                                                               Supreme Court

                                                               No. 2014-5-Appeal.
                                                               (PC 12-4718)


Virginia B. Kinder, individually and in her   :
  capacity as Trustee of the Virginia B.
              Kinder Trust.

                    v.                        :

            Jil Westcott 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
              222-3258 of any typographical or other formal errors in order that
              corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2014-5-Appeal.
                                                                   (PC 12-4718)


Virginia B. Kinder, individually and in her     :
  capacity as Trustee of the Virginia B.
              Kinder Trust.

                     v.                         :

             Jil Westcott et al.                :


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

                                         OPINION

       Justice Goldberg, for the Court.             This case came before the Supreme Court on

December 4, 2014, pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not summarily be decided. The plaintiff, Virginia B. Kinder 1

(plaintiff), appeals from a Superior Court judgment which declared that Jil Westcott (defendant)

had established the existence of an express easement appurtenant. After hearing the arguments

of counsel and examining the memoranda submitted by the parties, we are of the opinion that

cause has not been shown and that this case should be decided without further briefing or

argument. Because we hold, pursuant to the express terms of the recorded instrument creating

the easement, that the easement was freely assignable and appurtenant to the defendant’s land,

we affirm the judgment of the Superior Court.




1
 Virginia B. Kinder passed away while this appeal was pending; Edward Austin—her nephew
and co-executor of her estate—is substituted as plaintiff.
                                                -1-
                                            Facts and Travel

       The plaintiff currently owns a parcel of land located at 158 Poppasquash Road, Bristol,

Rhode Island, designated as assessors plat No. 182, lot No. 9 (lot No. 9). Additionally, plaintiff

owns real property designated as assessors plat No. 182, lot No. 6 (lot No. 6). The defendant

currently owns a lot located at 153 Poppasquash Road, Bristol, Rhode Island, designated as

assessors plat No. 182, lot No. 15 (lot No. 15). This controversy arose from an easement over a

sixteen-foot wide right-of-way that runs along a driveway on lot No. 9 and a portion of lot No. 6.

The easement allows access to Poppasquash Road from defendant’s property.

       The following brief history sets forth the facts relevant to this appeal. In 1952, Ralph F.

Kinder (Ralph), 2 plaintiff’s late husband, conveyed lot No. 15 to his brother Joseph C. Kinder

(Joseph). Ralph and plaintiff owned lot No. 9 in a joint tenancy; and Ralph, individually, owned

lot No. 6. On March 18, 1961, Ralph and plaintiff executed a grant of an easement, in favor of

Joseph. The easement was sixteen feet in width, extended from lot No. 15 over portions of lots

Nos. 6 and 9, and provided Joseph with access to Poppasquash Road from lot No. 15. The

instrument contains the following pertinent language:

               “JOSEPH C. KINDER * * * hereinafter called Grantee, which
               expression shall include his executors, administrators, heirs and
               assigns, of the other part.

                      “* * *

               “[I]n consideration of the total sum of Ten ($10) Dollars, paid by
               Grantee to Grantors, as Joint Tenants, and to RALPH F. KINDER,
               in his sole and individual capacity, the respective receipts whereof
               are hereby acknowledged, Grantors hereby grant unto Grantee the
               full and free right and liberty for him, his tenants, agents, servants,
               employees, licensees, guests and invitees, in common with all
               others having the like right, at all times hereafter, on foot or with

2
  For ease of reference, first names may be used throughout this opinion. No disrespect is
intended.
                                                -2-
               vehicles of any description, for all lawful purposes connected with
               the use and enjoyment of Grantee’s aforedescribed two (2) parcels
               of land, to pass and repass over, upon and across a certain strip of
               land sixteen (16) foot [sic] wide, as presently located, extending
               southerly from said Poppasquash Road * * *.

                       “* * *

                      “To Have and to Hold the same unto Grantee, his
               executors, administrators, heirs and assigns, as appurtenant to said
               lands of Grantee and every part thereof.”

Upon Ralph’s death, plaintiff became the owner of lots Nos. 6 and 9. Joseph died in 1986, but

his wife, Shirley N. Kinder (Shirley), and their children continued to use the easement across lots

Nos. 6 and 9 for access to lot No. 15.

