May 6, 2020


                                                                 Supreme Court

                                                                 No. 2018-352-Appeal.
                                                                 (WC 14-575)


          Michael R. McElroy et al.           :

                      v.                      :

          Edward Stephens, III et al.         :




                NOTICE: This opinion is subject to formal revision before
                publication in the Rhode Island Reporter. Readers are requested to
                notify the Opinion Analyst, Supreme Court of Rhode Island,
                250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                  Supreme Court

                                                                  No. 2018-352-Appeal.
                                                                  (WC 14-575)


         Michael R. McElroy et al.            :

                     v.                       :

         Edward Stephens, III et al.          :

              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

        Justice Indeglia, for the Court. The defendants, Edward Stephens, III and Marilyn O.

Stephens (the Stephenses), Paul G. Anthony and Nancy L. Anthony (the Anthonys), and Vivian

H. Lacroix (collectively defendants), appeal from a Superior Court judgment granting summary

judgment in favor of the plaintiffs, Michael R. McElroy and Christine O. McElroy (plaintiffs or

the McElroys), and declaring that the plaintiffs are entitled to unobstructed access to a beach

easement and may cross the properties of any of the defendants to reach that easement. This

matter came before the Court on January 28, 2020, pursuant to an order directing the parties to

appear and show cause why the issues raised in this appeal should not be summarily decided.

After considering the arguments set forth in the parties’ memoranda and at oral argument, we are

convinced that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons stated in this opinion, we vacate the judgment of the

Superior Court and remand the case for a trial to resolve the outstanding factual issues in the

case.




                                               -1-
                                                 I

                                         Facts and Travel

       The facts pertinent to this appeal are as follows. Essentially, plaintiffs’ Narragansett

property is separated from a beach known as “Seaweed Beach” and the ocean by three other lots,

which are owned by defendants; plaintiffs claim an easement and right-of-way over all three of

defendants’ lots in order to reach the Seaweed Beach easement and the ocean.

       More than ninety years ago, in 1929, the property owned by plaintiffs and defendants

consisted of two contiguous parcels of land (known as the Davis Heritage) that ran along

Seaweed Beach; in 1929 the owner thereof had been granted an easement over Seaweed Beach

to access the ocean. On March 3, 1944, Carrie and Martha Davis conveyed a portion of the

Davis Heritage to Walter and Grace Potter (the Stephens property). 1 Subsequently, on June 1,

1944, Carrie and Martha Davis granted a second portion of the Davis Heritage to Lawrence and

Irene Wells (the Lacroix property). The Stephens and Lacroix properties abut Seaweed Beach

and have direct access to the Seaweed Beach easement.            On April 5, 1960, Carrie Davis

conveyed a third portion of the Davis Heritage to Everett and Clara Babcock (the McElroy

property). The McElroy property is set back from Seaweed Beach and does not have direct

access to the Seaweed Beach easement. The Stephens property is located directly between the

McElroy property and Seaweed Beach. On October 2, 1979, Matthew and Vivian Lacroix were

granted the Lacroix property; and, by November 1983, Conrad and Gail Darelius had acquired

title to both the Stephens and the McElroy properties.




1
  For clarity, we refer to each of the four parcels of land involved in this case by the last name of
the current owner—e.g. the McElroy property. “As a picture is worth a thousand words,” a map
illustrating the modern configuration of the Davis Heritage is appended as Appendix A.
Kilmartin v. Barbuto, 158 A.3d 735, 737 n.5 (R.I. 2017).
                                                -2-
       Thereafter, on March 5, 1986, plaintiffs entered into an agreement with the Dareliuses for

the purchase and sale of the McElroy property. According to plaintiffs, they were assured by the

Dareliuses that they would have full legal access to the ocean and a right-of-way across the

Stephens property, which, again, is located directly between the McElroy property and Seaweed

Beach. The purchase and sale agreement provided that the sale was “[t]ogether with the rights,

set forth in the deeds, to cross the lands of Mr. and Mrs. Darelius to have access to the water.”

Significantly, this agreement was recorded in the Narragansett Land Evidence Records. On

April 30, 1986, the Dareliuses conveyed the property to plaintiffs. The warranty deed (the 1986

deed), however, did not explicitly contain the same specific language as the purchase and sale

agreement, but it did include the following significant language: “Together with and subject to

all easements, rights of way and restrictions of record. (See Book 8, page 528, Book 8, page 594,

Book 10, page 10, Book 15, page 666 and Book 47, page 355.)” According to plaintiffs, shortly

after they moved in, they discussed their right-of-way with the Dareliuses and agreed to use the

driveway to access the water, rather than other portions of the Dareliuses’ yard. The plaintiffs

claim to have used such access for the next twenty-seven years, until the summer of 2013.

       On May 15, 1992, the Dareliuses acquired another portion of the Davis Heritage (the

Anthony property). On November 16, 2000, Gail Darelius conveyed the Anthony property to the

Anthonys. The Anthony property has direct access to Seaweed Beach and is located between the

Stephens property and the Lacroix property. A portion of the Anthony property runs upward

alongside the McElroy property, which portion, according to plaintiffs, they sometimes used to

access Seaweed Beach if the Dareliuses’ driveway was full.

       On November 1, 2010, the Stephenses acquired the Stephens property from the

Dareliuses. In the summer of 2013, according to plaintiffs, the Stephenses disputed whether



                                              -3-
plaintiffs had a right to access Seaweed Beach over their property, and the Stephenses

subsequently placed a large “chain with a lock” as well as a garden and boulders so as to block

their driveway and impede plaintiffs’ access.

        The plaintiffs filed suit in the Superior Court against the Stephenses on October 7, 2014;

and, on October 19, 2015, they filed an amended complaint including as defendants Lacroix and

the Anthonys, the current owners of the other two lots abutting Seaweed Beach that were

subdivided from the original parcels that enjoyed the Seaweed Beach easement. The plaintiffs

sought (1) to quiet title to the easement to access Seaweed Beach; (2) a declaration that they are

the lawful owners and users of an easement over defendants’ properties; and (3) injunctive relief

to halt the Stephenses from obstructing or hindering their use of the easement.          In turn,

defendants filed counterclaims seeking declarations that plaintiffs do not enjoy an easement over

their properties.

        Subsequently, plaintiffs filed a motion for summary judgment, to which defendants

objected and filed a cross-motion for summary judgment. On August 22, 2016, a hearing was

held on those motions. At the hearing, plaintiffs asserted that the property still “enjoy[ed] an

unrestricted easement [appurtenant] to Seaweed Beach by virtue of the [original] grant itself,”

because such an easement must be specifically excised out of the deed in order for it to be

extinguished. The plaintiffs also claimed that they were entitled to access to Seaweed Beach

because they held a right-of-way over all three of defendants’ properties, based on the doctrines

of easement by implication and easement by necessity. Conversely, defendants argued that the

easement over Seaweed Beach in favor of the original owner of the parcels was extinguished

because plaintiffs no longer had a legal means to access it—that is, the McElroy property no

longer abuts Seaweed Beach, but is instead separated from Seaweed Beach by defendants’



                                                -4-
properties. The defendants also averred that the theory of implied easement or easement by

necessity did not provide plaintiffs with a right-of-way over any of defendants’ properties.

       On August 27, 2018, the hearing justice issued a bench decision on the cross-motions for

summary judgment. The hearing justice noted that plaintiffs based their claim to an easement

providing them access to the Seaweed Beach easement on three theories: easement appurtenant,

easement by implication, and easement by necessity. He stated that, in light of the affidavits

filed by the parties, the theories of easement by implication or easement by necessity were not

proper for summary judgment, given that both required evidentiary hearings and further

development of the facts and issues. The hearing justice further noted, however, that the theory

of an easement appurtenant could be decided on summary judgment. Relying on Sullivan

Granite Co. v. Vuono, 48 R.I. 292, 137 A. 687 (1927), and Crawford Realty Company v. Ostrow,

89 R.I. 12, 150 A.2d 5 (1959), the hearing justice stated that “[a]n easement appurtenant will

pass by deed of the dominant tenement even if the easement is not specifically mentioned within

the deed[,]” and that “[t]he owner of a dominant estate may extinguish an easement appurtenant

only by specifically excluding it from the conveyance of the dominant tenement.”

