MARY ZATTA, ROBSON ZATTA, MICHAEL TARMEY, JR., JOHN P. TARMEY, ZHAOHUI WANG, JACK FLYNN, BRENDA FLYNN, ADA WONG, CLAIRE RANIERI and FELICE RANIERI v. EUGENE ARGIRO, and THE COMMONWEALTH OF MASSACHUSETTS, DEPARTMENT OF CONSERVATION AND RECREATION, by and through its commissioner STEPHEN H. BURRINGTON

Introduction

The plaintiffs are homeowners in Stoneham. Their lots abut a paved roadway that they and their predecessors have used for at least thirty years. At issue in this case is the status of that road. Nearly all of the road, starting with its intersection with South Street at its western end, is on Commonwealth parkland, administered by the Department of Conservation and Recreation (“DCR”). The remaining portion, at the eastern end where the roadway intersects with Pond Street, cuts through a lot owned by defendant Eugene Argiro.

The plaintiffs claim rights in the road under the following theories:

(1) adverse possession of the portion that crosses Mr. Argiro’s lot;

(2) an easement by prescription over the entirety of the roadway, both the portion on the Commonwealth’s parkland and the portion on Mr. Argiro’s property;

(3) an easement by necessity over the entirety of the roadway;

(4) an easement by estoppel over the entirety of the roadway;

(5) an “easement by deed”, benefiting plaintiff Michael Tarmey, over the entirety of the roadway; [Note 1]

(6) ownership in the abutting landowners (plaintiffs Flynn, Wang, Tarmey, Wong and Zatta) to the centerline of the roadway pursuant to G.L. c. 183, § 58 (the “derelict fee” statute), (all of the land so claimed is part of the Commonwealth’s parkland);

(7) an easement by implication over the entirety of the roadway; and

(8) a “public way by prescription” over the entirety of the roadway.

Plaintiffs’ First Amended Complaint for Declaratory Judgment and Injunctive Relief (May 18, 2007). The defendants dispute each of these claims. All parties have moved for summary judgment.

As more fully set forth below, the plaintiffs’ motion for summary judgment is DENIED and the defendants’ motions for summary judgment are ALLOWED. The plaintiffs do not have a right, title or interest in any part of the roadway, the roadway has not become “public” by prescription, and the plaintiffs’ use of the road is subject to the permission of the owner of the portions they seek to use. [Note 2]

The Summary Judgment Standard

This case is before me on cross motions for summary judgment. Summary judgment is appropriate when, after reviewing the record taken as a whole, “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party may also obtain summary judgment by demonstrating that the party opposing the motion has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991); Flesner v. Tech. Commc’n Corp., 410 Mass. 805 , 809 (1991).

In assessing the appropriateness of summary judgment, the court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Att’y Gen. v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). It “only determine[s] whether a genuine issue of material fact exists.” Id. (citation omitted). All facts genuinely in dispute and all reasonable inferences from both disputed and undisputed facts must be viewed in the light most favorable to the non-moving party. Id. at 371. However, those facts and inferences must be supported in the record by admissible evidence. Mass. R. Civ. P. 56(e). When a properly supported summary judgment motion has been made, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass. R. Civ. P. 56(e) (emphasis added); see also Land Court Rule 4; Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 950 (1983) (“Summary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving party’s affidavits is not a minor error.”).

The facts set forth below are either undisputed or, if disputed and properly supported by admissible evidence, stated most favorably to the plaintiffs.

