FRANCIS C. WELCH and F. MURRAY FORBES, Trustees under the Will of Charles A. Welch vs. THEODORE ROOSEVELT, IV and SHERMAN HOAR.

By petition filed with this Court on February 14, 1977, Francis C. Welch and F. Murray Forbes, Trustees under the Wi1l of Charles A. Welch ("Plaintiffs"), seek to register and confirm title to certain real estate ("L ocus") located on Chappaquiddick Island ("Chappaquiddick") in the Town of Edgartown, Massachusetts. The Locus, which is improved at its northernmost end by a small boathouse, appears as a strip of land of approximately 75 feet in width along its entire length, extending in a northeasterly direction from Chappaquiddick Road to Cape Poge Bay for approximately 1,600 feet, on a plan entitled "Plan of Land in Edgartown, Mass." dated February 20, 1974, filed with the Court as Sheet 2 of Land Court Plan No. 39250A [Note l] ("Land Court Plan") (Exhibit No. 14). On September 14, 1977, the Defendant, Sherman Hoar ("Hoar"), [Note 2] filed an objection to the petition, alleging therein that he has acquired prescriptive rights in and over that portion of the Locus shown as and entitled "Right of Way (private 8± ft. wide)" ("Way") on the Land Court Plan.

The matter was tried in the Land Court on September 9, 1988; a stenographer was appointed to record and transcribe the testimony. The parties filed a Stipulation (Exhibit No. lA-J) of facts and exhibits, certain of which facts are included in the findings set forth below. At trial, nine witnesses testified, thirteen exhibits were introduced into evidence and two chalks were presented to assist the Court. Subsequent to trial, the parties filed their written assents to the introduction into evidence of Land Court Plan No. 39250A, which was marked as Exhibit No. 14. All exhibits and chalks are incorporated herein for the purpose of any appeal.

On all of the evidence, I find the following facts:

1. The Land Court Abstract ("Abstract"), which the parties accept "in all respects as to record title to Locus" in their Stipulation, was prepared by Land Court Examiner, Henry H. Thayer ("Thayer"), who concluded as follows:

. . . in my opinion the petitioners have a good title as alleged, and proper for registration.

2. Thayer commenced his examination of the Plaintiffs' title with a deed dated January 19, 1918, recorded at Book 146, Page 357 in the Dukes County Registry of Deeds [Note 3] (Exhibit No. 1-C), from Benjamin W. Pease and Annie B. Pease, Hoar's grandparents, and Roger Sherman Hoar and Elva Stuart Hoar, Hoar's parents, to Henry S. Blair, whereby the land on which the Way is located ("Locus") was conveyed. The parcel is described in said deed as follows:

A portion of the Abram Brown estate on . . . Chappaquiddick, with the buildings thereon, bounded northerly by Cape Poge Pond, easterly by the line of division between Indian lots 5 and 7, southerly by the Indian Line, and westerly by land of William Belain and land of Moses Jeffers.

3. Upon acquiring title to the land on which the Way is located, Henry S. Blair leased pasturage rights in the property to Benjamin W. Pease and Elva Stuart Hoar (See Exhibit No. 12). Accordingly, the Peases and Hoars pastured the property from 1918 to approximately 1939, when the lease terminated.

4. Thereafter, by deed dated October 15, 1947, recorded at Book 213, Page 372 (Exhibit No. 1-D), Henry S. Blair conveyed the Locus (See Finding No. 2) to Perrin H. Long and Elizabeth G. Long, as tenants by the entirety.

5. Following the death of Perrin H. Long on December 17, 1965 (See Exhibit No. 1-E), his widow, Elizabeth G. Long, conveyed the Locus (See Findings No. 2 and 3) to Perrin H. Long, Jr. (Exhibit No. 1-F). This conveyance transpired on April l, 1968.

6. Approximately three years later, Perrin H. Long, Jr. conveyed the Locus to the Plaintiffs, by deed dated November 11, 1971, recorded at Book 294, Page 124 (Exhibit No. 1-G). The conveyance is more specifically described as follows:

. . . all of [Long, Jr.'s] right, title and interest, if any, in and to a certain parcel of land with the boat house thereon situated on Cape Poge Bay on the Island of Chappaquiddick . . . shown as parcels 1 and D (emphasis added) on a plan entitled "Plan of Land in Edgartown, Mass. . . ." dated October 15, 1971 [Exhibit No. 1-H] ["1971 Plan"] [as well as] the right to use the beach on said parcel (emphasis added) . . . for bathing, boating and fishing, but such right shall not include any rights to erect structures or store boats or any other type of equipment on said beach, and . . . the right to use the way shown on [the 1971 Plan] as "used way -- to Chappaquiddick Road" for access to said parcel 1, Cape Poge Bay, and said beach (emphasis supplied) . . .

7. On November 29, 1971, the Plaintiffs conveyed "all of their right, title and interest, if any, in and to a certain parcel of land with the buildings thereon situated on Cape Poge Bay on . . . Chappaquiddick . . . , shown as pa rcel 2 on [the 1971 Plan ]", to Perrin H. Long, Jr. (Exhibit No. 1-I). This conveyance included the right to use the Plaintiffs' beach and the aforementioned "used way".

8. As shown on the Land Court Plan, a small boathouse and beach lie at the northernmost end of the Locus and are accessible via the Way to which the Defendants assert prescriptive rights. The boathouse, which measures approximately 20 feet by 35 feet, was constructed by the Welch family in 1935 (See Exhibit No. 9) and has since been used by the Welches, and others with their permission, for boat storage.

9. Between the years of approximately 1935 to 1970, the Welch family, their guests and persons to whom they rented cottages, used the beach and boathouse area for swimming, fishing, hunting, horseback riding, sailing and picnicking. These activities occurred on a near-daily basis during weekends, summer months and school vacation periods. In addition, the Welch family spent holidays on Chappaquiddick, at which times they would take walks along the beach and hunt in the area surrounding the boathouse.

10. The Welch family, their guests and their summer tenants accessed the beach and boathouse area by either walking or driving along the Way. When they went by vehicle, they would utilize the area to the east of the boathouse for parking. In the course of such trips, either on foot or by motor vehicle, they would not observe Hoar at the beach or boathouse area, nor on the Way leading thereto. One member of the Welch family, Jeffrey Storer, did, however, recollect seeing Hoar driving along the Way leading towards the beach in the fall of 1970. At this time though, Hoar veered off of the Way to the right in the direction of Tom's Neck Farm, which property lies to the east of the Locus.

11. After moving to Chappaquiddick permanently in 1970, the Welch family used the beach, boathouse and Way leading thereto on a regular basis. Neither the boathouse nor the Way, however, is visible from their house, which is located to the southeast of the boathouse.

12. In 1970, the Welch family constructed a barway, with a "No Trespassing" sign affixed to it, across the Way (See Exhibit No. 8). As shown on the Land Court Plan, the barway is located at the Chappaquiddick Road end of the Locus, where the Way first intersects with the Locus.

13. Hoar's use of the Way commenced in about 1919, when, as a small boy, he would drive his grandfather's cattle along it to the barn at Tom's Neck Farm. Thereafter, in 1920, his family moved to Milwaukee, Wisconsin. Consequently, during the period from about 1921 to 1934, he and his family spent only summers and holidays at Tom's Neck Farm, at which times Hoar would use the Way on a daily basis while performing his chores and to reach the pond on the then-Blair property where he would hunt ducks.

14. In 1934, Hoar entered Phillips Academy in Exeter, New Hampshire. From this point until about 1937, he spent summers, school vacations and holidays on Chappaquiddick. There, he would use the Way to reach the beach area from Tom's Neck Farm. Thereafter, from 1937 through 1940, Hoar attended Harvard University, again spending summers, holidays and school vacations, with the exception of the year 1938, at Chappaquiddick. He would use the Way leading to the beach and hunt ducks, quahog, crab and scallop in the area.

