PETER R. TEARE v. THOMAS B. STOCKWELL, JR. and CRYSTAL L. STOCKWELL.

Peter R. Teare and Thomas and Crystal Stockwell live across from each other on a private way in Uxbridge known as Kristen Lane. They have come before me to try the dispute between them over their respective rights to use, or not use, Kristen Lane. As set forth below, after trial, I find that Mr. Teare does have an easement to use the half of Kristen Lane that is incorporated into the Stockwells’ lot, that the Stockwells have interfered with Mr. Teare’s easement by placing telephone poles and concrete blocks in the easement, but that the Stockwells’ fence does not, at this time, interfere with Mr. Teare’s use of Kristen Lane.

Procedural History

Peter R. Teare (Teare) filed his complaint on August 11, 2014 (Complaint), naming as defendants, Thomas B. Stockwell, Jr. and Crystal L. Stockwell (the Stockwells). The Complaint has three counts: Count I is for interference with an easement, Count II is for the overburdening of the easement, and Count III is for nuisance. Teare filed his Motion for Summary Judgment on February 2, 2015. The Stockwells filed their Answer and Counterclaim of Thomas B. Stockwell, Jr. and Crystal L. Stockwell (Counterclaim) on February 3, 2015. The Counterclaim has two counts: Count I is for trespass and Count II is for overburdening of an easement. Teare filed his Reply to the Counterclaim on February 11, 2015. The Stockwells filed their Opposition on March 6, 2015, and Teare filed his Reply on March 13, 2015.

A hearing on Teare’s Motion for Summary Judgment was held on March 17, 2015, at which the court denied the motion without prejudice on the grounds that material facts were in dispute and ordered the case set down for trial. A view was taken on May 14, 2015, and trial was held on the same day. At trial, the court heard testimony from Byron Andrews, Peter Teare, Thomas Stockwell, and Crystal Stockwell. Exhibits 1 through 24 were marked with a joint statement of agreed facts. The Stockwells filed their Post-Trial Briefs on June 25, 2015, and Teare filed Plaintiff’s Post-Trial Request for Findings of Facts and Rulings of Law on June 29, 2015. Closing arguments were heard on June 29, 2015, and the case was taken under advisement. This decision follows.

Findings of Fact

Based on the facts stipulated by the parties, the view, the exhibits, and the testimony at trial, including my assessment as trier of fact of the credibility of the witnesses, I make the following findings of fact:

1. Teare resides at 189 Kristen Lane, Uxbridge, Massachusetts (the Teare Property). Ex. 1- Statement of Agreed Facts for Trial. The Teare Property is shown on the plans attached as Exhibits A and C.

2. The Stockwells reside at 310 West Hartford Avenue, Uxbridge, Massachusetts (the Stockwell Property). Ex. 1. The Stockwell Property is shown on the plans attached as Exhibits A and B.

3. The Teare Property is located directly across from the Stockwell Property. Ex. 1.

4. Quarry Hills Estates, Inc. prepared a plan titled “Plan of land in Uxbridge, Mass. Owned by Quarry Hills Estates, Inc.” dated November 3, 1987, and recorded on April 8, 1988, in the Worcester District Registry of Deeds (the Registry), Plan Book 596 as Plan 96 (the 1987 ANR Plan). Endorsed as approval not required (ANR) under the Subdivision Control Law, the 1987 ANR plan depicts seven house lots with frontage on West Hartford Avenue in Uxbridge, and an unnamed way between lots 12 and 13, from West Hartford Avenue to the north to the southern bounds of the two lots. Ex. 1; Ex. 2- 1987 ANR Plan.

5. A subdivision plan titled “Definitive Plan of Quarry Hill Estates in Uxbridge, Mass., owned by Quarry Hill Inc.” dated September 22, 1987, and revised December 18, 1987, was approved by the Uxbridge Planning Board on March 14, 1988 (the Definitive Plan”). The Definitive Plan was recorded in the Registry on April 8, 1988, Plan Book 596, as Plan 97. Ex. 1; Ex. 3- Definitive Plan. A copy of the Definitive Plan, with the current Teare and Stockwell Properties outlined, is attached as Exhibit A.

6. Kristen Lane was laid out as a private way off West Hartford Avenue, a public way in Uxbridge, with a fifty foot right-of-way on the Definitive Plan. Kristen Lane, as laid out in the Definitive Plan, connects to the unnamed way on the 1987 ANR Plan to the north, runs south, continues east, and then runs northeast, returning to West Hartford Avenue where it ends. Ex. 1; Ex. 3.

