COMMONWEALTH OF MAS SACHUSETTS TRIAL DEPARTMENT LAND COURT BRISTOL,

ss

DOCKET NO. 99 Misc 254067(JCC)

LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION. Plaintiff

vs.

) )

) )
)
I

BORDEN LIGHT MARINA. INC.. Defendant/Plaintiff In Counterclaim

vs.

)
I

POST-TRIAL BRIEF OF DEFENDANT/PLAINTIFF IN COI'NTERCLAIM, BORDEN LIGHT MARINA" INC.

)
l
I

LANDING AT SOUTH PARK CONDOMINIUM AS SOCIATION, Defendant in

Counterclaim

)
I

The Defendant/Plaintiff in Counterclaim, Borden Light Marina, Inc. ("BLM"), submits

this Post-Trial Brief for consideration by the Court.

I.

INTRODUCTION'

This action was first filed by the Plaintiff, Landing at South Park Condominium
Association ("LSP"), in February of 1999. The Complaint claimed jurisdiction under G.L. c.
185, $1(k) and G.L. c. 2314,

$1. The Complaint alleged trespass and nuisance and sought

declaration of the rights of the parties to use and occupy a 20-foot wide strip of BLM property
' All parenthetical references Tr. Vol. exhibits admitted at trial, respectively.

and

Ex._

are to the trial transcript volumes and pages, and the

adjacent to the LSP property. Specifically, the original Complaint alleged Trespass in Violation

of Visual Easement (Count I); Trespass in Violation of an Erosion Control Easement (Count II);
Private Nuisance (Count III); Negligence (Count IV); Declaratory Judgment (Count V); and a
Request for Injunctive Relief (Count

VI).

The Defendant answered the Plaintiff s Complaint and included a Counterclaim alleging trespass

by LSP onto BLM's property as the result of encroachments by LSP's building

improvements and as the result of LSP's managers, agents, seryants, employees and members

wrongfully entering upon BLM's property to mow grass and cut down and remove BLM's trees
and protective

plants. The Plaintiff answered Defendant's Counterclaims.

On May 23, 2A00, the Court entered a Preliminary Injunction (Kilborn, J.) enjoining

BLM until further order of the Court from undertaking certain actions, including "Engaging in
construction within the Erosion Control Easement recorded at Fall River District Registry of
Deeds at Book 1724,Page327." (Ex.15).

On or about June 3, 2010, LSP filed a Complaint for Contempt against BLM alleging a

violation of the Preliminary Injunction entered by the Court ten years earlier on May 23,200A.

BLM answered the Complaint for Contempt, raising various defenses, including laches
waiver. A hearing on LSP's application for

and

a Preliminary Injunction was held on October 12,

2010, and after hearing, the Court took the matter under advisement pending completion of ttre

trial of the underlying

case.2

'At

the conclusion of the trial, the court entered a Preliminary Injunction pending final disposition of the case. The Preliminary Injunction enjoined the Defendant from using the 20 ft. easement area adjacent to the 630+l- ft. long retaining wall constructed between 2008 and 2009 for storage purposes of any kind pending fur*rer Order of the Court. The Defendant complied with the Orderby removing all boats and equipment from the areawithin the time frame set forth by the Court.

On or about October 1, 2010, the

Plainti

amended its Complaint wherein

it abandoned

original Count Ill-Private Nuisance and original Count IV-Negligence, and added for the first

time allegations that the construction of a retaining wall within the 20 foot non-exclusive
easement violated the terms

of the easement and that boats are structures for purposes of the

visual easement. At the time of the filing of the original complaint in 1999, a substantial portion

of the retaining wall had been constructed and boats were being stored above elevation 19 feet
above mean sea level and within the 20 foot non-exclusive easement area.

On November 15, 201,0, the Defendant filed an Amended Answer to the Amended
Complaint, once again including its Counterclaims.
The case was heard on November 8, 9 and 10, 201A, and concluded on January 19,

2011.

II.

F'ACTUAL BACKGROT]ND

The Plaintiff is the Board of Managers of The Landing at South Park Condominium
Association, the governing body of the owners of the condominium units at LSP. (Tr. Vol. II

98). The LSP property consists of 140 condominium units built on Lots 1 and2

as shown on a

plan entitled "Division of Land in Fall River, Massachusetts, Belonging to Green River Realty

Trust dated July 14, 1986-, with a combined area of 7.73 acres. (Tr. Vol.

I3)

(Ex. 16). The

3

BLM property is shown

was divided into Lots

as

l,ot 3 on Exhibit 16 and consists of 3.5 acres. Subsequently, Lot

and B. Lot

A was conveyed to "The Admiralty, Inc."

and Lot

B was

retained by BLM. (Tr. Vol.

and Lot

lV

74-75) (Ex.l9). The Admiralty, Inc. is not a party to this action,

as shown on the referenced plan is not at issue.

BLM is a fulI service marina consisting of 27A sHps, fuel services, boat maintenance and
repalr, clubhouse and pool areas, docking facilities, boat storage and food services. (Ex. 34,
Photographs

25,26,27,28,29). The marina is licensed for up to 310 slips. (Tr. Vol. III

139).

ln addition to the docking facilities and food services, the usual operation of the marina consists
of hauling boats out of the water in the fall, power washing and winterizing them, servicing the boats and then preparing them for launching and launching them in the spring. BLM then conducts activities throughout the summer, which include fishing tournaments, swimming
lessons and organizing cruises. (Tr. Vol.

III 135-137).

The development of the condominiums and the marina is the product of a vision by Mr.
John C. Lund, who took his first steps to develop the property

in 1985 when he and his business

parbrer, Brian R. Corey, obtained an Option to Purchase the entire parcel. (Tr. Vol. IV

67).
:_

Historically the property, which is zoned Industrial, was owned by Penn Central
Railroad and had been improved by railroad tracks and a turntable. (Tr. Vol. IV 66). In 1985, when Mr. John C. Lund secured the Option to Purchase, tlre railroad tracks and turntable had
been removed, and there were twenty-six shacks situated along the shoreline. (Tr. Vol.

IV

66).

One of the terms of the Option to Purchase was that Mr. Lund and his partner were required to remove the twenty-six shacks, which they

did. Some of the shacks

and the existing conditions 34,

in

1985

of what would become the LSP and BLM properties are shown as Exhibit 4I
and47.

Photographs 1,9, 34,37,38,40,

The original development concept

in

1985-1986 was to build a

full service marina on

the waterfront with 140 condominium units overlooking the marina, together with a 16-story

high-tit"_b94fu_ut th" tgutherly

end of lhe property. (Tr.

tl| Ftrt* Vol. IV 63-69). The southerly

end

of the property is adjacent to the King Philip Boat Club. (Tr. Vol. IV 69). The original concept

also included some buildings between the condominiums and the shoreline. (Tr. Vol.

IV

69).

The use of those buildings was undetermined at that time, but storage and marina related activities were contemplated. Lund and Corey never intended to be the developer of thg
condominium portion of the development. (Tr. Vol. IV 70). They sought, through the services

of a broker, third parties to do so. (Tr. Vol. IV 70). Keith Development Corp. of
I

Stoughton,

Massachusetts, subsequently purchased an option from Lund and Corey to buy Lots 1 andZ and

to develop the condominiums. (Tr. Vol. W 70 and72).

Thereafter, plans

to

develop the property progressed.

In

particular, the high-rise

component of the marina project moved from the southerly to the tj1ther'ly end of the property and some contemplated buildings on the marina property were eliminated. (Tr. Vol. IV 7t-72). The parcel shown as Lot A on Exhibit 19, now owned by The Admiralty, Inc., and became the
site of the proposed high-rise. (Tr.

Vol. fV 75) @x.19). Ultimately, in September of

1986,

Keith

Development Corp., exercised its option and purchased Lots

purchased Lot 3. (Tr. Vol.

and

2,

and

Lund and Corey

lY 7l-73). Keilh Development Corp. took title to Lots 1 and 2 as

The Landing at South Park, Inc., and John C. Lund and Brian R. Corey took title to Lot 3 as individuals. (Exs. 1 &

2). The closings

on both properties took place simultaneously. (Tr. Vol.

IV 73). The

deed from Leo

M. Kelly, Trustee of Green River Realty Trust, to Lund and Corey

for Lot 3 conveyed that property subject to various easements, and made reference to a visual
easement and a 2Q-foot easement for the benefit of Lots

and 2. (Ex.l). The deed to The

Landing at South Park, Inc., also made reference to the visual easement and 2O-foot easement
as appurtenant to the premises conveyed.

(Exs.l and2). There were other

easements referred to

in the deeds, including an access easement, which are not at issue in the case at bar.

BLM contends that the

easements

at issue in this case were created not by grant or

reservation in the deeds, but rather by express grant set forth in separate documents executed at the closing and recorded with the Bristol County Fall River District Registry of Deeds. (Exs. 4 and

5). The language in the deeds @xs. 1 and2) contemplates the execution of specific

grants

of easement subsequent to the deeds. Unlike the specificity used for the access easement, these
deeds merely referenced general termq
easement,

for the contemplated visual

easement and 20-foot

with the particulars subsequently to be set forth by specific grants. (Exs. 4 and 5).

