Plaintiffs filed their unverified Complaint on June 23, 2004, seeking a declaratory judgment pursuant to G. L. c. 231A relative to rights in two ways (Clarissa Joseph Road in Bourne and Plymouth and Chamber Rock Road in Bourne), and alleging trespass pursuant to G. L. c. 185, § 1(o). Plaintiffs Complaint also challenged the applicability of certain provisions of the Bourne Zoning Bylaw (the Bylaw) under G. L. c. 240, § 14A. [Note 1] Defendants Roger M. LaPorte and Lynn E. LaPorte (the LaPortes) filed their Appearance on August 30, 2004, and a Motion to Dismiss on September 24, 2004, alleging res judicata, lack of jurisdiction, and statute of limitations. Defendant Richard L. Flynn filed his Answer on September 1, 2004. [Note 2] The Ship Pond Trust, filed its Answer on September 2, 2004. Old Centre and J. Scott Cimeno, Trustee of LMC Realty Trust, filed their Answer and Counterclaim on September 22, 2004, alleging rights in both Clarissa Joseph Road and Chamber Rock Road. Plaintiffs filed their Answer to Counterclaim on December 8, 2004. [Note 3] The Cape Cod Five Cents Savings Bank and Bank of America, N.A. filed Answers on June 25, 2007. [Note 4]
A pre-trial conference was held on June 29, 2005, at which time a Stipulation of Dismissal was filed with respect to the Municipal Defendants. A Default Judgment was entered against Defendants Robin L. Cote and Richard J. Silvestro on February 22, 2006. A second pre-trial conference was held on April 23, 2008. Plaintiffs filed a Motion in Limine to Exclude certain Trial Exhibits on August 10, 2008, and again on the first day of trial. A site view and the first day of trial at the Plymouth Superior Court were held on August 12, 2008. At that time, this court excluded the minutes of the Bourne Planning Board and certain newspaper articles as exhibits, and took under advisement the admissibility of a book of the history of the Town. The second day of trial was held at the Land Court in Boston on August 13, 2008. At the conclusion of the LaPortes case in chief, Plaintiffs filed a Motion for a Required Finding, which this court took under advisement pending review of the numerous trial exhibits. Plaintiffs Post-Trial Memorandum was filed on October 14, 2008. The LaPortes Post-Trial Brief was filed on October 15, 2008, at which time the matter was taken under advisement.
Trial testimony was given by the LaPortes witnesses Virginia Anderson (Anderson) (neighbor), Donald Ellis (Ellis) (former member of Bourne Planning Board), and Charles Rowley (Plaintiffs registered land surveyor as hostile witness); Plaintiffs trial witness included Charles Rowley (registered land surveyor). Fifty-six trial exhibits were submitted (some in multiple parts), including Affidavits of Douglas and Lidia Manter and Richard and Ellen Moore (Plaintiffs), and deposition transcript of Barbara Condon (Condon) (neighbor).
Based on agreed facts, sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. Plaintiffs own and reside at 41 Clarissa Joseph Road in Bourne, Massachusetts (Plaintiff Property). Plaintiff Property is located at the northwesterly corner of the intersection of Clarissa Joseph Road and Chamber Rock Road in Bourne (Clarissa Joseph Road is the easterly boundary of Plaintiff Property, and Chamber Rock Road is a portion of the southerly boundary). Plaintiff Property is shown as Lots 15 and 15.1 on Plan of Land at Clarissa Joseph Road and Chamber Rock Road Bourne, Massachusetts dated May 13, 2003, and prepared for Plaintiffs by Land Management Systems, Inc. Plaintiff Property is also shown as Lots 4A-1 and 4C-1 on plan titled Plan of Division of Lots 4A & 4C into Lots 4A-1 & 4C-1 for Deane G. & Jane M. Anderson in Bournedale, Bourne dated April 4, 1974 and prepared by Newell B. Snow, R.L.S (the 1974 Plan). [Note 5]
2. The LaPortes own and reside at 49 Clarissa Joseph Road, Bourne (the LaPorte Property). The LaPortes received a deed from Old Centre dated March 24, 2003, recorded with the Registry as Document No. 913095 on Certificate No. 168659. The deed stated:
So much of said land as is included within the limits of Clarissa Joseph Road is subject to the rights of all persons lawfully entitled thereto in and over the same, including, but not limited to right of Douglas Manter and Lydia Manter, their successors and assigns to pass and repass over said Clarissa Joseph Road, to and from said land and Sandy Pond Road.
