MARIO ANGENICA and CAMILLE ANGENICA vs. THE TOWN OF MARBLEHEAD, SHERMAN EIDELMAN, JOSEPH R. HALPERIN, LYNN HALPERIN, HENRIETTA S. MILLER, TERRY SHININGER and DEANNE SHININGER.

This is an action brought pursuant to G.L. c.231A, §1. The plaintiffs, Mario and Camille Angenica, are the owners of a parcel of land which abuts Long View Drive in the Town of Marblehead (the Town) which parcel is shown as Lot 19 on Marblehead Assessors Map 21 (see the Appendix which is a composite plan of the Assessors Map and a plan of land which is an exhibit in this case entitled "Plan of Land in Marblehead Owned by Stanley Napierski" prepared by John W. Parsons, surveyor and dated January 5, 1971) and will be referred to hereinafter as Lot 19. The plaintiffs seek a declaration that the entire westerly branch of Long View Drive (the westerly branch) is a public way. [Note 1] In the alternative, the plaintiffs seek a declaration that they have a right of passage over so much of Long View Drive as is necessary to reach their property. The plaintiffs claim that they acquired the right to use the disputed portion of the westerly branch of Long View Drive for access to Lot 19 both by deed and by prescription. Several defendants, including the Town, filed answers denying that the disputed portion of the westerly branch of Long View Drive is a public way. In addition, certain defendants denied that the plaintiffs have any rights to pass over the disputed portion of the westerly branch to reach Lot 19. In her answer, one of the defendants, Henrietta S. Miller, also counterclaimed against the plaintiffs, alleging malicious prosecution, but the counterclaim was dismissed for lack of jurisdiction.

Two days of trial were held at which a stenographer was appointed to record and transcribe the testimony. On the second day of trial, one of the original defendants, Ralph Lazarro, Jr., withdrew his appearance and objection in this case and one of the other original defendants, Marta L. LaRosa, was defaulted for failure to appear and defend at trial. Six witnesses testified, one chalk was used and forty eight exhibits, some with multiple parts, were introduced into evidence and are incorporated herein for the purposes of any appeal.

Based on all the evidence, I find the following to be the material facts:

1. The plaintiffs, Mario and Camille Angenica, are the owners of Lot 19 which is a parcel of land containing approximately 97,000 square feet of land and which has approximately 60.23 feet of frontage on the disputed portion of the westerly branch of Long View Drive. The plaintiffs acquired Lot 19 from Mario Angenica and his father, Anthony Angenica, by deed dated April 22, 1983 and recorded at Book 7094, Page 563. [Note 2] Mario and Anthony Angenica had acquired Lot 19 in 1976 through the death intestate of Tina Angenica, Mario's mother and Anthony's wife. Lot 19 had been conveyed to Tina Angenica by Stanley Napierski by deed dated January 20, 1971 and recorded at Book 5740, page 701. None of the deeds in the chain of title to Lot 19 expressly states that any right to use Long View Drive is conveyed to the grantee.

2. The defendant Henrietta S. Miller is the owner of a parcel of land abutting the disputed portion of the westerly branch which consists of Lot 18 and a small triangular parcel between lot 18 and Long View Drive shown on the Appendix and which will be collectively referred to hereinafter as Lot 18.

3. Lots 18 and 19 were once part of a twenty-eight acre tract of land to the west of Long View Drive which Lillian A. Little conveyed to Napierski by deed dated December 3, 1953 and recorded at Book 4032, Page 519.

4. By deed dated December 31, 1957 and recorded at Book 4431, page 260, Napierski conveyed Lot 18 to George and Shirley Young. In this deed, Lot 18 was bounded easterly by Long View Drive for 100 feet. Napierski also granted to the Youngs a right of way, insofar as he was able to, together with others entitled thereto, over Long View Drive. In this deed, Napierski did not expressly state that he was retaining any right of way over Long View Drive. After this conveyance, the only remaining land which Napierski owned abutting Long View Drive was Lot 19. At the time of the conveyance to the Youngs, Napierski also owned a lot of land to the west of and adjacent to Lot 19 which had approximately 100 feet of frontage on Stratford Road (see lot marked "Baker" on the Appendix). Napierski conveyed this lot to Richard and Sonia Baker by deed dated February 12, 1959 and recorded at Book 4537, Page 530.

