ANTHONY A. FRANCHI and CONSTANCE FRANCHI vs. JULIAN M. SOBIN and LEILA SOBIN.

This matter comes before the court upon cross-motions for summary judgment.

The plaintiffs, Anthony A. Franchi and Constance Franchi, filed a complaint (twice later amended) on April 30, 1979, to prevent the construction of a "pier and dock" on property owned by the defendants, Julian M. Sobin and Leila Sobin. The plaintiffs allege that the property upon which the defendants plan the construction is subject to an easement for foot passage in favor of the plaintiffs and that the construction, installation and maintenance of the "pier and dock" will wrongfully deprive the plaintiffs of the enjoyment of their easement rights. The plaintiffs further aver that the defendants' construction plans were not approved by the "Trustee" (sic) of the Bluff Point Association Trust as required under Declaration of Restrictions governing the subdivision.

In their requests for relief set forth in the original complaint, the plaintiffs pray that the court issue temporary and permanent restraining orders enjoining the defendants from con­ structing the "pier and dock"; issue an order to the defendants to remove from said easement any piers, footings, pilings or other construction built by them over and upon said easement; and enter judgment in their favor in the amount of $500,000.00 together with costs for the defendants' wrongful acts in interfering with the plaintiffs' rights to said easement. [Note 1]

On May 14, 1979, the court issued a preliminary injunction restraining the defendants from constructing the proposed pier and dock.

On May 21, 1979, the defendants answered, admitting their plans to construct a "dock" on Lot 8, claiming that the planned construction would not be in violation of any rights of the plaintiffs. The defendants further claimed that the plaintiffs' complaint failed to state a claim upon which relief could be granted. [Note 2]

On July 5, 1979, James A. Ryan, Jr. filed a motion to intervene as party plaintiff which was allowed together with an intervenor complaint. The defendants answered on August 3, 1979. By stipulation filed with the court on November 26, 1979, the parties assented to the dismissal of the intervenor complaint.

Based on the pleadings, the affidavits and attached exhibits, the admissions, documentary and those made at oral argument, written stipulations and answers to interrogatories, the court rules that there are no genuine issues as to any material facts. Therefore, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. See Community National Bank v. Dawes, 369 Mass. 550 (1976).

From all of the aforesaid information I find the following facts:

1. The plaintiffs and the defendants are owners of shore front property in the "Bluff Point Development" on Cotuit Bay, in Cotuit, Barnstable County. The development consists of fourteen lots.

2. The lots owned by the parties are part of a common development scheme and all parties derived title to their respective lots through a common grantor; Thomas A. Wooters, Trustee of Cotuit Trust under Declaration of Trust dated May 2, 1973, and recorded with Barnstable County Registry of Deeds in Book 1851, Page 170. [Note 3]

3. Plaintiffs owned Lots 11 and 12 when they filed their complaint. The complaint was amended on November 26, 1979, to reflect their acquisition of Lot 10 subsequent to the filing of the original complaint. The defendants own Lots 7, 8 and 9, all lots being shown on a subdivision plan dated September 11, 1973, which is recorded in Book 280, Page 58.

4. The plaintiffs and defendants took title to their respective lots subject to and with the benefit of restrictions and easements which are set forth in the "DECLARATION OF RESTRICTIONS OF BLUFF POINT IN COTUIT" (The "Restrictions") dated May 14, 1974 and recorded in Book 2040, Page 184.

5. As part of the common development scheme, the developer and common grantor of the parties created a common bathing beach on the shore part of Lots 7 and 8 as set forth in paragraph E of the Restrictions as follows:

"E. Easements and Reserved Rights

1. Each lot shall have the benefit of a ten foot wide right of way for access by foot to the shore across that portion of Lot 9 which adjoins Lot 10. In addition, each Lot shall have the benefit of an easement on that portion of Lots 7 and 8 bounded on the North, East and South by Cotuit Bay, and on the West by a line approximately 200 feet in length commencing at a point on the Cotuit Bay boundary of Lot 8 and proceeding South 15° 01' 16" West to intersect the boundary between Lot 7 and Lot 8 at a point 610 feet distant, by two courses along said boundary line, from Bluff Point Drive, and continuing along the same course to a point on the Cotuit Bay boundary of Lot 7, such easement to be limited, however, to the right to use the area so defined as a bathing beach."

6. The (beach portion of the) land owned by the defendants is subject to an easement in favor of all property owners in the subdivision, including the plaintiffs, as set forth in the Restrictions in paragraph E.1 as follows:

"Each Lot owner, the members of his immediate family and house guests permitted as herein provided, shall have the right to walk the shore of the Premises, defined, for this purpose, as the area between the water and the perimeter of the land area covered by vegetation, such right to include a right of access to the bathing beach previously defined."

