Plaintiffs FJN Partnership ("FJN"), 343 State Road Realty Trust (the "Trust"), Craig Hockmeyer ("Hockmeyer"), and Elio Silva ("Silva") (together, "Plaintiffs") filed their Verified Complaint on February 14, 2011, pursuant to G. L. c. 240, § 6 and G. L. c. 231A, § 1, alleging prescriptive rights in, and seeking a declaratory judgment and to quiet title to the use of, a right of way (the "ROW") on property owned by Defendant Island Properties Improvements, LLC ("Island Properties"). [Note 1] [Note 2] On February 18, 2011, Plaintiffs filed their Motion for Lis Pendens and Motion for Preliminary Injunction relative to removal of a fence (the "Fence") installed by Defendants and blocking Plaintiffs' access to the ROW. On March 14, 2011, Defendants filed their Answer and Counterclaim, alleging trespass by Plaintiffs on the ROW and damages relating to the trespass. [Note 3] Defendants filed a Cross-Motion for Preliminary Injunction on March 15, 2011. A hearing on the preliminary injunction motions was held on March 16, 2011. On March 21, 2011, Plaintiffs filed their Answer to Counterclaim. This court issued its Order Allowing Plaintiffs' Motions for Preliminary Injunction and Lis Pendens on March 28, 2011, requiring that Defendants remove the Fence. By Order dated April 14, 2011, this court required that Plaintiffs post a bond in the amount of $12,000 relative to the Preliminary Injunction Order. A case management conference was held on April 27, 2011. On May 3, 2011, this court ordered that Plaintiffs' bond be reduced to $10,000.
On September 20, 2012, Plaintiffs filed their Motion for Summary Judgment Establishing a Prescriptive Easement, a Motion to Dismiss Defendants' Counterclaim for Damages, together with supporting memorandum, Statement of Material Facts, and Appendix, including Affidavits of John Rancourt, Louis J. Giordano ("Giordano"), Edward D. Charter ("Charter"), Elio Silva, Tara Bolash-Larsen (two), Bradford Moore (two), Craig Hockmeyer, and depositions of Giordano, Charter and Hockmeyer. [Note 4] Defendants filed their Opposition and Cross-Motion for Summary Judgment on October 23, 2012, together with supporting memorandum, Additional Material Facts, and Appendix. On November 20, 2012, Plaintiffs filed their Motion to Strike two exhibits filed by Defendants, and on November 23, 2012, Plaintiffs filed their Reply Memorandum. Defendants filed their Motion to Strike Plaintiffs' Reply on December 7, 2012. A hearing was held on all motions on December 10, 2012, and the matter was taken under advisement. [Note 5]
I find that the following material facts are not in dispute:
1. 342 State Road, Tisbury, MA (the "Market Lot")(as shown as Lot 1 on a plan titled "Plan of Land in Tisbury, Mass. Prepared for Michael A. Jampel" dated September 19, 1995 and prepared by Schofield, Barbani & Hoehn, Inc.(the "1995 Plan") and 15 Mechanics Way, Tisbury, MA (the "Bicycle Shop Lot")(as shown as Lot 2A on a plan titled "Plan of Land in Tisbury, Mass. Prepared for Edward D. Charter" dated January 12, 2000 and prepared by Schofield, Barbini & Hoehn, Inc. (the "2000 Plan") are defined as Plaintiff Property.
2. From 1988 to 1994, Edward D. Charter ("Charter") owned Lot 1 and Lot 4 as shown on a plan titled "Plan of Land in Tisbury, Mass. Prepared for Edward D. Charter & Louis J. Giordano" dated May 9, 1988 and prepared by Schofield Brothers, Inc. (the "1988 Plan"). The 1988 Plan shows a circular asphalt driveway from the State Highway to Lot 1 (the "Driveway"), a dwelling (the "Building") and a garage (the "Garage") all located on Plaintiff Property which forms part of Lot 1 on the 1988 Plan. In 1988, Charter converted the Building to a mixed use building with a business office, rental office and massage parlor on the first floor and a rental apartment on the second floor. The Building was formerly a residence. The Garage was used for storage for Charter's grocery distribution business after he bought it in 1988. Around 1989, Charter extended the Driveway servicing Plaintiff Property to create a circular traffic pattern around the Building and in front of the Garage. In 1990, Charter converted the first floor of the Building to a grocery retail outlet. Also in 1990, Charter rebuilt the Garage and leased it to a pet store operator for approximately one year, then relocated the grocery retail outlet to the Garage from the Building, where it stayed until 2000. The first floor of the Building was then converted to a grocery market, which is its current use today. For a short period of 2000 to 2003, it was used as a retail apparel store and a retail tile store.
