MARGOT XARRAS, TRUSTEE OF HIGHLAND MANOR REALTY TRUST and JAMES L. XARRAS, TRUSTEE OF UNION SQUARE REALTY TRUST v. JAMES S. WHITNEY, TRUSTEE OF 557 LANCASTER STREET REALTY TRUST

Plaintiffs Highland Manor Realty Trust (“Highland Manor”) and Union Square Realty Trust (“Union Square”) (together, “Plaintiffs”) filed their unverified Complaint on November 7, 2008, seeking (1) declaratory judgment relative to rights in an easement across property owned by 557 Lancaster Street Realty Trust (“Defendant”), (2) removal of granite curbing by Defendant in the easement area, and (3) alleging trespass by Defendant across Plaintiffs’ properties in the installation of electrical service cables. Plaintiffs filed a Motion for Temporary Restraining Order on February 4, 2009, which was subsequently withdrawn. [Note 1] A case management conference was held on February 10, 2009. [Note 2] Defendant filed its Motion for Summary Judgment on October 25, 2010, together with supporting memorandum, Statement of Material Facts, exhibits, Affidavits of Larry R. Sabean (Land Surveyor) and James M. Donovan (Attorney), and an Affidavit of James S. Whitney (“Whitney Affidavit 2”). On November 24, 2010, Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavits of James L. Xarras (“Xarras Affidavit 2”), Joseph M. Gibbons (Truck Driver), Pelino Camapagna (Delivery Driver), and Leonard Mallard (husband of employee working on the Union Square Property, as hereinafter defined) (the “Mallard Affidavit”). Defendant filed its Opposition to Plaintiffs’ Cross-Motion on December 6, 2010, together with a Second Affidavit of James S. Whitney. [Note 3] A hearing was held on both motions on January 19, 2011, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c). I find the following material facts are not in dispute:

1. Leominster Manufacturers Trust, Inc. owned a large parcel of land in Leominster, Massachusetts, as shown on a plan titled “Land in Leominster, Mass. Owned by Leominster Manufacturers Trust, Inc.” dated July 3, 1946, and recorded with the Worcester Northern District Registry of Deeds (the “Registry”) at Plan Book 77, Page 9, and prepared by William P. Ray (the “1946 Plan”). [Note 4] By deeds dated December 10, 1946 (the “1946 Deeds”) and recorded with the Registry at Book 625, Page 303, Leominster Manufacturers Trust, Inc. conveyed easement rights to several grantees, including the predecessors in title to the parties to this action, all of the 1946 Deeds having language as follows:

the following perpetual rights and easements to be exercised in common with all others to whom the Grantor has or may grant the same or similar rights:

1. To use for the purposes of travel, all roadways upon premises owned by the Grantor under deed of E. I. Du Pont de Nemours and Company to Grantor recorded Worcester Northern District Registry of Deeds, Book 614, Page 428 which roadways are to be ascertained by reference to that part showing roads of a certain plan in five sheets prepared for Grantor by William P. Ray, C.E. dated July 3, 1946. [Note 5]

2. By deed dated October 10, 2003, and recorded with the Registry at Book 5002, Page 284, (the “Menchi Deed”) Clevio U. Menchi conveyed a small portion of property labeled as the Plastic Turning Co. Inc. on the 1946 Plan to Defendant (“Defendant Property”). The 1946 Plan shows the property labeled Plastic Turning Co. Inc. as a roughly triangular parcel in the easterly (lower left-hand) corner fronting on both Lancaster Street and Malburn Street and containing eight acres 42,340 square feet, with greater detail shown on pages 1 (77.9B), 2, and 3 (77.9D). The area comprising Defendant Property is shown in greater detail on Page 1 (77.9B) of the 1946 Plan. The boundaries of Defendant Property are shown on “Building Plot Plan in Leominster, Massachusetts” dated February 25, 2004, and recorded with the Registry at Book 5002, Page 284 (the “2004 Plan”). [Note 6] Defendant Property contains 26,100 square feet, according to the 2004 Plan. Defendant Property fronts on Lancaster Street, but does not extend as far south as Malburn Street, its southerly boundary being the thread of Fall Brook.

