Opinion
11-P-767
02-21-2012
STEPHEN B. ROWAN & others v. ESTHER L. STEFFENS & others.
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 plaintiffs, owners and operators of The Old Sea Pines Inn, appeal from a judgment that prevents them from relocating an easement in favor of the defendants and determines, further, that they have no right of access to Locust Lane East. The plaintiffs argue that in concluding that they could not relocate the Bickford easement, the trial judge improperly applied the test adopted in M.P.M. Builders, LLC. v. Dwyer, 442 Mass. 87, 90-91 (2004). We affirm so much of the judgment as holds that the plaintiffs may not unilaterally relocate the easement.
Now called Flying Dragon Way.
We need not resolve whether the plaintiffs have any interest or right of access in Locust Lane East (now Flying Dragon Way) because the judge did not err in concluding that the proposed unilateral relocation of the Bickford easement does not satisfy the M.P.M. Builders test. No controversy remains regarding whether the plaintiffs have an interest in the way. See Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159 (1985). Indeed, the plaintiffs sought no such declaration in their complaint, and the defendants filed no counterclaim seeking a negative determination in that regard. Moreover, the record and the parties before us are inadequate to resolve whether Locust Lane East is a 'way' within the meaning of the derelict fee statute, G. L. c. 183, § 58, only with respect to lots within the Sea Pines East Subdivision plan or with respect to land outside that subdivision as well.
Accordingly, we vacate so much of the judgment as declares that the plaintiffs have no right of access to Locust Lane East.
Under M.P.M. Builders, supra, a servient estate owner may relocate an easement 'to permit the normal use or development of the servient estate,' only if the relocation does not '(a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.' Id. at 90, quoting from Restatement (Third) of Property (Servitudes) § 4.8(3) (2000). Here, the judge carefully considered the evidence, conducted a view, and concluded that the proposed relocation of the easement did not satisfy the M.P.M. Builders requirements. The judge's findings are not clearly erroneous and support this determination.
The judge found that relocating the Bickford easement--which runs over the driveway and parking area of the Old Sea Pines Inn to Route 6A -- to Locust Lane East, a paper street in which the defendants and others already have preexisting rights, would essentially extinguish the Bickford easement. He also concluded that such a relocation would significantly lessen the utility and increase the burdens on the defendants in using and enjoying the easement, and frustrate the easement's purpose. The judge did not err.
We agree with the judge's characterization of the proposed relocation as, in fact, an attempt to extinguish a deeded easement over the plaintiffs's property and to replace it with a right of passage over property of another. Put differently, the plaintiffs sought not to relocate the Bickford easement elsewhere on the servient estate, but to extinguish it entirely, and replace it with an easement over Locust Lane East, in which it was undisputed that the defendants already possessed a right of access. However characterized, the proposed relocation does violence to the principle that changes made by a servient estate owner must preserve the purpose for which the easement was originally granted. See id. at 91. We also agree with the judge that implicit in M.P.M. Builders, supra, is the premise that unilateral relocation of an easement ordinarily must be to a location elsewhere upon the burdened property, certainly not to the property of others in which the objecting easement holder already possesses such an easement.
We reject the plaintiffs' contention that incorporating a turning area on their property into the proposed easement at the behest of the Brewster Fire Department amounts to a relocation of the Bickford easement to their property.
The judge's factual findings also support his conclusion that the proposed relocation would decrease the utility and increase the burdens on the defendants's use and enjoyment of the easement. Although Locust Lane East would provide a shorter and more direct path from the defendants' property to Route 6A, the judge saw for himself during a view that relocating the easement to Locust Lane East would reduce the sight line of oncoming traffic on Route 6A and diminish the defendants' ability to enter that busy thoroughfare safely. Additionally, the proposed relocation would reduce the defendants' privacy and increase the noise level at their home by virtue of the clearing and elimination of the wooded buffer between their home and Route 6A. Compare Carlin v. Cohen, 73 Mass. App. Ct. 106, 110 (2008) (affirming judgment applying M.P.M. Builders and taking into account parties' privacy).
The judge was also free to reject the plaintiffs' contention that the purpose of the easement would not be frustrated because the primary purpose for which it was created no longer exists. While evidence indicated that Faith Bickford used it to travel from her residence to the Sea Pines School, she also used it to access the main highway over the common driveway. Indeed, there would have been no need to specify that the easement extended the entire length of the driveway to the main highway (Route 6A) were its purpose solely to permit access between her property and that of the Sea Pines School.
We reject the contention that the judge misapplied and added elements to M.P.M. Builders. As discussed earlier, the judge did not err in concluding that the 'relocation' was in fact an extinguishment, and even were that not so, his factual findings amply support the conclusion that the relocation would decrease the utility and increase the burdens on the defendants and frustrate the purpose of the easement. Nor did the judge add a new requirement by observing that the defendants' daily trips across the driveway and parking lot had only a de minimis impact on the plaintiffs' use of their property, whereas relocation would have a significant negative impact on the defendants. Such a determination has obvious bearing on whether defendants' use of the easement prevents normal use, development and enjoyment of the servient estate. See M.P.M. Builders, supra at 90-91.
The judgment prohibiting the plaintiffs from extinguishing the easement over their property in favor of the defendants and unilaterally relocating it to Locust Lane East is affirmed. The remainder of the judgment is vacated.
So ordered.
By the Court (Grasso, Fecteau & Sullivan, JJ.),