LAURENCE FORDHAM and HARRIET FORDHAM v. PAUL O'NEILL JR.

Introduction

This case concerns a driveway, a part of whose entrance encroaches on the next-door neighbor’s land. The driveway was built by plaintiffs Laurence and Harriet Fordham and leads to their home at 518 South Avenue in Weston. Defendant Paul O’Neill owns the neighboring property at 526 South Avenue on which the driveway encroaches.

The encroachment is roughly 570 square feet, triangular in shape, at the end of the driveway where it meets South Avenue. See Exs. 1 & 2 (attached). That it encroaches, and that the Fordhams knew it encroached at the time they built it, is not disputed. What is disputed is whether the Fordhams were granted or otherwise acquired an easement for the encroachment, and, if not, the appropriate relief to be granted Mr. O’Neill. [Note 1]

Whether such an easement was granted or acquired — expressly, by prescription, or by estoppel — was the subject of the parties’ cross-motions for summary judgment, addressed in the court’s Memorandum & Order on those motions (Jul 14, 2008) [Note 2] and the Memorandum & Order Denying Plaintiffs’ Motion for Reconsideration (Aug. 7, 2008). For purposes of those motions, as the rules require, I accepted the Fordhams’ version of events: that there was an oral agreement between the Fordhams and Mr. O’Neill’s predecessor-in-title (Evelyn Cohen) to grant the Fordhams an easement to build a part of their driveway entrance in the encroaching area; that that oral agreement was never put in writing, never signed, and never recorded; and that, in ignorance of this, the Fordhams filled the area, built their driveway entrance (in part) in the encroachment, and subsequently used it. But even accepting those facts as true, no easement rights exist. On those facts, as a matter of law, the agreement was a revocable license, not an easement, and was revoked shortly before this lawsuit began; [Note 3] the Fordhams’ use of the encroachment up until the time of revocation was permissive, not adverse, precluding the accrual of prescriptive rights; and the Fordhams’ lack of reasonable reliance on the alleged promise of an easement precludes estoppel. See Summary Judgment Mem. at 3-13; Mem. & Order Denying Motion for Reconsideration at 2-3. Summary judgment thus entered in favor of Mr. O’Neill on those issues. The parties’ subsequent attempts to settle the case were unsuccessful, and a jury-waived trial then took place before me on the question of appropriate relief.

The parties, their experts, and a third party witness (Mr. Leone, the prospective purchaser of the O’Neill property, see n. 1, supra) testified at the trial. Numerous exhibits were admitted, and I also took a view. Based on my assessment of the credibility, weight, and inferences to be drawn from that evidence, I find and rule as follows.

Facts and Analysis

Despite the summary judgment rulings, the Fordhams argue that the encroachment should be allowed to remain because, in their view, it is de minimus in size with little practical effect on Mr. O’Neill, and the cost of removing it and re-locating the driveway entrance is high, far exceeding any harm to Mr. O’Neill. I disagree.

The applicable law is well established and straightforward. “In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel the removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to the injury suffered by the owner of the lot upon which the encroachment has taken place.” Peters v. Archambault, 361 Mass. 91 , 92 (1972) (and cases cited therein). There are, however, exceptional cases where the court has declined to order removal when the encroachment is de minimus, was made innocently, the cost of its removal would be greatly disproportional to the injury, the rights of the owner may be protected by means other than removal, or where removal would be inequitable under the circumstances. See Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 226 (1999). “What is just and equitable in cases of this sort depends very much on the particular facts and circumstances disclosed.” Id. (internal quotations and citations omitted). Here, the Fordham encroachment is not de minimus or trivial, and the Fordhams can readily change their driveway to make it non- encroaching while keeping adequate access to the street.

