107 Manor Avenue LLC v. Fontanella

Vuono, J.

The plaintiff, Robert W. Carlson,² brought this action seeking to eliminate rights in a paper street which crosses through the middle of his property in the town of Wellesley. Carlson’s neighbors, Mark D. and Joan M. Fontanella (the Fon-tanellas), opposed him. The street, shown on a 1940 subdivision plan as Tyler Road, has never been constructed, accepted as a public way, or used as a private way, in Wellesley. The Fontanel-las themselves use a portion of the way that passes over their property as an extension of their side lawn, A judge of the Land Court denied Carlson’s motion for summary judgment and ordered dismissal of the complaint on the grounds that the Fontanellas had acquired registered rights to use Tyler Road when they purchased their property and the evidence of abandonment was insufficient. We reverse.³

Background. The following facts are not in dispute. In 2002, Carlson purchased property located at 107 Manor Avenue in Wellesley. The property is described in Carlson’s certificate of title as “Lot 35 on Land Court Plan no. 17321C.”⁴ Although there is currently a single-family residence on the lot, Carlson would like to replace it with a new residence but cannot do so since Tyler Road, at least on paper, covers most of his lot. The Fontanellas own adjacent property described in their certificate of title as lot 45 on a plan approved by the Land Court numbered 17321G. The Fontanellas’ property, on which their residence is located, has frontage and a driveway on Manor Avenue in Wellesley.

Land Court plans numbered 17321C and 17321G each depict Tyler Road as a paper street, which begins on the sideline of Manor Avenue, extends into the Fontanellas’ side yard and through the middle of Carlson’s lot, and continues across and beyond the town line between Wellesley and Weston at the rear of Carlson’s property. Tyler Road first appeared in Land Court files on a plan submitted in August, 1940, which subdivided a large parcel of newly registered .land located in both Wellesley and Weston.⁵ Carlson’s lot was created in 1954 when the land was re-subdivided. The Fontanellas’ lot was created in 1975 after a second re-subdivision. All of the owners of registered lots within the subdivision, including, eventually, the Fontanellas, acquired the right to use the ways and streets as shown on the 1940 plan when they purchased their properties.⁶

Tyler Road became a major road providing frontage for many of the newly registered lots in the Weston subdivision, but it was never built in Wellesley. As previously noted, Tyler Road has never been used as a road, improved as a public or private way, or accepted by the town of Wellesley. At the point on Carlson’s northerly boundary line where Tyler Road theoretically crosses into Weston, it is blocked by a stone wall that has existed since 1940. In addition, private parties have constructed a stockade fence that makes passage between the two towns at that juncture impossible.⁷ The entire area at issue, furthermore, has been fully incorporated into the lawns of both parties. In Carlson’s case, Tyler Road also crosses over a portion of his driveway.

The town of Wellesley stipulated that it had no objection to the discontinuance of Tyler Road. At the time of the hearing on Carlson’s motion for summary judgment, the Fontanellas were the only property owners claiming the right to use Tyler Road.⁸

Discussion. In his decision denying Carlson’s motion for summary judgment, the judge noted that the Fontanellas had never used Tyler Road but held that Carlson had failed to establish that the Fontanellas intended to abandon their rights in the way.⁹ The judge’s ruling rests on his view that the evidence established no more than the Fontanellas’ nonuse of the paper street. Nonuse, by itself, however long continued, will not operate to extinguish an easement. Desotell v. Szczygiel, 338 Mass. 153, 159 (1958). We disagree with the judge’s conclusion, however, because the record establishes more than mere nonuse of the easement.

Whether there has been an abandonment of an easement is a question of intention to be ascertained from the surrounding circumstances and the conduct of the parties. Sindler v. William M. Bailey Co., 348 Mass. 589, 592 (1965) (“Abandonment is a question of intention. It can be shown by acts indicating an intention never again to make use of the easement in question”) (citations omitted). Our review of the record here reveals a history of acquiescence indicative of the Fontanellas’ intention never to make use of Tyler Road as it is shown on the 1940 plan. Since acquiring their property in 1992, the Fontanellas have used Manor Avenue (for ingress and egress, etc.) exclusively. They have neither taken any steps to remove the stone wall or stockade fence blocking access to the easement from Weston nor objected to Carlson’s or his predecessors’ use of the area as a lawn and driveway.

Our cases indicate that failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment. See Lund v. Cox, 281 Mass. 484, 492-493 (1933) (physical obstructions making use of easement impossible combined with lack of objection over extended period of time sufficient to raise presumption that easement right abandoned); Sindler, 348 Mass. at 593 (inference that easement has been abandoned was warranted where all owners other than servient landowner both ceased using right of way for thirty-five years and failed to object to physical obstruction enclosing disputed area). Cf. First Natl. Bank of Boston v. Konner, 373 Mass. 463, 466-467 (1977) (profit á prendre held not abandoned where dominant landowner had in the past undertaken use of land as envisioned by profit agreement and where construction of a pond on small portion of dominant tenement was deemed only a partial inconsistent use insufficient to show requisite intent to abandon).

The Fontanellas have furthermore engaged in conduct inconsistent with the exercise of their right to use Tyler Road as a private way. They concede, as they must, that they use the portion of Tyler Road which curves through their side yard as if it were an extension of their lawn.¹⁰ In Lasell College v. Leonard, 32 Mass. App. Ct. 383 (1992), we held that the evidence of abandonment was sufficient where the owner of property abutting a paper street had never used the area as a way, had acquiesced over a long period of time in the use of the area as a lawn and driveway by the adjacent landowner, and had engaged in an affirmative act inconsistent with the use of the easement.¹¹ While in that case the affirmative act consisted of erecting a stockade fence separating his property from the way, see id. at 391, the Fontanellas’ affirmative act of appropriating a portion of the way for use as their yard is likewise sufficient. One does not ordinarily maintain an area as a lawn with the intention of using it, and allowing others to use it, as a road. See Proulx v. D’Urso, 60 Mass. App. Ct. 701, 704 n.2 (2004), a case involving the relocation of an easement established by deed, wherein this court observed that “[a]ny deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment” (emphasis added).

We further observe that Tyler Road was originally created in 1940 to provide access from the Wellesley side of the subdivision to the Weston side but that, at least since 1954, Manor Avenue has been laid out as a continuous public way providing frontage to the lots in Wellesley and thus rendering Tyler Road obsolete. While the judge correctly ruled that lack of necessity or obsolescence will not, alone, suffice to extinguish an express easement, see Emery v. Crowley, 371 Mass. 489, 495 (1976), we nonetheless consider evidence of obsolescence as further support for our conclusion that Tyler Road has been lost by abandonment. It may be, as the dissent notes, that extension of a lawn has not been held to constitute abandonment in circumstances considered by previous cases. But it has long been established that the intent to abandon is determined on a case by case basis.

The conclusion we reach in this case is consistent with the trend toward allowing the elimination of useless easements generally.¹² The easement as it now exists on Carlson’s land does not provide access to anything. There is no evidence that anyone has ever traveled over Carlson’s land or, for that matter, over the Fontanellas’ land to reach Tyler Road in Weston or Manor Avenue in Wellesley. During oral argument counsel for the Fontanellas candidly informed us that the Fontanellas oppose the discontinuance of Tyler Road primarily because they are concerned that construction of a new home on Carlson’s lot will cause their basement to flood. See White v. Peabody Constr. Co., 386 Mass. 121, 126 (1982) (“an admission may be established by a statement of counsel at oral argument”). Given the circumstances, we believe that no one, least of all the Fontanellas, has the intention to use the paper street other than for the purpose of controlling development of Carlson’s lot.

Accordingly, the judgment is reversed, and the matter is remanded to the Land Court to issue an amendment to Carlson’s certificate of title and a declaration of rights consistent with this opinion.

So ordered.

2 After his appeal was docketed in this court, Carlson transferred the property to The 107 Manor Avenue LLC. His motion to substitute a party was allowed. We continue to refer to Carlson as the plaintiff for the sake of clarity.

3 We acknowledge the brief submitted by amicus curiae William V. Hovey.

4 Carlson’s certificate of title, issued from the Norfolk County registry district of the Land Court, does not contain a metes and bounds description.

5 The judge took judicial notice of the documents on file in the Land Court pertaining to the original registration case entered in March, 1940. See Brookline v. Goldstein, 388 Mass. 443, 447 (1983). Since the land was located in two different counties, two judgments and plans, one for the Weston property and one for the Wellesley property, were entered in March, 1940. Neither of these plans delineated Tyler Road.

6 The Fontanellas’ certificate of title provided, in pertinent part, as follows: “The above described land is subject to and has the benefit of the rights of Way set forth in Documents Nos. 82219 and 86036, so far as applicable.” Document 86036 is a grant from the original developer, Neillian Realty Co., to various grantees “and to all owners at any time of any of the lots shown on plans hereinafter referred to, or any subdivision thereof,” of “[a] right to use the streets and ways shown on plan dated January 1940, filed with Middlesex South Registry District of the Land Court, as Plan No. 17321-B, Sheet One, . . . and on plan dated August 22, 1940, filed with Norfolk Registry District of the Land Court, as Plan No. 17321-B, Sheet Two. The intent of this instrument is to create a right of way as appurtenant to all lots shown on said plans or which may be shown on any future subdivision thereof over the streets and ways on said plans.”

7 The stone wall appears in the original Land Court registration case filed in 1940. The record is silent as to when the stockade fence was built, who constructed it, and whether it has been maintained.

8 Since the elimination of Tyler Road affects registered land, the judge ordered a title examination to determine the identity of all interested land owners. The owners of approximately thirty-four lots, mostly located in the Weston subdivision, were subsequently served with Carlson’s complaint. With the exception of the Fontanellas, only one other property owner, who later entered into a judgment by agreement, filed an answer. The other property owners were subsequently defaulted pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974).

9 As to whether the easement was extinguished, we agree with the judge that Carlson has the burden of proof, as he affirmatively asserted that the easement had been extinguished. See New York Cent. R.R. Co. v. Swenson, 224 Mass. 88, 92 (1916).

10 That the Fontanellas have incorporated only a portion of the easement into their lawn is not significant in our view.

11 By contrast, in the same case we held that another landowner, Lasell College, had not relinquished its rights in the way because it had expressly refused to release the easement when asked to do so on a previous occasion and had not engaged in any affirmative acts indicating an intent to abandon. Id. at 390.

12 See Restatement (Third) of Property § 7.10(1) (2000) (“When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude”).