Plaintiffs Robert M. Hayes and Marie A. Hayes (the (Hayeses") and Thomas J. Pratti ("Pratti") and Lisa M. Pratti (the "Prattis") filed their Verified Complaint in 08 MISC 377864 on April 15, 2008, seeking (1) pursuant to G. L. c. 240, §§ 1-5, to require Defendants Christian Dorr ("Dorr") [Note 1] and Linda A. Inniss, Trustee of River Street Trust u/d/t dated March 21, 1995, and recorded with the Northern Berkshire Registry of Deeds at Book 895, Page 1200 (the "River Street Trust") (together, "Inniss"), and their heirs and assigns, to try title, (2) pursuant to G. L. c. 240, §§ 6-10, to remove cloud on title, and (3) pursuant to G. L. c. 231A, seeking a declaratory judgment, all related to Inniss' claims in a right-of-way (the "ROW") across Plaintiffs' properties located in Bridgewater and West Bridgewater, Plymouth County, Massachusetts. A case management conference was held on June 30, 2008. [Note 2] Dorr filed his Answer on July 17, 2008. On the same day the River Street Trust filed its motion to add as necessary parties Thomas L. Ferioli, William P. Ferioli, and Dennis R. Ferioli (the "Feriolis") (together with the Hayeses and the Prattis, "Plaintiffs"), which was allowed at a status conference on July 31, 2008. The River Street Trust filed its Answer and Counterclaim on July 22, 2008, alleging an easement by necessity, a prescriptive easement, adverse possession, and an easement by deed in the ROW. [Note 3] On August 15, 2008, the Hayeses and the Prattis filed their Answers to the Counterclaim.
Dorr filed his Verified Complaint in 08 MISC 381762 on June 30, 2008, naming Plaintiffs, National Grid, Inc. ("National Grid") and Verizon New England, Inc. ("Verizon") as Defendants and (a) seeking a declaratory judgment pursuant to G. L. c. 231A relative to (1) a deeded easement in the ROW, (2) an easement by necessity in the ROW, (3) a prescriptive easement in the ROW, (4) adverse possession of the ROW, and (b) alleging interference by Plaintiffs with his rights in the ROW. [Note 4] Verizon filed an Appearance on July 31, 2008. A case management conference was held on August 15, 2008, at which time 08 MISC 377864 and 08 MISC 381762 were consolidated and a Stipulation of the Parties was filed giving Dorr temporary permission to pass over the ROW by foot and his motor vehicles to the Counterpane Trust Property (as hereinafter defined). Plaintiffs filed their Answers on the same date. National Grid filed its Answer and Jury Demand on September 17, 2008, and Verizon filed its Answer on November 21, 2008. On March 25, 2009, Linda A. Inniss, Trustee of the Counterpane Nominee Trust u/d/t dated May 30, 2002, and recorded with the Worcester Registry of Deeds at Book 26733, Page 328 (the "Counterpane Trust") (together with the River Street Trust, "Defendants") filed a motion to replace Dorr as plaintiff in both 08 MISC 377864 and 08 MISC 381762, which was allowed on March 31, 2009. [Note 5]
The River Street Trust filed its unverified Complaint in Plymouth Superior Court (Docket #09-785B) on June 26, 2009, (a) seeking a declaratory judgment against the Prattis and the Feriolis, including Kathleen Palmieri ("Palmieri") (Pratti's sister), pursuant to G. L. c. 231A relative to the location of the boundary line between property owned by the River Street Trust and property owned by the Prattis and the Feriolis, and (b) alleging trespass against, and the cutting of trees by, the Prattis and the Feriolis on property owned by the River Street Trust. [Note 6] This case was transferred to the Land Court as 09 MISC 416082 on November 9, 2009. A case management conference was held on January 19, 2010.
A pre-trial conference was held on all three cases on February 8, 2010. A site view and the first day of trial at the Brockton District Court were held on May 11, 2010. The second, third and fourth days of trial were held at the Land Court in Boston on May 12 and 13, and June 2, 2010. Post-trial briefs were filed on September 30 and October 5, 2010, and on the latter date the matter was taken under advisement.
Plaintiffs offered testimony by John Delano ("J. Delano") (registered land surveyor), Donald Delano ("R. Delano") [Note 7] (registered land surveyor), William Ferioli ("W. Ferioli") (Plaintiff), and Lawrence Silva ("Silva") (civil engineer). [Note 8] Defendants offered testimony by David A. Santilli ("Santilli") (neighbor), Richard Clayton ("Clayton") (grandson of Michael Asack), Palmieri, Cheryl Germaine ("Germaine") (cousin of the Prattis), Tom Ferioli ("T. Ferioli") (Plaintiff), W. Ferioli, Robert Bossardt ("R.Bossardt"), Marie Hayes ("Hayes") (Plaintiff and daughter of W. Ferioli), Andrew Bagas (former Public Works Director of Bridgewater), David Messaline ("David") (former neighbor and Diane's brother), Kenneth Anderson ("Anderson") (professional land surveyor), Timothy Stone ("Stone") (geologist), Gary Bossardt (G. Bossardt), Pratti (Plaintiff), and Jonathan Bedard (real estate broker, son of Linda A. Inniss, and brother to Attorney Patrick Bedard, counsel to the Defendants). There were 172 exhibits and sixteen chalks submitted. [Note 9]
Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
A. Record title.
The ROW.
1. In the 1850s, Rhoda W. Robinson ("Robinson") owned many parcels of land in the vicinity of, and abutting, the ROW. By deed dated July 1, 1859, and recorded with the Plymouth County Registry of Deeds (the "Registry") at Book 294, Page 221 (the "1859 Deed"), Robinson conveyed a small parcel to the Bridgewater Iron Manufacturing Company (the "Company") for $150 and the grant of a right-of-way. [Note 10]
The 1859 Deed contained the following language:
Reserving to myself my heirs and assigns forever, a right of way of sufficient width for all foot carriage & team travel over a part of these premises hereby conveyed from the land of said Company and joining & between these premises & a highway called Wall Street to the remainder of any adjoining land described in said deed & known as the Willis land, containing about twenty acres, said way commencing at said wall street on the North Easterly side of Sylvanus Walker's land, & running over said land of said Company & granted premises where it is now used to my other land aforesaid, reference being had to a deed of a right of way this day made & given me by said Company over their said adjoining land from said Wall Street to these premises hereby conveyed. [Note 11]
2. J. Delano prepared a plan titled "Division of Property Approval Not Required Form A Plan of Land in West Bridgewater, MA (Plymouth County) Prepared for Christian Dorr" dated March 27, 2008 (the "Delano Plan"). The Delano Plan shows the location of the ROW as asserted by Defendants. [Note 12]
The River Street Trust Property.
3. William Latham ("Latham") (Trustee under the Will of Robinson) conveyed in trust for the benefit of Robinson's daughter, Lydia Bradford ("Bradford"), several parcels of land, including the Pratti Property, the Ferioli Property, and the River Street Trust Property (all as hereinafter defined), by deed dated September 2, 1872, and recorded with the Registry at Book 391, Page 205 (the "1872 Deed").
4. By deed dated June 13, 1881, and recorded with the Registry at Book 467, Page 133 (the "1881 Deed"), Latham conveyed to Hosea Kingman ("Kingman") (newly appointed Trustee under the Will of Robinson for the benefit of Bradford) several parcels of land (the same parcels referenced in the 1872 Deed), including the Pratti Property, the Ferioli Property, and the River Street Trust Property, as follows:
a parcel of improved & woodland situated near the works of the Bridgewater Iron Co. partly in said Bridgewater & partly in West Bridgewater in said County containing 14 acres 3 qrs. & 5 rods, bounded begin at a stake in the Westerly line of the Old Colony Rld. & corner of Wm. Chasen's land; thence in his line North 84º West 6 rods 2 links to a stake; thence South 6º 10' West 5 rods 18 links to a stake in line of James Furguson land; thence in his line North 59º West 8 rods 6 links to a stake; thence South 51º 45' West 12 rods 12 links to a stake; thence South 34º 40' West 6 rods 9 links to land of the Bridgewater Iron Co.; thence North 53º West 10 rods 15 links to a stake; thence South 40º 40' West 11 rods 3 links to the Town River; thence up stream by said river Northwesterly & Northerly to land of James Fitzgerald; thence in his line North 55º 30' East 9 rods 14 links to a stake; South 66º 45' East 47 rods to a stake; thence same course in his line 17 rods to a stake; thence North 30º 30' East 20 rods 6 links to said Rld; thence by said railroad South 5º 50' West 39 rods to the first bounds, or however otherwise bounded said premises being known as the Willis land - including a right of way from these premises to Wall street.
5. By deed dated November 4, 1921, and recorded with the Registry at Book 1405, Page 188 (the "1921 Deed"), George M. Andrews, Annie M. Andrews, Rodney E. Ross, Lina C. Ross, Arthur G. Robbins, Sarah A. Robbins, and Winifred B. Andrews [Note 13] conveyed unimproved property located on Bolton Place in Bridgewater and West Bridgewater, Massachusetts (the "River Street Trust Property") to Sarah Mundle and Minerva Mundle (the "Mundles"), as follows:
a certain parcel of land situated in said Bridgewater and West Bridgewater not far from the above described lot, bounded as follows, viz:- Beginning at a stake at the most southerly point of said parcel in the Easterly line of Town River and in the Northwesterly line of land now or formerly of James Maguire, thence in line of said Maguire's land North 30º 45' East ten rods and eighteen links to a stake; thence in line of said Maguire's land South 51º 30' East six rods and seven links to a stake; thence North 13º 30' East forty rods and nineteen links to a stake; thence North 63º 30' West twenty nine rods and sixteen links to a stake; thence South 56º 30' West nine rods, sixteen links to a stake in line of said River; thence southerly and southeasterly in line of said River to a point of beginning; containing eight acres more or less; being all that is left of the second item described in the trust fund as set off to the said Lydia H. Bradford.
The River Street Trust Property is described as containing eight acres. [Note 14]
6. By deed dated May 15, 1922, and recorded with the Registry at Book 1407, Page 254, the Mundles conveyed the River Street Trust Property to Mary Resimini.
