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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2016-01587-A
PHILIP J. MAZZOLA, As Trustee
of the Seventeen Wingaersheek Realty Trust,
Plaintiff
vs.
JOHN F, O’BRIEN and
BONITA J. O’BRIEN,
Defendants
MEMORANDUM AND ORDER ON PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Philip J. Mazzola, as trustee (“Mazzola”), is the owner of a parcel of
property in Gloucester that has frontage on the Atlantic Ocean and Coffins Beach
(the “Mazzola property”). His residence is situated on the parcel. The parcel was
originally part of a solely owned large parcel of property that was subdivided in the
1960's. Part of the larger parcel included seven buildable lots without frontage on
Coffins Beach. John F. O’Brien and his wife, Bonita J. O’Brien (the “O’Briens”)
own one of the landlocked parcels that was originally part of the larger subdivision
{the “O’Brien property”). Since the time of the subdivision and original sale of the
Mazzola property, it has been encumbered by an easement “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”). The easement runs fifteen feet in width, along the Mazzola’s
northwest boundary line, from the street bordering the front of the property, through
a sand dune area, and onto Coffins Beach. Before reaching the dune area, the
easement is part of a gravel driveway used by the Mazzola property. The Mazzola
family has owned the Mazzola property since 1994. The O’Briens have owned one
of the landlocked parcels since 1978. As far as this court knows, no issues about use
of the easement by the owners or invitees of the landlocked parcels have ever resulted
in litigation prior to the commencement of this action.
In this case, Mazzola brings claims against the O’Briens alleging: (1) misuse,
abuse, or overburdening of easement; (2) private nuisance; and (3) trespass. The
primary claim is abuse of the easement bases on use of motor vehicles and all-terrain
vehicles (“ATV’s”) at all hours of the day and night, over and on the easement
accessing Coffins Beach. As affidavits filed with the court establish, it is not actually
the named defendants that are alleged to have used ATV’s on the easement, it is their
invitees, most specifically their son John, and perhaps their daughter Wendy. As an
initial matter, the court finds that the O’Briens are the proper parties, as it is they who
have deeded use of the easement as owners of one of the landlocked parcels, and their
son John lawfully uses the easement only a lawful invitee of the O’Briens. If abuse
of the easement is established, it is the O’Briens who will be lawfully responsible for
the actions of their invitees. That is not to say that son John could not have been
included in this action, but he is not a necessary party, and his absence as a party does
not preclude the claims against the O’Briens.
Now before the court is the motion of Mazzola for a preliminary injunction [D.
13] as follows: the O’Briens and their guests, licencees, and invitees, and all person
in active participation with them who receive actual notice of this Preliminary
Injunction, are hereby prohibited and enjoined from using, idling, and parking
ATV’s, and any other motor vehicles, at, across, on, and over any portion of the
Plaintiff's property at 17 Wingaersheek Road, Gloucester, Massachusetts (the
(Property”), including by not limited to, that portion of the Property burdened by a
nominal fifteen (15') foot easement leading from Wingaersheek Road to Coffins
Beach. In support of the motion, the court has a DVD showing ATV use of the
easement, two affidavits from Mazzola, an affidavit from the adjacent owner
alongside the easement, and numerous photographs. The affidavit of defendant John
O’Brien, a copy of their deed, two photographs, and an identification document for
defendant Bonita O’Brien from the Commission for the Blind, are also part of the
record. Both sides submitted written memoranda.
Anon-evidentiary hearing was held on October 16, 2017, at the conclusion of
which the court took the motion under advisement. For reasons discussed below,
preliminary injunction will issue.
DISCUSSION
In John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 130-131
(1991) (quoting Commonwealth v. Mass. CRINC, 392 Mass. 79, 87-88 (1984)), the
Supreme Judicial Court articulated the well-established standard for issuance of
injunctive relief as follows:
[T]o issue injunctive relief correctly, a judge initially must consider
whether the plaintiff has demonstrated that without the relief he would
suffer irreparable harm, not capable of remediation by a final judgment
in law or equity. Packaging Indus. Group, Inc. v. Cheney, 380 Mass.
