Harrington v. Lamarque

• Decision Date: 27 March 1997
• Docket Number: No. 95-P-489,95-P-489
• Citation: 677 N.E.2d 258,42 Mass.App.Ct. 371
• Parties: Earl C. HARRINGTON & others 1 v. Maurice P. LAMARQUE & others. 2
• Court: Appeals Court of Massachusetts

Page 258

677 N.E.2d 258

42 Mass.App.Ct. 371

Earl C. HARRINGTON & others ¹ v. Maurice P. LAMARQUE & others. ²

No. 95-P-489.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 10, 1996.

Decided March 27, 1997.

Richard L. Wainwright, Brockton, for plaintiffs.

Duane P. Landreth, Orleans, for defendants.

Before PERRETTA, PORADA and GREENBERG, JJ.

PERRETTA, Justice.

All the parties in this action own lots in a subdivision in Harwich. The plaintiffs' lots are situated about one-half mile from a private beach reserved for use by the subdivision owners. They claim that their express easements to use the beach and to pass and repass over a strip providing access to the beach from a road in the subdivision give them an implied easement to park on that road. The defendants' lots abut the road. On cross motions for summary judgment, the Land Court judge concluded that although the plaintiffs have a general right of passage along the road, their right of passage does not imply a right to park. On the plaintiffs' appeal, we conclude that whether there exists an implied right to park on the road turns on genuine issues of fact that must be resolved and reverse the judgment.

1. The undisputed facts. There are eight lots in the subdivision which are abutted by The Dunes Road to the north and beach to the south. That strip of beach is designated as "Beach Reserved For Recreation" (beach) on a composite of a portion of the subdivision plan. There is a five-foot wide pedestrian path situated between two of the defendants' lots which runs from The Dunes Road to the beach and over which the plaintiffs have the right "to pass and repass." Title to the pedestrian path and the reserved beach is in Allen's Harbor Beach Association. It appears from various plans that most, if not all, of the roadways in the subdivision as developed are thirty feet wide except for the portion of The Dunes Road that abuts the defendants' lots. ³ There the width of the road increases to forty feet.

We turn to the parties' chain of title, the defendants' first. In 1946, the developer of the subdivision, Allen's Harbor Property, Inc., conveyed what was then Lots 1 and 2 (now Lots 1A, 1B, and 2) to Benjamin F.C. Whitehouse and Gladys M. Whitehouse and Lot 3 to William E. Foster and Alta M. Foster. Thereafter, the Whitehouses built a house which straddled the boundary line between their two lots.

Following the death of Gladys M. Whitehouse, the surviving spouse of Benjamin F.C. Whitehouse, the executor of her estate recorded a "Plan of Land in Harwich, Massachusetts" (the Whitehouse Plan). The Whitehouse Plan reconfigured the original Lots 1 and 2 on the subdivision plan, and created Lot 1A, which was vacant, and a house lot which included Lots 1B and 2.

On November 1, 1991, the executor conveyed the vacant Lot 1A to the defendant Luftman. Lots 1B and 2 were conveyed to the defendants Lamarque on December 24, 1992. William E. Foster died in 1963 and Alta M. Foster, the surviving spouse, died in 1971. The trustees under her will then conveyed Lot 3 to Eleanor P. Caterino, who, in turn, conveyed the lot to the defendants Ladin on September 26, 1989. The five-foot wide pedestrian pathway runs between Lots 2 and 3. All the deeds to Lots 1A, 1B, 2 and 3 describe those lots as being bounded "by The Dunes Road" and thereby convey to the abutting lot owners (the defendants) the fee in The Dunes Road to its center line.

Title to those

properties now owned by the plaintiffs came to them as follows. On March 5, 1979, Allen's Harbor Properties, Inc., conveyed the properties to Charles W. Jessen, Trustee of Allen's Harbor Properties Trust (the trust). The deed also recited that the properties were conveyed "... together with fee in all private ways shown on any of the above mentioned Plans and the fee in that area marked 'Beach Reserved for Recreation' on ... [the Subdivision plan]." ⁴ Consideration for the conveyance was stated as "distribution pursuant to corporate liquidation."

