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COMMONWEALTH OF MASSACHUSETTS
G- 587A
ESSEX, ss. SUPERIOR COURT DE
CIVIL ACTION NO.: |
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST,
Plaintiff
Vv.
JOHN F. O’BRIEN, and
BONITA J. O’BRIEN,
Defendants
COMPLAINT.
Introduction and Parties
1 Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, is the
owner of, and resides at, the real property located at 17 Wingaersheek Road, Gloucester,
Massachusetts (the “Mazzola Property”), as more particularly shown as “Lot 10” on the
plan entitled “Plan of Land at Wingaersheek Beach, Gloucester, Mass.” dated July 19,
1960, recorded in the Essex (South) Registry of Deeds (the “Registry”) in Plan Book 95,
Plan 6 (the “Lot Plan”). The Lot Plan is attached hereto as Exhibit A and incorporated
herein by reference.
Defendants John F. O’Brien and Bonita J. O’Brien are the owners of the real property
located at 8 Sand Dollar Circle, Gloucester, Massachusetts (the “O’Brien Property”), as
more particularly shown as “Lot D” on the Lot Plan.
The Plaintiff brings this action for declaratory relief and money damages arising out of:
the Defendants’ misuse, abuse, or overburdening of, and interference with, a certain
common easement running the length of the Mazzola Property; the Defendants’ trespass
over and upon the Mazzola Property; and the Defendants’ willful and malicious
destruction of the Plaintiffs real and personal property.
Facts
The Mazzola Property and the O’Brien Property were once commonly owned by Bengt
Eriksson, as Trustee of the Ellis Farm Trust, as more particularly shown on the deed of
Elizabeth Abbott Smith to Bengt Eriksson, as Trustee u/d/t known as Ellis Farm Trust,
dated August 20, 1960, recorded in the Registry in Book 4704, Page 213. A true and
accurate copy of said deed is attached hereto as Exhibit B and incorporated herein by
teference.
Common grantor Eriksson, as Trustee of the Ellis Farm Trust, conveyed, in chronological
order, the Mazzola Property and then the O’Brien Property, as evidenced by the
following:
The Mazzola Property.
1 By deed dated June 5, 1963, Bengt Eriksson, as Trustee of the Ellis Farm
Trust, conveyed to Evelyn I. Hosmer title to the Mazzola Property, recorded
in the Registry in Book 5079, Page 514 (the “Hosmer Deed”). A true and
accurate copy of the Hosmer Deed is attached hereto as Exhibit C and
incorporated herein by reference.
a. The Hosmer Deed contains, in pertinent part, the following language:
“Said premises are conveyed subject to the restrictions that it... shall
be used for single family dwelling purposes only; and subject to a right
of way across the northwesterly side of said [Mazzola Property] herein
conveyed fifteen feet (15’) wide, adjacent to said land of KATZEFF
and leading from said Sagamore Road to Wingaersheek Beach,
approximately the distance of four hundred and fifty feet (450’) 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...” (the
“Easement”).
i. By deed dated December 20, 1994, Evelyn I. Hosmer conveyed to Philip
J. Mazzola and Roberta F. Mazzola, as tenants by the entirety, title to the
Mazzola Property, recorded in the Registry in Book 12868, Page 188. A
true and accurate copy of said deed is attached hereto as Exhibit D and
incorporated herein by reference. Said deed refers to the Easement in
substantially similar language as that of the Hosmer Deed.
By deed dated December 20, 2005, Philip J. Mazzola et ux. conveyed to
Roberta F. Mazzola title to the Mazzola Property, recorded in the Registry
in Book 25220, Page 472. A true and accurate copy of said deed is
attached hereto as Exhibit E and incorporated herein by reference.
Said deed refers to the Easement in substantially similar language as that
of the Hosmer Deed.
IV. By deed dated August 6, 2007, Roberta F. Mazzola conveyed to Philip J.
Mazzola, as Trustee of the Seventeen Wingaersheek Realty Trust, title to
the Mazzola Property, recorded in the Registry in Book 27122, Page 98.
