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14-P-1762 Appeals Court
MELROSE FISH AND GAME CLUB, INC. vs. TENNESSEE GAS PIPELINE
COMPANY, LLC.
No. 14-P-1762.
Middlesex. November 17, 2015. - June 20, 2016.
Present: Cypher, Trainor, & Rubin, JJ.
Easement. Real Property, Easement. Estoppel. Subdivision
Control, Decision of planning board. Practice, Civil,
Injunctive relief. Laches.
Civil action commenced in the Superior Court Department on
April 23, 2013.
The case was heard by Kimberly S. Budd, J., on motions for
summary judgment.
Brian J. McNelis for the plaintiff.
Dianne R. Phillips (Nathaniel F. Hulme with her) for the
defendant.
RUBIN, J. The plaintiff, Melrose Fish and Game Club, Inc.
(club), sued Tennessee Gas Pipeline Company, LLC (TGP) in
Superior Court for trespass because of TGP's alleged
2
interference with an easement1 and breach of contract. The suit
arises from TGP's construction, in 1998, of a natural gas
pipeline facility across the entire width of Cheever Avenue in
Saugus, a paper street over which the club claims an easement.
On cross motions for summary judgment, the Superior Court
judge allowed TGP's motion and denied the club's. The judge
ruled, first, that the breach of contract claim was barred by
the six-year statute of limitations in G. L. c. 260, § 2;
second, that the club's easement over Cheever Avenue had been
extinguished before it filed suit, either by estoppel or by
frustration of purpose; and, third, that even if the easement
still existed, the club's request for injunctive relief would be
barred by laches. The club appeals the second and third
rulings. We reverse.
Background. The club owns three lots of land in Saugus
near the Melrose border. TGP owns a lot that shares a border
with one of the club's lots. The land making up these four
lots, along with much of the surrounding land in Saugus, was
once owned by Wilbur F. Newhall. In 1910, a plan subdividing
1
The club captions count II of its complaint "trespass" and
seeks damages from TGP for a "continuing trespass." The
Superior Court judge treated count II as stating a cause of
action for interference with an easement. Cf. New England Box
Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943). Since the
facts pleaded in the complaint put TGP on notice as to the
nature of the club's cause of action, this minor semantic
difference is of no moment.
3
Newhall's land into dozens of different lots was recorded at the
registry of deeds (1910 plan). The 1910 plan shows Cheever
Avenue bounding lots 76-80, amongst others, on their northeast
sides. Up until around 1999, Cheever Avenue was entirely a
paper street.2
In 1963, the club acquired lots 78-80 from Saugus (club
lots), which had acquired the lots by tax takings between 1930
and 1951. The original deeds for those lots, as well as all
subsequent deeds, describe them as being bounded by Cheever
Avenue and as being numbered lots 78-80 on the 1910 plan. The
tax takings describe the lots as located on Cheever Avenue.
In 1998, TGP built the natural gas facility (facility) at
issue in this case. On March 9, 1998, TGP entered into a Right
of Way Agreement (agreement) with the club. This agreement
allowed TGP to use a small area in the northeast corner of lot
78 during construction and to build its facility over a portion
of lot 78 and a portion of Cheever Avenue. This portion
extended to the midline of the paper street. The agreement,
along with a drawing, was recorded. The drawing indicates the
location of "Cheever Street [sic]." TGP also exercised its
power of eminent domain, pursuant to an order by the Federal
2
A paper street is "a street shown on a plan but not built
on the ground." Berg v. Lexington, 68 Mass. App. Ct. 569, 570
(2007).
4
Energy Regulatory Commission (FERC), to take a portion of lot
77, the lot immediately to the north of lot 78, which was then
owned by the Birch Hill Realty Trust, also known as the
Brentwood Estates Development Group (Brentwood Estates).3 On
July 21, 1998, the United States District Court for the District
of Massachusetts issued an order granting TGP a perpetual
easement and right of way over a portion of this lot. The order
and an attached drawing were recorded. The drawing indicates
the location of Cheever Avenue. TGP constructed its natural gas
facility between July 21, 1998, and December 31, 1998.
