EDWARD J. MORIARTY & Another v. EDMOND L. RESOR, Trustee, & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-931
EDWARD J. MORIARTY & another 1
vs.
EDMOND L. RESOR, trustee, 2 & others. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns the validity and scope of an easement
the defendants claim to have over the plaintiffs' property in
the town of Lexington (town). The plaintiffs, Edward Moriarty
and Emily McPhillips, challenge the right of the defendants to
use the driveway located on the plaintiffs' property to access
all of the defendants' property from the public way. In
counterclaims, the defendants seek a declaration of their
easement rights and contend that Moriarty and McPhillips have
1 Emily C. McPhillips.
2 Of the Bushnell Trust under a declaration of trust dated
September 27, 2005.
3 Charles M. Lacy, trustee of the Bushnell Trust under a
declaration of trust dated September 27, 2005; Iqbal Quadir;
Samina Quadir; and Bank of America, N.A., intervener. Bank of
America has not participated in this appeal.
interfered with those rights. After resolving some issues by
summary judgment, a Land Court judge conducted a trial and
issued a judgment declaring the scope and extent of the
defendants' easement rights. We affirm.
Background. a. Development of the property. In 1958,
Marshall and Rena Bushnell owned all of the property at issue.
The land was situated on a hill and improved with a mansion
constructed in 1891. Access to the mansion from the public way,
Waltham Street, was by a winding driveway that ended near the
mansion. This driveway is at the center of this litigation.
In 1958, the Bushnells recorded an "ANR plan" -- a plan
that did not require approval under the subdivision control
law -- showing three lots: lot B1, lot B2, and lot B3 (the 1958
ANR plan). Lot B2 contained 3.19 acres and included the mansion,
and lot B1 contained 7.21 acres to the north and west of lot B2
and included most of the driveway. 4 The driveway is shown on the
1958 ANR plan as meandering northwesterly from Waltham Street to
a point on lot B1 where it essentially does a U-turn, and
proceeds southerly to lot B2. This U-turn has been referred to
by the parties as the "hairpin turn," and by the judge as a
"switchback." It now fronts the plaintiffs' home.
4 A third lot, lot B3, is also shown on the 1958 ANR plan as an
arrow-shaped lot containing 6,700 square feet abutting a portion
of the driveway. That sliver of property is not at issue in
this case.
2
On September 19, 1958, the Bushnells sold lot B2, including
the mansion, to the Bridgmans, one of the defendants'
predecessors, with an express easement over the driveway that
provided as follows:
"The above-described premises are conveyed, together with a
right to use and maintain the driveway as shown on said
plan in common with the owners of Lot B1 and the owners of
the parcel shown as Karl S. Marshall[5] on said plan for all
purposes for which streets and ways are commonly used in
the Town of Lexington." (Emphasis added.)
Thereafter, further development of lot B1 took place. In 1960,
the town took the beginning of the driveway to create Worthen
Road running in a northwesterly direction from Waltham Street
and, in 1967, the planning board approved a subdivision of lot B1
into lots numbered 1 through 6, whereby the southeastern portion
of the driveway from Worthen Road was replaced by "Bushnell
Drive," which ended in a cul-de-sac. From the northwestern end
of the cul-de-sac, the original driveway continued in a loop
(the hairpin turn) over lot 3 to the original lot B2 that housed
the mansion. That plan was recorded on January 3, 1968 (the
January 1968 plan). Lots 1-2 and 4-6, as shown on the January
1968 plan, each contained between 18,000 and 20,500 square feet.
5 The Marshall property is shown on the 1958 ANR plan as abutting
Waltham Street to the southeast and the driveway to the
northwest. There are no issues involving the Marshall property
in this case.
3
Lot 3 on the January 1968 plan contained approximately 4.5 acres
and a large portion of the remaining original driveway.
In October of 1968, lot 3 was further divided into lot 3-A,
containing 2.77 acres, and lot 3-B, containing 1.61 acres
(October 1968 ANR plan). 6 Lot 3-B was rectangularly shaped and
shared a long common boundary with lot B2, the mansion lot.
