JOHN DEL TORCHIO, III and LISA B. DEL TORCHIO vs. JAMES P. MOVALI, VIRGINIA BERGMANN, ROBERT G. STEWART, FRANCIS S. WRIGHT, JR., STEPHEN REYNOLDS, DAVID B. GARDNER, MICHAEL NIMON, as they are members of the GLOUCESTER ZONING BOARD OF APPEALS and MARK A. GOSSOM and SHELLY A. GOSSOM

By virtue of the instant action, initiated pursuant to G.L. c. 40A, § 17, John and Lisa Del Torchio (plaintiffs/Del Torchios) seek judicial review of a decision of the Gloucester Zoning Board of Appeals (Board) reversing the Building Inspector’s denial of a foundation permit for Mark and Shelly Gossom (defendants/Gossoms). Plaintiffs seek, as well, a declaratory judgment pursuant to G.L. c. 231A to the effect that they have a fee interest to the midpoint of what is described as an “unnamed forty-foot wide private road.” [Note 1] Finally, plaintiffs seek injunctive relief to compel the removal of alleged encroachments on the right of way and prohibiting all encroachments or interference with their “rights in and use of the private road.”

The central issue concerns defendants’ use for parking purposes, of a portion of their property that is subject to the plaintiffs’ easement. The plaintiffs allege in their complaint that the use of the parking area [Note 2] serves to obstruct the private way. Further, they assert that the obstructions “are in derogation of the Del Torchios’ rights in the private road and interfere with the Del Torchios’s use of the private road.” [Note 3] By way of relief, they seek an injunction barring the defendants’ use of the paved portion of the easement for purposes of parking their vehicles, together with an order requiring the defendants to remove all encroachments. [Note 4]

At the outset, plaintiffs advanced the following arguments:

(a) that issuance of a foundation permit [Note 5] for defendants’ Rear Lot was legally untenable because the subdivision of plaintiffs’ property rendered the defendants’ Front Lot non-conforming as to front yard setbacks. Invoking the doctrine of “infectious invalidity” [Note 6] the plaintiffs argue that the defendants’ Rear Lot may not be developed; (b) that under the Derelict Fee Statute, G.L. c. 183, § 58, [Note 7] plaintiffs possess a fee interest to the midpoint of the way to the extent that it abuts their property and that they possess an easement along the entire length of the way, and (c) that the Gossoms are improperly obstructing plaintiffs’ use of the way

Arguments (a) and (b) were resolved by this court’s Summary Judgment Order which is incorporated herein by reference. [Note 8] The remaining issues were the subject of a two-day trial [Note 9] at which a stenographer was sworn to take the testimony of Lisa Del Torchio, Greg Cademartori, Kim Hazarvartian, Mark Gossom, and Shelly Gossom. Fifty-eight exhibits were admitted into evidence. These exhibits are incorporated by reference into this decision for purposes of appeal.

On all the credible testimony, [Note 10] exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

(1) The plaintiffs, John Del Torchio, III and Lisa B. Del Torchio, reside at 3 Ferry Street, Gloucester, Massachusetts. [Note 11]

(2) The defendants, Mark Gossom and Shelly Gossom, reside at 11 Ferry Street in Gloucester. [Note 12]

(3) Plaintiffs possess an easement over a right of way located on the defendants’ property. See the WAY as designated on Exhibits 25 and 26.

(4) Title to the plaintiffs’ property is derived from a deed dated March 27, 1989, as recorded with the Southern Essex District Registry of Deeds (Registry) at Book 9938, Page 270. [Note 13] Plaintiffs’ property is described therein as follows:

A certain parcel of land with the building(s) thereon known as 3 Ferry Street, Gloucester, Essex County, Massachusetts as shown as Lot A-1 on “Subdivision Plan of Land in Gloucester, Massachusetts, Prepared for Bruce A. & Ruth A. Whilton . . ., recorded as Plan 33 in Plan Book 247, to which plan reference is hereby made for a more particular description.

Said Lot A-1 contains 44,336 ± square feet, according to said plan. [Note 14]

Together with the right to use, in common with others entitled thereto, the said private road 40 feet wide, of which only a part has been constructed, along the westerly boundary of the granted premises, for all purposes for which public ways are commonly used in the City of Gloucester, which right of way is shown on said Plan referenced above.

