Plaintiffs BTR Ventures, LLC (BTR) and Benson T. Ross (Ross) [Note 1] filed a verified Complaint on October 26, 2006, pursuant to G. L. c. 231A, seeking a Declaratory Judgment that (1) Defendants Deborah Raptopoulos and Vassilios Raptopoulos do not own, and do not have the right to use, a right of way (the Disputed Area) located between land owned by BTR and Defendants in Edgartown, Massachusetts, and (2) Plaintiffs have title to the Disputed Area through adverse possession. [Note 2] Plaintiffs also sought damages against Defendants for trespass on Plaintiff Property, as hereinafter defined, pursuant to G. L. c. 185 §§ 1(k) and (o), violations of their civil rights, and intentional infliction of emotional distress. [Note 3] On the same day Plaintiffs filed their Motion for Lis Pendens, which was heard on November 14, 2006, and allowed, subject to clarification of the legal description of the Disputed Area. A second Lis Pendens hearing was held on November 21, 2006, and Plaintiffs Memorandum of Lis Pendens was allowed on November 30, 2006.
On December 15, 2006, Defendants filed a Motion to Dismiss, arguing that Plaintiffs could not meet the requirements of adverse possession for title to the Disputed Area. On January 3, 2007, Plaintiffs filed an Opposition to Defendants Motion to Dismiss. On January 4, 2007, this court heard and denied Defendants Motion to Dismiss because of a dispute over material factual issues. Defendants filed their Answer and Counterclaim on February 5, 2007, alleging slander of title and breach of settlement agreement. [Note 4] Plaintiffs filed their Reply to Counterclaim on April 23, 2007. Plaintiffs filed their Motion for Preliminary Injunction on December 11, 2007. A hearing was held on this motion on December 28, 2007, at which time the parties indicated that they would attempt to resolve the preliminary injunction issues themselves. This court gave them until January 4, 2008, to do so. The parties reported that they were unable to resolve the matter themselves and on January 14, 2008, this court issued a preliminary injunction Order granting Defendants, their family, guests, and invitees the right to use a portion of a driveway (the Driveway) located within the Disputed Area for pedestrian purposes to access South Water Street. This court also granted Plaintiffs, their guests, and their invitees, the right to use the Driveway and to maintain the remainder of the Disputed Area in its present condition. [Note 5]
On February 6, 2008, the parties filed a Joint Pre-Trial Memorandum, in which they agreed upon certain facts and exhibits. On February 27, 2008, Defendants filed their Motion in Limine to Exclude Evidence Contradicting the Plaintiffs Judicial Admission Regarding the Way Bounding the Raptopoulos Property. On March 18, 2008, Plaintiffs filed an Opposition to the Raptopouloses Motion in Limine to Exclude Evidence. On March 26, 2008, Defendants Motion in Limine was heard and denied by this court.
A site view was held on May 7, 2008, and on May 8 and 9, 2008, the first two days of a four-day trial was held at the Daniel Fisher House in Edgartown, Massachusetts. On July 16 and 17, 2008, the third and fourth days of trial were held at the Land Court in Boston. Testimony at trial was given by the following witnesses for Plaintiffs: Hope Kingsbury Register (Plaintiffs neighbor), Sharon Smith Purdy (Plaintiffs real estate broker), James Reynolds (BTRs attorney), Walter Carell (Plaintiffs landscape architect), Priscilla B. Summers (BTRs predecessor in title), Glen F. Provost (Plaintiffs land surveyor), David LaRue (landscape architect), and Benson Tilford Ross (Plaintiff). Defendants trial witnesses include: Jan Grabowski (Defendants caretaker and carpenter), Lilah Raptopoulos (Defendants daughter), Vassilios Raptopoulos (Defendant), Olga-Laurie Levin (Deborah Raptopoulos invitee), Vanessa Raptopoulos (Defendants daughter), Alexandra Ellison (Defendants invitee), and Deborah Raptopoulos (Defendant). One hundred and ten exhibits were admitted into evidence. On September 19, 2008, Plaintiffs and Defendants filed their Post-Trial Briefs, at which time the case went under advisement.
Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. BTR is the record owner of property located at 13 Atwood Circle, Edgartown, Massachusetts (Plaintiff Property). Plaintiff Property is shown as Lot 47 on the Town of Edgartown (the Town) Assessors Map No. 29B (the Assessors Map).
2. Defendants are record owners of property located at 7 Cummings Way in Edgartown, Massachusetts (Defendant Property). Defendant Property is shown as Lot 76 on the Assessors Map.
