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Perry v. Aiello

Appeals Court of Massachusetts, Suffolk

September 19, 2017

SAMUEL D. PERRY & others, [1]trustees, [2]& another [3]
v.
VIRGIL AIELLO & others.[4]

          Heard: May 3, 2017.

         Civil action commenced in the Land Court Department on June 11, 2013.

         The case was heard by Robert B. Foster, J.

          Diane C. Tillotson for the plaintiffs.

          W. Paul Needham for the defendants.

          Present: Kinder, Henry, & Desmond, JJ.

          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 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 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 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.

         Discussion.

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