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- 1309 Appeals Court SAMUEL D. PERRY & others, 1 trustees, 2 & another 3 vs . VIRGIL AIELLO & others. 4

No. 16

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- 1309. Suffolk. May 3, 2017.

- September 19 , 2017. Present: Kinder, Henry, & Desmond, JJ.

Easement . Way , Private. Real Property , Easement, Restrictions. Adverse Possession and Prescription
. Practice, Civil , Injunctive relief.

C ivil action commenced in the Land Court Department on June 11, 2013. The case was heard by Robert B. Foster , J.

1 Eugene H. Clapp, III, and William W. Park.

2 Of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts , Trusts for the Benefit of King's Chapel.

3 66 Beacon Street, LLC. The plaintiffs shall be referred to, collectively, as the "King's Chapel and LLC plaintiffs."

4 DeLuca's Market, Corp.; Robert Aiello; and James S. Hughes and Stewart Grossman, as trustees of the Virgil J. Aiello 2011 Irrevocable Trust and as trustees of the Candace Jans Aiello 2011 QTIP Trust. The defendants shall be referred to, collectively, as the "DeLuca defendants."2

Diane C. Tillotson for the plaintiffs. W. Paul Needham for the defendants
.

HENRY , J. The trustees of the 63 Beacon Street and 64 Beacon Street, Boston , Massachusetts , Trust s for the Benefit of King's Chapel ( the King's Chapel t rustees ) ; 66 Beacon Street,
LLC ( LLC ) ; and the DeLuca defendants ow n abutting properties , and dispute the ext ent of the rights the DeLuca defendant s ha ve in a ten

- foot wide passageway which runs between the King's Chapel property on one side, and the DeLuca and LLC properties on the other side. A judge of the Land C ourt concluded that a 1947 agreement between the parties' predecessors in interest is partially enforceable and limits the DeLuca defendant s ' use of the portion of the passageway they do not own but over which they have a right of passage
. The judge rejected the DeLuca defendants' assertion that the y have acquired by prescription the right to park on the passageway , but concluded that they may temporarily stop a truck in the passageway once per day to load trash and transport it off site. W e affirm in part and reverse in part. Background
. The DeLuca defendants own four lots in the Beacon Hill section of Boston at 7

- 17 Charles Street which, since before 1920 , have housed DeLuca's Market, a grocery and wine store. DeLuca's Market is bound ed by Charles Street to the west, Branch Street to the nor th, 65

- 66 Beacon Street (owned by3

the LLC) to the south , and the passageway to the east. Across the passageway is 63

- 64 Beacon Street , owne d by the King's Chapel trustees , which runs the full length of the passageway
and abuts Branch Street to the north a nd Beacon Street to the south. The LLC property, 65

- 66 Beacon Street, is bound ed by the DeLuca defendants' property to the north, the passageway to the east, and Beacon Street to the south. The judge found and the parties do not dispute that each party o wns the fee to the center of the portion of the passageway abutting its property. This cas e centers on the nature and extent of the DeLuca defendants' rights to use the passage way. In 1947, the parties' pr edecessors in interest entered into an agreement that provide s in paragraph 1 that " appurtenant to " the King's Chapel and LLC properties is the right to use the "entire passageway . . . for all purposes for which streets or ways are from time to time commonly used in Boston
. " It further provide s in par a graph 2 that " a ppurtenant to " the DeLuca
p roperty is the right to use the passageway "for travel on foot and with hand carts" between the DeLuca property and Branch
S treet, " expressly exclud ing the right to place garbage or rubbish receptacles therein or t o use said passageway for
purpose s other than those stated in [par agraph 2]
. " 5 Paragraph 7

5 The DeLuca defendants allege that the 1947 agreement , entered into just before the property was conveyed to their4

provide s that the DeLuca property shall be subject to the foregoing "restricti on" for the benefit of the King's Chapel and LLC properties , and par agraph 9 provide s that the agreement shall be binding on the parties' successors and assigns and "[n]o rights, other than those hereby established, shall be appurtenant hereafter to the [DeLuca property] ." The DeLuca property thereafter was conveyed to the DeLuca defendan ts' predecessor s in interest subject to the 1947 agreement. Some sixty

- six years later, in June, 2013, t he King's Chapel and LLC plaintiffs commenced this action seeking declaratory and injunctive relief as to the DeLuca defendants' use of the passageway. 6 The DeLuca defendants responded to the complaint and, as an affirmative defense, asserted a prescriptive right to park in the passageway. The trial j udge concluded that par agraph 2 of the 1947 agreement restates and sets forth affirmative easements , and that par agraph 7 sets predecessors in interest, and limiting their use of the passageway , was the result of a collusive transaction among the owner s of the subject properties, all of which were then owned by various members of one family either individuall y or as trustees. The DeLuca defendants further assert that the agreement was designed to " severely limit what the Italian grocer buyers
. . . would be able to do in the [p]assageway." We express no opinion on this factual point.

