WILLIAM H. VALDAY, and KRISTINE K. VALDAY, TRUSTEES OF VALDAY REALTY TRUST vs. SHEPARD D. RAINIE and ELLEN B. RAINIE.

The plaintiffs William H. Valday and Kristine K. Valday, Trustees of the Valday Realty Trust seek a declaration of their rights in a right of way twenty feet in width running from Spring Lane in Canton in the County of Norfolk across land of Shepard D. Rainie and Ellen B. Rainie, the defendants, to land of the plaintiffs. The defendants contend that the rights of the plaintiffs in the right of way have been terminated; they further claim that the plaintiffs have only a license to use a sewer connection running to Chapman Street by which both the plaintiffs and the defendants have tied into the public sewer and seek by counterclaim to have this Court find that the license to use the sewer connection has been revoked.

A trial was held at the Land Court on September 16 and 30, 1991 at which a stenographer was appointed to record and transcribe the testimony. The plaintiffs introduced the material instruments of record and rested, subject to rebuttal. Testifying at the trial for the defendants were Stephen D. Rainie, Ellen Rainie, Joanne Anton and Robert Wellington and Therese Dorr, Paul Dorr and Shepard Rainie, Mrs. Dorr and David Packer as rebuttal witnesses. The plaintiffs called as rebuttal witnesses Joseph J. Campo, superintendent of public works in the Town of Canton, James Mungle, a predecessor in title of the plaintiffs, Sarah Mungle, his wife, Mark V. Whidden, a friend of the Valday children, William H. Valday, one of the plaintiffs, William D. Valday, his son and Kristine Valday, the other plaintiff. A total of twenty exhibits, some with multiple parts and three chalks were introduced into evidence, all of which are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows:

1. The common owner of the properties now owned by the plaintiffs and the defendants created the right of way by grant in 1958 by a deed from Janet D. Garside to Alan W. Smith et al recorded with Norfolk Deeds in Book 3685, Page 158 (Exhibit No. 2). In this deed the grantor reserved for herself her heirs and assigns for the benefit of her remaining land "a right of way twenty (20) feet in width adjoining the northerly boundary of the land hereby conveyed from Spring Lane to Lot 2 as shown on said plan, said right of way to be for all purposes for which a right of way is normally used for pedestrian and vehicular traffic".

2. The plan to which reference is made in the deed is entitled "Plan of Land in Canton, Mass." dated November 4, 1958 by Norwood Engineering Co., Inc. and recorded with the above mentioned Deeds. Land conveyed to the Smiths, predecessors in title of the defendants, is shown as Lot 1 on the plan and the land of the plaintiffs, shown as Lot 2 on the plan, the property for the benefit of which the right of way was reserved. Lot 1 is numbered 233 Chapman Street and Lot 2, 215 Chapman Street.

3. Janet D. Garside thereafter conveyed to James T. Mungle and Sara A. Tardanico, as joint tenants, Lot 2, by deed dated April 22, 1959 and recorded in Book 3720, Page 306 (Exhibit No. 4). The deed to James T. Mungle et al included this paragraph:

Together with a right of way twenty (20) feet in width over the northerly portion of Lot 1 as shown on said plan from Spring Lane to Lot 2, said right of way to be used for all purposes for which a right of way is normally used for pedestrian and vehicular traffic.

4. James T. Mungle and his wife Sarah (formerly known as Sara A. Tardanico) conveyed Lot 2 to Dr. Michael J. O'Sullivan, Jr. and Mary A. O'Sullivan by deed dated October 8, 1964 and recorded in Book 4202, Page 496 (Exhibit No. 5), and the grantees in said deed conveyed it to the plaintiffs by deed dated October 6, 1967 and recorded in Book 4465, Page 730 (Exhibit No. 6). Subsequently Mr. and Mrs. Valday conveyed the property to themselves as trustees under a declaration of trust entitled "The Valday Realty Trust" dated September 30, 1987 by deed dated April 8, 1988 and recorded in Book 5506, Page 77 (Exhibit No. 7). In the meantime Alan W. Smith conveyed Lot 1 to the defendants by deed dated August 24, 1978, Mrs. Smith having died in 1973. The deed made express reference to the right of way to which it was subject.

5. There always has been, at least during the period before the Court, a large oak tree on the property adjoining the intersection of the right of way with Spring Lane and owned by a third party. At the time the right of way was created there was a cement floor remaining from a garage no longer extant situated within the right of way which presumably faced Spring Lane. The Valday property consisted only of a grape arbor and flowering shrubs when it was purchased by Mr. Mungle and his future wife. At that time it was possible to drive from Spring Lane to Lot 2, and this was the preferable route since Lot 2 was about three to four feet lower than Chapman Street. The right of way was used by the cement trucks which were involved in the building of the plaintiffs' home and other vendors who came to the property. Mr. Mungle would drive from Spring Street to Lot 2, and when he wished to leave the property he would back onto the right of way. During the period of his ownership (with his wife) he always used the right of way. In about 1960 a driveway was constructed from Chapman Street so that there were two methods of access to Lot 2. There were tire tracks running from Spring Lane to Lot 2 with grass in the middle. Mrs. Mungle also used the right of way when she took walks with the baby carriage, because the grade on Chapman Street made it difficult to push the carriage.

