ROBERT J. RANALLI, individually, and MARY ANN B. RANALLI, individually And as Trustee of the Mary Ann B. Ranalli 1995 Qualified Personal Residence Trust v. KEITHA S. FINE

INTRODUCTION

The Plaintiffs, Robert J. Ranalli, Mary Ann B. Ranalli, and Mary Ann B. Ranalli as Trustee of the Mary Ann B. Ranalli 1995 Qualified Personal Residence Trust (collectively, the “Plaintiffs” or the “Ranallis”) filed a Verified Complaint on July 15, 2009, seeking a declaratory judgment that there is a valid and binding cross-easement agreement between the Ranallis and Defendant Keitha S. Fine (“Ms. Fine”), under which Ms. Fine has a perpetual, appurtenant easement to maintain her electrical service connection to the transformer on the Ranalli land, and the Ranallis have a perpetual, appurtenant “view easement” which allows them to trim trees on the Fine property in order to maintain their views of the Gay Head Lighthouse and the Atlantic Ocean. [Note 1]

Ms. Fine denies the existence of enforceable cross-easements, and asserts that the Plaintiffs’ actions are barred by the Statute of Frauds. She has also counterclaimed against the Ranallis, seeking damages for trespass and treble damages for willful trespass to trees, as well as an injunction prohibiting the Ranallis from entering onto her property to trim or cut trees in the future.

The Ranallis filed a Motion for Endorsement of Lis Pendens, which was opposed by the Defendant with a Special Motion to Dismiss under G.L. c.184, § 15 (c). Ms. Fine also filed a Motion for Preliminary Injunction to prevent the Ranallis from entering onto her property during the pendency of this matter. Following a hearing held on October 6, 2009, the court allowed the Plaintiffs' Motion for Lis Pendens, and denied without prejudice the Defendant’s Special Motion to Dismiss. The court also allowed the Defendant’s unopposed Motion for Preliminary Injunction. At that time, the parties reported that they anticipated filing cross-motions for summary judgment following completion of discovery. However, they ultimately elected to proceed to trial, instead.

The trial was conducted on January 10 and 11, 2011. Four witnesses testified. Forty-seven exhibits were entered into evidence, of which all but one were agreed upon by the parties in advance of trial. The parties also stipulated to several of the facts surrounding the ownership and development of their respective properties. At the conclusion of the trial, the Defendant renewed her Special Motion to Dismiss. [Note 2] Both parties submitted post-trial briefs following receipt of the trial transcripts.

Based upon the testimony, exhibits, stipulations and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw from same, and taking into account the pleadings, as well as the parties’ legal memoranda, I conclude that the parties never entered into an enforceable cross-easement agreement, and that neither the Ranalli land nor the Fine land is burdened by an easement for the benefit of the other. The Ranallis failed to prove that the parties entered any written or oral contract for easements. Although Mr. Ranalli may have given his oral permission for Ms. Fine’s electrical service connection in the belief that Ms. Fine would grant a view easement in exchange, the evidence does not support the Ranallis’ contention that Ms. Fine was of the same mind at the time the oral permission was granted. Moreover, the evidence demonstrates that the parties never did reach a full meeting of the minds, even after they had entered into negotiations for a cross-easement agreement, and that the Ranallis revoked the oral permission for Ms. Fine’s electrical connection in 1992.

Because the Ranallis do not hold an enforceable view easement permitting them to trim trees on the Fine Property, and have failed to establish that their actions in causing the periodic trimming of certain deciduous trees on the Fine property were permissive, I further conclude that their actions constituted repeated civil trespasses. However, because Ms. Fine presented no evidence whatsoever as to any damages she sustained as a result of the trespasses, she is entitled only to injunctive relief, and not the monetary damages prayed for in her Counterclaim. In addition to the lack of evidence of any monetary damages, there was no evidence that the trimming of the trees on the Fine Property resulted in destruction, girdling or taking away of any trees. Therefore, Ms. Fine’s counterclaim for treble damages under G.L. c. 242, § 7 for willful trespass to trees fails.

