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 propertys 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 Commonwealths 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 grantors 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 MassHorts 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 Schools track meets, (4) Allen Bush, Jrs 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 ODay, Mark ODay (Miriams son), and Alan Bush, Jr. [Note 23] Miriam and Mark ODay both testified that there was minimal traffic over the easement in the 1950s. [Note 24] Indeed, Ms. ODay 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 ODay 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. ODay 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 schools 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 schools 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 Commonwealths 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 MassHorts 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. ODay 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. ODay 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. Rendells testimony was consistent with Mr. Cahans (noting that there was a significant increase in traffic in the last five years or so (early 2000s)), Dr. Tsens (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. ODay testified that there was an enormous amount of traffic . . . I dont think there was a ten-minute period during the day that something wasnt coming or going. Id. at 235. Indeed, Ms. ODay 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. ODay 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 Dovers 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. ODay 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. ODay 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.
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 Natl 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 propertys 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 statutes 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. Commonwealths 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 Commonwealths use of the Stigmatine Driveway . . . . Commonwealths 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 DCPOs 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 Commonwealths 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 Commonwealths argument that Section 5s 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 5s 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 Commonwealths 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 legislatures 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 Commonwealths 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 MDCs 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 Commonwealths 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 Commonwealths current, inconsistent position taken for purposes of litigating this case.
Sixth, the Commonwealths 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 5s 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 Commonwealths 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, DCPOs 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 Commonwealths 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]. Commonwealths 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 624s 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 Commonwealths 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. Commonwealths 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 easements] further existence, the legislature is free to repeal the restriction if it deems appropriate. At such time, the Commonwealths rights to use the easement will be governed by the terms of the language in the Stigmatine Deed, as interpreted above. [Note 78]
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.
Keith C. Long, Justice
Dated: 2 December 2009
[Note 1] Cheney Bridge and the corridor of land to its west (leading to Route 16) are part of Elm Bank. See Ex. B.
[Note 2] Defendant MassHort is a not-for-profit corporation that was founded in 1829. It claims to be the oldest, formally organized horticultural institution in the United States and is dedicated to encouraging the science and practice of horticulture and developing the publics enjoyment, appreciation, and understanding of plants and the environment. Revised Joint Fact Stipulation at 21, ¶¶ 128-29. Pursuant to a 1996 lease with defendant DCRs predecessor (the Metropolitan District Commission), MassHort uses approximately thirty-six acres of Elm Bank for its headquarters, operations and events.
[Note 3] Plaintiffs Kenneth Rendell and Shirley McNerney are husband and wife and own and reside at 1 Turtle Lane. Their property consists of Lot C1 on Land Court Plan 20044B and Lot C3 on Land Court Plan 20044C. Plaintiff Robert Goren, as trustee of the Riverway Realty Trust, owns 5 Turtle Lane, which is shown as Lot C4 on Land Court Plan 20044F. Plaintiffs Salwa Fam and David H. Cahan reside at 3 Turtle Lane, which is Lot C2 on Land Court Plan 20044E and Lot C13 on Land Court Plan 20044J. Plaintiff Miriam W. ODay, as trustee of the ODay Family Trust, owns and resides at 6 Turtle Lane. Id. at 18, ¶¶ 102-07 (As far as I can tell, the record indicates that Lawrence C. Zalcman is the trustee of the ODay Family Trust. See Trial Ex. 190. However, the parties have stipulated that Ms. ODay is the trustee and I accept that fact as true for the purposes of this Decision.). That property consists of Lot C12 on Land Court Plan 20044H, Lot C14 on Land Court Plan 20044J, and Lot 9 on Land Court Plan 20044N. Plaintiffs George and Benae Potter Hricko reside at 7 Turtle Lane, which is shown as Lot C5 on Land Court Plan 20044G. Plaintiff Mary Lee Fleischmann resides at 8 Turtle Lane, which is shown as Lot C10 on Land Court Plan 20044J. Plaintiffs Robert and Sylvia Purdy reside at 9 Turtle Lane, which is shown as Lot C6 on Land Court Plan 20044J. Plaintiffs Lawrence and Paulita Tsen reside at 10 Turtle Lane, which is shown as Lot C9 on Land Court Plan 20044J. Plaintiffs Suzanne McCarthy and Robert Lobel reside at 11 Turtle Lane, which is shown as Lot C7 on Land Court Plan 20044J. Plaintiffs Harriet and Stanley Berman own 12 Turtle Lane, which is shown as Lot C8 on Land Court Plan 20044J. See Exhibit B for a depiction of all of these lots.
[Note 4] Several of the defendants other claims can be dealt with here at the outset.
First, the Commonwealths contention that the plaintiffs entire case is barred by the doctrine of sovereign immunity has no merit. The Commonwealth is being sued in its capacity as the holder of a private easement on registered land (acquired by deed, not by taking) and because its use of that easement allegedly is overly intensive, which is judged based upon a nuisance standard. See Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 319 n.12 (2005). The doctrine of sovereign immunity does not apply to such cases. G.L. c. 185, § 45 (land court judgments regarding registered land conclusive upon and against all persons, including the commonwealth); First Natl Bank of Woburn v. Woburn, 192 Mass. 220 , 221-222 (1906) (land court has jurisdiction and power to determine public and other rights on registered land, including those regarding easements); Tetrault v. Bruscoe, 398 Mass. 454 , 460 (1986) (any attack on the integrity of a judgment of registration may only be asserted in the Land Court, the forum from which the challenged judgment issued); Triangle Center, Inc. v. Dept. of Public Works, 386 Mass. 858 , 863 (1982) (The Commonwealth may be held liable in tort for uses of its land that constitute a private nuisance.) (citing Morash & Sons v. Commonwealth, 363 Mass. 612 (1973)); H. Sacks & Sons v. Metropolitan District Commn, 20 Mass. App. Ct. 45 , 46-48 (1985) (In [Morash & Sons] the court ruled that the municipalities of Massachusetts are liable for private nuisances and there is no logical reason why the Commonwealth should not be similarly liable. . . . The right of a private person to bring an action for an injury caused by a private nuisance is broad and apparently without limitation. . . . Therefore, we hold that prior to the enactment of G.L. c. 258 an action could be brought against the Commonwealth by a tenant for damages to his personal property caused by a private nuisance allegedly created or maintained by the Commonwealth.) (To clarify this parenthetical, I note that G.L. c. 258 did not change this fact private nuisances are not subject to the Massachusetts Tort Claim Act. Murphy v. Town of Chatham, 41 Mass. App. Ct. 821 , 825 (1996)).
