This case concerns a dispute between abutters as to their respective rights (or lack thereof) to use a right of way in Cambridge, Massachusetts known as Drummond Place (defined below as the ROW). Plaintiffs Robert Casey, Francis Casey, and Helen Casey (together, Plaintiffs [Note 1]) are residential abutters on one side of the ROW, which they use not only to access their property (defined below as the Casey Property), but also to park automobiles. Defendant LaCourt Family, LLC (Defendant) is a commercial abutter whose property (defined below as the LaCourt Property) is located on the opposite side of the ROW from the Casey Property. By deed, both the Casey Property and the LaCourt Property had a right to use the ROW for access to public roadways.
Starting in or around the early 1960s through at least 2010, Defendant and its predecessors in title maintained permanent fencing on the edges of its property (defined below as the Fence), which made it impossible to access the ROW from the LaCourt Property. During that period, Plaintiffs, their predecessors in title, and their neighbors used the ROW exclusively as a means of egress and ingress, and for parking. By parking in the ROW, they effectively blocked the ability of others to travel across the ROW, a problem that they solved by making arrangements among themselves to ensure that all neighbors parking on the ROW were able to access their properties and automobiles when needed.
In or around 2012, as part of a plan to convert the building (defined below as the School) on the LaCourt Property to residential and commercial uses, Defendant installed a gate (defined below as the Emergency Gate) in the Fence in order to restore its access to the ROW. In connection therewith, Defendant demanded that Plaintiffs and their neighbors cease and desist from using the ROW for parking, and threatened to tow any automobiles doing so.
Plaintiffs now seek a judicial determination as to the parties respective rights in the ROW, whether for access and/or for parking.
Plaintiffs commenced this case by filing an unverified complaint on October 16, 2012, which sought, pursuant to G. L. c. 231A, § 1, a declaratory judgment relative to the use of the ROW. Plaintiffs also sought a preliminary injunction preventing Defendant from using the ROW and from towing cars using the ROW for parking.
A case management conference was held on November 13, 2012. Defendant filed an answer on November 23, 2012. By order dated January 9, 2013, the court granted Plaintiffs request for a preliminary injunction, directing that Plaintiffs would be allowed to park in the same area of the ROW that, according to Plaintiffs, had been used for parking for at least the last fifty years. Defendant moved for summary judgment on January 17, 2014, which was supported by a memorandum of law, a statement of material facts, and an appendix containing, among other documents, a joint affidavit of the Caseys, and excerpts of the transcripts of Plaintiffs depositions. On February 18, 2014, Plaintiffs cross-moved for summary judgment, which was supported by a memorandum of law, a statement of material facts, and an appendix containing, among other documents, different excerpts from Plaintiffs depositions and photographs depicting the parties properties and the ROW. Defendant filed its opposition to Plaintiffs cross-motion, which included a supplemental appendix containing an affidavit of Rafael Carvalho (a contractor who installed a gate on the LaCourt Property in 2012). A hearing on the parties motions for summary judgment was held on May 28, 2014. Plaintiffs filed a supplemental memorandum on the parties motions on June 2, 2014. At that time, the matter was taken under advisement.
Findings of Material Fact
Based upon the documentary and testamentary evidence adduced by the parties in their respective motions for summary judgment, I find that the following material facts are not in dispute:
A. An Overview of the Parties Properties and the ROW
1. The titles to the properties at issue can, for relevant purposes, be traced back to 1892, when a man named Edmund Reardon (Reardon) owned a large plot of land in Cambridge, which contained, among other parcels, the properties today owned by the parties. The plot of land owned by Reardon is shown on a plan titled Plan of Valuable House Lots for sale in North Cambridge Belonging to Edmund Reardon, which is dated August 22, 1892, was prepared by W. A. Mason & Son, Surveyors, and can be found at Middlesex County Plan Book 76, Plan 5 (the 1892 Plan).
2. Robert is the owner of a two-family house located at 1 Drummond Place, Cambridge, Massachusetts (the Casey Property), which is located off the south side of Norris Street. The Casey Property encompasses the rear portions of the parcels defined on the 1892 Plan as Lots 8 and 9. Robert currently lives on the second floor of the Casey Property, and his parents, the Caseys, currently live on the first floor.
3. Defendant is the owner of commercial property located at 40 Norris Street, Cambridge, Massachusetts (the LaCourt Property), onthe southside of Norris Street. The LaCourt Property encompasses the parcels defined on the 1892 Plan as Lots 3-7 and Lot B, plus a portion of Lot 2. The LaCourt Property contains a building that was formerly used as a school (the School) and an approximately forty foot long driveway running along the east side of the School (the Driveway) that connects to Norris Street and leads to a parking lot to the south of the School (the Parking Lot). [Note 2] [Note 3]
4. The ROWis a parcelofland in Cambridge, Massachusetts known as Drummond Place that is used as a private right of way to and from several properties to public roads. It is shown on the 1892 Plan as running southeasterly one hundred forty feet from Norris Street (to which it is perpendicular), and abutting properties defined on the 1892 Plan as Lot 7 and Lot B (i.e., the western end of the LaCourt Property) on the east side thereof, and properties defined on the 1892 Plan as Lot 8 (the southern end of which forms part of the Casey Property) and Lot A on the west side thereof. On the 1892 Plan, Lot 7 (to the east) and Lot 8 (to the west) face each other, as do Lot B (to the east) and Lot A (to the west), and the four properties appear as mirror images across from each other, separated by the ROW. The 1892 Plan shows the ROW as ten feet in width in its one hundred foot section from Norris Street between Lots 7 and 8, widening to twenty feet in width for an additional forty feet between Lots B and A. [Note 4]
5. The LaCourt Property is located on the eastern side of the ROW, and the Casey Property (and several other residential neighbors) lie on the western side of the ROW.
