MISC 99754

May 5, 1981

Norfolk, ss.



Richard Maccini, a resident of 144 Cypress Street in Brookline in the County of Norfolk, has brought this complaint against Leo J. Motsis of Boston in the County of Suffolk and Socrates J. Motsis of said Brookline, owners of the property at 10 East Milton Road in said Brookline which adjoins the plaintiff's land at the rear of the plaintiff's back yard. The plaintiff claims to own all the land within the fences presently enclosing his back yard, in part by adverse possession, and seeks to have the defendants permanently restrained from interfering therewith. The plaintiff also seeks to have the defendants restrained from trespassing on the plaintiff's land, to have this Court determine that the right of way referred to in a deed from Alexander Strain et al to Charles E. Williamson, dated September 11, 1911 and recorded with Norfolk Deeds, Book 1189, Page 342 (Exhibit No. 2) has been extinguished, and to have damages awarded together with reasonable attorneys' fees and cost. The defendants claim that they have a right, as appurtenant to their property on East Milton Road in said Brookline, to a right of way from their property to Cypress Street as provided in the deed from Strain to Williamson, that the plaintiff has made an unauthorized entry on the defendants' property and continues to so use it and has obstructed the defendants' access to Cypress Street with a gate in the fence between the respective lands of the plaintiff and the defendants. The defendants in their counterclaim seek to restrain the plaintiff from entering on their land and from interfering with the defendants' use of the right of entry onto the land of the plaintiff; the defendants also pray that the plaintiff be ordered to remove the gate and shrubbery obstructing the entry, that the defendants be awarded damages consisting of three times the value of the wood taken from their property bythe plaintiff, and in addition, money damages in lieu of the removal of the gate and shrubbery.

The plaintiff acquired title from Wing Yock Chin and his wife to the premises now known as and numbered 144-146 Cypress Street by a deed dated January 27, 1978 and recorded with said Deeds, Book 5431, Page 592 (Exhibit No. 6). The deed recites that the granted premises are Lot 1 and part of Lot 2 on a plan entitled "Plan Showing Subdivision of Land in Brookline, Mass., for Charles E. Riley, Esq.," dated July 18, 1904 by French and Bryant recorded with said Deeds, Book 38, Plan 1762, which plan was introduced as Exhibit No. 8. The deed to the plaintiff further recites that the part of Lot 2 which comprises the granted premises is shown as Lot C on a "Plan of Land in Brookline, Massachusetts by Henry F. Bryant," dated August 31, 1911 and recorded with said Deeds, Book 1189, Page 341, which plan is Exhibit No. 3. Finally, the deed recites that the conveyance "is made subject to the right of way set forth in deed from Alexander Strain and Hannah Strain to Charles E.Williamson, dated September 11, 1911 and recorded with Norfolk Deeds, Book 1189, Page 342, so far as now in force and applicable."

The defendants acquired title from James L. Tait, Jr., Executor and others by deed dated April 26, 1978 and recorded with said Deeds, Book 5460, Page 613 (Exhibit No. 7). The premises described in the deed to the defendants included Lot 4 on said July 18, 1904 plan (Exhibit No. 8) and Lot A on the Bryant plan dated August 31, 1911 (Exhibit No. 3).

The problem which the Court must decide is shown most clearly on Exhibit No. 1 and Chalk A. Exhibit No. 1, a copy of part of which is attached to this decision as Appendix "A", is a plan prepared by John F. Hennessy in accordance with Land Court instructions and shows the land owned of record by the plaintiff. The property lines of record have been outlined in red on Appendix "A" to make the record ownership of the plaintiff clear. There is no dispute about such lines. The dispute, so far as the property boundaries are concerned, covers an area 28.92 feet in length and approximately 3.82 feet at its westerly terminus and 3.65 feet at its easterly end to which the plaintiff claims to have acquired title by adverse possession. This parcel of land is located between the fence and the plaintiff's southerly line of record, all as shown on Appendix "A". Notations in ink on Appendix "A" have been added by the Court.

The other issue in the case concerns the right of the defendants to pass from their property to Cypress Street. Appendix "B" to this decision was introduced at the trial and marked Chalk A; it is a mortgage survey plan which shows the location of the record right of way referred to in the deed from Strain to Williamson. The defendants claim that in fact the way which has been used crosses additional land of the plaintiff shown as Lot 1 on Appendix "B" or alternatively is within the area whose ownership is in dispute. The defendants object, as an interference with the use of their right of way, to the gates which the plaintiff has placed in the location shown on Exhibit No. 1 (and Appendix "A") and claim that they have a right to pass from their property through the plaintiff's yard, then through an area where there is now a chain link fence, and on out to Cypress Street.

