C. ROBERT CAMPBELL and DOROTHY CAMPBELL v. DANIEL A. VAN DUYNE and MARGARET S. VAN DUYNE.

Plaintiffs bring this action pursuant to G. L. c. 231A seeking, 1) a declaratory judgment that they have a prescriptive easement for access by foot and by vehicle over a portion of a driveway running along the easterly boundary of defendants' property; 2) an order directing defendants to remove certain fences erected in the driveway area and to restore the portion of the driveway which defendants have torn up; 3) a permanent injunction preventing the defendants from interfering with plaintiffs' use and enjoyment of the driveway; 4) a decree authorizing the plaintiffs to record a plan describing their easement in the driveway at the Middlesex South Registry of Deeds; and lastly, 5) an order directing the defendants to remove a fence erected by them between plaintiffs' and defendants' garages insofar as it encroaches upon the plaintiffs' property.

Defendants, while represented by counsel, answered generally denying plaintiffs' allegation. By way of counterclaim they have asked this Court for 1) a declaratory judgment that they have a prescriptive easement for access by foot and by vehicle over that portion of the driveway running along plaintiffs' westerly boundary if the Court finds that the plaintiffs have a like easement along defendants' easterly boundary; 2) a declaratory judgment that plaintiffs have abused and overburdened their easement; 3) a decree authorizing the defendants to record a plan describing their easement at the Middlesex South Registry of Deeds.

In addition they pray that the Court issue a permanent injunction enjoining the plaintiffs from overburdening the easement, from snowblowing snow from the driveway on to the defendants' property, enjoining plaintiff Dorothy Campbell from driving upon the driveway, enjoining plaintiffs' son from disposing of waste oil along their westerly boundary, and enjoining plaintiffs from keeping their dogs unleashed and allowing them upon defendants' property. Finally, defendants also seek compensation for property damage and emotional distress allegedly caused them by the plaintiffs' use of the easement and the necessity of defending this suit.

Trial was held on the matter May 31, 1979 at which a stenographer was sworn to take testimony. The defendants conducted their own case, choosing not to be represented by counsel at the trial. Seven witnesses testified and twenty exhibits were entered into evidence and are incorporated herein for the purpose of any appeal.

The Court finds the facts to be as follows:

1. Plaintiffs, C. Robert Campbell and Dorothy Campbell, acquired Lot 45 shown on a plan by McClintock and Woodfall dated May 18, 1918 and recorded with Middlesex South Registry of Deeds in Book 280, Page 43 [Note 1] (Ex. 3) by deed of A. Clyde Crocker and Irene B. Crocker dated August 21, 1963, recorded with said deeds at Book 10339, Page 472. (Ex. 8)

2. Defendants, Daniel A. Van Duyne and Margaret S. Van Duyne acquired Lot 46 on the above mentioned plan by deed of the New England Merchants National Bank and E. Ellsworth Abercrombie, executors of the will of Edith M. Chase, dated November 16, 1970, recorded in Book 11919, Page 477. (Ex. 9)

3. Plaintiff Campbells' Lot 45 is on the east and defendant Van Duynes' Lot 46 on the west, with the common boundary between the lots running some 140 feet north from said Raleigh Road, separating the houses of the litigants. Plaintiff Campbells' house is located some 9.73 feet east of the boundary line and defendant Van Duynes' home is some 8.54 feet to the west of the boundary line.

4. Both lots have single car garages located thereon, each 6 feet respectively from the common boundary with the front of defendant Van Duynes' garage being set back some 8 feet to 10 feet to the rear of the front of the Campbells' garage.

5. In the space between the houses two two-foot concrete walks were located running from roughly the rear of the houses south to Raleigh Road. The westerly edge of the concrete walk on the plaintiff Campbells' lot was located 3 feet east of the boundary line. The easterly edge of the concrete walk on the Van Duynes' lot is located 4.2 feet westerly of the common boundary line. The area between these concrete walks was paved with asphalt and leads to a larger paved area in front of the respective garages in the rear of the houses.

6. Sometime in 1976 the Van Duynes removed the southerly fifty feet of the two-foot wide concrete walk on their side of the asphalt and planted shrubbery and other plants in this area. In addition they erected a chain link fence from Raleigh Road north along the edge of the asphalt and what had been the easterly edge of the two-foot walk for some twelve feet from Raleigh Road and thereafter a snow fence along the edge of the asphalt for a further distance of some 20 feet more or less to a point where the concrete way was left undisturbed. (See Exhibits 11a, b, c, and d).

7. From at least 1973 the Van Duynes grew flowers in the very narrow strip of ground immediately adjacent to their house, with these plantings protruding somewhat in season over the concrete strip. (See Ex. 15). Even prior to their ownership this portion of the concrete strip became overgrown with Boston Ivy in season.

8. Since they acquired the property in 1963 the Campbells and their tenants have used the driveway for vehicle and foot travel daily.

9. From 1974 to 1977, the Campbells rented their premises to their son and three other optometry students, each of whom had at least one automobile. Some also owned motorcycles. These students made frequent use of the driveway area and from time to time parked one or more vehicles on the asphalt in front of the Campbells' garage entrance. (See Ex. l8a)

10. Prior to the ownership of Lot 45 by the Campbells, their immediate grantors, A. Clyde and Irene B. Crocker during 1962 and 1963 used the common driveway for their car daily and from 1945 to 1962 (See Ex. 4) their predecessors in title, in turn, Leo R. Moore and Elsie Moore owned an automobile and drove over the driveway at least twice daily.

