Parkridge Realty, Inc. v. Deston Company, LLC.

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-234

PARKRIDGE REALTY, INC.

vs.

DESTON COMPANY, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal, Parkridge Realty, Inc., challenges the

validity of Deston Company, LLC's sewer easement over

Parkridge's abutting lot within an industrial park in Haverhill.

The parties' lots are on registered land. Twenty-three years

after Deston installed a sewer line across a corner of

Parkridge's lot, Parkridge claimed that Deston did not have a

valid sewer easement because it does not appear on Parkridge's

certificate of title. The sewer easement clearly appears,

however, on the subdivision plan referred to in Parkridge's

title certificate. Acting on cross motions for summary

judgment, a Land Court judge declared that Deston had a valid

sewer easement, reasoning that the documents in the registration

system had placed Parkridge on notice of the easement when it
purchased its lot. For essentially the same reasons set forth

in the motion judge's well-reasoned decision, we affirm.

Background. We draw the following undisputed facts from

the summary judgment record. See Conway v. Caragliano, 102

Mass. App. Ct. 773, 774 (2023).

The land on which the industrial park now rests was first

registered by Avco Corporation in 1967 and depicted on the A

Plan. Avco Corporation conveyed the land to the Avco Everett

Research Laboratory, Inc., in 1973. The C Plan, registered in

1984, divided the parcel into Lots 2 and 3 and introduced a

twenty-five foot wide sewer easement running along the edge of

the property, which the parties and the Land Court judge

referred to as the "municipal sewer easement." The D Plan,

registered in early 1987, further divided Lot 2 into Lots 4, 5,

and 6; it shows the same municipal sewer easement running

through Lot 5. Later that year, Lots 5 and 6 were conveyed to

John C. Tuttle, Jr., as trustee of M.V.I. Realty Trust (M.V.I.

trust). The memorandum of encumbrances attached to M.V.I.

trust's 1987 certificate of title for Lots 5 and 6 listed

several documents of significance, which we discuss later.

M.V.I. trust further subdivided Lots 5 and 6 into Lots 7

through 14 as shown on the E Plan, which was filed in the

registration case in connection with M.V.I. trust's certificate

of title (no. 56949) in August 1987. Pertinent to this case,

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the E Plan shows an additional sewer easement, referred to by

the parties and the motion judge as the "1987 easement," across

a corner of Lot 8, which would enable Lot 7 to connect to the

existing municipal sewer easement (and serve no other apparent

purpose). In 1992, Essex Holdings, Inc., took ownership of Lots

7 through 11 as shown on the E Plan. In 1995, Essex Holdings

sold Lot 7 to D & S Realty Trust, which conveyed the lot to

Deston in July 1996. Essex Holdings sold Lot 8 to Parkridge in

August 1996. By the spring of 1997 Deston had installed a sewer

line across Lot 8, within the 1987 easement as depicted in the E

Plan, and connected it to the municipal sewer line.

In 2020 -- we need not address the reasons for the twenty-

three year delay -- Parkridge filed a try title complaint in the

Land Court, also alleging trespass by Deston and seeking

declaratory and injunctive relief. The Land Court denied relief

to Parkridge and declared that Deston's Lot 7 benefited from a

sewer easement across Parkridge's Lot 8: the 1987 easement, as

shown on the E Plan. Parkridge appeals.

Discussion. "We review a decision on a motion for summary

judgment de novo" (citation omitted). Smiley First, LLC v.

Department of Transp., 492 Mass. 103, 107 (2023). Where, as

here, the parties filed cross motions for summary judgment, we

view the evidence in the light most favorable to the party whose

motion was denied. See id. at 108; Boazova v. Safety Ins. Co.,

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462 Mass. 346, 350 (2012). "The allowance of a motion for

summary judgment is appropriate where there are no genuine

issues of material fact in dispute and the moving party is

entitled to judgment as a matter of law" (quotation and citation

omitted). Smiley First, LLC, supra.

