FRANCIS J. NOYES, JR., as Trustee of the FRANCIS J. NOYES, JR. REAL ESTATE TRUST vs. ROBBIN F. LAWRENCE, JACK S. KOFFMAN, LAUREN E. SELLARS, JEFFREY AUBUCHON, THOMAS L. SANGIOLO, and SYLVIA E. SANGIOLO

Plaintiff Francis J. Noyes, Jr. ("Noyes"), as Trustee of the Francis J. Noyes, Jr. Real Estate Trust (the "Trust") ("Plaintiff") filed his Verified Complaint on September 26, 2005, naming Defendant Robbin F. Lawrence ("Lawrence"), Defendant Jack S. Koffman ("Koffman"), Defendants Lauren Sellars and Jeffrey Aubuchon ("Sellars/Aubuchon"), and Defendants Thomas L. Sangiolo and Sylvia E. Sangiolo (the "Sangiolos") (together, "Defendants") as parties in interest, and seeking a declaratory judgment pursuant to G. L. c. 231A relative to rights in property owned by Plaintiff and located at 207 Whiley Road, Groton, MA ("Plaintiff Property"). [Note 1], [Note 2] Plaintiff's Complaint also sought equitable relief involving right, title or interest in land pursuant to G. L. c. 185, § 1(k), with respect to a right-of-way (the "Cupples Right of Way") and alleging a trespass by Lawrence involving right, title or interest in real estate pursuant to G. L. c. 185, § 1(o), all relating to Plaintiff Property. On the same day Plaintiff filed his Motion for Preliminary Injunction, which was heard on September 30, 2005. By Order dated October 3, 2005, this court allowed an agreement of the parties in place of ruling on Plaintiff's Motion for Preliminary Injunction. [Note 3] On November 14, 2005, Koffman filed his Answer, Counterclaim alleging an easement by prescription over Plaintiff Property, and Cross-Claims alleging an easement by prescription over properties owned by Lawrence (Lots 3 and 7), Sellars/Aubuchon (Lot 8), and the Sangiolos (Lots 9-12), and a deeded easement over property owned by the Sangiolos. Sellars/Aubuchon filed their Answer, Counterclaim alleging an easement by prescription or an easement by necessity over Plaintiff Property, and Cross-Claims alleging an easement by deed, prescription, or necessity over property owned by the Sangiolos, Lawrence, and Koffman, on November 21, 2005. On November 25, 2005, the Sangiolos filed their Answer, and Cross-Claims alleging exclusive rights in their driveway (the East Driveway, as hereinafter defined) and the portion of the Cupples Right of Way that crosses Lot 12 against Lawrence, Koffman, and Sellars/Aubuchon. On December 2, 2005, Plaintiff filed his Answer to Counterclaim of Koffman, and the Sangiolos filed their Answer to Cross-Claims of Sellars/Aubuchon and Koffman. Koffman filed his Answer to the Cross-Claims of Sellars/Aubuchon, and Answer to Cross-Claims of the Sangiolos, on December 8, 2005. On December 12, 2005, Plaintiff filed his Answer to Counterclaim of Sellars/Aubuchon. Lawrence filed a letter on December 13, 2005, which this court has accepted as an Answer to all pleadings. [Note 4]

