WASHINGTON VILLAGE COUNTRY CLUB and RESIDENCY CONDOMINIUM ASSOCIATION v. ISLAND GREEN GOLF, LLC C.A. NO. KC
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
KENT, SC.
SUPERIOR COURT
(FILED – AUGUST 21, 2007)
WASHINGTON VILLAGE COUNTRY
:
CLUB and RESIDENCY CONDOMINIUM
:
ASSOCIATION
:
:
v.
:
C.A. NO. KC 05-0553
:
ISLAND GREEN GOLF, LLC
:
:
v.
:
:
TOWN OF COVENTRY
:
DECISION
THOMPSON, J. Pursuant to Rule 56 of the Superior Court Rules of Civil Procedure, this
matter comes before the Court on a motion for partial summary judgment filed by Plaintiff
Washington Village Country Club and Residency Condominium Association (“Plaintiff”).
Plaintiff seeks a grant of summary judgment as to Counts II, III, VIII, and IX of its amended
complaint against Defendant Island Green Golf, LLC (“Defendant”) and on Counts IV, V, and
VI of Defendant’s counterclaim. Defendant timely filed an objection to Plaintiff’s motion, and
filed a cross-motion for summary judgment on all counts contained in its counterclaim and in
Plaintiff’s complaint.
I
Facts and Travel
Plaintiff is an association of the unit owners of the Washington Village Country Club and
Residency Condominium located in Coventry, Rhode Island, on real property designated as Plat
61, Lot 13.1 (the “Condominium Property”). The Condominium Property is comprised of 35.73
acres of land.
The Defendant owns and operates a nine-hole golf course known as the
Washington Village Golf Course on 37.94 acres of land, identified as Plat 53, Lot 32.01 (the
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“Golf Course Property”). The Condominium Property and the Golf Course Property are abutting
and were originally part of a single parcel of land (the “Original Parcel”).
Initially, the Original Parcel was owned by the Hopkins family, who at some point during
the 1960’s constructed a golf course upon it. In the early 1980’s, an entity known as Forcier, Inc.
(“Forcier”) acquired the land with the intent to develop it as a mixed residential community/golf
course. On May 1, 1989, Forcier divided the Original Parcel approximately in half, resulting in
the creation of the Golf Course Property and the Condominium Property.
On that same date,
Forcier prepared and executed a deed, which conveyed the Golf Course Property to an entity
called W.P. Associates. The land transferred by way of the deed contained virtually the entire
existing golf course. However, the property line evidenced by the deed did not accurately reflect
the boundary of the land that was actually being maintained and used as a golf course. 1 This
deed was held in escrow and not delivered or recorded until November 19, 1997.
Additionally, on or about May 1, 1989, Forcier transferred title in the Condominium
Property to W.P. Associates.
Thereafter, on June 29, 1989, W.P. Associates recorded a
Declaration of Condominium in the Land Evidence Records of the Town of Coventry (the
“Declaration”). The Declaration created the Washington Village Country Club and Residency.
On May 19, 1993, Envine Real Estate, Inc. (“Envine”) took title to the Condominium Property
along with all development and special declarant rights as defined in the Declaration, by virtue of
a mortgagee’s deed. 2 Subsequently, on November 14, 1997, Envine transferred two parcels of
land located within the Condominium Property, via quitclaim deed, to Par Four Inc. (“Par
Four”).
The two parcels were located along the border of the Condominium Property and
contained approximately 29,000 square feet (the “Withdrawn Parcels”). Concurrent with the
1
This inconsistency is the basis for one of the property disputes, which Plaintiff and Defendant are attempting to
adjudicate. This issue will be discussed more fully infra.
2
Fleet National Bank had previously foreclosed against W.P. Associates on the Condominium Property.
2
transfer, Envine recorded an instrument entitled “Withdrawal of Land from the Declaration of
Washington Village Country Club and Residency” in the Coventry Land Evidence Records.
Thereafter, on November 19, 1997, W.P. Associates transferred the Golf Course
Property, via quitclaim deed, to Par Four. Additionally on November 19, 1997, a number of
purported easements were granted to Par Four. The Town of Coventry granted Par Four an
easement over property it owned adjacent to the Golf Course Property to facilitate ingress and
egress by both foot and motor vehicle. Envine granted to Par Four an access and storage
easement known as the “Fairway Drive Easement,” which gave Par Four the right to travel
across the Condominium Property. The Fairway Drive Easement also afforded Par Four the
right to maintain the storage and maintenance barn upon the easement area. Envine then granted
a second easement to Par Four, known as the “Mashie Circle Easement,” which allowed golf
course patrons a route of travel, by foot or vehicle, from a number of the golf course’s greens to
the tee box of the next hole of play. Thereafter, on May 23, 2005, Par Four transferred title in
the Golf Course Property, the Withdrawn Parcels and the above-mentioned easements to the
Defendant, by way of a quitclaim deed.
The basis for the instant action is, in part, a disagreement between the parties regarding
use of the Withdrawn Parcels and the above easements. In addition, a further dispute arose based
on Plaintiff’s claim that five of the golf course’s nine holes are currently encroaching upon
approximately 40,000 square feet of the Condominium Property (the “Area of Encroachment”).
Plaintiff argues that this issue arose as a result of the above-mentioned inconsistency in the
original deed to the Golf Course Property. Plaintiff claims that it attempted to resolve this issue
with Par Four but such attempts were unsuccessful. As a result, on April 14, 1999, Plaintiff filed
a copy of a survey, purportedly evidencing the encroachment, in the Coventry Land Evidence
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Records (the “Survey”). 3 The Survey was filed along with a document entitled “Notice of Intent
to Dispute Interrupting Adverse Possession” (the “Notice of Intent”). In addition to alleging that
Defendant is encroaching on its property, Plaintiff also argues that those easements granted by
Envine to Par Four, and subsequently transferred to Defendant, are invalid.
Additionally,
Plaintiff asserts that Envine’s withdrawal and concomitant transfer of the Withdrawn Parcels was
without authority and therefore void.
Plaintiff states that it has continuously objected to
Defendant’s use of its land without compensation or indemnification.
On June 22, 2005, Plaintiff filed the within action seeking injunctive, declaratory, and
equitable relief, along with compensatory damages. On July 12, 2005, Defendant filed an
answer and counterclaim. On August 19, 2005, Plaintiff filed an answer to the counterclaim and
also brought a third-party complaint against the Town of Coventry concerning a drainage issue
raised in Defendant’s counterclaim.
