Fitzgerald v. Harlow
| Decision Date | 29 June 2021 |
| Docket Number | 20-P-385 |
| Citation | 170 N.E.3d 369 (Table),99 Mass.App.Ct. 1131 |
| Parties | Cynthia A. FITZGERALD & another v. Courtland P. HARLOW, Third, & others. |
| Court | Appeals Court of Massachusetts |
The defendants, Courtland P. Harlow, III, Daniel P. Harlow, and Dorothy P. Harlow (collectively, Harlows) appeal from a Land Court judge's decision declaring that Cynthia A. Fitzgerald and David D. Fitzgerald (collectively, Fitzgeralds) have, appurtenant to their property at 12 Sunset Road in Kingston, an express easement over the Harlows’ beach. The Harlows argue that the trial judge erred in (1) concluding that the Fitzgeralds have an express easement, (2) concluding that the easement had not been extinguished, and (3) excluding certain evidence. We affirm.
Background. We recite the facts as found by the trial judge, reserving certain details for later discussion. The entire area that forms the subject of this litigation was once owned by David and Barbara McClosky, who, in 1951, created a plan subdividing the area into multiple lots (1951 plan). Kingston Bay is shown on the 1951 plan as bordering the easternmost boundary of the property. The 1951 plan does not label any particular area as "beach."
The Fitzgeralds currently own lot C on the 1951 plan, now known as 12 Sunset Road. Courtland and Daniel Harlow currently own the neighboring property, a portion of lot A on the 1951 plan, now known as 24 Sunset Road.4 The Harlow property abuts Kingston Bay, but the Fitzgerald property does not.
The McCloskys first conveyed the Fitzgerald property by a 1951 deed that provided that the property was conveyed "together with a right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay." The Fitzgeralds’ deed states that the conveyance is "subject to the restrictions, and with the privileges and rights, set forth in" the 1951 deed from the McCloskys to the original purchaser of 12 Sunset Road. At the time the McCloskys first conveyed the property at 12 Sunset Road, they still owned lot A, where 24 Sunset Road is located. They also owned Sunset Road to Kingston Bay as a separate parcel.
There presently are two relevant "beaches" at Kingston Bay: Harlow Beach that abuts the Harlow property at 24 Sunset Road, and a small public beach located at the end of Sunset Road, adjacent to the Harlow property, and referred to as "Triangle Beach." Triangle Beach became public pursuant to a 1963 taking by the town of Kingston. The record does not reflect that, in 1951, when the original deed to the Fitzgerald property was executed, there was any demarcation separating what is now Triangle Beach from what is now referred to as Harlow Beach. Indeed, as noted above, the 1951 plan does not label anything as "beach."
David Fitzgerald was childhood friends with the former owner of 12 Sunset Road, Richard Gallagher. Gallagher purchased that property in 1968, and the two men frequently visited Harlow Beach together from 1969 until 1994. The Fitzgeralds inherited the property from Gallagher after his death in 1999 and, since then, the Fitzgeralds have continued to use Harlow Beach. Beginning in 2000, the Harlows attempted to exclude the Fitzgeralds from Harlow Beach by erecting no trespassing signs, sending no trespassing notices, placing chairs to block access to the beach, and calling the police to report perceived trespasses.
In 2016, the Fitzgeralds filed suit in the Land Court seeking, inter alia, a declaratory judgment that they had an express easement to use Harlow Beach. After a trial, the judge found that, in fact, the Fitzgeralds have an express deeded easement to use Harlow Beach. The judge dismissed with prejudice the counterclaim filed by the Harlows asserting the doctrine of promissory estoppel. This appeal followed.
Discussion. 1. Standard of review. On appeal from a trial court judgment, we review a judge's findings of fact for clear error, Brandao v. DoCanto, 80 Mass. App. Ct. 151, 156 (2011), but review a judge's conclusions of law de novo. Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014).
2. Express easement. "An express easement can be created only by a writing signed by the party to be bound, and the writing ‘must identify with reasonable certainty the easement created and the dominant and servient tenements.’ " Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 674 (2019), quoting Parkinson v. Assessors of Medfield, 395 Mass. 643, 645 (1985). "Where an easement is created by deed, its meaning, ‘derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.’ " Chamberlain, supra, quoting Patterson v. Paul, 448 Mass. 658, 665 (2007). "When the language of the applicable instruments is ‘clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.’ " Hamouda v. Harris, 66 Mass. App. Ct. 22, 25 (2006), quoting Cook v. Babcock, 7 Cush. 526, 528 (1851).
