64 Mass. App. Ct. 383 | Mass. App. Ct. | 2005
Based on his conclusion that the defendant Frank Gobbi, Jr., has no access rights serving the land for which he obtained subdivision approval from the defendant planning board of Westwood (board), a Land Court judge annulled the board’s approval. We conclude that Gobbi owns the fee in por
We recite facts and procedure necessary to an understanding of the case, reserving certain details for our discussion of the issues. A sketch depicting the various parcels and ways is attached as an Appendix to assist the reader.
In December of 1998, Gobbi filed with the board a plan entitled “Presidential Heights Definitive Subdivision Plan of Land in Westwood, MA” (definitive plan), proposing a subdivision of land located off High Street in Westwood into two lots. Gobbi also submitted an application for approval of the definitive plan. That plan shows a proposed forty-foot way from High Street to the subdivision, encompassing the disputed way. The way services the two proposed subdivision lots, one containing 40,202 square feet and a second containing 676,690 square feet (approximately fifteen and one-half acres).
Gobbi’s application requested that the planning board waive certain rules and regulations to allow the submission without a traffic study; to allow a roadway over the disputed way twenty-four feet in width; and to allow construction of the roadway without a sidewalk. The definitive plan indicated that retaining walls were to be constructed within the disputed way in front of two lots, lot A and the lot owned by the Adamses (Adams lot), which Gobbi did not own, abutting the way.
The board approved the definitive plan in May of 1999, and filed its decision with the Westwood town clerk. The decision
Three lots owned by others (lot A, lot 2, and the Adams lot
Lots A and 2 abut High Street as well as the disputed way. The disputed way provides the sole access from High Street to the Adams lot. The Adamses have a deeded easement over the disputed way to their lot, as do the owners of the other two lots. The Adamses maintain a driveway from the disputed way to a garage and parking area at the northeasterly side of the home on the lot. Currently, the traveled portion of the disputed way terminates at the end of the Adamses’ driveway and does not continue to the northwesterly boundary of the Adams lot or to the Gobbi lot.
Title to Gobbi’s land derives ultimately from Perley and Margaret Coombs. Margaret Coombs acquired all of the land in question, including the Gobbi land and what are now lots A, 2, and the Adams lot, and including what would become the disputed way, in 1927, later conveying the premises through a
The Coombses were also parties to the 1957 exchange of deeds. That exchange was designed to cure a nine-foot zoning set back encroachment by the house on the Adams lot (then owned by the Coombses), by relocating a pre-existing roadway over the Coombses’ land.
After a trial, a Land Court judge determined that by retroactive operation of the derelict fee statute, G. L. c. 183, § 58, which had been inserted originally by St. 1971, c. 684, §§ 1, 2,
The judge also ruled that the board did not exceed its authority in imposing the conditions challenged by Gobbi, but ruled that the board impermissibly had reserved for future determination the issues of the design, location, and construction of any retaining walls, and the drainage system for the proposed development.
On appeal, Gobbi argues that the judge erred in concluding that he has no right of access over, or ownership of, the disputed way and in upholding the conditions imposed by the board.
The first of the three deeds ran from the Mullenses and the Franklins to the Coombses, and conveyed to the Coombses land largely contained within what is now the Adams lot.
The second of the three deeds ran from the Coombses and the Mullenses, as grantors, to the Franklins (who, at that time, owned lot A, as shown in the attached sketch).
The third of the three deeds ran from the Coombses and the Franklins to the Mullenses, and again conveyed land consisting largely of land the Mullenses already owned (lot 2, as shown on the attached sketch). However, it did include approximately nine feet of land within the original roadway owned by the Coombses and described the land conveyed as bounded by the way. By operation of the derelict fee statute, the deed passed to the Mullenses the interest of the Coombses in the fee of the way abutting lot 2.
Upon exchange of the 1957 deeds, then, (i) the Franklins owned the. fee in a strip of the disputed way, approximately nine feet wide, abutting lot A, and they owned to the centerline of the way adjacent to the strip of additional land along their northwest border conveyed to them by the Coombses; (ii) the Mullenses owned the fee in the disputed way abutting the newly configured lot 2, to the portion of the way retained by the Franklins; and (iii) the Coombses owned the fee in the way abutting the Adams lot, again to the portion retained by the Franklins (and again only to the centerline of the portion abutting the strip along the Franklins’ northwestern border).
