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

MISC 304412

March 3, 2009

ESSEX, ss.

Long, J.


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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 Carol Horvitz (the trustee of the Edgewater House Trust) [Note 1] and Jeffrey Horvitz (the sole beneficiary of the Edgewater House Trust) (hereafter collectively referenced as “Mr. Horvitz”). Specifically, Mr. Wile contended that the gate Mr. Horvitz constructed across the right of way violated a previous judgment of this court, [Note 2] “constituted an intentional and unprivileged interference with Wile’s easement rights[,] and therefore constituted 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 sought “a judgment declaring that his easement across [a portion of Mr. Horvitz’ 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.

Judgment entered on November 26, 2008. Mr. Horvitz timely filed a notice of appeal and, in addition, post-judgment motions for clarification and a stay of the judgment pending the outcome of appeal. During oral argument of those motions, Mr. Wile raised an issue regarding the judgment. The judgment declared the easement’s general location (by reference to the 1950 plan attached to both the 1997 Decision and its judgment), [Note 3] its width (sufficient to make the right of way twenty-feet wide for its entire length), Mr. Wile’s right of maintenance and improvement of the easement consistent with its purpose as a way, and his right to have the gate removed from the easement. What it did not do was attach an updated survey plan showing the precise location of the easement on the ground, creating the following (unintended) issue. The initial section of the way (occupied in part by “the Avenue” as shown on the 1950 plan) begins on West Street and curves around Lot B. “The Avenue” is an existing paved driveway of varying width, from 11.45 feet at its narrowest to 17.22 feet at its widest. Aff. of David J. Crispin (Jan. 16, 2009), attaching “Plan of 20’ Right of Way” (Jan. 5, 2009) (the “Crispin Aff. and plan”). The easement itself is twenty-feet wide in this section. Memorandum and Order on the Parties’ Cross Motions for Summary Judgment at 7-8 (Nov. 26, 2008) (referencing the 1997 Decision and the 1985 Deed describing the easement). If the twenty-foot width of the easement is measured from the center of the pavement, the easement’s outer edge would encroach onto Lot B, which is not subject to the easement. Moreover, although the annotated version of the 1950 plan attached to the 1997 Decision locates the easement entirely on the burdened land, the new survey reveals that for approximately forty-five feet, between one and five feet of the pavement’s width encroaches onto Lot B. Since this cannot be so, a clarification of the judgment was thus appropriate, showing the twenty-foot width entirely on the burdened land.

Mr. Wile subsequently submitted a survey plan reflecting what he contended was the location of the easement as intended — twenty-feet centered on the middle of the pavement where possible (i.e., where the twenty feet would be entirely on the burdened land) and twenty feet measured from the edge of the Lot B property line elsewhere. Crispin Aff. and plan. Mr. Horvitz was given the opportunity to submit his own arguments and plan, showing the location of the twenty-foot wide easement in any alternate place he believed more accurately reflected the grant. He declined to do so (thus waiving that opportunity), arguing only that clarifying the judgment in this fashion was both untimely and improper. I disagree.

First, Mr. Wile’s motion is not governed by Mass. R. Civ. P. 59(e) (motions to alter or amend a judgment) with its ten-day-time limitation. He did not wish an alteration or amendment of the judgment, just its clarification — a clarification that did not become apparent until the surveyor attempted to locate the easement on the ground. Second, to the extent authority is necessary for such a clarification, it is provided by Mass. R. Civ. P. 60. That rule gives the court authority to correct “errors . . . arising from oversight or omission . . . at any time of its initiative or on the motion of any party” so long as the correction is made before the appeal is docketed in the appellate court.” Mass. R. Civ. P. 60(a). The clarification sought is in the nature of an “omission” (the omission of a survey plan showing the easement declared in the judgment) and the appeal has not yet been docketed.

Having reviewed the Crispin Affidavit and plan, I find and rule that the plan accurately depicts the location of “the Avenue” part of the easement as declared in the November 26, 2008 judgment. [Note 4] An amended judgment shall issue accordingly. [Note 5]


By the court (Long, J.)


[Note 1] At the time the case was filed, John Rattigan, Jr. was the trustee. Ms. Horvitz was appointed successor trustee on May 31, 2007.

[Note 2] The previous decision and judgment were in Rattigan v. Wile, Land Ct. Misc. Case No. 185358 (Jan. 13, 1997) (Kilborn, C.J.) (hereinafter, the “1997 Decision”).

[Note 3] Plan of Land Belonging to Herbert J. Kaiser (Jul. 14, 1950). An annotated copy is attached to the Memorandum and Order on the Parties’ Cross Motions for Summary Judgment (Nov. 26, 2008) as Exhibit A.

[Note 4] Mr. Horvitz’s motion to strike that affidavit on the ground that it was untimely and does not reflect Mr. Crispin’s independent opinions, but rather the instructions of counsel (twenty-feet centered on the middle of the pavement where possible (i.e., where the twenty feet would be entirely on the burdened land) and twenty feet measured from the edge of the Lot B property line elsewhere) is DENIED. Those instructions were correct (that is, in fact, where the easement is located) and I find and rule that the plan accurately carried out those instructions. It was timely because it assisted the court in clarifying an omission from its previous judgment and came before the appeal was docketed in the Appeals Court. Mass. R. Civ. P. 60(a).

[Note 5] Mr. Wile’s motion to correct footnote 2 of the court’s Memorandum and Order on the Defendants’ Motion to Stay Judgment (Jan. 6, 2009) is ALLOWED. The statement in that footnote that “neither [the gate’s] posts, nor any part of the opened gate, are within the boundaries of the easement” was based on the erroneous (and since corrected) representation of Mr. Horvitz’s counsel that the gate was not in the easement area. As Mr. Horvitz now concedes, it was. Thus, if it has not yet been removed, it should promptly be removed.