Plaintiffs brought this verified complaint (later amended ) pursuant to G. L. c. 231A seeking a declaration that plaintiffs haveacquired an easement by prescription over a driveway that runs between the parties' land by virtue of adverse use by the plaintiffs for twenty-five years. Plaintiffs allege that the defendants' blocking of the entrance of the driveway has prevented the plaintiffs from using it and constitutes an actual and serious controversy. Plaintiffs further allege that defendants are encroaching and trespassing on the plaintiffs' land.
Defendants Chan answered that the paved driveway has been used by the plaintiffs and plaintiffs' predecessors in title, but that such use was permissive. [Note 1] Defendants further answered that, although they have prevented plaintiffs from using the portion of the driveway that is on defendants' land, they are not interfering with plaintiffs' use of their own land. Additionally defendants denied that their use of the driveway causes them to trespass on plaintiffs' land.
A trial was held on December 4, 1981 and a stenographer was sworn to record the testimony of eight witnesses. Eleven exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.
On all the evidence, I find the following facts:
1. Plaintiffs, Michael C. Connors and Kathleen F. Connors (Connors), are record owners of land and the buildings thereon located at 121-123 Atlantic Street, Quncy, by deed from Alan G. Marcou and Barbara M. Marcou, recorded December 13, 1977 in Book 5416, at Page 494 in Norfolk County Registry of Deeds [Note 2] (Exhibit No. 6).
2. Defendants, Chi Ping Chan and Chow Ping Chan (Chan), are record owners, as tenants in common, of land and the buildings thereon, adjacent to the Connors, located at 125-127 Atlantic Street, Quincy, by deed from Mary C. Jope Harding, recorded July 28, 1980 in Book 5758, at Page 166 (Exhibit No. 10).
3. The common lot line between the plaintiffs' and defendants' land is located within the paved driveway which is approximately seven and one-half feet wide at its street entrance.
4. At the entrance to the driveway, leading from Atlantic Street, 7.3' - 7.4' of the driveway is on the defendants' land and 1.1' - 1.5' of the driveway is on the plaintiffs' land. (Exhibit Nos. l and 2).
5. The driveway leads to rear yards behind both houses. There is a parking area and garage on the Chans' property and a parking area on the Connors' property.
6. Plaintiffs and their predecessors in title and their respective tenants have been using the driveway since at least 1956 when the owners of 121 - 123 Atlantic Street were Glendon M. Crowell and Marjorie A. Crowell.
7. The Crowells used the driveway daily for access to their rear parking area from 1956 until they sold it in 1962. During that six year period, the Crowells shoveled snow, raked leaves, and generally contributed to the maintainance of the driveway.
8. During the Crowell's ownership of 121 - 123 Atlantic Street, the defendants' property was owned by Charles and Frances Pasquariello. The Pasquariello's became record owners of 125 - 127 Atlantic Street by deed from Paul T. Haran and Sophia A. Haran, recorded on September 6, 1955 in Book 3403, at Page 268.
9. The Crowells and the Pasquariellos had a friendly relationship and at least Mr. Crowell never had any conversation with the Pasquariellos regarding the ownership of the driveway. [Note 3]
10. By deed recorded March 22, 1962 in Book 3972 at Page 138, the Crowells conveyed the property at 121 - 123 Atlantic Street to Allen E. Marcou and Anora Marcou and John E. Marcou, Allen's parents, (Exhibit No. 4).
11. On October 5, 1962, following Allen's marriage, the property was conveyed to Allen E. Marcou and Barbara M. Marcou, tenants by the entirety, by deed recorded in Book 4022 at Page 634. (Exhibit No. 5).
12. The property was vacant from March until June when Allen and Barbara Marcou moved in. Before moving in, Allen renovated the house on weekends, using the driveway to transport materials and supplies.
13. The Marcous owned the property at 121 - 123 Atlantic Street until 1977, during which time they lived on the second and third floors of their two family house.
