Plainfield Pike Development, LLC.
Victor Anthony Properties, Inc.
County Superior Court PC 09-5447 Associate Justice Kristin E.
Plaintiff: James Moretti, Esq.
Defendant: John R. Mahoney, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
A. Suttell Chief Justice.
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."
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.
and Procedural History
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.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.
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.
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),  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 * * *."
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
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
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.
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.
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.
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
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) to purchase the mortgage. ...