Plaintiff filed his Motion for Summary Judgment on January 16, 2007, together with supporting memorandum, Statement of Material Facts, and Appendix containing Affidavit of Francis J. Noyes, Jr. On February 14, 2007, Koffman filed his Opposition, supporting memorandum, Statement of Additional Material Facts, Appendix containing Affidavits of Paul Gron ("Gron"), Jack S. Koffman and James K. Belcher ("Belcher"), and Motion to Strike the Affidavit of Noyes. On February 21, 2007, the Sangiolos filed their Opposition and Motion for Partial Summary Judgment and Declaration, together with supporting memorandum, Statement of Additional Material Facts, Appendix, and Affidavits of Onorina Z. Maloney (Groton Town Clerk) and Sylvia E. Sangiolo. On February 26, 2007, Lawrence filed a document entitled "Response to Plaintiff's Statement of Material Facts." On April 11, 2007, Koffman filed his Opposition to the Sangiolos' Motion for Partial Summary Judgment, together with supporting memorandum. On July 20, 2007, the Sangiolos filed a supplemental memorandum, together with a second affidavit of Sylvia E. Sangiolo. A hearing was held on all motions on July 23, 2007, and all motions were taken under advisement. Plaintiff filed supplemental memoranda on July 30, 2007 and August 7, 2008, regarding his trespass action. The Sangiolos filed supplemental exhibits on September 25, 2007.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Correction, 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Lorne L. Cupples ("Cupples") received a deed from Nellie B. Ferrin of property located on Knop's Pond in Groton, Massachusetts dated July 9, 1908, and recorded with the Registry at Book 3379, Page 105. The Cupples property had no frontage on any public or private way, and this deed did not include any easement rights. [Note 5] Cupples divided the property into sixteen lots by plan titled "Plan of Land Showing Camp Sites Belonging to L. L. Cupples. Groton, Mass." dated September 1908, and recorded with the Registry at Plan Book 176, Plan 27 (the "1908 Plan").

2. Cupples conveyed Lot 8 on the 1908 Plan to Oliver D. Lombard ("Lombard") by deed dated September 9, 1908, and recorded at the Registry at Book 4316, Page 89. There were no easement rights stated in the deed. Sellars/Aubuchon are the current owners of Lot 8 by deed dated August 11, 2004, and recorded with the Registry at Book 43672, Page 414. Lot 8 is known as 213 Whiley Road, Groton.

3. Cupples conveyed Lots 1, 2, 15, and 16 to W. Arthur Burrington by deed dated February 19, 1910, and recorded with the Registry at Book 3534, Page 579. There were no easement rights stated in the deed. Edward G. Parlee and Mary F. Parlee (the "Parlees") (not a party to this action) are the current owners of Lot 1 by deed dated May 14, 1979, and recorded with the Registry at Book 13694, Page 262. [Note 6] Lawrence is the current owner of Lot 2 by deed dated June 7, 1971, and recorded with the Registry at Book 12011, Page 201. [Note 7] Lot 2 is known as 187 Whiley Road, Groton. Lawrence leases Lot 2 to others. Plaintiff is the current owner of Lots 15 and 16. [Note 8] Lots 15 and 16 are part of Plaintiff Property.

4. Cupples conveyed Lots 5, 6, and 13 to Whiley F. Johnson by deed dated March 1, 1910, and recorded with the Registry at Book 3536, Page 310 (the "March 1910 Deed"). The deed grants the following easement rights: "[t]here shall be a twenty foot right of way for occupants of lots one, two, three, four, fourteen, fifteen and sixteen on plan through that portion of lot thirteen bordering lots five and six as is shown on plan." Koffman is the current owner of Lot 6, known as 209 Whiley Road, Groton, by deed dated October 10, 1986, and recorded with the Registry at Book 17486, Page 527. [Note 9], [Note 10] Plaintiff is the current owner of Lots 5 and 13. [Note 11]

5. Cupples conveyed Lot 3 and the westerly half of Lot 14 to W. Arthur Burrington by deed dated March 1, 1911, and recorded with the Registry at Book 4072, Page 321. There are no easement rights granted in the deed. Lawrence is the current owner of Lot 3, known as 191 Whiley Road, Groton, by deed dated October 15, 1979, and recorded with the Registry at Book 13813, Page 430. Lawrence leases Lot 3 to others. Plaintiff owns the westerly half of Lot 14. [Note 12]

6. Cupples conveyed Lots 9, 10, 11, and 12 to Charles Woodman by deed dated May 1, 1911, and recorded with the Registry at Book 3610, Page 512 (the "May 1911 Deed"). The deed grants the following easement rights: "[t]here shall be a 20 ft. right of way through this land for the use of occupants of other lots to the west of this land. Said right of way shall be located as shown in [the 1908 Plan]." The Sangiolos currently own Lots 9-12 (the "Sangiolo Property") which are known as 215 Whiley Road, Groton, by deed from Wellman E. Parker, Ernest N. Parker, and Barbara Parker Pike dated June 8, 1994, and recorded with the Registry at Book 24672, Page 340 (the "Sangiolo Deed").

