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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 1677CV1587A
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST
Plaintiff,
v,
JOHN F. O’BRIEN and
BONITA J. O’BRIEN
Defendants.
DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
NOW COME the Defendants, John F. O’Brien and Bonita.J. O’Brien, by and through their
counsel, and oppose the Plaintiff's Motion for a Preliminary Injunction. As grounds for their
Opposition, the O’Briens state as follows:
I Standard of Review
In order to prevail on a request for a preliminary injunction, the Plaintiff has the burden of
proving that he is likely to win the underlying case; that irreparable harm will occur if the
injunction is not issued; and that the risk of irreparable harm to the movant outweighs the
potential harm to the non-movant. Boston Police Patrolmen’s Ass’n Inc. v. Police Dept. of
Page 1 of8
a ‘
Boston, 446 Mass. 46, 49 (2006). The movant must offer sufficient evidence of his underlying
case to show that he is likely to prevail. “By definition, a preliminary injunction must be granted
or denied after an abbreviated presentation of the facts and the law.” Packaging Industries
Group, Inc. y, Cheney, 405 N.E.2d 106, 111 (Mass. 1980). Thus, the Plaintiff must show more
evidence of his case than would be required under a motion to dismiss.
IL The Plaintiff has no chance of succeeding on the merits of his case because he
has offered no evidence of his allegations and the easement language clearly
favors the Defendants.
a. The Defendants do not own an all-terrain vehicle and have not used an all-terrain
vehicle over the easement.
The Plaintiff accuses Mr. and Mrs. O’Brien of “rampant,” “continuous” and excessive use of
the easement with all-terrain vehicles “at all hours of the day and night.” He offers as evidence
video footage from security cameras on his property.
Mr. and Mrs. O’Brien do not own an all-terrain vehicle. Exhibit A: John O’Brien affidavit.
The O’Briens did not use the easement for at least four years. Jd. However, at least three other
neighbors with rights to the easement own all-terrain vehicles. Jd.
The video footage is not authenticated, clearly has been edited, and shows some of the same
incidents from different angles. Most important, the license plate on the pickup truck is not
visible and the occupants of the all-terrain vehicle are clearly not Mr. and Mrs. O’Brien, who are
older persons. This footage would not be admissible in court and should be given no weight here.
The Plaintiff admits that the videos were taken in July and August of this year. Even if the
videos showed the O’Briens, which they do not, the videos do not show the “increased use”
alleged. The Plaintiff offers no evidence at all that the O’Briens used the easement prior to the
filing of his complaint.
Page 2 of8
*
b. The easement language gives the O’Briens broad, general rights to use the
easement,
The deed into the O’Briens, dated January 26, 1979, contains the following language:
[T]he right for the grantee, his heirs, assigns and his guests to use the
area between the mean high water mark and the “bank” as shown on plan
recorded with the Essex South Deeds Plans Book 106, Plan 22, and set
forth in deed from the Ellis Farm Trust to Hosmer, Book 4712, Page 92,
as shown on said plan, for bathing, beaching and mooring of boats and
for all other purposes for which a beach is used with the right to use with
others legally entitled thereof, a right away across the northwesterly side
of Lot No. 10 on the plan above mentioned and/or in Plan Book 95, Plan
6, 15 fee wide adjacent to land now or formerly of Katzeff and leading
from Sagamore Road to Wingaersheek Beach, approximately the
distance of 450 feet.
Exhibit B: Deed and plans as referenced.
Lot No. 10 is now the Plaintiff's property. The purpose of this easement is clearly to give the
O’Briens, their family, their guests, and their neighbors full and unfettered access to the beach.
