MISC 17-000506

September 18, 2017

Middlesex, ss.




Plaintiff Lucimar Siqueira and defendant William Greenwood own abutting houses on densely-built Ash Street in Somerville. Mr. Greenwood's house, constructed in the 1920's before zoning, is right on the boundary line, and Ms. Siqueira's driveway, on the right-hand side of her lot, is paved to the edge of the Greenwood house. She has built a fence along the boundary line in the back, physically separating the two lots.

On August 23, 2017, a worker hired by Mr. Greenwood to trim tree limbs overhanging his house went briefly onto Ms. Siqueira's driveway (and, perhaps, momentarily into her back yard), to pick up branches he had cut that had fallen there. The trimming had been done from a mechanical lift parked on Mr. Greenwood's land, and some of the branches were allegedly from a tree whose trunk is on the Siqueira property. [Note 1] Ms. Siqueira says that this was a trespass and seeks damages for wrongful tree cutting.

A second incident took place on August 29, when a worker hired by defendant William Greenwood to do weeding at his house walked onto Ms. Siqueira's driveway between the two houses, either to pull weeds along Mr. Greenwood's foundation or to gain access to Mr. Greenwood's back yard for further weeding. He was on the driveway only moments, re-tracing his steps as soon as he saw the backyard fence blocking such access. Ms. Siqueira alleges that this momentary walking on her driveway was a trespass as well.

Mr. Greenwood says that the workers went onto Ms. Siqueira's land when neither he nor Ms. Siqueira were at home, [Note 2] and went there without his knowledge or permission. Videotapes taken by Ms. Siqueira bear this out. They show Mr. Greenwood standing with the tree-trimmer on the sidewalk, gesturing towards Ms. Greenwood's driveway in a way that, to me, looked like a "stay off" command, and then walking in the opposite direction (towards his house) with the worker.

Ms. Siqueira claims that the tree limbs were wrongfully cut, that the workers came onto her land without any right to do so, and seeks an injunction and "other relief" (presumably damages) prohibiting further cutting and incursions. Two motions are presently before me: Ms. Siqueira's motion for a preliminary injunction, and Mr. Greenwood's to dismiss this case for lack of subject matter jurisdiction in this court. [Note 3] I agree with Mr. Greenwood that this court has no jurisdiction over the claims at issue in this case, dismiss it on that basis, and, for that and other reasons, deny the motion for preliminary injunction.


Even if this court had subject matter jurisdiction over this dispute, the motion for preliminary injunction would be denied. Such injunctions require a showing of both likelihood of success on the merits and irreparable harm. See John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124 , 130-131 (1999). I need not, and do not, rule on whether the workers' brief incursions were actionable trespasses [Note 4] (i.e., that Ms. Siqueira is likely ultimately to prevail on the merits of her claims) because "irreparable harm," beyond what already has occurred, has not been shown. These two incidents appear to be "one-offs", with no likelihood of repetition before the ultimate merits of the case are decided, and there is thus no present need of injunctive relief. Relations between the parties are such that I strongly doubt that Mr. Greenwood will take any steps onto Ms. Siqueira's land beyond what his easement allows, [Note 5] and he would be well- advised to be physically present to supervise any work being done at or around his house to ensure that no unauthorized incursions onto Ms. Siqueira's land occur.

More fundamentally, the injunction must be denied because this court lacks subject matter jurisdiction over this case. The Land Court is a court of limited jurisdiction. With certain exceptions, none relevant here, [Note 6] that jurisdiction is limited to "cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved." See G.L. c. 185, §1(k). The causes of action in this case sound in tort (trespass and wrongful cutting of trees) and contract (alleged breach of settlement agreement), and this court has no jurisdiction over such claims unless, as in Ritter v. Bergmann, they are ancillary to claims related to any right, title or interest in land. 72 Mass. App. Ct. 296 , 302 (2008). Such is not the case here. All land rights are either agreed-to or not in genuine dispute. The parties agree on who owns their respective properties and the boundary line between them. They could hardly do otherwise, since Mr. Greenwood's land is registered, with its boundaries set by the registration decree. There is also no dispute that Mr. Greenwood's express easement to conduct certain activities on a portion of Ms. Siqueira's land is not involved. [Note 7] By its terms, that easement only exists between September 15 and April 1, and all of the conduct at issue occurred before then. The only issues in dispute are whether Mr. Greenwood is responsible for the acts of the workers he hired who committed the alleged trespasses, whether their actions were tortious and, if so, what the damages and/or other relief should be. All of these are fully within the jurisdiction and powers of the District Court. See G.L. c. 218, §§19 (damages jurisdiction) & 19C (equitable powers).

Ms. Siqueira disagrees, arguing that this court has jurisdiction under G.L. c. 185, §1(k); G.L. c. 185, §1(o); and/or G.L. c. 240, §10A. She is incorrect.

G.L. c. 185, §1(k) grants the Land Court jurisdiction over "all cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts." Tort cases fall within this grant only when they involve a disputed property line — i.e., a need to adjudicate the property's ownership (a subject within the expertise of this court). See Sheppard v. Langone, 16 LCR 155 , 156-157 (2008) and cases cited therein. Damaging property that is undisputedly someone else's is a tort outside this grant, because no adjudication of the property's ownership is involved. As noted in Sheppard, citing Fleury v. Moir, 15 LCR 507 , 510 (2007), "'[a] claim by one neighbor for damages arising out of the sprinkling of water across a property line that is not in dispute would not be a proper Land Court case.' This distinction between an action for water damage across a property line that is not in dispute, as opposed to damage caused by water crossing a disputed property line, well illustrates the accepted scope of this court's jurisdiction under G.L. c. 185, §1(k)." 16 LCR at 157. Here, as noted above, there is no dispute that the allegedly tortious acts (trepass and tree cutting) took place on Ms. Siqueira's land, and that Mr. Greenwood's easement was not involved in any way (it is only in effect September 15 through April 1). Ms. Siqueira's claim for "specific performance of contract" (the settlement agreement) fails for the same reason. The settlement agreement is a contract between the parties, and provides for the recording of the easement. That has been done. There is nothing land-related to specifically perform under that agreement in the context of this case or, for that matter, under or related to the easement, since the easement was not in effect at the time of the conduct alleged, and no one disputes this. There is thus no Land Court jurisdiction under G.L. c. 185, §1(k).

The same is true, for the same reason, under G.L. c. 185, §1(o), which grants the Land Court jurisdiction over "civil actions of trespass to real estate involving title to real estate." (emphasis added). Simply put, title to real estate is not involved in this case, only allegedly tortious conduct on land whose title (in Ms. Siqueira) is undisputed. There is thus no jurisdiction in this court under that provision.

Ms. Siqueira's final jurisdictional argument is based on G.L. c. 240, §10A. Again, that argument fails. That provision grants the Land Court and the Superior Court concurrent jurisdiction to "determine and declare whether and in what manner and to what extent and for the benefit of what land [a] restriction is then enforceable, whether or not a violation has occurred or is threatened." Simply put, there is no restriction at issue in this case. Easements are not restrictions, see Labounty v. Vickers, 352 Mass. 337 , 347–348 (1967), and, even if they were, Mr. Greenwood's easement is irrelevant to the tortious trespass alleged. It was not in effect at the time of that conduct. There is thus no jurisdiction in this court under that provision.


For the foregoing reasons, Ms. Siqueira's motion for preliminary injunction is DENIED and her complaint is DISMISSED for lack of subject matter jurisdiction, without prejudice to her right to bring those claims in a court of competent jurisdiction.

Judgment shall enter accordingly.



[Note 1] Mr. Greenwood disputes this, contending that the tree trunk is on the house lot behind Ms. Siqueira's.

[Note 2] The incidents were recorded by video cameras Ms. Siqueira has installed.

[Note 3] The court raised the issue sua sponte at the hearing on the plaintiff's motion for preliminary injunction and the defendant orally moved for such dismissal at that time.

[Note 4] The August 29 weeder's few steps were momentary and, so far as the present record shows, nothing he did caused any damage to Ms. Siqueira or her property. If the August 23 tree trimmer was only cutting limbs in the parts overhanging the Greenwood property, and did so while on Mr. Greenwood's land, he would have had the right (and, likely, the obligation) to briefly go onto the Siqueira property to pick up the limbs so cut. See Levine v. Black, 312 Mass. 242 , 243 (1942) (landowner has right to cut off limbs and roots which invade his premises). If the worker cut more than the limbs overhanging Mr. Greenwood's land, Ms. Siqueira has a full damages remedy including, if appropriate, the cost of restoration/replacement and multiple damages pursuant to G.L. c. 242, §7.

[Note 5] Between September 15 and April 1 of each year, Mr. Greenwood has an express easement to enter onto a designated portion of Ms. Siqueira's immediately abutting land "to make usual and necessary repairs and improvements upon [his] house…and for no other purpose whatsoever", and must perform that work "only during regular working hours" and "with dispatch."

Ms. Siqueira's request for an injunction prohibiting misuse of the easement has no basis. The easement (which did not take effect until September 15) has not yet been used, much less misused, so there is nothing to enjoin. Implicit in the easement is a requirement that the parties meet and confer before any work in the easement area is begun.

[Note 6] Those exceptions include challenges to the validity and extent of municipal zoning ordinances, by-laws and regulations under G.L. c. 240, §14A (G.L. c. 185, §1(j ½)); appeals pursuant to G.L. c. 40A, §§7 & 17 (G.L. c. 185, §1(p) (zoning matters do not involve "right, title or interest" in land, see Siegemund v. Building Com'rs of City of Boston, 263 Mass. 212 , 214-215 (1928)); actions pursuant to G.L. c. 41, §§81B, 81V, 81Y & 81BB (subdivision control) (G.L. c. 185, §1(q)); petitions for partition (G.L. c. 185, §1(t)); tax title foreclosure proceedings (G.L. c. 185, §1(b)); and the large project "permit session" jurisdiction conferred by G.L. c. 185, §3A.

[Note 7] See supra n. 5.