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14-P-1762                                           Appeals Court

  MELROSE FISH AND GAME CLUB, INC. vs.     TENNESSEE GAS PIPELINE
                          COMPANY, LLC.


                          No. 14-P-1762.

       Middlesex.      November 17, 2015. - June 20, 2016.

            Present:   Cypher, Trainor, & Rubin, JJ.


Easement. Real Property, Easement. Estoppel. Subdivision
     Control, Decision of planning board. Practice, Civil,
     Injunctive relief. Laches.



     Civil action commenced in the Superior Court Department on
April 23, 2013.

     The case was heard by Kimberly S. Budd, J., on motions for
summary judgment.


     Brian J. McNelis for the plaintiff.
     Dianne R. Phillips (Nathaniel F. Hulme with her) for the
defendant.


    RUBIN, J.   The plaintiff, Melrose Fish and Game Club, Inc.

(club), sued Tennessee Gas Pipeline Company, LLC (TGP) in

Superior Court for trespass because of TGP's alleged
                                                                    2


interference with an easement1 and breach of contract.   The suit

arises from TGP's construction, in 1998, of a natural gas

pipeline facility across the entire width of Cheever Avenue in

Saugus, a paper street over which the club claims an easement.

     On cross motions for summary judgment, the Superior Court

judge allowed TGP's motion and denied the club's.    The judge

ruled, first, that the breach of contract claim was barred by

the six-year statute of limitations in G. L. c. 260, § 2;

second, that the club's easement over Cheever Avenue had been

extinguished before it filed suit, either by estoppel or by

frustration of purpose; and, third, that even if the easement

still existed, the club's request for injunctive relief would be

barred by laches.    The club appeals the second and third

rulings.   We reverse.

     Background.    The club owns three lots of land in Saugus

near the Melrose border.   TGP owns a lot that shares a border

with one of the club's lots.   The land making up these four

lots, along with much of the surrounding land in Saugus, was

once owned by Wilbur F. Newhall.   In 1910, a plan subdividing

     1
       The club captions count II of its complaint "trespass" and
seeks damages from TGP for a "continuing trespass." The
Superior Court judge treated count II as stating a cause of
action for interference with an easement. Cf. New England Box
Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943). Since the
facts pleaded in the complaint put TGP on notice as to the
nature of the club's cause of action, this minor semantic
difference is of no moment.
                                                                     3


Newhall's land into dozens of different lots was recorded at the

registry of deeds (1910 plan).   The 1910 plan shows Cheever

Avenue bounding lots 76-80, amongst others, on their northeast

sides.   Up until around 1999, Cheever Avenue was entirely a

paper street.2

     In 1963, the club acquired lots 78-80 from Saugus (club

lots), which had acquired the lots by tax takings between 1930

and 1951.   The original deeds for those lots, as well as all

subsequent deeds, describe them as being bounded by Cheever

Avenue and as being numbered lots 78-80 on the 1910 plan.      The

tax takings describe the lots as located on Cheever Avenue.

     In 1998, TGP built the natural gas facility (facility) at

issue in this case.   On March 9, 1998, TGP entered into a Right

of Way Agreement (agreement) with the club.    This agreement

allowed TGP to use a small area in the northeast corner of lot

78 during construction and to build its facility over a portion

of lot 78 and a portion of Cheever Avenue.    This portion

extended to the midline of the paper street.    The agreement,

along with a drawing, was recorded.   The drawing indicates the

location of "Cheever Street [sic]."   TGP also exercised its

power of eminent domain, pursuant to an order by the Federal


     2
       A paper street is "a street shown on a plan but not built
on the ground." Berg v. Lexington, 68 Mass. App. Ct. 569, 570
(2007).
                                                                      4


Energy Regulatory Commission (FERC), to take a portion of lot

77, the lot immediately to the north of lot 78, which was then

owned by the Birch Hill Realty Trust, also known as the

Brentwood Estates Development Group (Brentwood Estates).3      On

July 21, 1998, the United States District Court for the District

of Massachusetts issued an order granting TGP a perpetual

easement and right of way over a portion of this lot.     The order

and an attached drawing were recorded.     The drawing indicates

the location of Cheever Avenue.    TGP constructed its natural gas

facility between July 21, 1998, and December 31, 1998.