(emphasis supplied)

Being a portion of the premises conveyed to the Grantors by deeds recorded with the Essex South Registry of Deeds in Book 7504, Page 564 and 565. [Note 15]

(5) Defendants are owners of the fee in the forty-foot way that abuts plaintiffs’ property. Title to the defendants’ property is derived from a deed dated June 3, 1999, which was recorded with the Registry at Book 15732, Page 366. [Note 16]

Defendants’ property is described therein as follows:

. . . [A] certain parcel of land situated on the Northerly side of Ferry Lane, now known as Ferry Street in Gloucester, Essex County, Massachusetts, and being shown as Lot 120 (excluding 1440 square feet thereof as hereinafter mentioned) on a plan entitled “Plan of Gloucester, Mass. property of Riverview Landing, Inc. . . . which plan is recorded at the Essex South Registry of Deeds, Plan Book 98, Plan 78. Said parcel is more precisely bounded and described as follows:

SOUTHERLY by Ferry Street, 143.81 feet, more or less, according to said plan;

EASTERLY by the easterly sidelines of a right of way as shown on said plan 190.90 feet at land now or formerly of Elizabeth B. Courant and 93.00 feet by a rectangular parcel of land containing approximately 1440 square feet;

NORTHERLY in part by lot 115 as shown on said plan, 101.68 feet; and in part by land marked “Riverview Landing, Inc. lots 73-99” 40.69 feet; and

WESTERLY by lots 116, 118 and 119 as shown on said plan, 389.69 feet.

LOCUS: Lot 120, Ferry Street, Gloucester, MA.

Said parcel includes the fee in the RIGHT OF WAY on said plan. The rectangular area of approximately 1,440 square feet situated easterly of the RIGHT OF WAY and which has 16.12 feet of frontage on Ferry Street is not contained within the above land description and is expressly excluded from this conveyance. [Note 17]

(6) While the easement as granted references a forty-foot wide road, [Note 18] the actual way on the ground consists of a gravel drive or roadbed, 11.7 feet wide at the intersection with Ferry Street. [Note 19] The gravel drive runs along the easterly edge of the easement and provides access to the rear of defendants’ lots and secondary access to plaintiffs’ lots. [Note 20] The width of the gravel drive has not changed significantly since the time the Gossoms first acquired their property. [Note 21]

(7) The gravel drive exits onto Ferry Street at an unsignalized T-intersection. [Note 22] A six-foot high stockade fence borders the eastern side of the gravel drive as it approaches Ferry Street, with a telephone pole situated between the end of the fence and Ferry Street. [Note 23] Ferry Street curves significantly to the north just west of defendants’ property. [Note 24]

(8) Defendants’ home is approximately fifty feet from their easterly property line, and 35 feet from the near edge of the gravel drive. [Note 25] The near edge of the easement is approximately 10 feet from defendants’ residence. [Note 26]

(9) Both parties sought and gained approval to subdivide their properties into front and rear lots, with access to both rear lots provided by the easement. [Note 27]

(10) Plaintiffs use the gravel drive on a daily basis to access their properties, although they have a second driveway that also provides access to Ferry Street. [Note 28]

(11) Within 12-18 months of building their home in 1999, defendants paved a portion of the Easement that fronts along Ferry Street on which to park their vehicles. [Note 29] This area abuts the western edge of the gravel drive. [Note 30] Up to three vehicles can be parked on the paved area, [Note 31] and usually two or three vehicles are parked there. [Note 32] There is a second paved area, also used for parking, on the lower portion of defendants’ property. [Note 33]

(12) To the best of the parties’ knowledge, there has never been an accident between a vehicle exiting the gravel way and a vehicle traveling on Ferry Street. [Note 34]

(13) Egress from the gravel drive has been blocked only once in the thirteen years defendants have owned the property. During that thirteen year period, the plaintiffs have been able to turn safely onto Ferry Street from the gravel drive. [Note 35]

(14) Neither Mark nor Shelly Gossom has ever been asked to remove a vehicle blocking the gravel drive by anyone including the plaintiffs or the police. [Note 36] The Gossoms have never heard anyone driving on the gravel path beeping their horn to request that an obstacle be removed. [Note 37]