The easement language in the Plaintiff's deed is even broader:
Said premises are conveyed subject to reservation to the Ellis Farm Trust
and its assigns, and to their heirs, executors, administrators and assigns,
and for the benefit of the remaining land of Ellis Farm Trust at
Wingearsheek Beach, and all persons at any time owning or leasing any
part of said land, the right to use the area between mean high water mark
and the ‘bank’ as shown on said plan for bathing, beaching and mooring
of boats and for all other purposes for which a beach is used ... and
subject to a right of way across the northwesterly side of said Lot 10,
fifteen (15) feet wide, adjacent to said land of Katzeff and leading from
said Sagamore Road to Wingaersheek Beach, approximately the distance
of four hundred and fifty (450) feet for the benefit of all persons at any
time Owning (sic) or leasing any part of the remaining land of Ellis Farm
Trust, or being lawfully invited to any part of said land to pass and
repass to and from the beach area, and for all purposes for which right
of ways (sic) are customarily used as now in force and applicable.
Exhibit B: Deed. Emphasis added.
Page
3 of 8
The language in the Plaintiff's deed gives the O’Briens the right to use the easement not just
to get to and from the beach but as any other right of way could be used. When the language of
the two deeds is read together, it is clear that the O’Briens, their family and guests have all rights
possible to use the easement.
Broadly speaking, easements are elastic enough to adapt to changing circumstances. If the
language of an easement is general, the easement may be used “for such purposes as are
reasonably necessary to the full enjoyment of the premises to which the right of way is
appurtenant.” Teehan v. Security Nat. Bank of Springfield, 340 Mass. 176, 182 (1959); Hewitt v.
Perry, 309 Mass. 100, 105 (1941). Related uses can be inferred. For example, because the
easement holder is invited to moor his boat at the beach, it is a reasonable inference that the
easement holder should have the ability to transport a boat to the beach. Also by way of
inference, if the easement is 450 fect long — a football field and a half — it is a reasonable
inference that some easement holders might be disabled and require transportation to the beach.
“The progression from horse or ox teams to tractors and trucks is a normal development of the
sort which, in the language of the Restatement of Property s 479, comment b (1944), ‘accords
with common experience.’ See Swensen v. Marino, 306 Mass. 582, 587, 29 N.E.2d 15 (1940), in
which the court said, ‘We should be very slow to hold that even ancient rights of way, not
expressly restricted as to the type of vehicle ... could not be employed at all for the means of
transportation in common use by a succeeding generation.”” Glenn v. Poole, 12 Mass.App.Ct.
292, 295 (1981).
The Swensen case cited by Judge Kass above also illustrates a related point. All nuisances are
not created equal. The Plaintiff claims that the O’Briens are causing excessive noise but, even if
that were true, the alternative is not silence. The original easement in Swensen was a mere cow
Page
4 of 8
. ’ ’
path that, over time, was increasingly used for trucks hauling sand and gravel. The Court had
little sympathy for the Swensen’s complaint about noise and dust. “We do not think it means that
every trifling disturbance of the plaintiff or the least possible detriment to his property is
prohibited.” Swensen at 584. The Court ruled that such disturbances had to be substantial or must
“unreasonably” diminish the Plaintiff’s property value. Swensen at 587. Here, the Plaintiff has
not offered any evidence that the noise is a substantial disturbance or that his property values
have been unreasonably diminished.
The Plaintiff relies on two related cases, Rigo v. Israel, 2014 WL 49552364, and Rigg v.
A reidin, 88 Mass.App.Ct. 1119 (2016) (Unpublished). His reliance is misplaced. First, the
Appeals Case is unpublished and should not be cited at all, and the Land Court case has not been
cited elsewhere. Second, the easement language in Rigg is much more specific than the language
here. Third, the main issue in Rigo was whether there was sufficient parking for the all-terrain
vehicles, which is not an issue here. Last, the Conservation Commission played an active role in
the Rigo case; here, the Plaintiff has not sought the assistance of the Gloucester Conservation
Commission.
