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10/03/77 FIRST NATIONAL BANK BOSTON & ANOTHER v.

October 3, 1977

THE FIRST NATIONAL BANK OF BOSTON & ANOTHER, EXECUTORS,
v.
CAROL A. KONNER



Barnstable. Petition filed in the Land Court on May 10, 1974. The case was heard by Fenton, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Real Property, Profit a prendre. Profit a Prendre, Abandonment.

The opinion of the court was delivered by: Quirico

The rights of a holder of a profit a prendre were not extinguished merely by nonuser where there was no evidence that the holder had the requisite intent to abandon the profit. [466-467]

A profit a prendre which had been created for the purpose of taking sand for a cranberry bog was not extinguished by the mere fact that there existed practical impediments to successful reclamation of the bog, particularly where the owner of the dominant estate had control over the conditions currently preventing the exercise of the profit. [467-468]

This court declined to adopt a rule that a profit a prendre created for a special purpose is extinguished when it would be commercially impractical or economically wasteful to attempt to revive the activity which the profit was created to serve. [468-470]

In the absence of an express limitation imposed by the grantor on the exercise of a profit a prendre, the owner of the dominant estate was free to exercise her rights without geographical limitations. [470-471]

This is an action for declaratory relief under G. L. c. 231A which was entered in the Land Court by The First National Bank of Boston and Donald T. Devine, executors under the will of Frank F. Savage, against Carol A. Konner (Konner). *fn1 The plaintiffs allege that the Savage estate and Konner own adjoining parcels of land in Mashpee, and that an actual controversy has arisen over the existence, nature and extent of the rights of Konner in the adjoining land of the Savage estate (Savage property). They ask for a determination of the rights of the parties in the matter in controversy.

After a trial, a Judge of the Land Court, in a carefully prepared decision, concluded that Konner is the holder of a profit a prendre which gives her the perpetual right to take sand from the Savage property for the limited purpose of sanding a cranberry bog, that the profit a prendre is appurtenant to that portion of Konner's land shown as Parcel 3 on a plan dated July 2, 1968, and recorded in the Barnstable County registry of deeds in plan book 224 at page 47, *fn2 and that the profit a prendre is not limited to any specific or defined portion of the thirty-three acres of the Savage property. He further concluded, contrary to the contentions of the plaintiffs, that the sanding rights had not been lost by abandonment or terminated under any other theory of extinguishment. Judgment was entered accordingly and the plaintiffs appealed.

Because this case presents novel questions concerning the extinction of a profit a prendre, we granted an application for direct appellate review. For reasons set forth below, we conclude that there was no error and affirm the judgment of the Land Court.

We summarize the pertinent facts as found by the Judge of the Land Court. Such findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to Judge of the credibility of the witnesses." Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). The Savage estate includes a parcel of thirty-three acres of land in Mashpee. Konner's land adjoins that land and it consists of the following three parcels which are shown on the plan appended to this opinion: Parcel 1 consisting of 3.33 acres, Parcel 2 consisting of 0.78 acres, and Parcel 3 consisting of 17.19 acres. Parcel 3, to which the profit a prendre is appurtenant, is separated from the Savage property by Parcel 1.

The land involved in this controversy was formerly owned by Elijah W. Pocknett. In 1885, he conveyed Parcel 3 to Konner's predecessor in title, retaining Parcel 1 and the present Savage property. The deed to Parcel 3, which was described as "Cedar Swamp," granted "the privilege to take sand from my land adjoining to sand the swamp for a Cranberry Bog, and also the right to deposit on my land the stumps and other rubbish coming from the swamp and reserving to myself the Cedar which is to be deposited on my land. Also the right of the parties to a cartway from the town road to the Westerly end of the . . . swamp over my land. Also the right of the parties to take sand from my land adjoining to construct a dyke."

Title to Parcel 1 was conveyed to Konner's immediate predecessors in title by Savage in 1968. Konner acquired both Parcel 1 and Parcel 3 in 1971. Her deed to the latter parcel, like the deeds to several of her predecessors in title, refers to the sanding ...


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