In this case involving registered land, we consider, among other things, the effect of a reduction by the owner of the servient estate in the dimensions of an easement created for the purpose of permitting the easement holder access to a lot that
1. Background and prior proceedings. We recite the facts based on the detailed findings of the trial judge. For the most part, the facts are undisputed. In 1969, Clifford J. Martin purchased a parcel of land of approximately one-third acre on the Medford-Somerville line, in an industrial-commercial district. Like all the lots on that block, Martin’s title to the parcel is held under a transfer certificate of title issued by the Land Court when the property was divided and title was transferred from single ownership. The parcel, known as 200-R (rear) Boston Avenue, and designated lot 3A on Land Court Plan No. 61991 (J-Plan), was registered by the Land Court in 1940, when the J-Plan was created;
According to the transfer certificate of title, lot 3A is “subject to and has the benefit of” eight easements, including an easement for travel over lots 4A, 10 and 12
Three of the lots over which Way A extends, lots 4A, 10, and 12, were also issued certificates of title by the Land Court in 1940, following a conveyance that year by the Textile Realty Company to the Russell Box Company. See note 2, supra. Lot 4A is to the southwest of lot 3A, and lots 10 and 12 are to the southeast of lot 4A. Simmons Properties, LLC (Simmons), has held title to these lots, as well as to lot 1A, to the southwest of lot 4A, since 1993. When Simmons acquired its parcels, a large
Lot 4A is benefited (as is lot 3A) by an easement designated Way E on the J-Plan, which intersects with Way A; this easement runs northwest along the northern boundary of lot 4A and the southern boundary of lot 3A. According to the J-Plan, most of Way E is located on lot 3A, although a portion of Way E is located on lot 4A. At the time of its approval by the Land Court in 1940, and as shown on the J-Plan, Way E was covered in part, but not completely, by a raised wooden platform; that platform no longer exists.
Immediately after its acquisition of lots 4A, 10, and 12, Simmons made a number of alterations to these parcels. It demolished the two smaller buildings, indicated on the J-Plan, that had been attached to the building now known as 196 Boston Avenue. It also refurbished the buildings at 196 and 200 Boston Avenue. At 196 Boston Avenue, Simmons installed an entrance foyer adjacent to an elevator shaft that has been attached to the building since before 1940,
In August, 2007, Martin, acting pro se, filed a complaint in the Land Court asserting fifteen separate acts of encroachment upon or ongoing acts of interference with his right to use the easement over Way A, as well as interference with the various sewer, water, sprinkler, utility, and storm drain easements appurtenant to lot 3A. In addition to the encroachments placed in Way A by Sim
In 2008, Martin and Simmons filed cross-motions for summary judgment. After a hearing in July, 2008, a Land Court judge, who was also the trial judge, allowed in part and denied in part each of the parties’ motions in January, 2009.
The judge suspended closing arguments in order to allow both sides to file posttrial memoranda and proposed findings of fact and rulings of law (including a late filing by Martin to which Simmons subsequently filed a response). Closing arguments ultimately took place in December, 2009, and in April, 2011, the
The judge concluded that, although Simmons had made certain encroachments into Way A as a result of the work on the buildings at 196 and 200 Boston Avenue and other contemporaneous improvements to its parcels, and although other encroachments on Way A had existed before Simmons’s acquisition of its lots, Way A “functions fully adequately for passage by all current trucks and other vehicles”;
Martin appealed, and the Appeals Court reversed the judgment in part, affirmed in part, and remanded for further findings on the question whether Simmons had adopted or maintained
2. Discussion, a. Standard of review. Upon appeal, we accept a trial judge’s findings of fact unless they are “clearly erroneous,” Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010), and do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings. Id. at 637, citing Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997). We uphold the findings of a judge who saw and heard the witnesses unless we are of the “definite and firm conviction that a mistake” has been made. Id. at 637, quoting Kendall v. Selvaggio, 413 Mass. 618, 620-621 (1992). See Brandao v. DoCanto, 80 Mass. App. Ct. 151, 155, quoting Demoulas v. Demoulas Super Mkts., Inc., supra (finding cannot be clearly erroneous where there are two permissible views of evidence). Our review of a trial judge’s conclusions of law, however, is de novo. Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 351 (2011).
b. Easement rights. “An affirmative easement ‘creates a non-
c. Martin’s rights to use Way A. Martin does not dispute that, as he testified at trial, he has at all times been able to pass over Way A to reach his lot, and Simmons has never suggested to him that he may not travel on Way A over its property. Nonetheless, Martin asserts that, because his easement rights are for the benefit of registered land, he is entitled to the use of the full extent of Way A as shown on the J-Plan that is incorporated in his deed. He contends that all of the encroachments now existing on Way A, whether placed there by Simmons or existing prior to Simmons’s acquisition of its parcels in 1993, must be removed at Simmons’s expense.
