MARGARET LAZARUS, RENNER WUNDERLICH, RALPH LANG and NANCY LANG v. JAMES H. KNOWLES and ANNE M. HOBDAY.

Margaret Lazarus, Renner Wunderlich, and Ralph and Nancy Lang (collectively, the “plaintiffs”) initiated the instant action, pursuant to G.L. c. 240, §§ 6-10, seeking to quiet title relative to a 15’ wide private right-of-way (the “Disputed Way”) abutting their respective properties in Eastham, Massachusetts. Located between the plaintiffs’ lots, the Disputed Way provides access from Corliss Way to the waters of Town Cove. James H. Knowles and Anne M. Hobday (collectively, the “defendants”) also reside in the Corliss Way neighborhood. They claim the right to use the Disputed Way in order to store and launch their dinghies, as well as to park their vehicles, all in order to access their boat moored in the waters of Town Cove.

On January 13, 2010, the plaintiffs filed a verified complaint seeking a declaration that they own, in fee simple, the 15’ wide Disputed Way by operation of the Derelict Fee Statute. See G.L. c. 183, § 58. Further, the plaintiffs sought a declaration that the defendants lack ownership or easement rights in the Disputed Way. They requested a permanent injunction to prevent the defendants “from trespassing or otherwise entering upon the [Disputed] Way.” [Note 1]

The defendants have filed an answer and verified counterclaims seeking three distinct declarations under G.L. c. 231A. Counterclaim I, along with the plaintiffs’ sole count, were disposed of in accordance with this court’s previous summary judgment order of January 19, 2012. Counterclaim I asserted that the defendants possessed certain deeded rights in the Disputed Way. [Note 2] This court, however, concluded that the plaintiffs own a fee interest to the centerline of the 15’ Disputed Way to the extent that it abuts their respective properties. This court concluded, as well, that the defendants possess no ownership or express easement rights in the Disputed Way. [Note 3]

The summary judgment order—incorporated herein by reference—left Counterclaims II and III for trial. By way of Counterclaim II, the defendants allege that they “and their predecessors-in-title have used the [Disputed] Way under a claim of right for a period in excess of twenty years, continuously, openly, notoriously, adversely, without interruption and without permission.” [Note 4] Specifically, the defendants assert that they “have passed and repassed over the [Disputed] Way, on foot and by vehicle, to and from the Town Cove for well over twenty years.” Moreover, the defendants argue they “have parked their cars in the Way, launched their dinghies from the Way, stored their dinghies in the layout of the Way, and anchored their moorings offshore at the terminus of the Way for a period in excess of twenty years.” [Note 5] Alternatively, Counterclaim III avers that the defendants “have acquired easement interests in the [Disputed] Way by estoppel based on conduct, deed description, and by plan reference.” [Note 6] The plaintiffs deny that the defendants have any rights in the Disputed Way, prescriptive or otherwise.

For the reasons that follow, this court concludes after trial that the defendants have successfully demonstrated that their father and Anne M. Hobday’s predecessor-in- title, James P. Knowles, acquired a prescriptive easement over the Disputed Way by the late 1970s. These prescriptive rights are appurtenant to the home at 15 Corliss Way and therefore benefit the current owner, Anne Hobday, in her use and enjoyment of the property.

BACKGROUND

A four-day trial was held on June 10-12, 2013 and July 10, 2013, at which time a stenographer was sworn to take the evidence of the following witnesses: James H. Knowles, Anne Hobday, Peter Howerton, Thomas Hawko, Georgia Hawko, Ed Hobday, Margaret Lazarus, Ralph Lang, and Nancy Lang. Nineteen exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal. Proposed findings of fact were submitted by the defendants and are incorporated herein to the extent that they are consistent with this decision. They are otherwise denied.

On all the credible testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:

(1) Ralph and Nancy Lang (plaintiffs/“Langs”) own the property known and numbered as 275 Corliss Way, Eastham, Massachusetts (the “Lang House”). [Note 7]

(2) At the time of trial, Margaret Lazarus (plaintiff/“Ms. Lazarus”) and Renner Wunderlich (plaintiff/“Mr. Wunderlich”) owned the property known and numbered as 285 Corliss Way, in Eastham, Massachusetts (the “Mead House”). [Note 8] They sold the property, post-trial, to a third-party in August 2013.

(3) The 15’ wide Disputed Way abuts the plaintiffs’ properties and provides access from Corliss Way to the waters of Town Cove. [Note 9] The plaintiffs’ properties are located on opposite sides of the private Disputed Way. [Note 10] As a consequence, the plaintiffs each own to the centerline thereof. [Note 11] The said Disputed Way is a grassy way with split-rail fences on both sides, with tire-tracks extending almost its entire length. [Note 12] At the time of trial, a bench stood at the end of the Disputed Way, though it has since been replaced with large boulders. Beyond the boulders, there are, as depicted in photographic trial exhibits, 3-4 concrete steps leading from the Disputed Way and stone revetment, to a marshy bank and the waters of Town Cove. [Note 13] [Note 14] The revetment was constructed sometime between 1965 and 1967. [Note 15]

(4) Anne Hobday (defendant/”Anne Hobday”) and her husband, Ed Hobday, own the property known and numbered as 15 Corliss Way, Eastham, Massachusetts (“15 Corliss Way”). [Note 16]

(5) James H. Hobday (defendant/“Jim Junior”), brother of Anne Hobday, currently resides at 85 Yankee Drive, Brewster, Massachusetts. [Note 17] He previously released his rights in 15 Corliss Way to Anne Hobday.

