MISC 316972

October 14, 2008


Piper, J.


Plaintiff Constance Moore commenced this action in this court on December 21, 2005 against defendants William Greeley and Beverly Greeley (“Greeleys”). Defendants filed their answer on January 17, 2006.

Moore owns of record a parcel of land (“Moore Property”) located at 17 Thornton Park in Winthrop, Massachusetts. The Greeleys own of record a parcel of land at 15 Thornton Park, also in Winthrop (“Greeley Property”). At issue in this case is a nine-foot right of way (“disputed right of way”) that runs over the Greeley Property, from the Moore Property to the public street, Thornton Park. I am called upon to decide whether the right of way allows vehicular traffic, or whether it is limited to pedestrian traffic.

The Moore Property was conveyed to the plaintiff by quitclaim deed from her mother, Ruth R. Moore, dated June 21, 2000, and recorded with the Suffolk Registry of Deeds (“Registry”) in Book 25064, Page 231. Ruth R. Moore was granted the Moore Property by a quitclaim deed from Darien S. and Elinor H. Terrile, dated July 17, 1964, and recorded with the Registry in Book 7866, Page 316. These deeds are similar in language, and each contains the following:

Said premises are conveyed together with a perpetual right of way on, over or in a strip of land nine (9) feet wide extending from Thornton Park to the granted premises as particularly described in that certain deed from Kate S. Payne to Skillings et ux recorded with Suffolk Deeds, Book 6323, Page 483 and shown on “Plan of Land in Winthrop, Mass., October 2, 1950, Whitman & Howard, C.E.” recorded with said Deeds, Book 6649, Page 196.

This language was intended to grant a right of way over the land currently owned by the defendants. Plaintiff does not have direct access to Thornton Park without passing over defendants’ property or some other party’s land.

The Greeley Property was conveyed to the defendants by quitclaim deed from Hyman and Celia Goren, dated September 1, 1977 and recorded with the Registry in Book 8981, Page 494. The deed contains the following language:

Subject to a nine (9) foot wide right of way as contained in deed from Kate Payne to Vernon and Doris Skillings recorded with Suffolk Deeds, Book 6323, page 483.

The Greeley Property has frontage on Thornton Park.

The parties agree that the right of way created in the deed from Kate Payne to Vernon and Doris Skillings (“Payne Deed”), dated April 26, 1947, burdens the Greeley Property and benefits the Moore Property. In part, the Payne Deed states:

The grantor also grants to the grantees, their heirs and assigns a perpetual right of way on, over and in, a strip of land, nine feet wide, and extending from the boundary line of the Grantor’s premises on Thornton Park, and running along the Northern boundary thereof, the northern line of said strip being approximately three feet, and the southern line being approximately twelve feet from said northern boundary, and running parellel [sic] thereto, and extending to the westerly boundary of the premises granted herewith; being that part of the grantor’s premises and an extension thereof, marked “Drive” on Plan of grantor’s property by Whitman & Howard, Civil Engineers Boston, and dated December 1908.

The parties disagree as to whether the right of way is limited to pedestrian traffic or is available for vehicular traffic. The plaintiff wishes to use the roughly 75 foot long right of way to drive her vehicle from Thornton Park to her home. The defendants use this right of way to park their vehicles, which prevents the plaintiff from using the right of way for vehicular travel, but does not prevent her from using the right of way for pedestrian travel.

The complaint filed by the plaintiff on December 21, 2005 includes a request that the court declare that the plaintiff has an easement for all purposes including use as a driveway over the disputed right of way. On February 3, 2006, plaintiff filed a motion for preliminary injunction, with a memorandum in support. By way of relief, plaintiff requested that the court enjoin defendants from parking in the disputed right of way, from obstructing plaintiff’s access by automobile to her house over the right of way, or otherwise interfering with plaintiff’s use of the disputed right of way. This motion was denied; the court ruled that the plaintiff had failed to show a likelihood of irreparable harm if her right of way continued to be used by the defendants to park their vehicles.

The parties filed their joint pre-trial memorandum on December 31, 2007, and I conducted a pre-trial conference on January 4, 2008. In the presence of counsel and the parties I took a view of the disputed right of way and surrounding area on January 17, 2008. Trial took place the same day. No court reporter being present, the proceedings were digitally recorded; no transcript was prepared. The following testified: Constance Moore, William Greeley, and Beverly Greeley. Plaintiff’s and defendants’ post-trial memorandums were filed on February 7, 2008. Defendants’ request for findings of fact and rulings of law was filed the same day.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the parties, I find the following facts and rule as follows:

For the reasons given below, I find and rule that Moore has not satisfied her burden of proof with respect to the claim that vehicular travel should be allowed on the right of way benefitting her property. Accordingly, judgment is to enter that the right of way is to be used only for pedestrian travel, and the Greeleys may use the right of way in any manner which does not hinder pedestrian travel.


