RONALD M. SULLIVAN and MARY N. SULLIVAN v. DANIEL J. DART, TRUSTEE OF 20 STRAWBERRY LANE REALTY NOMINEE TRUST, JOSEPH O. SCARLATELLI and HELEN A. SCARLATELLI, and MICHAEL F. SYZMANSKI and JACQUELINE VIGNEAULT

Plaintiffs Ronald M. Sullivan and Mary N. Sullivan (together, “Plaintiffs”) filed their unverified Complaint on June 18, 2004, pursuant to G.L. c. 231A, seeking: (1) a Declaratory Judgment that Defendants Daniel Dart (“Dart”), Trustee of 20 Strawberry Lane Realty Nominee Trust (the “Dart Trust”), Joseph O. Scarlatelli and Helen A. Scarlatelli (the “Scarlatellis”), and David M. and Carol Bocksch (the “Bockschs”) (together, “Defendants”) have not defeated Plaintiffs’ claim for deeded and/or prescriptive rights relative to three ten-foot wide rights of way (“Disputed Area A,” “Disputed Area B,” and “Disputed Area C,” as hereinafter defined) [Note 1] (together, the “Disputed Area”) and Plaintiffs’ fee interest in Strawberry Lane, as hereinafter defined; (2) to define such rights; and (3) a declaration of Plaintiffs’ rights in a ten-foot wide section of shoreline on Ryder’s Cove (“Recreational Area”). [Note 2], [Note 3] Defendants filed their Answer and Counterclaim on September 20, 2004, seeking a determination of rights with respect to the Disputed Area, Strawberry Lane, and the Recreational Area. On October 18, 2004, Plaintiffs filed an Answer to the Counterclaim.

Plaintiffs filed their Motion for Summary Judgment on June 25, 2007, together with a supporting brief and a Statement of Facts. On July 24, 2007, Defendants filed a Statement of Facts and Brief in Opposition of Motion for Summary Judgment. Because there were disputed material facts, at a telephone conference on July 26, 2007, this court ordered a trial on the issues. A pre-trial conference was held on October 29, 2007, and a Joint Pre-Trial Memorandum was filed on November 9, 2007, in which the parties agreed upon certain facts and exhibits. A site view was held on December 10, 2007, and on the same day the first day of trial was held at Orleans District Court. On December 11, 2007, the second day of trial was held at the Land Court in Boston. Testimony at trial was given by Plaintiffs’ witnesses Ronald M. Sullivan (Plaintiff), Mary N. Sullivan (Plaintiff), and Frank J. Shealey (“Shealey”) (attorney for Plaintiffs’ predecessor in title), and Defendants’ witnesses Joseph O. Scarlatelli (Defendant), Helen “Pinky” Scarlatelli (Defendant), Daniel J. Dart (Defendant), and Frederic Bearse, Jr. (“Bearse”) (neighbor who resides at 676 Orleans Road, Chatham). Thirty-two exhibits were admitted into evidence. On March 11, 2008, Plaintiffs filed their Post Trial Brief. Defendants filed their Post Trial Memorandum on March 13, 2008, at which time the matter was taken under advisement.

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

I. CHAIN OF TITLE

1. Edith C. Harding and John P. Farmer (“Harding/Farmer”) formerly owned the land comprising Lots 1, 2, 3, and Strawberry Lane (the “Murphy Lot”) as shown on the “Subdivision Plan of Land in Chathamport, Mass. belonging to John E. Murphy et ux” dated April 1959, prepared by Schofield Brothers and recorded with the Barnstable County Registry of Deeds (the “Registry”) in Plan Book 150, Page 89 (the “Schofield Plan”), in addition to the abutting property to the east delineated “Richard H. Farmer et al” on the Schofield Plan (the “Farmer Lot”).

2. Harding/Farmer conveyed the Murphy Lot to Virginia A. Harding by deed dated September 26, 1947, and recorded with the Registry in Book 696, Page 327. The conveyance included the following language: Together with a right of way for all purposes for which a way may be used, over the Westerly side of [the Farmer Lot], ten (10) feet in width and next adjoining the Easterly line of the herein granted premises, from said State Highway to Ryder’s Cove. [Disputed Area B and Disputed Area C, as hereinafter defined.]

This conveyance is made subject to a right of way for all purposes for which a way may be used, ten (10) feet in width, next adjoining the Easterly line of the herein granted premises, from said State Highway to said waters of Ryder’s Cove. [Disputed Area A, as hereinafter defined, and a portion of Strawberry Lane.]

3. Harding/Farmer conveyed the Farmer Lot to Richard H. Farmer and Robert C. Farmer by deed dated September 26, 1947, and recorded with the Registry in Book 696, Page 328. The conveyance included the following language:

Together with a right of way for all purposes for which a way may be used, over the Easterly side of [the Murphy Lot], ten (10) feet in width and next adjoining the Westerly line of the herein granted premises, from said State Highway to said waters of Ryder’s Cove. [Disputed Area A and a portion of Strawberry Lane.]

This conveyance is made subject to a right of way for all purposes for which a way may be used, ten (10) feet in width, next adjoining the Westerly line of the herein granted premises, from said State Highway to said waters of Ryder’s Cove. [Disputed Area B and Disputed Area C.]

4. The Murphy Lot was transferred to John E. Murphy (“Murphy”) by deed from Virginia A. (Harding) McGrath dated April 17, 1958, and recorded with the Registry in Book 1002, Page 2.

5. Strawberry Lane was created in 1959 by Murphy. As depicted on the Schofield Plan, Strawberry Lane is a twenty-three foot wide private way accessible from Route 28, a public way (also known as the State Highway). [Note 4] As constructed, Strawberry Lane consists of a paved lane approximately nine-feet wide. In the area between Lots 1 and 3, Strawberry Lane extends westerly and expands into a cul-de-sac as shown on the Schofield Plan.

