JEAN A. WOJCIK & Another v. JAMES LOVETT & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-949

JEAN A. WOJCIK & another1

vs.

JAMES LOVETT & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this dispute between neighboring owners of lakefront

property in East Brookfield, Jean and David Wojcik (the Wojciks)

claim that James and Lee Ann Lovett (the Lovetts) trespassed

onto their land by using and expanding a right of way that leads

to the Lovett property. Following trial, the Land Court judge

declared that the Lovetts have an implied easement in the right

of way and, accordingly, no trespass occurred. We affirm.

Background. There are four neighboring properties that are

relevant to this dispute: the Wojcik property, Lovett property,

Rueli property, and Jennette property. The Wojcik property lies

1 David A. Wojcik.

2 Lee Ann Lovett.
to the south of the three other properties and is bordered on

the west by Lake Lashaway. The Lovett property lies to the

northwest of the Wojcik property and is also bordered on the

west by Lake Lashaway. To the northeast of the Wojcik property

is the Rueli property, and the disputed right of way in this

case exists on the boundary between those two properties.

Directly north of the Wojcik property is the Jennette property,

which has the Lovett property to its west and the Rueli property

to its east.

Prior to 1912, all of the properties relevant to this

dispute were owned by Milo Drake. There was an easement

agreement in 1915 between Drake and subsequent property owners

in the relevant area that was recorded in the registry of deeds

and granted an access route to a public highway. The trial

judge found that the disputed right of way was included in this

easement agreement. The disputed right of way is fifteen-feet

wide; it runs on the boundary between the Wojcik and Rueli

properties, with half (i.e., 7.5 feet) of the right of way

located on each property, and it connects to the Lovett

property. The disputed right of way is one of two separate

rights of way that make up Bennett Street.

From 1937 until 1966, a portion of the Wojcik property (on

which half of the disputed right of way was located) and the

2
entire Lovett property were held in common ownership by various

members of the Dexter family. In 1966, Ida Dexter conveyed a

portion of the Wojcik property to her son Henry and his wife

Dorothy for less than 100 dollars. This deed separated the

Lovett property from the northern Wojcik property that abutted

the Rueli property, but did not contain express language

reserving an easement in the 7.5 feet of Bennett Street that

fell on the property she was conveying and instead quoted the

language of the deed by which Ida had acquired the land:

"[s]ubject to the rights of others to use the common right of

way and to use Drake's Lane as a road." Jean Wojcik acquired

title to the current Wojcik property in 1999, and Lee Ann Lovett

acquired title to the current Lovett property in 2005.

Before 2018, the disputed portion of Bennett Street had

existed as an eight-to-ten-foot-wide dirt road, and the Lovetts

had used it for access to their property without objection from

the Wojciks. In February 2018, the Lovetts began construction

on their house, renovating it from a summer home to a year-round

home. In connection with this construction project, the

Lovetts' contractor performed excavation on Bennett Street in

late 2018, without seeking the Wojciks' permission. The

contractor widened the disputed right of way, filled the dirt

surface with gravel, and increased its width to approximately

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twelve to fifteen feet. In the course of widening the roadway,

a strip outside the limits of the disputed right of way, no more

than four feet wide, was disturbed, although the judge noted

that at a pre-trial view, the width of graveled surface was not

noticeably wider than the 15-foot right of way in any location.

In 2019, the Wojciks commenced this action against the

Lovetts seeking injunctive relief based on a claim of trespass

and for conversion, and they also sought a declaration that the

Lovetts have no rights over the 7.5 feet of Bennett Street

located on their property. Cross motions for summary judgment

were heard and denied. The judge viewed the disputed right of

way and surrounding properties on September 12, 2022, and held a

trial the following day. One title expert for each party

testified at the trial, and forty-seven exhibits were admitted.

Following trial, the judge ruled that the Lovett property had

the benefit of an implied easement over the disputed portion of

Bennett Street (including the 7.5-foot half on the Wojcik

property), and that no trespass was caused by the Lovetts'

excavation work. He entered a declaration to that effect,

dismissed the claims for injunctive relief and conversion (the

conversion claim for lack of jurisdiction), and dismissed one of

the plaintiffs for lack of standing. The Wojciks appealed.

