COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT LAND COURT DEPARTMENT

DOCKET NO. 254067

BRISTOL, SS LANDING AT SOUTH PARK CONDOMiNIUM ASSN., Pl aintiff / D efendant- inCounterclaim

-l
* *

\/
BORDEN LIGHT MARiNA, INC.,

nLEcoPf

Defendant/Piaintiff-in-

Counterclaim

MEMOR.I{NDUM OF LAW OF PLAINTIFF I DEFENDANT-IN-COUNTERCLAIM. ARGUMENT

I.

The Marina has violated the Erosion Controi Easement and Visual Easement.
*The basic principle governing the interpretation of deeds is that their

meaning derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument construed when
necessary in the light of the attendant circumstances." Sheftl

v.

Lebel, 44

Mass. App. Ct. 175, 179 (1998). "Similarly, with respect to an easement created by a conveyance, ltlhe extent of [the] easement .,.. is fixed by the conveyance, Restatement of Property S 482 (19aa\; and the "language (used)... is the primary source lor the ascertainment of the meaning of [the]

conveyance." Id. s 4s3 comment (d), cited in shefti ApP. Ct"

v. Lebel, 44 Mass.

atl79'
i

The key inquiry then is the explicit language of the easements as

set

forth in ai1 relevant deeds.

On September 30, 1986, the Green River Realty Trust conveyed Lot 3,

comprising 3.51 acres, to John C. Lund and Brian R. Corey, by

deed

recorded in the Fall River Registry in Book 1724, Page 301. This
conveyance was made subject to two easements for the benefit of Lots
1 and 2, set forth

in the deed to Lot 3 as follows:

"subject to a visual easement for the benefit of Lot 1 and Lot 2 on that plan of iand hereinabove mentioned under the terms of which no structure shall be erected above nineteen (19) feet Mean Sea Level on that portion of Lot 3 directly to the west of Lot 1 and Lot 2. Excluded from the definition of structure and

permitted above nineteen (19) feet Mean Sea Level shall be pilings supporting floats and piers, hvac exhausts andlor intake which shall be reasonably screened, trees, shrubbery, picnic tables and things or like nature and subject further to a twenty (2O) foot wide easement for the benefit of Lots 1 and 2 for construction and maintenanee of drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier." (Emph. added) Amended Complaint fl 11; Tr. Exh. 1. On September 30, 1986 the Green River Realty Trust conveyed Lots
and.
1

2,comprisin g of 7.73tacres, to the Landing at South Park, inc.,

a Massachusetts business corporation since dissolved, by a deed

recorded in the Fall River Registry in Book 1724, Page 303' This
conveyance included the rights of tu'o easements over Lot 3 for the

benefit of Lots 1 and 2, set forth in said deed n'hich provided as

follows:

"Appurtenant to this conveyance is the benefit of a visual easement over a portion of Lot 3 on that plan of land
?

hereinabove described under the terms of which no structure shall be erected nineteen (19) feet above Mean Sea Level on that portion of Lot 3 directiy to the west of Lot 1 and Lot 2. Excluded from the definition of structure and permitted above nineteen (i9) feet Mean Sea Level sha1l be pilings supporting piers and floats, hvac exhausts andf or intakes, which shall be ieasonably screened, trees, shrubbery, picnic tables and things of a like nature and an easement for construction and maintenance of a public walk way bicycle path, for construction and maintenance of a drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier." (Emph. added). Amended Complaintl 12; Tr. Exh. 2. On September 30, 1986, John C. Lund and Brian R. Corey, as
owners of Lot 3, granted a perpetual view easement (the "Visual

Easement") to the Landing at South Park, Inc., the then owner of the Landing property and its successors, assigns, and lessees. Said

Visual Easement was recorded in the Fall River Registry in Book

7724, Page 3O6. Amended Complaint fl 13. Tr.Exh. 4.
Said Visual Easement provided that the grant was "the following

perpetual right and easement, in connection with the construction of

140 condominium units on the premises directly to the west of the

premises herein descriLred, which shall run with the premises as

hereinafter described for a view unobstructed by any structure in the

area 79'above Mean Sea Level on the premises being bounded and described as follows:
A parcel of land in Fall River, Massachusetts, located on the westerly side of Almond Street, bounded and described as follows, running:

WESTERLY:

South 59" = 53'- 55" West to the Mount Hope Bay; chance running

SOUTHWESTERLY: along the Mount Hope Bay to land now or

formerly of the King Phillip Boar Club; chance running
EASTERLY:

by land now or formerly of King Phillip Boat Club 96.44 feet; chance running

NORTHEASTERLY: bv lot 1 and lot 2 on the plan hereinafter

dlscribed to the point of teginning as herein
specified.

