Appeals Court Hears Challenge to Trial Judge’s Elmwood Avenue Width and Stone Wall Order

An Appeals Court panel of Judge John Englander, Judge Hodges and Judge Smith heard Jan. 13 argument in Egan v. Seidman, a boundary dispute arising in the Highlands section of Oak Bluffs about the location and width of Elmwood Avenue and a stone wall built near the traveled way.

Defendants’ counsel Thomas Orr told the panel the case is “unique” and urged that the plaintiff failed to meet the burden of proof to establish the scope of the easement and the road width. Orr argued the Highlands plans dating to the 1800s are imprecise, that competing plan overlays (including the Land Court plan and the Gilstad overlay) conflict, and that the trial court improperly filled gaps in the evidence to determine the western boundary and the required location for the wall.

Appellee counsel Michael Goldsmith defended the trial record and Judge Foster’s factfinding. Goldsmith told the panel the trial judge conducted a thorough hearing, “walked the property,” and reviewed 82 exhibits including deeds and surveys. Goldsmith said the judge reasonably relied on monumentation, the evidence about travel patterns, and a ruling that accommodated utility access when ordering the wall moved.

A principal dispute at argument was methodology: plaintiff expert Reed Silva used scaling from a Highlands plan to derive a 30-foot width; the trial court rejected adopting a flat 30-foot right-of-way and instead required the plaintiff to file a revised plan placing the relocated wall five feet west of a utility pole, producing a working width in the disputed block of roughly 24.7 feet. Defense counsel argued there was no record basis for the judge’s five-foot buffer and that the judge’s approach effectively shrank defendants’ lot rights; plaintiff’s counsel countered the judge’s placement reflects practical use, monumentation and long-established utilities.

The judges focused questioning on whether the trial court’s approach was clear error, whether the eastern boundary could be established from monuments and deed references, and whether the trial court properly weighed competing expert methods (scaling versus overlay). The panel also asked about the practical consequences of the ruling on lot sizes and whether the wall’s encroachment on the traveled way was de minimis.

The trial court ordered the plaintiff to file a revised judgment plan showing the wall’s new location; counsel told the panel that plan is part of the judgment and indicates Elmwood’s width in the contested area varies between about 24 and 27 feet. The panel took argument and reserved decision.