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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.
JORN F. O'BRIEN, et al.,
Defendants )
PLAINTIFF’S REQUESTED JURY INSTRUCTIONS
Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust (“Plaintiff”), by
and through his attorneys, hereby submits the following proposed instructions to the jury. The Plaintiff
reserves the right to supplement these requested jury instructions prior to the Court’s charge to the jury.
Respeci ly si mitted,
Wil YW. Sheehan, 11], BBO #457060
he - Flannagan, BBO 4564328
Holloway Doherty & Sheehan, P.C.
Center Drive
fady, MA 01960
(978) 774-7123
wshechan@mhdpec.com
tflannagaiy mhdpe.com
Dated: a . 2020
Instruction No. 1
The standard. of proof in a civil case is that a plaintiff must prove his case by a
preponderance of the evidence, This is a less stringent standard than is applied in a criminal
case, where the prosecution must prove its case beyond a reasonable doubt. By contrast, in a
civil case such as this one, the plaintiff is not required to prove his case beyond a reasonable
doubt. In a civil case, the party bearing the burden of proof meets the burden when he shows it
to be true by a preponderance of the evidence. The standard of a preponderance of the evidence
means the greater weight of the evidence. A preponderance of the evidence is such evidence
which, when considered and compared with any opposed to it, has more convincing force and
produces in your minds a belief that what is sought fo be proved is more probably true than not
true.
A proposition is proved by a preponderance of the evidence if, after you have weighed
the evidence, that proposition is made to appear more likely or probable in the sense that there
exists in your minds an actual belief in the truth of that proposition derived from the evidence,
notwithstanding any doubts that may still linger in your minds.
Simply stated, a matter has been proved by a preponderance of the evidence if you
determine, after you have weighed all of the evidence that that matter is more probably true than
not true.
Sargent v, Massachusetts Accident Co., 307 Mass. 246, 250 (1940).
See also Lisbon v. Contributory Ret. App. Bd., 41 Mass.App.Ct. 246 (1996),
Instruction No. 2
Your function as the jury is to determine the facts of this case. You are the sole and
exclusive judges of the facts. You alone determine what evidence to accept, how important any
evidence is that you do accept, and what conclusions to.draw from all the evidence. You must
apply the law as I give it to you to the facts as you determine them to be, in order to decide
whether the plaintiff has proved his case.
You should determine the facts based solely on a fair consideration of the evidence. You
are to be completely fair and impartial, and you are not to be swayed by prejudice or by
sympathy, by personal likes or dislikes, toward either side. You are not to allow yourselves to be
influenced because the claims are popular or unpopular with the public,
You are not to decide this case based on what you may have read or heard outside of this
courtroom, You are not to engage in any guesswork about any unanswered questions that remain
in your mind, or to speculate about what the “real” facts might or might not have been.
You should not consider anything I have said or done during the trial—in ruling on
motions or objections, or in comments to the attorneys, or in questions to witnesses, or in setting
forth the law in these instructions—as any indication of my opinion as to how you should decide
the case. If you believe that I have expressed or hinted at any opinion about the facts of this
case, please disregard it. I have no opinion about the facts or what your verdict ought to be; that
is solely and exclusively your duty and responsibility.
In short, you are to confine your deliberations to the evidence and nothing but the
evidence.
Commonwealth v. Smith, 387 Mass. 900, 909-10 (1983)
Commonwealth v. Fitzgerald, 376 Mass. 402, 424 (1978)
Commonwealth v. Clark, 292 Mass. 409, 411 (1935)
Commonwealth v, Anthes, 5 Gray 185, 197-98 (1855)
Commonwealth v. Carney, 31 Mass.App.Ct. 250, 254, further app. rev. denied, 411 Mass. 1101
(1991)
Commonwealth v. Ward, 28 Mass.App.Ct. 292, 296 (1990)
Insiruction No. 3
There are two types of evidence that you may use to determine the facts of a case: direct
evidence and circumstantial evidence, You have direct evidence where a witness testifies
directly about the fact that is to be proved, based on what he or she claims to have seen or heard
or felt with his or her own senses, and the only question is whether you believe the witness. You
have circumstantial evidence where no witness can testify directly about the fact that is to be
proved, but you are presented with evidence of other facts and then asked to draw reasonable
inferences from them about the fact that is to be proved.
Commonwealth vy. Corriveau, 396 Mass, 319, 339 (1985)(no difference in probative value
between direct and circumstantial evidence).
Commonwealth v. Drayton, 386 Mass, 39, 48 (1982)(physical evidence may be valid
circumstantial evidence if it is authenticated).
Instruction No, 4
An inference is a permissible deduction that you may make from evidence that you have
accepted as believable, Inferences are things you do every day: little steps in reasoning, in which
you take some known information, apply your experience in life to it, and then draw a
conclusion.
You may draw an inference even if it is not necessary or inescapable, so long as it is
reasonable and warranted by the evidence,
Commonwealth y. Niziolek, 380 Mass. 513 (1980), habeas corpus denied sub nom. Niziolek v.