In sum, the Plaintiff is unlikely to succeed in arguing that the language of the easement
favors his position. The language and the intent of this easement are clear: The O’Briens shall
have unfettered access to the beach and there is no restriction on their mode of transportation.
c. The statute of limitations has expired on the Plaintiff's claim:
Even assuming that the O’Briens ever used an all-terrain vehicle on the easement, which they
deny, it was at least four years between the time they last used the easement and the filing of the
complaint. The deadline for bringing a tort claim has expired. Perhaps the so-called security
footage is an attempt by the Plaintiff to restart the statute but if so, the Court should not accept it.
Page 5 of8
>
The footage was admittedly taken after the complaint was filed and should not be permitted to
bolster a flawed claim.
For all these reason, the Plaintiff is unlikely to prevail on the merits of his case.
TI. Generalized and unsubstantiated allegations of irreparable harm are insufficient
to support a preliminary injunction.
The Plaintiff claims that the O’Briens have damaged the beach dunes, are causing excessive
noise and discomfort, and have trespassed. He offers no evidence of these claims. Furthermore, if
the O’Briens really were causing irreparable harm, why would the Plaintiff wait nearly a year
after filing his claim to bring this motion?
In his affidavit, the Plaintiff does not claim specialized knowledge of environmental science.
Expert testimony is required on whether the dunes have been irreparably damaged by the alleged
use of all-terrain vehicles. One should not necessarily assume that all use of off-road vehicles on
a beach is damaging. Conservation Law Foundation of New England, Inc. v. Secretary of the
Int erior et al, 864 F.2d 954 (1" Circ. 1989) (where the Court rebuffed an effort to ban off-road
vehicles from the Cape Cod National Seashore, instead finding that a federal plan for off-road
vehicle use of the beach was reasonable and rational). Expert testimony should also be required
on the alleged damage to the Plaintiffs property value.
It is worth noting that when the Plaintiff purchased his property, the residential structure was
a small cottage. Exhibit C: Photograph from city file. He chose to build a much larger house that
is closer to the easement and now complains about the proximity of the casement.
The Plaintiff's hand-to-heart claim to be fighting for the other easement holders is also not
supported by facts. At least three other easement holders own all-terrain vehicles and at least one
neighbor is willing to testify on behalf of the O’Briens.
Page
6 of 8
The Plaintiff discusses at length the regulations enforced by the Conservation Commission
and the rules promulgated by the local beach association. He even acknowledges that he is a
member of the association. He seems to be arguing that the Commission and the association
would take a dim view ofthe O’Briens’ alleged use of the easement yet he has apparently done
nothing to bring this matter to their attention. One can reasonably infer that the beach association
certainly knows of use of the beach by all-terrain vehicles and the Conservation Commission
may know of such use, and yet neither has taken any action against the O’Briens', No claim of
irreparable harm should prevail if neither the Conservation Commission nor the beach
association has weighed in.
The Plaintiff attempts to paint the easement as a meandering country path. In fact, the
easement is wider than other nearby paths; has been used by many people for many years; and its
use is not causing obvious damage to the nearby dunes. Exhibit D: Aerial photograph.
The Plaintiff has not made any credible showing of irreparable harm.
Iv. The Defendants would suffer far more harm from a preliminary injunction than
the Plaintiff.
Mrs. O’Brien is legally blind. Exhibit E:Identification card from the Massachusetts
Commission for the Blind. The only way for her to exercise her rights under the easement is to be
transported to the beach by a vehicle. It would be manifestly unjust to give the Plaintiff's alleged
inconvenience more weight than Mrs. O’Brien’s ability to visit the beach at all. Furthermore, it is
unclear how an injunction against the O’Briens would affect the other neighbors who have
easements rights and actually own all-terrain vehicles. Although the O’Briens do not own an all-
1 It is not clear how much actual authority the Wingaersheek Improvement
Association has to govern the use of the beach.
Page
7 of 8
terrain vehicle, they strongly object to this attempt to curtail their right to go to the beach by
whatever means is available to all the other easement holders.
For all these reasons, the Defendants ask this Honorable Court to deny the Plaintiff's request
for a Preliminary Injunction.
Respectfully submitted,
THE DEFENDANTS
John F. O’Brien and
ea
Bonita J. O’Brien
Meredith Fine, Esq.
