ANARPET REALTY CORP. v. STUTZ MOTOR CAR COMPANY, INC.; STUTZ PLAISTED, Individually; STUTZ PLAISTED as TRUSTEE of STUTZ REALTY TRUST; LEONARD E. SPENCE and VIRGINIA A. SPENCE, as TRUSTEES of GREEN LEDGE REALTY TRUST; LEONARD E. SPENCE and VIRGINIA A. SPENCE, as TRUSTEES of 305 HIGHLAND AVENUE SALEM REALTY TRUST; PLAISTED PROPERTIES, LLC; and HOMETOWN AUTO FRAMINGHAM, INC.

I. INTRODUCTION

This court entered judgment in this action July 2, 2014. That judgment then was reviewed on appeal in the Appeals Court. On October 26, 2015, the Appeals Court, in a memorandum and order pursuant to its Rule 1:28, affirmed the judgment, except only for so much of it as held that, as a matter of law, plaintiff Anarpet lacked standing to obtain judgment on the plaintiff Anarpet’s allegations that defendants had overloaded and overburdened one of the rights of way at issue in this long-running easement dispute, that referred to as the 12 foot right-of-way.

The Appeals Court remanded this action to this court for limited further proceedings. This court was directed to consider the merits of Anarpet’s claims of overloading and overburdening of the 12 foot right-of-way. No other proceedings were authorized or directed by the Appeals Court; it left unaltered the remainder of the judgment this court had entered. Rescript issued November 23, 2015. Anarpet Realty Corp. v. Stutz Motor Car Co., Inc., 88 Mass. App. Ct. 1110 (2015)(No. 14-P-1386).

On remand, this court takes up the question whether, in light of all the evidence properly before the court, the plaintiff, Anarpet Realty Corp. (“Anarpet”), has demonstrated that the use of the 12 foot right-of-way by defendants Stutz Motor Car Company (“Stutz Motor Car”), Stutz Plaisted, individually and as trustee of Stutz Realty Trust (“Stutz Plaisted”), Plaisted Properties, LLC (Plaisted LLC”), and Hometown Auto Framingham, Inc. (“Hometown”), overloads and overburdens the 12 foot right-of-way. [Note 1] As explained in this decision, in considering this one open issue, the court keeps its focus on the rights Anarpet holds as fee owner of the only lot it owns with an appurtenant right to use the 12 foot right-of-way--Anarpet’s lot 567H.

After rescript, this court held a hearing on December 29, 2015, at which the parties agreed that no further evidence was required for the court to resolve the question of overburdening and overloading of the 12 foot right-of-way. Counsel received full opportunity to brief the relevant legal issues this court was directed to consider on remand. They put forward their contentions in their joint report, which they filed December 23, 2015, pursuant to this court’s December 7, 2015 order; at the hearing on December 29, 2015; and in their supplemental post-remand legal memoranda. Having received and reviewed the parties’ briefs, and reflected on all of the admissible evidence, the court now renders its findings of facts and rulings of law on the limited issues encompassed by the remand from the Appeals Court.

II. PROCEDURAL POSTURE AND PRIOR LEGAL AND FACTUAL DETERMINATIONS

The factual background and procedural history of this case are recounted, first, in the court’s order dated October 12, 2010, which granted the defendants’ motion for partial summary judgment and denied plaintiff’s motion for partial summary judgment. Additional background appears in the court’s post-trial decision, dated July 2, 2014, which directed entry of the judgment. Elaborate repetition in this decision following remand is not required.

As this court’s post-trial decision made clear, at trial “Anarpet presented to this court claims both that defendants lacked easement rights to use the 12 foot right-of-way (overloading), and, alternatively, that the use of the way, even if authorized to some degree, was unreasonable and excessive (overburdening).” Following remand, the parties, by their counsel, agreed that when they tried the case, Anarpet’s claims of overloading and overburdening of the 12 foot right-of- way were in place, and that the parties were able to–and did–put on evidence concerning these claims of the plaintiff. While the court determined, in the decision issued after trial, that Anarpet’s lack of a fee in the 12 foot right-of-way deprived Anarpet of standing to challenge use of the 12 foot right-of-way by the defendants–a conclusion set aside by the Appeals Court–there is no doubt that the case was tried by all on the understanding that Anarpet’s claims challenging the defendants’ use of the 12 foot right-of-way to serve lots other than 589 (which benefits from an express easement) were very much before the court.

