RALPH P. AMELIA, Trustee, & Others v. 10 JUNIPER HILL ROAD LLC & 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

24-P-77

RALPH P. AMELIA, trustee,1 & others2

vs.

10 JUNIPER HILL ROAD LLC & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, as trustees of two realty trusts, commenced

this action against the defendants, an LLC4 and a realty trust,

for nuisance and declaratory relief based on the presence of a

concrete barrier blocking Pigeon Lane, a private way abutting

the defendants' properties. The plaintiffs maintain that the

1 Of the Amelia Family Nominee Trust.

2Anna L. Amelia, trustee of the Amelia Family Nominee
Trust, and Lisa Lyons, trustee of the LAL Realty Trust.

3James F. Sweeney and Emily Sweeney, trustees of the 104
Pigeon Lane Realty Trust. Two additional defendants, Zadik and
Alis Ozcan, were named in the complaint but were dismissed by
consent before discovery began.

4While this suit was pending in the trial court, 10 Juniper
Hill Road, LLC conveyed 10 Juniper Hill Road to another,
reserving to itself the fee in Pigeon Lane.
barrier interferes with their easement rights in the southern

portion of Pigeon Lane. The plaintiffs appeal from a judgment

of a Land Court judge declaring that (1) the plaintiffs' rights

over Pigeon Lane are limited to the prescriptive rights

delineated in Corcoran vs. Dellepigne, Mass. Land Ct., Misc. No.

103436 (June 8, 1983);5 and (2) use of Pigeon Lane to reach

properties owned by the plaintiffs and others in an abutting

subdivision to the north would constitute an overburdening of

that easement. We affirm.

Background. "We recite the facts drawn from the parties'

pleadings and the exhibits attached thereto" (quotation and

citation omitted). Mullins v. Corcoran, 488 Mass. 275, 276

(2021). Pigeon Lane is a private way in the city of Waltham

that serves three subdivisions: Woodland Park, approved in 1966;

DeVincent, approved in 1966; and Pigeon Hill Estates, approved

in 1980. Roughly, Pigeon Lane runs north and northwest from

Forest St., a public way; the Woodland Park subdivision runs

from north to south along the eastern side of Pigeon Lane; the

5 On appeal to this Court from the Land Court judge's June
8, 1983 decision, a panel issued a one-page order essentially
adopting the Land Court judge's reasoning and affirming the
judge's decision. See Corcoran v. Dellepigne, 18 Mass. App. Ct.
1113 (1984). We use the Mass. App. Ct. citation when
referencing the panel's decision; we use "Corcoran I," when
referring to the June 8, 1983 Land Court judge's decision, and
"Amelia," when referring to the Land Court judge's decision
dated September 22, 2023, presently before us.

2
DeVincent subdivision runs north to south along the western side

of Pigeon Lane. The Pigeon Hill Estates subdivision, the plan

for which was approved in 1980 and recorded in 1982, lies to the

north of the DeVincent subdivision and west of the Woodland Park

subdivision. In other words, to access the Pigeon Hill Estates

subdivision from the public way by Pigeon Lane, one would drive

past the homes in the DeVincent and Woodland Park subdivisions

that abut Pigeon Lane.

The defendants' residential lots, 10 Juniper Hill Road and

104 Pigeon Lane, are part of the Woodland Park subdivision and

the DeVincent subdivision, respectively. The plaintiffs' lots,

205 Pigeon Lane and 1 Lisa Lane are located in the Pigeon Hill

Estates subdivision.

Before development of the Pigeon Hill Estates subdivision,

the northwest end of Pigeon Lane was abutted by two parcels: the

land of Joseph and Maria Dellepigne6 (Dellepigne parcel), and a

parcel owned by Cambridge Council, Boy Scouts of America, Inc.

(BSA Parcel). The trustees of the Pigeon Hill Estates Trust

purchased the Dellepigne and BSA parcels and later filed the

Pigeon Hill Estates subdivision plan, showing fifty-seven lots

with access via Pigeon Lane. The plaintiffs' properties,

6 For consistency, we adopt the spelling of Dellepigne used
in prior related cases in this court and in the Land Court. We
note that the title documents in the record use "Delle Pigne.".

