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
24-P-379
PATRICIA EGAN
vs.
BARBARA J. SEIDMAN & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Elmwood Avenue homeowners Barbara Seidman and Kimberly
Fuson, the defendants, constructed a stone wall. Patricia Egan,
the plaintiff, filed a complaint alleging, among other things
not before us in this appeal, that the wall encroached the
boundaries of Elmwood Avenue and obstructed her easement over
the unpaved private way. Following a trial, a Land Court judge
entered a judgment in favor of the plaintiff as to the stone
wall, and ordered the defendants to remove the wall. The judge
stayed the order pending appeal. We affirm.
1Kimberly Fuson. Defendants Reginald A. Nunnally, Kathlean Nunnally, the heirs of Marian C. Alkins Johnson, Carrie B. Tankard, and Lee Gilliam were not parties to this appeal. Background. According to the judge's findings of fact
following the trial, Elmwood Avenue is a private way that runs
north to south in the town of Oak Bluffs on Martha's Vineyard
and "consists of a packed dirt pathway." The plaintiff lives on
the eastern side of the pathway, and the defendants live on the
western side. The traveled portion of the road is wide enough
to accommodate the passage of large construction and tree-
removal vehicles alongside three utility poles.
Around 2013, the defendants placed hay bales between a
utility pole near their property and the traveled portion of the
dirt pathway. The plaintiff objected to the placement of the
hay bales because they impeded her ability to use Elmwood
Avenue. Thereafter, the defendants replaced the hay bales with
a stone wall "directly beside the existing traveled [path]way."
This stone wall "impedes cars from pulling off to the side of
the existing traveled [path]way to allow other cars to pass and
obstructs pedestrians from stepping out of the way of oncoming
traffic."
After hearing testimony, reviewing eighty-one exhibits
(including deeds, plans, sketches, and photographs), and viewing
Elmwood Avenue and adjacent properties, the judge concluded that
the defendants constructed the stone wall "within the layout of
Elmwood Avenue" that is the subject of the plaintiff's easement.
He reached this conclusion after determining that the plaintiff
2 has an easement over the entirety of Elmwood Avenue, and that
the width of that easement extends five feet west of the utility
pole near the defendants' property. Because the stone wall,
built to the east of the utility pole, constitutes an
obstruction to the plaintiff's "rights to pass and repass
Elmwood Avenue," the judge concluded that the wall must be
removed.
Discussion. On appeal from a judgment after trial, we
accept the trial judge's findings of fact unless they are
clearly erroneous. Martin v. Simmons Props., LLC, 467 Mass. 1,
8 (2014). We apply de novo review to conclusions of law. Id.
Based on these standards, we discern no error from the judge's
careful and meticulous review of the evidence and legal
conclusions drawn therefrom.
In the absence of an agreement or an instrument specifying
the dimensions of the easement, a "court may fix the bounds."
Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443,
445 (1990). "The extent of an easement depends on the
circumstances of its creation." Id. at 444. A judge should
consider "dimensions that are reasonably necessary for the
enjoyment of the dominant estate, and should not limit the right
of way to the purposes for which the dominant estate was used or
the means of transportation in common use at the time the
easement was created." Cater v. Bednarek, 462 Mass. 523, 529
3 n.18 (2012). A width that accommodates "a suitable and
convenient use of the way" is a question of fact for the trial
judge that must be accepted unless "plainly wrong." Dunham v.
Dodge, 235 Mass. 367, 373 (1920).
The defendants concede that each property along Elmwood
Avenue is subject to an easement allowing Elmwood Avenue
property owners "to pass along the private way for ingress and
egress of their properties." They contend that the judge erred
by establishing the width of the easement to allow for two-way
traffic. We disagree.
In the absence of an agreement or instrument specifying the
dimensions, the judge had the discretion to fix the bounds of
the easement to be consistent with the circumstances of its
creation and a suitable and convenient use of the way. See
Dunham, 235 Mass. at 373; Mugar, 28 Mass. App. Ct. at 445. As
the judge found, the origin of this easement is implied from
three sets of plans, recorded in 1871, 1906, and 1934, by the
grantor, Vineyard Grove Company (VGC), that divided a section of
Oak Bluffs into 2,000 house lots, roads, and parks.
Sequentially numbered house lots are depicted in these plans,
and the house lots of the plaintiff and the defendants are shown
on Elmwood Avenue (the 1934 plan obscures the lot numbers by
shading lots that have been sold). In 1924 and 1925, VGC
conveyed the house lots comprising the plaintiff's property. A
4 1995 deed conveyed the plaintiff's property to her, with
reference to the 1906 plan and Elmwood Avenue. The source deeds
for each of the parties' properties also refer to the 1906 plan.
As the judge concluded, "It would be illogical to think that VGC
intended anything other than that the owners of the lots
adjacent to Elmwood Avenue would be able to use the ways laid
out on the [grantor's] plans, including Elmwood Avenue, to
access their lots." Because the plans did not represent an
accurate survey of the house lots or the adjacent roads,
however, the judge concluded that the precise width of the
Elmwood Avenue easement could not be determined from the plans.
To establish the width, the judge ably examined the
evidence. He first fixed the eastern boundary of Elmwood Avenue
at the plaintiff's western property line after crediting
testimony of a surveyor. The judge did not credit any plans or
surveys establishing the western boundary of Elmwood Avenue.
Next, he logically determined that the easement width should
facilitate travel "in both directions, on foot or by vehicle, as
necessary for the full enjoyment" of the plaintiff's property.
This determination is eminently reasonable based on the evidence
that showed the southern portion of Elmwood Avenue contains four
existing residences, one vacant house lot, and intersections
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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
24-P-379
PATRICIA EGAN
vs.
BARBARA J. SEIDMAN & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Elmwood Avenue homeowners Barbara Seidman and Kimberly
Fuson, the defendants, constructed a stone wall. Patricia Egan,
the plaintiff, filed a complaint alleging, among other things
not before us in this appeal, that the wall encroached the
boundaries of Elmwood Avenue and obstructed her easement over
the unpaved private way. Following a trial, a Land Court judge
entered a judgment in favor of the plaintiff as to the stone
wall, and ordered the defendants to remove the wall. The judge
stayed the order pending appeal. We affirm.
1Kimberly Fuson. Defendants Reginald A. Nunnally, Kathlean Nunnally, the heirs of Marian C. Alkins Johnson, Carrie B. Tankard, and Lee Gilliam were not parties to this appeal. Background. According to the judge's findings of fact
following the trial, Elmwood Avenue is a private way that runs
north to south in the town of Oak Bluffs on Martha's Vineyard
and "consists of a packed dirt pathway." The plaintiff lives on
the eastern side of the pathway, and the defendants live on the
western side. The traveled portion of the road is wide enough
to accommodate the passage of large construction and tree-
removal vehicles alongside three utility poles.
Around 2013, the defendants placed hay bales between a
utility pole near their property and the traveled portion of the
dirt pathway. The plaintiff objected to the placement of the
hay bales because they impeded her ability to use Elmwood
Avenue. Thereafter, the defendants replaced the hay bales with
a stone wall "directly beside the existing traveled [path]way."
This stone wall "impedes cars from pulling off to the side of
the existing traveled [path]way to allow other cars to pass and
obstructs pedestrians from stepping out of the way of oncoming
traffic."
After hearing testimony, reviewing eighty-one exhibits
(including deeds, plans, sketches, and photographs), and viewing
Elmwood Avenue and adjacent properties, the judge concluded that
the defendants constructed the stone wall "within the layout of
Elmwood Avenue" that is the subject of the plaintiff's easement.
He reached this conclusion after determining that the plaintiff
2 has an easement over the entirety of Elmwood Avenue, and that
the width of that easement extends five feet west of the utility
pole near the defendants' property. Because the stone wall,
built to the east of the utility pole, constitutes an
obstruction to the plaintiff's "rights to pass and repass
Elmwood Avenue," the judge concluded that the wall must be
removed.
Discussion. On appeal from a judgment after trial, we
accept the trial judge's findings of fact unless they are
clearly erroneous. Martin v. Simmons Props., LLC, 467 Mass. 1,
8 (2014). We apply de novo review to conclusions of law. Id.
Based on these standards, we discern no error from the judge's
careful and meticulous review of the evidence and legal
conclusions drawn therefrom.
In the absence of an agreement or an instrument specifying
the dimensions of the easement, a "court may fix the bounds."
Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443,
445 (1990). "The extent of an easement depends on the
circumstances of its creation." Id. at 444. A judge should
consider "dimensions that are reasonably necessary for the
enjoyment of the dominant estate, and should not limit the right
of way to the purposes for which the dominant estate was used or
the means of transportation in common use at the time the
easement was created." Cater v. Bednarek, 462 Mass. 523, 529
3 n.18 (2012). A width that accommodates "a suitable and
convenient use of the way" is a question of fact for the trial
judge that must be accepted unless "plainly wrong." Dunham v.