6. Plaintiffs’ Title

A. Murphy and his wife Jean K. Murphy, as tenants by the entirety, [Note 5] conveyed Plaintiff Property to Gardner C. Reed and Priscilla L. Reed (the “Reeds”) by deed dated May 29, 1964, and recorded with the Registry in Book 1253, Page 134 (the “Reed Deed”). Easement rights were described as:

Together with the fee in Strawberry Lane adjoining the granted premises on the east, subject to a Right of Way or Easement over Strawberry Lane as shown on said plan, appurtenant to Lots 2 and 3 shown on said plan, for all purposes for which public ways are used in the Town of Chatham including the right to install and maintain all the usual and necessary public utility services within the confines of said way.

Together with the right to use 10 feet of the shore line of Ryder=s Cove at the Northeasterly corner of Lot 3 on the aforementioned plan, at the Northerly end of a 10 foot right of way running from Strawberry Lane over said Lot 3, and in extension thereof, for boating, bathing and other recreational activities.

. . . .

[Lot 1 and Lot 2] are hereby conveyed together with the Right of Way for all purposes for which a way may be used, over the Westerly side of the land now or formerly of Richard H. Farmer et al, ten (10) feet in width from the said State Highway to the waters of Ryder’s Cove.

B. The Reeds conveyed Plaintiff Property to Peter R. Avery and Nathalie J. Avery (the “Averys”) by deed dated November 2, 1981, and recorded with the Registry in Book 3389, Page 118.

C. A Restrictive Covenant (the “Restrictive Covenant”) was executed in 1990 between the Averys (Plaintiffs’ predecessor in title), Charlotte K. Smith (the Scarlatellis’ predecessor in title), and Kathryn C. Farmer (the Dart Trust’s predecessor in title) that granted an easement to the Averys to construct a wooden stairway in Disputed Area A and Disputed Area B, recorded with the Registry in Book 7067, Page 310. The four foot, eight-inch wide wooden stairway straddles the Scarlatelli/Dart property line with two feet four inches on each property. The Restrictive Covenant provided, whereas Farmer and Smith properties . . . are encumbered by an Easement of access to Ryder’s Cove, so called; and, whereas, Avery[] property . . . has the benefit of said easement; and, whereas, Farmer and Smith, in consideration of the Covenants hereinafter contained and agreed to by Avery, hereby grant an easement to Avery to construct a stairway, said stairway to be situated as described in a Town of Chatham Zoning Board of Appeal Decision recorded at the Registry of Deeds in Book 6812 Page 143 and marginally referenced therein to the deeds of the above-named parties.

D. Nathalie J. Avery, surviving tenant by the entirety, conveyed Plaintiff Property to Joseph S. Fitzpatrick and Mary Ellen Fitzpatrick by deed dated April 1, 1994, recorded with the Registry in Book 9127, Page 229.

E. Joseph S. Fitzpatrick and Mary Ellen Fitzpatrick conveyed Plaintiff Property to Mary Ellen Fitzpatrick by deed dated April 14, 1998, recorded with the Registry in Book 11375, Page 174.

F. Mary Ellen Fitzpatrick conveyed Plaintiff Property to Plaintiffs by deed dated June 4, 1999 (“Plaintiff Deed”), and recorded with the Registry in Book 12322, Page 248. The easements in such deed were described as follows:

Together with the fee in Strawberry Lane adjoining the granted premises on the east, but subject to a Right of Way or Easement over Strawberry Lane as shown on said plan, appurtenant to Lots 2 and 3 shown on said plan, for all purposes for which public ways are used . . . including the right to install and maintain all the usual and necessary public utility services within the confines of said way.

Together with the right to use 10 feet of the shore line of Ryder's Cove at the Northeasterly corner of Lot 3 on the aforementioned plan, at the Northerly end of a 10 foot right of way running from Strawberry Lane over said Lot 3, and in extension thereof, for boating, bathing and other recreational activities [the Recreational Area].

Together with a Right of Way or Easement over Strawberry Lane as shown on the aforementioned plan for all purposes for which public ways are used in the Town of Chatham, including the right to install and maintain all the usual and necessary public utility services within the confines of said way, to be used in common with all others now or hereafter legally entitled thereto. The above lot is conveyed together with the Right of Way for all purposes for which a way may be used, over the Westerly side of the land now or formerly of Richard H. Farmer et al, ten (10) feet in width from the said State Highway to the water of Ryders Cove.

7. The Scarlatellis’ Title

A. Murphy conveyed the Scarlatelli Property to Richard H. Murphy by deed dated May 12, 1960, and recorded with the Registry in Book 1077, Page 311.

B. Richard H. Murphy conveyed the Scarlatelli Property to Murphy by deed dated May 12, 1960, and recorded with the Registry in Book 1242, Page 90.

C. Murphy conveyed the Scarlatelli Property to Adrian L. Lonsdale by deed dated May 29, 1964, and recorded with the Registry in Book 1253, Page 138 (the “Lonsdale Deed”). [Note 6] The Scarlatelli Property was conveyed subject to the following language:

Said Lot 3 is subject to a right of way 10 feet in width along the easterly side thereof adjacent to land now or formerly of Richard H. Farmer et al, and the right to use 10 feet of the shore line of Ryder’s Cove at the northerly end thereof and in extension thereof for boating, bathing and other recreational activities all as appurtenant to Lot 1 as shown on said plan.

Together with an appurtenant right of way or easement over Strawberry Lane as shown on said plan and an appurtenant right of way for all purposes for which a way may be used, over the westerly side of the land now or formerly of Richard H. Farmer et al, 10 feet in width from the State Highway to the waters of Ryder’s Cove.

D. Adrian L. Lonsdale conveyed the Scarlatelli Property to Priscilla L. Reed by deed dated November 9, 1967, and recorded with the Registry in Book 1396, Page 761.

E. Priscilla Reed conveyed the Scarlatelli Property to the Reeds by deed dated October 15, 1968, and recorded with the Registry in Book 1470, page 847.

F. The Reeds conveyed the Scarlatelli Property to Charlotte K. Smith by deed dated September 14, 1973, and recorded with the Registry in Book 1933, Page 209.

G. Charlotte A. Baker, as Executrix of the will of Charlotte K. Smith, Barnstable Probate No. 94P-1608EP1, conveyed the Scarlatelli Property to Helen A. Scarlatelli by deed dated April 4, 1997, recorded with the Registry in Book 10730, Page 15.

H. Helen A. Scarlatelli conveyed the Scarlatelli Property to the Scarlatellis as tenants in common by deed dated September 12, 1997, recorded with the Registry in Book 10963, Page 232.

8. The Dart Title

A. The Farmer Lot was divided into two lots by brothers Richard H. and Robert C. Farmer as depicted on two plans (the “1968 Plans”), of which the first plan was titled “Plan of Land in Chatham, Mass. made for Richard H. Farmer” (the Dart Property) and the second plan was titled “Plan of Land in Chatham, Mass. made for Robert C. Farmer” (the Syzmanski/Vaigneault Property), both dated November 2, 1968, prepared by Nickerson & Berger, Engineers, and recorded with the Registry in Plan Book 225, Page 77. [Note 7] The 1968 Plans show Strawberry Lane as a thirty-three foot wide way.

B. Kathryn C. Farmer (wife of Richard H. Farmer), as surviving joint owner, [Note 8] conveyed the Dart Property (and the Syzmanski/Vigneault Property) to the Dart Trust by deed dated December 23, 1996, recorded with the Registry in Book 10550, Page 18. [Note 9] The deed from Kathryn C. Farmer to the Dart Trust stated, in part:

Together with a right of way for all purposes for which a right of way may be used, ten (10) feet in width, parallel with, and next adjoining the Westerly side of the herein granted premises from the Massachusetts State Highway, Route 28, sometimes called Orleans Road, to the waters of Ryder’s Cove.

9. The Syzmanski/Vigneault Title

A. Richard H. Farmer conveyed the Syzmanski/Vigneault Property to Richard H. Farmer and Kathryn C. Farmer husband and wife as joint tenants by deed dated May 22, 1978, and recorded with the Registry in Book 2717, Page 259.

B. Kathryn C. Farmer conveyed the Syzmanski/Vigneault Property (and the Dart Property) to the Dart Trust by deed dated December 23, 1996, recorded with the Registry in Book 10550, Page 18. [Note 10]

C. The Dart Trust conveyed the Sigmanski/Vigneault Property to the Bockschs by deed dated June 13, 1997, and recorded with the Registry in Book 10798, Page 72. This deed states that

[p]remises are subject to and have the benefit of a Boundary Line Agreement dated November 20, 1991 and recorded at the Registry in Book 7768, Page 60; said boundary line as described therein being shown on a plan dated June 11, 1991, prepared by Eldredge Surveying & Engineering for Frederick H. Bearse, Jr. and recorded at the Registry in Book 484, Page 77.

Together with a right of way for all purposes for which a right of way may be used, ten (10) feet in width, parallel with, and next adjoining the Westerly side of the herein granted premises from the Massachusetts State Highway, Route 28, sometime called Orleans Road, to the waters of Ryder’s Cove. Said right of way being the same right of way that was reserved by deed from Edith C. Harding and John P. Farmer dated September 26, 1947 and recorded at Barnstable Registry of Deeds in Book 696 Page 327. Premises are conveyed together with the benefit of and subject to the Restrictive Covenant recorded with Barnstable County Registry of Deeds in Book 7067, Page 310.

Subject to a right of way in the premises for all purposes for which a right of way may be used, ten (10) feet in width and next adjoining the westerly line of the herein granted premises from said State Highway to the waters of Ryders Cove; said right of way being the same right of way in the premises herein conveyed that was granted to Virginia A. Harding by deed from Edith C. Harding to John A. Farmer dated September 26, 1947 and recorded at Barnstable County Registry of Deeds in Book 696, Page 328.

D. The Bockschs’ conveyed the Syzmanski/Vigneault Property to Syzmanski/Vigneault by deed dated September 18, 2006, and recorded with the Registry in Book 21369, Page 226.

II. USE

10. As discussed, supra, the Disputed Area consists of three, ten-foot wide rectangular shaped rights of way that lie between Route 28 and Ryder’s Cove, and are shown on a plan titled “Plan of Land in Chatham, Massachusetts, as Surveyed and Prepared for The Bocksch Property, the 20 Strawberry Lane Realty Trust Property, The Scarlatelli Property, [and] the Sullivan Property” by Bennett & O=Reilly, Inc. dated December 7, 2007 (the “2007 Plan”). The Disputed Area consists of the following three separate areas: (1) the portion of the Disputed Area between the northern end of Strawberry Lane and Ryder’s Cove on the Scarlatelli Property ten-feet wide and adjacent to the easterly boundary of the Scarlatelli Property (“Disputed Area A”); (2) the portion of the Disputed Area between the boundary line dividing the Dart Property from the Syzmanski/Vigneault Property and Ryder’s Cove on the Dart Property ten-feet wide and adjacent to the westerly boundary of the Dart Property (“Disputed Area B”); and (3) the portion of the Disputed Area between Route 28 and the boundary line dividing the Dart Property from the Syzmanski/Vigneault Property on the Syzmanski/Vigneault Property ten-feet wide and adjacent to the westerly boundary of the Syzmanski/Vigneault Property (“Disputed Area C”). Disputed Areas A, B, and C are shown on the reference sketch attached hereto as Exhibit A.

11. Disputed Area A (owned by Scarlatelli)

A. Disputed Area A contains the following obstructions: a utility pole, a six-foot wide hedgerow (the “Hedgerow”), two bushes (deciduous), one maple tree, a two-and-a-half foot wide row of arborvitae, sprinkler heads and water spigots, lawn grass, and two sets of wooden stairs, all as shown on the 2007 Plan.