       In 2002, Shirley passed away and her estate became the owner of lot No. 15. Later in

2002, the Town of Bristol approved the merger of lot No. 15 with lot No. 17, thus creating a

buildable lot. On June 28, 2004, Shirley’s son, in his capacity as executor of Shirley’s estate,

conveyed this lot—now designated as lot No. 15—to defendant. A few years later, defendant

constructed a home on lot No. 15, and her family began using the right-of-way across lots Nos. 6

and 9 to access Poppasquash Road from their property. 3 In 2012, plaintiff sent cease-and-desist

letters to defendant, demanding that defendant stop using the right-of-way.

       On September 10, 2012, plaintiff filed this action, seeking a declaratory judgment to quiet

title to the right-of-way and damages for trespass. The defendant counterclaimed that her right

of access derived from an instrument expressly granting the owner of lot No. 15 an easement

appurtenant. Subsequently, defendant moved for summary judgment, asserting that she had an

express easement permitting her to travel on the right-of-way.          In opposition to summary



3
  The plaintiff asserts that, during construction of defendant’s home, the contractors did not use
the right-of-way across lots Nos. 6 and 9; instead, plaintiff states that the contractors accessed lot
No. 15 through property owned by Joseph and Shirley’s son.
                                                -3-
judgment, plaintiff submitted an affidavit declaring that plaintiff, as grantor, did not intend for

the easement to run with the land; instead, she intended the easement to serve only Joseph and

his family.

       On October 1, 2013, a hearing on defendant’s motion for summary judgment was held in

Providence County Superior Court. The defendant argued that the language in the instrument

that created the easement was clear and unambiguous, citing the habendum clause 4 which stated,

“To Have and to Hold the same unto Grantee, his executors, administrators, heirs and assigns, as

appurtenant to said lands of Grantee and every part thereof.” (Emphasis added.) Conversely,

plaintiff argued that the instrument was ambiguous because the language in the granting clause—

which omitted “heirs and assigns”—conflicted with the language in the habendum clause.

According to plaintiff, this ambiguity requires extrinsic evidence on the grantors’ intent when

construing the document. The plaintiff contends that the grantors did not intend for the easement

to run with the land.

       After hearing the arguments of counsel, the trial justice found that the language in the

instrument created an express easement in favor of Joseph and his heirs and assigns.

Specifically, the trial justice noted that both the definition of grantee and the language of the

habendum clause referenced the grantee’s “heirs and assigns.” He concluded that this was clear

and convincing evidence that the easement would be for the benefit of Joseph’s heirs and assigns

and was appurtenant to the dominant estate. Accordingly, the trial justice granted defendant’s

motion for summary judgment from which plaintiff timely appealed.




4
  “The introductory words to the [habendum] clause are ordinarily to have and to hold.” Black’s
Law Dictionary 825 (10th ed. 2014) (emphasis added).
                                               -4-
                                        Issue on Appeal

       Before this Court, plaintiff contends that the trial justice erred in granting summary

judgment, arguing that the creation of an easement appurtenant involves questions of fact. The

defendant asserts that the language of the easement clearly and unambiguously granted a right of

easement to the assigns of Joseph, such that summary judgment appropriately was granted.

                                      Standard of Review

       “In reviewing the Superior Court’s judgment on a motion for summary judgment, we

examine the matter de novo and apply the same standards as those used by the trial court.”

Hazard v. East Hills, Inc., 45 A.3d 1262, 1268 (R.I. 2012) (quoting Tavares ex rel. Guiterrez v.

Barbour, 790 A.2d 1110, 1112 (R.I. 2002)). “[W]e view the evidence in the light most favorable

to the nonmoving party * * *.” Long v. Dell, Inc., 93 A.3d 988, 995 (R.I. 2014) (quoting Sullo v.

Greenberg, 68 A.3d 404, 406 (R.I. 2013)). “Summary judgment is appropriate only when ‘there

is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as

[a] matter of law.’” Id. at 995-96 (quoting Sola v. Leighton, 45 A.3d 502, 506 (R.I. 2012)).

