A. Preliminary Statement
Plaintiffs Barry and Susan Tatelman respectfully submit this memorandum in support of their motion, pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure, for summary judgment seeking entry of a declaratory judgment recognizing a prescriptive easement or a servitude by estoppel in the contested strip of land. Recognition of either estate would also dispose of the defendants' counterclaim for trespass and encroachment, so the plaintiff seeks summary judgment on Count One of the counterclaim.
B. Issues Presented
1. Whether the plaintiffs are entitled as a matter of law to a declaratory judgment recognizing a prescriptive easement where the undisputed facts establish that they used and maintained the surface of the contested strip of land continuously and without interruption for more than twenty years, that they did so openly and notoriously, and that their use of the land was adverse to the interests of the title holders.
2. Whether, assuming this court concludes that the plaintiffs used the contested portion of the land with the implied or express permission of the owners, the plaintiffs are entitled to a declaratory judgment creating a servitude by estoppel in the land.
C. Statement of Relevant Facts
1. In July of 1976, Jocelyn and James Barrett purchased the property known as 6 Smokey Hill Road, Wayland, Massachusetts. Behind the lot was a lot at 42 Wayland Hill Road. The two lots abut one another along common property lines. A rectangular portion of the lot at 6 Smokey Hill Road extends 186 feet along the side of the lot at 42 Wayland Hill Road (hereinafter referred to as the “contested portion of the land”). A description of that strip of land is attached hereto as Exhibits “C” and “D”. [Jocelyn Barrett Deposition at 10-16].
2. In constructing the Barrett's house, the contractor placed the septic system near the house. The house and the septic system were at the top of a ledge, and the property sloped down from there. The contested portion of the land was located well below the portion of the lot where the house was located. There was a path leading from the top of the lot to the contested portion of the land, but it had become overgrown over the years. [Jocelyn Barrett Deposition at 17-20, 31-33].
3. In constructing the Barretts' house, the contractor located the leaching field for the septic system in the contested portion of the land. The contractor explained to the Barretts that the surface area over the leaching field would be used as a lawn for the neighboring house. [Jocelyn Barrett Deposition at 20-21, 24, 34-35].
4. In 1977 or 1978, an elderly couple, the Matyis, purchased the property at 42 Wayland Hill Road. They constructed a house on that lot. In the course of landscaping their lot, they planted and maintained a lawn and some shrubbery in the contested portion of the land and used it as part of the lot. They did not seek the Barrett's permission or approval for the improvements to the contested portion of the land. [Jocelyn Barrett Deposition at 26-27, 34-37].
5. On or about September 15, 1980, the plaintiffs Barry and Susan Tatelman purchased the property at 42 Wayland Hill Road from the Matyis. A copy of the plaintiffs' deed was attached to their verified complaint and is attached hereto as Exhibit “A”. [Jocelyn Barrett Deposition at 27-28; Barry Tatelman Deposition at 7].
6. Shortly after they purchased the property, the plaintiffs installed additional plantings. Those plantings included a row of hemlock trees along Smokey Hill Road to screen the property from the street, as well as an island with a tree and shrubbery, and some additional bushes. The plaintiffs also installed an irrigation system on the contested portion of the land. The plaintiffs have borne the sole expense and have had the exclusive discretion and authority for landscaping and maintaining the contested portion of land without interruption from the time that they purchased the house. The plaintiffs and their children also used the lawn for general recreational purposes during that time. In fact, the plaintiffs believed that they owned the property and treated it as such. [Jocelyn Barrett Deposition at 26-27, 34-38; Barry Tatelman Deposition at 26-28, 35-39].
7. On or about May 28, 1996, the defendants Thomas and Susan Manter purchased the property at 6 Smokey Hill Road, from the Barretts. A copy of the defendants' deed was attached to the plaintiffs' verified complaint and is attached hereto as Exhibit “B”. [Amended Complaint for Declaratory Judgment Par. 6; Answer and Counterclaim Par. 6].
