REG 41931

December 2, 1988

Suffolk, ss.



Carabetta Enterprises, Inc., the plaintiff herein, seeks to register and confirm title pursuant to the provisions of G.L. c. 185, ยง1 to a parcel of land situated in Revere. Said property, hereinafter referred to as the "locus" is shown on a plan entitled "Plan of Land in Revere, Mass." dated January 29, 1986 by Norwood Engineering Co., Inc. and filed with the Court as Land Court Plan No. 41931A, hereinafter referred to as the "Plan."

On March 4, 1988, upon motion of the plaintiff, the Court severed and dismissed the petition as to Parcel "2" of said plan being an area of 25,357 sq. ft. and also as to the plaintiff's claim of the flats and riparian rights thereto.

Petition was filed April 15, 1986; the matter was referred to a Land Court Examiner who reported on June 18, 1986 that the plaintiff has good title as alleged, and proper for registration "as to Parcels 1 and 2, but not as to Lot 15 of locus."

On March 9, 1988 an answer was filed on behalf of the above defendants alleging:

1. a right of passage and easement in, upon and over the opening in the seawall at the corner of Cherry Street and Point Street as shown on the plan.

2. a right of passage and easement of passage along Point Street . . . northerly to the high water mark. . . .

3. a right to pass and repass over "Mermaid Way". . . .

4. certain rights to use the Broad Street tidal flats including parcel 2. . . .

In addition, the Attorney General entered an appearance but stipulated in Court with the plaintiff that the decree would recognize certain rights of the Metropolitan District Commission whereupon the Attorney General withdrew his appearance subject to review of any final decree.

Similarly, the defendant Geranian withdrew his objection subject to a stipulation as to a fence adjacent to his property as shown on the "Plan."

The plaintiff, in its memorandum of law, concedes to the defendants an easement as claimed for purposes of reaching, and impliedly passing through the opening in the seawall, provided that "the same is limited to passage only by foot." Inasmuch as there is no evidence of any use other than by foot, the foregoing shall be accepted as a stipulation. The claim of rights to pass along Point Street is not here in issue as the plaintiff claims no exclusive rights in that way.

A trial was held on March 16, 1988 at which a stenographer was sworn to transcribe the testimony. Five witnesses testified and four exhibits were introduced into evidence. The exhibits are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on March 16, 1988.

Upon consideration of the foregoing, I find as follows:

1. As to the five witnesses who testified, two limited their testimony to the right to pass through the seawall which right has been conceded by the plaintiff.

2. The defendants offered no evidence whatsoever as to any rights they may claim in "Mermaid Street" and accordingly, I find they have none.

3. Based on the testimony of Dorothy and James Furlong, I find that they and their predecessors in title have, since some time prior to 1964, each parked a motor vehicle openly and in plain view on the plaintiff's property in the immediate rear of 11-13 Pier View Avenue.

4. Although such use began as seasonal, it became year round in about 1977. Apparently at the present time the number of cars parked on the plaintiffs land at the above location varies from between three to eleven. There was, however, no credible testimony as to the length of time any vehicles other than those of Mr. and Mrs. Furlong have so used the plaintiff's property.

5. The defendant Edmund C. Bell has parked a motor vehicle openly and in plain view on the plaintiff's property at the rear of 7-9 Pier View Avenue since 1957.

6. Both the Furlongs and Mr. Bell reach their respective parking areas by driving over a portion of the plaintiff's land from "Cherry Street" between the southwesterly corner of said land and a utility pole; all as shown on said plan.

7. While both the Furlongs and Mr. Bell were acquainted with and on good terms with Mr. Simpson, the plaintiff's predecessor in title, there is no evidence that he ever gave permission for such use of his property.

8. The plaintiff apparently erected a chain across a portion of the access to the areas used by the aforesaid defendants for parking. It would appear that such barrier was in place for about a year, sometime after 1985, and was largely ignored by the said defendants who continued to access the said area by merely skirting the barrier.

In consideration of the foregoing, I find and rule that the defendants Furlong have acquired, by actual, open, notorious, exclusive and adverse use, an easement for the parking of two motor vehicles at the rear of 11-13 Pier View Avenue on the plaintiff's land and that the defendant Bell has similarly acquired an easement for the parking of one motor vehicle at the rear of 7-9 Pier View Avenue on the plaintiff's land. Such activities have been sufficient for the requisite period to meet the standards set forth in Ryan v. Stavros, 348 Mass. 251 , 262 (1964).

The fact that the Furlongs' use began as seasonal is immaterial inasmuch as such use was similar to that of many owners of similar property in the area, and such that persons residing in the area would be justified in regarding the defendants as exercising the exclusive dominion and control incident to ownership of such portions of the locus as they so used, thus it is sufficient to establish an easement by prescription. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-157 (1979); Mahoney v. Heebner, 343 Mass. 770 (1961).

While it is true that the defendants were on friendly terms with the plaintiff's predecessor, there is, as stated, no evidence previously of permission or any other explanation as to a use by the defendants which can be found permissive. It is well established that wherein there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription . . . unless controlled or explained. Tucker v. Poch, 321 Mass. 321 , 324 (1947). Even if there was acquiescence, acquiescence under the circumstances is not the same as permission. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). Certainly the activities of the above three defendants was such as to put the record owner on notice to the hostile activity of the possession so that he, the owner, might well have had an opportunity to take the appropriate legal action to vindicate his rights. Ottavia v. Savarese, 338 Mass. 330 , 333 (1958).

As found above, the defendants' access to the various parking areas was over the same general area of the plaintiff's land, but the exact location thereof did vary to some extent. While under the circumstances, the Court may fix the boundaries of such easement, American Oil Co. v. Alexanderian, 338 Mass. 112 , 115 (1958), I find that the said defendants have acquired an easement of at least eight feet in width running from Cherry Street northerly to about the southerly line of the Bell property, as extended and thereafter, 16 feet in width to the northerly line of the Furlong property as extended. The purposes thereof are for the parking of one motor vehicle at the rear of the Bell property and two motor vehicles at the rear of the Furlong property as well as for access to such spaces over said easement.

The plaintiff and named defendants will have sixty days from the date of any final judgment herein to establish such easement to their mutual satisfaction. If this is not practical or possible, either party may bring a motion before this Court to establish the same.

I therefore rule that a decree be entered registering and confirming the title of the plaintiff to the locus shown on Land Court Plan No. 41931A excluding Parcel "2" as shown thereon and any claim of the flats and riparian rights thereto; 1) subject to the rights of the Commonwealth as stipulated; 2) subject to the rights of the defendants to use the opening in the seawall and so much of locus as is necessary to reach said opening by foot, together with so much of Point Street as the plaintiff has an ownership interest; 3) the stipulation between the plaintiff and Richard Geranian; 4) the right of way and parking easements as established by the Furlongs and Mr. Bell herein; and 5) such other matters as may appear in the abstract and are not in issue here.

Decree accordingly.