ALEXANDER vs. JUCHNO, MISC 10-437103

There is a private way in Otis, Massachusetts, near the Otis/Blandford town line, known as Drive D. Drive D runs westerly from Ridge Avenue, a public way, to the Otis Reservoir. The plaintiffs own lots abutting both sides of Drive D along its length from Ridge Avenue to the reservoir. The defendants own lots east of Ridge Avenue lying in Otis and Blandford, and an island lying in the Otis Reservoir just offshore from Drive D known as Prince Island. In this action, the plaintiffs seek to establish both their ownership of Drive D and the lack of any rights in the defendants to pass over Drive D. The defaults of many of the defendants have entered; claims against other of the defendants have been dismissed. The plaintiffs have brought the Plaintiffs Motion for Partial Summary Judgment against the remaining defendants who have appeared and answered. For the following reasons, the Plaintiffs Motion for Partial Summary Judgment is allowed in part and denied in part as follows. None of the remaining defendants has an easement by deed, an easement by estoppel, or a public prescriptive easement to use Drive D. Only the owner of Prince Island can seek to establish an easement by necessity over Drive D. All of the remaining defendants may seek to establish implied easements or easements by common scheme to use Drive D. Defendants John J. Rhodes, the Valenzisi Family Trust, and Timothy Harris have no prescriptive easement to use Drive D; the remaining defendants may seek to establish prescriptive easements.

Procedural Background

The plaintiffs Gregg J. Alexander and Monica L. Alexander, Leonard R. Alexander, Gary A. Brazee and Marie Brazee, Marshall H. Beckman, Marsha S. Beckman and Warren Beckman, Paul R. Mastrianni and Debra M. Mastrianni, William R. Ahrens and Lois W. Ahrens, and Henry L. Kozlowski filed their Complaint on August 23, 2010. They filed their First Amended Complaint to Require Defendants to Try Title, to Quiet Title and for Declaratory Relief (amended complaint) on September 1, 2010. The amended complaint names as defendants Edward Juchno and Debra D. Juchno, Alfred J. Ducharme, Jr. and Rita G. Ducharme, William Follert, Francis J. Schillinger and Patricia M. Schillinger, Donald Blier and Arthur Blier, Stephen Doyle and Bridget K. Doyle, Nickolas B. Peters and Anna M. Peters, Renata A. Legowski, Gerald H. Durand, Jr., John J. Rhodes, Cora J. Lindsey and Mark S. Lindsey, William P. Mooney, Jr. and Lori Martin, Donald G. Harris and Mary C. Harris, Kenneth N. Grant, Ronald L. Grant, Michael D. Poirier, Myles E. Conway and Katherine Conway, Walter Picard and Marion C. Picard, Mortgage Electronic Registration Systems, Inc. as Nominee for Fleet National Bank, John B. Tonlino, III and Kimberly A. Tonlino, Gilbert M. Faulkner, Donald Blier, The Valenzisi Family Trust, Charles K. Holley, Jay S. Holley and Lorraine M. Holley, Joshua A. Weinstein and Melissa B. Weinstein [Note 1], Flagstar Bank, FSB, Beverly L. Powers, James M. Sullivan and Shirley M. Sullivan, Woronoco Savings Bank, Roberta F. Ras, Henry Cichon and Patricia Cichon, Charles W. Salkewicz and Sally Salkewicz, Susan Dakin, Jean Dakin and Timothy Harris, John Kawczynski, Daniel J. Andrisco and Julia E. Andrisco, R. Scott Freebern, Francis R. Zabik and Francine A. Caulfield, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc.

Francis R. Zabik and Francine A. Caulfield filed their Answer on October 1, 2010; Francis J. Schillinger and Patricia M. Schillinger filed their Answer to Plaintiffs Complaint on October 4, 2010. The Answer of Defendants Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, Gerald H. Durand, Jr. , Kenneth N. Grant, Ronald L. Grant, Michael D. Poirier, Myles E. Conway, Gilbert M. Faulkner, Valenzisi Family Trust, Charles K. Holley, Lorraine M. Holley, Beverly L. Powers, James M. Sullivan, Shirley M. Sullivan, Henry Cichon, Patricia Cichon, Charles W. Salkewicz, Sally Salkewicz, Timothy Harris, John Kawczynski, R. Scott Freebern, Francis R. Zabik and Francine A. Caulfield, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc., to Plaintiffs Complaint and Counterclaim (Peters Defendants counterclaim) was filed on November 29, 2010. On November 30, 2010, Donald Blier, John B. Tonlino, III, and Kimberly Tonlino filed their answer and counterclaim (Blier/Tonlino counterclaim), Francine A. Caulfield and Francis R. Zabik filed their Amended Answer and Counter-Claims, and Rita G. Ducharme filed her Answer, Affirmative Defenses and Counterclaim (Ducharme counterclaim). The Answer and Third Party Complaint of Defendants Myles E. Conway and Katherine Conway was filed on December 2, 2010.

The plaintiffs filed their answer to the Peters Defendants counterclaim on December 16, 2010. They filed their answers to the Blier/Tonlino counterclaim and the Ducharme counterclaim on December 21, 2010. John J. Rhodes filed his answer on January 6, 2011, Francis J. Schillinger and Patricia M. Schillinger filed their answer and counterclaim on January 11, 2011, and Joshua A. Weinstein and Melissa B. Weinstein filed their answer and counterclaim (Weinstein counterclaim) on January 18, 2011. The plaintiffs answered the Weinstein counterclaim on January 24, 2011.

The defaults of defendants Edward Juchno, Debra D. Juchno, Arthur Blier, Stephen Doyle, Bridget K. Doyle, Cora J. Lindsey, Mark S. Lindsey, Donald G. Harris, Mary C. Harris, Walter Picard, Marion C. Picard, Mortgage Electronic Registration Systems, Inc. as Nominee for Fleet National Bank, Flagstar Bank, FSB, Woronoco Savings Bank, Roberta F. Ras, Susan Dakin, Jean Dakin, Daniel J. Andrisco, and Julia E. Andrisco were entered on January 18, 2011. The default of defendant Ras was lifted on March 14, 2011.

The Amended Answer of Defendants Gerald H. Durand, Jr. , Kenneth N. Grant, Ronald L. Grant, Michael D. Poirier, Gilbert M. Faulkner, Valenzisi Family Trust, Charles K. Holley, Jay S. Holley, Lorraine M. Holley, Beverly L. Powers, James M. Sullivan, Shirley M. Sullivan, Roberta F. Ras, Henry Cichon, Patricia Cichon, Charles W. Salkewicz, Sally Salkewicz, Timothy Harris, John Kawczynski, R. Scott Freebern, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc., to Plaintiffs Complaint and Counterclaim (Grant Defendants counterclaim) was filed on March 14, 2011. The plaintiffs filed their answer to the Grant Defendants counterclaim on May 25, 2011. The Answer, Affirmative Defenses and Counterclaim of Defendants Nickolas B. Peters, Anna M. Peters, and Renata A. Legowski to First Amended Complaint (Peters/Legowski counterclaim) was filed on June 23, 2011.

The defaults of defendants William Follert, Gerald H. Durand, Jr., William P. Mooney, Jr., Lori Martin, Michael D. Poirier, Gilbert M. Faulkner, Charles K. Holley, Jay S. Holley, Lorraine M. Holley, Beverly L. Powers, James M. Sullivan, Shirley M. Sullivan, Roberta F. Ras, Henry Cichon, Patricia Cichon, Charles W. Salkewicz, Sally Salkewicz, and John Kawczynski were entered on May 4, 2012. The claims against and counterclaims by Rita G. Ducharme were dismissed with prejudice on June 13, 2012. The claims against and third party complaint of Myles E. Conway and Katherine Conway were dismissed with prejudice on June 27, 2012. The claims against and counterclaims of Francis J. Schillinger and Patricia M. Schillinger were dismissed with prejudice on November 7, 2012.

The remaining defendants against whom defaults have not been entered or claims dismissed are as follows: Donald Blier, Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John J. Rhodes, Ronald L. Grant, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Family Trust, Joshua A. Weinstein, Melissa B. Weinstein, Timothy Harris, R. Scott Freebern, Francis R. Zabik, Francine A. Caulfield, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc. (hereinafter, defendants).

On August 14, 2012, the plaintiffs filed Plaintiffs Motion for Partial Summary Judgment; Plaintiffs Memorandum for Partial Summary Judgment Against All Defendants on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel; Plaintiffs Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment Against All Defendants on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel; Affidavit of Leonard Alexander; Plaintiffs Memorandum in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims; Plaintiffs Concise Statement of Material Facts in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims; and Affidavit of Erin F. Thron, Esq. of Service of Request for Admissions upon Defendant R. Scott Freebern.

On September 25, 2012, the defendants filed Defendants Joint Memorandum in Opposition to Plaintiffs Motion for Summary Judgment on Prescriptive Easement Claims; Defendants Response to Plaintiffs Concise Statement of Material Facts in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims and Defendants Statement of Additional Facts in Support of Defendants Opposition to Summary Judgment; Defendants Appendix to Defendants Response to Plaintiffs Concise Statement of Material Facts in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims and Defendants Statement of Additional Facts in Support of Defendants Opposition to Summary Judgment; Defendants Joint Memorandum in Opposition to Plaintiffs Motion for Summary Judgment on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel; Defendants Response and Additional Facts in Response to Plaintiffs Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment Against All Defendants on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel; and Defendants Appendix to Response and Additional Facts in Response to Plaintiffs Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment Against All Defendants on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel. On October 1, 2012, defendant R. Scott Freebern filed his Motion to Withdraw Admissions. On October 2, 2012, the defendants filed the Defendants Supplemental Appendix to Defendants Response to Plaintiffs Concise Statement of Material Facts in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims and Defendants Statement of Additional Facts in Support of Defendants Opposition to Summary Judgment and the Defendants Supplemental Appendix to Response and Additional Facts in Response to Plaintiffs Statement of Undisputed Facts in Support of Their Motion for Partial Summary Judgment Against All Defendants on the Questions of Easement By Deed, Easement By Necessity, Implied Easement, Easement By Common Scheme and Plan, and Easement By Estoppel.

On October 5, 2012, the plaintiffs filed Plaintiffs Reply Memorandum in Support of Plaintiffs Motion for Partial Summary Judgment on Prescriptive Easement Claims; Plaintiffs Reply to Defendants Response to Plaintiffs Concise Statement of Material Facts in Support of Their Motion for Partial Summary Judgment on Prescriptive Easement Claims and Defendants Statement of Additional Facts in Support of Defendants Opposition to Summary Judgment; Plaintiffs Motion to Strike the Affidavit of Linda Prince Kendrick; Plaintiffs Motion to Strike the Affidavit of James Sullivan; Plaintiffs Motion to Strike the Affidavit of Frank E. Pollard; Plaintiffs Motion to Strike the Supplemental Affidavit of James Sullivan; and Plaintiffs Opposition to Defendant R. Scott Freeberns Motion to Withdraw Admissions.