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Standard of review. Upon appeal, we accept the judge's

findings of fact unless they are "clearly erroneous" . . . and

"do not review questions of fact if any reasonable view of the

evidence and the rational inferences to be drawn therefrom

support the judge's findings." Martin v. Simmons Properties,

LLC, 467 Mass. 1, 8 (2014), quoting Millennium Equity Holdings,

LLC, v. Mahlowitz, 456 Mass. 627, 636-637 (2010). "We uphold

the findings of a judge who saw and heard the witnesses unless

we are of the 'definite and firm conviction that a mistake' has

been made." Martin, supra, quoting Millennium Equity Holdings,

456 Mass. at 637. See Bernier v. Fredette, 85 Mass. App. Ct.

265, 269 (2014), quoting Demoulas v. Demoulas Super Mkts., Inc.,

424 Mass. 501, 510 (1997) ("So long as the judge's account is

plausible in the light of the entire record, an appellate court

should decline to reverse it."). We review the judge's

conclusions of law de novo. Martin, supra at 10, citing Trace

Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346,

351 (2011).

Discussion. Because no trespass can result from the

Lovetts' usage of Bennett Street or placement of gravel thereon

if they held an easement over the portion at issue in this case,

see Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981), the key

question is whether the Lovetts benefit from an easement by

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implication over that portion of Bennett Street which falls on

the Wojciks' land.3 The judge concluded that they do because the

presumed intent of the Lovetts' predecessors in title was to

reserve their rights to continue using the entire street in that

area, and use of the right of way was reasonably necessary. We

agree.

The party "claiming the benefit of an easement bears the

burden of proving the existence of that easement on the servient

estate." Hickey v. Pathways Ass'n, Inc., 472 Mass. 735, 753-754

(2015). Easements by implication4 are "created when land under

single ownership is severed and the easement is reasonably

necessary for the enjoyment of one of the parcels."5 Post v.

3 Although the judge did find that a narrow strip of land on
the Wojciks' property was disturbed when the right of way was
widened, he also found that the disturbance was transitory and
there was no trespass existing or persisting at the time of
trial. Nor did the judge, having viewed the properties, find
that a rainstorm that caused some gravel to shift outside the
easement constituted a trespass. "To the extent the judge's
factual findings were based in part on his view of the parties'
. . . parcels, there was no error." Talmo v. Zoning Bd. of
Appeals of Framingham, 93 Mass. App. Ct. 626, 629 n.5 (2018).
We discern no clear error in the judge's conclusions.

4 Easements by implication are also known as implied
easements. See Lavoie v. McRae, 102 Mass. App. Ct. 14, 19
(2022).

5 When a party is able to demonstrate that an implied
easement is absolutely necessary for the use and enjoyment of
his or her property, where, for example, the parcel is
landlocked, courts recognize an "easement by necessity," a type
of implied easement. Lavoie, 102 Mass. App. Ct. at 20 & n. 15.

6
McHugh, 76 Mass. App. Ct. 200, 205 (2010), quoting Silverlieb v.

Hebshie, 33 Mass. App. Ct. 911, 912-913 (1992). "Although mere

'convenience' -- even 'great convenience' -- does not rise to

the level of reasonable necessity, something significantly short

of 'absolute physical necessity' can suffice" (citation

omitted). Lavoie v. McRae, 102 Mass. App. Ct. 14, 21 (2022).

Whether an easement by implication exists is a matter of the

presumed intent of the parties, which 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" (citation omitted). Boudreau v.

Coleman, 29 Mass. App. Ct. 621, 629 (1990). "The ultimate

touchstone for whether an implied easement should be recognized

is the presumed intent of the parties based on all the

circumstances, not a mechanistic application of the rules of

thumb." Lavoie, supra at 22.

Before we consider whether an implied easement existed, we

first review the history of the disputed right of way, which

bears on the intent of the Lovetts' predecessors. The judge

"Where absolute physical necessity cannot be shown, the
propounding party must present other evidence that demonstrates
that the parties intended to create such an easement at the time
ownership was severed, even though no such easement was
recorded." Id. at 20-21.

