NICOLE DUEY v. JOAN TRUDEL

Introduction

Plaintiff Nicole Duey and defendant Joan Trudel are neighbors on Mascuppic Trail road in Tyngsboro. Their homes were once summer cottages on three lots bordering Lake Mascuppic in the common ownership of the late Emelina Bourret. Ms. Trudel’s home (79 Mascuppic Trail) is on lot 27. See Decision Sketch, attached. She also owns lot 26 and the southern part of lot 25, now vacant land. Ms. Duey’s home (85 Mascuppic Trail) is on the northern part of lot 25. In the past there was also another cottage straddling the southern portions of lots 25 and 26 (a former trolley car with additional rooms added, fifteen feet from the lake) (the “trolley”), accessed from Mascuppic Trail by a dirt driveway. That driveway was also used by the residents of the now-Duey house to get to their front door (then located on the western side of the house, with a stoop in front of the door) and to what was then their parking area at the rear of the house.

The properties were severed in 1949 when Ms. Bourret deeded the land and cottage on the northern part of lot 25 (now the Duey property) to her son Francois, retaining the remainder (now the Trudel property) for herself. The lakeside trolley, subsequently destroyed in a fire and never rebuilt or replaced, was still in existence at that time. Since at least part of the dirt driveway to the trolley crossed the property deeded to Francois, Ms. Bourret reserved an easement over that portion of the driveway for the benefit of herself and her assigns. That easement was described as “a right of way over the driveway extending along the Westerly side of said Lot 25 to Mascuppic Trail,” Deed, Emelina Bourret to Francois Bourret (Oct. 18, 1949) (the “Bourret deed”), and was neither located on a plan nor dimensioned in any way. The land over which the driveway ran has been much altered since the time of the Bourret deed and the subsequent loss of the trolley, and the footprint of the 1949-era driveway is no longer evident on the surface of the ground.

Relations between Ms. Duey and Ms. Trudel are not good. There have been a series of confrontations, many requiring police intervention, regarding the location of their common boundary line, Ms. Trudel’s removal of a monument at a corner of that line, the location of the easement, activities in and around the easement, the type and location of fences, the parking of cars, and the planting and pruning of trees and bushes. Nearly all, if not all, of these confrontations have been started by Ms. Trudel, for the reasons discussed below. Ms. Duey thus brought this lawsuit to sort them out.

The claims at issue fall into four categories: (1) the location and dimensions of the easement, (2) the location of the boundary line between the Duey and Trudel properties, (3) whether an eight foot tall wooden stockade fence and a fast growing, thick-leafed, fifteen foot tall tree recently installed by Ms. Trudel in precisely the best places to block Ms. Duey’s views of Mascuppic Lake are “spite fences” within the prohibitions of G.L. c. 49, § 21, and (4) whether certain activities of the parties are trespasses. [Note 1] The easement, boundary, and trespass disputes are within the land court’s jurisdiction. The “spite fence” claims, where land court jurisdiction is not as clear, were transferred to superior court and I was interdepartmentally assigned to hear them.

A preliminary injunction was entered early in the case. A contempt complaint and counterclaim were subsequently brought for asserted violations of that injunction. A six day trial of both the contempt issues and the underlying merits of the case was held before me, jury-waived. Based on my assessment of the weight and credibility of the evidence admitted in connection with the trial, I find and rule as follows.

The Location and Dimensions of the Easement

The easement at issue originates in the Bourret deed and is contained and so referenced in the deeds of both Duey (“subject to a Right of Way over the driveway…as described in [the Bourret deed]”) and Trudel (“together with a right of way over the driveway…as set forth in [the Bourret deed]”). As noted above, the language creating the easement is as follows: “reserving for myself and my heirs, executors, administrators and assigns, a right of way over the driveway extending along the Westerly side of said lot 25 leading to Mascuppic Trail.” Bourret deed at 1. At one point in these proceedings Ms. Duey challenged the validity of the easement, arguing that the failure to specify its location and dimensions in the words of the reservation made it void for vagueness. That argument fails. Clearly the intent was to reserve an easement for access to the trolley and the lakeside portions of lots 25 and 26. This is sufficient to uphold the easement’s validity. See Cheever v. Graves, 32 Mass. App. Ct. 601 , 605 (1992) (“The mere fact that the precise location is undefined does not negate the existence of the right of access.”).