On October 11, 2012, the defendants filed the Affidavit of Joshua Weinstein. On November 6, 2012, they filed Defendants Joint Opposition to Plaintiffs Motion to Strike Affidavit of Linda Prince Kendrick and Frank E. Pollard. The court heard argument on the Plaintiffs Motion for Partial Summary Judgment and the accompanying motions on November 7, 2012. Plaintiffs Motion to Strike the Affidavit of Linda Prince Kendrick and Defendant R. Scott Freeberns Motion to Withdraw Admissions were allowed. Plaintiffs Motion to Strike the Affidavit of James Sullivan, Plaintiffs Motion to Strike the Affidavit of Frank E. Pollard, and Plaintiffs Motion to Strike the Supplemental Affidavit of James Sullivan were denied. The Plaintiffs Motion for Partial Summary Judgment was taken under advisement. This order follows.

Summary Judgment Standard

Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Factual Background

Based on the record, the court finds the following facts are undisputed:

Plans

Drive D is a private way located in Otis, Massachusetts, running westward from a public way called Ridge Avenue to the shore of the Otis Reservoir, as shown on a plan entitled Plan of Lots of Otis Reservoir-Otis, Mass. Owned by P&M, Inc. Scale 1=200 April 12, 1949 E.B. Lewis Engr West Spfld, Mass., recorded in the Berkshire Middle District Registry of Deeds (Berkshire registry) in Plan Book 417-B, Page 77 on November 24, 1949 (1949 P&M Plan). In addition to Drive D, the 1949 P&M Plan depicts Drives A, B, C, E, F, and G, and lots 1 through 49. Lots 1 through 43 lie between Ridge Avenue and the reservoir; lots 44 through 49 lie east of Ridge Avenue.

In October of 1953, the 1949 P&M Plan was revised to add additional information. This revised plan is entitled Plan of Lots of P. & M., Inc. of Westfield, Mass. Laid Out By E.B. Lewis, April 12, 1949 Survey Completed By C.E. Walker, Oct., 1953 (1953 Walker Plan). The 1953 Walker Plan does not appear to have been recorded.

A third plan, entitled Plan of Land Now or Formerly of Prince & Prince Realty, Inc. Otis, Mass. 100 Ft. = 1 In. Nov., 1965, signed by Carl E. Walker, was recorded in the Berkshire registry in Plan Book 417-F, Page 40 on December 17, 1965 (the 1965 Prince & Prince Plan). The 1965 Prince & Prince Plan depicts land in Otis lying just west of Ridge Avenue, including the same lots 44 through 49 shown on the 1949 P&M Plan, as well as lots numbered 50 through 68. It also depicts Drives A through E extending west of Ridge Avenue.

A fourth plan, entitled Plan of Land of Prince & Prince Realty, Inc. Blandford, Mass. 150 Ft. = 1 In. Jan., 1964, also stamped by Carl E. Walker, was recorded in the Hampden County Registry of Deeds (Hampden registry) in Plan Book 95, Page 64 on May 26, 1964 (the 1964 Prince & Prince Plan). The 1964 Prince & Prince Plan depicts land in Blandford along the town line with Otis, just east of and abutting the land shown on the 1965 Prince & Prince Plan. The land shown on the 1964 Prince & Prince Plan is divided into lots 1B through 31B and several ways which connect to the west with D Street as shown on the 1965 Prince & Prince Plan (which in turn connects to Drive D) and to the east with Old Blandford Road.

There is an island in Otis Reservoir located just off Drive D, known as Prince Island. It is disputed as to whether Prince Island has always been separated from the shore, or has from time to time been connected by land. Prince Island is not shown on the 1949 P&M Plan, the 1965 Prince & Prince Plan, or the 1964 Prince & Plan but does seem to appear on the 1953 Walker Plan and some USGS maps and is referred to in various deeds.

For ease of reference, a sketch plan combining the 1949 P&M Plan, the 1965 Prince & Prince Plan, and the 1964 Prince & Plan, not to scale and with Prince Island added, is attached to this Memorandum and Order.

The parties and their lots

The plaintiffs lots are all depicted on the 1949 P&M Plan. Plaintiffs Gregg J. Alexander and Monica L. Alexander own the property shown as Lot 8 on the 1949 P&M Plan by a deed from Winifred R. Alexander dated and recorded in the Berkshire registry at Book 1458, Page 825 on September 29, 1994 (Alexander Lot 8). Plaintiff Leonard R. Alexander owns the property shown as Lot 7 on the 1949 P&M Plan by a deed from P&M, Inc. to Leonard R. and Winifred R. Alexander dated October 22, 1953 and recorded in the Berkshire registry at Book 603, Page 521 on November 4, 1953 (Alexander Lot 7). Plaintiffs Gary A. Brazee and Marie Brazee own the property designated as Lot 23B, that property being one part of the property shown as Lot 23 on the 1949 P&M Plan, by a deed from Annette F. Brazee dated and recorded in the Berkshire registry at Book 4572, Page 245 on July 12, 2010 (Brazee Lot 23B). Plaintiffs Marshall H. Beckman, Marsha S. Beckman, and Warren Beckman own the property designated as Lot 23A, that property being the other part of the property shown as Lot 23 on the 1949 P&M Plan, by a deed from Bruce D. Gamwell and Susan L. Gamwell dated August 8, 1986 and recorded in the Berkshire registry at Book 1159, Page 543 on August 18, 1986 (Beckman Lot 23A). Plaintiffs William R. Ahrens and Lois W. Ahrens own the property shown as Lot 22 on the 1949 P&M Plan by a deed from Thomas J. Madison a/k/a Thomas J. Madesky dated February 6, 1981 and recorded in the Berkshire registry at Book 1042, Page 666 on February 9, 1981 (Ahrens Lot 22). Plaintiffs Paul R. Mastrianni and Debra M. Mastrianni own the property shown as Lot 36 on the 1949 P&M Plan by a deed from Paul R. Mastrianni dated and recorded in the Berkshire Registry at Book 1159, Page 736 on August 18, 1986 (Mastrianni Lot 36). Plaintiff Henry L. Kozlowski owns the property shown as Lot 37 on the 1949 P&M Plan by a deed from David M. Doyle dated June 28, 2000 and recorded in the Berkshire registry at Book 1735, Page 188 on June 30, 2000 (Kozlowski Lot 37). The plaintiffs own all of the property abutting Drive D between Ridge Avenue and the reservoir with the exception of a portion owned by the Commonwealth of Massachusetts.

Defendant Donald Blier (Blier) and defaulted defendant Arthur Blier own the property shown as Lot 65 on the 1965 Prince & Prince Plan, by a deed from Berkshire Country Properties, Inc. dated April 16, 1987 and recorded in the Berkshire registry at Book 1209, Page 53 on September 29, 1987 (Blier Lot 65). The properties of the remaining individual defendants are all shown on the 1964 Prince & Prince Plan. Defendants Nickolas B. Peters and Anna M. Peters, husband and wife, and Renata A. Legowski (Peters/Legowski) as tenants in common with defaulted defendants Stephen Doyle and Bridget K. Doyle, husband and wife, own the property shown as Lot 1B on the 1964 Prince & Prince Plan, by a deed from Robert C. Lariviere dated February 8, 2010 and recorded in the Hampden registry at Book 18186, Page 47 on February 12, 2010 (Peters/Legowski Lot 1B). Defendant John J. Rhodes owns the property shown as Lot 3B on the 1964 Prince & Prince Plan, by a deed from Donald Blier and Arthur Blier dated May 18, 1987 and recorded in the Hampden registry at Book 6512, Page 455 on June 5, 1987 (Rhodes Lot 3B). Defendants Kenneth N. Grant and Ronald L. Grant, Sr. own the property shown as Lot 7B on the 1964 Prince & Prince Plan, by a deed from Shirley A. Grant, Kenneth N. Grant, Gray L. Grant, and Ronald L. Grant Sr. by a deed dated April 26, 2003 and recorded in the Hampden registry at Book 13310, Page 136 on June 24, 2003 (Grant Lot 7B). Defendants John B. Tonlino, III and Kimberly A. Tonlino own the property shown as Lot 11B on the 1964 Prince & Prince Plan, by a treasurers deed from the Town of Blandford dated September 27, 2006 and recorded in the Hampden registry at Book 16218, Page 240 on September 28, 2006 (Tonlino Lot 11B). Blier owns the property shown as Lot 13B on the 1964 Prince & Prince Plan (Blier Lot 13B), by a deed from Arthur Blier dated May 20, 2005 and recorded in the Hampden registry at Book 15082, Page 248 on June 9, 2005 (Blier Deed). Defendant Valenzisi Family Trust, Frank T. Valenzisi and Jean M. Valenzisi, trustees (the Valenzisi Trust), owns the property shown as Lot 14B on the 1964 Prince & Prince Plan, by a deed from Frank Valenzisi and Jean Valenzisi dated September 26, 2006 and recorded in the Hampden registry at Book 16389, Page 434 on December 14, 2006 (Valenzisi Lot 14B). Defendants Joshua A. Weinstein and Melissa B. Weinstein own the property shown as Lot 17B on the 1964 Prince & Prince Plan, by a deed from John D. Rutherford and Victoria D. Rutherford dated July 11, 2003 and recorded in the Hampden registry at Book 13395, Page 596 on July 21, 2003 (Weinstein Lot 17B). By the Blier Deed, Blier also owns the property shown as Lot 19B on the 1964 Prince & Prince Plan (Blier Lot 19B) and the property shown as Lot 23B on the 1964 Prince & Prince Plan (Blier Lot 23B). Defendant Timothy Harris, with defaulted defendants Susan Dakin and Jean Dakin, owns the property shown as Lot 27B on the 1964 Prince & Prince Plan, by a deed from Beverly A. Harris dated February 25, 2003 and recorded in the Hampden Registry at Book 12978, Page 336 on February 27, 2003 (Harris Lot 27B). Defendant R. Scott Freebern owns the property shown as Lot 30B on the 1964 Prince & Prince Plan, by a deed from Robert W. Sullivan dated January 25, 2007 and recorded in the Hampden registry at Book 16490, Page 362 on February 5, 2007 (Freebern Lot 30B). Defendant Francis R. Zabik owns a life estate, with defendant Francine A. Caulfield owning the remainder interest, in the property shown as Lot 31B on the 1964 Prince & Prince Plan, by a deed from Francis R. Zabik dated April 28, 2009 and recorded in the Hampden registry at Book 17763, Page 96 on April 29, 2009 (Zabik/Caulfield Lot 31B).

Defendant Island Acres Property Owners Association, Inc. (Island Acres) was a Massachusetts non-profit corporation that was organized on July 22, 1976, involuntarily dissolved on November 17, 1986, and revived on November 3, 2009. Defendant Prince Island Association, Inc. (PIA) was organized January 31, 2008.

Title history

George F. Marcoulier and Arthur D. Marcoulier conveyed all of the property at issue in this action to Ralph A. Prince and George R. Mills by a deed dated September 13, 1946 and recorded in the Berkshire registry at Book 537, Page 489 on November 17, 1948. The property described in this deed includes all of the subject property now belonging to the plaintiffs and defendants. Ralph A. Prince and George R. Mills conveyed this same property to P&M, Inc. (P&M) by a deed dated August 4, 1948 and recorded in the Berkshire registry at Book 543, Page 393 on November 17, 1948. [Note 2]

On October 8, 1953, P&M conveyed Alexander Lot 8 to William I. Rosenfeld and Ellen F. Rosenfeld by a deed recorded in the Berkshire registry on November 3, 1953 at Book 603, Page 521. This deed describes one bound of Alexander Lot 8 as along Drive D and contains the following language: The above described premises is conveyed together with a right of way from the County Road as set forth in a Deed from George R. Mills and Ralph A. Prince to P&M, Inc. dated August 13, 1953, and recorded in Berkshire Middle District Registry of Deeds, Book 601, Page 581, and in Hampden County Registry of Deeds, Book 2267, Page 340 (the 1953 Deed). [Note 3] Winifred R. Alexander then conveyed Alexander Lot 8 to plaintiffs Gregg J. Alexander and Monica L. Alexander by a deed recorded on September 29, 1994 as described above. [Note 4] That deed provides that Alexander Lot 8 is conveyed [t]ogether with all of the grantors right, title and interest in said Drive D and together with a right of way from County Road as set forth in the 1953 Deed.

