MISC 11-454440

July 15, 2013

Dukes, ss.

Piper, J.


Nicholas W. Puner (“Plaintiff” or “Puner”) commenced this action in this court on October 11, 2011 with the filing of his complaint, seeking a declaration under G.L. c. 231A, §1 that Arthur and Julia Sierputoski (“Defendants” or the “Sierputoskis”) have no right, title or interest in or over Wintergreen Lane, a private way located in the Town of West Tisbury. Plaintiff holds an easement over Wintergreen Lane, which passes across the property of Defendants and the Intervenor, the Martha’s Vineyard Land Bank Commission (“Intervenor” or the “Land Bank”). Plaintiff claims that the Defendants’ unauthorized use of the private road substantially interferes with his easement rights. Both the Plaintiff and the Intervenor seek a permanent injunction from the court, barring Defendants from using Wintergreen Lane as a route to access their property.

In response to the complaint, Defendants filed a motion to dismiss the Plaintiff’s complaint, arguing that Plaintiff, as an easement holder, lacked standing to challenge Defendant’s use of Wintergreen Lane. The court denied this motion, ruling that (1) declaratory judgment may be available to an easement holder seeking declaration against one using the easement with no record right, particularly given allegations in the complaint as to the proximity of parties and the limited number of users of the way; and (2) the complaint’s claims of actual physical damage to the roadway caused by the Defendants’ alleged unauthorized use of the easement, if proved, would be sufficient to entitle Plaintiff to some form of equitable relief. Soon after, the Land Bank filed a successful motion to intervene, seeking to assert its rights as the fee owner of a substantial portion of Wintergreen Lane. With the Land Bank added as a party, the concerns about the standing of the Plaintiff easement holder diminished.

The case is before the court on cross-motions for summary judgment. Defendants ask the court to declare the existence of an easement by implication, or of an implied license to pass and repass, over Wintergreen Lane to reach Defendants’ land, and to deny the claims for injunctive or declaratory relief sought by both the Plaintiff and the Intervenor. Plaintiff and the Intervenor request the court deny Defendants’ motion, and enjoin the Defendants from using Wintergreen Lane as a route for ingress and egress to and from their property.

The following material facts are properly before the court for its consideration based on materials submitted pursuant to Mass. R. Civ. P. 56(c) and are undisputed:

1. By deed dated May 1, 1969, recorded that day with the Dukes County Registry of Deeds (the “Registry”) in Book 277, Page 284 , the trustees of the Longview Realty Investment Trust (“Longview”) conveyed a tract of land to Robert A. Thomason (“Thomason”). This deed references a plan prepared by surveyor Dean R. Swift, dated March 25, 1969 (the “March 1969 Thomason Plan”). Thomason is a predecessor in title to both Puner and the Land Bank.

2. By deed also dated May 1, 1969, recorded with the Registry in Book 277, Page 305, Thomason conveyed a portion of his land to Alvin S. Lane (“Lane”). Although recorded contemporaneously with the Longview conveyance, this deed references a different plan, also prepared by Dean Swift, dated April 18, 1969 (the “April 1969 Thomason Plan”). Within the deed, Thomason granted and reserved a mutual easement, conveying to Lane, among other rights, the right to use a twenty-foot wide strip for “ingress and egress to ... [the] present road (or any replacement thereof)...” which ran “from Lambert’s Cove Road as shown on the aforementioned survey of Dean R. Swift....” This twenty-foot easement strip is, all agree, that labeled on the April 1969 Thomason Plan as “20 ft. Way.” This easement was located along the border between Longview and Thomason’s properties, and would later become known as Wintergreen Lane. The March 1969 Thomason Plan does not depict this easement. The April 1969 Thomason Plan, West Tisbury Case File 12, was received for record at the Registry on May 20, 1969.

3. In subsequent years, Longview commissioned two separate plans depicting its property and the surrounding area: the first, dated April 27, 1971 (the “1971 Longview Plan”); the second, dated February 7, 1973 (the “1973 Longview Plan”). The 1973 Longview Plan, West Tisbury Case File 43, shows the subdivision layout of Longview’s land, including Lot 27, which would eventually become the Sierputoski parcel. Although both of these plans depict the border between Longview and Thomason’s properties, neither includes the “20 ft. Way” shown in the April 1969 Thomason Plan.

