ROLAND D. GLENN vs. ORREN S. POOLE, RICHARD M. POOLE, LOUISE B. POOLE, GLADYS B. GALE, TOWN OF ROCKPORT and COMMONWEALTH OF MASS.

Roland D. Glenn filed a petition with the Land Court on November 4, 1975 to register and confirm title under the provisions of G. L. c. 185, § 1, to a certain parcel of land (locus) on Thatcher Road in Rockport containing 22.681 acres, more or less, as shown on the filed plan. [Note 1] Petitioner denies the right of anyone to use the "gravel" .road or "wood" road, both shown upon the filed plan and on Appendix A and seeks to have these roads eliminated so that petitioner may register his land free from any rights of way.

The Commonwealth withdrew its objection upon the filing of a stipulation between the parties that the registration be made subject to the rights of the public in the saltwater marsh and creek shown on the plan. Respondent Gladys C. Gale withdrew her objection. Orren E. Poole filed an appearance for himself but no answer. Richard M. Poole and Louise B. Poole and the Town of Rockport filed answers claiming easements over both the gravel road and the wood road by adverse possession. The Town and petitioner submitted a stipulation on January 22, 1980 providing among other things that the populace of the Town has a right to use the gravel road for foot travel and that vehicles used for town business may be driven over the gravel road except that "vehicles owned or operated by Richard Poole, ...his agent, employees or family members" may not be driven over the road. Respondent Poole brought a motion to strike the stipulation on January 24, 1980 and after a hearing on February 1, 1980, the motion was allowed and the stipulation striken. The Town of Rockport and petitioner then filed further memorandums on February 4 and 5, 1980.

A stenographer was sworn to take and transcribe the testimony. The case was tried onNovember third and eleventh, nineteen hundred and seventy-eight and July ninth and eleventh, nineteen hundred and seventy-nine. Forty-five exhibits were introduced and are incorporated herein for the purpose of any appeal. A view of the area was taken by the Court on December 17, 1978 with counsel for both parties present.

The first question to be resolved in the case is whether or not the petitioner may register his land free from any rights of way. If it is decided that there are indeed prescriptive rights existing over the ways, the next question is whether or not the easement has been overburdened. The respondents Poole and the Town claim rights of way by prescriptionover both the "gravel" way and the "wood road" as shown on Appendix A.

The Court finds the following facts:

1. Petitioner Glenn acquired title to four acres of the locus by a deed from A. Webster Day to himself and another co-tenant dated August 28, 1951 recorded in Book 3882, Page 508 in the Essex South Registry of Deeds. [Note 2] (Exhibit 5). The co-tenant in common conveyed his interest in these four acres to petitioner November 11, 1962 by a deed recorded in Book 5089, Page 236. (Exhibit 4). The balance of the locus was conveyed to petitioner by Ruth E. Mills July 5, 1963 in a deed recorded in Book 5089, Page 239. (Exhibit 6).

2. The locus, consisting of open woodland, is as shown on the filed plan and Appendix A. A "gravel road" as shown runs in a south-westerly direction from land shown as of Orren s. Poole on the northeast to Thatcher Road on the south, intersecting Thatcher Road approximately fifty feet east of a salt marsh included in the locus sought to be registered. A "wood road" as shown runs southeasterly from a point in the gravel road two hundred feet south of the Poole property and then easterly until it intersects Thatcher Road at the southeastern corner of the locus.

3. Respondent Richard Poole obtained a zoning variance from the town of Rockport on May 26, 1972, "for the construction of a building to be used as a garage and repair shop measuring 60 feet by 100 feet ..." and for a storage area immediately adjacent to said building on land shown as of Orren S. Poole on Appendix A. This variance was granted subject to six conditions. From a reading of these conditions it is obvious that the variance was granted in return for the Pooles ceasing to use other land owned by them on Thatcher Road east of the locus for the operation of a business and the storage of equipment. One of the conditions expressly forbids the use of a way from Thatcher Road to the premises, leaving as the only means of access to the Poole land the ways in question here through Glenn's land and a possible way in from the north. The petition for variance states that notice was given in accordance with statutory and by-law requirements but petitioner Glenn denies ever receiving notice.

4. The Pooles erected the garage in 1972 on the parcel shown as that of Orren S. Poole on Appendix A.

5. The Court on the view taken on a very cold December day observed the garage, the barn and the adjacent area. Broken down trucks of various vintages including a school bus and some old trailer bodies, were strewn about the area. The Court can well imagine the relief of the zoning Board of Appeals to get these off the main street and into the woods, as it resembles a car wrecking yard with some animals wandering about.

6. In 1972 and thereafter the gravel road was greatly improved by the respondents. On the day of the Court's view the road was found to be a well gravelled 20 odd foot wide road, quite passable by large trucks and other vehicles from its intersection with Thatcher Road along the entire distance of the way to respondents' property.

