EVAN WILE, individually and as Trustee of West Street Realty Trust v. JOHN E. RATTIGAN, JR., Trustee of Edgewater House Trust, and JEFFREY E. HORVITZ, sole beneficiary of Edgewater House Trust

Introduction

Plaintiff Evan Wile, individually and as trustee of the West Street Realty Trust, brought this action to declare and enforce his easement rights over the land of defendants John Rattigan, Jr. (the trustee of the Edgewater House Trust) and Jeffrey Horvitz (the sole beneficiary of the Edgewater House Trust). [Note 1] Specifically, Mr. Wile contends that the gate Mr. Horvitz constructed across the right of way violates a previous judgment of this court [Note 2] and “constitute[s] an intentional and unprivileged interference with Wile’s easement rights and therefore constitute[s] a trespass against those rights.” Amended Complaint to Enjoin Defendants from Interfering with Plaintiff’s Use of His Easement at 8 (March 15, 2005). Additionally, Mr. Wile seeks “a judgment declaring that his easement across [a portion of the defendants’ property] is a uniform 20’ in width throughout, confirming the location of the easement and Wile’s right to improve the easement for its entire 20’ width, declaring that the gate unreasonably interferes with Wile’s easement rights, and providing permanent injunctive relief.” Id. at 9. Messrs. Rattigan and Horvitz contend that the gate does not unreasonably interfere with Mr. Wile’s use of the easement and further contend that the 1997 Decision determined the location and width of the easement, a portion of which (they contend) was determined to be less than twenty feet. Accordingly, Messrs. Rattigan and Horvitz invoke the doctrines of res judicata and judicial estoppel in response to Mr. Wile’s declaratory judgment count regarding the width and location of the easement. [Note 3]

Mr. Wile, Mr. Rattigan, and Mr. Horvitz have filed cross-motions for summary judgment. For the reasons set forth below, the parties’ cross-motions for summary judgment are ALLOWED in part and DENIED in part. Chief Justice Kilborn’s 1997 Decision determined the location of the right of way as depicted in Exhibit A to this memorandum and order. That right of way is twenty-feet wide for its entire length. [Note 4] Mr. Wile has the right to maintain and improve the right of way, consistent with its purpose as a way. Finally, the gate that Mr. Horvitz erected over the width of the right of way constitutes a material inconvenience to Mr. Wile’s right to use the way and must be removed within thirty days of the date of this memorandum and order.

Facts

Summary judgment is appropriately entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following facts are not in dispute.

Mr. Wile owns an undeveloped parcel of land located at 63 West Street in Beverly Farms. Edgewater House Trust (“Edgewater”) owns the adjacent property located at 65 West Street. Defendant John Rattigan is the trustee of Edgewater and defendant Jeffrey Horvitz is its sole beneficiary. Mr. Horvitz also resides in a home located on the Edgewater property. The parties in this case have been litigating numerous issues regarding these properties, both in this court and superior court. All of these cases, with the exception of the 1997 Decision, are not material to the issues presented by these motions.

In the 1997 Decision (see note 2, supra), this court determined that the property that Mr. Wile owns “benefits from an easement over the right of way (described in paragraph 12 and in exhibit 15) [Note 5] for all purposes of a way, not including the right to park vehicles.” 1997 Decision at 11-12; see also Judgment (Jan. 13, 1997) (“it is ORDERED and ADJUDGED that [Wile’s] property, parcel 2 as described in paragraph 5 of the decision, has a non-exclusive easement for all purposes of a way, not including the right to park vehicles, over the area (on parcels 1 and 3, as identified in paragraphs 4 and 6 of the decision) identified as “right of way in paragraph 12a) of the decision; and it is further ORDERED and ADJUDGED that [Mr. Rattigan, Trustee of the Edgewater House Trust] and his successors and assigns as owners of said parcels 1 and 2, and those claiming by, through, or under any of them, are hereby ordered not to interfere with the exercise of the easement described in the preceding paragraph”). As described in paragraph 12 of the 1997 Decision, “[t]he right of way consisted of: 1) the 12’± strip forming the east-west portion of parcel 3 (along the southerly boundary of the area shown as ‘Rear of Lot No. 1’ on the 1950 plan); 2) the area on parcel 1 marked ‘Avenue’ on the 1950 plan; and 3) a 20’ east-west connector leading to the ‘Avenue’ from the 12’± strip and from the 8’ right of way on parcel 2 shown on the 1950 plan.” 1997 Decision at 4. The 1997 Decision also attached the 1950 plan, which Chief Justice Kilborn marked to depict “the entire right of way” on it. Id. A copy of that plan is attached to this memorandum as Exhibit A (Mr. Wile’s property is identified as Parcel 2 on that plan; the Edgewater property is identified as Parcels 1 and 3).