3. By deed dated March 23, 2004, and recorded with the Registry at Book 5187, Page 177, Superior Comb Company, Inc. conveyed property labeled as Pyrotex Leather Company on the 1946 Plan, containing one acre 2814 square feet (the “Highland Manor Property”) to Highland Manor. It is improved with one building.

4. By deed dated July 6, 2007 (the “Banknorth Deed”), and recorded with the Registry at Book 6534, Page 239, TD Banknorth, N.A. conveyed 8.06 acres of land to Union Square (the “Union Square Property”). The Union Square Property includes the majority of the property labeled as the Plastic Turning Co. Inc. on the 1946 Plan. [Note 7] According to the Banknorth Deed, the Union Square Property is shown on a plan titled “Compiled Plan, Land in Leominster, Mass. Owned by George K. Progin et als, Trustees”, dated January 11, 1980, recorded with the Registry at Plan Book 239, Page 19, and prepared by William R. Bingham (the “1980 Plan”). [Note 8] The Union Square Property abuts Defendant Property on the north and is improved with several buildings.

5. Included in the easement rights conveyed in the 1946 Deeds, and labeled “Gravel Road” on the 1946 Plan, was a gravel road (the “Gravel Road”) crossing what is now Defendant Property and connecting Lancaster Street with what is now the Union Square Property and a network of roads serving the Highland Manor Property. As shown on the 1946 Plan, the Gravel Road ran westerly from Lancaster Street along the north side of a single building (the “Former Building”) on Defendant Property, which building was divided into parts labeled “1A” and “1B”. [Note 9]

6. Defendant Property is shown on the 2004 Plan, labeled as “MAP 443A LOT 3 (26,100 ± SF)”. As shown on the 2004 Plan, the Former Building no longer exists, but today would be on Defendant Property. [Note 10] At issue in this case is the right-of-way across Defendant Property corresponding to the Gravel Road (the “Deeded Easement”).

7. Since the early 1970s, no part of the Gravel Road has existed on Defendant Property.

8. Defendant Property contains approximately 26,100 square feet and has frontage on Lancaster Street (Route 117) in Leominster, Massachusetts.

9. Defendant Property is currently improved with one one-story concrete block building (the “Present Building”), which contains approximately 12,000 square feet of rentable space; on the 2004 Plan it is labeled “EXISTING 1 STOREY BLOCK BUILDING”. The Present Building is situated on the site of the Former Building, but is larger. [Note 11] The Present Building occupies all of the space occupied by the Former Building, as well as extending north and south. [Note 12] The Present Building has not changed in size or location for at least forty years. [Note 13]

10. The 1946 Plan shows the Deeded Easement running alongside the Former Building. The Deeded Easement would run through the Present Building as shown on the 2004 Plan.

11. Since the early 1970s, Defendant has had exclusive use of the portion of the Gravel Road now within the bounds of the Present Building.

12. Certain other roads connected to the Deeded Easement and shown on the 1946 Plan are also blocked by buildings, including roads on the Union Square Property.

13. Easement rights over Defendant Property were disputed in an action brought in the Land Court by Union Square’s predecessor, Union Products Realty Corporation (“UPRC”) [Note 14] (04 MISC 303265) (the “Prior Action”). [Note 15] UPRC and Defendant executed an Agreement for Judgment (the “Agreement for Judgment”) dated June 20, 2005, giving UPRC an easement over Defendant Property in a location other than the Gravel Road (the “Agreed Easement”). [Note 16] The Agreement for Judgment stated that “plaintiff releases any right of claim to area outside of created way . .” and that “[t]his Agreement for Judgment takes effect as a judgement on the merits, with prejudice, waiving rights of appeal and costs.”

14. The Agreed Easement is described in a sketch plan attached to the Agreement for Judgment (the “Sketch Plan”), and recorded with the Registry at Book 6827, Page 114. The width of the Agreed Easement is not specified. The Agreed Easement does not appear on any plan in the summary judgment record other than the Sketch Plan.

