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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-01587
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN )
WINGAERSHEEK REALTY TRUST, )
Plaintiff
Vv.
)
JOHN F, O’BRIEN, et al., )
Defendants )
PLAINTIFF’S REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust
(“Plaintiff”) requests that this Honorable Court make the following findings of fact and
conclusions of law:
INTRODUCTION
In this case, the Plaintiff alleges that Defendants John F. O’Brien and Bonita J. O’Brien
have misused, abused, and overburdened a certain common easement, running the length of the
Plaintiff's property to Coffin’s Beach in Gloucester, by, among other things, driving four-wheel
all-terrain vehicles (hereinafter “ATVs”) along the easement. Additionally, the Plaintiff alleges
that the Defendants have created a private nuisance by way of their use of the subject easement,
and have damaged the Plaintiff's real and personal property as a result. The Plaintiff waived his
original claim for trespass arising out of the Defendants’ conduct.
Prior to the start of trial, the Court asked the parties to submit their respective proposed
rulings of law so that the Court could determine at the outset whether the subject easement across
the Plaintiff's property permitted the operation of vehicles, in general, and so-called recreation or
all-terrain vehicles, in particular. After argument, the Court made the following holding: “the
easement in question does not prohibit the reasonable use of motorized vehicles to get to and
from Wingaersheek Beach ‘for bathing, beaching and mooring of boats and for all other
purposes for which a beach is used.’” See Docket, Paper No. 52, pp. 1 and 7.
Asaresult of the court’s holding, the issues for trial were the following: (1) whether the
Defendants use of all-terrain vehicles over the subject easement constituted an overburdening of
the easement which requires permanent injunctive relief, and (2) whether the Defendants’
conduct had created a nuisance requiring permanent injunctive relief and an award of damages.
The trial took place occurred on the following dates in 2020: January 24, January 27, and
January 28. The following witnesses testified: Philip J. Mazzola; Paul Bruno; Donna Bruno;
Samuel J. Nigro, Jr.; Bonita J. O’Brien; John J. O’Brien, Jr.; and Roberta Mazzola. Seventy-four
(74) exhibits were entered into evidence, most by agreement of the parties.
PROPOSED FINDINGS OF FACT
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”).
Exhibit 1 - Agreed Facts, {J
2 Defendants John F. O’Brien and Bonita J. O’Brien are the owners of the real
property located at § Sand Dollar Circle, Gloucester, Massachusetts (the “O’Brien Property”), as
more particularly shown as “Lot D” on the Lot Plan. Exhibit 1, 2
' Notwithstanding the Court’s pre-trial ruling on the issue, in order to preserve his rights on
'
appeal, the Plaintiff includes herein his proposed findings of fact and conclusions of law relating
to the issue of whether the easement provided the Defendants the right to operate ATVs on the
Plaintiff's property.
3 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. Exhibit 1, 93
4. 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,
i. 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”). Exhibit 1, 94
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 Wingaersheck 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”), Exhibit 1, 94
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.
Said deed refers to the Easement in substantially similar language as that
of the Hosmer Deed. Exhibit 1, 94
iti. 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. Said deed refers to the Easement in
substantially similar language as that of the Hosmer Deed. Exhibit 1, [4
lV, 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.
Said deed conveyed the Mazzola Property “subject to easements... and
reservations of record which are in force [a]nd applicable.” Exhibit 1, 94
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 ?, Said deed does not contain the word “easement”. The Grantor
served to itself and to the future owners of the lots being conveyed “the right
2 By confirmation deed dated April 27, 1965, Bengt Eriksson, as Trustee of the Ellis Farm Trust,
a
conveyed to Gustav V. Peterson and Bengt Eriksson, as Trustees of the Nosskire Trust, title to
parcel of land including the O’Brien Property, recorded in the Registry in Book 5263, Page 99.
The deed contains the same reservation of rights as the original deed.
4
to use the area between 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 customarily used.” Exhibit 1, 94
1 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. Said deed refers to the Easement in substantially similar language
as that of the Hosmer Deed The Grantor reserved to itself and to the future
owners of the lots being conveyed “the right to use the area between 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 customarily
used.” Exhibit 1, 94
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
the Registry in Book 5649, Page 94. The deed included the following
language: “[T]he right for the grantee, his heirs, assigns and his guests to use
the area between mean high water mark and the “bank” as shown on plan
recorded with the Essex South Deeds Plan 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 thereto, a right of way across the northwesterly side of Lot no. 10 on
the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide
adjacent to land now or formerly of Katzeff and leading from Sagamore Road 1
'
to Wingaersheek Beach, approximately the distance of 450 feet.” Exhibit 1,
94
IV. By deed dated October 16, 1978, Charles T. Beaton et ux. conveyed to John
T. O’Brien (sic) and Benita (sic) J. O’Brien, as tenants by the entirety, title to
the O’Brien Property, recorded in the Registry in Book 6528, Page 293. The
deed included the following language: “[T)he right for the grantee, his heirs,
assigns and his guests to use the area between mean high water mark and the
“bank” as shown on plan recorded with the Essex South Deeds Plan 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 thereto, a right of way across the northwesterly
side of Lot no. 10- on the plan above mentioned and/or in Plan Book 95, Plan
6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from
Sagamore Road to Wingaersheek Beach, approximately the distance of 450
feet.” Exhibit 1, 44
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. Said deed recites a grant to a right of way across the northwesterly side
of the Mazzola Property and includes the following language: “[Tjhe right for
the grantors, their heirs, assigns and their guests to use the area between mean
high water mark and the “bank” as shown on plan recorded with the Essex
South Deeds Plan 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 thereto, a right of way
across the northwesterly side of Lot no. 10 on the plan above mentioned
and/or in Plan Book 95, Plan 6, 15 feet wide adjacent to land now or formerly
of Katzeff and leading from Sagamore Road to Wingaersheek Beach,
approximately the distance of 450 feet.” Exhibit 1, {4
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. Said deed recites
a grant to a right of way across the northwesterly side of the Mazzola Property
. The deed included the following language: “[T]he right for the grantee, his
heirs, assigns and his guests to use the area between mean high water mark
and the “bank” as shown on plan recorded with the Essex South Deeds Plan
Book 106, Plan 22 arid 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 thereto, a right of way across the
northwesterly side of Lot no. 10 on the plan above mentioned and/or in Plan
Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and
leading from Sagamore Road to Wingaersheek Beach, approximately the
distance of 450 feet. Exhibit 1, 14
5 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.
Exhibit 1, 45
6 The Easement comprises mostly gravel, dirt and sand and runs the entire length of
the Mazzola Property from Wingaersheek Road to Coffins Beach. Exhibit 1, 16
7. The Easement is located less than one hundred fifty (150) feet from the Plaintiff's
dwelling on the Mazzola Property. Exhibit 1, 7
8 The Plaintiff and his wife Roberta Mazzola decided to purchase the property in
1994 because of its location ~ in a less-congested, quiet residential area on the beach. Exhibit
16. Testimony of Philip Mazzola; Testimony of Roberta Mazzola.
9 The Plaintiff and his wife bought the property in 1994 after renting in that
neighborhood for years. They bought it because of its location and because it is in a quiet
neighborhood. Testimony of Philip Mazzola; Testimony of Roberta Mazzola.
10, The Mazzolas enjoyed the beach because of the shallow bay, spectacular view of
both sunrises and sunsets, and the quiet nature of the neighborhood. Testimony of Roberta
Mazzola; Testimony of Philip Mazzola..
ll. The Mazzolas began building a new home in 1998. It was completed at the end
of 1999, just before they moved to Texas for Mr. Mazzola’s job. Testimony of Roberta
Mazzola; Testimony of Philip Mazzola.
12. The Mazzolas and children spent considerable time at the beach house in the
summers, almost constantly during the first 5 years of ownership. Testimony of Roberta
Mazzola; Testimony of Philip Mazzola.
13, During the spring and fall months from 1994 to 1999, they used the property
when it was warm enough. Testimony of Roberta Mazzola; Testimony of Philip Mazzola.
14. The property was a place to avoid the stress of the world. The Mazzolas were
able to get away from that stress by spending time at the property. Testimony of Roberta
Mazzola; Testimony of Philip Mazzola.
15. From 1999 to 2004, the Mazzolas lived in Texas. During that time, Roberta
returned to Massachusetts on a regular basis (every 6 weeks) to visit with their daughter and
spent considerable time at the beach house. Testimony of Roberta Mazzola; Testimony of Philip
Mazzola.
16. Much more time was spent outside once the new home was built because of the
beautiful deck. Roberta generally spends most of her time on the deck. Testimony of Roberta
Mazzola.