7. By deed dated October 17, 1961, and recorded with the Registry at Book 2901, Page 231, several heirs of Mary Resmini [sic], including Irene Rena Domingos, conveyed the River Street Trust Property to Anthony S. Domingos and Irena [sic] Rena Domingos (the "Domingoses"),
8. By deed dated November 24, 1987, and recorded with the Registry at Book 8153, Page 325, the Domingoses conveyed the River Street Trust Property to Rosemarie Presby ("Rosemarie"), Anthony L. Domingos ("Anthony"), Richard J. Domingos ("Richard"), Joyce T. Domingos ("Joyce"), and Diane LeRose ("LeRose").
9. By deed dated November 25, 1994, and recorded with the Registry at Book 13313, Page 296 (the "1994 Deed"), Rosemarie, Richard, Joyce, and LeRose conveyed the River Street Trust Property to the Domingos Family Realty Trust. [Note 15]
10. The River Street Trust purchased the River Street Trust Property by deed from the Domingos Family Realty Trust dated March 19, March 21, March 24 and March 26, 2008, and recorded with the Registry at Book 35800, Page 274 (the "2008 Deed"). [Note 16]
11. The River Street Trust Property is shown on Bridgewater Assessors Map 2 ("Map 2") as Lot 26, and on Map 62 as Lot 3. The River Street Trust Property is shown on the Delano Plan as "REMAINING LAND OF DOMINGOS FAMILY REALTY TRUST." The River Street Trust Property abuts the Ferioli Property and the Pratti Property on the west and includes land in both West Bridgewater and Bridgewater.
12. As shown on the Delano Plan and labeled "OLD WIRE FENCE REMNANTS FOUND UNDERGROUND", the remnant of a fence (the "Remnant") was uncovered along what Plaintiffs assert is the property line between the River Street Trust Property and the Pratti-Ferioli Property (as hereinafter defined). Plaintiffs argue that the Remnant is what remains of a fence (the "Fence") that was built pursuant to the 1888 Deed (as hereinafter defined), or that the Remnant is what remains of a fence that replaced the Fence.
The Pratti Property.
13. By deed dated June 8, 1888, and recorded with the Registry at Book 561, Page 110 (the "1888 Deed"), Kingman conveyed the Pratti Property and the Ferioli Property (together, the "Pratti-Ferioli Property") to John Ahearn ("Ahearn"). The legal description was as follows:
a certain parcel of land situated partly in said Bridgewater and partly in West Bridgewater, containing five and one-half acres, more or less, and bounded: Begin at the Southeasterly corner of said lot in line of the Old Colony Railroad; thence North 84º West, 6 rods and 2 links to a stake in line of land of William Cleare; thence by said Cleare's land South 6º 10' West 5 rods and 18 links to a stake; thence North 59º West, 8 rods and 6 links to a stake; thence South 67º 45' West 12 rods and 12 links to a stake; thence South 34º 40' West 6 rods and 9 links to a stake; thence Northerly by the fence to a stake in line of land of John Ahearn; thence in line of said Ahearn land, South 66º 45' East 19 rods to a stake; thence by said Ahearn's land North 80º 20' East 20 rods and 6 links to said Old Colony Railroad; thence by said Old Colony Railroad, South 5º 50' West 39 rods and 8 links to the point of beginning. Reserving a right of way for myself, my successors in said trust, my hr's, and their heirs and assigns, over and across the Southwesterly corner of the premises herein conveyed in the way now in use, to and from other land now held by me as trustee from and to the public highway. And said grantee agrees to erect and maintain the fence along the line between the premises herein conveyed and the other land now held by me as trustee so long as said Lydia K. Bradford or her husband shall occupy and improve said adjoining land held by me as trustee as aforesaid.
14. By deed dated March 15, 1892, and recorded with the Registry at Book 655, Page 77, (the "1892 Deed") Ahearn conveyed the Pratti-Ferioli Property to John Hallissey ("Hallissey"). The 1892 Deed contained the following language:
Reserving a right of way for myself, my heirs, and assigns, and for Hosea Kingman, as he is trustee for the benefit of Lydia H. Bradford, under the will of Rhoda W. Robinson, his successor in said trust, my, his and their heirs and assigns, over and across the Southwesterly corner of the premises herein conveyed, in the way now in use to and from other land held in trust by said Kingman from and to the public highway. Being the same premises conveyed to me by said Hosea Kingman . . . and subject to the right of way as described in said deed.
15. By deed dated May 2, 1918, and recorded with the Registry at Book 1310, Page 340, Hallissey's widow, Margaret J. Hallissey, conveyed the Pratti-Ferioli Property to Nora F. Buttermore ("Buttermore").
16. By deed dated April 1, 1925, and recorded with the Registry at Book 1487, Page 420, Buttermore conveyed the Pratti-Ferioli Property to Louis Resimini [sic].
17. By deed dated January 5, 1952, and recorded with the Registry at Book 2187, Page 274, heirs of Louis Resmini [Note 17] conveyed the Pratti-Ferioli Property to Louisa Resmini.
18. By deed dated December 17, 1956, and recorded with the Registry at Book 2546, Page 189, Louisa Resmini conveyed the Pratti-Ferioli Property to Geraldine Resmini and Dorothy R. Pratti.
19. By deed dated June 29, 1989, and recorded with the Registry at Book 9243, Page 120, Geraldine Resmini conveyed the Pratti-Ferioli Property to Pratti.
20. By deed dated October 25, 1989, and recorded with the Registry at Book 9425, Page 118, (the "1989 Deed") Pratti conveyed the Pratti-Ferioli Property to the Prattis. The deed states that the properties are "subject to and with the benefit of rights, rights of way, easements, restrictions, reservations, takings and all matters of record insofar as in force and applicable."
21. The southerly portion of the Pratti-Ferioli Property (the "Pratti Property") is located entirely in Bridgewater, the town line being its boundary with the Ferioli Property, which abuts it to the north. The River Street Trust Property abuts the Pratti Property to the west. The Pratti Property is shown on Map 2 as Lot 27, labeled on the Delano Plan as "THOMAS J. & LISA M. PRATTI". A house known as 39 Bolton Place is located on the westerly side of the Pratti Property. The Pratti Property contains approximately 2.152 acres.
The Ferioli Property.
22. The Feriolis purchased unimproved property located on Bolton Place, West Bridgewater, Massachusetts (the "Ferioli Property") by deed from the Prattis dated November 30, 2000, and recorded with the Registry at Book 19153, Page 275 (the "Ferioli Deed").
23. The Ferioli Property is the northerly portion of the Pratti-Ferioli Property, and is located in West Bridgewater, the town line being its boundary with the Pratti Property, which abuts it to the south. The River Street Trust Property abuts the Ferioli Property to the west. The Ferioli Property is shown as Lot 4 on West Bridgewater Assessors Map 62, and labeled on the Delano Plan as "THOMAS L., DENNIS R. & WILLIAM P. FERIOLI". The Ferioli Property contains approximately 2.934 acres. The Ferioli Deed contains an easement for the use of the ROW "for all purposes for which streets and ways are or may hereafter be used in the Town of Bridgewater, together with all others lawfully entitled thereto." [Note 18]
The Hayes Property.
24. By deed dated July 31, 1889, and recorded with the Registry at Book 582, Page 374 (the "1889 Deed"), property (the "Hayes Property") was conveyed to James Maguire by John E. Sanford, Luke P. Willard and Arthur E. Denison, Trustees of a trust dated September 23, 1886, between the Bridgewater Iron Company, Sanford, Willard and Denison, and the creditors of the Bridgewater Iron Company. The property was described as
a certain piece or parcel of land with the dwelling house thereon situated on a private way known as Bolton Place leading southwesterly from Wall Street so called in said Bridgewater . . .Together with a right of way over said Bolton Place to and from said Wall Street and reserving a right of way from the the [sic] Northerly end of Bolton Place to land of . . . Bradford.
25. By deed dated April 5, 1926, and recorded with the Registry at Book 1503, Page 516, Mary A. Maguire, Maguire's heir, conveyed the Hayes Property to Joseph Pratti.
26. By deed dated December 19, 1962, and recorded with the Registry at Book 2989, Page 276, Harold Pratti, executor under the will of Joseph Pratti, conveyed the Hayes Property to Raleigh J. Pratti and Shirley M. Pratti.
27. By deed dated July 18, 1995, and recorded with the registry at Book 13702, Page 2, Shirley M. Pratti conveyed the Hayes Property to the Hayeses. [Note 19]
28. The Hayes Property is shown as Lot 17 on Map 2. A portion of the Hayes Property is shown on the Delano Plan, labeled "ROBERT M. & MARIE A. HAYES". The Hayes Property abuts the River Street Trust Property to the south.
The Counterpane Trust Property.
29. By deed dated May 11, 1867, and recorded with the Registry at Book 343, Page 36 (the "Howard Deed"), Horatio Howard conveyed property (the "Counterpane Trust Property") to James Fitzgerald. The Howard Deed conveys "[a]lso a right of way two rods wide by the Easterly side of the tract of land first above named and to extend northerly to the highway leading by the dwelling house of Charles Beals where the same has been staked out."
30. By deed dated April 27, 1885, and recorded with the Registry at Book 519, Page 244, James Fitzgerald conveyed the Counterpane Trust Property to Ahearn.
31. Ahearn conveyed the Counterpane Trust Property to Philip Chassey ("Chassey") by deed (the "Ahearn Deed") dated March 26, 1894, and recorded with the Registry at Book 1153, Page 441. The Ahearn Deed included the call "thence North 24( 45' East 22 rods to an old road called Comfort Bridge Road." The Ahearn Deed also contained the following language: "[a]nd I also convey a right of way in the lane now used to and from said several lots from and to Wall Street by the house of Lawrence Cleare."
32. Chassey conveyed the Counterpane Trust Property to Manuel M. Cordeiro ("Cordeiro") by deed dated June 3, 1913, and recorded with the Registry at Book 1153, Page 441.
33. Cordeiro conveyed the Counterpane Trust Property to Antonio Braga ("Braga") by deed dated April 1, 1926, and recorded with the Registry at Book 1504, Page 98 (the "Braga Deed"). In the Braga Deed, Cordeiro reserved "a ten foot right of way along the southerly line of conveyed premises."
34. Braga sold the Counterpane Trust Property to Michael Bolus Asack ("Asack"), Trustee, by deed dated April 12, 1926, and recorded with the Registry at Book 1506, Page 37 (the "Asack Deed"). The Asack Deed makes no mention of a dwelling on the Counterpane Trust Property.
35. By deed dated December 29, 1969, and recorded with the Registry at Book 3569, Page 245, Emily Clayton ("Emily"), Asack's heir, [Note 20] conveyed the Counterpane Trust Property to Paul S. Leonard ("Leonard").