3. The Disputed Area is shown as a twenty-five foot wide way on the Revised Plan of Land in Edgartown, Mass. dated February 23, 1950, prepared by Everett M. Brooks Co. (Registration Plan No. 17955B) (the 1950 Plan). [Note 6] Plaintiff Property and Defendant Property are separated by the Disputed Area. The Disputed Area is also shown on the Assessors Map as a 25' Way, but the Disputed Area is not assessed by the Town.
4. Plaintiff Property, Defendant Property, and the Disputed Area were originally owned by a common grantor, Allen Mayhew (Mayhew), who acquired title to the parcels and additional surrounding land (the Mayhew Parcel) in 1912 by a Commissioners Deed dated December 3, 1912, recorded in the Registry at Book 131, Page 269.
5. Mayhew conveyed a parcel of land located between Plaintiff Property and South Water Street, which included a northerly extension of the Disputed Area that would connect Plaintiff Property to South Water Street (the Norton ROW), to his sister, Matilda Norton (Norton), by deed dated November 26, 1913, recorded in the Registry at Book 132, Page 500 (the Norton Deed). The Norton ROW is shown as a Way 25 ft. wide leading from South Water Street to Plaintiff Property on a plan titled Plan of Land in Edgartown dated September 13, 1940, prepared by Everett M. Brooks (Registration Plan No. 17955A) (the 1940 Plan). Through the Norton Deed, Mayhew reserved no rights over the Norton ROW to South Water Street for the benefit of his remaining land.
Defendants Chain of Title.
6. Mayhew conveyed a parcel of land that included Defendant Property to Caroline P. Boardman (Boardman) by deed dated March 20, 1914, recorded in the Registry at Book 135, Page 78 (Boardman Deed). This deed describes the easterly boundary of the parcel conveyed as eighty-nine feet by a twenty-five foot wide way to be laid out. The westerly boundary is described as seventy-eight feet by a roadway (Cummings Way). The Boardman Deed purports to convey a right of way for all purposes to and from the granted premises to South Water Street in and over the two ways [the Disputed Area and Cummings Way] above mentioned. [Note 7]
7. By deed dated August 29, 1916, and recorded in the Registry at Book 141, Page 290 (the Brier Deed), Boardman conveyed Defendant Property to Mary A. Brier (Brier), including an access easement over the Disputed Area out to South Water Street. [Note 8] The Brier Deed was the first occasion on which Defendant Property was separately conveyed.
8. By deed dated December 6, 1929, and recorded in the Registry at Book 189, Page 437, Brier conveyed Defendant Property to Sophia B. Terra. [Note 9]
9. Evelyn VonKamecke conveyed Defendant Property to Theodore VonKamecke and Evelyn VonKamecke (the VonKameckes) as joint tenants by deed dated August 15, 1978, and recorded in the Registry at Book 360, Page 14.
10. By deed dated September 2, 1987, recorded in the Registry at Book 483, Page 224, the VonKameckes conveyed Defendant Property to James E. Muller, Trustee of Marthas Vineyard Family Trust.
11. Defendants took title to Defendant Property by deed dated November 15, 1993, from James E. Muller, Trustee of Marthas Vineyard Family Trust to Defendants, recorded in the Registry at Book 620, Page 490 (Defendants Deed). Defendants Deed describes Defendant Property as bounded EASTERLY by way, Eighty-nine (89) feet.
Plaintiffs Chain of Title.
12. Mayhew died in 1916. By deed dated April 10, 1923, and recorded in the Registry at Book 159, Page 222 (the Elmer Deed) the heirs of Mayhew, including his sister Norton, conveyed the land on the east side of the Disputed Area, including Plaintiff Property (the Elmer Lot) to Elmer E. West (Elmer West). The Elmer Deed described the westerly boundary of the Elmer Lot as 439.5 feet by said King land and land formerly of Allen Mayhew, without reference to a way or the Disputed Area.
13. By deed dated February 19, 1924, and recorded with the Registry at Book 159, Page 400, Norton conveyed to Elmer West (holder of the Elmer Lot at the time) the use of the Norton ROW for all purposes to South Water Street. [Note 10]
14. By deed dated April 18, 1924, and recorded at the Registry at Book 159, Page 430, Elmer West conveyed the Elmer Lot, including the use of the Norton ROW, to E. Bonnar Atwood (Atwood). This deed described the Elmer Lots western boundary as land formerly of Mayhew.
15. Atwood filed a subdivision plan of the Elmer Lot titled Topographical Map of Land in Edgartown, Mass. Belonging to E. Bonnar Atwood dated August 4, 1926, and prepared by Everett Brooks (the 1926 Plan) in the Registry at Plan Book 5, Pages 18. Plaintiff Property is shown as Lot 1 on the 1926 Plan. Neither the Disputed Area nor the Norton ROW is shown on the 1926 Plan.
16. In 1928, Lydia M. Bonnar (Bonnar) acquired deeded rights in the Elmer Lot and the Norton ROW from Atwood. [Note 11] By deed dated April 27, 1928, and recorded in the Registry at Book 178, Page 293, Bonnar conveyed Plaintiff Property and rights in the Norton ROW to Percy D. West (Percy West). [Note 12] The description of Plaintiff Property in this conveyance referred to Plaintiff Propertys western boundary as land formerly of Mayhew.
17. Bonnar deeded the remainder of the Elmer Lot to Eleanor Bonnar Atwood, Trustee of the Atwood Realty Trust (the Atwood Trust), by deed dated December 4, 1937, and recorded in the Registry at Book 195, Page 416. By document dated February 28, 1941, Registration No. 17955, the Atwood Trust filed a registration petition for land shown on the 1940 Plan. The 1940 Plan does not show the Disputed Area.
18. By deed dated June 10, 1974, and recorded in the Registry at Book 317, Page 505, Percy West deeded Plaintiff Property and rights in the Norton ROW to Percy West and Mildred H. West, as tenants by the entirety.
19. By deed dated February 4, 1986, and recorded with the Registry at Book 441, Page 668, Percy West, surviving tenant by the entirety, deeded Plaintiff Property and rights in the Norton ROW to Priscilla B. Summers and Robert West, as tenants in common. [Note 13]
20. By deed dated July 15, 2005, and recorded in the Registry at Book 1048, Page 347, BTR took title to Plaintiff Property by deed (the Plaintiff Deed) from Priscilla B. Summers. [Note 14]
Use of the Disputed Area.
21. The Disputed Area consists of the following: (1) the Driveway, which provides access between Plaintiff Property and South Water Street, via the Norton ROW; (2) two narrow strips of land, each approximately five-feet wide (the Grass Strips), one on either side of the Driveway; and (3) a strip of land on which a wild and heavily brambled hedge (the Hedge) grows, separating the western Grass Strip from Defendant Property. [Note 15] The Driveway leads to the garage (the Garage) in the southwest corner of Plaintiff Property. The Driveway includes a bumpout (the Bumpout) located near the Garage that is used to turn vehicles around. [Note 16] The Grass Strips and the Hedge slope upward from Plaintiff Property toward Defendant Property.
22. In 1929, Percy West and his wife Mildred built the family home at Plaintiff Property and moved in with their four year old daughter (Summers). At that time, Plaintiff Property had a South Water Street address. Between 1929 and 1943, the only access to Plaintiff Property from South Water Street was over the Norton ROW and the Disputed Area. Summers testified that when she lived at Plaintiff Property during her childhood (from 1929 to 1943), the Driveway was rutted and partially covered with crushed stone shells. Summers and her family used the Driveway to access their property during their time living at Plaintiff Property from 1929 to 1984. Between 1943 and the time she moved back to Plaintiff Property in 1984 or 1985, Summers regularly returned to Plaintiff Property to visit her parents. [Note 17] Summers lived at Plaintiff Property from 1984 or 1985 until 2005 when she conveyed the property to BTR.
23. While trial testimony is unclear when exactly the Grass Strips were first planted, Summers testified that they were in existence during her childhood, i.e. prior to 1945, when Summers father, Percy West, would mow (or hire someone to mow) the Grass Strips. [Note 18] Aerial photographs show that the Grass Strips were present on April 8, 1969. Upon her return to Plaintiff Property, Summers planted a number of shrubs and other plants in the western Grass Strip. [Note 19]
24. Summers observed no changes in the Driveway from her childhood days when she moved back to Plaintiff Property in 1984 or 1985.
25. Upon returning to Plaintiff Property in 1984 or 1985, Summers made a number of changes to Plaintiff Property, including regrading the Driveway, laying peastone in the Driveway, planting a border garden within the western Grass Strip, and installing railway ties around the Bumpout.
26. The western Grass Strip and the Driveway have been used for pedestrian access from South Water Street to Defendant Property on a number of occasions, commencing in 1993 when Dr. Muller showed Dr. Raptopoulos Defendant Property. [Note 20]
27. In 1994, Summers hired David LaRue to install an irrigation system on either side of the Driveway on both Grass Strips.
28. In 2006, Plaintiffs caused the Driveway to be widened and moved to the westaway from the house on Plaintiff Propertyso that the Driveways entire western line was approximately equal to where the Bumpout previously existed.
The central issue in the instant matter involves the parties rights in the Disputed Area. The first inquiry before this court investigates the deeded fee rights in the Disputed Area. After the parties respective deeded rights are determined, if necessary, this court will determine whether Plaintiffs have gained title by adverse possession over the Disputed Area or some portion thereof, or in the alternative, prescriptive rights. [Note 21] I shall address each issue in turn.