609, 617 (1980). The plaintiff also must show that there is a likelihood
that he would prevail on the merits of the case at trial. The judge then
must balance these two factors against the showing of irreparable harm
which would ensue from the issuance, or the denial, of an injunction and
the 'chance of success on the merits’ presented by the defendant. Jd. at
617. An injunction may issue properly only if the judge concludes that
the risk of irreparable harm to a plaintiff, in light of his chances of
success on his claim, outweigh[s] the defendant's probable harm and
likelihood of prevailing on the merits of the case.
Under the above standard, the court must first consider the likelihood that
Robbins will prevail on one or more of her claims at trial. her adverse possession
claim at trial. “The sine qua non of this [PI] inquiry is likelihood of success on the
merits: if the moving party cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle curiosity.” New Comm Wireless
Servs., Inc. v. SprintCom Inc., 287 F.3d 1, 9 (1* Cir. 2002). For purposes of this
motion, the court will focus upon Mazzola’s abuse of easement claim.
As an initial matter, and rejecting the O’Briens’ argument, the record does
provide sufficient evidence that their guests and invitees, specifically their son John,
have used an ATV on the easement, including the sand dune portion of the easement,
numerous times this past summer, and as recently as Labor Day. As son John is not
claimed to be an owner of a property benefitting from the easement, his use of the
easement is found by the court to be as an invitee of the O’Briens. Since this action
was commenced in the fall of 2016, and refusing to ignore common sense and reality,
the court finds that son John’s use of the easement, including use of ATV’s is upon
the invitation of the O’Briens, knowing that son John’s use of the easement included
the use of an ATV.
The court finds that Mazzola is likely to succeed on the merits of its abuse of
easement claim, as well as its trespass claim to the extend that the O’Briens or their
invitees use a portion of Mazzola’s gravel driveway outside the easement for
purposes of turning motorized vehicles around. The O’Briens also concede that
parking of vehicles is not permitted by the terms of the easement, that permit users
“to pass and repass to and from the beach area.” The court is persuaded by the
arguments contained in Mazzola’s supporting memorandum. The easement was
created in or before 1963. As far as this court knows, and it has not been told
otherwise by the O’Briens, ATV’s did not exist at that time, and if they did, there is
no evidence before the court that they were contemplated or envisioned by the creator
of the easement, or that the creator envisioned anything other than pedestrians to pass
and repass to and from the beach area. This court finds that Mazzola is likely to
prevail at trial to show that the easement was intended upon its creation to permit
pedestrian only access to the beach by the owners/invitees of the landlocked parcels,
which were also granted an easement to use the beach fronting the three subdivided
parcel with direct access to the beach.
Contrary to the O’Briens’ argument, at this stage of the case, Mazzola does not
need an expert to demonstrate an adverse impact on the sand dune area of the
easement. In fact, ifuse of ATV’s is beyond the scope of the easement, Mazzola will
not need to show harm to the sand dunes in order to prevail on the abuse of easement
claim. But the court finds that Mazzola has also shown a likelihood that he will
succeed at trial that ATV’s, even if not beyond the scope of permitted use of the
easement, abuse and overburden the sand dune portion of the easement. ATV’s are
regulated vehicles, see Chapter 90B, sand dunes and beaches are fragile habitats, and
restrictions on use of ATV’s are common, such as adopted by the Wingaersheek
Improvement Association with respect to Coffins Beach and other nearby private
beaches.
The court has also considered the issue of the respective harms claimed by both
sides, and finds that the risk of irreparable harm to Mazzola, in light of his chances
of success on his claim, outweigh[s] the O’Briens’ probable harm and likelihood of
prevailing on the merits of the case. According to Mazzola, there are other nearby
public access points to the beach area that could reasonably be used by the O’Briens
and their invitees. The issued injunction will not unduly restrict, if it restricts at all,
the O’Briens’ deeded right to use the private beach fronting the three original
subdivided lots with beach frontage.