In M.P.M. Builders, supra at 91, we adopted § 4.8(3) of the Restatement, which provides:
“Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servi-ent estate, but only if the changes do not (a) significantly*10 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.”
Restatement, supra at § 4.8(3). Observing that “[a]n easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose,” we concluded that the “balanced” approach to easement rights set forth in the Restatement would best maximize the value of property to the owner of a servient estate while protecting the rights of an easement holder. M.P.M. Builders, supra at 91-92. We determined that adoption of § 4.8(3) of the Restatement would strike “an appropriate balance between the interests of the respective estate owners.” M.P.M. Builders, supra at 91. Noting that certain of our prior cases had stated that an easement holder could not unilaterally relocate an easement, we concluded that the rule set forth in § 4.8(3) provides a “fair tradeoff for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate,” and permits a servient estate holder “to make the fullest use of his or her property allowed by law, subject only to the requirement that he or she not damage other vested rights holders.” Id. at 91, quoting Restatement, supra at § 4.8(3), and Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1237 (Colo. 2001).
The party asserting the benefit of an easement has the burden of proving its existence, Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990), its nature, and its extent. Hamouda v. Harris, 66 Mass. App. Ct. 22, 24 n.l (2006), quoting Levy v. Reardon, 43 Mass. App. Ct. 431, 434 (1997), overruled on other grounds, Queler v. Skowron, 438 Mass. 304 (2002). Stating that our holding in M.P.M. Builders, supra, is inapplicable, Martin argues, as he did at trial, that because his property is registered land and he holds a certificate of title from the Land Court, his easement is absolute to the full extent indicated on the Land Court plan,
The judge found that the entrance to Way A, as currently configured, “is a more than adequate opening, and Martin does not appear to disagree, conceding that there has never been any adverse impact on his ability to use Way A in this area (or any other, for that matter) for passage to and from his land.” The judge found also that the entrance foyer and loading dock attached to 196 Boston Avenue, although extending for a longer distance along the building than did the elevator shaft, protrude no further into Way A than the elevator shaft, which is indicated as an obstruction into Way A on the J-Plan. He determined that, notwithstanding any of the other intrusions, including the depressed entrance to 200 Boston Avenue, the parking spaces, the utility poles, and the curbing and landscaping, Way A “functions without difficulty” and “functions fully adequately for passage by all current trucks and other vehicles that make use of the way.” He determined further that Way A “at all points along its length is adequate to the current use and certainly, to any use which might be claimed by the owner of lot 3A,” and that no trucks making deliveries and receiving goods “have had any difficulty navigating Way A as it is currently improved,” even though “many of the trucks today on the way are larger than those which would have existed when the easements arose in 1940.” The judge concluded, “[A]s a factual matter, . . . there is a more than sufficient width currently provided within the unobstructed limit of Way A to accommodate current and reasonably foreseeable uses of the easement area by those entitled to do so.”
In reversing this aspect of the judgment, the Appeals Court instead concluded that Martin is entitled to use of the full width of the easement as shown on the plan, because it could identify “no case that holds that only a convenient passage is intended when a right of way is reserved over a way defined and located by reference to a Land Court plan.” Martin v. Simmons Props.,
Moreover, although the property at issue in M.P.M. Builders, supra, was recorded land, nothing in the analysis distinguished between registered and recorded land, nor have our prior decisions that concern modifications to an easement. See, e.g., Goldstein v. Beal, 317 Mass. 750, 755 (1945) (“the same principles that govern the effect to be given a plan in the case of unregistered land apply where the land is registered”). We discern nothing in the land registration act, G. L. c. 185, to support a different understanding of the law of easements concerning registered land as opposed to recorded land. The act states explicitly that an “owner of registered land may convey, mortgage, lease, change or otherwise deal with it as fully as if it had not been registered.” G. L. c. 185, § 57.