FINDINGS OF FACT

1. By deed dated April 28, 1988, and recorded on May 27, 1988 in the Dukes County Registry of Deeds at Book 500, Page 514, Robert J. Ranalli and Mary Ann B. Ranalli acquired land in Aquinnah, Massachusetts designated as “Lot 1” on a plan entitled “Plan of Land in Gay Head, Mass. Prepared for Benjamin Taylor Realty Trust Scale: 1” = 60’ September 17, 1987 Schofield Brothers, Inc. Registered Professional Engineers and Land Surveyors” and recorded in said Deeds as Gay Head Case File No. 73 (the “Schofield Plan”).

2. By deed dated January 14, 1991 and recorded on January 17, 1991 in said Deeds at Book 551, Page 476, Mary Ann B. Ranalli acquired land designated as “Lot 2” on the Schofield Plan.

3. By deeds dated October 20, 1995 and February 1, 2000, Lot 1 and Lot 2 on the Schofield Plan (collectively, the “Ranalli Property”) were conveyed to Mary Ann B. Ranalli, as Trustee of the Mary Ann B. Ranalli 1995 Qualified Personal Residence Trust. [Note 3]

4. Keitha Fine owns the property known and numbered as 6 Attaquin Way, Aquinnah, Massachusetts under Certificate of Title No. 3877, in Land Court Registration Case No. 29817 (the “Fine Property”).

5. The Ranalli Property directly abuts the Fine Property.

6. The house on the Ranalli Property was constructed sometime prior to 1990. The Ranallis had the house constructed in such a manner as to take advantage of views across the Fine Property to the Gay Head Lighthouse on the west and the Atlantic Ocean on the southwest, as well as views of the Elizabeth Islands to the north. The Ranalli house is located approximately sixty (60) feet to the east of the Ranalli/Fine common boundary line.

7. The house on the Fine Property was constructed between 1989 and 1991. Ms. Fine sought to have the house located and constructed so that it would “nestle” into the contours of the lot and among the trees, in order to give her privacy and make the building unobtrusive to neighbors.

8. Electrical service to the house on the Fine Property is currently provided via a connection across the Ranalli Property to a Commonwealth Electric Co. transformer located thereon, approximately thirty (30) feet from the Ranalli/Fine common boundary line.

9. In June or July, 1990, Ms. Fine telephoned the Ranallis at their New Jersey residence to ask for their consent to having her electrical service line connect to the Commonwealth Electric Co. transformer on the Ranalli Property. Ms. Fine believed she was requesting the consent on behalf of Commonwealth Electric Co. Under the impression that, in exchange for giving their permission, Ms. Fine would agree to the trimming of certain trees on her land to maintain and improve the Ranallis’ views of the Gay Head Lighthouse and the Atlantic Ocean, Mr. Ranalli orally agreed to grant permission for Ms. Fine’s electrical service line connection on the Ranalli Property. Mr. Ranalli subsequently communicated his oral permission to Commonwealth Electric Co. but, despite promising to do so, he never followed up by returning a signed, written release form to Commonwealth Electric Co.

10. On the basis of Mr. Ranalli’s oral permission to Commonwealth Electric Co., Ms. Fine’s electrical service was connected in July 1990. The underground line connecting to the transformer on the Ranalli Property crosses that Property for a distance of approximately thirty (30) feet. The installation work took less than a day and caused no disturbance to the Ranallis' landscaping.

11. On October 5, 1990, the Ranallis’ attorney, Edward Coogan, sent Ms. Fine a proposed view easement for her signature. The proposed view easement would have granted the Ranallis the right to trim three or four mutually agreed upon trees to the extent they grow to block the Ranallis’ southwest view (to the ocean), and would have required Ms. Fine to maintain the Ranallis’ view of the lighthouse by keeping the height of the trees between her house and the Ranallis’ house no higher than the roofline of the Fine house. Ms. Fine would have been responsible for the costs associated with maintenance of the Ranallis' view. The proposed view easement contained no mention of an easement or other permission for Ms. Fine’s electrical connection. However, Attorney Coogan’s cover letter indicated his understanding that “Mr. Ranalli will send the letter you requested by way of overnight mail service.” [Note 4] Ms. Fine did not sign the proposed view easement.

