Hamouda v. Harris

845 N.E.2d 374, 66 Mass. App. Ct. 22, 2006 Mass. App. LEXIS 385
CourtMassachusetts Appeals Court
DecidedApril 6, 2006
DocketNo. 05-P-79
StatusPublished
Cited by14 cases

This text of 845 N.E.2d 374 (Hamouda v. Harris) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamouda v. Harris, 845 N.E.2d 374, 66 Mass. App. Ct. 22, 2006 Mass. App. LEXIS 385 (Mass. Ct. App. 2006).

Opinion

Mills, J.

In a dispute between two neighbors in Cambridge over the continued existence and permissible extent of use of a driveway easement, a judge of the Land Court ruled that the easement had not been extinguished, and that it was created to benefit an entire lot and was not limited to the particular purpose of gaining access to a garage.

1. The facts. The plaintiff, Omar F. Hamouda, owns a lot containing 2,911 square feet, on Third Street in Cambridge. A dwelling and garage are located on his lot (Hamouda lot). The defendant, Mary Harris, owns an adjoining lot containing 2,649 square feet, improved by a building which is used for commercial office purposes (Harris lot). The lots are shown on an [23]*23appended sketch that contains the essential details of a “Plan Showing Easement for Driveway,” dated April 10, 1954 (plan). See Appendix.

In 1954, both lots were owned by Alice E. McElroy, each supporting a two-family dwelling and a two-bay garage. McElroy conveyed both properties as part of a single transaction. The Harris lot was originally deeded to Emily Campbell, and the Hamouda lot to William J. Kervick and Mary J. Kervick. The following descriptive language appeared in the Campbell deed:

“A certain parcel of land with the buildings thereon . . . , being shown ... on a ‘Plan Showing Easement for Driveway’ . . . dated April 10, 1954 ... to be recorded herewith . . . , bounded and described as follows:
[the deed contains a description, by boundary, of the 2,649 square foot lot]
“Said premises being known as and numbered 229-231 Third Street in the present numbering of said street.
“Included in this conveyance as appurtenant to the above described premises is a right of way for motor vehicle travel from the garage located on said premises to Bent Street over that portion of the grantor’s adjoining land . . . marked ‘Right of Way,’ as shown on said plan.”

The following language appeared in the Kervick deed:

“A certain parcel of land with the buildings thereon . . . , being shown ... on a ‘Plan Showing Easement for Driveway’ . . . dated April 10, 1954 ... to be recorded herewith . . . , bounded and described as follows:
[the deed contains a description, by boundary, of the 2,911 square foot lot]
“Said premises being known as and numbered 233-235 Third Street in the present numbering of said street.
“That portion of the above premises marked ‘Right of Way[’] on said plan is conveyed subject to a right of way for motor vehicle travel to and from the garage located on the adjoining property ... as set forth in a deed of this grantor to Emily Campbell, duly recorded . . . .”

[24]*24The Campbell deed was recorded first, followed by the Kervick deed and the plan, respectively. The language of these deeds was carried along so that the right of way benefits and burdens, originally stated, are applicable to the Harris and Hamouda lots.

Long before 1954, McElroy had constructed the two-bay garage on the Harris lot. In December, 1995, a predecessor to Harris razed it, and the area formerly covered by the garage, and the adjacent area of backyard, were filled and paved as a parking area. After Harris purchased the property in 1996, she changed the use of the property from two-family residential to commercial offices. The occupants of the offices have used, and continue to use, the easement to gain access to the rear of the Harris lot. Harris and her tenants use the parking lot behind the building in connection with the office use of the building.

2. The dispute. Hamouda initiated the action asserting that the right of way was only for the specific purpose of motor vehicle access to the garage that existed on the Harris lot in 1954, and that the right of way was extinguished when the garage was razed in 1995. Alternatively, Hamouda claims that Harris has both overburdened and overloaded the right of way, and created a nuisance, by using it to access a three-car commercial parking lot in connection with the commercial offices. Hamouda asserts that the right of way was located to benefit the residential occupants living in the Harris lot dwelling, by providing parking for up to two noncommercial vehicles in the two-bay Harris garage.1

The judge ruled that the razing of the garage was essentially irrelevant to the continued existence of the right of way because the easement, by the unambiguous language of the creating [25]*25instruments, benefits the whole Harris lot, and was not restricted to just garage access and was not dependent on the condition that the garage continue to exist. Harris, of course, agrees, and Hamouda does not. In a companion statement the judge ruled that circumstances attendant to the execution of the deeds need not be considered because the deeds are unambiguous.2

We disagree, in part, with the judge. The instruments are ambiguous. Accordingly, attendant circumstances are relevant to the question of what the grantor intended when the right of way was created. The right of way, as created, was not intended as a general grant of easement to benefit the entire lot. The razing of the garage did not extinguish the easement, however, although our reasons for so holding differ somewhat from the judge’s reasoning. We do not find it necessary to remand because, based upon the trial record and the supported findings, we are able to decide the case.

3. Creation of the right of way. To determine whether McElroy intended, by the 1954 deeds, to create an easement to benefit the whole Harris lot, rather than a specific and more limited area, with restrictions and conditions, the court must determine the presumed intent of the grantor from the words used in the deeds, “construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). When the language of the applicable instruments is “clear and explicit, and without ambiguity, there is no room for construction, or for the admission of paroi evidence, to prove that the parties intended something different.” Cook v. Babcock, 7 Cush. 526, 528 (1851). Accord Panikowski v. Giroux, 272 Mass. 580, 582 (1930); Westchester Assocs., Inc. v. Boston Edison Co., 47 Mass. App. Ct. 133, 135 (1999). “[T]he words themselves remain the most important evidence of intention,” Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973), quoting from National City Bank v. Goess, 130 F.2d 376, 380 (2d Cir. 1942), but those words may be construed in light of the attendant circumstances, Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005), and “the objective circumstances to which [the words refer].” McLaughlin v. Select[26]*26men of Amherst, 422 Mass. 359, 364 (1996), citing Butler v. Haley Greystone Corp., 352 Mass. 252, 257 (1967). “[T]he grant or reservation [creating an easement] ‘must be construed with reference to all its terms and the then existing conditions as far as they are illuminating' ” (emphasis added). Mugar v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 443, 444 (1990), quoting from J.S. Lang Engr. Co. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

BARBARA J. PRINCIOTTA v. IAN E. DAVIES & Others.
Massachusetts Appeals Court, 2025
KEITH SOR v. KIMBERLY T. LIM & Another.
Massachusetts Appeals Court, 2024
LISA M. JONES v. ANDREW D. JONES (and a consolidated case ).
101 Mass. App. Ct. 673 (Massachusetts Appeals Court, 2022)
Lindenbaum v. Perez
Massachusetts Land Court, 2021
Shear v. Sylvia
Massachusetts Land Court, 2021
Rana v. El Nesr
110 N.E.3d 1220 (Massachusetts Appeals Court, 2018)
Kane v. Martel
103 N.E.3d 765 (Massachusetts Appeals Court, 2018)
Pearson v. Bayview Assocs., Inc.
102 N.E.3d 1033 (Massachusetts Appeals Court, 2018)
Mello v. Town of Dighton
32 Mass. L. Rptr. 596 (Massachusetts Superior Court, 2015)
Martin v. Simmons Properties, LLC
2 N.E.3d 885 (Massachusetts Supreme Judicial Court, 2014)
Latka v. Nielsen
26 Mass. L. Rptr. 295 (Massachusetts Superior Court, 2009)
Faneuil Investors Group, Ltd. Partnership v. Board of Selectmen
913 N.E.2d 908 (Massachusetts Appeals Court, 2009)
Denardo v. Stanton
906 N.E.2d 1024 (Massachusetts Appeals Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
845 N.E.2d 374, 66 Mass. App. Ct. 22, 2006 Mass. App. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamouda-v-harris-massappct-2006.