RALPH R. BAGLEY, TRUSTEE OF THE MORASH FAMILY TRUST v. KATHERINE SENN, JOANNE SHEFFEL, and SCOTT F. KERR, PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRIET H. KERR

In this case I am called upon to decide whether plaintiff Ralph R. Bagley (“Bagley”), Trustee, acquired title by adverse possession, or easements by prescription, to property owned of record by defendants Katherine Senn, Joanne A. Sheffel, and the late Harriet H. Kerr (“Defendants”). [Note 1] The claim for adverse possession involves a twenty by one hundred rectangular parcel of land (“Disputed Parcel”). The claims for prescriptive easements are: (1) the right to use a gravel way (“Gravel Way”) across Defendants’ property for ingress and egress onto Bagley’s property; (2) the right to walk along certain footpaths on Defendants’ wooded lot; and (3) the right to use the oceanfront on Defendants’ property for swimming, sunbathing, picnicking, and other customary beach uses. After trial, on all the evidence I credit, I now decide these claims, making findings of fact and rulings of law.

I. Undisputed Facts

Based on the record before the court, and the parties’ stipulations, the following facts are without any substantial dispute:

Bagley owns of record a parcel of land (“Morash Property”) that abuts the Disputed Parcel and is located on a private way off Langsford Street, Gloucester, Essex County, Massachusetts. The Disputed Parcel and the land over which Bagley claims the easements comprise, in part, Defendants’ property known as the Tiderock property (“Tiderock Property”). The Tiderock Property originally consisted of 6.24 acres northwest of Langsford Street and running westerly towards the ocean. The Tiderock Property is shown on an unrecorded plan titled “Subdivision Plan of Land in Lanesville, Gloucester, Massachusetts,” prepared by Matt A. Hautala and dated January 2, 1953.

Frederick R. Hoffman (“Hoffman”) and Amy W. Coggeshall (“Coggeshall”) acquired the Tiderock Property as tenants in common on February 10, 1953 by a deed from Walter W. Nichols et ux, recorded in the Essex County (South District) Registry of Deeds (“Registry”) Book 3958, Page 547. In April of 1953, Hoffman and Coggeshall subdivided part of the Tiderock Property closest to Langsford Street into six lots numbered 1 through 6 along a forty-foot wide way. This is shown on a plan titled “Subdivision Plan of Land in Lanesville, Gloucester, Massachusetts,” prepared by Matt A. Hautala, dated April 28, 1953, and recorded at the Registry at Book 3991, Page 466 (“Hautala Plan”). Hoffman and Coggeshall sold the lots numbered 2 through 6 to various individuals in 1953 and 1954 while retaining ownership of lot number 1, as well as the unsubdivided area of the property running west from lots 5 and 6 to the ocean.

The deed to lot number 2, from Hoffman and Coggeshall to Genevieve B. Kingman, is dated May 26, 1954 and recorded with the Registry at Book 4077, Page 409. The deed to lot number 3, from Hoffman and Coggeshall to C. Malcolm Derry et ux as tenants by the entirety, is dated May 27, 1953 and recorded with the Registry at Book 3991, Page 466. The deed to lot number 4, from Hoffman and Coggeshall to Sadie B. Schlagenhauf and Leslie B. Morash as tenants in common, is dated May 27, 1953 and recorded with the Registry at Book 3991, Page 470. The deed to lot number 5, from Hoffman and Coggeshall to Percival D. Whipple ex ux as tenants by the entirety, is dated May 27, 1953 and is recorded with the Registry at Book 3991, Page 472. Lastly, the deed to lot number 6, from Hoffman and Coggeshall to Albert C. Smith ex ut as tenants by the entirety, is dated May 27, 1953 and recorded with the Registry at Book 3991, Page 474.

Each of the five deeds to lots 2 through 6 from Hoffman and Coggeshall to the individuals stated above refers to the forty-foot right of way shown on the Hautala Plan and states that each grantee is granted an express easement to use the way. Additionally, Hoffman and Coggeshall reserved an easement in the way for the benefit of their remaining land. The language set out in each deed states:

"Together with an easement through, under, and across the forty (40) foot wide roadway leading Northwesterly from Langsford Street to the above conveyed premises, for all the usual purposes of a way, including the installation and maintenance therein of water pipes, electric, gas and telephone wires and conduit, and all other utility services, for the benefit of and as appurtenant to the premises herein conveyed.

"And the Grantors reserve a similar easement through, under, and across said forty (40) foot wide roadway leading Northwesterly from Langsford Street, for the benefit of and as appurtenant to their remaining land, for all the usual purposes of a way, including installation and maintenance therein of water pipes, electric, gas and telephone wires and conduits, and all other utility services."

Defendants then acquired Hoffman’s interest in the property by deed dated December 23, 1975 and recorded with the Registry at Book 6208, Page 675. Following Coggeshall’s death, Defendants acquired Coggeshall’s interest in the property from the heirs under Coggeshall’s will. This deed is dated October 1, 1981 and is recorded with the Registry at Book 6873, Page 127. Defendants then purchased lots 5 and 6 from Charles Smith, who acquired the properties from the original owners. [Note 2] This deed is dated May 29, 1987 and is recorded with the Registry at Book 8995, Page 519. Defendants currently own of record lots 1, 5 as well as lot 6, the remaining unsubdivided portion of the Tiderock Property, and have an express easement over the right of way reserved by Hoffman and Coggeshall and acquired from Charles Smith. When the Tiderock Property was subdivided and sold in 1953 and 1954 there was one winterized home on lot 5, one winterized home on lot 6, one summer cottage on lot 3, and one summer cottage on lot 4. Today there is one winterized home on lot 2, one winterized home on lot 3, and one winterized home on lot 4, with no homes remaining on lots 5 and 6.

Bagley is the current record legal owner of the Morash Property, known as lot 4 on the Hautala Plan. As the trustee of the Morash Family Trust, Bagley derived his title from two transactions. In a deed dated September 21, 1987 and recorded with the Registry at Book 9203, Page 457, Janice R. MacDonald, guardian of Sadie B. Schlagenhauf, granted Sadie B. Schlagenhauf’s interest in lot number 4 to Leslie B. Morash. Bagley, as executor of the estate of Leslie B. Morash, deeded to himself as trustee of the Morash Family Trust lot 4 on June 27, 2005, by deed recorded with the Registry at Book 24507, Page 595. On July 1, 2005 the Declaration of Trust for the Leslie B. Morash Family Trust of 2001 was recorded with the Registry at Book 24507, Page 578.

