BRUCE GOODCHILD, DONNA GOODCHILD, and GERTRUDE GOODCHILD v. LOUIS T. ARAGI and LOUIS T. ARAGI, JR.

Neighboring farmers, who own abutting farms each comprising hundreds of acres, cannot agree on the proposed relocation, by a matter of a few dozen feet, of an easement used for the only access to one of the farms; hence, the court is asked to determine the propriety of the proposed relocation, and also whether the plaintiffs have overloaded the easement by using it for access to additional parcels. The plaintiffs, Bruce Goodchild, Donna Goodchild, and Gertrude Goodchild, are owners of the Sheffield Sod Farm in Sheffield (the "Goodchild Property"). The Goodchild Property has frontage on Hewins Street. [Note 1] The defendants, Louis T. Aragi and Louis T. Aragi, Jr., own the neighboring Pine Island Farm, comprised of a series of contiguous parcels of land and at which they operate a dairy farm (the "Aragi Property"). The heart of the dairy operation is located on a 100-acre parcel of the Aragi Property. The 100-acre parcel is benefitted by an easement over the Goodchild Property to reach Hewins Street, as it does not have frontage on Hewins Street or on any other public way. The plaintiffs filed the present action on August 19, 2015, seeking to relocate the easement pursuant to M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), to create more space around a barn situated on the Goodchild Property near the easement's intersection with Hewins Street. The plaintiffs desire the additional space to provide a parking and loading area for customers of their turf business. The plaintiffs also contend that the easement roadway in its current location contributes to the flooding of the plaintiffs' barn, resulting from the defendants' maintenance of the easement over time, including increasing the roadway's elevation, width, and, more recently, installation of a layer of asphalt millings on the surface. Finally, the plaintiffs seek to prohibit the defendants from using the easement to access the parcels of land that are contiguous to the 100-acre parcel, because only the 100-acre parcel is expressly benefitted by the easement.

On October 26, 2015, the plaintiffs filed their Second Amended Complaint seeking declaratory relief allowing them to make reasonable changes in the location or dimensions of the easement (Count I), asserting a claim for the defendants' overloading of the easement by using it to access property other than the 100-acre parcel (Count II), and seeking damages for nuisance on the theory that the defendants' continuous raising of the level of the easement roadway and widening of the easement roadway has resulted in an unnatural water flow, leading to flooding in the plaintiffs' barn (Count III). [Note 2] The defendants counterclaimed, arguing that they possess either an implied easement, easement by prescription, easement by deed, easement by estoppel, and/or easement by necessity to access the parcels other than the 100-acre parcel.

On October 25, 2017, I conducted a view of the plaintiffs' and defendants' properties. A trial was held before me on October 25 and 26, 2017; following the submission of post-trial requests for rulings, findings of fact and memoranda of law, and closing arguments, I took the matter under advisement on May 2, 2018.

For the reasons stated below, I find and rule that the defendants have the benefit of an easement by prescription to access the parcels contiguous to the 100-acre parcel, that the plaintiffs are entitled to the relocation of the easement, and that the plaintiffs are not entitled to damages for nuisance.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

The Parties and the Properties

1. The plaintiffs, Bruce Goodchild and Donna Goodchild, who are husband and wife, and Bruce's mother Gertrude Goodchild, own the Sheffield Sod Farm located at 1500 Hewins Street, Ashley Falls, in the town of Sheffield, by virtue of a deed recorded February 1, 2010, in the Berkshire South District Registry of Deeds ("Registry") at Book 1967, Page 200 (the "Goodchild Property"). [Note 3]

2. Bruce and Donna Goodchild reside on the Goodchild Property, which comprises approximately 400 acres of land located on both sides of Hewins Street.

3. The defendants, Louis T. Aragi and Louis T. Aragi, Jr., are the owners of the Pine Island Farm in Sheffield. The Pine Island Farm consists of several parcels, one of which is a 100-acre parcel of land (the "100-acre parcel") on which Aragi and Aragi Jr. operate a dairy farm with about 700 dairy cows. Contiguous parcels, of 67 acres, 12 acres and 49 acres, are also part of the Aragi Property and are used by the Aragis to grow corn for feed for the dairy cows that are kept on the 100-acre parcel. [Note 4]

4. The 100-acre parcel does not have frontage on Hewins Street or any other public way, but is benefitted by an easement (the "easement") over the Goodchild Property to access Hewins Street. [Note 5] The contiguous parcels also lack frontage, but are not benefitted by the easement as a matter of record.

The History of the Properties

The Goodchild Property

5. Bruce Goodchild's great-great-great-grandfather purchased the Goodchild Property in 1864. [Note 6]

6. Bruce Goodchild began spending summers on the Goodchild Property during his childhood when his grandfather, William Conklin, owned the property and operated a dairy farm. [Note 7]

7. In 1983, Bruce and Donna Goodchild moved to the Goodchild Property and took over the dairy operation from William Conklin, paying rent to him for use of the farm. [Note 8] The Goodchilds discontinued the dairy operation in 1987 to start a turf business on the Goodchild Property. [Note 9]

8. In 2006, William Conklin died and his daughter Gertrude, who is Bruce Goodchild's mother, and his son Harry Conklin, who is Bruce Goodchild's uncle, inherited the Goodchild Property. [Note 10] In February, 2010, Bruce and Donna Goodchild purchased Harry Conklin's interest in the farm. [Note 11] Gertrude Goodchild continues to hold a one-half undivided interest in the Goodchild Property, and Bruce and Donna Goodchild hold, as tenants by the entirety, a one-half undivided interest in the Goodchild Property. [Note 12]