In July 2003, Mr. Horvitz constructed a twenty-foot-wide gate across a portion of the right of way. The gate consists of two, ten-foot-wide panels and is located approximately at the intersection of the twenty-foot-wide right of way and the “Avenue.” It is in a location where Mr. Horvitz can still access his house without ever passing through the gate. The gate is kept closed by two metal latch bars, which have to be raised or lowered by hand. The bars are located on the “Horvitz side” of the gate and are accessible from the “Wile side” when someone reaches between the gap in the gate panels. If someone is passing through the gate in a vehicle, he or she must stop, get out of the vehicle, open the gate, and then drive through. Furthermore, as a result of contempt proceedings in superior court, Mr. Wile and his guests were put “on notice that [not closing the gate when they leave the Wile property] does cause substantial annoyance to Mr. Horvitz as it would to any reasonable person, and that it does seem that there’s simply no excuse once all the visitors of Mr. Wile’s property have left, not to close the gate behind them.” Findings of Fact & Rulings of Law, Super. Ct. Case No. 2001-302 (April 9, 2004) (Welch, J.), attached as Exhibit L of the Statement of Defendants John E. Rattigan, Jr., Trustee of Edgewater Trust, and Jeffrey E. Horvitz Regarding their Motion for Summary Judgment Pursuant to Land Court Rule 4 (hereafter “Defendants’ Rule 4 Statement”). During winter months, snow that accumulates above the clearing of the gate must be removed on both sides in order to open and close the gate.

Other material facts are included in the analysis section below.

Analysis

The Location and Width of the Right of Way

As stated above, former Chief Justice Kilborn (now retired) determined that Mr. Wile has an easement over the Edgewater property. In that 1997 Decision, Chief Justice Kilborn stated that, in a deed conveying Parcel 2 to Dennis Fabry, the deed included “[t]he right of way [that] consisted of: 1) the 12’± strip forming the east-west portion of parcel 3 (along the southerly boundary of the area shown as ‘Rear of Lot No. 1’ on the 1950 plan); 2) the area on parcel 1 marked ‘Avenue’ on the 1950 plan; and 3) a 20’ east-west connector leading to the ‘Avenue’ from the 12’± strip and from the 8’ right of way on parcel 2 shown on the 1950 plan.” 1997 Decision at 4. As part of his decision, Chief Justice Kilborn included the 1950 plan, which he marked to identify the right of way and the three parcels.

Messrs. Rattigan and Horvitz contend that in Miscellaneous Case Number 185358, Mr. Wile requested the court to determine that he has a right of way over the Edgewater property and that the 1997 Decision did just that. As a result, Messrs. Rattigan and Horvitz argue that the 1997 Decision controls and this court cannot expand the width of the easement over the “Avenue” to twenty feet. [Note 6] In the alternative, they argue that principles of deed interpretation would lead to the same conclusion since any reference to the “Avenue” being twenty-feet wide is superceded by the width as depicted on the 1950 plan. Mr. Wile, on the other hand, argues that the 1997 Decision did confirm his easement rights, but did not determine the location or width of the easement. Mr. Wile contends that the width and location of the easement were not at issue in the previous case. [Note 7] Such a contention is wrong.

