June 8, 1987

Norfolk, ss.

Sullivan, M. C.J.


The plaintiff, Louis Isenberg, owner of the premises now known as and numbered 45 Heath Street in Brookline, in the County of Norfolk, seeks a declaratory judgment as to rights, as appurtenant to said premises, in a driveway adjacent thereto and situated on the adjoining land of the defendants, Stanley Austin and Gertrude Austin, now known as and numbered 9 Reservoir Road in said Brookline. The plaintiff's land is shown as Lot A and that of the defendants as Lot B on a plan prepared by T. F. Hennessey dated September 29, 1960 (Exhibit No. 4) in connection with earlier litigation over the same driveway between the predecessors in title of the present parties. A copy of the relevant portions of the 1960 plan is attached hereto as Appendix A. The plaintiff contends either that he has acquired title to the portion of the driveway in dispute by adverse possession or that he has acquired a prescriptive right to use it by virtue of open, notorious and adverse use thereof since 1925 under a claim of right by the plaintiff and his predecessors. The defendants deny the plaintiff's claim and argue that the use has always been permissive. I conclude that the plaintiff has established his right as appurtenant to the premises conveyed to his wife by the deed hereinafter referred to, to use the driveway between the northwesterly line of a brick garage shown on Appendix A extended southwesterly, to and from Heath Street at its junction with Reservoir Road.

A trial was held at the Land Court on February 11 and 12, 1987, at which a stenographer was appointed to record and transcribe the evidence. Testimony was given by the plaintiff; Gerald Budd, the son of a previous owner; the defendant Stanley Austin; his son, Craig B. Austin; the defendant, Gertrude Austin; and Michael Isenberg, the son of the plaintiff. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appeal. A view of the subject properties was taken on April 15, 1987, in the presence of counsel.

On all the evidence I find and rule as follows:

1. The late Marilyn D. Isenberg, wife of the plaintiff, acquired title to Lot A on a plan entitled "Plan of Land in Brookline, Mass." dated May 19, 1925 by W. J. O'Hearn, recorded with the Norfolk County Registry of Deeds (to which Registry all recording references herein refer) as Plan No. 429 of 1925 (Exhibit No. 2). The probate proceedings in the estate of Marilyn D. Isenberg were not introduced at the trial, but the plaintiff's title was not disputed by the defendants.

2. A large tract of land situated on Boylston Street (Route 9), Heath Street and Reservoir Road was acquired by Francis P. Broderick, et. al, Trustees of the Heath Realty Trust from Marian C. Putnam, et. al, by deed dated December 27, 1922 and recorded in Book 1541, Page 629 (Exhibit No. 14).

3. Francis P. Broderick, et al, Trustees of Heath Realty Trust, conveyed to Joseph M. Jackson by deed dated June 2, 1925 and recorded in Book 1648, Page 28 (Exhibit No. 15) Lot A on the O'Hearn plan of 1925 (Exhibit No. 2). Although the plan does not show any buildings situated on Lot A, the application for the building permit for the house was made on behalf of one of the Trustees in the fall of 1923. There is no reference to the garage on Lot A in the building permit although the deed out to Mr. Jackson refers to "buildings" on the granted premises. It is unclear whether this phraseology is merely the usual language employed by conveyancers, but it does establish, however, particularly in view of the application for the building permit, that the house was built before the conveyance. In any event, the garage was constructed of the same brick as the house and appeared from the view to have been constructed at approximately the same time. This conclusion was confirmed by the fact that license plates have been found therein bearing the dates of 1926 and 1927.

4. A plan entitled "Plan of Land in Brookline, Mass." dated December 31, 1945 and recorded with a deed from the Trustees of Heath Realty Trust to Saverio Nardelli (Exhibit No. 17) as Plan No. 910 of 1948 in Book 2783, Page 487 (Exhibit No. 3) shows that both the plaintiff's house and garage were existing buildings prior to the conveyance to the defendants' predecessors in title. The garage doors face the present driveway, and it would be physically impossible to drive a car into the garage over any other route without reconstructing the present building or at some point driving over land of the defendants. A 1945 subdivision of the area in question shows an arc at the southwesterly corner of the plaintiff's land on Heath Street as did the earlier 1925 plan which strongly suggests that the developers anticipated a curved entrance to the driveway, which was then in existence, from Heath Street to afford access to the garage and to facilitate the entrance from the public way. It would have been logical for Lot 13 to have been conveyed with Lot A or if the intention was to have Lot 13 serve both properties, to have included a grant of a right of way in the deed out of Lot A. Absent an intention to encumber only Lot 13 and not Lot 14 as well, there seems no reason to have two lots rather than only one.