As discussed above, on October 22, 1953 plaintiff Leonard R. Alexander, and his wife, Winifred R. Alexander acquired Alexander Lot 7 by a deed recorded on November 3, 1953. This deed describes one bound of Alexander Lot 7 as along Drive D and contains the following language: The above described premises is conveyed together with a right of way from the County Road as set forth in the 1953 Deed.

On January 11, 1955 P&M granted a utility easement to two utility companies by an easement recorded in the Berkshire registry at Book 621, Page 347 on January 14, 1955 (the utility easement). The utility easement provides:

P.&M. Incbeing the owner of certain lots 1 to 49 inclusive (excluding lots #2, #4 to #15 inclusive, #26 and #29 said lots having been sold by said corporation) together with the fee in the several roads, drives or ways located in the town of Otisand shown on [the 1949 P&M Plan]hereby grants to WESTERN MASSACHUSETTS ELECTRIC COMPANY, a Massachusetts corporation, and NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, a New York corporation the right to construct, operate, maintain, repair, and renew lines for transmission of electricity and intelligence consisting of poles, wires, underground conduits, manholes, cables, street lighting and other fixtures, apparatus and equipment such as said Companies may jointly or severally from time to time see fit to install in said ways; the right to trim trees and install guy wires and anchors in said ways to support and protect said lines; and the right to enter said ways at any time for the above purposes.

P&M conveyed Lot 23, as shown on the 1949 P&M Plan, to plaintiff Edward R. Brazee and Herman B. Pease by a deed dated June 27, 1957 and recorded in the Berkshire registry on July 2, 1957 at Book 658, Page 280. This deed describes one bound of Lot 23 as along Drive D and provides that the premises are conveyed together with a right of way from the County Road as set forth in the 1953 Deed and are further conveyed together with all rights of way over said Drive D and Ridge Avenue. It appears that Lot 23 was divided into Beckman Lot 23A and Brazee Lot 23B by a plan entitled Plan of Lot 23Otis Reservoir, Otis, Mass., Scat [sic] 1 = 60, March, 1981. [Note 5] Bruce D. Gamwell and Susan L. Gamwell conveyed a ½ interest in Beckman Lot 23A to plaintiffs Marshall H. Beckman and Marsha S. Beckman as tenants by the entirety, and a ½ interest in Beckman Lot 23A to plaintiff Warren Beckman by the deed described above. This deed contains the following language: Being the same premises conveyed to the Grantors herein by deed of Doris E. Pease by deed dated September 1, 1983 and recorded in the [Berkshire registry] in Book 1079, Page 933. [Note 6] Annette F. Brazee conveyed Brazee Lot 23B to plaintiffs Gary A. Brazee and Marie Brazee on July 12, 2010 by the deed described above. The deeds to Beckman Lot 23A and Brazee Lot 23B each describe those lots as bounded along the Northerly line of Drive D, but contain no reference to rights in any ways.

Ahrens Lot 22 was conveyed by P&M to George E. Miller and Jeanette M. Miller by a deed dated July 9, 1957 and recorded in the Berkshire registry on July 11, 1957 at Book 659, Page 31. This deed describes Ahrens Lot 22 as bounded along Drive D and contains the following language: The above described premises are conveyed together with a right of way from the County Road as set forth in the 1953 Deed and that the premises are further conveyed together with all rights of way over said Drive D and Ridge Avenue. Thomas J. Madison, a/k/a Thomas J. Madesky conveyed Ahrens Lot 22 to plaintiffs William R. Ahrens and Lois W. Ahrens on February 6, 1981 by the deed described above. This deed describes Ahrens Lot 22 as bounded along Drive D, and conveys the property TOGETHER with a right of way from the County Road as set forth in the 1953 Deed and SUBJECT to rights of Western Massachusetts Electric Company, et al, as set forth in the utility easement. [Note 7]

Mastrianni Lot 36 was conveyed by P&M to Raymond L. Brazee and Nellie M. Brazee by a deed dated July 9, 1957 and recorded in the Berkshire registry on July 11, 1957 in Book 659, Page 28. This deed describes Mastrianni Lot 36 as bounded along Drive D and contains the following language: The above described premises are conveyed together with a right of way from the County Road as set forth in the 1953 Deed and that the premises are further conveyed together with all rights of way over said Drive D and Ridge Avenue. Mastrianni Lot 36 was then conveyed by plaintiff, Paul R. Mastrianni, to himself and plaintiff Debra M. Mastrianni as described above. This deed describes Mastrianni Lot 36 as bounded along Drive D, and conveys the property [t]ogether with a right of way from the County Road as set forth in the 1953 Deed and all rights of way over said Drive D and Ridge Avenue, and [s]ubject to the utility easement. [Note 8]

Kozlowski Lot 37 was conveyed from P&M to Ilmer N. Raitio and Ethel E. Raitio by a deed dated July 31, 1957 and recorded in the Berkshire registry on July 2, 1958 at Book 674, Page 302. This deed describes Kozlowski Lot 37 as bounded along Drive D and contains the following language: The above described premises are conveyed together with a right of way from the County Road as set forth in the 1953 Deed and that the premises are further conveyed together with all rights of way over said Drive D and Ridge Avenue. Plaintiff Henry L. Kozlowski took title to Kozlowski Lot 37 by a deed from David M. Doyle dated June 28, 2000 as described above. [Note 9] This deed describes Kozlowski Lot 37 as bounded along Drive D, and conveys the property together with a right of way from the County Road as set forth in the 1953 Deed and all the rights of way over said Drive D and Ridge Avenue.

By a deed dated December 18, 1958 and recorded in the Berkshire registry on June 22, 1959 at Book 691, Page 126, P&M conveyed to Ralph A. Prince and Bradford A. Prince all of the land of record owned by P&M in Otis and Blandford, Massachusetts, [b]eing all that remains of the premises conveyed to the grantor by deed of Ralph A. Prince and George R. Mills, dated August 4, 1948 and recorded in Hampden [registry]. [Note 10] Ralph A. Prince and Bradford A. Prince then conveyed this same property to Prince & Prince Realty, Inc. (Prince & Prince) by a deed January 9, 1959 and recorded in the Berkshire registry on July 13, 1959 at Book 692, Page 302. [Note 11]

On August 11, 1959, Prince & Prince placed advertisements in the Springfield Union newspaper. The advertisements offered an island and large summer lots for sale.

In 1960, Prince & Prince began developing the road over what was delineated as Drive D on the 1949 P&M Plan and as early as 1960 built a footbridge at the end of Drive D connecting it to Prince Island in order to facilitate access.

In 1963, Brad Prince published the following advertisement in the Springfield Union: OTIS RESERVOIR, Otis, Mass. first offering, exclusive, restricted, 2 acre estate, full privileges of island recreational area. Worth $12,600 if subdivided. Initial offering $3000. Also other lots from $1500. By appointment only. Call Brad Prince, Westfield, Mass. 568-8641. If no answer, 568-0351.

Beginning in 1963, Prince & Prince began conveying lots in Island Acres with deeds that purported to grant rights over Drive D and access to Prince Island. Prince & Prince conveyed Freebern Lot 30B to Christine A. Sullivan by a deed dated December 3, 1963 and recorded at Book 2998, Page 209 in the Hampden registry. This deed makes no reference to the 1964 Prince & Prince Plan. It contains the following language:

The above described premises are conveyed together will all rights of way over Ridge Avenue and over Drive D as shown on [the 1949 P&M Plan] and over the extension of Drive D as now laid out to the above described premises. . . . TOGETHER WITH the right, in common with the grantor, its assigns, and others lawfully entitled thereto, to use the Island known as Prince Island located in Otis Reservoir opposite the terminus of Drive D . . . . The grantor, however, reserves the right to convey said Island, within twenty (20) years of the date hereof, to an Association of Residents of the subdivision of which the above described premises are a portion and upon such conveyance, the rights to said Island hereby conveyed shall be subject to the rules and regulations laid down by said association.

Defendant R. Scott Freebern took title to Freebern Lot 30B by a deed from Robert W. Sullivan dated January 25, 2007 and recorded in the Hampden registry at Book 16490, Page 362 on February 5, 2007. [Note 12] This deed also contains the following language: together will all rights of way over Ridge Avenue and over Drive D as shown on [the 1949 P&M Plan] and over the extension of Drive D as now laid out on the above-described premises. . . . TOGETHER with the right, in common with others lawfully entitled thereto, to use the Island known as Prince Island located in Otis Reservoir opposite the confines of said Drive D.

Prince & Prince conveyed Zabik/Caulfield Lot 31B to Arthur J. Doiron and Alice Doiron by a deed dated December 3, 1963 and recorded in the Hampden registry on December 11, 1964 at Book 2998, Page 206. This deed makes no reference to the 1964 Prince & Prince Plan. It deed contains the following language:

As discussed, defendant Francis R. Zabik currently owns a life estate, with defendant Francine A. Caulfield owning the remainder interest, in Zabik/Caulfield Lot 31B by a deed from Francis R. Zabik dated April 28, 2009. [Note 13] This deed also contains the following language: together all rights of way, in common with others, over Ridge Avenue and over Drive D as shown on [the 1949 P&M Plan] . . . . TOGETHER with the right, in common with Prince & Prince Realty, Inc. its assigns, and others lawfully entitled thereto, to use the Island known as Prince Island located in Otis Reservoir opposite the terminus of Drive D.

Ralph Prince, the principal of P&M and Prince & Prince, passed away in 1969. His son (also a principal) took over the business.

Prince & Prince conveyed Tonlino Lot 11B to Michael J. Carron by a deed dated and recorded in the Hampden registry on October 24, 1972 at Book 3742, Page 448. This deed refers to the 1964 Prince & Prince Plan, and contains the following language: TOGETHER with the right to use the streets as shown on said plan and D Street, so-called, in Otis, Massachusetts and TOGETHER with the right to use land known as Prince Island located at the Westerly end of said D Street, sometimes known as Drive Din common with the grantor, its assigns and others lawfully entitled thereto. Defendants John B. Tonlino, III and Kimberly A. Tonlino currently own Tonlino Lot 11B by a treasurers deed from the Town of Blandford dated September 27, 2006 as discussed above. The property description in this deed references the description in the 1972 Deed. It is undisputed that the Town of Blandford, as predecessor in title to John and Kimberly Tonlino, acquired title to Tonlino Lot 11B from Michael J. Carron by tax lien judgment on July 15, 2004.

