Boudreau v. Coleman

• Decision Date: 19 December 1990
• Docket Number: No. 89-P-873,89-P-873
• Citation: 564 N.E.2d 1,29 Mass.App.Ct. 621
• Parties: Faith BOUDREAU, et al. 1 v. Martin J. COLEMAN, Jr., et al. 2
• Court: Appeals Court of Massachusetts

Page 1

564 N.E.2d 1

29 Mass.App.Ct. 621

Faith BOUDREAU, et al. ¹ v. Martin J. COLEMAN, Jr., et al. ²

No. 89-P-873.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 17, 1990.

Decided Dec. 19, 1990.

Brian M. Hurley (Mary B. Freeley, Boston, with him) for defendants

John J. Willis, Jr. (John J. Willis, Sr., North Andover, with him) for plaintiffs.

Before SMITH, FINE and IRELAND, JJ.

FINE, Justice.

The defendants own a 25.5 acre parcel (the locus) in Waltham. They would like to develop it in accordance with a subdivision plan showing forty-one house lots. According to the proposed plan, the only access from the proposed subdivision to Lexington Street, a public way, would be over Chesterbrook Road and Stanley Road, private ways perpendicular to each other. The plaintiffs, owners of property abutting those ways, sought in the Land Court a declaration that the defendants have no easement, by express reservation or by implication, to pass from the proposed subdivision over Chesterbrook Road and Stanley Road to Lexington Street.

The parties entered into an extensive joint stipulation of facts, with 68 deeds, plans, and taking orders, appended as exhibits. Several additional documents and chalks were considered at trial, and the judge took a view of the site. In his decision, the judge ruled that it was not the presumed intent of the original grantors and grantees, when common ownership of the locus and the land along Lexington Street was first severed, to reserve an easement such as the defendants now claim. He ruled, further, that the defendants' ownership of the locus, a portion of which consists of certain "reserve" lots abutting Chesterbrook Road, gave the defendants the right to use the ways to pass to and from the "reserve" lots but not the right to pass from the proposed subdivision over Chesterbrook and Stanley Roads to Lexington Street, because such use would overburden the plaintiffs' easement in those ways. ³ We substantially affirm the Land Court judgment in favor of the plaintiffs.

We summarize the facts insofar as they are essential to an understanding of the issues on appeal. ⁴ The relevant history Paine's five children, as his heirs at law, drew up and recorded three subdivision plans relating to approximately one-fourth of the thirty-eight acre parcel. (See 1912 plan and composite sketch depicting the lots developed in accordance with the three plans and their relationship to the locus.) [See Appendix.]

                of the land at issue begins in 1891 when Robert Treat Paine acquired a parcel of undeveloped land consisting of approximately thirty-eight acres abutting the easterly side of Lexington Street in Waltham. 5  The land remained undeveloped until after Paine's death in 1910
                

The first plan, dated November, 1911 (the 1911 plan), shows two roads providing access within the subdivision and to Lexington Street: Stanley Road, running east-west from, and perpendicular to, Lexington Street, and Chesterbrook Road, running north and south of the end of Stanley Road. From their creation in 1911, the streets have remained private ways. The 1911 plan also delineated sixty-one numbered lots, abutting all the parcel's frontage along Lexington Street, as well as all the frontage along the western edge of Chesterbrook Road north of Stanley Road, and one unnumbered lot which abutted the southeastern end of Chesterbrook Road.

The Paine heirs deeded five parcels, consisting of a total of twenty-six lots, with reference to the 1911 plan. Two of the deeds expressly reserved the grantor's right to "construct and maintain" Stanley Road, including the construction of a bridge or culvert over a brook which runs between and parallel to Lexington Street and Chesterbrook Road. Four of the five parcels were described in their respective deeds as being bounded "by the line" of Chesterbrook or Stanley Roads, the fifth having frontage only on Lexington Street. Finally, all five deeds contained both an express reservation of the right to "use and improve" a twenty-four foot strip of land bordering the brook, and common scheme restrictions relating to the construction of houses on the lots.

The second subdivision plan, dated May, 1912 (the 1912 plan), divided into lots all the remaining frontage along Chesterbrook and Stanley Roads. Those ways remained exactly as depicted on the 1911 plan. Most of the additional lots were numbered, but several were marked only with the word "reserve," which was subsequently crossed out. ⁶ One such "reserve" area, consisting of two lots, is at the eastern terminus of Stanley Road; the other, also consisting of two lots, is at the northern end of Chesterbrook Road, abutting its eastern sideline. The former was conveyed in 1919 together with several numbered lots. The latter was retained by the Paine heirs, along with the rest of the locus, and is now owned by the defendants. The plan also shows what is apparently undeveloped and undivided land, with no indication of its ownership, at both ends of Chesterbrook Road and continuing along the entire eastern boundary of the subdivision. This is the western end of the locus.