Contrary to Mr. Wile’s argument, the 1997 Decision clearly states both parties’ positions, which include a declaration regarding the easement: “[Rattigan] seeks a declaration that [Wile] does not have an easement over [Rattigan]’s property (parcels 1 and 3) in Beverly. [Wile] seeks a ruling that his property (parcel 2) enjoys an easement over parcels 1 and 3 . . . .” Id. at 1. Determining the width and location of the easement would obviously be part of determining whether Mr. Wile had an easement over parcels 1 and 3 and the scope of such easement. Also contrary to Mr. Wile’s argument, the 1997 Decision clearly located the right of way. It also clearly identified the width of two segments of the right of way: a “12’± strip forming the east-west portion of parcel 3” and “a 20’ east-west connector leading to the ‘Avenue’ from the 12’± strip and from the 8’ right of way on parcel 2 shown on the 1950 plan.” Id.

The text of the 1997 Decision did not specifically set forth the width of the area marked “Avenue.” It did, however, specifically state that the right of way was “described in paragraph 12 and in exhibit 15,” the deed from Susan Lee Fabry to Dennis Fabry, Trustee of T.I. Realty Trust (Sept. 25, 1985), recorded at the Essex (South) Registry of Deeds in Book 8264, Page 264 (hereinafter, the “1985 Deed”). The 1997 Decision itself also specifically referred to the 1985 Deed within its description of the right of way (in paragraph 12). That deed clearly identifies the width of the way over the Avenue: “the right to use for a way, the 20’ area on Lot A shown on Plan recorded in Plan Book 3787, Page 81 designated as ‘Avenue’ to West Street.” [Note 8], [Note 9] (emphasis added). The Appeals Court, in affirming the 1997 Decision, stated that “the grants of the right of way on September 25, 1985, and again on October 14, 1987, both show the intent to create a uniform twenty-foot wide ‘connector’ across lots 2 and 3 that joins up with the approximate twenty-foot wide ‘Avenue’ running across lot 1 to the public way.” Rattigan v. Wile, Memorandum and Order Pursuant to Rule 1:28, 97-P-992 at 4 (Dec. 15, 1998).

While Messrs. Rattigan and Horvitz correctly argue that monuments control over land described by courses and distances if there is a discrepancy, such doctrine does not apply to this case. Messrs. Rattigan and Horvitz rely upon the 1950 plan to argue that the depiction of the “Avenue,” which seemingly narrows on the plan, must govern over the later deed language describing the right of way as twenty feet. However, the 1950 plan was created prior to the deed in which the easement arose and the plan therefore does not purport to depict the extent of the easement. More importantly, the 1950 plan itself contains no obvious monuments (such as concrete bounds) and shows obvious inconsistencies. The plan purports to have a scale of one inch equaling forty feet; however, the actual scale bar on the plan shows one inch equaling more than forty feet. Furthermore, there are two “20 Ft. Right of Way[s]” shown on the plan, one running along the left side of “Lot No. 1” and one running along the top of the lots. See Ex. A. Despite both being described as twenty-feet wide, the two ways clearly have different widths on the plan itself. These discrepancies indicate that the plan was not intended to accurately depict the width of the right of way easements, simply their location.

In addition, the deed that creates the easement clearly states that the right of way is twenty-feet wide, an obvious indication that it was the parties’ intent for the easement to be twenty-feet wide. While it refers to the 1950 plan, as stated above, that plan is, at best, ambiguous as to the width of the right of way and the reference to the plan is simply to show its location. [Note 10] The deed creating the easement and containing the unambiguous width of the easement therefore controls.

Considering Chief Justice Kilborn’s decision (which specifically states that the right of way exists as described in the 1985 Deed (Ex. 15 in the 1997 Decision)), the deeds upon which that decision was based, and the Appeals Court’s 1:28 Memorandum and Order, it is clear that the entire length of the right of way is twenty-feet wide. [Note 11] Accordingly, the 1997 Decision describing the right of way is hereby clarified to reflect the language in the 1985 Deed that the segment of the right of way identified as Avenue is twenty-feet wide.