The factual findings made in the court’s trial decision stand as made; nothing has come to the court’s attention requiring their alteration, and the court relies upon them in issuing this decision. A number of the findings this court made in its trial decision have significance for the resolution of the claims (now before the court on remand) of overburdening and overloading of the 12 foot right-of-way, including:

(1) Anarpet, under certificate of title number 47686, dated March 23, 1978, is the owner of lot 567H located to the north of, and partially abutting, the 12 foot right- of-way as shown on Land Court Plan 11802-2 (dated July 23, 1951). (2) The owners of lots 567H, 567K, 587, 589 and 652 each have an easement for passage on foot and by vehicle over the 12 foot right-of-way. However, neither the owners of lot 567H (Anarpet) nor the owners of lot 589 (Stutz Plaisted, now Plaisted LLC) have any fee title in and to the 12 foot right-of-way. (3) As discussed in detail, below, there is no testimony or other evidence credited by the court that lot 567H has suffered any interference with its easement rights over the 12 foot right-of-way as a result of traffic on that way coming or going from one or more of the car dealerships.

In addition to the remanded questions, which concern Anarpet’s easement rights in the 12 foot right-of-way, at trial this court heard and decided Anarpet’s claims of overburdening and overloading of Green Ledge Street. Anarpet, as owner of lot 661, owns the fee in a portion of Green Ledge Street. None of the judgment as to the use of Green Ledge Street was disturbed by the memorandum and order of the Appeals Court. Of relevance to the remand now before the court, in its 2014 decision this court found that vehicles do not overload the easement over Green Ledge Street when vehicles (which are entitled to access and use lot 660) cross lot 660, owned by one of the defendants, to access lot 589, also owned by a defendant, or when vehicles (which are entitled to access and use lot 589) cross lot 589 to access lot 660 and then access Green Ledge Street. This result was affirmed by the Appeals Court.

While this case was on appeal in the Appeals Court, the Supreme Judicial Court issued its opinion in Hickey v. Pathways Ass’n, Inc., 472 Mass. 735 (2015). The decision in Hickey dealt with a wide range of legal issues. One in particular was of significance to the issues now remanded to this court. In its July 2, 2014 trial decision, this court ruled that Anarpet lacked standing to proceed with its claims that the defendants’ use of the 12 foot right-of-way was without legal right, and so amounted to overloading. [Note 2] The question whether someone who holds an easement to use a right of way (in common with other easement holders), may sue third parties, who lack easement rights, to stop their use of the right of way, was an open one prior to the Supreme Judicial Court’s decision in Hickey. While an easement holder may have been able to obtain judicial relief to stop use of the right of way by one doing so without any easement rights-- if the plaintiff could show resulting impairment of the plaintiff’s easement rights--there was no clear decisional law which let one of several easement holders bring suit against an unauthorized user of the right of way, if the plaintiff could not show some impairment of the plaintiff’s use of the right of way. That ability to sue to stop a trespass onto the right of way by an unauthorized party was of course available to the owner of a fee in the right of way. But until Hickey, it was not clear that one of several easement holders could bring the same cause of action as could the fee owner. [Note 3]

In Hickey, the court held that an easement holder has “an interest in preventing use of the way by those without rights of access...,” even if the easement holder does not own the fee in any portion of the way. Id. at 753. The Hickey court announced this principle of law without citation or further elaboration. In the Appeals Court’s October 26, 2015 memorandum and order, the court, relying on Hickey, decided that Anarpet was not prevented from suing the defendants for unauthorized use of the 12 foot right-of-way simply because Anarpet was only the holder of a shared right of easement, and had no fee title to the 12 foot right-of-way. “Even without a fee in the way, the plaintiffs, as easement holders, have an interest in preventing use of the way by those without rights of access.” Anarpet Realty Corp. v. Stutz Motor Car Co., Inc., 88 Mass. App. Ct. 1110 (2015), quoting Hickey v. Pathways Ass’n, Inc., 472 Mass. 735 , 753 (2015). The remand to this court rests on this legal principle. Plaintiff filed with the Appeals Court a petition for rehearing on October 29, 2015, which the Appeals Court denied on November 4, 2015. The rescript issued on November 23, 2015, and was filed with this court on November 25, 2015.

This court then issued an order on December 7, 2015. The order directed the parties to file a comprehensive written joint report concerning the matters which the Appeals Court instructed this court to address on remand, including steps this court ought to take to bring the case to final adjudication. The court ordered the parties to attend a hearing on December 29, 2015.

The parties filed the joint report, and the court held the hearing on December 29, 2015. At the hearing, all counsel agreed that this court required no further evidence to resolve the question of overburdening and overloading of the 12 foot right-of-way. Additionally, all counsel agreed there was no need to file formal dispositive motions under Mass. R. Civ. P. 56 and Land Court Rule 4 for this court to carry out the remand. The court ordered plaintiff and the defendants to file and serve supplemental legal memoranda, which they have submitted. I now decide the case as returned to me by the panel of the Appeals Court.

