NANCY BURLINGAME and BROOKS BURLINGAME v. PAUL GAY and VIOLA GAY

Introduction

Plaintiffs Nancy and Brooks Burlingame are the owners of the home, barns and fields at 486 Horseneck Road in Westport (the “farmhouse parcel”), once part of a larger farm sold lot by lot by the Giffords, an old Westport family, as farming became less profitable and successive generations chose a different way of life. Defendants Paul and Viola Gay are the current owners of four of the former Gifford lots, three of which are relevant to this case: (1) the parcel immediately north of the farmhouse, which surrounds its barns and contains a grazing field and the Gifford family cemetery (the “grazing field/cemetery parcel”), [Note 1] (2) a large, never-developed woodlot immediately behind and abutting the farmhouse and cemetery parcels (the “woodlot parcel”), [Note 2] and (3) another wooded lot which once contained a hayfield, located on Division Road and separated from the woodlot by land owned by third parties (the “hayfield parcel”). [Note 3] The farmhouse parcel, the grazing field/cemetery parcel, the woodlot parcel, the hayfield parcel and the intervening properties are shown on the attached Decision Sketch.

There is a gravel driveway from Horseneck Road to the house and barns on the farmhouse parcel (the “farmhouse driveway”). While the Giffords still owned and actively used the other parcels, there was also a dirt pathway from the barns to a gate at the rear of the farmhouse parcel that continued past that gate through the woodlot, the land of the intervening owners, and the hayfield parcel to Division Road (the “path” or “pathway”). A portion of its section on the woodlot is on low-lying ground, muddy and impassable by vehicles when wet from rainfall or the Spring thaws (the March-May “mud season”). The Giffords used the pathway to get their wagons and tractor to and from the hayfield during haying season (June and October) and, on occasion in the 1930’s and 40’s when the ground was dry, as a shortcut when driving from their farmhouse to Russells Mills Village and New Bedford. There was also evidence of the pathway’s use by others, the places, dates and circumstances of which are discussed below.

As the Giffords’ farming became less and less, ultimately ceasing entirely, the pathway became overgrown. The hayfield was sold (1963), then the woodlot (1965), and then the grazing field/cemetery parcel (1968), all to Blanche Southard. Only the farmhouse parcel remained in the family until it, too, was sold when the last resident Gifford died (1995). The estate’s deed of the farmhouse parcel to the Burlingames does not reflect the burden of any easement. The section of the former pathway from the barns to the gate at the farmhouse parcel boundary was completely obscured by vines by the time of that sale. None of Gifford-Southard deeds recites or references any easement rights over the farmhouse parcel, nor does Ms. Southard’s subsequent deed of those properties to the Gays (1993). There is no evidence that Ms. Southard ever used, or asserted a right to use, any portion of the farmhouse parcel for any purpose whatsoever. So far as the record shows, the question of the hayfield, woodlot or grazing field/cemetery parcels’ right of access over the farmhouse parcel to Horseneck Road first (and only) arose some years after the Gays bought them from Ms. Southard and asserted that such rights existed.

The Gays contend that the farmhouse driveway and the entire length of the former dirt pathway are a public road connecting Horseneck Road to Division Road. In the alternative, they assert they have implied or prescriptive rights over the farmhouse driveway and the section of the former dirt path on the Burlingames’ property, and a derelict fee to the half of the driveway that parallels the grazing field/cemetery parcel. The Burlingames disagree.

The case was tried before me, jury-waived. I also took a view. Based on the parties’ stipulations, my observations at the view, the evidence admitted at trial, and my assessment of the credibility, weight and appropriate inferences to be drawn from that evidence and view, I find and rule as follows.

Facts

The relevant facts begin in a simpler time when Westport was a smaller, close-knit community and farming was its primary occupation. One of those farms was owned by the Gifford family, which had settled in Westport in the 1700’s. At its peak, their farm stretched from the East Branch of the Westport River on the west to the town line with Dartmouth on the east, interrupted in places by farms and homes owned by others.