(6) James P. Knowles (“Jimmy”), the defendants’ father and Anne Hobday’s predecessor-in-interest, owned 15 Corliss Way and lived there year-round from 1938 until his death in 2005. [Note 18] Both Jim Junior and Anne Hobday grew up at the 15 Corliss Way property and lived there year-round until they each left for college in 1958 and 1961, respectively.

The Knowles Family’s Original Access to Town Cove

(7) In 1938, Warren R. Corliss and Lois B. Corliss deeded Parcel B (present- day 15 Corliss Way) to Jimmy, along with a deeded right to use for his lifetime, an 18’ wide right of way to access Town Cove. [Note 19] As shown on a plan of land entitled “Plan of Land in Eastham, Mass., Property of Warren R. Corliss et al,” dated August 2, 1938 and recorded at the Barnstable County Registry of Deeds in Book 58, Page 37 (the “1938 Plan”), the 18’ wide right of way continues across Parcels A, D, and land identified as “Warren R. Corliss and Lois B. Corliss” (the Corliss Property”) in a “southeasterly direction to the Town Cove.” [Note 20]

(8) Jimmy was an avid fisherman and kept a skiff moored at the end of the 18’ wide right of way, which he used to go fishing, quahogging, and clamming. [Note 21] The defendants testified that to reach the skiff, they and their father would drive down the 18’ wide right of way to where it intersects with the Corliss Property, park the car, and then walk the rest of the way to Town Cove. [Note 22] Jimmy frequently went fishing and often brought guests with him. [Note 23] He ate some of what he caught and in later years he sold some, as well.

(9) At this time, the Corliss home stood in the middle of the Corliss Property. [Note 24] Driving down the 18’ wide right of way and taking a right turn where it intersected with the Corliss property, there was a dirt driveway leading down to a three-car garage. Beyond the garage, there was another dirt road that branched off slightly to the right and continued downhill to a Barn at the base of the Corliss property. [Note 25] The Barn was located closer to Town Cove, near the edge of the Disputed Way. [Note 26]

The 1952 Subdivision Plan

(10) By deed dated, June 17, 1952, Jimmy released to the Corlisses the last 175’ (extending westerly from the Town Cove) of the 18’ wide right of way. [Note 27] In exchange, on the following day, June 18, 1952, the Corlisses granted Jimmy a new, express right of way by virtue of the following language:

[T]he right to use, for the term of his natural life, in common with all others now or hereafter entitled thereto, a right of way over Corliss Way in said Eastham on a plan to be recorded with Barnstable County Registry of Deeds, a distance of four hundred eighty-five feet (485) from the right of way the use whereof was granted to him in [the 1938 Parcel B deed] . . . to a ten (10) foot right of way leading from said Corliss Way in a southeasterly direction to the Town Cove, and the use, for foot passage only, of said ten (10) foot way from said Corliss Way to the Town Cove. [Note 28]

(11) Thereafter, a subdivision plan entitled “Plan of Land in Eastham, Mass., as subdivided by Warren R. Corliss” was recorded on June 23, 1952 at the Barnstable County Registry of Deeds in Book 104, 119 (the “1952 Plan”). [Note 29]

(12) On the 1952 Plan, the 18’ wide right of way is shortened—it extends only a few hundred yards beyond 15 Corliss Way and then merges into a new subdivision road called “Corliss Way.” [Note 30] The last 175’ feet of the 18’ wide ride of way is now depicted as part of Lot 1 of the subdivision. [Note 31]

(13) The Corliss house and structures, including the Barn, are depicted on the 1952 Plan. The new “Corliss Way,” as shown on the 1952 Plan, includes a portion of the original 18’ wide right of way and follows the curve of the Corliss driveway to the south. The Corliss driveway is shown as two parallel, dotted lines located within and then slightly above, the dotted lines depicting the layout of Corliss Way.