In 1958, the Coombses conveyed to Janice P. Grenon (Gob-bi’s predecessor in interest) all of their remaining land except the Adams lot, under a deed that simply excluded the Adams lot and the other land (including that conveyed to the Mullenses and Franklins) they previously had conveyed. Accordingly, Grenon acquired thereby the interest of the Coombses in the fee of the disputed way abutting the Adams lot. In 1959, the
2. Easement rights in the disputed way. We now turn to Gob-bi’s claim that he holds easement rights over the disputed way for the benefit of his land. While it is true that since passage of the derelict fee statute, G. L. c. 183, § 58, see note 6, supra, “extrinsic evidence may not be used to prove the grantor’s intent to retain [a] fee in [a] right of way,” Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 804 (2003), extrinsic evidence is available to determine the existence, nature, scope, and extent of easement rights in a way; the derelict fee statute pertains only to the question of ownership of the fee. With respect to the existence of an easement, we look, rather, to the intention of the parties regarding the creation of the easement or right of way, determined 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,” Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990), to determine the existence and attributes of a right of way.
“The extent of an easement depends on the circumstances of its creation.” Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (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.’ ” Ibid., quoting from J.S. Lang Engr. v. Wilkins Potter Press, 246 Mass. 529, 532 (1923). See Hewitt v. Perry, 309 Mass. 100, 105 (1941) (extent of an easement is determined by the language of the grant, construed in light of attending circumstances).
The circumstances surrounding the exchange of the 1957
3. Right to install utilities. Gobbi’s contention that he is entitled, under G. L. c. 187, § 5,
The right to lay utilities in a way does not arise as a necessary incident to the right to pass and repass over the way. See Nantucket Conservation Foundation, Inc. v. Russell Mgmt., Inc., 2 Mass. App. Ct. 868, 868 (1974), and cases cited therein. Any such right (beyond rights contained in language of express grant or reservation) arises solely by operation of G. L. c. 187, § 5. In Cumbie v. Goldsmith, 387 Mass. 409, 411-412 n.8 (1982), the Supreme Judicial Court concluded that G. L. c. 187, § 5, does not authorize the holder of a prescriptive easement to lay utilities in the land burdened by the easement. That conclusion rested in part on the language of the statute itself, which applies to “[t]he owner or owners of real estate abutting on a private
“ ‘[t]he extent of an easement arising by prescription, unlike an easement by grant... is fixed by the use through which it was created. . . . [T]he use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest. . . . [Nevertheless,] the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use.’ ”
Cumbie v. Goldsmith, supra at 411-412 n.8, quoting from Lawless v. Trumball, 343 Mass. 561, 562-563 (1962). In Nylander v. Potter, 423 Mass. 158, 160 n.6 (1996), the court in dictum similarly expressed its view that the statute would not entitle an abutter to lay utilities in a way that has been discontinued as a public way.
We conclude that the present case stands differently. By contrast to the rights in Cumbie v. Goldsmith, supra, which arose by prescription and were limited to the uses that created them, or the circumstances in Nylander v. Potter, supra at 160 n.6, 162-163, in which no easement rights arose at all and the claim of rights did not rest on any deed, Gobbi’s easement rights in the disputed way arise by implication or necessity, based on the presumed intention of the parties to the 1957 deeds.
4. Planning board conditions. Gobbi objects to certain conditions imposed by the planning board on its approval of his
The trial judge also correctly concluded that the requirement that the design, location, and construction of any retaining walls and drainage system be reviewed and approved by the board in consultation with the town engineer improperly reserved to the board for future decision those issues of substance. See Weld v. Board of Appeals of Gloucester, 345 Mass. 376, 378-379 (1963). Cf. Miles v. Planning Bd. of Millbury, 29 Mass. App. Ct. 951 (1990). The board’s decision approving the definitive plan was therefore appropriately annulled.
5. Conclusion. Gobbi holds a right of way by implication or necessity over the disputed way, and owns the fee in a portion of the northerly end of the right of way. Gobbi also has the right to install utilities in the disputed way to serve the Gobbi land. Adams has no fee interest in the right of way, but has easement rights in the right of way for access to the Adams lot as set forth in the 1957 deed from the Mullens and Franklins to Coombs. The Mullens and their successors own a portion of the fee in the right of way at its southerly end and have rights to use the way as described in the 1957 deed from Coombs and Franklins to Mullens. The Franklins and their successors own
The judgment is to be modified to declare Gobbi’s rights in the disputed way as described in this opinion, and is otherwise affirmed.
