WILLIS A.M. HENDLEY & Another v. ADAM DARISSE & Another.

• Court: Massachusetts Appeals Court
• Decided: May 12, 2026
• Docket: 25-P-0615
• Status: Unpublished

Opinion

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

25-P-615

WILLIS A.M. HENDLEY & another1

vs.

ADAM DARISSE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In the context of a neighbors' dispute, we consider the

interpretation of two easements, one express and one implied.

We affirm.

Background. In 1999, a developer received approval for the

ten-lot subdivision that included the plots of land at issue.

The defendants' predecessor in title, Debra Simon, acquired her

property in August 2000 and the plaintiffs purchased an

adjoining parcel in May 2001. Unbeknownst to either purchaser,

the lot conveyed to Simon was configured such that it had

insufficient frontage and was so close to the septic system on

1 Rubina Hendley.

2 Lauren Darisse, aka Lauren Munighan. the plaintiffs' lot it rendered that septic system noncompliant

with the Massachusetts Environmental Code.

In 2004, the plaintiffs and Simon attempted to solve both

problems with a land swap. The agreement was memorialized in a

plan endorsed as approval not required under subdivision control

law (ANR plan) and deeds, all of which were recorded. In the

deed from Simon to the plaintiffs (2004 deed), Simon gave the

plaintiffs some of her land near the plaintiffs' septic system,

bringing the plaintiffs' system into compliance. In exchange,

the plaintiffs gave Simon some of their land along the street,

providing frontage.

Also included in the 2004 deed were two easements from

Simon to the plaintiffs. Easement I, shown on the ANR plan as

"Proposed Septic Access & Grading Easement," was "located on a

trapezoid-shaped, grassy piece of land at the front of the

[defendants'] property." Easement II, shown on the ANR plan as

"Proposed Septic Access Easement," was "located on a

rectangular-shaped, grassy piece of land that is approximately

95 percent on the [defendants'] property's driveway" and was

"adjacent to the [plaintiffs'] property's septic system slope-

retaining wall." The parties do not dispute the scope of

Easement II.

Buried under the land conveyed by Simon to the plaintiffs

was "approximately 45 feet" of her underground electric and

2 telecommunications utilities. Neither party was aware of the

location of the underground utilities at the time of conveyance,

and the 2004 deed does not mention them.

The defendants purchased their property from Simon in

December 2016. At some point thereafter, a dispute arose

between the parties about the scope of the easements and each

party's access rights. The plaintiffs brought the dispute to

the Land Court, and the case was tried before a judge. Relevant

to this appeal, the judge found that Easement I benefited the

plaintiffs' property and burdened the defendants' property "for

the purposes of grading and for access in connection with the

installation, repair, and maintenance of the septic system

servicing the [plaintiffs'] property," and that the plaintiffs

did not have access rights over the easement for any purpose

other than those related to the septic system. The plaintiffs'

access to the easement areas was limited to "any work reasonably

necessary for them to exercise their permissible easement

rights." The judge also declared "that an implied easement for

the [defendants'] utilities benefits the [defendants'] property

and burdens the [plaintiffs'] property." The plaintiffs

appealed.

Discussion. As an initial matter, the defendants maintain

that the notice of appeal was premature, and our analysis should

end there. We disagree. The judgment entered on February 7,

3 2025, and the amended judgment entered on March 4, 2025. Each

time, the plaintiffs filed a timely notice of appeal. Although

the plaintiffs filed a motion pursuant to Mass. R. Civ. P. 60,

365 Mass. 828 (1974), contemporaneously with the second notice

of appeal, that motion did not result in the entry of a new

judgment; indeed, the judge noted that the "[j]udgment stands."

Even if the notice of appeal had been premature, we would

exercise our discretion to proceed to the merits because the

issues are important and fully briefed, and we discern no

prejudice to the defendants. See Creatini v. McHugh, 99 Mass.

App. Ct. 126, 128 (2021). See also Reporter's Notes to 2025

amendment to Mass. R. A. P. 4 (a) (2) (B), Massachusetts Rules

of Court, at 242 (Thompson Reuters 2026) (eliminating "trap for

the unwary" in cases where notice of appeal filed before

disposition of timely postjudgment motions).

Turning to the merits, the plaintiffs assert that Easement

I was not limited to septic system access and instead gave them

general-purpose access. They also claim exclusive maintenance

rights with respect to Easements I and II. Finally, they

contend that no implied easement exists with respect to the

defendants' underground utilities.

1. The scope of Easement I. To determine the scope of

Easement I, we must "determine the presumed intent of the

grantor from the words used in the deed[], 'construed when

4 necessary in the light of the attendant circumstances.'"