Ashe, 694 F.2d 282 (1st Cir. 1982)
Instruction No. 5
You are to decide what the facts are solely from the evidence admitted in this case, and
not from suspicion or conjecture. The evidence consists of the testimony of witnesses, as you
recall it, any documents or other things that were received into evidence as exhibits, and any fact
on which the lawyers have agreed or which I have told you that you may accept as proved. You
will have all of the exhibits with you in the jury room. You alone will decide the weight—hat is,
the value—that they deserve to receive in helping you make your ultimate judgment about
whether the plaintiff has proved his case. You are not required to believe something simply
because it is written on a piece of paper or appears in a photograph. You are not, of course,
required to disbelieve it because it appears there. Whether to believe what an exhibit purports to
show and how much weight to give the exhibit is entirely for you to decide,
Of course, the quality or strength of the proof is not determined by the sheer volume of
evidence or the number of witnesses or exhibits, It is the weight of the evidence, its strength in
tending to prove the issue at stake, that is important. You might find that a smaller number of
witnesses who testify to a particular fact are more believable than a larger number of witnesses
who testify to the opposite.
Some things that occur during a trial are not evidence.and you may not consider them as
evidence in deciding the facts of this case. A question put to a witness is never evidence; only
the answers are evidence. Also, you may not consider any answer that I struck from the record
and told you to disregard. Do not consider such answers. You may not consider any item that
was marked for identification but was never received in evidence as an exhibit, Anything that
you may have seen or heard when the court was not in session is not evidence.
The opening statements and the closing arguments of the lawyers are not a substitute for
the evidence, They are only intended to assist you in understanding the evidence and the
contentions of the parties. My instructions and anything that I have said in passing during the
trial are not evidence, If your memory of the testimony differs from the attorneys’ or mine, you
are to follow your own recollection,
Consider the evidence as a whole. Do not make up your mind about what the verdict
should be until after you have gone to the jury room to decide the case, and you and your fellow
jurors have discussed the evidence. Keep an open mind until then.
Massachusetts Superior Court Civi t Practice Jury Instructions; § 1.8 (MCLE 1998 & Supp.
2001)
Instruction No. 6
It will be your duty’to decide any disputed questions of fact. You will have to determine
which witnesses to believe, and how much weight to give their testimony. You should give the
testimony of each witness whatever degree of belief and importance that you judge it is fairly
entitled to receive. You are the sole judges of the credibility of the witnesses, and if there are any
conflicts in the testimony, it is your function to resolve those conflicts and to determine where
the truth lies.
Lupia v. Marino, 353 Mass. 749, 749 (1967) (rescript opinion)
Commonwealth v. Sabean, 275 Mass, 546, 550 (1931)
Commonweatth v, Bishop, 9 Mass.App.Ct. 468, 471 (1980),
Instruction No. 7
You may believe everything a witness says, or only part of it or none of it. Lf you do not
believe a witness’s testimony that something happened, of course your disbelief is not evidence
that it did zof happen. When you disbelieve a witness, it just means that you have to look
elsewhere for credible evidence about that issue,
Commonwealth y. Clary, 388 Mass. 583, 589 (1983)
Commonwealth y, Dabrieo, 370 Mass. 728, 734 (1976)
Rintone v. Mass. Bay Transp. Auth., 3 Mass. App.Ct. 759, 759 (1975) (rescript) (citing Garland v.
Stetson, 292 Mass. 95, 97-98 (1935)).
Commorwealth v. Fitzgerald, 376 Mass. 402, 411 (1978).
Instruction No. 8
In deciding whether to believe a witness and how much importance to give a witness’s
testimony, you must look at all the evidence, drawing on your own common sense and
experience of life. Often it may not be what a witness says, but Aow he or she says it that might
give you a clue whether or not to accept his or her version of an event as believable. You may
consider a witness’s character, his or her appearance and demeanor on the witness stand, his or
her frankness or lack of frankness in testifying, whether his or her testimony is reasonable or
unreasonable, probable or improbable, You may take into account how good an opportunity he
or she had to observe the facts about which he or she testifies, the degree of intelligence he or she
shows, and whether his or her memory seems accurate,
.
Commonwealth y, Widrick, 392 Mass. 884, 888 (1984).
See Commonwealth v. Coleman, 390 Mass. 797, 802 (1984),
Commonwealth v. A Juvenile, 21 Mass.App.Ct. 121, 124 & n.5 (1985).
Instruction No. 9
When you evaluate how reliable a witness’s testimony is, you may take into account
whether that witness made an earlier statement that differs in any significant way from his or her
present testimony at trial. It is for you to say how significant any difference is. The earlier
statement is nof itself evidence of any fact that is mentioned in it.
To repeat, if a witness’s earlier statement is not consistent with his or her present
testimony, you may take, that into account when you determine how much belief to give that
witness’s present testimony from. the witness stand, The prior statement is relevant only as to the
witness’s credibility, and you may not take it as proof of any fact contained in it,
Commonwealth v. Repoza, 382 Mass. 119, 131 (1980)
Commonwealth v. Paradiso, 368 Mass. 205, 208 n.2 (1975)
Commonwealth y. Bailey, 12 Mass.App.Ct. 104, 106 02 (1981).
10
Instruction No. 10
You must not discuss the case with anyone, even with your fellow jurors, until all of the
evidence has been presented, the final arguments have been made and I have instructed you on
applicable law and the case is submitted to you. After it is submitted to you, you may discuss it
only in the jury room with your fellow jurors, It is important that you keep an open mind and not
decide any issue in the case until the entire case has been submitted to you.
