Maureens Mirtilli Llc V Idlewild Acres Llc Another
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-321
MAUREEN'S MIRTILLI, LLC
vs.
IDLEWILD ACRES LLC & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Maureen's Mirtilli, LLC (Mirtilli), operates
a cranberry bog on three contiguous, landlocked parcels in
Sandwich. Up until June 2018, Mirtilli's predecessors in title,
Peter and Janet Hanlon, gained access to the bog by a road
running through two contiguous parcels (Parcel I and Parcel II)
owned by the defendant, Idlewild Acres LLC (Idlewild). At that
time, Idlewild blocked the Hanlons' access, and the Hanlons
filed a complaint in the Superior Court seeking a declaration
that they had an easement over both parcels. The case
transferred to the Land Court where Mirtilli was substituted as
the plaintiff and new owner of the landlocked bog. A judge of
1 Peter M. Wild.
the Land Court entered summary judgment for Idlewild, and
Mirtilli now appeals. We affirm.
Discussion. "We review a judge's grant of summary judgment
de novo to determine '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 a judgment
as a matter of law.'" Geezil v. White Cliffs Condominium Four
Ass'n, 105 Mass. App. Ct. 103, 106 (2024), quoting Augat, Inc.
v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The moving
party bears "the burden of initially showing that there is an
absence of evidence to support the case of the nonmoving party
shouldering the burden of proof at trial." Kourouvacilis v.
General Motors Corp., 410 Mass. 706, 714 (1991). At trial,
Mirtilli would have to shoulder the burden of proving the
existence of an easement. See Duddy v. Mankewich, 75 Mass. App.
Ct. 62, 66 (2009). We conclude that Idlewild satisfied its
burden.
1. Parcel I. The record here shows that Idlewild's
certificate of title for Parcel I lacks an easement in favor of
Mirtilli's bog. Parcel I is registered land under G. L. c. 185.
"Before the Land Court issues a judgment of registration, it
first must pass on the validity of asserted encumbrances."
Tetrault v. Bruscoe, 398 Mass. 454, 459 (1986). A judgment of
registration must set forth "particular . . . easements" that
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will appear on the certificate of title. G. L. c. 185, § 47.
Generally, holders of a certificate of title for registered land
take "free from all encumbrances except those noted on the
certificate." G. L. c. 185, § 46. Under this general rule,
"[i]n order to affect registered land as the servient estate, an
easement must appear on the certificate of title." Tetrault,
supra at 461. Here, Idlewild's transfer certificate of title,
dated April 28, 2004, does not "create an express easement" in
favor of Mirtilli's land. Jackson v. Knott, 418 Mass. 704, 710
(1994).
We disagree with Mirtilli's contention that "the easement
in question does in fact appear on the face of the Idlewild
Certificate of Title" to Parcel I. Mirtilli based this argument
on the combination of a 1930 plan referenced in the certificate
of title and the following language in the title: "So much of
said land as is included within the limits of the ways [on the
plan] . . . is subject to the rights of all persons lawfully
entitled thereto in and over the same." Despite the reference
to the plan and the ways therein, the certificate of title does
not create an express easement over Parcel I in favor of
Mirtilli's land because neither the title nor the plan
identifies such an easement. "[V]ague language will not suffice
to fulfil the requirements of G. L. c. 185, §§ 45 and 46, for a
recorded easement on the certificate of title." Calci v.
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Reitano, 66 Mass. App. Ct. 245, 248 (2006). See Jackson, 418
Mass. at 706 (no easement in plaintiffs' favor where plan and
"certificates of title refer to the Way . . . but neither
describes any easement over the Way"); Butler v. Haley Greystone
Corp., 347 Mass. 478, 484 (1964) ("language of the decree does
not satisfy the requirement of the statute that 'particular
. . . easements' be set forth").
The language relied on by Mirtilli ("land . . . is subject
to the rights of all persons lawfully entitled thereto in and
over the same") is very similar to language that we previously
deemed insufficient to create an easement on a certificate of
title. See Calci, 66 Mass. App. Ct. at 248 ("subject . . . to
any and all public rights legally existing in and over the same
below mean high water mark"). The language here suffers from a
lack of "particularity" that identifies Mirtilli's land as
benefiting from such an easement. Butler, 347 Mass. at 485.
Mirtilli cannot fill in gaps in the Idlewild certificate of
registration by relying on the original petition for
registration of Parcel I, filed on October 20, 1930. Mirtilli
contends that its property benefits from the easement because
its predecessor in title is referenced in the 1930 petition for
registration. We disagree. The "mere act of filing a complaint
for registration does not, in itself, affect the state of
title." Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App.
