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15-P-828                                               Appeals Court

                DON PERRY    vs.   ADA NEMIRA & another.1


                               No. 15-P-828.

          Suffolk.       October 5, 2016. - January 30, 2017.

               Present:     Meade, Milkey, & Kinder, JJ.


Easement. Real Property, Easement, Deed, Adverse possession.
     Way, Private.



     Civil action commenced in the Land Court Department on
December 21, 2011.

     The case was heard by Alexander H. Sands, III, J.


     Andrew S. Lee (Kenneth D. Wacks & Michelle A. McHale also
present) for the defendants.
     Don Perry, pro se.


     MEADE, J.       The plaintiff, Don Perry, and the defendants,

Tomas and Ada Nemira,2 own partially abutting properties known as

9B Maple Lane and 12 Maple Lane, respectively, located in a


     1
         Tomas Nemira.
     2
       For ease we refer to the Nemiras together, although the
property at issue is held only in Tomas's name.
                                                                   2


densely developed residential area of Hull.   When the Nemiras

fenced off what they believed to be part of their property,

controversy arose regarding the parties' rights in and over

three right of ways (ROW) abutting or in the vicinity of the

parties' properties and leading to the public way, formerly

known as Center Hill Avenue.   Perry commenced this action

claiming that (i) the fence blocks his right of ways, (ii) he

and his predecessors have incorporated a portion of what have

been called ROW 1 and ROW 3 into his front yard, and any rights

the Nemiras had in those portions of ROWs 1 and 3 have been

extinguished by adverse possession, (iii) he has acquired a

prescriptive easement to turn around and park on certain

sections of the Nemira property, and (iv) certain boundary lines

in the deed description to the Nemira property and on a site

plan dated November 24, 2010, are wrong.   Perry sought an order

to restrain the Nemiras from maintaining a fence on any portion

of the disputed ROWs or any portion of Perry's property.

    For their part, the Nemiras denied that Perry has acquired

any prescriptive rights to use their property or block ROWs 1

and 3.   They also denied that their fence blocked Perry's right

of way, and in counterclaims, they contended that Perry has no

vehicular right of way over ROW 3 or if he did, it has been

extinguished by nonuse.
                                                                   3


    Following a trial, preceded by a view, the judge drafted a

careful and detailed decision determining the rights of the

parties.   The parties' deeded rights over the ROWs became a

primary issue at trial and the judge explored that issue in

detail in his decision.   The judge specifically noted that the

parties did not claim and he did not consider prescriptive

rights over the ROWs, other than Perry's claim that he has

extinguished the Nemiras' rights over portions of ROWs 1 and 3

by adverse possession.    Perry appeals from so much of the

decision that determines he has failed to show that he has

acquired certain property by adverse possession, he has no right

to park on or turn around on the Nemira property, and he has

only utility rights and no access rights in ROW 3, as well as

from the judge's adoption of a 1911 plan.   The Nemiras appeal

from the determinations that they have no deeded right to pass

and repass by vehicle over ROWs 1 and 3 and that if they did,

their right has been partially extinguished by Perry's adverse

possession.   They also appeal from the conclusion that their

right to pass over ROW 2 does not include a utility easement.

    Our review of the record reveals no error in the judge's

determinations that Perry (i) has acquired a portion of ROW 1

and the southern terminus of ROW 3 by adverse possession, and

(ii) has failed to prove he has acquired a prescriptive easement

to park on or turn around on the Nemiras' property.   Those
                                                                        4


determinations were based on credibility determinations of

conflicting evidence and a view of the area involved and its

topography, and have not been shown to be clearly erroneous.      We

write only to clarify the parties' deeded easement rights, and

other errors discussed below.

     1.    Background.   We briefly describe the properties and

ROWs at issue.     The Nemira property and part of the Perry

property are shown on a plan dated August, 1911, and recorded in

the Plymouth registry of deeds in plan book 1, page 761 (the

1911 plan).    The 1911 plan depicts six lots and a single public

way, Center Hill Avenue, which runs in a north/south direction

along the eastern boundary of the property shown on the plan.

