MISC 13-476659

October 16, 2014

Plymouth, ss.



At issue in this case is the ownership and use of land located between contiguous beachfront residences in Hull. Plaintiff Judith Paige (Paige) owns the property at 261 Beach Avenue (sometimes referred to as the Paige Property) and Defendant Anna M. Berik (Berik) owns 259 Beach Avenue (sometimes referred to as the Berik Property). The two houses on the parties’ properties are separated by a strip of land which is approximately ten feet wide (Open Area). Paige claims ownership of the portion of the Open Area owned by Berik (Disputed Area) by way of adverse possession, arguing that she and her predecessors-in-title have used it as a driveway and to park vehicles and for access to the rear of the Paige Property for more than the requisite twenty-year period. Alternatively, Paige claims a prescriptive easement for parking in the Disputed Area. It is not possible to drive a vehicle over the Open Area without driving on both sides of the record boundary line.

After having her property surveyed, Berik erected a stone wall and picket fence along the property line, on or around May 2012. These structures prevent Paige from parking or driving within the Open Area between the two houses. Paige initiated this action on February 19, 2013, with a verified two-count complaint alleging adverse possession and alternatively a prescriptive easement. Berik filed an answer on April 1, 2013. A one-day trial was held on July 31, 2014, and the court viewed the properties in the presence of both parties’ counsel on August 14, 2014. The court heard testimony from Plaintiff Judith Paige; David J. Shapiro, the owner of 66 K Street in Hull, which intersects Beach Avenue; and Defendant Anna M. Berik. The parties submitted joint exhibits, including depositions of Lillian Blinder and her daughter, Marlene Clayton.

Based on the credible testimony, exhibits, stipulations and other evidence entered at trial, the reasonable inferences drawn from this evidence, and informed by the court’s observations at the view, the court finds the following facts:

261 Beach Avenue (Paige Property)

1. On or about March 2, 1945, Louis and Lillian Blinder purchased the Paige Property, by deed recorded with the Plymouth County Registry of Deeds in Book 1879, at Page 505. [Note 1] The Blinders used the Paige Property as a summer residence.

2. On or about May 8, 1998, Lillian Blinder sold the Paige Property to Gregory M. Davall by deed recorded in Book 16176, at Page 318.

3. On or about October 18, 2000, Gregory M. Davall sold the Paige Property to Plaintiff Paige, by deed recorded in Book 18980, at Page 101.

4. Paige is the current owner of the Paige Property and uses it as a summer residence. 259 Beach Avenue (Berik Property)

5. On or around December 17, 1943, Frances Struzziery and Anne Levine purchased the Berik Property by deed recorded in Book 1856, at Page 325.

6. On or about October 22, 1970, Anne Levine transferred title to the Berik Property to the “Anne B. Levine Trust”, by deed recorded in Book 4118, at Page 403.

7. On or around December 7, 1979, Plymouth Home National Bank, Trustee of the Anne B. Levine Trust, sold the Berik Property to Robert and Gloria Zanis, by deed recorded in Book 4765, at Page 211.

8. On or around June 9, 1995, Robert and Gloria Zanis sold the Berik Property to Jeffrey and Beth Gruber, by deed recorded in Book 13621, at Page 203.

9. On or around October 1, 2004, Jeffrey and Beth Gruber sold the Berik Property to Peter and Eileen McGinnis, by deed recorded in Book 29189, at Page 307.

10. After purchasing 259 Beach Avenue, Peter and Eileen McGinness demolished the then-existing house on the lot and built the house now owned by Berik.

11. On or around February 28, 2008, Berik purchased the Berik Property from Peter and Eileen McGinnis, by deed recorded in Book 35655, at Page 84.

12. Berik is the current owner of the Berik Property and uses it as a vacation residence at various times throughout the year.

13. Berik holds an exclusive easement over an approximately twelve-foot wide driveway located on the southerly line of her lot, between her house and property known as and numbered 73 K Street, (as shown on Ex. 7). This easement allows for the passing, repassing and parking of vehicles, and for pedestrian and bicycle access. This easement runs with the Berik Property in perpetuity.

Use Of The Disputed Area

14. 259 Beach Avenue and 261 Beach Avenue are adjacent properties, with 259 Beach Avenue located to the south. Both properties are located on the westerly side of Beach Avenue, and overlook Nantasket Beach and the Atlantic Ocean. There is no street parking on Beach Avenue in front of the properties.

15. The record boundaries of 259 and 261 Beach Avenue are shown on a plan entitled, “Plan of Land 261 Beach Avenue Hull, MA” prepared for Paige by J. Lowell Associates dated December 18, 2012 and revised December 21, 2012 (Plan). Ex.1

16. As shown on the Plan, the space between the houses at 259 and 261 Beach Avenue is approximately ten feet wide (Open Area). It extends 66.04 feet westerly from Beach Avenue and comprises approximately 639 square feet. Berik holds record title to approximately 246 square feet of the Open Area (Disputed Area), and Paige holds record title to approximately 391 square feet of the Open Area.

17. During the Blinder’s ownership of the Paige Property, from 1945 to 1998, they drove their vehicles over the Disputed Area and parked in the backyard. They did not park in the Disputed Area, and did not allow their guests or visitors to park there.

18. The Blinders were aware of the fact that the property boundary line bi-sects the Open Area between the parties’ houses.

19. Every summer during their ownership of the Paige Property, the Blinders paid to have gravel or small stones laid down in the Open Area, including within the Disputed Area. Louis Blinder also raked the Disputed Area during this time. The owners of the Berik Property did not contribute to the maintenance of the Disputed Area during the Blinders’ ownership.

20. The Blinders enjoyed close friendships with the Levines and the Zanis during their respective ownerships of the Berik Property. The Blinders, the Levines and the Zanis all regularly used the entire width of Open Area to walk from their respective backyards to the beach.

21. During their respective ownerships of the Berik Property, the Levines and the Zanis seldom passed over the Open Area with their vehicles. Occasionally, if they had enough guests or visitors parked so that they could not pass through the driveway located between 259 Beach Avenue and 73 K Street, they would pass through the Open Area. The Levines and Zanis never asked for permission from the Blinders to pass over the Open Area. The Levines and Zanis never used the Disputed Area for parking.

22. During Gregory Davall’s ownership of the Paige Property, from 1998 to 2000, he converted the backyard into a garden area and used the Disputed Area for parking.

23. The backyard of the Paige Property continues to be used as a garden and patio area by Paige.

24. From 2000 to 2012, Paige and her guests parked their cars in the Open Area, which can accommodate up to three cars, parked in a row.

25. Berik does not, and has never, used the Disputed Area for parking or to pass through to park in the rear portion of the Berik Property.

26. Paige does not park in her backyard and does not intend to park vehicles in her backyard.

27. In 2012, Berik constructed a concrete garden wall and a picket fence in the Disputed Area immediately next to her property’s boundary line with the Paige Property. These improvements narrow the width of the Disputed Area (and the Open Area) and Paige can no longer park any cars there, nor could she drive a car over the Open Area to the backyard of her property.

* * * * * *

I. Plaintiff Judith Paige Failed To Carry Her Burden Of Proof On Each And Every Element Of Adverse Possession

A party claiming title to land through adverse possession must establish proof of nonpermissive use that is “actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also G. L. c. 260, § 21. The adverse claimant carries the burden . . . , and must prove each and every element in order for the adverse possession claim to succeed. Lawrence, 439 Mass. at 421. The determination of “whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). In this action, while Paige established at trial use of the Disputed Area for a period in excess of twenty years, that use was neither exclusive nor adverse, and therefore her claim of adverse possession fails.

a. Paige Did Not Establish Exclusive Use Of The Disputed Area

To establish exclusivity, the claimant’s possession of the disputed property must be to the exclusion of the true owner. Exclusive use “must encompass a ‘disseisin’ of the record owner,” which includes “exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993) (holding that concurrent use of property prevented a finding of exclusive use and was fatal to the adverse possession claim). Even if a claimant satisfies all other elements, unless he excludes others from the property in the way that a true owner would, he will not satisfy the exclusivity element and his adverse possession claim will fail. Labounty v. Vickers, 352 Mass. 337 , 349 (1967); Bellis v. Bellis, 122 Mass. 414 , 417 (1877).

The evidence shows that Paige and her predecessors-in-title did not exclude all other parties from using the Disputed Area. Louis and Lillian Blinder and their neighbors at the Berik Property—the Levines and the Zanis—all walked through the Disputed Area to access the beach from their respective backyards. The Levines and the Zanis also occasionally drove over the Open Area with their vehicles when the number of guests parked in their backyard prevented them from using their driveway easement, and did so without seeking permission from the Blinders. Lillian Blinder knew that the property line ran down the middle of the Open Area, and it was her understanding that the she and her neighbors shared the Open Area for certain uses:

Q [Pl.’s counsel]. [I]s it your testimony today that your neighbors drove their vehicles and used this as their driveway, too?

A [Lillian Blinder]. No. No, only if their driveway had cars in it, so they used [the Open Area].

Q. So this was their driveway, too?

A. Yes.

Q. It was your driveway and your neighbor’s driveway?

A. Yes. And neither of us ever had a problem. Blinder Dep. 12: 2-18, July 31, 2013 (Blinder Dep.). [Note 2]

Q. How often did your neighbors use the driveway?

A. Never. Only, I told you, if they had visitors that they couldn’t get out, but they very seldom used that driveway, very seldom.

Blinder Dep. 15: 11-15.

Later in her deposition, Mrs. Blinder contradicts these statements, saying that her neighbors’ visitors “never used that driveway” and that she and her husband were “the only ones that used that driveway.” Blinder Dep. 18: 3, 5. It is possible that Mrs. Blinder became slightly confused and failed to distinguish questions regarding parking on the Disputed Area versus passing over the Disputed Area:

Q. When would [your neighbors] have visitors park in the driveway—

A. Visitors did not park in the driveway.

Q. I’m sorry, so when they had visitors come over, what did they do?

A. In the front of the house or on the land.

Q. Those are your visitors. Did your neighbors’ visitors ever park in that driveway, ever?

A. No.

Q. Did they ever—

A. No, it was never blocked up.

Q. Where would those visitors park their cars when visiting the neighbors?

A. Never. Her visitors never used that driveway.

Q. So I’m just trying to get some clarification. You said a moment ago that sometimes your neighbors’ visitors would come and use your driveway?

A. Never.

Q. So is it your testimony that—

A. They never used that driveway.

Q. So—

A. My husband and I were the only ones that used that driveway.

Q. [E]arlier when you testified that sometimes the neighbors’ visitors would come and use the driveway, that wasn’t—

A. I said they never used the driveway . . . . I told you, the family parked in front okay?

Blinder Dep. 17: 1-18: 24 (italics added).

After asking whether the neighbors’ visitors ever parked in the Disputed Area, to which Mrs. Blinder answered in the negative, Plaintiff’s counsel then asked about Mrs. Blinder’s prior statements that the neighbors “seldom” drove over the Disputed Area, but did so when they had too many guests in their backyard area. It is unclear whether Mrs. Blinder understood that Plaintiff’s counsel was referring to Mrs. Blinder’s prior statements regarding the neighbors’ use of passing over the Disputed Area, and not the use of parking immediately referenced before that question.

Regardless of this discrepancy, both Mrs. Blinder and her daughter, Marlene Clayton, consistently and clearly testified in depositions that, at a minimum, the owners of 261 Beach Avenue and 259 Beach Avenue all used the Disputed Area for pedestrian access to the beach. This testimony has not been contradicted. Paige claims title to the Disputed Area through adverse possession based on the twenty-year period from 1978 to 1998, a period of time in which the Blinders owned 261 Beach Avenue. However, Mrs. Blinder could not conclusively state whether her family exclusively used the Disputed Area for driving. The evidence suggests that the Blinders may have been the only people who drove over the Disputed Area. However, it is clear that they are not the only people who walked over the Disputed Area on a regular basis to gain access to Beach Avenue and the beach. Therefore, as the party carrying the affirmative burden of proof, Paige has failed to prove the exclusive use necessary to acquire title through adverse possession.

b. Paige Did Not Establish Adverse Use Of The Disputed Area

The deposition testimony of Lillian Blinder and Marlene Clayton regarding their use of the Disputed Area also demonstrates that it was not adverse or hostile. Adverse use requires “lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000), citing Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). Whether or not a use is permissive depends on many factors, such as “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 claiming ownership. Totman, 431 Mass. at 145, citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). Additionally, courts have also considered the “existence of a familial relationship between claimants” as a factor affecting permissive use. Totman, 431 Mass. at 145; Houghton v. Johnson, 71 Mass. App. 825, 842 (2008). In Houghton, the trial court pointed to the long-time friendship between the abutting property owners and the lack of permanent structures erected by the claimant in the disputed area as factors to be considered when determining adverse use. Id. at 842. The court determined that those acts constituted “neighborly accommodation[s],” and not acts of such “‘clear and unequivocal character that notice to the owner of the claim might be reasonably inferred.’” Id., citing L. Jones, A Treatise on the Law of Easements, Baker, Voorhis & Co., New York 1898, § 266, p. 220.

Similar acts of neighborly accommodation are present here. The Blinders never fenced off or blocked the Disputed Area to prevent others from using it. Instead, the Blinders enjoyed a close relationship with the Levines during the Levine’s ownership of 259 Beach Avenue, with Mrs. Blinder characterizing them as “extended family” who also used the Disputed Area to walk to the beach. When Robert and Gloria Zani purchased 259 Beach Avenue in 1979, they also developed a friendship with the Blinders. The shared pedestrian use of the Disputed Area that began during the Levine’s ownership continued with the Zanis, until Mrs. Blinder sold her property in 1998. What Paige asserts as adverse use simply appears to be friendly neighbors each allowing the other to use their half of the Open Area for pedestrian access. Permission by the owner—even if implied—negates a claimant's “adversity”, but the owner's acquiescence to a claimant's clearly adverse acts does not. Ivons–Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). In short, there is nothing this court gleans from the evidence that supports a finding that the Blinders’ use of the Disputed Area was adverse (as opposed to permissive) to the owners of 259 Beach Avenue.

II. Plaintiff Judith Paige Failed to Establish That She Acquired A Prescriptive Easement Over The Disputed Area For Parking

Obtaining a prescriptive easement requires “uninterrupted, open, notorious and adverse use for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); see also G. L. c. 187, § 2. Unlike a claim of adverse possession, a claim of prescription does not require proof of “exclusive” use. One seeking to establish a prescriptive easement must rely on its own use or use by those under whom it claims, and not use by a third party. Labounty, 352 Mass. at 349. The party claiming the easement carries the burden of proof and persuasion on each element. Houghton, 71 Mass. App. Ct. at 835; Tucker v. Poch, 321 Mass. 321 , 323 (1947). Failure to provide sufficient evidence for any of the elements defeats the entire prescriptive easement claim. See Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). As with adverse possession claimants, a party claiming a prescriptive easement must establish continuous prescriptive use for at least twenty years. G. L. c. 260, § 1; Hewitt v. Peterson, 253 Mass. 92 , 94 (1925). This statutorily-required period may be achieved by tacking on a predecessor-in-title’s period of adverse use, provided there is privity between the parties. G. L. c. 260, § 22; Abbot v. Mars, 277 Mass. 122 , 124 (1931).

The duration of Paige’s use of the Disputed Area falls short of the required twenty years for a prescriptive easement: even combined with Mr. Davall’s prior two years of use, it totals approximately fourteen years, between 1998 and 2012. [Note 3] Paige must tack additional time from the Blinders’ previous ownership, and she relies on the twenty-year period from 1978 to 1998. The record is undisputed that the Blinders passed over the Disputed Area both with vehicles and on foot during this time period. However, they never parked within the Disputed Area during that time frame. Paige, characterizing the Disputed Area as a “driveway,” argues that use of a driveway includes the right to park in addition to the right to pass and repass. Under this theory, Plaintiff argues that she should have the benefit of the Blinders’ use of the Disputed Area between 1978 and 1998, even though they never parked in the Disputed Area.

The extent of a prescriptive easement is “fixed by the use through which it was created.” Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962). “The nature and extent of occupancy required to establish a [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). Although the use of an easement may change over time, the variations in use cannot be substantial. Glenn v. Poole, 12 Mass. App. Ct. 292 , 292 (1981), quoting Lawless, 343 Mass. at 563. The Blinders did not use the Disputed Area for parking, and instead used it strictly as a means to access the parking area in their backyard.

The Blinders’ use of the Disputed Area, as determined above, supra at 8-9, was not adverse, and, even if this court had found otherwise, a right to pass and repass does not automatically imply a right to park. Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 375 (1997). [Note 4] For example, passage on public roads includes a right to pass, but allows for, at most, only temporary stops incident to travel. Opinion of the Justices, 297 Mass. 559 , 562 (1937). Although property owners may park in their driveways, a prescriptive easement for driveway use does not necessarily include the right to park. Kostorizos v. Samia, 9 LCR 117 , 123 (2001), 57 Mass. App. Ct. 1112 (2003). This court finds and rules that in the circumstances of this case, parking on the Disputed Area is not a minor change from passing over it, therefore Paige’s claim for parking falls outside the scope of the Blinders’ use.

Based on the foregoing, the court finds that Plaintiff failed to establish title to the Disputed Area through adverse possession. The court also finds that Plaintiff failed to establish an easement by prescription over the Disputed Area for the parking of vehicles or for any other purpose.

Judgment to issue accordingly.


[Note 1] All registry references are to the Plymouth County Registry of Deeds.

[Note 2] Lillian Blinder was deposed on July 31, 2013, at the age of ninety-nine. She had signed an affidavit documenting her use of the Disputed Area on July 14, 2013. She died prior to the start of trial. Both her deposition and affidavit were entered into the record as trial exhibits, as was her daughter’s deposition.

[Note 3] In her two-count Verified Complaint, Paige claimed adverse possession of the Disputed Area or, alternatively, a prescriptive easement for the use of parking. Paige did not claim a prescriptive easement for the use of passing through and over the Disputed Area to allow her to park in her backyard.

[Note 4] Paige cites to Harrington in support of the assertion that the right to pass may also imply a right to park: “[Harrington] recognized that ‘while [the court agrees] that a right to pass and repass does not normally imply a right to park . . . the Land Court judge erred in not considering, as a matter of fact, whether the scope of this particular implied easement included, on the circumstances presented, the right to park.” Harrington, 42 Mass. App. Ct. at 375. However, Harrington was decided by the Land Court on summary judgment and the quoted language is referencing an implied easement, and the Appeals Court decision was extremely fact-specific. Facts such as verbal statements made by a representative of the grantor trust to plaintiffs that they could park in the disputed way and the issuance of actual parking permits to plaintiffs weighed heavily in favor of the plaintiffs. Furthermore, the Appeals Court did not expressly rule that plaintiffs indeed had the right to park, but remanded the case for further proceedings and factual considerations by the trial court to determine the scope of plaintiffs’ easement, if any.