5. George and Shirley Young conveyed Lot 18 to Christos A. and Lillian Stathopoulos by deed dated December 23, 1965 and recorded at Book 5329, Book 352. The Stathopouloses conveyed Lot 18 to its present owner, Miller, by deed dated May 14, 1969 and recorded at Book 5608, Page 113.

6. The defendant Town of Marblehead is a municipal corporation located in Essex County and organized and existing under the laws of the Commonwealth of Massachusetts.

7. The defendants Terry and Deanne Shininger are the current owners of a parcel of land abutting the westerly branch [Note 3] shown as Lot 16 on the Appendix. [Note 4] Lot 16 was conveyed to the Shiningers on August 15, 1991 by two of the original defendants, William L. Braman and Eva S. Dewitz and accordingly, the Shiningers were substituted as party defendants in this action on September 16, 1991.

8. The defendants Sherman and Judith A. Eidelman are the owners of a parcel of land abutting the disputed portion of the westerly branch shown as Lot 17 on the Appendix minus that triangular portion of Lot 17 which has heretofore been discussed as having been conveyed to the owners of Lot 16. Lot 17 was conveyed to the Eidelmans by Harvey H. and Ethel M. Newhall by deed dated June 28, 1963 and recorded at Book 5093, Page 276.

9. The defendants Joseph R. and Lynn Halperin are the owners of a parcel of land abutting the disputed portion of the westerly branch shown as Lot 37 on the Appendix. [Note 5] Lot 37 was conveyed to the Halperins by Samuel D. and Belle Robinson by deed dated July 2, 1973 and recorded at Book 5989, page 560.

10. All of the property of the plaintiff and the defendant land owners is located within the boundaries of the Town.

11. Long View Drive and Lots 16, 17 and 37 were once part of a 13.66 acre tract of land which was conveyed by Eben L. Hooper to Margaret B. Day by deed dated August 4, 1922 and recorded at Book 2522, page 359. This tract was bounded on the west by that land of Little which was later conveyed to Napierski. Day subdivided this tract, which subdivision is shown on a plan of land entitled "Tedesco Manor. Marblehead, Mass. Owned by Margaret B. Day" prepared by Shay and Leary Civil, Engineers and dated July 1922. Ocean View Drive [Note 6] is depicted on this plan as being approximately forty feet wide.

12. What is now Lot 37 was conveyed by Day to Frank Bownes by deed dated May 16, 1927 and recorded at Book 2723, Page 439. Bownes then conveyed Lot 37 to Walter R. Tanch by deed dated October 13, 1927 and recorded at Book 2739, Page 567. Bownes conveyed Lot 37 together with all his "right, title and interest in and to that portion of the road shown as Ocean View Drive on said plan, lying southerly, westerly and northerly of the above described lot."

13. Walter Tanch died in 1952 and Lot 37 passed under his will to his wife, Alice L.Tanch. By deed dated September 23, 1955 and recorded at Book 4211, Page 7, Alice Tanch conveyed Lot 37 to Samuel D. and Belle Robinson together with all her right, title and interest in that portion of Ocean View Drive lying southerly, westerly and northerly of Lot 37.

14. Samuel and Belle Robinson gave to Napierski a deed dated October 24, 1957 and recorded at Book 4431, Page 258. By this deed the Robinsons conveyed to Napierski a parcel of land lying westerly of Lot 37 which was bounded and described as follows:

Southwesterly by land of said Napierski, about 184 feet; Northwesterly by a line running at right angles with the first bound, 20 feet; Northeasterly by the center line of the road shown as Ocean View Drive on said plan, 184 feet; Southeasterly by Ocean View Drive on said plan, 20 feet...Granting herewith a right of way (insofar as we are able to grant the same) over that portion of the road shown as Ocean View Drive on said plan, lying Southerly, Westerly and Northerly of [Lot 37].

