CHARLES LAUNSBY, SUSAN B. LAUNSBY, f/k/a SUSAN B. EDWARDS and RICHARD AHERN, [Note 1] vs. ANTHONY L. DeLORENZO, a/k/a ANTHONY J. DeLORENZO, [Note 2] EVELYN DeLORENZO, THOMAS MARLETTA, LINDA M. MARLETTA, THOMAS C. DOANE, ELIZABETH A. DOANE, BEVERLY SAVINGS BANK, LYNN FIVE CENTS SAVINGS, BAYBANK MIDDLESEX and BEVERLY CO-OPERATIVE BANK.

The plaintiffs, Charles Launsby and Susan B. Launsby, husband and wife of Beverly, in the County of Essex originally brought this action with Richard Ahern in the Superior Court for said County seeking to enjoin the defendants from using a portion of a way known as Carleton Avenue, adjacent to three lots on a recorded subdivision plan, hereinafter described, owned by the plaintiffs. The complaint alleges that the plaintiffs have acquired title to the fee in Carleton Avenue by adverse possession and have eliminated the rights of the defendants therein. The original defendants included the owners of the lots on the opposite side of Carleton Avenue from the plaintiffs as well as the principal partes in interest, Anthony L. DeLorenzo and his wife Evelyn DeLorenzo. The other named defendants were successors in title to Mr. and Mrs. DeLorenzo or their mortgagees. They have all either been defaulted or the action dismissed as to them. The owners of other lots in the area shown on the subdivision plan were not named as parties and accordingly are not foreclosed by this litigation from asserting their own right to use the streets on the recorded plan. The case was transferred to the Land Court on the defendants' motion to which the plaintiffs assented.

A trial was held on February 2 and April 19, 1990 on each day of which a stenographer was appointed to record and transcribe the testimony. The witnesses at the trial were Michael E. Grimes, a Beverly police officer who had worked on the plaintiffs' property, Louis Balboni, a contractor, Patricia LaForme, formerly Patricia Launsby and a predecessor in title, Susan Launsby, one of the plaintiffs, Harold Doane, a former owner of lots abutting on the opposite side of Carleton Avenue, and Thomas C. Doane, one of the present owners, testified for the plaintiff. The witnesses for the defendant were Professor Robert H. Arnold, an expert in cartography and the defendant, Evelyn DeLorenzo. Charles Launsby, the plaintiff and Anthony DeLorenzo, a defendant, both were called by each party. At the close of the trial a motion was made for a view which is denied as being unnecessary.

On all the evidence including stipulations of the parties I find and rule as follows:

1. Both the plaintiffs and the defendants are the owners of lots on the subdivision plan entitled "Subdivision of Land Belonging to P. S. Davis, Rial Side, Beverly, Mass." by F. W. Hammond (the "Plan"), recorded with the Essex South District Registry of Deeds (to which all recording references herein refer) in Plan Book 16, Plan 29.

2. The plaintiffs are the owners of Lots 36, 37 and 38 as shown on said Plan, the most recent deed to them being a conveyance from Charles R. Launsby, Jr. et al to himself and Susan B. Launsby, husband and wife as tenants by the entirety, dated January 24, 1989 and recorded in Book 9871, Page 444 (Exhibit No. 8). The legal description set forth in this deed and in the Launsby chain of title bounds all three lots, i.e., Lots 36, 37 and 38 by Carleton Avenue.

3. The defendants Anthony and Evelyn DeLorenzo together own Lots 39, 41, 42, 43, 44, 49, 53, 54, 55, 56 and 57 on the Plan except so much thereof as was conveyed by them to their daughter and son-in-law, Thomas and Linda M. Marletta, by deed dated June 25, 1974 and recorded in Book 6078, Page 6 (Exhibit No. 6) and to their son Joseph by deed dated January 29, 1981 and recorded in Book 6788, Page 177 (Exhibit No. 21). The granted premises conveyed by the latter two deeds are so situated that access to Carleton Avenue is immaterial.

4. Evelyn DeLorenzo also owns Lot 40 on the Plan which was conveyed to her by Paul E. St. Linger et al by deed dated May 7, 1984 and recorded in Book 7411, Page 351 (Exhibit No. 7). This parcel, as well as Lot 39 on the Plan owned by Mr. and Mrs. DeLorenzo, would be landlocked without a right to use Carleton Avenue.

5. In the conveyance from Beverly National Bank, Trustee of Parker S. Davis, the apparent developer of the subdivision, dated April 3, 1961 and recorded in Book 4762, Page 474 (Exhibit No. 5) the interest of the developer in Sylvester Avenue, Sylvester Avenue Extension, Roderick Aveue, Carleton Avenue and Doane Avenue, as shown on the Plan and other plans of the area was included subject to existing easements and conveyances of record.