BBO No. 669248
46 Middle Street Suite 2
Gloucester, MA 01930
978-515-7224
meredith@attorneymeredithfinc.com
Dated: September 18, 2017
Page 8 of 8
ESSEX SUERIOR COURT
AVI SEP 28 Ale 39
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ae @ [3.5 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 1677CV1587A PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST Plaintiff, v, JOHN F. O’BRIEN and BONITA J. O’BRIEN Defendants. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION NOW COME the Defendants, John F. O’Brien and Bonita.J. O’Brien, by and through their counsel, and oppose the Plaintiff's Motion for a Preliminary Injunction. As grounds for their Opposition, the O’Briens state as follows: I Standard of Review In order to prevail on a request for a preliminary injunction, the Plaintiff has the burden of proving that he is likely to win the underlying case; that irreparable harm will occur if the injunction is not issued; and that the risk of irreparable harm to the movant outweighs the potential harm to the non-movant. Boston Police Patrolmen’s Ass’n Inc. v. Police Dept. of Page 1 of8 a ‘ Boston, 446 Mass. 46, 49 (2006). The movant must offer sufficient evidence of his underlying case to show that he is likely to prevail. “By definition, a preliminary injunction must be granted or denied after an abbreviated presentation of the facts and the law.” Packaging Industries Group, Inc. y, Cheney, 405 N.E.2d 106, 111 (Mass. 1980). Thus, the Plaintiff must show more evidence of his case than would be required under a motion to dismiss. IL The Plaintiff has no chance of succeeding on the merits of his case because he has offered no evidence of his allegations and the easement language clearly favors the Defendants. a. The Defendants do not own an all-terrain vehicle and have not used an all-terrain vehicle over the easement. The Plaintiff accuses Mr. and Mrs. O’Brien of “rampant,” “continuous” and excessive use of the easement with all-terrain vehicles “at all hours of the day and night.” He offers as evidence video footage from security cameras on his property. Mr. and Mrs. O’Brien do not own an all-terrain vehicle. Exhibit A: John O’Brien affidavit. The O’Briens did not use the easement for at least four years. Jd. However, at least three other neighbors with rights to the easement own all-terrain vehicles. Jd. The video footage is not authenticated, clearly has been edited, and shows some of the same incidents from different angles. Most important, the license plate on the pickup truck is not visible and the occupants of the all-terrain vehicle are clearly not Mr. and Mrs. O’Brien, who are older persons. This footage would not be admissible in court and should be given no weight here. The Plaintiff admits that the videos were taken in July and August of this year. Even if the videos showed the O’Briens, which they do not, the videos do not show the “increased use” alleged. The Plaintiff offers no evidence at all that the O’Briens used the easement prior to the filing of his complaint. Page 2 of8 * b. The easement language gives the O’Briens broad, general rights to use the easement, The deed into the O’Briens, dated January 26, 1979, contains the following language: [T]he right for the grantee, his heirs, assigns and his guests to use the area between the mean high water mark and the “bank” as shown on plan recorded with the Essex South Deeds Plans Book 106, Plan 22, and set forth in deed from the Ellis Farm Trust to Hosmer, Book 4712, Page 92, as shown on said plan, for bathing, beaching and mooring of boats and for all other purposes for which a beach is used with the right to use with others legally entitled thereof, a right away across the northwesterly side of Lot No. 10 on the plan above mentioned and/or in Plan Book 95, Plan 6, 15 fee wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road to Wingaersheek Beach, approximately the distance of 450 feet. Exhibit B: Deed and plans as referenced. Lot No. 10 is now the Plaintiff's property. The purpose of this easement is clearly to give the O’Briens, their family, their guests, and their neighbors full and unfettered access to the beach. The easement language in the Plaintiff's deed is even broader: Said premises are conveyed subject to reservation to the Ellis Farm Trust and its assigns, and to their heirs, executors, administrators and assigns, and for the benefit of the remaining land of Ellis Farm Trust at Wingearsheek Beach, and all persons at any time owning or leasing any part of said land, the right to use the area