This interpretation is bolstered by the fact that when LSP granted a partial release of certain
rights under the non-exclusive easement, it referred not to the deed (Ex. 2), but, rather, to the
grant of easement captioned "Non-Exclusive Easement". (Exs. 5 and 7).

Although, the language in the deed relating to the visual easement differs in minor
respects from the terms of the easement itself, consequence

BLM maintains that such differences

are

of no

to the rights of the dominant and servient estates; that is, the rights granted and

limitations imposed are the same regardless of whether the Court interprets the easements under

the references in the deeds or the specific grants. In its Amended Complaint, the Plaintiff
pleads the benefit of easements under Exhibits 1,2, 4 and 5 without distinguishing the rights granted or reserved in each. BLM maintains that the operative documents for determining the

rights of the parties to the visual easement and the 20-foot non-exclusive easement are Exhibits
4 and 5 respectively.

Lund and Corey transferred title to the marina property (Lot 3 on Ex. 16) to Borden

Light Marina, Inc. on July 25, 1989. As noted above, a portion of Lot 3 was cut out, labeled
Lot A, and transferred to The Admiralty, Inc., and again, is not part of this case.

After acquiring title to the property, BLM commenced the permitting process to build

the marina.

It filed an application under M.G.L.A. c. 91 with the Commonwealth of

of Environmental Quality Engineering "for a license to construct

Massachusetts, Department

and maintain floats, finger floats, mooring piles, gangways, fixed piers, fixed and floating wave attenuators, boat ramp, riprap, roadway, walkway, parking spaces, public overlooks and other

marina related facilities." (Ex. 7). The license applied for is known as a Chapter 9lWaterways License. The details of the proposed marina were set forth on DEQE License Plan No. 1848,
Sheets 1-15,

titled: "Plans Accompanying Petition of Borden Light Marina, Inc., License No.

1848." (Ex.7).

On December 19, 1988, the license was approved to allow a colnmercial

and

recreational boating facility. Id. The License was recorded at the Bristol County Fall River

District Registry of Deeds on December 21, 1988. Id. The recording took place prior to the
construction of the condominiums. The License, as approved, provided for 410 slips, 253

parking spaces, an l8-foot asphalt roadway beginning at Club Street at the southerly end of

BLM and running northerly to Ferry Street, and among other things, a retaining wall with
portions of the wall within 10 feet of the common property line as shown on Sheets 9-12 and I5

of license plans. Id.

After the issuance of Waterways License No. 1848, the Fall River Conservation
Commission issued an Order of Conditions dated February 8, 1991, based in part upon the same plans that accompanied the Waterways License application. (Ex.

9).

Waterways License No.

1848 was amended at various times over the subsequent years. See Waterways License No. 8001 (Ex. l1), Waterways License No. 9876 (Ex. l4), and a Draft License issued in 2010. (Tr.

Vol. III 143-144).

Corresponding Orders

of

Conditions issued from the Fall River

Conservation Commission and the Massachusetts Department @xs. 9, 10, 12, 13, 25 and

of Environmental

Protection.

26). The Orders of

Conditions that issued carried forward the

retaining wall as shown on the original Waterways License No. 1848 and on the subsequent
Waterways Licenses that issued. (Exs.7, l

and 14).

The significance of the various Waterways Licenses and Orders of Conditions rests with

the public hearing process and public notice requirements for each. Furthermore,

each

Waterways License and Order of Conditions was required to be recorded at the Bristol County

Fall River District Registry of Deeds providing notice to the world. In addition, notice of the

first Waterways License application was sent to Mr. John Keith, Principal of Keith
Development Corp,, the developer of the condominium project. (Tr. Vol. tV 70, 71,79,82 and,

89). The license application was filed before 1988, establishing notice to the developer of

the
a

condominium project that the BLM property would be developed as a marina and that

retaining wall would be constructed in the vicinity of the common property line and located, at
some points, as close as

l0

feet from the property line. (Ex. 7, Sheets 9-13

&

15) (Tr. Vol.

III

I42-I44). Once recorded, all subsequent owners took title to their respective units with notice
of all recorded documents.
Subsequent to receiving the Waterways License and Orders

of Conditions, Mr.

John

Lund, President of BLM, started construction of the marina. When construction commenced in
1989,

BLM excavated into the embankment adjacent to the common property line between
phases beginning

BLM and LSP and constructed a retaining wall in

in

1989 and continuing

through 2009. (Tr. Vol. IV 85-86). Mr. John C. Lund testified that the first part of the retaining

wall constructed was in front of Buildings l1- 12, where BLM constructed a 4-foot retaining wall (Tr. Vol. IV 83), which was subsequently modified by Keith Development Corp. (Tr. Vol.

IV 84). Note that Michael Lund indentified the addition of the wall by Keith development
front of buildings 10 and 11. (Tr. Vol.

as

in

III

106). Building

l0 is actually the one fronting on the

wall that was added onto by Keith development. See also Exhibit

2l

for building identification

numbers. The wall in front of Buildings 11 and 12 as built by BLM was 4 feet high on each end

and 10 feet high in the middle. (Tr. Vol.

IV 83).

The modifications by Keith Development

Corp. increased the height of the wall to 10 feet in that area. (Ex. 34, Photographs 7,35,49 and,

51). Keith Development was building the condominiums for the Landing at South Park, Inc.,
LSP's predecessor in title. Throughout the 20 years during which the retaining wall was being constructed, the construction materials for the wall varied. The first section of wall was poured concrete, and
then a portion was steel sheet piling, with the remainder being a segmented concrete block wall.

(Ex. 3a). The steel sheet piling was used at the point where the condominium foundations were

in close proximity to the property line. (Tr. Vol. IV 87). As previously stated, this Court entered a Preliminary Injunction in May of 2000 that prohibited construction activity within the 2O-foot easement area. (Ex. 15). Nevertheless, the parties had discussions about the retaining wall subsequent

to the date of entry of

the

Injunction, and, in fact, the parties came to an agreement that allowed filther construction of
the retaining wall. (Tr. Vol.

M2-94)

(Ex. 28

& 29). Mr. John C. Lund testified

that from

October 8,2002,1o 2010, no one from LSP objected to the retaining wall construction and ttiat the retaining wall had been completed before he received the first objection in 2010. (Tr. Vol.

IV 94). Mr. John C. Lund further te'stified that he personally observed the retaining wall being
built and that he observed members of the LSP Board of Managers watching the construction of the retaining wall. (Tr. Vol.

IV 95). He testified that during the construction work on the

retaining wall in 2008-2009, he observed and spoke with members of the Board of Managers LSP, including Marcel Daquay, Bert Bouffard, Paul Beatti and Charles Schnitzlein. (Tr. Vol.

qf
IV

153-156). Mr. John C. Lund fuither testified that the individuals identified above never asked him to stop construction of the retaining wall. (Tr. Vol. IV 156).

Mr. John C. Lund testified

as to the scope

of the marina's operations and specifically Vol. IV 96-101). He testified

noted that the storage of boats is a usual part of its business. (Tr.

that it took him almost 22 yearsto develop the marina to the point where it exists today. (Tr.

Vol' IV 101). The facts

as established by

Mr. John C. Lund's testimony are consistent with

those set forth in Michael Lund's testimony. Michael Lund testified in detail about the areas

depicted

in Exhibit 34, Photographs 1 through 51" (Tr. Vol.

III

94-145). Of parricular

importance is the photographic evidence set forth in these exhibits depicting the state of the

LSP and BLM properties

in 1986 and the following

years as development of both parcels

progressed through 2009.(Ex. 34, Photographs

I through 5l).

Michael Lund detailed in his direct testimony the excavation of the embankment,
starting

in 1986 and ending in 2009. (Tr. Vol. III 94-145) (Ex. 34, Photographs I through 5t).
it took to build the marina, the

These exhibits clearly establish pre-existing conditions, the time

extent of the construction work undertaken in plain view of LSP, and LSP's failure to take any
reasonable steps to curtail the work about which it now complains. (Tr. Vol.

III 117).

Mr. Michael Lund confirmed the receipt of a "thank you" letter from the LSP Board of
Managers dated October 2,20A8. (Tr. Vol.

III

119) (Ex.

38). He testified that the manner in

i

which BLM created storage space for vessels has been consistently the same since 1988-that

is, excavate the embankment, add revetment and construct retaining walls. (Tr. Vol.

III

139-

140). The marina evolved over two decades. BLM's efforts were constant, and LSP had every

10

opporhmity to protect the interests it now claims have been violated. LSP took no meaningful
steps to do so.

Through the testimony of Michael Lund, Exhibit 34, Photographs 1-51 were
admitted into evidence. Photographs 4,5j7,8,1 4,21,22,39,42,49, and 51 of Exhibit 3,4 aIl depict

construction activity or retaining walls built prior to filing of the original complaint wherein LSP did not challenge the excavation of the embankment or the construction of the walls. This

is compelling evidence of the state of mind of the parties to the easement at the time the
easement was drafted

in

1986 until the complaint was amended

in October of 2010,

a period

of

24yearc.
The Plaintiff failed to offer any evidence to dispute most of the facts established by the testimony of Mr. John C. Lund and Mr. Michael Lund.
IMr. Bertrand Bouffard testified for

LSP. He testified that he moved into LSP, Building

3, Unit 304,

in

2001. (Tr. Vol.