George Hall owned all six lots when he commissioned the plan in

1911.     The public way abuts only lots 5 and 6.   What

consistently have been referred to as ROW 1 and ROW 3 in this

litigation run perpendicular to each other and form an "L" on

the plan.     ROW 1 is shown as a twelve-foot ROW, beginning at an

intersection with the public way between lots 5 and 6 and

proceeding westerly 266 feet, forming the horizontal part of the

L.   Proceeding from the west, the northerly bound of ROW 1

consecutively abuts the southern bound of lots 5, 4, and 3.       The

southerly bound of ROW 1 abuts the northern bound of lot 6 and

shows a one-foot strip between its southern bound and the

northern bound of land of others, a portion of which is now
                                                                    5


owned by Perry.     As ROW 1 proceeds west, it ends at its

intersection with ROW 3, at the southeasterly corner of lot 2.

ROW 3, the vertical part of the L, is shown as running from

south to north and is comprised of five feet from lot 3's

western boundary and five feet from lot 2's eastern boundary.

It is apparent from viewing the 1911 plan that lots 2 and 3

would be landlocked without a right of way over ROWs 1 and 3 and

lot 4 would be landlocked without a right of way over ROW 1.

    ROW 2 was first created in a 1941 deed when lot 3 was

divided into northern and southern sections, lots 3A and 3B,

respectively.   It is described in the deed as running from west

to southeast over the northerly section of lot 3B and then

southerly along lot 3B's eastern border to ROW 1.     The deed

grants lot 3A an express access easement over ROW 2.     The deed

conveys lot 3A with reference to the 1911 plan and a plan

recorded on September 20, 1941 (the 1941 plan), which shows lot

3A bound by ROW 3, labeled as "Right of Way," and a "Tarred Way"

in the same location as the described west to southeast portion

of ROW 2.

    The Nemiras own lot 2 and the northern part of lot 3 on the

1911 plan.   Perry owns the southern portion of lot 3, including

ROW 2.   Perry also owns lot 9B, which is located across from ROW

1 to the south and derives from property formerly owned by

Franklin Croffut.    Access to the lots today is over a single
                                                                          6


ROW, known as Maple Lane, which the judge concluded is ROW 1 as

shown on the 1911 plan.         Entering from the east, it turns at the

eastern boundary of lot 3B and continues along the approximate

location of ROW 2.       The judge found that the portion of ROW 1

that continues west of the intersection with ROW 2 has a four-

foot ledge drop and is blocked with a tree, along with a wall

constructed by Perry.

       The version of the original Croffut deed transferring

property that includes Perry's lot 9B contained in the record is

indecipherable.       There appears to be no dispute, however, that

the Croffut deed and subsequent deeds describe a twelve-foot way

abutting lot 9B to the north, referred to as "North Croffut

Way."       The parties stipulated that the original Croffut deed

grants Hall's predecessor the right to use the passageways

bordering on the Croffut property.         This includes North Croffut

Way.

       2.    Discussion.   a.    ROW 1 and North Croffut Way.   Before

we turn to the language of deeds purporting to grant easements

over ROWs 1, 2, and 3, we first address Perry's argument that

the judge erred in adopting the 1911 plan because the lots shown

extend as much as twenty feet farther south than the metes and

bounds description in the originating deeds into George Hall.

Perry contends this is clearly shown on a 1940 Land Court plan

registering land adjacent to Perry's lot 9B and means that Hall
                                                                    7


did not own the land on which he laid out ROW 1 and upon which

he granted easements.

       The judge found that the passageway that became ROW 1 and

North Croffut Way were separate ways and, over the years, "have

been confused with each other, and were likely assumed to

represent the same right of way."     He concluded that North

Croffut Way has been incorporated into the northern twelve feet

of lot 9B and its eastern abutters.     Maple Lane, the judge

concluded, is largely in the location depicted as ROW 1 on the

1911 plan, except that to the east of the parties' properties it

has shifted south onto lot 6 on the 1911 plan.

