This complaint, as amended, was brought to determine the plaintiff's rights in a six foot wide passageway (the passageway) located on the northeasterly side of land owned by the defendants in Revere. The plaintiff's lot, lot 74, and the defendants' lot, lot 73, are shown on a plan prepared by H. T. Whitman, Surveyor and entitled "Plan of Shirley Park, Revere, Mass." This plan is dated May, 1895 and is recorded in the Suffolk County Registry of Deeds at the end of Book 2271. [Note 1]
The plaintiff alleges that the defendants have interfered with his rights and those of his tenants to use the passageway by erecting a fence and a post, partially located on the plaintiff's land, which blocks access to said passageway from the plaintiff's backyard. The plaintiff also contends that the defendants have created an unsafe condition since there is no access to the rear of the plaintiff's house in case of fire, that the defendants have been notified on numerous occasions to stop interfering with the rights of the plaintiff over said passageway, but that they have refused to do so, and that the defendants' actions constitute a deprivation of the rights of the plaintiff and his tenants to use said passageway and that said actions are causing serious and irreparable damage to the plaintiff.
In the original complaint filed February 9, 1976, the plaintiff bases his right to use the passageway solely on a contention of an easement by grant while in amended complaints filed June 7, 1976 and June 23, 1976 respectively, the plaintiff also alleges that he and his predecessors in title acquired an easement by prescription over said passageway.
The plaintiff asks that the defendants be ordered to remove that part of the fence and post that is interfering with the plaintiff's use of the passageway and on the plaintiff's land; that the court find that the plaintiff and his predecessors in title have acquired an easement by prescription over the passageway with access to lot 74; that the defendants be ordered to allow the plaintiff sufficient access to drive and park vehicles in the rear of lot 74; that the defendants be ordered to pay the plaintiff's legal fees and expenses and for such other and further relief as the court may deem appropriate.
The defendants' answer denies that the plaintiff or his tenants have a right of passageway or easement, either by grant or prescription, over the defendants' land. The answer alleges that the fence built by the defendants lies solely on the land of the defendants, parallel to the lot line between lots 73 and 74 where, for more than twenty years prior to its accidental and temporary partial destruction, an identical fence had stood. The answer contends that the existence of this fence extinguished any easement or right of passage which the plaintiff or his predecessors in title might have had. The defendants ask that the plaintiff's complaint be dismissed, that he be ordered to pay the defendants' legal fees and expenses and for any other relief the court may deem just and meet.
A stenographer was appointed and sworn to record the testimony at the hearing. All exhibits introduced into evidence are hereby incorporated into this decision for the purposes of any appeal. The court, in the presence of counsel, took a view of the locus. The parties filed a partial stipulation or facts which sets forth the record title to lots 73 and 74 from the time of their common ownership in 1929 to the present time. Based on this stipulation and on all the evidence, the court finds the following facts.
The land owned by the plaintiff on Hichborn Street in Revere is shown as lot 74 on a plan by H. T. Whitman, dated May, 1895, recorded at the end of Book 2271 and entitled "Plan of Shirley Park, Revere, Mass." The defendants' adjacent land on said Hichborn Street, over which the plaintiff claims a six foot wide right of passageway, is shown as lot 73 on said plan and is located southeasterly of lot 74. Lot 74 (being 171-173 Hichborn Street) is a parcel containing 4,500 square feet with a frontage of 45 feet on Hichborn Street. Lot 73 (being 169 Hichborn Street) contains 4,000 square feet with frontage of 40 feet on Hichborn Street. On lot 74 there is a three story frame residential dwelling containing six apartments. On lot 73 there is a three story frame residential dwelling containing three apartments. The passageway in question is an unpaved strip of land approximately six feet wide extending from Hichborn Street to the rear of lot 73 and located between the structure on lot 73 and the property line dividing lots 73 and 74.
No evidence was introduced at the trial to establish a date when any right of passageway over lot 73 was first created by grant. In addition, there was no evidence introduced to indicate that the passageway was ever shown as such on any recorded plan. The stipulation as to record title to both lots establishes the record title in the year 1929.
