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SJC-11963

   HUGH C. TAYLOR, trustee,1 & others2 vs.     MARTHA'S VINEYARD
                      LAND BANK COMMISSION.



            Suffolk.    March 8, 2016. - October 11, 2016.

Present:     Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.3


Easement. Real Property, Easement.     Martha's Vineyard Land Bank
     Commission.



     Civil action commenced in the Land Court Department on June
9, 2010.

     A motion for summary judgment was heard by Alexander H.
Sands, III, J., and the remaining issues were also heard by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Diane C. Tillotson for the defendant.
     Gordon M. Orloff for the plaintiffs.
     Jeffrey T. Angley & Nicholas P. Shapiro, for Roma III,
Ltd., amicus curiae, submitted a brief.

     1
         Of Taylor Realty Trust.
     2
       Jeanne S. Taylor and Brian M. Hurley, as trustees of
Taylor Realty Trust.
     3
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2


     Greg D. Peterson, Mark S. Furman, & Matthew S. Furman, for
Sarah A. Kent, amicus curiae, submitted a brief.


    LENK, J.   The defendant, Martha's Vineyard Land Bank

Commission, owns and manages a nature preserve on the western

edge of Martha's Vineyard.   The preserve is comprised of various

parcels of land that the defendant purchased in the 1990s.

In 2010, the defendant created a hiking trail through the

preserve, which it planned to open to the public.   The trail

began on a main road, crossed over the grounds of an inn owned

by the plaintiffs via a forty-foot wide easement, proceeded from

there across three parcels of the defendant's land for whose

benefit the easement was created, and then entered a fourth

parcel, also owned by the defendant, that was not intended to

benefit from the easement.   The plaintiffs filed an action in

the Land Court to prevent the defendant from using the easement

as part of the hiking trail.   They argued, among other things,

that it was improper, pursuant to Murphy v. Mart Realty of

Brockton, Inc., 348 Mass. 675 (1965), for the trail to cross

over the easement and then continue onto the fourth parcel,

given that the easement was not intended to serve that parcel.

On this basis, a judge of the Land Court granted partial summary

judgment for the plaintiffs.   Following a bench trial, at which

certain remaining issues were resolved in the defendant's favor,

the defendant appealed from the grant of partial summary
                                                                   3


judgment, and we allowed its application for direct appellate

review.4

     The defendant contends that the bright-line rule in Murphy,

disallowing any use of an easement to benefit land to which the

easement is not appurtenant,5 is overly rigid.    The defendant

suggests that, instead, this court should adopt a fact-intensive

inquiry requiring consideration whether the use of a particular

easement to benefit other parcels would increase unfairly the

burden on the easement.    We conclude that the benefits of

preserving the long-standing, bright-line rule set forth in

Murphy outweigh any costs associated with its rigidity, and

therefore decline to adopt the defendant's suggestion.

Accordingly, we affirm the judgment of the Land Court.

     1.    Background.   Martha's Vineyard Land Bank Commission

"was established in 1985 by a special act of the

Legislature . . . for the purpose of acquiring land for

environmental protection, conservation, and managed public use."

It owns and manages, among other properties, the Aquinnah

Headlands Preserve, a nature preserve on the western edge of

     4
       We acknowledge the amicus brief submitted by Roma III,
Ltd., on behalf of the defendant, and the amicus brief of Sarah
A. Kent.
     5
       An easement "appurtenant" is one created for the benefit
of a particular parcel of land; the right to use it is "tied to
ownership or occupancy of [that] particular unit or parcel of
land." Restatement (Third) of Property: Servitudes § 1.5
(2000).
                                                                      4


Martha's Vineyard located atop the Gay Head Cliffs.     The

preserve contains a series of hiking trails, which are open to

the public annually during the tourism off-season, from

September 15 through June 15.

     In the early 1990s, the defendant assembled what is now the

preserve by purchasing a series of parcels on the Gay Head

Cliffs.    Four of these parcels are relevant here.   From south to

north, these adjacent parcels are referenced by the parties as

Ginnochio Lot 1,6 Vanderhoop Parcel, Ginnochio Lot 2, and Diem

Lot 5.7    None of the four parcels abuts the nearest public way,

Lighthouse Road, which runs to the south of the properties.    A

separate parcel, however, located to the southeast of the

defendant's properties, connects Ginnochio Lot 1 to Lighthouse

Road.     That parcel, owned by the plaintiffs, is registered land

known as the Inn Property.    It contains a small hotel with seven

guest rooms that is open only during the tourism season,

approximately from mid-May through Columbus Day weekend.

