Opinion
No. 11–P–471.
2012-06-28
James A. RICHARDS v. Glenn D. JACKSON & another.
By the Court (GRASSO, MILLS & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial on September 22, 2009, the Land Court issued a judgment declaring that the plaintiff's property, a twenty-nine acre parcel of land in Tisbury (locus), has the benefit of an easement by necessity over the defendant Jackson's adjoining property (Jackson parcel) to reach Stoney Hill Road, a public way. The Martha's Vineyard Land Bank Commission (Land Bank) moved for a new trial, and its motion was denied by the trial judge. The Land Bank appeals from that denial and from the judgment.
As the parties have not argued the point, we pass over the question of the Land Bank's standing to challenge the judge's determination that Richards possesses an easement of passage over Jackson's property. The Land Bank is a party to the case on the basis of its holding of an agricultural preservation restriction and view easement on the Jackson parcel.
The Land Bank argues that the judge erred because (1) the record did not support the creation of an easement by necessity, and (2) even if such an easement existed, the likely route would have been to the north, over a parcel of land other than Jackson's. We affirm the judgment. After a review of the record, we conclude that the judge was within his discretion to credit the large amount of evidence on the record supporting the existence of the implied easement by necessity created at the time of the 1840 division. It was within the judge's discretion not to credit the assertions made by the defendants' sole testifying expert witness at trial, or those made by the Land Bank's experts in affidavits that were previously submitted at the summary judgment stage. See North Adams Apartments Ltd. Partnership v. North Adams, 78 Mass.App.Ct. 602, 607 (2011).
For the requirements for an implied easement by necessity, see New England Continental Media, Inc. v. Milton, 32 Mass.App.Ct. 374, 378 (1992), and Kitras v. Aquinnah, 64 Mass.App.Ct. 285, 291 (2005).
Although it had the opportunity to do so, the Land Bank did not call these two experts, Robert M. McCarron and Douglas R. Hoehn, to provide live testimony on its behalf at trial.
We note that although the trial judge determined that the easement was located “from Locus to Stoney Hill Road over the Jackson Parcel,” he made no more specific findings regarding the exact placement of the easement. However, “[t]he mere fact that the precise location is undefined does not negate the existence of the right of access.” Cheever v. Graves, 32 Mass.App.Ct. 601, 605 (1992). Furthermore, “the parties are free to locate a previously undefined right of access, or in the absence of agreement by the parties as to its location a court may fix the bounds of a right of way not located by the instrument creating it.” Id. at 605–606, citing Mugar v. Massachusetts Bay Transp. Authy., 28 Mass.App.Ct. 443, 445 (1990).
Judgment affirmed.
Order denying motion for new trial affirmed.