Generally, "to affect registered land as the servient

estate, an easement must appear on the certificate of title."

Tetrault v. Bruscoe, 398 Mass. 454, 461 (1986). See G. L.

c. 185, § 46; Hickey v. Pathways Ass'n, Inc., 472 Mass. 735, 754

(2015). There are two "recognized exceptions" to this rule.

Jackson v. Knott, 418 Mass. 704, 710-711 (1994). Under the

first Jackson exception, a purchaser of registered land may take

the property subject to an encumbrance not included in the

certificate of title if the certificate describes facts "which

would prompt a reasonable purchaser to investigate further other

certificates of title, documents, or plans in the registration

system," and if the information discovered upon further

investigation suggests the intent to convey an easement. Id. at

711.1 See Hickey, supra at 759 ("Purchasers are expected to

1 Under the second Jackson exception, a purchaser with actual
knowledge of an encumbrance takes subject to that encumbrance
notwithstanding its absence from the certificate of title. See
Jackson, 418 Mass. at 711. Deston also argued that the second
exception applied, but the judge concluded that disputes of fact
foreclosed deciding in a summary judgment motion whether the
second Jackson exception applied. Deston does not advance its
actual knowledge claim on appeal.

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review the plan showing the lot in question, and to investigate

further other certificates of title, documents, and plans

contained within the registration system, at the time of their

purchase, to determine both their own rights and whether others

have rights").

Parkridge's certificate of title to Lot 8 does not list the

1987 easement -- or the municipal sewer easement, the validity

of which Parkridge recognizes -- as an encumbrance. It does,

however, refer to the 1987 E Plan. "If a plan is referred to in

the certificate of title, the purchaser would be expected to

review that plan." Jackson, 418 Mass. at 711. "A plan referred

to in a deed becomes a part of the contract so far as may be

necessary . . . to determine the rights intended to be

conveyed." Id. at 712, quoting Labounty v. Vickers, 352 Mass.

337, 344-345 (1967).

Parkridge, therefore, would have been expected to review

the E Plan when it purchased Lot 8, and even a cursory review of

the plan would have shown the 1987 easement that would allow Lot

7 to connect to the municipal sewer line. Further investigation

of other certificates of title and documents in the registration

system at the time Parkridge took title, which Parkridge would

have been expected to review, would provide further evidence of

the 1987 easement, as we now discuss.

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Parkridge acquired Lot 8 from Essex Holdings, "subject to

all easements and restrictions of record." Parkridge holds

title under a certificate no. 67100, which is a transfer

certificate from no. 62741, under which Essex Holdings held

title to Lots 7 through 11. These certificates both refer to

the E Plan. Essex Holdings's certificate was in turn a transfer

certificate from M.V.I. trust's certificate no. 56949, which

refers to the D Plan. The certificates in Parkridge's chain of

title clearly show the development of a series of sewer and

drain easements to provide Lots 7 through 14, as shown on the E

Plan, access to municipal services, including sewer easements.

Moreover, the memorandum of encumbrances attached to M.V.I.

trust's certificate of title lists several documents, all

included in the registration system, which would have further

confirmed the developers' intent to create, and the existence

of, what ultimately became Deston's sewer easement. As the Land

Court judge explained in detail, these encumbrances included a

covenant between Tuttle and the Haverhill Planning Board (board)

and a subsequent agreement among Tuttle, as trustee of M.V.I.

trust, the board, and a bank. These documents show that lots 7

through 14 on the E Plan were created as part of a definitive

subdivision plan for the "Merrimack Valley Industrial Park,"

which Tuttle had submitted to the board for its approval. As

part of that process, Tuttle and M.V.I. trust entered into the

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covenant, superseded by the agreement, to ensure the board that

they would construct ways and install municipal services, as

required by the board's rules and regulations, to serve the

buildings to be constructed on the lots in the proposed

subdivision. We agree with the judge that these, and other

documents listed on the memorandum of encumbrances,2 "provide[]