15. As described in the Agreement for Judgment and as shown on the Sketch Plan, the Agreed Easement runs southwesterly from Lancaster Street, overlapping both sides of the property line between Defendant Property and the Union Square Property. The Agreed Easement runs to the north of the Present Building and is closest to the Present Building at the Present Building’s northwest corner. The southerly boundary of the Agreed Easement is an apparently straight line running from the northwesterly corner of Defendant Property to Lancaster Street, passing through a point five feet northerly from a point on the north side of the Present Building that is two feet easterly from the Present Building’s northwest corner. [Note 17] The northerly boundary of the Agreed Easement is defined relative to the width of pavement existing at the time of the Agreement for Judgment. The Sketch Plan states:

Widening is 10' in from existing pavement. [Note 18] Widening starts at point A [Note 19] above and goes out to Lancaster Street.

Defendant’s easement rights are from the widened line (dotted above) southerly to the property line between [plaintiff and defendant].

Plaintiff’s easement rights are from Plaintiff’s easement line northerly to the property line between [plaintiff and defendant].

16. A number of employees and invitees of Union Square represented that the Union Square Property has been accessed for at least twenty years by means of a way approximately twenty feet wide running along the north side of the Present Building (the “Adjacent Way”). [Note 20]

The Gibbons Affidavit, dated November 19, 2010, states that the affiant made deliveries to the Union Square Property “from 1970 to 1972 and on a regular basis for the last 20+ years” (i.e., 1990-2010). The Camapagna Affidavit, dated November 18, 2010, states that the affiant has made deliveries to the Union Square Property “for the last 35 years” (i.e., 1975-2010). The Gibbons and Camapagna Affidavits both state that the affiants “would always and consistently” access the Union Square Property “by virtue of driving along the paved roadway, which is approximately twenty feet wide, that runs along the side of the [Present Building].” The Mallard Affidavit, dated November 18, 2010, states that the affiant is “familiar with” Defendant Property “as a result of” his wife’s employment from 1980 to 2005 on the Union Square Property. The Mallard Affidavit states that the affiant picked up his wife “on a regular basis for the last 30 years” on the Union Square Property, and “would always and consistently access [the Union Square Property] and observe the paved roadway, which is approximately twenty feet wide, that runs along the side of the [Present Building].” [Note 21]

The Adjacent Way is not shown on any plan in the summary judgment record. Xarras Affidavit 2, dated November 24, 2010, states that regular deliveries are made by trucks to the Union Square Property, and that “[f]or at least twenty years, the trucks accessed the buildings behind the Defendants [sic] property by virtue of the area shown as the Relocated Easement Area on the sketch attached hereto as Exhibit A [the Adjacent Way].”

17. Attached to Xarras Affidavit 2 as Exhibit A is a copy of the 2004 Plan with the location of the Adjacent Way drawn in by hand and labeled “Relocated Easement Area” (“Xarras Exhibit A”). As shown on Xarras Exhibit A, the Adjacent Way runs parallel to the north side of the Present Building and connects Lancaster Street to the Union Square Property. As shown on Xarras Exhibit A, the Adjacent Way’s southerly boundary appears to be perpendicular to Defendant Property’s westerly boundary and appears not to touch the Present Building, but to be a short distance north of it. [Note 22]

18. The area along the northerly side of the Present Building is used for parking in defined spaces and related activities in connection with Defendant Property. [Note 23]

19. There is granite curbing on the northerly side of Defendant Property. [Note 24]

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Plaintiffs claim a right-of-way (the Deeded Easement) over Defendant Property pursuant to the 1946 Deeds. In the alternative, Plaintiffs claim that the Deeded Easement was relocated to another location (the Adjacent Way) or that they have acquired a prescriptive easement in the Adjacent Way. To the extent that Plaintiffs argue that the Deeded Easement was relocated to the Adjacent Way or that they have acquired a prescriptive easement in the Adjacent Way, Plaintiffs allege that Defendant has obstructed access to Plaintiffs’ properties, especially by trucks, by installing granite curbing along the boundary between Defendant Property and Lancaster Street, and by providing striped parking spaces adjacent to and northerly of the Present Building. [Note 25] In addition, Plaintiffs claim that Defendant has trespassed in the installation of electrical service cables on the Union Square Property.

Defendant contends that Union Square’s claim to the Deeded Easement is barred by principles of res judicata, due to an earlier action that relocated the Deeded Easement to the Agreed Easement. Therefore, Defendant argues that the Agreed Easement is the only valid right-of-way that Union Square has over Defendant Property to reach the Union Square Property. Defendant further argues that any rights-of-way created by the 1946 Deeds were extinguished by abandonment because buildings today exist in the location of the Deeded Easement shown on the 1946 Plan. In the alternative, Defendant argues that it has extinguished the Deeded Easement by adverse possession. Defendant also maintains that the Deeded Easement was not relocated apart from any relocation to the Agreed Easement that may have resulted from the Agreement for Judgment. Therefore, Defendant asserts that any obstruction to any valid right-of-way that Plaintiffs have over Defendant Property resulted from Plaintiffs’ own actions, including placing trucks and heavy equipment on the Agreed Easement. Finally, Defendant denies that it has trespassed in the installation of electrical service cables on the Union Square Property. I shall look at each of these issues in turn.

Res Judicata.

As an initial matter, Defendant asserts that Union Square’s claim to the Deeded Easement is precluded by an action brought in the Land Court (04 MISC 303265) by Union Square’s predecessor (the Prior Action). [Note 26] The Prior Action was resolved in the Agreement for Judgment. [Note 27] The Sketch Plan clearly marks the boundaries of the Agreed Easement as defined by the Agreement for Judgment and clarifies its language. [Note 28] The Agreed Easement is not the Deeded Easement or the Adjacent Way. The Agreed Easement runs southwesterly from Lancaster Street along the entire northern boundary of Defendant Property. The Agreed Easement runs north of the Present Building and is closest to the Present Building at its northwest corner. [Note 29]

“Res judicata is a generic term encompassing both claim and issue preclusion.” Baby Furniture Warehouse Store, Inc. v. Meubles D&F Ltée, 75 Mass. App. Ct. 27 , 33 (2009). “Claim Preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” Aspinall v. Philip Morris Companies, Inc., 442 Mass. 381 , 397 n.19 (2004). “The doctrine is grounded on considerations of fairness and judicial efficiency.” Id. “The invocation of claim preclusion requires three elements: ‘(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.’” Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 843 (2005) (quoting DaLuz v. Dep’t of Correction, 434 Mass. 40 , 45 (2001)). Issue preclusion also has three elements. A court must determine “‘that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.’” Id. (quoting Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998)). “Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment.” Tuper, 428 Mass. 132 at 134-35.

The elements of both claim preclusion and issue preclusion are present in this case. First, UPRC is Union Square’s predecessor in title and therefore they are in privity. See Brooks v. Secretary of the Commonwealth, 257 Mass. 91 , 94 (1926) (citing Litchfield v. Goodnow’s Administrator, 123 U.S. 549, 551 (1887) (“[T]he term 'privity' denotes mutual or successive relationship to the same rights of property.”)). [Note 30]

Second, with regard to claim preclusion, the underlying cause of action is the same in both cases. In the Prior Action, UPRC claimed an easement by prescription, asserting that it and its predecessors had “uninterrupted use . . . for all purposes for which a driveway is commonly used, including but not limited to access to the UPRC Property by delivery trucks, openly, notoriously and adversely for a period of more than twenty (20) years.” In the case at bar, Union Square also argues that it is entitled to an easement by prescription. It is true that in the case at bar the prescriptive easement is argued in the alternative to two arguments that the record does not show were made in the Prior Action: an argument that the easement was relocated to the Adjacent Way and an argument for enforcement of the Deeded Easement, including a request that Defendant be ordered to remove buildings blocking it. However, claim preclusion applies “even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies.” Heacock v. Heacock, 402 Mass. 21 , 23 (1988). “[T]here is nothing in the complaint in the present case that was not, or could not have been, brought in the first complaint.” Tynan v. Attorney Gen., 453 Mass. 1005 , 1005 (2009). Even if the two claims were construed to not be identical, the basic issue in each case is the same for purposes of issue preclusion: whether Plaintiffs have an access easement to and from Lancaster Street and where such easement is.

Third, a prior final judgment on the merits, or its equivalent for res judicata purposes, was issued in the Prior Action. “A consent judgment . . . conclusively determines the rights of the parties as to all matters within its scope.” Kelton Corp. v. County of Worcester, 426 Mass. 355 , 359 (1997). [Note 31] Furthermore, the Agreement for Judgment explicitly states that it takes effect as a “judgement on the merits.” [Note 32] See Turner v. Community Homeowner’s Ass’n, Inc., 62 Mass. App. Ct. 319 , 327 (2004) (following the rule in Restatement (Second) of Judgments that a “consented to judgment ‘may be conclusive . . . with respect to one or more issues, if the parties have entered an agreement manifesting such an intention’”).

