GREGORY P. HERALD and MARY HERALD, Plaintiffs v. NELSON ROSNINA and MANUEL TAVARES, [Note 1] Defendants

Plaintiffs Gregory P. Herald and Mary B. Herald filed this action on September 25, 2020, seeking damages and declaratory and injunctive relief with respect to an alleged trespass on a private driveway easement over which the Heralds have deeded rights to pass and repass for access to and from their home.

The defendants were served with notice of this action and of the hearing to be held by the court on October 5, 2020. The court held a hearing by videoconference on the plaintiffs' motion for injunctive relief on October 8, 2020, at which the defendants appeared and were represented by counsel. Upon consideration of the verified complaint, affidavits and memorandum filed by the plaintiffs, and the arguments of counsel, and for the reasons stated below, the motion for preliminary injunction is ALLOWED.

FACTS

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 2]

The Heralds own a single-family dwelling at 455 Drift Road in Westport. The defendants own a single-family dwelling on property abutting that of the plaintiffs, at 459 Drift Road. Pursuant to a deed between predecessors in title of the parties, the Heralds' property has the benefit of a common driveway easement over the defendants' land. Specifically, the parties predecessors in title, John M. Porter and Judith A. Porter, while the owners of both 455 and 459 Drift Road, deeded 459 Drift Road to Rodney S. Densmore, and reserved an easement for the benefit of 455 Drift Road, with the right to pass and repass over the gravel road presently existing," running generally in an east-west direction from Drift Road to the rear of 459 Drift Road where it meets the boundary of 455 Drift Road; a different branch of the gravel road serves other lots at that time owned by the Porters. The deed reserving this easement was recorded in the Bristol County South Registry of Deeds ("Registry") in Book 1971, Page 212, on June 26, 1986. A subsequent 1990 amendment to the easement, recorded in Book 2518, Page 146, narrowed the allowed width of certain parts of the right of way to 12 feet.

The defendants argue that the easement reserved by the Porters was for a single gravel road serving Lots 2, 3, 4, 5, and 6 as referred to in the original reservation of easement. This theory is belied by the 1990 amendment to the easement. By the amendment, Mr. Porter, as the owner of Lot 2 (the property presently owned by the plaintiffs) and Mr. Densmore, the owner of Lot 1 (the property presently owned by the defendants), agreed to modify the driveway easement over Lot 1 (459 Drift Road), by narrowing part of the existing gravel road as follows: "Beginning at the point where the existing gravel road splits up, with one (1) road going in a Northwesterly direction toward Lot 3 on said plan, and other road going in a Westerly direction to Lot 2 on said plan,..." and then providing that the road going toward Lot 2 would be narrowed to 12 feet in width.

Plaintiffs have demonstrated by affidavit and in their verified complaint, interference with their deeded rights of access to 455 Drift Road by the defendants, including the placing of vehicles in the right of way, removal of gravel from the right of way (which has a gravel surface), the placing of railroad ties in the right of way, a cease and desist letter from defendants' counsel demanding that the plaintiffs cease using the right of way, and verbal threats by the defendants.

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).

LIKELIHOOD OF SUCCESS ON THE MERITS

The defendants have thus far not disputed by affidavit or otherwise either the state of the record title, or their interference with the plaintiffs' deeded easement rights over their property. The amendment to the easement disposes of the defendants' argument that there is only one road over which anyone has an access easement burdening their property. The amendment is clear that the reserved easement over Lot 1 (459 Drift Road) includes two branches of a gravel road that enters from Drift Road, and then splits, with one road serving Lots 1 and 2, and the other serving Lots 3, 4, 5 and 6. The original reservation of easement and the 1990 amendment to the easement are both explicitly referenced in the defendants' deed, recorded on July 24, 2019 in Book 12867, Page 181.

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 defendants do not have a right to block access to or to interfere with the plaintiffs' use of the right of way over the defendants' property at 459 Drift Road to access the plaintiffs' property at 455 Drift Road.

Accordingly, the plaintiffs have satisfied their burden of establishing that they have a sufficient likelihood of success on the merits.

IRREPARABLE HARM

To the extent that the defendants believe (if they do) that the plaintiffs no longer have rights of access over their property, the defendants do not have a unilateral right to use self-help to assert their claimed rights. See Goulding v. Cook, 422 Mass. 276 , 278 (1996) (self-help not justified in asserting property rights).

The plaintiffs' loss of the use of the right of way providing access to their home for the period it will take to resolve this litigation is irreparable, and considering this irreparable harm in light of the plaintiffs' demonstrated likelihood of success, and further considering the defendants' irreparable harm from the plaintiffs' use of the right of way, in combination with the defendants' lack of demonstration of any likelihood of success, the court will issue the requested injunctive relief.

CONCLUSION

The court concludes, for the reasons described above, that the risk of irreparable harm to the plaintiffs, in light of their chances of success on the merits of their 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 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 Nelson Rosonina and Manuel Tavares, and their guests, invitees, 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 gating, blocking, removing gravel from, interfering with access over, or parking vehicles on, any part of the gravel driveway running in a generally cast to west direction from Drift Road across the defendants' property at 459 Drift Road in Westport, to the plaintiffs' property at 455 Drift Road, and they are further ENJOINED and RESTRAINED from posting any signage tending to interfere with the plaintiffs' rights of access and egress, including without limitation "no trespassing" or "do not enter" signs on or in the vicinity of said gravel driveway, and they are further ENJOINED and RESTRAINED from removing, defacing or interfering with any address signage placed by the plaintiffs on or in the vicinity of the said gravel driveway.

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

So Ordered.