WILLIAM CORCORAN, PATRICK BUCKLEY, STANLEY PENTON and ROBERT SAMA vs. JOSEPH DELLEPIGNE, [Note 1] MARIA DELLEPIGNE, PAUL LAURICELLA, and RALPH AMELIA, Trustees of the Pigeon Hill Estates Trust.

Plaintiffs allege that they have a vested fee and a right to use Pigeon Lane in the City of Waltham, that the Defendants have no fee, interest, easement or other rights therein and no right to use the same. They pray that the Court make this determination and that Defendants be permanently enjoined from using Pigeon Lane.

Defendants in effect deny these allegations, claiming an express grant, an implied right, a prescriptive right and rights in common with certain of the Defendants in and to Pigeon Lane. In addition, in their Supplemental Trial Brief the Defendants claim that they have rights in and over alterations to Pigeon Lane made by Plaintiffs; that the proposed use by Defendants will not overburden Pigeon Lane and that since Pigeon Lane is an approved subdivision road it may be used for access to the Defendants' land.

The case came on for trial on October 15, 1982 with five witnesses testifying and fourteen exhibits placed into evidence and incorporated by reference herein in the event of any appeal. Prior to the trial, on May 24, 1982, the Court took a view of the area with counsel present. Briefs were filed on December 2, 1982 for the Defendant and on December 22, 1982 for the Plaintiffs and final arguments were heard on January 24, 1983. Thereafter, the Court received a supplemental brief from Defendants dated February 10, 1983 and a letter from Plaintiffs dated February 17, 1983 suggesting certain corrections to the Defendants' Supplemental Brief which was filed with the Court.

The parties filed a comprehensive abstract of the title to the parcels of land involved herein, being shown as parcels A, B1, B2, B3, C, D, E, F, and G on a Waltham Assessors' Plan dated 1923, (Exhibit 6), as shown as Appendix A. [Note 2] The parties further filed a document entitled "Stipulation of Facts" (Exhibit 4). The Court finds as facts paragraphs 1 through 21 thereof except for a portion of stipulation No. 20 which was attached to the back of said stipulation.

1. The Plaintiff, William Corcoran, is an individual residing at 75 Pigeon Lane, Waltham, Masschusetts. Corcoran is Trustee of the Brian Realty Trust which is the owner of the property known as 75 Pigeon Lane, and which is more particularly described in a deed dated March 5, 1970 recorded in Book 11807, Page 18, Middlesex South District Registry of Deeds. Plaintiff Corcoran's title derives from the Woodland Park Acres Subdivision (hereinafter called "Woodland Park") shown as parcel F on the title stipulation.

2. The Plaintiff, Patrick Buckley, is an individual residing at 63 Pigeon Lane, Waltham, Massachusetts, and is the owner of said property which is more particularly described in a deed dated August l, 1973 recorded in Book 12491, Page 157, Middlesex South District Registry of Deeds. Plaintiff Buckley's title also derives from the Woodland Park Subdivision chain.

3. The Plaintiff, Stanley Penton, is an individual residing at 90 Pigeon Lane, Waltham, Massachusetts, and is the owner of said property which is more particularly described in a deed dated January 9, 1970 recorded in Book 11790, Page 117, Middlesex South District Registry of Deeds. Plaintiff Penton's title also derives from the Woodland Park Subdivision chain.

4. The Plaintiff, Robert Sama, is an individual residing at 42 Pigeon Lane, Waltham, Massachusetts, and is the owner of saidproperty which is more particularly described in a deed dated September 5, 1978 recorded in Book 13533, Page 205, Middlesex South District Registry of Deeds. Plaintiff Sama's title derives from the so-called "DeVincent Subdivision" shown as a portion of parcels C, D, and E abutting Pigeon Lane in the title stipulation.