8. Since the plaintiffs purchased their property, they have never sought the permission, consent or approval from either the Manters or the Barretts to use, maintain or enjoy the contested portion of land. [Amended Complaint for Declaratory Judgment Par. 9; Barry Tatelman Deposition at 24-26, 39-40].
9. Since the plaintiffs purchased their property, neither the Manters nor the Barretts have ever protested or failed to recognize the plaintiffs' unfettered authority to use, maintain, or enjoy the contested portion of land. [Amended Complaint for Declaratory Judgment Par. 10; Jocelyn Barrett Deposition at 28; Barry Tatelman Deposition at 26, 39-40].
10. Since the plaintiffs purchased their property, they and their family have enjoyed, used and maintained in a continuous, uninterrupted, open, notorious and adverse manner the contested portion of land consistent with its character and nature. [Amended Complaint for Declaratory Judgment Par. 13; Barry Tatelman Deposition at 35-39].
D. Statement of Legal Elements
1, Summary judgment is appropriate if only a question of law is involved. Ng Brothers Const., Inc. v. Cranney, 436 Mass. 638, 633-634 (2002).; Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983).
2. The long-continued use of another's land may give rise to an easement by prescription. Massachusetts Practice Series 14b-Summary of Basic Law, §17.75. See Totman v. Malloy, 431 Mass. 143, 146-147 (2000); Kendall v. Selvaggio, 413 Mass. 619, 623-624 (1992); Ryan v. Stavros, 348 Mass. 251, 263 (1964).
3. A party seeking to establish an easement by prescription in the land of another must show (1) the continuous and uninterrupted, (2) open and notorious, (3) adverse use of some portion of the land for a period of not less than twenty years. Id. See Totman v. Malloy, 431 Mass. at 146-147; Kendall v. Selvaggio, 413 Mass. at 623-624; Ryan v. Stavros, 348 Mass. at 263; Daley v. Town of Swampscott, 11 Mass. App. Ct. 822, 827 (1981). Arthur L. Eno, Jr. & William V. Hovey, Real Estate Law, § 8.10, at 178 (1995).
4. In determining whether the claimant's use of the property is adverse, the proper inquiry focuses on the actual use of the property rather than on the intent of the parties. Totman v. Malloy, 431 Mass. at 146; Kendall v. Selvaggio, 413 Mass. at 623-624.
5. An owner's acquiescence or tacit agreement to a claimant's use of land does not preclude the creation of an easement by prescription. Massachusetts Practice Series 14b-Summary of Basic Law, §17.75. See Ryan v. Stavros, 348 Mass. at 263.
6. The rights of the title holder “must at least be asserted to the other party by some unequivocal, 'overt act, which, if the easement existed, would be a cause of action.'” Ryan v. Stavros, 348 Mass. at 264, quoting Brayden v. New York, N.H. & H. R.R., 172 Mass. 225 (1898).
7. Where a claimant uses the property of another with implied or express permission of the owner, a court can imply a servitude by estoppel when: 1) the owner of the servient estate “permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked,” 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude. Friends of the Black Forest Regional Park, Inc. v. Board of County Com'rs of County of El Paso, --- P.3d ----, ----, 2003 WL 1923823 (Colo.App. 2003), quoting Restatement (Third) of Property: Servitudes 2.10 (1998). See Uliasz v. Gillette, 357 Mass. 96, 102-103 (1970); Silverleib v. Hebshie, 33 Mass. App. Ct. 911, 912 (1992).
