Perry v. Aiello

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16-P-1309 Appeals Court
SAMUEL D. PERRY & others,1 trustees,2 & another3 vs. VIRGIL
AIELLO & others.4
No. 16-P-1309.
Suffolk. May 3, 2017. - September 19, 2017.
Present: Kinder, Henry, & Desmond, JJ.
Easement. Way, Private. Real Property, Easement, Restrictions.
Adverse Possession and Prescription. Practice, Civil,
Injunctive relief.
Civil action commenced in the Land Court Department on June
11, 2013.
The case was heard by Robert B. Foster, J.
1
Eugene H. Clapp, III, and William W. Park.
2
Of the 63 Beacon Street and 64 Beacon Street, Boston,
Massachusetts, Trusts for the Benefit of King's Chapel.
3
66 Beacon Street, LLC. The plaintiffs shall be referred
to, collectively, as the "King's Chapel and LLC plaintiffs."
4
DeLuca's Market, Corp.; Robert Aiello; and James S. Hughes
and Stewart Grossman, as trustees of the Virgil J. Aiello 2011
Irrevocable Trust and as trustees of the Candace Jans Aiello
2011 QTIP Trust. The defendants shall be referred to,
collectively, as the "DeLuca defendants."
2
Diane C. Tillotson for the plaintiffs.
W. Paul Needham for the defendants.
HENRY, J. The trustees of the 63 Beacon Street and 64
Beacon Street, Boston, Massachusetts, Trusts for the Benefit of
King's Chapel (the King's Chapel trustees); 66 Beacon Street,
LLC (LLC); and the DeLuca defendants own abutting properties,
and dispute the extent of the rights the DeLuca defendants have
in a ten-foot wide passageway which runs between the King's
Chapel property on one side, and the DeLuca and LLC properties
on the other side. A judge of the Land Court concluded that a
1947 agreement between the parties' predecessors in interest is
partially enforceable and limits the DeLuca defendants' use of
the portion of the passageway they do not own but over which
they have a right of passage. The judge rejected the DeLuca
defendants' assertion that they have acquired by prescription
the right to park on the passageway, but concluded that they may
temporarily stop a truck in the passageway once per day to load
trash and transport it off site. We affirm in part and reverse
in part.
Background. The DeLuca defendants own four lots in the
Beacon Hill section of Boston at 7-17 Charles Street which,
since before 1920, have housed DeLuca's Market, a grocery and
wine store. DeLuca's Market is bounded by Charles Street to the
west, Branch Street to the north, 65-66 Beacon Street (owned by
3
the LLC) to the south, and the passageway to the east. Across
the passageway is 63-64 Beacon Street, owned by the King's
Chapel trustees, which runs the full length of the passageway
and abuts Branch Street to the north and Beacon Street to the
south. The LLC property, 65-66 Beacon Street, is bounded by the
DeLuca defendants' property to the north, the passageway to the
east, and Beacon Street to the south. The judge found and the
parties do not dispute that each party owns the fee to the
center of the portion of the passageway abutting its property.
This case centers on the nature and extent of the DeLuca
defendants' rights to use the passageway.
In 1947, the parties' predecessors in interest entered into
an agreement that provides in paragraph 1 that "appurtenant to"
the King's Chapel and LLC properties is the right to use the
"entire passageway . . . for all purposes for which streets or
ways are from time to time commonly used in Boston." It further
provides in paragraph 2 that "appurtenant to" the DeLuca
property is the right to use the passageway "for travel on foot
and with hand carts" between the DeLuca property and Branch
Street, "expressly excluding the right to place garbage or
rubbish receptacles therein or to use said passageway for
purposes other than those stated in [paragraph 2]."5 Paragraph 7
5
The DeLuca defendants allege that the 1947 agreement,
entered into just before the property was conveyed to their
4
provides that the DeLuca property shall be subject to the
foregoing "restriction" for the benefit of the King's Chapel and
LLC properties, and paragraph 9 provides that the agreement
shall be binding on the parties' successors and assigns and
"[n]o rights, other than those hereby established, shall be
appurtenant hereafter to the [DeLuca property]." The DeLuca
property thereafter was conveyed to the DeLuca defendants'
predecessors in interest subject to the 1947 agreement.
Some sixty-six years later, in June, 2013, the King's
Chapel and LLC plaintiffs commenced this action seeking
declaratory and injunctive relief as to the DeLuca defendants'
use of the passageway.6 The DeLuca defendants responded to the
complaint and, as an affirmative defense, asserted a
prescriptive right to park in the passageway. The trial judge
concluded that paragraph 2 of the 1947 agreement restates and
sets forth affirmative easements, and that paragraph 7 sets
predecessors in interest, and limiting their use of the
passageway, was the result of a collusive transaction among the
owners of the subject properties, all of which were then owned
by various members of one family either individually or as
trustees. The DeLuca defendants further assert that the
agreement was designed to "severely limit what the Italian
grocer buyers . . . would be able to do in the [p]assageway."
