MISC 123840

November 12, 1991

Norfolk, ss.




In Case 123840 Plaintiffs Jack D. and Vernita W. Bryant (the "Bryants") claim by prescription an easement to reach Sandy Cove Beach (the "Beach") in Cohasset by a passageway (the "Passageway") which leads over the lands of the respective Defendants. In Case 123926 Plaintiffs Lawrence C. and Lynn Eisenhauer (the "Eisenhauers") also claim such an easement. Because the facts supporting each claim are the same, the cases were consolidated for trial.

A trial was held on April 22, April 23, and May 20, 1991. A stenographer was appointed to record and transcribe the testimony. Twenty-five Exhibits (some with multiple parts) were introduced into evidence and all are incorporated in this Decision for purposes of any appeal, as is a Chalk of a Topographic Map of the Town. Four potential exhibits (various photographs) were given numbers, 23 through 26, but later withdrawn by consent.

Thirteen witnesses testified for the collective Plaintiffs, including all four of them. Thirteen witnesses testified for the Defendants, including both of them. The non­party witnesses were former owners or occupants of the properties involved, except for two Defendants' witnesses, Henry F. Davis III, a landscape consultant, and Lucille McLoughlin, a neighbor.

I viewed the properties on May 20, 1991.

I find and rule for Defendants in both actions, as follows:

1. The Bryants own and reside at the property at 25 Hobart Lane, Cohasset (the "Bryant Property"), which property is shown as Lot Bl on a plan (Exhibit 3) entitled "Plan of Lots Hobart Lane, Cohasset, Mass., Survey for John E. Woods" dated June 16, 1960 by Lewis W. Perkins & Son, which Plan is recorded in Book 4259, Page 333 of the Norfolk County Registry of Deeds (all recording references in this Decision are to that Registry) as Plan 525 of 1965.

2. The Eisenhauers own and reside at the property at 19 Hobart Lane (the "Eisenhauer Property"), which property is shown as Lot B2 on the same plan.

3. The Defendant, Dorothy Coleman Wallace, owns a portion of Lot C on a plan (Exhibit 1) entitled "Plan of land near Sandy Cove, Cohassett, belonging to the Est. of John J. Lothrop" dated January, 1884 copied March 28, 1890 by W. H. Whitney, which plan is recorded in Plan Book 14 as Plan 622 (the "Lothrop Plan"). Her portion of Lot C (the "Wallace Property") is more particularly described in a deed from Faith G. Bemis to her dated November 28, 1945 recorded in Book 2575, Page 32. Mrs. Wallace rented the Wallace Property for two years prior to her purchase of it in 1945 and has spent every summer there since 1943 except for 1960 and 1961, when she rented to the sister of the Defendant Higginson.

4. The Defendant, Charles Higginson, owns two parcels of land (the "Higginson Property") in Cohasset, described in a deed from Helen M. Clifford to Edwin J. Cohn and Rebekah R. Cohn recorded in Book 2831, Page 145. The Higginson Property was originally acquired in 1922 by Defendant Higginson's father. The Higginson family has occupied the Higginson Property regularly during at least summers since 1922.

5. The "Passageway" is a passageway part of which is shown on a plan (Exhibit 2) entitled "Plan of Land At Sandy Cove Cohassett Mass. Belonging to Charles H. Lothrop", dated December 30, 1921 Henry A. Litchfield, C.E. recorded in Book 1716, Page 469. The rest of the "Passageway", as claimed by Plaintiffs, is over the easterly-most portion of the Wallace Property. The portion on the Wallace Property is not shown by any record plan in evidence. The portion of the Passageway shown on the 1921 plan (the portion on the Higginson Property) is five feet wide. The portion on the Wallace Property has been described in the testimony as about the same width.

6. A copy of a portion of Chalk 2 is attached, to which I have added slightly. The Properties of the Eisenhauers and the Bryants abut on Hobart Lane, their houses being marked "E" and "B" on the attached. The Wallace Property is southeast of the Eisenhauer Property and the Wallace house is marked "W". The Higginson Property is southeast of the Wallace Property; the Higginson house is marked "H". The Higginson Property is by far the largest of the four, having a substantial open area and a tennis court. The Passageway starts from a set of steps at the rear of the Bryant Property. The steps continue across most of the Eisenhauer Property. The portion of the Passageway on the Eisenhauer Property is marked "1" on the attached. The Passageway, as claimed by Plaintiffs, then angles slightly to the south and leads southeasterly from the rear of the Eisenhauer Property, close to the northeasterly-most boundary of the Wallace Property. The portion on the Wallace Property is marked "2" and I shall refer to it as the "Wallace Path Area". The Passageway continues, still southeasterly, across a portion of the Higginson Property, marked "3" on the attached, passing through a wisteria arbor. It then takes a sharp turn to the left and proceeds northeasterly over more of the Higginson Property to Lothrop Lane, from whence access to Sandy Cove Beach may be had. The approximate property lines of the four Properties are shown by the heavy black lines on the attached. The house marked "M" belongs to a neighbor, Mrs. McLaughlin, who is not a party in this action, but who testified.