       Ultimately, the hearing justice found that, based on the evidence before the court, the

language in the original easement to cross over Seaweed Beach, granted to the Davis Heritage in

1929, incontrovertibly established “that an easement was granted to that property” and that such

easement “survived all of the subsequent transfers of property” pursuant to this Court’s

jurisprudence and G.L. 1956 § 34-11-28. 2 The hearing justice further stated that the court had

not been provided with any evidence of “any different intentions contained in any deeds that


2
  General Laws 1956 § 34-11-28 provides: “In any conveyance of real estate all rights,
privileges, and appurtenances belonging or appertaining to the granted estate shall be included in
the conveyance, unless a different intention shall clearly appear in the deed, and it shall be
unnecessary to enumerate or mention them either generally or specifically.”
                                               -5-
would undercut [p]laintiff[s’] claim that an easement ran through their property, to all the

[defendants’] properties[.]” Accordingly, the hearing justice granted summary judgment in favor

of plaintiffs, and denied defendants’ cross-motion for summary judgment. Judgment entered

declaring that plaintiffs are the owners of the easement and that they are entitled to unobstructed

access to the easement, and denying defendants’ counterclaims. The defendants timely appealed

to this Court.

                                                II

                                      Standard of Review

        “A motion for summary judgment is designed to decide in an expeditious fashion cases

presenting groundless claims.” Note Capital Group, Inc. v. Perretta, 207 A.3d 998, 1002 (R.I.

2019) (quoting Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199 A.3d 1034, 1038

(R.I. 2019)). “When we review a hearing justice’s grant of a motion for summary judgment, we

conduct our analysis de novo.” Id. (quoting Hexagon Holdings, Inc., 199 A.3d at 1038). “If we

determine that there exists no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law, then we will affirm the grant of the motion.” Id. (quoting Hexagon

Holdings, Inc., 199 A.3d at 1038).

       However, we remain cognizant that “summary judgment is an extreme remedy that

should be applied cautiously.” Note Capital Group, Inc., 207 A.3d at 1006 (quoting Plainfield

Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 58 (R.I.

2010)). “As such, motions for summary judgment should be denied where genuine issues of

material fact are present.” Hill v. National Grid, 11 A.3d 110, 114 (R.I. 2011).




                                               -6-
                                                III

                                           Discussion

        After careful review of the entire record and the parties’ written and oral submissions, we

hold that genuine issues of material fact remain. It is clear to us that, prior to dividing the

property from the original larger parcels, the Davis Heritage enjoyed an easement appurtenant

over Seaweed Beach.       Although the hearing justice correctly stated that “[a]n easement

appurtenant will pass by deed of the dominant tenement even if the easement is not specifically

mentioned within the deed” and that “[t]he owner of a dominant estate may extinguish an

easement appurtenant only by specifically excluding it from the conveyance of the dominant

tenement[,]” he prematurely determined that plaintiffs enjoyed an easement to access Seaweed

Beach. It is our opinion that the hearing justice should have first determined whether or not an

implied easement or easement by necessity exists for plaintiffs to cross over defendants’

properties—in view of the fact that the McElroy property no longer directly abuts Seaweed

Beach—and, if so, whether the easement was created by the original grant in 1929 or the 1986

deed.

        The plaintiffs may have a right to traverse the Stephens property or any of the other

defendants’ properties to make use of their right to use the beach. The hearing justice did not

make any findings or legal conclusions with respect to whether an implied easement or easement

by necessity exists allowing the McElroys to cross over the Stephens property or any of the other

defendants’ properties. Such claims must be examined by the finder of fact in the first instance.

In order to make this determination, the facts and circumstances at the time of the subdivision of

the Davis Heritage, as well as at the time of the 1986 deed to the McElroy property, must be

considered. See Caluori v. Dexter Credit Union, 79 A.3d 823, 831 (R.I. 2013).



                                               -7-
                                               IV

                                           Conclusion

       Accordingly, we vacate the judgment of the Superior Court in favor of the plaintiffs and

remand the case to the Superior Court for further proceedings consistent with this opinion.




                                              -8-
Appendix A




   -9-
STATE OF RHODE ISLAND AND                                    PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Michael R. McElroy et al. v. Edward Stephens, III et
Title of Case
                                     al.
                                     No. 2018-352-Appeal.
Case Number
                                     (WC 14-575)
Date Opinion Filed                   May 6, 2020
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Washington County Superior Court

Judicial Officer From Lower Court    Associate Justice Luis M. Matos
                                     For Plaintiffs:

                                     Justin T. Shay, Esq.
Attorney(s) on Appeal                Leah L. Miraldi, Esq.
                                     For Defendants:

                                     James A. Donnelly, Esq.




SU-CMS-02A (revised June 2016)
