By virtue of the instant action, plaintiffs Huanling Zhang (also known as Helen Zhang) and Ruwen Gao (plaintiffs / Zhang), the current owners of 89 Spring Street, Cambridge, Massachusetts (the property / Locus)), seek an order and declaration that they have secured an easement by prescription for the purpose of accessing and parking in the rear yard of their property, over a ten-foot wide common passageway (Passageway / Way.
The defendants Peter Crawley, Wen Hao Tien, Jean Raymond, Alan Coffin, Ellen Adelson, Michael McConnell, Jennifer McConnell, and Jason Finnon (defendants) each possess a deeded right-of-way over the said Passageway. While the rear of the plaintiffs property directly abuts the Passageway, 89 Spring Street carries with it no deeded rights therein. The plaintiffs assert that they, together with their predecessors in title utilized the Passageway for more than twenty years by foot and by motor vehicle to access and park in the rear yard of 89 Spring Street. [Note 1] Defendants deny that plaintiffs have any rights, prescriptive or otherwise in the Way.
For the reasons that follow, this court concludes that at trial, the plaintiffs failed to prove the elements necessary to establish prescriptive rights in the Passageway. The plaintiffs were unable to prove that either they or their predecessors in title, separately or in tandem, had perfected an easement by prescription for the time period specified in G.L. c. 187, § 2.
A three-day trial was held on February 8, March 21, and June 14, 2012, at which a stenographer was sworn to take the evidence of Huanling Zhang, David McQueeney, Michael McQueeney, Walter Tauro, Peter Crawley, Allan Coffin, Nancy Spence, David Prum, John Robinson, Ellen Adelson, and Jean Raymond. The thirty-seven exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal. Proposed findings of fact and rulings of law were submitted by both parties, and are incorporated herein to the extent that they are consistent with this decision. They are otherwise denied.
On all the credible testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:
(1) The plaintiffs own the property known and numbered as 89 Spring Street, Cambridge, Massachusetts, having acquired same from brothers Michael D. McQueeney and David C. McQueeney (the McQueeneys) by deed dated June 14, 2007. [Note 2]
(2) The rear of the Locus faces the back of the defendants properties. The defendants properties, in turn, front on Thorndike Street in Cambridge. Between the Locus and the defendants properties, lies a strip of land, the Passageway, which is approximately ten feet wide by one hundred feet long. It is this Way which is the focus of the instant dispute.
(3) Since the 1800s, the defendants Peter Crawley, Wen Hao Tien, Jean Raymond, Alan coffin, Ellen Abelson, Michael McConnell, Jennifer McConnell, and Jason Finnon and their predecessors in title, have had exclusive deeded easement rights in the Way which runs parallel to Thorndike and Spring Street. It runs perpendicular to, and opens onto, Sciarrapa Street. [Note 3] The Passageway primarily serves the defendants as a parking area.
(4) The McQueeney family owned the 89 Spring Street property prior to 1957 until its sale to the plaintiffs by deed dated June 14, 2007. [Note 4] They held no deeded rights in the Passageway. [Note 5]
(5) The McQueeneys were the plaintiffs immediate predecessors in title to the property. [Note 6] Prior to her death in 2004 [Note 7] the McQueeneys mother, Joan Atwell, owned the property. [Note 8] During the years at issue, there were two fences, with pedestrian gates set in them, along the northerly boundary of the property. These fences separated the backyard from the Passageway. [Note 9]
(6) For several years, there was an above-ground swimming pool in the backyard. It had apparently been installed sometime in the late 1970s. While there was conflicting testimony on point, the court specifically finds it more likely than not that the pool was removed in 1984. [Note 10] The court finds that in the interim, the backyard was not used for parking purposes.
(7) David McQueeney did not park at or visit 89 Spring Street in 1983.
[He] wasnt around in 83. [He] was living in Chelsea. He resided in Chelsea in 1984, as well. [Note 11] (8) Between 1992 and 2000 David McQueeney resided at the 89 Spring Street address with his mother. [Note 12] While the beginning date is uncertain, David McQueeney testified that he visited his mothers home until two years prior to her death in 2004. [Note 13] He testified that he would dismantle portions of the two fences bordering the Passageway, i.e. a silver colored chain link fence and a red colored wooden stockade fence to allow him to park in the backyard at 89 Spring Street. However, owing in part, to opposing, credible testimony from current and former neighbors, infra, this court does not find David McQueeneys testimony in this regard credible, i.e. that prior to the passing of Ms. Atwell, the fences, or either of them, were dismantled as often as twice a week so as to allow vehicular access to the backyard at 89 Spring Street. [Note 14]
(9) Michael McQueeney testified that he lived occasionally at 89 Spring Street in the 1980s and never parked a car of his own in the backyard. [Note 15] Any use of the property during that time was sporadic. [Note 16]
(10) He testified regarding inconsistencies between his testimony at trial and at his deposition, as follows:
My memory has always been kind of bad, so its been a problem for years [Note 17] I have some memory problems. [Note 18]
On cross-examination, he testified as follows regarding an Affidavit appended to the plaintiffs complaint:
Q: Well, you dont even remember signing that affidavit; isnt that right?
