MISC 181916

July 14, 2008


Long, J.



This case involves a dispute between neighbors. Plaintiffs Laurence and Harriet Fordham own and reside at the property located at 518 South Avenue in Weston (the “518 property”); defendant Paul O’Neill owns the abutting property at 526 South Avenue (the “526 property”). The plaintiffs concede that a 250-square-foot portion of their driveway (“the disputed area”) is located on the defendant’s property. However, they claim that they entered into an agreement with Herbert Cohen, the husband of Mr. O’Neill’s predecessor in title, by which, in exchange for the plaintiffs not cutting down trees on the 518 property, they could locate a portion of their driveway on the 526 property. The Fordhams claim that this oral agreement was a perpetual easement; however, there is nothing on record indicating the existence of the alleged easement or any agreement between the Cohens and the Fordhams.

Several years after the defendant purchased the 526 property in 1987, his attorney sent a letter to the plaintiffs indicating that the Fordhams’ driveway was encroaching upon the defendant’s property and a survey was being conducted. As a result of this letter and Mr. Fordham’s discovery that there was nothing on record memorializing the alleged driveway agreement, the plaintiffs filed a complaint pursuant to G.L. c. 231A, § 1, et seq., asking this court to (1) enter a judgment declaring that there is “an easement in the [disputed area] for the construction, maintenance, and use of a driveway for all purposes for which ways are used in the Town of Weston, and for erection and maintenance of any support necessary for the driveway; (2) enjoin Mr. O’Neill and any succeeding owner(s) of [the 528 property] from interfering with the exercise of rights in that easement by the Fordhams and any succeeding owner(s) of [the 518 property]; and (3) grant the Fordhams such other and further relief as it may deem just and proper.” Verified Complaint at 6 (July 24, 1992). Since the alleged easement was never recorded, the plaintiffs contend that they acquired an easement by prescription.

The defendant moved for partial summary judgment, arguing that since the plaintiffs admit that their use of the disputed area was based upon an “agreement,” the plaintiffs’ use was not adverse and the plaintiffs cannot acquire an easement by prescription. In addition, since there is no record of an easement ever being established, the defendant contends that the Cohens and Fordhams created, if anything, a revocable license. The plaintiffs cross-moved for summary judgment, contending that an easement was created. For the reasons set forth below, I ALLOW the defendant’s motion for partial summary judgment and DENY the plaintiffs’ cross-motion for summary judgment.


Summary judgment is appropriately entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following material facts are undisputed for the purposes of these motions. [Note 1]

The plaintiffs signed a purchase and sale agreement to purchase the 518 property from Peter Brine on October 29, 1971. The 518 property was a vacant, wooded lot at that time and the neighboring 526 property was owned by Evelyn Cohen. At some point in the fall of 1971 and after the Fordhams signed the purchase and sale agreement, Mr. Fordham (an attorney) had a conversation with Herbert Cohen (also an attorney), Evelyn’s husband. During this conversation, Mr. Cohen requested that the Fordhams refrain from cutting down trees on the 518 property. In exchange for doing so, Mr. Cohen would allow the Fordhams to construct a portion of their driveway on the 526 property. After speaking with his wife, Mr. Fordham agreed and Mr. Cohen allegedly offered to put the agreement in writing and record it since he was a real estate attorney. However, the agreement was never put in writing, never signed by any of the parties, and never recorded, and Mr. Fordham never followed up with Mr. Cohen to check on its status or review any drafts. So far as the record shows, Mr. Cohen never drafted anything.

During the fall of 1971, Mr. Brine permitted the Fordhams to conduct site work on the 518 property, which included clearing portions of the property of trees and brush. The Fordhams also used the disputed area for ingress and egress. The Fordhams’ contractor, Deck House, Inc., prepared a sketch of the location of the driveway, which Mr. Cohen approved, and staked it out on approximately April 1, 1972. The driveway was “substantially completed by May 10, 1972.” Plaintiffs’ Statement of Material Facts Not in Dispute at 3, ¶ 19 (filed Nov. 8, 2006). The Fordhams finally acquired title to the 518 property on June 1, 1972.

