NORA, LLC vs. JOAN I. GELCH, 1236 BEACON STREET LIMITED PARTNERSHIP, SYROOS SANIEOFF, TRUSTEE OF THE ST. PAUL STREET REALTY TRUST, RITA BARTH, TRUSTEE OF THE 182 ST. PAUL STREET REALTY TRUST, and LILLIAN M. LEE, TRUSTEE OF THE LILLIAN M. LEE IRREVOCABLE TRUST

Plaintiff filed its verified Complaint on February 22, 2006, involving a dispute over rights in a passageway (the “Easement”) located off St. Paul Street in Brookline, Massachusetts, and alleging that the actions of Defendants Joan I. Gelch (“Gelch”), Syroos Sanieoff, Trustee of St. Paul Street Realty Trust (the “Sanieoff Trust”), Rita Barth, Trustee of 182 St. Paul Street Realty Trust (the “Barth Trust”), 1236 Beacon Street Limited Partnership (“1236 LP”) (together, “Defendants”), and Lillian M. Lee, Trustee of Lillian M. Lee Irrevocable Trust (the “Lee Trust”), in parking on the Easement, violate the Easement and constitute a trespass and a nuisance by Defendants. [Note 1] Plaintiff also filed a Motion for Preliminary Injunction, seeking to prohibit Defendants’ parking in the Easement, which this court (Lombardi, J.) denied on March 6, 2006. Gelch, Sanieoff, and Barth filed an Answer and Counterclaim on March 17, 2006, alleging prescriptive rights for parking and proposing a new location of the Easement, and Plaintiff filed its Answer to such Counterclaim on March 20, 2006. A case management conference was held on May 10, 2006. 1236 LP filed an Answer and Counterclaim on May 29, 2007, also alleging prescriptive rights for parking and proposing a new location of the Easement, and Plaintiff filed its Answer to such Counterclaim on May 24, 2007.

On August 22, 2007, Gelch, Sanieoff, and Barth filed their Motion for Summary Judgment on all counts of the Complaint and the Counterclaim, and for Attorney’s Fees Pursuant to G. L. c. 231, § 6F, together with Affidavits of Gelch, Sanieoff, and Barth. On the same day 1236 LP filed its Motion for Summary Judgment, together with Affidavit of Arthur Rigor da Eva, Jr., general partner of 1236 LP (“Rigor da Eva”). Plaintiff filed its Opposition on September 28, 2007, together with Affidavits of Anwar Faisal (“Faisal”) (manager of Plaintiff) and William V. Hovey, Esq. (expert). Such motions were denied by this court (Lombardi, J.) on October 4, 2007. On October 5, 2007, Count II of the Complaint (nuisance) was dismissed pursuant to Mass. R. Civ. P. 12(h)(3).

Gelch, Sanieoff, and Barth filed an Amended Counterclaim on March 5, 2008, alleging the right to relocate the Easement as well as prescriptive parking rights on the Easement, and Plaintiff filed its Answer to Amended Counterclaim on March 10, 2008. [Note 2] Gelch, Sanieoff, and Barth filed a second Motion for Summary Judgment on July 7, 2008, together with supporting memorandum, Concise Statement of Material Facts, and Supplemental Appendix. [Note 3] On July 9, 2008, Plaintiff filed an Opposition, together with supporting memorandum, Appendix, and Affidavit of Faisal. A hearing was held on Gelch, Sanieoff, and Barth’s Motion for Summary Judgment on November 26, 2008. [Note 4] A decision was issued on December 8, 2009, in which this court stated that, based on the summary judgment record, it could not make a finding as to 1) whether Plaintiff’s rights in the Easement were materially infringed upon by Defendants, 2) whether the relocation of the Easement proposed by Defendants satisfies the requirements of M.P.M. Builders, L.L.C. v. Dwyer, 442 Mass. 87 (2004), and 3) whether Defendants had established prescriptive rights in the Easement for parking. As a result, it could not make a finding on Plaintiff’s claim of trespass. Defendants’ Motion for Summary Judgment was DENIED.

