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Flax v. Smith

479 N.E.2d 183, 20 Mass. App. Ct. 149, 1985 Mass. App. LEXIS 1782
CourtMassachusetts Appeals Court
DecidedMay 31, 1985
StatusPublished
Cited by12 cases

This text of 479 N.E.2d 183 (Flax v. Smith) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flax v. Smith, 479 N.E.2d 183, 20 Mass. App. Ct. 149, 1985 Mass. App. LEXIS 1782 (Mass. Ct. App. 1985).

Opinion

Fine, J.

The parties, owners of adjoining parcels in Jamaica Plain, dispute whether the property of the defendant, Herbert Smith, trustee, 1 is burdened by an easement for water and sewer *150 lines in favor of the property of the plaintiff, Steven Flax. After a trial without a jury, a Superior Court judge ruled that an easement by implication had been created, and he entered orders consistent with that ruling. 2 The area is depicted on the accompanying diagram, the property owned by Flax being designated on the diagram as lot A and the property owned by Smith as lots B and C.

Lots B and C, fronting on St. John Street, contain five dwellings. Lot A, located to the rear of Lots B and C, contains two. Lot A is connected to St. John Street by a strip of land 21 feet wide and 150 feet in length. A hard surface driveway covers most of the strip. The residences on lot A are serviced by water and sewer lines, in existence and in continuous use since 1950, which run under lot C from the main lines on St. John Street.

At all times prior to 1966, the parcels were in common ownership. In 1966, the city of Boston took lot A for nonpayment of taxes. See G. L. c. 60, § 53, as amended by St. 1970, c. 85. The taking was confirmed by the Land Court in a 1974 decree. Flax acquired title from the city on August 29, 1978, having bid on the property at public auction. See G. L. c. 60, § 43, as amended by St. 1935, c. 236. Smith’s predecessor trustees obtained title to lots B and C in 1977 and promptly sought to prevent the easement.

The judge found, on the basis of the evidence, that between the residences on lot A and St. John Street there is rock ledge to a depth of three to ten feet, that sewer and water lines must be at least six feet deep to prevent freezing, and that the drilling and other work required to connect water and sewer lines from *152 the lot A residences directly to the main lines would cost $4,800, exclusive of the cost of the pipes and the connection. He concluded that there is a reasonable necessity for the claimed easement, and he ruled that when the city first acquired an ownership interest in 1966 it was the presumed intention of the city to take the property with the benefit of the existing water and sewer service. Accordingly, the judge determined that there was in existence an easement by implication.

*151

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Bluebook (online)
479 N.E.2d 183, 20 Mass. App. Ct. 149, 1985 Mass. App. LEXIS 1782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flax-v-smith-massappct-1985.