(15) Mark Gossom has never observed a vehicle having difficulty entering or exiting the gravel drive. [Note 38] For her part, Lisa Del Torchio has never received a complaint regarding a lack of access over the gravel drive. [Note 39]

(16) Emergency vehicles, including fire trucks, utility trucks and police cars have, passed along the gravel drive without incident. [Note 40]

(17) Kim Eric Hazarvartian (Hazarvartian), a civil engineer with a specialty in traffic engineering, provided uncontraverted testimony on behalf of the plaintiffs regarding appropriate sight distances for vehicles exiting the gravel drive onto Ferry Street. [Note 41] The following exchange occurred on Direct Examination:

Q: In designing intersections or assessing the safety of an intersection, what are the principal things that you look at?

A: Well the first thing that I look at is, is there an adequate sight distance.

Q: …[W]hen you say “sight distances” what do you mean by sight distance?...

A: …[T]he sight distance that I was tasked to examine is, the sight distance along Ferry Street to and from the right. In other words, if a vehicle is pulling up to the end of the right of way and wants to turn onto Ferry Street to make a left turn, it needs to be able to see traffic approaching from the right on ferry Street.

Q: And you made those observations?

A: Yes; I did. [Note 42]

(18) It was his opinion, based upon the guidelines set forth in the so-called “Green Book,” [Note 43] a publication of the American Association of State Highway and Transportation Officials (AASHTO), that a recommended minimum sight distance for an intersection such as that of the gravel drive and Ferry Street would be 106 feet. [Note 44]

(19) Mr. Hazarvartian visited the site in order to investigate the sight lines available to a vehicle turning right from the gravel drive onto Ferry Street. [Note 45] He testified regarding the sight lines available to a vehicle exiting the gravel drive, as follows:

We measured the sight lines that were available. With the vehicle in place three, the sight line is 35 feet. With a vehicle in space two, the sight line is 70 feet, and with a vehicle in space one, the sight line is 115 feet. [Note 46]

(20) Hazarvartian characterized the traffic on Ferry Street as “light,” [Note 47] He performed no traffic counts. He did not investigate the speed of vehicles traveling either east or west along Ferry Street. He acknowledged that there was no “speed study with a sampling of vehicles.” [Note 48]

(21) Hazarvartian described the upper paved parking area which is the focus of this action, in the following terms:

Q: …[Y]ou’ve got about 16 feet of pavement available for parking in those three spaces, and 16 feet of depth as you go in from Ferry Street.

(22) He opined that the limited sight line available to an exiting driver when a vehicle is parked in Space Three creates an unsafe situation. [Note 49] He also testified that the sight line available when a vehicle is parked in Space Two is not ideal, although the situation is not as critical as that created by a vehicle in Space Three. [Note 50] On Direct Examination, he testified as follows with regard to Space Two:

Well, parking space number two, even if you have [the Gossoms’] pickup truck taking up that space, we’re talking 70 feet of sight distance available, not 35 [as is the case with Space Three]. And if you dig deeper into the “Green Book” the actual stopping or braking part of the sigh distance is 30-something feet…

All these equations are approximate, they’re not exact. The perception and reaction part is 70-odd feet, comprising the 106 feet. So rough numbers – one third of that 106 feet is for braking, and the other two-thirds is for perceiving and reacting.

The middle space, with the truck there, you have the braking distance and you have some reaction time, as well. So it’s not as critical a situation in the first place. Also, the vehicle is farther away and you start to have separation between the vehicle wanting to exit the right of and the vehicle in that space, so you can see around it better.

(23) Hazarvartian was satisfied that the sight line for an exiting driver when a vehicle is parked in Space One presented no reason for concern. [Note 51]

(24) It was Mr. Hazarvartian’s view that if a vehicle parked in Space Two were pulled further forward onto defendants’ property, or if that “parking space were extended that issue with parking space number two would be eliminated.” His response to the follow-up question was as follows:

Q: Do you have any opinion as to how far away that could be extended?

A: Not as I sit, I truthfully don’t.

Q: Are were talking ten feet?