3. In 1994, Charter sold Lots 1 and 4 (as shown on the 1988 Plan) to Michael Jampel ("Jampel"), but continued to lease Lot 1 on the 1988 Plan until 2000. The first floor of the Building was used as a market, and the Garage was used a grocery retail outlet. In 1995, Jampel subdivided Lots 1 and 4 into Lot 1 (the Market Lot), Lot 2 (which contained the Bicycle Shop Lot) and Lot 3 as shown on the 1995 Plan.
4. In 2000, Lot 2 (as shown on the 1995 Plan) was subdivided into Lots 2B and 2A (the Bicycle Shop Lot) as shown on the 2000 Plan. Both the Bicycle Shop Lot and Lot 2B were conveyed to Charter. Charter conveyed the Bicycle Shop Lot to the Trust in 2000, and Hockmeyer (brother of Vincent Hockmeyer, the Trustee of the Trust) opened a bicycle shop there known as Craig's Bicycles.
5. In 2000, Jampel conveyed the Market Lot to FJN. FJN leased the Market Lot to Silva, who opened Tisbury Farm Market there in approximately 2003. [Note 6] Silva has eleven parking spaces next to the market.
6. Louis J. Giordano ("Giordano") purchased property located at 350 State Road, Tisbury, MA by deed dated February 27, 1985 ("Defendant Property"). Defendant Property abuts Plaintiff Property. Defendant Property is shown as Lots 2 and 3 on the 1988 Plan. In 2006 Giordano subdivided Defendant Property into Lots 1 and 2 (as shown on plan titled "Plan of Land in Tisbury, Mass. Prepared for Louis J. Giordano" dated May 1, 2006 prepared by Schofield, Barbani & Hoehn, Inc. (the "2006 Plan"). Giordano operated a restaurant called Louis' Restaurant (the "Restaurant") on Lot 1 of Defendant Property from 1985 to 2003. Douglas and Leslie Hewson operated the Restaurant from 2003-2007. The Restaurant was vacant from early 2007 until late 2007, when Antonio Silva (no relation to Elio Silva) took over the Restaurant and operated it until 2009.
7. On March 26, 2010, Giordano sold Defendant Property to Rancourt. Rancourt then sold Lot 1 (as shown on the 2006 Plan) to Island Properties. In 2009 the building on Lot 1 of Defendant Property ceased operation as the Restaurant and was converted by Rancourt to another commercial business (a motorcycle shop).
PLAINTIFFS' USE OF THE ROW
8. The ROW has existed since at least 1985. The ROW is shown on the 1988 Plan as a circular driveway from the State Highway around the Restaurant (on the 2006 Plan, the ROW is the ten foot wide access and utility easement). The ROW extends all the way around the Restaurant in a circle, but not past the point where the ten foot wide access and utility easement becomes the twenty foot wide access and utility easement. The ROW was a dirt driveway until 1994, when Giordano paved it. In 2006, Giordano subdivided his property and created a new Lot 1 and Lot 2 (as shown on the 2006 Plan). He also created a new access and utility easement for the benefit of Lot 2 as shown on the 2006 Plan.
9. From 1994 to 2003, Giordano testified that he had seen occasional use of the ROW by Plaintiffs and their predecessors.
