Opinion
No. 12–P–1177.
2013-06-28
Paul J. DeNADAL & another v. Philip N. BEAUREGARD & another.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Beauregards and the DeNadals are neighbors in a Westport subdivision, with a forty-foot private way separating their lots. Pursuant to the derelict fee statute, G.L. c. 183, § 58, the parties own the underlying fee, to the center line, of the portion of the private way that abuts their respective lots. The dispute between the parties continued even after a decision in the prior case. See Harrison–Beauregard vs. DeNadal, Land Ct. No. 316714 (Oct. 3, 2006), which was affirmed on appeal, 71 Mass.App.Ct. 1107 (2008). The present action began with a suit by the DeNadals to enjoin the Beauregards from driving on the DeNadals' portion of the way. The sole surviving issue is the Beauregards' counterclaim, in which they argued that the placement of objects or barriers on the DeNadals' portion of the way obstructed the Beauregards' right to use the entire width of the private way. The judge found in favor of the DeNadals, and the Beauregards appeal. Discussion. 1. Res judicata. The first issue is whether res judicata
bars the Beauregards' counterclaim and, by extension, this appeal. The judge so determined in his order on the Beauregards' motion for reconsideration. We conclude that the DeNadals waived this defense for failure to plead it.
“ ‘Res judicata’ is the generic term for various doctrines by which a judgment in one action has a binding effect in another.” Heacock v. Heacock, 402 Mass. 21, 23 n. 2 (1988). It comprises both “claim preclusion” (traditionally known as “merger” or “bar”) and “issue preclusion” (traditionally known as “collateral estoppel”). Ibid.
Claim preclusion and issue preclusion are affirmative defenses, and as such, they must be asserted in the original pleadings. See Mass.R.Civ.P. 8(c), 365 Mass. 749 (1974); Methuen Retirement Bd. v. Contributory Retirement Appeal Bd., 384 Mass. 797, 797–798 (1981). Because the DeNadals did not plead these defenses, they waived the right to assert them. See Middlesex & Boston St. Ry. Co. v. Aldermen of Newton, 371 Mass. 849, 859 (1977) (“The failure to comply with [rule 8(c) ] is, without more, sufficient reason for holding that the defenses ... are not now open to the defendants”). The DeNadals argue that they could not have asserted these defenses because the prior case was still pending on appeal during the pleading stage of the within action. That argument is unconvincing. Even after the appellate decision issued in the prior case, the DeNadals did not attempt to amend their answer or raise res judicata by motion within a reasonable time. We see no compelling reason to depart from the general rule that failure to raise a defense at the earliest possible time constitutes a waiver of that defense. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991).
Even if the defenses were not waived, neither claim preclusion nor issue preclusion supports dismissing this action. The only live factor for issue preclusion is whether “the issue in the prior adjudication was identical to the issue in the current adjudication.” Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).
It was not. In the prior suit, the Beauregards sought the right to park in the DeNadals' portion of the easement; in this case, the Beauregards seek to enjoin the DeNadals from placing barriers that interfered with the Beauregards' ability to access the entire width of the way. It may seem as though the Beauregards are casting the same argument in a different light, but placing barriers in an easement and parking cars in an easement are discrete matters under Massachusetts law. Compare Beaudoin v. Sinodinos, 313 Mass. 511, 517–519 (1943), with Brassard v. Flynn, 352 Mass. 185, 189 (1967). Accordingly, issue preclusion does not apply.
The other two factors—a final judgment on the merits and identity of the parties, see Tuper, supra—clearly are met in this case.
“The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action ” (emphasis supplied). Heacock v. Heacock, 402 Mass. 21, 23 (1988). In the prior action, the Beauregards filed an emergency motion after the trial to enjoin the DeNadals from placing barriers in the way, and so the judgment included a declaration that the DeNadals could place barriers to prevent unlawful parking by the Beauregards. But the timing of this motion (after the trial, but before the judgment) belies the application of claim preclusion. Clearly, the Beauregards could neither have litigated the obstruction of the way by barriers at the prior trial, nor even foreseen this becoming a dispute. See id. at 23–25.