As noted above, there is no dispute that the driveway entrance encroaches on Mr. O’Neill’s land and that the Fordhams have known that from the time of its construction. The encroachment is also no small thing. A brief description is instructive. As shown in Ex. 2, the encroachment is a portion of the Fordham driveway’s entrance onto South Avenue in Weston. The topography of that area was originally lower, sloping down towards the road and then up to the road surface, and was filled-in by the Fordhams who put their gravel driveway on top. The Fordhams added approximately 6 more feet of fill in 1993-94, elevating the driveway so that it met the roadway at grade. As part of this work, the Fordhams increased the turning radiuses at the entrance of their driveway on South Avenue, thereby also increasing the size of the encroachment on the O’Neill property. [Note 4] The Fordhams’ survey (Ex. 2), which I credit and find accurate, shows the location and extent of the encroachment. It is roughly 570 square feet, triangular in shape, and has three parts: Area C (284 square feet, from the bottom of its slope to its top), Area B (206 square feet, from the top of the slope to the edge of the gravel driveway), and Area A (116 square feet of the gravel driveway). [Note 5] See Ex. 2. It stretches approximately 68’ along the property line, and is a little over 20’ at its widest point (along the roadway). Id. Mr. O’Neill testified that it interferes with his plans to put a circular driveway at the front of his house, which would enable him more easily to drive his 42’ motor home in and out. [Note 6] All this is far more substantial than the encroachments that have been found to be de minimus. See Capodilupo, 46 Mass. App. Ct. at 227 (encroachment only inches); Triulzi v. Costa, 296 Mass. 24 , 28 (1936) (same); Tramonte v. Colarusso, 256 Mass. 299 , 300 (1926) (encroachment only fraction of an inch).

Courts may also consider whether the cost of removing an encroachment is greatly disproportional to the benefit obtained by removing it. See Capodilupo, 46 Mass. App. Ct. at 227. Mr. O’Neill’s expert, Randy Meuse, a senior vice president of GZA GeoEnvironmental, testified that the cost of removing the encroachment and restoring the O’Neill property to its pre- encroachment condition would be $34,439.64. This consists of the $9,539.64 cost of the survey and soil characterization already performed (work I find was reasonably necessary, and whose cost was fair), [Note 7] and the remaining $24,900 is the estimate for the cost of removing the encroachment (approximately 80 cubic yards of soil according to Mr. Meuse) and restoring the O’Neill property to its prior condition (again, necessary work at a reasonable cost). I credit Mr. Meuse’s figures, which were largely unchallenged by the Fordhams. [Note 8]

Removal is also not the end of the world for the Fordhams. They have plenty of space to relocate the driveway, currently 13’ wide, [Note 9] so that it would be entirely within their own property (30’ wide, see Ex. 1). Conservation Commission permits may be needed on the eastern side, a distance away from a wetland, but a retaining wall could be built along the O’Neill boundary (rather than the present tapered slope), leaving more than 13’ in width from there to the top of the current slope on the other (eastern) side so that no additional fill on the east might be necessary. See Ex. 2. There is also no magic to a 13’ width. Something narrower, 10’ say, could be accommodated between the O’Neill property boundary and the beginning of the slope on the other side (13 ½‘ away), even without Conservation Commission permits for further filling on that side. With permits, of course, anything up to 30’ could be built on the Fordhams’ own land, and there was nothing in the evidence to suggest that the Conservation Commission would impose unreasonable conditions on the relocation of the driveway in that area. In any event, at the end of the day, this is the Fordhams’ problem, not Mr. O’Neill’s. [Note 10]

I thus find and rule that the present encroachment interferes with the beneficial use of Mr. O’Neill’s property, that the cost of its removal is not disproportionate, and that the Fordhams will not suffer disabling hardship if they are ordered to remove it, even in its entirety. Removal is thus ORDERED, at the Fordhams’ expense, and must occur within 90 days.

The analysis thus turns to the proper measure of damages to be awarded Mr. O’Neill as compensation for the 22 years the encroachment has existed without permission. [Note 11], [Note 12] These are in addition to the equitable relief also awarded (removal of the encroachment and restoration of Mr. O’Neill’s land to its original state).

In cases, as here, where a trespass has been ongoing, an owner is entitled to damages, ordinarily measured by the loss of rental value of his property while the trespass continued. See Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 , 539 (1968) (plaintiffs entitled to loss in rental value from continuous errant golf balls landing on their property from neighboring country club); Belkus v. Brockton, 282 Mass. 285 , 290-291 (1933) (where cause of trouble was not permanent and damage would cease on its removal, loss in rental value, not diminished market value, was proper measure of damages). Put simply, what would Mr. O’Neill have charged, and the Fordhams paid, for the use of the encroachment for those 22 years?