We express no opinion on this factual point.
6
Since at least 2000, the DeLuca defendants have at times
parked one or more cars in the passageway, and their service
workers have parked in the passageway several times per year.
Since 2013, their employee or agent has regularly backed a truck
into the passageway and loaded trash for transport to another
location.
5
forth restrictions. The result, the judge concluded, is that
the provision in paragraph 2 limiting the use of the passageway
to travel by foot and hand-cart use is an affirmative,
"restated" easement, and thus is enforceable over the portions
of the passageway owned by the King's Chapel and LLC plaintiffs.
The judge concluded that paragraph 7 restricts only the DeLuca
defendants' use of the portion of the passageway that they own,
and that the restriction has expired because it was not extended
by any of the parties. Thus, the judge concluded, the DeLuca
defendants may use their portion of the passageway in any manner
not inconsistent with the rights of any other owner's exercise
of its easement rights, but on the portion of the passageway
owned by the King's Chapel and LLC plaintiffs, the DeLuca
defendants are limited to travel by foot and hand cart use. The
judge also concluded that the passageway is not wide enough to
allow any party to park on it without obstructing access, but
that the DeLuca defendants may stop a truck in the passageway
briefly once per day to load trash, as such use does not
unreasonably impair the plaintiffs' rights. In addition, the
judge determined, based in part on a view of the passageway and
his determinations of witness credibility, that the DeLuca
defendants did not meet their burden of proving that they had
acquired a parking easement by prescription.
6
Discussion. 1. 1947 agreement. With regard to the 1947
agreement, the issue before us is whether the provisions of the
agreement constitute "restrictions" as that term is used in
G. L. c. 184, §§ 23, 26-30, or easements. The difference is not
always readily apparent, and the distinction is outcome
determinative here, as, unlike restrictions, easements do not
become unenforceable with the passage of time. See Labounty v.
Vickers, 352 Mass. 337, 347-348 (1967). See also Patterson v.
Paul, 448 Mass. 658, 663 (2007) ("An affirmative easement is not
considered to be a 'restriction' affecting the use of real
property such that it is subject to the statutory time
limitation imposed by G. L. c. 184, § 23").
In 1947, before the agreement was executed, the parties
owned to the center of the passageway abutting their respective
properties, and enjoyed a right of passage, in common with
others, over the rest of the passageway. See Tehan v. Security
Natl. Bank of Springfield, 340 Mass. 176, 181-182 (1959); Murphy
v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965).
The effect of the 1947 agreement, therefore, was to restrict the
DeLuca defendants' predecessors' existing rights over the entire
passageway.
Restrictions on uses of land generally are disfavored. See
Patterson, 448 Mass. at 662, citing Stop & Shop Supermkt. Co. v.
Urstadt Biddle Properties, Inc., 433 Mass. 285, 290 (2001).
7
"The Legislature has maintained this policy by limiting the
duration of restrictions that are unlimited as to time . . . ,
and by establishing a procedure through G. L. c. 184, §§ 26-
30,[7] by which a landowner may 'remove or prevent the
enforcement of obsolete, uncertain or unenforceable
restrictions.'" Stop & Shop Supermkt. Co., supra, quoting from
Labounty, 352 Mass. at 348.
We agree with the judge's conclusion that pursuant to
c. 184, § 28, the restriction on the portion of the passageway
owned by the DeLuca defendants terminated after fifty years, in
September, 1997, there having been no extension filed. The
7
As relevant here, § 26 provides that
"[a]ll restrictions on the use of land or construction
thereon which run with the land subject thereto and are
imposed by covenant, agreement, or otherwise, whether or
not stated in the form of a condition, in any deed, will or
other instrument executed by or on behalf of the owner of
the land or in any order of taking shall be subject to
. . . [G. L. c. 184, §§ 27-30]."
G. L. c. 184, § 26, as appearing in St. 1990, c. 520, § 2.
Section 28 provides, in pertinent part:
"No restriction imposed before January first, nineteen
hundred and sixty-two shall be enforceable after the
expiration of fifty years from its imposition unless a
notice of restriction is recorded before the expiration of
such fifty years . . . and in case of such recording,
twenty years have not expired after the recording of any
notice of restriction without the recording of a further
notice of restriction."
G. L. c. 184, § 28, inserted by St. 1961, c. 448, § 1.
8
judge treated separately, however, the portion of the passageway
owned by the King's Chapel and LLC plaintiffs and over which the
DeLuca defendants had a right of passage, and concluded that the
DeLuca defendants' rights over that portion of the passageway
were easements unaffected by § 28. In imposing restrictions,
however, the 1947 agreement itself did not expressly distinguish
between the portion of the fee owned by the DeLuca defendants'
predecessors and the portion those predecessors had a legal
right to use derived from their ownership of a portion of the
passageway. Contrary to the trial judge's conclusion, nothing
in paragraphs 2 and 7 of the agreement suggests that one
paragraph restricts the portion of the passageway owned by
DeLuca's predecessors and the other paragraph grants easements
over the portions owned by the King's Chapel and LLC plaintiffs'
predecessors.