4
Ct. 104, 108 (1991). See G. L. c. 185, § 36 (title unaffected
by "filing of a complaint and before registration"). See
Johnson v. Rosengard, 299 Mass. 375, 377 (1938) ("court is to
pass upon the validity of incumbrances before issuing a
certificate" [citation omitted]). "Because '[t]he finality and
unassailability of registered title is a cornerstone of the
registered land system,' . . . the petition does not operate as
a document in the chain of title for the purpose of creating an
easement." Calci, 66 Mass. App. Ct. at 248-249, quoting Feinzig
v. Ficksman, 42 Mass. App. Ct. 113, 116 (1997). See Butler, 347
Mass. at 484 ("we are not inclined to the opinion that the
petition for registration constitutes part of such a decree").
We next examine whether the record shows the existence of
an easement over Parcel I under two recognized exceptions to the
general rule stated above. "If an easement is not expressly
described on a certificate of title, an owner, in limited
situations, might take his property subject to an easement at
the time of purchase: (1) if there were facts described on his
certificate of title which would prompt a reasonable purchaser
to investigate further other certificates of title, documents,
or plans in the registration system; or (2) if the purchaser has
actual knowledge of a prior unregistered interest." Jackson,
418 Mass. at 711. Neither of these exceptions applies here.
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Nothing in the Idlewild certificate of title would have
prompted Idlewild to look for an easement within the land
registration system in favor of the Mirtilli lots. As
previously discussed, the Idlewild certificate of title
contained no reference at all to the lots now owned by Mirtilli.
Even if the certificate of title reference to the "ways" and the
1930 plan required Idlewild to look beyond the text of the
title, see Jackson, 418 Mass. at 711 ("purchaser would be
expected to review" plan referenced in certificate of title),
the plan itself would prove to be a dead end because the
Mirtilli lots are not within the plan. See Scagal v. Jones, 355
Mass. 208, 211 (1969) (where land conveyed with reference to
plan, easement created only if clearly intended). To the extent
Mirtilli argues that Idlewild had an obligation to continue
searching for the easement, we disagree. Requiring a more
robust search under these circumstances "would be directly
contrary to the purposes of the Land Registration Act."
Jackson, supra.
We also discern nothing in the record that shows Idlewild
had actual knowledge of a prior unregistered easement in favor
of the Mirtilli lots. Mere evidence that Idlewild knew the ways
had been used by Mirtilli or its predecessors is insufficient
because such use may constitute mere "permissive use" rather
than an easement. Jackson, 418 Mass. at 714.
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2. Parcel II. We have decided that the portion of the
road passing through Parcel I is not subject to an easement in
favor of Mirtilli's land. That road, however, continued through
the unregistered Parcel II, where Mirtilli claims to have a
prescriptive easement. We need not fully unpack the issue of
that alleged prescriptive easement. "When a right in the nature
of an easement is incapable of being exercised for the purpose
for which it is created the right is considered to be
extinguished" (citation omitted). Comeau v. Manzelli, 344 Mass.
375, 381 (1962). Thus, even if Mirtilli's lots could have
theoretically acquired a prescriptive easement over Parcel II,
the easement would lead to a dead end at the border of Parcel II
and would be considered extinguished.
3. Parcel II alternative relief. As an alternative basis
for relief, Mirtilli presses a claim that it has a prescriptive
easement over a different unpaved road through Parcel II with
access to North Shore Boulevard. We agree with Idlewild that
this claim was not part of the complaint, and is not properly
before us. No less than ten times, the complaint referred to a
dispute over a single "easement." The complaint described this
interest as "an easement by grant to cross Roos Road in
Sandwich, from Spring Hill Road to their cranberry bogs across
land owned by Id[le]wild Acres LLC." Especially given the
reference to Roos Road, the complaint refers to a single alleged
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easement over the road passing through Parcel I and Parcel II,
not an alleged prescriptive easement over a different road
through Parcel II (accessed from North Shore Boulevard).
A complaint must contain "allegations plausibly suggesting
(not merely consistent with)" an entitlement to relief,
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007),
and "must be enough to raise a right to relief above the
speculative level." Iannacchino, supra, quoting Bell Atl.
Corp., supra at 555. At a minimum, the complaint must afford
"fair notice to the defendant of the basis and nature of the
action against him." Berish v. Bornstein, 437 Mass. 252, 269
(2002). See Whitehall Co. Ltd. v. Merrimack Valley Distrib.
Co., 56 Mass. App. Ct. 853, 856–857 (2002) ("the complaint must
put the adversary on notice of the essential elements of the
claim the pleader intends to assert"). The prescriptive
easement claim related to North Shore Boulevard is not only a
different theory, but it also pertains to an entirely different
unpaved road running through Idlewild's property. We conclude,
therefore, that Idlewild did not have a fair opportunity to
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address this claim below, and the claim is not properly before
us.
Judgment affirmed.
By the Court (Blake, C.J.,
Hodgens & Toone, JJ.2),
Clerk
Entered: July 23, 2025.
2 The panelists are listed in order of seniority.
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