EDWARD E. COOK and EVELYN R. COOK vs. CHRISTOPHER LOMBARD and KAREN LOMBARD.

Plaintiffs seek a declaration under G. L. c. 231A that their property on Black Cat Road, Plymouth benefits from an easement over a roadway (the "Road to Briggs' Bog"), to the extent located on Defendants' abutting property, for all purposes for which ways are commonly used in the Town of Plymouth (the "Town").

On March 27, 1991 the Court granted Defendants a preliminary injunction against Plaintiffs' use of the Road to Briggs' Bog, subject to the continued availability to Plaintiffs of another access which Plaintiffs have been using.

On June 4, 1991, Plaintiffs' motion for Summary Judgment was denied.

A trial was held on June 4 and June 6, 1991. A stenographer was appointed and recorded the testimony. One hundred thirty-one Exhibits (some with multiple parts) were introduced into evidence (these are numbered 1 through 132, #123 not being used); all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Joseph Edward Webby, Jr., a surveyor, who prepared Exhibits 129 and 130; Marilyn DuPuis, a title examiner; Lawrence F. Schofield, Chief Counsel for New England, Lawyers Title Insurance Corporation; both Defendants; and Lois Pierson, Defendants' neighbor to the east, all for Defendants; and Frederick Cox, a former resident of Plaintiffs' residence; both Plaintiffs; and Deborah Cook, Plaintiffs' daughter.

I find and rule as follows:

1. Black Cat Road is a public way in the Town leading westerly off Watercourse Road at its junction with Billington Street and thence leading generally by the southerly side of the Billington Sea.

2. Plaintiffs, husband and wife, live at 283 Black Cat Road ("Plaintiffs' Property"). Defendants, husband and wife, live at the adjoining property, 287 Black cat Road ("Defendants' Property").

3. Plaintiffs acquired Plaintiffs' Property by deed recorded March 19, 1980 at Plymouth County Registry of Deeds (all recording references in this Decision are to that Registry) at Book 4806 Page 48. Plaintiffs' Property is shown as Lot 34 on Plot 90 of the Plymouth Assessors Maps ("Plot 90").

4. Defendant Christopher Lombard acquired Defendants' Property with Cheryl Young by deed recorded in May 1979 at Book 4661 Page 94. They conveyed Defendants' Property to Mr. Lombard by deed recorded October 15, 1979 at Book 4736 Page 461. By deed recorded October 14, 1986 at Book 7190 Page 121 he conveyed Defendants' Property to himself and Mrs. Lombard. Defendants' Property is shown as Lot 33 on Plot 90.

5. By deed recorded May 10, 1984 at Book 5637, Page 316 Defendants acquired Lots 30 and 31 on Plot 90. They have incorporated that land into their front yard. In their Answers to Admissions, they admit that they have placed loam on the Road to Briggs' Bog, planted it over with grass, shrubs, bushes, trees and the like and parked trucks and other vehicles on it.

6. The Town took title to the northerly portion of Lot 29 on Plot 90 by Treasurer's Deed dated December 29, 1965 recorded at Book 3268, Page 285. The northerly portion is the portion northerly of the Road to Briggs' Bog.

7. The properties involved in this action are shown on Exhibit 129 (originally Chalk 3) a "Plan of Land in Plymouth, Mass. Prepared for Town of Plymouth" dated March 1, 1991 by Vautrinot & Webby Co., Engineers and Surveyors. I have attached a copy of a portion of that to this Decision after adding some notations. The Road to Briggs' Bog is labelled as such on the attached plan.

8. Although Plaintiffs have an address on Black Cat Road, they have no frontage on it. Their frontage is on the Road to Briggs' Bog. The deed into Plaintiffs has a description which commences: "Beginning at a stake in line of a road leading to the screen house of the George R. Briggs cranberry bog in line of land of Eugene Adams" et ux. The northeasterly bound is stated as "By said road to said screen house". That road is the Road to Briggs' Bog. As shown on the attached plan, it leads easterly by a gentle curve to Black Cat Road.