III. FINDINGS OF FACTS

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or other otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the submissions of the parties, including the joint report of the parties pursuant to the order of the court dated December 7, 2015 and the parties’ supplemental post remand legal memoranda, I make the following factual findings and rule as follows:

1. Anarpet brings its claims–that the defendants have overloaded and overburdened the 12 foot right-of-way--solely as the owner of lot 567H.

2. Lots 567H, 567K, 587, 589 and 652 have express easements, in common with others, to use the 12 foot right-of-way.

3. The 12 foot right-of-way begins at the public street, Highland Avenue, and emanates perpendicularly from Highland Avenue, running in a roughly easterly direction until it reaches lot 653, where the way ends. Lots 567H and 567K abut the 12 foot right-of-way on the north side. Lots 587, 589, and 652 abut the 12 foot right-of-way on the south side.

4. Lot 587 is a somewhat rectangular lot bounded on its northerly side by the 12 foot right-of-way.

5. Lot 567K is a long tapering triangular lot with its base along the easterly side of Highland Avenue and abutting, on the south side line of lot 567K, the northerly line of the 12 foot right-of-way. Lot 567K is bounded by the 12 foot right-of-way from Highland Avenue to a point which lies a little more than half way down the length of the 12 foot right-of-way. Lot 567K is bounded on its northerly side by Anarpet’s lot 567H.

6. Where lot 567K, lot 567H and the 12 foot right-of-way come together (a little more than halfway down the 12 foot right-of-way), lot 567H has its only frontage on the 12 foot right- of-way, for a short length of thirteen feet. This frontage on the 12 foot right-of-way is the only place where lot 567H communicates with the disputed right of way. The remaining frontage of lot 567H is along Highland Avenue, and measures 75 feet. Of the total 350 foot southerly side line of lot 567H (referred to as lot 567H’s “southeasterly” boundary in the Anarpet certificate of title), 337.88 feet run not along the 12 foot right-of-way, but along lot 567K.

7. The thirteen foot stretch of Lot 567H's southerly boundary (the “13 feet”), which is the only part of the lot that abuts the 12 foot right-of-way, is located all the way to the rear of Lot 567H, when viewed from its natural orientation facing onto Highland Avenue--where lot 567H has its effective street access.

8. Lot 567H is a rectangular lot bounded roughly on the west (“northwesterly” in the certificate) by Highland Avenue a distance of 75 feet, and bounded roughly southerly (“southeasterly” in the certificate) by lot 567K and the thirteen foot rear frontage on the 12 foot right-of-way.

9. Plaisted LLC’s lot 589 is a rectangular lot that is abutted to the east by lot 587, and which is bounded on the north by the 12 foot right-of-way. The boundary between lots 587 and lot 589 begins approximately halfway down the 12 foot right-of-way, just east of where Anarpet’s lot 567H has its thirteen foot run along the right of way. Abutting Lot 589 to the south is lot 660.

10. Lot 652 abuts lot 589, lot 653, lot 659, and the 12 foot right-of-way.

11. All of the land just described has had its title registered and confirmed by this court, and the relevant certificates of title and plans of registered land are on file at this court's Essex (South District) Land Registration District.

12. A hardware home improvement store and or lumber yard known as One Way Lumber occupies Anarpet's lot 567H.

13. Relying on the evidence which I credit, I find that lot 567H has a barrier or gate across the 13 feet, preventing all passage in this area between lot 567H and the 12 foot right-of-way. Lot 567H uses only Highland Avenue for passage by vehicle and otherwise onto and off of lot 567H. That passage takes place directly to and from Highland Avenue, and does not use in any way the 12 foot right-of-way. This has been so for many years, going back several decades. The operation by One Way Lumber on lot 567H has functioned without any impairment or adverse effects using Highland Avenue as the only means of ingress to and egress from lot 567H.

14. The Stutz Plaisted defendants had been operating a car dealership since the early 1970's, which occupied lots 589 and 660 (as well as lots 575, 563A, 564, 565, 566, which abut Green Ledge Street, and lots 561 and 562, which abut DiPietro Avenue). Hometown leases land from the Stutz Plaisted defendants [Note 4] and operates an active Mazda dealership. Lot 660 is improved with and used by the large service center for the car dealership. Lot 589 has had on it a small building used in the past by Stutz Plaisted for body work and storage, with the remainder of the lot vacant and used for some parking and as a rear access point for vehicles heading to lot 660, abutting to the south. The defendants paved the eastern portions of lots 589 and lot 660 ("the U-Turn"), which defendants (and others associated with the defendants) at times use to access the 12 foot right-of-way from Green Ledge Street, or to access Green Ledge Street from the 12 foot right-of-way.

