Opinion
21-P-640
04-11-2022
Linda G. SMITH v. Dinis SILVA & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Linda G. Smith, appeals from a Land Court judgment entered in favor of the defendants, Dinis Silva and his landscaping businesses, Masterscapes, LLC, and Silvascapes, LLC (collectively, Silva). Smith argues that the judge, in allowing Silva's motion for summary judgment, erred in (1) construing an easement that benefits Smith's property and burdens the abutting property owned by Silva, and (2) dismissing Smith's claims against Silva for trespass and trespass against trees. We affirm.
Background. At issue is a ten-foot wide easement running over Silva's property (lot 5C) in favor of Smith's abutting property (lot 3A) to be used for maintaining and upkeeping arbor vitae "as may grow on Lot 3A, along that line." The easement was created in 1997 when Smith conveyed lot 5C to Silva's predecessor in interest. Silva acquired lot 5C in 2015. Smith brought this action alleging that Silva damaged trees in the easement area and on her property during cutting and excavation in preparation for installing a driveway in that area, and then Silva constructed the driveway and caused commercial vehicles to use it.
The easement language in the 2015 deed to Silva differed slightly from the language in the 1997 deed creating the easement, which Smith believes is more favorable to her. The judge "addressed the parties’ respective rights and restrictions under the 1997 [e]asement," and the judgment construed that easement. There is no merit to Smith's argument that the judge erred in also mentioning the language of the 2015 deed.
In her first amended complaint (which is the operative complaint), Smith sought damages under G. L. c. 242, § 7, for trees harmed during Silva's construction in the easement (count 1); damages for trespass or continuing trespass based on Silva's excavation in the easement (count 2); and a declaration under G. L. c. 231A concerning Smith's rights in the easement (count 3). On Silva's motion for summary judgment, the judge issued a thoughtful memorandum of decision. She ordered the entry of judgment dismissing counts 1 and 2 and declaring, on count 3, that Silva was permitted to remove and cut back trees in the easement area to the extent such activities did not interfere with Smith's limited right to enter the easement for maintenance of the arbor vitae that grow on lot 3A.
Discussion. We review de novo an order allowing a motion for summary judgement. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We ask "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
1. Interpretation of the easement. The relevant language of the 1997 deed provided as follows:
"Further reserving to the grantor, her heirs and assigns, a ten (10’) foot wide easement over said lot 5C running parallel to the property line shown on said plan, which property line has the course bearing: ‘THENCE N. 64 degrees 04’ 14" E. 142.95 feet to a point,’, [sic ] which easement may be used by the grantor, her successors in title, heirs and assigns, for purposes of maintaining and up keeping the arbor vitae as may grow on Lot 3A, along that line.
"And it is expressly understood and agreed that the said restrictions and easements above specified shall attach to and run with the land and it shall be lawful only for the said grantor[,] her heirs, successors-in-title, or assigns...."
Smith argued that the 1997 deed created a negative easement that restricted Silva from damaging the mature trees that grow on lot 3A but extend into lot 5C, as she claimed was her intent when she created the easement. Silva, in contrast, asserted that the 1997 deed created an affirmative easement that gave Smith the limited right to enter his property for the purpose of maintaining trees that grow on her property, but put no restriction Silva's use of his own property as long as such use did not interfere with Smith's authorized use of the easement.
The judge essentially agreed with Silva, ruling that the easement (1) unambiguously permitted Smith to enter Silva's property to maintain arbor vitae growing on her own property, but (2) contained no language suggesting that Smith was granted either the right to grow arbor vitae on Silva's property or the right to prevent Silva from cutting branches that extended onto his property. The judge concluded that this was an affirmative easement, giving Smith the right to enter Silva's property for specified purposes -- not a negative easement, which would restrict Silva's use of his own property without conferring any right of entry on Smith.
On appeal, Smith repeats her claim that the easement was negative in nature, but she fails to explain how the judge's contrary conclusion was erroneous. Smith contends that her original intent in creating the easement was to preserve a ten-foot strip on the abutting property (now Silva's) in which the branches and roots of the arbor vitae on her property could continue to grow. But, as the judge correctly observed, when "the language of the easement is clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different" (quotations and citation omitted). Westchester Assocs. v. Boston Edison Co., 47 Mass. App. Ct. 133, 135 (1999). Nothing in the plain language of the easement supports Smith's interpretation, nor did the judge err in declining to consider Smith's current deposition testimony about her intent in 1997. The meaning of a deed "is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances" (emphasis added). Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). Here, no consideration of the circumstances attending creation of the easement was necessary.