Plaintiff has since filed a motion for partial summary judgment seeking a declaration that:
(1) under Count II of its complaint, it owns the Area of Encroachment; (2) under Count IX, the
Withdrawn Parcels are the property of Plaintiff and Defendant has no right to use or possess
them; and (3) under Counts III and VIII respectively, the Fairway Drive Easement and Mashie
Circle Easement are invalid as a matter of law, and as a result Defendant is prohibited from using
such property any further. Defendant has filed a cross-motion seeking summary judgment on all
counts contained in Plaintiff’s complaint and its own counterclaim.
In its counterclaim,
Defendants asserts the following counts of: (1) nuisance; (2) trespass; (3) tortious interference
with contractual relations and prospective contractual relations; (4) a declaratory judgment as to
its right to use the easements; (5) a declaratory judgment as to a prescriptive easement; and (6) a
3
The survey was conducted by R.C. Cournoyer Enterprises, Inc. and dated April 12, 1999.
4
declaratory judgment as to easements by necessity.
4
For the reasons set forth herewith, this
Court grants Plaintiff’s motion in part and denies it in part. Defendant’s motion is denied.
II
Standard of Review
“Summary judgment is a proceeding in which the proponent must demonstrate by
affidavits, depositions, pleadings, and other documentary matter . . . that he or she is entitled to
judgment as a matter of law and that there are no genuine issues of material fact.” Palmisciano
v. Burrillville Racing Assoc., 603 A.2d 317, 320 (R.I. 1992) (citing Steinberg v. State, 427 A.2d
338 (R.I. 1981); Ludwig v. Kowal, 419 A.2d 297 (R.I. 1980); Super. R. Civ. P. 56(c)).
“Summary judgment is appropriate if, viewing the evidence in the light most favorable to the
nonmoving party, no material questions of fact exist and the moving party is entitled to judgment
as a matter of law.” Konar v. PFL Life Ins. Co., 840 A.2d 1115, 1117 (R.I. 2004).
The party opposing the motion for summary judgment carries “the burden of proving by
competent evidence the existence of a disputed issue of material fact and cannot rest upon mere
allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Tanner v.
Town Council of East Greenwich, 880 A.2d 784, 791 (R.I. 2005) (quoting Lucier v. Impact
Recreation, Ltd., 864 A.2d 635, 638 (R.I. 2005)). Only “[w]hen an examination of the pleadings,
affidavits, admissions, answers to interrogatories and other similar matters, viewed in light most
favorable to the party opposing the motion, reveals no such [disputed material issue of fact,] the
suit is ripe for summary judgment.” Industrial National Bank v. Peloso, 121 R.I. 305, 306, 397
A.2d 1312, 1313 (1979).
4
The Defendant failed to address the first three counts of its counter-claim in its memorandum of law and, therefore,
the Court will not address those counts in this Decision.
5
III
The Area of Encroachment
Count II of Plaintiff’s amended complaint seeks a declaration that Plaintiff owns the Area
of Encroachment. As stated above, Plaintiff maintains that at the time Defendant took title to the
Golf Course Property, five of the course’s nine holes encroached upon approximately 40,000
square feet of the Condominium Property. Plaintiff further argues that this encroachment is
evidenced by the Survey, which was filed as an attachment to the Notice of Intent on April 14,
1999. Plaintiff alleges that Defendant knew of the encroachment before it purchased the Golf
Course Property. In support of its contentions, Plaintiff notes that by order of this Court,
Defendant had until July 25, 2005 to obtain its own survey of the alleged encroachment. On
August 25, 2005, by agreement of the parties, the Court issued an order stating inter alia that the
parties assented to the boundary line set forth in the Survey as the boundary reflected in the deed
severing the land. As such, Plaintiff argues that Defendant has neither contested the legal
boundary as set forth in the chain of title, nor has it proffered a survey which disputes Plaintiff’s
survey. Plaintiff therefore contends that a boundary dispute does not exist and thus, Plaintiff is
entitled to summary judgment as to this issue.
Defendant’s argument with regard to ownership of the Area of Encroachment is grounded
in equity. Expressly, Defendant contends that a wood rail fence, which is located in the Area of
Encroachment, is the actual boundary line between the Golf Course Property and the
Condominium Property. In support of this argument, Defendant asserts that the parties have
acquiesced to the wood rail fence as the boundary because its patrons and the patrons of its
predecessors have been using the Area of Encroachment since the golf course was first
constructed in the 1960’s.
Defendant further argues that it has always maintained and
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landscaped the area up to the fence and that Plaintiff has maintained the area on the opposite side
of the fence. Thus, Defendant concludes that although Plaintiff recorded the Notice of Intent,
Plaintiff was at that time estopped from denying that the wood rail fence was the actual boundary
line based upon a theory of acquiescence.
The common law doctrine of acquiescence provides that “owners from adjoining estates
are precluded from denying a boundary line recognized by both owners for a length of time equal
to that prescribed by the statute of limitations barring a right of reentry.” DeCosta v. DeCosta,
819 A.2d 1261, 1264 (R.I. 2003). This long recognized doctrine serves the purpose of “quieting
titles, and preventing the uncertainty and confusion, and consequent litigation, which would be
likely to result from the disturbance of boundary lines so long established.” O’Donnell v.
Penney, 17 R.I. 164, 167, 20 A. 305, 307 (1890). A party alleging acquiescence need only show
that some boundary marker existed and that the parties recognized that boundary for a period
equal to that prescribed by the statute of limitations to bar reentry, namely, for a period equal to
ten years. DeCosta, 819 A.2d at 1264. Acquiescence for the requisite number of years is
“conclusive evidence of an agreement to establish such a line and the parties will be precluded
from claiming that the line so acquiesced in is not the true boundary.” Locke v. O’Brien, 610
A.2d 552, 556 (R.I. 1992).
In light of the well-established case law, this Court can find no merit in Defendant’s
arguments with respect to this issue. The fact that patrons of the golf course have used the Area
of Encroachment and that course owners have maintained it since the course was first
constructed is immaterial. The relevant inquiry is whether Defendant, through its predecessors
in interest, can satisfy the requisite ten-year period to gain title by acquiescence after the Original
Parcel was divided. The deed that severed the Original Parcel and established the border now in
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question was executed on May 1, 1989. As noted previously, the Notice of Intent was filed on
April 14, 1999, clearly within ten years from the date of severance of the Original Parcel. As a
result, Plaintiff cannot be considered to have acquiesced for the requisite time period to a
different boundary than that evidenced by the deed which established the subject boundary.
