ELROSE FISH AND GAME CLUB, INC.
TENNESSEE GAS PIPELINE COMPANY, LLC.
Heard: November 17, 2015
action commenced in the Superior Court Department on April
case was heard by Kimberly S. Budd, J., on motions for
J. McNelis for the plaintiff.
R. Phillips (Nathaniel F. Hulme with her) for the defendant.
Present: Cypher, Trainor, & Rubin, JJ.
plaintiff, Melrose Fish and Game Club, Inc. (club), sued
Tennessee Gas Pipeline Company, LLC (TGP) in Superior Court
for trespass because of TGP's alleged interference with
an easement and breach of contract. The suit arises
from TGP's construction, in 1998, of a natural gas
pipeline facility across the entire width of Cheever Avenue
in Saugus, a paper street over which the club claims an
cross motions for summary judgment, the Superior Court judge
allowed TGP's motion and denied the club's. The judge
ruled, first, that the breach of contract claim was barred by
the six-year statute of limitations in G. L. c. 260, §
2; second, that the club's easement over Cheever Avenue
had been extinguished before it filed suit, either by
estoppel or by frustration of purpose; and, third, that even
if the easement still existed, the club's request for
injunctive relief would be barred by laches. The club appeals
the second and third rulings. We reverse.
club owns three lots of land in Saugus near the Melrose
border. TGP owns a lot that shares a border with one of the
club's lots. The land making up these four lots, along
with much of the surrounding land in Saugus, was once owned
by Wilbur F. Newhall. In 1910, a plan subdividing
Newhall's land into dozens of different lots was recorded
at the registry of deeds (1910 plan). The 1910 plan shows
Cheever Avenue bounding lots 76-80, amongst others, on their
northeast sides. Up until around 1999, Cheever Avenue was
entirely a paper street.
1963, the club acquired lots 78-80 from Saugus (club lots),
which had acquired the lots by tax takings between 1930 and
1951. The original deeds for those lots, as well as all
subsequent deeds, describe them as being bounded by Cheever
Avenue and as being numbered lots 78-80 on the 1910 plan. The
tax takings describe the lots as located on Cheever Avenue.
1998, TGP built the natural gas facility (facility) at issue
in this case. On March 9, 1998, TGP entered into a Right of
Way Agreement (agreement) with the club. This agreement
allowed TGP to use a small area in the northeast corner of
lot 78 during construction and to build its facility over a
portion of lot 78 and a portion of Cheever Avenue. This
portion extended to the midline of the paper street. The
agreement, along with a drawing, was recorded. The drawing
indicates the location of "Cheever Street [sic]."
TGP also exercised its power of eminent domain, pursuant to
an order by the Federal Energy Regulatory Commission (FERC),
to take a portion of lot 77, the lot immediately to the north
of lot 78, which was then owned by the Birch Hill Realty
Trust, also known as the Brentwood Estates Development Group
(Brentwood Estates). On July 21, 1998, the United States
District Court for the District of Massachusetts issued an
order granting TGP a perpetual easement and right of way over
a portion of this lot. The order and an attached drawing were
recorded. The drawing indicates the location of Cheever
Avenue. TGP constructed its natural gas facility between July
21, 1998, and December 31, 1998.
the facility spans the entire width of Cheever Avenue and is
located only partially on the easements and rights of way TGP
had acquired by eminent domain and its agreement with the
club. It is built on the section of Cheever Avenue that
crosses lots 76 and 77 and a corner of the facility protrudes
onto land that is or was owned by Saugus. This placement of
the facility cuts off the portion of Cheever Avenue that
fronts the club's lots from the portion that connects to
a public way. There is no explanation in the record for the
decision to build the facility where it is, nor of what
contractual arrangements, if any, TGP had with Brentwood
Estates or Saugus.
1999, the planning board of Saugus (planning board) approved
a subdivision plan (1999 subdivision plan) submitted by
Brentwood Estates. Under this plan, the northern portion of
Cheever Avenue would be paved and the lots fronting it would
be developed. The paved portion of Cheever Ave would
terminate in a cul-de-sac just north of where the paper
street borders the club's three lots.
the lots created by the 1999 subdivision plan was lot 3,
formed out of lots 76 and 77, as described in the 1910 plan.
As indicated above, this lot is situated just north of the
club's lot 78. The deeds in the chain of title conveying
lots 76 and 77 from Newhall to Brentwood Estates all refer to
these lots by their numbers on the 1910 plan. In 2006, eight
years after building its facility, TGP purchased lot 3 from
Brentwood Estates. TGP's deed provides that it is
"[s]ubject to and with the benefit of any and all
easements . . . which are in force and applicable."
Standard of review.
review a summary judgment decision de novo. Marhefkav.Zoning Bd. of Appeals of Sutton, 79
Mass.App.Ct. 515, 517 (2011). "Because the judge does
not engage in fact finding in ruling on cross motions for
summary judgment, we owe no deference to [her] assessment of
the record." Ibid. "The standard of review
of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party,
all material facts have been established and the moving party
is entitled to ...