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07/21/78 MCCARTIN LEISURE INDUSTRIES v. EVERT BAKER

July 21, 1978

MCCARTIN LEISURE INDUSTRIES, INC.
v.
EVERT BAKER & ANOTHER



Suffolk.

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

SYLLABUS BY THE COURT

Real Property, Profit a prendre. Profit a Prendre, Abandonment. Jurisdiction, Action to quiet title.

The opinion of the court was delivered by: Hennessey

In an action seeking a declaration that the defendant's profit a prendre to remove sand from the plaintiff's land had ceased to exist, the Superior Court was not divested of jurisdiction of the case by the fact that title to the servient estate was transferred away from and then back to the plaintiff during the pendency of the proceedings where it appeared that the plaintiff held legal title both when the action was commenced and when the master filed his report and that during the intervening time, when another held title to the land, the plaintiff continuously asserted his rightful ownership. [66-67]

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 his right to take sand for a cranberry bog. [67-68]

A profit a prendre which had been created for the purpose of taking sand for a cranberry bog was not extinguished by the fact that there existed practical impediments to successful reclamation of the bog where reclamation was not shown to be either factually or legally impossible. [68-69]

Bill in equity filed in the Superior Court on May 8, 1974. The suit was heard by Hallisey, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

This is an appeal by one Evert Baker and his legal guardian, Robert E. Baker, from a judgment in the Superior Court, Suffolk County, declaring that Evert Baker's profit a prendre to remove sand from the plaintiff's land has ceased to exist. The case was brought by McCartin Leisure Industries, Inc., in May, 1974, and was referred to a master in September, 1975.

After a hearing, the master found that the sanding rights in question had been granted for the purpose of cultivating cranberries on the land now owned by Evert Baker (Baker). The master concluded that the use of these rights had been abandoned voluntarily by Baker's legal guardians in so far as they had failed selectively over the past nineteen years to repair, maintain, and cultivate a cranberry bog on the dominant estate. The master further concluded that, since cranberry cultivation on Baker's land was economically impossible under modern conditions, standards, and laws, the purpose of Baker's profit a prendre had ceased to exist. For these reasons, the master decided that Baker's sanding rights were extinguished.

Pursuant to motions of the plaintiff and the defendants, respectively, to confirm and to strike the master's report, a Judge of the Superior Court rejected the master's Conclusion that, by virtue of the guardians' actions with respect to the dominant estate, Baker had shown an intention to abandon his sanding rights in the plaintiff's land. However, the Judge agreed with the master's determination that the sanding rights were presently "incapable of being exercised for the purpose for which [they were] created." As such, the Judge upheld the master's Conclusion that Baker's profit a prendre had ceased to exist.

In this appeal the defendants challenge the Superior Court judgment on this issue and also claim that the Superior Court lost jurisdiction of the case when title to the servient estate was transferred from the plaintiff to another party. We ordered the case transferred to this court. Subsequently we ordered the appointment of a guardian ad litem to represent the interests of Baker.

For the reasons discussed below, we conclude that the defendants' jurisdictional claim is without merit in the circumstances of this case. We decide, however, on the basis of our recent decision in First Nat'l Bank v. Konner, 373 Mass. 463 (1977), that the Judge erred in determining that Baker's profit a prendre had ceased to exist solely because the cultivation of cranberries on the dominant estate was no longer commercially feasible. Accordingly, we reverse.

We summarize the facts as found by the master and as adopted by the Judge. The plaintiff is the present owner of 29.93 acres of land located on the south side of Route 28 in the Waquoit section of Falmouth. The land is bounded to the east and southeast by the property owned by Baker. On the easternmost border of the plaintiff's land, there exists a narrow dirt wagon road which leads ...


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