17. Unless weather prohibits it, they use the deck. Testimony of Roberta Mazzola.
18. Once the Plaintiff retired in 2005, the Mazzolas moved full-time to the beach
house until they bought a new house in Carlisle, Massachusetts in 2008. Testimony of Roberta
Mazzola; Testimony of Philip Mazzola.
19, The Mazzolas would see Defendant John O’Brien, Sr., John O’Brien, Jr., and
Wendy Ercolani operating ATVs on the easement over the years leading up to 2016. However,
those uses were sporadic and limited. Testimony of Roberta Mazzola; Testimony of Philip
Mazzola.
20. Prior to 2017, the use of ATVs by John O’Brien, Jr. on the easement was limited.
Testimony of Roberta Mazzola.
21, On August 3, 2016, a letter was sent to the Defendants demanding that they cease
ATV use on the easement. Testimony of Roberta Mazzola; Exhibit 63.
22. The demand was sent due to significant damage to the dune by the frequency of
use of ATVs by the Defendants and their guests and invitees on the easement. Testimony of
Roberta Mazzola.
23. The Defendants’ use of ATVs over the easement did not stop after the demand.
Testimony of Roberta Mazzola.
24. In fact, in the summer of 2017, John O’Brien, Jr’s use of ATVs on the easement
increased dramatically. There was use two to three days during weekdays, meaning up to six
trips (three round trips). Testimony of Roberta Mazzola.
25. Weekend trips by the Defendants increased significantly in the summer of 2017.
The majority of trips were taken by John O’Brien, Jr. with some by Wendy Ercolani. Testimony
of Roberta Mazzola; Testimony of Philip Mazzola; Exhibit 64. Exhibits 71 and 73 contain
various videos that show some of this activity along the easement.
26. On a typical sunny day in the summer of 2017, John O’Brien, Jr. made .a
minimum of four (two roundtrips) per day, culminating in an all-time high of twenty (ten
roundtrips) trips on Labor Day. Testimony of Roberta Mazzola. John O’Brien, Jr. had no
memory at trial of how many trips he made during that time. Testimony of John O’Brien, Jr.
27. John O’Brien, Jr. used ATVs to tow a trailer and jet ski and to bring passengers
and beach gear to and from the beach. Testimony of Roberta Mazzola.
10
28. Roberta Mazzola witnessed damage to the dune after John O’Brien, Jr’s ATV
traveled over the dune. Testimony of Roberta Mazzola. Paul Bruno, a neighbor who spent
considerable time at the beach during the summer of 2017, also witnessed and described this
damage to the beach grass and the widening and deepening of the path. Testimony of Paul
Bruno.
29. Roberta Mazzola witnessed tire marks and damaged beach grass after John
O’Brien, Jr. had driven on the easement. Exhibits 35, 36, 37; Testimony of Roberta Mazzola.
30. The Defendants’ use of ATVs on the easement has damaged the dune and beach
grass along the easement and it has widened and deepened the sandy part of the easement.
Exhibit 64; Testimony of Philip Mazzola, Testimony of Roberta Mazzola; Testimony of Paul
Bruno; Testimony of Donna Bruno.
31. Exhibit 52 shows the condition of the sandy part of the easement before it had
been driven on and was taken before the Defendants’ increased use of ATVs on the easement in
2017. Exhibits 35, 36, and 37 show the condition of the sandy part after use of ATVs over it by
the Defendants and their guests. Testimony of Roberta Mazzola; Testimony of Philip Mazzola.
32. The Plaintiff's and his family’s use and enjoyment has been affected negatively
by the Defendants’ use of ATVs on the easement. The noise interferes with anything being done
on the deck — talking, eating, resting, and napping. The dune has been damaged, widened, ‘and
deepened by the ATV use. Testimony of Philip Mazzola; Testimony of Roberta Mazzola;
Exhibit 64; Testimony of Paul Bruno.
33. The ATV is about as loud as a motorcycle. The noise level of the ATV is
extreme, so much so that people cannot hear cach other speaking while on the deck. Testimony
of Roberta Mazzola; Testimony of Philip Mazzola; Testimony of Paul Bruno.
lt
34. Because there has been no ATV use by the Defendants and their guests on the
path since the injunction entered in this case, the Mazzolas’ ability to use and enjoy the deck and
their property has been back to what it was before the summer of 2017. Testimony of Roberta
Mazzola.
35. The Defendants’ increased use of ATVs has changed the Mazzolas’ desire to use
their beach house. It used to be an enjoyable experience to get away from stress that they looked
forward to. Now, it can only be enjoyed intermittently. Testimony of Roberta Mazzola.
36. The Defendants contend that they have the right to pass over the entire easement
via ATVs and other vehicles. Testimony of Bonita O’Brien; Exhibit 74 (pp. 103, 265)
37. Every time John O’Brien, Jr. goes to the beach by ATV he uses the path over the
Plaintiff's property. Testimony of Bonita O’Brien; Exhibit 74 (pp. 159, 160-161); Testimony of
John O’Brien, Jr.
38. Every time John O’Brien, Jr. has used the path it has been as a guest of the
Defendants. Testimony of Bonita O’Brien; Testimony of John O’Brien, Jr.; Exhibit 74 (pp. 151-
152)
39, Wendy Ercolani has used the easement with the Defendants’ permission via
Defendants’ easement rights. Testimony of Bonita O’Brien.
40. The Defendants have no document signed by the Plaintiff, Mrs. Mazzola, any
agent of the Plaintiff or any predecessor of the Plaintiff authorizing the Defendants to use ATVs
on the Plaintiff's property. Testimony of Bonita O’Brien; Exhibit 74 (pp. 236-237)
41. John O’Brien, Jr. has no document signed by the Plaintiff, Mrs. Mazzola, any
agent of the Plaintiff, or any predecessor of the Plaintiff authorizing the Defendants to use ATVs
12
on the Plaintiff's property. Testimony of Bonita O’Brien; Testimony of John O’Brien, Jr.;
Testimony of Philip Mazzola.
PROPOSED CONCLUSIONS OF LAW AND RATIONALE FOR ORDER OF
JUDGMENT
A Whether the Defendants May Operate ATVs on the Subject Easement
Central to this case is whether the Defendants’ easement right “to pass and repass to and
from the beach area’, as set forth in the June 5, 1963 deed from Eriksson, Trustee to Hosmer
(Essex County (South) Registry of Deeds, Book 5079, Page 514) 3, includes the right to drive
ATVs, as defined in Mass.Gen.Laws c. 90B, § 26(e) and 323 CMR 3.02, on said casement, or
whether such use is prohibited and constitutes an overburdening of the easement and a nuisance.
A determination of this issue requires interpretation by this Court of the instrument in question
and the applicability of the above-referenced statute and regulation to the instrument and to the
uses which the Defendants and their guests and invitees have made of the subject easement.
1 Misuse, Abuse, or Overburdening of Easement — Count]
a Burden of Proof
As to the nature and permissible extent of the easement, the burden of proof rests upon
the Defendants because they are the parties asserting the right to use the subject easement in a
particular way, i.e., by driving ATVs over it. See Boudreau v. Coleman, 29 Mass.App.Ct. 621,
629 (1990\("The [party] asserting the easement ... [has] the burden of proving its existence.").
See also Swensen v. Marino, 306 Mass. 583, 583 (1940); and Leyy v. Reardon, 43 Mass. App.Ct.
3 Bengt Eriksson, Trustee of the Ellis Farm Trust, was the parties’ common predecessor-in-title.
By reservation in his deed, Eriksson created the subject easement and conveyed the subject
property to the Plaintiff's predeccssor-in-title, Hosmer. Exhibit 1, J 4@)(a)(re: Mazzola
property). By deed dated June 15, 1965 (Essex County (South) Registry of Deeds, Book 5277,
and Gustav Peterson, co-trustees of the Nosskire Trust, conveyed the
Page 706), Eriksson
Defendants’ property to the Defendants’ predecessor-in: -title, Eugene N, Siskind, Trustee of the
Samson Realty Trust. Exhibit 1, § 4(ii)(re: O’Brien property).
13
431, 434 (1997). “The fact that the [P]laintiff initiated this action does not shift that burden to
him.” Foley v. McGonigle, 3 Mass.App.Ct. 746 (1975)(rescript), citing Stop & Shop, Inc. v.
