DONALD J. PERRY vs. ADA A. NEMIRA and THOMAS NEMIRA.

This case concerns a dispute between plaintiff Donald J. Perry (“Plaintiff”) and defendants Ada Nemira and Tomas Nemira (together, “Defendants” [Note 1]) as to certain easement rights over the parties’ respective properties. The parties are neighbors in a particularly densely developed area of Hull, Massachusetts. The parcel of land that is now Defendants’ property comprises the majority of two adjacent lots (defined below as “Lot 2” and “Lot 3”), which, a century ago, were held by a common landowner together with several other surrounding lots. Lot 2 abutted Lot 3 to the west, and the two lots’ northern and southern boundary lines coincided. At the north-south boundary line between these two lots ran a right of way (defined below as “ROW 3” [Note 2]). Another right of way existed at the southern end of Lot 3 to permit access from Lot 2 to public roads to the east (defined below as “ROW 1”).

The parcel of land that now comprises the majority of Plaintiff’s property (defined below as “Lot 9B”) was located to the south of Lots 2 and 3. Located between Lots 2 and 3 to the north and Lot 9B (among others) to the south was another passageway (defined below as the “North Croffut Way”), which, like ROW 1, provided access to the surrounding properties to public roads to the east.

In 1941, Lot 3 was subdivided, and its southern end (defined below as “Lot 3B”) was deeded to the owner of Lot 9B. In connection therewith, another right of way was created at the northern border of Lot 3B (defined below as “ROW 2”) to enable Lot 2 and the northern portion of the former Lot 3 (defined below as “Lot 3A”) to access public roads to the east. Lot 3A remained under the ownership of the grantor of Lot 3B, who also owned Lot 2 at that time. Those two properties (i.e., Lots 2 and 3A), together, todaycomprise Defendants’ property(the “Nemira Property”). Today, Lots 3B and 9B, together, comprise Plaintiff’s property (the “Perry Property”).

The easements noted above have been depicted in conflicting manners in various plans over the years, and the parties dispute their current statuses. In addition, the use of these easements appears to have shifted over time, as has the location of the passageway to public roads to the east, which is now known as Maple Lane. Plaintiff contends that Defendants’ right to use the portions of ROW 1 and ROW 2 encumbering Lot 3B has been extinguished, and requests rulings as to the status and use of ROW 1 and ROW 3. Plaintiff also contends that he has acquired an area at the southeastern corner of Lot 2 by adverse possession, and that he should be entitled to use additional areas at the southern end of the Nemira Property for parking by means of a prescriptive easement.

Procedural History

The original plaintiffs [Note 3] in this case commenced this action by filing an unverified complaint on December 21, 2011, in which they sought (a) a declaratory judgment that Defendants’ rights to use ROW 1 have been extinguished; (b) a declaratory judgment as to the exact location of ROW 2, and that the installation of a fence thereupon constituted a trespass on the Perry Property; (c) an injunction preventing Defendants from blocking ROW 3 with fencing; (d) a declaratory judgment that Plaintiff had acquired title to a section at the southern end of the Nemira Property (defined below as the “Perry Adverse Possession Area”) through Plaintiff’s adverse possession thereof; and, (e) the creation of a prescriptive easement over two portions at the southern end of the Nemira Property (defined below as the “Northern Parking Area” and the “Western Parking Area”, and together as the “Parking Areas”) for purposes of providing parking for the Perry Property.

Concurrently with the filing of the complaint, Plaintiff filed a motion seeking injunctive relief and a motion for a lis pendens relative to the use of ROWs 1-3. On January 20, 2012, Defendants filed an answer and a counterclaim. In their answer, Defendants, inter alia, denied that Plaintiff had any rights as to ROWs 2 and 3, and disputed Plaintiff’s right to use any portion of the Nemira Property for parking. Defendants also sought a preliminary injunction relative to these uses. A case management conference was held on January 23, 2012. Plaintiff filed an answer to Defendants’ counterclaim on February 21, 2012.

Thereafter, on February 23, 2012, Defendants filed a motion seeking a injunctive relief against Plaintiff, which was supported by a legal memorandum and affidavits of both Defendants and David G. Ray. On February 29, 2012, Plaintiff filed a memorandum seeking injunctive relief against Defendants, and in opposition to Defendants’ injunctive motion; Plaintiff’s motion was supported by affidavits of William Tobin, Linda Malnati, Christopher S. Kelley, David Williams, Karen Shilling, Frank Muccini, Phyllis Muccini, Gregory Greene, Dawn Greene, and David Hammond. A hearing on both motions was held on March 1, 2012, at which the court informed the parties that additional information would be needed in order to issue a ruling on the motions. As such, Defendants filed a supplemental brief on March 9, 2012, and Plaintiff filed a supplemental brief on March 23, 2012. A second hearing on the parties’ motions was held on April 6, 2012. Shortly thereafter, former plaintiffs William Tobin and Linda Malnati were dismissed from this case.

By order entered on May 1, 2012, the court ruled on the parties’ motions, directing, inter alia, that (a) Plaintiff had the right to use the portion of ROW 1 that directly abutted his property as his front yard; (b) Defendants were required to remove the portion of a fence blocking Plaintiff from accessing the Perry Adverse Possession Area; (c) Plaintiff did not have the right to use ROWs 2 or 3; and (d) Plaintiff did not have the right to use any portion of the Nemira Property for parking. The court appended to this injunctive order a plan labeling all disputed areas in this matter. An amended injunctive order issued on May 25, 2012 to note that although Plaintiff did not have the right to use any portion of the Nemira Property for parking, because a portion of ROWs 2 and 3 were located on Plaintiff’s property, Plaintiff did have the right to use the portions of ROWs 2 and 3 that were located on his property. Such rights did not, however, include a right to park on ROWs 2 or 3.

On February 4, 2013, Gregory Lee, former counsel for Defendants, moved to withdraw as Defendants’ counsel. A hearing on Mr. Lee’s motion was heard on March 12, 2013, and the motion was allowed. Plaintiff filed a motion for summary judgment on July 12, 2013. However, because the court had already determined that numerous material facts were in dispute between the parties, the court held that summary judgment would be inappropriate, and thus declined to act on the motion for summary judgment, directing that Defendants did not need to file any response thereto.

A pre-trial conference was held on July 15, 2013. The parties attended a mediation session before Judge Kass on August 13, 2013, but were unable to resolve their dispute. As such, trial was scheduled for September 19-20, 2013. Trial was later postponed, based on Plaintiff’s representation that he was seeking counsel to represent him.

On September 18, 2013, Defendants filed a motion for contempt against Plaintiff(alleging that Plaintiff failed to cooperate in discovery), a motion for sanctions against Plaintiff, and a motion for a lis pendens. On September 27, 2013, Plaintiff filed his opposition to Defendants’ contempt and sanctions motions. On October 18, 2013. Plaintiff filed his own motion to hold Defendants in contempt and to impose sanctions. On October 21, 2013, Plaintiff filed his opposition to Defendants’ motion for a lis pendens. The court declines to act on any of these motions.

A continued pre-trial conference was held on November 20, 2013. On December 20, 2013, Defendants filed a motion in limine to allow testimony relative to the issues of (a) signature forgery, (b) Plaintiff’s surveyor’s perjury; and (c) harassment that allegedly occurred on December 16, 2013. Plaintiff opposed this motion. A hearing on this motion was held on January 9, 2014, at which time the court declined to rule thereon because additional information was needed. The court declines to act on this motion in limine, which, in view of the court’s holding below, is now moot.

A site view of the properties at issue was held on December 9, 2013, and trial was held at the Land Court on February 19 and 25, 2014. Testimonyat trial was given for Plaintiff by David Williams (“Williams”) (a former resident of 9 Maple Lane), Frank Muccini (“Muccini”) (a former resident of 8 Maple Lane), and himself. Testimony for Defendants was given by Debra LeTourneau (“LeTourneau”) (the previous owner of the Perry Property) and John Troy (an attorney and expert in title examinations). Thirty-three exhibits were submitted into evidence at trial. The Parties filed post-trial memorandums on April 23, 2014, and, at that time, the matter was taken under advisement.

Based uponthe swornpleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

An Overview of the Subject Properties and Easements

1. The properties at issue are located in a densely developed residential area of Hull, Massachusetts. They do not directly abut any public ways, and are accessible only via a narrow private passageway known as Maple Lane, which provides access to Center Hill Avenue to the east.

Center Hill Avenue was previously known as Centre Avenue, and appears today to also be known as Meade Avenue.

