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 courts 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 orderincorporated herein by referenceleft 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. Hobdays 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.
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 Hobdays 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 Familys 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 shortenedit 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. Langs uncle, moved into the former Corliss Property. In 1965, he subdivided the land and sold Lot E to the Kimballs, Mrs. Langs parents, who constructed the Lang house. [Note 35]
The Knowles Familys 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 fathers use of the Disputed Way commenced in the late 1950s. [Note 36] On a trip home during his freshman year of collegein either the fall of 1958 or spring of 1959Jim 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. Were 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 Familys Use of the Disputed Way in the late 1950s, 1960s, and 1970s
(18) This court further credits Jim Juniors 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 visitboth by himself and with his fatherto 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 Jimmys 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 Jimmys 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?
Q: And what would he do with his car?
A: Hed leave it down at the end of the [Disputed] Way, right at the end; and when I went down, Id 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 Familys Use of the Disputed Way from 1980-2005
(29) Credible testimony on the record supports a finding that Jimmys 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; Jimmys 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 Hobdays 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 visithe went fishing and quahogging with Jimmy, walked down the Disputed Way together with Anne, or went to check on Jimmys 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 Jimmys 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 fathers 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 Hobdays 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 Wunderlichs 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 wouldnt be a problem with us using the Disputed Way. [Note 83] Renner informed her that Ralph Lang couldnt 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 Jimmys 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: Theyve 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 thats only about three or four feet. [Note 87]
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 Ways 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 Jimmys 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 Jimmys 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 Seamans 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 1950sin 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. Jimmys 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 claimants 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 Natl 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 quahoggingeven maintaining a commercial quahog license for a time.
Both defendants testified to their fathers 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 Wayan unlikely occurrence given the close proximity of the plaintiffs homeshis 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 Jimmys 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 Jimmys use of the Disputed Wayand by extension the defendants usewas 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 Jimmys 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 Jimmyduring one of which she allegedly granted him permissiontestified 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 Covealbeit 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 dont recall the entire conversation . . . . [Note 102] Likewise, Mr. Lang made general, passing references to rights in describing Jimmys 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 grantedi.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 Jimmys 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 Hobdays 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 Jimmys 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.
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 courtssummary 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.
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.
[Note 1] Verified Complaint (Compl.), at 5.
[Note 2] Specifically, Counterclaim I alleged that: (1) the developer, Warren Corliss, retained a fee interest in the Disputed Way, which his heirs conveyed to James H. Knowles in 2008; and (2) that Anne M. Hobday held an appurtenant easement over the Disputed Way by virtue of the 1957 Deed of Easement. This court rejected both arguments. See Lazarus v. Knowles, 20 LCR 16 , 16, 21-22 (2012) (10 MISC 420255) (Grossman, J.).
[Note 3] See id. at 19-21.
[Note 4] Answer (Ans.) and Verified Counterclaims ¶ 15.
[Note 5] Id. ¶ 15.
[Note 6] Id. ¶ 19.
[Note 7] The Lang Property is shown as Lot E on a plan entitled Re-subdivision of Part of Lot 2 shown on plan filed in Plan Book 125, Page 137, Land in Eastham (and a revision of Lot D shown on Filed Plan dated August 1964), dated March 1965 and recorded with Barnstable County Registry of Deeds (the Registry) in Book 191, Page 99 (the 1965 Plan). See Ex. 10.
[Note 8] Tr. 607:10-19; 24 to 608:7. The Mead House is shown as Lot 3 on a plan entitled Plan of Land in Eastham Mass., as subdivided by Warren R. Corliss, dated June 1952 and recorded at the Registry on June 23, 1952. Ms. Lazarus and Mr. Wunderlich purchased the property from the estate of Cecilia Mead in 1995. Tr. 607:17-23.
[Note 9] See Exs. 4-6.
[Note 10] See Trial Exhibit 6.
[Note 11] See Lazarus v. Knowles, 20 LCR 16 , 19 (2012) (10 MISC 420255) (Grossman, J.).
[Note 12] See Exs. 8E, G, L, M, N; 9.
