Polchlopek v. Div. of Fisheries & Wildlife

• Decision Date: 06 March 2012
• Docket Number: 11-P-760
• Parties: JUDITH M. POLCHLOPEK v. DIVISION OF FISHERIES AND WILDLIFE & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

JUDITH M. POLCHLOPEK v.DIVISION OF FISHERIES AND WILDLIFE & another. ¹

11-P-760

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: March 6, 2012

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale.Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case.A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from the allowance of summary judgment in favor of the defendants by a judge of the Land Court who determined, in connection with the plaintiff's amended complaint to quiet title, that an order of taking by the Commonwealth extinguished whatever easement by implication, if any, the plaintiff may have had, as it was not 'of record.'We affirm.

The plaintiff, owner of a parcel of approximately twenty-three acres of landlocked, undeveloped land in the town of Dartmouth, brought an action in the Land Court seeking a declaration that she holds an easement by implication over an ancient cart path called 'Woods Road,' extending from Division Road easterly across land owned by the Commonwealth and then southerly along the northeastern border of land owned by Stephen J. Weiner.²At the summary judgment stage, the judge reviewed the record and determined that the Commonwealth had obtained title in fee simple to its parcel in 1999 by the order of taking.With regard to any nonpossessory rights in the parcel, the taking stated, in relevant part: 'Further excepted from the rights herein taken are (1) all rights-of-way of record now lawfully still in force and in or upon said area or areas hereby taken . . . .'

In Massachusetts, 'an eminent domain taking in fee simple extinguishes all other interests in the subject property.In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate.'New England Continental Media, Inc. v. Milton,32 Mass. App. Ct. 374, 376(1992)(citations omitted).Here, the Commonwealth took 'in fee simple absolute.'The plaintiff therefore cannot maintain her easement absent evidence that, upon the record before us, Woods Road constitutes a right of way 'of record.'

In an attempt to bolster the force of the asserted easement, the plaintiff suggests an easement created by implication must be considered an easement of record, relying on Labounty v. Vickers,352 Mass. 337(1967).Such reliance is misplaced.In Labounty,defendants challenged the creation and enforceability of an implied easement to access a neighborhood beach, under G. L. c. 184, § 25.While the deeds held by the plaintiffs did not contain express easements to access the beach, they made explicit reference to a recorded plan in which the right of way appeared in both a visual representation and verbal description.Labounty, supra, at 344-345.The court held the plan was thereby incorporated into the legal deed, and was recorded in due course.Put another way, recordation of the deed 'create[d]' the easement.SeeLabounty, supra at 347.

Contrary to the suggestion made by the plaintiff, the easement in Labounty was deemed recorded and therefore enforceable on the facts of the matter presented, namely on the grounds that the deeds containing the description of the easement were properly recorded.The facts here are distinguishable as neither plans containing an easement nor the deed was recorded in the registry of deeds.As was recently stated: '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.'Reagan v. Brissey,446 Mass. 452, 458(2006), quotingLabounty, supra.Here, as there is no easement 'of record,' any easement the plaintiff may have is not excepted from the order of taking.

The plaintiff also bases her assertion upon cases discussing the impact of the statutory right to install utilities upon implied easements held to arise 'by deed,'³ and contends that language therein supports that an implied easement was a right 'of record' that survived the taking.However, even if an easement were held to arise 'by deed,'the plaintiff cannot avail herself of the protections set forth in the 1999 order of taking.The issue thus becomes whether there is a difference in meaning between 'rights of way of record' and an easement that arises 'by deed.'

In our view, the significance of recording an easement lies in its permanent nature, and that recordation does not require speculative inquiry into the original intention of the parties.To the extent the plaintiff contends the record demonstrates an easement by implication or by necessity, the record contains no evidence that the plaintiff held any easement 'of record.'

Under Massachusetts law, an easement can only arise by grant, prescription, estoppel or implication.Silverlieb v. Hebshie,33 Mass. App. Ct. 911, 911- 913(1992).The plaintiff claims that she has an easement by necessity, and that it arises by deed and, therefore, is 'of record.'⁴SeeNew England Continental Media, Inc. v. Milton, supra at 378, ('An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel').Under the theory of necessity, it is well-established that the 'owner of land may make use of one part of his land for the benefit of another part in such a way that upon a severance of the title[,] an easement, . . . may arise that corresponds to the use which was previously made of the land while it was under common ownership.'Krinsky v. Hoffman,...