Opinion
21-P-865
09-29-2022
S&J GULF LLC v. ERIN CAVAZZA[1] & another.[2]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from an order of a Superior Court judge allowing the plaintiff's motion for a preliminary injunction. We affirm.
1. Background.
The parties are abutting commercial entities that share a twelve foot-wide paved right of way located between the two properties. The plaintiff owns four feet of the right of way; the defendant owns eight feet. The right of way provides access to the rear of both properties. The parties do not dispute that the deeds established a right of way, but the defendants claim that the right of way was extinguished under four separate theories.
The plaintiff filed a complaint in the Superior Court, alleging in pertinent part that the defendants parked cars in the right of way, which prevented employees of the plaintiff from accessing it. After a hearing on the plaintiff's request for a preliminary injunction, the judge found that the right of way exists to provide access to the rear of each property for the benefit of both parties, and that the defendants obstructed the plaintiff's access to the rear of its property by parking cars in the right of way. The judge preliminarily (1) ordered the defendants to remove all obstructions, (2) enjoined both parties from obstructing the right of way, and (3) enjoined the defendants from interfering with the plaintiff's right to use the right of way. This appeal followed.
The complaint alleged: continuing trespass; intentional obstruction of a right of way; fraud in the inducement/intentional misrepresentation; and violation of G. L. c. 93A, § 11.
2. Discussion.
"We review the grant or denial of a preliminary injunction for abuse of discretion." Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 574 (2012). In doing so, we look to "the same factors properly considered by the judge in the first instance." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616 (1980).
A party moving for a preliminary injunction must show (1) a likelihood of success on the merits; (2) that a substantial risk of irreparable harm will result from denial of the injunction; and (3) that, in light of the moving party's likelihood of success on the merits, the risk of irreparable harm to the moving party outweighs the potential harm to the nonmoving party if the injunction is granted. Foster v. Commissioner of Correction, 488 Mass. 643, 650 (2021). "A preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation." Doe v. Superintendent of Sch. of Weston, 461 Mass. 159, 164 (2011).
a. Likelihood of success on the merits.
The defendants contend that the plaintiff is not likely to succeed on the merits of its claims because the right of way was not granted for the benefit of the plaintiff, and if it was, the right of way was extinguished by abandonment, frustration of purpose, adverse acts or prescription, and eminent domain. We address each in turn.
An easement may be extinguished by, among other things, "grant, . . ., abandonment, . . . or prescription." Delconte v. Salloum, 336 Mass. 184, 188 (1957).
i. Grant.
The defendants contend that the right of way was created to allow them -- and not the plaintiff -- access to the rear of the buildings. This claim is unavailing, as the deeds and plans established the right of way through a grant of general right, "to be used in common with all others lawfully entitled thereto," and not for a particular purpose. Put another way, there are no provisions that restrict the use the right of way. As a result, it may be used for "such purposes as are reasonably necessary to the full enjoyment the premises to which the right of way is appurtenant." Tehan v. Security Nat'l Bank of Springfield, 340 Mass. 176, 182 (1959). See Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass.App.Ct. 789, 794-795 (2009).
ii. Abandonment.
To succeed on a theory of abandonment, the defendants must prove that "acts by the [plaintiff] conclusively and unequivocally manifest[ed] either a present intent to relinquish the easement or a purpose inconsistent with its further existence" (citations omitted). First Nat'l Bank of Boston v. Konner, 373 Mass. 463, 466-467 (1977). Mere nonuse of an easement created by grant does not amount to abandonment. See Lasell College v. Leonard, 32 Mass.App.Ct. 383, 390 (1992). Moreover, there is no evidence that the plaintiff intended to abandon the right of way. To the contrary, the record demonstrates that the plaintiff used the right of way to temporarily park cars, carry trash to the dumpster in the rear of its building, and access the waste tank in the same location. The construction of the berm on the plaintiff's property, similarly, did not constitute abandonment. In contrast to the six-foot stockade fence at issue in Lasell College, 32 Mass.App.Ct. at 386, on which defendant relies, the berm does not block the plaintiff's access to the easement. The defendants failed to meet their heavy burden to establish abandonment. See Proulx v. D'Urso, 60 Mass.App.Ct. 701, 704 n.2 (2004).
iii. Frustration of purpose.
This narrow doctrine applies when, as a permanent matter, it is physically impossible for the plaintiff to exercise an easement for the purpose for which it was created. See Makepeace Bros., Inc. v. Barnstable, 292 Mass. 518, 524-525 (1935). Here, the defendants contend that the plaintiff cannot access the right of way due to a berm and sign that, they claim, "block its property off," and that the plaintiff's "actions in dumping waste and trash" at the side of the building contributed to its difficulty accessing the side and rear of the building. These "obstructions," as the defendants refer to them, can be removed and therefore are not permanent. Moreover, the defendants did not prove that these "obstructions" make foot and automobile traffic an impossibility.
The defendants also claim that the right of way was extinguished under the doctrine of frustration of purpose when the town paved and installed a curb where the right of way meets the street (where the businesses are located). The defendant cites no case where an easement granted for general purposes was extinguished due to a lack of street access, and we have found none. Additionally, there is no evidence that the right of way was created for the purpose of reaching Main Street. The curb does not prevent either party from using the right of way to access the trash and waste tank at the rear of the properties. See First Nat'l Bank, 373 Mass. at 468.
iv. Adverse acts and prescription.
To succeed on a claim of extinguishment by prescription, the defendants must prove that they "have rendered the use of the easement practically impossible for [twenty years]" (citation omitted). Leahy v. Graveline, 82 Mass.App.Ct. 144, 149 (2012). See Cater v. Bednarek, 462 Mass. 523, 528 n.16 (2012). The defendants allege that their "predecessors in title parked cars over the right of way, beginning in 1960, and very possibly continuing until . . . 1994." In support of this allegation, the defendants submitted affidavits and photographs that, they suggest, demonstrate that the right of way was extinguished previously. This evidence was vague at best, and taken as a whole, did not establish that the predecessors in title consistently maintained obstacles "adverse to every claim by [the plaintiff], and incompatible with the existence of the [right of way]." New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1931).
v. Eminent domain.
The defendants claim that the right of way was extinguished when, as addressed supra, the town constructed a curb where the right of way meets the street. A municipality's decision to pave part of a street does not extinguish easement rights over the rest of it. See Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co., 89 Mass.App.Ct. 594, 600-601 (2016). Moreover, the town did not take any property by eminent domain, as the properties were subject only to temporary construction easements and never taken in fee. Therefore, the right of way was not extinguished under this theory.
The defendants made no argument in their brief about the risk of irreparable harm to the plaintiff if the injunction was denied, nor the balancing of the potential harms to each party.
The plaintiff demonstrated that irreparable harm would result from the denial of the injunction. The defendant's conduct, including parking cars in the right of way, could constitute continuing trespass. See Melrose Fish and Game Club, Inc., 89 Mass.App.Ct. at 602-603. When confronted with a continuing trespass, the correct remedy is enjoining the action rather than awarding monetary damages. See Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235, 247 (2021). Moreover, the risk of irreparable harm to the plaintiff outweighs any alleged risk of harm to the defendants. The defendants' business has sufficient parking, and they have never claimed otherwise. Additionally, the defendants acknowledged that they have not used the right of way for "well over a decade."
Order allowing motion for preliminary injunction affirmed.
By the Court
The panelists are listed in order of seniority.