36. By deed dated April 1, 1970, and recorded with the Registry at Book 3584, Page 438, Leonard conveyed the Counterpane Trust Property to David H. Jellison ("Jellison").
37. By deed dated June 4, 1970, and recorded with the Registry at Book 3595, Page 648, Jellison conveyed the Counterpane Trust Property to William H. Bossardt ("William") and Barbara Bossardt (the "Bossardts"). The Bossardts conveyed the Counterpane Trust Property to William by deed dated October 19, 1981, and recorded with the Registry at Book 5149, Page 275.
38. By deed dated July 15, 1982, and recorded with the Registry at Book 5180, Page 64, William conveyed the Counterpane Trust Property to William and Sheila G. Debettencourt ("Sheila"). By deed dated September 15, 1992, and recorded with the Registry at Book 22195, 316, William and Sheila conveyed the Counterpane Trust Property to William.
39. By deed dated Feberuary 9, 2004, and recorded with the Registry at Book 27565, Page 187, R. Bossardt, executor under William's will, conveyed the Counterpane Trust Property to Dorr.
40. By deed dated October 11, 2007, and recorded with the Registry at Book 36544, Page 339, Dorr conveyed the Counterpane Trust Property to the Counterpane Trust.
41. The Counterpane Trust Property contains approximately 10.7 acres, and is labeled on the Delano Plan as "PARCEL 1 REMAINING LAND OF CHRISTIAN DORR", "PARCEL 2 REMAINING LAND OF CHRISTIAN DORR", "PARCEL 'X'", "PARCEL 'Y'", and "PARCEL 'Z'". The southerly boundary of the Counterpane Trust Property abuts the River Street Trust Property and the Ferioli Property.
B. Location and width of the ROW.
42. In 1885, the Massachusetts Highway Department (the "Highway Department") prepared a topographic plan (the "1885 Plan"). In its lower left corner, the 1885 Plan shows an unlabeled structure on the Counterpane Trust Property and an unlabeled way extending southerly from the Counterpane Trust Property. Such structure and such way correspond to the location of the House (as hereinafter defined) and the ROW.
43. An aerial photograph taken in 1934 (the "1934 Aerial") by the Highway Department shows at least one unlabeled structure on the Counterpane Trust Property and an unlabeled way extending southerly from a structure on the Counterpane Trust Property. Such structure and such way correspond to the location of the House (as hereinafter defined) and the ROW. The 1934 Aerial also shows the Town River running to the west of the Counterpane Trust Property and railroad tracks to the east of the Counterpane Trust Property, running northerly.
44. Aerial photographs taken in 1957 (the "1957 Aerial"), 1969 (the "1969 Aerial"), and 1971 (the "1971 Aerial") by the Highway Department show multiple structures on the Counterpane Trust Property, an unlabeled way extending southerly from such structures on the Counterpane Trust Property, and railroad tracks to the east of the Counterpane Trust Property. Such structures and such way correspond to the location of the House and the ROW. A portion of the Town River is visible crossing the southwesterly corners of the 1957 Aerial, the 1969 Aerial, and the 1971 Aerial.
45. As shown on the Delano Plan, the ROW extends northwesterly from Wall Street. The Town of Bridgewater ("Bridgewater") maintains a paved portion of the ROW known as Bolton Place that runs from Wall Street to a location near the Hayes Property. [Note 21]
46. As shown on the Delano Plan, the ROW bends and runs northerly into the Town of West Bridgewater ("West Bridgewater") and to a location near the Counterpane Trust Property. As shown on the Delano Plan and labeled "EXISTING WOODS ROAD 8' WIDE", the ROW runs northerly from the location where the pavement ends onto the Counterpane Trust Property.
47. From at least 1945 (the latest that Clayton began to reside at the House) until at least 1979 (when the House burned), the unpaved portion of the ROW was approximately one car width wide. [Note 22]
48. The Commonwealth of Massachusetts Department of Public Works Road and Street Inventory (the "Road Inventory"), [Note 23] used by the Massachusetts Department of Transportation (the "DOT"), for Bridgewater indicates that Bolton Place has a twenty-five foot right of way on the ground. The Road Inventory for West Bridgewater indicates that Bolton Place has a thirty foot right of way on the ground.
49. A letter from Mark Berger ("Berger") of the Massachusetts Department of Transportation addressed to Silva and dated May 7, 2010 (the "Berger Letter"), states: "At some point in the past, Bolton Place was incorrectly listed in the Road Inventory as an existing roadway. Based on our current file, Bolton Place does not exist in West Bridgewater and was deleted in 2009." [Note 24]
50. As shown in photographs in the record, a twenty-five foot long trench ("Trench 1") was dug perpendicular to the ROW and near the house on the Pratti Property. About one foot below ground level, the walls of Trench 1 contained a layer of soil that was darker in color than the soil above such layer.
51. As shown in photographs in the record, a twenty-five foot long trench ("Trench 2") was dug perpendicular to the ROW, north of Trench 1. [Note 25] Near the ground level, the walls of Trench 2 contained a layer of soil that was darker in color than the soil below it and that was similar in color to the soil found in the walls of Trench 1 about one foot below the surface. Such layer was approximately fifteen feet wide.
52. As shown on a sketch labeled "CROSS-SECTION OF TRENCH NO.2" and "Prepared by: StoneHill Environmental, Inc. Project No. 29054", Stone measured levels of soil compaction in Trench 2 that decreased from four and one-half tons per square foot near the center of Trench 2 to less than one ton per square foot near each side of Trench 2.
C. Comfort Bridge Road.
53. At some date prior to 1834, [Note 26] a road ("Comfort Bridge Road") was laid out that ran easterly from a bridge (the "Bridge") across the Town River along the northerly boundary of the Counterpane Trust Property toward East Street. The exact location of Comfort Bridge Road is not clear from the record. [Note 27] As represented on the Delano Plan, Comfort Bridge Road is labeled "OLD ROAD."
54. The Bridge no longer exists and there is no other bridge in its place.
55. Comfort Bridge Road was abandoned by the town of West Bridgewater in 1834. [Note 28]
56. Comfort Bridge Road has now deteriorated to the extent that its original location is uncertain.
D. Pedestrian use of the ROW.
57. A house (the "House") was built on the Counterpane Trust Property at an unknown date prior to 1945. [Note 29] The House was commonly known as 38 Bolton Place.
58. A birth certificate (the "Birth Certificate"), dated April 2, 1927, states that James MacLean ("Jimmy") was born March 31, 1927, on the Counterpane Trust Property. [Note 30] The Birth Certificate also states that Jimmy's parents are John MacLean and Ann [sic] MacDonald MacLean, and that they reside at 38 Bolton Place. [Note 31]
59. A death certificate (the "Death Certificate"), dated August 5, 1930, states that Delia Bolus Asack ("Delia") died August 4, 1930, on the Counterpane Trust Property. [Note 32] The Death Certificate names Asack as Delia's father and indicates that she was a minor.
60. The ANNUAL REPORT OF THE Town Officers OF THE TOWN OF West Bridgewater 1931 lists Asack as a resident of "Bolton Place."
61. Clayton (Asack's grandson) testified that he resided at the House as a child between 1944 or 1945 and 1946 or 1947 with Asack, Anna MacLean ("MacLean"), [Note 33] and Jimmy. Clayton also testified that "Billy MacLean lived there for a short while."
62. Clayton testified that the people living in the House during the years he lived there (1944 or 1945 to 1946 or 1947) accessed the House by way of the ROW and that "whenever [Asack] had to go anywhere, he would go down to Bolton Place" by way of the ROW.
63. At some date after 1945 the House began to be served by utility poles from the direction of East Street. [Note 34]
64. Santilli testified that he lived at 24 Bolton Place from his birth in 1946 until 1968 and traveled the ROW by foot "forty or fifty times a year" during unspecified years to explore the woods, to access fields where he played baseball and football, and to access a pond for skating. [Note 35]
65. T. Ferioli testified that he was born in 1947 and has resided at 25 Bolton Place "[v]irtually all [his] life, except for one year," and that he traveled the ROW by foot as a child to access a pond for ice skating.
66. The Town of West Bridgewater List of Men and Women 20 Years of Age or Over as Compiled by the Board of Registrars (the "Town List") for the year 1951 lists at 38 Bolton Place: "Asack, Mike B"; "MacLean, Anna"; and "MacLean, James". [Note 36] Asack, MacLean, and Jimmy are also listed at 38 Bolton Place in the Town List for the years 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, and 1961. [Note 37]
67. Diane testified in her deposition that she was born in 1943 and has lived on Bolton Place from 1953 until the time of her deposition in 2009. Diane testified that she traveled the ROW by foot to pick blueberries on the Counterpane Trust Property, at least on one occasion with her cousin Bill Ferioli (possibly W. Ferioli). [Note 38] Diane testified that on such occasion Asack gave them permission to be on his land, once he knew who they were. Diane further testified that she traveled the ROW by foot to access a pond for ice skating. [Note 39]
68. Palmieri testified that she was born in 1955 and lived on Bolton Place from 1957 to 1979. Palmieri testified that she traveled the ROW by foot as a child to access a pond and the Counterpane Trust Property, but did not recall how frequently.
69. Pratti testified to seeing Emily walking on the ROW on unspecified dates after 1959 "[o]nce every two, three, four, five days. Not daily . . ." [Note 40]
70. Pratti testified that he traveled the ROW after 1959 by foot "maybe once a year, [a] very few times" with his mother to visit Emily and Asack, and "with just Emily once in a great while."
71. Germaine testified to seeing Asack walking on Bolton Place "once in a while," after 1960. [Note 41]
72. Germaine testified to traveling the ROW by foot "maybe three or four times" between the ages of "ten and maybe fifteen" (i.e., approximately 1960-1965) to visit Emily and Asack with a friend who was related to the Asack family.
73. Asack died on January 15, 1964. Asack's death certificate states that he was a resident of 38 Bolton Place and indicates that Asack's "[l]ength of stay" was forty years, both in his "place of death" and his "place of residence." [Note 42]
74. Following Asack's death, Emily leased the Counterpane Trust Property to multiple renters.
75. The Town List for the year 1965 lists at 38 Bolton Place "Smith, William J." The Town List for the years 1966 and 1967 indicates that 38 Bolton Place is "Vacant." The Town List for the year 1968 lists at 38 Bolton Place "White, Columbus B." and "White, Beverly W." In December 1969, Emily sold the Counterpane Trust Property to Leonard. The Town List for the year 1969 lists at 38 Bolton Place "Stennes, Florence" and "Stennes, Henry R."