49). It is significant to note that by that time, Waterways of Conditions from the Fall River

Licenses Nos. 1848 and 8001, togethel with four Orders

Conservation Commission and/or Massachusetts DEP, and the deed to Borden Light Marina,

Inc., had all been recorded at the Bristol County Fall River District Registry of

Deeds,

providing notice to the world that a marina was to be built on the BLM property. (Exs. 7, 8, 9,
10,

1l

ari- tZ). These documents establish the scope of the marina, which clearly includes the

work at the south end of the marina properfy, which was the focus of LSP's evidence at trial.

To the extent Mr. Bouffard testified as an individual, and to the extent such testimony is
relevant, he took title to his unit with actual knowledge of the fuIl build-out of the marina by

virtue of the recorded documents; and to the extent he testified as a member of LSP Board of
Managers, the Board was a party to the original development plan. (Exs. 1, 2,3,4 and 5).

ll

Mr. Bouffard, who resides in Building 3, the southernmost building, became a member
of the Board of Managers in 2004. (Tr. Vol.

I61). He served as chairman

in 2010. (Tr. Vol. I

62). ln 2007, Mr. Bouffard was asked by his fellow Board of Managers of LSP if he would
approach Mr. John C. Lund and ask him to add an additional row of blocks to the block wall

BLM was then constructing. (Tr. Vol. I 65). The Lunds complied with the

request. (Tr.

Vol. I

65). lvk. Bouffard acknowledged this aclpommodation on behalf of the LSP Board by thanking
the Lunds for their efforts. (Tr. Vol.

66) (Ex. 38). Mr. Bouffard testified that at the time

Exhibit 38 was signed, he and the Board of Managers did not know of the Preliminary
Injunction that issued

in

2000. (Tr. Vol.

I 71).

His testimony strains credibility. He

acknowledged the 2006 Settlement Agreement, which he signed, and which makes reference to

the Land Court action. (Ex. 39). In fact, all three of the individuals who testified on behalf of

LSP-- Mr. Daquay, Mr. Bouffard and Mr. Schnitzlein--all signed the 2006 Settlement
Agreement as Managers of LSP. (Ex. 38). At all times relevant to the Settlement Agreement,

LSP was represented by legal counsel. (Tr. Vol.

118). Mr. Bouffard testified that when he

observed the retaining wall construction in 2009, he, acting on behalf of the Board of Managers,

went to Fall River City Hall to inquire about permits for the work. (Tr. Vol.

104-107).

Curiously, this was when construction of the retaining wall approached his unit in Building 3.

Mr. Bouffard testified that he was a businessman and had developed land. (Tr. Vol. I
116). He testified that he had retained the services of professionals such as land surveyors and
attomeys. (Tr. Vol.

I 116). Mr. Bouffard

testified as to his knowledge of hauling a boat out of

the water and the steps necessary to winterize a vessel. (Tr. Vol.

138-140). He was an assistant

harhormaster in Portsmouth, Rhode Island for ten years. (Tr. Vol.

I 135). He also testified that

when a boat is stored for the winter,

it is not affixed to the ground. (Tr. Vol.

140-142). He

12

also testified repeatedly about the effect the marina had upon "his" building and his unit. (Tr.

Vol.

I 145-148). Mr.

Bouffard testified that the residents of LSP can no longer walk around the

perimeter of the property. (Tr. Vol.

I 155). To the extent

that he was referring to the area within

the 20-foot easement that was excavated by BLM, his testimony is irrelevant because the terms

of the 20-foot easement do not give LSP residents any right to walk within the easement area,
and they are committing a trespass when they do so. (Tr.

Vol.

I 154,161-162).
I

Mr. Marcel R. Daquay also testified for the Plaintiff. He testified that he has resided in
Building 4, Unit 401, since 2002, and he has been a member of the Board of Managers since
2005. (Tr. Vol.

II 65-66). Like Mr. Bouffard, Mr. Daquay purchased his unit after the recording

of the two Massachusetts G.L. c.

9l

Waterways Licenses and the series of Orders of Conditions

again,

from the Fall River Conservation Commission and Massachusetts DEP, which,

constitutes actual notice to the world. (Exs. 7, 8, 9, 10, 11 and 12). Any testimony that he was

not aware of the extent of the BLM build-out, as a unit owner, or as a member of the Board

of

Managers, contradicts the public notice he had in the form of the recorded documents at the

Bristol County Fall River District Registry of Deeds. His testimony

as

to the changes in the

marina from the time he moved into LSP in 2001 up through the dates of various photographs
he referred to during his testimony is irrelevant because the issues at trial relate solelv to the 20-

foot non-exclusive easement and to the visual easement.

Mr. Daquay, like Mr. Bouffard, also testified that he was a member of the Board of
Managers of LSP in 2006 when a Settlement Agreement was signed and that he in fact signed

the Agreement. (Tr. Vol.

II 7l-72).

Although he testified that the Board of Managers was

represented by the Law Firrn of Marcus Erico during negotiations leading up to the signing of

the Settlement Agreement, he disclaimed any knowledge of the pending Land Court litigation

l3

and of the Preliminary Injunction. (Tr.

Vol. II 72-73). That testimony

as to lack of knowledge

is incredible because the Land Court litigation was referenced in the Settlement Agreement that
he and the other members of the Board of Managers signed. (Ex. 39).

Apparently, LSP would like the Court to conclude that it was being advised as to the
status of the pending litigation by the Lunds, despite the fact that

it was represented by counsel

at all times relevant hereto. (Tr. Vol.

lI

74-77). Mr. Daquay admitted that the Board of

Managers was aware of the construction and excavation work that commenced in 2008. (Tr.

Vol. II 76'77). In fact, Mr. Daquay testified that he watched the construction every day (Tr.
Vol. II 83) and that the work done in 2009 was completed with full knowledge of the Board of
Managers. (Tr.

Vol.II

103-104).

Mr. Charles E. Schnitzlein, Jr., testified on behalf of LSP. He testified that he has been
a resident of LSP since 1998, a member of the Board of Managers since 20A5, and he was
chairman of said Board in 2010. (Tr. Vol. 1I176-178). Like the other unit owners rvho testified,

Mr. Schnitzlein took title to his unit subject to, and with notice of, all of the recorded
documents depicting the build-out of the marin4 and his personal objection to the expansion

of

the marina is irrelevant. Mr. Schnitzlein testified that the Board of Managers was aware that
the Settlement Agreement (Ex. 39) provided for retaining walls being constructed after atrigger event occurred, and not before. (Tr. Vol:

II 191). He testified

that the Board of Managers was

aware that the retaining wall was constructed, albeit prematurely, under the terms

of

the

Settlement Agreement, but the Board assumed that the Settlement Agreement would "take place". (Tr. Vol. 1I197). LSP did not submit a plan showing the 20-foot easement area and the location of the retaining wall within that area. Mr. Schnitzlein testified that he was aware of the pending litigation referenced in the Settlement Agreement (Ex. 39) when he signed it, but that

l4

he didn't inquire as to the terms of the litigation or of its nature or subject matter. (Tr. Vol.

III

15-17). Mr. Schnitzlein also testified consistently with the other LSP Managers that the Board of Managers requested BLM to add to the height of the block wall BLM was constructing by
adding an additional row of blocks. (Tr. Vol. lII22-23). Mr. Schnitzlein also acknowledged the

"thank you" letter from LSP to BLM referencing that raising of the height of a portion of the

wall. (Tr. Vol. III 21) (Ex. 38). The *Thank you" letter issued during the one year that LSP was "investigating" BLM's construction activities. (Tr. Vol.

III 20-22). Mr.

Schnitzlein testified

that the Board of Managers of LSP did not realize that BLM would expand its operation. (Tr.

Vol.

III

35). That testimony is incredible based upon the records at the Bristol County Fdil

River registry of Deeds. Mr. Schnitzlein resides in building 2, Unit 202, in close proximity to buildings 3 and 4, nearthe south entrancb to the marina. (Tr. Vol.

lI

177)(Ex. 21). He testified

that BLM stored boats within the 20-fooi easement area in 2005 when he became a member of

the Board of Managers and that the Board did not object.

It would

appear that, like other

members of the Board of managers, he did not object to the marina activities until he perceived that they had a direct impact upon his unit at LSP.

III. SUMMARY

OF ARGUMENTS

(r)

Visual

Easement
i

LSP has the benefit of a visual easement due west over a portion of BLM's property.

@x.a). The limits of the visual easement are set forth in the grant. (Ex. a).
l

LSP has the burden of proving that BLM is in violation of the visual easement by (1) storing boats within the visual easement area 19 feet above mean sea level (MSL), and/or (2) constructing and maintaining two building roofs within the visual easement area 19 feet above
15

MSL. LSP has not met its burden on either count. LSP frst raised the issue of a boat beinsia
"structure" when it amended its 1999 colnplaint in 2010. The benefit of the easement to LSP is for a o'view unobstructed bv anv structure in the
area 19 feet above Mean Sea

Level...." LSP offered no evidence at trial that a boat is

"structure" as that term is used in the grant of easement. To the contrary, BLM offered
evidence that

it is a licensed marina under M.G.L.A. c.91, and that its operations

as such are

governed by 310

CMR 9.00, et seq. (Ex. 23). BLM's operations fall under both the definition

of a boatyard and a marina as set forth in the regulations. The regulations also define a
structwe as follows: structure "means any man- made object which is intended to remain in place ...", and vessels are specifically excluded from the definition of a structure unless thdy
are "permanently

fixed". (Ex. 23,310 CMR 9.02).