                                            Analysis

       “Although a plaintiff in a civil action is ordinarily required to prove his or her case by

only a preponderance of the evidence, a plaintiff seeking to prove an easement must instead

‘overcome a higher clear and convincing standard[.]’” Pelletier v. Laureanno, 46 A.3d 28, 35

(R.I. 2012) (quoting Ondis v. City of Woonsocket ex rel. Treasurer Touzin, 934 A.2d 799, 803

(R.I. 2007)). When interpreting an instrument that purportedly creates an easement, this Court

must effectuate the intent of the parties. See Carpenter v. Hanslin, 900 A.2d 1136, 1147 (R.I.

2006). When construing its provisions, this Court examines the entire deed. See Bradish v.

Sullivan, 54 R.I. 434, 440, 173 A. 117, 119 (1934). However, when the provisions of a written



                                               -5-
agreement are clear and unambiguous, such provisions “‘can be interpreted and applied to the

undisputed facts as a matter of law’” and “neither oral testimony nor extrinsic evidence will be

received to explain the nature of extent of the rights acquired.” Carpenter, 900 A.2d at 1147

(quoting Mattos v. Seaton, 839 A.2d 553, 557 (R.I. 2004)).

          “[T]o create an easement by express grant, there must be a writing containing plain and

direct language evincing the grantor’s intent to create a right in the nature of an easement rather

than a license.” Pelletier, 46 A.3d at 36 (quoting 25 Am. Jur. 2d Easements and Licenses § 15 at

513 (2004)). In the case before us, the language in the deed is clear and unambiguous. The first

paragraph of the instrument defines the term “grantee” to include “his executors, administrators,

heirs and assigns[.]” 5 (Emphasis added.) Even though the granting clause 6 does not specifically

include the words “heirs and assigns,” that clause must be read in harmony with this definition

which includes the grantee’s heirs and assigns. In fact, because the definition of grantee also

embraced the grantee’s “heirs and assigns,” repeating the terms in the granting clause would

amount to surplusage.



5
  The exact language in the definition clause states: “JOSEPH C. KINDER * * * hereinafter
called Grantee, which expression shall include his executors, administrators, heirs and assigns, of
the other part.”
6
    The language of the granting clause is as follows:

          “[I]n consideration of the total sum of Ten ($10) Dollars, paid by Grantee to
          Grantors, as Joint Tenants, and to RALPH F. KINDER, in his sole and individual
          capacity, the respective receipts whereof are hereby acknowledged, Grantors
          hereby grant unto Grantee the full and free right and liberty for him, his tenants,
          agents, servants, employees, licensees, guests and invitees, in common with all
          others having the like right, at all times hereafter, on foot or with vehicles of any
          description, for all lawful purposes connected with the use and enjoyment of
          Grantee’s aforedescribed two (2) parcels of land, to pass and repass over, upon
          and across a certain strip of land sixteen (16) foot [sic] wide, as presently located,
          extending southerly from said Poppasquash Road * * *.”


                                                  -6-
       Furthermore, the habendum clause also refers to “heirs and assigns” when referencing the

grantee, thus confirming that defendant’s easement was appurtenant. 7 Lastly, an easement is

presumed to be appurtenant and the language in the instrument before us plainly indicates that

the easement is “appurtenant to said lands.” See Thomas v. Ross, 119 R.I. 231, 240, 376 A.2d

1368, 1373 (1977). Therefore, we conclude that the trial justice correctly concluded that the

easement runs with the land.

       Accordingly, we are satisfied that the easement was assignable and that the instrument

created an easement appurtenant.

                                           Conclusion

       For the foregoing reasons, we affirm the judgment of the Superior Court, to which the

papers in this case may be remanded.




7
  The habendum clause states: “To Have and to Hold the same unto Grantee, his executors,
administrators, heirs and assigns, as appurtenant to said lands of Grantee and every part thereof.”
(Emphasis added.)

                                               -7-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Virginia B. Kinder, individually and in her capacity as Trustee of
                      the Virginia B. Kinder Trust v. Jil Westcott et al.

CASE NO:              No. 2014-5-Appeal.
                      (PC 12-4718)

COURT:                Supreme Court

DATE OPINION FILED: January 12, 2015

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Joseph A. Montalbano

ATTORNEYS ON APPEAL:

                      For Plaintiff: John M. Verdecchia, Esq.

                      For Defendants: Rachelle R. Green, Esq.