Prince & Prince conveyed Weinstein Lot 17B to John L. Stoto by a deed dated September 14, 1974 and recorded in the Hampden registry on September 23, 1974 at Book 4043, Page 290. This deed refers to the 1964 Prince & Prince Plan and contains the following language:

The above described premises are further conveyed together will all rights of way over Ridge Avenue and over Drive D as shown on [the 1949 P&M Plan] and over the extension of Drive D as now laid out to the above described premises, in common with others.

TOGETHER WITH the right, in common with Prince & Prince Realty, Inc. its assigns, and others lawfully entitled thereto, to use the Island known as Prince Island located in Otis Reservoir opposite the terminus of Drive D . . . . Subject to the right of Prince & Prince Realty, Inc. to convey said Island, within twenty (20) years from December 3, 1963 to an Association of Residents of the subdivision of which the above described premises are a part and upon such conveyance, the rights to said Island hereby conveyed shall be subject to the rules and regulations laid down by said association.

Defendants Joshua A. Weinstein and Melissa B. Weinstein currently own Weinstein Lot 17B by a deed from John D. Rutherford and Victoria D. Rutherford dated July 11, 2003 as discussed above. [Note 14] This deed repeats the grants set forth in the 1974 deed described above.

Prince & Prince conveyed Valenzisi Lot 14B to Frank Valenzisi and Jean Valenzisi by a deed dated January 25, 1975 and recorded in the Hampden registry on February 13, 1975 at Book 4100, Page 156. This deed refers to the 1964 Prince & Prince Plan and contains the following language:

Frank Valenzisi and Jean Valenzisi then conveyed Valenzisi Lot 14B to the defendant Valenzisi Trust by a deed dated September 26, 2006 as described above. This deed repeats the grants set forth in the 1975 deed described above.

Prince & Prince conveyed Peters/Legowski Lot 1B to Robert C. Lariviere by a deed dated October 28, 1975 and recorded in the Hampden registry on February 10, 1976 at Book 4231, Page 246. This deed refers to the 1964 Prince & Prince Plan and contains the following language:

TOGETHER WITH the right, in common with Prince & Prince Realty, Inc. its assigns and others lawfully entitled thereto, to use the Island known as Prince Island located in Otis Reservoir opposite the terminus of Drive D . . . . Subject to the right of Prince & Prince Realty, Inc. to convey said Island, within twenty (20) years from December 3, 1963 to an Association of Residents of the subdivision of which the above described premises are a part and upon such conveyance, the rights to said Island hereby conveyed shall be subject to the rules and regulations laid down by said association.

Robert C. Lariviere conveyed Peters/Legowski Lot 1B to defendants Nickolas B. Peters and Anna M. Peters, husband and wife, and Renata A. Legowski as tenants in common with defaulted defendants Stephen Doyle and Bridget K. Doyle, husband and wife, by a deed dated February 8, 2010 as described above. This deed repeats the grants set forth in the 1975 deed described above.

As discussed, Island Acres was organized on July 22, 1976. By a deed dated July 22, 1977 and recorded in the Hampden registry at Book 4460, Page 136 on July 29, 1977, Prince & Prince purported to convey Prince Island, all its right, title and interest in and to the roadways in Blandford as shown on the 1964 Prince & Prince Plan, and all its right, title and interest in Drive D as shown on the 1949 P&M Plan and the 1965 Prince & Prince Plan to defendant Island Acres (the 1977 Island Acres Deed). The 1977 Island Acres deed provides:

The above described roadways and island are conveyed subject to the rights of all persons presently entitled to use of the same and to any and all restrictions and conditions of record.

The grantor reserves to itself the right to use all of said roadways in common with the grantee and others lawfully entitled thereto for all purposes for which highways are commonly used.

The grantor reserves to itself the right to convey rights of way over the streets as shown on [the 1964 Prince & Prince Plan] to purchasers of lots on said plan.

Prince & Prince conveyed Lots 60, 63, 66, 67, and Blier Lot 65 as shown on the 1965 Prince & Prince Plan to Berkshire County Properties, Inc. by a deed dated March 21, 1978 and recorded in the Berkshire registry on April 13, 1978 at Book 1002, Page 445.

Prince & Prince conveyed Lots 2B, 6B, 7B, 12B, Blier Lot 13B, Lots 15B and 16B, Blier Lots 19B and Lot 23B, and Lots 24B, 25B, 26B, 27B, and 28B as shown on the 1964 Prince & Prince Plan to Frank E. Pollard, Trustee by a deed dated April 4, 1978 and recorded in the Hampden registry on June 16, 1978 at Book 4608, Page 221. The deed contains the following language:

Subject to the encumbrances of record, as the same may now be in force and applicable. A deed of identical language was recorded as a rerecording in the Hampden registry on March 23, 1981 at Book 5083, Page 97. Neither deed identifies the trust of which Frank E. Pollard is trustee.

Prince & Prince was dissolved on June 18, 1980.

Bradford A. Prince, Trustee, conveyed Grant Lot 7B to Walter L. Grant and Shirley A. Grant by a deed dated February 25, 1985 and recorded in the Hampden registry on April 4, 1985 at Book 5788, Page 344. This deed recites that Grant Lot 7B is a portion of the premises conveyed to the Grantor by deed of Frank E. Pollard, Trustee, dated January 31, 1984 and recorded in [the Hampden registry] in Book 5582, Page 236, a deed that does not appear in the record. This deed contains the following language: TOGETHER with the rights to use D Street, Ridge Avenue, Drive D, and Prince Island, . . . subject to the rules and regulations of [Island Acres], in common with those lawfully entitled thereto. Shirley A. Grant, Kenneth N. Grant, Gray L. Grant, and Ronald L. Grant Sr. conveyed Grant Lot 7B to the defendants Kenneth N. Grant and Ronald L. Grant, Sr. by a deed dated April 26, 2003, as described above. [Note 15] This deed repeats the grant of rights set forth in the 1985 deed described above.

Island Acres was involuntarily dissolved on November 17, 1986. As of the date of its dissolution, it had never conveyed any of its interests in Prince Island or its rights in any ways.

Berkshire County Properties, Inc. conveyed Blier Lot 65 to defendant Donald Blier and defaulted defendant Arthur Blier by a deed dated April 16, 1987, as described above. This deed contains the following language: TOGETHER with the right to use the streets as shown on [the 1965 Prince & Prince Plan], in common with others lawfully entitled thereto, for all purposes for which highways are commonly used.

Prince & Prince conveyed Rhodes Lot 3B, Lot 12B, Blier Lots 13B, 19B, and 23B, and Lot 28B, as shown on the 1964 Prince & Prince Plan, to Donald Blier and Arthur Blier by a deed dated April 16, 1987 and recorded in the Hampden registry on June 5, 1987 at Book 6512, Page 452. This deed contains the following language: TOGETHER with all rights of the Grantors to the use of the streets and roadways as shown on [the 1964 Prince & Prince Plan] and to the use of D Street, Drive D, Ridge Avenue and Prince Island, so-called, . . . in common with others lawfully entitled thereto, subject to the rules and regulations of Island Acres. This deed also contains the following language: This deed is given to confirm a deed from Bradford A. Prince, as Trustee to the Grantee herein which deed is recorded herewith. [Note 16] Other than this reference, there is no indication in the record of how Lots 12B, Blier Lots 13B, 19B, and 23B, and Lot 28B, conveyed by Prince & Prince to Frank E. Pollard, Trustee, in 1978, as described above, came to be held again by Prince & Prince. [Note 17]

Donald Blier and Arthur Blier conveyed Rhodes Lot 3B to defendant John J. Rhodes by a deed dated May 18, 1987, as described above. This deed does not repeat any grants in any ways or in Prince Island.

As discussed, on June 9, 2005 Arthur Blier conveyed his interest in Blier Lots 13B, 19B, and 23B to defendant Blier by the Blier Deed. [Note 18] This deed contains the following language: Together with all rights of Prince & Prince Realty, Inc. and Bradford A. Prince to the use of the streets and roadways as shown on [the 1964 Prince & Prince Plan] and to the use of D Street, Drive D, Ridge Avenue and Prince Island, so-called,in common with all others lawfully entitled thereto, subject to the rules and regulations of Island Acres.

As discussed, Beverly A. Harris conveyed Harris Lot 27B to defendant Timothy Harris and defaulted defendants Susan Dakin and Jean Dakin by a deed dated February 25, 2003. [Note 19] This deed provides that the property is conveyed subject to easements and restrictions of record insofar as the same are in force and applicable. The Schedule A to the deed, describing Harris Lot 27B, contains the following language:

The above described premises are further conveyed together with rights of way over Ridge Avenue and over Drive D as shown on [the 1949 P&M Plan], and over the extension of Drive D as now laid out to the above described premises, in common with others.

TOGETHER with the rights, in common with Prince & Prince Realty, Inc. its assigns and others lawfully entitled thereto, to use the Island known as Prince Island . . . opposite the terminus of Drive D, for boating and bathing purposes. Subject to the rules and regulations laid down by [Island Acres].

Defendant Prince Island Association, Inc. (PIA) was organized January 31, 2008. Prince & Prince was revived on June 18, 2008. By a deed dated September 22, 2008 and recorded in the Berkshire registry at Book 4160, Page 131 on October 15, 2008 (the 2008 PIA Deed), Prince & Prince, by the heirs of Bradford A. Prince, its sole shareholder, conveyed to PIA [a]ll our right title and interest in and to what is designated as Prince Island and located in the Town of Otis, Berkshire County, MA. Our interest being that as the sole heirs of Bradford A. Prince who was the sole stockholder of Prince & Prince Realty, Inc. which was the record owner of said Island by virtue of the 1959 deed from P&M to Prince & Prince described above.

On October 28, 2009, R. Scott Freebern, as president of PIA, filed an Application for Revival of Island Acres. The application states that the applicant is seeking a limited revival for one year for the purpose of obtaining title to Prince Island which [Island Acres] is still the record owner. Island Acres was revived on November 3, 2009. By a deed dated November 2, 2010 and recorded in the Berkshire registry at Book 18531, Page 275 on November 3, 2010 (the 2010 PIA Deed), Lori A. Robbins, Esq., in her capacity as receiver of Island Acres, granted to PIA:

All of the right, title and interest of the grantor in and to the roadways in Blandford, Hampden County, Massachusetts, as shown on [the 1964 Prince & Prince Plan] and all the right, title and interest of the grantor in D Street in Otis, Berkshire County, Massachusetts, as show [sic] on [the 1965 Prince & Prince Plan] and all the right, title and interest of the grantor in Drive D as shown on [the 1949 P&M Plan or the 1953 Plan]. [Note 20]

Also conveying all the right, title and interest of the grantor in and to the island as shown on the last mentioned plan sometimes known as Prince Island and lying within Otis Reservoir so called.

The above described roadways and island are conveyed subject to the rights of all persons entitled to use the same and to any and all restrictions and conditions of record.

Being all and the same premises conveyed to the grantor, [Island Acres], herein by [the 1977 Island Acres Deed].

Disputed facts, as they are relevant, are discussed below.

