PATRICK P. TRANI vs. FAN B. PINKERSON.

This action for declaratory judgment and injunctive relief is brought pursuant to G. L. c. 231A and c. 185, §l (k) by plaintiff Patrick P. Trani (Trani) alleging that an actual controversy exists between himself and the defendant. Trani seeks a declaration that he has a valid and enforceable right of way created by deed and further seeks a declaration as to the extent of his right of way over property of the defendant, Fan B. Pinkerson (Pinkerson). Trani and Pinkerson own contiguous land on Commercial Street in Provincetown.

In his complaint Trani alleges that a right of way was created by Pinkerson over the easterly portion of her property when she deeded what is presently Trani's property to one of his predecessors in title. Trani alleges that Pinkerson has, in recent years, interfered with his right to use his right of way, and threatened and harrassed his tenants, guests and invitees when they have attempted to use the right of way. Trani further alleges that Pinkerson's actions have made it difficult for him to find tenants for his rental units and impossible for him to sell his property, which has been listed with Provincetown brokers since the spring of 1979. Plaintiff prays that the court issue injunctive relief against the defendant, her family, agents, servants, employees and those acting by, for, or through her or them, restraining and enjoining them from obstructing or interfering with Trani's right of way over the easterly side of Pinkerson's property. Plaintiff further prays that the court declare that Trani, his heirs, assigns and invitees have all rights incidental to and necessary for the use of the right of way for foot passage from and to the Trani property over the easterly side of the Pinkerson property to and from Provincetown Harbor including 1) the right to install and maintain stairs located at the easterly side of the bulkhead and leading to and from the Harbor and 2) the right to transport boats by foot to and from the beach.

Plaintiff moved for a preliminary injunction and, after hearing, an interlocutory order issued giving Trani, his agents, servants and invitees a right to "pass and repass, on foot, from his premises..., along the westerly boundary thereof over the stairway leading to the beach for bathing and boating and use of the beach of the defendant" and ordering that the "defendant is not to interfere with the access of the plaintiff to the beach on the westerly side of her property". The motion judge specifically stated that the issuance of the interlocutory order "in no way reflects a decision...on the merits as to the respective rights of the parties...".

Defendant Pinkerson's answer (later amended) admits that a deed from her to one of plaintiff's predecessors in title created a right of way over the easterly side of Pinkerson's property and also admits that she has interfered with plaintiff's and others' use of the alleged right of way. In defense, Pinkerson states that plaintiff has abandoned and surrendered the alleged easement and thereby lost all his right and interest in it, and that the alleged easement has been extinguished by the defendant's adverse possession. Defendant also answers that Trani is guilty of laches; that the alleged easement is extinguished by estoppel and that the plaintiff is not entitled to equitable relief since he had been guilty of inequitable conduct and has failed to come into equity with clean hands. Moreover, the defendant states that the matters complained of are res judicata by virtue of the Supreme Judicial Court's issuance of a rescript in the case entitled Fan B. Pinkerson vs. Patrick P. Trani, and the issuance of Judgment After Rescript by the Superior Court Department of the Trial Court, sitting in Barnstable County (Case No. 36029) on May 21, 1979, one month prior to the institution of this suit. Defendant states that plaintiff could have or should have raised the issues he now raises in the former suit in which judgment on the merits was entered. Defendant asks that this Court dismiss plaintiff's complaint.

Subsequently the defendant filed a counterclaim (later amended) which was allowed late by the court, alleging that just prior to the filing of plaintiff's complaint, plaintiff erected a stockade fence which blocked a portion of defendant's walk and gate to her property. Defendant further alleges that she has a right to use the walkway and gate by virtue of a reservation clause in her deed of Trani's property to one of his predecessors in title and that defendant and those claiming under, through and by her, have continuously, openly, notoriously, and adversely used the walk on plaintiff's property for a period in excess of 20 years. Pinkerson demanded that Trani and those acting on his behalf or by or through him, be restrained from interfering with Pinkerson's access by foot to her property over her right of way. Defendant further demanded that costs, including damages and attorney's fees, be assessed against the plaintiff.

