ALICE C. WOODBURY by her guardian Sumner L. Raymond vs. ROBERT W. WELCH, ROBERT F. CUMMINGS, GLADYS E. BLENKHORN, ROBERT DESCHENE, LUCILLE A. DESCHENE

This case was filed in the Land Court on February 4, 1976, by the petitioner to register and confirm title to a certain parcel of land located in Salem, Essex County, Massachusetts (locus) as shown on Land Court Plan No. 39106A. [Note 1] The petitioner claimed the following right of way as appurtenant to the locus:

Beginning at the Northeast corner thereof by land of the Petitioner and of said Jonadomist Trust thence running Southeasterly by land of said Trust 112.47 to Bridge Street; thence turning and running Southwesterly by said Bridge street 12.00 feet to land of Gladys E. Blenkhorn; thence turning and running Northwesterly by land of said Blenkhorn 112.47 feet to a point; thence turning and running Northeasterly by land of said Petitioner 12 feet to the point of beginning.

Each of the above named respondents answered, alleging that that right of way has been forfeited, extinguished, terminated, and released by acts of the petitioner; that the right of way has not been used and in fact has been blocked by trees and brush; and that it has been impassable for more than fifty years.

An answer was also filed by Jossef and Linda Dinisman alleging that the easterly and northerly boundaries shown on the petitioner's plan were erroneous. Prior to trial, however, Mr. Dinisman informed the Court that he and his wife had reached an agreement with the petitioner regarding the correct location of these boundaries so that neither Mr. nor Mrs. Dinisman participated further in the case.

Trial was held on February 9 and 10, 1977, with a stenographer duly sworn to transcribe the proceedings. Eleven exhibits were introduced into evidence on behalf of the petitioner, including the title abstract (Exhibit Nos. 3A-MM) and filed plan (Exhibit No. 1). One exhibit was introduced by respondent Blenkhorn, and two by the respondent Trustees. Three witnesses, including the petitioner's title examiner, testified. On April 7, 1977, the Court viewed the locus. All exhibits and transcripts are incorporated herein for the purpose of any appeal.

The Court here points out that the petitioner did not claim a right of way by prescription in her petition. She did, however, introduce evidence of use to rebut the respondents' claim that the granted right of way had been extinguished or abandoned. At one point in the proceedings the petitioner's counsel waived any claim to a right of way by prescription; upon reflection and after a break in the trial, he disaffirmed his waiver. (Tr. II: 25) Therefore, the Court will allow the petitioner to amend her petition to include a claim to a right of way by prescription and will proceed with this decision upon the premise that such an amendment will be made within thirty (30) days of the date hereof.

The Court also notes that the respondents did not contend in their answers that the petitioner does not have a granted right of way nor was this argued at the trial; they answered only that any right of way had been extinguished by abandonment or otherwise. In their briefs and at the trial, however, they argued that there was in fact no granted right of way and the Court therefore will also consider that issue.

The first question to be decided is whether the petitioner in fact has a right of way by grant over the passageway as shown on the filed plan.

After reviewing the abstract of title, introduced into evidence sheet by sheet at the trial, and based all the evidence presented, the Court finds the following to be the pertinent facts:

1. The earliest reference of record to the right of way claimed by the petitioner is in a deed dated April 1, 1844, and recorded in Book 342, page 267 (Exhibit No. 3G) [Note 2] from Aaron Kehew, Jr. to Nathaniel Griffin of parcels I and II, as shown on the sketch Chalk A, Exhibit No. 3Z (Sheet 9 of the abstract of title) and on the decision plan. [Note 3] This deed conveyed:

"an undivided half of a way twelve (12) feet wide which is to be kept open and unobstructed for the joint use of the two estates adjoining said way."

The two estates "adjoining said way" consisted of the land conveyed to Griffin and designated as parcels I and II to the southwest of the way and the land retained by Kehew - parcel III to the east and parcel IV to the northwest of the way. These two estates are also shown on an atlas of Salem entitled "Atlas-City of Salem, 1874" published by G. H. Hopkins & CO., Philadelphia, Pennsylvania. (Exhibit No.6)

2. Parcel I then passed from Nathaniel Griffin by mesne conveyances to respondent Blenkhorn. (Exhibit Nos. 3H, 3J, 3K, 3L, 3M, and 3N) All the deeds in the Blenkhorn chain of title provided that the premises were conveyed "with all rights and privileges therefor (or thereto) belonging."