At some point in 1980, the Cohens placed the 526 property on the market. At that time, Mr. Cohen allegedly approached Mr. Fordham to see if the Fordhams would be willing to modify the driveway arrangement if it was necessary to facilitate a sale. Mr. Fordham declined to do so. [Note 2] Nevertheless, the 526 property was sold on March 25, 1980 to Robert Sutherland and Louise Herbert and again on November 2, 1987 to the defendant Paul O’Neill.

In a letter dated May 20, 1992, the defendant’s counsel informed the plaintiffs that a survey was being prepared for the defendant and that “early indications are that a portion of your driveway encroaches on Mr. O’Neill’s land . . .” Letter from M. Catherine Mawn to Mr. and Mrs. Fordham (May 20, 1992). It was only after receiving this letter that the plaintiffs checked the registry to determine whether the “easement” was recorded. Id. at 5, ¶ 38. To his “shock[] and dismay[],” Mr. Fordham discovered that no such “easement” was recorded. The plaintiffs then filed this case, seeking a declaratory judgment that they had obtained a prescriptive easement.

The plaintiffs have used the entire driveway, including the disputed area, for ingress and egress to their home from the time that home was first being constructed. They have also maintained the driveway, resurfaced it, have permitted “social guests and business invitees” to use it, and have posted “No Trespassing” signs near the entrance of the driveway. Id. at 3, ¶¶ 22, 23. The Fordhams claim to use the disputed area “pursuant to their right based upon their oral agreement with the Cohens” and claim to have used it “as if they had been owners outright.” Id. at ¶¶ 24, 26. However, Mr. Fordham acknowledged in his deposition that he does not claim any right in the fee interest of the property, acknowledging that he knew “the fee is where you claim ownership to the land.” [Note 3] Deposition of Laurence S. Fordham at 58 (Dec. 2, 2005).

Other pertinent facts are included in the analysis section below.

The Elements Required to Establish a Prescriptive Easement

In order to obtain an easement by prescription, there must be “uninterrupted, open, notorious and adverse use for twenty years over the land.” Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Similar to adverse possession, the plaintiff has “the burden of proving that the use of the [easement] under consideration had been open, uninterrupted and adverse for a period of not less than twenty years.” Tucker v. Poch, 321 Mass. 321 , 323 (1947). However, unlike a claim of adverse possession, “[i]t is not necessary . . . for one claiming an easement by prescription to show that his use has been ‘exclusive.’” Labounty v. Vickers, 352 Mass. 337 , 349 (1967). “The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Id. at 324 (quoting Truc v. Field, 269 Mass. 524 , 528-29 (1930)).


As noted above, in order to obtain an easement by prescription, the claimant’s use must be adverse. “[P]ermissive use is inconsistent with adverse use.” Ryan, 348 Mass. at 263. The plaintiffs themselves have explicitly stated that they have used the disputed portion of the driveway based upon an oral agreement with Mr. Cohen. Although Mr. Fordham testified that he does not “like the word ‘permission,’” preferring to characterize the situation as “an agreement which in my mind constituted an easement,” Deposition of Laurence S. Fordham at 59; see also Plaintiffs’ Statement of Material Facts Not in Dispute at 2, ¶¶ 7-8, 3, ¶ 26, either term clearly indicates that the plaintiffs’ use was not adverse. [Note 4]

The plaintiffs are correct that “the rule in Massachusetts [is] that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Davenport v. Danvers, 336 Mass. 106 , 112 (1957) (quoting Truc v. Field, 269 Mass. 524 , 528-29 (1930)). Here, however, there is an explanation, and one provided by the plaintiffs themselves – the Cohens allowed the Fordhams to locate their driveway on the 526 property. This oral agreement amounted to “permission which is more than mere acquiescence and amounts to an implied license.” [Note 5] Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). As the Appeals Court in Spencer stated, “[p]ermission of this character carries authority to do some act or a series of acts on the land of another without passing any estate in the land and in its nature is revocable. It rebuts the presumption of adverse use which arises from the unexplained use of an easement for twenty years.” Id.

