MISC 08-383555

April 6, 2012

Sands, J.


Plaintiff filed her unverified complaint on September 4, 2008, alleging deeded rights and trespass in a right-of-way located off Tahattawan Road in Littleton, Middlesex County, Massachusetts (the “Disputed Area”). [Note 2] Plaintiff also sought, pursuant to the provisions of G. L. c. 240, §§6-10, a determination of rights in such way. [Note 3] On September 29, 2008, Defendants (and counter-claimants) Michael Lelievre and Colleen Lelievre (the “Lelievres”) filed an Answer and Counterclaim alleging deeded rights, adverse possession, prescriptive rights, and easement rights (including an easement by necessity) in the Disputed Area. Plaintiff filed her Answer to Counterclaim on November 12, 2008. A case management conference was held on November 24, 2008.

On September 25, 2009, Plaintiff filed her Motion for Partial Summary Judgment, together with supporting memorandum, Appendix, and Affidavit of Diane C. Tillotson. The Lelievres filed their Opposition on November 4, 2009, together with supporting memorandum, Appendix and Affidavit of Erica P. Bigelow. A hearing was held on the summary judgment motion on February 8, 2010, and a decision (the “Summary Judgment Decision”) was entered on October 5, 2010, in which I found that, as between Plaintiff and the Lelievres, Plaintiff owns the fee interest in the Disputed Area under the Derelict Fee Statute; that the owner of Lot A, as hereinafter defined, does not have a right to use the Disputed Area based on a theory of easement by estoppel; and that the owner of Lot A does not have a right to use the Disputed Area based on a theory of easement by necessity. As a result of the foregoing, I ALLOWED Plaintiff’s Motion for Partial Summary Judgment.

On June 7, 2011, Plaintiff filed a Motion for Preliminary Injunction. A pre-trial conference on the issues of adverse possession and prescriptive rights was held on June 15, 2011, and at that time the parties entered into a Stipulation to resolve the Motion for Preliminary Injunction where they agreed a) not to enter Area 2, b) to let the stockade fence remain in place, and c) that Area 1 could be used by the Lelievres as residential access by three vehicles (a minivan, a dump truck and a pick-up truck). A site view and the first day of trial at the Concord District Court were held on October 4, 2011. The second day of trial was held on October 5, 2011, at the Land Court in Boston.

Testimony at trial was given by the Lelievres’ witnesses Jacqueline Guthrie (“Guthrie”) (formerly Flannery, and prior owner of Defendant Property) [Note 4], Frances Simeone (“Simeone”) (formerly Cauoette and prior owner of Lot A), Barbara Boothby (prior owner of Lot A), Kathy Kristofferson (prior owner of Lot A), and Michael Lelievre (Defendant). Testimony at trial was given by Plaintiff’s witness David (husband of Plaintiff). There were forty exhibits submitted into evidence, including the affidavit of Judith Kotanchik (prior owner of the Subdivision Land, as hereinafter defined). Post-trial briefs were filed on December 14, 2011 and December 16, 2011 by the Lelievres and Plaintiff, respectively. The matter was then taken under advisement.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts: [Note 5]


1. By deed dated May 2, 1953, and recorded with the Middlesex South District Registry of Deeds (the “Registry”) at Book 8088, Page 466, A. Delana Brown and Wilbur M. Brown (the “Browns”) conveyed property located on the east side of Tahattawan Road to Gordon E. Westby and Janet H. Westby (the “First Westby Lot”). [Note 6]

2. The Browns subdivided a portion of their property as shown on a Plan titled, “Land in Littleton Owned by Wilbur M. Brown and Mary H. Brown,” dated February 8, 1958, and prepared by Harlan E. Tuttle, Surveyor (the “1958 Plan”). [Note 7] The 1958 Plan was recorded with the Registry on February 1, 1960, at Book 9541, Page END.

3. By agreement with the Town of Littleton dated September 21, 1959, and recorded with the Registry on May 19, 1960 in Book 9597, Page 246 (the “Agreement”), the Browns agreed to construct the subdivision roadways in accordance with the 1958 Plan. [Note 8]

4. By deed dated September 18, 1973, and recorded with the Registry at Book 12528, Page 104 (the “Second Westby Deed”), the Browns conveyed property located on the east side of Tahattawan Road containing 3,136 square feet to Janet H. Westby (the “Second Westby Lot”). The Second Westby Deed referenced the 1958 Plan, and the Second Westby Lot was shown on the 1958 Plan as abutting the northern edge of the Disputed Area. The deed contained the language: “[s]ubject to and with the benefit of easements, restrictions and agreements of record, if any there be, insofar as the same are now in force and applicable.”

5. By deed dated October 15, 1973, and recorded with the Registry at Book 12541, Page 024 (the “Kotanchik Deed”), the Browns conveyed property located on the east side of Tahattawan Road (the “Subdivision Land”) to James J. Kotanchik and Judith R. Kotanchik (the “Kotanchiks”). The Kotanchik Deed did not reference a recorded plan in conveying the Subdivision Land, instead conveying the property by legal description. [Note 9] No right of way was reserved to the Grantors within the Kotanchik Deed. The Kotanchik Deed did, however, reserve to the Grantors the right to keep water pipes that were on the property at the time of conveyance and to “enter the property at any time to make necessary repairs,” to those pipes.

6. By deed dated December 19, 1977, and recorded with the Registry at Book 13356, Page 435 (the “Flannery Deed”), the Kotanchiks deeded the Subdivision Land to Leo R. Flannery and Jacqueline A. Flannery (the “Flannerys”). The Flannery Deed did not reference the 1958 Plan in its legal description except for a reference to parcels that had already been deeded out by the Browns.

7. The Flannerys arranged for the preparation of a plan titled “Plan of Land in Littleton, Mass. Owned by Jacqueline A. & Leo R. Flannery,” dated September 10, 1979 and prepared by David W. Perley (the “1979 Plan”). The 1979 Plan was recorded with the Registry on October 11, 1979, as Plan Number 1218 of 1979. The 1979 Plan shows a single lot, Lot A, which consists of a 3.6 acre portion of the Subdivision Land. Lot A included a strip of land that provided access to Tahattawan Road located between the Second Westby Lot and the Shields Property. This strip is consistent with the location of the Disputed Area, but was not separately identified on the 1979 Plan. [Note 10]

8. The Flannerys conveyed Lot A to Bernard A. Caouette by deed (the “Caouette Deed”) dated October 11, 1979, and recorded with the Registry at Book 13809, Page 272. The Caouette Deed referenced the 1979 Plan and reserved a right of way for grantors across Lot A (including the Disputed Area) for access to Tahattawan Road. The reserved right of way stated,

Said right of way is intended to be used in common with the grantee for all reasonable purposes of ingress and egress, provided, however, that the grantors, their heirs, executors and assigns, shall share equally with the owner of Lot A the cost of all routine maintenance and repairs to keep the right of way in the same condition as when reserved, reasonable wear and tear excepted, including but not limited to snow removal, as long as the reservation of the right of way remains in force and applicable.

The Disputed Area was located within the 3.6 acres conveyed by the deed.

9. By deed dated May 15, 1981, and recorded with the Registry at Book 14294, Page 259, the Flannerys conveyed the Subdivision Land (less all conveyances made prior to that time) to Sherrill R. Gould.

10. By deed dated April 17, 1992, and recorded with the Registry at Book 32995, Page 027, Bernard A. Caouette and Frances S. Caouette conveyed Lot A to Barbara E. Boothby and Cathy Kristofferson (together, “Boothby/Kristofferson”). [Note 11] This deed conveyed Lot A by making specific reference to the 1979 Plan.

11. By deed dated May 12, 1999, Plaintiff obtained title to the First Westby Lot and the Second Westby Lot (together known as 70 Tahattawan Road, Littleton, MA) from Janet H. Westby and recorded with the Registry at Book 30194, Page 450. [Note 12]

12. By deed dated July 1, 2005, and recorded with the Registry at Book 45525, Page 526, Boothby/Kristofferson deeded Lot A to the Lelievres. This deed conveyed Lot A by making specific reference to the 1979 Plan.


13. From 1973 to 1977, the Kotanchiks owned approximately twelve acres of property which comprised the Subdivision Land and was situated, in part, to the east of Plaintiff Property. The Kotanchiks visited the Subdivision Land during this period fewer than ten times. When visiting, the Kotanchiks would access the property by traveling up a dirt “cart path,” characterized by two dirt ruts approximately the width of a car’s tire with grass between them. This path was located within, and comprised, Area 1. No improvements were made to the path during this period.

14. When the Kotanchiks purchased the Subdivision Land, a row of neglected apple trees stood on each side of Area 1. To the south, the row of trees followed along the southern boundary of the Disputed Area. To the north, the second row of trees stood approximately ten feet south of the Disputed Area’s northern boundary. A natural swale lay between the northern row of trees and Area 1. The Kotanchiks had several percolation tests conducted on the Subdivision Land until they found a suitable location to build a house. They did not use or improve the Subdivision Land in any other way.

15. From 1977 to 1979, the Flannerys used portions of the Subdivision Land to pasture horses and grow crops. The Flannerys would access much of the Subdivision Land, including that portion which would later comprise Lot A, by traversing Area 1 either on foot, horseback, or by motor vehicle (tractor, pick-up truck, or snowmobile). Area 1 was wide enough such that a three-quarter ton pick-up truck could drive up its center from Tahattawan Road with room remaining on each side. The Flannerys added some gravel to Area 1 and plowed during the winter. Mr. Flannery would occasionally cut limbs off of the apple trees located in Area 2 for use in his wood stove. The Flannerys did not use Area 2 for any other purpose.

16. The Caouettes owned Lot A from 1979 to 1992 and built a house (the “House”) on Lot A from 1982-1984. Mr. Caouette oversaw the installation of electrical and water service to the House, elements of which lay within both Area 1 and Area 2, prior to receiving the final occupancy permit in August of 1986. [Note 13] The utilities were installed by the Littleton Electric Light & Water Departments and include a utility pole (the “Pole”), underground electrical and water lines, and a transformer (the “Transformer”). [Note 14] Installation of the utilities required the Caouettes to clear portions of Area 2. Upon receiving an occupancy permit for the House in 1986, the Caouettes installed a mailbox (the “Mailbox”) in Area 2 near the Pole. The Mailbox stands in the same location, today. [Note 15] The Caouettes maintained and improved Area 1 by adding a significant amount of gravel and plowing fallen snow when necessary. Area 1, described by Simeone as being 1-2 vehicles wide, was used by the Caouettes to provide daily access to the House. In order to keep Area 1 from eroding, the Caouettes planted small bushes in Area 2, along the edge of Area 1. They maintained the bushes while they were the owners of Lot A.

17. Electricity from Tahattawan Road travels above ground to the Pole. The lines then continue underground, traveling through portions of Area 1 and Area 2, to the above-ground Transformer. The Transformer is located on Lot A near the southeast corner of Plaintiff Property. Upon reaching the Transformer, the lines continue underground toward the House. Water lines connected to the town’s water system travel on the southern edge of the Disputed Area, passing through portions of Area 1 and Area 2. [Note 16]

18. Boothby/Kristofferson owned Lot A from 1992-2005. They used Area 1 for daily access, and paid to have it plowed when necessary. Boothby/Kristofferson did not replace stones that had comprised Area 1 and were cast off during plowing. On rare occasion, they pruned the “bramble” on either edge of Area 1, but such pruning occurred only to the extent that it kept cars from being scratched when driving by. In so doing, they did not enter Area 2 but rather stood in Area 1 and trimmed the encroaching plants. As a result, Area 2 gradually became overgrown. They did not enter or use Area 2 for any other purpose.

19. The Lelievres have lived at Lot A from 2005 to the present, using Area 1 to access the House on a daily basis. [Note 17] Since their purchase of Lot A, the Lelievres have added gravel to Area 1 when needed, and have plowed when necessary. The Lelievres also added a FIOS internet line in 2006, running the line beneath Area 1. The Lelievres cleared Area 2 by removing trees and bushes and adding soil (to increase its grade). On December 6, 2006, having removed several trees, the Lelievres built a stockade fence (the “Fence”) which runs along the northerly boundary of Area 2, as shown on Exhibit A.

20. The Lelievres had a survey plan prepared dated March 28, 2006, by David E. Ross Associates, Inc. The width of the Disputed Area along Tahattawan Road is shown as being approximately 75 feet. [Note 18]

21. Plaintiff’s mother (Janet Westby) lived at Plaintiff Property from 1953 to 1997. Plaintiff’s husband David Allen (“David”) first visited Plaintiff Property in 1968, during which he walked the Disputed Area with his father-in-law. At that time the Disputed Area was an apple orchard, with two rows of apple trees and a dirt path between the two lines of trees. Between 1968 and 1992 (when Plaintiff purchased Plaintiff Property from her mother, and except for the period 1970-1975 when David was teaching in England or New Hampshire), David walked the Disputed Area once or twice a month when visiting his mother-in-law, often with a dog. David’s walks continued until 2000.

22. David planted trees and shrubs in Area 2 in the 1970s and the 1980s. When on a walk, David would typically enter Area 2 directly south of the house on Plaintiff Property, later crossing into Area 1 to continue east. David also used Area 2 for playing badminton, as the location for a compost pile, and for planting a garden (1960s-1990s). One of David’s dogs is buried beneath a large boulder in Area 2. Since Plaintiff purchased Plaintiff Property in 1992, David has pruned bushes located in Area 2 in order to preserve Plaintiff Property’s views.


