Mickey and Cora Long and R. Susan Woods each own and rent out abutting properties on Russell Street (Route 9) in Hadley, Massachusetts. The Longs claim that they and their predecessors in title have so used portions of Ms. Woodss property that they have obtained title by adverse possession to a strip of land along their common boundary and to a portion of the driveway that encroaches upon the property. Based on the evidence at trial, the Longs have not established adverse possession to any part of Ms. Woodss property. They have, however, established a prescriptive easement to use the encroaching driveway for access to and egress from their property.
The plaintiff Mickey Long filed his verified complaint on January 5, 2012, naming as defendant R. Susan Woods. Ms. Woods filed her answer on March 2, 2010. The case management conference was held on May 3, 2010. After the retirement of the Hon. Charles W. Trombly, Jr., this case was reassigned to the Hon. Robert B. Foster on January 26, 2012. The plaintiffs motion to amend the complaint was allowed on April 10, 2012, and the Plaintiffs First Amended Complaint (complaint), naming Mickey Long and Cora Long as plaintiffs, was filed on April 11, 2012. Ms. Woods filed her answer to the complaint on April 23, 2012. The complaint asserts the following claims: Count I, Declaratory Judgment; Count II, Equitable Relief; Count III, Quiet Title and Remove Cloud on Title; Count IV, Petition to Establish Title; Count V, Easement (Alternative Theory); and Count VI, Trespass.
The pretrial conference was held on November 29, 2012. A view was taken on April 16, 2013. Trial was held on April 16, 2013 in Northampton, Massachusetts and April 17, 2013 in Boston, Massachusetts. The court heard testimony from Lester Garvin, Kenneth Crochiere, Michael Spanknebel, Mickey Long, Cora Long, and R. Susan Woods. Exhibits 1 through 50 were marked; the Parties Statement of Agreed Facts was marked as Exhibit 1. The Stipulation of the Parties Regarding Testimony was filed. The transcript of the deposition of Jeffrey R. Wood was filed. The Defendants Motion for Directed Finding was denied, and the Defendants Renewed Motion for Directed Finding was denied.
Defendant, R. Susan Woods, Request for Findings of Fact and Rulings of Law was filed on June 6, 2013. The Request for Findings of Fact and Rulings of Law by the Plaintiffs Mickey and Cora Long was filed on June 25, 2013. The court heard closing arguments on July 1, 2013, and took the matter under advisement. This Decision follows.
Findings of Fact
Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Mickey Long and Cora Long are husband and wife. They own the property at 68 Russell Street, Hadley, Massachusetts (Long Property). Mr. Long took title to the Long Property in 1990, by a deed from Jeffrey R. Wood dated November 30, 1990 and recorded in the Hampshire Registry of Deeds (registry) at Book 3652, Page 166. Mr. Long conveyed the Long Property to Ms. Long and himself as tenants by the entirety by a deed dated October 6, 2011 and recorded in the registry at Book 10706, Page 162 on November 2, 2011. Exhs. 1, 4, 39; Tr. I-91- 93.
2. R. Susan Woods owns the property at 70 Russell Street, Hadley, Massachusetts (Woods Property). Ms. Woods took title to the Woods Property by a deed dated April 2, 2005 and recorded in the registry at Book 8247, Page 238 on May 4, 2005. Exhs. 1, 3.
3. The Long Property and the Woods Property abut each other on the north side of Russell Street. Russell Street is also Route 9. Each property consists of a dwelling, with a large yard to the rear. The Long Property dwelling is a two-family house; both units are rented out. The Woods Property dwelling is a single-family house with multiple bedrooms that is also rented out. Exhs. 2, 13-20, 28-30, 36, 37, 41, 47, 48; Tr. I-135-136, 199-200; View.
4. A driveway is located between the two properties. In its current configuration, it is covered with bluestone. The driveway extends across the boundary between the Long Property and the Woods Property, but leads to the back of the Long Property. The width between the house on the Long Property and the property line between the Long and Woods Properties is between 8.2 and 8.3 feet. The width of the portion of the driveway on the Long Property between the house and the property line is less; between six and seven feet. The driveway extends for an equal distance onto the Woods Property. The driveway is wider at the entrance from Russell Street. There is a gas meter attached to the side of the house on the Long Property that prevents a car from coming any closer to the house. Exhs. 1, 2; Tr. I-121-122; View.