The Aragi Property

9. The 100-acre parcel at one time belonged to Bruce Goodchild's great-great grandfather, William Dunham. [Note 13] In 1910, Dunham conveyed a parcel of land containing an estimated 100 acres to Orenoto Ghislanzani, by deed recorded with the Registry at Book 205, Page 254. [Note 14] The 1910 deed included the original grant of the easement, and states, "It is hereby understood this deed does not convey the swamp lot or any land east or south of said bank line mentioned above, only the right of way to cross to the highway." [Note 15]

10. In 1964, Thomas Aragi, Louis T. Aragi's father, purchased the 100-acre parcel from Julia Sali, by a deed dated September 28, 1964. [Note 16] The deed from Sali to Thomas Aragi conveyed three parcels of land; the 100-acre parcel appears in the deed as "Third Parcel" and states, "[a]lso hereby conveying the rights of way appurtenant to said premises." [Note 17] The "First Parcel" is contiguous with the 100-acre parcel to the north and the deed states that it contains "67 acres, also a right of way to and from the conveyed premises across land set to Phebe and Jerusha Hewins in the distribution of the estate of Joseph Hewins, using in the exercise of said right of way the lane which crosses the land so set to said Phebe and Jerusha Hewins as said lane was at the time of said distribution and now is." [Note 18] The "Second Parcel" is contiguous with the 100-acre parcel and contains 12 acres. [Note 19]

11. Thomas Aragi was a dairy farmer and Louis Aragi grew up on his father's dairy farm in Newtown, Connecticut. [Note 20] When Thomas Aragi purchased the 100-acre parcel it was an operating dairy farm, consistent with its historical use as such. After Thomas Aragi purchased the 100-acre parcel and the two contiguous parcels, he and his son Louis Aragi established their own dairy operation on the 100-acre parcel. [Note 21] In 1968, Thomas Aragi deeded the 100-acre parcel and the two contiguous parcels to himself and Louis Aragi, as joint tenants, by deed dated May 13, 1968, and recorded in the Registry at Book 361, Page 396. [Note 22]

12. Thomas Aragi died in 1973, and Louis Aragi became the sole owner of the 100-acre parcel and the two contiguous parcels. [Note 23]

13. In 1986, Louis Aragi purchased from Charles and Mary Joch a 49-acre parcel of land located to the south of the 100-acre parcel by deed dated December 30, 1986, and recorded in the Registry at Book 626, Page 175. [Note 24] Prior to the conveyance, the 49-acre parcel was part of a 77-acre parcel owned by the Jochs with frontage on Hewins Street. [Note 25] Approximately three years prior to purchasing the 49-acre parcel, Louis Aragi rented that parcel from the Jochs to grow corn to be used as feed for the dairy cows on the 100-acre parcel. [Note 26] During the time that Louis Aragi rented the 49-acre parcel, he accessed Hewins Street by crossing over the front portion of the Joch property. [Note 27] The deed conveying the 49-acre parcel to Louis Aragi did not include an easement to cross the land the Jochs retained, rendering the 49-acre parcel landlocked. [Note 28]

14. In 1995 or 1996, Louis Aragi deeded the 100-acre parcel, the two other contiguous parcels, and the 49-acre parcel (collectively, the "Aragi Property") to himself and his son, Louis Aragi, Jr. [Note 29] Following an intervening conveyance to a limited liability company, a deed dated August 12, 2008, recorded September 25, 2008 in the Registry at Book 1868, Page 48, reflects that Louis Aragi and Louis Aragi, Jr. own the four contiguous parcels comprising the Aragi Property as joint tenants. [Note 30]

15. In 2012, the Aragis purchased a property known as the Brunnschweiler Farm, which comprises approximately 300 acres and is located approximately five miles to the north of the Aragi and Goodchild Properties. [Note 31] The Brunnschweiler Farm is part of the main dairy operation in that "dry cows" [Note 32] are trucked from the 100-acre parcel to the Brunnschweiler Farm, where they are housed for 6 to 8 weeks before returning to the 100-acre parcel. [Note 33] Aragi's second son, Matthew Aragi, resides at the Brunnschweiler Farm. [Note 34] Cattle trailers transport cows between the 100-acre parcel and Brunnschweiler approximately three times per week. [Note 35]

16. The Aragis' dairy operation now includes over 700 cows. [Note 36] At least 30 vehicles are used in connection with the dairy operation, and approximately 15 to 20 people, including Louis Aragi, Louis Aragi, Jr., and employees of the Pine Island Farm, reside on the 100-acre parcel. [Note 37]

The Easement

Physical Characteristics

17. The easement runs from Hewins Street to the entrance of the 100-acre parcel, the site of the dairy farm. The roadway surface is variable in width, and, with the exception of a 35-foot "bulge" added by Louis Aragi near the entrance to facilitate turns, is nowhere more than about fifteen feet wide. [Note 38]

18. Leaving the gate of the dairy farm of the 100-acre parcel, the easement roadway is straight for a short distance and then takes a sharp turn to the right towards Hewins Street. For part of this distance it is raised as much as 18 inches to two feet above the surrounding terrain, much of which, in this central section, appears to be at least in part wetlands. The easement roadway approaches Hewins Street at an obtuse angle of about 120 degrees where it meets Hewins Street to the south and at an acute angle of less than ninety degrees to the north. Vehicles entering onto Hewins Street in a southerly direction do so with a gentle right turn, while vehicles making a left turn onto Hewins Street to travel in a northerly direction (the direction of the Brunnschweiler Farm) must make a sharper, roughly 90-degree turn. Larger trucks making the left turn onto Hewins Street to go north must make a turn so wide that their right wheels must leave the roadway of Hewins Street. [Note 39]

