NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-430
JOHN A. DROMSKY & another1
vs.
JOHN T. MANDEVILLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns a dispute over the width of a right of
way. The plaintiffs, John A. Dromsky and Jane T. Dromsky, live
on a private, paved lane referred to as Hillcrest Acres Lane
(lane). The defendants, John T. Mandeville and Douglas Scott
Lester, also live on the lane. After the defendants restored a
stone wall in front of their house, in the area to the side of
the lane, the plaintiffs brought this action alleging that (1)
the paved lane, which was approximately ten feet wide, followed
the path of a forty-foot wide right of way over which the
plaintiffs had easement rights and (2) the defendants
constructed their stone wall in the forty-foot right of way,
thereby interfering with the plaintiffs' use and enjoyment of
1 Jane T. Dromsky. 2 Douglas Scott Lester. it. Following cross motions for summary judgment, an amended
judgement entered declaring that the plaintiffs have only a
prescriptive easement for vehicular and pedestrian passage over
the paved lane. The plaintiffs appeal. We conclude that the
plaintiffs have an express easement over the paved lane, and we
direct that the amended judgment be modified to reflect that.
See G. L. c. 221A, § 5; G. L. c. 231, §§ 115, 125. Otherwise,
we affirm.
1. Notice of appeal. Before turning to the merits, we
address whether the plaintiffs' notice of appeal was timely.
The issue with respect to the timeliness of the plaintiffs'
notice of appeal arises from the fact that the plaintiffs and
the defendants served motions for reconsideration within ten
days of entry of the original February 16, 2021, judgment. On
March 9, 2021, the defendants filed their motion, which asked
that the declaratory judgment be amended "to remove [an]
ambiguity caused by the language and punctuation." On March 19,
2021, the defendants' motion was allowed, and the amended
judgment entered, making a minor wording change to the
declaratory judgment. On March 22, 2021, the plaintiffs filed
their motion, which reargued the merits of the case.3 The
3 The plaintiffs were required to file their motion for reconsideration "either before service or within a reasonable time thereafter." Mass. R. Civ. P. 5 (d) (1), as amended, 404 Mass. 1401 (1989). The defendants do not argue that the 2 plaintiffs' motion was denied months later, on October 1, 2021.
Within thirty days of entry of the order denying the plaintiffs'
motion, they filed their notice of appeal. The defendants argue
that plaintiffs' motion tolled the time for appealing from the
original judgment but not the amended judgment, and that the
plaintiffs therefore had to file their notice of appeal within
thirty days of entry of the amended judgment. We disagree.
The Massachusetts Rules of Appellate Procedure provide that
"unless otherwise provided by statute, the notice of appeal
. . . shall be filed with the clerk of the lower court within 30
days of the date of the entry of the judgment, decree,
appealable order, or adjudication appealed from." Mass. R. A.
P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). However,
the appeal period is tolled if any party makes or serves, in a
timely manner, a motion listed in rule 4 (a) (2), and a new
appeal period commences on the entry of the order disposing of
the last such motion. See Mass. R. A. P. 4 (a) (2); Youghal,
LLC v. Entwistle, 484 Mass. 1019, 1020-1021 (2020). One type of
motion that tolls the appeal period is a motion to alter or
plaintiffs did not file their motion within a reasonable time. Moreover, given the circumstances, we think the plaintiffs did file their motion within a reasonable time. In particular, it appears that the plaintiffs waited until the court clarified the ambiguity with the wording of the declaratory judgment and then filed their motion, which went to the merits, three days after the amended judgment entered. 3 amend the judgment, however titled, but only if the "motion is
served within 10 days after entry of judgment." Mass. R. A. P.
4 (a) (2) (C).
Here, it is undisputed that the plaintiffs' motion tolled
the time for appealing from the original judgment. See Mass. R.
A. P. 4 (a) (2) (C). The only question is whether the
plaintiffs' motion also tolled the time for appealing from the
amended judgment. We conclude that it did where a contrary
conclusion would improperly "elevate form over substance."