[Note 13] By Order of November 1, 2013, after trial, this court Denied the defendants request for Preliminary Injunction in which the defendants sought inter alia, an order directing the plaintiffs to remove [certain] obstructions and repair the demolished stairs [leading down to the water] . See in this connection, Shapiro v. Burton 23 Mass. App. Ct. 327 , 333 (1986) (concluding that the duty to maintain an easement as may be necessary for its exercise normally rests with the holder of the easement.)
[Note 14] See Exs. 8B-C, J; 9; 13C, E (bottom photo), G-I. The revetment and steps have apparently deteriorated to a significant degree. See Shapiro v. Burton, 23 Mass. App. Ct. 327 , 333 (1987)..
[Note 15] There was conflicting testimony on the year the revetment was built, but this court finds that more likely than not that construction was commenced in 1965 and the section in front of the Lang house was completed in 1967. Tr. 744:10-13; 572:5-7.
[Note 16] Tr. 49:19 to 50:8; 150:24 to 151:7. 15 Corliss Way is depicted as Parcel B 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. See Ex. 2; Tr. 23:16-19. Anne Hobday also has an address of 225 Presidents Way, Unit 104, St. Augustine, Florida, 32902. See Ans. and Verified Counterclaims ¶ 4. Anne Hobday testified that since 2009, she spends five (5) months per year 15 Corliss Way and the other seven (7) months per year at her home in Florida. Tr. 151:6-7.
[Note 17] Tr. 19:16-17.
[Note 18] Tr. 23:11-14; 24:8-11; Ex. 14C. At his death, Jimmy left the 15 Corliss Way property to his second wife, Genevieve Knowles (the defendants stepmother), Anne Hobday, and Jim Junior. Tr. 49:21-22. Subsequently, both Genevieve Knowles and Jim Junior released their rights of ownership in 15 Corliss Way to Anne Hobday. See Tr. 49:19 to 50:8.
[Note 19] Tr. 23:11-14; 24:8-11; Ex. 14C. This deed is dated August 27, 1938 and recorded at the Barnstable County Registry of Deeds in Book 543, Page 193 on September 7, 1938. See Ex. 14C. The Parcel B deed also granted Jimmy: (1) a right of way over Parcel A, as shown on the 1938 Plan, to the state Highway; and (2) a lifetime right to use the beach in front of the Corliss Property, below the mean high water mark. See id.
[Note 20] See Exs. 1; 14C.
[Note 21] Tr. 26:21 to 27:1; 39:1-2.
[Note 22] See Tr. 37:24 to 38:18; 153:13-17; 157:7 to 158:5. Jimmy moored his skiff at the northeastern-most corner shown on the 1938 plan; he kept onshore at the end of the 18 wide right of way. See Tr. 26:7-14.
[Note 23] Tr. 39:3-8. This court credits the testimony of Jim Junior that his father went clamming nearly every weekend in good weather and frequently went out fishing in the summer and fall months. Tr. 39:3-8. He also regularly brought guests down to go fishing with him. Tr. 158:6-11.
[Note 24] Tr. 29:19-23; Ex. 15 (historic photograph depicting Corliss home, driveway, and accessory structures). Both defendants testified to the structures and driveways on the Corliss Property. They grew up with Sandra Ormsby, the Corliss granddaughter and a neighbor of the defendants, and visited the Corliss Property with her as children on many occasions. See Tr. 33:13 to 35:12; 152:11-14.
[Note 25] See Tr. 32:13 to 33:10 (describing access to garage and Barn).
[Note 26] Tr. 30:13-15; 21-24; see also Ex. 15. As depicted on Exhibit 2, the Barn was located closer to the Town Cove than the other structures on the Corliss Property. However, it stood closer to the Corliss Way end of the Disputed Way that it was to the Town Cove end. See Ex. 2.