76. The Town List for the year 1970 lists at 38 Bolton Place "Stennes, Florence".
77. In June of 1970, Leonard sold the Counterpane Trust Property to the Bossardt family. [Note 43]
78. Members of the Bossardt family resided in the House from an unknown date (approximately 1970) until the House burned down. [Note 44]
79. A West Bridgewater Residential Property Field Card, dated 1971, (the "Field Card"), lists the age of the House as "150." [Note 45]
80. The House burned down on November 4, 1979, leaving only a foundation. [Note 46]
81. G. Bossardt and R. Bossardt both testified that a trailer was put on the Counterpane Trust Property at some unspecified date after the House burned down. R. Bossardt testified that he occupied such trailer occasionally and that it never had utilities connected to it. G. Bossardt testified that such trailer disappeared on an unspecified date.
E. Vehicular use of the ROW.
82. Asack did not own a car while residing on the Counterpane Trust Property. [Note 47]
83. Clayton and W. Ferioli both testified that Jimmy owned a car while residing on the Counterpane Trust Property (i.e., from before 1944 or 1945 until at least 1961), with which he traveled the ROW. [Note 48]
84. Clayton testified that residents of the Counterpane Trust Property plowed the ROW with a horse and drag during the time that he resided on the Counterpane Trust Property (i.e., 1944 or 1945 to 1946 or 1947).
85. Clayton testified that the doctor traveled the ROW by vehicle to access the House an unspecified number of times on unspecified dates.
86. Clayton and Germaine both testified that Emily Clayton ("Emily") (Clayton's mother and Asack's daughter) traveled over the ROW by car when she visited Asack, which Clayton testified was "occasionally."
87. Clayton testified that after he moved away from the Counterpane Trust Property in 1946 or 1947 he traveled the ROW by car with Emily to visit Asack, but "not often."
88. Diane testified in her deposition that she saw "a couple of cars" on the Counterpane Trust Property on at least one unspecified date after 1953 and before Asack's death in 1961.
89. Santilli testified to seeing unidentified vehicle traffic over the ROW "a few times a year." Santilli estimated that the first year that he saw a car travel over the ROW he was eight or ten years old (i.e., between 1954 and 1956).
90. Clayton testified that he traveled the ROW by vehicle "maybe . . . a couple of times a year" to visit Asack when Clayton was seventeen or eighteen years old (i.e., in 1957 or 1958).
91. Clayton testified that he was drafted in 1963 and traveled the ROW by vehicle to visit Asack when on leave from military service.
92. Clayton and T. Ferioli testified that West Bridgewater plowed the ROW in order to remove Asack's body (i.e., in 1964).
93. While the Bossardt family resided in the House (approximately 1970 to November 4, 1979), members of the Bossardt family traveled the ROW by both vehicle and foot to access the Counterpane Trust Property. [Note 49]
94. Diane testified in her deposition that when the House burned (November 4, 1979) fire trucks accessed the Counterpane Trust Property by way of the ROW.
95. After November 4, 1979, members of the Bossardt family, including Dorr, traveled the ROW from time to time to access the Counterpane Trust Property. [Note 50]
96. On direct examination, R. Bossardt testified that "for a few years" after the fire (1979) he traveled the ROW by vehicle to visit the Counterpane Trust Property "a couple of times a month." Later he testified that he returned "several times a year." On cross examination he stated that he went back "at least once a month, maybe sometimes once every three months, something like that."
97. G. Bossardt testified that after the fire (1979) he would visit the Counterpane Trust Property "[t]hree times a year, maybe."
98. Hayes testified to seeing Dorr traveling the ROW by vehicle in 2006.
99. Pratti and G. Bossardt had a conversation in which Pratti objected to G. Bossardt driving over his lawn when accessing the Counterpane Trust Property by way of the ROW.
100. On May 8, 2008, Pratti blocked the ROW with a cable wire in the location of his property and placed "No Trespassing" signs on the ROW. [Note 51]
*******************************
Defendants allege that the River Street Trust has a deeded right of way over the ROW to access the River Street Trust Property. Defendants also allege that the Counterpane Trust has both deeded rights and prescriptive rights to travel over the ROW to access the Counterpane Trust Property, as well as title to the ROW by adverse possession. Defendants also dispute the location of the boundary that separates the River Street Trust Property from the Ferioli Property, the Pratti Property, and the Hayes Property. Plaintiffs allege that Defendants have no deeded rights in the ROW, and that Defendants have no prescriptive rights in the ROW, inasmuch as the ROW was used with permission. Plaintiffs also contend that Defendants do not have title to the ROW, inasmuch as Defendants did not make exclusive use of the ROW. Plaintiffs also challenge the boundary of the River Street Trust Property asserted by Defendants. I shall address each of these issues in turn.
The boundary of the River Street Trust Property.
The metes and bounds description in the 1888 Deed (the first deed to the Pratti-Ferioli Property) contains the ambiguous course "thence Northerly by the fence to a stake in line of land of John Ahearn". [Note 52] Such course forms the River Street Trust Property's boundary with the Pratti Property and the Ferioli Property. Such boundary also determines the point at which the River Street Trust Property, the Pratti Property, and the Hayes Property meet. [Note 53] Plaintiffs argue that the Delano Plan shows this boundary correctly, based on their interpretation of the 1888 Deed, which interpretation they assert is confirmed by the location of the Remnant, the 1921 Deed, and the acreage conveyed by the 1888 Deed. Defendants challenge Plaintiffs' interpretation of the 1888 Deed and contend that Anderson Plan shows the correct boundary. Defendants also argue that the Remnant is not a reliable marker, that the 1921 Deed is immaterial as a junior deed, and that the acreage recited by the 1888 Deed is merely an approximation and therefore insignificant.
Plaintiffs argue that the 1888 Deed supports the Delano Plan in at least two ways. First, Plaintiffs argue that Kingman's reservation in the 1888 Deed of a right of way "over and across the southwesterly corner" of the Pratti Property indicates that the Delano Plan shows the correct boundary. The Delano Plan locates such a right of way on the Pratti Property, but the Anderson Plan places the boundary to the east of the right of way, making the reservation unnecessary. [Note 54] Secondly, Plaintiffs assert that they have located the Remnant (referenced in the 1888 Deed) or a replacement fence in the same location. The boundary line shown on the Delano Plan is aligned with the Remnant.
Defendants argue that Kingman's reservation of a right of way over the southwesterly corner of the Pratti Property carries no weight because it is not a monument, course, distance, quantity or area. Defendants further argue that the 1888 Deed clearly describes a complete parcel (the Pratti-Ferioli Property), except for the westerly boundary, which is defined only by the ambiguous call. Since the 1888 Deed establishes two points that can be connected to complete the description, Defendants contend that the most reasonable boundary would be a straight line running northerly between those two points, as shown on the Anderson Plan. [Note 55] Defendants argue that this is a better interpretation of the 1888 Deed because it requires only one deed call and one monument (the land of John Ahearn) but the Delano Plan's boundary line bends, requiring two deed calls and two abutters as monuments, the land of the Grantor and the Hayes Property.
"The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Patterson v. Paul, 448 Mass. 658 , 665 (2007) (quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998)). The parties agree that the handwritten 1888 Deed contains scrivener(s errors, especially the ambiguous course that did not specify direction precisely or distance at all; [Note 56] therefore, this court must determine the most reasonable boundary line on the basis of the available evidence.
Since the 1888 Deed is an "obviously confused instrument" and "ambiguous in effect," this court may refer "to relevant extrinsic evidence bearing upon [the intent of the parties to the 1888 Deed], such as the circumstances with respect to the ownership of adjacent parcels, the contents of other instruments in the chain of title, and the subsequent action of the parties." Ellis v. Wingate, 338 Mass. 481 , 485 (1959).
When interpreting a deed with regard to boundary questions, more weight is given to monuments than to courses, and courses are given more weight than distances. Morse v. Chase, 305 Mass. 504 , 507 (1940). Since a fence is a monument, [Note 57] the words "by the fence to a stake in line of land of John Ahearn" must carry greater weight than the imprecise direction "northerly." [Note 58] Therefore, the location of the Fence bears strongly on interpretation of the 1888 Deed relative to the boundary, to the extent that such location can be reasonably determined. Moreover, contrary to Defendants' statement, the right of way reserved by Kingman in the 1888 Deed is itself a monument. [Note 59] See McGovern v. McGovern, 77 Mass. App. Ct. 688 , 696 n.14 (2010); see also Haskell v. Friend, 196 Mass. 198 , 201 (1907). Therefore, the reference in the 1888 Deed to the right of way provides strong support for the Delano Plan.
Plaintiffs argue that they have accurately determined the location of the Fence, on the basis of excavation suggested by the 1921 Deed. [Note 60] The 1921 Deed (the first deed to the River Street Trust Property) conveyed land described as a remainder of land conveyed by the 1888 Deed and thereby provided a precise description of the easterly boundary of what became the River Street Trust Property. R. Delano testified that he searched along such boundary and found fence remains (the Remnant) buried six to twelve inches underground and "deteriorated quite a bit," running from the boundary of the River Street Trust Property and the Counterpane Trust Property to approximately the town line between West Bridgewater and Bridgewater. R. Delano stated his belief that additional fencing would have been found if the area had not been disturbed by construction on the Pratti Property and also used as a junkyard. [Note 61]
Defendants first challenge Plaintiffs' reliance on the 1921 Deed, arguing that it is a junior deed relative to the 1888 Deed and does not provide any evidence of the intent of the parties to the 1888 Deed. Defendants are correct that the 1921 Deed shows little evidence of the intent of the grantor of the 1888 Deed, at least regarding the boundary line. However, it is not necessary to rely on whatever intent the 1921 Deed shows. The 1888 Deed indicates intent through its reference to the Fence; the 1921 Deed merely suggests a plausible location of the Fence.
