REG 99-43314

August 18, 2010


Trombly, J.


This action was commenced by petitioner Dennis D. Murphy, as Trustee of the Holmes Road Realty Trust, on October 6, 1999, seeking to register and confirm his title, and certain appurtenant rights of way, pursuant to G.L. c. 185, to a parcel of real property located in Eastham, Barnstable County, Massachusetts (hereinafter “Property”). [Note 1] In this action, the Plaintiff is seeking to establish title to said parcel under the doctrine of adverse possession, and to establish, by prescription, an appurtenant forty-foot easement over Defendants’ land. [Note 2] A Decision Sketch depicting the Property and surrounding area is attached.

On October 6, 1999, notice of the filing of the registration complaint was recorded at the Barnstable Registry of Deeds in Book 12593, Page 238. Pursuant to G. L. c. 185, the Court then caused a title abstract to be prepared and filed by a Land Court Examiner, and subsequently notified parties with potential interests in the land of the filing of the action. Record title appears to be held, in part, by the heirs of Elizabeth P. Lloyd, Gladys G. Knowles, Mattie James Thompson, Edna Celia Sayre Lathrop, Charlotte Flagg, Mabel Brown, Franz Tyler, and Alice Frances Sayre Fifield, none of whom objected to the complaint. Answers objecting to the Complaint were filed by or on behalf of defendants John F. Chaves, Sr., John F. Chaves, Jr., NSTAR Electric Company, the Town of Eastham, and the Assistant Attorney General on behalf of the Commonwealth. [Note 3]

On February 26, 2009, the Court took a site view of the Property and the claimed appurtenant rights of way. Following the view, the Court conducted the first day of trial at Orleans District Court. Trial was continued, pursuant to agreement between counsel and the Court, until July16, 2009, at which time the Court conducted the final day of trial in Boston. The testimony was reported.

Plaintiff, as well as Defendants, John F. Chaves, Sr. and John F. Chaves, Jr., filed post-trial briefs on August 31, 2009, after which the matter was taken under advisement. [Note 4] On March 2, 2010, a Motion to Sever and Dismiss a portion of the claimed land was filed by the Plaintiff, apparently because it had recently been discovered that the severed portion was, in fact, owned by the Town. The motion was allowed on March 9, 2010 without objection.

Based on the record before me, particularly the testimony of the several witnesses, my observations at the view, and reasonable inferences drawn therefrom, I find the following facts:

1. The claimed parcel, hereinafter referred to as the Property, was shown on a plan filed with the complaint, as amended, and was described as follows in the original complaint:

Westerly by land of the Commonwealth of Massachusetts, 466.14 ft.; Northerly by the Eastham Conservation Foundation, Inc., 2,231.38 ft.; Northeasterly by Cape Cod National Seashore USA, 341.41 ft.; Southerly by land of the Town of Eastham, 371.86 ft.; Easterly by the Town of Eastham, 7.56 ft.; Southerly by the Town of Eastham, 949.53 ft.; Easterly by land of the Town of Eastham, 158.87 ft.; and Southerly by land of the Eastham Conservatory Foundation, Inc., and the Town of Eastham, 1,130.00 ft. Such land compromises a total area of 20.34 acres.

2. Plaintiff is a limited liability company that is incorporated in Massachusetts. Dennis D. Murphy (“Murphy”) is the Trustee of the Holmes Road Realty Trust and is also a principal of Nauset Road, LLC.

3. The Plaintiff is owner of the Property through a quitclaim deed from Murphy, as Trustee, dated December 30, 2003, and recorded at the Barnstable County Registry of Deeds in Book 18082, Page 127. [Note 5] Said deed was the first in the chain of title to include a forty-foot, or indeed any, right of way over any land of the Defendants..

4. Prior owner Murphy acquired ownership to the Property through quitclaim deed from N.A. Nickerson & Sons, Inc. (“Nickerson”), dated August 15, 1996, and recorded in Book 10527, Page 42. At the time, the property was comprised of two separate lots, one containing about 16.5 acres, the other containing about 4 acres.

5. Nickerson acquired title to Lot One through quitclaim deed given by Mary E. Tyler and George W. Tyler, dated June 20, 1973 and recorded in Book 1931, Page 255, and acquired title to Lot Two through quitclaim deed given by Howard E. Brewer, dated October 8, 1968 and recorded in Book 1415, Page 1055.

6. Defendant, NSTAR Electric Company, owns rights to an easement over the parcel of land over which the Plaintiff’ claimed right of way is located pursuant to an Order of Taking (Massachusetts Department of Utilities Order #5879) dated November 29, 1961, recorded in Book 1138, Page 475, and which is reflected in Plan Book 166, Page 29.

