bodfish I, Vincent and Russell lots all amounted to 40 acres; the Pease lot amounted to ten acres. The Bodfish II lot lacked any description of its acreage. At the end of the lot's description, it read:
Alexander Athearn's land joined on the west all the lots I have sold. They are to have their width in this division according to the deeds, if it takes all of the said land I have sold to James Russell, Henry Pease, William P. Bodfish and Josiah Vincent.
None of the deeds provided for an easement. The five deeds lacked any retained or granted easement. After the five conveyances, Dexter retained land to the north of Bodfish II and land to the East. The retained land to the north, together with Bodfish I and the Vincent lots, eventually came to be the land now owned by CFT.
D. Use of Conveyed Land
In 1865, no homes were located on the conveyed land that consisted of woodlands. The court infers that the land was used for cutting wood and carrying it by cart to market.
E. Use of Retained Land
It is not known how, if at all, Hiram Dexter subsequently used the retained land. In 1923, municipal officials announced execution of a contract to construct a 66-foot wide paved road called the West Tisbury Road (" County Road") above the Mill Path.
By the 1940s, the original Dexter Watcha Division lots had fields. Coming in from the Mayhew Memorial, one would go through an area of clearings and shrubbery and see a big opening which was probably Coffin's Fields. As previously mentioned, during the period of World War II, Joe Walker constructed a dirt road known as Walker Road that ran to Scrubby Neck Farms.
Recently, the retained land to the North and other nearby lands in the northern section have had subdivisions approved and constructed. The use of the land in the North for the development of subdivisions has differed from the land to the south where no subdivisions have been constructed.
F. Subsequent Purchase of Retained Land
In 1979, Dexter's retained land to the North, along with property north of the Mill Path (" Cromwell property), was conveyed to Benjamin Boldt. In 1984, Boldt conveyed the land to CFT.
G. Recent Condition of Watcha Path
In the twentieth century, people, on occasion, used Watcha Path for vehicular excursions, walking, and hunting. In the 1960s, people walked on Watcha Path and on occasionally drove on it. During the period from 1976 to 1986, it was barely passable. Few used it.
In the 1980s, Watcha Path was used as a walking path to get into the fields.
Watcha Path back then was a lot worse than it is today. It had huge gullies and a hump that could rip a car. Now it is slightly better because of vehicular use and the presence of the subdivision road in CFT's land. Today, Watcha Path is still " really rough, except for some limited sections." The part of the Watcha Path that goes from Vineyard Meadows to Waldron's Road is " really rough." Going from Waldron's to Long Point Road is not bad. Going to the east towards Joe Walker Road is " really rough." Continuing towards the eastern boundary of the Watcha Division, one can barely make it, even when driving an ATV.
H. Regulatory Requirements--Watcha Path
There now exist regulations in West Tisbury and Edgartown declaring Watcha Path a Special Way.
1. West Tisbury's Regulations
Under West Tisbury's regulation, 6-2-4, there can be no alteration of width or surface material, and generally no removal of vegetation. Where the alteration for vehicular use exceeds twelve feet, approval by the Martha's Vineyard Commission is required.
Use of land off of Watcha Path for a residential development is allowed but regulated. The permissible use for a residential development may not result in " direct vehicular access to the Special Way."
The regulations prohibit certain activities such as the removal of existing vegetation or alteration of the Special Way's width or surface materials. Exemption from the prohibitions requires issuance of a Special Permit. The decision to issue a Special Permit involves consideration of whether the Permit's issuance will result in conflicts with the present or future use of the Special Way and whether the imposition of the regulations would otherwise deprive a landowner of all reasonable uses or may be demonstrated by the landowner to be unreasonable.
2. Edgartown's Regulations
The Edgartown ordinance contains a prologue on its purpose. It states that the ordinance " protects old cart paths and walkways that are historical and cultural links to the community's past [as well as] recreational resources for enjoyment of the outdoors [and to] promote non-motorized means of transportation." The ordinance recognizes that " segments of a Special Way may be routinely used by automobiles . . ." A Special Way is identified " by cart depressions."
The Edgartown regulation covers Watcha Path beginning at the northeast point of Map 25 Lot 4. Pursuant to that regulation, the Special Way is to be generally free of vehicular use, no vegetation is to be removed and a special permit is required for widening the road or for expanding vehicular use of Watcha Path.
Additional vehicular use on the Special Way requires issuance of a special permit. The procedure for issuance of a Special Permit requires initial evaluation of whether: (1) another way to access the land exists; (2) another access could be available; and (3) the location and width of the proposed access, its distance from existing accesses, and the vegetation in the immediate surroundings are consistent with the purpose of the bylaw.
The evaluation's findings are then used in reviewing the criteria for issuance of the Permit. One criteria examines the uses allowed by the Special Permit in the underlying zoning districts in which the Special Way Zone lies. A second examines whether denial of the Special Permit for development uses or structures " would otherwise deprive the land owner of all economically viable use and value of the parcel of land considered as a whole." A third examines whether the request creates conflicts with present or future uses of the Special Way. A fourth examines whether the request is consistent with the bylaw. The fifth examines whether the request is consistent with the Special Way designation.
Granting permission for the vehicular way to be greater than 12 feet necessitates review by the Martha's Vineyard Commission. Where increased vehicular use is permitted and approved it shall be implemented " to ensure that the integrity of the Special Way remains consistent with the purpose of the bylaw."
Both Edgartown and West Tisbury's regulations allow for the removal of overgrown bush. Under that authority, the party may cut it back to the sides of the road.
I. Location and Condition of Mill Path
The Mill Path intersects with County Road outside of the land owned by Hiram Dexter. At its juncture with Lots 2 and 3 of the Watcha Division, the Mill Path intersects the County Road.
Because the Mill Path was constructed before 1843, it constitutes a public road. Its status as a public road has never been discontinued.
