Civil action commenced in the Land Court
Department on September 13, 2017.
The case was tried before Keith C. Long,
Jason R. Talerman
for the defendants.
Mark J. Lanza for
ENGLANDER, J. Plaintiffs FOD, LLC (FOD), and Brenda Knight,
are seeking to develop a mostly undeveloped, 13.7-acre parcel in Mansfield
(site) for use as a private elementary school.
To do so they will have to use a short, fifty-foot wide easement
(easement) to connect the site to an existing, public cul-de-sac. The easement runs over two abutting
properties, owned by the defendants, the Murawskis and the Whites. The plaintiffs brought this lawsuit, seeking
a declaration that the proposed school use was consistent with the easement,
and would not overburden it. The
defendants opposed, arguing that the proposed school use will result in
extensive additional traffic, and is beyond the contemplation of the parties to
the original easement grant. The case
thus presents recurring issues regarding how to determine what limits there may
be on the use of an easement. After a
bench trial, the judge ruled for the plaintiffs, and the defendants
appeal. We affirm.
Background. This is the second Land Court lawsuit
regarding the easement; the same judge decided both cases. In the first, the abutters (predecessors to
the defendants) challenged the existence of the easement; the judge ruled that
an implied easement did exist, having been agreed to between a prior owner of
the defendants' properties, and the Knights.
This court affirmed. See Perillo
v. Knight, 86 Mass. App. Ct. 1107 (2014) (Knight I). The facts set forth herein are taken from the
judge's findings in Knight I, as well as his findings in this matter.
James and Brenda Knight acquired the
13.7-acre site in 1974. At that time,
the site had no direct access to any public roadway, but instead benefited from
a roadway easement (right of way) over the abutting parcel to the north, which
allowed access to nearby roadways. The
abutting parcel was owned by one Nicholas Harris.
Harris sought to subdivide and develop his
parcel in 1989. Because the Knights'
right of way across Harris's property interfered with Harris's ability to
develop his parcel, Harris entered into negotiations with James Knight. The result of these negotiations was that the
Knights relinquished their right of way across Harris's property, and in
return, received the short, fifty-foot wide easement that is the subject of this
The easement was not created by an express
grant; rather, in Knight I the judge ruled that the easement was agreed to by
Harris and James Knight, and implied from various sources. One such source was Harris's subdivision
plan, filed in 1989 and approved by the Mansfield planning board, which plan
showed the easement. The subdivision
plan showing the easement is expressly referenced in the deeds of each
Harris's 1989 subdivision divided his
property into sixteen new lots, serviced by new roads that were built on
Harris's property. As shown in Harris's
subdivision plan, the easement runs from the Knights' property line to the end
of a cul-de-sac on Harris's property.
The easement is fifty feet wide and very short. On one side, it runs approximately thirty
feet from the Knights' property across the Murawskis' property; on the other
side, approximately five feet across the Whites' property. The subdivision roads shown on the plan have
since been accepted by the town, and are public ways.
As noted, the easement at issue was
negotiated between Harris and James Knight.
As to the purpose of the easement, the judge found that James desired
the easement so that he could eventually develop his property, and that James
expressly requested a fifty-foot wide easement so that it could be used for
that purpose. The judge also found that
Harris and James Knight placed no restrictions on the use of the easement, or
on the use of the Knights' land. He
cited Harris's unequivocal testimony in support of this finding. The judge
concluded: "All that was ever said
to the grantor of the easement, Nicholas Harris, or to the [p]lanning [b]oard
reviewing the easement in connection with Mr. Harris'[s] request for approval
of his subdivision plan, was that Mr. Knight needed a [fifty-foot] right of way
'because he intended to develop the property at a later date' with no statement
of, or limitation on, what that development might be."
Many years after the easement was granted,
in 2007, Brenda Knight submitted a plan for a residential subdivision of the
site, but the plan was not approved.
Thereafter, FOD approached Brenda Knight about locating a Montessori
school on the site. In 2009, the
defendants' predecessors brought the prior action against Brenda Knight,
challenging the existence of the easement; that action culminated in the
judgment described earlier, confirming the easement's existence. See Knight I, 86 Mass. App. Ct. at 1110. Late in the litigation of Knight I, the abutters
also raised the argument that even if the easement did exist, the proposed use
of the Knights' property would overburden the easement -- that is, that the
creators of the easement had, at most, contemplated the continuing residential
development of the neighborhood, but could not have foreseen the development of
a school and the attendant school traffic across the easement. In his decision in Knight I, the judge ruled
that he did not have sufficient information regarding the proposed school
design or the traffic it might generate to decide the overburdening issue, and
commented that "[t]he challenge may be raised in another lawsuit."