On the basis of the foregoing, I find that Union Square’s claim to the Deeded Easement is barred by the doctrine of res judicata. I further find that Union Square continues to have the benefit of the Agreed Easement. [Note 33]

As discussed, infra, the doctrine of res judicata also bars Union Square’s claim to the Adjacent Way, inasmuch as the Agreement for Judgment implicitly indicates that Union Square had no intent to relocate the Deeded Easement to the Adjacent Way, and inasmuch as the Agreement for Judgment released any right to a prescriptive easement benefitting Union Square that it may have acquired prior to the Agreement for Judgment.

Abandonment.

Plaintiffs argue that neither they nor their predecessors abandoned the Deeded Easement, because they have shown no intention to abandon the Deeded Easement. Moreover, they argue that their use of the Adjacent Way indicates their intention not to abandon the Deeded Easement. Since the Adjacent Way could be a second best right-of-way after the Deeded Easement was blocked, Plaintiffs argue that their use of the Adjacent Way shows that they never relinquished their rights in the Deeded Easement, but instead continued to assert those rights by using a very close substitute.

Defendant contends that Plaintiffs or their predecessors clearly abandoned the Deeded Easement, because the roads shown on the 1946 Plan have not provided access for more than forty years. Defendant asserts on the basis of Whitney Affidavit 2 – and Plaintiffs concede – that the concrete building now blocking the original Deeded Easement has not changed in size or shape since the early 1970s. Defendant argues that a concrete building placed on top of an access way strongly indicates that the Deeded Easement was abandoned. [Note 34]

“It is well settled that an easement may be lost by abandonment, but abandonment is a question of intention.” Parlante v. Brooks, 363 Mass. 879 , 880 (1973). There must be “acts by the owner of the dominant estate of such conclusive and unequivocal character as manifest a present intent to relinquish the easement or such as are incompatible with its further existence.” Willets v. Langhaar, 212 Mass. 573 , 575 (1912). “[M]ere nonuse is insufficient to demonstrate an intent by the dominant estate holder to abandon the easement.” Patterson v. Paul, 448 Mass. 658 , 668 (2007).

The Agreement for Judgment, discussed supra, plainly indicates Union Square’s intent to abandon the Deeded Easement by its statement that “[P]laintiff releases any right of claim to area outside of created right of way.” As such, the Agreement for Judgment supersedes the Deeded Easement and Union Square’s approval of the Agreement for Judgment is incompatible with the Deeded Easement’s further existence with respect to Union Square.

Plaintiffs’ argument implies that the act of abandonment was carried out by the owner of the servient estate when the Present Building or an addition to the Former Building was constructed. However, the physical prominence of the Present Building and the possible intent of the owner of the servient estate distract from the important issue: Plaintiffs’ or their predecessors’ intent. Even though Plaintiffs did not construct the building on the Deeded Easement, its presence still shows their intent. “[C]ases indicate that failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.” The 107 Manor Avenue LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). A concrete building is such a blatant impediment to an access way that Plaintiffs or their predecessors would not have allowed the construction if they had not had the intention to abandon the Deeded Easement. Cf. Sindler v. William M. Bailey Co., 348 Mass. 589 , 593 (1965) (finding that “the respondent [had] permitted the occurrence of events and relatively permanent changes in the disputed area, all of which combine to warrant an inference that it [had] abandoned its rights to the easement in question”). [Note 35]

Furthermore, Plaintiffs’ argument with regard to alternative access poses logical problems. Union Square’s use of the Adjacent Way shows its intent to access the Union Square Property by way of a different easement area than the Deeded Easement on Defendant Property and may show an intent to relocate the Deeded Easement, as discussed, infra, but it does not show an intent to maintain the Deeded Easement as such. To the extent that Plaintiffs argue that Highland Manor has used the Adjacent Way to access the Highland Manor Property, such access also does not show Highland Manor’s intent to maintain the Deeded Easement as such. Plaintiffs cannot have it both ways; if they truly had an intent not to abandon the Deeded Easement, at some point they compromised such intent by resorting to the Adjacent Way.

Based on the foregoing, I find that the Deeded Easement was abandoned by Plaintiffs, inasmuch as Plaintiffs showed intent to abandon by allowing Defendant to construct or enlarge a building to block the Deeded Easement and inasmuch as Union Square released its right to the Deeded Easement in the Agreement for Judgment in the Prior Action.

Relocation to the Adjacent Way.

In the alternative, Plaintiffs assert that the Deeded Easement was relocated when Defendant’s predecessor constructed or enlarged the building that now blocks the Deeded Easement. Specifically, Plaintiffs argue that the Deeded Easement was relocated to the Adjacent Way. Plaintiffs maintain that the actions of the parties and their predecessors show a mutual intent to relocate the Deeded Easement. [Note 36] In particular, they assert that the Adjacent Way has been used by trucks to make regular deliveries for at least twenty years. Plaintiffs produce Xarras Affidavit 2, dated November 22, 2010, which states:

4. The buildings on [the Union Square Property] exceed 100,000 square feet of warehouse space with approximately twenty loading docks.

5. Regular deliveries are made by trucks on a daily basis.

6. For at least twenty years, the trucks accessed the buildings behind the Defendants [sic] property by virtue of [the Adjacent Way].

Plaintiffs also produce affidavits from two truck drivers, Joseph Gibbons and Pelino Camapagna. The Gibbons Affidavit, dated November 19, 2010, states:

4. I made deliveries from 1970 to 1972 and on a regular basis for the last 20+ years to Union Products[,] which is located behind the [Present Building].

5. I would always and consistently access the Union Products building [Note 37] by virtue of driving along the paved roadway, which is approximately twenty feet wide, that runs along the side of the [Present Building].

The Camapagna Affidavit, dated November 18, 2010, states:

4. I made deliveries on a regular basis for the last 35 years to Union Products[,] which is located behind the [Present Building]. And I currently deliver to Lasership located at 523 Lancaster Street [Note 38] . . .

5. I would always and consistently access the Union Products building by virtue of driving along the paved roadway, which is approximately twenty feet wide, that runs along the side of the [Present Building]. I currently use the same access for my deliveries to Lasership. In addition, Plaintiffs produce the Mallard Affidavit, dated November 18, 2010, which states:

2. From 1980 to 2005, . . . my wife . . . worked at Union Products at 511 Lancaster Street, Leominster . . .

3. As a result of my wife’s employment, I am familiar with [Defendant Property] which was formerly known as Laurier Press.

4. I picked up my wife on a regular basis for the last 30 years at Union Products which is located behind the former Laurier Press building.

5. I would always and consistently access the Union Products building and observe the paved roadway, which is approximately twenty feet wide, that runs along the side of the former Laurier Press building. [Note 39]

The access to the Union Square Property described in Xarras Affidavit 2 is defined in Xarras Exhibit A as the Adjacent Way. The “paved roadway” referenced in the other affidavits also apparently corresponds to the Adjacent Way. [Note 40] Plaintiffs argue that this history of use confirms the Deeded Easement was relocated and that Defendant has no right now to obstruct the Adjacent Way.

The intentions manifested by both parties’ conduct are central to Plaintiffs’ claim that the Deeded Easement was relocated. An 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’ because the evidence reflects ‘a tacit understanding or an implied agreement,’ manifested by the dominant owner's ‘acquiescence’ in the use of the different easement in lieu of the original for a number of years. Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 705 (2004) (quoting Anderson v. DeVries, 326 Mass. 127 , 132-33 (1950)).

In spite of this language in Proulx, an implied agreement resulting in the relocation of an easement is not manifested in every case solely by the dominant owner’s acquiescence. In Proulx, it was appropriate for the court to focus on the dominant owner’s acquiescence because that case involved a dominant owner’s argument that he had not agreed to a relocation of an easement. In fact, the Proulx court found that the facts showed “not merely passive acquiescence on the part of the dominant owner”, but his “affirmative and willing participation in the relocation process by further obstructing the original easement, actively improving the alternative right of way for his own benefit, and using that way as his exclusive access . . . for a decade.” Id. As the Proulx court found, the dominant owner’s activity affirmed the servient owner’s “blockading and degrading to a state of impassability the original easement.” [Note 41] See id. Therefore, the relocation of the easement in Proulx is based on an implied agreement reflecting the conduct of both parties. Significantly, Proulx borrows the language of Anderson, in which the court found that one party was “content with the acquiescence of” the other party to use a certain way instead of a non-existent way described in a deed; in other words, both parties acquiesced, one to using an alternate way and one to a particular alternate way being used. See Anderson, 326 Mass. at 132. Proulx also relies in part on Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958), in which the servient owner “apparently acquiesced” in the dominant owner’s use of a roadway during a six-year period, resulting in relocation of the easement. In short, this court must take into account the intent of both parties, as shown by their conduct, when considering whether the Deeded Easement was relocated.