15. Upon his graduation from Harvard in 1940, Hoar was stationed at Quonset Naval Air Station. Accordingly, from 1941 to 1942 his trips to Chappaquiddick, and use of the Way, consisted of only occasional visits for purposes of duck hunting. Thereafter, in 1943, Hoar was placed on active military duty overseas, where he remained until about 1946.

16. Between the years of approximately 1946 to 1949, Hoar taught at the Middlesex School in Concord, Massachusetts and then the University of Massachusetts in Amherst, Massachusetts. For the duration of such employment, Hoar spent school vacations, summers and holidays on Chappaquiddick, using the Way on an average of one time per week.

17. In 1950, Hoar accepted a position with the CIA in Washington, D.C., making visits to Chappaquiddick difficult and infrequent. Subsequently, from 1953 to 1956, Hoar was posted in Hong Kong; his visits to Chappaquiddick ceased altogether. He was next stationed in Africa, then Peru, thus preventing further visits to Chappaquiddick until his return to the United States in about 1962. In the years following his return, Hoar spent most of his time in either Washington or New York, spending only vacations at Tom's Neck Farm.

18. In 1967, Hoar's mother passed away, devising life estates in Tom's Neck Farm to Hoar, his brother and sister. In 1968, Hoar moved to Chappaquiddick permanently. At that time, he began renting Tom's Neck Farm to tenants for some ten weeks each summer. Consequently, he limited his access to Cape Poge Bay to the Way. Such use occurred only once every week or two during the summer. At such time, he would go out of his way to avoid other persons on, or in the area of, the Way, beach or boathouse.

In actions to register and confirm title to real estate, the petitioners bear the burden of proving that they hold a title proper for registration. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). They must prevail, if at all, on the strength of their own title and not on the weakness or nonexistence of the respondents' title. Butrick v. Tilton, 141 Mass. 93 , 96 (1886); Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987). However, as the Defendants herein assert prescriptive rights to use the Way which crosses over the Locus presented for registration and confirmation, and not title thereto, they must prove each and every element necessary to establish prescriptive rights therein. Mendonca v. Cities Services Oil Company of Pennsylvania, 354 Mass. 323 , 326 (1968); Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Gadreault v. Hillman, 317 Mass. 657 , 661 (1945).

The law in Massachusetts is clear that an easement/right of way by prescription may only be acquired by proof of open, notorious, continuous and adverse use of the subject property for a period of twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331 (1980); Glenn v. Poole, 12 Mass. App. Ct. 292 , 295 (1981); Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985). The purpose of these various requirements is to put the true. owner of the subject property on notice of the hostile activity of the possession, so that the owner may have an opportunity to take steps to vindicate his rights by legal action. Boston Seaman's Friend Society at 251 citing Ottavia v. Savarese, 338 Mass. 330 , 333 (1959), Inasmuch as the evidence offered by the Defendants falls short of establishing a prescriptive easement in and over that portion of the Locus designated "Right of Way (private 8± ft. wide)" on the Land Court Plan, I find and rule that the Plaintiffs hold record title to the Locus, free of any rights in either of the Defendants to pass and repass over the Way, and accordingly, that the Plaintiffs' title is sufficient for registration and confirmation, subject to such matters as may appear in the Abstract and are not material hereto.