12. Also on October 5, 1990, Mr. Ranalli sent a letter to Ms. Fine (although not by express mail) stating that, in return for the view easement providing the right to trim three or four trees on the Fine Property to allow a southwesterly view of the ocean, and Ms. Fine’s agreement to keep the trees between their houses below the elevation of the Fine house to maintain the Ranallis’ permanent view of the lighthouse, “I hereby grant you the permanent right to cross our property located at Gay Head, Martha’s Vineyard, for the purpose of installation of electrical service.” The letter is not signed by Mrs. Ranalli. Although the letter included a space for Ms. Fine to signify her agreement, Ms. Fine did not countersign the letter.

13. On November 27, 1990, Ms. Fine’s attorney, Stephen Clark, responded to Attorney Coogan’s proposed view easement, by sending for his review a draft cross-easement proposal, which would have provided Ms. Fine a permanent electric line connection and maintenance easement and would have provided the Ranallis with a permanent view easement. As proposed, the view easement would have allowed the Ranallis to cut three or four trees at the northerly border of the Fine Property after reasonable written notice and at their own expense, but “only to the extent as the trees grow to block” the Ranallis’ view of the “light house and the south shore of Martha’s Vineyard.” It did not include permission to trim trees to improve the Ranallis’ southwest view of the ocean.

14. On December 7, 1990, Attorney Coogan sent back a revised draft of the cross-easement agreement, incorporating a new paragraph “by Mr. Ranalli that he feels more comfortable with,” [Note 5] and deleting a provision allocating responsibility for the maintenance costs. Ms. Fine did not accept the revised terms.

15. Thereafter, in the first half of 1991, the parties’ attorneys exchanged correspondence concerning their respective clients’ disagreement over the terms to be included in a cross-easement agreement. There was also direct correspondence between Mr. Ranalli and Ms. Fine during this period evidencing their disagreement over the genesis, scope and purpose of a cross-easement agreement.

16. On February 13, 1991, Mr. Ranalli wrote to Ms. Fine expressing his disappointment that Ms. Fine was “unwilling to honor the agreement that would have allowed me to grant you an easement on my property for connection of your electrical service. Since we do not have an agreement, you do not have my permission to install electrical service across my property….” The letter indicates that a copy was sent to Commonwealth Electric Co. Shortly thereafter, a representative of Commonwealth Electric Co. wrote to Ms. Fine, advising that without documentation of the Ranallis’ permission it would be necessary to discontinue her electric service connection.

17. Ms. Fine wrote to Mr. Ranalli on March 15, 1991, expressing her surprise at learning that Mr. Ranalli would not send a letter to the electric company confirming his permission for her electrical connection to the transformer on the Ranalli Property until after he received a view easement. Ms. Fine stated that she intended to honor her original commitment to ensure the Ranallis’ view over her roofline, but asserted that she had never linked that commitment to the “permission to Con Ed [sic] in regard to the electricity….”

18. On April 23, 1991, after the parties had negotiated further concerning the number, types, and location of trees which the Ranallis would be allowed to trim, Attorney Clark sent Mr. Ranalli a revised draft cross-easement proposal on behalf of Ms. Fine. [Note 6]

19. On June 12, 1991, Mr. Ranalli responded to Attorney Clark, apologizing for the delay and explaining that he had “needed to look at the situation at the Vineyard to determine whether this offer was acceptable.” Mr. Ranalli requested certain changes to the April 23rd draft, and indicated that he would sign the document after the changes were made.

20. On June 20, 1991, Attorney Clark sent Mr. Ranalli a further revised version of the draft agreement which incorporated Mr. Ranalli’s changes, noting that he had been unable to confirm Ms. Fine’s acceptance of those changes because she was out of the country. Attorney Clark indicated his belief that the “minor” changes would be agreeable to his client and suggested that it would expedite matters if the Ranallis could sign and return the document to him. His letter concludes, “[a]s soon as she returns from Eastern Europe, I will confirm [Ms. Fine’s] signature on the document.”

