MISC 122924

December 2, 1990

Suffolk, ss.



After five days of trial on March 13 and 14 and June 25, 26 and 27, 1990 and the introduction of forty-four exhibits, some with multiple parts, several chalks and the testimony of fifteen witnesses I am left with the popular TV ad line, "Where's the beef?" The defendant Association is the owner of a property on Cheriton Road, a private way, in the City of Boston, County of Suffolk on which there has been built a handsome facility for senior citizen housing. The project was financed by the United States Housing and Urban Development ("HUD") Agency with the cooperation of the City of Boston. The three abutters who are the plaintiffs in this litigation profess to approve of the Cheriton Grove Development and the use of the locus owned by American Arabic Association for such purpose. The controvery arises over policies relating to Cheriton Road, a private way, which runs from Edgemere Road to Grove Street, both public ways and on which the Cheriton Grove project is located; Cheriton Road runs roughly parallel to Washington Street in the West Roxbury section of said Boston, not far from the Dedham town line and is about 250 feet southeasterly thereof.

The plaintiff Shalhoub claims that the construction of the road has interfered with the access from his property which stretches from Washington Street to Cheriton Road and has also impeded the use of Cheriton Road. The other plaintiffs who are husband and wife and the owners of several parcels on Cheriton Road, on one of which their home is situated, protest not only the elimination of Mr. Shalhoub's driveway but the curbing constructed by the defendant Association at the site of their building in such a way as to direct most of the traffic therefrom over Cheriton Road to and from Edgemere Road rather than from the site to Grove Street. The plaintiffs have raised some question about the sidewalk constructed by the defendants in Cheriton Road and the raising of the grade thereof, but they do not seriously press these points. The defendants answer that they have offered to meet any objections of the plaintiffs which have a legal basis, but that they have been unable to learn of what they consist. The plaintiffs' quarrel with the other defendants stems from some temporary blockage of Cheriton Road by a moving truck apparently belonging to a resident of the apartment houses owned by defendants Gasner and DePaola, as trustees, as well as by a small intrusion into the line of Cheriton Road of some landscaping. Neither of these complaints was of a serious nature and little attention was direc.ted to them during this litigation.

A trial was held at the Land Court on the above-mentioned dates at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on March 14, 1990. Witnesses called by the plaintiff included Robert W. Hart, a registered land surveyor who prepared the "as built" plan for the defendant Association, Ruth F. Conroy, a former owner of the Rodman/Serdiuk property, Carol Rodman, a plaintiff, Richard Shalhoub, an attorney and the son of George Shalhoub, a plaintiff who also testified, Ron Coler, who prepared a survey of the Shalhoub property (Exhibit No. 29), Robert Stenstrom, a former resident of the Rodman house where he lived as a child, Kevin Parker, also a former neighborhood resident, William Guibault, who lived at 43 Edgemere Road from the time he was twelve years old and for a period thereafter, Alfred Howard, a transportation engineer formerly employed by the Boston Redevelopment Authority, George Nashawaty, whose father had a service station adjacent to the Shalhoub property on Washington Street, Jean Condon Techtenberg, who used to live at 12 Edgemere Road opposite the end of Cheriton Road, and Paul Condon, a member of the Boston Fire Department. The defendants called George Sabbag, a charter member and chairman of the Building Committee of the American-Arabic Benevolent Association, George Saegh, who was one of the parties donating the land to the Association and was an owner of the apartment houses abutting Cheriton Road near Grove Street, now owned by the defendant trustees Gosner and DePaola.

On all the evidence I find and rule as follows:

l. The site in dispute is shown on a plan entitled "West Roxbury Terrace - West Roxbury, Mass. - owned by J. W. Wilbur" dated January 9 and 11 by Ernest W. Branch and recorded with the Suffolk County Registry of Deeds (to which all recording references refer) at the end of Book 3509. The subdivision encompasses 350 lots in the area of Boston situated near the Dedham line. Several of the lots as shown by the Plan (Exhibit No. l) front on Washington Street but in the area where the present dispute is centered, none of the locus properties owned by the parties to the litigation are on Washington Street but rather front on Cheriton Road.

2. Cheriton Road runs between Edgemere Road and Grove Street and in the period encompassed by the years from 1940 (and doubtless earlier) to the middle 1960's it was used by parties living on Edgemere Road or in the one house on Cheriton Road to travel between what are now the two public ways and thence out to Washington Street or a later period up Edgemere Road to the so-called Georgetown. Ledge abounded in the area; the topographic plan prepared for the defendant Association shows the extent to which its property was ledge, and there were outcroppings throughout the area. There may have been quarries in the vicinity in the past, but this was long before the personal recollection of any of the witnesses. Cheriton Road for many years was wide enough, although not paved, for two cars to pass between the paper street Dunbarton Road and Edgemere Road but thereafter narrowed to the width of a single car. It was passable up until the early 1960's. The early occupants of the Rodman house used to park in the street in front of their home. There is a pole from which electricity and telephone service is furnished to this house and an existing hydrant outside the present bituminous surface, but now Ms. Rodman and her husband generally park in Dunbarton Road with the assent of the defendant Association which has paved the entrance thereto to constitute the present driveway. The Rodman house has its own septic system and did not connect to the sewer installed by the defendant Association.

3. Cheriton Road remains a private way although in 1911 the Board of Street Commissioners of the city of Boston voted (Exhibit No. 10) to approve

. . . the locations, directions, widths and grades of the private ways at West Roxbury designated as . . . Edgemere Road leading from Washington Street to the boundary line between the City of Boston and the Town of Hyde Park. . . Cheriton Road leading from Grove Street to Edgemere Road; Dunbarton road leading from Cheriton Road southeasterly; and Ellerton Road leading from Cheriton Road southerly as shown on a plan and profile of the same made by Ernest W. Branch, Civil Engineer, 783 Tremont Street, Boston, and dated February 16, 1911, and on file in the office of the Street Laying out department. Approved April 18, 1911, John F. Fitzgerald, Mayor.

The legal effect of this vote is unclear, but the streets in question apparently all appear on the subdivision plan which is Exhibit No. 1 and some of them remain private ways.

4. The plaintiff Shalhoub owns multiple parcels in the area conveyed to him by the following deeds: a deed from Shakre Akel dated April 14, 1950 and recorded with Suffolk Deeds, Book 6597, Page 300; a deed from Shakre Akel to Mr. Shalhoub dated May 1, 1950 and recorded with Suffolk Deeds; Book 6603, Page 352 granting rights in a ten foot passageway; a deed from the City of Boston dated December 23, 1953 and recorded in Book 6926, Page 166; a deed from Burnett Rosnaw, to George Shalhoub and Margaret A. Shalhoub dated September 18, 1961 and recorded in Book 7580, Page 169; a deed from Joseph Capone dated June 1, 1964 and recorded in Book 7851, Page 152; and a deed from Scholastic Jewelers, Inc. dated August 28, 1970 and recorded in Book 8387, Page 98 (Exhibit Nos. 9, 39, 3, 31, 2 and 28). The defendants Peter Serdiuk and Carol Rodman acquired title to various parcels of land on Cheriton and Edgemere Roads by two deeds from Joseph L. Conroy et ux, one dated March 10, 1977 and duly recorded in Book 8939, Page 305 and one dated March 10, 1977 and duly recorded in Book 8939 at Page 335 (Exhibit Nos. 5 and 4).

5. The defendant American Arabic Benevolent Association, Inc. acquired title to the principal portion of its premises through a charitable donation from Theodore P. Saegh et al dated August 30, 1976 and duly recorded in Book 8961, Page 349 (Exhibit No. 13).

They also acquired a parcel of land shown as Lot 322 on the Plan by deed from Harold E. Rosen dated October 20, 1983 and recorded in Book 10622, Page 199 (Exh.ibit No. 14). The City of Boston took the property which comprised the total area of land of the defendant Association comprising 98,795 square feet together with the right to use Cheriton Road for all purposes by instrument dated May 17, 1964 and recorded in Book 10975, Page 21 (Exhibit No. 16A). The City thereafter made a confirmatory taking by instrument dated January 11, 1985 and recorded in Book 11424, Page 210 (Exhibit No. 16B) and then conveyed the property in question by deed dated January 11, 1985 and recorded in Book 11424, Page 214 to the defendant Association (Exhibit No. 16C). The confirmatory order of taking eliminated two parcels which were included by error in the original taking, Parcels 11791 and 11790, both of which are shown on Exhibit No. 12B, a topographic plan of land in Boston, Mass., West Roxbury district Suffolk county dated December 15, 1983, revised June 29, 1984 and further revised August 14, 1984 by Curley and Hansen - Surveyors. The principal purpose of the taking was to eliminate any rights in Ellerton Road, but it also disposed of any other title problems which may have lurked within the remainder of the parcels, a technique common to quieting title in areas where a significant amount of money is to be invested. The taking also included, and the City conveyed, the appurtnant right to use Cheriton Road for all purposes.

