KENNETH RENDELL, SHIRLEY McNERNEY, SALWA FAM, DAVID CAHAN, ROBERT GOREN as trustee of the RIVERWAY REALTY TRUST, MIRIAM W. O’DAY as trustee of the O’DAY FAMILY TRUST, GEORGE HRICKO, BENAE HRICKO, MARY LEE FLEISCHMANN, ROBERT PURDY, SYLVIA PURDY, LAWRENCE TSEN, PAULITA TSEN, SUZANNE McCARTHY, ROBERT LOBEL, STANLEY BERMAN, and HARRIET BERMAN v. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION, STEPHEN BURRINGTON as the

Introduction

In July 1940, the trustees of Dartmouth College deeded the property known as Elm Bank, a 182-acre estate on the Charles River in Dover previously owned by the Baltzell family, to the Stigmatine Fathers, a religious order. Primary access to Elm Bank was from Route 16 (Washington Street in Wellesley) and over Cheney Bridge at the property’s western boundary near its main building, the Baltzell Mansion. [Note 1] But included in the deed was an appurtenant “right of way for all usual purposes over the existing driveway,” running in a southerly direction over land then owned by Dartmouth to Dover Street (now Dover Road) in Dover (the “easement”). See Ex. A (Land Court Plan 20044A). Dartmouth subsequently registered its remaining land, part of which has since become a quiet residential neighborhood (Lot C on Ex. A). A portion of the easement and an additional section of road extending to the east serves as access to this neighborhood and is now known as Turtle Lane, a private way. See Ex. B (Decision Sketch). The remainder of the easement leads from Turtle Lane to the boundary line with Elm Bank. Id.; see also Ex. C (Land Court Plan 20044H). That section (often identified as the “driveway”) also is a private way.

At issue is the scope of the permissible use of the easement by the current owner of Elm Bank, the Commonwealth, and its lessee, the Massachusetts Horticultural Society (“MassHort”), [Note 2] which has located its headquarters on the site. The plaintiffs [Note 3] assert that defendants Department of Conservation and Recreation (“DCR”) (which administers Elm Bank), MassHort, and the defendants’ invitees have overburdened the easement. They further contend that Chapter 624 of the Acts of 1986 prohibits the defendants and their invitees from using the easement for anything other than emergency access to Elm Bank. The defendants disagree and contend that they have an easement “for all usual purposes,” they have not overburdened the easement, and the emergency access provision of Chapter 624 does not apply. [Note 4]

A trial was held, jury-waived, and a view was taken. Based upon the Revised Joint Fact Stipulation (Jan. 10, 2007), my observations at the view, the testimony and exhibits admitted into evidence at trial, the parties’ admissions in their post-trial memoranda, and my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the attendant circumstances surrounding the grant of the easement clearly indicate that the defendants can use the easement to access Elm Bank for park purposes, for educational programs, and for recreational events so long as such use does not unreasonably interfere with the plaintiffs’ use and enjoyment of their properties. [Note 5] They cannot use the easement to access Elm Bank for commercial activities. I also find and rule, however, that Chapter 624 currently restricts the defendants’ use of their easement to emergency access only. [Note 6] Finally, none of these rulings affect the defendants’ rights to use Elm Bank. They only affect the defendants’ ability to use the easement to access Elm Bank.

Facts [Note 7]

As noted above, the initial issue in this case is the scope of the Commonwealth’s deeded easement through the Turtle Lane neighborhood to access Elm Bank. [Note 8] “The extent of an easement depends upon the circumstances of its creation. When created by conveyance, the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating. A reviewing court must construe the scope of the easement from the parties’ intent ascertained from the relevant instruments and the objective circumstances to which they refer.” Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789 , 796-97 (2009) (internal citations and quotations omitted). I thus begin by reviewing the relevant circumstances surrounding the grant of the easement and then outline the subsequent history and uses of Elm Bank and the easement, including the enactment of Chapter 624 of the Acts of 1986 and Chapter 105 of the Acts of 1995.

Elm Bank is a 182-acre property currently owned by the Commonwealth (which acquired it by deed) and under the jurisdiction of DCR. The property is located mostly in the town of Dover and, with the exception of the corridor connecting it to Route 16 and another small section in the southwest section, is surrounded by the Charles River on three sides. See Ex. B.

Elm Bank was first developed in the seventeenth century as a private residence. In 1905, the property passed to Alice Cheney Baltzell, who constructed the mansion (still existing today – the Baltzell Mansion on Ex. B) and hired the Olmstead Brothers to design and improve the gardens. In 1939, after her death, the Baltzell Estate (consisting of Elm Bank, its mansion, cottages, and service buildings, and the abutting land between Elm Bank and Dover Street) was transferred to the Trustees of Dartmouth College. At that time, the main access to and from Elm Bank was over Cheney Bridge to Route 16. See Ex. B. There also were several private cart roads and driveways on the property, including a driveway running in a southerly direction from the area near the mansion to Dover Street (now Dover Road) (referred to by the parties as the “Stigmatine Driveway”). Id.

On July 3, 1940, Dartmouth sold Elm Bank to the Trustees of the Stigmatine Fathers, Inc., a religious order. Dartmouth retained the portion of land between Elm Bank and Dover Street, including what is now the Turtle Lane neighborhood (the plaintiffs’ properties). See Ex. A (the Turtle Lane neighborhood is Lot C). In the deed to the Stigmatines, Dartmouth conveyed the following right of way over the portion of the Stigmatine Driveway that crossed the property retained by Dartmouth:

There is hereby granted as appurtenant to said tract a right of way for all usual purposes over the existing driveway extending from a point on the northerly side of said Dover Street opposite the intersection of said Dover Street and Main Street to the intersection of the driveway constituting the southerly boundary of said tract with said driveway from Dover Street, with the right in the grantor to change the location of said right of way provided it shall substitute therefore another way equally convenient between the above described tract [Elm Bank] and said point on Dover Street; together also with a right of way for all usual purposes in the southerly half of said driveway first above mentioned, and subject to a similar right of way in the northerly half of said driveway which is hereby reserved as appurtenant to the grantor’s remaining land [again, the “easement”].

Deed from Trustees of Dartmouth College to The Trustees of the Stigmatine Fathers, Inc. (July 3, 1940), recorded in the Norfolk Registry of Deeds in Book 2288, Page 253 (part of Trial Ex. 108; Trial Ex. 181). This “existing driveway” (again, the “easement”) went through wetland areas and at no point was it more than fifteen feet wide on the ground. [Note 9]

In 1947, Dartmouth registered its remaining land, which consisted of three parcels identified as Parcels A, B, and C. Original Certificate of Title 35632 (part of Trial Ex. 108; Trial Ex. 180); Plan of Land in Dover, Land Court Plan 20044A (June 1946) (part of Trial Ex. 108; Trial Ex. 180). The Original Certificate of Title notes the following:

So much of the land hereby registered as is included within the limits of said way on the north is subject to rights in favor of the land conveyed to said Trustees of the Stigmatine Fathers, Inc. by deed of the Trustees of Dartmouth College, dated July 3, 1940, duly recorded in Book 2288, Page 253, and there is appurtenant to the land hereby registered the right to use said way in common with the owners of said land conveyed as aforesaid all as set forth in said deed dated July 3, 1940.

The land hereby registered is subject to the right in favor of said land conveyed to said Trustees of the Stigmatine Fathers, Inc. by said deed dated July 3, 1940 to use the way shown on said plan running across said parcel C in a southerly direction to Dover Street, said Trustees of Dartmouth College having the right to relocate said way, all as set forth in said deed.

Original Certificate of Title 35632; Order of the Land Court (Reg. Case No. 20044) (Trial Ex. 179). The easement is depicted on Land Court Plan 20044A. See Ex. A.

On June 16, 1947, Dartmouth conveyed Parcel C to Charles and Muriel Copeland. Transfer Certificate of Title No. 36955 (Trial Ex. 183). Again, that certificate noted that Parcel C was encumbered by the right of way. Id. Parcel C subsequently was divided into several lots. [Note 10] A portion of the easement and an additional section of road extending to the east serves these lots and is now known as Turtle Lane, a private way. [Note 11] See Ex. B. On the ground today, Turtle Lane is approximately thirteen to fifteen feet wide, paved, and has no shoulders. [Note 12] The portion of the Stigmatine Driveway located on the Elm Bank side was paved at some point in the 1990s; however, the portion of the Stigmatine Driveway on the Turtle Lane neighborhood side is unpaved until it connects with Turtle Lane. [Note 13]

Although the Board of Trustees of State Colleges agreed to purchase Elm Bank from the Stigmatines for $4,200,000 in 1971, the Secretary of Administration announced in 1973 that the Commonwealth would not fulfill that agreement. After the Supreme Judicial Court held that the agreement was valid and enforceable, the Stigmatines conveyed Elm Bank to the Commonwealth. Deed from the Trustees of the Stigmatine Fathers, Inc. to the Commonwealth of Massachusetts acting by and through the Board of Trustees of State Colleges (Jan. 30, 1976), recorded at the Norfolk Registry of Deeds in Book 5197, Page 372.