Discussion

The plaintiffs have moved for partial summary judgment. They seek summary judgment that none of the defendants has either an easement by deed (or record easement), an easement by estoppel, an easement by necessity, an implied easement, or an easement by common scheme to use Drive D between Ridge Avenue and the Otis Reservoir. They also seek summary judgment against defendants Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John J. Rhodes, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Trust, Timothy Harris, R. Scott Freebern, Island Acres, and PIA declaring that none of those defendants has a prescriptive easement to use Drive D. Finally, the parties dispute whether there is a prescriptive easement for the public to use Drive D. As discussed below, none of the defendants has a record easement or an easement by estoppel to use Drive D. There are disputed issues of material fact as to whether Island Acres or PIA has an easement by necessity to use Drive D for access to Prince Island; none of the other defendants has an easement by necessity to use Drive D. There are disputed issues of material fact as to whether any of the defendants has an implied easement or easement by common scheme to use Drive D. Finally, there are disputed issues of material fact as to whether defendants Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John B. Tonlino, III, Kimberly A. Tonlino, R. Scott Freebern, Island Acres, and PIA have prescriptive easements over Drive D. There is insufficient evidence to establish that defendants John J. Rhodes, the Valenzisi Trust, and Timothy Harris have prescriptive easements or that there is a public prescriptive easement over Drive D. Each form of easement is discussed in turn.

1. Easement by deed.

As discussed, all of the property that later became the plaintiffs and defendants lots, including Prince Island, was owned by P&M in 1948. P&M created the 1949 P&M Plan, which shows the plaintiffs lots, but does not depict any of the defendants lots. Between 1953 and 1957, P&M conveyed all the plaintiffs lots, which bound Drive D on both sides along its entire length from Ridge Avenue to the Otis Reservoir, to the plaintiffs or their predecessors. In 1958, P&M conveyed its remaining land, including Prince Island, to Ralph Prince and George Mills, which they then in 1959 conveyed to Prince & Prince. Beginning in 1963, Prince & Prince began conveying the defendants various lots to the defendants or their predecessors in title. Each of the deeds for those conveyances purports to grant an easement to use Drive D.

The issue is whether, as the defendants argue, the post-1963 grants of easements in the deeds to the defendants and their predecessors give each of the defendants a record easement over Drive D. This question turns on whether Prince & Prince had title in Drive D sufficient to grant an easement for the benefit of the defendants lots. If Prince & Prince had no such title, then the defendants do not have a record easement, no matter what their deeds say. Where . . . the grantor has nothing to convey, . . . [t]he purported conveyance is a nullity, notwithstanding the parties intent. Bongaards v. Millen, 440 Mass. 10 , 15 (2003).

Whether Prince & Prince had an interest in Drive D depends on what title P&M retained in Drive D after it conveyed the plaintiffs lots. The answer to that question turns on G.L. c. 183, § 58, the Derelict Fee Statute. When a conveyance does not expressly state who owns a fee interest in a way, the Derelict Fee Statute "sets out an authoritative rule of construction for instruments passing title to real estate abutting a way." Emery v. Crowley, 371 Mass. 489 , 492 (1976); see Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 802 (2003); Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242 (1992). The statute mandates every deed of real estate abutting a way include the fee interest of the grantor in the way to the centerline if the grantor retains property on the other side of the way or for the full width if he does not unless the instrument evidences a different intent by an express exception or reservation and not alone by bounding a side line." Id. at 243, quoting G.L. c. 183, § 58. The Legislature enacted the statute to prevent situations where a grantor failed to convey his interest in a way and therefore retained ownership of the way. Rowley, 438 Mass. at 803. While the statute codifies the basic common law presumption that a conveyance that described the boundary of the land as being on or by a way, with no restrictions or exceptions, conveyed title to the center of the way, Tattan, 32 Mass. App. Ct. at 243, it is stricter then the common law. McGovern v. McGovern, 77 Mass. App. Ct. 688 , 694 (2010). Under the statute, the presumption of title is conclusive unless the conveyance contains an express exception or reservation. G.L. c. 183, § 58; McGovern, 77 Mass. App. Ct. at 694; Tattan, 32 Mass. App. Ct. at 243-44. The express exception or reservation must be in the deed itself and the parties may not rely on other evidence to demonstrate an intent of the parties to except or reserve title in the way. Rowley, 438 Mass. at 804; Tattan, 32 Mass. App. Ct. at 244. The Derelict Fee Statute is retroactive, and therefore applies to the original conveyances of the plaintiffs lots. St. 1971, c. 684, § 2.

All of the deeds conveying the plaintiffs lots describe those lots as bounded along Drive D or along the Northerly line of Drive D. These descriptions trigger the application of the Derelict Fee Statute. Each deed therefore conveyed title to that portion of Drive D abutting the conveyed lot, to the centerline. By 1957, when P&M conveyed the last of the lots abutting Drive D, it no longer held any fee interest in Drive D; that interest was held by the owners of the plaintiffs lots.

The Derelict Fee Statute does not per se bar a landowner from conveying or creating easements in a way. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005). In order to create an easement in a way, however, the grantor must have retained an interest in the way that allows it to grant an easement notwithstanding the abutters fee ownership of the way. For example, at the time P&M granted the utility easement, it still owned Ahrens Lot 22, Beckman Lot 23A, Brazee Lot 23B, Mastrianni Lot 36, and Kozlowski Lot 37, each of which abut Drive D across from the other. Therefore, P&M held a fee interest in Drive D which gave it the right to grant an easement burdening Drive D. Once P&M had conveyed all the lots abutting Drive D, it no longer held a fee interest in Drive D. At that time, P&M could only convey an easement in Drive D if it had reserved some right to do so when it conveyed the plaintiffs lots. None of the deeds conveying the plaintiffs lots, however, contain any reservation of interest in Drive D or make any provision that rights to use Drive D are conveyed in common with others entitled to use Drive D or ways in Otis. See, e.g., Denardo v. Bosworth, 20 LCR 344 , 352-353 (2012) (conveyance of lots with grant to use ways in common with all others legally entitled thereto reserves right to grant use of ways). In short, by 1957, P&M retained no record interest in Drive D that entitled it or its successor to grant record easements burdening Drive D. The grants of easements to use Drive D for the benefit of the defendants lots is ineffective.

2. Easement by estoppel.

Massachusetts recognizes two forms of easement by estoppel. Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-644 (2004); Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). The first form of easement by estoppel arises when land is conveyed according to a recorded plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under this category, when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor is estopped to deny the existence of the street for the entire distance as shown in the plan. Id. In the second category, an easement by estoppel is created when land bounded by a street or land bounded on or by the side line of a street is conveyed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949). In this instance, the grantor is estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way)...embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. Id. at 89; see Estes, 61 Mass. App. Ct. at 643.

In both categories, the rights of grantees or their successors in title against their grantors and their successors in title are at issue. Patel, 27 Mass. App. Ct. at 482. Massachusetts has not expanded the doctrine of easement by estoppel to estop a grantee from denying the existence of an easement. Id.; Waldron v. Tofino Assocs., Inc., 20 LCR 480 , 485 (2012). Accordingly, a grantor cannot claim an easement by estoppel. Id.

The defendants seek to establish easements by estoppel to use Drive D. However, the defendants are successors in title to P&M, the grantor of the lots abutting Drive D. As successors to the grantor of the lots abutting Drive D, they cannot claim an easement by estoppel to use Drive D.

3. Easement by necessity.

An easement by necessity refers to an easement presumed by law to exist when a landowner conveys part of his land in a way that deprives him of access to a portion of land he retains. Davis v. Sikes, 254 Mass. 540 , 545-546 (1926); Adams, 64 Mass. App. Ct. at 390 (noting a conveyance of land that renders the grantors remaining land landlocked ordinarily gives rise to an easement by necessity, based on the presumed intention of the grantor to retain access to his remaining land.). The party claiming the easement by necessity must establish that (1) the dominant and servient estates were owned by same person, (2) the unity of ownership was severed by a conveyance, and (3) the conveyance created a necessity for an easement. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005); see Nylander v. Potter, 423 Mass. 158 , 162 (1996) (finding no easement by necessity because there was no previous common ownership); Orpin v. Morrison, 230 Mass. 529 , 533 (1918) (finding an easement by necessity when the land was otherwise inaccessible). Necessity means that the claimed easement is reasonably necessary. Richards v. Attleborough Branch R.R. Co., 153 Mass. 120 , 122 (1891); Adams, 64 Mass. App. Ct. at 390. In other words, the necessity giving rise to the easement need not be absolute physical necessity for access; rather the landowner must show the use of the easement is reasonably necessary for the enjoyment of the land. Davis, 254 Mass. at 546; Waldron, 20 LCR at 483. Necessity will not be found if the owner has an alternative way to access the land. Davis, 254 Mass. at 546; Waldron, 20 LCR at 483 (finding no easement by necessity when a plan showed alternative access to the land existed). This includes the ability to construct an alternate way to the land at a reasonable expense. Davis, 524 Mass. at 546. If a necessity is found, the owner of the servient estate has the right to locate the easement, and once the location of the easement is fixed the location can only be changed by agreement. Id.

None of the individual defendants have a claim for easement by necessity, as they all have access to their lots without using Drive D. There are, however, sufficient disputed facts in the record that, if credited, would establish that either Island Acres or PIA, as owner of Prince Island, holds an easement by necessity across Drive D to access the island. It is undisputed that Prince Island, Drive D, and the plaintiffs lots were all owned by P&M and that this unity of ownership was severed by the conveyance of the plaintiffs lots. The facts are disputed about whether an easement over Drive D is reasonably necessary for access to and enjoyment of Prince Island. Prince Island lies just offshore at the end of Drive D. There is evidence that at times Prince Island is connected by land to the mainland at the end of Drive D, that a footbridge was constructed from Drive D to Prince Island as early as 1960, that many of the parties as well as members of the general public have used Drive D to access Prince Island, and that without access to Drive D, people must either boat, which requires them to travel several miles to a boat ramp, or swim to the island. That evidence supports a finding that Drive D is necessary for access to Prince Island. On the other hand, there is also evidence, including the 1953 Walker Plan, that access to Prince Island was made through Drive E. This evidence supports a finding that there is a reasonable alternate access to Prince Island. This dispute of fact cannot be resolved on a motion for summary judgment. [Note 21]

4. Implied Easement.

In contrast to an easement by necessity, an easement by implication is a term more commonly applied to an implied grant derived from an established pattern of prior use rather than from the necessity to access a newly landlocked parcel. Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 78 (2004). An implied easement arises when no easement appears in the record of a conveyance, but there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 102 , 104 (1933). Thus, an implied easement must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. Reagan v. Brissey, 446 Mass. 452 , 458 (2006), quoting Labounty v. Vickers, 352 Mass. 337 , 344 (1967); Zotos v. Armstrong, 63 Mass. App. Ct. 654 , 657 (2005). A single circumstance may be so compelling as to require the finding of an intent to create an easement. Mt. Holyoke, 284 Mass. at 104. The party claiming the easement bears the burden and must prove the grantor intended create an easement at the time of conveyance. Id. at 105; Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Because a deed is construed against the grantor, an implied easement is more readily found when claimed by a grantee. Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951); Boudreau, 29 Mass. App. Ct. at 629 (The burden is heavier for a grantor asserting a right to an easement by implied reservation for his benefit than for a grantee asserting such an easement by implied grant.).

Prior use which is open and obvious and consistent with the claimed easement is evidence of an intent to create an easement. Mount Holyoke, 284 Mass. at 108; Boudreau, 29 Mass. App. Ct. at 630; Puner v. Sierputoski, 21 LCR 367 , 371 (2013); Black v. Klaetke, 20 LCR 120 , 124 (2012). This type of prior use establishes an implied easement when there was (1) common ownership of the dominant and servient estates, (2) apparent use of one part of the land for the benefit of another part, (3) severance of the dominant and servient estates, and (4) reasonable necessity to continue the prior use. Mt. Holyoke, 284 Mass. at 108; Zotos, 63 Mass. App. Ct. at 656-657.