Ganem, 347 Mass. 697, 703-704 (1964).
b The Plain Language of the Subject Easement Instrument Does Not Permit the Us
by the Defendants of ATVs on the Easement
The interpretation of a deed is a question of law for the Court. Skye v. Hession, 91
Mass.App.Ct. 423, 425 (2017). Where, as here, an easement is granted or reserved by deed, it is
subject to the general rules of deed interpretation. See Sheftel v. Lebel, 44 Mass.App.Ct. 175,
179 (1998). The meaning of an easement created by deed, “derived from the presumed intent of
the grantor, is to be ascertained from the words used in the written instrument, construed when
necessary in the light of the attendant circumstances.” White v. Hartigan, 464 Mass. 400, 410-
411 (2013). Thus, the extent of an easement created by deed is fixed by the terms of the
conveyance, and the language used is the primary source for the ascertainment of the meaning of
the easement. Sheftel, supra, 44 Mass.App.Ct. at 179.
A limited right of way and the use thereof cannot be expanded into a general easement
greater than that contemplated or intended by the parties to the easement. Socony Mobil Oil Co.,
Inc. v. Cottle, 336 Mass. 192, 197 (1957). Where “an easement is stated to be for a limited
purpose it is limited to the purpose stated.” Comeau vy. Manzelli, 344 Mass. 375, 381 (1962).
The Plaintiff's property, as the servient estate, cannot be burdened by the Defendants’ use of the
easement to a greater extent than was intended at the time of the original grant in 1963. Doody
vy. Spurr, 315 Mass. 129, 133 (1943). Overburdening occurs when the dominant owner exceeds
the scope of rights possessed under the easement. Southwick v. Planning Board of Plymouth, 65
Mass.App.Ct, 315, 319 n. 12 (2005). See also Cannata v. Berkshire Natural Resources Council,
Inc., 73 Mass.App.C.t 789, 797 (2009)(*The concept of overburdening applies frequently when
14
an easement holder has expanded the use of its easement to the detriment of a servient
landowner.”), A use may change over time through normal evolution to satisfy new needs, but
variations cannot be substantial; they must be consistent with the general pattern formed by
adverse use. Carmel v, Baillargeon, 21 Mass.App.Ct. 426, 431 (1986). In other words, “
mutation is not within the scope of normal development.” Glenn y. Poole, 12 Mass.App.Ct. 292
295 (1981).
The subject easement provides the Defendants with the right “to pass and repass to and
from the beach area...” By its terms, it is a limited easement and therefore limited to that stated
purpose. See Socony Mobil Oil Co., Inc., supra, 336 Mass. at 197, and Comeau, supra, 344
Mass. at 381. “Because the language of the easement is clear and explicit, and without
ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that
the parties intended something different.” Westchester Associates, Inc. v. Boston Edison Co., 47
Mass.App.Ct. 133, 135 (1999). The easement says nothing about vehicles of any kind being
permitted on the subject right of way. It is thus limited to the passing and repassing to and from
the beach by foot. Socony Mobil Oil Co., Inc., 336 Mass. at 197. Contrast Hodgkins _v.
Bianchini, 323 Mass. 169, 172 (1948)(Where easement gave a right to pass to and from a street
via a “cart path”, easement’s use was not restricted to horse-drawn vehicles.); Marden v. Mallard
Decoy Club, Inc., 361 Mass. 105, 107 (1972)(Where easement language talked of “necessary
privileges of passing and repassing to improve their several shares”, together with references to a
“causeway” and a “cartway”, the easement permitted the use of motor vehicles.). By the plain
language of the subject easement, in light of the facts that it contains no language permitting
vehicles of any kind, the Defendants do not have the right to drive any vehicles, including ATVs,
on the easement.
15
Mass.Gen.Laws c. 90B, § 26(e) and 323 CMR 3,03(2) Prohibit Use of ATVs on the
Easement Because the Defendants Do Not Possess the Requisite Written
Authorization
Even if the easement instrument gave the Defendants the right to drive vehicles on the
easement, that instrument does not and cannot give the Defendants the right to pass with ATVs.
That use is prohibited as a matter of law. 4 No person shall operate a “recreation vehicle” 5 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 property; (ii) the operator has in his possession either a
document, signed by the owner or lessee of such property or his agent, authorizing the operation
of a such [sic] vehicle on the property by the operator or valid proof of current membership in a
club, association or other organization to which express authorization for the operation of such
vehicles on the property has been granted; provided, however, that such operation shall be
consistent with the express authorization granted and any restrictions imposed therewith; or (iii)
the owner or lessee of the property has designated the area for use by such vehicles by posting
reasonable notice of such designation in a manner approved by the director.” Mass.Gen.Laws c.
90B, § 26(e)(i)-(iii) 7; see also 323 CMR 3.03(2). ® It is undisputed that the Defendants do not
4 The Court has taken judicial notice of Mass.Gen.Laws . 90B, §§ 21 to 35, and 323 CMR §§
3.01, 3.02, 3.03, and 3.10.
5 A “recreation vehicle” or “off-highway vehicle” is any motor vehicle designed or modified for
use over unimproved terrain for recreation or pleasure while not being operated on a public way
including, but not limited to, ATVs, recreation utility vehicles, and all registered motor vehicles
while not being operated on a public way. Mass.Gen.Laws c. 90B, § 20; and 323 CMR 3.02.
6 The Legislature must have meant to'use the phrase “such a vehicle”, not “a such vehicle”. The
Plaintiff hereafter uses the former phrase.
7 The language that now comprises subsection (ce) of Section 26 of the statute was first added to
the statute in 1998, via Chapter 362 of the Acts of 1998. Originally, that subsection dealt only
The term “recreation vehicle”, as
with “snow vehicles”, as defined in Section 20 of the statute.
defined in said Section 20 to include ATVs, was added as part of a rewriting of Section 26 in
2010, via Section 13 of Chapter 202 of the Acts of 2010.
8 The applicable regulations also provide that no person shall operate an ATV “within 150 fect
of an occupied residence without the permission of the owner, his or her agent or lessee of such
16
own or lease the subject property and it is undisputed that the Plaintiff has not designated the
easement for use by ATVs by posting. Therefore, subsections (i) and (iii) of Section 26(e) do
not justify the Defendants’ use of the Plaintiff's property for ATV use.
Most importantly and pertinent to this case, it is undisputed that the Defendants do not
possess a document signed by the Plaintiff authorizing their use of ATVs on the Plaintiff's
property. See Testimony of Bonita O’Brien; Exhibit 74; Testimony of Philip Mazzola;
Testimony of John O’Brien, Jr. The language of the subject easement instrument does not
expressly authorize such use. Accordingly, the Defendants cannot satisfy subsection (ii) of
Section 26(e) of Chapter 90B®. A servitude that authorizes a use prohibited by statute or
regulation is illegal and unenforceable. See Restatement (Third) of Property (Servitudes) § 3.1,
and comment c thereto (2000). Because the Defendants do not possess the requisite signed
authorization from the Plaintiff, their use of ATVs on the subject easement is a violation of
Mass.Gen.Laws c. 90B, § 26(c)(ii) and 323 CMR 3.03(2)(a)(2), and any past use of that kind was
a similar violation. Accordingly, as a matter of law, any purported right to operate ATVs on the
residence...”" See 323 CMR 3.03(3). The parties have stipulated that the subject easement, on
which the Defendants claim they can operate ATVs, is less than 150 feet from the Plaintiff's
dwelling. See Exhibit 1 - Stipulated Facts, 4] 7. It is undisputed that the Defendants do not
have the Plaintiff's permission to operate ATVs on the Plaintiff's property, and the use of such
vehicles may not be implied from the language of the easement. Accordingly, the operation of
ATVs on the easement by the Defendants and their guests and invitees is also in violation of 323
CMR 3.03(3).
9 Areas of the easement where the Defendants have operated ATVs are within 150 feet of the
Plaintiff's home. Exhibit 1, J7. In fact, portions are as close as 13 feet from the Plaintiff's
home. Exhibit 64, 7.
10 Massachusetts courts have resorted to the Restatement of Property as an, authoritative
statement of the common law. See, ¢.g., Kaplan v. Boudreaux, 410 Mass. 435, 440 (1991); Cater
v. Bednarek, 462 Mass. 523, 531 (2012); Lowell v. Piper, 31 Mass.App.Ct. 225, 229-230 (1991);
Cheever_v. Graves, 32 Mass.App.Ct. 601, 607 (1992); and Kessler_y. Harrington, 84
Mass.App.Ct. 1136 (2014)(unpublished).
17
subject easement is illegal and unenforceable, and the use of such vehicles on the easement by
the Defendants, their guests, and their invitees constitutes an overburdening of the easement.
The Defendants do not claim a writing specifically authorizing ATV use; they rely only
on the general language and nature of the easement to satisfy the provision of 26(e)(ii). Is a
document authorizing a general right to use real property of another sufficient under
Mass.Gen.Laws c. 90B, §26(e)(ii) to authorize ATV use, as claimed by the Defendants, or does
that section require a document that specifically authorizes ATV use as claimed by the Plaintiff?
The key word informing the interpretation of subsection (ii) is the word “lessee” found
first in subsection (i). '! Absent a posting of land available for ATV use, ATV use on private
property is limited to the following operators: (1) the owner of land; (2) the lessee of land; and
(3) the possessor of a signed document authorizing the operation of such a vehicle. A lessee is a
person in exclusive possession of the property of another under a document, a lease 12, signed by
the owner, with a general right to use that real property. If all that is needed under Section
26(c)(ii) is a general right-to-use real estate document, there would be no need of the word
“lessee” in Section 26(e)(i). Every lessee would necessarily be in possession of a right-to-use
document signed by the owner and, thus satisfying Section 26(e)(ii), have the right to operate an
ATV. But the Legislature did not consider Section 26(e)(ii) to contemplate or include a
A “statute should be read as a whole to produce an internal consistency.” Singer _v.
Friedlander Corp. v. State Lottery Commission, 423 Mass. 562, 565 (1996). Courts “do not read
a statute so as to render any of its terms meaningless or superfluous.” Banushi v. Dorfman, 438
Mass. 242, 245 (2002). Words and phrases in a statute will not be deemed to have no force or
effect. Milton v. Metropolitan District Commission, 342 Mass. 222, 225 (1961). Courts do not
“interpret a statute in such a way as to make a nullity of its provisions if a sensible construction
is available.” Com. v. Wallace, 431 Mass. 705, 708 (2000). Finally, courts “must not ignore
language or produce an illogical result.”. ROPT Limited Partnership v. Katin, 431 Mass. 601,
603 (2000).
to use
'2 A lease is “[a] contract by which a rightful possessor of real property conveys the right
and occupy that property in exchange for consideration...” Black’s Law Dictionary, Seventh
Edition, p. 898 (1999).
18
document authorizing a general right to use real estate. Therefore, because the Legislature did
contemplate that one who has the right to exclusive possession and use, such as an owner or
lessee, should have the right to operate on that real estate an ATV, the Legislature authorized an 4
owner or lessee to use an ATV on the land he or she has the exclusive right to use pursuant to
ti
Section 26(e)(i). An interpretation of 26(e)(ii) to mean a lease satisfies the “document”
requirement of that section impermissibly treats the word lessee in 26(e)(i) as surplusage. Unless
one is an owner or lessee, he or she must have a document specifically authorizing ATV use on
the real property of another, in compliance with Section 26(e)(ii).
Here, the Defendants are neither owners nor lessees of the subject property. The
Defendants have no right to exclusive use of the easement area. They share the right to use the
easement area with the Plaintiff and others under a document authorizing the general right to use
land of another, a document created nearly 50 years before the Legislature’s limiting where one
can operate his or her ATV. '3 The Legislature could have treated, but did not, easement holders
the same as lessees by identifying them in Section 26(e)(i). It chose not to do so, a choice which
is logical because there is a well-recognized distinction between those with exclusive possessory
rights (owners and lessees) and those with lesser rights (easement holders). The Legislature
knows how to grant rights to the class of easement holders. See, e.g., Mass.Gen.Laws c. 187, § 5 a
4
(Statute allows an easement holder the right to lay utilities within the easement).
4
Where, as here, the Defendants are easement holders and not lessees, they do not enjoy
Section 26(e)(i) status. To contend that an easement document, a document granting rights
inferior to those under a lease, gives ATV-operator rights under Section 26(e)(ii) where a lease
134 Jessee’s exclusive right to use real property is the antithesis of what an easement holder
possesses, i.¢., a limited, nonpossessory interest in the property. M.P.M. Builders, LLC v.
Dwyer, 442 Mass 87, 92:(2004).
19
does not is illogical and wholly unsupported. The Plaintiff has not posted his land authorizing
ATV use under Section 26(e)(iii). Thus, none of the exceptions of Section 26(e) being
applicable, the Defendants’ use of the Plaintiff's private property for ATV use is prohibited by
statute.
The Plaintiff's interpretation is wholly consistent with the language of Section 26(e)(ii)
which talks of a signed document authorizing the operation of such a vehicle. It is not enough
for ATV use under (ii) that one have the right to use the property of another authorizing the use
of a vehicle, only such a vehicle, ic, an ATV. There is no dispute that the document
authorizing the Defendants to use the Plaintiff's property, assuming it is interpreted to allow any
vehicle use, does not authorize the operation of such a vehicle: an ATV. Again, the legislative
distinction is logical and a recognition that ATV use is obnoxious, if not dangerous, '4 and use of
another’s property by ATV is not to be found by implication, but only by express authorization.
Just as the Legislature could have included an easement holder in Section 26(e)(i), but did not, it
could have included as a document sufficient to authorize ATV use on land of another an
easement giving the operator the general right to pass and repass over land of another. The
Legislature did not do so because it did not intend that result.
The Plaintiff's interpretation is also wholly consistent with the language of Section
26(e)Gi) which says that.“such operation shall be consistent with the express authorization
granted ... » See Section 26(e)(ii)(emphasis added). The Defendants cannot point to any
language in the easement which expressly authorizes operation of an ATV. The most the
Defendants can argue is that the right to so operate is implicit in the general grant of easement.
4 Hence the regulation that, even where ATV use is expressly authorized, an additional
authorization is required to operate an ATV within 150 feet of an occupied residence. See 323
CMR 3.03(3). Any suggestion that the 150 foot restriction can be satisfied by a general
easement defies logic.
* 20
.
The Defendants’ argument of implicit authorization is the antithesis of the statutorily-required
“express authorization”.
2. Nuisance — Count Two
An easement holder overburdens an easement when he or she expands the use of the
easement to the detriment of the servient owner. Cannata, supra, 73 Mass.App.Ct. at 797.
Where the dominant owner exceeds the scope of rights possessed under the easement, the
easement is overburdened. Southwick, supra, 65 Mass.App.Ct. at 319 n. 12. A nuisance may
result from the overburdening of an easement. Westchester Associates, Inc. v. Boston Edison
Company, 47 Mass.App.Ct. 133, 135 (1999).
As stated above, the Defendants’ operation of ATVs on the subject easement is illegal
and unenforceable as a matter of law. Thus, as a matter of law, their use of such vehicles on the
easement exceeds the scope of their easement rights and it constitutes an overburdening of the
easement and, consequently, a nuisance for which they should be compensated.
B. Whether the Extent of the Defendants’ Use of ATVs on the Subject Easement
Constitutes an Overburdening of the Easement and Whether Such Overburdening
of the Easement Has Created a Nuisance
1. The Extent of Defendants’ Use of ATVs Has Resulted in Overburdening of the
Easement
The use of ATVs over the easement, particularly over the sandy path portion of the
easement, by the Defendants and their guests and invitees has been unreasonable. John O’Brien,
Jr.’s use with the Defendants’ permission has been excessive, particularly during the summer of
2017 and Labor Day weekend of 2017. This expansion of easement rights by the Defendants has
been to the detriment of the Plaintiff and his family. Appropriate injunctive relief is necessary to
protect the Plaintiff's rights and property.
21
.
2. Overburdening of Easement by the Extent of the Defendants’ Use of ATVs Ha
Created a Nuisance
A nuisance may result from an overly intensive use or an overburdening of an easement
by the dominant owner, such that it substantially interferes with the servient owner’s ordinary
comfort of human existence, or is substantially detrimental to the reasonable use or value of the
servient estate. Westchester Associates, Inc. v. Boston Edison Company, 47 Mass.App.Ct. 133,
135 (1999); Metropoulos v. MacPherson, 241 Mass. 491, 502 (1922).
Here, the Court concludes as a matter of law that the use of ATVs on the subject
easement by the Defendants and their guests and invitees constitutes an overly intensive use and
an overburdening of the easement. That use has substantially interfered with the Plaintiff's (and
his family’s) ordinary comfort of human existence and is substantially detrimental to the
reasonable use and value of the Plaintiff's property. The Plaintiff and his family have been
disturbed by the loud frequent ATV trips by the Defendants, et al., and the Plaintiffs property
has sustained physical damage as a result. Moreover, the value of the property to the Plaintiff
and his family has been reduced because they cannot use the property to the same extent and in
the same manner as they had before the Defendants created a nuisance by the ATV use over the
easement.
As a result, the Plaintiff has suffered damage in the amount of $ . In addition
to an award of damages for the nuisance, appropriate injunctive relief is necessary to abate that
nuisance.
PROPOSED JUDGMENT
The Court:
1 Declares that the subject easement rights possessed by the Defendants are limited
to non-motor vehicle travel to and from Coffins Beach;
22
2 Orders that the preliminary injunction entered in this case on or about October 17,
.
