MISC 08-377250

August 11, 2010


Trombly, J.



The Plaintiffs and Defendant are abutting landowners, owning residential dwellings near a beach in Wellfleet Harbor in the Town of Wellfleet, Massachusetts. Plaintiffs’ septic system is located on Defendant’s land because of a record easement granted to Plaintiffs by Defendant’s parents and predecessors in interest. Upon Defendant’s erection of a fence between Plaintiffs’ property and the subject easement, Plaintiffs commenced this action, asserting that the fence unreasonably interferes with their use, benefit and enjoyment of the easement and that the scope of the easement is defined both by the specific grant and by the uses to which it has been devoted since the date of the grant. Plaintiffs also claim title by adverse possession to portions of Defendant’s property and assert that they have acquired an easement by prescription over dirt paths on Defendant’s property for access to and from the shores of Wellfleet Harbor.

Procedural History

This action was commenced by James F. Reider and Patricia G. Reider (“Plaintiffs”) on April 9, 2008, seeking a declaratory judgment pursuant to G.L. c. 231A as to their rights with respect to an easement which they hold over abutting property owned by Defendant Martha Carroll. Through their complaint, Plaintiffs also seek title by adverse possession to, and certain prescriptive rights over, portions of Defendant’s property. Finally, Plaintiffs assert a private nuisance claim, alleging that a fence erected by the Defendant prevents Plaintiffs from freely accessing portions of their property.

On July 17, 2008, Defendant filed a verified answer and counterclaim. Defendant makes a claim for trespass, private nuisance, damages for breach of easement, declaration that the easement is void, and attorneys’ fees and costs. On the same day, Defendant moved for a preliminary injunction, with supporting memorandum and affidavits, to enjoin the Plaintiffs from entering the Carroll Property except to accomplish maintenance of the septic system. Plaintiffs also filed a motion for a preliminary injunction on July 17, 2008, requesting an order enjoining the Defendant from maintaining the fence that runs along the boundary line in between each parties’ property. In an Order issued on July 28, 2008, the court granted Defendant’s motion for preliminary injunction and denied Plaintiffs’ motion.

After attempts at arbitration were unsuccessful, a view and the trial were scheduled. The view of the two abutting properties was taken on October 15, 2009, and the first day of trial took place at Orleans Juvenile Court. The second, third and fourth days of trial took place at the Land Court from January 12-14, 2010. For the reasons that follow, the court concludes that the Plaintiffs have failed to meet the burden of proof on each of their claims, with the exception of their claim for declaratory judgment regarding their right to maintain a grassy lawn over the area of the septic easement that is located on Defendant’s property; the court also concludes that the Defendant fails to meet the burden of proof to successfully prove each of her claims.


On all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, including my observations during the site visit, I find as follows:

1. Plaintiffs James F. Reider and Patricia G. Reider are the record owners, as tenants in common, of 145 Nauhaught Bluffs Road, Wellfleet, MA (“Reider Property”). They purchased the Reider Property by deed dated March 13, 1970, recorded in the Barnstable Registry of Deeds, Book 1469, Page 72.

2. Defendant Martha Carroll is the record title owner of the property located at 25 Richman Lane, Wellfleet, MA (“Carroll Property”).

3. Title to the Carroll Property is derived as follows: Mar-Ven Inc. acquired title to property including the Carroll Property, then known as Camp Chequessett, by deed dated February 10, 1955, recorded in the Barnstable Registry of Deeds, Book 900, Page 54. By deed dated January 12, 1976, recorded in the Barnstable Registry of Deeds, Book 2289, Page 184, Mar-Ven Inc. conveyed a portion of the Camp Chequessett property, shown as Lot 12 on a plan entitled “Treasure Cove, Subdivision Plan of Land in Wellfleet, made for Mar-Ven, Inc, November, 1975 by Slade Associates, surveyors,” to Saul and Florence Richman (Defendant’s parents) as tenants by the entirety. Lot 12 includes the Carroll Property.

