Air Plum Island v. Society for Preservation

• Decision Date: 26 September 2007
• Docket Number: No. 06-P-736.,06-P-736.
• Citation: 70 Mass. App. Ct. 246,873 N.E.2d 1159
• Parties: AIR PLUM ISLAND, INC. v. SOCIETY FOR the PRESERVATION OF NEW ENGLAND ANTIQUITIES.
• Court: Appeals Court of Massachusetts

873 N.E.2d 1159

70 Mass. App. Ct. 246

AIR PLUM ISLAND, INC. v. SOCIETY FOR the PRESERVATION OF NEW ENGLAND ANTIQUITIES.

No. 06-P-736.

Appeals Court of Massachusetts, Essex.

Argued February 15, 2007.

Decided September 26, 2007.

William H. Sheehan, III, for the plaintiff.

Alan E. Lipkind, Boston (Diane A.D. Noel with him) for the defendant.

Present: CYPHER, GREEN, & SIKORA, JJ.

SIKORA, J.

This appeal presents a question of adverse possession. The land in dispute is a 9.1-acre parcel (the runway parcel) containing the major segment of the runway of the Plum Island Airport (airport). The plaintiff, Air Plum Island, Inc. (API), operated the private airport from 1966 through 2000. The defendant Society for the Preservation of New England Antiquities (SPNEA) has been the record owner of the disputed parcel since 1971.¹ In 2000, API began this action in the Superior Court seeking a declaration of its ownership of the runway parcel by reason of adverse possession. SPNEA answered that API's use of the runway parcel had been not adverse, but rather permissive under a commercial lease. After completion of discovery, each side moved for summary judgment. By a memorandum of decision, a judge of the Superior Court allowed SPNEA's motion and denied API's. API has appealed.

Factual background. The following undisputed facts emerge from the summary judgment record. Since approximately 1966, the airport has operated upon a tract of about forty-one acres. The tract stretches from Newbury at its east end into Newburyport at its west end. Along its entire northern edge it abuts the Plum Island Turnpike. The airport tract lies within a larger area of about 270 acres known as Little's Farm. As of 1966, sisters Agnes and Amelia Little held title to all but 6.5 acres at the eastern end of the airport tract. Those belonged to Warren Frothingham, the proprietor of the airport. In order to conduct the business, Frothingham leased the adjoining westerly acreage from the Little sisters.

In 1966, Richard Hordon and two associates formed API and purchased the buildings, the equipment, the 6.5 acres, and the remaining assets of the airport business from Frothingham. At that time the airport tract included one east-to-west paved runway, of which 500 feet were located on the 6.5-acre Frothingham parcel and another 1,250 feet on the adjoining land to the west, the centrally located runway parcel. Farther west the airport contained a grass runway, a series of hangars, and a restaurant (the airport parcel). API proposed to succeed Frothingham as a tenant upon the runway parcel and airport parcel. For the four-year period of 1966 to 1970, API and the Little sisters executed one or two short-term leases for that purpose. During this interim API extended the paved runway westward into the airport parcel by 750 feet.

On December 8, 1970, API and the Little sisters executed a long-term lease. It provided API with a tenancy of twenty years as of January 1, 1971, and with rights of renewal for two successive five-year periods thereafter. It set minimum annual rental figures for each five-year segment and called for a variable higher annual rent as a percentage of the airport's sales of fuel and oil and of its gross receipts for each year. It authorized API to erect upon "the demised premises" buildings (not to exceed two stories) necessary or convenient for the conduct of a private airport, and to grade, drain, and surface any portion of the "demised premises as may be necessary for runways, taxi strips, parking areas, and the like." It required API to "bear and promptly pay any real estate taxes or betterment or other assessments or charges whatsoever on the demised premises."

The introductory language of the lease identified the "demised premises" as a "certain parcel of land in Newbury . . . more particularly described in a plan [attached] as Appendix A" to the lease. A copy of appendix A appears as an Appendix to this decision. Appendix A appeared on the stationery of API's legal counsel, the firm of Beit & Wells. API had presented it for inclusion in the earlier one or two leases covering the period of 1966 to 1970.² Appendix A to the 1970 lease consisted of a sketch of the "leased premises" enclosed by hyphenated or dotted boundaries of measured lengths and containing a rectangular building; a designation of the Plum Island Turnpike; the specification of a landmark stone (point A) on the turnpike as the border of Newbury and Newburyport; two points marked B and C located, respectively, on the east and west bounds of the "leased premises"; and a northward directional axis. Immediately to the right of the eastern boundary of the "leased premises" is the phrase "Land of Air Plum Island, Inc." The sketch made no explicit reference to the discrete area of the runway parcel.