A: No; not more than ten feet. [Note 52]

(25) The sight lines to the left (east) as a vehicle exits the gravel drive onto Ferry Street are obstructed due to the location of the fence and utility pole. [Note 53] This safety issue may be somewhat ameliorated if exiting vehicles are able to veer slightly to the right upon approaching Ferry Street, thereby enabling a driver to see around the obstructions. [Note 54] However, an exiting driver wishing to veer to the right in this fashion may well be hindered in the event there is a vehicle parked in Space Three. [Note 55]

(26) A vehicle parked in Space Three creates an unsafe pinch point in the gravel drive at the T-intersection with Ferry Street. [Note 56]

In their Post Trial Brief ,the plaintiffs argue that defendants’ use of their servient property in order to park up to three vehicles on the upper paved parking area, improperly interferes with plaintiffs’ use of their dominant estate. Plaintiffs therefore request the following relief:

This Court should issue a permanent injunction prohibiting the Gossoms from parking vehicles in the entire width of the private road so as to not interfere with the Del Torchios[’] easement rights.

In the alternative, this Court should issue a permanent injunction prohibiting the Gossoms from parking in the private road in what was referred to at trial as parking space number 3 and to require that vehicles parked in spaces referred to at trial as spaces number 1 and 2 be moved forward seven feet, so as to not interfere with the Del Torchios[’] easement rights. (emphasis added)

Given the state of the trial record, this court is satisfied that there are no current or ongoing obstructions or interference by the Gossoms in the private road. [Note 57] Consequently, the court is prepared to consider the plaintiffs’ request for relief, in the alternative.

As observed, the plaintiffs request that the defendants be barred from parking in Space Three and be required to move the vehicles parked in Spaces One and Two forward seven feet “so as not to interfere with the Del Torchios’ easement rights.” [Note 58]

“There is no doubt that the court has the power to restrain the erection or require the removal of buildings or structures which permanently encroach on land over which another has such an easement where such encroachment will interfere with the use of the easement.” Highland Club of West Roxbury v. John Hancock Mutual Life Insurance Co., 327 Mass. 711 , 714 (1951); see also Gray v. Howell, 292 Mass. 400 , 403 (1935) (“It is the general rule that equity will compel by mandatory injunction the removal of buildings and structures which unlawfully encroach upon land of another. This rule has been applied so long and so many times in this Commonwealth that it seems unnecessary to cite authorities in support of it . . . The same rule has been applied, though perhaps more cautiously, where the plaintiff's interest in the land is an easement only.”). In the case at bar, the court is satisfied that where the alleged encroachment is significantly less permanent than a building or structure, it may order removal of that encroachment to the extent that it “will interfere with the use of the easement.” Consequently, should the court find that the defendants are impermissibly encroaching upon plaintiffs’ use, an injunction would be the proper remedy.

The rights of easement holders and the owners of the corresponding servient estate are well settled. “An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” Comm. Wharf East Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). The court must look to the language of the grant to determine the extent of the easement. Barchenski v. Pion, 9 Mass. App. Ct. 896 (1980). “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). “The extent of an easement depends on the circumstances of its creation.” Mugar v. Mass. Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990). “When created by conveyance, the grant or reservation ‘must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.’” Patterson v. Nicholspaul, 448 Mass. 658 (2007), quoting Mugar v. Mass. Bay Transp. Auth., 28 Mass. App. Ct. at 444. Here, the language of the deed is precise in setting forth the location and nature of the easement. [Note 59] The deed provides for a forty-foot right of way, and the referenced and attached plan shows the exact location of the way, over which the plaintiffs’ are granted an easement. [Note 60] The deed recites also, that the plaintiffs may use the easement for “all purposes for which public ways are commonly used in the City of Gloucester.” [Note 61] This court is of the view that such purposes include ingress and egress to the plaintiffs’ property. The gravel drive has been in use for a period commencing prior to 1960. [Note 62] The plaintiffs were using it to access their property at the time defendants purchased their property. [Note 63] It is the plaintiffs who have maintained the gravel drive. [Note 64] The clear language of the deed coupled with the existing conditions and relevant circumstances, make clear that the purpose of the easement is to provide passage. The plaintiffs utilize the gravel drive for such purpose on a day-to-day basis.