(11) David McQueeney too, when presented with an inconsistency between his courtroom testimony and that given at deposition testified as follows:
Ive been having a you know, I have a lot of medical problems, so I forget things, you know. [Note 19]
Q: Im sorry, what did you say were your memory problems?
A: Sometimes I dontyou know, I try to keep a memory as good as I can, but I cant remember everything
Q: So do you have some problems remembering what may have occurred twenty years ago; is that fair to say?
A: Not everything. But I mean some things I do, yeah. [Note 20]
(12) Michael McQueeney was incarcerated from 1988 to 1993 and has no personal knowledge of the use of the Passageway and backyard of 89 Spring Street during that time period. [Note 21]
(13) Michael McQueeney testified that commencing 93 or 94 till, I dont know , I dont know, 2000-something02 or something he would back the truck up onto the property as far as I could so that he could fix up the place, i.e. effect repairs to the dwelling at 89 Spring Street. [Note 22] He also testified that in order to bring vehicles into the backyard of 89 Spring Street he would dismantle the fences, drive the vehicle into the backyard, and put the fences back together. [Note 23] He stated that defendants were aware of this use of the property. [Note 24]
However, to the extent Michael McQueeney means to suggest that he would periodically park a vehicle in the backyard of 89 Spring Street over a period of up to nine years in order to carry out renovations and repairs to the dwelling, this court specifically finds that such testimony is not credible, especially in light of the testimony offered by current and former neighbors of the McQueeneys. It is their testimony which this court credits.
As a general matter, this court finds that much of Michael McQueeneys testimony was vague, and imprecise, chronologically and otherwise. [Note 25]
(14) This court credits the testimony of Nancy Ellen Spence, a lawyer who resided at 88 Thorndike Street from 1992 to 2005, worked from her home for an extended period of time, [Note 26] and who parked her vehicle in the Passageway. She testified to her familiarity with the chain link and red wooden fences. [Note 27] Her testimony was, in relevant part, as follows:
Q: Did you ever in your time on Thorndike Street from 1992 to 2005 see any portion of that fence removed so that a motor vehicle could travel into or out of the backyard at 89 [Spring Street].
A: No [Note 28]
Q: In your time from 1992 until 2005, did you ever observe owners of invitees of 89 Spring Street using that passageway as an access to parking spots in the rear of their yard?
A: No. [Note 29]
Q: Did you observe any occasions when the owners or invitees of 89 Spring Street used the passageway at all?
A: I did. On at least one occasion, and possibly more, I saw a vehicle pull into the right of way, stop, open the gate either take things in, take things out and then leave They didnt stay very long. They backed out and that was the end of it. [Note 30]
(15) The court credits the testimony of David James Prum who owned and resided in the property at 100 Thorndike Street, Cambridge, from 2000 to 2007. [Note 31]
Q: And during your time from 2000 until 2007 at the property, did you ever see anyone from 89 Spring Street, the owners or its invitees, use the passageway in order to access and egress from parking spots in the rear of 89 Spring Street?
A: No, I did not. [Note 32]
Q: --before 2005 did you ever see somebody who needed to get a car in the backyard of 89 Spring Street first peel back the fence, the chain link fence and then take apart the red picket fence, pull a car in and then replace the fence?
A: Never. No. [Note 33]
(16) The court credits the testimony of Ellen Adelson. Ms. Adelson and defendant Alan Coffin acquired the property at 92 Thorndike Street, Cambridge, by deed dated January 6, 1997. Ms. Adelson works from her residence at 92 Thorndike Street. [Note 34] Her office is on the third floor of her dwelling, overlooking the rear of the plaintiffs property. [Note 35] Her desk chair is placed in close proximity to the window. [Note 36] Given her office location, Ms. Adelson would likely hear and see any activity taking place on the Passageway or in plaintiffs backyard.
In this regard, Ms. Adelson testified as follows:
Q: And from 1997 until 2004 when Ms. Atwell passed away, did you ever see any motor vehicles use the passageway for access or egress to parking spots in the backyard of 89 Spring Street?
Q: And from 1997 until 2004, were you also working at home?
A: Oh, yes. [Note 37]
Q: And when you work at home, where is your office located?
A: Its on the second floor, which in the back is really the third floor, in the back overlooking the backyard of 89 Spring street.
Q: And during the entire time the red picket fence traversed the entire back of the property; is that right?
A: That is correct until the fall of 2005.
Q: Did you ever see during that time even any cars parked in the rear yard of 89 Spring Street?
A: Never . [Note 38]
Q: Now, did you ever from 1997 to 2004 see anyone take apart the fence behind 89 Spring street so that a car could be pulled into the backyard and then put the fence back together again?
A: Never. [Note 39]
She never heard or observed anyone pulling a fence apart to pull a car into the backyard [at 89 Spring Street]. [Note 40]
(17) This court credits the testimony of plaintiff Alan Coffin. Together with the defendant Ellen Abelson, Mr. Coffin took title to the property at 92 Thorndike Street in 1997. [Note 41] He is a self-employed construction manager. He testified on direct examination that when he acquired his property in 1997, there was a red picket fence that traversed the back of 89 Spring Street . The fence had a pedestrian gate that was about 4 feet tall that would not allow access or egress for motor vehicles.