Interestingly, the driveway from Bushnell Dr. was not shown on
this plan and the plan reflects that "[w]hereas Lots 3-C and 3-B
are not separate building lots" approval under the subdivision
control law was not required. Notes on the plan also reflected
that lot 3-B was "to be conveyed to" the Kanters, who earlier
had purchased lot B2, the mansion lot, from the Bridgmans. 7
Indeed, the Kanters took lot 3-B from that lot's then owner, the
Bushnells, "subject to a driveway easement of record for the
benefit of the land of the grantees," and with the benefit of a
water and sewer easement over lot 3-A, and with the restriction
that no dwelling could be constructed on lot 3-B prior to
October 30, 1978. The judge found that "the Bushnells and the
Kanters agreed to the conveyance of [lot 3-B] to give the
Kanters the ability to build a second, additional residence on
6 The plan also showed lot 3-C, a small 4,133 square foot lot in
the southwest corner of lot 3B. Notes reflected that lot 3-C
was to be conveyed to another couple, the Shrocks.
7 According to certain documents recorded in the Middlesex South
Registry, of which the judge took judicial notice, the Bridgmans
conveyed original lot B2 to Irving and Gladys Kanter in 1966.
4
the Kanters' lands, including their new" lot 3-B. The judge
further found that Mr. Kanter later "explained to Mr. Moriarty
the 'pressure' Kanter was under in the late 1960s to build a
second house near the mansion for his daughter. The result was
the Kanters' purchase of Lot 3-B." In addition, the judge found
that although there was a restriction against building an
additional home within ten years on lot 3-B, the water and sewer
easement benefitting lot 3-B "evidences an intent for a dwelling
to be constructed on Lot 3-B after" the ten-year restriction
expired.
Together, the defendants currently own lot B2 (the mansion
lot) and lot 3-B, the lot lines of both of which were
reconfigured in 2002 when their predecessors recorded an ANR
plan that combined all but the southeast corner of the mansion
lot and a sliver of lot 3-B to create lot 10D, containing
127,350 square feet and including the mansion. In addition, a
rectangular portion of the southeast corner of lot B2, with
frontage on Waltham Street, was connected to a large rectangular
portion of lot 3-B by an extension of the driveway on lot B2 to
create lot 10E, containing 82,391 square feet.
Defendants Iqbal and Samina Quadir own lot 10D; the
defendant trustee of the Bushnell Trust, of which the Quadirs
are the beneficiaries, own lot 10E. As none of the issues turn
5
on the exact ownership interest, we refer to them collectively
as the defendants or the Quadirs.
b. Procedural posture. Moriarty and McPhillips purchased
lot 3-A on December 29, 1993. The parties had disagreements
regarding the driveway when each sought to modify it to improve
their properties. The Quadirs presented to the plaintiffs a
plan to modify the driveway but did not seek approval from the
town for the plan. Moriarty and McPhillips rejected the plan.
Moriarty and McPhillips commenced this action in the Land
Court seeking a declaratory judgment that the defendants' use of
the common driveway for an additional house will overburden,
overload, and exceed the scope of the easement (count 1). The
Quadirs filed an answer and several counterclaims. The Quadirs
sought a declaratory judgment that they are entitled to (i) use
the driveway for all purposes for which streets and ways are
commonly used in the town, (ii) develop lot 10E for residential
purposes, and (iii) improve the easement by bringing the
driveway up to code and making it safe for emergency and other
large vehicles to traverse. They also claimed that they had
acquired an easement by prescription (counterclaim II); 8 and
claimed that the plaintiffs had "trespassed" on the easement by
placing boulders and other impediments along the driveway and
8 The judgment dismissed counterclaim II with prejudice and the
Quadirs make no argument related to it on appeal.
6
constructing an addition to their home that encroached upon the
easement (counterclaim III).
Certain issues were resolved at summary judgment; the judge
ruled that "in 1968, when the Bushnells conveyed to the Kanters
Lot 3-B, implied within that grant was an easement for the
benefit of Lot 3-B along the driveway that crossed Lot 3-A at
that time." The judge also ruled that the defendants' "latest
ANR parcels" -- lots 10D and 10E -- have easement rights and
that trial would determine their scope and extent.