Emelina Bourret owned the entirety of the Trudel property at the time of the reservation. Thus, each of those lots (27, 26 and the southern part of 25) has the benefit of the easement. See Pion v. Dwight, 11 Mass. App. Ct. 406 , 410 (1981). Moreover, the easement has neither been abandoned nor extinguished. Even though the trolley has long since been destroyed by fire, the area it formerly occupied continues to be used for picnics and other waterside activities and the easement is regularly used to access that area.

The focus thus shifts to two questions: (1) the location of the 1949 driveway and (2) from that and other relevant facts, the location of the intended easement (as discussed below, the two are not conterminous; the driveway was partially on the grantor’s retained land). The law is clear on the analysis. 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. The extent of a conveyed undefined right of way turns on the circumstances evidencing the intent of the parties to the transaction. Also, the practical location and use of the way by the grantee acquiesced in by the grantor may operate as an assignment of the right and be deemed to be that which was intended. The parties are also free to locate a previously undefined right of access. In the absence of agreement, the court may fix the bounds of a way not located by the instrument creating it.

Mugar v. Massachusetts Bay Transportation Authority, 28 Mass. App. Ct. 443 , 444-45 (1990) (internal citations and quotations omitted). See also LaBounty v. Vickers, 352 Mass. 337 , 345 (1967) (“It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed.”). The analysis thus begins with the language of the deed and when, as here, that language is ambiguous, proceeds to an examination of “the then-existing conditions so far as they are illuminating” and “the practical location and use of the way.”

The deed puts the easement “along the Westerly side of lot 25” in the area of the then-existing driveway. This raises two questions. First, what was meant by “the driveway?” Second, where was “the driveway” located? The deed makes clear that it was “along the Westerly side of the lot.” A more complete understanding requires an examination of “the then-existing conditions” and the subsequent conduct of the parties.

Lot 25 (the burdened parcel) is narrow with only 15.5 feet between the side of the house and the western edge of the lot. [Note 2] See Decision Sketch. The lot is relatively level where it meets Mascuppic Trail. [Note 3] It then slopes downward towards the lake. The now-Duey house was cut into this slope. There is presently a retaining wall near the northern and western sides of the house (see Decision Sketch) and, in the past (before that wall was built) there were concrete or granite blocks further to the west which served much the same purpose. The area to the west of these blocks was flat. Some witnesses at trial spoke generally about the entire flat area as “the driveway,” but that reference is different from “the driveway” as intended in the Bourret deed. At the time the easement was created by that deed (1949), the flat area to the west of the house was used not only to access the lakeside trolley (the reason the easement was reserved) but also the-then front door of the now-Trudel house, then located on the western side of the house. I have no doubt that the flat area near the house was walked upon by the residents of the house. The cars driven by these residents may occasionally have come as close as four to six feet to the house (the width of an open car door plus the two foot stoop in front of the front door — likely the way groceries were carried inside). But as shown in the relatively contemporaneous photographs admitted into evidence (see, e.g., Exs. 98, 99, 100, 105) the traveled part of the flat area between the house and the western boundary of the lot (as evidenced by the tire marks), and certainly the part driven upon by persons going to and from the trolley, was on its far western side. Clearly cars stayed away from the side of the house both to respect the privacy of its residents and, in the case of those residents’ cars, to give them adequate room and angle to swing around the southwest corner of the house into and out of the then-parking area at the rear of the house. [Note 4] Thus, “the driveway” as referenced in the Bourret deed referred to the traveled portion on the western side of the flat area (the part used to access the lakeside trolley) and not to the entirety of the flat ground — thus the language “the driveway along the Westerly side of said lot 25” (emphasis added).

