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-931

EDWARD J. MORIARTY & another1

vs.

EDMOND L. RESOR, trustee,2 & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case concerns the validity and scope of an easement 

the defendants claim to have over the plaintiffs' property in 

the town of Lexington (town). The plaintiffs, Edward Moriarty 

and Emily McPhillips, challenge the right of the defendants to 

use the driveway located on the plaintiffs' property to access 

all of the defendants' property from the public way. In 

counterclaims, the defendants seek a declaration of their 

easement rights and contend that Moriarty and McPhillips have 

1 Emily C. McPhillips.

2 Of the Bushnell Trust under a declaration of trust dated 

September 27, 2005.

3 Charles M. Lacy, trustee of the Bushnell Trust under a 

declaration of trust dated September 27, 2005; Iqbal Quadir;

Samina Quadir; and Bank of America, N.A., intervener. Bank of 

America has not participated in this appeal.
2

interfered with those rights. After resolving some issues by 

summary judgment, a Land Court judge conducted a trial and 

issued a judgment declaring the scope and extent of the 

defendants' easement rights. We affirm.

Background. a. Development of the property. In 1958, 

Marshall and Rena Bushnell owned all of the property at issue. 

The land was situated on a hill and improved with a mansion 

constructed in 1891. Access to the mansion from the public way, 

Waltham Street, was by a winding driveway that ended near the 

mansion. This driveway is at the center of this litigation.

In 1958, the Bushnells recorded an "ANR plan" -- a plan

that did not require approval under the subdivision control 

law -- showing three lots: lot B1, lot B2, and lot B3 (the 1958 

ANR plan). Lot B2 contained 3.19 acres and included the mansion,

and lot B1 contained 7.21 acres to the north and west of lot B2

and included most of the driveway.4 The driveway is shown on the

1958 ANR plan as meandering northwesterly from Waltham Street to 

a point on lot B1 where it essentially does a U-turn, and 

proceeds southerly to lot B2. This U-turn has been referred to 

by the parties as the "hairpin turn," and by the judge as a 

"switchback." It now fronts the plaintiffs' home.

4 A third lot, lot B3, is also shown on the 1958 ANR plan as an 

arrow-shaped lot containing 6,700 square feet abutting a portion 

of the driveway. That sliver of property is not at issue in 

this case.
3

On September 19, 1958, the Bushnells sold lot B2, including 

the mansion, to the Bridgmans, one of the defendants' 

predecessors, with an express easement over the driveway that 

provided as follows:

"The above-described premises are conveyed, together with a 

right to use and maintain the driveway as shown on said 

plan in common with the owners of Lot B1 and the owners of 

the parcel shown as Karl S. Marshall[5] on said plan for all 

purposes for which streets and ways are commonly used in 

the Town of Lexington." (Emphasis added.)

Thereafter, further development of lot B1 took place. In 1960, 

the town took the beginning of the driveway to create Worthen 

Road running in a northwesterly direction from Waltham Street

and, in 1967, the planning board approved a subdivision of lot B1

into lots numbered 1 through 6, whereby the southeastern portion 

of the driveway from Worthen Road was replaced by "Bushnell 

Drive," which ended in a cul-de-sac. From the northwestern end 

of the cul-de-sac, the original driveway continued in a loop 

(the hairpin turn) over lot 3 to the original lot B2 that housed 

the mansion. That plan was recorded on January 3, 1968 (the 

January 1968 plan). Lots 1-2 and 4-6, as shown on the January 

1968 plan, each contained between 18,000 and 20,500 square feet.

5 The Marshall property is shown on the 1958 ANR plan as abutting 

Waltham Street to the southeast and the driveway to the 

northwest. There are no issues involving the Marshall property 

in this case.
4

Lot 3 on the January 1968 plan contained approximately 4.5 acres 

and a large portion of the remaining original driveway.

In October of 1968, lot 3 was further divided into lot 3-A, 

containing 2.77 acres, and lot 3-B, containing 1.61 acres

(October 1968 ANR plan).6 Lot 3-B was rectangularly shaped and 

shared a long common boundary with lot B2, the mansion lot. 

Interestingly, the driveway from Bushnell Dr. was not shown on 

this plan and the plan reflects that "[w]hereas Lots 3-C and 3-B 

are not separate building lots" approval under the subdivision 

control law was not required. Notes on the plan also reflected

that lot 3-B was "to be conveyed to" the Kanters, who earlier 

had purchased lot B2, the mansion lot, from the Bridgmans.7

Indeed, the Kanters took lot 3-B from that lot's then owner, the 

Bushnells, "subject to a driveway easement of record for the 

benefit of the land of the grantees," and with the benefit of a 

water and sewer easement over lot 3-A, and with the restriction 

that no dwelling could be constructed on lot 3-B prior to 

October 30, 1978. The judge found that "the Bushnells and the 

Kanters agreed to the conveyance of [lot 3-B] to give the 

Kanters the ability to build a second, additional residence on 

6 The plan also showed lot 3-C, a small 4,133 square foot lot in 

the southwest corner of lot 3B. Notes reflected that lot 3-C 

was to be conveyed to another couple, the Shrocks.

7 According to certain documents recorded in the Middlesex South 

Registry, of which the judge took judicial notice, the Bridgmans 

conveyed original lot B2 to Irving and Gladys Kanter in 1966.
5

the Kanters' lands, including their new" lot 3-B. The judge 

further found that Mr. Kanter later "explained to Mr. Moriarty 

the 'pressure' Kanter was under in the late 1960s to build a 

second house near the mansion for his daughter. The result was 

the Kanters' purchase of Lot 3-B." In addition, the judge found 

that although there was a restriction against building an 

additional home within ten years on lot 3-B, the water and sewer 

easement benefitting lot 3-B "evidences an intent for a dwelling 

to be constructed on Lot 3-B after" the ten-year restriction 

expired.

Together, the defendants currently own lot B2 (the mansion 

lot) and lot 3-B, the lot lines of both of which were 

reconfigured in 2002 when their predecessors recorded an ANR 

plan that combined all but the southeast corner of the mansion 

lot and a sliver of lot 3-B to create lot 10D, containing

127,350 square feet and including the mansion. In addition, a 

rectangular portion of the southeast corner of lot B2, with 

frontage on Waltham Street, was connected to a large rectangular 

portion of lot 3-B by an extension of the driveway on lot B2 to 

create lot 10E, containing 82,391 square feet.

Defendants Iqbal and Samina Quadir own lot 10D; the 

defendant trustee of the Bushnell Trust, of which the Quadirs 

are the beneficiaries, own lot 10E. As none of the issues turn 
6

on the exact ownership interest, we refer to them collectively 

as the defendants or the Quadirs.

b. Procedural posture. Moriarty and McPhillips purchased

lot 3-A on December 29, 1993. The parties had disagreements 

regarding the driveway when each sought to modify it to improve 

their properties. The Quadirs presented to the plaintiffs a 

plan to modify the driveway but did not seek approval from the 

town for the plan. Moriarty and McPhillips rejected the plan.

Moriarty and McPhillips commenced this action in the Land 

Court seeking a declaratory judgment that the defendants' use of 

the common driveway for an additional house will overburden,

overload, and exceed the scope of the easement (count 1). The 

Quadirs filed an answer and several counterclaims. The Quadirs 

sought a declaratory judgment that they are entitled to (i) use 

the driveway for all purposes for which streets and ways are 

commonly used in the town, (ii) develop lot 10E for residential 

purposes, and (iii) improve the easement by bringing the 

driveway up to code and making it safe for emergency and other 

large vehicles to traverse. They also claimed that they had

acquired an easement by prescription (counterclaim II);8 and 

claimed that the plaintiffs had "trespassed" on the easement by 

placing boulders and other impediments along the driveway and

8 The judgment dismissed counterclaim II with prejudice and the 

Quadirs make no argument related to it on appeal.
7

constructing an addition to their home that encroached upon the 

easement (counterclaim III).

Certain issues were resolved at summary judgment; the judge 

ruled that "in 1968, when the Bushnells conveyed to the Kanters 

Lot 3-B, implied within that grant was an easement for the 

benefit of Lot 3-B along the driveway that crossed Lot 3-A at 

that time." The judge also ruled that the defendants' "latest 

ANR parcels" -- lots 10D and 10E -- have easement rights and 

that trial would determine their scope and extent.

The judge stated that following the summary judgment

ruling, four issues remained for trial: (1) the location of the 

implied 1968 easement; (2) whether that easement included the 

right to construct and access a single-family residence on lot 

10E; (3) whether plaintiffs had unreasonably interfered with the 

Quadirs' rights under that easement; and (4) whether the

plaintiffs had unreasonably interfered with the Quadirs' rights 

under the 1958 driveway easement. After trial, the judge 

concluded that the implied 1968 easement was in the same 

location as the 1958 easement; that the notation on the 1968 

plan that "Lots 3-C and 3-B" are not separate building lots 

points out only that lot 3-B was not at the time of conveyance a 

lawful separate building lot but could become so after the 

expiration of the deed's express restriction; and that the 

Quadirs had proved that the Bushnells and the Kanters intended 
8

the 1968 easement to be "for such purposes that are reasonably 

necessary for construction of (and later access to) a singlefamily residence on Lot 3-B." The judge also concluded that the 

width of the driveway is presumed to be "a convenient width for 

all the ordinary uses of free passage to and from [the 

landlocked] land" (quotation omitted). Finally, the judge held 

that the plaintiffs had not yet interfered with the Quadirs'

1968 easement and that although the plaintiffs had interfered 

with the Quadirs' 1958 easement rights in two respects, those 

impediments had been removed. The judge rejected the argument 

that the plaintiffs' refusal to agree to improvements to the 

driveway suggested by a landscape architect constituted

interference with the driveway easement where the plan did not 

show the minimum requirements needed to assure safe access to 

lot 10D and the mansion. He also concluded and declared that 

the Quadirs' right to use and maintain the 1958 easement 

included the right to place gravel, clear brush and limbs, 

change the easement's grade, or realign it for travel-safety 

reasons, so long as the improvement is "reasonably necessary for 

enjoyment of the dominant estate" and "does not 'unreasonably 

increase the burden on the servient tenement [quotation 

omitted]." Finally, the judge concluded that the Quadirs have 

the right to widen the easement "if reasonably necessary for the 

enjoyment of [the dominant estate] and so long as such 
9

improvements do not unreasonably increase the burden of the 

driveway on [the servient estate]."

Discussion. "We review a grant of summary judgment de novo 

to determine whether, viewing the evidence in the light most 

favorable to the nonmoving party, all material facts have been 

established and the moving party is entitled to judgment as a 

matter of law." Assad v. Sea Lavender, LLC, 95 Mass. App. Ct. 

689, 693 (2019) (quotations omitted). After trial, we review 

factual findings for clear error; a judge's findings of fact 

"must stand if warranted on any view of the evidence and all 

reasonable inferences therefrom." Norton v. West, 8 Mass. App. 

Ct. 348, 350 (1979). See Blakeley v. Gorin, 365 Mass. 590, 600 

(1974) (specific finding adequately supported by the evidence 

must be accepted "as final and true" [quotation omitted]). "We 

review the judge's determination regarding the existence of an 

easement in private ways under a 'clearly erroneous' standard." 

Perry v. Nemira, 91 Mass. App. Ct. 12, 16 (2017). We review 

questions of law de novo. Trace Constr., Inc. v. Dana Barros 

Sports Complex, LLC, 459 Mass. 346, 351 (2011).

We reach only the issues argued by the parties in their 

briefs. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 

Mass. 1628 (2019).

1. The 1968 implied easement. The judge found that the 

Quadirs have an easement by implication over the driveway on lot 
10

3-A, in the same location as the 1958 driveway. In essence the 

plaintiffs argue that there was no need for the judge to declare 

that there was an implied easement created by the 1968 

conveyance of lot 3-B to the Kanters because "[w]ith an 

expressly granted legally and physically existing driveway 

access easement benefitting and leading to lot 3-B in place, 

there was no basis in fact or law for creation of another one in 

the same location" in 1968. They further argue that "the 

Kanters' right to use the 1958 Easement for access to and egress 

from Lot 3-B, which was appurtenant to lot [B1] from which it was 

derived, was included in the conveyance of Lot 3-B to them. No 

additional easement could have been created in the same location 

and for the same purpose in 1968."

There can be no question that the portion of lots 10E and 

10D that is comprised of lot B2 has an express easement pursuant 

to the 1958 deed. That easement did not change when lot 3 was 

divided into lots 3-A and 3-B. Moriarty and McPhillips do not 

contend otherwise. And it is true that the deed that created 

the original driveway easement indicates that the driveway 

easement also benefitted lot B1. However, when lots 3-A and 3-B 

were held as a single lot by a common owner, the single lot 

could not have an easement over itself. But, as the judge 

noted, "[a]n implied easement (also known as an 'easement by 

implication') can be created by operation of law when the 
11

ownership of a unified property is severed into two adjacent 

parcels." Lavoie v. McRae, 102 Mass. App. Ct. 14, 19 (2022). 

"The controlling question is whether the circumstances of the 

severance demonstrate that the parties intended that the owner 

of one of the resulting parcels be able to make some use of the 

other parcel even though no express easement was recorded. . . .

Such an intent generally will be found only where the parties 

seeking to benefit from the easement can prove that it is 

'reasonably necessary' for their use and enjoyment of their 

land." Id. at 19-20, quoting Supraner v. Citizens Sav. Bank, 

303 Mass. 460, 464 (1939). Here, lot 3-B would be landlocked 

without an easement over lot 3-A. "Where absolute physical 

necessity is shown, such proof alone generally is sufficient to 

find that an implied easement was created." Lavoie, 102 Mass.

App. Ct. at 20.

The plaintiffs point out, however, that when lot 3-B was 

separated from lot 3-A, lot 3-B was granted a sewer and water 

easement over a portion of lot 3-A, connecting Bushnell Drive 

directly to lot 3-B without the need to traverse the U-turn or 

any portion of the driveway.9 Indeed, the driveway was not even 

9 The deed separating lot 3-B from lot 3-A provided, for the 

benefit of lot 3-B, an express right "to [i]nstall and maintain 

sewer and water pipes within that portion of Lot 3-A shown as 

Twenty (20) foot sewer and water easement, but in so doing, the 

grantees or their successors in title must restore said premises 

to the condition in which they found them."
12

shown on the 1968 plan referred to in the deed that granted lot 

3-B to the Kanters. Thus, the plaintiffs in effect contend that 

we should apply the canon of construction "inclusio unius est 

exclusio alterius," that is, inclusion of one thing is an 

implied exclusion of another. See Miles-Matthias v. Zoning Bd. 

of Appeals of Seekonk, 84 Mass. App. Ct. 778, 789 (2014). Cf. 

Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct. 19,

22 (2021) (canon "must be applied with caution"). In other 

words, because the drafters provided a utility easement, we 

understand the plaintiffs to argue, they could not have intended 

to include any other easement.

The judge, however, appropriately focused on other factors. 

He noted the trial evidence that indicated it was the Kanters'

intent to construct a home on lot 3-B "separate from the 

Mansion," albeit after 1978, and found that such intent is in 

fact supported by the water and sewer easement, which would make 

development easier. In these circumstances, where the sewer and 

water easement served a very specific purpose unrelated to 

access by vehicle, we agree with the judge that the inclusion of 

the sewer and water easement did not demonstrate an intent to 

eschew an access easement. The parties agreed that, at the time 

the lots were separated, the driveway ran across the bottom of 

lots 3-B and through lot 3-A, was actively used to access all of 

lot 3, and that lot 3-B had no alternative means of egress. The
13

deed, plans, and affidavits support the judge's conclusion that 

the parties intended that lot 3-B would benefit from an easement 

across lot 3-A and, thus, we affirm the judge's conclusion that 

an easement by implication arose over lot 3-A for the benefit of 

lot 3-B when the lots were separated.

2. Overburdening the easement. The plaintiffs argue that 

the judge erred in concluding that the use of the implied 

easement to build a single-family residence on lot 3-B would not 

overburden or overload10 the easement. "To overburden an 

easement means to use it 'for a purpose different from that 

intended in the creation of the easement.'" Kubic v. Audette, 

102 Mass. App. Ct. 228, 230 (2023), quoting Taylor v. Martha's 

Vineyard Land Bank Comm'n, 475 Mass. 682, 685 n.11 (2016). "It 

is true that an easement granted in general and unrestricted 

terms is not limited to the uses made of the dominant estate at 

the time of its creation, but is available for the reasonable 

uses to which the dominant estate may be devoted." Kubic, supra

at 231, quoting Hewitt v. Perry, 309 Mass. 100, 105 (1941).

10 The term "overload" refers to circumstances where an easement 

is used to serve land other than that to which the easement is 

appurtenant. See Taylor v. Martha's Vineyard Land Bank Comm'n, 

475 Mass. 682, 685 n.11 (2016). Although the plaintiffs 

generally assert that construction of a single-family home would 

also "overload" the easement, they have made no separate 

argument in support of their contention, and we consider it 

waived.
14

When lot 3 was created, the other lots on the January 1968 

ANR plan were divided into much smaller residential lots. That 

lot 3 was further divided could not have been unexpected. The 

parties agreed that lot 3-B was zoned as a single-family 

residential lot under the town's zoning bylaws in 1968. Nothing 

seemingly would have prevented constructing a house on lot 3-B 

after October of 1978. Whether we look at 1958 when lots B1 

(3.19 acres) and B2 (7.21 acres) were created, or the January 

1968 plan that shows lot 3 as substantially larger than the 

other lots, or the July 1968 plan showing the division of lot 3 

into lots 3-A and 3-B with the specific notation that lot 3-B 

would be conveyed to the abutters and benefit from a water and 

sewer easement, we cannot agree that the addition of a singlefamily home to lot 10E is inconsistent with "normal development"

or what "might have been anticipated" for the property. See 

Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 83-84 (2004). Where 

the evidence credited by the judge indicates that the purpose of 

the transfer of lot 3-B to the Quadirs' predecessor was for the 

eventual construction of a single-family home, we conclude that 

the proposal to use the driveway to access a single-family home 

on lot 10E does not overburden the easement.

3. Right to realign and widen the driveway. Although they 

do not quibble with much of what the judge declared to be the 

scope of the defendants' easement, the plaintiffs contend that 
15

the judge erred in concluding that the Quadirs may "realign" and 

"widen" the driveway if "reasonably necessary for enjoyment of 

Lot B2 and so long as such improvements do not unreasonably 

increase the burden of the driveway on the owners of Lot 3-A."11 

The plaintiffs contend that the defendants may not relocate the 

1958 easement by realigning it and widening it without the 

consent of the owners of the servient estate. See M.P.M. 

Bldrs., LLC v. Dwyer, 442 Mass. 87, 90 (2004) (discussing the 

Restatement [Third] of Property [Servitudes] § 4.8[3] [2000], 

which permits a servient estate to make reasonable changes in 

the location or dimensions of an easement and noting that 

§ 4.8[3] is a default rule, "to apply only in the absence of an 

express prohibition against relocation in the instrument 

creating the easement and only to changes made by the servient, 

not the dominant, estate owner" [emphasis added]).

We disagree that, by declaring that the Quadirs had the 

right to "realign" and "widen" the easement, the judge 

authorized the Quadirs to "relocate" the easement. As the judge 

noted, it is well-established that the holder of an easement has 

the duty to make repairs and improvements necessary for 

enjoyment of the easement, so long as the burden on the servient 

11 The plaintiffs concede in their reply brief that they do not 

challenge the defendants' right to grade and make physical 

improvements to the driveway within the boundaries of the 1958 

easement.
16

estate is not unreasonably increased. See Guillet v. Livernois, 

297 Mass. 337, 340 (1937) (right of way easement held to include 

right to make it "passable and usable for its entire width, 

having due regard to the rights and interests of others," 

following from "general principle that when an easement or other 

property right is created, every right necessary for its 

enjoyment is included by implication" [quotation omitted]).

Where the easement consists of a right of way, the easement 

holder has the right to use the surface for passing and 

repassing; thus, repairs and improvements necessary for 

enjoyment of this right of way may include leveling, graveling, 

ploughing, paving, and other improvements necessary to make the 

way passable and usable in a reasonably safe manner. See 

Chatham Conservation Found., Inc. v. Farber, 56 Mass. App. Ct. 

584, 589 (2002) ("the right to pass and repass has been found to 

include all rights reasonably incidental to the enjoyment of the 

right to pass, including the right to make reasonable repairs 

and improvements to the right of way"). See also Mt. Holyoke 

Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513, 514 (1937)

(holder of stairway easement permitted to make repairs that 

extended beyond stairway as that was deemed reasonably necessary 

in order to make stairway passable and usable); Barlow v. 

Chongris & Sons, Inc., 38 Mass. App. Ct. 297, 300 (1995) (holder 

of driveway easement had right to pave easement and install 
17

guard rails); Tindley v. Department of Envtl. Quality Eng'g, 10 

Mass. App. Ct. 623, 627-628 (1980) (where right of way easement 

to river impassable at low tide, easement holder entitled to 

build foot ramp over right of way as reasonably necessary to 

permit intended use).

There was no error in the judge declaring that the Quadirs 

have the right to realign and widen the roadway of the easement 

to the extent that this may be reasonably necessary for safe 

passage and as long as such realignment and widening does not

unreasonably burden the servient estate. See Hodgkins v. 

Bianchini, 323 Mass. 169, 172-173 (1948) (1820 grant of right of 

way in "cart road" did not limit way to width of vehicles then 

in common use); Glenn v. Poole, 12 Mass. App. Ct. 292, 296 

(1981) (flaring out roadway at entrance for safety was within 

dominant estate's right to make necessary repairs and 

improvements and so minor as to not inconvenience servient 

estate). However, as the judge pointed out, whether and to what 

extent realigning and widening is reasonably necessary for 

enjoyment of the easement, and whether any such improvements
18

will unreasonably increase the burden on the servient estate, 

have not been established or determined.12

Judgment affirmed.

By the Court (Massing, 

Ditkoff & Singh, JJ.13),

Clerk.

Entered: August 28, 2023.

12 The plaintiffs contend that the judge erred in concluding that 

they had interfered with the defendants' 1958 easement. Where 

the judge concluded that any impediment to the easement had been 

removed and declined to issue any orders on this issue, the 

matter is moot and we need not determine whether the judge's 

initial factual findings on this issue were correct.

13 The panelists are listed in order of seniority.