He testified further as to a chain link fence in front of that red fence having a pedestrian gate, that would not, in similar fashion, allow access or egress for motor vehicles.
Q: And from 1997 until 2004, did you ever witness any motor vehicles access or egress to the rear yard of 89 Spring Street during that time?
A; Not onto that property.
Q: What did you see from 1997 to 2004?
A: Occasionally they would have a truck back in, load materials or trash or furniture or whatnot and then pull out.
Q; And when a truck like that backed in are you saying it backed into that---the passageway?
A: Into the alleyway by their walk-in gate.
Q: And how often did you see that from 1997 to 2004?
A: Three of four times, I would say . [Note 42]
Q: Was it possible for a truck or other vehicle from 1997 to 2004 to back into the yard during that time given that those two fences were up?
A: Not a truck like that. No.
Q: Well, could any vehicle back into the yard during that time given that those two fences were up?
A: If they deconstructed part of the fence, its possible, but that would be a project to do it that I cant see. [Note 43]
Q: And you heard testimony that on occasion [the McQueeneys] would come and park their car in the backyard of 89 Spring Street, and the way they would do that would be to peel back the first chain link fence and then take apart a section of the red fence and then after they left, they would put that together again. Did you ever see any activity like that at any time that you lived at the property?
A: No. [I]f they did do it, it was a pretty clean job, because it never looked different from one day to the next.
Q: Now from 1997 to 2004 had you ever seen a single car parked in the backyard of 89 Spring Street?
Q: When did you first see any vehicle parked in the backyard at 89 Spring Street?
A: After 2004.
Q: And do you recall how long those vehicles were parked in the backyard at 89 Spring Street?
A: It was I would say over a year, about a year.
Q: And during that time that those vehicles were parked in the backyard , did you see those cars accessing or egressing from Sciarappa Street through the passageway
A: No [Note 44]
(18) During the years that the McQueeney family owned 89 Spring Street, this court specifically finds that there were sporadic, intermittent instances of vehicles entering the Passageway to pick up or drop off materials from or to the property at 89 Spring Street. This was accomplished through use of the pedestrian gates in the fences.
(19) At some point following his mothers death in 2004, Michael McQueeney reconfigured portions of the two fences to create an opening sufficiently wide to allow vehicular access to the backyard of 89 Spring Street from the Passageway. [Note 45] [Note 46]
(20) Between 2004 or 2005 and 2007 when the property was sold to the plaintiffs, two vehicles were parked in the backyard at 89 Spring Street, but did not utilize the Passageway for ingress or egress during that time. [Note 47] David McQueeneys testimony to the effect that the vehicles were moved into the passageway a couple of times a week in order to make sure that the tires werent always sitting on the bottom is quite simply contrived and not credible. [Note 48]
(21) Ms. Zhang testified that there were two cars parked in the backyard when she viewed the property prior to purchasing it, [Note 49] but that she never saw the cars enter or exit the yard. [Note 50] She did see the Multiple Listing Service Listing Sheet for 89 Spring Street, which indicated that there were no parking spaces associated with the property. [Note 51] She also testified that when she received the deed to 89 Spring Street, she understood that the northern boundary of the property was the southerly edge of the Passageway, and that the deed didnt reflect that [she] had any rights to use the passageway . [Note 52]
(22) After acquiring 89 Spring Street in June of 2007, Ms. Zhang had at least a portion of the two fences between the backyard and the Passageway removed. [Note 53] That same month she applied for a building permit in order to undertake renovations to the residence at 89 Spring Street. While details are sparse, for an indeterminate but relatively brief period of time during the period of renovation, she used the Passageway to access the backyard, from time to time. Contractors hired for the renovations also used the Passageway to access the backyard. [Note 54] Both Ms. Zhang and the contractors parked vehicles in the backyard. [Note 55]
(23) Ms. Zhang testified as follows:
Q: At any time did you ever ask anyone for permission to use the passageway.
A: Nobody told me that. After I purchase [June, 2007], I use it; nobody stop that until
Q; Until when?
A: Until one morning I think in July  because I did some demolition .. so I rented a Dumpster. I rent like a few Dumpsters. The first two or three Dumpsters, I park in the backyard no problem. I think the fourth one is full. I call them, [The Dumpster company] . They come here to pick up the Dumpster in the morning . July or August, maybe July. [Note 56]
Q: [Peter Crawley], [h]e park his car in front of the truck [delivering and removing Dumpsters]. The truck come into my yard to pick up the Dumpster, he [Crawley] block the truck and didnt allow the driver to pick up Dumpster and he called the policeman. The police came over
From there they [neighbors] said, You cannot use this Passageway. [Note 57]
I conclude therefore, that the unimpeded use of the Passageway by the plaintiffs, was short-lived. The defendants, individually or collectively, made known their displeasure with the plaintiffs use of the Passageway in at least one personal meeting with Ms. Zhang. [Note 58] They did so in seeking to physically block the Dumpster vehicle as noted, in seeking a criminal complaint claiming trespass against the plaintiffs, [Note 59] in the mailing of an attorneys letter to the plaintiffs, [Note 60] and in speaking to individual tenants.