By this deed the Robinsons conveyed to Napierski a portion of the fee in the westerly twenty feet of Long View Drive as shown on a plan of land entitled "Ocean View Terrace Tedesco Manor in Marblehead, Mass. Belonging to Margaret B. Day" prepared by Shay and Shay, Civil Engineers and dated June 1926 (the 1926 Day plan) as well as a right of way over the westerly branch lying southerly, westerly and northerly of Lot 37. The land of Napierski which abutted Long View Drive to the west consisted of Lots 18 and 19, the only land Napierski owned abutting Long View Drive.

15. By deed dated December 10, 1957 and recorded at Book 4431, Page 259, Harvey and Ethel Newhall, who then owned Lot 17, granted to Napierski "[a] right of way (insofar as we are able to grant the same) together with others entitled over Long View Drive. . .Said right of way to be appurtenant to and for the benefit of land now owned by the grantee herein and marked 'Napierski' on a plan to be recorded herewith." The plan which was recorded with this deed is a plan of land entitled "Plan of Land in Marblehead owned by Stanley Napierski" prepared by John W. Parsons, Surveyor and dated July 8, 1957. On this plan Lot 18 is marked "14,300 S.F." This plan also shows a portion of Lot 19 where it abuts Lot 18 to the north and to the west. The word "Napierski" appears twice on this plan, to the north and west of Lot 18 and on those portions of Lot 19 which are depicted on the plan.

USE OF LONG VIEW DRIVE

16. Long View Drive is a paved road which extends northerly from Tedesco Street and then branches both easterly and westerly. In 1936 and 1937, the Town took certain portions of Long View Drive. The first taking was for the portion of Long View Drive running northerly from Tedesco Street. The second taking was for southerly portions of the westerly and easterly branches. The Town later took the entire easterly branch. As a result of these takings, Long View Drive is a public way from its origin at Tedesco Street to a point on the westerly branch approximately twenty-three feet westerly of the boundary between Lots 15 and 16. The entire easterly branch is also a public way. The Town never laid out or accepted as a public way the remainder of the westerly branch (which begins approximately twenty-three feet to the west of the boundary between Lots 15 and 16 and runs past the remainder of Lot 16 as well as past Lots 17, 18, 19, 20 and 37).

The portion of the westerly branch which was not taken by the Town was paved in 1960. The owners of Lots 17, 18, 20 and 37, not the Town, paid for the paving. Shortly after this portion was paved, two "private way" signs were posted, one near Lot 20 and one near Lot 16. These signs were in place no longer than one year and no such signs have been posted since. The existing pavement between Lot 37 and Lots 18 and 19 is approximately ten to fifteen feet wide.

17. Utility poles are located on the lot lines between Lots 18 and 19, between Lots 19 and 20 and at the corner of Lot 37. [Note 7] Nothing in the record indicates how long any of these poles have been at these locations nor who installed them. Street lights are located in the area adjacent to Lots 37 and 16 as well as near the lot line between Lots 19 and 20. The street light between Lots 19 and 20 has been there since some time in the late 1950s, but no evidence was presented as to how long the other street light has been located near Lots 37 and 16. It is also unclear from the record whether this street light is located on the public portion of Long View Drive or whether it is on that portion of the westerly branch which the Town did not take. In addition, no evidence was presented as to who installed either street light.

A water main located in Long View Drive ends in front of Lot 16 [Note 8] and a "small diameter water service" runs from the end of the water main to Lot 18. In 1958, Napierski installed a sewer pipe which begins at a manhole located just off the paved surface in front of Lot 17 and runs approximately 275 feet northerly up the westerly branch to a point between Lots 18 and 37.

18. The entire westerly branch is plowed by the Town during the winter. In addition, trash is removed from and mail is delivered to the residences on the entire westerly branch. Fire and police vehicles have also occasionally driven over the entire westerly branch. When the Youngs were constructing their house on Lot 18, construction trucks travelled over the westerly branch in order to reach Lot 18.

19. Members of the general public have used and continue to use, both by vehicle and by foot, the entire westerly branch. Beginning some time in the early to mid 1960s, children living in the neighborhood to the west of Lot 19 walked across Lot 19 and then southerly over the remainder of the westerly branch as a short cut to school. It does not appear from the record whether neighborhood children continue to use this shortcut, although it seems unlikely because Lot 19 is presently overgrown with trees and shrubs. In addition, the plaintiffs' children used this short cut almost daily in good weather during the spring and fall from approximately 1967 until 1975 or 1976.