5. As of 1929, there was a cinder drive located on the Long Property, between the building on the Long Property and the building on the Woods Property. Exh. 1.
6. Lester Garvin is an image analyst, in the field of aerial photography analysis. He first took courses in aerial photo interpretation at the University of Massachusetts in 1953, directed to mapping forests and land use of the Commonwealth as a research project. Between 1956 and 1960, he served in the U.S. Navy, and in 1959-1960 was an instructor in photo interpretation at the Naval Intelligence School. After his discharge from the Navy, he spent 17 years with a company doing research and development of reconnaissance systems. For the last 25 years, he was served as an expert on the interpretation of aerial photographs in cases involving boundary disputes, adverse possession, grandfathered zoning, wetland inventory, and hazardous waste sites. Tr. I-23-27.
7. Mr. Garvin testified as to his analysis of two aerial photographs of the Long and Woods Properties. I credit his testimony with respect to the driveway as shown in the two photographs.
8. An aerial photograph dated April 20, 1971, shows the driveway located between the Long and Woods Properties. An aerial photograph dated April 14, 1991, also shows the driveway located between the Long and Woods Properties. The driveway shown in both photographs is in the same location as the driveway as of the date of trial. Exhs. 2, 5, 6, 11, 12; Tr. I-32, 34-38, 42-43, 166-168; View.
9. In 1991, the driveway consisted of earth, sand and gravel. Crushed stone was added to the driveway on several occasions between 2010 and 2012. Tr. I-178-180, 185.
10. The 1971 photograph does not show a fence between the Long and Woods Properties. While a fence is shown on the 1991 aerial photograph, there is no evidence of who installed that fence or when it was installed. Jeffrey R. Wood, the previous owner of the Long Property, does not recall a fence. Exhs. 11, 12; Tr. I-34, 47-48, 69, 102, 184; Wood Dep. 29-30.
11. Jeffrey R. Wood purchased the Long Property on July 2, 1984. At the time he purchased the Long Property, the driveway was in the same location it is now; it ran along the east side of the house and curved around to the back, as it does today. The driveway was gravel. Mr. Wood considered the driveway to be part of the Long Property; there was a driveway to the east of the house on the Woods Property that served that property. He was not aware that the driveway encroached upon the Woods Property. Exh. 39; Wood Dep. 11-12, 15-17, 21, 37, 55- 56.
12. Mr. Woods tenants at the Long Property used the driveway to access the parking area behind the house. Mr. Wood visited the Long Property every three months while he owned it. During those visits, he observed his tenants parking behind the house. Wood Dep. 27, 35, 37, 55-56.
13. Mr. Wood never had a written easement from the owners of the Woods Property to use the driveway. No one ever told him not to use the driveway, or give him permission to use the driveway. Wood Dep. 46-47.
14. In 1990 and 1991, at the time Mr. Long purchased the Long Property, there were remains of a wooden fence that were rotted and not in good shape, and portions of an old wire fence. Exh. 16; Tr. I-65-66, 69, 74-75, 79-81, 137-139, 150-153.
15. In 1991, at some time after Mr. Long purchased the Long Property, Michael Spanknebel used the driveway after being hired by Mr. Long to do work at the Property. Mr. Spanknebel plowed the driveway on behalf of Mr. and Ms. Long between 1991 and 1995. Tr. I- 64-65, 181.
16. Mr. and Ms. Long lived in Northampton at the time Mr. Long bought the Long Property, but then moved to the Property and lived there for two years. In 1993 Mr. Long moved to Boston to attend law school. Ms. Long continued to reside at the Long Property until 1995. After Mr. Long graduated law school, he and his wife lived in several different towns in Essex County. They rented the Long Property. Tr. I-77, 95, 107-108, 183.
17. During the time that he has owned the Long Property, Mr. Long has used and maintained the driveway in its current location. He has fixed the gravel and repaired pits. He has observed his tenants use the driveway. Tr. I-76, 90.
