PAUL F. HOGAN and PATRICIA A. HOGAN vs. EDWARD C. GORDON, Trustee of 120 Racing Beach Trust

Plaintiffs Paul F. Hogan (“Hogan”) and Patricia A. Hogan (together, “Plaintiffs”) filed their Verified Complaint to Prevent Interference with Easement on April 1, 2008, seeking, pursuant to G.L. c. 185, § 1(k) and G.L. c. 231A, § 1, declaratory and injunctive relief to prevent Defendant Edward C. Gordon (“Gordon”), Trustee of 120 Racing Beach Trust, from interfering with Plaintiffs’ easement (the “Easement”) over property owned by Defendant. On the same day, Plaintiffs filed their Motion for Approval of Memorandum of Lis Pendens. Defendant filed his Answer and Verified Counterclaim on April 18, 2008, seeking to determine the Easement’s status, arguing relocation of the Easement, and alleging that there was no oral agreement, as stated by Plaintiffs, regarding the Easement. Defendant filed a Cross-Motion for Lis Pendens on the same day. A hearing was held on both motions for Lis Pendens on April 22, 2008, and both motions were allowed. [Note 1] Plaintiffs filed their Reply to Counterclaim on May 12, 2008. A case management conference was held on June 24, 2008. A pre-trial conference was held on September 9, 2010. On January 6, 2011, Defendant filed a Motion in Limine to Exclude Expert Witness Testimony Not Disclosed During Discovery and a Motion in Limine to Exclude the MacNichol Affidavit and Electronic Mail Communication. A site view and the first day of trial at the Falmouth District Court were held on January 10, 2011. At the commencement of the trial, Defendant filed his Trial Memorandum and Plaintiffs filed an Offer of Proof of excluded testimony of Barbara Cochran Whitney. [Note 2] The second day of trial was held on January 11, 2011, at the Land Court in Boston. At the end of the trial, Defendant filed a Request for Clarification of Lis Pendens. [Note 3] The parties filed post-trial briefs on February 24, 2011, at which time the case went under advisement.

Testimony for Plaintiffs was given by Paul Hogan (Plaintiff) and Carlos Peña (“Peña”) (civil engineer); testimony for Defendant was given by Edward Gordon (Defendant) and Michael McGrath (“McGrath”) (civil engineer and land surveyor). Thirty-eight exhibits were 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. F. Morris Cochran and Margaret S. Cochran (the “Cochrans”) owned registered property shown as Lots 60A and 60B on Land Court Plan 4794-P dated April 12, 1926 (the “1926 Plan”). Lot 60A was subdivided into Lots 228 and 229 as shown on Land Court Plan 4794-28 dated October 20, 1971 (the “1971 Plan”). By deed (the “1971 Deed”) dated November 19, 1971, the Cochrans sold Lot 228 to Edward F. MacNichol, Jr. (“MacNichol”) and Anne Ayer MacNichol (together, the “MacNichols”). [Note 4] The 1971 Deed states

There is granted as appurtenant to the above described lot an easement over Lot 229 [the Easement], for the purpose of allowing repair of rip-rap on the shore and there is reserved to the grantors an easement over the granted premises [Lot 228] for the same purpose of repairing rip-rap on the shore.

2. MacNichol, his wife having died in 1996, deeded Lot 61 and Lot 228 (together, “Defendant Property”) to Defendant on September 15, 1999. MacNichol has since died. This deed included a reference to the Easement and stated that the westerly boundaries of Lot 61 and Lot 228 were the mean high water mark for Buzzards Bay. [Note 5] Defendant Property is known as 120 Racing Beach Avenue, Falmouth. Defendant’s title is registered as Certificate of Title No. 154816, which includes a reference to the Easement.