7. In 1991, Quarry Hill Estates, Inc. conveyed most of the lots shown on the western portion of the 1987 ANR Plan and the Definitive Plan to Nicholas Siragusa as Trustee of the Siragusa Realty Trust (Siragusa Realty Trust) by a deed dated June 25, 1991, and recorded in the Registry on August 13, 1991, Book 13580, Page 65. The conveyance included the seven lots with frontage on West Hartford Avenue (lots 7-13 in the 1987 ANR Plan), ten lots with frontage on Kristen Lane (lots 1, 2, 5, 6, 34, 35, 36, 37, 38, and 39), one lot with frontage on Kelley Way, and three small parcels (parcels A, B, and C) located near the line between the western portion of the subdivision which was conveyed to Siragusa Realty Trust and the eastern portion retained by Quarry Hill Estates. Ex. 1; Ex. 6; see Ex. 3 and printout.

8. The deed from Quarry Hill Estates, Inc. to Siragusa Realty Trust conveyed the lots “[t]ogether with that portion of the fee interest in Kristen Lane which is shown on [the Definitive Plan] which is located to West of a line established by extending the westerly line of Parcel B fifty two and thirty-nine hundredths (52.39) feet along a course of N 04 06' 40' E. as shown on a Plan of Land entitled 'Plan to show Land For Temporary Cul-de-Sac's in Uxbridge, Mass. For Quarry Hill Estates, Inc[']. . . . filed with said Deeds in Plan Book 651, Plan 17” (the Temporary Cul- de-Sac Plan). Ex. 1; Ex. 6; see Ex. 3 and printout. The deed from Quarry Hill Estates, Inc. to Siragusa Realty Trust conveyed the lots “[t]ogether with the right to use Kristen Lane for purposes of access and the further right to install utilities for its entire length in all directions as shown on said plan in common with others legally entitled thereto . . . [t]ogether with the further right of the grantee to connect any utilities or drainage lines that are installed in Kristen Lane that are located to the east of the division line . . .” Ex. 1; Ex. 6. The deed from Quarry Hill Estates, Inc. to Siragusa Realty Trust further specifies that the “grantor reserves the right to use Kristen Lane for purposes of access and the further right to install utilities for its entire length in all directions as shown on said plan in common with others legally entitled thereto . . .” and reserves “the further right of the grantor to connect to any utilities or drainage lines that are installed in Kristen Lane to the west of the division line . . .” Ex. 1; Ex. 6; see Ex. 3 and printout.

9. In 1996, the area shown as Lot 1 on the Definitive Plan, along with a twenty-five foot by six- hundred-foot parcel of land between Lot 1 and West Hartford Avenue, together forming a pork chop lot, was depicted as Lot 1R on a plan titled “Plan of Land in Uxbridge, Mass.” dated October 11, 1996, and recorded in the Registry on December 9, 1996, Plan Book 711, Plan 42 (the 1996 ANR Plan). The twenty-five foot by six-hundred-foot parcel of land between Lot 1 and West Hartford Avenue, which was part of Kristen Lane, is denoted on the 1996 ANR Plan as a “roadway easement.” Lot 1R is the Stockwell Property. Ex. 1; Ex. 9. A copy of the 1996 ANR Plan is attached as Exhibit B.

10. The Siragusa Realty Trust (by its trustee, Nicholas A. Valorie) conveyed Lot 1R on the 1996 ANR Plan, the Stockwell Property, to Blackstone Valley Homes, Corp. by a deed dated December 7, 1996, and recorded in the Registry on January 8, 1997, Book 18530, Page 232. The deed conveyed the lot “[r]eserving to the grantor for the benefit of his remaining land a 25 foot wide roadway easement as shown on [the 1996 ANR Plan] for all purposes that streets and ways may be used in the Town of Uxbridge . . . [and] a 25 foot wide temporary slope easement as shown on said plan.” Ex. 1; Ex. 11; see Ex. 9.

11. Siragusa Realty Trust conveyed Lots 10 and 11 as shown on the 1987 ANR Plan, Lots 2, 37, 38, 39 as shown on the Definitive Plan, and Parcels A, B, and C at the edge of Siragusa Realty Trust's property to Blackstone Valley Homes, Corp. by a deed dated January 6, 1997, and recorded in the Registry on January 8, 1997, Book 18530, Page 242. Lots 2, 37, 38, and 39 make up the majority of the lots owned by Teare, including the Teare Property. The deed from Siragusa Realty Trust to Blackstone Valley Homes, Corp. conveyed all these lots, other than Lots 10 and 11 which abut the public way, “[t]ogether with that remaining portion of the fee interest in Kristen Lane which is shown on [the Definitive Plan] which is located to West of a line . . . as shown on [the Temporary Cul-de-Sac Plan],” “[t]ogether with and subject to rights of way, easements and restrictions as recited in Deed of Quarry Hill Estates, Inc. to Nicholas Siragusa, Trustee of Siragusa Realty Trust . . .”, “[r]eserving to the grantor for the benefit of his remaining land the right to use Kristen Lane as streets and ways are commonly used in the Town of Uxbridge.” Ex. 1; Ex. 14; see Ex. 3 and printout.