6. In at least one deed out from the developer of the subdivision and presumably common grantor, although no other deeds were introduced from Jacob W. Wilbur, a familiar name in conveyancing circles, there appeared the provision after a specific description of Lot 305 thereby conveyed, the words "together with the fee, insofar as I have the right so to convey the same, of all the streets and ways shown on said plan, in common with the owners of the other lot shown on said plan, and subject to the right of all of said lot owners to make any customary use through said streets and ways." The deed from Mr. Wilbur to one Abram Brass dated May 18, 1915 and recorded in Book 3881, Page 610 contained no mechanics as to how multiple ownership of the streets was to be implemented. I have interpreted the language as intending to follow the usual rule, i.e., that an abutting property owner has title to the centerline of the private way subject to the rights of all persons lawfully entitled thereto. Under the statute would include the rights spelled out in G.L. c. 183, §58.

7. The plaintiff George Shalhoub was a member of a family which traditionally had engaged in the cleaning of oriental rugs. The present generation, however, has turned to the law as an alternative, and he has two sons who are lawyers. As a youngster growing up he assisted his grandfather and father in the family business which was located on a nearby street in the same development. It is interesting to note that Theodore P. Saegh and his family, donors of the land, also grew up in the same two-family house in which the plaintiff Shalhoub lived. Mr. Shalhoub later moved to the Washington Street address at which his business has been carried on since the middle fifties after he obtained a variance from the City of Boston.

8. In the middle sixties the area on the southerly side of Cheriton Road became a favorite place for malefactors to torch cars which they had earlier stolen. In order to eliminate this problem George Saegh talked to Mr. Shalhoub about placing boulders in the way. Shalhoub consented to this allusion, and Shalhoub engaged a contractor to place boulders across the street. In time they were relocated so that there were two areas where the street was blocked. Ms. Rodman and Mr. Serdiuk moved the boulder or placed their own closer to Dunbarton Road in order to cut down on the same problems. Prior to this time truck traffic occasionally used Cheriton Road. A local contractor named David Vance made the most use of the road with heavy vehicles; he had construction vehicles which he brought in from Edgemere Road over to Cheriton Road to his garage near the Nashawaty filling station. Mr. Vance frequently plowed Cheriton Road and kept the surface passable. In this period of time, the 1950's, the City of Boston also occasionally plowed Cheriton Road at least as far as the Conroy house. Mr. Conroy was a policeman, and he always had to be able to get out of his house to go on duty as scheduled. He and his wife occasionally shoveled the snow, but most snow plowing was done by the City or Vance. The deliveries of large materials for Shalhoub came in by truck, and he also used the Cheriton Road route. After the boulders were placed across the road, however, it made automotive traffic difficult, and it became much less frequent although it was possible with care to edge by from the middle 1960's on. Traffic from Edgemere Road other than that to what is now the Rodman/Serdiuk home and from the Grove Street end to the then Saegh apartment houses (now owned by the Roland-George Realty Trust) which were built in the 1960's was very limited if it existed at all. The area became overgrown, there were trees within the layout of Cheriton Road and indeed one of the trees by the Association's building is a remnant of that time.

9. The American Arabic Benevolent Association began a search for a site on which to build senior citizen housing, and Mr. Sabbag, a witness in the case, a former captain in the United States Navy and an experienced hospital administrator, headed the Building Committee. With a gift from the Saeghs and others of the site it was decided that the property in question was an appropriate location for the home. The view which the Court took revealed the building and the grounds to be very attractive, and unquestionably a decided asset to the neighborhood. The project was financed by the federal government through HUD, in which endeavor the City of Boston cooperated through the Boston Redevelopment Authority and in the grant of a variance by the Board of Appeal (Exhibit No. 11). Public hearings were held in the neighborhood as well as at the office of the BRA, and the plaintiffs attended some of such hearings. The controversial aspect of the proposal was the attempt to have traffic between senior citizen housing and the public ways enter and exit from Edgemere Road rather than from Grove Street or without limitation.

A traffic engineer for the BRA discounted the safety problems at the intersection of Cheriton Road and Grove Street, but the project as approved both by the federal government and by the Boston authorities emphasized the access to Edgemere Road. The curbing within the street layout to discourage traffic was a conscious decision by the developers and the governmental authorities. It is still possible, however, to traverse Cheriton Road from Edgemere Road to Grove Street and the reverse. The only real obstacle is the curbing which the Association has installed around the edge of the paved road as constructed by it. The householder on Cheriton Road also has put in speed bumps as a trafic control for the consent of the Association, and no one has objected to their maintenance. The speed bumps installed by the plaintiffs are somewhat lower and wider than the curbing which encompasses the sidelines of the paved portion of Cheriton Road. The tree which is within the landscaped area adjacent to the curbing was an existing growth and was not planted by the defendant Association, but admittedly the lawn in which it sits was added as was the sign denoting the facility which is also within the layout of the road.

10. The driveway which formerly led to the Shalhoub premises never had a paved surface. The defendant never surfaced the driveway leading to the rear of his Washington Street premises, but when he obtained small stones or gravel to form a basis on which to lay the oriental rugs out to dry, he either deliberately or through natural forces ended with some gravel on his entrance from Cheriton Road. During construction the defendant Association's representatives dumped materials on the plaintiff Shalhoub's land; this was removed on demand, but there was no evidence that the grade was changed as the plaintiffs claimed. At any rate the area became overgrown with brush, small trees and grass. At the time of the view there was no evidence on the ground as to the location of the driveway. There were indications that the brush in a certain area had been recently cleared, but whether in fact it was the location that the plaintiff used is unclear. There were sufficient stalks and other growth remaining, however, so that it was difficult for the Court to walk from Cheriton Road to the Shalhoub property, and in the process one of the tall stalks pierced the judicial leg. The plaintiff used this route very infrequently since 1977, and this lack of use is due to the status of his business rather than to the activities of the defendants in the area. The plaintiff has access by two driveways from Washington Street, and that is the logical way to enter the rear of his premises unless for some unusual reason large trucks are involved.

It cannot be doubted that the construction of the Cheriton Grove senior citizen housing constitutes a decided improvement in the neighborhood. It is a very attractive and well-maintained property, nicely landscaped and serving vital needs of the community. The facility, of course, cannot impose upon the abutters, an unfair share of the burden of its construction, nor prevent them from exercising their rights. It is not clear, however, from this litigation what rights the plaintiffs wish to vindicate and what action they desire from the Court.

The recorded instruments together with the subdivision plan which is to be read with the deeds make it clear that there is appurtenant to the lots shown on the subdivision plan the right to use Cheriton Road for all purposes unless such right has been lost by express grant, release, estoppel, abandonment or by the acquisition by others of the fee free of the right by others to use the road by prescription or adverse possession. See G.L. c. 187, §5, Nantucket Conservation Foundation. Inc. v. Russell Management. Inc., 380 Mass. 212 (1980); Launsby et al v. DeLorenzo et al, Land Court Miscellaneous Case No. 129141 (1990). The defendants claim that the plaintiffs have lost their rights, at least to traverse the entire length of Cheriton Road from one end to the other, by nonuser and abandonment. They point to the maintenance of boulders within the way which were intended to block the illegal activities carried on by others in the area. While the boulders did not completely obstruct the way, they did make passage more difficult and indeed it was reduced to a trickle. During the years since 1977 until the completion of the Cheriton Grove project the traffic on one side of the boulders came in from Grove Street and on the other from Edgemere Road, and there was very little, if any, through traffic. The boulders, however, were not such a permanent blockage as to keep those entitled from traversing the way if they had elected to remove the boulders. The abutters agreed to the imposition of the controls over use of the road but so far as appears, they were not asked to surrender their rights therein. Accordingly I find and rule that there remains appurtenant to the lots shown on the plan, at least those owned by parties to this litigation, an appurtenant right to use Cheriton Road. This does not mean, however, that there is any obligation on the Association to construct Cheriton Road to its full width or to remove from its boundaries as they appear on the plan, the landscaping which has been placed therein. Cheriton Road has never been built to its full width and has consisted principally of a one lane dirt road. The paved portion is basically the same area which was used by those traveling over the private way in the years prior to 1977 albeit somewhat wider. Any trees that remain therein, including the tree just beside the building of the Association, are part of the natural growth.

The party who has the right to use the way has the right to improve it and to change the grade thereof if necessary so long as its actions are not unreasonable and have due regard to the rights of others. Guillet v. Livernois, 297 Mass. 337 (1937). The case last cited specifically holds that the owner of an estate has the right to construct a sidewalk within the limits of the way as the defendant Association has done. The actions therefore of the Association in grading, paving, cutting down trees and installing the sidewalk cannot be complained about and were within its rights.

The parties for many years have endured the placement of boulders within the way, and while I have found that this did not constitute an abandonment of the rights therein, there certainly is a strong argument that they are now estopped to complain about the curbing which the Association has placed around the edge of the paved way and at which one point constitutes an edging for the lawn. Two of the plaintiffs have erected speed bumps in the way which vary little from the curbing in question. As any driver familiar with this practice is aware, speed bumps require the careful motorist to proceed with caution; the same result would be reached from the presence of the curbing although it is slightly higher and less rounded. I therefore find and rule that the portion of the curbing which intrudes across the way should be lowered and widened to resemble the speed bumps and that as so changed may continue to be maintained by the Association. The plaintiffs Rodman and Serdiuk, parents of small children, would prefer that traffic go from the senior citizen housing to Grove Street to narrow any risk to the family. However, the owners of the abutting lots are free to make their own decision in this with overall control in the municipal authorities who in the last analysis preferred the present portion.

The one remaining issue is the plaintiff Shalhoub's driveway. The right to use Cheriton Road is appurtenant only to the land owned by Shalhoub and shown on the Plan. These are the lots which front on Cheriton Road and which have a depth of one hundred feet. The driveway has been used by Mr. Shalhoub in the past for access to his adjoining land which is not within the subdivision and to which such a right is not appurtenant. In using the way to pass to and from his commercial operation the plaintiff Shalhoub has overloaded the easement. Murphy v. Mart Realty of Brockton. Inc., 348 Mass. 675 , 679 (1965). This is a different issue from the one raised by the defendants at the trial as to whether the variance obtained by the plaintiff covers his entire holdings or only the lots fronting on Washington Street. I do not reach that issue because it is not properly before this Court. If the defendants seriously believe that the variance is being violated, then their proper remedy is to complain to the Inspectional Services Department of the City of Boston. This issue cannot be litigated in the present proceedings.

The defendant Association's land is all within the subdivision, and the right to use Cheriton Road is an appurtenant right. The apartment use does not overload the easement.

Inasmuch as the plaintiff has no right to use Cheriton Road for access to his nonsubdivision lots, I will not order the defendants to replace the driveway which formerly existed from Cheriton Road. If in the future the plaintiff wishes access for residential properties to be situated on the subdivision lots, then he is free to enter Cheriton Road from his adjoining subdivision land.

On all the evidence therefore I find and rule that the owners of the lots abutting Cheriton Road have the right to use Cheriton Road from Edgemere Road to Grove Street for all purposes for which streets or ways commonly are used in said Boston, that such rights have not been lost by abandonment or by the exercise of the acquisition by prescription or adverse possession of such rights.

I further find and rule that the abutters have the right to improve the road by servicing it, by grading it, by putting in sidewalks and other utilities and by removing trees, shrub and brush that had grown within the limits of the way. I further find and rule hat no party has a duty to construct the road to its full width as shown on the plan, but neither does any party have a right to place impediments to passage in the way. Accordingly the defendant is to redesign the curbing so that it constitutes a speed bump at the paved portion of Cheriton Road. If the present sign identifying the Cheriton Grove senior citizen housing is situated within the limits of the way, it should be moved slightly onto the defendant's land if the plaintiffs so request. The present tree was within the way before the construction began, and it may remain. The landscaping also reflects the nature of Cheriton Road over the years, at least since World War II and doubtless earlier. It may remain, at least until further order of this Court.

Judgment accordingly.


[Note 1] Greater Boston Community Development, Inc. was dismissed as a party during the trial.