CEDRIC and ELIZABETH VANZURA, and MICHAEL and MARY DONAHUE v. BENJAMIN H. HAMMER

Plaintiffs Robert C. Stimson and Cynthia J. Stimson (the "Stimsons") filed their Verified Complaint on September 25, 2007, seeking 1) pursuant to G. L. c. 260, § 1, to require Defendant Benjamin H. Hammer ("Hammer") to try title relative to rights in Melville Walk, Alice Walk and a beach (the "Beach") at the end of Melville Walk, 2) a declaratory judgment pursuant to G. L. c. 231A, relative to rights in Melville Walk and the Beach, 3) slander of title, and 4) trespass by Hammer on Melville Walk and the Beach. On the same day the Stimsons filed an application for Preliminary Injunction to prohibit Hammer from using Melville Walk, Alice Walk and the Beach. By Order dated October 10, 2007, this court denied the Stimson's Motion for Preliminary Injunction. Hammer filed his Answer on November 8, 2007. [Note 1] A case management conference was held on November 14, 2007. The Stimsons filed an Amended Complaint on July 16, 2008, adding Michael and Mary Donahue (the "Donahues") as Plaintiffs, and deleting the counts relative to try title, slander of title and trespass. [Note 2], [Note 3] Hammer filed his Answer to the Amended Complaint on August 5, 2008.

The Stimsons filed a Motion for Partial Summary Judgment on February 15, 2008. [Note 4] A hearing was held on the motion on April 29, 2009, at which time the motion was denied because of material facts at issue. On June 3, 2009, the Stimsons and the Vanzuras (as hereinafter defined) filed a Joint Motion to Dismiss Counts I, III and IV of the original Verified Complaint, and to substitute Cedric and Elizabeth Vanzura (the "Vanzuras") for the Stimsons. [Note 5] The motion was heard and allowed on June 16, 2009. Hammer filed his Cross-claim of Prescriptive Rights to Melville Walk and the Beach on September 14, 2009. [Note 6] The Venzuras filed their Answer on December 2, 2009, and the Donahues filed their Answer on December 4, 2009. A pre-trial conference was held on February 10, 2010. A site view and a trial in the Hingham District Court were held on June 3, 2010. At the trial, the Vanzuras and the Donahues ("Defendants") argued a Motion for a Directed Verdict, which this court denied. Defendants filed their post-trial briefs on September 13, 2010, and Hammer filed his post-trial brief on September 14, 2010, and at that time the matter was taken under advisement.

Testimony was given by Hammer's witnesses Richard O'Brien ("O'Brien") (prior owner of property owned by Hammer (the "Hammer Property")), Virginia O'Connell ("O'Connell") (owner of property located at 143 Downer Avenue and Melville Walk), Andrea Mantineo ("Mantineo") (prior owner of the Hammer Property), and Defendants' witnesses Mary Donahue (co-owner of property owned by the Donahues (the "Donahue Property")), Michael Donahue (co-owner of the Donahue Property), Louis Scotton (former owner of the Vanzura Property), and Kathleen Walsh (prior owner of the Donahue Property). Twenty-four exhibits were submitted into evidence. Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Hammer owns property located at 144 Downer Avenue (the Hammer Property). The chain of title for the Hammer Property is as follows:

a) Leo T. Scarry and Ann T. Scarry conveyed the Hammer Property to Richard J. O'Brien by deed dated March 18, 1958, and recorded with Plymouth County Registry of Deeds (the "Registry") at Book 2621, Page 421.

b) Richard J. O'Brien conveyed the Hammer Property to himself and Rita H. O'Brien by deed dated October 15, 1958, and recorded with the Registry at Book 2669, Page 160.

c) Richard J. O'Brien conveyed his interest in the Hammer Property to Rita H. O'Brien by deed dated September 12, 1986, and recorded with the Registry at Book 7107, Page 239.

d) Rita H. O'Brien conveyed the Hammer Property to Jean Renard and Andree Renard by deed dated October 18, 1989, and recorded with the Registry at Book 9417, Page 249.

e) Jean Renard and Andree Renard conveyed the Hammer Property to Andrea A. Mantineo by deed dated August 19, 1999, and recorded with the Registry at Book 17784, Page 220.

f) Andrea A. Mantineo conveyed the Hammer Property to Benjamin H. Hammer by deed dated August 23, 2005, and recorded with the Registry at Book 31195, Page 106.

