MISC 17-000531

March 10, 2020

Bristol, ss.




At issue in this case is the use of a short, 50'-wide easement that connects a public road to the plaintiffs' 13.7 acre property in Mansfield and is that property's only means of access. More precisely, at issue is whether that easement can be used for access to a small, zoning-compliant, non-profit Montessori elementary school that plaintiff FOD LLC plans to build on that site. [Note 1] The easement is shown on the attached Ex. 1.

The defendants own the property over which the easement runs - the Murawskis on one side and the Whites on the other, see Ex. 1 - and oppose its use by such a school, based on an argument that it would be beyond the allowable scope of the easement or otherwise "overburden" it. The plaintiffs disagree that there is any such limit to the easement or that any "overburdening" would occur.

The existence, location and dimensions of the easement were established in the prior case of Perillo v. Knight, 21 LCR 339 (Mass. Land Ct. 2013), aff'd 86 Mass. App. Ct. 1107 (2014). It was created at the time the plan was approved for the subdivision in which the Murawski and White lots are located (Ex. 1) and, indeed, was a condition of the Planning Board's approval of that plan. [Note 2] All of the roads in that subdivision are 50'-wide, and all are now public. As the testimony in that prior case established (and I so find in this one), the purpose of the easement and its 50' width was to allow the Knights the ability to develop their land, [Note 3] and there were no limits or restrictions placed on the use of that easement in connection with such development. [Note 4] All that was ever said to the grantor of the easement, Nicholas Harris, or to the Planning Board reviewing the easement in connection with Mr. Harris' request for approval of his subdivision plan, was that Mr. Knight needed a 50' right of way "because he intended to develop the property at a later date" with no statement of, or limitation on, what that development might be. [Note 5] The defendants nonetheless argue that limits to the easement should be inferred, and that use by the proposed Montessori school would exceed or overburden them. The plaintiffs disagree.

The defendants initially moved to dismiss this case on the grounds that the plaintiffs needed to have approved permits in hand before the easement use was ripe for decision or could otherwise be addressed - in essence, an argument that it could only be heard in the context of a G.L. c.40A, §17 appeal. I denied the motion, ruling that the parameters of the proposed school (the number of faculty and staff, the size of the student body, the means of transportation by which they would come and go to the school, and the school's mode and hours of operation) were sufficiently established for their impacts to be known and the easement issues to be addressed in this declaratory judgment action. The case was then tried before me, jury-waived.

Based on my evaluation of the evidence, my assessment of the credibility of the witnesses, the reliability of their testimony, the appropriate weight to give that testimony, and my application of the relevant law, I find and rule as follows.


These are the facts as I find them after trial.

In the prior case, Perillo v. Knight, this court found that the plaintiffs' property, then owned solely by the Knights, had a 50'-wide easement over the defendants' properties for use as access to its site. [Note 6] See Ex. 1. As noted above, it is the only access to that site, which is otherwise landlocked. The easement runs from the end point of the cul-de-sac bordering the defendants' properties to the plaintiffs' property line, a distance of no more than 30' along the back edge of the Murawski lot and less than 5' along the back edge of the Whites'. See Ex. 1. All of the roads in the subdivision in which the Murawski and White properties are located, including the cul-de-sac, are now public roads. See id.

When Mr. Knight negotiated the easement with the subdivision developer, Nicholas Harris, he insisted that it be 50'-wide so that he would have the full ability to develop his property. The Planning Board likewise insisted on the 50' width. Mr. Harris agreed, and included it in his 1989 subdivision plan as the "50' roadway travel easement." Although a formal grant of easement was never drafted or signed, the plan which included the 50'-wide easement was approved by the Planning Board and recorded at the Registry of Deeds. The defendants' deeds reference the plan showing the easement.

When the easement was created (1988), private schools were not explicitly addressed in the Town's zoning bylaws. They are, however, allowed in the district under the Dover Amendment, G.L. c. 40A, §3, as long as they are non-profit. The plaintiffs' elementary-level Montessori school will be non-profit and thus zoning compliant.