However, it is a long-established rule that the owner of the servient property may make beneficial use of his property so long as such use is not inconsistent with the purposes for which the easement was originally granted, see M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 91 (2004); Gerrish v. Shattuck, 12 Mass. 235 , 238 (1882); Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815 , 818 (1979), and doubts regarding whether a use is allowed on the servient land are to be resolved in favor of freedom from servitude. See Butler v. Greystone, 352 Mass. 252 , 258 (1967); Hemenway v. Bartevian, 321 Mass. 226 , 229 (1947). “An easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose.” M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004). The easement holder’s rights are protected, notwithstanding any changes made to the property by the servient estate owner, so long as that purpose is preserved. See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 91 (2004) and cases cited therein. A use is inconsistent with the purpose for which the easement was granted when the proposed use will materially interfere with the rights granted to the easement holder. See Merry v. Priest, 276 Mass. 592 , 600 (1931). This is so because “[t]he law, carrying into effect the intention of the parties, does not intend to restrict the right of ownership of the real estate subjected, further than is necessary to give full effect to the easement.” Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815 , 823 (1979). Therefore, defendants may only park on the easement if doing so does not “. . . 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).

Given the location of the paved parking area, the court concludes that certain of the vehicles in the paved parking area interfere with plaintiffs’ passage over the gravel drive at the point of intersection with Ferry Street. Thus, defendants may park on the paved portion of the easement to the extent that, ingress and egress remain unimpaired. [Note 65] Unimpaired egress includes the ability to safely exit from the gravel drive onto Ferry Street.

This court concludes, therefore, that a vehicle parked in the location referred to as Space One of the paved parking area, poses neither an obstruction nor a safety concern. Its continued use is for such purpose is, therefore, acceptable.

As to Space Two, this court sees no basis in the trial record to preclude all parking based either upon obstruction or safety concerns. In this regard, the following testimony was adduced from the plaintiffs’ expert Mr. Hazarvartian, on direct examination:

Q: In layman’s terms, the second parking space provides some safety issues, but not to the point where it has in parking space number three; correct?

A: That’s correct.

Q: And if the car parked in space number two was actually pulled up further, or that parking space was extended, that issue with parking space number two would be eliminated; could it not?

A: If it were extended enough; yes.

Q: Do you have an opinion as to how far away that could be extended?

A: Not as I sit, I truthfully don’t.

Q: Are we talking more than ten feet?

A: No; not more than ten feet….

Q: So we’re talking a sufficient distance than just getting the bulk of the vehicle beyond the driver’s sight; correct?

A: Yes.

On cross examination, the following exchange took place regarding the three parking spaces at issue. Mr. Hazarvartian testimony was as follows: [Note 66]

Q: Based on your analysis, how far would a motor vehicle have to park in space number three after being moved north in order to provide sufficient sight distance?

A: I didn’t do a detailed analysis. I don’t have an answer to that.

In similar fashion, there is no indication that the requisite analysis has been undertaken with regard to Space Two. This court is unable to determine, with any degree of precision, the extent to which a vehicle would have to be pulled forward in Space Two in order to avoid the possibility of sight line interference. [Note 67] Given the unanimous and uncontraverted testimony that plaintiffs, guests, and emergency vehicles have been exiting from the gravel drive onto Ferry Street for over 12 years now without incident, [Note 68] and given a number of omissions in expert analysis cited above, this court finds no reason to bar vehicles from parking in Space Two. Rather, as to Space Two, the defendants are admonished to pull their vehicles forward to the extent reasonably possible on the paved parking area, in order to maximize existing site distances.

However, this court finds that parking a vehicle in Space Three creates a safety hazard that limits, inappropriately so, plaintiffs’ ingress and egress over the gravel drive or roadway. Space One raises no such concerns.

Accordingly, defendants shall be enjoined from parking in Space Three. The paved area itself does not materially interfere with plaintiffs’ ingress and egress, and therefore, defendants need not remove the pavement from the easement.

As plaintiffs did not raise the issue of trespass at trial or in their Post-Trial Brief, this court considers the issue waived. [Note 69]

Judgment to issue accordingly.