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

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, Jr. (the trustee of the Edgewater House Trust) and Jeffrey Horvitz (the sole beneficiary of the Edgewater House Trust). Specifically, Mr. Wile contended that the gate Mr. Horvitz constructed across the right of way violated a previous judgment of this court [Note 1] and “constitute[d] an intentional and unprivileged interference with Wile’s easement rights and therefore constitute[d] 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 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. Mr. and Mrs. Horvitz contended that the gate does not unreasonably interfere with Mr. Wile’s use of the easement and further contended that the 1997 Decision determined the location and width of the easement, a portion of which (they contended) was determined to be less than twenty feet. Accordingly, Mr. and Mrs. Horvitz invoked 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.

Mr. Wile and the Horvitzes filed cross-motions for summary judgment. For the reasons set forth in the court’s Memorandum and Order on the Parties’ Cross-Motions for Summary Judgment dated November 26, 2008, the parties’ cross-motions for summary judgment were 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 the memorandum and order. That right of way is twenty-feet wide for its entire length. For the reasons set forth in this court’s Memorandum and order on Plaintiff’s Motion for Clarification of this date, the “Avenue” section of the easement is located as shown on the Plan of 20’ Right of Way at West Street (Jan. 5, 2009), attached to the Affidavit of David J. Crispin (Jan. 16, 2009). 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 Judgment.

SO ORDERED.

By the court (Long, J.)