Cannata v. Berkshire Natural Resources

• Decision Date: 09 March 2009
• Docket Number: No. 07-P-992.,07-P-992.
• Citation: 73 Mass. App. Ct. 789,901 N.E.2d 1250
• Parties: Richard CANNATA & others<SMALL><SUP>1</SUP></SMALL> v. BERKSHIRE NATURAL RESOURCES COUNCIL, INC., & others.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

901 N.E.2d 1250

73 Mass. App. Ct. 789

Richard CANNATA & others¹ v. BERKSHIRE NATURAL RESOURCES COUNCIL, INC., & others.²

No. 07-P-992.

Appeals Court of Massachusetts, Berkshire.

Argued September 4, 2008.

Decided March 9, 2009.

Peter J. Brewer, Great Barrington, for the plaintiffs.

David E. Valicenti, Pittsfield, for Berkshire Natural Resources Council, Inc.

Karen M. Thursby, Boston, for Reed Rubin & others.

Present: DUFFLY, KATZMANN, & VUONO, JJ.

DUFFLY, J.

The owners of eight developed lots in a subdivision in the town of Alford brought this action against Berkshire Natural Resources Council, Inc. (Berkshire), a charitable corporation dedicated to the preservation of outdoor space. Berkshire owns a large undeveloped parcel consisting of about 800 acres (locus) abutting the subdivision, access to which is over the ways of the subdivision. The plaintiffs and Berkshire have easements over the ways; the defendant Reed Rubin holds the fee in the ways; the Rubin defendants, see note 2, supra, own undeveloped lots in the subdivision. Learning of Berkshire's plans to open the locus to the public for recreational purposes, the plaintiffs sought a declaration that Berkshire has no right to invite the general public to access its property by use of two of the ways, and that a "Declaration of Restrictive Covenants" (Declaration) recorded in connection with the subdivision plan has expired and a purported amendment thereto (Amendment) is invalid.³ Berkshire filed a counterclaim seeking a declaratory judgment that Berkshire has the right to invite the general public across the ways, that the Declaration has not expired, and that the Amendment thereto is valid; it also sought dismissal of the plaintiffs' amended complaint.

Acting on cross motions for summary judgment, a Superior Court judge granted the defendants' motion and entered a judgment declaring that Berkshire has the right to invite the public to use the subdivision ways to access the locus. The plaintiffs' claims were dismissed.⁴ The parties' joint motion for entry of final judgment was thereafter granted.⁵

In their appeal from that judgment, the plaintiffs argue in essence that the ways are (and were designed) for residential use and that references to the public in the various easement grants are intended only to reflect that members of the public may use the ways to visit the residents of the subdivision. They further claim that permitting the general public to use the subdivision ways to access the locus will "overburden" their easement rights by creating additional traffic and by increasing the plaintiffs' maintenance costs and exposing them to unforeseen liability. Upon our independent review of the appropriate summary judgment materials, we affirm the judgment declaring that Berkshire has the right to invite the public to use the subdivision ways to access the locus and dismissing the plaintiffs' claims for nuisance and trespass. We remand for such additional proceedings as may be necessary to permit the judge to declare any remaining rights of the parties.

Discussion. 1. Berkshire's motion for summary judgment. "Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as matter of law." Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass.App.Ct. 396, 398, 892 N.E.2d 759 (2008). "A motion for summary judgment is properly granted `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with [supporting] affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" MacLean v. Delinsky, 407 Mass. 869, 874, 556 N.E.2d 60 (1990), quoting from Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). "While a judge should view the evidence `with an indulgence in the [opposing party's] favor,' Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 822, 489 N.E.2d 172 (1986), quoting National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 221, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980), the opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." La-Londe v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 554, 340 N.E.2d 877 (1976). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Cullen Enterprises, Inc. v. Mass. Property Ins. Underwriting Assn., 399 Mass. 886, 890, 507 N.E.2d 717 (1987), quoting from Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985).

