Latka v. Nielsen

26 Mass. L. Rptr. 295
CourtMassachusetts Superior Court
DecidedNovember 23, 2009
DocketNo. 0701480D
StatusPublished

This text of 26 Mass. L. Rptr. 295 (Latka v. Nielsen) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Latka v. Nielsen, 26 Mass. L. Rptr. 295 (Mass. Ct. App. 2009).

Opinion

Tucker, Richard T., J.

The plaintiffs, Michael S. Latka and Nancy J. Latka, commenced this action against the defendants, James Nielsen and Kathy Navid, seeking an order compelling the defendants to remove portions of their septic system that lie beyond the bounds of an express easement over the plaintiffs’ property. The plaintiffs also seek an order compelling the defendants to restore the land upon which they have encroached to its original condition. In lieu of a jury-waived trial, the parties agreed to submit the case upon stipulations of fact. Additionally, the court received oral arguments and memoranda of counsel and observed the property during a view.

STIPULATIONS OF FACT

See attached Stipulation of Facts, incorporated by reference herein.*

DISCUSSION AND RULINGS OF LAW

According to the parties’ stipulations, there is no dispute that portions of the defendants’ septic system lie beyond the bounds of the express easement granted over the plaintiffs’ land. In support of their position that they should not be required to excavate the encroaching portions of their septic system, the defendants have raised the affirmative defenses of easement by implication and easement by necessity.3 Alternatively, they suggest that the court should deny the plaintiffs’ request for relief because their incursion falls within the very narrow exception for de minimis encroachments.

A.Easement by Implication

The defendants contend that, had the common owner of the parcels at the time they were severed known that additional land would be necessary to allow an upgraded septic system in the future, he would have included such land in the easement. They cite to an Appeals Court case, Sheftel v. Lebel, for the proposition that “[t]he basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained ... in light of the attendant circumstances.” 44 Mass.App.Ct. 175, 179 (1988). The defendants have neglected to include a relevant portion of the quote, however, which indicates that the presumed intent of the grantor “is to be ascertained from the words used in the written instrument, construed when necessary in light of the attendant circumstances” (emphasis supplied). Id.

Here, the written instrument establishes the precise boundaries of the easement clearly and unequivocally, and there is no basis for looking beyond the instrument itself to discern some undeclared intent. See Joyce v. Devaney, 322 Mass. 544, 549 (1948) (creation of express easement negates any intention to create easement by implication); Hamouda v. Harris, 66 Mass.App.Ct. 22, 25 (2006), quoting Cook v. Babcock, 7 Cush. 526, 528 (1851) (where language of instrument is “clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different”). “What the parties may have intended cannot override the language of the deed[ ].” Joyce, 322 Mass. at 549-50; see also Zotos v. Armstrong, 63 Mass.App.Ct. 654, 657 (2005).

B.Easement by Necessity

The defendants also maintain that they are entitled to expand the boundaries of the express easement because it is necessaiy for the continued use of their home as a habitable dwelling. “An easement by necessity may be implied if [the court] can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one.” Kitras v. Aguinnah, 64 Mass.App.Ct. 285, 291 (2005).4 “(I]t is the law in this Commonwealth that easements of necessity can only be granted in very limited circumstances of reasonable or absolute necessity.” Goulding v. Cook, 422 Mass. 276, 280 (1996).

This court need not address whether the elements of an implied easement by necessity have been satisfied because, as discussed above, the scope of the septic-system easement is outlined clearly in the deed. See Joyce, 322 Mass. at 549-50. Notwithstanding the defendants’ claim that the common owner of the parcels intended to reserve a large enough easement to allow for septic-system upgrades in the future, courts are not at liberty to ignore the words used in the written instrument to divine some intent to vary the boundaries of the grant. See Sheftel, 44 Mass.App.Ct. at 179.

C.Exception for De Minimis Encroachments

The defendants cite to Goulding v. Cook in support of their argument that expanding the scope of the express easement to accommodate their septic system is appropriate because the encroachment is de mini-mis. In Goulding, the Supreme Judicial Court con[296]*296fronted a case in which two sets of neighbors, the Gouldings and the Cooks, each claimed ownership of a 2,998 square-foot triangle of land that had been deemed the only suitable location for a new septic system that the town had required the Cooks to install. 422 Mass. at 276. After the Land Court denied the Gouldings’ petition for an injunction to prevent the Cooks from entering the contested parcel, the Cooks entered the parcel and constructed their septic system. Id. at 277. More than a year later, the Land Court entered judgment declaring that the Gouldings owned the parcel, but that such ownership was subject to an easement for the Cooks’ septic system “at a price to be negotiated by the parties and with provisions for maintenance, repair and replacement as counsel so agree.” Id. After granting further appellate review of the Land Court’s creation of the septic-system easement and the Appeals Court’s affirmation thereof, the Supreme Judicial Court vacated the Land Court’s decision and ordered that the Cooks remove their septic system and pay damages to the Gouldings. Id. at 280.

Although the Court observed that property rights are not absolute and are subject to certain restrictions for the benefit of others, it added, “[W]e draw the line at permanent physical occupations amounting to a transfer of a traditional estate in land.” Goulding, 422 Mass. at 277-78.5 To hold otherwise, the Court remarked, would be to engage impermissibly in a “type of private eminent domain.” Id. at 278, citing Goulding v. Cook, 38 Mass.App.Ct. 92, 99 (1995) (Armstrong, J., dissenting). While the Court sympathized with the Cooks’ plight, noting that “no doubt the Cooks considered themselves in desperate straits,” it concluded that “theirs was not the kind of desperation that justifies self-help with financial adjustments thereafter.” Id.

Although the draconian remedy granted in Gould-ing hurts, rather than helps, the defendants’ cause, they seek refuge in the principle that “the courts will not enjoin truly minimal encroachments, especially when the burden on the defendant would be veiy great.” See Goulding, 422 Mass. at 279. To that end, the defendants suggest that the offending portions of their septic system pose only a negligible imposition on the plaintiffs land. However, the Goulding Court’s illustration of a minimal encroachment was the classic example where one wall of a twenty-story building, from the tenth story upward, bulges outward across a neighbor’s property line by a maximum of four inches. Id., citing Restatement (Second) of Property §941, comment c.

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Related

Orpin v. Morrison
230 Mass. 529 (Massachusetts Supreme Judicial Court, 1918)
Joyce v. Devaney
78 N.E.2d 641 (Massachusetts Supreme Judicial Court, 1948)
Goulding v. Cook
422 Mass. 276 (Massachusetts Supreme Judicial Court, 1996)
Goulding v. Cook
645 N.E.2d 54 (Massachusetts Appeals Court, 1995)
Feinzig v. Ficksman
674 N.E.2d 1329 (Massachusetts Appeals Court, 1997)
Sheftel v. Lebel
689 N.E.2d 500 (Massachusetts Appeals Court, 1998)
Town of Bedford v. Cerasuolo
818 N.E.2d 561 (Massachusetts Appeals Court, 2004)
Zotos v. Armstrong
828 N.E.2d 551 (Massachusetts Appeals Court, 2005)
Kitras v. Town of Aquinnah
833 N.E.2d 157 (Massachusetts Appeals Court, 2005)
Hamouda v. Harris
845 N.E.2d 374 (Massachusetts Appeals Court, 2006)

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Bluebook (online)
26 Mass. L. Rptr. 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latka-v-nielsen-masssuperct-2009.