In the Summary Judgment Decision, this court established that as between Plaintiff and the Lelievres, Plaintiff is the fee owner of the Disputed Area pursuant to the Derelict Fee Statute. [Note 19] This court then heard testimony at trial as to whether the Lelievres have established rights to the Disputed Area through adverse possession or an easement by prescription. The Lelievres assert that a finding of adverse possession in Area 1 would entitle them to the entire Disputed Area pursuant to their color of title argument. I shall review these issues in turn.

In Massachusetts, an individual may obtain title to the land of another if he exercises actual, open, notorious, exclusive, adverse, and nonpermissive use of the property for a period in excess of twenty years. Ryan v. Starvos, 348 Mass. 251 , 262 (1964). “Whether, in a particular case, these elements are sufficiently shown is essentially a question of fact.” Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 156 (2011) (quoting Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961)). A party asserting its acquisition of title through adverse possession bears the burden of proving each of the necessary elements of such possession. Mendonca v. Cities Serv. Oil Co. of PA, 354 Mass. 323 , 327 (1968). To satisfy this burden, the party must demonstrate satisfaction of each element by a preponderance of the evidence. Conti v. Cormack, 76 Mass. App. Ct. 1120 (2010) (citing Clevenger v. Haling, 379 Mass. 154 , 157-58 (1979)). If any element is left in doubt the claimant cannot prevail. Mendonca, 354 Mass. at 327.

“The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938). Use is generally deemed “open” so long as it is “without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). “Notorious use” requires that the use be “sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id.

In determining whether use over the property of another constitutes actual use, “[a] judge must examine the nature of the occupancy in relation to the character of the land.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance, 301 Mass. at 491. Actual use need not manifest itself through some form of permanent structure, so long as the use is in a manner consistent with that of typical ownership. Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 (2008) (citing LaChance, 301 Mass. at 491).

An easement by prescription requires the asserting party to demonstrate each element of adverse possession, with the exception of exclusive use. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). The extent of an easement so obtained is “fixed by the use through which it was created.” Stucchi v. Colonna, 9 Mass. App. Ct. 851 (1980) (citing Lawless v. Trumbull, 343 Mass. 561 , 562-63 (1962)). An easement may be limited to residential use when commercial use of that property has been, “irregular and sporadic.” Stucchi, 9 Mass. App. Ct. at 851.

Area 1

Plaintiff concedes that the Lelievres have acquired prescriptive easement rights over Area 1, though she seeks to limit such easement to residential uses and to an area 8-10 feet in width. In so conceding, Plaintiff admits that the Lelievres and their predecessors-in-interest utilized Area 1 in an open and notorious manner for a period in excess of twenty years and that the use thereof was adverse to Plaintiff’s rights. The Lelievres maintain that in addition to having established prescriptive rights over Area 1, they have acquired title to Area 1 via adverse possession. As a result, only the element of exclusive use remains at issue with regard to that claim. The extent of Area 1 also remains at issue.

I. Exclusive Use of Area 1

Use of a property is “exclusive” when the individual exercising its actual use excludes, “not only…[the] owner, but…all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass. App. Ct. at 557. “Acts of enclosure or cultivation are evidence of exclusive possession.” Id. (quoting Labounty, 352 Mass. at 349). Such enclosures are not necessary, however, so long as third parties are excluded in a manner similar to that in which the owner would have excluded them. See id.

Plaintiff asserts that her husband’s purported use of Area 1 operates to defeat the Lelievres’ claim of adverse possession. In support of her contention, Plaintiff offered the testimony of her husband, David. During his testimony, David indicated that he first walked in portions of the Disputed Area with his father-in-law in 1968. From that point until 1992, when his wife purchased Plaintiff Property from her mother, David visited Plaintiff Property monthly. [Note 20] While there, David would walk within the Disputed Area, including Area 1. His walks were often in the company of one of two dogs, and appear to have occurred on some occasions with his son and mother-in-law. David also testified that individuals visiting Plaintiff Property would occasionally use Area 1 as a means of access. Despite his purported use of the Area 1, however, none of the predecessors-in-interest to Lot A ever witnessed David in the Disputed Area. [Note 21]

The Lelievres have failed to demonstrate that the use of Area 1 by their predecessors-in-interest was exclusive. David’s testimony described, to this court’s satisfaction, several instances in which he utilized Area 1 from 1968-70, and 1976-2000. The Lelievres’ predecessors-in-interest, regardless of whether they were aware of David’s presence, made no effort to exclude outsiders from utilizing Area 1. [Note 22] No fences were installed. [Note 23] No signs concerning trespass were noted. Nothing stood in the way of David’s frequent use of Area 1.