II. Descriptions of the Disputed Parcel and the Prescriptive Easements

The Disputed Parcel can be located on the plan titled “Plan of Land in Gloucester, MA” prepared by Hancock Engineering Associates and dated April 1, 2008 (“Hancock Plan”). It is a twenty foot by one hundred foot rectangular parcel of land, which spans the entire length of Bagley’s property. The Disputed Parcel begins at the southern boundary of Bagley’s property and extends twenty feet south into the existing right of way, essentially extending Bagley’s land by twenty feet.

Bagley’s first claim for a prescriptive easement concerns his right of ingress and egress over the Gravel Way to his property. The Gravel Way, located on the Hancock Plan, runs diagonally from northwest to southeast across lot 1. The Gravel Way begins along the northern portion of lot 1 adjacent to the forty-foot right of way approximately thirty feet east from the boundary line shared with lot 3. It then proceeds in a southeasterly direction across lot 1 where it intersects Langsford Street approximately forty feet north of the southeastern corner of the property which abuts Langsford Street and Coggeshall Road.

Bagley’s second claim for a prescriptive easement concerns various footpaths located on the undeveloped portion of the Tiderock Property. The undeveloped portion, labeled lot 7 on the Hancock Plan, extends westerly from lots 5 and 6. The footpaths, marked with dashes and labeled “existing footpath” on the Hancock Plan, run from Defendants’ property to the Atlantic Ocean with connecting footpaths to City of Gloucester’s Seaside Cemetery (“Seaside Cemetery”) and Coggeshall Road. It is undisputed that the footpaths exist, at least to some degree, on the ground as they have been depicted on the Hancock Plan.

Bagley’s third claim for a prescriptive easement concerns the use of the oceanfront along Defendants’ property. This area spans the width of Defendants’ property, and is comprised entirely of rocks with no boundary markers placed on the rocks. It is located between the Steven J. Hung and Jennifer E. Sweet property to the south and the Seaside Cemetery to the north, both of which are depicted on the Hancock Plan.

III. Procedural Posture

Bagley commenced this action on January 2, 2007; Defendants answered the complaint on February 20, 2007. Bagley then filed a Motion to Amend Complaint on May 21, 2007 and the parties stipulated to an Order Allowing Bagley’s Motion to Allow First Amended Complaint, filed on October 9, 2007. The parties then filed a stipulation on November 5, 2007 to substitute Scott F. Kerr, as personal representative of the Estate of Harriet H. Kerr, for the Defendant Estate of Harriet H. Kerr. On June 5, 2008 Plaintiff filed a request for default pursuant to Mass. R. Civ. P. 55(a) on Defendants Mary C. Thomas (“Thomas”) and Eileen P. Sullivan (“Sullivan”). Default entered against Thomas and Sullivan on June 13, 2008. Discovery closed on June 30, 2008, and the parties filed a subsequent stipulation for an Order Allowing Motion to Amend the First Amended Complaint on February 11, 2009. The First Amended Complaint was also filed on February 11, 2009 along with the parties’ joint pretrial memoranda. The pretrial conference was held on February 17, 2009, and the trial, originally scheduled for April 29 and May 1, 2009, was postponed at the request of Bagley until June 29, 2009.

In the presence of counsel and some of the parties involved in this trial, I took a view of the locus on April 23, 2009. Bagley filed a Motion to Enforce Settlement on May 15, 2009; Defendants filed a written opposition on May 21, 2009. Following hearing on May 26, 2009, I denied Bagley’s motion primarily because of the failure, after two and a half months, to report the claimed settlement to the court.

The trial was held on June 29 and June 30, 2009 in Boston. A court reporter, Karen Smith, was sworn to transcribe the testimony and proceedings. The following people testified: Linda Kirk, Vaclav V. Talacko, Anita Durette, and Frederick J. Geisel for Bagley, Katherine Senn, Scott F. Kerr, and Joanne A. Sheffel for the Defendants. Bagley’s motion in limine to exclude the Defendants from arguing the defense of laches, filed on June 26, 2009, was heard during trial. I denied the motion without prejudice, allowing Bagley to make his arguments against the defense of laches in his posttrial memorandum. During trial on June 30, 2009, Bagley also sought to amend the pleadings under Mass. R. Civ. P. 15(b) to add an additional 453 square feet to the area he already claimed through adverse possession. The motion was denied because its late introduction prejudiced the Defendants. With the court’s denial of this request to expand materially the area of Bagley adverse possession claim, the area in dispute for adverse possession is limited to the area shown in exhibit A1 of the original complaint, which is a twenty by one hundred rectangular parcel. At the conclusion of the taking of evidence, I suspended the trial to hear closing arguments with the benefit of posttrial briefing.

All parties filed proposed findings of fact and rulings of law, and posttrial memoranda, on September 8, 2009. Along with his filings, Bagley also filed on September 8, 2009 a motion to reconsider the decision denying Bagley’s request to amend the pleadings, originally brought June 30, 2009. Defendants then filed September 28, 2009 an opposition to Bagley’s motion for reconsideration. Trial reconvened for closing arguments on November 19, 2009 at which time I granted the motion for reconsideration, and, on reconsideration, again denied the motion to amend the pleadings, ruling that: (1) amending the area claimed by adverse possession to include more than the originally claimed area, which Bagley had claimed consistently throughout the litigation, would be prejudicial to the Defendants; (2) the amendment is material and would limit or prevent the use of the access way which Defendants have relied on to develop their property; and (3) the last-minute nature of Bagley’s request leaves the Defendants in a poor position to effectively defend against the enlarged area. After hearing closing arguments, I took the case under advisement.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and arguments of the parties, I now decide the case.

For the reasons given below, I find and rule that Bagley has satisfied his burden of proof with respect to the Gravel Way, thereby obtaining a prescriptive easement for seasonal ingress and egress over the Gravel Way which is appurtenant to his parcel. Bagley has not, however, satisfied his burden of proof for the Disputed Parcel claimed through adverse possession, and that land remains in Defendants’ ownership free of any rights of Bagley. Additionally, Bagley has not satisfied his burden of proof as to his claim for prescriptive easements to use the footpaths through the undeveloped wooded lot and to use the oceanfront area known as Tiderock. This land also remains in Defendants’ ownership free of any rights of Bagley. [Note 3]

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IV. Discussion

A. Adverse Possession

It is well settled that to establish title by adverse possession to land owned of record by another, the claimant must show “proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003) (quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964)); Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992); G. L. c. 260 § 21. The burden of proof in an adverse possession claim rests entirely on the person claiming title and “extends to all of the necessary elements of such possession.” Lawrence, 439 Mass. at 421 (quoting Mendoca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968)). “If any of these elements is left in doubt, the claimant cannot prevail.” Mendoca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). “Determin[ing] whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

The nature and extent of use required to establish title by adverse possession varies “with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” LaChance v. Rubashe, 301 Mass. 488 , 490 (1938); see also Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (“[a] judge must examine the nature of the occupancy in relation to the character of the land.”) (quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). The claimant must demonstrate that he or she made changes upon the 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 v. First Natl. Bank & Trust Co. of Greenfield, 301 Mass. 488 , 491 (1938).