19. A driver turning right off the easement heading south onto Hewins Street has to turn significantly to the left to see oncoming traffic traveling south on Hewins Street. [Note 40] Trucks, approaching from the north, making a right turn onto the easement from Hewins Street have to swing wide to the left side of the roadway easement to make the right turn onto the easement. After 2006, Aragi created a "bulge," on the side of the easement nearest the Goodchilds' barn, to accommodate the wide turns. [Note 41] The bulge accommodates trucks leaving the easement and turning left to travel north on Hewins Street. [Note 42] The easement roadway is perhaps as wide as 35 feet at the bulge, but is no more than fifteen feet for most of its length, and is as narrow as thirteen feet at some locations. It is generally not wide enough to accommodate two-way traffic, especially with the large truck traffic accessing the 100-acre parcel. [Note 43]

20. The easement is narrow to the extent that it is only amenable to one-way traffic in most locations. [Note 44] The easement generally does not accommodate two-way traffic either at the entrance or along its length. [Note 45] Louis Aragi acknowledged that at some locations of the easement trucks have to pull to the side to allow oncoming trucks to pass, and in one instance a truck drove off the road and flipped over because one driver "got too close to the edge" when pulling over to allow an oncoming truck to pass through. [Note 46]

21. Between 1983 and 2006, the easement did not change much aside from increasing in width. [Note 47] Bruce Goodchild testified that after 2006, the Aragis raised the elevation of the roadway on the easement two or three times, for a total increase in height to approximately two feet. [Note 48] Harry Conklin estimated that the easement currently sits fourteen to eighteen inches higher than it did in the early 2000s. [Note 49] Based on this testimony and my view, I credit that the roadway on the easement is elevated over the surrounding terrain as much as two feet for much of its length.

22. Aragi maintains the roadway over the easement approximately twice per year, once in the fall and once in the spring. The maintenance entails either grading parts of the roadway, "back-dragging" parts of the roadway, or bringing in and spreading material. Aragi occasionally improves the entire easement and will "put a couple inches on it." [Note 50] In May, 2016, the Aragis added about three inches of asphalt millings to the roadway surface of the easement. [Note 51] Until the asphalt millings were added, after the start of this action, the surface of the roadway was gravel and quarry chips. [Note 52]

23. The Goodchilds have never maintained the easement. [Note 53]

Use of the Easement

24. Although Louis Aragi testified that most of the traffic using the easement comes from the south or goes towards the south on Hewins Street, it is undisputed, and I so find, that there is significant traffic as well leaving the easement turning left to the north and entering the easement by turning right onto the easement from the north. [Note 54] Cattle trailers transporting dry cows to the Brunnschweiler Farm as few as three times per week or as many as four to five times per week turn left onto Hewins Street to travel north to Brunnschweiler, or turn right off of Hewins Street into the easement returning from Brunnschweiler Farm, and Aragi owns other properties that require travel to and from the north in connection with the dairy farm operations on the 100-acre parcel. [Note 55]

25. Every day of the year a tanker truck ("milk truck") comes to the 100-acre parcel to pick up milk. [Note 56] Dump trailers bring feed for the animals (in addition to the feed corn grown on-site) to the 100-acre parcel at least three times per week; the feed is kept in storage bins on the 100-acre parcel. [Note 57] Hay that the Aragis purchase is delivered to the 100-acre parcel and stored in sheds on the 100-acre parcel, or in round bales outside. [Note 58]

26. Once per year a truck delivers seed corn to a shed located on the 100-acre parcel, which is used for all of the Aragis' corn fields, including the fields on the contiguous parcels of land. [Note 59]

27. The roadway on the easement is used by vehicles of all sizes, from passenger vehicles up to 18-wheelers measuring as long as 40 feet.

28. The Goodchilds also use the right of way to access their sod fields. Bruce Goodchild testified that he does not maintain the right of way, nor does he contribute any funds towards maintenance of the right of way.

Relationship between the 100-acre parcel and the Contiguous Aragi Properties

29. The 67-acre parcel is used solely to grow corn, which is in turn used solely as feed for the dairy cows on the contiguous 100-acre parcel. [Note 60] Aragi testified that the easement benefitting the 67-acre parcel was a 10-foot wide path approximately two miles long that ran to the north and connected to another farm, where it continued on to Hewins Street. [Note 61] The easement ran through swamp land and woods and Aragi characterized it as "not even a road. It's a boogie path." [Note 62] As a result, Aragi converted the easement over the 67-acre parcel to farmland for his corn crop. [Note 63] The contiguous 12-acre parcel is similarly used to grow corn that is used for feed for the cows on the 100-acre parcel.

30. The 49-acre parcel is also used solely to grow corn used as feed for the cows on the 100-acre parcel, and has been continuously used in this manner since Louis Aragi first rented (and later purchased) the 49-acre parcel in the early 1980s. [Note 64]

31. A corn planter that is kept on the 100-acre parcel takes the seed from the shed on the 100-acre parcel and plants it on the 49-, 67-, and 12-acre parcels. [Note 65] Manure from the cows on the 100-acre parcel is used as fertilizer for the corn fields, and Aragi testified, and I so find, that no manure or fertilizer is brought from outside the 100-acre parcel for the corn fields. [Note 66]

32. The corn that is harvested from the 49-, 67-, and 12-acre parcels is chopped up and placed in bunk silos on the 100-acre parcel, and is used as feed for the dairy cows on the 100-acre parcel. [Note 67]

33. William Conklin, Goodchild's grandfather, and then-owner of what is now the Goodchild Property, who was also a dairy farmer, visited the 100-acre parcel during the time period of the 1960s to 1980s and saw the dairy operation including the planting of corn on the contiguous parcels. [Note 68] William Conklin and Louis Aragi had a friendly neighborly relationship, and talked about the operations on the Aragi Property. Conklin and his family were aware that the contiguous parcels were used in connection with the operations of the dairy farm and that they were accessed from Hewins Street by the easement, by way of the 100-acre parcel, and Conklin did not raise any objections to the use of the contiguous parcels as part of the dairy farm operation in general; I find that he raised no objection to the use of the easement for access to the contiguous parcels, acquiescing in this use of the easement. [Note 69]