2. The Nemira Property is approximately 18,086 square feet in area, and it comprises what is depicted on a plan entitled “Plan of Land on Center Hill, Hull, Mass.” dated August, 1911, and prepared by Walter B. Foster C.E. ( the “1911 Plan”) as “lot 2” in said plan (“Lot 2”) and the northerly portion (“Lot 3A”) of what is depicted in said plan as “lot 3” (“Lot 3”). The Nemira Property is depicted on a November 24, 2010 plan entitled “Plan of Land”, which was prepared for Defendants by Nantasket Survey Engineering, LLC (the “2010 Plan”). The Nemira Property is also shown as Assessor's Map 51, Parcel 076. A residential house is situated entirely within Lot 2 in the Nemira Property. The Nemira Property is owned by Defendant Tomas Nemira pursuant to a foreclosure deed dated March 9, 2009 and recorded in the Plymouth County Registry of Deeds (the “Registry”) at Book 38457, Page 271 (the “Nemira Deed”). The street address of the Nemira Property is 12 Maple Lane.

3. The Perry Property comprises the southern portion of Lot 3 (“Lot 3B”) plus a parcel to the south (“Lot 9B”), which is not depicted on the 1911 Plan, but which is shown on the 2010 Plan as Lot 9B, Assessor's Map 51, Parcel 0084. Plaintiff’s residence is situated entirely on Lot 9B. The Perry Property is owned by Plaintiff pursuant to a foreclosure deed dated February 9, 1996 and recorded in the Registryat Book 14143, Page 329 (the “Perry Deed”). The street address of the Perry Property is 9B Maple Lane.

4. ROW 1 is a twelve foot wide right of way depicted in the 1911 Plan as running west to east from Center Hill Avenue through two unrelated properties (defined herein as “Lot 4” and “Lot 5”) and the southern end of Lot 3B to the southeast corner of Lot 2. As depicted in the 1911 Plan, ROW 1 extends 266.21 feet westward from Center Hill Avenue through Lots 3, 4, and 5 along these lots’ southern edges, and terminates at the southeast corner of Lot 2, where it intersects with ROW 3. The 1911 Plan specifies that ROW 1 is located one foot north of the southern property line of Lots 3, 4, and 5. The depiction of ROW 1 in all known plans of record shows this way as generally coinciding with the passageway today known as Maple Lane, although more recent usage indicates that the actual location of Maple Lane has shifted slightly to the south. While multiple deeds in the chains of title of the parties’ properties reference ROW 1, its exact origin is unknown.

5. ROW 2 was created by deed dated August 20, 1941 and recorded in the Registry at Book 1811, Page 545 (defined below as the “Lot 3 Division Deed”) in connection with the subdivision of Lot 3. It consists of two segments, both of which are situated entirely within the area of Lot 3B. The first segment of ROW 2 is a twelve foot wide right of way running northwest to southeast along the boundary between Lots 3B and 3A. ROW 2 is depicted on the 2010 Plan. The second segment is a twelve foot wide right of way running north to south along the eastern boundary of Lot 3B. This north-south segment of ROW 2 is largely coterminous with the northwest-southeast segment. [Note 4]

6. ROW 3 is a ten foot wide right of way straddling the boundary line between Lot 2 to the west and Lots 3B and 3A to the east. It runs along the entirety of the shared boundary between Lot 2 and Lots 3B and 3A. ROW 3 is situated directly in the middle of this property line, with five feet lying on each side thereof. It runs south to north along this line from the southern boundaries of Lots 2 and 3B to the northern boundaries of Lots 2 and 3A. [Note 5] ROW 3 is depicted on both the 1911 Plan and the 2010 Plan. It intersects both ROWs 1 and 2 where those easements reach the boundary between Lots 2 and 3A. While multiple deeds in the chains of title of the parties’ properties reference ROW 3, its exact origin and intended beneficiaries are unknown.

7. The portion of the Nemira Property that Plaintiff is claiming by adverse possession (the “Perry Adverse Possession Area”) is located at the southeast corner of Lot 2 running from the southern boundary of Lot 2 to the southern end of the Western Parking Area (defined below), and along an irregular, curving western boundary to the eastern boundary of Lot 2. The Perry Adverse Possession Area partially overlaps the southernmost portion of ROW 3.

8. There are two areas located on the Nemira Property over which Plaintiff seeks a prescriptive easement for purposes ofparking and turning around automobiles (together, the “Parking Areas”). [Note 6] The first parking area (the “Northern Parking Area”), is located on the southern boundary of Lot 3A, directly to the north of ROW 2. It runs 62.12 feet west from the eastern boundary of Lot 3A, and 25 feet north from the southern boundary of Lot 3A. The second parking area (the “Western Parking Area”) is located near the southeast corner of Lot 2, just to the west of ROW 2, and partially overlaps ROW 3 near its southern end. It runs from the northernmost point of the Perry Adverse Possession Area 47.37 feet north along the eastern boundary of Lot 2 (which point appears to coincide with the southwest corner of Lot 3A and the northwest corner of ROW 2), west eighteen feet, south sixteen feet, east four feet, southeast 14 feet, and back to its starting point along the northeast-curving northern end of the Perry Adverse Possession Area.

The Nemira Property’s Chain of Title (1872 - Present)

A. Historical Ownership of the Surrounding Properties (1872 - 1913)

9. Title to the Nemira Property can be traced, for relevant purposes, back to a large tract of land on Center Hill in Hull, Massachusetts (the “Park Tract”), which was owned by a man named William D. Park (“Park”). The Park Tract included what are described on the 1911 Plan as lots 1-4 and 6. [Note 7] Park obtained title to the Park Tract through eight separate smaller conveyances of land between 1872 and 1880 (together, the “Park Deeds”). [Note 8]

10. The earliest reference found to the easements at issue herein is found in the Park Deeds. For instance, the deed dated May 27, 1873 and recorded in the Registry at Book 390, Page 168 (the “Park Lot 3 Deed”), which conveyed land roughly corresponding to what was later depicted on the 1911 Plan as Lot 3, conveyed said land together with the appurtenant burden and benefit of the “rights to use the passageway to be laid out in the rear of the land hereby conveyed where the pathway road runs . . . .” Subsequently, another of the Park Deeds -- specifically, the deed dated June 20, 1873 and recorded in the Registry at Book 390, Page 201 (the “Park Lot 2 Deed”) -- expressly provided access to an anticipated passageway by conveying the land: “[t]ogether with the rights to use the passageway to be laid out in the rear of the land hereby conveyed in common with the others, and also the right to use the well mentioned in said deed from Noah Reed.” Defendants’ expert witness, John Troy, testified that “the rear of the land” was likely intended to refer to southern ends of the properties conveyed by the Park Deeds, i.e., to the area roughly corresponding to ROW 1.

11. By deed dated May 29, 1873 and recorded in the Registry at Book 409, Page 118, which was executed apparently in connection with the Park Deed dated September 29, 1872 and recorded in the Registry at Book 391, Page 168 (the “Park Lot 4 Deed”), which conveyed to Park land roughly corresponding what would later be depicted on the 1911 Plan as Lot 4, Park also received a deeded “right to use the passageway in [the] rear of said premises and also to use in common.” [Note 9]

12. After he had acquired the western portion of the Park Tract, Park recorded a notice dated June 10, 1874 and recorded in the Registry at Book 409, Page 118 (the “1874 Park Notice”), which stated as follows:

I claim the right to use a passageway twelve feet wide running the entire length of the south line of the land conveyed to me by [the Park Deeds]. Also a right to use a passageway twelve feet wide and about one hundred and ten feet long running southerly from the easterly end of the above named passageway and at right angles with it and being bounded on the east by land now or formerly of the Simonds Farm Corporation. [Note 10]

13. By deed dated June 21, 1897 and recorded in the Registry at Book 747, Page 125, Park conveyed the Park Tract (and all the rights and obligations appurtenant thereto) to Kate Stimson. [Note 11] The Park Tract was then reconveyed several times over the course of the following year until it was deeded to Joseph O. Burdett (“Burdett”) in April of 1898. [Note 12] Over the next five years, Burdett split up the Park Tract into several sections. First, by deed dated April 10, 1899 and recorded in the Registry at Book 776, Page 329, Burdett conveyed out of the Park Tract a lot to the northwest of the subject properties (which is shown on the 1911 Plan as belonging to Mary D. Templeton) to Nettie M. Burr. Next, by deed dated June 13, 1901 and recorded in the Registry at Book 822, Page 40, Burdett conveyed out of the Park Tract a lot north of Lot 2 (which is shown on the 1911 Plan as belonging to William G. Roemer) to Caroline B. Gillham. After these two transactions, only Lots 1-4 and 6 (together, the “Burdett Tract”) remained of the Park Tract. By deed dated April 30, 1903 and recorded in the Registry at Book 869, Page 140, Burdett conveyed this Burdett Tract to Phillip J. Hall and Henry G. Andrews.

