STEPHANIE CAPONE vs. ALFRED PISCITELLO and FRANCES E. PISCITELLO.

The defendant is the godfather of one of the plaintiff's siblings. Unfortunately and mysteriously, as far as the record is concerned, the relationship between the two families deteriorated in the intervening years, and this action for declaratory judgment by the plaintiff Stephanie Capone is the result. The plaintiff bases her application for relief upon a claim that she and her predecessors in title have used a twenty foot wide right of way commonly called Washington Square in such a way as to have acquired a prescriptive right to continue such use. The plaintiff also seeks a permanent injunction should she prevail in this controversy.

A trial was held in the Land Court on February 13, 1990 at which a stenographer was appointed to record and transcribe the testimony. Witnesses for the plaintiff were Steven Russo, a neighbor and family friend, Emiliano Capone, the plaintiff's uncle, the plaintiff and Antonina M. Capone, the plaintiff's mother. The only witness for the defendants (hereinafter generally the "defendant") was Mr. Piscitello. A total of twenty-six exhibits were admitted into evidence which are incorporated herein for the purpose of any appeal. There is attached to this decision as Appendix A a reduced copy of the layout of Washington Square which was accepted by the City of Gloucester on May 17, 1852, the north and south branches of which are public ways. The layout also shows within a dotted line the area here in question which on the 1852 plat appears to be a portion of Lot 8 thereon. The entire plan is Exhibit No. 14. Attached hereto as Appendix B is a reduced version of Exhibit No. 2, a plan entitled "Plan of Land in Gloucester, Mass." dated July 28, 1975 by Matt A. Hautala, a well-known North Shore surveyor. Exhibit No. 2 shows the area in dispute marked ("PRIVATE") containing 1,035 square feet as well as Lots 20 and 26, both of which are now owned by the defendant. Reference herein to the defendant is to Mr. Piscitello.

On all the evidence I find and rule as follows:

1. The plaintiff's grandparents, Giuseppe and Stephanina Capone, acquired title to what has been called 24 Washington Square from Helen MacGray by deed dated April 9, 1948 and recorded with Essex South District Registry Deeds (to which registry district all recordig references herein refer) in Book 3596, Page 53 (Exhibit No. 13). Stephanina Capone conveyed the premises to Anthony Capone by deed dated April 1, 1968 and recorded in Book 5159, Page 725 (Exhibit No. 12). Anthony Capone, who is the father of the plaintiff, subsequently conveyed the parcel to himself and his wife, Antonina Capone, by deed dated August 16, 1979 and recorded in Book 6622, Page 709 (Exhibit No. 11). None of the deeds in the plaintiff's chain of title refers to Wahington Square but rather bound by land of Lawson.

2. The plaintiff acquired title from her parents by deed dated August 27, 1987 and recorded in Book 9160, Page 65 (Exhibit No. 10). As in the other deeds in her chain there is no reference to Washington Square.

3. The defendant did not move into the neighborhood until after the plaintiff's grandparents acquired their home. He took title to the property known as 20 Washington Square from Vito Palazzola and Anna M. Palazzola by deed dated September 24, 1951 and recorded in Book 3847, Page 455. This deed bounds in part by Washington Square, the private way here in controversy (Exhibit No. 18). In 1972 Mr. and Mrs. Piscitello acquired a home on Summer Street from Cape Ann Bank & Trust Company, Executor of the Will of Alice M.P. Emerson, by deed dated December 15, 1972 and recorded in Book 5934, Page 483 (Exhibit No. 18B); this parcel bounds by the opposite side of the private way. The deed describes the line on Washington Square as 70 feet, but Appendix B shows a breakdown of this distance between the public and private part of Washington Square. These are the same predecessors in title as are referred to in the Capone chain of title as owning the private way. There is no evidence as to whether these parties appear in the chain of title to 20 Washington Square. The deeds prior to the acquisition by the defendant and his wife were not introduced into evidence.