The Goodchild Barn

34. The Goodchilds use a barn, located on their property near the intersection of the easement and Hewins Street, in connection with their turf business. The "main" part of the barn was built in 1941 or 1942, and an addition was built in 1969 or 1970. [Note 70] Historically the barn was used in connection to William Conklin's dairy operation. More recently, the barn has been used to store sod and equipment related to the turf business. [Note 71]

35. The barn does not generally appear to be in a well-maintained or actively used condition. The barn has a room formerly used as a milk room, which has drains in the floor; the roof over the milk room has gaps, and the water flows to the drains. [Note 72] Bruce Goodchild testified that the roof has leaked for ten to fifteen years and that the drains direct the water underground towards the easement. [Note 73] I find that at least some of the flooding claimed by the plaintiffs is caused by this condition.

36. Three to four times per year, water runs into the barn and puddles throughout the barn. Bruce Goodchild testified that the flooding typically occurs during the winter when the ground is frozen and snow melt or rain flows from the easement to the barn. A photograph taken by Bruce Goodchild depicts the barn flooding with water; if the flooding is minor, the Goodchilds sweep the water out of the barn, but for larger amounts of water the Goodchilds use a sump pump to pump out the excess water. [Note 74]

37. On all the evidence, I find that some of the flooding in the barn is caused by the nearby roadway on the easement. The roadway has been elevated as much as two feet above existing grade near the barn, which is at a lower elevation. The roadway on the easement has no provisions for accommodating and directing surface water runoff, and, based partly on my view of the proximity of the roadway to the barn, it is obvious, and I so find, that surface water runoff from the roadway contributes to flooding of the barn.

38. However, I further find that the Goodchilds have not demonstrated or proven any monetary damages related to the flooding of the barn caused by the roadway, either in the form of repair costs or evidence of loss of rental value. [Note 75] Accordingly, I will decline to award other than equitable relief.

The Proposed Changes

39. Bruce Goodchild wants to relocate the easement to create more space next to the barn for storing sod and turf, and for servicing customers arriving in trucks to load product. He also believes that relocating the easement will solve the drainage issues he attributes to the easement. [Note 76]

40. In April, 2010, Bruce Goodchild, represented by counsel, contacted the Aragis through a letter sent by counsel raising the issue of relocating the easement. The letter requested that the parties meet at the site to discuss relocating the easement, but the meeting never took place. [Note 77]

41. In 2010 or 2011, Bruce Goodchild acquired a curb cut permit from the town of Sheffield and installed a portion of driveway consisting of gravel and quarry stones connecting the easement to Hewins Street at a 90-degree angle. [Note 78] This appears on the ground as a fork coming off the existing roadway to the left of the existing driveway as it approaches Hewins Street. Goodchild did not obtain permission from the Aragis to alter the easement. [Note 79] He blocked the historic entrance to the easement, but Aragi almost immediately pushed the barriers out of the way and once the police became involved Bruce Goodchild removed the barriers. [Note 80]

42. A letter dated July 30, 2014, from the Aragis' attorney to Bruce's attorney stated that the proposed relocation was unacceptable to the Aragis, and that the Goodchilds would have to pursue litigation to relocate the easement. [Note 81]

43. Bruce subsequently asked White Engineering, a firm that has represented the Goodchilds for nearly twenty years, to devise a plan that would relocate the easement, create space for a parking area near the barn, and solve the drainage problems he believes result from the easement's current location. [Note 82]

44. White Engineering consulted the requirements of the American Association of State Highway Transportation Officials ("AASHTO"), and the town of Sheffield's requirements, to identify the safe stopping sight distance for the intersection of the easement with Hewins Street. [Note 83] White Engineering referred to the AASHTO guidelines in order to design for the specific vehicles utilizing the easement. [Note 84] A field crew with survey instruments went to the Goodchild Property to take sight distance measurements at the easement's intersection with Hewins Street, and at the location of the proposed curb cut. [Note 85]

45. White Engineering first prepared a report for the Goodchilds on December 18, 2014. [Note 86] The report included a proposed plan (the "2014 Plan") for a relocated curb cut and roadway by which the easement would meet Hewins Street at an approximately 90-degree angle. [Note 87] Connecting the easement to Hewins Street at a 90-degree angle would improve a driver's view to the left to see oncoming traffic. [Note 88]

46. The 2014 Plan increased the sight distance to the south by 45 feet, while reducing the sight distance to the north. [Note 89] The sight distance to the north, although reduced, would still measure over 900 feet, and the sight distance to the south would measure just under 500 feet. [Note 90] Proposed sight distance in both directions exceeds minimum standards recommended by AASHTO.

47. The Aragis engaged William Shaheen, a licensed professional engineer, to evaluate White Engineering's December 18, 2014 report and site plan. [Note 91] Shaheen conducted field tests utilizing White Engineering's proposed plan and generated a report dated July 17, 2017. [Note 92] Shaheen determined that under the 2014 Plan, certain vehicles entering Hewins Street from the proposed curb cut would cross the double yellow median line on Hewins Street, and either overstep the apron on the easement roadway or overstep Hewins Street when traveling in a southbound direction. [Note 93]

48. White Engineering revised the 2014 Plan and generated a report and plan in August, 2017 (the "2017 Plan") in response to Shaheen's report. [Note 94] The revision on the 2017 Plan increased the apron width where the easement meets Hewins Street from 110 feet to 140 feet, so that a truck can turn right onto Hewins Street to travel south without crossing the double yellow median line. [Note 95] The apron width provided under the 2017 Plan is roughly double the width of the existing apron. [Note 96] The 2017 Plan does not accommodate two-way traffic at the entrance to Hewins Street because it requires a truck turning right onto Hewins Street to initiate the turn from the left side of the easement. [Note 97] However, the present driveway does not in any case accommodate two-way traffic for most of its length, and presently does not accommodate two-way traffic at the entrance, as trucks making a right turn onto the driveway from the north must veer all the way to the left side of the driveway (the "bulge") in order to make the turn.