14. By deed dated May 11, 1903 and recorded in the Registry at Book 869, Page 185, Messrs. Hall and Andrews conveyed the Burdett Tract to George F. Hall (“Hall”). By deed dated October 14, 1909 and recorded in the Registry at Book 1035, Page 449, Hall later also obtained title to Lot 5. [Note 13] Therefore, as of 1909, Hall owned both the Burdett Tract (i.e., Lots 1-4 and 6) plus Lot 5 (together, the “Hall Tract”). At or around that time, Hall appears to have commissioned the 1911 Plan in connection with his plans to subdivide the Hall Tract into the lots depicted as Lots 1 - 6 therein, and then sell off said Lots. [Note 14] The 1911 Plan also specifically delineated the passageways previously described in the Park Deeds and in the 1874 Park Notice. B. Lot 2’s Chain of Title (1913 - 1953)

15. By deed dated September 17, 1913 and recorded in the Registry at Book 1164, Page 19 (the “Wickham Lot 2 Deed”), Hall conveyed Lot 2 out of the Hall Tract to Ellen T. Wickham. [Note 15] The Wickham Lot 2 Deed references two easements affecting Lot 2 over two passageways, which are described with reference to their depictions on the 1911 Plan. The first easement (ROW 3) burdened Lot 2 on its eastern boundary, and the second (ROW 1) burdened Lot 2 on its southern boundary. Both easements permitted Lot 2 to use same for utilities, but not for access. [Note 16]

16. By deed dated February 20, 1937 and recorded in the Registry at Book 1721, Page 147, Ellen T. Wickham conveyed Lot 2 to Amos A. Phelps and William G. Allen, trustees under the will of Washington Reed. This deed preserved ROWs 1 and 3. [Note 17] These trustees later conveyed Lot 2 to Mary Barbara Allen by deed dated May 10, 1939 and recorded in the Registry at Book 1769, Page 14 (the “Mary Allen Deed”). The Mary Allen Deed contained language similar to the Wickham Lot 2 Deed preserving ROWs 1 and 3, but also included language purporting to convey a right to travel over both ROW 1 and ROW 3 -- although it is unclear at best whether the grantee under said deed was granted such travel rights. [Note 18]

17. Mary Barbara Allen conveyed Lot 2 to Mary H. Dobie by deed dated April 9, 1947 and recorded in the Registry in Book 1956, Page 5. With respect to ROWs 1 and 3, this deed contains language identical to the Mary Allen Deed, which it incorporates by reference. As discussed below, beginning under Mary H. Dobie’s ownership, and in every conveyance of Lot 2 thereafter (up to and including the Nemira Deed), Lot 2 was conveyed together with Lot 3A.

C. Lot 3A’s Chain of Title (1913 - 1953)

18. At some point between 1914 and 1923, Hall apparently passed away, leaving what remained of the Hall Tract to Mary E. Hall, Margaret Hall, and Philip F. Hall, as trustees under his will. By deed dated December 1, 1923 and recorded in the Registry at Book 1442, Page 590 (the “Mary Perry Deed”), [Note 19] Hall’s trustees conveyed Lots 3, 4, and 6 out of what then remained of the Hall Tract to Mary N. Perry (“Mary Perry”). The Mary Perry Deed expressly provided easement rights to ROWs 1 and 3, as they are portrayed on the 1911 Plan, for utilities. [Note 20] By deed dated January 14, 1925 and recorded in the Registry at Book 1479, Page 182, Hall’s trustees also conveyed the southern twelve feet of Lot 5 to Mary Perry, [Note 21] thus granting her a fee interest in the portion of ROW 1 burdening Lot 5. [Note 22]

19. By deed dated June 26, 1934 and recorded in the Registry at Book 1665, Page 553, Mary Perry conveyed Lot 3 to Carmen F. Perry. [Note 23] This deed preserved ROWs 1 and 3 with language identical to that in the Mary Perry Deed (as well as the scrivener’s error pertaining to ROW 1). [Note 24]

20. Carmen F. Perry conveyed Lot 3 to Edith M. Walsh (“Walsh”) by deed dated January 23, 1937 and recorded in the Registry at Book 1722, Page 221 (the “Walsh Lot 3 Deed”). Like the previous deed, the Walsh Lot 3 Deed contains identical language to that of the Mary Perry Deed preserving ROWs 1 and 3 (as well as the same scrivener’s error pertaining to ROW 1).

21. By deed dated August 20, 1941 and recorded in the Registry at Book 1811, Page 545 (the “Lot 3 Division Deed”), Walsh subdivided Lot 3 and conveyed 6,703 sq. ft. of the northern portion of same (i.e., Lot 3A) to Edward Allen. Lot 3A is first depicted on a plan entitled “Plan of Land at Center Hill Hull, Mass. Surveyed For Edith M. Walsh and Being the North Portion of Lot 3 on Plan by Walter B. Foster, Dated August 1911”, which was dated June 18, 1941 and was prepared by engineer Lewis W. Perkins (the “1941 Plan”).

22. The Lot 3 Division Deed expressly created a new right of way over Lot 3B -- i.e., ROW 2. It stated specifically that Lot 3A was being conveyed:

together with a right to pass and re-pass on foot or by vehicle in a twelve (12) foot right of way, created and established by this deed, running along the northerly part of the southerly portion of Lot #3 [i.e., Lot 3B]. Said premises are also conveyed together with the right to pass and repass on foot or by vehicle in a twelve (12) foot right of way created and established by this deed running along the easterly part of the southerly portion of Lot #3. [Note 25]

The 1941 Plan depicts the southeast-northwest portion of ROW 2, which is described as a “Tarred Way”, but does not show the north-south portion of ROW 2. The Lot 3 Division Deed does not contain express language pertaining to ROWs 1 or 3.

23. By deed dated September 29, 1950 and recorded in the Registry at Book 2116, Page 027, Edward Allen conveyed Lot 3A to Mary H. Dobie, who, as noted above, also owned Lot 2 at that time. This deed contains language similar to that found in the Lot 3 Division Deed granting use rights in ROW 2.

D. Lot 2 and Lot 3A's Joint Chain of Title (1953 - Present)

24. By deed dated August 3, 1953 and recorded in the Registry at Book 2288, Page 9, Mary H. Dobie conveyed both Lot 2 and Lot 3A (i.e., together, the Nemira Property) to George F. Hannon and Winfred F. Carfagno. The Hannon-Carfagno Deed contains language granting use rights in ROWs 1 and 3 for the benefit of Lot 2. [Note 26] In or around 1972, Mr. Hannon passed away, so his interest in Lot 2 and Lot 3A was transferred to Winfred F. Carfagno, as is indicated in an Inheritance Tax Release of Lien dated April 14, 1972 and recorded in the Registry at Book 3767, Page 537. Thereafter, by deed dated March 27, 1972 and recorded in the Registry at Book 3767, Page 538, Ms. Carfagno conveyed Lot 2 and Lot 3A to herself and Winfred T. Carfagno. This deed contained similar language to the previous one, granting use rights in ROWs 1 and 3 for the benefit of Lot 2, as well as use rights in ROW 2 for the benefit of Lot 3A.

25. By deed dated February 28, 1997 and recorded in the Registry at Book 15001, Page 270, Winfred F. and Winfred T. Carfagno conveyed Lot 2 and Lot 3A to David J. Hammond. This deed contained similar language to the previous two deeds, granting use rights in ROWs 1 and 3 for the benefit of Lot 2, as well as use rights in ROW 2 for the benefit of Lot 3A.

26. In August of 2004, David J. Hammond granted a mortgage to Washington Mutual Bank, F.A., which was secured by the titles to Lot 2 and Lot 3A. This mortgage is dated August 27, 2004 and was recorded in the Registry at Book 29011, Page 301. Hammond later defaulted on this mortgage, as a result of which the bank foreclosed, resulting in a transfer of Lot 2 and Lot 3A to the bank by foreclosure deed dated March 9, 2009 and recorded in the Registry at Book 38457, Page 271. The bank then conveyed Lot 2 and Lot 3A (i.e., the Nemira Property) to Defendant Tomas Nemira pursuant to the Nemira Deed, which incorporates by reference the previous three deeds’ language granting use rights in ROWs 1 and 3 for the benefit of Lot 2, as well as the use rights in ROW 2 for the benefit of Lot 3A.

