HAGGERTY v. CONNELL (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Two of the defendants, James F. Connell and Linda Connell (defendant-appellants), appeal from orders of a Superior Court judge denying their motion for a preliminary injunction and granting the plaintiffs’ cross motion for a preliminary injunction. We affirm.

Discussion. “We review the grant or denial of a preliminary injunction for abuse of discretion.” Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 574 (2012). In doing so, we look to “the same factors properly considered by the judge in the first instance.” Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616 (1980).

A party moving for a preliminary injunction must show (1) a likelihood of success on the merits; (2) that a substantial risk of irreparable harm will result from denial of the injunction; and (3) that, in light of the moving party's likelihood of success on the merits, the risk of irreparable harm to the moving party outweighs the potential harm to the nonmoving party if the injunction is granted. See Foster v. Commissioner of Correction, 488 Mass. 643, 650 (2021). “A preliminary injunction ordinarily is issued to preserve the status quo pending the outcome of litigation.” Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011).

The defendant-appellants argue that the judge erred in both denying their motion for a preliminary injunction, and by granting the plaintiff's cross motion for a preliminary injunction. For the following reasons, the defendant-appellants have failed to show that the judge applied an incorrect legal standard, made factual findings lacking reasonable support, or otherwise erred in issuing the injunction. See Packaging Indus. Group, Inc., 380 Mass. at 615.

1. Likelihood of success on the merits. The judge found “that the [p]laintiffs are likely to succeed on the merits given their preliminary showing of a legitimate right to access a right-of-way across a portion of the [defendants’] property documented in the [d]eed documents submitted -- a right that [the] [p]laintiffs claim to have exercised ․ for over twenty years.” The defendant-appellants argue that the right of way does not benefit the plaintiffs’ property, and because of this, they are likely to succeed on their claims, and the plaintiffs will fail on theirs. However, our review is limited to whether the judge abused his discretion in granting the plaintiffs’ motion for a preliminary injunction. See Eaton, 462 Mass. at 574. Because the chain of title for the defendants’ property identifies that a right of way exists on such property, and the chain of title for the plaintiffs’ property identifies an interest in a right of way, it was not unreasonable for the judge to find that the plaintiffs made a preliminary showing that they had the right to use the defendants’ driveway to access their property.³ See Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 674 (2019), quoting Patterson v. Paul, 448 Mass. 658, 665 (2007) (“Where an easement is created by deed, its meaning, ‘derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances’ ”).

Additionally, there is some evidence that the plaintiffs have a prescriptive easement. “[A] claimant may be entitled to a prescriptive easement respecting the land of another if it is shown [that] ․ use of the land ․ has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). The plaintiffs submitted affidavits stating that they have used the right of way consistently for over twenty years, as well as affidavits from several neighbors as to use of the right of way, which the judge acknowledged.

At this stage of the litigation, the judge had to determine whether the plaintiffs had a likelihood of success; he did not need to make factual findings and conclusions on each issue. See Foster, 488 Mass. at 650. Given the evidence provided, it was reasonable for the judge to conclude that the plaintiffs made a preliminary showing of a legitimate right to access the right of way across the defendants’ property. Therefore, it was not an abuse of discretion for the judge to find that the plaintiffs were likely to succeed on the merits of their claim. See Packaging Indus. Group, Inc., 380 Mass. at 615.

2. Risk of irreparable harm. The judge found “that the [p]laintiffs’ claims concerning repeated obstructions of their use of the driveway in question ha[d] caused substantial disruption to their lives and that continued interference with their use of the right-of-way will cause the [p]laintiffs irreparable harm absent the requested relief.” In the plaintiffs’ submitted affidavits they described that the defendants have “repeatedly blocked [their] access to and from [their] home, by leaving a parked vehicle in the [r]ight of [w]ay.” Parking cars in the right of way so as to interfere with its use could constitute continuing trespass. See Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co., 89 Mass. App. Ct. 594, 602-603 (2016). When confronted with a continuing trespass, the correct remedy is enjoining the action rather than awarding monetary damages. See Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235, 247 (2021). Therefore, it was not an abuse of discretion for the judge to find that the plaintiffs demonstrated a risk of irreparable harm.

3. Balancing the risks of harm. The judge found that the “risk of irreparable harm to the [p]laintiffs outweighs any potential harm to the [d]efendants.” The defendant-appellants argue that they have suffered irreparable harm from the plaintiffs’ “wrongful entry” onto the defendants’ property and because of damage caused to the property by the plaintiffs’ “repeated driving and snowplow use.” However, one of the purposes of a preliminary injunction is to “preserve the status quo.” See Doe, 461 Mass. at 164. The plaintiffs claim that they have used this right of way for over twenty years, and continued use is necessary to access their property; thus, issuing a preliminary injunction enjoining the defendants from blocking the right of way maintains the “status quo” while this litigation continues. See id. See also Packaging Indus. Group, Inc., 380 Mass. at 616 (“judge should seek to minimize the ‘harm that final relief cannot redress,’ by creating or preserving ․ a state of affairs such that after the full trial, a meaningful decision may be rendered for either party” [citation omitted]).

Conclusion. The judge, on the record before him, could have found that the plaintiffs demonstrated sufficient risk of irreparable harm to warrant injunctive relief, and their risk of harm outweighed that of the defendants. See Packaging Indus. Group, Inc., 380 Mass. at 617. Therefore, the orders allowing the plaintiffs’ motion for a preliminary injunction and denying the defendants’ motion for a preliminary injunction are affirmed.

So ordered.

FOOTNOTES

3.   “[W]hile weight will be accorded to the exercise of discretion by the judge below, if the order was predicated solely on documentary evidence we may draw our own conclusions from the record.” Packaging Indus. Group, Inc., 380 Mass. at 616.