Reasonable necessity for the implied easement is also evidence that the grantor intended to create an easement. Boudreau, 29 Mass. App. Ct. at 630. The easement need not be of absolute or physical necessity, just of reasonable necessity. Mount Holyoke, 284 Mass. at 105; see Cummings v. Franco, 335 Mass. 639 , 642-44 (1957) (finding easements for lights, the maintenance of electric fixtures and the supply of water and electricity were reasonably necessary); Overlock v. Leary, 19 LCR 262 , 266 (2011) (noting safety concerns made the use of an avenue reasonably necessary).

If the intent of the grantor is not clear, the subsequent use of the land may be evidence of an intent to create an easement. Bacon v. Onset Bay Grove Assn, 241 Mass. 417 , 423 (1922); Boudreau, 29 Mass. App. Ct. at 632. Subsequent use of the land establishes intent when such use can explain or characterize the deed and the acts relied upon are not so remote in time or so disconnected with the deed. Bacon, 241 Mass. at 423; Boudreau, 29 Mass. App. Ct. at 632-633 (subsequent actions should not be unilateral and removed in time). Only conduct that is logically connected to the original conveyance should be considered to reflect the intent of the grantor. Bacon, 241 Mass. at 423.

Applying these principles, there are sufficient disputed facts in the record to support a finding that the defendants hold an implied easement to use Drive D. First, the 1949 P&M Plan could be interpreted, drawing inferences in the defendants favor as nonmoving parties, to indicate an intent that the ways shown on the plan connect to and be available to the other land of P&M in Blandford that eventually would be shown on the 1964 Prince & Prince Plan and the 1965 Prince & Prince Plan. Second, the grants of easements to pass over Drive D benefiting the defendants lots, while not effective as a matter of record title, can be taken as evidence of an intent that Drive D be available to all the owners of the property originally held by P&M. Third, in their affidavits, James Sullivan, vice president of Prince & Prince, and Frank E. Pollard, former counsel to Prince & Prince, described their conversations with Ralph and Brad Prince in which both expressed their intent that Drive D be available to all lots for access to Prince Island.

Finally, there are also disputed facts concerning subsequent use of Drive D sufficient to suggest an intent that an easement to use Drive D be appurtenant to defendants lots. For example, many of the defendants and plaintiffs put docks on Prince Island and participated in enhancing the footbridge to facilitate access to Prince Island, using Drive D in the process. Brad Prince constructed the first footbridge to Prince Island from Drive D as early as 1960 as mentioned infra. Plaintiffs Gary Brazee and William Ahrens, along with defendant Herman Blier and others helped to replace the footbridge and paid to purchase materials to build the footbridge for access to Prince Island for everyone. Gray Brazee was reimbursed for these costs to repair the footbridge by defendants Herman Blier and Fran Zabik, along with plaintiffs Paul Mastrianni, Marshall Beckman, and William Ahrens. William Ahrens helped to construct a footbridge in the 1970s. Gary Brazee reimbursed defendant Herman Blier for maintaining Drive D. In short, the disputed facts in the record would support an inference that P&M and Prince & Prince intended to reserve an easement over Drive D for the benefit of the subsequent owners of lots developed as shown on the 1964 Prince & Prince Plan and the 1965 Prince & Prince Plan. This dispute of fact cannot be resolved on a motion for summary judgment.

5. Easement by Common Scheme.

An easement by common scheme is simply a form of implied easement. It begins with the principle that the mere recording of a plan which refers to a street or way does not, without more, convey any rights; there must be some intent to create an easement over the street or way. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 67 (2009); Boudreau, 29 Mass. App. Ct. at 628; Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 480-481 (1989); Waldron, 20 LCR at 483-484. When a conveyance references a plan, however, the plan can help determine the rights the grantor intended to convey. Reagan, 446 Mass. at 458; Bacon, 241 Mass. at 422. For example, when a right to use a street or way which is depicted on a plan is expressly included in a conveyance, that conveyance includes the right to use the street or way and reserves an easement to use the street or way for the benefit of all the lots shown on the plan that are held or conveyed by the common grantor. Denardo, 20 LCR at 352; Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 50-51 (1980); Sova v. Randazza, 13 LCR 425 , 427 (2005).

As discussed above, although the original deeds from P&M and Prince & Prince conveying the plaintiffs and defendants lots referred in various parts to the 1949 P&M Plan, the 1964 Prince & Prince Plan, and the 1965 Prince & Prince Plan, the original grantors did not have record title in Drive D sufficient for them to convey the rights in Drive D set forth in the deeds to defendants lots. Those conveyances and those plans may, however, be evidence of an intent to create common scheme whereby all the owners of the lots shown on the plans have the benefit of the use of the ways shown on the plans and of Prince Island. Whether a set of conveyances combined with a plan or plans create a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable. Reagan, 446 Mass. at 458; Houghton v. Johnson, 71 Mass. App. Ct. 825 , 833-834 (2008); Denardo, 20 LCR at 354. While the plan may be used to draw inferences about the intent of the parties, additional evidence needs to be presented to show the grantor's intent. See Reagan, 446 Mass. at 458; Boudreau, 29 Mass. App. Ct. at 628-630. For example, in Reagan, the court looked to the presence of parks in the original subdivision plan, the reference to the plan in plaintiffs deeds, and the language of advertisements at the time of the original marketing of the lots; whereas in Houghton, the court found that the absence of these elements meant there was no discernible pattern of an intent to create a common scheme. Compare Reagan, 446 Mass. at 459-460, and Houghton, 71 Mass. App. Ct. at 834-835. The parties claiming the easement bear the burden of showing the grantor intended to create an easement. Reagan, 446 Mass. at 458.

Much of the disputed evidence discussed above with respect to the claim of an implied easement is also relevant to whether the defendants can prove the existence of an easement by common scheme. The 1959 and 1963 newspaper advertisements are also evidence of a common scheme. The evidence in the record of a common scheme is not extensive, and may be countered by the evidence that the 1964 Prince & Prince Plan, 1965 Prince & Prince Plan, and the advertisements were created after the lots shown on the 1949 P&M Plan. In other words, the evidence in the record is at best a toehold to establish an easement by common scheme. Marr Equip. Corp. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231 , 235 (1982). A toehold, however, is enough to survive a motion for summary judgment. Id.

6. Easement by Prescription.

The plaintiffs have moved for partial summary judgment dismissing the claims of defendants Nickolas B. Peters, Anna M. Legowski, John J. Rhodes, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Trust, Timothy Harris, R. Scott Freebern, Island Acres, and PIA that there are prescriptive easements to use Drive D appurtenant to, respectively, Peters/Legowski Lot 1B, Rhodes Lot 3B, Tonlino Lot 11B, Valenzisi Lot 14B, Harris Lot 27B, Freebern Lot 30B, and Prince Island (the prescriptive easement motion). The defendants have also alleged, in their opposition to this portion of the motion for partial summary judgment, that there is a prescriptive easement to use Drive D for the benefit of the public, and in their reply, the plaintiffs have extended the prescriptive easement motion to this claim. For the reasons set forth below, the prescriptive easement motion is allowed with respect to Rhodes Lot 3B, Valenzisi Lot 14B, Harris Lot 27B, and the public prescriptive easement. The prescriptive easement motion is denied with respect to Peters/Legowski Lot 1B, Tonlino Lot 11B, Freebern Lot 30B, and Prince Island.

a. Legal Elements.

Whether the elements of a claim for a prescriptive easement have been satisfied is a factual question, and the party who claims a prescriptive easement bears the burden on every element. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than twenty years. G.L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Houghton, 71 Mass. App. Ct. at 835; Hayes v. Dorr, 20 LCR 181 , 195 (2012). These elements are discussed in turn.

The purpose of the requirement of open and notorious use is to ensure that the true owner has notice of a claim of right being made over his property and to give the true owner a fair chance to protect her property interests. Foot v. Bauman, 333 Mass. 214 , 218 (1955); see Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). For a use to be open there cannot be an attempt to conceal the use. White v. Hartigan, 464 Mass. 400 , 416 (2013); Boothroyd, 68 Mass. App. Ct. at 44. For a use to be notorious, the use must be sufficiently pronounced so a landowner who exercises a reasonable degree of supervision over the property will either directly or indirectly be made aware of the use. Id.; see White, 464 Mass. at 417. It is not necessary that the use be actually known to the owner for the use to be notorious. Boothroyd, 68 Mass. App. Ct. at 44. The use must, however, be of such a character that the true owner is put on constructive notice of the use. Lawrence, 439 Mass. at 421 (noting there is no requirement that the true owner be given explicit notice of adverse use); Boothroyd, 68 Mass. App. Ct. at 44. When the true owner has actual knowledge of a use being made under a claim of right, the open and notorious element will be satisfied. White, 464 Mass. at 417.

To be adverse the use be made under a claim of right and the true owner must not have given permission for or consented to the use. White, 464 Mass. at 418; Houghton, 71 Mass. App. Ct. at 835; Johnson v. Falmouth Planning Bd., 19 LCR 104 , 110 (2001). Permission is not the same as acquiescence. Houghton, 71 Mass. App. Ct. at 836. Permission gives an individual the right to do some act on the land. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). Permission is revocable and will defeat a claim for a prescriptive easement. Houghton, 71 Mass. App. Ct. at 835; Hayes, 20 LCR at 197. Whether permission has been granted or can be implied will depend on the particular circumstances of the case, including, among other relevant factors, the actions of the owner, the character of the land, the use of the land, and the nature of the relationship between the parties. Totman v. Malloy, 431 Mass. 143 , 145-146 (2000); Kendall v. Selvaggio, 413 Mass. 619 , 624-626 (1992); Houghton, 71 Mass. App. Ct. at 842-843. An unexplained use of an easement for twenty years creates a presumption of adversity. Truc v. Field, 269 Mass. 524 , 528-29 (1930); Houghton, 71 Mass. App. Ct. at 836. The true owner can overcome the presumption by offering evidence that explains the use or shows control over the use. Id. For example, the true owner can defeat the presumption by showing there was express or implied permission or the use was the result of some license, indulgence, or special contract. White v. Chapin, 94 Mass. 516 , 519-20 (1866).

The adverse, open and notorious use of the land must have been continuous for no less than twenty years. G.L. c. 187 § 2; Ryan, 348 Mass. at 263. Circumstantial evidence may be used to establish a continuous use. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870); Bagley v. Senn, 19 LCR 6 , 12 (2011). Continuous use does not mean constant use; a claimant need not show there was daily, constant or un-interrupted use over the entire twenty-year period. Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961); Bodfish, 105 Mass. at 319; Bagley, 19 LCR at 12. intermittent or occasional use, however, is not continuous, Boothroyd, 68 Mass. App. Ct. at 45, and sporadic use will not be found to be continuous unless the acts are sufficiently pervasive. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996); Lally v. Murphy, 21 LCR 315 , 318 (2013). Regular seasonal or periodic use may be considered continuous if there is a pattern of regularity or some degree of consistency in the use. Kershaw, 342 Mass. at 320-321 (finding continuous use in an adverse possession case where a circus performer had marked a boundary, cleared brush, and periodically used the property for exercises and stunts); Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) (seasonable absence does not prevent a finding of continuous use); Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (noting pattern of regular use on weekends).

A claimant who has not made continuous use of the property may satisfy the statutory period by tacking on "several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses." Ryan, 348 Mass. at 264; Denardo v. Stanton, 16 LCR 141 , 144 (2008), affd, 74 Mass. App. Ct. 358 (2009). Privity exists when use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor of the earlier one. Ryan, 348 Mass. at 264.

b. Peters/Legowski Lot 1B.

Peters and Legowski claim that they have a prescriptive easement over Drive D appurtenant to Peters/Legowski Lot 1B based on their use and the use of their predecessor, Robert Lariviere. It is undisputed that Robert Lariviere owned Peters/Legowski Lot 1B from October 28, 1975 to February 8, 2010. His deed included a statement that indicated the conveyance included the right to access and utilize Drive D. On February 8, 2010, Stephen and Bridget Doyle, as husband and wife, Nickolas and Ann Peters, as husband and wife, and Renata A. Legowski, all as tenants in common purchased Peters/Legowski Lot 1B. That deed also included a statement indicating the conveyance included the right to access and utilize Drive D.

The record discloses the following disputed facts. When Robert Lariviere owned Lot 1B, he accessed Drive D by foot and vehicle approximately two times a year. Mr. Lariviere used Drive D to access the water in order to sailboard. In addition, he never asked for nor was granted permission to access Drive D and no one ever attempted to stop him from accessing Drive D. Mr. Lariviere believes the right to access Drive D was included in the deed for Peters/Legowski Lot 1B. Renata Legowski and her guests have frequently used Prince Island for water related activities during the three summers she has owned the property. To reach the island, Legowski and her guests crossed Drive D, by foot and motorized vehicle, to access the footbridge that is located at the end of Drive D and connects Prince Island to the mainland. Beginning in the 1990s, and continuing to date, Nickolas Peters regularly used Drive D to access Otis Reservoir and Prince Island. Ann Peters began using Drive D to access Otis Reservoir and Prince Island around 2003. This evidence, drawing all inferences in favor defendants Peters and Legowski, puts sufficient facts in issue to defeat the prescriptive easement motion.

c. Rhodes Lot 3B.

John Rhodes testified that since he acquired Rhodes Lot 3B he has made no use of the lot and to date has used Drive D approximately three or four times. There is no question that Mr. Rhodes use of Drive D over the twenty-five years since he brought the property has not been open, notorious, adverse and continuous. He cannot establish a prescriptive easement for the benefit of Rhodes Lot 3B. The prescriptive easement motion is allowed with respect to defendant Rhodes.

d. The Tonlinos and Tonlino Lot 11B.

The Tonlinos took title to Tonlino Lot 11B from the Town of Blandford on September 27, 2006. The Tonlinos have produced no evidence of their predecessors in title use of Drive D. Rather, the Tonlinos claim a prescriptive easement over Drive D based on their personal use of Drive D while renting and owning a different property near Otis Reservoir. If credited, their evidence is that for approximately eighteen years prior to obtaining title to Tonlino Lot 11B, the Tonlinos rented the same cottage along Otis Reservoir. Beginning when they rented the cottage, the Tonlinos used Drive D without permission during two or three weekends a month, during all seasons, by foot, motor vehicle and snowmobile. The Tonlinos used Drive D most commonly to access their boat docked on Prince Island and would often park vehicles along Drive D. The Tonlinos have only accessed Prince Island by using the footbridge located at the end of Drive D.

The Tonlinos cannot establish a prescriptive easement to use Drive D that is appurtenant to Tonlino Lot 11B. They have only owned Tonlino Lot 11B since 2006, approximately four years before this action was filed. To establish twenty continuous years of prescriptive use of Drive D for the benefit of their property, they would have to show evidence of use by the prior owners of Tonlino Lot 11B. Ryan, 348 Mass. at 264; Denardo, 16 LCR at 144. They have presented no such evidence. All their evidence of use of Drive D prior to 2006 concerns their personal use of Drive D when they were renting an entirely separate property. This evidence cannot be used to establish an easement appurtenant to the property they currently own.

The Tonlinos can, however, use this evidence of their personal use of Drive D to try to establish a prescriptive easement in gross. An easement in gross is an easement that attaches to an individual rather than to another property. Paul v. Five Kids Realty Trust, Inc., 16 LCR 96 , 101 (2008). Whether one can acquire easements in gross prescriptively appears to be an open question in the Commonwealth. Denardo, 74 Mass. App. Ct. at 360 n.7. In Waters v. Lilley, 4 Pick. 145 (1826), the SJC suggested that a profit a prendre must be appurtenant to an estate. Id. at 148. On the other hand, in Carville v. Commonwealth, 192 Mass. 570 (1906), the SJC seemed to assume without deciding that if the plaintiff had acquired a [prescriptive] right, it was an easement in gross, or a profit a prendre. Id. at 571. Other states have found a prescriptive easement can be held in gross. See Saunders Point Ass'n, Inc. v. Cannon, 177 Conn. 413, 416-417 (1979); Bova v. Vinciguerra, 184 A.D.2d 934, 935 (N.Y. App. Div. 1992) (plaintiff who walked across a path for 40 years, but did not own any property during that time, held a prescriptive easement in gross); Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984). In Denardo, the Appeals Court stated that [t]hough easements in gross are disfavored, and an easement will be construed as appurtenant if it can fairly be said to serve a discrete parcel, that does not mean that a use that is sufficient to create a prescriptive right is negated if it is not appurtenant to an identifiable estate. Denardo, 74 Mass. App. Ct. at 360 n.7.

As the court reads the Appeals Courts statements in Denardo and the unsettled state of the law in the Commonwealth, there is nothing that bars the Tonlinos from seeking to establish a prescriptive easement in gross over Drive D for their personal use. As they have presented disputed evidence of twenty continuous years of open, notorious and adverse personal use of Drive D, their claim for a prescriptive easement in gross survives the prescriptive easement motion, and the prescriptive easement motion is denied with respect to the Tonlinos.

e. Valenzisi Lot 14B.

On January 25, 1975, Prince & Prince conveyed Valenzisi Lot 14B to Frank and Jean Valenzisi, and on September 26, 2006 Frank and Jean Valenzisi conveyed Valenzisi Lot 14B to the Valenzisi Trust. Since the 1975 conveyance, the Valenzisis have lived in New York. From 1975-1985 the Valenzisis visited Valenzisi Lot 14B around two or three times per month. During their visits the Valenzisis parked their car by Valenzisi Lot 14B and walked down Drive D to Otis Reservoir. After 1985, their visits became less frequent. From 1985-2009 the Valenzisis visited Valenzisi Lot 14B approximately once a year, always in the fall, and every year would walk down Drive D to Otis Reservoir. The Valenzisis stopped visiting to the property in 2009.

The Valenzisi Trust have not presented evidence in the record sufficient to support a claim for a prescriptive easement to use Drive D for the benefit of Valenzisi Lot 14B. The Valenzisis use of Drive D between 1975 and 1985, if credited, is sufficiently open, notorious, adverse and continuous to support prescription over that ten-year period. Their use of Drive D after 1985, however, is not sufficiently continuous to support prescription. The evidence is that they used Drive D only once a year after 1985. While seasonal or occasional uses may still be continuous enough to support prescription, Kershaw, 342 Mass. at 320-21, a single annual use of Drive D is not. Boothroyd, 68 Mass. App. Ct. at 45. The Valenzisi Trust has not presented evidence to support twenty years of continuous use of Drive D, an essential element of their prescriptive easement claim, and summary judgment must enter dismissing that claim. Kourouvacilis, 410 Mass. at 711. The prescriptive easement motion is allowed with respect to the Valenzisi Trust.

f. Harris Lot 27B.

On February 25, 2003, Harris, as co-tenant of Susan and Jean Dakin, was conveyed Harris Lot 27B. On August 25, 2011, Harris was served with the Plaintiffs Request for Admissions under Rule 36 of the Massachusetts Rules of Civil Procedure. Request Number 3 asked Harris to admit he does not hold a prescriptive easement over Drive D. In his responses to the Plaintiffs Request for Admissions, Harris admitted Request Number 3. Any matter admitted under this rule is conclusively established. Mass. R. Civ. P. 36(b). The prescriptive easement motion is allowed with respect to Harris.

g. Freebern Lot 30B.

In 1963, Christine Sullivan acquired Freebern Lot 30B. There is evidence in the record as follows. In 1987, Christine Sullivan passed away and Robert Sullivan took title to Freebern Lot 30B. From 1963 to 2007, Sullivan went to Lot 30B between six to twelve times a year. During his visits Sullivan ice fished, took out wood, and used Drive D to access Prince Island and Otis Reservoir. The owners of lots along Drive D were never friendly to Sullivan. The owners never gave him permission to use Drive D but he was also never denied access to Drive D. On January 25, 2007, Sullivan conveyed Freebern Lot 30B to R. Scott Freebern. Since the 2007 conveyance, Freebern has visited visit Lot 30B pretty much every weekend during the summer months and around every other weekend during the fall months. When he visits, Freebern goes to Prince Island at least once a day to swim, boat and socialize.

Through tacking the use of his predecessor on to his own use of Drive D, Freebern has presented evidence that the owners of Freebern Lot 30B openly, notoriously, adversely and continuously used Drive D for twenty years. Drawing all inferences in Freeberns favor, Mr. Sullivans use was seasonal because he would ice fish and take out wood when he visited his property. Freeberns use is consistent as he uses Drive D every weekend in the summer and every other weekend in the fall. Although it is not clear if he visits in the winter or spring months, his seasonal use is continuous because it has been done with regularity. The prescriptive easement motion is denied with respect to Freebern.

h. Prince Island.

It is undisputed that Island Acres was organized in 1976; that Prince & Prince conveyed Prince Island to Island Acres in the 1977 Island Acres Deed; that Island Acres was involuntarily dissolved on November 17, 1986; that prior to its dissolution Island Acres never conveyed any interest in Island Acres; and that Prince & Prince was dissolved on June 18, 1980.

It is also undisputed that PIA was organized January 31, 2008; that Prince & Prince was revived on June 18, 2008; and that by the 2008 PIA Deed, Prince & Prince purported to convey its interest in Prince Island to PIA. It is further undisputed that Island Acres was revived on November 3, 2009 and that by the 2010 PIA Deed, the receiver of the revived Island Acres purported to convey its interest in Prince Island to PIA.

Disputed facts in the record are as follows. Prince & Prince intended Drive D to be used to access Prince Island, mainly by members of Island Acres. Initially, Drive D was wet and only four-wheel drive vehicles were able to access the drive. Island Acres and abutters of Drive D filled in Drive D to make the drive more accessible. Island Acres built a fire pit and brought a picnic table to Prince Island, which was used by their members. Robert Sullivan is aware that since approximately 1970 members of Island Acres have used Drive D to access Prince Island. Mr. Sullivan knew Island Acres dissolved but upon dissolution Mr. Sullivan did not observe the use of Drive D change. James Sullivan has observed members of Island Acres and the public use Drive D. James Sullivan also witnessed owners of lots along Drive D verbally abuse people using Drive D. Freebern attended several social and recreational functions on Prince Island that were hosted by Island Acres. Freebern has seen Island Acres members use Drive D to access Prince Island via foot and vehicle on a regular basis. When he visits his property, Freebern goes to Prince Island at least once a day to swim, boat and socialize. When Freebern learned Island Acres had been dissolved he formed PIA for the purpose of maintaining Prince Island and the roads. Many members of Island Acres became members of PIA. PIA has paid taxes on Prince Island to the Town of Otis since 2007. Some of the property owners in the subdivision are members of PIA. The Tonlinos regularly pay dues to PIA. Because they are dues-paying members of PIA the Tonlinos believe they own an interest in Prince Island. They use Drive D most commonly to access their boat docked on Prince Island and have often parked vehicles along Drive D. They have only accessed Prince Island by using the footbridge located at the end of Drive D. The Valenzisis regularly paid dues to Island Acres and continue to pay dues to PIA.