A trial was had at the Land Court on December 17, 18 and 30, 1980 and January 27, 1981 at which a stenographer was appointed to record the testimony. A view was taken by the Court in the presence of counsel on December 30, 1980. On all the evidence I find and rule as follows:

1. The plaintiff's house is a large three story house fronting on Cypress Street with a shop in the front and three apartments. This property is now known as and numbered 144 to 146 Cypress Street. To the right of the house as one stands facing the property is a paved parking area extending from the house to a chain link fence at the boundary between land of the plaintiff and an abutter. The parking area is approximately fifty-eight feet in depth. The property consists of Lot 1 on Exhibit No. 8 and Lot C on Exhibit No. 3. It is completely enclosed with fences except that there is no fence at the line of the sidewalk on Cypress Street, the fence in that area instead being set back at the end of the parking area with a gate therein close to the house and except also that the so-called "patchwork" fence, which runs between Lot 1 and Lot A in a direction perpendicular to Cypress Street for a distance of about twenty-nine feet to the defendants' westerly boundary line, is about four feet southerly of the record line. There also is a fence on the easterly line of the plaintiff's land which separates his back yard from that of the defendants. There is a gate in the fence which straddles the record property line.

2. East Milton Road runs perpendicular to Cypress Street. The defendants' house is a large three family house which almost completely occupies Lot 4 on Exhibit No. 8. The defendants also own Lot A on Exhibit No. 3. The defendants' house faces East Milton Road so that the rear porch and back stairs are located just behind the plaintiff's back yard. The defendants' house was damaged by fire sometime in the late 1960's or early 1970's, and it has never been completely restored. The defendant Socrates, his wife and son live at 10 East Milton Road, but his brother Leo, a co-owner, resides in Boston. There is a concrete walk leading from East Milton Road along the westerly side of the house to the back door affording easy access to East Milton Road.

3. Adjacent to the defendants' house lot is said Lot A. There is appurtenant to it the right of way granted in the 1911 deed from Strain to Williamson in which this language appears:

with a right of way for foot passage only over a three foot passageway beginning at the northwesterly corner of said lot and running west in a straight line fifty seven and 92/100 (57.92) feet to said Cypress Street as shown on a plan to be recorded herewith by Henry F. Bryant dated August 31st 1911, said lot being marked lot A on said plan.

It is on the language of this deed that the defendants rely for the easement by which they claim the right to pass from their back door to Cypress Street. The defendants' premises were conveyed to them by the executor of the will of Susan M. Tait and Mrs. Tait's children. Mr. Tait, who predeceased his wife, was the nephew of Mrs. Williamson.

4. While the language quoted above suggests that the right of way is shown on the 1911 Bryant plan (Exhibit No. 3), in fact it is not. Presumably it is to Lot A that the phrase refers as different punctuation would make clear. It is contended by the plaintiff that the language is ambiguous, but it is without mystery to the Court. It seems clear that the three foot wide footpath runs of record from the westerly line of Lot A in a straight line westerly to Cypress Street, bounding northerly on Lot 1. Where it in fact is located on the ground as interpreted by the parties and their predecessors is another matter. Chalk A illustrates the placement of the lots and the three foot wide way as they appear on the records. The way has also been indicated by the Court on Appendix "A".

5. What is a mystery is the reason for the creation of the footpath. The deed (Exhibit No. 2) by which it was established provided that no building was to be erected on either Lot A or Lot C; while the restriction now has expired, it negates any intentions of the parties that the footpath was to provide access to a house to be built on Lot A. The footpath, so far as appears, has been used only in conjunction with Lot 4, the defendants' house lot.

6. In proving his chain of title at the trial, the plaintiff did not go back to the deed into Alexander and Hannah Strain, the grantors in Exhibit No. 2. It does appear, however, from recitals in Exhibit No. 4, a deed from David J. Casey and Wife, dated January 21, 1958 and recorded with said Deeds, Book 3615, Page 251 that 144-146 Cypress Street remained in the Strain family to 1950 when it was conveyed to said Caseys who in turn sold the premises to Rocco A. Botta and Loretta A. Botta. Rocco A. Botta, an unwilling witness at the trial, testified that he purchased the premises for investment and may never have seen them. In any event, he displayed no familiarity with them, and his evidence was not helpful. The Bottas conveyed the premises to Wing Yock Chin and Wife by deed dated March 6, 1961 and recorded with said Deeds, Book 3880, Page 366 (Exhibit No. 5). The latter grantees were the plaintiff's grantors.