4. After a consummation of the purchase from the estate of Alice M.P. Emerson, Mr. and Mrs. Piscitello revised the description of the 20 Washington Square premises by conveying the premises to a straw, Martin T. Pettit by deed dated October 22, 1975 and recored in Book 6190, Page 526 (Exhibit No. 18D). This deed runs northeasterly 43.50 feet along a wall on other land of Alfred Piscitello et ux to a point. Mr. Pettit immediately reconveyed 20 Washington Square to Mr. and Mrs. Piscitello as tenants by the entirety by deed dated October 22, 1975 and recorded in Book 6190, Page 527 (Exhibit No. 18C).

5. From 1948 to at least 1972 the members of the Capone family used the private way for access to their home. The mailbox was on the porch facing Washington Square, deliveries were made there, friends and service people used the way, it was the route by which ambulances gained access to the property and the Capones themselves always traversed the private way on foot to reach the public portion of Washington Square. The Riggs Street/Summer Street access, public ways on which the Capone parcel also abuts, leads to the back door of the house on the locus from which entry is into the kitchen. The front porch and front steps memorialized in a series of photographs introduced into evidence, and now remodeled, all face Washington Square. The Capones, Mrs. Emerson and the Piscitellos all used the private way for parking without objection from the fee owners of the way, whoever they may be, or any other persons.

6. In the early years there was a green fence that ran across the end of the right of way and in which there was a gate through which access was had to the plaintiff's home. There is a dispute as to whether the fence was erected by a predecessor in title of the defendant or by a son-in-law of the Capones, whose wedding is shown in one of the exhibits. I find and rule that it was the latter, but the matter is immaterial. Everybody accepted the fence with its gate in this time frame of the late forties, early fifties, and access freely was had through the gate. Eventually the fence fell down or alternatively it became so dilapidated that it was removed.

7. In the early 1970's Mrs. Capone elected to reconstruct the porch and at this time a decision was made to install a concrete patio on the property of the plaintiff and approximately adjacent to the front steps. This development apparently disturbed the defendant who proposed that a fence be erected in the vicinity of the old green fence, with the cost to be shared by the then owner of the plaintiff's property, the Anthony Capones and the defendant. However, there was a misunderstanding as to where the fence was to be erected. Clearly, the mother of the plaintiff and a then owner of the plaintiff's property, who had a language barrier, did not understand that the defendant proposed to have the fence constructed across the end of the right of way since she was planning to have the family's cars parked on the new concrete patio. She understood that the fence would run along the common boundary between the Capone/Piscitello properties. In any event the erection of the fence in 1982 led to this dispute which has escalated over the intervening years. Prior to this time the parties and Mrs. Emerson all parked in the right of way, and the plaintiff's predecessors did not drive from the public Washington Square through the private Washington Square to their land. Instead, they parked in the latter area.

8. In addition to the fence, to the gate in which this Court has insisted a key be furnished to the plaintiff, the defendant proceeded to erect within the right of way two carports which are graphically depicted in Exhibit No. 3 where two automobiles and a boat are shown, Exhibit No. 5 where three cars and the boat appear and Exhibits Nos. 6 and 7 where "the area is shown as completely blocked by two automobiles, the trailer for the boat which is placed catty-corner in such a way as to block pedestrian access and a lineup of buoys on the fence adjacent to the Summer Street property to make it even more difficult for a pedestrian to approach the gate. Despite the Court's attempts to provide access for the plaintiff pending the trial, the plaintiff has elected to collect her mail at the post office.