12. Blackstone Valley Homes, Corp., granted a mortgage on Lots 2, 37, 38, 39 as shown on the Definitive Plan and Lot 10 as shown on the 1987 ANR Plan, to Norwood Co-operative Bank, “together with the fee in Kristen Lane as shown on the [Definitive Plan] . . . subject to and together with the rights, easements, restrictions and reservations set forth in the deed from Nicholas D. Valorie, Trustee of Siragusa Realty Trust to this mortgagor . . .” The mortgage was dated on January 6, 1997, and recorded at the Registry at Book 18530, Page 245, on January 8, 1997. Ex. 1; Ex. 15.

13. In 1997, Lot 39 as shown on the Definitive Plan and Lots 10 and 11 as shown on the 1987 ANR Plan were reconfigured as shown on a survey plan titled “Plan of Land in Uxbridge, Mass. prepared for Blackstone Valley Homes Corp.” dated May 22, 1997, and recorded on June 18, 1997, in the Registry Plan Book 716 as Plan 92 (the 1997 ANR Plan). The 1997 ANR Plan created Lot 10R, a snakelike lot which included Lot 10 on the 1987 ANR Plan with frontage on West Hartford Avenue and a portion of Lot 39 on the Definitive Plan with frontage on Kristen Lane. Ex. 1; Ex. 16.

14. Blackstone Valley Homes, Corp. then gave a mortgage on Lot 10R, half of which now makes up the Teare Property, to Norwood Co-operative Bank, “subject to the right of way as shown on [the 1997 ANR Plan] . . . [and] subject to and together with the rights, easements, restrictions and reservations set forth in the deed from Nicholas D. Valorie, Trustee of Siragusa Realty Trust [to Blackstone Valley Homes, Corp.] . . .” The mortgage was dated June 26, 1997, and recorded on July 18, 1997, at the registry at Book 19007, Page 234. Ex. 1; Ex. 17.

15. In 1998, Blackstone Valley Homes, Corp. conveyed Lot 1R, the Stockwell Property, to Matthew T. Hebert and Jennifer L. Hebert by a deed dated May 18, 1998, and recorded at the registry at Book 20025, Page 375, on June 3, 1998. The deed from Blackstone Valley Homes, Corp. to the Heberts conveyed Lot 1R, “subject to the right to use Kristen Lane as laid out and shown on [the Definitive Plan], . . . subject to the slope easement shown on the above mentioned plan and shown on [the 1987 ANR Plan] . . . [and] subject to a roadway easement to the grantor and/or successors to pass and repass and make improvements in the road . . . over the portion of land identified as roadway easement on [the 1996 ANR Plan].” Ex. 1; Ex. 12; see Ex. 9.

16. In 1999, Norwood Co-operative Bank foreclosed on Lot 10R, and Peter R. Teare acquired Lot 10R by a foreclosure deed dated January 14, 1999, and recorded on January 19, 1999, in the Registry, Book 20934, Page 33. At the time Mr. Teare's residence was constructed on Lot 10R, Lot 10R had frontage on West Hartford Avenue. Ex. 1; Ex. 17.

17. Norwood Co-operative Bank also foreclosed on the mortgage on Lots 2, 37, and 38, and subsequently conveyed those lots to Peter R. Teare by a deed dated April 29, 1999, and recorded in the Registry on April 30, 1999, Book 21336, Page 232. The deed conveyed the lots “together with the fee in Kristen Lane shown on the [Definitive Plan] . . . subject to and together with the rights, easements, restrictions and reservations set forth in the deed from Nicholas D. Valorie, Trustee of Siragusa Realty Trust to this mortgagor . . .” Ex. 1; Ex. 20; see Ex. 3.

18. In 2002, Matthew T. Hebert and Jennifer L. Hebert conveyed Lot 1R to Thomas B. Stockwell, Jr. and Crystal Stockwell by a deed dated March 27, 2002, and recorded in the Registry on March 29, 2002, Book 26278, Page 300. The deed from the Heberts to the Stockwells conveyed Lot 1R “subject to the right to use Kristen lane as laid out and shown on [the Definitive Plan] . . . subject to the slope easement shown on the above mentioned plan and shown on [the 1987 ANR Plan] . . . [and] subject to a roadway easement to the grantor and/or successors to pass and repass over the portion of land identified as roadway easement on [the 1996 ANR Plan].” Ex. 1; Ex. 13; see Ex. 9.