2017 be made permanent;
3 Orders that the Defendants, their tenants, lessees, lawful invitees, and guests,
including, but not limited to, son John O’Brien, Jr. and daughter Wendy Ercolani, and all persons
in active concert with them who receive actual notice of this injunction, are hereby permanently
prohibited and enjoined from using, idling, operating, and parking motor vehicles of any kind,
including, but not limited to, recreation vehicles and all-terrain vehicles (as defined in
Mass.Gen.Laws c. 90B, §20), at, across, on, and over any portion of the Plaintiff's property at 17
Wingaersheek Road, Gloucester, Massachusetts, including, but not limited to, that portion of said
property burdened by a nominal fifteen foot casement along the northwest boundary of said
property from Wingaersheek Road to Coffins Beach;
4 Orders that judgment enter in favor of the Plaintiff and against the Defendants on
Count One of the Complaint in the amount of $ , plus interest and costs, and that
the injunctive relief stated in (3) above be entered; and
5 Orders that judgment enter in favor of the Plaintiff and against the Defendants on
Count II of the Complaint in the amount of $
Preview
G5 1 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1677-CV-01587 PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN ) WINGAERSHEEK REALTY TRUST, ) Plaintiff Vv. ) JOHN F, O’BRIEN, et al., ) Defendants ) PLAINTIFF’S REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust (“Plaintiff”) requests that this Honorable Court make the following findings of fact and conclusions of law: INTRODUCTION In this case, the Plaintiff alleges that Defendants John F. O’Brien and Bonita J. O’Brien have misused, abused, and overburdened a certain common easement, running the length of the Plaintiff's property to Coffin’s Beach in Gloucester, by, among other things, driving four-wheel all-terrain vehicles (hereinafter “ATVs”) along the easement. Additionally, the Plaintiff alleges that the Defendants have created a private nuisance by way of their use of the subject easement, and have damaged the Plaintiff's real and personal property as a result. The Plaintiff waived his original claim for trespass arising out of the Defendants’ conduct. Prior to the start of trial, the Court asked the parties to submit their respective proposed rulings of law so that the Court could determine at the outset whether the subject easement across the Plaintiff's property permitted the operation of vehicles, in general, and so-called recreation or all-terrain vehicles, in particular. After argument, the Court made the following holding: “the easement in question does not prohibit the reasonable use of motorized vehicles to get to and from Wingaersheek Beach ‘for bathing, beaching and mooring of boats and for all other purposes for which a beach is used.’” See Docket, Paper No. 52, pp. 1 and 7. Asaresult of the court’s holding, the issues for trial were the following: (1) whether the Defendants use of all-terrain vehicles over the subject easement constituted an overburdening of the easement which requires permanent injunctive relief, and (2) whether the Defendants’ conduct had created a nuisance requiring permanent injunctive relief and an award of damages. The trial took place occurred on the following dates in 2020: January 24, January 27, and January 28. The following witnesses testified: Philip J. Mazzola; Paul Bruno; Donna Bruno; Samuel J. Nigro, Jr.; Bonita J. O’Brien; John J. O’Brien, Jr.; and Roberta Mazzola. Seventy-four (74) exhibits were entered into evidence, most by agreement of the parties. PROPOSED FINDINGS OF FACT 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”). Exhibit 1 - Agreed Facts, {J 2 Defendants John F. O’Brien and Bonita J. O’Brien are the owners of the real property located at § Sand Dollar Circle, Gloucester, Massachusetts (the “O’Brien Property”), as more particularly shown as “Lot D” on the Lot Plan. Exhibit 1, 2 ' Notwithstanding the Court’s pre-trial ruling on the issue, in order to preserve his rights on ' appeal, the Plaintiff includes herein his proposed findings of fact and conclusions of law relating to the issue of whether the easement provided the Defendants the right to operate ATVs on the Plaintiff's property. 3 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. Exhibit 1, 93 4. 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, i. 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”). Exhibit 1, 94 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 Wingaersheck 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”), Exhibit 1, 94 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. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed. Exhibit 1, 94 iti. 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. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed. Exhibit 1, [4 lV, 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. Said deed conveyed the Mazzola Property “subject to easements... and reservations of record which are in force [a]nd applicable.” Exhibit 1, 94 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 ?, Said deed does not contain the word “easement”. The Grantor served to itself and to the future owners of the lots being conveyed “the right 2 By confirmation deed dated April 27, 1965, Bengt Eriksson, as Trustee of the Ellis Farm Trust, a conveyed to Gustav V. Peterson and Bengt Eriksson, as Trustees of the Nosskire Trust, title to parcel of land including the O’Brien Property, recorded in the Registry in Book 5263, Page 99. The deed contains the same reservation of rights as the original deed. 4 to use the area between 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 customarily used.” Exhibit 1, 94 1 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. Said deed refers to the Easement in substantially similar language as that of the Hosmer Deed The Grantor reserved to itself and to the future owners of the lots being conveyed “the right to use the area between 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 customarily used.” Exhibit 1, 94 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 the Registry in Book 5649, Page 94. The deed included the following language: “[T]he right for the grantee, his heirs, assigns and his guests to use the area between mean high water mark and the “bank” as shown on plan recorded with the Essex South Deeds Plan 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 thereto, a right of way across the northwesterly side of Lot no. 10 on the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road 1 ' to Wingaersheek Beach, approximately the distance of 450 feet.” Exhibit 1, 94 IV. By deed dated October 16, 1978, Charles T. Beaton et ux. conveyed to John T. O’Brien (sic) and Benita (sic) J. O’Brien, as tenants by the entirety, title to the O’Brien Property, recorded in the Registry in Book 6528, Page 293. The deed included the following language: “[T)he right for the grantee, his heirs, assigns and his guests to use the area between mean high water mark and the “bank” as shown on plan recorded with the Essex South Deeds Plan 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 thereto, a right of way across the northwesterly side of Lot no. 10- on the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road to Wingaersheek Beach, approximately the distance of 450 feet.” Exhibit 1, 44 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. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property and includes the following language: “[Tjhe right for the grantors, their heirs, assigns and their guests to use the area between mean high water mark and the “bank” as shown on plan recorded with the Essex South Deeds Plan 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 thereto, a right of way across the northwesterly side of Lot no. 10 on the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road to Wingaersheek Beach, approximately the distance of 450 feet.” Exhibit 1, {4 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. Said deed recites a grant to a right of way across the northwesterly side of the Mazzola Property . The deed included the following language: “[T]he right for the grantee, his heirs, assigns and his guests to use the area between mean high water mark and the “bank” as shown on plan recorded with the Essex South Deeds Plan Book 106, Plan 22 arid 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 thereto, a right of way across the northwesterly side of Lot no. 10 on the plan above mentioned and/or in Plan Book 95, Plan 6, 15 feet wide adjacent to land now or formerly of Katzeff and leading from Sagamore Road to Wingaersheek Beach, approximately the distance of 450 feet. Exhibit 1, 14 5 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. Exhibit 1, 45 6 The Easement comprises mostly gravel, dirt and sand and runs the entire length of the Mazzola Property from Wingaersheek Road to Coffins Beach. Exhibit 1, 16 7. The Easement is located less than one hundred fifty (150) feet from the Plaintiff's dwelling on the Mazzola Property. Exhibit 1, 7 8 The Plaintiff and his wife Roberta Mazzola decided to purchase the property in 1994 because of its location ~ in a less-congested, quiet residential area on the beach. Exhibit 16. Testimony of Philip Mazzola; Testimony of Roberta Mazzola. 9 The Plaintiff and his wife bought the property in 1994 after renting in that neighborhood for years. They bought it because of its location and because it is in a quiet neighborhood. Testimony of Philip Mazzola; Testimony of Roberta Mazzola. 10, The Mazzolas enjoyed the beach because of the shallow bay, spectacular view of both sunrises and sunsets, and the quiet nature of the neighborhood. Testimony of Roberta Mazzola; Testimony of Philip Mazzola.. ll. The Mazzolas began building a new home in 1998. It was completed at the end of 1999, just before they moved to Texas for Mr. Mazzola’s job. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 12. The Mazzolas and children spent considerable time at the beach house in the summers, almost constantly during the first 5 years of ownership. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 13, During the spring and fall months from 1994 to 1999, they used the property when it was warm enough. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 14. The property was a place to avoid the stress of the world. The Mazzolas were able to get away from that stress by spending time at the property. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 15. From 1999 to 2004, the Mazzolas lived in Texas. During that time, Roberta returned to Massachusetts on a regular basis (every 6 weeks) to visit with their daughter and spent considerable time at the beach house. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 16. Much more time was spent outside once the new home was built because of the beautiful deck. Roberta generally spends most of her time on the deck. Testimony of Roberta Mazzola. 17. Unless weather prohibits it, they use the deck. Testimony of Roberta Mazzola. 18. Once the Plaintiff retired in 2005, the Mazzolas moved full-time to the beach house until they bought a new house in Carlisle, Massachusetts in 2008. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 19, The Mazzolas would see Defendant John O’Brien, Sr., John O’Brien, Jr., and Wendy Ercolani operating ATVs on the easement over the years leading up to 2016. However, those uses were sporadic and limited. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 20. Prior to 2017, the use of ATVs by John O’Brien, Jr. on the easement was limited. Testimony of Roberta Mazzola. 21, On August 3, 2016, a letter was sent to the Defendants demanding that they cease ATV use on the easement. Testimony of Roberta Mazzola; Exhibit 63. 22. The demand was sent due to significant damage to the dune by the frequency of use of ATVs by the Defendants and their guests and invitees on the easement. Testimony of Roberta Mazzola. 23. The Defendants’ use of ATVs over the easement did not stop after the demand. Testimony of Roberta Mazzola. 24. In fact, in the summer of 2017, John O’Brien, Jr’s use of ATVs on the easement increased dramatically. There was use two to three days during weekdays, meaning up to six trips (three round trips). Testimony of Roberta Mazzola. 25. Weekend trips by the Defendants increased significantly in the summer of 2017. The majority of trips were taken by John O’Brien, Jr. with some by Wendy Ercolani. Testimony of Roberta Mazzola; Testimony of Philip Mazzola; Exhibit 64. Exhibits 71 and 73 contain various videos that show some of this activity along the easement. 26. On a typical sunny day in the summer of 2017, John O’Brien, Jr. made .a minimum of four (two roundtrips) per day, culminating in an all-time high of twenty (ten roundtrips) trips on Labor Day. Testimony of Roberta Mazzola. John O’Brien, Jr. had no memory at trial of how many trips he made during that time. Testimony of John O’Brien, Jr. 27. John O’Brien, Jr. used ATVs to tow a trailer and jet ski and to bring passengers and beach gear to and from the beach. Testimony of Roberta Mazzola. 10 28. Roberta Mazzola witnessed damage to the dune after John O’Brien, Jr’s ATV traveled over the dune. Testimony of Roberta Mazzola. Paul Bruno, a neighbor who spent considerable time at the beach during the summer of 2017, also witnessed and described this damage to the beach grass and the widening and deepening of the path. Testimony of Paul Bruno. 29. Roberta Mazzola witnessed tire marks and damaged beach grass after John O’Brien, Jr. had driven on the easement. Exhibits 35, 36, 37; Testimony of Roberta Mazzola. 30. The Defendants’ use of ATVs on the easement has damaged the dune and beach grass along the easement and it has widened and deepened the sandy part of the easement. Exhibit 64; Testimony of Philip Mazzola, Testimony of Roberta Mazzola; Testimony of Paul Bruno; Testimony of Donna Bruno. 31. Exhibit 52 shows the condition of the sandy part of the easement before it had been driven on and was taken before the Defendants’ increased use of ATVs on the easement in 2017. Exhibits 35, 36, and 37 show the condition of the sandy part after use of ATVs over it by the Defendants and their guests. Testimony of Roberta Mazzola; Testimony of Philip Mazzola. 32. The Plaintiff's and his family’s use and enjoyment has been affected negatively by the Defendants’ use of ATVs on the easement. The noise interferes with anything being done on the deck — talking, eating, resting, and napping. The dune has been damaged, widened, ‘and deepened by the ATV use. Testimony of Philip Mazzola; Testimony of Roberta Mazzola; Exhibit 64; Testimony of Paul Bruno. 33. The ATV is about as loud as a motorcycle. The noise level of the ATV is extreme, so much so that people cannot hear cach other speaking while on the deck. Testimony of Roberta Mazzola; Testimony of Philip Mazzola; Testimony of Paul Bruno. lt 34. Because there has been no ATV use by the Defendants and their guests on the path since the injunction entered in this case, the Mazzolas’ ability to use and enjoy the deck and their property has been back to what it was before the summer of 2017. Testimony of Roberta Mazzola. 35. The Defendants’ increased use of ATVs has changed the Mazzolas’ desire to use their beach house. It used to be an enjoyable experience to get away from stress that they looked forward to. Now, it can only be enjoyed intermittently. Testimony of Roberta Mazzola. 36. The Defendants contend that they have the right to pass over the entire easement via ATVs and other vehicles. Testimony of Bonita O’Brien; Exhibit 74 (pp. 103, 265) 37. Every time John O’Brien, Jr. goes to the beach by ATV he uses the path over the Plaintiff's property. Testimony of Bonita O’Brien; Exhibit 74 (pp. 159, 160-161); Testimony of John O’Brien, Jr. 38. Every time John O’Brien, Jr. has used the path it has been as a guest of the Defendants. Testimony of Bonita O’Brien; Testimony of John O’Brien, Jr.; Exhibit 74 (pp. 151- 152) 39, Wendy Ercolani has used the easement with the Defendants’ permission via Defendants’ easement rights. Testimony of Bonita O’Brien. 40. The Defendants have no document signed by the Plaintiff, Mrs. Mazzola, any agent of the Plaintiff or any predecessor of the Plaintiff authorizing the Defendants to use ATVs on the Plaintiff's property. Testimony of Bonita O’Brien; Exhibit 74 (pp. 236-237) 41. John O’Brien, Jr. has no document signed by the Plaintiff, Mrs. Mazzola, any agent of the Plaintiff, or any predecessor of the Plaintiff authorizing the Defendants to use ATVs 12 on the Plaintiff's property. Testimony of Bonita O’Brien; Testimony of John O’Brien, Jr.; Testimony of Philip Mazzola. PROPOSED CONCLUSIONS OF LAW AND RATIONALE FOR ORDER OF JUDGMENT A Whether the Defendants May Operate ATVs on the Subject Easement Central to this case is whether the Defendants’ easement right “to pass and repass to and from the beach area’, as set forth in the June 5, 1963 deed from Eriksson, Trustee to Hosmer (Essex County (South) Registry of Deeds, Book 5079, Page 514) 3, includes the right to drive ATVs, as defined in Mass.Gen.Laws c. 90B, § 26(e) and 323 CMR 3.02, on said casement, or whether such use is prohibited and constitutes an overburdening of the easement and a nuisance. A determination of this issue requires interpretation by this Court of the instrument in question and the applicability of the above-referenced statute and regulation to the instrument and to the uses which the Defendants and their guests and invitees have made of the subject easement. 1 Misuse, Abuse, or Overburdening of Easement — Count] a Burden of Proof As to the nature and permissible extent of the easement, the burden of proof rests upon the Defendants because they are the parties asserting the right to use the subject easement in a particular way, i.e., by driving ATVs over it. See Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990\("The [party] asserting the easement ... [has] the burden of proving its existence."). See also Swensen v. Marino, 306 Mass. 583, 583 (1940); and Leyy v. Reardon, 43 Mass. App.Ct. 3 Bengt Eriksson, Trustee of the Ellis Farm Trust, was the parties’ common predecessor-in-title. By reservation in his deed, Eriksson created the subject easement and conveyed the subject property to the Plaintiff's predeccssor-in-title, Hosmer. Exhibit 1, J 4@)(a)(re: Mazzola property). By deed dated June 15, 1965 (Essex County (South) Registry of Deeds, Book 5277, and Gustav Peterson, co-trustees of the Nosskire Trust, conveyed the Page 706), Eriksson Defendants’ property to the Defendants’ predecessor-in: -title, Eugene N, Siskind, Trustee of the Samson Realty Trust. Exhibit 1, § 4(ii)(re: O’Brien property). 