2. The Vanzuras own property located at 5 Melville Walk (the Vanzura Property). The chain of title for the Vanzura Property is as follows:

a) Donald W. Scott and Ida C. Scott conveyed the Vanzura Property to James W. Wheaton and Nancy D. Wheaton by deed dated January 25, 1968, and recorded with the Registry at Book 3422, Page 196.

b) James W. Wheaton and Nancy D. Wheaton conveyed the Vanzura Property to Michael Gondouin and Suzanne C. Gondouin by deed dated May 25, 1973, and recorded with the Registry at Book 3893, Page 731.

c) Michael Gondouin and Suzanne C. Gondouin conveyed the Vanzura Property to John Jancaitis and Elisabeth W. Jancaitis by deed dated October 9, 1976, and recorded with the Registry at Book 4208, Page 642.

d) John E. Jancaitis and Elisabeth W. Jancaitis conveyed the Vanzura Property to Lewis N. Scotton and Amy C. Scotton by deed dated August 18, 1980, and recorded with the Registry at Book 4879, Page 464.

e) Lewis N. Scotton and Amy C. Scotton conveyed the Vanzura Property to Amy C. Scotton by deed dated April 44, 1989, and recorded with the Registry at Book 9077, Page 295.

f) Amy C. Scotton conveyed the Vanzura Property to Lewis N. Scotton and Amy C. Scotton by deed dated August 17, 1999, and recorded with the Registry at Book 17824, Page 96.

g) Lewis N. Scotton and Amy C. Scotton conveyed the Vanzura property to John R. Henesey and Sara F. Henesey by deed dated June 29, 2000, and recorded with the Registry at Book 18656, Page 295.

h) John R. Henesey and Sara F. Henesey conveyed the Vanzura Property to Robert C. Stimson and Cynthia J. Stimson by deed dated October 18, 2001, and recorded with the Registry at Book 20753, Page 164.

i) Robert C. Stimson and Cynthia J. Stimson conveyed the Vanzura Property to Cedric J. Vanzura and Elisabeth K. Vanzura by deed dated April 29, 2009, and recorded with the Registry at Book 37138, Page 271.

3. The Donahues own property located at 2 Alice Walk (the Donahue Property). The chain of title for the Donahue Property is as follows:

a) Nancy Alden Hunt, Executrix, conveyed the Donahue Property to Thomas K. Glasheen and Kathleen L. Glasheen by deed dated November 25, 1968, and recorded with the Registry at Book 3486, Page 73.

b) Thomas K. Glasheen and Kathleen L. Glasheen conveyed the Donahue Property to themselves as tenants in common by deed dated February 8, 1977, and recorded with the Registry at Book 4240, Page 716.

c) Thomas K. Glasheen and Kathleen L. Glasheen conveyed the Donahue Property to Kathleen L. Glasheen by deed dated March 25, 1983, and recorded with the Registry at Book 5319, Page 150.

d) Kathleen L. Walsh (formerly Kathleen L. Glasheen) conveyed the Donahue Property to Michael Donahue and Mary R. Donahue by deed dated April 10, 1985, and recorded with the Registry at Book 6047, Page 147.

e) Michael Donahue and Mary R. Donahue conveyed a portion of the Donahue Property (142 square feet) to Robert C. Stimson and Cynthia J. Stimson by deed dated April 14, 2009, and recorded with the Registry at Book 37138, Page 266.

4. O'Brien (who owned the Hammer Property from 1958 to 1986) and his family used the Beach for beach parties, watching fireworks, walking, and loading the family boat for some period of time between 1958 and the early 1980s. O'Brien and his wife separated in 1983, at which time he moved out of the Hammer Property, and divorced in 1984. O'Brien sold his interest in the Hammer Property to his wife in 1986.

5. Jean and Andree Renard (the "Renards") (who owned the Hammer Property from 1989-1999) used the Beach at times during the period 1989 to 1999 for swimming, walking, reading and sitting.

6. Mantineo (who owned the Hammer Property from 1999-2005) used the Beach on a regular basis with her two young daughters during the period 1999-2004. Such use included walking, sitting, attending ice cream socials, and beach clean-up.