Second, in a similar argument, the Commonwealth asserts that the plaintiffs claim for a declaratory judgment pursuant to G.L. c. 231A must be dismissed because the Commonwealth is immune from such claims. Citing to Executive Air Service, Inc. v. Division of Fisheries & Game, 342 Mass. 356 (1961), the Commonwealth argues that the doctrine of sovereign immunity prevents declaratory judgments from issuing unless it consents to such suits. However, that case simply notes that G.L. c. 231A relates to procedure and does not deal with jurisdiction. Executive Air Service, Inc., 342 Mass. at 357-58. The declaratory judgment in that case dealt with the validity of the Commonwealths deeds and the certificates of title. Id. at 357. The court determined that G.L. c. 231A did not provide jurisdiction to challenge the Commonwealths title to the land. Id. at 358. Here, however, the plaintiffs are not challenging the Commonwealths title to Elm Bank or the existence of its easement rights. Rather, as discussed above, the plaintiffs are asserting that the Commonwealth has used the easement in a manner that exceeds its rights an overburdening of the easement that constitutes a private nuisance. In addition, I note that the Commonwealth also seeks a declaration that the Commonwealth has an express easement for all usual purposes, including but not limited to the use of motor vehicles of every type, over the Stigmatine Driveway as shown on Land Court Plan no. 20044A. Commonwealths Post-Trial Memorandum at 150. While I need not decide whether such a request would be sufficient to waive its claims to sovereign immunity, it is interesting to note nonetheless. In any event, as noted above, this court has the power and jurisdiction (indeed, the exclusive power and jurisdiction) to hear and determine the claims at issue in this case because they involve the extent of rights to registered land. G.L. c. 185, § 45; Levenson v. Ciampa, 251 Mass. 379 , 382 (1925) (land court has jurisdiction not only to register the title, but also to determine the extent of the easement claimed by the petitioner); and cases cited, supra.
Third and finally, the defendants contention that this lawsuit is barred by the doctrines of issue and claim preclusion also is incorrect. The previous lawsuits (in the Superior Court) involving the easement, ODay v. Trustees of the Stigmatine Fathers, Inc. and Stapleton v. Trustees of the Stigmatine Fathers, Inc., only litigated the existence of the easement. The Superior Court found that the Trustees of the Stigmatine Fathers, Inc., owns a right of way 15 feet in width for all usual purposes over the existing driveway extending from a point on the northerly side of Dover Street opposite the intersection of said Dover Street and Main Street to the intersection of the driveway (constituting the southerly boundary of land of the Stigmatine Fathers, Inc.) with said driveway from Dover Street and the exact location is shown on plan recorded with the Land Registry District for Norfolk County and numbered 20044H. Ex. 153 (Final Decree (Sept. 4, 1958)). The court further ordered that the Trustees and their business and social invitees shall not operate any motor vehicle on said right of way at a speed in excess of 20 miles per hour and stated that the Stigmatines shall construct and maintain at its own expense in that section of the right of way contiguous to the property of the petitioner, Miriam W. ODay four (4) speed traps three (3) inches high and forty-one (41) inches long with a gradual ramp on each side of each trap. Id. Although Ms. ODay and Mr. Stapleton (the predecessor of plaintiff Mary Lee Fleischmann) were parties to the previous cases and are parties here, the issues are different. Here, the plaintiffs argue that the defendants use of the right of way constitutes an overburdening of the easement. In addition, the plaintiffs argue that the legislature narrowed the rights of the defendants to use such easement. Accordingly, the issues in this case are quite different from the prior cases and do not bar this action. Heacock v. Heacock, 402 Mass. 21 , 24, 25 (1988) (doctrine of claim preclusion applies only where both actions were based on the same claim; issue preclusion applies only when the issue of fact sought to be foreclosed actually was litigated and determined in a prior action between the parties or their privies, and . . . the determination was essential to the decision in the prior action); see also Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 456-58 (2006).
[Note 5] The scope of such reasonable use is discussed in greater detail below.
[Note 6] Based upon the rulings in this Decision, it is no longer necessary to reach the defendants motions for directed verdict.
I also find and rule that the defendants are correct that the plaintiffs mandamus claim (pled in the alternative) must be DISMISSED. [R]elief in the nature of mandamus is extraordinary and may not be granted except to prevent a failure of justice in instances where there is no other adequate remedy. Lutheran Service Assoc. of New England, Inc. v. Metropolitan District Commission, 397 Mass. 341 , 344 (1986). Here, the plaintiffs have other remedies available to them, which they have pled (e.g., a declaratory judgment regarding their claim that the defendants have overburdened the easement and their trespass claim). In addition, the writ of mandamus is sought against Stephen Burrington (initially, it was sought against Stephen Pritchard, but Mr. Pritchard was no longer Commissioner and Mr. Burrington was substituted (Dec. 8, 2006)). After trial, but before post-trial briefs were submitted, Mr. Burrington no longer was the Commissioner of DCR. Since [t]he office of the writ of mandamus is to compel the performance of some duty[,] . . . [t]he duty can exist ordinary only so long as the person holds the office. Knights v. Burrell, 236 Mass. 336 , 337-38 (1920). Although the plaintiffs third complaint sought the writ of mandamus against DCR, [t]he writ of mandamus is not directed to an office, but to the person holding the office. Id. at 338. Furthermore, although the plaintiffs third complaint also sought the writ against Mr. Burringtons successor, the writ cannot be directed to his successor in office, because he is not a party to the proceeding, and he has had no opportunity to be heard. Id. Accordingly, the mandamus count is dismissed. The defendants also claim that the plaintiffs failed to serve any of the commissioners (including Mr. Pritchard and Burrington) while they were in office and further claim that the plaintiffs seek a writ regarding discretionary matters. Due to the dismissal of the count for other reasons, however, I neither reach nor decide these issues.