11. The Van Duynes purchased lot 46 in 1970 and have driven automobiles over the driveway on a daily basis since then. Marcus Chase and Edith Chase owned lot 46 from 1928 until it was conveyed to the Van Duynes (See Ex. 19) by Mrs. Chases' executrixes (Ex. 9). Mrs. Chase drove an automobile daily over the driveway area until shortly before she died.

12. Both houses were built sometime prior to 1934. There is no evidence as to which house was built first nor is there evidence as to when the garages were built and the asphalt laid.

13. In 1976 the defendants Van Duyne communicated to the Campbells through an attorney their intention to erect a fence from a point marking the northerly point of this asphalt pavement to the rear line of their lot and warned the Campbells that "should you tear it down or otherwise damage it, they will institute a suit for trespass against you. . ." (Exhibit 10). Thereupon, a wooden stockade fence was built by them north to the property line. There was already a wooden fence running from the rear of the property line some twenty-two feet south to an angle therein, where it joined another fence running westerly from the rear of the Campbells' garage. Thus, for the northerly twenty two feet the two fences stand back to back. Unfortunately for the defendants Van Duyne the fence built by them from the point on the asppalt encroaches on the Campbells' property some .45 feet. (See Ex. 1).

14. A Japanese ornamental maple grew on the Van Duynes' property between the two garages until it died and was cut down in 1977, allegedly because of oil being dumped thereon by the Campbells' son and tenants.

I. Do the parties have prescriptive rights over that portion of the driveway owned by the other?

Both plaintiffs and defendants claim an easement by prescription in each other's portion of the driveway area from the northerly edge of the asphalt south to Raleigh Road and from the extreme easterly and extreme westerly edges of the concrete ways. To acquire such an easement by prescription each must show actual, open, notorious, exclusive, and adverse, uninterrupted use for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Nothing in this case indicates a grant of permission which would nullify either party's adverse claim. See Bigelow Carpet Co. v. Wiggin, 209 Mass. 542 (1911). Tucker v. Poch, 321 Mass. 321 , 324 (1947). The use of the driveway area by one may be tacked to the use of others to establish a prescriptive easement. See Ryan v. Stavros, supra at 264. "In Truc v. Field, 269 Mass. 524 , 528-529 (quoted in Tucker v. Poch, 321 Mass. 321 , 324) it was said: 'The rule in Massachusetts is that wherever 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.'" Flynn v. Korsack, 343 Mass. 15 , 18 (1961).

There was evidence and the Court finds that the common driveway was used by both plaintiffs and defendants and their predecessors from at least 1945 on for ingress and egress on foot and by vehicle from their respective garages to Raleigh Road. The area so used included the concrete strips. These were used especially when turning on to and in from Raleigh Road and in effecting a turn after backing out of the parties' respective garages. There would appear to be no question that automobiles were driven over the concrete strip along the Campbells' property. There was testimony that the concrete strip on the Van Duyne property had become overgrown with ivy and that after the Van Duynes removal of the concrete walk and ivy, flowers were planted by them between their house and the asphalt, over what had been the concrete walk in part. Exhibit 15 shows that the flowers overhanging the concrete way in no way render it impassable.

The Court finds and rules that both plaintiffs and defendants have acquired prescriptive easements in the others' portion of the driveway area, including the asphalt area and the two-foot concrete strip on each side thereof.

II. Has the easement been overburdened and is it now?

Defendants claim that plaintiffs have abused and overburdened the easement by the frequent use of the driveway by the four college aged tenants of the Campbells who drove automobiles and motorcycles in and out of the garage and backyard of Lot 45 between 1974 and 1977. Though there was substantial amount of testimony from neighbors that the Campbells' four young tenants were not noisy, the Van Duynes contend that the boys frequently held loud parties at the house and disturbed the Van Duynes' sleep with their motorcycles. The Van Duynes say that it was because of the alleged disturbances that in 1976 they threatened to erect a fence down the length of the asphalt on the boundary line of the lots.

The boys' use of the driveway may have caused the Van Duynes some annoyance but that situation ceased in 1977 and the driveway has seen only normal use by the lot owners since. Overall the Campbells' use of the easement does not appear to have been so substantial as to be unreasonable. The Court finds that plaintiffs' use has not (and certainly does not now) exceeded any privileges shown to have been acquired and so rules.

III. Does the fence running north from the northeast point of the asphalt encroach on the plaintiffs' lot?

Plaintiffs have alleged that the fence erected by the Van Duynes toward the rear of the lots along the boundary between the garages encroaches on plaintiffs' property. The Court finds and rules from all the evidence that said fence does encroach by approximately .45 feet (Paragraph 13) and orders the defendants to move it at least this distance to the west.

IV. Other relief.

The Court holds that there is insufficient evidence upon which to grant any of the prayers for injunctive relief sought by both plaintiffs and defendants. There is no reason to believe that this driveway cannot and will not be used properly by both parties herein. There is insufficient evidence to warrant a finding that plaintiffs or their tenants have caused damage to a Japanese maple tree located on defendants' property. There is likewise no evidence nor will the Court assess damages for emotional distress allegedly suffered by the defendants.

Inasmuch as the parties can record plans describing their easement as they see fit, the Court sees no reason to authorize the recording of such.

To sum up, the Court rules that both plaintiffs and defendants have prescriptive rights to use the driveway from Raleigh Road north to the end of the asphalt paving and from the eastern edge of the concrete walk on the east to the western edge of the same on the west; that the concrete walk where torn up by defendants be replaced; that the chain link fence running north from Raleigh Road for some 12 feet be removed; that the stockade fence be moved .45 feet to the west where it encroaches on plaintiffs' land.

Both plaintiffs and defendants have submitted requests for findings of fact. The Court has made its own findings. Therefore only those requests for findings of fact which are consistent with the Court's findings are allowed. All others are denied.

Judgment accordingly.