B. Based on aerial photographic evidence from 1977 (the “1977 Photo”), [Note 11] the Hedgerow existed as early as 1977. [Note 12]

C. The 1977 Photo shows a paved looped driveway that appears to have been located partially in Disputed Area A. [Note 13] The 1977 Photo shows the driveway positioned immediately west of the Hedgerow and providing access to the Scarlatelli Property from Strawberry Lane. A portion of this paved driveway was removed by Joseph Scarlatelli sometime after the Scarlatellis acquired the property in 1997. [Note 14]

D. When the Scarlatellis purchased the Scarlatelli Property in 1997, Disputed Area A contained shrubs that were covered in honeysuckle and poison ivy, which the Scarlatellis removed after moving in. The Scarlatellis maintained their lawn, installed sprinklerheads in 1997, and installed a row of 2.5 foot wide arborvitae in 1999 within Disputed Area A. The Scarlatellis did not plant the maple tree within Disputed Area A, as depicted on the 2007 Plan.

E. Once Plaintiffs acquired Plaintiff Property in 1999, they traversed Disputed Area A on foot frequently. [Note 15]

12. Disputed Area B (owned by Dart)

A. Disputed Area B contains a 1.3-foot wide stone retaining wall (approximately two to three feet in height) that supports a row of hydrangeas, two scrub bushes, lawn grass, a portion of a paved driveway (that currently provides access to the Dart Property), a set of wooden stairs, a garden, and an underground irrigation system, as shown on the 2007 Plan. The retaining wall runs approximately thirty feet northerly and five feet easterly within Disputed Area B.

B. Since acquiring the Dart Property in 1996, Dart removed portions of a paved driveway, trees (some twenty-five to thirty feet high), bushes, and shrubs within the Dart Property and partly in Disputed Area B, [Note 16] installed the stone retaining wall and associated hydrangeas, and planted and maintained lawn grass in Disputed Area B. Dart also installed an underground sprinkler system, a portion of which is located within Disputed Area B.

C. Once Plaintiffs acquired title to Plaintiff Property in 1999, they traversed Disputed Area B on foot frequently. [Note 17]

D. The 1977 Photo shows a paved looped driveway (symmetric to the driveway shown on Disputed Area A) that appears to have been located partly in Disputed Area B. The 1977 Photo shows the driveway positioned immediately east of the Hedgerow and providing access to the Dart Property from Strawberry Lane. Dart gave evidence that he, his guests, and his lawn maintenance personnel parked on this driveway between 1996 and 2004. Dart removed this driveway in 2004.

E. Subsequent to removal of the paved driveway in 2004, Dart temporarily placed a construction dumpster within Disputed Area B to dispose of construction debris while his home was being renovated. [Note 18] After the construction dumpster was removed in 2004, Dart installed sod and an underground sprinkler system within Disputed Area B.

13. Disputed Area C (owned by Syzmanski/Vigneault)

A. As shown on the 2007 Plan, Disputed Area C contains a utility pole, a “natural” wooded area (the “Wooded Area”), a gravel driveway providing access from Strawberry Lane to the Syzmanski/Vigneault Property, a post and rail fence (the “Fence”), and lawn grass.

B. The 1977 Photo shows the Wooded Area existing on the Syzmanski/Vigneault Property, but it is not clear as to the location or composition of the Wooded Area with respect to Disputed Area C. [Note 19] The 2007 Plan shows the Wooded Area as extending over the entire width of Disputed Area C into Strawberry Lane.

C. Syzmanski/Vigneault did not provide evidence of when the gravel driveway or the Fence were installed. Most of the Fence existed when Dart acquired the Dart Property in December 1996. Dart repaired one or two wooden fence posts in 1996 or 1997 as a condition of the sale when the Syzmanski/Vigneault Property was sold to the Bockschs.

D. Plaintiffs did not provide any evidence that they used Disputed Area C.

14. The Recreational Area (owned by Scarlatelli)

A. The Recreational Area is a ten-foot wide section of shoreline located between the high-water mark on the Scarlatelli Property to the low water mark of Ryder’s Cove.

B. Plaintiffs have used the Recreational Area for bathing and recreational activities on a seasonal basis since 1999.

C. The Scarlatellis sent Plaintiffs a letter (the “Scarlatelli Letter”) on August 2, 2007, requesting that Plaintiffs remove objects from the Recreational Area including “boats, kayaks, picnic tables, umbrellas or other objects [that] do not come within the claimed easement right.” [Note 20]

15. Strawberry Lane (owned by Plaintiffs)

A. After the Scarlatellis purchased the Scarlatelli Property in 1997, they installed two light posts and three holly bushes within the Strawberry Lane boundary, immediately adjacent to the southern boundary of the Scarlatelli Property, as shown on the 2007 Plan. In addition, a portion (fifteen feet) of the Hedgerow grows in Strawberry Lane. A maple tree of unknown age is also located in this area.

B. At some time after acquiring Plaintiff Property in 1999, Plaintiffs installed a garden within the portion of Strawberry Lane immediately east of Plaintiff Property. Prior to the purchase, there already existed a post and rail fence, a “planted” wooded area of unknown age in that same portion of Strawberry Lane, and a “natural” wooded area in Strawberry Lane to the north of Plaintiff Property.

16. By letter (the “2002 Letter”) to Defendants dated July 23, 2002, Plaintiffs suggested that all of the foregoing obstructions of the right of way have been not adverse but actually with the permission of the prior owners of the lots in the neighborhood. All the deeds to all the properties are very recent, within 10 years, and they all recognize the existence of the private way of Strawberry Lane and the rights of way.

Plaintiffs then requested the following of Defendants:

As a group, the neighborhood should acknowledge in a written document the existence of all of the Strawberry Lane and all of the rights of way and further acknowledge that any fencing, cultivation, gardening or obstructions now distill Strawberry Lane and the rights of way are there with the permission of the dominant owners, and no servient owners intends his use of the right of way on his property to be adverse to the rights of the dominant owners.