In plaintiff's reply to defendant's counterclaim he admits that he has erected a fence blocking the gate, but denies that defendant has any rights in the walkway or gate. Plaintiff states, as affirmative defenses, that defendant has waived any rights she may have had; that she is estopped by her conduct from asserting any rights; that any use by the defendant of the walkway on his property was with his permission and that defendant's claims are barred by the doctrine of res judicata and should be dismissed.

Following a determination by this court that the issues involved in the instant case were not barred by the doctrine of res judicata, the case was set down for trial. [Note 1] Numerous attempts over a protracted period of time were made by each side to reach a settlement pre-trial and several conferences with the court failed to satisfactorily resolve the issues. This case is, hopefully, the last in a series of lawsuits and contempt proceedings between the parties which has resulted in marked animosity between them and consumed substantial judicial resources and time.

Eight days of trial were held and a view of the locus was taken with counsel and the parties. Thirty-eight exhibits were entered in evidence to supplement the testimony of seventeen witnesses. All exhibits are incorporated herein for the purpose of any appeal.

On all the evidence I find the following facts:

1. Plaintiff, Patrick P. Trani, is the record owner of property located at 49 Commercial Street, Provincetown (Trani premises) by deed from T. Wallace Head and Patrick P. Trani recorded August 1, 1966 with Barnstable County Registry of Deeds, in Book 1342 at Page 1017 (Exhibit 6). [Note 2]

2. Defendant, Fan B. Pinkerson, is the record owner of property located at 49A Commercial Street, Provincetown (Pinkerson premises), being the southerly portion of land described in and conveyed to the defendant by deed from Anne K. Landor recorded December 19, 1946 at Book 662 at Page 296 (Exhibit 1).

3. The Trani premises are bounded on the north by Commercial Street and on the south by the Pinkerson premises. (See plan, Exhibit 8).

4. The Pinkerson premises are bounded on the north by the Trani premises and on the south by the waters of Provincetown Harbor.

5. Defendant Pinkerson created the two parcels of land when, in 1947, she conveyed what is now the Trani premises to Helene Culbertson by deed recorded on September 17, 1947 in Book 678 at Page 137 (Exhibit 2).

6. Shortly before Culbertson took title to the Trani premises, Pinkerson and her late husband agreed with Culbertson as to where to place the boundary line between the two newly created lots. (No fence between the two properties existed until 1957 or 1958).

7. By the same deed that conveyed the Trani premises to Culbertson, Pinkerson created and conveyed to Culbertson a right of way over her property described as follows:

"The grantor hereby conveys a right of way to the grantee her heirs, assigns and invitees for foot passage over the easterly side of the grantor's land leading to the waters of Provincetown Harbor and the use of the grantor's beach for grantee's use, her heirs, assigns and invitees for bathing and boating which means they have the right of ingress and egress." (emphasis added)

8. A portion of the right of way described in paragraph 7 is shown on a plan of land entitled "Plan of Land in Provincetown, made for Patrick P. Trani..." recorded in Book 306, at Page 608. (Exhibit 8).

9. Shortly after Culbertson moved into the Trani premises a friendship began to develop between her and defendant Pinkerson.

10. Sometime in the fall of 1947 Culbertson told Mr.and Mrs. Pinkerson that she didn't want to go to the water via the easterly right of way because it was impractical for her. She said that she wanted to use another access on the west side of Pinkerson's property, which was closer to her kitchen door.

11. Defendant Pinkerson told her that whatever was convenient for Culbertson was fine with her. (Transcript Vol. 4, p. 24)

12. Subsequent to this conversation Culbertson and her guests used the west side access to the beach until Culbertson conveyed the Trani premises together with the easterly right of way to Elaine Johnston by deed recorded December 31, 1951 in Book 800 at Page 531. (Exhibit 3).

13. Elaine Johnston lived on the Trani premises until she died in 1955, when the premises passed to Coldwell S. Johnston, her next of kin. (See Barnstable County Probate No. 35058).

14. During her ownership, Johnston went to the beach over the west side access. When Coldwell S. Johnston inherited the property he rented it to several tenants, all of whom went to the beach over the west side path on the Pinkerson premises.