The judge stated that following the summary judgment
ruling, four issues remained for trial: (1) the location of the
implied 1968 easement; (2) whether that easement included the
right to construct and access a single-family residence on lot
10E; (3) whether plaintiffs had unreasonably interfered with the
Quadirs' rights under that easement; and (4) whether the
plaintiffs had unreasonably interfered with the Quadirs' rights
under the 1958 driveway easement. After trial, the judge
concluded that the implied 1968 easement was in the same
location as the 1958 easement; that the notation on the 1968
plan that "Lots 3-C and 3-B" are not separate building lots
points out only that lot 3-B was not at the time of conveyance a
lawful separate building lot but could become so after the
expiration of the deed's express restriction; and that the
Quadirs had proved that the Bushnells and the Kanters intended
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the 1968 easement to be "for such purposes that are reasonably
necessary for construction of (and later access to) a single-
family residence on Lot 3-B." The judge also concluded that the
width of the driveway is presumed to be "a convenient width for
all the ordinary uses of free passage to and from [the
landlocked] land" (quotation omitted). Finally, the judge held
that the plaintiffs had not yet interfered with the Quadirs'
1968 easement and that although the plaintiffs had interfered
with the Quadirs' 1958 easement rights in two respects, those
impediments had been removed. The judge rejected the argument
that the plaintiffs' refusal to agree to improvements to the
driveway suggested by a landscape architect constituted
interference with the driveway easement where the plan did not
show the minimum requirements needed to assure safe access to
lot 10D and the mansion. He also concluded and declared that
the Quadirs' right to use and maintain the 1958 easement
included the right to place gravel, clear brush and limbs,
change the easement's grade, or realign it for travel-safety
reasons, so long as the improvement is "reasonably necessary for
enjoyment of the dominant estate" and "does not 'unreasonably
increase the burden on the servient tenement [quotation
omitted]." Finally, the judge concluded that the Quadirs have
the right to widen the easement "if reasonably necessary for the
enjoyment of [the dominant estate] and so long as such
8
improvements do not unreasonably increase the burden of the
driveway on [the servient estate]."
Discussion. "We review a grant of summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to judgment as a
matter of law." Assad v. Sea Lavender, LLC, 95 Mass. App. Ct.
689, 693 (2019) (quotations omitted). After trial, we review
factual findings for clear error; a judge's findings of fact
"must stand if warranted on any view of the evidence and all
reasonable inferences therefrom." Norton v. West, 8 Mass. App.
Ct. 348, 350 (1979). See Blakeley v. Gorin, 365 Mass. 590, 600
(1974) (specific finding adequately supported by the evidence
must be accepted "as final and true" [quotation omitted]). "We
review the judge's determination regarding the existence of an
easement in private ways under a 'clearly erroneous' standard."
Perry v. Nemira, 91 Mass. App. Ct. 12, 16 (2017). We review
questions of law de novo. Trace Constr., Inc. v. Dana Barros
Sports Complex, LLC, 459 Mass. 346, 351 (2011).
We reach only the issues argued by the parties in their
briefs. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481
Mass. 1628 (2019).
1. The 1968 implied easement. The judge found that the
Quadirs have an easement by implication over the driveway on lot
9
3-A, in the same location as the 1958 driveway. In essence the
plaintiffs argue that there was no need for the judge to declare
that there was an implied easement created by the 1968
conveyance of lot 3-B to the Kanters because "[w]ith an
expressly granted legally and physically existing driveway
access easement benefitting and leading to lot 3-B in place,
there was no basis in fact or law for creation of another one in
the same location" in 1968. They further argue that "the
Kanters' right to use the 1958 Easement for access to and egress
from Lot 3-B, which was appurtenant to lot [B1] from which it was
derived, was included in the conveyance of Lot 3-B to them. No
additional easement could have been created in the same location
and for the same purpose in 1968."
There can be no question that the portion of lots 10E and
10D that is comprised of lot B2 has an express easement pursuant
to the 1958 deed. That easement did not change when lot 3 was
divided into lots 3-A and 3-B. Moriarty and McPhillips do not
contend otherwise. And it is true that the deed that created
the original driveway easement indicates that the driveway
easement also benefitted lot B1. However, when lots 3-A and 3-B
were held as a single lot by a common owner, the single lot
could not have an easement over itself. But, as the judge
noted, "[a]n implied easement (also known as an 'easement by
implication') can be created by operation of law when the
10
ownership of a unified property is severed into two adjacent
parcels." Lavoie v. McRae, 102 Mass. App. Ct. 14, 19 (2022).
"The controlling question is whether the circumstances of the
severance demonstrate that the parties intended that the owner
of one of the resulting parcels be able to make some use of the
other parcel even though no express easement was recorded. . . .
Such an intent generally will be found only where the parties
seeking to benefit from the easement can prove that it is
'reasonably necessary' for their use and enjoyment of their
land." Id. at 19-20, quoting Supraner v. Citizens Sav. Bank,
303 Mass. 460, 464 (1939). Here, lot 3-B would be landlocked
without an easement over lot 3-A. "Where absolute physical
necessity is shown, such proof alone generally is sufficient to
find that an implied easement was created." Lavoie, 102 Mass.
