MISC 127205

January 23, 1991

Bristol, ss.



By this action filed on March 18, 1988, Ralph G. Conant, Jr. and Ruth L. Conant ("Plaintiffs") seek a determination as to whether Defendant, Charles A. Peirce ("Peirce") has acquired an easement by prescription over a parcel of land owned by them ("Locus"), shown as Lot 58 on the City of Taunton Assessor's Plan No. 4-23 [Note 1] ("the Assessor's Plan") (Exhibit No. 1), for the purpose of gaining access to abutting land owned by the Defendant, Peirce Family Trust. In the event a right of way is found to exist, the Plaintiffs seek a further determination as to the precise location, time and mode of use of such way and, alternatively, in the event no right of way is found, the Plaintiffs seek a determination that the Defendants [Note 2] are enjoined from entering upon the Plaintiffs' land. By Counterclaim, Peirce seeks a determination as to the existence of a right of way in Locus and to estop Plaintiffs from interfering with the rights of Defendants with regard to Locus.

The case proceeded to trial in Boston on May 23, 1989, at which time the Court appointed a stenographer to record and transcribe the testimony. A second and final day of trial was held at the Bristol County Superior Court in Taunton on October 5, 1990, prior to which the Court took a view of Locus, in the presence of counsel. Eight (8) witnesses testified and ten (10) exhibits, all of which are incorporated herein for purposes of any appeal, were entered into evidence.

After considering the evidence, testimony and pertinent documents, I make the following findings of facts:

1. By deed from Anne Lois King, dated April 3, 1961, recorded at Book 1380, Page 29 in the Bristol County Northern District Registry of Deeds [Note 3] (Exhibit No. 4), Plaintiffs acquired title to Locus and an adjacent parcel shown on the Assessors Plan as Lot 56. Locus is an unimproved parcel containing 241,748 square feet of land, with 126.56 feet of frontage on the northerly side of Middleboro Avenue (See Exhibit No. 3).

2. Lots 51X and 54X are owned by Peirce and abut Locus to the west. Lot 61 is owned by the Peirce Family Trust and abuts Locus to the north, east and west, but does not have frontage on Middleboro Avenue. Lots 50-A and 63, in which the Peirce Family Trust has an interest, are in the area of Locus. Peirce bases his claim to an easement on adverse use for access to Lots 50-A, 61 and 63 ("the Backlands").

3. Peirce is a 53 year old self-employed dairy farmer who has lived on Lot 54X all of his life. In addition to the dairy, he also grows sweet corn, delivers fuel oil, and cuts and sells firewood. He uses the Backlands to grow corn, firewood and hay.

4. Since approximately 1947 Peirce has harvested or helped harvest hay from various fields in the Backlands and has transported the hay on a path or wood road across Locus to a barn located on Lot 51X. There has been a fence surrounding a major portion of Locus at least since Plaintiffs purchased it in 1961. (See Exhibit No. 3) Peirce had access to Locus either through a barway or by removing and replacing a wire "gate", both at the same location accessing the aforesaid path or road. In 1947, the path or road through Locus was overgrown but passible. Due to Peirce's increased farming activities in the 1950's, the path, or wood road was through usage widened to about 10-15 feet ("the Roadway"). Its approximate location has been marked on Exhibit No. 1 by the letters "A" through "G" which correspond to the various photographs. (Exhibits No. l0A-G).

5. The extent of Peirce's use varied over the years, but since 1947 at a minimum he harvested one of the fields at least two (2) times a year and another at least once a year. The harvesting of hay was done from June until the first of November. In addition he grew corn on the Backlands and used the Roadway for access for planting, cultivation and harvesting those crops.

6. In the early 1960's, Peirce employed his nephew, William McCaffrey who used the Roadway extensively for agricultural purposes.

7. Peirce has cut firewood in the Backlands for the past 30 to 40 years and used the Roadway to transport the wood back to the barn. For the last few years, he has used the roadway heavily mainly for transporting wood, cutting between 20 and 30 cords per year.