7. O'Connell has lived at her mother Amyra O'Connell's property off and on since 1969 (when she was five years old).

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The central issue in this case is whether Hammer has obtained an easement by prescription in the Beach and Melville Walk as access to the Beach. [Note 7] Defendants argue that Hammer has not met the statutory requirements for 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. Specifically, Hammer may be entitled to a prescriptive right relative to the Beach, and Melville Walk as access to the Beach, if it is shown by clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years. 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). Hammer, as the claimant, bears the burden of proof on each and every element mentioned above. 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). This court must look into the evidence admitted at trial to determine whether Hammer satisfied his burden of proving each element required for prescriptive rights.

The first issue is whether Hammer and his predecessors' use was sufficiently "open and notorious". The use by Hammer must be "open and notorious" to "secure to the owner [of the affected land] a fair chance of protecting" his or her property interests. Foot v. Bauman, 333 Mass. 214 , 218 (1955). Defendants asserted that Hammer failed to meet his burden of proving the "open and notorious" use. For a use to be found notorious, it is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use. Lawrence v. Concord, 439 Mass. 416 , 421-422 (2003). The nature of the use is relevant to determine whether a use is "open and notorious". (Tinker v. Bessel, 213 Mass. 74 , 76 (1912) states that "[t]he extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land.") Courts have found use of a beach property is "open and notorious" if there is a use of bathing, picknicking, and all recreational activities for which beach property is seasonally used. See, e.g. Labounty v. Vickers, 352 Mass. 337 (1967). In this case the prior owners of the Hammer Property (O'Brien, the Renards, and Mantineo) generally enjoyed walking, having parties, sun bathing and boating at the Beach on a seasonal basis. O'Brien testified that he, his wife and his eight children had beach parties, watched fireworks, walked and loaded their boat at the Beach. Mantineo testified that she walked the Beach with her two daughters, sat on a bench there, and attended ice cream socials and beach cleanup. O'Connell testified that she saw the Renards swim, walk, read and sit on the Beach. [Note 8] I find that such uses are open and notorious use for beach purposes. The second issue is whether Hammer and his predecessors' use was adverse to Defendants. Defendants asserted that Hammer failed to prove the use of the Beach was adverse to them since they knew of the beach use and thus there was implied permission. However, "adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc., 347 Mass. at 763. Defendants knew some of the prior owners of the Hammer Property, but there is no evidence of any conversations between the parties or other evidence to indicate that Hammer's predecessors ever received permission to use the Beach or Melville Walk. [Note 9] As a result, I find that Hammer and his predecessors' use of the Beach was adverse to Defendants.

The third issue is whether Hammer has proved that his and his predecessors' use was continuous or uninterrupted over a period of not less than twenty years. At trial, Hammer advised this court that his period of prescriptive use on which he would rely was from 1983 to 2003. [Note 10] However, Hammer failed to prove the continuous use of the Beach and Melville Walk between 1983 and 2003. O'Brien, a prior owner of the Hammer Property, admitted at trial that, though he used the Beach at times between 1958 and the early 1980s, [Note 11] he moved out of the Hammer Property in approximately 1983 when he separated from his wife, received a divorce in 1984, and then sold the Hammer Property to his wife in 1986. [Note 12] There is no evidence of use of the Beach by O'Brien's wife between 1986 to 1989, when she sold the Hammer Property. [Note 13] As a result, O'Brien did not establish a time line for the regular usage of the Beach within the time period between 1983 and 1989. There is no testimony from the Renards, the owners of the Hammer Property from 1989 to 1999. O'Connell, a neighbor, testified that she saw the Renards use the Beach on week-ends on a seasonal basis, but such evidence failed to prove the continued and regular use by the Renards from 1989 to 1999. [Note 14] Mantineo testified that between 1999 and 2004 (when the fence was put up on Melville Walk) she used the Beach on a regular basis with her two young daughters.

As a result of the foregoing, Hammer has significant gaps in the use of the Beach by his predecessors. There was no continued or uninterrupted use of the Beach from 1983 to 2003; there was a gap from 1983 or 1984 to 1989 relative to O'Brien's use, and there was spotty evidence relative to the use of the Beach by the Renards from 1989 to 1999. [Note 15] As a result of the foregoing, I find that Hammer and his predecessors did not establish use of the Beach, Alice Walk or Melville Walk for a period of twenty years. Consequently, Hammer is unable to prove prescriptive rights in the Beach, Alice Walk or Melville Walk.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice