MISC 135563

November 13, 1991

Barnstable, ss.



By complaint filed July 13, 1989, pursuant to G.L. c. 231A, §1, Plaintiff seeks a determination of the validity, nature and extent of her rights in and to a certain right of way ("the Way"), [Note 2] including the right to install utilities and use an existing telephone pole line ("the Pole Line"), in Brewster running from land of Plaintiff to Point of Rocks Road, a public way.

Plaintiff further asks that this Court enjoin Defendants from obstructing Plaintiff's access either by motor vehicle or on foot over the Way and from interfering with Plaintiff's use of the Pole Line serving her property.

By Answer and Counterclaim filed on August 14, 1989, Defendant asks that this Court to determine and declare that Plaintiff's use of the Way is and has been without right and enjoin Plaintiff and/or her successors and assigns from using the Way for any purpose.

On April 19, 1991, the parties filed a statement of agreed facts and Trial Memoranda.

This case was tried on April 18, 1991, at which time there was no court-appointed stenographer although the proceedings were recorded on tape. Five witnesses testified and twenty-five exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

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

1. Since 1963, Plaintiff has owned a parcel of land ("Locus"), which is shown as Lots 66 and 67 on a plan entitled "Den-Robin-Village in Brewster, Mass." dated October 9, 1947 and recorded in the Barnstable Registry of Deeds in Plan Book 93, Page 151 ("the Plan")(Exhibit No. 1).

2. Locus has frontage on the Way, a private way shown on the Plan as Bay View, but also known as Swift Lane.

3. Defendant resides on the Way to the east of Locus on the parcel marked on the Plan "Mary W. Gongaware" ("the Plaice Parcel").

4. While there is a narrow footpath leading westerly from Locus, Plaintiff has no vehicular access from Locus to any public way other than over the Way.

5. There is an existing telephone pole line on the Way, in which Plaintiff claims rights.

6. Plaintiff has owned locus since August 13, 1963. Until 1980, she resided at Locus from September through June of each year and rented her house on Locus ("the Dwelling") during the summers. From 1980 until recently, she resided at Locus only during the summer and on weekends. She has used to Way for access to and egress from the Dwelling during the period she resided at Locus. She has occasionally contributed to repairs and maintenance of the Way including the repair of a traffic mirror and payment for snowplowing. Plaintiff and her tenants have also used the Pole Line and public utilities supplied thereby while occupying the Dwelling.

7. The Dwelling was constructed in 1958. During its construction, Plaintiff's father, a predecessor in title to the Plaice Parcel, removed a fence along the Locus and Plaice Parcel boundary ("the Boundary") which fence blocked the Way. It is unclear whether there was a gate in the fence. The builders accessed Locus via the Way. In 1965 and 1966, Defendant's father put "weir" poles across the Way at the Boundary. After 1969, Defendant occasionally put insignificant and insubstantial pieces of log or fence for periods averaging a couples of weeks, but for no longer than a month, around the Boundary. Plaintiff, however, either did not notice or did not find such items to be obstructions until 1987, and was not impeded by them in her use of the Way.

The dispositive issue herein is whether Plaintiff and her predecessors have utilized the Way and Pole Line in a manner such as toacquire 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).

I find that from 1963 to the present there is insufficient evidence to establish that either the Defendant or her predecessors gave Plaintiff permission to use the Way. When there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained. Truc v. Field, 269 Mass. 524 , 528-9 (1930); Tucker at 324. I further find that the continuous use of the Way until 1987 is sufficient to give rise to an easement by prescription.

Defendant argues that her occasional placing of debris on the Way prevented Plaintiff's acquisition of prescriptive rights. To prevent others from gaining prescriptive rights over his property, a land owner must:

. . . assert [his rights] to the other party by an overt act, which, if the easement existed, would be a cause of action. Such an assertion interrupts the would be dominant owner's impression of acquiescence and the growth in his mind of a fixed association of ideas, or if the principle of prescription be attributed solely to the acquiescence of the servient owner, it shows that the acquiescence was not a fact. Brayden v. New York & C. Railroad, 172 Mass. 225 , 225-6 (1898); Gadreault v. Hillman, 317 Mass. 656 (1945); Ryan at 264.

The Ryan court further explained that the act must be unequivocal. In short such act must be of sufficient nature to interrupt the act in such a manner that the user is aware of the interruption. I do not find Plaintiff's activities to have constituted such act.

Here, despite their congenial relationship with Plaintiff, neither Defendant nor her father ever spoke to Plaintiff about her or her tenants' use of the Way (See Macleod v. Davis, 290 Mass. 335 (1935) and Akasu v. Power, 325 Mass. 497 (1950)). Further, Defendant's occasional attempts to preserve her rights did not physically prevent Plaintiff's use of the Way nor put her on notice that the use of the Way was in dispute and accordingly were not sufficient to demonstrate Defendant's objection to Plaintiff's or her tenants' use of the Way.

The findings herein do not foreclose Plaintiff's argument that she has rights in the Way arising from her chain of title to Locus.

Accordingly, I find that Plaintiff has acquired an easement by prescription in the Way leading from Locus to Point of Rocks Road. I further find that Plaintiff has established an easement in the Pole Line and the public utilities served thereby.

Judgment accordingly.


[Note 1] Originally, the list of defendants included H. Robert Eckhardt, Marion H. Eckhardt, and Myra B. Oliver, against whom Notices of Dismissal were filed pursuant to Mass. Rul. Civ. P., Rule 41(a) (1) and Miriam Lepreau, Jacques Landron, Jean G. Landron, Raymond A. Sullivan, Jeanne C. Sullivan, Hal B. Barwood, Ira J. Gorfinkle and Marine Midland Bank and Sarah Harvey Nelson, Co­Trustees under the will of Charlotte S. Harvey, all of whom were defaulted pursuant to Mass. Rul. Civ. P., Rule 55 (a).

[Note 2] Although there is a dispute as to whether the Way is composed of one or two separate roads, I use the term to describe a way or cart path presently abutting both Plaintiff's and Defendant's lands.