Waldron v. Tofino Associates, Inc., Not Reported in N.E.

2d (2012)

2012 WL 5193424 Only the Westlaw citation is currently available. Massachusetts Land Court. Department of the Trial Court, Hampshire County. Elizabeth C. WALDRON, Paul A. Mardas, Stephen B. Hathaway, Marie Hershkowitz, Lawrence R. Tatro, Karen K. Tatro, Eileen O'Kane, and Mary Now, Plaintiffs v. TOFINO ASSOCIATES, INC., Northern Avenue Homes, Inc., Living City Properties, Inc., and Avetus Vanasse a/k/a Avetus G. Vanasse and his Heirs, 1 Defendants. No. 08 MISC 374551(KFS). Opinion DECISION KARYN F. SCHEIER, Chief Justice. *1 Plaintiffs initiated this action on March 14, 2008, by filing a seven-count complaint seeking to establish and clarify the parties' rights of ownership and use of two ways shown on a plan of land in Northampton. 2 Defendants set forth two counterclaims seeking: (1) a declaration that Northern Avenue Homes, Inc. (Northern Homes) and Living City Properties, Inc. (Living City) have an easement over a certain unnamed way and Plaintiffs have no right of access over View Avenue; and (2) equitable relief barring Plaintiffs from obstructing or interfering with Defendants' rights. In May 2009, Plaintiffs filed a motion for partial summary judgment on Count I of the Complaint, which was opposed by Defendants. By order dated January 5, 2010, this court denied Plaintiffs' motion for summary judgment. Thereafter, this matter was scheduled for trial. A two-day trial was held on July 12 and 13, 2010. Due to the dismissal of certain claims and parties both before and during trial, the trial itself pertained only to the portions of Counts I through VII of the complaint and the counterclaims regarding rights in the unnamed subdivision way, all claims pertaining to View Avenue having been dismissed. At trial Defendants presented testimony of Douglas Kohl, a principal of Tofino Associates, Inc., Northern Homes, and Living City; Paul Roger Lussier, a registered land surveyor with Berkshire Design Group; Lester E. Gavin, an expert in aerial photography interpretation; and Dennis Helmus, Plaintiff Waldron's tenant. Plaintiffs proffered the testimony of Plaintiff Paul A. Mardas. By agreement, the deposition of Plaintiff Elizabeth C. Waldron was submitted in lieu of testimony. Fifty-six exhibits were entered in evidence, as well as a Joint Statement of Agreed Facts. Defendants moved for a required finding pursuant to Mass. R. Civ. P. 41(b)(2) at the close of all the evidence which was opposed in writing by Plaintiffs. The motion was denied by this court by order dated September 29, 2010. The court took this matter under advisement after the submittal of post trial briefs, comprised of findings of fact and conclusions of law. Based on the parties' stipulations and on all the evidence and reasonable inferences drawn therefrom, this court finds the following material facts: 1. The parcels of land which are the subject of the dispute between the Plaintiffs and Defendants, i.e. the unnamed subdivision way and all lots adjacent to that way, are shown on a plan entitled Plan of Land, Estate of Mrs. Caroline M. Roberts (Plan) dated May 29, 1913, recorded February 17, 1915, with the Hampshire Country Registry of Deeds in Book 3, at Page 16. 3 | Oct. 22, 2012.

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

The Plan subdivides the property owned by the Estate of Mrs. Caroline M. Roberts (Roberts Homestead) into seventyfour lots. 4