In addition, I find and rule that the plaintiffs trespass claim must be dismissed. However, I disagree with the Commonwealths initial premise that it cannot be liable for trespass committed by the public. While it is correct that the Commonwealth would not be liable for damages (liable at law), the very case the Commonwealth cites indicates that a government entity can be liable in equity. Hennessy v. City of Boston, 265 Mass. 559 , 561 (1929) (In the case of the direct invasion of the property the court had jurisdiction to enjoin the continuance of the trespasses, and to abate the nuisance when the acts in themselves were invasions of the plaintiffs property.). I nonetheless agree with the defendants that the trespass claim must be dismissed for several reasons. First, the plaintiffs did not brief the issue of trespass in either their post-trial or rebuttal briefs after trial ended. I therefore take this as a waiver of the claim. Second, to the extent that their trespass claim involved their allegations that the defendants have overburdened the easement (which, as noted herein, is determined under theories of nuisance rather than trespass), such a claim is subsumed in their requests for declaratory judgment and injunctive relief. Third, to the extent that the trespass claim is its own claim, the defendants have a deeded easement and thus cannot be found to have trespassed on it. See Anderson v. Healy, 36 Mass. App. Ct. 131 , 134 (1994) (Use of the easement by the defendants to get to their parcel does not constitute trespass.). Fourth and finally, to the extent that members of the public have, on unspecified occasions, driven or parked on the eastern leg of Turtle Lane (which might constitute trespass given the fact that the defendants have no deeded easement right to use that portion of Turtle Lane) or have driven or parked on the plaintiffs properties outside of the easement boundaries, the plaintiffs have failed to prove that the Commonwealth or MassHort directed such vehicles and activities. The evidence only shows that the Commonwealth and/or MassHort directed the public over the portions of Turtle Lane and the driveway for which it has a deeded right of way. Accordingly, the plaintiffs trespass claim is hereby DISMISSED.
[Note 7] Many of the following facts were stipulated to by the parties. Revised Joint Fact Stipulation (Jan. 10, 2007).
[Note 8] The other issue is the applicability of Chapter 624.
[Note 9] The scale for Land Court Plan 20044A (Ex. A) indicates that the easement right of way is approximately ten feet wide. The subdivision plan submitted by Dartmouth to the Land Court at the time of registration (the plan from which Land Court Plan 20044A was derived) likewise depicts the easement right of way as approximately ten feet wide and shows two stone posts at the right of ways end at Dover Street (marking the two sides of the easement) approximately twelve to fourteen feet apart. Subdivision of Land in Natick and Dover, Massachusetts to be Conveyed by Dartmouth College, Rowland H. Barnes & Co. Civil Engrs (Jun. 1946) (in the engineering file at the Land Court). Since the Stigmatines (as abutters) would have been notified of the registration proceedings and would have been required to raise objections to the depicted width of the right of way in those proceedings, the Commonwealth (as successors in title to the Stigmatines) are thus bound by such determinations regarding the width of the easement right of way.
The Final Decree in Stapleton v. Trustees of the Stigmatines Fathers, Inc. and ODay v. Trustees of the Stigmatine Fathers, Inc. (Norfolk Superior Court Case Nos. 63179 and 63180) (Sept. 4, 1958) (Trial Ex. 153) similarly held that the portion of the easement from Turtle Lane to the boundary with Elm Bank (the driveway section of the easement shown on Exs. B and C) was fifteen feet wide and in the location shown on Land Court Plan 20044H (Ex. C). Since that Final Decree was binding on the Stigmatines, it also binds the Commonwealth as successors in title to the Stigmatines.
[Note 10] See Subdivision Plan of Land in Dover, Land Court Plan 20044B (Dec. 28, 1949) (depicting way that became Turtle Lane as forty feet wide); Subdivision Plan of Land in Dover, Land Court Plan 20044C (March 29, 1950) (same); Subdivision Plan of Land in Dover, Land Court Plan 20044E (Aug. 14, 1950) (same); Subdivision Plan of Land in Dover, Land Court Plan 20044F (Sept. 16, 1950 and Feb. 7, 1951) (same); Subdivision Plan of Land in Dover, Land Court Plan 20044G (Nov. 6, 1950 and Feb. 7, 1951) (same); Subdivision Plan of Land in Dover, Land Court Plan 20044H (Nov. 3, 1950, Feb. 7, 1951, and Jan. 29, 1952) (one way is identified as forty feet wide and the other portion (running from the forty foot wide way (Turtle Lane) to the Stigmatine property) is identified as fifteen feet wide); Subdivision Plan of Land in Dover, Land Court Plan 20044J, Sheet 1 (Feb. 7, 1951 and Jan 29, 1952) (way identified as forty feet wide); Subdivision Plan of Land in Dover, Land Court Plan 20044J, Sheet 2 (Feb. 7, 1951 and Jan 29, 1952) (same).
[Note 11] The right of way for Turtle Lane is forty feet wide. The width of this right of way benefits the residential lots and does not change the dimensions of Elm Banks easement (fifteen feet).
[Note 12] The parties stipulated that Turtle Lane is thirteen feet wide. Revised Joint Fact Stipulation at 9, ¶ 42 (Jan. 10, 2007). However, there was testimony at trial (Frank DeFalco, a civil engineer) that suggests that Turtle Lane is fifteen feet wide in some locations. This discrepancy is not material to this Decision.
