REBECCA R. YOUNG vs. ROBERT C. ORDUNG and PATRICIA H. ORDUNG

Plaintiff, Rebecca R. Young, (“Plaintiff”) filed a verified Complaint on January 18, 2006, pursuant to G. L. c. 231A seeking a Declaratory Judgment that Defendants Robert C. Ordung and Patricia H. Ordung (“Defendants”) have no rights to park on a right of way (the “Right of Way”) owned by Plaintiff, and seeking to enjoin Defendants from parking on the Right of Way and to recover damages for Defendants’ trespass on Plaintiff’s Property, as hereinafter defined, pursuant to G. L. c. 185, §§ 1(k) and (o). Plaintiff filed a Motion for a Preliminary Injunction on February 1, 2006, a hearing was held on February 16, 2006, and the parties entered into a stipulation dated the same day (the “Stipulation”) relative to the use of the Right of Way. [Note 1]

On August 2, 2006, Defendants filed an Answer and Counterclaim, seeking a determination of parking rights with respect to the Right of Way, including claims of adverse possession and prescriptive rights relative to a portion of the Right of Way (the “Disputed Area”). On August 15, 2006, Plaintiff filed her Motion to Strike Defendants’ Answer to Plaintiff’s Complaint and Counterclaim and on August 30, 2006, filed an action for Contempt against Defendants for violation of the Stipulation. A hearing on both matters was held on September 14, 2006, during which Plaintiff withdrew the Motion for Contempt, and the Motion to Strike Defendants’ Answer and Counterclaim was denied.

On April 17, 2007, the parties filed a Joint Pre-Trial Memorandum in which the parties agreed upon certain facts and exhibits. A site view was held on July 16, 2007, and on the same day the first day of a two-day trial was held at Fitchburg Superior Court in Fitchburg, Massachusetts. [Note 2] On July 17, 2007, the second day of trial was held at the Land Court in Boston, Massachusetts. Plaintiff filed a Motion for Involuntary Dismissal at the end of Defendants’ evidence and again at the end of trial, both times based on the fact that Defendants had not proved all elements of adverse possession and prescriptive easements. This court denied both motions. On October 19, 2007, both Plaintiff and Defendants filed Post-Trial Briefs, and the case went under advisement at that time.

Testimony at trial was given by Defendants’ witnesses Patricia Marion Ordung (Defendant), Susan Gothing (former tenant at Defendants’ property), Adrienne Ordung (Defendants’ sister-in-law), Alexandra Turner (Defendants’ predecessors’ invitee), Paul D’Alessandro (Defendants’ invitee), Kevin Lamb (Police Chief for Town of Lancaster), John Fleck (Fire Chief for Town of Lancaster), Daunne Miller (Defendants’ neighbor at 24 Barnes Court from 1985 to 2002), Robert Carroll Ordung (Defendant), and Maribeth Kelly (Patricia Ordung’s sister); and Plaintiff’s witnesses Timothy Minko (Plaintiff’s invitee), Christine McCarthy (real estate broker who sold Plaintiff her property), Norman Kennedy (Plaintiff’s invitee), Elaine Kennedy (Plaintiff’s invitee), Rebecca Ruth Young-Jones (Plaintiff), and David Harold Jones (Plaintiff’s husband). There were thirty exhibits admitted into evidence.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiff owns and resides at 94 Barnes Court, Lancaster, Worcester County, Massachusetts (“Plaintiff’s Property”). Plaintiff purchased Plaintiff’s Property by deed dated February 12, 1999, and recorded at the Worcester County Registry of Deeds (the “Registry”) at Book 21048, Page 358 (“Plaintiff’s Deed”). Plaintiff’s Property includes the Right of Way. The Right of Way is the sole means of ingress and egress to Plaintiff’s Property.

2. Defendants own and reside at 19-23 Barnes Court, Lancaster, Worcester County, Massachusetts (“Defendants’ Property”). Defendants and their tenants share a common driveway (“Defendants’ Driveway”) running northerly from the Right of Way and situated to the east of Defendants’ home. There is a fenced pool area adjacent to Defendants’ home to the west, and to the west of the pool area there is a gravel driveway (the “Gravel Driveway”) running northerly from the Right of Way. Defendants purchased Defendants’ Property, which consists of four parcels, from Nancy S. Dorr by deed dated May 18, 1984, and recorded at the Registry at Book 8216, Page 97 (“Defendants’ Deed”), and moved into their home in July 1984. Defendants’ Property begins near the intersection of Barnes Court and Main Street, and extends for several hundred feet up to Plaintiff’s Property, abutting the easterly boundary of Plaintiff’s Property. Defendants’ home is approximately one-quarter mile from Plaintiff’s home.