3
purchased from the Pigeon Hill Estates Trust, were once part of

the BSA parcel. The defendants' lots sit at the northern ends

of the DeVincent and Woodland Park subdivisions. All parties'

properties abut Pigeon Lane.

In the early 1980s, while the sale of the Dellepigne parcel

was pending, three property owners in the Woodland Park

subdivision and one property owner in the DeVincent subdivision

filed suit against the Dellepignes and one of the plaintiffs in

the present action (in his capacity as trustee of Pigeon Hill

Estates Trust), seeking a declaration of their own rights to use

Pigeon Lane and to enjoin Dellepigne and the trustee of Pigeon

Hill Estates trust from using Pigeon Lane to access their

properties. See Corcoran I, at 1.7 In Corcoran I, the Land

Court judge found that Pigeon Lane has existed since at least

1871 and appeared in the Waltham Atlas in 1911. Id. at 12, 15.

In 1966, when the Woodland Park and DeVincent subdivisions were

approved, however, Pigeon Lane was a narrow country lane "wide

enough at the very most for two cars to pass." Id. at 16.

The judge in Corcoran I concluded that the Dellepigne

property benefitted from an express easement by grant over

Pigeon Lane for the full length of the way. Id. at 10. The

judge also found that although the BSA parcel did not benefit

7 Page number references for Corcoran I are to the Land
Court's slip opinion.

4
from an express grant, it had acquired an easement by

prescription, based on prior use of Pigeon Lane by the Boy

Scouts to access camp sites in the summer, and year-round access

by a caretaker who lived on the BSA parcel until 1970. Id. at

12. The judge found that the historical use of Pigeon Lane was

"not a broad use," and was limited to "ingress and egress on

foot or by vehicle." Id. at 16. Thus, even though Pigeon Lane

had since been improved and widened where it abutted the

Woodland Park and DeVincent subdivisions, the judge concluded

that both the granted rights of the Dellepigne parcel and the

trustees' prescriptive easement rights in Pigeon Lane were

"limited to an area 20 feet in width through the Woodland Park

and DeVincent Subdivisions, located in the midsection of Pigeon

Lane." Id. at 17. Moreover, the court ruled "that the proposed

building of houses on 57 lots and use by their owners of the way

would overburden Pigeon Lane." Id. at 19.8

A panel of this court affirmed the judgment in Corcoran I,

holding that "[t]here is no merit to the argument of the

8Before the Land Court issued its decision in Corcoran I,
the defendants' predecessors in title, as owners of individual
lots in the Woodland Park Subdivision or the DeVincent
subdivision, granted to the trustees of Pigeon Hill Estates
Trust "the right in common with others, to use all the streets
and ways in" the Woodland Park Subdivision and the DeVincent
subdivision "for all purposes for which streets and ways are
commonly used in Waltham." These grants were not before the
judge in Corcoran I.

5
defendants that the judge was required to calibrate what manner

of use of Pigeon Lane by the defendants would be consistent with

their easement" -- that "the judge did sketch the general

outline" -- and "[t]he proposed loading onto the easement of

access to 57 residences manifestly overloads the light 'horse

cart' use and camp visiting use through which the easement was

acquired." Corcoran, 18 Mass. App. Ct. at 1113. The Supreme

Judicial Court denied further appellate review. See Corcoran v.

Dellepigne, 393 Mass. 1104 (1984).

In 1984, after the Corcoran decision, the trustees

purchased additional adjoining land to provide alternative

access to the proposed Pigeon Hill Estates subdivision, built

Forest Park Drive for that purpose, and ultimately constructed

seventy homes in the Pigeon Hill Estates subdivision. Beginning

in 1984, however, there was a concrete barrier on Pigeon Lane

between the Pigeon Hill Estates subdivision and the northern end

of the Woodland Park and DeVincent subdivisions, which the

Pigeon Hill Estates trust removed in 2002. Shortly thereafter,

the former owner of 10 Juniper Hill Road constructed the barrier

as it exists today, blocking access to the southern portions of

Pigeon Lane from Pigeon Hill Estates. The plaintiffs commenced

this action on March 11, 2022, seeking removal of the barrier.

