JOHN M. MURPHY & Another v. PATRICIA NICOLA RIBEIRO LEVITES & 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

23-P-1016

JOHN M. MURPHY & another1

vs.

PATRICIA NICOLA RIBEIRO LEVITES & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, John and Karen Murphy, brought this action

in the Superior Court against the defendants, Daniel and

Patricia Levites, asserting a claim for private nuisance and

seeking a declaratory judgment regarding an easement on the

Levites' property that allows the Murphys to access a saltwater

pond. Following trial, the jury returned a verdict in favor of

the Murphys on their nuisance claim and awarded damages, and the

judge issued a decision and order declaring that they have the

right to maintain the easement for passage. On appeal, the

1 Karen A. Murphy.

2 Daniel Rozenfeld Levites.
Levites argue that (1) the Murphys do not have an ownership

interest in the easement that allows them to bring an action for

private nuisance, and (2) the jury instructions and verdict slip

were erroneous. We affirm the judgment and award the Murphys

appellate attorney's fees and costs.

Background. The jury could have found the following facts.

A developer subdivided a property in West Dennis to create 52

Loring Avenue, a property that lies along the road, and 54

Loring Avenue, an abutting property with frontage on Kelley's

Pond. When the Murphys purchased 52 Loring Avenue in 2016, the

conveyance deed stated that the owners had a perpetual easement

that benefitted them, "their heirs, successors and assigns, to

pass and repass, by foot only over an eight (8) foot wide path,

located on the northeasterly boundary of the property located at

54 Loring Avenue." The Murphys used the easement to access the

pond without incident until May 2020, when the Levites purchased

54 Loring Avenue.

The Levites were aware of the easement when they purchased

the property. Before they closed on it, they objected to the

Murphys spreading stone dust along the easement path, and the

Murphys agreed to remove it. In June 2020, Karen Murphy and two

of her children were relaxing by the pond when Patricia Levites

accused them of trespassing, told them to leave, and began to

videotape them. Patricia told Karen that "she would give [her]

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no peace with [her] family and she would spend millions to do

so." Following this incident, John and Daniel agreed that the

Murphys would not use the easement for two weeks so that the

Levites could "figure things out."

Two weeks later, the Murphys used the easement to access

the pond, and Patricia responded by tying yellow caution tape

across the path. Many similar incidents followed. The Levites

constructed a wire fence on the easement, took pictures of the

Murphys in their bathing suits, objected to efforts to maintain

the easement, installed signs stating the area was under "24-

hour surveillance," placed a video camera and alarm in a tree on

the easement, and planted new trees on it. In May 2021,

Patricia called the police in an attempt to get one of the

Murphys' daughters and her friends arrested for using the

easement.

The Murphys filed suit, claiming that the Levites'

obstruction of the easement constituted a private nuisance and

seeking declaratory and injunctive relief and damages. After a

four-day trial in August 2022, a jury returned a verdict finding

the Levites liable for creating a private nuisance and awarding

the Murphys $60,000 in damages. In September 2022, the judge

issued a decision and order on the Murphys' claim for

declaratory judgment, declaring that the Murphys have a right to

reasonably maintain the easement and that as many as eight of

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the Murphys' family members, guests, and lessees may use the

easement at a time.

Discussion. 1. Motion for directed verdict. The Levites

argue that the judge erred in denying their motion for a

directed verdict because the Murphys do not have a possessory

interest in the easement that allows them to bring a claim for

nuisance. That argument is without merit. "To bring a nuisance

action, the plaintiff must have an interest in land, but this

can be less than a fee simple absolute [footnote omitted]."

9 M.A. Wolf, Powell on Real Property § 64.02[5] (2024). An

easement is "a sufficient property interest to support a

nuisance claim [footnote omitted]." Id. See Restatement

(Second) of Torts § 821E (1979) ("For a private nuisance there

is liability only to those who have property rights and

privileges in respect to the use and enjoyment of the land

affected, including . . . owners of easements"). In Connerty v.

Metropolitan Dist. Comm'n, 398 Mass. 140, 147 (1986), the

Supreme Judicial Court observed that, because plaintiffs with

"some interest in the property affected" may bring private

nuisance actions, "holders of easements . . . have been

permitted to recover in nuisance actions."

Notwithstanding this authority, the Levites argue that an

easement holder cannot bring an action for private nuisance in

response to a servient estate owner's obstruction of the

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easement because "only one parcel of land" is involved. They

rely primarily on Doe v. New Bedford Hous. Auth., 417 Mass. 273,

288 (1994), which held that tenants cannot sue their landlord

for nuisance because "two different parcels of property" are

required: "one on which the nuisance condition exists, and

another whose occupants are burdened by the nuisance." Assuming

without deciding that the holding in Doe applies in this

context, its requirement is satisfied. The Murphys and Levites

reside on distinct parcels of land, and the Murphys benefit from

the easement over the Levites' property because it allows them

to access Kelley's Pond from their property. The judge did not

err in denying the Levites' motion for a directed verdict.

2. Jury instructions and verdict slip. Although the

Levites argue that the judge erred in instructing the jury that

this case involved two parcels of land, they did not object to

this instruction after it was given. "As provided by the

Massachusetts Rules of Civil Procedure, 'no party may assign as

error the giving or failure to give an instruction unless [the

party] objects thereto before the jury retires to consider

[their] verdict, stating distinctly the matter to which [the

party] objects and the grounds of [the] objection.'" Rotkiewicz

v. Sadowsky, 431 Mass. 748, 750-751 (2000), quoting Mass.

R. Civ. P. 51 (b), 365 Mass. 816 (1974). Because the "primary

purpose of the rule is to put the judge on notice of the issue,"

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a party objecting to an instruction must "clearly bring the

objection and the grounds for it to the attention of the judge."

Rotkiewicz, supra at 751. By failing to object to the

instruction at trial, the Levites waived their right to claim

error on appeal. See Greene v. Philip Morris USA Inc., 491

Mass. 866, 877-878 (2023); Boston Edison Co. v. Massachusetts

Water Resources Auth., 459 Mass. 724, 740 (2011).

The Levites also argue that the verdict slip was erroneous

because it presumed that a nuisance had occurred and did not

direct the jury to decide whether any nuisance was substantial

or unreasonable. Again, by not objecting to the verdict slip at

trial, the Levites waived their right to challenge it on appeal.

See Motsis v. Ming's Supermarket, Inc., 96 Mass. App. Ct. 371,

383 (2019) ("Any objection to the form of a verdict slip must be

timely raised").

3. Appellate attorney's fees. Asserting that this appeal

is frivolous, the Murphys have requested an award of their

appellate attorney's fees and costs. We agree and grant the

Murphys' request. See Marion v. Massachusetts Hous. Fin.

Agency, 68 Mass. App. Ct. 208, 212 (2007). The existence of the

easement over the Levites' property is undisputed on appeal,

and, as discussed supra, the right of an easement holder to

bring a nuisance action against a servient estate owner who

obstructs it is not subject to reasonable dispute. Furthermore,

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the Levites' threat to "spend millions" to deprive the Murphys

of their peaceful enjoyment of the easement and access to

Kelley's Pond is indicative of bad faith. Consistent with the

procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004),

the Murphys may submit an application for their reasonably

incurred attorney's fees and costs of appeal, with supporting

documentation, to this court within fourteen days of the date of

issuance of this decision. The Levites shall have fourteen days

thereafter to respond.

Amended judgment affirmed.

By the Court (Sacks,
Ditkoff & Toone, JJ.3),

Clerk

Entered: September 24, 2024.

3 The panelists are listed in order of seniority.

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