Preview
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: -1677-CV-01 5 87
Lo
PHILIP J. MAZZOLA, as TRUSTEE OF THE on
ea
SEVENTEEN WINGAERSHEEK REALTY TRUST,
Plaintiff
Vv. 3
JOHN F. O’BRIEN, et al., 2
Defendants a
PARTIES’ CONCILIATION MEMORANDUM
I Plaintiff's Statement
As set forth in the original deed, the easement at issue in this Action states the following:
“Said premises are conveyed subject to . . . a right of way across the northwesterly side of [the
Plaintiffs lot] herein conveyed fifteen feet (15°) wide, adjacent to said land of Katzeff and
leading from Sagamore Road [now Wingaersheek Road] to Wingaersheek Beach [now Coffin’s
Beach], approximately the distance of four hundred and fifty feet (450°) for the benefit of all
persons at any time owning or leasing a 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
other purposes for which right of ways are customarily used, insofar as now in force and
applicable.” (emphasis added). 1?
1 In the Defendants’ deed, the easement is described as follows: “Together with . . . a right of
way across the northwesterly side of [the Plaintiff's lot] .. . 15 feet wide adjacent to land now or
formerly of Katzeff and leading from Sagamore Road [now Wingaersheek Road] to
Wingaersheek Beach [now Coffin’s Beach], approximately the distance of 450 feet.” (emphasis
added)
2 The Plaintiff's lot is shown as “Lot 10” on the attached Plan (Essex South District Registry of
Deeds, Plan Book 95, Plan 6). The Katzeff lot referenced in the easement language is shown as
“Lot 12 Lot 11” on said Plan. The Defendants’ lot is shown as “Lot D” on said plan. (See
Exhibit A — Plan)
The extent of the subject easement must be “ascertained from the relevant instruments
and the objective circumstances to which they refer.” See Cannata v. Berkshire Nat. Res.
Co uncil, Inc., 73 Mass.App.Ct. 789, 795-96 (2009). The intention of the grantor of the easement
is to be gathered from “the physical condition of the premises.” See Boudreau v. Coleman, 29
Mass.App.Ct. 621, 629 (1990). The extent of the subject easement “depends on the
circumstances of its creation ... When created by conveyance, the grant or reservation must be
construed with reference to all its terms and the then existing conditions so far as they are
illuminating.” Cannata, supra, 73 Mass.App.Ct. at 795-796.
The language of the easement. and the physical conditions on the ground prove that the
easement was intended solely for foot traffic. The easement is 15 feet wide, but 10 to 11 feet of
that width, along the common boundary between the Plaintiff's property (Lot 10 on Exhibit A)
and the property formerly owned by Katzeff (Lot 12 Lot 11 on Exhibit A), is comprised of
coastal sand dunes and tall beach grass. Accordingly, travel by motorized vehicle is not possible
along the easement without trespassing upon the Plaintiff’s land that is not part of the easement.
By using such vehicles — a truck, a car, and all-terrain vehicles - the Defendants have trespassed
on the Plaintiffs land and overburdened the easement each time they have traveled along it by
vehicle.
Because the Defendants say they may use motorized vehicles along the easement, “the
burden rests on [them] to show that [their] right is extensive enough to authorize the amount and
character of the use which [they have] made of the way.” See Swenson v. Marino, 306 Mass.
582, 583 (1940). The physical condition of the land comprising the easement, as stated above,
belies the Defendants’ claim of right to use motorized vehicles.
Moreover, a statute, state regulations, local regulations, and rules of the private
association of owners make it obvious that the use engaged in and claimed by the Defendants is
simply not legally possible. Section 26(e) of Chapter 90B of the Massachusetts General Laws
prohibits the operation of recreation vehicles, as defined, on privately-owned property unless: (i)
the operator is the owner or lessee or an immediate family member of the owner or lessee of the
subject property; (fi) the operator has in his possession “a document, signed by the owner or
lessee of such property or his agent, authorizing the operation of such vehicle on the property by
the operator”; or (iii) the owner or lessee of the property has designated the area for use by such
vehicles > Mass.Gen.Laws c. 90B, §26(e). The Defendants do not, and cannot, satisfy any of
these requirements. They do not own the property on which the casement exists. They have no
written authorization from the Plaintiff to operate on the Plaintiff's land. And the Plaintiff has
not designated the easement for use by such vehicles. Section 26(f) of Chapter 90B prohibits
operation of such vehicles “in a manner that causes damage to public or private property
Here, the Defendants’ use of vehicles has damaged the coastal dunes that protect the Plaintiff's
property, and all other property at Wingaersheck, from the ravages of the Atlantic Ocean.
