THE LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION v. BORDEN LIGHT MARINA INC.

The Plaintiff in this action is the organization of unit owners of the Landing at South Park Condominium (“the Landing”), known as the Landing at South Park Condominium Association (“the Landing Assoc.”). When the Landing Assoc. initiated this action in February 1999, it sought to enforce rights relative to a Visual Easement and an Erosion Control Easement appurtenant to the land on which the Landing development is situated, and to enjoin alleged violations of those rights by the servient landowner, Defendant Borden Light Marina, Inc. (“the Marina”). More specifically, the Landing Assoc. alleged that the Marina had violated the Erosion Control Easement by excavating a portion of the coastal bank to construct a retaining wall, and had violated the Visual Easement by constructing two buildings in excess of the maximum height limits for structures in the Visual Easement area. The Marina answered, denying that it had violated the Easements, and also counterclaimed for trespass, alleging that portions of the Landing’s structures and facilities encroached on Marina property. Additionally, the Marina claimed the Landing Assoc. trespassed by entering onto the Marina property to walk, mow grass, and remove plants and shrubs.

On May 23, 2000, this court (Kilborn, J.) issued a Temporary Restraining Order and Preliminary Injunction (the “2000 Preliminary Injunction”), enjoining the Marina, inter alia, from “engaging in construction within the Erosion Control Easement.” Shortly thereafter, the court (Lombardi, J.) denied the parties’ cross motions for summary judgment, but allowed the Marina’s Motion to Dismiss the Plaintiff’s nuisance and negligence claims (Counts III and IV of the Complaint). The case then lay dormant for ten years until the Plaintiff filed a Complaint for Civil Contempt on May 17, 2010, alleging that the Marina had violated the 2000 Preliminary Injunction when it excavated another 650 ± feet of coastal bank and constructed a retaining wall within the Erosion Control Easement area in 2008 and 2009. The Landing Assoc. was subsequently permitted to amend its 1999 Complaint to add allegations pertaining to the Marina’s post-injunction activities.

Following a four-day trial on the matters presented in the Complaint for Civil Contempt and in the Amended Complaint and Counterclaim, I determined that the Marina’s 2008/2009 actions in excavating the coastal bank and constructing a 630 ± foot long retaining wall within the Erosion Control Easement area was a willful and knowing violation of the 2000 Preliminary Injunction. I accordingly ordered the Marina to immediately remove all boats and related equipment, vehicles, and structures stored within the excavated Erosion Control Easement area adjacent to the 630± foot long retaining wall, and further enjoined the Defendant’s use of said area for storage of any kind until further order of the court.

Now, for the reasons set forth below, I find and rule that the Marina’s actions in excavating the sloped bank and constructing a series of retaining walls during the period between 1999 and 2009, unreasonably interfered with the Landing’s Erosion Control Easement. While I find that the Landing has waived its claims with respect to any such actions occurring prior to the 2008-2009 construction, I conclude that the Plaintiff is entitled to an injunction ordering the Marina to remove the 630± foot long retaining wall completed 2009, and to restore the sloped, vegetated embankment substantially as it existed immediately prior to the 2008-2009 excavation.

As to the Plaintiff’s claims that certain structures located on the Marina property violate the Visual Easement, I find and rule that the term “structure” as used in the Visual Easement is broad enough to include boats and related equipment. Further, whereas the evidence presented at trial sufficiently demonstrated that, subsequent to the construction of the 630± ft. wall in 2008 and 2009, the Marina stored a number of boats within the Visual Easement area which extended into the area 19 feet above MSL, I find that such storage was in violation of the Visual Easement. The Plaintiff, however, failed to prove that the heights of the Marina buildings exceeded the 19 feet above MSL limit.