4. On July 19, 1974, Longview, in an instrument recorded with the Registry on August 23, 1974 in Book 319, Page 576, granted an easement to Thomason over the southerly corner of Lot 27. This easement, referring to a June 26, 1974 plan by Dean R. Swift recorded with the easement document, relocated a portion of the “20 ft. Way” onto the Sierputoski parcel. In this easement, Longview expressly reserved for the benefit of Lot 27 the rights to tie into any and all utility lines constructed within the easement area.

5. Puner took title to land abutting Lot 27 by deed from Carlyle Cronig, dated November 16, 1976, recorded with the Registry in Book 340, Page 9. The deed included an easement over Wintergreen Lane as the sole route to gain access to Lambert’s Cove Road.

6. At his own expense, Puner paved the easement over the “20 ft. Way” sometime in the 1980s.

7. The Sierputoskis took title to Lot 27 by deed from Richard and Linda Ahlquist, dated August 7, 2000, and recorded with the Registry on August 11, 2000 in Book 806, Page 848. This deed describes the conveyed parcel as Lot 27 on the 1973 Longview Plan, and grants an easement “to use the streets and ways shown on all recorded plans for Longview Realty Investment Trust for ingress and egress to and from Lambert’s Cove Road in common with all other persons now or hereafter entitled thereto.” Although the 1971 and 1973 Longview Plans depict a “30 ft. Way” (now known as Seth’s Lane) providing access to Lot 27, neither of these plans depicts Wintergreen Lane.

8. The Land Bank took title to land abutting the Sierputoski property by deed from Roger D. Matthews, trustee, dated November 22, 2004, and recorded with the Registry the following day in Book 1022, Page 1045. The parcel contains much of Wintergreen Lane, and is burdened by the easement held by Puner, as well as the easement created in the transaction between Thomason and Lane.

9. The Land Bank permits the public to use Wintergreen Lane during daylight hours as a route of access to the Manaquayak Preserve, located on its property.

10. The Sierputoskis have used Wintergreen Lane as an alternate route of access to their property since they acquired the parcel in 2000. They use the road for approximately two to three round trips a day.

11. The Longview Road Association currently maintains Wintergreen Lane, among others. Both Puner and the Sierputoskis pay dues to the Association.


“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub. nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

I now decide the pending motions. Although Rule 56 requires me to draw all reasonable inferences against the moving parties (and in the direction of the opposing parties), and might otherwise forestall the possibility of summary judgment entering at this juncture, the parties have cross-moved, and all counsel have been clear on the record that they have no additional evidence to advance regarding the relevant title transactions, rendering trial unnecessary. This case in its essence is a dispute to be resolved by the interpretation of the controlling plans and instruments, all of which are before me. This dispute is now properly poised for decision.

After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I determine that the uncontested facts and the governing law call for the court to grant Plaintiff and Intervenor’s motions for summary judgment and deny Defendants’ motion for summary judgment.

I. Defendants do not hold an implied easement over Wintergreen Lane, because the facts do not show a conclusive intention of Longview to reserve easement rights at the time of conveyance.

As the parties asserting the easement, Defendants bear the burden of proving its existence. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933); Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 at n. 1 (2006); Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). The burden is heavier for a grantor seeking an implied easement by reservation than a grantee seeking an implied easement by grant. Boudreau, 29 Mass. App. Ct. at 629. “[A] deed is to be construed most strongly against the grantor [which] may render it more difficult to imply an easement by reservation for the grantor’s benefit than an easement by grant for the grantee’s benefit.” Dale v. Bedal, 305 Mass. 102 , 103 (1940).

There are a finite number of methods by which to create in Massachusetts an easement of access. See Nylander v. Potter, 423 Mass. 158 , 162 (1996); Silberlieb v. Hebshie, 33 Mass. App. Ct. 911 (1992). There is here no express grant or reservation. There are several established legal doctrines that might give rise to what is generally encompassed within the broader denomination of an “easement by implication.” The question, of course, is whether any of those avenues are open to the Sierputoskis on the undisputed facts before me.

