CHARLES F. SEARS, TRUSTEE OF ARROWHEAD FARMS REALTY TRUST [Note 1] vs. HIGH PINES CORPORATION and FREDERICK M. TONSBERG

Plaintiff Arrowhead Farms Realty Trust (the “Trust”) filed its unverified Complaint on March 30, 2004, 1) seeking pursuant to G. L. c. 185, § 1, to enforce its rights in a woods road (the “ROW”) located in Kingston, Massachusetts partly on land owned by the Trust (hereinafter defined as the Trust Property), partly on land owned by the O’Brien family (hereinafter defined as the O’Brien Property), and partly on land owned by Defendant High Pines Corporation (“High Pines”) (of which Defendant Frederick M. Tonsberg is President) (together, “Defendants”), 2) seeking pursuant to G. L. c. 231A, a declaratory judgment relative to the rights in the ROW, and 3) alleging a trespass by Defendants in their interfering with the Trust’s use of the ROW. Defendants filed an Answer on April 28, 2004. A pre-trial conference was held on April 22, 2009. The Trust filed its Amended Complaint on June 18, 2009, adding another parcel of which it is a part owner (hereinafter defined as the O’Brien Property) with alleged rights in the ROW, and adding William J. O’Brien (“William”), Mary Cheryl O’Brien (“William’s Wife”), and Mary Catherine O’Brien (“William’s Mother”) as additional Plaintiffs (the Trust and the O’Briens together, “Plaintiffs”). A trial was scheduled for July 23 and 24, 2009, then for October 1 and 2, 2009, and finally for December 17 and 18, 2009. A view and a one day trial in the Plymouth Superior Court were held on December 17, 2009. Post-trial briefs were filed on February 18, 2010, and at that time the matter was taken under advisement.

Testimony for Plaintiffs was given by Joseph Webby (land surveyor) and William (Plaintiff). There was no testimony given by Defendants. There were thirty-four 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. The Trust is the owner of property (the “Trust Property”) located off Brook Street in Kingston, Massachusetts, and shown as Lot 58 on Kingston Assessor’s Map 56 (“Map 56”). [Note 2] The Trust obtained title to the Trust Property by deed from Dennis P. O’Brien (“Dennis”) dated March 27, 1990, and recorded with the Registry at Book 9672, Pages 89. [Note 3] The Trust Property is a vacant lot and contains 7.97 acres as shown on Map 56. [Note 4] The Trust Property has no frontage on any road but is traversed by the ROW which leads out to Brook Street. [Note 5]

2. The Trust is the owner of a 1/3 interest in land located off Brook Street in Kingston, Massachusetts, and shown as Lot 5 on Map 65 (the “O’Brien Property”). [Note 6] The Trust obtained such interest in this parcel by deed from Dennis and Gladys M. O’Brien dated March 27, 1990, and recorded with the Registry at Book 9672, Page 91. [Note 7] The O’Brien Property, also a vacant lot, contains approximately twenty-one acres. Richard and William’s Mother (1/3 interest) and William [Note 8] (1/3 interest) hold the residual interest in the O’Brien Property, all by deed from Martha E. Hughes dated March 31, 1969, and recorded with the Registry at Book 3510, Page 701.

3. William purchased land on Brook Street from Paul Tobin by deed dated December 1, 1982, and recorded with the Registry at Book 5253, page 396 (the “O’Brien Residence”). He and his wife live there today. The O’Brien Residence is shown as Lot 47 on Map 56. [Note 9]

4. The Trust Property, the O’Brien Property and the O’Brien Residence all meet at a point; the northeasterly tip of the Trust Property, the northwesterly tip of the O’Brien Property and the southwesterly tip of the O’Brien Residence.

