MAURICE FEATHERMAN and SELMA S. FEATHERMAN vs. CATHERINE F. SMITH and NANCY K. MILLS.

The plaintiffs, Maurice Featherman and Selma S. Featherman, of Framingham, in the County of Middlesex, bring this bill of complaint pursuant to the provisions of G.L. c. 231A to have the Court determine that their title to the premises in said Framingham, conveyed to them by Frank Fournier by deed (Exhibit No. 2) dated July 12, 1948 and duly recorded with Middlesex South District Deeds, Book 7310, Page 354, is free of any rights in a cart path shown on a plan entitled "Plan of Land Belonging to H. J. Murray, Framingham, Mass." dated May, 1926 by Rosenblatt Brothers and recorded with said Deeds in Plan Book 378 at Page 20 (Exhibit No. 4). The complaint also seeks to have the defendants permanently enjoined from entering upon the cart path. In their answer, the defendants, Catherine F. Smith and her daughter, Nancy K. Mills, allege that they have a right to use the cart path both by grant and by implication.

A trial was held at the Land Court on January 6, 1989 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff Maurice Featherman and David Cheimets, a title examiner, testified for the plaintiffs, and the defendant Catherine F. Smith testified on her own behalf and that of her daughter. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

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

1. The cart path which the plaintiffs seek to eliminate, at least insofar as it crosses their land leading to Beacon Street, was first shown on the 1926 plan of a non-locus subdivision. As delineated thereon, the cart path led from the end of Haughton Street in a southeasterly direction to Beacon Street and crossed land shown thereon as Fournier.

2. Lot 24 on the subdivision plan is now owned by the defendants who also own certain parcels of land within a subdivision of the former Fournier land. These appear on a plan entitled "Plan Showing Land Belonging to Francis J. Smith, Cavanaugh Road, Framingham, Mass." dated June, 1951 by Samuel Dyer and recorded as Plan No. 112B of 1951 in Book 7768, Page 236 (Exhibit No. 3). On the 1951 plan there are two unnumbered lots marked "Smith", one of which abuts the land of the plaintiffs, and the other of which touches the northwesterly corner thereof.

3. There has been no showing that the Murray and Fournier lands as shown on the 1926 plan were ever held in common ownership, nor was there any proof as to the creation and use of the cart path by persons in the defendants' chain of title.

4. The deed from Frank Fournier to the plaintiffs (Exhibit No. 1) set forth no right of way to which the granted premises were subject, nor was any appurtenant right of way granted. There is, however, reference to a common driveway as shown on a plan entitled "Framingham, Mass., Plan of Fournier Lots" dated June 4, 1948 by Edward H. Powell and recorded as Plan No. 903 of 1948 in Book 7310, Page 354 (Exhibit No. 1). Parcel B on such plan is labelled "common driveway" and apparently refers to access by the southerly abutter, Francis P. Kelley, to his garage. No issue has been raised in this litigation as to the driveway, and Mr. Kelley is not a party.

5. Francis J. Smith, the husband and father of the defendants and former Assistant Building Inspector in Framingham, now deceased, acquired title to Lots 23 and 24 on the 1926 plan by a deed from Archie McGuire, et al, dated June 19, 1957 and recorded in Book 8971, Page 80 (Exhibit No. 6) in which there appears the following language after the metes and bounds description of Lot 24:

Together with rights of way in and over the proposed street shown on said plan connecting said Lot 24 with Hastings Street and with the right of way in and over land of Murray and land of Fournier shown on said plan as leading from said Haughton Street to Beacon Street so far as said rights of way are now in force and applicable.

Thereafter Mr. Smith acquired title to a portion of the Fournier tract by confirmatory deed dated July 8, 1952 and recorded in Book 7932 , Page 283 (Exhibit No. 5) in which there is no reference as to any right of way to which the premises may be subject.

6. The plaintiffs erected a fence to enclose their back yard shortly after the house was constructed in 1948 in order to allow their young daughter to play in the yard. The original fence was constructed of three foot high chicken wire attached to cedar posts which were spaced ten feet apart. The next year the fence was replaced by a white picket fence which ran from the northerly boundary of the plaintiffs' property to the southerly boundary thereof; the northerly and southerly points were fixed by a fence post in the land of the abutter to the north and the remains of a stone wall to the south. The white picket fence stayed in place for fifteen years at which time it was replaced by a Walpole Fence.

7. The plaintiffs constructed a garage and breezeway as an addition to their original home in 1951 or 1952. The application for a building permit (Exhibit No. 7) was dated May 7, 1952 and located the garage as four feet from the adjoining side lot line. The building permit for the construction was dated May 7, 1952 and the sketch attached to it showed the southwesterly corner of the garage to be four feet from the common property line with Kelley. The garage and breezeway appear to be parallel to Beacon Street and while there is no plan by an engineer locating the addition in relationship to the cart path, it seems clear that the garage necssarily encroaches thereon.

There has been no explanation as to the origin of the cart path shown on the 1926 plan in which the defendants claim rights, and they failed to bear their burden of showing that there was appurtenant to the land now owned by them the right to use said cart path for access to and egress from their premises and Beacon Street.

It is true that the triangular parcel of land owned by the defendants abutting the plaintiffs' land to the west and the larger parcel to the north of the triangular piece indeed are landlocked insofar as access to Beacon Street is concerned, but it may be that the owners can establish a right to proceed in a westerly direction. The plaintiffs had acquired title to their land prior to the creation of the subdivision shown on the June, 1951 plan and prior to the McGuire-Smith deed, and in the conveyance to the plaintiffs there were no rights reserved to use the cart path, called "right of way" on the 1951 plan.

However, even if the defendants had been able to show that their parcels of land had an appurtenant right to use the right of way, I find and rule that it has been lost by the plaintiffs' adverse use. It is well established that an adverse use by the owner of the servient estate inconsistent with the continuance of an easement will bar the owner of the dominant tenement from continuing his use even in the case of an easement by grant. See Willets v. Langhaar, 212 Mass. 573 , 575 (1912). The use, of course, by the owner of the servient tenement must be irreconcilable with the rights of his opposite party. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422-423 (1979). It is clear from the facts that I have found that the plaintiffs' use was irreconcilable with the continuance of any easement of the defendants. The maintenance of the fence across the entire width of a right of way is, in the words of the Appeals Court, "totally inconsistent with the right of passage and, if continued for the prescriptive period, wholly extinguishes the right." Yagjian v. O'Brien, 19 Mass. App. Ct. 733 , 737 (1985).

In addition to the fence in the present case, the construction and maintenance of a garage and breezeway for the statutory period of twenty years undoubtedly cut off any rights of the defendants therein. This use was open, notorious, adverse and under a claim of right; the defendants were bound to know of the actions of the plaintiffs, and they cannot now contend that their rights, if any, continue.

Judgment accordingly.