19. In 2003, Lot 10R was reconfigured to create Parcel A with frontage on West Hartford Avenue and Lot 10R-1 with frontage on Kristen Lane, as shown on a plan titled “Division of Land in Uxbridge, Massachusetts 266 Hartford Avenue West”, dated April 14, 2003, and recorded in the Registry on August 26, 2003, Plan Book 799, Plan 20 (the 2003 ANR Plan). Lot 10R-1 is the Teare Property. Ex. 1; Ex. 22. A copy of the 2003 ANR Plan is attached as Exhibit C.

20. Peter R. Teare conveyed Parcel A to Peter Lavallee and Dolores J. Lavallee by a deed dated August 22, 2003, and recorded on August 26, 2003, in the Registry, Book 31379, Page 25. Teare retained Lot 10R-1. Ex. 1; Ex. 23; see Ex. 22.

21. Portions of the 25 feet of Kristen Lane on the Stockwells' side of the lane, the western half of the lane (or the area labeled as “roadway easement” in the 1996 ANR Plan), have been improved by both parties with gravel from West Hartford Avenue to the southern extent of the Stockwell Property. More specifically, Teare provided $4,400 worth of reprocessed asphalt, $10,000 worth of gravel, and stone dust from him own property to improve Kristen Lane. The Stockwells maintain the lane by washing out the lane every spring and laying asphalt, and both parties plow the lane. Plaintiff's Facts ¶ 33; Defendant's Response to Plaintiff's Facts ¶ 33; See Trial Transcript p. 36-38, 63-66.

22. Teare uses the improved portion of Kristen Lane on the Stockwells' side because it is improved and because Teare's side of the lane, the eastern 25 feet, has two large outcroppings of ledge that would be costly to remove. See Trial Transcript p. 40.

23. The Stockwells placed concrete blocks at the intersection of Kristen Lane and West Hartford Avenue, at the entrance of Kristen Lane. See Trial Transcript p. 29; View. The concrete blocks were placed there for the purpose of preventing survey markers from being destroyed. Trial Transcript p. 76.

24. Teare alleges the concrete blocks prevent cars from passing each other and are hard to see by drivers of taller vehicles. See Trial Transcript p. 41. Teare alleges that it would be impossible for tractor-trailers to turn into Kristen Lane with the cement blocks at the entrance of the lane because of how hard it is for smaller vehicles to make the turn; tractor-trailers accessing the Stockwell Property for construction previously parked on West Hartford Avenue, at the entrance of Kristen Lane where the concrete blocks are, and did not enter Kristen Lane. See Trial Transcript p. 57-58, 102-103; View. I find the concrete blocks so narrow the entrance to Kristen Lane from West Hartford Avenue that it is difficult for trucks to enter or cars to pass side by side.

25. Teare places his trash barrels at the entrance of Kristen Lane because his trash company is unable to reach his property with the trash truck. Trial Transcript p. 60. The Stockwells' trash company still retrieves their trash from their property and is able to make it into Kristen Lane by backing down the lane. Trial Transcript p. 70, 88.

26. The Stockwells have laid large wooden poles horizontally along the entire width of their side of Kristen Lane, or within the area labeled as “roadway easement” in the 1996 ANR Plan, between the widest part of their fenced area and the ledge on the Teare's side of the lane (the easterly 25 feet of the lane). Ex. 19; View. The purpose of the poles is to prevent vehicles from traveling up and down Kristen Lane at high speeds. Trial Transcript p. 76-77. Only all-terrain vehicles are able to drive over the poles; cars, sedans, and trucks are unable to drive over the poles. Because of the poles, one has to drive off the area marked Kristen Lane into Lot 10R-1, the Teare Property, to access Lot 2. Trial Transcript p. 49-50, 93.

27. The Stockwells have constructed a fence that extends into their side of Kristen Lane, or within the area labeled as “roadway easement” in the 1996 ANR Plan. The fence, at its southern-most portion encroaches on the portion of the Stockwells' side of Kristen Lane labeled “roadway easement” by approximately 17 feet, leaving eight feet of right of way to the center line, but does not interfere with the current gravel-paved road. See Trial Transcript p. 30; Ex. 19; View. Teare has intentions to improve and access Lot 2. Teare alleges that the fence prevents him from bringing in large equipment to improve Lot 2. See Trial Transcript p. 46-47. Prior to the fence and concrete blocks, lowboys trailers and dump trucks were able to drive down Kristen Lane. Trial Transcript p. 38.