Since the construction of the County Road, the Mill Path has become overgrown with vegetation. Trees occupy its space. The evidence fails to reveal recent maintenance.
Today, the Mill Path is rarely used. Plaintiffs have failed to use it to access their Ancient Way property.
J. Waldrons Bottom Road
In 1979, the owner of Waldrons Bottom, a private road, granted an easement to the inhabitants of the Town of West Tisbury. The road is serviceable for vehicular travel to and from County Road.
K. Parties' Property
1. Coffin's Field Trust, Inc.
On August 31, 1984, Benjamin Boldt conveyed the land formerly owned by Hiram Dexter, specifically land south of the Mill Path, and land north of the Mill Path formerly owned by Cromwell, to CFT. The conveyance included the aforementioned easement across what is now the Moltz property to Watcha Path.
A large field is located on the properties formerly owned by Dexter. Part of that field is owned by CFT.
There is only one access road to this field. It begins at Watcha Path and crosses over in close proximity to the Starbucks Hill and Ancient Way parcels and into the field. It runs in close proximity to the West Tisbury-Edgartown town line through the land retained by Hiram Dexter (Lot 4) now owned by the Moltzes.
a. Subdivision Approval
On January 12, 1984, the Edgartown Planning Board had granted CFT's predecessor a Special Permit to develop a cluster development. On March 8, 1984, West Tisbury's Board of Appeals accepted a subdivision plan with conditions. The conditions included a prohibition against the " reduction in Open Space."
b. Restrictive Covenant
On October 25, 1984, a covenant was filed in the Registry of Deeds in relation to the proposed subdivision of CFT's land. It provided that in " Open areas 3 and 4 . . . no motorized vehicles shall be allowed" and " no cutting or removal of trees . . . other vegetation or topsoil shall be allowed without the prior written approval of the Grantor." The covenant required that in " Open areas 1 and 2 there would be no public access or use allowed [and] that [s]elective cutting and planting may be allowed to encourage visual barrier growth only."
c. Covenant's Enforcement
Michael Cassary served as CFT's president and a member of its board since 1997. It was in 1986 that Cassary moved into his house located at Coffin's Fields. In that year, he observed the Coffin's Field Road was a dirt roadway and that there was no paving or utilities.
In 1997, when he assumed the position of president, he became acquainted with CFT's covenants against vehicular use in the fields by residents and others. In that year, he made known his understanding of the covenants to members of CFT.
In approximately 1998, CFT had a fence and a gate installed. Before that there had been a chain and two posts.
Cassary and other board members have assiduously attempted to police use of the Coffin's Field Trust lands by people other than those who own properties in CFT. Mr. Fishbeck has also been on the Board of Directors. He has kept a vigilant lookout for people lacking any rights to use CFT's lands. The only individual who has been exempted from that prohibition is a farmer who has been allowed to hay the fields. Fishbeck has encountered individuals trespassing while driving vehicles and has observed mobile trespassers go over the Moltz easement into the fields. He has observed trespassers using golf carts, a pickup truck and dirt bikes. On occasion, he has seen a truck engage in spin-outs in the field.
He has spoken to these trespassers and they have heeded his instructions. Because of the trespassers going over the Moltz land, a sign that says " No Trespassing" has been posted on the southern side. The sign was flexible but anchored.
2. Moltzes' Property
The Moltzes' property consists of land retained by Dexter in the 1865 conveyances. As previously stated, the " road to field" running from Watcha Path across the property owned by the Moltzes constitutes an access route to the Ancient Way Trust and the Starbucks' property. The Moltzes' parcel of land lies in West Tisbury and Edgartown, shown as Lot 18 on a Plan of Land recorded in the Duke's County Registry of Deeds as Edgartown case file #177. The deed into the Moltzes was from Ralph F. Dostal dated November 28, 1995 and recorded in the Dukes County Registry of Deeds in Book 665, Page 342.
3. Starbucks' Property
Starbucks property amounts to the Pease land that was conveyed by Hiram Dexter in 1865. Through a series of wills and a deed from John Newhauser to Benjamin Hall, the property passed to Benjamin Hall, Sr.; Benjamin Hall, Sr. deeded his land interest to Emma Colon, and Emma Colon deeded back to Hall, Sr. the property that Hall had conveyed to her. Benjamin Hall, Sr. now owns all of the Pease lot.
4. The Ancient Way Trust
In 1973-1974, the MacDonalds rented property in Edgartown from the Halls for the operation of a retail business specializing in handcrafted clothing and jewelry. The Halls and MacDonalds enjoyed a warm friendship. Teresa Hall suggested to the MacDonalds that they become part of a group who would bid at an auction for property in the area of Coffin's Fields. The MacDonalds and Halls, together with Marnie Edwards and Michael Carroll, agreed to form a group that would bid for the property at the auction.
At the auction, the three couples made a bid of $30,000 for the property. The bid was accepted and the group took ownership of the property under the Ancient Way Trust.
a. Use of Land: Ancient Way Trust and Starbucks Trust
For decades, the trustees of the Ancient Way Trust and the Starbucks Trust have attempted to develop the land for subdivisions. During that time, substantial efforts and considerable expense have been undertaken to have the properties conform with zoning and other regulatory requirements.
In 1978, 1980, 1986 and 2009, subdivision plans of land were prepared. In 1986, the Ancient Way Trust petitioned West Tisbury's Board of Appeals for permission to develop a subdivision and the Martha's Vineyard Commission for approval. In 1986, the Starbucks Trust petitioned the West Tisbury Board of Appeals for permission to develop a subdivision.
At a December 8, 1986 meeting of the West Tisbury Planning Board, Benjamin Hall, Jr., as Trustee of Starbucks Hill Trust, presented a five-lot subdivision plan. An abutter raised concerns about sufficient water resources and pollution of water supplies. The Board of Health suggested that subdivision plans being pursued by Starbucks, the Green Meadows Farm Trust, and the Ancient Way Trust should be the subject of an overall investigation into impacts on water resources.