49. I find that the proposed revisions to the easement roadway at the entrance at Hewins Street as proposed in the 2017 Plan, Exhibits 18 and 23C, will improve the safety of the roadway by improving the turning radius and angle for right turns into the driveway from the north and for left turns out of the driveway onto Hewins Street heading north, while maintaining the ability to make safe turns to the right from the driveway to the south out of the driveway and improving the safety of such turns by improving a driver's ability to check oncoming traffic from the north before entering Hewins Street. The proposed changes also do not decrease the utility or safety of left turns into the driveway from the south.

DISCUSSION

"An affirmative easement 'creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.'" Patterson v. Paul, 448 Mass. 658 , 663 (2007), quoting Restatement (Third) of Property (Servitudes) § 1.2(1) (2000). The party holding rights to use of the easement (the dominant estate) "is entitled to make only the uses reasonably necessary for the specified purpose," while the servient owner "retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude." Martin v. Simmons Properties, LLC, 467 Mass. 1 , 9 (2014), quoting Restatement (Third) of Property (Servitudes) § 1.2 comment (d). Where the easement is expressly created by grant and is not limited in its scope by the terms of the grant, it "is available for the reasonable uses to which the dominant estate may be devoted." Parsons v. New York, N.H. & H.R. Co., 216 Mass. 269 , 273 (1913). Further, "an easement granted in general and unrestricted terms is not limited to the uses made of the dominant estate at the time of its creation . . . ." Hewitt v. Perry, 314 Mass. 346 , 349 (1943). To determine the extent of an easement, the court looks to the circumstances of its creation, construing the grant "with reference to all its terms and the then existing conditions so far as they are illuminating" (citations and quotations omitted). Cannata v. Berkshire Natural Res. Council, Inc., 73 Mass. App. Ct. 789 , 795 (2009).

The deed from William Dunham to Orenoto Ghislanzani granting the easement explicitly states, "this deed does not convey the swamp lot or any land east or south of said bank line mentioned above, only the right of way to cross to the highway." In turn, the deed from Sali to Aragi states, in reference to the 100-acre parcel, "[a]lso hereby conveying the rights of way appurtenant to said premises." The Aragis, therefore, possess an express easement benefitting the 100-acre parcel. The language granting the easement does not limit its use. The language generally provides the Aragis a "right of way to cross to the highway" appurtenant to the use of the 100-acre parcel.

ACCESS TO OTHER ARAGI PROPERTIES

The plaintiffs argue that the Aragis have overloaded the easement by using it to access parcels contiguous to the 100-acre parcel, which are not benefitted by the original 1910 grant of the easement. Use of a granted easement to access parcels that do not have the benefit of the granted easement is ordinarily a per se overloading of the easement. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-679 (1965); Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 (2016). The Aragis contend that they do not use the easement to access the contiguous parcels because all use of the contiguous parcels is internal to the operation of the 100-acre parcel, and that no vehicles entering the 100-acre parcel continue on to any of the contiguous parcels, on which the only activity conducted is to grow corn that is used for feed for the cows kept on the 100-acre parcel. Accordingly, they contend that they are not overloading the easement by accessing the contiguous parcels.

Alternatively, the Aragis argue that to the extent their activities on the contiguous parcels do implicate the use of the easement, they have acquired prescriptive rights to access those parcels by their travel over the easement. The Aragis need succeed on only one of these defenses to defeat the overloading claim. Because I find that the Aragis have met their burden of proving that they have acquired prescriptive rights to use of the easement to access the contiguous parcels, I do not reach the question whether their use of the contiguous parcels does not implicate the use of the easement because it is too remote.

A party claiming a prescriptive easement must show "a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (citations omitted). "One claiming the benefit of an easement bears the burden of proving the existence of that easement on the servient estate." Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 753-754 (2015) (citations omitted). The claimant cannot prevail "[i]f any of the elements remains unproven or left in doubt." Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

An open use is one undertaken without attempted concealment; to be notorious, "it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Boothroyd v. Bogartz, supra, 68 Mass. App. Ct. at 44. "The purpose of the requirement of 'open and notorious' use is to place the true owner 'on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.'" Lawrence v. Concord, 439 Mass. 416 , 421 (2003), quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). All that is required is constructive notice, so "it is immaterial whether the true owner actually learns of that use or not." Lawrence v. Concord, supra, 439 Mass. at 422.

The Aragis must also demonstrate that their use of the easement to access parcels other than the 100-acre parcel was adverse. This requires showing a "lack of consent from the true owner." Totman v. Malloy, 431 Mass. 143 , 145 (2000). "[P]ermissive use is inconsistent with adverse use." Ryan v. Stavros, 348 Mass. 251 , 263 (1964). "The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Truc v. Field, 269 Mass. 524 , 528-529 (1930). "Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). On the other hand, "[i]mplied acquiescence is not necessarily the same as permission . . . . On the contrary adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (internal citations omitted).

Here, the Aragis have met their burden of proving each element necessary to establish a prescriptive right to use the easement over the Goodchild Property for access to the parcels of land that are contiguous with the 100-acre parcel. Their use of the 67-acre, the 12-acre parcel and the 49-acre parcel to grow corn has been open and notorious and their additional use of the easement to service the use of those parcels was no less open or notorious, and was in fact known to the Goodchild's predecessor. Louis Aragi testified that William Conklin, the plaintiffs' predecessor-in-interest, visited the 100-acre parcel while corn grew on the contiguous parcels in plain view. Harry Conklin also testified that it was known to the Conklin and Goodchild families that the Aragis used their contiguous fields to grow corn for use as feed on the 100-acre parcel, as is typical and customary for a dairy operation. I find that William Conklin, a dairy farmer himself, understood that the use of the contiguous parcels to grow feed corn for the dairy operation on the 100-acre parcel would involve additional incremental use of the easement. I find and rule that this knowledge by the Conklin family that corn was being grown on the contiguous parcels amounted to acquiescence, but not permission, to the resulting increased use of the easement for access to the contiguous parcels.

