ALLAN JACQUES, JOAN JACQUES, JOHN R. VALERI and KATHERINE L. VALERI vs. HENRY LaLIBERTE and LAURETTE LaLIBERTE.

The plaintiffs' original complaint in this matter was filed June 24, 1984 and amended September 9, 1985. The plaintiffs seek a determination of the rights of the parties in and to a parcel of land situated between Lake Drive and Upper Partridge Reservoir a/k/a Partridge Pond (the "Pond"), shown as Lot 45 on a plan entitled "Plan of Partridge Lake Sites, Upper Partridge Reservoir (So Called) Owned and Developed by Shadow Land Co. Westminster, Mass." (the "Plan") (Exhibit 18). Said plan is recorded with Worcester Northern District Registry of Deeds [Note 1] in Book 53, Page 25. The defendants' counterclaim alleges an ownership interest in Lot 45 or in the alternative, a prescriptive easement over said lot for access to the Pond.

A trial was held on June 10, July 3, 28 and October 3, 1986 at which a stenographer was sworn to record and transcribe the testimony. A view of the locus was taken on July 3, 1986. Fifteen witnesses testified and thirty-three exhibits were introduced into evidence; all exhibits are incorporated herein for the purpose of any appeal. The decision in this matter has been stayed pending attempts by the parties to resolve their differences.

Based on the foregoing, I find as follows:

1. Both the complaint and counterclaim refer to certain uses made of the Pond. All parties agree that the Pond is not a Great Pond and there is no evidence as to record ownership of the Pond. The parties at trial have stipulated that none of the lots in question extend into the Pond and I make no determination as to the rights of any of the parties concerning any uses in or on the Pond.

2. The plaintiffs Valeri sold their property on Partridge Pond by a deed, unrecorded as of June 10, 1986, which conveyed their interests in Lot 45 to the plaintiffs Jacques.

3. The plaintiffs claim a 9/10 fee interest in Lot 45. This claim is based in part on a deed from Simpson to Savage dated December 21, 1946, recorded in Book 628, Page 75, the pertinent language which reads:

a certain tract of land situated in said Westminster . . . adjoining Partridge Lake which tract is supposed to contain one and five eighths acres, more or less, and is so much of the land described in a deed from Peter Kahkola to William E. Simpson and Lavina M. Simpson . . . recorded with Worcester Northern District Deeds, Book 497, Page 492 as has not previously been conveyed by the said William E. Simpson and Lavina M. Simpson. Said land is more specifically shown on a plan entitled "Partridge Lake Sites" Charles H. Davis, C.E. of Fitchburg, Mass. . . . filed with Worcester Northern District Deeds, Plan Book 53, Page 25 and comprises, as shown on said plan, Lots #4, 15, 16, 17, 21 and 24. Together with the right, in common with others, to pass over any right of way leading from the highway to said lots which I may possess.

4. The Simpsons granted various persons specific rights to pass and repass over Lot 45 for the purposes of boating, bathing and fishing, by at least three separate deeds (Exhibits 9, 10 and 11). In addition thereto, certain persons were conveyed fractional interests in said lot.

5. As argued by the plaintiffs, there is no plan complying with Land Court standards which establishes the boundaries of Lot 45. Clearly, however, there is a lot of vacant land running from Lake Drive to the Pond, lying between the land of the plaintiffs Jacques and the land now or formerly of the plaintiffs Valeri. This lot is referred to herein as Lot 45.

6. From the summer of 1962 or before, there have been paths of varying width and definition running over Lot 45 from Lake Drive to the shore of the Pond.

7. From sometime prior to the summer of 1962, a small pier (the "Dock") has extended into the waters of the Pond from approximately the center of Lot 45. The Dock was rebuilt in 1963 by the defendants' predecessor in title, Mr. Kavulski. There has been a "Dock" in this approximate location since before 1962 to present, except for a period when it was removed for repairs or rebuilding by the defendants.

8. The defendants' predecessors in title have passed over Lot 45 for access to and from the Pond, and in addition thereto, used a portion thereof near the water for the construction, repairs and maintenance of the Dock.

9. The defendants acquired Lots 17 and 18 from Kasys Kavulski by deed dated June 30, 1964, recorded in Book 975, Page 423.

10. From the summer of 1964 until present, the LaLiberte family, which now includes seven children, and their guests have passed and repassed over Lot 45 for access to and from the Pond and have used a small area near on the shore in conjunction with their activities in the Pond; including maintenance of the Dock, and general recreation. Such activities have been open, notorious, continuous, adverse and under a claim of right. Ryan v. Stavros, 348 Mass. 251 , 262 (1964).

In consideration of the foregoing, I find and rule as follows:

1. There is insufficient evidence before the Court to establish a fee interest in Lot 45 in either the plaintiffs or the defendants. While the plaintiffs did present testimony of a Land Court Examiner as to his opinion of fee ownership, this opinion was based in a large part on the deed referred to in finding no. 3 above. I cannot find that the language in the 1986 deed conveys any interest in Lot 45. Such conclusion is further supported by specific grants by the Simpsons in Lot 45 as set forth in finding no. 4. Should fee ownership be an issue hereafter, the matter of title would best be resolved by a petition under c. 185, §26 or §26A.

2. The use of Lot 45 by the defendants LaLiberte and their predecessors in title has established an easement by prescription to pass and repass over Lot 45 from Lake Drive to the Pond, and to use a portion of said lot as set forth herein for recreational activities in conjunction with the Pond.

3. The Kavulskis, and more recently the LaLibertes, have used various routes to cross Lot 45 depending upon the growth of vegetation, construction projects, encroachments of structures on abutting parcels and other physical causes. As noted above, the parties have attempted but have unable to agree upon a suitable width and location of the easement. Under such circumstances, the easement will be located by the Court. Anderson v. DeVries, 326 Mass. 127 , 131 (1950) and cases cited. Accordingly, the easement is to be five feet in width, running northerly from Lake Drive along the westerly line of Lot 45 exclusive of structures which may be encroaching from Lot 46 (from the easterly boundary of the plaintiffs Jacques' steps), to Upper Partridge Reservoir; thence running along the shore of said reservoir to a point two feet beyond the northeasterly edge of the Dock as it presently is or most recently was situated. At the defendants' option, the above location may be varied reasonably on said lot to avoid areas of heavy vegetation. The defendants shall file a plan with this Court showing such location within six months hereof. The defendants may improve such easement as in their opinion may be reasonably necessary or desirable to provide access to the Pond.

4. The defendants have made requests for certain findings of fact and conclusions of law which I decline to make as I have made my own herein.

Judgment accordingly.