In the early 1980s, the Board of Regents declared Elm Bank as surplus property, [Note 14] resulting in it becoming the responsibility of the Department of Capital Planning and Operations (“DCPO”). In 1984, pursuant to G.L. c. 7, et seq., DCPO initiated the surplus property disposition process for Elm Bank. After a long process, including input from a local advisory group, legislation was enacted that authorized DCPO to “transfer, lease or convey all or partial interest in” Elm Bank. Chapter 624 of the Acts of 1986 at 1 (Trial Ex. 4). Chapter 624 divided Elm Bank into two parcels – Parcel A (containing approximately 140 acres) and Parcel B (containing approximately thirty-five acres). [Note 15] Chapter 624 directed DCPO to prepare a master plan, including recommendations of “reuses of each parcel . . . .” Id.

Under Section 2, DCPO was authorized “to transfer the care, control and management of . . . parcel ‘A’ . . . to the metropolitan district commission [now DCR], for public park and water supply protection purposes.” Id. at 3. DCPO also was authorized to prescribe uses for Parcel A, “which may include provision for management of the athletic fields for public use on the parcel through an annual use and occupancy agreement with a local municipal or nonprofit agency and a conservation easement along the Charles River.” Id.

Under Section 3, DCPO also was authorized to “lease . . . or convey a permanent easement . . . for development of wells, access roads, and distribution lines for a public water supply” to the surrounding four towns (Dover, Natick, Needham and Wellesley). Id. at 3-4.

Under Section 4, DCPO was authorized “to lease for a term of up to fifty years or convey by a deed . . . parcel ‘B’, commonly known as the ‘Mansion Area Parcel’, in the town of Dover, to an individual or entity, for residential development purposes.” Id. at 6. Such development was to contain no less than sixty affordable housing units on the approximately thirty-five acres of land in parcel B. Id. at 6-7. This affordable housing development, however, never was constructed.

Most important to this case, the plaintiffs contend, is Section 5, which states the following: The deputy commissioner of capital planning and operations is hereby authorized to retain or grant rights of way on easements across property described in sections one to five, inclusive, of this act for access, utilities installation and maintenance, and construction purposes. In the master plan and disposition agreements, the entrance from Washington Street in the town of Wellesley shall be designated as the primary access to the property and use of Turtle Lane, a private way, and the use of a private driveway shall be restricted to emergency access, except that a temporary easement through Turtle [L]ane shall be authorized for construction of the Framingham extension relief sewer.

Id. at 7. “Subsequent to the enactment of Chapter 624[,] representatives of both Wellesley and Dover sought to amend the statute, deleting [this] emergency access limitation for Turtle Lane, but none of these amendments were enacted.” Revised Joint Fact Stipulation at 9, ¶ 47 (Jan. 10, 2007).

Finally, under Section 6, Chapter 624 indicates that “[f]ollowing adoption of said Master Plan . . ., the deputy commissioner shall solicit and select development proposals and negotiate and execute land disposition instruments based on the requirements of this act and the development guidelines adopted in said Master Plan.” Id.

On March 3, 1992, DCPO transferred the care and custody of Elm Bank to MDC pursuant to a Care and Control Agreement. Trial Ex. 141. The Care and Control Agreement specifically notes that DCPO is “acting under the authority of . . . Chapter 624 of the Acts of 1986 . . . .” Id. It also notes that “[t]he MDC will manage such property for public park purposes, in accordance with this agreement and all applicable laws, statutes, and regulations, and will seek re-uses for the historic structures which are compatible with park purposes.” Id. at 2. Finally, it notes that “[n]othing herein shall be construed to be in conflict with the provisions of M.G.L. Chapter 7 § 40E-40J, and all other applicable General or Special Laws.” Id.

As noted above, the affordable housing development was never constructed. Accordingly, MDC needed authorization for alternative uses of that portion of Elm Bank. After another lengthy process that included many comments from the public, Chapter 105 of the Acts of 1995 was enacted. Chapter 105 authorized MDC, notwithstanding any general or special law to the contrary, . . . to execute and deliver in the name of and on behalf of the commonwealth one or more instruments to lease to the trustees of the Massachusetts Horticultural Society for consideration described in Section 1A of this act a certain parcel of land, which shall not exceed forty acres with the building thereon and under the jurisdiction and control of said commission, known as the Elm Bank Reservation, for a term set forth in section two, for recreational, horticultural, educational and all other purposes consistent and compatible with the protection, restoration, preservation, use and enjoyment of said Reservation by the public, and the operation of the historic Elm Bank buildings and gardens within the metropolitan park system, in cooperation with and as deemed appropriate by said commission.

Chapter 105 of the Act of 1995 at 1. Consideration for the lease included MassHort’s “expenditures for the stabilization and restoration of the structures on the premises . . . .” Id. Depending on the level of expenditures in the first five years of the lease, Chapter 105 authorized the lease to be extended from anywhere between thirty years and ninety-nine years. Id. at 2, Section 2. Chapter 105 did not contain a provision regarding access, but stated that “[p]rior to the signing of any lease under this act, the Massachusetts Horticultural Society (M.H.S.) shall present to the metropolitan district commission traffic impact and visitor safety studies. The metropolitan district commission shall contemplate such studies in preparation of its lease with the M.H.S.” Id. at 4, Section 4A.

Pursuant to Chapter 105, MDC and MassHort entered into a Lease Agreement on April 10, 1996 under which MassHort leased 35.981 acres of Elm Bank. The agreement states that “[t]he Premises as set forth in this Lease, shall be used [by MassHort] for recreational, horticultural, educational and all other purposes consistent and compatible with the protection, restoration, preservation, use and enjoyment of the Elm Bank Reservation by the public, and with the operation of the historic Elm Bank buildings and gardens within the Metropolitan Parks System, in cooperation with and as deemed appropriate by said Commission, and for all other related purposes consistent with said Act.” Lease Agreement at 1 (April 10, 1996) (Trial Ex. 204). “The Premises as described above, include the historic mansion and gardens, the greenhouses, the horticulture building, the school building, the carriage house, and any and all outbuildings and related structures placed within the confines of the Premises as shown on said Plan.” Id. at 4.

The lease explicitly states that “the Lessee shall be subject to any and all regulations and guidelines promulgated by the MDC or its statutory successor which are not inconsistent with the terms and provisions of this Lease. The use of said Premises by the Lessee is subject to all easements and restrictions of record, including but not limited to the rights granted to the Towns of Dover, Natick, Needham and Wellesley for public water supply purposes, pursuant to section 3 of Chapter 624 of the Acts of 1986, and the Wellesley Extension and Framingham Extension Relief Sewer projects to be undertaken and completed at said Premises by the Massachusetts Water Resources Authority.” Id. at 5. The parties to the lease agreed “[t]o restrict parking at and access to the buildings and gardens on the Premises to only those areas designated by mutual agreement of the parties, as set forth within the joint management agreement referenced in Article V hereof.” Id. at 10. The lease also contemplates and permits MassHort “to conduct appropriate educational programs, classes and events and, at the sole discretion of the Lessee, to charge reasonable fees for same.” Id. at 12. Further, the lease requires MassHort to provide access for the public to the Premises. Id. Consistent with Chapter 105, the lease sets forth the expenditures that MassHort is responsible for outlaying as consideration for the lease. Id. at 5-7. Particularly relevant to this case, the lease contains the following provision regarding access:

The Lessor grants to the Lessee the non-exclusive right of access to the Premises, for ingress and egress and for all lawful and necessary purposes, for the duration of this Lease, from Cheney Drive and Turtle Lane in the Towns of Wellesley and Dover, Massachusetts, and from any other point of legal access to the Premises which may be established by the Lessor.

Id. at 13. Finally, the lease specifically states that “[t]his Lease shall be governed by the laws of the Commonwealth of Massachusetts, and the provisions of such laws shall not be deemed waived by any provision of this Lease.” Id. at 18. Pursuant to the terms of the lease, MassHort expended approximately $7.3 million to improve the buildings and facilities at Elm Bank. Based upon its fulfillment of the terms of the lease, the lease was extended for a total of ninety-nine years.

MassHort uses Elm Bank for its educational programs, exhibitions, gift shop, outreach programs, and events. Some events include lectures, workshops, summer gardening programs, the Massachusetts Marketplace Festival (selling plants and food and providing activities), Honorary Medals Dinner, an outdoor summer concert series, and a volunteer appreciation barbeque. MassHort also uses the facilities, including the two greenhouses, to prepare for the annual New England Spring Flower Show. In addition, MassHort hosts horticultural organizations that require space for exhibits and competitions and sponsors numerous events, including an antique car show, weddings, and other social events. MassHort has even rented its faculties for the annual Circus Smirkus summer event. All of these events attract hundreds, and sometimes thousands, of people to Elm Bank.

The Commonwealth and/or MassHort also permit the following uses of Elm Bank: (1) Wellesley and Natick youth soccer leagues, (2) water supply to Natick, (3) the Rivers School’s track meets, (4) Allen Bush, Jr’s small excavation and snow plowing business, and (5) public access for a public canoe launch, hiking, walking, dog walking, and other recreational activities.

Access over Cheney Bridge

The main entrance to Elm Bank is, and has always been, from Route 16 (Washington Street) in Wellesley over Cheney Bridge. Cheney Bridge was originally constructed in 1898 and has been designated as a National Historic Landmark. It is approximately sixty feet long, fifteen feet wide, and is confined to one-way traffic at any given time.