(14) The 1952 Plan clearly depicts the 15’ wide Disputed Way between Lots 2 (the Corliss Property) and 3. However, there is no 10’ wide right of way shown leading from Corliss Way to the Town Cove. [Note 32] Although there is insufficient evidence on the trial record to place the precise location of the 10’ wide right of way on the ground, this court is satisfied that Jimmy was neither granted nor otherwise possessed lifetime rights in the Disputed Way. [Note 33]

Further Subdivision of the Area Surrounding the Disputed Way

(15) In 1956, Warren Corliss recorded a revised subdivision plan that made only minor changes to the 1952 Plan (the “1956 Plan”). In approximately 1959 or 1960, Cecilia Mead, predecessor of Ms. Lazarus and Mr. Wunderlich, built the Mead House on Lot 3, as shown on the 1956 Plan. [Note 34]

(16) In or about 1959, Melville Richardson, Mrs. Lang’s uncle, moved into the former Corliss Property. In 1965, he subdivided the land and sold Lot E to the Kimballs, Mrs. Lang’s parents, who constructed the Lang house. [Note 35]

The Knowles Family’s First Use of the Disputed Way in the late 1950s

(17) Although there was conflicting testimony on point, this court credits the testimony of Jim Junior that his father’s use of the Disputed Way commenced in the late 1950s. [Note 36] On a trip home during his freshman year of college—in either the fall of 1958 or spring of 1959—Jim Junior drove down the 18’ wide right of way with his father to go clamming. [Note 37] When they approached the Corliss Property, Jimmy told Jim Junior to “go around to the right. We’re going this way now.” [Note 38] They turned right and proceeded down Corliss Way along the northern fork, parked at the Barn, and walked down the Disputed Way to the waters of Town Cove. [Note 39]

The Knowles Family’s Use of the Disputed Way in the late 1950s, 1960s, and 1970s

(18) This court further credits Jim Junior’s testimony that from that point on, he and his father always made a right turn down Corliss Way and went down to the Disputed Way to access the Town Cove. [Note 40] Anne Hobday recalls using the Disputed Way both by herself and with her father prior to leaving for college in 1961. [Note 41] Both defendants testified that their father would drive down to the Disputed Way, park his car, and go fishing. [Note 42] Jim Junior went fishing or clamming both by himself and with his father; Anne used the Disputed Way with her father, but also sometimes by herself for exercise, to look at the water, or to see what her father Jimmy had caught while fishing. [Note 43]

(19) Although there was conflicting testimony on point, this court finds more likely than not, that one could travel by foot over the Disputed Way in the late 1950s. [Note 44] In the mid-1960s, once the Disputed Way was filled in, Jimmy would drive down the Disputed Way and park near the water. [Note 45]

(20) From the late 1950s onward, Jimmy kept a skiff or dinghy at the end of the Disputed Way. [Note 46] Sometime between 1958 and 1962, he acquired a boat and began mooring it offshore at the end of the Disputed Way. He used the skiff or dinghy to access his boat. He kept a boat moored at that location until his death in 2005. [Note 47] Jimmy used the Disputed Way to access the Town Cove for fishing, clamming, quahogging, and did so almost year-round. [Note 48] He kept a dinghy on a trotline below the end of the Disputed Way from roughly March to late November each year.

(21) From 1958-62, Jim Junior returned home to 15 Corliss Way on college breaks and lived there during the summer months. From 1962-1965, he lived in Connecticut, but returned to 15 Corliss Way almost every weekend. He used the Disputed Way on nearly every visit—both by himself and with his father—to go clamming, look at the water, and check on the boat. [Note 49] In the late 1960s and 1970s, Jim Junior visited Corliss Way with less frequency, but still returned for weekend visits, holidays, and special occasions. During each visit, he observed his father using the Disputed Way in the same manner that Jimmy had always used it. [Note 50]

(22) Anne Hobday attended college from 1961-1963, but also returned to Corliss Way during vacations and summer break and used the Disputed Way as she had done prior to 1961. From 1963-1971, Anne Hobday visited 15 Corliss Way with her then-husband and children at least once a month and often every other weekend. [Note 51] This court credits her testimony that she used the Disputed Way on nearly every visit taking her children down to the water or going fishing with her father. [Note 52] From 1971-1977, Anne Hobday lived in Illinois, but returned home for 1-2 weeks every summer over the July 4th holiday. She and her family continued to use the Disputed Way in the same manner as they had in the 1960s. [Note 53] In 1977, she divorced and returned to Connecticut.

(23) Peter Howerton (“Mr. Howerton”) married Sandra Ormsby in 1961, and thereafter came to Corliss Way nearly every weekend in the 1960s to visit his in-laws, who lived in the subdivision. [Note 54] In the 1970s, he did not visit every weekend, but still made weekend visits throughout the spring, summer, fall, and on holidays. He used the Disputed Way on every visit to access the Town Cove to look at the water or go fishing.

(24) Throughout these years, Mr. Howerton observed Jimmy drive by the Ormsbys’ house nearly every day and saw him park his car at the end of the Disputed Way to go fishing or clamming. [Note 55] Both the Howertons and Ormsbys often went fishing with Jimmy. [Note 56] Mr. Howerton, when he went fishing, would park his car behind Jimmy’s on the Disputed Way. He also occasionally saw the defendants using the Disputed Way, both by themselves and with Jimmy, their father.