Being a portion Lot # 3 on that plan of land entitled: "Division of Land in Fall River, Massachusetts beionging to Green River Really Trust Scale: 1" :8O'Date: July 14, 1986, Prepared by: Site Work Associates, Inc. ,257 Bank Street, Fall River, Massachusetts", recorded with the Bristol County Fall River Registry of Deeds in Plan Book 79, Page 5O as deeded to Grantor by Instrument No. 15885 recorded with said Registry of Deeds on October 1, 1986. Excluded from the definition of the term structure as used in this Visual Easement and expressly permitted to occupy the area 19 fee above Mean Sea Level on the premises are pilings, supporting piers and floats, hvac exhausts and/or intakes which are reasonable screened, trees, shrubbery and picnic tables. Amended Complaint t[ 13, Tr. Exh. 13.

In addition to the easement reserved in the prior deeds, on

September 3O, i986 John C. Lund and Brian R. Corey granted the

Landing perpetual twenty (20) foot wide drainage, erosion and flood protection easement (the "Erosion'Control Easement") located along

the entire common property line between the Landing and the Marina. Said Easement was recorded in the Fall River Registry in Book 1724, Page 327. Amended Complaint fl 15, Tr. Exh.
Amended Complaint 1 15.
5.

Said Erosion Control Easement which was granted to the Landing at South Park, Inc. its sttccessors, assigns, and lessees:
"The follorving perpetual right and easement, in connection with the construction of a 14O condominium units on the

premises immediately adjacent to the premises herein described, which shall run with the premises, as hereinafter described, for construction and maintenance of a public walk way and bicycle path, for construction and maintenance of drainage systems and for construction and maintenance of a sloped, graded erosion and flood protection barrier, bounded and described as follows; provided, however, that this right and easement herein granted is not intended to preclude the Grantor, its successors or assigns, or others so entitled from using the premises hereby conveyed so long as such use does not interfere with the exercise of this right and easement.." Tr. Exh. 5.
a1-.

The Marina in excavating the graded sloped coastal bank and in constructing retaininq walis has violated the Erosion Control Easement. The language of the Erosion Control Easement unambiguously

provides the Landing with a twenly (2O) foot wide easement to construct and maintain a drainage system and a sloped, graded erosion control and flood protection barrier. While it is probably unnecessary to consider given the unambiguous language the attendant circumstances support a finding

that the Marina has violated said easement. At the time of the grants in
1986 the twenty foot easement area along the boundary line of the Marina

and Landing property consisted of a coastal bank that sloped down toward the water. At the top of the bank on the Landing property a condominium
complex was to be constructed. The easement area provided a location for

the condominium complex to locate a drainage system to control flow from

its property and to further grade the natural slope to protect the
condominium complex from potential erosion and flood protection from the
water down beiow. Portions of the Landing property near the top of the

bank and adjoining the easement area where in a V zone so the need for
flood and erosion protection barrier rn'as understandable.

The Marina has made the iveak argument that its excavation of the coastal bank and erection of wal1s was permitted because the Landing's
easement rights were non-exclusive. The easement permits the Marina to

use of the easement area but only "so long as such use does not interfere

with the exercise of this right and easement." Said language is consistent with common law principle that the owner of a servient estate may use the
land for purposes which are not inconsistent with the easement, Ampasoomian v. Atamian, 323 Mass. 319, 322 (1948), or which do not materially interfere with its use. Western Mass, E1ec., Co.

v.