(24) Jean Eunice Raymond currently owns the premises at 90 Thorndike Street. She has resided at that location for her entire life. [Note 61] Ms. Raymond testified in relevant part, as follows:
Q; Prior to her death in 2004, did you ever know of Ms. Atwell or any of her invitees at 89 Spring Street to use the backyard that they had there as parking space?
A: No. I dont know that anyone has. I dont ever remember .
Q: And up until 2004 when Ms. Atwell passed away, did you ever see anybody take apart the fence so that an automobile could be driven into the backyard of 89 Spring Street?
A: No, I havent. To my knowledge, I dont recall any time that a car or that fence was changed to put a car there .
Q: And do you recall that at some point the fence was taken apart?
A: Yes I do .
Q: Do you recall when that was?
A: I cant say the year. I remember it was whenafter Joan Atwell died and the boys had the house. [Note 62]
Ms. Raymond stated that it was not until after Ms. Atwells passing that the McQueeneys were able to slide that [fence] open to let the cars go in. [Note 63] (emphasis added) It was after that time that she observed two automobiles parked in the backyard. So two cars were put in there, but there was no coming-and-going action once the cars were put in there. [Note 64]
(25) Since the completion of substantial renovations to the Locus following its acquisition in June of 2007, the plaintiffs have utilized the 89 Spring Street property for rental purposes exclusively. [Note 65] At no time have they resided at the Locus.
(26) Approximately once a year, a moving truck enters the backyard of 89 Spring Street via the Passageway [Note 66] and parks there to allow tenants to move into and out of the property. [Note 67]
(27) While Ms. Zhang uses the Passageway occasionally for deliveries, it is not typically used for parking. [Note 68] Her tenants do not plow the backyard in the winter to allow them to park. [Note 69] One tenant parked a motorcycle in the backyard during the summer. [Note 70] Any use of the Passageway is sporadic at best. [Note 71]
Ms. Zhang testified on cross- examination as follows, in this regard:
Q: [T]he type of use youre talking about after November 2007, was sporadic use by service providers; is that correct?
A: Yes. [Note 72]
(28) Defendants Peter Anthony Crawley and his spouse Wen Hao Tien own the property known and numbered as 88 Thorndike Street in Cambridge. [Note 73] Mr. Crawley has resided there since 2005.
Prior to the plaintiffs acquisition of 89 Spring Street, Mr. Crawley never observed anyone dismantle the fences separating 89 Spring Street from the Passageway to enable cars to enter the backyard. [Note 74]
(29) Mr. Crawley testified as to the availability of residential parking stickers for property owners on Thorndike Street, Sciarappa Street and Spring Street, together with the availability of passes for a guest car to visit. [Note 75]
(30) Defendant Walter Tauro owns the property known and numbered as 88 Thorndike Street, Cambridge. [Note 76] He has owned the property since approximately 1990 [Note 77] and resided at that location between 1990 and 1994 [Note 78] before moving to Arlington, Massachusetts.
(31) Walter Tauro grew up in the neighborhood with the McQueeneys. [Note 79] He testified that David McQueeney would do some work on his car. The work would take place [i]n the street. Sometime in his backyard. [Note 80] He further testified of a car that the McQueeneys had in the backyard but could not recall when David McQueeney worked on it or if he worked on it. [Note 81] The following exchange took place on direct examination:
Q: So how often would you say there was a car in the backyard?
A: Youre talking twenty years ago; I dont know. I cant honestly answer your question I want to be honest. I cant answer that question . [Note 82] But I cant answer like the specifics. Im not going to answer specifics. [Note 83]
There was testimony concerning an old Chevrolet that Mr. Tauro observed parked in the backyard between 1990 and 1994. [Note 84] Tauro testified further that for a period of time that he resided at 88 Thorndike Street, Everett McQueeney, the deceased brother of David and Michael McQueeney, would park his commercial vehicle, a Chevy truck or something [s]ometimes in the street and sometimes in the alley.
Q: In the alley or in their backyard?
A: I think on the line .
Q. So part in the yard, part in the alley?
A. Yeah. [Note 85]
He has no personal knowledge of the manner in which the Passageway was used after 1994.
(32) Mr. Tauros testimony lack specificity. The frequency or regularity with which the Way may have been used in connection with motor vehicles kept in the backyard, is nowhere stated.
By way of illustration, the following exchange took place on direct examination: [Note 86]
Q: And after moving in 1994, between 1994 and 2007, youve been back to the property. Have you observed an automobile parked in the backyard of 89 Spring Street?
A: He had an old white Lincoln there for a couple of years, I remember. He had a white Lincoln?
Q: After 1984?
A: 94 or 84?
Q: After 1994 .
A: Yeah, after 94, I dont pay attention. I cant honestly answer that question, because after 94 when I moved out, I just go check on my property. I dont go in the backyard, you know. [Note 87]
The plaintiffs argue that there exists a prescriptive easement acquired through adverse use of the Passageway for the requisite statutory period of twenty years. As they have not owned the property for the requisite period, plaintiffs assert that they may satisfy the twenty year requirement by tacking onto the McQueeneys period of ownership.
G.L. c. 187, § 2, states that [n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years. 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). The elements required to establish a prescriptive easement are identical to those for adverse possession, except that exclusivity need not be proven. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007) (stating that in order to prove a prescriptive easement the property must have been used in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.); Boston Seaman's Friend Society, Inc. v. Rifkin Mgmt. Inc., 19 Mass. App. Ct. 248 , 251-52 (1985). The guiding principle behind the elements of prescriptive easements is not to determine the adverse claimants state of mind, but rather to determine whether there was notice to the true owner, so as to allow for the legal vindication of property rights. See Kendall v. Selvaggio, 413 Mass. 619 , 623-24 (1992); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). Therefore, [a]ll these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, the acts of the wrongdoer are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof of an actual occupancy, clear, definite, positive, and notorious. Cook v. Babcock, 65 Mass. 206 , 209-10 (1853) (emphasis added). The burden of proof rests entirely on the claimant. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). If any of these elements is left in doubt, the claimant cannot prevail. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) (internal citations omitted) (emphasis added). This court is satisfied that the plaintiffs are unable to meet their burden with regard to multiple elements of their claim.
To prove the existence of a prescriptive easement, the adverse use must be continuous and uninterrupted during the statutory period of twenty years. A minimal break in time of three to four weeks has been held sufficient to interrupt the requisite time period. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). Although continuous use does not necessarily mean constant use, the claimant must establish a use that is regular throughout the statutory period. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). [S]poradic use will fail to satisfy this requirement unless the claimants acts are sufficiently pervasive to amount to adverse possession. Pugatch v. Stoloff 41 Mass. App. Ct. 536 , 540 (1996). Intermittent or occasional use is insufficient to meet the requirement of continuous use. See, e.g., Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). But regular seasonal or periodic use may be considered continuous. See Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (noting pattern of regular use on weekends). Whatever breaks the continuity of possession and enjoyment of an easement destroys the effect of the prior use. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007); see Ryan v. Stavros, 348 Mass. 251 , 263-64 (1964) (finding the act of placing horses in the disputed area for a few hours on two occasions were of no effect in terminating the prescriptive easement); Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968) (finding a three week interruption of an adverse use was sufficient to break the element of continuity of possession).
Following the acquisition of the Locus by the plaintiffs in June, 2007, portions of the fences were removed. Vehicles were driven down the Passageway and parked in the backyard, including delivery trucks and moving trucks. The use at the very outset may have been somewhat consistent, but it lasted for several months only until the completion of the renovations to the multi-family dwelling. Upon completion of the renovations in the fall of 2007, certain tenants have parked their vehicles in the backyard. After being asked to refrain from using the Passageway by some of the defendants, the plaintiffs have attempted to minimize their use.
This court specifically finds that from the time the Locus was acquired by the plaintiffs in June of 2007, until the initiation of this action in June of 2009, the use of the Way has not been continuous, but has been intermittent or sporadic. For a brief portion of that time, the record discloses that the use of the Way was permissive in nature. Even were it otherwise, the absence of any use by the McQueeneys from 2002 through 2004 [Note 88] would sufficiently interrupt any period of prescriptive use.
Here, the only testimony that supports the proffered twenty years of continuous use is that of David and Michael McQueeney. Their testimony was plagued by credibility issues, and contradicted by other, more credible, testimony. While Mr. Tauro testified on behalf of plaintiffs regarding use of the Passageway, he resided on Thorndike Street from 1990 until 1994, only. Even then, he alluded not infrequently, to his ability to recall facts and circumstances. He spoke in the broadest terms, having difficulty on occasion placing an activity within one decade or another.
Given the foregoing considerations, and the facts adduced at trial, the court concludes that there was some use made of the Passageway between 1984 and 2002. David McQueeney occasionally visited his mother between 1984 and 1992, and resided with her at the Spring Street residence between 1992 and 2000. However, the court is unable to credit his testimony that he would dismantle, and then reassemble, two fences every time he arrived at, or left his mothers home, particularly in light of the statements of the defendants that they never saw the fences being dismantled or cars parked in the backyard at 89 Spring Street, or that they observed evidence that the fences had been disturbed, over various extended periods of time. Moreover, the court has noted the references in the record to the availability of on-street parking.
Even were the court to agree, arguendo, that a period of prescriptive use had been amply demonstrated, under no circumstances would it conclude (a) that the use had commenced prior to 1984, or (b) that it extended beyond 2002, for a period of eighteen years only. [Note 89] [Note 90]
Michael McQueeney was unable to offer credible testimony as to the use of the property between 1988 and 1993, as he was incarcerated for that period of time. The remainder of his testimony describes intermittent use of the Passageway in the 1990s. His testimony is does not suffice to permit a determination of the dates and frequency of his visits and residency at 89 Spring Street, with a reasonable degree of precision. Such testimony will not therefore, support a claim of continuous adverse use.
For their part, the defendants presented multiple witnesses who testified in similar fashion namely, that the Passageway was not continuously used by the McQueeneys prior to 2004 to provide access to the backyard, and that they did not observe vehicles parked in the backyard until after Ms. Atwell passed away. Defendants, whose properties abut both the Passageway and 89 Spring Street, never saw the two fences being dismantled to allow vehicular access to the backyard. Although the defendants were not constantly monitoring the Passageway, the court credits the testimony of Ellen Adelson who, during her many years of working from her home office overlooking the area in question, neither saw nor heard any disturbance with regard to the fence. The court recognizes that it may have been possible to gain access to the rear yard by dismantling the fences from time to time without notice by the neighbors. However, the court is of the view that consistent use in the manner asserted by the McQueeneys over a twenty-year period would undoubtedly have been observed by those well-situated neighbors in the nearby residential properties.
The evidence presented by both plaintiffs and defendants witnesses leads this court to conclude that the use of the Passageway by the McQueeney family was at best intermittent, occasional, sporadic, and lacking the requisite continuity. Moreover, the questionable credibility on the part of the plaintiffs witnesses as to various critical points, serves merely to buttress this courts conclusion that the plaintiffs have failed to demonstrate that any prescriptive use of the Passageway was sufficiently continuous over any twenty-year statutory period. This deficiency in the statutory requirement, is alone sufficient to dispose of plaintiffs claim. The court need not therefore address the remaining elements required to maintain a claim grounded in a claim of prescriptive use.
Predicated upon the foregoing, this court concludes that plaintiffs have failed to meet the exacting burden of proof required of them by the relevant statutory and decisional law. Consequently, plaintiffs are without rights, prescriptive or otherwise in or over the said Passageway.
Proposed findings of fact and rulings of law are hereby adopted to the extent they are consistent herewith, but are otherwise denied.
Judgment to enter accordingly.
[Note 1] According to plaintiffs counsel, Its the 20 years from up to the time we filed the suit, basically . 1985 to 2009. Tr. 1-15: 11-12, 23.
[Note 2] Trial Exhibit (Ex.) 1. The said deed was recorded with the Middlesex South Registry of Deeds on June 14, 2007 at Book 49608, Page 25.
[Note 3] Joint Pre-Trial Memo., ¶8.
[Note 4] Id. ¶ 13.
[Note 5] Id. ¶ 11.
[Note 6] Id. ¶ 12.
[Note 7] Trial Transcript (Tr.) 1-112:23.
[Note 8] See Ex. 1.
[Note 9] See Exhibit 13. See Tr. 1-129:8-11. Ms. Raymond testified that she remembers there always being a chain-link fence across the property, with just a pedestrian gate in it, not wide enough for vehicles to pass. Tr. 3-30:1-18. The second, wooden, fence was erected when a pool was installed in the backyard of 89 Spring Street in order to prevent people from accessing the pool. Tr. 3-10-15. Nancy Spence testified that while she lived on Thorndike Street, the backyard of 89 Spring Street was fully enclosed by fences, although there was a pedestrian gate in the fence. Tr. 2-138:20 to 2-139:4. The gate, however, was not wide enough to allow cars to access the backyard. Tr. 2-139:5-16. Mr. Coffin testified that when he purchased his home on Thorndike Street, the fence separating 89 Spring Street from the Passageway had a pedestrian gate that was not wide enough to allow a vehicle to pass through it. Tr. 2-127:16-23.
[Note 10] Tr. 1-112:4-5 David McQueeney testified as follows:
Q: The pool was removed in you said, what, 83?
A: Somewhere around there, yeah.
Michael McQueeney testified that the pool was removed in 1983 (I remember it come down in 1983, and I dont know what the difference is in the year. Tr. 2-22:4-6). When confronted with his conflicting deposition testimony, Michael McQueeney conceded that at his deposition, he had stated that the pool was taken down in 1984. Tr. 2-23:12-23
Q: And later on on that same page when you were continuing your testimony, didnt you also say again under oath, After the pool was taken down . That was in 84. Isnt that what you testified under oath, sir?
A: If it says it here, yes.
[Note 11] See Tr. 1-112:14-15.
[Note 12] Tr. 1-138:6-9
Q: So the only time in the last 20 years that you lived continuously at 89 Spring Street was from 1992 to the year 2000; is that right?
[Note 13] See Tr. 1-112:19-21 ([In 84] Id pull in there [the yard] when Id come to visit my mother.
Q: And that type of use continued until when?
A: Until she died, two years before she died.
Mr. McQueeneys testimony regarding the frequency of his visits to his mothers home was replete with uncertainty and speculation. See Tr. 1-116:15-16 (When Id come visit my mother, maybe once or twice a week Id pull in there.); Tr. 1-117:1-2: 6 (David McQueeney testified that he probably went with my kid to visit my mother; probably every weekend.).
[Note 14] See e.g., Tr. 1-129:12-21
Q: So to gain the access to get in behind that fence that youve described on your direct examination, what you would have to do is peel back the chain-link fence; correct?
A: It rolled right over, yeah.
Q: And then you would have to take apart the big red fence; correct?
A: Just one section come apart.
Q: But youd have to take it apart; right?
[Note 15] Tr. 2-30:20-21.
[Note 16] Tr. 2-31:6-7.
[Note 17] Tr: 2-24: 4-5.
[Note 18] Tr. 2-27: 12.
[Note 19] Tr. 1-124: 14-16.
[Note 20] Tr. 1-125: 3-10.