Parties 2. Plaintiff Elizabeth C. Waldron (Waldron) owns Lot 65 and the easterly half of Lots 61 and 63, by deed from Waldron and Theresa J. Coffey, dated June 23, 1997, recorded in Book 5144, at Page 63. *2 3. Plaintiff Paul A. Mardas (Mardas) owns Lot 27, by deed from Margaret B. Mardas, dated August 10, 1994, recorded in Book 4533, at Page 185. 4. Plaintiff Stephen B. Hathaway and Marie Hershkowitz own Lots 14, 16, 18, 39, 41, and 43, by deed from Roger A. Walaszek, Executor under the will of Harriet M. French, dated October 15, 1987, recorded in Book 3074+-, at Page 197. 5. Plaintiff Mary Now owns Lot 25, by deed from Thomas A. Cavanaugh and Cynthia A. Cavanaugh, dated October 7, 1980, recorded in Book 2189, at Page 111. 6. Defendant Northern Homes owns Lots 22, 24, 26, 28, 30, 32, 47, 49, 51, 53, 55, 57, and 59, by deed from McCutcheon Development, LLC, dated September 7, 2005, recorded in Book 8428, at Page 219. 7. Defendant Living City owns Lots 12 and 37, by deed from Roland L. Lavallee, dated July 6, 2007, recorded in Book 9191, at Page 300. 8. Defendants Northern Homes and Living City, as well as Plaintiffs Waldron, Mardas, Hathaway, and Hershkowitz, all own the fee in the portions of the unnamed subdivision way abutting their respective lots as shown on the Plan. Relevant Conveyances 9. By deed dated December 15, 1915, recorded in Book 718, at Page 351, the heirs of Caroline M. Roberts (Roberts Heirs) conveyed the southwesterly half of the Roberts Homestead to Hanna T. Moriarty (Moriarty Parcel). The parties have stipulated to the dismissal of all claims of ownership pertaining to the Moriarty Parcel. 5 10. By deed dated September 2, 1914, recorded in Book 705, at Page 325, the Roberts Heirs conveyed the northeasterly half of the Roberts Homestead to Victor J.L. Bernier and Avetus Vanasse (Vanasse) (Vanasse Parcel). 11. The two above-mentioned deeds did not convey the respective parcels by reference to the Plan, but rather utilized metes and bound descriptions for the parcels. The unnamed subdivision way and all lots adjacent to that way which are the subject of this dispute between Plaintiffs and Defendants were formerly part of the Vanasse Parcel. 12. By deed dated April 23, 1919, recorded in Book 746, at Page 49, Victor J.L. Bernier conveyed his one-half interest in the Vanasse Parcel to Vanasse. Thus, as of April 23, 1919, Vanasse was the sole owner of the Vanasse Parcel. 13. By deed dated October 5, 1921, recorded in Book 772, at Page 330, Vanasse conveyed a one-half interest in Lot 65 to M.C. Kroll (Kroll). The description of land contained within the deed provides, in relevant part, bounded Northwesterly along a contemplated street. Two months later, on December 22, 1921, the deed was amended by a confirmatory deed recorded in Book 775, at Page 64. The confirmatory deed changed Northwesterly along a contemplated street to Northeasterly by an open way. (emphasis added.) 14. By deed dated April 22, 1922, recorded in Book 778, at Page 487, Vanasse and Kroll conveyed Lot 65 to Frank Menegat and Carmelo Menegat (Menegats). The description provides, in relevant part, that the lot is bounded Northeasterly by an open way. Following this conveyance, the Menegats owned the portion of unnamed way abutting their property in fee. Vanasse and Kroll did not expressly retain any rights therein.

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

*3 15. By deed dated April 7, 1924, recorded in Book 803, at Page 379, Vanasse conveyed Lot 27 to Edward C. Callanan and Mabel T. Callanan (Callanans). The description provides, in relevant part, that the lot is bounded Southwesterly by an open way. Following this conveyance, the Callanans owned the portion of unnamed way abutting their property in fee. Vanasse did not expressly retain any rights therein. 16. By deed dated November 6, 1931, recorded in Book 876, at Page 193, Vanasse conveyed Lots 6, 20, 22, 24, 26, 28, 30, 32, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, and 63 as shown on the Plan to Louis R. Marin and Delia Marin (Marins). 17. By deed dated July 10, 1942, recorded in Book 967, at Page 189, the Marins conveyed Lot 37 as shown on the Plan to Roland Lavallee and Gabriele Lavallee (Lavallees). 6 18. By deed dated January 7, 1944, recorded in Book 978, at Page 236, the Marins conveyed Lot 39 and 41 as shown on the Plan to George E. French and Harriet E. French. 19. By deed dated June 29, 1949, recorded in Book 1050, at Page 414, the Marins conveyed Lots 22, 24, 26, 28, 30, 32, 43, 45, 47, 49, 51, 53, 55, 57, and 59 to Donald I. King (King). King was not expressly granted any rights in the unnamed subdivision way in the deed from the Marins. Through mesne conveyances, Northern Homes is now the record title holder of Lots 22, 24, 26, 28, 30, 32, 47, 49, 51, 53, 55, 57, and 59. 20. At all times relevant hereto, North Street and Northern Avenue were and are existing public ways in the City of Northampton. 21. Pursuant to a Final Judgment of the Hampshire County Probate and Family Court recorded in Book 3716, at Page 298, that court determined that Alan R. Kirouac and Patricia M. Kirouac (Kirouacs) established their ownership by adverse possession of a 4,000 square foot portion of the unnamed subdivision way (Final Judgment Parcel). As shown on the Decision Sketch attached hereto, the Final Judgment Parcel is bounded by Northern Avenue to the East, Lots 22 and 24 to the North, the remainder of the unnamed way to the West, and Lot 20 to the South. See Kirouac v. Vanasse, Probate Court Case No. 91E001G1 (1991). 22. Wetland boundaries on Lots 22 and 24 are as shown on plans filed with the Northampton Conservation Commission for the proposed North Street Condominium (Exhibit 38) and as determined by the Commissioner's Order of Conditions (Exhibit 37). 23. A forty-foot right of way shown on the plans filed by Defendant Tofino Associates, Inc., with the Northampton Planning Board (Exhibit 40) is in the same location as the unnamed subdivision way abutting Lots 49, 51, 53, 55, 57, 59, 61, 63, and 65, and Lots 27, 29, 31, 33, 35, 37, 39, 41, and 43 on the Plan. 24. The forty-foot right of way shown on an ANR Plan of Land in Northampton (Exhibit 41) is the same as the unnamed subdivision way abutting Lots 49, 51, 53, 55, 57, 59, 61, 63, 65 and Lot 27 on the Plan. *4 25. The Exist. fence to remain shown on the plans filed with the Northampton Planning Board (Exhibit 40) is the same fence about which Plaintiff Waldron testified in her deposition. I. Discussion An action to quiet title under G.L.c. 240, 10, is an action in rem brought under the court's equity jurisdiction. 7 See G.L .c. 185, 1(k); 8 see also Bevilacqua v. Rodriguez, 460 Mass. 762, 768 (2011). [I]n equity the general doctrine is well settled, that a bill to remove a cloud from the land ... [requires that] both actual possession and the legal title are united in the plaintiff. First Baptist Church of Sharon v. Harper, 191 Mass. 196, 209 (1906). Here, Plaintiffs Waldron, Mardas, Hathaway, and Hershkowitz, and Defendants Northern Homes and Living City claim both actual possession of and legal title to portions of the Unnamed