On the plaintiff's motion for summary judgment and the

trustees of 104 Pigeon Lane Realty Trust's motion for judgment

6
on the pleadings, the judge noted that the plaintiffs, as owners

of former BSA property, had a prescriptive easement only, and

the conclusion that use of the easement to access the homes in

Pigeon Hill Estates would overburden Pigeon Lane "is as true

today as it was in 1983." The judge rejected the argument that

there had been a material change in circumstances and dismissed

the plaintiffs' nuisance claim.

Discussion. 1. Standard of Review. "A motion for

judgment on the pleadings under Mass. R. Civ. P. 12 (c) is

'actually a motion to dismiss . . . [that] argues that the

complaint fails to state a claim upon which relief can be

granted.'" Mullins, 488 Mass. at 281, quoting Jarosz v. Palmer,

436 Mass. 526, 529 (2002). "We review the allowance of a motion

for judgment on the pleadings de novo." Id. "In deciding the

motion, all facts pleaded by the nonmoving party must be

accepted as true. We also may rely on matters of public record,

orders, items appearing in the record of the case, and exhibits

attached to the complaint" (citations and quotation omitted).

Id.

2. The plaintiffs' easement rights. a. Prescriptive

easement. The plaintiffs claim that the barrier interferes with

their limited prescriptive easement rights in the southern

portion of Pigeon Lane. The defendants assert, as they did in

7
the Land Court, that under the doctrine of issue preclusion,

this claim has been resolved and may not be relitigated.

"The doctrine of issue preclusion provides that when an

issue has been 'actually litigated and determined by a valid and

final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent action

between the parties whether on the same or different claim.'"

Mullins, 488 Mass. at 281, quoting Jarosz, 436 Mass. at 530-531.

"[T]he issue in the prior adjudication" must be "identical to

the issue in the current adjudication." Tuper v. North Adams

Ambulance Serv., Inc., 428 Mass. 132, 134 (1998). "For

preclusive effect to flow from a prior judgment, the party

against whom preclusive effect is asserted must have been either

a party in the prior case or in privity with a party."

Cruickshank v. MAPFRE U.S.A., 94 Mass. App. Ct. 662, 665 (2019).

Here, as in Corcoran I, the dispute centered around the

northern parcels' right to use the southern portion of Pigeon

Lane through the Woodland Park and DeVincent subdivisions. The

plaintiffs here are in privity with the defendants in Corcoran

I, and the defendants here are seeking to bind the plaintiffs to

the earlier judgment. The defendants in Corcoran I claimed that

the proposed subdivision development would not overburden Pigeon

Lane, thus the overburdening determination was "essential to the

merits of the underlying case" and "had a bearing on the

8
outcome." Mullins, 488 Mass. at 282, quoting Jarosz, 436 Mass.

at 529, 533. Indeed, the Land Court judge in Corcoran I at 18-

19, entered a judgment declaring that because the defendants had

only limited rights in Pigeon Lane, "the proposed building of

houses on 57 lots and use by their owners of the way would

overburden Pigeon Lane."

Removing the barrier now would open the southern portion of

Pigeon Lane to use by the seventy homes in the Pigeon Hill

Estates subdivision. As the panel determined in Corcoran, 18

Mass. App. Ct. 1113, this change would overburden or overload

the limited prescriptive easement; it would be a "mutation" from

the prior seasonal camping use by the Boy Scouts, not a

progression "within the scope of normal development." Glenn v.

Poole, 12 Mass. App. Ct. 292, 295 (1981). See Lawless v.

Trumbull, 343 Mass. 561, 564 (1962) (where prior use of way was

relatively infrequent, a general right to vehicular travel would

overburden easement). See also Parks v. Bishop, 120 Mass. 340,

341 (1876) (when "the condition and character of the dominant

estate are substantially altered" -- such as when an undeveloped

area for camping is divided into many residential lots -- "the

right of way cannot be used for new purposes, required by the

altered condition of the property, and imposing a greater burden

upon the servient estate").