(25) Thomas Hawko (“Mr. Hawko”) currently resides at 80 Corliss Way and began coming to the subdivision in 1964, when his parents built his current home. [Note 57] He has visited at least once per month, year-round, since he first began coming to Corliss Way. [Note 58] On every visit, he accessed the Town Cove via the Disputed Way. He had a small rowboat and kayaks, which he launched from the end of the Disputed Way. [Note 59]

(26) Mr. Hawko testified as follows regarding Jimmy’s use of the way:

Q: . . . [R]eturning your focus to the house your parents built in 1964, on your trips down there in the ‘60s and ‘70s, would you see Jimmy [] down at the end of the way?

A: Absolutely, I would see Jimmy down there all the time.

Q: And what would he be going [sic]?

A: He would be going down to tend his boat, go[ing] fishing, go[ing] clamming. That was part of his livelihood, too.

Q: Did you ever see him drive down?

A: Absolutely.

Q: And what would he do with his car?

A: He’d leave it down at the end of the [Disputed] Way, right at the end; and when I went down, I’d park right behind him.

Q: Did he have a dinghy that he left on the shore there?

A: Yes, he did.

Q: Would he leave the car there while he went fishing?

A: Absolutely. I did, also. [Note 60]

(27) Nancy Lang (“Mrs. Lang”) began visiting Corliss Way in 1959 since she occasionally stayed with her uncle, Melville Richardson. She and Ralph Lang (“Mr. Lang”) begin visiting Corliss Way regularly in 1965 on weekends once her parents completed the Lang house. [Note 61] They both met Jimmy early on and became friends with him over the years. [Note 62] Mr. Lang often went clamming and fishing with Jimmy.

(28) Jimmy continued taking guests down the Disputed Way as he had done on the 18’ wide right of way. It was common practice for him to take guests out fishing and then return to 15 Corliss Way to photograph their catches. [Note 63] Both Mr. Howerton and Mr. Lang also observed Jimmy bring friends down the Disputed Way to go fishing with him over the years. [Note 64]

The Knowles Family’s Use of the Disputed Way from 1980-2005

(29) Credible testimony on the record supports a finding that Jimmy’s use of the Disputed Way remained relatively unchanged from the late 1950s until his death in 2005.

(30) In the 1980s, Mr. Howerton visited Corliss Way ten (10) weekends a year and on holidays; Jimmy’s use was consistent throughout the period of those visits. The Hawkos have continually visited Corliss Way since the early 1960s and their visits increased from 1980-90 once their children were grown. They continued to witness Jimmy use the Disputed Way in the same manner. [Note 65]

(31) Between 1987and 2000, Jim Junior visited Corliss Way only occasionally. [Note 66]

(32) From 1977 to 2009, Anne Hobday visited 15 Corliss Way at least once every month with her family and often bi-weekly during the summers. She and her children continued to use the Disputed Way in the same manner as they had previously. Anne Hobday also observed her father continue to use the Disputed Way the same way and for the same purposes he had since the late 1950s. [Note 67]

(33) Ed Hobday, Anne Hobday’s second husband, began visiting 15 Corliss Way with his spouse following their marriage in 1979. [Note 68] Ed Hobday used the Disputed Way to access the Town Cove on every visit—he went fishing and quahogging with Jimmy, walked down the Disputed Way together with Anne, or went to check on Jimmy’s boat. [Note 69] He occasionally went fishing by himself, but mostly did so with Jimmy. From roughly 1979-1985, Jimmy had a commercial quahog license. Ed Hobday would assist Jimmy and would then accompany him to the Chatham market to sell the quahogs. [Note 70]

(34) From the time he began visiting in 1979 until Jimmy’s death in 2005, Ed Hobday testified that Jimmy always kept a dinghy at the end of the Disputed Way. There was never a year where he did not witness Jimmy utilizing the Disputed Way.

(35) Margaret Lazarus (“Lazarus”) purchased the Mead home in 1995 with her husband, Renner Wunderlich (“Wunderlich”). [Note 71] She first met Jimmy in 1995, and since that time frequently saw him using the Disputed Way to access his dinghy in order to go fishing or clamming. [Note 72] She also witnessed Jimmy bring guests down on the Disputed Way. [Note 73] Margaret Lazarus did see the Hobdays occasionally on summer weekends on the Disputed Way with Jimmy, but never saw Jim Junior until his father’s funeral. [Note 74] In any event, Ms. Lazarus has no personal knowledge of use of the Disputed Way prior to 1995. [Note 75]

Permission to Use the Disputed Way

(36) The defendants never heard their father ask for or receive permission from anyone to use the Disputed Way, nor did the defendants ever ask for or receive permission to use the Disputed Way. [Note 76] Jim Junior did not realize that the way was not open to everyone until he saw a “court-type posting” placed on the Disputed Way in February 2004. [Note 77]

(37) Neither the Hawkos, nor Mr. Howerton ever heard Jimmy ask for or receive permission from anyone to use the Disputed Way. [Note 78] Both Mr. Howerton and Mr. Hawko testified that they too used the Disputed Way without permission. [Note 79]

(38) Ms. Lazarus, Mr. Lang, and Mrs. Lang all testified to alleged conversations in which Jimmy Senior acknowledged that his use of the Disputed Way was permissive. As a general matter, and for reasons discussed in greater detail infra, this court finds that testimony vague, contradictory, and unreliable. In any event, the earliest of those conversations was alleged to have taken place in 1981, well after the prescriptive rights at issue, had been secured.