21. After marking up the revised draft agreement with additional changes, the Ranallis returned the document to Attorney Clark on June 27, 1991 with their notarized signatures and requested that a copy, initialed as to the changes and signed by Ms. Fine, be returned to Mr. Ranalli for his files. At that point, Mr. Ranalli believed that a deal had been struck. But Ms. Fine never had the opportunity to accept the changes and sign the June 27, 1991 version of the cross-easement agreement.

22. When, as of August 19, 1991, he had still not received a copy of the June 27, 1991 cross-easement document with Ms. Fine’s signature, Mr. Ranalli wrote to Attorney Clark declaring that his signature on the June 27, 1991 document should be considered “void at this time.” His letter further stated that, if Ms. Fine were to sign a mutual easement and submit it to him within two weeks, he would “review the document and sign it if appropriate.” He enclosed a copy of the June 27, 1991 document with “Void 8/19/91” written across the first page, and “VOID RJR 8/19/91” written across the signature page.

23. On August 27, 1991, Attorney Clark sent the Ranallis a re-typed version of the previously voided cross-easement document. The re-typed document contained Ms. Fine’s notarized, August 26, 1991 signature (the “August 1991 Document”). In his transmittal letter, Attorney Clark asked the Ranallis to return the document to him with their own notarized signatures so that he could record and register it, “[i]f this is still agreeable to you.”

24. The Ranallis did not return the August 1991 Document with their notarized signatures, and did not otherwise communicate any intention to accept its terms. Although Mr. Ranalli signed the August 1991 Document soon after he received it, he did not have his signature notarized. Instead, Mr. Ranalli put the partially executed document away, believing that as long as the Document was not fully executed and notarized, he could re-open negotiations for an expansion of the view easement to include the view of the ocean. Mrs. Ranalli did not sign the August 1991 Document at that time. [Note 7]

25. On December 12, 1991, the Ranallis sent Ms. Fine a proposed, new agreement for cross-easements, containing both the Ranallis’ notarized signatures. The December 1991 proposal varied materially from the August 1991 Document in that the rights granted were limited to a term of less than five-years, rather than the perpetual easements expressed in the August 1991 Document. In his December 12, 1991 letter to Ms. Fine transmitting the proposed short-term cross-easement agreement, Mr. Ranalli stated that “[u]nder current conditions, I cannot agree to a permanent cross easement ….” Ms. Fine did not accept the new proposal.

26. Further attempts in early 1992 to negotiate cross-easement terms were unsuccessful. Ultimately, Mr. Ranalli informed Ms. Fine, by letter dated March 17, 1992, that unless he received her signature on the December 1991 agreement by April 6, 1992, Mr. Ranalli would inform Commonwealth Electric Co. that she no longer had permission for the electrical connection on his property.

27. By letter dated March 30, 1992, Attorney Clark replied to Mr. Ranalli, explaining that Ms. Fine was not willing to sign the December 1991 agreement because she wanted the cross-easements to be permanent.

28. On April 9, 1992, Mr. Ranalli wrote back to Attorney Clark stating that the Ranallis were “not willing to agree to a permanent view easement” because Ms. Fine was not willing to allow them to trim sufficient trees to provide views to the southwest (to the ocean), in addition to preserving the view over the top of her roofline (to the Lighthouse). He declared that “we are no longer willing to continue the negotiations.” Finally, his April 9, 1992 letter advised of Mr. Ranalli’s intention to notify Commonwealth Electric Co. that Ms. Fine had no permission for a power connection across the Ranallis’ land, and that Ms. Fine would have three months to make alternative plans for the connection.

29. Mr. Ranalli followed up with a letter to Commonwealth Electric Co. on May 5, 1992, reporting that Ms. Fine no longer had permission to cross the Ranalli Property to connect her electricity. He enclosed a copy of his April 9, 1992 letter to Ms. Fine.

30. Although Attorney Clark informed Mr. Ranalli, by letter dated June 30, 1992, that Ms. Fine would reroute her electric service line, she never did so. And on August 25, 1992, Mr. Ranalli again wrote to Mr. Clark seeking “expeditious” removal of the electrical line from the Ranalli Property.

31. On February 8, 1993 and again on June 13, 1994, Mr. Ranalli wrote to Attorney Clark complaining about Ms. Fine’s failure to remove the electrical line, but the line was never removed. In response to his demands that Commonwealth Electric Co. disconnect the line, Mr. Ranalli was advised by a representative of that company that it would not disconnect the line without a court order. The Ranallis did not seek a court order for disconnection.