Acts of ownership must be open and notorious so as to place the true owner “on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Lawrence, 439 Mass. at 421 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)) (internal quotation marks omitted). “To be ‘open’ the use must be made without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)); Foot v. Bauman, 333 Mass. 214 , 218 (1955) (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)).

While the acts of possession must be open, proof of actual awareness on the part of the record owner is not required: “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.” Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)); Foot, 333 Mass. at 218 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)). “There is no requirement that the true owner be given explicit notice of adverse use,” Lawrence, 439 Mass. at 421, and if the use is open and notorious, it is “deemed to place the true owner on constructive notice of such use, and it is immaterial whether or not the true owner actually learns of that use . . . .” Id. Open and notorious use, however, must be continuous. See Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (stating that infrequent use does not satisfy a claim for adverse possession). Acts of possession that are “few, intermittent and equivocal” are insufficient to serve as a basis for adverse possession. Kendall, 413 Mass. at 624 (quoting Parker v. Parker, 83 Mass. 245 (1 Allen), 247 (1861)) (internal quotation marks omitted).

The testimony established by Bagley on direct examination is not sufficient to show a continuous use of the claimed land over a twenty year period, and Bagley fails to satisfy the elements for adverse possession. At best, the testimony shows that the use of the Disputed Parcel was occasional, and where acts of possession are “few, intermittent and equivocal,” the claimant fails on a claim for adverse possession. Kendall, 413 Mass. at 624.

The witnesses for Bagley testified that they remember being at the cottage [Note 4] since they were children, clearing the land of brush and brambles and using the Disputed Parcel for recreational activities, such as badminton, croquet, and picnics. Trial Tr. vol 1, 41, 43, 47, 175, 178-181, June 29, 2009. Linda Kirk testified that she remembers raking and picking up branches, having picnics, and playing badminton, croquet, flashlight tag, and horseshoes in the Disputed Parcel. Trial Tr. vol. 1, 41, 43, 46-48, June 29, 2009. More specifically, she testified that the clean up on the Disputed Parcel has been done every year since 1953. Trial Tr. vol. 1, 54, June 29, 2009. Linda Kirk also referred to exhibit 30, which is a photograph depicting a picnic table on the Disputed Parcel, as an example of the gatherings that took place at the cottage and the placement of tables during these events. The event shown in exhibit 30 is her sister’s sixteenth birthday party. Trial Tr. vol. 1, 49-50, June 29, 2009.

Anita Durette’s testimony conformed with the testimony of Linda Kirk. Anita Durette stated that as children they would play games, such as badminton and croquet, all around the cottage, but particularly in the Disputed Parcel because that area was the flattest and they did not want to wear down the grass. Trial Tr. vol. 1, 175, June 29, 2009. She also stated that they would clean up the Disputed Parcel, picking up branches, “brambly bushes,” and raking, although now a landscaper maintains the Disputed Parcel. Trial Tr. vol 1, 178-179, June 29, 2009. Anita Durette testified that the Defendants never cleaned up the Disputed Parcel and that no one ever used the Disputed Parcel except for her family and the landscaper. Trial Tr. vol. 1, 180-181, June 29, 2009. There were also various gatherings and picnics at the cottage since 1953. Trial Tr. vol. 1, 179-180, June 29, 2009.

The witnesses for Bagley testified that they also parked their cars on the Disputed Parcel. Linda Kirk stated that exhibits 28 and 29, which are photographs of cars parked on the Disputed Parcel illustrated where people parked their cars when they visited the cottage. Trial Tr. vol. 1, 49, 51-52, June 29, 2009. She also stated that people would park all around the cottage, in front and on the side of the cottage as well as on the lawn. Trial Tr. vol. 1, 51, June 29, 2009. Anita Durette also testified that when she went to the cottage she would either park in front of the cottage next to the birch tree or on the side of the cottage near the Gravel Way. Trial Tr. vol. 1, 176-177, June 29, 2009. She referenced exhibit 41, which is a photograph of cars parked on the Disputed Parcel, as depicting the two spots were she would park and noted that the sandy area in the center of the photograph was where they would do most of the clean up and where they would play badminton, horseshoes, and croquet. Trial Tr. vol. 1, 177-178, June 29, 2009. She described the two parking areas shown in exhibit 41 as being in front of the cottage and on the side of the cottage. Trial Tr. vol. 1, 178, June 29, 2009. The car pictured in exhibit 41 next to the birch tree is in front of the cottage while the car in the foreground of the photograph is on the side of the cottage. Trial Tr. vol. 1, 178, June 29, 2009. Anita Durette also testified that when there were picnics at the cottage, guests would park first on the side of the house near the Gravel Way (as shown in exhibit 41), then flow over onto the area of grass on the side of the cottage, and then onto the sandy area of the Disputed Parcel. Trial Tr. vol. 1, 180, June 29, 2009.

Frederick J. Geisel also testified that exhibit 41 depicted the sandy area where the Morash family would park their cars. Trial Tr. vol. 2, 29-30, June 30, 2009. Vaclav V. Talacko, however, testified that when he was on the Morash Property, he never saw any cars parked on the Disputed Parcel. Trial Tr. vol. 1, 141, 165, June 29, 2009.

The testimony illustrates that Bagley has used the Disputed Parcel for recreational activities and has cleaned and maintained the area since 1953; however, Bagley has not shown that the use was “continuous,” as that term has developed in the decisional law. Bagley argues that the use was continuous because he has used the land since 1953 for parking and recreational activities and has cleared the land from 1953 to the present. Bagley states that continuous use can be established over a twenty year period by the aggregate of various uses even if the separate uses themselves are each for less than the twenty year requirement. The problem for Bagley is that, on the evidence I credit, he has not shown a frequency or intensity of any use of the Disputed Parcel, for recreational activities or parking, that rises to the level of “continuous.” Bagley needs to show that the Disputed Parcel was used more than occasionally and for periods of time that were not few and intermittent. See Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (stating that acts of possession which are “few, intermittent and equivocal” are insufficient to serve as a basis for adverse possession). While it is clear from the testimony that the Disputed Parcel has been continuously maintained at least to some degree every year since 1953, Trial Tr. vol. 1, 54, June 29, 2009, it is not clear how often Bagley used the area for recreational activities and parking. With nothing in the evidence that shows the frequency with which Bagley used the Disputed Parcel for these activities, I am unable to conclude that the land has been used continuously by Bagley for twenty years.