Defendants also challenge the evidence of the Remnant on several grounds. First, Defendants argue that there is no way to confirm that the Remnant found by Plaintiffs corresponds to the Fence or a replacement fence. Defendants point out that the Remnant was not tested for age and assert that it would not be abnormal to find fencing unrelated to property boundaries on farmland. Furthermore, Defendants assert that the Fence as described in the 1888 Deed would have stretched the entire length of the River Street Trust Property, but the Remnant does not reach the Hayes Property and was only uncovered in sections. Moreover, Defendants argue that a fence of the correct length that was in line with the discovered Remnant would have improbably crossed an existing right of way. Finally, Defendants maintain that the Remnant is in conflict with the 1888 Deed, which indicates that the fence should be "along the line between the premises herein conveyed and the other land now held by me as trustee." Defendants point out that the Hayes Property was owned by the Bridgewater Iron Company in 1888, not by Kingman, the grantor; therefore, Defendants argue that the Delano Plan is incorrect to show the Fence abutting the Hayes Property.
While it is true that not every fence corresponds to a property line, it is significant that the Remnant was found along the line indicated by the 1921 Deed. Furthermore, Defendants do not argue that Plaintiffs found a particular or known wrong fence. [Note 62] R. Delano did not stumble onto the Remnant by chance; he looked in a specific location on the basis of other persuasive evidence. Although the Remnant was not tested for age, it was both substantially submerged and deteriorated; if the Fence was replaced, it is reasonable to assume that its location remained substantially the same.
Contrary to Defendants' assertion, the Remnant provides persuasive evidence for the boundary as shown in the Delano Plan even though the Remnant was not found along the entire boundary. Plaintiffs suggested plausible reasons that additional fence remains were not discovered. Furthermore, it is possible that the Fence was never built in its entirety. [Note 63] The boundary line as shown on the Delano Plan would cross a right of way that appears on the 1885 Plan. Arguably, it might be unusual for an 1888 Deed to prescribe a fence across an existing right of way. However, such a fence could easily have a gap or a gate - or not have been built in that location.
Furthermore, nothing in the language of the 1888 Deed necessarily conflicts with a boundary fence running along the Hayes Property. Defendants are correct that the 1888 Deed states that "grantee agrees to erect and maintain the fence along the line between the premises herein conveyed and the other land now held by [Kingman] as trustee." However, this language does not prohibit a continuation of such a fence along the Hayes Property. Defendants' argument against such a continuation rests on their questionable assumption that the Fence corresponds exactly to a straight boundary line that completes the metes and bounds description in the 1888 Deed. Aside from the ambiguous call, nothing in the 1888 Deed indicates that the Fence is coextensive with whatever boundary lines complete the metes and bounds description. Likewise, if a course were missing from the 1888 Deed, it would presumably run along the Hayes Property and could be marked by a fence or not. At any rate, it is clear from the 1888 Deed that the parties intended a fence between the River Street Trust Property and the Ferioli-Pratti Property. Presumably the grantor intended the Fence more as a physical barrier than as a way to precisely define the grantee's boundary line with a third party, especially since the 1888 Deed attempts a metes and bounds description. As shown on the Delano Plan, any fencing that would run along the Hayes Property would be a very small portion of any fence that ran the entire length of the River Street Trust Property, and Kingman would have had little reason to consider such fencing separately or care that it was maintained. Therefore, the designation "other land held by me as trustee" is more reasonably understood as a reference to the River Street Trust Property than as part of a precise description of where the Fence would be located, [Note 64] especially when the 1888 Deed provides this location of the Fence separately from the legal descriptions of the parcel and the reserved right of way.
Plaintiffs also argue that the Delano Plan is more consistent with the acreage conveyed by the 1888 Deed. R. Delano testified that he calculated the area of the Pratti Property as 4.5 acres according to the Bougioukas Plan, but calculating on the basis of the boundary line established by the 1921 Deed resulted in an area of 5.28 acres, closer to the 5.5 acres specified in the 1888 Deed. Defendants assert that the change in the Pratti Property's acreage resulting from use of the Delano Plan is not significant, especially because the area still differs from the 1888 Deed. [Note 65]
The 1888 Deed conveyed a parcel "containing five and one-half acres, more or less." The Delano Plan comes closer to that approximation than does the Anderson Plan. Although "[i]t is seldom that area can be a controlling factor," Holmes v. Barrett, 269 Mass. 497 , 502 (1929), the difference provides additional support for the Delano Plan. [Note 66]
As a result of the foregoing, I find that the River Street Trust Property's boundary with the Hayes Property, the Pratti Property, and the Ferioli Property is as shown on the Delano Plan. [Note 67] Consequently, the fee to the ROW is owned by the Feriolis, the Prattis, and the Hayeses where the ROW crosses their respective properties. [Note 68]
Easement by deed benefitting the River Street Trust Property.
Defendants assert - and Plaintiffs concede - that the River Street Trust has a deeded easement (the ROW) to access the River Street Trust Property pursuant to the 1859 Deeds, and that such easement was reserved in the 1888 Deed. Moreover, all of the testifying experts agreed that the easement conveyed by the 1859 Deeds exists, has never been extinguished, and benefits the River Street Trust Property. However, the parties disagree about the scope and location of the easement.
The earliest descriptions of the ROW do not describe precisely either the location or the width of the ROW. The 1859 Deed describes the ROW as
a right of way of sufficient width for all foot carriage & team travel over a part of these premises hereby conveyed from the land of [the Bridgewater Iron Manufacturing Company] and joining & between these premises & a highway called Wall Street to the remainder of any adjoining land described in said deed & known as the Willis Land.
The 1888 Deed recites the location of the ROW as "a right of way . . . over and across the Southwesterly corner of the premises herein conveyed in the way now in use, to and from other land now held by me as trustee from and to the public highway," implying that the ROW came into use as a specific, customary way between 1859 and 1888. A year later, in the 1889 Deed, the ROW was named for the first time as Bolton Place.
The 1859 Deeds state that the easement is for "all foot carriage & team travel." On the basis of Clarkin v. Duggin, 292 Mass. 263 (1935), Plaintiffs argue that team travel cannot include automobiles. [Note 69] The relevant deed in Clarkin provided for a "right of way across . . . land (with teams only)." Id. at 264. The Clarkin court held that this provision could not permit automobiles, because that construction "would extend the meaning of the word 'teams' beyond what was intended by the parties at the time the easement was granted, and many years before automobiles came into existence." Id. at 266.
The language in the 1859 Deeds is not as restrictive as the language found in Clarkin, and is therefore distinguishable. Unlike the deed in Clarkin, the 1859 Deed did not state "all foot carriage & team travel" as a limitation. [Note 70] The 1859 Deed merely mentions what traveled the ROW at the time of conveyance. In Swensen v. Marino, 306 Mass. 582 , 587 (1940), the Supreme Judicial Court stated that it "should be very slow to hold that even ancient rights of way, not expressly restricted as to the type of vehicle, could not be employed at all for the means of transportation in common use by a succeeding generation." See also Deacy v. Berberian, 344 Mass. 321 , 322, 327-28 (holding that after Swensen, Clarkin had no application relative to a Land Court decree establishing "an easement to pass on foot or with a team over a way twelve feet in width . . ."). I therefore find that the River Street Trust Property has an easement pursuant to the 1859 Deeds to travel over the ROW and that such easement is not limited to team travel and is not limited to farming purposes.
Since this court finds that the River Street Trust Property has a deeded easement to travel over the ROW, this court must also determine the width of the ROW. [Note 71] Defendants argue that the ROW has a width of either thirty-three feet (two rods) or twenty-five feet. Defendants contend that the ROW is thirty-three feet wide partly on the basis of the Howard Deed, which conveys a right of way two rods wide and extending northerly from the line that separates the Counterpane Trust Property from the River Street Trust Property. Defendants argue that the ROW extends southerly from the right of way conveyed by the Howard Deed, maintaining the width of two rods. Furthermore, Defendants assert that two rods has historically been a customary road width in Massachusetts. In the alternative, Defendants argue for at least twenty-five feet because that is the width of the paved portion of the ROW. In addition, Defendants assert that a width of twenty-five feet is consistent with the levels of soil compaction that Stone measured. Defendants argue that the layers of darker soil found in Trench 1 and Trench 2 were a roadbed, the layer in Trench 1 being more submerged as a result of disturbances caused by construction on the Pratti Property. Moreover, Defendants point out that the Road Inventory for Bridgewater indicates that Bolton Place has a twenty-five foot right of way, and that the Road Inventory for West Bridgewater indicates that Bolton Place has a thirty foot right of way.
Plaintiffs argue that the easement conveyed by the Howard Deed for the benefit of the Counterpane Trust Property has no bearing on the width of the ROW running southerly from the Counterpane Trust Property, since such easement is a right of way that extends northerly. Moreover, on the basis of the Berger Letter, Plaintiffs challenge the validity of the Road Inventory relative to the ROW. Furthermore, Plaintiffs point out that the materials in the alleged roadbed were byproducts of the nearby Bridgewater Iron Manufacturing Company, and therefore might be found scattered anywhere in the area. In addition, Plaintiffs assert that the levels of soil compaction measured in Trench 2 indicate that not all of the width of any roadbed was actually traveled. I will consider these arguments in turn.
The parties have focused much of their arguments relative to the width of the ROW on evidence of actual use of the ROW. However, with respect to the River Street Trust Property, the ROW is a deeded easement and the language of the deed controls. See Patterson, supra. This court must therefore determine the meaning of "sufficient width for all foot carriage & team travel," relative to the intent of the parties to the 1859 Deeds. Evidence of actual use is relevant to the extent that it shows the intent of the parties to the 1859 Deeds.
The easement in the Howard Deed and the Road Inventory do not shed much light on the intent of the parties to the 1859 Deeds. As Plaintiffs argue, the Howard Deed undeniably states that it conveys a right of way "to extend northerly to the highway." The Howard Deed nowhere states that such right of way continues southerly, let alone at any particular width. Although it is not unreasonable to assume that a way running southerly from such right of way might continue at the same width, that assumption does not provide an adequate basis for finding an easement thirty-three feet wide all the way to the paved portion of the ROW. [Note 72] Similarly, the fact that the paved portion of the ROW is twenty-five feet wide does not justify an assumption that it continued at the same width after the pavement ended and the ROW turned into the woods. The Road Inventory is a recreation of data from surveys done at an unknown time, apparently in the 1970s, long after the execution of the 1859 Deeds. Moreover, the evidence from the Road Inventory is inconsistent, insofar as the Road Inventory for Bridgewater and the Road Inventory for West Bridgewater disagree significantly about the width of Bolton Place, and insofar as the Berger Letter may imply that West Bridgewater was mistaken to recognize Bolton Place. At any rate, the width of the ROW was not defined relative to a public way in the 1859 Deeds.
