EVAN FLOWERS, INC., vs. JOSEPH B. SCHULTE and LOUISE P. SCHULTE.

Plaintiff seeks a judgment establishing its rights to a right of way over defendants' property, an injunction prohibiting defendants from interfering with plaintiff's use and enjoyment of the right of way, costs, attorney's fees and such other relief as the Court deems just. In its complaint, plaintiff contends that defendants and persons acting under their direction and control have interfered with plaintiff's use and enjoyment of the right of way by parking vehicles thereon and by verbally abusing plaintiff, its employees, invitees, agents and guests.

Defendants answered denying generally plaintiff's allegations and praying that plaintiff be refused any relief on the ground that its claims are barred by its wrongful conduct. By way of counterclaim, defendants pray for a judgment establishing their rights in and to their property and the disputed right of way, a permanent injunction prohibiting plaintiff, its servants, employees, guests, agents and invitees from interfering with defendants' use and enjoyment of their property and from trespassing thereon, a judgment establishing plaintiff's title to a fuel storage tank located on defendants' property, an order directing plaintiff to empty the tank and to fill it with a safe material, and costs, attorney's fees and such other relief as the Court deems appropriate.

Plaintiff answered defendants' counterclaim denying generally defendants' allegations but admitting plaintiff has title to the fuel tank, which, plaintiff maintains, has been filled and presents no danger to defendants.

On February 15, 1980, after a hearing upon the motions of plaintiff and defendants, this Court issued a preliminary injunction in effect maintaining the status quo. Trial was held on October 10, 1980 at which a stenographer was sworn to take testimony. Six witnesses testified and nine exhibits were entered into evidence and are incorporated herein for the purpose of any appeal. The Court took a view of the property on November 6, 1980 at 5:30 P.M.

The Court finds the following facts:

1. Lot 1 and Lot 2 are shown on a plan of land entitled "Plan of Land in Peabody, property of Howard Evans et ux, scale 1" = 20', May 10, 1963, Osborn Palmer, Inc., 15 Wallis Street, Peabody" recorded in Book 5082, Page 381 at the Essex South District Registry of Deeds [Note 1] (Exhibit 2) and also on Appendix A attached hereto. [Note 2] Until August 29, 1963 Howard and Edith B. Evans were the owners of the two lots in question - the common predecessors in title of both plaintiff and defendants.

2. On August 29, 1963, the said Evanses conyeyed Lot 2 to George A. Foster and Genevieve Foster by a deed recorded in Book 5098, Page 399 (Exhibit 4). This deed contained the following recital:

"For the purpose of providing access between Warren Street and garage of the grantors now located on Lot 1 North of Lot 2, and for as long as said garage is used by the grantor and his grantees, in connection with the operation of a greenhouse on Lot 1, the grantors reserve a right of way over so much of Lot 2 as is now used for such access and more particularly bounded and described as a strip of land about ten feet wide along the Northwest bound of Lot 2 and the area between the house as shown on said plan and the Northeast and Northwest bounds marked 27.52 feet and 21.40 feet, respectively."

3. On January 4, 1971 Howard Evans and others conveyed Lot 1 to plaintiff corporation by a deed recorded in Book 5737, Page 374, (Exhibit 1). This conveyance granted to plaintiff the rights set out in paragraph 2 above. Plaintiff is a Massachusetts corporation engaged in the retail sale of flowers, plants and related material. Mr. Fonda G. Poole and his wife, Evelyn S. Poole are, and at all material times, have been, president and secretary respectively of plaintiff corporation.

4. On February 17, 1978 Genevieve D. Foster, the sole owner of Lot 2 (her husband had died) conveyed this lot with the house thereon to defendants Joseph and Louise Schulte by deed recorded in Book 6444, Page 441 (Exhibit 3), subject to the reservations set forth in paragraph 2 above.

5. At the terminus of the right of way is located a garage owned by plaintiff. At the front of this building are located a set of double doors and a conventional garage door. Originally, there was still another garage door to the southeast of the existing one but this has now been walled in with a window included thereon. The garage door is used by plaintiff for the purposes of receiving and dispatching goods related to its business and for allowing one of two vehicles owned by plaintiff to enter and park in the garage. Access to at least one of plaintiff's greenhouses can be had by passing through the garage.

6. Plaintiff's normal business hours during weekdays extend from 7:00 A.M. to 5:00-6:00 P.M. Each day between one and four deliveries of plants and related items are made to plaintiff and plaintiff makes from two to four dispatches of similar material. Dispatches by plaintiff are made on Saturdays as well, particularly during or preceding holidays. The officers and employees of plaintiff visit plaintiff's premises on Sundays for the purpose of inspecting the greenhouses and to check on the heat.

7. At the end of the driveway on Warren Street is a curb cut and a second curb cut is to the northwest thereof, between the driveway and the sales building of plaintiff, all as shown on Appendix A. The area shown as "parking lot" and the 10 foot wide right of way are paved with macadam, also as shown on Appendix A. Behind the house of defendant, as indicated, is a partially paved area where defendants normally park an automobile.

I. What are the rights of Plaintiff and Defendants in the way?

This is the major question raised in this case. There is no question as to the existence or location of the right of way for it is as shown on Appendix A. The issues of adverse possession or prescriptive rights do not arise. The deed of Lot 2 to the defendants' predecessor in title sets forth the reservation, in the grantor, of the right of way over the land conveyed. (see paragraph 2, above).

The conveyance of Lot 2 from this predecessor in title to the defendants was made subject to that reservation (see paragraph 4, above). The deed from the common grantor, conveying Lot 1 to the plaintiff, conferred upon the plaintiff the benefits of the right of way reserved in the deeds of Lot 2.

Thus, a right of way over Lot 2, approximately 10 feet wide along the northwest bound of Lot 2 and the area between the house located thereon, as shown on Appendix A, exists for the purpose of providing access between Warren Street and plaintiff's garage. This right of way is to exist for as long as the garage is used by the plaintiff in connection with the operation of a greenhouse situated on Lot 1. Because the way is fixed and well defined the plaintiff is entitled to use the entire width of the way for access and egress to and from its garage without obstruction by the defendants. Gerrish v. Shattuck, 128 Mass. 571 , 574 (1880); Carter v. Sullivan, 281 Mass. 217 , 223 (1932). Plaintiff may use the right of way at all times when such access is necessary.

This does not mean, however, that plaintiff's rights to use the way are unfettered. It may not, for example, overburden the way, although this is not an issue in this case. Further, plaintiff has no right to park vehicles for a long period of time so as to interfere with defendants' use of the way and this restriction applies to its own vehicles, those of its employees and its customers. Plaintiff has the right to use the way in a reasonable manner so long as such use is for the purpose of gaining access to the garage. This includes the right to drive vehicles over the way and to stop or park such vehicles at the garage for a reasonable period of time to load and unload flowers and other merchandise and supplies associated with plaintiff's business. Tehan v. Security National Bank, 340 Mass. 176 , 186 (1959).

Because the defendants are the owners of the fee of the right of way, they too have rights in it. As owners of the servient estate, defendants retain the use of their land for all purposes except those which are inconsistent with the right granted to the dominant owner. Western Mass. Electric Co. v. Sambo's of Mass., Inc., Mass. App. Ct. (1979). [Note 3] This has been held to include the right to park, as long as there is no interference with the rights of the owner of the dominant tenement. Brassard v. Flynn, 352 Mass. 185 , 189 (1967). Defendants may use the way in a reasonable manner but may not obstruct it or impede plaintiff in its use thereof. As owners of the servient tenement, defendants' rights in the way are subject to the rights of the plaintiff, as described above. Defendants have no right to block the right of way by parking vehicles on it.

In addition to the determination of the rights of the parties in the way, there are a number of ancillary issues arising from this litigation. The Court has viewed the lighting arrangements at plaintiff's premises, both by day and by night. Such lighting is required for the safety of plaintiff's employees and customers as well as for the protection of plaintiff's premises. The Court is of the view that the lighting is not, under the circumstances, excessive nor is it situated in such a way as to purposely disturb defendants, nor may it be in the future.

Plaintiff is the owner of a fuel storage tank located upon defendants' property. Plaintiff has stated that the tank has been filled with a safe material and presents no danger to defendants.

The Court assumes that this is the case and that this matter has been resolved to the satisfaction of defendants.

The Court observed that some slight damage had been done to one of the shingles on defendants' house. Defendants allege that this damage was caused by plaintiff, its servants or agents. Plaintiff denied responsibility for this damage. In any case, the damage is negligible and there is no evidence that the damage was intentionally or negligently inflicted. Because of the location of the right of way and its proximity to defendants' home, the way must be used with care.

Finally, defendants have alleged that plaintiff, its servants or agents intentionally directed fumes from their vehicles towards defendants' home. There is no evidence to support this contention. Defendants were aware that the property they purchased was subject to the right of way and the use to which the way was and would be put.

2. What shall be done to enforce the rights of the parties?

On February 15, 1980, this Court, by Justice Sullivan, issued a preliminary injunction ordering that the plaintiff, its agents, servants, guests, employees and invitees are not to park within the right of way as set forth in the deed duly recorded at Book 5098, Page 399; and that the plaintiff, its agents or servants a) are to draw or cause to be drawn a white dividing line on the boundary line between land of the plaintiff and defendants, b) with the consent of the defendants, to paint on the surface of said way in white paint "No Parking", (which has been done as observed by the Court on its view), c) to put within the plaintiff's shop a notice that there is to be no parking in the way, and d) generally to use its best efforts to keep invitees and guests out of said right of way. In addition, the defendants, the members of their family, their agents or servants were ordered not to park within the right of way from Monday to Saturday between the hours of 7:00 A.M. and 5:00 P.M.

For the most part, the parties have observed the terms of that injunction. Adherence to those rules has apparently lessened the confrontations and ensuing altercations between the parties which occurred prior to the issuance of the injunction. After trial, the Court sees no reason to vary the terms of the preliminary injunction with slight exceptions. Therefore the Court rules that a permanent injunction issue ordering plaintiff, its agents, servants, guests, employees and invitees not to park within the right of way, as set forth in the deed duly recorded at Book 5098, Page 399, except to load and unload vehicles at its garage door; that plaintiff is to maintain the white dividing line now marking the boundary line between the property of plaintiff and defendants and the white "No Parking" sign painted on the said right of way; that plaintiff maintain the notice now posted in its shop that there is to be no parking in the said way and that plaintiff use its best efforts to keep invitees and guests out of said right of way. This same permanent injunction shall order the defendants, members of their family, their agents or servants not to park within the right of way from Monday through Saturday, inclusive, between the hours of 7:00 A.M. and 5:00 P.M.

The Court cautions the parties that the provisions of this injunction be strictly observed.

Judgment accordingly.

exhibit 1