(39) The Langs testified to an alleged conversation that occurred at 15 Corliss Way in 2003, in which Jimmy brought up the Disputed Way while the Langs and Hobdays were present. Anne Hobday remembers no such conversation. [Note 80]

Anne Hobday’s 2005 Letter

(40) Jimmy died in early July of 2005. Following a ceremony to spread his ashes in the Town Cove, Renner Wunderlich informed Ed Hobday that he and Anne Hobday had to remove their dinghy from the end of the Disputed Way. [Note 81]

(41) The Hobdays and Jim Junior have nonetheless continued to use the Disputed Way since Jimmy died.

(42) On July 26, 2005, Anne Hobday sent a letter to the plaintiffs requesting a meeting to discuss any concerns over the defendants’ use of the Disputed Way. [Note 82]

(43) Anne Hobday wrote the letter following a visit to Renner Wunderlich’s home after the memorial service. She visited him to discuss his request that the Hobdays remove the dinghy and to inform Renner that Ralph Lang previously told her “as long as we owned the [15 Corliss Way] house, there wouldn’t be a problem with us using the Disputed Way.” [Note 83] Renner informed her that Ralph Lang couldn’t make a decision like that on his own. [Note 84]

(44) A meeting occurred at 15 Corliss Way on or about August 13, 2005, at which time the plaintiffs requested that the defendants’ remove their dinghy from the end of the Disputed Way. Anne Hobday became upset and exited the meeting crying. [Note 85]

(45) The plaintiffs were concerned that the increased number of dinghies in the Disputed Way in recent years was eroding the bank. By way of example, Margaret Lazarus testified that:

A: When we first bought the property there was only one dinghy on a trotline belonging to Jimmy Knowles. . . .

Q: At some point after 1995 did the number of dinghies at the end of the way increase?

A: Yes, they did.

Q: Do you recall when that was?

A: Yes. Around 2005. 2004, yeah, and 2005.

Q: How many dinghies did you observe at the end of the way beginning in 2004, 2005 time period?

A: It began I think perhaps earlier three, and then it became four and then it became as many as five….

Q: Were there changes in the bank that you observed before or after that 2004, 2005 time period?

A: Primarily after, yes, after. [Note 86]

Similarly, Mr. Lang testified as follows:

Q: While Jimmy was alive, prior to 2005, did you have any concerns with his use of the way or the dinghies on the way?

A: No, I did not.

Q: Since Jimmy’s death in 2005 has there been a change in the use of the way?

A: Yes, there has.

Q: Can you describe what that change is?

A: They’ve put a lot of dinghies down there that are not on trot lines. They have worn the sludge area away. We used to have 35 feet out there [of sludgebank and marshland]. Now that’s only about three or four feet. [Note 87]

DISCUSSION

The defendants claim to have established a prescriptive easement over the Disputed Way for purposes of accessing the Town Cove, parking in the Disputed Way, and launching and storing their dinghies at its end. In asserting such rights, the defendants rely on: (a) the prior owner of 15 Corliss Way’s open, notorious, continuous, and adverse use for a period in excess of twenty years under G.L. c. 187, § 2; and (b) their own prescriptive use of the Disputed Way while living at and visiting 15 Corliss Way. Alternatively, they assert rights in the Disputed Way based on an easement by estoppel theory.

The plaintiffs, however, maintain that the defendants used the Disputed Way mostly with their father, whose use was permissive and therefore not adverse to the plaintiffs or their predecessors-in-title. Hence, argue the plaintiffs, the defendants’ adverse use did not commence until 2005. The primary issue in the case at bar concerns Jimmy’s longtime use of the Disputed Way and whether it was sufficient to create a prescriptive easement appurtenant to 15 Corliss Way prior to 2005. If so, this court need not address the defendants’ remaining arguments. The court will first address Jimmy’s use of the Disputed Way.

I. Prescriptive Easement

Pursuant to G.L. c. 187, § 2, “[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.” See also Ryan v. Stavros, 348 Mass. 251 , 263 (2009); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007) (stating that proof of a prescriptive easement requires use that is:

“(a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.”); Boston Seaman’s Friend Society, Inc. v. Rifkin Mgmt. Inc., 19 Mass. App. Ct. 248 , 251 (1985). The elements required to establish a prescriptive easement are identical to those of adverse possession, except that exclusivity need not be proven. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). The burden of demonstrating a prescriptive easement rests entirely on the claimant, see Ivons- Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964), and failure to prove any one element is fatal. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). Whether a claimant has met this burden is essentially a factual question for the judge. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009).