Plaintiff filed an Amended Complaint on March 1, 2010. Barth filed her Answer on March 10, 2010, Gelch filed her Answer on March 12, 2010, and 1236 LP filed its Answer and Counterclaim on March 15, 2010. A pre-trial conference was held on August 17, 2010. A site view was held on December 17, 2010, and the trial was held on December 16 and December 17, 2010, at the Land Court in Boston. Plaintiff and Barth filed Post-Trial Memoranda on February 4, 2011, and Gelch and 1236 LP filed Post-Trial Memoranda on February 7, 2011, and at that time the matter was taken under advisement.

Testimony for Plaintiff was given by Faisal (principal of Plaintiff), and Hugh Gelch (son of Gelch). Testimony for Defendants was given by John Anthony (registered land surveyor), Rigor da Eva (principal of 1236 LP), Rudolph Barth (principal of Barth Trust), Barry Barth (son of Rita Barth), Jeanine MaGuire (renter of parking space from Gelch), and William Doherty (employee of Gelch). There were thirty-two exhibits submitted, some in multiple counterparts.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. The parties in this action own abutting apartment buildings along St. Paul Street and Beacon Street [Note 5] in Brookline, Massachusetts, with a paved passageway (the “Easement”) that begins on St. Paul Street and proceeds behind the parties' properties. The Easement includes a ten-foot wide passageway that runs along a retaining wall at the rear of the Lee Trust, Barth Trust, and Sanieoff Trust properties, a triangular turnaround area at the rear of the Gelch property, and an eight-foot wide passageway extends from the triangular area and runs between Plaintiff's, 1236 LP’s, and the Sanieoff Trust property. [Note 6]

2. The Easement and the parties' properties are shown on a “Plan of Land in Brookline, Mass. For F.E. Johnston, Esq.”, dated February 19, 1910, prepared by Henry F. Bryant, Engineer and recorded with the Norfolk County Registry of Deeds (the “Registry”) at Plan Book 54, Plan No. 2593 (the “1910 Plan”). [Note 7]

3. Plaintiff is the owner of Lot D as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 1232 Beacon Street, Brookline, Massachusetts, by deed dated August 15, 2005.

4. By deed dated September 21, 1994, Melvyn Gelch conveyed to Gelch Lot F as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 1240 Beacon Street, Brookline, Massachusetts. [Note 8], [Note 9]

5. By deed dated June 5, 1992, Arthur H. Rigor da Eva and Francis Joseph Rigor da Eva conveyed to 1236 LP Lot E as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 1236 Beacon Street, Brookline, Massachusetts. [Note 10]

6. By deed dated February 27, 1993, Sanieoff conveyed to himself, as Trustee of the St. Paul Street Realty Trust, Lot C as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 180 St. Paul Street, Brookline, Massachusetts. [Note 11]

7. By deed dated May 8, 1997, Barth and her husband Rudi Barth, conveyed to Barth, as Trustee of the 182 St. Paul Street Realty Trust, Lot B as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 182 St. Paul Street, Brookline Massachusetts. [Note 12]

8. The Lee Trust is the owner of Lot A as shown on the 1910 Plan, a property containing a multi-unit dwelling located at 184 St. Paul Street, Brookline, Massachusetts, by deed dated March 6, 1992. [Note 13]

9. As shown on the 1910 Plan, the Easement has three components: (1) the ten-foot wide section running from St. Paul Street along the northerly and westerly boundary of the Lee Trust property, the westerly boundary of the Barth Trust property, and the westerly boundary of the Sanieoff Trust property (“Section A”); (2) the eight-foot wide section running from Section C, as hereinafter defined, between the Sanieoff Trust property, the 1236 LP property, and Plaintiff's property (“Section B”); and (3) the triangular section approximately 50 feet by 44 feet by 60 feet at the rear of the Gelch property, connecting to both Section A and Section B (“Section C”).