The Defendants’ counsel appropriately conceded at argument that several theories are, on this record, unavailable to his clients. They do not assert an easement by necessity; there is an alternate route of access to their property from the other side, by way of Seth’s Lane. Defendants also do not assert a prescriptive easement, as they have not achieved twenty years of adverse use. This leaves two related branches of Massachusetts easement law that allow for the creation of an “implied” easement: (1) an easement by “estoppel,” based on the conveyance of lots according to a plan showing a way, pursuant to cases such Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 677 (1965), and (2) an implied easement by reservation according to the principles laid out in cases like Boudreau, 29 Mass. App. Ct. at 628-29.

Murphy v. Mart Realty of Brockton, and the related body of law establishes that “when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” 348 Mass at 677 (quoting Casella v. Sneierson, 325 Mass. 85 , 89 (1949)). In determining whether a way has been sufficiently defined as a proposed street, reference may be made to the plans described in the deed. Id. “A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.” Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926).

The threshold difficulty Defendants encounter is that the April 1969 Thomason Plan is the only one of the two used in 1969 to depict the 20 foot right of way, on which the Sierputoskis now rest their claim. The April 1969 Thomason Plan was used to facilitate the Thomason to Lane conveyance, and Longview, under whom the Sierputoskis hold title to their Lot 27, had parted with title to the easement route they now claim, in the preceding transfer--to Thomason. This alone, I conclude, is sufficient grounds to deny the Defendants any record easement right to use Wintergreen Lane based on what transpired in 1969.

To deal with this serious problem with their claim, the Defendants argue that the two conveyances by the two deeds dated May 1, 1969 should be treated as a single transaction, and that as a result, Longview must be charged with knowledge of the “20 ft. Way” shown in the April 1969 Thomason Plan. Because this “20 ft. Way” abuts Lot 27 of the Longview property, Defendants contend that the April 1969 Thomason plan creates easement rights to pass and repass over the contemplated way. Plaintiffs argue that the two May 1, 1969 deeds should be treated as separate transactions--that Longview was not a party to the deed creating the “20 ft. Way,” and thus could not reserve any rights in the conveyance.

The facts and chronology of the relevant conveyances undermine this argument made by Defendants: that there arose an easement by estoppel in 1969. This is because the Murphy line of cases exclusively deals with the rights grantees and their successors in title have against grantors and their successors in title. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 482 (1989). The logic of the Murphy cases is that one who reaps benefit, from the conveyance out for value of individuals lots, carved from his or her own larger tract of land, showing them (on a plan used to convey) as fronting on a way, cannot later be heard to deny that those who buy those lots enjoy rights to pass over the depicted way. The subdivider who created a plan showing lots fronting on a way, and sold them to his buyers on the clearly implied understanding that the way will provide access to the lots being conveyed out, cannot turn around and deny his or her buyers (or their successors) the right to use the way shown on that plan. The inference is so strong that the lots enjoy the right of passage, that the plan, even without an express grant in the deeds, is a sufficient source of that right. “This principle of estoppel ‘seems to have become a rule of law rather than a mere canon of construction.’” Murphy, at 678, quoting Teal v. Jagielo, 327 Mass. 156 , 158 (1951).

On the other hand, a grantor cannot convey a tract of land and then subsequently claim a right of passage over an abutting way by resort to a claim of estoppel, even if the way is clearly depicted in a referenced plan. See Krinsky v. Hoffman, 326 Mass. 683 , 689 (1951) (“The plaintiffs.... argue that the reference in the defendant’s deed to a plan which showed the passageway gave them a right of way by estoppel. But the plaintiffs here are seeking to establish a reservation of an easement by implication, and we know of no case and none has been brought to our attention where that principle has been applied to the reservation of an easement as opposed to a grant. Under the estoppel doctrine, it has always been held that the estoppel runs against the grantor rather than the grantee.”) As to the disputed way in the case before me, now a portion of Wintergreen Lane, the Sierputoskis hold whatever rights they might have as a successor of Longview, which held the Sierputoski lot, Lot 27, as part of a larger tract at, and well after, the 1969 conveyancing. The Defendants thus stand, as to the 1969 transactions, as holders under Longview’s remaining title, and are fairly analyzed only as successors of the grantor, Longview. As a grantor, Longview could not validly assert a Murphy-style easement by estoppel, according to the plans involved, for the benefit of its retained parcel, following the conveyance out of the land sold to Thomason. And the Defendants can have no better status, holding as they do under Longview. As a result, even were I to adopt the Sierputoskis’ suggestion, and treat the Longview to Thomason and the Thomason to Lane conveyances (with their respective plan references) as a single transaction, Longview would not hold any easement rights under the Murphy doctrine. This legal remedy is not available to the Sierputoskis on the controlling facts.

Boudreau may be read to offer an alternate method for creating an implied easement, looking to the parties’ intent at the severance of title. This variant of implied easement may, on appropriate facts, arise when a plan is referenced within a deed and the parties to that deed clearly intended to create an easement. See Rahilly v Addison, 350 Mass. 660 , 662 (1966); Boudreau, 29 Mass. App. Ct. at 628. In determining the presumed intention of parties to the deed, courts have looked to “the language of the instruments when read in light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.” Dale, 305 Mass. at 103.

Reasonable necessity is a key consideration in determining whether the parties intended to create an easement at the time of severance. See Boudreau, 29 Mass. App. Ct. at 628. Courts may also look to subsequent acts of the parties following the conveyance. Bacon v. Onset Bay Grove Ass’n., 241 Mass. 417 , 423 (1922). “Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed ‘as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.’” Id. quoting Hurd v. General Elec. Co., 215 Mass. 358 , 361 (1913).

Defendants contend that Longview intended to reserve a right of way over the “20 ft. Way” in its May 1, 1969 conveyance to Thomason, and that the benefit of this implied easement passes to them through the Longview chain of title. Defendants rely on the recorded plans associated with the contemporaneous conveyance of property from Longview to Thomason, and Thomason to Lane, alleging that Longview intended to reserve rights in the easement created in the latter transaction. They further argue that since the intent is ambiguous in this instance, subsequent acts of the parties following the conveyance help prove Longview’s intent to reserve easement rights.

Plaintiff and Intervenor respond that even if Longview knew of the easement’s creation by other parties, this does not sufficiently establish any intent on the part of Longview to reserve rights in the now disputed easement. Plaintiff and Intervenor note that the original conveyance from Longview to Thomason referenced the March 1969 Thomason plan, which does not depict the “20 ft. Way.” They also argue that Longview’s failure to depict the road in any of its plans or to reserve explicitly rights of passage over the way negates any reasonable inference tending to show that intent.

Defendants have the burden of proving that Longview, despite its failure to reserve an express easement, intended to reserve a right of passage over the 20 ft. Way when it conveyed a portion of its property to Thomason on May 1, 1969. I conclude, as a matter of law, that Defendants have not come forward with record proof which, if accepted at trial, would satisfy their burden to establish an implied easement by reference to a plan. The recorded plans, surrounding circumstances, and subsequent acts of parties to the deed do not tend, in any reasonable manner, to demonstrate a clear intent on the part of Longview to reserve easement rights at the time of severance. At summary judgment I am not privileged to weigh evidence; I merely view the record indulgently to see if the makings of a case for Defendants’ claimed easement lie within it. The record (which the parties concur is all I would have at trial in any event) does not withstand even that lenient scrutiny.

Defendants argue that Longview’s principals must have had knowledge of the April 1969 Thomason Plan as a result of the close relationship between the two May 1, 1969 deed transactions. I grant the Sierputoskis that inference. Nevertheless, knowledge of an easement’s creation does not prove intent to reserve rights over that easement. Longview’s deed to Thomason contains no reference whatsoever to the April plan depicting this way, and circumstances surrounding the conveyance suggest that Longview had no need to secure a right of way. Longview already had a perfectly adequate means of accessing its property over Seth’s Lane. Furthermore, the “20 ft. Way” would remain undeveloped for over a decade, and was not paved until Puner did so himself in the 1980s. Absent any language to the contrary, there appears to be no element of reasonable necessity showing why Longview would have desired or needed a right of passage over an undeveloped private way at the time of the 1969 conveyances.