In 1929 Morris Nayor owned lot 74. By deed dated and recorded on April 26, 1929 in Book 5095, Page 478, he conveyed lot 74, "together with a right of passageway six feet wide over the northeasterly side of lot 73 on said plan," to Max Zides, trustee under a deed of trust dated February 14, 1927 filed and registered as Document No. 72508 with the Suffolk Registry District of the Land Court. Max Nayor owned lot 73 in 1929. By deed dated and recorded on April 26, 1929 in Book 5095, Page 477, he conveyed lot 73 to Max Zides, trustee under the above-mentioned deed of trust. This deed does not mention any easement or right of passageway over lot 73. On the same date, Max Zides, as an individual and as trustee aforesaid, gave a mortgage recorded at Book 5109, Page 456 of several lots of land, including lots 73 and 74, to Morris Nayor. The mortgage deed refers to lot 74's six foot wide right of passageway over the northeasterly side of lot 73. This mortgage was subsequently foreclosed by foreclosure deed dated June 15, 1932 and recorded at Book 5329, Page 166. Morris Nayor purchased lots 73 and 74 at the foreclosure sale, and the deed to him refers to lot 74's right of passageway over lot 73. Morris Nayor owned both lots until his death. Pursuant to a license to sell granted by the Suffolk County Probate Court and by deed dated October 20, 1945 and recorded at Book 6182, Page 312 on October 25, 1945, the administrators of the estate of Morris Nayor conveyed lot 73 to Sarah Kagan and Louis Kagan as tenants by the entirety. No mention of an easement or right of passageway was made in this deed. By deed dated December 2, 1965 and recorded in Book 8001, Page 596, Louis Kagan conveyed lot 73 to the defendants who were the record owners thereof at the time of trial. This deed contains no reference to any passageway over lot 73.
By deed dated October 31, 1946 and recorded in Book 6279, Page 233 on November 7, 1946, the administrators and heirs of the estate of Morris Nayor conveyed lot 74 to H. Michael Hass. Although it does not specifically refer to any passageway over lot 73, the deed does state that "[s]aid premises are conveyed subject to restrictions of record, so far as the same may be in force and applicable, and with the benefit of and subject to such easements as may be in force and applicable." The deed also states that it means to convey "the same premises conveyed to Morris Nayor by deed, dated July 16, 1928, recorded with said Deeds, Book 5023, Page 292, and by foreclosure deed dated June 15, 1932, recorded with Suffolk Deeds Book 5329, Page 167."
The evidence did not establish any intervening conveyances by which H. Michael Hass and his wife Mildred Hass acquired title to lot 74. However, at some time in 1954 Mildred Hass became a joint owner of lot 74 with her husband.
Mildred Hass believed that when her husband or she and her husband owned lot 74 the passageway over lot 73 was a "community driveway," which the Hasses and their tenants had the right to use. No one ever told them that such use Was not permitted. However, Mildred Hass herself never used the passageway and, with the exception of one instance, she had no personal knowledge of any use of said passageway by her husband, their tenants, or even by their servicemen or deliverymen. Her testimony as to the use of the passageway by oil trucks when making deliveries and by other trucks which her husband used to clean up their backyard was based on surmise and speculation and not on her own personal knowledge. Although Mildred Hass never lived at 171-173 Hichborn Street, she often visited her sister-in-law, Evelyn Plotkin, who did live there. Despite these frequent visits, Mildred Hass never saw anyone park in the rear of 171-173 Hichborn Street and actually saw only one person using the passageway, a tenant washing his car. Although Evelyn Plotkin testified that she had "access" to the backyard of 171-173 Hichborn Street at all times, she did not specify that this "access" was over the passageway. The tenants at 171-173 Hichborn Street have at all times had "access" to the backyard from the other side of the house where there is a twenty-eight inch opening (the "walkway") between the house and the property line, and have also had "access" through the inside of the house. Evelyn Plotkin never drove over the passageway herself since she did not have a car, and she could not recall any specific instances of tenants of 171-173 Hichborn Street utilizing the passageway or parking in the rear. When asked whether she ever saw the owner of the property, H. Michael Hass, use the passageway as access to the backyard, she replied, "Well, I don't think he would have had the occasion to, but I figured if he wanted to, I imagine he could have."
George Morecraft was a tenant at 171-173 Hichborn Street from 1955 to 1974. During this time he parked his car on the street because a fence separating lot 73 from lot 74 prevented access by his car to the rear of lot 74. Robert Abruzzese was a tenant at 171-173 Hichborn Street from 1957 to 1964. He did not park in the rear of lot 74, nor did he ever see any of the other tenants of 171-173 Hichborn Street do so. Although Abruzzese occasionally used the passageway to load up his truck and to walk to the rear of the property," he generally approached the back entrance of the house from the walkway.