By the plaintiffs’ own account, Mr. Cohen (on behalf of his wife) [Note 6] and the Fordhams entered into an agreement whereby the plaintiffs were permitted to construct their driveway on the Cohens’ property. Therefore, the plaintiffs had the Cohens’ consent to use the 526 property for their driveway, which defeats a claim of adverse use. Kendall v. Selvaggio, 413 Mass. 619 , 623 (1992); Silverlieb v. Hebshie, 33 Mass. App. Ct. 911 , 912 (1992). In addition, Mr. Cohen allegedly reviewed the plans for the driveway and approved its location. Plaintiffs’ Statement of Material Facts Not in Dispute at 2, ¶ 17. The very fact that the Fordhams believed it necessary to have Mr. Cohen review and approve the location of the driveway also defeats their claim of adverse use. See Totman v. Malloy, 431 Mass. 143 , 145 (2000) (“The essence of nonpermissive use is lack of consent from the true owner.”); Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976) (“One’s use of another person’s property is adverse to that person if the manner of his use and the circumstances thereof demonstrate that he does not recognize or consider himself to be subject to an authority in that person to prevent his use of the property.”).

Since the plaintiffs’ use of the disputed area was not adverse during the time that Mrs. Cohen owned the property, the plaintiffs cannot acquire an easement by prescription until, if at all, after Mrs. Cohen sold the property in 1980. The plaintiffs have the burden of proving all elements necessary to establish they acquired an easement by prescription. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). In their statement of material facts, the plaintiffs contend that they “have not recognized by word or deed any authority in the successive owners of the Disputed Area to use the Disputed Area or to prevent or permit plaintiffs’ continued use of the Disputed Area.” Plaintiffs’ Statement of Material Facts Not in Dispute at 3, ¶ 25. The defendant disputed this statement; however, he bases that dispute solely on his contention that the plaintiffs used the disputed area “pursuant to the allowed grant from Herbert Cohen . . .” Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute at 6, ¶ 25 (Nov. 8, 2006). This says nothing about whether the plaintiffs had permission from the subsequent owners of the 526 property and, therefore, I will accept the plaintiffs’ statement that they did not as true for the purposes of the summary judgment analysis. But, even assuming that the plaintiffs’ use of the disputed area was adverse from 1980 (the date Mrs. Cohen sold the property) on, the plaintiffs still cannot acquire an easement by prescription because their adverse use lasted only until they filed this suit in 1992, cutting off the running of the statute well short of the required twenty years.

The plaintiffs also argued that since the alleged easement was “imperfectly created” and violated the statute of frauds, the “imperfectly created servitude is prescriptive.” Memorandum of Law in Support of Plaintiffs’ Cross-Motion for Summary Judgment at 8 (filed Nov. 8, 2006) (citing Restatement of Law, Third, Property, § 2.16(2)). However, the alleged oral easement results in a license, not an easement by prescription. Spencer, 340 Mass. at 93 (where, as here, a portion of a driveway was located on both parties’ lots and the plaintiff had permission to use the driveway and to construct a garage on the defendants’ lot, there was a revocable license); Nelson v. American Telephone & Telegraph Co., 270 Mass. 471 , 479-480 (1930) (where, despite a signed, written letter granting permission to construct and maintain telephone lines, the defendant was a mere licensee and such writing “was a mere license which was revocable and gave [the defendant] no estate or interest in the land”); see also Rogel v. Collinson, 54 Mass. App. Ct. 304 , 312-13 (2002) (affirming the lower court’s finding that an alleged oral easement was a license); Cook v. Stearns, 11 Mass. 533 , 536 (1814) (oral permission to enter onto land to repair a dam, bank and canal serving the claimant’s mill without a deed or writing is nothing more than an “estate[] at will” and thus was revocable at will). The case cited by the plaintiff, Sumner v. Stevens, does not suggest otherwise. In that case, the defendant was gifted (by parol) the property in dispute and took sole and exclusive possession of that property for more than twenty years under an express claim of ownership, understood as such by the donor. 47 Mass. 337 , 337-38 (1843). Since the defendant entered claiming to be an owner, and the donor knew the defendant was entering under a claim of ownership, the use was adverse. [Note 7] Id. at 338-39 (“the possession is taken by the donee, as owner, and because he claims to be owner; and the grantor or donor admits that he is owner, and yields the possession because he is owner”).

Here, by contrast, there was neither a claim of ownership by the Fordhams, nor anything that would have put the Cohens on notice that the Fordhams were making an adverse claim. Instead, the Fordhams did exactly what the Cohens agreed they could do – locate and use a portion of their driveway on the 526 property. Any claim of right by the Fordhams in those circumstances, sufficient to put the Cohens on notice that it was adverse, would have had to be something more than the construction and use of the driveway.