The Right of Way

3. Barnes Court is a public way (“Barnes Court”) running in a westerly direction from Main Street to the beginning of Defendants’ Driveway, at which point it becomes a private way (the Right of Way) running to a point near the southeasterly border of Plaintiff’s Property. The Right of Way is twenty-five feet wide, consisting of a ten foot paved strip at its center, running the length of the way. [Note 3] On either side of the paved strip is a grass strip, which is between eight and eight and one half feet wide along Defendants’ side of the Right of Way.

4. The Disputed Area is the portion of the grass strip on Defendants’ side of the Right of Way. The Disputed Area can be further defined as two separate areas: the portion of the Disputed Area between the Gravel Driveway (on the west) and the end of Barnes Court (on the east), approximately ninety feet long, including a portion of Defendants’ Driveway (“Disputed Area A”), and the portion of the Disputed Area extending westerly of the Gravel Driveway for approximately 200 feet (“Disputed Area B”). Disputed Area A lies directly in front of Defendants’ house at 23 Barnes Court. [Note 4]

5. The terms of the Right of Way as recorded in Plaintiff’s Deed are as follows: “We, Richard Gibson Dorr, Jr. and Carol B. Dorr, husband and wife . . . grant to Rebecca R. Young . . . with quitclaim covenants, a certain parcel of land, containing approximately 13 acres, located westerly of Main Street in Lancaster, Worcester Country, Massachusetts, bounded and described as follows . . . Together with the fee and soil of Barnes Court which runs from the granted premises in an easterly direction to Main Street and subject to the rights of others legally entitled to use said Barnes Court for all purposes for which streets and ways are commonly used in the Town of Lancaster.”

6. Defendants possess an easement over the Right of Way. The terms of the Right of Way as recorded in Defendants’ Deed are as follows:

“I, Nancy S. Dorr . . . grant to Robert C. Ordung and Patricia H. Ordung, husband and wife . . . with quitclaim covenants the land with the buildings thereon situated off Barnes Court, Lancaster, said County of Worcester, Massachusetts, bounded as follows: [PARCEL I] Being Lot #1 as shown on a plan “Land in Lancaster, Mass., surveyed for Dudley H. Dorr, Sr., July 1958 . . .[PARCEL II] Being Lot #2 as shown on above-mentioned plan, bounded . . .Both the above-described parcels of land are conveyed with the right to use as appurtenant thereto the twenty-five foot strip of land marked “Dudley H. Dorr, Sr.,” lying between and adjacent to Lots #1 and #2 as shown on above mentioned plan, together with the right to use and appurtenant thereto the twenty-five foot strip of land marked “Dudley H. Door, Sr.” and adjacent to and lying southerly of said premises to Barnes Court for all purposes that a right of way may be used in the Town of Lancaster, as shown on said plan.” [Note 5]

7. Parking is permitted on public ways in the Town of Lancaster, except during the winter between the hours of 1:00 a.m. to 6:00 a.m.

8. The paved portion of the Right of Way is sufficiently wide for the ingress and egress of police cars and other emergency vehicles, including fire trucks and ambulance.

Defendants’ Use

9. In the 1970’s through the early 1980’s Alexandra Turner, individually and with her family, parked on or around what is now Disputed Area A on average of two to three times per week (with the exception of the winter months) as a guest of the Dudley and Nancy Dorr family, Defendants’ predecessors in title, for pool parties and horseback riding.

10. Defendants moved into their home in July 1984. Defendants’ house (23 Barnes Court) is situated on the southeastern corner of Defendants’ Property, to the west of Defendants’ Driveway. Defendants’ Driveway, leading from the garage to the Right of Way, allows for approximately six vehicles to park in two parallel lines of three vehicles. The pavement of Defendants’ Driveway extends across Disputed Area A.

11. A separate rental unit is attached to the garage (19 Barnes Court, “the Garage Unit”). Defendants allow tenants of the Garage Unit to use the three parking spaces on the right side of Defendants’ Driveway, while they use the parking spaces on the left.