This location of “the driveway” away from the house and along the westerly side of lot 25 is corroborated by Ms. Trudel herself, who testified at trial that her father “hot-topped” the traveled portion of the former dirt driveway and that the edge of that hot-top was approximately eight feet from the house. [Note 5] Ms. Duey’s surveyor, John Hammer, confirmed that there was old pavement at this distance from the southwest edge of the house, angling westward from that point north to Mascuppic Trail See Trial Ex. 137. This is consistent with Francis Bourret’s testimony about the angling, although I find his memory of how near it came to the house (four to six feet) unreliable on that point. In light of the other evidence, I find that the true (traveled) driveway (the “driveway” intended to be referenced in the Bourret deed) was further out at the eight foot mark. See, e.g., Trial Exs. 99, 100 and the discussion immediately below. [Note 6]

To the extent confirmation of this location is necessary, it is provided by the subsequent conduct of the parties. See LaBounty, Mugar, supra. See also Proulx v D’Urso, 60 Mass. App. Ct. 701 , 705 (“the original easement may be deemed relocated when the conduct of the parties is such as to permit a conclusion that a different easement had been substituted for the way mentioned in the deeds”) (internal citations and quotations omitted). Ms. Trudel’s predecessors put a fence along the back border of the now-Duey house. See Trial Exs. 98, 99. Cars to and from the southern portion of lot 25 obviously passed to the west of this fence, and contemporaneous pictures show that the traveled way (evidenced by tire marks) was in a straight line from Mascuppic Trail to the immediate west of the fence. Trial Ex. 99. The westernmost post of this fence was at least seven feet from the side of the now-Duey house, determined as follows. A chain-link fence, parallel to the western edge of the now-Duey house, was installed by Ms. Duey’s predecessors, aligning to a point just to the east of the westernmost post of the Trudel-property fence. See Trial Ex. 105. This chain link fence was in the same location as Ms. Duey’s current fence, seven feet from the side of house. Trial Tr., Day 3 at 162. See also Tr. Ex. 137 (survey showing location of fence). [Note 7] There have long been plantings and grass to the west of the Duey fenceline, putting the edge of the traveled way eight feet parallel from the side of the house. I find and rule that that is the eastern edge of the easement.

The remaining question is the width of the easement. Francis Bourret testified that the 1949-era driveway was wide enough for a truck to drive upon, which he estimated to be between eight and nine feet. This would put the western edge of that driveway 6 to 18 inches onto lot 26. This was confirmed when Ms. Duey’s surveyor, Mr. Hammer, investigated and found part of the former “hot top” on lot 26, [Note 8] and is no great surprise since lots 25 and 26 were in common ownership at the time the driveway was first used and there would have been no particular reason to locate it entirely on lot 25. I thus find that the easement on Ms. Duey’s land extends from a line parallel to her house, eight feet from its western side, to and including the western boundary of her land. The remainder of the former driveway is on lot 26 which Ms. Trudel, as its owner, is free to use (or not use) as she pleases.

The Location of the Parties’ Common Boundary Lines

Both Ms. Duey and Ms. Trudel have had their properties surveyed, and both those surveyors testified at trial – John Hammer for Ms. Duey and Ron Close for Ms. Trudel. Mr. Hammer’s and Mr. Close’s opinions are reflected on their respective surveys, Trial Ex. 137 (Hammer) and Trial Ex. 150 (Close). The boundary lines at issue are the southern and western borders of the Duey property — its common boundary with Trudel’s portion of lot 25 (to the south) and Trudel’s lot 26 (to the west). See Decision Sketch.

There is no genuine dispute regarding the southern boundary. Both surveyors locate it on (or, in Mr. Close’s case, so nearly on as to make no difference) the line of Ms. Duey’s existing fence. I thus find that that boundary is along the outer (southern) edge of Ms. Duey’s fenceposts. See Trial Ex. 137 for precise survey information.

The real dispute (although a relatively minor one) is over Ms. Duey’s western boundary (the common boundary with Ms. Trudel’s lot 26). The disagreement between the surveyors is less than a foot — Mr. Hammer placing the line that foot further away from Ms. Duey’s house, and Mr. Close placing it that foot closer. Having heard both surveyors and reviewed their work, I find Mr. Hammer’s location of that line to be the correct one and adopt it. My reasons are as follows.

