This is a complaint brought by the owners of two properties situated in the one case on Mary Chilton Road and the other on Alden Road, both in the Town of Needham to secure a determination as to the rights of the Town of Needham (the "Town") and its inhabitants in that portion of so-called Powder House Road situated on or adjacent to land of the plaintiffs. The plaintiffs claim that any rights in this private way, if it existed in the location claimed by the Town, have been lost by abandonment or by the exercise by the owners of the servient tenement of adverse possession, whereas the Town claims that its rights are extant and cover the twenty foot wide layout shown on Exhibit No. 35, the subdivision plan.
On all the evidence, although the question is very close, I find and rule that rights in Powder House Road have not been abandoned, nor have they been lost by the exercise of adverse possession by the owner of the dominant tenement. I do find and rule that the right of way is appurtenant only to land acquired by the Town from the McIntosh Limited Partnership by deed dated January 5, 1989 and recorded in Book 8206, Page 75 with Norfolk County Registry of Deeds to which Registry all recording references herein refer (Exhibits Nos. 13 and 37) and does not include the land acquired from Dr. Frederick J. Stare by deed dated January 4, 1989 and recorded in Book 8204, Page 651 (Exhibit No. 42). I further find and rule that the right of way in any event is a foot path approximately seven to eight feet in width and may be used only by town officers and employees to access and maintain the McIntosh land and were it to be used either to reach the Stare land or for access by the entire community in Needham the easement would be overburdened. This does not leave the public unable to reach the locus since it is possible to walk from the Ridge Hill recreation area although it is a distance and may require the marking of trails. Accordingly the result I reach does not leave this land landlocked nor does it defeat the Town's primary purpose in acquiring the land which was the protection of the locus in its natural state without development. Conversely the result which I reach will not lessen materially the plaintiffs' enjoyment of their homes, and they will not be disturbed by the presence of large numbers of Needham citizens passing over the footpath.
A trial was held at the Land Court on June 20 and June 21, 1991 and July 11, 1991 and a view was taken by the Court on September 12, 1991 in the presence of counsel.
The parties entered into a stipulation of facts which set forth 125 paragraphs, many of which I have incorporated in my findings. In addition to this agreement the parties also agreed to the introduction into evidence as Exhibits Nos. 72 and 73 certain recorded plans, but the agreement as to them related not to the extent of the width of the way in controversy as shown on recorded plans but only that the way had been depicted on plans of record in the past. In addition to these agreed upon exhibits, additional exhibits marked 53 to 71 were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. At the trial there was testimony from Roy A. Cramer, a member of the Massachusetts bar who is a member of the Conservation Commission of the Town of Needham, Robert Bernardo, the owner of the house situated at Lot 25 in the Mary Chilton development and thus an abutter to the plaintiffs Moreno, Patricia Moreno, Margaret Morgan, Candice Winslow Chase, the daughter of the developer of the Powder House Estates and a prominent nursery man in Needham at one time, Raymond Moreno, Elizabeth Anderson, a former conservation officer for the Town, John D. Marr, a Needham selectman and former town engineer, George Giunta, a registered land surveyor and former employee of the Land Court and the attorney who prepared certain plans introduced into evidence, the latter one three witness were called by the town. On all the evidence and based on a joint stipulation of facts I find and rule as follows:
a. Fuller/McIntosh Title
1. By several deeds beginning in 1797 or earlier, Jonathan Fuller, (Sr.) acquired several parcels of land in Needham, Massachusetts.
2. By deed dated May 1, 1797, [Note 1] and recorded at Book 18, Page 103, David Smith, Jr. conveyed to Jonathan Fuller a parcel of land in Needham containing approximately 23 acres. [Attached hereto as Exhibit 1 is a true and accurate copy of said deed.]
3. By deed dated March 30, 1803, and recorded at Book 26, Page 58, J. Oliver Mills conveyed to Jonathan Fuller a parcel of land in Needham containing approximately 2 acres. [Attached hereto as Exhibit 2 is a true and accurate copy of said deed.]
4. By deed dated August 25, 1806, and recorded at Book 26, Page 57, James Smith conveyed to Jonathan Fuller a parcel of land in Needham situated westerly of the 23 acre parcel previously conveyed to said Jonathan Fuller (in deed recorded at Book 18, Page 103), consisting of approximately 7 acres. [Attached hereto as Exhibit 3 is a true and accurate copy of said deed.]