Thereafter, in 2017 the plaintiffs filed
the instant suit, seeking a declaratory judgment that the proposed school use
would not overburden the easement. At
trial, the plaintiffs presented a proposed plan for the site that showed the
school, the road leading from the easement to the school, and the area where
the school children would be dropped off and picked up. The plan showed approximately 750 feet of
road on the site, extending from the property line adjacent to the easement to
the drop-off area, and also showed parking areas next to that road. The plaintiffs also presented testimony
regarding the anticipated school drop-off and pick-up procedures; this
testimony explained that the school already exists, in smaller form, at another
location in Mansfield. The principal of
the school testified about the procedures then being employed, as well as the
anticipated schedule and procedure for the new school. The principal also described how the school
traffic procedures would coordinate and stagger the student drop-offs and
pick-ups, which the judge found were "designed to eliminate
congestion," and "to ensure smooth and swift unloading and loading of
The plaintiffs also presented expert
testimony on the likely traffic impacts of the proposed school. The plaintiffs' expert's firm had observed
the traffic flow and drop-off and pick-up procedures at the existing school,
and the expert's testimony relied upon these observations. The plaintiffs' expert estimated that the
proposed school would generate an additional 462 vehicle trips over the
easement per day that the school was in session. The expert also testified that, based upon
the observations of the existing school's traffic flow and traffic control
procedures, and the approximately 750 feet of road separating the pick-up and
drop-off area from the property line and the easement, any traffic queues that
did occur at the proposed larger school would not extend onto the
The defendants also presented an
expert. He did not observe the
operations of the existing school, but he calculated, based on the Institute of
Transportation Engineers trip generation manual, that a private school of the
proposed size would generate 800 additional trips daily. The defendants' expert opined that poor
conditions, reluctant children, and the large delivery trucks necessary to
provide supplies to the school could disrupt the flow of traffic and lead to
congestion in the neighborhood. The
expert also opined that the plaintiffs' claimed pick-up and drop-off efficiency
could not be achieved at the larger school site. He opined that substantial queueing would
occur, and that traffic queues would likely back up onto the easement and into
the subdivision at times.
The judge found that the creators of the
easement had "certainly anticipated further development," and that
the creators had neither reduced to writing nor agreed to any restrictions on
the easement. He noted that the proposed
school use was allowed as of right in light of the Dover Amendment, G. L.
c. 40A, § 3, and he concluded that the proposed use was a "normal"
and reasonably anticipated development of the site and would not overburden the
easement. In regard to the traffic
impacts of the proposed school, the judge found, after considering the
testimony of both experts, that school traffic would not result in queues or
back-ups onto the easement itself. The
judge further found that "[p]rivate vehicle use will certainly increase
over what it was before (there was only the Knights' house on the parcel at the
time), but it will not increase in a way that materially affects the easement,
and will not overburden it."
Limitations on the easement. The
defendants first challenge the judge's finding that there are no limitations on
the grant of the easement that would prevent the school use. Easements may be expressly limited in scope
by the terms of their grant. See Parsons
v. New York, N.H. & H.R.R., 216 Mass. 269, 273 (1913). The judge found that no express restriction
was placed upon the easement and "that Mr. Knight, like all landowners in
similar situations, intended to reserve all of his development options, and the
easement grantor, Mr. Harris, had no objection to that." The defendants argue that this finding was
clear error, and that Harris's testimony established that the parties only
intended -- and agreed -- that the easement would be used for access to a
On appeal, we review findings of fact for
clear error, and review any conclusions of law de novo. See Kitras v. Aquinnah, 474 Mass. 132,
138-139, cert. denied, 137 S. Ct. 506 (2016).
The burden to establish clear error is a heavy one. We may only find clear error where the
judge's findings are not "supported on any reasonable view of the
evidence, including all rational inferences of which it was susceptible"
(quotation omitted). Buster v. George W. Moore, Inc., 438 Mass. 635, 642
Here, the judge's finding is not clearly
erroneous, but rather is well supported by Harris's testimony and by an
understanding of the circumstances of the transaction. While Harris's testimony indicated that
residential development might be a likely use, Harris testified that he and
Knight never discussed limiting or restricting the scope of the easement. We think it particularly relevant that the
easement was granted in return for the Knights relinquishing a significantly
more invasive right of way over Harris's parcel. Harris needed that concession to develop his
parcel, and would not have been in a position to limit the easement that he was
granting in return. Brenda Knight's
testimony does not contradict Harris's, particularly where she did not
participate in the negotiations.