The LaPorte Property abuts Plaintiff Property to the north, and is shown as Lot 8 on plan titled Lot 1, Land Court Case 42310A Clarissa Joseph Road, Bourne, MA dated January 9, 2003, by Canal Land Surveying (Registration Plan No. 42310B). Registration Plan No. 42310B, dated January 12, 2003, and filed with the Land Court on March 21, 2003, showed Clarissa Joseph Road as the easterly boundary of the LaPorte Property. [Note 6] The LaPorte Property is also shown as a part of Lot 1 on plan titled, Plan of Land in Bourne dated May 2, 1989 and prepared by Doyle Engineering Associates, Inc. (Registration Plan No. 42310A).
3. A Map of Herring Pond Lands resulting from an Act concerning the Plantation of Herring Pond passed April 6, 1850 (the 1850 Plan), shows Clarissa Joseph Road at its intersection with Sandy Pond Road and extending southerly to property of Town of Bourne but not to Bournedale Road. The 1850 Plan subdivided the Herring Pond Lands into a number of wood lots. Wood Lot 3 included the LaPorte Property. Wood Lot 4 included Plaintiff Property.
4. In 1989, Lester Anderson (Anderson), owner of property which directly abutted Plaintiff Property to the south (the Anderson Property), [Note 7] established a subdivision of his property called Farmview Acres on Chamber Rock Road (the Anderson Subdivision). [Note 8] As a part of this subdivision, Chamber Rock Road was relocated to the east of its historical layout. The Anderson Subdivision included a subdivision road named Anderson Lane that connected with the new Chamber Rock Road.
5. As part of litigation in the Land Court related to the Anderson Subdivision, Virginia L. Anderson (a Defendant in that case), owner of the Anderson Property, stipulated that she has no legal right to use that portion of Chamber Rock Road which continues northerly beyond Locus [the Anderson Property] to Clarissa Joseph Road and Plaintiffs respective properties. See Manter v. Bourne Planning Bd., Misc. Case No. 203552, 3 LCR 41 (1995). [Note 9]
6. There has been other trial court litigation involving issues of the use of Clarissa Joseph Road and Chamber Rock Road. See Shaker v. Manter, Barnstable Superior Court, No. 95-777 (the Superior Court Case). In Shaker, the Manters placed a locked gate across Clarissa Joseph Road, attempting to prevent non-owners of property on Clarissa Joseph Road from using the road to go north toward Sandy Pond Road. The plaintiffs in that case (owners of property on Chamber Rock Road to the south of Plaintiff Property), even though they had keys to the gate, found the gate an obstacle to access on Clarissa Joseph Road. The court found, by Order for Judgment with Findings dated August 27, 1998 (the Superior Court Order), that Clarissa Joseph Road is not a public way but is a private way for accessing lots in the Herring Pond Lands and has held that status since 1850; and that the owners of land on Clarissa Joseph Road, their agents, tenants, guests, business invitees and licensees have the right to pass and repass as pedestrians and in vehicles over Clarissa Joseph Road having such right as a private right of way. [Note 10]
7. In approximately 1987 to 1989, ten individuals (who are now deceased) executed an undated document prepared by Anderson stating that they previously used Chamber Rock Road as an ancient way that runs from Bournedale Road connecting to Clarissa Joseph Road. [Note 11]
8. The portion of Chamber Rock Road which intersects with Bournedale Road is shown on a plan titled Plan of Bay Woodlots in Bourne dated July 1, 1940, and prepared by Newell B. Snow.
Prior to addressing the merits of the case at bar, this court must first speak to two preliminary issues. First, at trial Plaintiffs filed a Motion for a Required Finding at the close of the LaPortes evidence. At that time, this court indicated that it would have to review the extensive exhibits submitted into evidence. As a result, Plaintiffs Motion for a Required Finding was effectively denied at trial; to the extent that it was not expressly denied at such time, Plaintiffs Motion for a Required Finding is hereby DENIED. Second, at trial this court provided the parties with the opportunity (as part of their post-trial briefs) to address Plaintiffs motion in limine concerning the admissibility of a book on the history of the Town of Bourne. Neither party discussed such issue in their post-trial briefs. This court reviewed the book and the book appears to be a book of lore about the Town. As a result, this court shall not shall accept such book as evidence, and Plaintiffs Motion in Limine is ALLOWED IN PART, with respect to the book on the history of the Town of Bourne.