The Aragis have also met their burden of showing that their use of the easement in connection with the contiguous parcels has been continuous for at least twenty years. It is undisputed that the 67-acre and the 12-acre parcel have been used to grow corn since Thomas Aragi first purchased the 100-acre parcel in 1964. Although the 67-acre parcel was benefitted by its own express easement to access Hewins Street in a different location, the Aragis did not use that easement, considering it to be impractical, and, in fact, turned that easement path into farmland to grow corn. As to the 49-acre parcel, when Louis Aragi purchased the land from the Jochs in 1986 he did not reserve an easement to access Hewins Street and as a result the only access for the 49-acre parcel of land has been over the easement across the Goodchild Property for the entire period of the Aragis' ownership.

The only access onto the contiguous parcels on which feed corn is grown is over the easement to Hewins Street, and the only way seed corn has been delivered for use on the contiguous parcels is over the easement; employees of the Aragis' planting, tending and harvesting the corn could access the contiguous parcels only by travelling over the easement and then across the 100-acre parcel, and machinery and vehicles used to plant, tend, harvest and transport corn from the contiguous parcels could only have reached the contiguous parcels by way of the easement, even if they are stored on the 100-acre parcel.

The plaintiffs attempt to defeat the Aragis' prescriptive use of the easement by arguing that a special relationship existed between the parties, based on the express easement over the Goodchild Property. They therefore contend that the Aragis carry the additional burden of showing that their additional use of the easement to access properties beyond the 100-acre parcel constituted a shift from a permissive use to an adverse use. See Lawrence v. Concord, supra, 439 Mass. at 424; Begg v. Ganson, 34 Mass. App. Ct. 217 , 220 (1993). This argument is misplaced. The Aragis only possess an express easement to access the 100-acre parcel, and only the use of the easement for that purpose can be deemed permissive. It is undisputed that the Aragis did not at any point have permission to access other parcels of land by passing over the easement, and neither the plaintiffs nor their predecessors ever granted permission for the defendants to access other parcels. The Aragis never had permission to access the parcels of land that are contiguous to the 100-acre parcel; their use of the easement to access those parcels was always non-permissive, and, as I have found, was done with the knowledge and acquiescence, of the owner of the servient estate. This is distinguishable from Begg v. Ganson, where the plaintiff had an agreement with the defendants to live on property and share use of the land, but the plaintiff eventually violated the terms of the agreement and his use allegedly became adverse. 34 Mass. App. Ct. 217 , 220 (1993).

In Begg, the plaintiff, a stable master, entered into a written agreement with beneficiaries of various family trusts allowing him to reside in a stable rent-free after the owner of the property died. 34 Mass. App. Ct. at 217-218. The agreement restricted the plaintiff's access to specific parcels of land, to be determined by the decedent's widow who still resided on the property, and further restricted the plaintiff from making changes to the premises. Id. at 218. Over thirty years later, the trustees asked the plaintiff to vacate the premises and the plaintiff refused, claiming ownership by adverse possession on the basis that he violated the terms of the agreement, turning his use from one that was permissive to one that was adverse. Id. The court held that "[w]here a use begins in explicit permission, particularly one such as this that is nonexclusive, indefinite in time, and flexible in extent, there is and should be a heavy burden on the lessee or licensee to show by clear evidence that the use has shifted at some point from permissive to adverse, so as to put the owner on clear notice that he should take steps to protect his rights." Begg v. Ganson, supra, 34 Mass. App. Ct. at 221. The Begg court made a point to distinguish that the use was "nonexclusive, indefinite in time, and flexible in extent," resulting in the heavy burden on the plaintiff claiming adverse use. Id. at 221. Here, there was no agreement for use of parcels other than the easement for the benefit of the 100-acre parcel, and to the extent that the Aragis' use went beyond that, it was non-permissive and the Goodchilds and their predecessors had notice of this use. Furthermore, the Aragis have established that William Conklin, Bruce Goodchild's grandfather, had actual notice of the non-permissive use of the easement for access to the contiguous parcels.

The Aragis have established that they have acquired an easement by prescription to use the easement over the Goodchild Property to access the 67-acre, 12-acre and 49-acre parcels of land. All three parcels are used to grow corn in connection with the dairy operation on the 100-acre parcel. The extent of an easement gained by prescription is "fixed by the use through which it was created." Glenn v. Poole, 12 Mass. App. Ct. 292 (1981). The Aragis prescriptive easement is therefore for the delivery of seed to the 100-acre parcel which is then planted on the contiguous parcels, and related transport of equipment, vehicles and employees over the easement for the purpose of entering on the contiguous parcels to plant, tend, harvest and transport corn for use at the dairy farm on the 100-acre parcel.

In light of the establishment of a prescriptive easement over the Goodchild Property for access to the contiguous parcels of land, I need not reach the merits of the plaintiffs' claim that the Aragis use of the easement to access the contiguous parcels of land categorically overloads the easement.

