CHRISTYNE SABALL vs. KOBBE A. LA PERLE also known as KOBBE A. SMITH.

By complaint filed May 27, 1988, Plaintiff seeks a declaration, pursuant to G.L. c. 187, §2, that she has acquired two easements by prescription ("the Prescriptive Easements") over land owned by Defendant and located at 10 Chapel Street in Shirley ("Locus") for access to Plaintiff's property located at 5 Porter Street in Shirley ("Plaintiff's Property") and further seeks the removal of fences blocking the Prescriptive Easements together with an injunction prohibiting Defendant from interfering with Plaintiff's future use of both easements. Plaintiff also claims damages for Defendant's trespass. On July 7, 1988, Defendant filed a counterclaim seeking an injunction preventing Plaintiff from trespassing on Locus.

On November 25, 1988, Plaintiff filed a Motion for Partial Summary Judgment which was subsequently denied on February 14, 1989. On February 19, 1991, Plaintiff filed a Motion to Amend Complaint which was allowed on that day.

This case was tried on February 19, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Six witnesses testified and six exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

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

1. The parcels of land which are the subject of this dispute are shown on a plan entitled "Right-of-Way Plan, Shirley, Mass., made for Christyne A. Saball, June 26, 1989" ("the Plan"). Plaintiff alleges prescriptive easements over those parcels labelled as "PROPOSED NEW RIGHT OF WAY "A" 175 SQ. FT." and "PROPOSED NEW R.O.W. "B" 131 SQ. FT." ("Areas A and B" respectively) on the Plan.

2. Plaintiff acquired title to Plaintiff's Property through three separate conveyances. The first deed is dated December 16, 1954 and recorded at Book 8817, Page 435 in the Middlesex South Registry of Deeds, [Note 1] from Henry J. Michaud and Natalie Michaud to Plaintiff and Anson D. Saball, her late husband, grants, among other rights, an easement as outlined in red and marked "12 FT. WIDE RIGHT OF WAY SHOWN ON PLAN OF LAND SURVEYED FOR KOBBE A. LaPERLE, DATED MARCH 1988" on the Plan ("the Express Easement"). The location and extent of the Express Easement is not contested.

The second deed is dated July 12, 1961, recorded at Book 9995, Page 211. The third is dated March 14, 1952, recorded at Book 7880, Page 428 and 429, from Rudolph J. Gionet and Emelie M. Gionet. Anson D. Saball died in 1984.

3. Defendant acquired Locus by deed dated May 15, 1980, recorded at Book 13970, Page 120, which deed recognizes the Express Easement. She has lived at Locus since 1978 and has lived on Chapel Street since 1976.

4. In the spring of 1988, Defendant erected a stockade fence across the northerly side and a portion of the easterly side of Area A.

5. Since 1986, a rail fence has been standing on the northerly and easterly side of Area B.

6. Defendant has made numerous demands upon Plaintiff to discontinue unlawful trespass on her property.

7. Plaintiff lived on Plaintiff's land from 1952 until 1978 at which time she moved to Littleton Turnpike in Shirley. From 1952 to the present, with the exception of 3 or 4 years, Plaintiff's son, John has lived on Plaintiff's Land. Plaintiff rents out a portion of the house on Plaintiffs land. From 1957 to 1983 there was a trailer in the backyard on the west side of a garage as described below. The trailer was rented to various persons, usually from Ft. Devens. It was seldom unoccupied. From 1957 to 1983, as long as the trailer was in existence, tenants as well as delivery persons would cross at least a portion of Area A by vehicle and foot to access the trailer.

8. On a regular basis Plaintiff and her tenants would also walk from house to garage through Area B. She had two apartments and she often saw tenants and family members using Area B. The use stopped when a fence was erected three years ago.

9. There is a large double door garage, 20' x 40' on Plaintiff's land at the head of, and facing, the twelve foot right of way, all as shown on the Plan. Obviously, the doors of the garage overlap the width of the easement. The garage has been in existence since prior to Plaintiff's ownership. Plaintiff and her family have used it for storage and work space but not for housing automobiles. Prior to the erection of the stockade fence, the most convenient and usual access to the westerly door was over a portion of Area A. From 1952 to his death in 1965, Anson Saball used this access to bring a large boat to and from the garage and to bring items to the garage for repair and/or storage.

10. Persons wishing to access the garage from the Porter Street house can conveniently do so without using Area B. It is possible, although not as convenient to so access the garage by automobile, the distance between the garage and the northeasterly corner of Area B being about eleven feet. Until a few years ago, Area B was largely impassible by vehicle because of the location of a large tree, since removed.

As to Area A, I have found that there has been an uninterrupted, open and notorious use of at least a portion thereof for the period between 1954 and 1983, for access by vehicle and foot to the trailer which was located on the westerly side of the garage during that period. From 1954 to at least 1984, a portion of Area A was also used to access the westerly door of the garage for boats and other items but not automobiles.

Whenever there has been the use of an easement for at least twenty years, unexplained, it will be presumed to be under claim of right and adverse and will be sufficient to establish title by prescription unless controlled or expiained. Truc v. Field, 269 Mass. 524 , 529 (1930); Tucker v. Poch, 321 Mass. 321 , 324 (1947).

The extent of such easement, however, is fixed by the use through which it was created. Lawless v. Trumbull, 343 Mass. 561 , 562-3 (1962). Some latitude, however, in variation of the use is permitted . . . . [T]he use under which a prescriptive easement arises determines the general outlines rather than the minute details of the interest. But the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use. Id. at 563.

In consideration of the foregoing, I find that Plaintiff and/or her predecessors have acquired a prescriptive easement over that portion of Area A described as follows:

Beginning at the northeasterly corner thereof, then N73° - 43'12"W eight and 82/100 (8.82) feet to a point; thence southerly to the southeast corner of said Area A; thence northerly by the sideline of the parcel marked "12 Ft Wide Right of Way shown on Plan of Land surveyed for Kobbe A. LaPerle . . ." twenty-five and 62/100 (25.62) feet to point of beginning.

The use of said easement is limited to passage by foot and automobile over said land to land of Plaintiff. This decision in no way diminishes or otherwise affects Plaintiff's right in the granted easement.

Moreover, Defendant must remove so much of the stockade fence and/or any other structure, as encroaches on the aforementioned easement or unreasonably interferes with Plaintiffs use thereof.

I find no such rights have been acquired in any portion of Area B.

Judgment accordingly.