MISC 88466

October 10, 1979

Berkshire, ss.

Randall, C. J.


Plaintiff, not an attorney, has brought this action presumedly under the general equity jurisdiction of the Land Court, G. L. c. 185, Section 1 - against defendants, praying for an injunction restraining defendants from closing or obstructing an easement claimed by plaintiff, for damages, for the annulment of a "Notice of Intention to Prevent Requisition of Easement" filed by defendants and for a declaration of the "rights, duties, status and obligations of the parties."

Defendants' answer denies that plaintiff has a right of way by grant, prescription or necessity, questions plaintiff's title to the dominant tenement, alleges that plaintiff has lost any easement he might have by abandonment or by adverse possession on defendants' part, and denies any right of way by necessity over their land.

Plaintiff appeared pro se throughout the proceedings. Trial was held on October 12, 1978. Two witnesses testified and twenty-five exhibits, incorporated herein for the purpose of appeal, were introduced into evidence. A view of the property was taken on May 7, 1979 at which only plaintiff was present except for the Court.

Plaintiff's and defendants' land, located in the town of Mount Washington, Massachusetts, is shown on exhibit 4, a plan of Summit Farm. Plaintiff's land, comprising approximately twenty-five acres, is shown on the extreme southwesterly portion of the plan, marked LININGER (Louise Boynton) and was referred to throughout the trial as the Van Dusen woodlot. The western border of this Van Dusen woodlot is formed by the New York-Massachusetts state line. The lot is bisected from east to west by Cedar Brook which flows through almost a gorge with steep banks rising on both sides.

Defendants Pipers' land surrounds plaintiff's land on the remaining three sides. Defendants Neys' land is immediately east of the Pipers' land. Both the Neys' and the Pipers' northerly border is upon West Street Highway. An old road, referred to as easement B on exhibit 4, is shown running from West Street Highway south through the Pipers' land into the northern half of plaintiff's land. Another old road, denoted easement A on exhibit 4 is located east of easement B and runs from West Street Highway south along the division line between the property of the Neys and the Pipers. This way is not delineated on the plan but what is delineated is the pathway running northwesterly from easement A into the southerly portion of plaintiff's land. Plaintiff claims ways by necessity over both easements and the pathway connecting it and easement B.

Both plaintiff and defendants derive their title by mesne conveyances from a common grantor, Louisa O. T. Boynton, who was the stepmother of plaintiff's mother. She had acquired title to three parcels of land under the will of her late husband, Frank H. Boynton. The first parcel of land contained approximately 400 acres and was known as Summit Farm. The second parcel, a 27 acre plot known as the Van Dusen woodlot is surrounded on three sides, north, east and south by Summit Farm, parcel one. The third parcel, for convenience here called the Copake parcel, is in New York state and abutted the Van Dusen parcel on the latter's west. The state line between Massachusetts and New York state forms the westerly boundary of the Van Dusen parcel and the easterly boundary of the Copake parcel. Louisa O. T. Boynton conveyed out Summit Farm first to a William Kilpatrick by a deed dated August 28, 1915, recorded in Book 220, Page 351 (Exhibit No. 7). No right of way was reserved in this deed for the benefit of the Van Dusen parcel, bordered as it is on three sides by Summit Farm or for the benefit of the Copake parcel still farther west in New York state. By mesne conveyances Summit Farm then came down to one Christian Gunther who on December 1, 1942 conveyed to Sherwood Day a 188 acre parcel of Summit Farm by a deed recorded in Book 271, Page 358 (Exhibit No. 21). This deed reserved a right of way as follows: "Including in this conveyance, a right of way over the roadway leading from the highway along the westerly line of the above described tract. Reserving, however, to the grantor, a right of way over part herein conveyed." Day in turn conveyed the 188 acre tract to defendants Charles T. and Ruth K. Ney by a deed dated October 31, 1953, recorded in Book 300, Page 410 (Exhibit No.3) with the following proviso with reference to the way: "Including in this conveyance, a right of way over the roadway leading from the highway along the westerly line of the above described tract. RESERVING, however, to Christian Gunther, a right of way over part herein conveyed." It would appear that the way set forth in the deeds above is that shown as easement A on Exhibit D. Nowhere in this line of deeds is any way reserved for Louisa O. T. Boynton or her heirs including the plaintiff.