[Note 21] See Tr. 2-32: 10-12.
[Note 22] Tr. 2-15:2-7; 2-15:11-13.
[Note 23] See Tr. 2-38:2-16.
[Note 24] Tr. 2-16:2-5 (Q: How do you know they were aware of this [them using the passageway and driving into the lawn]?
A: Well, Ive seen them while I was out there. I mean, Ive seen people out there, you know what I mean. Wed run into them and say hi, once in a while.).
See also the testimony of David McQueeney at Tr. 1-114: 23-24. When asked if anyone [could] see over through these fences, Mr. McQueeney responded Of course.
[Note 25] There are numerous examples of this phenomenon in Michael McQueeneys testimony. See, for example Tr. 2-9:2-9 concerning the year of sale to the plaintiff and the plaintiffs name. See also, by way of example Tr. 2-16: 16-22:
Q: How about your friends or family, did they use this rear road?
A: Yeah, my brother andhe would bring in his girlfriends car sometimes, or hes put his car back there. And my brother with the truck for a while I was away; they said they were putting it in the yard.
[Note 26] Tr. 2-143; 2-144. She testified that the period during which she worked from home was maybe 1995 to 2000. I honestly dont recall.
[Note 27] Tr. 2-138; 2-139.
[Note 28] Tr. 2-139.
[Note 29] Tr. 2-140.
[Note 30] Tr. 2-140; 2-141.
[Note 31] Tr. 2-148.
[Note 32] Tr. 2-151.
[Note 33] Tr. 2-154. See also, Tr. 1-161:4-10.
[Note 34] Tr. 3-9:1.
[Note 35] Tr. 3-15:2-4.
[Note 36] Tr. 3-22:12-20.
[Note 37] Tr. 3-14.
[Note 38] Tr. 3-14 and 3-15.
[Note 39] Tr. 3-16.
[Note 40] See id. (A: So that if there are disruptions or noises or whatever, its right there in front of me.
Q: But disruptions or noises, if someones just passing through . . . .
A: That I would consider a disruption and noise. And certainly somebody pulling a fence apart to pull a car into the backyard, I would hear it.).
[Note 41] Tr 2-125, Tr.2-126.
[Note 42] Tr. 2-129.
[Note 43] TR. 2-130.
[Note 44] Tr. 2-132.
[Note 45] Tr. 2-81:3-12.
[Note 46] David McQueeney testified that between 2002 and 2004, when his mother passed away, there was no parking in the backyard necessitating travel over the Passageway. Tr. 1-112:23, Tr. 1-124:3-6
Q: So there was no parking back there from 2002 until she passed away in 2004, at least; youd agree with me on that, correct?
A: Yeah, exactly.
Peter Crawley saw cars parked in the backyard beginning in February 2006, but not prior to that time. Tr. 2-91:12-15
Q: And did you ever see any automobiles in the back of 89 Spring Street parking prior to 2006 , in February of 2006?
Although he never saw cars driving into or out of the yard, David James Prum did observe vehicles parked in the backyard for approximately a year and a half prior to selling his home in 2007. Tr. 2-161:4-10.
[Note 47] David McQueeney testified that between 2004 and 2006 the white Lincoln and red Toyota were parked in the backyard, but were not driven in the Passageway. Tr. 1-132:9-10
Q: So the point is is that those two cars sat in that backyard for two years?
Although David McQueeney testified that he used to drive the vehicles into the Passageway (Well, those cars were there for two years, but I moved them around because I didnt want the tires to get flat, you know. Tr. 1-116:9-11), this court finds any suggestion that the vehicles were moved with some frequency out to the Passageway for the sake of the tires, lacks credibility.
Michael McQueeney testified that subsequent to his mothers passing in 2004, two cars were parked in the backyard, but did not use the Passageway for ingress or egress. Tr. 2-52:10-18
Q: But both of those cars sat in the rear yard of 89 Spring Street for almost two full years after your mother died?
A: Im not exactly sure how long they were there.
Q: But they sat there for a long time; is that right?
A: They were there for a while.
Q: And they werent using the passageway as an access and egress to the street; is that right?
A: No, just turn them around.
Mr. Crawley saw cars parked in the backyard beginning in February 2006, but not prior to that time. See Tr. 2-91:12-15. Mr. Coffin testified that he saw two vehicles parked on the property after 2004 for approximately a year. Tr. 2-132:14-19. Ms. Adelson testified that in 2005 cars were brought into the backyard. See Tr. 3-16:6-19 (They brought two vehicles into the backyard [in 2005] through where they had taken down the fence and put that temporary chain-link gate up. They brought them into the backyard, and they garaged them there. I never saw them move the cars out until the property was sold and they moved them out and that was it.). Ms. Raymond testified that after Joan Atwells death, cars were placed in the backyard, but were not driven into or out of the property, merely parked in the yard. See Tr. 3-32:2-16
[Note 48] TR. 1-118:8-23.
[Note 49] Tr. 1-40:2-14.
[Note 50] Tr. 1-53:9-13 (Q: Did you ever see the two cars that you say were parked in the read of 89 Spring Street prior to your purchase, did you ever see those two cars move out of those spots? A: No.).