3. The Cochrans conveyed Lots 60B and 229 (together, “Plaintiff Property”) to Robert E. Sanctuary and Nancy R. Sanctuary by deed dated September 23, 1977. This deed stated that the westerly boundaries of Lot 60B and Lot 229 were the mean high water for Buzzards Bay. [Note 6] This deed did not reference the Easement, nor did any subsequent deed, including the deed from Roberta P. Clark, Trustee of the Roberta P. Clark 1995 Revocable Trust to Plaintiffs dated April 24, 1998. [Note 7] Plaintiffs learned of the Easement when they purchased their home. Plaintiff Property is known as 112 Racing Beach Avenue, Falmouth. Plaintiffs’ title is registered as Certificate of Title No. 148211.

4. Plaintiffs’ house is located entirely on Lot 60B. The very northern end of the house consists of a garage with an entrance opening up onto Lot 229. A circular gravel driveway runs in front of the house and garage with entrances from Racing Beach Avenue (the “Road”) on both Lot 229 and Lot 60B.

5. Defendant’s house is located in the middle of Lot 61. An enclosed pool is located in Lot 61’s southwest corner. A paved driveway runs from the Road at a slight angle over the southern part of Lot 61 to the front of Defendant’s house.

6. Plaintiff Property and Defendant Property are located on a bluff overlooking Buzzards Bay to the west, with a steep slope leading to the beach and ocean. The Road runs along both properties on the east. A rip-rap wall of large boulders extends from the top of the slope to the beach and protects both properties from the ocean. The rip-rap on Plaintiff Property ends approximately twenty-five feet short of the property’s southerly boundary and is made of fitted stones except for the first four feet beginning at the boundary line between the two properties, which is made of mortared stones. The rip-rap on Defendant Property is made entirely of mortared stones and runs the entire length of Defendant Property with a stairway near the northerly boundary providing access from the top of the slope to a jetty. A second jetty on Defendant Property is located just south of the boundary between Lot 61 and Lot 228. Plaintiffs’ house is approximately four feet from the top of the rip-rap at its closest point; Defendant’s house is over forty feet from the top of the rip-rap.

7. Both Lot 228 and Lot 229 are approximately fifty feet wide. Aerial photographs from 1950, 1968 and 1975 show that both lots were undeveloped when the Easement was created. Aside from a few plantings and vegetation, Lot 228 remains undeveloped. Today, a stone wall on Lot 229 forms a small portion of the lot’s northerly boundary [Note 8] and the gravel driveway provides access to Plaintiffs’ garage from the Road. A separate four-foot high stone retaining wall runs north perpendicular from the garage entrance along the westerly end of the driveway, ending just short of Lot 229’s northerly boundary. An eight-foot wide concrete ramp leads west from the driveway to a slightly elevated area with landscaping behind the retaining wall. Hogan constructed both walls, but did not otherwise extend the house’s footprint. The remainder of Lot 229 is undeveloped.

8. On September 24, 1998, Plaintiffs filed a Notice of Intent with the Conservation Commission to repair the rip-rap wall on Plaintiff Property. The Conservation Commission issued an Order of Conditions on November 12, 1998 for such repair that required Plaintiffs to perform repairs by hand or with small vehicles. Plaintiffs brought in chinking stones [Note 9] with a Bobcat machine and wheelbarrow to place new stones by hand in the empty spaces where old stones had been washed away. Larger equipment was unnecessary and all work took place on Lot 60B. Plaintiffs used Lot 229 and did not require access from Lot 228. [Note 10] Plaintiffs had performed similar repairs on previous occasions.

9. By decision dated June 20, 2003, the Barnstable Superior Court, in Gordon v. Zoning Board of Appeals of Falmouth (BACV # 2000-00508) (the “Superior Court Case”), determined that under the Falmouth zoning bylaws Lot 228 was buildable only in combination with Lot 61 and not separately. [Note 11] Hogan intervened as a defendant. The Appeals Court affirmed the Superior Court’s decision on July 1, 2004. Gordon v. Zoning Bd of Appeals of Falmouth, 61 Mass. App. Ct. 1115 (2004).