Bagley, as the plaintiff, has the burden of proof, and he has only shown that each and every year the Disputed Parcel has been consistently maintained. As for the recreational activities and parking, on the evidence which I accept, Bagley has only shown that those activities have occurred occasionally since 1953. While the uses needed to establish adverse possession do not have to be constant over a twenty year period, they must be more than sporadic and intermittent. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). The testimony only supports a conclusion that the maintenance of the Disputed Parcel has occurred continuously for the twenty year period, and this alone is insufficient to prove adverse possession. Adverse possession requires a finding of adverse activity that is more than clearing and maintaining the locus. The growing of rhubarb and fruit, clearing the land of poison ivy, mowing the grass, regularly holding picnics, installing a septic tank that required fill, grading, and seeding of the locus, using the locus for recreational activities, and incorporating the locus as part of a lawn was sufficient to establish adverse possession, see Collins v. Cabral, 348 Mass. 797 (1965), while clearing the land of brush and trees, maintaining the land, paying taxes, and placing bound pipes in the corners of the locus also established adverse possession. See Kershaw v. Zecchini, 342 Mass. 318 (1961). A further finding of adverse possession was established when the claimant cleared brush, maintained the locus, stored boats and boating equipment, parked cars, maintained a compost pile, erected a wooden sea wall, constructed a horseshoe court, a “swing and slide set,” and a duck house, and held family picnics on the locus, see Lebel v. Nelson, 29 Mass. App. Ct. 300 (1990), and when the claimant constructed a fence, planted grass and flowers, maintained the area, and placed chicken coops on the locus. Shaw v. Solari, 8 Mass. App. Ct. 151 (1979). Simply removing brush, stumps, trees, and rocks every summer to maintain a lawn, however, is not sufficient to establish adverse possession. Lyon v. Parkinson, 330 Mass. 374 (1953).

Bagley is also not entitled to be granted a parking easement for a portion of the Disputed Parcel because the testimony shows that parking occurred in the same areas as the recreational activities. Anita Durette, in her testimony, stated that exhibit 41 depicted the two areas where cars would normally park and the sandy area as the place where she would play badminton, horseshoes, and croquet. Trial Tr. vol. 1, 177-178, June 29, 2009. She described the parking areas in exhibit 41 as in front of the cottage, referencing the car parked beside the birch tree, and on the side of the cottage, referencing the car parked in the foreground. Trial Tr. vol. 1, 178, June 29, 2009. Anita Durette then stated that when there were picnics at the cottage parking would extend into the sandy area as well as onto the grass on the side of the cottage. Trial Tr. vol. 1, 180, June 29, 2009. Linda Kirk also testified that people would park all around the cottage, in front of the cottage, on the side of the cottage, and on the lawn. Trial Tr. vol. 1,51, June 29, 2009. As for the recreational activities, Linda Kirk stated she remembers playing badminton, croquet, and flashlight tag in the Disputed Parcel. Trial Tr. vol 1, 43, June 29, 2009. Badminton was played in front of the cottage between the cottage and the Gravel Way while horseshoes was in the Disputed Parcel closer to the Gravel Way. Trial Tr. vol. 1, 43, June 29, 2009. Anita Durette also testified that they would play games all around the cottage, but particularly in the Disputed Parcel. Trial Tr. vol 1, 175, June 29, 2009.

Looking at exhibit 41 and reviewing the testimony of the witnesses, it is clear that the Morash family members played horseshoes and parked cars in the sandy area. Trial Tr. vol. 1, 180, June 29, 2009. Bagley is not entitled to a parking easement because he is unable to show that the recreational activities and the parking occurred in two separate and distinct areas. An easement by prescription for parking of vehicles must be confined to a definite location, not one which wanders and floats over the entire holding of the defendant. A parking use which varies from time to time depending on other inconsistent uses going on in the area fails to meet the specificity of location requirement our decisional requires. See, eg., Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007)

For the reasons stated above, Bagley has not satisfied his burden of proving by a preponderance of the evidence the requisite elements of his claim for adverse possession. He is unable to show that the use was continuous for a period of twenty years. The evidence is insufficient to support his adverse possession claim because it is unclear from the testimony how frequently Bagley used the Disputed Parcel. When any of the elements for adverse possession are “left in doubt, the claimant cannot prevail.” Mendoca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). Thus, Bagley’s claim for adverse possession fails because he has not meet his burden of proof.

B. Prescriptive Easements

To establish a claim for a prescriptive easement, the claimant must establish each element by clear proof that “they or their predecessors have used property in which they claim a prescriptive easement ‘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.’” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) (quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007)); see also Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331 (1980); G.L. c. 187, § 2. Exclusivity, however, is not a requirement to establish a claim for a prescriptive easement. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). If the use of the easement has been unexplained for twenty years, it is presumed that the use is adverse and is “sufficient to establish title by prescription . . . unless controlled or explained.” Houghton, 71 Mass. App. Ct. at 836.

A claimant can establish a prescriptive easement in two ways: “(1) by use with knowledge on the part of the owner, whose land is used, that the person using his land claims a right to use it, or (2) by a use so open and notorious that knowledge of a claim of right will be presumed.” Id. at 836. Permission by the owner, whether express or implied, will prevent a claim for a prescriptive easement; however, acquiescence is not sufficient to prevent adverse possession. Id. Case law is not clear on what constitutes implied permission and no case explicitly defines the term. In Inhabitants of Nantucket v. Mitchell the Town of Sciasconset sought to register a strip of land claiming title through an individual named Flagg and under a deed from the “proprietors of the common and undivided lands of the Island of Nantucket.” 271 Mass. 62 , 64 (1930). The locus was held in trust for the sole purpose of “a way or footpath along the bank.” Id. Defendant claimed title of the locus through adverse possession; however, the Supreme Judicial Court determined defendant was unable to establish adverse possession because permission was inferred by plaintiffs; defendant’s acts did not hinder the trust nor prevent plaintiffs from fulfilling the purposes of the trust. Id. at 69. Adverse possession, however, can still be established where an owner of land knew of the possession of his land by another, did not prohibit such use, and tacitly agreed to the use. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964); see also Spencer v. Rabidou, 340 Mass. 91 , 93 (1959) (permission is more than acquiescence and defendants gave either express or implied permission); Kilburn v. Adams, 48 Mass. (7 Met.) 33. 39 (1843) (stating use of unenclosed lot adjacent to public building was permissive and under implied license); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008) (stating permission can be either express or implied, but upon finding no adverse use, failed to determine whether the use was expressly or impliedly permissive); BLACK’S LAW DICTIONARY 1255 (9th ed. 2009) (defining implied permission as “[p]ermission that is inferred from words or actions.”).

