MISC 11-449590

April 17, 2012


Long, J.



This is a dispute between neighbors over a driveway easement which passes over plaintiffs Edward Sullivan and Kathleen Folan’s property in South Boston and leads to a garage on defendant 158 Neponset Condominium Trust’s land. There are many other issues between the parties, but they are beyond this court’s jurisdiction. The issues within its jurisdiction are set forth and ruled upon below.


The parties to this case each represented themselves pro se. A trial was held before me, jury-waived. These are the facts as I find them after trial.

Plaintiffs Edward Sullivan and Kathleen Folan live at 160 Neponset Avenue in South Boston. Defendant 158 Neponset Condominium Trust (a three unit condominium) owns and occupies the abutting land at 158 Neponset Avenue. Defendants Patrick Slattery, Dennis Romaine and Daniel Nash are the condominium owners and current trustees. Defendant Eric Romaine is Dennis Romaine’s son and a frequent visitor to the condominium along with his two young children.

At issue is a driveway from Neponset Avenue that runs across the plaintiffs’ land to a two-vehicle garage at the rear of the condominium property. It arose as follows. 158 and 160 Neponset Avenue were once in the common ownership of Alice Evans. By deed dated May 19, 1976, Ms. Evans conveyed 160 while reserving an easement granting passageway (via the driveway) across 160 to 158’s garage. The easement states:

Reserving to the Grantor the right to use the portion of the asphalt drive of lot 1 [160 Neponset Avenue], as aforesaid, leading from Neponset Avenue to the rear of 158 Neponset Avenue, as shown on “Plan of Land, Boston, Mass., April 1976, L.W. DeCelle, R.L.S., Property Owner: Alice R. Evans”, to be recorded herewith, so long as the 2-car block garage in the rear of 158 Neponset Avenue remains standing, provided the Grantor and her successors in title shall covenant and agree not to park car(s) in the said driveway, and to be fully responsible for the maintenance and repair in good condition of said driveway.

The deed and plan were properly recorded in the Suffolk County Registry of Deeds. A copy of the plan, showing the location of the easement, is attached hereto as Exhibit 1.

160 Neponset Avenue has been conveyed several times, most recently to Mr. Sullivan and Ms. Folan by deed dated July 29, 1997. 158 Neponset Avenue was converted into three condominium units on October 21, 2002. Patrick Slattery owns and lives with his fiancée in the first-floor unit. Dennis Romaine owns and lives in the second-floor unit with his son, Jarrett Romaine, and rents out a room to a tenant, Mark Barry. Daniel Nash owns and rents out the third-floor unit to students. The two-car garage referenced in the easement is still standing and used.

Mr. Sullivan contends that residents and visitors to the condominium building including, but not limited to, Eric Romaine, frequently park their cars on the driveway. According to Mr. Sullivan, they often “idle” there, creating fumes that come in his windows. He claims that the defendants sometimes wash their cars in the driveway. He argues that the defendants have failed properly to maintain the driveway. And, finally, he testified that the defendants have not kept the driveway shoveled after snowfalls. In claims unrelated to the driveway, he alleges that the defendants and their visitors taunt his dog and harass and curse his family members.

The defendants, for their part, testified that they only park on their property. They may wash their cars occasionally, but state that they do so only on their property. They admit they do not always shovel the easement, but contend that they have no obligation to do so. They say, and I agree, that the easement portion of the plaintiffs’ driveway does not need maintenance or repair at the present time, having (at most) only minor cracks similar to (or less than) the cracks Mr. Sullivan has in his driveway on the other side of his house. They deny that they excessively idle their cars. With respect to the non-driveway claims, they deny that they have taunted, harassed or cursed the plaintiffs or their pets, and state that the plaintiffs have done their own share of harassment.


I begin by stating what I can and cannot address in the context of this case. Broadly speaking, with exceptions not relevant here, the Land Court only has jurisdiction to hear and determine land-related issues. See G.L. c. 185, § 1. In this case, those issues would be those that relate to the parties’ respective rights and obligations in the easement. I have no jurisdiction over the nuisance, tort or criminal claims the plaintiffs assert. Those must be brought in another court with appropriate jurisdiction. Finally, I have no jurisdiction over who may park, or where, on Neponset Street. It is a public way, subject to the City of Boston’s regulations. Neither the plaintiffs nor the defendants have any special right to any portion of that street or the parking along it, outside of their rights as members of the public. If the plaintiffs believe that the defendants are “hogging” too much parking space in front of the plaintiffs’ house, their remedy is with the City of Boston, not this court.