Dodge, 235 Mass. 367, 373 (1920).
The defendants concede that each property along Elmwood
Avenue is subject to an easement allowing Elmwood Avenue
property owners "to pass along the private way for ingress and
egress of their properties." They contend that the judge erred
by establishing the width of the easement to allow for two-way
traffic. We disagree.
In the absence of an agreement or instrument specifying the
dimensions, the judge had the discretion to fix the bounds of
the easement to be consistent with the circumstances of its
creation and a suitable and convenient use of the way. See
Dunham, 235 Mass. at 373; Mugar, 28 Mass. App. Ct. at 445. As
the judge found, the origin of this easement is implied from
three sets of plans, recorded in 1871, 1906, and 1934, by the
grantor, Vineyard Grove Company (VGC), that divided a section of
Oak Bluffs into 2,000 house lots, roads, and parks.
Sequentially numbered house lots are depicted in these plans,
and the house lots of the plaintiff and the defendants are shown
on Elmwood Avenue (the 1934 plan obscures the lot numbers by
shading lots that have been sold). In 1924 and 1925, VGC
conveyed the house lots comprising the plaintiff's property. A
4 1995 deed conveyed the plaintiff's property to her, with
reference to the 1906 plan and Elmwood Avenue. The source deeds
for each of the parties' properties also refer to the 1906 plan.
As the judge concluded, "It would be illogical to think that VGC
intended anything other than that the owners of the lots
adjacent to Elmwood Avenue would be able to use the ways laid
out on the [grantor's] plans, including Elmwood Avenue, to
access their lots." Because the plans did not represent an
accurate survey of the house lots or the adjacent roads,
however, the judge concluded that the precise width of the
Elmwood Avenue easement could not be determined from the plans.
To establish the width, the judge ably examined the
evidence. He first fixed the eastern boundary of Elmwood Avenue
at the plaintiff's western property line after crediting
testimony of a surveyor. The judge did not credit any plans or
surveys establishing the western boundary of Elmwood Avenue.
Next, he logically determined that the easement width should
facilitate travel "in both directions, on foot or by vehicle, as
necessary for the full enjoyment" of the plaintiff's property.
This determination is eminently reasonable based on the evidence
that showed the southern portion of Elmwood Avenue contains four
existing residences, one vacant house lot, and intersections
with additional residential roads including Glenwood Avenue and
Maple Avenue. Also, the judge credited the surveyor's testimony
5 that the utility poles must be included in the layout of Elmwood
Avenue because one purpose of such a private way is to
accommodate utilities for the residents. Thus, the judge's
determination that the easement must extend five feet to the
west of the utility pole adjacent to the defendants' residence
properly established "a suitable and convenient use of the way"
for two-way travel and the accommodation of the utility poles.
Dunham, 235 Mass. at 373. See Johnson v. Kinnicutt, 56 Mass.
153, 157-158 (1848) (judge may determine area that "must be kept
open and unobstructed in order to afford the plaintiff a
reasonable and convenient right of way").
To the extent the defendants have preserved the argument,
we disagree with the defendants' alternative contention that the
judge should have considered a remedy short of removing the
stone wall because the judge did not also order the removal of
other encroachments on Elmwood Avenue. "There is no doubt that
the court has the power to restrain the erection or require the
removal of buildings or structures which permanently encroach on
land over which another has such an easement where such
encroachment will interfere with the use of the easement."
Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co.,
327 Mass. 711, 714 (1951); G. L. c. 185, § 25 (Land Court
authority to grant injunctive relief). Even if there existed
other unremedied obstructions on Elmwood Avenue, the stone wall,
6 constructed "directly beside the existing traveled [path]way"
posed a specific interference with the plaintiff's ability to
navigate along the easement by "imped[ing] cars from pulling off
to the side of the existing traveled [path]way to allow other
cars to pass and obstruct[ing] pedestrians from stepping out of
the way of oncoming traffic." In these circumstances, the judge
did not have to remedy every other conceivable encroachment
along Elmwood Avenue or formulate a plan for sharing costs of
remediation before ordering the removal of the stone wall.
Judgment affirmed.
By the Court (Englander, Hodgens & Smyth, JJ. 2),
Clerk
Entered: August 4, 2025.
2 The panelists are listed in order of seniority.