7. Cupples conveyed Lot 4 and the easterly half of Lot 14 to Whiley F. Johnson by deed dated May 7, 1914, and recorded with the Registry at Book 3908, Page 326 (the "May 1914 Deed"). The deed grants the following easement rights: "[s]aid premises are conveyed subject to a right of way twenty feet wide for the use of the owners and occupants of the Burrington property so-called, the same to be in continuation of the present right of way through the present holdings of said grantee." Plaintiff is the current owner of Lots 4 and the easterly half of Lot 14. [Note 13]

8. Cupples conveyed Lot 7 to Albert E. Thurston by deed dated June 22, 1914, and recorded with the Registry at Book 3898, Page 120 (the "June 1914 Deed"). This deed grants the following easement rights, "access to be had by means of a 20 foot right of way parallel with the back line, through land of Charles Woodman." Lawrence is the current owner of Lot 7, known as 211 Whiley Road, Groton, by deed dated July 9, 2004, and recorded with the Registry at Book 44236, Page 484. [Note 14] Lawrence leases Lot 7 to others.

9. The Cupples Right of Way runs east to west, crosses Lots 12 (owned by the Sangiolos), and Lots 13, 14, and 16 (owned by Plaintiff) as shown on the 1908 Plan, and has a width of twenty feet. The Cupples Right of Way does not connect to any public or private way.

10. Since the 1930s, access from Whiley Road has existed across Lawrence Parcel 2 and Lot 14 (the "Plaintiff Driveway"), Lot 3, and Lot 2 (the access across Lawrence Parcel 2, Lot 14, Lot 3, and Lot 2, collectively, the "West Driveway") providing access to Lots 1-3. Assessors Maps for 1938 and 1940 show roadways substantially in the location of the Plaintiff Driveway and Whiley Road. [Note 15]

11. Noyes has been visiting Plaintiff Property since the 1930s, traveling over the West Driveway, to access his family house on Lots 4 and 5.

12. Another access from Whiley Road to the Cupples Right of Way was created by Wellman Parker in the 1980s across Lawrence Parcel 1, land of Wellman Parker, and Lot 12 (the "East Driveway"), providing access to Lots 6-8. [Note 16] The East Driveway was rebuilt by the Sangiolos in 1994. The East Driveway is shown on the 1999 Assessors Map. [Note 17]

13. Gron lived at Lot 6 from August 1985 until January 31, 1989 (renting from Belcher until October 1986 and renting from Koffman from October 1986 to 1989).

14. In 2005, Lawrence entered the portion of the Cupples Right of Way on Lots 13, 14, and 16 and bulldozed a section of this right-of-way (including the removal of soil and the cutting of trees) to make a new driveway coincident with the Cupples Right of Way.

15. In 2005, the Sangiolos blocked access to the East Driveway across Lot 12.

16. The Sangiolos and Lawrence executed a Property Realignment and Access Agreement on July 16, 2007 (the "Realignment Agreement"), in which the parties agreed to swap portions of their respective properties in order to establish a new driveway for Lawrence to access Lot 7 from Whiley Road instead of using the East Driveway. The Sangiolos agreed to construct a gravel driveway on the portion of Lot 12 adjacent to Plaintiff Property and on Lawrence Parcel 1, and to possibly convey a utility easement for the benefit of all lots shown on the 1908 Plan and an access easement across such new driveway to Koffman and Sellars/Aubuchon. Lawrence agreed to release all interest in the East Driveway and the portion of the Cupples Right of Way which crosses the Sangiolo Property, and to deed to the Sangiolos the portion of Lawrence Parcel 1 which contains the East Driveway. [Note 18]

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Koffman has filed a Motion to Strike the Affidavit of Francis J. Noyes, Jr. (or at least paragraphs 8, 9, and 12) on the basis that it is not made upon personal knowledge. Paragraphs 8, 9, and 12 of the Noyes Affidavit relate to the historical use of the West Driveway by parties other than Noyes and appear to be in conflict with the Affidavits of Gron and Belcher. As a result, I will strike paragraphs 8, 9, and 12 from the summary judgment record. I will also strike the portions of the Gron and Belcher affidavits relative to the use of the West Driveway. [Note 19]

Plaintiff and the Sangiolos both seek a declaratory judgment with respect to the deeded rights of Plaintiff and Defendants in the Cupples Right of Way. Plaintiff also alleges that Lawrence committed trespass on Plaintiff Property. Koffman, Lawrence, and Sellers/Aubuchon allege that they have established an easement by deed, prescription, or necessity over the East Driveway, the West Driveway, and the Cupples Right of Way. I shall address each of these issues in turn.