[Note 13] As noted earlier, the length of the Stigmatine Driveway went from the area near the mansion on Elm Bank to Dover Street. However, the portion on the Turtle Lane side (the easement) is what is at dispute in this case and is the section depicted on the Land Court plans. Most references in this Decision will be to the sections located on the Turtle Lane subdivision side. For clarity, I will specifically make a note when referring to the portion of the Stigmatine Driveway exclusively located on Elm Bank (versus references to the entire length of the Stigmatine Driveway, the easement, or Turtle Lane). Like the parties, I also refer to the unpaved portion of the easement as the driveway.
[Note 14] In 1981, the Board of Regents for Higher Education replaced the State College Board of Trustees as the owner of Elm Bank. Trial Ex. 42 at 12.
[Note 15] Presumably, the remaining approximately seven acres of land is the portion of Elm Bank on the other side of the Charles River.
[Note 16] Massachusetts Department of Public Works reports indicated that this limit was posted. Revised Joint Fact Stipulation at 34, ¶¶ 180-82; 35, ¶ 183. It is unclear exactly when this weight limit was determined (again, I presume it was after the school made the repairs) and when the limit was posted.
[Note 17] By agreement of the parties, the testimony of Witnesses X and Y was presented by written, joint stipulations. These witnesses were anonymous because the court was acquainted with one of them from his previous legal practice. The anonymous designations of both witnesses satisfactorily (to the parties and the court) removed any issue of a potential conflict. The court had no prior knowledge of any witnesses (these or others) experiences related to Elm Bank.
[Note 18] Presumably, Turtle Lane as described by the witness is the same stretch of road as the easement (i.e., both Turtle Lane and the driveway).
[Note 19] During those six years, the Stigmatines alternated between hosting the carnival and horse shows, for a total of six public fundraising events between 1947 and 1952.
[Note 20] Witness X also testified that the Wellesley High School class of 1956 held its reunion at Elm Bank in 1981, which was attended by approximately 150 people. It is unclear how Witness X knows this information since he was not then living at Elm Bank. Since this information was agreed to by the parties, I accept it as true. However, it is also unclear how these people accessed Elm Bank and therefore, this fact is not necessarily persuasive evidence one way or another for the issues in the case.
[Note 21] See n. 17, supra.
[Note 22] See n. 18, supra.
[Note 23] Mr. Bush maintains an excavation and snowplowing business at Elm Bank. Since 1968, he has stored his truck and other vehicles in a garage there.
[Note 24] I note, however, that Ms. ODay previously contended that the Stigmatine Driveway was used daily in 1955 and 1956 by the Stigmatines and their invitees, including trucks and other motor vehicles used by tradesmen, milkmen, visitors and other persons having business with the respondent Stigmatine Fathers . . . . Trial Ex. 203 at 4 (Bill of Complaint in ODay v. Trustees of the Stigmatine Fathers, Inc.). Such traffic also included, Ms. ODay alleged, construction vehicles for work being done on Elm Bank by the Stigmatines in 1957. Id. at 5. In light of the other evidence and live testimony in this case, I do not believe Ms. ODays previous, inconsistent statements that the easement was used daily.
[Note 25] Mr. Chouinard testified that the number of students fluctuated over the years the school was in operation.
[Note 26] The six buses entered and exited in the morning, around noon, and in the afternoon. The school used a communication system to ensure that such traffic only flowed in one direction due to the condition of the easement.
[Note 27] This testimony was consistent with Mr. Hollenbecks testimony. Mr. Hollenbeck, a DCR employee who later managed Elm Bank, testified that to his knowledge, in 1986, no buses used Turtle Lane to access Elm Bank.
[Note 28] Apparently, however, DCPO did not fully assume care and control over Elm Bank until January 4, 1988. Ex. 88 (letter from E. Edward Rossi, Director of Bd. of Regents of Higher Education to Thomas Piper, Directors of DCPO (Jan. 4, 1988) stating, Confirming prior agreement, as of todays date DCPO is in full control of [Elm Bank], and the Board of Regents is no longer responsible for any security, maintenance, repairs, or expenses.). This discrepancy is not material to this Decision.
[Note 29] See Trial Ex. 42 (admitted for primary facts, which states that MDC began managing Elm Bank in 1984); but see Memorandum of Agreement between DCPO and MDC (Jan. 1, 1988) (filed with the court on May 2, 2005, not part of the trial record). The discrepancy regarding the date when MDC first began managing Elm Bank is not material to this Decision.
[Note 30] Other uses during this time period, not central to the issues in this case, included the following. Pursuant to Chapter 624, the towns of Natick, Wellesley, Dover and Needham entered into an agreement to develop a water supply in Elm Bank. In 1989, pump tests were conducted at Elm bank to determine Elm Banks viability to provide water. In 1992, DCPO granted Natick an easement over Elm Bank for water supply development and Natick installed water supply wells. As part of this project, a culvert under Turtle Lane was replaced and a water main was constructed under Turtle Lane. After the main was completed, Natick paved Turtle Lane.
Also during this time period, the Massachusetts Water Resources Authority (MWRA) completed the Framingham Extension Relief Sewer Project. The project included installing pipes across a portion of Elm Bank. Originally, Turtle Lane was rejected as an access route by the MWRA on environmental grounds. Trial Ex. 81. However, the MWRA later recorded an Order of Taking, which provided a five-year easement over the Rendell, Hrisko, ODay and Copeland properties. Trial Exs. 85, 128. After construction, the MWRA paved a portion of Turtle Lane.
[Note 31] As discussed below, after Cheney Bridge reopened in July 2005, the gate on the driveway at the Elm Bank property line has been locked.
[Note 32] Either lock can open the gate one enables the gate to open by releasing the latch upward and the other enables the gate to open by releasing the latch downward. It is not necessary to have both the combination and a key to open the gate.
[Note 33] There was testimony that, after the bridge reopened and the gate was locked, some people did not realize they could no longer access Elm Bank via Turtle Lane and they would either park at the gate and walk to Elm Bank or turn around once they realized the gate was locked.
[Note 34] The defendants contend that the plaintiffs failed to prove that these were Commonwealth and/or MassHort vehicles. They likewise argue that the plaintiffs also failed to prove that the Commonwealth and/or MassHort invited these vehicles to use the easement. Such arguments are contrary to the extensive testimony and documentary evidence. While the trucks may not have been owned by MassHort or the Commonwealth, they certainly were coming or going to Elm Bank at MassHorts or the Commonwealths invitation. In addition, Mr. Herrera-Mischler testified that MassHort directs heavy vehicles to use the easement. While a small number of the vehicles depicted in the photographs or testified to may have gone to Turtle Lane properties, the vast majority of the vehicles clearly went to Elm Bank. Indeed, Ms. ODay and Ms. Krock testified that they often followed the vehicles and thus had direct, personal knowledge that these vehicles were going to or leaving Elm Bank.
[Note 35] It is unclear when such traffic began. Testimony suggests that it has occurred at least since 2004. Trial Ex. 52. Accordingly, much of this discussion likely applies to the previous section as well.
[Note 36] I note this because the defendants briefs seem to suggest that the plaintiffs have failed to prove that the defendants cannot use the easement in whatever manner they see fit.
[Note 37] Contrary to MassHorts argument, the attendant circumstances surrounding the grant do not include uses of the way from 1976 to 1987. Beyond the fact that such time period is too remote in time from the grant of the easement, as noted above, the Commonwealth purchased the property in 1976. Accordingly, its use of the way would not indicate the intent of the parties to the deed.
[Note 38] Indeed, as noted above, the driveway portion of the easement has been adjudicated to be fifteen feet wide. See n. 8, supra. Although evidence at trial indicated that Turtle Lane also is thirteen to fifteen feet wide on the ground, Land Court plans indicate that the plaintiffs right of way for Turtle Lane is forty feet wide. Such plans do not determine the width of the defendants easement over Turtle Lane (granted prior to those plans, see Land Court Plan 20044A (Ex. A)), which is the same width as the driveway section shown on Land Court Plan 20044H (fifteen feet). See Ex. C.
[Note 39] It is unclear whether the Stigmatine Driveway was used at all by Dartmouth prior to the conveyance to the Stigmatines. Given Dartmouths physical distance from the property, the relatively small size of the retained land (making it of limited use, if any, to the college itself), and the fact that the retained land was registered, subdivided, and sold in a relatively short period of time after Elm Bank was sold to the Stigmatines, it is likely that Dartmouth had such subdivision and sale in mind at the time of the Stigmatine Deed. Therefore, Dartmouths sole use of the retained land likely was to prepare it for sale.
[Note 40] Dartmouth completed the registration process by August 1946. See Ex. A. Shortly thereafter, Dartmouth sold Lot C to developers Charles and Muriel Copeland who subdivided it into several residential lots. See Ex. B.
[Note 41] As noted above, testimony revealed that Cheney Bridges need for periodic maintenance and repair was always known.
[Note 42] See the facts section, supra, for greater detail regarding such uses.
[Note 43] Use of the easement by heavy vehicles, including the large trailers shown in the photographs admitted into evidence at trial, is reasonable so long as they can stay within the limits of the fifteen-foot-wide easement area and subject to the limitations set forth below. Swenson, 306 Mass. at 587 (It cannot be assumed that reasonable regard to the comfort and enjoyment of the owner of the servient estate and the securing of his peace and the value of his property are necessarily and forever inconsistent with any use whatsoever of motor trucks under any conceivable conditions of speed, weight, frequency, and of the future surface of the way itself. . . . We should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle, could not be employed at all for the means of transportation in common use by a succeeding generation. (citations omitted)). Furthermore, although the plaintiffs submitted evidence that these heavy vehicles are damaging the road itself, the plaintiffs have also unreasonably refused to allow the defendants to improve the easement in order to accommodate such vehicles.
[Note 44] A limitation on the hours would not be reasonable given the use of Elm Bank for residential, educational and religious purposes at the time the Stigmatines owned the property. Certainly, residential properties receive deliveries early in the morning and property owners access their property late at night. Although the plaintiffs contend that the nighttime traffic is disruptive of their peace, there is nothing in the record that demonstrates that nighttime use of the easement has been or would be so substantial as to be unreasonable or to amount to a nuisance so long as such traffic stays within the width of the easement and (as described more fully below) is reasonable in type and volume. Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504-05 (1986) (internal quotations and citations omitted).
[Note 45] Moreover, the fact that Elm Bank was used for residential purposes does not, per se, preclude the use of the easement by trucks and other large vehicles (as the plaintiffs have argued). Such vehicles regularly use residential roads to make deliveries, do repair or construction work, or transport household items when the residents move.
[Note 46] I stress that this Decision does not determine what uses can be made of Elm Bank. Rather, this discussion is simply to determine how the Commonwealth, MassHort, and their invitees can use the easement to access Elm Bank for certain uses.
[Note 47] Elm Bank was placed on the National Register of Historic Places in 1987.
[Note 48] The fact that the Stigmatines hosted one circus does not change this analysis. First, there was no evidence to show that attendees used the easement to access the property. Second, it is unclear when this event was held (there is some suggestion that it was held later in the Stigmatine ownership (since it was part of Witness Ys testimony) and it was thus remote in time from the time of the grant). Third, the circus was a one-time event that was not consistent with the regular uses of the property during the Stigmatine ownership. Likewise, the fact that a movie was filmed at Elm Bank during the Commonwealths early ownership (during the time the Quinobin School was at the property) is irrelevant to the attendant circumstances of the grant of the easement. The Commonwealth certainly was not a party to the grant of the easement and the movie production was remote in time from such grant. Furthermore, there was no testimony regarding whether members of the film crew used the easement.
[Note 49] Such rights still exist even with the passage of Chapter 624 (see discussion below). Indeed, it is even more reasonable for DCR to be permitted to improve the way (to the extent feasible given the wetlands) for emergency vehicles than for general use due to the size of emergency vehicles and potential safety issues.
[Note 50] I stress, however, that although the easement is to be used as a secondary access point, this does not mean, as the plaintiffs argue in their post-trial briefs, that the defendants use of the easement is limited to private and low-volume uses consistent with the needs of a residential estate. Plaintiffs Rebuttal Brief at 1 (Aug. 2, 2007). As described in this Decision, there is no restriction that the easement be used solely for private, residential uses. Moreover, although it is clear that the easement is a secondary access route, such classification does not necessarily result in a restriction that it be used only for low-volume uses, at least as the plaintiffs seem to define it, so long as the easement is not used in an overly intensive manner.
[Note 51] The one exception to this finding is the road race mentioned in the facts section above. It is not reasonable for DCR or MassHort to give permission to any entities to hold a large road race (or an event of similar magnitude) over the easement. Although MassHort technically only gave permission for the charity to use the roads on Elm Bank, it had to (or should) have known that the runners would be using the easement to access those roads on Elm Bank. DCR and MassHort cannot plausibly comply with this exception by simply allowing events to use the roads or facilities on Elm Bank and ignore how their invitees will access the property.
[Note 52] Such vehicles can include the trucks delivering and servicing the portable toilets for the soccer fields.
[Note 53] Again, the plaintiffs testimony suggests that since the bridge closures, truck traffic is only approximately twelve vehicles per week.
[Note 54] Indeed, with the exception of the bridge closures, even the defendants use of the easement is consistent with using it for only periodic traffic. For example, the plaintiffs testified that there are approximately twelve large delivery trucks each week and an undefined small number of vehicles each day that use the easement to access Elm Bank.
[Note 55] There was testimony at trial that Ms. Krock placed boulders along her property line and Mr. Rendell placed logs along his property line. It was unclear, however, whether these objects were on their properties or whether they were within the right of way. The defendants described these objects as being placed along the shoulder, within one to two feet of the edge of the pavement. Commonwealths Post-Trial Memorandum at 75, ¶¶ 671-76. If these items are merely placed along the shoulder of the road and are not actually in the fifteen foot width of defendants right of way, the plaintiffs do not need to remove them. The defendants were only granted the right to use a fifteen-foot-wide easement. If their trucks and vehicles cannot enter and exit without driving outside of the fifteen-foot-wide easement, they must find alternative access points. Given the attendant circumstances of the grant of the easement, it is not reasonable to widen the right of way.
[Note 56] The Commonwealths assertion that it is immune from trespass and nuisance claims is incorrect. See Hennessy, 265 Mass. at 561-62. This court has the power to enjoin continuing trespasses and abate nuisances. Id. It is without power, however, to award damages for such claims. Id. In any event, the plaintiffs waived any damages claims in this case. It should also be noted, however, that the Commonwealth does not have an easement (deeded or otherwise) over the eastern leg of Turtle Lane. Accordingly, the Commonwealth, MassHort, and their invitees did not have any right to use such section of Turtle Lane during the bridge closures. The plaintiffs, however, failed to meet their burden of proving trespass since there was no evidence to suggest that DCR or MassHort directed anyone to use the eastern leg of Turtle Lane during the 2004 and 2005 bridge closures.
[Note 57] It is interesting to note that the Commonwealths current arguments regarding whether the easement is restricted to emergency access by Chapter 624 are inconsistent with many of its previous statements. See, e.g., Trial Exs. 1 (DCPO letter from Linda Whitlock, Director of Office of Real Property to Frank Keefe, Secretary of Executive Office of Finance and Administration (April 26, 1984) stating, A right of way from Washington Street in Wellesley across a one (1) way bridge is the only access to the Dover site, other than a fire access road from Turtle Lane.); 112 (Letter from Garry VanWart (MDC) to Lisa Vernegaard at 1 (Jan. 7, 1988) stating, Legislation states Turtle Lane and others will be restricted to emergency access EXCEPT for sewer construction. (emphasis in original)); 113 (Inter Office Correspondence from Garry VanWart (MDC) (Jan. 13, 1998) stating the same); 119 (Letter from M. Illyas Bahatti, Commissioner of MDC to John Carlson, Deputy Commissioner of DCPO (Oct. 30, 1989), urging DCPO to fix Cheney Bridge since, [a]s a result of the closure of the bridge the Elm Bank Reservation is virtually inaccessible to the public as the only other access road, Turtle Lane, is used for emergency or maintenance purposes.); 123 (DCPO Development Guidelines for Elm Bank (undated) stating, Access to the site from Turtle Lane, a private way, and a private driveway should be used for emergency access only.). But see, e.g., Trial Exs. 121 (Memorandum from Lisa Vernegaard (Jan. 3, 1990) stating it is our opinion that the Commonwealth and any of its employees, agents, contractors, invitees, etc. have the right to access the site via this driveway without first having to seek permission, written or otherwise, from any of the residents of Turtle Lane.); 166 (DCPO Memorandum from Joan McCallion to Pam Brown (Sept. 4, 1991) noting that Turtle Lane will provide access for all usual purposes as stated in the deed).
[Note 58] Similarly, the Commonwealths argument that since the legislature must have known that heavy vehicles could not use Cheney Bridge, it is reasonable to allow such vehicles to use the easement pursuant to the emergency access provision must fail as well. No reasonable reading of the emergency access provision could include regular use by heavy vehicles. Moloney v. Boston Five Cents Savings Bank, FSB, 422 Mass. 431 , 433 (1996) (construing statutory language according to the intent of the legislature ascertained from all its words construed by the ordinary and approved usage of the language). In addition, this argument actually cuts the other way. Despite knowing that heavy vehicles could not use Cheney Bridge, the legislature did not include a provision that such vehicles could use the easement. This silence is telling and suggests that despite knowing the limitations of Cheney Bridge, the legislature made an explicit choice to still limit access to emergency use. Furthermore, if the emergency access provision was interpreted to include the use of the easement by any heavy vehicle at any time, the express limitation would soon have little effect. Such an interpretation would essentially allow consistent (daily) traffic over the easement rather than only during emergencies as mandated by the Legislature, which would be an absurd result. Livoli v. Zoning Bd. of Appeals, 42 Mass. App. Ct. 921 , 922 (1997). Emergency traffic cannot reasonably be interpreted to include essentially any heavy vehicle such as UPS deliveries, rental box trucks, and the vehicles used by catering companies. Delivering food to a wedding, for example, cannot plausibly be an emergency.
