MISC 06-325867

March 17, 2011


Grossman, J.


Plaintiffs Bernice Johnson, W. Kenneth Johnson, and Robert A. Johnson, initiated the instant suit on July 7, 2006, by means of a three-count complaint. They sought relief with respect to land which is adjacent to their property, and which is owned by their cousin, defendant Joseph M. Santos, and his wife, defendant Marcia Santos (Santos defendants). Count I seeks judicial review pursuant to G. L. c. 41, § 81BB of a decision of the Falmouth Planning Board (Board) approving a subdivision plan submitted by the defendant Development Trust, LLC (developer). The subdivision plan concerned land owned by the Santos defendants (Santos parcel). Count I also seeks a declaration pursuant to G. L. c. 231A, § 1 to the effect that the interpretation of the Falmouth Zoning Bylaw (Bylaw) rendered by the Board was legally erroneous. Predicated upon this alleged erroneous interpretation, plaintiffs seek to annul the Board’s decision. The developer submitted the plan and application in conjunction with a purchase and sale agreement it had entered into with the Santos defendants. As envisioned by Development Trust LLC, and as approved by the Board, upon assuming title the developer would subdivide the Santos parcel into four buildable lots.

Count II, in contrast, seeks to establish plaintiffs’ ownership of a portion of the Santos parcel through adverse possession. Count III seeks a declaration that the plaintiffs possess certain prescriptive rights in the Santos parcel.

Included in the answer filed by the Santos defendants were counterclaims asserting the intentional interference with a contractual relationship.

Thereafter, the parties filed cross dispositive motions. [Note 1] On May 18, 2007, the court (Lombardi, J.) heard said motions, allowed plaintiffs’ motion to dismiss the private defendants’ counterclaims from the bench, and took the remaining motions under advisement.

By order dated May 29, 2007, [Note 2] the court (Lombardi, J.) resolved Count I in favor of the defendants, ruling that the Board’s interpretation of the relevant provisions of the Bylaw was correct as a matter of law. He determined therefore that the decision of the Board finding sufficient frontage for each buildable lot, should be affirmed. See Johnson v. Falmouth Planning Bd., 15 LCR 245 , 247 (2007) (Misc. Case No. 325867) (Lombardi, J.). The plaintiffs filed a motion to reconsider which was denied by the court (Lombardi, J.).

Following transfer of the instant matter to this court, plaintiffs’ motion to amend their complaint was allowed on April 16, 2009. As amended, the complaint added June Pina as party plaintiff, [Note 3] and a claim for an implied easement.

Thereafter, on April 26, 2010, this court held a one-day trial on the remaining issues which the parties stipulated as being viable, i.e., the existence of implied and prescriptive easements. [Note 4] At trial, a court reporter was sworn to take the testimony of June Pina and Joseph M. Santos. This court admitted 32 exhibits into the trial record, including Exhibit 31, the parties’ stipulations, of which there were 43. Those exhibits are incorporated by reference into this decision for purposes of appeal. At the close of plaintiffs’ case, the defendants moved for a directed finding, which this court denied. The parties submitted their requested findings of fact and ruling of law on July 2, 2010.


On all testimony, exhibits, stipulations and other evidence properly introduced at trial or otherwise before it, and the inferences reasonably drawn therefrom, this court finds as follows: [Note 5]

1. The plaintiffs, Bernice Johnson, W. Kenneth Johnson, and Robert A. Johnson are owners as joint tenants of land (Johnson parcel), improved by a single-family residence, and denominated 195 Central Ave., Falmouth. See Exhibit (Exh.) 31, Stipulations, ¶ 1.

2. The Johnson parcel consists of 77,651 square feet as depicted on a plan (plaintiffs' plan) of land recorded with the Barnstable County Registry of Deeds (Registry) at Plan Book 245, Page 80. The said plan is entitled "Plan of Land of Benjamin F. & Almeda Johnson in E. Falmouth, Mass. dated May 4, 1970 and prepared by Philip G. Holmes - Civil Engineer - Land Surveyor." Stipulations, ¶ 2; Exh. 17.

3. Plaintiff June Pina is the owner of a parcel of land (Pina parcel), which is also improved by a single-family residence, and denominated 201 Central Ave., Falmouth. Stipulations, ¶ 3; Tr. 14.

4. The Pina parcel consists of 10, 241 square feet as depicted on plaintiffs' plan, and is effectively surrounded by the Johnson parcel. Stipulations, ¶ 4; Exh. 17.

5. The plaintiffs are children of the late Almeda Johnson [Note 6] and her late husband Benjamin Franklin Johnson.

6. Defendants Joseph M. Santos and Marcia Santos (Santos defendants) are the owners of a 5.99 acre parcel of land (Santos parcel), immediately adjacent and to the north of the Johnson parcel, improved by a single-family residence, and denominated 187 Central Ave., Falmouth. Stipulations, ¶ 6. The Santos parcel is depicted on a plan (Santos plan) recorded with the Registry at Plan Book 419, Page 69. See Exh. 16.