7. The view likewise showed the "wood road" on Appendix A to be little more than two barely distinct tracks over the forest floor, skirting rock outcroppings and going up, over and then down hill from the gravel road in a general easterly direction to Thatcher Road. This road has seen little or no use for many years.

8. The Court finds that the Pooles, grandfather, father and son (all of whom testified)used the gravel road from early in this century as a means of access to their land to the north of locus. The Pooles cut wood on their land, first hauling it out by horse and later by truck from at least 1920 on. Some sporadic farming was carried out. For a period of time a gravel pit was in operation and the gravel sold; now it is retained for their own use. From the late thirties a construction and snow plowing business has been and is still being carried on by the Pooles with the way used as access to the back land for the storing of equipment. The gravel road has seen a great change from the tracks through the forest to the 20 plus foot, heavily gravelled way of today, capable of accomodating large tractor trailer trucks without difficulty. The Pooles have improved the road using gravel from their own land to do so, and installed a pipe to insure proper drainage from the road into the marsh in an area about fifty feet in from Thatcher Road. Its use has markedly increased from the granting of the variance in 1972.

9. The Court finds that the town has used the road likewise for many years as access tothe back land for fire fighting and other purposes. The town fire chief travelled the road with heavy equipment at various times fighting forest fires, particularly a noted fire in 1969, finding the road rough but passable. Other use has been made by the citizens of the town to gain access to the thickly forested area to the north of locus.

To acquire an easement by prescription it must be shown that the easement claimed was used in an actual, open, notorious and adverse manner for a continuous period of twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). And as here, where there has been the use of an easement for twenty years unexplained, it will be presumed to be under the claim of right and adverse, and will be sufficient to establish title by prescription unless explained or controlled. Flynn v. Korsack, 343 Mass. 15 , 18 (1961)

The Court rules that the Pooles and the Town have sustained their burden of provingprescriptive rights over the "gravel" way shown on Appendix A.

With regard to the "wood" road the Court finds that there is insufficient evidence uponwhich to conclude that respondents have acquired any rights over it by prescription. On its view the Court observed that the "wood" road is a very narrow, rutted track over the forest floor. It has obviously seen significantly less use than the "gravel" road and is now barely passable by a four-wheel drive vehicle. There is scant testimony concerning respondents' use of this road. The Court therefore finds and rules that respondents have not acquired an easement by prescription over the wood road.

Left to be resolved is the question as to whether or not the way has been overburdened.

The extent of an easement by prescription, unlike an easement by grant, is fixed by the use through which it was created. Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962). This rule is not applied with absolute strictness, Tiffany Real Property, 3rd Ed., § 1209. It has been held that the nature of the right is not to be determined by the actual proved use alone, but by that in connection with the circumstances. Baldwin v. Boston & Maine R.R. Co. , 181 Mass. 166 , 168 (1902). The use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest. Restatement, Property 447, Comment 6, Lawless v. Trumbell supra at 563.

Applying these principals the Court finds and rules that the respondents acquired their easement originally by using oxen, trucks and tractors to haul wood, and to a lesser extent gravel and farm animals over the "gravel" road. Commencing in the 30's the respondents used the road for a general construction and snow plowing business which has expanded over the years. Many of their vehicles are stored in the area and others kept there for cannibilization for spare parts. The respondent's rights acquired by their particular use of the "gravel" road can be construed to include their present use of the way. The variation in use is moderate and is consistent with the general pattern formed by the adverse use. See Lawless v. Trumbell supra at 563.

While respondents recent use of the easement has doubtless caused the petitioner some annoyance it does not appear to be so substantial as to be unreasonable. Respondents have not exceeded any privilege shown to have been acquired.

Once the easement was created every right necessary for its enjoyment is included by implication. Hodgkins v. Bianchini, 323 Mass. 169 , 173 (1948). The respondents' placing of the drainage pipes and improvements to the surface of the "gravel" road do not appear to be an unreasonable exercise of this right. The right to use the road includes the right to make reasonable repairs and improvements. Hodgkins v. Bianchini, supra at 173. Guillet v. Livernois, 297 Mass. 337 , 340 (1937). The Court rules therefore that the respondents use of the gravel road does not amount to a new servitude and does not overload their acquired easement.

Petitioner has filed eight requests for rulings of law. Requests numbered 2 and 3 are allowed. All others are denied as inaccurate, immaterial, inapplicable or contrary to law. Petitioner has also filed ten requests for findings of fact. The Court grants numbers 1 and 7. The Court grants number 8 but qualifies its grant by stating that the location of this way is uncertain. It denies all other requests.

Respondent has filed thirteen requests for "Findings of Fact and Conclusions of Law".Requests numbered 1, 2, 3, 10 and 11 are allowed. All others are denied.

The Court rules that the petitioner is entitled to register the locus shown on the filed plan (and on Appendix A) subject to the right of way of the respondents' Poole and of the Town of Rockport in the "gravel" road but free from any rights of way in the "wood" road and also subject to any matters disclosed by the examiners report and not in issue here.

Decree accordingly.

exhibit 1