10. When Charter purchased Plaintiff Property in 1988 and converted it to commercial use, he used both the Driveway located on Plaintiff Property as well as the ROW located on Defendant Property for access to both the Building and the Garage on Plaintiff Property. In 1989, Charter extended the Driveway to access the rear of his property, as shown on the 1995 Plan. However, Charter continued to use the ROW on a regular daily basis from 1988 to 2000 (Charter was a commercial tenant from 1994 to 2000). From 1990 to 1992, Silva lived in the second floor apartment in the Building on the Market Lot. From 1991 to 1999, Silva worked at the grocery market on the first floor of the building. From 1990 through 1999, Silva used the ROW and witnessed occupants, tenants, employees, and customers of both businesses on Plaintiff Property use the ROW. In 2000, Charter conveyed the Bicycle Shop Lot to the Trust, which leased the property to Hockmeyer, who opened a bicycle sales and repair shop called Craig's Bicycles in the Garage. Jampel conveyed the Market Lot to FJN which leased the Building for use as a retail apparel store (East Coast Outfitters) and retail tile store (La Vita Tile) for three years and then leased the building to Silva, who opened a retail apparel and jewelry store (Fogaca's) and then a market (Tisbury Farm Market). The market still operates there today. Between 2000 and 2003, Silva's brother rented the second floor apartment in the Building for a year and Silva visited him there. From 1988 to present, Charter has witnessed the constant use of the ROW by customers and employees of the two businesses on Plaintiff Property (Charter visited Plaintiff Property at least three times a week during this period of time). Silva also testified that with respect to the Market Lot, he, his employees, guests, customers and suppliers, used the ROW on a regular basis from 2000 to present.
11. Tara Bolash-Larsen ("Bolash-Larsen") worked full time at the Restaurant as a waitress from 1989 to 1998. During that time she witnessed occupants, customers and delivery trucks for Plaintiff Property use the ROW on a regular basis.
12. Bradford Moore ("Moore") worked full time as a cook at the Restaurant from 1989 through 2004. During that time he witnessed occupants, customers and delivery vehicles use the ROW to access Plaintiff Property on a regular basis.
13. Hockmeyer has operated Craig's Bicycles on Plaintiff Property from 2000 to the present. The bicycle shop operates annually from April to Thanksgiving. Hockmeyer testified that access to the bicycle shop is both from the ROW and the Driveway on Plaintiff Property, both used on a regular basis. Hockmeyer built a brick patio around the Garage and placed structures on the patio, but customers and employees of the bicycle shop regularly used the ROW during that period on foot without any problem.
14. On January 3, 2011, Rancourt had the Fence constructed on the boundary of Defendant Property and Plaintiff Property, running from near the intersection of the State Highway to the front of Craig's Bicycles on the Bicycle Shop Lot. The Fence has blocked access to approximately 50% of the parking spaces for the market, as shown on plan titled "Site Plan State Road, Tisbury" dated February 10, 2011 (the "2011 Plan").
Motion to Strike.
Plaintiffs filed a Motion to Strike two exhibits filed by Defendants (an engineer's field notes dated March 23, 1988, and a report of Lester E. Garvin, an expert aerial photograph interpreter, dated May 24, 2011), both on the basis that they are inadmissible hearsay. Mass.R.Civ.P. 56(e) requires that affidavits be sworn to or certified, and therefore, admissible as evidence in a motion for summary judgment. This court agrees that such exhibits are inadmissible hearsay, as they are not sworn and have no foundation.
As a result, I ALLOW the Motion to Strike.
Easement by Prescription.
Plaintiffs argue that they have established an easement by prescription to use the ROW. Defendants argue that Plaintiffs have not established a prescriptive easement in the ROW and that Plaintiffs have trespassed on the ROW.
An acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years. G.L. c. 187, § 2. As with adverse possession, the use must be open, notorious, continuous, and adverse. Ryan v. Stavros, 348 Mass. 251 , 263 (1964). Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003). "[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Truc v. Field, 269 Mass. 524 , 528-529 (1930). Tucker v. Poch, 321 Mass. 321 , 324 (1947). The burden of proof to establish an easement by prescription rests upon Plaintiffs. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007).