7. The Santos plan depicts a rectangular lot, as land belonging to "Almeda Johnson," which consists of both the Johnson and Pina parcels. Stipulations, ¶ 7; Exh. 16.

8. Albert Santos, the father of Joseph M. Santos, and Almeda Johnson were brother and sister. Accordingly, the defendant Joseph M. Santos and the plaintiffs are first cousins. Stipulations, ¶ 8.

9. The Santos defendants have entered into a purchase and sale agreement with Development Trust, LLC for the sale of the Santos parcel. Stipulations, ¶ 9.

10. On January 1, 1923, Joseph Santos, the deceased grandfather of the plaintiffs and of the defendant Joseph M. Santos, took title to an eight-acre parcel of land in Falmouth, which includes all of the land at issue in this suit. Stipulations, ¶18. [Note 7]

11. Having taken title to the said property, Joseph Santos improved same by erecting a single family dwelling thereon, see Tr. 33, as well as a barn and pigpen, see Tr. 20. He also conducted agricultural activities thereon. See Tr. 29, 69, 72.

12. Joseph Santos died in Falmouth on March 16, 1940, at which time he held title to all the land at issue in this suit. Stipulations, ¶ 19.

13. Plaintiff June Pina was born to Almeda Johnson and Benjamin Franklin Johnson on June 15, 1945. See Tr. 13.

14. On August 24, 1946, the heirs of Joseph Santos, including his daughter Almeda Johnson, the plaintiffs’ mother, see, supra, Findings, ¶5, conveyed their interests in said land to their brother, Albert Santos. Stipulations, ¶ 20. [Note 8]

15. On August 2, 1947, Albert Santos conveyed back to Almeda Johnson and her husband a two-acre parcel taken from that larger tract. Stipulations, ¶ 21. [Note 9] This division of the land previously held by Joseph Santos is depicted on a plan entitled “Plan of Land of Estate of Joseph Santos – East Falmouth, Mass – March 1947,” recorded with the Registry at Plan Book 79, Page 43. See Exh. 15.

16. Shortly thereafter, Almeda Johnson and her husband Benjamin Franklin Johnson constructed a single family dwelling upon their property, see Exh. 24. Plaintiff June Pina resided therein and was raised there from the age of fourteen months until her marriage at the age of seventeen, i.e. from approximately 1947 until 1962. See Tr. 15, 16.

17. On March 31,1955, Albert Santos, using a straw man, Noah M. Gediman, conveyed the remaining land, the Santos parcel, to himself and his wife, Alice C. Santos, as tenants by the entirety. Stipulations, ¶ 22. [Note 10]

18. From approximately 1962 until 1970, June Pina resided with her husband, Domingo Pina, at 778 Teaticket Highway, Falmouth, which is two to three miles away from the properties at issue in this matter. See Tr. 15, 18.

19. On August 3, 1970, Almeda Johnson and her husband Benjamin Franklin Johnson, granted plaintiff June Pina and her husband Domingo Pina, the Pina parcel, described, supra, Findings, ¶¶ 3 & 4, as tenants by the entirety. Stipulations, ¶ 23. [Note 11] It took the Pinas approximately one year to complete the construction of their dwelling, Tr. 14, during which time the Pina Family lived with Almeda Johnson in her residence next door at 195 Central Avenue. Tr. 15. Since the construction of her dwelling at 201 Central Avenue until the present, June Pina has lived in that residence. See ibid. Based upon this finding, as well as Findings, ¶¶ 16 & 18, June Pina lived either at her mother’s residence or her own residence for all but approximately nine years. Even during this gap in her occupation, however, June Pina visited her mother’s residence on a daily basis.

20. On June 9, 1973, Albert Santos and Alice Santos conveyed the Santos parcel to Marilyn Everett, by deed recorded with the Registry at Book 1180, Page 9. Stipulations ¶ 25; Exh. 11.

21. On July 25, 1975, Benjamin Franklin Johnson conveyed all of his right, title and interest in the Johnson parcel to Almeda Johnson. Stipulations, ¶ 26. [Note 12]

22. On December 23, 1981, Almeda Johnson conveyed the Johnson parcel to herself and her son Charles L. Johnson as joint tenants, by deed recorded with the Registry at Book 3413, Page 60. Stipulations, ¶ 27; Exh. 6.

23. On November 16, 1982, Marilyn Viega, formerly known as Marilyn Everett, conveyed the Santos parcel to Alice C. Santos, by deed recorded with the Registry at Book 3835, Page 224. Stipulations, ¶ 28; Exh. 12.