between mean high water mark and the ‘bank’ as shown on said plan for bathing, beaching and mooring of boats and for all other purposes for which a beach is used ... and subject to a right of way across the northwesterly side of said Lot 10, fifteen (15) feet wide, adjacent to said land of Katzeff and leading from said Sagamore Road to Wingaersheek Beach, approximately the distance of four hundred and fifty (450) feet for the benefit of all persons at any time Owning (sic) or leasing any part of the remaining land of Ellis Farm Trust, or being lawfully invited to any part of said land to pass and repass to and from the beach area, and for all purposes for which right of ways (sic) are customarily used as now in force and applicable. Exhibit B: Deed. Emphasis added. Page 3 of 8 The language in the Plaintiff's deed gives the O’Briens the right to use the easement not just to get to and from the beach but as any other right of way could be used. When the language of the two deeds is read together, it is clear that the O’Briens, their family and guests have all rights possible to use the easement. Broadly speaking, easements are elastic enough to adapt to changing circumstances. If the language of an easement is general, the easement may be used “for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.” Teehan v. Security Nat. Bank of Springfield, 340 Mass. 176, 182 (1959); Hewitt v. Perry, 309 Mass. 100, 105 (1941). Related uses can be inferred. For example, because the easement holder is invited to moor his boat at the beach, it is a reasonable inference that the easement holder should have the ability to transport a boat to the beach. Also by way of inference, if the easement is 450 fect long — a football field and a half — it is a reasonable inference that some easement holders might be disabled and require transportation to the beach. “The progression from horse or ox teams to tractors and trucks is a normal development of the sort which, in the language of the Restatement of Property s 479, comment b (1944), ‘accords with common experience.’ See Swensen v. Marino, 306 Mass. 582, 587, 29 N.E.2d 15 (1940), in which the court said, ‘We should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle ... could not be employed at all for the means of transportation in common use by a succeeding generation.”” Glenn v. Poole, 12 Mass.App.Ct. 292, 295 (1981). The Swensen case cited by Judge Kass above also illustrates a related point. All nuisances are not created equal. The Plaintiff claims that the O’Briens are causing excessive noise but, even if that were true, the alternative is not silence. The original easement in Swensen was a mere cow Page 4 of 8 . ’ ’ path that, over time, was increasingly used for trucks hauling sand and gravel. The Court had little sympathy for the Swensen’s complaint about noise and dust. “We do not think it means that every trifling disturbance of the plaintiff or the least possible detriment to his property is prohibited.” Swensen at 584. The Court ruled that such disturbances had to be substantial or must “unreasonably” diminish the Plaintiff’s property value. Swensen at 587. Here, the Plaintiff has not offered any evidence that the noise is a substantial disturbance or that his property values have been unreasonably diminished. The Plaintiff relies on two related cases, Rigo v. Israel, 2014 WL 49552364, and Rigg v. A reidin, 88 Mass.App.Ct. 1119 (2016) (Unpublished). His reliance is misplaced. First, the Appeals Case is unpublished and should not be cited at all, and the Land Court case has not been cited elsewhere. Second, the easement language in Rigg is much more specific than the language here. Third, the main issue in Rigo was whether there was sufficient parking for the all-terrain vehicles, which is not an issue here. Last, the Conservation Commission played an active role in the Rigo case; here, the Plaintiff has not sought the assistance of the Gloucester Conservation Commission. In sum, the Plaintiff is unlikely to succeed in arguing that the language of the easement favors his position. The language and the intent of this easement are clear: The O’Briens shall have unfettered access to the beach and there is no restriction on their mode of transportation. c. The statute of limitations has expired on the Plaintiff's claim: Even assuming that the O’Briens ever used an all-terrain vehicle on the easement, which they deny, it was at least four years between the time they last used the easement and the filing of the complaint. The deadline for bringing