20. In 1957 or 1958, Mario Angenica began working in his parents' construction business. His family developed many of the lots in the Stratford Road/Field Brook Road area to the west of Lot 19 (see Appendix). From 1957 or 1958 until 1971, Angenica [Note 9] observed Napierski, who was the owner of Lot 19 at the time, using the westerly branch for access to Lot 19. Napierski drove northerly on to Long View Drive from Tedesco Street, drove left over the public portion of the westerly branch and then over the disputed portion to Lot 19. From 1957 or 1958 until 1971, Angenica drove over the westerly branch to reach Lot 19 approximately one to two times a month, frequently driving with Napierski and using the aforementioned route from Tedesco Street. Angenica's mother acquired Lot 19 in 1971 with the intention of developing it. After his mother acquired Lot 19, Angenica continued to go to Lot 19 once or twice a month using the disputed portion of the westerly branch for access in order to view the property, to show people who were interested in house lots the land and to bring surveyors to the lot. At some point in time, Angenica drove over the disputed portion of the westerly branch with his parents but it is unclear from the record just when that was.

From 1957 until 1983 Angenica did not seek anyone's permission to use the disputed portion of the westerly branch nor did anyone ever object to his use thereof. The first time Angenica became aware that anyone disputed that he had access to Lot 19 over the disputed portion was in 1983 when the plaintiffs petitioned the Town Selectmen for approval of a proposed road and development on Lot 19. From 1983 until the time of trial, Angenica continued to visit Lot 19 once or twice a month passing over the disputed portion of the westerly branch to reach Lot 19.

21. In the early 1960s, Camille Angenia wheeled her children in baby carriages over the disputed portion of the westerly branch. From 1976 until 1983, Mrs. Angenica drove over the disputed portion of the westerly branch once or twice a month in order to show Lot 19 to prospective purchasers and real estate brokers. No one objected to her driving over the disputed portion on these visits. From 1983, when the dispute as to access over the disputed portion of the westerly branch first arose, until the time of trial, Mrs. Angenica continued to visit Lot 19 once a month or once every two months.

There are three issues before the court in this proceeding: whether the disputed portion of the westerly branch is a public way, whether the plaintiffs have deeded rights to use the disputed portion of the westerly branch for access to Lot 19 and whether the plaintiffs have established that they have acquired a prescriptive easement to use the disputed portion of the westerly branch for access to Lot 19.

I first consider whether the plaintiffs have proven that the disputed portion of the westerly branch is a public way. Whether the disputed portion is a public way is a question of fact, the burden of proof of which is on the plaintiffs. Schulze v. Huntington, 24 Mass. App. Ct. 416 , 417 (1987). A way can become a public way in one of three ways: by the laying out by public authority in the manner prescribed by G.L. c.82, §§1-32, by prescription or, prior to 1846, by dedication and acceptance. Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-4 (1979). The disputed portion of the westerly branch has never been laid out by public authority nor has it ever been dedicated and accepted. Therefore, it can only be a public way is if it has become such by prescription.

In order to establish the creation of a public way by prescription, the plaintiffs must prove that there has been continued adverse use of the way by the public for over twenty years. Sprow v. Boston and Albany Railroad, 163 Mass. 330 , 339 (1895). The plowing of the disputed portion of the westerly branch by the Town as well as its use by mail carriers, trash collectors, fire and police vehicles are all uses of the disputed portion of the westerly branch which I find are permissive rather than adverse because these are uses which are for the benefit of the residents of the disputed portion and which are consistent with the use of the disputed portion of the westerly branch as a private way. See, Gower v. Saugus, 315 Mass. 677 , 682 (1944) (where the Court found the use of a private way by delivery men, gas and water meter readers, electric light pole repairmen, police officers, the fire department, 'pleasure' cars, moving vans, priests and people living on side streets to be the types of uses which would be made of any private way connecting private dwellings with a public road and did not warrant a finding that the use was adverse).