I find that the Lelievres and their predecessors-in-interest did not use Area 1 exclusively for a period of twenty years.

II. Extent of the Area 1 Easement

The record remains ambiguous as to the exact width of Area 1 throughout the requisite twenty year period, due in part to the susceptibility of gravel roads to shift over time. Nonetheless, I find that at no point did Area 1 measure any less than ten feet in width. Guthrie indicated that during her ownership of the Subdivision Land, she would drive a three-quarter ton pick-up truck with a snowmobile trailer on Area 1. In doing so, Guthrie noted that there was, “still road on both sides if you drove up the middle.” Simeone testified that her husband drove a pick-up truck, a backhoe, and other equipment used to build the House in Area 1 without issue. Per Simeone, the driveway was, “wider than one vehicle, but it wasn’t two vehicles wide,” and during the period 1986-1992, was used for light commercial purposes. Boothby, the subsequent owner of Lot A, testified that Area 1 was “approximately a car and a half width,” and that neither she nor Kristofferson ever used the Disputed Area for commercial purposes. Mr. Lelievre later acknowledged that the testimonies of Guthrie, Simeone, and Boothby/Kristofferson indicated that the driveway was approximately one and a half cars wide, or “nine to ten feet.” [Note 24]

Testimony by the several witnesses has convinced this court that Area 1 has been at least ten feet wide for the requisite twenty year period. At a width of ten feet, the driveway allows for continued use by the Lelievres in the manner in which it has been used for over twenty years. As it appears that the only period during which Lot A was utilized for commercial purposes was 1986-1992, the easement is limited to residential use. [Note 25] I find that the easement over Area 1 is ten feet in width and is to be for residential purposes only.

Area 2

The Lelievres also request a finding that their use of Area 2, extending from the northern edge of Area 1 to the southern edge of Plaintiff Property, is sufficient for the purposes of adverse possession or a prescriptive easement. [Note 26] Unlike use of Area 1, Plaintiff challenges each element of the Lelievres’ adverse possession claim regarding Area 2, asserting that neither adverse possession nor prescriptive rights are appropriate. Plaintiff has presented no information evidencing a grant of permission for use of Area 2 to the Lelievres or their predecessors-in-interest.

A. Structures: the Pole, underground electrical lines, water lines, and the Mailbox: [Note 27]

The Lelievres have convinced this court that use of the Pole, underground electrical lines, water pipes, and the Mailbox by owners of Lot A was sufficiently actual, open, and notorious for the requisite period of twenty years. These utilities were installed prior to 1984 and remain the only medium through which power and water reach Lot A. The Pole was placed in Area 2 in order to receive final housing approvals and an occupancy permit, and was visible to passers by. [Note 28] Upon reaching the Pole, electricity from Tahattawan Road continues via underground wires to an above-ground transformer near the southeastern corner of Plaintiff Property, running beneath portions of both Areas 1 and 2. [Note 29] At no point did residents of Lot A cease use of these utilities after 1984. At no point were the Pole located within Area 2 or the Transformer located opposite the Pole moved or removed. The Mailbox has stood in the same location within Area 2, near Tahattawan Road, since Lot A first housed residents in 1986.

Having viewed Area 2 at the site view and the several pictures of Area 2 entered into evidence, this court is convinced that the installation of the above-referenced structures in Area 2 was “sufficiently pronounced,” such that Plaintiff would have been aware of their existence had she maintained “a reasonable degree of supervision over the property.” Boothroyd, 68 Mass. App. Ct. at 44. The Pole has stood conspicuously in Area 2 for over twenty years and should have alerted Plaintiff as to the existence of an outsider on her property, [Note 30] as well as to the related underground utilities servicing Lot A. [Note 31] David too, having convinced this court that he utilized both Area 1 and Area 2 on a regular basis, should have been aware of the utilities thereon. [Note 32] Plaintiff should likewise have been aware of the Mailbox that stood in the area for over twenty years.

I find that use of the Pole, the related utility lines, the water pipes, and the Mailbox were sufficiently actual, open, and notorious for the purposes of an easement by prescription over those elements of Area 2.

B. The remainder of Area 2

Despite demonstrating twenty continuous years of open and notorious use of the utilities and their related structures, the Lelievres have failed to describe such a period within which owners of Lot A utilized the remainder of Area 2. Mrs. Kotanchik, an owner of the Subdivision Land from 1973-1977, testified that neither she nor her husband ever used Area 2, and that they visited the Subdivision Land no more than ten times during their six year tenure as its owners. Mrs. Kotanchik indicated that even upon their purchase they did not walk the Subdivision Land, and that other than requisitioning several percolation tests, their use of the Subdivision Land was limited to driving a vehicle through Area 1 in order to view the land to the East. None of these actions took place in Area 2. As such, the Kotanchiks’ use of Area 2 was not sufficiently open and notorious for the purposes of adverse possession or prescriptive easement.