This section of Westport has two north/south roads, Division Road and Horseneck Road. Division Road is located on the boundary with the neighboring town of Dartmouth (thus its name). To its west is Horseneck Road, which runs parallel to the river and ends at Horseneck Beach on the Atlantic Ocean. There are three east/west roads connecting Division Road and Horseneck Road, all public. Starting from the south, they are (1) Horseneck Road (referenced by the witnesses as “Horseneck Road to Dartmouth” to distinguish it from the north/south Horseneck Road), (2) the aptly-named Cross Street, and (3) Hicksbridge Road. The closest commercial centers are Westport’s Central Village across the river to the west and, to the east, Russells Mills Village in Dartmouth. Just beyond Russells Mills is the city of New Bedford.

The Giffords built their farmhouse, barns and storage sheds on the farmhouse parcel, connecting them to Horseneck Road with a long gravel driveway. Their field to the west, beginning at Horseneck Road and continuing to the river, was used to grow potatoes. A small cottage at the river’s edge was accessed by a dirt path from Horseneck Road, the entrance to which was across the road and just to the south of the driveway to the farmhouse and barns. See Decision Sketch.

The fields to the east of Horseneck Road on the farmhouse and cemetery parcels were used to graze dairy cows. Both of those parcels were separately enclosed by stone walls and gates to mark their boundaries and keep the cows inside. To the back of the farmhouse, also on the farmhouse parcel, were sheds, a small vegetable garden and an orchard. For at least some period of time there was also a chicken coop. Directly behind the farmhouse and cemetery parcels was a woodlot (the woodlot parcel) and, beyond that — separated by “Joe Wordell’s place” (now Gooseberry Farms) and a lot owned by the Conway, Bara, Lally and Lavelley families [Note 4] — was a hayfield and further woodland fronting on Division Road (the hayfield parcel). The hay that was harvested from that parcel, once in June and once in October, was stored in the barns on the farmhouse parcel and used for cattle feed and bedding.

The woodlot parcel and the hayfield parcel were accessed from the Giffords’ house and barns by a dirt pathway. This pathway began at the barns and went east to a gate in the stone wall at the back boundary of the farmhouse parcel. Beyond that gate, it continued through the woods of the woodlot parcel, passed over the Gooseberry Farm and Conway, Bara, Lally, Lavelly properties (which were vacant fields), through the hayfield parcel, and ended at a gate at Division Road. See Decision Sketch. The pathway section on the farmhouse parcel is now grassed-over and has been so for some time. The sections on the woodlot and hayfield parcels, overgrown since the 1950’s, have recently been cut, mowed and widened by the Gays, who have also mowed the sections on the Gooseberry Farm and Conway, Bara, Lally, Lavelly properties.

It is not clear when the pathway was first created but it was clearly long ago, pre-dating the lives of the trial witnesses, some of whom were born in the 1920’s. It was certainly made by the Giffords, and its various sections maintained by them, exclusively, when they owned those sections. [Note 5] There was no evidence that anyone else ever maintained or improved any section of the path until the Gays did so recently. It has never been used or maintained by the town, and never traveled or patrolled by the police, fire or other municipal departments. [Note 6]

The pathway was dirt, [Note 7] soft enough to become rutted when used by wagons, tractors or other vehicles. Some of those ruts are still evident today. The pathway appears on an 1895 map, identified as an unnamed “private road.” [Note 8] It appears again on a 1942 map, this time as a “surface improvement.” Neither shows it as a public road. It was never driven upon during the wintertime or the so-called “mud season” of March through May. It was only wide enough for a single wagon or vehicle to pass, and not a single witness could recall an occasion when more than one vehicle was on it. Several witnesses recall walking along the sections now owned by the Gays, generally in the winter, but none recalls seeing anyone but their accompanying companions during those walks. Even those walks were few and far between, more “woodland exploration” than anything else.