The installation of public services by the town, such as water pipes, sewers and street lights can have the force of an admission by the town that the way has become public. Gower, 315 Mass. at 683. But in Teague v. Boston, 278 Mass. 305 , 308 (1932), the Court held that neither the laying and maintenance by the town of a water main, nor the installation and maintenance of a street light, warranted a finding that the way had become public. In this proceeding, the water main in the westerly branch stops in front of Lot 16 and does not continue the rest of the way up the disputed portion of the westerly branch. No evidence was introduced as to whether the town installed the utility poles and the street lights located on the westerly branch. Finally, the sewer pipe in the disputed portion of the westerly branch servicing Lot 18 was installed by Napierski, not by the Town. Therefore, I rule that the evidence as to any of the aforementioned public services installed in the westerly branch does not have the force of an admission by the Town that the disputed portion of the westerly branch is a public way because it is unclear whether the Town installed any of these services (with the exception of the sewer pipe servicing Lot 18 which the Town clearly did not install), whether they have been in place for the required 20 year period and in some cases, whether they were located on the public or disputed portion of the westerly branch. Gower, 315 Mass. at 683.

Adverse use is a use which is under a claim of right, as distinguished from a use which is assented to or permitted. Sprow, 163 Mass. at 339. The use of a way by the public for the prescriptive period raises no presumption that the use is adverse. Bullukian v. Franklin, 248 Mass. 151 , 155 (1924). To establish an adverse public use, "the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way." Id. at 155. The plaintiff has the burden of proving that the way is not being used permissively and is being used by the general public under a claim of right. Sprow, 163 Mass. at 340-1.

The plaintiffs have not met their burden of proving that the use of the disputed portion of the westerly branch by the members of the general public was under a claim of right and was therefore adverse. The only evidence presented on this issue was that the disputed portion of the westerly branch had been used by members of the general public and by neighborhood school children. The plaintiffs have presented no evidence to distinguish the use by the members of the general public in passing over the disputed portion from the use by those who have a right to travel over the disputed portion of the westerly branch. Accordingly, I rule that the plaintiffs have not established that the disputed portion of the westerly branch has become a public way by prescription and further rule that the disputed portion of the westerly branch is a private way.

The next issue to be decided is whether the plaintiffs have deeded rights to use the disputed portion of the westerly branch for access to Lot 19. The plaintiffs claim that their predecessor in title to Lot 19, Napierski, acquired deeded rights over the entire westerly branch from two sources--from the Robinsons and from the Newhalls. The plaintiffs claim that they own the fee in the westerly twenty feet of the westerly branch as it abuts lot 19 because in 1957, the Robinsons conveyed said fee to Napierski. In addition, the plaintiffs maintain that they have a right of way over the entire westerly branch by virtue of conveyances from the Robinsons and the Newhalls.

The plaintiffs' claim as to the fee in the westerly half of the westerly branch arises from the deed dated October 24, 1957 from the Robinsons to Napierski. Under this deed, Napierski acquired title to the fee in the westerly twenty feet of the westerly branch as shown on the 1926 Day plan as it abutted Lots 18 and 19, which was the only land owned by Napierski abutting the westerly branch. The Robinson deed purports to convey a strip of the westerly branch twenty feet wide and bounded by the land of Napierski for 184 feet. However, the combined frontage of Lots 18 and 19 is only approximately 160.23 feet. Because a monument governs an inconsistent distance given in a deed and the land of Napierski is such a monument, Holmes v. Barrett, 269 Mass. 497 , 499-500 (1929), all the Robinsons could and did convey to Napierski was an approximately 160.23 foot long strip of the westerly twenty feet abutting Lots 18 and 19. Accordingly, I rule that as of October 24, 1957, Napierski had title to a strip of the westerly half of the westerly branch twenty feet wide and approximately 160.23 feet long which abutted Lots 18 and 19.

By deed dated December 31, 1957, Napierski conveyed Lot.18 to the Youngs. In this deed the lot was bounded easterly by the westerly branch for 100 feet, so by virtue of G.L. c.183, §58 [Note 10] the conveyance of Lot. 18 carried with it the fee to the westerly twenty feet of the westerly branch abutting Lot 18 which Napierski had acquired from the Robinsons. Napierski did not expressly reserve any right of way over the fee abutting Lot 18 to benefit Lot 19. The plaintiffs, however, suggest that Napierski impliedly reserved such a right of way.

