412 SOUTH BROADWAY REALTY, LLC & a.
JOHN M. WOLTERS, JR. & a.
Argued: June 14, 2016
Wadleigh, Starr & Peters, P.L.L.C., of Manchester
(Michael J. Tierney on the brief and orally), for 392 South
Cleveland, Waters and Bass, P.A., of Concord (David W.
Rayment and Mark S. Derby on the brief, and Mr. Rayment
orally), for John M. Wolters, Jr. and Steven M. Lospennato.
Johnson & Borenstein, LLC, of Andover, Massachusetts
(Mark B. Johnson and Kathleen M. Heyer on the brief, and Mr.
Johnson orally), for Emmett Horgan, Trustee of the FUN Trust.
South Broadway Realty, LLC and Salem Rockingham, LLC filed no
John M. Wolters, Jr. and Steven M. Lospennato (hereinafter
"defendants") appeal multiple orders of the
Superior Court (Wageling, J.) ruling that their
property was not benefited by a deeded right-of-way over
several other properties and finding them liable for abuse of
process. The third-party defendant, Emmett Horgan, Trustee of
the FUN Trust (FUN Trust), cross-appeals, arguing that the
trial court erred in finding that the defendants had not
committed slander of title and in calculating the damages
award for the trust's abuse of process claim. We affirm
in part, vacate in part, and remand.
trial court found, or the record supports, the following
facts. This case involves the defendants' alleged
entitlement to travel across several properties in Salem in
order to access Route 28. The defendants own the property
located at 16 Garabedian Drive, and claim to have a deeded
right-of-way to travel from their property eastward, across
State-owned railroad tracks and continuing across the
southernmost section of two parcels of land owned by
Cumberland Farms, Inc. and 392 South Broadway, LLC
respectively. The Cumberland Farms property abuts the
railroad on its western boundary and 392 South Broadway's
property to the southeast. 392 South Broadway's property
is bounded on the north and west by the Cumberland Farms
property and Route 28 on the east. The travel way across
these properties is known as Cuomo Drive.
case was instituted, in 2009, by plaintiffs 412 South
Broadway Realty, LLC and Salem Rockingham, LLC, which owned
property located just to the south of Cuomo Drive, against
the defendants and Cumberland Farms. 412 South Broadway,
whose property abuts Cuomo Drive on its northern boundary,
alleged that the defendants were crossing onto its property
and unlawfully expanding the right-of-way located on
Cumberland Farms's property. 412 South Broadway requested
a declaratory judgment that the right-of-way did not run
across its property and that the defendants had no property
rights over its land. Because the litigation involved the
defendants' claim that they had the right to cross the
State-owned railroad tracks and the property owned by 392
South Broadway, the trial court required that they both be
joined as parties to the litigation.
defendants filed several counterclaims against 412 South
Broadway, alleging that, over its years of use, Cuomo Drive
had expanded onto a small section of 412 South Broadway's
property and that the defendants had acquired that portion
through adverse possession or, alternatively, had acquired a
prescriptive easement over it. This disputed portion of 412
South Broadway's property became known throughout the
case as the "cross-hatched area."
2011, 412 South Broadway sold its property to FUN Trust. FUN
Trust later joined the litigation and asserted several claims
against the defendants. Among other claims, FUN Trust alleged
that the defendants had committed slander of title and abuse
of process in connection with the appeal of a site plan
approval that FUN Trust had received from the Town of Salem
Planning Board in 2012.
to trial, the State and Cumberland Farms settled the claims
pending against them. As a result, the remaining property
rights issues concerned the defendants' claims that: (1)
they had adversely possessed, or gained prescriptive easement
rights to, the cross-hatched area on FUN Trust's
property; and (2) they had a deeded right-of-way over the
property owned by 392 South Broadway. The parties agreed to
present evidence with regard to these issues, and then,
depending upon the outcome, FUN Trust would present evidence
on its slander of title and abuse of process claims against
the defendants at a later date.
a four-day bench trial, the trial court issued an order
finding that the defendants had not demonstrated any property
rights to the cross-hatched area. Specifically, the trial
court stated that, due to a berm constructed along the
northern boundary of FUN Trust's property line in the
1990s, the defendants "failed to demonstrate continuous
use of the cross-hatched area for the prescriptive
period." The trial court also found that "even if
[the defendants] could demonstrate they have fulfilled the
requisite time requirements for adverse possession, they have
not shown a definitive right to the disputed area because
their description of the area crossed lacks any
regard to the defendants' claim of deeded easement rights
over 392 South Broadway's property, the trial court found
that no such right existed. The trial court determined that,
in 1874, the original grantor, John A. Messer, sold a parcel
of property on the east side of the railroad tracks, which
included the land that eventually became the lot owned by 392
South Broadway, reserving as a right-of-way "whatever
may be necessary in going to and from land of said Messer on
the Westerly side of said Railroad." The trial court
found that "at the time John A. [Messer] reserved that
right of way for himself, the property he owned on the West .
. . side of the rail road tracks [which included the
defendants' property] was a life estate only." Thus,
the court stated that John A. Messer "did not reserve
for himself a perpetual right of way[;] [r]ather, he reserved
a personal interest, or an easement in gross, " which
terminated when his interest in the life estate terminated.
the trial court ruled that, even assuming that the
right-of-way passed with title to the property west of the
railroad tracks, the right-of-way was later extinguished as
to the defendants' property. The court cited a deed in
the defendants' chain of title that did not mention the
right-of-way in 1945, but found that the same grantor
specifically did reference the right-of-way in deeds
conveying two properties on the east side of the railroad
tracks. The trial court found that that grantor "chose
only to convey the benefit of the right of way to [the]
properties on the East side of the railroad tracks" and
that the defendants' property "did not obtain the
disputed right of way." Given these rulings, the trial
court directed the clerk to set a date for a bench trial
regarding FUN Trust's remaining slander of title and
abuse of process claims.
Trust's remaining claims stemmed from the defendants'
appeal of a 2012 Town of Salem Planning Board decision,
which, over the defendants' objections, approved FUN
Trust's site plan application. The defendants claimed
that the planned redevelopment interfered with their rights
to access Cuomo Drive and to cross over FUN Trust's
property. The trial court heard evidence on these claims
during a two-day bench trial. In its order, the court found