1. The Gravel Way

Bagley argues that he has acquired a prescriptive easement over the Gravel Way by establishing that the use was open, notorious, continuous, uninterrupted, and adverse for twenty years. Defendants argue that Bagley had “implied permission” to use the Gravel Way. Defendants, to support their theory of implied permission, point out that: the Gravel Way was used to access the properties off of Langsford Street prior to 1953, it has been used continuously by the residents since 1953 to access their properties, and Defendants have proposed part of the Gravel Way as access to the new subdivision. The access point for the new subdivision is shown on the “Definitive Subdivision ‘Flatstone Lane’ Site Plan” (“Revised Subdivision Plan”), prepared by Hancock Engineering Associates and dated November 29, 2005. As depicted on the Revised Subdivision Plan, the Gravel Way composes part of the proposed access road with both the Gravel Way and the proposed road traveling across lot 1 to the forty-foot right of way. [Note 5]

First, Bagley’s use of the Gravel Way was open and notorious. As stated above, to be considered open the “use must be without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). To be considered notorious the use must be made known to the landowner, whether directly or indirectly, so that the landowner would know the use if he or she reasonably supervised the property. Id. Actual knowledge is not required. Id. Rather, it is only necessary that the use “be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use.” Id. Furthermore, whether a use is open and notorious varies with the character of the land. Id. (quoting Tinker v. Bessel, 213 Mass. 74 , 76 (1912)).

Bagley’s use was open and notorious because Linda Kirk testified that the Gravel Way was the “only way to get into the cottage.” Trial Tr. vol. 1, 57, June 29, 2009. While access could be obtained by foot through the Seaside Cemetery to the north of Bagley’s property, the Gravel Way was the only source of access by automobile. Trial Tr. vol. 1, 57, June 29, 2009. Anita Durette also testified that her family has used the Gravel Way since 1953 and that it is the only way to access their property. Trial Tr. vol. 1, 182, 217, June 29, 2009. The Smiths, previous owners of lot 6, would use the Gravel Way to access their property as well. Trial Tr. vol.1, 217, June 29, 2009. Katherine Senn even testified that the Gravel Way was the only way to drive to Bagley’s property, Trial Tr. vol. 2, 124, June 30, 2009, and Joanne A. Sheffel stated that she had seen a car parked in front of the cottage on Bagley’s property once a year. Trial Tr. vol. 2, 171, June 30, 2009. Thus, it is clear from the testimony that Bagley’s use of the Gravel Way was open and notorious because Defendants knew it was the only way to access the subdivision by automobile, and they had seen vehicles on the Morash Property.

Second, Bagley’s use of the Gravel Way was continuous and uninterrupted for twenty years. The use does not have to be constant over the twenty year period to be considered continuous and an intermission in the use does not equal interruption, Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870); however, acts of possession that are “few, intermittent and equivocal” are insufficient to serve as a basis for adverse possession. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). Continuous use can be established through circumstantial evidence; direct evidence of actual use in each of the twenty years is not required. Id. at 319-320.

Bagley has established through witness testimony that he has used the Gravel Way since approximately 1953. Linda Kirk testified that her family had been using the Gravel Way since she was a child, and that she visited the cottage every summer at least once or twice with the exception of 1975-1978. Trial Tr. vol. 1, 36, 42, 57, June 29, 2009. Anita Durette also testified that she had been coming to the property every summer since 1964 and had used the Gravel Way for “all her life.” Trial Tr. vol. 1, 173-174, June 29, 2009. Although there is discrepancy between Linda Kirk’s and Anita Durette’s testimony as to how long the family stayed at the cottage each summer, it is clear that the family went to the cottage every summer, satisfying the twenty year requirement either through Linda Kirk, 1953-1973, or Anita Durette, 1964-1984. [Note 6] Additionally, Frederick J. Geisel testified that he believed the Gravel Way had been in existence for fifty years or more due to the wear of the Gravel Way, the position of the telephone poles on the edge of the Gravel Way, and the trees that were over fifty years old and located on either side of the Gravel Way. Trial Tr. vol. 2, 34, June 29, 2009. I find as a fact and rule that Bagley has proven that the Gravel Way was used continuously and uninterrupted for a period of twenty years.

Lastly, Bagley’s use of the Gravel Way was adverse. A use is adverse if the use is made without the consent or authorization of the landowner. See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.16 (2000). An adverse use is an action which interferes with the landowner’s property rights and can lead to causes of action for nuisance or trespass. See id. As described above, the forty-foot right of way does not completely coincide with the Gravel Way. Bagley claims an easement over the portion of the Gravel Way that crosses lot 1 and intersects with Langsford Street to the southeast and the forty-foot easement to the northwest, using the Gravel Way for ingress and egress. (Trial Tr. vol. 1, 57, 217, June 29, 2009). Driving a car across Defendants’ property to access the Morash Property is an adverse use that conflicts with an owner’s reasonable use and enjoyment of his property.

Bagley also asserts a presumption of adversity; when an easement has been used 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.” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008). The responsibility then rests on Defendants to show that the use of the easement was a result of a “license, indulgence, or special contract inconsistent with a claim of right by the other party.” White v. Chapin, 94 Mass. 516 (12 Allen), 518 (1866). Where the Defendants fail to offer evidence explaining the use or showing control over the use, the presumption of adversity remains. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964).

Defendants have not offered any evidence to show they asserted control over the Gravel Way, such as resurfacing the Gravel Way or installing curbs along its boundaries. Defendants argue that obtaining a permanent injunction against Greg Smith from entering the property exemplifies their control over their property, but preventing one person from accessing the property within a fifty year period is not sufficient. Trial Tr. vol. 1, 109, June 29, 2009.

In the alternative, Defendants attempt to rebut the presumption by arguing that the historic community use of the Gravel Way shows permission. Trial Tr. vol. 2, 102-103, 124, June 30, 2009. Defendants have shown that the Gravel Way has been used for ingress and egress continuously by the property owners on the private way since 1953. Trial Tr. vol. 2, 102-103, 124, June 30, 2009. This explanation, however, is insufficient because it does not explain how the use of the Gravel Way was not adverse. It is not a matter of how long the Gravel Way has been used, which is explained by the historical evidence, but a question of whether Defendants permitted this use or merely acquiesced. Hoffman and Coggeshall, when they sold the property in 1953 and 1954, granted each of the lot owners in the subdivision a forty foot right of way that intersects Langsford Street; however, the portion of the Gravel Way at issue is not located within the area set for that record easement. Instead, the Gravel Way crosses Defendants’ property, lot 1, before intersecting Langsford Street. Defendants have failed to explain why they would have allowed the occupants of lots 2 through 6 to forgo accessing their properties using the forty-foot right of way, over which they had legal entitlement to pass, and instead travel across the Gravel Way on lot 1, which was a continuing trespass. Defendants’ reliance on the fact that the trespass occurred is insufficient to explain that the use of the Gravel Way was permissive. Therefore, it is presumed that the use is adverse, because it has been used for twenty years unexplained and uncontrolled.

