First Nat. Bank of Boston v. Konner

• Decision Date: 03 October 1977
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: The FIRST NATIONAL BANK OF BOSTON & another, executors, v. Carol A. KONNER. Supreme Judicial Court of Massachusetts, Barnstable

Page 1174

367 N.E.2d 1174

373 Mass. 463

The FIRST NATIONAL BANK OF BOSTON & another, executors, v. Carol A. KONNER.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued April 7, 1977.

Decided Oct. 3, 1977.

Richard W. Renehan, Boston (Dunbar Holmes, Boston, with him), for plaintiffs.

Richard M. Zinner, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

This is an action for declaratory relief under G.L. c. 231A which was entered in the Land Court by The First National Bank of Boston and Donald T. Devine, executors under the will of Frank F. Savage, against Carol A. Konner (Konner). ¹ The plaintiffs allege that the Savage estate and Konner own adjoining parcels of land in Mashpee, and that an actual controversy has arisen over the existence, nature and extent of the rights of Konner in the adjoining land of the Savage estate (Savage property). They ask for a determination of the rights of the parties in the matter in controversy.

After a trial, a judge of the Land Court, in a carefully prepared decision, concluded that Konner is the holder of a profit a prendre which gives her the perpetual right to take sand from the Savage property for the limited purpose of sanding a cranberry bog, that the profit a prendre is appurtenant to that portion of Konner's land shown as Parcel 3 on a plan dated July 2, 1968, and recorded in the Barnstable County registry of deeds in plan book 224 at page 47, ² and that the profit a prendre is not limited to any specific or defined portion of the thirty-three acres of the Savage property. He further concluded, contrary to the contentions of the plaintiffs, that the sanding rights had not been lost by abandonment or terminated under any other theory of extinguishment. Judgment was entered accordingly and the plaintiffs appealed.

Because this case presents novel questions concerning the extinction of a profit a prendre, we granted an application for direct appellate review. For reasons set forth below, we conclude that there was no error and affirm the judgment of the Land Court.

We summarize the pertinent facts as found by the judge of the Land Court. Such findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). The Savage estate includes a parcel of thirty-three acres of land in Mashpee. Konner's land adjoins that land and it consists of the following three parcels which are shown on the plan appended to this opinion: Parcel 1 consisting of 3.33 acres, Parcel 2 consisting of 0.78 acres, and Parcel 3 consisting of 17.19 acres. Parcel 3, to which the profit a prendre is appurtenant, is separated from the Savage property by Parcel 1.

The land involved in this controversy was formerly owned by Elijah W. Pocknett. In 1885, he conveyed Parcel 3 to Konner's predecessor in title, retaining Parcel 1 and the present Savage property. The deed to Parcel 3, which was described as "Cedar Swamp," granted "the privilege to take sand from my land adjoining to sand the swamp for a Cranberry Bog, and also the right to deposit on my land the stumps and other rubbish coming from the swamp and reserving to myself the Cedar which is to be deposited on my land. Also the right of the parties to a cartway from the town road to the Westerly end of the . . . swamp over my land. Also the right of the parties to take sand from my land adjoining to construct a dyke."

Title to Parcel 1 was conveyed to Konner's immediate predecessors in title by Savage in 1968. Konner acquired both Parcel 1 and Parcel 3 in 1971. Her deed to the latter parcel, like the deeds to several of her predecessors in title, refers to the sanding rights in language the same or similar to that used in the 1885 deed.

It appears, both from the language of the Pocknett deed and from statements in the briefs of the parties, that Parcel 3 was virgin swampland when the sanding rights were created. At some undetermined time thereafter, a portion of the land was converted to a bog and used for the cultivation of cranberries; however, it has not been used for that purpose since approximately 1944. At present it is not suitable for growing cranberries. The land is overgrown with bushes, the floodwall or dike is in a state of disrepair, and there are no working floodgates or flumes. Saltwater from Ockway Bay flows onto the property, and the topsoil is contaminated with salt.

Although the cost would be considerable, a bog could be reestablished on Parcel 3. In order to reclaim the bog, it would be necessary to remove and replace the topsoil, repair the dike, set in flumes and a watergate, and clean the ditches. Cranberry vines would then have to be set in and a layer of sand placed around them. The fine beach sand found on Parcel 1 and the Savage property is not the most suitable for cranberry cultivation on this property but it could be utilized. The cost of reclamation would be approximately $5,000 an acre.