15. David Wescott and his brother operate the Instant Alarm Company on lot 587. The triangular lot 567K, which lies across the 12 foot right-of-way from the alarm company, is vacant of any substantial buildings, but contains parking spaces used by employees of and visitors to the Instant Alarm Company. Mr. Wescott testified during trial that he was unhappy with trucks on the 12 foot right-of-way, vehicles that he associated with the auto dealership.

16. There is no evidence which I credit that One Way Lumber has complained of interference with easement rights in and to the 12 foot right-of-way. Additionally, there is no evidence to which I accord weight that One Way Lumber has complained of adverse effects the defendants' use of the 12 foot right-of-way have had on One Way’s use and enjoyment of lot 567H. Nor is there any evidence I find persuasive that Anarpet or One Way Lumber in fact have suffered any material ill effects from any use made of the 12 foot right-of-way by the defendants,

17. Defendants' use of the 12 foot right-of-way has been for vehicular passage and, on occasion, for parking. That driving and parking of vehicles has at times blocked briefly the movement of other vehicles on the 12 foot right-of-way, including in the area where the 13 feet lie at the rear of plaintiff’s lot 567H. However, there is no evidence which I find satisfying that defendants' use of and parking on the 12 foot right of way has adversely affected Anarpet's use of lot 567H, or use of that land by One Way Lumber for its business. Also, there is no evidence I find worthy of adoption that the trucks and other vehicles which traverse the 12 foot right-of-way are so noisy as to interfere with Anarpet or One Way Lumber's enjoyment of lot 567H. There is no credible evidence that the speed or volume of vehicles operated by the defendants on the 12 foot right-of-way interferes with Anarpet or One Way Lumber's use of the 12 foot right-of-way. In general, I find that neither Anarpet nor One Way Lumber makes any real use of the 12 foot right-of-way. There is no reason why they would. The actual access to lot 567H is entirely over the Highland Avenue frontage, and is more than adequate for the One Way Lumber use. Anarpet runs a child care facility on its other parcel, lot 661, which has ample access using Green Ledge Street, and there is no good reason why vehicles would need to travel to and from the two lots Anarpet owns, given their greatly different uses.

18. Trucks, including car carriers, occasionally use the 12 foot right-of-way. However, there is no evidence that use of, and occasional brief parking on, the 12 foot right-of-way by trucks associated with the defendants has amounted to a possessory use of the 12 foot right-of-way. Those uses are transitory and not greatly burdensome. There is no evidence I credit demonstrating that trucks, including car carriers, need to be restricted from using the 12 foot right-of-way because of the size of the way, the turn radii of trucks, or fire lane restrictions.

19. There is no evidence persuasive to me that the use of trucks on the 12 foot right-of-way is in any meaningful way inconsistent with the plaintiff’s easement rights in that right of way which are appurtenant to lot 567H.

IV. DISCUSSION

In its memorandum and order remanding this case to this court the Appeals Court panel, relying on the Hickey decision, concluded that Anarpet does not necessarily lack standing to assert its claims against the defendants as to their use of the 12 foot right-of-way simply because Anarpet does not own a fee in any portion of the 12 foot right-of-way. The case returned to this court so I could consider whether Anarpet, if not lacking standing to assert its claims as to the 12 foot right-of-way, has proved those claims, as to which it carries the burden of proof by a preponderance of the evidence. In weighing the evidence and resolving these claims, I act understanding that they arise only from Anarpet’s status as the owner of lot 567H and, in particular, as the holder of easement rights to use the 12 foot right-of-way which are appurtenant to lot 567H.

Based on the facts I have found after trial, and taking into account the parties’ post- remand written submissions and argument of counsel, I find and rule that Anarpet has not carried its burden and has not proved its claims of overburdening of the 12 foot right-of-way by the defendants. As a factual matter, Anarpet’s easement rights appurtenant to lot 567H are in no manner adversely affected by the defendants’ use of the 12 foot right-of-way.

On the question of overloading, however, I conclude that Anarpet, given the standing it possesses as a nonexclusive easement holder to challenge use of the 12 foot right-of-way, even in the absence of any demonstration of injury to Anarpet’s easement rights, is entitled to a judgment declaring that the parcels of the various Plaisted defendants which front on Green Ledge Street have no easement right to use the 12 foot right-of-way.

A. Standing as an Easement Holder to Assert Claims Regarding Defendants’ Use of 12 Foot Right-of-Way

Anarpet argues that its right to challenge the use of the 12 foot right-of-way is not dependent on any showing of harm, impact, or damage to Anarpet’s lot 567H and to its appurtenant right to use the 12 foot right-of-way. The court now understands that Massachusetts law has developed to afford nonexclusive easement holders without ownership of a fee in the way an “interest” in preventing use of the way by those without rights of access. Hickey v. Pathways Ass’n, Inc., 472 Mass. 735 , 753 (2015). As the Appeals Court panel directed, I accept that, in light of Hickey, plaintiff may be heard on its challenge to the use by the defendants of the 12 foot right-of-way. Nothing in the facts in Hickey demonstrates that the standing of those plaintiffs to challenge passage by the defendants depended on any showing of harm to the plaintiffs as easement holders. The Hickey court appears to take as given that one easement holder has standing to challenge passage by others, without the need to assert and prove that the challenged use adversely affects the plaintiffs’ enjoyment of their easement. I am constrained to conclude that, after Hickey, an easement holder’s right to sue to stop unauthorized use of a way is similar in scope to the right of the fee owner of the way. If Anarpet were a fee owner, Anarpet would have automatic standing to challenge the rights of others to use the 12 foot right-of-way, without any need to demonstrate harm resulting from the unauthorized use. I decide that, if correct in its assertion that the defendants’ parcels fronting on Green Ledge lack any easement right to use the 12 foot right-of-way, Anarpet is entitled to judgment to that effect.

B. Overloading and Overburdening the Easement

1. Overloading

Anarpet argues that lots 561, 562, 563A, 564, 565, 566, and 660 lack easement rights to the 12 foot right-of-way, and therefore, the defendants’ use overloads the 12 foot right-of-way. I decide that Anarpet is correct.

I do not reach this conclusion based on one of Anarpet’s primary grounds–that the defendants, collectively, are irretrievably bound by admissions made early in the life of this case, which Anarpet says constitute defendants’ relinquishment of all rights to use the 12 foot right-of- way. Anarpet asserts that defendants admitted that these lots in question do not have easement rights over the 12 foot right-of-way, and that these admissions are binding upon the Plaisted defendants and upon Hometown. I do not find these admissions to have the broad conclusive effect for which Anarpet advocates.

It is true that a party is bound by allegations or admissions of fact, or of mixed matters of fact and law, in the pleadings. Piscatelli v. Fitzgerald, 2013 Mass. App. Div. 55 , 57 fn. 4 (2013). Whether a party enjoys easement rights is a question of law for the court. Boivin v. Beckman, 17 LCR 698 , 699 (2009) (Misc. Case No. 09 MISC 406920) (Trombly, J.). Whether an easement is overloaded (on the theory applicable in this case) is a question of law. Cox v. Considine Dev. Co., LLC, 21 LCR 172 , 180 (2013) (Misc. Case No. 12 MISC 458355) (Sands, J.). The defendants may have admitted that these lots do not have express registered easement rights over the 12 foot right-of-way. However, I do not interpret the defendants as admitting that there is no legal right, whether emblazoned on the record or not, appurtenant to any of defendants’ parcels to use the 12 foot right-of-way. I determine that the admissions were not intended to admit the absence of those easement rights which might exist without formal notation in the registered land documents.

I turn to the merits of the overloading claim which are back before the court on remand. Under current and long-standing Massachusetts precedent, a party cannot use a right of way appurtenant to a specified lot to access another parcel that party owns, but to which the right of way is not appurtenant. Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 677 (1965); Brassard v. Flynn, 352 Mass. 185 , 190 (1967); Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 318-319 & n. 12 (2005).

None of the lots of the defendants with frontage on Green Ledge Street has any express record rights to use the 12 foot right-of-way. If these lots (and the contention really has its focus on lot 660) are to have any rights to use the 12 foot right-of-way, those rights must derive from something other than an express grant or reservation of easement memorialized in the record. The rights cannot have arisen by use. All of the land here (including the 12 foot right-of-way) has had a registered title for more than eight decades, and prescriptive rights are unavailable. G.L. c. 185, §53.