24. By deed dated June 4, 1985, as well as a confirmatory deed [Note 13] dated June 26, 1985, Alice C. Santos conveyed the Santos parcel to herself and Joseph M. Santos. Stipulations, ¶ 29. [Note 14]

25. On January 27, 1986, Alice C. Santos and Joseph M. Santos conveyed the Santos parcel to Joseph M. Santos and his wife Marcia C. Santos, i.e., the Santos defendants. Stipulations, ¶ 30. [Note 15]

26. On July 3, 1989, June Pina and Domingo L. Pina conveyed the Pina parcel to June Pina, individually. Stipulations, ¶ 33. [Note 16]

27. Almeda Johnson died on March 5, 2002. Stipulations, ¶ 34.

28. Thereafter, on June 16, 2003, Charles Johnson conveyed the Johnson parcel to Charles L. Johnson, W. Kenneth Johnson, Robert A. Johnson, and Bernice Johnson, as joint tenants. Stipulations, ¶ 35. [Note 17]

29. Charles L. Johnson died on April 12, 2004, extinguishing his interest in the Johnson parcel, thereby vesting a full one-third interest in the Johnson parcel in each of the remaining joint tenants, plaintiffs W. Kenneth Johnson, Robert A. Johnson, and Bernice Johnson. Stipulations, ¶ 36.

30. None of the aforementioned title documents include an express grant of an easement benefiting the Johnson parcel or Pina parcel, and burdening the Santos parcel. See Exhs. 2-14.

31. Despite the absence of an express easement, it is not disputed that the plaintiffs, their predecessor in title, and their invitees have used portions of the Santos parcel to access Bournes Pond [Note 18] for no less than twenty years beginning at some point after 1947 through the time of trial. [Note 19]

32. It is also undisputed that plaintiffs, their predecessor in title, and their invitees have neither requested nor received permission from defendant Joseph M. Santos for such use. See Findings, ¶ 31. [Note 20]

33. While permission was neither sought nor granted for such use, permission was sought from and granted by the defendant for different uses by plaintiffs’ invitees. [Note 21]


As noted, plaintiffs advance theories in the alternative, which they claim warrant relief: easement by implication and easement by prescriptive use. This court will consider each claim in turn.

It is well established in this Commonwealth that the grant of an easement may be implied in a deed to land. See Reagan v. Brissey, 446 Mass. 452 (2006); Labounty v. Vickers, 352 Mass. 337 (1967); Jasper v. Worcester Spinning & Finishing Co, 318 Mass. 752 (1945); Houghton v. Johnson, 71 Mass. App. Ct. 825 (2008). In these cases, “[s]uch circumstances may exist at the time there is a grant of land that the instrument of grant describing the premises but making no reference at all to an easement nevertheless creates one.” Mt. Holyoke Rlty. Corp. v. Holyoke Rlty. Corp., 284 Mass. 100 , 103-104 (1933). “The origin of an implied easement ‘whether by grant or by reservation . . . must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.’” Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940).

“There are cases where a single circumstance may be so compelling as to require the finding of an intent to create an easement,” Mt. Holyoke, 284 Mass. at 104, as when the land granted would be land-locked without such an easement. See Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 76-79 (2004) (referring to such implied easements as easements by necessity). In others, such as the cases in which easements are implied by means of a common scheme, compare Reagan, 446 Mass. at 453-458, 458-461; with Johnson v. Houghton, 71 Mass. App. Ct. at 832-835, many factors may be necessary to find such an intent. In yet others, “[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 the 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.” Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953). See Bedford v. Cerasuolo, supra (describing the distinction between implied easements by necessity and implied easements by prior use); Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985).

In any event, the common thread amongst all the cases, and the sine qua non of this court’s inquiry here, is the objectively evaluated presumed intent of the parties to the original conveyance. See Flax, 20 Mass. App. Ct. at 153 (holding “[w]hat is required . . . is not an actual subjective intent on the part of the grantor but a presumed objective intent of the grantor and grantee based upon the circumstances of the conveyance”). Consistent with general principles, “[t]he burden of proving the existence of an implied easement [by demonstrating such an intent] is on the party asserting it.” Reagan, 446 Mass. at 458.

Here, while some of the facts attending the 1947 grant to Almeda Johnson [Note 22] may render plaintiffs’ claims of implied easement plausible, mere plausibility is not the standard of proof that the plaintiffs must attain. The plaintiffs were charged with demonstrating that it is more likely than not that, despite the absence of an express grant, it was the parties’ intention to grant as appurtenant to Almeda Johnson’s property, a right of passage over Albert Santos’ remaining land. The plaintiffs have failed to meet their burden on this score.

