Mazzola v. O'Brien

• Court: Appeals Court of Massachusetts
• Writing for the Court: GRANT, J.
• Citation: Mazzola v. O'Brien, 178 N.E.3d 870 (Mass. App. 2021)
• Decision Date: 15 October 2021
• Docket Number: No. 20-P-899,20-P-899
• Parties: Philip J. MAZZOLA, trustee, v. John F. O'BRIEN & another.

178 N.E.3d 870

Philip J. MAZZOLA, trustee,¹

v.John F. O'BRIEN & another.²

No. 20-P-899

Appeals Court of Massachusetts, Essex.

Argued April 7, 2021.

Decided October 15, 2021.

William H. Sheehan, III, Peabody, for the plaintiff.

Meredith A. Fine, Gloucester, for the defendants.

Present: Milkey, Hand, & Grant, JJ.

GRANT, J.

The issue presented is whether defendants John F. and Bonita J. O'Brien (collectively, O'Briens) may drive all-terrain vehicles (ATVs) on an easement appurtenant to their property for the limited purpose of accessing a beach in Gloucester. The easement burdens the property of plaintiff Philip J. Mazzola, as trustee of the Seventeen Wingaersheek Realty Trust, who argues that the scope of the easement is limited to pedestrian traffic and that G. L. c. 90B, § 26 (e ), prohibits the O'Briens from driving ATVs on the easement. Following a jury-waived trial on Mazzola's claims that the O'Briens were overburdening the easement and creating a nuisance, a judge of the Superior Court found in favor of the O'Briens. Mazzola appeals, and we affirm.

Background. We set forth the facts as found by the trial judge, supplemented by undisputed facts from the record. In 1960, Bengt Eriksson, as trustee of the Ellis Farm Trust, bought two parcels of land that he then further divided. Some of the resulting parcels fronted on the beach, while others did not. At issue here are lot 10 (a lot with direct beach access that is now owned by Mazzola) and lot D (a lot without direct beach access that is now owned by the O'Briens). In 1963, lot 10 was sold to Mazzola's predecessor-in-interest. The deeds in Mazzola's chain of title stated that the premises were conveyed subject to a fifteen-foot wide easement "for the benefit of all persons at any time owning or leasing any part of the remaining land of the grantor, or being lawfully invited to any part of said land, to pass and repass to and from the beach area, and for all other purposes for which right of ways are customarily used." In 1965, lot D was sold to one of the O'Briens’ predecessors-in-interest, and the deeds in the O'Briens’ chain of title conveyed the right to use the easement on lot 10.³

The easement, as described in the various deeds, is fifteen feet wide and 450 feet long. It runs from Wingaersheek Road to the beach. From Wingaersheek Road to the edge of the sand dunes on the beach, the easement is a gravel path that also serves as Mazzola's driveway. Where the gravel path meets the sand dunes, the easement changes to a sandy area bordered on either side by beach grass. Although the easement is described in the various deeds as fifteen feet wide, the sandy area is only a few feet wide, and people passing over the easement -- whether by foot or ATV -- usually attempt to stay within the confines of the sandy area, thereby avoiding the beach grass.

As acknowledged by the trial judge, the evidence regarding vehicular use of the easement prior to 1994 was "scant." However, there was testimony from a former neighbor, who lived in the area from 1967 to 1999 and who had the right to use the easement, that he used to drive an ATV on the easement to get to the beach. The neighbor testified that he would make one round trip on the days that he went to the beach, that his ATV was "quieter than the average motorcycle," and that no one ever complained to him about the fact that he drove an ATV on the easement. The O'Briens purchased lot D in 1978,⁴ and their son testified that, as a boy,⁵ he saw several different types of motor vehicles -- including ATVs -- on the easement. The trial judge credited the neighbor's and the son's testimony on these points.

Meanwhile, Mazzola purchased lot 10 in 1994. The beach house on lot 10 was the year-round residence of Mazzola and his family for three years, at which point it became a vacation property where they lived for significant periods of time in the summer and visited in the spring and fall. In 2005, Mazzola and his wife, their children then grown, moved back to the beach house. They continued to live there year-round until 2008, when they moved and once again began using the beach house as a vacation property.

Mazzola testified that between 2005 and 2008, he mostly saw people traverse the easement by foot, although he sometimes saw ATVs on the easement. During that time period, the ATV use was mostly limited to the O'Briens’ son, who drove an ATV on the easement approximately once every two weeks. From 2008 to 2014, use of the easement began to increase in general -- including both pedestrian and ATV traffic -- which was perhaps attributable to an increase in neighbors renting out their houses. Regardless, the O'Briens’ ATV use did not increase during the 2008 to 2014 time period.