The original (1917) subdivision plan referenced in the parties’ deeds is not accurate enough to be definitive. See Trial Ex. 2. As Mr. Hammer testified, it is not at all clear that that plan was even based on actual field measurements, nor that the roadways (important reference points) were constructed precisely as depicted. If any lot markers were set at that time, they have not survived in the area in dispute. The deeds themselves give lengths and widths, but their starting points are identified only by reference to abutting lots without clearly identifying the locations of those lots. See Trial Exs. 3-22. Many surveys have been done of the area and many markers have been left on the ground. See Trial Exs. 137 & 150. With the exception of the ones placed by Mr. Close in connection with his survey for Ms. Trudel, it is difficult to identify who left which markers, whether they were set by qualified surveyors, and even if set by such surveyors, on what basis. Many are inconsistent with both Mr. Hammer’s and Mr. Close’s solutions. The question faced by both Mr. Hammer and Mr. Close was which (if any) to believe and which to disregard. [Note 9] In such circumstances, established lines of occupation became significant. See generally Bacon v. Onset Bay Grove Ass’n, 241 Mass. 417 , 423 (1922) (“Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.”) (internal citations and quotations omitted); Fulgenitti v. Cariddi, 292 Mass. 321 , 325 (1935) (“Acts of adjoining owners showing the practical construction placed by them upon conveyances affecting their properties are often of great weight.”).

My conclusion, based on my review of all the evidence, is that (with the exception of those recently set by Mr. Close) the markers in and around the Duey and Trudel properties reflect locations agreed between the then-abutting landowners, i.e. they reflect lines of occupation. Two markers thus stand out. The first is a railroad spike, found by both surveyors, set at what I find to be the southwest corner of the Duey parcel. It aligns perfectly with Ms. Trudel’s agreed-upon southern boundary and is consistent with the property deeds and measurements derived therefrom. The second is a hole at what I find to be the northwest corner of Ms. Duey’s property. As Mr. Hammer testified, this has all the indicia of where a surveyor’s marker previously existed and, again, is consistent with the property deeds and measurements derived therefrom. The hole is the size of the railroad spike found at the southwest corner and likely dates from that same time. Indeed, the testimony revealed that Ms. Trudel pulled the spike out of the hole and covered it with gravel, which I find significant and hold against her (spoiliation of evidence and acknowledgement that it undercut her contrary claims). See Trial Ex. 70. Since its location pre-dates both Ms. Duey’s and Ms. Trudel’s ownership (and long pre-dates their confrontations, described more fully below), I find that it likely represents an accepted demarcation of their mutual boundary line by those prior owners. It may be a few inches more than 44.93 feet from a stone bound at the northeast corner of the Duey property, but that is not significant. I find that that stone bound was likely also a mutually-agreed boundary demarcation between the now-Duey property and its eastern neighbor (it is at the northern point of Ms. Duey’s retaining wall on that side of the house, see Trial Ex. 137). For that and the reasons cited by Mr. Hammer in his testimony, I find and rule that the western boundary of the Duey property is the straight line between the former location of the railroad spike at the north (which I find to be its northwest corner) and the railroad spike to its south, which I find to be its southwest corner. See Trial Ex. 137 for precise survey information.

The Spite Fence Issues

G.L. c. 49, § 21 provides that:

A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three [actions for private nuisances].

The constitutionality of the statute was addressed and affirmed in Rideout v. Knox, 148 Mass. 368 (1889) (Holmes, J.), which held:

…[M]alevolence must be the dominant motive—a motive without which the fence would not have been built or maintained….If the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it. If he thinks it necessary, and acts on his opinion, he is not liable because he also acts malevolently.

…[T]he statute thus construed is within the limits of the police power, and is constitutional, so far as it regulates the subsequent [post-1887] erection of fences [the court also held it constitutional as applied to all fences maintained after the statute went into operation in 1887]. To that extent, it simply restrains a noxious use of the owner’s premises, and although the use is not directly injurious to the public at large, there is a public interest to restrain this kind of aggressive annoyance of one neighbor by another, and to mark a definite limit beyond which it is not lawful to go.