Even if steps are taken to reclaim the bog its operation might not be successful. There is a risk that, in the event of unusual weather conditions, the property will be flooded with salt water. There is also the possibility of saline infusion in the soil through the process of reverse leaching (where the salt rises from the hardpan to the topsoil). Furthermore, Konner may not be able to market the cranberries commercially in the United States in light of a Federal marketing order issued by the Secretary of Agriculture. That order would not prevent her from selling cranberries, however, in a foreign market.

Since purchasing the property in 1971, Konner has taken no steps to make Parcel 3 operational as a cranberry bog. However, she has not excluded cranberry farming as a potential use and, should she so desire, has the financial capacity to reclaim the bog.

The plaintiffs maintain that the sanding rights have been lost by abandonment. Although there are no cases on the subject in this Commonwealth, it is clear that a profit a prendre, like an easement, can be abandoned. Gerhard v. Stephens, 68 Cal.2d 864, 882, 69 Cal.Rptr. 612, 442 P.2d 692 (1968). Restatement of Property §§ 504, 450, special note (1944). 3 H. Tiffany, Real Property § 847 (3d ed. 1939). In cases dealing with easements, we have held that the rights of a dominant owner will not be extinguished under the theory of abandonment unless there is nonuser coupled with an intent to abandon. Nonuser alone, no matter how long continued, will not suffice. Desotell v. Szczygiel, 338 Mass. 153, 158-159, 154 N.E.2d 698 (1958). It is also necessary to show "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence. Willets v. Langhaar, 212 Mass. 573, 575, 99 N.E. 466 (1912)." Dubinsky v. Cama, 261 Mass. 47, 57, 158 N.E. 321, 324 (1927).

Applying these principles, the judge of the Land Court ruled that the plaintiffs failed to establish that Konner had the requisite intent to abandon the profit a prendre. The plaintiffs contend that this intent was established by (1) evidence that a series of owners allowed the deterioration of the dikes, flumes, and watergate and the resulting salt water contamination of the bog area and (2) evidence that Konner constructed a pond on Parcel 3 to beautify the locus. We disagree.

We are of the opinion that the failure to repair the dikes and flumes, while some evidence of an intent to abandon, did not conclusively establish it. This is consistent with our decision in Desotell v. Szczygiel, 338 Mass. 153, 154 N.E.2d 698 (1958), where we held that abandonment of an easement could not be shown merely from nonuse by the dominant owners for many years "coupled with their failure to clear the right of way of its natural cover of trees and brush." Id. at 159, 154 N.E.2d at 702. The plaintiffs' reliance on Sindler v. William M. Bailey Co., 348 Mass. 589, 204 N.E.2d 717 (1965), as setting forth a contrary proposition is misplaced. In that case there was an element of adverse use by the servient owner in addition to nonuser and neglect by the dominant owner. Id. at 593, 204 N.E.2d 717.

Nor was the act of constructing the pond sufficient to establish the requisite intent. The pond covered only one acre of the 17.19 acre bog area and thus replaced only a fractional part of the entire acreage available for cranberry growing. It is well settled that "abandonment is not proved by proof of acts which interfere with use of the easement only temporarily, or only in part." 3 R. Powell, Real Property par. 423, at 526.37 (P. Rohan ed. 1977) (footnotes omitted).

The plaintiffs also maintain that the profit a prendre has been extinguished because the limited purpose for which it was created has ceased to exist. The argument is based primarily on our decision in Makepeace Bros. v. Barnstable, 292 Mass. 518, 198 N.E. 922 (1935). There the town of Barnstable reserved an easement in certain areas of a peninsula known as Sandy Neck for the operation of "try-yards" (areas where whalers boiled or "tried" blubber to extract its oil) and for access thereto. This court upheld the Land Court judge's conclusion that the easement, which was created for the limited purpose of whaling, was extinguished on the disappearance of the whale fishing industry from the vicinity. It was stated, "When a right in the nature of an easement is incapable of being exercised for the purpose for which it is created the right is considered to be extinguished." Id. at 525, 198 N.E. at 926.

In applying that language to this case, the judge of the Land Court analyzed the evidence to determine whether there was a "possibility, given the...