[Note 27] This deed was recorded at the Barnstable County Registry of Deeds in Book 814, Page 367 on June 23, 1952. See Ex. 14E; 17. Exhibits 14E and 17 are duplicates of the same document. For simplicity when referencing this document, this court will refer to it as Exhibit 17, rather than 14E, as there are twelve subparts of Exhibit 14. The relevant language of the deed states:
I, James P. Knowles, . . . RELEASE to the said Warren R. Corliss and Lois B. Corliss, husband and wife, all rights of way over that portion of said 18-foot right of way extending from the Town Cove in a Westerly direction a distance of one hundred seventy-five (175) feet, more or less, the most westerly boundary of the right of way hereby released being marked by a bound, and also the right to use in common with others the beach below mean high water mark in front of land of within grantees over the Easterly two hundred (200) feet thereof adjoining land now or formerly of Ethan Eldridge.
[Note 28] Exs. 14F; 18 (emphasis added). Exhibits 14F and 18 are duplicates of the same document. For simplicity when referencing this document, this court will refer to it as Ex. 18 rather than 14F, as there are twelve subparts of Ex. 14.
[Note 29] See Ex. 2.
[Note 30] See Ex. 2. The 18 wide right of way formerly extended all the way to the edge of the bluff. See Ex. 1.
[Note 31] By deed dated June 21, 1952, Warren R. Corliss and Lois B. Corliss deeded Lot 1 to Dorothy Bentley. See Ex. 14G. The Bentley deed is recorded in the Registry in Book 816, Page 265 on July 15, 1952.
[Note 32] See Ex. 2. There is, however, a 10 wide right of way leading from Corliss Way to the cranberry bogs of Jimmy and George Knowles. This court determined in its previous summary judgment order that that 10 wide right of way was appurtenant to the cranberry bogs, not Parcel B. See Lazarus v. Knowles, 20 LCR 16 , 21-22 (10 MISC 420255) (Grossman, J.).
[Note 33] The new 10 wide right of way, in which the Corlisses granted Jimmy lifetime rights to access the Town Cove, is described as being located 485 from the original 18 wide right of way. See Ex. 18. The parties, in their post-trial materials, make alternative arguments as to the possible location of Jimmys new right of way. The defendants note that the distance between the new terminus of the 18 wide right of way and the waters of Town Cove, when measured along the northerly boundary of Lot 1 on said [1952 Plan], is approximately 485. See Defs. Proposed Findings of Fact ¶ 31. However, the 485 distance is described in the deed as leading to a 10 wide right of way, which then leads from Corliss Way to the Town Cove. The defendants theory has the 485 feet leading from the end of the 18 wide right of way directly to the water. The plaintiffs, for their part, note that there is only one 10 wide right of way shown on the plan, and aver that although the exact location is unknown, it is likely that an extension of the 10 way that is shown is what was intended. See Pls/Defs. In Counterclaim Post Trial Memorandum, at 15. This too is unlikely as the 10 right of way shown on the 1952 plan is shown leading directly from Corliss Way to the cranberry bogs. 485 from the new end of the 18 right of way, when proceeding down the new Corliss Way, ends roughly around the boundary of the Corliss Property and Lot 1. See Ex. 2. It is likely that any 10 right of way that existed was located somewhere in that vicinity, leading from Corliss Way to the Town Cove. However, this court need not rule definitively on the location of the 10 wide right of way. It is sufficient, for purposes of this decision, that the 15 wide right of way was not the subject of that grant, nor does either party argue that it is. The Disputed Way is located well over 500 feet from the end of the 18 right of way and is described as 15 wide. This court is satisfied that, although Jimmy did possess lifetime rights in an unknown 10 wide right of way, he did not possess lifetime rights to the Disputed Way.
[Note 34] By deed dated August 25, 1955, Warren R. Corliss and Lois B. Corliss deeded Lot 3, which abuts the Disputed Way, on the 1952 Plan to Cecilia F. Mead. See Ex. 14H. The Mead deed was recorded at the Registry on August 25, 1955.
[Note 35] See Ex. 10; Tr. 563:20 to 564:1. The Lang Property is shown as Lot E on a plan entitled Resubdivision of Part of Lot 2 shown on plan filed in Plan Book 125, Page 137, Land in Eastham (and a revision of Lot D, shown on Plan dated August 1964), dated March 1965 and recorded with Barnstable County Registry of Deeds (the Registry) in Book 191, Page 99 (the 1965 Plan). See Ex. 10. The Kimballs built the Lang house in 1965.
