FRANCIS W. REYNOLDS, KERRY A. REYNOLDS, PAUL J. GUINEY, and LAURA D. GUINEY v. ALICE E. BAKER

On January 5, 2004, Francis and Kerry Reynolds and Paul and Laura Guiney (Plaintiffs) initiated this action by filing a complaint against their abutter, Alice Baker (Defendant), asserting Plaintiffs’ access rights in and to a driveway located on Defendant’s registered land. Plaintiffs assert that Defendant is interfering with their rights, which were established by deed, by impeding access to the driveway, and seek a permanent injunction against such interference.

On February 6, 2004, this court held a hearing on Plaintiffs’ Motion for Preliminary Injunction, at which all parties were heard, and allowed Plaintiffs’ motion upon the delivery of a $1,000 bond. Defendant subsequently filed a motion to dismiss, which was heard and denied on September 1, 2004. Shortly thereafter, Defendant filed her Answer, which set forth a three-count counterclaim alleging trespass and nuisance, and also sought deed reformation, to change the easement language through which Plaintiffs claim their rights to use Defendant’s land. Plaintiffs subsequently moved for summary judgment on the complaint and counterclaim, which was denied.

A two-day trial was held on November 27, 2007, and January 17, 2008. At trial this court heard the testimony of Plaintiff Francis W. Reynolds; Alan Clapp, a civil engineer with Vanasse Hangen Brustlin; Henry Sousa, the attorney who prepared relevant deeds on behalf of Defendant; John F. Vance, Jr., a surveyor who prepared plans on behalf of Defendant; Defendant Alice Baker; and Kathleen Baker, the wife of Defendant’s nephew. Thirty-two exhibits were entered in evidence. Following trial, this court took a view of the parties’ properties in the presence of counsel and the parties. Both parties submitted post-trial briefs on June 2, 2008. A Decision Sketch is attached hereto showing the parties’ properties and various defined terms referenced in the decision. Based on all the evidence and reasonable inferences drawn therefrom, and observations from the view, this court finds the following material facts:

1. By deed registered December 6, 1982, Defendant and her husband Howard Baker (Bakers) acquired by deed a parcel of registered land off Leonard Street in Norton (Defendant’s Property), shown as Lots 2, 3, and 4, on a plan drawn by Hayward, Boynton & Williams, Inc., Surveyors, dated January 16, 1976, and modified and approved by the court and numbered 39187A (Land Court Plan 39187A).

2. During the 1990’s, before Plaintiffs purchased their respective lots from the Bakers, the Bakers requested that John F. Vance, a surveyor/engineer, prepare a plan for the subdivision of Defendant’s Property that would create Lots 7 and 8, comply with the Town of Norton zoning requirements, and allow for future development of acreage that is adjacent to where Defendant’s house is located on her property (Defendant’s Remaining Land).

3. On April 24, 1997, the Bakers filed for approval with the Land Court a plan prepared by Vance entitled “Land Court Plan of Land in Norton, Massachusetts Being a Subdivision of Lot 4 Shown on Land Court Plan 39187C Owned by: Howard B. and Alice E. Baker dated February 2, 1997” (Vance Plan). The Vance Plan showed Defendant’s Property with 104.26 feet of frontage along Leonard Street, which almost immediately narrows to a width of 52 feet running between Lots 1 and 6 on the Vance Plan, owned by people not parties to this action. This portion of the right of way shown on the Vance Plan is sometime referred to herein as “52-foot Wide Right of Way.”

4. Defendant’s driveway is located along the southerly portion of the 52-foot Wide Right of Way, adjacent to Lot 1. Approximately 170 feet from Leonard Street, the 52-Foot Right of Way begins to narrow, becoming a 25-foot right of way, running along the boundary between Defendant’s Property and Lots 7 and 8, now owned by the Guineys and Reynolds, respectively. The 25-foot wide area is sometimes referred to herein as “25-foot Wide Right of Way.” [Note 1]

5. By deed registered July 1, 1997, the Bakers sold both lots 7 and 8. Plaintiffs Francis W. and Kerry A. Reynolds purchased Lot 8, as shown on the Vance Plan.