5. In the deed from the then Trustees of the Heath Realty Trust to Saverio Nardelli (Exhibit No. 17) undated, but recorded in Book 2568, Page 140, the grantors excepted parcels already conveyed by them to third parties, including the conveyance to the predecessor in title of the plaintiff. Mr. Nardelli subsequently conveyed to Albert Rodney and wife, by deed dated April 18, 1950 and recorded in Book 2905, Page 82 (Exhibit No. 18) the land shown as Lots 13 and 14 on the 1945 plan. Mr. and Mrs. Rodney were the mother and father of the defendant Gertrude Austin. After Mr. Rodney's death, Mrs. Rodney conveyed said lots to her daughter, Gertrude Austin, by deed dated December 31, 1970 and recorded in Book 4709, Page 533 (Exhibit No. 19) and Mrs. Austin subsequently conveyed to herself and her husband as joint tenants by deed dated November 28, 1981 and recorded in Book 5951, Page 496 (Exhibit No. 20).

6. The chain of title to plaintiff's land devolved through the estates of Joseph M. Jackson and Mary J. Jackson, Norfolk Probate Nos. 91708 and 97881, to Mary A. McAvoy whose administratrix, Dorothy McAvoy, conveyed Lot A to Zelda Budd, by deed dated November 6, 1957 and recorded in Book 3601, Page 39 (Exhibit No. 16). It was Mrs. Budd who conveyed the locus to Mrs. Isenberg.

7. Mrs. Budd is the plaintiff in a previous Land Court case involving the driveway, Miscellaneous Case No. 32773 in equity, brought against Albert Rodney, et al, and claiming that the plaintiff had the right to use the driveway approximately 100 feet in length and 12 feet in width for vehicular traffic by prescription and that the defendants had placed a barrier in such a way as to bar the plaintiff's access. The pleadings in the earlier action were admitted as Exhibit Nos. 8 and 9, together with answers to interrogatories by Mary and Albert Rodney (Exhibit Nos. l0B and 11B) and by Zelda Budd (Exhibit No. 12B). n the earlier litigation, the parties took essentially the same positions as in the present action; however, a son of Mrs. Budd testified at the current trial that the source of the difficulty between the parties was not the driveway, but an extraneous matter which led to the blocking of the driveway as part of the overall dispute between the neighbors. The docket in the earlier litigation showed several continuances of plaintiff's motion to assign for trial, the last being approximately 15 years ago, and no further action taken.

8. The evidence establishes that the driveway has been used by the owners of the plaintiff's house since about 1925, but understandably there are gaps in the degree of proof as to various segments of the sixty year time span. The only direct evidence as to use by the Jacksons of the driveway for the period beginning in 1925 comes from the presence in the garage of the Massachusetts license plates for the years in the relevant time frame. Mary A. McAvoy who apparently inherited the Heath Street premises from Mrs. Jackson did not own a car nor did she drive, and the use made of the driveway on her behalf is unclear. It seems probable that friends, delivery services and the like continued to use the driveway for convenience.

9. The defendants claim and I accept their testimony as true, that neither Mary nor Dorothy McAvoy drove and that they did not own a car. There was no evidence of abandonment by Mary McAvoy of any existing rights, only a lack of knowledge of the doctrine of prescription. If the Jacksons through twenty years of use had acquired prescriptive rights in the driveway, mere non-user without more did not terminate them. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421-422 (1979), Delconte v. Salloum, 336 Mass. 184 , 188 (1957). There was evidence that Dorothy McAvoy asked Mrs. Austin's father, Albert Rodney, not to give the future owner of 45 Heath Street any trouble. The defendants claim that Mr. Rodney agreed not to cause such trouble so long as the new owner "is a nice man and plows it, he can use the driveway." This is one of the incidents on which the defendants base their argument that the use of the driveway was permissive, not adverse. If in fact this incident occurred, it can be interpreted in many ways and not merely as an admission that the plaintiff's predecessor recognized that there was no right to use the driveway.

10. The Budd family to whom the Heath Street premises were sold in 1957 used the driveway regularly. Relationships between Mr. and Mrs. Budd and the Rodneys, the then owners of 9 Reservoir Road, soured for reasons other than the driveway, as I have found above, and the quarrel precipitated a driveway confrontation which resulted in the earlier Land Court litigation where the plaintiff's predecessor claimed a prescriptive right and the defendants interposed a defense of permissive use. The issues having thus been drawn were never determined. The plaintiff then purchased 45 Heath Street, but the closing was delayed by the problem of the driveway.