When the Stigmatines first acquired Elm Bank, Cheney Bridge did not have a posted weight limit. However, the stability of the bridge was an early concern to the Stigmatines. Joint Stipulation of Trial Testimony at 6, ¶ 27 (Witness Y) (April 5, 2007). While it is unclear from the record whether the Stigmatines had the bridge repaired during their ownership, such work has taken place periodically over the last thirty-five years.

Around 1977 or 1978, the Quinobin Regional Vocational Technical School (which was using Elm Bank at the time) paid for repairs to the bridge, which caused the bridge to be closed for an unknown period. Prior to 1990 (and presumably after the school made its repairs), the weight limit for Cheney Bridge was five tons. [Note 16]

From June 1989 to May 5, 1990, the bridge was closed to all traffic for repair work. When it reopened, it had a posted weight limit of three tons.

At some point in 2004, Cheney Bridge was once again closed for repairs for a brief period of time. A 2004 Department of Public Works report indicated that a low clearance sign was installed that read, “warning cars only.” Revised Joint Fact Stipulation at 35, ¶ 184. The report also indicated that the weight limit was three tons and trucks exceeding that weight were not permitted to use it. Id.

From May to June 2005, the bridge was closed again for major repairs. Since the bridge reopened in 2005, its new weight limit is twelve tons. Any vehicles greater than twelve tons are directed by MassHort and DCR to use the easement to access Elm Bank.

During the bridge closures, the easement was the only means of access to Elm Bank. In 2004 and 2005, DCR and MassHort thus instructed all traffic to use the easement to enter and exit Elm Bank. In 2005, DCR also dispatched park rangers to direct traffic.

Use of Elm Bank and the Easement from 1940 to 1976

The earliest evidence of the Stigmatines’ use of Elm Bank and, in particular, their traffic patterns, came from Witness X. [Note 17] Witness X testified that he lived on Elm Bank from approximately 1940 (when the Stigmatines first acquired the property) until 1952. During that time, approximately thirty Stigmatine fathers and seminarians lived at Elm Bank and the property “was not regularly used by or open to the public.” Joint Stipulation of Trial Testimony of Witness X at 3, ¶¶ 12-13. Witness X further testified that Turtle Lane [Note 18] was a dirt road with a grass strip down the middle, Cheney Bridge did not have a posted weight limit, and there were no access restrictions posted for either Cheney Bridge or Turtle Lane. Although the Stigmatines owned several automobiles, two or three buses, and a single-axle dump truck, Witness X testified that so far as he remembers, they only used Cheney Bridge to enter and exit the property. Witness X did note, however, that during the 1940s and early 1950s, the Stigmatines would occasionally travel over Turtle Lane and he would walk up Turtle Lane to Elm Bank after being dropped off by the school bus after school. This continued until he was ten, when he attended Mt. Trinity Academy and went to and from school via Cheney Bridge.

Although deliveries of ice, kerosene and oil were made to the property, Witness X does not remember how the trucks making these deliveries accessed Elm Bank. Similarly, although Elm Bank contained a basketball court, croquet court, two tennis courts, and a seasonal ice hockey rink, Witness X does not remember anyone other than the Stigmatines using these facilities. However, the property also had a baseball field, which Witness X remembers “being used by others besides the Stigmatines one to two times a month” from 1947 to 1952. Id. at 5, ¶ 22. It is unclear who the “others” were and how they accessed the property. According to Witness X, the only events that the Stigmatines held that were open to the general public were a total of six carnivals and horse shows [Note 19] held between 1947 and 1952 and bingo nights three to five times a year during that same time period. [Note 20] Witness X did not testify as to how the public accessed Elm Bank for these events.

Witness Y, who lived at Elm Bank from 1952 to 1957 and 1966 to 1970, presented similar testimony. [Note 21] Between 1952 and 1957, Witness Y testified that the seminarians would travel approximately once or twice a month in a school bus over Turtle Lane [Note 22] to Dover Road for various reasons, including bowling, athletic games, and visiting churches. Witness Y also testified that sports teams from other schools would travel via school buses to Elm Bank over Turtle Lane approximately ten to twelve times during each sporting season. Witness Y further testified that he personally would travel “over Turtle Lane in a car once in a while to visit the doctor.” Joint Stipulation of Trial Testimony (Witness Y) at 2, ¶ 6.

Between 1966 and 1970, Witness Y was in charge of the Stigmatines’ formation classes, for which seminarians would travel to other schools. To do so, they largely entered and exited the property via Cheney Bridge, but on occasion, they used Turtle Lane. Witness Y further testified that the Stigmatines operated a summer camp during this time period. Approximately 200 to 250 children attended the camp, most of whom were driven by their parents via the Cheney Bridge entrance. Some campers would travel by bus (five to eight buses were used) over Turtle Lane during both the week and on weekends. Witness Y also testified that he would travel over Turtle Lane approximately three to four times per week to go play golf during this time period. In addition, Witness Y testified that the public also used Elm Bank for its recreational facilities and he directed them to access the property via Turtle Lane. Some members of the public (neighbors) also attended mass at Elm Bank, but it is unclear how they accessed the property. Witness Y also testified regarding other events held at Elm Bank, including dog shows (1956, 1966 to 1970) and a circus. Witness Y testified that attendees and delivery trucks accessed the dog shows by both the Cheney Bridge and Turtle Lane entrances. There was no testimony regarding use of Turtle Lane for the circus, however.

The testimony of Witnesses X and Y was generally consistent with the trial testimony of Miriam O’Day, Mark O’Day (Miriam’s son), and Alan Bush, Jr. [Note 23] Miriam and Mark O’Day both testified that there was minimal traffic over the easement in the 1950s. [Note 24] Indeed, Ms. O’Day testified that when they first moved to their property, the driveway portion of the easement (see n.13, supra) was not clearly visible until the town of Dover cleared it in the 1950s. She also testified that she only saw about one car every week or two using the easement. Mark O’Day even testified that as a child, he would spend hours playing on the Stigmatine Driveway and would rarely see any traffic there. Mr. Bush testified that when the Stigmatines owned the property, he only recalled seeing oil delivery trucks using the easement to access Elm Bank.

In addition to the Stigmatines' uses of Elm Bank, after a fire damaged the Caryl School, the town of Dover used classrooms at Elm Bank for its students from 1970 to 1972. Trial Ex. 42 at 12. The record does not indicate the number of students that used those classrooms or the level of activity associated with the school. However, Mr. O’Day testified that he remembered seeing school buses using the easement to access Elm Bank.

Use of Elm Bank and the Easement from 1976 to 2003

As noted above, the Commonwealth purchased Elm Bank in 1976. From 1978 to 1987, Elm Bank was used for the Quinobin Regional Vocational Technical School. Al Chouinard, the superintendent director of the school, testified that approximately 270 to 480 students from Natick, Wellesley, Dedham and Milton attended the school each year. [Note 25] In addition to the school’s educational programs (which included a restaurant operation), Mr. Chouinard testified that an annual dog show, a design show for the Junior League of Boston, and one movie production took place at Elm Bank over that nine year period.

When the vocational school first leased the property, Mr. Chouinard testified that Cheney Bridge was closed for repairs, which the school paid to complete. Prior to and during the closure, much of the traffic for Elm Bank went over the easement, including the school’s six buses (thirty-six trips per day) [Note 26] and construction vehicles involved in fixing the buildings for the school. After the bridge was repaired, Mr. Chouinard testified that most vehicles (including the school buses) then used Cheney Bridge to access the school. [Note 27] However, oil delivery trucks, heavy equipment, and supply trucks still used the easement to access the property. For example, the school continued to make numerous repairs to the buildings and facilities at Elm Bank and, according to Mr. Chouinard, all of the construction vehicles used the easement to access Elm Bank. Mr. Chouinard further testified that during the time the school was in operation, Turtle Lane was not in good condition and the school wanted to pave it. However, the residents objected and the school simply repaired potholes as necessary.

Mr. Bush also continued to use the property and testified that during the time the vocational school was there, he used Turtle Lane approximately one time per week. He did not, however, recall whether the school also used Turtle Lane to access the property.

Elm Bank was home to a variety of other uses during the time period prior to DCPO declaring it as surplus property. As noted above, from approximately 1977 or 1978 to 1987, dog shows were held each year at Elm Bank. Jane Smith, a member of the Ladies Dog Club, Inc. from 1977 to 1983 and its President from 1980 to 1983, testified that she attended each of the dog shows from 1977 to 1983 and she observed all traffic going to the dog show over Cheney Bridge. Assented to Stipulation of Rebuttal Testimony (Jane Smith) at 2 (Jan. 17, 2007). Further, she testified that she never saw anyone use Turtle Lane for the dog shows. Id. From 1980 to 1981, the Commonwealth Career Center used the mansion for its offices. As noted above, a movie also was filmed at Elm Bank, which involved using numerous large vehicles, trailers, and trucks. However, it is unclear from testimony how these vehicles accessed Elm Bank.