Case law defines a use as "adverse" if the manner and circumstances of such use illustrate a lack of recognition on the part of the claimant of the easement that his use is being conducted subject to authority in another to prevent it. Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1979). Hoar testified that his adverse use of the Way commenced as early as 1919 and continued through at least 1968. Despite the fact that Hoar's testimony reveals use of the Way for a period well in excess of twenty years, the duration of such use required under the doctrine of prescriptive easements must be twenty years of continued, uninterrupted use. G.L. c. 187, §2. Findings No. 13 through 18, above, delimit the approximate duration of Hoar's prescriptive use of the Way. While testimony presented by Hoar points to 1919 as the year in which such use began, other evidence before the Court reveals to the contrary. By letter dated September 5, 1947 (Exhibit No. 12), Hoar's father, Roger Sherman Hoar, stated that the Hoars' use of the area encompassing the Way during 1918 through 1939 was carried out pursuant to a lease agreement, whereby Henry S. Blair leased pasturage rights in the property to the Hoar and Pease families. Accordingly, Hoar's assertion of prescriptive rights in the Way based on a time frame including the years 1918 through 1939 is misplaced. The Hoar family's use of the Way pursuant to the terms of the lease agreement amounts to "permissive use", which is clearly inconsistent with the element of "adverse use" required for a prescriptive easement. Ottavia at 333; Ryan at 263; Restatement of Property, §458; American Law of Property, §§8.53-8.54. I thus find that the starting point for the accrual of Hoar's prescriptive rights, if any, in the Way commenced upon the termination of the aforesaid lease agreement in 1939.

The record before the Court reveals that in 1939 Hoar was in his junior year at Harvard University. From 1939 until his graduation in 1940, Hoar visited Tom's Neck Farm during summers, holidays and school vacations. At these times, he used the Way to access the beach area for hunting and fishing. Such visits persisted, although with less frequency, through 1942. Accordingly, even though such "seasonal use" of the Way will not, in and of itself, preclude a finding that the use was continuous, Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961) ; Mahoney v. Heebner, 343 Mass. 770 (1961) ; Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 592 (1985), the period of Hoar's seasonal use is grossly insufficient to establish a prescriptive easement in and over the Way. Nor does Hoar fare better in establishing an uninterrupted and continuous period of adverse use of the Way on the remaining evidence. Interruptions in the accrual of the requisite twenty year period are prevalent between the years 1943 through approximately 1967. Specifically, the foregoing facts illustrate that Hoar was stationed on active military duty overseas, and hence able to visit Chappaquiddick on rare occasions, if at all, from 1943 to about 1946. Despite resuming his summer, holiday and vacation-time visits to Chappaquiddick from 1946 to 1949, Hoar's position with the CIA effectively foreclosed him from making such trips between the years 1950 and 1962. Again, Hoar's period of continued and uninterrupted seasonal use of the Way between 1946 and 1949 falls far short of the requisite twenty years for an accrual of prescriptive rights in the Way.

Hoar's later use of the Way during 1962 through 1968 is equally deficient in establishing prescriptive rights therein. Moreover, by Hoar's own admission, his use of the Way from 1968 forward was not only sparse and spasmodic, but also greatly inconsistent with the concept of "open and notorious use". For a use of property belonging to another to be "open", it must be carried out without any attempt at concealment. Foot v. Bauman, 333 Mass. 214 , 218 (1955) citing American Law of Property, §8.56. To be "notorious", such use must be known to those who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. Id. Hoar's testimony reveals that he would intentionally bypass use of the beach and boathouse area, and the Way leading thereto, whenever he observed other persons in such areas. Such an admission militates a finding that Hoar's alleged use of the Way, beach and boathouse area went unobserved, and hence was not readily discoverable by the Plaintiffs and their predecessors, all of whom, as revealed at trial, maintained a reasonable degree of supervision over the Locus and who testified to never having seen Hoar on or along these areas. Moreover, even assuming that Hoar's use of the Way was sufficiently open, notorious and adverse from 1962 forward, the Welches' construction of a barway across the Way in 1970 decisively terminated any accrual of such prescriptive rights in the Defendants. See Gadreault at 662 ; Yagjian v. O'Brien, 19 Mass. App. Ct. 733 , 735-737 (1985).

I thus conclude from the foregoing that the evidence proffered by the Defendants does not, as a matter of law, form the basis to a finding that they have acquired prescriptive rights in and over the Way, and rule in summary that the Plaintiffs hold record title to the Locus, free of any prescriptive rights in the same in the Defendants, and that their title is thus sufficient for registration and confirmation, subject only to such matters as may appear in the Abstract, but which are not material hereto.

Judgment accordingly.