A true and accurate copy of said deed is attached hereto as Exhibit F and
incorporated herein by reference. Said deed conveyed the Mazzola
Property “subject to easements... and reservations of record which are in
force [a]nd applicable.”
The O’Brien Property.
1, By deed dated September 17, 1964, common grantor Eriksson, as Trustee of
the Ellis Farm Trust, conveyed to Gustav Peterson and Bengt Eriksson, as
Trustees of the Nosskire Trust u/d/t dated October 8, 1963, title to a parcel of
land including the O’Brien Property, recorded in the Registry in Book 5208,
Page 95'. A true and accurate copy of said deed is attached hereto as
Exhibit G and incorporated herein by reference. Said deed contains no
teference to the Easement.
lh By deed dated June 15, 1965, Gustav V. Peterson and Bengt Eriksson,
Trustees of the Nosskire Trust, conveyed to Eugene N. Siskind, as Trustee of
the Samson Realty Trust u/d/t dated December 21, 1949, title to a parcel of
land including the O’Brien Property, recorded in the Registry in Book 5277,
Page 706. A true and accurate copy of said deed is attached hereto as
Exhibit I and incorporated herein by reference. Said deed refers to the
Easement in substantially similar language as that of the Hosmer Deed.
iii. By deed dated October 14, 1969, Eugene N. Siskind, as Trustee of the Samson
Realty Trust, and Seymour B. Levin conveyed to Charles T. Beaton and Joan
C, Beaton, as tenants by the entirety, title to the O’Brien Property, recorded in
' By confirmation deed dated April 27, 1965, Bengt Eriksson, as Trustee of the Ellis Farm Trust, conveyed to Gustav V. Peterson
and Bengt Eriksson, as Trustees of the Nosskire Trust, title to a parcel of land including the O’Brien Property, recorded in the
Registry in Book 5263, Page 99. A true and accurate copy of said confirmation deed is attached hereto as Exhibit H and
incorporated herein by reference. Said deed contains no reference to the Easement.
4
the Registry in Book 5649, Page 94. A true and accurate copy of said deed is
attached hereto as Exhibit J and incorporated herein by reference. Said deed
recites a grant to a right of way across the northwesterly side of the Mazzola
Property.
IV. By deed dated October 16, 1978, Charles T. Beaton et ux. conveyed to John
T. O’Brien and Benita J. O’Brien, as tenants by the entirety, title to the
O’Brien Property, recorded in the Registry in Book 6528, Page 293. A true
and accurate copy of said deed is attached hereto as Exhibit K and
incorporated herein by reference. Said deed recites a grant to a right of way
across the northwesterly side of the Mazzola Property.
By deed dated January 26, 1978, John F. O’Brien, a.k.a. John T. O’Brien, and
Bonita J. O’Brien, a.k.a. Benita J. O’Brien, conveyed to Kathryn M. Carpenter
title to the O’Brien Property, recorded in the Registry in Book 6561, Page
384. A true and accurate copy of said deed is attached hereto as Exhibit L and
incorporated herein by reference. Said deed recites a grant to a right of way
across the northwesterly side of the Mazzola Property.
VI By deed dated January 26, 1979, Kathryn M. Carpenter conveyed to John F.
O’Brien and Bonita J. O’Brien, as tenants by the entirety, title to the O’Brien
Property, recorded in the Registry in Book 6561, Page 386. A true and
accurate copy of said deed is attached hereto as Exhibit M and incorporated
herein by reference. Said deed recites a grant to a right of way across the
northwesterly side of the Mazzola Property.
The Mazzola Property is bounded, in pertinent part, by Wingaersheek Road to the
southwest and sand dunes, which lead to the private Coffins Beach, to the northeast.
Coffins Beach adjoins Wingaersheek Beach, a public beach that strictly prohibits vehicle
use, to the east.
The Easement is comprised of mostly gravel, dirt and sand and runs the entire length of
the Mazzola Property from Wingaersheek Road to Coffins Beach.
The Easement, although nominally fifteen feet (15’) in width, narrows substantially to
little more than four to five feet (4’-5’) for so much of the Easement as runs from the end
of the gravel portion on the Mazzola Property to Coffins Beach.
The Easement crosses coastal sand dunes, protected habitats, and other resource areas
leading to Coffins Beach. Portions of the Easement are located within the one hundred
foot (100”) wetlands buffer and coastal dune zones, as shown on the City of Gloucester Wetlands
Map.
10. The Easement is located twenty feet (20°) from the Plaintiffs dwelling on the Mazzola
Property.
Count One:
Misuse, Abuse, or Overburdening of Easement
ll The Plaintiff restates and incorporates by reference all foregoing paragraphs of this
Complaint as if specifically set forth herein.
12. The Defendants have used motor vehicles and all-terrain motor vehicles, at all hours of
the day and night, over and on the Easement to access Coffins Beach.
13. The Defendants’ use of said vehicles exceeds the scope of, and is inconsistent with, the
uses permitted by Easement.
14. The Defendants’ use of said vehicles has damaged the Easement, has damaged and
diminished the value of the Mazzola Property, has unreasonably disturbed the use of the
Mazzola Property by the Plaintiff, and is in violation of state and local laws and
conservation principles.
15 The Defendants have used said vehicles in an inherently dangerous manner given the
topography of the Easement as it leads to the Coffins Beach and the foot travel over the
Easement by other holders thereof.
16 Where there is no mention of use of the Easement by motor vehicles, and the right to use
the Easement is impressed with the limitation that it must be used with reasonable regard
to the comfort and enjoyment of the owner of the servient estate, and not in such manner
as to disturb his peace or the value of his property, the Defendants have misused, abused,
or overburdened the Easement.
17. As a direct and proximate result of the Defendants’ misuse, abuse, or overburdening of
the Easement, the Plaintiff has been caused to suffer damages.
Count Two:
Private Nuisance
18. The Plaintiff restates and incorporates by reference all foregoing paragraphs of this
Complaint as if specifically set forth herein.
19. The Defendants’ use of motor vehicles over and on the Easement, including, without
limitation, the excessive noise and emissions from such use, has substantially and
unreasonably disturbed the peace, comfort, or enjoyment of the Plaintiff occupying the
Mazzola Property or diminished the value of the Mazzola Property.
20. As a direct and proximate result of the Defendants’ nuisance, the Plaintiff has been
caused to suffer damages.
Count Three:
Trespas
21 The Plaintiff restates and incorporates by reference all foregoing paragraphs of this
Complaint as if specifically set forth herein.
22. The Defendants have impermissibly used portions of the Mazzola Property not subject to
the Easement as turnaround for their motor vehicles.
23 The Defendants have wrongfully removed certain concrete structures from the Mazzola
Property installed by the Plaintiff.
24 The Defendants wrongful entry has caused an actual and substantial interference with the
Plaintiff's right of exclusive possession of so much of the Mazzola Property as is not
subject to the Easement and has diminished the value of same.
25 As a direct and proximate cause of the Defendants’ trespass of the Mazzola Property, the
Plaintiff has been caused to suffer damages.
WHEREFORE, the Plaintiff prays and demands as follows:
1 That a declaration issue stating that the Easement is limited in use to non-motor
vehicle travel to and from Coffins Beach;
That judgment enter for the Plaintiff and against the Defendants on Count J-II in an
amount equal to the money damages sustained by the Plaintiff;
That judgment enter for the Plaintiff and against the Defendants on Count II ordering
the Defendants to abate the nuisance; and
For such other relief as the Court deems meet and just.
THE PLAINTIFF DEMANDS A TRIAL BY JURY.