3. Parcel II likewise passed by mesne conveyances from Nathaniel Griffin to the Trustees of Jonadomist Trust. (Exhibit Nos. 3I, 3"O", 3P, 3Q, 3R, 3S and 3T) The first conveyance of parcel II, from Nathaniel Griffin to Theodore Brown, (Exhibit No. 3I) carried with it "the privileges of the way for all purposes of passing to and from said lot jointly with other estates bound by the same" and specified that the way was not to be obstructed or occupied. This right was not negated in any subsequent conveyance, and has therefore passed with the property. (G. L. c. 183, §15, inserted by St. 1912, c. 502, §21) [Note 4]

4. Parcel III also came to the Trustees of the Jonadomist Trust by mesne conveyances. These can be traced back to Aaron Kehew, Jr. In all of these deeds the premises were described as being subject to a right of way described in the conveyance from Aaron Kehew, Jr. to Nathaniel Griffin - Exhibit No. 3G. (Exhibit Nos. 3V, 3W, 3X, 3Y, 4, 5, 6, 7, 8, 9, 10, 11)

5. Parcel W3, which includes the southwesterly portion of the locus sought to be registered and shown as parcel IV on the decision plan, was conveyed to Ezra L. Woodbury by deed of Louisa J. Fitzgerald dated December 1, 1915, and recorded in Book 2315, page 140. (Exhibit No. 3E) The first course of this deed ran

"SOUTHWESTERLY by a passageway (conveyed in Deed of Aaron Kehew to Nathaniel Griffin, dated April 1, 1844) and recorded in Essex South District Registry of Deeds, Book 342, leef 267) to land of George Richard about thirteen (13) feet."

Again, there was no statement in this deed to prohibit the operation of G. L. c. 183, §15, inserted by St. 1912, c. 502, §21. This deed also included the following reservation:

"reserving, however, to myself and my heirs and assigns a right of way for all purposes twelve feet in width extending on the SOUTHWESTERLY side of said last stated line, being 43.75 feet long and 12 feet wide and being a continuation of the first mentioned way leading from Bridge Street."

The effect of this was to reserve a right of way to the grantor over parcel IV as shown on the decision plan extending southeasterly from the northwest corner of parcel III 43.75 feet to the "way". The locus remains subject to this reservation.

6. Parcel W2 was conveyed to Ezra L. Woodbury by deed of Frederick Lamson, dated November 7, 1901, and recorded in Book 1659, page 393. (Exhibit No. 3B)

7. After Ezra Woodbury's death in 1935 (Exhibit No. 3GG) title to parcels W1, W2 and IV passed to Alice C. Woodbury and her sister Mary Hale Woodbury. After the latter's death in 1959, title rested solely in Alice C. Woodbury. (Exhibit No. 3HH)

8. On February 13, 1970, Sumner L. Raymond was appointed as guardian of Alice C. Woodbury (Exhibit No. 3II) and on September 10, 1970, under a license to sell duly granted by the Probate Court, he conveyed parcel W1 and a portion of parcel W2 to the southwest of W1 Antoinette M. Cerra. (Exhibit No. 3JJ) Thus the locus outlined in gold as shown on the decision plan was left in the petitioner.

The Court finds and rules on all the evidence that, since there is nothing contrary stated in any deed in the chain of title to parcel IV, a part of parcel W3, from Louisa Fitzgerald to the petitioner, there is an easement over the way as shown on the filed plan and on the decision plan appurtenant to that part of the locus shown as parcel IV and outlined in red on the decision plan. The Court further finds and rules that there is no appurtenant easement by grant over that way for the benefit of the remainder of the locus shown as a portion of parcel W2 on the decision plan and outlined in blue, since its title does not stem from either of the two estates specified in the original grant or easement from Aaron Kehew, Jr. to Nathaniel Griffin. In addition, the Court finds and rules that there is no easement or right in the remainder of the locus to cross or otherwise use that portion of the locus outlined in red (including part of parcel IV) to reach the way. To find otherwise, the Court would have to enlarge and extend the easement to land beyond that to which the easement is appurtenant; to so find clearly would overburden the easement. Randall v. Grant, 210 Mass. 302 , 304 (1911). See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679 (1965) Brassard v. Flynn, 352 Mass. 185 , 190 (1967).

The second question to be decided is whether the petitioner has acquired a right of way by prescription.

The Court finds the following to be the pertinent facts:

1. Alice Woodbury's family and neighbors have used the way for access to these parcels - W1, W2 and IV. (The Court again points out that parcel IV is the only parcel to which the way is appurtenant.) The way was used for a number of purposes: to lead horses into and out of the property during the 1930's and for gardening; by children to reach Bridge street from the Woodbury house when visiting; by the petitioner's guardian to drive his car onto the locus, and later to remove 18 truckloads of trash and debris dumped on the locus by certain neighbors; and by others for parking on the locus when visiting the Woodburys. (See Tr. I: 42-54; II: 65-72.)

2. There was never any interference with the use of the way by the Woodburys until sometime in 1974 when a granite slab eight feet by four feet was placed over the way at a point opposite the northwest corner of parcel III. (Tr. I: 49-50) The Court observed on the view that the way was clearly discernible although somewhat overgrown with high grass; that the granite curbstone, while a hindrance to anybody trying to pass over the way other than on foot, did not in fact otherwise block the way; that there was an eight foot wire fence along the northeast side of parcel IV and that at the northwest corner of parcel W3 along the southwest line of the locus was a wooden fence of the same height; there was no fence blocking the way into the locus.

On all the evidence the Court finds that Alice C. Woodbury, her family and friends have made use of the way from at least 1904 on in an open, notorious manner, never having been interfered with until the granite slab was placed across it in 1974, and always claiming a right to use the way. Therefore, the Court rules that the petitioner has established a right of way by prescription over the way. See Ryan v. Stavros, 348 Mass. 251 (1965).

The third question to be decided is whether the respondents are correct in their allegation that that right of way has been forfeited, extinguished, terminated and released by the acts of the petitioner rendering its use impossible and that the right of way has been blocked and not used for over fifty years and in fact is impassable.

It is well established that an easement, once acquired, can be extinguished only by "grant, release, abandonment, estoppel or prescription." Delconte v. Salloum, 336 Mass. 184 , 188 (1957). There was no evidence of a grant or release or estoppel here and the Court finds that there was none.

Abandonment of an easement, whether acquired by grant or prescription, is clearly a question of intention; mere non-user will not suffice. Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 3 , 4 (1876). It must be shown by acts "indicating an intention never again to make use of the easement in question." Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). While in the case of easement acquired by prescription, non-user may provide evidence of that intention, in cases like the one presently before the Court, "abandonment is not to be inferred from mere non-user." Boston Elevated Ry. Co. v. Commonwealth, 310 Mass. 528 , 571 (1942) and cases cited therein. In a 1958 case very similar to the one presently before the Court, Desotell v. Szczygiel, 338 Mass. 153 (1958), the defendant Szczygiel denied that an easement existed across her property benefitting the two parcels to its north. All that was relied on "to show abandonment (was) non-use for many years by the (owners of the property located northerly of the Szczygiel property) and their predecessors, coupled with their failure to clear the right of way of its natural cover of trees and brush." Id., p. 159. The Court there ruled that "this falls far short of establishing abandonment." Id. While it is true that in this case there has been something more - placement of a granite block across the way in 1974 - it is not enough to keep the easement from being passable, or to warrant a finding that the easement has been abandoned. The Court finds on all the evidence that there was no abandonment here. The Court likewise finds on all the evidence that there has been no such interference with the use of the way to extinguish the easement by prescription. See Jamaica Pond Aqueduct Corp. v. Chandler, supra.

Therefore, the Court rules that petitioner Alice C. Woodbury has established good and registerable title to the locus and over the easement as shown on Land Court Plan No. 39l06A. The Court further rules that the locus as shown is subject to the rights of the owner or owners of parcel III to pass over so much of the locus as is included in the reservation of a right of way for all purposes twelve feet in width and 43.75 feet long, being the northwesterly continuation of the way shown on the decision plan.

The Court orders that the petition for registration, if amended, proceed in conformity with the findings or this decision, subject only to such other matters not in issue herein as are disclosed by the abstract or title.

Decree accordingly.

Decision Plan Land in Salem