32. On at least five occasions between 1998 and March 2009, a certified arborist, engaged by the Ranallis, entered onto the Fine Property and trimmed approximately one and one-half to two feet from the top branches of three or four of the deciduous trees located behind the Fine house. The tree trimming was done at the direction of the Ranallis. On none of these occasions was Ms. Fine given any advance notice of the tree trimming, written or otherwise, and she was unaware that any trimming had occurred until after the most recent occasion in March, 2009.

33. After each successive tree trimming, the trees grew again. None of the trees was harmed by the trimming, and Ms. Fine incurred no costs for replacement or restoration of the trees.

DISCUSSION

The Plaintiffs’ Cross-Easement Claim

The central question in this case is whether the Ranallis and Ms. Fine ever entered into an enforceable agreement for cross-easements. I find they did not. The evidence does not establish that there was ever a “meeting of the minds” resulting in an enforceable contract to exchange easements. See RESTATEMENT (SECOND) OF CONTRACTS § 17 cmt. c (1981) (formation of a contract requires a manifestation of mutual assent, sometimes referred to as a “meeting of the minds.”). A manifestation of mutual assent usually takes the form of an offer by one party followed by an acceptance by the other party. Id. at § 22. Here, there were several offers made concerning agreements for cross-easements, but there was never an acceptance. Additionally, an agreement to exchange easements in real property is normally enforceable only if it meets the requirements of the Statute of Frauds, G.L. c. 259, § 1, that there be a sufficient writing signed by the party or parties to be charged therewith. Here, there was no such signed writing.

To support their claim that the parties have valid, enforceable cross-easements, the Ranallis chiefly rely upon the August 1991 Document. The Ranallis claim that the August 1991 Document satisfies the Statute of Frauds because it memorializes an oral agreement reached by the parties the previous year, and is signed by the parties to be charged. Alternatively, the Ranallis contend that they hold an enforceable view easement over the Fine Property by virtue of an oral agreement for cross-easements which is statutorily exempt from the signed writing normally required under the Statute of Frauds. For the reasons discussed below, the facts do not support the existence of an enforceable easement agreement under either of these theories. Not only did the parties never fully execute a written cross-easement agreement, but they never reached a meeting of the minds which resulted in a binding oral agreement.

Relying solely on their own testimony concerning their respective conversations with Ms. Fine in July and August of 1990, the Ranallis argue that the parties had reached an oral agreement that, in exchange for the Ranallis allowing Ms. Fine’s electrical service connection to the transformer on their property, Ms. Fine would grant the Ranallis easements to maintain their views across her property to the Gay Head Lighthouse and to improve their southwest views of the Atlantic Ocean. The Ranallis insist that the final details of this arrangement were ultimately memorialized in an agreement for cross-easements signed by the Ranallis on June 27, 1991, and in an agreement with identical terms executed by Ms. Fine on August 26, 1991.

Ms. Fine’s testimony recounting her 1990 conversations with the Ranallis differs markedly from the Ranallis’ recollections. She disclaims having discussed the grant of a formal view easement with either of the Ranallis as the quid pro quo for their permission for her electrical connection. [Note 8] I credit Ms. Fine’s testimony that her representations to the Ranallis that she would consider allowing some tree trimming to preserve their views were meant only as a neighborly gesture, and that she anticipated discussing details as to how this would be accomplished only after her house construction was completed. I further credit Ms. Fine’s testimony that she was not aware of the Ranallis’ expectation of receiving a permanent view easement until October of 1990, when she received from the Ranallis’ attorney a proposed view easement for her signature, and also received a letter from Mr. Ranalli seeking her confirmation that he was granting her the perpetual right to install an electric line across the Ranalli Property in return for her granting the Ranallis a view easement. [Note 9]

At most, the evidence indicates that either at, or shortly after, the time that the Ranallis gave verbal permission for Ms. Fine’s electric service to be connected to the transformer on their land, the parties discussed the Ranallis’ desire to have certain trees trimmed in order preserve and enhance their views, and Ms. Fine’s willingness to cooperate. But there is no credible evidence that the parties actually reached agreement as to the form this cooperation would take, including that formal easements would be involved. Further, regardless of the parties’ differing accounts of their discussions during the summer of 1990, the ensuing events contrast markedly with the Ranallis’ assertions that these early discussions resulted in a meeting of the minds concerning an exchange of easements.