Mr. Knight was deceased at the time of this trial. However, Mr. Harris' testimony from the prior trial covered all of their conversations and negotiations regarding the easement. Ms. Knight, now elderly, testified at deposition that she and Mr. Knight discussed building their own subdivision at that time, but she never participated in the easement negotiations and has no knowledge of what was said in those negotiations nor what other potential development ideas her late husband was contemplating. What is known from Mr. Harris' testimony is that no limitations on that easement were ever discussed or agreed between he and Mr. Knight, and no limitations were placed on it by the Planning Board. Thus, I find that Mr. Knight, like all landowners in similar situations, intended to reserve all of his development options, and the easement grantor, Mr. Harris, had no objection to that. Indeed, this was confirmed when the subdivision roads (all also 50'-wide) were later made public roads, which can, and are, used for all types of developments and, of particular relevance here, can be (and are) used for access to and from schools all over town.

On December 8, 2016, Ms. Knight sold the property to FOD reserving a life estate in the 4.1 acre westerly portion of the property where her house is located. The school FOD proposes to build, the "Hands-On Montessori Elementary School of Mansfield, Inc.," [Note 7] is a private non-profit school that will have 200 students and operate less than half of the days of the year. The school will have two sessions, one in the morning and one in the afternoon, with some students staying the entire day. As the school does not use buses, all of the students will arrive and depart by car during staggered shifts designed to eliminate congestion, with each car met by staff members to ensure smooth and swift unloading and loading of the students.

Staggering arrival and departure times is an important priority for the school. The school is private, and can only remain in operation if parents choose to enroll their children there. Parents have many private school options for their children. Any unreasonable delays or congestion in getting their children to and from the school will not long be tolerated, and parents will take their children elsewhere if the delays persist. The school knows this, and will not tolerate parents who habitually delay unloading and loading, as classes would not be able to begin and end on time. The speed and efficiency of the overall process is too important to allow deviation.

Attached as Ex. 2 is a preliminary plan of the proposed school, showing its on-site roadways and parking areas as presently conceived, subject to change if conditions make change advisable. The plaintiffs' expert estimates that the school will have a total of 462 vehicle trips per day, half going in and half coming out, spread out as follows [Note 8]: 212 trips during the weekday morning peak hour (106 in, 106 out), 220 trips during the weekday mid-afternoon peak hour (the end of the morning session, 110 in, 110 out), and an additional 30 trips (15 in, 15 out) during the weekday afternoon commuter peak hour (primarily related to after-school activities).

It is estimated that drop-offs will take between 30 seconds and one minute per car, and pick-ups between one and one and a half minutes. There is enough space at the drop-off/pick-up area so that two cars at a time, and potentially even more if necessary, can drop-off and pick-up their children. In the plaintiffs' expert's opinion, which I find persuasive, even in a worst-case scenario where the school is at maximum capacity of 200 students and there is no car-pooling, queuing will not back-up onto the easement or the public roads (there is over 700' of roadway between the property boundary and the drop-off/pick-up points, and on-site parking areas for early arrivers). The defendants' expert paints a direr picture, but for the reasons discussed below, I do not find that picture likely or persuasive.


As the easement holders, the plaintiffs have the burden of proving that their "right is extensive enough to authorize the amount and character of the use which he has made of the way" - here, the use of the easement by the school. Swensen v. Marino, 306 Mass. 582 , 583 (1940). The defendants claim that use by the school is beyond that right. The term applied to this is "overburdening." See Southwick v. Planning Bd., 65 Mass. App. Ct. 315 , 319 n.12 (2005). [Note 9]

The defendants' objections to the school are based on its alleged traffic impacts. Generally speaking, expected traffic impacts are not relevant to an overburdening analysis because they do not alter the court's determination of what uses of the easement constitute foreseeable normal development. Rather, they are relevant for municipal land-use regulators and traffic authorities. See Stack v. D'Ambrosio, 26 LCR 391 , 396 (Mass. Land Ct. 2018). Here, however, it does not matter whether they are part of the analysis or not, since traffic and queuing will not materially affect the easement, and certainly do not rise to the level of a nuisance. There is no evidence, and I find no likelihood, that anyone will park on the easement or pause there more than momentarily. Any potential traffic back-up beyond the boundary of the plaintiffs' land, which I find unlikely, would affect only public streets, which is a matter for the municipality. Even if back-ups beyond that boundary did begin to occur, the plaintiffs' property is 13.7 acres, approximately the size of ten football fields, and more than large enough for the plaintiffs to modify the pick-up/drop-off area and the roadways leading to them to eliminate those back-ups. Among other things, there is plenty of space for the school to make the on-site roadways longer so that whatever queues may develop do not extend onto the easement or the cul-de-sac. The school can also implement a system where multiple cars let children off (or pick them up) at the same time since staff meet each car. See Ex. 2.