Above the sketch is the date of the execution of the long-term lease. Below it are the following four "Notes."

"1. Scale, bearings, and distance are approximate.

"2. Size and location of building approximate.

"3. Point "A" on the above sketch is a stone bound on the Plum Island Turnpike demarcating the Newburyport-Newbury line.

"4. The sketch may not reflect precisely the location of those boundaries indicated by dotted lines. However, the demise includes that land of the Lessors lying southerly of points marked B and C on said plan, which is necessary or convenient for runways, taxiways, approach zones, and other related purposes, whether the same lie within or without the dotted boundaries."

On March 29, 1971, API filed a notice of lease in the Essex South registry of deeds. Without a sketch it described the boundaries of the leased premises as an enclosure starting and ending at the turnpike border stone.³ The notice included a qualification similar to note 4 on appendix A that the leased premises included land "southerly of described premises as may be necessary or convenient for runways, taxiways, approach zones, and other related purposes." Also the fourth clause of the description in the notice of lease specified that the eastern boundary of the leased premises runs for 1,110 feet northwesterly to point B, or in effect 1,110 feet southeasterly from point B.⁴

In 1971, the Little sisters conveyed the entire 270-acre farm tract to SPNEA. They reserved a life estate. The last of the sisters died in 1986.

Hordon purchased the interest of one API associate in 1972 and of the other in 1976. On each occasion the departing associate conveyed his interest in the Frothingham parcel to Hordon. Hordon, in turn, conveyed the Frothingham parcel to a realty trust controlled by his wife. As trustee she conveyed it to a second trust also controlled by her.

The airport tenancy proceeded from 1971 onward in general harmony. In 1973, API purchased a hangar and assembled it on the runway parcel without consultation with the Little sisters or SPNEA. In 1988, API erected another hangar on the airport parcel. The blizzard of 1978 resulted in substantial damage to the entire runway. To repave it, API procured a loan from the Small Business Administration secured by a mortgage upon the Frothingham parcel. Throughout the term of the lease API paid the real estate taxes upon all the land comprising the runway parcel and the airport parcel. In 1984 and 1985, SPNEA and Amelia Little applied to the town of Newbury for reclassification of the airport property bordering the Plum Island Turnpike as recreational land entitled to more favorable tax treatment. The applications required the verifying signature of any lessee engaged in the use of the land. On both occasions Hordon endorsed the application for API as the lessee. The disputed runway parcel lies entirely within the reclassified land.

During the period of 1993 to 1998, SPNEA sought to qualify a portion of the Little farmland for an agricultural preservation restriction and to sell the restricted land to the Commonwealth. For that purpose it commissioned a survey of the entire property including the airport tract. The survey established definitively that record ownership of the airport land was as follows: the eastern-end 6.5-acre Frothingham parcel was vested in the realty trust controlled by Hordon's wife; the 9.1-acre runway parcel was vested in SPNEA; and the 24.7-acre westernmost airport parcel, enclosed by the lease sketch boundaries, was vested in SPNEA. A second survey in 1999 confirmed this delineation.

The relationship between API and SPNEA deteriorated during 1998 and 1999. For some years API had rented space on the airport grounds to crafts and cultural fairs. Heavy crowds at a crafts fair over the Labor Day weekend of 1998 had disrupted traffic access to nearby beaches and alienated residents and officials of both Newbury and Newburyport. In 1999 those municipalities sued the proprietors of the fairs and API, in an effort to enjoin further fairs. Tension arose between API and SPNEA. On September 15, 1999, the trustees of SPNEA voted not to renew API's lease upon its expiration on December 31, 2000. Attempts at reconciliation failed. In early October of 2000, SPNEA issued a request for proposals from prospective lessees of the thirty-four acres comprising the airport and runway parcels.

API promptly filed suit upon the claim that it had acquired ownership of the runway parcel by adverse possession.⁵ It contended that the designation of the area comprising the runway parcel as "Land of Air Plum Island, Inc." in the lease sketch and its use of that area through the ensuing thirty years satisfied the requirements of that doctrine. SPNEA responded that the lease included the runway parcel as a permitted use and precluded any claim of adverse occupancy.

Discussion. 1. Standard of review. With the same record as the motion judge, the reviewing court examines the allowance of summary judgment de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1, 686 N.E.2d 1303 (1997). We consider the record in...