Cases applying this branch of implied easement doctrine have looked to see if the use later sought to be judicially established was one already being made at the time of severance. “Open and obvious use consistent with a claimed implied easement prior to a conveyance may also be a circumstance indicative of an intent on the part of the grantors and grantees to create such an easement.” Boudreau, 20 Mass. App. Ct. at 630, citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 108 (1933), Krinsky v. Hoffman, 326 Mass. at 687, and Restatement of Property Section 476 comment i. The Boudreau court may have been more lenient in this regard than the standard insisted upon by long-established precedent. The Appeals Court in Boudreau might seem to have considered open use, consistent with the asserted easement, at the time of the severance to be merely “indicative” of an intention to create an implied easement. The Supreme Judicial Court appears to treat use at the time of severance in a mandatory way. In Mt. Holyoke Realty, id., the court said: “Where as here there is no actual physical necessity for an easement, it is a requisite element in the creation of any easement by implication upon severance of title that there be an open and continuous use of one parcel for the benefit of the other. ... There was at the time of the severance of title and the grant no existing means of access between the second floors of the two buildings. No such easement was then created and therefore none now exists.” [internal citations omitted] The record in the pending case does not intimate any use of the 20-foot right of way at the time of the 1969 deeds; the record tends to show, rather, that no such use was in place at the time of severance. This failing is telling, and defeats the Sierputoskis’ assertion of an implied easement which they say arose at that time.

The subsequent actions of the parties to the relevant deeds also do not demonstrate clear intent to reserve an easement. In 1971 and 1973, Longview recorded plans depicting all of its property and the surrounding area. Although both of the plans show where Longview’s land meets Thomason’s, neither includes the “20 ft. Way” at this border. In 1974, Longview granted an easement to Thomason over a portion of its property, relocating a part of Wintergreen Lane onto Lot 27 (the Sierputoski parcel). In granting the easement, Longview only retained “the right to tie in any and all utility lines constructed in said easement for the benefit of Lot 27....” The easement document made no mention of reserving rights of passage over the way. “Having expressly reserved some easements, failure to reserve others must be regarded as significant.” Boudreau, 29 Mass. App. Ct. at 630. Longview had at least two separate opportunities to secure a right of way over Wintergreen Lane, yet did not do so on either occasion.

Defendants point to a number of additional actions and uses over the years to demonstrate intent. They refer me to the construction of a driveway on the Sierputoski parcel connecting to Wintergreen Lane, the payment of annual dues to the Longview Road Association (which maintains Wintergreen Lane, among others), and the survey plans of numerous individual parcels commissioned by Longview. Nevertheless, most of these actions are too far removed from the original conveyance to offer any meaningful insight into Longview’s intent. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 681 (1965) (“[T]he subsequent unilateral action of one of the parties in paying taxes should be given little weight in construing the consequences of an earlier bilateral transaction....”); see also Boudreau, 29 Mass. App. Ct. at 633 (“The particular actions of the grantors were all unilateral and removed in time from pertinent transactions.”) Even though I consider the case on summary judgment, I conclude that construction of a driveway, and payment of dues to the Longview Road Association three decades after the original severance of title, does not constitute any meaningful evidence of a far earlier intent to reserve an easement. In addition, the abundance of individual plans surveyed by Longview over an extended period of time does not, even considered indulgently, indicate any cohesive development plan supportive of a right to use what has become Wintergreen Lane. None of these actions, if proved at trial, would be evocative of the intent necessary to prove the existence of an implied easement by reservation.

Given Longview’s silence in reserving easement rights and failure to depict Wintergreen Lane in any of its recorded plans, Defendants have not carried their burden in proving an implied easement by reservation. As a result, I rule as matter of law on this record that Defendants do not hold an implied easement to use Wintergreen Lane for passage to their Lot 27. II. Even if Defendants held an implied license to use Wintergreen Lane to access their property, that license has been revoked by the Intervenor.

Defendants contend that their use of Wintergreen Lane is indistinguishable from that of the public, and that they have a right to continue using the way under an implied or non-express license. They point to the Land Bank’s generous permission to the public generally to travel along Wintergreen Lane to reach the Land Bank’s recreational land holdings to use them for those purposes. Defendants argue that this implied or non-express license necessarily remains “irrevocable” so long as the Land Bank continues to permit this form of public access over Wintergreen Lane. Plaintiff and Intervenor reject this position, contending that Defendants’ use is entirely distinguishable from the public in magnitude, purpose, and character. Plaintiff and Intervenor also say that, regardless of whether such an “implied license” may have existed, Intervenor, as fee owner of the majority of Wintergreen Lane, has effectively revoked Defendants’ right of passage to reach their lot.