6 Since at least 2000, the DeLu ca defendants have at times parked one or more cars in the passageway, and their service workers have parked in the passageway several times per year. S ince 2013, their employee or agent has regularly backed a truck into the passageway and loaded trash fo r transport to another location.5

forth restrictions. The result, the judge concluded, is that the provision in par agraph 2 limiting the use of the passageway to travel by foot and hand

- cart use is a n affirmative,
"restated" easement , and thus is enforceable ove r the portions of the passageway owned by the King's Chapel and LLC plaintiffs
. The ju dge concluded that par agraph 7 restrict s only the DeLuca defendants' use of the portion of the passageway that they own , and that the restric tion has expired because it was not extended by any of the parties. Thus, the judge concluded, the DeLuca defendant s may use t h eir portion of the passageway in any manner not inconsistent with the rights of any other owner's exercise of its e asement rights , but on the portion of the passageway owned by the King's Chapel and LLC plaintiffs, the DeLuca defendants are limited to travel by foot and hand cart use . The ju dge also concluded that the passageway is not wide enough to allow any party to park on it without obstructing access, but that the DeLuca defendants may stop a truck in the passageway briefly once per day to load trash , as such use does not unreasonably impair the plaintiff s ' rights. In addition, the judge determined, based in part on a view of the p assageway and his determinations of witness credibility, that the DeLuca defendants did not meet their burden of proving that they had acquired a parking easement by prescription.6

Discussion
. 1
. 1947 a greement . With regard to the 1947 agreement, t he issue before us is whether the provisions of the agreement constitute " restrictions " as that term is used in
G. L. c. 184, §§ 23, 26

- 30 , or easements. The difference is not always readily apparent , and the distinction is outcome determinative here, as, unlike restricti ons, easements do not bec ome unenforceable with the passage of time
. See Labounty v. Vickers , 352 Mass. 337, 347

- 348 (1967) . See also Patterson v. Paul , 448 Mass. 658, 663 (2007) ("A n affirmative easement is not considered to be a 'restr iction' affecting the use of real property such that it is subject to the statutory time limitation imposed by G. L. c. 184, § 23").
I n 1947, before the agreement was executed, the parties owned to the center of the passageway abutting their respective
pr operties , and enjoyed a right of passage , in common with others, over the rest of the passageway. See Tehan v. Security
Nat l . Bank of Springfield , 340 Mass. 176, 181

- 182 (1959) ; Murphy

v. Mart Realty of Brockton, Inc
. , 348 Mass. 6 75, 677

- 678 (1965)
. T he effect of the 1947 agreement , therefore, was to restrict the
DeLuca defendants' predecessors' existing right s over the entire
passageway. Restrictions on uses of land generally are disfavored. See
Patterson , 448 Mass. at 662 , citing Stop & Shop Supermkt. Co . v. Urstadt Biddle Properties, Inc
. , 433 Mass. 285, 290 (2001).7

"The Legislature has maintained this policy by limiting the duration of restriction s that are unlimited as to time
. . . , and by establishing a procedure through G. L. c. 184, §§ 26

- 30, [ 7 ] by which a landowner may 'remove or prevent the enforcement of obsolete, uncertain or unenforceable restrictions.'" Stop & Shop Supermkt. Co . , supra , quoting from Labounty , 352 Mass. at 348
. W e agree with the judge's conclusion that pursuant to c. 184 , § 28, the restriction on the portion of the passageway owned by the DeLuca defendants terminated after fifty years, i n September , 1997, there having been no extension filed. The

7 As relevant here, § 26 provides that "[a]ll restrictions on the use of land or construction thereon which run with the land subject thereto and are imposed by covenant, agreement, or otherwise, whether or not stated in the form of a condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking shall be subject to

. . . [G. L. c. 184 , §§ 27

- 30 ] ."
G. L. c. 184, § 26 , as appearing in St. 1990, c. 520, § 2.
S ection 28 provides, in pertinent part: "No restriction imposed before January first, nineteen hundred and sixty

- two shall be enforceable after the expiration of fifty years from its imposition unless a notice of restriction is recorded before the expiration of such fifty years . . . and in case of such recording, twenty years have not expired after the recording of any notice of restriction without the recording of a further notice of restriction."
G. L. c. 184, § 28, inserted by St. 1961, c. 448, § 1.8