Smith also appears to contend that "[b]ecause the lawful use of the easement was restricted to [her]" (and her heirs, successors, and assigns), Silva's actions within the area covered by the easement were impermissible. To the extent that Smith means to suggest that Silva was using the easement that belongs only to her as the owner of her property, she is mistaken. Silva had no need to rely on the easement in order to enter and conduct activities in the area of his own property covered by the easement. Rather, Silva, as the owner of the servient estate, "retain[ed] the use of his land for all purposes except such as [were] inconsistent with the right granted to the dominant owner" (citation omitted). Patterson v. Paul, 448 Mass. 658, 666 (2007).
2. Trespass claims. Smith's claim of trespass required proof that she possessed the land on which Silva assertedly trespassed. See Dilbert v. Hanover Ins. Co., 63 Mass. App. Ct. 327, 333 (2005) (essential element of trespass claim is possession of land on which trespass occurred). The same was true of Smith's claim of trespass to trees. "A person who without license ... cuts down ... or otherwise destroys trees ... on the land of another shall be liable to the owner in tort" (emphasis added). G. L. c. 242, § 7.
Here, based on the summary judgment record, the judge determined that it was undisputed that all of Silva's actions of which Smith complained occurred not on Smith's property but within the easement area on Silva's own property. The judge then ruled that Silva had a right to take such actions. Although "[w]here the trunk of a tree stands wholly on the land of one proprietor, [she] has been deemed the owner of the entire tree ... there is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises." Levine v. Black, 312 Mass. 242, 243 (1942). See Shiel v. Rowell, 480 Mass. 106, 112 (2018) (reaffirming "Massachusetts rule" that "authorize[s] the cutting back of overhanging branches and intruding roots"). The judge thus ruled, and we agree, that there was no dispute that Silva did not trespass on Smith's land or violate G. L. c. 242, § 7.
On appeal, Smith contends that the judge, in concluding that the material facts were undisputed, improperly ignored the assertions in Smith's complaint that Silva had damaged portions of trees on Smith's side of the property line. P.Br.34-36. But the complaint was unverified, RA64, and a nonmoving party "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Smith also contends that the judge should not have disregarded the opinion of Smith's expert arborist, as (in Smith's view) expressed in an interrogatory answer, that Silva's cutting activities had extended onto Smith's own property. The interrogatory answer was filed with the Land Court, and so Silva's motion to strike it from Smith's record appendix is denied. But Smith failed to cite that interrogatory answer in her February 15, 2021 response to the relevant paragraph of Silva's concise statement of assertedly undisputed material facts, and thus the judge was not obligated to consider it. As the judge noted, to the extent Smith failed properly to controvert Silva's statement of undisputed facts, those facts were deemed admitted, pursuant to Rule 4 of the Rules of the Land Court (2005).
Smith also points to various statements, in documents written by counsel for Silva, suggesting that Silva damaged trees on Smith's property. But one of the documents merely repeated Smith's own unverified allegations, another document, while characterizing the damaged trees as Smith's property, did not purport to waive the Massachusetts rule regarding overhanging branches and intruding roots discussed above, and the third document quoted counsel as saying that Silva "cut trees that grow on his neighbor's lot into his property. The cutting occurred on his property with an easement." None of these documents created a genuine dispute of material fact as to the location of the cutting.
Moreover, none of them was cited in Smith's response to Silva's statement of undisputed facts, and thus the judge was not required to consider them. See note 3, supra.
Smith next points to photographs in the record that, according to her brief, show damage to trees "on [her] property." None of the photographs, however, gives any indication of where the property line lies in relation to the visible damage to the trees.
Smith finally contends that the judge should not have stricken certain supplemental interrogatory answers in which Smith asserted that Silva had injured trees on her property. But Smith fails to offer any developed argument explaining how the judge erred or abused her discretion in striking the answers. See Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020) (claims not adequately argued on appeal are waived). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019). For all of the foregoing reasons, the judge did not err in dismissing Smith's claims for trespass and trespass to trees.
3. Prematurity of appeal. Smith finally argues that the judge did not resolve Silva's counterclaims, and thus that no final judgment issued, rendering Smith's own appeal premature. We do not agree. The judgment, after disposing of Smith's claims, expressly stated that it was "a full adjudication of the parties’ claims in this case, and all prayers for relief by any party to this action that are not granted in the preceding paragraphs are denied."
Judgment affirmed.