Boats stored seasonably within the easement area are not 'opermanently fixed" in place
and therefore do not arise to a structure as that term is used in the

CMR. BLM

argues that in

light of the indisputable evidence that BLM property was to be developed as a marina from the

initial concept in 1986, including certain language in the easement itself, the CMR regulations
pertaining to marinas are the most logical place to look for guidance as to what the term
'ostrlrch.re" means as used in the context of the visual easement over the marina,

Likewise, LSP failed to offer any evidence as to the elevations of the building roofs on
the club house and the guard's shack which LSP claims are in violation of the visual easemedt.

The two buildings are situated on pilings over the water. LSP needed to prove three things in
order to be successfirl in its claim:

(l)

establish MSL; (2) establish the height of each roof top as

being greater than 19 feet above MSLI and (3) establish that the two buildings are in fact

16

situated on Lot 3 and within the easement area. LSP failed to address any one of these three elements and thus failed to meet its burden of proof. It is also evident from Exhibit E of LSPIs complaint that the "Guard Shack" is outside of the Visual Easement.

(ii)

Non-Exclusive Easement

LSP has the benefit of a non-exclusive easement over an arca 20 feet wide and running

parallel to the common property line between LSP and BLM as shown on a sketch attached to the grant of the easement. (Ex. 5). The hand sketch does not identiff any existing conditions from which the Court can locate buildings, walls, property lines, topography, elevations or other
physical features of the

land.
i

The easement as originally drafted was subsequently modified to eliminate LSP's right

for construction and maintenance of a public walkway and bicycle path within the

easement

area. The modification reduced LSP's easement rights to "construction and maintenance of
drainage systems and for construction and maintenance of a sloped, graded erosion and flood

protection barrier". (Exs. 5 and

6). The easement by its terms is non-exclusive; that is, BLM

may use the easement area so long as such use does not interfere with LSP's exercise of its rights. (Ex. 5).

BLM argues that to the extent the retaining wall it constructed is within the

2O-foot

non-exclusive easement area, the wall, and the area above it, acts as a sloped, graded erosion

and flood protection barrier and adequately addresses the rights of the dominant

estate.

Accordingly, BLM argues it has not interfered with LSP's rights under the easement. Also,

t7

BLM argues that LSP offered no evidence that it (LSP) ever took any

steps

to

ooconstruct"

sloped, graded erosion and flood protection barrier. Quite to the contrary, LSP cut into the
embankment when it added onto the retaining wall originally built by BLM in front of buildings
11 and

12. LSP did exactly what it now claims BLM is prohibited from doing, that is, build

retaining wall as an acceptable replacement for sloped, graded erosion and flood protection

barrier. LSP, having

neglected to exerriise its right to construct a sloped, graded erosion and

flood protection barrier, except for the retaining wall it constructed as noted above, should not
now have veto power over the mailler in which BLM uses the non-exclusive area so long as the
retaining wall serves the purposes stated in the non-exclusive easement.

At trial, LSP's evidence relative to the wall was limited to the

630+l- feet

of

the

retaining wall at the southerly end of BLM's property. As to the drainage system, it offered no evidence from which the Court can conclude that BLM has interfered
drainage system by constructing the retaining wall or in any other

in any way with its

i

manner.

LSP's challenge to BLM's right to build a retaining wall within the 20 foot nonexclusive easement area was not raised until
retaining wall was fully constructed.

it amended its complaint in 2010, after the

(iii) BLM's

Counterclaim for Trespass

trespass upon
10,

BLM has pleaded in its answer a counterclaim against LSP claiming

BLM's property
as a result

of encroachments by LSP's fence, porch overhang at Building

and a concrete step plus two concrete pads at Building

11. All of the encroachments are

t8

depicted in Exhibit 43, entitled o'Plan of Land Showing Encroachments From The Landing at South Park Over Borden Light Marina Property in Fall River, Massachusetts, Scale 1"

60'

Date: october 29, 1999, Mount Hope Engineering, Inc. 163 G.A.R. Highway, Swansea, MA
02777".

LSP offered no testimony to rebut Exhibit 43 or the testimony of Mr. James Hall, whp

testified that, unlike other plans, Exhibit 43 was prepared based upon a field survey for the
purpose of depicting LSP's encroachments onto BLM property.

TV.APPLICABLE LAW

"An

easement

is by definition a limited, nonpossessory interest in realty." M.P.M.

Builders" LLC v. Dwver. 442 Mass. 87,92,809 N.E. 2d 1053 (2004). An easement can be either affirmative or negative. Whereas an affrrmative easement permits one to enter upon and
use land in possession of another for a particular pu{pose, "[a] negative easement consists solely

of a veto power. The easement owner has, under such an easement, the power to prevent the
servient owner from doing, on his or her premises, acts that, but for the easement, the servient

owner would be privileged to do." Patterson v. Paul. 448 Mass. 658, 663,863 N.E. 2d 527

QllT(quoting 4 R. POWELL, REAL pnOpgnrY $4.02121[c], at 34-16(M. Wolf

Thus, a negative easement operates as a restriction on land. Id.

ed. 2000).

At

662-663.
estate may

It is a long-established rule in the Commonwealth that the owner of real

make any and

all beneficial

uses

of his property

consistent with the easement. M.P.M.

Builders. LLC

v. Dwyer. 442 Mass. at 91. The nature and scope of an easement, and

conversely the parameters of how a servient owner may use his or her properfy, are to be
19

construed in accordance with the intent of the parties to the easement grant as determined from the words of the instrument creating the easement, as well as the circumstances existing at the

time itwas created. Pattersonv. Paul.448 Mass. 658,665,863 N.E. 2d527 Q007); see also
Dale v. Bedal,305 Mass.102,103,25 N.E.2d 175 (1940); Lowell v. Piper.31 Mass. App. Ct.

225, 230, 575 N.E. 2d

restrictions on land and

Il59 (1991). Generally, however,

Massachusetts

law disfavors

*[if

the interpretation of a particular restriction] can be said to be

should be 'resolved in favor of the freedom of land frorn

doubtful, then

it is a doubt which

seryitude." Hemenway v. Bartevian. 321 Mass. 226,229,72 N.E. 2d 536 (1947) (quoting St.
292 Mass. 430,433,198 N.E. 903 (1935).

The burden of proving that BLM has violated the easements at issue in this case rests
squarely on LSP. See Mt. Holyoke Realty Corporation

v. Holyoke Realt)' Corporation.

284

Mass. 100, 105, 187 N.E. 227 (1933). Mr. John Keith of Keith development Corp., the entity

that developed the condominiums, prepared the easements. (Tr. Vol.

established rule

tV 73-74).It is a well

of law that writing is construed strongly against the party who drew it

if

ambiguous or uncertain language is used. Bowser v. Chalifour, 334 Mass. 348, 135 N.E. 2d 643

(1956). BLM did not find any case wherein a boat was determined to be a structure, in the
context of a visual easement- or otherwise.

Laches is an equitable doctrine which penalizes a litigant for negligent or willful failure

to assert his or her rights. Valmor Produits Company v. Standard Products Corporation. 464 2d,200,204 claim

(l't Ck. lg72). The equitable doctrine of laches will bar a party from asserting a

if

the party so unreasonably delayed in bringing the claim so as to cause some injury or

prejudice to the defendant. Polaroid Corp. v. Travelers Indemnitv Co.. 414 Mass. 747,75g-760,

20

610 N.E. 2d 912 (1993), citing Yetman

i,. Cilv of Cambridee. 7 Mass. App. Ct. 700,707,389

N.E. 2d 1022
circumstances

(lg7g). Its presence is ordinarily a deterrnination of fact based on the particular of the case. Yetman v. Citv of Cambridge. 7 Mass. App. Ct at 707 (citing

McGrath v. C.T. Sherer Co.. 291 Mass. 35, 59-60 (1935) and Tzitzon Realtv Co. v. Mustonen.
352 Mass. 648, 650

(1967). The doctrine of laches may

save a defendant from the expense

of

removing a structure built on another's land. Harrington v. McCarthy. 169 Mass. 492,494,48 N.E. 278; Geragosian v. Union Realty Company. 289 Mass. 104,193 N.E. 726 (1935)

The essence of an action of trespass to real property is a showing that the Defenda4t
committed an intentional and unprivileged interference with the PlaintifPs possessory rights.
Prosser and Keeton, Law

of

Torts, 5'h

Ed

SI3,

pp. 69-70. To establish a prima facie case in an

s

action in tort for trespass, the Plaintiff must prove the breaking and entering of the Plaintiff

close. The elements of proof are:

l)

PlaintifPs possession or right

to

possession; 2)

unauthorized act or entry by the Defendanf 3) damage. Bishop, Prima Facie Case - Proof and Defense, 531.21 (4th ed. 1997). Damages are not an essential element of the tort of trespass.