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The case at bar requires this court to address three main issues. The first concerns Plaintiffs’ deeded rights in Strawberry Lane and whether Plaintiffs have the right to remove encumbrances in Strawberry Lane. The second issue relates to Plaintiffs’ deeded easement rights in the three, ten-foot wide rights of way previously described as Disputed Areas A, B, and C, including the right to remove encumbrances in such rights of way. This issue also involves whether Plaintiffs have lost such rights through abandonment or acquiescence or by Defendants’ acts of adverse possession or prescriptive use. Finally, the third issue requires that this court review Plaintiffs’ interest in the Recreational Area, including Plaintiffs’ right to store a dinghy or kayak there. I shall address each issue in turn.

In order to establish an easement by prescription, evidence must show a use that has been: (1) open and notorious; (2) adverse; (3) continuous and uninterrupted; and (4) for a period of at least twenty (20) years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1947). The party claiming an easement by prescription has the burden of proof and persuasion on each of the four elements of the test. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Failure to provide sufficient evidence on any of the elements defeats the entire prescriptive easement claim. Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). If the claimant has not been using the property for the required twenty year period, he can satisfy the requisite period by tacking on “periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” Stavros, 348 Mass. at 264 (quoting Am. Law of Property, § 8.59). See G. L. c. 260, § 22. 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.” Stavros, 348 Mass. at 262. See 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. Open and notorious use is established by showing that the claimant’s use was “made without attempted concealment,” Foot v. Bauman, 333 Mass. 214 , 218 (1955), and is “such that the owner should have known of it.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). Nonpermissive and adverse use is established by showing “lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See also Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959). Exclusive use is established where it “encompass[es] a ‘disseisin’ of the record owner.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To establish exclusive use, the claimant must show that he used the disputed area to the “exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them.” Id.

An easement may be deemed abandoned if evidence shows an “intention [by the dominant estate] never again to make use of the easement in question.” Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). While evidence of mere nonuse of an easement, by itself, is insufficient to establish the intent of abandonment, Willets v. Langhaar, 212 Mass. 573 , 575 (1912), case law indicates that the “failure to protest acts which are in-consistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.” 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158-59 (2009).

I. Plaintiffs’ Rights in Strawberry Lane

A. Deeded Rights

Plaintiffs claim to own the fee interest in Strawberry Lane. Plaintiffs refer to the 1968 Plans and 2007 Plan, which show Strawberry Lane as thirty-three feet wide, and argue that, based on the plans, Strawberry Lane consists of Disputed Area C, and twenty-three feet of Plaintiff Property, including a cul-de-sac between Lots 1, 2, and 3. However, whether Plaintiffs’ rights in Strawberry Lane include Disputed Area C depends on whether the creator of Strawberry Lane possessed an interest in the Syzmanski/Vigneault Property sufficient for him to include Disputed Area C in the fee in Strawberry Lane. [Note 21]

When Murphy deeded out Plaintiff Property to the Reeds, Richard H. and Robert C. Farmer owned the fee interest in the Syzmanski/Vigneault property, including Disputed Area C, and Murphy was only granted an easement to use Disputed Area C. As such, the Reeds and all subsequent owners of Plaintiff Property never had a fee interest in Disputed Area C. Based on the ownership rights of Murphy, who established Strawberry Lane, the width of Strawberry Lane could only have been twenty-three feet wide and could not include any portion of the Syzmanski/Vigneault Property since Murphy did not have any fee interest in the Syzmanski/Vigneault Property. In addition, it makes no sense to interpret Strawberry Lane as thirty-three feet wide in light of the express deeded easement rights in the Reed Deed over Disputed Area C. Such an interpretation would render those deeded rights in Disputed Area C superfluous, which seems an unreasonable result.

As a result, I find that Plaintiffs own a twenty-three foot wide fee interest in Strawberry Lane, which does not include Disputed Area C. [Note 22]

B. Defendants’ Claims of Prescriptive Use

Scarlatelli Obstructions Within Strawberry Lane

Trial testimony indicates that the Scarlatellis have obstructed a portion of the northerly area of Strawberry Lane (the area between the gravel drive accessing the Scarlatelli Property and the southerly boundary of the Scarlatelli Property) with a portion of the Hedgerow, two light posts, and three shrubs. The Scarlatellis testified at trial that they had no intent to pursue an adverse possession claim with respect to Strawberry Lane. [Note 23]

As such, I find that Plaintiffs own the fee interest in Strawberry Lane unencumbered by an adverse possession or prescriptive rights claim by the Scarlatellis, and that Plaintiffs have the right to demand the removal of any encumbrance within such way. [Note 24], [Note 25]

Syzmanski/Vigneault Obstructions Within Strawberry Lane

Based on the 2007 Plan, a portion of the Fence, lawn grass, and the Wooded Area are located within that portion of Strawberry Lane which lies adjacent to the Syzmanski/Vigneault Property. Syzmanski/Vigneault provide no evidence to suggest that these obstructions meet the twenty-year requirement for adverse possession; thus, Syzmanski/Vigneault fail to meet the burden of proof necessary to establish an adverse possession claim. [Note 26]

As such, I find that Plaintiffs own the fee interest in the portion of Strawberry Lane that lies adjacent to the Syzmanski/Vigneault Property unencumbered by an adverse possession or prescriptive rights claim of Syzmanski/Vigneault. As a result, Plaintiffs have the right to demand the removal of any encumbrance in such way. [Note 27]

C. Plaintiffs’ claims of adverse possession.

Plaintiffs stated at trial that they did not intend to claim any portion of Strawberry Lane by adverse possession (which would give them the right to exclude the deeded rights of others to use Strawberry Lane).