7. There was no evidence as to use made of the footpath by occupants of the East Milton Road house prior to the early 1940's. Sometime in this time frame Mr. James Tait, who worked in a local cemetery and cut lawns in the afternoon, would pass to and from his house and Cypress Street by the short cut here in issue. One of his daughters, Carol Tait McDonald, now a Brookline policeĀ­ woman, was born in 1943, the year her parents bought their home, and left home in 1961. She testified that she, her family and friends, and the second floor tenants used the back entrance of the 10 East Milton Road house and proceeded via what is now the plaintiff's yard to and from Cypress Street. Her use of the footpath continued until about 1973, but it was interrupted during the period from 1966 to about 1969 hereafter discussed. Mrs. McDonald's sister, Betty, and her friend Maureen Carter also made use of this short cut, the latter testified.

8. Mr. Alberto Alzamora, son-in-law of Mr. Chin, testified that he had owned the dry cleaning business in the Cypress Street building and had lived in one of the apartments from 1965 to 1977. He owned a dog which he kept in the yard so it was he who put a gate in the fence and kept it locked from 1966 to approximately 1969 when the fire in the Tait house led to a fire department request that the gate be unlocked. He testified that there also was a fence closer to the street at the edge of the parking area which by this time (1965 to 1977) was paved, witnesses having testified it was earlier dirt. He also put a gate adjacent to the house in this fence. Mr. Alzamora also stated that there was a large oak tree in the parking area which appeared to be in the area where the record right of way was located. He had observed that the route followed by pedestrians was a straight line from the steps of the East Milton Road house, through the plaintiff's yard to the gate, through it and down the side of the house. One of the tenants in the Tait house used this route to drop into the business and visit with the witness. After the gates were locked, the neighbor followed the more conventional approach from his apartment down East Milton Road to Cypress Street and along it to the shop. At some time there apparently was a fence at the Cypress Street side line with a space between it and the building wide enough for cars to enter. It seems, but it was not completely clear, that this was prior to the installation of the fence closer to the back yard. It also was Mr. Alzamora who made the repairs to the fence between Lot A and Lot 1 during the years he resided on the property. It was these repairs which led to this fence being dubbed with the colloquial name of "patchwork" fence during the trial.

9. Mr. Chin testified that he had the fence along the rear lot line of the plaintiff's land installed about 1961 or 1962. He also remembered in this time frame the underground garbage receptacle which had been placed in the ground and shown on his sketch (Chalk B). The patchwork fence between Lot A and Lot 1 was there when he bought the property in 1961 and appears to have predated his acquisition by many years. Mrs. McDonald did not remember the fence, but it was her recollection that there were hedges in the area and rose bushes, both ramblers and bush varieties. Her father tended those, but she was uncertain as to who planted them or how long they had been there. None were apparent to the Court at the view. Mr. Tait also had tomato plants in front of the rose bushes. It is difficult to reconcile this account of Mr. Tait's activities with the present situation on the ground. The logical thing would have been for the Tait plantings to have been on the far side of the fence on the lot which he owned and for the patchwork fence to have been closer to the record boundary. However, over the years it seems to have assumed the character of a boundary and has so been considered for more than twenty years. Since he acquired the property, the plaintiff has put in small plantings along the patchwork fence on the side toward his house and made his yard an attractive haven.

10. After Mr. Alzamora removed the locks in the gates as requested by a representative of the Brookline fire department, Mrs. Tait at least occasionally used the footpath, and the defendants on a few occasions have done the same. The evidence suggests, however, that the use was very occasional during the decade of the 1970's and had virtually ceased.

11. The southeasterly corner of the plaintiff's house on Lot 1 is located 4.80 feet from the northerly line of Lot A. The record footpath therefore lies about 4.80 feet southerly of the house and runs from Lot A across Lot C to Cypress Street. It is approximately the same width as the area of the yard in dispute between the plaintiff and the defendants, but technically it lies only on plaintiff's Lot C and only for access to the defendants' Lot A, not to their house lot.

The foregoing summary makes it apparent that the use made by the predecessors in title of the parties, at least during the years as to which any evidence was introduced in the present proceedings, did not accord with the records. The grant of the foot passageway in 1911 was appurtenant only to Lot A. Accordingly, in using it to pass to and from the defendants' house the defendants and their predecessors have overloaded the easement. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679 (1965). Moreover, the evidence establishes that the owners of the dominant estate and those claiming under them proceeded between Cypress Street and 10 East Milton Road via a route that fell into a straight line from Cypress Street adjacent to the plaintiff's house, across his yard to the defendants' back steps. If the record rights had been adhered to, the route would have been about five feet southerly and would not have extended beyond the westerly line of Lot A. From the evidence in the case it therefore appears that the parties have by their conduct in effect relocated the way. Whether it is viewed as an interpretation by the parties of ambiguous language in a deed or the acquisition of a prescriptive right of foot passage as appurtenant both to the defendants' Lot A and Lot 4, the defendants have proved that they have a three foot right of way across land of the plaintiff. The plaintiff argues that the easement was personal to the original grantee and did not run with the land; he rests his argument on the absence of the words "heirs and assigns," but they appear where they should-in the habendum. See Kenney v. Marino, 350 Mass. 534 (1966).