8. As shown on Exhibit Number 1, a long narrow portion of Lot 61 abuts Lot 5lX to the west, however, as testified to by William McCaffrey and confirmed on the view, the physical condition of this strip render it difficult to traverse with vehicles for purposes of transporting hay, corn, or firewood.

9. On November 23, 1987, Plaintiffs posted Locus with a notice to prevent acquisition of easements by prescription and such notice was recorded by Plaintiffs on March 3, 1988 in accordance with G.L. c. 187 §3 (Exhibit No. 5).

At issue herein is whether Peirce has utilized Locus prior thereto in a manner such as to acquire an easement by prescription. A prescriptive easement can be acquired upon the land of another by open, notorious, adverse and continuous use for a period in excess of twenty years. G.L. c. 187, §2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v Poch, 321 Mass. 321 , 323 (1947). Those requirements provide " . . . . [the owner] notice of the hostile activity of the possession so that . . . the owner may have an opportunity to vindicate his rights by legal action." Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

There is no dispute that the use made by Peirce and his family was adverse. Plaintiff's argue that there was insufficient evidence of use to amount to a prescriptive easement. Here, the continuous use of the Roadway for the purposes of transporting hay, corn and timber and the use of equipment in connection with that enterprise is sufficient to give rise to an easement by prescription. The nature and extent of the use required to establish a right by adverse use vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961) quoting LaChance v. First National Bank & Trust Co., 301 Mass. 488 , 490 (1938). By analogy, the nature and extent of use necessary to establish an easement by prescription also varies with the land's character. In the present case, the Backlands were used for cultivation purposes and the Roadway was needed for access for cultivation and for transporting wood, corn and timber after they were harvested. Accordingly, the use of the Roadway was continuous for those purposes.

"The extent of an easement by prescription is fixed by the use through which it was created." Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962); O'Brien v. Hamilton, 15 Mass. App. Ct. 960 , 962 (1983). While some variation in the use is allowed, that variation may not be substantial and must be consistent with the general pattern formed by the adverse use. Id. at 563. In the present case, Peirce and his family used the land primarily to cultivate crops and to harvest hay and corn and transport cut wood from the Backlands.

Accordingly, in consideration of the foregoing, I find and rule that Peirce has acquired an easement by prescription over Locus. Plaintiffs submitted a Post-Trial Brief and Defendant, Peirce submitted Requests for Findings of Fact and Requests for Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Although Peirce has submitted no engineered plan showing the location of the easement, I find and rule, based on my view of the Roadway and on the existing evidence, that the easement by prescription in this case is ten (10) feet wide and begins at the Barway currently located on the northern boundary of Lot 51X. The easement runs in the line of the existing Roadway in a northeasterly direction, running roughly parallel, but not adjacent to the northwest boundary of Locus. It then follows the Roadway as it turns to the east, running roughly parallel but not adjacent to the northeasterly boundary of Locus, until it reaches the southeasterly boundary with Lot 61. Should Plaintiff and Defendants be unable to agree on the exact location of said easement, Defendant, Peirce may file, within one year of any final action on this matter, a plan showing the location of the easement, subject to approval by this Court. The use of said easement is limited to access of the Backlands for the purposes cultivating field crops including hay and the harvesting of cord wood and transporting the same.

Judgment Accordingly.


[Note 1] All Lots referred to herein are the Lots designated on this Plan.

[Note 2] The Defendants, Taunton Savings Bank, as the holder of a mortgage on the Plaintiffs' land, the City of Taunton, as the holder of a lien on the land of the Peirce Family Trust and Thelma E. McCaffrey, Nellie May P. Blake, Dorothy R. Tibbetts, Barbara L. Tocchi and Etta Martin, as beneficiaries of the Peirce Family Trust, are joined herein as parties in interest. The Plaintiffs seek no relief against them, but request that the Decision and Judgment ultimately entered herein be binding upon them.

[Note 3] Unless indiated to the contrary, all recorded instruments are located in this Registry.