A period of use resulting in the creation of a prescriptive right can be made up of several periods of successive adverse use by different persons provided there is privity between the persons making successive uses. "To produce the necessary privity there must be some relation between the successive users of such a nature that the 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 to the earlier one." Ryan v. Stavros, 348 Mass. 251 , 264 (1964) (citing Am. Law of Property, § 8.59).
Twenty Year Use.
Plaintiffs contend that they have used the ROW on a regular basis from 1988 to 2011, the date that the Fence was installed. [Note 7] Affidavit evidence shows that there were two buildings on Plaintiff Property when Charter purchased it in 1988, both located on Lot 1 on the 1988 Plan (the Building and the Garage). The Building was formerly a residence; when Charter purchased it in 1988, he converted the use to commercial use with a rental office, a business office and a massage parlor downstairs and a rental apartment upstairs. Initially in 1989, the Garage was used for storage for Charter's grocery distribution business. In 1990 Charter converted the downstairs use of the Building to a grocery retail outlet. In 1990 the Garage was renovated and rented to a pet store. When the pet store failed approximately one year later, the grocery retail outlet was relocated from the downstairs of the Building to the Garage where it operated until 2000. After the relocation of the grocery retail outlet, the downstairs of the Building was converted to a market which it has been used as since (except for three years, 2000 to 2003, when it became a retail apparel store and a retail tile store operated by Robert Fuller, and a retail apparel and jewelry store operated by Silva). Charter owned the Market Lot and the Bicycle Shop Lot (together, Plaintiff Property) from 1988 to 1994, then sold it to Jampel and leased both back from 1994 to 2000. In 2000, Jampel sold the Market Lot to FJN, who leased it for retail use for three years and then leased it to Silva, who has run the market from 2003 to present. In 2000, Charter purchased back the Bicycle Shop Lot and sold it to the Trust, who leased it to the Craig's Bicycles, which has operated there to the present. As a result, both buildings on Plaintiff Property have been occupied for commercial use for the entire period, 1988 to 2011.
Plaintiffs contend, and support with affidavit evidence, that they and their predecessors have used the ROW on a regular basis from 1988 to the present for the benefit of Plaintiff Property. Defendants argue that Plaintiffs cannot show privity of ownership of the Market Lot from 1994 to 2000. However, Charter gave affidavit testimony that he owned the Market Lot and the Bicycle Shop Lot from 1988 to 1994, and leased them from 1994 to 2000. He operated the market and the grocery retail outlet in the Building and the Garage, respectively, during that period. Charter went from being the owner to the tenant and was frequently on the property during both these periods of time. Therefore, lease privity exists. Shoer v. Daffe, 337 Mass. 420 , 424 (1958). Ryan v. Stavros, 348 Mass. 251 , 264-265 (1964)(A tenant under a lease can be used to establish privity as to ownership). Such affidavit evidence is not challenged by any affidavits produced by Defendants. Defendants also contend that the ROW was used by the general public and not used by anyone in privity with Plaintiffs. However, the affidavit testimony supports the position that the use of the ROW was by Plaintiffs' employees, customers and delivery people, and not by the general public (Affidavit of Charter states he witnessed "tenants, employees and customers" of Plaintiff Property use the ROW; Affidavit of Silva states he witnessed "occupants, tenants, employees and customers of the front and rear buildings" on Plaintiff Property use the ROW; Affidavits of Tara Bolash-Larsen and Bradford Moore states "occupants, customers, and delivery vehicles" of both buildings on Plaintiff Property utilized the ROW). Defendants also argue that since no signs were posted on Plaintiff Property relative to use of the ROW, such use could not have been for the benefit of Plaintiffs. Again, all evidence points to use of the ROW by people associated with Plaintiffs' business; there was no need for the use of signs.
