RONALD E. BELROSE and CJB REALTY TRUST, CLAIRE F. BELROSE, TRUSTEE vs. OLD TUCK CRANBERRY CORP. and ASHLEY EXCAVATING, INC.

Ronald E. Belrose (“Ronald”), individually, and Claire F. Belrose (“Claire”), as Trustee of CJB Realty Trust (the “Trust”) (together, “Plaintiffs”), filed their unverified Complaint on May 22, 2007, pursuant to G. L. c. 231, § 1, seeking declaratory judgment with respect to rights in Old Tuck Bog Road (the “ROW”) and claiming trespass by Old Tuck Cranberry Corp. (“Old Tuck”) and Ashley Excavating, Inc. (“Ashley Excavating”) (together, “Defendants”) on the ROW. On the same day Plaintiffs filed a Motion for Preliminary Injunction, together with Affidavits of Ronald E. Belrose and Jan E. Dabrowski, Esq. On July 23, 2007, the parties filed an Agreement of the Parties Pending the Results of Anticipated Preliminary Injunction Hearing (the “Agreement”), in which Defendants agreed not to widen or alter the ROW, not to use the ROW to transport tree stumps except in connection with agricultural operations on Defendants’ properties, and not to use the ROW for non-agricultural commercial and business purposes except 7:00 A.M. to 5:00 P.M., Monday through Friday. A case management conference was held on July 30, 2007. Defendants filed an Answer to the Complaint on August 28, 2007. A hearing on the preliminary injunction motion was held on February 5, 2008, and on February 25, 2008, the parties filed a Stipulation of the Parties, in which they agreed on who owned the various properties through which the ROW runs. [Note 1] On March 27, 2008, this court issued an Order Allowing In Part Plaintiffs’ Motion for Preliminary Injunction (the “Order”) to the extent that it was consistent with the Agreement. [Note 2] The Order was to remain in place until the merits of the case were resolved.

A pre-trial conference was held on January 12, 2009. A site view and the first day of trial at the Southern New England School of Law were held on February 24, 2009. The second and third days of trial were held at the Land Court in Boston on February 25 and 26, 2009. Plaintiffs filed their post-trial brief with this court on June 1, 2009, and Defendants filed their post-trial brief on June 2, 2009, at which time the matter was taken under advisement.

Claire, Ronald, Jan Dabrowski, Esq. (title examiner), Ann Ayers (neighbor), Kymberly K. Ashley (“Kymberly”) (President of Ashley Excavating), Thom Jones (Claire’s son), Sandra A. Keese (“Keese”) (neighbor), and Eileen Marshall (neighbor and daughter of Sandra A. Keese) gave testimony for Plaintiffs. Kymberly, Scott Ashley (“Scott”) (President of Old Tuck), Ben Gilmore (engineer), Thomas Gayoski (Rochester tax collector), and William Rounds, Esq. (title examiner) gave testimony for Defendants. There were 215 exhibits submitted.

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

1. Ronald and Claire own and reside at 66 High Street, Rochester, Massachusetts. Ronald has owned property shown on Rochester Assessor’s Map 14 (“Map 14”) as Lot 15 (“Lot 14/15 ”) since 1980. The Trust has owned properties shown on Map 14 as Lot 13 (“Lot 14/13”), Lot 13B (“Lot 14/13B”), and Lot 14A (“Lot 14/14A) since 1999. [Note 3], [Note 4]

2. Old Tuck has a principal place of business at 137 Old Tuck Bog Road, Rochester. Old Tuck owns and operates cranberry bogs on land shown on Rochester Assessor’s Map 12 as Lots 10, 11, and 11A (“Lot 12/10,” “Lot 12/11,” and “Lot 12/11A”) (together, “Old Tuck Property 1”). Old Tuck also owns property shown on Map 14 as Lots 20 Lot 21 (“Lot 14/20” and “Lot 14/21”) ( together, “Old Tuck Property 2”) and Lot 10 (“Lot 14/10”).

3. Ashley Excavating, incorporated in 2002, has a principal place of business at 137 Old Tuck Bog Road, Rochester. Ashley Excavating owns properties shown on a 2005 map produced by Geodetic Engineering (the “Geodetic Map”) for Ashley Excavating as “Lot 14/15C” and “Lot 14/15C-3.” [Note 5] Ashley Excavating also owns the Heleen Bog, which is located on Map 13 as Lot 14 (“Lot 13/14”).

4. Ashley Excavating’s business involves excavating, grading, and loading sand and gravel from third party construction jobs or in connection with third-party sand and gravel pits.

5. Scott operates Old Tuck’s cranberry bogs and operates the Heleen Bog for Ashley Excavating. Kymberly manages Ashley Excavating’s business activities, and she is the bookkeeper for both Old Tuck and Ashley Excavating. Old Tuck performs all cranberry farming services on the Heleen Bog for Ashley Excavating. Scott and Kymberly reside in a house (the “Ashley House”) located on Lot 12/11.

6. The ROW is a paved road that runs from High Street to Old Tuck Property 1. The ROW begins at High Street on Lot 14/14A and forms a fork (the “Y”) within such lot that offers two points of access to High Street. After the Y converges, the ROW proceeds south and travels across Lot 14/13B and property shown as Lot 13A on Map 14 (“Lot 14/13A”) (owned by the Town of Rochester) and curves through Ronald’s Lot 14/15. The ROW then passes, on its eastern side, properties shown on Map 14 as Lot 16 (“Lot 14/16”) (owned by David Fletcher) and Lot 17 (“Lot 14/17”) (owned by Dennis Clemishaw). The ROW proceeds southwest to Old Tuck Property 1, passing properties shown on Map 14 as Lot 15B (“Lot 14/15B) (owned by Dennis Clemishaw), Lot 15D (“Lot 14/15D”) (owned by Robert Minarik), and Lot 15A (“Lot 14/15A”) (owned by Thom Jones, Claire’s son) on the west. On the east, the ROW passes properties shown on Map 14 as Lot 15E (the “Kidney Property”) (owned by Neal and Cheryl Anne Kidney) and Lot 15C (the “Pina Property”) (owned by Robert and Eileen Pina). [Note 6]

7. Maps of the Town of Rochester from 1854, 1879, and 1903 do not show the ROW, nor does a United States Geological Survey (“USGS”) map from 1893. The earliest map in the trial record that shows the ROW through the property at issue is a 1936 plan of land owned by Philip R. Porter. [Note 7] A USGS map from 1943 also shows the ROW.

A. Haskell Chain of Title

8. Old Tuck Property 2, part of Lot 14/10, and the majority of Old Tuck Property 1 lie on the west or south side of the west branch of the Sippican River (the “West Branch”). [Note 8] The common grantor for this land was Eugenia Haskell (“Haskell”). Haskell did not own any land between the West Branch and High Street. The western limit of Haskell’s land was Walnut Plain Road.

LOTS 14/20 AND 14/21

9. Haskell conveyed Lot 14/20 and part of Lot 14/21 to Aalden Rounseville (“Rounseville”) on November 19, 1903. Rounseville had previously obtained a part of Lot 14/21 from Harriet Atwood on June 25, 1887. [Note 9] Rounseville’s successor, Lincoln Rounseville, then conveyed Lot 14/20 and Lot 14/21 to Old Tuck on April 17, 1998.

10. Dianne Fielding is the owner of Lots 19 and 4 on Map 14 (“Lot 14/19” and “Lot 14/4”) (together the “Fielding Property”). Lot 14/19 is a parcel wedged between Lots 14/20 and 14/21, and Lot 14/4 abuts the northwest side of Lot 14/21.

11. Old Tuck owns an easement to access Lots 14/20 and 14/21 via a woods road (the “Woods Road”) that travels from the west side of Lot 14/21 northwest through the Fielding Property to Walnut Plain Road. Lincoln Rounseville used the Woods Roads to access Walnut Plain Road from Lots 14/20 and 14/21.

12. Fielding has placed a locked gate on the Woods Road where it exits on to Walnut Plain Road. The Fieldings and the Ashleys were parties to a previous Land Court suit over sand rights on Lots 14/20 and 14/21 that was initiated by Fielding in 1998 and ended in 2007. In early 2007, the Ashleys had a confrontation with Fielding’s relatives near Lot 14/20.

LOTS 12/10, 12/11, 12/11A

13. Haskell conveyed Lot 12/10 to George Bassett on November 19, 1884. The chain of title from Bassett to Old Tuck, however, is absent from the record, but the parties do not dispute that Old Tuck is the current owner of Lot 12/10.