     The defendant's parcels benefit from two easements that

burden the Inn Property.    Those easements, which were created

before the defendant purchased the parcels that now comprise the


     6
       The parties do not dispute that the defendant holds title
to Ginnochio Lot 1, but the Land Court judge noted in his
decision that it is unclear whether this is so.
     7
       All of the defendant's parcels at issue, with the
exception of the Vanderhoop Parcel, are registered land.
                                                                      5


preserve, provide access to and from Lighthouse Road.    Neither

of the easements is appurtenant to all four of the parcels.     The

first easement, a forty-foot wide road referred to in the Land

Court proceedings and by the parties here as the Disputed Way,

is appurtenant to and serves the three southern parcels

(Ginnochio Lot 1, Vanderhoop Parcel, and Ginnochio Lot 2).    The

other easement, called Twenty-Foot Way, is appurtenant to and

serves Diem Lot 5, the northernmost property.8

     In May, 2010, the defendant received approval from various

government agencies to implement a "Management Plan"9 that called

for creating a hiking trail on the preserve.     The proposed trail

would incorporate Disputed Way and Twenty Foot Way in a single

loop.    The trail would extend along the full length of Disputed


     8
       Both Disputed Way and Twenty-Foot Way "originat[e] at
Lighthouse Road" and "cross[ north onto] the Inn Property."
(One document in the record suggests that Disputed Way actually
originates south of Lighthouse Road, but the Land Court judge
credited other documents that "do not depict any portion of the
Disputed Way south of Lighthouse Road.") From there, Disputed
Way branches northwest, crossing onto Ginnochio Lot 1,
Vanderhoop Parcel, and, finally, Ginnochio Lot 2. Twenty Foot
Way, on the other hand, "branches off of the Disputed Way . . .
and runs northeasterly across the Inn Property" onto another
parcel owned by the plaintiffs. From there, it crosses onto two
other parcels owned by neither party and "intersects with"
another easement, "which . . . access[es] Diem Lot 5."
     9
       "Management plans" are the official name for land-
management projects proposed by the defendant. They may be
carried out only after a public hearing, and require approval
from the Gay Head town advisory board and the Secretary of the
Executive Office of Energy and Environmental Affairs, a State
agency.
                                                                      6


Way, "begin[ning] at Lighthouse Road, proceed[ing] northwesterly

over [the Inn] Property, then over Ginnochio Lot 1, . . . and

the Vanderhoop Parcel," and "terminating on Ginnochio Lot 2."

From there, the trail would run north into Diem Lot 5, and

ultimately intersect with Twenty Foot Way.     Then, via Twenty

Foot Way, the trail would return to its point of origin near

Lighthouse Road.

     In June, 2010, the plaintiffs filed a complaint in the Land

Court seeking a declaratory judgment that the defendant could

not use Disputed Way as part of the proposed hiking loop.     Among

other things, the plaintiffs argued that, because the Disputed

Way easement was appurtenant only to Ginnochio Lot 1, Vanderhoop

Parcel, and Ginnochio Lot 2, the three southern parcels, the

defendant was not entitled to use it as part of a trail that

reached Diem Lot 5.10   The plaintiffs also argued that opening

Disputed Way to the public, even without a continuation onto

Diem Lot 5, would overburden11 the easement.




     10
       They did not dispute, though, that Twenty Foot Way was
meant to serve Diem Lot 5.
     11
        We "use[] 'overburden' to describe only use of an
easement for a purpose different from that intended in the
creation of the easement, [and] 'overload' to describe the
situation . . . where an appurtenant easement is used to serve
land other than the land to which it is appurtenant." Southwick
v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 n.12
(2005).
                                                                   7


    In March, 2011, the plaintiffs filed a motion for summary

judgment.   A Land Court judge granted the motion in part,

concluding, among other things, that incorporating Disputed Way

into a hiking trail that reached Diem Lot 5 would overload the

Disputed Way easement and, accordingly, that any trail passing

over Disputed Way must terminate before crossing onto Diem

Lot 5.   This effectively divided the proposed hiking loop into

two separate trails, the first from Lighthouse Road to Ginnochio

Lot 2 via Disputed Way, and the other from Lighthouse Road to

Diem Lot 5 via Twenty-Foot Way.   While hikers could make use of

both trails, they would not be able to do so in a single loop.