       From our review of the record, it appears that there at

least is overlap of what is shown as ROW 1 on the 1911 plan and

North Croffut Way.    It may well be that Hall incorporated North

Croffut Way into ROW 1.    The judge was not asked to determine

the fee in ROW 1, however, and the record, in any event, is

inadequate to resolve that issue.    At a minimum, we would need

to have the Land Court records on the registration of lot 9, to

the east of Perry's lot 9B.    We conclude we need not dwell on

this issue, however, because even if ROW 1 overlaps with North

Croffut Way, the original Croffut deed gave the owner of the

property depicted on the 1911 plan an easement over the

passageways abutting the Croffut parcel, including North Croffut

Way.    Even if he improperly included some or all of North
                                                                       8


Croffut Way in the 1911 plan as portions of lots 3 and 4, which

we need not decide, Hall had easement rights over it for the

benefit of all of his land and was free to grant easements over

ROW 1 as depicted on the 1911 plan to the properties shown on

the 1911 plan.   On this record, there is no merit to Perry's

argument that the easements granted over ROWs 1 and 3 are

invalid.

    b.     Easements over ROWs 1 and 3.     We review the judge's

determination regarding the existence of an easement in private

ways under a "clearly erroneous" standard.       Boudreau v. Coleman,

29 Mass. App. Ct. 621, 623 n.4 (1990).      The burden is on the

party seeking to prove an easement.       Id. at 629.

    We accept, without deciding, the judge's conclusion that

any preexisting easements over ROWs 1 and 3 had merged when all

the property on the 1911 plan came into the common ownership of

George Hall.   See Williams Bros. Inc. of Marshfield v. Peck, 81

Mass. App. Ct. 682, 684-685 (2012).   Thus, if an easement over

ROWs 1 and 3 were to become appurtenant to the six lots depicted

on the 1911 plan, they needed to be revived by Hall.

    Each of the lots was conveyed both with reference to the

1911 plan and by a metes and bounds description.        In addition,

contrary to the judge's determination, we conclude that, as

Perry argues, the deed to lot 3 included an express general
                                                                    9


right of way over both ROW 3 and ROW 1.3   When lot 3 was divided

into the northern section, lot 3A, now owned by the Nemiras, and

the southern section, lot 3B, now owned by Perry, the easements

over ROWs 1 and 3 remained appurtenant to lots 3A and 3B.

Unless otherwise stated in the deed, "rights and appurtenant

easements pass by grant without specific mention."     Cheever v.

Graves, 32 Mass. App. Ct. 601, 606 (1992).    See G. L. c. 183,

§ 15.    Thus, even though easements over ROWs 1 and 3 were not

specifically mentioned when lot 3A was separated from lot 3B,

the easements remained appurtenant to both lots.     Rice v.

Vineyard Grove Co., 270 Mass. 81, 86 (1930) (easement

appurtenant to whole lot and to any part into which it was later

subdivided unless some additional burden would thereby be placed

on servient estate).   There is no argument that the easements

would be overburdened by access from lots 3A and 3B.

     The deed to lot 2, which we set out in note 4, infra, is

not as precise.4   The judge interpreted it as providing a utility


     3
       Lots 3, 4, and 6 were conveyed by the same deed; the deed
expressly provides that the lots are conveyed "[t]ogether with
the benefit of and subject to all rights of all persons entitled
to use" ROW 1 to the public way and over ROW 3, both as shown on
the 1911 plan. The deed separately reserves an access easement
for the grantor and provides that the premises are conveyed with
the benefit of and subject to a utility easement over ROWs 1 and
3.
     4
       Lot 2 is described as "a certain parcel of land, with the
buildings thereon," "being Lot 2 on [the 1911 Plan]," followed
by a metes and bounds description. The deed to lot 2 describes
                                                                    10


easement only over ROWs 1 and 3 and no right of access over them

for lot 2, effectively rendering lot 2 landlocked.    To be sure,

the language is awkward.    The phrases "with the benefit of and

subject to the rights" in ROWs 3 and 1 "from said lot 2 to

Centre Hill Avenue, as shown on [the 1911 plan]," are consistent

with the general easement the grantor had reserved in the

previous sentence.    The grantor did not expressly reserve a

utility easement.    Thus, not only does the interpretation of the

deed as providing only a utility easement landlock lot 2, it

also means that the grantor made the conveyance subject to a

utility easement that was not reserved and failed to make it

subject to the general easement that was reserved.    With no

known entity reserving a utility easement, the words "subject

to" are superfluous.