The soil conditions in Trench 1 and Trench 2 provide some evidence that a roadbed was at some time laid out along the ROW. [Note 73] However, such evidence involves too much uncertainty and speculation to bear significantly on the intent of the parties to the 1859 Deeds. Stone testified that he measured levels of compaction consistent with vehicle traffic, but Stone also stated that he could not determine from his measurements "how many times a vehicle went over or [at] what period of time." Even assuming that the layer of darker, compacted soil was roadbed, nothing in the record indicates who laid the roadbed, when it was laid, the purpose for which it was traveled, the means by which it was traveled, or who traveled it. [Note 74]
The unspecific language in the 1859 Deeds creates uncertainty, but it also provides a clue to the parties' intentions. Such generic language implies that the parties did not necessarily envision a specific use for the easement and that the parties were not greatly concerned about intrusive use of the easement. The ROW was created for the benefit of Robinson. Presumably it was her primary intention to retain access to Wall Street. Rights of way have been used for many specific purposes; [Note 75] if Robinson had wanted to protect any unusual right, she had the opportunity to do so. [Note 76] It was reasonable for her to reserve "a right of way of sufficient width for all foot carriage & team travel", insofar as she would not want the Company to interfere with her basic access, as by later claiming that the easement was for pedestrian access only. Likewise, the Company could have easily conveyed a more restrictive easement, but apparently expected no dispute or inconvenience arising from Robinson's travel over its property. Under these circumstances, it is no surprise that the 1859 Deeds both describe the ROW in identical, unspecific terms. [Note 77]
"In the absence of express limitations, . . . a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant." Tehan v. Security Nat'l Bank of Springfield, 340 Mass. 176 , 182 (1959). The purposes for which a right of way has been actually used imply what purposes are "reasonably necessary" to "the full enjoyment of the premises." See Pion v. Dwight, 11 Mass. App. Ct. 406 , 412 (1981) ("Subsequent use of the easement also may be relevant [to determining the scope of an easement granted in general terms], at least if ambiguity exists."). [Note 78] As discussed, infra, the record indicates that the ROW's current width has accommodated vehicular and pedestrian access to the Counterpane Trust Property. It is reasonable to consider access to the River Street Trust Property in terms of the Counterpane Trust Property's access, inasmuch as the River Street Trust Property abuts the ROW as the ROW runs from Wall Street to the Counterpane Trust Property. The record indicates that the width of the ROW has remained relatively unchanged since an unknown date before 1934. Much of the ROW is now bounded on both sides by trees; such trees are clearly visible in the 1934 Aerial. Furthermore, witnesses at trial agreed that the width of the ROW has remained generally unchanged and described the ROW as wide enough to accommodate one automobile. As shown on the Delano Plan, the ROW has a width of eight feet, which reasonably approximates the width of one automobile. [Note 79]
On the basis of the foregoing, I find that there is an easement pursuant to the 1859 Deeds benefitting the River Street Trust Property that allows access to the River Street Trust Property from the paved portion of Bolton Place to the River Street Trust Property, by pedestrian or vehicular travel over the ROW. On the basis of such easement pursuant to the 1859 Deeds, I further find that the River Street Trust has an implied right pursuant to G.L. c. 187, § 5 to place, install or construct utilities in, on, along, under and upon the ROW for the benefit of the River Street Trust Property. [Note 80] I further find that the unpaved portion of the ROW has a width of eight feet.
Easement by deed benefitting the Counterpane Trust Property.
When Ahearn deeded the Counterpane Trust Property to Chassey in 1894, he did not hold any easement rights in the ROW to deed to Chassey, other than the right of way running northerly conveyed by the Howard Deed. As discussed, supra, the Howard Deed did not convey any rights benefitting the Counterpane Trust Property to travel the ROW southerly, beyond the property line with the River Street Trust Property and the Pratti-Ferioli Property. Any other easement rights Ahearn held in the ROW were deeded to Hallissey in 1892 for the benefit of the Pratti Property and the Ferioli Property. [Note 81] The reference in the 1894 Deed to a right of way to Wall Street was not a right that Ahearn had any right to convey to Chassey. As a result, I find that the Counterpane Trust Property has no deeded rights in the ROW.
Adverse possession or prescriptive rights benefitting the Counterpane Trust Property.
Also at issue in this case is whether the Counterpane Trust has established title to the ROW by adverse possession or, in the alternative, a prescriptive easement to travel over the ROW for ingress to and egress from the Counterpane Trust Property. Since the elements of a prescriptive easement are also required for adverse possession, I will address those elements first.
A. Prescriptive Easement.
A party seeking to establish an easement by prescription must show open, notorious, and adverse use of the servient estate for a period of not less than twenty years; such use must be continuous and uninterrupted, but need not be exclusive to the party claiming prescriptive rights. See. G.L.c. 187, § 2; Tucker v. Poch, 321 Mass. 321 , 323 (1947); Ryan at 251; Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898). A prescriptive easement must also be confined to a particular way, which passes "along a particular route between certain termini." See Hoyt at 56. Making repairs to a way, such as clearing brush, grading dirt, or laying asphalt or gravel, are evidence of the use of a way. Glenn v. Poole, 12 Mass. App. Ct. 292 (1981). The burden of proving each element of the claim rests upon the party seeking to establish an easement by prescription. See Ivons Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). I will discuss these elements in turn.
1. Open and Notorious Use.
The requirement that a use must be "open and notorious" to give rise to a prescriptive easement is intended only to give the owners a "fair chance" of protecting their property interests. Foot v. Bauman, 333 Mass. 214 , 218 (1955). "To be open, the use must be without attempted concealment. . . . For a use to be found open and notorious, it must 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." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). The purpose of requiring open and notorious use "is to place the true owner 'on notice of any hostile activity of possession so that . . . the owner may have an opportunity to take steps to vindicate his rights by legal action.'" Lawrence at 421 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)). It is not necessary that the use be actually known to the owner for it to meet the test for being notorious. Id. at 420. It is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use.
Plaintiffs challenge the Counterpane Trust's open and notorious use of the ROW, inasmuch as they argue that access to the Counterpane Trust Property is from its northerly side, by Comfort Bridge Road, instead of by the ROW, since the Counterpane Trust Property was bounded by Comfort Bridge Road. Moreover, Plaintiffs argue that the Counterpane Trust has an easement pursuant to the Howard Deed to access Comfort Bridge Road. Furthermore, Plaintiffs point out that the Counterpane Trust Property receives its electricity over utility poles that enter its northerly side from East Street. In addition, Plaintiffs contend that the record does not contain adequate evidence of the Counterpane Trust's or its predecessors' use of the ROW for a prescriptive easement.
The Counterpane Trust maintains that it has shown sufficient use of the ROW for a prescriptive easement. Moreover, Defendants maintain that access to the Counterpane Trust Property is by the ROW, partly because Comfort Bridge Road was abandoned and became impassible. Defendants point out that Comfort Bridge Road does not appear on any plan after 1885.
The existence of alternative access does not in itself defeat a claim of a prescriptive easement. [Note 82] In other words, the use of any access other than the ROW - or the right to use such access - is only relevant to the Counterpane Trust's claim to the extent that it may cast doubt on use of the ROW. Some evidence exists that there may have been at one time access to the Counterpane Trust Property from the north, by way of Comfort Bridge Road, rather than from the south along the ROW. Comfort Bridge Road came into existence prior to 1834, and possibly as early as 1730. The parties agree that Comfort Bridge Road bounded the Counterpane Trust Property on the north, as described in the Ahearn Deed. Furthermore, the Howard Deed conveyed for the benefit of the Counterpane Trust Property "a right of way two rods wide by the Easterly side of [the Counterpane Trust Property] and to extend northerly to the highway leading by the dwelling house of Charles Beals where the same has been staked out." Such a right of way would be in the direction of Comfort Bridge Road and East Street.
However, the evidence also shows that Comfort Bridge Road fell into disuse beginning in the nineteenth century, and that the area has since been used for agricultural and residential purposes. Comfort Bridge Road does not appear on the 1885 Plan or on any more recent plans or photographs in the record. Testimony indicated that Comfort Bridge Road disappeared on the ground as well. When questioned about the area where Comfort Bridge Road appears on the Delano Plan, W. Ferioli testified that when he "was a kid" [Note 83] there was "an area where there were no trees that you could walk along all through," although he "couldn't call it a road." He further testified that such area did not go to the road, but stopped "in the woods at the edge of the field. And then there was . . . a footpath from there to the next field." [Note 84] Describing a more recent experience, R. Delano testified that he tried to follow Comfort Bridge Road and saw that "a woods road entered into a field, and at that point [he] couldn't tell where the road went after that." Although utility poles approached the House from the direction of East Street, the record does not indicate that such poles ever followed a way of any significance. [Note 85]
By necessity, anyone residing on the Counterpane Trust Property must have had access to the Counterpane Trust Property. The record does not indicate the exact date that the House was built on the Counterpane Trust Property, although there is evidence that the House predates Asack's ownership. The record contains the Field Card, which lists the age of the House as "150", implying that the house dates to around 1820. Moreover, the 1885 Plan shows a black rectangle, apparently marking the location of a structure on the Counterpane Trust Property at the north end of the ROW. Further evidence suggests that a house on the Counterpane Trust Property was occupied shortly after Asack acquired title. First, the record contains the Birth Certificate, dated April 2, 1927, and showing that Jimmy was born March 31, 1927, on the Counterpane Trust Property. Second, the record contains the Death Certificate, dated August 5, 1930, showing that Delia died August 4, 1930, on the Counterpane Trust Property.
The record contains persuasive evidence that the ROW provided the primary access to the Counterpane Trust Property, especially during Asack's ownership. To begin with, Asack and his household necessarily had access, and there was not a good alternative to the ROW. As discussed, Comfort Bridge Road was no longer used. Palmieri, Germaine, and T. Ferioli all testified that they were unaware of any road or pathway behind Asack's house that would lead in another direction, even though they lived on nearby properties. [Note 86] Furthermore, none of the proposed alternatives to the ROW would accommodate a car, [Note 87] but Clayton and T. Ferioli both testified that Jimmy owned a car while he lived on the Counterpane Trust Property. Clayton further testified that Emily and a doctor traveled the ROW by vehicle. [Note 88] At any rate, there is no evidence in the record that any of Asack's household accessed the Counterpane Trust Property by any route other than the ROW, except for the narrow path Clayton took to a bus stop.