Based on these undisputed and disputed facts, PIA, as the current title holder to Prince Island, could prove that it holds a prescriptive easement to pass over Drive D appurtenant to Prince Island. Use of Drive D by PIA and its predecessor Island Acres can be established by the use made by its individual members and agents, such as Robert Sullivan, James Sullivan, Freebern, the Tonlinos, and the Valenzisis, since 1977. [Note 22] The prescriptive easement motion with respect to Island Acres and PIA is denied.

i. Public Prescriptive Easement.

The public may gain the right to access an existing way in one of three ways: (1) a laying out by public authority in accordance with G. L. c. 82, §§ 1-32; (2) prescription; or (3) prior to 1846, a dedication by the owner to public use coupled with an express or implied acceptance by the public. Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 594-595 (1994); Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). A way may become public by prescription if there has been actual public use that was open, notorious, adverse, uninterrupted and continuous under a public claim of right for twenty years. Id. at 84.

The question of whether a private way has become public by prescription is a matter of general public interest and concern, and case law has created a high bar to making such a claim. Stone v. Garcia, 15 LCR 640 , 647-48 (2007) (noting occasional recreational use does not give rise to a public prescriptive easement). The party claiming the public easement bears the burden of proof. Cox v. Considine Dev. Co., 21 LCR 172 , 180 (2013). Unlike in a prescription claim by an individual, continuous public use of a claimed easement for twenty years does not raise a presumption of adversity. Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969); Rivers, 37 Mass. App. Ct. at 597. Therefore, to establish a public use was adverse, it must be proved, or admitted, that the general public used the way as a public right. Boxborough, 356 Mass. at 490, quoting Bullukian v. Franklin, 248 Mass. 151 155 (1924). Public use must be shown by facts which distinguish the use from a rightful use by those who have permission to use the way. Id. A claim for public prescriptive rights will fail when the party claiming the easement can show only sporadic use by a limited number of individuals. Gower v. Saugus, 315 Mass. 677 , 682 (1944) (holding evidence of occasional use of private way connecting two houses to public way by various vehicles including police cars, fire trucks, pleasure vehicles, and people residing on side streets, to be consistent with use of private way for benefit of lot owners in development and not under claim of public right). Thus, for example, in Rivers, evidence of "sporadic use of the discontinued roads by the public for recreational purposes," such as testimony regarding occasional lumbering operations, frequent use by hunters, nature viewers, visitors to residences and occasional cars traveling into the woods, did not provide a basis for sending to the jury the question whether a discontinued way was public. Rivers, 37 Mass. App. Ct. at 597.

The plaintiffs argue the defendants should be precluded from bringing a claim for a public prescriptive easement because no such claim was made in any pleading or discovery response. The plaintiffs further assert a claim for a public prescriptive easement is an unfair surprise because the claim was brought after discovery was concluded and summary judgment motions were filed. The court need not decide this issue. Accepting the defendants claim of a public prescriptive easement, there is insufficient evidence in the record by which they could establish that claim, and the prescriptive easement motion with respect to the defendants claim of public prescriptive easement is allowed.

The evidence set forth by the defendants is as follows. Several plaintiffs in this case have indicated members of the public have used and continue to use Drive D to access Prince Island and that they have never taken steps to prevent the public from using Drive D. Leonard Alexander has seen members of the general public use Prince Island for swimming. Gregg Alexander was never asked for permission to use Drive D and never expressly granted permission to anyone to use Drive D, but never denied anyone access to Drive D. Gary Brazee has seen, every year since 1980, Drive D being used by people to access Prince Island and Otis Reservoir by foot and car. Since acquiring property along Drive D in 1986 with his wife, Marsha Beckman, Marshall Beckman has observed individuals other than the defendants in this case accessing Drive D. Ms. Beckman has never observed no trespassing signs posted on Drive D. Beginning in 1986, Ms. Beckman observed a range of people using Drive D, including some of the defendants in this case. Ms. Beckman has observed regular weekend traffic on Drive D but she has never discussed the problems of parking and noise with those using Drive D. William Ahrens and Lois Ahrens, plaintiffs in this case, have never stopped anyone from using Drive D nor given anyone permission to access Drive D. William Ahrens believes Drive D has been used in the same manner for 25 years and is not concerned about the use of Drive D.

The facts set forth by the defendants are similar to those set forth in Cox, where the claimants relied on various letters and e-mails that indicated the general public used and the town maintained the road, and only show Drive D was commonly used by a range of people and that the plaintiffs never objected to or took steps to prevent public use. Cox, 21 LCR at 180. At most, the evidence would establish sporadic recreational use of Drive D by the public, which is insufficient to support a public prescriptive easement. Gower, 315 Mass. at 682; Rivers, 37 Mass. App. Ct. at 597. Moreover, the defendants have also failed to present evidence to show the general public used Drive D as a public right. Boxborough, 356 Mass. at 490. Accordingly, the defendants have presented no underlying evidence that could substantiate a claim for a public prescriptive right over Drive D, and summary judgment must enter on that claim. Kourouvacilis, 410 Mass. at 711.

Conclusion

For the foregoing reasons, the Plaintiffs Motion for Partial Summary Judgment is ALLOWED IN PART AND DENIED IN PART as follows. It is hereby DECLARED that (a) the defendants Donald Blier, Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John J. Rhodes, Ronald L. Grant, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Family Trust, Joshua A. Weinstein, Melissa B. Weinstein, Timothy Harris, R. Scott Freebern, Francis R. Zabik, Francine A. Caulfield, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc. have no claim to an easement by deed or an easement by estoppel to use Drive D; (b) the defendants Donald Blier, Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John J. Rhodes, Ronald L. Grant, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Family Trust, Joshua A. Weinstein, Melissa B. Weinstein, Timothy Harris, R. Scott Freebern, Francis R. Zabik, and Francine A. Caulfield have no claim to an easement by necessity to use Drive D; (c) the defendants John J. Rhodes, the Valenzisi Family Trust, and Timothy Harris have no claim to a prescriptive easement to use Drive D; (d) the defendants Donald Blier, Nickolas B. Peters, Anna M. Peters, Renata A. Legowski, John J. Rhodes, Ronald L. Grant, John B. Tonlino, III, Kimberly A. Tonlino, the Valenzisi Family Trust, Joshua A. Weinstein, Melissa B. Weinstein, Timothy Harris, R. Scott Freebern, Francis R. Zabik, Francine A. Caulfield, Island Acres Property Owners Association, Inc., and Prince Island Association, Inc. have no claim to a public prescriptive easement to use Drive D. The remainder of the Plaintiffs Motion for Partial Summary Judgment is DENIED. A status conference is set down for December 5, 2013 at 12:00 noon to discuss further proceedings in these consolidated cases.

SO ORDERED

[Note 1] The amended complaint names these defendants as Joshua A. Weinsten and Melissa B. Weinsten (emphasis supplied). It appears from the record that their last name is spelled Weinstein, and that spelling is used in this order.

[Note 2] It is not clear from the record how the two deeds, seemingly recorded the same day one after the other, came to be recorded in two separate books in the Berkshire registry.

[Note 4] The chain of title from the Rosenfelds to Winifred Alexander is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 5] This 1981 plan does not appear in the record, but is referred to in the 2010 deed conveying Brazee Lot 23B described above.

[Note 6] This 1983 deed is not contained in this record. The chain of title between Edward R. Brazee and Herman B. Pease, and Bruce D. Gamwell and Susan L. Gamwell is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 7] The chain of title between George E. Miller and Jeanette M. Miller, and Thomas J. Madison, a/k/a Thomas J. Madesky, is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 8] The chain of title from Raymond L. and Nellie M. Brazee to Paul R. Mastrianni is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 9] Chain of title from Ilmer N. and Ethel R. Raitio to David M. Doyle is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 10] The deed conveying the property that was presumably recorded in the Hampden registry does not appear in the record. The copy of the deed recorded in the Berkshire registry before the court does show a stamp indicated that it was received at some registry on February 4, 1959, and a subsequent deed conveying this property makes reference to a deed recorded in the Hampden registry at Book 2658, Page 263.

[Note 11] Any deed for this conveyance that was recorded in the Hampden registry does not appear in the record.

[Note 12] The chain of title from Christine A. Sullivan to Robert W. Sullivan is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 13] The chain of title from the Doirons to Francis R. Zabik is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 14] Chain of title from John L. Stoto to the Rutherfords is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 15] The chain of title from Walter L. Grant and Shirley A. Grant to Shirley A. Grant, Kenneth N. Grant, Gary L. Grant and Ronald L. Grant, Sr. is not contained in the record, but there appears to be no dispute as to this chain of title between the parties.

[Note 16] The record does not contain the deed mentioned in that provision, yet the issue does not appear to be in dispute.

[Note 17] Although Prince & Prince appears to have been dissolved at this time, the parties do not challenge the validity of this conveyance.

[Note 18] The Blier Deed also conveyed Arthur Bliers interest in Lots 12B and 28B, and purported to convey his interest in Rhodes Lot 3B. The conveyance of the interest in Rhodes Lot 3B is ineffective because, as discussed above, Donald Blier and Arthur Blier as grantors conveyed Rhodes Lot 3B to defendant John J. Rhodes by a deed prior to this conveyance.

[Note 19] The chain of title from Frank E. Pollard, Trustee to Beverly A. Harris is not contained in the record, but the deed does refer to a deed from Pollard to Harris dated August 22, 1978 and recorded in the Hampden registry in Book 4646, Page 36. There appears to be no dispute as to this chain of title between the parties.

[Note 20] The deed is not clear on which plan it is referring to. It states that the plan is dated Oct. 1953 and in the following paragraph states that Prince Island is shown on the plan, which suggests it is the 1953 Walker Plan, but the recording information refers to the 1949 P&M Plan.

[Note 21] The defendants also argue that without access to Drive D the use and value of their property is substantially reduced. Relying on a case from the Michigan Court of Appeals, the defendants argue that this loss of property value establishes an easement by necessity. See Koller v. Jorgenson, 76 Mich. App. 623, 628-29 (1977) (plaintiffs' substantial loss of value in and use of their lots established easement by necessity). Koller is not the law of Massachusetts, and has never been cited in another jurisdiction.

[Note 22] The dissolution of Island Acres did not necessarily interrupt its prescriptive use of Drive D if its members continued to use Drive D to access Prince Island. Cf. Tonello v. Pilotte, 21 LCR 77 , 85-86 (2013) (dissolution of corporation was not abandonment of easement, especially as members continued to use easement)

MISC 10-437103

November 12, 2013

Berkshire, ss.

Foster, J.

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT.