STEPHEN A. KOVAR, MADELAINE E. MCAULIFFE, JOHN F. POWER, BARBARA P. POWER, v. MICHAEL G. PETRILLO, JR., HELEN E. PETRILLO, WALLACE R. CHANDLER, MARGARET M. CHANDLER.

Plaintiffs brought this complaint "demanding" that this Court determine the interests of all of the parties in a certain right of way located on the southerly side of Madison Street in Dedham and order 1) the removal of a chain link fence erected in the right of way by defendants Petrillo; 2) the removal of a cedar screen fence and a garden both placed in the right of way by defendants Chandler and the restoration of the garden area; 3) an injunction enjoining all four defendants from preventing the plaintiff from using the right of way and enjoining defendants Petrillo from obstructing the right of way with parked automobiles.

Defendants Chandler answered denying that plaintiffs have any interest or right to use of the right of way. Defendants Petrillo answered also denying that plaintiffs have any right to the use of the right of way, and claim by way of defense, 1) that plaintiff Kovar has lost any rights therein by reason of an abandonment of the right, 2) that the Petrillos have acquired title to the portion of the right of way bounded by their chain link fence through adverse possession, 3) that plaintiff Kovar is guilty of laches, 4) that plaintiff Kovar is guilty of "unclean hands" in that he too has set barriers across the right of way by means of plants and grass, 5) that the necessity for the right of way has been extinguished and further that the Petrillos' use of the right of way does no harm to plaintiff Kovar and 6) that the "Assessor" for the ToWn of Dedham is a necessary party to this action and has not been joined.

A stenographer was appointed to record and transcribe the testimony and the trial was held on the matter on September 6 and 12, 1979. Six witnesses testified and 12 exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. All references to Book and page are to documents recorded in the Norfolk County Registry of Deeds.

Upon all of the evidence the Court finds the facts to be as follows:

1. The right of way in question is shown on a plan of land entitled "Land in Dedham, Mass. drawn by Pilling Engineering Co., Inc. dated May 30, 1978," Exhibit 2, a copy of which with the addition of the words "FRONT" and "REAR" added thereto is attached to this decision as Appendix A and referred to herein for clarity. The right of way is in two parts; the northerly portion herein- after (the "front portion") running between lots 5 and 6 for a distance of one hundred feet is thirty feet wide and the southerly portion, (the "rear portion") bounded by lots 9B, 9A, 10, 11 and 12 is some seventy feet in width at its widest point.

2. Lot 5 is owned by plaintiffs John F. and Barbara P. Power under a deed from Donald R. Smith, Executor under the will of Mabel Smith, dated February 20, 1960 and recorded in Book 3798, Page 435 at the Norfolk County Registry of Deeds. (Exhibit 1, Sh. 23) The description bounds the lot on the west "by the right of way" (the front portion so called) and bounds on the south by Lot 9 which then consisted of Lots 9A, 9B and the so called rear portion of the right of way shown on Appendix A attached hereto.

3. Lot 6 is owned by defendants Michael G. and Helen E. Petrillo under a deed from William A. Smith and Lillian M. Smith dated April 15, 1955 and recorded in Book 3358, Page 457. (Exhibit 1, Sh. 28) This lot is bounded easterly "by the Right of Way", being the front portion thereof. (Appendix A)

4. Lot 9B is also owned by the Petrillos, acquired under a deed from the said Lillian and William Smith dated April 4, 1957 recorded in Book 3727, Page 509 wherein it was conveyed to the Petrillos "together with an undivided half interest in a right of way" as shown on a plan by E. W. Pilling Eng. Co., Inc. dated May 29, 1945. This plan is shown in Exhibit 1, sh. 30 with the lot being the same as shown on Appendix A.

5. Lots 9A and 10 are owned by plaintiff Stephen A. Kovar under a deed from Francis P. Redden dated November 10, 1977 recorded in Book 5405, Page 43, which recited that Lot 10 is conveyed "together with a right of way over said tract marked 'Right of Way' to Madison Street." (Exhibit 1, Sh. 54, Appendix A) Lot B1 as shown, is not here in issue.

6. Lot 11 (and Lot B2 a small lot abutting the southwesterly line of Lot 11 and fronting on Jefferson Street, not here in issue) was conveyed to Jeremiah McAuliffe (now deceased) and plaintiff Madelaine E. McAuliffe by deed of Robert W. Gibb dated October 20, 1961 recorded in Book 3937, Page 648, "together with an undivided interest in the Right of Way shown on [a plan by E. W. Worthington Eng. dated June 3, 1937] running from the granted premises to Madison Street." This plan is shown in Exhibit 1, Sh. 13, the lot being the same as shown on Appendix A.

7. Lot 12 was conveyed to its present owners, Wallace R. and Margaret M. Chandler, by Edward H. Salant and Lee F. Salant by a deed dated August 15, 1974, the description in which included "an undivided one quarter interest in parcels marked 'Right of Way' as shown on [a plan by E. Worthington dated June 3, 1937]." (Exhibit 1, Sh. 13 and Appendix A)

8. The Town of Dedham has an easement to lay and maintain sewer pipes in both the front and rear portions of the right of way as well as over a strip ten feet in width running along the border of Lots 10 and 11, under an instrument of taking dated September 28, 1939 recorded in Book 2246, Page 561. (See Appendix A and Exhibit 11)

9. On the first day of trial it was stipulated (although on what basis and for what purpose the Court does not know) that plaintiff Kovar holds a three eighths undivided interest in the fee to the right of way; defendants Petrillo hold a one-eighth undivided interest in the said fee to said right of way; plaintiff McAuliffe holds one quarter undivided interest in the said fee to the said right of way; and defendants Chandler hold a one quarter undivided interest in the fee to the right of way.