Accordingly, this Court finds Defendant’s contention that it holds title to the Area of
Encroachment as a result of acquiescence to be without merit. Rather, Plaintiff is the rightful
owner of the Area of Encroachment. Thus, Plaintiff is entitled to summary judgment on Count II
of its amended complaint.
IV
The Withdrawn Parcels
A
Validity of the Withdrawal and Conveyance
In Count IX of its amended complaint, Plaintiff seeks a declaration that the Withdrawn
Parcels, which were withdrawn by Envine and conveyed to Par Four, are legally owned by
Plaintiff. Plaintiff maintains that Defendant has no legal right to possess or use the Withdrawn
Parcels. In support of this claim, Plaintiff notes the fact that Article 12.1 of the Declaration
reserves, for the benefit of the declarant, a list of development rights and special declarant
rights. 5 Plaintiff asserts that nowhere else does the Declaration specifically describe the reserved
5
Article 12.1 provides: “The Declarant reserves to itself and for the benefit of its successors and assigns, pursuant to
Section 34-36.1-2.05(a)(8) of the Act, the right to create new Units as per ARTICLE 2, Section 2.2 of this
Declaration, to create new Common Elements or Limited Common Elements within the Condominium or alter
existing ones, to sub-divide or convert Units into the Common Elements, to withdraw real estate from the property
of the Condominium and any and all other Development Rights as are now allowed or in the future may be allowed
by the Act. The Declarant also reserves to itself and for the benefit of its successors and assigns, all of the ‘Special
Declarant Rights’ delineated under Sections 34-36.1-1.03(23), including, but not limited to the right to complete all
improvements shown on ‘Exhibit B,’ annexed hereto, to exercise the Development Rights set forth above, to
maintain models and sales offices and to exercise the easements as set forth in ARTICLE 5 hereof, to make the
Condominium part of a larger Condominium, to make the Condominium subject to a master association, to appoint
or remove any officer or Executive Boardmember during any period of Declarant control of the Association and any
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rights. Plaintiff also notes that the Rhode Island Condominium Act (the “Condominium Act”)
provides that the declaration for a condominium must contain:
“A description of any development rights and other special
declarant rights reserved by the declarant, together with a sufficient
description of the real estate to which each of these rights applies,
and a time limit within which each of those rights must be
exercised.” G.L. 1956 § 34-36.1-2.05(a)(8).
Plaintiff further remarks that, with respect to the exercise of development rights, the
Condominium Act provides that:
“If the declarant provides, pursuant to § 34-36.1-2.05(a)(8), that all
or a portion of the real estate is subject to the development right of
withdrawal: (1) If all the real estate is subject to withdrawal, and
the declaration does not describe separate portions of real estate
subject to that right, none of the real estate may be withdrawn after
a unit has been conveyed to a purchaser; and (2) If a portion or
portions are subject to withdrawal, no portion may be withdrawn
after a unit in that portion has been conveyed to a purchaser.”
Section 34-36.1-2.10(d).
In light of the above, Plaintiff argues that the Declaration, as amended, did not
specifically describe the Withdrawn Parcels and did not identify them as parcels subject to
withdrawal as required by the Condominium Act. Further, Plaintiff maintains that because a
significant number of units had been sold at the time of the withdrawal, the purported withdrawal
violated the Condominium Act, which prohibits withdrawal “after a unit has been conveyed to a
purchaser.” Section 34-36.1-2.10(d)(1).
In addition, Plaintiff contends that the declarant, Envine, failed to reserve the right to
withdraw the Withdrawn Parcels by failing to follow the Condominium Act’s requirements for
condominium plots and plans. The Condominium Act requires that:
and all other Special Declarant Rights as are now allowed or in the future may be allowed by the Act. Development
Rights and Special Declarant Rights must be exercised within 10 years from the date this Declaration was recorded
or such earlier time as the right to do so expires pursuant to the terms hereof or the Act, as applicable, or is
terminated by the Declarant.” Declaration of Condominium for Washington Village Country Club and Residency,
art. 12.1, dated June 23, 1989.
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“Each plat must show: (1) The name and a boundary survey of the
entire condominium; (2) The location and dimensions of all real
estate not subject to development rights, or subject only to the
development right to withdraw, and the location and dimensions of
all existing improvements within that real estate; (3) A legally
sufficient description of any real estate subject to development
rights, labeled to identify the rights applicable to each parcel . . . .”
Section 34-36.1-2.09(b)
Plaintiff also claims that the Commissioner’s Comment to this section offers guidance on this
issue:
“Subsection (b)(3) requires that the real estate which is subject to
development rights must be identified with a legally sufficient
description, that is, either a metes and bounds description, or
reference to the deeds of that real estate. Since different portions of
the real estate may be subject to differing development rights - for
example, only a portion of the total real estate may be added as
well as withdrawn from the project - the plan must identify the
rights applicable to each portion of that real estate. The same
reasoning applies to the legally sufficient description of easements
affecting the condominium and any leasehold real estate.” Section
34-36.1-2.09 cmt. 5.
Plaintiff argues that the Withdrawn Parcels were never sufficiently described as being subject to
the withdrawal right.
Finally, Plaintiff alleges that American Condominium Assoc. v. IDC, Inc., 844 A.2d 117
(R.I. 2004) is controlling in the instant matter. In American Condominium Assoc., the declarant
sought to extend the time limit to exercise his development rights. Our Supreme Court held that
to do so required the unanimous consent of the unit owners pursuant to the requirements of § 3436.1-2.17 of the Condominium Act. In pertinent part, the section provides:
“Except to the extent expressly permitted or required by other
provisions of this chapter, no amendment may create or increase
special declarant rights, increase the number of units, change the
boundaries of any unit, the allocated interests of a unit, or the uses
to which any unit is restricted, in the absence of unanimous
consent of the unit owners.” Section 34-36.1-2.17(d).
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Plaintiff avers that Envine’s withdrawal and transfer of the Withdrawn Parcels “changed the
boundaries” of a unit and, therefore, required unanimous consent of the unit owners.
