BENJAMIN G. SIEBECKER and JANE B. SIEBECKER vs. TONI OREFICE, EXECUTOR OF THE ESTATE OF ELAINE OREFICE.

Plaintiffs Benjamin G. Siebecker (“Benjamin”) and Jane B. Siebecker (together, “Plaintiffs”) filed their Petition for Registration on July 24, 2009, pursuant to G. L. c. 185, seeking to register property located at 159 and 159R Elm Street, Amesbury, MA (“Plaintiff Property”). Peter J. Cocciardi, Esq. was appointed as Title Examiner on July 28, 2009. A case management conference was held on September 24, 2009. Defendant Lynda G. Hartwell (“Hartwell”) filed an appearance on January 11, 2010. On September 20, 2010, Plaintiffs filed their Motion to Sever and Dismiss, removing from the registration a portion of the Private Way abutting Plaintiff Property and land of Hartwell, which motion was allowed on November 9, 2010. [Note 1] On October 27, 2011, a citation was issued for publication in the Newburyport Daily News, returnable December 5, 2011. On December 5, 2011, Answers were filed by Defendants James Darsney and Kris Giacchetti, and Samantha Racki. Defendant Toni Orefice, Executor (“Orefice”) filed her Answer on April 3, 2012. A citation by the Deputy Sheriff to Betsy Ignacio and Hartwell was issued on April 19, 2012, returnable on May 21, 2012. On the same day, Special Notice was issued to David Janvrin, Michael K. Murphy, and Deborah M. Murphy, returnable on May 21, 2012. Plaintiffs filed a Motion to Default All Parties Who Have Not Filed an Answer on August 7, 2012. On November 29, 2012, a citation by the Deputy Sheriff was issued to David Janvrin, returnable on December 31, 2012. A pre-trial conference was held on December 3, 2012. A site view and the trial at the Newburyport District Court were held on April 19, 2013. Orefice was the only Defendant to appear before the court. On October 30, 2013, this court allowed Plaintiff’s August 7, 2012 Motion to Default All Parties Who Have Not Filed an Answer, leaving Orefice as the sole Defendant at Trial. [Note 2] After Plaintiffs’ evidence, Orefice moved for a Directed Verdict, which was denied. Both parties filed their Post-Trial memorandum on July 8, 2013, and at that time the matter was taken under advisement.

Testimony at trial for Plaintiffs was given by Robert Smith (land surveyor) and Benjamin Siebecker (Plaintiff). Testimony for Orefice was given by Toni Orefice (Defendant). Twenty-two exhibits were submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. By deed dated September 26, 1986 and recorded with the Essex South District Registry of Deeds at Book 8535, Page 285 (“Plaintiff Deed”), Judy A. Small conveyed Parcels 1, 2, and 7 (Plaintiff Property) as shown on “Plan of Land in Amesbury, Mass. County of Essex As Surveyed For Germain & Laura E. Lapre” dated November 1971 and prepared by John J. Rose (the “1971 Plan”) to Plaintiffs as tenants by the entirety. Plaintiff Deed stated, “There is also granted herein all rights which the Grantor may have in the way running Easterly from Elm Street shown as ‘Private Way’ on said plan, subject to the rights of others to use same ‘Private Way.’” Plaintiff Property is also shown as Lot 1 (the “Barn Lot”) and Lot 2 (the “House Lot”) on “Perimeter Plan” prepared for Plaintiffs by Cammett Engineering (“Cammett”) dated July 17, 2006 (the “2006 Plan”). A portion of the Private Way is shown as Lots 3 and 4 on the 2006 Plan (the “Disputed Area”).

2. Orefice holds title to property known as 4 Glen Avenue, Amesbury, MA (“Orefice Property”). The Orefice Property is located on both Glen Avenue and Norwood Street. [Note 3] Orefice received the Orefice Property as devisee of her sister Elaine Orefice under will dated March 2, 2010. Elaine Orefice received the Orefice Property as devisee of her aunt Adele Saliba under will dated July 3, 1997. [Note 4] Adele Saliba received the Orefice Property by deed of James Pettine dated April 4, 1956, and recorded with the Registry at Book 4369, Page 589. James Pettine received the Orefice Property by deed from Melaree Grenon dated February 15, 1952, and recorded with the Registry at Book 3896, Page 143. Melaree Grenon received the Orefice Property as devisee of her husband Alexis J. Grennon. Alexis J. Grennon received the Orefice Property by deed of J. Wesley Patterson dated June 10, 1925, and recorded with the Registry at Book 2643, Page 534. J. Wesley Patterson received the Orefice Property by deed of Benjamin M. Collins (the “Patterson Deed”) dated March 17, 1911, and recorded with the Registry at Book 2100, Page 141. The Patterson Deed stated that the Orefice Property was granted “[t]ogether with the right to pass and repass over a private way forty feet wide as at present laid out through land formerly of the Estate of Moses Collins from Elm St. to Collins Court” (the “Easement”). The private way was shown on a Plan dated September 25, 1911 (the “1911 Plan”), and recorded with the Patterson Deed.