judge treated separately, however, the portion of the passageway owned by t he King ' s Chapel and LLC plaintiffs and over which the
DeLuca defendants had a right of passage , and concluded that the
DeLuca defendants' rights over that portion of the passageway were easements unaffected by § 28. In imposing restrictions, however, t he 1947 agreement itself did not expressly distinguish between the portion of the fee owned by the DeLuca defendants' predecessor s and the portion those predecessors had a legal right to use derived from their ownership of a portion of the
passageway. Contrary to the trial judge's conclusion, nothing in paragraphs 2 and 7 of the agreement suggests that one paragraph restricts the portion of the passageway owned by DeLuca's predecessor s and the other paragraph grants easements over the portions owned by the King's Chapel and LLC plaintiff s ' predecessors. While par agraph 2's "appurtenant to" language, in part, apparently caused the judge to conclude that par agraph 2 of the 1947 agreement contained a "restated easement ," we disagree. The agreement gave t he DeLuca defendants' predecessor s nothing
that t he y did not already have. To the contrary, it restricted
the predecessor s ' rights. The DeLuca defendants' predecessor s enjoyed an unrestricted right over the passageway, in common with others, and the agre ement served to restrict those rights.
Pursuant to c. 184, § 26, the statute extends to " [ a ] ll9

restrictions on the use of land" and pays no attention to
labels. See Myers v. Salin , 13 Mass. App. Ct. 127, 136 (1982) (§§ 23 & 26

- 30 reflect a legislative in tent that "'restrictions,' with certain carefully specifie d exceptions [not at issue here ] , be regulated in various ways, without apparent differentiation among the types of interest thereby produced, the names given to them, or the methods used in their creation"). We have scoured the language of the statute and cannot say that its reach does not extend to restrictions of easement rights, particularly where those easement rights derive from an ownership interest in a portion of a way and a corresponding right of passage over the rest of the way. At least when it comes to a passageway or a stre et, it is illogical to apply the statute to only the portion of the passageway the
abutter own s when rights over that section are largely useless without the corresponding passage rights over the rest of the
way. It is true that the Supreme Judicial Court has said that

" [a] ' restriction on the use of land ' is a right to compel the person entitled to possession of the land not to use it in specified ways." Labounty , 352 Mass. at 347
. A nd, further more ,

a n easement, on the other hand, " creates a nonpossesso ry right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by t he10

easement. " M artin v. Simmons Properties, LLC , 467 Mass. 1, 8

- 9 (2014), quoting from Patterson , 448 Mass. at 663. H ere , however, where the 1947 agreement does not grant anything that
the DeLuca defendants' predecessors did not already have , but rather restricted their common

- law rights, we think the term "restriction" as used in the relevant provisions of c
. 184 is broad enough to encompass the limitation of the DeLuca defendants ' rights over the entire passageway. I f the King ' s Chapel and LLC plaintiff s want ed to continue to restrict the
DeLuca defendants' use of the passageway, they were required to file a notice of extension of the restriction. We conclude that the restrictions on the DeLuca defendants' right to use the portion of the passageway they own and the portion owned by the plaintiffs have expired and are unenforceable pursuant to G. L.

c. 184, § 28.
W e comment briefly on the scope of the DeLuca defendants' easement rights. The judge found that it is not possible to park in the passageway without interfering with others ' right to pass. Thus, we agree that no party has the right to park in the
passagew ay. The judge also concluded that a temporary stop of a vehicle in the passageway once per day to load trash for transport to another location does not unreasonabl y impair the King ' s Chapel and LLC plaintiffs' right of passage. On the record presented, w e cannot say the judge's conclusion was11

clearly erroneous. So long as continued temporary stopping once per day does not unreasonably impede the King ' s Chapel and LLC plaintiffs' easement rights, this use may continue. 8
2
. Prescriptive e asement . The DeLuca defendants contend they have acquired an easement by prescription to park in the
passageway. The evidence on this issue was conflicting and the judge's conclusion was based in part on his credibility assessment of witnesses. T he judge's conclu sion that the DeLuca defendants had not met their burden is not clearly erroneous or based upon an incorrect legal standard. See Brown v. Sneider , 9 Mass. App. Ct. 329, 331 (1980); Shapiro v. Burton , 23 Mass. App. Ct. 327 , 330 (1987)
. Conclusion
. So muc h of the judgment as declares that the DeLuca defendants' rights in the passageway are limited by the restrictions contained in par agraph 2 of the 1947 agreement is reversed , and the judgment shall be modified consistent with

8 On February 11, 2013, the DeLuca defendants entered into an agreement known as the " Good Neighbor Agreement " with the Beacon Hill Civic Association, Inc., which is not a party in this action. In that agreement, the DeLuca defendants agreed that " [ a ] ll trash will be stored inside the market and will be picked up inside the market in the mo rning no earlier than 7:00 A . M . " ; all delivery trucks " will park on Charles Street only (and not on Branch St reet ) " ; and the DeLuca defendants will comply "with all legally binding requirements of the recorded" 1947 agreement. We do not pass on the question whether the Good Neighbor Agreement allows trucks to pick up trash from the passageway ; none of the King's Chapel and LLC plaintiffs is a signator y to the Goo d Neighbor Agreement , and so far as the record reveals, they have no right to enforce it.12

this opinion
. In all other re spects, the judgment is affirmed
. In addition, the order denying the King's Chapel and LLC plaintiffs' motion to amend the judgment is affirmed.
So ordered
.