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

Way. Plaintiffs and Defendants have legal title to the way adjacent to their respective properties by operation of the Derelict Fee Statute, G.L.c. 183, 58. 9 The parties also seek declaratory relief under G.L.c. 231A. 10 A party seeking declaratory judgment under G.L.c. 231A must set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a definite interest and the denial of such assertion by the other party, where the circumstances ... indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue. Hogan v. Hogan, 320 Mass. 658, 662 (1947). The actual controversy requirement of G.L.c. 231A, 1, is ... liberally construed. Boston v. Keene Corp., 406 Mass. 301, 304 (1989). [A]n express purpose of declaratory judgment is to afford relief from ... uncertainty and insecurity with respect to rights, duties, status and other legal relations. Boston, 406 Mass. at 30405 (quoting G.L.c. 231A, 9). Count I of Plaintiffs' complaint and Defendants' counterclaim seek to resolve the same issue, the purported existence of an easement over the Unnamed Way. 11

A. Ownership of the Fee and Rights in the Unnamed Way As it is undisputed that Plaintiffs and Defendants own the fee in the portion of the Unnamed Way abutting their respective properties, it is unnecessary to discuss the application of the Derelict Fee Statute. 12 As such, Defendants now must establish they have an easement in the Unnamed Way in order to use the portion of the way adjacent to Lots 65, 63 and 61 and Lot 27, for ingress and egress. Defendants allege an easement over the Unnamed Way by estoppel, implication, or both. As set forth above, Vanasse and Kroll conveyed Lot 65 to the Menegats in 1922. Through mesne conveyances Waldron now holds record title to Lot 65 and the easterly half of Lots 61 and 63. Mardas' predecessors-in-title acquired record title from Vanasse who, in 1924, conveyed Lot 27 by deed to the Callanans. Through mesne conveyances Mardas is now the current record owner of Lot 27. *5 Northern Homes also traces its title to Vanasse. Vanasse deeded the lots currently owned by Northern Homes to the Marins who then deeded the property to Donald I. King. Edith I. King, Administratrix of Donald I. King's estate conveyed the property to the Matuseks who then conveyed title to McCutcheon Development, LLC, from which Northern Homes acquired title. In order to establish an easement by implication, the party asserting the easement must show (1) both dominant and servient estates once were owned by the same person or persons, i.e., that there existed a unity of title and (2) a severance of that unity by conveyance .... Kitras v. Aquinnah, 64 Mass.App.Ct. 285, 291 (2005). As set forth above, at one point in time the lots currently owned by the parties were all a part of the Vanasse Parcel owned solely by Vanasse. Therefore, the court must next determine the circumstances surrounding the severance of common ownership of the relevant disputed portions of the Unnamed Way. Plaintiffs argue that severance occurred in 1922 when Vanasse and Kroll conveyed Lot 65 to Menegats and in 1924 when Vanasse conveyed Lot 27 to the Callanans. Defendants contend that the severance of title of the subdivision lots now owned by Northern Homes was in 1931, upon a conveyance from Vanasse to the Marins. This court finds that the severance of common ownership that informs this court's decision were the conveyances that occurred in 1922 and 1924 when Vanasse conveyed lots 65 and 27 to the Menegats and Callanans respectively. This court also holds that Vanasse did not retain an easement over the Unnamed Way adjacent to lots 65 and 27 at the time of those conveyances and did not have any such rights after those conveyances. As a result of not retaining an easement in the Unnamed Way, Vanasse could not convey such a right to the Marins in 1931. It is a fundamental principal of law that a grantor cannot convey to a grantee more rights in land than the grantor has. Lombardi, Bailin, Hovey, & Pill, Massachusetts Easements and Land Use Restrictions I38 (2003) (It is axiomatic that a grantee cannot receive an easement over land in which its grantor has no rights).