The party asserting an easement has the burden of proving the nature and extent of any such easement. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 (2006). To determine the intended use of the disputed right of way, the court must arrive at the presumed intent of the grantor from the words used in the deeds, “construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). When the language of the applicable instruments is “clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Cook v. Babcock, 61 Mass. 526 (1851). Accord Panikowski v. Giroux, 272 Mass. 580 , 582 (1930); Westchester Assoc., Inc. v. Boston Edison Co., 47 Mass. App. Ct. 133 , 135 (1999). “[T]he words themselves remain the most important evidence of intention,” Robert Indus., Inc. v. Spence, 362 Mass. 751 , 755 (1973), quoting from National City Bank v. Goess, 130 F.2d 376, 380 (2d Cir. 1942), but those words may be construed in light of the attendant circumstances, Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005), and “the objective circumstances to which [the words refer].” McLaughlin v. Selectmen of Amherst, 422 Mass. 359 , 364 (1996), citing Butler v. Haley Greystone Corp., 352 Mass. 252 , 257 (1967). “[T]he grant or reservation [creating an easement] ‘must be construed with reference to all its terms and the then existing conditions as far as they are illuminating’” (emphasis in original). Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443 , 444 (1990), quoting from J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923).

The owner of an easement bears the responsibility of keeping it in day-to-day repair. Prescott v. White, 21 Pick. 341 , 342 (1838). The owner of the property burdened by the easement, on the other hand, may not use his land in a way that will interfere with the easement owner’s right of use. New York Central R. R. v. Ayer, 242 Mass. 69 , 75 (1922). The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the estate holder’s exercise of rights. United States v. Sea Gate, Inc., 397 F.Supp. 1351, 1358 (D.C.N.C. 1975).

It is the plaintiff’s burden to show that the disputed right of way allows vehicular travel. Said another way, the plaintiff must prove, by a preponderance of the evidence, that the disputed right of way was intended to be used for vehicular travel. If the disputed right of way was intended to be used for vehicular travel, then the plaintiff would be entitled to use the right of way in that manner, and the defendants would be prohibited from any action that would impede such a use. If, on the other hand, the disputed right of way was intended only for pedestrian travel, then the plaintiff would not be allowed to use it for vehicular travel, and the defendants would be able to use it in any manner that did not impede the plaintiff’s pedestrian use. There was conflicting testimony as to how the right of way was used over the last forty years, but on all the evidence, I am not convinced by a preponderance of the evidence that the disputed right of way was intended to be used for vehicular traffic.

The language granting the right of way changed from the initial grant to subsequent grants. In the Payne Deed of 1947, the grant references a plan from 1908 that marks the disputed right of way as “Drive.” The word “drive” as a noun means “a road for automobiles and other vehicles.” American Heritage Dictionary 429 (4th ed. 2002). This is the best evidence that the grantor intended the right of way to be used for vehicular access. However, the plan was never produced by either party. In the subsequent deeds conveying the Moore Property (from 1964 and 2000), the disputed right of way is referenced on a plan from 1950 which describes the area as a “way.” The word “way” means “[a] road, path, or highway affording passage from one place to another.” Id. at 1551. This definition specifies neither vehicular nor pedestrian traffic. From this sparse evidence it is impossible to conclude that the plain language of the deeds intended the disputed right of way to be used for vehicular travel. It therefore is necessary to examine the attendant circumstances to construe the words of the deeds and the then existing conditions as far as they are illuminating.

The plaintiff in her testimony gave a brief history of the Moore Property, stating that her mother had purchased the land from a pediatrician and that earlier it had been a print shop. At one time the building on the Moore Property had served asa narrow gauge rail station, although on all the evidence I find that it was not so used in its current location; the structure had been a rail station on other land and then, when that use ceased, it was moved to the Moore Property. This entire line of testimony failed to shed light on how the right of way was used prior to 1964, when the plaintiff’s mother purchased the property. The testimony also gave little indication that the plaintiff’s mother ever used the right of way for vehicular access after 1964. Plaintiff testified that her mother parked behind the house on the Greeley Property prior to 1971, when the Greeleys began renting the property they later purchased. This would have required using the right of way for her vehicle. However, this evidence was inconsistent in important places. Plaintiff also testified, for example, that her mother only parked on the right of way during periods of inclement weather. This left the court with evidence that was conflicting and lacking in persuasive power.