The purpose of the land registration act is to ensure that holders of parcels registered under the act enjoy certainty of title to their property. See G. L. c. 185, § 57; Doyle v. Commonwealth, 444 Mass. 686, 690 (2005), quoting Wild v. Constantini, 415 Mass. 663, 668 (1993); McMullen v. Porch, 286 Mass. 383, 389 (1934). The act provides that “[ejvery plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate . . . .” G. L. c. 185, § 46. Such judgment “shall be conclusive upon and
The act provides also that, when land is registered, the judgment of registration “shall set forth” all easements to which the land is subject. G. L. c. 185, § 47. The act prohibits the establishment of easements by prescription, G. L. c. 185, § 53,
We consider the public policy favoring socially productive use of land, set forth in comment b to § 4.9 of the Restatement, supra, to be a useful starting point in balancing the interests of the easement holder and the servient land owner. That portion of the Restatement provides:
“In resolving conflicts among the parties to servitudes, the public policy favoring socially productive use of land generally leads to striking a balance that maximizes the aggregate utility of the servitude and the servient estate. Socially productive uses of land include maintaining stable neighborhoods, conserving agricultural lands and open space, and preservation of historic sites, as well as development for residential, commercial, recreational, and industrial uses. Aggregate utility is generally produced by interpreting an*14 easement to strike a balance that maximizes its utility in serving the purpose intended while minimizing the impact on the servient estate. In the case of conservation, open space, and historic preservation servitudes, however, seeking to minimize the impact on the servient estate is not appropriate. Interpreting the servitude to maximize the effectiveness of the servitude in accomplishing its purpose may produce the greatest aggregate utility.”
Restatement, supra at § 4.9 comment b. See Cater v. Bednarek, 462 Mass. 523, 534 (2012), citing Restatement, supra at § 4.8 comment b, and id. at § 4.10 comment b. Consistent with the meaning of an easement, and in furtherance of the policy of maximizing the beneficial use available to the servient landholder,
“[t]he person who holds the land burdened by a servitude is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement or profit. An easement is a nonpossessory interest that carves out specific uses for the servitude beneficiary. All residual use rights remain in the possessory estate — the servient estate.”
Restatement, supra at § 4.9 comment c.
In analyzing the extent of an easement, we look “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 which they are chargeable to determine the existence and attributes of a right of way.” Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005), quoting Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1980). Doubts as to the extent of a restriction in an easement “are resolved in favor of the freedom of land from servitude.” St. Botolph Club, Inc. v. Brookline Trust Co., 292 Mass. 430, 433 (1935).
Whether the use by the owner of the servient estate is reasonable depends on the facts and circumstances in a given case. Guillet v. Livernois, 297 Mass. 337, 341 (1937). See Johnson v. Kinnicutt, 2 Cush. 153, 157 (1848) (to determine whether alleged encumbrance “materially” interferes with right of way,
Of course, parties may, in the language they employ to create an easement, prohibit any alteration in its dimensions, grade, or location, or provide explicitly that the easement is to remain in a fixed location or retain a fixed dimension. Thus, for instance, in Brookline v. Whidden, 229 Mass. 485, 489 (1918), land was conveyed to the town “with the benefit of and subject to such rights and easements as may now be in force respecting the laying out and use of a street fifty feet wide called Essex street along the easterly side of the granted premises.” The grantor gave the “fee of the streets and squares I have laid out and opened on my estate ... in trust that the same shall be kept open forever for ornament and use as streets and squares only and for the benefit of all residents . . . contiguous to said streets and squares.” Because the language contained the explicit requirements that the land “be kept open forever” and that its use be limited to “streets and squares only,” encroachments into the fifty-foot width of the street had to be removed, notwithstanding that the street was still fully passable. Id. at 491-492, 494.
Where the language of an easement requires that a way of a
Martin’s certificate of title, by contrast, does not contain any reference to the full width of the easement as drawn on the J-Plan, or any language restricting a change in its dimensions, prohibiting other uses, or requiring that the easement be kept open throughout its full extent. Rather, it references the deed reserving to lot 4A a “right of way in common with lot 3A . . . over rights of way ‘A,’ ‘B,’ ‘C’ and ‘E’ as shown on” the J-Plan. Indeed, as the judge noted, Martin’s certificate of title does not set forth an “exact location” of any of the easements at issue,
As they exist today, and given Martin’s current use of his property, the encroachments into Way A do not lessen its utility for passage by vehicles much larger than any in existence when the way was created, do not increase the burden on Martin in his use of the way, and do not frustrate the purpose of travel to Martin’s lot. See Restatement, supra at § 4.8(3). Thus, we affirm the judgment of the Land Court that the encroachments by Simmons, and by its predecessors in interest at some point no later than 1987, do not interfere with Martin’s easement rights to passage over Way A, and that Simmons is not liable for removal of any of the obstructions. As the judge noted, however, this matter may be revisited should Martin redevelop lot 3A in such a manner that these obstructions impede upon his use of the easement for its intended purpose.