12. The Garage Unit has been occupied by various tenants since Defendants moved in, in 1984.

13. Defendants had four children while living at 23 Barnes Court, beginning in September, 1984. The last child was born in February, 1991. In general, when Defendants’ children were growing up, [Note 6] they often played in Defendants’ Driveway which was consequently cluttered with toys, precluding parking on Defendants’ side of Defendants’ Driveway.

14. From 1984 until 2001, when Defendants’ first child obtained his driver’s license, Defendants owned two cars. Also at various times, Robert Ordung would bring home a company car, in addition to the two owned by Defendants. When Defendants’ son obtained his license in 2001, and their daughter in 2002, each acquired their own car, thus increasing Defendants’ vehicle count to four, sometimes five.

15. Robert Ordung parked on Disputed Area A at least three to four times per week during the 1980’s and the 1990’s. More recently, since his children have gotten their licenses, he has parked less frequently on Disputed Area A. Robert Ordung would park on Disputed Area A when he would come home from work for lunch or to care for his children. He described Disputed Area A as the second priority for parking if Defendants’ Driveway was full or being used by his children as a play area, and also indicated that Defendants, and later their children, would park on Disputed Area A if they had to be out early in the morning and did not want to get blocked in.

16. From January 1985 through May 2002, Daunne Miller resided at 24 Barnes Court, directly across the Right of Way from Defendants. During this time, she observed Robert Ordung parking on Disputed Area A daily, more or less, and otherwise observed cars parked on Disputed Area A about two times per week.

17. In general, Defendants had frequent visitors when the children were younger, [Note 7] who parked on Disputed Area A four days per week, more or less. Two or three families would visit per day. The practice of parking on Disputed Area A has been continued by Defendants’ children, (two of whom drive separate cars), guests, relatives, and friends up until the time of this litigation. [Note 8] Presently, Defendants and their children use four cars, not including the occasional addition of their son’s business truck.

18. From 1984 until 1998, Defendants’ sister-in-law, Adrienne Ordung, would visit at least three times per week. Adrienne Ordung would park in Disputed Area A approximately fifty percent of the time. From 1998 through the time of this litigation, Adrienne Ordung visited at most three times per week and continued to park on Disputed Area A fifty percent of the time, more or less.

19. From 1984 up until this litigation, Paul Dellasandro, Defendants’ friend and occasional handyman, would park his truck on Disputed Area A on average two times per month.

20. From 1984 until about 1995 or 1996, Maribeth Kelly (“Kelly”), Patricia Ordung’s sister, would visit weekly. From 1995 or 1996 through this litigation, her visits decreased to two times per month. Kelly parked on Disputed Area A approximately 70 percent of the time, including overnight stays.

21. Between 1984 and 1999, Defendants held large parties of 60-80 people about three times per year. As a result of these large gatherings, visitors would park on the Disputed Area in its entirety, including both Disputed Area A and Disputed Area B, as well as on their front lawn.

22. Since they moved in, Defendants have maintained the Disputed Area by mowing, planting flowers, and reseeding the lawn. They stopped after this litigation commenced pursuant to the Stipulation.

23. Generally in the winter, Defendants, their relatives and invitees, would not park on the Disputed Area if there was a significant accumulation of snow. Defendants did not regularly shovel or clear the Disputed Area in the winter. Robert Ordung testified that there were only a few days per winter that he was unable to park on Disputed Area A due to deep snow.

Plaintiff

24. Richard Gibson Dorr and Carol B. Dorr were Plaintiff’s predecessors in title.

25. Plaintiff moved into Plaintiff’s Property in late December 1999.

26. On or around September 14, 2001, Plaintiff sealed the paved portion of the Right of Way. For one day, she blocked the Right of Way by placing several sealant cans on the Right of Way to the west of Defendants’ Driveway, which prevented Defendants from accessing the Right of Way including the Disputed Area. At this time Plaintiff painted a line running the width of the paved portion of the Right of Way and the words “private way, no blocking” on the paved portion of the Right of Way. On this day, Robert Ordung objected to Plaintiff about her blockade of the Right of Way, but the conversation was focused on Defendants’ right to use the Right of Way for access to Defendants’ Property; there was no mention of parking.

27. Plaintiff sent Defendants a letter dated September 15, 2001, asserting her belief that Defendants did not have a right of way over the Right of Way. The letter stated, in pertinent part, as follows: “I will not discuss property rights while I am working on the maintenance of my driveway. At various times through the last two years, people in the neighborhood have claimed rights to my property and acted contrary to my best interests. I only know of one party who has a right of way past the two front driveways to 23 and 24 Barnes Court and that is the Jamieson property. There is no documentation to support other claims of rights of way . . . I allow traffic to pass on my driveway . . . because I like the neighborhood to be harmonious . . . [and] . . . because it is convenient and it has occurred in the past.”

