MISC 91684

April 2, 1979

Randall, C. J.


Plaintiffs seek a declaration of the rights of the respective parties in a passageway located along the northeasterly ten feet of plaintiffs' land and in addition claim that defendants Bellittas' use of the way constitutes an overburdening of the easement.

Defendants Bellitta filed an answer denying an overburdening of the easement and claiming their right to the use of the same.

Domenic and Josephine Donato were likewise served but filed no answer and took no part in the case.

Trial was held on December 15, 1978 and December 21, 1978. At that time the parties submitted a partial statement of agreed facts, contained in a document entitled "Memorandum of Fact", signed only by defendants' counsel. Plaintiffs' attorney agreed in open court that this document be submitted as a statement of agreed facts. In addition, four witnesses testified and six exhibits, incorporated herein for the purpose of any appeal, were introduced into evidence.

The Court finds the following facts:

Plaintiffs property is located at 226-228 Princeton street, East Boston, consisting of a 50 by 100 foot lot in the southeast line of which is located the 2 1/2 story wooden dwelling in which they live. This dwelling on the line of Princeton street, is 8.81 feet southwesterly of the northeasterly lot line and 10 feet southwesterly of the dwelling of Donato, the front of which likewise is on the street line of Princeton street. The Donato house is numbered 234 Princeton street and is located on a lot measuring 23.76 feet on Princeton street by 75 feet by land of plaintiffs, the title to which is registered in Land Court Case No. 32133. Defendants Bellitta own an L shaped lot at 236 Princeton Street, being 22.5 feet on Princeton street. The westerly line of this lot borders the easterly line of the Donato lot for 75 feet. Thence, the lot is bordered southerly by the northerly line of the Donato lot and westerly by the easterly line of the plaintiffs Pittellas' lot for the northerly 25 feet of the lot. Defendants' house is separated from the Donato house by the center line of a brick partition wall.

The plaintiffs' lot is located on the southeasterly portion of Lot 104 and the defendants Donatos' and Bellittas' lots on the northwesterly portion of Lot 103 (and perhaps in a small portion of Lot 104) on a plan by R.H. Eddy recorded in Suffolk Deeds, Plan Book 401, and which is not in evidence but which has been agreed to in the "Memorandum of Facts". Both of these lots were owned by one Emanuel Downing in May, 1875.

The deed by which plaintiffs acquired title to 226-228 Princeton Street (Exhibit 1) clearly states that the premises are "subject to a right of passage in and upon and over a passageway ten feet wide laid out along the Northeasterly boundary line of said granted premises". This was the right of way created by Emanuel Downing in the deed to Ebenezer M. McPherson dated May 20, 1875 and recorded in Suffolk Deeds, Book 1269, Page 271 set forth therein as "a right of passing and repassing in and over a passageway ten (10) feet wide laid out by me on Lot 104 aforesaid and adjoining the granted premises in common with others who are or may be legally entitled thereto" (See "Memorandum of Fact"). It came down through various predecessors in title to the plaintiffs.

The defendants Domenic Donato and Josephine Donato are the owners of the parcel at 234 Princeton Street under Land Court Certificate of Title No. 71548 (Exhibit No. 3). The certificate recites that "there is appurtenant to said land the right to use the passageway, as shown on said plan, in common with all persons lawfully entitled thereto in and over the same". The plan referred to is Land Court Plan 32133-A. It appears from this plan that the passageway 10 feet wide lies 1.13 feet on the parcel registered to the Donatos and on the parcel owned by Bellittas for the northerly 25 feet thereof and 8.81 feet on land owned by plaintiffs Pittella. As has been stated before, the Pittella house and the Donato house but up against this ten foot way on each side thereof.

The defendants Bellitta claim title under a deed from Anthony Geraci et al, Administrator w.w.a. of the estate of Jennie Geraci, dated December 4, 1976 and recorded in Suffolk Deeds, Book 8938, Page 581. This deed describes the L shaped parcel fitting around the Donato parcel and on the northwestern 25 feet butting onto land of plaintiffs and having 1.13 feet thereof subject to the passageway. This deed recites that it is "Together with all rights if any belonging to said conveyed premises in a ten foot passageway layed (sic) out by Emanuel Downing extending from Princeton Street on the northeasterly part of Lot 104 on said plan, being part lot 103, plan 401 end. (sic) (Exhibit No. 4)

There is thus no question as to the right of way. The plaintiffs agree that the defendants Bellitta (and Donato also) have the right to use the passageway. The only issue involved is the scope of the use that is permitted to the defendants Bellitta.

The evidence showed that this area of East Boston is heavily populated, with houses abutting other houses. Princeton street is a narrow one-way street with parking allowed on both sides of it. The houses usually house more than one family in each and only a few including plaintiffs' and defendants' have any off street parking.

The plaintiffs live with their 23 year old son and twenty year old daughter at 226-228 Princeton Street. At least 8.81 feet of the driveway is on land owned by them. At the rear of their house is an area used for parking automobiles, their own, their tenant's car, their son's, their daughter's boy friends' and at times a relative's car. To get in and out cars must pass over this passageway which has been hot-topped by plaintiffs. There was evidence that the plaintiffs had blocked this passageway just two or three weeks prior to the trial while workmen put up a staging while working on plaintiffs' house. They have at other times made repairs to their house and have used the driveway for this purpose. Their children were brought up there and played in the rear yard although plaintiffs denied the children ever used the driveway. The plaintiffs' use of the passageway is consistent with the use of any passageway in a heavily populated area such as this. It would appear on the whole to be reasonable use.

The same can be said for the use of the defendants. Their house is a three family house with the defendants occupying the second floor and tenants occupying the first and third floors.

After they bought the house in 1976 and moved in they made some repairs to it. During a period from June until September 1977 they had a carpenter and other workmen come in on Friday afternoons and Saturdays to make repairs to their house. These persons used the driveway to get into the parking area in the rear and to bring materials in. This use was for a limited time only as was the use defendants made of the passageway to bring in cement to construct a platform for a parking apron on their parcel at the rear of the Donato house. The plaintiffs had first agreed to allow defendants to bring in a cement truck but then objected when they saw the size of the truck. Mr. Bellitta, with some friends, brought in cement in wheelbarrows to build the parking apron. He later spent three hours cleaning up cement that had dripped on the passageway while being brought in. Altogether, the use of the passageway by defendants to repair their house and to surface the parking area is similar to the use made of the passageway by plaintiffs. It should be noted that plaintiffs made much of the fact that they had hot-topped the passageway.

One big complaint made by the plaintiffs had to do with the defendants' use of the apron and the passageway in the conduct of defendants' business. Mr. Bellitta is in the uniform business and almost every night he brought uniforms home with him in the trunk of his Chevrolet to take upstairs where his wife would sew emblems on the uniforms. In the morning Mr. Bellitta would throw the uniforms down the stairs, pick them up and put them in the trunk of his car to take to his business. The same number of trips were made over the passageway that would have been made had no uniforms been brought home. All in all, this use was not harmful.

To the claim that defendants have allowed others to park in the rear of their premises, the answer is that this is sporadic. Once the defendants allowed a neighbor to leave his car there while he went to Italy for three weeks. Defendants thought that they might have occasion to use this car but except for possibly one occasion they did not. One tenant parks in the rear along with the defendants; another tenant leaves his car on the street.

The Court concludes that both plaintiffs and defendants have made reasonable use of the passageway.

No overburdening of the easement has been shown. An easement granted in general terms is not necessarily limited to the uses made of the dominant estate at the time of the creation of the easement and it is available for all reasonable uses to which the dominant estate may thereafter be devoted. Marden v. Mallard Decoy Club, Inc., 361 Mass. 105 , 107 (1972).

Judgment accordingly.