JOHN A. DROMSKY & Another v. JOHN T. MANDEVILLE & Another.

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-430

JOHN A. DROMSKY & another1

vs.

JOHN T. MANDEVILLE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case concerns a dispute over the width of a right of

way. The plaintiffs, John A. Dromsky and Jane T. Dromsky, live

on a private, paved lane referred to as Hillcrest Acres Lane

(lane). The defendants, John T. Mandeville and Douglas Scott

Lester, also live on the lane. After the defendants restored a

stone wall in front of their house, in the area to the side of

the lane, the plaintiffs brought this action alleging that (1)

the paved lane, which was approximately ten feet wide, followed

the path of a forty-foot wide right of way over which the

plaintiffs had easement rights and (2) the defendants

constructed their stone wall in the forty-foot right of way,

thereby interfering with the plaintiffs' use and enjoyment of

1 Jane T. Dromsky.
2 Douglas Scott Lester.
it. Following cross motions for summary judgment, an amended

judgement entered declaring that the plaintiffs have only a

prescriptive easement for vehicular and pedestrian passage over

the paved lane. The plaintiffs appeal. We conclude that the

plaintiffs have an express easement over the paved lane, and we

direct that the amended judgment be modified to reflect that.

See G. L. c. 221A, § 5; G. L. c. 231, §§ 115, 125. Otherwise,

we affirm.

1. Notice of appeal. Before turning to the merits, we

address whether the plaintiffs' notice of appeal was timely.

The issue with respect to the timeliness of the plaintiffs'

notice of appeal arises from the fact that the plaintiffs and

the defendants served motions for reconsideration within ten

days of entry of the original February 16, 2021, judgment. On

March 9, 2021, the defendants filed their motion, which asked

that the declaratory judgment be amended "to remove [an]

ambiguity caused by the language and punctuation." On March 19,

2021, the defendants' motion was allowed, and the amended

judgment entered, making a minor wording change to the

declaratory judgment. On March 22, 2021, the plaintiffs filed

their motion, which reargued the merits of the case.3 The

3 The plaintiffs were required to file their motion for
reconsideration "either before service or within a reasonable
time thereafter." Mass. R. Civ. P. 5 (d) (1), as amended, 404
Mass. 1401 (1989). The defendants do not argue that the
2
plaintiffs' motion was denied months later, on October 1, 2021.

Within thirty days of entry of the order denying the plaintiffs'

motion, they filed their notice of appeal. The defendants argue

that plaintiffs' motion tolled the time for appealing from the

original judgment but not the amended judgment, and that the

plaintiffs therefore had to file their notice of appeal within

thirty days of entry of the amended judgment. We disagree.

The Massachusetts Rules of Appellate Procedure provide that

"unless otherwise provided by statute, the notice of appeal

. . . shall be filed with the clerk of the lower court within 30

days of the date of the entry of the judgment, decree,

appealable order, or adjudication appealed from." Mass. R. A.

P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). However,

the appeal period is tolled if any party makes or serves, in a

timely manner, a motion listed in rule 4 (a) (2), and a new

appeal period commences on the entry of the order disposing of

the last such motion. See Mass. R. A. P. 4 (a) (2); Youghal,

LLC v. Entwistle, 484 Mass. 1019, 1020-1021 (2020). One type of

motion that tolls the appeal period is a motion to alter or

plaintiffs did not file their motion within a reasonable time.
Moreover, given the circumstances, we think the plaintiffs did
file their motion within a reasonable time. In particular, it
appears that the plaintiffs waited until the court clarified the
ambiguity with the wording of the declaratory judgment and then
filed their motion, which went to the merits, three days after
the amended judgment entered.
3
amend the judgment, however titled, but only if the "motion is

served within 10 days after entry of judgment." Mass. R. A. P.

4 (a) (2) (C).

Here, it is undisputed that the plaintiffs' motion tolled

the time for appealing from the original judgment. See Mass. R.

A. P. 4 (a) (2) (C). The only question is whether the

plaintiffs' motion also tolled the time for appealing from the

amended judgment. We conclude that it did where a contrary

conclusion would improperly "elevate form over substance."

Matter of the Estate of Rosen, 86 Mass. App. Ct. 793, 802

(2014). In particular, the defendants received timely notice

that the plaintiffs were seeking substantive reconsideration of

the declaratory judgment, regardless of its precise phrasing,

and the arguments raised in the plaintiffs' motion applied

equally to the original judgment and the amended judgment. As

the defendants acknowledged at oral argument, there would be no

dispute that the plaintiffs' motion tolled the time for

appealing from the amended judgment had the plaintiffs served it

again but altered the title to reflect that they were seeking

reconsideration of the amended judgment. Accordingly, we are

satisfied that the plaintiffs' motion tolled the time for

appealing from both the original judgment and the amended

judgment. See Youghal, LLC, 484 Mass. at 1020-2021 (rule 59

motion served before entry of judgment still tolls appeal

4
period). The defendants' motion to dismiss the appeal is

denied.