5. By deed dated April 14, 1812, and recorded at Book 42, Page 49 (L), Ruth Smith, as Administratrix of the estate of James Smith conveyed to Jonathan Fuller a parcel of land in Needham containing approximately 18 acres. [Attached hereto as Exhibit 4 is a true and accurate copy of said deed.]
6. By deed dated December 1, 1815, and recorded at Book 55, Page 323 (L), Joseph Kingsbury conveyed to Jonathan Fuller a parcel of land in Needham containing approximately 5 acres. [Attached hereto as Exhibit 5 is a true copy of said deed.]
7. The sketch plan attached as Exhibit 1 to the Affidavit of Yvonne H.P. Silva filed in this action in Opposition to the Defendant's Motion to Dissolve Preliminary Injunction ("the conservation land sketch plan") generally depicts by color coding in green the conservation land currently owned by Town in the Ridge Hill area. [Attached hereto as Exhibit 6 is a true and accurate copy of said sketch plan.]
8. The portion of Powder House Road which is the subject in the instant case, is drawn on the conservation land sketch plan in yellow.
9. The portion of the Town land for which the Town claims appurtenant rights in any portion of Powder House Road is shown on the conservation land sketch plan as shaded in purple labeled A and B.
10. In 1854, the Estate of Jonathan Fuller was the owner in fee of the land on which Powder House Road exists.
11. The sketch plan attached as Exhibit 2 to the Affidavit of Yvonne H.P. Silva filed in this action in Opposition to the Defendant's Motion to Dissolve Preliminary Injunction ("the Fuller sketch plan") generally depicts by color coding the approximate division of the Estate of Jonathan Fuller in 1854 to his two sons, Augustus and Jonathan Fuller. [Attached hereto as Exhibit 7 is a true and accurate copy of said sketch plan.]
12. The parcels conveyed by the heirs of Jonathan Fuller to his son Augustus Fuller are shown in blue on the Fuller sketch plan (Exhibit 2 to the Silva Affidavit). The conveyance is reflected in a deed dated March 23, 1854 and recorded at Book 227, Page 127 (L). [Attached hereto as Exhibit 8 is a true and accurate copy of said deed.] The parcels which were conveyed by the heirs of Jonathan Fuller to Jonathan Fuller (a son) are outlined in orange on the Fuller sketch plan. The conveyance is reflected in a deed dated March 23, 1854, and recorded at Book 227, Page 128 (L). [Attached hereto as Exhibit 9 is a true and accurate copy of said deed.]
13. By deed dated December 28, 1863, Augustus Fuller conveyed to Oliver Smith the parcel shown on the Fuller sketch plan shaded in purple and marked parcel "A". [Attached hereto as Exhibit 10 is a true and accurate copy of said deed.]
14. Eventually, Parcel A on the Fuller sketch plan was conveyed to the members of the McIntosh family. [Attached hereto as Exhibits 11a, b and c are true and accurate copies of said deeds conveying title to William C. McIntosh.]
15. By 1925, title to the parcel shown on the Silva sketch plan shaded in purple and marked parcel "B" had also passed to members of the McIntosh family. [Attached hereto as Exhibit 12 is a true and accurate copy of said deed.]
16. Parcel B appears to include the fee to the right of way running along the southerly boundary thereof which appears to be a continuation of Powder House Road.
17. From approximately 1925 to 1986, Parcels A and B were owned by members of the McIntosh family.
18. From 1986 until 1989, when the Town took title, the McIntosh Limited Partnership owned Parcel A and B shown on the sketch plan.
19. Among other parcels, the Town acquired title to lots A and B shown on the sketch plan in 1989. [Attached hereto as Exhibit 13 is a true and accurate copy of said deed.]
20. In 1985, the Town of Needham sought to purchase from Atlanta McIntosh and/or Alberta McIntosh or their representatives 29.39 acres of land in Needham identified as Parcels 9, 10, 13, 14, and 15 of Town of Needham Assessors Map 218.
21. In connection with that proposed purchase, the Town caused to be prepared a draft purchase and sale agreement. [Typed and a handwritten copies of the draft purchase and sale agreement are attached hereto as Exhibit 14.]
22. The proposed 1985 agreement between the Town and Atlanta and Alberta McIntosh was contingent upon the Town determining that there was access to and from the premies by foot from Powderhouse Road and Mary Chilton Road.
23. The proposed 1985 agreement between the Town and Atlanta and Alberta McIntosh was not consummated.
24. [Attached hereto as Exhibit 15 is a true and complete copy of an Instrument entitled "MCINTOSH LIMITED PARTNERSHIP, CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP" dated as of December 30, 1985.]
25. According to the records of the Office of the Secretary of State of the Commonwealth of Massachusetts, McIntosh Limited Partnership filed a Cerificate of Formation of Limited Partnership on Dcember 31, 1985. [Attached hereto as Exhibit 16 is a true and accurate copy of a certification from the Secretary of State's office regarding McIntosh Limited Partnership.]
26. According to the McIntosh Limited Partnership Certificate filed with the Seretary of State's office, [a copy of which is attached hereto as Exhibit 15,] Paul K. Daley was the sole general partner, and Leo Kahn and Paul Giunta were the sole limited partners of the McIntosh Limited Partnership as of December 30, 1985.
27. By deed dated April 4, 1986, the McIntosh Limited Partnership acquired two parcels of land described in Book 7008, Page 227 from Alberta McIntosh. [Attached hereto as Exhibit 17 is a true and accurate copy of said deed.]
28. The stated consideration in the deed from Alberta McIntosh is $175,000.00.
29. In 1986, McIntosh Limited Partnership filed a Request for a Determination of Applicability with the Conservation Commission for the Town of Needham in which they proposed to construct a bridge and roadway approach system over Fuller Brook.
b. Moreno Title
30. By deed dated May 10, 1910, and recorded at Book 1143, Page 368, Edward Granville Fuller conveyed to Charles E. Anderson a parcel of land, consisting of approxmately 23 acres, in Needham. [Attached hereto as Exhibit 18 is a true and accurate copy of said deed.]
31. By deed dated November 27, 1920, recorded in Book 1475, Page 74, Charles E. Anderson conveyed a parcel of land, consisting of approximately 11 acres, to Morton A. Bigney. [Attached hereto as Exhibit 19 is a true and accurate copy of said deed.]
32. By deed dated February 20, 1959, reorded in Book 3707, Page 107, Morton Bigney conveyed a parcel, consising of approximately 4 acres, to Stuart B. Cornell and Mabel D. Cornell. [Attached hereto as Exhibit 20 is a true and accurate copy of said deed.] The four acre parcel is a portion of the land described in Exhibits 18 and 19.
33. By deed dated May 26, 1964, recorded at Boak 4164, Page 433, the Executor of the Estate of Morton A. Bigney conveyed to William Cross. By deed dated May 27, 1964 recorded at Book 4146, Page 437, William Cross conveyed a parcel to George A. Winslow and his wife Ruth S. Winslow. [Attached hereto as Exhibits 21 and 22, respectively, are true and accurate copies of said deeds.]
34. In 1979, a petition to lay out and accept Alden Road to provide an access road to George Winslow's proposed subdivision in Needham was filed with the Town of Needham.
35. George Winslow submitted a subdivision plan etitled "Definitive Plan of the Subdivision of Land in the Town of Needham, situated off Great Plain Avenue" ("the Subdivision Plan") for approval by the Town of Needham Planning Board. The Planning Board approved the Subdivision Plan.
36. The Subdivision Plan was recorded with the Norfolk Registry of Deeds as Plan No. 753 of 1981 in Plan Book 291. [A true copy of the Subdivision Plan is attached hereto as Exhibit 23.]
37. A Certificate of Action on Definitive Plan Approval, dated June 23, 1981 (the "Certificate of Action") was recorded at Book 5911, Page 211. [Attached hereto as Exhibit 24 is a true and accurate copy of said Certificate.]
38. The Planning Board amended the Certificate of Action by amendment dated August 11, 1981, [a true copy of which is attached hereto as Exhibit 25].
39. In or about October, 1981, William A. Cross was the Town Counsel for the Town of Needham.
40. By deed dated October 30, 1981, recorded at Book 5935, Page 651, George A. Winslow conveyed lots 1 through 39 shown on the Subdivision Plan to Winslow Estates, Inc. Attached hereto as Exhlbit 26 is a true and accurate copy of said deed.
41. By deed dated Oct:ober 28, 1982, recorded at Book 6067, Page 285, and by confirmatory deed dated March 8, 1984 recorded at Book 6358, Page 159, Winslow Estates, Inc. deded "Lot 24" shown on the Subdivision Plan to George A. Winslow. [Attached hereto as Exhibit 27 is a true and accurate copy of the Oct:ooer 28, 1982 deed. Attached hereto as Exhibit 27A is a true and accurate copy of the confirmatory deed.]
42. By deed dated January 3, 1984, George Winslow conveyed to Raymond and Patricia Moreno a parcel of land described as "Lot 24A" in said deed. [A true and accurate copy of the deed is recorded at Book 6323, Page 339 and is attached hereto as Exhibit 28.]
43. By deed dated November 14, 1990, recorded at Book 8787, Page 651, Winslow Estates, Inc. conveyed to the Plaintiffs, Raymond and Patricia Moreno, as tenants by the entirety, that parcel of land in Needham shown as "Powder House Rd." located within Lot 24A . [Attached hereto as Exhibit 29 is a true and accurate copy of said deed.]
44. Plaintiffs Raymond and Patricia Moreno own a single family home at 107 Mary Chilton Avenue.
45. The Town of Needham issued a foundation form permit and a building permit to construct a single family home on Lot 24A. [Attached hereto as Exhibit 30 is a copy of the foundation form permit issued by the Town of Needham.]
46. A portion of the cul-de-sac which marks the end of Mary Chilton Road is within the Moreno property line.
47. Powder House Road, the "paper road" over which the Town of Needham claims an easement, is shown on plans as running through Lot 24A.
48. The Town asserts a right to use the alleged easement over Powder House Road to provide public access to the Ridge Hill conservation area south of the Moreno property.
d. Morgan Title
49. By deed dated April 20, 1946, and recorded at Book 2602, Page 206, Jacob Kuhn and Kathleen B. Kuhn conveyed to Jay and Margaret Morgan a parcel of land in Needham, described in said deed. [Attached hereto as Exhibit 31 is a true and accurate copy of said deed.]
50. By deeds dated September 10, 1956, and recorded at Book 3504, Page 58, Wendell P. and Herbert R. MacIntosh conveyed to Jay and Margaret Morgan a parcel of land in Needham described in said deed. [Attached hereto as Exhibit 32 is a true and accurate copy of said deed.]
e. Town Acquisition History
51. The Town of Needham, acting through its Conservation Commission by its authorized agent Roy Cramer, signed a Purchase and Sale agreement with McIntosh Limited Partnership Agreement dated March 10, 1988.
52. The Purchase and Sale Agreement between the Town and McIntosh Limited Partnership was contingent upon the approval by the Town of Needham at the 1988 Town Meeting of the purchase of the premises on the terms set forth in the Agreement and the appropriation of an amount not less than Six Hundred Eight Thousand ($608,000) Dollars for the purchase of the premises.
53. [A true and accurate and complete copy of the March 10, 1988 Purchase and Sale Agreement is attached hereto as Exhibit 33.]
54. The March 10, 1988 Purchase and Sale Agreement was amended by a document entitled "Amendment to Purchase and Sale Agreement" dated May 10, 1988 and signed by Roy Cramer on behalf of the Town of Needham, acting through its Conservation Commission.
55. [A true and accurate and complete copy of the May 10, 1988 Amendment to Purchase and Sale Agreement is attached hereto as Exhibit 34.]
56. The Town of Needham voted to approve the proposed purchase of the McIntosh Limited Partnership parcel at its adjourned annual Town Meeting held on May 23, 1988. Notice of the Town Meeting vote is recorded at Book 8204, Page 657, [a copy of which is attached hereto as Exhibit 35.]
57. Prior to the Town's purchase of the parcel from the McIntosh Limited Partnership, the Conservation Commission received a letter, dated November 19, 1988 and addressed to Mr. Roy Cramer from Ray M. Moreno and Patricia J. Moreno, objecting to public access over Powder House Road to reach the parcel to be acquired. [A copy of the letter is attached hereto as Exhibit 36.]
58. By deed dated January 5, 1989, and recorded in Book 8206, Page 75, McIntosh Limited Partnership conveyed to the Town of Needham, acting through its Conservation Commission the parcel of land described therein. [Attached hereto as Exhibit 37 is a true and accurate copy of said deed.]
59. Subsequent to the Town's purchase of the parcel from the McIntosh Limited Partnership, Roy Cramer responded to the Moreno's letter dated November 19, 1988 by letter dated January 11, 1989, [a copy of which is attached hereto as Exhibit 38.]
60. The Town paid to McIntosh Limited Partnership the consideration of Six Hundred Thirty One Thousand Five Hundred Dollars ($631,500.00) to acquire the parcel described in Book 8206, Page 75.
61. The parcel described in the deed to the McIntosh Limited Partnership recorded in Book 7008, Page 228 is the same parcel sold to the Town in 1989, and described in the deed recorded at Book 8206 Page 75.
62. At the time the McIntosh Limited Partnership conveyed property to the Town of Needham, Paul K. Daley was the sole general partner, and Leo Kahn and Paul Giunta were the sole limited partners of the McIntosh Limited Partnership.
63. [Attached hereto as Exhibit 39 is a photocopy of Plan entitled "Town of Needham Mass Conservation Commission Map of Fuller Brook Area".]
f. Stare Title
64. By deed dated May 11, 1961, recorded at Book 3895, Page 531, Frederick J. Stare acquired 8 parcels of land in Needham. [Attached hereto as Exhibit 40 is a true and accurate copy of said deed.]
65. By instrument dated May 30, 1975 and recorded at Book 5134, Page 382, a Notice to Prevent easement of a right of way over the Stare parcels was recorded [a copy of which is attached hereto as Exhibit 41.]
66. By deed dated January 4, 1989, recorded in Book 8204, Page 651, Stare conveyed 6 of the 8 parcels described in the May 11, 1961 deed (recorded at Book 3895, Page 531) to the Town of Needham. [Attached hereto as Exhibit 42 is a true and accurate copy of said deed.]
67. The deed from Stare to the Town of Needham, which is recoded at Book 8204, page 651, expressly did not convey any of Stare's rights to use the way known as Cartwright Road or to pass and repass to or from Cartwright Road and the parcels of land thereby conveyed.
68. Dr. Stare, a predecessor in title to the Town of Needham, posted signs prohibiting trespass and other activities on his property.
g. Area History
69. Jay and Margaret Morgan moved to their home at 9 Alden Road in 1946.
70. In or about 1955, Hurricane Carol struck the Needham area.
71. The current site of the Mary Chilton Road subdivision was once part of a farm owned by a Mr. Bigney.
72. When George Winslow purchased the so-called Bigney farm in the early 1960's, he used the area for greenhouses and a nursery.
73. Richard Lloyd and his wife purchased a house and land located on Powder House Road in 1963.
74. In or about 1964, Mr. Winslow constructed for his own use a truck access into the nursery from Great Plain Avenue.
75. This truck access was located approximately where Mary Chilton Road now begins.
76. The topography of this area is such that there is a downward slope and wetlands area directly behind the Moreno house.
77. Property owners in the Mary Chilton Road subdivision have built fences and planted shrubs and trees over that portion of Powder House Road which is South of the Lloyd property and North of the Mary Chilton road turnabout.
78. Several large trees and overgrown shrubs exists along the Powder House Road as it exists south of the Lloyd property.
79. The Town or its predecessors in title to the Ridge Hill conservation land have not objected to the construction of fences over a portion of Powder House Road by individuals other than the plaintiffs.
80. In 1984 there were several deposits of debris consisting of piles of leaves and brush on the Moreno lot.
81. At the time the Morenos purchased their lot, the parcel of land to the south of the Moreno home, which is currently owned by the Town, was in private ownership.
82. The Town has never constructed or caused to be constructed a bridge over Fuller Brook in the area behind the plaintiffs' properties.
83. The Town has not separated the various parcels of conservation land it has acquired from its other adjacent holdings by a fence or another physical means.
84. In 1989, the Town of Needham advised the Morenos that it intended to make use of a right of way known as Powder House Road, which runs adjacent to or through both of the Plaintiffs' parcels, to provide the public with access from Mary Chilton Road to the Town conservation land.
85. The Town asserts that the Town and its inhabitants and others have the right to use Powder House Road for access to the Town's conservation land.
86. The Town asserts a right to traverse Powder House Road for the distance between Mary Chilton Road and the conservation land.
87. The Town asserts a right of way over Powder House Road from Mary Chilton Road by virtue of its ownership of the parcels of land described in Exhibit 13 and shown as parcels A and B on Exhibit 6.
88. In 1989, the Town of Needham acquired a parcel of land, described in Exhibit 13, which is south of Fuller Brook and contiguous to a portion of the Town's Ridge Hill conservation area.
89. The parcel of land south of Fuller Brook descibed in Exhibit 13 and contiguous to a portion of the Town's Ridge Hill Reservation has been added to the Town's conservation land.
90. The Town wishes to establish an entrance to the conservation land by way of the Powder House Road right of way from Mary Chilton Road.
91. [Attached as Exhibit 43 is a photocopy of a Map of a portion of the Fuller Brook Area prepared by the Town of Needham and used by the Needham Conservation Commission, with certain handwritten notations thereon.]
92. The Town wishes to describe the Mary Chilton Road access point as a pedestrian entrance to the conservation area in its Conservation Commission brochures and other materials circulated in the Town of Needham.
93. The Town intends to describe the Mary Chilton Road access point as an access which is closed to motor vehicles, including motorized dirt bikes and snow vehicles.
94. Mary Chilton Road was accepted by the Town as a public way in May of 1988.
95. That portion of Alden Road immediately east of Mary Chilton Road is a private way as shown on Exhibit 23.
On all the evidence I also find and rule in addition to the stipulated facts as follows:
96. Candice Winslow Chase grew up as a child in the house at the corner of Powder House Road and Great Plain Avenue which is numbered 1816 Great Plain Avenue and now lives in the house at 21 Powder House Circle. As a small child she remembers Morton Bigney, the owner of the land now known as the Mary Chilton subdivision as a kindly recluse, a figure of interest to children and the owner of an apple orchard on the land which was greatly overgrown. Her grandfather had started the Winslow nurseries. Her father in 1964 acquired the Bigney land as a place to grow additional nursery stock. He removed all the orchard, the undergrowth and constructed a grid of roads so that he could drive through the land to obtain the stock for customers. Just south of the Lloyd house he constructed a fence which went all the way across to Pilgrim Road as a protection for the stock which lasted until the subdivision was built, and there also was another chain link fence barring access to the lower part of the land in approximately the location of the O in Mary Chilton Road as shown on the subdivision plan. There also was a dirt road at that time leading through what is now the Mary Chilton Road layout to an Algonquin Gas facility to the west. While the witness was familiar as a child with this neighborhood, as it was a treat to proceed to Fuller Brook which is southwesterly of the development, she was not cognizant of each stage in the construction of the houses during the later years.
97. Much of the organic material from the Winslow operation was dumped on the Morenos' lot and specifically in the area where the Town claims Powder House Road to be situated. If sod is not sold and dries out, it cannot be used, and much of that was dumped by Mr. Winslow in this vicinity. There also was another fence or at least post with chains between them in this part of the development to again protect the nursery stock.
98. No witness that testified had ever seen any member of the McIntosh family using the so-called Powder House Road. Prior to the 1955 hurricane there was a man who cut the hay on one of the McIntosh fields and proceeded through what is now said to be the location of Powder House Road and across Fuller Brook, but after the hurricane took away the bridge he was not seen again to enter onto the McIntosh fields.
99. The only use of the area had been sporadic. On one occasion after the Morenos moved into their home, a large group of runners ran through their yard. Occasional bird watchers have gone to Fuller Brook and across to the meadows which lie on the far side of the brook, and the brook has always been an attractive nuisance to the children in the neighborhood.
100. The McIntosh sisters excluded from their conveyance to the United States of America dated May 7, 1980 and recorded in Book 5733, Page 444 (Exhibit No. 52) "any and all rights of way access which the grantors may own in Powder House Road. Retaining those rights which may exist as a means of access to other lands of the grantors which are not included in this conveyance." It is clear therefore that the conveyance to the United States was not intended to landlock the other McIntosh holdings on the southwest side of Fuller Brook. However, it also seems clear that it was not intended to enlarge the category of those who might seek to reach the McIntosh land by using Powder House Road.
101. The subdivision plan bears the notation "the right-ofway known as Powder House Road from the southerly line of lot containing 19,800 square feet (now or formerly owned by Richard N. & Mary P. Lloyd) to the southerly line of Lot 23 shall not be open to the use of vehicular traffic or pedestrian use unless prior approval is obtained from the Planning Board."
102. George Giunta, a registered land surveyor who later did work for the Morenos and the McIntosh Limited Partnership, testified that when the subdivision was laid out, it was possible to drive over Powder House Road from Great Plain Avenue to the bridge with plank decking. The brook was about six feet wide and two to three feet deep with swiftly running water. The planks were six to eight feet wide. Once Winslow Road was cut out, though, use of the northerly part of Powder House Road ceased. In any event the Lloyd fence blocked it.
The plaintiffs have failed to establish, I find and rule, that the easement appurtenant to the McIntosh land has been lost by either abandonment or adverse possession by the owners of the Moreno and Morgan lands. It is true that from 1955 on no use has been made by the McIntosh family and those claiming under it of the appurtenant right of way, for in order to do so a bridge would have been required across Fuller Brook which in turn would require permits both from the Conservation Commission and from the Army Corps of Engineers. However, mere nonuser is insufficient to terminate rights. Moreover, there is nothing in the record to indicate that the McIntosh sisters intended to abandon their rights and never use them again. In fact the deeds in the record are to the contrary. In the same fashion the interference with the rights of the dominant owner in the appurtenant easement was not such as to bar it by adverse possession. Debris indeed was dumped in the location, trees were felled by nature and the whole area was overgrown, but all of these can be removed with very little effort and nothing was done intentionally to block this part of Powder House Road. There were posts and a chain installed by Mr. Winslow at some point in the vicinity of the Moreno property, but I cannot say that it was such to bar the McIntosh use nor is it clear that it was in place for twenty years. The evidence shows that the whole area was used as a nursery and thereafter as a development, that the lots northerly of the Moreno house are not beset by this problem, and that it is unfair of the Town to insist on the pedestrian easement which they are claiming in this proceeding. In an action at law, however, fairness is not necessarily an ingredient.
There are two cases decided by the Supreme Judicial Court in the same time frame where opposite results were reached. In Desotell v. Szczygiel, 338 Mass. 153 (1958) the Court held that abandonment is a question of intent and even the presence of a dump on the right of way was insufficient to require a finding that rights in the way had been lost. In Sendler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965) a bridge-less brook with high banks crossing the way plus a chain link fence for more than thirty-five years terminated the easement. I agree that the Bailey case is similar to that before me, but the differences in the nature of the brook and other relevant factors distinguish the present factual situation. And the fact that to all intents and purposes the way north of locus has been lost doesn't require a finding that the portion in the Moreno land has been abandoned since a public way can be reached. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 432 (1979).
However, the use by the Town for the purposes which it acquired the land would overburden the easement. Firstly, it is clear that whatever rights of way there may be can be used only to reach the former McIntosh property and cannot be used to go beyond it absent any showing that such rights were appurtenant to the Stare land. Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 678-679 (1965), Brassard v. Flynn, 352 Mass. 185 , 190 (1967), Randall v. Grant, 210 Mass. 302 , 304 (1911). Equally a part of the concept of overburdening, however, is the uses to which a way may be put. Commonly this is thought of as the type of vehicle which may traverse the right of way when teams over the years have been replaced by automobiles. If the Town of Needham were to continue the same type of use as had been made by its predecessors in title, there would be no question of overburdening of the easement. The Town, however, intends to open the use of the land acquired for conservation to all its inhabitants which indeed is the fair course as far as land purchased by taxpayers is concerned. However, the private way which is appurtenant to the McIntosh property was never envisioned as being as access route for pedestrians from all over the Town of Needham; clearly the potential for overburdening this residential easement is clear. A general right of way is to be used for reasonable uses of the dominant estate. Hodgkins v. Bianchini, 323 Mass. 169 (1948). The projected use does not merit this description and is unreasonable. Accordingly I find and rule that while the easement granted as appurtenant to the McIntosh lands many years ago has not been lost by abandonment or adverse possession to use the easement for the purposes claimed now by the defendant Town of Needham would overburden the easement. I further find and rule that at best the easement now consists only of a seven to eight foot wide pedestrian way any rights in a wider way by motor vehicles having been lost if in truth they ever existed. I further find and rule that the land of the Town of Needham can be reached from at least one other access point, and that there is no necessity for the use of this way through the yard of the plaintiffs.
[Note 1] All instruments referred to herein as "recorded" documents are recorded in the Norfolk District Registry of Deeds. For the purposes of this Stipulation, all Book and Page references shall refer to said registry. With respect to certain deeds recorded prior to 1900, (copies of which are attached hereto), the parenthetical reference "(L)" appearing with the recorded page reference shall mean the left page of the relevant deed book wherein both the left and right pages of the deed book bear the identical page number.