28. Plaintiff’s attorney, Gary S. Brackett, sent Defendants a letter dated September 28, 2001, regarding Plaintiff’s letter dated September 15, 2001. The letter states, in pertinent part,

“Ms. Young has requested, and I also request, that if you have any legal opinion or documents to support any claim you may have regarding access and egress on Barnes Court, you should provide that information to us as soon as possible.”

29. Sometime in or around October 2001, Plaintiff and Robert Ordung had a conversation regarding Defendants’ use of the Right of Way, in which Plaintiff apologized for blocking Defendants’ access to the Right of Way. During this conversation, neither Plaintiff nor Robert Ordung mentioned the right to park on the Right of Way.

30. Plaintiff sent Defendants a letter dated June 1, 2005, which contains, in pertinent part, the following language:

“This letter concerns the safety issues of the cars parking on my property along the side of your frontyard. Most times there is a car parked on the side of my driveway and this narrows my driveway enough that a fire engine would not be able to pass. In recent months twice a vehicle has blocked my driveway completely. The easements granted for my driveway, which your property does not have, are only for vehicles to pass and re-pass, not for parking. I did not and do not want vehicles parked on my property in this area. I will not allow it…”

31. In July 2005, Plaintiff caused boulders to be installed along the Disputed Area to prevent Defendants and their guests from parking thereon. The boulders interfered with Defendants’ access to their front lawn and to the Right of Way, causing Defendants to ask Plaintiff to remove the boulders. Plaintiff refused and Defendants removed the boulders from the Disputed Area.

32. Since Plaintiff acquired her property in 1999, there have been at least three incidents where a vehicle in or around Defendants’ Driveway was blocking her access or egress on the Right of Way, or that of her guests. One of those times occurred in 2004, when Defendants’ guest was parked primarily on Disputed Area A, but partially on the paved portion of the Right of Way, blocking Plaintiff’s egress. Plaintiff indicated with her horn and then knocked on Defendants’ door stating, “There’s a car. I need to go. Somebody come out and move it.” The guest moved the car and Plaintiff passed.

33. In the late fall or early winter 2005, Plaintiff parked her vehicle on Disputed Area A in front of Defendants’ house for two to three weeks.

34. In 2005, Plaintiff made five complaints to the Lancaster Police about Defendants’ use of the Right of Way: four regarding parking and one regarding the removal of the boulders Plaintiff placed on the Disputed Area. The complaints were dated June 11, June 21, August 25, September 1, and September 25. It is unclear from the reports where the parking problem occurred.

35. Up until this litigation, Plaintiff had not maintained the Disputed Area.

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There are three main issues in this case. The first issue is whether the deeded easement in the Right of Way only includes the general right to pass and repass, excluding the right to park. The second concerns whether Defendants have established title to the Disputed Area by adverse possession or prescriptive rights for purposes of parking. [Note 9] The third is whether Defendants have committed a trespass on the Disputed Area by using it improperly to park. I shall address each issue in turn.

Deeded Rights

Plaintiff argues that Defendants’ easement rights in the Right of Way do not include a right to park and that a comparison of the language of Defendants’ Deed (the right to use the Right of Way “for all purposes that a right of way may be used in the Town of Lancaster”) and Plaintiff’s Deed (the right of others to use the Right of Way “for all purposes for which streets and ways are commonly used in the Town of Lancaster”) indicates that Defendants have only a general grant of right of way, which does not include the right to park. Defendants do not contest the language in Defendants’ Deed, but argue that the interpretation of Defendants’ Deed grants them the right to park. [Note 10]

The language of Defendants’ Deed states that the Right of Way is to be used “for all purposes that a right of way may be used in the Town of Lancaster.” To construe this language this court should first consider “the normal meaning of the words and then what may be the effect upon them of the particular surrounding circumstances in light of the usual rules of construction.” Beals v. Inhabitants of Brookline, 245 Mass. 20 , 24 (1923). “So far as language is capable of performing the function for which it was chosen, it is the primary source for the ascertainment of the meaning of a conveyance.” Restatement of Property § 483, cmt. d. (1944). See also Sheftel v. Lebel, 44 Mass. App. Ct. 175 (1998).