The Flannerys, title owners of the Subdivision Land from 1977-1979, used the Subdivision Land to pasture horses, store snowmobiles, and grow crops. Testimony at trial indicated that while they owned the Subdivision Land, the Flannerys used Area 2 sparingly, having plowed snow from Area 1 into it and having trimmed limbs from the decrepit apple trees for their wood stove. No additional maintenance of Area 2 appears to have occurred during the period in which the Flannerys owned the Subdivision Land.

The Flannerys use of Area 2, like that of the Kotanchiks, was insufficient to demonstrate open and notorious use of Area 2. The Flannerys did not improve Area 2, not did they maintain or utilize it, having entered the area only to collect fallen branches from apple trees which they would use to build a fire. They did not cut the grass or plant trees in Area 2. They did not erect any structures in Area 2. The Flannerys’ infrequent entry into Area 2 to cut and collect branches and as a location for plowed snow during 1977-1979 was insufficiently open and notorious for the purposes of adverse possession or an easement by prescription.

The Caouettes, title owners of Lot A from 1979-1992, made extensive use of Area 2 beginning in 1984. In addition to the installation of the utilities and the Mailbox, activities that would have been evident to any onlookers, the Caouettes expended considerable efforts in maintaining Area 2. Having added a substantial amount of gravel to Area 1 in 1984, the Caouettes planted several bushes in order to prevent or prolong its erosion. Evidence presented at trial also indicated that the Caouettes maintained the terrain in Area 2, beginning in 1984 and continuing until their sale of the property in 1992. Accordingly, the Caouettes’ use of Area 2 from 1984-1992 was sufficiently open and notorious for adverse possession and prescriptive easement purposes.

Upon the sale of Lot A to Boothby/Kristofferson in 1992, Area 2 ceased to be used in an open and notorious manner. Boothby/Kristofferson, the subsequent owners of Lot A, did not enter, improve, or maintain Area 2. Boothby testified that she did not “ever utilize the area between the driveway and the Westby home for any purpose at all,” nor was any evidence presented regarding her use of the Disputed Area situated between Area 1 and the Shields Property. Kristofferson similarly testified that she did no planting or other maintenance on “either side” of Area 1, with the exception of limited trimming of bramble that might scratch cars in Area 1. Neither party ever stopped their vehicle in Area 1 and walked either north or south from Area 1. Neither of them improved or maintained Area 2. As a result, Area 2 “got brushier.”

As a result of the foregoing, the Lelievres have failed to demonstrate a continuous period of time in which owners of Lot A utilized Area 2 openly and notoriously for a period of twenty years. Neither the Kotanchiks nor the Flannerys, together owning the Subdivision Land between the years 1973-1979, used Area 2 to an extent that could, in this court’s opinion, constitute open and notorious use. Open and notorious use of Area 2 began in 1982 when the Caouettes, then owners of Lot A, began building the House that is now situated upon it. From 1982 to 1992, this court is convinced that the Caouettes’ used and maintained the whole of Area 2 in an open and notorious manner. That use, however, ended in 1992 when Boothby/Kristofferson purchased Lot A and ceased any use of Area 2, other than use of the utilities and the Mailbox.

I find that the Lelievres have failed to demonstrate a twenty year period during which owners of the Subdivision Land or Lot A utilized the remainder of Area 2 in an open and notorious manner.

Exclusive Use

The Lelievres have likewise failed to demonstrate a consecutive twenty year period during which owners of Lot A utilized Area 2 exclusively. During his walks, David would typically enter Area 1 by traversing Area 2. David’s walks, as previously identified, are sufficient in this court’s opinion to defeat the Lelievres’ claim of exclusive use of Area 1, and are likewise sufficient to frustrate the Lelievres’ claim of exclusive use of Area 2. In addition to David’s walks, however, Plaintiff undertook significant improvements to Area 2. During the 1970s and 1980s, David planted trees and shrubs in Area 2, intending to increase the level of privacy from the south of Plaintiff Property, and would periodically trim those trees and bushes in order to maintain the views from the house on Plaintiff Property. David also played badminton, installed a compost pile, and maintained a garden between the years 1960-1990 within Area 2. David’s dog was buried in Area 2. Plaintiff’s use of Area 2 sufficiently precludes any finding of exclusive use of Area 2 by the Lelievres through their predecessors-in-interest. I find that the Lelievres’ use of Area 2 was not exclusive for the requisite twenty year period.

