JAY L. McDERMOT, and SHARON A. McDERMOT v. MARIE BERNICE NAGLE, PAULINE T. BELISLE, and MARCIA MORRIS

Plaintiffs, Jay L. McDermot and Sharon A. McDermot, commenced this action on March 23, 2005, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to their rights in a parcel of real property, commonly known as “Driftway” in Amesbury, as shown on a plan of land titled “Plan of Land in Amesbury, Chas. H. Morse & Son, Surveyors, November 21, 1964, November 29, 1965,” filed with Certificate of Title No. 36821 in the Essex South Registry District of the Land Court (“Driftway”). Plaintiffs seek also a permanent injunction enjoining defendants from obstructing or interfering with their use of Driftway. [Note 1], [Note 2] Plaintiffs claim a deeded fee interest in Driftway or, in the alternative, an easement by prescription over the way. Defendants deny that plaintiffs hold any rights in Driftway.

On May 11, 2005, defendants, Pauline T. Belisle and Marcia Morris (“Belisle Defendants”), filed an Answer and Counterclaim, seeking declaratory judgment as to the plaintiffs’ claimed rights in Driftway and seeking also preliminary and permanent injunctions enjoining plaintiffs from using Driftway and storing any personal property thereon. Plaintiffs filed an Answer to the Counterclaim on June 10, 2005.

On July 12, 2005, defendant, Marie B. Nagle (“Nagle Defendant”) filed an Answer, Counterclaim, and Cross-Claim. Belisle Defendants filed an Answer to the Cross-Claim on July 29, 2005. Plaintiffs filed an Answer to the Counterclaim on August 30, 2005.

On December 5, 2005, plaintiffs filed a Motion for Summary Judgment on Count I of the Complaint. Belisle Defendants opposed the motion on January 3, 2006. Nagle Defendant opposed the motion on May 8, 2006. The motion was argued before the Court on May 12, 2006, and taken under advisement. The Court (Trombly, J.) issued an Order on June 28, 2007, allowing the plaintiffs’ Motion for Summary Judgment on Count I of the Complaint, ruling that because the plaintiffs’ property is described by deed as bounded by Driftway, the property includes a fee interest in the adjacent portion of Driftway to the centerline, as well as an implied easement to pass and re-pass over the entire length of Driftway on foot or with vehicles for the purpose of accessing Lake Attitash.

On October 14, 2008, the Court took a view of the property in the presence of counsel. Trial was held and completed the same day at the Newburyport District Court. Court Reporter Wendy Thomas was sworn to take the testimony. Testifying were Sharon A. McDermot, Jay L. McDermot, Thomas J. Nihan, Marcia G. Morris, and Marie B. Nagle. Exhibits 1-8 and 11-20 were admitted into evidence and chalks A-E were marked for identification. This is the matter presently before the Court.

After reviewing the record before the Court, I find the following facts:

1. Driftway is a parcel of land in Amesbury, thirty feet wide, extending approximately one hundred feet from Star Lane in the North and bounded by Lake Attitash on the South.

2. Plaintiffs, Jay L. McDermot and Sharon A. McDermot, own a parcel of land, abutting Driftway on the West (the “McDermot Property”).

3. Defendant, Marie B. Nagle owns a parcel of registered land abutting Driftway on the West and Lake Attititash on the South.

4. Defendants, Pauline T. Belisle and Marcia Morris, own a parcel of land abutting Driftway on the East.

5. By deed, Belisle and Morris’ property is bounded to the South by Lake Attitash, a great pond. A Decision Sketch is attached, which displays the various parcels, Lake Attitash, and the surrounding area.

6. The deeds of each of the properties owned by the defendants contain a right of way over Driftway to pass and re-pass.

7. The Court has previously ruled that plaintiffs hold an implied easement to pass and re-pass over the entire Driftway by foot or vehicle for the purpose of accessing Lake Attitash.

8. At or about the shoreline of Lake Attitash, to the South of the Belisle Defendants property, is a retaining wall. The wall extends to the West, ending at or near the South end of the Driftway, but not within it.

9. The wall apparently once continued farther West, but has since fallen down. There are some remnants of the wall in the area of the shoreline of Driftway.

10. Where the wall ends, there is a relatively sharp decline in the slope of the shore down to the water.

11. About the southwest corner of Driftway there is a stairway leading to the water. The stairway consists of natural rocks and manmade stone blocks. They are not of consistent size or shape, rendering the steps uneven and of varying rise.

12. The parties allege that certain personal property has been stored on Driftway at various times which obstruct or interfere with use thereof.

13. The parties allege that vehicles are parked on Driftway at times which also interfere with and obstruct use of the way.

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I. EASEMENT BY PRESCRIPTION

Plaintiffs claim that they have established an easement by prescription to use Driftway. However, in the Order of June 28, 2007, the Court ruled that by deed, the property includes a fee interest in the adjacent portion of Driftway to the centerline as well as an implied easement to pass and re-pass over the entire length of Driftway on foot or with vehicles for the purpose of accessing Lake Attitash. This deeded easement has existed since the creation of the plaintiffs’ lot on February 6, 1947. As a result, all use of Driftway by plaintiffs and their predecessors-in-title was permissible as a result of grant. Therefore, there can be no prescriptive use of the easement by plaintiffs or their predecessors-in-title because there is no adverse use of the way.

However, if plaintiffs did not have a right as a result of grant, they would have established a prescriptive right over Driftway. Acquisition by prescription of a right of way over land of another requires use or enjoyment “continued uninterruptedly for twenty years.” G.L. c. 187, § 2. “Whenever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524 , 528-29 (1930). Whether the elements of a claim for a prescriptive easement have been satisfied is essentially a factual question for the trial judge. See Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A claim of right to land may exist even where the claimant and the owner of the claimed land mistakenly believe the claimant is acting within his rights. See Kendall v. Salvaggio, 413 Mass. 619 , 623 (1992).

In the instant case, I credit the affidavit of Roger Nihan and the testimony of Thomas Nihan, Jay McDermot, and Sharon McDermot that plaintiffs and their predecessors-in-title have used Driftway for access to Lake Attitash since 1978. They have done so at all times of the day, without interruption, and without permission. Therefore, plaintiffs and their predecessors have used Driftway openly, continuously, notoriously, and adversely for over twenty years.

II. RIGHT TO MAINTAIN DOCK AND BOATS IN LAKE ATTITASH

Defendants counterclaim that plaintiffs have no right to place and maintain a dock or boats in the area of Lake Attitash extending seaward of Driftway. However, defendants have not exhausted their administrative remedies on this issue, and the Court has no jurisdiction to determine it.

It is undisputed that Lake Attitash is a Great Pond. The parties all hold the same rights to use the flats and water of the lake, as does the public. Defendants may seek relief from the appropriate municipal entity or state department, including the Department of Environmental Protection, for any use of the lake which they feel violates governing regulations. They may also have claims against the actions of others which interfere with their or the public’s use of the pond. Such claims have not been raised here, however. Accordingly, I need not rule on the issue of whether plaintiff has the right to maintain a dock and boats in Lake Attitash.

I reiterate that plaintiffs hold a fee interest in the adjacent portion of Driftway to the centerline only, and an easement to use the remainder of Driftway. In addition, as will be clarified further later, plaintiff does not have the right to maintain moorings secured on Driftway to anchor floating docks offshore on the lake. Tying ropes to trees on the Driftway constitutes the storing of personal property on the easement. Such acts are clearly beyond the scope of the easement.

III. RIGHT TO CONSTRUCT OR REPAIR RETAINING WALL

It is well-settled law that the dominant estate has the right to make reasonable repairs to maintain the right of way for full use and enjoyment. Guillet v. Livernois, 297 Mass. 337 , 340 (1937); Mt. Holyoke Realty Corp., 298 Mass. at 514. Similarly, the dominant estate must have the right to make improvements, where such alterations are reasonably necessary to adapt the way to the granted use. Codman v. Wills, 331 Mass. 154 , 158 (1954) (and cases cited). Moreover, in certain circumstances, “this use may vary from time to time with what is necessary to constitute full enjoyment of the premises.” Mahon v. Tully, 245 Mass. 571 , 577 (1923); see Tehan v. Sec. Natl. Bank, 340 Mass. 176 , 182 (1959); Parsons v. New York, New Haven, and Hartford R.R. Co., 216 Mass. 269 , 273 (1913). However, any repairs or improvements may not burden the servient estate “to a greater extent than was contemplated or intended at the time of the grant.” Doody, 315 Mass. at 133.

In the case of an easement held in common by several dominant tenants, each tenant is “governed by equitable principles, namely, what is reasonable in the exercise of their respective privileges. The benefits and convenience [of all dominant estate holders] must be taken into account.” Shapiro v. Burton, 23 Mass. App. Ct. 327 , 334 (1987) (and cases cited).

In the instant case, the Belisle Defendants hold a fee interest in the adjacent portion of Driftway to the centerline and the remaining parties hold an easement to use that portion of Driftway for the purpose of accessing Lake Attitash. The Belisle Defendants are servient tenants of this portion of Driftway. To the extent that the Belisle Defendants propose to construct or repair a retaining wall on this portion of Driftway, this wall would obstruct the remaining parties from using the easement. The retaining wall would remove the shore where Driftway and Lake Attitash meet. The slope of Driftway to the water would be replaced by a sheer wall-face drop to the water. This drop would prevent the parties from accessing Lake Attitash at that location, and confine them to the western shoreline of Driftway for such access.

The Belisle Defendants are dominant tenants in the remainder of Driftway. To the extent that the Belisle Defendants propose to construct or repair a retaining wall along the remainder of Driftway, they have not demonstrated that a retaining wall at this location is necessary to the parties’ full use and enjoyment of the easement. In fact, even if the retaining wall did once extend along the shore of the pond, it has long since fallen down and been scattered by the water. The parties have known only the use of Driftway without a retaining wall and have been able to use the easement for access to Lake Attitash despite its absence or, more correctly, because of its absence.

Defendants argue that a retaining wall is necessary to preserve Driftway against erosion by the lake. However, they offer no evidence to show that any substantial erosion is occurring in this way. Accordingly, I rule that without the consent of all servient estate holders, there is no right to construct or repair a retaining wall where Driftway abuts Lake Attitash.

Belisle Defendants assert that the deed to their property describes the lot as bounded on the South “by” Lake Attitash, and that their property, therefore, extends to the extreme low water mark. While this is legally accurate, this fact does not confer rights in defendants above those of the remaining servient tenants in Driftway or the flats seaward of that right of way. Belisle Defendants certainly have a right to construct or maintain any structures on their property, pursuant to proper administrative and municipal procedure, but those rights cannot extend beyond their boundaries into Driftway.

IV. RIGHT TO REPAIR OR IMPROVE STAIRWAY

Similarly, Belisle Defendants have not demonstrated that the stairway in its current condition has obstructed the servient tenants in the full use and enjoyment of the easement. The stairway consists of natural rocks and manmade stone blocks. They are not of consistent size or shape, rendering the steps uneven and of varying rise. Defendants argue that the inconsistency of the steps render them dangerous to traverse, especially when carrying boats to and from the water. However, it appears that the stairway has existed in this form for some time without complaint by the other servient tenants. Defendants have not shown that the condition of the stairway has been degraded in recent history, requiring repair. Moreover, all parties have the option of accessing the shore by any other route along Driftway. Notably, there is a slope from Driftway to the shore a few feet east of the stairway. Belisle Defendants argue that this slope is no alternative, because it is too steep. Nonetheless, I am not convinced that such inconveniences are sufficient to render the easement devoid of usability. Accordingly, I rule that without the consent of all servient estate holders, there is no right to repair or improve the stairway.

V. RIGHT TO STORE PERSONAL PROPERTY AND PARK VEHICLES ON DRIFTWAY

The Court has determined that the three landowner/parties in this case have the right to pass and re-pass over the entire length of Driftway, by foot or vehicle, for the purpose of accessing Lake Attitash. However, this right does not extend to the storage and/or maintenance of personal property on Driftway. I now further clarify that personal property may be brought onto Driftway by the parties or their guests and may be maintained on Driftway during the owner’s use of Driftway, but may not be stored on Driftway. This includes ropes or other anchoring devices located on Driftway and used to secure floating docks or other objects floating offshore on Lake Attitash. Plaintiffs may use such anchors concurrent with their use of Driftway to enjoy Lake Attitash, but they must remove them from Driftway after each use of the lake.

Vehicles may be temporarily parked on Driftway for the purposes of loading and unloading, but may not be parked for other purposes or stored on Driftway. Any personal property, including vehicles, which are currently encroaching on Driftway, must be removed by its owner, immediately, no matter how small the encroachment.

The parties quibble over the presence of a picnic table on Driftway; however, it is not clear who the table belongs to. Nevertheless, the table is personal property and may not be maintained on Driftway, unless all parties consent.

The Court strongly suggests that the parties resolve their differences and live as neighbors. The Parties should attempt to strictly abide by this court order while at the same time granting one another some measure of flexibility for minimal and temporary infractions.

CONCLUSION

For the foregoing reasons, this Court concludes that, there is no right to construct, repair, or improve a retaining wall or stairway where Driftway abuts Lake Attitash. I do not rule on the issue of whether plaintiff has the right to maintain a dock and boats in Lake Attitash because that issue must be acted upon by the appropriate authorities, Lake Attatitash being classified as a Great Pond. Finally, I clarify that personal property and vehicles may be maintained and stored temporarily on Driftway, but only for the time that the owner of the property is making actual use of the way. Personal property may not otherwise be stored on Driftway.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: June 8, 2009