Matter of the Estate of Rosen, 86 Mass. App. Ct. 793, 802
(2014). In particular, the defendants received timely notice
that the plaintiffs were seeking substantive reconsideration of
the declaratory judgment, regardless of its precise phrasing,
and the arguments raised in the plaintiffs' motion applied
equally to the original judgment and the amended judgment. As
the defendants acknowledged at oral argument, there would be no
dispute that the plaintiffs' motion tolled the time for
appealing from the amended judgment had the plaintiffs served it
again but altered the title to reflect that they were seeking
reconsideration of the amended judgment. Accordingly, we are
satisfied that the plaintiffs' motion tolled the time for
appealing from both the original judgment and the amended
judgment. See Youghal, LLC, 484 Mass. at 1020-2021 (rule 59
motion served before entry of judgment still tolls appeal
4 period). The defendants' motion to dismiss the appeal is
denied.
2. Right of way. The plaintiffs rely on a 1954 deed from
Lillian Lamb to Leon Sequeira to establish their right to use
the full forty-foot way. The 1954 deed conveyed land
"[c]ommencing at a point approximately 137 feet in a westerly
direction from the west side of Horseneck Road and in the
northerly line of a 40 ft. right of way." The deed also stated,
"The grantee shall have a right of way along the aforementioned
40 ft. right of way from Horseneck Road to the westerly boundary
of the granted premises." The plaintiffs, who trace their chain
of title back to the 1954 deed, argue that this language created
a forty-foot wide right of way.4 We agree that the language
created a right of way, but not that the language created a
forty-foot wide right of way.
The 1954 deed referenced two rights of way: a new right of
way along a supposedly preexisting forty-foot wide right of way.
While the 1954 deed created the new right of way, it did not
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-430
JOHN A. DROMSKY & another1
vs.
JOHN T. MANDEVILLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns a dispute over the width of a right of
way. The plaintiffs, John A. Dromsky and Jane T. Dromsky, live
on a private, paved lane referred to as Hillcrest Acres Lane
(lane). The defendants, John T. Mandeville and Douglas Scott
Lester, also live on the lane. After the defendants restored a
stone wall in front of their house, in the area to the side of
the lane, the plaintiffs brought this action alleging that (1)
the paved lane, which was approximately ten feet wide, followed
the path of a forty-foot wide right of way over which the
plaintiffs had easement rights and (2) the defendants
constructed their stone wall in the forty-foot right of way,
thereby interfering with the plaintiffs' use and enjoyment of
1 Jane T. Dromsky. 2 Douglas Scott Lester. it. Following cross motions for summary judgment, an amended
judgement entered declaring that the plaintiffs have only a
prescriptive easement for vehicular and pedestrian passage over
the paved lane. The plaintiffs appeal. We conclude that the
plaintiffs have an express easement over the paved lane, and we
direct that the amended judgment be modified to reflect that.
See G. L. c. 221A, § 5; G. L. c. 231, §§ 115, 125. Otherwise,
we affirm.
1. Notice of appeal. Before turning to the merits, we
address whether the plaintiffs' notice of appeal was timely.
The issue with respect to the timeliness of the plaintiffs'
notice of appeal arises from the fact that the plaintiffs and
the defendants served motions for reconsideration within ten
days of entry of the original February 16, 2021, judgment. On
March 9, 2021, the defendants filed their motion, which asked
that the declaratory judgment be amended "to remove [an]
ambiguity caused by the language and punctuation." On March 19,
2021, the defendants' motion was allowed, and the amended
judgment entered, making a minor wording change to the
declaratory judgment. On March 22, 2021, the plaintiffs filed
their motion, which reargued the merits of the case.3 The
3 The plaintiffs were required to file their motion for reconsideration "either before service or within a reasonable time thereafter." Mass. R. Civ. P. 5 (d) (1), as amended, 404 Mass. 1401 (1989). The defendants do not argue that the 2 plaintiffs' motion was denied months later, on October 1, 2021.