Sambo's of

Mass., 8 Mass. App. Ct. 815, 818 (1979). Said interference however must
be so slight as to be reasonable in all circumstances. Yaeiian

v. Otsrien.

19 Mass. App. Ct. 733,735 (1985). The "right of use arising out of [the]

easement is superior to [the servient estate owner's] interest, and the

[servient estate owner] must avoid activities which are inconsistent with the

[dominant estate owner's] use of the easement." Texon. Inc. v. Hol]zoke

Mach. Co., 8 Mass. App. Ct. 363, 366 (1979t (refusing to allow servient
estate from demolishing its building in which easement holder had right to

maintain steam and electrical conduits).

The excavation of the sloped vegetated bank including the removal of

the entire easement area near building 3 cannot be considered so slight to constitute an incidental interference. New York Central Railroad Co.

as v.

AVer, 239 Mass. 7A $927) (finding a violation of an easement of passage of

light, air, and drainage where entire 10 foot rvide easement not avaiiable

and only a convenient part). As testified at triai the erection of the wall

restricts if not eliminates any use of the easement for drainage. Similarty, the excavation of significant portions, if not entire portions,
of the twenty foot easement area restricts the use of the easement for

erosion and flood control. By the terms of the easement the Landing was

entitled to the use of the entire easement area. While the Marina may

have

been permitted to make some use of the easement area, provided it did not

violate the Visual Easement, it was not permitted to eliminate portions of the easement area by excavation and erection of walls. New York Centrai Railroad Co.

v. Ayer, supra. The Marina's argument that the erection

of

walls may provide flood and erosion protection is hollow where almost the

entire area of the graded sloped bank was eliminated. The intention of the parties based on the language of the easement and the attendant circumstance was that the then existing sloped bank would be preserved
and utilized by the Landing for erosion and flood protection and drainage.

Further, the clear intent of the easement provided the Landing, not the
N{arina, with the property right to construct and maintain the sloped graded

barrier. The Marina's argument that the vertical wail it built should

function, if properly engineered, in a similar or comparable manner to

protect the Landing from flood waters is entirely irrelevant. The easement
does not grant the Marina the right to choose the means or design of the

flood control rvithin the easement. The grant of easement conveyed those

rights to the Landing. Only the Landing has the right to make the choice
between the substantive differences betr,veen the improperly engineered

walls, or for that matter any wall, as compared to a vegetated sloped and
graded area.

B.

The Marina blr its storaqe of boats and other activities has violated the Visual Easement The grant of the visual, or more appropriately, view easement

provided the Landing with an unobstructed view to the west, i.e ., over

Mount Hope Bay. The utilization of nineteen (19) feet Mean Sea Level as the
benchmark supports this interpretation given that the Landing property is at or near the nineteen (19) Mean Sea Level elevation. It is understandable

that the developer of the condominiums wanted to preserve for the

residents of the Landing the unobstructed water view. Patterson

v.

Paui,

448 Mass. 658, 663 (2OO7) (recogntzing common use of an easement to preserve scenic attributes of properff by preventing the owner of the servient estate from undertaking activities to impede the view of the

dominant estate).
The apparent contested issue as tJ the view easement is the

definition of the terrn *structure" as contained in the easement. The mere

fact that the parties differ today as to its meaning does not make the
easement ambiguous. See, Ci.tation Ins. Co.

v. Gomiz,426

Mass. 379,

381 (1e88). The term "structure" as contained in the easement should be construed in light of the limiting or exciuded words in the easement. Powers
66O,

v.

Freetown

- Lakevilie Reqional Sch. Dist. Comm.,392

Mass. 656,

n. B (1984) (courts rely on the doctrine of ejusdem generis to

"ascertain the correct meaning of rvords by timiting general terms in which

follow specific ones to matters similarly to those specified"). The easement specifically excludes from the definition of structure "pilings, support floats and piers, hvac exhausts andf or intake which shall be reasonably
screened, trees, shrubbery, picnic tables and things or like nature.,, The

exclusion of these terms necessarily imparts a broad definition of the terrn

structure and certainly not a restrictive meaning encompassing buiidings

or other fixed structures or even man made objects. Certainly, a picnic table is not a permanently affixed object and trees are not manmade

objects. If the Marina wanted to exciude stored boats or equipment

incidental to its storage operation from the definition of structure it should
have done so. The Marina was aware

in

1986 that

it planned to operate a

full service Marina which would include boat storage.