1. Deeded Rights in the Cupples Right of Way.

A. Plaintiff Property

Plaintiff admits that certain parties have rights in the portion of the Cupples Right of Way which crosses Plaintiff Property. Specifically, Plaintiff acknowledges that, pursuant to the March 1910 Deed, the Parlees (with respect to Lot 1) and Lawrence (with respect to Lots 2 and 3) have deeded rights in the portion of the Cupples Right of Way which crosses Lot 13 (part of Plaintiff Property), and that, pursuant to the May 1914 Deed, the Parlees (with respect to Lot 1) and Lawrence (with respect to Lots 2 and 3) have deeded rights in the portion of the Cupples Right of Way which crosses Lot 14 (easterly one-half). [Note 20] As a result, I find that the Parlees (with respect to lot 1) and Lawrence (with respect to lots 2 and 3) have deeded rights to use the portion of the Cupples Right of Way that crosses Lot 13 and the easterly portion of Lot 14.

Plaintiff argues, however, that the portion of the Cupples Right of Way which crosses Plaintiff Property has been relocated to the West Driveway. He states that in order to access their respective properties from Whiley Road, the Parlees and Lawrence have used a right-of-way from Whiley Road separate from the Cupples Right of Way (i.e., the West Driveway). [Note 21] Plaintiff states that he has no issue with the rights of the Parlees and Lawrence to use the West Driveway in lieu of, but not in addition to, the Cupples Right of Way to access their properties. The Parlees are not a party to this action and Lawrence does not appear to have a dispute with the fact that a portion of the West Driveway crosses his property (Lots 2 and 3).

In 2005, Lawrence attempted to clear the portion of the Cupples Right of Way which crosses Lots 13, 14, and 16. [Note 22] Plaintiff argues that Lawrence has no legal right to relocate the West Driveway back to the Cupples Right of Way, citing Proulx v. D'Urso, 60 Mass. App. Ct. 701 (2004), and states that Lawrence, by his use of the West Driveway since his purchase of Lot 2 in 1971 and Lot 3 in 1979, for access to those lots, has acquiesced in the relocation of a portion of the Cupples Right of Way to the West Driveway. Proulx states that

the original easement may be deemed relocated when the conduct of the parties is such as to permit a conclusion that a different easement had been substituted for the way mentioned in the deeds because the evidence reflects a tacit understanding or an implied easement, manifested by the dominant owner's acquiescence in the use of the different easement in lieu of the original for a number of years.

Id. at 705 (quotations omitted).

Several months after Proulx was decided, the Supreme Judicial Court issued M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 90 (2004), which held that

unless expressly denied by the terms of an easement . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

M.P.M. Builders also held that "[i]n the absence of agreement between the owners of the dominant and servient estates concerning the relocation of an easement, the servient estate owner should seek a declaration from the court that the proposed changes meet the criteria in s. 4.8 (3) [of Restatement (Third) of Property (Servitudes)]." Id. at 93.

In the matter at hand, the record does not show that Lawrence acquiesced in the relocation of the easement, and Plaintiff does not provide evidence that the relocated easement meets the requirements of M.P.M. Builders. [Note 23] In the event that Lawrence refuses to execute a document relative to the agreement for the relocation of the driveway, it would be expedient for Plaintiff to seek a declaration from this court as to the applicability of M.P.M. Builders. An evidentiary hearing will be necessary in this regard. [Note 24]

B. The Sangiolo Property

The May 1911 Deed grants the owners of every lot shown on the 1908 Plan the right to use the portion of the Cupples Right of Way located on Lot 12 (part of the Sangiolo Property). [Note 25] The Sangiolos acknowledge that only the owners of Lot 7 (Lawrence) and Lot 8 (Sellars/Aubuchon) have such deeded right, but they ignore the explicit language in the May 1911 Deed ("there shall be a 20 ft. right of way through this land [Lot 12] for the use of occupants of other lots to the west of this land.") (emphasis added). As a result, I find that all lot owners on the 1908 Plan have deeded rights to use the portion of the Cupples Right of Way that crosses Lot 12 of the Sangiolo Property. [Note 26]

2. Easement by implication. [Note 27]

The Sangiolos argue that all lots shown on the 1908 Plan have the right to use the West Driveway by implication. [Note 28] Implied easements have been recognized when

land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part. The implied easement arises not so much from necessity alone as from the presumed intention of the parties . . . . That presumed intention is to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. [T]he presumption of intent in such cases is a presumption of law which ought to be and is construed with strictness.

Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 656-57 (2005) (quotations and citations omitted). The presumed intention of the parties has been qualified where an express easement in a deed "negat[es] . . . any intention to create easements by implication." Joyce v. Devaney, 322 Mass. 544 , 549 (1948). "A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Jackson v. Knott, 418 Mass. 704 , 711 (1994).

As the party asserting the implied easement, the Sangiolos have the burden of proof to show such easement. See Reagan v. Brissey, 446 Mass. 452 , 458 (2006). The Sangiolos' argument was premised on the fact that the West Driveway existed when Cupples deeded out the various lots on the 1908 Plan. The summary judgment record, however, does not show the existence of the West Driveway prior to the 1938 and 1940 Assessors' Maps, as confirmed by Noyes' affidavit. As a result, I do not find an easement by implication for the Sangiolos or any other lot owner in the West Driveway.

3. Easement by necessity.

Sellars/Aubuchon argued an easement by necessity over both the East Driveway and the West Driveway. An easement by necessity may arise "when a common grantor carves out what would otherwise be a landlocked parcel." Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005) (citing Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 76-77 (2004)). Typically, such easements "refer to rights-of-way presumed . . . when a landowner conveys a portion of his land but still needs access over the transferred property to reach the property he retained." Bedford, 62 Mass. App. Ct. at 77. [Note 29] An easement by necessity may be found if a court "can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one." Kitras, 64 Mass. App. Ct. at 291. To infer such intent, the record must demonstrate three factors: (1) a unity of title between the dominant and servient estates, (2) which is severed by conveyance, and (3) "necessity aris[es] from that severance, all considered 'with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect.'" Id. (citing Orpin v. Morrison, 230 Mass. 529 , 533 (1918)).

Relevant to the matter at hand, Sellars/Aubuchon was the only party to claim easement by necessity; however, they failed to file supporting affidavits detailing their position. Even so, the record clearly states that all parcels at issue were once held by a common grantor (Cupples), thus satisfying the unity of estate requirement. Furthermore, the record also indicates that Cupples' conveyances severed this common ownership. The questions remains, then, whether this court can infer necessity from the record with respect to the intent of Cupples and Lombard, the predecessors in title to Sellars/Aubuchon. The summary judgment record does not support such an argument. Moreover, there is no evidence that Cupples separated any lots from Whiley Road when he deeded the lots. [Note 30] As such, I find no easement by necessity benefitting Sellars/Aubuchon in either the East or West Driveway.

4. Prescriptive rights.

A party seeking to establish an easement by prescription must show continuous, uninterrupted, open, notorious, and adverse (but not exclusive) use of the servient estate for a period of not less than twenty years. See G. L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1947); Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898). "[T]he burden of proof on each and every element of the claim rests upon the party claiming an easement by prescription." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). See also Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). "[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under a claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Tucker, 321 Mass. at 324 (quoting Truc v. Field, 269 Mass. 524 , 528-529 (1930)).

A. The East Driveway, the Plaintiff Driveway, and the Cupples Right of Way

By counterclaims against Plaintiff and the Sangiolos, Koffman alleged that he had obtained prescriptive rights to use the Loop Driveway (being the East Driveway, the West Driveway and a portion of the Cupples Right of Way connecting the two driveways and crossing both Plaintiff Property and the Sangiolo Property). [Note 31] Koffman gave affidavit evidence that he and his predecessors and tenants have used both the East Driveway, the West Driveway, and the Cupples Right of Way since 1980 to the present time to access Lot 6 and have gained such rights by prescription. Depending on the location of the Loop Driveway, such claim may involve access across property of Lawrence and Sellars/Aubuchon as well as Plaintiff and the Sangiolos. Plaintiff claims that Koffman's predecessors' use did not commence until 1986, thereby preventing twenty years of continuous use. Since there is a dispute of a material fact, i.e. the continuous use of those ways for twenty years, an evidentiary hearing will be required to resolve the issue. It appears as though both Lawrence and Sellars/Aubuchon also claim a prescriptive easement to use either the East Driveway or the West Driveway, and a trial would be necessary on these claims as well. [Note 32]

B. Lawrence Parcel 1

The Sangiolos do not argue that they have obtained prescriptive easements in the portion of the East Driveway that crosses Lawrence Parcel 1. [Note 33] Moreover, the facts in the summary judgment record do not support such claim. The evidence shows that the Sangiolos rebuilt the East Driveway in 1994, when they purchased their property, but does not indicate when in the 1980s that Wellman Parker built the East Driveway, nor does the evidence show any use of Lawrence Parcel 1 in the 1980s before Koffman's use starting in 1989 other than the disputed affidavits of Gron and Belcher. [Note 34] As a result, I can not find that the Sangiolos have obtained a prescriptive easement in Lawrence Parcel 1. As discussed, supra, Koffman and Sellars/Aubuchon appear to claim prescriptive rights in Lawrence Parcel 1 as a part of the West Driveway, which will require a trial.

C. Lawrence Parcel 2

Plaintiff argues that he has established an easement by prescription over Lawrence Parcel 2. Plaintiff has given unopposed affidavit evidence that he has met all the requirements for prescriptive use over Lawrence Parcel 2; he has stated that he and his family have used the West Driveway as access to Plaintiff Property openly, notoriously, and adversely for a period in excess of twenty years. Lawrence has not given any evidence that Plaintiff does not meet such requirements. As a result, I find that Plaintiff has established prescriptive use over Lawrence Parcel 2. [Note 35]

5. Trespass.

Plaintiff argues that Lawrence's easement over the Cupples Right of Way does not give him the right to cut trees there. Plaintiff also argues that the portion of the Cupples Right of Way over Plaintiff Property has been relocated to the West Driveway. Thus, Plaintiff claims, Lawrence trespassed on Plaintiff Property by cutting trees and removing earth from the portion of the Cupples Right of Way located on Plaintiff Property and is therefore liable for damages. Plaintiff references G. L. c. 242, § 7, which states:

A person who without license wilfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

The record indicates that Lawrence acted "wilfully" in context of G. L. c. 242, § 7 when he bulldozed trees on a section of the Cupples Right of Way on Lots 13, 14, and 16. See Palmer v. Davidson, 211 Mass. 556 , 558 (1912) (stating that a defendant who "intentionally cut down these trees [does so] wilfully within the meaning of the statute"). However, the record is inadequate to allow this court to determine whether Lawrence was authorized to remove the trees on Lots 13, 14, and 16. Such a determination depends on this court's ultimate finding regarding the relocation of a portion of the Cupples Right of Way to the West Driveway and regarding whether Plaintiff gave permission for such cutting. [Note 36]

Furthermore, a determination of damages resulting from Lawrence's alleged trespass is inappropriate at this time given the lack of facts in the record in light of the various measures of damages that this court could order, depending on the value of the timber cut. See Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 304-07 (2008) (discussing the measure of damages for illegal tree clearing). Plaintiff supplies no evidence as to the value of such damages; Lawrence does not give any evidence in this regard, nor argue against damages.

The parties shall attend a status conference on December 23, 2008 at 10:00 A.M. to establish a date for an evidentiary hearing on issues raised in this Decision, i.e., prescriptive rights for Koffman, Lawrence, and Sellars/Aubuchon in the Loop Driveway, the location of the Loop Driveway, the relocation of Lawrence's rights in the Cupples Right of Way, and trespass issues involving Lawrence's cutting of trees in the Cupples Right of Way. Judgment shall enter at the resolution of all issues.

Alexander H. Sands, III

Justice

Dated: November 19, 2008