10. On November 30, 2007, Defendant filed a Notice of Intent with the Falmouth Conservation Commission (the “Conservation Commission”) to add to the existing house on Lot 61 and cover a significant portion of Lot 228 (the “Addition”). Defendant filed a Plan of Proposed Addition and Site Modifications dated November 30, 2007 (the “2007 Plan”) with the Notice of Intent. A related landscape plan prepared by Horiuchi Solien dated December 5, 2007 also shows the Addition. Defendant received an Order of Conditions from the Conservation Commission that Plaintiffs subsequently challenged with the Department of Environmental Protection and in Barnstable Superior Court in Hogan v. Town of Falmouth Conservation Commission (BACV # 2008-00504). The Superior Court dismissed Plaintiffs’ challenge for lack of standing, which the Appeals Court affirmed on January 31, 2011. Hogan v. Town of Falmouth Conservation Comm’n, 78 Mass. App. Ct. 1124 (2011).

11. The Addition would extend the southern end of Defendant’s house and would also add a second paved driveway to the south of the existing driveway, more rear patio space and landscaping along the sides and rear of the house. The Addition would occupy part of Lot 228 and come within twenty feet of Lot 229’s northerly boundary at its closest point. The remaining distance to the boundary of Lot 229 would be covered by a four-foot stone walkway, nearly twelve feet of plantings and existing vegetation. Even with the Addition, a space of approximately 2,700 square feet in the southwest corner of Lot 228 would remain free of structures and mostly clear of landscaping.

12. McGrath became aware of the Easement when he surveyed Defendant Property, but he did not reference it in the 2007 Plan. Neither McGrath nor Defendant spoke with Plaintiffs about the Addition’s potential impact on the Easement. Defendant never discussed with Plaintiffs the existence or potential use of the Easement for mending the rip-rap walls. [Note 12]

13. Neither party has used the Easement for repairing the rip-rap, but Defendant did have the rip-rap on his property inspected on several occasions.

14. When planning the repair of rip-rap, the method of access and the equipment and materials employed differs with each particular site. Depending on the site conditions, sites may be reached by barge, [Note 13] from the upland area or the beach at the foot of the rip-rap.

15. To access the rip-rap on Lot 229, the stone retaining wall could be removed and replaced after construction or built over temporarily with a gravel ramp. To access Lot 228, the Conservation Commission would require any disturbed vegetation to be replaced.

16. The boundary line between the two properties goes through some of the armor stones, the large boulders that comprise the bulk of the rip-rap, such that repairing the rip-rap on Lot 229 requires accessing approximately four feet of rip-rap on Lot 228 and vice-versa.

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At trial, this court did not rule on Defendant’s two motions in limine. In his Motion in Limine to Exclude Expert Witness Testimony Not Disclosed During Discovery, Defendant seeks to exclude Peña’s testimony. Defendant argues that even though Peña had been identified as an expert witness at the pre-trial conference, Plaintiffs did not identify the substance of Peña’s expected testimony or answer related expert interrogatories. See Mass. R. Civ. P. 26(b)(4)(A)(i) (for experts a party “expects to call . . . at trial,” the party must supply details “of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion”). Defendant argues that Plaintiffs described Peña’s expected testimony in the pre-trial memo with one cursory sentence; in comparison, Defendant provided extensive details of McGrath’s expected testimony even though McGrath was not subject to interrogatories. Defendant argues that even if Plaintiffs had initially believed the case was appropriate for summary judgment, which would have made their description of Peña’s expected testimony sufficient, the establishment of a trial date reinforced Plaintiffs’ continuing duty to supplement their description of Peña’s expected testimony. See Mass. R. Civ. P. 26(e)(1)(B).

Courts have “broad discretion” when deciding whether to allow expert testimony in cases such as this. See Elias v. Suran, 35 Mass. App. Ct. 7 , 10 (1993), rev. denied, 416 Mass. 1106 (1993). “[T]he court’s exercise of its discretion to bar the expert’s testimony should be based on a careful consideration of, inter alia, whether the opposing party is unfairly surprised or will suffer undue prejudice, whether lesser sanctions are available, and how material the testimony would be to the disposition of the case.” White v. Johnson, 2004 Mass. App. Div. 9 , 12 (2004).