[Note 36] Mrs. Lang, however, testified that when she first began coming to her uncle, Melville Richardsons, property in 1959, that Jimmy kept his boat above the point of land shown on Exhibit 5. She testified that Jimmy would either park at the location of the three-car garage and walk across the Corliss Property to his boat, or alternatively, drive down to park at the Barn and walk above the Barn across the Corliss Property, and out to his boat. Tr. 683:10 to 685:20; 686:6 to 688:24. Mrs. Lang further testified as follows:
Q: [S]o at some point did Jimmy also begin putting his boat around on the south side or on the other side of the point of land [the cove area closest to the Disputed Way] thats shown on Trial Exhibit 5?
A: Yes, at some point.
Q: Do you recall when that was?
A: Not exactly.
Q: Do you recall whether it was before or after the construction of the seawall or the revetment?
A: He [Melville Richardson] was close to finishing the revetment. . . . Q: Okay, all right. When was the first time you observed Jimmy having a dinghy at the end of the Disputed Way?
A: I dont recall.
Q: Was it after you moved to the house in 1965?
A: Im not sure. Tr. 689:14 to 690:15.
This court finds and rules that the revetment was finished in 1967. Mrs. Langs testimony that Jimmy did not put his boat in the water at the end of the Disputed Way until the revetment was nearly finished directly conflicts with the testimony of several other credible witnesses who testified to his use of the Disputed Way to reach his boat mooring, earlier in the 1960s. `````````````````````````````````````````````````````````````````````Moreover, her testimony on this point is vague, including answers such as I dont recall, Not exactly, and Im not sure. Lastly, this court finds that if Jimmy was able to access the Barn at the top of the Disputed Way by vehicle in the late 1950sas both Jim Junior and Mrs. Lang testified tohe more likely than not simply walked the length of the Disputed Way to the waters of Town Cove, as Jim Junior stated, rather than parking there and traversing the much longer distance across the Corliss Property, see Exs. 4,5, to reach the Town Cove.
[Note 37] Tr. 40:4-19.
[Note 38] Tr. 40:8-9.
[Note 39] See Tr. 45:3-14.
[Note 40] Tr. 46:13-19.
[Note 41] Tr. 158:17-24.
[Note 42] Tr. 45:9-14; 46:20 to 47:9; 158:17 to 159:18; 161:1-6; 162:18-19.
[Note 43] Tr. 162:15 to 163:3.
[Note 44] Both Jim Junior and Anne Hobday testified that they, and their father, parked at the Barn and walked down the Disputed Way to the Town Cove. This court credits that testimony. Both of the Langs, however, characterized the Disputed Way as marshy area until sometime in the mid-1960s. Mrs. Lang testified that when she first began coming to the property in 1959, the Disputed Way was not built yet and that it was just scrub and brush and marshland down there [the area of the Disputed Way beyond the Barn]. See Tr. 567: 13-19; 570:4-6. Likewise, Mr. Lang testified that the original two tire tracks . . . for car wheels. . . came down to the barn. That was it. Tr. 743:8-10, and that, there wasnt anything there. . . [n]ot that Id want to drive on. Tr. 754:1-5. Mr. Lang testified as follows regarding the state of the Disputed Way beyond the Barn in 1965:
Q: Can you describe for me what C [the Disputed Way area beyond the Barn] looked like when you first becamefirst began going down to the property in 1965?
A: That was just all sludge and swampy down through there [out to the water].
Q: Was that area passable?
A: Thats why they used to leave the cars up at the barn. Tr. 805:7-14.
However, when asked whether it was possible to walk the Disputed Way, Mr. Lang stated: It could be tough at times. It was muddy and like walking through a swamp almost. See Tr. 746:4-5. This court finds that although the Disputed Way may have been muddy and tough at times to walk through, the Langs testimony is not inconsistent with Jim Juniors testimony that in the early years he and his father began using the way, they parked at the Barn and walked the rest of the way down to the marsh. Moreover, the testimony of Peter Howerton also supports the defendants assertions. Following his marriage to Sandra Ormsby Howerton in 1961, Mr. Howerton frequently came to the Corliss Way subdivision to visit her parents, see Tr. 312:22-23; 313:2-15, and used the Disputed Way to access the waters of Town Cove. Tr. 314:21-4; 317:6-10. Mr. Howerton testified as follows about the condition of the Disputed Way prior to the construction of the revetment:
Q: When you got there [to the Disputed Way] and you went into the water, before the revetment was constructed, can you describe what you walked over to get to the water?