Also, supporting a broad interpretation is the definition of structure
as contained in Blacks Law Dictionarv at 1276 (5e ed. 19791which states:

construction, or any production or piece of work artificially up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind. (2) A combination of materials to form a construction for occupancy, use or ornamentation, whether installed on, above, or below the surface of a parcel of land.
(1) Any

Under this definition a boat would be included in the term

"strllctllre". Boats kept in the water at the Marina would not be violative of
the easement as they are kept in the water and are not on the Marina land
(Lot

3).i The boats stored on land, however, are subject to the restriction of

The visual easement which provides for a vierv unobstructed provides a restrictron agalnst any structure on almost the entire portion of the Marina propertl (Lot 3) excepting a smali portion tn the northerly end near Aimond Street. The visuai easement (Tr. Exh. 4) contains a metes and bounds description of the restricted Marina propert\'.

structures exceeding 19 MSL. Also, the stored boats are particularly

included with the term "structure" as thev are placed on stanchions for
storage and then covered with shrink

wrap. "Anything constructed or built"

(dictionary de{inition) is a structure but rvhether a particular thing constructed is within the meaning of the word as used in a statute, regulation, or contract depends upon the context." Scott
Appeal of Wellesley, 356 Mass.

v.

Board of

I5g,

161 (1969) (construing a swimming

pool as a structure under local by-law). Asiala

v. Fitchburg,

24 Mass. App.

Ct. 13 (Lg87l (an earthen slope required to provide lateral support for a
roadway constitutes a "structure" which may not encroach on land of

another without a license of written easement). Given the context of the

easement and the undisputed intent of the easement to provide the Landing an unobstructed view of the water it is inconceivable that stored boats that

block views are not considered "structures" within the meaning of the easement. Where the Marina knew at the time of the execution of the
easement that

it intended to store boats on the land it would have excluded

if that was the intent.

same from the definition

Other objects such as the boat lift and other equipment must also be
considered as structures.
ll

Based on the pending iitisation. unclean hands and the failure to establish preiudice. Defendant has not met its burden to establish laches.

Despite the intentional and knowing violation of the Erosion Control Easement, the Marina seeks to prevent enforcement based on the equitable
ciefense of laches.

10

In order to assert the equitable defense of laches one must have

hands and act in good faith. See, Santaqate

clean

v.

Tower, 64 Mass. App. Ct.

324,334-335 (2005). The Marina blatantly violated the 2000 preliminary

Injunction issued by this Court in performing construction work within

20'easement and in erecting
vra11s

the
in a

in 2OO2,2006, and most significantly

2AO8l2OO9. It is difficult to conceive how a party who blatantly violates

court order can be considered to have clean hands. Additionally, the Marina bullied the Landing with threats to take the Landing's property if
the Landing objected. The Marina performed excavation of a coastal bank

without required approval from DEp and without obtaining a building

permit from the City of Fall River. The Marina failed to retain a structural
engineer as required by the State Buiiding Code to engineer the walls.

John Lund, President of the Marina is an attorney and was previously

employed as a clerk at the Bristoi Superior Court. "The equitable defense of laches will [only] bar a party from asserting
a claim

if the party

so unreasonably delayed

in bringing the claim that it

caused some injury or prejudice to the defendant. polaroid corp. v. Travelers Inden. co. , 414 Mass. 747, Ts9-760 (rggsl. In other words
[i]aches is an unjustified, unreasonable and prejudicial delay in raising a

claim... not mere delay that works as a disadvantage to another. Colon)r of

wellfleet v. Harris, 71 Mass App. ct. s22,531 (2008). Defendants have

the burden of proof to establish all the elements of laches. Three Sons, Inc..

v.

Phoenix Ins., Co.,357 Mass.

27I,278 (l9TOl.

