GUIDO BERTELETTI and IDA BERTELETTI v. PETER H. VERZONE, LEONILDA SALEME, FLORENCE CHETKAUKA, GINO F. VERZONE and JOSEPH KESSLER, JR., Trustee of MID-CENTURY TRUST.

The plaintiffs, Guido Berteletti and Ida Berteletti, of Canton in the County of Norfolk, seek in this proceeding to eliminate the portion of a paper street known as Devonshire Street in said town which lies northerly of the northerly line of Meadow Street as shown on the plan to which reference hereafter is made; to establish as their northwesterly boundary the center line of said paper street; and to obtain a determination from this Court that they hold title to the southeasterly twenty-five (25) feet of said paper street between the southwesterly and northeasterly lines of their premises extended free from any right of the defendants to use the same.

The defendants, Peter H. Verzone, Leonilda Saleme, Florence Chetkauka, Gino F. Verzone, and Joseph Kessler, Jr., Trustee of Mid-Century Trust, are the owners of lots abutting on the pertinent portion of Devonshire Street and claim (other than defendant Kessler) that said street is still in existence. Defendant Kessler answered to the effect that he would not object to the Court's granting the relief requested provided a perpetual easement for a sewer line was granted to him. [Note 1]

The facts are largely uncontroverted. On all the evidence I find and rule as follows: the plaintiffs are the owners of Lots A, 428, 430, 432, 433, 434, 436 and 437 on a plan entitled "Plan of the Canton and Sharon Park lying between the Canton and Sharon Depots Mass. belonging to Samuel Hedly," dated October, 1875, by A.R. Sweet recorded with Norfolk Deeds, as Plan No. 258A and B (Exhibit No. 2); such lots are bounded on the southeast by Walpole Street (shown as Chestnut Street on the plan), on the southwest by Meadow Street; on the northwest by Devonshire Street; and on the northeast by Lots 438 and 439 on said plan; the premises were conveyed to the plaintiffs by James T. Flood et ux by deed dated October 22, 1940 and recorded with said Deeds, Book 2305, Page 288 (Exhibit No. 1); Emile Verzone and Cesira Verzone acquired title to Lots 442 to 445 inclusive on the plan from Madeline Crevola by deed dated April 17, 1922 and recorded with said Deeds, Book 1516, Page 446 "(Exhibit No. 7) and to Lots 451 to 477 inclusive from John Crowley by deed dated September 9, 1924 and recorded with said Deeds, Book 1613, Page 633 (Exhibit No. 6); defendants, Verzone, Saleme and Chetkauka, are successors in interest to the Verzone lots; the Verzone lots abut land of the plaintiffs on Walpole Street extending to Devonshire Street and they also adjoin the land of the plaintiffs in the rear on the opposite side of Devonshire Street; defendant Kessler is the owner of Lots 446 and 450 [Note 2] which abut Devonshire Street; the portion of Devonshire Street in issue is shown on the plan as running northerly from Meadow Street to deadend at either the developer's property line or the Neponset River; said street exists on paper only, is fifty feet in width and has not been constructed in any way on the ground; so far as appears from the records of the Selectmen of the Town of Canton (Exhibit No. 4), this portion of said street has never been laid out as a public way by the Town nor has it been shown on a subdivision plan filed with the Planning Board (Exhibit No. 3); there are trees with a substantial diameter and underbrush on the southeasterly half of the street adjoining the plaintiffs' lots; fences have been erected on behalf of the defendants (other than Kessler) along either the northwesterly sideline or the center line of Devonshire Street north of Meadow Street and enclose the Verzone land located on the northwesterly side; the latter has been used for grazing of livestock and the fences have served to confine it; a pony now is kept in the pasture; the entrance to the Verzone back land is through a gate at the corner of Walpole and Meadow Streets; this leads into the land on the northwesterly side of Devonshire Street with the fence to the right as entry is made; the Verzone back land can be reached on foot from the Walpole Street lots, but the grade is too steep for motor vehicles to traverse this route and there may be insufficient room.

The easement to use the private ways on the plan appears to rest on implication from the conveyance of numbered lots thereon rather than from an express grant of the right. Accordingly, there would seem to be no reason for the owners of any lots shown on the recorded plan to use that portion of Devonshire Street which lies southerly of Meadow Street and terminates at the river other than the owners of lots abutting on Devonshire Street. I therefore find and rule that the grantor did not intend that the right to use the portion of Devonshire Street in issue be appurtenant to any lots other than those abutting on it. See Walter Kassuba Realty Corp., v. Akeson, 359 Mass. 725 (1971).

It has long been the law of this Commonwealth that the conveyance of a lot by reference to a plan includes the conveyance of such rights to use the ways thereon as are necessary for the enjoyment of the premises. Prentiss v. Gloucester, 236 Mass. 36 , 52 (1920); Wellwood v. Havroh M.A.S. Cemetery Corp., 254 Mass. 350 , 354-55 (1926). There seems no doubt that at the time of the conveyance out of the lots of the defendants it was intended that there be appurtenant to all such lots abutting on Devonshire Street the right to use the portion thereof which lies northerly of Meadow Street. That being so, the question is presented as to whether the easement has been abandoned or alternatively eliminated by adverse possession of the plaintiffs. There is no persuasive evidence of the latter, for the claim of the plaintiff that he holds title to one-half the fee of the street free from the rights of other abutters is of recent origin.

The decisive question then becomes one of abandonment which commonly is a question of fact. It is settled that mere non-user of itself does not constitute abandonment. Abandonment is a matter of intention and can be shown by conduct evidencing an intent never again to use the easement. Parlante v. Brooks, 363 Mass. 879 (1973); Sindler v. William M. Bailey Co., 348 Mass. 589 (1965); Lemieux v. Leather Finishing Corporation, Mass. App. Ct. (1979). [Note 3]

There was insufficient evidence of any intent on the part of the defendants to abandon their right to use Devonshire Street to justify such a conclusion. The evidence was conflicting as to whether the owners of the Verzone lots had erected a fence around the lots located northwesterly of Devonshire Street on the northwesterly side line of Devonshire Street or in the center of it. Peter Verzone, one of the owners of the Verzone lots and a defendant, testified that the fence was on the side line whereas his brother-in-law Longee Chetkauskas, husband of a defendant, testified that he and Mr. Verzone installed a barbed wire fence approximately in the center of the road about twenty- five to thirty feet in the rear of the fence on the Berteletti property. A 1976 plan prepared for the plaintiffs and recorded with said Deeds, as Plan No. 531 of 1976 in Plan Book 256 (Exhibit No. 9) shows neither fence. The case law is clear, however, that the construction of a fence without more does not establish abandonment as a matter of law. The other evidence before me, including the existence of trees and brush in the way and non-user, falls short of the standard for establishing abandonment discussed in the cases cited above. See also Arcisz v. Pietrowski, 268 Mass. 140 (1929); New England Structural Company v. Everett Distilling Company, 189 Mass. 145 (1905). The other defendant appears to date to have made no use of Devonshire Street, but he has taken no definitive steps to surrender any rights he may have therein, and accordingly abandonment on his part has not been proved.

Judgment accordingly.