    The judge also concluded, however, that there was a genuine

issue of material fact whether, among other things, opening the

easement to the public would unreasonably increase pedestrian

traffic on the Inn Property and thereby overburden the easement.

The judge conducted a trial on that issue, and concluded that

opening Disputed Way to members of the public would not

overburden the easement.   He noted that "such use comports to

the [original] scope of the easement" and that the defendant

proposed only "limited use of the Disputed Way by the public."

    The defendant filed a notice of appeal.    The notice

specified that the defendant was challenging only the Land

Court's decision on summary judgment, i.e., the ruling that

Disputed Way could not be used to benefit Diem Lot 5.     The
                                                                   8


defendant then filed an application in this court seeking direct

appellate review; that application was allowed.

     2.   Discussion.   We have long held that a "right of way

appurtenant to [a particular piece of] land . . . cannot be used

by the owner of the dominant tenement to pass to or from other

land adjacent to or beyond that to which the easement is

appurtenant."12   See Murphy, 348 Mass. at 678-679.   See, e.g.,

McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 364 (1996)

(easement may not be used to serve estate to which not

appurtenant); Davenport v. Lamson, 21 Pick. 72, 74 (1838) (it is

"well settled by the authorities, that if a [person] have a

right of way over another's land, to a particular close, he [or

she] cannot enlarge it and extend it to other closes");.

"[A]bsent . . . consent [from the owner of the servient estate],

use of an easement to benefit property located beyond the

dominant estate constitutes an over[load]ing of the easement"

(citation omitted).     McLaughlin, supra at 364.

     This limitation on the permissible use of easements is a

bright-line "rule [meant to] avoid[] otherwise difficult

litigation over the question whether increased use unreasonably

increases the burden on the servient estate," and, consequently,


     12
       "A dominant estate is an estate that benefits from an
easement . . . ." Cater v. Bednarek, 462 Mass. 523, 524 n.5
(2012). "A servient estate is an estate burdened by an
easement." Id.
                                                                    9


applies "even if no additional use of the easement or burden on

the servient estate would ensue."     Restatement (Third) of

Property:    Servitudes § 4.11 comment b (2000) (Restatement of

Property).    Here, the parties do not dispute that, under this

long-standing rule, the defendant would be prohibited from using

Disputed Way to access a parcel the easement was not intended to

benefit, i.e., Diem Lot 5.

     The defendant suggests, however, that this court adopt a

new rule that would replace the bright-line test described in

Murphy with a fact-based inquiry.13    The inquiry would consider

"whether use of an easement by an adjacent parcel would place

additional burden on the servient estate," and, if so, whether


     13
       The defendant suggests also that we might limit
application of the traditional rule to those cases where, unlike
here, use of an easement to benefit other parcels would result
in a significant additional burden to the servient estate.
Contrast Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675,
678-679 (1965) (owner of dominant estate enjoined from using
easement appurtenant to one lot for commercial access to large
discount store and parking lot located on other parcels). As
the Land Court judge correctly noted, however, the relevant
precedents are "clearly based on [an] established rule, and not
based on unique facts."

     The defendant also requests that, even if we affirm the
traditional bright-line rule, trial court judges should be
encouraged not to issue injunctions enforcing it. See, e.g.,
Rhett v. Gray, 401 S.C. 478, 496 (Ct. App. 2012) (if "the
additional burden is relatively trifling, the user will not be
enjoined" [citation omitted]). We decline this invitation; an
"injunction is an appropriate remedy to enjoin repeated
trespasses, even though no substantial damage is thereby
incurred by the landowner." Doody v. Spurr, 315 Mass. 129, 134
(1943).
                                                                   10


such additional use "unfairly burden[s] the servient

estate . . . in a manner beyond the scope of that intended" in

the original grant.   This proposed test is the functional

equivalent of that used by courts in determining whether the

owner of a dominant estate has overburdened an easement by

changing the "manner, frequency, [or] intensity of the use."