The Fordhams’ suggested approach for assessment of damages, offered through the testimony of their expert witness Peter Casey, illustrates the difficulty of the calculation in the circumstances of this case. Mr. Casey is a real estate broker, with experience advising clients on listing prices for their properties, and then tracking the prices at which properties actually sell. He is not, however, a real estate appraiser (a field of expertise involving study, examination, and then certification), and has never rendered a formal real estate appraisal. He accurately framed the question as one for the purchase of a temporary easement, but admitted that the data to do a standard, comparative market analysis simply does not exist. Easements are not searchable in real estate databases, are typically only part of a sale that includes many other things (generally, the property benefited by the easement), and the easements that are sold separately and are separately recorded at the Registry result from unique negotiations between grantor and grantee and thus often “reflect a price that has nothing to do with the [fair market] value of the easement.” Transcript, Vol. 2, p. 154. In any event, Mr. Casey could not find any instances of the sale of the use of a driveway, much less one comparable to this situation.

Having failed in this search, he then did something different. He looked for properties comparable to Mr. O’Neill’s, found their sale prices, and divided that price by their square feet. He then took their average square foot price ($10.27) and multiplied it by the number of square feet in the encroachment at issue in this case, which gave him $5,648.50. But that makes no sense. Among other problems, as Mr. Casey admitted, it is nothing more than “simple division,” applicable to any part of the O’Neill lot, with no attempt to determine the value of the use of this particular location. Even a moment’s reflection indicates the difference in value between a location that provides access to a road, and another hundreds of feet away, at the back or in the middle of the property, that provides access to nothing. Yet Mr. Casey’s approach would give the same value to both. The proper measure should focus on what the encroachment was worth to the Fordhams (who used it to access their property) (i.e. the financial benefit they received), since that will show what they would (or, perhaps more accurately, should) have paid (i.e., its actual rental value to them). See Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189 , 200 (1956) (in valuing the taking of property adapted for specialized use — a recreational camp — the judge should have instructed the jury to consider the “use of the property for the special purpose for which it had been constructed and was being employed by the Girl Scouts”). See also Restatement (Second) of Torts, §929 comment c (1979) (“if the defendant is a willful trespasser, the owner is entitled to recover from him the value of any profits made by the entry”); Restatement (Third) of Restitution and Unjust Enrichment §40 (2011) (“A person who obtains a benefit by an act of trespass or conversion…is liable in restitution to the victim of the wrong”).

The Supreme Judicial Court has recognized “that more complex and resourceful methods of ascertaining value must be used where property is unusual or specialized in character and where ordinary methods will produce a miscarriage of justice.” Newton Girl Scout Council, Inc., 335 Mass. at 195. Mr. O’Neill attempted to do this in a pre-trial filing [Note 13] by seeking to quantify the amount of money the Fordhams saved over the past twenty-two years from refusing to relocate the driveway. To do this, he (1) started with a 1993 affidavit Mr. Fordham in which Mr. Fordham estimated that the then-cost to relocate his driveway onto his property would be approximately $10,000, [Note 14] (2) assumed yearly increases to those construction costs, (3) applied the prime rate of interest to the money not spent on construction that year, and (4) ended up with a total “interest saved” of $107,601.97 through 2012, which he sought as his damage award. See Exhibit A to Paul X. O’Neill Jr.’s Memorandum of Law Regarding Damages (Sept. 19, 2012).

There are at least three problems with this, which is why I ruled it inadmissible. First, the proper starting point is not the cost to relocate the driveway, i.e. shift it, in its current dimensions, to the east. As noted above, the Fordhams can do such a shift, or not, as they wish. [Note 15] If such an approach to a damage award is adopted, the more appropriate “cost avoided” is the cost to remove the encroachment. [Note 16] Second, I give no credence to the $10,000 figure. It comes solely from Mr. Fordham’s 1993 affidavit, was made by Mr. Fordham without detail or explanation, and was unsupported by any competent testimony (Mr. Fordham is a lawyer, not a construction expert). Third, Mr. O’Neill posits a steady $4,852.94 annual increase in construction costs, which he gets by starting with the $10,000 from the 1993 affidavit, jumping to the Fordhams’ 2012 estimate that it would now cost between $80,000 and $105,000 (mid-point $92,500), and evenly dividing that difference year by year. All this is far too speculative and rough (among other things, there is nothing to show that the 1993 scope of work was the same as 2012’s; 2012’s might be more extensive and involve different permitting), and the problems of such rough division are compounded by Mr. O’Neill’s calculation of “interest saved”, year by year, on those year by year numbers. It also shows the vast difference between the cost of relocating the driveway, optional with the Fordhams (a mid-point cost of $92,500) and the cost of simply removing the encroachment (the actual “savings”), which Mr. O’Neill’s own expert puts at only $34,439.64.

At trial, Mr. O’Neill’s advanced an alternative theory — that the value of the Fordhams’ use and occupancy of the encroachment should be based on the present cost of relocating the Fordham driveway. According to the Fordhams’ expert, Robert Gemma, the cost of relocating the Fordham driveway — effectively shifting its entire width to the east — is between $75,000-$105,000. [Note 17] This includes construction costs, which Mr. Gemma estimated to be between $60,000 and $75,000, and wetlands permitting, [Note 18] which was estimated at $15,000 with no appeal and $30,000 if there was an appeal. Mr. O’Neill contends in his post-trial brief that this value “is, in essence, a restitutionary measure of damages insofar as it requires Mr. Fordham to disgorge the value of the driveway to him over the past 20 years.” Proposed Findings of Fact and Rulings of Law of Defendant and Plaintiff-in-Counterclaim, Paul X. O’Neill, Jr. at 18. But this is incorrect. As noted above, the Fordhams have no obligation to shift the entirety of their driveway to the east. They need only remove the encroachment (total cost, according to Mr. O’Neill’s own expert, $34,439.64), and can make do with a narrower driveway, the cost of which (retaining wall and guard rail on the O’Neill side, expanded gravel and guard rail on the other) [Note 19] will be far less than $105,000.

Mr. O’Neill’s approach makes sense, however, if based on the cost of removing the encroachment. As noted above, this is the cost the Fordhams have avoided for the past 22 years, and a fair measure of the damage done to Mr. O’Neill. The Fordhams had no right to keep their driveway on the encroachment after May 20, 1992. [Note 20] Had he had to remove it himself, Mr. O’Neill would have had to pay, and thus been awarded, $34,439.64 — the cost of its removal. [Note 21] G.L. c. 231, §6B provides that in tort actions alleging damage to real property, an award of damages is entitled to pre-judgment interest at a rate of 12 percent per year from the date of the commencement of the action, which in this case is August 27, 1992 when Mr. O’Neill filed his answer and counterclaims containing his trespass claim. This is simple interest, not compound interest. See R.H. White Realty Co., Inc. v. Boston Redevelopment Authority, 371 Mass. 452 , 456 (1976). Thus, at the time the answer and counterclaims were filed, the Fordhams saved $34,439.64 by keeping their driveway on the O’Neill property. They have subsequently retained the interest on that amount, at the statutory rate of 12%, for each year since. I therefore find and rule that Mr. O’Neill is entitled to $90,920.65 — 12% interest on $34,439.64, per year, for 22 years — for the Fordhams’ use and occupancy of his property.

The final claim is Mr. O’Neill’s against the Fordhams for tortious interference with prospective relations. The facts, in brief, are these.

In 1985, Joseph Leone, the owner of a local civil engineering contracting firm, purchased 510 South Avenue [Note 22], located to the east of the Fordham property. Mr. Leone intended to build a house on the lot but, because of wetlands issues, the only buildable portion of the lot was located at the rear of the property. The wetlands also created an access problem, and Mr. Leone needed a wetlands crossing. He initially proposed filling in a portion of the wetlands, but ran into difficulty with the Conservation Commission and faced opposition from Mr. Fordham. He then approached Mr. Fordham about obtaining an easement over the Fordhams’ driveway to avoid disturbing the wetlands, but Mr. Fordham refused. Mr. Leone then contemplated building a bridge over the wetlands, but Mr. Fordham opposed that as well.

During his survey work for the proposed new bridge, Mr. Leone discovered that a portion of the Fordham driveway encroached on Mr. O’Neill’s property. Mr. Leone then approached Mr. O’Neill and asked whether Mr. O’Neill would be interested in selling his property to him. Mr. O’Neill’s counsel then wrote to the Fordhams on May 20, 1992 and informed them that a survey was being prepared for Mr. O’Neill and that “early indications are that a portion of your driveway encroaches on Mr. O’Neill’s land . . .” Letter from M. Catherine Mawn, Esq. to Mr. and Mrs. Fordham (May 20, 1992). The survey confirmed this. After receiving this letter, Mr. Fordham checked the registry and discovered that no easement from the Cohens had ever been recorded.

After seeing the results of Mr. O’Neill’s survey, Mr. Leone made an offer to purchase the O’Neill property for $315,000, which was approximately $65,000 more than its previous tax assessments and the sale price of a comparable home located next to Mr. O’Neill that had just taken place. At trial, Mr. Leone was clear about his reasons for wanting to buy the O’Neill property: leverage in his negotiations with Mr. Fordham for access to Mr. Leone’s otherwise landlocked property (“It wasn’t one of the reasons; it was the only reason.”). Since part of the Fordham driveway was on the O’Neill property, Mr. Leone believed he might be able to exchange easements with the Fordhams so that he could use their driveway for access to the 510 property in order to build a house on the lot.

In July 1992, Mr. Leone wrote to Mr. Fordham stating that he had an interest in the O’Neill property pursuant to the purchase and sale agreement, and that he wished to discuss the Fordhams’ use of the encroachment. The Fordhams never responded to Mr. Leone’s letters. Instead, on July 24, 1992, they filed this action and obtained a lis pendens on the portion of the O’Neill property the encroachment occupied. At that point, Mr. Leone withdrew his offer, and Mr. O’Neill returned Mr. Leone’s $30,000 deposit. The lis pendens did not affect Mr. Leone’s ability to obtain financing, since he testified that he had sufficient cash on hand to complete the transaction. Rather, the lawsuit and lis pendens indicated to him that Mr. Fordham did not want to negotiate, and Mr. Leone was unwilling to litigate the dispute in court.

Mr. O’Neill contends that the filing of this lawsuit and the placing of a lis pendens on his property constitutes a tortious interference with his purchase and sale contract with Mr. Leone, and seeks $65,000 in damages — the difference between Mr. Leone’s offer and the market value of the O’Neill property at the time. I disagree.

To establish a claim for intentional interference with contractual relations, a plaintiff must prove (1) he had a contract with a third party, (2) the defendant knowingly induced the third party to break that contract, (3) the defendant’s interference was intentional and improper, and (4) the plaintiff was harmed by the defendant’s actions. See G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262 , 272 (1991). Mr. O’Neill’s tortious interference claim fails for the simple reason that the Fordhams’ “interference” — the filing of this lawsuit and the recording of a lis pendens — was not “improper,” and was not done to induce Mr. Leone to back out of the purchase and sale. The Fordhams may have lost this lawsuit, but they had a perfect right to bring it to determine their rights, and the lis pendens was an allowable part of that proceeding. Also, the lawsuit was not targeted at inducing a breach of contract. It was brought by the Fordhams to determine their rights. Mr. Leone was not precluded from going through with the purchase. Rather, he voluntarily chose to back out when it became apparent that his true goal — to gain leverage over the Fordhams in negotiations for access to his other property — would not succeed. Mr. O’Neill’s tortious interference claim is thus DISMISSED.

Conclusion

For the foregoing reasons, it is ORDERED, ADJUDGED and DECREED that the Fordhams remove the encroachment from the O’Neill property, in its entirety, at their own expense, no later than 90 days from the date of the Judgment. It is further ORDERED that they pay Mr. O’Neill $90,920.65 as damages for the trespass. Mr. O’Neill’s claim for tortious interference with contractual relations is DISMISSED, WITH PREJUDICE.

Judgment shall enter accordingly.

That judgment, however, is entered with the following caveat. As noted above, the $90,920.65 in damages is predicated on the 1992 cost of removing the encroachment being the same as the present cost ($34,439.64). I made that finding based on reasonable inference and the lack of contrary evidence (see discussion above), but acknowledge that the lack of contrary evidence may have been the result of a mis-interpretation of my pre-trial ruling excluding Mr. O’Neill’s proffer of a damage measure based on the supposed 1992 cost of re-locating the driveway (see discussion above). Accordingly, if timely filed (see Mass. R. Civ. P. 59(e)) and if any of the parties, in good faith, believe it would be a figure other than $34,439.64, I will re-open the evidence for the limited purpose of taking testimony on the 1992 cost of removing the encroachment.

SO ORDERED.