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16-P-1309                                              Appeals Court

  SAMUEL D. PERRY & others,1 trustees,2 & another3      vs.     VIRGIL
                        AIELLO & others.4


                              No. 16-P-1309.

            Suffolk.       May 3, 2017. - September 19, 2017.

                Present:   Kinder, Henry, & Desmond, JJ.


Easement. Way, Private. Real Property, Easement, Restrictions.
     Adverse Possession and Prescription. Practice, Civil,
     Injunctive relief.



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

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



     1
         Eugene H. Clapp, III, and William W. Park.
     2
       Of the 63 Beacon Street and 64 Beacon Street, Boston,
Massachusetts, Trusts for the Benefit of King's Chapel.
     3
       66 Beacon Street, LLC. The plaintiffs shall be referred
to, collectively, as the "King's Chapel and LLC plaintiffs."
     4
       DeLuca's Market, Corp.; Robert Aiello; and James S. Hughes
and Stewart Grossman, as trustees of the Virgil J. Aiello 2011
Irrevocable Trust and as trustees of the Candace Jans Aiello
2011 QTIP Trust. The defendants shall be referred to,
collectively, as the "DeLuca defendants."
                                                                    2


    Diane C. Tillotson for the plaintiffs.
    W. Paul Needham for the defendants.


    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
                                                                      3


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


     5
       The DeLuca defendants allege that the 1947 agreement,
entered into just before the property was conveyed to their
                                                                   4


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


predecessors in interest, and limiting their use of the
passageway, was the result of a collusive transaction among the
owners of the subject properties, all of which were then owned
by various members of one family either individually or as
trustees. The DeLuca defendants further assert that the
agreement was designed to "severely limit what the Italian
grocer buyers . . . would be able to do in the [p]assageway."
We express no opinion on this factual point.
     6
       Since at least 2000, the DeLuca defendants have at times
parked one or more cars in the passageway, and their service
workers have parked in the passageway several times per year.
Since 2013, their employee or agent has regularly backed a truck
into the passageway and loaded trash for transport to another
location.
                                                                    5


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.
                                                                      6


    Discussion.   1.   1947 agreement.   With regard to the 1947

agreement, the issue before us is whether the provisions of the

agreement constitute "restrictions" as that term is used in

G. L. c. 184, §§ 23, 26-30, or easements.     The difference is not

always readily apparent, and the distinction is outcome

determinative here, as, unlike restrictions, easements do not

become unenforceable with the passage of time.     See Labounty v.

Vickers, 352 Mass. 337, 347-348 (1967).     See also Patterson v.

Paul, 448 Mass. 658, 663 (2007) ("An affirmative easement is not

considered to be a 'restriction' affecting the use of real

property such that it is subject to the statutory time

limitation imposed by G. L. c. 184, § 23").

    In 1947, before the agreement was executed, the parties

owned to the center of the passageway abutting their respective

properties, and enjoyed a right of passage, in common with

others, over the rest of the passageway.    See Tehan v. Security

Natl. Bank of Springfield, 340 Mass. 176, 181-182 (1959); Murphy

v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965).

The effect of the 1947 agreement, therefore, was to restrict the

DeLuca defendants' predecessors' existing rights over the entire

passageway.

    Restrictions on uses of land generally are disfavored.      See

Patterson, 448 Mass. at 662, citing Stop & Shop Supermkt. Co. v.

Urstadt Biddle Properties, Inc., 433 Mass. 285, 290 (2001).
                                                                    7


"The Legislature has maintained this policy by limiting the

duration of restrictions that are unlimited as to time . . . ,

and by establishing a procedure through G. L. c. 184, §§ 26-

30,[7] by which a landowner may 'remove or prevent the

enforcement of obsolete, uncertain or unenforceable

restrictions.'"    Stop & Shop Supermkt. Co., supra, quoting from

Labounty, 352 Mass. at 348.

     We agree with the judge's conclusion that pursuant to

c. 184, § 28, the restriction on the portion of the passageway

owned by the DeLuca defendants terminated after fifty years, in

September, 1997, there having been no extension filed.   The


     7
         As relevant here, § 26 provides that

     "[a]ll restrictions on the use of land or construction
     thereon which run with the land subject thereto and are
     imposed by covenant, agreement, or otherwise, whether or
     not stated in the form of a condition, in any deed, will or
     other instrument executed by or on behalf of the owner of
     the land or in any order of taking shall be subject to
     . . . [G. L. c. 184, §§ 27-30]."

G. L. c. 184, § 26, as appearing in St. 1990, c. 520, § 2.

     Section 28 provides, in pertinent part:

          "No restriction imposed before January first, nineteen
     hundred and sixty-two shall be enforceable after the
     expiration of fifty years from its imposition unless a
     notice of restriction is recorded before the expiration of
     such fifty years . . . and in case of such recording,
     twenty years have not expired after the recording of any
     notice of restriction without the recording of a further
     notice of restriction."