In order to find for the Plaintiff in civil contempt, there must be clear and unequivocal
command and equally clear and undoubted disobedience. Whelan v. Frisbee. 29 Mass. App. Ct.
7

6,

557

N.E. 2d 55 (1990); Larson v. Larson. 28 Mass. App. Ct. 338, 551 N.E. 2d 43 (1990).

Civil contempt proceedings are remedial and coercive and intended to

compliance

achieve

with court's Orders for benefit of complainant,

whereas criminal contempt

proceedings are exclusively punitive and designed wholly to punish. Furtado v. Furtado. 380 Mass. 137,402N.E.2d 1024 (1980).

V. ARGTJMENT

2l

A.

BLM'S STORAGE OF BOATS ON ITS PROPERTY DOES NOT VIOLATE THE TERMS OF THE VISUAL EASEMENT GRANTED TO LSP DATED
SEPTEMBER 30. I.986.

The visual easement at issue in this c4se provides:

For a view unobstructed by any structure in the area 19 feet above Mean Sea Level on the premises...Excluded from the definition of the term structure as used in this Visual Easement and expressly permitted to occupy the area 19 feet above Mean Sea Level on the premises are pilings, supporting piers and floats, hvac exhausts and/or intakes which are reasonably screened, trees, shrubbery and picnic tables.

@x.

a).

The portion of BLM's property encumbered is described in the easement as

follows:
i

A parcel of land in Fall River, Massachusetts, located on the westerly side of Almond Street, bounded and described as follows, running: WESTERLY:

i i

south 89o 53' 55" West to the Mount Hope Bay; thence rururing

SOUTHWESTERLY:

along the Mount Hope Bay to land now or formerly of the King Phillip
Boat Club; thence running

EASTERLY:

by land now or forrnerly of

Phillip Boat Club 96.44 feet;
running

King

thence

NORTHEASTERLY:

by lot I and lot 2 on the plan

hereinafter described to the point of beginning as herein specified.

Being a portion of Lot #3 on that plan of land entitled: "Division of Land in Fall River, Massachusetts, belonging to Green River Realty Trust Scale: l" 80', Date: July 14,1986, prepared by: Site Work Associates, Inc., 251 Bank Street, Fall River, Massachusetts", recorded with the BristoliCounty Fall River Registry of Deeds in Plan Book 79, Page 80, as deeded to Grantor by Instrument No. 15885 recorded with said Registry of Deeds on October 1, 1986.

22

That portion of Lot 3 encumbered by the visual easement can be identified as that part

of Lot 3 lying between an extension of LSP's northern properly line in a westerly direction
89o

S.

53' 55" West to Mount Hope Bay and BLM's southerly properfy line running N.

89o 59'

10" West for a distance of 96.44 feet. The southerly line of BLM's property

and the northerly

line of LSP's property are shown on Exhibit 16. The visual easement is limited to that portion

of BLM's property lying southerly of LSP's northerly property tine. (Ex. 16, Line Table, Line
DA).
Although the language itself is clear, the issue as to what the term "structure" entails and how it should be interpreted is vehemently contested and is central to this case. Simply stated,
whether BLM can be said to have violated the terms of this easement by storing boats that reach

19 feet above Mean See Level on its own property hinges upon whether a boat constitutes a
oostructure."
I

In light of the applicable larr, the language of the easement grant, as well

as the
a

attendant circumstances sulrounding the sarne, this Court must find that a boat "structure" within the purview of the easement.

is not

The analysis as to whether a particular thing constitutes a "structure" is governed by the general rules for the interpretation of easements. The Supreme Judicial Court has determined

that "[a]nything 'constructed or built' (dictionary defrnition) is a structure but whether

particular thing constructed is within the meaning of the word as used in a statute, regulation, or
contract depends bn the context." Scott v. Board of Appeals of Wellesley, 356 Mass. 159, 161-

162,284 N.E.2d 281 (1969) (concluding that a swimming pool was a "structure" for purposes

of the set-back requirements of the Wellesley zoning by-laws, specifrcally noting that it waq a
"large permanent installation").

23

In Sapah-Gulian v. Lomanno, 17 LCR 692 (Mass. Land Court 2009), the Land Court
was faced with the issue as to whether a swimming pool and retaining wall constituted "structures" prohibited

by a

particular view easement.

In the course of

making its

determination, the Land Court considered the definition of the term as set forth in the local zoning by-laws and Black's Law Dictionary. Id. at 11-14. The Land Court also noted the
divergent Massachusetts case law on whether particular things amount to structures in particular

contexts. Id. at 15, n. 11 (citing Williams v. Inspector of Bldgs. of Belmont,341 Mass. 188,
191, 168 N.E.2d 257 (1960) (finding that a tennis court was not a structure within the meaning

of a local zoning by-law); Millbury v. Galligon.37l Mass. 737,740 (1977) (finding that a
billboard was not a structure in context of the mechanic's lien statute)). Ultimately, the Land
Court determined that the swimming pool and retaining wall were "structures," in that they fell
squarely within the various definitions of the term. Id. at 16. Of particular consequence to the Land Court was the size and permanence of the improvements. Id.
Other jurisdictions have likewise sought to interpret the meaning of the term "structure" as used

in restrictive covenants and easements.

See e.g., Paye

v. City of Grosse Pointe, 2i1

N.W. 826, 827 (Mich. 1937); Stewart v. Welsh, 178 S.W.Zd 506,508 (Tex. 1944); Conrad v.

Boogher,2l4 S.W.211 (Mo. App. 1919). InLeavittv. Davis, 153 Me.279, 136 A.zd535
(1957), the Supreme Judicial Court of Maine was called upon to interpret a restrictive covenant that prohibited structures on a piece ofproperty so as to preserve a view to the ocean from the property behind

it. The pertinent

terms of the covenant provided:

. . . and the said grantors hereby covenant and agree with the said grantee that upon the parcel of land lying in front of said lot Ninety included between Bay View Avenue, and the sea, and the side lines of said lot Ninety produced to the sea, they will erect or maintain no buildins or structwe of such a character as to

24

intemrpt or interfere with'the view over said parcel from said lot Ninety. Id. at 536. The owner of the servient properfy had been using his property as a public parking

lot and the issue before the court was whether parked cars or buses constituted "structures"
under the covenant. Id. at 536-537. The court determined that they were not, "[t]he vehicles

are not buildings, nor do they have the characteristic pennanency which we associate with structures." Id. at 537. The court went on to state that "[a] restrictive covenant ought not to be
extended by construction beyond the fairmeaning of the

words," Id.

In the case at bar, a boat shouldinot be considered a structure prohibited under LSP's
visual easement. The terms of the easernent provide insight into the parties' intent involving its

grant. The document preserves "a view unobstructed by any structure in the area 19 feet above Mean Sea Level on the premises

. . . ."

(Ex.

a).

Although the term "structure" is not

affirmatively defined within the easement itself, a list of items is set forth and specifically
excluded from the definition, namely "pilings, supporting piers and floats, hvac exhausts and/or intakes which are reasonably screened, trees, shrubbery and picnic tables." Admittedly, this list
does not specifically exclude a boat from the definition

of structure. But this

language clearly

illustrates that the parties envisioned that BLM's property would be used for a marina. The
Lunds testified, without any evidence asserted to the contrary, that one of the ordinary seasonal operations of a marina is to haul vesselsl out of the water, winterize them, and store them until
j

the boating season returns. (Tr. Vol. IVr96-101). Mr. Bouffard's testimony on behalf of LSP,

admitted a familiarity with marina operations, and he specifically acknowledged that while
boats are in storage they are not permanently affixed to the grotrnd. (Tr. Vol.

I I40-I42).

There is nothing in the terms of the visual easement to suggest that the list in the visual
easement

is complete and exhaustive. The list simply provides specific examples of items
25

usually associated with a marina that rnight typically be considered a structure, and exempts
them from the purview of the easement. j See e.g., Meyer v. Donovan, 9 LCR 302,304 (Mass.

Land Court 2001) (finding that a pier and dock constituted a prohibited structrne under

restriction); Monday Villas Property Owners Assoc. v. Barbe, 598 N.E.2d 1291,1293 (Ohio App. 1991) (finding that radio antennas affixed to a condominium constituted a structure under the condominium association's rules and regulations); Stewart v. Welsh, 178 S.W.2d at 508

(Tex. 1944) (finding that a fence was a prohibited structure under a restriction). It does not follow that something that is clearly not a structure, for example a boat, would be prohibited
because

it was not included in this list. This interpretation is clearly supported by the fact thpt

the items that are listed in the easement are cofllmonly associated with a marina and have an
element of permanence once set in place.,

The notion of permanence being an attribute of a structure cannot be denied. A

structure is defined by Black's Law Dictionary as *(1) Any construction, or any production or piece of work artificially built up or composed of parts purposefully joined together
<a

building

is a structure>." BLecr's Lew DIcrtoNARy 1436 (7e ed. 1999). Moreover, as in the SapahGulian case where the court considered the local zoning by-laws for guidance in determining
the scope of the term "structure" as it pertained to a view easement involving two homes, the applicable Massachusetts regulations goveming marinas and boatyards is the logical source for
guidance when determining the scope of that term to be applied to view easements overlookirig a marina. Title 310, Section 9.00 et seq. of the Code of Massachusetts Regulations governs waterways, including the marina's licensing, and defines a structure as

[A]ny man-made object which is intended to remain in place in, on, over, or under tidelands, Great Ponds, or other waterways. Structure shall include, but is not limited to, any pier, wharf, dam, seawall, weir, boom, breakwater, bulkhead, riprap, revetment,
26

jetty, piles (including mooring piles), line, groin, road, causeway, culvert, bridge, building, parking lot, cable, pipe, pipeline, conduit, tunnel, wire, or pile-held or other permanentlv fixed
float. barge. vessel, or aquaculture gear.
310 C.M.R. $ 9.02 (emphasis added). (Ex, 23).

