ROGER L. BERMAN and ANNE BAILEY BERMAN v. RUTH E. JOHNSON, individually and as executrix of the ESTATE OF ELSIE NELSON, PETER T. TOLAND, LILLIAN J. LAROSA, WILLIAM M. JOHNSON, PHILIP NELSON, MATTHEW JOHNSON, MARK JOHNSON, ROBERT JOHNSON, CITY OF WOBURN, and THE COMMONWEALTH OF MASSACHUSETTS

Introduction

Plaintiffs Roger and Ann Berman, owners of the property at 102 Pond Street in Winchester, [Note 1] seek to register their title to that property in this proceeding. Notice was duly given to its abutters and all other persons identified as having a potential interest in the property or its boundaries. The court-appointed title examiner has reviewed and affirmed the Bermans’ title, [Note 2] and no one has challenged his conclusions. The Commonwealth initially “object[ed] to any elimination of the rights of the public in any cart paths, woods roads, or any other access rights of the public,” [Note 3] but subsequently withdrew all of its objections. The City of Woburn, which at one time had tax title to an adjoining parcel, similarly withdrew all of its objections. [Note 4] The southern abutters have raised no objections.

The sole issues in dispute, raised by the western/northwestern abutter (the Johnson and Nelson defendants – hereinafter, the “Johnsons”) [Note 5] and the eastern abutter (defendants Peter Toland and Lillian Larosa) (“the Tolands”) are the respective rights of the Bermans, the Johnsons, and the Tolands in the private way between the Toland and Berman properties that extends from Pond Street to the Johnsons’ property (the “disputed area,” “disputed way” or “way”). See Trial Ex. 1 (a portion of which is attached to this decision as Exhibit A) (the disputed area is identified as “Parcel B” and “Parcel C”). The Johnson, Toland and Berman properties were formerly in common ownership and an easement was reserved in the way, benefiting the Johnson parcel. Both the Berman and Toland deeds specifically state that their properties are bounded by the way. Thus, by the derelict fee statute, G.L. c. 183, § 58, the Bermans own the southern portion of the way up to its centerline (identified as “Parcel B” on Trial Ex. 1; Ex. A) and the Tolands own the northern portion of the way up to its centerline (identified as “Parcel C” on Trial Ex. 1; Ex. A). Unless otherwise extinguished, the Bermans and Tolands both have an easement over the entire length and width of the way as well. Id.; Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 437 (2006); Brennan v. Decosta, 24 Mass. App. Ct. 968 , 968 (1987).

The Bermans challenge this, contending that they own the fee interest not only in Parcel B, but also, by adverse possession, the fee in Parcel C. By virtue of their adverse acts, they also claim to have extinguished the Johnsons’ and Tolands’ easement rights over all portions of the way. They thus ask this court to register title to their property, encompassing Parcels A, B, and C, free and clear of all claims by the defendants. The Tolands and Johnsons dispute the extinguishment of their easement over Parcels B and C, and the Tolands further contend that the Bermans have failed to prove adverse possession of Parcel C.

A trial was held, jury-waived. Based upon the agreed facts contained in the parties’ pre-trial memorandum and stipulation (Trial Ex. 31), the testimony, exhibits and stipulations admitted into evidence at trial, the parties’ admissions in their post-trial memoranda, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the Bermans have failed to prove that they have adversely possessed Parcel C. As a result, the Bermans own the fee interest in Parcel B, the Tolands own the fee interest in Parcel C, and both parties have an easement to use the entire length and width of the way. In addition, I find and rule that Parcel C is subject to an easement benefiting the Johnson parcel at the end of the way. [Note 6] Based upon these findings, the Bermans’ petition for registration of Parcels A and B, subject to the Tolands’ easement over the entire length of the way, is ALLOWED. The Bermans’ petition for registration of Parcel C is DENIED.

Facts

Chain of Title

The Bermans’, Tolands’, and Johnsons’ properties and the disputed area were once part of a larger parcel held in common ownership. The history of the ownership of the parcels is as follows. In 1873, Annie Allen conveyed the larger parcel (approximately 17.75 acres) to Nathan Morse, Trustee for Annie M. Allen. Trial Ex. 31, Stipulation 4; Deed from Annie M. Allen to Nathan Morse (May 26, 1873), recorded in the Middlesex South Registry of Deeds in Book 1260, Page 616. [Note 7] On September 5, 1873, Mr. Morse (as trustee) conveyed what is now the Bermans’ property to Michael Blake. Trial Ex. 31, Stipulation 5; Deed from Nathan Morse to Michael Blake (Sept. 5, 1873), recorded in the Middlesex South Registry of Deeds in Book 1276, Page 461. That property is identified as “Lot 19” (now identified as Parcel A) and was described as being bounded by a passageway (Parcels B and C). Id. On October 8, 1873, Mr. Morse, as trustee, conveyed the remaining property [Note 8] back to Ms. Allen. Trial Ex. 31, Stipulation 6; Deed from Nathan Morse to Annie M. Allen (Oct. 8, 1873), recorded in the Middlesex South Registry of Deeds in Book 1283, Page 435. On October 29, 1873, Annie Allen conveyed what is now the Tolands’ property to August N. Clark. Trial Ex. 31, Stipulation 7; Deed from Annie M. Allen to Augustus N. Clark (Oct. 29, 1873), recorded in the Middlesex South Registry of Deeds in Book 1464, Page 69. The property was identified as “Lot 18” (the “Tolands’ lot” or “110 Pond Street”) and was described as being bounded by Spring Street (the passageway referred to in the deed of Lot 19 and now identified as Parcels B and C). In addition, the deed stated that it included “all the privileges and appurtenances to the premises belonging including the right to use said Spring St. in common with us[,] our heirs and assigns forever.” Id.

The remaining portion of the original property (the “back lot,” now owned by the Johnsons) was taken by the City of Woburn. Trial Ex. 31, Stipulation 8. The City of Woburn subsequently conveyed the back lot to Mr. Blake so he then owned both the back lot and Parcel A. Id.; Deed from City of Woburn to Henry C. Blake (July 2, 1912), recorded in the Middlesex South Registry of Deeds in Book 3690, Page 315. On March 15, 1919, Mr. Blake conveyed Parcel A to Fred and Louise Pauline. Trail Ex. 31, Stipulation 9; Deed from Henry C. Blake to Fred N. and Louise H. Pauline (March 15, 1919), recorded in the Middlesex South Registry of Deeds in Book 4245, Page 85. That deed also describes the property as being bounded by a passageway. Id. Mr. Blake also reserved to himself and his “heirs and assigns, a right of way over and through the passageway bounding said premises on the North. Said passageway to be forever kept open and to be used for all usual purposes for which public streets may be used.” Id.

Although subsequent deeds up to 1937 were not provided for Parcel A, the parties stipulated that they contained similar language with regards to the disputed area. Trial Ex. 31, Stipulation 11. In 1937, Alfred G. and Elsie M. Nelson acquired Parcel A. Trial Ex. 31, Stipulation 12; Deed from Thomas Sims to Alfred G. and Elsie M. Nelson (Oct. 15, 1937), recorded in the Middlesex South Registry of Deeds in Book 6163, Page 396. Again, the Nelsons’ deed referred to the passageway. In 1946, the Nelsons also acquired the back lot. Id.; Deed from Elisabeth F. Blake to Alfred G. Nelson and Elsie M. Nelson (Aug. 16, 1946), recorded in the Middlesex South Registry of Deeds in Book 7034, Page 482. The Bermans acquired Parcel A from the Nelsons in 1982. Trial Ex. 31, Stipulation 13; Deed from Alfred A. Nelson and Elsie M. Nelson to Roger L. Berman and Anne Bailey (Jan. 18, 1982), recorded in the Middlesex South Registry of Deeds in Book 14516, Page 405. The Bermans’ deed also states that it is bounded by the passageway. Although the Nelsons retained the back lot, it does not appear from the deed to the Bermans that the Nelsons retained an easement to access the back lot over Parcel B. [Note 9] In 1992, the Johnsons inherited their interest in the back lot from Elsie Nelson. Answer of Ruth E. Johnson (filed March 7, 2003).

Similarly, not all of the deeds for the Tolands’ lot were provided. In 1971, William and Vivian Green purchased 110 Pond Street from Robert and Marjorie Scott. Trial Ex. 61, Deed from Robert C. Scott and Marjorie D. Scott to William P. Green and Vivian B. Green (Nov. 24, 1971), recorded in the Middlesex South Registry of Deeds in Book 12116, Page 91. That deed states that 110 Pond Street is bounded by “a private street or passageway.” Id. The Tolands purchased their property from the Greens in 1995. Their deed also states that it is bounded by a “private street or passageway.” Deed from William P. Green and Vivian B. Green to Lillian J. LaRosa and Peter T. Toland (Sept. 28, 1995), recorded in the Middlesex South Registry of Deeds in Book 25690, Page 255.

Use of the Disputed Way

Although it is clear that the Bermans’ title does not expressly include the disputed way, the Bermans contend that they nevertheless own the fee interest in Parcels B and C by virtue of the derelict fee statute, G.L. c. 183, § 58, (Parcel B) and by adverse possession (Parcel B and C). The evidence submitted at trial, as more fully described below, shows the following uses of the disputed way. The Bermans and their predecessors (the Nelsons) maintained portions of the way. Specifically, Mr. Nelson mowed the lawn up to what is identified as the “grass line” on trial exhibit 1. [Note 10] See Ex. A (indicating the “grass line”). After purchasing the property from the Nelsons, the Bermans or their landscaper continued to mow the lawn up to the grass line. Peter Wild, an arborist, testified that the grass line was due to a difference in the health of the grass, indicating that the grass in Parcel B and the portion of Parcel C up to the grass line was fertilized; the grass in Parcel C closer to the Tolands’ lot was not. The Tolands also have maintained the disputed area and have mowed Parcel C since they purchased their property. Both parties testified to clearing out portions of the way, removing debris from the way, and generally maintaining the disputed area.

There was testimony at trial that suggests that various people, largely neighborhood children, have walked over the way to get to the mountain and trails behind the Berman and Toland properties. [Note 11] Specifically, Ruth Johnson (Mr. Nelson’s daughter) and Kathy Lawton (a neighbor across the street) testified that children would play in the right-of-way and people would walk along the way with their dogs. [Note 12] Ms. Lawton and the Bermans also testified that the Bermans’ children would play in the way. Likewise, the Tolands testified that they would walk along the way with their daughter and dog to gain access to the mountain and would also use the way for sledding in the winter. [Note 13] The Bermans also testified that they throw a Kentucky Derby party each year and during that event, their approximately 200 to 250 guests mingle on both their property and the disputed area.

On Parcel B, there are several rock walls and a barbeque pit. As the Bermans’ expert witness (their surveyor, Thomas M. Killion, who prepared Trial Ex. 1) described, some of the stone walls are flush with the ground. Mr. Berman testified that they rarely used the barbeque pit and only used it when they first moved to their property. Furthermore, the testimony was clear that the presence of the stone walls and barbeque pit did not inhibit people from walking along the way. Parcel B also contains what the Bermans have characterized as a “snow fence.” As depicted in photographic evidence, the snow fence is a wooden fence located near the Bermans’ home. [Note 14] The Bermans installed this fence after their dog bit one of Ms. Green’s children. However, Ms. Green refused to allow the Bermans to install a more permanent fence that would have completely fenced off the Bermans’ property from the Tolands’ property. As the photographs show, the fence does not cross the entire disputed area, appears to be partially falling down, and does not inhibit people from walking along the way. See Trial Exs. 7-8, 10.

In addition to the stone walls, barbeque pit and the snow fence, there are several plantings in the way. The Bermans’ expert, Mr. Wild, testified that the trees and bushes were planted within the way (as opposed to growing naturally). Mr. Wild testified that the trees were planted over fifty years ago and some of the bushes were planted over twenty-five years ago. Mr. Berman and Colin Boland testified that they have trimmed these trees since the Bermans purchased the property. There was, however, no evidence whatsoever as to who planted the trees and bushes and for what purpose.

Other pertinent facts are included in the analysis section below.

Analysis

The Bermans and Tolands Own the Underlying Fee up to the Centerline of the Disputed Way Pursuant to the Derelict Fee Statute

The derelict fee statute, G.L. c. 183, § 58, states, in relevant part, that

[e]very instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, . . . (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns . . .

This statute “establishes an authoritative rule of construction for all instruments passing title to real estate abutting a way, whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated).” Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242 (1992) (internal citations omitted). It “mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way – to the centerline if the grantor retains property on the other side of the way or for the full width if he does not . . .” Id. Section 58 also “carries with it the right to use the way along its entire length.” Brennan, 24 Mass. App. Ct. at 968.

Parcel A was conveyed out of the original, larger parcel by Mr. Morse to Mr. Blake in September 1873. Since this parcel was described as being bounded by the passageway and since the grantor, Mr. Morse, retained the property on the other side of the passageway, Mr. Blake owned the underlying fee of the passageway to the centerline (Parcel B). Mr. Blake also acquired an easement to use the entire passageway. Likewise, when Mr. and Mrs. Allen conveyed the Tolands’ lot to Mr. Clark, Mr. Clark acquired the underlying fee of the passageway to the centerline (Parcel C) with an easement to use the entire passageway. When the Bermans’ and Tolands’ properties were subsequently conveyed, the owners transferred with those lots their respective underlying fee interests and easements in the passageway. As a result, the Bermans now own the fee interest in the southern portion of the passageway to the centerline, the parcel they have identified as “Parcel B” on the Site Plan of Land. See Trial Ex. 1; Ex. A. The Tolands own the underlying fee in the northern portion of the passageway to the centerline, the parcel the Bermans identified as “Parcel C” on that same site plan. Id. Both the Bermans and the Tolands have an easement over the entire way as well. Lane, 65 Mass. App. Ct. at 437; Brennan, 24 Mass. App. Ct. at 968.

The Bermans Failed to Sustain their Burden of Proving Adverse Possession of Parcel C

Although the Bermans concede that the Tolands own Parcel C based upon the derelict fee statute, Trial Ex. 31, Stipulation 14, they claim that they have since acquired title to that portion of the way by adverse possession. “Title 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. Stavros, 348 Mass. 251 , 262 (1964) (citations omitted); see also Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993). “The burden of proving adverse possession is on the person claiming title thereby and ‘extends to all of the necessary elements of such possession.’” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); see also Gadreault v. Hillman, 317 Mass. 656 , 661 (1945); MacDonald, 35 Mass. App. Ct. at 903. “If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004) (hereinafter “Sea Pines”). “The acts of the wrong doer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof.” Cook v. Babcock, 65 Mass. 206 , 210 (1853). Whether the claimant has met his or her burden is a question of fact. Kershaw, 342 Mass. at 320.

Overall, the test for adverse possession “is the degree of control exercised over the strip by the possessors.” Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). In determining whether the use and control over the land are sufficient to establish adverse possession, “[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” Ryan, 348 Mass. at 262 (quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938)); Kershaw, 342 Mass. at 320 (same). The acts that establish adverse possession cannot be “few, intermittent [or] equivocal.” Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992); Ryan, 348 Mass. at 262. Rather, they must be “so open and notorious that [they] may be presumed to have been known to the rightful owner,” Lawrence, 439 Mass. at 421, i.e., such that they place him on “constructive notice” that a claim of right is being asserted. Id. at 421 n.5, 422. Thus, the claimant must act “in a manner inconsistent with the true owner’s rights.” Id. at 421; see also Sea Pines, 61 Mass. App. Ct. at 847 (“The acts constituting adverse possession must be inconsistent with the owner’s rights; otherwise, they would not place the owner on notice of the competing claim of right.”).

The Bermans submitted evidence of both their and their predecessors’ use of the disputed area. However, much of the alleged adverse acts relate to Parcel B, which, as stated above, the Bermans own. For example, the Bermans point to the existence of stone walls, a flagstone path, a barbeque pit, and a fish pond with its related water pipes as evidence of their adverse use of the way. However, as indicated on their site plan, all of these structures are located in Parcel B. Trial Ex. 1; Ex. A. Therefore, these uses, even if they could be described as acts sufficient to prove adverse possession, do not in any way show that the Bermans have adversely possessed Parcel C. To do so, the Bermans must submit proof that they have openly, notoriously, exclusively and adversely used Parcel C. In addition, since Parcel C is “land lying within the bounds of an established way,” the Bermans must “prove occupation of the land [is] irreconcilable with its use as a way . . .” in order to establish title by adverse possession to Parcel C, free of the Tolands’ easement over the way. Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 347 (2004); see also Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 969 (1987). [Note 15] This they have not done.

First, the Bermans attempt to tack on the “adverse use” of their predecessors. The evidence submitted regarding the Nelsons’ use of the way, however, does not necessarily suggest that they used it adversely. Kathy Lawton, who resides at 100 Pond Street, testified that she observed Mr. Nelson mowing the grass in the disputed area up to the “grass line,” as indicated on trial exhibit 1. See Ex. A (indicating the “grass line”). She also testified that Mr. Nelson would prune trees in the disputed area, rake leaves, mulch, and generally maintain the disputed area. Ruth Johnson, Mr. Nelson’s daughter, similarly testified in her deposition that her father would mow the lawn and maintain the area. [Note 16] However, she testified that she did not recall him raking leaves in the area. Vivian Green, the Tolands’ predecessor in title, testified that Mr. Nelson indicated that the disputed area was a paper street and told her that he maintained it because it was adjacent to his property and he wanted to keep it looking nice. In response, Ms. Green told Mr. Nelson that she did not object to him maintaining that area.

Even accepting that these general maintenance activities occurred in Parcel C, Ms. Green’s testimony indicates that Mr. Nelson maintained the area with Ms. Green’s permission. At the very least, Ms. Green’s testimony defeats the Bermans’ contention that Mr. Nelson adversely used the way. Rather, Mr. Nelson openly acknowledged that it was a way and maintained it for appearance since it abutted his property. He also had a “duty of reasonable care” to maintain the private way for “persons lawfully on [his] property.” [Note 17] Marsden v. Eastern Gas & Fuel Associates, 7 Mass. App. Ct. 27 , 29 (1979) (holding that the “person in control of [a private] way” owes “a duty of reasonable care” to “persons lawfully on [his] property”). In any event, mowing the lawn on Parcel C is not “irreconcilable with its use as a way.” Brennan, 24 Mass. App. Ct. at 969 (“To establish acquisition through adverse possession of a fee unencumbered by an easement in the disputed portion of [the paper street], the [claimants] were bound to prove occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely, and without interruption for more than twenty years.” Indeed, in Brennan, the court found that, despite trees located in the way, “there was no obstacle to proceeding by motor vehicle” along the way.). Although it is unlikely that a regular motor vehicle could pass over the disputed area, ways can also be used for pedestrian, bicycle, and all-terrain-vehicle traffic. Here, there was evidence of pedestrian and bicycle traffic and the Nelsons’ use of the way (mowing the lawn and maintaining it in general) is not irreconcilable with any of these three types of uses. Accordingly, the Nelsons’ maintenance of the way was not adverse and cannot be used for the purposes of tacking.

The Bermans place great emphasis on the trees that were planted in the way and offered expert testimony from Peter Wild, an arborist. Mr. Wild’s testimony confirmed that the trees in the way were not naturally occurring and were planted by someone, likely more than fifty years ago. However, there was absolutely no evidence at trial as to who actually planted the trees, when he or she planted them, or why he or she planted them in the way. The Bermans suggest that an inference can be made that Mr. Nelson planted the trees in the way because he planted trees in the back lot. However, Ms. Johnson specifically testified in her deposition that although her father planted trees in the back lot, she did not recall her father planting any trees in the way. Trial Ex. 64, Vol. 1-18, 1-55, 1-56. Rather, she recalled that the trees in the front portion of the way were always there. Id. at 1-55. This evidence certainly falls well short of proving that the Nelsons planted the trees in the way in a manner to put the world on notice that they were claiming ownership of the way. In addition, as stated above, the presence of the trees in the way is not irreconcilable with the use of the way. Brennan, 24 Mass. App. Ct. at 969. I therefore find that the Bermans have not submitted sufficient evidence that their predecessors in interest adversely used the way and, therefore, decline to tack on their use of the way for purposes of establishing the Bermans’ case of adverse possession.

As a result, the Bermans must rely on their own use of Parcel C in order to prove adverse possession. The evidence submitted at trial regarding the Bermans’ use of Parcel C is as follows. Ms. Lawton testified that she observed the Bermans’ children playing in the way. [Note 18] Numerous witnesses also testified that the Bermans held a Kentucky Derby party once a year. At the party, guests used the Bermans’ backyard and often went in the disputed area as well. However, Ms. Lawton testified that all of the tents and facilities for those parties were set up on either the Bermans’ parcel or Parcel B.

Colin Boland, the Bermans’ landscaper, testified that he has mowed the lawn, trimmed bushes and trees, and generally maintained the Bermans’ property and the disputed area since he began work in 1992. However, he testified that he has never planted any trees or bushes in the disputed area. Prior to retaining Mr. Boland’s services, Mr. Berman mowed the lawn and maintained the property. He testified that he would mow to the “grass line” as indicated on trial exhibit 1. See Ex. A (indicating the “grass line”). In addition, Mr. Berman testified that when he and his wife purchased the property in 1982, he had to do a lot of work in what he identified as a “shrub garden” to clean out weeds. [Note 19] Trial Transcript, Day One, at 190 (Oct. 21, 2005). Based on this testimony, it is clear that the Bermans mowed portions of Parcel C and performed other maintenance and gardening activities from time to time.

However, there also was testimony that the Tolands mow and maintain Parcel C as well. Mr. Toland testified that he started to maintain the area in 1996. When the Tolands purchased the property, Mr. Toland testified that he had to clean up and clear both his backyard and portions of Parcel C. Specifically, he stated that he cleared out debris from the back and frequently used the way to carry the material out of the property. He also hired a landscaper to haul out a large pile of grass clippings from disputed area and Mr. Toland removed what he described as wild grapevines in order to clear a path through the trees in the way. In addition to clearing a path, Mr. Toland testified that he had to clear out branches and other growth from the “shrub garden” since it was “just a bunch of scrub” and never looked like a garden since he moved to the property in 1995. Trial Transcript, Day 2 at 114-15 (Oct. 24, 2005). Mr. Toland further testified that since 1996 he mowed the lawn, usually to the centerline of the disputed area, but occasionally beyond that line. [Note 20] This testimony was corroborated by Mr. Berman, who testified that the Tolands mowed the lawn occasionally during a two-year period, resulting in a “mohawk” effect. Trial Transcript, Day 1 at 252. Finally, Mr. Toland testified that he did not see anyone maintain the disputed area other than someone mowing the lawn until 2001 (the time both parties identified as when the dispute over the way erupted) when he noticed that some of the trees were being trimmed.

Based upon the evidence submitted, the Bermans have failed to prove all of the elements of adverse possession. Most importantly, they cannot establish the requisite twenty year period of exclusive use of Parcel C. The Bermans purchased their property in 1982; the Tolands purchased their property in 1995 and stated that they began to maintain Parcel C in 1996. Accordingly, credible evidence was submitted that both the Bermans and Tolands maintained Parcel C beginning in 1996. As a result, the Bermans can only establish an arguably exclusive use of Parcel C for fourteen years.

Moreover, as previously noted, the Bermans have not established that their use was sufficiently adverse to put the Tolands and the Tolands’ predecessors on notice that the Bermans claimed ownership to Parcel C. As stated above, the majority of the Bermans’ uses of Parcel C involved mowing the lawn, occasionally trimming the trees, and walking or playing on it. These uses of Parcel C are insufficient to constitute actual use, control and dominion over it. See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (finding that the placement of a picnic table, lounge chairs, swing, sandbox, and clotheslines on the disputed area (all removed or temporary), the construction of a henhouse, holding family picnics on the disputed area, and mowing a small area of the disputed parcel were not sufficient to establish adverse possession). As the court in Peck noted, although some cases have found adverse possession based upon the mowing of a lawn and general maintenance, most of these cases involved adverse uses in addition to the maintenance of a lawn that were sufficient to establish adverse possession. See Kershaw v. Zecchini, 342 Mass. 318 , 319-20 (1961) (this case, cited by the Bermans, included the adverse acts of clearing brush, cutting down trees, placing bound pipes at the corners of the lot, and the payment of back taxes); Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996) (adverse uses included the maintenance of the lawn, a privet hedge and a railroad-tie retaining wall); Shaw v. Solari, 8 Mass. App. Ct. 151 , 153, 157 (1979) (adverse acts in addition to the suburban lawn included clearing the land, parking, installing chicken coops, and the installation of a fence); Jones v. Gingras, 3 Mass. App. Ct. 393 , 398 (1975) (this case, also cited by the Bermans, also included adverse acts such as planting and maintaining a vegetable garden, planting blueberry bushes, and digging ditches to prevent flooding). Here, the Bermans’ acts beyond maintenance occurred on Parcel B (the stone walls, fence, barbeque pit, and flagstone path). As a result, the Bermans have failed to sustain their burden of proving all of the elements of adverse possession for Parcel C. Instead, they merely retain an easement over Parcel C to use it as a way.

The Bermans have Failed to Prove Extinguishment of the Tolands’ Easement over the Way

Not only have the Bermans failed to establish adverse possession of Parcel C, but they have also failed to prove that they have extinguished the Tolands’ easement over the entire way. Again, “[t]o establish acquisition through adverse possession of a fee unencumbered by an easement in the disputed portion of [the way], the [claimants are] bound to prove occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely, and without interruption for more than twenty years.” Brennan, 24 Mass. App. Ct. at 969 (citing Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422-24 (1979)). As stated above, maintaining the lawn and occasionally trimming trees on Parcel C are not uses that are “irreconcilable” with the use of the property as a way. Indeed, they actually would aid in keeping the way open for pedestrian traffic. See Zora Enterprises, Inc., 61 Mass. App. Ct. at 348. Although the stone walls and barbeque on Parcel B pit may prevent ordinary vehicular traffic, they do not impede pedestrian, bicycle, and certain types of all-terrain-vehicle traffic. Since the Bermans’ uses of Parcels B and C are not irreconcilable with use of the disputed area as a way and since the Bermans have failed to establish that they have adversely used the way for twenty years, the Tolands’ easement over the entire length of the way is still valid and in effect. See Brennan, 24 Mass. App. Ct. at 969 (where the court found no extinguishment of an easement by adverse possession of a way despite the location of trees in the way and finding that a car could drive between the trees); Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 347-48 (2004) (“If the adverse claimant . . . already has a nonexclusive right to use the way, that use cannot be ‘irreconcilable’ with use of the property as a way.” The court further found that constructing the way, installing utilities, and general upkeep did not amount to adverse possession since such uses were consistent with others using it as a way.); Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 423 (1979) (The court held that the presence of gates at both ends of the way were not irreconcilable with vehicular and pedestrian traffic. At most, the court held that there was a partial extinguishment of the easement due to the presence of permanent loading platforms, stairways, and entries within the way.).

Parcel C is Subject to the Johnsons’ Easement of Record

As stated in the facts section above, when the Allens conveyed the Tolands’ lot to Mr. Clark, the deed stated that the property was bounded by Spring Street (the disputed way) and that the conveyance included “all the privileges and appurtenances to the premises belonging including the right to use said Spring St. in common with us[,] our heirs and assigns forever.” [Note 21] Deed from Annie M. and Stephen Allen to August N. Clark (Oct. 29, 1873). Similarly, when Mr. Blake conveyed Parcel A to the Paulines, he reserved to himself and his “heirs and assigns, a right of way over and through the passageway bounding said premises on the North. Said passageway to be forever kept open and to be used for all usual purposes for which public streets may be used.” Deed from Henry C. Blake to Fred N. and Louise H. Pauline (March 15, 1919) (Mr. Blake retained ownership of the back lot). However, in 1946, the Nelsons owned both Parcel A and the back lot. As a result, the easement over the Bermans’ portion of the way (Parcel B) was extinguished by the doctrine of merger. Cheever v. Graves, 32 Mass. App. Ct. 601 , 606 (1992); Trial Ex. 31, Stipulation 12. When Mr. Nelson conveyed Parcel A to the Bermans, he did not resurrect the easement language in the deed. Parcel B is thus free from any easement benefiting the back lot. Cheever, 32 Mass. App. Ct. at 607 (“Once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. For the easement to arise again, it must be created anew by express grant, by reservation or by implication.”).

To date, the way has only been used for pedestrian and bicycle traffic and Parcel C is wide enough to accommodate such uses. In addition, fourteen feet should be sufficient width for vehicle traffic as well. Since Parcel C can accommodate all uses of a way, the Nelsons and their heirs (including the Johnsons) do not have an easement by necessity over Parcel B. As a result, there is only an easement benefiting the back lot over the Tolands’ portion of the way (Parcel C). [Note 22]

Conclusion

For the foregoing reasons, I find and rule that the Bermans hold good title to Parcels A and B. In addition the Bermans and the Tolands have an easement to use the entire width and length of the way. Finally, Parcel C is encumbered by an easement for the benefit of the back lot (the Johnson property). Accordingly, the Bermans’ petition for registration of title to Parcels A and B and for an easement over Parcel C is ALLOWED, subject to the Tolands’ easement rights in Parcels B and C and the Johnsons’ easement rights in Parcel C. A decree shall be entered for such title, subject to such matters as may appear in the pleadings or the abstract that were not in issue here. The Bermans’ petition to register fee title to Parcel C is DENIED.

SO ORDERED.

Keith C. Long, Justice

Dated: 7 October 2008