MARION L. COX, CLAIRE C. CORDERO, Trustees of COX FAMILY TRUST v. GARABET HORENIAN and GRACE HORENIAN.

The plaintiffs, Marion L. Cox and Claire C. Cordero, Trustees of Cox Family Trust, and the defendants, Garabet Horenian and Grace Horenian, own adjoining homes known as and numbered 58 and 54 The Arborway, respectively, in the Jamaica Plain District of the City of Boston in the County of Suffolk. Title to the land of the plaintiffs is registered, and they are the registered owners named in and present holders of Certificate of Title No, 86065 (Exhibit No. 7) issued by the Suffolk County Registry District of the Land Court. The defendants' land is unregistered and was conveyed to them by Daniel I. Cronin et ux by deed dated August 3, 1977 and recorded with Suffolk Deeds, Book 8974, Page 278 (Exhibit No. 8). After the defendants moved into their home, a controversy arose between the parties as to the use by the plaintiffs of two feet of the defendants' land as an addition to their driveway, and as the dispute accelerated, the defendants erected a fence on the common boundary line which effectively barred the plaintiffs from driving on the defendants' property. The filing of the complaint in this case followed; the plaintiffs seek a determination that they have acquired the right by prescription to use the driveway and an order requiring the removal of the fence and that the defendants refrain from further obstruction. The defendants in their answer allege that use by the plaintiffs and their predecessors was permissive and accordingly no easement by prescription was obtained; they counterclaimed with a prayer that the plaintiffs be enjoined from trespassing on the premises at 54 The Arborway and from operating a boarding house at 58 The Arborway.

A trial was held on March 5 and 7, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows: a predecessor in title of the defendants, Edward W. Giblin, was issued a permit in 1948 to construct a garage in the southeasterly corner of his lot approximately two feet northerly of the common boundary line; the then owners of the plaintiffs' property were John P. Gately and wife; Mr. Gately has died and his widow, now Eleanor M. Farrell, testified that she had no knowledge as to the arrangements made between her husband and Mr. Giblin as to the use of the driveway nor as to any sharing of the expense of paving it; the Gately family had two cars during the time they owned what is now the plaintiffs' property, and they used the driveway, including the area in dispute, for access to the back yard from the public way from about 1948 until they moved in the fall of 1971; the shoveling of snow was shared by the sons of the Giblin and Gately families; the Giblins conveyed the 54 The Arborway premises to Daniel I. Cronin and his wife in 1955; Mr. Cronin is a social service director and since 1940 has been a member of the bar, not currently "registered;" at the time of the execution of the preliminary purchase and sale agreement Mr. Giblin pointed out the boundary line to Mr. Cronin; Mr. Gately then joined Messrs. Giblin and Cronin, and the former said to him, "I hope he will let you use the driveway as I did;" Mr. Cronin then said he would; subsequently, about five or six years later the driveway was repaved, areas of both yards were "hot topped" as were short walkways to the two houses and the cost was shared; the use of the driveway continued amicably until recently; the fence erected by the defendants in April, 1978 is shown on Exhibits 5, 6 and 10 to 12 inclusive; and at its nearest point to the Cox house it is approxi- mately six feet two inches therefrom which the plaintiffs claim bars their access by automobile to their rear yard.

The principal issue in the case before this Court is whether the use of the portion of the driveway situated on the defendants' land by the plaintiffs and their predecessors-in-title which admittedly has continued for more than twenty years was permissive or adverse.

In order to establish the existence of a prescriptive easement over the passageway, the plaintiffs must prove that "use of the passageway had been open, uninterrupted and adverse for a period of not less than twenty years." Tucker v. Poch, 321 Mass. 321 , 323 (1947); Gadreault v. Hillman, 317 Mass. 656 , 661 (1945); Van Allen v. Sweet, 239 Mass. 571 , 574 (1921); G.L. c. 187, §2. The plaintiffs are aided by the presumption that any unexplained use of property by a person other than the owner is presumed to be under claim of right and adverse. Lever v. Cook, 355 Mass. 634 , 637 (1969); Fortier v. H.P. Hood & Sons, Inc., 307 Mass. 292 , 298 (1940); White v. Chapin, 94 Mass. (12 Allen) 516, 519 (1866). The defendants must rebut that presumption by introducing evidence that permission to use the property was granted. See Truc v. Field, 269 Mass, 524, 528-29 (1930). If the defendants can establish that the use of the driveway was permissive, then "an adverse right of an easement cannot grow out of a mere permissive enjoyment." Bachelder v. Wakefield, 62 Mass. (8 Cush.) 243, 251 (1851).

Although evidence of joint repair of the driveway was introduced, such evidence would be consistent with either an adverse claim of right or a permissive agreement. White v. Chapin, supra at 522. In order to establish that a use is permissive, the defendants must show a recognition on the part of plaintiffs or their predecessors- in-title that the defendant may permit or prevent continuance of the use, See Ryan v. Stavros, 348 Mass. 251 , 263 (1964); cf. Robert v. Perron, 269 Mass. 537 , 541 (1930).