The Perry Property’s Chain of Title (1873 - Present)

A. Historical Ownership of the Perry Property (1873 - 1915)

27. For relevant purposes, title to the Perry Property can be traced back to William and Margaret Morse, who, in 1873, owned a tract of land located to the south of the Park Tract, the western portion of which they conveyed to Franklin Croffut by deed dated July 23, 1873 and recorded in the Registry at Book 410, Page 99 (the “1873 Croffut Deed”). [Note 27] The land conveyed by this deed include Lot 9B, as well as additional land to the west.

28. The metes and bounds in the 1873 Croffut Deed reference two twelve foot wide passageways: one running along the majority of the northern boundary of the property conveyed thereby (the “North Croffut Way”), and a second running along the entirety of the conveyed property’s southern boundary (the “South Croffut Way”). While the 1873 Croffut Deed specified that these passageways were not part of the property conveyed thereby, it did provide that the property conveyed had “the right to use the passageways bounded on said granted premises . . . all of which are said to be in common with the said grantor [i.e., the Morses] and the said William D. Park [then- owner of the Park Tract, to the north]. . . [and] also with the right to...build and construct suitable roads over and upon said passageways doing as little injury to adjoining land as possible.”

29. The first known depiction of these passageways is on the Land Court Registered Plan number 17866A entitled “Plan of Land in Hull” and prepared by Lewis, W. Perkins, Engineer on November 25, 1940 (the “1940 Land Court Plan”). In said plan, the North Croffut Way is depicted as running from the northwest corner of Lot 9B, along the northern border of Lot 9B and the westerly lot defined therein as lot B (“9A Maple Lane”) to the western boundary of what is designated therein as lot A (“9 Maple Lane"), where it appears to join up with another purported way near the northern edges of 9 Maple Lane and Lot 6. The 1940 Land Court Plan depicts the South Croffut Way as running from the southwest corner of 9 Maple Lane westwardly to Valley Beach Avenue. [Note 28]

30. By deed dated May 16, 1876 and recorded in the Registry at Book 430, Page 197 (the “1876 Croffut Deed”), William and Margaret Morse conveyed two additional portions of their land comprising the eastern half thereof to Franklin Croffut’s wife, Abigail Ford Croffut. The two parcels conveyed pursuant to the 1876 Croffut Deed roughly correspond to 9 Maple Lane and 9A Maple Lane. [Note 29] The 1876 Croffut Deed granted this land “together with the privilege of using said passageways in common with others having the same right.” However, neither the 1873 nor the 1876 Croffut Deeds actually conveyed the land comprising any portion of the North Croffut Way or the South Croffut Way, which land was apparently reserved by the Morses. [Note 30]

31. The land conveyed by the 1873 and 1876 Croffut Deeds, together with the land conveyed by the 1876 Croffut Deeds comprised, roughly, 9 Maple Lane, 9A Maple Lane, and Lot 9B (which is described on the 1940 Land Court Plan as belonging to Edith M. Walsh), plus additional land to the east of Lot 9B (together, the “Croffut Tract”). [Note 31]

32. In 1892, Franklin Croffut obtained sole title to the entirety of the Croffut Tract pursuant to Abigail Ford Croffut’s will (Suffolk County Probate # 89449, September 1, 1890, recorded in the Registry at Book 654, Page 95). Years later, Franklin Croffut bequeathed the entirety of the Croffut Tract to his sister, Sarah M. Foster, pursuant to his own will (Plymouth County Probate # 18810, September 18, 1892) when he died in 1910.

B. Lot 9B’s Chain of Title (1915 - 1946)

33. By deed dated May 3, 1915 and recorded in the Registry at Book 1219, Page 249 (the “Flinn Deed”), Sarah M. Foster conveyed Lot 9B out of the Croffut Tract to Sarah M. Flinn. [Note 32] The Flinn Deed described Lot 9B as follows:

Beginning at the Northerly corner thereof at [the North Croffut Way] as referred to in [the 1873 Croffut Deed] and running southerly about eighty-three and 5/10 (83.5) feet to [the South Croffut Way] thence westerly along [the South Croffut Way] fifty (50) feet; thence northerly to land formerly owned by Margaret E Morse and now supposed to belong to the estate of George F. Hall [i.e., Lot 3] about ninety five (95) feet; thence easterly on [Lot 3] about five (5) feet [the North Croffut Way] then southerly by the western bound of [the North Croffut Way] twelve (12) feet; thence easterly again along the southerly bound of [the North Croffut Way] about forty-five (45) feet to the point of beginning.

The Flinn Deed also granted rights to use the North Croffut Way and the South Croffut Way:

Together with the right of passage in said twelve (12) foot passageway running along the northerly side of premises and likewise right of passage in said twelve (12) foot passagewayrunning along the southerly side of said premises, said passageways having been established in the [1873 Croffut Deed] and being part of the premises conveyed to said Franklin Croffut by deed of said Margaret E. Morse, also deed of William W. Morse, to Abigail Croffut dated May 16, 1876 recorded [with the Registry at] Book 430, Page 197, also deed of Leonard Dannon to Franklin Croffut dated Nov. 7 1873, recorded [with the Registry at] Book 410 Page 100.

34. By deed dated January 17, 1924 and recorded in the Registry at Book 1456, Page 211 (the “Walsh Lot 9B Deed”), Sarah M. Flinn conveyed Lot 9B to Walsh, who, as discussed above, would later come to own Lot 3 as well. As in the Flinn Deed, the metes and bounds description of Lot 9B in the Walsh Lot 9B Deed was given in relation to North Croffut Way and South Croffut Way:

Beginning at the Northeasterly corner thereof, at a 12 foot right of way as referred to in the [1873 Croffut Deed], and running Southerly about 83.5 feet to a passageway 12 feet wide; thence running Westerly along said passageway 50 feet; thence Northerly to land formerlyowned by Margaret E. Morse, now owned by George F. Hall about 95 feet; thence Easterly on [land of] said Hall about 5 feet to said passageway thence Southerly by the Westerly bound of said passageway 12 feet; thence Easterly again along the Southerly bound of said passageway about 46 feet to the point of beginning.

The Walsh Lot 9B Deed contains similar language to the Flinn Deed, granting rights in the North Croffut Way and South Croffut Way: “Together with the right of passage to said 12 foot passageway along the Northerly side of said premises and likewise right of way in the 12 foot passageway in the Southerly side of said premises . . . .” The Walsh Lot 9B Deed describes the North Croffut Way and South Croffut Way as having been established in the 1873 and 1876 Croffut Deeds.

35. As discussed above, Walsh also acquired Lot 3 in 1937. From 1937 to 1941, Walsh owned both Lot 3 and Lot 9B. Walsh then subdivided Lot 3 in 1941 pursuant to the Lot 3 Division Deed, thus creating Lot 3B (which she retained for the next five years) and Lot 3A (which she conveyed to Edward Allen pursuant to said deed).

C. Lot 3B and Lot 9B’s Joint Chain of Title (1946 - Present)

36. By deed dated September 6, 1946 and recorded in the Registry at Book 1928, Page 5, Walsh conveyed Lot 3B and Lot 9B (i.e., the Perry Property) to Michael A. and Elizabeth A. Lawton. This deed describes Lot 9B with the substantially similar metes and bounds description as in the Flinn Deed and the Walsh Lot 9B Deed, and with the same rights of way. [Note 33]

37. Elizabeth A. Lawton later inherited her husband, Michael A. Lawton’s interest in Lots 3B and 9B. She later conveyed her sole interest in said property to Francis P. McHugh and Ruth P. McHugh by deed dated October 15, 1975 and recorded in the Registry at Book 4109, Page 545. The metes and bounds description and references to easement rights in this deed are identical to those found in the previous deed.

38. By deed dated August 14, 1979 and recorded in the Registry at Book 4706, Page 12, Francis P. McHugh and Ruth P. McHugh conveyed Lots 3B and 9B to Eutimio Falcione and Mary Falcione. This deed’s metes and bounds description and references to easement rights are identical to those found in the previous two deeds.

39. Eutimio Falcione and Mary Falcione conveyed Lots 3B and 9B to LeTourneau (who, as noted above, testified at trial) by deed dated November 17, 1993 and recorded in the Registry at Book 12415, Page 3. This deed’s metes and bounds description and references to easement rights are identical to those found in the previous three deeds. In connection with this sale, Mary Falcione granted LeTourneau a mortgage dated November 19, 1993 and recorded in the Registry at Book 12415, Page 004, which was secured by Lots 3B and 9B.

