MAXWELL MORTON and JUDITH A. MORTON vs. CATHERINE BARBER

Case 177936 is a try title action by Maxwell and Judith A. Morton (the Mortons) against Catherine Barber (Barber) relating to the property (Morton's Property) at 45 Brook Street, Wellesley, owned by the Mortons. The Mortons live in a single family residence on the Morton's Property. Barber owns, and lives in a single family residence on, property (Barber's Property) at 3 Solon Street, Wellesley, which adjoins the Morton's Property. Mr. Morton is also known as Maxwell R. Morton and Mrs. Morton is also known as Judith A. R. Morton.

The Mortons allege that Barber has claimed four parts of the Morton's Property: a walkway area (the Walkway Area) near Solon Street at the common boundary; an area along the boundary on Barber's side of a fence on the Morton's Property; an area on which a cherry tree is located, near the Fence Area; and an area at a lamppost (the Lamppost) near the Walkway Area. There are flagstones in the Walkway Area.

Barber filed an Answer to one paragraph of the Mortons' complaint and there Case 177936 rested, except for discovery skirmishing.

Two days after the filing of Case 177936, Barber filed an action of her own (Case 178067), seeking, in effect, a declaration that she has title to all the disputed areas and seeking the removal of the fence and its reconstruction along the boundary line in the location claimed by her (further into the Morton's Property). The Mortons counterclaimed, seeking a declaration that they have sole rights to the Morton's Property, a permanent injunction against the continuance of the flagstones and Lamppost and damages on the basis that Barber's claims are frivolous. I dismiss the counterclaim insofar as it seeks damages and an injunction.

The two cases have been consolidated and a trial was held on July 24, 1992. A decree shall enter in the try title action requiring Barber to bring an action trying her title. Case 178067 is that action by Barber.

There was no stenographer and the proceedings were not electronically recorded. Barber appeared pro se. The following witnesses testified: Barber, Philip D. Lukens (a registered surveyor), Joyce Ellen Hastings (office manager at Mr. Lukens' surveying firm), and the Mortons. Exhibits 1, 2, 3, 7 A through H, 8 through 15, 24, 25, and 26 were introduced into evidence. Proposed Exhibits 4, 5, 6, and 16 through 23 were presented by Barber and marked for identification. All the Exhibits and proposed exhibits are incorporated in this Decision for purposes of any appeal.

I find and rule as follows:

1. Barber initially acquired an interest in Barber's Property as a tenant by the entirety with Theodore X. Barber by a deed (Exhibit 1) dated July 26, 1960, recorded in Norfolk County Registry of Deeds (to which all recording references in this Decision apply) in Book 3833, Page 496. Mr. Barber later conveyed his interest in Barber's Property to Barber by a deed not in evidence. Barber has lived at Barber's Property since 1960.

2. The Morton's Property was acquired by the Mortons by deed (Exhibit 2) dated August 7, 1975, recorded in Book 5156, Page 212. The Mortons have lived at the Morton's Property since 1975.

3. Barber's Property and the Morton's Property are derived from a common grantor, and, as appears in their respective Deeds, are shown on a Plan (Exhibit 3) entitled "Elmdale Park, Wellesley, Mass., Plan 1" = 40', March 1904", which is recorded in Plan Book 39, Plan No. 1813. Barber's Property is Lot 20 on that plan and the Morton's Property (which is at the corner of Solon and Brook Streets) is Lot 21 and a part of Lot 22.

4. Barber's Property and the Morton's Property are also shown on a Plan (Exhibit 26, the "1992 Plan") dated March 11, 1992 prepared by G. L. M. Engineering Consultants, Inc. (Mr. Lukens' firm).

5. The common boundary line between Barber's Property and the Morton's Property is as shown on the 1992 Plan. Its location was established by completely convincing testimony of Mr. Lukens and Ms. Hastings.

6. The 1992 Plan correctly shows location of the Walkway Area and the Lamppost. The Walkway Area is shown as "Paving Stone Walk" on the 1992 Plan; its metes and bounds description is shown as "Walkway Easement Detail" on a slightly different version of the 1992 Plan, Exhibit 15. That shows that the Walkway Area is 5' wide at its widest point and contains about 153 square feet. The Walkway Area leads from Solon Street along the common boundary, curving into Barber's Property until it passes off the Morton's Property.

7. The original fence was erected by predecessors in title to the Mortons, the Frothinghams, sometime between July 1965 to June 1969. It had two parts, one, containing three sections, close to the Solon Street part of the common boundary. Only one section of that remains and it is shown on the 1992 Plan, just to the southeast of the Lamppost. There was no testimony as to when the other two sections of that front part of the fence disappeared or how.

8. The other part of the fence leads from about halfway along the common boundary line to the rear boundary line. In 1984 the Mortons replaced the rear portion of the Frothingham fence, which had become dilapidated. Barber claims that the original fence was further into the Morton's Property than the present fence but I find that it was not. The rear part of the fence is shown on the 1992 Plan.

9. The Cherry Tree is not shown on the 1992 Plan but I find that it is located on the Morton's Property about two to three feet northeasterly of the rear portion of the fence, more or less at the location of the word "Fence" on the 1992 Plan.

10. A gap exists (and always has) between the front and rear portions of the fence. The Lamppost is in that gap, as are some pine trees.

11. Barber planted the Cherry Tree in the early 1960's, before the Frothinghams moved in. Sometime during the Frothingham's tenure, they erected the fence, so it was in place by at least 1969. Accordingly, at least as early as 1969, the fence has stood between Barber's Property and the Cherry Tree.

12. None of the parties knew exactly where the boundary line was and whether the fence marked it, until 1983, when Mr. Lukens' firm staked the line. The same uncertainty was true of the Frothinghams.

13. The flagstones were in the Walkway Area when Barber bought Barber's Property in 1960, and the Lamppost was in place then also. The switch which activates the Lamppost is in Barber's house.

14. Until the mid or late 1980's Barber has not claimed of the Mortons any of the rights she now asserts.

15. When Barber, and when he was living at Barber's Property, Mr. Barber, came out of their house they customarily turned right (not left towards the Morton's Property), to reach their car, which was parked on the other side of their house from the Morton's Property. There is no place for Barber to park near the Walkway Area.

16. Mr. Morton admits that he has seen Barber use the Walkway Area. He did not comment to her as to her use. The Mortons have themselves walked over the Walkway Area and Mr. Morton has mowed the grass there, at least since the middle 1980's.

17. While the Barbers may have walked out their house and turned right, more often than they used the Walkway Area, I find that, given the evident function of the flagstones in the Walkway Area as an access for someone approaching the Barber's house on foot, the Barbers, and Mrs. Barber since she has owned individually, have, without permission, used the Walkway Area with sufficient frequency and continuity to establish an easement by prescription to use the Walkway Area for pedestrian passage to and from Barber's Property on a non-exclusive basis. At no time did the Barbers, or Mrs. Barber, acknowledge any right in the Mortons or their predecessors to prevent continuance of the Barber use. The Barber's, and Mrs. Barber's, use of the Walkway Area was not exclusive and was not such as to establish title to the Walkway Area.

18. since at least 1960 the Lamppost has been in place as an appurtenance to Barber's Property. I find that Barber's Property has an easement, benefitting Barber's Property, for the continuance of the Lamppost and lighting fixture in its present location, with the right to use, maintain, repair and replace it as necessary, in each case restoring the Morton's Property to its condition prior to the maintenance, repair or replacement, to the extent reasonably practicable.

19. Except as to the Walkway Area and the Lamppost, Barber has not shown use of any portion of the Morton's Property by her or her former husband which would establish rights by either adverse possession or prescription. The erection of the fence in its location on the Morton's Property does not, by itself, establish rights in Barber. There was no evidence as to the Cherry Tree favorable to Barber other than that she planted it; further, it has been since at least 1969, and perhaps earlier, on the other side of the fence from Barber's Property. Barber has no rights as to it.

20. Barber objected at the trial that a son of the Mortons did not appear in answer to a subpoena. However, I find that the son was at the time of the purported service of the subpoena a resident of New York City. In any event, Barber hoped to establish from him information as to the location of the fence, and that would not have helped her case.

Judgment accordingly.