See Restatement of Property, supra at § 4.10.   See, e.g., Marden

v. Mallard Decoy Club, Inc., 361 Mass. 105, 107 (1972)

("easement granted in general terms is . . . available for all

reasonable uses to which the dominant estate may thereafter be

devoted"); Labounty v. Vickers, 352 Mass. 337, 345 (1967) ("The

question as to the extent and limits of a reasonable right of

way . . . [is] largely one of fact . . ."); Restatement of

Property, supra at § 4.10 comment c ("Resolution of the conflict

[over changed use] often demands a detailed inquiry into the

particular facts and circumstances of the case, and the issues

as to intent, reasonable expectations, purpose, reasonableness

of use, and extent of damage and interference are usually

intertwined").   Under this test, the defendant contends, use of

the Disputed Way easement to reach Diem Lot 5 would not

constitute an overloading, as "it is unlikely that pedestrian

traffic over the [plaintiffs'] lot will increase [merely

because] the Disputed Way . . . is used for access to Diem

Lot 5."
                                                                   11


    The defendant's proposed test has the advantage of being

more flexible than the current bright-line rule.    That

flexibility, however, would come with significant costs.     First,

it requires altering a long-standing rule of "contract and

property law . . . , in which reliance upon existing judicial

precedent often influences individual action," see Papadopoulos

v. Target Corp., 457 Mass. 368, 385 (2010), and in which

"considerations favoring stare decisis are 'at their acme.'"

Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401, 2410

(2015), quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991).

While "this court is not barred from departing from previous

pronouncements," we do so only where "the benefits of [the

proposed rule] outweigh the values underlying stare decisis."

Stonehill College v. Massachusetts Comm'n Against

Discrimination, 441 Mass. 549, 562, cert. denied, 543 U.S. 979

(2004).

    Here, we are not persuaded that the defendant's proposed

rule would provide such benefits.   The type of detailed inquiry

the defendant proposes "frequently present[s] difficult factual

issues as to how broadly or narrowly the purpose [of the

easement] should be defined, whether the proposed [expanded use]

is . . . of the sort that should have been contemplated by the

parties, how much damage or interference is likely to ensue, and

whether it is reasonable."   Restatement of Property, supra at
                                                                 12


§ 4.10 comment c.   Our bright-line rule in Murphy was formulated

to avoid precisely this type of "difficult" litigation.   See id.

     It goes without saying, as the defendant notes, that "we do

not reject desirable developments in the law [of easements]

solely because such developments may result in disputes spurring

litigation."   M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 93

(2004).   We are not so much concerned, however, with the mere

fact of litigation, as with the uncertainty that the prospect of

such litigation would introduce in land ownership.14   See id. at

92 (we disfavor "plac[ing] property interests in an uncertain

status"); Nelson v. Blinn, 197 Mass. 279, 281 (1908), aff'd, 222

U.S. 1 (1911) (policy against subjecting "regular and lawful use

and ownership of property" to "restrictions and uncertainty").

     For example, a company might acquire a single, small parcel

of land served by an easement, and then use that easement to

provide access to a large commercial establishment located on

multiple adjoining parcels, none of which was intended to

benefit from that easement.   See Murphy, 348 Mass. at 677-679


     14
       In M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 92 (2004),
where we held that the owner of servient property unilaterally
may relocate an easement, we rejected the argument that the
ability to do so would create "uncertainty in property
interests." We reasoned that the resulting uncertainty, if any,
would affect only the rights of easement holders, who have
"merely a right of way" and not "a possessory interest." Id. at
92-93. Here, by contrast, any uncertainty would affect the
rights of the servient landowner, who does have a "possessory
interest." Id.
                                                                  13


(defendant used easement to serve discount store; "neither the

store itself nor [its] parking area" were within lot benefited

by easement).   In this scenario, a court operating under the

current rule could permanently enjoin the company's expanded use

of the easement without any need for further fact finding.

Under the defendant's fact-intensive rule, however, a court

could not issue an injunction without inquiry into whether the

expanded use is "of the sort that should have been contemplated

by the parties, how much damage or interference is likely to

ensue, and whether it is reasonable."   See Restatement of

Property, supra at § 4.10 comment c.    This inquiry would require

a longer process of litigation than would the bright-line rule,

would lead to a less predictable outcome, and might not be

affordable to owners of small servient parcels who are

litigating against defendants with the financial means to

acquire and develop multiple parcels of land.15   See Perdido


     15
       The present litigation is an example of how a bright-line
rule may produce quicker results and greater certainty than a
fact-intensive inquiry. The plaintiffs moved for summary
judgment in March, 2011, and, by the end of 2012, citing Murphy,
a Land Court judge had issued a permanent injunction prohibiting
use of Disputed Way to benefit Diem Lot 5. The next stage of
the litigation -- involving a fact-intensive inquiry whether
opening Disputed Way to the public would unreasonably increase
the burden on the Inn Property -- required three additional
years of litigation, as well as a trial. Even then, the judge's
decision did not put an end to the dispute, as the judge stated
that he might have to revisit his conclusion if the plaintiffs
presented evidence that "public use" of the Disputed Way
easement had "substantially increase[d]."
                                                                   14