15. By deed recorded August 21, 1958 in Book 1012 at Page 593, Coldwell S. Johnston conveyed the Trani premises, together with the right of way to C. Sidney Johnston and Frances J. Johnston, husband and wife, as tenants by the entirety. (Exhibit 4).

16. In approximately 1956 or 1957, Pinkerson constructed a deck at the water's edge adjacent to her home on the east side. The deck which is still in existence, runs between the Pinkerson house and the property line on the east side. In order to pass from the Trani premises to Provincetown Harbor over the easterly portion of the Pinkerson premises, it is necessary to walk over a portion of the deck. She also installed two picture windows, one overlooking the water and one overlooking the deck and yard on the east side.

17. In approximately 1957-1958, the Pinkersons constructed a fence along the boundary line between the properties at 49 and 49A Commercial Street to insure their privacy and to keep children out of their yard. When the fence was first erected there were two openings placed along it; the first, a blue gate directly in back of the house on the Trani premises, and the second , an archway at the beginning of the west side path to the water. Sometime in the late 60's a gate was placed within the archway.

18. The blue gate upon which the number "49A" appeared, has been used since 1957 by the Pinkersons, their family and guests, as the primary entrance to their property at 49A Commercial Street from the street. People coming from the street to the Pinkerson premises would usually walk through the pedestrian gate in front of the Trani premises, along a brick path on the east side of the Trani premises and through the blue gate.

19. In addition the Pinkersons' mailbox was located on the blue gate and mailmen delivered their mail there from 1957 until the mailbox unexplainedly disappeared in 1979. Also, there was a bell on the gate that guests rang for some period of years between the late '50's and the early '70's, as the gate was frequently locked during the summer season when the Pinkersons were in residence. During the off-season, the blue gate was sometimes bolted from the Pinkerson side.

20. In approximately 1957, 1958 and 1959 the Johnstons rented a portion of the Trani premises to Paul and Marco Stephani, who lived at 49 Commercial Street from approximately April to November each year.

21. The Stephanis went to the beach infrequently during their tenancy. Initially they walked through the blue gate over the easterly portion of the Pinkerson premises, but at some point, Mrs. Pinkerson asked them if they would use the west side route instead. Both brothers testified that subsequent to Mrs. Pinkerson's request, they used the west side access when the Pinkersons were at 49A and the east side route when they were not.

22. While the Stephanis testified tha they recall steps on the east side of the Pinkerson's property going down to the water, the greater weight of the evidence indicates, and I so find, that since 1947 the only steps leading to the water from the Pinkerson property were on the west side, near the Pinkersons' property line where the distance from the bulkhead to the beach is shorter.

23. In 1963, by deed dated on May 3 in Book 1203 at Page 506, C. Sidney Johnston and Frances J. Johnston conveyed the Trani premises including the easterly right of way over the Pinkerson premises, to T. Wallace Head and Patrick P. Trani (Exhibit 5) who later deeded to plaintiff Trani. (See paragraph 1).

24. Between 1963 and 1975 Trani lived at 49 Commercial Street from sometime in April to sometime in November.

25. From 1963 to 1967 Trani used the easterly right of way infrequently to obtain sand from the beach to fill in sunken land on his property, to dump hedge clippings into the water and to get to the beach. In order to get from the bulkhead to the beach, which is about six feet below, Trani sometimes placed a ladder on the easterly side. Other times he walked across the Pinkerson premises and used the stairs on the west side.

26. Sometime in the early sixties, Trani had a conversation with Harry Pinkerson, defendant's late husband, during which Mr. Pinkerson expressed an interest in purchasing Trani's right of way. Mr. Pinkerson stated he would report the fact that Trani had illegal apartments at 49 Commercial Street unless Trani agreed to sell his right of way. Trani, however, declined to sell.

27. From 1967 to 1975, Trani's infrequent use of the easterly right of way continued, and on at least a few occasions, Mrs. Pinkerson saw him and a friend of his walking on the easterly side of her property. On two occasions in 1974 Mrs. Pinkerson saw Trani carry a sailfish across the easterly portion of her property to the water.

