CHARLES W. LONG, Trustee, & Another v. COMMONWEALTH OF MASSACHUSETTS & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1006

CHARLES W. LONG, trustee,1 & another2

vs.

COMMONWEALTH OF MASSACHUSETTS & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves whether the Commonwealth holds title to

a strip of land on which lies a portion of the Cape Cod Rail

Trail (the rail trail), a multiuse recreational trail maintained

by the Commonwealth through its Department of Conservation and

Recreation; and, if it does, whether the owner of the land on

either side of the strip has an easement by necessity across it.

After trial, a judge of the Land Court concluded that the

Commonwealth does hold title to the strip and that the owner of

the land on either side does not have an easement by necessity.

We affirm.

1 Under the will Bernice A. Wiley.
2 Henry G. Long, trustee under the will of Bernice A. Wiley.
3 Department of Conservation and Recreation.
Background. Appellants Charles W. Long and Henry G. Long

(the trustees) are cotrustees under the will of Bernice A.

Wiley. This appeal concerns land Bernice Wiley owned at her

death that was owned before 1870 by Stephen A. Hatch. The land

is shown as Lots 1 and 2 on Land Court Plan 32364A. Those lots

are bisected by a strip of land 82.5 feet wide (the strip) that,

from the 1870s to the mid-1960s, was used by the Cape Cod

Railroad Company (the railroad company) and its successors. Lot

1 is west of the strip and is bounded on the west by Route 6.

Lot 2 is to the east of the strip. In January 1981, the Penn

Central Railroad Company conveyed its interest in the entire

former rail line, including its interest in the strip, to the

Commonwealth. Today, located within the strip is a segment of

the rail trail.

It is undisputed that at one time, Hatch owned a parcel of

land that encompassed, inter alia, Lots 1 and 2 and the strip

that now bisects them. On May 6, 1870, Hatch executed an

agreement with the railroad company stating that if it

constructed a railroad somewhere on the Hatch property, he would

execute a deed to the railroad company for that portion of the

land. The railroad company constructed a section of railroad on

the strip, which began operation in December 1870. On May 17,

1871, Hatch executed a deed purporting to convey the strip to

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the railroad company. The 1871 railroad deed was recorded in

March 1872. Hatch died intestate in 1873.

In 1874, "Sarah P. Higgins [daughter of Hatch] and Allen

Higgins husband of Sarah and joining in this conveyance"

executed a deed conveying several parcels of the Hatch property

to John Wiley (Wiley), the predecessor in interest to Bernice

Wiley and, now, the trustees. The deed identified the land to

the west and to the east of the strip as two separate parcels,

described in the deed as bounded by "the Railroad track" and by

"the line of the Railroad," respectively. This 1874 Higgins-

Wiley deed said, at the end of all the descriptions, "Meaning

and intending to convey all Real Estate owned by the late

Stephen Hatch, except the Woodland not herein described."

The trustees filed this case in March 2016, seeking a

declaration that an easement by necessity existed to cross the

strip –- and thus the rail trail -– to reach Lot 2 from Lot 1.4

That claim was (and is) based on the 1871 deed from Hatch to the

railroad company conveying the strip. The trustees argued that,

when Lot 2 was part of a single parcel owned by Hatch, it had

immediate access to Route 6, then known as the Old County Road.

But, they alleged that when the strip was conveyed, that direct

access across Hatch's land was no longer available.

4 They sought in the alternative to quiet title to the
strip.

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During discovery, the parties, remarkably, became aware of

a previously unknown March 16, 1870 deed (the Hatch-Higgins

deed) from Hatch to his son-in-law Allen Higgins (Higgins), by

which Hatch conveyed to Higgins a parcel of land that included

the strip. This was a year before Hatch, by the 1871 railroad

deed, purported to convey that same strip to the railroad

company. The Hatch-Higgins deed was recorded two days after it

was executed. It did not purport to convey anything to Hatch's

daughter, Higgins's wife, Sarah Higgins. Except for the strip,

the 1874 Higgins-Wiley deed included all land purportedly

conveyed to Higgins in the 1870 Hatch-Higgins deed, as well as

other land that was not included in that deed.

The trustees now argue, based on the 1870 Hatch-Higgins

deed, that the strip was never conveyed to the railroad company.

They argue that, despite the metes and bounds descriptions in

the 1874 Higgins-Wiley deed, by language stating that the

descriptions in the deed "[m]ean[t] and intend[ed] to convey all

Real Estate owned by the late Stephen Hatch, except the Woodland

not herein described," it also conveyed the strip to Wiley.