At the pre-trial conference, if not earlier, Defendant was at least aware that Plaintiffs intended to call Peña as an expert witness and of the general outline of Peña’s expected testimony about seawall construction. Moreover, Defendant had already retained McGrath as his own expert on the subject. Thus, Defendant could not have been unfairly surprised or unduly prejudiced and Defendant makes no such a claim. Most importantly, Peña’s testimony is material to the case because it describes how the rip-rap can be repaired, which is the Easement’s main purpose. Therefore, I DENY Defendant’s Motion in Limine to Exclude Expert Witness Testimony Not Disclosed During Discovery.

In his Motion in Limine to Exclude the MacNichol Affidavit and Electronic Communication, Defendant seeks to exclude the Affidavit of Dr. Edward F. MacNichol, Jr. dated February 3, 2003 (the “Affidavit”) and an email from MacNichol to Hogan dated January 9, 2003 (the “Email”). Defendant argues that these documents are not relevant to interpreting the Easement, the documents represent facts of an oral agreement that would violate the Statute of Frauds and are improper parol evidence for interpreting the Easement. Plaintiffs argue that the Email and the Affidavit are relevant because they may assist in interpreting the Cochran’s intent in granting the Easement. Plaintiffs also argue that the documents are permissible exceptions to the hearsay rule under G.L. c. 233, § 65, because they are the statements of a deceased person.

“[A]ll relevant evidence is admissible unless barred by an exclusionary rule.” Commonwealth v. Vitello, 376 Mass. 426 , 440 (1978). Relevant evidence has any “rational tendency to prove an issue in the case.” Commonwealth v. Fayerweather, 406 Mass. 78 , 83 (1989). Parol evidence may be admissible to interpret an ambiguous document, but evidence of prior or contemporaneous written or oral agreements that “contradict, vary or broaden an integrated writing” is inadmissible. Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 , 496 (1997); see also General Robert Indus., Inc. v. Spence, 362 Mass. 751 , 753-54 (1973). Hearsay is “inadmissible unless it falls within an exception to the hearsay rule.” Commonwealth v. Rice, 441 Mass. 291 , 305 (2004). A deceased declarant’s statements are admissible as an exception to the hearsay rule if made in good faith and upon the declarant’s personal knowledge. G.L. c. 233, § 65.

The Affidavit and the Email describe only the buildability of Lots 228 and 229 and do not refer to or provide any information about the Easement. Plaintiffs argue that the Affidavit and the Email may assist in ascertaining the grantor’s intent; however, both documents describe only the ability to build on Lot 228 and neither document refers to or provides any information about the Easement or accessing the rip-rap. Furthermore, the Affidavit and Email contain no direct information about the intent of the grantors (the Cochrans) regarding the Easement. Instead, they are statements by a grantee (MacNichol) regarding the grantees’ own behavior. The 1971 Deed is clearly an integrated writing and the parties could easily have included restrictions on building in the 1971 Deed. Thus, the Affidavit and the Email have no rational tendency to prove any facts regarding the Easement and are not relevant. [Note 14] Therefore, I ALLOW Defendant’s Motion in Limine to Exclude the MacNichol Affidavit and Electronic Communication.

The main issues are the Easement’s scope, specifically the Easement’s location, and whether the Addition would interfere with the Easement. Defendant makes alternative arguments that the Easement is personal rather than appurtenant and that the Easement was abandoned. [Note 15] Defendant also seeks a declaration that no oral agreement prohibits development on Lot 228. I shall examine each of these issues in turn.

I. The Easement’s Scope.

Plaintiffs argue that the Easement’s plain language gives them unimpeded access from the Road over the entirety of Lot 228 to reach the rip-rap. Plaintiffs assert that any development by Defendant on Lot 228, including the Addition, would infringe on the Easement because equipment and supplies for repairing the rip-rap would require the full one hundred-foot width of the Easement (fifty feet over Lot 229 and fifty feet over Lot 228). Defendant argues that the Easement’s language grants only limited access on Lot 228 from the shore, not a right of way from the Road.