    The general principle governing the interpretation of deeds

is that the intent of the parties is "ascertained from the words

used in the written instrument interpreted in the light of all


the easterly bound as lot 3 but further provides that "[a]s much
of the easterly boundary of said parcel as is included in a ten
foot passageway as shown on said plan, is conveyed, subject to
the rights of all persons entitled to use the same as part of
said passageway and with the reservation to the grantor, and his
heirs, . . . to use the same as part of said passageway in
common with others entitled to rights therein. And said parcel
is conveyed with the benefit of and subject to the rights in
said passageway ten feet wide [ROW 3], and in a passageway
twelve feet wide from said Lot 2 to Centre Hill Avenue [ROW 1],
as shown on said plan, for the purpose of drainage, laying wires
water pipes, sewers or gas pipes [utility easement]."
                                                                     11


the attendant facts."    Hickey v. Pathways Assn., Inc., 472 Mass.

735, 744 (2015), quoting from Suburban Land Co. v. Billerica,

314 Mass. 184, 189 (1943).   Given that lot 2 was conveyed with

"buildings thereon," which the grantor and grantee presumably

intended the grantee to reach, and with reference to the 1911

plan which clearly identifies right of ways to the public way,

it seems quite likely that the grantor intended to insert an

"and" before the "for the purpose" of installing utilities

language when conferring easement rights over ROWs 3 and 1.     We

note that the judge determined that when the grantor transferred

lot 1 and granted a utility-only easement over its western

border, the grantor expressly noted that the easement was "not

for use as a passageway."    Significantly, no such notation was

made here.    Moreover, a utility easement is utterly useless to

the owner of lot 2 if the lot is landlocked.    In addition, all

of the other lots were conveyed with a right of way to the

public way.    Finally, it would be anomalous to conclude that the

grantor intended to reserve an access easement over lot 2's

portion of ROW 3 for the grantor but intended no access easement

for lot 2 itself.   For all of these reasons, we think the

express language of the deed to lot 2, read in light of the

attending circumstances, may reasonably be interpreted as

conferring an express access easement over ROWs 1 and 3 along

with a utility easement.
                                                                   12


    Even if lot 2 does not benefit from an express access

easement over ROWs 1 and 3, however, we conclude it enjoys an

easement by implication from the deed's reference to the 1911

plan, which shows the right of ways leading to the public way.

"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."     Reagan v.

Brissey, 446 Mass. 452, 458 (2006) (quotation omitted).    While

it is true that "where land is conveyed with reference to a

plan, an easement other than an easement of necessity is created

only if clearly so intended by the parties to the deed," here

the necessity of an access easement is readily apparent from

review of the plan and the judge's finding that the lot would be

landlocked without a right of way over ROWs 1 and 3.     Scagel v.

Jones, 355 Mass. 208, 211 (1969) (quotation omitted) ("need of

access to the interior house lots shows the clear intention of

the parties that the strip be used for that purpose").    See

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

(1980); Estes v. DeMello, 61 Mass. App. Ct. 638, 645 (2004).

See also Dubinsky v. Cama, 261 Mass. 47, 55 (1927) (when plan is

of small parcel laying out nine lots without numerous streets

laid out upon it, right of ways over passageways shown on the

plan are manifest and there is no need to examine presumed

intention of parties).
                                                                   13


    Even if it were necessary to examine the intent of the

parties as determined by considering all the circumstances in

which the deed was made, however, all of the evidence here

demonstrates the clear intention that the ways shown on the 1911

plan leading to lot 2 be used for access.   "[A] conveyance of

land that renders the grantor's remaining land landlocked

ordinarily gives rise to an easement by necessity, based on the

presumed intention of the grantor to retain access to his

remaining land."   Adams v. Planning Bd. of Westwood, 64 Mass.

App. Ct. 383, 390 (2005).   The judge placed great weight on the

maxim "expressio unius est exclusio alterius" (to express or

include one thing implies the exclusion of the other), in

concluding that the express inclusion of a utility easement

meant that the omission of an access easement was intentional.

See Kitras v. Aquinnah, 474 Mass. 132, 143 (2016).   In Kitras,

however, there were no ways shown on the plan referred to in

deeds to the grantees and there was a custom in place where

easements over all of the property shown on the plan were

understood to exist for the Native American grantees.   The facts

here are markedly different.   Absent an easement over ROWs 1 and

3, lot 2 and the buildings thereon would be inaccessible,

despite passageways clearly shown on the plan leading to the six

lots from the public way.   Given that all other factors support

an easement by necessity, we conclude that the absence of an
                                                                    14


express right of way was the result of careless drafting rather

than the intent of the parties.