14. Haskell conveyed Lot 12/11A, part of Lot 14/10 and part of Lot 12/11 to Luther Fisk, Anthony Doane and several others (together, “Fisk et al.”) on September 5, 1884 (the “Fisk et al. Deed”). Haskell and Perez Doty conveyed another portion of Lot 12/11, which they owned together, to the Old Tuck Bog Company (operated by Fisk, et al.) on October 3, 1885 (the “Haskell/Doty Deed”). [Note 10]

15. The Fisk et al. Deed granted a “right of way to pass and repass over the said Haskell’s land” and the Haskell/Doty Deed granted “[the] privilege of passing and repassing.” Both deeds referred to a right to access Walnut Plain Road, which reached the western boundary of Haskell’s remaining land.

16. On January 15, 1918, Fisk et al. conveyed the property they owned collectively to the Old Tuck Cranberry Company. [Note 11] On March 2, 1935, Old Tuck Cranberry Company conveyed all its property to Old Tuck, Inc.

17. On June 1, 1943, Albert Rounseville conveyed the northwestern portion of Lot 12/11 to Old Tuck, Inc.

18. Old Tuck, Inc. conveyed all of its property to William and Geneva Mackenzie (together, the “Mackenzies”) on July 13, 1964. On February 9, 1977, the Mackenzies conveyed to K.J. Ashley & Sons, Inc. (“K.J. Ashley”) all the property that the Mackenzies had received from Old Tuck, Inc. except for a portion of it that the Mackenzies had sold to Irving and Helen Howes (together, the “Howes”) on January 5, 1970. On October 2, 1980, K.J. Ashley conveyed to Squinn’s Brook Corporation all the property that K.J. Ashley had received from the Mackenzies. On April 1, 1982, Squinn’s Brook Corporation conveyed to Old Tuck all the property it had received from K.J. Ashley. On July 18, 1983, the Howes conveyed to Old Tuck the portion of property that the Mackenzies had sold to them.

B. Stevens Chain of Title

19. The ROW, part of Lot 14/10, Lot 14/15C-3, and Lot 13/14 lie between the West Branch and High Street. [Note 12] The common grantor for this land was Micah Stevens (“Stevens”). [Note 13]

20. Although Stevens owned much of the land between the West Branch up to High Street, he never held title to Lot 14/14A, the land on which the ROW forks into the Y with access to High Street. Stevens owned what is now Lot 12 on Map 14 (“Lot 14/12”), currently owned by the Town of Rochester, which fronts on High Street. His home and barn were located in the vicinity of High Street, but their exact location is unknown.

LOT 14/10 (West Branch)

21. Stevens conveyed part of Lot 14/10 to Fisk, et al. on September 10, 1884 (the “Stevens-Fisk Deed”). [Note 14] This deed stated that Fisk, et al. were “to have the right to pass and repass across said Stevens land in the way said Grantor shall designate by his barn to the granted premises.”

LOTS 14/13 AND 14/13B

22. Stevens was the original owner of what is now Lot 14/13B, after which Mary Holmes (“Holmes”) came into possession of said land. [Note 15] Holmes conveyed land that included Lot 14/13B to Herbert and Hattie Barrows (the “Barrows”) on November 23, 1929. The Barrows conveyed Lot 14/13B to Joseph and Bibiano de Brito on October 26, 1943. Bibiano de Brito passed away and Joseph de Brito conveyed Lot 14/13B to Edmund C. Delano (“Delano”) on August 24, 1970.

23. On July 23, 1999, the Trust purchased two parcels of property from Delano. One parcel comprised what is today Lots 14/13 and 14/13B while the other parcel comprised what is today Lot 14/14A. [Note 16], [Note 17]

LOTS 14/15C-3 AND 13/14

24. In 2004 the Rochester Planning Board endorsed an “Approval Not Required” (ANR) plan of Ashley Excavating concerning land bordering the ROW resulting in the creation of four separate lots depicted on the Geodetic Map as Lots 14/15C, 14/15C-1, 14/15C-2, and 14/15C-3. [Note 18]

25. Lots 14/15C-1 and 14/15C-2 contain frontage along the ROW. On November 12, 2004, Ashley Excavating conveyed Lot 14/15C-1 to Neal and Cheryl Anne Kidney but reserved the fee interest in the ROW and the road to Eldridge Bog. [Note 19] On January 25, 2005, Ashley Excavating conveyed Lot 14/15C-2 to Robert and Eileen Pina but reserved the fee interest in the ROW and the road to Eldridge Bog.