Respectfully submitted,
j
Philip J. Mazzola, as Trustee of
Seventeen Wingaersheek Realty Trust,
By his attorngys,
|
WilliamHf Sheehan III, BBO #457060
Alex J. Hi ington, BBO #693512
MacLean Holloway Doherty & Sheehan, P.C.
8 Essex Center Drive
Peabody, MA 01960
(978) 774-7123
wsheehan@mhdpc.com
aharrington@mhdpe.com
Dated: October ‘4, 2016
Li sao atl
iad yadhS 436s
jynod 8 ola sua
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COMMONWEALTH OF MASSACHUSETTS G- 587A ESSEX, ss. SUPERIOR COURT DE CIVIL ACTION NO.: | PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST, Plaintiff Vv. JOHN F. O’BRIEN, and BONITA J. O’BRIEN, Defendants COMPLAINT. Introduction and Parties 1 Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust, is the owner of, and resides at, the real property located at 17 Wingaersheek Road, Gloucester, Massachusetts (the “Mazzola Property”), as more particularly shown as “Lot 10” on the plan entitled “Plan of Land at Wingaersheek Beach, Gloucester, Mass.” dated July 19, 1960, recorded in the Essex (South) Registry of Deeds (the “Registry”) in Plan Book 95, Plan 6 (the “Lot Plan”). The Lot Plan is attached hereto as Exhibit A and incorporated herein by reference. Defendants John F. O’Brien and Bonita J. O’Brien are the owners of the real property located at 8 Sand Dollar Circle, Gloucester, Massachusetts (the “O’Brien Property”), as more particularly shown as “Lot D” on the Lot Plan. The Plaintiff brings this action for declaratory relief and money damages arising out of: the Defendants’ misuse, abuse, or overburdening of, and interference with, a certain common easement running the length of the Mazzola Property; the Defendants’ trespass over and upon the Mazzola Property; and the Defendants’ willful and malicious destruction of the Plaintiffs real and personal property. Facts The Mazzola Property and the O’Brien Property were once commonly owned by Bengt Eriksson, as Trustee of the Ellis Farm Trust, as more particularly shown on the deed of Elizabeth Abbott Smith to Bengt Eriksson, as Trustee u/d/t known as Ellis Farm Trust, dated August 20, 1960, recorded in the Registry in Book 4704, Page 213. A true and accurate copy of said deed is attached hereto as Exhibit B and incorporated herein by teference. Common grantor Eriksson, as Trustee of the Ellis Farm Trust, conveyed, in chronological order, the Mazzola Property and then the O’Brien Property, as evidenced by the following: The Mazzola Property. 1 By deed dated June 5, 1963, Bengt Eriksson, as Trustee of the Ellis Farm Trust, conveyed to Evelyn I. Hosmer title to the Mazzola Property, recorded in the Registry in Book 5079, Page 514 (the “Hosmer Deed”). A true and accurate copy of the Hosmer Deed is attached hereto as Exhibit C and incorporated herein by reference. a. The Hosmer Deed contains, in pertinent part, the following language: “Said premises are conveyed subject to the restrictions that it... shall be used for single family dwelling purposes only; and subject to a right of way across the northwesterly side of said [Mazzola Property] herein conveyed fifteen feet (15’) wide, adjacent to said land of KATZEFF and leading from said Sagamore Road to Wingaersheek Beach, approximately the distance of four hundred and fifty feet (450’) 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...” (the “Easement”). i. By deed dated December 20, 1994, Evelyn I. Hosmer conveyed to Philip J. Mazzola and Roberta F. Mazzola, as tenants by the entirety, title to the Mazzola Property, recorded in the Registry in Book 12868, Page 188. A true and accurate copy of said deed is attached hereto as Exhibit D and incorporated herein by reference. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed. By deed dated December 20, 2005, Philip J. Mazzola et ux. conveyed to Roberta F. Mazzola title to the Mazzola Property, recorded in the Registry in Book 25220, Page 472. A true and accurate copy of said deed is attached hereto as Exhibit E and incorporated herein by reference. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed. IV. By deed dated August 6, 2007, Roberta F. Mazzola conveyed to Philip J. Mazzola, as Trustee of the Seventeen Wingaersheek Realty Trust, title to the Mazzola Property, recorded in the Registry in Book 27122, Page 98. A true and accurate copy of said deed is attached hereto as Exhibit F and incorporated herein by reference. Said deed conveyed the Mazzola Property “subject to easements... and reservations of record which are in force [a]nd applicable.” The O’Brien Property. 1, By deed dated September 17, 1964, common grantor Eriksson, as Trustee of the Ellis Farm Trust, conveyed to Gustav Peterson and Bengt Eriksson, as Trustees of the Nosskire Trust u/d/t dated October 8, 1963, title to a parcel of land including the O’Brien Property, recorded in the Registry in Book 5208, Page 95'. A true and accurate copy of said deed is attached hereto as Exhibit G and incorporated herein by reference. Said deed contains no teference to the Easement. lh By deed dated June 15, 1965, Gustav V. Peterson and Bengt Eriksson, Trustees of the Nosskire Trust, conveyed to Eugene N. Siskind, as Trustee of the Samson Realty Trust u/d/t dated December 21, 1949, title to a parcel of land including the O’Brien Property, recorded in the Registry in Book 5277, Page 706. A true and accurate copy of said deed is attached hereto as Exhibit I and incorporated herein by reference. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed. iii. By deed dated October 14, 1969, Eugene N. Siskind, as Trustee of the Samson Realty Trust, and Seymour B. Levin conveyed to Charles T. Beaton and Joan C, Beaton, as tenants by the entirety, title to the O’Brien Property, recorded in ' By confirmation deed dated April 27, 1965, Bengt Eriksson, as Trustee of the Ellis Farm Trust, conveyed to Gustav V. Peterson and Bengt Eriksson, as Trustees of the Nosskire Trust, title to a parcel of land including the O’Brien Property, recorded in the Registry in Book 5263, Page 99. A true and accurate copy of said confirmation deed is attached hereto as Exhibit H and incorporated herein by reference. Said deed contains no reference to the Easement. 4 the Registry in Book 5649, Page 94. A true and accurate copy of said deed is attached hereto as Exhibit J and incorporated herein by reference. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property. IV. By deed dated October 16, 1978, Charles T. Beaton et ux. conveyed to John T. O’Brien and Benita J. O’Brien, as tenants by the entirety, title to the O’Brien Property, recorded in the Registry in Book 6528, Page 293. A true and accurate copy of said deed is attached hereto as Exhibit K and incorporated herein by reference. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property. By deed dated January 26, 1978, John F. O’Brien, a.k.a. John T. O’Brien, and Bonita J. O’Brien, a.k.a. Benita J. O’Brien, conveyed to Kathryn M. Carpenter title to the O’Brien Property, recorded in the Registry in Book 6561, Page 384. A true and accurate copy of said deed is attached hereto as Exhibit L and incorporated herein by reference. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property. VI By deed dated January 26, 1979, Kathryn M. Carpenter conveyed to John F. O’Brien and Bonita J. O’Brien, as tenants by the entirety, title to the O’Brien Property, recorded in the Registry in Book 6561, Page 386. A true and accurate copy of said deed is attached hereto as Exhibit M and incorporated herein by reference. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property. The Mazzola Property is bounded, in pertinent part, by Wingaersheek Road to the southwest and sand dunes, which lead to the private Coffins Beach, to the northeast. Coffins Beach adjoins Wingaersheek Beach, a public beach that strictly prohibits vehicle use, to the east. The Easement is comprised of mostly gravel, dirt and sand and runs the entire length of the Mazzola Property from Wingaersheek Road to Coffins Beach. The Easement, although nominally fifteen feet (15’) in width, narrows substantially to little more than four to five feet (4’-5’) for so much of the Easement as runs from the end of the gravel portion on the Mazzola Property to Coffins Beach. The Easement crosses coastal sand dunes, protected habitats, and other resource areas leading to Coffins Beach. Portions of the Easement are located within the one hundred foot (100”) wetlands buffer and coastal dune zones, as shown on the City of Gloucester Wetlands Map. 10. The Easement is located twenty feet (20°) from the Plaintiffs dwelling on the Mazzola Property. Count One: Misuse, Abuse, or Overburdening of Easement ll The Plaintiff restates and incorporates by reference all foregoing paragraphs of this Complaint as if specifically set forth herein. 