7. Paragraph C of the Restrictions entitled "construction" provides:

"1. No buildings or other structures or fixture, improvement on (sic) appurtenance or (sic) any kind (hereinafter collectively referred to as 'Structures') shall be erected, placed or allowed to stand on any lot shown on the said subdivision plan except one detached dwelling house designed as a residence for one family, one garage adapted for the storage of not more than three pleasure vehicles (which may be constructed as an integral part of the dwelling house or as a detached building), suitable garden structures and necessary and appropriate accessory buildings, such as green houses, docks, boat houses, pool houses or tool sheds. No dwelling house shall be used for any purpose other than as a dwelling for one family, provided, however, that nothing herein shall be deemed to prohibit the presence of family, servants of (sic) nonpaying guests.

2. No Structure shall be moved onto, erected, constructed or maintained upon the Premises or any portion thereof and no alteration, addition, remodeling or change in the exterior of any such Structure, (the word 'Construction', as used herein, shall include any such activity) shall be undertaken or made until plans and specifications drawn to a suitable scale by an architect, engineer or designer showing the nature, kind, shape, height, materials, location, appearance and grading plan thereof shall have been submitted to and approved by the Grantor, or such person or persons as may be designated by the Grantor. The Grantor shall have the right to refuse to approve any such submission, in whole or in part, if, in the opinion of the Grantor, the same would not be suitable or desirable for aesthetic or other reasons, and shall take into consideration, among other factors, the suitability of the proposed structure, siting, landscaping, harmony with the general neighborhood and the extent to which the same may inter­ fere with or degrade the view from any other portion of the Premises, particularly the view in the direction of the water. The owner may commence Construction at any time within two years after the date of such written approval, but, once Construction has begun, the Structure must be completed as to outside appearance and shall be suitable for occupancy (but not necessarily complete in every respect) within one year of the commencement of Construction, if a dwelling, or within six months of the commencement of Construction in the case of any other structure. Any disapproval shall be accompanied by a statement of the reasons therefore. Failure to approve or disapprove such plan and specifications within thirty days after they have been submitted in writing and in proper form shall be deemed to constitute approval, as shall failure to commence an action or to file a notice of disapproval or a certificate with the Barnstable County Registry of Deeds within six months or the latest of (i) the date of disapproval, (ii) the date of procural of a building permit, or (iii) the date of commencement of construction. Restrictions ¶¶ C.1, C.2."

8. The successors to the "Grantor," and those persons designated by him to approve construction plans referred to in C. 2 above, are the Trustees of the Bluff Point Association Trust, under declaration of trust dated September 7, 1977, and recorded in Book 2656, Page 1. Under the provisions of the trust (Article V, Section 3), the Trustees may act by majority vote.

9. As set forth in Part D of "The Restrictions," at such time as the "Grantor" under said Declaration of Restrictions was no longer the record owner of any lot in the Bluff Point Subdivi­ sion, all of the rights granted to and reserved by the said Grantor were deemed to be rights reserved for and granted to the Trust.

10. By deed dated September 2, 1977, recorded on September 9, 1977, in Book 2578, Page 266, Thomas A. Wooters, Trustee of Cotuit Trust, conveyed Lot 9 at Bluff Point to John H. Bush and Barbara Ann Bush.

11. With the recording of said deed, Thomas A. Wooters was no longer the record owner of any lot in the Bluff Point Subdivision.

12. The original trustees of the Bluff Point Association Trust were George C. Day, Alan L. Kovacs and Peter B. McGlynn.

13. By the terms of Article V, Section 1, of the Bluff Point Association Trust, the terms of office of the original Trustees of the Trust were, upon the recording of the deed from Wooters to Mr. and Mrs. Bush, deemed vacant but did not expire until such vacancies were filled by election of the subdivision lot owners in the manner set forth therein.

14. On December 15, 1977, at a duly called meeting of the lot owners at which a quorum was present and acting throughout, the following persons were named Trustees of the Trust: William H. Sullivan, Jr., Mary Sullivan and Charles W. Sullivan.

15. The succession of Trustees after the December 15, 1977 meeting is confused in the record. Sometime after December 27, 1977 at a duly called meeting of the lot owners at which a quorum was present and acting throughout, the following persons were elected Trustees of the Trust to serve until their successors were elected and qualified: Charles W. Sullivan, John H. Bush and Franklin T. Sweet.

16. By instrument dated December 29, 1978 and recorded at Book 2656, Page 1, Charles W. Sullivan, John H. Bush and Franklin T. Sweet certified that they were the sole Trustees of the Bluff Point Association and that Franklin T. Sweet was also the secretary.

17. Although there is some indication in the record that Mr. Sweet and Mr. Bush may have desired to resign, on November 26, 1979, the parties stipulated and agreed, and I find, that no written notice of resignation in recordable form had been given to the secretary or recorded in accordance with Article V, Section 2 of the Bluff Point Association Trust by any of Messrs. Sullivan, Sweet or Bush.

18. The court, therefore, finds that at least between December 29, 1978 and November 26, 1979, Mr. Sweet and Mr. Bush were Trustees and that Mr. Sullivan was a Trustee at least between December 15, 1978 and November 26, 1979.

19. In December, 1977, the defendants proposed to construct on the beach portion of Lot 8 a timber and pile structure commencing at the vegetation line and traversing the entire width of the beach between the vegetation and the water and extending into Cotuit Bay. The proposed plan provided for steps on either side of the structure near the vegetation line to accommodate people walking along the beach.

20. Pursuant to the Declaration of Restrictions, the defendants submitted requests for approval from the Trustees of the Bluff Point Association Trust.

21. The court finds that the original proposed structure spanning the entire width of the beach between the line of vegetation and the water was approved by the Trustees pursuant to Paragraph C. 2 of the Restrictions which provides that "Failure to approve or disapprove [such plan and specifications] within 30 days after they have been submitted in writing and in proper form shall be deemed to constitute approval ..."

22. On November 14, 1979, defendants, in their motion for summary judgment in this case and in order to obviate the need for protracted litigation, revised their proposal, without prejudice, to provide for 15 feet of open space between the end of the structure and the vegetation line so that people walking along the beach would not be inconvenienced.

23. The shortened structure which leaves fifteen (15) feet unobstructed between the structure and the vegetation was expressly approved in writing by Charles W. Sullivan, Trustee and John H. Bush, Trustee who together comprise a majority of the Trustees. Said approval was given in an undated Certificate of Trustees. Mr. Sullivan and Mr. Bush's signatures were notarized on November 6 and 13, 1979, respectively.

24. Approval for the structure as originally proposed which would have spanned the entire width of the beach up to the vegetation line, had previously been given by the Massachusetts Department of Environmental Quality Engineering on December 8, 1977. (See License No. 414 recorded in Book 2780 at Page 1 and as referenced on the Permit No. 11-77-706 issued by the Department of the Army dated February 22, 1979 and recorded in Book 2909 at Page 153).

25. The Corps of Engineers' approval was based on an evaluation of the probable impacts of the proposed structure and its intended use on the public interest. After a "careful weighing of the benefits which reasonably may be expected to accrue from the project against its reasonably foreseeable detriments," the Corps found that it was in the "public interest" to issue a permit for the defendants' pier and dredging on Lot 8.

The Corps of Engineers based its decision on, inter alia, the following major factors that appear in its findings of facts dated February 22, 1979:

A) A public notice of the proposed construction was issued on January 12, 1978.

B) Approximately 150 letters of objection and 13 letters in favor were received in response to the notice.

c) A public hearing was held in Cotuit on June 29, 1978, and 250 people, including plaintiff Anthony A. Franchi, attended. Opinions were about evenly divided pro and con.

D) The comments of all relevant state and federal agencies were solicited and incorporated into the Corps' findings.

E) The defendants wished to construct the pier for the purpose of mooring three (3) of their small boats in front of their home, giving them convenient access to Cotuit Bay.

F) There is no obvious public need for the proposed pier, but the private need for access to navigable waters is "normally considered a basic riparian right."

G) Many Cotuit residents have used the town dock (located on the shore opposite the proposed pier site) to moor their boats and authorization of the defendants' pier may encourage the proliferation of large piers along Cotuit's shore and discourage the improvement and expansion of the town dock.

H) Among the benefits to be gained by the construction of the pier would be that the defendants would have a private docking facility and slightly less mooring space would be required by them at the already overcrowded town dock.

I) Among the detriments caused by the construction would be the "minor obstruction" to people walking the shore. (The elevation of the dock would be sufficiently high so that people could pass under it at low water, but it would be difficult at high water). In addition, in the opinion of some people, the pier would detract from the aesthetics of the area.

J) The potential cumulative effect of the construction could change the character of the area from an "open unobstructed bayshore to a developed one" if other owners along this beach request authorization to build similar structures.

K) Although shorefront property owners along Cotuit Bay have refrained from building piers, private piers are considered an "accessory use to waterfront homes" and are consistent with the designated land use classifications of the area.

26. By stipulation dated November 27, 1979, the parties agreed that the width of the beach at approximate mean low tide is fifty-four (54 ) feet; the width of the beach at approximate mean high tide is twelve (12) feet; the height of the top of the pilings at the end of the dock is 7.8 feet at mean high water; and the height of the remainder of the dock is five feet at mean high water. [Note 4]

There is confusion in the record over the characterization of the defendants' proposed structure. Plaintiffs, in their complaint, assert that the structure is a "pier", not a "dock", and therefore contend that the original common grantor did not sanction such a structure.However, plaintiff Anthony A. Franchi refers to the proposed construction as a "dock" in the affidavit he filed in support of plaintiffs' motion for summary judgment. Defendants maintain that the structure is a "dock", thus specifically sanctioned by the grantor in the Declaration of Restrictions. However, the defendants have also submitted to the court the Army Corps of Engineers' Report that characterized the structure as a "pile and timber pier".

According to the American Heritage Dictionary (1969 edition) a "pier" is "a platform extending from a shore over water and supported by piles or pillars, used to secure, protect and provide access to ships and boats" (Page 992). The same source defines a "dock" as "1. the area of water between two piers or alongside a pier that receives a ship for loading, unloading, or repairs. 2. a pier or wharf." (Page 387).

The construction proposed by the defendants includes a 144 foot timber supported structure that begins on land and extends 125 feet beyond mean high water into Cotuit Bay. I find this structure is a "pier".

In addition, the plans call for the dredging of 800 c.y. of sand, gravel and mud material from 125' X 80' section adjacent to the pier and extending 195' beyond mean high water. I find that the basin that will be created by the dredging is a "dock".

Although in common usage "dock" is sometimes used to refer to the entire area, including the "pier" where vessels load and unload, I find that the proposed structure and adjacent dredged area technically constitute both a pier and a dock. This technical distinction, however, is not dispositive of the issues before the court.

The questions before the court are whether the proposed structure is of the type over which the common grantor (and successor trustees) have the reserved discretionary right of approval under the Declaration of Restrictions and, if so, whether the structure would wrongfully interfere with the plaintiffs' easement.

In resolving these questions, "[T]he court must consider the extent of the parties' rights in light of all the factors which bear on the intention of the grantor, including the terms of the grant creating the rights of way and the then existing circumstances." Cape Cod Hospital, Inc. v. Cape Cod Medical Center, Inc., Mass. App. Ct. (1979). [Note a]

Plaintiffs contend that since piers were not specifically referred to as possible structures for which the common grantor (and successor trustees) might give approval under the Restrictions governing the subdivision, piers are therefore not within the class of structures for which approval may be given. However, it is clear from the broad introductory language in paragraph C.1 that speaks of "buildings or other structures, or fixture ... of any kind" and which are thereafter collectively referred to therein as "structures", that the enumeration of certain specified structures such as "green houses, docks and boat houses," is not meant to delimit approval for other structures not specifically mentioned. Although piers are not mentioned, piers could come within the definition of "necessary and appropriate accessory buildings." A pier, of course, is not a building, but neither is a dock a building, and the construction of docks is a specifically contemplated use of the premises.

The court therefore finds and rules that the proposed pier is a structure of the type for which Trustee approval may be given.

The language creating an easement in favor of the plaintiffs may be construed as either defining the width of the way or as indicating the area over which a way should be located. Generally, if the easement defines the width of the way, the holder of the easement is entitled to the unobstructed use of the way throughout its entire width. Carter v. Sullivan, 281 Mass. 217 , 223 (1932).

If the easement merely indicates the area in which the way should be located, then the holder is entitled to only a reasonable means of passage. Barrett v. Duchaine, 254 Mass. 37 , 41 (1925).

The language creating the plaintiffs' easement raises an inference that the holder has rights other than a mere convenient means of access to the common bathing beach located on Lots 7 and 8. The easement is said "to include, a right of access to the bathing beach previously defined." (emphasis added) Declaration of Restrictions E.1.

The above language, standing alone, would bring the facts of this case within the holding of Carter v. Sullivan. In Carter the plaintiff brought a bill to compel the removal of, inter alia, a fence and gate erected by the defendant. The gate narrowed access to a passageway over which the plaintiff had a right of way in common with others. A master found that the easement was created to provide for foot passage and garbage removal. The court held that "The narrowing of the space available for use to the width of the gate is, therefore, an interference with the plaintiff's rights of passage." Id. at 223. Accordingly, the court ordered the removal of the fence and gate.

The facts in the instant case differ from those in Carter v. Sullivan in one major respect, however. In Carter the court relied on the language creating the easement because no other indication of the grantor's intent was available. In the present case, the court has the benefit of other language in the Declaration of Restrictions that is contradictory to the creation of an easement that would include use of the full unobstructed width of the beach.

Thus, the same instrument that created the easement provided for the right to construct structures that could be located on the area over which the plaintiffs have easement rights.

A lot owner's right to erect structures is not unbridled. Paragraph C.2 of the Restrictions provides that plans for construction must be submitted to and approved by the grantor or such person(s) as he may designate. The right to approve construction is presently reserved to the Trustees of the Bluff Point Association Trust. The Trustees are given wide discretion in their decision making; taking into consideration the aesthetics of the proposed construction and the way in which the structure will impact the view, particularly the view toward Cotuit Bay.

There is, however, no prohibition in the Restrictions on construction between the vegetation line and the water mark. To the contrary, the Restrictions set forth the qualified right to construct structures that could be located in that area, thereby interfering to some extent with the plaintiff't easement.

Under these circumstances, it is not necessary to decide whether the way is a convenient one or whether apart from the additional terms of the grant the dominant owners would have been entitled to use throughout the entire width of the premises. See J. S. Lang Engineering Co. v. Wilkins Potter Press, 246 Mass. 529 (1923).

Taking the terms of the instrument as a whole, the court finds and rules that the original grantor did not intend that the shore remain unobstructed throughout.

The question then becomes whether or not the plaintiffs' easement will be unduly burdened, and their rights materially interfered with, by the proposed construction that leaves a fifteen (15) foot opening between the structure and the vegetation line.

A servient estate owner may use the easement land for all purposes which are not inconsistent with the easement, Western Massachusetts Electric Co. v. Sambos, Mass. App. Ct. (1979) [Note b]; Ampagoomian v. Atamian, 323 Mass. 319 , 322 (1948), or which do not materially interfere with its use. Carter v. Sullivan, 281 Mass. 217 , 225 (1932). The owners may not make the way less convenient to any appreciable extent. Vinton v. Greene, 158 Mass. 426 , 433 (1893).

In Stucchi v. Colonna, Mass. App. Ct. Adv. Sh. (1980), [Note c] the Court upheld the defendant's right to erect and lock gates across the plaintiff's easement so long as the plaintiffs were provided with keys. Citing Western Massachusetts Electric Co. v. Sambo's, the Court stated that the question is "[w]hat is reasonable in the use of the property of the respective parties." Id. at 333.

"The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights." Texon, Inc. v. Holyoke Mach. Co., Mass. App. Ct. (1979). [Note d]

The only inconvenience that will be suffered by the plaintiffs is that for a four (4) foot length of beach (the width of the pier) they will not have access to the entire width of the beach. In the context of approximately 775 linear feet of shoreline comprising Lot 8 the inconvenience cannot be considered appreciable. In addition, at mean high tide the water comes within twelve (12) feet of the vegetation line. Thus, for a portion of each day the plaintiffs will not be inconvenienced at all. Further, the elevation of the pier will be sufficiently high so that people can walk under it at low tide.

The plaintiffs also argue that their view of Cotuit Bay will be harmed if the defendants are allowed to construct the pier and dock. This may well be true, but that is not for the court to decide. The issue before this court is whether or not the proposed construction will materially interfere with the plaintiffs' easement rights. Aesthetic considerations have been left by the common grantor to the discretion of the trustees of the Bluff Point Association Trust. So long as their actions do not interfere with the plaintiffs' easement, which is not an easement for view, their actions are not in issue.

It has also been suggested that if the defendants build their pier and dock, other subdivision lot owners may desire to construct similar structures, thus changing the unobstructed character of this portion of Cotuit Bay. This result is not inevitable. The future of Cotuit Point is within the control of the subdivision lot owners and government permit granting authorities. It was the intent of the common grantor that the Cotuit Point Association Trust, through its trustees, promote the health, safety and welfare of the lot owners. If they are displeased with the way in which the trustees have exercised their discretion, their recourse is to elect trustees who will better represent their wishes. In any event, it is not for the court to interfere with the discretion of the trustees when the legal rights of the plaintiff property owners have not been abridged.

I therefore rule that as long as the plaintiffs have a fifteen (15) foot open space, commencing at the vegetation line, through which they can freely pass, the defendants' pier will not materially interfere with the plaintiffs' easement.

Defendants' motion for summary judgment is allowed and the plaintiffs' motion for summary judgment is denied.

Judgment to enter accordingly.