The high point of the pathway’s use, at least during the lives of the witnesses, appears to have been in the 1920’s and 30’s when the farmhouse parcel, the grazing field/cemetery parcel, the woodlot parcel, and the hayfield parcel were still in the common ownership of the Giffords and the last full-time farmer in the family, Elmer Gifford, was active. Elmer was born in 1865. He never learned to drive, and used a horse and wagon. The primary use of the lane was to get the wagon to and from the hayfield when the hay was cut and baled (June and October).

Elmer’s only child Mark worked full time as the town mailman, but helped out at the farm in his spare time. He purchased a tractor which thereafter also went back and forth to the hayfield parcel during the haying season. On occasion, weather and path conditions permitting, Mark would drive his car with Elmer and other family members to the general store in Russells Mills using the pathway. Sometimes they would drive to New Bedford. Such trips using the pathway were not frequent, and appear to have ceased entirely by the time of Elmer’s death in 1938.

After Elmer died and Mark sold the remaining cows, the Giffords do not appear to have gone to the hayfield at all. By the mid-1950’s, the pathway was filled with brush and small trees. Few, if any, vehicles of any kind used it thereafter. If anyone was on it after that time, they were walking or riding a horse. [Note 9] The Giffords sold the hayfield parcel in 1963, the woodlot parcel in 1965 and the grazing field/cemetery parcel in 1968, all to Blanche Southard. None of those deeds contained any reference to, or grant of easement in, any portion of the pathway and there was no evidence that Ms. Southard ever used any part of it except on the land she bought. There was likewise no reference to, or grant of easement in, the driveway on the farmhouse parcel in any of the Gifford/Southard deeds, and again no evidence that Ms. Southard ever used that driveway in connection with the parcels she purchased. Ms. Southard sold the hayfield parcel, the woodlot parcel and the grazing field/cemetery parcel to the Gays in a single transaction on February 23, 1993. [Note 10] Again, there was no reference to, or purported grant of easement in, either the pathway or the driveway on the farmhouse parcel, nor any reference to an access route to Horseneck Road.

The Giffords were not the only ones ever to have used the pathway or to continue beyond it over the driveway to Horseneck Road (or to take that route in reverse). But it is important to focus on the identity and circumstances of those users and, in particular, to remember that there was a stone wall and gate at the boundary of the farmhouse parcel, clearly separating it from the woods and fields behind it. The farmhouse parcel was, and very definitely seen as, a “residence” with private yards around it (its section of the pathway ran through those yards) rather than undifferentiated, little used, woodland and fields like the woodlot and hayfield parcels to its rear.

The evidence regarding those “other users” showed the following. In the 1930’s and 40’s, on perhaps no more than eight or ten occasions, William White’s adoptive father, who was a good friend of the Giffords, used the Giffords’ driveway and the path beyond it as a shortcut to drive to the hay and grain stores in Dartmouth. [Note 11] I find he did so with permission, since he was such a good friend that he would generally stop to talk to the Giffords when he went by. Moreover, his use was neither frequent nor continuous.

Raymond Davoll, whose family owned a general store in Russells Mills, recalls his father using the pathway on three or four occasions when he made deliveries to the Gifford farm, entering from the Division Road side. [Note 12] The last such occasion Mr. Davoll could recall occurred in 1939, and there could not have been any such use past the early 1950’s since that is when the Davolls’ store ceased making deliveries. According to Mr. Davoll, the pathway through the Giffords’ land was “nothing but two ruts for a wagon or a truck. Just dirt. And in the springtime there was plenty of mud. You didn’t go there [then].” I find these trips to be permissive as well. And again, they were neither frequent nor continuous.

Russell and Alvin Tripp, who leased the grazing fields on the farmhouse and grazing field/cemetery parcels after Elmer Gifford died and his son Mark sold the remaining cows, on occasion used the driveway and a portion of the pathway to get to those fields. [Note 13] But they did so only for that purpose, and never drove the length of the lane to Division Road. This use was clearly permissive since it was tied to their lease. Moreover, their usual access route was over the grazing field/cemetery parcel through a break in its wall. They would have stayed off the Giffords’ driveway when taking their cows to and from the fields to keep cow pats off its surface.

The Giffords’ personal need for hay ceased at the time Mark sold the family’s remaining cows. To keep the fields from becoming overgrown, he allowed his friend John Bettencourt to cut and keep their hay and to use the driveway and pathway to get to those fields. This use too was permissive as shown by the fact that Mr.Bettencourt ceased using this route when he stopped cutting the hay.

George Lake, a local shell fisher, frequently drove the length of the pathway and driveway to get from his house on Division Road to the Westport River bank. [Note 14] But he too was a friend of the Gifford family, doing carpentry work at the Giffords’ farmhouse and often stopping at the house to talk. His use ceased in the 1950’s. I find this use was permissive. [Note 15]

Another local shell fisher, Mr. Urczyk, [Note 16] would also drive on the pathway, the driveway, and the dirt pathway over the Giffords’ riverside fields, but again with the Giffords’ permission. [Note 17] His use too likely ceased in the 1950’s.

Claude LeDoux would occasionally walk on the portion of the way now owned by the Gays (it was owned by Blanche Southard at the time) but rarely, if ever, over the farmhouse parcel. There was a gate in the stone wall at the back boundary of that parcel, where he would stop. Until he and Mr. White were hired by the Gays in 2000 and 2001 to thin out the woods on the woodlot and hayfield parcels, Mr. LeDoux never drove a vehicle on any part of the pathway or driveway. When Mr. LeDoux and Mr. White did their wood-thinning, they accessed the woodlot parcel either from the Division Road side or by driving to and from Horseneck Road over the grazing field/cemetery parcel, knocking holes in its walls to do. The space between the northern boundary of the farmhouse parcel (just north of the barn) and the southern wall of the cemetery itself was 35 feet, more than enough to drive through and 15 feet wider than the driveway and the section of the pathway on the farmhouse parcel. See Trial Ex. 1.

Another Gifford family friend, Ethel Shaw, would occasionally walk on the pathway from the Division Road side, but always stopped at the farmhouse parcel gate. Neither she nor any member of her family drove on any part of the pathway, and she does not recall ever seeing a car or any other type of vehicle use it.

Alice Caulfield occasionally rode a horse or walked her dogs on the woodlot parcel section of the pathway, but never went past the gate onto the farmhouse parcel.

Boy Scouts explored the Giffords’ woods from time to time, as well as the woods on the neighboring properties, and sometimes walked on the pathway in the course of these explorations. Their leaders (Ethel Shaw was one) were friends of the Giffords, and I find this use to have been permissive. Hunters occasionally walked through the woods or the woodlot and hayfield sections of the path, but this too was likely permissive. Neither the Boy Scouts, nor the hunters, nor weekend walkers through the woods appear ever to have gone onto the farmhouse parcel. All began on the Division Road side. To the extent they went as far as the farmhouse parcel, they would stop at the gate in the stone wall at its back boundary.

The Gays contend that the lane had a more general use, and cite to a conversation between Mr. Gay and Mark Gifford’s widow, Ethel, in the early 1990’s. According to Mr. Gay, Ethel told him that oftentimes people would drive on the pathway and driveway and stop by her house to chat. But there is less to this statement than the Gays suggest. The only person Mr. Gay can recall Ethel mentioning was George Lake who, as noted above, drove on the path with the Giffords’ permission. The fact that the passers-by would stop to talk with Ethel shows that they were friends, which again indicates permission. Ethel gave no details, so it is impossible to discern what she considered “often,” over what time frame, or with what frequency, and the nature of the conversation (a casual chat with a now-deceased person, related by a party with a distinct self-interest), particularly when matched up with the other testimony in the case, leads me to give Mr. Gay’s recitation little weight. Ethel’s grandchildren, Charlotte Gifford McMurray and Mark Gidley, were often with Ethel at the farmhouse and cannot recall anyone other than George Lake driving on the pathway. Mr. Gay says that he drove on it, but this was at a time when he owned the hayfield and woodlot parcels (and thus the sections of the pathway on those parcels) and was taking his wife to Ethel’s house for painting lessons. Fairly viewed, such use of the path and driveway on the farmhouse parcel was permissive.