9. Exhibit No. 24 as well as Exhibits Nos. 8A, 8B and 24, show the access from Riggs Street to the rear yard of the plaintiff's home. Riggs Street has a steep grade at the top of which and on the grade is the plaintiff's land. The usual approach seems to be from Summer Street which is one way. The plaintiff is unable to provide parking on her land for a car because of the grade on her side lawn, and she is not satisfied only with access to the public way through the gate which appears on these exhibits. Since she was a youngster access has been in the opposite direction. The defendant contends that the use by the plaintiff and her predecessors in title has been permissive. However, the use pre-dated the defendant's acquisition of title to 20 Washington Square by three years and pre-dated his acquisition of the Summer Street lot by many years. There is nothing to indicate permission other than the defendant's statement that the plaintiff's grandfather acquiesced when the defendant "generously" allegedly told him he might use the way. The general rule is that a use for more than twenty years adversely to the fee owner and unexplained in origin supports the acquisition of a prescriptive right of way.

10. The parties introduced a series of exhibits showing the plaintiff's address as 24 Washington Square and the defendant other exhibits in which 25-27 Riggs Street was used. None of these exhibits is determinative of the issue before us which concerns the use made by the owners from time to time of the Capone property since its acquisition in 1948.

As set forth in G.L. c. 187, §2 and at common law it is possible to acquire a prescriptive easement upon the land of another by use of that land in the manner which is open, notorious, adverse to the owner and continuous for a period of at least twenty years. Boston Seamen's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 (1985). The use of a way for the prescriptive period of twenty years unexplained as to origin will be presumed to be adverse. Tucker v. Poch, 321 Mass. 321 , 324 (1947); True v. Field, 269 Mass. 524 , 528-529 (1930). The evidence is clear that the owners and occupants of the Capone house used the twenty foot way to proceed from their home to the public portion of Washington Square for a period in excess of that required by law. There is no evidence that the plaintiff or her predecessors abandoned the right which they had acquired or that the defendant had terminated such right, after it has been acquired, by his actions adversely thereto. Twenty years has not run, moreover.

The defendant's sole argument is that the use of the way was permissive in origin, not adverse, but I find and rule that this has not been established and indeed does not appear to be the case. The defendant apparently assumed that when he acquired title not only to 20 Washington Square but to 26 Washington Square his fee ownership of the entire right of way eliminated any easement rights therein, and he proceeded to use the private Washington Square in such a manner as to constitute an interference with the rights of parties such as the plaintiff and her family. They had established their rights to a prescriptive use of the private Washington Square before the defendant attempted to eliminate it. Accordingly the defendant could not act in bold disregard of any rights of his former friends.

General Laws c. 183, §58 is immaterial. It provides a method of determining ownership of the fee, but it does not relate to any existing rights in the way. Indeed it is unclear in whom such rights originally rested, and it would have been interesting to have traced the title back to layout of the public way in 1852 to see whether any recorded instruments in that era related to the small way which has attracted the Court's attention in this controversy.

The plaintiff seeks a declaration of her rights in the way. She has the right, as appurtenant to the premises at 24 Washington Square, to use the right of way to pass and repass, on foot to and from said premises and Washington Square (public) and to park along the right of way so long as the parking does not unreasonably interfere with the use by the owner of the fee or others entitled thereto. The prescriptive use as revealed by the evidence does not show that the plaintiff's predecessors drove to and from her home to the public Washington Square so I have not included direct access in vehicle to and from her home and Washington Square, among her rights. I suggest that the parties should consider whether that might not be a more palatable solution to this dispute than merely allowing the plaintiff to park along the right of way. It is clear from this discussion that the maintenance of the carports which the plaintiff has not asked to have removed interferes with the prescriptive easement. At this stage of the case the abutment supporting each carport roof may remain so long as the plaintiff may proceed on foot to and from her home and may also park her car as in years gone by. The defendant, however, may not block access to the Capone house by locking the gate and by completely occupying the entire area of the way with his boats, boat trailers, lobster buoys, automobiles and other paraphernalia and must have at least one-half of Washington Square (private) free from vehicles so the plaintiff's access will be unfettered. The parties must reach a reasonable accommodation in this regard. The plaintiff is entitled to a permanent injunction restraining the defendant from interfering with her rights as set forth in this decision.

Judgment accordingly.

exhibit 1

exhibit 2