So ordered.
This appeal arises out of the consolidation of three actions. In the first action, Daniel T. and Sandra L. Adams and Richard R. and Nancy R. Mobley, Lori Amara, and Kevin J. and Ann N. Becker appealed the subdivision plan approval to the Land Court, pursuant to G. L. c. 41, § 81BB. The second action is Gobbi’s challenge, filed in the Superior Court, of the board’s imposition of certain conditions to the approval of the subdivision plan and the board’s reservation of issues concerning the retaining wall and the drainage for future consideration. In the third action, filed in the Land Court, the Adamses sought a declaration of the rights of the parties in the disputed right of way, pursuant to G. L. c. 231 A. The judge was specially designated to hear and determine Gobbi’s Superior Court complaint. See G. L. c. 211B, § 9.
The Franklins owned lot A, the Mullenses owned lot 2, and the Coombses owned what is now the Adams lot and the land now owned by Gobbi. See discussion and Appendix, infra.
General Laws c. 183, § 58, as amended through St. 1990, c. 378, §§ 1, 2, provides: “Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.”
Consistent with his conclusion that Gobbi holds no right to use the right of way, the judge ruled that Gobbi likewise has no right, pursuant to G. L. c. 187, § 5, to install utilities.
The only parcels abutting the way, lot 2 and lot A, conveyed prior to 1957 were conveyed under deeds that made no reference to the way as a boundary; the land that had by 1957 become the roadway was described in those instruments as “other land of Margaret C. Coombs.” A third parcel was conveyed to a third party under a 1945 deed that made reference to the way as a boundary, but that parcel was conveyed back to the Coombses shortly thereafter.
Each of the three deeds included an express grant of rights to use the disputed way.
It included a small additional sliver of land along the southeastern boundary of the Adams lot, between that parcel and the Mullenses’ land, but that fact is irrelevant for purposes of the issues in this case.
As the Mullenses held no interest in the land conveyed under that deed, we consider the effect of the derelict fee statute only on land owned by the Coombses.
As the Coombses retained land opposite the land conveyed, by the terms of the statute the conveyance went only to the centerline of the way.
Because the Coombses owned no land opposite the land conveyed, the deed passed their interest in the fee across the entire way, and not merely to its centerline.
The conveyances as shown in part 1, supra, also slightly altered a boundary between the lots of Coombs and Mullens, slightly altered a boundary between the lots of Coombs and FranHin, and conveyed a parcel of land from Coombs to Franklin, beyond the terminus of the disputed way.
Indeed, so long as the Coombses retained ownership of the fee in the right of way, any language purporting to create an easement benefiting the Coombses’ own land would have been of no effect. See Goldstein v. Beal, 317 Mass. 750, 757 (1945). See also Cheeper v. Graves, 32 Mass. App. Ct. 601, 606 (1992).
Although the subsequent deed from the Coombses to Grenon made no reference to rights to pass over the disputed way, none was necessary to transfer the rights. See Cheeper v. Graves, supra at 603, 605; G. L. c. 183, § 15.
The statute, G. L. c. 187, § 5, as amended through St. 1997, c. 164, §§ 280, 281, provides in part that “[t]he owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways . . . .”
We note again that with respect to the upper end of the disputed way, Gobbi, for the most part, owns the fee with the unquestionable right to install utilities.
Even if the statute did not apply by its terms, we note the general rule that an easement carries with it every right necessary for its enjoyment. Sullivan v. Donohoe, 287 Mass. 265, 267 (1934). Though, as noted, such rights did not include at common law the right to lay utilities, the continued vitality of that rule is subject to question. See Nantucket Conservation Foundation, Inc. v. Russell Mgmt., Inc., 380 Mass. at 219.
The conditions include: (1) reduction in the pavement width to twenty feet; (2) limitation of two buildable lots on the entire area, with the further requirement that the two lot maximum condition be noted on the definitive plan; and (3) requirement for review and approval by the planning board, in consultation with the town engineer, of the design location and construction of any retaining walls and drainage systems.
Though the Land Court judge annulled the subdivision approval based on his conclusion that Gobbi was without the right of access on which the approval relied, his conclusion (with which we agree) that the board improperly reserved for future determination an issue of substance nonetheless requires that the approval be annulled.