MISC 06-336171

September 28, 2010


Long, J.



This is a dispute between neighbors regarding the location of their common boundary, the validity, location and permissible uses of the defendant’s express easement over a portion of the plaintiff’s property, whether trespasses have occurred, [Note 1] whether a fence and tree erected by the defendant are “spite fences” prohibited by G.L. c. 49, § 21, whether a contempt of this court’s preliminary injunction has occurred, and the appropriate remedies associated with these claims.

For the reasons set forth in the court’s Decision of this date, it is hereby ORDERED, ADJUDGED and DECREED that the parties’ common boundary lines are in the locations shown on plaintiff’s survey (Trial Ex. 137), that the eastern edge of the defendant’s easement is located one foot west of, and parallel to, the plaintiff’s fence along the western side of her residence, that the easement’s width extends to the plaintiff’s western boundary line, and that the defendant may use that easement only to pass and re-pass, not to stop or park. The plaintiff and her guests may park in any area of the easement so long as they do not unreasonably interfere with the defendant’s right to pass and re-pass over it. This includes, but is not limited to, the plaintiff’s and her guests’ right to park along the street so that no more than three feet of their vehicles intrude into the easement. This may continue except for those specific times (if any) that defendant has a demonstrated need for access that requires that space (e.g. an unusually large truck). The defendant must give reasonable advance notice, in writing, of such a specific need, giving time, date and explanation.

It is further ORDERED, ADJUDGED and DECREED that the defendant’s eight foot high fence and fifteen foot tall tree as shown on the Decision Sketch are “spite fences” prohibited by G.L. c. 49, § 21. The defendant 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 the plaintiff’s view of Mascuppic 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. The defendant 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. No finding of contempt is made or necessary since the relief set forth above is a sufficient remedy for any such contempt. No damages are awarded to either party.


By the court (Long, J.)


[Note 1] Only future injunctive relief is sought.