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determined that the disputed right of way was created by the

1915 easement agreement, and that 1920 deeds from the heirs of

Drake to the Lovetts' predecessors gave the Lovetts an easement

over the entirety of the disputed portion of Bennett Street.

Noting that none of the documents prior to the 1920 deeds

describe the location of the disputed right of way with

precision, the Wojciks assert that the right of way referenced

in those documents was not the disputed right of way, but

instead, the Jennette-Rueli right of way, which runs between the

Jennette and Rueli properties. In his decision, the judge used

reference points from the time period, including a cemetery, a

development, and existing properties, to identify where the

easement was located. We find the judge's decision reasonable

and based on rational inferences that carefully considered the

deeds submitted into evidence and the expert testimony.

Accordingly, we agree with his conclusion that "the recorded

documents in the record show that Drake (and his heirs), as the

original owner of all the properties subdivided in his

neighborhood, and Upham, as the successor to Drake for many of

these properties, had a plan to grant and preserve access to all

the owners on both sides of the continuous right of way to the

public highway as the land was subdivided and conveyed out," and

that "rights on the disputed [right of way] were granted to

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. . . the Lovetts' predecessors in title by deeds from the heirs

of Drake dated October 16, 1920."

We turn to whether the easement was extinguished by common

ownership. We agree with the judge that the Lovetts' easement

over the 7.5 feet of Bennett Street running on the Wojcik

property was extinguished when a portion of the Wojcik property

and the Lovett property were first held in common ownership in

1937. That is because a property owner cannot have an easement

over his or her own estate. See Busalacchi v. McCabe, 71 Mass.

App. Ct. 493, 497-498 (2008).

Common ownership of the disputed 7.5 feet of Bennett

Street was severed when Ida Dexter conveyed her ownership over

the part of the Wojcik property containing the street to her son

and his wife in 1966 for "less than One Hundred ($100.00)

Dollars." The parties agree that this conveyance did not

expressly reserve rights for the Lovett property over the 7.5

feet of Bennett Street, and instead stated that the conveyance

was "[s]ubject to the rights of others to use the common right

of way and to use Drake's Lane as a road."6 Nevertheless, the

judge concluded that Ida Dexter's remaining land, the Lovett

property, benefitted from an implied easement over the 7.5 feet

6 Neither party argues that the language in the deed is
sufficient to revive Ida's right of way for the benefit of the
Lovett property and, we accordingly do not consider the issue.

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of Bennett Street that she conveyed to her son and his wife,

because it was her presumed intent for this to happen and the

easement was reasonably necessary. The Wojciks challenge this

conclusion.

We first address the presumed intent of Ida Dexter. When

the Wojcik property and the Lovett property were held in common

ownership, only the easement rights running with those

properties, to one-half of the disputed portion of Bennett

Street, were extinguished. The express right of those

properties' owner (Ida) to use the other one-half of Bennett

Street falling on the Rueli property, or the rest of the street

as described in the easement agreement, was not affected. This

is because what is now the Rueli property was not a part of the

common ownership, and existing easement rights held by the

Dexters persisted. That means that in 1966, when common

ownership was severed, Ida Dexter retained for the Lovett

property an easement over at least the 7.5 feet of Bennett

Street that falls on the Rueli property -- that portion of the

easement did not need to be revived. Given these facts, we

agree with the trial judge that it would have been

"inconceivable" for Ida Dexter to have intended to convey part

of the Wojcik property to her son and his wife for a nominal

amount of money and, in doing so, restrict herself from using

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the one-half of Bennett Street that she previously owned in fee.

Rather, as the judge concluded, Ida Dexter's presumed intent was

to maintain the status quo by reserving her ability to traverse

Bennett Street in its entirety.

We next address whether the easement was reasonably

necessary. The Wojciks argue that the disputed right of way was

not reasonably necessary for Ida Dexter at the time common

ownership was severed, and therefore an implied easement cannot

be found.7 They point to the Jennette-Rueli right of way and the

Lovett-Jennette right of way (which allegedly travels between

the Lovett and Jennette properties) as evidence that in 1966 the

Lovetts' predecessors had alternative means of access other than

the disputed right of way. We address each proposed alternative

means of access in turn.