3. A portion of the Easement containing the Disputed Area is paved as shown on the 2006 Plan (approximately ten feet in width) from the intersection of Elm Street through a portion of Lots 1, 2, 3, and 4 (the “Driveway”). The balance of the Disputed Area as well as the portion of the Easement east of the Disputed Area, including Norwood Street as shown on the 1925 Plan, is covered with trees and grass and is impassable, neither being laid out nor staked as a way. Portions of this area are also steeply graded.

4. Since Plaintiffs purchased Plaintiff Property in 1986, they have used the Disputed Area on a regular basis and treated it as their driveway and yard. They have mowed the lawn of the Disputed Area seasonally on a weekly or biweekly basis. Plaintiffs have also seasonally plowed snow from the Driveway on Lot 3. They use Lot 3 as access from the House Lot to the Barn Lot. They have paved the Driveway several times, plow snow from it in the winter, and regularly drive and park on the Driveway. At the time Plaintiffs purchased Plaintiff Property, there was a dilapidated fence (the “Fence”) which extended from a fence post in the northeasterly corner of Lot 3 across Lot 3 to the easterly, northeasterly corner of Lot 2. Plaintiffs occasionally stand up the Fence and then it falls down again due to falling branches. [Note 5] Plaintiffs built a replacement fence, but this fence was only up for about five to six years, from approximately 1987 to 1991. There was also an electric fence in the same area that was taken down by Plaintiffs some time in the late 1980s, but nothing in the record indicates when the electric fence was erected. Plaintiffs have used the entirety of Lots 3 and 4 as a playground for their four children during the period of 1990-2008. This includes sledding from the top of the hill of Lot 2 across Lot 3 to the bottom of Lot 1. From 1990-2000 a swing set and a sand box were located on the flatter area of Lot 3, directly uphill from the barn on Lot 1. The play yard, where the swing set and sandbox were located, was across the entire lawn area of Lot 3 and Lot 4 and was fenced in from approximately 1990 to 2000, with this fence extending from the barn on Lot 1 across Lot 3 to the bottom of the hill of Lot 2 and then back across Lot 3 to the barn on Lot 1. From 1990-2008 there was a basketball court with two basketball hoops, which Plaintiffs’ children played with approximately three to five days a week, located at the easterly end of the Driveway in Lot 3. There is a paved parking area on Lot 3 at the easterly end of the Driveway. Plaintiffs have continuously parked at least two cars on this paved area since they purchased Plaintiff Property. When Plaintiffs have company, they frequently park on the grass of Lot 3 beyond the Driveway. Plaintiffs have a private septic system with a tank in the southwest corner of Lot 3 about four to eight feet from their house on Lot 2. The leach field of the septic system runs approximately northerly down the length of the dividing line of Lots 3 and 4 and extends out on both sides until it meets the Driveway, which is evident by slight depressions in the lawn. Plaintiffs routinely have the septic system pumped (every three to six years). From the mid-1990s to the present day, Plaintiffs have had a garden, including shrubs, extending from approximately the end of the Driveway on the steeper slope of Lot 3 to about the middle of the barn of Lot 1. Beyond this area on Lot 3, from the late 1980s for approximately five years, Plaintiffs had a strawberry garden. Plaintiffs installed a drainage pipe system from approximately 1988-1990 in the base of the slope of Lot 3 in front of the barn of Lot 1, going in an easterly direction for approximately fifty feet. This corrugated drainage pipe is dug approximately two feet down into the ground, embedded in sand and gravel, and wrapped in a filter fabric. The purpose of this drainage pipe is to lower the ground water so that the yard does not become flooded. Since the late 1980s, Plaintiffs pile debris, rubbish, and yard waste extending from the east end of Lot 2 northerly across the eastern end of the Disputed Area and extending down the hill. This pile is constant and has never disappeared.

5. Robert Smith (“Smith”), a licensed land surveyor, surveyed Lots 1-4 and created a plan titled “Limited Existing Conditions Plan” (the “2013 Plan”), dated January 15, 2013, and prepared by Cammett, shown on Chalk B, that depicted two possible vehicular paths over the Disputed Area. Vehicular path one, marked in red on the 2013 Plan, had a slope of 33% and vehicular path two, marked in green on the 2013 Plan, had a slope of 28%. The town of Amesbury has rules and regulations that establish that the slope of a road should not exceed 10-12%.

6. No evidence has been presented by either side that, in the approximate 100 year history of the Easement from the Patterson Deed in 1911 until Orefice filed her 2012 Answer in this case, Orefice or any predecessor in title to Orefice has ever used the Easement. Further, Orefice testified that to her knowledge, no person other than the Siebeckers has ever traveled along any portion of the Disputed Area. Orefice also testified that, at the time of trial, she was physically unable to use the Disputed Area as a means of pedestrian access to the Orefice Property due to the slope of the Easement and her physical condition.

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Plaintiffs are claiming title to the Disputed Area by adverse possession. [Note 6] Plaintiffs are also claiming that Orefice has abandoned the Easement and/or that they have extinguished any easement rights which Orefice may have in the Disputed Area as a result of the Patterson Deed. Orefice seeks to preserve an express right of way through the Disputed Area. [Note 7]. I shall address each issue in turn.

I. Adverse possession of Lots 3 and 4.

In Massachusetts, a party may obtain title to the land of another by demonstrating actual, open, notorious, exclusive, adverse, and nonpermissive use of the property for a period in excess of twenty years. Ryan v. Starvos, 348 Mass. 251 , 262 (1964). "Whether, in a particular case, these elements are sufficiently shown is essentially a question of fact." Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 156 (2011) (quoting Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961)). A party asserting its acquisition of title through adverse possession bears the burden of proving each of the necessary elements of such possession. Mendonca v. Cities Service Oil Co. of PA, 354 Mass. 323 , 327 (1968). If any required element is left in doubt, the claimant cannot prevail. Id.

A. Open and Notorious Use for Twenty Years

A party making a claim of adverse possession must demonstrate uninterrupted use of the disputed property for the minimum twenty year statutory period. Hewitt v. Peterson, 232 Mass. 92 , 94 (1925); G. L. c. 260, §§ 21, 22. "[S]poradic use" will fail to satisfy this requirement unless the acts are "sufficiently pervasive to amount to adverse possession." Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996). "The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put." LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 490 (1938). Use is generally deemed "open" so long as it is "without attempted concealment." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). "Notorious use" requires that the use be "sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Id.

Plaintiffs have demonstrated open and notorious use of both Lots 3 and 4 for more than twenty years. Plaintiffs argue that they use or have used the Disputed Area as follows: since purchasing Plaintiff Property in 1986, they have maintained lawns over Lots 3 and 4, through both mowing the lawns and plowing snow; likewise, since purchasing Plaintiff Property they have maintained a constant pile of debris and yard waste toward the east end of Lot 3; their septic system is located underneath the southwest corner of Lot 3; the septic system’s leach field runs along the dividing line of Lots 3 and 4 and extends out to both sides; they intermittently maintain the Fence, extending from the easterly, northeasterly corner of Lot 3 to the easterly, northeasterly corner of Lot 2, which was on the Disputed Area when they purchased Plaintiff Property; [Note 8] the play yard for their children was fenced in up to the bottom of the hill of Lot 2 and then back down to the Barn of Lot 1 so that it went completely across the Disputed Area from 1990-2000; their children played and sledded on the Disputed Area, where Plaintiffs had installed a swing set and a sandbox, which were used from 1990-2000, on the flatter area of Lot 3, directly uphill from the barn on Lot 1. Plaintiffs had installed a basketball hoop, which was used from 1990-2008, at the end of the Driveway; they built the Driveway on the westerly and southerly part of Lot 3 and northerly tip of Lot 4; from the mid-1990s to the present day, they have maintained a garden on a portion of Lot 3 in front of the barn; they installed a drain pipe [Note 9] from 1988-1990 over the base of the slope of Lot 3, which extends in an easterly direction about fifty feet; they routinely park their cars on the Driveway and left a car parked on the flat lawn of Lot 3 for about a year without moving it; and they have used the Disputed Area continuously as a path from their house to their barn. As a result of the foregoing, I find that Plaintiffs’ use of the Disputed Area has been open and notorious for at least twenty years.