40. LeTourneau later defaulted on her mortgage, as a result of which Mary Falcione foreclosed upon Lots 3B and 9B, resulting in a transfer of said lots by Mary Falcione to Plaintiff pursuant to the Perry Deed. The Perry Deed references only “the premises conveyed by [LeTourneau’s] mortgage”, and contains no recitation of the metes and bounds of the property conveyed, nor any reference to any servitude burdening or benefitting the Perry Property.

Witness Testimony

41. Plaintiff testified as his own fact witness regarding the use of ROWs 1 - 3, the Perry Adverse Possession Area, and the Parking Areas. His knowledge as to these issues was derived from his personal observations as the owner (though not resident) of the Perry Property since February 9, 1996. He also testified that he has lived on 15 Russell Street in Hull, Massachusetts for the past twenty-seven years. Plaintiff testified that he learned about the Perry Property in or around early September - October of 1995 because it was involved in a pending foreclosure action. He also testified to having visited the Perry Property “several times” to look at it between approximately September of 1995 and February of 1996, when he purchased it.

42. Williams, who, as noted above, is a former resident of 9 Maple Lane, also testified as a fact witness regarding the use of ROWs 1 - 3, the Perry Adverse Possession Area, and the Parking Areas. His knowledge on these issues was derived from his personalobservations during his residency at 9 Maple Lane from “the mid-1950s . . . to 1990”, with the exception of an unspecified five year period in which when he lived in Brockton but visited 9 Maple Lane around “once a week”. Notwithstanding these statements, he also testified that he was deployed in the National Guard in Iraq from 1990 to 1991. He claimed that his first specific memory of 9 Maple Lane was from March of 1963, when, while visiting the property with his grandfather, he learned that his grandmother had passed away in March of 1963.

43. Muccini, who, as noted above, is the current owner of 8 Maple Lane (i.e., Lot 5), also testified as a fact witness regarding the use of ROWs 1 - 3, the Perry Adverse Possession Area, and the Parking Areas. His knowledge on these issues was derived from his personal observations as a frequent visitor of 8 Maple Lane from approximately 1975 to 2008. He stated that his mother purchased 8 Maple Lane in or around 1975, and that he visited the area “[q]uite often” until 2008, at which point he briefly came to live at 8 Maple Lane for a period of approximately ten months.

44. LeTourneau -- the prior owner of the Perry Property, whose interest therein was foreclosed upon, resulting in the foreclosure sale of same to Plaintiff -- also testified as a fact witness regarding her use of the Perry Property, ROWs 1 - 3, the Perry Adverse Possession Area, and the Parking Areas. Her knowledge on these issues was derived from her ownership of the Perry Property from November 17, 1993 to February 9, 1996. However, LeTourneau admitted that she effectively abandoned the Perry Property after November of 1994 when she was incarcerated.

Use and Topography of the Perry Property

45. The parties’ properties are accessed via Maple Lane (a private road), which connects with Center Hill Avenue (a public road) to the east. At some point, Maple Lane was paved over from its access point on Center Hill Avenue to an area roughly in the vicinity of the boundary between Lots 2 and 3B, where it opens into the unpaved Parking Areas. The roadway is, today, in poor condition, having deteriorated over time. Maple Lane exists in the same general location as ROW 1 east of Lot 3B, although the exact location of the paved road appears to have shifted slightly to the south over time. At or around the eastern edge of Lot 3B, Maple Lane curves to the northwest, where it lies in the location of ROW 2, and runs roughly to the eastern boundary of Lot 2.

46. ROW 1 and ROW 2 intersect near a telephone pole at or around the southeastern corner of Lot 3B. ROW 1 continues from that point westwardly across Lot 3B through foliage (bamboo and roses), and over a four-foot drop-off where there is a stone ledge separating the yard area of the Perry Property from 9A Maple Lane, the property immediately to the east, which is owned by Linda Malnati, formerly a plaintiff in this case. This ledge is different from the stone wall located in Plaintiff’s front yard area on Lot 3B. There is also a large maple tree on the Perry Property located within the area of ROW 1 on the southern side thereof, just after it splits off from ROW 2. ROW 1 west of Lot 4 is not paved, nor is the North Croffut Way, which represents the area of the Perry Property just in front of Perry’s house, on Lot 9B.

47. Plaintiff testified that, after he purchased the Perry Property, he spent the next few years renovating the interior and exterior of the premises. Plaintiff stated that he visited the Perry Property on a near daily basis while renovating it, and at least twice a month after renovations were complete. Plaintiff further testified that, after this work was complete, the Perry Property was occupied by a tenant from “a few years after he purchased the property” until the present day, with the property being unoccupied for no greater period than a year during his ownership.

48. Plaintiff testified that his property had a front yard (the “Yard”), which extends north from the front porch of the house on Lot 9B into Lot 3B. [Note 34] He testified that he “moved the very top of [the Yard] where we see the stone wall, that was expanded outwards several feet.” He also testified that there were trees to the right of the house on the Perry Property when he purchased it, including maple trees and other kinds of trees, but that there was minimum planting along the house. He stated that he planted forsythia against the house and that he has continually maintained the Yard himself, on a bi-weekly basis, but did not specify when this began. Plaintiff testified that he often accessed the Perry Property to mow the lawn and otherwise maintain the property during warmer months, and that he often dealt with snow during winter months.

49. Plaintiff stated that, in 1997, he installed a brick walkway in the Yard from the area where ROWs 2 and 3 meet (i.e., between the North Parking Area and West Parking Area) across the Perry Property, splitting a stone wallthat was installed across the Yard in 2005, and which is depicted on the 2010 Plan. This walkway runs down through the Yard to the front of the house on the Perry Property. Its location is shown on the 2010 Plan as passing through a gap in the stone wall north of ROW 1, south of ROW 2, and east of ROW 3. Plaintiff testified that, in connection with building this walkway, between 1997 and 2005, he also installed tiered brick steps, as well as several landscaping features on ROW 1, south of the stone wall.

50. Plaintiff stated that his various landscaping activities in the Perry Property included work within ROW 1, such as trimming and maintenance of foliage and trees. He claimed these activities were continuous since 1996, and that the work done was visible from neighboring properties. He further testified that he did this maintenance work without the permission of his neighbors and that, since 1996, when he purchased the Perry Property, he had never seen the owners of the Nemira Property maintain this area.

51. Williams (who previously resided at 9 Maple Lane, two lots east of the Perry Property) testified that the Yard comprises the portion of Lot 3B south of the stone wall after its construction, including ROW 1. He testified that the Yard was regularly landscaped during the summer months from 1963 to the mid-1980s. Williams stated that this landscaping included maintaining hedges, bushes (which still exist on the Perry Property), and flowers around trees. Williams specifically claimed to remember Michael A. and Elizabeth A. Lawton (who owned the Perry Property from 1946 through 1975) maintaining the hedges and the Yard. Williams testified that, from 1963 to the mid-1980s, he never observed anyone tell the owners of the Perry Property that they could not maintain a landscaped yard in these areas, nor did he observe anyone other than the owners of Perry Property landscape this area. Finally, Williams testified that, from 1963 to the mid-1980s, the Yard encompassed an area of similar size to what is visible today. He stated that he never observed vehicles utilizing the Yard or ROW 1.

52. Muccini (who resides at 8 Maple Lane, two lots to the east of the Nemira Property) testified that, throughout the entire time that he was acquainted with the Perry Property (which he stated was from approximately 1975 to 2008), the Yard was obstructed with bushes and trees such that there was never a time when someone would have been able to drive a car through the Yard along ROW 1. He further testified that, during the time before LeTourneau purchased the Perry Property in 1993, the property fell into “very bad disrepair”. However, he stated that the Yard still existed during this period (despite not being in its present landscaped condition), and that the Yard continued to obstruct passage across that portion of ROW 1.

53. LeTourneau (the previous owner of the Perry Property) testified that, when she purchased the Perry Property in 1993, there was only a very small front yard without any significant landscaping. In particular, she stated that the stone wall and nearby maple tree (which were later installed by Plaintiff) were not present. She also testified that she utilized a portion of ROW 1 in front of the house on Lot 9B to park her car when accessing the Perry Property, [Note 35] but that, when she had guests, they had to park in the Northern Parking Area, which she claimed theydid with the permission of the owners of the Nemira Property.

Use and Topography of the Perry Adverse Possession Area

54. Plaintiff testified that the Perry Adverse Possession Area, which is located at the southeast corner of Lot 2, on the Nemira Property, has been a part of the Yard from the time that he purchased the house in 1996, and that his landscaping and maintenance work extended into this area. Plaintiff testified that these activities have been continuous and ongoing since 1996, and that they were visible from neighboring properties. He further testified that at no point did anyone give him permission to enter the Perry Adverse Possession Area to do this work, and that he has never witnessed anyone else landscaping this area.