The plaintiffs point to several, uncontested facts surrounding the 1947 conveyance that, they argue, suggest an intent to include an easement within the grant. First off, they assert that, as the 1946 conveyance to Albert Santos makes clear, see Findings, ¶ 14, Almeda Johnson as an heir at law of Joseph Santos was an owner in common with her siblings of the property once held by their father. When Almeda was such a co-owner, she held the right to use or occupy any portion of the entire eight-acre parcel, including that which fronts on Bournes Pond. Following on the heels of the 1946 conveyance to their brother Albert Santos, the 1947 conveyance of the two-acre parcel back to Almeda Johnson, raises an inference, according to the plaintiffs, that the 1947 conveyance was the product of an informal, prior understanding between Almeda Johnson and Albert Santos that he would settle her common interest in the whole tract, by granting her a fee in two acres of the same, an area that could be said to roughly correspond to her prior interest in the whole. See, supra, Findings, ¶ 15. As a consequence, plaintiffs argue, the 1947 grant must have included an implied easement to use the remaining land of Albert Santos. This is so, according to the plaintiffs, because Almeda Johnson once had the right to use and occupy any portion of the original eight-acre parcel. Under this theory, when she agreed to substitute for her common interest in the whole, a fee in one fourth of its area, she would have agreed to such an arrangement only if she retained the right to use the balance. Even were this court to assume that this theory presents a plausible view of the operative events, it could be said that there are other, no less plausible theories. For example, given the facts at hand, one could argue that the parties intended to address access to Bournes Pond off record, by dint of a revocable license. However, there is no evidence that such a license was granted, or even contemplated. [Note 23]

Yet another theory, no less compelling than the others, is that the parties, brother and sister, simply did not consider the issue of access to Bournes Pond at all. This theory gains support from the fact that Almeda Johnson appears to have acquired her property in 1947 in order to establish a family homestead, see Findings, ¶16. Moreover, there is a lack of evidence on the trial record to suggest that access to Bournes Pond was an overriding factor at the time of the 1947 acquisition.

Based upon the available evidence, this court is left to choose among several plausible, competing scenarios. There may be others, as well.

The plaintiffs point to the testimony of June Pina to the effect that her mother, she and her siblings, as well as her grandchildren all used the Santos parcel in the years since the 1947 conveyance. There is, however, little credible evidence of such use in the years immediately following that conveyance. Moreover, while the cases teach that the parties’ conduct in the immediate aftermath of the conveyance can be probative of their intent, see Reagan, 446 Mass. at 461; Labounty, 352 Mass. at 345, the existing record offers insufficient guidance on that score. There is simply insufficient evidence concerning Almeda Johnson’s use of the Santos parcel in the years directly following the conveyance. [Note 24], [Note 25]

In conclusion, there are a number of plausible narratives concerning the parties’ intentions at the time Albert Santos granted Almeda Johnson a two-acre parcel in 1947; however, no one theory predominates or otherwise finds adequate support in the trial record. [Note 26] The plaintiffs have, therefore, failed to meet their burden of proof as regards the existence of an implied easement, as this court has simply not been provided with sufficient evidence to discern the parties’ intent. This court concludes therefore, that it is unable to grant plaintiffs the relief they seek under their claim of implied easement.

However, the plaintiffs fair better with regard to their claim of prescriptive easement.

To prevail upon a theory of easement by prescriptive use, “G. L. c. 187, § 2, requires that persons show by clear proof that they or their predecessors have used property . . . ‘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.’” Johnson v. Houghton, 71 Mass. App. Ct. at 835, quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007). See Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). “The requirement frequently stated that in order to create a prescriptive right the use must be ‘open and notorious’ is intended only to secure to the owner a fair chance of protecting himself. . . ‘To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.’” Foot v. Bauman, 333 Mass. 214 , 218 (1955), quoting American Law of Property, § 8.56. See Rotman, supra.

As established, supra, Findings, ¶ 31, the plaintiffs, their predecessor-in-title, and their invitees have used the Santos parcel in the manner asserted in their complaint, continuously, for well over twenty years. [Note 27] In fact, the defendant Joseph M. Santos testified himself, clearly and decisively, that he knew of the plaintiffs’, their predecessors’, and their invitees’ use of his property. “Where, as here, [the owner] had actual notice of the defendants’ continued use . . . , the open, notorious, and continuous use prongs are satisfied.” Rotman, 74 Mass. App. Ct. at 589. Accordingly, “the issue remaining is whether the [plaintiffs’] use was adverse.” Ibid.

“While an owner’s express or implied permission for claimants’ use of his property defeats” such claims, Johnson v. Houghton, 71 Mass. App. Ct. at 835; “[i]mplied acquiescence is not necessarily the same as permission. On the contrary [prescriptive use] may exist where there is [use] with the forbearance of the owner who knew of such [use] and did not prohibit it but tacitly agreed thereto. . . ‘[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription . . unless controlled or explained.’” Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964), quoting Flynn v. Korsack, 343 Mass. 15 , 18 (citations omitted). Nevertheless, “[e]vidence of express or implied permission rebuts th[is] presumption of adverse use.” Rotman, 74 Mass. App. Ct at 589.