7. Defendants, John F. Chaves, Sr., and John F. Chaves, Jr., are the current owners of a parcel of land located southerly of the Plaintiff’s land. Their land is depicted in Plan Book 281, Page 48, and on the plan filed with the complaint, under the title “Tilcon Minerals, Inc.”. Defendants received title to said land through deed from Great Bluewater Development, Co., dated September, 2001, and recorded in Book 14295, Page 313.

8. Defendant, Town of Eastham, owns other land located southerly of the Property over which the Plaintiffs purported easement runs.

9. Prior to being purchased by Nickerson, both Lot One and Lot Two were undeveloped woodlands. Upon purchase of Lot One in 1968, and Lot Two in 1973, Nickerson, began to systematically deforest the areas, removing the debris with heavy machinery and then stripping the soil of minerals. The entire Property was deforested by 1976-77.

10. After the deforestation of the premises, Nickerson erected concrete blocking and telephone poles along the perimeter of the consolidated lots, and placed “no trespassing” signs upon the property.

11. After the Property had been conveyed to Murphy, he erected a four-foot high chain-link fence that encompassed a large portion of the Property (as reflected in Ex. 8).

12. Nickerson employed the Property for mineral stripping, manufacture of natural materials, storage of borrow materials, storage of natural materials, and the storage and parking of heavy machinery. This activity continued from when Nickerson first acquired a portion of the property in 1968 until the Property was conveyed to Murphy in 1996.

13. From 1996, until the present, the land has continued to be used for mineral stripping, manufacture of natural materials, storage of borrow materials, storage of natural materials, and storage and parking of heavy machinery by Lower Cape Sand and Gravel, which leased the Property from Murphy until 2008, and now leases it from Plaintiff.

14. A metal building, shed, and trailer are located on the south-easterly portion of the Property. Concrete blocks line the easement, and a brush pile encroaches on it near a garage on the Chaves’ property.

15. When Lot One and Lot Two were purchased by Nickerson, the company used three access routes to enter upon the property. [Note 6] One of these was the forty-foot easement now claimed by Plaintiff in this action which is comprised of a partially paved and partially graded dirt surface.

16. Starting in 1968, Nickerson began to run heavy equipment as well as passenger vehicles, tractor trailers, and dump trucks over the forty-foot easement. Property. Lower Cape Sand and Gravel continued this use starting in 1996, after leasing the land from Holmes Road Realty Trust. In addition, the general public used the alleged forty-foot easement for the purposes of ingress and egress to the property, which was used, inter alia, as a “stump dump”.

17. The right of way has been maintained by N.A. Nickerson & Sons, Inc, Holmes Road Realty Trust, and Nauset Road, LLC, during their respective periods of ownership and occupation of the Property. This maintenance has included grading the surface of those areas that were dirt, leveling the roadway, and periodically fixing cracks and potholes in the paved area.

18. No objection has been made as to the Plaintiff’s claim of title to the Property. However, Defendants dispute Plaintiff’s claim as to the easement, contending it is overbroad and that any easement plaintiff might have is not forty feet wide.

Adverse Possession

Plaintiff alleges that since consolidation of Lots One and Two in 1973, it and its predecessors-in-interest have continuously maintained and made use of the Property. Plaintiff argues that these actions are sufficient to establish title by adverse possession to the Property. The defendants do not dispute this claim.

“A party claiming title to land through adverse possession must establish actual, open, exclusive, and non-permissive use for a continuous period of twenty years.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The required twenty-year period for adverse possession can be reached by tacking a predecessor’s period of adverse possession, if privity of estate exists between the Plaintiff and the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G.L. c. 260, § 22.

In determining whether the use and control over the land are sufficient to establish adverse possession, “[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (quoting LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938)); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). “Acts of possession which are ‘few, intermittent and equivocal’ [are insufficient to] constitute adverse possession.” Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992), quoting Parker v. Parker, 83 Mass. 245 , 247 (1861). Overall, the test for adverse possession “is the degree of control exercised over the strip by the possessors.” Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). The acts of the adverse possessor must be, “so open and notorious that [they] may be presumed to have been known to the rightful owner,” such that they place the rightful owner on “constructive notice” that a claim of right was being asserted. Lawrence v. Town of Concord, 439 Mass. 416 , 421-22 (2003). While daily use is not required to fulfill the “continuous use” requirement in order that continuous seasonal use can suffice, it must nevertheless amount to some level of consistency. Mahoney v. Heebner, 343 Mass. 770 (1961) (finding seasonal variation in use was sufficient). Thus, the claimant must act, “in a manner inconsistent with the true owner’s rights.” Lawrence v. Town of Concord, 439 Mass. at 421; see Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). Permanent improvements or significant changes to the land are more likely to be sufficient to satisfy the elements of adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556.