d. “Unhatched area. ”
The judge found, as Martin conceded at trial, that the Textile Realty Company, the then owners of lots 3A and 4A, drafted the J-Plan deliberately, intentionally omitting the hatched area that had appeared on the I-Plan, that its omission was not as a result of carelessness in drafting; and that Martin had presented no evidence of the intent of his predecessors in interest to obtain an easement over the unhatched area. In considering the evidence of intent or mistake, the judge observed that, in addition to Way A, lots 3A and 4A are benefited by an interlocking system of easements; Martin’s parcel is and was accessible over Ways A, C, D, and E; and access to lot 3A over Way A was not so
The doctrine of mistake requires a mutual mistake. McGovern v. McGovern, 77 Mass. App. Ct. 688, 699 (2010). Even had Martin’s predecessors in interest intended to accept a larger easement than shown on the J-Plan, there was, at most, a mistake by one party. We discern no error in the judge’s conclusion that Martin has not established any easement rights over the unhatched area.
e. Simmons’s rights to use Way E.
We discern no error in the judge’s conclusion that Simmons’s easement for access over Way E exists, in dimension and location, as indicated on the J-Plan. Although a raised wooden platform previously connected Way E and Way A, the purpose of travel over Way E has not been frustrated. Not only is travel on the ground at the current location of Way E feasible, the judge noted that, since the buildings formerly connected by the raised platform no longer exist, the easement holder may well prefer to travel at ground level. Moreover, the language of the easement itself clearly contemplates a way separate and distinct
f. Fill. Martin claims here, as he did below, that Simmons placed fill on Way A, Way E, and lot 3A, elevating its grade from what had been “essentially flat.” He maintains that the fill reduced the amount of land on lot 3A available for construction and parking, because a ramp would be needed to connect lot 3A to Way A, and that the location of any future building on lot 3A would necessarily be much higher than what had been the “dock height” of the first floor of the former structure, such that loading and unloading of materials on the first floor of any new building would not be feasible.
The owner of a servient estate over which an easement for passage mns may not make “any change in its grade or surface, which makes the way less convenient and useful to any appreciable extent to any one who has an equal right in the way.” Killion v. Kelley, 120 Mass. 47, 52 (1876). See Crowley v. J.C. Ryan Constr., Inc., 356 Mass. 31, 35 (1969); New York Cent. R.R. v. Ayer, 242 Mass. 69, 76 (1922).
In addition to his own testimony concerning the fill, Martin introduced photographs of the fill, taken in 1993.
The judge’s findings as to the ability to travel on Way A given
g. Storm drains and sewer, sprinkler, and water pipes.
As the Appeals Court determined, however, the claims relate to encumbrances on real property, and should not have been considered under a tort statute of limitations.
As to the storm drains, the language of the easement states that lot 3A enjoys a right, together with other parcels, to “discharge water into the [two drain lines]” that lead in part across lot 4A toward the Mystic River Reservation, “portions of [which] are shown on said Plans.” Simmons concedes that the eighteen and twenty-four inch storm drains, indicated by circles on the J-Plan, were covered with asphalt in 1993. At that time, Simmons installed three other storm drains elsewhere on its parcels. Clarke, the chief executive officer of Cummings Properties, testified at trial, and the judge credited, that there have been no complaints of inadequate drainage from any of the tenants at 196 or 200 Boston Avenue, and Martin introduced no evidence that lot 3A had suffered from drainage problems.
The judge determined that no evidence was introduced that the relocated drains on lot 4A and lots 10 and 12 are inadequate to handle runoff on those parcels as well as on lot 3A, and, further, that no evidence suggested the existing drains would be inadequate to handle runoff from any foreseeable building that might be constructed on lot 3A; thus, Martin had not met his burden of proof to establish interference with his easement rights. There was no error in the judge’s conclusion that Martin had not established any interference with his right to discharge water into the storm drains, and therefore that the drains need not be restored to their 1940 configuration.
According to their transfer certificates of title, the owners of lots 3A and 4A have the right “to maintain and use the four-inch (4") and six-inch (6") sewer pipes leading southwesterly across lots 4A and 7 on [the J-Plan] to Boston Avenue, a portion of which sewers is shown on said Plan.” Martin’s certificate of title provides also that he may use a six-inch sprinkler pipe and a one and one-half inch water pipe that were in existence at the time the easement was created.