All the lots depicted on the 1912 plan, except those previously conveyed and except two of the "reserve" lots, were deeded out with reference to that plan. The deeds for those lots abutting one of the ways described the lots as bounded "on" or "by" the way. All the deeds contain the same restrictions concerning house construction which appeared in the deeds making reference to the 1911 plan, and all the deeds for parcels abutting the brook contain the reservation by the grantor of rights to use and improve it. The 1913 deed of one parcel The third subdivision plan filed by the Paine heirs, dated June, 1922 (the 1922 plan), shows the creation of four additional lots and an extension of Chesterbrook Road at its southern end into what appeared as undivided land on the 1912 plan. This extension of Chesterbrook Road is drawn beyond the boundaries of the new lots into undeveloped land then owned by the Paine heirs and now owned by the defendants as part of the locus. Between 1921 and 1923, the four lots were conveyed as three parcels. The deed for the first, dated before the filing of the 1922 plan and making no reference to that plan, grants a right of way over both Chesterbrook Road and "an extension thereof." The deeds for the other two parcels bounded by the extension of Chesterbrook Road refer to the 1922 plan and do not mention such a right of way.

(including lots 62 and 63 on the 1912 plan), abutting the northeastern side of Chesterbrook Road and next to the "reserve" lots, reserved for the grantors, their heirs and assignees, for a period of thirty years, the right to construct and maintain a road over a small triangular section of that parcel. None of the deeds which refer to the 1912 plan contains any other restrictions or reservations.

The Paine heirs also extended Chesterbrook Road slightly beyond the northern terminus depicted on the 1912 plan. In 1928, the remaining Paine children, together with the heirs of Edith Storer, ⁷ granted one Lucy Alcock a right of way over a parcel of land at the northerly end of Chesterbrook Road "to be used as an extension of said Chesterbrook Road," along with an easement over Chesterbrook and Stanley Roads, all to be appurtenant to a parcel she purchased from one Lewis Hardy on the same day.

In 1921, the Paine heirs granted the city of Waltham an easement to lay and maintain drains and sewers in and through Chesterbrook and Stanley Roads. At that time, they still owned most of the lots abutting Chesterbrook Road, and Edith Storer owned frontage on Stanley Road.

The locus came into the ownership of the defendants through several intermediate conveyances. In 1939, the Paine heirs, together with the remaining heirs of Edith Storer, conveyed a large parcel containing the locus to William Stober, who conveyed it in 1957 to Theodore Storer. In 1965, Theodore Storer conveyed that portion of the parcel which now comprises the locus to the defendants, expressly reserving an easement over the locus to Chesterbrook and Stanley Roads on ways, if any, that the defendants would construct.

The plaintiffs, owners of property shown on the three plans, are successors in interest to the original grantees from the Paine heirs.

1. Easement by implication. The deeds to the plaintiffs' predecessors in interest did not expressly reserve a right of way over Chesterbrook and Stanley Roads to benefit the locus. In the absence of such express reservation, the conveyance of land with reference to a plan creates such an easement, other than by necessity, "only if clearly so intended by the parties to the deed." Scagel v. Jones, 355 Mass. 208, 211, 243 N.E.2d 908 (1969), quoting from Rahilly v. Addison, 350 Mass. 660, 662, 216 N.E.2d 414 (1966). The focus of our attention in determining whether the defendants have a reserved easement by implication for passage from the locus over Chesterbrook Road and Stanley Road must be on the intent of the Paine heirs and their grantees at the time common ownership was first severed. See Krinsky v. Hoffman, 326 Mass. 683, 687, 95 N.E.2d 172 (1951); Murphy v. Donovan, 4 Mass.App.Ct. 519, 526, 352 N.E.2d 210 (1976). The relevant point in time, therefore, is no later than the dates on which the Paine heirs conveyed lots in accordance with the 1911 and 1912 plans.

Whether at that time the Paine heirs reserved an easement for passage over the ways shown on the plans depends upon "a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the Neither the relevant instruments nor the attendant circumstances clearly indicate an intention on the part of the parties to the original conveyances to create an unlimited easement for the benefit of the grantors. The grantors were willing to part with their fee interest in the ways. A few of the first parcels to be...