11. It was at the actual closing in 1964, with his wife's grantor, Zelda Budd, that Mr. Isenberg first learned that there was a dispute as to the rights of the owners of 45 Heath Street to use the portion of the driveway located at 9 Reservoir Road and then owned by Albert and Mary Rodney. The closing was then postponed until the Isenbergs had an opportunity to discuss the dispute with their future neighbors, the Rodneys, in June of 1964. According to the testimony of Louis Isenberg, he and his wife told the Austins that they hoped to resolve any future problems through discussion rather than by blockage of the driveway, and the Rodneys agreed. There was no assertion of any right by the Rodneys to bar use of the driveway at that time nor any discussion of permission to use the driveway in exchange for plowing. Thereafter, the Isenbergs, satisfied that the driveway dispute would be worked out amicably, purchased the premises at 45 Heath Street from Zelda Budd on June 22, 1964, moved into the house and used the disputed portion of the driveway as access to their garage. Stanley Austin testified to the contrary. Mr. Austin denied that Louis Isenberg ever conversed with Albert Rodney prior to purchasing 45 Heath Street. Mr. Austin recalled that Rodney and Isenberg first spoke about the driveway several months after the Isenbergs had moved to 45 Heath Street. Whatever version represents the actual chronology of talks between the owners of the two properties, the Isenbergs and their children used the driveway from the time of their purchase of 45 Heath Street until immediately prior to the institution of this litigation, a period of well over twenty years, and they indeed have arranged to have the driveway plowed in the area they use; this would be their obligation if they wanted to use the driveway to reach the public way, and the conversation on this subject may have been intended only to make this clear. My experience in closings suggests, and I so find, that Mr. Isenberg and Mr. Rodney did speak about the problem before the Budd-Isenberg purchase was consummated and that Mr. Rodney expressed his wish that the Isenbergs do the plowing. I do not believe that Mr. Isenberg sought permission to use the driveway, but only that he clarified the situation before the Budd purchase was closed. I also find that the plaintiff agreed to plow his portion of the driveway, but not as a condition of his right to use it.

12. Mr. Isenberg and Mr. Austin also disagreed as to conversations which they had after Mr. Rodney's death as to the possible disposition of 9 Reservoir Road and a sale of one-half of the driveway to the plaintiff. The defendant Stanley Austin claimed that the plaintiff sought to purchase a portion of the driveway or, alternatively, to obtain formal permission to use it and that he told the plaintiff that he might continue his use on the same basis as he had under the agreement with Mr. Rodney. The plaintiff denied that he had ever sought permission to use the driveway or an agreement to purchase a portion of it.

13. The present controversy was precipitated by the plaintiff's decision to put his house on the market for sale and the rejection of an offer to purchase made by the defendants' son Craig. The defendants learned from a real estate broker showing the plaintiff's house that it had been listed with an appurtenant right to use the driveway; the defendants objected to his characterization. The plaintiff also contends that the defendants' son made an offer to purchase the premises which he rejected as being insufficient and that this added to the conflict between the parties. The plaintiff argues that the resumption of the old dispute about the right to use the driveway led to the parking by the defendants or those claiming under them in such a way as to block access whereas in at least one instance the defendants countered that car trouble was responsible for the car shown in the photograph which is Exhibit No. 21. An illustration of the parking problem appears in other photographs such as Exhibit Nos. 23 and 24. Prior to this latest dispute, the plaintiff, in 1982 to 1983, paved a strip of his lawn adjoining the driveway as well as an area between the garage and back door of his house to afford additional parking for his children. These areas are located on the plaintiff's land and apparently led to no complaint by the defendants. They have not raised any question of an overburdening of the easement since they dispute that the plaintiff has an easement to use the driveway.

14. While it might be possible for the plaintiff to pave a portion of his side yard situated between the house and the present driveway to afford access to the garage, it would be impossible to swing a car into the garage without crossing onto land of the defendants. To afford access to the garage from a driveway constructed solely on the plaintiff's land on either side of the house would require a complete reconstruction of the garage.

The issue in the present case is a narrow one. There has never been a written grant of easement from the owners of the premises at 9 Reservoir Road to the owners of the premises at 45 Heath Street to use the driveway situated between the two houses, but in fact the driveway has been used for more than 60 years by the owners from time to time of 45 Heath Street. The plaintiff claims that he has a right to do so by virtue of prescription. He also claims that he had acquired title to the area in question by virtue of adverse possession although there was no evidence showing the type of use which would ripen into a fee ownership of the driveway area after twenty years. See Nordblom v. Moss, 351 Mass. 172 , 174 (1966) (disputed area enclosed for claimant's exclusive use). The defendants on the other hand claim that the use by the plaintiff and his predecessors in title for this extended period of time has always been permissive. As I have earlier stated, I find and rule in favor of the plaintiff.

The rule as to the acquisition of an easement by prescription has frequently been stated by our appellate courts as well as by the justices of the Land Court. There must be open, notorious, continuous, adverse and uninterrupted use for a period of at least twenty years under a claim of right. G.L. c. 187, ยง2, Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Where there has been at least twenty years of such use, the origin of which is not explained, there is a presumption that the use is adverse and under a claim of right. Flynn v. Korsack, 343 Mass. 15 , 18 (1961); Tucker v. Poch, 321 Mass. 321 , 324 (1947). A presumption arises that the use is under a claim of right and adverse when there is abundant evidence of open, uninterrupted and unexplained use for not less than twenty years. White v. Chapin, 12 Mass. (Allen) 516, 519 (1866); Glenn v. Poole, 12 Mass. App. Ct. 292 , 295 (1981). Once the plaintiff had shown such use, it was incumbent upon the defendants to prove that the use had been permissive only. It is true that over the years ambiguous statements as to the nature of the use by the plaintiff's predecessors in title have been made and the testimony raises the question as to whether the defendants' predecessors in title allowed the plaintiff to use the driveway in return for his agreement to keep it plowed. After a study of the testimony of the parties and the history of the garage, the angle at which it was constructed and considering the presence of the driveway on the adjoining land for nearly a quarter of a century before the defendants' home was built, I can only conclude that the plaintiff's predecessors in title acquired an easement by prescription to pass and repass on foot and in vehicles over the driveway to and from the garage situated on land of the plaintiff and Heath Street at its junction with Reservoir Road before the common owner conveyed out the larger tract of which the two properties form a part. Admittedly, the evidence is spotty about the actual use during some of the period between 1925 and 1957, but there is no dispute that the driveway pre-dated the 1950 acquisition by the Rodneys of the land on which it is situated and that up until that time it had served only the garage on the plaintiff's land. While we do not have the actual date on which the garage was constructed, the evidence which has been presented satisfies me, and I so find, that the garage was built at the same time as the house and that it has been used since that period of time.

The plaintiff did not claim an easement by implication, but this seems an appropriate case for the invocation of this doctrine. The trustees of the Heath Realty Trust, who built the plaintiff's home, appear also to have built the garage. At the time they sold Lot A to Mr. Jackson, they apparently also had constructed the garage on Lot A in such a way that access to it would naturally be had only over the adjoining land which they also owned. These facts would give rise to an easement by implication upon severance of the parcels once held in common over one of which the grantor's intent is presumed to have been to grant an easement for the benefit of the other as determined by the circumstances surrounding the conveyance. Perodeau v. O'Connor, 336 Mass. 472 , 474 (1957), Hurley v. Guzzi, 328 Mass. 293 , 296 (1952). If in ascertaining the parties' intent the circumstances at the time of severance are found to be unclear, the subsequent use of the parcels severed may be revealing of the practical construction given to the conveyance. Bacon v. Onset Bay Assoc., 241 Mass. 417 , 423 (1922). There is no requirement that such easements be shown to be more than reasonably necessary to the use and enjoyment of the severed parcel. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933), See also Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985). The plaintiff, however, did not claim an easement by implication in his complaint, but the evidence at the trial showed that this in fact had occurred. The plaintiff shall have ten days after the entry of the decision in this case at his election to conform the allegations in his complaint to the evidence at the trial. After the expiration of the ten day period, a judgment will be entered.

On all the evidence I find and rule as follows: that the plaintiff's predecessors in title acquired a prescriptive right to use the driveway situated on land of the defendants no later than 1945; that the plaintiff and his predecessors in title never abandoned the rights acquired by prescription and that there is appurtenant to the premises now known as and numbered 45 Heath Street in Brookline, in the County of Norfolk, the right to pass and repass over the driveway, on foot and in vehicles, to and from the garage and Heath Street at its junction with Reservoir Road; and that there also was a right by implication granted to Joseph Jackson by the Trustees of the Heath Realty Trust to use what is now shown as Lot 13 on a plan entitled "Plan of Land in Brookline, Mass." dated December 31, 1945 by H. M. Fletcher (Exhibit No. 3) for said purposes of a driveway, but that such right was not claimed by the plaintiff in his complaint and that he is to have ten days, if he so elects, to amend the complaint to conform with the evidence at the trial. The defendants have requested that the Court make 101 findings of fact and 27 conclusions of law. The Court has not ruled on each of such requests in my belief that this decision sets forth the material facts and the governing law.