Numerous cases have found that a granted “right to pass and repass does not normally imply a right to park.” Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 375 (1997). See also Delconte v. Salloum, 336 Mass. 184 (1957). Additionally, the Supreme Judicial Court (the “SJC”) has also found that the rights of the public in public ways include some form of temporary parking, but has not defined the limits. See Opinion of the Justices, 297 Mass. 559 , 562 (1937). The Appeals Court in Harrington, however, went on to discuss that whether parking rights were implied in a grant is a question of fact. [Note 11] 42 Mass. App. Ct. at 375. In the case at bar, Defendants’ Deed granted more than a right to pass and repass, it granted the Right of Way “for all purposes that a right of way may be used in the Town of Lancaster.” The SJC has stated that “[i]n the absence of express limitations, such a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.” Tehan v. Security National Bank of Springfield, 340 Mass. 176 , 182 (1959). As such, the inquiry becomes whether Defendants’ use of the Right of Way for parking is reasonably necessary to the full enjoyment of Defendants’ Property.

The evidence submitted by Defendants does not support a finding that parking on the Right of Way is reasonably necessary to Defendants’ full enjoyment of Defendants’ Property. Several witnesses testified that Defendants, their children and their guests, parked on various places other than the Right of Way, such as Defendants’ Driveway, the Gravel Driveway, by the pool area, on the front lawn, behind the house and along Main Street. Certainly it was more convenient for Defendants to park on the Right of Way, specifically the Disputed Area, but that does not make it necessary. As a result, I find that Defendants’ Deed does not grant Defendants the right to park on the Right of Way. [Note 12]

Adverse Possession / Prescriptive Rights

Defendants allege in their counterclaim that they have parked on the Disputed Area in an adverse manner for more than twenty years and are therefore entitled to either the fee interest in the Disputed Area by adverse possession or prescriptive rights to park thereon. Plaintiff alleges that Defendants have not so used the Disputed Area, and that, since Defendants have a deeded right to use the Right of Way for access, they must show that they provided actual notice to Plaintiff of their adverse parking claim because of the special relationship.

It is well established in Massachusetts that “[t]itle by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years.” Ryan v. Starvos, 348 Mass. 251 , 262 (1964). See also G. L. c. 260, §21. The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). The nature of the required use varies with the characteristics of the land. Id. at 490. If the claimant has not been using the property for the required twenty year period, he can satisfy the requisite period by tacking on a grantor’s period of adverse possession, provided there is privity of estate between the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G. L. c. 260, § 22. The burden of proving acquisition of title through adverse possession is on the party claiming thereby. In addition, the Supreme Judicial Court (the “SJC”) has also stated that “[w]here a special relationship exists the putative adverse possessor is required to give actual notice to the true owner of the change in status from permissive to adverse.” Lawrence v. Town of Concord, 439 Mass. 416 , 424 (2003).

A party seeking to establish an easement by prescription must show continuous and uninterrupted, open and notorious, and adverse, but not exclusive use of the servient estate for a period of not less than twenty years. See G. L. c. 187, § 2; Tucker v. Poch, 321 Mass. 321 , 323 (1947); Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898). “[T]he burden of proof on each and every element” of the claim rests upon the party claiming an easement by prescription. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). See also Ivons Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). “[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under a 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.” Tucker, 321 Mass. at 324 (quoting Truc v. Field, 269 Mass. 524 , 528-529 (1930)).

The elements of adverse possession and prescriptive rights at issue in the case at bar are (1) the twenty-year period, (2) actual use, (3) open and notorious use and (4) exclusive use. I shall address each of these issues in turn.

A. The Twenty-year Period

Massachusetts requires that there be a continuous, uninterrupted twenty-year period to establish adverse possession or prescriptive rights. White v. Chaplin, 97 Mass. 101 , 104 (1867); Blake v. Everett, 1 Allen 248 , 251 (1861); Pollard v. Barnes, 2 Cush. 191 , 197-99 (1848). “Continuous use,” however, “does not necessarily mean ‘constant use.’” Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). Additionally, “[m]ere intermission is not interruption.” Id. The SJC in Bodfish stated that

“The continuity of the enjoyment may be shown by circumstantial evidence; and, in the language of the presiding judge, it is sufficient if the jury find such repeated acts of use, of such a character and at such intervals, as afforded a sufficient indication to the owner of the land that the right of way was claimed against him, and if they find that the way had been used in each of the twenty consecutive years, they would be justified in finding the continuous enjoyment, even though the defendant had not given evidence of actual use in each year of the twenty. This is merely another mode of saying that the circumstances may be such as to satisfy the jury that the use was continuous, even though the direct evidence of actual use as to one or two years in the series may be wanting.” Id. at 319-20.

