SAMUEL D. PERRY & others, trustees, & another 
VIRGIL AIELLO & others.
Heard: May 3, 2017.
action commenced in the Land Court Department on June 11,
case was heard by Robert B. Foster, J.
C. Tillotson for the plaintiffs.
Paul Needham for the defendants.
Present: Kinder, Henry, & Desmond, JJ.
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.
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
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]." 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.
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. 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.