[Note 59] I quickly note that the Commonwealths argument that because it has emergency access rights over all roads in the Commonwealth pursuant to its general police powers, the emergency access provision is superfluous is without merit. It goes without saying that emergency vehicles could use the easement to access Elm Bank even without the legislative directive. However, as shown by the facts of this case, DCR is authorized to lease Elm Bank to other entities and to invite the general public to use the property. Without the explicit emergency access provision, DCR, its guests, and its lessees could use the easement for any purpose permitted by the grant in the Stigmatine Deed. Accordingly, the emergency access provision is far from superfluous.
[Note 60] As discussed in greater detail below, the Commonwealths argument regarding the plaintiffs alleged failure to timely file suit challenging the transfer of Elm Bank fails. The Care and Control Agreement stated that DCPO was acting pursuant to Chapter 624 and, therefore, (to the extent that the plaintiffs would have been aware of the terms of the transfer at that time) the plaintiffs were reasonable in believing that such transfer included the restrictions set forth in that act.
[Note 61] The Commonwealth is incorrect in its assertion that [a] master plan was no longer necessary because the redevelopment of Elm Bank was abandoned and the proposal was no longer multi-faceted, the plan for Elm Bank was single faceted. Commonwealth Post-Trial Memorandum at 109. First, the redevelopment of Elm Bank (as authorized by Chapter 624) involved the development of the property as an MDC park (Section 2), development of a public water supply (Section 3), and the development of affordable housing (Section 4). The elimination of the affordable housing development did not make this a single-faceted project. In any event, the Commonwealths definition of a project requiring a master plan included any large . . . project and the reuse of Elm Bank would certainly be considered a large project. Furthermore, regardless of the general definition of projects requiring master plans, the legislature specifically required DCPO to develop a master plan. Its alleged failure to do so cannot negate the legislatures clear command limiting the use of Turtle Lane.
Related, the Commonwealths assertion that this court does not have jurisdiction to determine whether DCPO erred in not requiring further MEPA review, completion of a Master Plan, or failing to include the emergency access provision in the care and control agreement also is incorrect. Chapter 624, the master plan, and the Care and Control Agreement can be reviewed by this court insofar as they relate to the underlying issue the interpretation of the easement language and the defendants rights to use the easement. See Levenson, 251 Mass. at 382. It is beyond question that these documents relate to such analysis.
[Note 62] Indeed, even MDC came to that conclusion prior to signing a Memorandum of Agreement with DCPO. Trial Ex. 112 (Letter from Garry VanWart to Lisa Vernegaard at 2 (Jan. 7, 1988) stating, It would appear that the master plan would not be finalized and agreed upon for a long time (years?). I am assuming that as long as the master plan is contested with law suits, it is not final and formal transfer of [the] property cannot happen. (emphasis added)).
[Note 63] At the very least, however, the record shows (and the Commonwealth concedes) that the Master Plan was certified by the Secretary of Environmental Affairs on January 2, 1991. Trial Ex. 238; Commonwealths Post-Trial Memorandum at 105.
[Note 64] The Commonwealth stated that at some point, it was determined that the project did not need MEPA review and therefore, the EIR was not necessary. I make no rulings on this issue since it is not material to this case. Regardless of whether a MEPA review was performed or not (or was required or not), the legislature required the master plan to be conducted. Thus, the master plan sections of the report would still be necessary.
[Note 65] I agree with the Commonwealth that the Care and Control Agreement was not a disposition agreement (as that term is normally used in legislation, see, e.g., G.L. c. 7, § 40E, et seq, referenced in Chapter 624) since [a] disposition of state land is a well understood concept involving a conversion of public land to private hands. Commonwealths Post-Trial Memorandum at 110. I do note, however, that the master plan discussed herein stated that one of the agreements needed as part of the redevelopment of Elm Bank was a Disposition Agreement between DCPO and the MDC for the Parks as required by MGL Chapter 624 to convey Parcel A (approximately 140 acres) to the MDC. . . . This agreement should be executed after issuance by MEPA of the Final Certificate on the MDC Park. Trial Ex. 90 at I-48. Therefore, it is likely that the Commonwealth also intended the emergency access provision to be included in the Care and Control Agreement even though it was not technically a disposition agreement. Given my rulings, I need not decide this issue.
[Note 66] The Commonwealth noted that this document was not the final master plan since it was never adopted. I note, without deciding this issue, that the document is identified as the Master Plan/DEIR, not the Draft Master Plan/DEIR. In any event, as the Commonwealths counsel noted, [i]ts an official record. It was produced by a state agency for another state agency, required by statute in order to be produced. . . . It should come in entirely . . . . Trial Transcript, Vol. V at 32. Accordingly, I admitted Exhibit 90 as a governmental document, reflecting facts determined by the state and opinions from those facts from the state . . . . it will be substantively admitted as reflecting the opinions of the Commonwealth as of this particular time . . . . It would be admitted as a statement by the Commonwealth of their views. Id. at 36-37. Accordingly, these statements are admissions that the Commonwealth (at that time) believed that Turtle Lane was to be used only for emergency access pursuant to Chapter 624.