Massachuseits Superior Court Civil Practice Jury Instructions, § 1.6 (MCLE 1998 & Supp.
2001)
I
Instructiori No. 11
During this trial, it is the duty of the attorneys to object to evidence that may not be
admissible under our rules of evidence. If I “sustain” an objection — that is, I do not allow the
witness to answer — you are to disregard that question and you must not wonder or guess about
what the answer might have been. An unanswered question is not evidence.
12
Instruction No. 12
The attorneys in this case have the responsibility of objecting when they believe that the
other side is trying to or has introduced evidence which is not admissible under the rules of
evidence. At times, when they ask to speak with me at the Judge’s bench, I make rulings about
questions‘or law, which I am supposed to do out of your hearing, The objections and rulings are
necessary to make sure that what you hear is relevant to this case and that the evidence presented
to you is reliable. You may not draw any favorable or unfavorable inferences to either the
attorneys or the parties that they represent as a result of an attorney making objection or asking
me for ruling.
13
Instruction No. 13
At times during this trial, I have ordered that testimony or evidence be stricken from the
record, When I have so ordered, the testimony or item is no longer evidence. Since it is no
longer evidence, you must disregard it. 1 realize that it is difficult for you to ignore something
that you have heard or seen. However, the purpose of the rules of evidence is to make sure that
all of the evidence that is presented to you is in a reliable form so that you are in a fair position to
be able to assess its truth. If] exclude something from evidence or if strike something from the
record, it is only because it would be unreliable or misleading for you to rely on it in that form.
You are therefore to remove the testimony or evidence from your consideration when you decide
this case. It is your sworn duty not to consider information that has been stricken from the
record in deciding this case.
See generally, Charrow and Charrow, “Making Legal Language Understandable: A
Psycholinguistic Study of Jury Instructions”, 79 Colum.L.Rev. 1306, 1344-1345 (1979).
14
Instruction No. 14
You cannot consider anything I have done or said throughout the course of this trial when
making rulings or comments or posing questions’ to the witness or even in giving you these
instructions as any indication of my opinion about the case. If anything I have said or done has
given you the impression that I have any opinion about the facts of this case, please disregard
whatever it is that has given you the impression that I am of one opinion or another. The facts
and the verdict are exclusively your duty and responsibility. Your assessment of the facts and
your ultimate verdict must only be confined to the evidence which has been 1 presented to you and
the [aw on which I have instructed you.
Model Jury Instructions For Use In The District Court, Instruction No. 2.02 (1988)
Commonwealth y. Clark, 292 Mass. 409, 411, 198 NLE. 641, 643 (1935).
15
Instruction No, 15
It is my job to instruct you on the law before you begin to deliberate about the facts of
this case. I am here to make sure that this trial is conducted fairly and in-accordance with the
rules of procedure and evidence. Another of my responsibilities is to make rulings with regards
to the law that applies to this case, You as jurors must accept the law as I state it to you. When
deliberating, you must take into account all of my instructions in their entirety and should not
ignore any or concentrate on just a few of them. Regardless of whether you agree with the way |
have stated the Jaw or not, your decision must be based upon the law as I give it to you.
Model Jury Instructions For Use In The District Court, Instruction 2.01 (1988).
Commonwealth v, Wilson, 381 Mass, 90, 118-119, 407 N.E. 2d 1229, 1247 (1980).
Commonwealth v. Brady, 357 Mass, 213, 214-215, 257 N.B. 2d 465, 466 (1970).
16
Instruction No, 16
An easement is a limited, nonpossessory interest in realty. An easement creates a
nonpossessory right.to enter and use land in the possessionof another and obligates. the
landowner not to interfere with the uses authorized by the easement,
MPM. Builders, LLC v. Dwyer, 442 Mass 87, 92 (2004)
Restatement (Third) of Property (Servitudes) §1.2 (2000)
17
Instruction No. 17
The servient estate is the estate that is burdened by an easement. In this case, the servient
estate is the Plaintiff's property, and the Plaintiff is the servient owner.
Black's Law Dictionary, Seventh ed. (1999), p, 569.
The dominate estate is the estate that benefits from an casement. In this case, the
dominant estate is the Defendants’ property, and the Defendants are the dominant owners.
Black's Law Dictionary, Seventh ed, (1999), p. 567.
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Instruction No. 18
Where, as here, an easement is created by deed, every right necessary for its enjoyment is
included by implication. .
The extent of the easement is still regulated, however, by the intent of the parties as
manifested by the language used in the deed.
Commercial Wharf East Condominium Association v, Waterfront Parking Corp., 407 Mass. 123,
138 (1990)
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Instruction No. 19
Where, as here, an easement is granted in a deed, it is subject to the general rules of deed
interpretation, The basic principal governing the interpretation of deeds is that their meaning,
derived from the presumed intent of the grantor, is to be ascertained from the words used in the
deed, construed when necessary in the light of the attendant circumstances. Thus, the extent of
an easement depends on the circumstances of its creation.
Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179 (1998)
Mugar v. Massachusetts Bay Transportation Authority., 28 Mass.App.Ct. 443, 444 (1990)
JS. Lang Eng'g Co. v. Wilkins Potter Press, 246 Mass, 529, 532 (1923)
In considering the attendant circumstances, you must focus on the time of creation of the
easement,
Bergh v. Hines, 44 Mass.App.Ct. 590, 592 (1998)
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Instruction No. 20
A limited right of way and the use thereof cannot be extended 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 (1987).
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Instruction No. 21
A right to pass and repass does not include a right to park vehicles.
Opinion of the Justices, 297 Mass. 559, 562 (1937).
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Instruction No. 22
As the parties asserting an easement over the Plaintiff's property, the Defendants have the
burden of proving the nature and extent of their easement. The fact that the Plaintiff initiated this
action does not shift that burden to him.
Swensen v, Marino, 306 Mass. 582, 583 (1940)
Foley v. MeGonigle, 3 Mass.App.Ct. 746 (1975)(rescript)
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Instruction No. 23
An easement holder (i.e., the dominant owner) overburdens an easement when he or she
expands the use of the easement to the detriment of the servient owner. Overburdening occurs
when the dominant owner exceeds the scope of rights possessed under the subject easement.
Cannata v. Berkshire Nat. Res. Council, Inc., 73 Mass,App.Ct. 789, 797 (2009)
Southwick v, Planning Board of Plymouth, 65 Mass.App.Ct, 315, 319 1.12 (2005)
The servient estate (i.e., the Plaintiff's property) cannot be burdened by the Defendants’
use of the easement to a greater extent than was contemplated or intended at the time of the
grant,
Doody v. Spur, 315 Mass. 129, 133 (1943)
In the law of casements, a mutation of use by the dominant owner is not within the scope
of normal development. .
Glenn v. Poole, 12 Mass.App.Ct. 292, 295 (1981)
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Instruction No. 24
No person shall“operate” a “recreation vehicle” on privately-owned property unless:
®@ the operator is the owner or lessee or an immediate family member of the owner or
lessee of the property;
Gi 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 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 by
posting reasonable notice of such designation.
Mass, Gen Laws ¢. 90B, §26(e); and 323 CMR 3.03 (2)
No person shall “operate” a “recreation vehicle” in a manner that causes damage to public or
private property.
Mass. Gen.Laws c. 90B, §26(f); and 323 CMR 3.03(7)
Whoever violates Mass.Gen.Laws c, 90B, §26(¢) or §26(£) shall be punished by a fine of not less
than $250 nor more than $1,000.
Mass.Gen.Laws o. 90B, §34; and 323 CMR 3.10
No person shall “operate” a “recreational vehicle” within 150 feet of an occupied residence
without the permission of the owner, his or her agent or lessee of such residence, except in cases
of emergency, when directly departing or returning to such residence, or when operating on the
property for another for which permission has been granted.
323 CMR 3.03(3)
’ A violation of 323 CMR 3,03 is deemed a violation of Mass.Gen.Laws c. 90B, §26.
323 CMR 3,10.
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Instruction No. 25
To “operate” a recreation vehicle means to ride in or on and control the operation of a
“recreation vehicle”.
Mass. Gen.Laws c, 90B, §20; and 323 CMR 3,02
A “recreation vehicle” or “ofthighway 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, “all-terrain vehicles 2 , ‘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
An “all-terrain vehicle” is a motorized recreational vehicle designed or modified for
travel on 4 low pressure tires and having a seat designed to be straddled by the operator and
handlebars for steering control.
Mass.Gen.Laws c. 90B, §20; and 323 CMR 3.02
A “recreation utility vehicle” or “utility vehicle” is a motorized flotation tire vehicle with
not less than 4 and not more than 6 low pressure tires that is limited in engine displacement to
less than 1,500 cubic centimeters and limited in total dry weight to not more than 1,800 pounds
and that has a seat that is of bench design, not intended to be straddled by the operator, and a
steering wheel for control.
Mass. Gen.Laws oc, 90B, §20; and 323 CMR 3.02
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Instruction No, 26
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.C. 133, 135 (1999)
Metropoulos v. MacPherson, 241 Mass. 491, 502 (1922)
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Instruction No. 27
A trespass equates to wrongful entry. To support an action of trespass, the Plaintiff must
prove (1) that he possesses the real property in question, and (2) an illegal entry by the
Defendants.
Dilbert v. Hanover Ins. Co., 63 Mass,App.Ct. 327, 333 (2005)
Brice Estates, Inc. v. Smith, 76 Mass.App.Ct. 394, 396 n, 3 (2010)
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Instruction No. 28
The law requires that you calculate damages within a reasonable degree of certainty. In
détermining the extent of damage sustained by the Plaintiff as a result of the acts of the
Defendants and their guests and invitees, you should arrive at a figure supported by the evidence
and by inferences drawn from the evidence.
S. Williston Contracts § 805 (3d Ed. 1961)
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Instruction No. 29
A mathematical certainty in measuring damages is not a prerequisite for recovery.
Indeed, the extent of damages often must be left to estimate and judgment.
Romboia v. Cosindas, 351 Mass. 382 (1966)
Snelling & Snelling of Mass., inc. v. Wall, 345 Mass. 634 (1963)
Whitespot Constr, Corp. v. Jetspray Cooler, Inc., 344 Mass. 632 (1962).
Edim, inc. y. Mutlen, 47 Mass.App.Ct. 125, review denied 430 Mass. 1105 (1999).
30
CERTIFICATE OF SERVIC!
I, Thomas J. Flannagan, attorney for the Plaintiff, hereby certify that on 2020, 1 caused a
copy of the above document to be served upon the following attorney by mailing the sime, first class mail, postage
prepaid, and by electronic mail:
Meredith A. Fine, Esq.
Law Office of Meredith A. Fine
46 Middle Street, Suite 2
Gloucester, MA 01930
Thomag J. labnagan
Preview
S a 0) 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. JORN F. O'BRIEN, et al., Defendants ) PLAINTIFF’S REQUESTED JURY INSTRUCTIONS Plaintiff Philip J. Mazzola, Trustee of the Seventeen Wingaersheek Realty Trust (“Plaintiff”), by and through his attorneys, hereby submits the following proposed instructions to the jury. The Plaintiff reserves the right to supplement these requested jury instructions prior to the Court’s charge to the jury. Respeci ly si mitted, Wil YW. Sheehan, 11], BBO #457060 he - Flannagan, BBO 4564328 Holloway Doherty & Sheehan, P.C. Center Drive fady, MA 01960 (978) 774-7123 wshechan@mhdpec.com tflannagaiy mhdpe.com Dated: a . 2020 Instruction No. 1 The standard. of proof in a civil case is that a plaintiff must prove his case by a preponderance of the evidence, This is a less stringent standard than is applied in a criminal case, where the prosecution must prove its case beyond a reasonable doubt. By contrast, in a civil case such as this one, the plaintiff is not required to prove his case beyond a reasonable doubt. In a civil case, the party bearing the burden of proof meets the burden when he shows it to be true by a preponderance of the evidence. The standard of a preponderance of the evidence means the greater weight of the evidence. A preponderance of the evidence is such evidence which, when considered and compared with any opposed to it, has more convincing force and produces in your minds a belief that what is sought fo be proved is more probably true than not true. A proposition is proved by a preponderance of the evidence if, after you have weighed the evidence, that proposition is made to appear more likely or probable in the sense that there exists in your minds an actual belief in the truth of that proposition derived from the evidence, notwithstanding any doubts that may still linger in your minds. Simply stated, a matter has been proved by a preponderance of the evidence if you determine, after you have weighed all of the evidence that that matter is more probably true than not true. Sargent v, Massachusetts Accident Co., 307 Mass. 246, 250 (1940). See also Lisbon v. Contributory Ret. App. Bd., 41 Mass.App.Ct. 246 (1996), Instruction No. 2 Your function as the jury is to determine the facts of this case. You are the sole and exclusive judges of the facts. You alone determine what evidence to accept, how important any evidence is that you do accept, and what conclusions to.draw from all the evidence. You must apply the law as I give it to you to the facts as you determine them to be, in order to decide whether the plaintiff has proved his case. You should determine the facts based solely on a fair consideration of the evidence. You are to be completely fair and impartial, and you are not to be swayed by prejudice or by sympathy, by personal likes or dislikes, toward either side. You are not to allow yourselves to be influenced because the claims are popular or unpopular with the public, You are not to decide this case based on what you may have read or heard outside of this courtroom, You are not to engage in any guesswork about any unanswered questions that remain in your mind, or to speculate about what the “real” facts might or might not have been. You should not consider anything I have said or done during the trial—in ruling on motions or objections, or in comments to the attorneys, or in questions to witnesses, or in setting forth the law in these instructions—as any indication of my opinion as to how you should decide the case. If you believe that I have expressed or hinted at any opinion about the facts of this case, please disregard it. I have no opinion about the facts or what your verdict ought to be; that is solely and exclusively your duty and responsibility. In short, you are to confine your deliberations to the evidence and nothing but the evidence. Commonwealth v. Smith, 387 Mass. 900, 909-10 (1983) Commonwealth v. Fitzgerald, 376 Mass. 402, 424 (1978) Commonwealth v. Clark, 292 Mass. 409, 411 (1935) Commonwealth v, Anthes, 5 Gray 185, 197-98 (1855) Commonwealth v. Carney, 31 Mass.App.Ct. 250, 254, further app. rev. denied, 411 Mass. 1101 (1991) Commonwealth v. Ward, 28 Mass.App.Ct. 292, 296 (1990) Insiruction No. 3 There are two types of evidence that you may use to determine the facts of a case: direct evidence and circumstantial evidence, You have direct evidence where a witness testifies directly about the fact that is to be proved, based on what he or she claims to have seen or heard or felt with his or her own senses, and the only question is whether you believe the witness. You have circumstantial evidence where no witness can testify directly about the fact that is to be proved, but you are presented with evidence of other facts and then asked to draw reasonable inferences from them about the fact that is to be proved. Commonwealth vy. Corriveau, 396 Mass, 319, 339 (1985)(no difference in probative value between direct and circumstantial evidence). Commonwealth v. Drayton, 386 Mass, 39, 48 (1982)(physical evidence may be valid circumstantial evidence if it is authenticated). Instruction No, 4 An inference is a permissible deduction that you may make from evidence that you have accepted as believable, Inferences are things you do every day: little steps in reasoning, in which you take some known information, apply your experience in life to it, and then draw a conclusion. You may draw an inference even if it is not necessary or inescapable, so long as it is reasonable and