a. Twenty-Year Period

Under G. L. c. 187, § 2, one claiming a prescriptive easement must utilize the servient estate for a period of no less than twenty years. Ample evidence presented at trial supports a finding that Jimmy used the Disputed Way for a period well in excess of the required twenty (20) year period. This court credits the testimony of Jim Junior that the prescriptive period began in the late 1950s—in either the fall of 1958 or spring of 1959— when Jimmy began taking a right turn down Corliss Way, parked at the Barn, and walked the length of the Disputed Way to the Town Cove. Jimmy’s use of the Disputed Way for various purposes, including vehicular access, continued until his death in 2005. Even assuming the initial use began in the 1959, the defendants have amply demonstrated that Jimmy satisfied the twenty-year requirement by 1979, at the latest.

b. Continuous Use

The adverse use of the land must be continuous and uninterrupted for no less than twenty years. See G.L. c. 187, § 2. Continuity may be established by circumstantial evidence. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). Continuous use does not necessarily mean “a constant use” and “mere intermission is not interruption.” Id. However, use that is occasional or intermittent fails to satisfy the continuity requirement. See, e.g., Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007). Likewise, “sporadic use” will not be deemed continuous unless the claimant’s acts are “sufficiently pervasive.” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996).

Nonetheless, the “nature and extent of occupancy required to establish a right by [prescriptive easement] 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). Regular seasonal use or periodic use may be considered continuous, provided it is done fairly consistently. See Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) (seasonal absence of plaintiff and predecessors from their summer home was not fatal to finding of continuity necessary to establish prescriptive easement); Kershaw v. Zecchini, 342 Mass. 318 , 320-21 (1961) (finding of continuity in adverse possession case where circus performer put in boundary marks, cleared the land, and regularly used the area for his exercises and stunts); Lawrence v. Houghton, 296 Mass. 407 , 409 (1937) (noting use of road to summer residence for thirty-five years was sufficiently continuous to establish prescriptive easement); Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (pattern of regular use on weekends deemed continuous).

Here, Jimmy utilized the Disputed Way continuously from the late 1950s until his death in 2005. Such use was far more than “intermittent” or “sporadic.” See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007); Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996). Jimmy kept a dinghy at the end of the Disputed Way for 6-7 months each year for more than forty years. In the late 1950s or early 1960s, he began mooring a boat offshore of the Disputed Way, and maintained that boat mooring until his death. [Note 88] Additionally, he regularly used the Disputed Way to access the Town Cove for fishing, clamming, and quahogging—even maintaining a commercial quahog license for a time.

Both defendants testified to their father’s frequent use of the Disputed Way, and the credible testimony of Corliss Way neighbors corroborates that use. On his visits, Mr. Howerton observed Jimmy drive by the Ormsby home “nearly every day” and leave his car at the end of the Disputed Way to go fishing or clamming. [Note 89] Likewise, Mr. Hawko frequently observed Jimmy use the Disputed Way when tending to his boat, going fishing, or clamming. Even the plaintiffs acknowledge that Jimmy used the Disputed Way regularly.

Moreover, “[p]rescriptive uses need not be made personally by the owner of the claimed prescriptive servitude, but may be made by the tenants, customers, guests, and visitors of the claimant.” Restatement (Third) of Property, § 2.16 (2000). Jimmy often brought guests down the Disputed Way to go fishing with him. Additionally, this court credits the testimony of the Hobdays and Jim Junior that while visiting 15 Corliss Way they, on occasion, used the Disputed Way on their own. [Note 90] Hence, this court is satisfied that use of the Disputed Way by Jimmy and his invitees met the continuity requirement for a prescriptive easement under the statute.

c. Open, Notorious, and Adverse Use

To be open, the use “must be without attempted concealment.” White v. Hartigan, 464 Mass. 400 , 416 (2013). To be notorious, such use “must 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.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). The level of “open and notorious” use necessary for a prescriptive easement “varies with the character of the land.” Tinker v. Bessel, 213 Mass. 74 , 76 (1912). The purpose of this requirement is to afford a landowner “a fair chance at protecting himself.” See Foot v. Bauman, 333 Mass. 214 , 218 (1955). Actual knowledge is not required, see Boothroyd, 68 Mass. App. at 44, provided the landowner can be deemed to have constructive notice of the adverse use. See Lawrence v. Concord, 439 Mass. 416 , 421-22 (2003) (discussing this element in the context of adverse possession). Where a landowner has actual knowledge of adverse use of the property, the open and notorious element is satisfied. See White, 464 Mass. at 417.