A: Walked down the banking and out onto the marsh.
Q: What were the physical characteristics of the banking? How would you describe it, if you recall? Was it steep?
A: Not too.
Q: After the revetment was constructed, did the bank still exist or was there something in its place?
A: The wall was there.
Q: The wall was there. And so how would you go from your car to the water after the wall was built.
A: Youd have to walk down the wall. Tr. 324:15 to 325:7 (emphasis added).
[Note 45] The Disputed Way was filled in as part of the construction of the Lang House. See Tr. 746:6-9. Exhibit 5 depicts Jimmys car at the end of the Disputed Way. See Tr. 61:07-21; 746:14-120. Mr. Lang estimates the photo was taken after 1967. Tr. 812:1-9.
[Note 46] Jim Junior testified that his father originally kept a skiff at the end of the Disputed Way until Jim Junior was 24. Jimmy then switched to a dinghy. Jim Junior described the difference between the two: When I use the word skiff, a skiff is more substantial than a dinghy and a skiff would be used in the Town Cove to go fishing, quahogging, clamming. The dinghy is primarily for transport to and from the moored boat or sometimes to and from the clamming flats. See Tr. 57:18-23. The type of boat is immaterialJimmy continually kept a small boat onshore at the bottom of the Disputed Way since the late 1950s.
[Note 47] Although 1-2 years prior to Jimmys death, the mooring permit for the boat was changed to Ed Hobdays name. Tr. 49:3-10. Ed Hobday continues to this day to keep a boat moored in the same location.
[Note 48] Jimmy would not use the Disputed Way during the extreme winter months, but otherwise utilized it almost year-round. See Tr. 161:11-14.
[Note 49] Jim Junior testified as follows:
Q: And in the 1960s, when you would come home [from Connecticut] to visit, did you use the way, this Disputed Way?
Q: How would you use it typically?
A: The first thing wed do is drive down the way. There was a boat down there and members of the family frequently would drive down, look at the boat, look at changes in the water, the environment and come back. So youre basically checking on the condition of the moored boat. That was done I cant recall a trip that I would come home that I would not go down [the Disputed Way] at least once over the weekend. I would also go down there to clam. Id.
[Note 50] Tr. 69:13-15.
[Note 51] Tr. 166:2-8; 169:11-14. Anne Hobday and her first husband, Ed Schneiderhan, lived in Wayland, Abington, Rockland, and Billerica during this time period. Anne Hobday was married to Schneiderhan from 1963-77.
[Note 52] Tr. 166:10 to 168:15. Exhibit 7R depicts Jimmy Senior and Ed Schneiderhan fishing.
[Note 53] See 170:7 to 172:2 (describing Anne Hobday and her familys use of the Disputed Way on their own and with Jimmy during their visits in 1971-77).
[Note 54] See Tr. 313:2-15. Mr. Howertons first visit to the subdivision was in 1955. He testified that he met Jimmy in the late 1950s. Once he married Sandra Ormsby, however, his visits to Corliss Way became much more frequent.
[Note 55] Tr. 318:7-23.
[Note 56] Tr. 318:24 to 319:9; 326:24 to 327:16. In Exhibit 7Q, Ralph Ormsby is shown with Jimmy Senior at 15 Corliss Way displaying a halibut they caught while fishing. The Ormsbys did not have their own Dinghy at the end of the Disputed Way.
[Note 57] Mr. Hawkos parents house was located at the corner of Twin Rock Road and Corliss Way. Mr. Hawko inherited this house from his parents fifteen years ago. Tr. 337:4-14.
[Note 58] Tr. 340:8-12; 365:7-12. Mr. Hawko testified as follows:
Q: [In the] 1970s, how often did you get down to the Eastham property?
