DONALD M. FISHER, et al vs. CORA M. ABBOTT.

This is a complaint brought under the provisions of G. L., c. 185, § 1(k) and c. 231A, § 1, by plaintiffs who ask that the court establish an easement by prescription or, alternatively, determine that a public way exists, over a part of the land of defendant. Additionally, plaintiffs seek to enjoin defendant from interfering with their use of the way.

Plaintiffs allege that they own, as joint tenants, a certain parcel of land situated in West Tisbury, County of Dukes; that defendant owns a contiguous parcel of land; that the most reasonable means of access to plaintiffs' premises has been over a road that crosses the land of the defendant; that plaintiffs and all their predecessors in title dating back to 1751 have made adverse, continuous, open and notorious use of that road; that by such use an easement by prescription appurtenant to plaintiffs' property has been created; that on June 19, 1969, plaintiffs discovered posted on the road a "notice to prevent easement" signed by defendant; that sometime in 1974 the defendant caused to be dug a trench across the road, thereby preventing passage along it; and that, as a result of these acts, plaintiffs have been denied their rightful use of the road. Plaintiffs also claim that the road is a public way, and has been such since it was allegedly established by the Proprietors of the Town of West Tisbury in 1751.

Plaintiffs ask that the court declare either that the road has become a public way, or that the plaintiffs have acquired an easement by prescription for the use of the road. [Note 1] Plaintiffs also ask the court to issue a permanent injunction preventing defendant from interfering with the use of the road by plaintiffs and their tenants, licensees and invitees. Finally, plaintiffs under G. L. c. 187, § 4, seek allowance of their full costs incurred in this action.

In her answer, defendant denied that the road is a public way, and that either the plaintiffs or their predecessors in title made adverse, continuous, open and notorious use of it. Defendant alleged that plaintiffs' passage over her land was done in accordance with a written agreement between plaintiffs' and defendant's predecessors in title dated January 2, 1938, which purports to permit trespassing by plaintiffs' predecessors over the land for a fee of one dollar per year. Finally, defendant requests that the court permanently enjoin any further trespassing by plaintiffs across her land.

A trial was held in this court with a stenographer sworn to record the testimony. The court in the presence of counsel viewed the land owned by the parties and the surrounding area in West Tisbury. All exhibits introduced into evidence are hereby incorporated into this decision for the purposes of any appeal.

On all the evidence, the court finds the following facts. The portion of defendant's land through which the road passes consists of an approximately 40 acre tract located in West Tisbury on Martha's Vineyard Island. The parcel extends northward from Lambert's Cove Road, a public way, to Vineyard Sound. The land has belonged to various members of defendant's family for more than one hundred years. In the defendant's chain of title going back to 1855 there is no record reservation or grant of easement or right of way to any person over defendant's land. Plaintiffs have no record appurtenant right of way over defendant's land in their chain of title. Although the evidence is unclear, it appears that defendant's mother, Mrs. Alice Look, devised the land to her three daughters as joint tenants; that one daughter died, and another conveyed her interest to the third daughter, the defendant, Cora M. Abbott, by a deed dated September 7, 1971, recorded in Dukes County Registry of Deeds, Book 292, Page 45. The road itself runs northward from Lambert's Cove Road through defendant's land for approximately 500 feet and then branches out in two directions, forming a "y" shape. The left branch curves to the northwest and leads ultimately to Look's Beach, which borders Vineyard Sound. The right branch extends an additional 600 feet through defendant's land until it reaches plaintiffs' property and, together with the segment connecting it with Lambert's Cove Road, is the subject of this dispute. The road runs the length of plaintiffs' land from west to east, passing to within a few feet of their house. After emerging from plaintiffs' land on its eastern side, the road continues for 600 feet through land owned by others until it intersects with another road, referred to on maps and at trial alternately as Main Access Road and Capawock Road Way. Main Access Road was constructed in approximately 1948 when Thomas Neelon began to develop residentially his surrounding land. The road could be reached from the Fisher house only on foot or horseback by the 600 foot extension of the disputed way, which extension was at the time only three feet in width. The extension had been cleared of brush by plaintiffs' grandfather, but was not wide enough for passage by automobile until power lines were erected in the late 1960's. Plaintiffs used it infrequently even after that time, using instead that section which passes through defendant's land and leads directly to Lambert's Cove Road.

