MISC 16-000436

July 24, 2018

Barnstable, ss.



Plaintiffs want to relocate an express easement (Existing Easement) located on their residential property on Eel River Road in Osterville. Defendants, who own separate adjacent properties, are the holders of easement rights in the Existing Easement, which provides both benefitted properties with their only vehicular access to Eel River Road. Plaintiffs initiated this action on August 2, 2016, seeking the court's declaration pursuant to G. L. c. 231A, that they may relocate the Existing Easement to a new location (Proposed Easement) in accordance with the criteria set forth in Restatement (Third) of Property (Servitudes) § 4.8(3) (2000) (Restatement), as adopted by the Supreme Judicial Court in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Defendants' asserted a counterclaim, in which they seek declaratory relief that Plaintiffs are not entitled to relocate the Existing Easement over their objections because the proposal does not satisfy the criteria of the M.P.M. Builders case. [Note 1]

After five days of trial held in November and December 2017, informed by a view of the parties' properties and the adjacent Eel River Road neighborhood, this court finds and rules Plaintiffs do not have the right to relocate the Existing Easement over Defendants' oppositions, because the Proposed Easement does not satisfy the requirements of M.P.M. Builders.

This case was largely presented through expert testimony proffered by both sides. Plaintiffs, who bear the burden, presented their case through Angela Tanner, a landscape architect; Thomas Bunker, a civil engineer; Patrick Dunford, a traffic engineer; and Brian Florence, the Town of Barnstable Building Inspector. Defendants responded with Steven Fournier, a civil engineer; Jeffrey Dirk, a civil engineer specializing in traffic issues; and Daniel Shaughnessy, general manager of Joyce Landscaping, the company providing maintenance and snow removal services to the Uehleins. Plaintiff Pamela Randon and Defendant W. Frederick Uehlein gave lay testimony. Forty-two exhibits, including photographs and plans, were entered in evidence. At the close of Plaintiffs' case, Defendants moved for a directed finding. The court allowed Plaintiffs to file an opposition and took the motion under advisement, and now denies the motion.

The facts set forth below include the joint material facts from the summary judgment record as well as stipulated facts, in addition to the facts established at trial through testimony and documentary evidence and the reasonable inferences drawn therefrom, all as informed by observations at the view. A sketch is attached to this decision which depicts the locations of the parties' properties including the locations of the Existing and Proposed Easements (Sketch A). [Note 2]

Plaintiffs and Their Property

1. Plaintiffs own a single-family residence located at 117 Eel River Road in Osterville (Randon Property), under a deed dated September 11, 2013, recorded with the Barnstable County Registry of Deeds (Registry) in Book 27726, at Page 5, and registered as Document No. 1,231,947, with the Barnstable County Registry District.

2. The Randon Property comprises two parcels: registered land shown as Lot 9 on Land Court Plan 3145-Z, and recorded land shown as Lot 9C on a plan of land titled "Plan of Land in Barnstable (Osterville), Mass. for Dorothy B. and John W. Rowland, Scale: 1" = 40', November 19, 1985, Baxter & Nye, Inc., Registered Land Surveyors & Civil Engineers, Osterville, Mass," recorded in Plan Book 415, at Page 92.

3. The Randon Property is approximately 3.5 acres, and is located in an RF-1 zoning district. The primary use allowed as-of-right in an RF-1 district is single-family residential use. The minimum buildable lot area required in an RF-1 district is 43,560 feet.

4. The Randon Property is improved by a one-story single-family house, a two-car garage, and a guest cottage. The two-car garage is located on the north side of the Randon house, in part between the house and the Existing Easement and is connected to the house by an unheated breezeway. The guest cottage is located to the south of the house, and is approximately 160 feet from the Existing Easement. The Randons reside in Connecticut and have used the Randon Property primarily as a seasonal vacation home.

5. The Randons have no current concrete plans to renovate their house or change the relative location of the structures on their property. They are considering adding on to their existing home and to the garage, but they have not developed any renovation or expansion plans with a builder or architect. To date, the Randons have not sought any permits or approvals for any development on their property. Given the location of the Existing Easement, and the placement of the house on the Randon Property, it is unlikely that the Randons would construct any structures or expansions of their house would require them to alter the location of the Existing Easement. While they have developed "conceptual" plans with an architect for an expansion of their guest cottage, such work does not implicate the relocation of the Existing Easement.