6. The deed from the Beverly National Bank, as Trustee, bounded Lot 39, a portion of the granted premises, by Carleton Avenue. The remaining lots conveyed by said deed were described by a running description which in the relevant portions thereof crossed Carleton Avenue and accordingly did not bound by Carleton Avenue specifically, the fee thereof adjacent to the constituent lots being expressly included. The deed from Paul E. St. Linger et al (Exhibit No.7) conveying Lot 40 to Mrs. DeLorenzo bounds by Carleton Avenue.

7. Thomas C. Doane and Elizabeth A. Doane, present owners of Lots 46, 47, 48, 49 on the Plan and the two 5,000 square foot lots marked "Alice P. Carleton" thereon acquired title by a deed from Harold P. Doane, Jr. et al, dated December 27, 1984 and recorded in Book 7619, Page 257 (Exhibit No. 4). The deed describes the property as bounded by Carleton Avenue. Since two lots comprising 10,000 square feet of the Doane property are unnumbered on the Plan, it is not clear whether there is appurtenant to such los a record right to use Carleton Avenue, but that is not presently in dispute in this litigation. Record title introduced into evidence did not establish the chain of title sufficiently far back in time for the court to make any determination on whether these lots were part of the original subdivision or not.

8. The holdings of the defendants are shown as Lot lA on Exhibit No. 2, a plan entitled "Subdivision Plan of Land Property of Anthony J. and Evelyn S. DeLorenzo, Located at 14 Doane Avenue, Beverly, Massachusetts", dated January 1981. The premises shown thereon as Paul E. and Cecile T. St. Linger have since been conveyed to Mrs. DeLorenzo, and Mr. and Mrs. DeLorenzo own one additional lot situated northerly of the former St. Linger parcel, which is Lot 39. The home in which the defendants live is situated on Lot lA, and access to it is customarily over Doane Avenue. Portions of Lot 1A are comprised of Carleton Avenue and Roderick Avenue, and nothing decided herein determines the rights of others to use the fee of the paper streets. [Note 3]

9. The Launsby property was previously owned by one Richard H. Young. He customarily parked on Bridge Street in front of his home, and the issue of rights in Carleton Avenue never became acute.

10. In 1966 Charles R. Launsby (the first husband of Patricia LaForme, a witness at the trial and mother of the plaintiff Charles Launsby) and Patricia A. Launsby, now Patricia LaForme, acquired title to Lots 36, 37 and 38 by deed from Richard H. Young, dated September 2, 1966 and recorded in Book 5390, Page 505 (see Exhibit No. 14). After the Launsbys acquired title to their locus, they began to improve the house which was apparently in a dilapidated condition. For access to the home which is situated on the back two lots now owned by the plaintiffs and adjacent to the line of Carleton Avenue (Exhibit No. 17), Carleton Avenue had to be improved. There is a steep grade down from Bridge Street, a public way on which the premises front, and Carleton Avenue dropped precipitously 10 to 12 feet from its intersection with the public way. Bridge Street was approximately 15 to 18 feet higher than the property. At the time of the conveyance there was a driveway running approximately 50 to 60 feet from Bridge Street to the house, and beyond the house so-called Carleton Avenue, as shown on the Plan, dropped another 3 to 4 feet. There were remains so­called of a stone wall from the corner of the house running across Carleton Avenue, perhaps a remnant of a time when other ownerships may have impacted on the subdivision.

11. Friends of Mr. Charles R. Launsby, Sr. helped him fill in Carleton Avenue to make the grade more consistent with that of Bridge Street and to remove some of the obstacles in the way. In connection with the removal of the wall with a backhoe, an old fence of the snow variety, was found amongst the brush and pulled out by the contractor-friend. The surface of the driveway leading into the Launsby home within Carleton Avenue eventually was paved to some extent. However, Carleton Avenue has never been constructed on the ground to its full length or width as shown on the Plan. Nonetheless there are no obstacles to prevent such work being done.

12. The Launsbys customarily parked their cars side by side on Carleton Avenue, although occasionally one car was situated behind the other. Sometime during the 1970's, presumably when the oil crisis of that era dictated fuel conservation, a woodpile was begun within the limits of the way. The woodpile remains today, and the current generation continues to park in the same method within Carleton Avenue.

13. For many years, Carleton Avenue beyond the Launsby lot was blocked by brush, trees and other natural growth. Conversely there never was any artificial barricade erected and maintained for twenty years by any of the parties to this suit which blocked passage over it. The strongest deterrent to its use originally was the natural grade and now the overgrowth of bushes, shrubs and trees therein makes travel difficult although the defendants recently have caused some of this to be removed. While cars have parked during certain hours of the day within the way, they are easily moved; the woodpile did not entirely block the way nor was it of a permanent nature.

14. The Doanes operate an ice cream stand on Bridge Street and carried on a milk business at the Bridge Street location. Large trucks making deliveries to the property would access the rear in the garage thereon through Carleton Avenue. Over the years the defendants, their children and grandchildren have walked from the DeLorenzo home on Lot lA down Carleton Avenue to the ice cream stand to partake of this all-American treat.

15. An aerial photograph was admitted as Exhibit No. 23, together with an affidavit of Robert Foss, the keeper of the records for the James W. Sewall Company which took the photograph (Exhibit No. 22) showing Carleton Avenue and the surrounding properties. The photograph was taken in 1978 and appears not to show the paved area depicted in Exhibit No. 10 and indicated on Exhibit No. 17 and Chalk A. This aerial is the earliest photographic depiction of the area, but was taken at such a height that specific ground features relied on by the plaintiff in its case in chief are not conclusively shown.

16. This law suit was precipitated by a letter dated October 15, 1987 (Exhibit No. 9) from counsel for the defendants to Mr. Charles Launsby contending that access to the defendants' land over Carleton Avenue was blocked by motor vehicles and a woodpile and contending that it was the obligation of the addressee, if responsible for the obstructions, to take appropriate action to remove them.

The plaintiffs' seek to prove that by adverse possession they have acquired title to the fee in Carleton Avenue, at least to the center line thereof, free of the right of the defendants to use the way. The plaintiffs have failed to establish that the defendants did not originally acquired the right to use Carleton Avenue by the various conveyances to them nor that one having acquired such rights, the defendants have lost them either by abandonment or by adverse possession by the plaintiff.

There can be little question that of record there is appurtenant to the land of the defendants consisting of the certain lots which abut on Carleton Avenue, i.e., Lots 39, 40, 41, 42, 43, 44, 45, 49 and 58, and 53 to 57 inclusive, the right to use Carleton Avenue for all purposes for which streets or ways customarily are used in said Beverly. See G.L. c. 187, §5 and Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 (1980). It cannot now be doubted that where an instrument conveying title to land describes a parcel as abutting on a way there is conveyed the fee to the center line of the way and the right to use the way for its entire length if the grantor was able to confer such rights. See Emery v. Crowley, 371 Mass. 489 (1976); Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 677-678 (1964). Thus certain of the plaintiffs' lots have the benefit of what has become a rule of property within the Commonwealth. Certain of the other lots which were conveyed as a part of a large parcel within which portions of Carleton Avenue were encompassed nonetheless have the right to use the way by virtue of an implied grant since they are shown on a subdivision plan creating both the lots and the ways. See Rahilly v. Addison, 350 Mass. 660 , 662 (1966) in which Justice Reardon writing for the Court stated "where land is conveyed with reference to a plan, an easement other than an easement of necessity is created only if clearly so intended by the parties to the deed" and cases cited. See also Scagel v. Jones, 355 Mass. 208 (1969); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965). I find and rule that this indeed was the intention of the developer and his successors in title. The plaintiffs do not dispute these well­established rules. However, they contend that the defendants have lost any right they may have had to use Carleton Avenue by the adverse possession thereof stemming from over twenty years of use by the plaintiffs and their predecessors inconsistent with the rights of the defendants and further allege that the defendants have abandoned any rights which they might have had in Carleton Avenue.

ABANDONMENT OF RIGHT TO USE WAY

An appurtenant right to use a way cannot be extinguished other than by express grant, release, estoppal, abandonment or by prescription or adverse possession. Delconte v. Salloum, 336 Mass. 184 , 188 (1957). The only evidence of abandonment by the defendants is their practice of using Doane Avenue which is in large part a public way for access to their home. In order, however, for a practice to constitute abandonment in the legal sense, there must be an intent to abandon; acts must be shown indicating an intention never again to make use of the easement. Nonuser, even though continued for many years and coupled with a failure to clear the right of way of its natural cover of tree and brush has been held insufficient evidence of such an intention. See Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958). In the case last cited "the existence of a dump located on the way was not shown to interfere with the use of the way or to have such an appearance of permanence as to create doubt regarding a continued existence of the easement." Sindler v. William M. Bailey Co., 348 Mass. 589 , 593 (1965). The Desotell case is controlling here on the issue of abandonment since the facts now before me parallel very closely those of Desotell. Compare Sindler, supra at 592-593. There is nothing to show any estoppel on the part of the defendants, because there is nothing that the plaintiffs or their predecessors have done within the limits of Carleton Avenue of such a permanent nature as to make it inequitable not to bar its use by the defendants. The activities which the plaintiffs have carried on in the way generally are not foreign to its use for such purpose, for even where a way has been actively used, parking may be permissible, and while the method devised by the plaintiffs of parking side by side on many occasions is inconsistent with the use to which the defendants are entitled, it is not of such a permanent nature as to cut off the defendants' rights. In fact the cars were removed when the parties went to work or otherwise needed vehicular transportation, so obviously the parking was not permanent. The miscellaneous other activities carried on in the way other than the woodpile were not such as to compel affirmative action by the defendants to avoid any claim of abandonment. The woodpile also falls into the category of an obstruction easily removed.