Defendants’ evidence shows that Defendants and their guests have parked on the Disputed Area from 1984 until 2005. [Note 13] Defendants moved into Defendant Property in July 1984, on a day in which at least one car of many assisting Defendants in the move parked on Disputed Area A. Defendants rent the Garage Unit to tenants, and thus share Defendants’ Driveway, reserving the west side for themselves and the east side for tenants. This parking arrangement provides Defendants with space to park approximately three vehicles in Defendants’ Driveway. Oftentimes, the children would play in Defendants’ Driveway and crowd it with toys, precluding parking along the west side. Both Robert and Patricia Ordung testified to having daily visitors- family and friends, especially when their children were young, who would frequently park on Disputed Area A. Robert Ordung would also consistently come home during working hours for lunch or otherwise, when more times than not he would park on Disputed Area A. Otherwise he parked on Disputed Area A at least three to four times per week. The trial testimonies of Robert and Patricia Ordung were consistent with each other, and were corroborated by the testimony of several other witnesses including: Defendants’ former tenant, Susan Gothing; Defendants’ visitors, Adrienne Ordung, Paul Dellasandro and Maribeth Kelly; and Defendants’ neighbor from 1985 through 2002, Daunne Miller. Several of Plaintiff’s witnesses also testified to observing vehicles parked on Disputed Area A, including Timothy Minko, Elaine Kennedy and David Jones. Finally, Plaintiff herself gave evidence of Defendants’ parking on Disputed Area A. In her letter to Defendants dated June 1, 2005, Plaintiff states, “This letter concerns the safety issues of the cars parking on my property along the side of your frontyard. Most times there is a car parked on the side of my driveway . . . .”

Defendants’ first two children obtained their drivers’ licenses in 2001 and 2002, each acquiring their own car, increasing the number of family vehicles to five. The evidence indicates that around this time, visits from family and friends waned, but the Disputed Area continued to be utilized regularly as a result of the increase in the number of Defendants’ family vehicles. Presently, Defendants park four vehicles at Defendants’ Property, and occasionally park their son’s business truck.

Plaintiff’s evidence, in contrast, is spotty and inconsistent. Norman Kennedy and Christine McCarthy testified to visiting Plaintiff beginning in 1999 when Plaintiff moved into Plaintiff’s Property. However, their visits were too infrequent to produce any substantial evidence as to their observations of Defendants’ parking. Norman Kennedy visited somewhere between five to twenty times per year and as a result his testimony as to Defendants’ parking habits was unclear and vague. [Note 14] Similarly, Christine McCarthy testified that from 1999 to the present, she has visited Plaintiff four to six times per year, and from 1996 to 1999, while trying to sell Plaintiff’s Property, about twelve times per year. According to McCarthy, she has observed cars parked on the Disputed Area two times since 1999, but had never seen them parked on the Right of Way prior to that time. Such testimony was also unclear and vague.

Plaintiff argues that she interrupted Defendants’ use of the Right of Way for parking beginning in 2001, breaking the statutory twenty year period. See Ryan v. Starvos, 348 Mass. 251 , 264 (1964). On or around September 14, 2001, Plaintiff blocked the Right of Way, including the Disputed Area, for one day in order to have the paved portion of the Right of Way resealed. She placed several sealant cans to the west of Defendants’ Driveway and at this time also painted a line and the words “private property, no blocking” on the paved portion of the Right of Way. However, this was not an interruption intended to stop the parking, because although Defendants were temporarily prevented from accessing the Right of Way and the Disputed Area, Plaintiff’s blocking of the Right of Way was meant to prevent interference with the resealing of the paved portion of the Right of Way and the area was only closed off during the period of resealing. Defendants’ parking on the Disputed Area was only interrupted during the one day that the Right of Way was blocked for resealing. The evidence indicates that, due to Robert Ordung’s objection to Plaintiff’s blocking the Right of Way, between September 14, 2001 and sometime in October 2001 there was an ongoing conversation between Robert Ordung, Plaintiff and Plaintiff’s attorney relative to Defendants’ rights to use the Right of Way to access Defendants’ Property. Plaintiff did not raise the issue of Defendants’ right to park on the Disputed Area at any point during this ongoing conversation about Defendants’ rights in the Right of Way.

