VINCENZO STUCCHI and VICTORIA STUCCHI vs. ANTHONY M. COLONNA and DOROTHY A. COLONNA as Trustees of Cedar Point Realty Trust.

This is a Complaint for a Declaratory Judgment in which the plaintiffs, Vincenzo Stucchi and Victoria Stucchi, husband and wife, both of Framingham in the County of Middlesex seek a determination that they have acquired a right of way by prescription across land of the defendants, Anthony M. Colonna and Dorothy A. Colonna, Trustees of Cedar Point Realty Trust, located on Arlington Place in said Framingham and a binding declaration of the rights of the parties in said way. The plaintiffs also seek a permanent injunction ordering the removal of a chain link fence and two gates from the way. The defendants' answer denies that the plaintiffs have acquired an easement by prescription and alleges that any use by them was permissive.

A trial was held at the Land Court on April 12, 1978 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken by the Court on September 15, 1978.

On all the evidence I find and rule as follows: the plaintiffs are the owners of the major portion of Parcel No. 11 as shown on a plan entitled "Plan of Property in Framingham Mass. owned by Estate of Theodore H. Videto", dated April, 1920 by Israel Aubey, recorded with Middlesex South District Deeds as Plan Number 1087 of 1940 in Book 6445, Page 371 (Exhibit No. 5); Parcel No. 11 has frontage on Pratt Street; a portion of Parcel No. 11, including that with frontage on Pratt Street, was conveyed by Victoria Stucchi to Giovanni Pignolo et ux by deed recorded with said Deeds, Book 6445, Page 372 in which conveyance a twenty foot right of way to Pratt Street was reserved (Exhibit No. 1); the defendants are the owners of Parcel No. 9 on said plan (Exhibit No. 4); Arlington Place runs southeasterly from Arlington Street and terminates at the northwesterly boundary of land of the defendants; between the southwesterly boundary of said land and the land of the plaintiffs is the Sudbury Aqueduct, which is land of the Commonwealth of Massachusetts acting through the Metropolitan District Commission ("MDC"); Mrs. Stucchi, who initially acquired title to the land and thereafter conveyed it to herself and her husband (Exhibits Nos. 1 and 2), has the benefit of a permit from the MDC which allows her to use a portion of the aqueduct as a lawn, to maintain an existing four-inch cast-iron sewer pipe across the aqueduct and to use a ten-foot strip across it as a passageway; the permit is still in full force and effect; the passageway therein mentioned is located as shown on two plans by Drake Associates, Inc. introduced into evidence as Exhibits Nos. 9 and 10 and labeled "(Existing) 10' Right of Way" on the former and "10' Wide Right of Way (Existing)" on the latter; the plaintiffs customarily use a different route across the aqueduct than is covered by the MDC permit, the actual route being shown as "driveway" on Exhibit No. 9; the plaintiffs and those claiming under them have crossed the aqueduct and the land now of the defendants for access to and egress from Arlington Place since the fall of 1940 when they purchased their property; the route across the defendants' land always has been substantially the same; much of the travel has been on foot, but the plaintiffs, members of their family and their guests also have driven between the Stucchi property or the MDC land and Arlington Place across the defendants' land; the plaintiffs' home address is 11 Arlington Place; occasional deliveries are made by this route; the plaintiffs have fenced their own property to protect their cats from unleashed dogs, and many vehicles park on the Commonwealth's land rather than attempting to negotiate the plaintiffs' gate; the defendants have caused a new chain link fence to be erected enclosing a portion of their lot with two gates in the fence; all or most of the remainder of their property previously was fenced; the property was acquired by the Colonnas individually in 1952 and used for a construction business until 1975; it presently is unoccupied, and Mr. Colonna's insurance company presumably imposed the requirement which led to the fencing and the installation of gates; the gate between the land of the defendants and Arlington Place is 13' 9 inches wide, which is narrower than the traveled portion of Arlington Place [Note 1] and the gate between the defendant's land and the aqueduct is ten feet, the same width as the passageway described in the MDC permit; some of the plaintiffs' guests or other invitees have difficulty negotiating the gates in a motor vehicle; and at the view Pratt Street and the right of way to it appeared to be a preferable route to Arlington Street despite the testimony to the contrary at the trial.

The plaintiffs argue that the installation of a) a fence across the end of Arlington Place albeit with a gate in it and b) the gate across the passageway in the defendants' southwest boundary interfere with their use. The defendants for their part contend that the plaintiffs' use of their premises has not been adverse and that therefore they are entitled to bar access or at least to limit it by furnishing a key to the gates. The latter solution is objected to by the plaintiffs as unacceptable since it would be unworkable in the case of third parties and would bar emergency vehicles such as fire engines and ambulances.

There can be no doubt that the plaintiffs have acquired a right of way by prescription to pass and repass on foot and in vehicles over a strip of the defendants' land about ten (10) feet in width running from the end of the area described in the MDC permit to Arlington Place. [Note 2] There was a plethora of uncontroverted testimony as to use by the plaintiffs and those claiming under them of a way across the southwesterly corner of Lot 20 for well over twenty years.

One claiming an easement by prescription bears the burden of proving that his use has been "open, uninterrupted and adverse for a period of not less then twenty years." Tucker v. Poch, 321 Mass. 321 , 323-24 (1947); G. L. c. 187, §2. He need not show that his possession is exclusive as that term is used in adverse possession, but "[h]e must show that his use has been exclusive in the sense that he relies on his own use or those under whom he claims and not on the use by third parties." Labounty v. Vickers, 352 Mass. 337 , 349 (1967). Yet the "[u]ses of the way by third persons for purposes primarily beneficial and appurtenant to the dominant estate may be taken into consideration in deciding whether an easement by adverse use has been acquired...." Abbott v. Mars, 277 Mass. 122 , 124 (1931).

The findings which I have made impel the conclusion that the plaintiffs' use was open, continuous and notorious for more than twenty years. ".... '[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription ... unless controlled or explained.'" Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762-63 (1964), citing Flynn v. Korsack, 343 Mass. 15 , 18 (1961); accord, American Oil Co. v. Alexanderian, 338 Mass. 112 , 115 (1958).

Despite the evidence of adversity, the defendants assert that the use of their land, throughout the years, has been permissive. Whether a use has been made under a claim of right, as the plaintiffs claim or with permission, as the defendants contend, is a question of fact; once the presumption of adversity is operative, the defendants have the burden of rebutting it. Sturnick v. Watson, 336 Mass. 139 , 142 (1957); Bigelow Carpet Co. v. Wiggin, 209 Mass. 542 , 548 (1911). In resolving the issue, implied acquiescence must be distinguished from permission.

[N]o easement may be acquired by prescription except through adverse use .... Implied acquiescence is not necessarily the same as permission .... [A]dverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto.

Ivons-Nispel, Inc. v. Lowe, supra at 762-63. The affirmative duty of a potential servient landowner was early stated by Justice Holmes as follows:

A landowner in order to prevent ... [a way by prescription from arising] is not required to battle successfully for his rights; it is enough if he asserts them to the other party by an overt act, which, if the easement existed, would be a cause of action. Such an assertion interrupts the would be dominant owner's impression of acquiescence and the growth in his mind of a fixed association of ideas, or, if the principle of prescription be attributed solely to the acquiescence of the servient owner, it shows that the acquiescence was not a fact.

Brayden v. New York, New Haven, & Hartford R.R., 172 Mass. 225 , 225-26 (1898) (Holmes, J.). The defendants have failed to introduce any evidence to support their claim of permissive use nor of any overt act of the type referred to by Justice Holmes and this defense, therefore, must fail.

The more difficult aspect of the case is to reconcile the respective rights of the parties so that neither will be unfairly burdened. Since the easement arises by prescription and not by grant, its extent is limited by the use shown. Lawless v. Trumbull, 343 Mass. 561 , 562-63 (1962); Swensen v. Marino, 306 Mass. 582 , 585-86 (1940). "[T]he servient owner", as was said in Merry v. Priest, 276 Mass. 592 , 600 (1931) "retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner or acquired by him, and, if gates or bars are appropriate to facilitate that use, he may establish or maintain them if no material interference with the easement results." This then is the crux of the matter, whether or not there has been material interference.

Having viewed the gates in question and analyzed the difficulty of driving through them, I can only conclude that there has not been material interference with the prescriptive easement by their erection. Moreover, I find and rule that the defendants may keep such gates locked so long as they provide the plaintiffs with keys to the locks. As a condition of their use the plaintiffs must close and lock the gates after they pass through. The use of this route by delivery trucks has been so irregular and sporadic that I find and rule that the plaintiffs have failed to establish any prescriptive right for such vehicles to cross the defendants' property. They and the mailman easily can make deliveries from Pratt Street, and any emergency vehicles such as an ambulance or fire truck can reach the plaintiffs' home from said street without difficulty.

Judgment accordingly.