9. Plaintiffs' description places Plaintiffs' Property on the Road to Briggs' Bog; there is no gap as shown on the attached plan and Defendants have stipulated (Transcript Day I, Pages 51-52) that Plaintiffs' rights, if they have any, are not blocked by the gap shown on the plan. Defendants admit that at the time Plaintiffs acquired Plaintiffs' Property, Plaintiffs were entitled to use the Road to Briggs' Bog for all purposes for which ways are customarily used in the Town (Answer 17 to Plaintiffs' Request for Admissions and stipulation by Defendants' counsel at tria1, Transcript Day I, Pages 29 and 59). Defendants' case is that Plaintiffs have abandoned the Road to Briggs' Bog or are guilty of laches or that, those contentions failing, Defendants have a right to relocate Plaintiffs' easement. Also, Defendants dispute the width of the Road to Briggs' Bog.

10. The "Existing Drive" is a driveway shown on the attached plan leading from Black Cat Road onto Lot 29 and then in part onto Lot 30 and thence leading across the Road to Briggs' Bog, giving alternative access to Black Cat Road from Plaintiffs' Property. The Existing Drive is an unpaved area perhaps ten feet wide, really not more than a track formed by passage of vehicles. To the extent it passes over Lot 29, its use is at the sufferance of the Town, and none of the parties has any right to use of the Town land for that purpose.

11. The Road to Briggs' Bog was a gravel road having a hard enough surface so that it could be used year round. It was approximately ten feet wide. Plaintiffs used it as their principal, almost exclusive, access to Black Cat Road from the time they moved into the Plaintiffs' Property until 1986.

12. On May 18, 1984, Plaintiffs filed a Petition with the Town for the acquisition of Lot 29 (Exhibit 23), which at the time was thought to include the land immediately to the west of Plaintiffs' Property.

13. Later in 1984, Mrs. Lombard told Mrs. Cook of the Lombards' desire to provide the Cooks with access over the Existing Drive.

14. On April 8, 1985, the Plymouth Annual Town Meeting voted to authorize the Board of Selectmen to convey Lot 29 to Plaintiffs (Exhibit 45).

15. On February 6, 1986, in connection with a refinancing of Plaintiffs' Property, a Mortgage Inspection Plan was done for Plaintiffs, which showed portions of both the Road to Briggs' Bog and the Existing Drive (Exhibit 24).

16. In the Fall of 1985 Defendants commenced clearing the area in front of their house and in the Spring of 1986 Defendants deposited a large loam pile on the location of the Road to Briggs' Bog, blocking it. They used that loam to establish a lawn in front of their house, covering the location of the Road to Briggs' Bog. Shrubs and trees were planted in the location of the Road to Briggs' Bog in 1987 and later a small stone wall was constructed across it.

17. After the loaming, seeding, and planting of the area in front of Defendants' Property in the Spring and Summer of 1986, and for nearly five years thereafter, Plaintiffs used the Existing Drive as their principal means of access to their home. Mr. Cook may have occasionally driven over the Road to Briggs' Bogs best he could, but I attach no significance to those drive-throughs.

18. In 1987, Mrs. Cook told Mrs. Lombard that the Cooks had not yet acquired Lot 29 from the Town. In 1988, Mrs. Cook told Mrs. Lombard that the Cooks had still not acquired Lot 29 from the Town but that the Cooks still wanted to acquire Lot 29. There was never any written agreement between the parties as to Plaintiffs' use of the Existing Drive or as to any waiver or abandonment by Plaintiffs as to the Road to Briggs' Bog.

19. In January 1990, the Cooks told Mrs. Lombard that they still had not acquired Lot 29. Mrs. Lombard then told the Cooks that the Lombards would file a Petition of their own with the Town for the acquisition of Lot 29, in order to legalize the use by the Cooks of the Existing Drive.

20. On February 1, 1990, the Lombards submitted a Petition with the Town for the purpose of acquiring Lot 29, which Petition resulted in Article 14 of the Warrant for the next 1990 Special Town Meeting (Exhibit 57).

21. On March 16, 1990, the Land Use Committee of the Town voted to recommend that no action be taken on Article 14 by the Special Town Meeting, in order to afford the Cooks the opportunity to be heard on the matter, due to the April 8, 1985 Town Meeting vote (Exhibit 58).

