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Elrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Co., LLC

Appeals Court of Massachusetts, Middlesex

June 20, 2016


          Heard: November 17, 2015

         Civil action commenced in the Superior Court Department on April 23, 2013.

         The case was heard by Kimberly S. Budd, J., on motions for summary judgment.

          Brian J. McNelis for the plaintiff.

          Dianne R. Phillips (Nathaniel F. Hulme with her) for the defendant.

          Present: Cypher, Trainor, & Rubin, JJ.

          RUBIN, J.

         The 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[1] 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 easement.

         On 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.


         The 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.[2]

         In 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.

         In 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).[3] 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.

         Physically, 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[4] 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.

         In 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.

         One of 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."


         1. Standard of review.

         We 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 ...

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