SANDRA A. ASSAD, trustee, 
SEA LAVENDER, LLC.
Heard: January 11, 2019.
Real Property, Easement. Sewage Disposal. Estoppel. Civil
action commenced in the Superior Court Department on March
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.
J. Conry for the defendant.
H. Perten for the plaintiff.
Present: Hanlon, Lemire, & Wendlandt, JJ.
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
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
"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."
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.
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
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