REG 36997

May 20, 1976

Dukes, ss.

Randall, J.


This petition was brought by Alan Rabinowitz and his wife, Andrea W. Rabinowitz, hereinafter the "petitioners", to register and confirm title to a 35.9 acre parcel of land under the provisions of G. L. c. 185, § 4. This parcel is northeasterly of Indian Hill Road in the town of West Tisbury, on Martha's Vineyard and will be referred to hereinafter as the "locus". It is shown on the filed plan.

Appearances and answers were filed by Helen S. James and Hope S. Horgan, executors under the will of Albridge C. Smith III; Katherine Graham; and the Pioneer National Title Insurance Co., all of which have subsequently been withdrawn subject to their review of the final decree before it is issued.

Appearances and answers were filed by Howard James, Vivian James, June James MacDonald, and Frank B. James, who were defaulted for failure to appear and defend on August 18, 1975. A subsequent motion to remove the default was denied by this Court on September 16, 1975.

An appearance and answers were filed by Elinor Moore Irvine, hereinafter called the "respondent", claiming an easement over the locus by grant, and this is the only issue that remains to be determined.

The case was heard on October 10, 1975, with a stenographer sworn to record and transcribe the testimony. Seven exhibits were introduced into evidence, and are incorporated herein for the purpose of any appeal. Testimony was taken from six witnesses. All references to books and pages refer to documents recorded in the Dukes County Registry of Deeds unless otherwise noted.

The sole question to be decided is whether the respondent has an easement over the premises sought to be registered. Petitioners deny that there is an easement, and in the alternative claim that even if there ever was an easement, the respondent has abandoned it. Respondent, in turn, claims that there is a granted easement and that it is still in existence.

Respondent’s clain to the easement is based upon her position as the successor in title to her father, J. Percy Moore, to whom Samuel Mingo granted a parcel of land abutting the locus, together with an easement over the locus, by a deed dated September 9, 1903, and recorded in Book 105, page 558. This deed incorporated by reference a hand-drawn plan showing a way and the plan was recorded with the deed. The right of way was described therein as follows:

“Including also a right of way across the premises of the grantor, one rod (1) in width leading from the above described premises to land of Joseph Q. Mingo at a point marked by a bar-way in the wall on the Easterly side of the barn of said Mingo, as set forth and described in a plan thereof hereto attached and made a part of this deed.”

The hand-drawn plan recorded with this deed included the following notation, among others:

“Roadway 1 rod in width to Joseph Mingo’s barn in line with the northeastern boundary of Miss Carters town lot and straight except where deflections are necessary to avoid a pond and steep grades.”

The filed plan shows a “Travelled Way” running generally northwesterly through land of Ann B. Hopkins to locus and then by the same course some 225 or more feet through the southerly portion of locus before the way turns sharply first to the northeast and then to the north into the broad section of the locus. Hollis A. Smith, a surveyor and engineer called as a witness by the respondent, drew his interpretation of the way on a copy of the filed plan which was introduced into evidence as Exhibit 4. He extended the way from the point where it turns sharply to the northeast along in the same direction to cross the southwesterly portion of the locus at a point near the lot numbered “96” on the filed plan and then along the northeasterly line of said Lot 96 northwesterly to land of respondent on the northwest. The way included a bend around a small pond shown to the southeast of the northeast corner of Lot 96. In general, this way followed the hand-drawn plan attached to the deed (Exhibit 3).

It should be noted that this deed from Samuel Q. Mingo to J. Percy Moore (Exhibit 3) was not included in the abstract filed in the case by the Land Court Examiner (Exhibit No. 2) because, as explained by petitioners’ counsel at the outset of the trial, the examiner had not felt that the way there shown crossed the locus.

On all the evidence the Court finds that the locus is subject to a right of way by grant to the respondent, Elinor Moore Irvine, and that this right of way is one rod in width as located by Hollis A. Smith on Exhibit No. 4.

Having thus found that the right of way came into being by grant and was located as set forth above, the next consideration must be an inquiry into whether it is still in existence or has been abandoned. Mere non-use of a granted right of way will not extinguish it, even though the non-use has been continued for more than twenty years; an intention to abandon the way must be shown in some maner. Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965); Crocker’s Notes on Common Forms, § 230 (R. Swaim, Ed. 1955).

There was evidence that respondent has used the way literally since her birth in 1908 to the present time and that she and her husband have jointly used it from their marriage in 1941 to date. A witness, Harold D. Rogers, drove a fire truck through the road as late as 1953. His wife, Mrs. Marjorie Rogers, testified that she rode horseback over the road many times in years past. Hollis A. Smith, the surveyor, testified that he rode his bicycle over it many times from the early 1930's to date.

The petitioners and respondent, although neighbors and fellow university professors, had not met until this trial began. The petitioners have used their premises as a summer house for some 18 years but have never seen the respondent travelling over the roads. Petitioners also testified that respondent did not contribute to the upkeep of the road. However, respondent was under no duty to do so, nor was there any evidence that she was ever asked to contribute to the upkeep of the road.

The respondent denies that the way has not been used, testifying that in fact, it was the only way to reach her camp until 1953, when she had Harold D. Rogers build another road connecting their camp with a barn also owned by her and her husband some distance to the southwest of the camp. From this barn there was access to and from another road to the west. Since 1953, respondent’s use of the way has been lessened because of this new and more convenient road from the west, but both Mr. and Mrs. Irving testified that the way has nevertheless been used by them every year. In 1974, they drove their car along the way just northeast of Lot 96 on the filed plan, and could have continued driving along the way by car, except that they did not want to spoil a large blackberry patch growing there by driving over it. They therefore got out of their car and continued on foot. Most often recently the way has been used by them as a footpath.

The Court finds on all the evidence that there has been no abandonment of the granted right of way by the respondent.

The Court grants respondent Elinor Moore Irvine’s requests for rulings numbered 1, 2 and 3.

The Court rules that the petitioners have title proper for registration the certain parcel of land as shown on the filed plan and described in Land Court Registration Petition No. 36997, subject to the granted easement one rod in width as shown on Exhibit 4 of respondent Elinor Moore Irvine. Title to land described in the petition is to be registered and confirmed, subject only to the above way and to such other matters as may be raised in the abstract that are not now in issue here.

Judgment accordingly.