1. Deeded Rights.
A. Deeded Fee Interest in the Disputed Area.
Pursuant to G. L. c. 183, § 58, the so-called Derelict Fee Statute (Section 58) sets out an authoritative rule of construction for instruments passing title to real estate abutting a way. [Note 22] Emery v. Crowley, 371 Mass. 489 , 492 (1976); Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 802 (2003). Through Section 58, the legislature codified common law and mandate[d] that every deed of real estate abutting a way includes the fee interest of the grantor in the wayto the center line if the grantor retains property on the other side of the way or for the full width if he does notunless the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992). [Note 23] Moreover, the derelict fee statute pertains only to the question of ownership of the fee. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005). [Note 24]
Plaintiffs argue that Section 58 does not apply to the Disputed Area, as the Disputed Area is not a way for the purposes of Section 58. As evidence for this position, Plaintiffs point to Mayhews failure to reserve rights in the Norton ROW in the Norton Deed and the fact that Plaintiffs chain of title does not refer to the Disputed Area as a way. Plaintiffs conclude that these facts show an intent to abandon any way to South Water Street once contemplated by Mayhew. Defendants argue that, because Defendant Property is bounded by a way as shown in Defendant Propertys chain of title, Section 58 applies and both parties possess a fee interest to the center line of the Disputed Area. [Note 25]
A review of the parties respective chains of title sheds light on this dispute. The record is clear that Defendant Propertys chain of title (including the Boardman Deed and the Brier Deed) includes references to a way along its eastern boundary. [Note 26] Conversely, Plaintiff Propertys chain of title does not refer to a way as its western boundary, but, rather, land formerly of [Mayhew]. This ambiguity, in itself, is insufficient for this court to determine that Section 58 does not apply to the Disputed Area, as Section 58 applies unless the parties chains of title evidences a different intent by an express exception or reservation. Section 58 applies to a way whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated . . .). Tattan, 32 Mass. App. Ct. at 242-43 (1992) (internal quotations omitted). Nothing in the language of Section 58 suggests that its effect is limited only to instruments that describe the real estate conveyed as bounded by a way or other similar linear monument. Rowley, 438 Mass. at 802. Moreover, if courts
were to construe [Section] 58 not to apply to instruments conveying real estate parcels abutting ways or similar linear monuments that failed to describe their boundaries as such, the ownership of the small strips that make up such ways and linear monuments would once again be derelict. . . . Such a result would defeat the very object of the statute and leave in place the imperfection it intended to remedy.
Id. at 804. Despite the absence of an express reference to a way in Plaintiffs chain of title, the trial record adequately designates the Disputed Area as a way contemplated by Mayhew since at least 1914 and in existence since at least 1916.
In light of the above, I find that Section 58 applies to the Disputed Area and, thus, confers upon the holders of both Plaintiff Property and Defendant Property a fee interest to the center line of the Disputed Area, subject to the findings of this court on the issues of adverse possession.
B. Deeded Easement Rights in the Disputed Area.
Plaintiffs take the position that Defendants have no easement rights in the portion of the Disputed Area owned by Plaintiffs. Plaintiffs reason that because Defendants have no rights over the Norton ROW, it is impossible for them to get to South Water Street from the Disputed Area, and, thus, any easement rights granted to them in the Disputed Area are extinguished. Defendants argue that Plaintiffs impossibility argument requires an adjudication of rights in the Norton ROW and than such a determination is inappropriate as the holders of the Norton ROW are not parties in the case at bar. This court agrees that the rights in the Norton ROW are not ripe for review in the instant matter. As such, whether Defendants hold an express easement across the Norton ROW (from the Disputed Area) to South Water Street are questions that this court cannot conclusively answer at this time. [Note 27]
At the same time that Defendants contend their rights in the Norton ROW are not before this court, they argue that Defendant Property benefits from an easement by estoppel as a result of their chain of title, which describes Defendant Property as bound by a way (the Disputed Area). Decisional law reveals two different theories under which a parcel of land may be conferred rights in a way under the doctrine of easement by estoppel. The first, which is not directly at play in the case at bar, is based on a recorded plan. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (stating that where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.). The trial record indicates that the 1950 Plan was the first plan to show the Disputed Area. The second theory, which appears relevant in the instant matter, states that when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Casella v. Sneierson, 325 Mass. 85 , 89 (1949) (emphasis added). An easement by estoppel would arguably grant rights in the northerly extension of the Disputed Area to South Water Street; however, as discussed, supra, that would involve the owners of the Norton ROW, who are not parties to this action. Moreover, it appears as though Defendants cannot obtain an easement by estoppel over the Norton ROW as Mayhew had no rights in the Norton ROW at the time of the Boardman Deed. [Note 28] An easement by estoppel in the Disputed Area would also arguably grant rights in the southerly extension of the Disputed Area, which, again, touches upon the rights of several lot owners who are not parties to this case. [Note 29] As such, in the same manner that this court cannot determine the rights of nonparties relative to the Norton ROW, this court cannot determine whether Defendants have an easement by estoppel over the southerly extension of the Disputed Area at this time.