As noted above, the Board of Regents declared Elm Bank as surplus property in the early 1980s and DCPO began the surplus disposition process in 1984. [Note 28] Revised Joint Fact Stipulation at 8, ¶¶ 35-36. Although DCPO formally transferred care and control of Elm Bank to MDC in 1992, MDC managed Elm Bank prior to 1992 pursuant to an agreement with the DCPO. [Note 29] The following are examples of the various uses of Elm Bank beginning from the time MDC began managing the property. From the 1980s to today, Elm Bank has been used by local towns and youth soccer clubs for soccer games and tournaments. Indeed, in 1995, the defendants estimated that soccer tournaments attracted over 3,000 people each day. Trial Ex. 94 (MassHort Traffic Feasibility Study, cited by the Commonwealth in its Post-Trial Memorandum at 37). MDC also has estimated that approximately 20,000 youths visit Elm Bank for soccer each year. Trial Ex. 154. Except when Cheney Bridge has been closed, the majority (if not all) of soccer-related traffic comes over the bridge. However, the youth soccer clubs hire lawn-servicing companies to maintain the fields and companies to provide portable toilets. These companies access the property via the easement.

Elm Bank also has been used as a public park for passive recreation. Members of the public use Elm Bank for running, walking, biking, and as an access point for water activities on the Charles River. During the process of transferring control of Elm Bank to MDC, MDC estimated that approximately 20,000 people visit the property for recreation (including 1,000 canoeists) each year. Trial Ex. 154 (Sept. 11, 1991 letter to DCPO). Again, except when Cheney Bridge has been closed, the vast majority of this traffic comes over the bridge. Although the testimony was clear that Elm Bank has been used for recreation since MDC has managed it, Mr. Hollenbeck (a DCR employee that managed Elm Bank) testified that to his knowledge, in 1986, there was no regular food service or any large festivals at Elm Bank. [Note 30] Thus, it is unlikely that any vehicles associated with such activities used the easement during the early years of the Commonwealth’s ownership of Elm Bank.

Since entering into its lease with MDC in 1996, MassHort also has used Elm Bank. As noted above, MassHort uses the facilities and grounds for educational programs, exhibitions, horticultural competitions, recreational activities, functions, and events. These include gardening programs, workshops, antique car shows, a summer concert series, weddings, and other social events. MassHort has even rented the property to Circus Smirkus. These events have attracted hundreds to thousands of members of the public.

At some point in the past (the plaintiffs believe in the mid-1980s), a gate was installed across the Stigmatine Driveway at the Elm Bank/Turtle Lane neighborhood boundary. From the time MassHort’s lease began up to July 2005, [Note 31] that gate was left open during business hours (from dawn to dusk). MassHort made no effort to discourage people from using the easement to access Elm Bank. Nonetheless, for at least much of this period, very little traffic actually used this route. For example, Mr. Hollenbeck testified that when he became responsible for managing Elm Bank in 1996, the extent of traffic over the easement (to his knowledge) included only occasional trucks and oil/lumber deliveries.

This testimony was consistent with most of the plaintiffs’ testimony as well. Mr. Rendell testified that when he first moved to Turtle Lane in 1986, the driveway to Elm Bank was simply a two-track road with significant grass growing between the tracks, that it often was not used, and that he almost never observed any traffic over it. Likewise, David Cahan testified that when he moved to 3 Turtle Lane in 1983, Turtle Lane was poorly paved, potholed, rutted and had only minimal traffic throughout the 1980s. He further testified that he was not even aware of Elm Bank until there was a flood across Turtle Lane in the mid-1980s, cutting off access to Dover Road and requiring the residents of the Turtle Lane neighborhood to use the Stigmatine Driveway to leave their properties. He testified that the Stigmatine Driveway was in rough condition at that time — an unpaved two-track road with grass growing in the center. Similarly, Ms. O’Day testified that in the 1970s and 80s, it seemed like the public did not know about Elm Bank. Ms. Fleischmann and Ms. Purdy also testified that in the 1980s there was virtually no traffic over the easement.

There was inconsistent testimony regarding exactly when the traffic began to increase over the easement. Some testified that they noticed an increase in traffic in the late 1980s. For example (as noted above), Ms. O’Day testified that in the mid-1980s MDC installed a gate on the portion of the Stigmatine Driveway on Elm Bank near the property line. She requested that MDC keep the gate closed because she was beginning to notice an increase in traffic. However, she testified that she did not notice traffic in the evening. Her testimony, however, was inconsistent with other neighbors’, although it should be noted that some of these neighbors live farther away from the driveway section of the easement. For example, Mr. Rendell testified that traffic began to increase tremendously in the late 1990s. Indeed, he noted that as a result of the increased traffic, he installed a speed bump near his mailbox to prevent people from driving too fast on Turtle Lane. Mr. Rendell’s testimony was consistent with Mr. Cahan’s (noting that there was a significant increase in traffic in the last five years or so (early 2000s)), Dr. Tsen’s (testifying that when he moved to 10 Turtle Lane in 2002 (on the eastern portion of Turtle Lane), traffic was minimal), Ms. Fleischmann (noting that when she moved to 8 Turtle Lane in 1997, there was no traffic and traffic has increased since then), Ms. Krock (noting that when she first moved to 5 Turtle Lane in 2001, she was not aware of traffic), and Ms. McCarthy (noting that there was no traffic when she moved to 11 Turtle Lane in 1995 and traffic became worse in the last five years or so). Use of Elm Bank and the Easement from 2004 to June 2005

In general, use of Elm Bank remained the same during the 2004 to 2005 time period and included soccer games, use of the property as a park, and MassHort events, all as described above. In addition, at some point in 2005, MassHort gave permission for a charity running event to use the trails on Elm Bank as a portion of the running course. In order to access Elm Bank for the race, large numbers of runners ran over the easement. See Trial Exs. 439-46, 524-27. MassHort did not notify or seek permission for such a race from the residents of the Turtle Lane neighborhood. The plaintiffs testified that a huge number of participants ran over Turtle Lane and their properties, leaving significant trash that was not cleaned up by the charity, the runners, or MassHort.

Although the uses of Elm Bank remained substantially the same as they had been since MDC began managing the property, it is very clear from the plaintiffs’ testimony that traffic to Elm Bank over the easement increased exponentially during the Cheney Bridge renovations and associated closures in 2004 and 2005 when that route was the only way the property could be accessed. See Trial Exs. 403-11 (photographs depicting the traffic). There was extensive testimony and evidence that showed that when Cheney Bridge was closed, DCR and/or MassHort directed the public, persons attending Elm Bank events, and soccer teams to use the easement. Mr. Rendell testified that during the bridge closures, the traffic “problem was monumental.” Trial Transcript, Day One at 53 (Dec. 11, 2006). Mr. Cahan testified that there was a constant stream of traffic on weekends. Ms. O’Day testified that there was an enormous amount of traffic . . . I don’t think there was a ten-minute period during the day that something wasn’t coming or going.” Id. at 235. Indeed, Ms. O’Day counted 700 cars using Turtle Lane and the driveway in a single day, meaning 350 in and 350 out. Id. at 235-36. She also testified that people would become impatient and drive on her lawn in an attempt to get to Elm Bank. During this time, cars even backed up onto the eastern leg of Turtle Lane (the section not encumbered by the easement). Dr. Tsen noted that some even parked their cars in front of his house during the bridge repair, destroying his lawn so that he and his family had to install a gravel section near the road. Likewise, Ms. Fleischmann testified that she had to install large boulders on her lawn to prevent vehicles from driving on her lawn. Both Ms. Krock and Ms. O’Day also testified that the traffic during the bridge closures was so bad that they could not even exit their driveways. Ms. Krock testified that “it was a virtual imprisonment on Turtle Lane.” Trial Transcript, Day Two at 272.

Indeed, seemingly as a recognition of the traffic problems from the 2004 bridge closure, DCR provided seasonal rangers to direct traffic. Despite this effort, the neighbors testified that traffic was still horrendous and they had difficulty going to and from their homes. Some also testified that the rangers refused to allow them to exit and enter their properties.

Use of Elm Bank and the Easement since the Cheney Bridge Repairs

Cheney Bridge reopened after the repairs were completed in 2005. Again, the uses of Elm Bank remained substantially the same, but trial testimony indicates that traffic over the easement changed after the bridge reopened. For a short period after the bridge reopened, although traffic decreased significantly, some traffic still used the easement to access Elm Bank. Some of this, as Mr. Cahan testified, was likely from vehicles that had used the route during the bridge closure and realized that Turtle Lane was a shortcut to Elm Bank from certain parts of Dover and Needham. However, it is clear that at least since January 2006 (if not sooner), in response to the plaintiffs’ concerns and the pendency of this action, the gate across the driveway at the Elm Bank/Turtle Lane neighborhood boundary has been kept locked by two locks – one using a key and the other a combination lock. [Note 32] Plaintiffs’ Designation of Rule 30(b)(6) Deposition Testimony of Massachusetts Department of Conservation and Recreation at 54 (filed Jan. 3, 2007) (Feb. 13, 2006 deposition testimony of Kevin Hollenbeck). Keys to that lock were given to MassHort (multiple keys), the town of Dover’s fire and police departments, the town of Natick (to access its water supply), MWRA, and the soccer landscaping company. Id. at 55-56. The combination to the lock also was given to MassHort and the soccer teams. Id. at 74, 76. There also is a general (unwritten) MassHort policy that all vehicles that are under the twelve-ton weight restriction should enter and exit Elm Bank via Cheney Bridge. Whether a vehicle exceeds the weight restriction, however, is left to the driver to determine.

