MISC 87049

September 1, 1978

Randall, J.


Plaintiffs brought this complaint to enjoin defendant from blocking access to the plaintiffs' property. Trial was held on February 2, 1978. Six witnesses testified and 12 exhibits, incorporated herein for the purpose of any appeal, were introduced. Since the trial was held in the winter and the area involved inaccessible, a view was scheduled first for May 1, 1978 and when the ground had not dried sufficiently to permit access to the area on this date, postponed to June 1, 1978. On this date a view was taken with the principals and attorneys present. On July 25 a conference was held at the Court at which time the parties waived further argument and the filing of briefs.

The plaintiffs own lot #13 on the east shore of Swan Pond in North Reading as shown on exhibit no. 6, on which is a summer cottage. The defendant is the owner of lot 12, which abuts plaintiffs' lot 13 to the south, and in addition has a cottage located south of lot 12, presumedly on lot 11 shown on exhibit no. 6. All of these lots are approximately 40 feet wide. Plaintiffs' access to their cottage is first over Adam Street, a dirt road which proceeds around the east side of Swan Pond, and then over a driveway, the exact location of which is disputed, but which runs from Adam Street diagonally across a portion of defendant's lot 12 to plaintiffs' lot 13 terminating close to plaintiffs' cottage. This driveway is shown on exhibit no. 3.

The plaintiffs' father, Mr. Curley, purchased or helped his daughters to purchase lot 13 in 1974. In the early part of 1975 the defendant came to Mr. Curley's office and asked him to sign a lease granting plaintiffs the right to pass over the part of the driveway which traverses defendant's lot 12. Mr. Curley did not sign and the defendant informed him he had no right to use the driveway. Thereafter defendant placed a chain across the driveway which Mr. Curley cut. The defendant also parked his car in the driveway blocking access to plaintiffs' cottage. This litigation centers on the plaintiffs' right to use this driveway.

While the precise boundary line between defendant's lot 12 and plaintiffs' lot 13 has not been definitively located on the ground, the Court is convinced that at least a substantial portion of the driveway traverses defendant's lot 12. As plaintiffs' lot is approximately 40 feet wide (Tr. 46) , it would be impossible for plaintiffs' lot to embrace both the area upon which plaintiffs' cottage is located and the total area covered by the driveway which runs diagonally to plaintiffs' cottage from Adam street. Exhibit no. 12, a plan showing plaintiffs' and defendant's lots, was admitted into evidence by agreement of the parties at the view on June 1, 1978. This plan shows the approximate location of the plaintiffs' and defendant's cottages in respect to their boundary lines. It is clear from this plan and from the Court's observation on the view that plaintiffs' cottage takes up a substantial portion of the width of plaintiffs' lot. This plan also shows portions of the two driveways between the defendant's and the plaintiffs' cottages. The most southerly driveway runs to a cottage located behind plaintiffs', shown as lot 42 on exhibit no. 12, and is not used by plaintiffs. This driveway can also be seen in the photograph, exhibit no. 3. The second or more northerly drive is the one utilized by plaintiffs. As can be seen from both the plan, exhibit no. 12, and the photographs, exhibit nos. 3, 4, 5, this driveway crosses a substantial portion of the land between plaintiffs' and defendant's cottages. Thus, it must of necessity be located in part on defendant's land and the Court so finds.

The question then becomes whether plaintiffs have an easement by prescription over this driveway.

Mary Buchannan who lives on the west side of Swan Pond in the summertime testified on deposition, admitted into evidence by agreement as exhibit no. 1, that the two driveways between plaintiffs' and defendant's cottages have been in their present location for as long as she has been familiar with the area, some 55-60 years. (Tr. exhibit no. 1, p. 11). At first the driveway going to plaintiffs' cottage was used by horse and buggy and later, in the past 35 years (Tr. 28), by motor vehicles. She testified plaintiffs' predecessors in title used the driveway and she used it also when she visited two of plaintiffs' predecessors, first the Zarellas who owned lot 13 in the late 1940's (Tr. 14), and then the Farleys. She never found the driveway obstructed. Since 1952 she has visited on the east side of Swan Pond, the side on which the plaintiffs have a cottage, an average of three times a week during the summer.

The defendant disputes this use of the driveway going to plaintiffs' cottage claiming the drive did not exist prior to 1951. In front of plaintiffs' cottage and covering the width of plaintiffs' lot and beyond is a hill or knoll. This hill is shown in part on exhibit no. 4. Defendant argues this knoll extended over the area of the driveway prior to 1951 and made it impossible for a car to turn off Adam Street where the drive is now located and proceed to plaintiffs' cottage. (Tr. 58). Prior to 1951 Adam Street curved close by the door of defendant's cottage. In the spring of 1951 a bulldozer operator was contracted to straighten out the road and eliminate the curve by the cottage door. This was done, and as a result Adam Street now is further distant from the Lord cottage than it was in 1951. Fill was required for this road relocation which was taken, according to defendant, from the south side, i. e., the side closest to the defendant's property, of the knoll which rises in front of plaintiffs cottage. (Tr. 58). Defendant contends that prior to this removal plaintiffs' cottage could not be reached by the present driveway. Mary Buchannan did not dispute that the fill was removed from the knoll but maintained the driveway existed in its present location prior to the removal.

Mr. Buchannan's testimony on deposition, admitted by agreement as exhibit no. 2, was to the same effect as Mrs. Buchannan's. He was president of the Swan Pond improvement association, an association to which all the property owners in the Swan Pond area belong, for 25 years and a special police officer of the Town of Danvers, to whom Swan Pond is leased. He first drove into the drive in question in 1945. (Exhibit no. 2, p. 13). At that time it was grassy with two tire tracks. While the surface of the driveway has been improved, its location has not changed.

The Court finds that the driveway leading from Adam Street to plaintiffs' cottage existed in its present location for many years prior to the 1951 road work.

Secondly the defendant or defendant's witnesses maintain that plaintiffs' predecessors in title did not at all relevant times use this driveway; rather, they used "Zucco's driveway," a drive further north on the other side of the knoll which rises in front of the plaintiffs' cottage. Zucco's cottage is the next cottage northerly of plaintiffs'. Zucco's driveway is not located on plaintiffs' lot but is not far from it. During the past 30 years when the Buchannans have visited Zucco and Zucco's predecessor in title, Carlson, they have parked in the driveway to plaintiffs' cottage rather than in Zucco's driveway because the latter was so dilapitated and muddy. Mrs. Buchannan further testified that plaintiffs' predecessors in title used the driveway leading to plaintiffs' cottage and that she never saw the Farleys or Zarellas use the Zucco's driveway. Defendant also stated the Zarellas and Farleys parked in the driveway leading to plaintiffs' cottage but indicated said parking was with his permission.

As the location of Zucco's driveway in relation to the topography of the area and the layout of plaintiffs' cottage does not render it nearly as convenient an access to plaintiffs' cottage as the disputed driveway to the south, it is unlikely Zucco's drive was used as an entrance to plaintiffs' cottage other than occasionally and the Court so finds.

The Court concludes that the driveway leading to the plaintiffs’ cottage has been in existence for the past 50 years or so, and that it has been used by the plaintiff's' predecessors in title, the Zarellas and the Farleys, as the access to their property. The Court has no evidence before it specifically when the Zarellas acquired title to lot 13 end hence of when their use commenced; however, it is clear from the testimony that the Zarellas were in possession in the late 1940's (Tr. 15) and hence the Court computes the prescriptive period from 1949.

In 1949, lot 12, over which the disputed drive in part runs, was owned by the Town of North Reading. It had acquired lot 12 for nonpayment of taxes in 1937. (Exhibit No. 7B). The town foreclosed its tax lien in 1940. (Exhibit No. 7C). By deed dated November 7, 1957, the town conveyed lot 12 to James K. Edwards, the defendant's brother-in-law, who in turn conveyed it to defendant on November 16, 1973. (Exhibits No. 7D, 7E).

The fact that lot 12 was owned by the town of North Reading under a tax foreclosure during a portion of the prescriptive period does not affect the establishment of an easement by prescription. Title by adverse possession may be acquired to municipal property. Cohasset v. Moors, 204 Mass. 173 (1910). See also Harrison v. Dolan, 172 Mass. 395 (1899); Goldman v. Quadrato, 142 Conn. 398, 114 A. 2d 687 (1955); "Acquisition by Adverse Possession or Use of Public Property held by Municipal Corporation or other Governmental Unit otherwise than for streets, Alleys, Parks, or Common," 55 A.L.R. 2d 554, 616; c.f., New Bedford v. Floyd Investment Associates, Inc., 363 Mass. 112 , 117 (1973) and G. L. c. 260, §31.

From the continued use of the driveway by plaintiffs' predecessors in title, the Zarellas and the Farleys, dating from at least 1949 to 1973, it may be presumed that the use was under a claim of right and adverse sufficient to establish an easement by prescription. Flynn v. Korsack, 343 Mass. 15 (1961). The Court finds that the use by the Zarellas and the Farleys was not only by the permission of defendant or Mr. Edwards. Forbearance or implied acquiescence by the defendant or his predecessor in title would not prevent the establishment of an easement by prescription. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964).

The fact that the driveway was used on a seasonal basis is no bar to the acquiring of an easement by prescription. The nature and extent of use necessary to establish a prescriptive right is dependent upon the character of the land. LaChance v. First National Bank & Trust Co., 301 Mass. 488 (1938). The Swan Pond area is a summer community. Adam Road, the only access to the area, is not plowed in the winter. There are no utilities in the pond settlement rendering occupation during cold weather unfeasible. Hence, the use of the drive throughout the summer months is a sufficient prescriptive use, and whether or not the driveway was obstructed in the off season is immaterial.

Thus the Court concludes the plaintiffs have acquired an easement by prescription for access and parking over the driveway which extends from Adams street diagonally in a northwesterly direction across lot 12 to lot 13 and the defendant is permanently enjoined from blocking plaintiffs’ access over said driveway.

Judgment accordingly.