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Assad v. Sea Lavender, LLC

Appeals Court of Massachusetts, Plymouth

July 26, 2019

SANDRA A. ASSAD, trustee, [1]
v.
SEA LAVENDER, LLC.

          Heard: January 11, 2019.

         Easement. Real Property, Easement. Sewage Disposal. Estoppel. Civil action commenced in the Superior Court Department on March 26, 2015.

         The case was heard by Mark C. Gildea, J., on motions for summary judgment; a motion to alter or amend the judgment was considered by him; a hearing on damages was heard before Robert C. Cosgrove, J.; and the entry of final judgment was ordered by Gildea, J.

          Dennis J. Conry for the defendant.

          John H. Perten for the plaintiff.

          Present: Hanlon, Lemire, & Wendlandt, JJ.

          HANLON, J.

         Sea Lavender, LLC (Sea Lavender) appeals from a second amended judgment issued by a judge of the Superior Court declaring that Sea Lavender has no legal right to use a sewage pump station located on the abutting property of the plaintiff, Sandra A. Assad, trustee of the S.C.S. Realty Trust, and awarding damages to the trustee for trespass. We conclude that the parties' predecessors in title had agreed to modify the terms of an express easement to permit Sea Lavender to use the pump station. In addition, we are persuaded that the trustee is estopped from denying the servitude.

         Background.

         We draw the undisputed facts from the summary judgment record. All of the property at issue is located in Wareham (town) and at one time was owned by Earnest Blanchard. On or about April 22, 1974, the town planning board endorsed a plan Blanchard had submitted as a plan for which "approval under the subdivision control law [was] not required" (ANR plan). The ANR plan showed Blanchard's property divided into three lots. On or about June 1, 1974, Blanchard conveyed lot 2 as shown on the ANR plan (lot 2) to William Goyette (Goyette) by a deed containing the following express easement:

"All of the above premises are also conveyed together with the right to dig, excavate, maintain, and repair and do any and all other acts that might be necessary for the continued operation and use of so much of the sewerage system and related drains, pipes, leaching fields or beds as may be presently located on lot 3, for the benefit of [l]ot 2."

         Almost two years later, on or about May 5, 1976, Blanchard conveyed lot 3 as shown on the ANR plan (lot 3), to Tremont Nail Company (Tremont), a division of W.H. Maze Company (Maze). The deed expressly provided it was subject to the same sewerage easement for the benefit of lot 2.

         Goyette operated the Mill Pond Diner (diner) on lot 2. Tremont operated a company store on lot 3. Subsequent transfers of lot 3 between related entities resulted in Maze taking title to lot 3 in 1989. All of these relevant deeds contained the sewerage easement for the benefit of lot 2. Beginning in 1993, Sandra Assad and her husband, John Assad (together, the Assads), leased lot 3 from Maze and operated a store on the property.

         The record reflects that at all times between 1974 and 2001, a single private septic system serviced lots 2 and 3. Sewage from lot 2 was discharged into two septic tanks located on lot 2, and then traveled through underground drainage pipes into a cesspool and leaching fields located on lot 3. As detailed below, the lot owners eventually moved to a different means of disposing of the sewage collected on each property by pumping it into the municipal sewer system for off-site treatment and disposal. While these technological means are different in some important respects (such as their particular ...


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