RELOCATION OF THE EASEMENT

Where the owner of a servient estate claims that an express easement unduly interferes with the use of the servient estate, the owner may seek permission from the court for the relocation of the easement, so long as its utility to the owner of the dominant estate is not destroyed. M.P.M Bldrs., LLC v. Dwyer, 442 Mass. 87 (2004). Specifically, the proposed changes in location and dimensions cannot "(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." Id. at 91, quoting Restatement (Third) of Property (Servitudes) § 4.8(3). "The rule permits the servient owner to relocate the easement subject to the stated limitations as a 'fair tradeoff for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate.'" M.P.M. Bldrs., LLC v. Dwyer, supra at 91, quoting Restatement (Third) of Property (Servitudes) § 4.8(3), comment f. If parties cannot agree on the relocation of an easement, the servient owner's remedy is to "seek a declaration from the court that the proposed changes meet the criteria in § 4.8(3)." M.P.M. Bldrs., LLC v. Dwyer, supra at 93. The entire expense of relocating or changing the easement falls to the servient owner. Id. at 92.

The Goodchilds propose to relocate the part of the easement roadway closest to Hewins Street by turning the last approximately 130 feet of the roadway closest to Hewins Street to the northeast so that instead of the sweeping open angle the roadway presently has to the south, it would meet Hewins Street at a 90 degree angle, and would be twenty feet in width, with widened radii where it would meet Hewins Street to facilitate turns to the north and the south by large trucks. The relocation of this section of the easement roadway would enlarge the open area in front of the barn at the front of the Goodchild property near Hewins Street. The Goodchilds plan to use the barn and the enlarged area in front of the barn to facilitate a retail component of their turf business, by storing turf pallets in the barn and selling them to customers who would enter the area in front of the barn to pick up pallets of turf. The relocation of the roadway would also facilitate an improvement in a drainage problem causing flooding in the barn, which is at least partly due to the raised roadway on the easement.

The only engineered plan before the court depicting the proposed relocation of the easement is the 2017 Plan prepared by White Engineering for the Goodchilds. [Note 98] The 2017 Plan is a modification of a 2014 Plan that had been objected to by the Aragis, and was intended to address the Aragis' objections. It did so primarily by widening the apron where the roadway meets Hewins Street by an additional thirty feet to facilitate turns that would not require large vehicles to cross the center of Hewins Street to make the right turn out of the roadway. I also heard testimony at trial about a plan the Aragis proposed to the Goodchilds early on, but the Aragis' proposal consisted of only a rough sketch and it was not offered at trial. [Note 99] The Aragis are opposed to the 2017 Plan because it does not exactly replicate the approach angle to Hewins Street of the current easement. They assert that if the court determines that the Goodchilds are entitled to relocate the easement, the court should require that the Goodchilds replicate the current easement, in particular with regard to the generous dimensions of the right turn from the easement onto the southbound side of Hewins Street. The Goodchilds are opposed to recreation of the easement in this manner because it will require the Goodchilds to forfeit space for growing sod, and they further contend that the 2017 Plan provides an adequate turning radius for turns in either direction whether entering or exiting the easement. [Note 100]

Aragi is satisfied with the current easement and sees no reason for alterations or relocation but he offered no credible evidence that the proposed relocation would be unsafe, inadequate to properly accommodate the expected vehicular traffic, or that it would lessen the utility of the easement or interfere with the operation of the dairy farm. [Note 101] "An easement is created to serve a particular objective, not to grant the easement holder the power to veto other uses of the servient estate that do not interfere with that purpose." See M.P.M Bldrs., LLC v. Dwyer, supra, 442 Mass. at 92 (dominant estate owner "objected to the proposed easement relocation, 'preferring to maintain [his] right of way in the same place that it has been and has been used by [him] for the past 62 years'"). Allowing the holder of an easement to prevent reasonable changes in the easement's location "would render an access easement virtually a possessory interest rather than what it is, merely a right of way." Id. at 93.

The weight of the evidence does not support the Aragis' objections. In fact, the proposed relocation would be safer, by reason of increasing sight distance to the south and by improving the ability of drivers to view traffic coming from the north when turning out of the easement roadway onto Hewins Street in either direction. Furthermore, the Aragis' complaint that the elimination of the "bulge" will eliminate the ability of the easement to handle two-way traffic is belied by the evidence that it does not currently handle two-way traffic for its full length, being as little as thirteen feet wide in places. The criticism of the Aragis' expert, Sheehan, that trucks turning off the easement will have to veer to the left side of the easement, thereby interfering with two-way traffic, in order to make a turn to the south from the easement without crossing the center of the roadway on Hewins Street, is a disingenuous complaint because, as noted above, the easement does not function as a true two-way road at present, and the change will not cause any additional interference with traffic. [Note 102] In addition, trucks entering the easement from the north presently must veer to the left side of the easement as they enter, thus presently interfering with the ability of the easement to handle two-way traffic. In this respect the relocated roadway will be no less useful and functional than the present roadway.

The defendants did not offer any credible evidence to rebut the testimony of White that the proposed relocated easement roadway would maintain the utility of the easement to the defendants and would be improved in safety and usefulness for most vehicle movements, and would be within acceptable design standards for the right turn to the south onto Hewins Street. Louis Aragi acknowledged that the proposed relocation of the entrance roadway would not lessen its utility and would be in some respects improved, but simply insisted that he did not like it. Specifically, he acknowledged that the present right turn into the roadway from the north "is a tight turn." [Note 103] He acknowledged that looking to the left (north) out of the existing roadway before making a right turn onto Hewins Street is more difficult than it would be with the relocated entrance, and that the view from the relocated roadway in that respect would be safer. [Note 104] He also acknowledged that vehicles presently have to wait sometimes at the entrance of the roadway because it is not wide enough for two-way traffic at the entrance, thereby acknowledging that a similar constraint under the proposed configuration will not lessen the utility of the easement in this respect. [Note 105] He further acknowledged that a condition he complains of with respect to the proposed relocated roadway, that trucks turning right onto Hewins Street from the driveway will have to swing over to the left side of the roadway to make the turn, is the same as the present condition for trucks turning right into the roadway from Hewins Street, which have to swing to the left side of the roadway to enter. [Note 106] He also acknowledged that the proposed relocated roadway is safer than the existing condition, and that left turns out of the easement roadway and right turns into the easement roadway will be easier with the reconfigured roadway. [Note 107]

Thus, on all the evidence, I find and rule that the proposed relocation of the easement roadway, as depicted on the 2017 Plan, will not significantly lessen the utility of the easement, nor will it increase the burdens on the Aragis in its use and enjoyment, or frustrate the purpose for which the easement was created.