B. Actual Use

In determining whether use is “actual” in a claim of title by adverse possession, “[a] judge must examine the nature of the occupancy in relation to the character of the land.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance, 301 Mass. at 491. Actual use need not manifest itself through some form of permanent structure, so long as the use is in a manner consistent with that of typical ownership. Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 (2008) (finding that mowing a lawn and maintaining a row of trees, if typical activities in normal ownership, may constitute actual use). Plaintiffs’ use of the Disputed Area, as described above, clearly indicates control and dominion over the premises and is in a manner consistent with the typical ownership of a driveway and yard, and thus I find that Plaintiffs’ use is an actual use of the Disputed Area.

C. Adverse, Nonpermissive Use of the Subject Property

“[P]ermissive use is inconsistent with adverse use.” Ryan, 348 Mass. at 263. “The essence of nonpermissive use is lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefitted from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id. A presumption of non-permissiveness exists where the use of the land is actual, open, and exclusive for a period of twenty years. Id. at 146. Benjamin testified that he never discussed the Disputed Area with any neighbors prior to filing this action, so he could not have been given permission relating to his use of the Disputed Area. As a result, I find that Plaintiffs’ use of the Disputed Area was adverse and nonpermissive.

D. Exclusive Use

Use of a property is “exclusive” when the party exercising its actual use excludes, “not only...[the] owner, but...all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass. App. Ct. at 557. “Acts of enclosure or cultivation are evidence of exclusive possession.” Id. (quoting Labounty v. Vickers, 352 Mass. 337 , 349 (1967)). Such acts are not necessary, however, so long as third parties are excluded in a manner similar to that which the owner would have excluded them. See id. Plaintiffs have obstructed much of the way through erecting several fences, play areas and cultivating gardens. Further, there is no indication in the facts that Orefice or anyone other than Plaintiffs have ever used the Disputed Area since Plaintiffs bought the property in 1986. As a result, I find that Plaintiffs’ use of the Disputed Area was exclusive. [Note 10]

As a result of the foregoing, I find that Plaintiffs have established adverse possession over the entire Disputed Area and as a result are treated as fee owners of the Disputed Area.

II. Abandonment/Extinguishment of the Easement.

Plaintiffs acquired title to the Disputed Area subject to Orefice’s deeded easement rights, if any. Plaintiffs contend that Orifice has abandoned her easement rights by acquiescing to Plaintiffs’ use of the Disputed Area as a driveway and private lawn space and by failing to assert her right to the Easement. Plaintiffs also contend that they have extinguished the Easement by adverse use.

A. Abandonment by Orifice

An easement or interest in land may be deemed abandoned if evidence shows an “intention [by the dominant estate] never again to make use of the easement in question.” The party asserting abandonment carries the burden of proof. New York Cent. R.R. Co. v. Swenson, 224 Mass. 88 , 92 (1916). Nonuse by itself does not prove abandonment. Cater v. Bednarek, 462 Mass. 523 , 528 (2012) (finding a valid easement in spite of zero evidence of use by dominant estate holder over the ninety-eight year existence of the easement).

Abandonment is a question of intent and can be proven only by acts indicating “a present intent to relinquish the easement or a purpose inconsistent with its further existence.” Dubinsky v. Cama, 261 Mass. 47 , 57 (1927) (quoting Parsons v. New York, N.H. & H.R. Co., 216 Mass. 269 , 272 (1913); Tonello v. Pilotte, 21 LCR 77 , 85 (2013) Although evidence of mere non-use of an easement, by itself, is insufficient to establish the intent of abandonment, nonuse coupled with the “failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.” 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158-59 (2009); see also Willets v. Langhaar, 212 Mass. 573 , 575 (1912).

Based on the foregoing case law, abandonment may be found based on a totality of three elements: 1) long-term nonuse, 2) acquiescence by the dominant estate to obstruction of the easement, 3) inconsistent use by the dominant estate. See e.g., Dubinsky, 261 Mass. at 57; Willets , 212 Mass. at 575; 107 Manor Ave. LLC, 74 Mass. App. Ct. at 158-59. When finding abandonment in this manner, courts consider both the extent of inconsistent acts and the duration of nonuse or acquiescence. Sullivan v. Dart, 78 Mass. App. Ct. 1120 (2011) (“The relevant cases finding abandonment due to failure to protest obstructions generally reflect [long] spans of acquiescence[.]”); Lund v. Cox, 281 Mass. 484 , 492-493 (“Physical obstructions on the servient tenement, rendering use of the easement impossible and...combined with the great length of time during which no objection has been made to their continuance nor effort made to remove them, are sufficient to raise the presumption that the right has been abandoned and has now ceased to exist.”); see, e.g., Sindler v. William M. Bailey Co., 348 Mass. 589 (1965) (finding abandonment of easement when bridge that was necessary for use of easement had disappeared, and dominant estate acquiesced in the construction of a chain link fence around disputed area, combined with for thirty-five year span of nonuse); Lund, 281 Mass. at 492-493 (finding abandonment when dominant estate neither objected to nor attempted to remove physical obstructions on the servient tenement that rendered use of the easement impossible over a thirty-seven year span). Courts may also find abandonment in long term nonuse and acquiescence to obstruction alongside a use by the dominant estate that is inconsistent with the purpose of the easement. See King v. Murphy, 140 Mass. 254 , 256 (1885) (finding abandonment where, in addition to nonuse by dominant estate and obstructing use by servient estate, dominant estate erected a fence obstructing use and constructed alternate access to lot); Lasell College, 32 Mass. App. Ct. at 391 (finding abandonment where, in addition to long term nonuse and acquiescence to adverse use of others, dominant estate erected obstructing fencing); 107 Manor Avenue, LLC, 74 Mass. App. Ct. at 158–59 (finding abandonment where, in addition to nonuse and acquiescence to a fence across easement, dominant estate maintained easement area as a lawn in a manner that would indicate no intent to use as right of way).

Plaintiffs’ claim of abandonment must be analyzed in light of these cases. In support of Plaintiffs’ claim is the fact that Orifice and her predecessors in title have never asserted any rights to the Easement in the 101 years that it has existed, and that for much of the twenty-seven years Plaintiffs owned Plaintiff Property, their use has been open and notorious and has obstructed the Disputed Area. [Note 11] Further, Orefice’s admission that, when she or her predecessors in title would visit the Orefice Property, they would access it via Glen Avenue or Wood Avenue indicates a use of her land inconsistent with the purpose of the Easement over the Disputed Area. [Note 12] This court is heavily persuaded by the fact that the record indicates that the dominant estate never used the Easement in its entire 101 year existence and that the owners of the dominant estate used other nearby roads to access the Orefice Property. In no other case involving obstruction of an easement can the court find a situation where an easement has been in existence for so long and yet has not been used. [Note 13] Based on the facts in this case, given the failure by Orefice to object to Plaintiffs’ obstruction of the Easement, together with the failure of Orefice and her predecessors in title to use the Easement over it’s more than 100 year existance, I find that Orefice abandoned the Easement.

B. Extinguishment by Adverse Use

Plaintiffs also claim to have extinguished the Easement through adverse use. Unlike abandonment, which requires an overt act by the dominant estate, extinguishment by adverse use requires acts by the servient estate that are inconsistent with the continuance of the easement. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979) It is the burden of the party claiming extinguishment of an easement by adverse use to prove the evidence needed to sustain its claim. Id. In order to extinguish an existing easement, one must unequivocally obstruct the easement through adverse use, preventing the easement holder from exercising their rights. 28 Mass. Prac., Real Estate Law § 8.51 (4th Ed.). [Note 14] To extinguish an easement, the servient estate must take acts, which in substance and effect, have rendered the use of the easement practically impossible. New Eng. Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1930). Acts of the servient estate which render the use of only part of a right of way impossible, extinguish the easement only as to that part. Pappas v. Maxwell, 337 Mass. 552 , 557 (1958). “To establish a use adverse to the holder of an easement requires a use in a manner so inconsistent with the easement that it is extinguished after a lapse of twenty years.” Id. at 331 (quoting Lemieux, 7 Mass. App. Ct. at 422). To extinguish an easement, the servient estate must show that its use is irreconcilable with the use as a way, “openly, notoriously, adversely, and without interruption for more than twenty years.” Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987) (quoting Lemieux, 7 Mass. App. Ct. at 422-24).

The court in Shapiro v. Burton found that actions taken by the owners of the servient estate were so inconsistent with the rights of the dominant parcel that the scope of the easement was dramatically limited and effectively extinguished. 23 Mass. App. Ct. 327 , 330-333 (1987). The owner of the servient estate maintained hedges over the easement walkway, a fence with shrubs further blocking access, and the servient estate’s predecessor in title “vociferously opposed” any access to the easement walkway. Id. In Pappas, the SJC found that the presence of an outhouse and shrubs making access to the easement physically impossible was so inconsistent with the rights of the dominant estate that the easement was thereby extinguished. Pappas, 337 Mass. at 557. In Lemieux, the Appeals Court found that a twenty foot right of way had not been extinguished due to the existence of fences and permanent loading platforms installed by the servient estate and his predecessor, which had been open and adverse for more than twenty years. Lemieux, 7 Mass. App. Ct. at 420. Actions taken by the servient estate did not meet the “required inconsistency [to extinguish the easement in its entirety] since [the servient estate] left the way available for use during the day by foot or vehicular traffic.” Id. at 423.

Plaintiffs claim that they have consistently used the Disputed Area as a private driveway and otherwise as an extension of their yard. As described in greater detail above, Plaintiffs maintained the Fence obstructing part of the lot from 1987 to 1991, used the entirety of the Disputed Area as a fenced in playground with swing set and sandbox from 1990 to 2000 (with the fenced in playground covering the entire width of Lot 3), used the area as a basketball court from 1990 to present day, parked up to four cars from time to time from 1986 through the beginning of litigation (with one car staying in the same place for as long as a year), maintained up to two gardens and some shrubs from the late 1980s to present day, installed a drainage system in 1990 that remains to present day, walked across, chopped down trees, piled debris, rubbish and yard waste, mowed grass, shoveled snow, and otherwise maintained the Disputed Area. Further, Plaintiffs used Lot 4 as a driveway from the time they purchased their house until present day and installed a septic system and leach field under both Lots 3 and 4. These actions are inconsistent with the existence of the Easement in the Disputed Area.

Orifice argues that Plaintiffs cannot show that they have completely obstructed the Easement. The evidence, however, shows that access over the Disputed Area has been blocked by fences, recreational facilities and rubbish for more than twenty years. In addition, Plaintiffs have allowed trees to obscure any vehicular path an outsider might take. [Note 15] Due to the growth of trees, the only two geometrically possible vehicular paths for access to the Orifice Property through the Disputed Area are shown on the 2013 Plan as having vertical slopes of 28% and 33%, each of which is more than two times the maximum allowed in construction of subdivision roads in Amesbury. [Note 16] Together with the obstructing use by Plaintiffs discussed above, the placement of trees along such a steep slope effectively obstructs the ability of anyone to use a vehicle to cross over the Disputed Area.

Plaintiffs rely on Shaw v. Solari, 8 Mass. App. Ct. 151 , 155 (1979), which states that the plaintiff was not estopped from denying the existence of a way where “[t]he way . . . was neither in use nor staked out when [the plaintiff] took title to his land in 1921 and immediately cleared and used the strip.” There is no evidence that the Disputed Area was ever staked. Moreover, as discussed, supra, Plaintiffs argue that they have used the Disputed Area exclusively for more than twenty years and as a result have extinguished the Easement over the Disputed Area. Orifice argues that there is a higher standard for extinguishment, citing Shapiro, and that “to establish a use adverse to the holder of an easement requires a use ‘in a manner so inconsistent with the . . . easement that it [is] extinguish[ed] . . . after the lapse of twenty years.” Orifice also cites New Eng. Home v. Leader Fill’g Stations Corp., 276 Mass. at 159, claiming that to extinguish an easement, the servient estate must take acts which in substance and effect have rendered the use of the Easement practically impossible.

Plaintiffs have effectively proven that they have blocked Orefice from using the Disputed Area for more than twenty years and have generally held themselves out to be the true owners of the Disputed Area to the permanent exclusion of all others. The blocking of the Disputed Area for more than twenty years, together with the impossibility of vehicular use due to the topography of the Disputed Area, result in an extinguishment of the Disputed Area. As a result, I find that Plaintiffs have met the requirements of extinguishment of the Easement relative to the Disputed Area. As a result of the foregoing, I find that Plaintiffs have effectively extinguished Orefice’s rights in the Easement. [Note 17]

Judgment to enter accordingly.