In responding to Plaintiff’s arguments, Defendant does concede that the Declaration did
not actually describe any specific portion of the Condominium Property that was subject to
withdrawal and that rather, it stated that the declarant had the right to withdraw any real estate
from the Condominium Property. However, Defendant suggests that the Declaration, read
together with § 34-36.1-2.10(d)(2), stands for the proposition that a withdrawal may be
accomplished by the declarant within a portion or sub phase of the Condominium Property,
without additional approvals, “provided that no units had been conveyed to a purchaser within
the affected sub phase.” Def’s Mem. in Opp’n to Pl’s Mot. for Summ. J. and Countermot. for
Sum. J. Defendant alternatively argues that, at the very least, there is a question of fact as to
whether the withdrawal was valid pursuant to the Declaration and the Condominium Act.
This Court finds the language of § 34-36-1-2.10(d) to be clear and unambiguous. The
Condominium Act clearly states that if all the land is subject to withdrawal, as Defendant admits
is the case here, none of the real estate may be withdrawn after a unit has been conveyed to a
purchaser. Because a number of units had been conveyed to purchasers prior to the purported
withdrawal, the declarant, Envine, no longer retained the power to withdraw.
Thus, its
withdrawal and attendant transfer was invalid. Defendant’s suggestion that a declarant may
withdraw real estate within a sub phase, if no units in that sub phase have been sold, is contrary
to the clear directive of the statute.
Defendant additionally argues that even if this Court finds the actual withdrawal to be
invalid, it should still be considered the record owner of the Withdrawn Parcels as a result of the
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statute of limitations for challenging the actions of a declarant. Defendant cites to § 34-36.12.17(b) and argues that it provides a one-year statute of limitations for actions challenging the
validity of a declarant’s amendatory actions. 6 Defendant claims that because Plaintiff did not
bring this action within one year of Envine’s withdrawal, Plaintiff is estopped from alleging that
the withdrawal was improper. Defendant’s reliance on this statute is misplaced.
As noted above, in American Condominium Assoc., the defendant, a successor declarant,
argued that the plaintiff’s challenge to amendments by a prior declarant was not timely filed
pursuant to § 34-36.1-2.17(b). Our Supreme Court disagreed with the defendant and upheld the
trial justice’s grant of summary judgment on the issue, holding that “. . . when, as here, the
amendment being challenged is determined to be void ab initio, the one-year statute of
limitations does not apply to any subsequent action taken by an interested party.” American
Condominium Assoc., 844 A.2d at 133 (citing Theta Properties v. Ronci Realty Co., 814 A.2d
907 (R.I. 2003)). In the instant matter, Plaintiff has successfully raised an ab initio challenge as
a result of the Court’s within holding that Envine improperly withdrew the Withdrawn Parcels.
Defendant’s argument that Plaintiff is barred by the one-year statute of limitations fails as a
matter of law. Accordingly, the Court finds that Envine’s purported withdrawal and conveyance
of the Withdrawn Parcels from the Condominium Property was without authority and void.
B
Adverse Possession
Defendant, however, argues that even if the transfer of the Withdrawn Parcels was
invalid, it is nonetheless entitled to possession of the parcels under the theory of adverse
possession. In support of this claim, Defendant alleges that there exists no genuine issue of
6
Section 34-36.1-2.17(b) provides that “[n]o action to challenge the validity of an amendment adopted by the
association pursuant to this section may be brought more than one year after the amendment is recorded.”
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material fact as to its actual and continuous possession of the Withdrawn Parcels for the requisite
statutory period.
Our Supreme Court has long held that “. . . to establish adverse possession, a claimant’s
possession must be ‘actual, open, notorious, hostile, under claim of right, continuous, and
exclusive’ for at least ten years.” Tavares v. Beck, 814 A.2d 346, 350 (R.I. 2003) (citations
omitted). “The party claiming adverse possession must establish each of these elements by strict
proof, that is, proof by clear and convincing evidence.” Id. In this instant, the primary issue to be
addressed by this Court is what time period should be considered in determining whether the
elements of adverse possession have been satisfied. This Court will address each of the parties’
arguments with respect to this issue.
Defendant, in support of its claim, argues that it has satisfied the elements of adverse
possession of the Withdrawn Parcels for a period in excess of the requisite ten years, particularly
since before severance of the Original Parcel in 1989. Thus, Defendant appears to be arguing
that the time-clock for adverse possession should start at some unidentified point, prior to 1989.
The Court disagrees. As this Court stated above, when it considered acquiescence of the Area of
Encroachment, the events that occurred prior to the severance of the Original Parcel are
irrelevant. In order to consider any period of time as qualifying for the maturation of an adverse
possession claim, another person must own the parcel over which the claim is advanced. Plainly,
one cannot adversely possess that which one owns. “It is axiomatic that where a party is in
actual possession, and has a right to possession under a legal title which is not adverse, but
claims the possession under another title which is adverse, the possession will not in law be
deemed adverse.” St. Jean Place Condominium Association v. DeLeo, 745 A.2d 738, 742 (R.I.
2000) (citations omitted); see also 3 Am. Jur. 2d Adverse Possession § 50 (1986) (“[a]
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possession that is in law rightful and not an invasion of the rights of others is never deemed to be
adverse”). As, such this Court finds Defendant’s argument respecting the time period for
calculating adverse possession to be unmeritorious.
In the alternate, Plaintiff advances two arguments with respect to the proper time period
to be considered when determining whether Defendant adversely possessed the Withdrawn
Parcels. In advancing both these arguments, Plaintiff operates on the assumption that the timeclock for adverse possession should begin running on the date of severance of the Original
Parcel, May 1, 1989.
Plaintiff’s first argument is based on the Notice of Intent, which it filed on April 14,
1999.
Plaintiff contends that the Notice of Intent disrupts Defendant’s claim for adverse
possession of the Withdrawn Parcels by effectively stopping the time-clock on April 14, 1999.
This argument is unavailing. Certainly, it is true that a claim for adverse possession may be
interrupted by the filing of a notice of intent. Expressly, our Supreme Court has explained that
there are:
“three methods by which a record owner can interrupt a claimant’s
adverse possession: (1) filing of an action to quiet title; (2) filing of
‘notice of intent to dispute’ adverse possession under § 34-7-6; and
(3) physical ouster of the claimant or a ‘substantial interruption’ of
the claimant’s possession by the record owner.” Carnevale v.
Dupee, 783 A.2d 404, 410 (2001) (citations omitted). (Emphasis
added.)