1i

There was no delay in bringing suit in this case given that this case

has been pending since rggg. Also, the same actions performed in
2OO8l2OOg

in excavating the coastal bank to erect a wall were complained

of

of and brought to the Court's attention in 2000 resulting in the issuance

the preliminary injunction. The doctrine of laches has no applicability and there can be no delay in bringing the claim where the complained of acts
v/ere performed after suit was filed

in

L999 and were subject to a court

order prohibiting activities. While the Landing disputes it unreasonably delayed instituting its

claim, any alleged delay did not prejudice the Marina. The Marina believed

it could do whatever it wanted irrespective

of court orders or legal

.

requirements such as the need to obtain building permits. Without notice

or asking permission the Marina began the excavation of the coastal bank

within the easement area. The actions of the Marina are analogous to a
criminal stating that if the police had told him robbing banks was a crime
he would not have robbed the bank. The Marina acted with clear

understanding of its wrongful actions. The Marina failed to present any

evidence that it would have acted differently and would not have excavated

the bank and erected walls. The Landing was well aware of the pending

injunction, and the lack of either a wetlands protection or building permit,

and stiil proceeded in direct violation of the court order in performing construction within the easement area. The Marina cannot possibly establish any prejudice by alleging delay under these circumstances.

t2

As stated in the ex post facto application for a building permit, it

cost $78,000.00 to perform the work in 2AA8l2AO9. The Marina has stored boats in the excavated area

in

2OOg l2OI0

and 2OlOl2OII. The Marina

failed to meet its burden to establish prejudice given that the storage fees

far exceed the cost of construction and the anticipated costs to remediate

theviolationbyrestoringthebank.See,ry,42Mass.
App. Ct. 1 13, 1 18 (1997) (refusing to find laches where no detrimental
change of position given that the cost expended was outweighed by use of property)

n.

Contempt
The Marina by its violation of the Preliminary Injunction is in

Contempt of Court and appropriate sanctions should be imposed including the award of counsel fees and costs should be imposed.
"To find a violation of an injunction sufficient to justifiz an order of

contempt, there must be a clear and unequivocal command and an equally

clear and undoubted disobedience. Demoulas

v.

Demoulas Super

Markets, Inc.,424 Mass. 501, 565 (1997).

As the trial judge has already determined the Marina has been

adjudged in Contempt of Court based on the Marina's knowing violation of the Preliminary Injunction dated May 15, 20AO. John Lund, an attorney and former clerk of the Bristoi Superior Court, at all times was well aware
of the clear and unequivocal command of the Preliminary Injunction and despite said knowledge willfully violated the court order.

13

Courts may impose sanctions in civil contempt proceedings for either

or both of two purposes: to compensate the complainant for losses

sustained and to coerce the defendant into compliance with the court's

order. Labor Relations Commission v. Salem Teachers.Union, Local

1258,

MFT. AFT. AFL-CIO; Salem School Committee,46 Mass.App. Ct.431,435

(1999). Sanctions may be imposed to compensate the Plaintiff for the

actual damages as a reslllt of the violation of the court order. See, Burke
v.

Guinelr, 700 F. 2nd,767,77O (1't Cir. 1983). As part of said compensatory

damages plaintiff is entitled to receive the amount of reasonable attorneys'
fees and costs incurred

in seeking enforcement of the court order and

related to the contempt action. Judee Rottenbere Educational Center. Inc.

v.

Commission of the Department of Mental Retardation, 424 Mass. 430,

465 (1997); Allen

v.

School Committee of Boston, 4OO Mass. 123, 195n.1

(19871. To the extent that the consequences of the Marina's contempt do

not lend themselves to compensatory sanction, "the collrt has the inherent
power to impose sanctions for contempt of its orders" Doe v.
Commonwealth , 396 Mass. 421, 422 (1985); Care and Protection

Summons, 437 Mass. 224,237 QOA2). "The purpose of civil contempt

proceedings is remedial" and the formulation of the remedy is within the judge's tdiscretion. Demoulas

v.