55. Muccini, the owner of 8 Maple Lane, testified that he has never observed anyone (including Plaintiff) actively landscaping the Perry Adverse Possession Area.

Use and Topography of the Parking Areas

56. Plaintiff testified that, during the course of his renovation work at the Perry Property, he would regularly allow contractors, work crews, and guests to use the Parking Areas to park and to turn vehicles around when they needed to access the Perry Property.

57. Williams, who previously resided at 9 Maple Lane, testified that he parked in the Western Parking Area “many times” from the 1970s through approximately 1983. He also testified that he regularly observed prior owners of the Perry Property park and turn vehicles around in the Western Parking Area “all the time . . . daily . . . from Memorial Day to Labor Day” from the 1970s through 1983. He further testified that he parked in the Northern Parking Area “numerous times”, but that he could not remember any of the owners of the Perry Property ever parking there. He claimed that he never witnessed any owner of the Nemira Property grant permission to park in the Parking Areas.

58. Muccini, the owner of 8 Maple Lane, testified that he regularly observed the Western Parking Area being used by others for turn-around purposes “[b]ecause it’s a dead end street”. He stated, however, that whenever he attempted to use the Northern Parking Area to park. he was told by the then-owners of the Nemira Property (at that time Carfagno, and later Hammond) not to park there. However, he stated that he did regularly use the Parking Areas to turn around and for unloading his car. He stated that he was not acquainted with either Michael A. and Elizabeth A. Lawton (owners of the Perry Property from 1946 to 1975) or Eutimio and Mary Falcione (who owned the Perry Property from 1979 to 1993).

59. LeTourneau testifed that she did not personallyuse the Parking Areas for parking, but that she obtained permission from the owners of the Nemira Property to use the Northern Parking Area for parking for contractors working on the Perry Property.

* * * * * * * * * * * * * * * * *

There are two sets of issues in this case that I will examine in turn. First, I must determine what rights, if any, the parties have as to the usage of ROWs 1 - 3. In connection with doing so, I must determine whether (assuming any or all of the easements exist) Defendants’ right to use any of the three easements has been extinguished by Plaintiff and/or his predecessors in title by adverse possession. Second, I must determine whether Plaintiff has acquired title by adverse possession to the Perry Adverse Possession Area and/or easements byprescription for the use of the Parking Areas.

The Parties’ Rights in ROWs 1 - 3

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another. It is a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor.” Comm. Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990) (quotation and citations omitted). An express easement must be granted in writing and described with reasonable certainty in the granting instrument. E.g., Mason v. Albert, 243 Mass. 433 , 437 (1923). However, pursuant to G. L. c. 183, § 15, “[i]n a conveyance ofrealestate, all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.” Thus, while an express easement can only be created through a specific, detailed writing, the failure of future conveyancing instruments to specifically mention an already-created easement will not effect the extinguishment thereof.

An express easement is perpetual unless its duration is qualified in the grant of the easements; barring such a qualification, an easement is extinguished only by “grant, release, abandonment, estoppel or prescription” Delconte v. Salloum, 336 Mass. 184 , 188 (1957). While an easement may be extinguished by abandonment, mere non-use is insufficient to establish that the easement has been abandoned. See id. Rather, “whether there is an abandonment is ordinarily a question of intention.” Les v. Alibozek, 269 Mass. 153 , 158 (1929). An easement may also be extinguished by prescription, but this can be achieved only by the subservient tenement’s use thereof that is so “wrongful” as to “give rise to a cause of action in favor of the owner of the easement. To do this it must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement.” Delconte, 336 Mass. at 189 (quotation omitted).

A. ROW 1

The parties disagree as to the exact location of ROW 1. This issue is complicated because the conveyancing documents pertaining to the relevant properties describe in various ways multiple passageways in the general area of the private road now known as Maple Lane. The earliest reference to a passageway in the area of ROW 1 is in the Park Deeds, which vaguely references an anticipated right of way. That passageway came to be defined more specifically in the 1874 Park Notice, and years later in the Wickham Lot 2 Deed and the 1911 Plan.

In contrast to these depictions of a passageway in or around the location of ROW 1, the chain of title to the properties encompassing Lot 9B also reference a passageway, i.e., the North Croffut Way. It appears that, over the years, these two distinct passageways have been confused with each other, and were likely assumed to represent the same right of way.

In order to determine where ROW 1 is located, I have reviewed the relevant deeds and plans, and, upon doing so, it is clear that ROW 1 is the twelve foot wide east-west passageway depicted on the 1911 Plan, which is located entirely within Lots 3B, 4, and 5, north of Lot 9B’s northern edge. [Note 36]

1. The Park Deeds

As discussed above, the first reference (in documents submitted to the court) to a passageway in the area of Maple Lane is in the Park Lot 2 Deed, in which said passageway is described only vaguely. This vague passageway is again referenced in the Park Lot 3 Deed. Both of these deeds contain similar language describing the way. Specifically, the Park Lot 2 Deed describes the passageway only as “the passageway to be laid out in the rear of the land”, while the Park Lot 3 Deed elaborates, stating that the right of way was located “where the pathway road runs”. The 1874 Park Notice provided the first definite description of this passageway, describing it as “a passageway twelve feet wide running the entire length of the south line of the land conveyed to me by [the Park Deeds].” From these descriptions, it is clear that the use of a non-exclusive easement to use the portion of what is now known as Maple Lane located to the east of Lot 3B was in the contemplation of the grantor, though its exact dimensions and location had yet to be determined.

In any event, between 1873 and the 1911, the properties that would have been benefitted and burdened by this right of way came to be held in common ownership. As discussed above, the Park Tract was gradually assembled by Park between 1872 and 1880, and it came to include Lots 1 - 4 and 6. Years later, in 1909, Hall came to own what remained of the Park Tract after several portions of same were sold (i.e., the Burdett Tract) plus Lot 5, which together formed the Hall Tract. Thus, when he consolidated Lots 1 - 6 (which comprised the Hall Tract), Hall owned not only the property benefitted by the right of way described in the Park Deeds, but also all of the properties that would have been burdened thereby.

Easements are extinguished “by unity of title and possession of [the dominant and the servient] estates, in one and the same person at the same time”. Williams Bros., Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 685, rev denied, 462 Mass. 1110 (2012); see also York Realty, Inc. v. Williams, 315 Mass. 287 , 289 (1943) (a property owner “cannot have an easement in its own estate in fee”).

Thus, I find that the right of way created by the Park Deeds, to the extent that it ever existed (having never been described in any detail in any granting instrument), was extinguished though merger in 1909.

2. ROW 1’s Depiction in the 1911 Plan

While the easements created by the Park Deeds were extinguished by merger, new easements in the same location were created by the Wickham Lot 2 Deed, as depicted on the 1911 Plan. The 1911 Plan depicts the same twelve foot wide east-west passageway running along the southern boundaries of Lots 3 - 5 as was mentioned in the 1874 Park Notice, which is shown as abutting land to the south labeled “Estate of F. Crofutt”. [Note 37] The southern boundary of ROW 1, as depicted in the 1911 Plan, is on line with the southern property line of Lots 2, 3, and 4. ROW 1, so depicted, extends from the southeastern corner of Lot 2 eastward to Center Hill Avenue, thus providing a means of egress to the public way.

3. The North Croffut Way

As outlined above, between 1873 and 1876, Franklin Croffut obtained title to the Croffut Tract, which directly abutted the Park Tract to the south. This land included Lot 9B, 9A Maple Lane, and 9 Maple Lane, as well as additional land to the west. The 1873 Croffut Deed and 1876 Croffut Deed conveyed the Croffut Tract together with the rights to use the North Croffut Way, which it described as abutting the northern boundary of the Croffut Tract. The 1873 Croffut Deed suggested that the North Croffut Way represented a pre-existing right of passage also extending to William D. Park, who owned the property to the north. However, the deeds in the Lot 9B chain of title depict this way as stopping five feet short of the western boundary of the Croffut Tract. The 1940 Land Court Plan shows the North Croffut Way as a distinct strip of land running along the northern boundary of 9A Maple Lane and Lot 9B, and south of the southern boundary of the Hall Tract.

While the North Croffut Way, due to its close proximity to ROW 1, could easily be confused with ROW 1, the Land Court Case 17866 Plan makes it perfectly clear that these were actually two separate passageways. The parties adduced no evidence as to whether the North Croffut Way was ever actually used as a means of access, nor as to the chain of title of the property encompassing the North Croffut Way. It is likely that, due to the availability of ROW 1, the North Croffut Way simply was never used, especially after houses were constructed on Lot 9B and at 9A Maple Lane. [Note 38] After that point, the North Croffut Way appears to have been forgotten, and is today simply understood to form the northern twelve feet of Lot 9B, 9 Maple Lane, and 9A Maple Lane. [Note 39]

4. ROW 1, as Depicted in the 2010 Plan

The 2010 Plan attempted to reconcile the discrepancies between the depiction of ROW 1 in the 1911 Plan and its depiction in the 1940 Land Court Plan. To that end, the 2010 Plan shows the passageway exactly as it is depicted in the 1911 Plan with a separate twelve foot way overlaid upon it, which is intended to represent the North Croffut Way, as shown on the 1940 Land Court Plan. This representation is a commendable effort to reconcile the various depictions of ROW 1, but is not perfect. For instance, the 1940 Land Court Plan makes it clear that the North Croffut Way extended westward to a point beyond the porch on the structure on Lot 9B, but the overlaid representation on the 2010 Plan shows the way as ending east of the western edge of said porch. Moreover, the overlaid representation on the 2010 Plan does not connect to Lot 2, as it clearly does on the 1940 Land Court Plan. Further, the representation of the North Croffut Way is farther north than it is depicted in the Land Court Case 17866 Plan.

In accordance with the above, I find that the right of way described in the Wickham Lot 2 Deed and depicted in the 1911 Plan represents ROW 1, and that the North Croffut Way is a separate right of way. I find that ROW 1 is twelve feet wide, and runs in a straight line from Center Hill Avenue along the southern boundaries of Lots 3, 4, and 5 to the southeastern corner of Lot 2. I find that, east of Lot 3B, ROW 1 encompasses the paved roadway now known as Maple Lane. I find that, by deed, ROW 1 is located entirely within Lots 3, 4, and 5, but that the actual location of the pavement forming Maple Lane appears to have shifted slightly to the south over time. Having determined the location of ROW 1, I must now turn to determining how (if at all) the parties may use it.

5. Defendants’ Right to Use ROW 1

Defendants have rights in ROW 1 through the chains of title to Lots 2 and 3A. Defendants’ rights in ROW 1 for the benefit of Lot 2 are evidenced by the Wickham Lot 2 Deed, and their rights in ROW 1 for the benefit of Lot 3A are evidenced by the Mary Perry Deed. Such rights were solely for utilities purposes. Subsequently, the Mary Allen Deed purported to augment the right to use ROW 1 (for the benefit of Lot 2) for access, but the grantor did not have those rights to convey. Likewise, while the Lot 3 Division Deed purported to expand ROW 1 to include access rights, the grantor lacked the authority to convey such rights.

Defendants’ right to use ROW 1 for utilities access has not been specifically challenged by Plaintiff. [Note 40] The question that remains, is whether Defendants have the right to use ROW 1 for access. Irrespective of the restrictions purportedly placed on ROW 1 by the Wickham Lot 2 Deed, the courts will often find an implied easement by necessity to have been created in circumstances in which, as here, a division of property previously held by a common grantor creates a landlocked property without access to public roadways. See, e.g., Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291-292, rev. denied, 445 Mass. 1109 (2005). This rule applies only, however, “if we can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one” Id. at 291.

The Wickham Lot 2 Deed described ROW 1 as an easement only for utilities access (despite the Park Deeds’ earlier contemplation that it would be used as a means of egress and ingress), but this, combined with the unfeasibility of transportation access over ROW 3, would have resulted in Parcel 2 being cut off from public roads. Nonetheless, because ROW 1 is specifically delineated as a limited right of way for utilities purposes only, it cannot reasonably be said that the grantor and grantee intended that ROW 1 would also include a right of access but simply forgot to provide such right. Standard rules of construction of conveyancing documents dictate that a deed’s express mention of one thing excludes all others that may be omitted. See, e.g., Gage v. Tirrell, 9 Mass. 299 , 305 (1864). Because the Wickham Lot 2 Deed expressly provided for utilities rights, its omission of access rights should be taken to be intentional. Thus, despite the fact that Lot 2 was rendered landlocked by the Wickham Lot 2 Deed, no implied right of necessity to travel over ROW 1 arose. Like Lot 2, when Lot 3 was deeded out of the Hall Tract in 1923 pursuant to the Mary Perry Deed, its right to use ROW 1 was limited to utilities access. The Lot 3 Division Deed purported to expand these rights to include transportation rights; however, as was the case with the Mary Allen Deed, the grantor of the Lot 3 Division Deed did not have those rights to convey. Nonetheless, for the same reasons as Lot 2, Lot 3 did not acquire an implied right of necessity to travel over that portion of ROW 1 east of its eastern boundary to access Center Hill Avenue.

In view of the foregoing, I find that Defendants have no deeded right to use ROW 1 for access for the benefit of either Lot 2 or Lot 3A, but they continue to have the right to use ROW 1 for utilities. [Note 41]

6. Plaintiff’s Right to Use ROW 1

Because the chain of title to Lot 9B does not contain any reference to ROW 1, Plaintiff’s right to use ROW 1 (if any) would come via the chain of title to Lot 3B, which succeeded to Lot 3’s right to use ROW 1 east of its eastern boundary when Lot 3 was subdivided pursuant to the Lot 3 Division Deed. No subsequent conveyance has extinguished this right to use ROW 1 east of Lot 3B. However, as was the case (discussed above) with Lot 3A, Lot 3B’s deeded right to use ROW 1 included only utilities rights, and not a right of access. Moreover, no such right of access can reasonably be found to have arisen by implication -- as discussed above.

In view of the foregoing, I find that, because Plaintiff owns Lot 3B, he may use that portion of Lot 3B burdened by ROW 1, but such use may not impede others’ right to use ROW 1. I further find that Plaintiff today retains the right to use the portion of ROW 1 east of Lot 3B, but such use is limited to utilities use only -- and only for the benefit of Lot 3B.

7. The Parties’ Access Rights in ROW 1 East of Lot 3B

Per the foregoing discussion, I find that neither party has any deeded right to use ROW 1 east of Lot 3B (i.e., Maple Lane) for access purposes. It seems that the property owners in this area have, for over one hundred years, simply assumed that all parties had the right to use Maple Lane to access public roads. However, the evidence adduced by the parties reveals that, in reality, no such right ever appears to have actually existed by deed.

An argument could be made that the parties have obtained prescriptive rights to use Maple Lane (as they, and their predecessors in title have done for decades, apparently without objection), but neither party has raised that issue. In any event, for the court to rule on such a question, all surrounding landowners whose properties would be burdened by such prescriptive rights (at minimum, the owners of Lots 4 and 5, but perhaps also the owners of Lot 6, 9 Maple Lane, and 9A Maple Lane) would need to be a part of the litigation. As such, the court declines to rule on whether either party has any prescriptive right to use ROW 1 east of Lot 3B (i.e., Maple Lane) for access.

B. ROW 2

As discussed above, ROW 2 was established in 1941 by the Lot 3 Division Deed as a new easement for the purpose of providing access (but no utilities rights) to and from Lot 3A. ROW 2 includes an east-west portion within Lot 3B along its northern boundary and a north-south portion within Lot 3B along its eastern boundary.

Plaintiff argues that the Lot 3 Division Deed's language “along the northerly part of the southerly portion of Lot #3” means that the east-west portion of ROW 2 was intended to be located on the southern twelve feet of Lot 3A, as opposed to the northern twelve feet of Lot 3B. This interpretation would be plausible only if “along” is read to mean “adjacent to”, rather than as “on the same area of land.”

Plaintiff’s argument here is unavailing, as the Lot 3 Division Deed uses the same “along” language with respect to the north-south portion of ROW 2. Were “along” to be understood to mean “adjacent to”, rather than “on the same area of land”, this would entail that the north-south portion of ROW 2 would be located on property not conveyed by the Lot 3 Division Deed and not owned by the grantor of that deed, and thus would be null and void. The court will not adopt such a reading of “along”. Thus, I find that the entirety of ROW 2 is located on Lot 3B.

I find that Defendants have the right to use ROW 2 for the benefit of Lot 3A for access -- but only across Lot 3B, not onto Maple Lane (since, as noted above, Defendants’ rights in ROW 1 do not include access rights). [Note 43] Those rights were established in the Lot 3 Division Deed, and no subsequent deed has extinguished them. I further find that such rights do not include the right to install fencing across ROW 2 on Lot 3B; thus, to the extent that the fence installed by Defendants extends onto ROW 2, it must be removed. Finally, I find that Defendants’ right to use ROW 2 does not extend to Lot 2.