Defendants argue in the alternative that the permission to use the Gravel Way was implied. “Permission by the owner - even implied permission - negates the claimant’s ‘adversity,’ . . . .” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008); see also Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (noting that implied acquiescence is not the same as permission); Spencer v. Rabidou, 340 Mass. 91 , 93 (1959) (permission is more than acquiescence and “carries authority to do some act or a series of acts on the land of another without passing any estate in the land and in its nature is revocable.).”

Here, Defendants have failed to provide sufficient evidence to show implied permission. Defendants cite to the historical use of the property, and the City of Gloucester’s preference for the way to be located across lot 1 for traffic safety reasons, as indicative that Defendants impliedly allowed Bagley to access his property by using the Gravel Way. Historical evidence, however, only shows that the Gravel Way has been used since at least 1953 to access the properties off of Langsford Street; it does not show that Defendants permitted such use, or explain why they would permit such use. Stating that Defendants gave implied permission because the Gravel Way has always been used in this manner is conclusory and not probative of permission. Reliance merely on the historical use is insufficient to support a claim for implied permission because without further explanation, the historical use could (and does) support a claim for acquiescence. Therefore, Defendants need to characterize their actions as impliedly permitting such use while distinguishing their actions from acquiescence. They have failed to do so. That the City of Gloucester preferred access across lot 1 from Langsford Street is irrelevant, because the preliminary plan for the subdivision was not filed until 1998; the twenty year period asserted for the prescriptive easement ran from 1953-1973. I find and rule that Defendants have failed to provide adequate evidence to prove implied permission.

For the reasons stated above, Bagley has satisfied his burden of proof with respect to the Gravel Way and is to be granted a prescriptive easement over lot 1, as defined as the “gravel drive” on the Hancock Plan and as described above, for seasonal use, using the Gravel Way for ingress and egress onto the Morash Property. The Judgment that enters in this case will grant to Bagley a nonexclusive right for periodic vehicular passage over the Gravel Way. This right, of course, may well be subject to a future action seeking relocation of the route of the easement. [Note 7]

a. Defense of Laches

The equitable doctrine of laches is an affirmative defense that, if proven, prevents Bagley from asserting his prescriptive and adverse possession rights. Goldstein v. Beal, 317 Mass. 750 , 759 (1945); Westhampton Reservoir Rec. Corp. v. Hodder, 307 Mass. 288 , 290 (1940). Laches requires the Defendants to show that they have been prejudiced or placed at a disadvantage because of an unreasonable delay by Bagley in asserting his rights, Westhampton Reservoir Rec. Corp., 307 Mass. at 291; Yetman v. City of Cambridge, 7 Mass. App. Ct. 700 , 707 (1979), but the delay must exceed the statute of limitations period. Goldstein, 317 Mass. at 759. “[E]ssential elements of laches, a doctrine based upon the maxim that equity aids the vigilant and not those who slumber on their rights” are “[k]nowledge, unreasonable delay, and change of position.” Germaine v. Bleicken, 17 LCR 272 , 277 (2009) (Misc. Case. No. 287426) (Trombly, J.).

As an affirmative defense, Defendants have failed to meet their burden of proving laches. Even assuming that Bagley was on notice in 1998 when the preliminary subdivision plan was filed (“Preliminary Subdivision Plan”) and unduly delayed in filing his claims, [Note 8] Defendants fail to meet the elements for the defense of laches because they have not shown they have been prejudiced or placed at a disadvantage. I decline to address whether Bagley delayed in asserting the claims for adverse possession and prescriptive easements because I find that Defendants have failed to show they were prejudiced or placed at a disadvantage.

Three subdivision plans were admitted into evidence, which Vaclav V. Talacko testified to as having been drawn under his supervision. Trial Tr. vol. 1, 151-156, June 29, 2009. The Preliminary Subdivision Plan, titled “Preliminary Subdivision,” prepared by Hancock Engineering Associates is dated January 15, 1998, and the definitive subdivision plan, titled “Definitive Subdivision ‘Tiderock Property’ Site Plan,” prepared by Hancock Engineering Associates, is dated November 25, 1998 (“Definitive Subdivision Plan”). The Definitive Subdivision Plan was approved by the City of Gloucester Planning Board, but was appealed by Bagley. After a settlement agreement the Revised Subdivision Plan was prepared. [Note 9] Meetings were then held in 2006 seeking approval for the Revised Subdivision Plan. Trial Tr. vol. 1, 151-152, June 29, 2009. There is no further indication in the record that the Revised Subdivision Plan was ever approved, nor is there any evidence submitted by Defendants that work had begun on the subdivision. Defendants have also failed to show that they have suffered any financial loss in the development project. Furthermore, the Definitive Subdivision Plan was not approved in 1998 for reasons separate and distinct from Bagley’s claims. Thus, Defendants have not shown that they have suffered any prejudice and were placed at a disadvantage. For these reasons, Defendants are unable to assert the defense of laches.

2. The Footpaths

Bagley claims a prescriptive easement over the footpaths, described above and depicted on the Hancock Plan as existing footpaths, asserting that all of the elements for a prescriptive easement are satisfied. To acquire an easement by use, Bagley must show that the use was open, notorious, continuous, and adverse for a period of twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331 (1980); G.L. c. 187, § 2. The elements of open and notorious vary with the “character of the land.” Tinker v. Bessel, 213 Mass. 74 , 76 (1912); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). When a claimant seeks an easement to travel over a wooded lot, the claimant must “establish a use, of a degree or character, that would reasonably permit a trier of fact to infer that such a use could have been discovered by a reasonably diligent landowner standing in the shoes” of the claimant. Boothroyd, 68 Mass. App. Ct. at 45. Bagley is unable to meet his burden of proof because he has not shown that his use of the footpaths could reasonably have been discovered by the landowner.