6. Lot 7 was sold by the Bakers to Patrick F. and Anna G. Walsh, who resold it to Plaintiffs Paul J. and Laura D. Guiney (then known as Laura D. Turcotte), on September 26, 2002. [Note 2]

7. The deeds to Lots 7 and 8 recite that they are conveyed together with the benefit of a 25-foot “LIMITED EASEMENT . . . to establish a driveway” over Defendant’s Property (Driveway Easement). The Lots are also conveyed with the benefit of a utility easement. Although the deeds expressly locate the utility easement along the northerly boundary line of Defendant’s Property, the exact location of the Driveway Easement was not expressly established in Plaintiffs’ deeds. [Note 3]

8. The easements granted to the Reynolds and Guineys (Easement Grant) reads as follows: Together with a LIMITED EASEMENT in common with others legally entitled hereto to establish a driveway over the remaining land of Howard B. & Alice E. Baker in that twenty-five (25’) foot area shown and designated as “Easement Within Lot 4” on [the Vance Plan] . . . said EASEMENT being expressly limited to use for vehicular and pedestrian ingress and egress to and from such single family residential dwelling as may be constructed on said [Lot #7 and] Lot #8 hereinabove described, it being understood and agreed that the Grantee herein may at their sole cost and expense also install telephone, electric and cable television lines on utility poles to be located along the Northerly boundary line of the Grantors’ land abutting Lots 6, 7 & 8 as shown on the plan hereinabove referenced. [Note 4]

9. Henry Sousa, the attorney who drafted the Easement Grant, testified that he did not draft the language to indicate a specific location for passage within the easement area depicted on [the Vance Plan], which shows the 52-foot Wide Right of Way. He also acknowledged that the Vance Plan does not show a specific location for passage within the 52-foot Wide Right of Way. [Note 5]

10. While Plaintiffs were constructing their houses, they and their construction crews reached Lots 7 and 8 by passing from Leonard Street over Defendant’s driveway, located along the southerly portion of the 52-foot Wide Right of Way, and over the 25-foot Wide Right of Way shown on the Vance Plan. Since 1997, Plaintiffs and their predecessors-in-title have been using Defendant’s driveway to access Lots 7 and 8 on a daily basis, as have their invitees and all others who needed to reach Plaintiffs’ homes.

11. On or about January 30, 2002, Defendant sent a letter to Plaintiffs informing them that she intended to divide Defendant’s Remaining Land, and she no longer wanted Plaintiffs to use her driveway as access to Lots 7 and 8. Shortly thereafter, Defendant blocked Plaintiffs’ access to this portion of the 52-foot Wide Right of Way, by placing caution tape over its entrance. When Plaintiffs removed the caution tape, Defendant blocked the access with sawhorses, poles with concrete footing, and finally boulders and highway barrels.

* * * * * *

In the instant case, Plaintiffs seek a determination that by virtue of the Easement Grant and their subsequent actions since 1997, they have easement rights along the southerly portion of the 52-foot Wide Right of Way, over Defendant’s driveway. Plaintiffs argue that the Driveway Easement, when granted, did not establish the location of Plaintiffs’ common easements but rather, expressly contemplated that the easement location would be established by them. Specifically, the Easement Grant conveyed to Plaintiffs the right “in common with others legally entitled hereto to establish a driveway over [Defendant’s Remaining Land]. . . (emphasis added.)” Plaintiffs claim, and this court finds, that Plaintiffs, through their own actions and, in the case of the Guineys, through the actions of their predecessors-in-title, did establish the location of the Driveway Easement soon after they purchased their respective lots in 1997, as was their right under the Easement Grant.

By plan dated January 6, 2002, Defendant requested that the Land Court assign a lot number (Lot 10) to Defendant’s Remaining Land. The plan submitted to the court was prepared by Mr. Vance and is entitled “Land Court Plan of Land in Norton, Massachusetts Being the Remaining Land in Lot 4 Shown on Land Court Plan 39187D Owned by: Alice E. Baker” (2002 Vance Plan). The 2002 Vance Plan showed the Driveway Easement located along the northerly boundary of the 52-foot Wide Right of Way, consistent with Defendant’s position in this action. The Land Court survey division has not yet issued a subdivision plan based on the 2002 Vance Plan. In view of the instant litigation, the issuance of that subdivision plan (which would issue, if at all, as Land Court Plan No. 39187E), depends in part on the outcome of this action. By the time the 2002 Vance Plan was proffered by the Bakers, the location of the Driveway Easement had already been set along the southerly boundary of the 52-foot Wide Right of Way by Plaintiffs’ use and conduct. [Note 6]

Defendant maintains that Plaintiffs’ Driveway Easement should be located along the northerly portion of the 52-foot Wide Right of Way, leaving Defendant’s driveway, located along the southerly portion, a private driveway for her exclusive use. Such a location would put the two driveways side by side, within the 52-foot Wide Right of Way. Defendant seeks reformation of the Driveway Easement to reflect Defendant’s desire regarding the location of the Driveway Easement.