22. On March 1, 1991, following the commencement of this action, the Lombards again submitted a Petition to the Town to acquire Lot 29.

23. On March 2, 1991, the Cooks began driving over the Road to Briggs' Bog on Defendants' Property, even though the Existing Drive was unobstructed. They intermittently repeated the driving until enjoined on March 27, 1991. The Lombards responded by making complaints to the Plymouth Police Department.

24. On April 6, 1991, the Special Town Meeting voted to authorize the Board of Selectmen to sell and convey all or a portion of all of the Town's right, title and interest in Lot 29, in or within six months therefrom, for a sum and upon conditions to be determined by the Board of Selectmen (Exhibit 118).

25. The Lombards are willing at their expense to commence and complete administration proceedings by George C. Smith with respect to the Estate of Helen Isabelle Amado, in order to make their title to Lot 30 clear, record, and marketable.

26. The Lombards are willing at their expense to have their surveyor prepare a survey in recordable form subdividing the driveway portions and non-driveway portions of Lots 29 and 30, respectively, based upon Exhibit 130.

27. Assuming that the Town establishes minimum bid prices for Lot 29A and for Lot 29B, in accordance with the Uniform Procurement Act (G. L. c. 30B), the Lombards are willing at their expense to bid in good faith on the driveway portion of Lot 29 on behalf of the Cooks, and are further willing not to bid on behalf of themselves on either the driveway or non-driveway portions.

28. Assuming that the Lombards are the high bidders on the driveway portion of Lot 29 on behalf of the Cooks, the Lombards are willing at their expense to acquire that portion on behalf of the Cooks, and are further willing to convey the driveway portion of Lot 30 to the Cooks for the sum of One Dollar, if the Cooks and their mortgagees release all of their right, title, and interest in the Road to Briggs' Bog.

29. The Lombards are willing at their expense to seek any required relief from the Plymouth Zoning Board of Appeals, in the event that the resulting configuration of either their property or the Cooks' property is deemed to become non-conforming or, if presently non-conforming, is deemed to become more non-conforming.

30. The Cooks do not wish to rely only on the Existing Drive for their access. They believe Defendants cannot assure good title and zoning conformity.

31. Mr. Lombard testified that Mr. Cook agreed to loam being spread over the Road to Briggs' Bog, but Mr. Cook flatly denies that and countered with testimony that he told Mr. Lombard he couldn't close the Road to Briggs' Bog. I find that Plaintiffs did not intend to abandon their easement over the Road to Briggs' Bog. They were content to use the Existing Drive when the Road to Briggs' Bog became blocked and while first they, and later Defendants, were trying to regularize their use of the Existing Way but those facts, and their non-use of the Road to Briggs' Bog, do not add up to an abandonment. If they had had a clear right to use the Existing Drive, we might have a different result, but they did not. Defendants had the burden of persuasion on the issue of abandonment and did not meet it.

32. Plaintiffs are not guilty of laches. Loam was dropped on the Road to Briggs' Bog in the Spring or Summer of 1986 and then Plaintiffs stopped traveling over it. Mr. Cook may have driven over it between 1986 and 1990, but not as a regular practice. Plaintiffs chose to avoid confrontation; they attempted, if fitfully, to obtain other legitimate access to their property by means of purchase of Lot 29. The Town bargained with Plaintiffs to convey to them 17,400 square feet of land; title examination showed that the Town could only claim title to 5,000 square feet of land. Plaintiffs were advised by former counsel that Land Court action would be necessary to obtain good title from the Town, and that the expense of a "linen" could be $2,000.00. Defendants can justifiably state that Plaintiffs did not aggressively pursue the Town land and were content to acquiesce in an easier status quo (the Existing Drive). But it was not incumbent on Plaintiffs to secure the Existing Drive; Defendants were the ones who benefitted most from the change. Plaintiffs have not unreasonably delayed bringing this action. Further, there has been no testimony that Defendants have suffered any real detriment as a result of any delay by Plaintiffs in bringing this action. The Supreme Judicial Court, in Shea v. Shea, 296 Mass. 143 (1936) stated (p. 149) that "It is not mere delay in bringing of a suit but delay inducing a change of position of the defendant or injuriously affecting his legal rights that constitutes laches." The fat was in the fire in this action when Defendants established their lawn. No delay of Plaintiffs induced them to do that or to erect a fence in 1990. Perhaps the earlier erection of a stone wall was motivated in part by the hope that Plaintiffs had given up their rights but even so, the detriment to Defendants is minor. Here again, the burden was on Defendants and they did not meet it.

33. Defendants' last position is that they can relocate Plaintiffs' easement, so that it applies to the Existing Drive, provided that is consistent with Plaintiffs' easement. Defendants cite various cases having general language setting forth the relative rights of holders of easements and of the owners of the servient estates. They cite Pratt v. Sanger, 70 Mass. 84 (1855) for the proposition that easement holders do not have a right to a prescribed location. However, Pratt specifically refers to easements "not in a way actually existing at the time of the grant, nor . . . definitely fixed by the deed".

34. The Road to Briggs' Bog was fixed when Plaintiffs acquired Plaintiffs' Property. Plaintiffs rights arose by estoppel, by virtue of the description bounding on the Road to Briggs' Bog. Do Defendants have the right to relocate? The Appeals Court has suggested that they might. I refer to Carls v. Lexington Federal Savings and Loan Association, 11 Mass. App. Ct. (1980), but more particularly Lowell v. Piper, 31 Mass. App. Ct. 225 (1991) in which the Court allowed the relocation of rights as to a penstock even though the location of the rights was fixed, by reference to "their present locations as shown on" a plan. The relocation was for the convenience of the servient owner, who wished to develop his land.

35. In Lowell the easement holder contended that no matter how reasonable the servient owner's proposals for relocation might be, the holder could insist on the original location, since that was fixed by reference to a plan. The Court disagreed and remanded for further findings of fact on the proposed changes and their effect on the rights of the easement holder. To paraphrase, the rule is that Defendants may not use Defendants' Property "in a way that is inconsistent with (Plaintiffs' rights) or in a way that would lead to a material increase in the cost or inconvenience to (Plaintiffs') exercise of their rights" (p. 231).

36. Defendants wish to relocate Plaintiffs' easement to the Existing Drive. That would involve the acquisition from the Town of so much of Lot 29 as is involved in the Existing Drive, an establishment of rights to Plaintiffs in that area and in the driveway portion of Lot 30 (which Defendants propose to do by transferring title to them), taking steps to clear a title problem as to Lot 30 and taking any steps necessary to deal with any zoning problems which the refiguration might occasion.

37. It is unreasonable to require Plaintiffs to accept that package. Defendants do not own Lot 29 and have no assurance of getting it. There are title and zoning problems, or at least questions, as to both Lots 29 and 30. If Plaintiffs and Defendants were co-operating, Plaintiffs might well want to accept Defendants' proposal, but they are at odds.

38. The route suggested by Defendants may make more sense and Defendants' clearly prefer it. Use of the Road to Briggs' Bog will mean disturbing an area wich Defendants have incorporated in their front yard. But are all the equities on Defendants' side? Recall that Defendants originally owned only Lot 33 and acquired it with the Road to Briggs' Bog in place. Plaintiffs suggest that Defendants acquired lots 30 and 31 with the intent to block off the Road to Briggs' Bog. I do not decide that, but I do find that if Defendants wished to relocate the road merely for their own convenience, they should have presented Plaintiffs a cleaner, problem-free alternative.

39. However, Defendants may wish to establish a slightly different route for the Road to Briggs' Bog within Lot 31 to accommodate existing conditions, and that is reasonable. If Defendants wish that, they should so indicate by writing filed with the Court within thirty days of the filing of this Decision, in which event I shall retain jurisdiction to resolve any disputes that may arise as to the alternative which Defendants may propose.

40. If Defendants do not wish to reroute, and in any event while they are doing so, Plaintiffs have the right to use the original location of the Road to Briggs' Bog, as delineated on Exhibit 129, for all purposes for which ways are commonly used in the Town, provided, however, that if that route would conflict with the stone wall now in place, Plaintiffs' easement will bend around it to the south.

Judgment accordingly.

exhibit 1