Although Mrs. Gately was unable to remember whether there had been any agreement with Mr. Giblin concerning the use of the driveway,

a legitimate inference with regard to the beginning of a use may be drawn from events which happened after - even long after - the actual circumstances attending that beginning have been forgotten .....

Truc v. Field, supra at 530. The defendants introduced testimony through Mr. Cronin, their predecessor-in-title, relating to whether the use was permissive. Mr. Cronin testified that when he bought the property at 54 The Arborway Mr. Giblin told him that he had allowed the Gatelys to use the driveway.

The facts of this case are very similar to those in Spencer v. Rabidou, 340 Mass. 91 (1959) where it was found that the permission was more than mere acquiescence and amounted to an implied license. As was said at page 93, "Permission of this character carries authority to do some act or a series of acts on land of another without passing any estate in the land and in its nature is revocable." It seems clear from the events as recounted by Mr. Cronin, a very reliable witness, that Mr. Giblin had granted the Gatelys permission to use the driveway, that Mr. Gately recognized that he had no right otherwise to do so, and that Mr. Cronin continued the permission previously granted. This encounter as detailed by the witness rebuts the presumption of adverse use which arises from the unexplained use of an easement for twenty years.

Once it is established that permission to use the property was granted, there is a presumption that it continues. See MacLeod v. Davis, 290 Mass. 335 , 339 (1935); Truc v. Field, supra at 528; cf. Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass. 305 , 307 (1877). The plaintiffs introduced no evidence that the Gatelys had ever claimed the use of the driveway as of right and therefore failed to rebut the presumption of continued permission. See Robert v. Perron; supra at 541; cf. Bartlett v. Roosevelt, Inc., 258 Mass. 494 , 496 (1927); Hooten v. Barnard, 137 Mass. 36 , 36 (1884).

In the posture which I have taken of the case the question becomes not one of overburdening the easement but of trespass. Before the latter can be shown, however, revocation of the license held by the plaintiffs had to be shown. The earliest evidence of this, unequivocable in nature, is the erection of the fence which effectively terminated any opportunity to trespass, and none thereafter is alleged. I therefore find and rule that the plaintiffs have not trespassed on the defendants' property, and the latter accordingly are not entitled to damages.

The defendants also claim that the plaintiffs' excessive use of the driveway constituted a nuisance since the frequency of the use must be reasonable. Michaelson v. Nemetz, Mass. App. Ct. (1976). [Note 1] If the right is used for the same general purpose as that for which it was granted, and there is no real increase in the burden on the servient estate, it will not be found that additional use results in a nuisance. Baldwin v. Boston & Maine R.R., 181 Mass. 166 , 168 (1902). As the Gatelys were a two-car family at the time the license was granted, any right to use the driveway would have encompassed at least the use of two cars. The maximum number of cars using the driveway at any one time by persons claiming through the plaintiffs appears to have been six. This is not an excessive use resulting in a nuisance. See Gulersarian v. Pilgrim Trust Co., 331 Mass. 431 , 436 (1954); Hodgkins v. Bianchini, 323 Mass. 169 , 173 (1948). That six cars occasionally drive over the driveway to park in the plaintiffs' back yard would not substantially "disturb the peace, comfort, or enjoyment of persons of ordinary sensibilities or unreasonably ... diminish the value of the plaintiffs' property." Swenson v. Marino, 306 Mass. 582 , 587 (1940).

There is one remaining issue in the case. The plaintiffs introduced a series of letters (Exhibit Nos, 2 to 4 inclusive) from counsel for the plaintiffs to counsel for the defendants setting forth the provisions of a proposed agreement between the parties to dispose of the case. Attached to Exhibit No. 3 is a draft of final decree. In fact, such a decree was signed by the parties, but the Court declined to adopt it. Rather it was suggested by court personnel that the signed agreement be treated as a stipulation; thereupon the defendants refused further to recognize their agreement (Exhibit No. A for Identification). It has long been the law that even where a stipulation has been filed in court, the trial court or the Supreme Judicial Court may vacate a stipulation deemed improvident or not conducive to justice. Loring v. Mercier, 318 Mass. 599 (1945); Malone v. Bianchi, 318 Mass. 179 , 182-83 (1945). This particularly is true where, as here, there has been no substantial lapse of time and no change of position. Swift v. Hiscock, 344 Mass. 691 (1962). In the present proceeding the stipulation never was accepted by the Court for filing, and despite the unwavering efforts by the plaintiffs' counsel to have the case determined on the basis of the stipulation, the Court in the exercise of its discretion declined to do so. This refusal has been appealed by the plaintiffs. In addition to the Court's finding that the stipulation was not filed with the Court, the defendants having refused to go forward with it, I find and rule also that it was improvident and not conducive to justice. Moreover, there is a question as to whether this Court has jurisdiction of a complaint for specific performance of the stipulation if it is treated in actuality as a purchase and sale agreement. G.L. c. 185, §l (k). Johnson v. Rosengard, 299 Mass. 375 , 376-77 (1938). Samson v. Coulson, 234 Mass. 288 , 291-92 (1920). Spinelli v. SDM Corporation, et al., Registration Case No. 3984-S.

Judgment accordingly.