An implied license is a legal concept often used by a record fee owner to rebut a claim of adverse possession or easement by prescription. If the record owner has conferred permission to come upon his or her land, the required element of adversity is absent, and title by adverse possession or prescriptive easement rights cannot arise. See Kilburn v. Adams, 48 Mass. 33 , 40 (1843). As the court explained in Spencer v. Rabidou, an implied license “refers to permission which is more than mere acquiescence... Permission of this character carries authority to do some act or a series of acts on the land of another without passing any estate in the land and in its nature is revocable.” 340 Mass. 91 , 93 (1959) (emphasis added) (citations omitted).

Although Defendants claim that they hold an implied or non-express license, whatever license they might hold is limited to the same use granted to the public at large - traversing Wintergreen Lane to access the Land Bank trailhead, to then use the recreational land there for those special purposes. No separate, broader license could on this record be claimed successfully by the Defendants; their use at most would be confined to the use extended permissively to the general public. Defendants’ use of Wintergreen Lane to access their driveway and travel to and from Lot 27 thus falls outside the scope of the rights that Defendants may have enjoyed derivatively of the public’s opportunity to come down Wintergreen Lane to enjoy the recreational land of the Land Bank.

Defendants admit that they use the disputed stretch of way for several round trips a day; this shows that their current and claimed use also is distinguishable in terms of frequency. Even if the implied license somehow allowed Defendants to travel to and from their driveway to access Lot 27, something I rule is not the case, the Land Bank’s intervention in this litigation and request for permanent injunction bespeak a clear intention by the fee owner to revoke any such privilege. Counsel confirmed as much at the hearing. I rule that, at best, Defendants have held a revocable license to use Wintergreen Lane to reach the Manaquayak Preserve, that the fee owner has revoked that license, and Defendants lawfully can be denied their broad claimed use of Wintergreen Lane. As a matter of law, there is in effect no implied license which permits Defendants to use Wintergreen Lane to travel to and from their property. **** Summary judgment is GRANTED in favor of the Plaintiff and the Intervenor, and DENIED to the Defendants.

The judgment I will direct the Recorder to enter in this case will establish that the Sierputoskis, and those holding under them, lack any right or title to use the Land Bank’s portion of Wintergreen Lane for passage to and from their Lot 27.

The only issue that remains is the fashioning of an appropriate legal remedy to deal with and prevent in the future the unauthorized use of Wintergreen Lane by the Defendants and those holding under them. I have not heard the Land Bank to say that the Defendants are to be barred altogether from using its stretch of Wintergreen Lane. The Land Bank appears willing to continue to afford the Sierputoskis a revocable license to use the road in the same manner as the public - as a means of traveling to and from the Land Bank property. Plaintiff, however, also asks for more expansive injunctive relief, ordering the Sierputoskis (1) to restore their land so as to remove their driveway that connects to Wintergreen Lane within thirty days after the entry of judgment; and (2) not to represent to third parties that there is access to their property from Wintergreen Lane, including no longer using an address of 15 Wintergreen Lane. I am a bit skeptical that those equitable remedies, at least in that form at this juncture, are essential to the vindication of the parties’ rights as set forth in this decision. I would like to afford the parties, now that they understand the court’s disposition of this case on the merits, an opportunity to address for me the form of judgment I ought to direct be entered in this case.

I ask counsel promptly to confer and work together to attempt, to the maximum degree possible, to forge the form of judgment to be issued. To the extent they cannot agree, they should submit competing alternatives for my consideration. What counsel submit should address in detail the specific actions to be forbidden by the court, and which the parties will be required to take, to make sure that the property rights of the parties are respected. I would be open to giving the Defendants an initial opportunity to abide by the court’s judgment without requiring expensive or expansive changes to the land, with the proviso that demonstrated disobedience might lead to further physical changes then being mandated.

Within twenty-one days of the date of this Order, counsel are to file with the court a joint written report giving their joint or several positions, and including the form (or forms) of specific language the judgment should include. There will be, of course, no adverse effect on any parties’ appellate rights as a result of their assistance to the court in crafting the judgment.

Judgment accordingly.