6. The ROW represents the only source of access to and from public roadways to the Casey Property, whereas the LaCourt Property also has access to public roadways via the Driveway to Norris Street.
B. The Casey Property
7. By deed dated April 27, 1897 and recorded in the Middlesex South Registry of Deeds (the Registry) at Book 2555, Page 61 (the Libbey Deed), Reardon conveyed the property defined on the 1892 Plan as Lot 8 to Walter Libbey, together with:
the right to use in common with the other abutters thereon said passageway [the ROW], which passageway shall not be closed nor shall any building or structure of any kind be built upon or over the same except with the consent of all the abutters thereon, said passageway being ten feet (10) in width between lots 7 and 8 and twenty 20 feet in width between lots A and B on said plan, all as shown on said plan as a way or street for the use and benefit of the abutters thereon and to be used by said abutters for the purposes for which public ways and streets are now used or may hereafter be used, in said Cambridge including the laying therein of water, drain and sewer pipes.
8. By deed dated July 24, 1897 and recorded in the Registry at Book 2581, Page 342, Reardon conveyed the southern thirty-five feet of the property defined on the 1892 Plan as Lot 9 to Walter Libbeys wife, Mary L. Libbey. This deed does not specifically grant rights in the ROW. [Note 5]
9. By deed dated March 10, 1898 and recorded in the Registry at Book 2639, Page 461 (the Hall Deed), Walter and Mary L. Libbey conveyed to Charles F. Hall the southern thirty-five feet of Lots 8 and 9 -- thus creating the lot that is now the Casey Property. The Hall Deeds habendum clause specified that the property conveyed included the right [t]o have and to hold the granted premises, with all the privileges and appurtenances thereto belonging to the said Charles F. Hall and his heirs and assigns, to their own use and behoof forever. The Hall Deed further expressly provided that the Casey Property included a right of way in the whole of said passageway [i.e., the ROW] in common with others for all the purposes of a street, said passageway being ten (10) feet wide from said Norris Street to the southeasterly corner of the granted premises . . . . [Note 6]
10. Through mesne conveyances between 1898 and 1958, the Casey Property came to be owned by Mary C. Stechow, who conveyed the Casey Property to the Caseys by deed dated October 21, 1958 and recorded in the Registry at Book 9258, Page 83.
11. The Caseys conveyed the Casey Property to Robert by deed dated March 31, 2010 and recorded in the Registry at Book 55496, Page 22, which conveyed the Casey Property: With and subject to all rights in said passageway as stated in a deed from Mary L. Libbey et al to Charles F. Hall, recorded with Middlesex South District Deeds in Book 2639, Page 461.
C. The LaCourt Property
12. By deed dated June 24, 1897 and recorded in the Registry at Book 2572, Page 529, Reardon conveyed to the City of Cambridge (the City) the parcels defined on the 1892 Plan as Lots 3 through 7, plus Lot B and part of Lot 2 -- thus creating the LaCourt Property. This deed granted the LaCourt Property:
together with the right to use in common with other abutters thereon said passageway [the ROW], which passageway shall not be closed nor shall any buildings or structure of any kind be built upon or over the same . . . as a street or way for the use and benefit of all abutters thereon and to be used by said abutters for all the purposes for which public ways and streets are now used or may hereafter be used in . . . Cambridge, including the laying therein of water, drain, and sewer pipes.
In or around the year 1900, the School was built on the LaCourt Property; the School remained in operation as a public school from 1902 until 1955.
13. By deed dated June 3, 1957 and recorded in the Registry at Book 8975, Page 262, the City conveyed the LaCourt Property to the Roman Catholic Archdiocese of Boston (the Archdiocese). This deed did not expressly reference any rights in the ROW. The Archdiocese operated a private school on the LaCourt Property from 1957 until 2009.
14. Bydeed dated September 15, 2010 and recorded in the Registry at Book 55397, Page 563, the Archdiocese conveyed the LaCourt Property to Defendant. This deed did not expressly reference any rights in the ROW.
D. Plaintiffs and Their Residential Neighbors Use of the ROW
15. The Caseys and their residential neighbors have, at their sole cost, maintained the ROW since 1958. In or around 1968, the Caseys paid for the ROW to be paved; prior to that, the ROW was an unpaved gravel road.
