ALEXANDROS TSITOS vs. ANTHONY SCOLARO and ANTONIO RIGGILLO, Trustees of Malden Properties Trust.

This cause came on to be heard upon the plaintiff's action under G.L. c. 187, §2 to establish an easement by prescription over a driveway separating the plaintiff's property at 105-109 Ferry Street, Malden and the defendants' property at 113-121 Ferry Street, Malden. The driveway is located on the defendants' land. The defendants deny that a prescriptive easement exists and have counterclaimed asking that the plaintiff be restrained from entering upon the defendants' land.

A trial was held on July 25, 1988 at which a stenographer was sworn to record and transcribe the testimony. An agreed stipulation of facts was submitted, four witnesses testified and sixteen exhibits were introduced into evidence, which exhibits are incorporated herein for the purpose of any appeal. At the close of the plaintiff's evidence, the defendants made a motion for a directed finding.

I find the following:

1. The plaintiff, Alexandros Tsitos, and his wife, Eleftheria Tsitos, own the property located at 105-109 Ferry Street, Malden.

2. The plaintiff and his wife purchased the property at 109 Ferry Street on March 3, 1975 from the K & R Realty Company, Inc. Irving I. Katz and Irving I. Reiser signed the deed as President and Treasurer respectively of the K & R Realty Co., Inc.

3. The plaintiff and his wife began operating Town House Pizza at 109 Ferry Street in 1972 at which time the plaintiff rented the property from the K & R Realty Co., Inc., namely Irving I. Reiser.

4. Irving Reiser, Irving Katz and Arnold Rubin purchased the property at 109 Ferry Street in 1959 from the estate of Pearl Green. On July 22, 1965, Reiser, Katz and Rubin conveyed 109 Ferry Street to the K & R Realty Company, Inc.

5. The defendants, Anthony Scolaro and Antonio Riggillo, Trustees of Malden Properties Trust, purchased the property at 113-121 Ferry Street on December 30, 1986 from Anthony Scolaro.

6. Anthony Scolaro purchased the property at 113-121 Ferry Street on July 25, 1986 from Edward E. Senibaldi. Prior to the ownership of this property by Edward Senibaldi, the property was held from 1969 to 1982 by either Martin or Lillian Bornstein.

7. On or about March 24, 1987, the defendants erected a fence blocking access to the driveway located on 113 Ferry Street adjacent to the plaintiff's property and also erected a fence along the property line between 109 and 113 Ferry Street and also along the Eastern Avenue access. The defendants' property is now completely enclosed by fences.

8. Since the plaintiff's tenancy in 1972 to the defendants' erection of the fence on March 27, 1987, the plaintiff has utilized the driveway located adjacent to his property at 109 Ferry Street for delivery of goods to his premises and for the removal of trash.

At issue herein is whether the plaintiff has utilized the driveway located on the northerly boundary of the defendants' property continuously and without interruption for a period of twenty years prior to March 24, 1987 such as to acquire an easement by prescription. A prescriptive easement can be acquired upon the land of another by open, notorious, adverse and continuous use for a period in excess of twenty years. G.L. c. 187, §2; see Tucker v. Poch, 321 Mass. 321 , 323 (1947); Ryan v. Stavros, 348 Mass. 251 , 263 (1964). These requirements listed above allow ". . . [the owner] notice of the hostile activity of the possession so that . . . the owner may have an opportunity to vindicate his rights by legal action." Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

The plaintiff's case herein rests upon the testimony of the plaintiff, Alexandros Tsitos and a former owner, Irving Reiser, whose prior use of the driveway is needed to establish the necessary period of twenty years or more for a prescriptive easement. The plaintiff also presented Michael Bornstein, son of Martin and Lillian Bornstein, the prior owners of the defendants' property, to testify as to the prior use. Michael Bornstein testified that he placed a dumpster in the driveway for his personal use and allowed the plaintiff to use the dumpster for the payment of a monthly sum of money. In addition, the plaintiff paid for one-half of the cost of the dumpster. Mr. Bornstein testified that the driveway was utilized for deliveries to both the plaintiff's building at 109 Ferry Street and the defendants' building at 113 Ferry Street.

In addition to the testimony of Michael Bornstein, Irving Reiser testified as to the use of the driveway prior to 1972. The period of 1967 to 1972 is critical to the plaintiff's claim of a prescriptive easement. The testimony of Mr. Reiser is inconsistent and unclear as to the use of the driveway during this period. The 109 Ferry Street property had been rented at various times; however, Mr. Reiser was unable to identify any prior tenant or occupant by name or from records or as to the specific use made of the driveway. At some point between 1967 and 1972, after a fire had occurred, the driveway was utilized by repairmen hired by Mr. Reiser to restore the building. In 1972, the plaintiff rented the premises.

Accordingly, on the basis of the evidence presented, I find and rule that the facts are insufficient to support a finding of open, notorious, adverse and continuous use uninterrupted for a twenty year period such as is necessary for the plaintiff to acquire an easement by prescription. I cannot infer from the facts as presented that the use by the plaintiff and his predecessors in title was adverse to the defendants' predecessors in title.

Consistent with the reasoning behind this decision, the plaintiff be and hereby is restrained from entering upon the defendants' premises, and the plaintiff shall remove any and all encroachments from the defendants' property.

Accordingly, the defendants' motion for a directed finding based on the evidence as presented is hereby allowed.

Judgment accordingly.