WILLIAM J. GALVIN vs. JOHN TEDESCO and ROSEMARIE TEDESCO.

The plaintiff herein seeks to establish title by adverse possession to certain lands in the Monument Beach section of the Town of Bourne, and to establish an easement by prescription over other land.

The complaint was filed October 16, 1985. A trial was held March 4, April 8, May 14 and August 27, 1987 at which a stenographer was appointed to record and transcribe testimony. Fifteen witnesses testified and twenty-nine exhibits were admitted into evidence. All exhibits are incorporated herein for the purpose of any appeal. A view of the locus was taken March 3, 1987 in the presence of counsel.

On all the evidence, I find and rule as follows:

1. The plaintiff is the record owner of a parcel of land located on Worcester Avenue in the Monument Beach section of the Town of Bourne. A portion of this land including the easterly boundary thereof is shown on a plan entitled "Definitive Plan Subdivision of Land of Agnes E. Therrien into Lots 1 & 2 in Monument Beach, Bourne," dated February 22, 1979; (the "Plan") Exhibit 4.

2. The property was acquired by Ella Mae Galvin, wife of the plaintiff, by deed of Frank Crowley dated June 29, 1945, recorded in the Barnstable Registry of Deeds, [Note 1] Book 631, Page 231; Exhibit 1.

3. While title was originally taken in the name of Mrs. Galvin, Mr. Galvin negotiated the purchase. The property was acquired for and has been used as a family summer residence since its acquisition. The Galvins have eight children and, at present, 32 grandchildren.

4. By deed of Ella Mae Galvin dated August 5, 1970, recorded in Book 1481, Page 430, the plaintiff and his wife became tenants by the entirety; Exhibit 2.

5. Ella Mae Galvin died May 2, 1984.

6. The defendants are the record owners of Lots 1 and 2 as shown on the Plan, having acquired such title by deed of Joseph and Monica Yang dated September 5, 1985, recorded in Book 4701, Page 234; Exhibit 7.

7. The Yangs acquired title from Agnes Therrien by deed dated February 5, 1980, recorded in Book 3060, Page 172; Exhibit 6. Ms. Therrien acquired title from deed of Donato, a/k/a, dated February 14, 1978, recorded in Book 2662, Page 85.

8. Prior to purchasing the property in 1945, Mr. Galvin met with the then owner, a Mr. Crowley, who pointed out the boundaries in a general manner. Mr. Galvin believed that the westerly property line ran from Worcester Avenue along a course now shown on the Plan as running S 20°38' 25"W 128.59 feet then continuing beyond said line to the boundary of land shown as belonging to Thomas M. and Florence J. Horan. Mr. Galvin further believed that a right of way to the beach was appurtenant to the property, but was not certain of its actual location.

9. The lands of which the defendants are record owners and in which the plaintiff claims an interest are 1) the rectangular parcel shown on the Plan as measuring 29.4 feet by 56.27 feet (the "Rectangle"); 2) a right of way not shown on the Plan but clearly evident on the ground and located on the Plan by the plaintiff and his witnesses approximately six feet in width running northwesterly from the northerly end of the concrete drive, across Lot 2 to about the intersection of the way worded "Subject to Right of Way" and "Mean High Water" both shown on the Plan; and 3) that portion of Lot 2 lying northeasterly of the claimed right of way.

THE RECTANGLE

10. Sometime in 1946 or 1947, the plaintiff had the Galvin property landscaped at least to the extent of placing loam along the westerly boundary including the westerly line of the Rectangle. In additon, grass was planted on the Rectangle along with some fruit trees. The fruit trees did not prosper. The plaintiff and his family have mowed the grass and otherwise maintained the area of the Rectangle from 1947 or 1948 to date.

11. In 1948, the plaintiff acquired a large flagpole from the former Monument Beach Post Office. In the fall of that year, the flagpole was erected on what Mr. Galvin believed to be the westerly boundary of the Rectangle. Starting in the spring of 1949, the flag was flown on a daily basis from around May 30th to about October 12th of each year, with one of the younger members of the family raising and lowering the flag each day. This practice has continued until the present. The pole is maintained by being taken down and painted on an annual or semiannual basis by various members of the family.

12. Shortly after acquiring the property, the Galvins acquired a small two seat rowboat. When the boat was taken out of the water, it was stored on the Rectangle and usually secured to the flagpole. After five or six years, the original boat wore out and was used on the Rectangle as a "planter." The Galvins have had other small boats which were similarly stored for a period of thirty to thirty-five years.

13. In addition to the foregoing, the plaintiff, his family and guests have used the Rectangle for recreational activities such as badminton and horseshoes and for parking cars; the evidence, however, does not indicate the length of time during which such activities occurred.

14. Until the matter was raised by the defendant in 1985, no one questioned the Galvins' right to use the Rectangle.

RIGHT OF WAY

15. There presently exists a well defined pathway approximately six feet in width running from the end of the concrete pavement across Lot 2 to about the intersection of the way marked "Subject to Right of Way" and the line marked "Mean High Water," both as shown on Exhibit 4.

16. Commencing in 1945 and for a period of at least forty years thereafter, the Galvin family and their guests have used the aforesaid pathway continuously and openly for access including cartage of small boats to and from the beach.

17. No one has questioned the Galvins' right to use this pathway until the defendants did so in 1985.

TRIANGULAR PARCEL NORTHWESTERLY OF PATHWAY

18. While the plaintiff's family mowed grass on a portion of this area and used it for recreational purposes, there is insufficient evidence to establish the extent of such activities or the actual area on which such activity was conducted.

In consideration of the foregoing, I find and rule that:

1. The plaintiff's use of the Rectangle by himself and his family, which use was actual, open, notorious, exclusive and adverse for a period of well in excess of twenty years is sufficient to establish title to said parcel by adverse possession. While most of the plaintiff's activities were seasonal, considering the character of the property, the purposes for which it is adopted and the uses to which it has been put, such activities are sufficient to establish adverse possession, Ryan v. Stavros, 348 Mass. 251 , 262 (1964).

2. The plaintiff and his family's use of the pathway for a period of approximately forty years was under a claim of right and adverse and sufficient to establish the plaintiff's title to said right of way by prescription.

The Court has no plan before it delineating the right of way or the actual location of the flagpole. Accordingly, the plaintiff is instructed to file with this Court a plan in accordance with this decision showing the location of the easement and the westerly boundary of the Rectangle, said boundary to be determined by the actual location of the flagpole. Said plan shall be filed within ninety days of this order or the final order of any appeal hereof.

Judgment accordingly.