26. Title to Lot 13/14 originates in the Stevens chain of title. Ashley Excavating purchased what is now Lot 13/14 and Lots 14/15C, 14/15C-1, 14/15C-2, and 14/15C-3 from Elsie Heleen (“Heleen”) on November 25, 2003. This deed contains the right to pass over the ROW and the road to Eldridge Bog (the “Heleen Deed”).

27. Kymberly provided unopposed testimony that Lots 14/15C-3 and 13/14 can be accessed from High Street via the ROW and the road to Eldridge Bog and that it was also possible to access these properties using a dike road from Old Tuck Property 1.

C. Old Tuck’s Cranberry Farming Operations

28. The cranberry bogs on Old Tuck Property 1 are located in the flood plain of the West Branch. The West Branch originally flowed through the farming operation before a canal was constructed to partially reroute the flow of water to other parts of the farm.

29. Ben Gilmore, Defendants’ expert on cranberry farming, provided unopposed testimony that earth removal is essential in Massachusetts for building and expanding cranberry bogs and building and expanding water supplies. [Note 20]

30. The compost pile on Old Tuck Property 1 was inspected by the Department of Environmental Protection (DEP) in 2004 and 2008 and was found to be a permitted agricultural activity that did not require Old Tuck to obtain any further permits.

31. Most of the cranberry bogs on Old Tuck Property 1 have existed since the late 19th century. The only portion of Old Tuck Property 1 that has not historically been operated as a cranberry bog is Bog A12 on Lot 12/11. This bog was constructed in 2000 and was previously a hay field with grazing room for cattle. When Old Tuck purchased Old Tuck Property 1 in 1982 and 1983, however, the cranberry bogs on the properties required extensive repairs. Old Tuck has operated cranberry bogs on Old Tuck Property 1 since 1982-1983, during which time Old Tuck used the ROW to access these properties.

32. Scott provided unopposed testimony that Old Tuck Property 1 is currently “built-out,” such that there is no more available land on the property to create more bogs.

33. In the early 1990s, Lots 14/20 and 14/21 were forested uplands but are now cleared and leveled. Old Tuck obtained an earth removal permit in 1998 to remove up to 180,000 cubic yards of material to construct a cranberry bog on Lot 14/20. In 2000, Old Tuck obtained similar permits to remove 80,000 cubic yards of material from Lot 14/21 and 50,000 cubic yards from Lot 12/11. Ashley Excavating performed pit management for Old Tuck on Lot 14/21 and sold excavated material to customers who picked up the material in their own trucks using the ROW.

34. Ashley Excavating usually parks its vehicles on its own property but sometimes parks its vehicles on Old Tuck Property 1.

D. Alterations to the ROW

35. The ROW was originally a dirt road, but with financial contributions from Ronald and Robert Minarik (owners of Lot 14/15D), in the early to mid-1990s Scott paved the ROW with recycled asphalt from High Street to the northern property line of Lot 12/11.

36. Claire, Ronald, Thom Jones, Sandra A. Keese, Eileen Marshall, and Thomas Gayoski all provided unopposed testimony that the ROW has become wider since the early to mid 1990s, and that prior to such time it would have been difficult for vehicles moving in the opposite direction to pass each other at many points on the ROW. [Note 21]

37. In the early 1990s, Scott improved portions of the ROW and used compacted gravel and fill material to create “bumpout areas” on the side of the ROW along Ronald’s property. Scott created the bumpouts for safety reasons; the bumpouts were designed for the purpose of allowing a vehicle traveling on the ROW to pull over to allow a vehicle traveling in the opposite direction to pass.

38. Scott performs road maintenance and repair work on the ROW as required by a decision of the Rochester Soil Conservation Board, dated October 19, 2000, that granted Old Tuck an earth removal permit for Lot 14/21 in 2000.

