Real property – Easement – Fence

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Where two defendants who have an easement erected a fence on a portion of the plaintiffs’ property subject to the easement, a judgment in favor of the defendants must be vacated because “landscaping” language in the easement did not permit the defendants to erect and maintain the fence.

“The parties own neighboring properties in Great Barrington. The defendants, Stacy L. Allegrone-Lewis and Joseph C. Lewis, have an easement over a portion of the neighboring property, which is owned by the Buslik Family Nominee Realty Trust and managed by trustees James B. Buslik and Debra A. Buslik, the plaintiffs. The defendants erected a fence on the portion of the plaintiffs’ property that is subject to the easement; the plaintiffs filed suit in the Superior Court alleging trespass and seeking an order requiring the defendants to remove the fence. After a jury-waived trial, and in a thoughtful written decision, the judge concluded that the language of the easement was ambiguous, and that the existence of the fence was consistent with the easement grantor’s intent ‘to allow the defendants to use the … land [subject to the easement] as their property for all reasonable purposes.’ Accordingly, judgment entered for the defendants. Because we see the language of the easement as unambiguous, however, and we therefore do not consider the intent of the grantor, we vacate the judgment. …

“Here, the language of the easement limited the defendants’ permitted use of the land to ‘pass[ing] and re-pass[ing] … over the Easement area,’ and ‘to introduc[ing] [and maintaining] … landscaping’ there. … The definition of ‘landscaping’ does not, we conclude, include the erection and maintenance of a gate like the one at issue here, and we do not discern any ambiguity in the easement on this point.

“Even if we were to conclude that the language was ambiguous, however, our review of the circumstances ‘attendant’ to the creation of the easement would not persuade us that the easement permitted the defendants to erect and maintain the metal fence. … We accept as true defendants’ counsel’s candid admission at oral argument that the purpose of the easement was to extend the frontage of the plaintiffs’ lot while treating the servient area in all practical ways as if it were owned by the defendants. We are not, however, persuaded that, where the easement is explicitly directed toward ‘landscaping,’ any ambiguity in that term should be resolved by allowing the defendants to bring any activity on the servient area into its definition. To do so would, in our view, be less an exercise in interpreting the easement than in rewriting it, and for that reason, even considering the circumstances in which the easement was created, we are not persuaded that it permits the defendants to maintain the fence over the servient area.”

Buslik, et al. v. Allegrone-Lewis, et al. (Lawyers Weekly No. 81-119-25) (6 pages) (Docket No. 24-P-1181) (Aug. 7, 2025).

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