The party claiming an easement bears the burden of proving its existence. Hamouda, 66 Mass. App. Ct. at 24 n.1. See Boudreau v. Coleman, 29 Mass. App. Ct. 621, 629 (1990). However, a deed will be construed most strongly against the grantor. Estes v. DeMello, 61 Mass. App. Ct. 638, 642 (2004). "A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed" (quotation and citation omitted). Labounty v. Vickers, 352 Mass. 337, 344 (1967).
In the present case, we see no error in the judge's conclusion that Harlow Beach is part of the "beach at said Kingston Bay" as described in the Fitzgeralds’ deed; nor do we see error in her conclusion that the Fitzgeralds have an express easement over Harlow Beach. Nothing in either the original deed or on the 1951 plan suggests that the "beach at said Kingston Bay" was limited, as the Harlows now argue, to Triangle Beach at the end of Sunset Road. The evidence at trial supports the judge's conclusion that the "beach" "is that area extending from the base of the sea wall easterly to the low water mark" of Kingston Bay.5 At the time that the McCloskys first conveyed the Fitzgerald property, they still owned all of lot A including the 200-foot wide beach adjacent to Kingston Bay, as well as Sunset Road and what is now Triangle Beach. Other than the subdivision lot lines,6 nothing on the 1951 plan purported to differentiate between what is now referred to as Triangle Beach and the beach on the Harlow property.7 In addition, the judge viewed 24 Sunset Road, Triangle Beach, and Harlow Beach in May 2019.
That Triangle Beach was taken by eminent domain some twelve years after easement rights over the "beach at said Kingston Bay" were granted to the Fitzgeralds’ predecessor has no bearing on what the McCloskys intended in their 1951 deed. Contrary to the Harlows’ bald assertions, the taking itself in 1963 is not evidence that the McCloskys intended in 1951 to confer an easement only over that portion of the "beach at said Kingston Bay" that is now Triangle Beach. Further, apparently the judge was not persuaded that, in 1951, only Triangle Beach was referred to colloquially as "the beach at said Kingston Bay," separate and apart from the rest of the beach adjacent to Kingston Bay and then owned by the McCloskys.
The McCloskys used the general phrase "the beach at said Kingston Bay" and the plain meaning of that phrase includes all of the beach abutting Kingston Bay shown on the 1951 plan as owned by the McCloskys. As already noted, "[i]t is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Bernard v. Nantucket Boys’ Club, Inc., 391 Mass. 823, 827 (1984), quoting Thayer v. Payne, 2 Cush. 327, 331 (1848). While the deed itself is not ambiguous because nothing in the deed or the 1951 plan suggests that there existed in 1951 more than one collective "beach at said Kingston Bay," the foregoing rule of construction also applies when the extent of an easement is uncertain because the description in the deed is brief or unclear. See Atkins v. Bordman, 2 Met. 457, 463-464 (1841). Here, the judge correctly construed the language used in the deed most strongly against the grantor and reasonably concluded that the express easement extends to Harlow Beach.8
As the judge noted, the attendant circumstances support this conclusion. On the same day that the McCloskys conveyed the property that is now 12 Sunset Road, they also conveyed to the Post family a larger lot to the west of 12 Sunset Road (lot D). The Post deed provides that no more than five dwelling houses may be erected on lot D and that no business should be carried on at that property except for summer rentals. The Post deed also contains the same grant "to use the beach at said Kingston Bay." The fact that the McCloskys foresaw up to six households, including summer rentals, using the beach is consistent with a finding that they intended to grant easements over all of the beach, and not to limit the easements to Triangle Beach, which is only 350 square feet.
Also, if the McCloskys intended to limit the scope of the easement to Triangle Beach, they easily could have done so in the deed. See Estes, 61 Mass. App. Ct. at 642. This is particularly true where the 1951 plan showed in close proximity to the beach a house on lot A that was owned by the McCloskys when they first sold the Fitzgerald property. If it was the McCloskys’ intention to reserve to the owners of lot A a private beach, they could have done so. In the absence of such limiting language, use of the phrase, the "beach at said Kingston Bay," is reasonably interpreted to mean all of the beach at Kingston Bay owned by the McCloskys at the...
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