Hamouda v. Harris, 66 Mass. App. Ct. 22, 25 (2006), quoting

Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). "The

interpretation of a deed presents a question of law, which we

review de novo." Skye v. Hession, 91 Mass. App. Ct. 423, 425

(2017). We review the findings of fact, made after a bench

trial, for clear error. H1 Lincoln, Inc. v. South Washington

St., LLC, 489 Mass. 1, 13 (2022).

"When the language of the applicable instruments 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.'" Hamouda, 66

Mass. App. Ct. at 25, quoting Cook v. Babcock, 61 Mass. 526, 528

(1851). "[T]he words themselves remain the most important

evidence of intention, but those words may be construed in light

of the attendant circumstances and the objective circumstances

to which [the words refer]" (quotations and citations omitted).

Hamouda, supra.

We begin with language used in the 2004 deed, the

instrument granting Easement I. See Sheftel, 44 Mass. App. Ct.

at 179. It states, in relevant part:

"Easement I -- an access and grading easement in the area shown on the aforesaid [ANR plan] as 'Proposed Septic Access & Grading Easement', said aforementioned easement area containing 1,129 s.f. of land, more or less, as shown on said [ANR plan].

5 . . .

Easement I is for the purpose of grading and regarding [sic] the Grantees' Septic Easement Area, and access thereto, in connection with the installation, repair and maintenance of the subsurface waste disposal system servicing and located on Grantees' Lot."

"[R]ead in its proper context, as part of [the 2004 deed]

as a whole," Sheftel, 44 Mass. App. Ct. at 181 n.8, Easement I

grants the plaintiffs access rights solely for septic-system-

related purposes. We agree with the trial judge that the 2004

deed "is clear and explicit," Cook, 61 Mass. at 528, in its

description of Easement I: it "is for the purpose of grading

and regarding [sic] [the plaintiffs'] Septic Easement Area."

The ANR plan referenced by the 2004 deed confirms our conclusion

-- it identifies Easement I as a "Proposed Septic Access &

Grading Easement." See Labounty v. Vickers, 352 Mass. 337, 344

(1967) ("A plan referred to in a deed becomes a part of the

contract so far as may be necessary to . . . determine the

rights intended to be conveyed" [citation omitted]).

Though we can "begin and end our inquiry" with "the

explicit language of the easement as set forth in [the 2004

deed]," Sheftel, 44 Mass. App. Ct. at 179, we note that the

attendant circumstances also support our conclusion. The

plaintiffs' letters to the city concerning the 2004 deed express

a desire to bring their septic system into compliance with the

6 addition of a "new small area at the street right-of-way line

deeded for septic access and grading," referring to the area of

Easement I. The trial judge also credited Simon's testimony at

trial that she "intended to grant Easement I . . . to the

[plaintiffs] for the sole purpose of accessing the easement

areas in connection with maintaining the septic system." What

is more, one of the plaintiffs testified at trial that the 2004

deed was executed to "fix the problems with our septic system."

See White v. Hartigan, 464 Mass. 400, 414 (2013) ("due regard

shall be given to the opportunity of the trial court to judge of

the credibility of the witnesses" [citation omitted]).

The defendants assert that whether Easement I is a general

access easement is not properly before us. We disagree.

According to the joint pretrial memorandum, "the parties knew

the evidence bearing on the unpleaded issue was in fact aimed at

that issue and not some other issue the case involved." Jensen

v. Daniels, 57 Mass. App. Ct. 811, 816 (2003).

The plaintiffs' remaining contentions about the scope of

Easement I relate to particular facts found by the judge.

Because the evidence and inferences support those findings, we

discern no error. See White, 464 Mass. at 414.

2. The plaintiffs' easement access rights. The

plaintiffs' assertion of exclusive maintenance and surface area

7 rights over Easement I and Easement II is similarly

unpersuasive.

The language of the 2004 deed governs the plaintiffs'

responsibility to maintain the easements. See Sheftel, 44 Mass.

App. Ct. at 179. The 2004 deed provides that "by accepting

these Easements," the plaintiffs "hereby agree . . . to be

responsible for the repair, loaming, seeding and maintenance of

the Easement Areas." This provision defines the plaintiffs'

maintenance responsibilities by reference to the work reasonably

rights. As we explained above, the plaintiffs' rights with

respect to Easement I are for grading and other activities in

connection with the installation, repair, and maintenance of the

septic system. The plaintiffs do not dispute that their rights

with respect to Easement II are "limited to . . . access to the

septic system and for the inspection, maintenance, repair, and

replacement of the slope-retaining wall."