As noted above, the school has specific drop-off and pick-up requirements that include staggered times and a system where staff members meet each car for a reason. As the head of the school testified, the staff has to efficiently manage the drop-off process in order for classes to start on time, and it does so. Pick-up must also be managed quickly and efficiently so that parents can drop-off and pick-up their children without delay. There will thus be no lengthy queues or delays. Since the school is private, the school has full discretion and authority to insist that laggard parents cooperate and, if they don't, strongly encourage them to find another school for their children. Parents will thus be motivated to quickly and efficiently drop their children off at school. Although the defendants' expert disagrees with the plaintiffs' expert and believes that there will be delays that exceed the allotted 40-minute drop-off time, I do not agree. There are no such delays at the school's present site, and this should be no different. If drop-offs took even close to the times the defendants' expert projects, the students would never begin class on time - a situation which the school would not allow and which parents dropping off their children and then rushing to get to work themselves would never tolerate. Put simply, measures to address any such queues and delays will be taken for the school's own purposes, and there is more than enough space on the site to adjust the on-site roadways, parking areas, and pick-up and drop-off points to eliminate them.

As noted above, traffic is generally not a factor in determining whether an easement is overburdened. Rather the test is this:

[a] general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises . . . . Where the easement arises by grant and not by prescription, 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. A proposed use of a way must be consistent with what the parties reasonably anticipated at the time of the establishment of the way. In making that determination, it is to be assumed that they anticipated such uses as might reasonably be required by a normal development of the dominant tenement.

Stack, 26 LCR at 395. (internal citations and quotations omitted).

Mr. Harris, the developer of the subdivision in which the Murawski and White lots are located – i.e. their predecessor in title – granted the easement at issue here, and that grant was not narrowed or restricted in any way. See Harris Testimony, supra note 4. When there is no express limitation, an easement is "available for the reasonable purposes to which the dominant estate may be devoted." [Note 10] Parsons v. N.Y., N. H. & H. R. Co., 216 Mass. 269 , 273 (1913). These "reasonable purposes" include a private Montessori elementary school of the size proposed here.

In Cerasuolo, the court held that what is considered "normal development" is "largely a question of fact." Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 84 (2004). Multiple factors are used to consider whether a proposed use is an anticipated "normal development" of a dominant parcel, including:

(a) did the original parties to the easement anticipate further development of that parcel; (b) at the time of its creation, was the easement the parcel's sole means of access; (c) was anyone already using the way described in the easement (and if so, what was the nature and frequency of that use); (d) did the size of the dominant parcel make its later development reasonably foreseeable; (e) at the time of creation of the easement, were the dominant and servient parcels zoned for the later-proposed use; (f) are there any express restrictions on use of the easement; and (g) at the time of creation of the easement, did the dominant parcel have any natural features that would limit its development.

Stack, 26 LCR at 395.

As to the first factor, the original parties to the easement certainly anticipated further development of the parcel. The easement was obtained so that the Knights could develop their property, and was 50'-wide (the width of public streets) so that width would not place any limits on its use. No limitations on the scope of the development of the plaintiffs' multi-acre site were ever discussed, much less agreed. The only limitation that can reasonably be inferred is a prohibition on uses needing more than a 50'-wide roadway for access and egress, and the school is not one of them.

As to the second factor, this easement is the only access to the plaintiffs' property. This is further evidence that the plaintiffs would not have intended to limit its use, and that no such limits should be found unless they were expressly agreed. None were.

As to the third factor, the Knights were already using the predecessor to that easement for vehicular access to their property. This easement will similarly be used for vehicle access. As there will be only private cars and no school buses dropping children off at the school, and delivery vehicles will only be the usual delivery carriers (U.S. Mail, Fed-Ex, and similarly-sized vans) which are the same as residential deliverers, the nature of the use will continue to be the same. Private vehicle use will certainly increase over what it was before (there was only the Knights' house on the parcel at that time), but it will not increase in a way that materially affects the easement, and will not overburden it. See discussed above; and Lane v. Zoning Bd. of Appeals, 65 Mass. App. Ct. 434 , 440 (2006) (finding that an increase in the number of people passing over an easement does not constitute overburdening).