In order to establish an easement by prescription it must be shown that the use has been "open, uninterrupted and adverse for a period of not less than twenty years." Tucker v. Poch, 321 Mass. 321 , 323-24 (1947). G. L. c. 187 Ā§2 . The unexplained use of an easement for twenty years will be presumed to be under claim of right and adverse, and is sufficient to establish title by prescription. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762-63 (1964). The evidence of use of the foot passage by defendants' predecessors for more than twenty years meets the burden of proving this prescriptive right. More than twenty years had run when Mr. Alzamora blocked its use for about three years. Use was resumed in 1969 or 1970, and no showing of facts sufficient to prove abandonment or alternatively of elimination by the plaintiff's adverse possession was made. As to the latter, it is clear that the short cut was not blocked for the statutory period. Abandonment is a closer question, but it is settled that mere non-user of itself does not constitute abandonment. It is a question of intention which can be shown by conduct evidencing an intent never again to use the easement. Parlante v. Brooks, 363 Mass. 879 (1973); Sindler v. William M. Bailey Co., 348 Mass. 589 (1965); and Lemieux v. Leather Finishing Corporation, Mass. App. Ct. (1979). [Note 1] The evidence here falls short of showing any such conduct.

To hold that the defendants have a prescriptive right of way, however, does not mean that the plaintiff cannot keep the gates locked so long as a key or combination is furnished to the defendants (as has already been done). Merry v. Priest, 276 Mass. 592 , 600 (1931), is authority for the proposition that the servient owner retains the use of his land for all purposes consistent with the rights of the dominant owner which in an appropriate case may include locked gates.

Just as the defendants have shown a prescriptive right to use the three foot passageway, the plaintiff has borne his burden of proving title by adverse possession to the small area within the patchwork fence and without the plaintiff's record title.

Title claimed by adverse possession "can be sustained only by proof of open, adverse, exclusive, continuous and uninterrupted possession under claim of title for the requisite period of twenty years." Town of Nantucket v. Mitchell, 271 Mass. 62 , 68 (1930); accord, Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); McDonough v. Everett, 237 Mass. 378 , 383-84 (1921). Whether the parties were mistaken or not as to where the boundary would fall when the deeds were applied to the land is immaterial. Jordan v. Riley, 178 Mass. 524 , 525 (1901); accord, Boston & Worcester R.R. v. Sparhawk, 5 Met. 469 , 474-75 (1843). And it is significant that the Brookline neighborhood where the plaintiff and Socrates Motsis live is highly developed and the lots postage stamp size. This is important in establishing the nature and extent of occupancy required for adverse possession. Lachance v. First National Bank & Trust Co., 301 Mass. 488 (1938). The evidence as to the plaintiff's boundaries compels a finding that he has acquired title by adverse possession to the disputed rectangle.

On all the evidence I therefore find and rule:

1. The defendants have acquired, either by adverse possession or by interpretation of the parties over the years, a right of way three feet in width to pass on foot to and from the premises at 10 East Milton Road and Cypress Street in a straight line, in common with all others entitled. Said way is approximately shown on Appendix "A" hereto.

2. The use by the defendants and those claiming under them of said way is to be exercised in a reasonable manner and at reasonable times and without interference with the rights of the plaintiff.

3. The plaintiff may keep the gates in the fences locked so long as a key or the combinations to the locks, as the case may be, are furnished to the defendants.

4. The plaintiff has acquired title by adverse possession to so much of the defendants' land as is shown in red on Appendix "A".

Both the plaintiff and the defendants have filed requests for rulings. The decision of the Court is controlling on any questions raised by the requests. To the extent not inconsistent herewith the plaintiff's requests 1, 2, 4 and 5 are granted and 3 is denied. To the extent not inconsistent herewith the defendants' requests 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11 are granted and requests 6 and 12 through 30 inclusive are denied. The Court has assumed for purposes of this dispute between the present parties that the plaintiff and the defendants own their respective properties.

Judgment accordingly.

exhibit 1

Appendix A, Sheet 1

exhibit 2

Appendix A, Sheet 2

exhibit 3

Appendix B


[Note 1] Mass. App. Ct. Adv. Sh. (1979) 730.