There is a general consensus among the witnesses that it was unusual to see another person on the footpaths. Linda Kirk testified that while walking on the footpaths it was rare to see someone else, although occasionally she did see people she did not know. Trial Tr. vol. 1, 75-76, June 29, 2009. Anita Durette also testified that while walking or “rid[ing] the scooter” on the footpaths she only recalled seeing Annie Naismith. Trial Tr. vol. 1, 200, June 29, 2009. Additionally, Katherine Senn testified that while picking berries, walking, or playing “cowboys and Indians,” the only people she saw on the footpaths were the children who were playing with her and occasionally Mr. Smith. Trial Tr. vol 2, 80-81, 83, June 30, 2009. Scott F. Kerr testified that he never saw the Morashes (i.e., Linda Kirk, Anita Durette, and Katherine Senn) on the footpaths while he was using them, Trial Tr. vol. 2, 141, June 30, 2009, and Joanne A. Sheffel stated that she never saw anyone else on the footpaths either. Trial Tr. vol 2, 160, June 30, 2009.

The footpaths are also surrounded by thick woodland that makes visibility difficult. Linda Kirk testified that the area surrounding the footpaths is very dense woodland and the footpaths become overgrown. Trial Tr. vol 1, 94, 95, June 29, 2009). The testimony of Vaclav V. Talacko, Anita Durette, Katherine Senn, and Scott F. Kerr confirmed Linda Kirk’s testimony that the area around the footpaths is thick, dense woodland in the summer. Trial Tr. vol 1, 161, 211, June 29, 2009; Trial Tr. vol. 2, 90, 138, June 30, 2009). It is of course during this season when much of the claimed use of the footpaths was said to be concentrated. Referring to exhibits 45 through 48, photographs of the footpaths, Vaclav V. Talacko testified that visibility is much less in the summer and spring than is depicted in the photographs; Katherine Senn described the wooded area in the summertime as a “great deal denser.” Trial Tr. vol. 1, 161, June 29, 2009; Trial Tr. vol. 2, 92, June 30, 2009). Katherine Senn also stated that a person cannot see through the brambles and lower vegetation during the late spring and summer, and a person would be unable to walk through the vegetation and brambles unless he or she stayed on the footpaths. Trial Tr. vol.2, 92-93, June 30, 2009). Additionally, Anita Durette, referring to exhibits 45 through 49, photographs of the footpaths, testified that the foliage and brambles on the sides of the footpaths are more dense in the summer than shown in the pictures. Trial Tr. vol. 1, 211, June 30, 2009). Anita Durette also stated that she would occasionally take a “weedwacker” to the path that extends from the private way to the oceanfront to keep it clear. Trial Tr. vol. 1, 187-188, June 29, 2009. It is unclear from the testimony, however, whether Anita Durette is referring to a gas-powered string-trimmer or a “sling blade” or “kaiser blade” string-trimmer.

On the evidence I credit, I agree with Defendants that Bagley’s use of the footpaths is not open and notorious. Bagley cannot show his use was open and notorious because, given the dense woodlands, his use was not reasonably discoverable. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). Bagley argues that cutting down brush with a weedwacker to clear the footpath running from the right of way to the oceanfront constituted open and notorious use, and that the cut branches along this footpath was an obvious indication that someone was maintaining it. Here, the use of a weedwacker is not sufficient because: 1) the clearing of the path was done infrequently, Trial Tr. vol. 1, 187-188, June 29, 2009; and 2) it is uncertain from the testimony whether simply walking on the footpaths kept them clear or whether someone was intentionally clearing them. I do not find as a fact that there was ever any regular, devoted effort made to use any equipment to keep the footpaths clear of growth. Katherine Senn testified she believed the footpaths occurred naturally, (Trial Tr. vol. 2, 120, June 30, 2009), and Bagley offered no evidence that stated any of the witnesses noticed cut branches along the edges of the footpaths. From all the testimony which I accept, I find it is unlikely that a reasonable landowner would be put on notice of Bagley’s use. Accordingly, Bagley’s claim based on the family’s use of the footpaths (walking, picking berries, playing “cowboys and Indians,” and occasionally weedwacking) is not sufficient to meet the elements of open and notorious because of the topography, geography, and vegetation of the area, and the difficulty and rarity of seeing others on the footpaths.

Furthermore, Bagley’s use is not open and notorious because it does not even rise to the level of use by the plaintiff in Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44-45 (2007). In Boothroyd, the Appeals Court held that the use of the footpaths across a wooded lot by plaintiff (walking, hiking, bicycling, picking berries and asparagus, cross country skiing, and at one point clearing a new path across the wooded lot) was not sufficient to meet the requirements of open and notorious because of the character of the land. Id. at 42-43. The court stated that because the parcel of land was “thickly wooded land with dense brush that obscured large parts of it, it was incumbent upon [plaintiff] to establish a use, of a degree or character, that would reasonably permit a trier of fact to infer that such a use could have been discovered by a reasonably diligent landowner . . . .” Id. at 44-45.

Here, the footpaths are situated on a wooded lot that is similar to the character of the lot in Boothroyd, and Bagley’s use of the footpaths is not even as intensive, frequent, open or observable as that of Boothroyd; I find Bagley’s claim to be based on the family use which was less extensive. For Bagley’s use to be open and notorious he needs to demonstrate a use that is separate and distinguishable from those uses by the plaintiff in Boothroyd (walking, hiking, bicycling, picking berries and asparagus, cross country skiing, and at one point clearing a new path across the wooded lot) for his use to be open and notorious. Id. at 42-43. He has failed to carry his burden of proving this,and therefore it would be an error here to characterize Bagley’s use as open and notorious.

3. The Oceanfront

Bagley also asserts a prescriptive easement for the use of Defendants’ oceanfront property, claiming the use was open, notorious, continuous, uninterrupted, and adverse for twenty years. I cannot agree with Bagley’s contention, and find and rule that Bagley has not acquired a prescriptive easement for the oceanfront property because his use was not continuous and adverse for the twenty year period.

A leading case on prescriptive easements over beachfront property is Houghton v. Johnson. 71 Mass. App. Ct. 825 (2008). In this case, the Appeals Court relied on five “decisive and undisputed facts” in determining that plaintiffs’ arguments for a prescriptive easement failed: 1) the disputed parcel was unable to be enclosed; 2) the plaintiffs used the entire beach area, not just the disputed parcel; 3) none of the plaintiffs while using the beachfront property with defendant informed her that their use of the beachfront property was under claim of right; 4) the distinct acts by plaintiffs were infrequent and “isolated incidents”; and 5) when defendant exercised control over her property none of the plaintiffs challenged it. Houghton, 71 Mass. App. Ct. at 843. Houghton established that for a use to be adverse on unenclosed land, plaintiffs need to show a “decisive act, indicating a separate and exclusive use, under claim of right . . . open and ostensible, and distinguishable from that of others.” Id. at 841 (quoting Kilburn v. Adams, 48 Mass. (7 Met.) 33, 39 (1843)). For beachfront areas, a separate and distinct use must be different from the “customary beach and water purposes, including bathing.” Labounty v. Vickers, 352 Mass. 337 , 342 (1967); see also Ivons-Nispel Inc. v. Lowe, 347 Mass. 760 , 761 (1964) (use of beachfront property for “bathing, sun bathing, picnicking and all recreational activities for which beach property is seasonally used.”).