Place Condominium Owners Ass'n v. Bella Luna Condominium Owners

Ass'n, 43 So. 3d 1201, 1210 (Ala. 2009) (Murdock, J.,

dissenting) (Perdido) (under fact-based inquiry, developer might

acquire small parcel of land and use it to serve many adjoining

ones; servient landowner at "some point," depending on

circumstances, "may be able to argue that its property is being

overburdened" [emphasis supplied]).

    The defendant points, however, to cases from two other

jurisdictions that had adopted a bright-line rule, but

subsequently moved away from that rule in favor of a more fact-

based analysis.    See Perdido, supra at 1206-1207 (easement

properly used to benefit both lots on which condominium sits);

Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829-232

(1998) (in certain circumstances, easement may serve after-

acquired lot).    These cases do not stand for the proposition

attributed to them.

    In Perdido, supra at 1204, while a deed creating the

easement at issue stated on its face that the easement was to

apply only to one of two lots, the judge concluded that the

easement properly could be used to benefit both lots because the

"parties at th[e] time [the easement was created] contemplated

that the easement would benefit" both.    Similarly, in Abington

Ltd. Partnership, supra at 829, the Connecticut Supreme Court

held that an easement could be used for the benefit of after-
                                                                   15


acquired parcels, but only if the "intent of the parties when

the easement was created" was that it would benefit such

parcels.16   This comports with our rule that the "terms and

conditions under which an easement may be created and the manner

of its exercise are within the control of the creating parties"

(citation omitted).17   See Patterson v. Paul, 448 Mass. 658, 665

(2007).   See, e.g., Pion v. Dwight, 11 Mass. App. Ct. 406, 410

(1981) (easement intended to benefit multiple parcels).    Here,

by contrast, the judge found specifically that, at the time of

its creation, the Disputed Way easement was not intended to

benefit Diem Lot 5.

     Further, we are not persuaded, as the defendant maintains,

that "[c]urrent Massachusetts law creates a substantial

     16
       See Reporter's Note, Restatement (Third) of Property:
Servitudes § 4.11 (2000) ("Connecticut Supreme Court . . .
favor[s] an inquiry into the intent of the parties" and, in
particular, whether "the proposed use and likely development of
the dominant estate [at the time the easement was created]
include[d] the acquisition of additional property that would be
served by the easement").
     17
       The Appeals Court's decision in Bateman v. Board of
Appeals of Georgetown, 56 Mass. App. Ct. 236 (2002), that a
particular easement taken by eminent domain could be used for
after-acquired property, is not to the contrary. As the court
noted, while it was not clear whether the easement was intended
to benefit after-acquired properties, the easement was taken by
eminent domain, and the "principles of interpretation designed
to give effect to the express or implied intent of parties
contracting for or acquiring an interest in land . . . are, in
general, inapplicable to eminent domain proceedings." Id. at
239. Here, by contrast, the easement was created by private
conveyance, and the principle that the creators' intent governs
is applicable.
                                                                    16


impracticality" in circumstances such as these, and that it is

inconsistent with our "public policy favoring socially

productive use of land."    See Martin v. Simmons Props., LLC, 467

Mass. 1, 13 (2014).    As applied here, the traditional rule

allows hikers to make use of both Disputed Way and Twenty Foot

Way; it prevents them only from walking the two paths in a

single loop.   While this may be an inconvenience, it does not

amount to a "substantial impracticality."    In addition, the

current rule will not necessarily prevent parties in the

defendant's position from expanding their use of the easement

insofar as they may attempt to "negotiate a result" with

servient landowners.   See M.P.M. Bldrs., LLC, 442 Mass. at 94.

    In sum, the bright-line rule articulated in Murphy provides

owners of servient property with certainty regarding their

possessory rights.    The benefits of this certainty outweigh the

perceived advantages of a more flexible rule.

                                     Judgment affirmed.