39. Scott, Ronald, and, occasionally, David Fletcher and Robert Minarik plow the ROW. Scott plowed the ROW with a bulldozer-type vehicle that required him to push or carry removed material off the road, which would alter the sides of the ROW more than conventional snowplows. [Note 22]

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The main issue in this case is the extent of Defendants’ rights in the ROW. Defendants claim deeded rights for their properties to use the ROW. Defendants also claim that Lots 12/10, 12/11, 12/11A, 14/20, and 14/21 have an easement by prescription to use the ROW for all purposes related to the operation and maintenance of cranberry bogs. [Note 23] Plaintiffs deny that Defendants have any deeded rights to use the ROW, but concede that Old Tuck has the prescriptive right to use the ROW to access the Ashley House and to access Lot 12/11 for all purposes related to the operation and maintenance of cranberry bogs. Plaintiffs refute Defendants’ rights in the ROW for any other property or purpose. Finally, Plaintiffs argue that Defendants have widened the ROW and seek a permanent injunction to prevent any further widening of the ROW. [Note 24] I shall address each of these issues in turn.

I. Deeded Rights in the ROW

Title experts for both Plaintiffs and Defendants agreed that the properties to the west and south of the West Branch (properties in the Haskell chain of title, i.e. Lots 12/10, 12/11, 12/11A, 14/20, and 14/21) have no deeded rights in the ROW. The ROW lies on the east and north side of the West Branch, and Haskell did not own any property on that side of the West Branch. As a result, Haskell could not have granted an easement over land to the east and north side of the West Branch. Both title experts also agreed that the only properties that could have deeded rights in the ROW are properties to the east of the West Branch (properties in the Stevens chain of title), which includes Ashley Excavating’s property on Lots 14/15C-3 and 13/14. Furthermore, there is no evidence of any right of way being granted over land on which the ROW passes for the benefit of any of Haskell’s land that is currently owned by Old Tuck, i.e. Lots 12/10, 12/11, 12/11A, 14/20, and 14/21. Therefore, I find that Old Tuck Lots 12/11, 12/11A, 12/10, 14/20, and 14/21 have no deeded rights in the ROW. [Note 25]

Defendants argue that properties in the Stevens chain of title on the east and north side of the West Branch, including Ashley Excavating’s properties on Lots 14/15C-3 and 13/14, have deeded rights in the ROW because the Stevens-Fisk Deed granted a right to pass and repass along a way that would be indicated by Stevens’ barn. As noted previously, the location of such barn is unknown. [Note 26] However, the barn could not have been located on Lot 14/14A, where the Y is located, as both title experts agreed that Stevens never owned Lot 14/14A. Given that Stevens did not own Lot 14/14A, he had no right of record to grant an easement to use the ROW across such land.

Defendants further assert that Lots 14/15C-3 and 13/14 have deeded rights to access the ROW because the Heleen Deed contains the right to pass over the ROW and the road to Eldridge Bog. Lots 14/15C-3 and 13/14, however, originate from Stevens and, as stated earlier, Stevens could not have granted an easement to use the ROW. Thus, Stevens’ successors could not have granted such an easement. Therefore, I find that Lots 14/15C-3 and 13/14 have no deeded rights in the ROW.

Old Tuck’s ownership of Lot 14/10 appears to have originated from both the Haskell and Stevens chains of title. In light of my determination that property descending from the Haskell and Stevens chains of title have no deeded rights in the ROW, I find that Lot 14/10 has no deeded rights in the ROW. [Note 27]

II. Prescriptive Rights in the ROW

An easement by prescription may be acquired through twenty years of uninterrupted, open, notorious, and adverse use. G. L. c. 187, § 2; Glenn v. Poole, 12 Mass. App. Ct. 292 , 292 (1980). The extent of a prescriptive easement is “fixed by the use through which it was created.” Lawless v. Trumbull, 343 Mass. 561 , 563 (1962). Use of the easement during the prescriptive period does not fix permanently the scope of the easement. Id. Open and notorious use is established by showing that the claimant’s use was “made without attempted concealment,” Foot v. Bauman, 333 Mass. 214 , 218 (1955), and is “such that the owner should have known of it.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). Adverse use is established by showing “lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See also Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959). Moreover, abundant evidence of more than twenty years of uninterrupted, open, and notorious use of a right of way creates a presumption that the use is adverse. See Glenn, 12 Mass. App. Ct. at 295 (internal citations omitted).

Plaintiffs concede that Old Tuck has a prescriptive easement for the ROW to access Lot 12/11 (except for Bog A12) for activities related to cranberry farming and to access the Ashley House. Defendants argue that the prescriptive rights exceed what Plaintiffs concede and state that the prescriptive rights apply also to Old Tuck Property 2, and includes earth removal and tree stump removal activities. This court shall address the scope of Defendants’ prescriptive rights in two parts, in context of Old Tuck Property 1 and Old Tuck Property 2.

A. Old Tuck Property 1 (Lots 12/11, 12/11A, and 12/10)

Old Tuck has owned the lots comprising Old Tuck Property 1 since at least 1983 and has continuously operated cranberry bogs on these properties since then. Plaintiffs’ acknowledgment that there is a prescriptive easement for Lot 12/11 relating to access to the Ashley House and for activities related to cranberry farm operations (except for Bog A12) indicates that Old Tuck’s use of Lot 12/11 was indeed open, notorious, and adverse. There is no evidence that Old Tuck attempted to hide its cranberry farming operations in any way nor is there any evidence that Old Tuck ever asked Plaintiffs for permission to use the ROW. Bog A12, previously a hay field, was constructed in 2000 and therefore this portion of Lot 12/11 has not been used for cranberry farming operations for the requisite minimum of twenty years to establish prescriptive rights in the ROW.

Plaintiffs’ Complaint does not address the Defendants’ rights in the ROW as they relate to Lots 12/11A and 12/10. These two lots are part of Old Tuck Property 1 and, like Lot 12/11, have been used for cranberry farming operations since they were purchased in 1982 and 1983. Old Tuck, but not Ashley Excavating, has used Lots 12/11A and 12/10 for activities related to cranberry farming for the same duration as Lot 12/11 without any objections from Plaintiffs. Therefore, I shall treat Lots 12/11A and 12/10 the same as Lot 12/11.

Cranberry farming activities include the normal maintenance and improvement activities described in 310 C.M.R. 10.04. See supra note 20. Ben Gilmore, Defendants’ expert on cranberry farming, testified that earth removal is essential for building and expanding cranberry bogs and water supplies. Scott testified that Old Tuck Property 1 is fully built-out and has no room for new bogs. As a result, there will be no need for any earth removal related to the construction and expansion of bogs on Old Tuck Property 1. [Note 28]

Plaintiffs allege that Defendants are using the ROW to operate a commercial stump dump on Old Tuck Property 1 by transporting stumps, which they have removed from their customers’ properties, to and from Old Tuck Property 1. Old Tuck’s compost pile on Old Tuck Property 1 does include tree stumps that have been removed as part of Old Tuck’s clearing activities. The compost pile is not a stump dump because a stump dump requires stumps to be buried; the stumps on Old Tuck Property 1 are not buried. Furthermore, the regulations promulgated under the Wetlands Protection Act include compost piles as a normal maintenance operation involved in cranberry farming activities. The Ashley’s have sometimes allowed third parties to use the ROW to place stumps in the compost pile. Transporting third parties’ tree stumps to a compost pile, however, is not a normal maintenance operation because these tree stumps do not come from clearing land on the property. Therefore, I find that tree stumps resulting from clearing land on Old Tuck Property 1 may be included in the compost pile but that neither Old Tuck nor Ashley Excavating may use the ROW to transport third parties’ tree stumps to or from Old Tuck Property 1.

As a result of the foregoing, and consistent with the above, I find that Old Tuck has a prescriptive easement in the ROW, limited in scope to those activities related to cranberry farming operations for all portions of Old Tuck Property 1 except for Bog A12.

Ashley Excavating sometimes parks its vehicles on Lot 12/11. Ashley Excavating was incorporated in 2002 and fails to demonstrate adverse use of the ROW for a period of at least twenty years. Therefore, I find that Ashley Excavating has no prescriptive right to access Old Tuck Property 1 using the ROW.