4. In 1988 the Plaintiffs intended to renovate their home on the Reider Property to convert it from a seasonal cottage to a residence capable of year-round accommodation. However, this renovation required that their then current septic system be replaced. The Richmans and the Plaintiffs enjoyed an amicable relationship as neighbors, and on September 26, 1988, the Richmans granted the Plaintiffs a septic easement over a 2068 square foot portion of the Carroll Property. This easement is recorded in the Barnstable Registry of Deeds, Book 6478, Page 308 (the “septic easement”). A Decision sketch is attached hereto.

5. By quitclaim deed dated October 2, 2001, recorded in the Barnstable Registry of Deeds, Book 14337, Page 230, Saul and Florence Richman conveyed the Carroll Property to their daughter, the Defendant Martha Carroll.

6. On July 7, 2005, Defendant served the Plaintiffs with a Notice to Prevent Acquisition of Easement. That same day, the notice was recorded in the Barnstable County Registry of Deeds in Book 20023, Page 61, and posted in a conspicuous location on the Carroll Property.

7. In a letter dated September 25, 2006, Defendant requested that Plaintiffs remove all encroachments and personal items from the Carroll Property and offered Plaintiffs an additional 3-foot easement on a portion of the Carroll Property near the home of the Plaintiffs, for access to and maintenance of the Plaintiffs’ home.

8. By early October, 2006, Plaintiffs had removed their kayaks, woodpile, birdbath, bench, clothesline, and all other items or structures from the Carroll property with the exception of a wood trellis, some stone pavers, shrubs, plants, and an underground irrigation system.

9. In or about September 2007, Defendant’s attorney, Benjamin Zehnder, advised the Plaintiffs’ attorney, James B. Stinson, that Defendant intended to install a fence along the southern property boundary of her property, with a gate that would provide maintenance access to the Septic Easement.

10. During January 2-7, 2008, Crosby Fence constructed a fence along the southern border of the Carroll property, with an 8-foot wide gate for accessing the Septic Easement.

11. On April 9, 2008 the Plaintiffs filed a complaint and initiated the present action.


I. The Septic Easement Includes the Right to Appropriately Maintain the Easement Area

The Septic Easement deed states, in pertinent part,

“[t]his easement is granted for sole purpose of construction, usage, maintenance and repair of a septic system within the above said boundaries and shall be appurtenant to the land of the Grantees, subject to the following terms and conditions:

1. Grantees covenant and agree . . . to construct, maintain and repair as may be necessary or desirable from time to time, said septic system in reasonably, prompt and proper manner, to ensure that the said septic system will function in an environmentally sound manner in full compliance with all laws and regulations now or in the future in effect governing said system . . . .”

At dispute in the present case is how often the Plaintiffs may enter upon the Septic Easement, and what actions they may take in order to properly maintain the septic system. The Plaintiffs claim that maintaining a grassy lawn and “regular mowing” are necessary, while the Defendant contends that the easement only grants the Plaintiffs the right to enter when “maintenance or repair to the septic system is needed” and does not allow Plaintiffs the right to maintain a grassy lawn.

The record makes clear what is necessary for the proper maintenance of a septic system. First, the testimony of Wellfleet’s Health and Conservation Agent, Hilary Greenberg Lemos, supports Plaintiffs’ claim. She testified that one should not allow any vegetation with a rooting system over a septic system because the roots would interfere with the components of the septic system.

The Massachusetts Department of Environmental Protection agrees with Ms. Lemos. On their webpage entitled “Caring for your septic system: A Reference Guide for Homeowners” they state that “the area over the drainfield should be left undisturbed with only a mowed grass cover. Roots from nearby trees or shrubs may clog and damage your drain lines.” [Note 1] (Emphasis added). Therefore, in accordance with their deeded right to maintain the septic system, Plaintiffs have the right to regularly maintain the grassy area over the septic easement to allow for the proper functioning of the septic system.

This finding is consistent with previous Land Court decisions, such as the ruling in Sawdy v. Zuber, 8 LCR 60 (2000) (Scheier, J.). In Sawdy the court noted that “unbridled vegetative growth within the septic easement may contribute to the malfunctioning of the sewerage system.” Id. at 65. The court thus allowed the Zubers to mow the easement three times annually in order to prevent the property from reverting back to a purely natural condition.