16. Neither Defendant nor its predecessors in title has, at any time, contributed to the maintenance or upkeep of the ROW -- aside from installing a flood-light that illuminates the ROW from the LaCourt Property. It is unknown when this light was installed.
17. From approximately 1958 until August of 2012, the Caseys regularly parked their automobiles at various locations in the ROW.
18. At some point after the Caseys purchased the Casey Property in 1958, they formed an oral parking arrangement with their next-door neighbors to the south, the Sughrues, who resided at 2 Drummond Place -- i.e., the parcel defined in the 1872 Plan as Lot A. Under this arrangement, the Caseys and the Sughrues would park their respective automobiles in the area of the ROW located in front of their respective properties (i.e., 1 Drummond Place and 2 Drummond Place). [Note 7] Pursuant to this arrangement, the Caseys would park their car in front of the Casey Property (Parking Spot X) and the Sughrues would park their car either in front of Parking Spot X (i.e., in front of 2 Drummond Place) or behind it (i.e., closer to Norris Street), depending on when they arrived home. Because the ROW is not wide enough in front of the Casey Property for two automobiles to pass, the Caseys and Sughrues would communicate regularly to ensure that whichever person needed to leave earliest on the following morning would park their vehicle closer to Norris Street, so as to not be blocked in by the others vehicle. [Note 8]
19. In 2004, Paul Ayers (Ayers) purchased and moved into 2 Drummond Place, at or around which time he removed a large tree from the twenty foot wide portion of the ROW in front of 2 Drummond Place, which created enough space to enable two cars to be parked on the east side of the twenty foot wide portion of the ROW, next to the Fence. [Note 9] At or around that time, the Caseys and/or Ayers paved this portion of the ROW where the tree had been located, which previously had been unpaved. [Note 10] From 2004 until 2010, the Caseys and Ayers both parked primarily in this twenty foot portion of the ROW, with the Caseys parking in the front (i.e., northern) parking spot (Parking Spot A) and Ayers parking in the rear (i.e., southern) parking spot (Parking Spot B).
20. Robert testified that, from time to time, Ayers would park in Parking Spot A, and that, in such situations, the Caseys would park in Parking Spot X. Further, the Caseys continued to occasionally park in Parking Spot X, such as when they were unloading groceries, when it was late at night, or if they knew Ayers was not home. Robert also testified that, while his parents, the Caseys, parked exclusively on Drummond Place, he parked his own car on Norris Street, and parked on Drummond Place only when necessary, for street emergencies, snow emergencies . . . [, or] [f]amily parties.
21. Ayers moved out of 2 Drummond Place in or around 2010, but apparently still owns said property, which he rents out to tenants.
E. Defendants Fencing Around the LaCourt Property
22. At some point between 1957 and 1965 (Defendant alleges it was in 1961), the Archdiocese erected permanent wrought iron fencing around the majority of the LaCourt Property. This fence was approximately four feet high, and was continuous, with no openings. Upon its construction, this fence made it impossible to access the LaCourt Property via the ROW by vehicle or by foot. Defendant alleges that this fence was installed only because a fellow neighbor . . . requested that the school erect a fence to increase safety in the neighborhood.
23. At some point after this fence was installed, but before 1970, the Archdiocese replaced the wrought iron fence around the LaCourt Property with a higher chain-link fence with barbed wire along the top along most of the boundary lines of the LaCourt Property (the Fence). [Note 11]
24. The Fence started at the northwest corner of the School, from which point it ran westwardly approximately 3-4 feet to the western boundary of the LaCourt Property. From there, it turned 90° and ran southwardly along the entire western boundary of the LaCourt Property (where it abutted the ROW) to the southern boundary of the LaCourt Property. From there, it turned 90° and ran eastwardly along the entire southern boundary of the LaCourt Property to the eastern boundary of the LaCourt Property. From there, it turned 90° and ran northwardly along the eastern boundary of the LaCourt Property to a point level with the front (i.e., north) side of the School (which is set back from the frontage of the LaCourt Property on Norris Street). From that point, it turned 90° and ran westwardly (parallel to the northern boundary of the LaCourt Property and Norris Street) to the northeast corner of the School. This final section of the Fence crossed the Driveway, and where it did so, it featured what Defendant describes as a double-drive gate (i.e., a gate with two swinging parts that swing open to allow access) across the entrance of the Driveway (the Driveway Gate). [Note 12] Thus, the Fence entirely encircled the rear and sides of the School and the Parking Lot (and most of the Driveway), leaving open the front (i.e., north) side of the School, the frontage of the LaCourt Property on Norris Street, and the portion of the Driveway from the Driveway Gate to Norris Street. [Note 13]
25. The Fence, like the wrought iron fence it had replaced, made it impossible to access the LaCourt Property via the ROW. [Note 14] Aside from minor repairs, the Fence remained in the state in which it was erected until August of 2012.
