On December 19, 1986, John R. Doyle ("Doyle" or "Plaintiff") commenced the above-entitled action in the Middlesex Superior Court (Superior Court Case No. 86-7860) seeking a declaration of the rights, duties and other legal relations which he and Charles B. Westgate ("Westgate") and John R. Kenney ("Kenney") [Note 1] (collectively referred to as "Defendants") possess with respect to a certain easement ("Easement" or "slope easement") over a strip of land of approximately 140 feet in length and 20 feet in width, situated adjacent to the rear lot line of his property at 483 Summer Street, Arlington, Massachusetts ("locus"), as shown on plans entitled "Plan Showing Easement to Esso Standard Oil Company in Arlington, MA." dated May 28, 1986 (Exhibit No. 8) and "Encroachment Plan of Land" dated November 17, 1986 (Exhibit No. 9). The Plaintiff further seeks an Order requiring the Defendants to remove certain encroachments from the Easement, or in the alternative, an award of damages for the diminution in the value of his property caused by said encroachments.
On January 30, 1987, the matter was transferred to this Court and entered as Miscellaneous Case No. 122323. Thereafter on August 13, 1987, the Court granted the Plaintiff's motion to join the remaining Defendants ("Rangan, et al") as necessary parties under Mass. R. Civ. P. 19.
Defendant Westgate filed a Motion for Summary Judgment which was denied on January 15, 1988. The case then proceeded to trial on August 22, 1988; a stenographer was appointed to record and transcribe the testimony. Seventeen exhibits were introduced into evidence and four witnesses testified. All exhibits are incorporated herein for the purpose of any appeal. At the close of the Plaintiff's evidence, the Defendants, Rangan, et al, moved for a directed verdict, which motion was denied.
On all of the evidence before the Court, I make the following findings of fact:
1. Doyle acquired title to the locus and Easement on October 5, 1979 by deed from Exxon Corporation, [Note 2] recorded at Book 13189, Page 139 in the Middlesex South District Registry of Deeds [Note 3] (Exhibit No. 5). Doyle presently operates a service station on said premises, which facility, as well as the subject Easement, is shown on a plot plan dated June 19, 1956 (Exhibit No. 1).
2. Doyle's interest in the Easement is set forth in the grant from Zabel Moosesian to Esso Standard Oil Company dated May 29, 1956 and recorded in Book 8733, Page 426 (Exhibit No. 4) and similar right granted by Albert M. and Grace M. Kelley to Esso Standard Oil Company on May 2, 1956 and recorded in Book 8733, Page 428 (Exhibit No. 3). Said "right of subjacent support" is more particularly described as follows:
the right to place and maintain on the strip of land . . . earth banking to support fill and structures placed or to be placed . . . on [the locus] . . . (See Exhibits No. 3 and 4).
3. On March 26, 1985, Westgate, as Trustee of the Summer Street Real Estate Trust, [Note 4] acquired title to a certain parcel of land adjacent to the rear of Doyle's property, including the fee servient to the Easement, by deed from James B. Sickles and Barbara R. Payne, recorded at Book 16071, Page 142 (Exhibit No. 7). This parcel is commonly referred to as 449 Summer Street, Arlington, Massachusetts. At the closing held in March of 1985, counsel for Westgate disclosed to him the existence of Doyle's Easement.
4. In about May of 1985, Westgate, in his capacity as Trustee, commenced construction of Glenbrook Estates, a condominium development consisting of five buildings housing twenty-one residential condominium units as shown on a plan entitled "Development Plan of Glenbrook Condominium in Arlington, MA." dated March 24, 1986 (Exhibit No. 17), which plan fails to depict the Easement. As constructed, the building containing Condominium Units 2-7, 2-8, 2-9 and 2-10 ("Condominium") encroaches upon the Easement by various amounts ranging from 0 to 3.02 feet in depth and in one instance extending onto the Easement for approximately 29 feet in length, all as shown on the aforementioned "Encroachment Plan of Land". In addition thereto, four concrete patios which extend from the building encroach upon the Easement, as do four individual heat pumps which service said Units. Further, a four (4) foot high, eight (8) inch wide and approximately eighty-five (85) foot long retaining wall, as well as a stockade fence, have also been constructed within the easement area.
5. In about March of 1986, during the construction of Westgate's condominium development, Doyle noticed that the construction activity was extending into the area behind his service station. Consequently, Doyle voiced concern to Westgate about the project, this concern being focused on the proximity of the construction to gasoline vents located on his property, rather than the slope easement. Following their conversation, Westgate informed Doyle that, due to a miscalculation, the Condominium was encroaching upon Doyle's Easement.
6. Despite Westgate's having had knowledge of Doyle's Easement since at least early 1985 when the real estate closing with respect to 448 Summer Street took place, Westgate proceeded to extend construction of his condominium development into the easement area.
7. Upon completion of the Glenbrook Estates condominium development, Units 2-7 through 2-10 were placed on the market. At present, Unit 2-7 is owned and occupied by the Defendants, Kasturi and Jayanthi Rangan, Unit 2-8 is owned and occupied by the Defendants, Kurt E. and Elizabeth J. Mueller and Unit 2-9 is owned and occupied by the Defendants, Elizabeth and Florence Murphy. The Defendant, Medford Savings Bank, is the mortgagee of the entire Glenbrook Estates condominium development, including Units 2-7, 2-8 and 2-9. The present status of Unit 2-10 is unclear from the record before the Court.
The evidence clearly establishes that the Plaintiff holds title to the dominant estate by express grant while Westgate owns the estate servient to the Easement. In determining the parameters of the parties' respective rights and duties with regard to said Easement, the Court is guided by the well-settled rule in Massachusetts that the owner of land servient to an easement is permitted to use his land for all purposes, except such as are 'inconsistent with the right granted to the dominant owner. Western Massachusetts Electric Co. v. Sambo's of Massachusetts, Inc., 8 Mass. App. Ct. 815 , 818 (1979); Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967); Ampagoomian v. Atamian, 323 Mass. 319 , 323 (1948); Merry v. Priest, 276 Mass. 592 , 600 (1931). In balancing the relative rights and duties of the easement holder against those of the owner of the underlying fee, the Court applies a standard of reasonableness. Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504-505 (1986); Barchenski v. Pion, 9 Mass. App. Ct. 896 , 897 (1980); Western Massachusetts Electric Co. at 825. In other words, the owner of the servient fee is free to use and improve his property so long as such activity does not materially interfere with the easement holder's use of the Easement. Western Massachusetts Electric Co. at 818; Merry at 600. More specifically, it has been stated that the owner of the servient estate may not use the property subject to the Easement in a way which would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights. Texon, Inc. v. Holyoke Machine Company, 8 Mass. App. Ct. 363 , 366 (1979). These principles of law, however, should not be applied so as to abrogate the specific rights granted to the easement holder. Western Massachuestts Electric Co. at 822.
In the instant case, the language of Doyle's deed, and the references made therein, provide that the Easement includes the right to place and maintain thereupon earth banking to support fill and structures placed, or to be placed, on the locus (See Exhibits No. 3 and 4). Inasmuch as the extent of any easement is to be determined, at least in part, by the language of the grant, Pion v. Dwight, 11 Mass. App. Ct. 406 , 411 (1981), and as an easement stated to be for a particular purpose may only be used for that limited purpose, Makepeace Bros. Inc. v. Town of Barnstable, 292 Mass. 518 , 525 (1935), Doyle's express rights in the Easement, as noted above, may be exercised with respect to the service station presently situated on the locus or structures or f ill to be erected thereupon at a later date. In any event, however, by virtue of his holding the Easement, Doyle retains the right to use it whenever such use may become necessary, desirable or incidental to construction on, or further development of, his property.
Applying the foregoing principles to the case at bar, I find that the language of the Easement permits the Plaintiff and his successors to supply lateral support to structures and/or fill placed, or to be placed, upon the locus in the future, solely by the placement of earth banking upon the Easement. In the absence of any evidence to the contrary, I find the natural angle at which such support will be stable ("angle of repose") to be forty-five (45) degrees, thereby determining the maximum amount of banking which the Condominium may be called upon to laterally support to be approximately 3+ feet at maximum. Hence, insofar as the Condominium structure itself appears with all reasonable likelihood to offer support to such banking in a manner equivalent, or at least comparable to, that of a continuing sloped embankment, such structure need not be removed from the servient fee. The Defendants, Rangan, et al, however, must be aware that at some time in the future the Plaintiff or his successors may place fill directly against the rear walls of said Condominium in a manner consistent with and for the stated purposes of the Easement. Similarly, as the retaining wall and stockade fence which Westgate has erected approximately two feet from Doyle's rear property line, but within the Easement area, provide lateral support against any eventual collapse of the existing embankment, an eventuality against which the Defendants, Rangan, et al, may reasonably protect their property, I find that they too serve a function which is comparable to that of an earth banking and accordingly, their removal is not warranted. Again, however, this does not abrogate the right of the Plaintiff or his successors to place additional earth on said Defendants' side of the fence and wall should such action appear necessary or desirable in exercising the purposes of the Easement.
As noted above, Westgate has also constructed four concrete patios and placed four individual heat pumps within the Easement area. Inasmuch as said patios are mere concrete slabs on the ground, I find that, in the event Doyle exercises his easement rights, fill may be readily piled over these patios without materially interfering with Doyle's use of the Easement. Considering the composition and function of the electric heat pumps, however, it is clear that earth cannot be piled on or around them without interfering with, if not totally disrupting, their function. Accordingly, unless these pumps are removed from the easement area, further litigation between the parties will most likely result. As the great likelihood of such additional litigation may be characterized as a "material interference" with Doyle's rights in the Easement, I must rule that Westgate, [Note 5] or the owners of the encroaching pumps, be required to remove the pumps within ninety (90) days of the entry of a final judgment herein, or alternatively, that Westgate, or the appropriate owners of the pumps, agree to preserve Doyle's easement rights without further litigation by posting a bond or by some other means acceptable to Doyle. In addition thereto, the Defendants are hereby restrained from the installation of any permanent structure in or on the Easement, which would unreasonably interfere with the future exercise of Doyle's rights therein. I decline herein to grant the Plaintiff's request for an award of damages, as the evidence fails to support such a finding.
The Plaintiff and all of the Defendants have submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts which I deem pertinent.
[Note 1] On April 14, 1988, the parties stipulated to the dismissal of all claims asserted against the Defendant, John R. Kenney, individually, with prejudice.
[Note 2] By merger, the Exxon Corporation became the successor to the Esso Standard Oil Company.
[Note 3] All recorded documents referred to herein are at this Registry.
[Note 4] On March 26, 1985, Defendant Kenney resigned as Co-Trustee of the Summer Street Real Estate Trust.
[Note 5] The present owner(s) of the electric heat pumps is not clear from the evidence before the Court.