7. The Bryant Property and the Eisenhauer Property were once combined as a Lot B on the Lothrop Plan. That Lot B was conveyed to John E. and Eleanore Woods in 1943, at which time the house now on the Eisenhauer Property had not been constructed. The Woods, then owners of both the Bryant and Eisenhauer Properties, constructed the house on what is now the Eisenhauer Property in stages and eventually moved over to it. They conveyed what is now the Bryant Property, with their original house, in 1965, and since then the two Properties have had separate owners.

8. The deed to Woods, and at least some of the subsequent deeds in the chains to Plaintiffs, includ a grant of a right to pass and repass over the five foot passageway shown on the 1921 plan but make no reference to the Wallace Path Area. Some or all of Plaintiffs and their predecessors have believed they had the right to use the Passageway. In any event, Plaintiffs now concede that they have no record rights in the Passageway and that their rights must be established by prescription. Apparently the 1921 plan was recorded in conjunction with the establishment in 1916 of record rights to allow access to the Beach over the Higginson Property from the Wallace Property.

9. The Passageway is clearly discernible on the ground at portions 1, 3 and 4. However, there is no path to be seen in the Wallace Path Area. The route of the Passageway in the Wallace Path Area, as claimed by Plaintiffs, passes over the edge of a large back lawn on the Wallace Property. There was considerable conflicting testimony on whether there was a path through the brambles and underbrush in the Wallace Path Area prior to Mrs. Wallace clearing out and planting her back yard in 1982 or 1983, but as the land now lies, to use the Passageway to get from Plaintiffs' Properties to the Beach, one must pass over the back lawn of the Wallace Property. There are two aerial photographs of the general area, one from 1978 and the other from some time prior to 1959. Both show the Wallace Path Area as overgrown with trees and other vegetation and on neither is a path visible, although because of the height from which each was taken, the photographs are not conclusive.

10. The Bryants and the Eisenhauers can reach the Beach by a roundabout route over the roads shown on the attached, that is, southerly on Hobart Lane, then easterly on Atlantic Avenue and then northerly on Lothrop Lane. The Passageway provides a much more direct and convenient access.

11. The testimony was in conflict on four general issues: whether there was a path over the Wallace Path Area; whether there had been use of the Passageway sufficient to establish rights by prescription; whether the path on the Wallace Path Area had been blocked and signed so as to interrupt any such use; and whether the terrain and vegetation were such that Defendants could see people using the Passageway.

12. Plaintiff's witness James A. Woods testified that: his family moved into the Bryant House in 1943, when he was nine years old. The family consisted of the witness, his parents and a brother and sister. They used the Passageway regularly to reach the Beach. The Wallace Path Area was overgrown with brambles and the path had to be cleared out once a year by gardeners employed by the Woods family. The gardeners reported confrontations with owners of the Wallace Property and the witness admitted that brush was placed in the path to discourage its use. In addition to family, friends of the family used the path. It was used in winter as well as summer. The witness left the property in 1959 but returned regularly until his mother sold the Eisenhauer Property in 1972, coming weekly in the summer with his wife and children. His parents used the path at least weekly in the summer. This testimony was corroborated by Mr. Wood's two sisters for the periods 1943 through 1955 and 1951, respectively, including an admission by his sister Margaret that garden trash was placed in the pathway from time to time.

13. Plaintiff Vernita W. Bryant testified as to summertime weekly use during her ownership (1984 to date). Plaintiff Jack D. Bryant testified as to frequent use of the Passageway by himself and his two children. Of the owners intervening between the Woods and Bryants, the period from 1968 to 1979 was accounted for by the Madigan family. Both Mr. and Mrs. Madigan testified that they and their five children used the Passageway at least weekly in the summer, both for bathing and boating at the Beach, that the Wallace Property was heavily vegetated, but that the Wallace Path Area was kept open by use. Richard Madigan, Jr. testified as to very frequent use of the Passageway by himself, siblings and friends. Robert C. Bergenheim owned the Bryant Property from 1979 to 1984, when he sold to the Bryants; he testified that some of his seven children would use the Passageway once or twice a week in the summer. There was no testimony as to use of the Passageway by M. Brooks Brown and his family (1965 to 1968).