The approval of the Agreement for Judgment, discussed supra, indicates that neither Union Square nor Defendant had any intent to relocate the Deeded Easement (or that such intent was superseded), except insofar as the Agreement for Judgment relocated it. The easement prescribed by the Agreement for Judgment is not the Adjacent Way.

It might be argued that the parties implicitly agreed to relocate the easement since June 20, 2005, the date of the Agreement for Judgment. [Note 42] Such a relocation would be from the Agreed Easement rather than from the Deeded Easement. The summary judgment record contains no evidence that Defendant agreed to relocate the Agreed Easement to the Adjacent Way, [Note 43] except to the extent that Defendant allowed Union Square to use the Adjacent Way, [Note 44] as alleged in the above-referenced affidavits. In fact, if Defendant has obstructed the Adjacent Way by painting parking stripes and installing granite curbing, Defendant clearly does not agree that the Agreed Easement was relocated.

The exact date that Defendant allegedly obstructed the Adjacent Way and the exact location of the obstruction is not clear from the summary judgment record. The Gibbons Affidavit, the Camapagna Affidavit, and the Mallard Affidavit all state in the same language: “The granite curbing and parking lot stripes which were placed on the access road within the last couple of years[] have made truck passage impossible in this area.” Xarras Affidavit 2 states:

15. The Plaintiff’s tenants have complained in writing to the Plaintiff indicating that their trucks are encountering great difficulty accessing and leaving their businesses because of the activities at the Defendant’s property.

16. A copy of the letter dated January 20, 2009 from Resource Alliance, Inc.; the letter dated January 29, 2009 from LaserShip; and the letter dated January 30, 2009 from Leominster Floor Covering, Inc. are attached hereto as Exhibits B, C and D respectively.

The letters from Lasership and Leominster Floor Covering, Inc. to Xarras referenced by Xarras Affidavit 2 (Xarras Exhibit C and Xarras Exhibit D) both state in the same language:

As you are well aware, for the last several months, our trucks have encountered great difficulty entering and leaving the leased premises. This is due to the increased parking and related activities by the occupants and customers of [the Present Building]. . . . In addition, the owners of [Defendant Property] have installed granite curbing along Lancaster Street which further prohibits our ability to access and leave the leased premises.

The letter from Resource Alliance, Inc. to Xarras referenced by Xarras Affidavit 2 (Xarras Exhibit B) states:

As discussed, over the past several months, common carrier trailer truck drivers and their companies have complained to me of difficulties entering and leaving the access way to our premises. . . .

At [the Present Building] there are always an excess number of parked vehicles during the afternoon hours which . . . block and hinder safe passage of trucks to and from our business. . . . [T]raffic is unable to pass through [the right side of the entrance] due to street side granite curbing installed which prohibits access . . .”

These affidavits and exhibits from Plaintiffs indicate that the Adjacent Way became blocked “several months” before January 20, 2009, or a “couple years” before November 18, 2010, about the time the Complaint in this case was filed. The time between the Agreement for Judgment and the alleged obstruction would therefore be at most a little over three years, a rather short time for Defendant to change its opinion about the location of the Agreed Easement, of which it was a beneficiary and which had been the result of recent litigation.

Furthermore, Plaintiffs’ affidavits do not indicate any use of the Agreed Easement. Instead, they allege consistent access to the Union Square Property by way of the Adjacent Way from 1970 to 2010. It seems highly unlikely that Union Square or its predecessor would agree in the Agreement for Judgment to end a thirty-five year period of use of the Adjacent Way, only to immediately resume such use.