The defendants argue that lot 660 has rights to use the 12 foot right-of-way based on the conveyance of lots according to plans showing that way, and that the court must recognize those rights. This is the doctrine which has been at the center of this litigation all along. In recognizing this principle in the order the court entered on summary judgment, and in applying that principle in the 2014 trial decision, I accepted that, on an appropriate record, a court may discern and establish rights to use ways shown on plans depicting adjoining registered land parcels. I have decided that rights of this nature are not unavailable simply because the land involved has a registered title. That determination was upheld by the Appeals Court when it reviewed the judgment entered in this case. The Supreme Judicial Court’s Hickey decision establishes that the presence of a registered land title does not prevent judicial recognition of easement rights over ways shown on registered land plans, in appropriate cases where the essential title facts needed to do so are sufficiently discoverable within the registered land records. It was in reliance on this doctrine that I, in my initial decision, established the rights of defendants to use Green Ledge Street as owners of parcels that were, when conveyed out, shown on the court’s plans as lying alongside Green Ledge Street.

The defendants’ rights to use the 12 foot right-of-way to serve their parcels fronting on Green Ledge Street, however, cannot be recognized by the court based on the same doctrine, because the history of conveyancing of those lots is different. While the record established that various of the defendants’ lots were conveyed out with descriptions and references to plans showing that those lots were situated on Green Ledge Street, that is not true with respect to the 12 foot right-of-way. Defendants concede that none of their lots (other than 589) are located along the 12 foot right-of-way. They also appear to concede that it is only as to lot 660 that they have any argument that rights of passage arose based on the conveyance of land according to plans showing the 12 foot right-of-way. But defendants’ contention as to lot 660 misses the mark.

Lot 660 does not have frontage on the 12 foot right-of-way. It never has. The history of the creation and conveyancing of lots 589 and 660 is laid out in the trial decision, and I incorporate those findings and that analysis here. In summary, lot 589 first was shown on the 11802-15 plan in 1960, and first was conveyed by the Pelletiers to the Haights. That plan depicts the full length of the 12 foot right-of-way in its current length and configuration. The initial shorter run of the 12 foot right-of-way appears on the 11802-2 plan in 1951, and is shown in its current longer version on the11802-7 plan in 1953 and the 11802-9 plan in 1957, just as it is on the 11802-15 plan. When lot 660 gets shown on a plan (11802-26, in 1966), lot 660 has no frontage on–indeed, no connection at all–to the 12 foot right-of-way. No deed (and no plan referenced in a deed) links lot 660 to the 12 foot right-of-way. Lot 660, since its creation, has been separated from the 12 foot right-of-way by lot 589. Both lots 660 and lot 589 were granted, in their first deeds out, by the Pelletiers to the Haights. Lot 660 and lot 589 were undoubtedly placed in common ownership when the lot 660 deed was registered in 1966.

But this is insufficient to establish that lot 660, as opposed to lot 589, has any rights to use the 12 foot right-of-way. The doctrine which allows rights of passage to arise to use ways shown on a plan used to make conveyance, requires that the conveyance of the lot depict or describe the lot as lying along the way. That has never been the case for lot 660. By the time it was conveyed as a separate lot in 1966, lot 660 was not described or depicted as having any frontage on the 12 foot right-of-way. The record shows that the Pelletier family owned the entire parcel out of which lot 660 eventually emerged, lot 567 on the 11802-D plan, the large tract of land lying north and west of Green Ledge Street. The Pelletiers acquired their title to lot 567 on the 11802-D plan in June of 1935. They retained title to that tract, carving out various parcels and selling them off over the years. But in the many years between the time the Pelletiers took their deed, and the time they sold lot 660 to the Haights in 1966, nothing in the record shows that the Pelletiers conveyed the land which in that year became lot 660 by reference to a plan or other record description that showed the lot 660 land as lying along the 12 foot right-of-way. The only finding I can make is that the land now lot 660 never has been conveyed according to any deed or plan showing that it faced upon the 12 foot right-of-way; the only way that land has adjoined is Green Ledge Street, over which lot 660 has clear rights.

In arguing that lot 660 ought have rights to use the 12 foot right-of-way, defendants rely on a conclusion reached in the trial decision confirming the ability of lot 589 to take advantage of rights to use Green Ledge Street. There I decided that, because both lots 589 and 660 were part of a larger parcel fronting on Green Ledge Street when that way first was established, and because that larger parcel had been conveyed according to a plan showing that the parcel fronted on Green Ledge Street, both lots had rights to use Green Ledge Street--notwithstanding the later division of that large parcel into smaller parcels, including lot 589 and lot 660. I determined that the larger parcel, lot 567 on the 11802-D plan of 1928, was, in effect, the dominant estate as to rights to use Green Ledge Street, starting when lot 567 was conveyed into separate ownership with a deed from Griswold to the Ximinesses in 1930. From that point forward, the easement rights to use Green Ledge Street subsisted in lot 567, and in each of the lots which emerged from it as it was divided over the years. For this reason, use of Green Ledge Street was available to both lot 660, which has frontage on Green Ledge Street, and to lot 589, which does not.