14. During this period of time, the property at 125 - 127 Atlantic Street was owned by Marie Jope and her daughter Mary.
15. The Marcous owned one car and they and their tenants used the driveway daily for access to the parking spaces behind the house until sometime in the Winter of 1963 when the Marcous and the Jopes had a disagreement about the Marcous use of the driveway.
16. The testimony of Mr. Marcou and Mary Jope Harding varies considerably concerning the precise nature of the disagreement, but I find that as a result of the disagreement, both Mr. Marcou and Ms. Jope understood that the Marcous were not allowed to use the driveway.
17. Consequently, Mr. Marcou installed a metal and chicken wire fence from Atlantic Street back approximately 30 feet, blocking everyone's access to the driveway.
18. Approximately three months later, the Marcous went to the home of Mary and Marie Jope to discuss the driveway. There was agreement that the problem with the driveway has gone on long enough and an understanding as to the common use of the driveway was reached. As a result of this conversation, Mr. Marcou took the fence down and the Marcous and their tenants continued to use the driveway daily until they sold the property to Kathleen F. and Michael C. Connors, by deed recorded December 13, 1977 in Book 5416 at Page 494.
19. From 1964 or 1965 until 1980 Mary Jope has blocked the end of the driveway with a rope for periods of approximately 26 - 28 hours every two - three years.
20. The first conversation that Mr. Connors had with anyone at 125 - 127 Atlantic Street occurred during the blizzard of 1978 when Mr. Connors and Mr. Harding (Ms. Jope's husband) had coffee while shoveling snow. At that time, Charles Harding informed Mr. Connors that the entire driveway was owned by Mary Jope Harding, but that he could continue using it.
21. By deed recorded July 28, 1980, in Book 5758 at Page 166, the Chans succeeded to the title to 125 - 127 Atlantic Street and the current controversy arose shortly thereafter.
In order for the plaintiffs to succeed in establishing a prescriptive right to use that portion of the driveway that is on the defendants' land they must prove by a preponderance of the evidence that their use has been "uninterrupted, open, notorious, adverse and without the permission of the defendants or their predecessors in title for a period in excess of twenty years." Ryan v. Stavros, 348 Mass. 251 (1964), Nocera v. DeFeo, 340 Mass. 783 (1959). While the actual use of the driveway by plaintiffs and their predecessors for a period in excess of twenty years is uncontroverted, I find and rule that the use was permissive.
While the testimony of Allen E. Marcou and Mary Jope Harding differs as to the substance of their conversation in February, 1963, I find that Mr. Marcou received permission from Ms. Jope Harding to use the driveway, and based on that permission, he removed the fence he had erected three months earlier. Even though Mr. Marcou testified that he did not seek or receive permission to use the driveway during this conversation, he admitted that had he not been given permission, he would not have removed the fence. (Transcript, p.49).
I, therefore, find and rule that Mr. Marcou, plaintiffs' predecessor, recognized Harding's authority to prevent the former's use of the driveway and did receive Harding's permission to use the driveway.
In addition, I have found that Mrs. Harding blocked the entrance to the driveway with a piece of twine and stakes several times between 1965 and 1980 in a further attempt to prevent any rights from accruing to the plaintiffs' predecessor. As a result, plaintiff's claim of prescription must fail.
For the foregoing reason, I rule that plaintiffs have not acquired an easement by prescription over that portion of the driveway that is located on the defendants' property.
Judgment to enter accordingly.
[Note 1] Defendant Quincy Savings Bank holds a mortgage on the Chan's property.
[Note 2] All instruments referred to herein are recorded at said Registry.
[Note 3] Mrs. Crowell did not testify. Mr. Crowell testified that he had no knowledge as to whether his wife ever had conversations with the Pasquariellos regarding the ownership of the driveway. Charles Pasquariello testified that he gave permission to use the driveway to either Glendon Crowell or Abraham Levine, the Crowell's predecessor in title. While he was sure he had given permission to one of the men, he could not remember which one.