At no time was the Plaintiff or its predecessors given express or implied permission or consent to use the land. Furthermore, the Plaintiff and his predecessors purposely demarcated boundary lines across the entire perimeter with concrete blocks and telephone poles, and placed signs warning others against trespassing. Eventually a four-foot chain-link fence was erected encompassing a large portion of the perimeter of the Property. These barriers were not only intended to keep third-parties from entering the land, but also to effectively block entry onto the land by anyone, including the rightful owners. This court therefore finds that the land use was under the color of title and adverse as to the rightful owner of the land. Totman v. Malloy, 431 Mass. at 145. The implementation of these barriers, as well as actions taken on the Property, are also enough to show that the land was used exclusively. The acts of the Plaintiff and their predecessors clearly “encompass a ‘disseisin’ of the record owner,” and indicate that the lands were used to the exclusion of both the owner and the public at large. Peck, 34 Mass. App. Ct. at 577; Kershaw, 342 Mass. at 320 (where Plaintiff “put in boundary marks, kept the land clear of brush, and continuously used the area for his exercises and stunts,” the court stated that a finding of disseisin was appropriate.).

“[C]utting wood and timber from wild land, and clearing and cultivating” the land is proof that the possessing party has taken substantial control of the land that amounts to actual use of the land. See Morris v. Callanan, 105 Mass. 129 , 133 (1870). As Plaintiff and its predecessors cleared the land of timber, used it to store vehicles and natural materials that had been stripped from the land, and placed a number of buildings upon the Property, Plaintiff and his predecessors were actually using the land in a method that was open and notorious. It is clear that the Plaintiff and their predecessors made no attempt at concealment. See Foot v. Baumen, 333 Mass. 214 , 218 (1955) (“To be open the use must be made without attempted concealment.”). The use was also notorious, as any rightful land owner who had “maintained a reasonable degree of supervision,” over the premises would have been aware of the activities that were occurring on the premises at the time. Id.; see also Lawrence, 439 Mass. at 421-22.

The Plaintiff’s use of the land, and that of his predecessors, has been systematic and continuous on the Property for a period extending beyond twenty years. Though, by their very natures, some of the uses of the land, such as clearing timber, no longer occur, many of the basic uses for the land, such as storage of debris, natural materials and vehicles, have been continuous for the entirety of the possession period between 1973 and 1999, when this case was filed. Use of the land was neither intermittent nor sporadic; rather, the land was used every weekday for 26 years. Nor was the use of the land inconsistent. See Mahoney, 343 Mass. 770 (1961). As such, the Court holds that the use of the land was continuous for the entirety of the prescribed time period for adverse possession.

Plaintiff and his predecessors have held the Property adversely since they consolidated Lot One and Lot Two in 1973, and privity of estate exists between a grantor and a grantee. Wishart v. McKnight, 178 Mass. 356 , 360 (1901). Title passing from grantor to grantee has evidenced a continuous chain by adverse possession. This Court finds the Plaintiff has shown that, through tacking, the adverse use of the land has extended for a period of at least twenty years, and therefore, since the Court finds that the Plaintiff has established actual, adverse, open and notorious, and exclusive use of the Property for a continuous period of twenty years, the Plaintiff has proven its right to title in the Property.

Prescriptive Easement

To prove that a right of way over the land of another has been acquired through prescription, the claimant must prove that there has been “continued, uninterrupted use of that easement for twenty years. As with adverse possession the use must be open, notorious, continuous, and adverse.” Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). Unlike adverse possession, no showing that the right of way was used exclusively by the claiming party need be made. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 n. 9 (2007).

Similar to a claim for adverse possession, to show that a use has been “‘open,’ the use must be without attempted concealment. For a use to be found notorious, it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Boothroyd, 68 Mass. App. Ct. at 44. For the use of the land to be considered continuous it cannot be intermittent, sporadic, or “disjointed.” Id. at 45; See also Pollard v. Barnes, 56 Mass. 191 , 199 (1848). For the use of the land to be adverse it must not be assented to, or impliedly or expressly permitted. Rotman, 74 Mass. App.Ct. at 589. A rightful owner’s silence, “aquiescence, or tacit agreement,” is not the same as permission, and standing alone fails to defeat a claim of prescriptive rights. Id. at 590.