However, in the instant matter, the Notice of Intent filed by Plaintiff refers only to the Area of
Encroachment and makes no mention of the Withdrawn Parcels. Specifically, the Notice of
Intent states:
“Notice is hereby given by the Washington Village Country Club
and Residency Condominium Association, pursuant to R.I.G.L. 347-6 that it intends to dispute any right arising from any claim or
use that may be made by Par Four, Inc., a Rhode Island
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Corporation, or its successors, heirs, or assigns, resulting from an
encroachment by Par Four, Inc. upon the Washington Village
Country Club and Residency Condominium parcel, as referenced
on the attached ‘Property Line Plan for Washington Village
Condominiums,’ which is labeled Exhibit ‘A’ incorporated herein.
The plan referenced herein, prepared by R. C. Cournoyer
Enterprises, Inc., dated November 17, 1999 and revised on April
12, 1999, discloses an encroachment of certain golf course
improvements upon the Washington Village Country Club and
Residency Condominium Parcel by Par Four, Inc.” Notice of
Intent to Dispute Interrupting Adverse Possession, dated April 14,
1999.
Thus, because the Notice of Intent does not refer to the Withdrawn Parcels, Plaintiff’s reliance
on such to interrupt Defendant’s adverse possession claim is misplaced.
The second argument advanced by Plaintiff involves the import of the withdrawal and
conveyance of the Withdrawn Parcels on November 14, 1997. Specifically, Plaintiff claims that
this conveyance constituted a grant of permission by Envine for the owner of the golf course to
use the Withdrawn Parcels.
Thus, Plaintiff alleges that the withdrawal and concomitant
conveyance effectively broke the ten-year statutory period of adverse possession. This Court is
not of similar opinion.
In Sleboda v. Heirs at Law of Harris, 508 A.2d 652 (R.I. 1986), our Supreme Court was
faced with a similar argument to that advanced by Plaintiff. In Sleboda, the defendant argued
that the possessor’s entry upon land by a tax sale deed, albeit for a period of time well in excess
the requisite ten years, did not qualify as adverse possession. In rejecting the defendant’s
argument, our Supreme Court found that the statutes which address adverse possession:
“were not designed solely for the protection of trespassers and
tortious disseisors (although such persons may have benefited from
the statute of limitations) but were designed to quiet the title of
individuals who had acquired title by deed but whose deeds were
in some way defective.” Id. at 655.
15
Thus, our Supreme Court concluded that it “reject[ed] the argument that one who enters upon
real estate by deed, as opposed to tortious disseisin, may not have the benefit of quieting his [or
her] title by adverse possession.” Id. In light of this, it is clear that Plaintiff is incorrect when it
argues that an entry by deed of Par Four upon the Withdrawn Parcels destroys Defendant’s
adverse possession claim.
While the Court is not persuaded by Plaintiff’s above argument, this Court does find legal
significance in the conveyance of the Withdrawn Parcels. As stated above, in order to satisfy the
requirements of adverse possession a claimant must establish, among other things, that it
possessed the disputed property under a “‘claim of right . . . . for at least ten years.’” Tavares,
814 A.2d at 350 (citations omitted). Our Supreme Court has stated that “[p]ossession under a
claim of right means that the entry by the claimant must be in accordance with a claim to the
property as the claimant’s own with the intent to hold it for the entire statutory period without
interruption.” Id. at 351 (quoting 16 Powell on Real Property, § 91.05[4] at 91-28 (2000)).
Furthermore, “a claim of right may be proven through evidence of open, visible acts or
declarations, accompanied by use of the property in an objectively observable manner that is
inconsistent with the rights of the record owner.” Id.
In this instant, Defendant’s predecessor, Par Four, attempted to purchase the Withdrawn
Parcels from Envine for valuable consideration in the approximate amount of $50,000.
7
This
appears to have been neither a formal nor perfunctory transfer, whereby Par Four was merely
attempting to formalize its right to the Withdrawn Parcels. Rather, in this Court’s opinion, it is
7
The quitclaim deed evidencing the transfer of the Withdrawn Parcels was attached as part of “Exhibit 3” to
Plaintiff’s “Memorandum in Support of Plaintiff’s Motion for Partial Summary Judgment.” The deed contained a
stamp indicating that a tax of $140 had been paid as part of the transaction. The amount of tax imposed on a deed is
dictated by our General Laws, specifically § 44-25-1. In 1997, this section provided that “when the consideration
paid exceeds one hundred dollars ($100), a tax at the rate of one dollar and forty cents ($1.40) for each five hundred
dollars ($500) or fractional part thereof” shall be paid by the grantor. Section. 44-45-1(a) (1997). Thus, a tax in the
amount of $140 indicates a purchase price somewhere between $49,501 and $50,000.
16
clear that Par Four was endeavoring to divest Envine of title to the Withdrawn Parcels. Such
action necessarily constitutes recognition by Par Four that it neither had, nor was advancing, any
claim of right over the Withdrawn Parcels prior to the purchase. As such, Defendant can not
establish a claim of adverse possession at any time prior to the date of attempted conveyance in
1997. Thus, the time-clock could not have started to run, if at all, until November 14, 1997.
Because the within action was filed on June 22, 2005, it is clear that Defendant cannot satisfy the
requisite ten-year statutory period for adverse possession. Accordingly, this Court finds that
Defendant does not hold title to the Withdrawn Parcels pursuant to a theory of adverse
possession.
As Defendant has failed to satisfy the requirements of adverse possession and because
this Court found Envine’s purported withdrawal and conveyance to be invalid, Plaintiff is
entitled to summary judgment on Count IX of its amended complaint.
V
The Fairway Drive and Mashie Circle Easements
A
The Express Easements
The express easements at issue in this case, namely the Fairway Drive Easement and the
Mashie Circle Easement, afford Defendant and its patrons access to various portions of the Golf
Course Property. Plaintiff contends that these easements are invalid and thus, Defendant and its
patrons have no right to utilize them. 8 In support of this claim, Plaintiff advances two main
arguments.
First, Plaintiff claims that the granting of the two easements violated the
requirements of the Condominium Act. Expressly, Plaintiff maintains that under the
Condominium Act, the granting of an easement that burdens the common elements is void unless
8
Plaintiff states that it is undisputed that it alone owns and maintains Fairway Drive and Mashie Circle, over which
Defendant claims the disputed easements.