As the Lelievres have failed to demonstrate their open and notorious or exclusive use of Area 2 for a continuous twenty year period of time, I withhold an analysis of the remaining elements of adverse possession or easement by prescription. I find that the Lelievres have established a prescriptive easement over Area 2, solely limited to the use and maintenance of the Pole, the related utility lines, the water pipes, and the Mailbox.

Color of Title

The Lelievres argue that they have obtained fee title to both Area 1 and Area 2 by color of title. When a person enters and occupies a parcel of land pursuant to a color of title, the doctrine of color of title allows such person to extend possession of a portion of that land to the entirety of the property described in the deed. Dow v. Dow, 243 Mass. 587 , 590 (1923). A claimant seeking to establish property rights under color of title must: “(1) satisfy the elements of adverse possession; and (2) prove that the claim of ownership is based on a muniment of title.” Long v. Wickett, 50 Mass. App. Ct. 380 , 382 n.3 (2000). The doctrine applies, “only when there has been an entry of disseizin upon a single parcel of land.” Dow, 243 Mass. at 591. Disseisin requires exclusive possession by the claimant. Kershaw, 342 Mass. at 321. The doctrine of color of title is therefore inapplicable in the case of an easement by prescription. See id.

I find that because the Lelievres are unable to establish a valid claim of adverse possession over Area 1 or Area 2, the doctrine of color of title is inapplicable.

The Lelievres shall prepare a recordable plan of Area 1 and Area 2 consistent with this decision, to be recorded within sixty days of the date of this decision, to indicate their prescriptive rights established by this decision.

Judgment to enter accordingly.

Exhibit A

Site Plan


[Note 1] Plaintiff filed a Request to Enter Default against Defendant Sherrill Gould on March 4, 2010, which was allowed on April 20, 2010.

[Note 2] The Disputed Area is shown as the “Former Proposed Street” on a Site Plan created by Snelling & Hammel Associates, Inc., on January 23, 2008 (the “2008 Plan”), and attached to this Decision as Exhibit A. For the purposes of this Decision, the Disputed Area shall be divided into Area 1 (the gravel driveway) and Area 2 (the area between the driveway and Plaintiff Property as indicated on the 2008 Plan), as well as the land south of the driveway extending to the property designated as belonging to Richard Shields (the “Shields Property”).

[Note 3] Plaintiff filed her Motion to Amend Complaint on September 15, 2009, adding a count for adverse possession. At a status conference on December 3, 2009, Plaintiff indicated that she had filed a similar claim in Middlesex Superior Court, along with a tree cutting claim. As a result, the Motion to Amend Complaint was not acted on.

[Note 4] Defendant Property is referred to hereinafter as “Lot A,” as it was initially conveyed in 1979.

[Note 5] Those facts from the Summary Judgment Decision that are relevant to the issues at trial are repeated.

[Note 6] This deed references a plan dated April 27, 1953, which is not included in the record. The parties do not dispute the ownership lines of the First Westby Lot, including the initial ownership rights of the Browns to the relevant land in this case.

[Note 7] The 1958 Plan was also titled, “Tahattawan Park Subdivision Showing Proposed Street Lines” and shows subdivision roads throughout the proposed subdivision. The Disputed Area is shown as a part of the subdivision roadway system, and is located between the Second Westby lot as hereinafter defined, and the Shields Property.

[Note 8] The Agreement allowed the Browns to construct such roadways incrementally, stating that “before selling or transferring land on the proposed streets shown on [the 1958 Plan, the Browns] will construct and complete…so much of the way leading from an existing public way up to an[d] including the land to be sold….” Neither the subdivision nor its roadways were ever built.

[Note 9] The Kotanchik Deed did reference the 1958 Plan, but did so only to except certain lots from conveyance that had already been deeded out.

[Note 10] The 1979 Plan does not distinguish between Area 1 and Area 2, but indicates that the southern boundary is 159.85 feet in length, and that the northern boundary abutting Plaintiff Property is 173.79 feet in length.

[Note 11] The Summary Judgment Decision incorrectly identified this deed as having been recorded at Book 21955. The record is unclear as to how Frances S. Caouette obtained an interest in Lot A.

[Note 12] The record is unclear as to how Janet H. Westby obtained Gordon E. Westby’s interest in the First Westby Lot.

[Note 13] Final approval over the electrical systems was granted on August 8, 1984. No evidence of utility easements were admitted into evidence.

