MISC 129189

August 18, 1989

Suffolk, ss.



This is a case in which the Plaintiff, Robert Boncore, seeks a determination that a right appurtenant to certain land of the Defendants, Paul and Eileen Howard, located on Shirley Street in Winthrop, to use Nerious Street, a private way crossing Shirley Street, is limited to foot travel only, and further seeks an injunction prohibiting the Defendants [Note 1] from parking automobiles on Nerious Street.

This matter came on to be heard on March 16, 1989. After consideration of arguments of counsel, filed memoranda and pleadings, I find and rule that there are no issues of material fact in dispute and that this matter is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1976).

I find the following facts to be pertinent:

1. The Plaintiff and his wife are the owners of two parcels of land in Winthrop, being Lot Nos. 423 and 409 on Land Court Plan No. 137-M and as further described in Certificates of Title Nos. 77577 and 79697 respectively.

2. The Defendants, Paul and Eileen Howard, are the owners of Lot Nos. 579-A, 579-B and 580-A as shown on Land Court Plan No. 137-20, and as further described in Certificate of Title No. 74408. The Defendant, Marianne Howard, is the daughter of Paul and Eileen Howard.

3. All of the involved Certificates contain the following language:

There is appurtenant to the above described land the right to use said Shirley Street and Nerious Street for all ordinary and usual purposes in common with others entitled thereto. Nerious Street is a private way.

4. In or about 1968, the Plaintiff caused certain improvements to be made to the portion of Nerious Street lying easterly of Shirley Street. Shortly thereafter, Marianne Howard began parking her car on the improved area.

In consideration of the foregoing, I find and rule that the "right to park" is included as an ordinary and usual use to be made of Nerious Street. The Plaintiff cannot expand his registered rights by improvements to the street.

In hopes of averting further litigation, I add that such use must not unreasonably interfere with the use by "others entitled thereto" and suggest, without so ruling at this time, that the parking of an unreasonable number of vehicles by one property owner, household or number of tenants of one building, or parking for so long a period as to suggest storage or abandonment, may well be enjoined, should such circumstances arise in the future, as not being reasonable, "ordinary and usual purposes."

The Defendants' motion is allowed.

By the Court


[Note 1] The complaint alleges only that the Defendant, Marianne Howard, parks on this street.