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-229

JAMES MAGUIRE & others1

vs.

PLANNING BOARD OF HAMILTON & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendants Patricia and Nazir Shamsuddin appeal from a Land 

Court judgment invalidating defendant planning board of 

Hamilton's (board) approval of the Shamsuddins' proposed 

subdivision plan. Acting on cross motions for summary judgment, 

a Land Court judge concluded that the board exceeded its 

authority in approving the plan because the plan employed a 

private way in a manner that would overload the Shamsuddins' 

easement over the way. Agreeing with the judge's conclusion 

that, in the circumstances of this case, the proposed use of the 

easement as a subdivision road would violate the bright-line 

1 Jennifer Maguire, Brett McKechnie, and Laurie McKechnie. 

2 Patricia Shamsuddin and Nazir Shamsuddin.
2

rule reaffirmed in Taylor v. Martha's Vineyard Land Bank Comm'n, 

475 Mass. 682, 686 (2016), we affirm.

Background. We set forth the undisputed facts drawn from 

the summary judgment record. See LeFort Enters., Inc. v. 

Lantern 18, LLC, 491 Mass. 144, 145 (2023). The Shamsuddins own 

two parcels of land originally shown on separate subdivision 

plans. They own "lot C" as shown on a subdivision plan dated 

March 24, 1956, and a portion of "lot 28" as shown on a 

subdivision plan dated October 12, 1960.3 Lot 28 abuts the 

western side of lot C, and a fifty-foot-wide, paved private way 

runs along the eastern side of lot C. The plaintiffs, the 

Maguires and the McKechnies, own properties that also abut the 

private way. The plaintiffs have easements over the private 

way, and they use it to gain access to Meyer Road, the nearest 

public way.

The Shamsuddins proposed to create three new lots, each 

incorporating property derived from lot C (toward the front of 

each new lot) and lot 28 (at the rear of new each lot). Two of 

the lots would have frontage on, and would be accessed by, the 

3 More precisely, the portion of lot 28 owned by the Shamsuddins 

is shown as lot 5 on a 2013 "approval not required" plan. 

Following the terminology adopted by the judge and the parties, 

we refer to the Shamsuddins' portion of lot 28 shown on the 

subdivision plan simply as "lot 28."
3

private way abutting lot C.4 Lot C has the benefit of an 

easement over the private way; however, lot 28 does not.5 

Anticipating the overloading issue, the Shamsuddins proposed 

that residential homes would be constructed entirely on the 

portions of the new lots derived from lot C. The board approved 

the subdivision plan with certain conditions, one of those 

conditions being that the placement of any structures on the new 

lots be limited to lot C.

The plaintiffs appealed the board's decision to the Land 

Court pursuant to G. L. c. 41, § 81BB. The judge concluded that 

the board exceeded its authority in approving the subdivision 

plan because the proposed use of the private way, which would 

benefit land derived from lot 28, would overload the easement, 

which is appurtenant to the plaintiffs' lots and to lot C, but 

not to lot 28. Accordingly, the judge annulled the decision 

approving the subdivision plan.6

4 The third lot would have frontage on both the private way and 

on Meyer Road, with direct access to Meyer Road.

5 The judgment in this case included a declaration that lot C 

benefited from an express easement over the private way and 

ordered that a deed be modified to properly reflect that 

easement. The plaintiffs do not challenge that aspect of the 

judgment. The judge also found that lot 28 does not have the 

benefit of an easement over the private way, and the Shamsuddins 

concede this point.

6 The judge also concluded that the board exceeded its authority 

by failing to modify the conditions of two earlier subdivision

approvals that restricted the number of houses on the lots in 
4

Discussion. "Summary judgment is appropriate where there 

is no material issue of fact in dispute and the moving party is 

entitled to judgment as a matter of law." HSBC Bank USA, N.A.

v. Morris, 490 Mass. 322, 326 (2022). We review the decision de 

novo. See id.

"We have long held that a 'right of way appurtenant to [a 

particular piece of] land . . . cannot be used by the owner of 

the dominant tenement to pass to or from other land adjacent to 

or beyond that to which the easement is appurtenant" (footnote 

omitted). Taylor, 475 Mass. at 686, quoting Murphy v. Mart 

Realty of Brockton, Inc., 348 Mass. 675, 678-679 (1965). See 

Greene v. Canny, 137 Mass. 64, 68 (1884). Indeed, "'[a]bsent 

. . . consent [from the owner of the servient estate], use of an 

easement to benefit property located beyond the dominant estate 

constitutes an over[load]ing of the easement' (citation 

omitted)." Taylor, supra, quoting McLaughlin v. Selectmen of 

Amherst, 422 Mass. 359, 364 (1996). "This limitation on the 

question and by failing to obtain consent for modification from 

the owner of an affected lot. In addition, the judge declared 

that although the private way would be overloaded, it would not

be overburdened. The Shamsuddins and the plaintiffs in their 

cross appeal contest various aspects of these additional 

rulings. Because we affirm the annulment of the plan on the 

grounds of overloading, we need not reach any of these issues; 

if they recur at all, it will be under entirely different 

circumstances. In addition, the plaintiffs stated in their 

brief that we need not address their cross appeal if we affirm 

on the issue of overloading.
5

permissible use of easements is a bright-line 'rule [meant to] 

avoid[] otherwise difficult litigation over the question whether 

increased use unreasonably increases the burden on the servient 

estate.'" Taylor, supra at 386, quoting Restatement (Third) of 

Property: Servitudes § 4.11 comment b (2000).

While recognizing this bright-line rule, the Shamsuddins

contend that it does not control this case because they are not 

proposing to construct a structure on, or to make any active use 

whatsoever of, the portions of the new lots that derive from lot 

28. They contend that the new lots make only passive, not 

actual, use of lot 28 -- to satisfy the town's minimum lot size 

requirement for the zoning district in which the lots are 

situated. At oral argument, the Shamsuddins even suggested they 

would be willing to erect fences across the new lots at the 

boundary between lot C and lot 28 to prevent the lot 28 portion 

of the new lots from deriving any benefit from the use of the 

private way. In support of their argument, the Shamsuddins rely 

on a 2005 decision of a different Land Court judge, which the 

Land Court judge in this case distinguished on the facts and 

also considered to have been superseded by subsequent 

"clarifications of the law." In any case, the 2005 Land Court 

decision is not binding on us. See Blue View Constr., Inc. v. 

Franklin, 70 Mass. App. Ct. 345, 354 n.10 (2007).
6

The Shamsuddins in effect argue that the bright-line rule, 

which prohibits using an easement for the benefit of adjacent

property to which the easement is not appurtenant, should not 

apply where the easement will not actually be used for access to

the adjacent property, or where such use would be de minimis. 

This argument, however, has been expressly rejected. See 

Taylor, 475 Mass. at 686, quoting Restatement (Third) of 

Property: Servitudes § 4.11 comment b (2000) (bright-line rule 

"applies 'even if no additional use of the easement or burden on 

the servient estate would ensue'"). The Shamsuddins' suggestion 

that "the McKechnies are in a position, both physically and 

legally, to make sure that no one will use the Private Way to 

access any part of Lot 28" invites precisely the type of 

litigation over the nature and extent of use of the adjacent 

land that the bright-line rule is intended to prevent.

Judgment affirmed.

By the Court (Rubin, 

Massing & D'Angelo, JJ.7),

Clerk

Entered: March 15, 2023.

7 The panelists are listed in order of seniority.