If the Easement’s language is ambiguous, Plaintiffs argue that, given that the rip-rap straddles the property line and extends from the shore up the slope to the top of the bank, and acknowledging Peña’s testimony about rip-rap repair, the Easement must still be construed to provide access from the Road over the entirety of Lot 228. Conversely, Defendant argues that in such a case, a reasonable interpretation based on the available evidence would allow only minor intrusions on Lot 228 for repair work taking place at the base or top of the rip-rap. Defendant argue that at most, the Easement provides access over Lot 228 from the Road but is limited to the minimum width necessary for the purposes of repairing the rip-rap, and only if such a reading of the Easement would not inhibit Defendant’s right to construct the Addition.

“The party asserting an easement . . . has the burden of proving the nature and extent of any such easement.” Levy v. Reardon, 43 Mass. App. Ct. 431 , 434 (1997) (quoting Foley v. McGonigle, 3 Mass. App. Ct. 746 , 746 (1975)). “In construing a deed it is the duty of the court to ascertain the intent of the parties from the language used in the light of the surrounding circumstances.” Brackett v. Pitcher, 296 Mass. 295 , 297 (1936). “[I]f the words are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense.” World Species List – Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 309 (2009) (quoting Mass. Mun. Wholesale Elec. Co. v. Springfield, 49 Mass. App. Ct. 108 , 111 (2000)). If the easement’s language is deemed ambiguous, a reasonableness standard determines the easement’s scope. Tehan v. Sec. Nat’l Bank of Springfield, 340 Mass. 176 , 186-87 (1959); Western Mass. Elec. Co. v. Sambo’s of Massachusetts, Inc., 8 Mass. App. Ct. 815 , 824-25 (1979). The reasonableness analysis is not restricted by deed language; rather, “[t]he extent of an easement depends on the circumstances of its creation . . . . [T]he grant or reservation ‘must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.” Lowell v. Piper, 31 Mass. App. Ct. 225 , 230 (1991) (quoting Mugar v. Mass. Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990) (internal citations omitted)).

A. The 1971 Deed Language.

The 1971 Deed states only that the Easement provides access “over [Lot 228] for the same purpose of repairing rip-rap on the shore.” [Note 16] Plaintiffs argue that the lack of language limiting the Easement’s width means that the Easement is over the entirety of Lot 228. Defendant, however, argues that the Easement must provide access only from the shore on Lot 229 and not the Road because the 1971 Deed does not explicitly mention the Road. Defendant argues that the 1971 Deed did not contemplate access from the Road because repair easements that also contain a right of passage state that the holder has both a right to repair and a right to pass and repass. See e.g. Phipps v. Johnson, 99 Mass. 26 , 28 (1868) (“the right and privilege to pass and repass over the above granted premises for the purpose of repairing his building”); Fortier v. Town of Essex, 52 Mass. App. Ct. 263 , 263-64 (2001) (the right “to maintain and repair the presently existing drainage ditch on our properties including access thereto”).

“Over” may mean either (1) “[a]bove and across from one end . . . to the other” or “[t]hrough the extent of; all through” or (2) “[o]n the other side of.” American Heritage College Dictionary 990 (4th ed. 2002). This would suggest that the Easement provides some form of access across Lot 228 for the purpose of repairing rip-rap. The 1971 Deed, however, does not state whether the Easement provides access over Lot 228 from the Road, Lot 229 or both.

The words “on the shore” must also be reconciled. This phrase has two potential interpretations. First, the phrase may describe the rip-rap’s location as being on the shore, in contrast to rip-rap located elsewhere. Alternatively, the phrase may mean that repairs to the rip-rap must be done on the shore or that repairs are limited to rip-rap on the shore and not rip-rap further upland. [Note 17]

Thus, I find that the 1971 Deed is not clear as to the Easement’s location and scope. As a result, I shall address a reasonableness analysis of the Easement based on the record.