28. Teare has placed garbage receptacles with reflecting tape in front of the cement blocks. Trial Transcript p. 42.

Discussion

Two questions are raised in this case. The first is whether Teare has a deeded, recorded interest to use the entire width of Kristen Lane. The interest would take the form of an easement, “an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). The second question is, if there is an easement, whether the Stockwells' improvements on the easement interfere with reasonable use of the easement and whether Teare has interfered with the Stockwells’ rights.

Rights in Kristen Lane. Teare claims that the deeds and plans of record establish that he holds an easement to pass over the entire width of Kristen Lane, including that portion of Kristen Lane that lies within the Stockwell Property. As the party claiming the easement right, Teare has the burden of proving the existence of the easement. Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684 (2012). The principles for interpreting deeds and other instruments in the chain of title are similar to those for interpreting contracts. Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). The meaning of the deed, “derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 174 , 179 (1998). Of particular relevance here, a conveyance that includes a right to use a way shown on a specified plan in common with others grants and reserves an easement to use that way for the benefit of all the lots shown on the plan that are held or conveyed by the common grantor. Canton Highlands, Inc. v. Searle, 9 Mass. Ct. 48, 50-51 (1980); Sova v. Randazza, 13 LCR 425 , 427 (2005). In Canton Highlands, lots in a subdivision were conveyed subject to the right to use the streets and ways shown on the registration plan in common with others. The Appeals Court held that owners of a lot in the subdivision possessed “rights in the way by reason of an express grant referenced to a plan which clearly delineates the length and breadth of the easement.” In light of this, the court concluded that the lower court judge “correctly ruled that the grant was unambiguous in its terms and that the easement granted was precisely formulated on the [registration] plan.” Canton Highlands, Inc., 9 Mass. App. Ct. at 51.

Here, lot owners of the subdivision were granted the rights to use and install utilities along Kristen Lane. In 1991, Quarry Hills Estates, Inc., the common grantor, sold several of the western lots and those portions of Kristen Lane along which they lie to Siragusa Realty Trust (lots 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13,, 34, 35, 36, 37, 38, 39, A, B, and C). Ex. 6. The fee in the lots and portions of Kristen Lane were conveyed along “with the right to use Kristen Lane . . . and the further right to install utilities for its entire length in all directions on [the Definitive Plan] in common with others . . .” Ex. 6. In the deed, Quarry Hills Estates, Inc. also retained for itself, for the remaining lots, “the right to use Kristen Lane . . . and the further right to install utilities for its entire length in all directions as shown on [the Definitive Plan] in common with others . . .” Ex. 6. In other words, as in Canton Highlands, the common grantor made all the lots subject to the rights to use Kristen Lane in common with others, with reference to a plan showing Kristen Lane. Since there was an express grant incorporating and referencing the Definitive Plan, which clearly marked out the path of Kristen Lane and gave it a fifty- foot right-of-way, the grant was unambiguous. The grant was sufficient to give the Siragusa Realty Trust the right to use Kristen Lane, and to reserve to the other lots still held by Quarry Hills Estates, Inc. the right to use Kristen Lane. Subsequent conveyances of those lots also expressly conveyed the lots subject to the right to use Kristen Lane. Even without the express grant, subsequent deeds conveyed the right in Kristen Lane as a matter of law. G.L. c. 183, § 15.

Record title shows that the Stockwell Property was encumbered by the roadway easement and put the Stockwells in notice of the encumbrance. As mentioned above, Quarry Hills Estates, Inc., the common grantor, conveyed the lots to the Siragusa Realty Trust subject to a roadway easement in Kristen Lane for its entire length, “in common with others”, as shown on the Definitive Plan. In 1996, Lot 1, which makes up the majority of the Stockwell Property, was then redrawn to include the fee in a 25-foot wide strip of Kristen Lane that was also marked as “roadway easement,” and recorded as Lot 1R. Ex. 9. Nicholas Valorie, Trustee of Siragusa Realty Trust, then conveyed Lot 1R to Blackstone Valley Homes, Corp. “[r]eserving to the grantor for the benefit of his remaining land a 25 foot wide roadway easement as shown on [the 1996 ANR Plan] for all purposes that streets and ways may be used in the Town of Uxbridge.” Ex. 11.

All of the other lots in the western portion of the subdivision owned by Siragusa Realty Trust (in other words, Lots 2, 10, 11, 37, 38, 39, A, B, and C, the majority of which are now owned by Teare), were conveyed to Blackstone Valley Homes, Corp. in 1997. Ex. 14. The conveyance specifically provided that the lots were conveyed with the fee interest in Kristen Lane along which the lots lie, together “with and subject to rights of way, easements and restrictions as recited in Deed of Quarry Hill Estates, Inc. to Nicholas Siragusa, Trustee of Siragusa Realty Trust.” Ex. 14. The conveyance also provided that the lots be conveyed “[r]eserving to the grantor for the benefit of his remaining land the right to use Kristen Lane as streets and ways are commonly used in the Town of Uxbridge.” Ex. 14. In addition, Lots 2, 10, 11, 37, 38, 39, A, B, and C benefited from “rights of way, easements . . . as recited in Deed of Quarry Hill Estates, Inc. to [Siragusa]”, including the portion of Kristen Lane that runs through Lot 1R. Thus, after this conveyance, Lots 2, 10, 11, 37, 38, 39, A, B, C, and 1R were now held in common by Blackstone Valley Homes, Corp. Ex. 14. This means that the easement allowing the owner of each of these lots to use the portions of Kristen Lane abutting the lots, including the portion of Kristen lane incorporated into Lot 1R, was extinguished through merger. “Under the common-law doctrine of merger, easements are extinguished ‘by unity of title and possession of the two estates [the dominant and the servient], in one and the same person at the same time.’” Williams Bros. Inc. of Marshfield, 81 Mass. App. Ct. at 684, quoting Ritger v. Parker, 62 Mass. 145 , 146 (1851). Any express right that Teare now claims he has to cross over the portion of Kristen lane in Lot 1R would have to have been lawfully re-granted by Blackstone Valley Homes, Corp. as a new easement.

In 1998, Blackstone Valley Homes, Corp. conveyed Lot 1R to the Heberts “subject to a roadway easement to the grantor and/or successors to pass and repass and make improvements in the road . . . over the portion of land identified as roadway easement on [the 1996 ANR Plan].” Ex. 12. This was an express reservation and re-grant of the easement over the portion of Kristen Lane in Lot 1R that was previously extinguished by merger, for the benefit of the other lots owned by Blackstone Valley Homes, Corp. When Teare acquired Lot 10R by foreclosure deed in 1999 (after lots 10, 11, and 39 were reconfigured as lots 10R and 11R), Teare acquired title together with the roadway easement that benefited Lot 10R, even though it was not expressly enumerated in the foreclosure deed. Ex. 18; G.L. c. 183, § 15. In the same year, Teare acquired Lots 2, 37, and 38, which also lie on Kristen Lane, “together with the rights, easements, restrictions and reservations set forth in the deed from [the Siragusa Realty Trust].” Ex. 20. The easement over the portion of Kristen Lane within Lot 1R, reserved and re-granted in the 1998 deed conveying lot 1R, was one of those easements. Thus, Teare's other lots, 2, 37, and 38, also have the benefit of an easement in the whole width of Kristen Lane, including the portion within Lot 1R owned in fee by the Heberts.

In 2002, the Heberts conveyed Lot 1R to the Stockwells “subject to a roadway easement to the grantor and/or successors to pass and repass over the portion of land identified as roadway easement on [the 1996 ANR Plan].” Ex. 13. The Stockwells took possession of Lot 1R subject to the easement allowing others in the subdivision, including the owners of the Blackstone Valley Homes lots, to use the full width of Kristen Lane, including the portion they own in fee.

In 2003, Teare reconfigured Lot 10R as Lot 10R-1, with frontage on Kristen Lane, which Teare kept, and Parcel A, with frontage on West Hartford Avenue, which Teare sold to the Lavallees. Ex. 22; Ex. 23. In short, the record title for Teare's properties, Lots 2, 37, 38, and 10R-1, either contains the express right to use Kristen Lane or the right to use the lane as a matter of law. Record title for the Stockwell Property, Lot 1R, contains express easements that benefit the other lots in the subdivision without access to public roads, allowing use of the portion of Kristen Lane that the Stockwells own in fee.

The Stockwells argue in the alternative that Lot 1R, the Stockwell Property, should be treated as a separate pork-chop lot not within the subdivision because the previous owner had to “seek relief” from the town through a special permit reforming Lot 1, deemed without access to the public way, into Lot 1R, with a 25' strip with access. Relevant language of the ZBA's 1994 decision reads: “[the owner] would like to put one house on his lot having 25' of frontage on West Hartford Avenue. The remaining 25' of the frontage would have an access to the rear of the other lots.” Defendant's Post-Trial Brief, p. 7. The special permit does not create or eliminate property rights. It does not negate the fact that the owner later reserved an easement over the 25' strip within Lot 1R, which was also labeled as a roadway easement in the ANR Plan of 1996 reconfiguring Lot 1 into Lot 1R, for the benefit of the other lot owners. There remains an easement for the benefit of Teare's lots, including the Teare Property, to enter and use the 600' by 25' portion of Kristen Lane now owned by the Stockwells for passage and access.

Interference with easement rights. Since I find there is an express easement allowing Teare as owner of Lots 2, 37, 38, and 10R-1, the Teare Property, to use the portion of Kristen Lane within the Stockwell Property, I turn to the second issue of whether the Stockwells' improvements within Kristen Lane materially interfere with Teare's use of the easement. “Although servient owners enjoy rights to use their land, they may not engage in activities that are inconsistent or materially interfere with a dominant owner's easement.” World Species List-Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 310 (2009); see also Western Mass. Elec. Co. v. Sambo's of Mass., Inc., 81 Mass. App. Ct. 815 , 818 (1979).

First, the large, wooden pole laid horizontally on the lane by the Stockwells materially interferes with Teare’s roadway easement and must be removed. It is true that “the rights of the owner of the easement are protected notwithstanding changes made by the servient estate owner as long as the purpose for which the easement was originally granted is preserved.” M.P.M. Builders, L.L.C. v. Dwyer, 442 Mass. 87 , 91 (2004). Here, however, only all-terrain vehicles are able to drive over the thick pole laid by the Stockwells, which is laid horizontally across the entire width of the paved lane between the fence in the Stockwells' portion and the ledge in Teare's portion of Kristen Lane. Common vehicles, such as cars, sedans, and trucks, are incapable of driving over the pole, rendering that portion of Kristen Lane unusable for the “purpose for which the easement was originally granted,” id., namely for the owners of other lots to be able to “pass and repass” over the roadway easement. Id.; Ex. 13. In order to access Lot 2 in the subdivision, and any other lot deeper in the subdivision, one has to drive off the area marked as Kristen Lane, onto the Teare Property, bypass the pole, then drive back onto Kristen Lane. That Lots 2 and 10R-1 are both currently owned by Teare, so that Teare can still access Lot 2 by driving through Lot 10R-1, does not change the fact that the Stockwells have materially interfered with the easement granting others the right to pass and repass over the portion of Kristen Lane they own in fee.

Next, the cement blocks placed by the Stockwells also materially interfere with the use of Kristen Lane and must be removed. “The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights.” Western Mass. Elec. Co., 8 Mass. App. Ct. at 818, quoting Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 366 (1979). Here, the concrete blocks are set dangerously and inconveniently close to one another at the corner of Kristen Lane and West Hartford Avenue. Not only must vehicles strategically maneuver and turn into Kristen Lane because of the cement blocks, they are also hard to see in taller vehicles. Moreover, Teare's trash removal company is no longer able to reach his property with its trash truck, and Teare must bring his trash receptacles to the entrance of Kristen Lane, which is certainly an inconvenience. The cement blocks are also an inconvenience for the Stockwells' trash removal company since it has to enter Kristen Lane by backing down Kristen Lane for more control and to avoid turning head-on into and hitting the narrowly set cement blocks.

Even if the cement blocks are not materially inconvenient, they nonetheless materially interfere with the purpose of the easement, which is to allow vehicles to use Kristen Lane and access lots without frontage to the public way. The narrowly-set cement blocks prevent larger trucks, such as tractor-trailers used to transport construction materials, from entering Kristen Lane. As the Stockwells admit, prior to the placement of cement blocks and the fence extension, lowboy trailers and other trucks had no trouble accessing and entering Kristen Lane. After the cement blocks were placed at the entrance of Kristen Lane, even tractor-trailers used to deliver materials to the Stockwell Property parked on West Hartford Avenue and did not or could not drive onto Kristen Lane. Thus, the cement blocks materially impede and interfere with the usage of the roadway easement over Kristen Lane and must be removed.

Third, the Stockwells constructed a fence that extends into their side of Kristen Lane by approximately 17 feet. The fence does not interfere with or extend onto the current gravel-paved road. Since the fence does not interfere with the present use of Kristen Lane and there is no evidence that the fence, in-and-of itself, prevents vehicles or even trucks from reaching the lots on Kristen Lane below the fence, the fence does not need to removed. Whether the fence would interfere with the use of Kristen Lane in the future is a question left for another day.