Facts

The plaintiffs and defendant Argiro are neighboring property owners in a small subdivision near the corner of South and Pond Streets in Stoneham. The Commonwealth owns the land immediately to the south of the subdivision (the land between the subdivision and South Street), which it maintains (through the DCR) as a park. [Note 3] A plan of the relevant portion of the subdivision that shows the properties in question is attached as Exhibit 2. Mr. Argiro owns Lot 13 and the additional triangle of land towards Pond Street (52 South Street on the tax assessor’s records). See Ex. 2. Plaintiffs Jack and Brenda Flynn own Lot 14 (50 South Street), plaintiff Zhaohui Wang owns Lot 15 (48 South Street), plaintiff Michael Tarmey owns Lot 16 (46 South Street), plaintiff Ada Wong owns Lot 17 (44 South Street), plaintiffs Mary and Robson Zatta own Lot 18 (42 South Street), and plaintiffs Claire and Felice Ranieri own Lot 19 (40 South Street). Id. Each of these lots has access to Lucy Street, the road around which the subdivision was built. Lots 13, 14, 15, 16, and 17 front on Lucy Street. Lots 17, 18, 19 and 20 have “the benefit of [a] right of way Twenty-Four (24) feet wide leading from Lucy Street across the Southwesterly side of Lots #21 and #22, as shown on said plan [Exhibit 3], to be used in common with owners of Lots #18, 19, 20, 21 and 22 for the purpose of a passageway and driveway, and which is to be kept forever open and unobstructed…” [Note 4] Deed from Josephine A. Scalisi to Felice P. Ranieri and Claire L. Ranieri (April 27, 2006), recorded at the Middlesex (South) Registry of Deeds in Book 47348, Page 385; see also Deed from Dorothy E. Trudell to Ada Wong (Sept. 15, 1983), recorded in Book 15219, Page 424 (similar language); and Deed from Jeanne M. Dunn and Gerald J. Plante, Jr. to Robson C. Zatta and Mary Cerasuolo Zatta (July 30, 1998), recorded in Book 28900, Page 564 (stating that it was conveyed “subject to and with the benefit of easements, restrictions and rights of way of record, if any there be, insofar as the same are now in force and applicable”).

The subdivision was created by Angelo Bordonaro, as trustee of the Angelo Bordonaro Realty Trust (the “Bordonaro trust”), on March 28, 1952 with the recording of its plan. [Note 5] Ex. 2. Simultaneously with that creation, a developer (Arthur Coggio) purchased Lots 3, 12-13, 16-25, 27-30 and all of Lucy Street. [Note 6] He also filed a plan of his own showing a “proposed service road” on the Commonwealth’s parkland. Ex. 3. Mr. Coggio neither owned nor had easement rights to the land on which the “proposed service road” was to be built, and his plan clearly showed that the road was on the Commonwealth’s parkland (the plan identifies it as Metropolitan District Commission (“MDC”) (now DCR) property). Ex. 3. Nonetheless, the current deeds to Lots 16 (now owned by plaintiff Tarmey) and 19 (now owned by the Ranieris) purport to grant a right “to use the proposed service road and Lucy Street, as shown on said plan [Exhibit 3] . . . .” Deed from Michael F. Tarmey, Sr. to Michael F. Tarmey, Jr. (Dec. 23, 2004), recorded at the Middlesex (South) Registry of Deeds in Book 44519, Page 485; Deed from Josephine A. Scalisi to Felice P. Ranieri and Claire L. Ranieri (April 27, 2006). Similarly, the current deed to Lot 13 purports to grant “any rights which [the grantors] may have to use the surface road of and upon the property of the Metropolitan District . . . as shown on [Exhibit 3]. The grantors, however, do no[t] represent that they have any such rights.” [Note 7] Deed from Theresa F. DiMattia to Eugene T. Argiro (Nov. 4, 2005), recorded in the Middlesex (South) Registry of Deeds in Book 46429, Page 134.

The roadway has existed since at least October 17, 1974 and is presently paved. [Note 8] Aff. of Brenda Flynn at ¶¶ 1-2 (May 7, 2007). It varies from the plan (Ex. 3) in one respect. The “proposed service road” as shown on the plan is entirely on the Commonwealth’s parkland. As actually constructed, however, the eastern end of the road leaves the parkland, cuts across a corner of Mr. Argiro’s property, and intersects with Pond Street via a curb cut.

The plaintiffs have each used the roadway continuously from the time they (or, in the case of the Flynns, their parents) purchased their properties. [Note 9] The earliest verified use thus dates back over thirty years. Each of the plaintiffs’ properties abuts the road and they drive along it and park their cars along its edge. They also have put mailboxes along the road (using South Street house numbers as their mailing addresses) and the postal service delivers their mail to those boxes. They do not, however, plow the road in the winter or participate at any time in its maintenance. All of those activities are conducted exclusively by the DCR, whose foresters also drive and park along the roadway. The DCR has installed a street sign (labeling the road “New South Street”) and stop signs. The road is a popular parking place for visitors to Spy Pond and the rest of the Middlesex Fells Reservation, and is used by walkers, joggers, and bicyclists. It is also used by motorists seeking a quick cut-through from Pond Street to I-93. Oil delivery trucks, cable television technicians, the home repair trades, an occasional police car, fire truck or ambulance, and even, on one occasion, a holiday-themed parade float, complete with a waving Santa, also use the roadway. It is convenient, but not essential, for any of these uses.