Martin maintains that the connection from the building that stood at the northeast corner of the current building at 200 Boston Avenue to the location of his burned building on lot 3A must have been blocked or destroyed when Simmons demolished its building. As the judge found, however, Martin introduced no evidence, other than his “commonsense” belief, that the four-inch sewer pipe
Simmons states that it does not dispute Martin’s right to access water or other utilities over pipes installed at any point within the easement area shown on the J-Plan, so long as it is done at Martin’s expense. See Shapiro v. Burton, 23 Mass. App. Ct. 327, 333 (1987) (“duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement”). Moreover, Martin’s certificate of title states explicitly that the pipes are to be maintained, and the water to be metered, at his expense.
Judgment affirmed.
We acknowledge the amicus brief of the New England Legal Foundation and NAIOP Massachusetts in support of Simmons Properties, LLC (Simmons), and the amicus brief of the Real Estate Bar for Massachusetts and The Abstract Club.
The “J-Plan” shows the separate parcels created along a one-block length of Boston Avenue after the division of a larger property that had been held by the Textile Realty Company. The J-Plan was approved by the Land Court in December, 1940, after the August, 1940, conveyance of lot 3A from the Textile Realty Company to Peter Boscho, a predecessor in interest to Clifford J. Martin, and of lots 4A, 10, and 12 to the Russell Box Company, a predecessor in interest to Simmons. As at issue here, the J-Plan denotes five rights of way, desig
In 1991, lots 10 and 12 were merged and are now known as lot 20. As do the parties, we refer to them by the earlier designations shown on the J-Plan.
The elevator shaft is indicated on the J-Plan, and protrudes into Way A on that plan.
The “unhatched area” is bordered by Way E to the north, by the building at 200 Boston Avenue to the south, by land of the Boston and Maine Railroad to the east, and by Way A to the west.
At a pretrial conference in May, 2009, Martin’s motion voluntarily to dismiss his claim concerning easement rights in a six-inch sewer pipe that had serviced the former building on lot 3A was allowed, and that claim was dismissed.
The judge credited Benevento’s testimony that a travel lane of a city street averages ten to twelve feet in width, and that a travel lane on the Massachusetts Turnpike is eleven to twelve feet wide.
The judge found also that the fill on the area south of Way E was entirely on Simmons’s property, and formed no part of Way E, and that the claims for trespass on lot 3A by placement of fill there were time barred.
Although the width of Way A as indicated by hatching on the J-Plan varies along its length, for the most part it is fifty feet wide.
“No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land.” G. L. c. 185, § 53.
Martin, acting pro se, pursued this claim in the Land Court and the Appeals Court. After the Appeals Court affirmed most of the Land Court judge’s decision, but reversed as to Martin’s rights to Way A, Simmons sought further appellate review; that petition was allowed without limitation. Although Martin did not address this claim explicitly in his brief to this court, he discussed issues of parking and turning trucks around on land that appears to encompass Way E and the “unhatched area.” Similarly, although Martin stated at oral argument that he was not pursuing any claims concerning the “unhatched area,” both before and after that statement, he raised the same arguments as he did in the Land Court and the Appeals Court concerning parking of vehicles on Way E,
The 1939 I-Plan was drafted by the Textile Realty Company before it drafted the 1940 “J-Plan Linen” that formed the basis for the J-Plan ultimately approved by the Land Court.
See note 11, supra.
Martin’s brother, who took the photographs, did not testify, and Martin was not present when the photographs were taken.
See note 11, supra.
Since lot 3A is registered land, Martin’s easement rights cannot be extinguished through nonuse, G. L. c. 185, § 53, and his claims are not time barred. See Cater v. Bednarek, 462 Mass. 523, 528-529 & n.15, 533 (2012) (no abandonment and no extinguishment by estoppel where owner of easement for travel made no attempt to use easement for ninety-eight years and houses were constructed on servient estates in interim).
The owner of lot 3A also enjoys the right “to lay and maintain water, sprinkler, gas and sewer lines and electric lines or conduits in any of the rights of way shown on” the J-Plan. Martin concedes that he has made no attempt to
As stated, see note 6, supra, the judge allowed Martin’s motion to dismiss his claim concerning the use of the six-inch sewer pipe.
As set forth in his certificate of title, Martin enjoys an easement “to draw water through the existing water pipes serving the buildings upon said lot 3A where they cross the premises above described [lot 4A], provided that the owner of said lot 3A shall pay the cost of said water and the cost of properly metering the same.”