Within thirty days of entry of the order denying the plaintiffs'
motion, they filed their notice of appeal. The defendants argue
that plaintiffs' motion tolled the time for appealing from the
original judgment but not the amended judgment, and that the
plaintiffs therefore had to file their notice of appeal within
thirty days of entry of the amended judgment. We disagree.
The Massachusetts Rules of Appellate Procedure provide that
"unless otherwise provided by statute, the notice of appeal
. . . shall be filed with the clerk of the lower court within 30
days of the date of the entry of the judgment, decree,
appealable order, or adjudication appealed from." Mass. R. A.
P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). However,
the appeal period is tolled if any party makes or serves, in a
timely manner, a motion listed in rule 4 (a) (2), and a new
appeal period commences on the entry of the order disposing of
the last such motion. See Mass. R. A. P. 4 (a) (2); Youghal,
LLC v. Entwistle, 484 Mass. 1019, 1020-1021 (2020). One type of
motion that tolls the appeal period is a motion to alter or
plaintiffs did not file their motion within a reasonable time. Moreover, given the circumstances, we think the plaintiffs did file their motion within a reasonable time. In particular, it appears that the plaintiffs waited until the court clarified the ambiguity with the wording of the declaratory judgment and then filed their motion, which went to the merits, three days after the amended judgment entered. 3 amend the judgment, however titled, but only if the "motion is
served within 10 days after entry of judgment." Mass. R. A. P.
4 (a) (2) (C).
Here, it is undisputed that the plaintiffs' motion tolled
the time for appealing from the original judgment. See Mass. R.
A. P. 4 (a) (2) (C). The only question is whether the
plaintiffs' motion also tolled the time for appealing from the
amended judgment. We conclude that it did where a contrary
conclusion would improperly "elevate form over substance."
Matter of the Estate of Rosen, 86 Mass. App. Ct. 793, 802
(2014). In particular, the defendants received timely notice
that the plaintiffs were seeking substantive reconsideration of
the declaratory judgment, regardless of its precise phrasing,
and the arguments raised in the plaintiffs' motion applied
equally to the original judgment and the amended judgment. As
the defendants acknowledged at oral argument, there would be no
dispute that the plaintiffs' motion tolled the time for
appealing from the amended judgment had the plaintiffs served it
again but altered the title to reflect that they were seeking
reconsideration of the amended judgment. Accordingly, we are
satisfied that the plaintiffs' motion tolled the time for
appealing from both the original judgment and the amended
judgment. See Youghal, LLC, 484 Mass. at 1020-2021 (rule 59
motion served before entry of judgment still tolls appeal
4 period). The defendants' motion to dismiss the appeal is
denied.
2. Right of way. The plaintiffs rely on a 1954 deed from
Lillian Lamb to Leon Sequeira to establish their right to use
the full forty-foot way. The 1954 deed conveyed land
"[c]ommencing at a point approximately 137 feet in a westerly
direction from the west side of Horseneck Road and in the
northerly line of a 40 ft. right of way." The deed also stated,
"The grantee shall have a right of way along the aforementioned
40 ft. right of way from Horseneck Road to the westerly boundary
of the granted premises." The plaintiffs, who trace their chain
of title back to the 1954 deed, argue that this language created
a forty-foot wide right of way.4 We agree that the language
created a right of way, but not that the language created a
forty-foot wide right of way.
The 1954 deed referenced two rights of way: a new right of
way along a supposedly preexisting forty-foot wide right of way.
While the 1954 deed created the new right of way, it did not
create the forty-foot wide right of way, and the plaintiffs did
not offer evidence in the Superior Court showing that the forty-
4 The plaintiffs also point to a 1952 plot plan that Lamb filed with the registry of deeds showing undeveloped and undivided land with a forty-foot wide "private drive" running through it. However, the plaintiffs have not explained how this plot plan, which was not referenced in the subsequent 1954 deed, conveyed any rights to the private drive. 5 foot wide right of way was validly created. Where the 1954 deed
created a right of way of undefined width, the right of way was
limited to a "convenient width that would be reasonable for the
purposes at the time of the grant."5 M. Pill, Real Estate Law
§ 8:39 (2022-2023 ed. 2022). See George v. Cox, 114 Mass. 382,
387 (1874). On this point, the undisputed summary judgment
evidence showed that the paved lane had provided decades of
convenient ingress and egress to and from the residential
properties along the lane, and that the new right of way created
by the 1954 deed was therefore limited to the width of the paved
lane. The judge did not err, then, in granting the plaintiffs
an interest only in that area.6
Separately, we note that the plaintiffs cite Casella v.
Sneirson, 325 Mass. 85 (1949), in support of their argument that
5 In contrast, "[w]here the language of an easement requires that a way of a defined width be kept open, or that the full extent of the width described be usable, we have prohibited any encroachment into the way." Martin v. Simmons Props., LLC, 467 Mass. 1, 15-16 (2014). That was not the case here. 6 On appeal, the plaintiffs have submitted a typed transcription
of a handwritten deed, from Patrick Cummings to Elizabeth A. Bowers and Josiah A. Bowers, that conveyed "a right of way . . . through my land . . . provided the grantees herein mentioned follow[] the laneway now used by the grantor." The plaintiffs argue that this deed created the forty-foot wide right of way. Even if we were to consider the deed, which was not submitted in the Superior Court and is not part of the record, it would not alter our analysis, as it does not specify that the right of way was forty feet wide. See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019) ("record on appeal shall consist of the documents and exhibits on file"). 6 they have an easement over an unobstructed, forty-foot wide
right of way. The language in Casella on which the plaintiffs
rely pertains to easements by estoppel, but the plaintiffs do
not otherwise elaborate on the point or explain how, by virtue
of an easement by estoppel, they have an easement over an
unobstructed forty-foot right of way. See id. at 90 ("When a
grantor conveys land, bounding it on a way or street, he and his
heirs are estopped to deny that there is such a street or way"
[quotation and citation omitted]). Accordingly, we decline to
address the argument further.
3. Attorney's fees. In the Superior Court, the motion
judge awarded the defendants attorney's fees incurred in
responding to the plaintiffs' motion for reconsideration.7 The
motion judge noted that the plaintiffs continued "to repeatedly
rehash the same arguments ad nauseam." The plaintiffs argue
that their motion was meritorious, and that the decision to
7 The defendants argue that, regardless of whether the plaintiffs' entire appeal is properly before the court, the plaintiffs' challenge to the award of attorney's fees is not. The defendants argue that while the plaintiffs' notice of appeal included the order denying the plaintiffs' motion for reconsideration, the notice of appeal did not specify that the plaintiffs were appealing from so much of that order as awarded attorney's fees, or that the plaintiffs were appealing from the subsequent order that specified the amount of attorney's fees being awarded. This argument is meritless. The plaintiffs appealed from the entire order denying their motion for reconsideration, which included the award of attorney's fees. 7 award attorney's fees was therefore an abuse of discretion.8 We
review an award of attorney's fees for an abuse of discretion.
See Wong v. Luu, 472 Mass. 208, 220 (2015). Here, we discern
none, where the plaintiffs' motion merely repeated arguments
that the motion judge had already rejected.
4. Conclusion. The words "a prescriptive easement,"
appearing in part (iii) (a) of the amended judgment, are
modified to read "an express easement." As modified, the
amended judgment is affirmed. The order denying the plaintiffs'
motion for reconsideration is also affirmed.
So ordered.
By the Court (Sacks, Singh & Brennan, JJ.9),
Clerk
Entered: March 8, 2023.
8 Separately, the defendants request attorney's fees and double costs incurred in defending this appeal. That request is denied. While the plaintiffs have not prevailed on the main issue of the width of the right of way, their appeal was not frivolous. 9 The panelists are listed in order of seniority.