# EDWARD J. MORIARTY & Another v. EDMOND L. RESOR, Trustee, & Others.

> Massachusetts Appeals Court · August 28, 2023

URL: https://www.frixlaw.com/law-library/cases/9749939

## Case

- **Court:** Massachusetts Appeals Court
- **Decided:** August 28, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

7
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749939. Public record. Not legal advice.