The Disputed Way is clearly visible from both the Mead and Lang homes. [Note 91] As noted supra, Jimmy frequently used the Disputed Way to check on his boat, park his motor vehicle while out fishing, clamming, or quahogging, and store and launch his dinghy at its end. He conducted these activities openly and without attempted concealment. Even if the plaintiffs or their predecessors had never actually observed Jimmy using the Disputed Way—an unlikely occurrence given the close proximity of the plaintiffs’ homes—his use was nonetheless sufficiently open and notorious so as to put a landowner on notice that another was acting adversely to his rights. This court is satisfied on the trial record that the defendants have established that Jimmy’s use of the Disputed Way was open and notorious for purposes of G.L. c. 187, § 2.

d. Plaintiffs’ Claim of Permissive Use

The plaintiffs, for their part, allege that Jimmy’s use of the Disputed Way—and by extension the defendants’ use—was not adverse because Jimmy utilized it permissively. In Massachusetts, “[w]herever there has been 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 . . . unless controlled or explained.” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008); Truc v. Field, 269 Mass. 524 , 528-29 (1930). It is then “incumbent upon the owner of the land to prove that the use of the easement was under some license, indulgence, or special contract inconsistent with a claim of right by the other party.” White v. Chapin, 94 Mass. 516 , 519-20 (1866). A property owner can overcome this presumption, for example, by introducing evidence of express or implied permission. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). However, where a landowner fails to offer evidence explaining the use or showing control over the use, the presumption of adversity stands. See Ivons- Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (2000).

The plaintiffs maintain that they have successfully rebutted the presumption of adversity with evidence of express permission. They rely solely on several self-serving hearsay statements attributed to Jimmy prior to his death, in which he either sought or acknowledged permission to use the Disputed Way. [Note 92] In one instance, Mrs. Lang testified as to a recollection of a 1981 conversation between her mother and Jimmy, both now deceased. In Massachusetts, a statement of a decedent is admissible in a civil action “if the court finds that it was made in good faith and upon the personal knowledge of the declarant.” See G.L. c. 233, § 65; Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212 , 219 (1979) (noting applicability of G.L. c. 233, § 65 statutory hearsay exception to civil cases); see also Massachusetts Guide to Evidence, § 804(b)(5)(A).

Nonetheless, this court is not persuaded that credible evidence of permission exists on the trial record. The plaintiffs’ testimony proffered to explain Jimmy’s use of the Disputed Way was in the view of this court vague, inherently contradictory and plagued with issues of credibility. The Langs’ testified that Jimmy repeatedly sought permission to use the Disputed Way. [Note 93] However, they also recounted later conversations in which he discussed having lifetime rights. [Note 94] Though Jimmy did, in fact, possess lifetime rights in a 10’ wide right of way, the plaintiffs’ references to lifetime rights appear to arise in conjunction with the Disputed Way. [Note 95] Requests for permission would be wholly unnecessary if Jimmy previously had been afforded lifetime rights in the Disputed Way. [Note 96]

Further, Ms. Lazarus, in describing two conversations with Jimmy—during one of which she allegedly granted him permission—testified that he repeatedly told her that he and his family had given up “all rights to Town Cove.” [Note 97] The court finds this purported statement ambiguous at best and unlikely, in any event, to have any applicability to the Disputed Way. [Note 98] Moreover, such statements are not only at odds with the Langs’ testimony that Jimmy spoke of lifetime rights, but also conflict with documentary evidence appearing in the trial record. Although Jimmy did release a certain portion of the original 18’ right of way in 1952, he did not give up all rights to Town Cove. As evidenced by Exhibit 18, Jimmy possessed a lifetime right, for foot passage only, to a 10’ wide right of way leading from Corliss Way to the Town Cove—albeit in an uncertain location. [Note 99] This court, therefore, assigns her testimony no more that minimal weight in determining whether Jimmy had permission to use the Disputed Way. [Note 100] Yet other statements attributable to Jimmy appear to conflate his prescriptive use of the Disputed Way with express rights he possessed for a period of time in both the 18’ and 10’ wide rights of way to Town Cove.

Particularly in light of the presumption of adverse use, this court is also troubled by the vagueness of the statements attributed to Jimmy and the purported conversations in which they appear. It is true that, when determining their admissibility, “the declarations of the deceased . . . need not be reproduced in the exact words used by the declarant.” Bellamy v. Bellamy, 342 Mass. 534 , 536 (1961) (internal citations omitted). Nonetheless, the vague nature of the plaintiffs’ testimony weighs negatively on their credibility. For example, in the conversations in which Jimmy allegedly spoke of lifetime rights, Mrs. Lang testified that “he [Jimmy] said something about his rights, lifetime something” [Note 101] and that “Jim, the dad, brought up the subject that he only had lifetime rights. I don’t recall the entire conversation . . . .” [Note 102] Likewise, Mr. Lang made general, passing references to “rights” in describing Jimmy’s alleged statements. [Note 103] Further, when asked to describe where the two conversations took place, during which he allegedly granted Jimmy permission, Mr. Lang stated: “Just somewhere out fishing or clamming. I mean, again, it came up in conversation.” [Note 104] He could not provide additional details.

Although each of the Langs testified to conversations in 1981 and 1991 in which Jimmy allegedly was granted permission, such conversations merely reference a general “permission.” The record is devoid of anything more specific, such as duration of the permission granted—i.e. lifetime, seasonal, or permission revocable at will. [Note 105] Moreover, the plaintiffs paint a picture of a man who, although he allegedly had permission from a record owner as early as 1981, continually sought permission time and again to use the Disputed Way. It has been alleged that Jimmy sought permission from Ralph Lang to use the Disputed Way in 1981 and again in 1991. It is noteworthy, in this regard, that Ralph Lang did not become a record owner of the Lang House until 1993.

