MICHAEL P. SHAUGHNESSY and CAROL SHAUGHNESSY, as TRUSTEES OF THE PMM TRUST vs. EDWARD R. GOLDFARB, TRUSTEE OF THE BAY 23 REALTY TRUST

Plaintiffs filed their Verified Complaint on May 5, 2011, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to rights, including related costs, in a Sewer Easement, defined infra, and an injunction to have improvements made by Defendant in the Sewer Easement removed. Defendant filed its Answer and Affirmative Defenses on June 14, 2011. A case management conference was held on July 13, 2011. Defendant filed its Motion for Summary Judgment on February 2, 2012, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix containing the Affidavit of Edward R. Goldfarb. On March 21, 2012, Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Material Facts, and Appendix containing the Affidavits of Michael Shaughnessy and Paul Jacobson ("Jacobson"). Defendant filed its Opposition on April 9, 2012. On August 24, 2012, Plaintiffs filed their Reply. A hearing was held on both motions on September 5, 2012, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 5(c).

I find that the following material facts are not in dispute:

1. Plaintiffs owns property located at 21 Bel Air Road, Hingham, MA ("Plaintiff Property"). Plaintiff Property consists of two parcels, Lot 8 as shown on Land Court Plan 4777G, and Lot 12 as shown on Land Court Plan 19056B.

2. In June 2009, Defendant purchased property located at 23 Bel Air Road, Hingham, MA ("Defendant Property"). Defendant Property is shown as Lot 13 on Land Court Plan 19056B. Plaintiff Property and Defendant Property abut.

3. The predecessors in title to Plaintiff Property and Defendant Property executed an easement agreement (the "Sewer Easement") on May 4, 1999. The Sewer Easement was registered on certificates of title for both Plaintiff Property and Defendant Property on July 23, 1999.

4. Paragraph 2 of the Sewer Easement reads as follows:

[The predecessor in title to Defendant] hereby grants to [the predecessor in title to Plaintiffs] the perpetual, non-exclusive right and easement, as appurtenant to [Plaintiff Property] to use that portion of [Defendant Property] shown as "Prop. 10' Wide Easement" on the Sketch Plan [dated February 22, 1999] [the "Sketch Plan"] for the maintenance, repair, replacement, upgrade or reconstruction of the underground sewer main presently located approximately as shown on the Sketch Plan. The exact location of said sewer easement [the Sewer Easement] shall be five (5) feet on either side of the center line of the sewer main as it presently is located on [Defendant Property]. After the exercise by [Plaintiffs] of any rights granted under this paragraph 2, Plaintiffs shall restore the surface of the easement to its condition just prior to such exercise.

5. The sewer line was installed approximately five feet deep. At the time of the execution of the Sewer Easement (and at the time that Defendant purchased Defendant Property) the area of the Sewer Easement was a grassed lawn.

6. Defendant hired Sean Papich Landscape Architecture ("Papich") to prepare plans for a landscape renovation to Defendant Property which included a pool, patio and surrounding landscaping (the "Improvements"). Papich prepared a Design Development Site Plan dated September 21, 2009 (revised January 12, 2010) (the "Design Plan"). The Design Plan and a Notice of Intent were filed with the Hingham Conservation Commission in January 2010. Construction work began in April 2010. The pool and the spa were completed in early spring 2011, and at that time work began on the patio. A Plot Plan dated December 7, 2011, and prepared by Merrill Associates, Inc. (the "Plot Plan") shows the pool and spa to be outside of the Sewer Easement. The Plot Plan shows that a portion of the patio (including the bluestone, stone walls, plantings and pool-related pipes and electrical conduits) lies within the Sewer Easement.

7. The patio (comprised of bluestone) is dry laid (i.e. without the use of mortar or wet cement), and the bluestone can be removed from the patio and temporarily set aside.

8. In the event of repair work on the sewer line, the cost to restore the surface of the Sewer Easement with the Improvements will be substantially more than the costs to restore a grass covered area. In his uncontested Affidavit, Jacobson, who is a licensed builder, construction supervisor, and septic system installer, estimated that the cost to restore the surface area of the Sewer Easement if it were a grass covered area would be $13,570. Jacobson attested that to restore the area with the Improvements, Plaintiffs must, inter alia, remove and store the bluestone, dig up and remove landscaping over the affected area, possibly remove retaining walls, and remove and replace PVC plumbing that services the pool on Defendant Property. Jacobson estimated that the cost of restoring the surface area with the Improvements would be $58,670, plus a $10,000 contingency based on the risk of damage to the retaining walls.