     Physically, the facility spans the entire width of Cheever

Avenue and is located only partially on the easements and rights

of way TGP had acquired by eminent domain and its agreement with

the club.    It is built on the section of Cheever Avenue that

crosses lots 76 and 774 and a corner of the facility protrudes

onto land that is or was owned by Saugus.     This placement of the

facility cuts off the portion of Cheever Avenue that fronts the

club's lots from the portion that connects to a public way.

There is no explanation in the record for the decision to build


     3
       Lots 77 and 76 of the 1910 plan were later combined and
adjusted to form lot 3 in the 1999 subdivision plan described
infra. While it appears from the record that the taking
occurred prior to the approval of the 1999 subdivision plan, the
exact order is immaterial.
     4
         Now lot 3, as described infra.   See note 3, supra.
                                                                         5


the facility where it is, nor of what contractual arrangements,

if any, TGP had with Brentwood Estates or Saugus.

    In 1999, the planning board of Saugus (planning board)

approved a subdivision plan (1999 subdivision plan) submitted by

Brentwood Estates.        Under this plan, the northern portion of

Cheever Avenue would be paved and the lots fronting it would be

developed.   The paved portion of Cheever Ave would terminate in

a cul-de-sac just north of where the paper street borders the

club's three lots.

    One of the lots created by the 1999 subdivision plan was

lot 3, formed out of lots 76 and 77, as described in the 1910

plan.   As indicated above, this lot is situated just north of

the club's lot 78.    The deeds in the chain of title conveying

lots 76 and 77 from Newhall to Brentwood Estates all refer to

these lots by their numbers on the 1910 plan.        In 2006, eight

years after building its facility, TGP purchased lot 3 from

Brentwood Estates.        TGP's deed provides that it is "[s]ubject to

and with the benefit of any and all easements . . . which are in

force and applicable."

    Discussion.      1.     Standard of review.   We review a summary

judgment decision de novo.        Marhefka v. Zoning Bd. of Appeals of

Sutton, 79 Mass. App. Ct. 515, 517 (2011).        "Because the judge

does not engage in fact finding in ruling on cross motions for

summary judgment, we owe no deference to [her] assessment of the
                                                                      6


record."   Ibid.   "The standard of review of a grant of summary

judgment is whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law."    Caron v. Horace Mann Ins. Co., 466 Mass. 218,

221 (2013) (quotation omitted).

    2.     Existence of the easement.    The judge found that the

club possessed an easement by estoppel over the length of

Cheever Avenue.    We agree.

    "[W]hen a grantor conveys land bounded on a street or way,

he and those claiming under him are estopped to deny the

existence of such street or way, and the right thus acquired by

the grantee (an easement of way) is not only coextensive with

the land conveyed, but embraces the entire length of the way, as

it is then laid out or clearly indicated and prescribed."      Lane

v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 437

(2006), quoting from Murphy v. Mart Realty of Brockton, Inc.,

348 Mass. 675, 677-678 (1965).    "The estoppel of the grantor to

deny the existence of the way 'applies as well to a contemplated

way if clearly indicated as to an existing street.'"      Casella v.

Sneierson, 325 Mass. 85, 90 (1949), quoting from Ralph v.

Clifford, 224 Mass. 58, 60 (1916).      See Tufts v. Charlestown, 68

Mass. 271, 272-273 (1854); Murphy, supra at 678.
                                                                           7


    "This principle of estoppel 'seems to have become a rule of

law rather than a mere canon of construction.'"        Murphy, supra,

quoting from Teal v. Jagielo, 327 Mass. 156, 158 (1951).          "A way

created by estoppel, of course, 'is not a way by necessity, and

the right exists even if there be other ways either public or

private leading to the land.'"        Casella, supra at 91, quoting

from New England Structural Co. v. Everett Distilling Co., 189

Mass. 145, 152 (1905).

    TGP's reliance on Walter Kassuba Realty Corp. v. Akeson,

359 Mass. 725, 727 (1971), is misplaced.       TGP argues that the

Akeson case stands for the proposition that an easement by

estoppel will extend only to portions of a way that are actually

constructed or staked out.

    Akeson, however, cannot be read so broadly.         It holds that

the question involved is whether the grantor intended to create

an easement by implication.     Id. at 728.     This case is closer to

Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48, 53-56

(1980), which distinguished Akeson, than to Akeson itself.          As

here, the court in Searle was required "to determine the purpose

and effect of the reference to [a way] as a bounding way in [the

respondents'] deed."     Id. at 56.    The court explained that

"[b]ecause the [respondents'] parcel is now descriptively

bounded by [the way], there have been created by rights of

estoppel against their grantor and those claiming under that
                                                                     8


grantor rights appurtenant to the combined parcel over [the

way].   See Gaw v. Hughes, 111 Mass. 296 (1873); Hill v. Taylor,

296 Mass. 107, 116 (1936); Casella v. Sneierson, 325 Mass. 85,

89 (1949); Murphy v. Mart Realty of Brockton, Inc., 348 Mass.

675, 677-678 (1965).    The rights exist even if there are other

ways, public or private, leading to the land (New England

Structural Co. v. Everett Distilling Co., 189 Mass. 145, 152

[1905]), and the rights are coextensive with the entire length

of the way as actually laid out or as clearly indicated and

prescribed.   Casella v. Sneierson, supra at 89-90.   This remains

the case even if the way is not in existence, so long as it is

sufficiently designated on a plan.    The rights also apply even

if the way under consideration is obstructed, overgrown, and

impassable.   Murphy v. Mart Realty of Brockton, Inc., supra at

677-678."   Id. at 54-55.   The court concluded that the way was

adequately defined by the plan and that this fact distinguished

the case from Akeson:    "The fact . . . that [the way] is clearly

defined takes the circumstances out of the rule of those cases

that limit the scope of this category of easement because the

ways in question are indefinite, imprecisely designated or not

otherwise described beyond the boundaries of the appurtenant

land.   See Casella v. Sneierson, supra at 86-88; Walter Kassuba

Realty Corp. v. Akeson, supra at 725-726."    Id. at 55.
                                                                      9


     The same is true here.    Based on the undisputed facts in

the summary judgment record, the judge found, "The Newhall

deeds[5] describe the land comprising the club Lots as located on

Cheever Avenue.    The Griswold deed[6] describes the land conveyed

(which now comprises Lot 3) as 'lots . . . shown on the plan

above referred to' — the Hawkes Plan.[7]   Although the paper

street was not staked out, both the Newhall deeds and the

Griswold deed adequately designate the street by reference to

the Hawkes Plan.    See Murphy, 348 Mass. at 678 (1965); Olson v.

Arruda, 328 Mass. 363, 365 (1952) (although no right of way was

expressly created in the locus, one was created by reference to

a plan showing the street at issue as a proposed street);

Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass.

350, 354 (1926) ('A plan referred to in a deed becomes a part of

the contract so far as may be necessary to aid in the

identification of the lots and to determine the rights intended

to be conveyed.').    The Hawkes Plan clearly shows the club Lots

as bounding on the proposed road, Cheever Avenue."

     5
       These are the deeds for the three club lots that Newhall
sold in February and May of 1911. They referred to the club
lots as being lots 78-80 on the 1910 plan.
     6
       The deed for land sold by the executors of Newhall's
estate in 1921. The deed covered lots 74, 76, and 77 on the
1910 plan.
     7
       The judge referred to the 1910 plan as the "Hawkes Plan"
after its drafter.
                                                                  10


     TGP does not contest that the club's lots 78, 79, and 80

and TGP's lot 3 have a common grantor.   The recorded deed and

plans clearly indicate that the club lots abut Cheever Avenue.

Though our decision does not turn on it, the negotiation of the

agreement with the club demonstrates TGP's actual knowledge of

the existence of Cheever Avenue and of the fact that it bounds

the club lots.   Thus, TGP is estopped from contesting the club's

easement over Cheever Avenue.

     3.   Extinguishment of the easement.   The judge concluded

that the club's easement was extinguished either by estoppel or

by frustration of purpose.   On appeal, TGP abandons the first of

these arguments.8   Instead, it argues in its brief only that the


     8
       This was a wise concession. "Estoppel is based on the
policies of preventing the injustice and unjust enrichment that
would result if servitude beneficiaries were able to mislead a
burdened party into believing that the servitude will be
modified or terminated and then to obtain an injunction or
judgment for damages when the burdened party violates the
servitude . . . . To prevail on a claim of estoppel based on
silence, the defendants must prove that the silence of the owner
of the dominant estate communicated an intention to modify or
terminate the easement to the owner of the servient estate,
which the latter reasonably relied on to its substantial
detriment. Generally, silence reasonably may communicate such
an intention only where the owner of the dominant estate knows
that the owner of the servient estate intends to develop the
servient property in a manner that is fundamentally inconsistent
with the continued existence of the easement, and it is
reasonably foreseeable that the servient estate owner will
interpret the dominant estate owner's silence as assent and
proceed with the inconsistent development to his detriment."
Cater v. Bednarek, 462 Mass. 523, 531-532 (2012) (quoting from
and adopting Restatement [Third] of Property [Servitudes] § 7.6
[2000]; citation omitted).
                                                                    11


planning board's approval of the 1999 subdivision plan

frustrated the purpose of the easement, and thereby extinguished

it.

      a.   Extinguishment by frustration of purpose.   TGP argues

that the paving of a portion of Cheever Avenue has frustrated

the purpose of the club's easement.   We disagree.

      "When a right in the nature of an easement is incapable of

being exercised for the purpose for which it is created the

right is considered to be extinguished."    Comeau v. Manzelli,

344 Mass. 375, 381 (1962), quoting from Delconte v. Salloum, 336

Mass. 184, 190 (1957).   In a classic example from an early case,

an easement "of an open dock and common passageway for ships,

boats and other waterborne craft" was extinguished by

frustration of purpose where the city of Boston, acting pursuant

to statute, constructed a street across the dock and filled up




     The club did not mislead TGP into violating its easement.
TGP constructed its natural gas facility in just five months.
At the time construction started, the club could only know that
TGP intended to build a facility that would be inconsistent with
the continued existence of a small part of the easement,
covering one-half of its width. The plan approved by the
Federal District Court in the eminent domain proceeding on July
21, 1998, reflected the same intention. There is no evidence in
the record that during the five months of construction the club
became aware that TGP had decided to build its facility in a
different place. The club's delay in asserting its rights after
the construction of the facility is irrelevant to this analysis,
as TGP has not pointed to any detrimental reliance on this
postconstruction silence.
                                                                   12


the dock between the street and the shore, creating land.

Central Wharf & Wet Dock Corp. v. Proprietors of India Wharf,

123 Mass. 567, 569-570 (1878) (Gray, C.J.).   Nothing of the kind

can be shown here.   One manifest purpose of the easement was to

provide a right of way along Cheever Avenue out to a main

street.   The approval of a plan to pave part of Cheever Avenue

does not frustrate this purpose of the easement over the portion

beyond the paving.   Plainly, paving one part of a paper street

does not make it impossible to pave more of it later.

     b.   Extinguishment by approval of the 1999 subdivision

plan.   At oral argument, TGP advanced the distinct argument that

the planning board's approval of the 1999 subdivision plan,

which did not reflect the fact that Cheever Avenue continued as

a paper road past the cul-de-sac, directly extinguished the

club's easement, regardless of frustration of purpose.   Although

this issue was waived, were we to reach it, we would disagree.

     First, a municipality's decision to pave part of a paper

street does not extinguish private easement rights in the rest

of the paper street.   See Farnsworth v. Taylor, 75 Mass. 162,

168 (1857) ("The rights of the purchasers of house lots bounded

by the streets laid out on this plan are something more than a

dedication to the public, to be accepted or rejected at the

discretion of the public authorities").   Thus, the planning

board's approval of the 1999 subdivision plan did not, by
                                                                    13


providing for paving part of Cheever Avenue, extinguish any

easement rights over the rest of it.

    Moreover, the planning board did not have the power to

extinguish the club's easement by approving the 1999 subdivision

plan.    The Brentwood Estates subdivision plan was submitted and

approved under the subdivision control law.   See G. L. c. 41,

§ 81K.    A planning board's approval of a subdivision plan under

the subdivision control law cannot act as a taking, see G. L.

c. 41, § 81DD, inserted by St. 1953, c. 674, § 7 ("The

subdivision control law . . . shall not authorize the taking of

land"), which would be the effect of the extinguishment of the

club's easement.    See Darman v. Dunderdale, 362 Mass. 633, 641

(1972).    See also United States v. Certain Lands at Great Neck,

in County of Nassau, State of N.Y., 49 F. Supp. 265, 266

(E.D.N.Y. 1943); Tax Lien Co. of N.Y. v. Schultze, 213 N.Y. 9,

12 (1914); Aust v. Marcello, 112 R.I. 381, 386 (1973).