The regulations promulgated by the Environmental Police — Division of Law
Enforcement relating to the use of recreation vehicles, as defined, have the same prohibitions as
Chapter 9B, §§ 26(e) and 26(f). See 323 CMR Sections 3.03(2) and (7). Additionally, 323
CMR Section 3.03(3) prohibits. the operation of recreational vehicles “within 150 feet of an
occupied residence without the permission of the owner.” Here, the easement is well within this
150 foot zone and the Plaintiff has not given permission to the Defendants to operate recreational
vehicles within that zone.
The City of Gloucester’s conservation regulations promulgated in furtherance of the
Wetlands Protection Act prohibit the alteration of protected wetland zones, buffer zones, and
coastal dune zones. The Defendants’ use of recreational vehicles over the dunes has altered and
will alter those dunes which are within the Conservation Commission’s jurisdiction. Neither the
Defendants nor the Plaintiff have obtained permission to alter the dunes. The alteration has not
been authorized by the Plaintiff, and it subjects the Plaintiff to possible significant fines from the
City.
The rules of the Wingaersheek Improvement Association prohibit the use of vehicles on
the beach and dunes.
Tn summary, the subject easement was and is intended for foot travel only to and from the
beach. Vehicles are not permitted along the easement. The Defendants’ use of vehicles on the
easement has overburdened it and damaged the fragile dunes. Said use also constitutes a
nuisance and trespass on the Plaintiff’s land by the Defendants and their guests. Defendant John
O’Brien also trespassed on the Plaintiff's land when he removed cement bollards which from the
area where the Plaintiff's driveway meets the sand dune portion of the easement.
Il. Defendants’ Statement
John and Bonita O’Brien live in a section of Gloucester called Wingaersheek. They have
deeded rights to use an easement over the Mazzola property for access toa private beach. About
a dozen properties in the neighborhood have the same rights.
The Plaintiff filed his complaint on October 17, 2016, asserting three claims against Mr. and
Mrs. O’Brien:
1. That the Defendants were abusing the casement by using all-terrain vehicles;
2. That the Defendants’ use of all-terrain vehicles was causing’a private nuisance; and
3. That the Defendants trespassed on the Mazzola property and wrongfully removed two
concrete bollards installed by the Plaintiff.
In their defense, Mr. and Mrs. O’Brien argue that they, their children, and their neighbors
have used motorized vehicles over the easement for many decades without incident, that their
use of motorized vehicles is not loud or intrusive, and there is no expert evidence that the use has
damaged the environment. Mr. O’Brien admits removing the bollards. Three neighbors have
testified that residents of the area continue to use motorized vehicles over the easement to
transport beach chairs and other accessories.
On or about October 17, 2017, the Superior Court enjoined the Defendants from driving over
the easement, a significant hardship for Mrs. O’Brien, who is blind. Subsequently, discovery was
slowed because of Mr. O’Brien’s health problems but at this point, most of the discovery has
been completed.
The Plaintiff has failed to show that the O’Briens’ use of the easement exceeded the purpose for
which it was created or that the use was overly frequent or intensive. The Plaintiff has failed to
show that the O’Briens have caused a substantial, unreasonable, and intentional interference with
the Mazzolas’ use of their property. And, finally, there is no evidence that Mr. O’Brien
intentionally trespassed on the Mazzola property.
Plaintiff Philip J. Mazzola,
Trustee o! thy, eventeen Wingaersheek Realty Trust, Defendants John F. O’Brien
By . meys, and Bonita J. O’Brien,
By their attorney,
.
VV re wihwlhahy
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J,fFlannagan, BBO #564328 Meredith Fine, BBO #669248
olloway Doherty & Sheehan, P.C. Law Office of Meredith A. Fine
enter Drive 46 Middle Street, Suite 2
Peabody, MA 01960 Gloucester, MA 01930
(978) 774-7123 (978) 515-7224
wsheehan@mbhdpc.com meredith@attorneymeredithfine.com
tflannagan@mhdpe.com
Dated: June 06 2019
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CERTIFICATE OF SERVICE
I, Thomas J. Flannagan, attormey for the Plaintiff, hereby certify that I have served a copy of the above
document upon the following attorney by mailing the same, first class mail, postage prepaid?
Meredith A. Fine, Esq.