Plaintiff testified that there is a narrow cement walkway over the right of way from her house to Thornton Park. This evidence was documented through photographs and suggests that the right of way was intended for pedestrian use only; the sidewalk was inconsistent with intentional regular vehicular passage up and down the right of way. In addition, plaintiff testified that she had, in the period leading up to the initiation of this action, driven at times over the right of way. (It was the controversy that developed over her doing so that led to the filing of the complaint.) On the occasions when she did drive on the right of way, plaintiff left tire ruts in the grass that exists on the substantial portion of the right of way that is not covered with the cement walkway. The fact that plaintiff’s periodic driving of a vehicle over the right of way left ruts, and the fact that there were no ruts present on the grassy areas before plaintiff’s most recent exercise of her purported right to drive there, indicate to me that the right of way had not been driven over, at least for some time, prior to the episodes of driving by plaintiff that precipitated the filing of this lawsuit.

Both defendants testified that Ruth Moore, on relatively infrequent occasions, used the right of way to park her car during periods of inclement weather. The evidence establishes, however, that she did so after requesting and receiving permission to do so from the owners of the Greeley Property. It is clear that there was in this neighborhood a need to remove vehicles from the public street, Thornton Park, when snow fell and the municipality needed the streets kept free of parked cars to facilitate snow plowing. When this happened, at times Ruth Moore would make use of the front part of the disputed right of way to store her car until curbside parking on the street could resume. She did so, I find, however, with permission of the owners of the strip, and not as a matter of right which they at all recognized under the recorded grants. There was no evidence I credit that on these limited occasions, or indeed on any others, Ruth Moore regularly and consistently drove her car over the right of way to access her home, as the plaintiff currently wishes to do.

The evidence also established that Ruth Moore for a time parked off the street on the property of a neighbor who lived across the street from the Greeley Property. She did so by arrangement with that neighbor. This suggests strongly that she did not appreciate that her rights in the disputed strip encompassed the right her daughter now claims, the right to drive freely back and forth over the right of way.

I also am persuaded to conclude, as I do, that right to drive freely over the disputed strip was not intended by the relevant conveyancing documents because of the layout and configuration of the strip and the two properties involved. The lots are small, in a densely settled urban setting, and the improvements on the Moore Property and Greeley Property are tightly packed together. The strip is narrow, runs alongside the house on the Greeley Property, and even if the strip were to be paved, it would require careful negotiation with a car or truck to navigate safely. There is insufficient room within the strip for a car to reverse direction. At the terminus of the strip, where it meets the Moore Property, there is no area cleared for or devoted to parking. There is not on the Moore Property an area which lends itself to turn a vehicle around so that it could drive, head first, down the seventy-five foot length of the right of way to Thornton Park. It would be possible to execute such a maneuver, involving a three-point turn, on the Moore Property, but only by moving back and forth over a grassy area that is the small front lawn available to that parcel in front of the structure there. And it would be a challenge safely to back down the strip from the Moore Property to the street with a large car or other vehicle being driven in reverse. All of this convinces me that the plaintiff does not hold the right she claims to drive vehicles freely over the disputed strip to get between Thornton Park and her house on the Moore Property.

I find and rule that the plaintiff has not met her burden of showing that the right of way was intended for free and unlimited vehicular passage. The language of the relevant title documents does not establish the creation of such a right. Although there is some evidence that at times the right of way may have been used in the past by vehicles associated with the Moore Property, there is insufficient evidence on which to base any finding that there was at any time regular, meaningful use of the right of way in that fashion. There is no basis to award any equitable relief to the plaintiff, who has failed to carry her burden of proof. Judgment will enter declaring that the right of way is to be used by the plaintiff for pedestrian access only, that the defendants may not use the right of way in such a manner that hinders the plaintiff’s pedestrian use of the right of way, but that the defendants may make all other use of the right of way which is not inconsistent with the plaintiff’s reasonable use of it for pedestrian passage. Because there has been no showing that parking by defendants in the disputed strip of two vehicles, aligned front to back in the area closest to their house, has interfered with plaintiff’s pedestrian rights in the strip, this use will not be enjoined.

Judgment accordingly.

Gordon H. Piper


Dated: October 14, 2008