26. In March of 2012, the City of Cambridge Planning Board (the Planning Board) granted Defendant a specialpermit to convert the School into a twenty-seven unit mixed-use building with twenty-five residential units and two commercial units. The findings of the Planning Board state that [t]he emergency access gates along Drummond Place will be sliding gates in order to allow continued access and use of the private way by neighbors. One of the conditions of Defendants permit to convert the School states that [the ROW] shall not be used by building occupants or users [of the LaCourt Property] for vehicular access or egress to or from the site. Only emergency vehicles shall be allowed to access the [LaCourt Property] via [the ROW]. [Note 15]
27. In connection with the conversion of the School to commercial and residential uses, several parking spaces on Norris Street (which had previously been reserved for busses) were re- opened to residential parking.
28. By letter dated August 9, 2012, Defendant notified Plaintiffs of its intent to install an emergency gate in a portion of the Fence that abuts the southern part of the ROW (next to Parking Spot A), and also instructed Plaintiffs to stop parking in the ROW, warning that any cars parked in the ROW would be towed.
29. On or about August 15, 2012, LaCourt installed this emergency gate, which required removing a section of the Fence abutting the twenty-foot-wide section of the ROW and replacing same with a six-foot-tall, eighteen-foot-wide, sliding wooden emergency gate (the Emergency Gate) to allow emergency vehicles to access the LaCourt Property via the ROW. [Note 16]
30. It is undisputed that (at least some) utilities lines servicing the LaCourt Property access same via the ROW.
Summary judgment is appropriate where there are no genuine issues of material fact in dispute, and where the record indicates that the moving party is entitled to the entry of judgment as a matter of law. E.g., Cassesso v. Commr of Correction, 390 Mass. 419 , 422 (1983); Commy Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); see also Mass. R. Civ. P. 56(c).
Plaintiffs seek, first, a declaratory judgment that Defendants easement rights in the ROW were abandoned by the Archdiocese. Second, Plaintiffs seek a declaratory judgment that they have the right to park on the ROW, whether based on the express language in the deed that created the ROW, because they have acquired an easement by implication to do so, or because they have acquired a prescriptive right to park on the ROW. I shall examine each of these arguments in turn.
A. Defendants Rights in the ROW
Plaintiffs argue that the Archdiocese abandoned its easement rights in the ROW when it constructed a fence that completely blocked access to the ROW from the LaCourt Property.
Mere disuse of an easement is insufficient evidence of abandonment; rather, an easement or interest in land may be deemed abandoned only if evidence shows an intention [by the dominant estate] never again to make use of the easement in question. N. Y. Cent. R.R. Co. v. Swenson, 224 Mass. 88 , 92 (1916). An intent to abandon an easement can be proved only by acts indicating an intent to relinquish the easement or a purpose inconsistent with its further existence. Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (quotations omitted); see also Tonello v. Pilotte, 21 LCR 77 , 85 (Mass. Land Ct. 2013); Parsons v. N. Y.C., New Haven & Hartford R.R. Co., 216 Mass. 269 , 272 (1913).
In numerous cases, the courts have found that the maintenance of a fence or barrier that obstructs an easement to constitute evidence of an intent to abandon the easement. E.g. Skipper Realty, LLC v. Jerrys Auto Serv., Inc., 84 Mass. App. Ct. 1104 , *1 (2013) (unpublished opinion) (finding abandonment of an easement where maintenance of a fence for approximately twelve years effectively prevented [owners] own use thereof); Lassell Coll. v. Leonard, 32 Mass. App. Ct. 383 , 391 (finding abandonment where owner maintained a fence blocking an easement for approximately twenty years and had an alternative means of access), rev. denied, 412 Mass. 1105 (1992); Lund v. Cox, 281 Mass. 484 , 492 (1933) (finding abandonment where easement blocked by a wall for at least twenty years, and disused for at least thirty-seven years).
In the case at bar, the record reflects that both the iron fence (which was erected, at latest, in 1961) and the Fence (which was erected, at latest, in 1969) continuouslyand completelyobstructed access to the ROW from the LaCourt Property from (at least) 1961 through 2010. [Note 17] Notably, such access was not only impeded by these fences, but presumably also regularly by vehicles parked in the Parking Lot, which, as demonstrated by photographs proffered by Plaintiffs, included parking spaces that would have blocked the ROW.
In opposition to this evidence, Defendant alleges that it installed an accordion gate on the Fence to allow access to the ROW from the LaCourt Property. However, as noted above, Defendants allegations as to the existence of this alleged accordion gate are not only inadmissible, they are vague and inconclusive as to when, if ever, it existed, and must therefore be disregarded. Thus, all Defendant can rely on to prove that this gate existed is affidavit testimony indicating that an accordion gate was removed from the Fence in 2012 (when it was replaced by the Emergency Gate). Yet, photographic evidence establishes that the gate was not present as of 2010. As such, Defendant, at best, can prove that such a gate existed only from 2010 to 2012.