Gunther conveyed the remainder of Summit Farm to Hugh M. Whitton and Emily Whitton by a deed dated August 29, 1958 recorded in Book 319, Page 470 (Exhibit No. 22), making no mention of any reservation of a right of way in Gunther or anybody else. The Whittons then conveyed the same premises by a deed dated February 8, 1972 recorded in Book 379, Page 492 to Sidney E. Lazard. This deed to Lazard contains the following statement: "This conveyance is made subject to a right of way over the roadway leading from the highway along the westerly line of property now owned by Charles T. Ney et ux..." (Exhibit No. 23). Lazard in turn conveyed the balance of Summit Farm to defendants Piper by a deed dated March 17, 1976 and recorded in Book 412, Page 156. This deed contained the following statement with reference to the right of way: "This conveyance is made subject to a right of way over the roadway leading from the highway along the westerly line of property now owned by Charles T. Ney et ux; ..." (Exhibit No.2). In none of these deeds in the chains of title to defendants Piper and Ney is there any reservation of a right of way other than as set forth above and in no deed any reservation of a right of way or any mention of a right of way to plaintiff or his predecessors in title. Even had these deeds in the defendants' chains of title purported to grant any rights to the plaintiff, such a grant would be of no effect because a reservation of an easement to one not a party to a deed from which a reservation is made is void and thus records no rights in the stranger. Hodgkins v. Bianchini, 323 Mass. 169 (1948).

The second parcel, the Van Dusen lot, was deeded to plaintiff's mother, E. Ora Boynton, by a deed dated September 14, 1934, recorded in Book 254, Page 400 (Exhibit No. 8). Louisa O. T. Boynton had prior to this conveyed away Summit Farm. She owned only the Van Dusen lot and the Copake lot abutting it in New York state. When she conveyed out Summit Farm she reserved no rights of way over it for the benefit of the Van Dusen and Copake lots. Plaintiff obtained his title to the Van Dusen lot from E. Ora Boynton Lininger by deed dated April 17, 1958 and recorded in Book 303, Page 405 (Exhibit No. 1). This deed made no mention of any right of way.

The third parcel, the Copake lot, was conveyed by Louisa O. T. Boynton to Dorothea Hahn Travis by deed dated October 13, 1920, recorded in Book 230, Page 333 (Exhibit No. 13). No right of way was reserved by the grantor Louisa O. T. Boynton over the Copake lot for the benefit of the Van Dusen lot which bordered the Copake lot on the latter's east. There was evidence that the Copake, New York parcel is now part of Taconic State Park in New York state, but how and when it was acquired by the State of New York is not in evidence.

Thus, the Van Dusen lot has no right of way reserved to it over the Summit Farm lots to the north, east and south and no right of way reserved to it over the Copake lot to its west. When the Summit Farm land was conveyed by Louisa O. T. Boynton in 1915 with no right of way reserved over it the Van Dusen lot adjoining the Copake lot had a means of access over the latter, then in the same ownership, to a way in New York state. Conjecturally, when the Copake land was conveyed by Louisa O. T. Boynton to Travis in 1920 perhaps a right of way of necessity would have been implied over it for the benefit of the Van Dusen lot. What has happened to this possible right of way of necessity over the Copake land, if it ever existed, is not before us. Thus, the Court finds and rules that the plaintiff's parcel has no right of way by grant or necessity over defendants' land. Does he in fact have any right of way through prescription?

To acquire such a way he must show nonpermissive use of the ways which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964).

It appeared on the view taken by the Court that easement B as shown on Exhibit D was an ungraveled two track rutted way from West Street southwest for some 400 feet to a field. The appearance of a way disappeared in the open field or meadow, bordered as it is on the northwest by forest. An opening about 900 feet in from the road, again containing two ruts, went from the field in a westerly direction toward the Van Dusen lot. This way was through a forested area, with underbrush. The way could possibly be travelled by automobile for about 300 feet, getting always more indistinct. By the time the way got to the Van Dusen lot it con- sisted of at most an overgrown footpath. Travel over this way through the meadow and then through the forest to the Van Dusen lot shows little recent, if much past, use.

The claimed way over easement A and the path leading westerly from it to the southerly portion of the Van Dusen lot, showed more use, although it was not possible to drive in from West Street due to fallen trees in this way. Easement A was a well defined way for the most part, although it shows little recent travel. A farm pond had been dug near the way and there was evidence of clearing around the pond. This way has been little travelled in recent years.

There was little evidence of use by the plaintiff of these ways. Plaintiff lives on Long Island and visited the lot at most a few times a year by his testimony and then got to it by using both ways, easements A and B. Plaintiff's mother owned the Van Dusen lot until 1958. There is little evidence that she ever visited it although plaintiff testified that she asked him for directions to it on one occasion. Sometime around 1972 a timber appraiser hired by the plaintiff visited the premises but how he got there is uncertain.

Thus, the use of the ways has been at most sporadic. Certainly, there was little evidence to show an "open and notorious" use by the plaintiff. The burden of proving a way by prescription is on the plaintiff and he has not sustained this burden.

The plaintiff has no right of way by grant or necessity over defendants' land. Nor has he acquired any right of way by prescription over defendants' land. plaintiff is not entitled to any of the relief sought in his complaint.

Judgment accordingly.