Law Office of Meredith A. Fine
46 Middle Street, Suite 2
Gloucester, MA 01930
J, Flannagan
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Preview
COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: -1677-CV-01 5 87 Lo PHILIP J. MAZZOLA, as TRUSTEE OF THE on ea SEVENTEEN WINGAERSHEEK REALTY TRUST, Plaintiff Vv. 3 JOHN F. O’BRIEN, et al., 2 Defendants a PARTIES’ CONCILIATION MEMORANDUM I Plaintiff's Statement As set forth in the original deed, the easement at issue in this Action states the following: “Said premises are conveyed subject to . . . a right of way across the northwesterly side of [the Plaintiffs lot] herein conveyed fifteen feet (15°) wide, adjacent to said land of Katzeff and leading from Sagamore Road [now Wingaersheek Road] to Wingaersheek Beach [now Coffin’s Beach], approximately the distance of four hundred and fifty feet (450°) for the benefit of all persons at any time owning or leasing a 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 other purposes for which right of ways are customarily used, insofar as now in force and applicable.” (emphasis added). 1? 1 In the Defendants’ deed, the easement is described as follows: “Together with . . . a right of way across the northwesterly side of [the Plaintiff's lot] .. . 15 feet wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road [now Wingaersheek Road] to Wingaersheek Beach [now Coffin’s Beach], approximately the distance of 450 feet.” (emphasis added) 2 The Plaintiff's lot is shown as “Lot 10” on the attached Plan (Essex South District Registry of Deeds, Plan Book 95, Plan 6). The Katzeff lot referenced in the easement language is shown as “Lot 12 Lot 11” on said Plan. The Defendants’ lot is shown as “Lot D” on said plan. (See Exhibit A — Plan) The extent of the subject easement must be “ascertained from the relevant instruments and the objective circumstances to which they refer.” See Cannata v. Berkshire Nat. Res. Co uncil, Inc., 73 Mass.App.Ct. 789, 795-96 (2009). The intention of the grantor of the easement is to be gathered from “the physical condition of the premises.” See Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). The extent of the subject easement “depends on the circumstances of its creation ... When created by conveyance, the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.” Cannata, supra, 73 Mass.App.Ct. at 795-796. The language of the easement. and the physical conditions on the ground prove that the easement was intended solely for foot traffic. The easement is 15 feet wide, but 10 to 11 feet of that width, along the common boundary between the Plaintiff's property (Lot 10 on Exhibit A) and the property formerly owned by Katzeff (Lot 12 Lot 11 on Exhibit A), is comprised of coastal sand dunes and tall beach grass. Accordingly, travel by motorized vehicle is not possible along the easement without trespassing upon the Plaintiff’s land that is not part of the easement. By using such vehicles — a truck, a car, and all-terrain vehicles - the Defendants have trespassed on the Plaintiffs land and overburdened the easement each time they have traveled along it by vehicle. Because the Defendants say they may use motorized vehicles along the easement, “the burden rests on [them] to show that [their] right is extensive enough to authorize the amount and character of the use which [they have] made of the way.” See Swenson v. Marino, 306 Mass. 582, 583 (1940). The physical condition of the land comprising the easement, as stated above, belies the Defendants’ claim of right to use motorized vehicles. Moreover, a statute, state regulations, local regulations, and rules of the private association of owners make it obvious that the use engaged in and claimed by the Defendants is simply not legally possible. Section 26(e) of Chapter 90B of the Massachusetts General Laws prohibits the operation of recreation vehicles, as defined, on privately-owned property unless: (i) the operator is the owner or lessee or an immediate family member of the owner or lessee of the subject property; (fi) the operator has in his possession “a document, signed by the owner or lessee of such property or his agent, authorizing the operation of such vehicle on the property by the operator”; or (iii) the owner or lessee of the property has designated the area for use by such vehicles > Mass.Gen.Laws c. 90B, §26(e). The Defendants do not, and cannot, satisfy any of these requirements. They do not own the property on which the casement exists. They have no written authorization from the Plaintiff to operate on the Plaintiff's land. And the Plaintiff has not designated the easement for use by such vehicles. Section 26(f) of Chapter 90B prohibits operation of such vehicles “in a manner that causes damage to public or private property Here, the Defendants’ use of vehicles has damaged the coastal dunes that protect the Plaintiff's property, and all other property at Wingaersheck, from the ravages of the Atlantic Ocean. The regulations promulgated by the Environmental Police — Division of Law Enforcement relating to the use of recreation vehicles, as defined, have the same prohibitions as Chapter 9B, §§ 26(e) and 26(f). See 323 CMR Sections 3.03(2) and (7). Additionally, 