Physically, the facility spans the entire width of Cheever
Avenue and is located only partially on the easements and rights
of way TGP had acquired by eminent domain and its agreement with
the club. It is built on the section of Cheever Avenue that
crosses lots 76 and 774 and a corner of the facility protrudes
onto land that is or was owned by Saugus. This placement of the
facility cuts off the portion of Cheever Avenue that fronts the
club's lots from the portion that connects to a public way.
There is no explanation in the record for the decision to build
3
Lots 77 and 76 of the 1910 plan were later combined and
adjusted to form lot 3 in the 1999 subdivision plan described
infra. While it appears from the record that the taking
occurred prior to the approval of the 1999 subdivision plan, the
exact order is immaterial.
4
Now lot 3, as described infra. See note 3, supra.
5
the facility where it is, nor of what contractual arrangements,
if any, TGP had with Brentwood Estates or Saugus.
In 1999, the planning board of Saugus (planning board)
approved a subdivision plan (1999 subdivision plan) submitted by
Brentwood Estates. Under this plan, the northern portion of
Cheever Avenue would be paved and the lots fronting it would be
developed. The paved portion of Cheever Ave would terminate in
a cul-de-sac just north of where the paper street borders the
club's three lots.
One of the lots created by the 1999 subdivision plan was
lot 3, formed out of lots 76 and 77, as described in the 1910
plan. As indicated above, this lot is situated just north of
the club's lot 78. The deeds in the chain of title conveying
lots 76 and 77 from Newhall to Brentwood Estates all refer to
these lots by their numbers on the 1910 plan. In 2006, eight
years after building its facility, TGP purchased lot 3 from
Brentwood Estates. TGP's deed provides that it is "[s]ubject to
and with the benefit of any and all easements . . . which are in
force and applicable."
Discussion. 1. Standard of review. We review a summary
judgment decision de novo. Marhefka v. Zoning Bd. of Appeals of
Sutton, 79 Mass. App. Ct. 515, 517 (2011). "Because the judge
does not engage in fact finding in ruling on cross motions for
summary judgment, we owe no deference to [her] assessment of the
6
record." Ibid. "The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Caron v. Horace Mann Ins. Co., 466 Mass. 218,
221 (2013) (quotation omitted).
2. Existence of the easement. The judge found that the
club possessed an easement by estoppel over the length of
Cheever Avenue. We agree.
"[W]hen a grantor conveys land bounded on a street or way,
he and those claiming under him are estopped to deny the
existence of such street or way, and the right thus acquired by
the grantee (an easement of way) is not only coextensive with
the land conveyed, but embraces the entire length of the way, as
it is then laid out or clearly indicated and prescribed." Lane
v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 437
(2006), quoting from Murphy v. Mart Realty of Brockton, Inc.,
348 Mass. 675, 677-678 (1965). "The estoppel of the grantor to
deny the existence of the way 'applies as well to a contemplated
way if clearly indicated as to an existing street.'" Casella v.
Sneierson, 325 Mass. 85, 90 (1949), quoting from Ralph v.
Clifford, 224 Mass. 58, 60 (1916). See Tufts v. Charlestown, 68
Mass. 271, 272-273 (1854); Murphy, supra at 678.
7
"This principle of estoppel 'seems to have become a rule of
law rather than a mere canon of construction.'" Murphy, supra,
quoting from Teal v. Jagielo, 327 Mass. 156, 158 (1951). "A way
created by estoppel, of course, 'is not a way by necessity, and
the right exists even if there be other ways either public or
private leading to the land.'" Casella, supra at 91, quoting
from New England Structural Co. v. Everett Distilling Co., 189
Mass. 145, 152 (1905).
TGP's reliance on Walter Kassuba Realty Corp. v. Akeson,
359 Mass. 725, 727 (1971), is misplaced. TGP argues that the
Akeson case stands for the proposition that an easement by
estoppel will extend only to portions of a way that are actually
constructed or staked out.