The plaintiffs have the burden of proving the existence of an implied easement over the fee abutting Lot 18. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Whether Napierski impliedly reserved a right of way over the fee abutting Lot 18 depends upon "a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Perodeau v. O'Connor, 336 Mass. 472 , 474 (1957), quoting from Dale v. Bedal, 305 Mass. 102 , 103 (1940).

Neither the deed to the Youngs nor the attendant circumstances surrounding the conveyance of Lot 18 to the Youngs indicates any intention on the part of Napierski or the Youngs to reserve a right of way for Napierski's benefit. Although necessity alone will not give rise to an implied easement, Dale, 305 Mass. at 103, reasonable necessity can be important in a determination of whether it was the presumed intent of the parties to the deed to create an easement. Boudreau, 29 Mass. App. Ct. at 630. At the time of the conveyance to the Youngs, Napierski still owned the Baker lot which abutted Lot 19 to the west and which had frontage on Stratford Road of approximately 100 feet. Because Lot 19 would not have been landlocked at that time without access over the disputed portion of the westerly branch, there was no necessity for a right of way over the disputed portion for access to Lot 19. Further, no evidence was introduced as to the intent of either Napierski or the Youngs at the time of the conveyance of Lot 18. Therefore, I rule that Napierski did not impliedly reserve a right of way over the fee abutting Lot 18. Accordingly, the plaintiffs as Napierski's successors in title do not have a deeded right of way over the fee abutting Lot 18.

The conveyance to the Youngs left Napierski with title to the fee in the westerly twenty feet of the westerly branch abutting Lot 19. With each successive conveyance of Lot 19, the fee abutting Lot 19 passed to the grantee by operation of G.L. c.183, §58. Therefore, I rule that the plaintiffs own the fee abutting Lot l9.

When the Robinsons conveyed the fee to Napierski, they also granted to Napierski a right of way. The language of this grant is as follows: "Granted herewith a right of way (insofar as we are able to grant the same) over that portion of the road shown as Ocean View Drive on said plan, lying Southerly, Westerly and Northerly of [Lot 37]." The plaintiffs maintain that this grant carried with it the right to use so much of the westerly branch as the Robinsons were entitled use (which was the entire westerly branch) and that Napierski thereby acquired the right to use the entire westerly branch.

However, a grantor cannot create an easement for the benefit of his grantee over the land of another. Knapp v. Reynolds, 326 Mass. 737 , 741 (1951). Therefore, the Robinsons could only convey to Napierski a right of way over the portion of the westerly branch to which they owned the fee. Before the 1957 conveyance of the fee to Napierski, the Robinsons owned both the fee to the easterly half of the disputed portion of the westerly branch as it abutted lot 37 southerly, westerly and northerly and the fee to the westerly half of the disputed portion of the westerly branch as it abutted lots 18 and 19. Therefore, I rule that the right of way which the Robinsons granted Napierski could only be over the easterly half of the disputed portion lying to the south, west and north of lot 37 and not over the entire westerly branch.

The plaintiffs further claim that this right of way was to be appurtenant to Lots 18 and 19. For reasons hereinafter stated, I find that the right of way is appurtenant only to the fee in the westerly branch which Robinson had conveyed to Napierski and is not appurtenant to Lots 18 and 19.