28. Until Harry Pinkerson's death in 1976, plaintiff and defendant had a cordial relationship.

29. Shortly after Mr.Pinkerson died, tensions between the parties began to surface, which has resulted in both civil and criminal litigation.

30. Plaintiff Trani continued to walk over the easterly portion of the Pinkerson premises after 1976, as did some of his tenants. Since 1976, Trani has gained access to the beach over the Pinkerson premises by using both the easterly and westerly ways.

31. Trani's use of the westerly route to the beach was to accomodate Pinkerson's wishes for privacy. His use of the easterly route was to insure that he would not lose his rights in his granted right of way.

32. At some time in 1979, Pinkerson placed a ''No Trespassing" sign on the easterly portion of her property line, precipating the instant litigation.

There is no question that plaintiff Trani is the record owner of a right of way over the easterly portion of the Pinkerson premises. The defendant, however, asserts that the plaintiff and his predecessors in title have abandoned this right of way, and, therefore, it is extinguished.

While it is clear that easements are rights that can be abandoned, 3 Tiffany, Real Property, §847 (3rd ed. Supp. 1976), the burden of proof of abandonment or extinguishment is on the party so claiming. Desotell v .Szezygiel, 338 Mass. 153 , 160 (1958). There must be proof of a concurrence of non-user and an intent to abandon. Restatement of Property, §504, Comments c and d.

Whether or not an easement has been abandoned is a question of intent on the part of the dominant estate owner. Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). Non-use alone does not extinguish an easement no matter how long it continues. First National Bank of Boston v. Konner, 373 Mass. 463 (1977); Desotell v. Szezygiel, 338 Mass. 153 , 158-159 (1958); Delconte v. Salioum, 336 Mass. 184 , 188 (1957). "It is also necessary to show acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinguish the easement or a purpose inconsistent with its further existence." First National Bank of Boston v. Konner, supra at p. 466, citing Willets v. Langhaar, 212 Mass. 573 , 575 (1912).

In the instant case in order for Pinkerson to carry her burden of proof that the right of way she granted to Culbertson in 1947 has been extinguished, she must establish that Culbertson or her successors in title to the Trani premises intended to abandon and, by their actions did, in fact, manifest their intention to abandon.

The major thrust of defendant's position is that the conversation that occurred between the Pinkersons and Culbertson in 1947 establishes Culbertson's intent to abandon her rights in the easterly right of way.

I cannot agree. I find and rule that the conversation that took place shortly after Culbertson moved into the Trani premises was merely a casual conversation between friends in which Culbertson explained that she would like to use an alternative route to the beach because it was more convenient for her. Accordingly, I find and rule that the conversation is insufficient to prove Culbertson's intention to abandon her legal rights in the easterly right of way. In fact, Culbertson's subsequent grant of the right of way to Johnston is evidence that she had not intended to abandon it. Additionally, there is no evidence that any record owner of the Trani premises subsequent to Culbertson had any intention to abandon his or her rights in the easterly right of way. The fact that in the late sixties the Pinkersons and Trani discussed the possible purchase by the Pinkersons of the right of way is additional evidence that at that time both parties believed the right of way was in full force and effect.

I, therefore, find and rule that defendant Pinkerson has failed to prove by a preponderance that the right of way over the easterly portion of the Pinkerson premises has been extinguished, and I, therefore, rule that plaintiff's rights in the easterly easement are valid and enforceable.

Plaintiff Trani has asked this court to declare the extent of his right of way, which I have found to be valid and enforceable. Plaintiff has also asked that the court declare that his right of way includes all rights incidental to and necessary for the use of a pedestrian right of way including the right to install and maintain stairs located at the easterly side of the bulkhead and leading to the harbor and the right to transport boats by foot to and from the beach.

Where the language creating a right of way fails to define it, the court can determine the location, limits and purposes of the way, Marden v. Mallard Decoy Club, Inc., 361 Mass. 105 , 107 (1972); Old Colony Street Railway v. Phillips, 207 Mass. 174 , 181 (1911). An easement granted in general terms "is not necessarily limited to the uses made of the dominant estate at the time of the creation of the easement and it is available for all reasonable uses to which the dominant estate may thereafter be devoted." 361 Mass at 107.