Moreover, the Agreement for Judgment required the parties to widen the paved area and construct a retaining wall; any implied agreement to relocate the easement must have occurred after that work was completed, at a date later than the Agreement for Judgment. The Cosimi Affidavit states: [Note 45]

7. I had discussion on several occasions with James Xarras regarding the improvements pursuant to the [Agreement for Judgment] and received his permission and consent to make the necessary improvements to the [Agreed Easement]. Additional improvements were made which James Xarras agreed to share in paying the expense [sic].

8. The improvements were made to the [Union Square Property], pursuant to said Judgment and with the Plaintiffs [sic] consent. . . .

10. The Plaintiff has used and benefited [sic] from the easement established pursuant to the Agreement for Judgment.

It is by no means clear that Union Square’s alleged use of the Adjacent Way and Defendant’s alleged acquiescence to such use have occurred long enough to warrant relocation of the Agreed Easement to the Adjacent Way, even assuming arguendo that both have occurred. Although no specific duration of the parties’ relevant conduct is required to relocate an easement, Union Square’s alleged use of the Adjacent Way between the date of the Agreement for Judgment and the date at which Defendant allegedly obstructed the Adjacent Way is significantly less than the ten years in Proulx or the six years in Desotell.

The summary judgment record contains no evidence that Highland Manor has used the Adjacent Way. [Note 46] The affidavits presented by Plaintiffs refer only to truck traffic connected with Union Square. Therefore, it is impossible for this court to find any tacit understanding or implied agreement between Highland Manor and Defendant that would deem the easement relocated to the Adjacent Way.

Based on the foregoing, I find that there was no relocation of either the Deeded Easement or the Agreed Easement to the Adjacent Way.

. Prescriptive Easement.

Plaintiffs also argue in the alternative that they have acquired an easement by prescription in the Adjacent Way, by virtue of their ongoing adverse use.

An easement by prescription requires “open, notorious and adverse use for twenty years over the land of another.” Uliasz v. Gillette, 357 Mass. 96 , 102 (1970). Regardless of the nature of Union Square’s use of the Adjacent Way, it has not satisfied the statutory time requirement for a prescriptive easement. The time of adverse use would accrue from the Agreement for Judgment, which was dated June 20, 2005, much less than twenty years ago. Therefore, Union Square cannot acquire an easement by prescription; it is not necessary to consider its use with respect to the other requirements for a prescriptive easement.

As discussed, supra, the summary judgment record provides no evidence pertaining to Highland Manor’s use of the Adjacent Way. Therefore, Highland Manor cannot acquire an easement by prescription. [Note 47]

Based on the foregoing, I find that Plaintiffs do not have an easement by prescription.

Trespass.

In Count III of their Complaint, Plaintiffs allege: “From on or about 2004 to the present date, the Defendant, without lawful authority, installed or caused to be installed electrical service cable on the Plaintiffs’ property at 511 Lancaster Street, Leominster, Massachusetts.” Defendant denied this allegation in its Answer. Neither party has put anything else before this court relative to Plaintiffs’ allegations of trespass. [Note 48] Therefore, this court is unable to make any findings or rulings with regard to Plaintiffs’ allegations of trespass.

As a result of the foregoing, I ALLOW Defendant’s Motion for Summary Judgment and DENY Plaintiffs’ Cross-Motion for Summary Judgment.

Inasmuch as the Agreed Easement continues to provide access to the Union Square Property according to the terms of the Agreement for Judgment, within thirty days from the date of this Decision the parties shall prepare a recordable plan indicating the location and dimensions of the Agreed Easement, including, but not limited to, its width and northerly boundary. [Note 49]

Since this court finds that Union Square and Defendant remain bound by the Agreement for Judgment and that there has been no relocation of the easement to the Adjacent Way, it is not necessary to address Plaintiffs’ allegations that Defendant has obstructed the Adjacent Way or to determine exactly where and when such obstruction allegedly occurred. Plaintiffs’ allegations of obstruction are moot, except as they may regard obstruction of the Agreed Easement, (although it is not clear from the summary judgment record that they do). Therefore, within thirty days from the date of this decision, Defendant shall remove any obstructions including, but not limited to, curbing or striping that impair Union Square’s access to the Union Square Property by way of the Agreed Easement or Defendant’s access to Defendant Property by way of the Agreed Easement.

Judgment to enter accordingly.

Exhibit A