5. The said Plaintiffs' property abuts said Pigeon Lane.

6. The Defendants, Paul Lauricella and Ralph Amelia as Trustees of Pigeon Hill Estates Trust, own a parcel of land in said Waltham West at the present terminus of Pigeon Lane and previously owned by Cambridge Council, Boy Scouts of America, Inc., and more particularly described in Book 13828, Page 441, Middlesex South District Registry of Deeds. (Hereinafter referred to as the "Boy Scout parcel," and shown as parcels B-1, B-2, B-3 in the title stipultion.)

7. The Defendant, Maria Dellepigne, owns a parcel of land in said Waltham, Northwest and West of the present terminus of Pigeon Lane and more particularly described in Book 9369, Page 142, Middlesex South District Registry of Deeds. (Hereinafter referred to as the "Dellepigne parcel," and shown as parcel A in the title stipulation). The defendants Lauricella and Amelia hold an option to purchase all of said parcel.

8. Pigeon Lane is listed by the City of Waltham as a private way and there have been no formal proceedings at any time to make it a public way.

9. The street sign erected and maintained by the City of Waltham indicates that Pigeon Lane is a private way.

10. The Defendants' subdivision plan filed and accepted by the City of Waltham shows Pigeon Lane as a private way.

11. At the present time, there are approximately twenty (20) houses with frontage on Pigeon Lane; ten (10) in the Woodland Park Subdivision and ten (10) in the DeVincent Subdivision. In the Woodland Park Subdivision there are, in total, 47 houses which are serviced by Pigeon Lane (private way), Juniper Hill Road (private way), and Chatham Lane (private way). Juniper Hill Road connects to Harrington Road which is a public way.

12. The Defendants' plan to construct fifty-seven (57) [Note 3] additional houses on the two parcels described above to be accessed (sic) by Pigeon Lane.

13. The Boy Scout parcel was acquired by the Cambridge Council, Boy Scouts of America, Inc. at various times as shown in the title stipulation.

14. From approximately 1940 to 1970, the Boy Scouts used the said parcel (known as Camp Ted) for scouting purposes primarily camping and related activities.

15. The portion of Camp Ted used by the Boy Scouts consisted of seven (7) camp sites located on the parcel in which the Boy Scouts owned the fee and two (2) camp sites located on land owned in the fee by the Defendant Dellepigne which land provided access from Pigeon Lane to the parcel owned by the Boy Scouts and which land was rented by the Defendant Dellepigne to the Boy Scouts during all times relevant hereto.

16. Access from Forest Street (a public way) to the Dellepigne and Boy Scout parcels was by way of Pigeon Lane which until 1966 was a narrow (one car width, with room to pull off to allow on-coming cars to pass) way leading to the Dellepigne parcel. There continued a trail, wide enough for a single car to drive over, from the present terminus of Pigeon Lane across the Dellepigne parcel into the Boy Scout parcel. In 1966 when the Woodland Park Subdivision (parcel F in the title stipulation) was built, the present configuration of Pigeon Lane was laid out as a fifty (50) foot bituminous paved way over the existing approximately twenty (20) foot wide Pigeon Lane, which paved road terminated at the Dellepigne property line. During the period from 1930 to 1966 a single residence (which may have been the only residence) existed at the Southwest corner of the present terminus of Pigeon Lane abutting the Dellepigne parcel.

17. In 1967, the parcel of land on the Southerly side of Pigeon Lane was laid out as a subdivision known as the DeVincent subdivision containing approximately 12 lots havirig sole frontage and access on Pigeon Lane as shown in a plan incorporated in parcel D of the title stipulation.

18. The Dellepigne parcel was acquired by the late Defendant Joseph Dellepigne's father as part of a larger parcel in 1909. The Dellepigne parcel which is the subject of this action was acquired in 1959 by the Defendant Maria Dellepigne and the late Joseph Dellepigne in a division of the said larger parcel between said Joseph and his brother Edward.