With respect to the Defendant’s counterclaims for trespass, I find and rule that that the porch overhang on the Landing Building #10 extends approximately 2.3 feet into the Marina property, two of the Landing’s air conditioning pads on Building #11 extend approximately 1.4 feet into the Marina property, and that a concrete step on Building #11 extends approximately 4/10ths of a foot into the Marina property. The Marina is entitled to an injunction ordering the Landing Assoc. to remove the encroaching portions of the air conditioning pads and the encroaching portion of the porch overhang. The encroachment of the concrete step, however, is de minimus and may, therefore, continue until such time as the step requires replacement or extensive repair. As the Defendant failed to prove that it has sustained any injury as a result of the encroachments, it is entitled to only nominal damages. Finally, the Marina failed to prove its claim that the Landing Assoc. has otherwise caused unlawful entry onto the Marina property in the form of walking, mowing grass or removing plants and shrubs.

FACTS

Based upon the pleadings, the parties’ statement of agreed facts, and the trial testimony and exhibits, I find the following facts:

1. The Marina property consists of 3.1 acres of shorefront land located in an industrial zoning district on the easterly shore of Mount Hope Bay.

2. The Landing property consists of approximately 7.73 acres of land directly abutting the Marina property to the west.

3. Before 1986, the land now comprising the Marina and the Landing properties was owned by the Green River Realty Trust. On or about July 29, 1986, the Green River Realty Trust divided said land into three lots, identified as Lots 1, 2, and 3 on a plan entitled: “Division of Land in Fall River, Massachusetts belonging to Green River Realty Trust, Scale: 1” = 80’, Date: July 14, 1986, prepared by Site Work Associates, Inc., 251 Bank Street, Fall River, Massachusetts” (the “Green River Plan”).

4. On September 30, 1986, the Green River Realty Trust conveyed Lots 1 and 2 on the Green River Plan, containing a total of 7.773 acres, to the Landing at South Park Inc., by deed recorded at the Fall River Registry of Deeds at Book 1724, Page 303 (“the Landing Deed”). On the same day, at the same closing, the Green River Realty Trust conveyed Lot 3 on the Green River Plan, containing 3.5 acres, to John C. Lund and Brian R. Corey, by deed recorded in said Deeds at Book 1724, Page 301 (“the Lot 3 Deed”).

5. Both the Landing Deed and the Lot 3 Deed reference and describe two easements across Lot 3 for the benefit of the Landing property.

6. The Landing Deed describes the two easements as follows:

Appurtenant to this conveyance is the benefit of [1] a visual easement over a portion of Lot 3 … under the terms of which no structure shall be erected nineteen (19) feet above Mean Sea Level on that portion of Lot 3 directly to the west of Lot 1 and Lot 2. Excluded from the definition of structure and permitted above nineteen (19) feet Mean Sea Level shall be pilings supporting piers and floats, HVAC exhausts and/or intakes which shall be reasonably screened, trees, shrubbery, picnic tables and things of like nature and [2] an easement for construction and maintenance of a public walk way and bicycle path, for construction and maintenance of a drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier.

7. The Lot 3 Deed describes the two easements as follows:

Subject to [1] a visual easement for the benefit of Lot 1 and Lot 2 …under the terms of which no structure shall be erected above nineteen (19) feet Mean Sea Level on that portion of Lot 3 directly to the west of Lot 1 and Lot 2. Excluded from the definition of structure and permitted above nineteen (19) feet Mean Sea Level shall be pilings supporting floats and piers, hvac exhausts and/or intakes which shall be reasonably screened, trees, shrubbery, picnic tables and things of like nature and subject further to [2] a twenty (20) foot wide easement for the benefit of Lots 1 and 2 for construction and maintenance of a public walk way and bicycle path, for construction and maintenance of a drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier.

8. Also on September 30, 1986, by separate instruments, John C. Lund and Brian Corey expressly granted to the Landing at South Park, Inc. a perpetual view easement (the “Visual Easement”) and a perpetual twenty-foot wide, non-exclusive drainage, erosion, and flood protection easement (the “Erosion Control Easement”) to be located along the common property line between the Landing and the Marina Properties. The Visual Easement is recorded in said Deeds at Book 1724, Page 306. The Erosion Control Easement is recorded in the said Deeds at Book 1724, Page 327.