By deed dated February 9, 1966 and recorded on February 10, 1966 in Book 8019, Page 449, H. Michael Hass and Mildred Hass conveyed lot 74 to Eleanor Hogwood. By deed dated July 24, 1970 and recorded on July 27, 1970 in Book 8379, Page 565, Eleanor Bucci, formerly Eleanor Hogwood, conveyed lot 74 to Anthony Bucci and Eleanor Bucci, husband and wife, as tenants by the entirety. By deed dated November 6, 1974 and recorded on November 13, 1974, Anthony and Eleanor Bucci conveyed lot 74 to the plaintiff. None of these deeds makes any specific reference to any easement or right of passageway over lot 73.
At all material times, the Buccis believed that they had a legal right to use the passageway. Mrs. Bucci lived at 171-173 Hichborn Street from 1966 to 1968, before her marriage to the plaintiff. During this time, Mrs. Bucci would occasionally park in the rear of lot 74 when she could not find a space on the street as would her girlfriend and the plaintiff, whom she was dating at the time. The gas company used the passageway when it installed rental heaters at 171-173 Hichborn Street as did the aluminum company and the painter. However, only one of Mrs. Bucci's tenants had a car and he parked it on the street.
When Eleanor Bucci, then Eleanor Hogwood, purchased lot 74 in 1966, she understood from one of the grantors, H. Michael Hass, that one-half of the passageway would belong to her and that one-half belonged to the owner of lot 73 and that both had the legal right to use it. The president of the Winthrop Savings Bank, from which Mrs. Bucci obtained an $18,000.00 loan secured by a mortgage on lot 74, told Mrs. Bucci that she had passageway rights to the rear of her property. He examined the premises in November, 1965 and saw a cut in the curbstone for a driveway on lot 73 which appeared usable, open and unobstructed. He saw no fence obstructing the passageway. Counsel stipulated that the mortgage of lot 74 given by Eleanor Hogwood to the Winthrop Savings Bank contains a recital "together with all passageway rights of record."
Except for a period of approximately one year after a fire at 171-173 Hichborn Street, some type of fence has been located at all materials times in the rear of lot 74 along the property line separating that lot from lot 73. There was no evidence as to who constructed or owned this fence nor was there any evidence as to whether it was located on lot 73 or lot 74 or whether it straddled the boundary line of both lots. From the mid-1950's to 1971, a fence extended from the rear property line of lot 74 to a point almost parallel with the rear porch of the six family house located on said lot 74. This wire fence, about three feet high, with wooden rails and posts, was in a state of disrepair. It was partially covered with thorn bushes, the wire was rusting, and it was not entirely in an upright position. There was a three to six foot opening between the side of the house and the fence. Although one could conceivably drive a car through this opening to park in the rear of lot 74, the occupants of 171-173 Hichborn Street and their guests rarely, if ever, used the rear for parking, but rather, generally parked their cars on the street. On a few sporadic occasions, the tenants did use the passageway to load or unload vehicles, to wash their cars or to perform other such tasks. The occupants of 169 Hichborn Street, on the other hand, consistently used the passageway and parked in the rear of lot 73.
In 1968, the Buccis received a letter from the Revere Board of Health requesting that they put different types of covers on their trash barrels and suggesting that they erect a fence to keep dogs and other animals from knocking over the barrels. The Buccis tried to rectify the problem with new barrels, and finally in 1971 they repaired the above-mentioned fence and erected a gate which opened into the backyard and ran kitty-corner about eight feet from the porch of their home to a post of the fence. The fence was knocked down by firemen while fighting a fire at 171-173 Hichborn Street in August, 1974. In September, 1974, Mrs. Bucci called Mr. Hurley, a defendant, to ask his permission to use a portion of his backyard to pull a thirty yard dumpster into the backyard of 171-173 Hichborn Street to clean up the debris caused by the fire. At this time, Mrs. Bucci told Mr. Hurley that the Buccis were thinking of blacktopping their backyard and asked whether he would be interested in blacktopping the passageway which had never been paved. He told her to obtain an estimate of the cost of such blacktopping. In April, 1975, Mrs. Bucci again called Mr. Hurley and informed him that blacktopping the passageway would cost approximately $700.00. Mr. Hurley stated that he thought the Buccis should assume the whole cost of this blacktopping. When Mrs. Bucci stated that she would pay for no more than one-half, Mr. Hurley replied, "Well, if you don't pay for it, you won't use it."
During the summer of 1975, Mr. Hurley erected a new chain link fence, which is somewhat taller and longer than the previous one, in substantially the same location as the one removed by the firemen. However, this fence bows so that at mid-point it extends over the Buccis' property line as much as two inches. A cement post also extends two and one-half to three inches onto lot 74, but the evidence does not establish who constructed this post. Although there is a six foot opening between this fence and the rear of the six family house located on lot 74, the fence obstructs access by any vehicles from the passageway onto the rear of lot 74. Such access would be obstructed even if the fence were moved so that it was entirely on Mr. Hurley's property. The chain link fence constructed by the plaintiff in the front portion of lot 74 is approximately one foot, nine inches to two feet, three inches from the property line. The granite curbs which were recessed for access to the passageway are approximately fifty years old.
In his amended complaint, at trial and in his brief, the plaintiff has, in effect, conceded that any easement by grant created for the benefit of lot 74 over a six foot wide portion of lot 73, the passageway, was extinguished by the merger of the two lots into the common ownership of Morris Nayor in 1932. Krinsky v. Hoffman, 326 Mass. 683 , 687 (1951). During the common ownership of the two parcels, there could be no easement in favor of one lot operating as a burden on the other. Goldstein v. Beal, 317 Mass. 750 , 754 (1945). If any easement by grant or by implication came into existence after this merger, it could only have been when there was a severance of the common ownership of the lots by the administrators of Nayor's estate. Krinsky, supra. In 1945, said administrators conveyed lot 73 to Sarah and Louis Kagan as tenants by the entirety and in 1946 the administrators conveyed lot 74 to H. Michael Hass. Neither deed created or reserved any easements or rights of passageway. The latter deed does state that "[s]aid premises are conveyed ... subject to such easements as may be in force and applicable." However, this indefinite reference is not sufficient to recreate a former easement which had been extinguished and which "was no longer "in force and applicable." G. L. c. 184, § 25.
The court recognizes the familiar principle of law "that the owner of land may make use of one part of his land for the benefit of another part in such a way that upon a severance of the title an easement, which is not expressed in the deed, may arise which corresponds to the use which was previously made of the land while it was under common ownership." Joyce v. Devaney, 322 Mass. 544 , 549 (1948). The origin of such an implied easement, whether by grant or by reservation, "must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Dale v. Bedal, 305 Mass. 102 , 103 (1940); Labounty v. Vickers, 352 Mass. 337 , 344 (1967).
The plaintiff has failed to introduce any evidence that the common owner, Morris Nayor, used the passageway on lot 73 for the benefit of lot 74, that such use was reasonably necessary for the enjoyment of lot 74, that the physical condition of lots 73 and 74 warrant an inference that the passageway on lot 73 was, in fact, used for the benefit of lot 74, that the administrators of Nayor's estate intended to create or reserve any easements with respect to lots 73 and 74 or that, when the Kagans received their deed to lot 73 from the administrators of Nayor's estate, they intended that a portion of their property be used for the benefit of lot 74. The fact that the passageway and edges tone curb may have been on lot 73 for fifty years provides no support for the plaintiff's contention that they were there for the benefit of lot 74. The court notes that this is not a case in which use of a passageway is necessary for access to a garage in the rear of the plaintiffs lot. Although it appears that the plaintiff now wishes to blacktop the rear of his lot for parking purposes, the court has found that previously the rear was not customarily used for parking. The court, therefore, finds and rules that the plaintiff has failed to sustain his burden of proving an easement by implication over lot 73 for the benefit of lot 74. Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951).
The court must next consider the plaintiff's claim that he and his predecessors in title have acquired an easement by prescription over the passageway. Such an easement can be obtained only if the party so claiming can establish "uninterrupted, open, notorious and adverse use for twenty years over the land of the defendant." Ryan v. Stavros, 348 Mass. 251 ,263 (1964). G. L. c. 187, § 2. The plaintiff's burden of proof extends to all of the necessary elements of prescription and, if even one of these elements is left in doubt" he cannot prevail. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968).
In his amended complaint filed June 7, 1976, the plaintiff alleged that as of that date he and the predecessors in the chain of title to lots 73 and 74 had for more than twenty years a right of passageway six feet wide over the northeasterly side of lot 73 and that he and his predecessors in the chain of title had acquired an easement by prescription and right of passageway six feet wide over the northeasterly side of lot 73. The plaintiff, therefore, had the burden of proving prescriptive use of the passageway located on lot 73 by the owners or lot 74 from June 7, 1956 to and including June 7, 1976. Since the plaintiff did not acquire title to lot 74 in his own name until 1974, he must tack on the use not only of his wife Eleanor Bucci, who acquired title to lot 74 in 1966, but also of her predecessors in title, the Hasses.
Although Mildred Hass testified that the passageway was a "common driveway," she could recall only one occasion on which an occupant of 171-173 Hichborn Street actually used said passageway. The testimony of various tenants who occupied both 169 and 171-173 Hichborn Street for varying periods of time between 1947 and 1974 indicated that the rear or lot 74 was rarely, if ever, used for parking, that the rear of lot 73 was consistently used for parking, and that the passageway over lot 73 was used only sporadically by the tenants of 171-173 Hichborn Street for such purposes as delivering goods or washing cars.
Although both the Hasses and the Buccis believed that they had the legal right to use the passageway, such belief is not enough to establish an easement by prescription. The facts found by the court clearly indicate that neither the Hasses nor their tenants used the passageway in the open and notorious fashion required by G. L. c. 187, § 2 to put the defendants or their predecessors in title on notice of the nonpermissive use. See Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961). The purpose of this notice is to enable the defendants to take the necessary steps to vindicate their rights by legal action. See Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). Since such use by the Hasses was necessary to establish the twenty year period, the court need not determine whether the Buccis' use of the property was sufficiently adverse, continuous and notorious to establish an easement by prescription.
The plaintiff had the burden of proving that he and his predecessors in title used the passageway uninterruptedly, openly, notoriously and adversely for twenty years. The court finds and rules that the plaintiff has failed to sustain his burden of proving any of these elements and that he, therefore, has failed to sustain his burden of proving that he and his predecessors in title acquired an easement by prescription over the passageway.
Finally, the plaintiff has sought removal of that part of the fence and the cement post which interferes with his use of the passageway and which is on his land. Since the court has ruled that the plaintiff has no rights in and over the passageway, he is not entitled to the removal of that part of the fence and post which interferes with his use of said passageway. The plaintiff is, however, entitled to the removal of any portion of the fence and post which the defendants have erected on his land. Although the court has found that the cement post straddles the property line between lots 73 and 74 and that it encroaches two and one-half to three inches on the plaintiff's land, no evidence was introduced indicating who constructed the post thereby causing the encroachment on both lots. The court, therefore, cannot order its removal.
On the other hand, the court has found that in the summer of 1975 the defendant Hurley erected a five foot high chain link fence which bows so that at mid-point it extends over the plaintiff's property line as much as two inches. The court acknowledges that the Supreme Judicial Court has, on occasion, refused to order the removal of an encroachment under the de minimis principle when the expense and trouble occasioned by removal of the encroachment would substantially outweigh the harm caused by that encroachment. Triulzi v. Costa, 296 Mass. 24 , 28 (1936); Tramonte v. Colarusso, 256 Mass. 299 (1926). These cases arise where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable." Peters v. Archambault, 361 Mass. 91 , 93 (1972). In these exceptional cases, the plaintiff has been left to his remedy of damages. Ottavia v. Savarese, 338 Mass. 330 , 336 (1959).
No evidence was introduced indicating the cost of removing the encroachment of the chain link fence and the court, therefore, cannot find that this cost would be disproportionate to the harm suffered by the plaintiff. In addition, there was no evidence indicating that the encroachment of the fence was made innocently or that an injunction would be oppressive and inequitable. The two inch protrusion of the fence erected by the defendant Hurley constitutes a trespass and the plaintiff is entitled to have it removed. Goldstein v. Beal, 317 Mass. 750 , 757 (1945). The court, therefore, orders the defendant Hurley to remove that portion of the fence which encroaches on the plaintiff's lot 74.
In conclusion, the court finds and rules that the plaintiff has established no rights in or over the passageway, by grant, by implication or by prescription, but that he is entitled to an injunction ordering the defendant Hurley to remove that portion of the fence which protrudes onto lot 74.
Judgment to enter accordingly.
[Note 1] Unless otherwise noted, all deeds and instruments referred to herein as recorded are recorded in the Suffolk County Registry of Deeds.