PAUL T. CHURCHILL and M. CONSTANCE CHURCHILL vs. SEAN MULLIN and MONICA MULLIN.

By complaint filed on March 8, 1990, Plaintiffs seek a declaratory judgment as to their right to use a road known as Manomet Point Road ("Manomet Point Road") as shown on a plan entitled "Plan of Lots on Manomet Point in the Town of Plymouth, Mass. owned by Wm. B. & Thos. Arnold" recorded in the Plymouth County Registry of Deeds, [Note 1] at Plan Book 3, Page 314 ("the Arnold Plan") (Exhibit No. lA), for access to their property and that the Court enjoin Defendants from preventing Plaintiffs' use of Manomet Point Road by motor vehicle or by foot for access to Plaintiff, Paul Churchill's property. Plaintiffs also seek a declaratory judgment as to their rights in certain property shown as Lot 23 on the Arnold Plan, [Note 2] and that the Court enjoin Defendants from further use of or encroachment onto Lot 23 and that the Court order Defendants to restore Plaintiffs' property to its condition prior to the alleged encroachment. Further, Plaintiffs seek to quiet title of Lot 23 in the name of Paul Churchill. [Note 3]

On March 28, 1990, pursuant to G.L. C. 184, §15, the Court allowed a Motion For Approval of Lis Pendens on Manomet Point Road, and a Lis Pendens was issued on that date.

On April 20, 1990, the Court allowed a Motion for Withdrawal of Defendants' counsel, Paul S. Neustadt, Esq., subsequent thereto Defendants appeared pro se.

On April 20, 1990, the Court also awarded Plaintiffs $250.00 in attorney's fees in relation to a complaint for contempt arising from Defendants' failure to comply with the preliminary injunction issued on March 15, 1990.

This case was tried on October 4, 1990 at which time the proceedings were transcribed by a court-appointed reporter. Two witnesses testified and six exhibits were introduced into evidence. All of the exhibits are incorporated herein for the purpose of an appeal. After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Plaintiff, Paul T. Churchill is the owner of certain parcels of land on Manomet Point, in Plymouth County, which are shown as Lots 22, 23, 26, 27, and 28 on the Arnold Plan. Paul Churchill derives title to Lots 22 and 23 from a deed dated October 2, 1985, from Stuart Arnold and Florence Arnold, recorded at Book 6579, Page 109 at the Registry (Exhibit No. lB). He derives title to Lots 26, 27 and 28 from a deed dated May 20, 1982, from Sumner Sweetser and Page Sweetser, recorded at Book 5150, Page 398 (Exhibit No. 10).

2. Defendant, Monica Mullin is the owner of land on Manomet Point, shown as Lots 24 and 25. She derives title from Plaintiff, M. Constance Churchill by deed dated May 14, 1986, recorded at Book 6771, Page 294 (Exhibit No. lC).

3. Plaintiff, M. Constance Churchill derived title to Lots 24 and 25 from Sylvia Kidwell by deed dated February 10, 1966, recorded at Book 3279, Page 21 (Exhibit No. lC).

4. By deed dated May 14, 1986, recorded at Book 6771, Page 293, Plaintiff, M. Constance Churchill conveyed an easement ("the Easement") to Plaintiff Paul T. Churchill, as follows:

a right of way over the existing way commonly known as "Manomet Point Road", or "Manomet Point Road Extension" in its current location over and/or adjacent to the easterly boundary lines of Lots 24 and 25 on (the Arnold Plan) . . . (which) shall be used for purposes of ingress and egress . . . and shall be appurtenant to land of Grantee being shown as Lots 26, 27 and 28 on (the Arnold Plan). (See Exhibit No. lC)

5. There is a ten foot travelled way ("the Travelled Way") running roughly parallel to Manomet Point Road and over Lots 24, 25, 26 and 27. The location of the Travelled Way was, at the time of the granting of the Easement, and is presently as shown on Exhibit Number 3. The present location of Manomet Point Road, as laid out on the Arnold Plan is in part adjacent to the edge of a high bluff. Since sometime prior to the Easement grant, Manomet Point Road had deteriorated, and parts had collapsed into Cape Cod Bay due to largely uncontrolled erosion. This erosion is, unfortunately, continuing. As originally laid out on the Arnold Plan, Manomet Point Road is, and at the time of the Easement was, impassable.

6. The language of the above grant when viewed with the existence of the Travelled Way, above, appears to create an ambiguity viz: Defendant contends that the language "lots 24 and 25 on (the Arnold Plan)" describes both the lots and Manomet Point Road "in its current location" and as being both the lots and road "as shown on (the Arnold Plan)." In view, however, of the fact that the road as shown on the Arnold Plan was impassible at the time of the grant, and had been so for some time, and in view of the proceedings in this Court in 1984 (See Stafford v. Churchill, Land Ct. Misc. Case No. 108369, August 24, 1984), [Note 4] which recognized in part at least the Travelled Way, I find, as further reasoned below, that the references to the Arnold Plan located the lots only and that the way referred to the 1986 grant is in fact the way which appears as the Travelled Way in Exhibit Number 3.

7. On or about February 17, 1990, Defendants and/or their agents placed barriers and fill across the Travelled Way on the northerly boundary of Lot 24 blocking Plaintiffs' access to Lots 26 and 27 across the Travelled Way (See Exhibit No. 3).

8. At sometime when M. Constance Churchill owned Lot 24, the Churchills constructed a driveway on its westerly boundary. At that time, Mr. Arnold, the then owner of Lot 23, complained that the driveway encroached on his lot and in October 1985, Paul Churchill purchased Lots 22 and 23.

9. On or about February 17, 1990, Defendants and/or their agents bulldozed a road in excess of ten feet long through the easterly portion of Lot 23 creating a driveway on Lots 23 and 24. The driveway covered the existing driveway built by Paul Churchill. From approximately February 17, 1990 until the filing of the complaint, Defendants entered onto Lot 23 while using that driveway.

10. The only recent survey presented to the Court was a plan prepared by Steven Sessoms dated May 4, 1989 and recorded at Book 32, Page 278 ("the Sessoms Plan") (Exhibit No. 3).

Defendants' Encroachment on Lot 23

As a general rule, a landowner is entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land. Ottavia v. Savarese, 338 Mass. 330 , 335-6 (1959); Goldstein v. Beal, 317 Mass. 750 , 758 (1945); McCarthy v. Lane, 301 Mass. 125 , 130 (1938); Geragosian v. Union Realty Co., 289 Mass. 104 , 108-110 (1935). The Court in Geragosian explained:

The facts that the aggrieved owner suffers little or no damage from the trespass . . . that the wrongdoer acted in good faith and would be put to disproportionate expense by removal of the trespassing structures, and that neighborly conduct as well as business judgment would require acceptance of compensation in money for the land appropriated (cite omitted), are ordinarily no reasons for denying an injunction. Id. at 109.

In the present case, Defendants have presented no credible evidence that their driveway does not encroach on Lot 23 or that the encroachment is de minimis. Based on testimony by Plaintiffs' land surveyor as well as exhibits presented, I rule that Lot 24 on the Sessoms Plan is an accurate representation land owned by Plaintiff and that the existing driveway encroaches on Paul Churchill's property.

Accordingly, I rule that Defendants must remove the offending portion of their driveway from Plaintiffs' land, within sixty days from the entry of a final judgment herein, after all appeals have been resolved, upon the written request of Plaintiffs. In the course of such removal, Defendants or their agents may enter upon Plaintiffs' property as may be reasonably necessary or convenient to accomplish that end. Further, in order to forestall additional and undue litigation, Plaintiffs must bear the expense of any damage which their property may hereafter sustain as a result of Defendants' reasonable attempt to achieve compliance with this Decision and Judgment.

Plaintiffs Right to Use Travelled Way

In Massachusetts, "the purpose and effect of a reference to a plan in a deed is a question of the intention of the parties." Thompson v. Lorden, 358 Mass. 169 , 173 (1970); Goldstein at 755, quoting Regan v. Boston Gas Light Co., 137 Mass. 37 , 43 (1884). Further, "in determining the intent (of the grantor), the entire situation at the time the deeds were given must be considered." Goldstein at 755, quoting Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (1920). Factors to be considered include the existence, use and location of the way in question on the ground. Id. at 755.

In the present case, as stated above, I rule that Plaintiff, M. Constance Churchill intended to grant an easement over the Travelled Way. She described the way as "over and/or adjacent to the easterly boundary lines of Lots 24 and 25" and while that language could be interpreted to describe Manomet Point Road, considering all the pertinent circumstances, it more appropriately describes the Travelled Way. Moreover, I find the words in the 1986 grant "over the existing way" and "in its current location" are controlling and are intended to differentiate the Travelled Way from the way shown as Manomet Point Road on the Arnold Plan.

In summary, I rule that Defendants must remove the portion of their driveway that encroaches on Lot 23 as shown on Exhibit Number 3, within sixty days from entry of a final judgment herein. I further rule that as between Plaintiff, Paul Churchill and Defendant, Monica Mullin, Paul Churchill has title to Lot 23. Finally, I rule that Plaintiffs have a right to travel by motor vehicle or by foot over the Travelled Way to access Lots 26, 27 and 28. As noted at the outset, Plaintiffs' complaint seeks a declaration as to their rights in Manomet Point Road, as shown on the Arnold Plan, and as noted herein, the proof supported their rights as on the Travelled Way. Inasmuch as such evidence was not challenged properly at trial, I shall treat such evidence as having been properly raised in accordance with Rule 15(b) of the Massachusetts Rules of Civil Procedure.

Judgment accordingly.