Indeed, it was not until a couple of months later that the parties agreed, through their attorneys, to negotiate a cross-easement agreement. But an agreement to reach an agreement “is a contradiction in terms and imposes no legal obligation on the parties thereto.” Rosenfeld v. United States Trust, 290 Mass. 210 , 217 (1935). At that stage, the parties had yet to work out key elements, including whether the scope of the view easement would include both the view to the Lighthouse and the view to the ocean; how many and which of Ms. Fine’s trees the Ranallis would be permitted to trim; the exact width and location of the electric line easement; and who would bear the costs of maintaining the easements. Nor did the parties ever reach full agreement during the protracted, and sometimes contentious, negotiations which continued over the next several months.

The parties had still not reached full agreement when, on June 12, 1991, Mr. Ranalli responded to a draft cross-easement agreement forwarded by Ms. Fine’s attorney on April 23, 1991, by requesting changes to that draft. While Attorney Clark did make the requested changes and immediately sent back a revised draft for the Ranallis to execute, he did so with the caveat that Ms. Fine had not yet seen or agreed to the Ranallis’ changes. Moreover, the Ranallis made additional handwritten changes to the document before executing it and returning it to Attorney Clark on June 27, 1991.

Notwithstanding Mr. Ranalli’s testimony that he expected the deal to be final once he sent back the executed agreement, “[e]xpectations and negotiations fall far short of a binding agreement.” Brighton Packing Co. v. Butchers’ Slaughtering & Melting Ass’n, 211 Mass. 398 , 405 (1912). As it turned out, the parties had still not progressed beyond the stage of “imperfect negotiation.” See Situation Mgt. Sys. v. Malouf, Inc., 430 Mass. 875 , 878 (2000). Because the document signed by the Ranallis on June 27, 1991 included modifications to the language of the proposed cross-easement agreement offered by Ms. Fine on April 23, 1991, it represented nothing more than a counteroffer. See RESTATEMENT (SECOND) OF CONTRACTS § 59 (a reply to an offer which purports acceptance but is conditional on the offeror’s assent to additional or different terms from those offered is a counter offer, not an acceptance); see also Tull v. Mister Donut Dev. Corp., 7 Mass. App. Ct. 626 , 631 (1979) (a draft lease sent by company to landowner could be taken as an offer, but the signed documents, as modified and returned to the company stood as a counter offer). More importantly, the Ranallis’ June 27, 1991 counter offer was rescinded before Ms. Fine had the opportunity to accept it, when, on August 19, 1991, Mr. Ranalli declared his June 27, 1991 signature “void,” and sent Attorney Clark a copy of the signed document marked “VOID.” Thus, I treat the August 1991 Document as a new offer by Ms. Fine (albeit identical in wording to the counteroffer rescinded by the Ranallis.)

A standard method of making an offer is to submit to the offeree a written agreement signed by the offeror, inviting the offeree to sign on a line provided for that purpose. RESTATEMENT (SECOND) OF CONTRACTS § 26 (1981). That is what happened when Attorney Clark sent the August 1991 Document to the Ranallis, requesting that they return it with their notarized signatures. But the Ranallis did not accept Ms. Fine’s new offer.

Mr. Ranalli claims to have signed the August 1991 Document shortly after receiving it, although he admits that did not have his signature notarized. Nor did Mrs. Ranalli sign the Document at that time. In addition to not returning the signed and notarized cross-easement agreement to Attorney Clark for recording and registration, as had been expressly requested in Clark’s August 27, 1991 transmittal letter, the Ranallis did not otherwise communicate their acceptance of the offer, either then or later. [Note 10]

The Ranallis dismiss the fact that they never fully executed the August 1991 Document, and never communicated their acceptance of the easement agreement described therein, by arguing that their own signatures on said Document were not necessary because they had already signed an identical cross-easement agreement on June 27, 1991. [Note 11] However, I reject this argument in view of the fact that Mr. Ranalli voided his signature on the June 27, 1991 agreement before Ms. Fine could accept it.