But that conclusion is not, as defendants urge, a two-way street (so to speak). The record does not show that what is now lot 660 ever was part of a lot that was conveyed to a third party by reference to a plan showing the conveyed parcel as fronting on the 12 foot right-of-way. The 12 foot right-of-way may have been added to the registered land plans at a time when what is now lot 660 was part of a larger parcel, which then gained frontage on the 12 foot right-of-way. But putting in a new right of way on the ground does not give rise to inferred rights to use the way. Nor does simply depicting that new right of way on a recorded plan. The doctrine requires, for rights to arise, the conveyance of a lot to a third party with a description (including by use of a plan) showing that the conveyed lot lies along the way owned by the grantor. The defendants, who carry the burden of proving their claimed inferential easement in favor of lot 660 to use the 12 foot right-of-way, have not carried that burden. I conclude that lot 660 does not possess appurtenant rights to pass over the 12 foot right-of-way.

I also reject defendants’ alternative argument. They contend that, because the lots the defendants own possess rights to use Green Ledge Street, and so may use it to gain access to lot 660, vehicles which originate on lot 660 (as well as on the other defendant lots fronting on Green Ledge Street) may pass not only onto lot 589, which defendants own and which abuts lot 660, but then may proceed beyond lot 589 to transit the 12 foot right-of-way. Defendants argue that once a vehicle reaches lot 589, no matter how the vehicle got there, it may continue out onto and over the 12 foot right-of-way. Defendants also make the same argument in reverse: that vehicles which travel to lot 589 over the 12 foot right-of-way are then at liberty to cross from lot 589 onto lot 660, and from there may use Green Ledge Street to reach their ultimate destination.

This theory advanced by the defendant is that somehow passing onto a lot with frontage on a way (and rights to use that way), “cleanses” vehicles which then immediately leave that lot, crossing over to the adjoining lot in common ownership. Defendants contend that this maneuver permits those vehicles to continue their journey over the second lot of the defendants, and onto the way on the opposite side from where they entered the defendants’ property. I do not find this theory to be legally viable. A vehicle cannot drive over a way to reach, at the end of its travel, a lot without rights to use that way. That vehicle is simply passing over the lot which has rights to use the way as part of a longer drive, intended to reach another lot, a lot which lacks those rights. Doing this is not permitted. To say otherwise would allow land not having rights to use a way to go ahead and use it. Where, in one continuous drive, the ultimate destination of the vehicle is a lot without rights to use a given way, a vehicle may not use that way.

In saying all this, I recognize that the long-standing Massachusetts doctrine prohibiting “after-acquired” property from enjoying the benefit of an easement which is appurtenant to other adjoining land in common ownership is now under scrutiny by our appellate courts. An appeal pending in the Supreme Judicial Court, Taylor v. Vineyard Land Bank Comm’n, SJC-11963, puts this rule up for possible refinement. I am obliged to decide the case before me according to settled law as it now is. I will direct the entry of a judgment declaring that use of the 12 foot right-of- way to serve any lot of the defendants other than lot 589 constitutes overloading of the easement. In light of the pendency of the Taylor appeal, however, the judgment will preserve the rights of the parties to bring another action should the rule under consideration in Taylor, as it emerges from the Supreme Judicial Court, give the parties different rights than I determine they have today. [Note 5]

2. Overburdening

As just discussed, Anarpet is to have judgment in its favor on its overloading claims--that the use of the 12 foot right-of-way to serve defendant lots fronting on Green Ledge Street constitutes an overloading of the easement rights defendants do hold in the 12 foot righ-of-way, which are appurtenant only to their lot 589. Beyond that, there is the claim of overburdening. Anarpet seeks judgment that the defendants’ use of the 12 foot right-of-way has constituted an overburdening of the easement, contending that the use the defendants make of the 12 foot right- of-way is unreasonable and excessive in light of the scope of rights they possess.

To challenge defendants’ use, Anarpet, as an easement holder, needs to demonstrate that defendants’ use adversely affects in an actionable way the easement rights Anarpet enjoys as owner of lot 567H. Anarpet must have proved by a preponderance of the evidence that defendants’ use of the 12 foot right-of-way interferes with lot 567H’s use of the easement. See Kubic v. Audette, 18 LCR 486 , 488 (2010) (Misc. Case No. 07 MISC 351427) (Cutler, J.). The court evaluates a party’s use of an easement over a way based on reasonableness. Western Mass. Electric Co. v. Sambo’s of Mass., 8 Mass. App. Ct. 815 , 825 (1979). “The obligation between those who hold separate or common easements over the same land is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders.” Cannata v. Berkshire Natural Resources Council, 73 Mass. App. Ct. 789 , 797 (2009), citing Restatement (Third) of Property (Servitudes) § 4.12 comment b, at 626-27.