A: The same as ever since my parents bought and built that house, we were on the average being down there at least once a month. . . . Q: . . . Its your testimony that every time you went down there, you went onto the disputed way, is that correct?
A: Yes, thats correct.
Tr. 370: 19-23; 371:8-11.
[Note 59] See Tr. 341:13-17; 342:4-5.
[Note 60] Tr. 343:10 to 344:7.
[Note 61] See Tr. 573:23 to 575:10.
[Note 62] Tr. 691:10-21; 711:13-14; 752:1-9.
[Note 63] Tr. 191:16-23. Anne Hobday testified to the following:
Q: . . . Was it a regular occurrence that people would go fishing or shellfishing and then return to your parents house
A: Yes. And then the photographs would be taken. Theyd go down, theyd fish. Theyd bring them [the fish] up and then proudly show them off. Everybody would take the picture and have the picture to show what they had done with my father at the shore.
See id. Exhibits 7N-X depict various pictures of guests at 15 Corliss Way displaying fish they caught while fishing with Jimmy. See also Tr. 187:11 to 189:18;191:16- 195:18 (summary of photos of various years depicting Jimmy and guests of his with their catches after fishing).
[Note 64] See 329:19-21: 330:11-18; 750:11-23; 751:10-14.
[Note 65] See Tr. 317:6 to 319:24.
[Note 66] See Tr. 106:24 to 108:21; 109:18 to 111:9.
[Note 67] Tr. 175:2-22.
[Note 68] Ed Hobday testified that he visited 15 Corliss Way with Anne Hobday consistently from 1979 until 2009, noting that they would come every other weekend during the summertime during this period. See 470:7 to 471:20.
[Note 69] Tr. 475:13 to 477:10; 478:11-17.
[Note 70] Tr. 478:1-10.
[Note 71] Tr. 607:14 to 608:5.
[Note 72] See Tr. 626:14-17.
[Note 73] Tr. 645:23 to 646:7; 647:9-11.
[Note 74] See Tr. 646:8 to 647:8.
[Note 75] Tr. 670:11 to 671:4.
[Note 76] Tr. 77:12-24; 175:14-22.
[Note 77] Margaret Lazarus and Renner Wunderlich posted a Notice to Prevent Acquisition of Easement in February 2004. See Ex. 12.
[Note 78] Tr. 320:1-9; 344:8-15; 409:5-11.
[Note 79] Tr. 318:1-6. Mr. Hawko never asked anyone for permission because he felt that he never needed anybodys permission to go down there and use it [the Disputed Way]. See Tr. 348:15-22.
[Note 80] Tr. 818:23-819:10. I have no recollection of that meeting. No meeting like that took place.
[Note 81] Tr. 502:1 to 504:8. Ed Hobday testified:
Q: Now, the conversation you had, first of all, with Renner, when did that conversation take place?
A: That conversation took place immediately after I had dropped off people from the boat from spreading Jimmys ashes in the cove, and then I stopped by to thank Renner for having brought a bell to toll while his ashes, while Jimmys ashes were being spread in the cove waters. . . . Q: And to the best of your recollection, what did Renner say to you and what did you say to him.
A: Well the conversation started, I told him I wanted to thank him for bringing that bell because I felt it added significantly to the service. And that was it. And then he said, By the way, you need to get your dinghy out of the cove by the end of the summer. And I believe I said to him words to the effect, You must be joking or Youre kidding or something like that. Tr. 502:1-9; 503:9-21.
Though Margaret Lazarus testified that she was with Renner all afternoon on the day of the ceremony and that no such conversation ever happened, this court credits Ed Hobdays testimony. Anne Hobdays letter, written long before this litigation commenced, tends to support the inference that such conversation occurred on the day of her fathers memorial service. In her letter, she writes the following statement: We were shocked to learn after returning from sprinkling our dads ashes that this offer was apparently no longer available to us. See Ex. 19.
[Note 82] See Tr. 270:10-17; Ex. 19. The Hobdays also sent the letter to Ray and Eileen Callanan, whose driveway abuts the Disputed Way. The Callanans did not attend the meeting and are not parties to this litigation.
[Note 83] Anne Hobday testified that this conversation occurred a year or two prior to her fathers death, but she could not remember how the topic came up between them. Tr. 535:3-24; 539:24 to 540:2. Ralph Lang denies ever discussing this with Anne Hobday. Tr. 797:18-21.
[Note 84] Tr. 540:11-13.
[Note 85] See 820:7-13.
[Note 86] See Tr. 667:3 to 668:13; 806:8 to 807:7.
[Note 87] Tr. 806:4-15. Mr. Lang also cited concerns about the increased use of the Disputed Way itself and a greater number of cars parked on the Disputed Way. See 806:22 to 806:14.
[Note 88] Although , again, Ed Hobday placed the boat mooring permit in his own name a year or two prior to Jimmys death.
[Note 89] See Tr. 318:7-23.
[Note 90] This court, however, does not rule on whether such use by the defendants, on their own, would satisfy a prescriptive easement claim under G.L. c. 187, § 2, but merely notes that as visitors of Jimmy, their use may be considered in determining continuous use for the purposes of the statute.
[Note 91] See Exs. 4, 5.
[Note 92] These alleged statements made by Jimmy prior to his death were allowed de bene at trial by this court, subject to a post-trial motion to strike. The defendants filed a motion to strike such statements on August 2, 2013. Having found that certain statements satisfied the requirements of G.L. c. 233, § 65, this court admitted those statements into evidence on November 12, 2013.
[Note 93] See Tr. 703:22 to 704:3; 711:16-24; 781:14-14; 782:8-12.
[Note 94] See Tr. 715:16-17; 718:15-21; 719:4-7; 722:12-21; 785:24 to 786:7; 787:5-9.
[Note 95] Indeed, plaintiffs counsel attempted, post-trial, to explain the plaintiffs inconsistent testimony as to permission and lifetime rights with reference to Exhibit 18the document granting Jimmy lifetime rights in the 10 wide right of way. See Pls./Defs. in Counterclaim Post Trial Memorandum, at 14. However, both Mr. and Mrs. Lang recounted these lifetime rights conversations with Jimmy following questions in which they were specifically asked to recollect conversations in which Jimmy mentioned the Disputed Way. For purposes of the following excerpts, it is important to note that the parties consistently referenced the Disputed Way as the way throughout the trial transcript. Mrs. Lang testified as follows:
Q: All right. After that neighborhood meeting, were there any other times that you recall Jimmy, Sr. discussing the way or rights in the way?
A: Yes. . . . Q: What is your best recollection of what Jimmy said at that meeting, what you said at the meeting, what Ralph said at the meeting, and what Anne Hobday said at the meeting? And Im deliberately leaving out Ed.
. . . [The court ruled on an objection in these omitted lines.]
A: Jim, the dad, brought up the subject that he only had lifetime rights. I dont recall the entire conversation, and rightfully
Q: Well, lets start there. You said he brought it up that he only had lifetime rights?
Q: Do you recall what he said specifically?
A: All I recall is he said that he only had lifetime rights to the cove, and at that moment Anne got very up--
Tr. 719:4-7; 720:17-21 722:12-21. Likewise, Mr. Lang testified in a similar fashion:
Q: Were you ever present when Jimmy Knowles discussed the way with either of his children?
Q: Can you tell me the first such occasion you remember?
A: The first occasion I remember is lets see Jimmy Knowles, the father, called us up at our house and asked us to come up to his house. . . . Q: What was said by Jimmy during that conversation?
A: He started to talk about his rights that would not exist when he passed away, and there would be no more rights down there for the family.
Q: And what, if anything, happened after he said that?
A: Anne broke up about it and went off into the bedroom, and Jimmy followed her. My wife and I left because it was a family matter. . . .
Tr. 785:24 to 786:7; 787:5-14.
[Note 96] Though as noted, supra, this court finds as a matter of fact on the trial record that Jimmy did not possess lifetime rights in the Disputed Way.
