BRENDA I. DEL PRETE, JOHN F. DEL PRETE, JR., MICHAEL CRIMMINS, MARY KATE SHEA, DAVID PRESTON, JANE PRESTON, STEPHEN BOWEN as he is Trustee of the BOWEN FAMILY TRUST, MARJORIE KURGAN, KAITLYN KELLEY, SUSAN WILCOX HARRIS, EDMOND MCGRATH, JANICE MCGRATH, CHRISTOS APOSTOSTALAKOS, BONITA STROMGREN, Plaintiffs, v. CHRISTOPHER BERGIN and CAROLE E. BERGIN, Defendants

The facts presented by the parties, at least at this early stage of the proceedings, are largely not in dispute. The plaintiffs own properties in the Weatherglass Lane subdivision in Falmouth, with deeded access rights over a private 20'-wide right of way to Green Pond. The paved path built on the right of way for access to the pond, perhaps more than forty years ago, as been in use ever since by the plaintiffs and their predecessors, Upon conducting a survey of their property recently, the defendants, Christopher Bergin and Carole E. Bergin, discovered that part of the path built to access the pond veers off of the deeded right of way and crosses their property. It is over this part of their property that the plaintiffs claim that they have established a prescriptive easement.

The defendants, while not disputing the existence and use of the path over a portion of their property, assert that their abutting neighbors across the right of way, David Preston and Jane Preston, have encroached on the right of way by placement of fill, plantings, and a shed. They further assert that if indeed the plaintiffs are able to establish a prescriptive easement over their property, they will be entitled to have it moved back onto the right of way pursuant to M.P.M. Builders, LLC v. Dwyer, in which the Supreme Judicial Court held that the owner of a servient estate burdened by an easement can make reasonable changes in the location and dimensions of an easement, "if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created." 442 Mass. 87 ,91 (2004).

Upon consideration of the affidavits and memoranda filed by the plaintiffs and the defendants, and the arguments of counsel at a hearing held by videoconference on October 8, 2020, 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

The plaintiffs have, by affidavit of several of the plaintiffs, asserted that they have been using the path as it currently exists, which encroaches on the defendants' record property, for access to Green Pond from their homes in the subdivision, regularly for a period in excess of twenty years. The defendants have not contradicted these assertions. So in the first analysis, the plaintiffs have shown a sufficient likelihood of success on their prescriptive easement claim to warrant the issuance of preliminary injunctive relief. The court cautions the parties, however, that this determination of likelihood of success is made without consideration of the anticipated but as yet unasserted counterclaim under M.P.M. Builders, LLC v. Dwyer, supra, 442 Mass. 87 . No facts necessary to the determination of the M.P.M. have yet been presented to the court, and the court does not presume to assess the likelihood of success on any such claim.

The court's determination is also made without regard to the anticipated claim that two of the plaintiffs are encroaching on the deeded right of way. To the extent that two of the plaintiffs come to the court with unclean hands, the other plaintiffs should not be soiled. The anticipated counterclaim against the owners of Lot 6, in any event, is separate and apart from the claim against the defendants. The court hastens to point out that the results of the claim against the defendants are not likely to determine or affect the results of counterclaims anticipated against the owners of Lot 6, as the facts upon which each claim depends are likely to be independent of each other.

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 path as it has been used by the plaintiffs for in excess of the last twenty years is irreparable harm. Although the deprivation of the use of the path, where it encroaches on their property, is also irreparable harm, in light of the greater likelihood of success on the prescriptive easement claim shown by the plaintiffs, the balance of harms cuts in favor of the plaintiffs. Again, the court cautions that this determination is made on the basis of the present, preliminary pleadings.

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 claim of prescriptive easement, outweighs the defendants' probable irreparable harm and likelihood of prevailing on the merits of the prescriptive easement claim. 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 Christopher Bergin and Carole E. Bergin, and their guests, invitees, 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, removing the pavement from, or otherwise interfering with access by the plaintiffs and their guests and invitees to the paved path encroaching on their property at 51 Weatherglass Lane, Falmouth, and leading from the 20'-wide right of way to Green Pond, or any part thereof, as shown on a plan entitled, "Plot Plan for Christopher Bergin, 51 Weatherglass Lane, East Falmouth, MA," dated August 6, 2019, prepared by Warwick & Associates, Inc., until further Order of this court.

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

So Ordered.