warranted by the evidence, Commonwealth y. Niziolek, 380 Mass. 513 (1980), habeas corpus denied sub nom. Niziolek v. Ashe, 694 F.2d 282 (1st Cir. 1982) Instruction No. 5 You are to decide what the facts are solely from the evidence admitted in this case, and not from suspicion or conjecture. The evidence consists of the testimony of witnesses, as you recall it, any documents or other things that were received into evidence as exhibits, and any fact on which the lawyers have agreed or which I have told you that you may accept as proved. You will have all of the exhibits with you in the jury room. You alone will decide the weight—hat is, the value—that they deserve to receive in helping you make your ultimate judgment about whether the plaintiff has proved his case. You are not required to believe something simply because it is written on a piece of paper or appears in a photograph. You are not, of course, required to disbelieve it because it appears there. Whether to believe what an exhibit purports to show and how much weight to give the exhibit is entirely for you to decide, Of course, the quality or strength of the proof is not determined by the sheer volume of evidence or the number of witnesses or exhibits, It is the weight of the evidence, its strength in tending to prove the issue at stake, that is important. You might find that a smaller number of witnesses who testify to a particular fact are more believable than a larger number of witnesses who testify to the opposite. Some things that occur during a trial are not evidence.and you may not consider them as evidence in deciding the facts of this case. A question put to a witness is never evidence; only the answers are evidence. Also, you may not consider any answer that I struck from the record and told you to disregard. Do not consider such answers. You may not consider any item that was marked for identification but was never received in evidence as an exhibit, Anything that you may have seen or heard when the court was not in session is not evidence. The opening statements and the closing arguments of the lawyers are not a substitute for the evidence, They are only intended to assist you in understanding the evidence and the contentions of the parties. My instructions and anything that I have said in passing during the trial are not evidence, If your memory of the testimony differs from the attorneys’ or mine, you are to follow your own recollection, Consider the evidence as a whole. Do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case, and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Massachusetts Superior Court Civi t Practice Jury Instructions; § 1.8 (MCLE 1998 & Supp. 2001) Instruction No. 6 It will be your duty’to decide any disputed questions of fact. You will have to determine which witnesses to believe, and how much weight to give their testimony. You should give the testimony of each witness whatever degree of belief and importance that you judge it is fairly entitled to receive. You are the sole judges of the credibility of the witnesses, and if there are any conflicts in the testimony, it is your function to resolve those conflicts and to determine where the truth lies. Lupia v. Marino, 353 Mass. 749, 749 (1967) (rescript opinion) Commonwealth v. Sabean, 275 Mass, 546, 550 (1931) Commonweatth v, Bishop, 9 Mass.App.Ct. 468, 471 (1980), Instruction No. 7 You may believe everything a witness says, or only part of it or none of it. Lf you do not believe a witness’s testimony that something happened, of course your disbelief is not evidence that it did zof happen. When you disbelieve a witness, it just means that you have to look elsewhere for credible evidence about that issue, Commonwealth y. Clary, 388 Mass. 583, 589 (1983) Commonwealth y, Dabrieo, 370 Mass. 728, 734 (1976) Rintone v. Mass. Bay Transp. Auth., 3 Mass. App.Ct. 759, 759 (1975) (rescript) (citing Garland v. Stetson, 292 Mass. 95, 97-98 (1935)). Commorwealth v. Fitzgerald, 376 Mass. 402, 411 (1978). Instruction No. 8 In deciding whether to believe a witness and how much importance to give a witness’s testimony, you must look at all the evidence, drawing on your own common sense and experience of life. Often it may not be what a witness says, but Aow he or she says it that might give you a clue whether or not to accept his or her version of an event as believable. You may consider a witness’s character, his or her appearance and demeanor on the witness stand, his or her frankness or lack of frankness in testifying, whether his or her testimony is reasonable or unreasonable, probable or improbable, You may take into account how good an opportunity he or she had to observe the facts about which he or she testifies, the degree of intelligence he or she shows, and whether his or her memory seems accurate, . Commonwealth y, Widrick, 392 Mass. 884, 888 (1984). See Commonwealth v. Coleman, 390 Mass. 797, 802 (1984), Commonwealth v. A Juvenile, 21 Mass.App.Ct. 121, 124 & n.5 (1985). Instruction No. 9 When you evaluate how reliable a witness’s testimony is, you may take into account whether that witness made an earlier statement that differs in any significant way from his or her present testimony at trial. It is for you to say how significant any difference is. The earlier statement is nof itself evidence of any fact that is mentioned in it. To repeat, if a witness’s earlier statement is not consistent with his or her present testimony, you may take, that into account when you determine how much belief to give that witness’s present testimony from. the witness stand, The prior statement is relevant only as to the witness’s credibility, and you may not take it as proof of any fact contained in it, Commonwealth v. Repoza, 382 Mass. 119, 131 (1980) Commonwealth v. Paradiso, 368 Mass. 205, 208 n.2 (1975) Commonwealth y. Bailey, 12 Mass.App.Ct. 104, 106 02 (1981). 