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Plaintiffs argue that the Improvements constitute an impermissible interference with the Sewer Easement and must be removed. Defendant argues that it should not have to remove the Improvements because the language in the non-exclusive, rarely used Sewer Easement states "[Plaintiffs] shall restore the surface of the easement to its condition just prior to exercise [of Plaintiffs' rights]." Defendant maintains that this language contemplated foreseeable improvements to the surface area of the Sewer Easement, and Plaintiffs are therefore responsible for the increased cost burden to restore the surface. Defendant also argues that any cost analysis of the removal of the Improvements is premature and need not be resolved until such time as a sewer repair is necessary. I shall address each of these issues in turn.

A. Rights of the Parties:

Defendant argues that the language in the Sewer Easement governs this dispute; specifically the language relevant to the requirement that Plaintiffs restore the surface area of the Sewer Easement. "It is for the court to determine the extent of allowable use by construing the plain language of the easement in the context of the circumstances as they existed at the time of execution." (emphasis in original). Patterson v. Paul, 14 LCR, 128, 130 (2006) (aff'd at Patterson v. Paul, 448 Mass. 658 (2007)), citing J.S. Lang Eng'g v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923). Defendant also argues that as the fee owner of the servient estate, they are entitled to use their land as they desire. "The 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; and public policy requires...that an owner of real estate should be allowed to make all improvements upon it, which can be made consistently with the rights of others." Lowell v. Piper, 31 Mass. App. Ct. 225 , 229-230 (1991); Atkins v. Bordman, 2 Met. 457 , 475 (1841). A landowner may "well use and cultivate the surface of his land, erect fences, and perhaps other structures thereon, without any invasion of the rights of the owner of the [subterranean] easement." Clark v. City of Worcester, 125 Mass. 226 , 231 (1878).

Plaintiffs argue that the Sewer Easement should be interpreted in a manner that gives full protection to Plaintiffs' easement rights. Plaintiffs' "right of use arising out of its easement is superior to [Defendant's] property interest, and [Defendant] must avoid activities which are inconsistent with [Plaintiffs'] use of the easement." Texon, Inc. v. Holyoke Machine Co., 8 Mass. App. Ct. 363 , 365-366 (1979). The "owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder(s exercise of his rights." Id. at 366; Western Mass. Electric Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815 , 818 (1979) (hereafter Sambo's).

Moreover, "The court will neither interpret the easement in a manner contrary to its plain language, nor abandon reasonableness in favor of giving great weight to what the parties could have included, but did not." Patterson, supra at 133. "There are numerous other cases which refer to or imply reasonableness in determining what is a permitted use for either the easement holder or the owner of the servient estate." Sambo's, supra, at 825.

The issue in this case boils down to whether the Improvements cause a material increase in cost to Plaintiffs, thereby constituting an interference with Plaintiffs' easement rights. This inquiry must be kept in context of the plain language of the Sewer Easement, which states, inter alia, that the Plaintiffs must restore the surface area of the Sewer Easement to its condition "just prior to such exercise [of rights.]" The relative rights of the parties are first governed by the Sewer Easement. Defendant argues that the language relative to restoring the surface area to the condition prior to the exercise of easement rights contemplates permissible improvements to Defendant Property in the area of the Sewer Easement. Defendant also argues that the Sewer Easement could have, but did not, prohibit all future development on the surface above the Sewer Easement.

The plain language of the Sewer Easement clearly states that Plaintiffs are responsible for restoring the surface of the Sewer Easement. This language, however, must be kept in the context of reasonableness. See Patterson, supra, at 133. As far as Defendant is concerned, he has free rein to construct any and all improvements over the Sewer Easement. If this proposition was correct, then Defendant would be free to, e.g., lay foundation or construct an addition to his house over the Sewer Easement. Then, when Plaintiffs need to exercise their rights pursuant to the Sewer Easement, Defendant would have Plaintiffs bear the entire cost burden of reconstructing such improvements to the surface of the Sewer Easement. It would be unconscionable and unreasonable to hold such construction to be permissible, and burden Plaintiffs with the resulting increased cost. Defendant's rights are not limitless, and Defendant cannot unreasonably interfere with Plaintiffs' easement rights. To a certain extent, Defendant is free to improve its property; however, Defendant's rights in this regard are limited by the common law of the Commonwealth as it relates to the relative rights of both a servient estate and easement holder. See e.g. Sambo's, supra (owner of servient estate cannot take action leading to material increase in costs to owner of easement); Patterson, supra, at 133 (and cased cited therein) (reasonableness implied in easement agreements).