19. The Dellepigne parcel was used solely for gathering wood used for heat and cooking. Said wood was gathered by the Dellepigne family 3 or 4 times weekly by means of a single team of horses or a small truck.

20. The Defendant Maria Dellepigne testified in a deposition that access to said parcel was obtained via Old Harrington Road in a Southeasterly direction bisecting parcel F as shown in the title stipulation to the intersection of Pigeon Lane at a point approximately halfway along the length of said Pigeon Lane and then by proceeding Westerly on Pigeon Lane which then consisted of dirt, rocks, sand and grass. [Note 4]

21. Prior to 1959, the Dellepigne Defendant also had additional direct access to a public way (Harrington Road) via land owned by the said Defendant and shown as parcel G in the second title stipulation. This parcel was conveyed by the Defendant Dellepigne, through a straw, to his brother, Edward Dellepigne (a/k/a Edward Pine). The deed effecting this conveyance reserved to the Defendant Joseph Dellepigne a twenty (20) foot right of way across said parcel G for access to Harrington Road. Said right of way was released for no recited consideration in an instrument executed by Maria Dellepigne dated September 28, 1981 and recorded on September 30, 1981.

In addition to the stipulated facts adopted by the Court, the Court also finds the following facts:

A. Pigeon Lane is not a public way. It was plowed by the City for public safety reasons along with other private ways in the City. It was oiled and tarred several times over the years at the same time that Harrington Road, a public way, was. Two houses were located on Pigeon Lane, one house occupied by the Murphy family burned in 1939 or 1940 and the other, the caretaker's cottage at Camp Ted, also burned in two fires, the last one being in 1973.

B. The Waltham Board of Survey, in approving the DeVincent and Woodland Park subdivision plans in 1966, required that the roads be stubbed and utilities brought in to the stub so that further projections could be made.

C. The Dellepigne house was located on Parcel G as shown on Appendix A so that the access to it was not over Pigeon Lane. Pigeon Lane was used frequently by Emelia Dellepigne Warren as a young school girl to visit her childhood friend, Nellie Murphy- Svenson, who lived on Pigeon Lane in the house that burned in 1939 or 1940.

D. The right of way over parcel G, as shown on Appendix A, to the Dellepigne house on Harrington Road reserved in the 1959 deeds to Romotsky was released on September 28, 1981.

E. Pigeon Lane has existed in part as far back as 1871, as shown in deeds and plans, to Parcel F, and it appears in the Waltham Atlas in 1911. Pigeon Lane has been used since 1966 at least as far as the northerly end of the DeVincent and Woodland Park Developments by the general public; some use has been made of the extension thereof into Defendants' parcel A by Defendants and others prior to and since 1966.

F. The City engineers required the subdivision plans to conform to planning board regulations and required the Defendants' 58 lot subdivision to be designed and constructed to provide safe and adequate access thereto.

The questions to be decided here are whether or not the Defendants have rights of way in Pigeon Lane by grant and implication and if not, by prescription; whether or not plaintiffs have rights of way in Pigeon Lane; what the extent of defendants' rights of way, if any, are in Pigeon Lane; and finally whether or not the use of Pigeon Lane caused by the addition of a 57 lot subdivision will overburden any rights of way of defendants in Pigeon Lane.

I. Do the Defendants have a right of way in Pigeon Lane by grant and implication?

Defendant Dellepignes' title to Parcel A as shown on Appendix A derives from a deed from Frederic P. Rutter and Clarence F. French, Executors, to Joseph Bloomfield, dated August 5, 1909, recorded in Book 3469, Page 322. [Note 5] In the description of the second parcel therein a call reads "thence along said land conveyed to said Taylor south seventy-two degrees thirty minutes east three hundred forty-two (342) feet to a stake and stones in the westerly side of an old Town Way: thence Northerly along said old way or land now or formerly of the Rindge estate about eighty-seven (87) feet;" The description of this second parcel goes on to conclude "the above courses and distances being approximate together with and subject to such rights as may exist in the old Town Way aforesaid." By mesne conveyances, all of which contain the same references to ways, Parcel A comes down to Maria Dellepigne. Parcel A thus has a frontage on Pigeon Lane and has "such rights as may exist" therein.

The Plaintiffs claim that Parcel A has no right to Pigeon Lane as at most it abuts it at its terminus and under the provisions of Emery v. Cowley, 371 Mass. 489 (1976) Parcel A would have no rights therein. The Court would point out that the present situation is far different than in the Emery case as here Pigeon Lane in 1909 at the time of the conveyance was a cart path, probably no wider than one car width. It was certainly not eighty-seven feet in width. Thus, while it is true that Parcel A may not have all of 87 feet frontage on Pigeon Lane it certainly does not merely cross the end of it. The Court rules that the provisions of the Emery case do not prevail here.

There being no evidence to the contrary, the court assumes that in 1909 the granters had rights of way in Pigeon Lane. By their deed to defendant Dellepigne's predecessor in title, Joseph Bloomfield, dated August 5, 1909 and recorded in Book 3469, Page· 322, Parcel A ran "along said old way" contained "such rights as may exist in the Old Town Way aforesaid." The defendants acquired their rights have rights therein for the full length of the way. Farnsworth v. Taylor, 75 Mass. (9 Gray) 162 (1857). See also Stetson v. Dow, 82 Mass. (16 Gray) 372 (1860). Thus, the court rules that Parcel A has a granted way in and to Pigeon Lane which by implication extends to the full length of the way.

The extent of the right granted depends upon the terms of the grant. J.S. Lang Engineering Co. v. Wilkons Potter Press, 246 Mass. 529 (1923). The language in the deeds in the title chain is not very enlightening as to the extent of the rights. Certainly it gives the Defendant Dellepignes, owners of Parcel A, the right to use the way for access to and from Parcel A in a reasonable manner by foot and by vehicle and the Court so finds and rules.

Defendants Lauricella and Amelia, Trustees of Pigeon Hill Estates Trust, own Parcels B1, B2 and B3 located west of the present end of Pigeon Lane as set forth in paragraph 6 hereof. The deed by which they acquired title is not in evidence although recited as being recorded in Book 13828, Page 441. Parcels B1, B2 and B3 would appear to have no granted rights in and to Pigeon Lane and the Court so finds and rules. Parcel C to the south of Parcel B2 would appear to have 166 foot frontage on Pigeon Lane and is a part of the DeVincent Subdivision. Thus, the only rights of way accruing to parcels B1, B2 and B3 must be by prescription, if in fact these parcels have any rights of way therein.

II. Do the Defendants have a prescriptive right in and to Pigeon Lane?

Justice Kass in the case of Glenn v. Poole,_____Mass. App. Ct._____ (1981) [Note 6] stated the following:

As is often the case with easements, the governing principles are easier to state than to apply. So, for example, it is familiar law that a right of way may be acquired by prescription through twenty years of uninterrupted, open, notorious and adverse use. Nocera v. DeFeo, 340 Mass. 783 (1959). Ryan v. Stavros, 348 Mass. 251 , 263 (1964). G. L. c. 187, §2. And the extent of the easement so obtained is fixed by the use through which it was created. Baldwin v. Boston & Me. R.R., 181 Mass. 166 , 168 (1902). Lawless, v. Trumbull, 343 Mass. 561 , 562-563 (1962). Restatement of Property §477 (1944). See Dunham v. Dodge, 235 Mass. 367 , 372 (1920). Yet, the use made during the prescriptive period does not fix the scope of the easement eternally. See Lawless v. Trumbull, supra at 563. It may change over time, Restatement of Property §479, comment a (1944), and uses satisfying the new needs are permissible, id., "[b]ut the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use." Lawless v. Trumbull, supra at 563. See also Hodgkins v. Bianchini , 323 Mass. 169 , 173 (1948), which holds that once an easement is created, every right necessary for its enjoyment is included by implication.

Applying these principles to Parcels B1, B2 and B3 (and to Parcel A in the event it is ruled that there is no right by grant and implication to Pigeon Lane) the evidence makes it clear that there is a right of way by prescription. The Dellepignes made use of Pigeon Lane at least as far back as 1919 for gathering wood for the purpose of heating their home and for cooking purposes. It was agreed that this use was made by various members of the Dellepigne family three or four times weekly, first by means of a horse and team and then a small truck and continued up until 1966. In addition, Emelia Dellepigne Warren used the way for many of her early school years to visit her friend, Nellie Murphy, who lived in a house on Pigeon Lane. This use was for access to Parcel A and to Parcel B1, B2 and B3 as well. It continued for a great many years, well over the required twenty; was open, notorious, uninterrupted and adverse and the Court so finds and rules.

The extent of an easement by prescription, unlike an easement by grant, is determined by the use through which it was created. Carson v. Brady, 329 Mass. 36 (1952). Once created there can be some variations in the nature of the use, but these variations cannot be substantial. Towle v. Trustees of Donations To the Protestant Episcopal Church, 259 Mass. 256 (1927). The evidence is clear that during the time Pigeon Lane was used to acquire an easement by prescription and up until 1966 it was a narrow dirt road passable by a single car. (See paragraph 16 herein). The Dellepignes travelled it with a team of horses or a small truck (See paragraph 19 herein). Applying the law to the facts in this case, it is clear that the prescriptive rights acquired by the Defendants in Pigeon Lane under these circumstances cannot be construed to cover the entire width of what is now Pigeon Lane. They have an easement by prescription over the width of the old Pigeon Lane limited to ingress and egress by foot and by vehicle.

In addition to prescriptive rights in Pigeon Lane by the Defendant Dellepigne family, there was use made thereof by others. The Murphy family lived in a house on Pigeon Lane for many years until their house burned down in 1939 or 1940. Likewise, the Cambridge Council Boy Scouts operated a camp known as Camp Ted from approximately 1940 to 1970. This camp was located on parcels B1, B2 and B3 and a part of Parcel A was leased by the Boy Scouts from the Dellepignes. The camp was used by the Boy Scouts for camping and other related scouting activities. A caretaker lived on the Boy Scout property year round and the Court presumes that the camp was heavily used in the summer. About 1970 the caretaker's cottage burned and the camp was discontinued. Thus, the Court finds that there were others besides the Defendants who had made use of Pigeon Lane over the years, but the Court is not called upon to rule on whether or not this use by them constitutes prescriptive rights in Pigeon Lane.

III. Do the Plaintiffs have rights of way in and to Pigeon Lane?

The title to Parcel C stems from a deed of August S. Johnson to Alfred Anderson, dated October 14, 1910, recorded in Book 3562, Page 472, described therein as "running south 2 degrees west by said town way one hundred sixty-six (166) feet to a stake and stones." This same description was used in the mesne conveyances and in the former deed from Alexander S. Blinstrub to Arthur DeVincent and Raymond DeVincent dated April 6, 1963 recorded in Book 10247, Page 002. Parcel D stemmed from a deed in 1917 from Arthur Lynn, et al, Trustees to Arthur Lynn and them by a deed from Arthur T. Lynn, Trustees to Arthur and Raymond DeVincent dated November 10, 1980 recorded in Book 7673, Page 24, bounding the parcel "on" Pigeon Lane. It is from Parcel D that the Plaintiff Sama's lot is derived. The title to Parcel E stems from a deed from Eben W. Fiske to Samuel B. Rindge dated June 10, 1881, recorded in Book 1570, Page 552 which runs "by" Pigeon Lane. These three parcels became the subdivision shown on the plan entitled "Subdivision Plan of Lots Owned by Arthur and Raymond DeVincent" recorded in Book 11594, Page End, herein called the DeVincent Subdivision.

The Court finds and rules that the lots in the DeVincent subdivision all have rights of way in and to Pigeon Lane, including the lot of plaintiff Sama.

The title to Parcel F is traced from a deed from George W. Lyman et al to Eben W. Fiske dated August 17, 1871 and recorded in Book 1175, Page 216. It thence came down with the same description basically to August J. Colangelo and Michael F. Iodice, Trustees of Woodland Park Realty Trust by deed of Michael F. Iodice, Trustee dated May 19, 1966, recorded in Book 11118, Page 380. The Court finds and rules that the lots in the subdivision of Parcel F that became known as the Woodland Park subdivision all have rights of way in Pigeon Lane. The lots of the Plaintiffs other than Sama are from this subdivision and have rights of way in and to Pigeon Lane.

IV. What is the Extent of Defendants' Rights in Pigeon Lane?

Pigeon Lane is first shown on a plan of land recorded on August 19, 1871 in the Parcel F chain (see deed of George Lyman to Eben Fiske, dated August 17, 1871, recorded in Book 1175, Page 216), running west to what is now Harrington Road or a little beyond. The Assessors Plan of 1911 likewise shows the way extending farther than on the 1871 plan from Forest Street up to Parcel A on Appendix A. On the 1923 Atlas (Exhibit 6, Appendix A) it is again shown running west to Parcel A. Pigeon Lane, as it existed prior to 1966, was originally a dirt road, later oiled and perhaps tarred. There was some evidence that two cars could pass on it, at least in some places. It was essentially a narrow, country lane, leading to Camp Ted, the Murphy house and the caretaker's house for Camp Ted.

If the Defendants' right of way comes from a grant and implication their present right to use it may be broader than if by prescription. If by prescription, the use is one of narrow breadth although a recent case, Lawless v. Trumball, 343 Mass. 561 (1962) has somewhat broadened the use. Here, it would not appear to make any difference as the right of way as it existed from 1911 up to 1966 was to a way wide enough at the very most for two cars to pass. It was certainly no wider than 20 feet at any point and most likely much narrower. In 1966 and thereafter Pigeon Lane through the subdivision of Woodland Park and DeVincent was improved to its present width. The use was for ingress and egress on foot or by vehicle; it was not a broad use. It was one limited to modest use for these purposes at most.

The Defendants claim that under the provisions of Glenn v. Poole, supra they have the right to use the whole of Pigeon Lane as developed. In Glenn v. Poole, the dominant tenant widened the right of way over land of the servient tenant in a modest way including a flaring of the corners of the entrance onto the easement from the public way in order to eliminate blind corners. The court held that the dominant tenant had the right to use the widened road. This widening was reasonable given the use made of the way. Glenn v. Poole, however, does not stand for the proposition that if the servient tenant widens the road, the dominant tenant automatically has rights in the whole. If a way is twenty feet wide through a servient estate and the servient tenant adds twenty additional feet of his land to the pavement the dominant tenant does not automatically acquire rights to use the whole forty feet. The additional 20 feet belong to the servient estate in fee and are not burdened by the easement. The Court finds and rules that the Defendants herein being the dominant tenants do not have rights of way over the way as enlarged by the Plaintiffs' predecessors in title, they being the servient tenants here. The Defendants' rights of way are limited to an area 20 feet in width through the Woodward and DeVincent Subdivisions, the 20 feet located in the mid section of Pigeon Lane as laid out on the subdivision plans and that these rights are to access to and from Parcel A by grant 1 and Parcels B1 and B2 by prescription. It may be that by statute c. 187, §5 the defendants Dellepigne who have a right of way by grant may have the right to install public utilities in Pigeon Lane.

V. Will the use of Pigeon Lane by the addition of a 57 lot subdivision overburden any rights of way of defendants therein?

The crux of this whole case is the claim by the Defendants to complete rights for all purposes for which streets may be used in the City of Waltham over Pigeon Lane as it exists today. This is after Pigeon Lane has been constructed by the developers of the Woodland Park and the DeVincent subdivision at their expense. The claimed use is to provide access to a projected 57 lot subdivision beyond the existing subdivision.

The Defendants make much of the fact that the Waltham Board of Survey has approved Defendants' plan entitled Pigeon Hill Estates showing a subdivision of Parcels A, B1, B2 and B3 into 58 parcels, access to which is over Pigeon Lane and which is tied in to the Woodland Park and DeVincent subdivisions. The Supreme Judicial Court in Dolan v Board of Appeals of Chatham, 359 Mass. 699 (1971) has held that approval of a subdivision under the Subdivision Control Law does not give any rights to use ways therein to lots outside of the subdivision. The court stated at page 701 that "The suggestion that the planning board's approval of the way under the statute vests some rights to use it in the plaintiff whose lot was not within the subdivision, finds no support in the statute..." The court hence rules that the defendants have acquired no rights over Pigeon Lane as laid out in the Woodland Park and DeVincent subdivision.

The parties herein have called the court's attention to two recent cases by letters to the court, the last being dated May 23, 1983. O'Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983) involves overburdening of a prescriptive easement which defendants herein seek to distinguish on the ground that the easement in the present use is an improved one. The court is not persuaded. The second case is that of Canton v. Board of Survey and Planning of Waltham, 15 Mass. App. Ct. 978 (1983) which involves two of the present defendants, namely Lauricella & Amelia, Trustees. In this case Lauricella & Amelia objected to Plaintiff Curtin tying in his subdivision to their Pigeon Hill Estates Subdivision on the ground that Curtin had no right of way over Pigeon Lane through the Pigeon Hill Estates Subdivision. Again, the case may be distinguished but only by straining. Neither case aids the defendant's claim that their tie in of the Pigeon Hill Estates Subdivision gives them rights over Pigeon Lane as it now exists, nor to their claim that such a tie in will not overburden defendant's rights of way to Pigeon Lane.

The defendants also make much of the fact that the planning board required the developers of Woodland and DeVincent to "stub" the road and utilities so that others might attach other lines on to them. However this may be, the "stubbing" itself gives no rights to the Defendants to enter Pigeon Lane to hitch on to the developed portions thereof and the Court so rules. There was evidence from town officials that the design and construction of Pigeon Lane can safely handle traffic added by the Pigeon Hill Estates subdivision. However, it does not meet the issue of whether or not this new development will overburden any rights that may exist in Pigeon Lane. In the Court's view, exercise by the owners of said lots of the right to use Pigeon Lane will overburden the easement.

To sum up, the Court finds and rules that the Defendants' rights to Pigeon Lane are limited to an area 20 feet in width through the Woodland Park and DeVincent Subdivisions, the 20 feet located in the mid section of Pigeon Lane as laid out on the subdivision plans and that these rights are for access to and from Parcel A by grant and Parcels B1 and B2 by prescription and in addition, the proposed building of houses on 57 lots and use by their owners of the way would overburden Pigeon Lane.

Plaintiffs have submitted a document entitled "Plaintiffs' Request For Rulings of Law," which contains 19 requests. Those numbered 1, 2, 4, 9, and 13-15 are allowed; those numbered 3, 5-8, 10-12, and 16-19 are denied.

Defendants have submitted a document entitled "Defendants' Request For Findings of Fact" which contains 28 requests. Those numbered 1, 2, 4-8, 11-19, 22-25, and 27 are allowed; those numbered 3, 9, 20, 21, 26 and 28 are denied; number 10 is denied for assuming facts not in evidence.

Defendants have also submitted a document entitled "Defendants' Request For Rulings of Law" which contains 13 requests.Number 9 is allowed; numbers 1-8 and 10-12 are denied and number 13 is denied for lack of clarity.

Judgment Accordingly.

exhibit 1