JACKSON v. BARNEY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises from a dispute regarding the plaintiff's access to an easement along the side of the defendants' property next door. Following a trial in the Land Court, the judge enjoined the defendants from obstructing a portion of the easement and found that the plaintiff had abandoned another portion. The plaintiff appeals from the aspect of the judgment declaring she had abandoned part of the easement. We affirm.

The judge, who as the trier of fact heard testimony, reviewed the exhibits, and took a view, found the following facts, based on his “assessment of the credibility, weight, and inferences to be drawn from that evidence.” The plaintiff, Sandra J. Jackson, resides at 1074 Adams Street in Dorchester. Her neighbors, defendants Adam W. and Paula J. Barney, reside next door at 1076 Adams Street. In 1947, the then common owner of both properties created a ten-foot wide easement prior to selling 1076 Adams Street. The easement allowed a right of way to the owner of 1074 Adams Street stretching from the road to the back of the property. The deeds for both properties have referenced the easement since its creation.

At present, Jackson's backyard is completely paved, and the easement is paved up to the edge of a fence, providing Jackson with access to her garage and parking area. Just a few feet beyond the fence stands a tall, “decades old” tree. The tree completely obstructs the section of the easement beyond the fence. The judge found that the tree and the fence existed before Jackson came to reside at her property. When the Barneys moved into 1076 Adams Street in 2015 they believed that they were allowed to park their vehicles in tandem on the paved section of the easement, which obstructed Jackson's access to her garage and parking area. Jackson asked the Barneys to stop parking vehicles on the easement, but they refused.

As a result of this disagreement, Jackson filed a complaint in the Land Court. She sought a permanent injunction providing her with full, unobstructed use of the entire easement; removal of the fence and tree; and monetary damages. The Barneys opposed Jackson's complaint and contended that they could park their vehicles in tandem on the easement while still allowing her access to her backyard and garage.

The judge recognized Jackson's right to the express easement stretching from the road to the fence. Jackson's house and garage have been in their current locations since 1933, prior to the creation of the easement. The judge found that the clear purpose of the easement was to allow Jackson access to her garage. The judge therefore enjoined the Barneys from placing any objects or obstructions on the portion of the easement up to the fence. The judge specifically barred the Barneys from parking or stopping on the easement for any reason other than brief pick-ups or drop-offs. Contrary to Jackson's assertions, however, the judge found that she and her predecessors had abandoned the easement area behind the fence and that Jackson lacked the right to use that area for any purpose.

On appeal, Jackson contends that the judge's findings concerning the length of time that the tree and fence blocked access to the back portion of the easement were wrong. She argues that the tree and fence were not in place when she purchased her home, but were placed on the property in 2006. To prevail on her claim, Jackson has the burden to show that the judge's factual findings were clearly erroneous. See Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). We are unable to address the merits of Jackson's claim because she has failed to present a sufficient record on appeal to support it. Specifically, she did not provide a transcript of the trial.

“It is the obligation of the appellants to include in the appendix those parts of the ․ trial transcripts ․ which are essential for review of the issues raised on appeal (both to determine whether the evidence supports the theory on appeal and whether the issue was properly presented and preserved).” Shawmut Community Bank, Nat'l Ass'n v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). See Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1612 (2019); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). See also Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018).

“We uphold the findings of a judge who saw and heard the witnesses unless we are of the definite and firm conviction that a mistake has been made” (quotation and citation omitted). Martin, 467 Mass. at 8. Here, Jackson has “failed to provide us with the transcript, and there is no record support for [her] argument.” Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004). If Jackson presented evidence to support her contentions concerning the erection of the fence and the planting of the tree, the judge clearly did not find it credible. “The credibility of witnesses is for the trial judge to determine and any such determination will not be set aside unless clearly erroneous.” George v. Quincey Coop. Bank, 5 Mass. App. Ct. 771, 771 (1977). Without the transcript of the trial, we have no basis whatsoever to conclude that the judge's factual findings were clearly erroneous.

Judgment affirmed.