14. As to the Eisenhauer Property, both the Plaintiffs Eisenhauer testified as to their use of the Passageway, primarily in the summer, when they used it three or four times a month (she) and two or three times a week (he). John Woods' testimony carried his family's use down to 1972, when his mother sold the Eisenhauer Property. Two of Mr. Woods' sons also testified to use of the Passageway as very young children in the late 1960's, when the Woods family lived in the house on the Eisenhauer Property. There was no testimony by owners of the Eisenhauer Property from 1972 to 1986, when the property passed through the hands of the Urmson, Tibbets, Broeffle and Chase families.

15. Defendant Dorothy Coleman Wallace testified that: she used the Passageway in summers, twice a day unless the weather was bad. She didn't see people other than her family on the Passageway. The landscaping at the rear of the Wallace Property was done eight or nine years ago, before which her rear yard was a mass of brambles and other vegetation. She remembers the first path cut in 1956 (see below) and she related conversations her husband had with Mr. Woods, who said he didn't know it was the Wallace's land. She saw some teenagers crossing through the brambles once. She instructed her gardeners many times to put up signs. She saw the Woods children cross maybe four times. Otherwise, she saw no one outside her family and guests.

16. Dr. James W. Wallace, son of the Defendant Wallace, testified that: he lived in the Wallace Property, his family's home, from 1943 until he married in 1959. He spent all summer there every year until 1959 and visited his parents after that. There was an impenetrable jungle from behind the house right across the Wallace Path Area. The Wallaces had a path very close to the Higginson Property, which connected with the westerly end of the Arbor. No one other than the Wallace family and guests used the Passageway (i.e., the portion on the Higginson Property). Although Witness used the Higginson portion of the Passageway frequently he never encountered any such others, except for one or two occasions. There was no path in the Wallace Path Area until 1956, when someone cut a path in. In response he put a chain across the path at the Woods' end and a "No Trespassing" sign. Another path was put in 1976, which he and Attorney Lappin obstructed with a saw horse and another sign. Witness was present when Witnesses' father confronted Mr. Woods in 1956. Mr. Woods agreed that he would not trespass to Sandy Cove across the Wallace Property.

17. Other members of the Wallace family -- Mrs. Wallace's daughters, Ann and Constance, her son, Daniel, and her daughter-in-law, Dorothy, gave corroborative testimony -- that they used the Higginson portion of the Passageway frequently but, with very limited exceptions, saw no one outside the family and guests, that their back yard area was a jungle of vegetation preventing passage and that there was no path in the Wallace Path Area except that some of them do remember the 1956 path.

18. Defendant Higginson testified that he spent every summer at the Higginson Property since his childhood in the early 1930's, except for 1963 and 1972. He confirmed the jungle in the Wallace back yard and that sometime prior to 1962 there had been an area cut through the brambles, but then blocked with garden trash. He has not seen the Eisenhauers on the Passageway. His testimony was corroborated by various members of his family - his sister Sarah, who lived on the Higginson Property full-time from 1928 to 1936 and then summers until 1945; his wife Genevra, who testified that she was in the garden on the Higginson Property constantly and did not see the Woods on the Passageway and that she saw no path over the Wallace Path Area; his sister Susan McVeigh, who summered in various Cohasset houses every year except from 1954 to 1966 and his son Steven. With rare exceptions, they all said, the only persons using the Higginson portion of the Passageway were the Wallaces and their family and guests.

19. Defendants' witness, Lucille McLoughlin, testified she purchased her property in 1953. At that time her upper lot and the directly abutting Wallace Property were a jungle. From 1953 until 1976, when her husband died, she lived on her property only summers; since 1976, she has lived there full-time. She had her upper lot thinned out soon after she moved in, and if she were in her upper lot she could observe who used the Wallace Path Area. If she were in her house, she could not, because of the vegetation which remained and because of a picket fence on her side of the arbor, observe if there were persons travelling along the Wallace Path Area or through the arbor, but could clearly see the last leg of the Passageway, numbered 4. The people using the Passageway were the Wallaces and their friends "and practically nobody else". She would see the Woods use it very infrequently, weeks would go by and she wouldn't see any Woods' use. She has seen the Plaintiffs only very occasionally. She did not observe any of the intervening owners (after Woods) using the Passageway. She observed no path in the Wallace Path Area, and the whole area was a bramble jungle. She traversed the path to the Wallace back door and didn't see a path in the Wallace Path Area.