Finally, the Fordhams’ attempt to enforce the alleged oral easement violates, as they concede, the statute of frauds. G.L. c. 259, § 1. The facts of this case do not make the statute inapplicable since there was not “sufficient partial performance of detrimental reliance.” Rogel, 54 Mass. App. Ct. at 312. In order to avoid the statute, it must be established that the Fordhams, “in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.” Barber v. Fox, 36 Mass. App. Ct. 525 , 530 (1994). Here, there could not have been such reasonable reliance.

Mr. Fordham admitted that an important component of the agreement was that it be reduced to writing and recorded. Despite this, Mr. Fordham never followed up to determine whether the agreement had been put in to writing, and never followed up to review it. It is unreasonable for Mr. Fordham, an attorney, [Note 8] not to have insisted on reviewing such an important document – for all he knew, Mr. Cohen could have incorporated rights and obligations into the easement that the Fordhams would not have consented to and would have considered inconsistent with the parties’ oral agreement. Mr. Fordham and his wife also never signed any agreement. As a lawyer, Mr. Fordham surely knew that any restriction on the 518 property (a prohibition on cutting down certain trees) would need to be signed by both he and his wife and recorded in their chain of title. G.L. c. 184, § 29. He also surely appreciated that the agreement he alleges (you can put your driveway on our property if you do not cut down certain trees on yours) was too vague for enforcement in that form and needed much greater precision. What trees? Where? Do I need to check with you before removing any trees? What if they become diseased? If I remove even one, must I remove the driveway from the disputed area immediately? What, if any, right do I have to cure? What would be the cure? Finally, Mr. Fordham never checked to see whether the “easement” was recorded, as was required by the terms of the agreement.

Mr. Fordham contends that he did not follow up on these important aspects of the agreement because he had become “a managing partner of Foley, Hoag & Eliot and was just deluged with other burdens and responsibilities so that I didn’t have a check list that said get document from Herb Cohen.” Deposition of Laurence S. Fordham at 73. This may be so, but it does not make his reliance “reasonable.” If this prejudices the Fordhams, they only have themselves to blame for not following up and ensuring that the agreement was reduced to writing, signed, and duly recorded.

Finally, Mr. Fordham stressed that the Cohens had a similar agreement with Peter Brine, the former owner of the 518 property. In his affidavit, Peter Brine confirmed that he had a similar agreement with the Cohens – he would maintain the stand of trees in exchange for the Cohens agreeing that he could place a portion of his driveway on their property. Mr. Brine stated that “[t]hese were the only terms.” Aff. of Peter Brine at 3 (May 29, 1993). However, Mr. Brine also stated that it was his understanding that the agreement was in perpetuity. The fact that this agreement was not in writing and not recorded is illustrative. The fact that Mr. Cohen, a real estate attorney, entered into two agreements, allegedly perpetual, without memorializing them in writing suggests that he never intended them to be enforceable, perpetual easements. Further, if Mr. Brine’s agreement was truly perpetual in nature, Mr. Cohen would not have needed to enter into an agreement with the Fordhams to continue such an arrangement.

All of these factors show that it was not reasonable for the Fordhams to rely on the alleged oral agreement and do not permit the Fordhams to enforce it in violation of the statute of frauds. If the Fordhams truly wanted to ensure the perpetual nature of their arrangement, it was incumbent upon them to memorialize it in writing or, at the very least, follow up with Mr. Cohen to ensure that he had done so. Mr. Fordham, an experienced attorney in his own right, not only did not ensure that the agreement was in writing, but also did not check to see whether the plaintiffs were entering into the agreement with the rightful owner of the 526 property – Mrs. Cohen. [Note 9] Again, the fact that he was a busy managing partner does not excuse these failures. Finally, when alerted to the fact that the Cohens were selling the property, Mr. Fordham never thought to check that the agreement was on record to protect his rights to use the disputed area after title changed hands. All of these actions (or inactions) were unreasonable.

In addition to the absence of reasonable reliance, the plaintiffs have not changed their position in such a manner that injustice will result from not enforcing the oral agreement. The disputed area is only a 250-foot portion of their driveway and can, with the requisite approvals and permits, be relocated. [Note 10] Yes, they have spent money and resources in constructing and maintaining that portion of the driveway, but that is not enough to avoid the statute of frauds. See Nelson, 270 Mass. at 475, 479-80 (where, despite the defendant’s construction and maintenance of telephone poles and wires and the costs associated with relocating the lines, the court found that the defendant was a licensee and must remove its property).