6. Over the years the tenants in what is now the Rainie home and the Rainies have made various uses of the right of way. Most of these uses have been consistent with the rights of the plaintiffs, and into this class fall the gardens of Joanne Anton, a Smith tenant, the defendant Shepard Rainie's present garden, the brush and trees which apparently have been grown naturally without being planted and the pre-existing briar patch removed by Mr. Rainie for a garden. None of these encroachments permanently prevent use of the way and can be removed. Mr. Rainie erected a child's playhouse within the right of way in 1987 and a dog pen in 1982 or 1983. The plaintiff William Valday objected to the latter, and the defendant suggested it was not a permanent obstruction. He also erected a small picket fence sometime in the time frame near the common boundary line. None of these more permanent obstructions have existed for the required twenty year period.

7. The plaintiffs formerly had a dog pen also near the boundary line but some fifteen to nineteen feet away from it which subsequently was moved, and the fence increased to avoid any incident with or harm to the defendants' children. However, there is no evidence that the dog pen blocked the terminus of the right of way or evidenced any irrevocable decision by the plaintiffs no longer to use the right of way.

8. After the defendants constructed the dog pen Mr. Valday wrote a letter dated October 13, 1987 which purportedly granted Mr. Rainie permission to use the twenty foot wide right of way (Exhibit No. 12).

9. In 1980 the Town of Canton installed a sewer in Chapman Street and may have offered some inducement to abutters to tie into it. A six inch pipe was laid from the sewer in Chapman Street to a point 63.5 feet distant northeasterly on a diagonal from the southeasterly corner of the defendants' home, and each of the parties tied into the sewer at this manhole. It appears that the connection in the street is to a manhole in front of the plaintiffs' home at 215 Chapman Street. The total cost to the defendants appears to have been $2,044 and to the plaintiffs $2,268 for the installation of the sewer and the elimination from service of the septic tanks. The cost of the connection was shared so that each party paid one-half thereof and separately paid the cost of the coupling, the manhole and the pumping and filling of their septic tanks as well as, of course, the betterment for the installation of the sewer in the street based doubtless on so much per front foot (Exhibits Nos. 13, 14 and 15).

10. After the incident of the dog pen William H. Valday wrote to Mr. Rainie granting him permission to use the twenty foot right of way by letter dated October 13, 1987. This well known incident appeared to follow after the letter. This law suit was filed in January of 1989.

11. The plaintiffs clearly have a record right of way as appurtenant to their premises shown as Lot 2 on the recorded plan and now known as and numbered 215 Chapman Street to use the twenty foot wide right of way which runs easterly from Spring Lane across the northerly twenty feet of the defendants' property. Inasmuch as this is a record right of way it can be lost only by grant, release, abandonment, estoppel or prescription. Delconte v. Salloum, 336 Mass. 184 , 188 (1957); Emery v. Crowley, 371 Mass. 489 , 495 (1976). The burden rests on the defendants to establish by a fair preponderance of the evidence that the right of way has been extinguished. It is clear that no grant, release or estoppel has been shown so as in most cases of this nature, the two elements to be determined are abandonment or prescription. Abandonment ordinarily is a question of fact and non-use alone does not produce an abandonment no matter how long continued. There must be an intention to abandon which customarily is evidenced by physical facts (See Delconte v. Salloum, infra). In Desotell v. Szczygiel, 338 Mass. 153 (1958) the Supreme Judicial 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 have been lost. See Sendler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). There is nothing in the factual situation before me of such a permanent nature that it shows an intent by the plaintiffs to abandon their rights in the way.

Similarly the defendants have only owned the property at 233 Chapman Street since 1978, and clearly the prescriptive period to eliminate the plaintiffs' rights has not run. There were a few activities prior to the Rainies' acquisition of Lot 1 within the right of way, but they were of a more minor nature such as the maintenance of a garden which clearly does not prevent a car from driving through if anyone had been so desirous over the years. There have been some compost piles created behind the Rainies' garage and within the right of way, but those again are of such a temporary nature and so easily removed that they do not constitute a permanent barrier to use. They would not constitute such possession adverse to the plaintiffs' recorded rights as to cut off the easement. There was conflicting evidence about a clothesline and where it was located; it was not established to my satisfaction that it was within the way.

On all the evidence therefore I find and rule that the plaintiffs having a record right of way have not lost such rights by abandonment or prescription exercised by the defendants and those under whom they claim or in any other way.

So far as the installation of the sewer connection pipe and its use by both parties, the cost of which was equally shared, an interesting legal question is presented. The usual license is revocable, but a license coupled with an interest as is before me in the present case presents a different question. See Baseball Publishing Co. v. Bruton, 302 Mass. 54 (1938). Each of the parties has expended money in having the Town install the sewer connection and link both properties to the sewer now in the street. Some portion of the pipes accomplishing this purpose seem to be located on lands of each of the parties. It is clear that it was the expectation of both the plaintiffs and the defendants that the arrangement would be permanent, and the doctrine of estoppel militates against the revocability of the license under the circumstances herein. So long as the present pipe is serviceable and adequately providing for the two properties, the defendants may not revoke the license granted to the plaintiffs if we assume for the purposes of this case that the pipe as Mr. Valday seems to believe is located on the land of the defendants.

Both the plaintiffs and the defendants have filed requests for findings of fact and the plaintiffs also asked for certain rulings of law. However, I have made my own findings of fact and have discussed the applicable law at some length. Accordingly I take no action on the requests made by the parties.

Judgment accordingly.