NUISANCE

In Count III of their second amended complaint, the Goodchilds allege that the Aragis' elevation of and other improvements to the roadway on the easement have resulted in an unnatural water flow onto the Goodchild property, constituting a nuisance. They seek recovery for the damage to their property from the nuisance. Although the Goodchilds' nuisance claim sounds in tort and as such, this court lacks jurisdiction to consider the nuisance claim, in appropriate circumstances the court may exercise ancillary jurisdiction over a claim for which it does not ordinarily have jurisdiction provided the claim is sufficiently related to the claims properly being tried before the court. See Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 301 (2008) (where Land Court "could properly entertain the requests for equitable and declaratory relief" it may, "in a proper case, include the award of damages"). As the damage claimed by the plaintiffs is alleged to arise solely from the improvements by the Aragis to the roadway on the easement, it is appropriate for the court to accept ancillary jurisdiction of the damage claim.

"[A] private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his own property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another." Asiala v. Fitchburg, 24 Mass. App. Ct. 13 , 17 (1987). Liability in an action for nuisance "should be based upon a determination that the interference is intentional and unreasonable or results from conduct which is negligent, reckless or ultrahazardous." Ted's Master Serv., Inc. v. Farina Bros. Co., 343 Mass. 307 , 312 (1961).

The Goodchilds carry the burden of showing that the Aragis caused substantial and unreasonable interference with use and enjoyment of the Goodchild Property. The Goodchilds argue that the Aragis have created a nuisance through their maintenance of the easement, particularly their conduct in widening the roadway on the easement and increasing the height of the roadway on the easement over time without making any provision for proper drainage of surface water runoff. Specifically, Bruce Goodchild alleges that Louis Aragi's placement of a layer of asphalt millings on the easement has created a more impervious surface, thus increasing the drainage from the easement roadway to the Goodchild Property, which results in flooding of the barn. [Note 108] It is permissible for the owner of a dominant estate to make necessary repairs to an easement. Glenn v. Poole, 12 Mass. App. Ct. at 296. "Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to the enjoyment of the easement." Id. However, "[u]nless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment." Restatement (Third) of Property (Servitudes) § 4.10 (2000).

Louis Aragi concedes that some drainage can be attributed to the right of way, but contends that the Goodchilds have contributed to the drainage issues affecting the barn. He testified that the Goodchilds have placed quarry stone around the rear of the barn and as a result the elevation has changed such that water will flow toward the barn. [Note 109] While conceding that water will flow from the highest elevation--which he agrees is the roadway on the easement--to the lower areas around the barn, Louis Aragi pointed out that water also drains from the roof of the barn and asserts that the quarry stone around the barn serves to contain water runoff from the roof, contributing to the flooding affecting the barn. [Note 110] Despite acknowledging the easement roadway's high elevation, Aragi does not accept any responsibility for the flooding in the Goodchild barn. [Note 111] He further contends that regardless of whether the easement is topped with gravel or asphalt, water would still drain from the easement. [Note 112] The Aragis further argue that the Goodchilds have failed to provide a causal connection between their improvements to the easement and the flooding in the barn, based on the fact that the barn roof has leaked for 10 to 15 years and the land on the Goodchild Property also has been raised around the barn.

While Bruce Goodchild testified that the barn did not flood excessively prior to 2006, I do not find that the barn never flooded prior to 2006. [Note 113] My view of the barn and the nearby roadway easement confirmed and amplified both the testimony that some of the damage likely comes from the roadway, as it is located close to the rear of the barn and there is no provision for directing runoff away from the barn, and the testimony that the barn likely has other water problems unrelated to the roadway, including as a result of gaps in the roof. On the whole, the testimony established a causal connection between surface water runoff from the easement roadway, and at least some of the flooding in the barn.

In a nuisance action, "where damage to real property is not permanent, the measure of recovery is the reasonable expense of repairing the injury plus the intervening loss of rental value for the period reasonably needed to repair the injury." Rattigan v. Wile, 445 Mass. 850 , 861 (2006), quoting Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332 , 337 (1993). "If the injury [caused by the nuisance] is continuous but subject to termination by the later act of the wrongdoer, the measure [of damages] is the lessened rental value while the injury continues." (citation omitted) Schleissner v. Provincetown, 27 Mass. App. Ct. 392 , 396 (1989), overruled on other grounds by Morrissey v. New England Deaconess Ass'n—Abundant Life Communities, Inc., 458 Mass. 580 (2010).

The Goodchilds concede that they have not presented any evidence of either the costs of repair or the loss of rental value for the period during which the nuisance has existed. Accordingly, the Goodchilds are not entitled to an award of damages for property damage to the barn caused by water infiltration resulting from the elevated roadway on the easement. To the extent they are entitled to abatement, or to the cost of abating the nuisance, their claim runs into the paradox that the cost of relocating the roadway, which will have the effect of abating the nuisance, is theirs alone to bear under M.P.M.

CONCLUSION

For the reasons stated above, judgment will enter for the plaintiffs on their claim for relocation of the easement pursuant to M.P.M. Bldrs., LLC v. Dwyer, supra; judgment will enter for the defendants on the plaintiffs' claim for overloading of the easement; judgment will enter for the defendants on the plaintiffs' claim for nuisance damages; and judgment will enter for the defendants on their counterclaim for a prescriptive easement for access over the easement to the contiguous parcels.