abundant detail about M.V.I. Trust's purposes in creating the

1987 Easement."

Parkridge contends that, notwithstanding the appearance of

the 1987 easement on the E Plan, no valid conveyance of easement

rights exists because M.V.I. trust's covenant and agreement with

the board were merely executory writings with conditions

subsequent that may or may not have been satisfied. See Akasu

v. Power, 325 Mass. 497, 501 (1950) ("An easement may be granted

which will terminate . . . upon the nonperformance of a

condition subsequent"). The existence and validity of the 1987

easement as shown on the E Plan, however, is independent of any

contractual obligations that M.V.I. trust owed to the board. If

2 In particular, the judge found further evidence of the
existence of Deston's sewer easement in a 1991 document titled
"easement and agreement" between Lynne S. Trombly, trustee of
Ward Avenue Realty Trust, and the then-trustees of M.V.I. trust,
and a 1991 partial release, in favor of Trombly, issued by
M.V.I. trust's mortgagee. The easement and agreement
recognized, among other things, that the then-trustees, as
owners of lots 7 and 8, enjoyed the right to install a sewer
line within the 1987 easement over lot 8 and within easements
over lot 7 connecting to the 1987 easement.

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consistent with the intent of the relevant parties at the time,

an easement shown on a plan is as valid as an easement mentioned

in a certificate of title. See Hickey, supra at 759; Jackson,

supra at 712-713; Duddy v. Mankewich, 75 Mass. App. Ct. 62, 67

(2009), quoting Lagorio v. Lewenberg, 226 Mass. 464, 466 (1917)

("It has been said, however, that a right of way shown on a plan

becomes 'appurtenant to the premises conveyed as clearly as if

mentioned in the deed'"). Here, the intent of the developers,

as manifested by the "progression of development," Hickey, 472

Mass. at 761, from the C Plan creating the municipal sewer

easement through to the E Plan creating the 1987 easement,

clearly establishes a connected series of sewer easements,

including a sewer easement, appurtenant to lot 7, across Lot 8.

We disagree with Parkridge's assertion that the Land Court

judge "incorrectly extended the doctrine of easement by estoppel

to registered land and from there to a sewer easement." To the

extent that cases such as Duddy, 75 Mass. App. Ct. at 70 n.13,

and Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct.

434, 438-439 (2006), relied on estoppel principles3 applying the

first Jackson exception, the Supreme Judicial Court "discern[ed]

3 In this context, "easement by estoppel" refers to an implied
easement by estoppel, also known as an "easement by boundary on
a way" -- not to be confused with an easement by equitable
estoppel. See M. Pill, Real Estate Law § 8:15, at 1059 (2023-
2024 ed. 2023).

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no reason why, in principle, in such limited circumstances as in

Lane and Duddy, application of an estoppel theory to subsequent

purchasers would impede the purposes of the land registration

scheme." Hickey, 472 Mass. at 758 n.30. Moreover, here,

although the progression of development corroborates the

existence of Deston's easement, Parkridge did not need to look

any further than its own certificate of title to discover the

existence of the 1987 easement on the E Plan. See Hickey, supra

at 758 & n.30 (rejecting plaintiffs' argument that because plans

referenced on their certificates of titles did not reference

defendants' lots, no reasonable purchaser would have notice of

defendants' rights of way; therefore, "the Land Court judge must

have relied improperly on a theory of easement by estoppel").

Finally, we reject Parkridge's assertion that affirming the

judgment "will erode the protections the registered land system

provides the reasonable purchaser of registered land." This

case presents a straightforward application of the first Jackson

exception. See Hickey, 472 Mass. at 755 n.27 (declining to

overrule Jackson and "adopt a stringent application of G. L.

c. 185, §§ 46 and 47"). A reasonable purchaser of registered

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land is able to protect itself by conducting a reasonable review

of the documents in the system.

Judgment affirmed.

By the Court (Meade,
Massing & Sacks, JJ.4),

Assistant Clerk

Entered: March 19, 2024.

4 The panelists are listed in order of seniority.

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