Moreover, the record indicates that the ROW was actually used to benefit the Counterpane Trust Property. Clayton testified that the people living in the house during the years he lived there accessed the house by walking "down the path . . . to the end of Bolton Place," and that vehicles traveled the ROW "[m]aybe monthly." He further testified that "whenever [Asack] had to go anywhere, he would go down to Bolton Place" by way of the ROW. Clayton also testified that after leaving the Counterpane Trust Property he occasionally traveled the ROW by pickup truck to visit Asack, as a teenager and when on leave from military service. Similarly, Germaine testified that Asack walked past her house at 50 Bolton Place "down to the little store to buy groceries once in a while," which would strongly imply travel over the ROW.
Neither Asack nor his successors have attempted to conceal their use of the ROW that benefits the Counterpane Trust Property. The ROW itself was no secret; according to their testimony, it was traveled at times by Santilli, Palmieri, Germaine, T. Ferioli, W. Ferioli, Hayes, David, and Pratti, none of whom lived on the Counterpane Trust Property, for such purposes as hunting, skating, gathering firewood, picking blueberries and wildflowers, general exploration, and visiting Asack and Emily. The ROW is clearly visible in the 1934 Aerial, the 1957 Aerial, the 1969 Aerial, and the 1971 Aerial. Palmieri, Germaine, and Pratti all testified to seeing the ROW traveled by Asack, Emily, or Clayton. Clayton also testified that Asack's household plowed the ROW with a horse and drag while Clayton resided at the Counterpane Trust Property, maintenance which is not only a relevant use of the ROW, but also is highly visible.
The evidence suggests that some degree of unconcealed use continued after Asack's death. R. Bossardt testified that the Bossardt family traveled the ROW by vehicle "every day" until the house on the Counterpane Trust Property burned down in 1979. He also testified that the Bossardts graded the ROW several times by dragging a chainlink fence behind a tractor and shoveled snow off of the ROW. G. Bossardt corroborated this testimony, stating that the Bossardt family traveled the ROW by vehicle "[d]aily, if not more [often]," and adding that they kept an eight-wheel dump truck on the Counterpane Trust Property.
R. Bossardt testified that he returned to the property "several" times a year "for a few years" after the house burned. G. Bossardt testified that he returned to the Counterpane Trust Property after the house burned "[t]hree times a year, maybe," to check on it. He also testified that a trailer was placed on the Counterpane Trust Property, but that no one lived in such trailer for any length of time and that it mysteriously disappeared. [Note 89] In addition to whatever use the Bossardts made of the ROW, Hayes testified that she saw Dorr travel the ROW after 2006.
Furthermore, such use of the ROW benefitting the Counterpane Trust Property would become apparent to anyone exercising reasonable supervision over it. T. Ferioli testified that he was "sure [the Bossardts] had a car, because they had to get up [to the Counterpane Trust Property]." This statement indicates his assumption that possession of a car by occupants of the Counterpane Trust Property implied their use of the ROW. Moreover, use of the ROW became actually apparent to Pratti, insofar as he discussed travel over the ROW with G. Bossardt and eventually blocked the ROW.
On the basis of the foregoing, I find that there was open and notorious use of the ROW benefitting the Counterpane Trust Property, continuously from at least March 31, 1927 to at least January 15, 1964 and continuously from the Bossardts' occupation of the Counterpane Trust Property (approximately 1970) to November 4, 1979. I further find that there was open and notorious use of the ROW benefitting the Counterpane Trust Property, from time to time between January 15, 1964 and the Bossardts' occupation of the Counterpane Trust Property (approximately 1970) and from time to time since November 4, 1979.
2. Adverse Use.
Plaintiffs assert that the use of the ROW was not adverse, insofar as Pratti gave R. Bossardt, G. Bossardt, and Dorr permission to travel over the ROW, provided that they stayed off of Pratti's lawn. [Note 90] In addition, Pratti stated that he gave permission to the Domingoses "[i]n the 70s and 80s, maybe once every three or four years," as well as annually to friends who were hunters. Plaintiffs also point to testimony from Germaine that Germaine's mother explicitly granted Pratti permission to travel over the ROW, but did not grant permission to anyone else. [Note 91]
Defendants contend that use of the ROW is presumed to be adverse as a matter of law. Furthermore, Defendants maintain that the owners of the Hayes Property, the Pratti Property, and the Ferioli Property never gave permission to Asack, R. Bossardt, or G. Bossardt to use the ROW. Moreover, Defendants argue that explicit permission given to one user of the ROW, Pratti, does not have any bearing on permission given or denied to others.
"The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse . . ." Brooks, Gill, & Co., Inc. v. Landmark Props., 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-31 (1986) (quoting Truc v. Field, 269 Mass. 524 , 528-29 (1930)). Therefore, use of the ROW to benefit the Counterpane Trust Property is presumed to be adverse, except to the extent that Plaintiffs can show otherwise.
Adverse use means a lack of consent from the true owner. Lawrence at 422. "[A]cquiescence, or tacit agreement, by an owner, to the adverse use of his property is not the same as granting permission and will not, by itself, defeat a claim of prescriptive rights." Rotman v. White, 74 Mass. App. Ct. 586 , 590 (2009). As Defendant's argument implies, the important point in this case is whether the true owners of the properties crossed by the ROW actually granted permission to anyone to travel the ROW for the benefit of the Counterpane Trust Property. [Note 92] Whether or not permission was granted to others, such as the Domingoses, is irrelevant; likewise, the rationale for granting permission or not is irrelevant.
Plaintiffs' only relevant evidence of permission granted to use the ROW is Pratti's testimony that he gave such permission to R. Bossardt, G. Bossardt, and Dorr. Specifically, Pratti testified to a conversation, in which he recalled stating to G. Bossardt, "Please stay to the extreme left so you do not ruin my lawn. That's all." G. Bossardt recalled the conversation differently: "He got mad at me when I drove out there. . . . [H]e said 'I'd rather you not do that, because your road goes over that way,'"which was "on the other guy's property." [Note 93]
The exact date of the conversation in which Pratti allegedly gave permission to G. Bossardt is not in the record. Pratti's testimony placed the conversation furthest in the past, stating that it occurred "three or four or five years ago," (i.e., 2005-2007). It is undisputed that the conversation occurred well after the house on the Counterpane Trust Property burned down in 1979. As discussed, infra, the statutory period required for a prescriptive easement had already passed by the time such a conversation would have occurred. Therefore, this court does not need to determine whether or not the record indicates that Pratti gave R. Bossardt, G. Bossardt, or Dorr permission to use the ROW. [Note 94]
On the basis of the foregoing, I find that the use of the ROW that benefitted the Counterpane Trust Property was adverse to the owners of the ROW, inasmuch as the owners of the ROW did not grant anyone from the Counterpane Trust Property permission to use the ROW between March 31, 1927 and November 4, 1979.
3. A Period of Not Less Than Twenty Years.
a. Pedestrian Use.
Asack and his household resided on the Counterpane Trust Property from at least March 31, 1927 until at least Asack's death on January 15, 1964. The evidence shows, and I so find, that the ROW provided a primary pedestrian access to the Counterpane Trust Property during the period March 31, 1927 to January 15, 1964, which exceeds the statutory requirement of twenty years.
As a result of the foregoing, I find that there is an easement by prescription benefitting the Counterpane Trust Property to travel by foot over the ROW, inasmuch as there was pedestrian use of the ROW benefitting the Counterpane Trust Property that was continuous and uninterrupted, open and notorious, and adverse, from at least 1927 until at least 1964, a period of more than twenty years.
Since this court finds that there is a prescriptive easement for pedestrian use benefitting the Counterpane Trust Property, the location and width of such easement must be determined. The extent of a prescriptive easement is "fixed by the use through which it was created." Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982) (quoting Lawless v. Trumbull, 343 Mass. 561 , 562 - 563 (1962)). As discussed, supra, the prescriptive easement was created by pedestrian use between 1927 and 1964. During this time of pedestrian use, the ROW was wide enough to accommodate one automobile. Witnesses at trial agreed that the width of the ROW has remained generally unchanged since that time. As shown on the Delano Plan, the ROW has a width of eight feet, which reasonably approximates the width of one automobile. [Note 95]
Therefore, I find that the prescriptive easement for pedestrian travel benefitting the Counterpane Trust Property has a width of eight feet as it runs northerly from the end of the paved portion of Bolton Place, and that such easement is in the location of the ROW, as shown on the Delano Plan.
Inasmuch as I find that the Counterpane Trust Property has an easement by prescription and not by deed, I find that the Counterpane Trust does not have a right to install utilities in the location of the ROW. [Note 96] [Note 97]
b. Vehicular Use.
The record contains much less evidence of vehicular use of the ROW than pedestrian use of the ROW in connection with the Counterpane Trust Property. Some evidence exists of vehicular travel over the ROW during the time of Asack's ownership, but there are significant gaps. The record suggests that the most frequent traveler over the ROW by vehicle would have been Jimmy, since he was the only resident of the Counterpane Trust Property known to own a car during Asack's life. [Note 98] Apart from Jimmy, the record contains no evidence of anyone specific traveling the ROW by vehicle during Asack's lifetime, except for occasional visits on unspecified dates by Clayton, Emily, and an unnamed doctor. [Note 99] Such indefinite evidence of infrequent vehicular travel is not an adequate basis for a prescriptive easement.
Since Jimmy was born March 31, 1927, he would not have been of legal driving age before 1943. Clayton's testimony indicates that Jimmy owned a car during the time that Clayton lived at the House, which Clayton testified might have been as late as 1945. Since Clayton testified that Jimmy died in an automobile accident involving a car that Clayton remembered from childhood, Jimmy likely owned and used such car consistently from at least 1945 until Jimmy's death. According to Clayton's testimony, Jimmy moved away from the Counterpane Trust Property before his death. The exact dates of Jimmy's move and death are not in the record. However, along with Asack and MacLean, Jimmy is listed as a resident of 38 Bolton Place in the Town List for the year 1961; Jimmy is similarly listed as a resident of 38 Bolton Place in the Town List for the years 1951 through 1960. However, Jimmy is not listed as a resident of 38 Bolton Place in the Town List for the year 1962, implying that Jimmy left the Counterpane Trust Property in 1962 at the latest. Therefore, I find that there was vehicular travel over the ROW continuously from at least 1945 until no later than 1962, a period of less than twenty years.