[Note 14] The Pole is identified as “Utility Pole with Conduit” in Area 2 on the attached Exhibit A.

[Note 15] References hereinafter to the Mailbox refer to the mailbox that has stood in the same location since its initial installation in 1986, and is identified on Exhibit A. The record is unclear as to whether the Mailbox presently located in Area 2 is the original mailbox, or is a replacement of the original. However, as this court is convinced that a mailbox has stood in the same location since 1986, it refers to any and all replacements of the original mailbox as the Mailbox.

[Note 16] The water lines are primarily situated in Area 2 just north of the Shields Property on Exhibit A.

[Note 17] Initially Michael Lelievre, a landscaper, operated his business from Lot A. He has since moved his business to another lot.

[Note 18] The width of Lot A along Tahattawan Road in the 1979 Plan is shown as 102 feet.

[Note 19] The Summary Judgment Decision did not rule on Plaintiff’s rights in the Disputed Area relative to the owner of the Shields Property, as they were not party to the suit.

[Note 20] David’s visits stopped during the period of 1970-1975, when he was away, teaching. His walks continued throughout the period 1992-2000, during which his wife owned Plaintiff Property, as well.

[Note 21] Four witnesses for the Lelievres, each of which were predecessors-in-interest to Lot A, testified that they had never seen David, Plaintiff, or the Westbys on their land or in the Disputed Area.

[Note 22] This court finds the testimony of David credible, and that the testimonies of the Leliveres’ predecessors-in-interest—while themselves credible—did not demonstrate that David did not use the property. Rather, this testimony proved simply that they had not seen his use thereof.

[Note 23] The Lelievres’ installation of fencing in 2006 has no effect on the outcome, given the twenty year use requirement.

[Note 24] Asked if he heard the “several witnesses describe the width of the driveway as a car and half wide,” by Plaintiff’s attorney on cross examination, Mr. Lelievre replied in the affirmative. As a follow up, Plaintiff attorney asked, “so the width of a car and a half would be nine to ten feet?” Mr. Lelievre again responded, “[y]es.”

[Note 25] This court is cognizant of the fact that Mr. Lelievre often drives his work vehicles to and from the House. This holding should not be read to exclude commercial vehicles from Area 1, but rather commercial use of Area 1. Commercial use requires more than simply utilizing a vehicle, however registered, as transportation to and from a residence.

[Note 26] Mr. Lelievre indicated that his interest in Area 2 extended beyond the Fence that was erected in 2006 to the southern deeded edge of Plaintiff Property. Though the distance varies, the Fence is installed approximately two feet south of Plaintiff Property’s deeded southern boundary.

[Note 27] This court notes Massachusetts General Law 187 § 5 which affords the owner of property abutting a private way, where that owner possesses rights pertaining to ingress or egress upon such private way, “the right by implication to place, install or construct in, on, along, under, and upon said private way” those objects necessary for the provision of utilities. The use of such objects must not interfere with, or be inconsistent with the existing use of others with deeded rights to use of that private way. Id.

[Note 28] Approval of the House’s electrical systems was granted on August 8, 1984.

[Note 29] An underground water line likewise runs from Tahattawan Road to the House within portions of Areas 1 and 2.

[Note 30] This court notes the recent holding in Commonwealth Elec. Co. v. MacCardell, where the Massachusetts Supreme Judicial Court noted that, “the mere presence of a utility pole does not automatically place a registered landowner on notice that his or her property might be encumbered because the actual owner of a utility pole is not readily ascertainable….” 450 Mass. 48 , 54 (2007) The court’s holding in MacCardell is distinguishable from the case here in that as an owner of registered land, the Defendant in MacCardell was purchasing her land, “free from all encumbrances except those noted on the [registration] certificate.” Id. at 51 (citing Tetreault v. Bruscoe, 398 Mass. 454 , 461 (1986). Here, Plaintiff’s fee interest in Area 2 was not afforded the protections of registered land, and the Pole and its electrical lines were installed while she maintained fee title to the property.

[Note 31] Though the lines delivering electricity to Lot A were mostly located underground, the Pole receives above-ground electrical wires from the street, and stands opposite the Transformer on Lot A. As such, Plaintiff is on notice of the power lines being located within Area 2.

[Note 32] Because David is not a party to this suit, his knowledge of the open and notorious use of Area 2 by owners of Lot A is not itself dispositive of Plaintiff’s knowledge as to the utilities in Area 2. Nevertheless, this court’s finding that the utilities were sufficiently open and notorious that David would have recognized them in Area 2 brings with it the implication that the owner of Plaintiff Property, if reasonably supervising her property, should have known of them as well.