In defining the physical limits of Trani's right of way the court must define the straightest and most direct way, absent any controlling reason to the contrary. 207 Mass at 182. In the instant case the right of way across defendant's property was created by grant prior to the construction of the fence that now separates the parties' properties. The right of way as originally granted in 1947 describes a "...right of way for foot passage over the easterly side of the grantor's land leading to the waters of Provincetown Harbor ...". Although there is no direct evidence of the precise dimensions of the easterly portion of the Pinkerson premises, it appeared at the view to be approximately eight to ten feet wide from the tree line on the easterly property line to the Pinkerson house.

Trani has testified that he has used the blue gate for entry onto the defendant's property, thereafter following either the pathway adjacent to the house, or cutting across defendant's land diagonally and then going over defendant's deck to the water. In view of the animosity between the parties and the defendant's understandable desire for privacy, I rule that there are sufficient controlling reasons to define a right of way that is not the most direct route.

In accordance with my findings and rulings, plaintiff's right of way shall hereafter be defined as beginning at the vehicular gate which is now located on the property line between 49 and 49A Commercial Street, following a straight course five feet wide, next to the hedge between the Pinkerson premises and property adjacent to it on the east side, across the easternmost portion of defendant's deck. Plaintiff's rights include the right to carry boats to and from the water. Plaintiff has a right, insofar as it is allowed by the by-laws of the Town of Provincetown, to erect temporary or permanent stairs from the edge of the bulkhead on the easternmost side of the Pinkerson premises to the beach. I further rule that plaintiff shall be supplied a sufficient number of keys to any lock that now exists or is in the future placed on the vehicular gate so that he and his tenants shall have free access to the right of way at all times.

Defendant Pinkerson, by way of counterclaim, seeks to establish her right to use "the blue gate" and the brick walkway next to the Trani house by virtue of her prescriptive use over a period of 35 years. The defendant, who is attempting to establish prescriptive use, has the burden of proving by a preponderance of the evidence that such use has been open, uninterrupted, and adverse for a period of no less than twenty years. Tucker v. Poch, 321 Mass. 321 (1947).

The testimony overwhelmingly supports the defendant's claim that she, her family, friends and guests have used the blue gate and the brick walkway openly, notoriously, continuously and without the permission of Trani or any of his predecessors in title for a period in excess of twenty years. I, therefore, rule that defendant has acquired an easement by prescription and has established a right in herself, her heirs, assigns, guests and invitees to use the brick walkway on Trani's property from Commercial Street to the blue gate for ingress and egress to defendant's property. Consequently, I rule that Trani must forthwith remove the portion of the stockade fence that is currently blocking Pinkerson's use of the blue gate. In addition, I rule that Pinkerson has the right to reinstall her mailbox and lock the blue gate and need not supply Trani or his tenants with a key.

Both parties have submitted requests for findings of fact and rulings of law and, in accordance with this decision, I find and rule as follows:

Plaintiff's general requests numbered 1, 2, 3, 6, 7, 11, 12 and 13 are granted and general requests numbered 4, 5, 8, 9 and 10 are denied. Plaintiff's requests for subsidiary findings of fact numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 36, and 37 are granted and subsidiary findings numbered 17, 22, 29 and 35 are denied. Plaintiff's request for subsidiary finding numbered 16 is denied because the language is too vague.

Defendant's requests for findings numbered 1, 2, 3, 4 and 8 are granted and requests for findings numbered 5, 6, 7, 9, 10, 11, 13 and 14 are denied. The requested finding contained in the first sentence of request numbered 12 is granted. The second sentence of number 12 is denied. Defendant's request for ruling numbered 2 is granted and requests numbered 1, 3, 10, and 11 are denied. Requests for rulings numbered 4, 5, 6, 7, 8 and 9 are denied because they are inapplicable to the facts found.

Both parties have asked the court to assess damages and award attorney's fees. I decline to award either side damages or attorney's fees inasmuch as the legal questions raised by the complaint and counterclaim were not frivolous; neither side presented evidence of damages; and the plaintiff and defendant are, by this decision, afforded the relief requested by the complaint and counterclaim respectively.

Judgment to enter accordingly.