JAMES MAGUIRE & Others v. PLANNING BOARD OF HAMILTON & Others.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-229

JAMES MAGUIRE & others1

vs.

PLANNING BOARD OF HAMILTON & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendants Patricia and Nazir Shamsuddin appeal from a Land

Court judgment invalidating defendant planning board of

Hamilton's (board) approval of the Shamsuddins' proposed

subdivision plan. Acting on cross motions for summary judgment,

a Land Court judge concluded that the board exceeded its

authority in approving the plan because the plan employed a

private way in a manner that would overload the Shamsuddins'

easement over the way. Agreeing with the judge's conclusion

that, in the circumstances of this case, the proposed use of the

easement as a subdivision road would violate the bright-line

1 Jennifer Maguire, Brett McKechnie, and Laurie McKechnie.

2 Patricia Shamsuddin and Nazir Shamsuddin.
rule reaffirmed in Taylor v. Martha's Vineyard Land Bank Comm'n,

475 Mass. 682, 686 (2016), we affirm.

Background. We set forth the undisputed facts drawn from

the summary judgment record. See LeFort Enters., Inc. v.

Lantern 18, LLC, 491 Mass. 144, 145 (2023). The Shamsuddins own

two parcels of land originally shown on separate subdivision

plans. They own "lot C" as shown on a subdivision plan dated

March 24, 1956, and a portion of "lot 28" as shown on a

subdivision plan dated October 12, 1960.3 Lot 28 abuts the

western side of lot C, and a fifty-foot-wide, paved private way

runs along the eastern side of lot C. The plaintiffs, the

Maguires and the McKechnies, own properties that also abut the

private way. The plaintiffs have easements over the private

way, and they use it to gain access to Meyer Road, the nearest

public way.

The Shamsuddins proposed to create three new lots, each

incorporating property derived from lot C (toward the front of

each new lot) and lot 28 (at the rear of new each lot). Two of

the lots would have frontage on, and would be accessed by, the

3 More precisely, the portion of lot 28 owned by the Shamsuddins
is shown as lot 5 on a 2013 "approval not required" plan.
Following the terminology adopted by the judge and the parties,
we refer to the Shamsuddins' portion of lot 28 shown on the
subdivision plan simply as "lot 28."

2
private way abutting lot C.4 Lot C has the benefit of an

easement over the private way; however, lot 28 does not.5

Anticipating the overloading issue, the Shamsuddins proposed

that residential homes would be constructed entirely on the

portions of the new lots derived from lot C. The board approved

the subdivision plan with certain conditions, one of those

conditions being that the placement of any structures on the new

lots be limited to lot C.

The plaintiffs appealed the board's decision to the Land

Court pursuant to G. L. c. 41, § 81BB. The judge concluded that

the board exceeded its authority in approving the subdivision

plan because the proposed use of the private way, which would

benefit land derived from lot 28, would overload the easement,

which is appurtenant to the plaintiffs' lots and to lot C, but

not to lot 28. Accordingly, the judge annulled the decision

approving the subdivision plan.6

4 The third lot would have frontage on both the private way and
on Meyer Road, with direct access to Meyer Road.

5 The judgment in this case included a declaration that lot C
benefited from an express easement over the private way and
ordered that a deed be modified to properly reflect that
easement. The plaintiffs do not challenge that aspect of the
judgment. The judge also found that lot 28 does not have the
benefit of an easement over the private way, and the Shamsuddins
concede this point.

6 The judge also concluded that the board exceeded its authority
by failing to modify the conditions of two earlier subdivision
approvals that restricted the number of houses on the lots in

3
Discussion. "Summary judgment is appropriate where there

is no material issue of fact in dispute and the moving party is

entitled to judgment as a matter of law." HSBC Bank USA, N.A.

v. Morris, 490 Mass. 322, 326 (2022). We review the decision de

novo. See id.

"We have long held that a 'right of way appurtenant to [a

particular piece of] land . . . cannot be used by the owner of

the dominant tenement to pass to or from other land adjacent to

or beyond that to which the easement is appurtenant" (footnote

omitted). Taylor, 475 Mass. at 686, quoting Murphy v. Mart

Realty of Brockton, Inc., 348 Mass. 675, 678-679 (1965). See

Greene v. Canny, 137 Mass. 64, 68 (1884). Indeed, "'[a]bsent

. . . consent [from the owner of the servient estate], use of an

easement to benefit property located beyond the dominant estate

constitutes an over[load]ing of the easement' (citation

omitted)." Taylor, supra, quoting McLaughlin v. Selectmen of

Amherst, 422 Mass. 359, 364 (1996). "This limitation on the

question and by failing to obtain consent for modification from
the owner of an affected lot. In addition, the judge declared
that although the private way would be overloaded, it would not
be overburdened. The Shamsuddins and the plaintiffs in their
cross appeal contest various aspects of these additional
rulings. Because we affirm the annulment of the plan on the
grounds of overloading, we need not reach any of these issues;
if they recur at all, it will be under entirely different
circumstances. In addition, the plaintiffs stated in their
brief that we need not address their cross appeal if we affirm
on the issue of overloading.

4
permissible use of easements is a bright-line 'rule [meant to]

avoid[] otherwise difficult litigation over the question whether

increased use unreasonably increases the burden on the servient

estate.'" Taylor, supra at 386, quoting Restatement (Third) of

Property: Servitudes § 4.11 comment b (2000).

While recognizing this bright-line rule, the Shamsuddins

contend that it does not control this case because they are not

proposing to construct a structure on, or to make any active use

whatsoever of, the portions of the new lots that derive from lot

28. They contend that the new lots make only passive, not

actual, use of lot 28 -- to satisfy the town's minimum lot size

requirement for the zoning district in which the lots are

situated. At oral argument, the Shamsuddins even suggested they

would be willing to erect fences across the new lots at the

boundary between lot C and lot 28 to prevent the lot 28 portion

of the new lots from deriving any benefit from the use of the

private way. In support of their argument, the Shamsuddins rely

on a 2005 decision of a different Land Court judge, which the

Land Court judge in this case distinguished on the facts and

also considered to have been superseded by subsequent

"clarifications of the law." In any case, the 2005 Land Court

decision is not binding on us. See Blue View Constr., Inc. v.

Franklin, 70 Mass. App. Ct. 345, 354 n.10 (2007).

5
The Shamsuddins in effect argue that the bright-line rule,

which prohibits using an easement for the benefit of adjacent

property to which the easement is not appurtenant, should not

apply where the easement will not actually be used for access to

the adjacent property, or where such use would be de minimis.

This argument, however, has been expressly rejected. See

Taylor, 475 Mass. at 686, quoting Restatement (Third) of

Property: Servitudes § 4.11 comment b (2000) (bright-line rule

"applies 'even if no additional use of the easement or burden on

the servient estate would ensue'"). The Shamsuddins' suggestion

that "the McKechnies are in a position, both physically and

legally, to make sure that no one will use the Private Way to

access any part of Lot 28" invites precisely the type of

litigation over the nature and extent of use of the adjacent

land that the bright-line rule is intended to prevent.

Judgment affirmed.

By the Court (Rubin,
Massing & D'Angelo, JJ.7),

Clerk

Entered: March 15, 2023.

7 The panelists are listed in order of seniority.

6