2. Plaintiffs Claims of Adverse Possession and Easement by Prescription.
As this analysis stands, both parties hold fee interest to the center line of the Disputed Area. Plaintiffs adverse possession claim will determine the final scope of the parties respective interests in the Disputed Area. [Note 30] Plaintiffs allege that they have wiped out Defendants rights in Defendants half of the Disputed Area as Plaintiffs (and their predecessors in title) have used all of the Disputed Area openly, notoriously, adversely, and exclusively for more than twenty years and are therefore entitled to the exclusive fee interest in all of the Disputed Area by adverse possession. Defendants allege that Plaintiffs adverse possession claim fails because Plaintiffs and their predecessor have not used Defendants half of the Disputed Area in a manner consistent with adverse possession.
To establish title by adverse possession of a fee unencumbered by an easement, Plaintiffs carry the burden to prove nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). If any of the elements remain unproven, the party claiming adverse possession cannot prevail. Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). [Note 31] In analyzing Plaintiffs claim for adverse possession, I will focus on the three distinct areas of Defendants half of the Disputed Area: the Driveway, the western Grass Strip, and the Hedge. I shall address each of these issues in turn.
A. The Hedge.
As this court previously found that Defendants own title to the Disputed Area to its center line, Defendants hold title to the Hedge pursuant to Section 58. The record does not show who planted the vegetation that comprises the Hedge; it does, however, indicate that the Hedge was heavily wooded and consisted of mostly wild brambles until 2005, when Defendants caused a path to be cut in the Hedge. As the record does not reflect that Plaintiffs used the Hedge adversely for any period of time, and certainly not for at least twenty consecutive years, I find that Plaintiffs claim for adverse possession over the Hedge fails.
B. The Driveway.
Plaintiffs evidence shows that BTR, and its predecessors in title, have used the Driveway since the West family moved to Plaintiff Property in 1929 to the present. [Note 32]
In 1929, the Driveway was the only means of access to Plaintiff Property from South Water Street. Summers lived at Plaintiff Property until 1943. Between 1943 and 1984, Summers often visited her parents at Plaintiff Property and there was no change in the Driveways location. She moved back onto Plaintiff Property in 1984 or 1985 and continued to use the Driveway to access South Water Street until she conveyed the property to BTR in 2005. After moving back to Plaintiff Property in 1984 or 1985, Summers graded the Driveway and laid peastone on it. The Driveway is presently used by Plaintiffs for pedestrian and vehicle access to and from South Water Street. Evidence from trial established that the Driveway has been exclusively maintained by Plaintiffs and their predecessors in title and consistently used to access Plaintiff Property since 1929. As such I find that Plaintiffs have satisfied their burden to show actual use of the Driveway for more than twenty years.
Exclusive use is established where it encompass[es] a disseisin of the record owner. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To establish exclusive use, the claimant must show that he used the disputed area to the exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them. Id. Acts of enclosure or cultivation are evidence of exclusive possession. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). Here, the record indicates that the Driveway was exclusively used as access to and from Plaintiff Property from at least 1943 to 1993. [Note 33] As such, I find that Plaintiffs have satisfied their burden to show exclusive use of the Driveway.
The open and notorious requirement is intended only to secure to the owner [of the affected land] a fair chance of protecting his or her property interests. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). For a use to be found open, it must be without attempted concealment. Boothroyd, 68 Mass. App. Ct. at 44. The notorious requirement is met where the use is 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. Id. Plaintiffs predecessors use of the Driveway for access to their home for more than fifty years was made with no concealment and was sufficiently pronounced to place Defendants, or their predecessors, on notice of such use. As such, I find that Plaintiffs have satisfied their burden to show open and notorious use of the Driveway.
Adverse use must also be proven in order to establish title by adverse possession. The adverse possessors acts should demonstrate control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership. LaChance v. First Natl Bank & Trust Co., 301 Mass. 488 , 491 (1938). [T]he nature and extent of occupancy required to establish a right by adverse possession vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put. Id. This determination is based upon a finding that the claimant made changes on the disputed land that constitute such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership. Peck, 34 Mass. App. Ct at 556 (quoting LaChance, 301 Mass. at 491). In Peck, the Appeals Court indicated that parties claiming title by adverse possession may establish their claim by proving that they made permanent changes or significant improvements to the land. Id. Acts of possession which are few, intermittent and equivocal are insufficient to constitute adverse possession. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). In many appellate cases, the erection of permanent structures or the completion of significant improvements were central to a finding of adverse possession. See, e.g., Collins v. Cabral, 348 Mass. 797 , 798 (1965) (finding adverse possession where party performed lawn maintenance and installed septic tank); Jones v. Gingras, 3 Mass. App. Ct. 393 , 398 (1975) (finding adverse possession where party mowed grass, planted a vegetable garden, and dug ditches for flood maintenance); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979) (holding adverse possession requirements were met where henhouse was erected). Moreover, courts have often found adverse possession in instances where a driveway was created on disputed property. See, e.g., Flynn v. Korsack, 343 Mass. 15 , 18 (1961); Boutin v. Perreault, 343 Mass. 329 , 331 (1961); Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930 , 930 (1991). As Plaintiffs predecessors use of the Driveway was a permanent change to the Disputed Area that showed control and dominion over such area, I find that Plaintiffs have established their burden to show adverse use of the Driveway.
In light of the above, I find that Plaintiffs use of the Driveway (as the Driveway existed prior to its 2006 expansion and only with respect to those portions of the Driveway to which Defendants held title) was open, notorious, adverse, and exclusive for more than twenty years before Defendants began using the Disputed Area in 1993. [Note 34] The parties shall report to this court (Jennifer Masello, Sessions Clerk) in writing, within thirty days from the date of this decision, as to whether Defendants will require the removal of the portion of the Driveway constructed by Plaintiffs in 2006.
C. The Western Grass Strip.
The trial record reflects that the Grass Strips have been in existence for well over twenty years. Additionally, Summers planted various vegetation within the western Grass Strip beginning in the late 1980s and an irrigation system was installed in both Grass Strips in 1994. However, as neither the irrigation system nor the various plantings have existed in the western Grass Strip for more than twenty years, this court is limited to reviewing the mere presence and maintenance of cultivated grass as evidence in support of Plaintiffs claim of adverse possession. Such proof, by itself, is insufficient to satisfy Plaintiffs burden of showing use that is adverse to Defendants rights in the western Grass Strip. [Note 35] In light of the above, I find that Plaintiffs claim of adverse possession over the western Grass Strip fails.
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: January 29, 2010
[Note 1] Ross is the principal of BTR and resides at 9 Oyster Pond Road, Edgartown, Massachusetts.
[Note 2] Plaintiffs filed an Amended Verified Complaint on January 12, 2007, clarifying the boundaries of the Disputed Area, together with the Affidavit of Priscilla B. Summers (Summers).
[Note 3] The three counts relating to damages were dismissed prior to trial as specified in the Parties Pre-Trial Memorandum.
[Note 4] This court shall not address these Counterclaim issues as they were not addressed at the pre-trial conference or in the parties post-trial briefs.
[Note 5] A Revised Order was issued on February 7, 2008.
[Note 6] A southerly extension of the Disputed Area is shown as Road 25'on a plan titled Land in Edgartown Property of Marion H. Niles, recorded in the Dukes County Registry of Deeds (the Registry), Book 141, Page 186 (the 1916 Plan). The Disputed Area is located north of the land depicted in the 1916 Plan.
The 1916 Plan is attached to a deed from Allen Mayhew to Marion H. Niles (Niles) dated May 8, 1916, and recorded with the Registry at Book 141, Page 186 (the Niles Deed). The southerly extension of the Disputed Area is referenced in the Niles Deed as a roadway leading from South Water Street.
[Note 7] The Boardman Deed states, in part:
Beginning at the northeasterly corner of the lot of land hereby conveyed and at land of Matilda M. Norton and a way to be laid out, which is to be twenty-five feet wide; thence Southwesterly by said way to be laid out eighty-nine feet to a stone bound; thence Westerly two hundred and seven feet to a roadway; thence Northerly seventy-eight feet to a stone bound by said roadway; thence Easterly on a line with the southerly side of land of Cornelia D. Milner and Matilda M. Norton two hundred fifty-three feet to a stone bound at the point of beginning. Also, right of way for all purposes to and from the granted premises to South Water Street in and over the two ways above mentioned.
[Note 8] Through a deed dated October 28, 1915, and recorded in the Registry at Book 140, Page 367, Mayhew conveyed to Brier land located to the south of Defendant Property bounded, in part, as easterly by land of Carolyn P. Boardman 161 8/10 feet to another way twenty-five feet under which extends Northeasterly to said South Water Street; . . .
[Note 9] The trial record fails to establish Defendants chain of title from the conveyance to Sophia B. Terra in 1929 to Evelyn VonKamecke acquiring title in 1978. Plaintiffs, however, did not raise an issue concerning Defendants chain of title.
[Note 10] The conveyance of the use of the Norton ROW to Elmer West did not reference any way along the west side of the Elmer Lot in the location of the Disputed Area.
