REG 42502

March 30, 1992

Middlesex, ss.



By complaint filed February 16, 1989, Plaintiff seeks to register and confirm title, pursuant to G.L. c. 185, § 1, to a parcel of land located in Stow ("Locus"), containing approximately 12.3479 acres in area, as shown on Land Court Plan No. 42502-A, entitled "Plan of Land in Stow, Massachusetts", dated November 2, 1988, by Stamski and McNary, Inc. ("the Plan") (Exhibit No. 1). Plaintiff claims as appurtenant to Locus, "[t]he prescriptive right to pass and re-pass to and from [Locus] and Barton Road on foot and in vehicles over land shown on [the Plan as] 'GRAVEL WAY 8' TO 10' WIDE'" ("the Way"). Plaintiff does not claim an exclusive right to so use the Way. On April 10, 1989, the matter was referred to Land Court Title Examiner, Ethel Chamberlain, Esq. ("the Examiner"). On May 4, 1989, an Examiner's Report was filed with the Court ("the Abstract"). The Examiner reported that, "Petitioner has a good title as alleged, and proper for registration."

On August 12, 1991, Plaintiff amended her petition by adding a prayer that Robert F. and Caroline J. Collings ("the Collingses") be ordered to remove obstructions they placed in the Way and be enjoined from further obstructing the Way.

On August 14, 1991, a Preliminary Injunction ("the Preliminary Injunction") was issued enjoining the Collingses from obstructing the Way and ordering them to fill in a certain excavation in the Way.

This case was tried on April 26 and August 12, 1991, at which times the trial proceedings were transcribed by a court-appointed reporter. On the first day of trial, the Court took a view of Locus. One witness testified and twenty-one exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. As shown on the Plan, Locus is a more or less triangular parcel of wooded land bordering on the Assabet River, with no frontage on any way.

2. The Way is shown on the Plan as "GRAVEL WAY 8' TO 10' WIDE". From Locus to Barton Road, the Way traverses the land of the Collingses, Maynard Sand & Gravel Company, Inc., Henry J. and Barbara E. LaRosee, Richard P. and Patricia A. Ferrara, and Eugene F. and Elinor F. Curley. The Way has provided Plaintiff and her predecessor access for all of the activities on Locus described infra.

3. Locus was purchased by Robert Yuyan ("Yuyan"), Plaintiff's father, on October 10, 1936. Plaintiff was fifteen years old at the time.

4. Yuyan used Locus primarily as a wood lot. He cut trees for firewood, seasoned them at Locus and then sold them in the area of Hudson. He also picked mushrooms on Locus, fished throughout the year on the Assabet River and frequently checked Locus to make sure no one had stolen or tampered with his wood piles. Yuyan gave his friends permission to use Locus for fishing and hunting.

5. From his purchase of Locus until the early 1950's, Yuyan visited Locus almost daily and Plaintiff visited approximately once a month usually with her father. The Way was then known as Sunset Road.

6. In the early 1950's, Yuyan built a cottage ("the Cottage") on or in the immediate area of Locus. Plaintiff, her parents and immediate family began to use Locus, for recreational purposes, such as hiking, blueberry picking, ice skating and going for picnics and cookouts. In connection with those activities, Plaintiff used Locus almost every weekend. Also in the 1950's and 1960's, Yuyan gave a local Girl Scout troop permission to use Locus for camping. As found above, the only access to Locus has been the gravel Way.

7. In the early 1970's, Yuyan tore down the Cottage after it became vandalized. It is not clear from the record whether or not the Cottage was in place for a twenty year period.

8. Yuyan died on July 17, 1977, and on March 2, 1981, Plaintiff purchased Locus from her father's estate. Plairitiff and her family continued to use Locus for recreational purposes.

9. In early March 1984, Defendant, Robert T. Collings ("Collings") offered to purchase Locus from Plaintiff, which offer was refused. Thereafter, around May 1984, Collings began cutting trees and clearing his property and in doing so both obliterated the section of the Way crossing his property and obstructed Plaintiff's access by the felled trees and debris.

10. On June 8, 1984, Plaintiff wrote Collings protesting the obstructions and, after a meeting on April 13, 1985, Collings placed a chain across the Way and posted three "no trespassing" signs along the chain.

11. On or before April 11, 1991, Collings dug a hole in the Way, which effectively prevented its use. In July of 1991, Mr. Collings put up two additional chains blocking the Way.

A prescriptive easement can be acquired upon the land of another by open, notorious, adverse and continuous use for a period in excess of twenty years. G.L. c. 187, §2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v Poch, 321 Mass. 321 , 323 (1947). Those requirements provide " . . . [the owner] notice of the hostile activity of the possession so that . . . the owner may have an opportunity to vindicate his rights by legal action." Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

A prescriptive period resulting in the creation of a prescriptive right can be made up of several periods of successive adverse use by different persons making the successive uses. To produce the necessary privity there must be some relation between the successive users of such a nature that the use made by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one. Ryan at 264; Am. Law of Property, §8.59.

In the present case, I find that Plaintiff and her father, through continuous, adverse, open and notorious use of the Way from 1936 to 1984, have established a prescriptive easement over the Way, appurtenant to Locus, subject to any rights others may have in the Way.

The extent of Plaintiff's right of way, however, is determined by the use through which it was created. Lawless v. Trumbull, 343 Mass. 561 , 562-3 (1962). Accordingly, I find that Plaintiff's rights in the Way are limited to use for accessing Locus forrecreational and wood lot purposes.

Both Plaintiff and the Collingses submitted Post-Trial Memoranda and at trial Plaintiff submitted Requests for Rulings of Law. I have not attempted to rule on each of Plaintiff's Requests as I have made my own rulings on law which I believe is applicable.

I find and rule that Plaintiff holds record title to Locus, free of any rights in the same in Defendants, and that she holds title sufficient for registration and confirmation, subject only to such matters as may appear in the Abstract, but which are not material hereto.

I further find that within 60 days from judgment in this matter, the Collingses shall restore the section of the Way which crosses his property to its condition prior to March 1984. If the Collingses have not acted within 60 days, Plaintiff may restore the Way and charge the Collingses for such restoration.

Judgment accordingly.


[Note 1] The objections of all of the Defendants except Robert F. and Caroline J. Collings have been satisfied, either by stipulation or by Plaintiff's waiver of her claim to exclusive use of the Way, discussed infra. In any event, the Collingses were the only Defendants to present evidence at trial.