18. Ms. Long has acted as landlord and manager of the Long Property since it was purchased. At the time Mr. Long purchased the Long Property, the driveway was sand and gravel. Ms. Long had crushed stone added to the driveway in 2010 because tenants were complaining about potholes. Tr. I-135-136, 180, 185-186.
19. In 2005, when Ms. Woods purchased the Woods Property, the fence was further rotted, and brush was overgrown along the boundary between the Woods and Long Properties. Tr. I-199-202, 204-208, II-54; Exh. 41.
20. Wire fencing of different types and grades, including chicken wire, was located on the Woods Property but did not delineate any border between the Woods and Long Properties. Tr. I-202-203, II-68-69, 87-90.
21. Ms. Woods installed at least three metal fence posts on the Woods Property. Tr. I- 203; Exhs. 26, 27; View.
22. There are a several trees along the property line between the Woods and Long Properties. Exhs. 28, 29, 38, 41, 47; Tr. II-75; View.
23. Ms. Woods has passed over the driveway since she purchased the Woods Property in 2005, using the driveway during grass-growing season when the driveway connected to the Woods Property was filled with tenants cars. In 2007, Ms. Woods asked Ms. Long for permission to use the driveway to exit the Woods Property with her truck and trailer. Ms. Long granted the permission. Tr. I-157, 211-212.
24. In 2008, the Massachusetts Highway Department created a curb cut at the driveway, across its width along both the Long and Woods Properties, in connection with the widening of Russell Street. After the installation, Ms. Woods expressed her concerns about the curb cut to MHD. Exh. 22, Tr. II-78-79, 82-83, 90-92.
25. On September 23, 2008, Ms. Woods sent Mr. Long an email, in which she stated that she and Ms. Long had measured the property line between the two properties and discovered that the property line is in the middle of the driveway. In the email, Ms. Woods proposed that Mr. and Ms. Long rent from Ms. Woods the half of the driveway on the Woods Property. No such rental agreement was ever reached. Exhs. 33, 34.
26. In 2009, Ms. Woods had a survey of the Woods Property done (although Ms. Woods said in her testimony that she took this action in 2006, the evidence suggests, and I find, that she was mistaken, and that she had the survey done in 2009). The survey was done in response to a series of surveys done by her neighbors directly to the east and neighbors to the west of the Long Property. As a result of the survey, she found out that the boundary between the Long and Woods Properties ran down the center of the driveway at issue in this action. Tr. I-209- 210; Exh. 45.
27. On December 14, 2009, Ms. Woods sent a letter to Mr. and Ms. Long. The letter began: This is my openly hostile and clear written notice to you that you do not have my permission to use any portion of my land at 70 Russell Street in Hadley for your driveway, or for any other use, by you or your tenants, at 68 Russell Street in Hadley. The letter enclosed a survey of the driveway dated September 26, 3009. Ms. Woods went on to demand that Mr. and Ms. Long relocate the driveway from the Woods Property within 30 days. Exhs. 44, 45; Tr. I- 114-117, 211.
28. On March 1, 2010, Ms. Woods sent Mr. and Ms. Long a letter by certified mail. The letter described the area by which the driveway encroached upon the Woods Property, calling it the License Area. It then stated: This letter is to formally notify you that I hereby give you a revocable license to use and maintain the License Area as it is currently used by you. I do, however, specifically reserve the right, for myself and my successors in title, to revoke this license at any time in my discretion, or, in the discretion of my successors in title. Exh. 46; Tr. I-118-119.
29. On March 18, 2010, Ms. Woods executed a Notice to Prevent Acquisition of Easement (Notice). The Notice was posted on the Woods Property at March 22 through 27, 2010 by the Deputy Sheriff, and was recorded in the registry at Book 10146, Page 342 on or about April 13, 2010. Exh. 40; Tr. I-213-214.
30. On October 6, 2011, after this action had been filed, Mr. and Ms. Long each executed an affidavit in connection with a refinance of the Long Property. That affidavit states, in part, that no claims have been asserted by other parties as to said premises, and no disputes exists [sic] between deponent and others concerning the title to said boundary lines of the same nor as to the location of the improvements upon the said premises, or the adjoining premises.