20. Henry F. Davis, a landscape consultant employed by Mrs. Wallace, testified that he was familiar with the Wallace Property since the early 1970's. He confirmed the "jungle" aspect of the Wallace back yard. He saw no path in the Wallace Path Area. His testimony was inconclusive on whether the line of sight from the Wallaces' back porch to the Passageway was blocked.

21. There was little testimony as to the owners of the Eisenhauer Property between 1965 and 1986 (and none from them directly). Plaintiff's witness Ann Madigan said the Urmsons used the Passageway (although she was not clear how often), but that the Broeffles were not interested in the Beach and did not. Richard Madigan, Jr. stated that the Urmson children used the Passageway "quite frequently". Defendant's witness Genevra Higginson testified that she had on occasion given the Tibbets and Urmsons permission to cross the Higginson Property (although not specifically the Passageway) to get to the Beach. Plaintiff Bryant testified that he saw Mrs. Chase and her two children use the Passageway on weekends but he did not know how frequently.

22. As to the Bryant Property, I conclude that its various owners and occupants did use the Passageway occasionally, but not with the continuity, regularity and frequency necessary to establish prescriptive rights. Plaintiffs' counsel in his able brief stresses the location of the steps leading from the back door of the Bryant house in the direction of the Wallace Property. They do support the idea that at some point people in the Bryant house were accustomed to pass directly over the Wallace and Higginson Properties to the Beach. However, that could well have been in the distant past and I am satisfied that during the period to which the testimony relates (1943 forward) the Wallace Path Area was heavily vegetated with brambles and other obstructing growth. I conclude that people from the Bryant Property may well have made their way through there occasionally to get to the arbor and the rest of the Passageway but that the use was insufficient to create a meaningful path. That is particularly true with respect to the period from the early 1980's to date, during which the Wallace Path Area has been part of the Wallace lawn; there simply is no indication, at least now, of any foot traffic. I conclude that over the years there was some use of the Passageway, made difficult by the heavy vegetation in the Wallace Path Area; that usually the use that did occur was tolerated by the Defendants; but that on other occasions, particularly when attempts were made to clear a pathway and facilitate passage, Defendants resisted. Matters drifted along in this mutually unsatisfactory posture until the mid-1980's, when, for reasons not apparent in the record, matters came to a head in exchanges of correspondence in which the Defendants offered passage to Plaintiffs but only as a courtesy, offers rejected by Plaintiffs.

23. I conclude that on the two occasions a more formal path was cut in (1956 and 1976) the Defendants Wallace took counter-measures, putting up a chain on one occasion and one or more saw horses on another, together with depositing garden trash in the pathway and posting no-trespassing signs. These measures were legally sufficient to interrupt the activities of the Plaintiffs' predecessors. Powell v. Bragg, 74 Mass. 441 (1857); Gadreault v. Hillman, 317 Mass. 665 (1945). Defendants could have taken sterner actions, it is true, but it would not be reasonable to require such in the context of persons who, for most of our period, were treating each other with commendable neighborly tolerance.

24. I further conclude that while the lines of sight from the parts of the Wallace House to the Passageway may have been questionable, no such possible impediment existed with respect to the Higginsons. Also, much of the testimony of the Wallace witnesses was to the effect that they themselves were on the Passageway frequently and did not see strangers.

25. The Eisenhauer Property stands on the same footing as the Bryant Property as to matter pre-1965. If the Bryant Property had acquired rights, during the period 1943 to 1965, they would inure to the benefit of the Eisenhauer Property, even though another house (the Eisenhauer's) was added and the Eisenhauer Property conveyed out. Baldwin v. Boston & Maine R. R., 181 Mass. 166 (1902). There is almost a total lack of evidence supporting any separate claim for the Eisenhauer Property after 1965. All of this is of no consequence, however, because, as stated above, the claims of the Bryant Property were not established.

26. Each Defendant raised the Affirmative Defenses of laches, statute of limitations and consent (that any use by Plaintiffs had been by consent and not adverse). Defendants did not press any of those Defenses and I need not pass on them, except to say that there was no evidence of laches and that while the Higginsons seem to have at times tolerated intrusions on their property, they did not consent, and the Wallaces were active in opposition.

27. Neither set of Plaintiffs has met their burden of establishing the claimed prescriptive rights.

Judgment accordingly.

exhibit 1

Chalk 2