A contract signed by one party is enforceable without the other party’s signature only if the other party manifests acceptance. Hanfler v. Zolos, 446 Mass. 489 , 498-99 (2006). An offeree’s silence does not normally operate as an acceptance. Cassavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785 , 798 (2005). And there is nothing in the circumstances here which would justify an exception to the general rule. See Polaroid Corp. v. Rollins Envtl. Services, Inc., 416 Mass. 684 , 690-91 (1993) (“[a]lthough silence does not ordinarily manifest assent, the relationship between the parties or other circumstances may justify the assumption that silence indicates assent to the proposal”). Further, in order for an agreement to be enforceable, there must be “present intent” to be bound by its terms at the time of the formation of the agreement. Targus Grp. Int’l v. Sherman, 76 Mass. App. Ct . 421, 428 (2010). Here, any “present intent” to be bound by the August 1991 Document is belied by Mrs. Ranalli’s failure to sign the Document, by Mr. Ranalli’s actions in failing to have his signature notarized, and by Mr. Ranalli’s actions in putting the partially signed August 1991 Document away, hoping to negotiate better terms.

The proposed short-term cross-easement agreement which the Ranallis subsequently signed and forwarded to Ms. Fine in December 1991 also demonstrates that the Ranallis lacked a “present intent” to enter into the cross-easement agreement set forth in the August 1991 Document. The four and one-half year duration of the cross-easement agreement contemplated under the Ranallis’ December 1991 proposal differed materially from the permanent cross-easement agreement described in the August 1991 Document.

In light of the Ranallis’ failure to execute and return, or otherwise communicate their acceptance of, the August 1991 Document, their materially different proposal in December 1991 can only be viewed as a rejection of the August 1991 Document, and must be treated as yet another counteroffer. Tull v. Mister Donut Dev. Corp., 7 Mass. App. Ct. at 631 (documents revised “in more than trifling detail” stood as a counteroffer). The Ranallis’ rejection of the August 1991 proposal is underscored by Mr. Ranallis’ unequivocal statement in his December 12, 1991 letter that he could no longer agree to a permanent easement.

Subsequent correspondence sent to Ms. Fine’s attorney in early 1992, in which Mr. Ranalli declares that he cannot continue negotiations, and in which he expressly revokes permission for Ms. Fine’s electrical service connection, also fully contradict the Ranallis’ claim that they believed an agreement had been reached and that the cross-easements described in the August 1991 document were in effect. Mr. Ranalli’s follow-up correspondence in May,1992, informing Commonwealth Electric Co. that Ms. Fine no longer had permission for the connection, and his subsequent correspondence in 1992, 1993 and 1994 demanding that Ms. Fine remove the electrical connection, only serve to confirm that the Ranallis did not then believe an easement agreement was in effect (oral or otherwise).

Having concluded that the parties never entered into an agreement for easements, either in writing or orally, I now address the Plaintiffs’ alternative argument that the August 1991 Document is nevertheless enforceable as a unilateral grant of a view easement from Ms. Fine, made in consideration for the Ranallis having previously granted permission for her electrical connection. Although not alleged in their Verified Complaint, nor raised prior to trial, the Ranallis argue in their post-trial memorandum that Ms. Fine’s signature on the August 1991 Document allows that Document to be enforced as a unilateral grant of the view easement described therein.

This alternative argument fails for two essential reasons. First and foremost, the plain language of the August 1991 Document contemplated the exchange of easements. Thus, Ms. Fine’s signature on that Document was conditional on the Ranallis’ agreement to grant the permanent electrical easement described in the same Document. But, as discussed above, the Ranallis did not agree to that condition. Instead, they rejected Ms. Fine’s August 1991 cross-easement agreement offer when they sent a counteroffer for a temporary cross-easement agreement in December 1991. Nor did they later grant Ms. Fine a permanent electrical easement.