First, the provisions of the judgment which I will order be entered on the overloading claim will have the effect of limiting greatly the defendants’ use of the 12 foot right-of-way. As I have determined the question of overloading on remand, the defendants are not permitted to use the 12 foot right-of-way for continuous travel to and from their lots fronting on Green Ledge Street. This means that the occasions when a vehicle which is associated with the defendants drives on the 12 foot right-of-way ought to be limited to instances when the origin or destination of those vehicles is lot 589. Lot 589 is the only land of the defendants which has the right to use the 12 foot right-of-way.

I have considered the Anarpet claim of overburdening based on evidence of use of the 12 foot right-of-way arising from vehicles traveling to and from all of the defendants’ lot. Even with this broader use, I have found, based on the evidence I consider credible and persuasive, that the impact of that use, in the aggregate, does not amount to overburdening. I have found that defendants’ passage over, and occasional temporary stopping on, the 12 foot right-of-way does not adversely affect Anarpet’s rights as a holder of a nonexclusive easement appurtenant to lot 567H. Anarpet presented no evidence I choose to adopt that One Way Lumber uses, or has any need to use, the 12 foot right-of-way to access lot 567H. In fact, there is a barrier which blocks ingress to and egress from lot 567H over the 12 foot right-of-way at the 13 feet, the only point where lot 567H has any connection to the way. Vehicles coming to and from lot 567H do so using Highland Avenue directly.

I have rejected Anarpet’s contentions that trucks traversing the 12 foot right-of-way create an actionable volume of noise, and that trucks make use of the way on an actionably frequent and excessive basis. Annoyance on the part of Anarpet is not sufficient for it to prevail on an overburdening claim, at least not unless what is taking place amounts to unreasonable use. Hodgkins v. Bianchini, 3 Mass. 169 , 173 (1948). There is no evidence that demonstrates to me that the noise or level of traffic of the trucks is either unreasonable, or adversely affects the uses underway on lot 567H. Anarpet also presses the point that vehicles traverse the 12 foot right-of- way with too much speed. However, again, there is no evidence that I find convincing that this is so–certainly not to the degree that would adversely affect lot 567H and its rights in the way.

Anarpet argues that trucks, including car carriers, should be prohibited outright from using the 12 foot right-of-way, due to the size of the way, the turn radii of the trucks, or fire lane restrictions. While the ruling I have made concerning the overloading question may make this concern far less pronounced, I address it to guide the parties in their future use and development of these parcels. For the judgment to order the discontinuance, or reduction in the the frequency, of trucks using way, there would need to be interference, which would amount to a nuisance or to actual obstruction of plaintiff’s use of the right-of-way. Michaelson v. Nemetz, 4 Mass. App. Ct. 806 , 807 (1976). Trucks themselves are not an impermissible use of the way, as long as their use is consistent with the physical condition of the way itself, taking into account such factors as the surface, configuration, and size of the way. Swensen v. Marino, 306 Mass. 582 , 586-587 (1940). I find that the twelve feet here is a wide enough lane to accommodate occasional truck transit, finding instructive the testimony of professional engineer Stephen Robert Garvin. The right-of- way also is paved, adding to its adequacy for truck use. Additionally, the locus is commercially or business zoned, and several lots of the Plaisted defendants have been used as part of a car dealership since the 1970's.

The evidence proves to me that trucks or other vehicles simply traversing the 12 foot right-of-way might only block passage if another vehicle were trying to drive down the 12 foot right-of-way in the opposite direction. There is no evidence that this ever has occurred. The evidence also suggests that, while parking on the 12 foot right-of-way might temporarily block access, no evidence I accept demonstrates that passage along the 12 foot right-of-way is blocked by parked vehicles regularly, or, indeed, with any frequency at all. In any event, nothing shows me that any such interruption of the ability to drive on the 12 foot right-of-way would have any effect on the easement rights Anarpet holds as owner of lot 567H.

I have made findings and rulings on the overburdening issue based on the conditions in existence at the time this case was tried to me. I decide that there is no basis to enter any orders against the defendants based on Anarpet’s claim that they have overburdened the 12 foot right-of- way. If, in the future, Anarpet, One Way Lumber or other owners or occupants of lot 567H use the 12 foot right-of-way materially differently than what was presented at trial, and are able on substantially different evidence to show adverse effects on the enjoyment of lot 567H’s easement rights, the result reached in this case would not prevent a later action to vindicate those rights.

Judgment accordingly.