B. Old Tuck Property 2 (Lots 14/20 and 14/21)

Defendants argue that the construction of bogs on Lots 14/20 and 14/21 is an integral and continuing part of Old Tuck’s cranberry operations such that the prescriptive rights of Old Tuck Property 1 in the ROW should extend to Old Tuck Property 2. There are two main issues relating to Defendants’ claims of prescriptive rights over the ROW benefitting Lot 14/20 and Lot 14/21, both of which concern the length of Defendants’ adverse use. First, Old Tuck did not purchase these properties until 1998 when they were wooded lots and, therefore, they cannot demonstrate a period of twenty years of adverse use of the ROW that is necessary to establish prescriptive rights. Second, there is no basis for Ashley Excavating’s argument for prescriptive rights because its earth removal operations on Old Tuck Property 2 commenced in the early 2000s, just six or seven years before Plaintiffs commenced this action.

Moreover, after-acquired property may not be added to a dominant estate without the express consent of the owner of the servient estate. McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). Without such consent, the use of an easement to benefit the after-acquired property located beyond the dominant estate constitutes an overburdening (or overloading) of the easement. Id. Plaintiffs have not granted Defendants permission to add Lots 14/20 and 14/21 to Defendants’ prescriptive rights in the ROW. As such, Defendants’ prescriptive rights for Old Tuck Property 1 do not extend to Old Tuck Property 2. [Note 29] Therefore, I find that no prescriptive rights to the ROW have been established with respect to any operations by either Old Tuck or Ashley Excavating on Old Tuck Property 2.

C. Ashley Excavating Property (Lots 14/15C-3 and 13/14)

Plaintiffs’ Complaint does not address Lots 14/15C-3 and 13/14, but I shall address them as Ashley Excavating claims rights in the ROW benefitting these properties. Similar to Old Tuck Property 2, Lots 14/15C-3 and 13/14 fail to achieve prescriptive rights in the ROW. Ashley Excavating purchased these properties from Heleen in 2003, just four years before Plaintiffs commenced this action; these properties lack the necessary twenty years required to achieve prescriptive rights. Therefore, I find that Ashley Excavating has failed to demonstrate prescriptive rights to the ROW with respect to Lots 14/15C-3 and 13/14.

III. Alteration of Easement/Trespass

Plaintiffs allege that Defendants have significantly widened the ROW on Plaintiffs’ property over the last twenty years without Plaintiffs’ permission. Defendants argue that they have only made necessary repairs to the road and added the bumpout areas for safety reasons.

A prima facie case for trespass requires (1) proof of a plaintiff’s lawful possession of the disputed land and (2) illegal entry by the defendant. The New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707 (1943). “When an easement or other property right is created, every right necessary for its enjoyment is included by implication.” Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934). Improvements to a gravel road do not in and of themselves constitute an overburdening of an easement. Glenn, 12 Mass. App. Ct. at 296. Furthermore, “smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of the easement.” Id.

Plaintiffs’ possession of the land at issue is not disputed, but Plaintiffs fail to prove illegal entry. Old Tuck possesses a prescriptive easement to use the ROW for its cranberry operations on most of Old Tuck Property 1 and, thus, it has the right to ensure that the ROW is fit for its enjoyment of the easement. Although the ROW is wider than in the past, there is no evidence that it is solely because of Defendants’ activities. Several people have plowed the ROW over the years and may have thereby contributed to widening the road. Although Scott’s vehicle may remove more snow than a conventional snowplow, there is no evidence that he actually widened the ROW more than the others. Moreover, the trial record fails to establish the occurrence of an illegal entry when Scott created the bumpouts along the ROW, which were created for safety reasons. Scott testified that in creating the bumpouts, he “fix[ed the ROW’s] shoulders,” by placing compacted gravel and fill in areas where truck and vehicle traffic pulled off to the side of the ROW when encountering one another. This is not inconsistent with the testimony of Keese, who witnessed Scott improving a “depressed” area along the ROW. As a result of the foregoing, I find that Plaintiffs fail to prove Defendants’ illegal entry and that Plaintiffs’ claim for damages lacks any basis.

That being said, the trial record also indicates that the ROW is now in an appropriate condition for Defendants’ enjoyment of the easement to use the ROW for cranberry farming operations. As a result, I find that Old Tuck may not further widen or otherwise alter the existing ROW on Plaintiffs’ property but may conduct routine repairs or maintenance on the ROW when necessary to ensure that the ROW can be used in conjunction with cranberry farming activities.

Judgment to enter accordingly.