Secondly, the Ranallis may not rely upon their prior, oral permission as “consideration” for Ms. Fine granting them a view easement. See Greater Boston Cable Corporation v. White Mountain Cable Construction Corporation, 414 Mass. 76 , 80 (1992) (“Past performance does not support a contract.”). And, in any event, oral permission is not tantamount to the grant of a permanent electrical easement as contemplated under the terms of the August 1991 Document. Indeed, the Ranallis rescinded their oral permission in 1992. [Note 12]

On the basis of the foregoing, I find that the Ranallis’ Property is neither benefited by an enforceable view easement allowing them to trim trees on the Fine Property, nor burdened by an electrical connection/maintenance easement for the benefit of the Fine Property. Judgment shall enter on the Ranallis’ claims accordingly.

The Defendant’s Counterclaims for Trespass and Willful Trespass to Trees

The Ranallis do not dispute that they engaged an arborist on several occasions to trim trees on the Fine Property. They argue, however, that they did so in the belief that they held an easement to do so. As discussed above, the Ranallis had no such easement. Moreover, the Ranallis have failed to show that their entries on the Fine Property were otherwise permissible. Because the entries were intentional, their claim to have acted in the good faith belief that they held an easement is irrelevant. Accordingly, I conclude that their entries onto the Fine Property to trim trees over an eleven year period, being both intentional and without privilege amounted to repeated trespasses, entitling Ms. Fine to the issuance of a permanent injunction preventing such unauthorized entry in the future. However, Ms. Fine has not proved entitlement to an award of money damages for the trespasses. She has, moreover, failed to prove that she is entitled to treble damages under G.L. c. 242, § 7 for willful trespass to trees.

The measure of damages for trespass depends upon whether the claimed injury from the trespass is permanent or temporary. McMahon v. Krumine, 353 Mass. 511 , 513 (1968). Here the trespass consists of several, separate events occurring approximately every other year over an eleven-year period between 1998 and 2009. In each instance, a certified arborist (engaged by the Ranallis and at the Ranalli’s direction) entered onto the Fine Property without Ms. Fine’s knowledge or permission, and trimmed approximately one and one-half to two feet from the upper branches of three or four deciduous trees behind Ms. Fine’s house. The trees grew back after each trimming. [Note 13]

I view the tree trimming events as a series of temporary trespasses. Usually, if an injury caused by a temporary trespass “is reasonably curable by repairs, the expense of repairs, if less than the diminished market value, is the measure of recovery.” Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332 , 336 (1993) (quoting Belkus v. Brockton, 282 Mass. 285 , 288 (1933)). When the claimed trespass injury is the cutting of trees, as in this instance, the plaintiff may opt for restoration cost damages. Glavin v. Eckman, 71 Mass. App. Ct. 313 , 317-18 (2008).

Here, Ms. Fine’s counterclaims for trespass and trespass to trees included prayers for money damages. Yet, she alleges no particular injuries to her Property, and specifies no monetary costs or losses associated with the unauthorized entry onto her property. Nor did Ms. Fine present any evidence at trial: (1) that the value of the any of her trees was diminished by the trimming; or (2) that the trimming injured any of her trees to such an extent that curative measures were needed to restore the health of the trees and, if so, at what cost; or (3) that any of the trees were so damaged by the trimming that they required replacement and, if so, their replacement value. Therefore, no monetary damages will be awarded for trespass.

Moreover, Ms. Fine is not entitled to treble damages under her G.L. c. 242, § 7 counterclaim for willful trespass to trees. Under that statute, “[a] person who without license willfully cuts down, carries away, girdles or otherwise destroys trees…on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed.” G.L. c. 242, § 7 (emphasis added). Here, in addition to not proving that she suffered any monetary damages as a result of the unauthorized tree trimming, Ms. Fine failed to present any evidence to establish that any of the trees on the her Property were, in fact, “cut down, carrie[d] away, girdle[d] or otherwise destroy[ed]” as a result of the trimming, so as to bring the Ranallis’ actions within the ambit of G.L. c. 242, § 7. Indeed, as discussed above, there was no evidence that the trees were harmed in any way. Accordingly, judgment shall enter dismissing her counterclaim for treble damages under G.L. c. 242, § 7.