[Note 67] I note that the Commonwealths laches arguments also fail. The Commonwealth asserts that if this court finds that Chapter 624 limits its use of the easement, the plaintiffs claims should nevertheless be dismissed because of their failure to bring this action immediately after DCPO transferred the property to MDC. As the plaintiffs correctly note, however, the defendants failed to raise this argument in their answers. Laches must be raised as an affirmative defense. Mass. R. Civ. P. 8(c). In any event, this case was filed in 2005. There is evidence in the record to suggest that the parties were attempting to work through the issues regarding access without resorting to litigation. See, e.g., Trial Ex. 218 (letter from Thomas Gray, General Counsel of MDC, to John Delaney, Esq. (Feb. 20, 2003)). There also was ample testimony that showed that traffic over the easement was minimal prior to the Cheney Bridge closures in 2004 and 2005. Therefore, filing this action in 2005 was not untimely or an unreasonable delay. In addition, there was evidence indicating that MDC had obtained permission to use Turtle Lane (or at least notified residents of non-emergency uses) on various occasions from the Turtle Lane Association. See, e.g., Trial Exs. 26-27. Furthermore, in order to bar the plaintiffs claims based on laches, the delay must have prejudiced or injured the defendants. Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747 , 759-60 (1993) (The equitable defense of laches will [only] bar a party from asserting a claim if the party so unreasonably delayed in bringing the claim that it caused some injury or prejudice to the defendant.). Here, no such prejudice or injury has been demonstrated. Indeed, the defendants have benefited from the delay since they have been able to use the easement contrary to legislative authority.
[Note 68] As part of determining what constitutes an emergency, courts look to the words usual and accepted meanings from sources presumably known to the . . . enactors, such as their use in other legal contexts and dictionary definitions. Framingham Clinic, Inc. v. Zoning Bd. of Appeals, 382 Mass. 283 , 290 (1981) (quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977)). For example, G.L. c. 7, 40E (cited in Chapter 624) defines an emergency as any situation caused by unforeseen circumstances which render currently used real property unusable or unavailable for the purposes intended and which creates an immediate need for other real property to preserve the health or safety of persons or property. Likewise, the American Heritage College Dictionary defines an emergency as (1) A serious situation or occurrence that happens unexpectedly and demands immediate action[; or] (2) An condition of urgent need for action or assistance. American Heritage College Dictionary at 458 (4th ed. 2002).
[Note 69] Otherwise, Elm Bank would be completely inaccessible, which would lead to an absurd result that is inconsistent with Chapter 624s general purpose to develop and utilize Elm Bank for the public benefit. Accordingly [w]e . . . avoid an absurd result when the language is susceptible to sensible meaning here, by including the bridge closures as an emergency warranting use of the easement. Livoli, 42 Mass. App. Ct. at 922.
[Note 70] Contrary to the defendants arguments, it was not necessary for the plaintiffs to join the towns and other soccer clubs to this action. They are lessees of the Commonwealth and, accordingly, their rights to use the easement derive from the Commonwealth. They have no greater rights to use the easement than the Commonwealth and if they believe that their rights have been negatively impacted by the rulings in this case, any complaints should be directed to the Commonwealth.
[Note 71] MassHorts reference to Boston Water & Sewer Commn v. Commonwealth does not suggest a contrary result. As MassHort even notes in its parenthetical, the court noted that [t]o the extent that any statutory provisions are inconsistent with the 1999 act, we conclude that the phrase notwithstanding any . . . general or special law to the contrary repeals the inconsistent statute to the extent necessary to make the act effective. Boston Water & Sewer Commn v. Commonwealth, 64 Mass. App. Ct. 611 , 616-17 (2005) (emphasis added). Here, the emergency access provision is not inconsistent with Chapter 105, which makes no mention to access whatsoever. Chapter 105s requirements can be effectuated while still complying with the emergency access provision of Chapter 624. This is in stark contrast to the affordable housing provision, which would clearly be repealed under this case law.
[Note 72] Contrary to MassHorts arguments, the fact that the town of Wellesley wanted access to Elm Bank over both Cheney Bridge and Turtle Lane is not relevant to this analysis. See, e.g., Defendant Massachusetts Horticultural Societys Post-Trial Brief at 11 (July 12, 2007). If anything, the fact that the Selectmen vigorously demanded such access and attempted to hold up the passage of Chapter 105 cuts against MassHorts arguments since, even in the face of such positions, the legislature failed to address access in the act.
[Note 73] At the time of enactment of Chapter 624, Buttercup Lane was contemplated as an alternative access point. See Trial Exs. 90 at I-6; 91 at II-127.
[Note 74] In its post-trial brief, MassHort ignores the reference to Cheney Bridge and other access points when referencing this provision in the Lease Agreement. The inclusion of all access points is important it indicates that Turtle Lane is not the only method to access Elm Bank for all lawful and necessary purposes. Ex. 204 at 13. Thus, it undermines MassHorts argument that Chapter 105 and the Lease Agreement are inconsistent with Chapter 624. Read together, the three documents simply provide various methods of access, with differing limitations.
[Note 75] It should be noted that, contrary to the inferences in the defendants arguments, the Commonwealth did not have the authority to grant in the lease greater rights to use the easement than Chapter 624 authorized.
[Note 76] I recognize that this may make accessing the premises more difficult for large and heavy trucks and vehicles, but such a result is commanded by the legislatures directive. I further recognize that MassHort has expended considerable sums of money in order to update and improve the property for its uses, which is significant given the fact that MassHort is a nonprofit organization. However, any negative ramifications due to the Commonwealth granting (or MassHort reasonably relying on the Commonwealths suggestions it could grant) more rights to use the easement than it actually possessed is an issue that MassHort must resolve with the Commonwealth.
[Note 77] I recognize that this Decision may lead to further litigation in the way of contempt proceedings, as the defendants stress in their post-trial briefs. However, such possibilities cannot compel this court to come to a different conclusion than what the law and facts reveal. I note, however, that this does not mean that every trifling disturbance of the plaintiff or the least possible detriment to his property is prohibited. A right of way so strictly limited could hardly be exercised at all. Swenson, 306 Mass. at 584.
[Note 78] To the extent that the parties made additional arguments, asserted additional theories, or outlined additional claims, I need not and do not address them in this Decision.