9. The Visual Easement reads in pertinent part:

The following perpetual right and easement, in connection with the construction of 140 condominium units on the premises directly to the west of the premises herein described, which shall run with the premises, as hereinafter described, for a view unobstructed by any structure in the area 19 feet above Mean Sea Level on the premises being bounded and described as follows:

A parcel of land in Fall River, Massachusetts, located on the westerly side of Almond Street, bounded and described as follows, running:

WESTERLY: South 89 – 53’-55” West to the Mount Hope Bay; thence running

SOUTHWESTERLY: along the Mount Hope Bay to land now or formerly of the King Phillip Boat Club; thence running

EASTERLY: by land now or formerly of King Phillip Boat Club 96.44 feet; thence running

NORTHEASTERLY: by lot 1 and lot 2 on the plan hereinafter described to the point of beginning as herein specified.

….Excluded from the definition of the term structure as used in this Visual Easement and expressly permitted to occupy the area 19 feet above Mean Sea Level on the premises are pilings, supporting piers and floats, hvac exhausts and/or intakes which are reasonably screened, trees, shrubbery and picnic tables.” [Emphasis added.]

10. The Erosion Control Easement reads in pertinent part:

The following perpetual right and easement, in connection with the construction of 140 condominium units on the premises immediately adjacent to the premises herein described, which shall run with the premises, as hereinafter described, for construction and maintenance of a public walk way and bicycle path, for construction and maintenance of drainage systems and for construction and maintenance of a sloped graded erosion and flood protection barrier, bounded and described as follows; provided, however, that this right and easement herein granted is not intended to preclude the Grantor, its successors or assigns, or others so entitled from using the premises hereby conveyed so long as such use does not interfere with the exercise of this right and easement….” [Emphasis added.]

11. The Landing was created by Master Deed, dated September 25, 1987 and recorded at Book 1181, Page 133.

12. On September 30, 1987, the Landing at South Park, Inc. and the Marina agreed to a partial release of the Erosion Control Easement. The Release pertains only to the portion of the Easement which relates to construction and maintenance of a public walkway and bicycle path. The Release, which is recorded at Book 1882, Page 2, states that “[a]ll other rights of the Grantee in said Easement are hereby reaffirmed.”

13. On July 25, 1989, John C. Lund and Brian R Corey conveyed Lot 3 to the Marina by deed recorded at Book 2130, Page 5. John C. Lund was the then President of the Marina, and John C. Lund and Brain R. Corey were the Marina’s sole two shareholders. Lot 3 was subsequently divided into Lots A and B. Lot A was conveyed to the Admiralty, Inc., which is not party to this action, and Lot B (containing 3.1 acres) was retained by the Marina.

14. Between September 1987 and August 1994, the Landing complex was constructed in phases to include 140 condominium units in 13 buildings, a clubhouse, and an outdoor swimming pool.

15. Construction on the Marina property commenced in 1989. During construction, the Marina excavated a portion of the embankment within the Erosion Control Easement area adjacent to the common property line between the Landing and the Marina, and began construction of a retaining wall in phases. First, the Marina erected a retaining wall in front of Landing Buildings #11 and #12. This wall was modified by the Landing’s developer. The Marina constructed a second retaining wall at the northerly end of the Landing property in front of Buildings #10 and #11, and also constructed a small section of retaining wall near Building #4. [Note 1]

16. On February 4, 1999, the Landing Assoc. initiated the instant Land Court action. In May 2000, after the Marina excavated approximately 275 feet of bank within the portion of the Erosion Control Easement in front of the Landing Buildings #5 and #6, the Landing Assoc. sought and obtained a Preliminary Injunction, prohibiting the Marina, inter alia, from engaging in construction within the Erosion Control Easement area.

17. In 2002, the Marina sought the Landing Association’s assent to a modification of the 2000 Preliminary Injunction and permission to build a segment of wall in front of Landing Buildings #5 and #6. The Landing Assoc. responded with a counter proposal which the Marina never accepted. Nevertheless, and without seeking leave of court, the Marina proceeded to erect the 275-foot segment of retaining wall within the excavated Erosion Control Easement area in front of the Buildings #5 and #6. [Note 2] Although the Landing Assoc. was aware of the 2000 Preliminary Injunction at that time, it took no action to enforce it, or to otherwise prevent the 2002 construction.

18. Sometime between 2007and 2008, the Marina completed construction of a 150-foot segmented block wall between Building #5 and the Landing’s swimming pool. This wall was located within the Erosion Control Easement area. Before the wall was completed, the Landing Assoc. asked the Marina to raise the height of the wall, and subsequently sent a letter to the Marina’s president, Michael Lund, thanking him for raising the height of the wall

19. Commencing in 2008, the Marina excavated the entire area of the Erosion Control Easement at the southerly end of the Marina property, in front of the Landing Buildings #3, # 4 and #5, including approximately 650 linear feet of costal bank, and began construction of an additional segment of concrete block retaining wall. The excavation and construction work was completed sometime in 2009 (“the 2009 Construction”).

20. The Marina did not seek leave of court for the 2009 Construction, and did not seek permission from the Landing Assoc. The Marina also did not obtain state or local permits prior to commencing the work.

21. All of the retaining walls constructed by the Marina following the 2000 Preliminary Injunction were located within the Erosion Control Easement area, and therefore, in violation of the 2000 Preliminary Injunction. However, the Landing Assoc. made no objection and undertook no action to stop the construction until 2009.

22. Before the 2009 Construction, the area of the Erosion Control Easement in front of the Landing Buildings #3, #4, and #5 included a sloped, vegetated embankment extending toward the shore.

23. The 2009 Construction eliminated the sloped embankment and replaced it with a vertical, 230± foot long, concrete block retaining wall. Parts of the retaining wall encroach on the Landing property.

24. A vertical retaining wall, if properly built can serve to provide erosion control and flood protection. The wall built as part of the 2009 Construction, however, is unstable and in danger of failure. As such, it does not provide either adequate erosion control or adequate flood protection for the Landing property.

25. Before the 2009 Construction, stormwater runoff from the Landing property was directed through underground pvc drain pipes into a catch basin which, in turn, connected to the Fall River storm sewer system. Parts of the Landing’s drainage system were located within the area of the Erosion Control Easement excavated as part of the 2009 Construction.

26. During the 2009 Construction, the Landing’s pvc pipes within the Erosion Control Easement area were cut, causing the stormwater to drain to Mount Hope Bay instead of into the Fall River storm sewer system. To prevent the stormwater from draining directly into the Bay, the Landing Assoc. had to undertake repairs at its own expense.

27. The area excavated as part of the 2009 Construction is also within the boundaries of the Visual Easement area.

28. The elevation of the Marina’s property in the excavated area seaward of the retaining wall is ten (10) feet above Mean Sea Level (MSL).

29. Following the 2009 Construction, the Marina began using the excavated Erosion Control Easement area on the seaward side of the retaining wall for winter storage of boats. Some of the stored boats were large sail boats with tall masts, wrapped in white plastic shrink wrap. As stored, the tops of these large sail boats extended into the area nineteen (19) feet above MSL.

30. As stored on the Marina’s property, neither the boats, nor the structures on which they rested, were permanently fixed to the ground.

31. The Marina uses a marine travel lift for moving boats on its property. The marine travel lift is a straddle hoist crane with four wheels, which is moved around the Marina property as needed. When located within the Visual Easement area, the upper portion of the 22 foot-high travel lift extends into the area above nineteen (19) feet MSL.

32. The porch overhang on the Landing Building #10 extends approximately 2.3 feet into the Marina property. Two of the air conditioning pads on Building #11 extend approximately 1.4 feet into the Marina property, and a concrete step on Building #11 extends approximately 4/10ths (.4) feet into the Marina property.

DISCUSSION

I. Violations of the Erosion Control Easement

The 2009 Construction

The first issue to be addressed is whether the Marina’s 2009 construction has improperly interfered with the Landing’s rights under the Erosion Control Easement. The owner of land burdened by an easement may generally use that land for any purpose consistent with the terms and intent of the easement, Western Mass. Elec., Co. v. Sambo’s of Mass., 8 Mass. App. Ct. 815 , 818 (1979), but not “in a way that would lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights.” Texon Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 366 (1979).

Here, the Erosion Control Easement explicitly grants the Landing the right to use a 20-foot wide strip of the Marina’s property, parallel to and extending the length of the Marina/Landing common boundary, for the “construction and maintenance of drainage systems and….a sloped graded erosion and flood protection barrier.” Prior to the 2009 Construction, the portion of the Erosion Control Easement area in front of Landing Buildings #3, #4, and #5 was a stable, sloped embankment and was, indeed, used by the Landing for drainage purposes. The 2009 Construction both disrupted the drainage system, and eliminated the sloped embankment.

The Marina defends its actions by claiming that it had the right, as the servient owner, to alter the existing conditions and construct the retaining wall because, it contends, the construction does not interfere with the Landing’s easement rights. To this end, the Marina argues that the vertical wall it constructed is equivalent to a sloped and graded erosion control and flood protection barrier, and actually provides better flood protection and erosion control than the sloped, embankment the wall replaced. The evidence at trial does not support the Marina’s contentions.

Rather, the evidence demonstrates that the 2009 Construction generally frustrated the purpose of the Easement for the “construction and maintenance of drainage systems” and increased the cost burden on the Landing for maintaining its drainage system in that area. Parts of the Landing’s stormwater drainage facilities in the Erosion Control Easement area were damaged during excavation of the bank, so that the system no longer drained into the Fall River stormwater sewer system. The Landing Assoc. had to correct this problem at its own expense. I conclude, therefore, that the 2009 Construction “unreasonably interfered” with the Landing’s right to maintain a drainage system within the Erosion Control Easement area, and “significantly lessened” the utility of said Easement.

Also, the evidence does not bear out the Marina’s contention that the retaining wall provides “equivalent or better” erosion control and flood protection than the sloped, graded bank it replaced. Both the Defendant’s expert witness and the Plaintiff’s expert witnesses agreed that a properly constructed vertical wall could provide better flood protection and erosion control than a sloped, graded embankment. However, I credit the testimony of the Plaintiff’s expert structural engineer, James Holmes, that the 2009 concrete block retaining wall was not properly constructed, and is already showing signs of instability. I also reject the Marina’s argument that because a vertical retaining wall is itself “sloped and graded,” the 2009 Construction is entirely consistent with the deeded easement rights of the Landing to construct and maintain a “sloped and graded” erosion control and flood protection barrier. As commonly understood, a “slope” is neither horizontal nor vertical, but an incline at an angle somewhere between the two. Moreover, even if the retaining wall were built at slightly less than a 90º angle from the ground, so that it is technically not “vertical,” construction of such wall is still inconsistent with construction and maintenance of a sloped and graded barrier, since the term “graded” is commonly used to describe a ground surface that has been leveled to bring it to a particular gradient. Such term would normally not be used to describe a constructed, concrete block wall. [Note 3]

I conclude that excavating nearly the entire width of the Erosion Control Easement area and constructing a concrete block retaining wall in place of an existing, natural embankment is not only inconsistent with the rights granted to the Landing under the Erosion Control Easement, but has substantially interfered with those rights. Accordingly, the Marina had no right to unilaterally engage in the 2009 Construction, even had the 2000 Preliminary Injunction not been in place.

The Marina commenced construction in the Erosion Control Easement area in front of Buildings #3, #4, and #5 in 2008 and completed the work in 2009. The Landing Assoc. filed its Contempt Complaint in May of 2010, and amended the 1999 Complaint to include its post-1999 claims concerning the 2009 Construction, in October of 2010. The Marina argues that it was unreasonable for the Landing Assoc. to wait until after the walls were completed before coming into court.

In rejecting the Marina’s assertion that the Landing Assoc.’s challenge to the 2009 Construction is barred by the doctrine of laches, I need not decide, however, whether the Landing Assoc.’s timing amounted to an unreasonable delay. This is because the Marina has not shown that it was prejudiced by any delay. See Polaroid Corp. v. Travelers Indemnity Co., 414 Mass. 747 , 759-760 (1993) (“The equitable defense of laches will bar a party from asserting a claim if the party so unreasonably delayed in bringing the claim that it caused some injury or prejudice to the defendant.”); see also Wellfleet v. Harris, 71 Mass. App. Ct. 522 , 531 (2008), quoting Moseley v. Briggs Realty Co., 320 Mass. 278 , 283 (1946) (“[l]aches is not mere delay but delay that works disadvantage to another.”).

Moreover, the Marina can hardly claim that it has been prejudiced or otherwise injured in view of the fact that the 2009 Construction was done in defiance of this court’s 2000 Preliminary Injunction. By knowingly violating the 2000 Preliminary Injunction proscription against engaging in any construction within the Erosion Control Easement, the Marina undertook the risk that the court would order the wall to be removed, and has also come to court with “unclean hands.” In these circumstances, the latches defense is unavailable. See Santagate v. Tower, 64 Mass. App. Ct. 324 , 334 (2005) quoting Fidelity Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195 , 200 (1996) (“[H]e who comes into equity must come with clean hands.”).

The Pre-2009 Construction in the Erosion Control Easement

Prior to the 2009 Construction, the Marina had constructed two other retaining walls within the Erosion Control Easement Area, in violation of the 2000 Preliminary Injunction. For the same reasons discussed above with respect to the 2009 Construction, the laches defense is not available. However, I find that the Landing Assoc. has waived its right to object to the pre-2009 construction.

“Waiver is the intentional relinquishment of a known right." Roseman v. Day, 345 Mass. 93 , 99 (1962), quoting Nashua River Paper Co. v. Lindsay, 242 Mass. 206 , 208 (1922). A party can waive its rights implicitly through "clear, decisive and unequivocal conduct" that demonstrates “an intent to relinquish voluntarily a particular right [such] that no other reasonable explanation of [the] conduct is possible." KACT, Inc. v. Rubin, 62 Mass. App. Ct. 689 , 695-96 (2004). Here, the Landing plainly acquiesced to the Marina’s completion of the very retaining wall which had initially prompted the 1999 Complaint in this action, thereby relinquishing its right to object. Indeed, the Landing admits that it believed it had negotiated an agreement with the Marina to allow the wall at that time. [Note 4]

Additionally, the Landing Assoc. was obviously aware of, and complicit in, the 2007/2008 construction of an additional retaining wall segment. Its request to the Marina that the wall be increased in height, and its subsequent letter to the Marina’s President, thanking him for doing so, evidence “clear, decisive and unequivocal conduct,” amounting to a waiver of rights to object to said construction.

II. Violations of the Visual Easement

The Landing Assoc. complains about two violations of the Visual Easement. First, as set forth in its original Complaint, the Plaintiff contends that two of the buildings constructed on the Marina property exceed the 19 ft. MSL limit for structures located within the Visual Easement area. Second, the Plaintiff claims in its Amended Complaint that, since the 2009 Construction, the Marina has been seasonally storing large boats within the Visual Easement area, in front of Buildings #3, #4, and #5, which exceed the 19 ft. MSL limit.

The Plaintiff offered no proof at trial to establish the actual height of the two marina buildings, and did not argue in its post-trial brief that the two buildings violate the Visual Easement. Therefore, I find that the Landing Assoc. has waived this particular claim and is not entitled to a judgment that either of these two building violate the Visual Easement. Whether, as claimed in the Amended Complaint, the Marina’s seasonal boat storage violates the Visual Easement depends, in part, on whether the stored boats are included in the term “structure” as used in the Visual Easement, such that they are subject to the 19 ft. MSL height limit. I find that they are.

The Landing Assoc. argues that, on the basis of the language and the clear intent of the Visual Easement, the term “structure” must be construed broadly to include the stored boats. The Marina counters that a “structure” necessarily implies permanence, and that since the boats and travel lift in question are not permanently fixed to the ground, they are not considered structures. In support of this argument, the Marina points to the definition of “structure” contained in the Title 310, Section 9.00 et seq. of the Code of Massachusetts Regulations. [Note 5] There is no need, however, to look to the outside regulations to determine the meaning of the word “structure” as used in the Visual Easement.