10. In order to access Plaintiff's property at 1232 Beacon Street from St. Paul Street, Plaintiff must go down Section A and turn into Section B. To exit Plaintiff's property, Plaintiff must back its vehicle down Section B and into Section C before driving out on Section A.

11. By deed dated October 21, 1911, Frederick E. Johnston (“Johnston”) [Note 14] conveyed to Albert M. Beers and Ethel Beers Lot D as shown on the 1910 Plan (the “1911 Deed”). The 1911 Deed grants rights in the Easement [Note 15] as follows:

The ten foot passageway running across the rear of Lots A.B.C. and out over the northerly boundary of Lot A to St. Paul Street on said plan is established for the benefit of all lots shown on said plan with the passageway for all purposes for which passageways are commonly used in the Town of Brookline. Also the right to use the part marked “Passageway” in the rear of Lot F. Together with all others entitled thereto. [Note 16]

12. By deed dated August 13, 1915 and recorded with the Registry at Book 1319, Page 59, Johnston conveyed Lot F as shown on the 1910 Plan to Donald M. Hill, Calvin Austin, and Henry C. Wiley, as trustees under the will of William H. Hill, “[t]ogether with the right to use the ten foot passageway running across the rear of Lots A, B. and C on [the 1910 Plan] … [and] subject to such passageway rights as are mentioned or referred to in [a mortgage given to the Winchendon Savings Bank].” In said mortgage (the “Mortgage”) for Lot F, recorded with the Registry at Book 1140, Page 417 on April 30, 1910, Johnston conveyed to Winchendon Savings Bank Lot F [t]ogether with the right to use the ten foot passage-way shown on [the 1910 Plan] across lots A.B. and C [sic] to St. Paul street, [sic] for all purposes for which passage-ways may be lawfully used in the Town of Brookline. That part of the rear of the granted premises marked “Passage” north of the dotted line shown on [the 1910 Plan] is conveyed subject to the right of those having the right to use the said ten foot passageway and the eight foot passageway shown on [the 1910 Plan], to use the same as a turnout, and also to the right, hereby reserved to the grantor, his heirs and assigns to grant rights in said turnout and in said ten-foot passageway in any conveyance or conveyances he may make of lot G on [the 1910 Plan], or of any lots into which said Lot G may be subdivided. [Note 17]

13. The deed to the Sanieoff Trust defines rights in Section A as “for all purposes for which passageways are commonly used in the Town of Brookline,” and establishes Section C as “a turnabout for the benefit of all the lots [that] ehve [sic] the right to use said passageway.” The deed to the Lee Trust provides rights in Section A “for all purposes for which passageways are commonly used in the Town of Brookline,” and rights in Section C for “the right to use the irregularly shaped area at the rear of lot 'F' marked 'passage' on said plan, as a turnout.” The deed to Gelch conveys Lot F “[t]ogether with the right to use the ten foot passageway running across the rear of Lots A, B, and C on [the 1910 Plan] to St. Paul Street … [and] with the benefit of and subject to such passageway rights as are mentioned or referred to in [the Mortgage].” [Note 18]

14. Defendants' predecessors in title, and Defendants, their tenants, and/or third parties with Defendants' consent have used a portion of the Easement to park automobiles of various sizes and/or for the placement of trash receptacles since the 1950's. The parking practices and the placement of trash bins on the Easement have been the same since at least 1967.

15. A principal of 1236 LP, the family of Rita Barth, as well as a tenant and an employee of Gelch have parked on the Easement with the consent of 1236 LP, the Barth Trust, and Gelch, respectively; they have not experienced any difficulty parking or accessing the properties while cars have been parked or trash receptacles have been placed on the Easement.