E. Summary Judgment Standards
“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Brothers Const., Inc. v. Cranney, 436 Mass. 638, 633-634 (2002). See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 283 (1997); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). A motion for summary judgment should be allowed “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56(c). See Cassesso v. Commissioner of Correction, 390 Mass. at 422. While the moving party bears the initial burden of showing the absence of adequate evidence supporting the nonmoving party's theories, once the moving party has made such a showing, the nonmoving party must come forward with facts that show a genuine issue for trial. See Ng Brothers Const., Inc. v. Cranney, 436 Mass. at 634; Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir. 1997); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st Cir. 1993). “[N]either conclusory allegations [nor] improbable inferences” are sufficient to defeat summary judgment. J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996) (internal quotation marks omitted). See Madsen v. Erwin, 395 Mass. 715, 721 (1985); Davidson v. General Motors Corp., 57 Mass. App. Ct. 637, 638 (2003). Rather, to withstand a properly supported motion for summary judgment, the opposing party must present enough competent evidence to enable a fact finder to decide in its favor on the disputed claims. Haverty v. Commissioner of Correction, 437 Mass. 737, 754 (2002); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. at 648 (“An adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment”); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) (affidavit must set forth specific facts showing genuine issue for trial; bare assertions and conclusions not enough to withstand well-pleaded motion for summary judgment). See Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Evidence that is “merely colorable or is not significantly probative” cannot deter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-250 (citations omitted); Carroll v. Xerox Corp., 294 F.3d 231, 236-237 (1st Cir. 2002). See also McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 91 (1st Cir. 2002). Finally, while the focus of the inquiry in a typical case is thus the sufficiency of the facts offered in support of a party's claims, “[a] complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Argument
F. The Plaintiffs Are Entitled As A Matter Of Law To A Declaratory Judgment Recognizing A Prescriptive Easement Where The Undisputed Facts Establish That They Used And Maintained The Surface Of The Contested Portion Of The Land Continuously And Without Interruption For More Than Twenty Years, That They Did So Openly And Notoriously, And That Their Use Of The Land Was Adverse To The Interests Of The Title Holders
The undisputed facts in this case establish that the plaintiffs used and maintained the contested portion of the land continuously and without interruption for more than twenty years. Such use was open and notorious and was adverse to the interests of the Manters and the previous owners. The parcel did, of course, function as a leaching field for the septic system for 6 Smokey Hill Road. The plaintiff's use of the property therefore was not exclusive and would not support a claim of adverse possession. However, such use clearly created an easement by prescription in the surface of the land. Where the relevant facts are essentially uncontested, the plaintiffs are entitled as a matter of law to a declaratory judgment recognizing a prescriptive easement in the contested portion of the land.
The long-continued use of another's land may give rise to an easement by prescription. Massachusetts Practice Series 14b-Summary of Basic Law, §17.75. See Totman v. Malloy, 431 Mass. 143, 146-147 (2000); Kendall v. Selvaggio, 413 Mass. 619, 623-624 (1992); Ryan v. Stavros, 348 Mass. 251, 263 (1964). The rule for creating an easement by prescription is analogous to the doctrine of adverse possession, except that to acquire a prescriptive easement, there is no requirement of exclusive possession. Id. Thus, a party seeking to establish an easement by prescription in the land of another must show (1) the continuous and uninterrupted, (2) open and notorious, (3) adverse use of some portion of the land for a period of not less than twenty years. Id. See Totman v. Malloy, 431 Mass. at 146-147; Kendall v. Selvaggio, 413 Mass. at 623-624; Ryan v. Stavros, 348 Mass. at 263; Daley v. Town of Swampscott, 11 Mass. App. Ct. 822, 827 (1981). Arthur L. Eno, Jr. & William V. Hovey, Real Estate Law, § 8.10, at 178 (1995). The extent of the easement is coextensive with the claimant's use of the property during the relevant time period. Id.
In this case, the undisputed evidence clearly establishes that the plaintiffs' use of the property was continuous and uninterrupted for a period of more than twenty years. The Matyis, who owned the property at 42 Wayland Hill Road prior to the plaintiffs, planted and maintained a lawn and some shrubbery in 1977 or 1978. The plaintiffs installed additional plantings when they purchased the house in September of 1980. They maintained the lawn and plantings without interruption from the time that they purchased the house. The plaintiffs and their children also used the lawn for general recreational purposes during that time. In fact, the plaintiffs believed that they owned the property and treated it as such. [Jocelyn Barrett Deposition at 26-27, 34-38; Barry Tatelman Deposition at 26-28, 35-39].