"It has long been settled that [w]hatever breaks the continuity of possession and enjoyment of an easement" has the result of destroying the effect of the prior use." Boothroyd at 45 (quoting Pollard v. Barnes, 56 Mass. 191 , 199 (1848)). The record relative to use of the ROW indicates that such a break began no later than 1962 with Jimmy's departure and continued after Asack's death in 1964. Clayton testified that MacLean moved to Canada and that Emily and her brother inherited the property. The record indicates that Emily rented the Counterpane Trust Property to multiple renters before selling it to Leonard on December 29, 1969. However, the record contains very little evidence of use of the ROW during the nearly six years that Emily owned and rented the Counterpane Trust Property.
The record does not contain the renters' exact dates of occupation. The Town List shows that the Counterpane Trust Property was occupied by 1965, but the record does not indicate how long it may have been vacant after Asack's death in January of 1964. Significantly, 38 Bolton Place is designated "Vacant" by the Town List for the year 1966; 38 Bolton Place is also designated "Vacant" by the Town List for the year 1967. The only testimony relative to vehicular use of the ROW by renters was T. Ferioli's testimony indicating that at least one family resided on the Counterpane Trust Property and owned a car during Emily's ownership. [Note 100] Moreover, nothing in the record indicates that either Clayton or Emily traveled the ROW after Asack's death. Likewise, the record contains no evidence relative to Leonard's use of the ROW or Jellison's use of the ROW. Therefore, I find that any continuity of adverse vehicular use of the ROW benefitting the Counterpane Trust Property was broken in 1962 at the latest.
The record shows that the Bossardts acquired the Counterpane Trust Property in 1970. Most of the testimony relative to the Bossardts' use of the ROW came from the Bossardts' sons, who testified that vehicles traveled the ROW daily from the time the Bossardts occupied the Counterpane Trust Property until the House burned down on November 4, 1979. After the House burned down, no one lived on the Counterpane Trust Property for any length of time. Use of the ROW after that date was sporadic and infrequent. Since the continuous, open, notorious use of the ROW ended in 1979, after approximately nine years, there cannot be a prescriptive easement on the basis of whatever use occurred while the Bossardts lived on the Counterpane Trust Property.
On the basis of the foregoing, I find that there is no easement by prescription benefitting the Counterpane Trust Property to travel by vehicle over the ROW, inasmuch as the record does not show twenty years of continuous, uninterrupted vehicular travel over the ROW.
B. Adverse possession benefitting the Counterpane Trust Property.
In Massachusetts "title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also G.L. c. 260, § 21. 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 v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 491 (1938). "A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own." Lawrence v. Town of Concord, 439 Mass. 416 , 426 (2003). If the claimant has not been using the property for the required twenty-year period, he can satisfy the requisite period by tacking on a grantor's period of adverse possession, provided there is privity of estate between the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G.L. c. 260, § 22. Acts of possession which are "few, intermittent and equivocal" are insufficient to constitute adverse possession. Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). The nature of the required use varies with the characteristics of the land. Lawrence, 439 Mass. at 490. The burden of proving acquisition of title through adverse possession is on the party claiming thereby. See Lawrence, 439 Mass. at 421.
In order to satisfy the criteria for an adverse possession claim, the adverse use must meet all of the requirements for a prescriptive easement, as discussed, supra, as well as be exclusive. "A claimant's use is 'exclusive' for purposes of establishing title by adverse possession if such use excludes not only the record owner but 'all third persons to the extent that the owner would have excluded them.'" Brandao v. Docanto, 80 Mass. App. Ct. 151 , 158 (2011) (quoting Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993)). [Note 101]
The record does not show acts of control and dominion over the ROW that would warrant adverse possession in favor of the Counterpane Trust Property. As discussed, supra, the record contains strong evidence that residents of the Counterpane Trust Property traveled over the ROW beginning at least by March 31, 1927. [Note 102] The record does not contain evidence that anyone else traveled the ROW for the twenty years following that date. [Note 103] However, mere travel over the ROW is not an act of control or dominion adequate to establish adverse possession. See Cowden v. Cutting, 339 Mass. 164 , 168 (1959) (distinguishing between acts of possession and acts that "were consistent only with an easement of passage"). [Note 104]
Although testimony indicated that residents of the Counterpane Trust Property minimally maintained the ROW by grading it and shoveling snow, such maintenance was physically necessary to anyone's use of the ROW and there was no indication that these tasks were an open assertion of exclusive use or ownership. Cf. Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341 , 348 (2004) ("Activities affecting the way undertaken by [the adverse claimant] (constructing from an unimproved condition, authorization to install utility lines, general upkeep) did not impede the rights of others to make use of it; if anything, the improvement and upkeep facilitated
use by others."); Lyon v. Parkinson, 330 Mass. 374 , 380 (1953) (affirming denial of adverse possession, despite preparation and regular maintenance of a lawn and rock garden in a disputed area). [Note 105]
Adverse possession is established by "'[t]he actual use and enjoyment of the property as the average owner of similar property would use and enjoy it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership.'" Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-57 (1979) (quoting 3 Am. Law of Property § 15.3, at 765 - 766 (1974)). Therefore, acts of control and dominion must be visible enough to "warn the owner of a challenge to its title," which is the "essential criterion" of adverse possession. See Air Plum Island, Inc. v. Society for the Preservation of New England Antiquities, 70 Mass. App. Ct. 246 , 255 (2007). "The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land," Lachance at 490, and such character is relevant to the issue of notice. See id. ("Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city."). In the case at bar, the ROW ran along the Pratti-Ferioli Property and adjacent to the River Street Trust Property, both of which were unimproved between 1927 and 1947. In part because those properties were unimproved, it would not be reasonable to expect the true owner of the Pratti-Ferioli Property to be on notice that residents of the Counterpane Trust Property were challenging his title simply by traveling to and from the Counterpane Trust Property during those years. See Sea Pines Condominium III Ass'n at 848 ("[I]n the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve [the] purpose [of placing the lawful owner on notice].").
Moreover, nothing in the record suggests that either Asack or his successors excluded anyone from use of the ROW. [Note 106] As discussed, supra, the ROW was known and traveled by others for many purposes. [Note 107] There is no evidence that residents of the Counterpane Trust Property ever interfered with others( travel over the ROW. [Note 108] Santilli, Palmieri, and T. Ferioli all testified to traveling the ROW for purposes unconnected with the Counterpane Trust Property, commencing in the early 1950s. [Note 109] Furthermore, as discussed, supra, the ROW benefitted the River Street Trust Property, which would imply some amount of travel over the ROW in connection with that property.
On the basis of the foregoing, I find that the Counterpane Trust Property has not acquired title to the ROW by adverse possession, inasmuch as the Counterpane Trust Property has not made exclusive use of the ROW. [Note 110]
Judgment to enter accordingly.
we the said Bridgewater Iron Manufacturing Company in part consideration of the aforesaid conveyance of said Rhoda to us, hereby grant & convey to said Rhoda a right of way of sufficient width for all foot carriage & team travel over our said land lying between said wall street & the aforesaid small parcel of land conveyed by said Rhoda to us. Commencing where said lane begins at said wall street next to said Walkers land & running about Northwesterly, over our said land, to, by & in front of, our said dwelling houses, to the aforesaid small parcel of land conveyed by said Rhoda to us, & thence over said small parcel of land as described in said deed to her other lands known as the Willis land, containing about twenty acres where said land or passageway now is.
This deed created Robinson's rights in the ROW from Wall Street to land owned by her northerly of the small parcel conveyed by the 1859 Deed. This deed and the 1859 Deed (together, the "1859 Deeds") appear to have created the ROW. The ROW is today known as Bolton Place.
The most common width of the ROW stated by witnesses was one car width. Estimates in feet differed, but the width of a car was the common reference point.
In addition to listings for Bolton Place, the Town List includes listings for at least part of Brooks Place for several years. In the Town List, Brooks Place immediately follows Bolton Place; therefore, it is unclear whether the parties were aware of such listings for Brooks Place and whether the parties intended to bring such listings to this court's attention. The Town List for the year 1951 lists "Asack, James" at 15 Brooks Place, without indicating an age, in addition to the listing of "MacLean, James" at 38 Bolton Place. In the Town List for the years 1952, 1953, 1954, 1955, 1956, and 1957, "MacLean, James" is listed as an ice cream plant employee residing at 38 Bolton Place, and "Asack, James" is listed as a teacher residing at 15 Brooks Place; both listings show the same age each year. In the Town List for the years 1958, 1959, 1960, 1961, 1962, 1963, and 1964, "Asack, James" is not listed at 15 Brooks Place. In the Town List for the year 1965, "Asack, James" is listed as a thirty-six year-old teacher residing at 37 Brooks Place; this listing appears to be erroneous, insofar as the 37 Brooks Place address is listed out of order, 37 Brooks Place does not appear as an address anywhere else in the record, and the James Asack listed previously at 15 Brooks Place would have been thirty-seven years old in 1965. In the Town List for the years 1966, 1967, and 1968, "Asack, James" is listed as a teacher residing at 15 Brooks Place, at the ages that would correspond to the apparently erroneous listing for the year 1965. In the Town List for 1969, "Asack, James" does not appear at 15 Brooks Place.
Any inconsistency does not affect the Decision, insofar as the record contains no evidence of Jimmy's travel by vehicle over the ROW before 1945 or after the Town List for the year 1961.
the owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways . . .
Pratti testified that he did not believe he was aware of any way to get back to East Street from the Counterpane Trust Property by vehicle.
G. Bosardt testified that there was no way other than the ROW to access the House by vehicle. He testified that there were footpaths on the Counterpane Trust Property.
This court has not considered Pratti's testimony regarding permission given by his father and grandfather because the source of Pratti's belief that he could grant or deny permission to use the ROW is not relevant to this case.
ROBERT M. HAYES, MARIE A. HAYES, THOMAS J. PRATTI and LISA M. PRATTI vs. CHRISTIAN DORR, LINDA A. INNISS, Trustee of COUNTERPANE NOMINEE TRUST, LINDA A. INNISS, Trustee of RIVER STREET TRUST, and such other persons, if any, as may be the Heirs of Christian Dorr or Successors to Linda A. Inniss, and such other persons, if any, unascertained, not in being, unknown, within or without the Commonwealth or who cannot be served with process, their heirs or legal representatives or such persons as shall become their heirs, devisees or appointees