The central issue in this case is whether the LaPortes possess rights in the portions of Clarissa Joseph Road and Chamber Rock Road abutting Plaintiff Property, to which Plaintiffs possess the fee interest. [Note 12] While Plaintiffs allege that the LaPortes have no easement rights in either road, the LaPortes assert the right to use the portions of both roads, claiming public prescriptive rights, easement by estoppel, rights in an ancient way, and rights from the Superior Court Case. The LaPortes also argue that Plaintiffs have the burden of proof in this regard. I shall look at each of these issues in turn.
I. Plaintiffs Fee Ownership Pursuant to the Derelict Fee Statute.
Plaintiffs argue that they have a fee interest to the centerline of the portions of Clarissa Joseph Road and Chamber Rock Road abutting Plaintiff Property pursuant to G. L. c. 183, § 58. The LaPortes do not take a position relative to the fee interest in their post-trial brief.
G. L. c. 183, § 58, the so-called Derelict Fee Statute (Section 58) sets out an authoritative rule of construction for instruments passing title to real estate abutting a way. [Note 13] Emery v. Crowley, 371 Mass. 489 , 492 (1976); Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 802 (2003). Through Section 58, the legislature codified common law and mandate[d] that every deed of real estate abutting a way includes the fee interest of the grantor in the wayto the center line if the grantor retains property on the other side of the way or for the full width if he does notunless the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992). [Note 14]
As the trial record fails to demonstrate a countervailing intent, this court agrees with Plaintiffs conclusion that Section 58 confers to them the fee interest to those portions of Clarissa Joseph Road and Chamber Rock Road that abut Plaintiff Property. As a result of the foregoing, for purposes of this case, and between these parties, I find that pursuant to Section 58, Plaintiffs own the fee interest to the centerline of those portions of Clarissa Joseph Road and Chamber Rock Road that abut Plaintiff Property. Such fee ownership, however, does not dictate the rights of use of Clarissa Joseph Road, as the derelict fee statute pertains only to the question of ownership of the fee. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005).
II. Burden of Proof.
The LaPortes argue that Plaintiffs, because they are the party that brought the suit, have the burden of proof to show that the LaPortes do not have the right to use Clarissa Joseph Road and Chamber Rock Road. Plaintiffs argue otherwise, and this court agrees with Plaintiffs position. The law is clear in Massachusetts that the party who is attempting to establish an easement across anothers land has the burden of proof. See Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 n.1 (2006) (quoting Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990)). This includes the burden of proving the nature and extent of any such easement. Id. (quoting Levy v. Reardon, 43 Mass. App. Ct. 431 , 434 (1997)). As a result, I find that the LaPortes have the burden of proof to show that they have easement rights in the portions of Clarissa Joseph Road and Chamber Rock Road to which Plaintiffs own the fee interest and that abut Plaintiff Property.
III. Easement Rights in Clarissa Joseph Road.
The LaPortes first argue that they have rights to Clarissa Joseph Road as members of the public under the a theory of public way by prescription. The LaPortes next contend that Clarissa Joseph Road has existed since at least 1850, based on the 1850 Plan, and therefore the road is an ancient way in which the public has rights. [Note 15] The LaPortes also assert rights through the doctrine of easement by estoppel. Finally, the LaPortes claim that the Superior Court Case should affect this courts analysis with respect to whether they have rights to Clarissa Joseph Road and Chamber Rock Road.
Plaintiffs claim that the LaPortes have not produced evidence to show that the public has used, or obtained a prescriptive right in, Clarissa Joseph Road, or that the Town has taken corporate action relative to making the road a public road. Plaintiffs also assert that whether a way is ancient is not determinative as to its status as a public or private way. Moreover, Plaintiffs argue that the parties chains of title do not support easements by estoppel or implication. Finally, Plaintiffs state that the Superior Court Case is not preclusive to the case at bar.
A. Public Prescriptive Rights.
It is well settled that the creation of a public way by adverse use depends on a showing of actual public use, general, uninterrupted, continued for [the prescriptive period]. Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 84 (1979) (quoting Jennings v. Tisbury, 5 Gray 73 , 74 (1855)).
That there was continued use by the public for more than twenty years does not in itself raise a presumption that such use was adverse. To establish such a 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.
Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969) (quoting Bullukian v. Franklin, 248 Mass. 151 , 155 (1924)). [D]etermining whether a public way has been established by prescription over a private way is a matter of considerable general public interest and concern, and the case law erects a high bar to making such a showing. Stone v. Garcia, 15 LCR 640 , 647-48 (2007) (Misc. Case No. 260887) (Piper, J.).
The LaPortes argue that in 1850, Clarissa Joseph Road extended from what is now Sandy Pond Road in Plymouth to Bournedale Road in Bourne, giving them a public easement by prescription in the road. [Note 16] They first point to the 1850 Plan, which shows Clarissa Joseph Road in existence from what is now Sandy Pond Road to approximately 1,000 feet south of Plaintiff Property, where it dead-ends (which point is approximately 2,100 feet from Bournedale Road). [Note 17] The LaPortes also rely on the testimony of Ellis, Anderson, and Condon concerning their use of Clarissa Joseph Road and Chamber Rock Road as access to Bournedale Road. Specifically, Anderson and Ellis testified as to their use of such route in 1984 and 1951-1952, respectively. Their testimony indicated travel by car from what is now Sandy Pond Road to Bournedale Road using Clarissa Joseph Road to its intersection with Chamber Rock Road, and then Chamber Rock Road to Bournedale Road. Ellis also testified that he would walk the length of both roads from Sandy Pond Road to Bournedale Road in the 1950s. Barbara Condon (who was unavailable at trial) provided deposition testimony that she rode (by horse and cart) on the same route from 1930-1995. Finally, the LaPortes look to the petition prepared by Anderson, in which ten individuals indicated that, prior to 1987-1988, they kn[e]w of, have used, and recognize Chamber Rock Road, an ancient way that runs from Bournedale Road connecting to Clarissa Joseph Road, in Bourne.
In short, such testimony is insufficient to convince this court that Clarissa Joseph Road is subject to public prescriptive rights. First, the testimony concerning use of such way shows only sporadic use by a limited number of individuals and does not demonstrate continuous or uninterrupted public use of the way. See Rivers v. Warwick, 37 Mass. App. Ct. 593 , 597 (1994). [Note 18] While Condons deposition reflects use of the way for well more than twenty years, it is the testimony of an isolated individual and fails to establish adequate public use. Moreover, even if the LaPortes were able to establish that members of the public actually used Clarissa Joseph Road in an uninterrupted and continuous manner for at least twenty years, the record does not indicate a public claim of right as required in Boxborough, 356 Mass. at 490, supra, under which members of the public used Clarissa Joseph Road. As a result, I find that the LaPortes have failed to satisfy their burden to prove a public prescriptive easement in the portion of Clarissa Joseph Road that abuts Plaintiff Property.
B. Ancient Way.
The LaPortes appear to argue that the existence of Clarissa Joseph Road on the 1850 Plan makes it an ancient way and, thus, automatically subject to public rights. The LaPortes also refer to language in the deeds in Plaintiffs chain of title in support of their argument that Clarissa Joseph Road is an ancient way. [Note 19] Plaintiffs disagree with the LaPortes argument that all ancient ways are public ways and claim that it is possible for a road to be ancient without being subject to public rights.
Case law supports Plaintiffs argument as [a]ge by itself is a neutral factor, there being ancient private, as well as ancient public, ways; . . . Fenn, 7 Mass. App. Ct. at 85. As such, the relevant inquiry into whether the general public holds rights in Clarissa Joseph Road is not whether such way is ancient, but rather whether it is public. To the extent that the LaPortes argue that the mere existence of Clarissa Joseph Road on the 1850 Plan results in such way being an ancient or public way,
[i]n general, it may be said that an existing way in a city or town in this Commonwealth is not a public way . . . unless it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute . . . ; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal . . . , coupled with an express or implied acceptance by the public.
Id. at 83-84 (internal citations omitted). Neither party claims that Clarissa Joseph Road (or Chamber Rock Road) was either laid out pursuant to statute or publically dedicated prior to 1846. As such, the only manner in which either road could be considered public is through prescription, as discussed supra. In light of the above, I find that the LaPortes have failed to establish rights as an ancient way in the portion of Clarissa Joseph Road that abuts Plaintiff Property. [Note 20]
C. Easement by Estoppel.
The LaPortes argue that they have obtained an easement by estoppel in Clarissa Joseph Road, [Note 21] and reason that because the LaPorte Property abuts Clarissa Joseph Road, that have the right to use such road for its entire length. Plaintiffs assert that whether an easement by estoppel exists is a matter of the intent of the common grantor, and that such intent is absent here.
Case law reveals two different theories under which a parcel of land may be conferred rights in a way under the doctrine of easement by estoppel. The first theory is based on a recorded plan. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (stating that where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.). [Note 22]
The second theory under which a land owner may obtain easement by estoppel rights, which is relevant to this case, occurs
when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny 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, as it is then laid out or clearly indicated and prescribed.
Casella v. Sneierson, 325 Mass. 85 , 89 (1949). This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965). When such rights are obtained, their extent beyond the limits of [the owners] land will depend upon, and may be shown by, extrinsic facts, as they existed at the time of the conveyance. Casella, 325 Mass. at 91 (quoting Frawley v. Forrest, 310 Mass. 446 , 451 (1941)). Moreover, it is a general principle of deed interpretation that in construing a deed, a court must ascertain the intent of the parties from the language used in the light of the surrounding circumstances. Brackett v. Pitcher, 296 Mass. 295 , 297 (1936).
In the case at bar, the LaPortes cannot rely on either a recorded plan or deed. With respect to plans, the 1850 Plan, in which the common grantor separated the ownership of lots containing Plaintiff Property and the LaPorte Property, shows Clarissa Joseph Road extending only to the southerly end of the Herring Pond Lands (approximately 1000 feet south of the intersection of Clarissa Joseph Road with Chamber Rock Road), where it dead-ends. This is a significant distance from Bournedale Road, the nearest public road to the south. Moreover, Plaintiffs registered land surveyor, Charles Rowley, testified that he found no evidence that in 1850 Clarissa Joseph Road extended to Bournedale Road. The LaPorte Property is shown for the first time as a separate lot on Registration Plan 42310B dated January 9, 2003, which only shows a portion of Clarissa Joseph Road. The prior registration plan, Registration Plan 42310A, only shows Clarissa Joseph Road extending north to intersect with Sandy Pond Road. [Note 23] As such, under the Goldstein rationale, there is no recorded plan showing Clarissa Joseph Road extending south to intersect with Bournedale Road.
With respect to the theory espoused in Casella, the fact that Clarissa Joseph Road was not laid out to Bournedale Road, while not determinative, see Murphy, 348 Mass. at 678, is strongly instructive to this court as to the common grantors intent in light of the trial record, which is barren of any evidence that the common grantor contemplated Clarissa Joseph Road as providing access to Bournedale Road. Moreover, the LaPortes cannot obtain more rights than the rights of their predecessors in title. Their predecessor in title, the Ship Pond Trust, did not own any portion of Clarissa Joseph Road to the south of the LaPorte Property, as shown on Registration Plan 43210A. [Note 24] As a result of the foregoing, I find that the LaPortes do not have an easement by estoppel to travel south of the LaPorte Property on the portion of Clarissa Joseph Road abutting Plaintiff Property.
D. Easement Implied From Prior Use.
While the LaPortes do not argue expressly that they have an implied easement (from prior use), Plaintiffs briefed the issue as part of their argument concerning an easement by estoppel. As the party that would assert the implied easement, the LaPortes have the burden of proof to show such easement. See Reagan v. Brissey, 446 Mass. 452 , 458 (2006). Implied easements have been recognized when
land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part.
Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 656-57 (2005) (internal quotations and citations omitted). [Note 25]
While the parties respective properties were held in common ownership prior to 1850 (the year in which the LaPorte Property and Plaintiff Property were separated), the LaPortes do not provide evidence of use of Clarissa Joseph Road prior to 1850 for the benefit of the LaPorte Property. Moreover, whereas an implied easement requires a showing of reasonable necessity, the trial record indicates that use of the portion of Clarissa Joseph Road abutting Plaintiff Property was not necessary for the enjoyment of the LaPorte Property, as the LaPorte Property possessed access to a public way by traveling north on Clarissa Joseph Road. Finally, the record before this court is absent as to an intent to burden Plaintiff Property with an easement appurtenant to the LaPorte Property providing access to the south on Clarissa Joseph Road, as the prior owner did not own any portion of the road beyond the Herring Pond Lands. See discussion, supra. As a result, I find that the LaPortes do not have an easement by implication to travel south of the LaPorte Property on the portion of Clarissa Joseph Road abutting Plaintiff Property.
E. Res Judicata.
The LaPortes look to the doctrine of res judicata to argue that the Superior Court Case is determinative as to the right of the LaPortes to use Clarissa Joseph Road to travel south of their property to Bournedale Road. [Note 26] Res judicata consists of both claim preclusion and issue preclusion. Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 843 (2005). Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the action. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006) (quoting Jarosz v. Palmer, 436 Mass. 526 , 530-31 n.3 (2002)). The theory behind claim preclusion is that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit. Kobrin, 444 Mass. at 843. Claim preclusion requires: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits. Petrillo, 65 Mass. at 457 (quoting DaLuz v. Dept of Corr., 434 Mass. 40 , 45 (2001)).
Issue preclusion (also known as collateral estoppel) prevents the relitigation of issues actually litigated in the prior action. Kobrin, 444 Mass. at 844. Collateral estoppel provides that [w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Pierce v. Morrison Mahoney LLP, 452 Mass. 718 , 729-30 (2008) (quoting Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366 , 372 (1985)). It requires: (1) a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. Kobrin, 444 Mass. at 843 (quoting Tuper v. N. Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998)).
In the Superior Court Case, the Shakers, in part, sought a declaration that they had a legal right to pass over Clarissa Joseph Road from their house (which is located to the south of Plaintiff Property and the Manters property) to the Town of Plymouth, to the north. The Barnstable Superior Court found that owners of lots in the Herring Pond Lands (of which both Plaintiffs and the LaPortes are members) had the right to use Clarissa Joseph Road as access to their properties. However, the Superior Court Case is binding only on the Shakers and the Manters, neither of which are in privity with the LaPortes or Plaintiffs. Thus, I find that the Superior Court Case is neither claim preclusive nor issue preclusive with respect to the rights of either Plaintiffs or the LaPortes to use Clarissa Joseph Road. Moreover, even if the doctrine of res judicata were applicable, the focus of the Superior Court Case was the Shakers access to the north along Clarissa Joseph to the Town of Plymouth and Sandy Pond Road, not southerly access. The Superior Court Case only provides rights in Clarissa Joseph Road for accessing lots in the Herring Pond Lands, and the Herring Pond Lands include only lots in the vicinity of Sandy Pond Road and not Bournedale Road. [Note 27]
IV. Easement Rights in Chamber Rock Road.
In their post-trial brief, the LaPortes acknowledge that the LaPorte Property cannot benefit from an easement by estoppel, implication, or necessity over Chamber Rock Road because they lack a common grantor with Plaintiffs and because the LaPorte Property does not abut Chamber Rock Road. Even so, the LaPortes allege that Chamber Rock Road is subject to a public prescriptive easement because it has been used by members of the public since the 1920s. [Note 28] However, as previously discussed, the LaPortes fail to produce sufficient evidence to this effect. See supra pp. 10-12. The fact that several individuals have used the way over time does not create a public way. Similarly, the fact that the LaPortes rely on language in deeds in Plaintiffs chain of title is also not persuasive. As such, I find that the LaPortes have failed to satisfy their burden to prove a public prescriptive easement in the portion of Chamber Rock Road that abuts Plaintiff Property.
In their Complaint, Plaintiffs allege that the LaPortes are guilty of trespass to the portions of Clarissa Joseph Road and Chamber Rock Road at issue in this case. They seek only an injunction prohibiting the LaPortes from trespassing on the ways at issue in this case. In both their pre-trial memorandum and in their post-trial brief, Plaintiffs do not argue trespass. As a result, this court will not address this issue.
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: April 8, 2010
[Note 1] As a result of the Motion to Dismiss filed by the LaPortes (discussed, infra), which was withdrawn on May 16, 2005, Plaintiffs filed an Amended Complaint on May 9, 2005, withdrawing their challenge to the Bylaw and removing Defendants Roger M. LaPorte as Building Inspector of the Town of Bourne and the Town of Bourne (Town) (together, Municipal Defendants) as Defendants. On April 7, 2006, Plaintiffs filed a Motion to Add Michael Kneeland and Kendra Kneeland (the Kneelands) as Parties Defendant by Reason of Their Purchase of Real Estate From Defendants Michael P. Goodman and Roger C. Zoebisch, as Trustees of Ship Pond Nominee Trust (the Ship Pond Trust). This court allowed such motion on April 20, 2006. On May 13, 2008, Plaintiffs filed a Stipulation of Dismissal with Prejudice as to the Ship Pond Trust. The record does not include any dismissal or judgment with respect to the Kneelands; however, the Kneelands did not participate in trial and are therefore defaulted by this court.
Plaintiffs filed a Second Amended Complaint on July 26, 2006, adding Kanwal Thiara and Manjit Thiara (the Thiaras) as Defendants to replace Old Centre Homes, Inc. (Old Centre) due to purchase by foreclosure deed. A Default Judgment was entered against the Thiaras on January 18, 2007.
Plaintiffs filed a Third Amended Complaint on August 28, 2006, adding Deutsche Bank National Trust Company (Deutsche Bank) as a Defendant. The Third Amended Complaint does not appear to have been docketed. A Limited Default Judgment was entered against Deutsche Bank on July 26, 2007.
Plaintiffs filed a Fourth Amended Complaint on May 24, 2007, adding the following mortgagees of record: Plymouth Savings Bank, Cape Cod Five Cents Savings Bank, Bank of America, N.A., Wells Fargo Home Mortgage, Inc. (Wells Fargo), Mortgage Electronic Registration Systems, Inc. (MERS), Harborone Credit Union, National City Bank, and Mayflower Cooperative Bank as Defendants. On April 29, 2008, a Voluntary Dismissal was filed as to Harborone Credit Union and Mayflower Cooperative Bank. Wells Fargo and MERS filed their Answer on May 12, 2008. A Default Judgment was allowed as to Plymouth Savings Bank, MERS, and National City Bank on May 13, 2008. A Stipulation of Dismissal as to Wells Fargo was filed on June 30, 2008.
[Note 2] A Default Judgment was entered against him on January 13, 2006.
[Note 3] A Voluntary Dismissal as to Old Centre and J. Scott Cimeno, Trustee of LMC Realty Trust was allowed on June 2, 2008.
[Note 4] A Limited Stipulation of Dismissal concerning Bank of America, N.A. was filed on May 13, 2008. A Stipulation of Dismissal with Prejudice as to Cape Cod Five Cents Savings Bank was filed on July 29, 2008.
[Note 5] Plaintiffs received title to Plaintiff Property by three deeds, the first for Lot 4A-1 from Jane M. Anderson dated June 27, 1985, and recorded with the Barnstable County Registry of Deeds (the Registry) at Book 4599, Page 263; the second for Lot 4C-1 from Allan F. Beth and Karin S. Beth dated November 3, 1998, and recorded with the Registry at Book 11843, Page 138; and the third a deed of all our right, title and interest, including the fee in the streets and ways of land shown on the 1974 Plan, from Jane OShaughnessy (f/k/a Jane M. Anderson) dated March 19, 2003, and recorded with the Registry at Book 16659, Page 37.
The deeds for Lot 4A-1 and Lot 4C-1 both state the following: Clarissa Joseph Road is a way established in 1850 to provide access to the various lots on the 1850 division of Herring Pond land. Further, Clarissa Joseph Road is an ancient way having been in public use for over fifty (50) years.
[Note 6] The LaPortes purchased the LaPorte Property (Lot 8) from Old Centre by deed dated March 10, 2004. Old Centre purchased Lot 1 (which included Lots 8-10) from the Ship Pond Trust, by deed dated March 17, 2003. The Ship Pond Trust purchased six lots, including Lot 1 (the Ship Pond Property), from Mario A. Venditelli, as Trustee of A.J. Tyler Real Estate Trust (the A.J. Tyler Trust), by deed dated September 18, 2002. The A.J. Tyler Trust purchased the Ship Pond Property from Abbey Door Estates, Inc. by deed dated December 22, 1988.
[Note 7] The Anderson Property is shown as Lot 1 on plan titled Plan of Land Prepared for Lester Anderson in Bourne dated April 12, 1989, and prepared by Holmes and McGrath, Inc.
[Note 8] The Anderson Subdivision is shown on a plan titled Definitive Plan Prepared for Lester Anderson in Bourne dated June 16, 1989, prepared by Holmes and McGrath, Inc.
[Note 9] Douglas W. Manter and Lydia J. Manter (the Manters) own property on the easterly side of Clarissa Joseph Road opposite both Plaintiff Property and the LaPorte Property.
[Note 10] The Superior Court Order also stated that [i]nsofar as it is relevant to these proceedings, Chamber Rock Road is found to be a private right of way with use of same extending only to owners of lots on Chamber Rock Road and Clarissa Joseph Road, and that Clarissa Joseph Road is an unpaved, roughly-graded, dirt road in the Bournedale section of Bourne. The Superior Court Order also found that [t]he traveled way is that portion of the road that has been roughly graded over the years for the passage of vehicular traffic.
[Note 11] This undated document includes the signatures of more than 100 people. At trial, the LaPortes moved to admit ten signatures into the trial record, based on the testimony of Anderson, who spoke of the specific deaths of ten of the people who signed the petition, and G. L. c. 233, § 65 (excepting the declaration of a deceased person from hearsay if the court finds that it was made in good faith and upon the personal knowledge of the declarant.). The remainder of the signatures on the petition were inadmissible as hearsay.
[Note 12] Not all parties with an interest in those portions of Clarissa Joseph Road and Chamber Rock Road that are at issue in the case at bar are parties to this case. More specifically, the owners of land adjacent to Plaintiff Property, along the eastern side of Clarissa Joseph Road and along the southern side of Chamber Rock Road, are not parties here. As this court is unable to make findings with respect to the rights of nonparties, it is noteworthy that this decision is only binding as to the respective rights of Plaintiffs and the LaPortes. Throughout this decision, this court makes no determination as to either Plaintiffs or the LaPortes rights with respect to any nonparty.
[Note 13] G. L. c.183 § 58 states, in relevant part:
[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 . . . , unless (a) the grantor retains other real estate abutting such way . . . , in which case, . . . (ii) if the retained real estate is on the other side of such way . . . , the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a sideline.
[Note 14] The policy behind Section 58 is to meet a situation where a grantor has conveyed away all of his land abutting a way . . . , but has unknowingly failed to convey any interest he may have in land under the way . . . , thus apparently retaining his ownership of a strip of the way . . . . Hanson v. Cadwell Crossing LLC, 66 Mass. App. Ct. 497 , 501 n.7 (2006) (quoting Rowley, 438 Mass. at 803).
[Note 15] The burden of proof to show that a way is a public way falls upon the party asserting such claim. Schulze v. Huntington, 24 Mass. App. Ct. 416 , 417 (1987).
[Note 16] The LaPortes conceded at the commencement of the trial that they did not intend to argue a private easement by prescription.
[Note 17] The estimated distances are taken from a chalk (identified as Chalk C) used during trial. The trial record fails to include any plan of record showing Clarissa Joseph Road continuing from Sandy Pond Road to Bournedale Road.
[Note 18] In Rivers, 37 Mass. App. Ct. at 597, the Appeals Court determined that
[t]he evidence in this case made out, at best, sporadic use of the discontinued roads by the public for recreational purposes. The plaintiff Robert Rivers testified to occasional lumbering operations, frequent use by hunters, nature viewers, skiers, relatives visiting the Riverses house (presumably over the portion of Wilson Road not discontinued), and occasional cars traveling into the woods.
[Note 19] See supra note 5.
[Note 20] Moreover, mere reference to language in Plaintiffs chain of title to Clarissa Joseph Road being ancient or public does not make the fact so. Though not controlling, the Superior Court Case found that Clarissa Joseph Road was a private way.
[Note 21] The LaPortes did not argue easement by estoppel in either their pre-trial memorandum or in their post-trail brief (but Plaintiffs argue against this in their post-trial brief); however, the LaPortes did argue this in their opening statement at trial.
[Note 22] [W]here land is conveyed with reference to a plan, an easement other than an easement of necessity is created only if clearly so intended by the parties to the deed. Rahilly v. Addison, 350 Mass. 660 , 662 (1966). (citing Regan v. Boston Gas Light Co., 137 Mass. 37 , 43 (1884)) (The purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties.).
In determining the intent, the entire situation at the time the deeds were given must be considered. For example, whether the ways in question merely existed on paper, or were then constructed on the ground; whether they were then actually used as appurtenant to the granted premises; or whether they were remote or in close proximity.
Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (1920) (discussing an easement by estoppel in context of a plan reference within a deed).
[Note 23] The use of Clarissa Joseph Road going north from the LaPorte Property is not an issue in this case.
[Note 24] In 1850, when the Herring Pond Lands were split off, Plaintiff Property was a part of Wood Lot 4, and the LaPorte Property was a part of Wood Lot 3. Wood Lot 3 was bordered by Sandy Pond Road on the north and Clarissa Joseph Road on the east. Wood Lot 4 was bordered by Clarissa Joseph Road on the east and Chamber Rock Road on the south.
[Note 25] An implied easement
arises not so much from necessity alone as from the presumed intention of the parties . . . . That presumed intention is to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.
. . . . [T]he presumption of intent in such cases is a presumption of law which ought to be and is construed with strictness.. . . .
Zotos, 63 Mass. App. Ct. at 657 (internal citations omitted).
[Note 26] While such argument was touched upon during trial, the LaPortes appear to waive the argument of res judicata in their post-trial brief.
[Note 27] As discussed, supra, there are no plans in the trial record which show Clarissa Joseph Road as intersecting with Bournedale Road.
[Note 28] The LaPortes also contend that Plaintiffs have the same right as they do to use Chamber Rock Road, and without these rights, Plaintiffs have no right to use the road either. However, the issue of Plaintiffs use of Chamber Rock Road as access to Bournedale Road is not before this court.