The plaintiffs' use of the strip of land in question clearly was open and notorious. The plantings and landscaping were readily visible, and indeed, Jocelyn Barrett was fully aware that the plaintiffs were using the surface of the property as part of their yard. See LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488, 491 (1938).
Moreover, the plaintiffs' use of that property was adverse. In determining whether the claimant's use of the property is adverse, the proper inquiry focuses on the actual use of the property. Totman v. Malloy, 431 Mass. at 146; Kendall v. Selvaggio, 413 Mass. at 623-624. “Thus, mental attitude is irrelevant where acts import an adverse character to the use of the land.” Kendall v. Selvaggio, 413 Mass. at 624. More specifically, “adverseness” is established by demonstrating that the claimant's possession of the property was not permissive. “'The great majority of the cases establish convincingly that the alleged requirements of claim of title and of hostility of possession mean only that the possessor must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owner and therefore in actual hostility to him irrespective of the possessor's actual state of mind or intent.'” Kendall v. Selvaggio, 413 Mass. at 624, quoting Ottavia v. Savarese, 338 Mass. 330, 333 (1959), and American Law of Property, § 15.4, at 776-777 (1952). See Totman v. Malloy, 431 Mass. at 146. Indeed, “where the use of the land is actual, open, and exclusive for a period of twenty years, the nonpermissiveness of the use may be inferred.” Totman v. Malloy, 431 Mass. at 146.
In this case, the plaintiffs' use of the property certainly was inconsistent with the rights of the Barretts and the Manters. By landscaping the disputed parcel-and especially by planting a large number of trees to screen it from the road and enclose it as part of their yard-the plaintiffs took affirmative steps to exclude the Barretts, the Manters and all others from the property. Id.; Kendall v. Selvaggio, 413 Mass. at 624.
The fact that the Barretts and the Manters voiced no objection to the plaintiffs' use of the property does not render their use of the property permissive. An owner's acquiescence or tacit agreement to a claimant's use of land does not preclude the creation of an easement by prescription. Massachusetts Practice Series 14b-Summary of Basic Law, §17.75. See Ryan v. Stavros, 348 Mass. at 263. Compare Totman v. Malloy, 431 Mass. at 145-146 (no presumption exists that a close family membership between claimants to property renders prior use of that property permissive). Neither the Barretts nor the Manters gave their express permission for the plaintiffs' use of the parcel or took any action to convert the adverse use into a permissive use. Kendall v. Selvaggio, 413 Mass. at 623. The rights of the title holder “must at least be asserted to the other party by some unequivocal, 'overt act, which, if the easement existed, would be a cause of action.'” Ryan v. Stavros, 348 Mass. at 264, quoting Brayden v. New York, N.H. & H. R.R., 172 Mass. 225 (1898). Where, as here, the Barretts and the Manters sat on rights-even where all parties were on friendly terms for much of the relevant time period-the plaintiffs' use of the property cannot be considered permissive.
In these circumstances, the plaintiffs are entitled as a matter of law to a declaratory judgment recognizing an easement by prescription in the contested strip of land.
G. Assuming This Court Concludes That The Plaintiffs Used The Contested Portion Of The Land With The Implied Or Express Permission Of The Owners, The Plaintiffs Are Entitled To A Declaratory Judgment Creating A Servitude By Estoppel In The Contested Portion Of The Land
Should this court conclude that the plaintiffs used the contested portion of the land with the implied or express permission of the owners, and that their use of the property was therefore not adverse so as to create an easement by prescription, the plaintiffs are nevertheless entitled to a declaratory judgment creating an estate in the property. Such permissive use created an equitable servitude in the contested portion of the land. Accordingly, the Manters are estopped from depriving the plaintiffs and their successors in interest in their continued enjoyment of the contested portion of the land consistent with their use of the land since September 1980.
A court can imply a servitude by estoppel when:
1) [T]he owner of the servient estate “permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked,” 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude.