Finally, even if this court were to credit the plaintiffs’ testimony that Jimmy used the Disputed Way permissively, the earliest evidence of permission on the record is in 1981. This court has concluded however, that Jimmy acquired basic prescriptive rights in the Disputed Way by 1979. Such “after the fact” permission will not defeat a successful prescriptive easement claim. Rather, this court finds and rules that more likely than not, the plaintiffs and their predecessors, at best, impliedly acquiesced to Jimmy’s use of the Disputed Way until approximately 2004 or 2005 when Jimmy died. See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (“Implied acquiescence is not necessarily the same as permission.”). At or about that time, their concern for the increasing number of dinghies and erosion of the bank prompted their efforts to limit use of the Disputed Way by the defendants and other Corliss Way neighbors. [Note 106] For the same reasons noted supra, even if this court were to find that permission was discussed at meetings in mid-2000s, or that Anne Hobday’s 2005 letter constituted a request for permission, [Note 107] the requisite period of prescriptive use had long since passed.

For the foregoing reasons, this court concludes that the plaintiffs have failed to present credible, convincing evidence of permissive use. Consequently, the prescriptive use of the Disputed Way remains unexplained and is presumed to be adverse. [Note 108] Given that Jimmy’s use was open, notorious, continuous, and adverse for a period greater than twenty years, a prescriptive easement exists over the Disputed Way for accessing the Town Cove by foot or by automobile, parking an automobile in the Disputed Way, storing and launching a single dinghy at the end of the Disputed Way, below the concrete steps.

e. Appurtenance

“An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of land in his use of the land.” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996), citing Restatement of Property § 453 (1944). There is a “general presumption favoring appurtenant easements as distinguished from personal easements (easements in gross).” See Schwartzman, 41 Mass. App. Ct. at 223. Moreover, an easement may be appurtenant even though the dominant and servient estates are not adjoining. See Denardo v. Stanton, 74 Mass. App. Ct. 358 , 360-61, 363 (2009) (finding prescriptive easement over right of way even though dominant estate was one half-mile away); Jones v. Stevens, 276 Mass. 318 , 325 (1931) ( “[A] right of way may be appurtenant to land even though the servient tenement is not adjacent to the dominant [estate] . . . .” ). Appurtenant easements “run with the ownership of the land served.” Hamouda v. Harris, 66 Mass. App. Ct. 22 , 27 (2006) (internal citations omitted).

The prescriptive easement over the Disputed Way is appurtenant to 15 Corliss Way. The trial testimony indicates that the use of the Disputed Way benefited Jimmy in his use and enjoyment of 15 Corliss Way, even though located some distance from his home. See Denardo, 74 Mass. App. Ct. at 363. Jimmy, along with his guests, continuously used the Disputed Way to access the Town Cove from Corliss Way, and as a means to reach the dinghy, boat mooring, and tidal flats where Jimmy quahogged and clammed. See id. at 363-64; Garrity v. Sherin, 346 Mass. 180 , 182 (1963) (“For private easement it is required that the plaintiff prove ‘open, uninterrupted, and adverse [use] for a period of not less than twenty years’ by the claimant and his predecessors in title.”). The appurtenant easement benefits the current owners of 15 Corliss Way.

II. Defendants’ Other Arguments

The defendants additionally claim a prescriptive easement over the Disputed Way based on their own use, both while living year-round at 15 Corliss Way and in their later visits to the property. Having determined that Jimmy acquired a prescriptive easement appurtenant to 15 Corliss Way in the late 1970s, this court need not address the issue whether the defendants’ own use, apart from that of their father, supports a claim of prescriptive easement.

The defendants, in Counterclaim III, also assert rights in the Disputed Way by estoppel, “both by plan [reference] and by conduct.” [Note 109] Under estoppel by plan reference, where “land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor or those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.” Goldstein v. Beal, 317 Mass. 750 , 755 (1945). The 1957 Deed of Easement, which was the subject of this court’ssummary judgment order but not otherwise discussed herein, granted Jimmy a right of way “over Corliss Way as shown on the [1952 Plan] . . . .” [Note 110] The defendants aver that the 1952 Plan “clearly shows the Disputed Way as an extension of Corliss Way to the waters of Town Cove.” Having already determined that 15 Corliss Way benefits from an appurtenant easement by prescription, this court need not address the defendants’ easement by estoppel claims.

CONCLUSION

Predicated on the foregoing, this court concludes there is appurtenant to the real property at 15 Corliss Way, Eastham, Massachusetts, an easement of access by prescription to the waters of Town Cove. Said easement by prescription extends over the Disputed Way and includes (a) the right to maintain no more than a single trot line on the shore beyond the Disputed Way and below the steps for purposes of storing and launching a single dinghy and (b) the right to park no more than a single automobile on the Disputed Way for the sole purpose of accessing and utilizing that dinghy.

Judgment to enter accordingly.