Bagley has failed to show with any certainty that the family members whose use he relies upon have continuously used the Defendants’ oceanfront property, known as Tiderock, since 1953. The evidence, at best, shows the use was occasional. Linda Kirk testified that only exhibit 53, a photograph of her father and stepmother by the ocean, showed them on Tiderock while exhibits 25, 26, 31, and 34, photographs depicting various family members by the ocean, showed them on the area known as “Down Front.” [Note 10] Trial Tr. vol.1, 64, 92, 114-115, June 29, 2009. Scott F. Kerr and Joanne A. Sheffel also testified that exhibit 31 depicted the rocks in front of the MacDonald and Hung properties. Trial Tr. vol. 2, 140, 161, June 30, 2009.

Linda Kirk also testified that when she was a child she would explore the entire oceanfront, from the Down Front area to the Tiderock area, describing the oceanfront as “one big huge thing.” Trial Tr. vol. 1, 66, June 29, 2009. She also stated that she would be on the Down Front rocks as frequently as she was on Tiderock, the defendant’s oceanfront area. Trial Tr. vol. 1, 89, June 29, 2009. From the testimony and exhibits in evidence which I accept, Bagley has not shown that the use of Tiderock itself, as opposed to the much broader stretch of nearby oceanfront, was frequent and continuous over a twenty year period. As most of the exhibits depict Morash family members on Down Front and not on Tiderock, the evidence, at best, shows me that they used Tiderock only occasionally. Bagley fails to show continuous use because the use of Tiderock on which he relies was infrequent.

Said another way, Bagley fails to prove continuous use because he has not shown that the family members limited their use of the oceanfront to Tiderock. In Houghton v. Johnson the Appellate Court held that one factor in denying plaintiffs a prescriptive easement over beachfront property was the plaintiffs’ use of the entire beach and not just the area in front of defendant’s property. 71 Mass. App. Ct. 825 , 843 (2008). The record here, as stated above, reflects a similar use by Bagley of the entire oceanfront area that is not limited to Tiderock. When the testimony already illustrates a sporadic use of Tiderock by Bagley’s family members, the further use of both Down Front and other neighbors’ waterfront strips defeats Bagley’s claim that there was continuous use of the area of defendants’ land over which the oceanfront right is claimed.

Additionally, Bagley has not demonstrated a use that is distinct from “customary beach and water purposes . . . .” Labounty v. Vickers, 352 Mass. 337 , 342 (1967). There is nothing in the testimony that shows any activity besides the usual beach activities: swimming, sunbathing, picnicking, exploring the rocks, and walking along the rocks. Trial Tr. vol. 1, 66, 191-193, June 29, 2009. Cf. Trial Tr. vol. 1, 82-83, June 29, 2009 (describing the activities of the public on the rocks in front of the Seaside Cemetery as including picnicking, sunbathing, fishing, and scuba diving)). As required by Houghton v. Johnson, for a use to be adverse, Bagley has to demonstrate a use that is separate and distinguishable from the use of others. 71 Mass. App. Ct. 825 , 841 (2003) (quoting Kilburn v. Adams, 48 Mass. (7 Met.) 33, 39 (1843). He has not done so. Therefore, Bagley is unable to obtain a prescriptive easement for Tiderock because he has failed to show an adverse use.

Bagley, however, argues that his use of Tiderock is adverse because his use has continued for twenty years unexplained, entitling him to the presumption of adverse use unless controlled or explained. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008). This argument fails because the easement is explained by the community-wide use of the entire oceanfront area which I find took place up and down this entire stretch of the waterfront. Unlike the Gravel Way in which Defendants simply point to the historical use without further explanation, Defendants here show that the entire neighborhood used Down Front and Tiderock, as well as waterfront land further to the north and south, because they understood it all to constitute a communal resource. Anita Durette testified that the Defendants and the Hungs never objected to her using the rocks on their property. Trial Tr. vol. 1, 193, 208-210, June 29, 2009. There is also no indication that the MacDonalds ever objected to anyone using the rocks on their property. Trial Tr. vol. 1, 92, June 29, 2009. Bagley and Defendants also used both Tiderock and Down Front frequently; Linda Kirk and Anita Durette testified that they saw Defendants Down Front, Trial Tr. vol. 1, 67, 207, June 29, 2009, and Katherine Senn stated that she uses the Down Front area. Trial Tr. vol. 2, 100, June 30, 2009. Anita Durette also testified that when she was on Tiderock she saw other neighborhood people in that area as well, Trial Tr. vol. 1, 209-210, June 29, 2009; Trial Tr. vol. 2, 101-102, June 30, 2009, while Scott F. Kerr testified that he saw everyone on Coggeshall Road and the Morashes, Naismiths, and Smiths Down Front. Trial Tr. vol. 2, 140, June 30, 2009. Lastly, Joanne A. Sheffel stated that she saw everyone from Coggeshall Road and the renters of the Smith residence Down Front. Trial Tr. vol. 2, 160, June 30, 2009. It is clear from the testimony that the broad reach oceanfront property in this vicinity was understood as a community resource that was used by the neighborhood residents.

The use here is similar to the use of the beachfront property in Houghton v. Johnson where the defendant regarded her beachfront property as a “community resource . . . for everyone’s use.” 71 Mass. App. Ct. 825 , 839 (2008) (internal quotation marks omitted). In Houghton, the Appellate Court refused to find a prescriptive easement for the beachfront property. Id. at 843. Bagley cannot rely upon a presumption that the use made by the family members of the Defendants’ waterfront is adverse, because Defendants have explained the use. Bagley is unable to obtain a prescriptive easement for Tiderock because the use on which he relies was not continuous and was not adverse.

I find and rule that Bagley has satisfied his burden of proof with respect to the Gravel Way, and is entitled to judicial recognition of a prescriptive easement for seasonal non-exclusive ingress and egress on foot and by vehicle over the Gravel Way to reach his lot. Bagley has not, however, satisfied his burden for adverse possession and the Disputed Parcel remains in Defendants’ ownership free of any rights of Bagley. Bagley has not satisfied his burden of proof as to the claimed prescriptive easements for the footpaths through the undeveloped wooded lot and for use of the oceanfront adjoining Defendants’ land known as Tiderock. This land also remains in Defendants’ ownership free of any rights of Bagley.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: January 18, 2011