After trial, a judge of the Land Court concluded,

"it is clear that either (1) Hatch intended to hold back
the disputed strip from the 1870 Hatch-Higgins deed so he
could later convey it through the 1871 Railroad Deed, and
mistakenly failed to do so, or (2) Higgins indeed was
intended to take title to the disputed strip in 1870, and
Hatch, by executing the 1871 Railroad Deed was effectuating

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as Higgins' agent the clear intent and expectation of
Higgins that it be so conveyed."

The judge went on to state that if it was the first, reformation

of the 1870 Hatch-Higgins deed would be warranted, and if the

second, the trustees would be estopped from challenging the 1871

railroad deed. In either event, the judge concluded that the

1871 railroad deed was valid to convey title to the strip.

The court also ruled that no easement by necessity arose

when Hatch conveyed the strip to the railroad company because

the trustees did not prove that that conveyance rendered Lot 2

landlocked.

The trustees appealed from the judgment that entered

pursuant to the Land Court judge's decision. For somewhat

different reason than those articulated by the trial judge, we

conclude that he was correct that the trustees are estopped from

denying the validity of the 1871 railroad deed. We also

conclude that there was no error in the trial judge's

determination that no easement by necessity was created for the

benefit of what is now Lot 2 when the strip was sold in 1871.

Discussion. 1. Title to the strip. The trustees argue

that the Land Court judge erred in considering subsequent

instruments when determining the effect of the 1870 Hatch-

Higgins deed. They contend that the 1870 Hatch-Higgins deed is

unambiguous, and therefore must be interpreted without looking

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to extrinsic evidence. According to the trustees, the 1870

Hatch-Higgins deed validly conveyed the entire portion of the

Hatch property containing Lots 1 and 2 and the strip, and it was

recorded a mere two days later, so they argue that the 1871

railroad deed could not have conveyed the strip, as Hatch had no

ownership interest to convey. They also contend -– on the basis

of the slender reed of the phrase "[m]eaning and intending to

convey all Real Estate owned by the late Stephen Hatch, except

the Woodland not herein described" -– that the trustees thus

hold record title to the strip.

We conclude that we need not address this issue, because,

assuming the trustees are correct about the effect of the 1870

Hatch-Higgins deed, they are equitably estopped from relying on

it to argue that the 1871 railroad deed was ineffective.5

Estoppel in pais, or equitable estoppel, is an equitable

doctrine. For it to apply, there must be

"(1) [a] representation or conduct amounting to a
representation intended to induce a course of conduct on
the part of the person to whom the representation is made;
(2) [a]n act or omission resulting from the representation,
whether actual or by conduct, by the person to whom the
representation is made; and (3) [d]etriment to [the
reliant] person as a consequence of the act or omission."
(Quotations omitted).

5 We do not read the judge's decision below to have rested
on estoppel. We think that the question of estoppel was
adequately raised below by the Commonwealth's inclusion of it as
an affirmative defense in its answer.

6
Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct.

419, 426-427 (2008), quoting Turnpike Motors, Inc. v. Newbury

Group, Inc., 413 Mass. 119, 123 (1992).

In this case, the trial judge found as a fact that the

grantors in the 1874 Higgins-Wiley deed -- including Allen

Higgins, who had knowledge of the 1870 Hatch-Higgins deed, and

who, under the trustees' theory, was the title owner of the

strip –- "acknowledged the effectiveness of the 1871 Railroad

Deed, and believed that title to the disputed strip instead was

held by the Railroad Company." Subsequently, for the ensuing

almost 150 years, neither Higgins, nor Wiley, nor any of his

successors in interest challenged the validity of the 1871

railroad deed granting the railroad company the strip in fee

simple. The railroad company and its successors in interest

relied on that deed and its purported conveyance of ownership in

the strip in all their actions with respect to it. This was not

merely a result of inattention or lack of knowledge on the part

of the trustees' predecessor in interest. Rather, as the trial

judge found, Higgins himself "acknowledged" in the 1874 Higgins-

Wiley deed the effectiveness of the 1871 conveyance.

In this highly unusual circumstance, because of the

deliberate decision by the trustees' predecessor in interest,

Allen Higgins, who had all the information about the ownership

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of the strip we do not have today over 150 years later, not to

challenge the 1871 railroad deed, combined with the failure of

any of his successors to raise the issue for another almost 150

years, and the reliance of those who owned the strip if the 1871

railroad deed were effective, the trustees are equitably

estopped from challenging that deed. This ratification of the

conveyance in the 1871 railroad deed, and subsequent forbearance

by Higgins and his successors to set up what title we are

assuming they have, was "equivalent to consent to the

conveyance, and an agreement not to set up [their] title against

it." Tracy v. Lincoln, 145 Mass. 357, 359-360 (1887).