The portion of the road that extends from Lambert's Cove Road to plaintiffs' house is essentially a dirt road approximately eight to ten feet in width with visible parallel ruts evidencing that it has been used for vehicle passage. The condition of the road has changed very little in the past 50 years. The ruins of a gate lie across the road near the boundary between plaintiffs' and defendant's land. The gate has not been used since approximately 1938, and was used prior to that time only to prevent cows from the nearby farm of Ernest Norton from straying onto the Look property. A second gate stands on the road near its intersection with Lambert's Cove Road. This gate was once used to prevent animals formerly kept on the property from wandering away. There is no evidence that the gate has ever been locked, and one witness who has used the road testified that, when the gate was closed, he simply opened it to enter and closed it behind him. There is no evidence of any other impediment existing along the road except for a ditch defendant caused to be constructed in 1974 to impede passage. The only other man-made object along the road was a sign placed by an unknown party at the point where the road splits into two branches; the sign indicated that the left branch led to Look's Beach.

Plaintiffs, who are brothers, own an approximately 3.8 acre parcel of land adjacent to that of defendant. Their predecessor in title was their father, Fred Fisher, Sr., who leased the property for several summers before purchasing it in 1924. Mr. Fisher, usually accompanied by his wife and children, occupied the premises every summer from 1924 until his death in 1954. Except for occasional weekend trips to the house during late spring and early fall, the property was unoccupied the remainder of the year. Shortly before his death, Mr. Fisher and his second wife conveyed the property to plaintiffs as joint tenants. After using the house themselves for several summers thereafter, plaintiffs began to lease it to others, a practice that has continued each summer up to the time of trial. Thus, the house has been occupied by either plaintiffs, their father, or their tenants every summer apparently without exception from 1924 to 1975.

Since 1930, the disputed road has been the Fisher family's exclusive access by foot and vehicle to Lambert's Cove Road, which leads to Vineyard Haven Road, one of the major arteries on the island. In fact it appears that the disputed road was the only access possible from the Fisher property to Lambert's Cove Road until as late as 1968 by vehicle. The disputed road was the route used by people visiting or making deliveries to the Fishers, and by at least one guest of Ernest Norton, a neighbor. There is no evidence that its use was ever specifically discussed by the Fisher and Norton families.

Two witnesses called by plaintiffs gave testimony about the use of the road by the public. The first was Hollis Smith, who had surveyed land in the vicinity of the road for private estates, and who had also prepared several assessors' maps for the Town of West Tisbury. On one of the maps [Note 2] he had plotted the way and marked it as Old Lambert's Cove Road. In making this determination, he relied on four sources: an 1844 United states Coastal Survey Map; a 1972 United States Department of the Interior Geological Survey Map; and conversations with two presently deceased residents of the island. These maps do establish that the way has existed for at least one hundred years, and it appears that the residents accurately identified it by its traditional name, Old Lambert's Cove Road. [Note 3] A second witness, Norman Benson, who had lived on the island for seventy years and was familiar with the road, testified that he had used it from about the time he arrived on the island to reach Look's Beach and to visit the Norton and Fisher families. He also testified that he had been "led to believe all my life since living up here that that was a right-of-way." However, much of Mr. Benson's testimony related to his use of that portion of road which branched off from Old Lambert's Cove Road to Look's Beach. This route includes only a portion of the public way alleged by plaintiffs, and thus has little relevance to this case. Although he did testify that he used Old Lambert's Cove Road to visit the Fisher and Norton families, he admitted that he did not do so more than a dozen times per year, and that these visits were usually confined to the summer months. Significantly, he conceded that he did not know of any other person who used Old Lambert's Cove Road, aside from Ernest Norton's son, on his way to school.

Relations between the Fisher and Look families were generally amicable. Plaintiffs, as children, were permitted by the Looks to use their private beach and were allowed to cross the Look property to reach it. Mr. Look sold Fred Fisher, Sr. a small parcel of land on the opposite side of Lambert's Cove Road, upon which parcel one of the plaintiffs eventually constructed a house. In 1936, Mr. Fisher, Sr. constructed a small raft that was grounded on Look's Beach. In the summer of 1938, the Fisher and Look families jointly constructed on the beach a bath house, which was available for the use of both families and their guests. This bath house was destroyed later that same summer by a hurricane, and was rebuilt by the Fishers in 1939. The only written reference to the use by the Fishers of any of the Look's land is found in the following agreement:

Needham, Mass. January 2, 1938

TO WHOM IT MAY CONCERN:

For the right to trespass for his family and guests over the property of Alice L. Look of Lambert's Cove in the town of West Tisbury, Massachusetts, the undersigned releases Alice L. Look of any liability caused by or from the use of the trespass privilege for his family and guests.

In Consideration of the above right of trespass, I agree to pay to Alice M.Look the sum of One Dollar ($1.00) per year.

Signed____Fred S. Fisher Signed____Alice L. Look

The above agreement may be revoked at any time by Alice L. Look.

F. S. Fisher

All of the signatures and the provision for revocation were hand- written; the remainder of the agreement was typewritten.