Since the gate has been kept locked, general vehicle traffic has diminished significantly and has almost been eliminated completely. [Note 33] However, delivery trucks, buses and other heavy vehicles still use the easement to access Elm Bank. [Note 34] There was significant testimony regarding numerous vehicles entering Elm Bank for events. [Note 35] This traffic includes catering trucks for events such as weddings, oil deliveries, box trucks delivering supplies and other items for events, trucks with portable toilets for soccer, and delivery trucks such as UPS. Ms. Krock testified that she believes this “commercial traffic” has become worse since the bridge reopened and she sees vehicles weighing less than twelve tons using Turtle Lane as access (approximately twelve per week). Both Ms. Krock and Ms. O’Day testified that much of this traffic occurs at night.

Mr. Herrera-Mischler testified that for catered events at Elm Bank, there is no available kitchen so catering companies must bring everything necessary for their service. The catering vehicles generally use the easement for access. Ms. O’Day testified that these vehicles occasionally leave Elm Bank and travel over the easement as late as 1:30 in the morning.

After the trial concluded, a movie production company filming on Elm Bank pursuant to a contract with MassHort and/or DCR used the easement for truck access. These trucks, many of which were large, eighteen-wheelers, accessed Elm Bank late at night, without any warning to the Turtle Lane homeowners, and caused considerable damage to their properties.

Other pertinent facts are included in the analysis section below.

Analysis

The scope of the defendants’ permissible use of the easement has two parts. The first is the scope of the easement based upon the language of the deed and the attending circumstances surrounding the grant. The second is the scope of the use of the easement under the provisions of Chapter 624. This use is narrower than the permissible use based upon the deed and is currently controlling. I analyze each separately, beginning with the grant of the easement in the Stigmatine Deed.

The Scope of the Easement as Described in the Stigmatine Deed

It is important to note at the outset that “[s]ince it is the defendant[s] who rel[y] upon the easement, the burden rests upon [them] to show that [their] right is extensive enough to authorize the amount and character of the use which [they have] made of the way.” [Note 36] Swenson v. Marino, 306 Mass. 582 , 583 (1940). The defendants’ rights arise solely from the Stigmatine Deed and can be no greater than that grant. As previously noted, “[t]he extent of an easement depends upon the circumstances of its creation. When created by conveyance, the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating. A reviewing court must construe the scope of the easement from the parties’ intent ascertained from the relevant instruments and the objective circumstances to which they refer.” Cannata, 73 Mass. App. Ct. at 796-97 (internal citations and quotations omitted).

The Stigmatine Deed “granted as appurtenant to [Elm Bank] a right of way for all usual purposes over the [then] existing driveway.” Stigmatine Deed at 1-2. Such a grant for “[a]ll usual purposes” generally allows “every reasonable use to which the dominant estate may be devoted, [which] may vary from time to time with what is necessary to constitute full enjoyment of the premises.” Mahon v. Tully, 245 Mass. 571 , 577 (1923); see also Tehan v. Security Nat’l Bank of Springfield, 340 Mass. 176 , 182 (1959); Doody v. Spurr, 315 Mass. 129 , 133 (1943); Swenson, 306 Mass. at 586; Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504 (1986). “And what the uses are to which the land granted might be conveniently put depends on the various circumstances including what was in the minds of the plaintiff and her grantor when the conveyance was made.” VanBuskirk v. Diamond, 316 Mass. 453 , 460 (1944); see also Patterson v. Paul, 448 Mass. 658 , 665 (2007); Commercial Wharf E. Condominium v. Waterfront Parking, 407 Mass. 123 , 131, 138 (1990); Doody, 315 Mass. at 133; Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). “The ‘attending circumstances’ may include relevant uses made of the servient tenement at the time of, or prior to, the instrument creating the easement. Subsequent use of the easement also may be relevant, at least if ambiguity exists. Subsequent use, however, at most is only one relevant factor and the presence or absence of evidence of such later use (where admissible) is not decisive. At least where some ambiguity requires explanation, there is no violation of the parol evidence rule in receiving extrinsic evidence.” Pion v. Dwight, 11 Mass. App. Ct. 406 , 412 (1981) (citations omitted).

The following “attending circumstances” surrounded the grant of the easement. [Note 37] At all relevant times, the Stigmatine Driveway (including the easement portion of the way) was fairly narrow (no more than fifteen feet wide on the ground) and, at the time of the grant, was a dirt road with a grass strip in the middle. [Note 38] In addition, the easement passes through a flood plain and portions of the immediately surrounding area contain wetlands, making any expansion of the way difficult, if not impossible. At the time of the grant (July 1940), Elm Bank contained the mansion, cottages, and service buildings, all of which were located closer to Cheney Bridge. See Ex. B. There were no structures on the retained land (now the Turtle Lane neighborhood) at that time and it is unclear from the record what uses Dartmouth made of that property at the time of the grant. [Note 39]

However, Dartmouth soon thereafter subdivided the retained land and sold Lot C (the Turtle Lane neighborhood land). [Note 40] It is thus a fair inference that Dartmouth intended to maximize the property’s resale value and subject it to as little burden as possible. Then, as now, that land was zoned residential. It is a fair inference (and one that I make) that high volume uses of a road and more than occasional use by trucks or other large vehicles lessens the fair market value of the residential properties that border it. Accordingly, Dartmouth likely did not intend such uses of the easement at the time of the grant. Based upon the Stigmatines’ subsequent use of the easement (discussed below), they also did not intend such uses except for one particular instance – the need to use the easement to access Elm Bank if (and when) it was necessary to close Cheney Bridge for repair. [Note 41]

In addition to granting the easement, Dartmouth conveyed the main parcel (surrounded on three sides by the Charles River), fee title to Cheney Bridge, the lands under the bridge, and the corridor of land to the west of the bridge that connects Elm Bank to Route 16 (Washington Street) to the Stigmatines. See Ex. B. Since at least the 1940s (which would include the time of the grant) and almost certainly since the first development of the property, the main entrance to Elm Bank has been from Route 16 over Cheney Bridge. Even after Dartmouth deeded the property to the Stigmatines, the easement continued to be used solely as a back entrance.

So far as the record shows, the easement was used (at most) infrequently at the time of the grant. [Note 42] Likewise, as noted in greater detail above, the Stigmatines subsequently used the easement infrequently (ranging from “occasionally” to once or twice a month). The Stigmatines’ invitees also infrequently used the easement to access the property to use the recreational facilities and to deliver food and oil.

In the 1940s and early 1950s, Elm Bank was not regularly open to the public and was generally only used by the Stigmatines for residential, recreational, and educational purposes. As the years passed, the Stigmatines used Elm Bank for additional uses, such as a summer camp, dog shows, and, on one occasion, a circus. Witness Y testified that most summer camp attendees used the Cheney Bridge entrance to access the property, but that approximately five to eight school buses used the Stigmatine Driveway on the days the summer camp was open. Mass was also held at Elm Bank for the residents, their families and some neighbors; however, it is unclear how these families and neighbors accessed Elm Bank, or how often they came.

Accordingly, construing the easement language contained in the Stigmatine Deed in light of this evidence, the following uses of the easement are permissible. Although the public rarely used Elm Bank at the time of the grant or shortly thereafter, it was certainly within the intent of the easement grantor (Dartmouth College) for the occupants of Elm Bank and their invitees (including members of the public) to use the easement to access Elm Bank (subject, however, to the parameters outlined below). See Tehan, 340 Mass. at 186 (where members of the public (customers of a bank) could use the easement). Consistent with the grant of a “right of way for all usual purposes,” and subject to the limitations set forth below, the dominant estate can use the easement for vehicular use (including cars, buses, delivery trucks, and other heavy vehicles), as well as pedestrian and bicycle traffic. [Note 43] See McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 365 (1996); Swenson, 306 Mass. at 587; Michaelson v. Nemetz, 4 Mass. App. Ct. 806 , 806-07 (1976). Such traffic can permissibly occur not only during the day, but also at night and early in the morning. [Note 44] Brodeur, 22 Mass. App. Ct. at 504-05.

Such vehicles, pedestrians, and bicyclists can use the easement for the following uses at Elm Bank. Although the plaintiffs argue that Elm Bank (and therefore the easement) was used immediately before and after the grant for private, residential purposes (and based on that, they argue that public and “commercial” uses are not consistent with the easement or permissible), the actual uses of Elm Bank at that time cannot be characterized so narrowly. [Note 45] Although the parties to the deed were private institutions, their uses of Elm Bank were for more than simply residential purposes. As described above, it is unclear how Dartmouth College, a private university with its main campus in another state, used the property (if at all) at the time it was deeded it to the Stigmatines. However, it is clear that the Stigmatines used the property for residential, religious, educational, and recreational purposes and these uses surely were within the contemplated scope of the grant. Moreover, the terms of the grant did not limit the use of Elm Bank simply to private, residential purposes.

