MISC 20-000302


ESSEX, ss.



Plaintiff Bethany Homes, Inc. ("Bethany") filed this action on July 29, 2020, seeking declaratory and injunctive relief with respect to an alleged trespass on a private right of way over which Bethany has deeded rights to pass and repass over the entire width of the way.

Upon consideration of the verified complaint and memoranda filed by the plaintiff and the affidavit and opposition submitted by the defendants, and the arguments of counsel, and for the reasons stated below, the motion for preliminary injunction is ALLOWED.


The following facts appear in the record and are credited by the court for the purposes of consideration of this request for preliminary injunctive relief: [Note 1]

Bethany and the defendant, 38-42 Washington Street LLC, own land each abutting Phoenix Row, a thirty-foot wide private right of way in Haverhill, which runs parallel to Washington Street. The defendant owns a building fronting on Washington Street, and with the rear wall of the building abutting Phoenix Row. Bethany owns two parcels of land accessed by Phoenix Row, directly behind the defendant's building. Bethany's property immediately abutting Phoenix Row is occupied by off-street parking accessed from Phoenix Row. The plaintiff and the defendant each own to the centerline of Phoenix Row, and each have deeded easement rights to use the entire width of Phoenix Row as a passageway. Specifically, the common grantor of both properties in 1911 deeded the Bethany property with the right to use Phoenix Row "throughout its entire present width for all purposes as a passageway." This right, without dispute, has been carried forward in deeds up to and including the deed into Bethany in 2011.

The defendant acquired 42 Washington Street in 2019, with a deed that carried forward the obligation that the conveyance was "subject to the agreement that a certain portion of said Phoenix Row be kept open as set forth in a [1928] deed...," which deed required that Phoenix Row be kept open for its entire width "for all purposes as a passageway." The defendant does not dispute the state of the record title, but alleges that at the time it took title in 2019, the passageway was already being blocked by its predecessor with marked parking spaces and a dumpster, but the defendant offered only inadmissible hearsay in support of these alleged facts.



The familiar standard for consideration of a request for preliminary injunctive relief is as follows: "[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue." Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980).


As is noted above, the defendant does not dispute, for the purposes of the present motion, the state of the record title. That is, the defendant concedes, at least at this early stage of proceedings, that each party owns to the centerline of Phoenix Row, subject to the right of the other to use its entire width for all purposes of a passageway. A right to use a way for passage includes the right, unless explicitly restricted in the grant, to access the way over its entire length and width. Guillet v. Livernois, 297 Mass. 337 , 340 (1937); Onorati v. O'Donnell, 3 Mass. App. Ct. 739 (1975). Thus, the defendant does not have a right, at least as a matter of record title, to park cars and a dumpster on any part of Phoenix Row, and thereby interfere with Bethany's right to use the entire width of the passageway for access to and from its property.

The defendant has suggested that it and its predecessors have extinguished Bethany's rights over part of the passageway by parking on the passageway. Such a defense of extinguishment of Bethany's rights by adverse possession can only be shown "by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The defendant, by affidavit, has offered direct and admissible evidence of such possession, by parking of cars on the passageway, going back only to its 2019 acquisition of its property. It has offered only hearsay evidence that a prior owner would be able to show such use of the passageway going back the required twenty years, and has not offered even hearsay evidence that the occupation of the passageway would otherwise meet the elements of proof of adverse possession.

Accordingly, Bethany has satisfied its burden of establishing that it has a sufficient likelihood of success.


The defendant does not have a unilateral right to use self-help to assert its claimed right to park in the passageway. Even if the defendant felt the situation to require desperate action, [its] was not the kind of desperation that justifies self-help." Goulding v. Cook, 422 Mass. 276 , 278 (1996). No doubt the defendant finds a benefit in the use of the passageway in the back of its building for parking and to keep a dumpster. That benefit does not justify unilaterally taking over a third or more of the width of the passageway over the protests of those who share rights in the entire width of the passageway.

Bethany's loss of the use of part of the passageway for the period it will take to resolve this litigation is irreparable, and considering this irreparable harm in light of Bethany's demonstrated likelihood of success, and further considering the defendant's irreparable harm in loss of parking, in combination with its lack of demonstration of any likelihood of success, the court will issue the requested injunctive relief.


The court concludes, for the reasons described above, that the risk of irreparable harm to the plaintiff, in light of its chances of success on the merits of its claim, outweighs the defendants' probable irreparable harm and likelihood of prevailing on the merits. See Commonwealth v. Mass. CRINC, 392 Mass. 79 (1984).

Accordingly, it is

ORDERED that the plaintiff's motion for preliminary injunction is ALLOWED. It is further

ORDERED that, during the pendency of this action, or until further order of the court, the defendants 38-42 Washington Street, LLC and Four Points Property Management, LLC, and their tenants, agents, representatives, employees, contractors, and others acting in concert with them or otherwise having actual knowledge of this Order, are hereby ENJOINED and RESTRAINED from parking vehicles on any part of the thirty-foot width of Phoenix Row, leaving dumpsters or other trash receptacles or equipment on any part of the thirty-foot width of Phoenix Row, and from gating, closing, blocking, or otherwise interfering with access of the plaintiff or its invitees to and over Phoenix Row, or any part thereof, or to plaintiff's property abutting Phoenix Row, until further Order of this court.

No security is to be required in connection with the issuance of this Order.

So Ordered.


[Note 1] The court makes only preliminary findings based on "an abbreviated presentation of the facts and the law," Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609 , 616 (1980), and does not purport to make the detailed, and final, findings and rulings of law that will follow a dispositive motion or a trial on the merits pursuant to Rule 52, Mass. R. Civ. P.