17
the transfer is permitted by way an 80% approval vote of the members of the condominium
association. See § 34-36.1-3.12. Plaintiff claims that Envine never sought such approval when
establishing the disputed easements. Secondly, Plaintiff argues that the Fairway Drive Easement
and the Mashie Circle Easement violate the express language of the Declaration. Specifically,
Plaintiff argues that the easements violate Article 5.4, which provides that a declarant may grant
an easement that is “. . . necessary for the development or improvement of the Property.”
Declaration of Condominium for Washington Village Country Club and Residency, art. 5.4(d),
dated June 23, 1989 (emphasis added). Plaintiff contends that the easements were not necessary
for the development or improvement of the Condominium Property and that the easements
burden the Condominium Property while benefiting only the Golf Course Property.
Accordingly, Plaintiff seeks a grant of summary judgment as to Counts III and VIII of its
amended complaint.
Defendant counters Plaintiff’s first argument, with respect to compliance with the
Condominium Act, by claiming that Plaintiff has offered no facts, affidavits, or voting records to
substantiate its claim that an 80% approval vote was not obtained. Regarding Plaintiff’s second
argument, Defendant disputes Plaintiff’s assertion that the easements are not “necessary” as
required by the Declaration. In particular, Defendant argues that the disputed easements not only
benefit the Golf Course Property, but also the Condominium Property. Defendant also notes that
municipal approval of the project was premised on the shared entry and access driveway,
common rights-of-way, and a readjustment of the layout of the golf course.
Because this Court finds that, as a matter of law, the granting of the Fairway Drive
Easement and the Mashie Circle Easement violated the terms of the Condominium Act, it is
unnecessary for the Court to address Plaintiff’s second argument respecting the Declaration.
18
The Condominium Act states that:
“Portions of the common elements may be conveyed or subjected
to a security interest or mortgage by the association if persons
entitled to cast at least eighty percent (80%) of the votes in the
association, including eighty percent (80%) of the votes allocated
to units not owned by a declarant, or any larger percentage the
declaration specifies, agree to that action; but all the owners of
units to which any limited common element is allocated must agree
in order to convey that limited common element or subject it to a
security interest or mortgage. The declaration may specify a
smaller percentage only if all of the units are restricted exclusively
to nonresidential uses. Proceeds of the sale are an asset of the
association.” Section 34-36.1-3.12(a).
In addition, the above section provides that “Any purported conveyance, encumbrance,
judicial sale or other voluntary transfer of common elements, unless made pursuant to
this section, is void.” Section 34-36.1-3.12(d). Although on its face, this statute appears
only to be addressing conveyances “by the association,” this Court turns to the
Commissioner’s Comment for further guidance. It states:
“Subsection (a) provides that, on agreement of unit owners holding
80% of the votes in the association, parts of the common elements
may be sold or encumbered. (80% is the percentage required for
termination of the condominium under Section [34-36.1-2.18].)
This power may be exercised during the period of declarant
control, but, in order to be effective, 80% of non-declarant unit
owners must approve the action.” Section 34-36.1-3.12 cmt. 5.
As the conveyance of the disputed easements took place during a period of declarant
control, it is clear that Envine was required to obtain an 80% approval by the non-declarant unit
owners. It appears that Envine failed to obtain the requisite approval and as such, the purported
transfer of the express easements in favor of Par Four was invalid. 9 Accordingly, this Court
9
As noted in the body of this Decision, Defendant argued that the Plaintiff offered no facts, affidavits, or voting
records to substantiate its claim that Envine never obtained the required 80% approval. This inappropriately
suggests that the burden is on Plaintiff to show that Envine did not procure the necessary approval. Implied within
subsection (d) of § 34-36.1-3.12 is the fact that the burden is on the entity seeking the benefit of the encumbrance,
here the Defendant, to show compliance with the statute. See Mattos v. Seaton, 839 A.2d 553, 557 (R.I. 2004)
19
finds that the express easements granted to Defendant’s predecessor, namely the Fairway Drive
Easement and the Mashie Circle Easements, are void as a matter of law. As stated above, it is
unnecessary for this Court to decide whether the easements also violated the Declaration.
Plaintiff is entitled to partial summary judgment on Counts III and VIII of its amended
complaint.
B
Easement by Prescription
In spite of the above, Defendant argues that it possesses the right to use Fairway Drive
and Mashie Circle as a result of certain equitable theories. Specifically, Defendant claims that it
possesses an easement by prescription and an easement by necessity over Fairway Drive and
Mashie Circle. 10 The Court will now address these claims.
Defendant advances the claim of an easement by prescription over Fairway Drive and
Mashie Circle in Count V of its counterclaim. 11 An easement is defined as “[a]n interest in land
owned by another person, consisting in the right to use or control the land, or an area above or
below it, for a specific limited purpose.” Black’s Law Dictionary 414 (7th ed. 2000). An
easement by prescription is specially defined as “[a]n easement created from an open, adverse,
and continuous use over a statutory period.” Id. at 416. Our Supreme Court has explained that
“[o]ne who claims an easement by prescription bears the burden of establishing actual, open,
notorious, hostile, and continuous use under a claim of right for at least ten years.” Stone v.
(“…the party claiming the benefit of an [implied] easement must demonstrate its existence by clear and convincing
evidence.”).
10
Count VI of Defendant’s counterclaim is entitled “Declaratory Judgment – Easement by Necessity.” However, in
its brief, Defendant uses the broader term “easement by implication” and the narrower term “easement by necessity”
interchangeably.
11
In Count V, Defendant asserts a prescriptive easement solely over the areas known as the Fairway Drive Easement
and the Mashie Circle Easement. However, in its memorandum of law, Defendant at one point appears to imply that
it is also claiming a prescriptive easement over the Withdrawn Parcels. This issue is not further briefed nor
mentioned again. Thus, this Court will not address such claim, if any does indeed exist. In the event that it is
Defendant’s intention to advance such argument, this Court would find that whether Defendant is entitled to a
prescriptive easement over the Withdrawn Parcels is an issue of fact.
20
Green Hill Civic Ass’n, Inc., 786 A.2d 387, 389 (R.I. 2001). Further, “[t]he determination of
whether or not a claimant has satisfied the burden of proving each of these elements by clear and
satisfactory evidence involves an exercise of the fact-finding power.” Id. at 389 - 390.