I find and rule on all the evidence that the defendants did not intend to abandon, nor have they abandoned, their rights in Carleton Avenue. The burden was on the plaintiffs to establish such abandnment, and they have not borne it. Lemieux v. Rex Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979).

EXTINGUISHMENT BY ADVERSE USE

It has been held that "[w]ithout a finding of an intent to abandon a recorded easement so as to work an extinguishment 'there must be an element of adverse use by the owner of the servient estate ineonsistent with the continuance of the easement. . . .' (citation omitted)." Id. 421-422. As a general rule, "[a]cts of the servient tenant incompatible with the existence of an easement, extending over the twenty year period required for prescription, will extinguish an easement." Desotell, supra, 373 Mass. at 159. The question is whether acts by the plaintiffs were sufficiently adverse to the defendants' interest.

Certain acts which would permit acquisition of an easement by prescription may not serve to extinguish an interest, especially if such use is consistent with a use that would not overburden the easement, even if it was adverse to the easement holder. See Lemieux. supra, 7 Mass. App. Ct. at 422-423. Moreover, as held in Lemieux,

'An easement is acquired by prescription through the use of land in possession of another. An easement is extinguished by prescription through a use made by the possessor of a servient tenement of land in his own possession.' Restatement of Property §506, Comment b (1944). . . . The principle, admittedly abstract, has been stated in this fashion: the 'occupation of land by the servient tenant not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore does not extinguish such rights.' New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 158 (1931). Patterson v. Simonds, 324 Mass. 344 , #52 (1949). Accordingly, to establish adverse use in this case the defendant was required to establish that it, or its predecessors, had 'used the way in a manner so inconsistent with the [plaintiffs'] easement that it . . . [worked] an extinguishment of it after the lapse of twenty years.' Id. at 352.

The Appeals Court held in Lemieux that the uses made by the servient owners were insufficient to find an extinguishment of the plaintiff's rights in the way. Among such activities were the erection of two gates at each end of the alleyway which were open during the day and closed overnight, storage of various by-products and scraps in the way and two structures encroaching into the space above the way. It has also been held that the mere presence of trees and brush in the right of way "cannot constitute an adverse use by the servient tenant, in the absence of a showing that the servient tenant planted the trees and brush on the right of way." Desotell, supra, 338 Mass. at 159 where, in addition to the natural growth, a dump was located in the right of way. The activities in Desotell were held by the Supreme Judicial Court not to be sufficiently permanent to cut off a continuance of rights within the way. In Shapiro v. Burton, 23 Mass. App. Ct. 327 (1987) the Appeals Court did find that the maintenance of hedges and other plantings by the plaintiffs which encroached into the right of way together with the erection of a fence and planting of shrubs across the way extinguished the rights of others, but that is not our case.

The only activity by the plaintiffs inconsistent with the defendants' continued right to use the way and which lasted approximately twenty years before the defendants protested was parking cars side by side. This was such an impermanent arrangement with the cars constantly being moved, with variations in the mode of parking from time to time and with days with none, that it cannot rise to the type of activity which cuts off the defendants' rights. After all the plaintiffs can park on their own land, but the defendants would be without access to some of their lots if the plaintiffs' argument prevailed.

I therefore find and rule that the defendants' rights to use Carleton Avenue have not been lost through prescription or adverse possession and that they continue. Until the defendants wish to use Carleton Avenue, however, the plaintiffs may leave, but not add to the present woodpile within the way. On written demand by the defendants the woodpile shall be removed within thirty days. The pattern of the parking by the plaintiffs within the way is to be revised with the cars to be aligned one behind the other along the sideline of Carleton Avenue adjacent to the lots owned by the plaintiffs or on the lots.

Judgment accordingly.