ANN T. SAVOIE v. ARTHUR H. ZANIBONI and DELORES A. ZANIBONI

Introduction

Plaintiff Ann T. Savoie ("Ms. Savoie") owns and resides at the property at 47 Fore River Avenue, Weymouth, Massachusetts ("the Savoie Property"). Verified Complaint For Injunctive Relief And Declaratory Judgment ("Complaint") ¶ 1 and Ex. A. Defendants Arthur H. Zaniboni and Dolores A. Zaniboni ("the Zanibonis") own and reside at the property at 43 Bicknell Road, Weymouth, Massachusetts ("the Zaniboni Property"). Complaint ¶ 2 and Ex. B. The Savoie Property abuts the Zaniboni Property along the Savoie Property's rear, southerly, border and abuts a "private way" ("the Way") along its easterly border that is the subject of the instant dispute. Complaint Exs. A and R. The Savoie Property and the Way abut Fore River Avenue, which in turn abuts a body of water, presumably the Fore River.

Ms. Savoie filed a verified complaint on December 24, 2018 alleging, under a variety of theories, that she owns the fee in the Way and that the Zanibonis, by constructing a fence along the Way as it abuts Fore River Avenue, have wrongfully interfered with her ownership of the Way. [Note 1] Ms. Savoie also claims that the Zanibonis' fence interferes with the right to pass and repass over the Way as granted by an express easement in Ms. Savoie's chain of title. Ms.Savoie filed Plaintiff's Motion and Memorandum In Support Of Issuance Of Preliminary Injunction on March 18, 2019, along with the Affidavit Of Ann T. Savoie ("Savoie Affidavit"). In that motion, Ms. Savoie sought a mandatory injunction requiring the Zanibonis to remove the fence and stop interfering with her use of the Way. Defendants' Opposition To Plaintiff's Application For A Preliminary Injunction and the Affidavit Of Arthur H. Zaniboni And Dolores A. Zaniboni ("Zaniboni Affidavit") were filed on March 29, 2019. A hearing was held on the motion on April 3, 2019, at which counsel for both parties appeared. For the reasons stated in open court and as set forth below, the motion for preliminary injunction is ALLOWED.

Discussion

The following facts appear from the verified complaint, the Savoie Affidavit and the Zaniboni Affidavit.

The Savoie Property has been in Ms. Savoie's family since June 26, 1950, when it was acquired by her great aunt. Complaint ¶¶ 3-6, 26, Exs. C-E. Ms. Savoie's parents acquired it by deed dated March 10, 1952. Complaint ¶ 4 and Ex. C. Ms. Savoie acquired the Savoie Property from her parents by deed dated November 3, 1978. Complaint ¶ 1 and Ex. A. The first deed in Ms. Savoie's chain of title, from Frederick Cate to Flora D. Easterbrook in 1901 ("the 1901 Deed"), and every deed thereafter, describes the Savoie property as bounding easterly by a "private way." Complaint ¶ 9 and Exs. A, C-H. In addition, the 1901 Deed grants the "right to pass and repass with teams or otherwise over said private way at any and all times."

Ms. Savoie was born on February 26, 1950 and has lived the majority of her life at the Savoie Property. Complaint ¶ 21. She raised her two children, born in 1969 and 1970, at the Savoie Property. Complaint ¶ 22.

There is a four foot chain link fence, installed by the Zanibonis' predecessor in title at least 68 years ago, which separates the Zaniboni Property from the Savoie Property and from the Way as it abuts the Savoie Property ("the Old Fence"). Complaint ¶ 28. While installed by a predecessor to the Zanibonis, Ms. Savoie and her family have maintained the Old Fence throughout Ms. Savoie's life. Complaint ¶ 27.