Specifically germane to this case, the Supreme Judicial Court has made clear that there is no presumption of permissiveness when a claim of adverse possession is made against a family member’s property. See Totman v. Malloy, 431 Mass. 143 , 147 (2000). Instead, the specific familial relationship amongst the parties is one factor among many others in considering whether use or occupation may be considered adverse. See id. at 148 (holding, “[w]hile evidence of a familial relationship may sometimes assist the fact finder in determining the individual nature of the relationship between the claimants or to whose benefit the land was used, standing alone a familial relationship neither puts an end to the inquiry regarding permissive use nor shifts the burden of proof”). Considering the Totman holding, this court may credit the close familial ties between the parties, here, see Tr. 38, as one factor that might militate in favor of a finding that the plaintiffs’ use was permissive. Certainly, this relationship has a tendency to make assertions of consent to use more, rather than less, probable.

Nevertheless, apart from this factor, there is virtually no evidence to support the defendants’ contention that there was implied consent given to the plaintiffs’ use or that of their predecessors or their invitees. [Note 28] The clear weight of the evidence points in the opposite direction. Indeed, a portion of defendant Joseph M. Santos’ testimony bears a striking resemblance to the plaintiff’s testimony in Rotman, a case in which the Appeals Court reversed a Superior Court judge who had concluded that the defendants’ use was permissive. See id. at 590. Santos testified that no permission was ever requested of him, and that no permission was ever granted by him, yet he contended that permission was implicitly granted. See Tr. 83, 95, 105, and 104. His testimony in this regard may accurately represent what he believed to be true in his mind, but “‘mental attitude is [Note 29] irrelevant where acts import an adverse character to the use of land . . .’” Totman, 431 Mass. at 146, quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992).

Moreover, Santos also offered testimony to the effect that parties associated with the plaintiffs did request permission for other uses of his property, which he granted. This testimony supports the notion that the plaintiffs used the Santos parcel in the manner asserted in this suit, under a claim of right, and not pursuant to the individual defendants’ permission. Consent was deemed unnecessary for the use asserted by the plaintiffs in this suit; whereas it was deemed necessary by the plaintiffs for other uses cited in the course of the trial. Accordingly, this court finds and rules that the plaintiffs’ use was adverse to defendants’ title based upon Findings, ¶¶ 31, 32 & 33.

Predicated upon the foregoing, this court finds that the plaintiffs have met their burden with respect to each element of their claim for prescriptive easement. Accordingly, this court concludes that, as appurtenant to their properties, the plaintiffs hold title, by operation of G. L. c.187, § 2, to an easement of access to Bournes Pond, Falmouth. Said easement of access [Note 30] follows along the northerly boundary of the Santos parcel as depicted in Exhibits 19, 20, and 21.

Judgment to enter accordingly.

Harry M. Grossman

Justice Dated: March 17, 2011.


[Note 1] The plaintiffs filed a motion to dismiss the private defendants’ counterclaims, as well as a motion for partial summary judgment on Count I and supporting materials required by Land Court Rule 4, on April 6, 2007. The defendants filed a cross motion for summary judgment as to Count I, with the requisite supporting materials, and oppositions to plaintiffs’ motions, on May 7, 2007. Plaintiffs filed their response thereafter.

[Note 2] Just prior to this date, the court received, as per its request, a certified copy of the Falmouth Bylaw.

[Note 3] June Pina is the plaintiffs’ sister.

[Note 4] Plaintiffs’ claim of adverse possession to part of the Santos parcel has been waived. See Exh. 31, Stipulations, ¶¶ 12-17. See also Transcript (Tr.), pp. 11-12:

Mr. Kirk: . . . [E]ssentially, this case has come down to a question of whether my clients have rights of passage over property of the defendant, Mr. Santos. They are cousins. The plaintiffs and the defendant are first cousins. The property comes out of common ownership. And it will be our position that over the course of years, either by implication or prescription, that the plaintiffs have acquired permanent rights to pass over the land of the defendant for purposes of access to the property adjacent to Bournes Pond and Bournes Pond.

Even if the adverse possession claim were not waived, it is apparent from the trial record that the parties and their predecessors used each others’ properties continuously during the statutory period; as a consequence, the exclusivity requirement could not be met. See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) (“in the case of adverse possession [unlike that of prescriptive easement] the possession must be shown to be exclusive”).

[Note 5] To the extent that this court’s findings are consistent with the parties request for findings, those requested findings have been adopted and, to the extent they are inconsistent, the requested findings have been rejected.

[Note 6] Also known as Talvida Santos Johnson, Tillie Johnson and Almeida Mathilda Johnson. Stipulations, ¶¶ 5, 20, 21.

[Note 7] See deed recorded with the Registry on January 5, 1923, at Book 394, Page 52. Exh. 1.

[Note 8] See deed recorded with the Registry at Book 657, Page 249. Exh. 2.

[Note 9] See deed recorded with the Registry at Book 675, Page 374. Exh. 3.

[Note 10] See deeds recorded with the Registry at Book 904, Pages 83 and 84. See Exhs. 9 & 10.

[Note 11] This division of the two-acre parcel, described, supra, Findings, ¶ 15, is embodied in the deed recorded with the Registry at Book 1520, Page 97. See Exh. 4.

