Opinion
No. 11–P–532.
2012-05-24
Kenneth RENDELL & others v. DEPARTMENT OF CONSERVATION & RECREATION & others.
By the Court (CYPHER, COHEN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs and the defendants cross-appeal from a November 1, 2010, amended judgment, ordering that the use of an easement appurtenant to land known as Elm Bank in Dover is restricted to true “emergency access only.” The plaintiffs, homeowners whose properties lie at or near the southern terminus of the easement, seek a more strict interpretation of what may constitute an “emergency.”
The plaintiffs and the Massachusetts Horticultural Society also appealed from the original judgment dated December 2, 2009.
Background. The easement first appears in a 1940 deed, when the Trustees of Dartmouth College conveyed the Elm Bank property to the Stigmatine Fathers, a religious society. One year later Dartmouth disposed of land it held south of Elm Bank, which was developed as a subdivision beginning in 1947 and is now referred to as the Turtle Lane neighborhood, where the plaintiffs live.
Elm Bank was conveyed by the Stigmatine Fathers to the Commonwealth in 1976, and subsequently, pursuant to St.1986, c. 624, a 140–acre portion of Elm Bank was transferred in 1992 to the agency now known as the Department of Conservation and Recreation (DCR), for public park and water supply protection purposes. Later, the DCR was authorized by St.1995, c. 105, to lease approximately thirty-five acres of the property to the Massachusetts Horticultural Society (MHS). A lease, now for a ninety-nine year term, was executed in April, 1996.
The plaintiffs, experiencing increased traffic through their neighborhood as a result of activities of MHS, and rerouting of traffic through the easement during closures of the only street access to Elm Bank, filed an action in the Land Court in April, 2005, alleging that the defendants and their invitees were overburdening the easement in violation of the 1986 legislation. Following trial in 2006, and further posttrial submissions and a hearing, the judge issued a fifty-four page decision restricting the use of the easement for “true emergencies.”
The principal street access to Elm Bank has been from the town of Wellesley, over the Charles River via the one-lane 1898 Cheney bridge located near State route 16.
Analysis. 1. We note at the outset that, as the judge stated, the issue of the scope of the contested easement is to be considered in two parts—the easement as stated in the 1940 deed (hereafter the Stigmatine deed), and the scope of it as stated in St.1986, c. 624. Because the latter is controlling in this case, we consider the judge's decision on it first.
1. The judge determined that after the Commonwealth acquired the Elm Bank property, St.1986, c. 624, was enacted to control the disposition of about 170 acres to individuals and entities for the purposes specified in the act, and subject to its terms and conditions. Section 1 of the act required that any conveyances made were subject to easements stated in the Stigmatine deed. Section 5 stated that in disposition agreements:
“the entrance from Washington street in the town of Wellesley shall be designated as the primary access to the property and use of Turtle Lane, a private way, and the use of a private driveway shall be restricted to emergency access.”
See also Dover v. Massachusetts Water Resources Authy., 414 Mass. 274, 281 (1993).
The defendants assert that the judge erroneously applied § 5 to restrict the easement to emergency access; that § 5 was superseded by St.1995, c. 105, which contains no restrictions on the use of Turtle Lane, and therefore their use of the easement under the broad language in the Stigmatine deed was improperly restricted. There is no merit in these arguments. They are identical to the arguments made to the Land Court judge, who analyzed them in detail. We discern no error in his analysis and for the reasons stated in pages thirty-eight through forty-eight of his decision, we agree § 5 requires that the defendants may only use the easement for emergency access.
There is no significant difference between the arguments of the DCR and MHS.
The judge stressed that heavy vehicles are not permitted to use the easement for access to Elm Bank except during true emergencies. He also opined that closure of the Cheney bridge constitutes an emergency which reasonably permits general use of the easement, but that the defendants cannot schedule large events during that time.
Additionally, the judge concluded that the 1986 act did not result in the abandonment of the Stigmatine easement, or that it was extinguished by nonuse. He also noted that the Legislature is “free to repeal the restriction if it deems appropriate,” and if it does, rights to use the easement would be governed by his interpretation of the terms of the Stigmatine language, which we summarize below.
2. As noted in the margin, the easement stated in the Stigmatine deed is very broad. The scope of an easement granted in general terms must be determined by construing the language in the light of attending circumstances, including its use at the time of creation, and considering its subsequent use. Pion v. Dwight, 11 Mass.App.Ct. 406, 411 (1981).
The Stigmatine deed describes the easement as an appurtenant “right of way for all usual purposes over the existing driveway [in Elm Bank],” running in a southerly direction to Dover Street in Dover.
In examining the use of the easement by the Stigmatine Fathers, the judge found that the driveway was treated as a back entrance with the Cheney bridge as the main entrance. The existing buildings on Elm Bank are closer to the Cheney bridge than to the southern boundary of the property. The land and buildings were used for religious, residential, educational, park, and recreational purposes. The easement was used infrequently for access to the recreational facilities and for the delivery of food and heating oil.
The driveway, a portion of which is paved, otherwise is a narrow, fifteen-foot wide dirt road with a grass strip in the middle. It passes through a flood plain and portions of the immediately surrounding area contain wetlands. The judge found that it is not reasonable to widen the easement, but that it may be maintained and repaired.
Accordingly, the judge determined that the following uses, consistent with the uses by the Stigmatines, are permissible: limited and not continuous vehicular traffic including heavy vehicles, and pedestrian and bicycle traffic; and occasional delivery of construction supplies and equipment. He found that activities such as circuses, movie productions, wedding receptions, business conferences, and similar commercial or large scale events sponsored by MHS are of such an intensity as to be unreasonable uses. He also cautioned that the plaintiffs cannot unlawfully interfere with the defendants' use of the easement.
3. The defendants moved for clarification, amendment, or reconsideration of the December 2, 2009, judgment to address emergency situations which might require access to Elm Bank by vehicles exceeding the twelve-ton weight limit of the Cheney bridge. The judge ruled on several specific situations in a detailed amended judgment which the defendants do not challenge. The plaintiffs, however, complain that the judge erred in including a number of what they characterize as “day-to-day maintenance tasks.” To the contrary, the judge's decision carefully circumscribes uses of the easement for activities which clearly qualify as responses to meet exigencies. We discern no error in the decision.
The plaintiffs and DCR briefly refer in their briefs to a question of the Commonwealth's immunity summarily disposed of by the judge. Because the parties have not advanced a proper appellate argument, we do not consider it. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In his earlier decision, the judge stated that he recognized that his decision “may lead to further litigation in the way of contempt proceedings, as the defendants stress[ed] in their post trial briefs .” Given the amended judgment and the judge's even-handed analysis throughout this case, the parties now have a clear guide to their rights and obligations which, if reasonably observed, should enable them to resolve future differences and live as neighbors.
Judgment dated December 2, 2009, affirmed.
Amended judgment dated November 1, 2010, affirmed.