Perry, et al. v. Aiello, et al. (Lawyers Weekly No. 11-121-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1309 Appeals Court SAMUEL D. PERRY & others,[1] trustees,[2] & another[3] vs. VIRGIL AIELLO & others.[4] No. 16-P-1309. Suffolk. May 3, 2017. – September 19, 2017. Present: Kinder, Henry, & Desmond, JJ. Easement. Way, Private. Real Property, Easement, Restrictions. Adverse Possession and Prescription. Practice, Civil, Injunctive relief. Civil action commenced in the Land Court Department on June 11, 2013. The case was heard by Robert B. Foster, J. Diane C. Tillotson for the plaintiffs. Paul Needham for the defendants. HENRY, J. The trustees of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts, Trusts for the Benefit of King’s Chapel (the King’s Chapel trustees); 66 Beacon Street, LLC (LLC); and the DeLuca defendants own abutting properties, and dispute the extent of the rights the DeLuca defendants have in a ten-foot wide passageway which runs between the King’s Chapel property on one side, and the DeLuca and LLC properties on the other side. A judge of the Land Court concluded that a 1947 agreement between the parties’ predecessors in interest is partially enforceable and limits the DeLuca defendants’ use of the portion of the passageway they do not own but over which they have a right of passage. The judge rejected the DeLuca defendants’ assertion that they have acquired by prescription the right to park on the passageway, but concluded that they may temporarily stop a truck in the passageway once per day to load trash and transport it off site. We affirm in part and reverse in part. Background. The DeLuca defendants own four lots in the Beacon Hill section of Boston at 7-17 Charles Street which, since before 1920, have housed DeLuca’s Market, a grocery and wine store. DeLuca’s Market is bounded by Charles Street to the west, Branch Street to the north, 65-66 Beacon Street (owned by the LLC) to the south, and the passageway to the east. Across the passageway is 63-64 Beacon Street, owned by the King’s Chapel trustees, which runs the full length of the passageway and abuts Branch Street to the north and Beacon Street to the south. The LLC property, 65-66 Beacon Street, is bounded by the DeLuca defendants’ property to the north, the passageway to the east, and Beacon Street to the south. The judge found and […]