Mr. Wile requests that this court, after confirming the location of the easement, declare that he has the right to improve the entire length of the twenty-foot-wide easement. As with all easements, “every right necessary for its enjoyment is included by implication.” Commercial Wharf E. Condominium Assoc. v. Waterfront Parking Corp., 407 Mass. 123 , 138 (1990) (citing Sullivan v. Donohoe, 287, Mass. 265, 267 (1934)). An easement for a right of way “consists in a right to use the surface of the soil, for the purpose of passing and repassing, and the incidental right of properly fitting the surface for that use . . . .” Atkins v. Bordman, 2 Met. 43 Mass. 457, 467 (1841). Therefore, Mr. Wile may “make reasonable repairs and improvements” to the right of way. Estes v. Demello, 61 Mass. App. Ct. 638 , 642 (2004) (quoting Hodgkins v. Bianchini, 323 Mass. 169 , 173 (1948)) (“the right to use a private way ordinarily ‘includes the right to make reasonable repairs and improvements’”).

The Gate across the Right of Way

The remaining issue in this case is whether the defendants’ construction of a gate across the right of way constitutes an interference with the plaintiff’s easement. In deciding this question, numerous cases have stated that it “depends on the circumstances.” Merry v. Priest, 276 Mass. 592 , 599 (1931); see also, e.g., Yagjian v. O’Brien, 19 Mass. App. Ct. 733 , 735 (1985); Stucchi v. Colonna, 9 Mass. App. Ct. 851 , 851 (1980). It is an issue that “involves considerations of fact as well as a question of law.” Blais v. Clare, 207 Mass. 67 , 69 (1910). As in all easement cases, both servient and dominant estate owners have rights to use the easement land. The servient estate owner can use his or her land in any manner, so long as it is “consistent with the easement of another.” Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711 , 714 (1951). “[B]ut the corollary of that rule is that he may not use his land in a manner inconsistent with the easement.” Id. at 715; see also Patterson v. Paul, 448 Mass. 658 , 666 (2007); Commercial Wharf, 407 Mass. at 134; Texon, Inc. v. Holyoke Machine Co., 8 Mass. App. Ct. 363 , 365-66 (1979). The dominant estate owner “has a right to enter the servient land . . . to perform such acts as are reasonably necessary for such use and enjoyment.” Highland Club of W. Roxbury, 327 Mass. at 714 (citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 292 Mass. 332 , 336 (1933)). This “right of use arising out of its easement is superior to the [servient estate owner’s] property interest, and the [servient estate] must avoid activities which are inconsistent with the [dominant estate’s] use of the easement.” Texon, Inc., 8 Mass. App. Ct. at 366. As a result, “[t]he 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 easement holder’s exercise of his rights. An interference with an easement holder’s use of the land amounts to an infringement of a valuable property interest.” Id.

For the specific question of whether constructing a gate across the right of way is an unreasonable interference with the dominant estate owner’s easement rights, courts apply a balancing test. Stucchi, 9 Mass. App. Ct. at 852 (citing Blais v. Clare, 207 Mass. 67 (1910)) (courts must “focus[] on balancing the benefits and conveniences to the respective parties”). “The cases on this subject have tended to weigh slight inconvenience to the dominant owner’s use of the way against the servient owner’s freedom to use his property in a reasonable manner for his own benefit and convenience and to strike and equitable balance. The question is whether the interference is so slight as to be reasonable in all the circumstances.” Yagjian, 19 Mass. App. Ct. at 735; see also Stucchi, 9 Mass. App. Ct. at 851 (quoting Western mass. Elec. Co. v. Sambo’s of Mass. Inc., 8 Mass. App. Ct. 815 , 818 (1979)) (“Thus, as we have most recently said, ‘in determining whether the defendant owner of the servient estate could place a gate over a right of way held by the plaintiff, . . . the question is [w]hat is reasonable in the use of the property of the respective parties. The plaintiff has a right to use the way in a reasonable manner, having regard to the correlative right of the defendant to use her property in a reasonable way, in reference not only to her own benefit and convenience, but also to the benefit and convenience of the plaintiff.’”).

In this case, Mr. Horvitz contends that he constructed the “[g]ate in order to shield his property from activities undertaken by Mr. Wile on the Wile Property.” Defendants’ Rule 4 Statement at 6, ¶ 31 (filed April 20, 2006). In addition, Mr. Horvitz claims he constructed the gate to minimize dust and gravel and to discourage trespassers from going on to Mr. Wile’s vacant property when Mr. Wile is not there. Mr. Horvitz expressed concern that trespassers to Mr. Wile’s property would later stray on to his property. He believed that the presence of a gate would deter people from trespassing.

On the other hand, the gate clearly increases the inconvenience to Mr. Wile and his guests as they enter and exit the Wile property since it forces them to get out of their vehicles, unlatch and open the gate, drive through, and then close the gate behind them when they leave the property. This inconvenience only impacts Mr. Wile and his guests – Mr. Horvitz and his guests can access the Edgewater property without ever having to pass through the gate. The benefits to Mr. Horvitz also are minimal. His concern regarding trespassers is undermined by the fact that his property can be accessed freely without going through the gate. The ability of the gate to reduce gravel also appears to be negligible given the fact that the gate is latticed and raised off of the ground by approximately thirty inches. See Aff. of Sander A. Rikleen, Ex. E (diagram of the gate); Defendants’ Rule 4 Statement, Ex. G (photograph of the gate). Finally, as I observed on the view and in photographic evidence, the ability of the latticed gate to screen activities occurring on Mr. Wile’s property is minimal. Indeed, one can see straight through, over, and under the gate. Defendants’ Rule 4 Statement, Ex. G.

It also should be noted that the gate was constructed in 2003. Prior to that time, Mr. Wile had an unobstructed easement to his property. Although the Supreme Judicial Court noted “that the actual condition of the way, at the time of the reservation, is not the measure and definition of the plaintiff’s right,” it also warned that “we do not mean to say, that such state of the passage way may not be evidence, and often evidence of a very forcible and determinate character, to prove what is reasonable and convenient, and what those most conversant with the matter have, by their practice, shown to be in their opinion most reasonable and convenient, under given circumstances.” Atkins, 2 Metcalf (43 Mass.) at 472. The language of the easement in the 1985 Deed explicitly states that Parcel 2 has “the right to use[,] for all purposes of a way,” the right of way in this case. Prior to 2003 and, more importantly, at the time the easement was granted, the right of way was free of any obstructions, suggesting that the parties contemplated the dominant estate owners to have reasonable, convenient, and unobstructed access to their property.

Based on this balancing, I find and rule that the interference and inconvenience from the gate is not reasonable under these circumstances. Dickinson v. Whiting, 141 Mass. 414 , 417 (1886); Dastous v. Nicosia, 2000 WL 559546, at *3 (Mass. Super. April 3, 2000). [Note 12] Since Mr. Wile’s right to use the easement is superior to Mr. Horvitz’s property interest and since the gate interferes with that right, the defendants are hereby ORDERED to remove the gate.

Conclusion

For the foregoing reasons, the parties’ cross-motions for summary judgment are ALLOWED in part and DENIED in part. Chief Justice Kilborn’s 1997 Decision determined the location of the right of way as depicted in Exhibit A to this memorandum and order. That right of way is twenty-feet wide for its entire length. [Note 13] Mr. Wile has the right to maintain and improve the right of way, consistent with its purpose as a way. Finally, the gate that Mr. Horvitz erected over the width of the right of way constitutes a material inconvenience to Mr. Wile’s right to use the way. Accordingly, within thirty days of the date of this memorandum and order, Mr. Horvitz is hereby ORDERED to remove the gate. Judgment shall enter accordingly.

SO ORDERED.

By the court (Long, J.)