The facts presented by the parties at this early stage of the proceedings are largely not in dispute. The plaintiffs own and reside in houses on three properties off of Barney's Joy Road in Dartmouth, with deeded access rights for access to Barney's Joy Road over a private 40' right of way. The defendants Frederick T. Preece, Sr. and Josephine P. Preece ("Mr. and Mrs. Preece") own and reside at property on Jordan Road, which also has deeded easement rights over the same 40' right of way for access to Barney's Joy Road. The plaintiffs' properties were granted their rights over the right of way by a predecessor in title of the Mr. and Mrs. Preece. The Preece's son, Frederick T. Preece, Jr., [Note 1] resides in property owned by Mr. and Mrs. Preece that is also benefited as a matter of title with access rights over the right of way to get to and from Barney's Joy Road. Fred, Jr. does not own any of the relevant property, but claims rights as a tenant or guest of his parents, on whose property he resides. By verified complaint and by affidavit, the plaintiffs claim that Fred, Jr. has interfered with their rights over the right of way by placing obstructions in it, including a "guard shack" and a log, by posting a no trespassing sign on it, and by intimidating and harassing the plaintiffs. The plaintiffs allege that Fred, Jr.'s conduct interferes with their deeded rights on the right of way. Furthermore, the plaintiffs claim that whatever rights by which Fred, Jr. claims and interest in the right of way have been lost through abandonment, by reason of an obstruction placed in the right of way by the Preeces in 1975, making the right of way impassable by vehicles forty-five years ago.
Prior to the hearing held by the court on the plaintiffs' request for preliminary injunctive relief, the plaintiffs and Mr. and Mrs. Preece filed a joint motion requesting approval of a stipulated order for preliminary injunction. Fred, Jr. appeared at the hearing held by the court on the plaintiffs' request for preliminary injunctive relief, and opposed the requested relief, but filed no affidavit or other written opposition to the requested preliminary injunction.
Upon consideration of the affidavits and memoranda filed by the plaintiff and by the defendants, and the arguments of counsel, and of Fred, Jr., and for the reasons stated below, the motion for preliminary injunction is ALLOWED.
DISCUSSION
STANDARD FOR ISSUANCE OF PRELIMINARY INJUNCTION
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). Where, as here, "a public entity is a party, a judge may weigh the risk of
harm to the public interest when deciding a preliminary injunction motion." Bank of New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238 , 246 (1991).
LIKELIHOOD OF SUCCESS ON THE MERITS
It is undisputed that Mr. and Mrs. Preece share rights with the plaintiffs over the right of way for access to Barney's Joy Road, as a matter of record title. The plaintiffs claim that the Preeces, or their predecessor in title, abandoned those shared rights by placing an obstruction in the right of way, and thereby relying on their access to Jordan Road for access to a public way. Fred, Jr. has no independent record access rights, but may have rights as a guest or tenant of Mr. and Mrs. Preece, to the extent that they have rights that have not been lost through abandonment. The court is reluctant at this early stage of the proceedings to draw any conclusions about the quality of the evidence concerning abandonment. What is clear and undisputable is that Fred, Jr.'s conduct and actions has interfered with the rights of the plaintiffs to full and unfettered use of the right of way for ingress and egress and for all other purposes for which ways are used in the town of Dartmouth. Accordingly, the court concludes that the plaintiffs have established a sufficient likelihood of success to warrant the issuance of preliminary injunctive relief.
IRREPARABLE HARM
Deprivation of full and unfettered use of the right of way for its intended purposes is irreparable harm. By contrast, Fred, Jr. has no right, to the extent he even has any rights in the right of way, to interfere with the rights of others, by appropriating parts of the right of way, by posting it with signs, or by interfering with the access of others in any way. He further has no right to intimidate or otherwise obstruct any owner or their guests or invitees in the use of the right of way. He can claim no interest in being deprived of the ability to interfere with the rights of others in this manner. He will suffer no irreparable harm by the issuance of injunctive relief that enjoins him from interfering with the rights of others.
CONCLUSION
The court concludes, for the reasons described above, that the risk of irreparable harm to the plaintiffs, in light of their likelihood of success on the merits of their claims, 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 plaintiffs' 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 Frederick Preece, Sr., Josephine P. Preece, and Frederick T. Preece, Jr., and their 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 gating, closing, blocking, or otherwise interfering with access by the plaintiffs and their guests and invitees to the 40' wide right of way leading from Barney's Joy Road in Dartmouth and abutting the plaintiffs' properties at 50, 52, and 54 Barney's Joy Road, or any part thereof, and including the land immediately adjacent to said right of way (all of which is hereinafter referred to as the "right of way"), and are further enjoined from maintaining or posting any signage on or near said right of way designed, intended, or tending to have the effect of discouraging or prohibiting access by the plaintiffs or their guests or invitees to said right of way, including, without limitation, any "no trespassing" signs, until further Order of this court, and it is further
ORDERED that the plaintiffs are permitted to remove any and all obstructions that have been placed in the right of way by Fred, Jr., or anyone acting on his behalf, including without limitation, an abandoned vehicle, a "guard shack," and a wooden pole with orange bucket taped to the top, and it is further
ORDERED that Fred, Jr. is ENJOINED AND PROHIBITED from interfering in any way with the free and clear use and enjoyment of the right of way by the plaintiffs and their use guests and invitees.
No security is to be required in connection with the issuance of this Order.
So Ordered.
PAMELA L. SPATZ, DAVID E. BOGEN, RYAN S. KAY, DANIELLE M. GASSERT, AND C. SCOLLAY WHITNEY, Plaintiffs v. FREDERICK T. PREECE, SR., JOSEPHINE P. PREECE, AND FREDERICK T. PREECE, JR., Defendants