The trial judge credited the testimony of the Lovetts'

expert that the Jennette-Rueli right of way was not built on the

ground at the time of severance and that the Lovetts'

7 The Wojciks argue that it was improper for the judge to
find an implied easement because the Lovetts did not plead the
issue or raise it at trial. The case they cite, National Med.
Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984),
is inapposite because it involved the affirmative defense of
estoppel, not an implied easement. The Wojciks could have
hardly been surprised that the judge analyzed the issue of
implied easement where their complaint sought a declaration of
"the state of the boundaries and easements affecting the Wojcik
and Lovett properties."

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predecessors were never granted any rights over that way. The

judge found the Lovetts' expert's testimony credible because he

identified where the public highway at issue in the deeds was

located and began his title search at an earlier date. The

Wojciks' expert conceded that he did not know whether the

Jennette-Rueli right of way was laid out on the ground in 1920,

and that the 1920 deeds might have referenced the disputed right

of way. The judge's decision to credit the testimony of the

Lovetts' expert, including that expert's interpretation of the

relevant deeds and easement agreements, is plausible in light of

the entire record. We are not "left with the definite and firm

conviction that a mistake has been committed" (citation

omitted). White v. Hartigan, 464 Mass. 400, 414 (2013).

The second alternative means of access advanced by the

Wojciks is the Lovett-Jennette right of way, which travels

north. In three of the 1920 deeds from the heirs of Drake,

there is reference to an easement over a right of way that

allowed other land owners to access a public highway. The judge

found that these deeds referred to the portion of Bennett Street

disputed in this case, and also that the public highway was

located south of all of the properties. The Wojciks' expert

admitted that it was possible that the disputed right of way

needed to go south to access the public highway. Because the

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Lovett-Jennette right of way would not have effectively provided

access to the public highway to the south, its existence did not

prevent the disputed right of way from being reasonably

necessary to access the highway at the time common ownership was

severed.

The judge found nothing in the record suggesting that any

route other than the disputed right of way was used to travel

from the Lovett property to the public highway at the time Ida

transferred the northern Wocjik property to her son, and that

the parties would have recognized that Ida intended to still use

the disputed right of way. A. III/247. In the end, we agree

with the judge's findings that the easement over the entire

disputed portion of Bennett Street was reasonably necessary

because it "derived from an established pattern of prior use,"

see Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 78

(2004), the Lovetts' predecessors were never granted any rights

in the Jennette-Rueli right of way, and the Lovett-Jennette

right of way would not have provided effective access to the

public highway located to the south of the property.8 Because

8 There is no Massachusetts caselaw that supports the
Wojciks' alternative argument that a landlocked property on
navigable water does not reasonably need an easement by
implication through one of the surrounding properties.
Moreover, an implied easement turns on reasonable necessity --
not the absolute necessity generally present when recognizing

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the presumed intention of Ida Dexter at the time of severance

was to maintain use of that portion of Bennett Street and an

easement over the right of way was reasonably necessary, we

affirm the judge's finding of an implied easement. Accordingly,

we also affirm his declaration that the Lovetts have an implied

easement in the 7.5 feet of the right of way at issue in this

case, and his decision to dismiss the claim of trespass.9

Judgment affirmed.

By the Court (Neyman,
Brennan & Toone, JJ.10),

Clerk

Entered: September 11, 2024.

easements by necessity. See Lavoie, 102 Mass. App. Ct. at 20-
21.

9 Because the judge's decision was not dependent on the
inclusion of David Wojcik as a plaintiff, we need not address
the Wojciks' argument that he was improperly dismissed as a
party; we need not address the dismissal of the conversion claim
because it is not argued in the brief. Mass. R. A. P. 16 (a)
(9) (A), as appearing in 481 Mass. 1628 (2019). The Lovetts'
request for an award of attorney's fees is denied.

10 The panelists are listed in order of seniority.

14