9
The plaintiffs maintain that they may relitigate the

overburdening or overloading issue because of a material change

in circumstances, namely the vehicular access over Forest Park

Drive -- the later-created road that allowed for construction

of, and access to, Pigeon Hills Estates. See Barry v. Planning

Board of Belchertown, 96 Mass. App. Ct. 314, 322 (2019) ("a

previously adjudicated issue is not 'identical' for purposes of

collateral estoppel[] where the facts material to the subsequent

litigation have changed since the prior adjudication"). We are

not persuaded.

The Land Court judge correctly concluded that a subsequent

purchase of land that provides an alternative means of access is

not a material change in circumstances. Contrast Barry, 96 Mass

App. Ct. at 322 (circumstances changed such that issue

preclusion did not apply where plans approved after litigation

changed land use). In Corcoran I at 13, the judge determined

that use of Pigeon Lane by the many landowners in the proposed

subdivision would overburden the limited easement. The addition

of a second road in and out (Forest Park Drive) does not require

revisiting this ruling and the judge properly applied collateral

estoppel.9

9 Because we affirm the allowance for judgment on the
pleadings, we do not address the plaintiffs' failure to add
indispensable parties.

10
b. 1983 express easements. The plaintiffs also assert that

the 1983 grants from the defendants' predecessors provide them

an easement separate and apart from their easement rights

recognized in Corcoran I and that because the grantors owned a

portion of the fee in Pigeon Lane, they were entitled to grant

those express easements..10 "[E]asements can be created only

'out of other land of the grantor, or reserved to the grantor

out of the land granted[,] never out of the land of a

stranger.'" Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285,

292 (2005), quoting Richards v. Attleborough Branch R.R. Co.,

153 Mass 120, 122 (1891).

There is no dispute that the defendants' predecessors

granted the plaintiffs' predecessors a right to use Pigeon Lane

in 1983, but the defendants' predecessors did not own the fee in

the entire length of the way and could not grant a broad right

to access the Pigeon Hill Estates subdivision via the southern

portion of Pigeon Lane. See Kitras, 64 Mass. App. Ct. at 292

("whatever the intent, one may not grant what one does not

own"). Though the grantors owned the portion of Pigeon Lane

abutting their property, they had no authority to grant an

easement over the rest of Pigeon Lane. See Southwick v.

10"Every instrument passing title to real estate abutting a
way, whether public or private . . . shall be construed to
include any fee interest of the grantor in such way." G. L.
c. 183, § 58.

11
Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319-320 (2005)

(where town's easement rights over private subdivision ways

derived from town’s ownership of lot in that subdivision, town

could not grant easement to another parcel because grant would

overload easement). This bright-line rule is intended to avoid

"difficult litigation over the question whether increased use

unreasonably increases the burden on the servient estate"

(quotation and citation omitted). Taylor v. Martha's Vineyard

Land Bank Comm'n, 475 Mass. 682, 686 (2016). We need not

determine the extent of the plaintiffs' rights in the small

section of the way adjacent to the grantor's properties that the

grantors did own because the Land Court judge correctly

determined that use of these rights would overburden the rest of

the way. See Boudreau v. Coleman, 29 Mass. App. Ct. 621, 634

(1990) (use of way by forty-one additional lots would overburden

the right). We discern no error.11

c. Nuisance. The plaintiffs had a limited easement over

Pigeon Lane and were aware that developing the property with

fifty-seven homes would overburden it. They chose to create

11 The plaintiffs also assert that the Land Court erred by
failing to balance the respective parties' rights rather than
extinguish the plaintiffs' easement. The Land Court's ruling
followed the earlier Corcoran rulings on the plaintiffs' ability
to exercise their limited easement rights and we affirm on that
ground. On this record, the plaintiffs have not proposed a low
intensity use of the easement.

12
seventy homes and for over forty years did not object to the

barriers blocking access to the southern portions of Pigeon

Lane. See Graziano v. Riley, 83 Mass. App. Ct. 280, 282-283

(2013) (where placement of berm across drainage easement was

wholly incompatible with plaintiff's use of easement for more

than twenty years, plaintiffs were barred from asserting any

rights to use drainage easement). We discern no error in the

judge's decision to dismiss the plaintiff's nuisance claim.

Judgment affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ.12),

Clerk

Entered: May 27, 2025.

12 The panelists are listed in order of seniority.

13