[Note 11] Attorney James Reynolds testified that Bonnar acquired title from Atwood in 1928. Although both parties agree to this fact, no deed was presented at trial.
[Note 12] The deed from Bonnar to Percy West was the first occasion on which Plaintiff Property was separately conveyed.
[Note 13] By deed dated April 10, 1992, and recorded with the Registry at Book 578, Page 295, Robert West deeded his interest in Plaintiff Property and the Norton ROW to Priscilla B. Summers.
[Note 14] Plaintiff Deed does not describe Plaintiff Property other than referring to Lot 1 on the 1926 Plan (which itself does not show or refer to land west of Plaintiff Property) and states BTRs rights over the Norton ROW as: [b]eginning at South Water Street; thence southeasterly 126 feet more or less along the southwesterly sideline of land formerly of Charles W. Earl to said Lot #1, said right of way being 25 feet wide.
[Note 15] There is no record of who planted the vegetation within the Hedge. The Hedge is located partially within the Disputed Area and partially on Defendant Property. Testimony reveals that the Hedge was approximately six-feet tall in the late 1990s and fifteen-feet wide in 2003 to 2004.
[Note 16] The Driveway, Garage, and Bumpout (as they existed prior to 2006) are shown on Sketch Plan of Land in Edgartown, Mass. Drawn for Benson Ross dated July 6, 2005 (the 2005 Plan). See infra p. 10 discussing the 2006 widening of the Driveway.
The trial record is unclear when the Bumpout was first constructed but aerial photographs admitted into evidence clearly show the Bumpout existing in 1969, 1985, and 1996, and Summers testified that she recalls the Bumpout from her childhood.
[Note 17] Summers testified that during such time, she usually rented a house in Edgartown over the summers and would bring her children to Plaintiff Property during school vacations.
[Note 18] Summers testified that Plaintiff Propertys lawn area looked pretty much the same when she moved there in 1984 or 1985 as compared to when she was a child.
[Note 19] Summers testified that she planted forsythia, jonquils, spring bulbs, rosa rugosa, and day lilies in the western Grass Strip. She planted some of this vegetation, including the day lilies, in the late 80s. Summers planted other vegetation in the western Grass Strip, including a rhododendron and a pine tree, around 1992 to 1997. Summers planted a holly tree in the western Grass Stip around 2002.
[Note 20] Lilah Raptopoulos, Defendants eighteen year old daughter, testified that she has walked to Edgartown over the Disputed Area for as long as she can remember (since she was six or seven years old) but that she does not walk on the Driveway, rather, she walks next to it (presumably in the western Grass Strip). Lorrie Levine, Defendants invitee, also testified that she walked down the Disputed Area to get to Edgartown but her testimony was unclear whether she walked over the Driveway or the Grass Strips.
[Note 21] Defendants do not claim any prescriptive rights or adverse possession in the Disputed Area. Defendants purchased Defendant Property in 1993 and do not rely on any use by their predecessors in title.
[Note 22] G. L. c.183 § 58 states, in relevant part:
[e]very instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . , unless (a) the grantor retains other real estate abutting such way . . . , in which case, . . . (ii) if the retained real estate is on the other side of such way . . . , the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a sideline.
[Note 23] The policy behind Section 58 is to meet a situation where a grantor has conveyed away all of his land abutting a way . . . , but has unknowingly failed to convey any interest he may have in land under the way . . . , thus apparently retaining his ownership of a strip of the way . . . . Hanson v. Cadwell Crossing LLC, 66 Mass. App. Ct. 497 , 501 n.7 (2006) (quoting Rowley, 438 Mass. at 803).
[Note 24] I am aware of the general rule stated in Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 968 (1987) (rescript opinion), stating that
the title of persons who acquire land bounded by a street or way runs to the center line of the way, G. L. c 183, § 58, and carries with it the right to use the way along its entire length. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Casella v. Sneierson, 325 Mass. 85 , 89 (1949). Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965).
I read Brennans rule as two separate assertions based on two distinct doctrines. The first is grounded in Section 58, and relates only to the title of a street or way to its centerline. The second assertion involves rights appurtenant to land bounded by a way or street and is grounded in the doctrine of easement by estoppel. It is noteworthy that Goldstein, Casella, and Mart Realty, as cited above in Brennan, all involve easements by estoppel and not easements by derelict fee. In sum, I do not read Brennan as stating that Section 58 automatically confers easement rights. Rather, I agree with Adams, which states that Section 58 applies to fee ownership only.