This does not mean, however, that any use of the easement for these purposes is permissible. Again, “[t]he way is available for the reasonable uses to which the dominant estate may be devoted” and only those uses. Hodgkins v. Bianchini, 323 Mass. 169 , 173 (1948) (emphasis added). In determining the extent of permissible use of the easement, [Note 46] “[i]t is to be assumed that [the parties] anticipated such uses as might reasonably be required by a normal development of the dominant tenement.” Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004) (alterations in original, citation omitted). At the time of the grant, Elm Bank was a large, open parcel with relatively little development on it. It is eminently reasonable to presume that such wide-open spaces would be used as a park, particularly in light of the historic nature of Elm Bank. [Note 47] It is similarly reasonable for DCR and MassHort to use it for recreation and education because the Stigmatines used Elm Bank for those purposes immediately after the grant. It also is reasonable for DCR and MassHort to use the easement to access Elm Bank for most of the types of events that were described at trial. These events include educational programs and recreational events (e.g., soccer games, horticultural events, workshops) that are similar in nature to events and programs held by the Stigmatines (e.g., small sporting events, dog shows, mass, summer camps). It is not reasonable, however, for DCR, MassHort, and their invitees to use the easement to access Elm Bank for circuses, movie productions, wedding receptions, business conferences, or events of similar nature. Such activities are of such an intensity and commercial nature that they could not reasonably have been anticipated by the parties to the deed. [Note 48]

Finally, DCR and MassHort may maintain and repair the easement. Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981). To the extent that it can lawfully do so given the presence of wetlands in the area, such maintenance and repair can include paving the easement area, which, as noted above, is fifteen feet wide. [Note 49] Id. As DCR argues in its post-trial brief, it does not need to seek the plaintiffs’ permission to do so since this is allowed pursuant to its deeded easement rights. However, it is reasonable for DCR to provide the plaintiffs with advance notice in writing if and when it chooses to exercise this right.

Some limitations on the volume of traffic are reasonable, however, based upon the facts of this case. Michaelson, 4 Mass. App. Ct. at 807 (“Although it is open to inference that the way will be used by an increased number of persons,” the frequency and timing of usage may be unreasonable as matters of law depending on the facts of the case). It is clear that the parties to the deed intended for Cheney Bridge to serve as the primary access point to Elm Bank and that the easement would be used as a secondary access point. [Note 50] This is consistent not only with the uses made of the easement shortly after the conveyance of Elm Bank from Dartmouth to the Stigmatines (occasional vehicular and pedestrian use), but also from the fact that, unlike the easement, the Stigmatines held fee simple title to the lands over which the primary access route was located.

Certainly, the occasional deliveries of oil (as needed to maintain a sufficient supply for the property) and construction supplies and equipment as reflected in the testimony are well within reason and are thus permissible. In addition, so far as the record shows, the current volume of occasional pedestrians and bicyclists is well within reason. [Note 51] It is also permissible for DCR and MassHort to allow heavy vehicles to enter Elm Bank via the easement so long as such use is at a reasonable level (see discussion below). [Note 52] Swenson, 306 Mass. at 587; see also n. 43, supra. Although these permissible uses arguably have impacted the nature of the Turtle Lane neighborhood, they are still reasonable and consistent with the broad language of the easement and the intent of the parties at the time of the grant and are therefore authorized. [Note 53] Commercial Wharf, 407 Mass. at 133 (“the existence of this easement undoubtedly interferes, as a practical matter, with the uses the [servient estate] could otherwise make of its property. But that characteristic is inherent in the nature of an easement.”); Hodgkins, 323 Mass. at 173 (court found that limits to the easement were not exceeded despite it being used to transport fifteen to twenty loads of gravel per day, large trucks expanded the width of the lane, and dust generated from the uses entered the plaintiffs’ homes).

Obviously, any of these permissible uses of the easement cannot substantially interfere with the plaintiffs’ enjoyment of their property or unreasonably diminish its value. Swensen, 306 Mass. at 587. As further described below, it is not reasonable for people (by vehicle, bicycle, or foot) to access Elm Bank via the easement on a nearly continuous basis. Id. at 585 (despite a broad easement, court held that “use of the way for carrying on of a practically continuous business of mining sand and gravel on the wood lot exceeds any privilege shown to have been acquired, amounts to a new servitude, and overloads the easement”). Use of the easement as a major entrance/exit for Elm Bank is not reasonable based upon the attendant circumstances of the grant, despite the broad language in the deed. [Note 54] A constant stream of traffic over a way that was intended to be used as a back entrance unreasonably interferes with the plaintiffs’ enjoyment of their property. In addition, vehicles (no matter what size) cannot damage the plaintiffs’ properties by driving over their lawns or landscaping.

It should be noted, however, that the plaintiffs also cannot interfere with the defendants’ use of the easement. Commercial Wharf, 407 Mass. at 134; Texon, Inc. v. Holyoke Machine Co., 8 Mass. App. Ct. 363 , 365-66 (1979). For example, it is an unlawful interference with the defendants’ easement rights for the plaintiffs to place boulders, logs, and the like within the easement right of way. Since the easement is relatively narrow, such impediments interfere with the defendants’ ability to access Elm Bank. Accordingly, if such materials are within the right of way, the plaintiffs shall move them and, if they do not, the defendants may do so. [Note 55]

Furthermore, based upon the facts presented at trial, it is clear that the use of the easement by MassHort, DCR, and their invitees during the time of the 2004 and 2005 bridge closures was an overburdening (an overly frequent or intensive use that is sometimes identified as a nuisance) of the easement. Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 440 (2006); Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 319 n.12 (2005) (“The term ‘overburden’ is occasionally used to describe any use that exceeds the scope of rights held under an easement. . . . Some commentators have used ‘overburden’ to describe only use of an easement for a purpose different from that intended in the creation of the easement, ‘overload’ to describe the situation . . . where an appurtenant easement is used to serve land other than the land to which it is appurtenant, and ‘nuisance’ to refer to overly frequent or intensive use.”). Although it is permissible for there to be a reasonable increase in the frequency and intensity of use of the easement since the time when the easement was granted, the sheer volume of traffic during the 2004 and 2005 bridge closures “unreasonably disturb[ed] the use of such property by the owners thereof, [and] s[u]nk to the level of an actionable nuisance . . . .” [Note 56] Lane, 65 Mass. App. Ct. at 440.

As noted in the fact section above, there was extensive testimony that the easement essentially became a high volume highway to Elm Bank during the bridge closures. The plaintiffs were unable to enter or exit their properties without great difficulty and delay. Furthermore, some plaintiffs testified that a few impatient drivers actually drove over their properties, damaging their lawns and landscaping. The traffic was so significant that DCR hired rangers in an attempt to direct traffic. Such an intensity and frequency of use of the easement is not a reasonable increase in use from what the parties to the deed intended and therefore it did not constitute a reasonable use of the easement. Swenson, 306 Mass. at 583-86. The conditions on the use of the easement during any future bridge closures (under both the Stigmatine Deed and Chapter 624) will be discussed in detail below.

Easement as Limited by Chapter 624 of the Acts of 1986

The discussion above explains the scope of the easement rights conferred by the Stigmatine Deed – the outer limit of the defendants’ rights unless a taking occurs. However, that does not end the inquiry since the scope of those rights was subsequently (and is currently) limited by Chapter 624 of the Acts of 1986.

As noted above, once the Board of Regents declared Elm Bank to be surplus property in the early 1980s, it became the responsibility of DCPO. As part of the disposition process, legislation was enacted that authorized DCPO to dispose of the property in a manner consistent with “the immediate preservation of the public convenience.” Chapter 624 of the Acts of 1986 at 1 (Trial Ex. 4). The legislature clarified that statement by outlining the permissible uses of Elm Bank and stating that the purpose of the act was “the immediate redevelopment or protection of underutilized state owned property for the public benefit . . . .” Id. Accordingly, DCPO was authorized “to transfer, lease or convey all or partial interest in . . . ‘Elm Bank’ . . . to individuals and entities for the purposes and subject to the terms and conditions described in this act, Elm Bank development guidelines . . . and in a ‘Master Plan’ to be prepared for the property . . . .” Id. Relevant to the easement, the legislature specifically noted that “[i]in the master plan and disposition agreements, the entrance from Washington Street in the town of Wellesley shall be designated as the primary access to the property and use of Turtle Lane, a private way, and the use of a private driveway shall be restricted to emergency access . . . .” Id. at 7, Section 5 (emphasis added).

The defendants argue that this section only applied to the proposed affordable housing development and since that development never came to fruition, the statute’s emergency access provision is no longer applicable to their use of the easement. They further argue that since a master plan was never adopted, DCPO did not comply with Section 6 of Chapter 624 and therefore “one of the two condition[s] contained in the second sentence of section 5 of the 1986 Act can never be fulfilled.” Commonwealth’s Post-Trial Memorandum at 107. From this, they argue that the emergency access limitation was never imposed when the property transferred to MDC and thus contend that such conveyance was made with all of the rights granted in the Stigmatine Deed (referred to in the last paragraph of Section 1 of Chapter 624). [Note 57] They conclude by contending that it is incorrect to view “one sentence of one section of a decades-old special act of the Legislature [as] somehow limit[ing] the Commonwealth’s use of the Stigmatine Driveway . . . .” Commonwealth’s Post-Trial Memorandum at 100, 101, 107.

The defendants’ arguments fail for several reasons. First, Section 5 is its own section, not a subsection to the affordable housing section (Section 4). It authorizes DCPO “to retain or grant rights of way on easements across property described in sections one to five, inclusive, of this act for access . . . .” Chapter 624 at 7, Section 5 (emphasis added). It then places limits on that authority by describing the Cheney Bridge entrance “as the primary access” to Elm Bank and Turtle Lane as providing “emergency access . . . .” Id.; see also Town of Dover v. Massachusetts Water Resources Authority, 414 Mass. 274 , 281 (1993) (“The Legislature enacted St. 1986, c. 624, to authorize the DCPO to develop Elm Bank for specified purposes. To serve those purposes, the statute provides for specific primary and emergency access routes.”). Section 5 thus, by its very terms, describes DCPO’s authority regarding access easements and applies to all of the uses of Elm Bank, including the transfer of property to MDC for park purposes.

This reading of the act is further supported by comparing Sections 3, 4, and 5. Section 3, governing easements and roads for a public water supply, contains very specific “terms and conditions” for the “lease or conveyance of easements” in that section. Chapter 624 at 4, Section 3. Those “terms and conditions” are contained in subsections (a) through (i). Id. at 4-6, Section 3. Similarly, Section 4, governing the development of affordable housing, contains specific “terms and conditions” for the “lease or conveyance” described in that section. Id. at 6, Section 4. The emergency access condition is in Section 5 — a separate, stand-alone section of the act. If the defendants were correct that the emergency access provision only applied to the affordable housing development, this restriction would have been contained as a subsection to Section 4, like the terms and conditions contained in Sections 3 and 4.

The fact that Section 1 of the act refers to the restrictions and easements in the Stigmatine Deed further supports this analysis. Section 1 must be read in conjunction with the entire act, including the emergency access provision in Section 5. Wolfe v. Gormally, 440 Mass. 699 , 704 (2004) (“A basic tenet of statutory construction requires that a statute be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.”); Sperounes v. Farese, 449 Mass. 800 , 804 (2007). Thus read, it shows that the legislature was fully aware that the Stigmatine Deed granted a right of way over Turtle Lane and, with that knowledge, affirmatively chose to limit the Commonwealth’s exercise of those rights to emergency access only. [Note 58] This interpretation is the only one that renders Chapter 624 “a consistent and harmonious whole.” [Note 59] Livoli v. Zoning Bd. of Appeals, 42 Mass. App. Ct. 921 , 922 (1997) (internal quotations and citations omitted).

The Commonwealth’s argument that Section 5’s direction that DCPO could “retain and grant rights of way or easements across” Elm Bank also does not change this analysis. It is undisputed that the easement in dispute in this case is not across Elm Bank. Thus, that language is simply inapplicable. More importantly, the Commonwealth does not own title to Turtle Lane or the driveway. Accordingly, it does not possess any rights to grant easements over it. Hodgkins, 323 Mass. at 172. Even if it could grant such easements, that sentence in Section 5 must be read in conjunction with the sentence immediately following and thus would limit those grants to emergency access easements as well. In addition, Section 5’s more specific reference to Turtle Lane and its restriction to emergency access would govern over the more general description of the “rights of way” in the first sentence. See Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 181 n.8 (1998) (“to the extent the deeds be deemed to contain inconsistent descriptions of the interest conveyed by virtue of those words, the issue would be resolved by reference to the accepted principle that the more certain, unequivocal and particular description must govern”).

Similarly, although the Commonwealth certainly retained the easement over Turtle Lane and the driveway pursuant to the first sentence of Section 5, the legislature has chosen to restrict use of that easement to emergency access pursuant to the second sentence. Accordingly, quite contrary to the Commonwealth’s arguments, DCPO did not have the authority to “exercise[] its discretion when the agency granted all rights in every right of way to the MDC when DCPO transferred care and custody of Elm Bank to the MDC in March 1992.” Commonwealth Post-Trial Memorandum at 117. The Legislature restricted that discretion so that DCPO only was authorized to take actions consistent with the legislature’s directive in Chapter 624. [Note 60] See G.L. c. 7, § 40F½ (“In determining reuse restrictions, the commissioner shall conform to all such restrictions pertaining to the property which may have been mandated by the general court, and may adopt additional restrictions, taking account of established state and local plans and policies.” (emphasis added)). As discussed in greater detail below, Chapter 624 only authorized DCPO to transfer the property pursuant to the terms of the act, development guidelines, and the master plan, and only with the condition that Turtle Lane be used solely for emergency access.

Second, the restriction regarding using the easement for emergency access was to be included in both “the master plan and disposition agreements.” Chapter 624 at 7, Section 5. Section 1 describes the master plan as a document that would include the following:

a property description and a site plan showing the boundary of parcels available for disposition, narrative and graphic presentation of the characteristics of the land and buildings, recommended reuses of each parcel of the Elm Bank property, and development guidelines and restrictions including, but not limited to aquifer and environmental protection, bridge repair or reconstruction, infrastructure development, design review, landscape and historic preservation, that shall be incorporated into requests for proposals and disposition agreements. An analysis of the value of the land, buildings and water resource shall be prepared as part of said master plan.

Id. at 1, Section 1 (emphasis added). Accordingly, the master plan obviously would cover not only the affordable housing parcel (the part of Elm Bank now leased by MassHort) as the defendants argue, but also Elm Bank as a whole. Id. The MDC park was contemplated as a recommended reuse of Parcel A and therefore would be included as part of the master plan.

Third, the fact that the legislature provided a specific exemption “for construction of the Framingham extension relief sewer” further supports the argument that the emergency access limitation applies to the entire Elm Bank property. Id. at 7, Section 5. If this limitation only applied to the affordable housing provision, then such an exemption would not have been necessary since the sewer extension was not part of the affordable housing project. Instead, the legislature specifically noted the single use that was exempted from the emergency access limitation — the temporary easement for constructing the sewer. Id. All other uses of Elm Bank authorized by Chapter 624, including the MDC park, could use the easement for emergency access only.

Fourth, the defendants’ argument that since a master plan was never adopted, the emergency access provision never became applicable also is plainly incorrect. [Note 61] See Planning Bd. of Springfield v. Bd. of Appeals of Springfield, 338 Mass. 160 , 163 (1958) (there is a “presumption that public officers act legally in the performance of their duties”). If the defendants were correct in that assertion, then DCPO never had the authority to transfer the property to DCR. [Note 62] This is clear from reading Sections 1, 2 and 6. Section 1 authorized DCPO “to transfer . . . ‘Elm Bank’ . . . to individuals and entities for the purposes and subject to the terms and conditions described in this act, Elm Bank development guidelines, . . . and in a ‘Master Plan’ to be prepared for the property by [DCPO].” Chapter 624 at 1, Section 1. MDC was clearly one of the entities to which land was being transferred. Section 2 of Chapter 624 notes that “[t]he precise configuration of Parcel ‘A’,” the parcel to be transferred to MDC, “shall be described in a land survey accompanying the Master Plan to be prepared for the site under the provisions of section one.” Id. at 3, Section 2 (emphasis added). Finally, Section 6 states that “[f]ollowing adoption of said Master Plan . . . , the deputy commissioner shall solicit and select development proposals and negotiate and execute land disposition instruments based on the requirements of this act and the development guidelines adopted in said Master Plan.” Id. at 6, Section 6.

Following the enactment of Chapter 624, DCPO solicited development proposals from state agencies for the reuse of Elm Bank. Trial Ex. 156. In response, MDC submitted a proposal for its proposed use of the entire property. Trial Ex. 157 (“This proposal amends our original proposal for the site dated October 4, 1984 pursuant to Chapter 624 of the Acts of 1986.”). Although it is unclear from those documents whether the master plan was adopted (and, as noted herein, DCR claims that it was not), [Note 63] MDC stated that its “Reservations and Historic Sites Division prepared the enclosed ‘Elm Bank Reservation Plan and Program’ in November, 1989, which was integrated into ‘A Master Plan/DEIR for Elm Bank’ (EOEA No. 7037) prepared for DCPO by Lane Frenchman and Associates, Inc.” Id. (emphasis added). Furthermore, that document contains a flowchart regarding the disposition of Elm Bank that indicates that DCPO would adopt a master plan prior to transferring the land to MDC. Trial Ex. 90 at I-44 (a copy of the flowchart is included in the Commonwealth’s Post-Trial Memorandum at 105). It also states that “[w]hile the park property will not officially transfer to the MDC until completion of this master plan and the final EIR, the MDC Reservation & Historic Sites Division has been actively managing the Elm Bank reservation since 1987, under an agreement with DCPO.” [Note 64] Id. at I-7 (emphasis added).

After considering MDC’s proposal, DCPO transferred Elm Bank to MDC (now DCR) pursuant to a Care and Control Agreement in 1992. That agreement noted that DCPO was “acting under the authority of . . . Chapter 624 of the Acts of 1986 . . . .” Trial Ex. 141. DCPO therefore could not validly enter into the Care and Control Agreement or transfer the property to MDC without first creating the master plan. [Note 65] Presumably (although I do not decide this issue), if the defendants’ arguments were to prevail, MDC would simply remain as the managing entity of Elm Bank and DCPO would still retain control over the property. See Trial Ex. 90 at I-7.