Demoulas Super Markets, Inc. , 424 Mass.

at 571.
To that end, the Court has properly entered a further Preliminary

Injunction requiring the removal of any boats within a certain section of the
easement area and prohibiting any future storage
14

in said area. It is

requested that said injunction be considered a permanent injunction and made part of the Court's Contempt Judgment. As part the Contempt Judgment, the Marina should also be ordered to remove the driveway entrance at the southerly end of the Landing

property and to remove the concrete block retaining wall constructed in

2008 and 2OO9 and that said removal be done under the auspices and direction of an engineer retained by the Landing. The Marina should also
be required as part of any Contempt Judgment to restore the coastal bank

to its prior condition, once again under the auspices and direction of the
engineer retained by the Landing. The Marina should be required to pay

any of the costs for said engineer and any of the cost necessary to
remediate the condition and restore the coastal bank. Such a remedy is necessary and appropriate in this case where the retaining wall that has
been constructed was performed in a faulty manner and will eventually fail

further endangering the health and safety of the residents of the Landing
and the buildings thereon. An order that restores the area to its prior

condition fulfills the remedial purpose of a contempt judgment. "Unlike the use of the criminal contempt power, the purpose of
sanctions is designed not only to punish, but also to compensate the
aggrieved litigant for the actual loss incurred as the result of the

misconduct of the offending party." Avelino -Wright, 51 Mass. App. Ct.

737, at F.5. (1999). Any monetary reward should

be tailored to the

resources wasted or u.nnecessarily expended as a result of the misconduct.

rd.
15

As an additional sanction the Marina should be obligated to pay the Landing's reasonable attorneys'fees and costs including expert fees

incurred in pursuing this contempt action and engineering costs expended

and to be expended relative to the improper wall construction in
2OAB

l2OA9

" it is recognized that the iegal fees and costs incurred in this

contempt action are at least partialiy intertwined with the underlying

complaint seeking a declaration of the parties'rights under the easements.

A reasonabie and accurate approxi.mation of the legal fees incurred would reqrrire the Marina to pay seventy-five percen t (75%) of all attorneys'fees, costs, and expenses incurred by the Landing in the combined Contempt

Complaint and underlying Complaint since the institution of the Contempt

Complaint.

CONCLUSION

For all of the reasons set forth above and arguments previousiy presented to the Court, the Landing requests that the Court:
1
I

Grant a permanent injunction enjoining the Marina from any furtlrer excavation or construction work within the twenty foot Erosion Control Easement, and ordering the Marina to restore all areas to its previously existing natural state within the twenty foot easement excavated since 2008, with a date certain for commencing such v'ork and a date for completion:
Declare that the Marina is in violation of the Erosion Control Easement by means of excavating into or
I6

2.

removing portions of the coastai bank and by storing boats and other equipment within the twenty foot wide easement area which interfere with the Landing's exercise of its easements rights;
J.

Declare that the Marina is in violation Visual Easement by means of the storage and or placement of any boats above 19'MSL on the Marina property and by piacement of the li'ft station which far exceeds 19'MSL on the Marina property;

4.

Enter a permanent injunction restraining and enjoining the Marina and its officers, employees, stock holders, from interfering with the Landing's exercising of its rights under the Visual Easement and Rrosion Control Easement and, specifically, to enjoin same from storing or placing any boats on the Marina's propert5z that exceeds 19' MSL andlor any other such structure including the iift station;
Adjudge the Marina to be in contempt of court based on its violation of the preliminary injunction dated May 15, 2O0O by the excavation of any of the coastal bank and erecting of any retaining walls within twenty foot wide Erosion Control Easement and order the Marina to pay the Landing's reasonable attorneys'fees and costs "including expert fees, of litigation as presented in the Affidavits of Counsel filed herewith.

6.

Impose a daily monetary penalty against the Marina as a sanction for any non compliance with the Court's Order. Respectfully submitted, Landing at South Park Condominium Assn., Plaintiff, By their Attorneys,
LAW OFFICE OF DANIEL R. SEIGENBERG
'\n
..J

April 29. 2011

Date:

t' 4

Daniel R. Seige_prberg, Esquire 2 Commercial Street Sharon, MA 02067 (781) 884-8800 BBO # 451100
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Dedham, Massachusetts 02026 {7811 329-s0oe BBO # 546308

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