As previously noted, each of the plaintiffs’ homes has access to Lucy Road, either directly or via the twenty-four-foot-wide easement across Lots 21 and 22. See Ex. 3. There is nothing in the record to indicate that the loss of the roadway as a cut-through would in any way hamper the service level, efficiency or other operations of the nearby road network or intersections. The plaintiffs, several of whom have medical, mobility-related issues, assert that it would be significantly more difficult for them to get to the living areas of their homes if their sole access by car was by Lucy Road. [Note 10] Other pertinent facts are noted in the sections below.

Analysis

The Plaintiffs Have Not Acquired Ownership, by Adverse Possession, G.L. c. 183, § 58, or Otherwise, of Any Portion of the Roadway

To establish title by adverse possession to the land of another, the claimant must show an actual, adverse, open, notorious, exclusive and non-permissive use of that land that has been continuous and uninterrupted for a period of twenty years or more. G.L. 260, §§ 21, 22; Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Duff v. Leary, 146 Mass. 533 , 540 (1888); Senn v. W. Mass. Elec. Co., 18 Mass. App. Ct. 992 , 993 (1984). The burden of proof in an adverse possession case rests squarely on the claimant and “extends to all of the necessary elements of such possession.” Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) (emphasis added); see also Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). If the claimant is unable to prove each and every element, the claim of adverse possession fails. Mendonca, 354 Mass. at 326; see also Tinker v. Bessel, 213 Mass. 74 , 76 (1912); Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

“The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purpose for which the land is adapted, and the uses to which the land has been put.” LaChance v. First Nat’l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490 (1938). To succeed, the claimant must establish that he or she made changes upon the land that constitute “such a control and dominion over the premises as to be readily considered acts similar to those which are usually considered and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (quotations and citations omitted). Such acts of ownership must be sufficiently open and notorious to give “notice to all the world . . . of an adverse claim of title.” Phipps v. Behr, 224 Mass. 342 , 343 (1916). While the record owner’s actual knowledge of such use is not required, the claimant must show that the owner should have known of such use. Foot v. Bauman, 333 Mass. 214 , 218 (1955); see also Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44-45 (2007) (suggesting that the use must be “of a degree or character[] that would reasonably permit a trier of fact to infer that [it] could have been discovered by a reasonably diligent landowner”). Constructing buildings, installing fencing, paving, and other “permanent” changes to the land are generally recognized as sufficient acts of possession as long as they are non-permissive. See LaChance, 301 Mass. at 490-492. Acts of possession which are “few, intermittent and equivocal” are insufficient. Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992).

The key inquiry then is whether “the nature of the changes upon the property during a long course of years constituted notice to all the world of an adverse claim of title” or whether they were sufficient “to give either actual or constructive notice to the owner that an adverse claim to his land was being advanced and maintained.” LaChance, 301 Mass. at 491, 492. “From the standpoint of the true owner, the purpose of the various requirements of adverse possession – that the nonpermissive use by another be actual, open, notorious, exclusive and adverse – is to put him on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

Judged by this standard, it is indisputable that none of the plaintiffs has adversely possessed any of the roadway. None of them constructed it and there is nothing in the record to indicate that any of their predecessors constructed it. [Note 11] None maintains it or has ever maintained it. At most, they walk along it, drive along it, and occasionally park along the section immediately in front of their respective houses (all of these sections are on Commonwealth parkland). By their own admission, none of these activities is exclusive to them, which defeats their claim to adverse possession. In addition, by their own admission, all maintenance (chiefly snow-plowing in the winter) is done by the DCR. Thus, the roadway is indisputably part of the park. Adverse possession of parkland is prohibited by statute. G.L. c. 260, §31; Aaron v. Boston Redevelopment Auth., 66 Mass. App. Ct. 804 , 808 (2006). Finally, there is no evidence that any of the plaintiffs or their predecessors ever parked on the Argiro land or made any other assertion of ownership by action or word. Thus, their claim for adverse possession of the Argiro land fails as well.

The plaintiffs’ claim of ownership to the centerline of the roadway in front of their respective homes pursuant to the derelict fee statute, G.L. c. 183, § 58, also fails. That statute provides, in relevant part, that “[e]very instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . .” G.L. c. 183, § 58 (emphasis added). As far as the record shows, the roadway was neither in existence nor contemplated at the time of the conveyance from the Commonwealth to the Bordonaro trust and thus cannot be deemed a part of that grant. See Ex. 1 (plan of the Commonwealth conveyance to the Bordonaro trust, which shows no roadway); Deed from the Commonwealth of Massachusetts to the Angelo Bordonaro Realty Trust (see note 5, supra) (no mention of roadway); Ex. 3 (the Coggio plan, which was created long after the conveyance from the Commonwealth to the Bordonaro trust and references a “proposed service road”). Neither Mr. Coggio nor the Bordonaro trust ever owned the Commonwealth parkland to which the plaintiffs make their G.L. c. 183, §58 claim. They thus had no fee interest to grant and, as a result, this claim must fail.

The Plaintiffs Have Not Acquired an Easement by Prescription over Any Portion of the Roadway

The elements necessary to show an easement by prescription are substantially the same as those for adverse possession, with one exception — the claimant’s use need not be exclusive. McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 499 (2007) (citing Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827 (1981)) (“A prescriptive easement is established by showing the continuous, open, notorious, and adverse use of another’s land, conducted under a claim of right, for a period of twenty years.”); Boothroyd, 68 Mass. App. Ct. at 44 n.9 (“A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement.”); Brooks, Gill & Company, Inc. v. Landmark Properties, 23 Mass. App. Ct. 528 , 533 n.1 (1987). “A right of way by prescription may be established in either of two different ways: (1) by use with knowledge on the part of the owner whose land is used that the person using his land claims a right to use it, [or] (2) by a use so open and notorious that knowledge of a claim of right will be presumed.” L. Jones, A Treatise on the Law of Easements, § 266, at 220 (Baker, Voorhis & Co. 1898) (hereinafter, “Jones on Easements”). [Note 12] Permission by the owner – even implied permission – negates the claimant’s adversity, but the owner’s acquiescence to a claimant’s clearly adverse acts does not. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964); Jones on Easements, § 282, at 232-33. As described in Jones on Easements, “[t]he use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege, revocable at the pleasure of the owners of the soil.” Jones on Easements, § 282, at 232-33. “To prove the use to be adverse, it is not sufficient to show an intention alone to claim it as of right, but that intention must be made manifest by acts of clear and unequivocal character that notice to the owner of the claim might reasonably be inferred.” Id. at §285, at 235 (emphasis added).

On the undisputed facts, as a matter of law, the plaintiffs do not have a prescriptive easement to any portion of the roadway on the Commonwealth’s parkland. First, no such right can arise in parkland. G.L. c. 260, § 31. Second, a prescriptive easement does not exist because, as the plaintiffs admit, the DCR maintains and uses the road for its own purposes, [Note 13] the road remains open for the convenience of that use, others freely use it, and the plaintiffs have not shown “some decisive act, indicating a separate and exclusive use, under a claim of right . . . open and ostensible, and distinguishable from that of others.” Kilburn v. Adams, 48 Mass. (7 Met.) 33, 39 (1843). As held in Kilburn,

[t]he rule we think is, that where a tract of land, attached to a public building, such as a meeting-house, town house, school house, and the like, and occupied with such house, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to enclose it, such use is not adverse, and will not preclude them from enclosing it, when other views of the interests of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply unless there be some decisive act, indicating a separate and exclusive use, under a claim of right. So would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others.

Id. The roadway has been left open by the DCR for its own uses (access, driving and parking) and the plaintiffs’ uses — driving and parking [Note 14] — are neither distinguishable from the DCR’s uses nor inconsistent with “the use the proprietors [the DCR] think fit to make of it.” Id. Indeed, they are exactly the same.

Since the plaintiffs have — and can have — no prescriptive easement or other rights over the Commonwealth’s portion of the roadway, they have none over the Argiro portion. [Note 15] The right to an Argiro easement is dependent upon a Commonwealth easement. Without a right of access over the Commonwealth’s portion of the roadway, the purpose of the Argiro easement is impossible to perform and the easement is thus a nullity. Comeau v. Manzelli, 344 Mass. 375 , 381-83 (1962). [Note 16] As shown by the undisputed facts, the Argiro portion is useless for the purpose of ingress and egress to the plaintiffs’ lots (the purpose of the claimed prescriptive easement) unless the plaintiffs have ingress and egress rights over the Commonwealth’s portion. In the absence of such rights, the Argiro portion is nothing more than a cul-de-sac from Pond Street to the edge of Mr. Argiro’s lot, leading nowhere and with no connection to any of the plaintiffs’ lots.

The plaintiffs argue that the absence of a right to use the Commonwealth’s portion of the roadway is immaterial to the analysis of a right to use the Argiro land so long as they have actual access over the Commonwealth’s parkland, even if only permissive. I disagree. The Commonwealth may presently allow ingress and egress over its portion of the roadway. But it has not given its express permission for such access, it has not entered into any agreements (either written or oral) with any of the plaintiffs for such access, and it reserves its right to stop that access at any time of its choosing, for any reason or no reason. As discussed in both the previous and subsequent sections of this memorandum, it has a complete right to do so. As noted above, any such cessation in access would immediately make an access easement over the Argiro parcel fail its purpose. The plaintiffs thus argue for the following: a prescriptive easement on a parcel of land that comes and goes depending upon the whim of a party completely unrelated to the persons claiming that easement. This cannot be so. Land law in general, and certainly the law of easements, is premised on at least some degree of certainty and control. Rights in land either exist or don’t exist. If they exist, the rights are at least to some degree in the control of those whom they benefit. They do not appear and disappear like Brigadoon, totally dependent upon the actions of others. Because the plaintiffs have no right of access over the Commonwealth’s parkland, they have no prescriptive right of access over Mr. Argiro’s land. Comeau, 344 Mass. at 381-82.

The Plaintiffs Have Not Acquired an Easement by Necessity over Any Portion of the Roadway

Easements by necessity exist when the parcels affected were once in common ownership and a conveyance of one would leave it landlocked without a right of access over the other to a road or way. See Nylander v. Potter, 423 Mass. 158 , 162 (1996). The plaintiffs claim an easement by necessity over the roadway, partially on Commonwealth parkland and partially on Mr. Argiro’s. No such easement exists for two reasons. First, the only common owner of the plaintiffs’ land and the land on which the roadway runs was the Commonwealth. At the time the land was severed, the plaintiffs’ lots were part of a single, larger 284,600-square-foot parcel conveyed by the Commonwealth to the Bordonaro trust, and that conveyance did not landlock that parcel. See Ex. 1. Second, the plaintiffs’ lots are not landlocked even today. Each has access to Lucy Road, either directly or via the easement over Lots 21 and 22. See Ex. 3. I understand that the plaintiffs’ medical or age-related mobility issues may make a Lucy Street ingress and egress less convenient, but that is a function of their homes’ construction and thus irrelevant to this case.

Neither Mr. Tarmey nor the Ranieris Have an “Easement by Deed” over the Roadway

The plaintiffs contend that Mr. Tarmey has an “easement by deed” over the roadway, arising from the language in his deed that purports to grant a right “to use the proposed service road and Lucy Street, as shown on said plan [Exhibit 3] . . . .” Deed from Michael F. Tarmey, Sr. to Michael F. Tarmey, Jr. (Dec. 23, 2004). The same language appears in the Ranieris’ deed, Deed from Josephine A. Scalisi to Felice P. Ranieri and Claire L. Ranieri (April 27, 2006), and both have a common grantor (Mr. Coggio, on whose behalf the roadway plan (Exhibit 3) was recorded) in their deed chains.

It is a truism that a grantor can only grant rights that it possesses. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 292 (2005) (“Easements can be created only out of other land of the grantor, or reserved to the grantor out of the land granted; never out of the land of a stranger.” (internal citations omitted)). The express grant at issue is “to use the proposed service road . . . as shown on [Exhibit 3].” The “proposed service road…as shown on [Exhibit 3]” is entirely on the Commonwealth’s parkland. As a matter of law, the purported grant was ineffective, and thus no “easement by deed” exists, because its original grantor never owned, nor has any evidence been proffered to show he had easement rights over, the purportedly burdened land. See Deed from the Commonwealth of Massachusetts to the Angelo Bordonaro Realty Trust (May 17, 1951) (no reference to the road or an easement in the road). Indeed, the road did not even exist at the time Mr. Coggio acquired what are now the Tarmey and Ranieri lots and there is no evidence that it was even contemplated. See Exs. 1, 2 (no indication of roadway), and compare those exhibits to Ex. 3 (reference to a “proposed service road”).

The Plaintiffs Do Not Have an Easement by Estoppel over Any Portion of the Roadway

An easement by estoppel typically arises when a grantor deeds land bounded on a street or way without specifying what rights the grantee possesses to use the way. In such a circumstance, the law estops the grantor and those claiming under him from “deny[ing] the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way . . . .” Casella v. Sneierson, 325 Mass. 85 , 89 (1949). An easement by estoppel can also be found where land situated on a street is conveyed according to a recorded plan on which the street is shown. In this circumstance, the grantor and those claiming under him are estopped to deny the existence of the street for the entire length of the street. Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481 (1989).

The plaintiffs claim an easement by estoppel over the entirety of the roadway, but no such easement exists. Estoppel only applies if the party being estopped was both the grantor (or his successor) and had rights in or to the road in question. See Casella, 325 Mass. at 89; Patel, 27 Mass. App. Ct. at 481. As discussed above, the plaintiffs’ grantors had no rights in the road. The majority of the road is on Commonwealth parkland that they never owned and over which they had no express, prescriptive or other rights. The remainder of the road is on Mr. Argiro’s property and none of the plaintiffs’ properties bound on that portion of the road. Moreover, as discussed above, neither the plaintiffs nor any of their predecessors had or have any right to use Argiro portion. Comeau, 344 Mass. at 381-83 (way does not exist when its essential purpose cannot be exercised).

The Plaintiffs Do Not Have an Implied Easement over Any Portion of the Roadway

The plaintiffs claim the benefit of an implied easement over the roadway. The law of implied easements is summarized in Sorel v. Boisjolie as follows:

[w]here during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication.

330 Mass. 513 , 516 (1953) (emphasis added, citations omitted). Based upon the undisputed facts of this case, the plaintiffs do not meet these requirements. First, the roadway did not exist at the time of the severance (the conveyance from the Commonwealth to the Bordonaro trust). The roadway was not created until after the conveyed property was subdivided. See Exs. 1 (no road indicated), 2 (no road indicated) and 3 (road referenced as a “proposed service road). Second, as noted above, the roadway is not “reasonably necessary for the enjoyment of the other part of the parcel.” Id. Each of the plaintiffs’ lots has full access and the right to use Lucy Street. Thus, the plaintiffs do not have an implied easement. Id.

To the extent the plaintiffs rely on the subdivision plan and the deed references to that plan (a so-called “common scheme” implied easement, see Reagan v. Brissey, 446 Mass. 452 , 458 (2006)), that reliance is misplaced. The roadway on that plan (Ex. 3) is entirely on the Commonwealth’s property. [Note 17] The plaintiffs’ grantors had no right to grant such an easement, either express or implied, because they never owned nor had easement rights to the land it purports to burden.

The Roadway Is Not a Public Way

The plaintiffs’ final argument is that the roadway has become a public way by prescription. Again, that argument fails. “It is well settled that the creation of a public way by adverse use depends upon a showing of actual public use, general, uninterrupted, continued for []the prescriptive period[].” Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 84 (1979) (internal quotations and citations omitted). “It is sometimes said that to establish such adverse use, the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.” Id.

I assume for purposes of this motion that a general public use, continuous and uninterrupted, has been made of the roadway for more than twenty years. [Note 18] Nonetheless, a public way by prescription does not exist because the portion on Commonwealth parkland, essential to the roadway’s use as a way, cannot be taken by adverse possession or burdened by prescriptive easements in others. G.L. c. 260, § 31; see also G.L. c. 92, §§ 33, 35, 37 (authorizing DCR to construct, maintain and regulate roads within public reservations “in its discretion and upon such terms as it may approve,” which legislatively precludes the accrual of possession or prescriptive rights adverse to those discretionary powers). The plaintiffs may have a right to access such a roadway directly abutting their properties so long as that roadway exists and its use is not restricted, see Anzalone v. Metro. Dist. Comm’n, 257 Mass. 32 (1926), a question I need not and do not decide, but the existence of that roadway and any restrictions on its use are within the discretion of the DCR. [Note 19] G.L. c. 92, §§ 33, 35, 37. For the same reasons as previously discussed, because the DCR portion of the roadway cannot become public, the Argiro portion has not become public either. Comeau, 344 Mass. at 381-382.

Conclusion

For the foregoing reasons, the plaintiffs’ motion for summary judgment is DENIED and the defendants’ motions for summary judgment are ALLOWED. The plaintiffs do not have a right, title or interest in or to any part of the roadway, and their use of it is subject to the permission of the owner of the portions they seek to use. The roadway has not become a public way by prescription. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)