There is no evidence to show whether payment had been made by Mr. Fisher under the agreement. It is clear that, after the death of Mr. Fisher in 1954, no payment was demanded of his sons either by Mrs. Look or any of her daughters until 1969, when defendant passed a note to plaintiff Donald Fisher in church demanding a dollar for the use of the road. On May 18, 1969, defendant and her co-owner gave public notice under G. L. c. 187, § 3 of their intent to prevent acquisition of an easement for travel over their land. This notice was recorded in the Dukes County Registry of Deeds, Book 287, Page 160, on June 23, 1969. Defendant subsequently warned plaintiffs' tenants not to use the road across their land, but plaintiffs assured them such travel was permissible. In 1974, defendant caused a trench to be dug across the road at a point near the land of plaintiffs, thereby precluding any further use of the road by them.

HAS THE DISPUTED ROAD BECOME A PUBLIC WAY BY PRESCRIPTION?

It has long been held that a public way may be established by prescription. Stedman v. Inhabitants of Southbridge, 17 Pick. 162 (1835); Valentine v. Boston, 22 Pick. 75 (1839). As with private easements, one must show adverse use of the land which has continued for more than twenty years under a claim of right with the acquiescence of the owner or predecessors in title. Harvey v. Sandwich, 256 Mass. 379 (1926); Sprow v. Boston & Albany Railroad, 163 Mass. 330 (1895). However, unlike a private easement, it is the public generally which must use the road, not successive owners of a particular piece of land. Cf. Commonwealth v. Coupe, 128 Mass. 63 (1880). The critical element in proving a public way by prescription is a showing that the use was adverse or as of right, as opposed to one which is permitted. McCreary v. Boston & Maine Railroad, 153 Mass. 300 (1891). If the public merely takes advantage of an open private way without claiming it as a matter of right, the use will not be considered adverse. Aikens v. New York, New Haven & Hartford Railroad, 188 Mass. 547 (1905). In Sprow v. Boston & Albany Railroad, 163 Mass. 330 (1895), the Court stated:

"[T]he fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on ... from a use which is merely casual, or incidental, or permissive. The amount, character, and duration of the use of a way by persons who had no lawful right to use it may have been such as to tend to show that such use was under the belief that the way was public." Id. at 340.

If public use of the way is "sparse and spotty," a public way will not be found. Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 (1969).

The evidence does indicate that the disputed way is very old and was known by the public by a single name, Old Lambert's Cove Road. However, a roadway may be widely known, well defined, and ancient, without necessarily being a public way. Slater v. Quinn, 170 Mass. 509 , 511 (1898). There must be a showing that it has been claimed by the public as of right, and this can only be inferred from proof of consistent and uninhibited use by the public. Such evidence is lacking in this case. Norman Benson's testimony indicates only infrequent use of the relevant portion of the way by him, and fails to establish any use at all by other members of the public. Such occasional use by delivery people and guests of neighboring landowners as was shown merely suggests passage along an open, private way. Although this road is located in a rural area and would necessarily be used relatively infrequently, this court finds that the sporadic use of the road by anyone other than a few nearby residents is inadequate to establish the degree of customary use necessary for the creation of a public way. The court rules that the disputed road has not become a public way by prescription.

HAVE PLAINTIFFS ACQUIRED AN EASEMENT BY PRESCRIPTION OVER LAMBERTS COVE ROAD?

General Laws, Chapter 187, Section 2, which essentially codifies the common law of easements, states as follows:

"No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon, or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years."

Most of the elements required for an easement are clearly shown in this case. The use of Old Lambert's Cove Road by owners of the Fisher property has continued uninterruptedly for twenty years. Fred Fisher, Sr. used the road from at least 1930 until his death in 1954. This use by the prior owner may be tacked onto the period of plaintiffs' own use. Bucella v. Agrippino, 257 Mass. 483 (1926). The road was used by plaintiffs during summers from 1954 to 1956, after which time it was used by lessees of plaintiffs' property. The use by their tenants may also be tacked. Ryan v. Stavros, 348 Mass. 251 (1964). Furthermore, although the use of the road apparently occurred only during the summer months, it will nevertheless be considered uninterrupted. Mahoney v. Heebner, 343 Mass. 770 (1961); Lawrence v. Houghton, 296 Mass. 407 (1937). Likewise, any closing by the defendant and her predecessors of the two gates across the road is not an interruption. The evidence indicates and the court finds that neither the intent nor the effect of closing the gates was to exclude people; it was designed to control the wanderings of animals, and thus cannot be considered a reassertion of defendant's or her predecessors' exclusive ownership rights to the road. Cf. Gadreault v. Hillman, 317 Mass. 656 (1945). Thus, for purposes of the statute, there was use each summer by either the Fisher family or its tenants from at least 1930 until the notice to prevent easement was filed in 1969, a period of 39 years. Moreover, the traditional requirement that the use be open and notorious has also been met in this case. Plaintiffs testified that the disputed road was their exclusive route to Lambert's Cove Road. Main Access Road, constructed in the 1940's and the only other access to Lambert's Cove Road from the Fisher's house, was not accessible to plaintiffs by vehicle until the extension of the disputed road was completed in approximately 1968. This court finds that the consistent use of the disputed road by plaintiffs and their predecessors each summer, during which season the successive owners of defendant's property were present to witness the use, satisfies the requirement that the use be open and notorious.

Defendant's main contention is that use of the road by plaintiffs and their predecessors was not adverse because it was allegedly done pursuant to the agreement recited above, although defendant introduced no evidence to substantiate that assertion. It is of course true that the exercise of a right under a license will not ripen into an easement. Johnson v. Knapp, 150 Mass. 267 (1889); Bachelder v. Wakefield, 8 Cush. 243 (1851). Plaintiffs, without objection, introduced evidence of extrinsic circumstances showing the relationship of the Fisher and Look families and the usage by the Fisher family of different parts of the Look property at a time proximate to the date of the agreement and contends that the license applied to a section of defendant's land that does not include the disputed road. This court rules that the evidence may be used for this purpose. It has long been held that evidence of extrinsic circumstances is admissible to clarify any ambiguity in a contract or to determine the subject matter to which it relates. Spaulding v. Morse, 322 Mass. 149 (1947); Radio Corp. of America v. Raytheon Mfg. Co., 300 Mass. 113 (1938); Taxi Service Co. v. Gulf Refining Co., 252 Mass. 314 (1925). It is exceedingly unlikely that Mrs. Look, who owned at least two large parcels of land, intended to grant to the entire Fisher family and its guests the unrestricted right to trespass at will across all portions of her property. Even if the contract could, on its face, reasonably be interpreted to include the disputed road, evidence of extrinsic circumstances is admissible to show that it was not intended to do so, provided the contract is not completely clear and would not be directly contradicted by such evidence. In Robert Industries Inc. v. Spence, 362 Mass. 751 (1973), the Court stated that, "[w]hen the written agreement, as applied to the subject matter, is in any respect uncertain or equivocal in meaning, all the circumstances of the parties leading to its execution may be shown for the purpose of elucidating, but not of contradicting or changing its terms ... Expressions in our cases to the effect that evidence of circumstances can be admitted only after ambiguity has been found on the face of the written instrument have reference to evidence offerred to contradict the written terms ..." (emphasis added) (Id. at 753-54). This agreement does not explicitly state whether it was intended to allow trespasses over all areas of defendant's property or, if limited to a particular portion, which one the parties had in mind. Evidence resolving this issue would therefore not contradict any term in the contract, but rather would permit this court to interpret it intelligently. Accordingly, plaintiffs' evidence is considered on the issue of the effect of the license and the subject matter to which it relates.

Plaintiffs contend that the extrinsic circumstances of the parties leading to the execution of the agreement on January 2, 1938, show that it was intended to allow only the use of Look's Beach by plaintiffs' family. The court agrees. Although the Fisher family had used the beach prior to 1938, it was about that time that the activity became more extensive. In the summer of 1937, Fred Fisher, Sr. constructed and placed upon the beach a wooden raft. In 1938, the Fisher and Look families cooperated to construct a bath house which, when destroyed by a hurricane later that year, was replaced by Mr. Fisher the following summer. In contradistinction, the disputed road had already been used for at least eight years, and perhaps many more, by the owners of the Fisher property, and there is no evidence of any unusual or extraordinary use of the road around the time the agreement was entered into. Thus, it is far more likely that the agreement granted a license for the use of Look's Beach than for Old Lambert's Cove Road, and this court so finds. In the absence of the agreement, the use is clearly adverse. An unexplained use of the land which is open and uninterrupted for 20 years is presumed to be adverse to the owner. Flynn v. Korsack, 343 Mass. 15 (1961); Tucker v. Poch, 321 Mass. 321 (1947); Mastandrea v. Baressi, 2 Mass. App. 54 (1974). Except for the agreement, held to be inapplicable to the disputed road, defendant has introduced no evidence to rebut the presumption.

On all the evidence the court finds and rules that Old Lambert's Cove Road has not become a public way by prescription; that plaintiffs have acquired an easement by prescription over that portion of defendant's land known as Old Lambert's Cove Road; and that defendant has no right to interfere with plaintiffs use of the road. Furthermore, the notice to prevent easement given by defendant pursuant to c. 187, § 3 constituted a disturbance of plaintiffs' easement, which entitles them under c. 187, § 4 to the full costs of bringing this action.

Judgment to enter accordingly.