Claim preclusion is therefore inapplicable.
Additionally, as discussed supra, the underlying merits of the two actions consider two distinct matters in our case law.
2. The right of way. It is undisputed that the Beauregards have a right to pass over the private way. The only question is whether they may pass over the full width of the way, or whether they are confined to a convenient right of ingress and egress. Compare Johnson v. Kinnicutt, 2 Cush. 153, 157–158 (1848), with Beaudoin v. Sinodinos, supra. The DeNadals contend that the Beauregards have only a convenient right of ingress and egress.
The DeNadals rely on cases such as Guillet v. Livernois, 297 Mass. 337 (1937), and Tehan v. Security Natl. Bank of Springfield, 340 Mass. 176 (1959). Those cases are inapposite, as they concern the manner in which an easement can be used, not the physical width of the easement. See Guillet, supra at 340; Tehan, supra at 182
The Beauregards' deed reserves to them the “right to pass over Pettey Lane to and from the above-described premises and the forty (40) foot and thirty (30) foot private ways from Pettey Lane to the above-described premises.”
Contrary to the DeNadals' argument, neither the width nor the location of the easement are ambiguous. The width is clearly forty feet. As for the location, the parties agree that the center of the private way is the property line that separates the DeNadals' underlying fee from the Beauregards' underlying fee. They also agree that the outer boundaries of the way extend twenty feet onto each parties' underlying fee. Because both the Beauregards' deed and DeNadals' deed provide a metes and bounds description of their respective lots and also reserve access to the forty-foot way, the location of the easement could not be clearer. Where the dimensions of the easement are free from ambiguity, the easement holder has the right to pass over the entire width of that easement. Cf. Panikowski v. Giroux, 272 Mass. 580, 582 (1930). Therefore, the Beauregards' right to pass over the forty-foot way includes the right to pass over the entire width of the way. See Beaudoin v. Sinodinos, supra. It follows that the DeNadals cannot obstruct the passage of the way by placing impediments within the boundaries of the private way.
This dispute does not concern the thirty-foot way.
That the parties own the underlying fee to the way's center line is of limited relevance. Ownership of the underlying fee grants only very limited additional rights in that portion of the way. For example, the owner of the underlying fee is allowed to temporarily park his vehicles on that portion, but not such that it would interfere with the right of ingress and egress of the way. See Brassard v. Flynn, 352 Mass. at 189. Whatever additional rights are granted to the owner of the underlying fee cannot, however, interfere with the deeded right to pass over the way. See Martin v. Simmons Properties, LLC, 82 Mass.App.Ct. 403, 409–410, further appellate review granted, 463 Mass. 1110 (2012).
Yet the DeNadals contend that because the objects they have placed in the way are de minimis and not permanent, they have not interfered with the Beauregards' right to access the entire width of the way. The testimony at trial, however, does not support that conclusion. Mr. DeNadal testified that many of the objects placed in the DeNadals' portion of the easement require two people to move. What is more, the DeNadals insist that only they have the right to remove (or move) these objects. Such use “constitutes an interference with the use of the easement owned by the [Beauregards] and at least it has such an appearance of permanency as to create a risk of doubt as to the continuance of the easement.” Delconte v.. Salloum, 336 Mass. 184, 189 (1957). Because the placement of barriers on the DeNadals' side of the easement is inconsistent with the Beauregards' right to access the entire width, the DeNadals must keep their portion of the way clear of barriers and impediments.
Conclusion. The judgment is modified to prohibit the parties from putting “objects or barriers” in their ten-foot portion of the forty-foot way. As so modified, the judgment is affirmed.
Our conclusion today does not affect the outcome of the prior case. See Harrison–Beauregard v. DeNadal, supra. The parties still may park their cars within the ten-foot portion of the way that abuts their property. And they still are prohibited from parking on their neighbors' ten-foot portion of the way. See note 8, supra.
As to the request for costs by the DeNadals, see Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979).
So ordered.