REG 42607

January 29, 1992

Essex, ss.



By complaint filed August 23, 1990, Plaintiff seeks to register and confirm title, pursuant to G.L. c. 185, §1, to a parcel of land located in Gloucester known as 267 East Main Street ("267 East Main Street") ("Locus") containing approximately 16,989 square feet in area, as shown on Land Court Plan No. 42607-A, entitled "Plan of Land in Gloucester, Massachusetts", dated March 12, 1986, by Tibbetts Engineering, Corp. ("the Plan") (Exhibit No. 1). Following the issuance of notice to all potential claimants in the matter, on July 2, 1990, the Attorney General for the Commonwealth of Massachusetts ("the Attorney General") and, on August 7, 1990, Defendant, John Steiger ("Steiger") filed objections to Plaintiff's registration complaint. On September 11, 1991, the Attorney General withdrew his objection and a stipulation was filed in which the Plantiff and Attorney General agreed that any decree issuing in this case be subject to the rights of the public in Smith Cove and the provisions of G.L. c.91. On August 28, 1989, the matter was referred to Land Court Title Examiner, Marc N. Sandler, Esq. ("the Examiner"). On January 19, 1990, an Abstract of Title to Locus was filed with the Court ("the Abstract") (Exhibit No. 2). In the Abstract, the Examiner reported that, "Petitioner has a good title as alleged, and proper for registration."

On September 11, 1991, the Court allowed Plaintiff's Motion for General Default.

This case was tried on September 11, 1991, at which time the trial proceedings were transcribed by a court-appointed reporter, however, no transcript of the proceedings was furnished to the Court. At trial, Defendant appeared pro se. Three witnesses testified and eleven exhibits and a chalk were introduced into evidence. All of the exhibits and the chalk are incorporated herein by reference for the purpose of any appeal.

On September 20, 1991, Plaintiff submitted a Post Trial Memorandum. Defendant has submitted no post trial material.

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

1. As shown on Land Court Plan No. 42607-A, Locus is a more or less rectangular parcel of land in Gloucester bordering on the waters of Smith Cove, with frontage on East Main Street.

2. Plaintiff acquired Locus from George I. Rohrbough by deed dated February 6, 1976 and recorded at Book 6216, Page 173, in the Essex South Registry of deeds.

3. To the northeast of the structure on Locus as shown on the Plan, there exists a paved driveway ("the Driveway"), which Driveway extends from East Main Street to the back portion of Locus on Smith Cove. The Driveway is shown more clearly on an aerial photograph introduced as Exhibit Number 11.

4. The only issue to be decided herein is whether Defendant has established an easement by prescription over the Driveway. The Driveway has been in existence, in some form, at least since the early 1900s. A sliver of the Driveway on the northeast side is not claimed as part of Locus, but is on Defendant's property (the Adjacent Parcel").

5. In 1976, when Plaintiff purchased Locus, the Adjacent property was owned by Cecil Sampson ("Sampson"). At the time of the purchase, the Driveway was gravel surfaced in disrepair. Shortly after the purchase, Julian Hatch ("Hatch"), Plaintiff's representative told Sampson that Plaintiff would be paving the Driveway, but indicated that Plaintiff intended to maintain full and complete ownership of the Driveway. They agreed that Plaintiff would pave Sampson's portion of the Driveway as an accommodation.

6. From 1976 to 1989, Plaintiff blocked the Driveway each year for at least one day to protect its rights and notified Sampson of such blockage and the reason therefor. Future owners of the Adjacent Parcel, Ann Clark and Defendant, who purchased the Parcel in 1988, were also aware of the blockage and the reason therefor.

7. Defendant presented no evidence as to the use of the Driveway prior to his purchase.

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).

In the present case, I find that the use of the Driveway by Defendant and his predecessors in title during Plaintiff's ownership of Locus was permissive and further that Defendant has failed to establish adverse, or any use of the Driveway for any twenty year prescriptive period.

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

Judgment accordingly.