Rideout, 148 Mass. at 373-74 (emphasis added). In addition to awarding damages, the court may also enter injunctive relief “abat[ing] so much of the fence as exceed[s] six feet in height.” Rice v. Moorhouse, 150 Mass. 482 , 483 (1890).

Ms. Trudel has erected an eight foot tall stockade fence along Ms. Duey’s southern boundary blocking Ms. Duey’s view of Mascuppic Lake. [Note 10] After Ms. Duey built a deck off her second floor so she could still view the lake, Ms. Trudel planted a 15 foot tall tree directly in the way to block that view as well. I have no doubt whatsoever that the fence and the tree were placed there by Ms. Trudel with malice and for the purpose of annoying Ms. Duey, and that to the extent they exceed six feet they were not “really necessary for any reason.”

Ms. Trudel’s malice towards Ms. Duey is crystal clear from the evidence. Some of it may be rooted in legitimate disputes, but most is not. And it has clearly gone beyond any justifiable bounds.

Relations between the two began well enough. Ms. Duey bought her house because of its view of the lake. Ms. Trudel knew this. At the time of the purchase, Ms. Trudel was asked if Ms. Duey could replace the then-existing fence along the Duey-property’s southern boundary with a new picket fence in the same location. Ms. Trudel agreed so long as a fence was there to mark the boundary. I do not credit Ms. Trudel’s testimony that she had a second condition – that it be, and could only be, a picket-style fence. The fence that was there before was not a picket-style fence, and the fence later constructed by Ms. Trudel herself was not picket-style either. In any event, because a picket fence was not well-suited to the terrain and adapting it to be so was beyond Ms. Duey’s means, Ms. Duey installed a post and rail fence. [Note 11] Unfortunately, she also installed a gate on its lake side. Ms. Trudel was angered at this apparent assumption that Ms. Duey could walk through the gate onto Ms. Trudel’s property, [Note 12] and that anger built and built as incident followed incident.

Ms. Duey’s offer to put a lock on the gate so that it couldn’t be used was rejected, and Ms. Trudel’s acts in defense of what she perceived to be her property rights quickly escalated. Ms. Trudel and her boyfriend began regularly parking their cars alongside Ms. Duey’s southern fence, interfering with Ms. Duey’s view of the lake from her back yard. [Note 13] The eight foot tall stockade fence along Ms. Duey’s southern boundary was erected shortly thereafter, completely blocking the view. [Note 14] It towers over Ms. Duey’s open-style post and rail fence, and Ms. Trudel has put vines along its top to make it taller still. See Trial Exs. 31, 32, 35, 36, 77. The easement from Mascuppic Trail to the lakeside had not previously been an issue. So far as the evidence showed, it had not much been used and the cars using it had stayed on a paved strip well away from the now-Duey house, leaving a three to four foot wide grassy area between the pavement and Ms. Duey’s fence on the western side of her house. [Note 15] See Trial Exs. 41-44. Ms. Duey owned this area. [Note 16] It was not being used by any cars (they stayed on the pavement). Ms. Duey thus proposed to move her fence to enclose it, enabling her to expand her side yard garden. When she and her fiancé placed stakes there to mark the proposed new fence line, Ms. Trudel reacted immediately. She screamed profanities at Ms. Duey and her fiancé, [Note 17] went to the stakes, ripped them up, threw them against Ms. Duey’s house and told them she would use her car to “smash” any fence they placed there. The police were called. When they arrived Ms. Trudel repeated her threat to “smash” any fence, and when the police attempted to calm the situation, swore at them as well. Ultimately the fence was not moved and Ms. Trudel began dumping quantities of gravel over the previously existing pavement, steadily pushing the western edge of the gravel over the grass closer and closer to Ms. Duey’s house. The gravel is currently at the base of Ms. Duey’s fence.