A prescriptive easement must also be confined to a particular way, which passes “along a particular route between certain termini.” See, e.g., Hoyt v. Kennedy, 170 Mass. 54 , 56. Making repairs to a way, such as clearing brush, grading the dirt, or laying asphalt or gravel, are evidence of the use of a way. See Glenn v. Poole, 12 Mass. App. Ct. 292 (1981). A claim of prescription can be tacked between several periods of use by different individuals so long as there is privity between those individuals and as long as the other elements are present. Ryan v. Stavros, 348 Mass. 251 , 264 (1964).

Plaintiff contends that they have acquired a forty-foot prescriptive easement that leads from Nauset Road to their Property. Plaintiff contends also that the prescriptive easement is comprised of two separate sections: [Note 7] Section one, the “traveled way,” is comprised of those areas which are used for vehicular traffic; section two, the “cleared way,” is comprised of the area that runs adjacent and parallel to the traveled way, and is used for (1) accommodating the girth of trucks and heavy duty vehicles whose bodies protrude beyond the traveled way, (2) as an area for emergency pull offs, and (3) for the placement of snow during the winter. Thus, two questions are presented before the Court: (1) has the Plaintiff proven the necessary elements of a prescriptive easement over Defendants’ land; and (2) if so, does it consist of both the traveled way and the cleared way ?

A. The Traveled Way

While Plaintiff and Defendants argue about the exact width of the overall way, both Plaintiff and witnesses state that the traveled way is wide enough for two trucks to pass each other without colliding. Dennis D. Murphy, in testimony, states that the average width of a truck is twelve feet “mirror to mirror.” [Note 8] Further, Mr. Murphy, as well as other witnesses, state that the average width of the traveled way is about twenty-six feet. A land survey plan (Ex. 11), created for trial by Land Surveyor Christopher Costa, indicates that the right of way fluctuates between twenty-five and eighteen feet, and accurately represents the traveled way as used by the Plaintiff.

Plaintiff avers that they, their predecessors, and employees have traversed the traveled way beginning in 1968 or before, and continuing through the filing of this claim in 1999. Plaintiff and witnesses for the Plaintiff state that each weekday, and occasionally on weekends, since that time, a large number of heavy-duty vehicles have passed over the traveled way. Indeed, testimony indicates that on certain days three hundred commercial and heavy duty vehicles passed over the easement to reach the Property. [Note 9] Plaintiffs further aver that they and their predecessors have maintained the right of way by grading the dirt portion of the easement, and making repairs to the paved portion of the easement whenever they found cracks or potholes. The use of the traveled way for the same purposes, and in the same weekly time-frame, for the past thirty-one years, is sufficient evidence of continuous use. See Nocera v. De Feo, 340 Mass. 783 (1959) (use of driveway for residential vehicles over twenty year period sufficient to create prescriptive easement).

Further, there has been no rebuttal of the claim that such use was adverse, and no evidence on the record that any permission was ever granted, or that there was “some license, indulgence or special contract inconsistent with a claim of right." Tucker v. Poch, 321 Mass. 321 , 323 (1947); Van Allen v. Sweet, 239 Mass. 571 , 574 (1921). Nor is there any indication that the Plaintiff or their predecessors-in-interests’ use of the right of way ceased to be adverse and became permissive at any point. While the area surrounding the traveled way was blocked by concrete blocks at some point, those blocks were not laid until after this case was filed, and therefore have no bearing on this Courts findings. The fact that Defendants’ predecessors-in-interest were aware of the use of the way, and tacitly acquiesced, does not imply that they had given permission to the Plaintiff or their predecessors to use the right of way. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835-36 (2008) (quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964)). Therefore, there was “no recognition by the plaintiffs of authority in the defendant to prevent or permit continuance of the use,” that would have made the use permissive. Ryan v. Stavros, 348 Mass. at 263.

The Plaintiff’s, and its predecessors-in-interest’s, use of the traveled way was never concealed. The constant flow of heavy machinery, cars, and dump trucks loaded with sand, dirt, and forest debris, would have, in fact, been very hard to conceal. It would have also been hard to hide the laying of asphalt on the property, the clearing of brush, and grading the dirt portions of the traveled way. These uses of the land were open and notorious enough to have put a landowner on notice if “he or she maintained a reasonable degree of supervision over the property.” Boothroyd, 68 Mass. App. Ct. at 44. The Defendants, themselves, state that at the time that they first walked the land, in 2001, they were aware of the presence of vehicles passing through their predecessor-in-interests property and, as such, this Court holds that the traveled way was used openly and notoriously.

