Deery v. Foster

• Decision Date: 31 March 1983
• Citation: 15 Mass.App.Ct. 564,447 N.E.2d 1251
• Parties: John A. DEERY et al. 1 v. David V. FOSTER et al. 2 (and three companion cases 3 ).
• Court: Appeals Court of Massachusetts

Page 1251

447 N.E.2d 1251

15 Mass.App.Ct. 564

John A. DEERY et al. ¹

v.

David V. FOSTER et al. ² (and three companion cases ³).

Appeals Court of Massachusetts, Essex and Suffolk.

Argued Nov. 5, 1982.

Decided March 31, 1983.

John T. Ronan, Boston, for John A. Deery & others.

Gary S. Matsko, Boston (Julian J. D'Agostine, Boston, with him), for David V. Foster & another.

Before HALE, C.J., and GRANT and SMITH, JJ.

SMITH, Judge.

The parties to these actions own land adjacent to Harbor Avenue, a public way in Marblehead, and all depend upon passage over a private road, Sean's Way, to gain access to their land from Harbor Avenue. A decision by David V. Foster and his wife to construct a single-family house on their property caused the plaintiffs, John A. Deery, a lawyer specializing in real estate, and his wife to commence three separate actions in the Superior Court and one action in the Land Court seeking to prevent the construction undertaken by the Fosters. ⁴ Their attempts failed, and these appeals have resulted. In this opinion, we affirm the decision of the Land Court judge. At argument, both counsel agreed that if that decision is affirmed the judgments in the Superior Court should also be affirmed. ⁵

The controversy swirls around the extent to which the Fosters may make use of Sean's Way to gain access to their land. In order to understand the issues raised by the parties, we summarize relevant portions of the findings of the Land Court judge. In 1959, the Deerys owned three tracts of registered land, bounded on one side by Harbor Avenue, in Marblehead. They combined the tracts and subdivided the resulting acreage into five parcels (lots 11-15, inclusive), and lot 15A on the accompanying sketch. The subdivision plan, which included a private road (Sean's Way) providing access to the interior lots, was approved under the Subdivision Control Law in July, 1960. ⁶ As shown on the accompanying sketch, Sean's Way was laid out and constructed along one side of the subdivision and abutted unregistered land owned by Barbara A. White (White), the Fosters' predecessor in title.

In 1961, Deery and White agreed to exchange some land. By deed dated January 5, 1961, but not registered by White until June 9, 1964, Deery conveyed lot 15A to White. In exchange, White conveyed to Deery lot 15B, title to which is unregistered, by deed dated May 15, 1964, and recorded on June 9, 1964. ⁷ The deed that conveyed lot 15A to White expressly conveyed an easement to use Sean's Way "for the purpose of passing and repassing on foot and by vehicle to Harbor Avenue, all as appurtenant to all land now owned by the Grantee situated in said Marblehead " (emphasis supplied). At the time of the conveyance, White owned land extending from Harbor Avenue, along Sean's Way, to lot 15A. In May, 1980, White conveyed portions of this property (lots A and B and 15A on the accompanying sketch) to the Fosters.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After that conveyance, the Fosters started to construct a house on their property, some distance removed from lot 15A. In order to gain access to the building site, construction vehicles and the Fosters used Sean's Way. The Deerys sought an injunction barring the Fosters from using Sean's Way for the passage of construction vehicles. They also sought a declaration that the Fosters have a limited right to use Sean's Way for ingress to and egress from lot 15A only, and not to that portion of their property that abuts lot 15A. The Fosters sought a declaration that they have the right to use Sean's Way for access to all of their property and the right to tie into the utilities located in Sean's Way. G.L. c. 187, § 5, inserted by St.1980, c. 251. The judge, after hearing, entered a decision declaring that the Fosters were entitled to use Sean's Way for access not only to lot 15A but to all of their property. In addition, the judge ordered that the Fosters cannot tie into the existing pipes and conduits without the consent of the Deerys, except for water mains, but may install their own pipes, conduits and other appurtenances in Sean's Way.

On this appeal the plaintiffs contend that the easement granted to White is limited to lot 15A alone because, as a result of the delay by White in failing to register her deed until 1964, rights superior to her easement arose as a consequence of conveyances made by Deery between the time the White deed was signed and the time it was registered. In particular, the plaintiffs point to Deery's conveyance, in 1962, of lot 15, which subsequently became the property of the plaintiffs Riley. By their certificate of title, filed in 1962, the Rileys obtained "the right to use Sean's Way in common with others entitled thereto." The plaintiffs suggest that because the Rileys took title to lot 15 without record notice of the White easement, that easement must be given only limited effect to avoid a de facto encumbrance on the Rileys' easement over Sean's Way. ⁸

The plaintiffs' argument is flawed in several respects. As we have noted, the express terms of the easement granted by Deery to White conveyed the right to use Sean's Way, not only to gain access to lot 15A, but also to her adjoining property, which she eventually sold to the Fosters. ⁹ By law, that easement, possessed by White as owner of lot 15A and the adjoining tract, passed to the Fosters as purchasers of the White property. G.L. c. 183, § 15. Kenney v. Marino, 350 Mass. 534, 535, 215 N.E.2d 747 (1966). The plaintiffs do not cite any authority for their proposition that the Rileys, as grantees of an easement from Deery, were entitled to record notice of all those who held similar easements over the same way. It is well settled that Deery, as the grantor of the Rileys' easement, may continue to use Sean's Way for any purpose not inconsistent with the granted easement. Texon, Inc. v. Holyoke Mach. Co., 8 Mass.App. 363, 366, 394 N.E.2d 976 (1979). Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass.App. 815, 818, 398 N.E.2d 729 (1979). There is no basis for interpreting the Rileys' easement as exclusive. Indeed, the certificate explicitly stated that the easement was held in common with others entitled thereto. Compare Butler v. Haley Greystone Corp., 352 Mass. 252, 256-258, 224 N.E.2d 683 (1967). Thus, Deery, as owner of Sean's Way, was free to grant easements in addition to that held by the Rileys, so long as any subsequent easements were neither inconsistent with nor a burden upon the Rileys' easement. Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 578-579, 110 P.2d...