B. Reasonableness Analysis of the Easement.

Defendant argues that the phrase “repairing the rip-rap on the shore” fixes the Easement’s location as being on the shore and, thus, precludes access from the Road. Plaintiffs argue that the Easement contemplates upland access on Lot 228 and not just shore access. Plaintiffs argue that if the Easement were limited to shore access, Defendant would have no need for an easement over Lot 229 only for shore access because Defendant does not have an easement to cross Lot 60B, which would be required to access Lot 229 by shore. [Note 18], [Note 19]

Plaintiffs’ expert Peña testified that repair work should take place from the upland instead of the shore because more direct access was possible from upland areas and shore access would require permits to construct a wider path for construction vehicles. Plaintiffs argue that, relative to Lot 228, the Addition would impede the Easement because Peña testified that having the full one hundred-foot width of both lots would be helpful for repairing catastrophic failures to the rip-rap that would require large piles of materials and several vehicles to perform the repairs; however, Peña conceded that vehicles could reach the top of the rip-rap by temporarily dismantling the wall on Lot 229 or building a temporary gravel ramp. Peña also conceded that the equipment, materials and method of access required for rip-rap repair depends on the circumstances at each site and that vehicles could pass through a narrower space as long as they had sufficient space to operate.

Defendant’s expert McGrath testified that repairs to the rip-rap on Plaintiff Property from the shore would be more suitable and practical than from the upland. McGrath proposed an approach from the southern end of Plaintiff Property because the rip-rap terminates short of the property line, leaving a gap where vehicles can reach the shore. If more space were needed, the southern tip of the rip-rap could be destroyed and later rebuilt. Vehicles could traverse the beach by laying down mats but large boulders would have to be displaced temporarily. McGrath asserted that the shore would provide ample space for vehicles and material and require relatively minimal permitting requirements. [Note 20] Although Peña testified that cranes operating from the upland would be able to complete the repairs, McGrath stated that cranes would require a spotter and that working from the shore would be better because it would provide a direct view of the rip-rap. McGrath testified that the best way to repair the rip-rap on Defendant Property would be to build a ramp down to the beach over the rip-rap at the northern point on Defendant Property where there is currently a set of stairs.

The record contains no evidence as to whether the Cochrans repaired their rip-rap using shore access or upland access or how they made repairs to the rip-rap, let alone if they made any repairs at all. [Note 21] If, as Defendant argues, the phrase “on the shore” specifies shore access and that the rip-rap can only be repaired from the shore, the grantors surely could have used much more specific language instead of “over [Lot 228]” to limit the Easement’s scope. Nothing in the record suggests that the rip-rap can be repaired only from shore. McGrath testified only that repairing the rip-rap from the upland would be more difficult than repairs from the shore because of the need to take equipment over the wall on Plaintiff Property, but he did not state that upland repairs were impossible. As a result of the foregoing, I find testimony from the two experts inconclusive as to interpretation of the Easement, and I find that the most reasonable interpretation of the Easement contemplates both shore and upland access.

The amount of land on Lot 228 that may be used for the Easement is unclear because the 1971 Deed simply provides access “over [Lot 228].” A general reference, however, “does not create an easement in the whole of the vacant land, but one that is limited to such part of the so called vacant land as is reasonably necessary for the use and enjoyment of the easement so granted.” Tidd v. Fifty Associates, 238 Mass. 421 , 430 (1921). The Easement’s scope must be determined by “what is reasonable under the conditions disclosed.” McKenney v. McKenney, 216 Mass. 248 , 251 (1913).

Aerial photography shows that when the Easement was created, both Lot 228 and Lot 229 were undeveloped with some vegetation such that either lot would have provided access from the Road to the rip-rap once the vegetation had been removed. The aerial photographs also show that at the time, Lots 61 and 60B were large areas of open space. Thus, at the time the Easement was created, the Cochrans would not have needed to access the entirety of Lot 228 to access the rip-rap because Lot 229 would have provided sufficient access to the rip-rap and they would only have needed to access approximately four feet of rip-rap on Lot 228 at the boundary line. The Cochrans also could have used Lot 60B to store materials and machinery. As a result, it is unlikely that the grantors would have intended for the Easement to allow access to the entirety of Lot 228. Therefore, I find that the Easement provides access over Lot 228 from either Lot 229 or the Road, but that it is limited only to the area of Lot 228 reasonably necessary to repair the rip-rap.

