Silverleib v. Hebshie, 91-P-295

Citation33 Mass.App.Ct. 911,596 N.E.2d 401
Decision Date30 July 1992
Docket NumberNo. 91-P-295,91-P-295
PartiesIra SILVERLEIB, Trustee, & another 1 v. John F. HEBSHIE, Trustee, & another. 2
CourtAppeals Court of Massachusetts

Philip C. Nessralla, Jr., Brockton, for defendants.

Paul Marshall Harris, Boston (Gregory P. Fuccillo, with him), for plaintiffs.

Before BROWN, KASS and LAURENCE, JJ.

Beneath this dispute lies a sewer line installed by the Hebshies, the defendants, across land once owned by the city of Brockton and now owned by the plaintiffs. We shall refer to the plaintiffs collectively as "Silverleib" for convenience of reference. Silverleib brought an action under G.L. c. 231A, for a declaration that he held his land free of any easement or license in favor of the Hebshies. By way of additional relief, Silverleib asked the court to order the Hebshies to remove the sewer line or to refrain from using it and for damages. In a Delphic order, the Superior Court judge allowed Silverleib's motion for summary judgment and entered a judgment that said, "summary judgment is allowed." Inferentially, that reflects the judge's view that the Hebshies could not maintain the sewer line across Silverleib's land as matter of right, a view with which we concur. The judge made no order whether the Hebshies should remove or relocate the sewer line or simply stop using it, nor did he say anything about damages. A remand is necessary.

These, as taken from the summary judgment materials, are the undisputed facts. The Hebshies are the owners of two adjoining parcels of land in West Bridgewater, bounded on one side by the Brockton city line. Since 1967, the Hebshie property has been used as a mobile home park. In 1969, the sewerage commission of Brockton gave permission to the Hebshies' predecessor in title to tie into the Brockton sewerage system. The only document produced pertaining to this arrangement is a letter from the superintendent of the sewer department, dated June 26, 1969, informing the selectmen of West Bridgewater "that the Brockton Sewerage Commissioners have granted the Court Realty, Inc. permission to tie into the Brockton Sewerage System to serve the Beacon Trailer Park." Between the nearest Brockton sewer and the Hebshie property in West Bridgewater lay a 3.91 acre parcel which belonged to the city of Brockton (the Brockton parcel). Sometime after the letter on behalf of the sewerage commission, the Hebshies installed a subsurface sewer line from their premises across the Brockton parcel.

Silverleib acquired the Brockton parcel on December 23, 1980. The chain of title to Silverleib is devoid of any document purporting to allow a sewer line in that land. The Hebshies claim an easement on a variety of theories.

1. Easement by grant. An easement by grant requires a writing signed by the party to be bound. Stevens v. Stevens, 11 Met. 251, 255-256 (1846). Estabrook v. Wilcox, 226 Mass. 156, 158, 115 N.E. 233 (1917). Baseball Pub. Co. v. Bruton, 302 Mass. 54, 58, 18 N.E.2d 362 (1938). Mendler, Massachusetts Conveyancers' Handbook §§ 3.2, 3.4 (3d ed. 1984). The writing upon which the Hebshies rely, the letter from the superintendent of the sewer department, says no more than that the owners of the Hebshie parcel have "permission to tie into" the Brockton sewer. That document grants no right to traverse the Brockton property and, from what we are able to see from a plot plan furnished with the brief filed on behalf of the Hebshies, it is not self-evident that traversing the Brockton property was the only way to get to the sewer; it was merely the shortest and most convenient way. To this we may add that the person who signed the letter, the superintendent of the sewer department, has not been shown to have the remotest authority to convey an interest in land on behalf of the city (see G.L. c. 39, § 1 and c. 40, § 3), and even by the generous standards of cases such as Hurley v. Brown, 98 Mass. 545, 547-548 (1868), Mead v. Parker, 115 Mass. 413, 415 (1874), and Giles v. Swift, 170 Mass. 461 463, 49 N.E. 737 (1898), the document provides no hints by which an easement might be located.

2. Prescriptive easement. Silverleib acquired the Brockton parcel from the city in 1980. That fact has decisive consequences for the Hebshies. As the Hebshies maintain that the city consented to their planting a pipe across the city's property, the use was not adverse until the city sold it to Silverleib in 1980. See Ryan v. Stavros, 348 Mass. 251, 263, 203 N.E.2d 85 (1964); Uliasz v. Gillette, 357 Mass. 96, 101, 256 N.E.2d 290 (1970). Consequently, the period for acquiring a right by prescription in what was the Brockton parcel and is now the Silverleib property cannot have begun to run until 1980 and is, thus, well short of the necessary twenty years. See G.L. c. 187, § 2.

3. Easement by estoppel. To the extent that there are limited occasions in which a party may be estopped from denying an easement over its property (see Uliasz v. Gillette, 357 Mass. at 102, 256 N.E.2d 290), Silverleib did nothing upon which the Hebshies relied and cannot be so estopped. If one were to pursue the doubtful proposition that Silverleib was somehow...

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