323 CMR Section 3.03(3) prohibits. the operation of recreational vehicles “within 150 feet of an occupied residence without the permission of the owner.” Here, the easement is well within this 150 foot zone and the Plaintiff has not given permission to the Defendants to operate recreational vehicles within that zone. The City of Gloucester’s conservation regulations promulgated in furtherance of the Wetlands Protection Act prohibit the alteration of protected wetland zones, buffer zones, and coastal dune zones. The Defendants’ use of recreational vehicles over the dunes has altered and will alter those dunes which are within the Conservation Commission’s jurisdiction. Neither the Defendants nor the Plaintiff have obtained permission to alter the dunes. The alteration has not been authorized by the Plaintiff, and it subjects the Plaintiff to possible significant fines from the City. The rules of the Wingaersheek Improvement Association prohibit the use of vehicles on the beach and dunes. Tn summary, the subject easement was and is intended for foot travel only to and from the beach. Vehicles are not permitted along the easement. The Defendants’ use of vehicles on the easement has overburdened it and damaged the fragile dunes. Said use also constitutes a nuisance and trespass on the Plaintiff’s land by the Defendants and their guests. Defendant John O’Brien also trespassed on the Plaintiff's land when he removed cement bollards which from the area where the Plaintiff's driveway meets the sand dune portion of the easement. Il. Defendants’ Statement John and Bonita O’Brien live in a section of Gloucester called Wingaersheek. They have deeded rights to use an easement over the Mazzola property for access toa private beach. About a dozen properties in the neighborhood have the same rights. The Plaintiff filed his complaint on October 17, 2016, asserting three claims against Mr. and Mrs. O’Brien: 1. That the Defendants were abusing the casement by using all-terrain vehicles; 2. That the Defendants’ use of all-terrain vehicles was causing’a private nuisance; and 3. That the Defendants trespassed on the Mazzola property and wrongfully removed two concrete bollards installed by the Plaintiff. In their defense, Mr. and Mrs. O’Brien argue that they, their children, and their neighbors have used motorized vehicles over the easement for many decades without incident, that their use of motorized vehicles is not loud or intrusive, and there is no expert evidence that the use has damaged the environment. Mr. O’Brien admits removing the bollards. Three neighbors have testified that residents of the area continue to use motorized vehicles over the easement to transport beach chairs and other accessories. On or about October 17, 2017, the Superior Court enjoined the Defendants from driving over the easement, a significant hardship for Mrs. O’Brien, who is blind. Subsequently, discovery was slowed because of Mr. O’Brien’s health problems but at this point, most of the discovery has been completed. The Plaintiff has failed to show that the O’Briens’ use of the easement exceeded the purpose for which it was created or that the use was overly frequent or intensive. The Plaintiff has failed to show that the O’Briens have caused a substantial, unreasonable, and intentional interference with the Mazzolas’ use of their property. And, finally, there is no evidence that Mr. O’Brien intentionally trespassed on the Mazzola property. Plaintiff Philip J. Mazzola, Trustee o! thy, eventeen Wingaersheek Realty Trust, Defendants John F. O’Brien By . meys, and Bonita J. O’Brien, By their attorney, . VV re wihwlhahy dl J,fFlannagan, BBO #564328 Meredith Fine, BBO #669248 olloway Doherty & Sheehan, P.C. Law Office of Meredith A. Fine enter Drive 46 Middle Street, Suite 2 Peabody, MA 01960 Gloucester, MA 01930 (978) 774-7123 (978) 515-7224 wsheehan@mbhdpc.com meredith@attorneymeredithfine.com tflannagan@mhdpe.com Dated: June 06 2019 yw th om 7 oy = 29 33 a CERTIFICATE OF SERVICE I, Thomas J. Flannagan, attormey for the Plaintiff, hereby certify that I have served a copy of the above document upon the following attorney by mailing the same, first class mail, postage prepaid? Meredith A. Fine, Esq. Law Office of Meredith A. Fine 46 Middle Street, Suite 2 Gloucester, MA 01930 J, Flannagan ‘Dated: sunedO , 2019 aad 10 hav on Syme AY, aO/F a oO wm > es mm 7A 1 3 WANGHESDS EER. EXHIBIT pi ich waren teb 07 BER CH rollq +300: | tq) ia] |_sauy suse ag Say ba 196 LOT 12 LOTI is LoT 10 [a LOT 9 S LORS “1 tor7 xls % ae ~ fe ae ae ee pee MIRIAM GERTRUDE TZEFF now “eegn WMERLY GEOAGE A.SMITH” ee Pe Sa 1TH Ugets® a4, FG way Pi sumetl> ost s000" Bao to59 a —ae ——#& —— tee, FORMERLY SAGAMORE arsed AGAH Se aa026' asaoe LoT A lore 2.25,000¢ £32,200" 7] [yeaa Eu towed 9 ReneS 3238" 290" LoT & Lot ¢ 27,0002 PLAN BOOK 9S PLANS gle ESS AEIOTEN OF DEEDS, a0, OFT, 2 162, Recelyed Sabla 24 9 bo a Lots ee poll HOY e QI £15,500" foot ATE sae 2007 Pr editor of bouts Lot¢ £/ 37 27,9008 — 6 PLAN-OF LAND s AT 200. tag WINGAERSHEEK BEACH 290.6% GLOUCESTER, MASS. LoT a £19g002" SCALE LIN= 50.FT JULY 19,1960. oy rte’ ee ferey and contin ——o * feghtin ie fsAgi. 9 ~ca—— fen eh,’ K oN se ae Se a4 Ae] ie sian ede sont