II. Relocating the Easement.

Defendant argues that no matter how the Easement is defined, it can be lawfully relocated to make room for the Addition as ordinary development of Defendant Property without burdening Plaintiffs’ use of the Easement. Plaintiffs argue that the Easement cannot be narrowed or relocated because the Addition would impede upland access to repair the rip-rap and, thus, Defendant is prohibited from constructing the Addition. The Addition is limited to the upland portion of Lot 228; therefore, the Addition has no impact on the Easement with regard to shore access from Lot 229. Thus, the issue of relocation pertains not to the entire Easement but to only upland access.

An easement must serve a particular objective and does not grant the holder veto power over other uses of the servient estate that do not interfere with that objective. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004). A servient owner may “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” so long as such 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.” Id. at 90 (citing Restatement (Third) of Property (Servitudes) § 4.8(3) (2000)). This rule “strikes an appropriate balance between the interests of the respective estate owners by permitting the servient owner to develop his land without unreasonably interfering with the easement holder's rights.” Id. at 91. Although Plaintiffs argue that narrowing the easement is not permissible, M.P.M Builders clearly states that reasonable changes can be made to “the location or dimensions of an easement.” Id. at 90. [Note 22] Because neither party disputes whether the Addition is normal development of Defendant Property made at Defendant’s expense, I will concentrate on the three remaining factors.

To repair the rip-rap on Plaintiff Property from the upland, Peña testified that construction vehicles such as cranes, front loaders and supply trucks would need to use Lots 229 and 228. Peña’s testimony, however, implied that Lot 229, not Lot 228, would be the way to access the rip-rap from the Road because he described in detail how vehicles would navigate the stone wall that extends across most of Lot 229’s fifty foot width. Peña did not testify that the entire width of both lots was required to repair the rip-rap; rather, he stated that “you could certainly use the full 100-feet width.” Even if the Easement did provide access across Lot 228 from the Road, the Addition would not hinder such access. According to Peña, the maximum width of any vehicle used would be fourteen feet; however, the closest the Addition would come to the property line is twenty feet, thus, providing ample clearance. In addition, as discussed, supra, this would allow a forty-foot right of way combining the twenty foot strip on Lot 228 with the twenty-foot strip on Lot 229. Some portion of the twenty-foot strip would contain landscaping, a stone walkway and a driveway (as it does on Plaintiff Property), but Plaintiffs do not argue that traversing such terrain would be more difficult than if Lot 228 remained undeveloped.

Finally, Plaintiffs are hard-pressed to argue that the Addition would interfere with their use of the Easement because, with their improvements on Lot 229, Plaintiffs have already impeded Defendant’s access to the reciprocal easement across Lot 229. Parties who violate the very restriction they seek to enforce against others in the same way and to the same extent cannot justly complain because they do not have “clean hands” with regard to the subject of their claim for relief. Loud v. Pendergast, 206 Mass. 122 , 124 (1910); see also Weintraub v. L & F Realty Co. Inc., 331 Mass. 711 , 713-14 (1954). Although Plaintiffs’ additions to Lot 229 do not completely block access to the rip-rap, the retaining wall runs nearly the entire width of Lot 229, making it harder to access the rip-rap.

As such, the Addition would not significantly lessen the Easement’s utility, increase the burden on Plaintiffs in using and enjoying the Easement or frustrate Plaintiffs’ ability to repair the rip-rap. [Note 23] Therefore, I find that relocating the Easement meets the requirements of M.P.M. Builders and that the relocated Easement runs the entire length of Lot 228 from its easterly boundary to its westerly boundary, i.e. from the Road to the mean high water mark, and that the Easement’s width is twenty feet from the boundary separating Lot 228 and Lot 229. [Note 24] This finding does not preclude Defendant from placing landscaping, plantings and a stone walkway on Lot 228 as proposed in the 2007 Plan, as Plaintiff has already developed the corresponding area on Lot 229.