Thereafter the trust conveyed a large parcel to Harbor Pines Realty, Inc. (Harbor Pines). That large parcel was further subdivided through a plan of land entitled "Plan of Land in Harwichport, Mass. for Harbor Pines Realty, Inc.," creating what today is the Harrington Lot. The Harrington Lot was conveyed on July 19, 1979, by Harbor Pines to Elizabeth B. Harrington who, on June 3, 1988, conveyed the lot to herself and Earl C. Harrington. Lots were also conveyed by the trust to the plaintiffs Uzzo by deed dated May 3, 1979, and to the plaintiffs Recka by deed dated May 25, 1979. All the deeds in the plaintiffs' chain of title convey:

"the right to use the land marked 'Beach Reserved for Recreation' [on the subdivision plan] and the right to pass and repass over the strip of land five (5) feet wide lying between lots 2 and 3 on said plan, all in common with the owners and occupants of the other lots on said plan lying East of Brooks Road." ⁵

All the deeds into the plaintiffs are silent with respect to rights to park on The Dunes Road. However, prior to purchasing their lots within the subdivision, each of the plaintiffs was told by a representative of the grantor trust that they and their families could park on The Dunes Road in order to use the pedestrian pathway to the beach. Further, each of the plaintiffs has parked on The Dunes Road in front of the defendants' lots on a regular basis during the summer since 1979. Indeed, during certain years, Ms. Whitehouse or representatives of the trust issued parking permits or other forms of identification to the plaintiffs and other subdivision lot owners. One subdivision lot owner, not a party to this dispute, has parked in front of the defendants' lots since 1951, first as a guest of a lot owner and, since 1978, as a lot owner in his own right.

After the defendants Luftman and Lamarque purchased their lots from Ms. Whitehouse's executor, and during the winter of 1993, they placed plantings and a split-rail fence parallel to the northerly boundary of their properties and within the layout of The Dunes Road. The purpose of the fence was to prevent parking in front of their lots. The fence encroaches on The Dunes Road by seven and one-half to ten and one-half feet.

2. Discussion. In granting summary judgment to the defendants, the Land Court judge reasoned as follows. As residents of the subdivision, the plaintiffs have rights in all private ways in the subdivision to the extent that use of those private ways is necessary to access their property. See Fox v. Union Sugar Refinery, 109 Mass. 292, 297-298 (1872); Hill v. Taylor, 296 Mass. 107, 116, 4 N.E.2d 1008 (1936); Canton Highlands, Inc. v. Searle, 9 Mass.App.Ct. 48, 54-55, 398 N.E.2d 759 (1980). Further, because the plaintiffs possess deeded rights to access and use the pedestrian pathway and the beach, they also possess by implication the right to pass and repass over The Dunes Road to the pathway. See Scagel v. Jones, 355 Mass. 208, 210-211, 243 N.E.2d 908 (1969); Jackson v. Knott, 418 Mass. 704, 711-712, 640 N.E.2d 109 (1994). She concluded, however, that an implied right to pass and repass does not include the right to park. See Opinion of the Justices, 297 Mass. 559, 562-564, 8 N.E.2d 179 (1937) (right to pass and repass does not include the right to park but only to make temporary and reasonable stops incidental to the travel).

On appeal, the plaintiffs argue that when the original easement for use of the pedestrian pathway and beach was created, the parties intended that the widened portion of The Dunes Road be impressed with an easement for the parking of vehicles as such use is reasonably necessary for the full enjoyment of their deeded rights. ⁶ The Land Court judge's conclusion that the plaintiffs have no right to park on The Dunes Road was made as matter of law, that is, an implied right to pass and repass did not imply a right to park. While we agree that a right to pass and repass does not normally imply a right to park, we think the Land Court judge erred in not considering, as matter of fact, whether the scope of this particular implied easement included, on the circumstances presented, the right to park on the widened portion of The Dunes Road. ⁷

Whether the developers and the grantees of Lots 1A, 2 and 3 (the defendants' predecessors) intended to create an implied parking easement involves questions of fact. "[I]mplied easements, whether by grant or by reservation, do not arise out of necessity alone. Their origin must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Dale v. Bedal, 305 Mass. 102, 103, 25 N.E.2d 175 (1940). See Perodeau v. O'Connor, 336 Mass. 472, 474, 146 N.E.2d 512 (1957); Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629, 564 N.E.2d 1 (1990). Additionally, "[r]easonable necessity...