In addition, Ms. Savoie and her family have used the right of way for ingress and egress to a door located on the side of Ms. Savoie's house abutting the Way, have cut the grass, maintained the landscaping, including trimming shrubs and trees, removed debris washed ashore during storm surges over the past 68 years, removed snow, and parked cars on the Way. Complaint ¶ 27. There are a number of photographs in the record, including those at Complaint Exs. S-V, showing the use and maintenance of the Way by members of Ms. Savoie's family over the years, starting in the 1950s. According to the Savoie Affidavit, Ms. Savoie uses the way to park her car, to unload groceries, to transport kayaks and other things, including lawn mowers and barrels of yard waste, from the Savoie Property. She and her family have used the Way exclusively for at least the last 25 years. Savoie Aff. ¶ 5. Ms. Savoie could not recall a single occasion when anyone used the portion of the Way to which she claims title prior to the Zanibonis in 2018. Savoie Aff. ¶ 6; Complaint ¶ 29. According to Ms. Savoie, she has treated the portion of the Way to which she claims title as though she owned it, and has never sought the consent of the owners of the Zaniboni Property to do any work with the area of the Way. Savoie Aff. ¶¶ 7, 11.

The Zanibonis acquired the Zaniboni Property by deed dated November 14, 2017 from an entity known as CV XXVII, LLC. Complaint ¶ 2 and Ex. B. CV XXVII, LLC acquired its title by virtue of a foreclosure deed dated December 13, 2016 foreclosing on a mortgage granted by Gail E. Evans and Thomas F. Dorsey. Complaint ¶ 10 and Ex. J.

On or before June 29, 2018, Ms. Savoie was advised by the Zanibonis that they intended to put up a fence to obstruct Ms. Savoie's use of the Way. Complaint ¶ 29. As a result, Ms. Savoie sent a letter to the Zanibonis on or about August 14, 2018, in which Ms. Savoie asserted that she had legal rights over the Way and that the Zanibonis should not construct their proposed fence. Complaint ¶ 30 and Ex. W. The Zanibonis nevertheless went forward and constructed a fence across the entrance to the Way as it abuts Fore River Avenue ("the New Fence"). Complaint ¶ 31.

In the Zaniboni Affidavit, the Zanibonis dispute Ms. Savoie's claim to have removed a large tree in the Way, to have installed boulders that make up a wall between the Savoie Property and the Way (although they do acknowledge that Ms. Savoie created a berm with bushes and rocks alongside her driveway), or to have maintained the four foot chain fence between the Savoie Property and the Zaniboni Property, which they found to be rusted and in bad shape when they moved to the Zaniboni Property in November, 2017. Zaniboni Aff. ¶¶ 5-7. [Note 2] In reaching its decision, the court did not consider the characterization of the rocks as "boulders" by Ms. Savoie. The court did consider Ms. Savoie's evidence regarding maintenance of the four foot chain fence, which has been in existence for decades, and did consider the photographic evidence of the large tree, which, whether rooted on the Savoie Property, the Way, or straddling the line between the two, was dropped on the Way and subsequently removed therefrom by a professional tree removal service hired by Ms. Savoie.

The Zanibonis did not provide any other admissible evidence to rebut the evidence contained in the Complaint and in the Savoie Affidavit. Counsel for the Zanibonis agreed, when asked during oral argument, that there was no evidence in the record of any use of the Way by the Zanibonis or their predecessors in title prior to the Zanibonis' construction of the New Fence.

A preliminary injunction may issue only if Ms. Savoie demonstrates (a) a likelihood of success on the merits, (b) that she faces a substantial risk of irreparable harm if the injunction is not issued, and (c) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the defendants, the Zanibonis. GTE Prods. Corp. v. Stewart, 414 Mass. 721 , 722-723 (1993); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980). In cases invoking the public interest, the moving party must also demonstrate that the requested order promotes the public interest or will not adversely affect the public. Commonwealth v. Mass. CRINC, 392 Mass. 79 , 89 (1984). That is not a factor here.

Likelihood Of Success On The Merits

Ms. Savoie has demonstrated a likelihood of success on the merits of her claim to an express right to pass and repass over the Way that has not, on this record, been lost, as well as to her claim of ownership of the fee in the portion of the Way abutting the Savoie Property by virtue of adverse possession.

Easement Rights

Ms. Savoie's right to pass and repass along the Way, by vehicle or on foot, is established by the grant in the 1901 Deed of the "right to pass and repass with teams or otherwise over said private way at any and all times." Ms. Savoie's right to use the Way includes the right to pass over the Way for its entire length and width. Guillet v. Livernois, 297 Mass. 337 , 340 (1937). See Onorati v. O'Donnell, 3 Mass. App. Ct. 739 (1975). The Zanibonis may not interfere with that right. The construction of the New Fence, even though it is constructed so as to permit access by foot, is such an interference as it prevents access by motor vehicles. See Swensen v. Marino, 306 Mass. 582 , 587 (1940) (holding that easement to pass over way "with teams and other ways" included motor vehicles, since "[w]e should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle … could not be employed at all for the means of transportation in common use by a succeeding generation."); Deacy v. Berberian, 344 Mass. 321 , 322 (1962) (holding that easement "to pass on foot or with a team" is not restrictive, and may be construed as "an easement for all purposes of ingress and egress common to a way."). Compare Clarkin v. Duggan, 292 Mass. 263 , 266 (1935) (holding that easement restricted to "for teams only" did not include motor vehicle use).

The Zanibonis argue that Ms. Savoie has abandoned her easement rights, or, alternatively, that they have been lost through obsolescence. On the record before it, the court does not find either argument persuasive. The Supreme Judicial Court addressed the issue of abandonment in Desotell v. Szczygiel, 338 Mass. 153 , 158-159 (1958):

[W]hether there is an abandonment is a question of intention. Les v. Alibozek, 269 Mass. 153 , 158. See Alvord v. Bicknell, 280 Mass. 567 , 571; Dyer v. Siano, 298 Mass. 537 , 541-542; Restatement: Property, § 504, comment c. In Willard v. Stone, 253 Mass. 555 , 561-562, it was said that the "abandonment of an easement, whether acquired by grant or prescription, cannot be found unless it clearly appears that such abandonment was intended by the owner." See Dyer v. Sanford, 9 Met. 395 , 402. The defendant concedes, as she must, that nonuse of itself, no matter how long continued, will not work an abandonment. Arnold v. Stevens, 24 Pick. 106 , 112-113. Delconte v. Salloum, 336 Mass. 184 , 188. Restatement: Property, § 504, comment d. See Am. Law of Property, §§ 8.96, 8.97.

There is no evidence of intent to abandon here. The Way has been actively used by Ms. Savoie to access the rear of her property to the present day.

Obsolescence is equally unavailing. "When a right in the nature of an easement is incapable of being exercised for the purpose for which it is created the right is considered to be extinguished." Makepeace Bros., Inc. v. Barnstable, 292 Mass. 518 , 525 (1935), citing Central Wharf & Wet Dock Corp. v. Proprietors of India Wharf, 123 Mass. 567 , 570 (1878), and Brooks v. West Boston Gas Co., 260 Mass. 407 , 411 (1927). In Makepeace, the Supreme Judicial Court found that the Land Court was warranted in finding "that the rights reserved or created … related only to the whale fishing industry, and rul[ing] that such rights were extinguished upon the disappearance of the whale fishing industry from the vicinity." Id. The facts in the record do not support a finding that Ms. Savoie's easement rights are similarly incapable of being exercised.

Adverse Possession

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Parking a car, use as a yard, and maintenance of a lawn in the context of a populated residential area, as is the case here, suffices to establish actual use. See Fleury v. Moir, 15 LCR 506 , 507-508 (2007); Lutz v. Bauman, 25 LCR 614 , 618 (Mass. Land Ct. 2017) ("Regularly parking a car, particularly when accompanied by other improvements, has repeatedly been recognized by the courts of the Commonwealth as such an act of dominion and control."). "To be open, the use must be made without attempted concealment." Foot v. Bauman, 333 Mass. 214 , 218 (1955), quoting American Law of Property, § 8.56. There is no evidence of concealment of Ms. Savoie's and her family's use of the Way in the record. "To be notorious [the] use must be known to … the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious." Id. "The continuous acts of maintaining and mowing the lawn and using the area for recreation, combined with the presence of a fence to mark the boundary between properties is sufficiently notorious in a well-populated residential neighborhood to serve as notorious use, so as to place the record title holder on notice." Fleury, 15 LCR at 508. Regarding exclusivity, the unrebutted evidence in the record is to the effect that the portion of the Way claimed by Ms. Savoie was used exclusively by Ms. Savoie and her family for at least the last 25 years. And, regarding adversity, the use of the Way in a manner indistinguishable from the rest of Ms. Savoie's yard, treated as her own and without permission, satisfies this element. See Fleury, 15 LCR at 509. [Note 3] Finally, the evidence of Ms. Savoie's and her family's use extends back decades, meeting the 20-year requirement.

The Zanibonis argue that one cannot acquire prescriptive rights in property over which one holds easement rights, citing Kane v. Vanzura, 78 Mass. App. Ct. 749 (2011). In Kane, some of the plaintiffs claimed deeded rights to use a beach on Hingham Harbor, and others of the plaintiffs claimed prescriptive rights to the beach. Id. at 750-751. The land court judge found that the deeded rights were invalid, but that some of the plaintiffs who claimed deeded rights along with the other plaintiffs had acquired prescriptive rights. Id. at 752. On appeal, the Appeals Court reversed and held that the plaintiffs' deeded rights "to use the beach and shore … for bathing, boating, and all proper forms of recreation" were valid. Id. at 757. Accordingly, as to those plaintiffs, none "may sustain a claim of prescriptive use, since their use was authorized under the 1929 instrument." Id.

Here, Ms. Savoie's easement right is one to pass and repass. Unlike the authorized use of Kane, she and her family have significantly exceeded that right for decades. Such unauthorized use, which remains adverse even where there are existing easement rights, can result in adverse possession. See Ansin v. Taylor, 262 Mass. 159 , 165 (1928) (easement holder can adversely possess underlying fee if "it … appeared from evidence inconsistent with the possession of an easement that he was claiming the title in fee," as opposed to "possession … equally consistent with the right of an easement."). See also Casey v. LaCourt Family, LLC, 23 LCR 66 , 72 (Mass. Land Ct. 2015) (noting that "if the granting document specifically limits the use of an easement to passing and repassing, there is (typically) no right to park."); Murphy v. Conway, 20 LCR 26 , 32 (Mass. Land Ct. 2012) ("A right of way connotes use of the burdened land for passage, and not for other prolonged stops to take in the vistas or to engage in recreational activities along the route.").

Irreparable Harm

Ms. Savoie risks irreparable harm if interference with her use of the Way is not enjoined and the Zanibonis risk irreparable harm if their claimed ownership of the fee in the Way is impaired by injunctive relief. Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81 , 88 (1996) ("It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land."). [Note 4] That being said, this court finds that the harm to Ms. Savoie, whose family has used the Way for decades, far outweighs any harm to the Zanibonis, for whom, with their predecessors, there is no record of any use prior to the installation of the New Fence. As set forth in the Complaint and the Savoie Affidavit, Ms. Savoie and her family have used the Way on what appears to be a near daily basis for parking, ingress and egress to the side door of her home, access to the rear of the Savoie Property for transporting a kayak, boating equipment, lawn mower and other yard equipment, and barrels of yard waste, and recreation purposes. When compared to the Zanibonis' nonuse, the balance of harm weighs strongly in Ms. Savoie's favor.

Conclusion

For the foregoing reasons, the Motion is ALLOWED and an injunction has issued as set forth in an Order dated April 3, 2019. The findings and rulings contained herein are necessarily preliminary in nature. Thus, these findings and rulings are neither intended, not should they be construed, as having any precedential weight or effect in further proceedings in this case, all of which shall be determined in the light of the evidence offered and admitted on those occasions. Should further-developed evidence or circumstances warrant, any party may move for the modification or dissolution of this order at any time.