5. High Pines owns two parcels of land relevant to this action. The first parcel (“Defendant Property 1”), located on Brook Street in Kingston, Massachusetts formerly shown as Lot 53 (now shown as Lots 4-32, 4-33, 4-34, 4-35, 4-36 and a portion of Country Club Way) on Map 56. [Note 10] High Pines obtained title to Defendant Property 1 (containing approximately twenty-eight acres) by deed of David D. Holmes and Joseph B. Holmes dated January 23, 1997, and recorded with the Registry at Book 14944, Page 92. [Note 11] High Pines owns other property located off Brook Street and south of Lot 53, shown as Lot 128 on Block 10 (“Defendant Property 2”). Defendant Property 2, now the site of the Clubhouse [Note 12], contains approximately nineteen acres and was formerly used as a sand and gravel pit. High Pines obtained title to this Defendant Property 2 by deed of John R. Hamilton, Jr., Trustee of Kings Towne Realty Trust (Hamilton), dated January 15, 1997, and recorded with the Registry at Book 14911, Page 159. [Note 13] Defendant Property 1 and Defendant Property 2, in addition to various other Lots located on Brook Street and on Country Club Way, are the subject of a subdivision known as Indian Pond Estates IV as shown on subdivision plan titled “Plan of Land Indian Pond Estates IV a Subdivision located in Kingston, Massachusetts (Plymouth County) Prepared for: High Pines Corporation” dated September 9, 1996, and prepared by Consulting Engineers & Scientists, Inc. (the “Subdivision Plan”). The subdivision road is called Country Club Way. [Note 14]

6. The Trust Property and Defendant Property 1 abut. Map 56 shows a cart path (the ROW) designated by a dotted line running from Brook Street across Defendant Property 1 (Lot 4-32 and Country Club Way) before connecting to the Trust Property. The ROW is also shown on “Plan of Land in Kingston, Mass. prepared for William J. O’Brien et al” dated September 23, 2009, and prepared by Webby Engineering Associates, Inc. (the “2009 Plan”), on the Subdivision Plan, and on Block 10. At the time of the trial the ROW was approximately 12-13 feet wide.

7. In 1975, Dennis (the predecessor in title of the Trust to the Trust Property) and Edward Holmes (“Edward”) (father of David Holmes and Joseph Holmes, and predecessor in title of High Pines to Defendant Property 1) brought an action in Plymouth Superior Court (CA75-2428) (the “Superior Court Action”) against Hamilton (the predecessor of High Pines for Defendant Property 2) relative to Hamilton’s rights in the ROW. By Findings, Rulings and Orders dated July 21, 1981 (the “1981 Order”), the Plymouth Superior Court found that Hamilton had rights in the ROW, but limited those rights. [Note 15] The Superior Court Action was upheld by the Massachusetts Appeals Court in O’Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983).

8. At some point in time between 1975-1980 Edward, the owner of Defendant Property 1, told William he could use the ROW, but there is nothing in the trial record which indicates in conjunction with which property Edward gave William permission to use the ROW across Defendant Property 1. Between 1975 and 1980 William owned a 1/3 interest in the O’Brien Property and Dennis owned the undivided fee interest in the Trust Property and, with his wife, a 1/3 interest in the O’Brien Property. At some point in either the late 1980s or early 1990s David Holmes, Edward’s son, again told William that William and Dennis had a general right to use the ROW.

9. In 1996, High Pines filed the Subdivision Plan. The Certificate of Conditional Approval of a Definitive Plan for Indian Pond Estates IV was dated July 13, 1998 (the “Subdivision Approval”). Condition 15 stated as follows:

The definitive plan shall be revised and amended to depict the location on the ground of the so-called O’Brien cartpath, including a metes and bounds description based upon a field survey. In addition, the four corners of the location of said cartpath shall be located on the ground and bounds installed.

10. During the development and construction of Country Club Way, High Pines constructed a detention basin in the vicinity of the ROW and placed a boulder on the ROW at the boundary of the Trust Property and Defendant Property 1. The construction of Country Club Way resulted in a more severe slope between the Trust Property and Defendant Property 1.

11. Nemes Benea founded the Benea Block Corporation (the “Corporation”) in the late 1930s or early 1940s. The Corporation manufactured concrete blocks and operated a sand and gravel business on what is now Defendant Property 2. William married Nemes Benea’s granddaughter and started working for the Corporation in either 1962 or 1963. Nemes Benea sold the Corporation and Defendant Property 2 to his son Joseph Benea in 1963. William was involved with the graveling operation on Defendant Property 2 for the Corporation from 1963-1969, using the ROW to haul gravel out to Brook Street. [Note 16] His customers also used the ROW to pick up sand and gravel at the gravel pit (now Defendant Property 2) during this time. Joseph Benea sold Defendant Property 2 to Hamilton by deed dated January 10, 1969, and recorded with the Registry in Book 3495, Page 228. At that time the Corporation stopped its operations at Defendant Property 2, but continued at 32 Main Street in Kingston. Joseph Benea sold the Corporation to William in 1982. Hamilton sold Defendant Property 2 to High Pines by deed dated January 15, 1997, and recorded with the Registry at Book 14911, page 159.

12. William first used the ROW during the 1950s when William and his parents, typically on a monthly basis, would drive in William’s father’s car over the ROW to access the Trust Property. While on the Trust Property with his parents, William and his father (Richard) would chop wood and his family would enjoy pleasure walks. In the 1950s William’s father, uncles, and grandmother were the record owners of the Trust Property. William obtained his 1/3 interest in the O’Brien Property in 1969. Beginning in the early 1970s and continuing for some duration of time between two and five years, William stored cracked cement blocks on the ROW in the vicinity of both the Trust Property and the O’Brien Property. This use of the ROW was for the benefit of the Corporation’s business then located at 32 Main Street in Kingston. For several years during the early 1970s William and his brother Dennis cut oak trees and hired a contractor to cut and remove a majority of the pine trees on both the Trust Property and the O’Brien Property. William, Dennis, and the contractors used the ROW for access to both the Trust Property and the O’Brien Property to haul the chopped wood out to Brook Street using eighteen wheel trucks, ten wheel trucks, and dump trucks. William stored several oxen on the O’Brien Residence and walked them down the ROW and across both the Trust and O’Brien Properties from 1986-1989. Around 1990, in conjunction with the O’Brien Residence, William and his friends would occasionally snowmobile on the ROW.

13. By letter dated March 19, 1999, the Trust notified High Pines of High Pines’ violation of the Trust’s alleged rights in the ROW resulting from High Pines’ creation of a drainage ditch and their placing a boulder on the ROW at the intersection of the Trust Property and Defendant Property 1.

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Plaintiffs claim rights in the ROW as a result of the Superior Court Action, the Subdivision Approval, and prescriptive rights through continuous use of the ROW. Plaintiffs also claim that High Pines has trespassed on the ROW and prevented Plaintiffs’ use of such way. Defendants argue that the Superior Court Action and the Subdivision Approval are not relevant and that Plaintiffs do not meet the requirements to establish prescriptive rights. I shall address each of these issues in turn.

The Superior Court Action.

The Superior Court Action was brought in 1975 by Dennis, the predecessor of the Trust relative to the Trust Property, and Edward, the predecessor of High Pines relative to Defendant Property 1, against Hamilton, the predecessor of High Pines relative to Defendant Property 2. Dennis and Edward argued that Hamilton either had no rights in the ROW or that Hamilton was overburdening any rights he did have in the ROW. Hamilton argued he had openly, notoriously, and continuously for twenty years used the ROW as a means of entry and exit from Defendant Property 2 to Brook Street. Hamilton claimed prescriptive rights in the ROW to use trucks, including eighteen wheel tractor trailers, for access across the Trust Property and Defendant Property 1 to Brook Street. The Superior Court found that Hamilton did have prescriptive rights to use the ROW over the Trust Property and Defendant Property 1, but that Hamilton’s use of eighteen wheel tractor trailers overburdened the prescriptive easement. See supra, n. 15 (listing other limitations of Hamilton’s prescriptive rights).

The Superior Court determined that the ROW traversed both Dennis’ property (now the Trust Property) and Edward’s property (now Defendant Property 1) between Hamilton’s property (now Defendant Property 2) and Brook Street. The 1981 Order addressed the prescriptive rights of Hamilton in the ROW, but there was no finding that either Dennis or Edward had any easement rights in the portions of the ROW not located on their respective properties. As a result, I find that the Superior Court Action made no determination with respect to any easement rights of Plaintiffs in the ROW and thus the 1981 Order is irrelevant in determining whether Plaintiffs have prescriptive rights in the portions of the ROW which traverse Defendant Property 1 and Defendant Property 2.