13 431, 434 (1997). “The fact that the [P]laintiff initiated this action does not shift that burden to him.” Foley v. McGonigle, 3 Mass.App.Ct. 746 (1975)(rescript), citing Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 703-704 (1964). b The Plain Language of the Subject Easement Instrument Does Not Permit the Us by the Defendants of ATVs on the Easement The interpretation of a deed is a question of law for the Court. Skye v. Hession, 91 Mass.App.Ct. 423, 425 (2017). Where, as here, an easement is granted or reserved by deed, it is subject to the general rules of deed interpretation. See Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179 (1998). The meaning of an easement created by deed, “derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” White v. Hartigan, 464 Mass. 400, 410- 411 (2013). Thus, the extent of an easement created by deed is fixed by the terms of the conveyance, and the language used is the primary source for the ascertainment of the meaning of the easement. Sheftel, supra, 44 Mass.App.Ct. at 179. A limited right of way and the use thereof cannot be expanded into a general easement greater than that contemplated or intended by the parties to the easement. Socony Mobil Oil Co., Inc. v. Cottle, 336 Mass. 192, 197 (1957). Where “an easement is stated to be for a limited purpose it is limited to the purpose stated.” Comeau vy. Manzelli, 344 Mass. 375, 381 (1962). The Plaintiff's property, as the servient estate, cannot be burdened by the Defendants’ use of the easement to a greater extent than was intended at the time of the original grant in 1963. Doody vy. Spurr, 315 Mass. 129, 133 (1943). Overburdening occurs when the dominant owner exceeds the scope of rights possessed under the easement. Southwick v. Planning Board of Plymouth, 65 Mass.App.Ct, 315, 319 n. 12 (2005). See also Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass.App.C.t 789, 797 (2009)(*The concept of overburdening applies frequently when 14 an easement holder has expanded the use of its easement to the detriment of a servient landowner.”), A use may change over time through normal evolution to satisfy new needs, but variations cannot be substantial; they must be consistent with the general pattern formed by adverse use. Carmel v, Baillargeon, 21 Mass.App.Ct. 426, 431 (1986). In other words, “ mutation is not within the scope of normal development.” Glenn y. Poole, 12 Mass.App.Ct. 292 295 (1981). The subject easement provides the Defendants with the right “to pass and repass to and from the beach area...” By its terms, it is a limited easement and therefore limited to that stated purpose. See Socony Mobil Oil Co., Inc., supra, 336 Mass. at 197, and Comeau, supra, 344 Mass. at 381. “Because the language of the easement is clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Westchester Associates, Inc. v. Boston Edison Co., 47 Mass.App.Ct. 133, 135 (1999). The easement says nothing about vehicles of any kind being permitted on the subject right of way. It is thus limited to the passing and repassing to and from the beach by foot. Socony Mobil Oil Co., Inc., 336 Mass. at 197. Contrast Hodgkins _v. Bianchini, 323 Mass. 169, 172 (1948)(Where easement gave a right to pass to and from a street via a “cart path”, easement’s use was not restricted to horse-drawn vehicles.); Marden v. Mallard Decoy Club, Inc., 361 Mass. 105, 107 (1972)(Where easement language talked of “necessary privileges of passing and repassing to improve their several shares”, together with references to a “causeway” and a “cartway”, the easement permitted the use of motor vehicles.). By the plain language of the subject easement, in light of the facts that it contains no language permitting vehicles of any kind, the Defendants do not have the right to drive any vehicles, including ATVs, on the easement. 15 Mass.Gen.Laws c. 90B, § 26(e) and 323 CMR 3,03(2) Prohibit Use of ATVs on the Easement Because the Defendants Do Not Possess the Requisite Written Authorization Even if the easement instrument gave the Defendants the right to drive vehicles on the easement, that instrument does not and cannot give the Defendants the right to pass with ATVs. That use is prohibited as a matter of law. 4 No person shall operate a “recreation vehicle” 5 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 property; (ii) the operator has in his possession either a document, signed by the owner or lessee of such property or his agent, authorizing the operation of a such [sic] vehicle on the property by the operator or valid proof of current membership in a club, association or other organization to which express authorization for the operation of such vehicles on the property has been granted; provided, however, that such operation shall be consistent with the express authorization granted and any restrictions imposed therewith; or (iii) the owner or lessee of the property has designated the area for use by such vehicles by posting reasonable notice of such designation in a manner approved by the director.” Mass.Gen.Laws c. 90B, § 26(e)(i)-(iii) 7; see also 323 CMR 3.03(2). ® It is undisputed that the Defendants do not 4 The Court has taken judicial notice of Mass.Gen.Laws . 90B, §§ 21 to 35, and 323 CMR §§ 3.01, 3.02, 3.03, and 3.10. 5 A “recreation vehicle” or “off-highway vehicle” is any motor vehicle designed or modified for use over unimproved terrain for recreation or pleasure while not being operated on a public way including, but not limited to, ATVs, recreation utility vehicles, and all registered motor vehicles while not being operated on a public way. Mass.Gen.Laws c. 90B, § 20; and 323 CMR 3.02. 6 The Legislature must have meant to'use the phrase “such a vehicle”, not “a such vehicle”. The Plaintiff hereafter uses the former phrase. 7 The language that now comprises subsection (ce) of Section 26 of the statute was first added to the statute in 1998, via Chapter 362 of the Acts of 1998. Originally, that subsection dealt only The term “recreation vehicle”, as with “snow vehicles”, as defined in Section 20 of the statute. defined in said Section 20 to include ATVs, was added as part of a rewriting of Section 26 in 2010, via Section 13 of Chapter 202 of the Acts of 2010. 8 The applicable regulations also provide that no person shall operate an ATV “within 150 fect of an occupied residence without the permission of the owner, his or her agent or lessee of such 16 own or lease the subject property and it is undisputed that the Plaintiff has not designated the easement for use by ATVs by posting. Therefore, subsections (i) and (iii) of Section 26(e) do not justify the Defendants’ use of the Plaintiff's property for ATV use. Most importantly and pertinent to this case, it is undisputed that the Defendants do not possess a document signed by the Plaintiff authorizing their use of ATVs on the Plaintiff's property. See Testimony of Bonita O’Brien; Exhibit 74; Testimony of Philip Mazzola; Testimony of John O’Brien, Jr. The language of the subject easement instrument does not expressly authorize such use. Accordingly, the Defendants cannot satisfy subsection (ii) of Section 26(e) of Chapter 90B®. A servitude that authorizes a use prohibited by statute or regulation is illegal and unenforceable. See Restatement (Third) of Property (Servitudes) § 3.1, and comment c thereto (2000). Because the Defendants do not possess the requisite signed authorization from the Plaintiff, their use of ATVs on the subject easement is a violation of Mass.Gen.Laws c. 90B, § 26(c)(ii) and 323 CMR 3.03(2)(a)(2), and any past use of that kind was a similar violation. Accordingly, as a matter of law, any purported right to operate ATVs on the residence...”" See 323 CMR 3.03(3). The parties have stipulated that the subject easement, on which the Defendants claim they can operate ATVs, is less than 150 feet from the Plaintiff's dwelling. See Exhibit 1 - Stipulated Facts, 4] 7. It is undisputed that the Defendants do not have the Plaintiff's permission to operate ATVs on the Plaintiff's property, and the use of such vehicles may not be implied from the language of the easement. Accordingly, the operation of ATVs on the easement by the Defendants and their guests and invitees is also in violation of 323 CMR 3.03(3). 9 Areas of the easement where the Defendants have operated ATVs are within 150 feet of the Plaintiff's home. Exhibit 1, J7. In fact, portions are as close as 13 feet from the Plaintiff's home. Exhibit 64, 7. 10 Massachusetts courts have resorted to the Restatement of Property as an, authoritative statement of the common law. See, ¢.g., Kaplan v. Boudreaux, 410 Mass. 435, 440 (1991); Cater v. Bednarek, 462 Mass. 523, 531 (2012); Lowell v. Piper, 31 Mass.App.Ct. 225, 229-230 (1991); Cheever_v. Graves, 32 Mass.App.Ct. 601, 607 (1992); and Kessler_y. Harrington, 84 Mass.App.Ct. 1136 (2014)(unpublished). 17 subject easement is illegal and unenforceable, and the use of such vehicles on the easement by the Defendants, their guests, and their invitees constitutes an overburdening of the easement. The Defendants do not claim a writing specifically authorizing ATV use; they rely only on the general language and nature of the easement to satisfy the provision of 26(e)(ii). Is a document authorizing a general right to use real property of another sufficient under Mass.Gen.Laws c. 90B, §26(e)(ii) to authorize ATV use, as claimed by the Defendants, or does that section require a document that specifically authorizes ATV use as claimed by the Plaintiff? The key word informing the interpretation of subsection (ii) is the word “lessee” found first in subsection (i). '! Absent a posting of land available for ATV use, ATV use on private property is limited to the following operators: (1) the owner of land; (2) the lessee of land; and (3) the possessor of a signed document authorizing the operation of such a vehicle. A lessee is a person in exclusive possession of the property of another under a document, a lease 12, signed by the owner, with a general right to use that real property. If all that is needed under Section 26(c)(ii) is a general right-to-use real estate document, there would be no need of the word “lessee” in Section 26(e)(i). Every lessee would necessarily be in possession of a right-to-use document signed by the owner and, thus satisfying Section 26(e)(ii), have the right to operate an ATV. But the Legislature did not consider Section 26(e)(ii) to contemplate or include a A “statute should be read as a whole to produce an internal consistency.” Singer _v. Friedlander Corp. v. State Lottery Commission, 423 Mass. 562, 565 (1996). Courts “do not read a statute so as to render any of its terms meaningless or superfluous.” Banushi v. Dorfman, 438 Mass. 242, 245 (2002). Words and phrases in a statute will not be deemed to have no force or effect. Milton v. Metropolitan District Commission, 342 Mass. 222, 225 (1961). Courts do not “interpret a statute in such a way as to make a nullity of its provisions if a sensible construction is available.” Com. v. Wallace, 431 Mass. 705, 708 (2000). Finally, courts “must not ignore language or produce an illogical result.”