3. The implied easement for underground utilities. "One

claiming the benefit of an easement bears the burden of proving

the existence of that easement on the servient estate." Hickey

v. Pathways Assn., 472 Mass. 735, 753-754 (2015).

The problem of the defendants' utilities being under the

plaintiffs' land arose when Simon conveyed the relevant piece of

property to the plaintiffs in the 2004 deed. Before the

8 conveyance, those utilities were under the defendants' land.

When a parcel of land formerly under common ownership is severed

into two or more parts, and prior to severance a use was made of

one part for the benefit of another, an implied easement may be

created to continue the prior use. See Cummings v. Franco, 335

Mass. 639, 642-644 (1957).

An implied easement can be "found in a presumed intention

of the parties, to be gathered from the language of the

instruments when read in light of the circumstances attending

their execution, the physical condition of the premises, and the

knowledge which the parties had or with which they are

chargeable" (citation omitted). Labounty, 352 Mass. at 344.

Evidence of intent may be inferred from prior open and obvious

use consistent with the claimed easement. Mt. Holyoke Realty

Corp. v. Holyoke Realty Corp., 284 Mass 102, 108 (1933). "The

controlling question is whether the circumstances of the

severance demonstrate that the parties intended that the owner

of one of the resulting parcels be able to make some use of the

other parcel even though no express easement was recorded."

Lavoie v. McRae, 102 Mass. App. Ct. 14, 19 (2022). If "during

the common ownership of a parcel of land an apparent and obvious

use of one part of the parcel is made for the benefit of another

part and such use is being actually made up to the time of

severance" and the continued use "is reasonably necessary for

9 the enjoyment of the other part of the parcel, then upon

severance of the ownership a grant to continue such use may

arise by implication." Cummings, 335 Mass. at 642, quoting

Sorel v. Boisjolie, 330 Mass. 513, 516 (1953). See Cummings,

supra at 642-643 (implied easements for lights, maintenance of

electric fixtures, and supply of water and electricity were

reasonably necessary).

The trial judge found that the defendants' continued

underground use of the land that had been part of their parcel

was reasonably necessary for the beneficial enjoyment of the

land. The defendants therefore retained an implied easement in

the underground utilities. See Cummings, 335 Mass. at 643; Flax

v. Smith, 20 Mass. App. Ct. 149, 152 (1985) (implied easement

for underground water and sewer services reasonably necessary).

Our conclusion is not undermined by the fact that neither Simon

nor the plaintiffs were aware of the location of the underground

utilities and did not consider them at the time of the 2004

conveyance. See Cummings, supra at 644 (underground water pipes

were "of such a character that their use was obvious to the

purchaser and she took title subject to [an implied easement]");

Flax, supra at 153 ("What is required . . . is not an actual

subjective intent . . . but a presumed objective intent of the

grantor and grantee based upon the circumstances of the

10 conveyance"). The Restatement (Third) of Property (Servitudes)

§ 2.12 comment g (2000) is instructive:

"g. Underground utilities. In situations where the prior use is for buried utility lines like sewer, water, drainage, or power lines, the parties may not know that one parcel is being used to benefit the other. However, when the parcels are served by utilities, the parties reasonably expect that the conveyance will not terminate the right to continued utility services. From the standpoint of the purchaser of the parcel served by the utility lines, continued utility service is part of the land package he believes he is buying. From the standpoint of the grantor, whose retained parcel is served by the utility lines, the right to cut off her utility services is not part of the package she is selling."

Because the plaintiffs "knew that underground utilities

serviced the properties in the subdivision" at the time of

conveyance, we are not persuaded that the 2004 deed's silence on

the matter undermines our conclusion. See Jasper v. Worcester

Spinning & Finishing Co., 318 Mass. 752, 756 (1945). Simon's

testimony at trial, credited by the trial judge, that she would

not have agreed to the land swap if she knew that she or her

successors would need to move those utilities further supports

the existence of an implied easement. See Lavoie, 102 Mass.

App. Ct. at 19.

Finally, we disagree with the plaintiffs' assertion that

the trial judge committed "clear error" in finding that the

plaintiffs conveyed a portion of their underground utilities to

Simon in 2004. See White, 464 Mass. at 414 (clear error exists

11 only where there is "[a] definite and firm conviction that a

mistake has been committed" [citation omitted]).

Judgment affirmed.

By the Court (Desmond, Hershfang, & Brennan, JJ.3),

Clerk

Entered: May 12, 2026.

3 The panelists are listed in order of seniority.