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Koepp v. Simon

Court of Appeals of Massachusetts
Aug 6, 2021
No. 20-P-1142 (Mass. App. Ct. Aug. 6, 2021)

Opinion

20-P-1142

08-06-2021

STEPHEN J. KOEPP & another [1] v. STEVEN E. SIMON, individually and as trustee, [2] & others. [3]


Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This dispute concerns a driveway easement held by the defendants for passage over the plaintiffs' adjacent property. After the defendants made alterations to the driveway, the plaintiffs brought suit in the Superior Court, claiming that the alterations exceeded the scope of the defendants' easement rights and constituted a trespass. The judge, following a bench trial, ruled in favor of the plaintiffs, and the defendants appeal. We affirm.

Background.

The judge made the following factual findings. The driveway in question is located along the westerly line of the plaintiffs' property and serves as access to and from the defendants' property. Over time, the driveway became uneven in spots, and cracks and potholes developed in the asphalt.

In November 2014, after notifying the plaintiffs that they planned to improve the driveway, the defendants removed the asphalt and replaced it with two parallel raised concrete driving lanes. At various points near the plaintiffs' garage, the new driveway protruded several inches above the grade of the adjoining ground and that of the former driveway. The raised surface hindered the plaintiffs from driving to and from their garage.

When the plaintiffs complained, the defendants added gravel fill next to the new driveway, the plaintiffs' existing driveway (which is not burdened by an easement), and the entrance to their garage. The gravel fill extended multiple feet beyond the new driveway toward the garage. The judge found inferentially that even with the fill, the new driveway is less convenient and useful to the plaintiffs than the former one. The defendants offered to replace the fill with cement grading, but the plaintiffs rejected that proposal.

Based on his subsidiary findings, the judge ultimately concluded that "[t]he work performed in replacing the driveway was reasonable, except to the extent of the appearance and stability of the grading done where the plaintiffs' other driveway connect[s] with the driveway for which the defendants have an easement, and where the new drivewa[y] abuts the garage area." The judge thus ordered the defendants to "replace or repair the driveway . . . in a manner such that grading extending beyond the easement and beyond that existing prior to the construction of the new driveway is not necessary to enable the plaintiffs to have access to the plaintiffs' other [driveway] and garage."

Discussion.

We accept the judge's factual findings, as no party challenges them as clearly erroneous. See Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014). We review the judge's legal conclusions de novo. See id.

''It is well settled that where there are several owners in common of a private way, each owner may make reasonable repairs which do not injuriously affect his coowners, but he cannot make any alteration of the course of the way, or any change in its grade or surface, which makes the way less convenient and useful to any appreciable extent to any one who has an equal right in the way." Killion v. Kelley, 120 Mass. 47, 52 (1876). See Crowley v. J. C. Ryan Constr., Inc., 356 Mass. 31, 35-36 (1969); Kelley v. Saltmarsh, 146 Mass. 585, 585 (1888). Here, the defendants do not quarrel with the judge's conclusion that the alterations to the driveway made it less convenient and useful to the plaintiffs. Rather, as the defendants represent in their brief, they appeal only "from the remedy the [judge] imposed." Specifically, the defendants contend that the judge should have resolved the dispute "simply by holding [the defendants] responsible for maintaining the fill." The defendants also asserted at oral argument that the judge could have, in the alternative, accepted their proposal to replace the fill with cement grading.

The defendants' arguments fail because the judge lacked the power to order a remedy that would require the plaintiffs to make changes to their property beyond the boundaries of the easement. An owner of an easement has no right to change its grade or surface such that another owner "would be required to adapt his land to the new level by construction or by grading." Crowley, 356 Mass. at 35. See Killion, 120 Mass. at 53 ("Even if the plaintiffs were willing to pay [the defendant] the expenses of thus adapting his land . . ., he could not be compelled thus to change his estate against his will"). Accord Kelley, 146 Mass. at 586. Nor could "a court of equity" require an owner to do so "without violating his right to the uninterrupted enjoyment of his estate." Killion, supra at 53.

The record does not support the defendants' claim at oral argument that their proposal to install cement grading would only involve work within the easement boundaries.

The defendants do not identify a remedy that the judge could have ordered without running afoul of these settled principles. While claiming that the judge failed to consider a number of equitable factors -- for instance, that the plaintiffs have another means of ingress and egress, that they mainly use the garage for storage, and that the construction of the garage caused the driveway to sink -- the defendants do not explain how those factors are relevant to the question of remedy. And although we agree that Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 (2016), relied on by the judge, is not precisely on point, the other cases cited in the judge's decision support his legal conclusions. In any event our review of the legal issues is de novo; thus, even assuming that the judge erred by relying on Taylor, it was not reversible error.

We note that the defendants, while faulting the judge for not making findings regarding the use and construction of the garage, did not themselves include such findings in the proposed findings of fact they filed after trial.

Judgment affirmed.

Blake, Shin &Walsh, JJ.

The panelists are listed in order of seniority.


Summaries of

Koepp v. Simon

Court of Appeals of Massachusetts
Aug 6, 2021
No. 20-P-1142 (Mass. App. Ct. Aug. 6, 2021)
Case details for

Koepp v. Simon

Case Details

Full title:STEPHEN J. KOEPP & another [1] v. STEVEN E. SIMON, individually and as…

Court:Court of Appeals of Massachusetts

Date published: Aug 6, 2021

Citations

No. 20-P-1142 (Mass. App. Ct. Aug. 6, 2021)