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Cannata v. Berkshire Natural Res. Council, Inc.

Appeals Court of Massachusetts

September 4, 2008, Argued; March 9, 2009, Decided

No. 07-P-992


 [**1252]  [*790] DUFFLY, J. The owners of eight developed lots in a subdivision in the town of Alford brought this action against Berkshire Natural Resources Council, Inc. (Berkshire), a charitable corporation dedicated to the preservation of outdoor space. Berkshire owns a large undeveloped parcel consisting of about 800 acres (locus) abutting the subdivision, access to which is over the ways of the subdivision. The plaintiffs and Berkshire have easements over the ways; the defendant Reed Rubin holds the fee in the ways; the Rubin defendants, see note 2, supra, own undeveloped lots in the subdivision. Learning of Berkshire's plans to open the locus to the public for recreational purposes, the plaintiffs sought a declaration that Berkshire has no right to invite the general public to access its property by use  [***2] of two of the ways, and that a "Declaration of Restrictive Covenants" (Declaration) recorded in connection with the subdivision plan has expired and a purported amendment thereto (Amendment) is invalid. 3 Berkshire filed a counterclaim seeking a declaratory judgment that Berkshire has the right to invite the general public across the ways, that the Declaration has not expired, and that the Amendment thereto is valid; it also sought dismissal of the plaintiffs' amended complaint.

Acting on cross motions for summary judgment, a Superior Court judge granted the defendants' motion and entered a judgment declaring that Berkshire has the right to invite the public [*791]  to use the subdivision ways to access the locus. The plaintiffs' claims were dismissed. 4 The parties' joint motion for entry of final judgment  [***3] was thereafter granted. 5

 [**1253] In their appeal from that judgment, the plaintiffs argue in essence that the ways are (and were designed) for residential use and that references  [***5] to the public in the various easement grants are intended only to reflect that members of the public may use the ways to visit the residents of the subdivision. They further claim that permitting the general public to use the subdivision ways to access the locus will "overburden" their easement rights by creating additional traffic and by increasing the plaintiffs' maintenance costs and exposing them to unforeseen liability. Upon our independent review of the appropriate summary judgment materials, we affirm the judgment declaring that Berkshire [*792]  has the right to invite the public to use the subdivision ways to access the locus and dismissing the plaintiffs' claims for nuisance and trespass. We remand for such additional proceedings as may be necessary to permit the judge to declare any remaining rights of the parties.

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73 Mass. App. Ct. 789 *; 901 N.E.2d 1250 **; 2009 Mass. App. LEXIS 298 ***


Prior History:  [***1] Berkshire. Civil action commenced in the Superior Court Department on June 28, 2002. The case was heard by Daniel A. Ford, J., on motions for summary judgment, and entry of final judgment was ordered by him.


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Civil Procedure, Appeals, Appellate Jurisdiction, Final Judgment Rule, Judgments, Entry of Judgments, Multiple Claims & Parties, Interlocutory Orders, State Court Review, Trials, Bench Trials, General Overview, Settlements, Settlement Agreements, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Burdens of Proof, Nonmovant Persuasion & Proof, Genuine Disputes, Legal Entitlement, Materiality of Facts, Supporting Materials, Affidavits, Pleadings, Complaints, Real Property Law, Encumbrances, Adjoining Landowners, Easements, Limited Use Rights, Easements, General Characteristics, Easement Creation, Express Easements, Deeds, Construction & Interpretation, Validity Requirements, Property Descriptions, Reviewability of Lower Court Decisions, Preservation for Review, Governments, Courts, Authority to Adjudicate, Evidence, Allocation, Torts, Nuisance, Elements