Fifth, a document identified as the master plan and drafted by the Commonwealth indicates that the Commonwealth itself previously believed that Chapter 624 restricted Turtle Lane to emergency access only. Specifically, consistent with Chapter 624, the master plan [Note 66] explored three “access options,” all of which identified Turtle Lane as providing only “emergency access.” Trial Ex. 90 at I-6 (outlining the three options), I-17 (“Option 1 (primary access via Washington Street with emergency access via Turtle Lane) would be used because it is mandated by the legislation,” emphasis added), I-21 (“As mandated by the authorizing legislation, the preferred approach to offsite access is Access Option 1 (Primary access only from Washington Street with emergency access via Turtle Lane) . . . If Chapter 624 were to be amended, the Chapter 624A Plan would utilize Access Option 3.” As noted on page I-6, Access Option 3 involved “primary housing access from Buttercup Lane in Dover and secondary access via Washington Street in Wellesley, park and soccer access via Washington Street in Wellesley, and emergency access via Turtle Lane.”), I-47 (“Cheney Bridge is currently the only legislatively authorized access to the Elm Bank site for the implementation of the redevelopment projects”). Other uses, including the park, soccer, and housing, would access Elm Bank from either Washington Street or (potentially) from Buttercup Lane (housing only). Id. at I-6. Thus, the master plan reflected the Commonwealth’s belief and recognition at the time of the document that Chapter 624 required Turtle Lane be used for emergency access only. It thus significantly undermines the Commonwealth’s current, inconsistent position taken for purposes of litigating this case.

Sixth, the Commonwealth’s argument (premised on its contention that the master plan was never adopted) that DCR obtained Elm Bank and the right to use the easement to access the property without Chapter 624, Section 5’s restrictions due to the failure of the Care and Control Agreement to include the emergency access provision fails as well. Although the Commonwealth is correct that the Care and Control Agreement did not explicitly restrict Turtle Lane to emergency access and, instead, only referred to the easement in the Stigmatine Deed, DCPO could only act as authorized by Chapter 624. Moreover, the Commonwealth ignores the fact that the Care and Control Agreement specifically notes that DCPO was transferring Elm Bank pursuant to Chapter 624. Such a reference therefore incorporates all of the provisions of Chapter 624, including the limitation on using Turtle Lane for emergency access only. [Note 67]

Seventh and finally, even if the master plan was never adopted, the Commonwealth’s Elm Bank Development Guidelines also state that “Turtle Lane, a private way, and a private driveway should be used for emergency access only.” Trial Ex. 123. As noted above, Chapter 624 specifically authorized DCPO to transfer Elm Bank “subject to the terms and conditions described in . . . [the] Elm Bank development guidelines . . . .” Chapter 624 at 1, § 1. Accordingly, DCPO’s transfer of Elm Bank to MDC was subject to the emergency access provision regardless of whether the master plan was approved and regardless of whether Section 5 of Chapter 624 applied to the entire Elm Bank property.

Accordingly, the defendants can only use the easement for emergency access. I agree with the Commonwealth that it has a degree of discretion to decide what constitutes an emergency and that such interpretation is entitled to an appropriate measure of deference. However, as acknowledged by the Commonwealth, any such determinations must be reasonable. [Note 68] To be clear, contrary to the Commonwealth’s argument, it is not reasonable for the Commonwealth “to continue this discretionary policy of limiting access over the Stigmatine Driveway to those vehicles the DCR believes cannot use the Cheney Bridge [e.g., vehicles weighing over twelve tons].” Commonwealth’s Post-Trial Memorandum at 124 (emphasis in original). As discussed in note 58, supra, no reasonable definition of emergency access includes daily (or weekly) general traffic. Thus, pursuant to the directives in Chapter 624, heavy vehicles are not permitted to use the easement to access Elm Bank except during true emergencies.

I also agree with the defendants that bridge closures must have been contemplated as an emergency when the legislature enacted Chapter 624 and that general use of the easement by DCR, MassHort and the public during such emergencies is reasonable. [Note 69] Although such use is reasonable, the defendants cannot schedule large events that will attract hundreds of people during such closures. This includes soccer games and tournaments. [Note 70] Since the bridge closures are generally scheduled in advance, it is reasonable to schedule them during times when such large events are not being held. If that is not possible, then large events must be cancelled for the duration of the bridge closure. This is so because, as discussed above, allowing a constant stream of traffic over the easement is an unreasonable interference with the plaintiffs’ enjoyment of their properties that rises to the level of a nuisance.

Finally, I note that contrary to the defendants’ argument, Chapter 105 of the Acts of 1995 and the subsequent Lease Agreement between DCR and MassHort did not eliminate the emergency access requirement for the easement. As noted above, Chapter 105 does not mention access at all. Although Chapter 105 authorized the Commonwealth to lease a portion of Elm Bank to MassHort, the statement that it was enacted “notwithstanding any general or special law to the contrary” does not, as the defendants argue, suggest that the legislature intended it to supercede Chapter 624 in its entirety. To the contrary, the Commonwealth could lease a portion of Elm Bank to MassHort pursuant to Chapter 105 while still complying with Chapter 624’s emergency access requirement. Despite the defendants’ arguments that access over the easement was a critical issue that held up the passage of Chapter 105, the legislature remained silent on this issue in the act and, instead, relied on the catchall phrase, “notwithstanding any general or special law to the contrary.” [Note 71] This silence is telling. Accordingly, the emergency access provision in Chapter 624 still governs. [Note 72] See Sperounes, 449 Mass. at 804 (“Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.”).

Likewise, the access provision contained in the MassHort lease does not conflict with the emergency access requirement. The lease simply allows MassHort to use Cheney Drive, Turtle Lane, and “any other point of legal access” [Note 73] “for all lawful and necessary purposes . . . .” [Note 74] Lease Agreement at 13 (emphasis added). It also specifically states that “[t]his Lease shall be governed by the laws of the Commonwealth of Massachusetts, and the provisions of such laws shall not be deemed waived by any provision of this Lease.” [Note 75] Id. at 18. Thus, the lease itself recognizes that there are certain laws that control over the terms of the lease and the lease does not (and, indeed, cannot) waive those laws. Chapter 624 obviously is a law of the Commonwealth, it was not superceded by Chapter 105, and it was not waived by the lease. Accordingly, consistent with Chapter 624, the lease allows MassHort to use the easement for the only currently lawfully permissible use: emergency access. This restriction does not, as MassHort contends, make use of the leased premises impossible. As noted in Chapter 105 and the lease, MassHort can access the property via Cheney Bridge and can thus still use the property for all of the uses permitted in the Lease Agreement. [Note 76] To be clear, nothing in this Decision restricts any of the previous or future uses of Elm Bank. It merely limits the use of the easement to access Elm Bank for certain uses. [Note 77]

Although I find that Chapter 624 currently limits the use of the Commonwealth’s easement to emergency access, I do not find that the act resulted in the abandonment of the easement, as the Commonwealth argues is a necessary though impermissible conclusion stemming from my interpretation of Chapter 624. The Commonwealth is correct that “to establish abandonment of [express] easements [] there must be acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.” Commonwealth’s Post-Trial Memorandum at 111 (quoting Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 390 (1992)). Here, use of the easement for emergency access is certainly not inconsistent with the right of way granted in the Stigmatine Deed. The easement will still be used to access the property. The fact that it cannot currently be used for anything other than emergency access will not itself extinguish it. See Delconte v. Salloum, 336 Mass. 184 , 188 (1957) (“Nonuse does not of itself produce an abandonment no matter how long continued.”). Furthermore, in enacting Chapter 624, the legislature specifically referred to the easements and right of ways in the Stigmatine Deed. Such a reference clearly shows that the Commonwealth (as the owner of the dominant estate) did not intend to extinguish such easements. Rather, for whatever reason (perhaps as a compromise to the numerous constituents weighing in on the use of Elm Bank), the legislature chose to limit its exercise of its rights to the Turtle Lane and driveway easement for emergency purposes only. Since the passage of Chapter 624 was not “inconsistent with [the easement’s] further existence,” the legislature is free to repeal the restriction if it deems appropriate. At such time, the Commonwealth’s rights to use the easement will be governed by the terms of the language in the Stigmatine Deed, as interpreted above. [Note 78]

Conclusion

For the foregoing reasons, I find and rule that the Commonwealth currently can use the easement at issue in this case for emergency access only. Accordingly, the defendants are hereby ENJOINED from using the easement for any use other than true emergencies unless and until the legislature amends or repeals Chapter 624. As noted herein, the closure of Cheney Bridge for necessary repairs constitutes an emergency. However, during such bridge closures, the defendants shall not schedule large events such as soccer tournaments and are thus hereby ENJOINED from doing so.

I also find and rule that if the legislature repeals the emergency access provision in Chapter 624, the defendants’ rights to use the easement are governed by the analysis in this Decision regarding the grant of the easement in the Stigmatine Deed (those that are reasonable in light of the circumstances surrounding such grant). As explained in greater detail herein, the defendants may use the easement to access Elm Bank for park purposes, educational programs, and recreational events. Such access not only includes vehicular traffic (including heavy vehicles), but also pedestrian and bicycle traffic so long as all traffic can stay within the confines of the fifteen-foot-wide easement and so long as it does not rise to the level of a nuisance. Such traffic may occur during the day, at night, and early in the morning. It is not reasonable and thus not permissible, however, for the defendants to use the easement to access Elm Bank for commercial activities (e.g., circuses, movie productions, wedding receptions, business conferences, or events of a similar nature) and they are thus hereby ENJOINED from doing so. Finally, it is not permissible for the plaintiffs to interfere with the defendants’ easement rights and, accordingly, the plaintiffs are hereby ENJOINED from placing any obstacles (such as boulders and logs) within the fifteen-foot-wide easement and from preventing the defendants from improving their easement. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 2 December 2009