In short, Plaintiffs have the right to regularly maintain the grassy area over the septic easement. How often the Plaintiffs may enter the easement area to mow needs to be decided; in Sawday, the court specified three times annually. Given the circumstances and the nature of the growth surrounding the Septic Easement, Plaintiffs may need to maintain and mow more often than thrice annually, yet too much of a presence may place an undue burden on the Defendant. Therefore, the Plaintiffs have the right to regularly mow the grassy area on the Septic Easement, but not more than one time per month. To effect this order, the removal of the lock on the fence gate will be necessary; alternatively, the Plaintiffs may be given a key to the lock, or at minimum, the gate must be opened from time to time to allow Plaintiffs access with lawn care equipment. .

II. The Fence Erected by the Defendant Does Not Constitute a Private Nuisance

In order to maintain a suit for nuisance, the plaintiff must show that the Defendant caused “a substantial and unreasonable interference with the use and enjoyment of the property.” Rattigan v. Wise, 445 Mass. 850 , 856 (2006); Doe v. New Bedford Hous. Auth., 417 Mass. 273 , 288 (1994). With the exception of the lock on the gate, which I have ordered be removed or opened from time to time, the Plaintiffs have failed to demonstrate that Defendant has caused a substantial and unreasonable interference.

Plaintiffs concede that a fence on a property line is permitted by law, but claim that in this case it should not be allowed. They describe the burden it has placed upon them as increasing the difficulty of: servicing the utility pole, fuel oil deliveries, removal of garbage, accessing the outdoor shower, using the back door, and maintenance and repair of the house. However, Plaintiffs fail to demonstrate that they have been unable to do any of these activities; in fact, testimony at trial revealed that each of these actions is merely rendered inconvenient as a result of the construction of the fence, and do not approach “substantial and unreasonable.” Id. There was ample testimony that demonstrated that Plaintiffs have, despite the existence of the fence, been able to effectuate oil deliveries, use the back door and use the outdoor shower; in addition, further testimony revealed that maintenance of the house is still completely feasible. There is no injury or annoyance that has substantially interfered “with the ordinary comfort . . . of human existence.” Metropoulos v. MacPherson, 241 Mass. 491 , 502 (1922).

Furthermore, during my view of the site, it was clear that access is considerably exacerbated by the Plaintiffs’ own plantings of shrubs and trees. Removal of this vegetation would greatly facilitate Plaintiffs access to all aspects of the northern side of their residence.

In sum, the Plaintiffs have failed to demonstrate that the inconvenience of the fence is “substantial and unreasonable.” Certainly, the removal or opening of the lock from the fence gate is necessary for this finding; a discussion of nuisance regarding the Septic Easement is not necessary since the lock must also be opened for the Plaintiffs to access and maintain the Septic Easement.

III. Plaintiffs Have Not Acquired Any Interest In Fee in the Carroll Property Under the Doctrine of Adverse Possession

“Title by adverse possession can be acquired only by proof of non-permissive use which is actual, open, notorious, exclusive, and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G.L. c. 260 § 21. One claiming title by adverse possession bears the burden of establishing “all necessary elements of such possession.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. See Holmes v. Johnson, 324 Mass. 450 , 453 (1949). If any of the elements remains unproven or left in doubt, the claimant cannot prevail. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). See also Tinker v. Bessel, 213 Mass. 74 , 76 (1912), quoting from Cook v. Babcock, 65 Mass. 206 , 11 Cush. 206 , 210 (1853) (“The acts of the wrongdoer are to be construed strictly and ‘the true owner is not to be barred of his right except upon clear proof’”).

To succeed, the claimant must establish changes upon the land that constitute “such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). See also, e.g., Lyon v. Parkinson, 330 Mass. 374 , 380 (1953) (adverse possession established where claimant cleared land, formed rock garden, and installed rip-rap); Collins v. Cabral, 348 Mass. 797 , 798 (1965) (adverse possession established where claimants maintained disputed lawn area, cleared land of poison ivy, filled and graded property, and installed septic system). Because the Plaintiffs fail to meet every element of adverse possession, Plaintiffs have not acquired any interest in fee in the Carroll Property.