Relocating and narrowing the width of the easement. In addition, the Stockwells argue that a servient estate owner may unilaterally relocate or narrow an easement. Martin v. Simmons Props., LLC, 467 Mass. 1 , 9-10 (2014) (noting that a servient estate holder may unilaterally relocate an easement to make the fullest use of its property, subject to conditions). There are several reasons why relocation will not be considered in this case. In M.P.M. Builders, L.L.C., the court adopted the modern view that a servient owner of an easement may permit change or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created. M.P.M. Builders, L.L.C., 442 Mass. at 90-92; Sova v. Randazza, 13 LCR 425 at n. 13 (2005). Relocation is only a second-best alternative for dominant and servient owners who are unable to agree on the location of an easement; the servient owner may resort to relocation only by seeking a declaration from the court, prior to making the changes, that the proposed changes meet the three factors listed above. M.P.M Builders, L.L.C., 442 Mass. at 93; see generally Sova, 13 LCR 425 . The purpose of seeking a declaration is to ensure that both dominant and servient owners have an opportunity to argue whether the relocation is equitable. M.P.M Builders, L.L.C., 442 Mass. at 93. Here, the Stockwells did not first propose specific changes or relocations, nor did they seek a declaratory judgment from the court. As a result, Teare, and the other dominant owners in the subdivision who have an express easement to use and improve Kristen Lane, have not had the opportunity to prove that relocation will cause damage. Self-help remedies to narrow or relocate to the easement, such as the strategic placement of cement blocks or the pole, are rejected by the court. A declaratory judgment should be sought prior to making alterations. Id.

Teare's trespass. The Stockwells argue that Teare's entry onto the Stockwell Property, placement of garbage receptacles and other materials, and destruction of survey stakes constitute trespass. First of all, there is no evidence that Teare destroyed the survey stakes. More important, in order to support an action of trespass, there must be an illegal or unprivileged entry upon the property owned by another. See Gillespie v. Aliot, 14 LCR 429 , 430 (2006); New England Box Co. v. C & R Const. Co., 313 Mass. 696 , 707 (1943); see also Restatement (Second) of Torts, § 329 (1965). Since Teare has an express, recorded right to enter upon and use the portion of Kristen Lane owned by the Stockwells, his entry onto it is legal and privileged and cannot be deemed a trespass. This does not mean, however, that Teare may enter the portion of Kristen Lane fenced off by the Stockwells. As I have found that this fence does not prevent Teare from using Kristen Lane at this time, he must respect the Stockwells' fence.

Overburdened easement. The Stockwells argue that Teare overburdened the easement by harassing the Stockwells' animals inside the fence, destroying survey stakes and markers, placing garbage receptacles on Kristen Lane, and driving recklessly down Kristen Lane. Since the Stockwells did not present any evidence of or facts showing the harassment of animals or destruction of survey stakes, only the placement of garbage receptacles will be addressed. “The scope of an easement conveyed by grant is construed from the parties' intent, ascertained from the terms of the relevant instruments in light of the attendant circumstances so far as they are illuminating.” Broude v. Massachusetts Bay Lines, Inc., 13 LCR 332 , 335 (2005); see also McLaughlin v. Board of Selectmen, 422 Mass. 359 , 364 (1996). “Determination of the scope of rights held under an expressed reservation of an easement where there is at least some ambiguity depends upon ‘a presumed intention of the parties, to be gathered 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 are chargeable.’” Broude, 13 LCR at 336, quoting Boudreau v. Coleman, 29 Mass. App. Ct., 621, 629 (1990). Here, the terms of the express reservation of an easement in the Stockwells' chain of title provide that other lots may use and “pass and repass” over the portion of Kristen Lane within the Stockwells' Parcel. The terms of the express grant of an easement found in Teare's chain of title references the deed from Siragusa Realty Trust to Blackstone Valley Homes, Corp., which grants the easement “for all purposes that streets and ways may be used in the town of Uxbridge.” Because Teare's trash removal company's trucks currently cannot reach his property due to the Stockwells' impediments on Kristen Lane, his placement of garbage receptacles for trash pick-up does not overburden the easement if the placement of garbage receptacles on public ways directly in front of a property for trash pick-up is permitted by the town. However, the garbage receptacles with reflecting tape Teare placed in front of the cement blocks overburden the easement and block vehicles from using Kristen Lane just as much as the cement blocks do and must be removed.

Conclusion

Judgment shall enter (a) declaring that Teare has an easement to use the portion of the Kristen Lane owned by the Stockwells, (b) enjoining the Stockwells from placing cement blocks and large poles inhibiting use of Kristen Lane, (c) declaring that the Stockwells’ fence does not currently interfere with Teare’s easement, and (d) enjoining Teare from placing garbage receptacles inhibiting use of Kristen Lane.

Judgment accordingly.

exhibit 1

exhibit 2

exhibit 3