10 Instruction No. 10 You must not discuss the case with anyone, even with your fellow jurors, until all of the evidence has been presented, the final arguments have been made and I have instructed you on applicable law and the case is submitted to you. After it is submitted to you, you may discuss it only in the jury room with your fellow jurors, It is important that you keep an open mind and not decide any issue in the case until the entire case has been submitted to you. Massachuseits Superior Court Civil Practice Jury Instructions, § 1.6 (MCLE 1998 & Supp. 2001) I Instructiori No. 11 During this trial, it is the duty of the attorneys to object to evidence that may not be admissible under our rules of evidence. If I “sustain” an objection — that is, I do not allow the witness to answer — you are to disregard that question and you must not wonder or guess about what the answer might have been. An unanswered question is not evidence. 12 Instruction No. 12 The attorneys in this case have the responsibility of objecting when they believe that the other side is trying to or has introduced evidence which is not admissible under the rules of evidence. At times, when they ask to speak with me at the Judge’s bench, I make rulings about questions‘or law, which I am supposed to do out of your hearing, The objections and rulings are necessary to make sure that what you hear is relevant to this case and that the evidence presented to you is reliable. You may not draw any favorable or unfavorable inferences to either the attorneys or the parties that they represent as a result of an attorney making objection or asking me for ruling. 13 Instruction No. 13 At times during this trial, I have ordered that testimony or evidence be stricken from the record, When I have so ordered, the testimony or item is no longer evidence. Since it is no longer evidence, you must disregard it. 1 realize that it is difficult for you to ignore something that you have heard or seen. However, the purpose of the rules of evidence is to make sure that all of the evidence that is presented to you is in a reliable form so that you are in a fair position to be able to assess its truth. If] exclude something from evidence or if strike something from the record, it is only because it would be unreliable or misleading for you to rely on it in that form. You are therefore to remove the testimony or evidence from your consideration when you decide this case. It is your sworn duty not to consider information that has been stricken from the record in deciding this case. See generally, Charrow and Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions”, 79 Colum.L.Rev. 1306, 1344-1345 (1979). 14 Instruction No. 14 You cannot consider anything I have done or said throughout the course of this trial when making rulings or comments or posing questions’ to the witness or even in giving you these instructions as any indication of my opinion about the case. If anything I have said or done has given you the impression that I have any opinion about the facts of this case, please disregard whatever it is that has given you the impression that I am of one opinion or another. The facts and the verdict are exclusively your duty and responsibility. Your assessment of the facts and your ultimate verdict must only be confined to the evidence which has been 1 presented to you and the [aw on which I have instructed you. Model Jury Instructions For Use In The District Court, Instruction No. 2.02 (1988) Commonwealth y. Clark, 292 Mass. 409, 411, 198 NLE. 641, 643 (1935). 15 Instruction No, 15 It is my job to instruct you on the law before you begin to deliberate about the facts of this case. I am here to make sure that this trial is conducted fairly and in-accordance with the rules of procedure and evidence. Another of my responsibilities is to make rulings with regards to the law that applies to this case, You as jurors must accept the law as I state it to you. When deliberating, you must take into account all of my instructions in their entirety and should not ignore any or concentrate on just a few of them. Regardless of whether you agree with the way | have stated the Jaw or not, your decision must be based upon the law as I give it to you. Model Jury Instructions For Use In The District Court, Instruction 2.01 (1988). Commonwealth v, Wilson, 381 Mass, 90, 118-119, 407 N.E. 2d 1229, 1247 (1980). Commonwealth v. Brady, 357 Mass, 213, 214-215, 257 N.B. 2d 465, 466 (1970). 16 Instruction No, 16 An easement is a limited, nonpossessory interest in realty. An easement creates a nonpossessory right.to enter and use land in the possessionof another and obligates. the landowner not to interfere with the uses authorized by the easement, MPM. Builders, LLC v. Dwyer, 442 Mass 87, 92 (2004) Restatement (Third) of Property (Servitudes) §1.2 (2000) 17 Instruction No. 17 The servient estate is the estate that is burdened by an easement. In this case, the servient estate is the Plaintiff's property, and the Plaintiff is the servient owner. Black's Law Dictionary, Seventh ed. (1999), p, 569. The dominate estate is the estate that benefits from an casement. In this case, the dominant estate is the Defendants’ property, and the Defendants are the dominant owners. Black's Law Dictionary, Seventh ed, (1999), p. 567. 18 Instruction No. 18 Where, as here, an easement is created by deed, every right necessary for its enjoyment is included by implication. . The extent of the easement is still regulated, however, by the intent of the parties as manifested by the language used in the deed. Commercial Wharf East Condominium Association v, Waterfront Parking Corp., 407 Mass. 123, 138 (1990) 19 Instruction No. 19 Where, as here, an easement is granted in a deed, it is subject to the general rules of deed interpretation, The basic principal governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the deed, construed when necessary in the light of the attendant circumstances. Thus, the extent of an easement depends on the circumstances of its creation. Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179 (1998) Mugar v. Massachusetts Bay Transportation Authority., 28 Mass.App.Ct. 443, 444 (1990) JS. Lang Eng'g Co. v. Wilkins Potter Press, 246 Mass, 529, 532 (1923) In considering the attendant circumstances, you must focus on the time of creation of the easement, Bergh v. Hines, 44 Mass.App.Ct. 590, 592 (1998) 20 Instruction No. 20 A limited right of way and the use thereof cannot be extended 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 (1987). 21 Instruction No. 21 A right to pass and repass does not include a right to park vehicles. Opinion of the Justices, 297 Mass. 559, 562 (1937). 22 Instruction No. 22 As the parties asserting an easement over the Plaintiff's property, the Defendants have the burden of proving the nature and extent of their easement. The fact that the Plaintiff initiated this action does not shift that burden to him. Swensen v, Marino, 306 Mass. 582, 583 (1940) Foley v. MeGonigle, 3 Mass.App.Ct. 746 (1975)(rescript) 23 Instruction No. 23 An easement holder (i.e., the dominant owner) overburdens an easement when he or she expands the use of the easement to the detriment of the servient owner. Overburdening occurs when the dominant owner exceeds the scope of rights possessed under the subject easement. Cannata v. Berkshire Nat. Res. Council, Inc., 73 Mass,App.Ct. 789, 797 (2009) Southwick v, Planning Board of Plymouth, 65 Mass.App.Ct, 315, 319 1.12 (2005) The servient estate (i.e., the Plaintiff's property) cannot be burdened by the Defendants’ use of the easement to a greater extent than was contemplated or intended at the time of the grant, Doody v. Spur, 315 Mass. 129, 133 (1943) In the law of casements, a mutation of use by the dominant owner is not within the scope of normal development. . Glenn v. Poole, 12 Mass.App.Ct. 292, 295 (1981) 24 Instruction No. 24 No person shall“operate” a “recreation vehicle” on privately-owned property unless: ®@ the operator is the owner or lessee or an immediate family member of the owner or lessee of the property; Gi 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 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 by posting reasonable notice of such designation. Mass, Gen Laws ¢. 90B, §26(e); and 323 CMR 3.03 (2) No person shall “operate” a “recreation vehicle” in a manner that causes damage to public or private property. Mass. Gen.Laws c. 90B, §26(f); and 323 CMR 3.03(7) Whoever violates Mass.Gen.Laws c, 90B, §26(¢) or §26(£) shall be punished by a fine of not less than $250 nor more than $1,000. Mass.Gen.Laws o. 90B, §34; and 323 CMR 3.10 No person shall “operate” a “recreational vehicle” within 150 feet of an occupied residence without the permission of the owner, his or her agent or lessee of such residence, except in cases of emergency, when directly departing or returning to such residence, or when operating on the property for another for which permission has been granted. 323 CMR 3.03(3) ’ A violation of 323 CMR 3,03 is deemed a violation of Mass.Gen.Laws c. 90B, §26. 323 CMR 3,10. 25 Instruction No. 25 To “operate” a recreation vehicle means to ride in or on and control the operation of a “recreation vehicle”. Mass. Gen.Laws c, 90B, §20; and 323 CMR 3,02 A “recreation vehicle” or “ofthighway 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, “all-terrain vehicles 2 , ‘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 An “all-terrain vehicle” is a motorized recreational vehicle designed or modified for travel on 4 low pressure tires and having a seat designed to be straddled by the operator and handlebars for steering control. Mass.Gen.Laws c. 90B, §20; and 323 CMR 3.02 A “recreation utility vehicle” or “utility vehicle” is a motorized flotation tire vehicle with not less than 4 and not more than 6 low pressure tires that is limited in engine displacement to less than 1,500 cubic centimeters and limited in total dry weight to not more than 1,800 pounds and that has a seat that is of bench design, not intended to be straddled by the operator, and a steering wheel for control. Mass. Gen.Laws oc, 90B, §20; and 323 CMR 3.02 26 Instruction No, 26 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.C. 133, 135 (1999) Metropoulos v. MacPherson, 241 Mass. 491, 502 (1922) 27 Instruction No. 27 A trespass equates to wrongful entry. To support an action of trespass, the Plaintiff must prove (1) that he possesses the real property in question, and (2) an illegal entry by the Defendants. Dilbert v. Hanover Ins. Co., 63 Mass,App.Ct. 327, 333 (2005) Brice Estates, Inc. v. Smith, 76 Mass.App.Ct. 394, 396 n, 3 (2010) 28 Instruction No. 28 The law requires that you calculate damages within a reasonable degree of certainty. In détermining the extent of damage sustained by the Plaintiff as a result of the acts of the Defendants and their guests and invitees, you should arrive at a figure supported by the evidence and by inferences drawn from the evidence. S. Williston Contracts § 805 (3d Ed. 1961) 29 Instruction No. 29 A mathematical certainty in measuring damages is not a prerequisite for recovery. Indeed, the extent of damages often must be left to estimate and judgment. Romboia v. Cosindas, 351 Mass. 382 (1966) Snelling & Snelling of Mass., inc. v. Wall, 345 Mass. 634 (1963) Whitespot Constr, Corp. v. Jetspray Cooler, Inc., 344 Mass. 632 (1962). Edim, inc. y. Mutlen, 47 Mass.App.Ct. 125, review denied 430 Mass. 1105 (1999). 30 CERTIFICATE OF SERVIC! I, Thomas J. Flannagan, attorney for the Plaintiff, hereby certify that on 2020, 1 caused a copy of the above document to be served upon the following attorney by mailing the sime, first class mail, postage prepaid, and by electronic mail: Meredith A. Fine, Esq. Law Office of Meredith A. Fine 46 Middle Street, Suite 2 Gloucester, MA 01930 Thomag J. labnagan