12. The Defendants have used motor vehicles and all-terrain motor vehicles, at all hours of the day and night, over and on the Easement to access Coffins Beach. 13. The Defendants’ use of said vehicles exceeds the scope of, and is inconsistent with, the uses permitted by Easement. 14. The Defendants’ use of said vehicles has damaged the Easement, has damaged and diminished the value of the Mazzola Property, has unreasonably disturbed the use of the Mazzola Property by the Plaintiff, and is in violation of state and local laws and conservation principles. 15 The Defendants have used said vehicles in an inherently dangerous manner given the topography of the Easement as it leads to the Coffins Beach and the foot travel over the Easement by other holders thereof. 16 Where there is no mention of use of the Easement by motor vehicles, and the right to use the Easement is impressed with the limitation that it must be used with reasonable regard to the comfort and enjoyment of the owner of the servient estate, and not in such manner as to disturb his peace or the value of his property, the Defendants have misused, abused, or overburdened the Easement. 17. As a direct and proximate result of the Defendants’ misuse, abuse, or overburdening of the Easement, the Plaintiff has been caused to suffer damages. Count Two: Private Nuisance 18. The Plaintiff restates and incorporates by reference all foregoing paragraphs of this Complaint as if specifically set forth herein. 19. The Defendants’ use of motor vehicles over and on the Easement, including, without limitation, the excessive noise and emissions from such use, has substantially and unreasonably disturbed the peace, comfort, or enjoyment of the Plaintiff occupying the Mazzola Property or diminished the value of the Mazzola Property. 20. As a direct and proximate result of the Defendants’ nuisance, the Plaintiff has been caused to suffer damages. Count Three: Trespas 21 The Plaintiff restates and incorporates by reference all foregoing paragraphs of this Complaint as if specifically set forth herein. 22. The Defendants have impermissibly used portions of the Mazzola Property not subject to the Easement as turnaround for their motor vehicles. 23 The Defendants have wrongfully removed certain concrete structures from the Mazzola Property installed by the Plaintiff. 24 The Defendants wrongful entry has caused an actual and substantial interference with the Plaintiff's right of exclusive possession of so much of the Mazzola Property as is not subject to the Easement and has diminished the value of same. 25 As a direct and proximate cause of the Defendants’ trespass of the Mazzola Property, the Plaintiff has been caused to suffer damages. WHEREFORE, the Plaintiff prays and demands as follows: 1 That a declaration issue stating that the Easement is limited in use to non-motor vehicle travel to and from Coffins Beach; That judgment enter for the Plaintiff and against the Defendants on Count J-II in an amount equal to the money damages sustained by the Plaintiff; That judgment enter for the Plaintiff and against the Defendants on Count II ordering the Defendants to abate the nuisance; and For such other relief as the Court deems meet and just. THE PLAINTIFF DEMANDS A TRIAL BY JURY. Respectfully submitted, j Philip J. Mazzola, as Trustee of Seventeen Wingaersheek Realty Trust, By his attorngys, | WilliamHf Sheehan III, BBO #457060 Alex J. Hi ington, BBO #693512 MacLean Holloway Doherty & Sheehan, P.C. 8 Essex Center Drive Peabody, MA 01960 (978) 774-7123 wsheehan@mhdpc.com aharrington@mhdpe.com Dated: October ‘4, 2016 Li sao atl iad yadhS 436s jynod 8 ola sua