2. Right of way. The plaintiffs rely on a 1954 deed from

Lillian Lamb to Leon Sequeira to establish their right to use

the full forty-foot way. The 1954 deed conveyed land

"[c]ommencing at a point approximately 137 feet in a westerly

direction from the west side of Horseneck Road and in the

northerly line of a 40 ft. right of way." The deed also stated,

"The grantee shall have a right of way along the aforementioned

40 ft. right of way from Horseneck Road to the westerly boundary

of the granted premises." The plaintiffs, who trace their chain

of title back to the 1954 deed, argue that this language created

a forty-foot wide right of way.4 We agree that the language

created a right of way, but not that the language created a

forty-foot wide right of way.

The 1954 deed referenced two rights of way: a new right of

way along a supposedly preexisting forty-foot wide right of way.

While the 1954 deed created the new right of way, it did not

create the forty-foot wide right of way, and the plaintiffs did

not offer evidence in the Superior Court showing that the forty-

4 The plaintiffs also point to a 1952 plot plan that Lamb filed
with the registry of deeds showing undeveloped and undivided
land with a forty-foot wide "private drive" running through it.
However, the plaintiffs have not explained how this plot plan,
which was not referenced in the subsequent 1954 deed, conveyed
any rights to the private drive.
5
foot wide right of way was validly created. Where the 1954 deed

created a right of way of undefined width, the right of way was

limited to a "convenient width that would be reasonable for the

purposes at the time of the grant."5 M. Pill, Real Estate Law

§ 8:39 (2022-2023 ed. 2022). See George v. Cox, 114 Mass. 382,

387 (1874). On this point, the undisputed summary judgment

evidence showed that the paved lane had provided decades of

convenient ingress and egress to and from the residential

properties along the lane, and that the new right of way created

by the 1954 deed was therefore limited to the width of the paved

lane. The judge did not err, then, in granting the plaintiffs

an interest only in that area.6

Separately, we note that the plaintiffs cite Casella v.

Sneirson, 325 Mass. 85 (1949), in support of their argument that

5 In contrast, "[w]here the language of an easement requires that
a way of a defined width be kept open, or that the full extent
of the width described be usable, we have prohibited any
encroachment into the way." Martin v. Simmons Props., LLC, 467
Mass. 1, 15-16 (2014). That was not the case here.
6 On appeal, the plaintiffs have submitted a typed transcription

of a handwritten deed, from Patrick Cummings to Elizabeth A.
Bowers and Josiah A. Bowers, that conveyed "a right of way . . .
through my land . . . provided the grantees herein mentioned
follow[] the laneway now used by the grantor." The plaintiffs
argue that this deed created the forty-foot wide right of way.
Even if we were to consider the deed, which was not submitted in
the Superior Court and is not part of the record, it would not
alter our analysis, as it does not specify that the right of way
was forty feet wide. See Mass. R. A. P. 8 (a), as appearing in
481 Mass. 1611 (2019) ("record on appeal shall consist of the
documents and exhibits on file").
6
they have an easement over an unobstructed, forty-foot wide

right of way. The language in Casella on which the plaintiffs

rely pertains to easements by estoppel, but the plaintiffs do

not otherwise elaborate on the point or explain how, by virtue

of an easement by estoppel, they have an easement over an

unobstructed forty-foot right of way. See id. at 90 ("When a

grantor conveys land, bounding it on a way or street, he and his

heirs are estopped to deny that there is such a street or way"

[quotation and citation omitted]). Accordingly, we decline to

address the argument further.

3. Attorney's fees. In the Superior Court, the motion

judge awarded the defendants attorney's fees incurred in

responding to the plaintiffs' motion for reconsideration.7 The

motion judge noted that the plaintiffs continued "to repeatedly

rehash the same arguments ad nauseam." The plaintiffs argue

that their motion was meritorious, and that the decision to

7 The defendants argue that, regardless of whether the
plaintiffs' entire appeal is properly before the court, the
plaintiffs' challenge to the award of attorney's fees is not.
The defendants argue that while the plaintiffs' notice of appeal
included the order denying the plaintiffs' motion for
reconsideration, the notice of appeal did not specify that the
plaintiffs were appealing from so much of that order as awarded
attorney's fees, or that the plaintiffs were appealing from the
subsequent order that specified the amount of attorney's fees
being awarded. This argument is meritless. The plaintiffs
appealed from the entire order denying their motion for
reconsideration, which included the award of attorney's fees.
7
award attorney's fees was therefore an abuse of discretion.8 We

review an award of attorney's fees for an abuse of discretion.

See Wong v. Luu, 472 Mass. 208, 220 (2015). Here, we discern

none, where the plaintiffs' motion merely repeated arguments

that the motion judge had already rejected.

4. Conclusion. The words "a prescriptive easement,"

appearing in part (iii) (a) of the amended judgment, are

modified to read "an express easement." As modified, the

amended judgment is affirmed. The order denying the plaintiffs'

motion for reconsideration is also affirmed.

So ordered.

By the Court (Sacks, Singh &
Brennan, JJ.9),

Clerk

Entered: March 8, 2023.

8 Separately, the defendants request attorney's fees and double
costs incurred in defending this appeal. That request is
denied. While the plaintiffs have not prevailed on the main
issue of the width of the right of way, their appeal was not
frivolous.
9 The panelists are listed in order of seniority.

8