Thus,

it is not surprising that the idea of permanence factors heavily in the decisions of

Scott v. Board of Appeals of Wellesley, 356 Mass.I59,284 N.E.2d 281 (1969), in which the
Supreme Judicial Court decided that a swimming pool was a "large permanent installation" and

thus a structure under applicable zoning by-laws, and Sapah-Gulian v. Lomanno, 77 LCP. 692 (Mass. Land Court 2009),

in which the Land Court, relying heavily on the Scott

decision,

determined the scope of a particular view easement. Likewise, in Leavitt v. Davis, 153 Me.
i

279, 136 A.2d 535 (1957), the Maine Supreme Judicial Court wholly based its decision thht
automobiles were not structures on the fact that they lack the necessary permanence.

Similar to the automobiles in Maine's Leavitt decision, the boats stored on BLM's
property lack the necessary permanent nature to be considered a structure. BLM's storage of
the boats is largely seasonal and in fact works much like a parking

lot. It is important to note

that not one of said boats is permanently affrxed to the land and, therefore, the boats do not fall

within the definition of a structure under the applicable regulations governing licensed marinas,
as

well as any common notion of what constitutes a sffucture. See 310 C.M.R. $ 9.02.
The same logic applies to the travel

lift used by BLM to lift

boats out of the water and

transport them to different locations on BLM's property. The travel

lift has four wheels and sis

driven around the marina property in exactly the same fashion as a truck. There is not a single
element of permanency applicable to the travel lift. (Tr. Vol. IV 97) (Tr. Vol.

III 136-138).

27

The terms of the visual easement must not be construed so as to include boats within the

definition

of "structure." The language of the easement

deed itself clearly evidences an

understanding between the parties that the BLM property was to be used as a marina and boats,
and their storage, are inseparable from such a use and were not intended to be prohibited by the

terms of the easement. As set forth above, Massachusetts law preserves the right of servient properly owners to use their property in whatever lawful way they choose, consistent with the terms of the easement. M.P.M. Builders. LLC v. Dwyer,442 Mass.

at9l. Inthis case the

servient property owner, BLM, is using its property in precisely the way that was originally
contemplated at the time the visual easement was created and consistent with the intent of the parties thereto.

Clear and convincing evidence of what the parties intended to be a "structure" at the time the easement was drafted in 1986, and their understanding of that term in 1999, is the fact that when LSP filed suit in 1999 alleging a violation of the visual easement, it only raised tlie

roof elevations of the two buildings on BLM's property. See Count

I of LSP's Complaint,

paragraphs 25-30.It made no claim that a boat is a "structure" as that term is used in the visual
:

easement, despite the fact that

BLM was storing boats above 19 feet above MSL prior to

1999.

(Tr. Vol.

III

138-140). It is also noteworthy that LSP did not address boats as "structures" in the

2006 Settlement Agreement either. (Ex. 39). It is obvious from the record that that thought did
not occur to LSP until2010. LSP has not met its burden of proof that a boat is a "structure" as that term is used in the

visual easement. Therefore, BLM's use of its property to store boats 19 feet above the Mean
Sea

Level does not violate the visual easement.

28

B. THE ROOF

TOPS OF THE "CAPT. E.G. DAVIS BUILDING' *GUARD SHACK'' DO NOT VIOLATE THE TERMS OF T}IE VISUAL AND EASEMENT GRANTED TO LSP DATED SEPTEMBER 30, 1986.

LSP seems to have abandoned this part of its case. Although pleaded in its Complaint,
LSP offered no evidence of where the two buildings at issue are situated on Lot 3, or what the elevations of their roofs are in relation to MSL or 19 feet above

MSL. When LSP rested, BLM

moved for a directed finding on this issuq, and the Court reserved its ruling. BLM again moved

for a directed finding at the conclusion of its evidence, and, again, the Court reserved its ruling
pending a decision on all issues heard at fial.
l

Having offered no evidence to support the claim that certain roof tops of BLM's
buildings violate the visual easement, judgment must enter for BLM dismissing that portion of LSP's Complaint with prejudice.

C. BLMOS CONSTRUCTION OF A RETAINING WALL AND SEASONAL STORAGE OF BOATS SEAWARD OF THE RETAINING WALL, ALL WITHIN THE 20 FOOT NON-EXCLUSIVE EASEMENT AREA, DOES NOT INTERFERE WITH LSP'S RIGHT TO CONSTRUCT AND MAINTAIN A DRAINAGE SYSTEM AND A SLOPED, GRADED EROSION AND FLOOD
PROTECTION BARRIER.I
i

The language in the grant of the non-exclusive easement and the historical development

of the marina by BLM provide clear evidenoe that BLM intended at all times relevant hereto to
use the easement area for marina purposes. The evidence at

trial clearly establishes that it

has

done so for over two decades by gradually developing its land as a marina in a southerly

direction along the common property line with

LSP. Notice of its intention to do so is

indisputable based upon documents recorded with the Bristol County Fall River District Regisky of Deeds. @xs. 1,2,4 ,5,7,9JAJ1,12,13 and l4). The photographs taken between 1986
29

and 2009 provide conclusive, uncontroverted physical evidence of the existing conditions in
1986 and in 2009, and how they changed during that time laches, estoppel and waiver as defenses.

frame. @x. 3a). BLM has pleaded

It took 23 years to build the marina as it exists today,

1999, which

and but for the litigation commenced

in

for all practical purposes was abandoned

by LSP as of May 2000, LSP has sat on its rights and watched BLM expend its time, effort and
money to build the retaining wall as an integral part of the marina. To complain now about the

use of the easement area for marina purposes is the epitome of inequity, and barred by the
defenses

raised.

In addition, it is significant to point out that when LSP filed suit in 1999, the action
complained of was not the construction bf *re retaining wall within the 20 foot non-exclusive
easement area, but rather the storage of boats on the top and sides of the bank. The importance

of this point is the when the Court interprets the easement, it must attempt to ascertain the intent of the parties to the easement when drafted. When suit was filed in 1999, a large portion of the
retaining wall was already constructed, yet LSP did not challenge BLM's right to build the wall.

It did not do so until it amended its complaint in 2010. Therefore, in addition to the laches
argument,

it is BLM's position that LSP's

omission to challenge the retaining wall

in

1999 is

due to LSP's understanding that the non-exclusive easement allows the marina to use the 20

foot easement area for marina prrrpor"r,,including building a retaining wall, an understanding
evidenced by its actions until it concocted its present argument in 2010 that the retaining wall

violates the easement. The record in this case clearly supports this conclusion as to LSP's
understanding of BLM's right to build a retaining wall as part of its marina operations. LSP

offered no evidence of an undersknding to the contrary. Additional evidence of LSP's state of

mind is the 2006 Settlement Agreement which provides for construction of a retaining wall to
30

within l0 feet of LSP buildings and pool. (Ex. 39). In fact, LSP did not offer any evidence at
trial from which the Court could conclude that the original intent of the parties to the easement
was consistent with LSP's position

in 1999 or 2010. Having failed to offer any such evidence,

LSP has not met its burden of proof. LSP's emphasis at trial was BLM's activities in 2008 and 2009 and how it effects the individual board members. rather than LSP as a.whole.

BLM does not contest LSP's right to challenge in the appropriate forum the construction
methodology employed by BLM to build the wall; that is, its structural integrity should LSP
choose

to do so.3 BLM argues that the issues now before the Court are whether or not the

language of the non-exclusive easement allows the construction of a retaining wall within the
!

easement area and the use of part of the easement area for marina related pu{poses, and not the

structural integrity of the wall. A claim of negligent construction is not within the jurisdiction

of the Land Court under M.G.L.A. c.185; Sec. 1(k) as there is no underlying dispute concerning
a proprietary interest easements are not

in land. The property lines delineating ownership and the location of the
the

in dispute. Therefore, there is "no right, title or interest in land" within

meaning of the statute. Shepoard v. Lansone, 16 LCR 155, 156157 (2008).

BLM maintains ttrat it has this right to build the retaining wall within the non-exclusive
easement area, and to use the non-exclusive easement area for marina

purposes. Specifically,

the detailed and comprehensive testimony of Dr. Peter Rosen, Ph.D., Coastal Geologist,
supports a finding that the retaining wall accomplishes what LSP is entitled to under the no[I

exclusive easement; that is, it provides:a sloped, graded erosion control and flood protection

barrier. BLM argues that a retainingi wall exceeds the effectiveness

t

of the pre-existing

BLM filed a Motion in Limine that was heard by the Court prior to the start of evidence. The Court ruled on the motion concluding that it would not hear evidence of damage to individual units and reserved its ruling on the allegation of negligent construction. (Tr. Vol. 123-24).
31

conditions for erosion control and flood protection, and that the area above the retaining wall
continues to be sloped and graded

in a manner reasonably consistent with the intent of thp

built
a

parties to the easement. In fact, LSP itself

retaining wall within, or immediately adjacent

to, the 20 foot easement

area when

it

added six feet onto the wall built by BLM in front

of

buildings 1land 12.Thatretaining *att,ias modified by LSP, serves as an erosion control and
flood protection barrier in exactly the same manner as the wall constructed by BLM.

BLM also points out that at no time did LSP undertake any action to "construcf'

sloped, graded erosion control and flood protection barrier and that the pre-existing conditions,

including the earth embankment, were created by BLM in the course of building the marina in phases. As noted above, when LSP did want to take some action within the 20 foot easement
area,

it constructed

a vertical retaining

wall by adding onto the height of a wall built by BLM.

Having done so, LSP has conceded by its actions the right to build a retaining wall within the
easement area and that such a wall

will

serve the purposes

of the easement. Therefore, it

follows that

it is within BLM's reserved

rights under the easement to change the existing

conditions by building a retaining wall so long as the rights of LSP are not infringed upon.

ln support of its argument that BLM

can build the retaining

wall and store boats within

the easement area without interfering with LSP's easement rights, BLM relies upon the direct examination of Dr. Peter S. Rosen. Ph.D. and the cross-examination of Donald N. Leffort, P'E.

Dr. Rosen has a Ph.D. in marine science with a concentration in geological oceanography and
holds a Master's degree in geology with a specialization in coastal geology. (Tr. Vo.

III

184).

He is also a Certified Professional Geologist. (Tr. Vol.

III 185). At trial Dr. Rosen was

III 187). Prior to his testimony,

qualified to render an opinion as a coastal geologist. (Tr. Vol.

he visited the site on three occasions, [eviewed the Ch. 91 Waterways License documents,
32

historic plans, a range of historic photographs, and examined the nature of Mt. Hope Bay. (Tr.

Vol.

III

188-189). Dr. Rosen identified and described the two coastal banks on the BLM

property, explained what a coastal bank is, the different types of coastal banks and the purpose
they serve. (Tr. Vol.

III 189). He testified that a coastal

III 190-191).

bank could be natural or manmade and

could be a vertical wall. (Tr. Vol.

Dr. Rosen testified that the coastal bank at issue

in this case acts as a vertical buffer to flooding and flood damage. (Tr. Vol.

III 191). Dr. Rosen III

walked the upper and lower levels of the retaining wall each time he was there. (Tr. Vol.

195). Dr. Rosen described the entire length of the retaining wall as the upper coastal bank. (Tr.

Vol. III 196). He described the area off the top of the wall at the upper bank

as a grassy slope

extending to the condominium buildings. He described a drainage system and a fairly uniform
grassy slope. (Tr.

Vol.

III

197). Dr. Rosen testified that a vertical coastal bank, comprised of

concrete, has a low likelihood of erosion, with less potential of erosion on top of the bank due

to a gentler slope causing a lower velocity of backwash. (Tr. Vol.

terms "slope" and "graded" (Tr. Vol.

III 199). He defined

the

III

199-2A0), and he defined a'osloped graded erosion arid

flood protection barrier" as follows:

a. A.

As a coastal geologist, could you tell me what a sloped graded erosion and flood protection barrier means tti you?

A flood protection barrier is some form that retards flooding, elevated water level. A sloped graded erosion and flood protection barrier means it
has slope to

it. It means one end is higher than the other, which can involve any level of
slope, from a very slight increase in elevation to vertical and graded means that

it is a smoothed off, leveled surface on that slope.

(Tr. Vol.III201).

JJ

Dr. Rosen testified that the vertical wall that he observed dwing his site visits provides
erosion control and flood protection for the LSP property, and he described how the wall
accomplishes the protection, that is, he explained the basis for his opinion. (Tr. Vol.

III

205-

206). His opinion applied to the entire length of the retaining wall. (Tr. Vol. III 206). He also
testified that a properly constructed retaining wall provides flood protection and erosion control

superior to that

of the coastal bank observed in the pictures of pre-existing conditions hp

i

reviewed. (Tr. Vol.

III 209-210). Dr. Rosen testified

that the segmented block wall that he

personally observed on the southerly 650 feet of the site provides flood protection and erosion

control for LSP superior to that which is shown in the photos he reviewed of prior existing
conditions. (Tr. Vol. tV 48).

Mr. Donald N. Leffort testified for LSP as to his opinion of the construction of the
retaining wall. (Tr. Vol.

I 169). The Court noted that whether the wall was constructed

well or

poorly is really not the critical issue in the case, which the Court identified as how does the wall
affect the erosion and drainage rights of LSP, and the location of the wall within the easement.

(Tr. Vol.I178-179). He testified that he was retained by LSP to give an opinion on the wall between south end of LSP's property and the southwest corner of Building 5. (Tr. Vol. testified that segmented walls can be used in proximity to water. (Tr. Vol. that he examined about 500 feet of the wall. (Tr. YoI.
tJte

I 225).

He

| 212).

He testified

I 227). Mr. Leffort's

opinion as to the

lack of geofabric behind the wall was based upon four eight-inch test holes over a 500 foot
length of wall. (Tr. Vol.

I 230). He admitted to having

no knowledge as to the length of the

geofabric behind the wall over the remaining 496 feet. (Tr.

Vol. 1230-231). He offered no

opinion as to the wall lying north of the southwest corner of Building 5. (Tr. Vol. I231). Mr.

34

Leffort admiued that installing geofabric;is not the only way to stabilize the wall. (Tr. Vol.

232-234). He also testified that he measured the wall for movement at four different points a total of 24 times over a three-month period and detected movement of one inch at one point.

The last measurement was in April 2010. (Tr. Vol.

236-2lS). Mr. Leffort admifted to

rendering his opinion without consideration of prior uses or disturbances of the bank on the site.

(Tr. Vol.

I 23S). He testified that photographs of previous

conditions of the embankment

showed signs of erosion. (Tr. Vol.

II 31-37). Mr. Leffort agreed that given the soil materials

shown in Exhibit 34, Photographs 9, 10, 11, 12,31,37 and 38, a retaining wall would give LSP greater erosion control and flood protection than what was shown in the photographs. (Tr. Vol.

II 44). Mr. Leffort

was not retained as an expert/consultant relative to LSP's drainage system

and, accordingly, offered no opinion on that topic. (Tr. Vol.

II 45).

One of LSP's other experts, James Holmes, likewise agreed on cross-examination that a
segmented

wall is suitable as a retaining wall in coastal areas, and that he questioned the wall

construction, not the use of a retaining wall as an erosion control and flood protection barrier.

(Tr. Vol.

II

139-140). He also only testified as to the block wall at the southerly end of the

property. (Tr. Vol.

II

140).

LSP also called Mr. Sterling Wall as an expert witness. His deposition transcript with
Exhibits was marked as Exhibit 30. His deposition testimony focused on the excavation of t$e
coastal bank (Ex. 30 P.

75). He testified that he was unaware of the historical use of

the

property as a railroad facility and admitted that a coastal bank may include man-made materials.
(E. 30 P.

75). BLM

refers the Court to Exhibit 30 and the objection raised thereon by Attomey

Kevin J. McAllister, who represented BLM at the deposition.

35

Based upon the testimony of both Dr. Rosen and Mr. Leffort, a vertical retaining wall ls

suitable as an erosion and flood protection barrier. The easement, as identified in its caption, is
a

non-exclusive easement. The retainingrwall acts as an erosion and flood control barrier. The

area above the

wall is sloped away from the LSP property line. It is, or has been in the

past,

graded and maintained by LSP. Nothing in the easement gives the residents of LSP the right to

walk within the non-exclusive easement area. Nothing in the easement identifres the slope or
grade to be constructed or maintained by LSP or provides a basis upon which the Court can find

that either the existing slope or grade above the retaining wall violate the language of the
easement.

LSP chatlenges the suitability of a retaining wall to provide erosion control and flood
protection to LSP's property, yet that is exactly what LSP did when it added onto the cement retaining wall in front of Buildings 10 and 11. (Tr.

Vol.I[.

106-107) (Tr. Vol. IV 83-84).There

are no legally tenable grounds upon whioh LSP can argue that the

wall it constructed in front of

as

Buildings 10 and 1l is allowed under the terms of the non-exclusive easement, but the wall
constructed by BLM is

not. Mr. John Lund testified the Keith Development, Inc. constructed

an observation deck within the 20 foot easement. He testified that it was required under the c. 91 Waterways License. (Tr. Vol.

IV 85). The observation deck is shown on Exhibit 7, page

12

of 15 as "Overlook No. 3". Also, since building the retaining wall in front of Building 10 and
11, LSP has not exercised the right to construct and maintain a sloped, graded erosion and flood

protection barrier anywhere within the easement area. LSP accepted what BLM built without
:

complaint until 2010, a year after it was completed. Furthermore,

BLM has the right to relocate the sloped, graded erosion and flood
i

protection barrier so long as it does not interfere with the purpose of the easement. M. P.M.

36

Builders. LLC

v. Dwvel 442 Mass. 87; 809 N.E.2d 1053 (2004).

In M.P.M. Builders, LLC,

the Supreme Judicial Court adopted the Restatement (Ihird) of Property (Servitudes) $4.8
(2000). In adopting $4.8, the Court held as follows:
We conclude that $ 4.8(3) is consistent with these principals in its protection of the interests of the easement holder: a change may not significantly lesson the utility of the easement, increase the burden on the use and enjoyment by the owner of the easement, or frustrate the purpose for which the easement was creatqd.

M.P.M. Builders. LLC,442 Mass. At 91. @91.

Although the M.P.M. Builders, LLC, Court noted that a servient owner may not resort
to self-help remedies, the evidence in this case is such that the Court can find that as BLM built
the retaining wall over the last two decades, it had good reason to believe that it was doing so

with the assent of

LSP. That is a finding

warranted by the evidence notwithstanding LSP's

untimely Complaint for Contempt. Based on its actions, LSP as dominant estate owner should

not now be allowed to raise the "self-help" defense to BLM's use of the non-exclusive
easement

in an effort to avoid the rule of law established by the SJC in M.P.M. Builders.

As in M.P.M. Bqilders, the deed and grant creating the easement in this case do not
expressly prohibit relocation. Therefore, BLM may relocate the easement at its own expense

provided the change

in location

does not significantly lessen the

utility of the

easement,

increase the burden on LSP's use and enjoyment

of the easement, or frustrate the purpose for

which the easement was created. ld. at 94. Based upon the evidence at trial, BLM has satisfied
each of the conditions

of the Restatement (Ihird) of Property (Servitudes) S4.S(3) (200q.

LSP is seeking a mandatory injunction compelling BLM to remove the retaining wall
and restore the embankment to its prior condition.

BLM

has raised the defenses of laches ar'rd

waiver. BLM activities have occuned in full view of LSP over a period of more

than two

37

decades. LSP, by itself adding onto a retaining wall, has actively participated in the precise

activity of which it now complains.

It is well established that injunctive relief may be refused where the Plaintiffis guilty of
estoppelorlatches. Malinoskiv. D. S.McGrath.Inc.,283 Mass. l, 11, 186N.8.225,(1933); In the case at bar, LSP, through its Board of Managers, testified that it was aware at all times
that the retaining wall was being constnicted, with each witness claiming ignorance of LSP's
legal rights, despite documents to the contrary. Incredibly, they testified that they believed that the construction by BLM to be legal because the Lunds told them so. Now, after completion

of

the wall, LSP argues Removal

it

has been advised of its legal rights and seeks removal of the wall.

will be a severe burden on BLM. It will

cost a

lot of

money, cause much

inconvenience, and reduce usable marina space within the non-exclusive easement area. BLM
does not seek to use the doctrine of laches as a sword, which is to gain rights by overburdening an easement, but rather as a shield to protect

it from and avoid an inequitable result.

Although LSP did file suit in 1999 raising issues relative to the roof tops of the Capt. E. G. Davis building and the Guard Shack buildings, alleging they violated the visual easement
(Cognt I), LSP did not challenge the construction and placement of the retaining wall within the 20-foot non-exclusive easement until it ainended its complaint in October of 2010, a few weeks before the start of

trial. The Amended Complaint in 2010 challenges BLM's construction of

part of the retaining wall between building 5 and LSP's swimming pool in 2000, ten years after the fact. The Amended Complaint likewise challenges the retaining wall construction in 2008 and 2009, well after

ttr.

"orlrt*ction

of the wall was completed, and 23

years after the first

retaining wall was constructed within the 20-foot non-exclusive easement area. The case was

38

pending from February 1999 to October 2010 before LSP raised its objection to the retaining

wall

as being

in violation of the 20-foot non-exclusive easement.

the

LSP unjustifiably delayed in prosecuting its challenge to the construction of

retaining wall within the non-exclusive easement area.

It was represented by counsel at all

times relevant hereto. It had actual knowledge of the construction activity by BLM, and in fact,

participated in the construction of a portion of the wall and expressed appreciation to BLM for

the construction of another part of the wall by way of a written thank you letter in Octobe{,
2008 and by reference in its news letter of March, 2009. (Exs. 38 and 40). The thank you note and newsletter both referenced the segmbnted block wall. BLM reasonably relied upon LSP's

implied consent to the construction of the wall as evidenced by the actions of LSP's Board of
Managers. BLM has been prejudiced by LSP's unjustified delay of two decades in challenging

BLM's right to construct the wall.

To the extent that LSP argues that the equitable defense of laches is not available to

BLM

because

it

acted inequitably, that argument must

fail. BLM anticipates

that LSP will

claim that BLM acted in bad faith by not securing all necessary government permits to
construct the retaining

wall. BLM

disagrees with that contention and again refers the Court to

its Motion in Limine filed at the start of trial and the Court's ruling thereon. In any event, the
governmental permits identified by LSP do not determine private property rights. See also the

permits, Orders of Conditions and licenses that BLM did obtain. (Exs. 7, 9,10,17,12,13,14,25
and26). Judicial review of the applicability of various statutes, regulations, codes or ordinances is premature without a determination that aliadministrative remedies have been exhausted. LSP offered no such evidence.

39

Again, as noted above, LSP's inaction is the result

easement

of its understanding that the

area

is non-exclusive, and that BLM may use the easement

for marina Purposes

so

long as

it does not interfere with LSP',s rights under the easement'

LSP now denies that

position' understanding despite a clear record contrary to its current

D. LSP'S COMPLAINT FOR CONTEMPT.

for contempt' At its first appearance before the court on the Plaintiff s complaint
were built subsequent to the May BLM admitted that portions of the retaining wall built by it

working within the 2O-foot noni 23,Ixxl,preliminary injunction. The Defendant's reasons for
in the brief' exclusive easement were set forth at trial and argued
catse, BLM asks that the Court hear Should LSP seek attomey's fees in the contempt

the opportunity to offer testimony and briefs on that matter on a motion with all parties having
fees are warranted given the admission the issue as to whether or not an award of attorney's

of
s

BLM

after May 23 as early as July, 20 I 0, that work took place

'

2A00

'

BLM challenges LSP'

expended to prove its case, and the unclean right to attorney's fees given the minuscule effort

handsoflSP.
o$ergd to move BLM likewise admitted the encroachment in its answer and

"|
't'"

1
a

gry"gg portion of the yun.!." BLM's

Amended Answer to the Amended complaint,

:

persisted in prosecuting its trespass claim at paragraph 60. For feasons known only to it, LSP

and its offer to move the offending part trail despite BLM's answer to the amended complaint

of the retaining wall. LSP never responded to the offer' OF E. BLM'S TRESPASS ONTO LSP'S PROPRTY BY A PART

ITS RETAINING WALL.

40

LSp pleaded in Paragraph 60 of its Amended Complaint that BLM erected part of
retaining wall on its property. To the extent that such allegation is true, BLM
has offered

the
i

to

i i

move the wall from LSP's property to eliminate any encroachment' See paragraph 60

of

BLM's Amended Answer to Amended Complaint. Mr. John C. Lund also testified at trial that BLM was willing to move the wall. LSP has not responded to that offer. The alleged
access road encroachment is at the extreme southerly end of the property in the vicinity of the

from Club Street. (Ex.21).

F.
Mr.
James

BLM'S COT]NTERCLAIMS FOR TRESPASS.

Hall testified at trial on behalf of BLM relative to Exhibit 43 and the

encroachments shown thereon. (Tr. Vol.

III 55-90). LSP offered no credible evidence to rebut

43. LSP attempQd the testimony of James Hall or the evidence of trespass set forth in Exhibit

to

discredit

Mr. Hall's

testimony

by way of

another plan which did not depict the

shown on Exhibit encroachments. (Ex. 21). NIr. Hall testified that the encroachments were not
prepared to show 21 because it was prepared for a different purpose; however, Exhibit 43 was

elevations for building encroachments onto BLM property. Exhibit 21 was prepared to show
Federal Emergency Management Agency (FEMA) pu{poses'

BLM also challenges the right of LSP's

members

managers, agents, servants, employees and

and

to enter onto BLM property to mow grass and to cut down and remove trees

in support of protective plants. BLM relies upon the clear language of the easement document
its legal position. @x. 5). G. CONCLUSION Visual For all of the reasons set forth above, LSP's claims that BLM has violated the
must be dismissed' Easement and/or the 20 footNon-Exclusive easement, in any manner'

4l

As to BLM's counterclaim, LSP failed to offer any evidence to rebut BLM's evidence

that LSP's building improvements are encroaching upon BLM's properly and that

such

encroachments constitute a trespass. Accordingly, BLM is entitled to judgment in its favor on

its claim of trespass and an order that all such encroachments be removed and the property
restored to its prior condition.

LSP's clairn that BLM is trespasging onto LSP's property by way of a portion of the retaining wall at the southerly end of the property is addressed above. BLM stands by its
pleadings and testimony at trial.

Borden Light Marina, Inc.

By Its Attorney,

BBO #055645
Brennan, Recupero, Cascione, Scungio

& McAllister, LLP

One Church Green, P.O. Box 488 Taunton, MA 02780

(s08)

822-0178

- S-rt

E-Mail: ebrennan@brcsm.com

42