As it exists now, there is bluestone, stone walls, plants, and pool-related pipes and electrical conduits that exist above the Sewer Easement. Defendant alleges that he is capable of and willing to move the bluestone in the event that Plaintiffs must complete maintenance or improvements to the Sewer Easement. Defendant's voluntary act is insufficient as a matter of law because other portions of the Improvements, e.g. stone walls, plantings, etc. will still exist over the Sewer Easement. Contrary to Defendant's contention, the removal and temporary moving of the bluestone is not a panacea that ends this dispute.

Defendant has rightfully pointed out that as of this date, Plaintiffs are uncertain as to the extent and exact location of any areas of the Sewer Easement that may require maintenance and improvement. To wit, any repairs may be in areas that are not affected by the bluestone and related improvements. The obvious fact, however, is that it will be materially more expensive to restore electrical apparatus, stone walls, piping, and bluestone than to restore a grass covered area. The affidavit of Jacobson is evidence to that effect. Jacobson estimated that if the surface of the easement area was a lawn, it would cost approximately $13,570 to restore the surface area. Jacobson estimated that it would cost $58,670 (with a $10,000 contingency) to dig up the entire surface area of the Sewer Easement and to restore the area to the condition as it exists today. [Note 1] As articulated in Texon, Inc. and Sambo's, the owner of the servient estate cannot take action that would lead to a material increase in cost, or inconvenience to the rights of the easement holder. This is true even if the actions of the servient estate owner are not expressly prohibited by the grant of easement.

Nonetheless, Defendant argues that the Sewer Easement could have, but did not contain a clause prohibiting all construction over the Sewer Easement. Although neither party cites to Sambo's, this court finds that case relevant to this matter. In Sambo's, the plaintiff was the owner of an easement for electrical transmission lines including the right to install subterranean cables. The defendant owned the servient estate and wished to pave the surface above the easement, which would increase the cost to the plaintiff to install underground utilities. [Note 2] Pursuant to the grant of easement, the easement holder was responsible for the cost of installing the underground cables. The Appeals Court in Sambo's held that the increased cost to the plaintiff (caused by paving of the surface area of the servient estate) to install the underground cables would "materially interfere with the easement." Sambo's, supra, at 820. Even though the grant of easement did not prohibit the owner of the servient estate from paving the surface of the easement, the Appeals Court nonetheless held that such paving was an infringement upon the rights of the easement holder. Id. Similarly, in furtherance of the above discussion, the fact that there is no clause in the Sewer Easement prohibiting construction over the Sewer Easement does not mean that Defendant is free to construct anything he so desires.

Based on the foregoing discussion, I find that the Improvements are an impermissible interference with Plaintiffs' rights under the Sewer Easement.

B. Nature of Relief

Plaintiffs claim they are entitled to a mandatory injunction requiring removal of all of the Improvements. See Metropolitan District Commission v. Plotnick, 354 Mass. 1 , 3-4 (1968); Texon, Inc., supra. Defendant argues a mandatory injunction is an inappropriate remedy claiming that this entire litigation is not yet ripe because, as of now, the Sewer Easement requires no maintenance or restoration. This issue requires not only a balancing of the rights of both parties in this matter, but a balancing of the equities.

Again, neither parties cite to Sambo's, which provides this court guidance on a proper remedy in this matter. As this court has determined, the Appeals Court in Sambo's also held that the increased cost to the plaintiff (caused by defendant's paving of the surface area of the servient estate) to install the utilities would "materially interfere with the easement." Sambo's, supra, at 820. The court continued to state, however, that "[the easement holder] is not necessarily entitled to a blanket injunction precluding [paving]." Id. Consequentially, the Appeals Court remanded that case to the trial court to draft a judgment in accordance with its decision. See infra, FN 3.

In the case at bar, this court recognizes that the Improvements will increase the cost of maintaining the Sewer Easement and restoring Defendant Property to its condition immediately prior to Plaintiffs' exercise of their rights pursuant to the Sewer Easement. At the same time, a blanket injunction requiring Defendant to rip up the Improvements is not only inequitable, but is not consistent with the state of the law. See Sambo's, supra, at 820, 829-830; Atkins v. Bordman, supra, at 471 ("[t]he law...does not intend to restrict the right of ownership of the [servient estate], further than is necessary to give full effect to the easement; and public policy requires...that an owner of real estate should be allowed to make all the improvements upon it, which can be made consistently with the just rights of others.")

Accordingly, this court is not willing to issue an injunction requiring Defendant to remove the Improvements. In this regard, the parties shall attend a status conference on Friday, January 4, 2013, at 10:00 AM, to determine how the parties may wish to proceed in terms of entering an acceptable resolution in this matter. [Note 3]

Judgment shall enter after resolution of the remaining issues in this case.