16. A new plan titled “Easement Plan of Land” dated January 8, 2008 (the “2008 Plan”), was prepared by Daylor Consulting Group, Inc. for the Barth Trust. An employee of Daylor Consulting Group, John Anthony, met with Defendants in February, 2008 to discuss the parking practices on the Easement and to personally observe the Easement. At this meeting, Defendants and John Anthony observed a cargo van navigate the Easement while several cars remained parked on the Easement; the van traveled along Section A, turned around in Section C, and then proceeded back along Section A to exit. The 2008 Plan was prepared based upon this meeting. The 2008 Plan shows the Easement modified as follows: Section A remains the same on the Lee Trust property, but moves approximately ten feet internally (to the southeast) across the Barth Trust property and the Sanieoff Trust property, still retaining its ten foot width; Section B remains essentially the same; and Section C is substantially reduced in size to a ten-foot wide passageway.

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Plaintiff argues that Defendants do not have a right to park on the Easement, as the Easement was intended only for ingress and egress, and furthermore that Defendants’ parking as well as placement of trash barrels on the Easement interferes with Plaintiff’s access to its property. Defendants counter-argue that they may park and place trash bins on the Easement because the presence of parked cars and trash bins does not, in fact, interfere with Plaintiff’s ingress and egress. Moreover, Defendants argue, by adversely using the Easement for parking and the placement of trash barrels for more than twenty years, Defendants have acquired a prescriptive right to park and place trash bins on the Easement.

Additionally, Plaintiff contends that Defendants may not lawfully relocate or re-size the Easement because Defendants' proposed relocation will frustrate the purpose of the Easement, namely Plaintiff’s unimpeded access to and from Plaintiff’s property from St. Paul Street. Conversely, Defendants argue that the proposed relocation of the Easement will in no way hinder Plaintiff’s ability to access Plaintiff’s property via the Easement, and is therefore permissible. I will address each of these issues in turn.

Defendants’ Deeded Rights to the Easement.

Plaintiff argues that because the Easement was created for the purposes of access to the properties along the Easement from St. Paul Street, Defendants may only use the Easement for access, not for parking or trash collection. The 1911 Deed reserves the Easement “for the benefit of all lots shown on [the 1910 Plan] … for all purposes for which passageways are commonly used in the Town of Brookline.” The 1912 Deed delineates the easement rights as the “right to use … for all purposes for which passageways are commonly used in the Town of Brookline …, by which access is had to the granted premises from St. Paul Street … .” These deeds clearly confer upon the parties certain rights of access over each other’s properties, [Note 19] but does not clearly allow for parking on the Easement. Notably, the “right to pass and repass does not normally imply a right to park... .” Harrington v. Lamarque, 47 Mass. App. Ct. 371 , 375 (1997); See also, Delconte v. Salloum, 336 Mass. 184 , 189 (1957). Therefore, the 1911 and 1912 Deeds do not confer upon Defendants an explicit right to park on the Easement.

Defendants, however, are nevertheless free to make reasonable use of their property so long as such use does not interfere with Plaintiff’s easement rights. N.Y. Cent R.R. v. Ayer, 242 Mass. 69 (1922). Accordingly, as the servient estate holders, Defendants may only park on the Easement if doing so does not “…lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights.” Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 366 (1979). Faisal testified that Defendants’ habitual parking and placement of trash barrels makes Faisal’s ability to enter and leave Plaintiff’s property exceedingly difficult, as the parked cars take up space in the Easement, or impossible if there has been recent snowfall. [Note 20] However, Rigor da Eva, Hugh Gelch, Rudolph Barth, Barry Barth, Jeannine MaGuire, and William Doherty testified that neither they nor anyone else that they are aware of has experienced difficulty accessing the buildings via the Easement for decades, even when driving large vehicles, when most or all of the parking spaces were full, or when there was snow on the ground. Furthermore, Hugh Gelch, John Anthony and Barry Barth testified that at a meeting in February 2008, they witnessed a cargo van enter, turn around in and exit the Easement without difficulty, while numerous cars were parked along the retaining wall as well as behind the buildings. Faisal himself admitted that the parking and placement of trash barrels, either along the retaining wall or behind the Gelch Trust property, takes place on the Easement, but does not necessarily prohibit access to Plaintiff’s property. Indeed, according to Faisal’s testimony, only when snow was deposited on the Easement was Faisal unable to access Plaintiff’s property; as a result, it appears that the impact of snow upon access to Plaintiff’s property is distinct from the impact of parking on the Easement. [Note 21] The evidence therefore leads to the conclusion that access to the properties via the Easement is possible despite the parking and trash bins. Accordingly, I find that although Defendants do not hold a specific deeded right to park or place trash bins on the Easement, this practice does not unreasonably interfere with Plaintiff’s use of the Easement for access to Plaintiff’s property.