It is also clear that the approximately twenty-six feet where the “tires hit,” can be considered a particular way, definitive in nature, and located between to fixed points such that it could be considered the “same route.” Hoyt, 170 Mass at 56; Stone, 59 Mass. App. Ct. at 267. It is also clear that the traveled way was used for the same purposes for which the right of way was originally designed—a method of ingress and egress for vehicles between Nauset Road and the Property. Hoyt, 170 Mass at 56. As such, this Court holds that the traveled way, extending to an approximate width of twenty-six feet, has been used by the plaintiffs, uninterrupted, for a period longer than twenty years, in an open, notorious, continuous, and adverse manner to the use of the property by the Defendants and their predecessors-in-interest.

B. The Cleared Way

The section of the way which runs adjacent and parallel to the “traveled way” for seven feet on each side, is referred to as the “cleared way.” The Plaintiffs do not claim that this area is used for average vehicular traffic; rather, they claim that the cleared way is used to accommodate extraordinarily large vehicles, for snow displacement from the travel way, and when vehicles need to pull off in the case of an emergency. Plaintiff has the burden of showing that he has used the claimed width of the prescriptive easement openly, notoriously, adversely, and continuously for the entirety of the twenty year period. Rotman, 74 Mass. App. Ct. at 589. The Plaintiff fails to meet its evidentiary burden as applied to the area referred to as the “cleared way” because, while there is ample evidence that the area referred to as the traveled way has been used continuously by the Plaintiff and his predecessors, there is little evidence that they “used or improved [the cleared way] for twenty continuous years.” Davenport v. Broadhurst, 10 Mass. App. Ct. 182 , 187 (1980). Plaintiff put forward no factual evidence purporting to show how often the cleared way was used for emergencies, for snow storage or removal, the frequency with which vehicles whose bodies extended beyond the traveled way traveled upon the easement, or how often it made repairs to the cleared way. While repairs can be considered in determining whether a way is used, they are not dispositive as to the continuity of use. Glenn v. Poole, 12 Mass. App. Ct. at 292. A prescriptive easement extends to only historical uses of the land which are continuous by nature; on the basis of the record, this Court finds that the Plaintiff failed to meet the evidentiary burden to establish a prescriptive easement over the portion the right of way referred to as the cleared way.


For the foregoing reasons, this Court concludes that Plaintiff has satisfied the elements of adverse possession with regards to the Property. The Court further finds that the Plaintiff has satisfied the elements of a prescriptive easement for a right of way extending from Nauset Road to the Property, the location of which is reflected in the attached Decision Sketch and is accurately described by Defendants’ land survey plan (Ex. 11). On all the evidence, I find and rule that Plaintiff has proven both adverse possession of the Property and the right to a prescriptive easement over the Defendants land, as shown on Exhibit #11 and on the Decision Sketch attached hereto. I allow registration of the Property, subject to such matters as may appear in the record and which are not at issue in this case.

Judgment to issue accordingly.

Charles W. Trombly, Jr.


Dated: August 18, 2010


[Note 1] Nauset Road, LLC was later substituted as Petitioner when title to the Property was transferred to that entity.

[Note 2] Petitioner had originally sought to register and confirm a second ten-foot wide right of way leading to the Property. At the time of trial, however, Substitute Petitioner Nauset Road pursued only its claim to a forty-foot wide right of way over the Chaves property.

[Note 3] The Commonwealth withdrew their Answer and Objections to Plaintiff’s action on October 21, 2008. The Town of Eastham withdrew their Answer and Objections to Plaintiffs action on March 18, 2009, while reserving the right to see the final decree of the Court.

[Note 4] [No footnote in original]

[Note 5] Unless otherwise indicated, all references to recorded deeds and plans refer to instruments recorded at the Barnstable Registry of Deeds.

[Note 6] Only the main access road, or the alleged forty-foot easement, is at issue. Plaintiff does not claim rights to any other right of way over Defendants’ property.

[Note 7] This Court prescribes to the vernacular used by the Plaintiff at trial in delineating the difference between these two areas because it is instructive as to how the uses of different areas of the right of way differ.

[Note 8] Trial Transcript, Testimony of Dennis D. Murphy at 116. Mr. Murphy makes vague mention of other vehicles whose bodies take up more space, but only mentions one vehicle—a bulldozer with a twenty-foot-wide blade—that requires more room. Mr. Murphy testifies that this bulldozer was first purchased in 2006, and therefore the Court disregards his testimony as to the effect on the traveled way by that piece of equipment.

[Note 9] Trial Transcript, Testimony of Dennis D. Murphy at 127.