Opinion
11-P-760
03-06-2012
JUDITH M. POLCHLOPEK v. DIVISION OF FISHERIES AND WILDLIFE & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the allowance of summary judgment in favor of the defendants by a judge of the Land Court who determined, in connection with the plaintiff's amended complaint to quiet title, that an order of taking by the Commonwealth extinguished whatever easement by implication, if any, the plaintiff may have had, as it was not 'of record.' We affirm.
The plaintiff, owner of a parcel of approximately twenty-three acres of landlocked, undeveloped land in the town of Dartmouth, brought an action in the Land Court seeking a declaration that she holds an easement by implication over an ancient cart path called 'Woods Road,' extending from Division Road easterly across land owned by the Commonwealth and then southerly along the northeastern border of land owned by Stephen J. Weiner. At the summary judgment stage, the judge reviewed the record and determined that the Commonwealth had obtained title in fee simple to its parcel in 1999 by the order of taking. With regard to any nonpossessory rights in the parcel, the taking stated, in relevant part: 'Further excepted from the rights herein taken are (1) all rights-of-way of record now lawfully still in force and in or upon said area or areas hereby taken . . . .'
The road thereafter travels in a southerly direction, roughly tracking the parcels owned by the plaintiff and Weiner.
In Massachusetts, 'an eminent domain taking in fee simple extinguishes all other interests in the subject property. In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate.' New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374, 376 (1992) (citations omitted). Here, the Commonwealth took 'in fee simple absolute.' The plaintiff therefore cannot maintain her easement absent evidence that, upon the record before us, Woods Road constitutes a right of way 'of record.'
In an attempt to bolster the force of the asserted easement, the plaintiff suggests an easement created by implication must be considered an easement of record, relying on Labounty v. Vickers, 352 Mass. 337 (1967). Such reliance is misplaced. In Labounty, defendants challenged the creation and enforceability of an implied easement to access a neighborhood beach, under G. L. c. 184, § 25. While the deeds held by the plaintiffs did not contain express easements to access the beach, they made explicit reference to a recorded plan in which the right of way appeared in both a visual representation and verbal description. Labounty, supra, at 344-345. The court held the plan was thereby incorporated into the legal deed, and was recorded in due course. Put another way, recordation of the deed 'create[d]' the easement. See Labounty, supra at 347.
Contrary to the suggestion made by the plaintiff, the easement in Labounty was deemed recorded and therefore enforceable on the facts of the matter presented, namely on the grounds that the deeds containing the description of the easement were properly recorded. The facts here are distinguishable as neither plans containing an easement nor the deed was recorded in the registry of deeds. As was recently stated: 'A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.' Reagan v. Brissey, 446 Mass. 452, 458 (2006), quoting Labounty, supra. Here, as there is no easement 'of record,' any easement the plaintiff may have is not excepted from the order of taking.
The plaintiff also bases her assertion upon cases discussing the impact of the statutory right to install utilities upon implied easements held to arise 'by deed,' and contends that language therein supports that an implied easement was a right 'of record' that survived the taking. However, even if an easement were held to arise 'by deed,' the plaintiff cannot avail herself of the protections set forth in the 1999 order of taking. The issue thus becomes whether there is a difference in meaning between 'rights of way of record' and an easement that arises 'by deed.'
See Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 439 (2006), and Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 392 (2005).
In our view, the significance of recording an easement lies in its permanent nature, and that recordation does not require speculative inquiry into the original intention of the parties. To the extent the plaintiff contends the record demonstrates an easement by implication or by necessity, the record contains no evidence that the plaintiff held any easement 'of record.'
Under Massachusetts law, an easement can only arise by grant, prescription, estoppel or implication. Silverlieb v. Hebshie, 33 Mass. App. Ct. 911, 911- 913 (1992). The plaintiff claims that she has an easement by necessity, and that it arises by deed and, therefore, is 'of record.' See New England Continental Media, Inc. v. Milton, supra at 378, ('An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel'). Under the theory of necessity, it is well-established that the 'owner of land may make use of one part of his land for the benefit of another part in such a way that upon a severance of the title[,] an easement, . . . may arise that corresponds to the use which was previously made of the land while it was under common ownership.' Krinsky v. Hoffman, 326 Mass. 683, 687 (1951), citing Joyce v. Devaney, 322 Mass. 544, 549 (1948). It must be noted, however, that such an easement 'is not expressed in the deed.' Ibid. Moreover, as has been expressed in several cases, as it is with most, if not all, easements that arise other than by grant, an easement by necessity requires a factual determination as to whether an easement was necessary.
The motion judge, recognizing that some question appeared to remain as to whether the lots at issue were in common ownership so as to give rise to an implied easement, deemed the issue unnecessary to resolve. We, likewise, need not address the question.
As the judge's decision aptly suggests, an implied easement, like a prescriptive easement, requires a court of record to interpret deeds to determine interests because they do not appear 'of record;' while such interests may arise by deed, the need for interpretation is the critical difference between implied easements, including those that arise by necessity, and 'granted' easements 'of record.' The difference between an express easement 'by grant' and one implied by necessity is evident because an implied easement cannot be located in the recording system but instead 'must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.' Dale v. Bedal, 305 Mass. 102, 103 (1940). 'The burden of proving the intent of the parties to create an easement which is unexpressed in terms in a deed is upon the party asserting it.' Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933).
Moreover, in Massachusetts, the term 'of record' for nonregistered land means that the instrument giving title is recorded in the registry of deeds of the county in which the land lies or filed with the Probate Court. See G. L. c. 183, § 4; G. L. c. 215, § 1. In Carter v. Peak, 138 Mass. 439, 440-441 (1885), the Supreme Judicial Court stated that '[b]y our system, the registry of deeds is the proper place for recording deeds or instruments conveying land, or any interest therein, and when the Legislature speaks of such deed or instrument as being recorded, or as appearing of record, the fair inference, unless controlled by the context, is that it refers to the registry of deeds, the place where any person examining a title would look for such records.' Since 1897, the phrase 'of record' also has been construed to include records of the Probate Court. Dyer v. Scott, 253 Mass. 430, 431-432 (1925). Additionally, the court has recognized that 'good title of record' stands for an interest created by means of a recorded instrument. See Noyes v. Johnson, 139 Mass. 436, 439 (1885) (title by adverse possession may be 'good' but not 'good title by record').
As no case has come to our attention that has changed the meaning 'of record,' or which equates 'granted' easements with those found to be implied or prescriptive, for purposes of determining whether the subject easements are 'of record,' we affirm the decision of the Land Court judge. Consequently, the judge's decision declaring that the Commonwealth's land taking has extinguished whatever easement the plaintiff may have held, if any, has not been shown to be erroneous.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),