App. Ct. at 20.
The plaintiffs point out, however, that when lot 3-B was
separated from lot 3-A, lot 3-B was granted a sewer and water
easement over a portion of lot 3-A, connecting Bushnell Drive
directly to lot 3-B without the need to traverse the U-turn or
any portion of the driveway. 9 Indeed, the driveway was not even
9 The deed separating lot 3-B from lot 3-A provided, for the
benefit of lot 3-B, an express right "to [i]nstall and maintain
sewer and water pipes within that portion of Lot 3-A shown as
Twenty (20) foot sewer and water easement, but in so doing, the
grantees or their successors in title must restore said premises
to the condition in which they found them."
11
shown on the 1968 plan referred to in the deed that granted lot
3-B to the Kanters. Thus, the plaintiffs in effect contend that
we should apply the canon of construction "inclusio unius est
exclusio alterius," that is, inclusion of one thing is an
implied exclusion of another. See Miles-Matthias v. Zoning Bd.
of Appeals of Seekonk, 84 Mass. App. Ct. 778, 789 (2014). Cf.
Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19,
22 (2021) (canon "must be applied with caution"). In other
words, because the drafters provided a utility easement, we
understand the plaintiffs to argue, they could not have intended
to include any other easement.
The judge, however, appropriately focused on other factors.
He noted the trial evidence that indicated it was the Kanters'
intent to construct a home on lot 3-B "separate from the
Mansion," albeit after 1978, and found that such intent is in
fact supported by the water and sewer easement, which would make
development easier. In these circumstances, where the sewer and
water easement served a very specific purpose unrelated to
access by vehicle, we agree with the judge that the inclusion of
the sewer and water easement did not demonstrate an intent to
eschew an access easement. The parties agreed that, at the time
the lots were separated, the driveway ran across the bottom of
lots 3-B and through lot 3-A, was actively used to access all of
lot 3, and that lot 3-B had no alternative means of egress. The
12
deed, plans, and affidavits support the judge's conclusion that
the parties intended that lot 3-B would benefit from an easement
across lot 3-A and, thus, we affirm the judge's conclusion that
an easement by implication arose over lot 3-A for the benefit of
lot 3-B when the lots were separated.
2. Overburdening the easement. The plaintiffs argue that
the judge erred in concluding that the use of the implied
easement to build a single-family residence on lot 3-B would not
overburden or overload 10 the easement. "To overburden an
easement means to use it 'for a purpose different from that
intended in the creation of the easement.'" Kubic v. Audette,
102 Mass. App. Ct. 228, 230 (2023), quoting Taylor v. Martha's
Vineyard Land Bank Comm'n, 475 Mass. 682, 685 n.11 (2016). "It
is true that an easement granted in general and unrestricted
terms is not limited to the uses made of the dominant estate at
the time of its creation, but is available for the reasonable
uses to which the dominant estate may be devoted." Kubic, supra
at 231, quoting Hewitt v. Perry, 309 Mass. 100, 105 (1941).
10The term "overload" refers to circumstances where an easement
is used to serve land other than that to which the easement is
appurtenant. See Taylor v. Martha's Vineyard Land Bank Comm'n,
475 Mass. 682, 685 n.11 (2016). Although the plaintiffs
generally assert that construction of a single-family home would
also "overload" the easement, they have made no separate
argument in support of their contention, and we consider it
waived.
13
When lot 3 was created, the other lots on the January 1968
ANR plan were divided into much smaller residential lots. That
lot 3 was further divided could not have been unexpected. The
parties agreed that lot 3-B was zoned as a single-family
residential lot under the town's zoning bylaws in 1968. Nothing
seemingly would have prevented constructing a house on lot 3-B
after October of 1978. Whether we look at 1958 when lots B1
(3.19 acres) and B2 (7.21 acres) were created, or the January
1968 plan that shows lot 3 as substantially larger than the
other lots, or the July 1968 plan showing the division of lot 3
into lots 3-A and 3-B with the specific notation that lot 3-B
would be conveyed to the abutters and benefit from a water and
sewer easement, we cannot agree that the addition of a single-
family home to lot 10E is inconsistent with "normal development"
or what "might have been anticipated" for the property. See
Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 83-84 (2004). Where
the evidence credited by the judge indicates that the purpose of
the transfer of lot 3-B to the Quadirs' predecessor was for the
eventual construction of a single-family home, we conclude that
the proposal to use the driveway to access a single-family home
on lot 10E does not overburden the easement.