Plaintiffs fail to establish the “adverse” element because the record contains contradiction and doubt whether there was permission to use the disputed area. First, it has been established that the Plaintiffs maintained a friendly relationship with Defendant’s parents, the previous owners of the Carroll Property, who were accommodating to Plaintiffs, even offering them the Septic Easement for no monetary consideration. Second, the Plaintiffs’ claim rests almost entirely on testimony by the Plaintiff James Reider, which is in direct contradiction to the letter he wrote to Martha Carroll dated July 16, 2006, where he wrote “nothing was ever done involving your property without the invitation, approval, and encouragement of your parents.” While he later claimed this statement was an effort to “placate” the Defendant, all the correspondence on record, including the various friendly letters to and from the Reiders and the Richmans, supports the finding that the Reiders used the disputed area with permission, both implied and express.

In addition, the other elements have not been proved with sufficient certainty. A claim for adverse possession cannot succeed if there remains any doubt. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). The self serving testimony of Plaintiffs is not supported with sufficient evidence indicating that the Plaintiffs used the disputed area as if they owned it before the installation of the septic system. In fact, Defendant’s 2008 aerial photograph (exhibits 79 and 80) depicts the disputed area as indistinguishable from the rest of the Carroll Property, casting doubt over whether the Plaintiffs used the property. Further, in James Reider’s email to Defendant dated June 15, 2007, he states that he had removed items from the Carroll Property and then writes, “we are not, nor ever were, interested in taking any of your property.”

Finally, Plaintiffs have not identified the area claimed by adverse possession with sufficient certainty. Even if each of the elements were satisfied, the court cannot grant Plaintiffs title to disputed land that is merely described by a sketch. There is no evidence that indicates a clear distinction between what land was allegedly possessed adversely and what land was not. In short, Plaintiffs have offered no survey, plan, or descriptive measurements to identify the location of the disputed land claimed by adverse possession; therefore, the court cannot grant Plaintiffs title to any portion of the Carroll Property under the doctrine of adverse possession.

IV. Plaintiffs Have Failed to Demonstrate a Prescriptive Easement Over the Carroll Property

Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years. G.L. c. 187, § 2. “[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524 , 528-529 (1930). Tucker v. Poch, 321 Mass. 321 , 324 (1947). As with adverse possession, the use must be open, notorious, continuous, and adverse. Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Boston Seaman's Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985).

Each party submitted a plethora of evidence concerning this intensely contested issue. While Plaintiffs failed to provide convincing evidence to prove each element of an easement by prescription, the primary reason the claim fails is that Plaintiffs did not submit sufficient evidence to even prove the existence or exact location of the alleged paths. During the view of the locus, the alleged paths were examined and found to be barely discernable. There was no indication that the paths were permanent or long established. The many photos submitted by the Plaintiffs give some indication of paths, but since the pictures were taken to portray family members, the “paths” are in the background and it is impossible to see if the “paths” are even the same ones in each picture. Put simply, there is no definitive, convincing evidence that proves that there have been paths in a set location on the Carroll Property for 20 years.

Furthermore, Plaintiffs have failed to prove the specific location of the easement in a manner that would allow the court to grant an easement. In other words, Plaintiffs have only submitted hand-drawn lines on a plan to show the easement, and have not submitted any engineered plan, survey, or definitive picture of the alleged paths.

Even if there was clear proof that there exist certain paths over the Carroll Property, Plaintiffs failed to prove that they used it openly and continuously for twenty years. The testimony of Plaintiffs and their family members supported their claim, but the testimony of the Defendant and Defendant’s family directly contradicted the Plaintiffs. So the finding of fact rests on credible, disinterested witnesses, such as a neighbor or other person familiar with the locus, whose testimony could tip the scales one way or the other. Here the Defendant succeeded and the Plaintiffs failed.

The most compelling testimony came from Wellfleet Fire Chief, Daniel Silverman, who has rented the boathouse on the lower portion of the Carroll Property immediately adjacent to the alleged paths since 1975. He testified that he never observed the Plaintiffs or their family using the paths, despite having worked full time at the boathouse for over 20 years and having windows that face south, through which he could have observed the Reiders using the paths. His testimony was supported by Stephen Durkee, who lived in both 139 Nauhaught Bluff Road and 137 Nauhaught Bluff Road, and who testified that he never observed any member of the Reider family traversing over any portion of the Carroll Property.