Akeson, however, cannot be read so broadly. It holds that
the question involved is whether the grantor intended to create
an easement by implication. Id. at 728. This case is closer to
Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48, 53-56
(1980), which distinguished Akeson, than to Akeson itself. As
here, the court in Searle was required "to determine the purpose
and effect of the reference to [a way] as a bounding way in [the
respondents'] deed." Id. at 56. The court explained that
"[b]ecause the [respondents'] parcel is now descriptively
bounded by [the way], there have been created by rights of
estoppel against their grantor and those claiming under that
8
grantor rights appurtenant to the combined parcel over [the
way]. See Gaw v. Hughes, 111 Mass. 296 (1873); Hill v. Taylor,
296 Mass. 107, 116 (1936); Casella v. Sneierson, 325 Mass. 85,
89 (1949); Murphy v. Mart Realty of Brockton, Inc., 348 Mass.
675, 677-678 (1965). The rights exist even if there are other
ways, public or private, leading to the land (New England
Structural Co. v. Everett Distilling Co., 189 Mass. 145, 152
[1905]), and the rights are coextensive with the entire length
of the way as actually laid out or as clearly indicated and
prescribed. Casella v. Sneierson, supra at 89-90. This remains
the case even if the way is not in existence, so long as it is
sufficiently designated on a plan. The rights also apply even
if the way under consideration is obstructed, overgrown, and
impassable. Murphy v. Mart Realty of Brockton, Inc., supra at
677-678." Id. at 54-55. The court concluded that the way was
adequately defined by the plan and that this fact distinguished
the case from Akeson: "The fact . . . that [the way] is clearly
defined takes the circumstances out of the rule of those cases
that limit the scope of this category of easement because the
ways in question are indefinite, imprecisely designated or not
otherwise described beyond the boundaries of the appurtenant
land. See Casella v. Sneierson, supra at 86-88; Walter Kassuba
Realty Corp. v. Akeson, supra at 725-726." Id. at 55.
9
The same is true here. Based on the undisputed facts in
the summary judgment record, the judge found, "The Newhall
deeds[5] describe the land comprising the club Lots as located on
Cheever Avenue. The Griswold deed[6] describes the land conveyed
(which now comprises Lot 3) as 'lots . . . shown on the plan
above referred to' — the Hawkes Plan.[7] Although the paper
street was not staked out, both the Newhall deeds and the
Griswold deed adequately designate the street by reference to
the Hawkes Plan. See Murphy, 348 Mass. at 678 (1965); Olson v.
Arruda, 328 Mass. 363, 365 (1952) (although no right of way was
expressly created in the locus, one was created by reference to
a plan showing the street at issue as a proposed street);
Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass.
350, 354 (1926) ('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.'). The Hawkes Plan clearly shows the club Lots
as bounding on the proposed road, Cheever Avenue."
5
These are the deeds for the three club lots that Newhall
sold in February and May of 1911. They referred to the club
lots as being lots 78-80 on the 1910 plan.
6
The deed for land sold by the executors of Newhall's
estate in 1921. The deed covered lots 74, 76, and 77 on the
1910 plan.
7
The judge referred to the 1910 plan as the "Hawkes Plan"
after its drafter.
10
TGP does not contest that the club's lots 78, 79, and 80
and TGP's lot 3 have a common grantor. The recorded deed and
plans clearly indicate that the club lots abut Cheever Avenue.
Though our decision does not turn on it, the negotiation of the
agreement with the club demonstrates TGP's actual knowledge of
the existence of Cheever Avenue and of the fact that it bounds
the club lots. Thus, TGP is estopped from contesting the club's
easement over Cheever Avenue.
3. Extinguishment of the easement. The judge concluded
that the club's easement was extinguished either by estoppel or
by frustration of purpose. On appeal, TGP abandons the first of
these arguments.8 Instead, it argues in its brief only that the
8
This was a wise concession. "Estoppel is based on the
policies of preventing the injustice and unjust enrichment that
would result if servitude beneficiaries were able to mislead a
burdened party into believing that the servitude will be
modified or terminated and then to obtain an injunction or
judgment for damages when the burdened party violates the
servitude . . . . To prevail on a claim of estoppel based on
silence, the defendants must prove that the silence of the owner
of the dominant estate communicated an intention to modify or
terminate the easement to the owner of the servient estate,
which the latter reasonably relied on to its substantial
detriment. Generally, silence reasonably may communicate such
an intention only where the owner of the dominant estate knows
that the owner of the servient estate intends to develop the
servient property in a manner that is fundamentally inconsistent
with the continued existence of the easement, and it is
reasonably foreseeable that the servient estate owner will
interpret the dominant estate owner's silence as assent and
proceed with the inconsistent development to his detriment."