Normal development. The
defendants next argue that the proposed school use of the site will overburden
the easement because it is outside the scope of the implied grant, in that a
school use does not qualify as "normal development" under the
circumstances. Again, we disagree.
Where an easement is not expressly limited
in scope, its use is nevertheless limited to "the reasonable uses to which
the dominant estate may be devoted."
Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 82 (2004) (Cerasuolo),
quoting Parsons, 216 Mass. at 273. Here,
at the time the easement was granted, only one structure existed on the site,
and the easement experienced relatively little use. However, the scope of the easement is not
constrained by the circumstances present at the time of its grant. See Labounty v. Vickers, 352 Mass. 337, 345
(1967). The Restatement (First) of
Property § 484 comment b (1944) states:
of an easement created by implication is to be inferred from the circumstances
which exist at the time of the conveyance and give rise to the
implication. Among these circumstances
is the use which is being made of the dominant tenement at that time. Yet it does not follow that the use
authorized is to be limited to such a use as was required by the dominant
tenement at that time. It is to be measured
rather by such uses as the parties might reasonably have expected from future
uses of the dominant tenement. . . . It
is to be assumed that they anticipated such uses as might reasonably be
required by a normal development of the dominant tenement" (emphasis
The determination of what constitutes
"normal development . . . is largely a question of
fact." Cerasuolo, 62 Mass. App. Ct.
at 84. As used in the case law and the
Restatement (First) of Property, the concept of "normal development"
means development that was within the reasonable contemplation of the parties
at the time the easement was granted.
Drawing on prior Land Court decisions, the judge identified several
factors that are relevant to this determination, as follows:
"(a) did the
original parties to the easement anticipate further development of [the dominant]
parcel; (b) at the time of its creation, was the easement the parcel's sole
means of access; (c) was anyone already using the way described in the easement
(and if so, what was the nature and frequency of that use); (d) did the size of
the dominant parcel make its later development reasonably foreseeable; (e) at
the time of creation of the easement, were the dominant and servient parcels
zoned for the later-proposed use; (f) are there any express restrictions on use
of the easement; and (g) at the time of creation of the easement, did the
dominant parcel have any natural features that would limit its
We do not suggest that the above list is
exhaustive, but it is a useful distillation of relevant considerations. Here, the judge addressed each of the above
factors, and concluded that they weighed in favor of the proposed school use
being reasonably contemplated at the time the easement was granted. In ruling as he did the judge made several findings
of fact that are essentially unassailable:
the site is substantial in size; there were no alternative access
points; there were no natural features that would have limited the site's
development into a school; and there were no express restrictions noted in the
deeds of the subservient (abutting) parcels.
The judge also found, as discussed above, that no restriction on the
easement was contemplated during negotiations, and that James Knight had
negotiated the easement with potential future development in mind. All of these findings favor the plaintiffs.
The defendants argue that a school was an
unforeseeable use in a neighborhood zoned for residential uses only, but the
judge was correct in rejecting this contention as well. General Laws c. 40A, § 3, has provided an
exception to local zoning regulations for nonprofit educational organizations
since passage in 1975. That provision
of the so-called Dover Amendment predates the creation of the easement by
approximately fourteen years, and the development of the site into a nonprofit
school thus was permissible at the time the easement was created. The defendants contend that a use authorized
by an exception to local zoning is inherently abnormal, but as mentioned above,
"normal development" is "reasonably foreseeable"
development, and where the school use was authorized at the time, it was (at
least a school of the size at issue here) reasonably foreseeable.
Finally, the judge also considered the
impacts of additional traffic over the easement. The proposed change in the use of the
easement, both in frequency and character, is plainly a relevant factor in
evaluating whether a proposed use was within the reasonable contemplation of
the parties to the easement grant. As to
the traffic issue, the judge credited the plaintiffs' expert, and concluded
that while there would be considerable additional traffic, that traffic would
still only briefly pass over the easement, and would be unlikely to queue onto
the easement. The judge also noted that the nature of the use -- automobile
traffic and some delivery trucks, but no school buses -- would not change. He accordingly concluded that the proposed
school use would not "materially affect" the easement. Although the defendants challenge the judge's
factual findings, the judge did not clearly err in crediting the plaintiffs'
expert's testimony. The judge's
evaluation of competing expert testimony involved an assessment of credibility
and weight, both of which were within the province of the judge. See New England Canteen Serv., Inc. v.
Ashley, 372 Mass. 671, 675 (1977) (trial judge in best position to judge weight
and credibility of competing evidence); North Adams Apartments Ltd. Partnership
v. North Adams, 78 Mass. App. Ct. 602, 607 (2011) ("Deference is also
given to the trial judge's credibility assessments of experts"). Moreover, here the plaintiffs' expert
testified with the benefit of actual observations of the existing school
nearby, whereas the defendants' expert did not.