Indeed, Plaintiff’s subsequent communications with Defendants show that she was objecting to use of the Right of Way in general and not to parking in the Disputed Area. Plaintiff and Robert Ordung spoke briefly about the resealing incident on September 14, 2001, and parking was not discussed. Likewise, in Plaintiff’s letter of the following day, September 15, to Defendants, Plaintiff asserted her belief that Defendants did not have any rights at all to the Right of Way. Furthermore, her attorney’s letter to Defendants dated September 28, 2001, addresses Defendants’ claim “regarding access or egress on Barnes Court” and made no reference to parking. Finally, on or around October 2001, Plaintiff and Robert Ordung had another conversation regarding Defendants’ general rights in regards to the Right of Way, where Plaintiff apologized for the September 14 blockade. Again, parking was not discussed. As a result, the evidence, including Plaintiff’s blocking of the Right of Way for resealing and the ensuing communications between the parties, does not support the conclusion that any of these events interrupted the statutory twenty year period for Defendants’ claim of prescriptive parking rights.

Plaintiff did not object to Defendants’ parking on the Disputed Area until her letter of June 1, 2005. [Note 15] Shortly thereafter, Plaintiff placed boulders on Disputed Area A, parked her own car on Disputed Area A for approximately three weeks, and made several complaints to the Police Department regarding Defendants’ parking on the Disputed Area. At this time, however, Defendants’ twenty years period of use for parking had already accrued.

Plaintiff further argues that Defendants’ parking was not continuous, as the evidence indicates that during the winter months, Defendants did not use the Disputed Area for parking as much as other months. “Continuous use,” however, “does not necessarily mean ‘constant use.’” Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). Additionally, “[m]ere intermission is not interruption.” Id. The evidence, moreover, indicates that parking in the winter was, at most, only blocked for several days a year by snow.

There appears to be an issue, however, with respect to the whether Defendants use of Disputed Area B was continuous. The evidence indicates that, between 1984 and 1999, Defendants held large gatherings approximately three times per year and, during these gatherings, visitors would park wherever they could, including on Disputed Area B. Otherwise, the testimony regarding parking on the Disputed Area related only to parking on Disputed Area A. As such, it appears that Defendants, or their guests, only parked on Disputed Area B approximately three days per year for fifteen consecutive years. As such, I find that Defendants have not shown twenty years of using Disputed Area B for parking.

Thus the evidence in the case at bar establishes that Defendants continually, without interruption by Plaintiff, used and enjoyed Disputed Area A to park from July 1984 until June 2005, a period of more than twenty years. Such parking was done primarily on a daily basis, by Defendants, their guests, and their children. Moreover, Plaintiff did not attempt to stop Defendants from parking on Disputed Area A until 2005. As a result, I find that Defendants have established twenty years of continuous parking on Disputed Area A.

B. Actual Use

In order to establish title by adverse possession and prescriptive rights, there must be proof of actual possession or use. “[T]he nature and extent of occupancy required to establish a right by adverse possession vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938). In order to establish an easement by prescription, the claimant’s use must be “substantially confined to a regular or specific [location].” Boothroyd, 68 Mass. App. Ct. at 45.

Defendants claim that they have used the Disputed Area to park vehicles since they moved into Defendants’ Property in July 1984. Adrienne Ordung, Paul D’Alessandro, Robert Ordung and Maribeth Kelly all testified to their regular use of Disputed Area A for parking, and Daunne Miller’s testimony of her observations of the Disputed Area and Defendants’ Property between 1985 and 2002 supports the claim that such parking on Disputed Area A did occur. Moreover, unlike Boothroyd, where the location of the path at issue changed over the twenty period, there is no evidence in the case at bar that the location of Disputed Area A changed between 1984 and 2005. As a result, I find that Defendants have shown twenty years of actual use of Disputed Area A.

C. Open and Notorious

Since both Defendants and Plaintiff have an interest in the Right of Way, there is an issue as to what type of use constitutes open and notorious use. “The elements of ‘open and notorious’ use . . . are descriptive of the adverse possessor’s acts of possession and use.” Lawrence v. Town of Concord, 439 Mass. 416 , 422 (2003). Since both parties have a right to be on the Right of Way, Plaintiff contends that Defendants must have provided her with actual notice of their adverse use. The SJC stated that “[w]here a special relationship exists the putative adverse possessor is required to give actual notice to the true owner of the change in status from permissive to adverse.” Lawrence, 439 Mass at 424 (citing Restatement of Property § 458, cmt. j (1944)). Essentially, Plaintiff argues that because Defendants have a right to use the Right of Way as the dominant estate owners, their actions in asserting their claim of ownership must be of such notoriety as to put the servient estate owner (Plaintiff) on notice of the rights they are claiming in the Disputed Area; mere occupation of the Disputed Area is not enough.

The evidence indicates that Defendants, their guests, and children, continuously and exclusively parked on the Disputed Area for more than twenty years. As discussed, supra, such use is inconsistent with the right of access to which Defendants had deeded rights. Moreover, parking cars on the Disputed Area was an overburdening of the Right of Way, as only the paved portion was used for access. For Defendants, parking on the Disputed Area excluded access by Plaintiff to the Disputed Area. Such actions are sufficient notice to Plaintiff, and her predecessor, that Defendants were claiming more rights than Defendants’ Deed granted, as Defendants’ Deed did not grant the right to park on the Right of Way. Therefore, Defendants’ actions were adverse to Plaintiff’s rights, as the servient estate owner, and sufficiently open and notorious to put Plaintiff on notice to take action to protect the use of the Right of Way for parking, which she did only after the twenty year period had accrued. [Note 16]

With respect to Defendants’ claim for adverse possession, however, Defendants’ use of Disputed Area A for parking was not sufficiently open and notorious to alert Plaintiff, or her predecessor, that her ownership of Disputed Area A was in jeopardy. There is a difference between acquiring a prescriptive right to park on Disputed Area A and acquiring the fee in Disputed Area A. With respect to the prescriptive right to park, Defendants’ actions notified Plaintiff, and her predecessor, that Defendants were claiming a single right, the right to park, that they did not legally have pursuant to Defendants’ Deed. With the claim of adverse possession, Defendants are claiming that because they parked on a regular basis on Disputed Area A for twenty years, they now get to use Disputed Area A for all purposes that the true owner could use it. Defendants’ use of Disputed Area A was not sufficient to alert Plaintiff, or her predecessor, that Defendants were claiming fee title to Disputed Area A.

As a result of the foregoing, I find that Defendants’ use of Disputed Area A was open and notorious for the purpose of establishing a prescriptive right to park on Disputed Area A, but not sufficiently open and notorious for the purpose of establishing title to Disputed Area A by adverse possession. [Note 17] As such, I find that Defendants have established a prescriptive right to park on Disputed Area A. [Note 18] The parties shall prepare and record a plan to define the boundaries of Disputed Area A, consistent with the plan attached to this Decision as Exhibit 1.

Trespass

Plaintiff alleges that Defendants have trespassed on Plaintiff’s Property by parking on the Disputed Area. Pursuant to G. L. c. 185, § 1(o), the Land Court has exclusive jurisdiction over “[c]ivil actions of trespass to real estate involving title to real estate.” Because the case at bar involves a dispute as to both title and rights in the Disputed Area, this court has jurisdiction to hear the trespass claim.

“A trespass . . . requires an unprivileged, intentional intrusion on the land of another.” Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F. Supp. 93, 99 (D. Mass. 1990) (citing New England Box Co. v. C&R Const. Co., 313 Mass. 696 , 707, 49 N.E.2d 121 (1943)). “A trespass requires an affirmative voluntary act upon the part of a wrongdoer.” United Electric Light Co. v. Deliso Const. Co., 315 Mass. 313 , 318 (1943). Damages are not an essential element of trespass. See Old Colony Donuts, Inc. v. American Broadcasting Companies, Inc., 368 F. Supp. 785, 789 (D. Mass. 1974) (citations omitted).

In the case at bar, I have found that Defendants have proved their prescriptive rights claim with respect to parking on Disputed Area A. Therefore, I find that Defendants’ use of Disputed Area A for parking is not a trespass.

However, though the evidence establishes that Defendants have occasionally parked on Disputed Area B, such evidence did not establish prescriptive rights in Disputed Area B. There was testimony that Defendants used Disputed Area B when they had larger gatherings and parties. It does not appear that such incidents have caused Plaintiff pecuniary damage or significant inconvenience. As a result of the foregoing, Defendants shall be enjoined in the future from parking on Disputed Area B and the Right of Way beyond Disputed Area A to which they are granted prescriptive rights, as discussed, supra. I find no basis, however, for awarding damages to the Plaintiff for any past parking on Disputed Area B.

Judgment to issue accordingly.

Alexander H. Sands, III

Justice

Dated: July 15, 2008