For the forgoing reasons, I find and rule that the plaintiffs’ agreement with the Cohens was a license, revocable at will. I also find and rule that the plaintiffs cannot enforce their oral agreement against the defendant since it violated the statute of frauds. Accordingly, I ALLOW the defendants’ motion for partial summary judgment and DENY the plaintiffs’ cross-motion for summary judgment. The parties shall contact the court to schedule further hearings on the remaining counts.


By the court (Long, J.)


[Note 1] The defendant does not dispute these facts for the purpose of summary judgment. For many of the facts, the defendant stated that they were “[u]ndisputed for summary judgment purposes only. Mr. O’Neill reserves his right to dispute these statements and to challenge the admissibility and/or the foundation for the statements at trial.” Defendant’s Response to Plaintiffs’ Statement of Material Facts Not in Dispute (Nov. 8, 2006). Mr. O’Neill specifically challenges many of the facts based upon hearsay, foundation, and relevance. Since I rule in favor of Mr. O’Neill, and do so whether the “facts” he challenges are based on admissible evidence or not, I need not and do not rule on his challenges.

[Note 2] Mr. Fordham did not ask to see a copy of the alleged easement agreement on this occasion, nor did he check at the registry to see if one was on record.

[Note 3] For the purposes of summary judgment, to the extent there are any discrepancies between Mr. Fordham’s deposition testimony and his affidavits, his deposition testimony controls. See O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905 , 906 (1993).

[Note 4] The plaintiffs also contend that their use of the disputed area was adverse because they had the exclusive use of the disputed area, which “was adverse to the Cohens and their successors in interest, and reciprocally, that we were obligated not to remove the pine trees, which was adverse to us.” Aff. of Laurence F. Fordham at 8, ¶ 9. This statement is a clear misunderstanding of what constitutes adverse use and merely suggests that the oral agreement had both benefits and burdens for both parties.

[Note 5] As the Supreme Judicial Court stated, there is a difference between “implied acquiescence” and permission. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). While permission will defeat a claim of adverse use, “adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto.” Id. Here, the plaintiffs admit that they had an explicit agreement to use the disputed area. As such, their use was based upon permission and not implied acquiescence.

[Note 6] At the time of the alleged oral agreement, Mrs. Cohen was the sole owner of the 526 property. However, the plaintiffs allege, and the defendant concedes for the purposes of summary judgment, that Mr. Cohen entered into the agreement on behalf of his wife. For the purposes of this order, I accept this fact as true and, as a result, the plaintiffs had permission to use the disputed area from its true owner.

[Note 7] There are a handful of cases from the 1800s that reach similar results. For example, in Stearns v. Janes, the court held that if the use of an easement “is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right.” 12 Allen 582 , 584, 94 Mass. 582 , 584 (1866) (emphasis added). As in Sumner, the original parties “dug the well under a verbal contract that they should own and have the right to use the well and way in common” and the defendant used the well “under a claim of right.” Id. at 583 (emphasis added). These cases suggest that in order for a parol easement to be enforceable, one has to use the property under an explicit claim of right of title recognized as such by the other party. In addition, these cases are from the 1800s, have (so far as I can tell) ceased to be cited since the early 1900s, and the more recent cases hold that alleged oral agreements amount to nothing more than licenses.

[Note 8] I recognize that there is not a higher standard for lawyers when entering into a contract; however, this fact does play a role in the reasonableness of Mr. Fordham’s actions.

[Note 9] As stated earlier, for the purposes of these motions, the parties agree that Mr. Cohen had Mrs. Cohen’s authorization to discuss the agreement between the parties. However, if such agreement was to be reduced to writing, Mrs. Cohen must have been the party to sign it as the owner of the 526 property.

[Note 10] I understand from Mr. Fordham’s supplemental affidavit that the defendant is contesting his application for such permits, which were initially approved. I also understand that Mr. Fordham contends that the defendant is contesting the relocation of the driveway in order to extract financial gains from the Fordhams. Whether this accusation is true or not does not change my analysis.