Defendant argues that it, along with its predecessors, have adversely and continuously
used and occupied Fairway Drive and Mashie Circle since, and in some cases prior to, the time
that the golf course was approved and configured. Defendant further notes that an adverse
claimant may tack on the period of possession of his predecessor from whom he has derived
title. 12 In support of its position, Defendant relies on the affidavits of Mr. Votolato, an employee
of Defendant, and Mr. DiPadua, a regular member of the golf course. Both affiants generally
aver that since the golf course was first built and began operating, the land upon which
Defendant now seeks an easement was continuously used by the golf course patrons. Plaintiff
responds to Defendant’s argument by again relying on its Notice of Intent. Plaintiff argues that
the filing of such notice interrupted any possible claim by Defendant under the theory of
easement by prescription.
This Court finds that Plaintiff’s reliance on the filing of its Notice of Intent must fail here
for the same reason it failed to defeat Defendant’s adverse possession claim to the Withdrawn
Parcels. The Notice of Intent exclusively refers to the Area of Encroachment, and mentions
neither the Fairway Drive Easement nor the Mashie Circle Easement. As a result, Plaintiff
cannot rely solely on the Notice of Intent to defeat Defendant’s easement by prescription claim.
However, as stated above, a claim of easement by prescription requires findings of fact.
See Gardner v. Baird, 871 A.2d 949, 954 (R.I. 2005) (citing Stone v. Greenhill Civic Ass’n, Inc.,
786 A.2d 387, 391 (R.I. 2001) (“Factual determinations are generally necessary to determine
12
Tacking – “the joining of consecutive periods of possession by different persons to treat the period as one
continuous period” Black’s Law Dictionary 1465 (7th ed. 1999) – is permitted under § 34-7-1 and has been
recognized by our Supreme Court. See Taffinder v. Thomas, 199 R.I. 545, 381 A.2d 519 (1977).
21
whether the claimants have established the elements of a prescriptive easement.”)
While
Defendant has provided some evidence regarding its claim in the form of affidavits, such a scant
amount of evidence cannot be considered sufficient to satisfy the elevated standard of proof
required with regard to each element of a prescriptive easement claim. 13 Accordingly, the issue
cannot properly be decided by way of summary judgment at this time. Thus, summary judgment
as to Count V of Defendant’s counterclaim is denied.
C
Easement by Implication
In Count VI of its counter-claim, Defendant claims an easement by implication over
Fairway Drive and Mashie Circle. An easement by implication is “an easement not expressed by
the parties in writing, but arising out of the existence of certain facts implied in the transaction.”
25 Am. Jur. 2d Easements § 19 (2004). Our Supreme Court has recognized that an implied
easement may arise in the following circumstances: (1) from a “pre-existing condition,” also
known as a “quasi easement,” Wiesel v. Smira, 49 R.I. 246, 248-49, 142 A. 148, 149 (1928); see
also Catalano v. Woodward, 617 A.2d 1363, 1367 (R.I. 1992); (2) “by necessity,” Bovi v.
Murray, 601 A.2d 960, 962 (R.I. 1992); see also Nunes v. Meadowbrook Dev. Co., Inc., 824
A.2d 421, 425 (R.I. 2003); or (3) “by reference to a map or plat,” Kotuby v. Robbins, 721 A.2d
881, 883-84 (R.I. 1998). It is well-settled in this jurisdiction that the party claiming the benefit
of an implied easement must demonstrate its existence by clear and convincing evidence. Mattos
v. Seaton, 839 A.2d 553, 557 (R.I. 2004). The Court will now address the three types of implied
easements in seriatim.
13
“It is firmly established that one who claims an easement by prescription bears the burden of establishing actual,
open, notorious, hostile, and continuous use under a claim of right for at least ten years.” McAusland v. Carrier, 880
A.2d 861, 863 (R.I. 2005).
22
1
Preexisting or Quasi Easement
A quasi easement, or easement by preexisting use or condition, is an implied grant of an
easement based on the presumed intent of the parties upon the severance of common ownership.
See Wiesel, 49 R.I. at 248-49, 142 A. at 149. As one commentator noted, this situation arises:
“where a property owner has used one part of a single piece of
property for the benefit of another part of the property, and then
divides the property, the possessor of the previously benefited
portion of the land may also possess an easement over the
previously burdened part of the property.” 7 Thompson on Real
Property, The Law of Easements, § 60.03(b)(4) (1994).
Stated differently, “[t]o create an easement by implication from a preexisting use imposed on one
part of the property for the benefit of another part, there must be unity of title and a subsequent
severance thereof.” 25 Am. Jur. 2d Easements § 25 (2004). Additionally, “the property must
have been openly used in a manner constituting a quasi-easement while it was in a single
ownership.” Id. When the property is divided, it is presumed that the common grantor intended
that the quasi easement continue as a true easement. Id. The presumption is based upon the
theory that “the parties contracted with a view to the condition of the property as it actually was
at the time of the transaction.” Id. at § 24. Following these principles, our Supreme Court has
held that “upon the severance of a heritage, a grant will be implied of all those continuous and
apparent easements which have in fact been used by the owner during the unity, though they
have no legal existence as easements.” Catalano, 617 A.2d at 1367.
23
In the instant matter, it is undisputed that the Original Parcel was under unity of title until
the division that created the Condominium Property occurred. 14 Our Supreme Court has held
that “[a] quasi easement arises out of circumstances from which the court finds an indication of
the probable intention of the parties.” Wiesel, 49 R.I. at 250, 142 A. at 150. Whether, upon
severance of the Original Parcel, the parties intended that an easement arise granting the golf
course owner an easement to use Fairway Drive or Mashie Circle, is a question of fact.
Accordingly, summary judgment cannot be granted pursuant to this theory.
2
Implied Easement by Necessity
Defendant also argues that it possesses an implied easement by necessity to use Fairway
Drive and Mashie Circle. As to necessity, Defendant argues that at the time of severance of the
Original Parcel, Fairway Drive provided the sole means of access to its clubhouse and utility
barn. Defendant also argues that without use of Mashie Circle, its golfers cannot travel between
holes, and a substitute route would involve unreasonable trouble and expense.
Plaintiff counters by suggesting that an easement by necessity usually arises when a
conveyance will result in either the granted or retained parcel being landlocked, and in such a
situation, the easement is necessary for the claimant to access the outside world. Plaintiff argues
that Defendant merely claims a necessity based on convenience and comfortable enjoyment of
the Golf Course Property.
Plaintiff further alleges that because Defendant already enjoys
unrestricted access to and from the golf course, Defendant has not shown the requisite necessity
that would validate the granting of any easement. Plaintiff also cites to Weisel, wherein the
14
Plaintiff notes such fact in support of its argument against Defendant’s claim for adverse possession. However,
curiously, Plaintiff later argues that there was no unity of title and, therefore, there can be no implied easement.