We note at the outset that neither the amended complaint nor the counterclaim is verified. "Only if the plaintiff files a verified complaint is the complaint treated as an affidavit for purposes of [Mass. R.Civ.P. 56(e), 365 Mass. 825 (1974)]." Harrison v. Boston Financial Data Servs., Inc., 37 Mass.App.Ct. 133, 136 n. 9, 638 N.E.2d 41 (1994), quoting from Godbout v. Cousens, 396 Mass. 254, 262, 485 N.E.2d 940 (1985). See Fortenbacher v. Commonwealth, 72 Mass.App.Ct. 82, 88, 888 N.E.2d 377 (2008), quoting from rule 56(e) ("affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and ... [s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith").⁶ The parties, and motion judge, rely on documents referred to in the amended complaint and the parties' memorandum.⁷ We thus summarize the undisputed material facts, gleaned from the documents relied on by the parties, see J.F. v. J.F., 72 Mass.App.Ct. 782, 790 n. 12, 894 N.E.2d 617 (2008), concessions made by them on the record, see White v. Peabody Constr. Co., 386 Mass. 121, 126, 434 N.E.2d 1015 (1982) (admissions made by counsel during oral argument on motion may also be considered), and appropriate summary judgment materials, in the light most favorable to the plaintiffs.

Prior to 1970, Berkshire Mountain Corporation (Mountain) was the owner of a large tract of undeveloped land in Alford. In 1970, Mountain established the residential subdivision, called Berkshire Village, by subdivision plan recorded with the Southern Berkshire registry of deeds, from which the plaintiffs derive their lots.⁸ Each of the plaintiffs' deeds contains a reference to the Declaration, a document dated December 14, 1970, and fully captioned as "Declaration of Restrictive Covenants for Berkshire Village—Section A; The Berkshire Mountain Corporation, Alford, Massachusetts," that was recorded with the registry of deeds along with the subdivision plan.

The subdivision consists of thirty-six residential lots and three ways. Access to the plaintiffs' lots is by means of an easement over two of the ways, Mountain Road and Old Village Road. The easement grant "of ingress to and of egress from any such lot, over and along the roads now existing or which may be constructed hereafter by Mountain or its successors" is "subject to the rights of Mountain, and all others to whom such rights have been or may be given and of the public."⁹

Mountain retained title to the fee interest in the ways and the approximately 800-acre parcel of land adjacent to the subdivision. The defendant Reed Rubin is the successor in title to Mountain with respect to the ways and the retained land.¹⁰ In 2002 Reed Rubin sold the locus to Berkshire, together with an easement over the ways of the subdivision for access to the locus. The deed from Reed Rubin to Berkshire grants to Berkshire,

"its successors and assigns, and its and their agents employees and invitees, including the public a non-exclusive, perpetual right[ ] of way for all the usual purposes of a right of way over, under and upon said Mt. Road, said Old Village Road and a parcel of land conveyed to the grantor herein by deed of Green River Lumber, Inc .... which shall be appurtenant to the land conveyed by this deed and shall run with the land."

2. Scope of parties' easements. The plaintiffs claim that references to "the public" contained in the easement grants to them do not permit Berkshire to invite the general public onto the ways in order reach the locus. They argue that language in the Declaration stating that the "covenants, conditions, restrictions and reservations are imposed ... to promote orderly development of Berkshire Village ... as a residential development," supports their claim that the ways may only be used for residential purposes.¹¹

There is no provision in the Declaration or in any other document in the summary judgment record that specifically restricts the easements over the ways to use by residents of the subdivision and their invitees. It is well established that an "easement is not to be limited to such use as seemed likely to be made about the time of the conveyances which created it. In the absence of express limitations, ... a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant." Tehan v. Security Natl. Bank of Springfield, 340 Mass. 176, 182, 163 N.E.2d 646 (1959).

"The extent of an easement depends on the circumstances of its creation .... 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.'" Lowell v. Piper, 31 Mass.App.Ct. 225, 230, 575 N.E.2d 1159 (1991), quoting from Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App.Ct. 443, 444, 552 N.E.2d 121 (1990). A reviewing court must "construe the scope of an easement from the parties' intent ... ascertain[ed] from the relevant instruments and the objective circumstances to which they refer."...