CHARLES N. TACKE [Note 1] and MURIEL A. TACKE v. RUTH L. COOLING.

Muriel A. Tacke, the plaintiff brought this Complaint for a Declaratory Judgment to determine the extent of the defendant's rights, as owner of Lot 2 on Land Court Subdivision Plan No. 16290 B (Exhibit No. 2) in Chatham in the County of Barnstable in the Driveway approximately shown on said plan. More specifically the plaintiff as owner of Lot 1 on said plan contends that the defendant can neither park on Lot 1 nor use the protuberance in the driveway as a turnaround. The defendant has answered and counterclaimed. She denies other than in one instance parking on the plaintiff's land but alleges that the right to use the driveway includes the right to use the turnaround shown on said plan. She prays the court to locate the driveway and turnaround on the ground.

A trial held at the Land Court on August 26, 1992 at which a stenographer was appointed to record and transcribe the testimony. A view was taken by the Court in the presence of counsel on September 4, 1992. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial the plaintiff rested after the introduction by the parties of Exhibits Nos. 1 to 12 subject to her right of rebuttal. The defendant then called as witnesses Robert O. Cooling, the defendant's husband, Muriel Tacke, the plaintiff, and Terry Wayne Eldredge, the defendant's surveyor. The plaintiff then called Donald T. Poole, the plaintiff's surveyor, Charles Tacke, the plaintiff's son, and Joan Aucoin, the plaintiff's daughter.

This litigation has involved the unfortunate expenditure by the parties of time, money and emotion as well as the extensive participation of the court in conferences in order to forge an equitable solution. The parties having been unable to agree, I find and rule that neither party has a right to park in the turnaround area, that it is reserved for the use by the plaintiff and defendant, their heirs, legal representatives, assigns, invitees, and successors to turn their motor vehicles around to leave their respective properties for egress to Route 28 (Main street in Chatham). The defendant and those claiming under her also can back into the turnaround and remain for a short period of time so that a second vehicle may exit from Lot 2, back around and proceed to the public way.

I have been led to this result by all the evidence on which I find and rule as follows:

1. The lands of the plaintiff and the defendant are registered with the former owning Lot 1 on Land Court Subdivision Plan No. 16290 B and the latter Lot 2 on said plan.

2. Both Lots 1 and 2 formerly were owned by Esther F. Houchin whose premises were shown on Land Court Plan No. 16290 A.

3. By deed dated March 23, 1953 and registered with the Barnstable County Registry District (to which all recording references herein refer) as Document No. 36, 32b (Exhibit No. 1) Esther F. Houchin conveyed to Sidney H. Browne and Dorothy J. Browne, husband and wife, as tenants by the entirety, lot 2 on the "B" plan (Exhibit No. 2).

4. The deed conveying Lot 2 contained the grant of the following appurtenant right:

Together with the right to pass and repass from the State Highway over the "driveway" on said remaining land of the grantor shown as Lot "1" on a subdivision plan of land shown on Land Court Plan 16290-A, dated March 1953, drawn by Nickerson & Berger, Civil Engineers, Eastham, Mass.

5. The plan filed with the Land Registration Office on behalf of Ms. Houchin (of which I take Judicial notice) showed a driveway by dotted lines running from the State Highway to the house on Lot 2 with a bulge in the driveway just easterly of the house on Lot 1. The parties call this area the "turnaround."

6. The bulge is not separately denominated on the plan or the official plan which evolved from it.

7. While Lot 2 fronts on Queen Anne Road, also a public way, the terrain rises so sharply from the road that this portion of the defendant's land is not available for parking nor has the Town of Chatham been willing to lease parking spaces on the opposite side of the road.

8. There is a rise on one side of the defendant's driveway to her yard, and greenery which adds to the ambiance of both homes is found extensively on Lot 1 and Lot 2. To the extent that such greenery obscures the Route 28 entrance either party is free to trim the bushes.

9. The defendant with her husband Robert O. Cooling first acquired title to Lot 2 from Joseph H. Bacheller, Jr., Trustee et al by deed dated May 23, 1968 and registered as Document No. 121346 which specifically set forth the appurtenant right. (Exhibit 5)

10. Certificate of Title No. 42764 issued to Robert O. Cooling and the defendant set forth the appurtenant "right to pass and repass from the State Highway over the 'driveway' on the remaining land of Esther F. Houchin [shown as] Lot 1 on said plan." (Exhibit No. 6) Certificate of Title No. 60490 (Exhibit No. 8) issued to Mrs. Cooley contains the same language. The new certificate to the plaintiff, as trustee, has not been issued as yet pursuant to court administrative orders referred to in footnote 1.

11. In 1974 Alice V. Durand, the then owner of Lot 1, granted the defendant at her expense the right to install a sewer line in the portion of the driveway from the branch to the plaintiff's home southerly to Lot 2 with the grantor installing the sewer from Route 28 to the turnoff to her house. The grant contains other provisions relative to the expense of the maintenance of the line and also contained a grant to the defendant to use the driveway both as shown on the filed plan and the "B" plan. The easement is registered as Document No. 190325. (Exhibit No. 9)

12. The plaintiffs' outstanding Certificate of Title is No. 10689 (Exhibit No. 11) on which the 1973 easement is noted as an encumbrance, but as to which there has not yet been filed a death certificate for Charles N. Tacke, one of the registered owners, or an Inheritance Tax Certificate. The certificate also contains this language: "Said land is subject to the rights over the driveway shown on said plan as appurtenant to Lot 2, all as set forth in Document No. 36328."

13. There was conflicting testimony as to the use of the driveway from the time of the 1953 grant. None of the witnesses were familiar with the situation when the original subdivision occurred, but from the evidence as to the terrain, subsequent use and the view it seems clear that Mrs. Houchin intended her grantees to have unimpeded access to their lot and the ability to exit therefrom by using the turnaround to exit onto Route 28 with the hood of the car first. Even in 1953 traffic was such that any driver would have been reckless to back unnecessarily into the state Highway, particularly up the grade from Lot 1.

14. While there was conflicting testimony as to use by the owners of Lot 1 of the "bulge" for parking, I find more credible that the testimony that the area was left free of vehicles so that it could be used for the purpose for which it must have been designed, a turnaround.

15. The use on the ground as distinguished from the location of the way on the "B" plan varies. Donald T. Poole, a surveyor, using the original field notes of Nickerson & Berger who prepared the plan filed with the Land Registration Office located the driveway as given in the notes and as shown on Exhibit No. 17 B as coming closer to the Tacke house than has been the practice of the parties and as encompassing a more easterly turnaround than the southeasterly one the parties have used.

16. Since title to both lots is registered, rights outside those shown on the "B" plan cannot be acquired by prescription. It would seem sensible, however, from the point of view of both the plaintiff and the defendant to have a plan filed for registration to locate the driveway definitively on the ground and to then have the certificates amended to reflect the location as agreed upon.

17. By preliminary injunction dated July 31, 1990 Justice Robert V. Cauchon restrained the plaintiffs, their guests and invitees, including specifically Joan Aucoin and her family, from parking any vehicles or placing any items so as to interfere with the defendant's reasonable use of the driveway, including the turnaround. This injunction has been violated during the pendency of these proceedings.

Nearly 40 years ago the right to use the driveway was granted to the buyer of the subdivided lot, and it has only been since the plaintiff inherited her aunt's home that trouble appears to have arisen. The bone of contention has been whether the owner of Lot 1 can park in the bulge or turnaround or whether it is reserved exclusively for maneuvering. The grant did not specifically address this issue so additional evidence was necessary to determine the question. The topography of the two lots, the nature of Route 28 and the practices of the owners of the two lots lead to the inescapable conclusion that the turnaround was intended for just that purpose by the owners of both lots with no one parking therein for more than ten minutes to rearrange cars, drop passengers or purchases at the Tacke house or the like and a declaration to this effect will be set forth in the judgment which also will restrain all parties from otherwise using the area.The plaintiffs' fence must be relocated as it now encroaches on the driveway unless the parties can agree to substitute the travelled area for the granted driveway or otherwise resolve this question.

The fact that the Coolings may have an alternative for access (which is very doubtful) is immaterial in the light of the specific grant to their predecessors in title which runs with the land.

Judgment accordingly.