II. Plaintiffs’ Rights in the Disputed Area

Plaintiffs claim a deeded right to use the Disputed Area as access to Ryder’s Cove. Furthermore, Plaintiffs allege that they and their predecessors in title have allowed Defendants to place obstructions within the Disputed Area. Plaintiffs also contend that Defendants have not met the twenty-year statutory requirement to obstruct Plaintiffs’ rights in the Disputed Area. [Note 28] Defendants assert either a full or a partial extinguishment of Plaintiffs’ deeded rights in the Disputed Area. Specifically, Defendants claim that Plaintiffs’ vehicular rights in the Disputed Area have been lost though abandonment, acquiescence, or by Defendants’ adverse possession. As a result, Defendants reason that Plaintiffs’ rights, if not totally lost, are limited to pedestrian travel within the Disputed Area, around existing obstacles located therein.

A. Plaintiffs’ Rights in Disputed Area A

Plaintiffs claim a deeded right to use Disputed Area A to access the Recreational Area on foot and by vehicle. The Scarlatellis assert that Plaintiffs have abandoned such rights through non-use and through the Scarlatellis’ and their predecessors’ obstructions in Disputed Area A.

1. Deeded Rights in Disputed Area A

In interpreting easement language, “[i]t is well established that [d]eeds should be construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant.” Queler v. Skowron, 438 Mass. 304 , 311 (2002) (internal quotations and citations omitted). The parties’ intent “is gleaned from the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time [the deed] was executed.” Id. Additionally, “[e]very right necessary for the enjoyment of an easement is included in it by implication.” Mount Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937).

Plaintiffs’ title establishes a clear right to use the Recreational Area “for boating, bathing and other recreational activities.” While Plaintiffs’ title does not grant Plaintiffs an express deeded right in Disputed Area A to access the Recreational Area, the language used in Plaintiff Deed and in the Lonsdale Deed shows Murphy’s intent to establish an easement over Disputed Area A for the benefit of Plaintiff Property. Specifically, the language in Plaintiff Deed describes the boundary of the Recreational Area as the “northerly end of [Disputed Area A].” [Note 29] Furthermore, when Murphy deeded out the Scarlatelli Property to Richard H. Murphy, such deed referenced an easement over Disputed Area A for the benefit of Plaintiff Property. The Lonsdale Deed stated that

[s]aid Lot 3 [Scarlatelli Property] is subject to a right of way 10 feet in width along the easterly side thereof adjacent to land now or formerly of Richard H. Farmer et al, and the right to use 10 feet of the shore line of Ryder’s Cove at the northerly end thereof and in extension thereof for boating, bathing and other recreational activities all as appurtenant to Lot 1 [Plaintiff Property] as shown on said plan.

Additionally, implicit to Plaintiffs’ rights in the Recreational Area is the right to access over Disputed Area A. See Rice v. Vineyard Grove Co., 270 Mass. 81 , 86-87 (1930) (upholding the construction of a grant to use “all the beach in front of the . . . lot . . . for bathing purposes only,” as including the incidental “privilege of going to and from his premises over the intervening strip of bluff and beach upland belonging to the respondent.”). See also Murphy v. Olsen, 63 Mass. App. Ct. 417 , 424 (2005) (finding that a pedestrian easement “to the beach” included the right of pedestrian passage to such beach). [Note 30], [Note 31] This court may not, however, simply conclude with a finding that Plaintiff Property is benefitted by an implied easement across Disputed Area A. Rather, this court must determine whether Plaintiff Property’s right in Disputed Area A includes vehicular rights.

In this regard, it should be noted that the language used in Plaintiff Deed to reference rights in Strawberry Lane includes the right “for all purposes for which public ways are used in the Town of Chatham, including the right to install and maintain all the usual and necessary public utility services within the confines of said way.” Furthermore, the language in the deeds to both the Dart Trust and Syzmanski/Vigneault for the use of Disputed Area A also included the right “for all purposes . . . .” Contrastingly, the “for all purposes” language is absent from both the deed into the Scarlatellis and the Restrictive Covenant relative to the use of Disputed Area A. The fact that such language is not included within Plaintiff Deed is significant.

As a result of the foregoing, I find that Plaintiffs have an implied easement to use Disputed Area A for only pedestrian access to the Recreational Area.

2. Use of Disputed Area A.

The Scarlatellis first argue that, based on adverse possession, Plaintiffs are not entitled to use Disputed Area A for any purposes because Disputed Area A has been obstructed by natural vegetation including bushes covered with honeysuckle and poison ivy in addition to the Hedgerow, two deciduous bushes, a utility pole, one maple tree, a 2.5 foot wide hedgerow, sprinkler heads and water spigots, lawn grass, and two sets of wooden stairs. [Note 32] The only evidence which they produced in this regard, however, was the existence of the Hedgerow since at least 1977, based on the 1977 Photo. [Note 33] Relying on Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958), Plaintiffs argue, and this court agrees, that the preexisting, natural vegetation (including the shrubs that were once covered in honeysuckle and poison ivy which have since been removed by the Scarlatellis) cannot be used to establish adverse possession because it is unclear who planted the vegetation. [Note 34] Additionally, there is no evidence showing when such vegetation was planted.

Moreover, and relative to the Hedgerow, Plaintiffs claim that because they can still use Disputed Area A, the Hedgerow’s existence is not an act that is “utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement.” See New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931). In such regard, this court agrees. The trial record indicates that the Hedgerow did not completely block Plaintiffs’ pedestrian access to Disputed Area A. In fact, as discussed, supra, the 1977 Photo shows that the Hedgerow was much smaller and was a buffer between the Scarlatelli Property and the Dart Property. Even at its widest (six feet), the Hedgerow did not obstruct the entire ten-foot wide Disputed Area A. As such, the mere existence of the Hedgerow does not show a “lack of consent from the true owner.” Totman, 431 Mass. at 145. As further evidence that the Hedgerow was not an adverse use to Plaintiffs’ interest in Disputed Area A, Plaintiffs point to the Restrictive Covenant executed in 1990, by which the predecessor of the Scarlatellis acknowledged that the access easement was still in existence and intended for its access purpose.

