KENNETH B. BECHIS and DONNA S. BECHIS vs. ARMAND M. NICHOLI, II and INGRID M. NICHOLI.

By complaint filed March 21, 1989, pursuant to G.L. c. 231A, Plaintiffs seek a determination of the parties' rights in a way in Concord, known as Spring Brook Road ("Spring Brook Road" or "the Way"), and the removal of obstructions placed on the Way by Defendants. Plaintiffs seek to enjoin Defendants from interfering with their use and enjoyment of the Way.

Plaintiffs further request compensation for damages caused by Defendants' conduct as well as court costs and attorneys' fees.

The Court took a view of the Way on July 12, 1991.

This case was tried on June 12, 1991, at which time no stenographer was present and the proceedings were not recorded. Four witnesses testified and five exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. By deed dated February 13, 1984, and recorded in the Middlesex South Registry of Deeds [Note 1] at Book 15449, Page 190, Mary W. Arnold ("Mrs. Arnold") conveyed to Plaintiffs, as tenants by the entirety, a parcel of land where Plaintiffs now reside, known as 191 Musterfield Road, at the corner of Spring Brook Road (a private way) and Musterfield Road (a public way), in Concord ("191 Musterfield" or "Plaintiffs' Parcel"). 191 Musterfield Road is approximately 69,800 square feet in area and is shown on a plan entitled "Plan of a Part of.Nashawtuc Farm Concord Massachusett . . . ." dated November 9, 1935 and recorded at Book 5982, Page 276 ("the Nashawtuc Farm Plan"). The premises were conveyed subject to and with the benefit of:

[t]he right to use said Musterfield Road and said Woodland Road [now Spring Brook Road] and other private ways shown on the plan of Nashawtuc Farm and Vicinity dated May 20, 1925 recorded with Middlesex South District Deed Plan Book 370 Plan 49 in common with the grantor and others entitled thereto for all purposes for which streets or ways may be commonly used.

2. By deed dated March 31, 1971, and recorded at Book 11974, Page 614, Frederic L. Day, Jr. and Everett H. Parker as trustees of Nashawtuc Trust conveyed to Defendants a parcel of land where they now reside, known as 209 Musterfield Road ("209 Musterfield" or "Defendants'Parcel") (together with 191 Musterfield hereinafter referred to as "the Musterfield Parcels"), shown on a plan entitled "Plan of Land in Concord, Mass" dated March 29, 1911 and recorded at Book 11974, Page 614. The property was conveyed, "together with the right in common with others to use for all purposes for which streets or ways may be commonly used, Spring Brook Road and Musterfield Road . . . ."

3. Plaintiffs' parcel is on the easterly side and Defendants' parcel on the westerly side of the Way, a forty foot wide private way, and both Parcels are to the south of Musterfield Road. (See Exhibit No. 2).

The parties do not contest the validity of each other's easement over the Way.

4. The Musterfield Parcels were originally part of a larger tract of land comprising 375 acres and owned by William Wheeler ("Mr . Wheeler") ("the Wheeler Parcel"). Mr. Wheeler laid out over the Wheeler Parcel various private roads or ways, including Woodland Road (now Spring Brook Road) and Nashawtuc Road-west (now Musterfield Road) as he subdivided portions of the Parcel and conveyed out various lots.

5. Until 1971, Spring Brook Road appears to have been an overgrown, little used paper street. After becoming owners of 209 Musterfield, Defendants began clearing the Way. They cut back vegetation and cleared debris, including dead limbs, leaves, brambles, tin cans, papers and the like.

6. At the corner of Musterfield Road and Spring Brook Road, Defendants subsequently constructed two lengths of split rail and wood post fencing, approximately three feet high, one section on the easterly side of and within Spring Brook Road and roughly paralleling 191 Musterfield Road and the other section on the westerly side of and within Spring Brook Road roughly paralleling 209 Musterfield Road. (See Exhibit Nos. 1 and 3). Behind the fencing, on the easterly side and within the Way, Defendants planted rhododendrons at about eight foot intervals. At the corner of Musterfield and Spring Brook Roads, within the Way, Defendants placed a mail box on a wooden post approximately three feet high. Defendants further constructed, within the perimeters of Spring Brook Road, a stone wall with an island barrier of rocks for a cultivated garden (roughly shown on Exhibit No. 1).

As a general rule, the title of persons who acquire land bounded by a street or way runs to the center line of the way, G.L. c. 183, §58, and carries with it the right to use the way along its entire length. Goldstein v. Beal, 317 Mass. 750 , 755 (1945); Casella v. Sneierson, 325 Mass. 85 , 89 (1949); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Brennan v. Decosta, 24 Mass. App. Ct. 968 , 968 (1987). The parties agree that they each hold a fee to the mid-line of Spring Brook Road over the area corresponding to their frontage and that each may use their portion of Spring Brook Road for any purposes they wish, so long as their actions do not interfere with the rights of the other. Lasell College v. Leonard, Land Ct. Misc. Case No. 139420 (1990).

Issues to be decided herein are whether Defendants' easement over Plaintiffs' fee on the easterly side of the Way permits them to place fencing, plantings and a mail box in that area, and whether Plaintiffs by the exercise of their easement rights over the rest of the Way can prevent Defendants from placing fencing, plantings and a stone wall in that area.

When an easement is created, every right necessary for its enjoyment is included by implication. Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934); Guillet v. Livernois, 297 Mass. 337 , 340 (1937). Such rights include making the easement passable and useable for its entire width having due regard for the rights and interests of others, and the right to remove encroachments placed on the easement by others in the course of such improvements. Guillet at 339-341; VanBuskirk v. Diamond, 316 Mass. 453 , 462 (1944). Further, an easement holder may make reasonable repairs to the easement, such as clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road if, necessary. Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981). However, in the course of making improvements, the servient estate cannot be burdened to a greater extent than was contemplated or intended at the time of the grant. Doody v. Spurr, 315 Mass. 129 , 133 (1943); Cadman v. Wills, 331 Mass. 154 , 158 (1954).

Defendants argue that their encroachment onto Plaintiffs' fee is part of an overall effort to improve the accessibility and safety of the Way. I find that the fencing, stone wall, mailbox and plantings, all within the easement on the easterly side of the Way, while certainly improving the aesthetics of the area, do not improve, but clearly interfere with, Plaintiffs' access along of the entire width of the Way. Moreover, despite the overall improved appearance of the neighborhood, they are not usual incidents of improvement of an easement. Accordingly, I find that Defendants must remove those obstructions within sixty days after the final disposition of this matter.

I further find that Plaintiffs have the right to make Spring Brook Road passable and usable over its entire width, which includes the right to remove obstructions placed on their easement by Defendants. Accordingly, Defendants shall remove and/or relocate such obstructions so as not to interfere with Plaintiffs' use of their easement along the westerly side of the Way, within sixty days of receipt of written notice that Plaintiffs wish to use such portion of the easement for any of the allowed purposes.

In the event Defendants do not so remove or relocate said obstructions, Plaintiffs may do so and may charge Defendants for same. Such notice may be by certified mail or otherwise at Plaintiffs' option.

Judgment accordingly.