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Plainfield Pike Development, LLC v. Victor Anthony Properties, Inc.

Supreme Court of Rhode Island

May 30, 2017

Plainfield Pike Development, LLC.
Victor Anthony Properties, Inc.

         Providence County Superior Court PC 09-5447 Associate Justice Kristin E. Rodgers

          For Plaintiff: James Moretti, Esq.

          For Defendant: John R. Mahoney, Esq.

          Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.


          Paul A. Suttell Chief Justice.

         The defendant, Victor Anthony Properties, Inc. (Victor Properties or defendant), appeals from a final judgment in favor of the plaintiff, Plainfield Pike Development, LLC (Plainfield or plaintiff). The plaintiff had filed a declaratory-judgment action seeking adjudication regarding its use of a roadway over the defendant's abutting property. The matter was tried before the Superior Court, and the trial justice found that the plaintiff had an easement or right-of-way over this roadway and that its use of the right-of-way was not limited to a specific use. On appeal, the defendant does not dispute the finding that the plaintiff has a right-of-way over its roadway; instead, the defendant asserts that the proposed use of said right-of-way by the plaintiff "is an unreasonable extension of the use intended by the parties when the easement was originally created in 1922."

         This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


         Facts and Procedural History

         The plaintiff owns property located at 1901 Plainfield Pike, Johnston, designated as Tax Assessor's Plat No. 29, lots No. 53 and 90. The defendant owns abutting property located to the north and along the easterly side of plaintiff's lot No. 90, designated as Plat No. 29, lot No. 11.[1]Ingress and egress to lot No. 11 are by way of a roughly 400-foot-long roadway from Plainfield Pike, which is at times referred to as "Elks Lane." This roadway abuts the easterly boundary of lot No. 90 and is the subject of this dispute (herein, the right-of-way or easement). After purchasing lots No. 53 and 90 and obtaining the necessary approvals, plaintiff began the construction of an automobile repair facility known as Protech Automotive Services (Protech). At some time thereafter, when construction had already commenced, defendant erected a fence preventing access to the right-of-way.

         On September 17, 2009, plaintiff filed a two-count declaratory-judgment action against defendant in Superior Court. The plaintiff sought a declaration that it had the right to use the right-of-way on lot No. 11 (count 1) and a declaration of the extent it could use the right-of-way (count 2). In its answer to the complaint, in addition to seeking a declaration that the right-of-way did not exist over its lot, defendant raised several defenses, including that the failure of plaintiff, and its predecessors in interest, to use or maintain the right-of-way constituted an abandonment of said right-of-way.


         Trial Testimony

         On October 26, 2011, the matter proceeded to a jury-waived trial. At trial, Thomas D. Mercier, a title examiner who was qualified as an expert, was the first witness. Mercier was hired to compile a title abstract for lots No. 53 and 90, and for lot No. 11. Through Mercier, several deeds entered as exhibits, including an April 11, 1922, deed conveying lots No. 53 and 90 (then lot No. 12), [2] to Giuseppe Iannelli and Domenico Cardillo. This deed expressly conveyed the right-of-way, providing, in relevant part:

"with the right to 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 [(then owners of lot No. 11)], they paying one-half of the expense of maintaining said roadway * * *."

         A July 31, 1922, deed conveying lot No. 11 also contained language indicating that such lot was the servient property to an easement granted to the owners of lot No. 12. Specifically, the deed provided that "[t]his conveyance is made subject to the right of Giuseppe Iannelli and Domenico Cardillo [(then owners of lot No. 12)], their heirs, executors, administrators and assigns, to use the roadway running through the premises described with teams or otherwise * * *." During cross-examination, Mercier acknowledged that some of the subsequent deeds in the chain of title to the pertinent lots did not reference the right-of-way.

         Peter Nolan, an experienced title attorney who was also qualified as an expert, opined that the right-of-way existed over lot No. 11 for the benefit of lot No. 90. He explained that he formed his opinion after he reviewed the abstract prepared by Mercier, as well as after visiting the site. He testified that, in his opinion, the easement ran with the land for the benefit of plaintiff's lot No. 90, the right-of-way was not limited to a particular use or scope, and it "can be used for most [sic] anything." He further opined that the right-of-way had not been abandoned due to its non-inclusion in the chain of title and that it was "still transferred to subsequent grantees even though not specifically recited." He also testified that there was no indication that the right-of-way was limited to farm use.

         Eric Colburn, a professional land surveyor with roughly twenty-eight years of experience, was plaintiff's final witness. He was retained to provide his expert opinion regarding the location and scope of the right-of-way. He opined "that the right-of-way begins * * * at Plainfield Pike and runs northerly along the narrow strip that is Lot 11, and then abuts around the backside of what used to be Lot 12 and is now Lot 90, and continues outside of the area that [he] investigated." He formed his opinion after reviewing aerial maps dating back to 1939, several surveys, and the pertinent deeds. Colburn opined that the right-of-way appeared to be 22.75 feet wide-the distance between the lot lines on lot No. 11. He also took note of the reference to the Rhode Island Ice Company in the 1939 title to lot No. 11. He explained that this was "pertinent to the fact that there was an ice company operational on * * * Lot 11, and * * * it indicate[d] a commercial use of that land * * *." Following Colburn's testimony, plaintiff rested its case.

         William Wilbur, the project developer for the Protech facility, was defendant's first witness. He explained the process that he undertook on behalf of plaintiff to obtain the proper permits to construct the Protech facility, including petitioning the Zoning Board of the Town of Johnston (the board) for a special-use permit. He described his duties and responsibilities as the developer of Protech, which included assembling a team to build the structure; he also described the tasks each team member was responsible for and ultimately fulfilled as part of the project. He attested that, to his knowledge, no one had asked defendant for permission or approval to use the access (over the right-of-way) depicted on the site plan. He recalled that, during the construction of the Protech facility, he contacted his attorney to complain that the right-of-way was being blocked and that he needed access to it.

         Jeffrey Campopiano, a professional civil engineer, was the next witness. After being qualified as an expert, he testified that he had previously drafted a preliminary and final plan for the development of lot No. 12 and that, at the request of defense counsel, he had performed research to determine the length and width of the right-of-way over lot No. 11. He described the process he used to make his determination, which included accessing historic photographs in the Rhode Island Geographical Information System database, as well as reviewing the site plan and relevant deeds. He concluded that, in his opinion, the right-of-way was "less than 20 feet, probably about 10 feet wide." He explained that, historically, farm easements were used to gain access to water, and he recalled this specific right-of-way being used to access the pond for ice.

         Ralph Cuculo, a title attorney who prepared the deed transferring lot No. 11 to Victor Properties, opined "that the easement existed or maybe still exist[s] for the benefit of Lot 12." He explained that his opinion is based on the language of the April 11, 1922 deed. He testified that he had his "doubts" about whether the easement ran with the land.

         Peter Vassilopoulos, who owns and operates a local marina, testified that he gave the president and sole shareholder of Victor Properties, Nicola Ricci, a mortgage to lot No. 11 in March 2009. He testified that he believed Ricci's prior mortgage on lot No. 11 "had come due and they were forcing foreclosure." He also attested that, around that same time, he received an offer from Chris Bodine (a partner at BTN Development, LLC[3]) to purchase the mortgage. ...

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