B. Implied Easement by Necessity The party asserting an easement by implication bears the burden of proof. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 105 (1933). The burden is heavier for a grantor asserting an implied easement by reservation than a grantee asserting

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

an implied easement by grant. Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). That is because of the rule that a deed is to be construed most strongly against the grantor [which] may render it more difficult to imply an easement by reservation for the grantor's benefit than an easement by grant for the grantee's benefit. Dale v. Bedal, 305 Mass. 102, 103 (1940). An easement by necessity is implied for the benefit of the grantor when a parcel held in common ownership is divided leaving the portion retained by the grantor landlocked. See Nylander v. Potter, 423 Mass. 158, 162 (1996). Easements by implication generally are created when land under single ownership is severed and the easement is reasonably necessary for the enjoyment of one of the parcels. Silverlieb v. Hebshie, 33 Mass.App.Ct. 911, 912 (1992). As explained in Adams v. Planning Bd. of Westwood, 64 Mass.App.Ct. 383, 390 (2005), a conveyance of land which renders the grantor's remaining land landlocked ordinarily gives rise to an easement by necessity, based on the presumed intention of the grantor to retain access to his remaining land. The necessity must arise at the time the parcel is divided and conveyed and no more than a reasonable necessity is required by law. See New York & New England R.R. v. R.R Commissioners, 162 Mass. 81, 83 (1894); Perodeau v. O'Connor, 336 Mass. 472, 474 (1957). Importantly, the existence of alternative acccess precludes the establishment of an easement by necessity. See Nylander, 423 Mass. at 162, n. 9; Silverlieb, 33 Mass.App.Ct. at 912. *6 At the time the Waldron and Mardas properties were conveyed, in 1922 and 1924, respectively, the grantor, Vanasse, retained ownership of the remainder of the Vanasse Parcel. The remainder of the Vanasse Parcel was not landlocked, nor was it dependent on the portion of Unnamed Way adjacent to lots 65 and Lot 27. Much of the remaining Vanasse Parcel directly abutted either Northern Avenue or North Street and the interior lots on the Plan could access Northern Avenue by traveling along the remainder of the Unnamed Way, still owned by Vanasse. Defendants argue that an easement by necessity arose because access to the subdivision lots was created by the Plan, which depicted and contemplated the Unnamed Way as granting access to all of the subdivision parcels. As shown on the Plan (and on the Decision Sketch attached hereto), the Unnamed Way has two access points to public waysone to Northern Avenue and one to North Street. Thus, when Vanasse deeded the two lots (27 and 65), both at the intersection of North Street and the Unnamed Way, the remaining Vanasse Parcel and every lot shown on the Plan had alternative access along the Unnamed Way to Northern Avenue. As a result, this court does not find that an easement by necessity arose in either 1922 or 1924. See Silverlieb, 33 Mass.App.Ct. at 912 (courts unwilling to find easement by necessity where alternative access existed). This court acknowledges that the Final Judgment of the Hampshire County Probate and Family and Court, which gave ownership to a portion of the Unnamed Way to the Kirouacs, resulted in an elimination of the access of the Unnamed Way to Northern Avenue. 13 The Final Judgment, however, was not entered until May 3, 1991, decades after lots 65 and 27 were conveyed in the 1920's, and at the time of those conveyances, all of the subdivision lots had adequate access to Northern Avenue along the Unnamed Way. 14 Therefore, Defendants' claim of an easement by necessity must fail. Vanasse did not retain an easement by necessity over the portion of the way adjacent to lots 65 and 27 when he deeded those two lots out, thereby severing his ownership of them from the remainder of the Vanasse Parcel because at that time, the land was not landlocked and there was an alternative route for him to access Northern Avenue.