Cater v. Bednarek, 462 Mass. 523, 531-532 (2012) (quoting from
and adopting Restatement [Third] of Property [Servitudes] § 7.6
[2000]; citation omitted).
11
planning board's approval of the 1999 subdivision plan
frustrated the purpose of the easement, and thereby extinguished
it.
a. Extinguishment by frustration of purpose. TGP argues
that the paving of a portion of Cheever Avenue has frustrated
the purpose of the club's easement. We disagree.
"When a right in the nature of an easement is incapable of
being exercised for the purpose for which it is created the
right is considered to be extinguished." Comeau v. Manzelli,
344 Mass. 375, 381 (1962), quoting from Delconte v. Salloum, 336
Mass. 184, 190 (1957). In a classic example from an early case,
an easement "of an open dock and common passageway for ships,
boats and other waterborne craft" was extinguished by
frustration of purpose where the city of Boston, acting pursuant
to statute, constructed a street across the dock and filled up
The club did not mislead TGP into violating its easement.
TGP constructed its natural gas facility in just five months.
At the time construction started, the club could only know that
TGP intended to build a facility that would be inconsistent with
the continued existence of a small part of the easement,
covering one-half of its width. The plan approved by the
Federal District Court in the eminent domain proceeding on July
21, 1998, reflected the same intention. There is no evidence in
the record that during the five months of construction the club
became aware that TGP had decided to build its facility in a
different place. The club's delay in asserting its rights after
the construction of the facility is irrelevant to this analysis,
as TGP has not pointed to any detrimental reliance on this
postconstruction silence.
12
the dock between the street and the shore, creating land.
Central Wharf & Wet Dock Corp. v. Proprietors of India Wharf,
123 Mass. 567, 569-570 (1878) (Gray, C.J.). Nothing of the kind
can be shown here. One manifest purpose of the easement was to
provide a right of way along Cheever Avenue out to a main
street. The approval of a plan to pave part of Cheever Avenue
does not frustrate this purpose of the easement over the portion
beyond the paving. Plainly, paving one part of a paper street
does not make it impossible to pave more of it later.
b. Extinguishment by approval of the 1999 subdivision
plan. At oral argument, TGP advanced the distinct argument that
the planning board's approval of the 1999 subdivision plan,
which did not reflect the fact that Cheever Avenue continued as
a paper road past the cul-de-sac, directly extinguished the
club's easement, regardless of frustration of purpose. Although
this issue was waived, were we to reach it, we would disagree.
First, a municipality's decision to pave part of a paper
street does not extinguish private easement rights in the rest
of the paper street. See Farnsworth v. Taylor, 75 Mass. 162,
168 (1857) ("The rights of the purchasers of house lots bounded
by the streets laid out on this plan are something more than a
dedication to the public, to be accepted or rejected at the
discretion of the public authorities"). Thus, the planning
board's approval of the 1999 subdivision plan did not, by
13
providing for paving part of Cheever Avenue, extinguish any
easement rights over the rest of it.
Moreover, the planning board did not have the power to
extinguish the club's easement by approving the 1999 subdivision
plan. The Brentwood Estates subdivision plan was submitted and
approved under the subdivision control law. See G. L. c. 41,
§ 81K. A planning board's approval of a subdivision plan under
the subdivision control law cannot act as a taking, see G. L.
c. 41, § 81DD, inserted by St. 1953, c. 674, § 7 ("The
subdivision control law . . . shall not authorize the taking of
land"), which would be the effect of the extinguishment of the
club's easement. See Darman v. Dunderdale, 362 Mass. 633, 641
(1972). See also United States v. Certain Lands at Great Neck,
in County of Nassau, State of N.Y., 49 F. Supp. 265, 266
(E.D.N.Y. 1943); Tax Lien Co. of N.Y. v. Schultze, 213 N.Y. 9,
12 (1914); Aust v. Marcello, 112 R.I. 381, 386 (1973).
Finally, the 1999 subdivision plan did not relate at all to
the club lots. Therefore it is not in the chain of title to
those lots. We do not think TPG's novel theory that easements
may be extinguished in this way is consistent with the other
rules relating to real property in a notice jurisdiction such as
ours. See Emmons v. White, 58 Mass. App. Ct. 54, 63-68 (2003).
4. Injunctive relief. The judge ruled that the club was
not entitled to injunctive relief for two reasons. First, the
14
judge ruled that the club's easement had been extinguished.
Second, the judge ruled that the club had failed to enforce its
easement rights in a timely manner. Since we hold that the
club's easement was not extinguished, we must consider whether
the club's plea for injunctive relief is barred by the doctrine
of laches. We conclude that it is not.
"Generally, laches is a question of fact, Tzitzon Realty
Co. v. Mustonen, 352 Mass. 648, 650 (1967), and a finding of
fact by a Superior Court judge will not be overturned unless
clearly erroneous." West Broadway Task Force v. Boston Hous.
Authy., 414 Mass. 394, 400 (1993). However, the correct legal
definition of laches and the proper factors for a judge to
consider when applying it are issues of law, which we review de
novo. U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 427
(2014).
"The doctrine of laches operates in equity as an
affirmative defense against a plaintiff whose unreasonable delay
in bringing a claim results in some injury or prejudice to the
defendant. Therefore, the [defendant] shoulders the burden of
proving that the [plaintiff] waited for an unreasonably long
period before asserting its rights . . . and that its delay
induced a detrimental change in the [defendant's] position or
injuriously affected the [defendant's] legal rights" (emphasis
in original). West Broadway Task Force, supra at 400 (quotation
15
omitted). "Laches is not mere delay but delay that works
disadvantage to another." Colony of Wellfleet, Inc. v. Harris,
71 Mass. App. Ct. 522, 531 (2008), quoting from Moseley v.
Briggs Realty Co., 320 Mass. 278, 283 (1946).
The judge considered only the first element of laches,
concluding that the club was not entitled to injunctive relief
"because of its silence and failure to enforce its easement
rights in a timely manner." However, unless the unreasonable
portion of the club's delay in bringing suit induced a
detrimental change in TGP's position or injuriously affected
TGP's legal rights, laches does not apply.
Considering all the elements of laches, TGP was not
entitled to summary judgment on this ground, as there is nothing
in the record that could support a finding of prejudice. TGP's
appellate brief does not explicitly identify a detrimental
change in the its position or an injury to its legal rights that
it claims resulted from the club's unreasonable delay. Two
possible sources of prejudice, the cost of building the natural
gas facility and the cost of maintaining it, are not the result
of any unreasonable delay by the club. TGP constructed the
facility in five months, at a time when the club had every
reason to believe that the facility would block only half of
Cheever Avenue. Thereafter, TGP maintained the facility as a
necessary part of its business operations.
16
TGP also argues that an injunction would be "inequitable
. . . because of the public import of the natural gas facility"
and because of what it calls TGP's "bona fide claim of right"
based on its possession of the FERC order. But of course, TGP
did not use the eminent domain power granted in that order to
obtain the right to build its facility in such a way that it
blocks all of Cheever Avenue.
5. Statute of limitations. Finally the statute of
limitations is no bar to this action. Since the club continues
to hold an easement over Cheever Avenue, the presence of TGP's
facility blocking that easement constitutes a continuing
trespass. See Porter v. Clarendon Natl. Ins. Co., 76 Mass. App.
Ct. 655, 659 (2010) ("When a trespass is caused by the erection
of a permanent structure, that trespass commences on a date
certain, and the trespass continues as long as the offending
structure remains"). The failure to remove the structure
"constitutes a continuing trespass for the entire time during
which the thing is wrongfully on the land." Restatement
(Second) of Torts § 161 comment b, at 289 (1965).9
9
TGP has not argued that the requirements for adverse
possession have been met. See Totman v. Malloy, 431 Mass. 143,
145 (2000) ("A party claiming title to land through adverse
possession must establish actual, open, exclusive, and
nonpermissive use for a continuous period of twenty years").
17
6. Conclusion. The judgment is reversed and the case is
remanded to the Superior Court for entry of judgment in favor of
the club and a determination of the proper remedy.
So ordered.