ORDER FOR PRELIMINARY INJUNCTION
Upon payment of the appropriate fee, defendants John F. O’Brien and Bonita
J. O’Brien, their tenants, lessees, lawful invitees, and guests, including but not limited
to son John O’Brien and daughter Wendy O’Brien, and all person in active
participation with them who receive actual notice of this Preliminary Injunction, are
hereby prohibited and enjoined from using, idling, and parking ATV’s, and any other
motor vehicles, at, across, on, and over any portion of the Mazzola property at 17
Wingaersheek Road, Gloucester, Massachusetts, including by not limited to, that
portion of the property burdened by a nominal fifteen (15") foot easement along the
northwest boundary of the property from Wingaersheek Road to Coffins Beach.
ae
42
Timothy Q. Feeley
Associate Justice of the Superior Court
October 17, 2017
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\lo COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. 2016-01587-A PHILIP J. MAZZOLA, As Trustee of the Seventeen Wingaersheek Realty Trust, Plaintiff vs. JOHN F, O’BRIEN and BONITA J. O’BRIEN, Defendants MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Plaintiff Philip J. Mazzola, as trustee (“Mazzola”), is the owner of a parcel of property in Gloucester that has frontage on the Atlantic Ocean and Coffins Beach (the “Mazzola property”). His residence is situated on the parcel. The parcel was originally part of a solely owned large parcel of property that was subdivided in the 1960's. Part of the larger parcel included seven buildable lots without frontage on Coffins Beach. John F. O’Brien and his wife, Bonita J. O’Brien (the “O’Briens”) own one of the landlocked parcels that was originally part of the larger subdivision {the “O’Brien property”). Since the time of the subdivision and original sale of the Mazzola property, it has been encumbered by an easement “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”). The easement runs fifteen feet in width, along the Mazzola’s northwest boundary line, from the street bordering the front of the property, through a sand dune area, and onto Coffins Beach. Before reaching the dune area, the easement is part of a gravel driveway used by the Mazzola property. The Mazzola family has owned the Mazzola property since 1994. The O’Briens have owned one of the landlocked parcels since 1978. As far as this court knows, no issues about use of the easement by the owners or invitees of the landlocked parcels have ever resulted in litigation prior to the commencement of this action. In this case, Mazzola brings claims against the O’Briens alleging: (1) misuse, abuse, or overburdening of easement; (2) private nuisance; and (3) trespass. The primary claim is abuse of the easement bases on use of motor vehicles and all-terrain vehicles (“ATV’s”) at all hours of the day and night, over and on the easement accessing Coffins Beach. As affidavits filed with the court establish, it is not actually the named defendants that are alleged to have used ATV’s on the easement, it is their invitees, most specifically their son John, and perhaps their daughter Wendy. As an initial matter, the court finds that the O’Briens are the proper parties, as it is they who have deeded use of the easement as owners of one of the landlocked parcels, and their son John lawfully uses the easement only a lawful invitee of the O’Briens. If abuse of the easement is established, it is the O’Briens who will be lawfully responsible for the actions of their invitees. That is not to say that son John could not have been included in this action, but he is not a necessary party, and his absence as a party does not preclude the claims against the O’Briens. Now before the court is the motion of Mazzola for a preliminary injunction [D. 13] as follows: the O’Briens and their guests, licencees, and invitees, and all person in active participation with them who receive actual notice of this Preliminary Injunction, are hereby prohibited and enjoined from using, idling, and parking ATV’s, and any other motor vehicles, at, across, on, and over any portion of the Plaintiff's property at 17 Wingaersheek Road, Gloucester, Massachusetts (the (Property”), including by not limited to, that portion of the Property burdened by a nominal fifteen (15') foot easement leading from Wingaersheek Road to Coffins Beach. In support of the motion, the court has a DVD showing ATV use of the easement, two affidavits from Mazzola, an affidavit from the adjacent owner alongside the easement, and numerous photographs. The affidavit of defendant John O’Brien, a copy of their deed, two photographs, and an identification document for defendant Bonita O’Brien from the Commission for the Blind, are also part of the record. Both sides submitted written memoranda. Anon-evidentiary hearing was held on October 16, 2017, at the conclusion of which the court took the motion under advisement. For reasons discussed below, preliminary injunction will issue. DISCUSSION In John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 130-131 (1991) (quoting Commonwealth v. Mass. CRINC, 392 Mass. 79, 87-88 (1984)), the Supreme Judicial Court articulated the well-established standard for issuance of injunctive relief as follows: [T]o issue injunctive relief correctly, a judge initially must consider whether the plaintiff has demonstrated that without the relief he would suffer irreparable harm, not capable of remediation by a final judgment in law or equity. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). The plaintiff also must show that there is a likelihood that he would prevail on the merits of the case at trial. The judge then must balance these two factors against the showing of irreparable harm which would ensue from the issuance, or the denial, of an injunction and the 'chance of success on the merits’ presented by the defendant. Jd. at 617. An injunction may issue properly only if the judge concludes that the risk of irreparable harm to a plaintiff, in light of his chances of success on his claim, outweigh[s] the defendant's probable harm and likelihood of prevailing on the merits of the case. Under the above standard, the court must first consider the likelihood that Robbins will prevail on one or more of her claims at trial. her adverse possession claim at trial. “The sine qua non of this [PI] inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom Inc., 287 F.3d 1, 9 (1* Cir. 2002). For purposes of this motion, the court will focus upon Mazzola’s abuse of easement claim. As an initial matter, and rejecting the O’Briens’ argument, the record does provide sufficient evidence that their guests and invitees, specifically their son John, have used an ATV on the easement, including the sand dune portion of the easement, numerous times this past summer, and as recently as Labor Day. As son John is not claimed to be an owner of a property benefitting from the easement, his use of the easement is found by the court to be as an invitee of the O’Briens. Since this action was commenced in the fall of 2016, and refusing to ignore common sense and reality, the court finds that son John’s use of the easement, including use of ATV’s is upon the invitation of the O’Briens, knowing that son John’s use of the easement included the use of an ATV. The court finds that Mazzola is likely to succeed on the merits of its abuse of easement claim, as well as its trespass claim to the extend that the O’Briens or their invitees use a portion of Mazzola’s gravel driveway outside the easement for purposes of turning motorized vehicles around. The O’Briens also concede that parking of vehicles is not permitted by the terms of the easement, that permit users “to pass and repass to and from the beach area.” The court is persuaded by the arguments contained in Mazzola’s supporting memorandum. The easement was created in or before 1963. As far as this court knows, and it has not been told otherwise by the O’Briens, ATV’s did not exist at that time, and if they did, there is no evidence before the court that they were contemplated or envisioned by the creator of the easement, or that the creator envisioned anything other than pedestrians to pass and repass to and from the beach area. This court finds that Mazzola is likely to prevail at trial to show that the easement was intended upon its creation to permit pedestrian only access to the beach by the owners/invitees of the landlocked parcels, which were also granted an easement to use the beach fronting the three subdivided parcel with direct access to the beach. Contrary to the O’Briens’ argument, at this stage of the case, Mazzola does not need an expert to demonstrate an adverse impact on the sand dune area of the easement. In fact, ifuse of ATV’s is beyond the scope of the easement, Mazzola will not need to show harm to the sand dunes in order to prevail on the abuse of easement claim. But the court finds that Mazzola has also shown a likelihood that he will succeed at trial that ATV’s, even if not beyond the scope of permitted use of the easement, abuse and overburden the sand dune portion of the easement. ATV’s are regulated vehicles, see Chapter 90B, sand dunes and beaches are fragile habitats, and restrictions on use of ATV’s are common, such as adopted by the Wingaersheek Improvement Association with respect to Coffins Beach and other nearby private beaches. The court has also considered the issue of the respective harms claimed by both sides, and finds that the risk of irreparable harm to Mazzola, in light of his chances of success on his claim, outweigh[s] the O’Briens’ probable harm and likelihood of prevailing on the merits of the case. According to Mazzola, there are other nearby public access points to the beach area that could reasonably be used by the O’Briens and their invitees. The issued injunction will not unduly restrict, if it restricts at all, the O’Briens’ deeded right to use the private beach fronting the three original subdivided lots with beach frontage. ORDER FOR PRELIMINARY INJUNCTION Upon payment of the appropriate fee, defendants John F. O’Brien and Bonita J. O’Brien, their tenants, lessees, lawful invitees, and guests, including but not limited to son John O’Brien and daughter Wendy O’Brien, and all person in active participation with them who receive actual notice of this Preliminary Injunction, are hereby prohibited and enjoined from using, idling, and parking ATV’s, and any other motor vehicles, at, across, on, and over any portion of the Mazzola property at 17 Wingaersheek Road, Gloucester, Massachusetts, including by not limited to, that portion of the property burdened by a nominal fifteen (15") foot easement along the northwest boundary of the property from Wingaersheek Road to Coffins Beach. ae 42 Timothy Q. Feeley Associate Justice of the Superior Court October 17, 2017