Ms. Duey applied for a variance to construct a deck off the second floor of her home, enabling her to see over Ms. Trudel’s newly installed fence and see the lake. Ms. Trudel opposed that application, without success. Two months after Ms. Duey built the deck Ms. Trudel planted a fifteen foot tall tree squarely in line with Ms. Duey’s view of the lake, substantially blocking that view when the tree is in full leaf. She was prevented from planting more only by this court’s preliminary injunction. After the injunction was granted, Ms. Trudel placed a cut-out of a cow near Ms. Duey’s deck, with the cow’s buttocks directly pointing at the deck. See Trial Ex. 79.

Ms. Trudel’s eight foot fence is more than six feet tall and clearly within the scope of G.L. c. 49, § 21. In the circumstances of this case, I find Ms. Trudel’s tree, currently more than fifteen feet tall and quickly growing taller, and any similarly-placed trees over six feet high, to be “a structure in the nature of a fence” also within the scope of the statute. The fence is in only one location—the 40’ along Ms. Duey’s back yard, directly between Ms. Duey and the lake — and neither extends to nor connects with anything else. The tree was not planted until after Ms. Duey built her deck and it was planted in a location unlikely to have been coincidental, as it maximizes the impact on Ms. Duey’s view without any corresponding enhancement of Ms. Trudel’s privacy. In fact, Ms. Trudel’s home, and over two-thirds of her lakefront, face another direction entirely. They have been placed with malice and with the intent to annoy Ms. Duey. Ms. Trudel claims that she put them there to protect the privacy of her property but I do not believe her. Not only were they not were not “really necessary” for that purpose (as just noted, Ms. Trudel’s home and over two-thirds of her lakefront face in another direction entirely) but they do nothing to enhance that privacy. The lakeside area in question is directly overlooked a 2 ½ story residence no more than ten feet away and inches from that neighbor’s concrete pier. See Decision Sketch and Trial Ex. 137.

The Trespass Issues

As noted above, neither party seeks damages on its trespass claims, only future injunctive relief. Ms. Duey owns her property to the boundary lines described above. Ms. Trudel has an easement to pass and re-pass over the western portion of Ms. Duey’s property from Ms. Duey’s western border to a line one foot west and parallel to Ms. Duey’s side yard fence. She has the right reasonably to improve that easement. That includes gravel but, because of drainage issues, may not include the right to pave. [Note 18] She may not park on any section of the easement since she only has a “right of way over the driveway,” Bourret Deed at 1 (emphasis added), not a right to park. [Note 19] Ms. Duey and her guests may park in the area of the easement (she owns its underlying fee) so long as they do not unreasonably interfere with Ms. Trudel’s right to pass and re-pass over it. The preliminary injunction permitted Ms. Duey and her guests to park along the street so that no more than three feet of their vehicles intruded into the easement (there is more than enough space for ordinary vehicles to use the easement at that location even with such an intrusion, see Trial Ex. 65). This may continue except for those specific times (if any) that Ms. Trudel has a demonstrated need for access that requires that space (e.g. an unusually large truck). Ms. Trudel must give reasonable advance notice, in writing, of such a specific need, giving time, date, and explanation.

Other Relief

For the reasons set forth above, Ms. Trudel must remove the tree and may not make any tree or other plantings on the south portion of lot 25 over six feet in height that in any way block Ms. Duey’s view of the lake. The fence must be lowered so that it is no more than six feet in height, measured from the ground. Both the removal of the tree and the lowering of the fence must be done within ninety days. Ms. Trudel may park her cars and other vehicles anywhere on her property not otherwise prohibited by law so long as they are not placed in such a manner and in such locations (i.e. in a line along or near the plaintiff’s southern boundary line) as to make them the equivalent of a spite fence.

The Contempt

“[A] finding of civil contempt requires a clear and undoubted disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837 , 852 (2009) (internal citations and quotations omitted). In this case, I need not and do not decide if a contempt of my preliminary injunction has occurred because “[t]he purpose of civil contempt is remedial: its aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant.” Id. at 847-848. That purpose will be achieved if both parties to this action abide by the terms of this Decision and its accompanying Judgment. Whether a contempt of the preliminary injunction has occurred or not, I deem the relief directed herein a sufficient remedy.

SO ORDERED.

By the court (Long, J.)

Dated: 28 September 2010