2. Easement by necessity. This leaves the question, then,

whether Wiley and his successors had or have an easement by

necessity over the strip. "A presumption of easement by

necessity arises upon a showing of the following elements: (1)

unity of title; (2) severance of that unity by a conveyance; and

(3) necessity arising from the severance, most often when a lot

becomes landlocked." Kitras v. Aquinnah, 474 Mass. 132, 140,

cert. denied, 580 U.S. 1000 (2016). The first two prongs of the

test are met here; the only question is about the third.

To begin, the Commonwealth argues that the trustees are

barred by the doctrine of laches from asserting the existence of

an easement by necessity. "Laches is an 'unjustified,

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unreasonable, and prejudicial delay in raising a claim.'"

Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 531

(2008), quoting Srebnick v. Lo-Law Transit Mgt., Inc., 29 Mass.

App. Ct. 45, 49 (1990). The unity of title here was severed, at

the latest, in 1874 when Higgins conveyed Lots 1 and 2. Neither

Wiley nor his successors sought to assert the existence of the

alleged easement by necessity until 2016, when the trustees

filed their complaint in this action. One hundred forty-two

years seems like a long time to rest on one's rights,

particularly where, as here, the rights depend on the presence

or absence of roads and paths that no longer exist at the time

the claim is asserted.

Nonetheless, because we are not certain whether a holding

that this claim is barred by laches might have some unintended

consequence, we turn to the merits of the claim.

The trial judge found that the trustees did not meet their

burden of showing that the 1871 railroad deed left Lot 2

landlocked. The judge noted that an 1830 deed conveying the

property at issue in this case -- and more -- to Hatch described

the land as having "a road from Northeast corner of said field

in the old road to the main road." The judge concluded that the

main road was almost certainly the Old King's Highway, and that

the "deed indicates, at the very least, the existence of a road

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connecting the eastern side of what would become the Hatch

Property to the Old King's Highway." He construed the 1830 deed

to appear to convey rights in that road to Hatch. The judge's

full analysis of the possible significance of the 1830 deed, as

well as two earlier deeds from 1802 and 1805 that he found

confirmatory of his reading of the 1830 deed, is included in his

opinion.6 The judge concluded, finally, that the trustees had

not met their burden to show by a preponderance of the evidence

that this possible reading was in error, and that there was, by

1871, no road out of Lot 2.

The trustees argue that the judge erred in failing to

conclude that they are entitled to a presumption of an easement

by necessity, as "[it] is the presumed intent of the parties

that when a parcel of land becomes landlocked as a result of a

conveyance the land conveyed included rights of access."

Kitras, 474 Mass. at 139. The judge, however, concluded

precisely that the trustees have not shown by a preponderance of

the evidence that Lot 2 became landlocked in 1871. The trustees

point to evidence that

6 The judge described an 1802 deed that conveyed an abutting
parcel to Reuben Arey and "described it as being bounded by a
'cartway to the Country road, then Southerly by the Country
road." An 1805 deed conveying another abutting parcel also
referred to "'a cartway to the Northeast Corner of Reuben Arey's
land' that then connects to a public road." The judge concluded
that this cartway was likely the connecting road referenced in
the 1830 deed that connected Lot 2 to the Old King's Highway.

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"at the time of the alleged severance in 1871, Lot 2 was
bounded to the west by the Disputed Strip, to the north by
Blackfish Creek, and to the east and south by the lands of
abutters Cornelius Rogers, Reuben Arey, and Solomon Rich.
The evidence shows that neither the 1870 Hatch-to-Higgins
Deed nor the 1874 Higgins-to-Wiley Deed, both of which
conveyed the land comprising Lots 1 and 2, 'mention the
existence of roads or cart-paths connecting the eastern
boundary of the [conveyed parcel] to Old King's Highway.'
Nor does either deed purport to grant any rights to cross
any of the three abutting properties to the east and
south."

The trustees also note that the Commonwealth's own expert stated

that, if there had been a road leaving the eastern side of Lot

2, given the marshes in that area, the road would have had to

make a U-turn and run south to the Old King's Road, something

not shown on the plans in evidence. Given the totality of the

record, none of this evidence, however, even if credited by the

judge, required a finding that Lot 2 was landlocked.7 We see no

error in the trial judge's reading of the 1830 deed, nor in his

conclusion that the trustees' evidence was insufficient to

7 Nor did it make it "appear" it was landlocked, even if we
were to assume the trustees are correct and that was their only
burden. See Kitras, 474 Mass. at 141 (discussing land that
"appear[s] to be landlocked").

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demonstrate that the 1871 railroad deed rendered Lot 2

landlocked.

Judgment affirmed.

By the Court (Rubin,
Massing & Desmond, JJ.8),

Clerk

Entered: September 23, 2024.

8 The panelists are listed in order of seniority.

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