The town’s cemetery department uses the driveway to access the Gifford family cemetery on the grazing field/cemetery parcel, but this has always been permissive. They go there to cut the grass around the gravestones pursuant to a perpetual care agreement with the Giffords. Only Giffords are buried in the cemetery, and there was no evidence of any member of the general public ever visiting it except on the occasion of the last burial (Ethel Gifford in 1994). Each of the visitors on that occasion was almost certainly a close family friend.

The only person who appears to have used the driveway and pathway on the farmhouse parcel without permission is a Mr. Stanley Shane, who drove his van from Horseneck Road past the farmhouse on two occasions, once in 1999 when he was stopped by Ms. Burlingame and turned around after she asked him to leave, and again in 2000 after this case had commenced and a preliminary injunction allowing access had been entered. That injunction was entered on short notice before the facts in this case were fully developed and, as it stated, its preliminary findings and rulings carried no precedential weight. Order on Cross Applications for Preliminary Injunction (Dec. 7, 2000) (Lombardi, J.).

Additional facts are set forth in the analysis section below.

Analysis

On a number of theories, [Note 18] the Gays assert that the driveway and former dirt pathway on the Burlingames’ land (the farmhouse parcel), together with the former dirt pathway through the woodlot parcel, the intervening land, and the hayfield parcel, are a right of way stretching from Horseneck Road to Division Road which the Gays may widen, improve and use along its entire length for vehicular access to their land. The Burlingames disagree and brought this action seeking a declaration that no such right of way exists, at least in the section over their property. [Note 19] I address each of the Gays’ contentions in turn.

The Driveway and Former Pathway Crossing the Burlingame Property are Not a Public Way

There are only three ways by which a passage becomes public: “a laying out by public authority in the manner prescribed by statute (see G.L. c. 82, §§ 1-32); (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal (see Longley v. Worcester, 304 Mass. at 587-589; Uliasz v. Gillette, 357 Mass. at 104), coupled with an express or implied acceptance by the public.” Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). In this case, the Gays contend that the dirt pathway, together with the Burlingames’ driveway, have become public by prescription. I disagree.

A public right of way by prescription “depends on a showing of actual public use, general, uninterrupted, continued for the prescriptive period [twenty years].” Fenn, 7 Mass. App. Ct. at 84 (internal quotations omitted), citing Jennings v. Inhabitants of Tisbury, 5 Gray 73 ( 71 Mass. 73 ), 74 (1855). See also Commonwealth v. Coupe, 128 Mass. 63 , 68-69 (1880). “The further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.” Fenn, 7 Mass. App. Ct. at 84, quoting Bullukian v. Franklin, 248 Mass. 151 , 155 (1924).

