HomeMy WebLinkAboutCORRESPONDENCE LOT 6 MEMORANDUM
TO: North Andover Town Planning Board
FROM: William C. Sheridan, Esquire
MATTER: Marbleridge Estates
RE: Dedication of roadway easement across Lot 6 in Marbleridge
Estates
INTRODUCTION
On July 9 , 1976 , Banco Corp. executed a deed to Roper Homes Co. ,
Inc. of Andover, Massachusetts concerning property situated at the end
Of Woodberry Lane in the Marbleridge Estate Subdivision. This deed
described the property conveyed as :
"The land in .North Andover, Essex County, Massachusetts
being shown as Lot No. 6 on a Plan entitled "Definitive
Subdivision Plan of Marbleridge Estates located in North
Andover Mass. :
owned by Barco Corp. " , dated January 13,
1976, revised April 15, 1976, Frank D. Gelinas and
Associates, Engineers and Architects, said Plan being
4
recorded with the Essex North District Registry of Deeds as
Plan No. 7397. " (Emphasis added) , i
The deed went on to note that "for a more particular description of
said lots, see Plan referred to,, (
see Exhibit A which is attached
hereto) .
This plan referred to in Barco' s deed was that of the Marbleridge
I
Estates and it described Lot No. 6 as having a "proposed fifty foot
roadway easement" running across it. This easement extended from the i
i
end of Woodberry Lane to the perimeter of the subdivision. This
easement also reflected a covenant made by Barco Corp. to The Town of
North Andover Planning Board in his application for approval of
thesubdivision and was thus "binding upon all . . . grantees of the
whole or part of said land" , ( see Exhibit B which is attached
hereto) . The existence of this easement was lastly an express
condition of the plan' s approval by the Town Planning Board of North
Andover. (See Exhibit C attached hereto) .
After the conveyance to Roper, the builder constructed the home
on Lot 6 away from the easement on the side of the lot . Roper Homes
then conveyed the lot to John R. and Charlene M. Kalin specifically
referring to the easement in the Purchase and Sale Agreement. (See
Exhibit D attached hereto) . Several years later, in 1983 , Barco Corp.
dedicated Woodberry Lane to the Town of North Andover.
We are presently under an option to purchase the property
adjacent to Lot 6 and outside of the subdivision' s perimeter and seek
to obtain a right to construct a roadway across the proposed easement
from the Town of North Andover.
The issues here are ( 1) at the time Lot 6 was conveyed to Roper
Homes, did Barco Corp. reserve the fifty foot roadway easement for the
benefit of Woodberry Lane; and thus ( 2 ) was this proposed roadway
easement dedicated to the Town of North Andover by Barco Corp. at time
of Woodberry Lane 's dedication.
CONCLUSION
Although the Planning Board ' s approval of the plan did not
dedicate the easement to the public, T. Dolan v. Board of Appeals of
Chatham, 359 Mass. 711, 271 N.E. 2d 917 ( 1971 ) , and although the
description of such an easement on the plan did not implicitly convey
any rights in the easement to parcels of property outside of
the subdivision, Chelsea Yacht Club v. Mystic River Bridge
Authorities, 330 Mass . 553, 116 N.E. 2d 153 (1953 ) , the grant of Lot 6
to Roper Homes, with reference to the plan, reserved, an easement for
the benefit of Woodberry Lane by Barco Corp.
The existence of this reserved easement across Lot 6 is based
upon the clear "intention of the parties" at the time the Roper deed
was executed. T. Murphy v. J. Donovan, 4 Mass . Act. 519, 352 N.E. 2d
210, 216 (1976 ) . In fact, given the reference of Barco' s deed to the
plan (which described the easement) , given the knowledge of the
parties at the time (particularly their knowledge that the easement
was a condition of the Town Planning Board' s approval of the plan) ,
and given the subsequent conduct of the parties (particularly Roper
Homes construction of the home away from the easement on the side of
the lot and its reference to the easement in its subsequent sale of
the lot) , one is left with no other conclusion but that it was the
intention of the parties that Barco Corp. would reserve rights in the
easement for the benefit of Woodberry Lane.
Given this reservation by Barco Corp. , the easement was
implicitly dedicated to the public at the time that Barco dedicated
Woodberry Lane, because the easement was appurtenant to Woodberry Lane
existing solely for the benefit of it. Willets v. Langhaar, 212
Mass. 573 , 575, 99 N.E. 466, 467 ( 1912) (right of way easement is
always construed appurtenant to benefitted land) ; Kenny v. Marino, 350
Mass . 534 , 215 N.E. 2d 747 (1966 ) ; and MGLc 183, Section 15 (easement
appurtenant passed by grant of benefitted land without specific
reference in a deed) .
There are only three remaining questions to be considered here.
The first question is whether the Town Planning Board had the power to
require Barco Corp. to reserve a right-of-way easement over Lot 6.
This question is of importance because the Planning Board may not
"impose, as a condition for the approval of a plan of a subdivision,
that any land within said subdivision be dedicated to the public use
or conveyed or released to the Commonwealth . . . without just
compensation. " M.G.L.c. 411, 81Q. However closer scrutiny indicates
that this prohibition was not violated in this case. The Planning
Board was not requiring Barco Corp. to dedicate the easement to the
public. Rather, it was requiring Barco Corp. to reserve such an
easement unto itself . This requirement was clearly within their power
to coordinate the ways in a subdivision with ways in other
subdivisions or with public ways . MGLc 41, Section 81M. This
reserved easement only became dedicated to the public by the free act
of Barco Corp. when it dedicated Woodberry Lane. The insistence on
the easement was therefore not in violation of the aforementioned
prohibition.
The next question is whether the characterization of the easement
on the plan as "proposed" demonstrates the type of intent required to
reserve an easement. This question is easily resolved.
