In a Memorandum and Order Under Rule 1:28, See 32 Mass. Appeals Court 1116 (1992) the Appeals Court remanded this action to the trial court for additional findings on the question urged by the Shalhoubs on appeal (and also in their posttrial brief [A, 128]) [Note 1] and which the Appeals Court wrote was stated by the trial judge to be an issue of the case (A. 845-846) [Note 1], namely, whether the overburdening of the easement continued for such a period and under such circumstances as to give the Shalhoubs prescriptive rights to use Cheriton Road to obtain access to their Washington street property.
The Court further decreed: "The trial judge is to make such additional rulings, if any, as she deems appropriate based on her additional findings. In her discretion she shall determine if any hearing, evidentiary or otherwise, is to be held."
I decided that no additional evidentiary hearing was necessary, and counsel for all parties agreed. I have reviewed the transcripts of the previous five days of trial to determine whether the plaintiffs had established a prescriptive right to use Cheriton Road for access to the commercially zoned property on Washington Street, it having been determined in the original trial that otherwise the use of the private way for access to land outside the subdivision served by Cheriton Road overburdened the easement appurtenant to such of the plaintiffs' lands as abutted Cheriton Road. On all the evidence I find and rule as follows:
1) The plaintiffs obtained a variance from the Board of Appeals of the City of Boston (the "ZBA") to use 229 square feet of their residential property for the erection of a building in which to conduct the rug cleaning business. (Exhibit No. 11) It is unclear where the 229 square feet was located, but it clearly did not affect the lots abutting Cheriton Road.
2) The decision by the ZBA was dated August 6, 1954 so that is the earliest date on which the plaintiffs might have made commercial use of Cheriton Road to reach their nonsubdivision lots. However, the requirement of constructing the building in which the operations were conducted after the variance had been granted necessarily would make the commencement date of the prescriptive period later than August 7, 1954. Mr. Shalhoub's son, an attorney testified that such use began in 1959. Access from the rear primarily was by large eighteen foot U-Haul trucks which the plaintiffs rented to deliver large orders of rugs needing attention from Harvard, Radcliffe and Wellesley Colleges. When the latter business no longer was sought by Mr. Shalhoub, use of the large trucks ceased in 1977. Trucks delivering padding and sometimes customers dropping off rugs also used the back entrance.
3) Mr. Shalhoub also had a green truck which was larger than a panel truck but smaller (a half-ton truck) than the U-Haul vehicle. When driving the "green monster" he frequntly entered his property from Washington street, but he might exit onto Cheriton Road; at other times he reversed his pattern. After 1977, however, he apparently used the Washington Street access only.
4) Mr. George Shalhoub testified that he used Cheriton Road for access as early as 1954, but his memory as revealed by his testimony was not alsways reliable. On the commencement date I accept his son's testimony.
It seems clear from the record that Mr. Shalhoub used the Cheriton Road access to reach his commercial property, and that this practice ceased in 1977, but what is not clear is the date on which this use commenced. The starting point is critical in determining whether the requirements for acquiring a prescriptive easement have been met and on this record the plaintiffs have failed. Even if the plaintiffs do not have a prescriptive right to use Cheriton Road as appurtenant to their non subdivision land, none of the Cheriton Road property owners appear to object to Mr. Shalhoub's commercial use, and the defendant association has always offered to restore the driveway if Mr. Shalhoub would explain his requirements. Accordingly I find and rule that if Mr. Shalhoub so requests in writing, Cheriton Grove Corporation is to clear the underbrush and level the area, removing any fill dumped on the defendants' behalf, on the Shalhoub Cheriton Road lots where access formerly was had by Mr. Shalhoub. There is, however, no obligation on the part of the Corporation to pave the driveway or to do any additional work in Cheriton Road other than as set out in the decision.
Accordingly, it is
ADJUDGED and ORDERED that while the plaintiffs have not established a prescriptive right to use Cheriton Road to reach their land outside the subdivision within which the road is located, the abutters do not object to the overloading of the easement; and it is also
ADJUDGED and ORDERED that the driveway access to the plaintiffs' land may be restored to the extent set forth above.
[Note 1] The references are to the Appendix to the Record on Appeal, now destroyed and deciphered with some difficulty.