Prescriptive Rights of Parking.

A party claiming an easement right by prescription has “the burden of proving that the use of the passageway under consideration…[was] open, uninterrupted and adverse for a period of not less than twenty years.” Tucker v. Poch, 321 Mass. 321 , 323 (1947). Permissive use of land is inherently not adverse. Flagg v. Phillips, 201 Mass. 216 , 217-8 (1909). Testimony clearly establishes that parking and trash collection has taken place on the Easement on a regular basis since at least the 1950s, which would satisfy the open, uninterrupted, and twenty year requirements. Indeed, Plaintiff only contests Defendants’ claim of prescriptive rights on the grounds that the historic parking on the Easement was permissive, arguing that the previous owner of Plaintiff’s property approved of, and participated in, the parking.

To show that the historic parking on the Easement was permissive, Plaintiff relies upon affidavits submitted by Defendants in opposition to the Motion for Summary Judgment, in which Hugh Gelch and Rudolph Barth stated that they “have personal knowledge that the passageway has been used for parking continuously since 1994 … with the full knowledge and approval of plaintiff's predecessor in title.” However, when Hugh Gelch and Rudolph Barth testified at trial, they explained that by “full knowledge and approval” they meant that Plaintiff's predecessor was aware of, but never objected to the parking that was taking place behind the buildings. “The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse ... .” Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (quoting Flynn v. Korsack, 343 Mass. 15 , 18 (1961)), accord Wolfe v. Atkins, No. 08-P-2065, slip op. at 2 LEXIS 1177 (Mass. App. Ct. Nov. 12, 2009) Tucker v. Poch, 321 Mass. at 324; Truc v. Field, 269 Mass. 524 , 528-9 (1930); White v. Chapin, 94 Mass. 516 , 519 (1866). In other words, “...acquiescence, or tacit agreement, by an owner, to the adverse use of his property is not the same as granting permission and will not, by itself, defeat a claim of prescriptive rights.” Rotman v. White, 74 Mass. App. Ct. 586 , 590 (2009); See also Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008) (“‘Implied acquiescence is not necessarily the same as permission. On the contrary adverse possession may exist where there is possession with the forbearance of the owner who knows of such possession and did not prohibit but tacitly agreed thereto.’” (citations omitted) (quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. at 763)); Wolfe v. Atkins, No. 08-P-2065, slip op. at 2 LEXIS 1177 (finding adverse use where “there was no evidence (apart from silence) that the previous owner had given permission to [the plaintiff] (or others) to cross over the property.”); Robert v. Perron, 269 Mass. 537 , 541 (1930) (defendant’s holding of land “with the intent to assert a right in himself inconsistent with a right of [another party] to interfere with him, not pursuant to permission … and permissive only in the sense that the [other party] did not interfere when [defendant] began …” was adverse). Plaintiff did not present any additional evidence regarding Plaintiff or Plaintiff’s predecessor explicitly giving permission to park on the Easement. Rather, Defendants presented testimony that permission to park or place trash bins on the Easement was neither sought nor granted by Plaintiff or any of Plaintiff’s predecessors at any time. The evidence only shows that Plaintiff as well as Plaintiff's predecessors did not oppose the parties' parking and placement of trash barrels on the Easement. Accordingly, I find that Defendants have established a prescriptive right to park and place trash bins on the Easement.