Here, there was no credible evidence, and certainly none persuasive, that the driveway and pathway as a whole, much less the driveway and the portion of the path on the farmhouse parcel, were ever used by “the general public…as a public right,” and certainly not with the requisite frequency and uninterrupted continuity to acquire prescriptive rights. The town does not recognize the route as a public way. It has never maintained it. Its police have never patrolled it or even used it as a shortcut. As discussed above, aside from an occasional hunter or weekend walker on the Gays’ portion of the path (the hayfield and woodlot parcels), everyone who used it did so with permission. [Note 20] The Whites had been friends of the Giffords for generations. So was George Lake, the most frequent user, who did carpentry work at the Gifford farmhouse and would stop to talk to the Giffords when he drove by. Mr. Urczyk had permission. So did the Tripps and the Bettencourts, who used it only when they were working on the property at the Giffords’ direction. Mr. LeDoux, Ms. Shaw and Ms. Caulfield would walk from time to time on the woodlot and hayfield parcels, but never past the gate onto the farmhouse parcel because they considered it to be the Giffords’ back yard. The Davolls used the route to deliver supplies to the Gifford house, continuing on to make deliveries to others, but this was clearly permissive. The town employees who do cemetery maintenance travel over the driveway with permission pursuant to the perpetual care agreement. Moreover, none of this use was “general, uninterrupted, [and] continued” for twenty years or more under a claim of right. With the possible exception of Mr. Lake and Mr. Urczyk — shell fishermen going to and from the river — these trips were scattered in time and few in number. The depiction of the route on old town maps does not persuade me otherwise. It appears to be shown as a private way, not a public one, and the maps are at a level that everything is shown, public and private, including dead end driveways and minor outbuildings. Without convincing supporting evidence of actual public use (and here, there was none), the thoroughness of the mapmakers in showing every structure and pathway cannot confer a status that has not otherwise been shown to exist.

The Gays’ Parcels Have Not Acquired Prescriptive Rights Over the Burlingames’ Property

The Gays claim an easement by prescription over the Burlingames’ property based on their use, as well as the use of their predecessors in title, of the alleged right of way. This requires open, adverse and continuous use for twenty years or more prior to the commencement of the lawsuit. Ryan v. Stavros, 348 Mass. 251 , 262-263 (1964); Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n. 8 (1996) (filing of lawsuit stops period of adverse possession). [Note 21] Since the case was filed in 2000, the period of adverse use must have begun no later than 1980. Clearly that has not occurred. There could not have been any adverse use by the Giffords, who owned the farmhouse parcel until 1995. There was no evidence of adverse use by Blanche Southard, who purchased the hayfield, woodlot and grazing field/cemetery parcels from the Giffords in the 1960’s and held them until she sold them to the Gays in 1993. There could not have been twenty years of adverse use by the Gays, who did not go on the farmhouse parcel as owners of the allegedly benefited parcels until after the 1993 purchase. And, as explained above, George Lake’s use was permissive, not adverse, so there is no basis for any prescriptive easement benefiting his former house site, now owned by the Gays.

There is No Easement by Necessity Over the Burlingames’ Property Benefiting Any Portion of the Gays’

In Count 3 of the counterclaim, the Gays claim an easement by necessity. An easement by necessity is implied when a parcel is conveyed out of land under common ownership and would be landlocked without access over the conveying owner’s remaining land. Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 77 (2004). Massachusetts cases consistently hold that the necessity which gives rise to the easement rights “need not be an absolute physical necessity, yet it must be a reasonable necessity.” Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 101 , 105 (1933). “The burden of proving the intent of the parties to create an easement which is unexpressed in a deed is upon the party asserting it.” Id. The Gays have not met this burden.