The Subdivision Approval.

Condition 15 of the Subdivision Approval required High Pines, the owner of the Indian Pond Estates IV subdivision, to depict the location of the ROW on the Subdivision Plan, but did not specify who had rights in the ROW. The purpose for demarcating the ROW on the Subdivision Plan and the intention of the Planning Board is uncertain. In creating conditions of approval, however, the Planning Board had no authority to declare prescriptive rights over another person’s property. Therefore, I find that the Subdivision Approval is irrelevant to the respective prescriptive rights or fee interests of the parties to this action in the ROW.

Prescriptive Rights.

In Massachusetts, one may obtain an easement by prescription through “uninterrupted, open, notorious and adverse use for twenty years . . . .” Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v. Poch, 321 Mass. 323 (1947); Brown v. Sneider, 9 Mass. App. Ct. 329 (1980); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). See also G. L. c. 187, § 2. It is not necessary for one claiming an easement by prescription to show that his or her possession is exclusive. Labounty v. Vickers, 352 Mass. 337 , 349 (1967); Brooks, Gill and Co., Inc. v. Landmark Properties, 217 Ltd. Partn., 23 Mass. App. Ct. 528 , 532 n.1 (1987). The party claiming an easement by prescription has the burden of proof and persuasion on each of the four elements of the test. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Failure to provide a sufficiency of evidence on any of the elements defeats the entire prescriptive easement claim. Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). Finally, a party claiming an easement by prescription must show that his use has been exclusive in the sense that he relies on his own use or those under whom he claims, and not on the use by third parties. Labounty, 352 Mass. at 349. In the case at bar, Plaintiffs allege that they have satisfied the requirements for a prescriptive easement in the ROW. High Pines argues that Plaintiffs cannot show twenty years of continuous use, and also argues that the use of the ROW by Plaintiffs was permissive. I shall address the prescriptive rights issue with respect to the Trust Property and the O’Brien Property.

A. The Trust Property.

1. Open and Notorious Use

To satisfy this element, Plaintiffs’ use of the ROW must have been so apparent that the owner may be presumed to have known of it without proof of actual knowledge. See Foot v. Bauman, 333 Mass. 214 , 218 (1955). For several years, Plaintiffs used the ROW to access both the Trust Property and the O’Brien Property with an array of heavy duty vehicles including eighteen wheel trucks, ten wheel trucks, and dump trucks. Plaintiffs made absolutely no attempt to keep their use of the ROW hidden or discrete. [Note 17] As a result, I find that Plaintiffs’ use of the ROW in conjunction with the Trust Property has been open and notorious.

2. Continuous Use for Twenty Years

The evidence in the record indicates sporadic use of the ROW by the owners of the Trust Property. [Note 18] It is true that some variation in use is permitted for the purpose of gaining prescriptive rights; however, such use must be continuous for a period of at least twenty years. In the case at bar there appear to be several major gaps in continuous use of the ROW in conjunction with the Trust Property. William’s testimony regarding use of the ROW to access the Trust Property for pleasure with his parents (Richard and William’s Mother) is limited to some period of time (no more than ten years) prior to 1960 (when Richard had a part ownership interest in the Trust Property). There is no evidence of use of the ROW in conjunction with the Trust Property between 1960 and the early 1970s when William and Dennis (the then owner of the Trust Property) began chopping wood there. William’s use of the ROW between 1963-1969 to transport gravel over the Trust Property was in conjunction with the gravel pit, now Defendant Property 2. In fact, this use burdened the Trust Property for the benefit of Defendant Property 2, and Plaintiffs cannot tack prescriptive use of the ROW in conjunction with another parcel, separately owned and with no privity, to their use of the ROW in conjunction with the Trust Property. Therefore, relative to the Trust Property, there is no evidence that the owners of the Trust Property used the ROW traversing Defendant Property 1 to access the Trust Property except for sporadic use in the 1950s, no use in the 1960s, several years of chopping wood which ceased in the mid 1970s, and nothing more since that time. As a result I find that Plaintiffs’ use of the ROW in conjunction with the Trust Property has not been continuous for any period of twenty years.

3. Adverse Use

It is well established law in Massachusetts that permissive use is inconsistent with adverse use. Ryan, 348 Mass. at 265. It is also well established, however, that “where the use of the land is actual, open and exclusive for a period of twenty years, non-permissiveness of the use may be inferred.” Tottman v. Malloy, 431 Mass. 143 , 147 (2000).

Plaintiffs argue that their use of the ROW was adverse and that High Pines has not met its burden to show otherwise, as High Pines has offered no evidence rebutting a possible presumption that the use of the ROW was adverse to Edward and his sons, the predecessors in title to Defendant Property 1. During William’s testimony, however, he twice declared that Edward gave him permission to use the ROW across Edward’s property (Defendant Property 1). On cross-examination William answered that Edward told him that he could use the ROW. What is more convincing, is that during Plaintiffs’ counsel’s attempt to rehabilitate William, William answered “[a]t one time probably 30 years ago [Edwards Holmes] said I could use the property.” William also testified that David Holmes told him, either in the late 1980s or early 1990s, that William and Dennis could use the ROW.

Plaintiffs are correct that, provided the other elements of prescriptive rights are met, there is a presumption of adverse use, but when the party claiming prescriptive rights admits on the record that he was given permission, it is clearly improper to infer any claim of right through prescriptive use. William’s testimony that he was given permission by Edward, combined with the evidence that David Holmes gave William and Dennis permission to use the ROW, is more than enough for High Pines to overcome their burden to prove that the use of the ROW was permissive. [Note 19] As a result, I find that Plaintiffs’ use of the ROW in conjunction with the Trust Property was permissive, not adverse.

B. The O’Brien Property.

1. Open and Notorious Use

The use of the ROW to access the Trust Property and the O’Brien Property are essentially identical. The ROW was used to access both parcels with heavy duty vehicles, thus for the same reasons articulated in the open and notorious analysis relative to the Trust Property, supra, I find that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property has been open and notorious.

2. Continuous Use for Twenty Years

The O’Brien Property, to which William acquired his 1/3 interest in 1969, was used in similar manner to the Trust Property. Plaintiffs, however, can rely on William’s use of the ROW to access the O’Brien Property, as William was a part owner of this parcel. Similar to the Trust Property, the evidence shows sporadic use of the ROW in conjunction with the O’Brien Property.

William’s use of the ROW relative to the O’Brien Property includes using the ROW to access the O’Brien Property in order to store cement blocks along the ROW and on the O’Brien Property in the early 1970s, and chopping trees with his brother Dennis, and having trees chopped and removed by a contractor, in the early 1970s. [Note 20] William’s testimony shows that use of the ROW to access the O’Brien Property began in the 1970s shortly after acquiring his 1/3 interest in this parcel in 1969. William’s testimony, however, shows several major gaps in time of use of the ROW in conjunction with the O’Brien Property. There is no evidence that the owners of the O’Brien Property used the ROW to traverse Defendant Property 1 to access the O’Brien Property except to store cracked cement blocks and to chop wood, both activities having commenced and ceased in the early to mid 1970s. As a result I find that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property has not been continuous for any period of twenty years.

3. Adverse Use

William’s testimony, discussed, supra, in the permissive analysis of the Trust Property, is relevant to both the Trust Property and the O’Brien Property. Both Edward and his sons gave William general permission to use the ROW at some point between 1975-1980. It seems clear that the Holmes never intended to limit their permission to use the ROW in conjunction with either the Trust Property or the O’Brien Property. Thus, I find that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property was permissive, not adverse. [Note 21]

Conclusion

As a result of the foregoing, I find that Plaintiffs are not able to show that they have gained prescriptive rights in the ROW for the benefit of the Trust Property or the O’Brien Property. As such, I find that Defendants have not trespassed on Plaintiffs’ use of the ROW.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

December 7, 2010