In 2013 or 2014, Mazzola asked several neighbors, including the O'Briens, to stop driving ATVs on the easement. While some neighbors acquiesced to this request, the O'Briens did not. The O'Briens’ ATV use instead increased. As a result of significant physical limitations, Bonita O'Brien had difficulty traversing the easement by foot, and the O'Briens’ ATV enabled her to access the beach. In 2015 and 2016, the O'Briens’ son drove an ATV on the easement at least two or three times per week.

In or around May 2016, Mazzola responded to the O'Briens’ increased use of the easement by installing two concrete bollards at the sand dunes where the gravel path meets the sandy area. The bollards were spaced so that ATVs could not pass. John O'Brien immediately dug up the bollards and left them on the ground on the side of the easement. The removal of the bollards spurred Mazzola to file this lawsuit in October 2016.

During the summer of 2017, the O'Briens’ ATV use again increased. On Labor Day, while Mazzola was not at his beach house, the O'Briens’ son transported Bonita O'Brien and various supplies to and from the beach for a picnic. He made approximately ten round trips in the ATV on the easement, a level of use that had no precedent and was not repeated. Meanwhile, on a security camera, Mazzola was recording those trips across the easement. Mazzola later obtained an injunction prohibiting the O'Briens from driving ATVs on the easement, and the O'Briens complied with the injunction.

Discussion. Mazzola argued below that the O'Briens were overburdening the easement and creating a nuisance because (1) the O'Briens were not permitted to drive ATVs on the easement, and (2) alternatively, the O'Briens’ ATV use had increased to such an extent that it was interfering with Mazzola's quiet enjoyment of title, damaging the sand dunes, and causing dangerous conditions on the easement. On appeal, however, Mazzola argues only that the O'Briens are not permitted to drive ATVs on the easement, either because (1) the scope of the easement is limited to pedestrian traffic, or (2) G. L. c. 90B, § 26 (e ), and the regulations implementing that statute prohibit the O'Briens from driving ATVs on the easement. We address each argument in turn.

1. Scope of the easement. "The general principle governing the interpretation of deeds is that the intent of the parties is ascertained from the words used in the written instrument interpreted in the light of all the attendant facts" (quotation and citation omitted). Assad v. Sea Lavender, LLC, 95 Mass. App. Ct. 689, 693, 129 N.E.3d 878 (2019). The same principles apply when interpreting easements created by conveyance. See, e.g., id. ; Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179, 689 N.E.2d 500 (1998). We accept the trial judge's findings regarding the attendant facts unless clearly erroneous. See Martin v. Simmons Props., LLC, 467 Mass. 1, 8, 2 N.E.3d 885 (2014). But the trial judge's ultimate interpretation of the easement is a question of law, see Assad, supra, that we review de novo, see Martin, supra.

We agree with the trial judge that the scope of the easement is not limited to pedestrian traffic. The easement exists for the benefit of those who purchased Eriksson's land, for them to use "to pass and repass to and from the beach area, and for all other purposes for which right of ways are customarily used." This language does not expressly limit use of the easement to pedestrian traffic, nor do the attendant facts suggest an intent to so limit use of the easement. As noted by the trial judge, when the easement was created in 1963, people commonly drove to the beach, and the easement is wide enough to accommodate vehicular traffic. Where nothing in the easement language or the objective circumstances supports an express limitation, the easement "may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant" (citation omitted). Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 795, 901 N.E.2d 1250 (2009). See Kubic v. Audette, 98 Mass. App. Ct. 289, 303, 156 N.E.3d 204 (2020), quoting Cannata, supra (within judge's authority to rule "that using motor vehicles to ferry people or goods to the water was ‘reasonably necessary to the full enjoyment’ of the access rights" provided by easement). Especially where the easement is 450 feet long, a distance that is difficult or impossible for some to walk, using ATVs to transport people and equipment to the beach is a reasonably necessary use.⁶ See Kubic, supra.

The trial judge did not err in concluding that the scope of the easement is not limited to pedestrian traffic.⁷

2. General Laws c. 90B, § 26 ( e ). We next address Mazzola's argument that G. L. c. 90B, § 26 (e ), prohibits the O'Briens from driving ATVs on the easement. Mazzola's complaint alleged that the O'Briens’ use of ATVs on the easement "is in violation of [S]tate and local laws and conservation principles," but made no mention of any specific statute or regulation. The judge's legal rulings refer to Mazzola's contentions that G. L. c. 90B, § 26 (e ), and 323 Code Mass. Regs. § 3.03(3) (2011) independently prohibit people from operating...