That same day, Mr. and Ms. Long also execute an Affidavit Regarding Survey Matters (Refinance). That affidavit states, in part:
To the best of our knowledge, we certify that the improvements (house, garage, outbuildings, fences, etc.) on the subject property are within the boundary lines, easement lines and set back lines, if any, of said property, and that there are no encroachments (house, garage, outbuilding, fences, walkways, driveways, eaves, drains, etc.) or improvements on adjoining property onto the subject property, and that I know of no assertions being made by any adjoining property owner, nor by me against any adjoining property owner, as to the location of boundary lines or disputes as to occupancy of any portions of my property. (Use space below to explain any disputes).
Mr. and Ms. Long did not explain any disputes on the affidavit. Exhs. 31, 32; Tr. I-109-112.
31. On the same day that these affidavits were executed, Mr. Long conveyed the Long Property to Ms. Long and him as tenants by the entirety. Exh. 4; Tr. I-112-113.
32. Between 2006 and 2012, tenants of the Woods Property used the driveway on the Long Property. Sometime between June 1, 2008 and June 30, 2012, Ms. Woods told one of her tenants, Tyler Gorman, that the driveway between the Long and Woods Properties was shared property. Stipulation of the Parties Regarding Testimony; Tr. I-212-213, II-74.
33. Mr. and Ms. Long have never paid taxes or offered to pay taxes for the portion of the Woods Property to which they claim to have title. They never posted no trespassing signs on that portion of the Woods Property. Tr. I-108, 186, 214-215.
34. While there is evidence that the driveway between the Long Property and the Woods Property existed as of 1929, I cannot find as a fact that this driveway encroached upon the Woods Property before 1971.
35. While there is evidence that the driveway between the Long Property and the Woods Property encroached on the Woods Property as far back as 1971, I cannot find as a fact that the portion of the driveway that lies on the Woods Property as shown on Exhibit 2 was used openly, notoriously, adversely, exclusively, or continuously before July 2, 1984.
36. Mr. Wood, and his tenants acting on his authority, used the portion of the driveway that lies on the Woods Property as shown on Exhibit 2 for vehicular and pedestrian ingress and egress to and from the Long Property openly, notoriously, adversely, and continuously from July 2, 1984 to when Mr. Wood conveyed the Long Property to Mr. Long on November 30, 1990.
37. Mr. and Ms. Long, and their tenants acting on their authority, used the portion of the driveway that lies on the Woods Property as shown on Exhibit 2 for vehicular and pedestrian ingress and egress to and from the Long Property openly, notoriously, and continuously from November 30, 1990 to the date of the filing of this action, January 12, 2010.
38. Mr. and Ms. Long, and their tenants acting on their authority, used the portion of the driveway that lies on the Woods Property as shown on Exhibit 2 for vehicular and pedestrian ingress and egress to and from the Long Property adversely from November 30, 1990 to March 1, 2010.
39. I cannot find as a fact that Mr. Wood or Mr. and Ms. Long and their respective tenants used the portion of the driveway that lies on the Woods Property as shown on Exhibit 2 exclusively.
40. Some fencing was located on the Woods Property, on some portions of a line to the east of the property line between the Woods and Long Properties, at some time before Mr. Long took title to the Long Property. There is insufficient evidence, and I cannot find as a fact, that anyone used the area between the property line and the line along which portions of that fencing ran adversely, openly, notoriously, and exclusively for any continuous twenty year period prior to the filing of this action on January 12, 2010.
Conclusions of Law
The Longs first amended complaint has six counts. Count I is for a declaratory judgment that the Long Property includes the disputed land. Count II is for equitable relief, enjoining Ms. Woods from trespassing and interfering with the Longs rights. Count III is for quiet title and to remove a cloud on title. Count IV is a petition to establish title. Count V is for easement as an alternative theory. Count VI is for trespass. Based on the evidence and arguments at trial, the six counts of the first amended complaint are really three separate claims. Counts I, III, and IV are claims for adverse possession over both the portion of the driveway on the Woods Property as shown on Exhibit 2 (the Disputed Driveway) and the portion of the Woods Property between the property line and the location of the alleged fence (the Disputed Land). Count V is a claim of prescriptive easement over the Disputed Driveway. Counts II and VI are a claim for trespass both on the Disputed Driveway and the Disputed Land, and on the portion of the driveway on the Long Property. A plan showing the Long and Woods Properties, with the Disputed Driveway shown as a cross-hatched area, is attached hereto. Based on the findings of fact set forth above, I treat each claim in turn.
1. Adverse Possession. Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Whether the elements of a claim for adverse possession have been satisfied is a factual question. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 156 (2011). The Longs, as the parties claiming title by adverse possession, bear the burden of proving each of the elements of adverse possession. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 327 (1968).
The Longs have not established title by adverse possession over the Disputed Land. The evidence is insufficient to establish nonpermissive, actual, open, notorious, exclusive, and adverse use of the Disputed Land for a continuous twenty year period. In particular, while there is evidence that there was a fence along at least part of the line of the Disputed Land at some point in time, there is no evidence of the precise location of the fence, how much of the line it enclosed, and for what period it existed. The 1971 aerial photograph shows no fence, and Mr. Garvins testimony regarding a land use line was too uncertain to credit. Other evidence calls into question whether the fence actually served to delineate a boundary that enclosed the Disputed Land so that the owners of the Long Property used that land exclusively. For example, there is evidence that there was wire fencing in various parts of the Woods Property, not just in the area of the Disputed Land. Moreover, based on the view, there is a line of trees along the actual property line between the Long and Woods Property that delineates that boundary, but no fence. Finally, there was testimony that some of the metal stakes were installed by Ms. Woods, not by any predecessors to Mr. and Ms. Long. Other evidence of use of the Disputed Land is too vague to establish actual, open, and notorious use. In short, Mr. and Ms. Long have failed to prove use of the Disputed Land that was actual, open, and notorious for a continuous twenty-year period. Their adverse possession claim over the Disputed Land fails.
Mr. and Ms. Long also claim adverse possession over the Disputed Driveway. They have failed to prove that they and their predecessors used the Disputed Driveway exclusively for a continuous twenty year period. While the evidence suggests, as discussed below, that Mr. and Ms. Long and their predecessors were the only persons who used the Disputed Driveway as a driveway, the evidence is insufficient to establish that the owners and occupants of the Woods Property were excluded from the Disputed Driveway; that is, that they did not use or pass over the Disputed Driveway for other purposes and uses, or otherwise also use that area as part of the Woods Property. Because the Longs have not proved all the elements of adverse possession for either the Disputed Land or the Disputed Driveway, that claim fails. Counts I, III, and IV, the counts that state the adverse possession claim, are dismissed with prejudice.
2. Prescriptive Easement. The Longs claim a prescriptive easement over the Disputed Driveway to use that area as a driveway for access to and egress from the Long Property. 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, 348 Mass. at 263; Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Hayes v. Dorr, 20 LCR 181 , 195 (2012). 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). 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 (2011). Permission is not the same as acquiescence. Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). 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. 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, quoting Ivons-Nispel, 347 Mass. at 763. 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 , 519-520 (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, 342 Mass. at 320-321; 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.
Aerial photographs establish that the Disputed Driveway was in its present location between 1971 and 1991. Evidence of its use, however, begins on July 2, 1984, when Mr. Jeffrey Wood took title to the Long Property. His testimony, along with the photographic evidence as interpreted by Mr. Garvin, which I credit, establishes that he, his tenants and persons acting on his behalf used the Disputed Driveway for pedestrian and vehicular access and egress to the Long Property during the period that he owned the Property, i.e., July 2, 1984 to November 30, 1990. This use was open and notorious, as it was not hidden and was plain to the owners of the Woods Property, putting them on constructive notice of the use. The location of the traveled Disputed Driveway was open and clear; it has been in the same location over the period of its use and has been either gravel or bluestone over its entire length and width. The use was adverse, as Mr. Wood did not receive permission to use the Disputed Driveway, and there is no evidence that the owners of the Woods Propertyconsented to the use. The use was continuous, as evidenced by the continuing presence of the Disputed Driveway in its current location and by Mr. Woods testimony.
Mr. Woods use of the Disputed Driveway may be tacked to Mr. and Ms. Longs use of the Disputed Driveway beginning on November 30, 1990, when Mr. Long took title to the Long Property. The Longs are in privity with Mr. Wood as titleholders (first Mr. Long and then Mr. and Ms. Long together) of the Long Property. Mr. and Ms. Long are therefore obligated to establish their prescriptive use from November 30, 1990, to July 2, 2004, that date that marks a continuous twenty-year period from the start of Mr. Woods use of the Disputed Driveway. The testimony of Mr. Long, Ms. Long, and Mr. Spanknebel, along with the photographic evidence as interpreted by Mr. Garvin that the Disputed Driveway was in its current location, as ascertained by the view, in 1991, establishes that Mr. and Ms. Long, their tenants and persons acting on their behalf used the Disputed Driveway for pedestrian and vehicular access and egress to the Long Property continuously during the period from November 30, 1990 to sometime after July 2, 2004. This use was open and notorious, as it was not hidden and was plain to the owners of the Woods Property, putting them on constructive notice of the use. The use was adverse, as Mr. and Ms. Long did not receive permission to use the Disputed Driveway before July 2, 2004, and there is no evidence that the owners of the Woods Property consented to the use before July 2, 2004. Any actions taken by Ms. Woods to interrupt the adverse usepermission, posting, etc.were ineffective because the twenty-year prescription period was complete in July 2004, before she took title to the Woods Property on April 2, 2005. [Note 1]
The Longs have established a prescriptive easement, appurtenant to the Long Property, to pass over the Disputed Driveway for pedestrian and vehicular ingress to and egress from the Long Property. The area of the prescriptive easement extends only to the area that they and their predecessors actually used. Carson v. Brady, 329 Mass. 36 , 42 (1952). Therefore, the Longs prescriptive easement is limited to the cross-hatched area shown on the attached plan. Judgment on Count V shall enter in their favor, with a declaration to that effect.
3. Trespass. The Longs allege that Ms. Woods has trespassed on the Disputed Land, on the Disputed Driveway, and on the portion of the driveway on the Long Property. A trespass occurs when a person invades anothers interest in the exclusive possession of land without permission or other privilege. Amarals v. Cuppels, 64 Mass. App. Ct. 85 , 90 (2005), quoting Prosser & Keaton, Torts § 87, at 622 (5th ed. 1984) and Restatement (Second) of Torts § 821D comment d (1979); Monterosso v. Gaudette, 8 Mass. App. Ct. 93 , 99-100 (1979). A person in the actual occupation of land may maintain trespass against any person except the real owner, or the person having a right of possession. New England Box Co. v. C&T Constr. Co., 313 Mass. 696 , 707 (1943). As set forth above, Ms. Woods owns the fee in the Disputed Area and in the Disputed Driveway; the Longs have established only an easement over the Disputed Driveway, which does not divest Ms. Woods of her fee interest. As the owner of the servient estate, Ms. Woods has the right to use the Disputed Driveway for all purposes which are not inconsistent with the Longs use of their prescriptive easement. Merry v. Priest, 276 Mass. 592 , 600 (1931); see Holy Spirit Assn for the Unification of World Christianity, Inc. v. Posten, 18 LCR 169 , 173 (2010), affd, 80 Mass. App. Ct. 1102 (2011) (no trespass claim against defendants for parking on half of way in which they own fee) . The Longs cannot maintain a trespass action with respect to the Disputed Land or the Disputed Driveway.
Ms. Woods did drive over the portion of the driveway on the Long Property. She did so, however, with the permission of the Longs. That permission has been withdrawn. There was no evidence that Ms. Woods is currently trespassing on the Long driveway. There is, therefore, no need to enjoin Ms. Woodss use of the Long driveway; a declaration of the parties rights in the driveway is sufficient to protect the Longs interests. Judgment shall enter on Counts II and VI, the counts that state the trespass claim, declaring that Ms. Woods, her tenants, and her agents have no right to enter the Long Property, as shown on the plan attached hereto, without the consent of the Longs or successor owners, but do have the right to enter and use the Disputed Driveway in a manner that does not interfere with the use of the prescriptive easement appurtenant to the Long Property.
[Note 1] The affidavits that the Longs executed in 2011 do not negate the facts of their and their predecessors use of the Disputed Driveway.