This is a complaint brought by John C. Golden of Quincy, in the County of Norfolk, against Paul D. Linehan and Claire T. Linehan, also of said Quincy, in which the plaintiff alleges that he is the owner of a certain parcel of land situated in said Quincy, more specifically described in a deed recorded in the Norfolk County Registry of Deeds, Book 4491, page 551; that a deed from George R. Bascom, et ux to Leo Levine et ux, dated September 2, 1947 and recorded with said Deeds, Book 2709, page 127 created a right of way ten (10) feet in width along the westerly boundary of the land now owned by the plaintiff for a distance of sixty-five (65) feet from Bay View Avenue, to be used for the purpose of a driveway only, and that said right of way has been abandoned. The plaintiff seeks a determination to this effect by the Court. The defendants answered denying that the way had been abandoned, alleging that their attempts to use the way had led to harassment and praying that the plaintiff and his tenant [Note 1] be enjoined from parking thereon.
The case was tried on December 12, 1975. A stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purposes of any appeal.
On all the evidence I find as follows: George R. Bascom and Mildred J. Bascom, husband and wife, common owners of the premises now owned by the plaintiff and the defendants, conveyed the land in said Quincy known as and numbered 95 Bay View Avenue (now the property of the defendants) to Leo Levine and Selma Levine, husband and wife, as tenants by the entirety, by deed dated September 2, 1947 and duly recorded in Book 2709, page 127 (Exhibit No. 7). The deed also set forth the grant of an appurtenant right in the following language:
"Also, and as appurtenant thereto, a right of ten (10) feet in width across said lot number 13, as shown on said plan, along the "westerly boundary line thereof" running from said, Bay View Avenue southerly a distance of sixty-five (65) feet) to be used for the purpose of a driveway only."
There was no evidence as to the use of the driveway, if any, made by the grantees in said deed. At some time a wire fence with wooden posts ran the length of the property along the boundary between land now of the parties to this proceeding and parallel to the right of way. The wire fence was there in 1963 when 95 Bay View Avenue was purchased by one Robert Burr. This fence, or an earlier version, probably was in place as early as 1954. Mr. Burr replaced the wire fence with a stockade fence approximately six to eight feet wide in the rear of the premises. He also added the next sections which were composed of a swinging gate about three feet wide and a split rail style fence approximately on the boundary line between 95 and 97 (sometimes called 99) Bay View Avenue and leading to the street. The fence, as installed by Burr and as it existed at the trial, is accurately depicted in Exhibits Nos. 1 to 5 except that a section of the stockade fence and the gate was removed by the male defendant to afford access to his rear yard after he caused a blacktop parking area to be laid thereon. The ten foot right of way is located on the plaintiff's property and within the driveway which also serves the plaintiff's house. Within the driveway is a sidewalk shown on Exhibits Nos. 4 and 5. Some sporadic use by motor vehicle has been made in the past by prior owners of the defendants' property who apparently drove to the gate, parked momentarily in the driveway and proceeded to enter 95 Bay View Avenue through the gate. A more usual use was on foot from the street over the sidewalk and through the gate (or the reverse route). The defendants' predecessors-in-title either did not own cars or parked in the front of the house at 95 Bay View Avenue or elsewhere. So far as appears from the evidence, they never drove over the right of way, and into the yard behind the house at 95 Bay View Avenue. After the defendants purchased their home in January of 1975, the plaintiff and his tenant objected to the defendants leaving their car in the driveway while proceeding through the gate to their property. The defendants then removed a sufficient section of the fence so that they might drive from the right of way through the opening to their rear yard. The plaintiff through his attorney objected originally only to parking by the defendants in the driveway (Exhibit No. 8) which he stated was to be used "for the purposes of exit and egress to your property, only". Thereafter the contention was made that the right of way had been abandoned, and this action was brought.
Not all the deeds in the respective chains of title were introduced into evidence, but in all those submitted to the court including the deed to the plaintiff from John P. Nigro dated February 2, 1968 and duly recorded in Book 4491, page 551 (Exhibit No. 6), reference always has been made to the right of way. In Exhibit No. 6 the provisions of the deed creating the right are incorporated by reference. Until the present dispute arose the owners of the servient tenement had taken no action to prevent use of the driveway by the owners of the dominant tenement. Conversely, the latter do not appear to have exercised the rights granted to them, but neither have they taken any conclusive action to abandon them.
Mere nonuser of a way created by grant would not constitute abandonment. Desotell v. Szczygiel, 338 Mass. 153 , 158-159 (1958). Jones v. Stevens, 276 Mass. 318 , 323 (1931). "In order to have such an effect there must be an element of adverse use by the owner of the servient estate inconsistent with the continuance of the easement, or acts by the owner of the dominant estate of such conclusive and unequivocal character as manifest a present intent to relinquish the easement or such as are incompatible with its further existence". Arcisz v. Pietrowski 268 Mass. 140 , 147 (1929) quoting from Willets v. Larghaar, 212 Mass. 573 , 575 (1912). Neither an alternative right of way, Jamaica Pond Aqueduct Corporation v. Inhabitants of Brookline, 121 Mass. 3 , 4. (1876), nor the unexplained maintenance of a fence, Parlante v. Brooks, Mass. Adv. Sh. 563-564 (1973), requires a finding that the easement has been abandoned.
On all the evidence I find and rule that the deed from George R. Bascom et ux to Leo Levine et ux dated September 2, 1947 and recorded with Norfolk Deeds, Book 2709, page 127 created a right of way ten (10) feet in width as appurtenant to land of the defendants at 95 Bay View Avenue in said Quincy to be used for the purposes of a driveway only; that the premises now known as 97 or 99 Bay View Avenue in said Quincy conveyed to the plaintiff by John P. Nigro by deed dated February 2, 1968 and duly recorded in Book 4491, page 551 were subject to said right of way; that neither the plaintiff nor his predecessors in title have extinguished the right of way by adverse use thereof; that neither the defendants nor their predecessors have evidenced any intention to abandon the appurtenant easement; that the defendants' rights have not been terminated by abandonment; that the defendants do not have a right to park vehicles in the driveway; and that the plaintiff has no right to block the right of way in such a manner as to interfere with access to and egress from the defendants' premises.
[Note 1] The plaintiff does not occupy the premises; his mother-in-law presently lives there.