The fact picture at the time of the Barco conveyance to Roper Homes,
particularly the subsequent conduct of Roper Homes (constructing the
home off to the side of the easement and referring to the easement in
its subsequent purchase and sale agreement) , leaves no other
conclusion except that the parties intended Barco to reserve such an
easement. How else can one explain Ropers ' subsequent conduct.
The last questions is whether the subsequent owners of the
property took free and clear of the easement on the ground that they
were bona fide purchasers for value who had no notice of the reserved
easement. This issue is easily resolved because their deeds made a
specific reference to the Barco plan describing the easement. Under
such circumstances, the Courts have traditionally found that the
subsequent purchaser took subject to the existing interest. Wendall v.
Fisher, 187 Mass. 81, 72 N.E. 322 (1904 ) .
DK1. 286
692 Baroo Corp.
a corpora don dulyesmbllahe mo
dunderrhelaw#of the Comnwealth of ttasoachusette
and having is usual placo of business at 1 Westwood Circle, North Reading,
Middlesex Counry,Massaehusetrs
for cooddersdon geld,and In full eonsideradon of Sixteen Thousand ($10,000.00) Dollars
grand to Roper Homes, Co. , Inc. , a Itanaachusetts corporation having a
{ usual place of business at 16 11artford Circle,
of Andover, rosex County, Mass. ' with 4AIa4nt tontnatda
thelandio North Andover, Essex County, Massachusetts beinq shown as lot
number 6 on a Plan entitled "Definitive Su'J-division Plun of ltarbleridge
(Doalplion anJ emcumbamm 11 any)
Estates Located in Borth Andover, truss. owned by Darco Corp. , dated
January 13, 1976, revived April 15, 1976, Frank C. Gelinan i Associates,
Engineers and Architects, said plan being recorded with the fasex North
District Registry of Deeds as Plan No. 7397.
Being part of the same premises deeded to the grantor corporation
by deed from John M. Condon, et ux dated November 10, 1975 recorded
with the Essax North District Registry of Deeds in Book 1271, page 570.
For a more particular description of said lots, see plan referred
to.
t: ..... .. .. ...
C,C�� tor.,„AO1AVFAtt11 OF IAAf.ACtD.;SC;1S
JUN 20-16
531
In 1UtI sots li-Wrof, the mid naroo Corp,. '
has caused iu corporate seal to be hereto, affixed and these presents to be signed, admw•ledged and
delivered in its name and behalf by Joseph J. Darbagallo
its president G trenq c cefo duly authorized, this 9
day of the year one tlausand nine hundred and seventy six.
tf S1 ed an in rest- o
Rarco Corp._
a Ji ham................. j� /nal-eur ly.. -1 -b iga o;' Pttl9id8riC—el71Q'
r
Cot 1TDmm9ruural1tl at Mttaaa 1pmlts
LaNro-nes, lf
Fesex, m, * 1976 976
;
Then personally appeared the above named Joseph J. Rarbagallo
President Treasurer as aforesaid
and the foregoing Instrument to be the free act an ' Da . Cor ;
before me /
Mi eel dme ..... ur�l"'w4
ry PybIK�jC1fRl01MTrYlY
1
Recorded July 20,1976 at 9:48U #5939 h "Ian npira Sept. 24, tr17
,
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BK 0s
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., 531 ;
C0IIFICIIATORY Dr.EO
IIarco Corporation. a corporation July established under the i
Inwa of the Commonwealth of Ilaawnchulletta, having it usual place o
business At 1 Westwood Circle, North Readine. f1lddlesex County,
flnneachuaetts for consideration paid and in full consideration of
lose than One Ilundred ($10 .00) Dollars paid, grant& to Roper
Ilomes Co. , Inc., a Mnssnchusetta corporation rlaeexnCounty,aMs8oace
of huaineea at 16 Hartford Circle, Andover, Eaee
quitclaim land in
County,
entitled "Definitive Sub-division Plan of Berta Corp.",Fdateda
Located In North Andover, 11088. owned by Reran orp.
.lnnunry 13, 1976, revised April 15, 1976, Frank C. Celia" 6
An a0cintee, Engineers and Architects, said plan being recorded
with the f.esex North District Registry of Deeds an Pinn No. 7397•
Brine part of the same Condon. the
ration by decd from John M, Condon.
recorded with the Essex North District Aegietry of Deeds in Book i
1271, page 570. I
For a more particular description of said lots, see plan
referred to.
This deed is a confirmatory deed of a deed previously given
on JulyA, 1976, recorded with the
� Essex North District Regintry
of Deeds. Book 1281, page 69,3-
which incorrectly referred to
the grantor as Barco Corp. rather than Basco Corporation.
In witness whereof the said Barco Corporation has c0•uoed,,,�ts
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corporate seal to be hereto affixed and these presents. tce'bc d Deh *.e*
' •,.
sinned, acknowledged and delivered in its Wane and Y
Joseph J. Barbagallo, its President and Treasurer heieto:;d'kl
authorised this 28th day of February, 1977.
Barco Corporation..
:a A t—
08 ph IInrUe llo.. real•• an
and Treasurer
CONMONNEA1,T11 OF MASSACHUSETTS
Essex, as. Lawrence, Mass. February 28, 1917
appeared the above named oseph J. Barbar,all
Then personally app i -'free Oct and
and acknowledged the forgoing inetru ,ent to e/F t
deed of the Barco Corpotati n, pfot sa, 1 I
Michael ama
orhaM, Notary c
ANTNOMT R.O�FPU9CIA ,•'�',•�F,I•E •••'
M commission ex ire$I Sept. 24, 197
i 3r01f....Anl!"."
Y.tµlb sal•lm
Recorded 17nr.401977 at 11AM #1676
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