Defendants and Their Properties

6. Defendants W. Frederick Uehlein and Diana Uehlein are Trustees of 109 Eel River Road Nominee Trust (Uehleins), under u/d/t dated June 2, 2006, and are the record owners of property located at 109 Eel River Road in Osterville (Uehlein Property) under deed registered as Document No. 1,035,400 (Certificate of Title No 180233). The Uehlein Property, made up of Lot 1 on Land Court Plan 3145-V and Lot 2 on Land Court Plan 3145-V, abuts the Randon Property to the south and west and the Ladd Property to the northeast.

7. The Uehlein Property is improved by two structures: a main house, where they live, and a guest house (Guesthouse). Prior to 2007, what is now the Guesthouse was the main house on the Uehlein Property. It was moved to the southeast corner of the property and converted to the Guesthouse, after which the Uehleins constructed their current residence approximately where the Guesthouse had been located. The rear yard and patio of the Guesthouse are approximately seventeen feet from the property line they share with the Randons, where the Randons plan to locate the Proposed Easement.

8. The Ladd Property, so-called, is shown as Lot D28 on Land Court Plan 3145-T. [Note 3] It is registered land owned by the Trustees of the Eel River Road Realty Trust, u/d/t dated May 16, 1997, and is located at 105 Eel River Road.

Eel River Road

9. Eel River Road is a two-lane public way with a twenty-foot wide paved travel way and shoulders on each side, approximately six inches wide, set off by white lines. It is settled with residential properties. There is no posted speed limit, but the speed limit is thirty miles per hour. [Note 4] The travel lanes have a north and south alignment, with the northern lane running from the parties' properties toward Osterville Center, and emergency services such as the fire department and EMT.

10. The current stopping sight distance for the intersection of Eel River Road and the Existing Easement is less than the 200 feet recommended by the American Association of State Highway Transportation Officials (AASHTO). [Note 5]

The Express Easement and Title Matters

11. The Randons purchased the Randon Property subject to the rights of the owners of both the Uehlein Property and the Ladd Property to use the Existing Easement. The deed into the Randons, dated September 11, 2013, recorded with the Registry in Book 27726, at Page 2, referenced the Existing Easement by the following language:

"…Lot 9 is subject to easements of way running in favor of the owner or owners of Lots D22, D24, D25[,] D26 and D28 (now Lot D28, Land Court Plan 3145-T, Lot 1 . . . Land Court Plan 3145-U and Lot 2 . . . Land Court Plan 3145-V) for free ingress and egress from said lots in, over and upon the Right of Way 30 feet in width extending from Eel River Road in a southwesterly direction to said lots and the above described lots are subject to all restrictions and all conditions of record affecting them as the same may now be in force and applicable."

At some point following the purchase of their property, the Randons approached the Uehleins about the possibility of relocating the Existing Easement. Despite discussions between them, no agreement was reached.

12. The Existing Easement was created by a registered deed dated February 11, 1949, filed as Document No. 23,583, conveying what is shown as Lot D22 [Note 6] on Plan 3145-O, from Ellen B. Goodspeed to John W. Spellman and Helen E. Spellman. The deed describes the appurtenant easement as:

"easement of way, in common with the grantor and others now or hereafter entitled to use the same, in, over and upon the right of way leading from Eel River Road in a general Westerly and Southerly direction to the granted premises for free ingress and egress to and from said premises and the town highway. . ."

When Ms. Goodspeed created the Existing Easement, it bisected her property. Some of the property north of the Existing Easement subsequently was conveyed by Ms. Goodspeed and is now owned by the Staudts. The remaining portion of the Goodspeed property is the Randon Property.

13. By deed dated July 5, 1949, registered as Document No. 24,263, an additional lot, Lot D24, was created and granted, in relevant part, "[t]ogether with an easement of way . . . in, over and upon the right of way . . . being a similar easement as that contained in a previous deed to these grantees of Lot D22."

14. The location and layout of the Existing Easement is shown on a plan dated March 15, 2017, showing the Existing Easement and the Proposed Easement, prepared for the Randons by Jenick Studio, a landscape architecture firm (Proposed Plan). Ex. 13. [Note 7]

The Existing Easement

15. The Existing Easement connects to Eel River Road at the northeastern property line of the Randon Property. From that point, it runs along the northerly boundary of the registered portion of the Randon Property (Lot 9 shown on Land Court Plan 3145-Z) for approximately seventy feet before connecting to the entrance of the portion of the driveway leading to the Randons' two-car garage.

16. The Randons' driveway is a semi-circle located in front of their house and includes a parking area. The semi-circle driveway has two curb cuts onto Eel River Road, both labeled "Existing Driveway Entrance" on the Proposed Plan. Driving in a southerly direction from Eel River Road, the first curb cut is located at the northeast corner of the Randon Property, providing the entry to the Existing Easement and the second curb cut is located approximately 180 feet further south.

17. The Existing Easement is the sole means of access to Defendants' two properties. In its existing state, it is a level path throughout its length, with a grade of 2% or less, with no significant curves or turns and runs for approximately 525 feet in length. It is approximately thirty feet wide, but only a portion of the width is paved, varying from nine to twelve feet. There are no defined shoulders. The condition of the pavement varies from relatively "good" between Eel River Road and the Open Area (defined below), where the condition of the pavement is cracked and rutted. The cracked and rutted area represents about 20 % of the length of the Existing Easement.

18. The Existing Easement divides the upland area of the Randon Property from the waterfront portion of the property, requiring the Randons and their guests to walk across the Existing Easement in order to access the portion of the yard adjacent to West Bay. A dense area of vegetation is located between the Randons' garage and the Existing Easement. Trees and shrubs also border approximately the first 225 feet of the paved portion of the Existing Easement, but then there is a break in the vegetation, with an open area extending for the next 75 feet (Open Area). Vegetation begins again on the other side of the Open Area and ends at the connection to the Uehlein and Ladd Properties. The sideline of the Existing Easement is approximately fifty feet from the Uehlein's Guesthouse.

19. The Open Area is the area where individuals cross the Existing Easement when they walk from the Randon home to the waterfront portion of the Randon Property. From the Open Area, views in all directions are unobstructed for pedestrians crossing the Existing Easement, with sight lines of at least 125 feet up and down the Existing Easement, toward Eel River Road and Defendants' properties. The view could be improved along the Existing Easement if the heavy shrubbery were trimmed, but there are no obstructions to the view within the travelled way for pedestrians who are crossing or for vehicles driving along the Existing Easement. The Open Area is fully visible to people in the Randon backyard.

20. There are no drainage structures constructed within or adjacent to the Existing Easement, but rain water and melting snow drain naturally and adequately onto adjacent grassy or wooded areas.

21. A fire hydrant is located on the northern side of the Existing Easement, just to the side of the paved portion of the Existing Easement, approximately three hundred feet from its connection to Eel River Road. A water line beneath the Existing Easement runs from Eel River Road to the fire hydrant. [Note 8]

The Proposed Easement

22. In December 2013 and January 2014, Angela Tanner, a landscape architect, prepared for the Randons concept sketches for significant landscaping of the Randon Property, including the relocation of the Existing Easement. [Note 9] The sketches show the Proposed Easement located on the south side of the Randon Property, running west along the Randon Property's southern boundary, turning ninety degrees upon reaching the Uehleins' boundary line, and running north along the Uehleins' boundary line until it rejoins the area of Existing Easement. The Proposed Easement then turns sharply to the west to continue along the same route as the Existing Easement toward its connection to the driveways of Defendants' properties. [Note 10] (The turns within the Proposed Easement are further discussed below in paragraph 25).

23. The Proposed Easement's intersection with Eel River Road is approximately 250 feet south of the point where the Existing Easement meets the road, and approximately forty feet from the southern curb cut of the Randon's circular driveway onto Eel River Road. The Proposed Easement also meets Eel River Road across from a driveway of another residence located to the east, on the other side of the road.

24. A large evergreen tree and other vegetation is located on abutting property next to the entrance of the Proposed Easement, and serves as a partial visual obstruction for a car exiting the easement and turning north on Eel River Road.

25. The Proposed Easement is approximately 600 feet, approximately 75 feet longer than the Existing Easement, with a paved travel lane twelve feet in width. It will have an additional hard grass shoulder of three feet on each side, for a total width of 18 feet.

26. The Proposed Easement has two curves. The first curve has a sixty-foot inner radius and is located near the southeast corner of the Uehlein Property, where it borders the Randon Property. The second curve, which has a forty-two foot radius, is located near the connection of the Proposed Easement to the Uehlein and Ladd driveways. Over its length, the Proposed Easement has two pullouts near the two curves to allow vehicles to pass each other, and to help larger vehicles negotiate the turns. The pullouts are approximately 9.5 feet by 20 feet. The sightlines at both curves result in diminished sight lines when compared with the Existing Easement. The turn from the Proposed Easement into the driveway for the Uehlein Guesthouse has a 15-16 foot radius and is in effect a U-turn when turning off the Proposed Easement into that driveway.

27. The Proposed Easement is located approximately 17 feet from the living areas of the Uehlein Guesthouse, and approximately one foot from the rear yard of Guesthouse, which currently comprises a patio and outdoor recreation space.

28. The Proposed Easement includes drainage structures, specifically at-grade case-iron grates leading to subsurface catch basins and subsurface leaching chambers. To catch storm water runoff, drainage facilities are to be located at both ends of the Proposed Easement. The Randons will pay for the construction and maintenance of the proposed drainage facilities as part of the relocation proposal.

29. Because the Proposed Easement is longer, and includes more paved surface area due to the wider paved area and pull-outs, snow removal costs will increase. The area to be plowed increases approximately 25% over the Existing Easement. The Proposed Easement's curves will also add difficulty for snow removal, compared to snow removal from the Existing Easement, which is flat and has only one slight bend and one gentle curve.

30. Defendants are responsible for paying for snow removal on the Existing Easement, and will continue to be responsible for those costs associated with the Proposed Easement.

31. The Proposed Easement has vertical curves in addition to the two horizontal curves discussed above. Along the length of the Proposed Easement, the grade ranges from a low of 1.3 to a high of 3.38%. The slope of the two internal curves will be less than 2%.

Additional Components of the Proposed Easement [Note 11]

32. The Randons have committed to completing landscaping work in connection with the Proposed Easement, at their expense. The final landscape plan prepared for them, while not shown on the Revised Plan, is depicted in Exhibit 32, completion of the landscaping depicted on the exhibit incorporated in the Proposed Easement. As shown on the plan, the landscaping includes the removal of 48 trees of 12 inches or more diameter on the Randon Property and the planting of a row of evergreen trees to provide screening between the Proposed Easement and the Uehlein Guesthouse.

33. As part of the Proposed Easement, the Randons plan to relocate the existing utility lines currently underneath the Existing Easement to a location underneath the Proposed Easement. They also plan to replace and relocate the existing two-inch water service from the fire hydrant to Defendants' properties with a six-inch water line, connected to a relocated fire hydrant, though they do not yet have permission from the Town to relocate the existing fire hydrant or the water line.

* * * * *

In M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), the Supreme Judicial Court defined the rights of servient and dominant estate owners with respect to the relocation of express easements. In recognizing the long-established general rule in Massachusetts that the "owner of real estate may make any and all beneficial uses of his property consistent with the easement," the Court expressly included within that general right the specific right to "make reasonable changes in the location or dimensions of an easement at the servient owner's expense, to permit normal use 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., 442 Mass. at 90, quoting Restatement § 4.8(3). By adopting the Restatement, the Court sought to strike a balance between the rights of dominant estate owners to enjoy the benefits that come with holding easement rights in and over the land of another with the servient estate owners' rights to use their property to the fullest extent, so long as their use does not interfere with the dominant estate holders' enjoyment.

In this case, there is no dispute that an express easement over the Randon Property exists in favor of Defendants, and the sole question is whether the Proposed Easement satisfies the requirements of the Restatement. This court rules it does not, and therefore Plaintiffs do not have the right to replace the Existing Easement with the Proposed Easement.

The deed creating the Existing Easement clearly and unambiguously sets forth its scope and purpose as "an easement of way . . . over and upon the right of way leading from Eel River Road . . . to the [Defendants' properties] for free ingress and egress to and from said premises and the town highway." The Existing Easement cuts across the Randon Property, dividing the bulk of the upland property from its waterfront portion. The Randons, who purchased their property with the Existing Easement in place, both as a matter of record and on the ground, now wish to relocate it so that it partially runs along their southern boundary and eliminates the Existing Easement from their view of the water from the upland portion of their property, and allows pedestrian access to the water from their house without having to cross the Existing Easement.

Defendants first argue relocation of the Existing Easement should be denied because Plaintiffs failed to demonstrate the relocation is necessary to permit the "normal use or development" of their property. Defendants claim the relocation must be tethered to evidence that the Existing Easement somehow prevents or interferes with such normal use or development. In their view, because Plaintiffs failed to establish this prerequisite, the court need not consider whether the Proposed Easement will lessen the easement's utility, increase its burdens on the dominant estate, or frustrate the easement's purpose. They point to the fact that the Randon Property is located in an RF-1 zoning district in which the primary permitted use is single-family residential. It has been, and currently is, used for that purpose, demonstrating that the Randons have the full benefit of their property without interference caused by the Existing Easement. Based on the trial evidence, this court agrees the Existing Easement does not interfere with the "normal use" of the Randon Property.

Defendants also assert the Existing Easement does not interfere with the normal "development" of the Randon Property because Plaintiffs have sufficient acreage not affected by the Existing Easement available for building, and the Randons have not proven they desire to develop their property in a way that requires its relocation. The court agrees with this as well, based on the credible evidence at trial. The Existing Easement runs between the waters of West Bay and both residential structures on the Randon Property. It is highly unlikely that the Randons would choose to construct anything in a location that would obstruct their own view of the water from their residence or adjacent patio and lawn area. To the extent Ms. Randon equivocated on that point or testified otherwise, this court did not credit her testimony.

In adopting Section 4.8 (3) of the Restatement, the M.P.M. Builders Court acknowledged that the Restatement "strikes an appropriate balance between the interests of the respective estate owners by permitting the servient owner [here, the Randons] to develop [their] land without unreasonably interfering with the easement holder's rights [here, Defendants]." Where there is no interference with either "normal use or development," as is the case here, there is no need to balance the respective rights of the servient and dominant estate holders. The analysis could end here, but the case was fully tried and facts found which inform the rest of the M.P.M. analysis, also favorably to Defendants. This court finds and holds the Proposed Easement will lessen the utility of the Existing Easement to Defendants, and increase the burdens on them. Plaintiffs' proposal therefore fails for those reasons as well.

"The owner of a servient estate over which an easement for passage runs may not make 'any change in its grade or surface, which makes the way less convenient and useful to any appreciable extent to anyone who has an equal right in the way.'" Martin v. Simmons Properties, 467 Mass. 1 , 20 (2014), quoting Killion v. Kelley, 120 Mass. 47 , 52 (1876). "[R]elocation can fail the [M.P.M.] test where the route is longer, the burden of maintenance increases, the surface and topography differ, the burden on the easement holder increases, and the utility of the easement materially lessens." Rhodes v. Decas, 19 LCR 410 , 412 (2011) (Misc. Case No. 352101) (Long, J.).

As discussed above, several of those factors are present here. The Existing Easement is approximately 525 feet long and the Proposed Easement is approximately 600 feet, which represents an increase in length of approximately 14%. [Note 12] The Existing Easement is relatively level and substantially straight with one slight bend, running between Eel River Road and its endpoint at the Ladd Property. The Proposed Easement has two sharp, banked curves described by Defendants' traffic engineer as "serpentine," with vertical as well as horizontal variation. Lengthening the route of an easement has been found to increase the burdens on the dominant owner, in terms of maintenance and repair. See Restatement § 4.8(3), Illustration 5 (stating that a relocated easement that is, among other things, longer than the existing easement, increases the burdens on the dominant owner, prohibiting the easement's relocation without consent). The addition of two sharp curves also lessens the easement's utility and increases the burden, as Defendants previously could reach their properties on a relatively straight and direct route from Eel River Road. The Proposed Easement will require them to deal with two curves with reduced visibility.

The Existing Easement currently has no drainage structures that require maintenance, or even monitoring, to ensure they are unobstructed. This court credits Mr. Uehlein's testimony that the passage along the Existing Easement has not been affected by drainage problems. Even though the Randons have committed to maintaining the drainage system, maintenance of the drainage structures as well as arranging for the scheduling of maintenance or repairs, will necessitate increased communication and negotiation between Plaintiffs and Defendants, which will be a further burden on Defendants.

Finally, the entrance to the Proposed Easement is relocated approximately 250 feet south of the entrance to the Existing Easement and is opposite a driveway on the other side of Eel River Road. Visibility at the proposed entrance currently is partially obstructed (to the south) by an evergreen tree and other vegetation located on an abutting property. Plaintiffs assert this tree can be trimmed pursuant to G. L. c. 87, as a "public shade tree" within or on the boundaries of a public way, but provided no evidence that the town is willing to undertake this step, or that the tree itself is within or on the boundary of Eel River Road. [Note 13]


For the above reasons, this court holds that Plaintiffs are not entitled to relocate the Existing Easement to the location of the Proposed Easement as proposed.

Judgment to enter accordingly.

exhibit 1

Decision Sketch


[Note 1] Pre-trial, Plaintiffs moved for partial summary judgment on two legal issues raised by Defendants in their answer and counterclaim. The only issue decided by the court at that stage was whether the Existing Easement constituted a "street" or "way" within the meaning of the subdivision control law or local subdivision rules and regulations, requiring full review and approval by the Barnstable Planning Board for a lawful relocation. That issue was raised early to put to rest whether the Planning Board should be joined in this action. By Order dated October 26, 2017, this court determined that the Existing Easement was not a "street" or "way" under the subdivision control law or local bylaws.

[Note 2] Sketch A is based on Exhibits 13 and 14, but has notations on it made by the court.

[Note 3] When this case began, Defendants included Elizabeth Kiley-Ladd and Douglas E. Hart as Trustees of the Eel River Road Realty Trust. Elizabeth Kiley-Ladd passed away during the pendency of the case and no successor trustee had been named by the trial. Throughout the trial proceedings, the parties referred to the property as the Ladd Property.

[Note 4] According to the credited testimony of Defendants' civil engineer, who cited to G. L. c. 90, § 17, to determine the "prima facie" speed limit on Eel River Road near the parties' properties.

[Note 5] AASHTO standards for roadway, highway, and intersection design are generally accepted in the transportation field.

[Note 6] Lot D22 was a new lot, part of which would become the Uehlein Property.

[Note 7] A revised proposed plan, revised June 22, 2017, was entered as agreed Exhibit 14 (Revised Plan).

[Note 8] The Randons have offered to move the fire hydrant as part of the relocation of the Existing Easement, if required by the Town water or fire departments. They currently do not have permission to relocate the hydrant or the water line connected to the hydrant.

[Note 9] See Exhibits 13 and 14 for depictions of the Existing and Proposed Easements, which track Ms. Tanner's sketches.

[Note 10] . The sketch attached to this decision show both the Existing Easement and the Proposed Easement, as finally proposed, and the point where the Proposed Easement overlaps the area where the Existing Easement passes from the Randon Property to the Ladd Property and provides access to Defendants' driveways.

[Note 11] It is not clear to the court whether, or to what extent, the "Final Landscaping Plan" was part of the proposal presented to any of Defendants pre-trial. The testimony on that point was simply not clear. However, the work depicted on Exhibit 32 and the representations made by Ms. Randon at trial with respect to landscaping and relocation of utility lines, as well as the water line, if permitted by the Town, would bind Plaintiffs to complete such work at their expense as part of the Proposed Easement. The court includes that work in the Proposed Easement for analysis under M.P.M.

[Note 12] The parties did not agree on the exact length of either easement, and none of the plans in evidence establish the length of either Proposed Easement with precision. The court's findings as to lengths of the easements are based on a combination of scaling the lines drawn on the several plans, and the testimony of both parties' experts.

[Note 13] Plaintiffs maintain that with the removal of the evergreen tree the sight distances at Eel River Road from the Proposed Easement will improve over the current sightlines from the Existing Easement. However, as noted above, there was no evidence at trial that this tree can be removed by the Randons since it is not on their property.