3. Right to realign and widen the driveway. Although they
do not quibble with much of what the judge declared to be the
scope of the defendants' easement, the plaintiffs contend that
14
the judge erred in concluding that the Quadirs may "realign" and
"widen" the driveway if "reasonably necessary for enjoyment of
Lot B2 and so long as such improvements do not unreasonably
increase the burden of the driveway on the owners of Lot 3-A." 11
The plaintiffs contend that the defendants may not relocate the
1958 easement by realigning it and widening it without the
consent of the owners of the servient estate. See M.P.M.
Bldrs., LLC v. Dwyer, 442 Mass. 87, 90 (2004) (discussing the
Restatement [Third] of Property [Servitudes] § 4.8[3] [2000],
which permits a servient estate to make reasonable changes in
the location or dimensions of an easement and noting that
§ 4.8[3] is a default rule, "to apply only in the absence of an
express prohibition against relocation in the instrument
creating the easement and only to changes made by the servient,
not the dominant, estate owner" [emphasis added]).
We disagree that, by declaring that the Quadirs had the
right to "realign" and "widen" the easement, the judge
authorized the Quadirs to "relocate" the easement. As the judge
noted, it is well-established that the holder of an easement has
the duty to make repairs and improvements necessary for
enjoyment of the easement, so long as the burden on the servient
11The plaintiffs concede in their reply brief that they do not
challenge the defendants' right to grade and make physical
improvements to the driveway within the boundaries of the 1958
easement.
15
estate is not unreasonably increased. See Guillet v. Livernois,
297 Mass. 337, 340 (1937) (right of way easement held to include
right to make it "passable and usable for its entire width,
having due regard to the rights and interests of others,"
following from "general principle that when an easement or other
property right is created, every right necessary for its
enjoyment is included by implication" [quotation omitted]).
Where the easement consists of a right of way, the easement
holder has the right to use the surface for passing and
repassing; thus, repairs and improvements necessary for
enjoyment of this right of way may include leveling, graveling,
ploughing, paving, and other improvements necessary to make the
way passable and usable in a reasonably safe manner. See
Chatham Conservation Found., Inc. v. Farber, 56 Mass. App. Ct.
584, 589 (2002) ("the right to pass and repass has been found to
include all rights reasonably incidental to the enjoyment of the
right to pass, including the right to make reasonable repairs
and improvements to the right of way"). See also Mt. Holyoke
Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513, 514 (1937)
(holder of stairway easement permitted to make repairs that
extended beyond stairway as that was deemed reasonably necessary
in order to make stairway passable and usable); Barlow v.
Chongris & Sons, Inc., 38 Mass. App. Ct. 297, 300 (1995) (holder
of driveway easement had right to pave easement and install
16
guard rails); Tindley v. Department of Envtl. Quality Eng'g, 10
Mass. App. Ct. 623, 627-628 (1980) (where right of way easement
to river impassable at low tide, easement holder entitled to
build foot ramp over right of way as reasonably necessary to
permit intended use).
There was no error in the judge declaring that the Quadirs
have the right to realign and widen the roadway of the easement
to the extent that this may be reasonably necessary for safe
passage and as long as such realignment and widening does not
unreasonably burden the servient estate. See Hodgkins v.
Bianchini, 323 Mass. 169, 172-173 (1948) (1820 grant of right of
way in "cart road" did not limit way to width of vehicles then
in common use); Glenn v. Poole, 12 Mass. App. Ct. 292, 296
(1981) (flaring out roadway at entrance for safety was within
dominant estate's right to make necessary repairs and
improvements and so minor as to not inconvenience servient
estate). However, as the judge pointed out, whether and to what
extent realigning and widening is reasonably necessary for
enjoyment of the easement, and whether any such improvements
17
will unreasonably increase the burden on the servient estate,
have not been established or determined. 12
Judgment affirmed.
By the Court (Massing,
Ditkoff & Singh, JJ. 13),
Clerk.
Entered: August 28, 2023.
12The plaintiffs contend that the judge erred in concluding that
they had interfered with the defendants' 1958 easement. Where
the judge concluded that any impediment to the easement had been
removed and declined to issue any orders on this issue, the
matter is moot and we need not determine whether the judge's
initial factual findings on this issue were correct.
13 The panelists are listed in order of seniority.
18