[Note 97] Ms. Lazarus recalled a conversation she had with Jimmy on the Disputed Way in 1995, shortly after she moved into the Mead House. She testified that Jimmy told her our family has signed off on all rights [to Town Cove] many, many years ago, see Tr. 621:5; 11-13, and further summarized his request for permission to use the Disputed Way in the following statement:
A: . . . And he said, But I am good friends with the Langs and itshe said Our family signed off on all these rights, but I am good friends with the Langs and I was a good friend of Cecilia Mead, hes an heir [of Meads] and it was okay with them that he use the way, and that everyone in this neighborhood was close and friendly and open, and he hoped that would be okay with us.
Tr. 623:18 to 624:1. Ms. Lazarus also testified to another conversation, several years later, in which Jimmy reiterated to her I have given up all rights, my family gave up all rights to Town Cove, and that he had signed off on all rights many years ago, in addition to several other similar statements about giving up all rights. See Tr. 633:22 to 634:1; 635:8-9; 637:5-8; 637:13-14.
[Note 98] The language indicating that certain rights were being given up by the Knowles, suggests express or granted rights rather than purely prescriptive rights of the sort here at issue.
[Note 99] See Ex. 18. There is no evidence in the trial record to indicate that Jimmy, at any point, released or gave up his lifetime rights in this 10 wide right of way.
[Note 100] Notwithstanding her repeated references to Jimmys giving up all rights in the Town Cove, this court also found other areas of Margaret Lazarus testimony not credible.
[Note 101] Tr. 718:17-18 (emphasis added).
[Note 102] Tr. 722:12-14.
[Note 103] See Tr. 787:5-9 (He [Jimmy] started to talk about his rights that would not exist when he passed away. . .); Tr. 788: 11-12 (And Jimmy and I [Mr. Lang] had been talking about permissive rights and rights. . . .).
[Note 104] Tr. 782:22-23.
[Note 105] By way of example of such generalities, Nancy Lang testified to the following conversation with Jimmy after her mother died in 1991. She stated:
Q: With respect to the way, whats your best recollection of what you said to him [Jimmy] and what he said to you?
A: I mentioned I hoped nothing would change.
Q: And you hoped nothing would change about what?
A: With him using the way, clamming.
Q: And what did he say?
A: Nothing would change.
[Note 106] Margaret Lazarus and Renner Wunderlich posted a notice to prevent acquisition of easement in 2004.
[Note 107] When asked why she felt it was necessary to write the letter, Anne Hobday stated:
Because we all lived in the same neighborhood and I hoped that we could all get along in peace and harmony and I would continue doing what Ive always done from living at the house and going to the shore with the dinghy and fishing. See Tr. 540:17-23. When asked whether she considered this letter to be asking for permission to use the Disputed Way, Anne Hobday testified: No. I didnt believe that I needed permission. I thought because we lived in the house, I could go down there and put our dinghy there and go out in the water. See Tr. 547:14-20. This court credits Anne Hobdays testimony that in writing the letter, she did not think that [she] was making some kind of legal statement about peoples rights, Tr. 556:6-8, but that she was attempting to create peace in the neighborhood, see Tr. 541:8-10; 15-17, and simply wanted everyone to get along. See Tr. 544:17-21.
[Note 108] This court credits the testimony of the Hawkos, the Hobdays, Mr. Howerton and Jim Junior that each used the Disputed Way without requesting or receiving permission from any of the fee owners. Such testimony, in this courts viewthough not decisive on the issue whether Jimmy used the Disputed Way permissivelylends support to the finding that Jimmy, too, likely used the Disputed Way without permission.
[Note 109] Defs. Post-Trial Brief with Proposed Rulings of Law, at 21.
[Note 110] See Ex. 14I. By deed dated July 31, 1953, but executed and notarized on July 31, 1957 and recorded on August 14, 1957, Jimmy and George D. Knowles released certain easement rights providing ingress and egress to their cranberry bogs, shown as Parcel C on the 1938 Plan. In exchange, in the same 1957 Deed, the Corlisses granted Jimmy and George Knowles [a] right of way over Corliss Way as shown on said  plan . . . and over a 10 Way over the southerly part of Lot 5 from said Corliss Way to [the cranberry bog].