Friends of the Black Forest Regional Park, Inc. v. Board of County Com'rs of County of El Paso, --- P.3d ----, ----, 2003 WL 1923823 (Colo.App. 2003), quoting Restatement (Third) of Property: Servitudes 2.10 (1998). See Uliasz v. Gillette, 357 Mass. 96, 102-103 (1970); Silverleib v. Hebshie, 33 Mass. App. Ct. 911, 912 (1992). See also Lobato v. Taylor, --- P.3d ----, ----, 2002 WL 1360432 (Colo. 2002); Concha Chemical Pipeline v. Schwing, 835 So.2d 543, 547 (La.App. 1 Cir., 2002); Gulf Park Water Co., Inc. v. First Ocean Springs Development Co., 530 So.2d 1325, 1332 (Miss. 1988); Shalimar Ass'n v. D.O.C. Enterprises, Ltd., 142 Ariz. 36, 43, 688 P.2d 682, 689 (1984); Remilong v. Crolla, 576 P.2d 461, 464-465 (Wyo. 1978); Foldeak v. Incerto, 6 Conn.Cir.Ct. 416, 422-423, 274 A.2d 724, 727-728 (1970).
Although fully aware that she owned the strip of land at issue, Jocelyn Barrett testified that she allowed the plaintiffs and their predecessors to use and improve the property during the time that she owned it. She explained that the developer had told her that the leaching field for her septic system would be in that lower portion of her property and that the surface area would be used as a lawn for the neighboring house. She described this arrangement as a gentleman's agreement among the neighbors and the developer, but it was one that she never discussed with any of the neighbors. The Matyis, who owned the house before the plaintiffs, put in a lawn and some landscaping. The Matyis never asked permission to maintain or improve this area. They did what they wanted to do. Jocelyn assumed that the developer had explained to them how the arrangement would work. When the plaintiffs moved in, they continued to maintain and improve the area, to which she never objected. In fact, when she had a Title V inspection of her septic system in 1995, she stated that she left a phone message indicating that workmen would be inspecting her leaching field and that she would pay for any damage to their landscaping. [Jocelyn Barrett Deposition at 34-39]. In his deposition, Barry Tatelman confirmed that neither the Barretts nor the Manters ever discussed with him or objected to his use of the property or to the improvements thereto. [Barry Tatelman Deposition at 24-26]. The defendants have produced no evidence to the contrary. In addition to the planting of a lawn, the improvements to the property included the installation of a sprinkler system, the planting of various shrubs and plants, the planting of a large number of hemlock trees, edging and mulching the area. A professional landscaper did these improvements and also handled the maintenance of the property. [Barry Tatelman Deposition at 26-27, 34-39]. These improvements should have been, and in fact, were obvious to both the Barretts and the Manters.
In view of the permanence and substantial cost of these improvements, the silence of both Barrett and the Manters during the more than twenty years that the plaintiffs lived at the property would have created a reasonable expectation that the permission would not be revoked. The plaintiffs did in fact substantially change their position in reasonable reliance on that belief, spending many thousands of dollars improving and maintaining the property. See Silverleib v. Hebshie, 33 Mass. App. Ct. at 912.
Finally, the undisputed facts establish that injustice can only be avoided by establishing a servitude. Not only would the plaintiffs suffer the loss of the funds invested in the improvements, but the marketability of the house and the use and enjoyment of future owners would be severely impaired by denial of the plaintiffs' request. Where the key facts, again, are undisputed, the plaintiffs are entitled to a declaratory judgment creating a servitude by estoppel.
H. Conclusion
Where the facts the facts, viewed in the light most favorable to the defendants, require as a matter of law the recognition of either an easement by prescription or an equitable servitude, the plaintiffs are entitled to entry of summary judgment on their amended complaint for declaratory judgment. The defendants' counterclaim, to the extent that it alleges trespass and encroachment, must fail, since the existence of either an easement by prescription or an equitable servitude defeats this claim against the plaintiffs.
Respectfully submitted,
Barry E. Tatelman
Susan Tatelman
By their attorney
Robert E. Fierman
B.B.O. # 164780
678 Massachusetts Avenue
Suite 600
Cambridge, MA 02139
(617) 354-8500