Opinion
16-P-617
04-12-2017
Alan K. HALFENGER v. Juan M. COFIELD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought an action against his neighbor, the defendant, to establish a prescriptive easement with respect to utility lines traversing the defendant's property and to enjoin the defendant from removing or otherwise interfering with the lines. A Superior Court judge granted the plaintiff's motion for summary judgment, and the defendant appealed. We affirm.
Discussion. We review a grant of summary judgment de novo. Coviello v. Richardson, 76 Mass. App. Ct. 603, 607 (2010). The standard of review 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." Ibid., quoting from Siebe, Inc. v. Louis M. Gerson Co., 74 Mass. App. Ct. 544, 548 (2009).
Once the moving party brings forth admissible evidence of a purportedly undisputed fact, the nonmoving party is required to establish a dispute by citing admissible evidence in the record, with mere conclusory statements and general denials being insufficient. See Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974); Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 889-890 (1987) ; O'Rourke v. Hunter, 446 Mass. 814, 821-822 (2006).
Here, the judge granted summary judgment in favor of the plaintiff on the basis that no genuine dispute of material fact existed, concluding that, "[a]lthough the defendant makes conclusory arguments to the contrary, his position is not supported by the admissible evidence in the record." There was no error.
1. Adverse use. To establish a prescriptive easement, see G. L. c. 187, § 2, a claimant must show "the continuous, open, notorious, and adverse use of another's land, conducted under a claim of right, for a period of twenty years." McLaughlin v. Marblehead, 68 Mass. App. Ct. 490, 499 (2007). "Permission by the owner—even implied permission—negates the claimant's ‘adversity,’ but the owner's acquiescence to a claimant's clearly adverse acts does not." Houghton v. Johnson, 71 Mass. App. Ct. 825, 836 (2008). See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 763 (1964).
The defendant argues there was no adverse use with respect to the utility lines because the defendant and his predecessor in title, as owners of the servient estate, had granted permission to the plaintiff and his predecessors in title, as owners of the dominant estate. With the exception of his own declarations that the use was "permissive," the defendant's only support for this claim rests on inadmissible hearsay, which we may not rely upon. See Cullen Enterprises, Inc., supra.
Because the judge determined the easement was appurtenant, the plaintiff was able to tack his period of ownership to the period of his predecessors' prior use to establish the twenty-year prescription period. See Denardo v. Stanton, 74 Mass. App. Ct. 358, 364 (2009).
Specifically, the defendant relies on his affidavit and that of his brother, James E. Cofield, Jr., citing a conversation they had with David Kelly, the son of the servient estate's former owner. According to the affidavits, Kelly stated that "his family had allowed the utility lines to cross their property because it was the neighborly thing to do." Because the defendant offered that out-of-court statement for its truth and it does not fall under any exception to the hearsay rule, the judge did not err in not considering it. Even if considered, the statement was insufficient to establish a genuine dispute of a material fact because Kelly's purported statement does not demonstrate that his family affirmatively permitted the use.
The owner of the servient estate at the time was the Harriet H. Robinson Family Trust, and Kelly was the son of the trustee.
Kelly's statement that his family "allowed" the use is insufficient to rebut the presumption that unexplained use of another's property for more than twenty years is adverse. See Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528, 530-531 (1987).
The defendant also attempts to support his argument against adverse use with the affidavit of Kathi J. Kemper, one of the plaintiff's predecessors in title. In her affidavit, Kemper relates a conversation she had with the defendant regarding the utility lines. She states that the defendant told her "the previous owner had allowed the utility companies to install them and that he would allow them to remain since the lines serviced [Kemper's] property." That statement fails to raise a genuine dispute of material fact. The defendant acknowledges in his own affidavit that the conversation with Kemper took place prior to his ownership of the property when he was merely leasing it as a tenant. Because he was not the "true owner," any affirmative permission he may have given at the time is irrelevant for purposes of adverse use. See Totman v. Malloy, 431 Mass. 143, 145 (2000) ("The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights").
The defendant's argument regarding his execution of a lease with "no restrictions ... on the aerial rights of the Property" is irrelevant to an analysis of whether he was the true owner. See Totman, supra.
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Accordingly, we agree with the judge's conclusion that "there is, at most, evidence that the defendant acquiesced to the passage of the transmission lines over his Property, not evidence that he affirmatively gave permission for the use. Therefore, there is no genuine factual dispute as to whether the plaintiff's use of the Property has been adverse."
2. Open and notorious use. The defendant next claims that because he had no knowledge of the plaintiff's actual use of wire-based services and because the use of wire-based services in general has declined in recent years, the plaintiff's use of the utility lines was not open or notorious. We disagree.
The mere existence of the utility poles and transmission lines reflects their use. See Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528, 530-531 (1987). The principle underlying the open and notorious requirements is simply to provide the true owner of the servient estate with constructive notice of adverse use. See Lawrence v. Concord, 439 Mass. 416, 421-422 (2003) (discussing open and notorious use in the context of a claim of adverse possession). As the defendant acknowledges, the structures are plainly visible, and there is no claim of any attempt to conceal them. See ibid. Therefore, no genuine dispute exists as to whether the plaintiff's use was open and notorious.
3. Continuous use. Finally, the defendant's claim that the plaintiff's use was not continuous because the height of the utility lines changed over time is meritless. To that end, the plaintiff was required to show that the path was "confined substantially to the same route, and to substantially the same purpose." Stone v. Perkins, 59 Mass. App. Ct. 265, 266 (2003), quoting from Hoyt v. Kennedy, 170 Mass. 54, 56-57 (1898). The defendant does not dispute that, as the judge stated, "the lines have run from the same utility pole to the same location on the plaintiff's house, and, thus, have continued to occupy roughly the same position for the twenty-year period."
Assuming that the defendant's actions did in fact cause changes to the height of the utility lines throughout the years, he nonetheless fails to raise a genuine dispute of material fact. A servient estate holder "may relocate the easement ... if the proposed change in location does not significantly lessen the utility of the easement, increase the burdens on the [dominant estate holder's] use and enjoyment of the easement, or frustrate the purposes for which the easement was created." M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 94 (2004). Neither the plaintiff nor the defendant claims that the defendant's, or anyone else's, altering of the utility lines impacted the plaintiff's use in any way. Thus, there is no genuine dispute concerning continuous use.
Conclusion. Based on the foregoing, there was no error in the judge's allowance of the plaintiff's motion for summary judgment.
Judgment affirmed.