The hayfield parcel has never been landlocked, and has always had access to a public way. This is so for the grazing field/cemetery parcel as well, which fronts on Horseneck Road. As the evidence showed, there is more than enough room between the boundary of the farmhouse parcel (just north of the barns) and the wall around the cemetery for vehicles to pass and re-pass. [Note 22] Indeed, as previously noted, this is exactly the route taken by Mr. White and Mr. LeDoux when they were removing wood from the Gays’ woodlot and hayfield parcels at Mr. Gay’s direction. They created an entryway directly onto the grazing field/cemetery parcel from Horseneck Road, showing that it was not only possible, but easy. The woodlot parcel may technically have been landlocked from 1965 (when it was purchased from the Giffords by Ms. Southard) to 1968 (when she purchased the grazing field/cemetery parcel), although this clearly did not bother Ms. Southard who never sought or obtained an easement over the farmhouse parcel. To the extent she needed access, she likely was satisfied with the pathway to Division Road. But the “landlocked” status of the woodlot parcel disappeared with Ms. Southard’s purchase of the grazing field/cemetery parcel, removing the “necessity” and thus the implication of any such easement. See Hart v. Deering, 222 Mass. 407 , 410 (1916); Viall v. Carpenter, 80 Mass. 126 (1859); Baker v. Crosby, 75 Mass. 421 (1857). The Gays have never been landlocked during any period of their ownership, since they purchased the grazing field/cemetery, woodlot, hayfield and George Lake parcels at the same time by single deed from Ms. Southard. Nor can necessity be implied from any topographical condition. Whatever low-lying areas may exist near the boundary of the woodlot and grazing field/cemetery parcels do not, as a practical matter, prevent the construction of an access road. [Note 23] There was no persuasive evidence that low-lying wetlands extend the entire length of the boundary, nor that an access road could not be built around, through, or over them.

There is No Easement by Implication Over the Burlingames’ Property From Pre-Existing Use

The Gays claim an easement by implication over the Burlingames’ property from pre-existing use. Certainly the Giffords used the alleged way during the period of their ownership, but that is not the entirety of the test. In its entirety, the test is as follows.

Where 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.

Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953).

No such showing of reasonable necessity has been made. First, Ms. Southard clearly did not feel it was “necessary.” As noted above, so far as the record shows, she never sought, never used, and certainly never obtained such an easement in any of her deeds from the Giffords. Moreover, “if the landowner can at reasonable cost construct a way over his own land, there is no way by necessity.” Davis v. Sikes, 254 Mass. 540 , 546 (1926). See also Adams v. Marshall, 138 Mass. 228 , 236-237 (1885) (“The law upon ways by necessity has been frequently considered by this court, and it is established that such ways exist only so long as the necessity exists…If the landowner can at reasonable cost construct a way over his own land, there is no way by necessity.”). As noted above, whatever “necessity” may once have existed disappeared when the Giffords sold Ms. Southard the grazing field/cemetery parcel, and this may well have been at least a part of the “intent” behind that conveyance. As Construction of an access way from the woodlot parcel to Horseneck Road over the grazing field/cemetery parcel can easily be accomplished, as shown by Messrs. LeDoux and White. It is also worth noting the type of use that occurred during the Giffords’ ownership. There were no structures on the hayfield, woodlot or grazing field/cemetery parcels. The Giffords’ used the driveway and pathway to get to those parcels from the farmhouse and barns on the farmhouse parcel, a use no longer necessary. As shown by the Tripps, cows from elsewhere could (and did) get into the grazing field/cemetery parcels directly from Horseneck Road, not the driveway. As shown by Mr. White and Mr. LeDoux, wood can (and was) easily removed from the woodlot by use of a route over the grazing field/cemetery parcel. The Gays have no need or occasion to access the cemetery itself, which is private to the Giffords.

The Gays Do Not Have a “Derelict Fee” in Any Portion of the Driveway

The Gays claim a fee interest in one-half of the Burlingames’ driveway pursuant to G.L. c. 183 §58. That statute provides, in relevant part,

Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument…

The Gays’ claim fails for a simple, basic reason. For the reasons set forth above, the driveway is not, and has never been, a public or private “way.” It has always been, and remains, the driveway to the farmhouse.

Conclusion

For the foregoing reasons, the Burlingames’ request for a declaratory judgment that the Gays have no rights to any portion of the Burlingames’ property is ALLOWED, and the Gays’ counterclaims for “public road” by prescription, “private way” by prescription, necessity or implication, and for a derelict fee interest in one-half of the Burlingames’ driveway, are DISMISSED in their entirety, WITH PREJUDICE. The Burlingames’ remaining claims (the ones that were not voluntarily dismissed) are dismissed without prejudice. [Note 24] Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 18 July 2011