JOHN PESCE, PAUL PESCE and DONALD PESCE vs. STEPHEN GOODWIN and GERALDINE GOODWIN.

On December 31, 1987, John, Paul and Donald Pesce ("Plaintiffs") filed a complaint in the Land Court seeking a declaration, pursuant to G.L. c. 231A, that a certain common driveway agreement ("Agreement") (Exhibit No. 1) executed on December 14, 1928 and recorded at Book 5309, Page 392 in the Middlesex South District Registry of Deeds [Note 1] is in force and binding upon them and Stephen and Geraldine Goodwin ("Defendants") and also seeking a declaration that they, the Plaintiffs, have the right to use the common driveway ("driveway") to gain vehicular access to the rear of their property. The Plaintiffs further seek the entry of an Order requiring the Defendants to remove permanently all obstacles interfering with the Plaintiffs' rights in the driveway, as well as an award of damages. The Defendants filed a counterclaim in this action on January 25, 1988 seeking a determination that the Plaintiffs' rights in the driveway have been abandoned due to nonuse of the same for a period in excess of twenty (20) years.

Pending resolution of this matter, the Plaintiffs sought the issuance of a preliminary injunction enjoining the Defendants from interfering with their rights in the driveway. The preliminary injunction was denied on January 20, 1988.

On December 1, 1988, a trial was held in the Land Court, at which the appointment of a stenographer was waived. Three witnesses testified and three exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal.

On all of the evidence, I find the following facts:

1. The Plaintiffs, and Amadeo J. Pesce, acquired title to a parcel of real estate located at 18 Reed Avenue in Everett ("Parcel No. 18") on November 5, 1986, by deed recorded at Book 17553, Page 459. Thereafter in June of 1988, the Plaintiffs converted the three-family residential dwelling situated on Parcel No. 18 to three residential condominium units.

2. By deed dated August 11, 1977, recorded at Book 13261, Page 3049 the Defendants acquired title to property located adjacent to Parcel No. 18, known as 20 Reed Avenue, Everett ("Parcel No. 20"). At this time, there existed a chain link fence of approximately twelve (12) feet in height along the rear property line between Parcels No. 18 and 20. This fence presently stands at the same location.

3. On April 11, 1941, a building permit (Exhibit No. 3) was issued to the Plaintiffs' predecessor in title, I. Porter, for purposes of constructing a staircase in the rear of the building situated upon Parcel No. 18. At present, such building is greater in both length and width than the structure located on Parcel No. 20, the additional length being comprised of said enclosed rear staircase which extends from the side of Parcel No. 18 which is adjacent to Parcel No. 20 and the driveway.

4. Parcels No. 18 and 20 are separated by a driveway of between five (5) and nine (9) feet in width, said driveway being the subject of the aforementioned agreement executed by the Plaintiffs' and Defendants' predecessors in title, which provides in pertinent part as follows:

it is hereby mutually agreed by and between all of the parties hereto that the land between the two houses numbered 20 Reed Avenue and 18 Reed Avenue in said Everett be kept free from all obstructions for the purpose of maintaining thereon a permanent driveway for the passage of automobiles to enter and re-enter their respective garage located in the rear of the afore-mentioned land. And it is also agreed that the parties hereto shall each pay one half of the expense of the entry thereto from said Reed Avenue. The parties hereto, for themselves, their successors, heirs, executors, administrators and assigns, do covenant with each other that the agreements herein contained shall be covenants running with the land . . . emphasis added.

5. The passage between the rear of the building located on Parcel No. 18 and the chainlink fence referred to in Finding No. 2, above, is too narrow to provide safe access for most vehicles from the driveway to the rear of such property. Since 1977, however, the Defendants have observed persons gaining vehicular access thereto with automobiles of small size. Passage by most vehicles could be obtained were it not for the enclosed rear staircase. There is no difficulty in such vehicles entering the rear yard of Parcel No. 20.

6. At some time after November 5, 1986, the Plaintiffs attempted, although unsuccessfully, to park automobiles in the rear yard of Parcel No. 18. They removed a portion of the chain link fence in order to attain such access, only to discover shortly thereafter that the Defendants had erected a temporary or makeshift fence in its place.

The extent of any easement is determined by the language of the grant, construed in light of the attending circumstances. Hewitt v. Perry, 309 Mass. 100 , 105 (1941); Marden v. Mallard Decoy Club, Inc., 361 Mass. 105 , 107 (1972); Barchenski v. Pion, 9 Mass. App. Ct. 896 (1980). Accordingly, as successors-in-title to the original parties to the common driveway agreement executed and recorded in December of 1928, the Plaintiffs and Defendants possess equal rights of passage and repassage over the entire driveway for purposes of gaining access to the rear yards of their respective properties. By this action, however, the Plaintiffs contend that their express easement rights have been obstructed by the existence of a chain link fence along the property line separating Parcels No. 18 and 20. The Defendants assert to the contrary that it is the length of the building situated upon Parcel No. 18, and not the fence, which is interfering with the Plaintiffs' easement rights. On all of the evidence, I find and rule that the Plaintiffs have failed to sustain their burden of establishing facts necessary to support their position.

The evidence introduced at trial reveals that, in 1928, the owners of Parcel No. 18 were contemplating the construction of a garage in the rear yard of the property. It is thus reasonable to infer therefrom that, following the execution of the common driveway agreement, the oners of Parcel No. 18 built such a structure and utilized the driveway for purposes of obtaining vehicular access to the same. The evidence further reveals that, in 1941, the owner of Parcel No. 18 was issued a building permit for purposes of constructing a staircase in the rear of the building located thereupon. From this and other evidence, I find that the 1941 improvements upon Parcel No. 18 caused the present interference with the Plaintiffs' easement. While the literal language of said easement covers only the land lying between the buildings as they stood in 1928 the language must also be interpreted as granting rights over such land at the rear of the buildings as may be necessary to make the turns into the respective rear yards. Once such "turning easement" has been established, as it was in this instance in about 1928, neither party may extend his rights into his neighbor's property by merely extending his building into the turning area. I therefore find and rule that the Plaintiffs have not met their burden of proving that such chain link fence, rather than the length of the structure located on Parcel No. 18, is the cause of the interference with their use of the common driveway under the 1928 Agreement nor have they proven that the fence is located in any part of the easement. I further rule that the aforementioned findings fail to justify an award of damages to the Plaintiffs.

In so finding, I decline to rule, as the Defendants so allege in their counterclaim, that the Plaintiffs' easement rights under the 1928 Agreement have been abandoned or terminated. While it is true that ones' easement rights are considered to be extinguished where they are incapable of being exercised for the purposes for which they are created, Comeau v. Manzelli, 344 Mass. 375 , 381 (1962), testimony of the Defendants reveals that, between 1977 and 1980, the Plaintiffs' immediate predecessors in title utilized the common driveway on occasion for purposes of gaining vehicular access to the rear yard of Parcel No. 18. Accordingly, the Plaintiffs' rights in the easement are still capable of being exercised, although perhaps with some difficulty, for their intended purposes. Moreover, such conclusion is consistent with the well-settled rule that mere nonuse alone does not conclusively impair or defeat an easement created by deed. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421 (1979) and cases cited.

Judgment accordingly.