C. Implied Easement by Reference to Way on Plan Implied easements over ways shown on a plan arise when a plan is referenced in a deed and the parties to the deed clearly intended to create an easement. See Boudreau v. Coleman, 29 Mass.App.Ct. 621, 628 (1990). In the absence of ... [an] express reservation, the conveyance of land with reference to a plan creates such an easement, other than by necessity, only if clearly so intended by the parties to the deed. Boudreau, 29 Mass.App.Ct. at 628 (emphasis added) (quoting Scagel v. Jones, 355 Mass. 208, 211 (1969)). In such a situation, the 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) (quoting Jackson v. Knott, 418 Mass. 704, 711 (1994)). Such intent is determined at the time common ownership of the parcel is

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

severed and is 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. Brissey, 446 Mass. at 458 (quoting Labounty v. Vickers, 352 Mass. 337, 344 (1967)). Additionally, reasonable necessity should also be considered in determining if it was the presumed intent of the parties to a deed to create an easement. Boudreau, 29 Mass.App.Ct. at 630. *7 This court finds that Defendants did not satisfy their burden to establish an easement by implication based on reference to a plan. In reaching this conclusion, the court looked to the 1922 and 1924 deeds and the circumstances surrounding those conveyances to determine if, at the time of severance of title, it was the clear intention of the parties to create an easement over the Unnamed Way. This court looks first to the Plan to determine the intent of Vanasse. The Plan depicting the subdivision was not created by Vanasse, but rather by either Roberts or her heirs. This raises the question as to whether it was the intention of Vanasse to further subdivide the land and utilize the Unnamed Way for ingress and egress, or whether Vanasse merely inherited the Plan when he acquired a portion of the Roberts Homestead. Additionally, when the Roberts Homestead was divided creating the Vanasse Parcel and the Moriarty Parcel, the line dividing the two parcels bisected Lot 32. Vanasse, however, never filed an amended subdivision plan nor redrew the boundary lines for Lot 32 to account for the bisection. Even though Vanasse adopted the Plan to identify by lot numbers the land he subsequently conveyed, it is not clear from the record that he intended to create an easement over the Unnamed Way when he conveyed lots 65 and 27 in 1922 and 1924 respectively. Both lots had frontage on a public way (North Street) so neither needed rights along the Unnamed Way and, as set forth above Vanasse himself had other options for access from his remaining land to two public ways. In a further attempt to glean the intention of the parties from the record instruments, this court reviewed other deeds. In a 1921 deed from Vanasse to Kroll, in which Vanasse conveys a one-half interest in Lot 65 to Kroll, Lot 65 is described with reference to the Plan and also as Northwesterly along a contemplated street (Unnamed Way Boundary). Approximately two months later, Vanasse issued a corrective deed in which he properly changes Lot 65's Unnamed Way Boundary from northwesterly to northeasterly, changing the language from Northwesterly along a contemplated street to Northeasterly by an open way. When Vanasse and Kroll deeded Lot 65 to the Menegats in 1922, the lot is also described as bounded Northeasterly by an open way. Additionally, in 1924 when Vanasse conveyed Lot 27 to the Callanans, the deed described Lot 27's Unnamed Way Boundary as Southwesterly by an open way. The court notes, as do Plaintiffs, that the designations street and way are sometimes used interchangeably, and the difference in language is not significant. More significantly, it is the fact that the direction of the bound was incorrect and needed to be changed. In addition, the phrase Vanasse used to describe the Unnamed Way Boundary changed from along to by. This difference also creates some ambiguity as Vanasse's intention with respect to whether he meant to retain any fee in the Unnamed Way abutting lots 65 and 27, now owned by Plaintiffs Waldron and Mardas, respectively. Taken with subsequent deeds, this court concludes that he did not so intend. *8 In 1931, approximately ten years after conveying lots 65 and 27, Vanasse conveyed the majority of the Vanasse Parcel including all of the interior lots shown on the Plan to the Marins. In the Marins deed, Vanasse did not make reference to any rights in the Unnamed Way, but he conveyed referencing lot numbers on the Plan. 15 The failure to include an easement along the Unnamed Way in the 1931 deed to the Marins is consistent with Vanasse's failure to retain rights over it in 1922 and 1924 and further indicates that he did not think he had the retained right to grant one to the Marins, at least over Lot 27 and Lot 65. If it was his intention to create an easement to access North Street in 1922 and 1924, Vanasse likely would have included an easement in the 1931 deed to the Marins, when he conveyed his remaining interior lots. Also, Vanasse did not make any conveyances of the remaining subdivision lots between 1924 and the 1931 and he never staked out or began construction of the Unnamed Way. Lastly, inasmuch as reasonable necessity is one factor the court should consider in ascertaining at the parties' intent to create an easement by reference to a plan, this court notes that when lots 65 and 27 were severed from the Vanasse Parcel, the remainder