10. The front portion of the right of way is paved, although in poor condition, for about twenty-four feet of its thirty foot width from the west side line of Lot 6, southerly for some 80 feet and then the pavement narrows to the line of the rear right of way. The area of the rear right of way and of Lot 10 up to and immediately in front of the Kovar garage had been paved in the past but is now overgrown by grass. The Kovar garage on Lot 10 is attached to the house and opens to the rear of the Kovar house towards Madison Street. There is no driveway from the Kovar garage out to Jefferson Street which the house faces. The driveway extends from the garage through the "rear" and then the "front" portion of the right of way to Madison Street.

11. Shortly after plaintiff Kovar purchased his house and after he used the driveway at least once, the defendants Petrillo erected a chain link fence along the southeasterly boundary of Lot 9B, extending it southeasterly into the rear right of way approximately twenty-five feet and then running it northerly to a point in the front right of way about two feet distant from the westerly line of Lot 5. Thence the fence runs along a line about 2 feet west of the easterly line of the front right of way to Madison Street. (Appendix A)

12. Shortly thereafter defendants Chandler erected a cedar fence in the rear right of way southeasterly along the northwesterly boundary of Lot 11 and thence turning at almost a right angle and running northwesterly to the southwesterly angle of the Petrillo fence. (See Appendix A) A gate was put in the fence and a garden planted in the enclosed area.

13. Defendants Petrillo have torn up part of the pavement and have planted flowers in the portion of the rear right of way abutting their Lot 9B. They have from time to time made repairs to parts of the pavement in the front right of way alongside their Lot 6 and before the erection of the fence have parked cars there obstructing passage over the front right of way.

14. Plaintiff Kovar was and is prevented by both of these fences and the garden planted therein from using the right of way to gain access to and from his garage and Madison Street.

The Court finds and rules that plaintiffs Kovar and McAuliffe and defendants Petrillo and Chandler have by grant rights in common to use the entire right of way to Madison Street as shown on Appendix A; that the right of way was clearly and explicitly depicted in the plans referred to in each of their deeds and each has a right to travel over the whole of its width; See Onnati v. O'Donnell, 3 Mass. App. 739 (1975), Guillet v. Livernois, 297 Mass. 337 , 340 (1937); that plaintiffs Power own in fee the land on the easterly side of the center line of the front right of way and have an easement for passage along the entire width of the front right of way. See Casella v. Sneierson, 325 Mass. 85 (1949); M. G. L. c. 183, §58.

Although plaintiffs Kovar and McAuliffe and defendants Petrillo and Chandler have allocated among themselves fractional shares of the right of way their interests are nevertheless "undivided". No one of them may impair the rights held by the others to the use of the whole right of way.

Defendants Petrillo contend that they have acquired by adverse possession that portion of the right of way enclosed by their chain link fence in 1978. There is no evidence that prior thereto the Petrillos actually, openly, notoriously and exclusively held the property hostile to the interests of any other for any period of time, let alone the requisite period of twenty years. See Ryan v. Stavros, 348 Mass. 251 (1964). Furthermore, from the scant evidence of the Petrillos' use of the right of way, consisting as it does of sporadic maintenance, it cannot be concluded that this use was not acquiesced to by the others who held interests in the right of way. There has been no proof of adverse possession by defendants Petrillo.

Nor has there been any evidence submitted to support defendants Petrillos' claims that the plaintiffs are guilty of laches and unclean hands or that plaintiff Kovar's interest has been lost by abandonment.

The Petrillos also allege as a defense that the necessity for the right of way has been extinguished and that therefore no right of plaintiff Kovar is impaired. This is not a right of way by necessity and thus the claim is contrary to the well settled law that "an express easement can be extinguished only by grant, release, abandonment, estoppel or prescription", Emmery v. Crowley, 371 Mass. 489 (1976), none of which are shown here.

Finally, the Court finds no merit in the Petrillos' defense that the Assessor of the Town of Dedham (presumably they mean the Town) is not a party to the suit. Whatever the rights of way held by the parties herein may be they are subject to the easement held by the Town. Nor is the extent to which each of the parties is taxed for the right of way here in issue.

The Court rules that plaintiff Kovar, plaintiff McAuliffe, defendants Petrillo and defendants Chandler each has an easement to use both the front and rear rights of way shown on Appendix A together with and subject to the rights of the Town of Dedham to both front and rear rights of way as set forth in the instrument recorded in Book 2246, Page 561. Further, the Court rules that defendants Petrillo and Chandler had no right to erect fences, plant gardens and otherwise use part of the rights of way for their own express purposes thus prohibiting its use by plaintiff. Plaintiffs Power have an easement to use the front right of way together with and subject to the right of the Town of Dedham as set forth in the above mentioned instrument of taking.

The Court orders defendants Petrillo to remove the chain link fence and the defendants Chandler to remove the cedar fence erected by them in the right of way. In addition the Court orders both defendants to remove any garden planted in the right of way insofar as it obstructs passage. The Court is confident that it will be unnecessary to issue an injunction enjoining defendants from interfering with plaintiff Kovar's right of way expecting as it does that all of the parties involved herein will respect each others interests and refrain from blocking free passage of the right of way.

Judgment accordingly.

Exhibit 1