Defendant further maintains that even if the Driveway Easement is located where Plaintiffs claim it is, as the servient estate owner, Defendant is free to move its location. This court finds that Defendant is not entitled to the relief she seeks for two reasons. First, Plaintiffs have established the location of the Driveway Easement through their use of Defendant’s driveway along the southerly boundary of the 52-foot Wide Right of Way. Second, while Defendant may have the right to relocate Plaintiffs’ easements, she may only do so, if at all, in accordance with the parameters set by the Supreme Judicial Court in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004). She has failed to present a case supporting her entitlement to relocate the easement under the M.P.M. Builders case at this time.

Plaintiffs’ Claims

At all times, Defendant has agreed that Plaintiffs have the benefit of access easements over Defendant’s Property, to reach Leonard Street, through the Easement Grant. The point of disagreement among the parties relates to the location of the common easement within the 52-foot Wide Right of Way. This court finds that the location of the easement was undefined, except that it had to be located within both the area depicted as “Easement within Lot 4,” which is the 25-foot Wide Right of Way and within the 52-foot Wide Right of Way shown on the Vance Plan. Although Defendant maintains that the Easement Grant located the Driveway Easement along the northerly boundary of the 52-foot Wide Right of Way, this court disagrees. The Easement does not contain any specific language locating the Driveway Easement where it runs through the 52-foot Wide Right of Way, but does contain specific language establishing the utility easement along the northerly boundary of the right-of- way.

Where “an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate [Plaintiffs] acquiesced in by the owner of the servient estate [Defendant], will be deemed to be that which was intended to be conveyed by the deed.” Labounty v. Vickers, 352 Mass. 337 , 345 (1967) (quoting Kessler v. Bowditch, 223 Mass. 265 , 268 (1916)). Here, the Easement Grant first appeared in 1997 (in the deeds to the Reynolds and the Walshes) and the language indicates that at the time of the grant, the exact location of the Driveway Easement was not established within the 52-foot Wide Right of Way. Before receiving Defendant’s cease and desist letter, Plaintiffs had been using the southerly portion of the 52-foot Wide Right of Way for approximately five years for both vehicular and pedestrian access on a daily basis, with Defendant’s acquiescence. Therefore, this court finds that Plaintiffs established the location of the Driveway Easement along the southerly portion of the 52-foot Wide Right of Way, where Defendant’s driveway is located.

Indeed, the language creating the Driveway Easement gives to the grantees the right to establish a driveway, by conveying the lots “[t]ogether with a LIMITED EASEMENT in common with others legally entitled hereto to establish a driveway . . .” Although the language does not expressly state that it is the grantees who have the right to establish the location of the Driveway Easement, this court finds that the language of the Easement Grant on this score is not ambiguous. Had the Bakers desired either to locate the Driveway Easement or reserve to themselves the right to establish it, they could have done so. The fact that they were specific in locating the utility easement is further indication that the Bakers knew how to be specific when they wanted to do so. “To the extent that the language used and its sequencing may be seen as ambiguous on this point, we would construe it "strongly against the party who drew it." Leblanc v. Friedman, 438 Mass. 592 , 599 n. 6 (2003) (quoting Bowser v. Chalifour, 334 Mass. 348 , 352, 135 (1956)). As the drafting party, Defendant bears any risk of ambiguous language.

While this court has found that the language creating the Driveway Easement grants to Plaintiffs the right to establish its location, to the extent there is ambiguity in the language, the conduct of the parties at and just after the creation of the Easement Grant requires that any ambiguity is resolved in Plaintiffs’ favor. Plaintiffs clearly established the location of the Driveway Easement through their use of the southerly portion of the 52-foot Wide Right of Way from the time they purchased their lots until this litigation was commenced, and Defendant acquiesced in the use of that location for several years. See One-O-Six Realty v. Quinn, 66 Mass. App. Ct. 149 , 153 n.8 (2006) (holding that where the location of an access easement is undefined, “[u]se of the right of way by the plaintiff and its predecessor in title for many years, coupled with the acquiescence of [the servient estate holder] was sufficient to locate the right of way on the ground across the registered and unregistered parcels”).

Possible Relocation of the Driveway Easement under M.P.M. Builders

The Supreme Judicial Court has adopted the view that a servient estate holder may relocate an express easement, subject to certain conditions. See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004) (holding that relocation of easements by the servient estate holder is a “sensible development in the law” and adopting it as the law of the Commonwealth). A servient estate holder may, at the servient owner’s expense, make reasonable changes to the location or dimensions of an easement as long as the changes do not (1) significantly lessen the utility of the easement, (2) increase the burdens on the owner of the easement in its use and enjoyment, or (3) frustrate the purpose for which the easement was created. Id. at 91-92. Consistent with these principles, Defendant argues that she may relocate the Driveway Easement to the northerly portion of the 52-foot Wide Right-of-Way.

However, since the grant of the Driveway Easement, the Norton Zoning Bylaw has been amended to include specific provisions relating to common driveways, which make the relocation of the Driveway Easement subject to various permitting processes. Any relocation of this easement by Defendant must comply with all the bylaw provisions governing common driveways in Norton including setback, aesthetic, and landscaping requirements. In order for Defendant to have the right to relocate the Driveway Easement as she desires, she would have to obtain all necessary permits and site plan modifications, at her expense, and, at her further expense pay for the relocation itself on the ground. Absent a showing that all necessary permits and site plan modifications have been obtained, this court determines that Defendant does not have a present right to relocate the Driveway Easement under the principles articulated in M.P.M Builders.

Defendant’s Counterclaims

In order to show a trespass, Defendant must show that (1) Defendant had actual or constructive possession of the property and (2) Plaintiffs’ entry was intentional and unauthorized. New England Box Co. v. C & R Construction Co., 313 Mass. 696 , 707 (1943). In the instant case, although Defendant has shown that she was in actual possession of the property in question, she has failed to show that Plaintiffs’ entry was unauthorized. Because this court finds that Plaintiffs have established the location of the Driveway Easement in the very place that Defendant is alleging Plaintiffs have committed trespass, Defendant cannot succeed on this claim.

Similarly, because this court finds that the Easement Grant did not establish the location of the Driveway Easement, reformation is not appropriate. “[A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments . . . on grounds such as fraud, mistake, accident, or illegality. Beaton v. Land Court, 367 Mass. 385 , 392 (1975). Defendant has failed to show any mutual mistake, fraud, accident, or illegality. Indeed, there was no mutual mistake as to the location of the Driveway Easement, but rather, the easement was established by Plaintiffs’ use and conduct. To the extent Defendant has argued that her intention was to have the Driveway Easement located differently within the 52-foot Wide Right of Way, she has failed to prove that there was a mutuality of that intention which was not reflected in the Easement Grant. Therefore, reformation is not available.

Finally, Defendant has counterclaimed against Plaintiffs for nuisance. Defendant contends that the Reynolds have caused damage to their common driveway by driving recklessly and have caused damage to a trash receptacle on at least one occasion. An action for a private nuisance lies where a property owner creates, permits, or maintains a condition or activity on his or her property that causes a substantial and unreasonable interference with the use and employment of another’s property. Doe v. New Bedford Housing Authority, 417 Mass. 273 , 288 (1994). Conduct must be negligent, reckless, or abnormally hazardous to form the basis for a nuisance action. Ted’s Master Service, Inc. v. Farina Bros. Co., Inc., 343 Mass. 307 , 311-12 (1961). This court does not find that Plaintiffs acted negligently, recklessly, or in an abnormally hazardous manner with regard to either vehicular or pedestrian travel over the Driveway Easement or any portion of Defendant’s Property. This court does not find the testimony of Alice Baker or Kathleen Baker credible on the issue of Plaintiffs’ intentional destruction of Defendant’s Property. As a result, Defendant has not carried her burden of showing that Plaintiffs have committed nuisance or caused damage to Defendant’s Property.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: December 29, 2008