    Although we conclude that Perry has deeded access and

utility easements over ROWs 1 and 3 benefiting his lot 3B, and

that the Nemiras have deeded access and utility easements over

ROWs 1 and 3 for the benefit of lots 2 and 3A, the judge

determined that Perry has extinguished by adverse possession the

Nemiras' rights over a portion of ROW 1 between lot 3B and 9B

and ROW 3 where it intersects with ROW 1.    There was testimony

credited by the judge that for well over twenty years, these

areas have been incorporated into the front yard of Perry's

property and trees and topography made that portion of ROW 1

impassable.   Having based his conclusion on credibility

determinations of conflicting evidence and a view, we cannot say

the judge erred.   ROW 1 has been extinguished, however, only

over the portion of the way that has been blocked.    It has not

been extinguished over the portion of ROW 1 which intersects

with ROW 2 and leads to the public way.    Similarly, the right of

way over most of ROW 3 has not been extinguished; only its

southern end has been extinguished.

    c.   Easements over ROW 2.    It is uncontested that lot 3A

enjoys an easement over ROW 2.    The right of way over ROW 1

remained appurtenant to lot 3A when lot 3 was divided.     Thus,

lot 3A is accessible from the public way.    Lot 2 does not enjoy
                                                                  15


an express easement over ROW 2.   It would appear that for well

over twenty years, ROW 1 to the point where it joins with ROW 2

and Row 2 have been used to access all of the Nemira property,

particularly lot 2 on which a house had been situated for many

years.   Perry concedes in his brief that the Nemiras have an

easement over ROW 2 to reach their land and does not appear to

limit it to lot 3A.

    Perry argues that any easement over ROW 2 for the benefit

of the Nemira property is for access only and that they enjoy no

utility easement over ROW 2 because the ROW is not shown on a

recorded plan.   General Laws c. 187, § 5, as amended by St.

1988, c. 334, § 6, provides that "owners of real estate abutting

on a private way who have by deed existing rights of ingress and

egress upon such way or other private ways shall have the right

by implication to place, install or construct in, on, along,

under and upon said private way or other private ways pipes,

conduits, manholes and other appurtenances necessary for the

transmission of gas, electricity, telephone, water and sewer."

We have held that the statute applies to easements, even

driveway easements.   Barlow v. Chongris & Sons, Inc., 38 Mass.

App. Ct. 297, 299 (1995).   The statute contains no requirement

that a private way be shown on a recorded plan in order for § 5
                                                                  16


to apply.5   We conclude, therefore, that the Nemiras' easement

over ROW 2 for the benefit of lot 3A includes a utility easement

pursuant to G. L. c. 187, § 5.

     As discussed, Perry's lot 3B has an easement over ROWs 1

and 3.    ROW 2 is entirely on his property and as owner of the

servient estate, he is entitled to make such use of his property

that is not inconsistent with or does not materially interfere

with the easement.    Western Mass. Elec. Co. v. Sambo's of Mass.,

Inc., 8 Mass. App. Ct. 815, 818 (1979).6    The judge correctly

concluded that any fencing recently installed by the Nemiras

which blocks ROWs 2 or 3 must be removed.

     3.   Conclusion.   To summarize, we reverse so much of the

judgment that orders that (i) North Croffut Way is a separate

right of way from ROW 1 as the record is insufficient to draw

that conclusion; (ii) the Nemiras have no deeded right to use

ROW 1 for access for the benefit of lot 2 or 3A; (iii) Perry's

right to use the portion of ROW 1 east of lot 3B for the benefit

of lot 3B is limited to utilities only; (iv) neither party has

any deeded right to use ROW 1 east of lot 3B for access; (v) the

Nemiras' right to use ROW 2 for the benefit of lot 3A is for


     5
       To the extent a recorded plan is required, at least a
portion of ROW 2 is shown on a plan recorded with and referred
to in the deed that created ROW 2.
     6
       Perry does not argue on appeal that he has rights over ROW
1 or ROW 3 to benefit lot 9B. The argument is therefore waived.
                                                                  17


access only and does not include utilities; and (vi) the

Nemiras' right to use the portion of ROW 3 located on lot 3B is

for utilities only.   In all other regards, the judgment is

affirmed.   The matter is remanded for the entry of a revised

judgment with new orders consistent with this opinion.

                                    So ordered.