Adams involved an appeal of a subdivision approval in which the Appeals Court looked to the parties chains of title in conjunction with Section 58 to determine that a developer owned the fee in portions of an access roadway. 64 Mass. App. Ct. at 389. In determining whether the developer also held easement rights in such way, the Appeals Court noted that while extrinsic evidence may not be used to prove the grantors intent to retain [a] fee in [a] right of way, . . . extrinsic evidence is available to determine the existence, nature, scope, and extent of easement rights in a way; the derelict fee statute applies only to the question of ownership of the fee. Id. (internal quotation and citation omitted). The Appeals Court went on to find that the developer held an easement by necessity or implication over the disputed way. Id. at 391.
[Note 25] Defendants further argue that, because Plaintiffs are bound by their pleadings under oath, paragraph 7 of Plaintiffs Amended Complaint is a judicial admission stating that the Disputed Area was supposed to be part of a roadway that would allow owners of property along side it to access South Water Street. However, this statement by Plaintiffs is not inconsistent with Plaintiffs argument that Mayhew and his heirs abandoned their initial intent to create a way in the Disputed Area.
[Note 26] The Disputed Area (extended to the south) is also referenced in the Niles Deed and shown on the 1916 Plan.
[Note 27] That said, this court observes (but does not find) that based on the deeds in the trial record, while Plaintiffs likely have rights in the Norton ROW, based on the deed from Norton, it appears as though Mayhew failed to retain any interest in the Norton ROW as a result of the Norton Deed. If so, it would be difficult for him to establish an express easement for Defendants as Mayhew cannot grant rights over property in which he has no interest.
With respect to any argument for an easement by implication over the Norton ROW for access to South Water Street, an implied easement arises when land was formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the enjoyment of the other part.
Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 656_57 (2005) (quoting Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985)). Stated differently, [w]here during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication. Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004) (citing Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953)).
In the case at bar, Mayhewthe common grantorspecifically deeded the right to go to and from South Water Street to the holders of Defendant Property, which appears relevant to grantor intent. However, there is no evidence as to any apparent and obvious actual use of the Disputed Area or the Norton ROW at the time of the severance of ownership. Moreover, as Defendants have access to South Water Street via Cummings Way, there is no argument that access over the Norton ROW is necessary for access from Defendant Property to South Water Street. As a result, it appears unlikely that Defendants would be able to establish an easement by implication.
[Note 28] Estoppel only applies if the party being estopped was both the grantor (or his successor) and had rights in or to the road in question. Zatta v. Argiro, 16 LCR 657 , 662 (2008) (Misc. Case No. 329981) (Long, J.) (citing Casella, 325 Mass. at 89; Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481 (1989)).
[Note 29] Particularly, owners of Lots 44 to 46 and Lots 48 to 50, as shown on the Assessors Map.
[Note 30] As one cannot claim adverse possession over land they own, Plaintiffs adverse possession claim is limited to the portions of the Driveway on Defendants half of the Disputed Area, the western Grass Strip, and the Hedge. As discussed, supra, Defendants do not claim adverse possession or easement by prescription over Plaintiff Property.
[Note 31] Adverse possession may also be used by a servient estate holder to extinguish an easement in a way. Emery v. Crowley, 371 Mass. 489 , 495 (1976) (citing Delconte v. Salloum, 336 Mass. 184 , 188 (1957)). In this context, a successful adverse possession claim requires evidence of use that is
utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement. . . . In substance and effect, the acts of the servient owner have [to] render the use of the easement practically impossible for the period required for prescription and it has become extinguished.
New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931). This more stringent burden is not applicable in the case at bar as this court, as discussed, supra, is unable to determine in this action whether Defendants hold an easement over the Disputed Area.
[Note 32] Moreover, the Driveway is clearly shown in various aerial photographs in the record that show the Driveway as of 1969, 1985, 1996, and 2007.
[Note 33] While Summers testified that she occasionally witnessed Brier walk over the Driveway with shopping bags in hand, such use by Brier was prior to 1943. The trial record indicates that Defendants use of the Driveway began in 1993 when Dr. Muller showed Dr. Raptopoulos Defendant Property.
[Note 34] In the event that Defendants were able to establish an easement by estoppel or implication over the Disputed Area, which is unlikely as discussed, supra, the issue would remain whether Plaintiffs adverse possession would extinguish such easement rights. See supra note 31.
[Note 35] See Cyr v. Simmons, 13 LCR 456 , 461(2005) (Misc. Case Nos. 287680 and 291903) (Lombardi, J) (holding periodic grass mowing, raking and branch removal insufficient for adverse possession). Lawn maintenance is generally insufficient for establishing title by adverse possession because such activities fail to work changes to the land or result in the placement of structures on the land. Id. See also Sipas v. Szafarowicz, 2006 WL 4119648 (Mass. Super., 2006) (finding that planting shrubs and mowing the lawn did not rise to the necessary level of dominion and control to constitute adverse possession).