The “easement” questions are determined by the language of the easement itself which is clear and unambiguous. [Note 1] Two of those questions can immediately be addressed.

First, the easement still exists. The two car garage still stands and is actively used by the defendants. Thus, the plaintiffs’ request that I allow them to build a fence along the parties’ property line, blocking the easement, is DENIED.

Second, the “driveway” referenced in the easement (or, more precisely, the part whose rights and obligations are the subject of the easement) is the portion of the driveway on the plaintiffs’ property. [Note 2] This is clear from the language and context of the easement. As that language states, the easement is over “the portion of the asphalt drive of lot 1 [160 Neponset Avenue], as aforesaid, leading from Neponset Avenue to the rear of 158 Neponset Avenue.” (Easement, emphasis added). The easement’s subsequent references to “said driveway” are clearly to that portion. Id. This is corroborated by the rest of the easement’s language. Because the plaintiffs have no easement rights over any of the defendants’ land, the plaintiffs have no interest in how that portion of the driveway is used, repaired or maintained. The defendants own that portion outright, and can do with it whatever the law allows. Thus, the defendants may park on the portion of the driveway that is on their land. They may not, however, park on any part of it that is on the plaintiffs’ land, ever. Such parking is explicitly prohibited by the easement. Because of this prohibition, they also may not block the entrance to the driveway from the street, ever.

I have no jurisdiction over the plaintiffs’ claims of excessive car idling, so long as that idling takes place on the defendants’ property. Any such claim would be in nuisance or, perhaps, as a violation of a state or municipal ordinance regarding idling. All such claims are for other authorities and other courts.

Unless their use makes the driveway worse (i.e. their cars leave wheel marks, ruts or compress the snow into ice, in which case they must shovel the area promptly), the defendants have no obligation to keep the easement portion of the driveway shoveled. [Note 3] As easement holders, they have the right to do so. But they have no obligation. [Note 4] As noted above, the easement is for the defendants’ benefit. It is not for the plaintiffs’ affirmative benefit, with one exception. That exception, arising from the express language of the easement, is the defendants’ obligation to keep the easement portion of the driveway in good maintenance and repair so long as the defendants assert their easement rights over it. As noted above, I find as a factual matter that the easement portion of the driveway does not need repair or maintenance at this time. The cracks as they presently exist are truly minor. The easement does not impose a cosmetically-perfect standard, nor would such a standard be reasonable. Even with the existing cracks, the driveway is currently in good condition. Cars can go up and down the driveway without any problems, and there was no evidence that the defendants have damaged it in any way.


For the foregoing reasons, I find and declare that the defendants continue to have the right to use the easement and the plaintiffs have no right to construct a fence across it. The defendants may park on the portion of the driveway on their land. They may not park on or block any portion of the driveway on the plaintiffs’ land. The defendants have no obligation to shovel the easement unless they are using it and that use causes wheel tracks, ruts or ice. They have an overall obligation to repair and maintain the driveway in the easement area, but there is no need for such repair and maintenance work at the present time. Whatever cracks or other defects presently exist are minor, and do not affect the use or overall appearance of the driveway.

The remainder of the parties’ claims are dismissed, without prejudice, since they are beyond this court’s subject matter jurisdiction.

Judgment shall enter accordingly.


Exhibit 1

Plan of Land


[Note 1] “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Patterson v. Paul, 448 Mass. 658 , 665 (2007) (internal quotations and citations omitted).

[Note 2] The asphalt drive continues over the defendants’ property to the “2 Car Block Garage” as shown on the plan. See Exhibit 1, attached.

[Note 3] It goes without saying that, just as they have no right to use any portion of the driveway on the plaintiffs’ property outside of the easement, the defendants have no obligation to shovel, repair or maintain any other portion of the plaintiffs’ driveway.

[Note 4] The plaintiffs want the driveway shoveled regularly for the benefit of their oil deliveries (they park their cars either on the street or in the driveway on the other side of their house; since the easement must be kept clear for the defendants’ use, the plaintiffs may not park there themselves). This is not the defendants’ responsibility. As the underlying landowners, if the plaintiffs need the driveway shoveled for purposes of fuel deliveries, they are free to shovel it themselves.