In regards to access, Ben Boldt denied granting an easement to Starbucks. Hall identified the main access as " indirect access from Edgartown through Watcha Path."
At that same meeting, the owners of the Ancient Way Trust sought approval of a twenty-one-lot development that would contain houses for two of the owners. This proposal designated access through Watcha Path. Hall characterized that access as " more pleasing and not burdening on the Edgartown Road." He described Watcha Path's condition on the Edgartown Road as " good." The Board sent the Ancient Way proposal to the Martha's Vineyard Commission for approval.
At the Commission, Carroll presented the proposal on behalf of the Ancient Way Trust. He said that 36.5 acres of the Trust's 40 acres lay in West Tisbury.
At the Commission hearing, staff raised concerns about " access." The Board's report to the Commission expressed concern over Coffin's Field subdivision because the multiple subdivisions would have a detrimental effect on Watcha Pond. One Commission member downgraded the water concern.
Before the Commission, Carroll indicated access would be over Ben Boldt's Green Meadows property. As to access over Coffin's Field, Carroll conceded that the land is " forever in open space/common land."
The Commission rejected the Ancient Way development plans. It relied specifically on the lots not satisfying the new three-acre-lot size requirements and the subdivision's impact on the Edgartown-West Tisbury Road. In making that judgment, the Commission considered the impacts created by the two proposed subdivisions on Watcha Pond.
b. Other Efforts to Develop Ancient Way Trust Property
Attempts were made to purchase easement rights from the owners of CFT. All efforts failed. The efforts involved a $30,000 deposit that was forfeited. Hall also approached the MacDonalds about purchasing an easement over Starbucks. The MacDonalds declined the offer. Use of the property for affordable housing was also explored, without success.
L. Plaintiffs' Proposed Easement
Plaintiffs' claim of an easement by necessity involves access north over CFT's land to the County Road. It proposes alternative routes. One route proceeds north around the Vincent lot and the second Bodfish lot and connects with CFT's subdivision road near lots 32 and 34. The other route would likewise go around the Vincent and Bodfish lots and connect with the CFT's subdivision road by running east of the subdivision near lot 21. Both routes go through Open Area 4.
M. Prescriptive Easement
Evidence of an adverse prescriptive easement came from Donald MacDonald, Betsy MacDonald and Benjamin Hall, Sr. In 1963, Donald lived at the officer's quarters located on Airport Road. During this time, he would use the fields for hunting. He entered the fields by going to Watcha Path in the south. Specifically, he would go on a footpath to Watcha Path and then into the fields. He also used an ATV that he had purchased in 1986 to access the fields a few times. He went to Watcha Path to get to the area of the fields now known as the 40 Acres.
In the early 1980s, Boldt developed the subdivision within CFT's property. At that time, Donald would use the subdivision's road to access the fields.
In the 1970s, Betsy MacDonald would use the area of the Mayhew Memorial to go to the pathway to the fields. Being her chief form of exercise, she walked to the fields from the Mayhew Memorial three to four times per week. Betsy found the fields to be " so pretty" and " beautiful."
Betsy, like many people, had a customary way of walking the two adjoining fields. Her walk would begin at the northeast boundary of the eastern field. She would walk up about a third of that field's length and cross over to the western field. She would walk up the eastern border of that field to almost the top and then switch directions now going to the north. She would walk north to the end of that field. On the western border was a path wide enough for a vehicle.
Once CFT's road was installed, Betsy used that road to get to the fields. She used the route in the 1980s. In the 1990s, she continued to use that route to walk. During that period, there was a chain that at times was locked. To circumvent the chain, Betsy went under or around it. In or around 1998, CFT erected a gate in place of the chain. Like the chain, the gate was sometimes locked, in which case Betsy walked around it.
Betsy remembered seeing one person other than her husband when she was walking in CFT's road. She saw Richard Hamilton. She never encountered anyone who attempted to prevent her from walking in the fields. At times she brought her children, traveling in go-carts, to the fields. On one occasion, someone objected to the use of go-carts.
During the 1980s, Betsy walked on Watcha Path on a few occasions. She stated that it was " awful" to walk there.
As previously noted, CFT's predecessor developed a subdivision within CFT's property. At that time, Betsy would continue to access the fields and use the road of the subdivision.
Deposition testimony and trial testimony from the Halls provided little. Teresa Hall's deposition testimony was freighted with uncertainty: " I forget a whole lot of stuff." Its persuasive content amounted to infrequent walks over the Coffin's Fields. Benjamin Hall, Sr. testified to walking in the beginning in widely different ways. He indicated he went " all over the place."
RULINGS
The court now discusses and rules upon the claims of an easement by necessity and a prescriptive easement.
A. Easement by Necessity
The doctrine of an easement by necessity goes back to the 13th and 14th Centuries. From long ago to the present, the policies underlining and explaining an easement by necessity have subtly shifted. In the 13th and 14th Century, courts observed " that without a way of access, a man could get no profit from his land." Restatement (Third) of Property: Servitudes § 2.15 comment a. In the 17th Century, courts expressed a public policy justification. It was then observed that a lack of access constituted " not only a private inconvenience, but it [was] also to the prejudice of the public weal, that land should lie fresh and unoccupied . . ." Id.
Public policy favoring use and occupation of land remained the justification for the servitude until the 19th Century, when the focus returned back to private needs. In the 19th Century, courts concluded that " ways by necessity arose because of the presumed intent of the parties." Id.
In the 20th Century, there was " renewed recognition of the public-policy basis of servitudes by necessity, although the presumed intent of the parties [was] still the prevailing rationale . . ." Id.
The Restatement (Third) of Property recognizes the value and logic of both justifications. The presumption of an intent to provide access derives from the understanding that " parties to a conveyance would very rarely intend deliberately to render useless either property conveyed or retained by the grantor." Id. An easement by necessity serves the public interest " because it avoids the costs involved if property is deprived of rights necessary to make it useable." Id. The public policy doctrine recognizes that either the property will lie unused or that " the owner incurs the costs of acquiring rights from landowners who are in a position to demand an extortionate price because of their monopolistic position." Id.
1. Proof of an Easement by Necessity
In the instant case, the Ancient Way Trust satisfied its burden that an easement by necessity arose from the conveyance of the Bodfish I land. A party claiming an easement by necessity has the burden of establishing that the parties intended to create an easement that is not expressed in the deed. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105, 187 N.E. 227 (1933). An easement by necessity may be implied if the court " can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one." Kitras v. Town of Aquinnah, 64 Mass.App.Ct. 285, 291, 833 N.E.2d 157 (2005) (" Kitras I "). A presumption of an easement by necessity arises if the party claiming an easement shows: (1) both dominant and servient estates once were owned by the same person or persons, i.e., that there existed a unity of title; (2) a severance of that unity by conveyance; and (3) the conveyance created a necessity for an easement. Kitras v. Town of Aquinnah, 474 Mass. 132, 140, 49 N.E.3d 198 (2016), citing Kitras I, 64 Mass.App.Ct. at 291. See also Nylander v. Potter, 423 Mass. 158, 162, 667 N.E.2d 244 (1996) (finding no easement by necessity because there was no previous common ownership); Orpin v. Morrison, 230 Mass. 529, 533, 120 N.E. 183 (1918) (finding an easement by necessity when the land was otherwise inaccessible).
Plaintiffs established the three threshold conditions and demonstrated objectively Dexter's intent to provide an easement to the conveyed land. As to the Starbucks Trust land, formerly the Pease land, the Trust likewise satisfied its burden that an easement by necessity arose. Dexter's common ownership of the lots in question established unity of title. The unity of title was severed by Dexter conveying the five lots in February of 1865. These 1865 conveyances created a necessity for an easement because the created lots were landlocked.
2. Easement's Location
The court should fix the location of an easement by necessity in a location that is convenient and necessary for the dominant estate's full enjoyment. Mahoney v. Wilson, 260 Mass. 412, 414, 157 N.E. 592 (1927). The Restatement recognizes the common law's limitations of the doctrine's application to the location of an easement. The common law looks to the original conveyance on the easement's location. The easement is " limited to providing access over or through property held by the grantor at the time of the conveyance." Restatement (Third) of Property: Servitudes § 2.15 comment a.
To avoid this limitation, states have enacted statutes " permitting the owners of landlocked property to purchase access rights regardless of the manner in which the landlocking occurred." Id.
" The extent [and location] of an easement depends on the circumstances of its creation." Patterson v. Paul, 448 Mass. 658, 665, 863 N.E.2d 527 (2007), quoting Mugar v. Massachusetts Bay Transp. Auth., 28 Mass.App.Ct. 443, 444, 552 N.E.2d 121 (1990). " When created by conveyance, the grant or reservation 'must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.'" Patterson, 448 Mass. at 665, quoting Mugar, 28 Mass.App.Ct. at 444 (citation omitted). See also Restatement of Property § 483 comment d, at 3012 (1944) (meaning of easement created by conveyance " is to be found in its language construed in the light of the relevant circumstances").
3. Boundaries of Original Location
Because the easement's location derives from the land owned by the grantor at the time of the easement's creation, it may not spill over into after acquired land. " After-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. Board of Selectmen, 422 Mass. 359, 364, 662 N.E.2d 687, 664 N.E.2d 786 (1996); Cox v. Considine Dev. Co., LLC, 21 LCR 172, 179 (Mass. Land Ct. 2013). " [A]fter-acquired property . . . may not be added to the dominant estate without the express consent of the owner of the servient estate [and] absent such consent, the use of an easement to benefit property located beyond the dominant estate constitutes an overburdening of the easement." Bateman v. Board of Appeals, 56 Mass.App.Ct. 236, 239, 775 N.E.2d 1276 (2002), quoting McLaughlin, 422 Mass. at 364. " A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from land adjacent to or beyond that to which the easement is appurtenant." Southwick v. Planning Bd., 65 Mass.App.Ct. 315, 318, 839 N.E.2d 351 (2005), quoting Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-79, 205 N.E.2d 222 (1965).
The Dexter and Cromwell lots were not owned by a common grantor at the time of severance. The Dexter deeds were bounded on the north by the Mill Path. Dexter's lack of ownership of the lot north of the Mill Path fails to establish the requisite unity of title for an easement by necessity extending into the Cromwell land lying north of the Mill Path. See Nylander, 423 Mass. at 162 (" [w]ithout previous common ownership, Potter cannot claim an easement by necessity"); Boudreau v. Coleman, 29 Mass.App.Ct. 621, 628-29, 564 N.E.2d 1 (1990) (" [t]he focus of our attention in determining whether the defendants have a reserved easement by implication . . . must be on the intent of the [grantors] and their grantees at the time common ownership was first severed"); Restatement (Third) of Property: Servitudes § 2.15 comment a (an easement is " limited to providing access over or through property held by the grantor at the time of the conveyance"). Thus the easement is limited to the land actually owned by Dexter at the time of conveyance, i.e., extending north only to the Mill Path. The easement deriving from the 1865 conveyance failed to require any subsequent fixing of its location. The Mill Path and Watcha Path, both public ways, possessed definite boundaries.
4. Location of Original Easement
Plaintiffs argue that the easement should travel north over the defendants' land, either connecting directly to the Mill Path, or passing over it to County Road. However, circumstances at the time of severance fail to support that pathway as the easement's original location. It would make little sense for Dexter to convey the southern lots with a long winding easement, through retained lots, up to the Mill Path. Such an easement would encumber the uncultivated property that Dexter intended to sell.
Plaintiffs' parcel was used for cultivating wood. Watcha Path was a cart path by which the wood could be brought to market.
Conversely, carts traveling due north through the retained land would be encumbered by the presence of trees and undergrowth. It would be an impracticable journey for carts laden with wood to travel over rough terrain. Storms with the flow and deposit of water could interrupt and perhaps prevent the carts' transit.
In these comparative circumstances, an objective analysis locates the original location of the easement as over the Moltzes' property to Watcha Path north to the other public way, the Mill Path. Such a location for the easement would be most convenient and conducive to furthering the beneficial enjoyment of the conveyed and retained land.
5. Easement's Relocation to County Road
Relying on M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91-92, 809 N.E.2d 1053 (2004), plaintiffs reason that CFT's purchase of the property above the Mill Path to County Road (Cromwell land) served to relocate plaintiff's easement through the Cromwell land to County Road. Plaintiffs' reasoning falters on the facts and the law.
Plaintiff's original easement's location lacked any connection to the Mill Path located in CFT's land. Plaintiffs rely upon a fiction rather than a fact; plaintiffs never had an easement going north over the defendants' land to the Mill Path. As discussed above, the original easement lay over the Moltzes' property to Watcha Path, then north to its connection with the Mill Path.
As to the law, M.P.M. Builders fails to support plaintiffs' argument that an easement can be relocated over after-acquired land. The ruling reached in M.P.M. Builders derived from the servient estate's desire to relocate the dominant estate's easement. Id. at 93-94. The relocation occurred on the land that originally created the easement. Id. at 88.
M.P.M. Builders overturned a long-standing precedent that confined an easement to its original location absent agreement by the parties to relocate. See Anderson v. De Vries, 326 Mass. 127, 132, 93 N.E.2d 251 (1950); Davis v. Sikes, 254 Mass. 540, 546, 151 N.E. 291 (1926); Bannon v. Angier, 84 Mass. 128, 2 Allen 128 (1861). That change in the law lacks any nexus to the proposition that M.P.M. Builders reversed the long-standing precedent limiting the location of an easement to the conveyed and retained land.
Plaintiffs wish to relocate the easement partially and materially in after-acquired land. Settled doctrine negates plaintiff's petition to relocate the easement in after-acquired lands. See Bateman, 56 Mass.App.Ct. at 239, quoting McLaughlin, 422 Mass. at 364 (" after-acquired property . . . may not be added to the dominant estate without the express consent of the owner of the servient estate"). The Restatement endorses Massachusetts law on the unavailability of after-acquired land for relocating an easement. See Restatement (Third) of Property: Servitudes § 2.15 comment a (an easement is " limited to providing access over or through property held by the grantor at the time of the conveyance").
The Restatement examines the common-law rule for a landlocked parcel. Under comment c of section 2.15, the Restatement provides that " servitudes are not implied to enjoy rights later acquired by the owners of property once held in common ownership." An easement may be deemed relocated if the servient estate relocates the easement and the dominant estate acquiesces. Proulx v. D'Urso, 60 Mass.App.Ct. 701, 704-05, 805 N.E.2d 994 (2004).
After-acquired property can benefit from an antecedent easement such as this one 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, 422 Mass. at 364. Cox, 21 LCR at 179. See also, Southwick, 65 Mass.App.Ct. at 318, quoting Murphy, 348 Mass. at 678-79 (" [a] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from land adjacent to or beyond that to which the easement is appurtenant"). The Cromwell lot north of the Mill Path was an after-acquired property, not owned by Dexter at the time of conveyance. The plaintiffs' argument fails, because the plaintiffs, as the dominant estate, are the party attempting to relocate the easement. Plaintiffs fall within the prohibition stated in McLaughlin .
6. Relocation to Mill Path
A relocation to the Mill Path also is not supported by law or fact. Neither Massachusetts' common law nor the Restatement (Third) of Property supports the proposition that the dominant estate can seek relocation of an easement.
Where an easement's location is defined by the circumstances as evidence of the parties' intent, the law fails to authorize relocation, except for when the servient estate seeks to relocate it. See M.P.M. Builders, supra . Cases cited by the plaintiffs stand for the proposition that the servient estate, not the dominant estate, may seek relocation of the easement when the parties fail to agree upon a new location. See M.P.M. Builders, 442 Mass. at 91-92; Kurker v. Seidner, 75 Mass.App.Ct. 1113, 916 N.E.2d 774 (2009) (unpublished Rule 1:28 decision); Carlin v. Cohen, 73 Mass.App.Ct. 106, 109-10, 895 N.E.2d 793 (2008); Trenz v. Norwell, 68 Mass.App.Ct. 271, 280, 861 N.E.2d 777 (2007). The Restatement of Property provides authority for the change of a dominant easement's use. See Restatement (Third) of Property: Servitudes § 4.10.
Nor do the facts support the claim that the easement's location has been dormant. The original circumstances attending to the 1865 conveyances objectively revealed the easement's location over Watcha Path, north to the Mill Path. Cart depressions on both public ways show that the grantees understood the intended location of the easement and acted conformably with that intent. Therefore, there was established originally a definite easement, and absent a change in law or consent to relocate, that is where the easement permanently lies.
Though the easement over the retained land to the east was not precisely fixed, it would lie in the most direct and passable way to the Watcha Path.
Plaintiffs proceed from the false premise that there was no original easement and seek to have it established going north. It is from this false premise that plaintiffs base their argument and from which Attorney Pitts based his testimony. The court, as stated above, finds that there was an original easement--one over the Moltzes' property connecting directly to Watcha Path. Therefore, plaintiffs' argument for relocation north through CFT's lands to the Mill Path must fail.
There are also significant reasons relocation north would not pass the M.P.M. Builders test: Watcha Path is a suitable way without regulatory restrictions on vehicular use; going north would injure CFT's interests; going north would injure the aesthetic and open value of CFT's fields; plaintiffs have not asserted such rights for a very long period of time; and the Mill Path is in complete disrepair unsuitable for use.
7. Need for Equitable Adjustment of the Easement
Assuming that the law would allow relocation of the dominant estate's easement, the change in location would need to be founded upon a showing that it is " reasonably necessary" that it " accommodate[s] normal development of the dominant estate" and that it fails to unreasonably interfere with the servient estate. Restatement (Third) of Property: Servitudes § 4.10. The three requirements integrate into the Restatement's policies on the " socially productive uses of land." Id. at comment b.
Under the Restatement's policies, the dominant estate may reasonably use the easement for the normal development of a " socially productive use of [the easement]." Id. A socially productive use allows the dominant estate to use the easement in a way that is " reasonably necessary for the convenient enjoyment of the easement." Id. Its reasonable application must accommodate the servient estate's freedom from " unreasonable damage" to its estate. Id. A socially productive use of the easement is designed to reasonably accommodate the neighborhood's interests in preserving aesthetic and historical values and maintaining stable environments. Id. Resolution of the rights and restrictions strikes a balance between the dominant estate's convenient enjoyment of its easement and interests possessed by the servient estate and interests of the neighborhood. The change in the dominant estate's use of its easement " frequently present difficult factual issues as to how to" assess the competing interests. Id. The complexity of the examination requires " a detailed inquiry into the particular facts and circumstances . . ." Id.
a. Reasonably Necessary
The facts fail to establish that the change in location is reasonably necessary to further the beneficial use of the Ancient Way or Starbucks Trusts' land. Use of the Trusts' land for limited residential development is likely. It will provide the Trusts' owners with a beneficial enjoyment of its property through use of its existing easement.
Plaintiff's proposed findings endorse the finding that its land " could be used for a single-family home with access over the CFT land and the Moltz property easement to Watcha Path without obtaining regulatory approval for use of Watcha Path." (Proposed finding 129.)
Outcomes from previous development plans fail to foreshadow denial of use of the existing easement for single-family use. Prior proposals sought Special Permits and approval from the Martha's Vineyard Commission for construction of subdivisions. The prior denials failed to present grounds for maintaining that the denial would be unreasonable and would unlawfully prevent any beneficial use of the land.
Denial of single-family use would likely amount to a regulatory taking. " Identifying when a regulation has gone 'too far' is a fact sensitive inquiry." Giovanella v. Conservation Comm'n of Ashland, 447 Mass. 720, 725, 857 N.E.2d 451 (2006), citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 326, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123-24, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). " [T]here is no 'set formula' for when compensation should be made, but that the determination rests on 'the particular circumstances' in each case after 'an essentially ad hoc, factual inquir[y].'" Giovanella, 447 Mass. at 725, citing Penn Cent. Transp. Co., 438 U.S. at 124. Three factors guide this inquiry: (1) the extent to which the regulation interferes with the owner's distinct investment-backed expectations; (2) the economic impact of the regulation; and (3) the character of the government regulation. Giovanella, 447 Mass. at 725, citing Penn Cent. Transp. Co., 438 U.S. at 124. A limited exception to the Penn Central factors is the " extraordinary circumstance when no productive or economically beneficial use is permitted." Giovanella, 447 Mass. at 725, quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (emphasis in original).
Review of proposals for use of Watcha Path to permit single-family use would invoke consideration of whether the denial would deprive the owners of " all economically beneficial or productive use of land." Lucas, 505 U.S. at 1015. Fitchburg Gas & Elec. Light Co. v. Dep't of Pub. Utils., 467 Mass. 768, 776, 7 N.E.3d 1045 (2014) (" Government regulatory actions may be deemed per se takings if . . . the regulation deprives a property owner of any viable economic use of the property") (citation omitted); Blair v. Department of Conservation & Recreation, 457 Mass. 634, 638-39, 932 N.E.2d 267 (2010) (" [A regulation] does not, on its face, effect an unconstitutional taking when there are any circumstances in which an owner retains an economically viable use of his or her property"). " What may be characterized as forbidden takings are those governmental actions which strip private property 'of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it.'" Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7, 20, 393 N.E.2d 858 (1979), quoting MacGibbon v. Board of Appeals, 369 Mass. 512, 517, 340 N.E.2d 487 (1976).
Denial of the Permit or approval would not involve a case where only " a small portion" of the large parcel of land has lost value due to regulation. Giovanella, 447 Mass. at 726. The entire 40 acres for the Ancient Way Trust and the ten acres of the Starbucks Trust will have no value if single-family use is denied.
The Edgartown and West Tisbury Special Way regulations recognize the need to provide the owner with a socially productive use of the land. In the instant case, a use other than a residential use would be hard to fathom. Even if an agricultural use would be theoretically plausible, how could it be perceived to be productive to the point of a beneficial use?
Single-family residential use would provide each owner of the Trusts' property with a beneficial use of land. It would allow each owner to enjoy a residence in an expansive, open setting. The spacious pastoral setting that would be filled with open areas would reasonably confer a beneficial use quite commensurate with the owners' identified investments.
b. Normal Development of the Land
Whether a new location for the easement fits into the normal development of the land necessitates analysis of the historical use of the property. Restatement (Third) of Property: Servitudes § 4.10 comment f. Normal development of the property is earmarked by a gradual change in use contrasted with an abrupt change. Id. " A gradual transition from wilderness to agriculture to suburban subdivision might be considered normal, where an abrupt transition from wilderness to subdivision would not." Id.
Use of the land in the neighborhood of the southern section of Watcha Path in lots three to ten has differed from use of the land in the neighborhood of Watcha Path to the north. A sizable portion of the northern neighborhood has been developed into multiple residential subdivisions. The Trust's lands and other land to the south is still wilderness.
In recognition of the neighborhood's natural state, public and private parties have enacted restrictions to preserve the area's historic and aesthetic values. Oversight of the lands' use by the Martha's Vineyard Commission and the Towns of Edgartown and West Tisbury reflect that the Trust's land lies in a neighborhood whose normal development differs from the neighborhood to the north, owing to the interest in preserving aesthetic and historical values.
A relocation of the easement over open space in CFT's land to promote a residential subdivision in the Trust's lands would be an abnormal development of the land. It would injure aesthetic and historic values that public and private land use restrictions seek to prevent. As Betsy MacDonald expressed in her testimony, the open fields lying within the land occupied by the Ancient Way Trust and CFT amount to a visual treasure.
In evaluating a normal development, the Restatement prescribes measuring tools. One tool examines the magnitude of change, indexing it by frequency, intensity and manner of use. Id. The change of the use of the existing easement would go from a pastoral use designed to accommodate the transport of timber by ox carts to markets to the transport of people by vehicles to residences. The new use would be " bigger, " " noisier, " and " uglier." Id. It would constitute an abnormal development of the dominant estate. Cf. United States v. 176. 10 Acres of Land, 558 F.Supp. 1379 (D.Mass. 1983) (Court ruled that " use of land for a single residential dwelling is a reasonable use that was foreseeable in 1852").
Even where the change in the easement's use (location) fits the dominant estate's normal development, it may not be one that unreasonably interferes with the enjoyment of the servient estate. Restatement (Third) of Property: Servitudes § 4.10 comment h. The test for unreasonable interference looks to the relevant circumstances, " particularly the purpose for which the servitude was created and the use of the servient estate made or reasonably anticipated at the time the easement was created." Id.
An easement to the north would " unreasonably interfere" with the defendants' enjoyment of their estate. A vehicular pathway would have to be constructed across fields subject to a restrictive covenant. The covenants enacted by CFT to preserve the open fields from vehicular intrusions express the importance of the restrictions to CFT's owners.
The court recognizes that the trial record fails to indicate whether the restrictive covenant was extended.
Nor would such a use be one that the parties reasonably anticipated in 1865. Use of the retained uncultivated land to the north for the purpose of developing a subdivision would not in 1865 have been reasonably foreseeable. See Guild v. Hinman, 1997 ME 120, 695 A.2d 1190, 1192 (Me. 1997).
8. Easement by Estoppel
Plaintiffs argue that the defendants are estopped from denying that an easement by necessity passes over property added to the servient estate. Their argument is based on the premise of estoppel by deed, which they claim applies to easements on the basis of an Indiana case.
In Massachusetts, courts have recognized the creation of an easement on general estoppel principles on the basis of misleading statements that were intended to, and did in fact, induce detrimental reliance, but cautioned that such a doctrine " if recognized, [must] be narrowly applied." Patel v. Planning Bd. of North Andover, 27 Mass.App.Ct. 477, 482, 539 N.E.2d 544 (1989). The Patel court explained that a narrow application would be required because of an owner's unfettered right to use his land and because " recognition of 'easements by estoppel' would detract from the integrity and reliability of land records." Id. The Patel court concluded that because there was no evidence that any abutting landowners relied on any communication, the doctrine of estoppel did not apply. Id. at 483. Additionally, the Restatement (Third) of Property: Servitudes § 2.10 recognizes the need for a party to " substantially change position in reasonable reliance on [a] representation."
The plaintiffs here have not shown there was any representation by the defendants intended to induce detrimental reliance. Likewise, plaintiffs have not shown that they did, in fact, reasonably rely on any representation to their detriment. Based on Massachusetts' narrow application of estoppel to easements, and the Restatement's indication that application should be based upon reasonable reliance that does not exist in this case, the court refuses to grant an easement by estoppel north to the County Road.
Plaintiffs' argument also fails owing to it being premised on the legal error that there was an easement extending north over Dexter's land. Plaintiffs argue that because the deed to Dexter's land described the northern boundary as " bounded on the North by the County road . . ., " Dexter received an implied right to travel on the County Road, under Casella v. Sneirson, 325 Mass. 85, 89, 89 N.E.2d 8 (1949).
In fact, Dexter's land was not bounded by the County Road, but rather the Mill Path. Plaintiffs even admit that Dexter's predecessor, Vincent, " may not have had frontage on the County Road." Plaintiffs then attempt to resolve this discrepancy in the deed by showing that Dexter's successors acquired the Cromwell lot north of the Mill Path. As stated above, this after-acquired property is not to be considered as a location for the easement, and certainly was not part of the parcel when it was subdivided and conveyed to the plaintiffs' predecessors. Therefore, the plaintiff's claim for an easement by estoppel extending north to the County Road must fail.
The " County road" referred to in Dexter's deed was likely the Mill Path, not the Edgartown West Tisbury Road that is now referred to as the " County Road."
B. Prescriptive Easement
Under Section 2.16 of the Restatement (Third) of Property: Servitudes, a prescriptive easement may fall under one of two definitions: (1) " a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, " or (2) " a use that is made pursuant to the terms of an intended but imperfectly created servitude." Here, the first definition applies.
To constitute such a prescriptive easement, the use must be adverse, open, notorious and continuous for a period of not less than twenty years. Stagman v. Kyhos, 19 Mass.App.Ct. 590, 592, 476 N.E.2d 257 (1985), citing Tucker v. Poch, 321 Mass. 321, 323, 73 N.E.2d 595 (1947). " A use is adverse even though made in the mistaken, but good faith, belief that the user was entitled to make it, " or if the user " acknowledges that the land is owned by another and the user has no right to make the use." Restatement (Third) of Property: Servitudes § 2.16 comment (f). The element of adverse use may be satisfied with the presumption that the unexplained use of another's land, which use is open and uninterrupted for twenty years, is adverse to the owner and under a claim of right. Truc v. Field, 269 Mass. 524, 528-29, 169 N.E. 428 (1930).
Use that is continuous but only on certain times or days does not " require a finding that the adverse use of the way was not continuous." Stagman, 19 Mass.App.Ct. at 593, citing Mahoney v. Heebner, 343 Mass. 770, 178 N.E.2d 26 (1961) (use only on weekends was continuous). In defining what use is adverse, the law generally presumes that an unexplained use is adverse. Restatement (Third) of Property: Servitudes § 2.16 comment f. The presumption fails to apply to use of land that is " wild and unenclosed." Id. Massachusetts follows the Restatement's treatment of wild and uncultivated land. Sea Pines Condo. III Ass'n v. Steffens, 61 Mass.App.Ct. 838, 848, 814 N.E.2d 752 (2004). This exception to the presumption of adverse use derives from the law's recognition that a lawful owner must be on " notice that another person is in occupancy of the land, under an apparent claim of right." Id. Therefore, " in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Paine v. Sexton, 88 Mass.App.Ct. 389, 391, 37 N.E.3d 1103 (2015).
Donald MacDonald failed to demonstrate that his use of the defendants' land was continuous or was done in a consistent manner over the route proposed for travel to the County Road. In the 1960s, he used the fields for hunting, entering them by walking along a footpath to Watcha Path, and then into the fields. Donald also used an ATV he purchased in 1986 to access the fields a few times. Starting in the early 1980s, Donald used the road of the CFT subdivision to access the fields.
Betsy MacDonald failed to establish that her use was adverse. In the 1970s, she used the area of Mayhew Memorial to go to the pathway to the fields where she walked a customary route three to four times a week. After the CFT subdivision road was installed, Betsy used that road to get to the fields in the 1980s and 1990s. During her walks in the period between 1970-1990, she only saw open, wild, uncultivated fields. Other than Richard Hamilton, who she saw once, she did not see any other people using the land, be it for agriculture, travel, or recreation.
Plaintiffs' only potential avenue for a prescriptive easement would be based on Betsy's routine of walking on defendant's land. Her walking during the period of 1970-1990 in open, wild uncultivated fields, failed to constitute an adverse use.
Even assuming such use established an easement over the proposed route to the Mill Path or County Road, such use does not permit the expansion of the scope of the easement that plaintiffs seek here. As a result, their claim for prescriptive easement must fail.
According to the Restatement (Third) of Property: Servitudes § 4.1 comment h, the relevant inquiry in determining the scope of a prescriptive easement lies in determining " what a landowner in the position of the owner of the servient estate should reasonably have expected to lose by failing to interrupt the adverse use before the prescriptive period had run." The easement's scope will not exactly mirror the type of use followed by the adverse user. Rather, the Restatement " shifts the focus from the adverse user to the expectations of a person situated in the position of the former servient owner." Id. This inquiry " addresses the expectations of an ordinary reasonable property owner as to the extent of the rights likely to be lost by failure to interrupt the adverse use." Id. This inquiry " is not directed at the actual expectations that the servient owner claims, or even proves, to have had during the prescriptive period." Id.
The extent of an easement is fixed by the use through which it was obtained. Baldwin v. Boston & Me. R.R. Co., 181 Mass. 166, 168, 63 N.E. 428 (1902). Lawless v. Trumbull, 343 Mass. 561, 562-63, 180 N.E.2d 80 (1962). However, the " use made during the prescriptive period does not fix the scope of the easement eternally." Glenn v. Poole, 12 Mass.App.Ct. 292, 293, 423 N.E.2d 1030 (1981), citing Lawless, 343 Mass. at 563. Use may change, over time, " [b]ut the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use." Glenn, 12 Mass.App.Ct. at 293. The easement cannot be overburdened by the change or variation in use. Id. at 295. Although " a mutation is not within the scope of normal development, " " [t]he progression from horse or ox teams to tractors and trucks is a normal development of the sort which, in the language of Restatement of Property § 479 comment b (1944), 'accords with common experience.'" Id. at 295 (citation omitted). In Swensen v. Marino, 306 Mass. 582, 587, 29 N.E.2d 15 (1940), the court stated that it " should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle . . . could not be employed at all for the means of transportation in common use by a succeeding generation."
The primary adverse use that is the basis for the plaintiffs' claimed prescriptive easement over the defendant's property was Betsy MacDonald walking her route three to four times per week. Defendants failed to interrupt the adverse use of walking across their property. The court cannot say that the defendants " should reasonably have expected" for the use to expand from one person walking on their property three to four times per week, to multiple vehicles traveling daily across their property. The progression from one person walking to multiple vehicles driving is not " within the scope of normal development."
Massachusetts courts have allowed for some change in the extent of use, but all such cases involve a natural progression that is far less dramatic than what the plaintiffs seek here. See Hodgkins v. Bianchini, 323 Mass. 169, 172-73, 80 N.E.2d 464 (1948) (an easement originally confined to cart road did not preclude travel by gravel trucks); Baldwin, 181 Mass. at 169-70 (easement originally permitted to serve one dwelling permitted to serve several dwellings); Parks v. Bishop, 120 Mass. 340, 342 (1876) (prescriptive easement that served a manufactory could serve a manufactory and storehouse). In fact, Massachusetts courts have refused to allow the change in use where, as here, the intensity of use increased dramatically. See Lawless, 343 Mass. at 564 (general right to travel by vehicles would overload an easement in circumstances where the prior use of the way was relatively infrequent); Swensen, 306 Mass. at 586-87 (hauling of sand and gravel was so intense as to impermissibly disturb occupants and the easement was held to be overloaded).
To permit the change in extent of use from a single person walking, to multiple vehicles traveling potentially daily across the property, would be a dramatic increase in the intensity of use. The plaintiffs seek to impermissibly overburden any potential prescriptive easement, and thus their claim must fail.
ORDER
Based on the foregoing, the court issues the following ORDERS ; Plaintiffs' and Starbuck Trust's requests for Declaratory Judgments that they possess an easement by necessity or prescription over CFT's land are DENIED . Accordingly, CFT's requests for Declaratory Judgments are DISMISSED . The court DISMISSES CFT's abuse of process action and Plaintiffs' and Starbucks Trust's requests for injunctive relief.