Home MICHAEL F. BURKE, DONNA M. BURKE and SEAN P. BURKE vs. SILVANE SPALENZA f/k/a Silvane Trecartin and JORGE SPALENZA and THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as successor to JPMorgan Chase Bank, N.A. as Trustee of BSALTA 2005-09, Interested Party.

MISC 11-455441

December 27, 2013

Sands, J.


Plaintiffs Michael F. Burke (“Michael”), Donna M. Burke (“Donna”) and Sean P. Burke (“Sean”) (together, “Plaintiffs”) filed their unverified Complaint on November 3, 2011, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to their easement rights over property owned by Defendants Silvane Spalenza (“Silvane”) and Jorge Spalenza (“Jorge”) (together, “Defendants”). Defendants filed their Answer and Counterclaim and Request for Jury Trial on January 3, 2012, claiming extinguishment of any easement by adverse possession. A case management conference was held on January 17, 2012. Interested Party Bank of New York Mellon filed its Answer on January 24, 2012. Plaintiffs filed their Answer to Counterclaim on January 26, 2012. Defendants withdrew their request for jury trial on February 3, 2012. A pre-trial conference was held on March 13, 2013. A site view and the first day of trial at the Land Court in Boston were held on May 16, 2013. The second day of trial was held on May 17, 2013. Both parties filed their post-trial briefs on August 19, 2013, and at that time the matter was taken under advisement.

Testimony at trial for Plaintiffs was given by David Dwyer (professional land surveyor), Richard Salvo (“Salvo”) (registered civil engineer), Edward Harnish (former owner of Plaintiff Property as hereinafter defined), Geraldine Harnish (former owner of Plaintiff Property), Kellyan Burke (current owner of Plaintiff Property), and Donna Burke (Plaintiff). Testimony at trial for Defendants was given by Paul Dewsnap (civil engineer) and Silvane Spalenza (Defendant). Kellyan Burke was a rebuttal witness. There were seventy-six exhibits submitted into evidence. A Decision of today’s date has been issued (the “Decision”). In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that “a right of way over the whole of the driveway [the “Driveway”] as now laid out on said lots” (the “Easement”), pursuant to deeds dated January 18, 1902 (the “1902 Deeds”) in which Charles A. Patch conveyed to Emma Wellman property located at 26 Oakland Street in Melrose (“Plaintiff Property”) and conveyed to Clara Gowing property located at 30 Oakland Street, Melrose (“Defendant Property”), includes the space in front of a garage (the “Garage”) located on Defendant Property, and as a result, Defendants cannot park a vehicle in such space in any manner that interferes with Plaintiffs’ use of the Driveway. In this regard, this court adopts “Sheet A” and “Sheet A.1,” both of which are dated February 28, 2013, and prepared by Otte and Dwyer, Inc., as a valid depiction of the scope and location of the Driveway, and therefore the parties are bound by the size and location of each parking space as shown on Sheet A.1. [Note 1] [Note 2]

ORDERED and ADJUDGED that Plaintiffs have established actual use of the Driveway as it is shown on Sheet A and Sheet A.1.

ORDERED and ADJUDGED that Plaintiffs’ use of the Driveway as shown on Sheet A and Sheet A.1 has been open and notorious.

ORDERED and ADJUDGED that Plaintiffs’ use of Driveway as shown on Sheet A and Sheet A.1 was adverse to Defendants. [Note 3]

ORDERED and ADJUDGED that Plaintiffs’ and their predecessors’ use of the Driveway as shown on Sheet A and Sheet A.1, including the area in front of the Garage, to have been continuous and uninterrupted for a period of at least twenty years.

ORDERED and ADJUDGED that, if Plaintiffs do not have such rights pursuant to the 1902 Deeds, Plaintiffs have established prescriptive rights to the portion of the Driveway in front of the Garage and as shown on Sheet A and Sheet A.1. [Note 4]


[Note 1] Both parties make much about whether or not Defendant Property will/does comply with parking requirements contained in the City of Melrose Zoning Code. This is not an issue before this court and is irrelevant to this court’s analysis regarding the scope of the Easement. This court notes, however, that there are four off street parking spaces appurtenant to Defendant Property: the space in the Garage and Space1, Space 2, and Space 3 to the north of the Driveway.

[Note 2] This case was ripe for settlement and this court strongly encourages the parties to resolve any further disputes amongst themselves. Moreover, there was evidence that Defendants and/or their invitees have parked vehicles in the middle of the Driveway completely blocking access to Plaintiff Property. This activity is also prohibited as it interferes with Plaintiffs’ rights under the terms of the Easement. This court is aware, however, that in certain short term or emergency situations, Defendants may be forced to temporarily idle in the Driveway. All reasonable accommodations should be made by both parties in this regard and the court encourages the parties to display neighborly courtesies to one another. Both parties will be subject to sanctions for any disregard of this Decision and accompanying Judgment for any violations of the terms herein.

[Note 3] This finding is applicably only to the extent that the Plaintiffs’ rights in the Driveway pursuant to the 1902 Deeds is not consistent with the scope and location of the Easement as depicted on Sheet A and Sheet A.1.

[Note 4] Defendants claim adverse possession in their Counterclaim to Plaintiffs’ Complaint; however no mention of adverse possession is made in Defendants’ Post-Trial Memorandum, so this court will not address this argument in its decision. This court deems Defendants to have waived this argument. Moreover, Defendants did not establish facts to justify a claim of adverse possession to extinguish any rights in Space 4. Accordingly, I find that Defendants have not extinguished any portion of the Easement through adverse use or prescriptive rights.