With respect to the Scarlatellis’ claim that Plaintiffs have abandoned their interest in Disputed Area A, this court does not agree that the existence of the Hedgerow demonstrates Plaintiffs’ intent to release their rights or “never again to make use of” their easement in Disputed Area A. See Sindler, 348 Mass. at 592. The Hedgerow is not a physical obstruction that has rendered the use of the easement impossible. Contra Lund v. Cox, 281 Mass. 484 , 492-93 (1933). As a result, I find that the Scarlatellis have failed to limit Plaintiffs’ pedestrian easement rights in Disputed Area A through prescriptive use or abandonment, and, thus, Plaintiffs have the right to remove any encumbrances in such way that are inconsistent with Plaintiffs’ use of their pedestrian rights in Disputed Area A. [Note 35], [Note 36]

B. Plaintiffs’ Rights in Disputed Area B

1. Deeded Rights in Disputed Area B

Plaintiffs’ chain of title provides them with a right of way over Disputed Area B “for all purposes for which a way may be used.” Such rights are not limited to either a “public” or “private” way and are not cross-referenced to a particular definition of the term “way” found in a local bylaw. [Note 37] As such, this court must determine whether the purposes of a “way” include vehicular rights. In light of the broad language of Plaintiffs’ easement, a reasonable purpose for a “way” includes vehicular access. See e.g., Opinion of the Justices, 297 Mass. 559 , 561-62 (1937) (“Highways and other public ways commonly have been laid out and established by the Commonwealth, counties, towns, cities or districts. The public acquire by the location of such ways a right of passage for the purpose of travel over the land taken with all the powers and privileges necessarily implied as incidental to the exercise of that right.”).

As such, I find that Plaintiffs have full deeded rights to use Disputed Area B for all purposes of a way, including vehicular access.

2. Use of Disputed Area B

The Dart Trust argues that Plaintiffs are not entitled to use Disputed Area B for any access other than pedestrian access. It argues that Disputed Area B has been obstructed by a grass lawn and two scrub bushes for over twenty years. The testimony, however, fails to show that any of the obstructions existed for twenty years or more, as the Dart Trust does not provide this court with any credible evidence of when the existence of the obstructions became an adverse use. [Note 38] The Dart Trust took title to the Dart Property on December 30, 1996. Dart testified that he has maintained a lawn, pruned vegetation, and installed the stone retaining wall that supports decorative hydrangeas within Disputed Area B since 1996. Dart also testified that he removed portions of a paved driveway in Disputed Area B in 2004. Because Dart's adverse use covered, at most, an eight-year period prior to the filing of the Complaint, [Note 39] he must rely upon the conduct of his predecessors in title in order to succeed in his prescriptive rights claim. In this respect, Dart speculated that his predecessors maintained lawn grass and mature trees in Disputed Area B; however, Dart provides no foundation for such allegations.

As a result, I find that Dart has failed to limit Plaintiffs’ vehicular rights in Disputed Area B because he failed to show twenty consecutive years of exclusive use. [Note 40]

Defendants argue, in the alternative, that Plaintiffs and their predecessors in title acquiesced to a limitation of their vehicular rights in Disputed Area B. In other words, Defendants argue that Plaintiffs have abandoned their vehicular rights. Defendants rely heavily on the Restrictive Covenant, arguing that such covenant constitutes Avery’s acquiescence in the limitation of the easement on the Scarlatelli Property and Dart Property to pedestrian travel. However, the Restrictive Covenant does not demonstrate that Plaintiffs’ predecessors abandoned their rights to Disputed Area B.

In contending that Plaintiffs’ vehicular rights in Disputed Area B have been extinguished by abandonment, Dart bears the burden of proof to establish that Plaintiffs or their predecessors intended to abandon Disputed Area B. New York Cent. R.R. Co. v. Swenson, 224 Mass. 88 , 92 (1916). In that regard, Dart does not provide credible evidence to suggest that Plaintiffs or their predecessors in title ever intended to abandon the vehicle right of way over Disputed Area B. Dart’s vague generalizations about Plaintiffs’ intent do not approach the required intent to abandon the easement for “[i]n order to establish abandonment of easements . . . there must be ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.’” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (quoting Langhaar, 212 Mass. at 575). Simply stating that Plaintiffs or their predecessors in title abandoned vehicular use because they walked rather than drove on the easement, without pointing to a specific intent, is insufficient to sustain Dart’s burden. Langhaar, 212 Mass. at 575. Dart presented no evidence that Plaintiffs or their predecessors in title acted in a manner that demonstrated their intent to abandon the easement in Disputed Area B.

Armed with an easement in Disputed Area B, Plaintiffs seek the right to remove certain encumbrances from Disputed Area B. As owners of the servient estate, Dart retains the right to use Disputed Area B “for all purposes except those which are inconsistent with” Plaintiffs’ easement right. Ampagoomian v. Atarnian, 323 Mass. 319 , 322 (1948). With respect to Disputed Area B, the 2007 Plan shows that the two shrubs and the retaining wall (and the associated hydrangeas and garden) prohibit vehicular access along the northern end of Disputed Area B.

In light of the foregoing, I find that Plaintiffs shall have the right to demand the removal of the two scrub brushes, and the portion of the 1.3-foot wide stone retaining wall (and the associated hydrangeas and garden) located in Disputed Area B, as shown on the 2007 Plan, to the extent that such obstructions prohibit vehicular access along Disputed Area B. [Note 41]

C. Plaintiffs’ Rights in Disputed Area C

1. Deeded Rights in Disputed Area C

Plaintiffs’ chain of title provides Plaintiffs with a right of way over Disputed Area C “for all purposes for which a way may be used.” As discussed, supra, such language includes the right to vehicular access.

As such, I find that Plaintiffs have full deeded easement rights of access to Disputed Area C, including vehicular rights.

2. Use of Disputed Area C

Syzmanski/Vigneault argue that they and their predecessors have exercised adverse possession in Disputed Area C to prevent Plaintiffs’ vehicular use of such area. Disputed Area C contains a utility pole, the Wooded Area, a gravel driveway, the Fence, and lawn grass. Syzmanski/Vigneault took title to the Syzmanski/Vigneault Property from the Bockschs in 2006, yet they fail to provide any credible evidence of their predecessor’s use for purposes of proving that the obstructions within Disputed Area C have existed for greater than twenty years. [Note 42] As discussed, supra, the 1977 Photo does not allow this court to locate the Wooded Area in relation to either Strawberry Lane or Disputed Area C as they existed in 1977. Although the 2007 Plan shows vegetation in Disputed Area C and Strawberry Lane, it fails to establish when the Wooded Area began its encroachment.

As a result, I find that Syzmanski/Vigneault fail to limit Plaintiffs’ rights through adverse possession because they fail to demonstrate twenty consecutive years of exclusive use of Disputed Area C.

In the alternative, there is an argument that Plaintiffs and their predecessors in title abandoned their rights in Disputed Area C. Physical obstructions on the servient estate that prohibit the use of an easement by the dominant estate combined with a lack of objection by the dominant estate for an extended period of time can result in an inference that an easement has been abandoned. Cox, 281 Mass. at 492-93. As shown on the 2007 Plan, the Fence located in Disputed Area C is a continuous physical obstruction that prohibits access within Disputed Area C. The trial record does not indicate when the Fence was first installed. The first reference of the Fence in the record is December 1996 when Dart obtained the Dart Property. The issue, then, is whether Plaintiffs’ failure to object to the Fence from December 1996 to 2002 is sufficient for this court to infer their abandonment of their easement rights in Disputed Area C. Such time is much less than the temporal spans of acquiescence found in this court’s review of case law on the subject and is insufficient to infer abandonment on the part of Plaintiffs. See e.g., Lund, 281 Mass. at 492 (more than 20 years); Sindler v. William M. Bailey Co., 348 Mass. 589 , 592-93 (1965) (thirty-five years); Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 390-91 (1992) (fence constructed in 1966; action commenced in 1989).

With respect to the existence of the Wooded Area within Disputed Area C, the trial record is unclear whether trees grow within Disputed Area C or whether Disputed Area C is merely covered by the canopy of the Wooded Area growing from the Syzmanski/Vigneault Property. Furthermore, the trial record does not indicate when or who (if anyone) first planted the Wooded Area. Even if trees, in fact, grow within the Wooded Area on Disputed Area C, Plaintiffs’ failure to clear the Wooded Area of its natural vegetation is insufficient, by itself, to demonstrate an intent to abandon. Desotell, 338 Mass. at 158-59.

In light of the foregoing, I find that the trial record does not support a conclusion that Plaintiffs have abandoned their easement rights in Disputed Area C. As such, Plaintiffs shall have the right to demand the removal of any encumbrances that prohibit Plaintiffs’ vehicular access over Disputed Area C. [Note 43]

III. Plaintiffs’ Rights in the Recreational Area

Plaintiffs’ chain of title contains the following language with respect to the Recreational Area: “Together with the right to use 10 feet of the shore line of Ryder=s Cove for boating, bathing and other recreational activities.” Plaintiffs argue that this language includes the right to store a kayak and a dinghy on the beach within the Recreational Area during the boating season to facilitate their use of their easement and cite to Mount Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 (1937). The Scarlatellis do not dispute the existence of the Recreational Area; however, they argue that this does not include the right to store any form of a boat within the Recreational Area.

Under the express language of Plaintiffs’ easement in the Recreational Area, Plaintiffs have the right to use the Recreational Area for boating purposes. While “[e]very right necessary for the enjoyment of an easement is included in it by implication,” Mount Holyoke, 298 Mass. at 514, the question remains as to what rights are necessary to enjoy Plaintiffs’ boating easement. [Note 44] Relevant to this analysis is Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 (2001), where the Appeals Court was asked, in part, to determine whether a boating right included the right to moor boats. Id. at 364. The plaintiffs in Davis argued that because “boating” and “outdoor recreational activities” were permitted uses, such rights enabled them to “attach their boats to the existing launchway . . . .” Id. The Appeals Court, however, disagreed with the plaintiffs’ argument after thoroughly reviewing the term “boating.” Id. The court first looked to the dictionary for assistance and noted that the conventional definition of “boating” was “[t]o travel by boat . . . [t]o ride a boat for pleasure.” Id. (quoting The American Heritage Dictionary of the English Language 209 (3d ed. 1992)). The Appeals Court went on to state that the term “boating”

denotes a transient activity that would not normally create a spatial or physical obstruction to the boating of others; whereas the mooring or tying of a boat to a structure is stationary and of longer duration and necessarily creates a barrier to the boating and mooring rights of others entitled thereto.

Id. This rationale is applicable in the case at bar. While Plaintiffs’ hold the right to boat, their deeded easement does not grant them the express right to store boats on the beach. In the same manner that mooring a boat creates a barrier to the boating and mooring rights of others, the seasonal storage of a dinghy or kayak on the Recreational Area “involves an exclusion of others from a definitely ascertained geographic location for an indefinite, nonincidental period of time, and is therefore fundamentally different in purpose and character from ‘boating.’” Id. at n.19 (citing Seascape Assn., Inc. v. Cavaretta, 7 LCR 35 , (1999) (Misc. Case No. 177387) (Scheier, J.) (distinguishing the term “mooring” from “boating”)).

In light of the above, I find that Plaintiffs’ interest in the Recreational Area does not include the right to store a small dinghy or kayak during the boating season.

Judgment to issue accordingly.

Alexander H. Sands, III

Justice

Dated: August 11, 2009