Based upon these facts, it is apparent that the Archdiocese maintained fencing that prevented the LaCourt Property from accessing the ROW from at least 1961 until at least 2010 -- thus deliberately and completely obstructing its own use of the ROW for approximately fifty years. While the duration of conduct alleged to evidence abandonment of an easement is not determinative, it is relevant to note that, in Skipper Realty, the court found that a partys maintenance of a fence that prevented access to an easement for approximately twelve years (coupled with its acquiescence in abutters parking on the other side of said fence) did evidence abandonment. See Skipper Realty, 84 Mass. App. Ct. 1104 , at *1. Therefore, seeminglyidenticalconduct by Defendant and its predecessors in title for over four times that long would, a fortiori, seem to constitute abandonment. See also Lassell College, 32 Mass. App. Ct. 391 (fence maintained for approximatelytwentyyears); Lund, 281 Mass. at 492 (wall maintained for at least twenty years).
Turning to the Archdioceses intent behind installing the Fence, it is clear that -- by first installing permanent fencing obstructing the ROW, and later installing even higher fencing (with barbed wire), which connected to other fencing encircling the entire LaCourt Property -- the Archdiocese clearly and unambiguously made the election that securing the School from incursions from neighbors and ensuring that students could not freely leave the property was more important than maintaining access to the ROW -- which, because the LaCourt Property directly fronted on Norris Street, was not needed for access to public roads, especially after the Driveway was installed. Further, the Archdiocese made no objection to Plaintiffs and their neighbors parking on the ROW from at least 1958 through 2012. In sum, the Archdiocese not only impeded its own access to the ROW for, at least, nearly fifty years, it acquiesced to its neighbors use of the ROW in such a way as to obstruct the ROW for even longer. [Note 18]
After such state of affairs had been ongoing for approximately fifty years, the Archdiocese ceased operating the School on the LaCourt Property, and thereafter conveyed it to Defendant, who desired to convert it to other uses. By that point, however, it was already too late. Simply because the purposes for which the Fence was erected became no longer relevant, that mere fact does not mitigate the Archdioceses unambiguous indication of an intent to abandon all rights to use the ROW for access.
In sum, I find that the LaCourt Propertys appurtenant right to use the ROW for access has been extinguished through abandonment. I further find that the LaCourt Property retains only its appurtenant right to the use of the ROW solely for purposes of maintaining utilities lines that do not impede access via the ROW.
B. Plaintiffs Rights in the ROW
1. Plaintiffs Deeded Rights in the ROW
The scope of an expressly deeded easement is based upon the grantors intent, determined from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (Mass. App. Ct. 2005).
Here, to determine the grantor of the ROWs intent, we must turn to the Libbey Deed, which, as noted above, conveyed the right [t]o have and to hold the granted premises, with all the privileges and appurtenances thereto belonging to the said Charles F. Halland his heirs and assigns, to their own use and behoof forever. It also specifically established the use of the ROW for the Casey Property for the purposes for which public ways and streets are now used or may hereafter be used, in said Cambridge including the laying therein of water, drain and sewer pipes. Plaintiffs argue that this language is expansive, and, as such, establishes a right to use the ROW for parking -- particularly since the deed refers to future (as well as past) uses of public streets in the City.
Defendant acknowledges this broad grant, but points out that this expansive language is not present in later deeds, and argues that the Hall Deed (which created the Casey Property) should be seen as limiting Plaintiffs use of the ROW, insofar as it provided only a right of way in the whole of [the ROW] in common with others for all purposes of a street. [Note 19]
This argument is unavailing because, pursuant to G.L. c. 183 § 15,[i]n a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically. See also Beals v. Inhabitants of Brookline, 245 Mass. 20 , 24 (1923); RESTATEMENT OF PROPERTY, § 483, Cmt. d. (1944) (So far as language is capable of performing the function for which it was chosen, it is the primary source for the ascertainment of the meaning of a conveyance.). [Note 20] Here, not only is the Hall Deed devoid of language specifically limiting the use of the ROW, its habendum clause specifically incorporates the easement rights granted by the Libbey Deed, thus evincing an unambiguous intent to convey the Casey Property together with the same rights as were conveyed pursuant to the Libbey Deed. In sum, the minor semantic differences cited by Defendant between the description of the ROW in the Hall Deed and its description in the Libbey Deed simply do not evidence an intent to limit the right to use the ROW. Thus, the Hall Deed conveyed the same appurtenant rights in the ROW as were created by the Libbey Deed.
Having so found, it is necessary to determine if those rights specifically include a right to park. Here, Defendant argues that Plaintiffs do not have a right to park on the ROW because an easement providing a right to pass and repass does not normally imply a right to park. Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 375 (Mass. App. Ct. 1997). However, this court has previously found that where (as in the case at bar) the language granting an easement did not incorporate the words the right to pass and repass . . . that construction of the language of the easements should not be so limited. BDS Realty, LLC v. Broutsas, 11 LCR 94 , 94 at *3-4 (Mass. Land Ct. 2003). Harrington and BDS Realty, when read together, entail that, on the one hand, if the granting document specifically limits the use of an easement to passing and repassing, there is (typically) no right to park; however, on the other hand, if the granting document does not specifically limit the use of the easement to passing and repassing, no such limitation will be read into the easement, which therefore may include a right to park.