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

of the parcel had access to Northern Avenue by traveling over the portion of the Unnamed Way not adjacent to lots 65 and 27. See Boudreau, 29 Mass.App.Ct. at 630 (stating there was no evidence indicating the land would be landlocked without use of the ways shown on the plans). Therefore, at the time of severance, it was not reasonably necessary for the remaining subdivision lots to use the portion of the Unnamed Way adjacent to lots 65 and 27 because a reasonable alternative existed. It is well established that where land is conveyed with reference to a plan, an easement is ... created only if clearly so intended by the parties to the deed. Duddy v. Mankewich, 75 Mass.App.Ct. 62, 67 (2009). A clear intention can be established notwithstanding the fact that a grantor conveyed individual lots without either expressly reserving rights in the way or expressly granting a right of way. See Scagel, 355 Mass. at 210; Cheever v. Graves, 32 Mass.App.Ct. 601, 608 (1992). However, this court cannot find on this record a clear intention of the parties to create an easement over lots 65 and 27 when looking at the 1922 and 1924 deeds and the circumstances surrounding those conveyances. As a result, this court holds that Defendants have failed to establish an easement by implication based on reference to a plan.

D. Easement by Estoppel Cases recognizing the creation of an easement by estoppel fall into two general categories. First, when a grantor conveys land that is bounded on a street or way, the grantor and those claiming under the grantor are estopped from denying the existence of the way and the grantees' rights therein, whether or not the street or way is currently in existence. Patel v. Planning Bd. of North Andover, 27 Mass.App.Ct. 477, 482 (1989). Second, when a grantor conveys land in reference to a recorded plan on which a street is shown, the grantor and those claiming under the grantor are estopped from denying the existence of the street. Id. *9 It is well settled that an easement created by estoppel, under either set of circumstances, estops the grantors and their successors in title from denying the existence of an easement. See Id. (emphasis added). However, the doctrine of easement by estoppel in this commonwealth has not been expanded to estop the grantees and their successors in title from denying the existence of an easement. See Id. (emphasis added). Moreover, Massachusetts has declined to find easements created by traditional notions of estoppel based on conduct or a representation, rather than by describing land in a deed or showing it on a plan being bounded on a way. Lombardi et al., supra, at I 38. The Appeals Court in a 1:28 decision issued in 2009, acknowledged that Patel may have left open the question as to whether an easement can be created on general estoppel principles but declined to address this question, leaving intact case law limiting easements by estoppel to the benefit of grantees. Blue View Const. v. Town of Franklin, 07P1950 (Memorandum and Order Pursuant to Rule 1:28 (2009)). As set forth above, at one point in time the lots currently owned by the parties were all a part of the Vanasse Parcel owned solely by Vanasse. At the time lots 65 and 27 were conveyed in the 1920's, title to the remainder of the parcel was held by Vanasse. Defendants subsequently took title to a portion of the property that was held by Vanasse after lots 65 and 27 were deeded out. Therefore, at the time the Mardas and Waldron properties were conveyed, Defendants took under the grantor and Plaintiffs took under the grantees. As the doctrine of easement by estoppel has not been expanded in Massachusetts to general estoppel principles and remains within the purview of grantees only, Defendants, as grantors, are unable to assert a claim for easement by estoppel. For this reasons, the court holds that Vanasse did not retain a right of way over lots 65 and 27 following the 1922 and 1924 conveyances through this doctrine.

F. Conveyances Post 1924 Defendants argue that an easement was created over the portion of the Unnamed Way adjacent to Plaintiffs' lots in 1931, upon the conveyance of Lots from Vanasse to the Marins. 16 However, a basic principal of law is that a grantee cannot receive an easement if his or her grantor has no rights. Lombardi et al., supra, at I 39. The grantor must either own the land or have easement rights in the way for an easement to be created. Id.

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

After the conveyances of Lots 65 and 27 in the 1920's, with no reservation of an easement by Vanasse, the Menegats and the Callanans owned the portion of Unnamed Way abutting their respective lots in fee, and were not subject to an easement. Thus, in 1931, Vanasse could not grant the Marins an easement because he did not have one. Furthermore, an easement by estoppel was not created as a result of the 1931 conveyance from Vanasse to the Marins. Courts have continuously treated a grantor's ownership of adjoining land as a limit on the extent of an easement by estoppel. Burnham v. Mahoney, 222 Mass 524, 528 (1916) (A right of way by grant would have been created to use the street throughout its length so far as it extended over the grantor's land or was his to grant.); see also Hennessey v. Old Colony & Newport Railroad Co., 101 Mass. 540, 540 (1869) ( the whole extent of the doctrine is that, a grantor of land, describing the same by a boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting up any claim, or doing any acts inconsistent with the grantees use of the street or way. (emphasis added)). Before assuming an easement by estoppel exists, a court must first determine if the grantor either owned the land or had easement rights in the way. Lombardi Et al., supra, at I 39. This court finds that an easement by estoppel could not be created in 1931 over lots 65 and 27 because Vanasse retained no rights in the Unnamed Way. *10 As explained above, in 2007, the Lavallees conveyed Lot 37 to Defendant Living City, granting: [A] right of way in common with others over the roadway forty (40) feet wide located along the Southwesterly side of the above-conveyed premises for the purpose of passing and repassing on foot or with vehicles from North Street over said roadway to the Northwesterly line of said Lot # 37. Such description indicates a clear intent by the parties to the deed to convey to the grantees an easement for ingress and egress on and over a portion of Unnamed Way, as described in the deed. However, the Lavallees did not have the ability to grant such an easement. Lot 37 was a part of the conveyance from Vanasse to the Marins in 1931. Lot 37 was then conveyed from the Marins to the Lavallees in 1942. That deed is not part of the record and it is therefore unknown if the Marins granted the Lavallees a right of way over lots 65 and 27 to access North Street. However, it is irrelevant if the deed from the Marins to the Lavallees recites that an easement was granted because they, like Vanasse, had not easement rights to grant. For this reason this court finds that Living City does not have an easement to access North Street over those portions of the Unnamed Way adjacent to Plaintiff s' properties as shown on the Plan. For the reasons set forth above, this court concludes that Defendant Living City and Defendant Northern Homes have failed to satisfy their burden of proof and have not established that they have easement rights over the portion of the Unnamed Way adjacent to Plaintiffs' properties. 17 Judgment will issue in accordance with this decision.

JUDGMENT Plaintiffs initiated this action on March 14, 2008, by filing a seven-count complaint seeking to establish and clarify the parties rights of ownership and use of two ways shown on a recorded plan of land in Northampton. Defendants counterclaim sought a declaration that Northern Avenue Homes, Inc. (Northern Homes) and Living City Properties, Inc. (Living City) have an easement over one of the two ways (Unnamed Way), and that Plaintiffs be barred from interfering with Defendants rights. Several claims and parties were dismissed from the case before and during trial, leaving for disposition only the claims relating to the use of the Unnamed Way among Plaintiffs Elizabeth C. Waldron, Paul A. Mardas, Stephen B. Hathaway, Marie Hershkowitz and Mary Now, and Defendants, Northern Homes and Living City.

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Waldron v. Tofino Associates, Inc., Not Reported in N.E.2d (2012)

A two-day trial was held July 12 and 13, 2010, at which five witnesses testified in person and one deposition was introduced in lieu of testimony. Fifty-six exhibits and an agreed statement of facts were introduced in evidence. A decision of todays date in favor of Plaintiffs has issued. In accordance with that decision, it is hereby ADJUDGED and DECLARED that Defendants Northern Avenue Homes, Inc., and Living City Properties, Inc., do not have easement rights of access and egress over the portion of the Unnamed Way, so-called, adjacent to Lots 65, 63, 61, 27, 39, 41, and 43, the properties owned by Plaintiffs Waldron, Mardas, Hathaway, and Hershkowitz, all as shown on a plan of land entitled Plan of Land, Estate of Mrs. Caroline M. Roberts, dated May 29, 1913, recorded February 17, 1915, with the Hampshire County Registry of Deeds in Book 3, at Page 16# (Plan). It is further *11 ADJUDGED and ORDERED that Defendants and those acting by, through, or under them, are prohibited from acting in such a way as to interfere with the rights of Plaintiffs to use their Lots shown on the Plan free and clear of any access rights in favor of Defendants.

Footnotes Defendant Avetus Vanasse a/k/a Avetus G. Vanasse and his heirs were dismissed from the case pre-trial. Also prior to trial, on April 1
16, 2010, all parties stipulated that all claims advanced by Plaintiff Eileen O'Kane against Defendants and all counterclaims against Plaintiff Eileen O'Kane could be dismissed pursuant to Mass. R. Civ. P. 41(a)(1)(ii). During the trial, the parties stipulated to the dismissal of all claims involving Plaintiffs Lawrence R. Tatro and Karen K. Tatro against Defendant Tofino Associates, Inc. (Trial Tr. vol. I, 12, July 12, 2010; Trial Tr. vol. II, 48, July 13, 2010.) Plaintiffs' complaint sought: (1) a declaration that Defendants have no rights of access over a certain unnamed subdivision way and a way known as View Avenue; (2) equitable relief barring Defendants from interfering with Plaintiffs' rights; (3) to quiet title to portions of Defendants' land in Plaintiffs' possession; (4) to clear a cloud on Plaintiffs' title caused by Defendants' claims of ownership; (5) to establish title to the disputed premises through adverse possession; (6) to establish a prescriptive easement over the disputed premises; and (7) damages for Defendants' alleged trespass on Plaintiffs' property. All references to recorded instruments are to this registry All references in this decision to properties by lot numbers are to this Plan. Attached to this decision is a Sketch which is a copy of Exhibit 3 (Chalk A), which itself is a copy of the Plan, with notations. The Moriarty Parcel is shown on a plan recorded in Book 3, at Page 100A, a copy of which is Exhibit 2 (Plan of Building Lots Belonging to Daniel D. Moriarty). The deed is not a part of the record; however, the conveyance is referenced on a later deed dated July 6, 2007, recorded in Book 9191, at Page 300, in which the Lavallees conveyed Lot 37 to Defendant Living City. The deed from the Lavallees to Living City contains language indicating an express easement in favor of Living City, purporting to grant ... a right of way in common with others over the roadway forty (40) feet wide located at the Southwesterly side of [Lot 37 as shown on Plan] for the purpose of passing and repassing on foot or with vehicles from North Street over said roadway to the Northwesterly line of said Lot# 37. In Count III of the Complaint, Plaintiff brings an action to quiet title and in Count IV brings an action to remove a cloud on the title. The Supreme Judicial Court in First Baptist Church of Sharon v. Harper, 191 Mass. 196 (1906), later restated in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), states that an action to quiet title is an action to remove a cloud from the land . Therefore Counts III and IV are read conjunctively. G.L.c. 185, 1(k) states the Land Court has exclusive jurisdiction over [a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts. In addition to Counts III and IV, the parties seek further equitable relief under G.L.c. 185, 1(k). In Count II of the complaint Plaintiffs seek to prevent interference by Defendants with the rights of Plaintiff while Defendants in their counterclaim request an order from the Court prohibiting Plaintiffs from interfering with their rights to the unnamed subdivision way. See Statement of Agreed Facts No. 14. See Count I of the Complaint and Defendants' Counterclaim, First Claim for Relief. Plaintiffs also seek title to the Unnamed Way through adverse possession or prescriptive easement and both parties seek damages for trespass. These issues will be discussed below in footnote 17. See Fact paragraph 8

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See Fact paragraph 21. This portion of the Unnamed Way, including lots 20 and 45 is now owned by Northern Avenue Condominiums as a result of that Final Judgment. Today, it is infeasible to travel over lots 22 and 24 in order to connect the Unnamed Way to Northern Avenue because of wetlands in that area. See Fact paragraph 22. However, as stated above, at the time the Waldron and Mardas properties were conveyed in the 1920's, all of Vanasse's remaining lots had adequate access to Northern Avenue along the Unnamed Way. Lots 6, 20, 22, 24, 26, 28, 30, 32, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59,61, and 63. See Footnote 15 for lots conveyed. The court declines to opine on the issue of the extinguishment of the easement as it finds that no such easement, by estoppel, necessity, or implication, arose. Additionally, and for the same reasons, this Court does not rule on the adverse possession and prescriptive easement claims of Plaintiffs. Finally, this court notes that while Mary Now is a named Plaintiff, there do not appear to be any claims directed by Defendants against her property (Lot 25 on the Plan.) Plaintiffs in Count VII also allege a claim for trespass. As this Court finds that no easement exists in the portion of the Unnamed Way adjacent to the Waldron and Mardas properties, Defendants trespassed on the land of Plaintiffs when traversing over it to reach their land. Plaintiffs, however, do not seek damages for harm, if any, caused by Defendants to their land and no evidence supporting damages was presented at trial.
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