G. L. c. 184, § 28, inserted by St. 1961, c. 448, § 1.
                                                                   8


judge treated separately, however, the portion of the passageway

owned by the King's Chapel and LLC plaintiffs and over which the

DeLuca defendants had a right of passage, and concluded that the

DeLuca defendants' rights over that portion of the passageway

were easements unaffected by § 28.   In imposing restrictions,

however, the 1947 agreement itself did not expressly distinguish

between the portion of the fee owned by the DeLuca defendants'

predecessors and the portion those predecessors had a legal

right to use derived from their ownership of a portion of the

passageway.   Contrary to the trial judge's conclusion, nothing

in paragraphs 2 and 7 of the agreement suggests that one

paragraph restricts the portion of the passageway owned by

DeLuca's predecessors and the other paragraph grants easements

over the portions owned by the King's Chapel and LLC plaintiffs'

predecessors.

    While paragraph 2's "appurtenant to" language, in part,

apparently caused the judge to conclude that paragraph 2 of the

1947 agreement contained a "restated easement," we disagree.

The agreement gave the DeLuca defendants' predecessors nothing

that they did not already have.   To the contrary, it restricted

the predecessors' rights.   The DeLuca defendants' predecessors

enjoyed an unrestricted right over the passageway, in common

with others, and the agreement served to restrict those rights.

Pursuant to c. 184, § 26, the statute extends to "[a]ll
                                                                   9


restrictions on the use of land" and pays no attention to

labels.   See Myers v. Salin, 13 Mass. App. Ct. 127, 136 (1982)

(§§ 23 & 26-30 reflect a legislative intent that

"'restrictions,' with certain carefully specified exceptions

[not at issue here], be regulated in various ways, without

apparent differentiation among the types of interest thereby

produced, the names given to them, or the methods used in their

creation").   We have scoured the language of the statute and

cannot say that its reach does not extend to restrictions of

easement rights, particularly where those easement rights derive

from an ownership interest in a portion of a way and a

corresponding right of passage over the rest of the way.    At

least when it comes to a passageway or a street, it is illogical

to apply the statute to only the portion of the passageway the

abutter owns when rights over that section are largely useless

without the corresponding passage rights over the rest of the

way.

       It is true that the Supreme Judicial Court has said that

"[a] 'restriction on the use of land' is a right to compel the

person entitled to possession of the land not to use it in

specified ways."    Labounty, 352 Mass. at 347.   And, furthermore,

an easement, on the other hand, "creates a nonpossessory right

to enter and use land in the possession of another and obligates

the possessor not to interfere with the uses authorized by the
                                                                  10


easement."    Martin v. Simmons Properties, LLC, 467 Mass. 1, 8-9

(2014), quoting from Patterson, 448 Mass. at 663.     Here,

however, where the 1947 agreement does not grant anything that

the DeLuca defendants' predecessors did not already have, but

rather restricted their common-law rights, we think the term

"restriction" as used in the relevant provisions of c. 184 is

broad enough to encompass the limitation of the DeLuca

defendants' rights over the entire passageway.   If the King's

Chapel and LLC plaintiffs wanted to continue to restrict the

DeLuca defendants' use of the passageway, they were required to

file a notice of extension of the restriction.   We conclude that

the restrictions on the DeLuca defendants' right to use the

portion of the passageway they own and the portion owned by the

plaintiffs have expired and are unenforceable pursuant to G. L.

c. 184, § 28.

    We comment briefly on the scope of the DeLuca defendants'

easement rights.   The judge found that it is not possible to

park in the passageway without interfering with others' right to

pass.   Thus, we agree that no party has the right to park in the

passageway.   The judge also concluded that a temporary stop of a

vehicle in the passageway once per day to load trash for

transport to another location does not unreasonably impair the

King's Chapel and LLC plaintiffs' right of passage.    On the

record presented, we cannot say the judge's conclusion was
                                                                    11


clearly erroneous.    So long as continued temporary stopping once

per day does not unreasonably impede the King's Chapel and LLC

plaintiffs' easement rights, this use may continue.8

     2.   Prescriptive easement.   The DeLuca defendants contend

they have acquired an easement by prescription to park in the

passageway.   The evidence on this issue was conflicting and the

judge's conclusion was based in part on his credibility

assessment of witnesses.    The judge's conclusion that the DeLuca

defendants had not met their burden is not clearly erroneous or

based upon an incorrect legal standard.     See Brown v. Sneider, 9

Mass. App. Ct. 329, 331 (1980); Shapiro v. Burton, 23 Mass. App.

Ct. 327, 330 (1987).

     Conclusion.     So much of the judgment as declares that the

DeLuca defendants' rights in the passageway are limited by the

restrictions contained in paragraph 2 of the 1947 agreement is

reversed, and the judgment shall be modified consistent with


     8
       On February 11, 2013, the DeLuca defendants entered into
an agreement known as the "Good Neighbor Agreement" with the
Beacon Hill Civic Association, Inc., which is not a party in
this action. In that agreement, the DeLuca defendants agreed
that "[a]ll trash will be stored inside the market and will be
picked up inside the market in the morning no earlier than 7:00
A.M."; all delivery trucks "will park on Charles Street only
(and not on Branch Street)"; and the DeLuca defendants will
comply "with all legally binding requirements of the recorded"
1947 agreement. We do not pass on the question whether the Good
Neighbor Agreement allows trucks to pick up trash from the
passageway; none of the King's Chapel and LLC plaintiffs is a
signatory to the Good Neighbor Agreement, and so far as the
record reveals, they have no right to enforce it.
                                                                12


this opinion.   In all other respects, the judgment is affirmed.

In addition, the order denying the King's Chapel and LLC

plaintiffs' motion to amend the judgment is affirmed.

                                   So ordered.
