Providence County Superior Court
For Plaintiff: James Moretti, Esq.
For Defendant: Paul A. Sassi, Esq.
K. RODGERS, J.
This matter came before the Court, sitting by designation in Kent County without a jury, on Plaintiff's Complaint for Declaratory Judgment. Plaintiff Plainfield Pike Development, LLC (Plaintiff or Plainfield) owns real estate located at 1901 Plainfield Pike in Johnston, Rhode Island, which property is identified as Assessor's Plat 29, Lots 53 and 90. Defendant Victor Anthony Properties, Inc. (Defendant or Victor Anthony) owns real estate identified as Assessor's Plat 29, Lot 11, which is situated generally to the north of Plaintiff's Lot 90 and runs along the south and southwest coast of the Simmons Lower Reservoir. Ingress and egress to Lot 11 is by way of a roughly 400-foot long roadway from Plainfield Pike, which measures approximately twenty-three feet wide, and which intermittently has been referred to as Elks Lane. The easterly boundary of Lot 90 abuts this roadway. Plaintiff seeks a declaration that it has a right-of-way over this roadway and a determination of the extent of its permitted use of that right-of-way.
Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13, 8-2-14(a), and 9-30-1. For the reasons set forth herein, judgment shall enter for Plaintiff.
Findings of Fact
Having reviewed the evidence presented by both parties and having viewed the property at issue with counsel, this Court makes the following findings of fact.
Overview of the Property
The properties at issue in this matter appear to have been originally owned by the Weeden family dating back to the early 1900's, and designated as Assessor's Plat 29, Lots 11 and 12. In 1922, Lena Weeden and Esther Frances Weeden conveyed each lot to the parties' predecessors in title. The first deed, dated April 11, 1922 and recorded on September 23, 1922 in Book 33, Page 480, conveyed Lot 12 to Plaintiff's predecessor in title, Guiseppi Iannelli and Domenico Cardillo, and, importantly, included an express easement over "said other land of Lena Weeden and Esther Frances Weeden, " to wit, Lot 11. (Ex. 2, Apr. 11, 1922 deed.) The April 11, 1922 deed to Lot 12 provided as follows:
"with the right to the said grantees, their heirs, executors, administrators, and assigns, to use the roadway with teams and otherwise, running through said other land of the said Lena Weeden and Esther Frances Weeden, they paying one-half of the expense of maintaining said roadway; being the westerly portion of the premises conveyed to the said Amos P. Weeden by deed from William S. Merritt, and wife, dated November 24, 1916, and recorded in the office of the Town Clerk of said Johnston in Deed Book 24 at page 338." Id.
Just three months later, by deed dated July 31, 1922, Lena Weeden and Esther Frances Weeden conveyed Lot 11 to Charles Fradin, Defendant's predecessor in title. (Ex. 1, July 31, 1922 deed.) The July 31, 1922 deed to Lot 11 states:
"This conveyance is made subject to the right of Guiseppi Iannelli and Domenico Cardillo, their heirs, executors, administrators, and assigns, to use the roadway running through the premises described with teams or otherwise, they paying one-half of the expense of maintaining said roadway . . ." Id.
That deed was recorded at Book 33, Page 465.
It is the presence of the aforementioned language in the chains of title for both Lot 11 and Lot 12 which is the genesis of Plaintiff's request for declaratory relief. Defendant, on the other hand, contends that the absence of this language from various deeds within the chains of title to Lot 11 and Lot 12 evidence an abandonment of the easement as does the changed use of the land. Accordingly, a closer analysis of the chains of title to Lot 11 and Lot 12 is warranted.
Chain of Title to Lot 11
The chain of title to Lot 11 was introduced into evidence as Plaintiff's Exhibit 1, and was testified to by title examiner Thomas Mercier (Mercier) and Attorney Peter Nolan (Nolan).
The first relevant deed dates back to November 24, 1916, recorded in Book 24, Page 338, whereby Lot 11 is transferred from William and Ellen Merritt to Amos P. Weeden. As noted, on July 31, 1922, Lena Weeden and Esther Frances Weeden, Amos's widow and daughter, sold the land to Charles Fradin, recorded in Book 33, Page 465. (Ex. 1, July 31, 1922 deed.)
The next deed in evidence transfers Lot 11 from The Rhode Island Ice Land Company to May Volatile on September 2, 1939, recorded in Book 57, Page 298. (Ex. 1, Sept. 2, 1939 deed.) This 1939 deed states: "[s]aid tract or parcel of land is subject, however, to the right of [Guiseppe] Iannelli and Domenico Cardillo, their heirs, executors, administrators and assigns, to use the roadway running through the premises above described with teams or otherwise, they paying one half of the expense of maintaining said roadway." Id. May Volatile subsequently transferred Lot 11 to her husband, Thomas Volatile, on October 3, 1955, recorded in Book 60, Page 337. (Ex. 1, Oct. 3, 1955 deed.) Again, it states that the land is subject to the right of Guiseppi Iannelli and Domenico Cardillo and their heirs, executors, administrators and assigns to use the easement. Id. Thomas Volatile transferred the land back to May Volatile on August 4, 1962 recorded at Book 97, Page 924. (Ex. 1, Aug. 4, 1962 deed.) That deed included the identical easement language as the previous deed between the Volatiles. Id.; cf. Ex. 1, Oct. 3, 1955 deed. On February 14, 1963, May Volatile transferred the property to Vincenza Riccitelli, who immediately transferred it back to both May and Thomas Volatile as tenants by the entirety, both of which were recorded at Book 99, pages 893-894. (Ex. 1, Feb. 14, 1963 deed.) Both deeds described the same easement rights as had been granted to Guiseppi Iannelli and Domenico Cardillo. Id.
In an agreement recorded on January 22, 1970, in Book 116, Page 373, there is a description of the easement provided. (Ex. 1, Jan. 22, 1970 Agreement.) This agreement was entered between Cranston Print Works Company and May Volatile to define and clarify a decision rendered in the Rhode Island Superior Court titled Cranston Print Works Company v. William E. Merritt, Equity No. 3818 entered on June 22, 1917. The Agreement described the easement, stating it:
"shall be twenty-three feet (23) in width and shall extend in a northerly direction across the land of MAY VOLATILE from the northerly line of Plainfield Turnpike, also known as Plainfield Pike, to Simmons Lower Reservoir and running adjacent to the easterly line of said land of MAY VOLATILE. Said easement, wherever it is in a common right-of-way, will be reserved to the use of CRANSTON PRINT WORKS COMPANY, MAY VOLATILE and owners of property abutting such easement, and their respective heirs, executors, administrators and assigns." Id.
On September 29, 1970, May Volatile sold Lot 11 to Clemency Realty, Inc., which is recorded at Book 117, Page 688. (Ex. 1, Sept. 29, 1970 deed.) Clemency Realty sold Lot 11 to Joseph A. Maraia and his wife Mary R. Maraia and John B. Giusti and his wife Ethyl Giusti on May 8, 1972 and recorded at Book 122, Page 319. (Ex. 1, May 8, 1972 deed.) Neither of these deeds contains a reference to the right-of-way.
There is a deed between the Maraias and Giustis to Michael Brophy, recorded November 6, 1981 in Book 158, Page 1172, which describes the land and states that the land is subject to an easement set forth in the original deed. (Ex. 1, Nov. 6, 1981 deed.) On February 12, 1987, in Book 195, Page 1200, Lot 11 was deeded to the Giustis. (Ex. 1, Feb. 12, 1987 deed.) The Giustis subsequently deeded the property to Providence Lodge No. 14 of the Benevolent and Protective Order of the Elks on March 10, 1988, which was recorded in Book 209, Page 555, with the same language as that of the previous deeds, including the easement. (Ex. 1, Mar. 10, 1988 deed.)
The next deed in evidence concerning Lot 11 is not until August 12, 2003, when Bory Ban, Bopha Ban and Chutekma Am sold Lot 11 to Victor Anthony, which is recorded at Book 1356, Page 191. (Ex. 1, Aug. 12, 2003 deed.) Nicola Ricci (Ricci) is president and sole shareholder of Victor Anthony. At the time Defendant bought Lot 11,  it was described as 6.85 acres and zoned as B-2, which is for small businesses. That deed provided that "[s]aid tract or parcel of land is subject also to the right to use the roadway running through the demised premises, with teams or otherwise, as set forth in deed from Lena Weeden et al to Charles Fradin dated July 31, 1922 and recorded in the Office of the Town Clerk of said Town of Johnston in Deed Book 33 at Page 465." Id. Further, on February 26, 2008, Peter Vassilopoulos granted Victor Anthony a mortgage which also included a collateral assignment of rents and leases. Both the Assignment and Mortgage, recorded at Book 1906, Pages 129-144; 146-154, also state "said tract or parcel of land is subject also to the right to use the roadway running ...