Here, as noted above (and acknowledged by Defendant), the Libbey Deed created extremely broad rights to use the ROW for the purposes for which public ways and streets are now used or may hereafter be used, in said Cambridge including the laying therein of water, drain and sewer pipes. Such language clearly does not purport to limit the right to use the ROW to a mere right to pass and repass; rather, the scope of the right is limited only by the laws of the City of Cambridge. [Note 21]
Defendant attempts to distinguish BDS Realty on the basis that, in that case, this court noted that parking was allowed on public streets in the City of Tauton at the time that the easements were created. Defendant is correct only insofar as there is no evidence in the record as to whether vehicle parking on public roads in Cambridge was permitted in 1898. Rather than adducing evidence on this point, Defendant states only that it presumes that in 1898 most streets were horse paths and that automobile parking was not allowed on them, but it has produced no evidence that this was the case. Contra Eustis v. Milton St. Ry. Co., 183 Mass. 586 , 588 (1903) (The primitive modes of locomotion along highways have largely given place to new vehicles for horses, and to electric cars, bicycles, and automobiles.).
In any event, whether parking was allowed in 1898 is entirely irrelevant to the question of whether it is allowed today because, as noted above, the Libbey Deed contained forward-thinking language that permitted the use of the ROW to evolve as needed over time. Therefore, because parking is today permitted on Cambridge streets, I find that the Casey Propertys appurtenant right to use the ROW now includes the right to park thereupon, so long as such parking leaves at least ten feet of clearance for other vehicles to pass. [Note 22] See CITY OF CAMBRIDGE TRAFFIC, PARKING, AND TRANSPORTATION REGULATIONS, § 14.1(b)(9) (2013).
As discussed above, most of the ROW is only ten feet in width. Over that area, therefore, parked cars would not provide sufficient clearance for other vehicles to pass. As such, no party with a right to use the ROW for access has a right to park on the ten foot wide section of the ROW. However, where the ROW expands to twenty feet in width, there is ample space for vehicles (less than ten feet in width) to park while still providing space for other vehicles to pass. [Note 23] As noted above, I have already found that Defendants right to use the ROW for access has been extinguished by abandonment, so the issue (raised by Defendant) that parking in the twenty foot wide section of the ROW obstructs Defendants access to the ROW is moot. [Note 24]
As a last-ditch argument, Defendant argues that the Libbey Deed should not be read as including a right to park on the ROW because implied easement rights should be found only where such purposes are reasonably necessary for the full enjoyment of the premise to which the right of way is appurtenant. See Young v. Ordung, 16 LCR 492 (Mass. Land Ct. 2008); Tehan v. Sec. Natl Bank of Springfield, 340 Mass. 176 , 182 (1959); Harrington, 14 LCR 456 .
The evidence submitted by Plaintiffs probably does not support a finding that parking on the ROW is reasonably necessary to Plaintiffs full enjoyment of the Casey Property. Not only have the Caseys parked on Norris Street in the past, but also Roberts usual parking spot is on Norris Street. Moreover, as noted by Defendant, in connection with the conversion of the School to commercial and residential uses, several parking spaces on Norris Street (which had previously been reserved for busses) were re-opened to residential parking -- thus suggesting that there may be ample parking nearby. Therefore, although it is more convenient, it is not necessary that Plaintiffs park in the ROW for the full use and enjoyment of the Casey Property.
However, whether or not the right to park on the ROW is reasonably necessary to the full use and enjoyment of the Casey Property is entirely irrelevant because the appurtenant right to park in the ROW that I have found above to exist does so by operation of the forward-looking Libbey Deed -- not by implication. The deeded rights simply are what they are, irrespective of what is reasonably necessary to the enjoyment of the Casey Property. And, as I have found, pursuant to the forward- looking language of the Libbey Deed, such rights now include certain limited parking rights.
2. Plaintiffs Right to Park in the ROW by Prescription or Implication
Having determined that Defendant has no right to use the ROW for access, and that Plaintiffs do have a limited right to use Parking Spots A and B for parking, it is not necessary (in order to resolve the dispute between the parties to this case) to determine whether Plaintiffs have obtained prescriptive or implied easement rights to use the ROW for parking. Even if it were presently necessary to answer this question -- the resolution of which, in view of the courts above findings, now has no impact upon Defendant whatsoever -- Plaintiffs have not named all the necessary parties who would be required for the court to issue a determination of whether Plaintiffs have implied or prescriptive rights to use the ROW for parking in such a way that would impede other residential abutters access across the ROW, because such a determination, in effect, would also bear on said abutters own rights in the ROW.
Accordingly, I find that -- to the extent that Plaintiffs seek a declaratory judgment that they have obtained parking rights in any portion of the ROW by prescription or implication -- this action is defective for failure to name all necessary parties. That portion of the complaint must therefore be dismissed, without prejudice to asserting such claims in a future action in which all necessary parties are named and noticed.
In conclusion, the rulings of the court are as follows:
(a) The LaCourt Propertys appurtenant right to use the ROW for access has been extinguished through abandonment; the LaCourt Property retains only its appurtenant right to the use of the ROW solely for purposes of maintaining utilities lines that do not impede access via the ROW; and,
(c) Because parking is today permitted on Cambridge streets, the Casey Propertys appurtenant right to use the ROW now includes the right to park thereupon, so long as such parking leaves at least ten feet of clearance for other vehicles to pass; and,
(c) To the extent that Plaintiffs seek a declaratory judgment that they have obtained parking rights in any portion of the ROW by prescription or implication, this action is defective for failure to name all necessary parties.
In view of the foregoing, Defendants motion for summary judgment is hereby DENIED. Plaintiffs cross-motion for summary judgment is hereby ALLOWED IN PART, solely to the extent specified herein. Plaintiffs request for a declaratory judgment that Plaintiffs have parking rights in any portion of the ROW by prescription or implication is hereby DISMISSED, without prejudice.
Judgment to enter accordingly.
[Note 1] Plaintiff Robert Casey (Robert) is the son of Plaintiffs Francis Casey and Helen Casey (together, the Caseys).
[Note 2] The frontage of the LaCourt Property on Norris Street takes up the majority of the northern edge of the LaCourt Property. The Driveway connects to Norris Street at the northeast corner of the LaCourt Property and runs along its eastern edge back to the Parking Lot at the rear, which takes up the southern portion of the LaCourt Property. The School comes to approximately three to four feet from the western boundary of the LaCourt Property, on the other side of which is the ROW.
[Note 3] The parties have adduced no evidence as to when the School, Driveway, and Parking Lot were originally constructed.
[Note 4] Nothing in the record indicates anything as to the past or present ownership of the land representing the ROW. Presumably, said land became subsumed into the titles of the abutting properties by operation of law upon the enactment of the Derelict Fee Statute, G.L. c. 183, § 58. Since no evidence on this point has been proffered by the parties, and because it is not necessary to make a finding as to the present ownership of the ROW in order to reach the merits of this case, the court declines to do so.
[Note 5] Nothing in the record indicates whether a right to use the ROW is found in the prior chain of title to Lot 9.
[Note 6] As noted, nothing before the court indicates whether the prior chain of title to Lot 9 sets forth any right to use the ROW for the benefit of Lot 9. In the absence of any such right, there could be an issue as to whether the Casey Property is overburdening the ROW. The parties have not raised this issue, so the court declines to rule on it.
[Note 7] During this period, a large tree existed in the twenty-foot-wide section of the ROW in front of 2 Drummond Place, which prevented automobiles from parking or passing through that area of the ROW.
[Note 8] There is no evidence in the record as to how long this arrangement between the Caseys and the Sughrues lasted. It is unknown when the Sughrues obtained title to 2 Drummond Street, nor when they and the Caseys formed their arrangement. The Sughrues sold 2 Drummond Street to Mary T. Reed by deed dated February 11, 1987 and recorded in the Registry at Book 17858, Page 315, but nothing in the record indicates whether the Sughrues continued to live at 2 Drummond place thereafter. Title to 2 Drummond Place later came to be owned by Paul Ayers (discussed below) by deed from the administrator of Mary T. Reeds will dated June 3, 2004 and recorded in the Registry at Book 42971, Page 29. The court has taken judicial notice of these deeds. See Fitzpatrick v. Yeaman, 07 MISC 340811, 16 LCR 601 , 602, n.4 (Mass. Land Ct. Sept. 4, 2008) (courts may take judicial notice of recorded deeds).
[Note 9] Pursuant to Section 14.1(b)(9) of the City of Cambridge Traffic, Parking, and Transportation Regulations, unless otherwise prohibited, parking is permitted on the sides of public ways in the City, provided that at least ten feet is left free for vehicular traffic.
[Note 10] The Caseys provided conflicting testimony as to who paid for the removal of this tree and the paving of this area of the ROW. This detail, however, is not material to the courts determination below.
[Note 11] The parties appear to disagree about the height of the Fence, but this detail is immaterial.
[Note 12] In Defendants motion for summary judgment, Defendants counsel and principal both mistake the location of the Driveway Gate as having been located adjacent to the ROW. However the work order for the Driveway Gate (submitted by Defendant as Exhibit 3 to its motion) clearly states that it was installed along left [as one faces the School from Norris Street] side [i.e., eastern] property line and left front [i.e., northeast corner] of school -- that is, near the opposite corner of the LaCourt Property from where it abuts the ROW. Plaintiffs note this mistake in their cross-motion for summary judgment; Defendant -- in its opposition to Plaintiffs cross-motion -- acknowledges its mistake as to the location of the Driveway Gate.
[Note 13] The Driveway allowed access to the Parking Lot and the rear of the LaCourt Property. Presumably, the Driveway Gate across the Driveway would remain open during hours of operation, and would otherwise remain closed. The front of the School (which contained the Schools main entrance) was not bounded by the Fence. Students would access the School through this front entrance, and school busses would park on Norris Street in front of the School.
[Note 14] Defendant claims that, at some point, an accordion gate was installed in the area of the Fence abutting the southern portion of the ROW, which allegedly allowed emergency access to and from the Parking Lot via the ROW. This alleged accordion gate was not referenced by Defendant in its answer, and the first reference to it appears to be in Defendants memorandum of law in opposition to Plaintiffs injunctive motion -- which, as an unsworn statement by Defendants counsel (who lacks personal knowledge of the relevant facts), is of no evidentiary value. See Mass. R. Evid. §§ 602, 801(c).
Even if the alleged accordion gate ever existed, nothing in the record establishes when it was installed. Rather, the onlydirect testamentaryevidence offered by Defendant as to this alleged gate pertains to its removal in 2012. However, photographic evidence establishes that it was not present as of 2010. Thus, at best, the accordion gate existed only from 2010 to 2012.
Defendant also references another access gate in the Fence at the northwest corner of the LaCourt Property, which allegedly allow[ed] . . . access to Drummond Place, as is required by the fire and safety code. Photographic evidence, however, demonstrates that this gate -- while adjacent to the ROW -- allowed access from an emergency exit from the basement of the School (located in the three to four foot strip of land between the School and the Fence) and opened onto the frontage of the LaCourt Property on Norris Street.
[Note 15] It is worth noting, as an aside, that, due to the extreme narrowness of the ROW, the usefulness of the ROW as a means of egress and ingress for emergency vehicles (which typically are very wide) is questionable.
[Note 16] Although it does not bear on this decision, it is relevant to note that, at some point subsequent to 2012, the Fence appears to have been removed from the area of the LaCourt Propertys western edge alongside the School. Presumably, then, the Fence today stops at the southwest (rather than northwest) corner of the School.
[Note 17] This is conclusively established by the following evidence adduced by Plaintiffs: (a) color photos submitted by Defendant to the Planning Board depicting the Fence in 2001, (b) color photos taken by the Citys Assessing Department depicting the Fence in 2010, (c) color photos of the Fence taken by Plaintiffs at various points in time over the past three decades, and (d) the affidavit testimony of Robert and the Caseys that the Fence (and the previous wrought iron fence) completely blocked access between the LaCourt Property and the ROW since 1958.
As discussed above, Defendants only opposition to this evidence is its unsworn (and otherwise unsupported) allegation (by Defendants attorney, in a memorandum of law) that an accordion gate allowed access from the LaCourt Property to the ROW. That allegation is of no probative value. See Mass. R. Evid. §§ 602, 801(c).
[Note 18] Notably, there is no allegation by Defendant that the Archdiocese ever objected to persons parking on the ROW prior to the construction of the wrought iron fence in or around 1961, prior to which point it would actually have been possible for persons to use the ROW to access the LaCourt Property due to the absence of fencing.
[Note 19] Specifically, Defendant contends that the rights given in the Libbey Deed are limited by the Hall Deed through the four changes to the wording of the easement. First, Defendant argues that the Hall Deed placed a scope limitation on Plaintiffs (and their predecessors in titles) right to use the ROW by narrowly describing such right as a right of way, rather than as a more general right to use the ROW. Second, Defendant argues that the Hall Deed placed a geographical limitation on Plaintiffs (and their predecessors in titles) right to use the ROW by generally describing the ROW as akin to a street, rather than to a street in [ ] Cambridge. Third, Defendant argues that the Hall Deed further limited the scope of Plaintiffs (and their predecessors in titles) right to use the ROW by describing same as akin to a street, rather than to a public way[ ] and street[ ]. Fourth, and finally, Defendant argues that the Hall Deed placed a temporal limit upon the scope of Plaintiffs (and their predecessors in titles) right to use the ROW by omitting the forward-looking may hereafter be used language of the Libbey Deed.
[Note 20] Defendants arguments fail for other reasons as well. First, by supposedly limiting the scope of the right to use the ROW to the uses of a street in general, rather than a street in said Cambridge, the Hall Deed could, in fact, be read to actually expand the possible uses of the ROW, because this new language would appear to incorporate street uses not only in Cambridge, but also every other city in the state, let alone the country or world.
In addition, Defendant has not provided adequate support for its assertion that the rights to use a public way would differ substantively from the rights to use a street.
[Note 21] It should be noted that, while the Libbey Deed stated that the ROW shall not be closed nor shall any buildings or structure of any kind be built upon or over the same, it does not prohibit parking.
[Note 22] It should be noted that this appurtenant right remains subject to the such rights as may also run to the benefit of other residential properties abutting the ROW. The parties have not adduced any evidence as to who such parties might be, so the court makes no formal finding as to who (if anyone) currently enjoys such rights. It suffices to say that Plaintiffs right to use the ROW for parking does not trump that of any other party with a right to also do so.
[Note 23] Parking Space A and Parking Space B would seem to be the most appropriate place where parking would be permitted but, in theory, it would seem that (parallel) parking anywhere in the twenty foot wide section of the ROW would still permit other vehicles to pass.
[Note 24] It is likewise unnecessary to consider Defendants argument that Plaintiffs use of the ROW for parking shifted when they began using Parking Spot A in or around 2004, since that would be relevant only to the question of whether Plaintiffs acquired prescriptive rights to park in the ROW. As discussed, infra, the court declines to answer that question.