The Robinson deed conveyed a parcel of land definitely described (the fee in the westerly branch) and granted therewith a right of way. No mention of Lots 18 and 19 is made in this deed, except as they were the land of Napierski given as the westerly boundary of the fee conveyed. "It must affirmatively appear that there was an intent to create a servitude as appurtenant to the particular parcel," which in this case the plaintiffs claim to be Lots 18 and 19. Briggs v. Connors, 243 Mass. 1 , 4 (1922). However, there is nothing in the Robinson deed which indicates that this right of way was to be appurtenant to that land of Napierski (Lots 18 and 19) which was mentioned merely as an abuttal to the fee conveyed. See, Briggs, 243 Mass. at 4. Furthermore, "parol evidence is not admissible to prove that the parties intended something different from that which the written language expresses" unless the words used are doubtful or ambiguous. Oldfield v. Smith, 304 Mass. 590 , 600 (1939). Because I find the language of the grant to be neither doubtful nor ambiguous, no extrinsic evidence may be used to determine the probable intent of the parties. Therefore, I rule that the right of way conveyed to Napierski was appurtenant only to the fee in the westerly branch. When Lot 19 was conveyed to Napierski's successors in title and the fee in the westerly branch passed by operation of G.L. c.183, §58, so too did the right of way appurtenant to the fee pass by operation of G.L. c.183, §15. [Note 11] However, the plaintiffs' use of this right of way is limited to use in connection with the fee in the westerly branch. Because "[a] right of way appurtenant to land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant," Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-9 (1965), the plaintiffs cannot use this right of way for the benefit of Lot 19.

Finally, the plaintiffs claim that Napierski acquired a right of way over the entire westerly branch from the Newhalls who conveyed to Napierski a right of way (insofar as they were able to do so) together with others entitled over Long View Drive. However, the only portion of the fee in the westerly branch owned by the Newhalls was that half of the westerly branch which abuts lot 17. Therefore, the Newhalls could not grant Napierski a right of way over the entire westerly branch, but could instead only grant a right of way over the half of the westerly branch which abutted lot 17.

The grant of the right of way in the Newhall deed states "[s]aid right of way to be appurtenant to and for the benefit of land now owned by the grantee herein and marked 'Napierski' on a plan to be recorded herewith." The plan so recorded is the 1957 Parsons plan. On this plan Lot 18 is marked "14,300 S.F." Also on this plan is shown a portion of Lot 19 abutting Lot 18 to the north and to the west, which portion is marked "Napierski" twice. Therefore, the only land of Napierski on the referenced plan which is marked "Napierski" is lot 19.

The defendants contend that the Newhall grant was intended to be for the benefit of lot 18. However, the language of the grant clearly states that the right of way is to be appurtenant to land marked "Napierski" on the referenced plan. Therefore, no extrinsic evidence is admissible to contradict the plain and unambiguous language of the deed. Oldfield, 304 Mass. at 600. Because the plan does not show the full boundaries of the land which is marked "Napierski", extrinsic evidence is admissible to ascertain the boundaries of the land to which the right of way is appurtenant. Therefore, it can be determined that the land marked "Napierski" is lot 19. Accordingly, I rule that the right of way which the Newhalls granted to Napierski is appurtenant to lot 19. By operation of G.L. c.183, §15, this right of way passed to each of Napierski's successors in title and now belongs to the plaintiffs as the owners of lot 19.

The plaintiffs do not claim to have any deeded rights over the southerly half of the disputed portion of the westerly branch which abuts Lot 16 from the boundary between Lots 16 and 17 to the point within Lot 16 twenty-three feet west of the boundary between Lots 16 and 15 [Note 12] and I therefore rule that they have no such deeded rights.

The plaintiffs' deeded rights to use the disputed portion of the westerly branch are as follows: they own the fee to the westerly half of the westerly branch as it abuts lot 19; they have no deeded rights to use the westerly half of the westerly branch abutting lots 18 and 16 (with the exception that they may use the public portion of the westerly branch which abuts Lot 16); they have the deeded right appurtenant to lot 19 to use that half of the westerly branch abutting lot 17; and they have the deeded right to use the easterly half of the westerly branch abutting lot 37 but only as appurtenant to the fee in the westerly branch and not as appurtenant to lot 19. Although this is a confusing assortment of deeded rights, it is not hard to see that the plaintiffs do not have the deeded right to use the entire westerly branch.

The plaintiffs' rights to use those portions of the westerly branch to which they do not have deeded rights and which are not public must consequently rest on their acquisition of any such rights by prescriptive use. In order to establish a prescriptive easement to use the disputed portion of the westerly branch, the plaintiffs must prove that they used the disputed portion of the westerly branch in an uninterrupted, open, notorious and adverse fashion for a twenty year period. Ryan v. Stavros, 348 Mass. 251 , 263 (1964).

From 1957 or 1958 until 1971, Angenica observed Napierski using the disputed portion of the westerly branch for access to lot 19. During those years, Angenica also drove over the disputed portion for access to lot 19 once or twice a month, frequently driving with Napierski. After his mother acquired lot 19 in 1971, Angenica continued to use the disputed portion of the westerly branch to reach lot 19 in ordr to view the property and to show people and surveyors the land which his mother owned. Angenica always used the disputed portion of the westerly branch without objection and without seeking anyone's permission to do so.

The plaintiffs claim that they have the benefit of a prescriptive easement created by Napierski's use of the disputed portion of the westerly branch from 1958 until 1971 and by Angenica's use from 1971 until 1978, when the prescriptive easement vested in Angenica. To establish the requisite period of prescriptive use, several periods of adverse use by successors in title may be tacked. Ryan v. Stavros, 348 Mass. at 264. Napierski's use of the disputed portion from 1958 until 1971 may therefore be included in the prescriptive period.

During his mother's ownership of Lot 19 from 1971 to 1976, Angenica used the disputed portion of the westerly branch once or twice a month to check on the property, to show prospective buyers the land his mother had available and to bring surveyors to the lot. Because Angenica's mother purchased Lot 19 with the idea of developing it, it may be inferred that Angenica's use of the disputed portion of the westerly branch was in connection with his parents' construction business and therefore, his use of the disputed portion was undoubtedly with his mother's authorization. See, e.g., Elwell v. Barbrick, 27 Mass. 272 , 276-7 (1932)(where the Court suggested that possession by a third party, in this case a tenant of the one claiming adverse possession, may be included in the prescriptive period if such possession is with the claimant's authorization or at his direction). Therefore, based upon the familial relationship and Angenica's use of the disputed portion of the westerly branch in connection with his parents' construction business from 1971 to 1976, I rule that Angenica's use from 1971 until 1976 may be imputed to his mother and included in the prescriptive period. Accordingly, Napierski's use of the disputed portion of the westerly branch for access to Lot 19 from 1958 until 1971, Angenica's use on his mother's behalf from 1971 until 1976 and Angenica's use as the owner of Lot 19 from 1976 until 1978 and continuing to the time of trial may be tacked, satisfying the twenty year prescriptive period.

That the use of the disputed portion of the westerly branch which is relied upon by the plaintiffs in creating the prescriptive easement was only once or twice a month does not require a finding that the use was intermittent or occasional and therefore not continuous. Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961). A determination of continuous use is warranted when a pattern of regular use is established. Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985). See also Towle v. Trustees of Donations, 259 Mass. 256 , 258-9 (1927) (where the Court found that the occasional use by the plaintiff of a way for hauling sand gave rise to a limited right of way). The plaintiffs have established that Angenica regularly used the disputed portion of the westerly branch once or twice a month to visit lot 19. Accordingly, as of 1978, Angenica had acquired a prescriptive easement to use the disputed portion of the westerly branch for access to lot 19. When lot 19 was conveyed to Mr. and Mrs. Angenica in 1983, the acquired prescriptive easement passed by operation of G.L. c.183, §15. Therefore, I further rule that Mrs. Angenica too has the benefit of this easement over the disputed portion of the westerly branch to reach lot 19.

The plaintiffs' easement to use the disputed portion is limited to the westerly branch as it presently exists, and not the forty foot wide westerly branch shown on plans, because the extent of an easement by prescription is fixed by the use through which it was created. Lawless v. Trumbull, 343 Mass. 561 , 562-3 (1962). Because the plaintiffs have not used the full forty foot width, they cannot have acquired the prescriptive easement to do so.

In conclusion, I rule that the disputed portion of the westerly branch is a private way, that the plaintiffs do not have deeded rights to use the entire westerly branch and that the plaintiffs have acquired a prescriptive easement to use the disputed portion of the westerly branch as it currently exists for access to lot 19.

The plaintiffs' and defendants' requests for findings of fact and rulings of law are denied insofar as I have made my own findings of fact and rulings of law which I deem most pertinent hereto.

Judgment accordingly.

exhibit 1