As to the fourth factor, given that the property is 13.7 acres, it was reasonably foreseeable that the land would be developed in a substantial way.

As to whether at the time the easement was created, the dominant and servient parcels were zoned for the later-proposed use, the defendants argue that private schools were not allowed in the zoning district where the property is located based on the fact that the Town's bylaws did not expressly include private schools. While it is true that the zoning bylaw's Section III Use Regulations include only "parochial and public schools" in the permitted school uses of residential areas, [Note 11] the section in the Dover Amendment (G.L. c. 40A §3) pertaining to educational uses had been adopted prior to the creation of the easement, and there is no material difference between this school and those. Indeed, as discussed above, a private school such as this will have less impact than a public school because the school has more control over traffic, and fewer after-school activity offerings than public schools which, in addition to student use, are often used for other public purposes as well (e.g. community meetings and voting sites).

G.L. c. 40A §3, enacted in 1975, states that:

[n]o zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.

The proposed Hands-On Montessori Elementary School is a non-profit educational corporation. Thus, the use of the property for this school falls under the protection of G.L. c. 40A §3. Since this legislation was adopted 14 years prior to the creation of the easement, the defendants' argument that this was not a foreseeable use of the property fails.

As discussed above, there were no express restrictions on the use of the easement when it was created in 1989. There are also no natural features that limit the development of the property for school purposes. The easement thus meets all of the factors laid out in this test. I find that use of the property for the school is a normal and reasonably anticipated use of the plaintiffs' property, and thus well within the allowable scope of the easement.


For the reasons set forth above, I find, and rule that the plaintiffs' use of the 50'-wide easement for access to the proposed Montessori school will not overburden the easement, nor will it rise to the level of a nuisance to the defendants' or other properties. Rather, it was within the scope of uses reasonably-anticipated for normal future development of the property, and thus does not exceed the easement's scope. The easement may thus be used for the purpose of accessing FOD's proposed Montessori school.

Judgment shall enter accordingly.


plan of area

plan of area


[Note 1] The site was originally owned by plaintiff Brenda Knight and her late husband James. Ms. Knight sold the fee in the property to FOD, retaining a life estate in the portion on which her house is located.

[Note 2] See testimony of Nicholas Harris (the subdivision developer) at 141. The testimony was given in the prior case and admitted in this one by agreement.

[Note 3] Fifty feet was the width the Town required for new roads. See Harris testimony at 143-144.

[Note 4] See Harris testimony at 148-149 (Q: Now, Mr. Harris, did you place - what restrictions, if any, did you place, besides the width on that easement? A: None. Q: What restrictions, if any, did you place at that time on the use that the Knights' land could be put to - [Objection by opposing counsel, overruled by the court] - for which that easement would provide access to? A: None.).

[Note 5] See Harris testimony at 141, 146, and 148-149.

[Note 6] See Perillo v. Knight, 21 LCR 339 (Mass. Land Ct. 2013). The Perillos and the Maslins were the prior owners of the defendants' properties.

[Note 7] The two entities have common ownership.

[Note 8] These estimates were based on the expert's actual observations at the current location of the Montessori school, which is elsewhere in Mansfield. That school will close when this school is completed and all students, faculty and staff will move to this new location.

[Note 9] Cases are not always clear in their terms, often conflating "overburdening" with "overloading" and "nuisance." Southwick explains the difference: "overburdening" is "used to describe any use that exceeds the scope of rights held under an easement." "Overloading" applies to situations where an easement is used to access land not benefited by that easement. Southwick v. Planning Bd., 65 Mass. App. Ct. 315 , 319 n.12 (2005). "Nuisance" is used to refer to overly frequent or intensive use, and is measured by a reasonableness standard. Lane v. Zoning Bd. of Appeals, 65 Mass. App. Ct. 434 , 440 (2006).

[Note 10] The dominant estate is the property benefited by the easement – here, the plaintiffs' 13.7 acre site. The servient estate is the property burdened by the easement – here, the small sections of the edge of the Murawski and White lots over which the easement runs. See Ex. 1.

[Note 11] See Tr. Ex. 13.