[Note 51] Tr. 1-54:5-7.
[Note 52] See Tr. 1-57:13-16. Ms. Zhang testified, in part, as follows:
Q: When you received that deed, you understood that your boundary line ended at the beginning of this passageway; isnt that right?
[Note 53] See Tr. 1-66:1-4. See also Tr. 3-17: 16-24; Tr. 3-17: 19-22; Tr. 3-18:1-2.
[Note 54] Tr. 1-37:17 to 1-38:3
Q: Have you used this passageway to park in your backyard?
A: Yes. When I just bought the house I use a lot because after I purchase house the house is very worse, very old, so I need to do some renovation. And I ask some plumber and electrician and some contractor and the architecture, not only one, because I need I try to find some people do the better job, the price is lower. So a few people come in my house who gave me the estimates. I park my car in backyard; they park their car in the backyard too.).
[Note 55] See id.
[Note 56] TR. 1-42.
[Note 57] Tr. 1-44.
[Note 58] Tr. 3-23: 17-19.
[Note 59] Tr. 1-46:7-11.
[Note 60] Tr. 1-46: 2-6.
[Note 61] Ms. Raymond is 78 years old.
[Note 62] Tr. 3-31; Tr. 3-32.
[Note 63] Tr. 3-33; 1-10.
[Note 64] Tr. 3-32: 14-16. Several witnesses referenced the white Lincoln Town Car and red Toyota that were parked in the backyard for an extended period of time after Ms. Atwells passing.
[Note 65] See Ms. Zhangs testimony on cross-examination. Tr. 1-47 1-49.
[Note 66] See 1-35:10-15:
Q: Is that door in the back of the house the only means to access large pieces of furniture?
A: Yes, thats the only place.
Q: And have your tenants done this?
A: Yes, they did. Every time they move in, move out, they use that.
[Note 67] Tr. 1-36:5-6:
Q: And where does the truck park?
A: They park in the backyard, in my yard.
[Note 68] Tr. 1-69:5-10 (Q: Sometimes you use it for drop-offs or deliveries; is that what your testimony is? A: Yes. Q: But you dont use it for parking on a daily basis; is that correct? A: Yes.).
[Note 69] Tr. 1-72:16-18.
[Note 70] Tr. 1-74:15-16. There was no indication whether a current tenant or prior tenant owned and parked the motorcycle.
[Note 71] Tr. 1-70:1-3.
[Note 72] See.Tr. 1-46: 2-6. Ms. Zhang testified that upon receipt of an letter from the defendants attorney her own lawyer advised her to [t]ry to minimize use of that street [the Way], so I tried.
[Note 73] Ex. 23
[Note 74] Tr. 2-79:16 to 2-80:8.
[Note 75] Tr. 2-77: 6-11. See the testimony of David McQueeney at Tr. 1-116: 21-22. Mr. McQueeney acknowledged the availability of street parking. See also Tr. 1-115:22-23 in which David McQueeney made reference to a residential parking sticker.
[Note 76] Tr. 1-81:7-8. Mr. Tauro testified that while he owned the property at 88 Thorndike
Street that it consists of two lots 84 and 86 Thorndike Street. Tr. 1-79: 21-23; Tr. 1-80: 6-8.
[Note 77] Tr. 1-81:7-8.
[Note 78] Tr. 1-81:12.
[Note 79] Tr. Tr. 1-81: 23-24; Tr. 1-82:1-2.
[Note 80] Tr. 1-82:13-18.
[Note 81] Tr. 1-83: 16-18. (Yeah, there was a car in their backyard, but I dont know if he worked on it.)
[Note 82] Tr. 1-84 6-10. Mr. Tauro testified that cars could be there [p]robably like a week. Couple weeks at a time. No specifics were provided, as to the number of vehicles observed, the frequency of the repair work, or the use of the Way to access the backyard.
[Note 83] Tr. 1-84: 14-15.
[Note 84] Tr. 1-92:21-24.
Q: So when you lived there between 1990 and 1994, was it your testimony that there was a car [an old Chevrolet] parked there, parked in the backyard of 89 Spring Street?
A: Yes, there was.
Tr. 1-98:24 to 1-99:10
Q: And is it fair to say that the instances that you referred to when you saw cars parked in the back of the 89 Spring Street property, those were instances when there was a car back there that the McQueeney boys were working on?
A: Right. He had an old Chevy .
[Note 85] Tr. 1-85:12-18. It is not clear how this could be accomplished given the configuration of the respective fences.
[Note 86] See, for example Mr. Tauros testimony regarding an old Chevrolet parked in the backyard.
Q: And do you know when that was?
A: I dont remember. It was so long ago.
Q: Was it prior to 2007.
A: Yes . Tr. 1-92; 17-18.
[Note 87] Tr. 1-93: 7-24; Tr. 1-94: 1-4.
[Note 88] The McQueeneys testified that there was no parking in the backyard during this period of time owing to the express wish of their mother.
[Note 89] Even reliance on the disputed date of 1983 as the commencement of use is insufficient to meet the statutory twenty-year period.
[Note 90] Any use after the two year break from 2002 to 2004, would merely commence a new period of adverse use. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 (1968).