Relocation of Easement.

In M.P.M Builders, the court adopted § 4.8 (3) of the Restatement of Property, which states, Unless expressly denied by the terms of an easement … the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

M.P.M Builders, 442 Mass. at 90 (quoting RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.8 (3) (2000)). The 2008 Plan shifts part of Section A ten feet to the southeast, re-sizes Section C into a ten-foot wide passage, [Note 22] and leaves Section B untouched. Plaintiff does not appear to oppose the proposed modification to Section A, and in any case the evidence clearly shows that relocating Section A ten feet internally will in no way hinder Plaintiff's ability to access Plaintiff's property. [Note 23] Plaintiff, however, opposes the proposed changes to Section C, arguing that such a significant reduction in the size of Section C will frustrate Plaintiff's ability to use the area as a turnaround, which is necessary for Plaintiff to be able to exit the property via the Easement. [Note 24]

The 2008 Plan was created based upon observations of where cars park on the Easement and, as a result, what parts of the Easement are actually used for access by cars driving in and turning around. In particular, John Anthony, on behalf of Daylor Consulting Group, conducted a site view in February, 2008, where, among other things, he observed what portions of the Easement a cargo van needed to traverse in order to drive down Section A, turnaround in Section C, and exit via Section A. [Note 25] Multiple witnesses testified that the parking practices on the Easement have been the same since at least 1967; throughout this period tenants, property owners, and contractors have driven cars, vans, trucks and cement mixers into and out of the Easement without difficulty or complaint. Although these witnesses did not specifically speak to Plaintiff's ability to access Plaintiff's property and it does not appear that any observations of cars pulling into Plaintiff's parking spot in particular were made in preparation of the 2008 Plan, Plaintiff has also failed to present evidence to show that the relocation would pose any clear impediment to Plaintiff's ability to access Plaintiff's property from the Easement. Evidence shows that parking behind the Gelch Trust property currently takes place on Section C, thereby reducing the usable size of Section C as a turnaround. Faisal testified that Faisal can still enter and exit Plaintiff’s property using the remaining open space in Section C. [Note 26] Therefore, it appears that Plaintiff does not require the full triangular area of Section C for ingress and egress, and Plaintiff has offered no specific evidence to show that reducing Section C to a ten-foot strip will be inadequate for the purposes of access. As such, since the 2008 Plan reflects the space that a variety of vehicles have been using in the Easement for ingress and egress to all of the properties on the 1910 Plan for over forty years, this court concludes that the proposed modifications to the Easement would not impede access. Based on this conclusion, I find that the 2008 Plan satisfies the requirements of M.P.M. Builders, that the Easement shall be relocated in accordance with the 2008 Plan, and that Defendants shall record the 2008 Plan at the Registry. [Note 27]

Trespass.

Although Plaintiff no longer appears to argue that Defendants trespassed by parking on the Easement or that Plaintiff is entitled to damages, this court will nevertheless address the issue, since it was raised in Plaintiff's complaint. Trespass occurs when a person “enters or remains upon land in the possession of another without a privilege to do so, created by the possessor's consent or otherwise.” Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n. 8 (1988). Since I have found that Defendants did not unreasonably interfere with Plaintiff's right to pass, I find that Defendants did not trespass by parking on the Easement.

Having found that no trespass occurred, there is no cognizable grounds on which Plaintiff may be entitled to damages. Counsel for Plaintiff stated that Plaintiff may be entitled to the revenues for the parking spaces that some of Defendants have been leasing. However, the parking spaces rented were on Defendants' properties, and any parking that took place on the Easement has been deemed lawful. Accordingly, I find that Plaintiff is not entitled to any damages.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 12, 2011