[Note 12] See deed recorded with the Registry at Book 2343, Page 63. Exh. 5.

[Note 13] The purpose of the confirmatory deed was to establish the Santoses’ joint tenancy rather than tenancy in common. See Exh. 13.

[Note 14] Said deeds are recorded with the Registry at Book 4574, Page 98, and Book 4600, Page 161, respectively. See Exh. 13.

[Note 15] See deed recorded with the Registry at Book 4903, Page 16. See Exh. 14.

[Note 16] See deed recorded with the Registry at Book 9052, Page 198. See Exh. 8.

[Note 17] See deed recorded with the Registry at Book 17119, Page 71. See Exh. 7.

[Note 18] Access to Central Avenue was not pressed during the course of the trial or argument. Consequently, the court treats that issue as having been effectively waived. Thus. for example, in the Joint Pre-trial Memorandum filed with the court on June 1, 2009, the legal issues are framed as follows:

Whether at the time of the creation of the “Johnson parcel” from the larger Santos family parcel, and the conveyance of the Johnson parcel by Joseph Santos to his sister Tillie Johnson, there was appurtenant to that transfer, an easement in favor of the Johnson parcel to pass over the retained Santos parcel and the use of a road for purposes of access to Bourne’s pond.

Whether there is appurtenant to the Johnson parcel, a prescriptive right of easement to travel over the defendant’s land for purposes of access between the Johnson parcel and/or the waters of Bourne’s Pond. (emphasis added)

Further, in plaintiffs’ closing argument, counsel recited the following:

We are seeking relief so that there remains a valuable appurtenance to the Johnson and the Pina properties on Central Ave. to continue to have access to Bournes Pond so that someone taking title to this Development Realty Trust, they don’t put up fences and deprive the Johnsons of what they’ve enjoyed all these years. (emphasis added) Tr. 108.

[Note 19] The court predicates this finding, in part, upon the following testimony of June Pina:

Attorney Kirk: As you were growing up and living in your mother’s house, what use, if any, did your mother make of the area located to the rear of her property at Central Ave.?

June Pina: Years ago, my mother and my aunt had a garden. The property was kind of slopes, and in the valley there, there used to be a barn and a pigpen there. And all the field in behind, my mother and my aunt used to have a garden, and they did that for quite a few years, and then they got jobs that they went to work instead of doing the garden. They gave up the garden. And they used to raise strawberries.


Attorney Kirk: Would your mother and your – do you recall your mother making use of the path and going to the pond?

June Pina: Up until a couple of years before she died, my mother used to walk in the back for her exercise, and she would go all the way down. And then, she used to cut over where the conservation is and come out, which now Mary Manuel Way.


Attorney Kirk: And is it fair to say this type of activity was taking place throughout the time that you were residing at 195 Central Ave. in your parents’ home?

June Pina: The path – it’s always been used from the time I was a little girl. Years ago, when the shellfishing industry was real great, my uncle Albert allowed – the Cash family is the one I remember most – would drive down the path between my uncle’s house and the Hanson property to go shellfishing all the time. And over the years, other people who do it – you know, not commercial fishing but private fishing – would go down shellfishing and go down the path. We did the same thing to go and do shellfishing.

Attorney Kirk: Would it be fair to say that your family, since the time that you can recall living at Central Ave., has had access to Bournes Pond in that general vicinity?

June Pina: Yes.


Attorney Kirk: So, the road [previously referred to as the ‘path’] went, basically, straight down the sideline of the Santos –

June Pina: Right.

Attorney Kirk: -- property?

June Pina: Between the Santos and the Hanson property.


Attorney Kirk: [Referring to the period in which June Pina resided at 778 Teaticket Highway, between 1962 to 1970, and when you visited your mother with your own children –

June Pina: Every day.

Attorney Kirk: -- would they make use of the area to the rear of your mother’s property on Central Ave.?

June Pina: Yes.


Attorney Kirk: Did they go to the pond?

June Pina: When they got old enough; yes. Not when they were little.

Attorney Kirk: How old –

June Pina: That’s where they learned to shellfish out in the back.


Attorney Kirk: And when you moved into your own house on 201 Central Ave., did your children continue to have access to Bournes Pond?

June Pina: When we moved into my own house, my oldest was seven years old. So, within a yare of two, yes. They would go out there in the back.


Attorney Kirk: In order to get there, they would pass over –

June Pina: They would pass over; yeah.

Attorney Kirk: -- over your mother’s property –

June Pina: Right.

Attorney Kirk: -- and then to the Santos property –

June Pina: Right.

Attorney Kirk: -- and then down, using the path –

June Pina: Right.

Attorney Kirk: -- to the pond?


Attorney Kirk: Are your grandchildren currently making use of that road?

June Pina: Yes. They do their dirt-biking back there and down – they do their little safari hunting, and they’ve been doing paintballing with the paintball guns. And as a matter of fact, just about all of my boys learned to drive in the back field there.

Attorney Kirk: Do they swim?

June Pina: Oh, yes.

Attorney Kirk: Do they swim in Bournes Pond?

June Pina: They do more shellfishing than swimming in Bournes Pond because it’s not as clean as it used to be.

Attorney Kirk: Do they still go to the pond?

June Pina: Oh, yes; every chance they can sneak.

See Tr. 19, 20, 21, 22, 24-25, 26, 27, 28, 29, 30, 40, 43, 56-57.

This court makes this finding, as well, upon the following testimony of defendant Joseph M. Santos, which is serves to corroborates the foregoing:

Attorney Kirrane: Now, are you also aware and have you been aware of the fact that the Johnson family has used the path that has been referred to and as shown along the northerly boundary line of the Santos property abutting what is shown on exhibit number 23 as ‘now or formerly Town of Falmouth?’

Joseph M. Santos: Yes.

Attorney Kirrane: And were you also aware of the fact that the – I believe you’ve already testified that you are aware of the fact that the Johnson family also used an area between the Johnson – what we’ll refer to as Tilly’s home, which is highlighted in blue, and the Santos home or your home, which is highlighted in orange on exhibit number 23?

Joseph M. Santos: Yes.


Attorney Kirrane: And you were aware that they were using your property?

Joseph M. Santos: Yes.


Attorney Kirrane: And why didn’t you object to the use of your property?

Joseph M. Santos: We’ve always crossed each other’s properties my whole existence. I spent more time at my aunt’s house than I did at my house.


Attorney Kirk: And you aware of the fact that they [the plaintiffs and parties associated with them] have made substantial use of th[e] path over the past thirty-five years?

Joseph M. Santos: I’m aware they used the path; yes. (emphasis added)


Attorney Kirk: Have members of the Johnson family crossed over the property at 187 for purposes of access and egress onto Central Avenue by vehicles?

Joseph M. Santos: Yes.

Attorney Kirk: And have members of the Santos family crossed over onto the Johnson property on that area for the same purpose?

Joseph M. Santos: Yes.

Attorney Kirk: How long has that practice been going on?

Joseph M. Santos: As long as I’ve been living.

Tr. 82, 83, 83-84, 95, 101.

This court also predicates this finding upon documentary evidence. Exhibit 24, aerial photographs of the area taken in 1960 and 1986 respectively, among other things, depicts the “path” or “road” referred to in Pina’s testimony at both moments in time. That, in recent years, the path has become overgrown, see Tr. 57, does not diminish the probative value of these images as to the parties’ use, taken during the prescriptive period.

It is, nevertheless, telling that the plans drawn up by agents of the developer, in connection with its subdivision plan, also depict the path. See Exhs. 19, 20 and 21; Tr. 99 (noting plans refer to path as “existing 8-foot-wide path”).

[Note 20] The court bases this finding upon, first, the following testimony of June Pina:

Attorney Kirk: Has any member of your family ever asked permission of any member of the Santos family for permission to cross their property and get to the pond?

June Pina: Never.

Tr. 30-31. See also the following testimony of Joseph M. Santos:

Attorney Kirrane: Did anyone ever ask you for permission to use your property --

Joseph M. Santos: No.

Attorney Kirrane: -- from the Johnson family?

Joseph M. Santos: No.

Attorney Kirrane: And did you ever object to their use of the property?

Joseph M. Santos: No.


Attorney Kirrane: And to the best of your recollection, have you ever told any member of the Johnson family or any of their guests that they couldn’t use the path that falls along the northerly property line –

Joseph M. Santos: No.

Attorney Kirrane: -- of your property –

Joseph M. Santos: No.

Attorney Kirrane: -- or use the area between what was Aunt Tilly’s house and your family’s house, as shown on all of these plans that we have referred to, exhibit 23 and others?

Joseph M. Santos: Never denied.


Attorney Kirk: I think you’ve testified that none of the Johnsons ever asked you for any permission to use the pathway leading to the water; is that correct?

Joseph M. Santos: Yes.


Attorney Kirk: No member of the Johnson family ever asked you for permission to use any portion of the Santos property?

Joseph M. Santos: Other than my cousin Kim, no.

Tr. 83, 88-89, 95, 105.

[Note 21] For example, plaintiff June Pina’s son, Philip Pina, sought and received permission to put up a no trespassing sign. See Tr. 57, 82. Joseph M. Santos also testified to an incident in which his cousin’s fiancée asked for permission to have her wedding on his property. See Tr. 84. Significantly, as well, there is record evidence that the defendant Joseph M. Santos had asked plaintiff’s predecessor in title, Almeda Johnson, for permission to subject her property to a greater subdivision plan. See Tr. 92. Accordingly, it cannot be credibly argued that the parties never sought permission from each other for any type of use.

[Note 22] Findings, ¶ 15.

[Note 23] June Pina may have testified to having used the Santos parcel to reach Bournes Pond, but according to her testimony she was a little over a year old at the time of the conveyance. See, supra, Findings, ¶ 13. Her age at the time of the conveyance, taken with her later testimony concerning the time period that children in the Santos-Johnson family would start shellfishing and, therefore, go down to Bournes Pond, indicates that her use for access likely did not begin until she attained the age of eight or nine, i.e., 1953 or 1954.

[Note 24] As recounted above, June Pina did testify as to her mother’s use, but this court must question her credibility on that point as it relates to a period in which Ms. Pina was quite young; therefore such testimony was likely based upon hearsay, at best. However, this court credits Ms. Pina’s testimony with regard to her mother’s use at a later time period when Ms. Pina was older and presumably more aware.

[Note 25] In their submissions, the plaintiffs do not posit an implied easement by prior use. If they had, however, such a theory, which is a subset of the doctrine of implied easement, would fail as well. See Bedford v. Cerasuolo, 62 Mass. App. Ct. at 76-79. Notwithstanding the inconclusive nature of the evidence in relation to the original parties’ intent, which is also a requisite for implied easements by prior use, see Mt. Holyoke, 284 Mass. at 104 (requiring “evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created”) the record evidence of use before the 1947 conveyance is, at best, scant. See Tr. 29-30. June Pina testified that her mother, Almeda Johnson, used her father’s property, but this court can only infer that this testimony is based upon hearsay, as such events predated her birth. See ibid. As mentioned, supra, to establish an implied easement by prior use, a claimant must demonstrate, in addition to indicia of intent, that, (a) when property was held in common, (b) one part of the land was used for the benefit of the other; that, (c) when the property is severed, (d) such use is reasonably (not absolutely) necessary to the continued use of the severed property; and that (e) such reasonably necessary use continues. See Bedford v. Cerasuolo, 62 Mass. App. Ct. at 78 n. 6. Here, the plaintiffs failed to adduce sufficient evidence of (1) prior use at all, let alone (2) prior use benefiting the area which would become the Johnson and Pina parcels (neither of which were improved by a residence prior to the 1947 conveyance); and (3) reasonable necessity. It is undisputed on the trial record that, though it later became unusable, an alternative means of access to Bournes Pond was available over the Hanson property. See Tr. 46.

[Note 26] In their post trial brief, the plaintiffs observe that a partition in kind of the Joseph Santos property that would have provided Almeda Johnson frontage on both Central Avenue and Bournes Pond would have created a dubiously developable property. See Plaintiffs’ Proposed Findings of Fact and Memorandum of Law, p. 9. This observation may incrementally support 22their position, but, again, it presupposes Almeda Johnson’s desire to obtain perpetual access to Bournes Pond over her brother property and, therefore, her intent to take title to an easement. An alternative means of access to Bournes Pond raises some doubt with regard to this presupposition. It is also tautological and, in the absence of more compelling evidence of the parties’ intent, the court is unmoved by this argument.

[Note 27] While, as suggested earlier, there is some evidence relating to earlier use, this court does not consider the evidence conclusive as to said use until some point in the early 1950s. This lack of clarity, however, is of no moment to this court’s analysis as the use conclusively established by the evidence spanned well-more than twenty years regardless of the precise starting date.

[Note 28] The only other evidence that supports the notion that the established use was permissive is that, upon plaintiff June Pina’s testimony, some of that use appeared to be conducted with parties associated with the defendants, physically present. See, e.g, Tr. 27 (describing “the piece between Santos and Johnson” as being “like a community piece where everybody played”). See also Testimony of Joseph M. Santos, Tr. 76-77 (describing substantially the same usage). Arguably, implied consent can be inferred from such use as to that use. There are several problems for the defendants, however, with this evidence. First, much of this evidence relates to use that is beyond that asserted as within the scope of the plaintiffs’ prescriptive easement, rendering this evidence largely irrelevant. The plaintiffs do not seek an easement to use the Santos parcel as a ball field. But see Tr. 47, in which June Pina recounts having observed Joseph M. Santos’s older brother, Robert Santos, lead “expeditions” down to the pond via the established path.

More importantly, there is ample evidence of use by plaintiffs, and parties associated with their interests, unaccompanied by parties associated with the defendants. Defendant Joseph M. Santos’s own testimony confirms this assertion. Thus, even if this court were to set aside such arguably permissive use, there remains more than sufficient adverse use so that plaintiffs have made out their case.

Moreover, this court rejects any contention that any use tacitly consented to, renders all use permissive. The syllogism is faulty on these facts; the conclusion does not follow from the premise. That use is implicitly consented to because the owner is present does not, thereby, render other use for which the owner is not present consensual. In fact, the former use would appear, on its face, to be wholly irrelevant to the latter. For example, an owner might implicitly consent to allow a neighbor to use her property when she is present, but would find such use objectionable in her absence. Such implicitly consensual use does not carry with it license to continue the use in the owner’s absence.

[Note 29] See for example, Tr. 82, 84.

[Note 30] The easement is located upon the so-called Santos parcel.