In sum, Plaintiffs failed to identify the paths in a manner sufficiently clear to allow for adjudication in their favor, and further, they failed to provide convincing evidence of open, notorious, continuous, and adverse use for 20 years.

V. The Plaintiffs Did Not Trespass on the Carroll Property

To prevail in the action for Trespass, Defendant must prove (1) that she had actual possession of the property, and (2) that Plaintiffs entry was intentional and illegal. New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707 (1943). Intentional, illegal entry is accomplished by a voluntary act of entry without right of entry or license. Edgarton v. H.P. Welch Co., 321 Mass. 603 , 612-13 (1947).

The first element is undisputed: Defendant Martha Carroll owns the Carroll Property. The second element, intentional and illegal entry, has not been proven with any kind of definitive evidence. First, none of the Plaintiffs’ action on the Septic Easement could have constituted trespass because they have a legal right of entry to maintain the grassy area. The other allegations made by the Defendant, such as the alleged tampering with the boundary line stakes, the alleged path construction and the vegetation clippings, have not been proven by any showing of evidence beyond simple allegations drawn from inference. Since the Defendant provided no evidence to support her allegation of trespass, there is also no further hearing necessary to determine damages.

VI. The Plaintiffs’ Actions Did Not Constitute a Private Nuisance

In order to maintain a suit for nuisance in her counterclaim against the Plaintiffs, the Defendant must show that the Plaintiffs caused “a substantial and unreasonable interference with the use and enjoyment of the property.” Rattigan v. Wise, 445 Mass. 850 , 856 (2006); Doe v. New Bedford Hous. Auth., 417 Mass. 273 , 288 (1994).

Defendant makes her claim for trespass based on Plaintiffs alleged “pattern of harassing behavior” including: a threat of lawsuit in response to the fence, loosening of trespass signs, confrontational communication, and plantings on the Carroll Property. This claim fails because none of these alleged interferences, even if taken as true, are anywhere close to being a “substantial and unreasonable interference.” Furthermore, Defendant neglected to do more than make the simple allegations, and provided no evidentiary proof to allow for a finding of fact in her favor on this matter.

VII. Defendant’s Counterclaim Pursuant to G.L. c. 231 § 6F is Without Merit

The court may determine, after a hearing, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most of all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. G.L. c. 231 § 6F. The substantialness of a claim is evaluated by weighing the facts and circumstances that gave rise to it. Massachusetts Adventura Travel, Inc. v. Mason, 27 Mass. App. Ct. 293 , 295 (1989).

While all but one of Plaintiffs’ claims fails, it would be inappropriate to grant a hearing pursuant to G.L. c. 231 § 6F because Plaintiffs’ claims were neither insubstantial nor frivolous. In fact, Plaintiffs were correct to seek declaratory judgment regarding the scope of the Septic Easement in order to properly maintain the grassy lawn. Taken as a whole, the record shows some indications of bad faith, but considering the current relationship between Martha Carroll and the Reiders, neither party can rightfully claim innocence from bad faith. Such is the nature of the adversarial legal system. In sum, no post-judgment hearing is necessary to assess attorneys’ fees and costs.


All but one of the many claims raised by each party fails based on insufficient evidence to establish the requisite elements necessary to prove each claim. A judgment will be issued along with this Decision granting Plaintiffs the right to access the Septic Easement no more than once per month to maintain the grassy lawn; additionally, access to the Septic Easement shall be granted for other occasions related to maintenance of the septic system. Defendant shall remove the lock from the gate or unlock it periodically to allow the Plaintiffs to maintain the Septic Easement. Entrance by Plaintiffs or their family members on Defendant’s land shall be limited to maintenance of the septic system. They cannot go onto or cross over the Carroll Property for any other reason. Any contact with vegetation for any purpose, other than mowing to prevent root system interference with the septic system, is forbidden.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: August 11, 2010


[Note 1] “Caring for your Septic System: A Reference Guide for Homeowners.” http://www.mass.gov/dep/water/wastewater/yoursyst.htm (accessed August 4, 2010).