The meaning of a word or phrase used in an instrument creating an easement is determined “in light of all the relevant circumstances and the whole of the instrument” itself. See Myers v. Salin, 13 Mass. App. Ct. 127 , 142 (1982) and cases cited therein. See also Scott v. Board of Appeals of Wellesley, 356 Mass. 159 , 161-162 (1969) (“[A]nything ‘constructed or built’ (dictionary definition) is a structure but whether a particular thing constructed is within the meaning of the word as used in a statute, regulation or contract depends on the context.”). Here, the language and context of the Visual Easement makes clear that the term “structure” was intended to apply, in its broadest sense, to anything made up of parts that might obstruct the views from the Landing.

The stated purpose of the Visual Easement is to benefit the Landing with the right to “a view unobstructed by any structure in the area 19 feet above Mean Sea Level.” [Emphasis added.] The Visual Easement does note define “structure” but, instead, excludes from the term “structure” only six specific items, and expressly permits those six items to be within the area 19 feet above Mean Sea Level. The excluded items are limited to: (1) pilings; (2) supporting piers and floats, (3) HVAC exhausts and/or intakes which are reasonably screened, (4) trees; (5) shrubbery; and (6) picnic tables and things of like nature. It is clear from this list that the term “structure” as used in the Visual Easement was meant to include a broad variety of objects which, if extending into the area 19 feet above Mean Sea Level might interfere with the views from the Landing.

Boats, which are constructed or composed of parts, are notably absent from the list of items expressly excluded from the definition of structure in the Visual Easement. Nor are boats similar in nature to any of the excluded items. Accordingly, I find that boats are “structures” governed by the Visual Easement. If located within the boundaries of the Visual Easement area, they may not extend into the area 19 ft above Mean Sea Level.

The current elevation of the Marina’s property, in the excavated area where the Marina previously stored boats, is at ten (10) feet above Mean Sea Level (MSL). Both the trial testimony and photographic exhibits demonstrate that several of the large, shrink wrapped boats stored in that area extended into the area 19 ft above MSL. Consequently, Plaintiff is entitled to a declaration that certain of the Marina boats, as stored, violated the Visual Easement, and is also entitled to injunctive relief prohibiting such storage in the future.

III. The Marina’s Counterclaims for Trespass

The Marina has counterclaimed for trespass, alleging, among other things, that certain parts of the Landing buildings unlawfully encroach upon the Marina property. The evidence supports these allegations. The Marina relies primarily on a 1999 survey plan, prepared by Mount Hope Engineering, Inc., as accurately depicting the common boundary line between the Marina property and the Landing property, as well as the encroachments onto the Marina property. According to the 1999 survey plan, two air conditioning pads extend 1.4 feet over the common property line, and a concrete step extends approximately 4/10ths of a foot over the line. Additionally, the porch overhang on Building #10 is shown as extending 2.3 feet over the common property line. [Note 6]

Typically, injunctive relief is available to “compel removal of a structure significantly encroaching on [the plaintiff’s] land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.” Peters v. Archambault, 361 Mass. 91 , 92 (Mass. 1972). I find that the two air conditioning pads on Building #11 and the porch overhang on Building #10 significantly encroach on the Marina land and must be removed. I find that the concrete step encroachment is de minimus, however. Therefore, it may remain in place until and unless it requires replacement or extensive repair. As the Marina has failed to establish that the encroachments have caused it any injury whatsoever, it is entitled to nominal damages only. Finally, the Marina failed to establish that the Landing Assoc. has caused other trespasses on the Marina property, such as by walking, mowing or removing plants and shrubs

CONCLUSION

Judgment is to enter consistent with this Decision. However, before judgment enters, I wish to afford the Parties the opportunity to confer about the form the court’s judgment should take, so as to address appropriate matters which might affect the timing and manner in which the wall removal and bank restoration is to take place, and/or the timing of the removal of the structural encroachments from the Marina property. Therefore, I request that counsel for the parties confer and, within thirty (30) days, submit an agreed upon form of proposed judgment consistent with this Decision. In the alternative, the parties may, within the same time frame, each submit their own proposed form of judgment for the court’s consideration.