Defendants also argue that the Bicycle Shop Lot does not have a continuous twenty year period of use of the ROW because Hockmeyer built a brick patio around the Garage and placed structures on the patio which blocked access to the ROW. Plaintiffs contend that the patio does not block access from the Bicycle Shop Lot to the ROW, and affidavit evidence indicates that customers and employees of the bicycle shop regularly used the ROW during that period without any problem (Affidavit of Silva states from 2000 to 2011, "[Hockmeyer], [his] employees, guests, customers and suppliers" used the ROW "all the time"; Affidavit of Hockmeyer states the ROW was used during the whole period he operated Craig's Bicycles by "[himself], [his] employees, invitees, customers and suppliers... all the time").
As a result of the foregoing, I find that Plaintiffs and their predecessors have used the ROW for more than twenty years for the benefit of Plaintiff Property.
Defendants argue that until the ROW was paved in 1994, use of the ROW by Plaintiffs was speculative, primarily because of a concrete barrier along the boundary line between the two properties, which blocked access by Plaintiffs to the ROW. There is no credible evidence of the existence of such a concrete barrier. Moreover, the affidavits of Bolash-Larsen and Moore, employees of Defendants' predecessor in title, gave evidence that employees of the Restaurant saw access to Plaintiff Property from the ROW commencing in 1989 (Bolash-Larsen and Moore both state that during their terms of employment, 1989 to 1998 and 1989 to 2004, respectively, people accessed Plaintiff Property using the ROW). These affidavits were corroborated by Charter. Except for this issue, there is little question that continual driving on the ROW is a notorious use.
As a result of the foregoing, I find that Plaintiffs and their predecessors made notorious use of the ROW for the benefit of Plaintiff Property.
Defendants contend that the use of the ROW by Plaintiffs was permissive, arguing that two adjoining businesses probably encouraged common use of the ROW, and that such joint use was not inconsistent with, nor interfered with, Giordano's rights. There is, however, no evidence in the record which supports this theory. Giordano never gives testimony that he gave permission to Plaintiffs to use the ROW, and Charter and Silva testified that they were never given permission to use the ROW. There is no cited case law which supports the theory that Plaintiffs' use must interfere with Defendants' rights in order to show adverse use. Defendants also argue that the use of the ROW by people associated with Plaintiffs was indistinguishable from use of the ROW by people associated with Defendants because it is not easy to see where people park from inside the Restaurant. Again, affidavit evidence indicates that the people associated with Plaintiffs' use of the ROW are clearly different from the general public because such people were seen to drive from Defendant Property to Plaintiff Property and park there for the use of those two businesses (Affidavit of Charter states he witnessed "tenants, employees and customers" of Plaintiff Property use the ROW; Affidavit of Silva states he witnessed "occupants, tenants, employees and customers of the front and rear buildings" on Plaintiff Property use the ROW; Affidavits of Tara Bolash-Larsen and Bradford Moore both state "occupants, customers, and delivery vehicles" of both buildings on Plaintiff Property utilized the ROW).
As a result of the foregoing, I find that Plaintiffs and their predecessors have established adverse use of the ROW.
Based on the foregoing, I find that Plaintiffs and their predecessors meet all the requirements for establishing prescriptive rights to the use of the ROW.
As a result of the foregoing, I ALLOW Plaintiffs' Motion for Summary Judgment, and DENY Defendants' Cross-Motion for Summary Judgment.
Judgment to enter accordingly.
[Note 1] Defendant John L. Rancourt ("Rancourt") (together with Island Properties, "Defendants") is the manager of Island Properties.
[Note 2] Plaintiffs also sought damages resulting from the erection of the Fence (as hereinafter defined) by Defendants.
[Note 3] The Counterclaim included a claim for damages resulting from water runoff from Plaintiff Property (as hereinafter defined) onto Defendant Property (as hereinafter defined).
[Note 4] In their Motion, Plaintiffs withdrew their claim for damages caused by the erection of the Fence.
[Note 5] At oral argument, Defendants withdrew their counterclaim for damages resulting from water runoff onto Defendant Property.
[Note 6] Silva lived at Plaintiff Property from 1990-1992, and worked at Plaintiff Property from 1991-1999, and from 2003-present.
[Note 7] Plaintiffs point out that they only need to show usage of the ROW from 1991 to 2011 to establish twenty year use.