In short, while the proposed project will
result in substantial additional use of the easement, on the basis of the facts
found we cannot say as a matter of law that such use was not reasonably
foreseeable, and we perceive no error in the judge's conclusion that the
proposed school is "normal development" within the contemplation of
the easement grant. See Parsons, 216
Mass. at 273; Cerasuolo, 62 Mass. App. Ct. at 82.
Increased frequency of use.
Finally, the defendants argue that the proposed school will overburden
the easement because the increased use will simply be too much -- that it will
be "tantamount to a 'nuisance,'" citing Southwick v. Planning Bd. of
Plymouth, 65 Mass. App. Ct. 315, 319 n.12 (2005).
The judge rejected this contention as
well, and we perceive no error. At the
outset, we note that while the cases do say that the extent of travel across an
easement is "not without limits," Hodgkins v. Bianchini, 323 Mass.
169, 173 (1948), it is not clear that a "nuisance" overburdening
argument exists independently from the issue we addressed above -- whether a
proposed use is within the scope of the reasonably foreseeable development of
the site at the time that the easement was granted. See Lane v. Zoning Bd. of Appeals of Falmouth,
65 Mass. App. Ct. 434, 440 (2006). Put
differently, where as here the proposed use of an easement was reasonably
foreseeable, including in nature and frequency, see supra, it is difficult to
see how that use could nevertheless constitute a nuisance that the servient
parcels could prevent.
In any event, the proposed use cannot be
determined to be a nuisance under the circumstances, based upon the record and
the facts found by the judge. The
defendants' properties abut a public way, and the traffic at issue would
pass over that public way before crossing the easement. The defendants do not suggest how such
traffic can meet the standards for a nuisance.
The judge further found "no evidence, and . . . no likelihood, that
anyone will park on the easement or pause there more than momentarily." The proposed increase in vehicle traffic,
while marked, does not "sink to the level of an actionable
nuisance." See Lane, 65 Mass. App.
Ct. at 440 ("That development [of the lot], contrasted with its present
status, will result in [more frequent use of the easement] is a virtual
certainty; but this by itself does not constitute overburdening").
 Brenda Knight.
 Amy C. White (together with James N.
White, Jr., Whites); and Kirsten R. Murawski and Stephen J. Murawski, III
 We sometimes refer to James Knight as
James or Knight.
 Harris's trial testimony from the
first case was introduced at trial in this case, by agreement; James Knight
passed away before trial in the first case.
 In this case, the defendants filed a
pretrial motion to dismiss, alleging that the matter was not ripe. They contend on appeal that the matter will
not be ready for a declaratory judgment until FOD secures further approvals in
the development process. The defendants
also argue that the plaintiffs must first exhaust their administrative remedies
by securing the required municipal approvals and permits. The judge denied the motion and we perceive
no error. The rights of the parties are
clearly in dispute with respect to the plaintiffs' proposed use of the
easement, and the facts regarding the proposed site layout were sufficiently
concrete for the judge to enter a declaratory judgment. See G. L. c. 231A, §§ 1, 9; Boston v. Keene
Corp., 406 Mass. 301, 305 (1989) ("There is a measure of discretion in
deciding whether a case is appropriate for declaratory relief").
 As the court explained in Southwick v.
Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 n.12 (2005), the term
"overburdening" is sometimes used to describe different
concepts. In this case the defendants'
contentions addressed two of those concepts:
(1) that the proposed use of the dominant estate is beyond the scope of
the easement grant, and (2) that the proposal will result in use of the
easement that amounts to a nuisance. See
 The defendants argue that the judge
went beyond the stipulated facts by considering that the plaintiffs could
adjust some part of their pick-up and drop-off procedure if queueing onto the
easement actually occurred. We do not
agree that this amounted to disregarding the parties' stipulation. The stipulation that the determination would
be based on the site and proposed building configuration does not preclude the
judge from pointing out that modifications would be feasible within the
constraints of that design.
 The defendants cite the rules and
regulations governing the subdivision of land for the town of Mansfield in
effect during the late 1980s, which defined "minor street" as a
street that "will be used primarily to provide access to abutting lots and
which will not be used for through traffic nor carry more than three hundred
(300) vehicles per day." The
defendants contend that the subdivision roads were constructed to be minor
streets, according to the subdivision plan submitted by Harris. Regardless, the public ways are not limited
in use, and their design does not bear materially on whether the proposed
school use will overburden the easement.