While paragraph 2's "appurtenant to" language, in part,
apparently caused the judge to conclude that paragraph 2 of the
1947 agreement contained a "restated easement," we disagree.
The agreement gave the DeLuca defendants' predecessors nothing
that they did not already have. To the contrary, it restricted
the predecessors' rights. The DeLuca defendants' predecessors
enjoyed an unrestricted right over the passageway, in common
with others, and the agreement served to restrict those rights.
Pursuant to c. 184, § 26, the statute extends to "[a]ll
9
restrictions on the use of land" and pays no attention to
labels. See Myers v. Salin, 13 Mass. App. Ct. 127, 136 (1982)
(§§ 23 & 26-30 reflect a legislative intent that
"'restrictions,' with certain carefully specified exceptions
[not at issue here], be regulated in various ways, without
apparent differentiation among the types of interest thereby
produced, the names given to them, or the methods used in their
creation"). We have scoured the language of the statute and
cannot say that its reach does not extend to restrictions of
easement rights, particularly where those easement rights derive
from an ownership interest in a portion of a way and a
corresponding right of passage over the rest of the way. At
least when it comes to a passageway or a street, it is illogical
to apply the statute to only the portion of the passageway the
abutter owns when rights over that section are largely useless
without the corresponding passage rights over the rest of the
way.
It is true that the Supreme Judicial Court has said that
"[a] 'restriction on the use of land' is a right to compel the
person entitled to possession of the land not to use it in
specified ways." Labounty, 352 Mass. at 347. And, furthermore,
an easement, on the other hand, "creates a nonpossessory right
to enter and use land in the possession of another and obligates
the possessor not to interfere with the uses authorized by the
10
easement." Martin v. Simmons Properties, LLC, 467 Mass. 1, 8-9
(2014), quoting from Patterson, 448 Mass. at 663. Here,
however, where the 1947 agreement does not grant anything that
the DeLuca defendants' predecessors did not already have, but
rather restricted their common-law rights, we think the term
"restriction" as used in the relevant provisions of c. 184 is
broad enough to encompass the limitation of the DeLuca
defendants' rights over the entire passageway. If the King's
Chapel and LLC plaintiffs wanted to continue to restrict the
DeLuca defendants' use of the passageway, they were required to
file a notice of extension of the restriction. We conclude that
the restrictions on the DeLuca defendants' right to use the
portion of the passageway they own and the portion owned by the
plaintiffs have expired and are unenforceable pursuant to G. L.
c. 184, § 28.
We comment briefly on the scope of the DeLuca defendants'
easement rights. The judge found that it is not possible to
park in the passageway without interfering with others' right to
pass. Thus, we agree that no party has the right to park in the
passageway. The judge also concluded that a temporary stop of a
vehicle in the passageway once per day to load trash for
transport to another location does not unreasonably impair the
King's Chapel and LLC plaintiffs' right of passage. On the
record presented, we cannot say the judge's conclusion was
11
clearly erroneous. So long as continued temporary stopping once
per day does not unreasonably impede the King's Chapel and LLC
plaintiffs' easement rights, this use may continue.8
2. Prescriptive easement. The DeLuca defendants contend
they have acquired an easement by prescription to park in the
passageway. The evidence on this issue was conflicting and the
judge's conclusion was based in part on his credibility
assessment of witnesses. The judge's conclusion that the DeLuca
defendants had not met their burden is not clearly erroneous or
based upon an incorrect legal standard. See Brown v. Sneider, 9
Mass. App. Ct. 329, 331 (1980); Shapiro v. Burton, 23 Mass. App.
Ct. 327, 330 (1987).
Conclusion. So much of the judgment as declares that the
DeLuca defendants' rights in the passageway are limited by the
restrictions contained in paragraph 2 of the 1947 agreement is
reversed, and the judgment shall be modified consistent with
8
On February 11, 2013, the DeLuca defendants entered into
an agreement known as the "Good Neighbor Agreement" with the
Beacon Hill Civic Association, Inc., which is not a party in
this action. In that agreement, the DeLuca defendants agreed
that "[a]ll trash will be stored inside the market and will be
picked up inside the market in the morning no earlier than 7:00
A.M."; all delivery trucks "will park on Charles Street only
(and not on Branch Street)"; and the DeLuca defendants will
comply "with all legally binding requirements of the recorded"
1947 agreement. We do not pass on the question whether the Good
Neighbor Agreement allows trucks to pick up trash from the
passageway; none of the King's Chapel and LLC plaintiffs is a
signatory to the Good Neighbor Agreement, and so far as the
record reveals, they have no right to enforce it.
12
this opinion. In all other respects, the judgment is affirmed.
In addition, the order denying the King's Chapel and LLC
plaintiffs' motion to amend the judgment is affirmed.
So ordered.