. ROPT Limited Partnership v. Katin, 431 Mass. 601, 603 (2000). to use '2 A lease is “[a] contract by which a rightful possessor of real property conveys the right and occupy that property in exchange for consideration...” Black’s Law Dictionary, Seventh Edition, p. 898 (1999). 18 document authorizing a general right to use real estate. Therefore, because the Legislature did contemplate that one who has the right to exclusive possession and use, such as an owner or lessee, should have the right to operate on that real estate an ATV, the Legislature authorized an 4 owner or lessee to use an ATV on the land he or she has the exclusive right to use pursuant to ti Section 26(e)(i). An interpretation of 26(e)(ii) to mean a lease satisfies the “document” requirement of that section impermissibly treats the word lessee in 26(e)(i) as surplusage. Unless one is an owner or lessee, he or she must have a document specifically authorizing ATV use on the real property of another, in compliance with Section 26(e)(ii). Here, the Defendants are neither owners nor lessees of the subject property. The Defendants have no right to exclusive use of the easement area. They share the right to use the easement area with the Plaintiff and others under a document authorizing the general right to use land of another, a document created nearly 50 years before the Legislature’s limiting where one can operate his or her ATV. '3 The Legislature could have treated, but did not, easement holders the same as lessees by identifying them in Section 26(e)(i). It chose not to do so, a choice which is logical because there is a well-recognized distinction between those with exclusive possessory rights (owners and lessees) and those with lesser rights (easement holders). The Legislature knows how to grant rights to the class of easement holders. See, e.g., Mass.Gen.Laws c. 187, § 5 a 4 (Statute allows an easement holder the right to lay utilities within the easement). 4 Where, as here, the Defendants are easement holders and not lessees, they do not enjoy Section 26(e)(i) status. To contend that an easement document, a document granting rights inferior to those under a lease, gives ATV-operator rights under Section 26(e)(ii) where a lease 134 Jessee’s exclusive right to use real property is the antithesis of what an easement holder possesses, i.¢., a limited, nonpossessory interest in the property. M.P.M. Builders, LLC v. Dwyer, 442 Mass 87, 92:(2004). 19 does not is illogical and wholly unsupported. The Plaintiff has not posted his land authorizing ATV use under Section 26(e)(iii). Thus, none of the exceptions of Section 26(e) being applicable, the Defendants’ use of the Plaintiff's private property for ATV use is prohibited by statute. The Plaintiff's interpretation is wholly consistent with the language of Section 26(e)(ii) which talks of a signed document authorizing the operation of such a vehicle. It is not enough for ATV use under (ii) that one have the right to use the property of another authorizing the use of a vehicle, only such a vehicle, ic, an ATV. There is no dispute that the document authorizing the Defendants to use the Plaintiff's property, assuming it is interpreted to allow any vehicle use, does not authorize the operation of such a vehicle: an ATV. Again, the legislative distinction is logical and a recognition that ATV use is obnoxious, if not dangerous, '4 and use of another’s property by ATV is not to be found by implication, but only by express authorization. Just as the Legislature could have included an easement holder in Section 26(e)(i), but did not, it could have included as a document sufficient to authorize ATV use on land of another an easement giving the operator the general right to pass and repass over land of another. The Legislature did not do so because it did not intend that result. The Plaintiff's interpretation is also wholly consistent with the language of Section 26(e)Gi) which says that.“such operation shall be consistent with the express authorization granted ... » See Section 26(e)(ii)(emphasis added). The Defendants cannot point to any language in the easement which expressly authorizes operation of an ATV. The most the Defendants can argue is that the right to so operate is implicit in the general grant of easement. 4 Hence the regulation that, even where ATV use is expressly authorized, an additional authorization is required to operate an ATV within 150 feet of an occupied residence. See 323 CMR 3.03(3). Any suggestion that the 150 foot restriction can be satisfied by a general easement defies logic. * 20 . The Defendants’ argument of implicit authorization is the antithesis of the statutorily-required “express authorization”. 2. Nuisance — Count Two An easement holder overburdens an easement when he or she expands the use of the easement to the detriment of the servient owner. Cannata, supra, 73 Mass.App.Ct. at 797. Where the dominant owner exceeds the scope of rights possessed under the easement, the easement is overburdened. Southwick, supra, 65 Mass.App.Ct. at 319 n. 12. A nuisance may result from the overburdening of an easement. Westchester Associates, Inc. v. Boston Edison Company, 47 Mass.App.Ct. 133, 135 (1999). As stated above, the Defendants’ operation of ATVs on the subject easement is illegal and unenforceable as a matter of law. Thus, as a matter of law, their use of such vehicles on the easement exceeds the scope of their easement rights and it constitutes an overburdening of the easement and, consequently, a nuisance for which they should be compensated. B. Whether the Extent of the Defendants’ Use of ATVs on the Subject Easement Constitutes an Overburdening of the Easement and Whether Such Overburdening of the Easement Has Created a Nuisance 1. The Extent of Defendants’ Use of ATVs Has Resulted in Overburdening of the Easement The use of ATVs over the easement, particularly over the sandy path portion of the easement, by the Defendants and their guests and invitees has been unreasonable. John O’Brien, Jr.’s use with the Defendants’ permission has been excessive, particularly during the summer of 2017 and Labor Day weekend of 2017. This expansion of easement rights by the Defendants has been to the detriment of the Plaintiff and his family. Appropriate injunctive relief is necessary to protect the Plaintiff's rights and property. 21 . 2. Overburdening of Easement by the Extent of the Defendants’ Use of ATVs Ha Created a Nuisance A nuisance may result from an overly intensive use or an overburdening of an easement by the dominant owner, such that it substantially interferes with the servient owner’s ordinary comfort of human existence, or is substantially detrimental to the reasonable use or value of the servient estate. Westchester Associates, Inc. v. Boston Edison Company, 47 Mass.App.Ct. 133, 135 (1999); Metropoulos v. MacPherson, 241 Mass. 491, 502 (1922). Here, the Court concludes as a matter of law that the use of ATVs on the subject easement by the Defendants and their guests and invitees constitutes an overly intensive use and an overburdening of the easement. That use has substantially interfered with the Plaintiff's (and his family’s) ordinary comfort of human existence and is substantially detrimental to the reasonable use and value of the Plaintiff's property. The Plaintiff and his family have been disturbed by the loud frequent ATV trips by the Defendants, et al., and the Plaintiffs property has sustained physical damage as a result. Moreover, the value of the property to the Plaintiff and his family has been reduced because they cannot use the property to the same extent and in the same manner as they had before the Defendants created a nuisance by the ATV use over the easement. As a result, the Plaintiff has suffered damage in the amount of $ . In addition to an award of damages for the nuisance, appropriate injunctive relief is necessary to abate that nuisance. PROPOSED JUDGMENT The Court: 1 Declares that the subject easement rights possessed by the Defendants are limited to non-motor vehicle travel to and from Coffins Beach; 22 2 Orders that the preliminary injunction entered in this case on or about October 17, . 2017 be made permanent; 3 Orders that the Defendants, their tenants, lessees, lawful invitees, and guests, including, but not limited to, son John O’Brien, Jr. and daughter Wendy Ercolani, and all persons in active concert with them who receive actual notice of this injunction, are hereby permanently prohibited and enjoined from using, idling, operating, and parking motor vehicles of any kind, including, but not limited to, recreation vehicles and all-terrain vehicles (as defined in Mass.Gen.Laws c. 90B, §20), at, across, on, and over any portion of the Plaintiff's property at 17 Wingaersheek Road, Gloucester, Massachusetts, including, but not limited to, that portion of said property burdened by a nominal fifteen foot casement along the northwest boundary of said property from Wingaersheek Road to Coffins Beach; 4 Orders that judgment enter in favor of the Plaintiff and against the Defendants on Count One of the Complaint in the amount of $ , plus interest and costs, and that the injunctive relief stated in (3) above be entered; and 5 Orders that judgment enter in favor of the Plaintiff and against the Defendants on Count II of the Complaint in the amount of $