    Finally, the 1999 subdivision plan did not relate at all to

the club lots.   Therefore it is not in the chain of title to

those lots.    We do not think TPG's novel theory that easements

may be extinguished in this way is consistent with the other

rules relating to real property in a notice jurisdiction such as

ours.    See Emmons v. White, 58 Mass. App. Ct. 54, 63-68 (2003).

    4.    Injunctive relief.   The judge ruled that the club was

not entitled to injunctive relief for two reasons.    First, the
                                                                   14


judge ruled that the club's easement had been extinguished.

Second, the judge ruled that the club had failed to enforce its

easement rights in a timely manner.    Since we hold that the

club's easement was not extinguished, we must consider whether

the club's plea for injunctive relief is barred by the doctrine

of laches.   We conclude that it is not.

    "Generally, laches is a question of fact, Tzitzon Realty

Co. v. Mustonen, 352 Mass. 648, 650 (1967), and a finding of

fact by a Superior Court judge will not be overturned unless

clearly erroneous."   West Broadway Task Force v. Boston Hous.

Authy., 414 Mass. 394, 400 (1993).    However, the correct legal

definition of laches and the proper factors for a judge to

consider when applying it are issues of law, which we review de

novo.   U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 427

(2014).

    "The doctrine of laches operates in equity as an

affirmative defense against a plaintiff whose unreasonable delay

in bringing a claim results in some injury or prejudice to the

defendant.   Therefore, the [defendant] shoulders the burden of

proving that the [plaintiff] waited for an unreasonably long

period before asserting its rights . . . and that its delay

induced a detrimental change in the [defendant's] position or

injuriously affected the [defendant's] legal rights" (emphasis

in original).   West Broadway Task Force, supra at 400 (quotation
                                                                     15


omitted).   "Laches is not mere delay but delay that works

disadvantage to another."     Colony of Wellfleet, Inc. v. Harris,

71 Mass. App. Ct. 522, 531 (2008), quoting from Moseley v.

Briggs Realty Co., 320 Mass. 278, 283 (1946).

    The judge considered only the first element of laches,

concluding that the club was not entitled to injunctive relief

"because of its silence and failure to enforce its easement

rights in a timely manner."    However, unless the unreasonable

portion of the club's delay in bringing suit induced a

detrimental change in TGP's position or injuriously affected

TGP's legal rights, laches does not apply.

    Considering all the elements of laches, TGP was not

entitled to summary judgment on this ground, as there is nothing

in the record that could support a finding of prejudice.     TGP's

appellate brief does not explicitly identify a detrimental

change in the its position or an injury to its legal rights that

it claims resulted from the club's unreasonable delay.     Two

possible sources of prejudice, the cost of building the natural

gas facility and the cost of maintaining it, are not the result

of any unreasonable delay by the club.    TGP constructed the

facility in five months, at a time when the club had every

reason to believe that the facility would block only half of

Cheever Avenue.   Thereafter, TGP maintained the facility as a

necessary part of its business operations.
                                                                   16


     TGP also argues that an injunction would be "inequitable

. . . because of the public import of the natural gas facility"

and because of what it calls TGP's "bona fide claim of right"

based on its possession of the FERC order.    But of course, TGP

did not use the eminent domain power granted in that order to

obtain the right to build its facility in such a way that it

blocks all of Cheever Avenue.

     5.   Statute of limitations.   Finally the statute of

limitations is no bar to this action.   Since the club continues

to hold an easement over Cheever Avenue, the presence of TGP's

facility blocking that easement constitutes a continuing

trespass.   See Porter v. Clarendon Natl. Ins. Co., 76 Mass. App.

Ct. 655, 659 (2010) ("When a trespass is caused by the erection

of a permanent structure, that trespass commences on a date

certain, and the trespass continues as long as the offending

structure remains").   The failure to remove the structure

"constitutes a continuing trespass for the entire time during

which the thing is wrongfully on the land."    Restatement

(Second) of Torts § 161 comment b, at 289 (1965).9




     9
       TGP has not argued that the requirements for adverse
possession have been met. See Totman v. Malloy, 431 Mass. 143,
145 (2000) ("A party claiming title to land through adverse
possession must establish actual, open, exclusive, and
nonpermissive use for a continuous period of twenty years").
                                                                  17


    6.   Conclusion.   The judgment is reversed and the case is

remanded to the Superior Court for entry of judgment in favor of

the club and a determination of the proper remedy.

                                    So ordered.