Specifically, Plaintiff claims that when Envine purportedly granted the easements in 1997, it did not own either the
Golf Course Property or the Condominium Property and, in fact, only retained development rights and special
declarant rights. The Court finds Plaintiff’s argument to be without merit. The relevant time for determining if an
implied easement was created is May of 1989 when the Original Parcel was severed.
24
Court held that “no necessity can exist and consequently no easement be implied where a
substitute can be procured without unreasonable trouble or expense.” Weisel at 250, 142 A. at
150.
Both Plaintiff and Defendant misstate the requirements and oversimplify the issue of
whether an implied easement by necessity exists in this case. Our Supreme Court has held:
“[w]hether an easement exists by necessity is a question of fact.
This Court has held, a trial justice sitting as a fact-finder is charged
with the duty to draw inferences from established facts and that his
or her conclusion will be accepted by this Court if the inference he
[or she] drew was reasonable even though other equally reasonable
inferences might have been drawn. This Court has ruled that the
test of necessity is whether the easement is reasonably necessary
for the convenient and comfortable enjoyment of the property as it
existed when the severance was made. Moreover, this Court should
consider whether a substitute could be procured without
unreasonable trouble or expense.” Nunes v. Meadowbrook Dev.
Co., 824 A.2d 421, 425 (R.I. 2003) (internal citations omitted).
Additionally, “the burden of proving that an alternative mode of access is not available is on the
person claiming the easement by necessity.” 25 Am. Jur. 2d Easements § 37 (2004).
It is clear that when the severance of the Original Parcel occurred, substantial portions of
what became the Condominium Property were in use by Defendant’s predecessors and its
patrons. Whether an easement by necessity over Fairway Drive or Mashie Circle was created
upon this division is an issue of fact. Plaintiff’s argument that an easement by implication or
necessity cannot be found with respect to Fairway Drive and Mashie Circle because such roads
did not exist at the time of the severance is unavailing. The mere fact that the paths traveled may
not have been paved, or named as such, is irrelevant to the issue.
Additionally, whether
substitute access can be procured by a reorientation of the golf course without reasonable trouble
or expense, or whether such expense would be unduly troublesome and unreasonable, is a
25
question of fact to be decided at trial. Thus, summary judgment cannot be granted pursuant to
this theory.
3
Implied Easement by Reference to a Map or Plat
Defendant claims that the rights-of-way and interior paths leading to its clubhouse and
barn, and the paths between the golf course’s holes and tees in proximity to Mashie Circle are
memorialized on the original platted subdivision of the land. Thus, Defendant concludes that as
a matter of law it retains the right to use those referenced rights-of-way. In support of this
argument, Defendant cites to Kotuby v. Robbins, 721 A.2d 881 (R.I. 1998) and Bitting v. Gray,
897 A.2d 25 (R.I. 2006). Defendant relies on both cases for the proposition that when a lot is
sold by reference to a plat, there is an implied preservation of those rights of ways that are
referenced.
In Bitting our Supreme Court found that:
“When a property owner subdivides land and sells lots with
reference to a plat, he [or she] grants easements to the purchasers
in the roadways shown on the plat, with or without later dedication
of the roadways to the public. In the absence of dedication to the
public, the easement depicted on the plat is appurtenant to the
property and passes with the conveyance of the property, unless
specifically excluded, even though not mentioned in the deed.” Id.
at 32 (citations omitted).
Further, our Supreme Court went on to state that “[d]isputes surrounding easements over roads
depicted on recorded plats, ‘should rise or fall by reference to the plat on which the disputed
parcel is depicted.’” Id. at 32 (quoting Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1042 (R.I.
2005). In light of the above, it is clear that in order to make a proper inquiry under this theory,
26
one must focus on what is actually depicted on the recorded plat.
In the instant matter,
Defendant does claim to have submitted the original subdivision plan for the Original Parcel as
an exhibit. However, there were multiple plans submitted as exhibits and it is unclear which plan
Defendant is referencing. 15 Notwithstanding this confusion, this Court does not believe that it
can properly determine what is actually referenced on the plat without a knowledgeable witness
testifying to the same. As such, whether an easement by reference to a map or plat exists is an
issue of fact to be determined at trial. Summary judgment cannot be granted on this theory.
VI
Conclusion
After reviewing the numerous memoranda and exhibits submitted in support of each
party’s motions for summary judgment, this Court grants certain motions in part and denies all
remaining motions. 16 In particular, Plaintiff is entitled to a grant of summary judgment as to
Count II of its amended complaint, which seeks a declaration that Plaintiff owns the Area of
Encroachment. Additionally, Plaintiff is entitled to a grant of summary judgment on Count IX
of its amended complaint, which seeks declaratory relief regarding the ownership and use of the
Withdrawn Parcels. With respect to Counts III and VIII of Plaintiff’s amended complaint, which
seek declaratory relief relating to the use of Fairway Drive and Mashie Circle, Plaintiff is entitled
to a grant of partial summary judgment. Specifically, this Court finds that the express easements
known as the Fairway Drive Easement and the Mashie Circle Easement, granted by Envine to
15
In its memorandum, Defendant cites to “Exhibit 4” as containing the subdivision plan. However, this exhibit
actually contains the “Golf Course/Condominium Proposal” that was submitted to the Town of Coventry.
16
Both parties to this action submitted multiple memoranda in support of their motions for summary judgment.
Countless arguments were raised within the memoranda and at oral argument. While most arguments were
thoroughly briefed, some were presented with a “kitchen sink” approach and were either insufficiently supported or
not supported at all. The Court considered all arguments raised by both parties in rendering this decision. Certain
arguments that were briefly raised in the memoranda were not addressed in this Decision. The Court deemed these
arguments inconsequential and not requiring discussion. See Wilkinson v. State Crime Laboratory Comm’n, 788
A.2d 1129, 1131 n. 1 (R.I. 2002) (Noting that raising arguments but failing to brief them properly and not giving a
meaningful discussion “does not assist the Court in focusing on the legal issues raised”).
27
Par Four, are void and invalid. Whether Defendant has the right to use Fairway Drive or Mashie
Circle pursuant a theory of easement by prescription, implication, or reference to a map or plat is
an issue of fact to be decided at trial. Counsel shall submit an appropriate order for entry in
accordance with this Decision.
28
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