III. Whether the Easement is Appurtenant or Personal.

Defendant argues that the 1971 Deed’s language shows the Easement was personal to the Cochrans and, thus, that the Easement could not have passed to Plaintiffs absent such language in every subsequent deed in the chain of title. Plaintiffs argue that the Easement is appurtenant to Lot 229 and, thus, it passed to Plaintiffs despite not being referenced in any prior deeds.

An easement is appurtenant if it was created to benefit and does benefit a possessor of land in using the land. Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996). “An easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” Willets v. Langhaar, 212 Mass. 573 , 575 (1912); Dennis v. Wilson, 107 Mass, 591, 592 (1871). A grantor’s intent in making the deed is derived from the deed’s language considered in light of the attendant circumstances. Patterson v. Paul, 448 Mass. 658 , 665 (2007); see also Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). “In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.” G. L. c. 183, § 15.

The 1971 Deed describes the Easement over Lot 229 as appurtenant but states that the Easement over Lot 228 is “reserved to the grantors,” which could suggest that one easement was appurtenant and the other personal. Nothing in the record, however, indicates that the Cochrans indicated such a discrepancy between two otherwise reciprocal easements. Having the Easement be personal to the Cochrans makes little sense under the circumstances because any successor to the Cochrans would have needed the Easement to provide access to repair the rip-rap. Additionally, the Easement is referenced in Defendant’s certificate of title, indicating that the Easement could not have been personal to either the Cochrans or the MacNichols; the Cochrans sold Plaintiff Property in 1977. Being appurtenant, the Easement would pass to Plaintiffs even though it was not explicitly referenced in their chain of title. See G. L. c. 183, § 15. Therefore, I find that the Easement is appurtenant to both Lot 228 and Lot 229 and was conveyed to Plaintiffs in their deed.

IV. Abandonment of the Easement.

Defendant argues that Plaintiffs have no rights in the Easement because Plaintiffs abandoned the Easement by developing Lot 229 and using the southern portion of Lot 60B instead of the Easement to repair their rip-rap in 1998. Plaintiffs argue that such actions are insufficient to prove their intent to abandon the Easement.

An easement is abandoned if there is an “intention never again to make use of the easement . . . .” Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). Proving abandonment is a significant burden because it requires showing “a present intent to relinquish the easement or a purpose inconsistent with its further existence.” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (quoting Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 272 (1913)). “Nonuse, by itself, however long continued, will not operate to extinguish an easement.” The 107 Manor Avenue, LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009) (citing Desotell v. Szcygiel, 338 Mass. 153 , 159 (1958)).

Although consistent with nonuse, Plaintiffs’ actions do not amount to intent to abandon the Easement. Hogan testified that he did not use the Easement to repair the rip-rap in 1998 because it was unnecessary to use Lot 228 to perform the repair work. One instance of using another form of access instead of the Easement is insufficient show intent to never again use the Easement. Plaintiffs’ improvements on Lot 229 are not sufficient evidence of abandonment because both parties’ experts acknowledged that the rip-rap could still be accessed. Therefore, I find that Plaintiffs have not abandoned the Easement.

V. Oral Agreement to Restrict Development on Lot 228.

Defendant seeks a declaration that no oral agreement precludes development on Lot 228. Plaintiffs argue that the Affidavit and the Email show that the Cochrans and the MacNichols orally agreed never to build on Lot 228 or Lot 229; however, the Affidavit and the Email are inadmissible, see supra. Moreover, Plaintiffs appear to have relied on the alleged oral agreement only to prove the intent of the parties to the 1971 Deed and not as a separate binding covenant. [Note 25] Defendant denies that any such agreement exists and nothing in the record points to any such agreement. Therefore, I find that no oral agreement precludes development on Lot 228. [Note 26]

Plaintiffs and Defendant shall prepare a plan and record such plan with the Barnstable County Registry of Deeds within thirty days of the date of this Decision to show the relocation and modification of the Easement.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: October 7, 2011