a tort claim has expired. Perhaps the so-called security footage is an attempt by the Plaintiff to restart the statute but if so, the Court should not accept it. Page 5 of8 > The footage was admittedly taken after the complaint was filed and should not be permitted to bolster a flawed claim. For all these reason, the Plaintiff is unlikely to prevail on the merits of his case. TI. Generalized and unsubstantiated allegations of irreparable harm are insufficient to support a preliminary injunction. The Plaintiff claims that the O’Briens have damaged the beach dunes, are causing excessive noise and discomfort, and have trespassed. He offers no evidence of these claims. Furthermore, if the O’Briens really were causing irreparable harm, why would the Plaintiff wait nearly a year after filing his claim to bring this motion? In his affidavit, the Plaintiff does not claim specialized knowledge of environmental science. Expert testimony is required on whether the dunes have been irreparably damaged by the alleged use of all-terrain vehicles. One should not necessarily assume that all use of off-road vehicles on a beach is damaging. Conservation Law Foundation of New England, Inc. v. Secretary of the Int erior et al, 864 F.2d 954 (1" Circ. 1989) (where the Court rebuffed an effort to ban off-road vehicles from the Cape Cod National Seashore, instead finding that a federal plan for off-road vehicle use of the beach was reasonable and rational). Expert testimony should also be required on the alleged damage to the Plaintiffs property value. It is worth noting that when the Plaintiff purchased his property, the residential structure was a small cottage. Exhibit C: Photograph from city file. He chose to build a much larger house that is closer to the easement and now complains about the proximity of the casement. The Plaintiff's hand-to-heart claim to be fighting for the other easement holders is also not supported by facts. At least three other easement holders own all-terrain vehicles and at least one neighbor is willing to testify on behalf of the O’Briens. Page 6 of 8 The Plaintiff discusses at length the regulations enforced by the Conservation Commission and the rules promulgated by the local beach association. He even acknowledges that he is a member of the association. He seems to be arguing that the Commission and the association would take a dim view ofthe O’Briens’ alleged use of the easement yet he has apparently done nothing to bring this matter to their attention. One can reasonably infer that the beach association certainly knows of use of the beach by all-terrain vehicles and the Conservation Commission may know of such use, and yet neither has taken any action against the O’Briens', No claim of irreparable harm should prevail if neither the Conservation Commission nor the beach association has weighed in. The Plaintiff attempts to paint the easement as a meandering country path. In fact, the easement is wider than other nearby paths; has been used by many people for many years; and its use is not causing obvious damage to the nearby dunes. Exhibit D: Aerial photograph. The Plaintiff has not made any credible showing of irreparable harm. Iv. The Defendants would suffer far more harm from a preliminary injunction than the Plaintiff. Mrs. O’Brien is legally blind. Exhibit E:Identification card from the Massachusetts Commission for the Blind. The only way for her to exercise her rights under the easement is to be transported to the beach by a vehicle. It would be manifestly unjust to give the Plaintiff's alleged inconvenience more weight than Mrs. O’Brien’s ability to visit the beach at all. Furthermore, it is unclear how an injunction against the O’Briens would affect the other neighbors who have easements rights and actually own all-terrain vehicles. Although the O’Briens do not own an all- 1 It is not clear how much actual authority the Wingaersheek Improvement Association has to govern the use of the beach. Page 7 of 8 terrain vehicle, they strongly object to this attempt to curtail their right to go to the beach by whatever means is available to all the other easement holders. For all these reasons, the Defendants ask this Honorable Court to deny the Plaintiff's request for a Preliminary Injunction. Respectfully submitted, THE DEFENDANTS John F. O’Brien and ea Bonita J. O’Brien Meredith Fine, Esq. BBO No. 669248 46 Middle Street Suite 2 Gloucester, MA 01930 978-515-7224 meredith@attorneymeredithfinc.com Dated: September 18, 2017 Page 8 of 8 ESSEX SUERIOR COURT AVI SEP 28 Ale 39