I find that Plaintiff has a right to use the areas encompassing ROW 2 (since they are located entirely within the boundaries of Lot 3B, which Plaintiff owns), but that Plaintiff’s use of those areas is limited to such use that does not impede Defendant’s ability to use ROW 2. E.g., Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967) (servient owner retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner).

C. ROW 3

The first specific description of ROW 3 in the chains of title of the subject properties is in the Wickham Lot 2 Deed, which did not specify who (other than the owner of Lot 2) ROW 3 was intended to benefit, but rather stated only that the property conveyed thereby was “subject to the rights of all persons entitled to use the same as part of said passageway” without specifying who such persons (other than the grantor) were. [Note 44] The Wickham Lot 2 Deed describes ROW 3 as a ten foot right of way “as shown on [the 1911 P]lan”. The 1911 Plan depicts ROW 3 as a ten foot wide north- south right of way located half on Lot 2 and half on Lot 3 running north from land labeled “Estate of F. Crofutt” to the northern boundary line of both Lots 2 and 3. The Mary Perry Deed later confirmed that ROW 3 also ran on Lot 3, as depicted on the 1911 Plan, and that ROW 3 benefitted Lot 3. Both the Wickham Lot 2 Deed and the Mary Perry Deed state that the use of ROW 3 is limited to utilities access; thus, to the extent that future conveyances purported to extend access to include travel rights, such expansion was ineffective. In sum, while ROW 3 was known to burden Lots 2 and 3, it is not known who (other than these two properties) it was originally intended to benefit. [Note 45]

I find that ROW 3 encompasses the eastern five feet of Lot 2, and the western five feet of Lots 3B and 3A. Defendant Tomas Nemira owns Lot 2 and Lot 3A, so I find that Defendants have the right to use the portions of ROW 3 on those properties, but such use may not impede the rights of others to use ROW 3. Because, pursuant to the Wickham Lot 2 Deed, Lot 2 was granted the benefit of ROW 3, I find that Defendants have the right to use the portion of ROW 3 located on Lot 3B. However, such use is for utilities access only, and does not include the right to install a fence across ROW 3. Thus, I find that, to the extent that the fence installed by Defendants extends onto the portion of ROW 3 situated on Lot 3B, it must be removed.

Conversely, since Plaintiff owns Lot 3B, I find that he has the right to use the portion of ROW 3 located on that property, but such use may not impede the rights of others to use ROW 3. Additionally, by means of the Mary Perry Deed, Lot 3B carries the right to use ROW 3 for utilities access onlyfor benefit of that parcel alone; nothing before the court indicates that the benefit of ROW 3 runs to Lot 9B. As such, I find that Plaintiff has no right to use any portion of ROW 3 located on Lot 2 or Lot 3A for the benefit of Lot 9B, and that Plaintiff has no right to use ROW 3 for parking and/or turning around cars. [Note 46]

Plaintiff’s Rights by Adverse Possession and/or Prescription

A. The Perry Adverse Possession Area

Plaintiff argues that he has acquired title to the southeastern corner of Lot 2 (i.e., the Perry Adverse Possession Area) by adverse possession. On the 2010 Plan, the area claimed by Plaintiff is located between what is described as a “Ledge Outcrop,” the northern border of Lot 9B, and the western border of Lot 3B.

A “party claiming adverse possession must establish that they hold ‘such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.’” Everett v. Tavares, 06 MISC 320991, 18 LCR 235 , 237 (Mass. Land Ct. Mar. 5, 2010) (quoting LaChance v. Rubashe, 301 Mass. 488 , 491 (1938)); see also Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (the court “must examine the nature of the occupancy in relation to the character of the land.”). The time period that such control must be held is twenty years, which is measured up to the commencement of the action to establish adverse possession. See G. L. c. 260, § 22. During this period, “[t]he use of the land must be continuous, as ‘acts of possession which are few, intermittent, and equivocal’ are not satisfactory to establish title by adverse possession.” Everett, 18 LCR at 235 (quoting Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847, rev denied, 442 Mass. 1112 (2004)). However, a claimant who has not made continuous use of the property may satisfy the statutory period by tacking periods of successive adverse use by different persons provided there is privity between the persons making the successive uses. E.g., Long v. Woods, 2014 WL 4412606, at *9 (Mass. Land Ct. Sept. 9, 2014).

The case at bar was commenced on December 21, 2011, so, in order to claim adverse possession over the Perry Adverse Possession Area, Plaintiff must demonstrate continuous adverse use thereof since December 21, 1991. Plaintiff acquired title to the Perry Property on February 9, 1996, and he alleges that the same activities that he claims he has performed on ROW 1 (i.e., landscaping, maintenance, mowing, etc.) during the period in which he has owned the Perry Property also extended into the Perry Adverse Possession Area. However, even if this were true, because his occupancy of the Perry Property has been for less than twenty years, Plaintiff can establish adverse possession only by tacking his use period to those of his predecessors in interest.

However, Plaintiff proffered no evidence to suggest that his predecessors in title to the Perry Property ever adversely possessed the Perry Adverse Possession Area. Not only is there no allegation that Plaintiff’s predecessors in interest intended to adversely possess this area, there is no clear indication of a continuous use of the Perry Adverse Possession Area prior to Plaintiff’s ownership of the Perry Property. In fact, LeTourneau, who owned the Perry Property just prior to Perry, testified that she essentially abandoned the property in or around November of 1994 when she was incarcerated. Thus, even if Plaintiff’s predecessors in interest intended to (and did) adversely possess the Perry Adverse Possession Area, there is a break in adverse use from late 1994 to early 1996, which prevents Plaintiff from establishing continuous adverse use for the requisite twentyyear period.

In view of the foregoing, I find that Plaintiff has not satisfied either the twenty year period or the actual use requirement to gain title by adverse possession to the Perry Adverse Possession Area.

B. The Parking Areas

Plaintiff argues next that he should be granted a prescriptive easement for purposes of parking and turning around vehicles on the Nemira Property in the Parking Areas.

The above-stated requirements pertaining to acquisition of title to property by adverse possession apply also to prescriptive easements, with the notable exception that “[t]he finding of lack of exclusivity does not preclude the acquisition of an easement by prescription.” Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976); see also Labounty v. Vickers, 352 Mass. 337 , 349 (1967) (“It is not necessary . . . for one claiming an easement by prescription to show that his use has been ‘exclusive’ in that sense . . . [; rather, all one] must show [is] that his use has been exclusive in the sense that he relies on his own use or those under whom he claims and not on the use by third parties.” (quotation omitted)). And, one’s actual use need not manifest itself through some form of permanent structure, so long as the use is in a manner consistent with that of typical ownership. E.g., Kiesinger v. Frankelton, 10 MISC 420652, 20 LCR 114 , 116 (Mass. Land Ct. Mar. 8, 2012) (citing Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 (Table), at *1 (2008) (activities typical of normal ownership may constitute actual use.)); LaChance, 301 Mass. at 491.

An easement by prescription can only be established over a well-defined and specific location. E.g., Stone v. Perkins, 59 Mass. App. Ct. 265 , 268 (2003). And, the measure of any prescriptive right granted depends upon the “character, nature, and extent of the actual use made”. Carson v. Brady, 329 Mass. 36 , 42 (1952). Title gained by prescription passes by deed, so Plaintiff may have an easement right by way of a prescriptive period prior to his taking ownership of the Perry Property. E.g., Keith v. Kennard, 222 Mass. 398 , 399 (1916).

As was the case with Plaintiff’s claim of adverse possession of the Perry Adverse Possession Area, because Plaintiff has not owned the Perry Property for twenty years, he could not establish his entitlement to a prescriptive easement over the Parking Areas unless his predecessors in interest also used those areas for parking and turning around vehicles.

With respect to the Northern Parking Area, Williams (who never owned the Perry Property) testified that he parked in the Northern Parking Area “numerous times”, but that he could never remember any prior owner of the Perry Property, including the Lawtons (the owners of the Perry Property from 1946 through 1975) parking there. Muccini also testified as to his personal usage of the Northern Parking Area for parking, but he too never owned the Perry Property; Muccini also offered no reliable allegation that any prior owner of the Perry Property ever used the Northern Parking Area. [Note 47] LeTourneau, the previous owner of the Perry Property, testified that she did not personally use the Northern Parking Area, except for occasionalparking for contractors, and that this was done with the permission of the owners of the Nemira Property. As noted above, LeTourneau abandoned the Perry Property in or around November of 1994.

With respect to the Western Parking Area, Williams testified that the Lawtons used the Western Parking Area for parking “daily” throughout the summer in the 1970s, and regularly until 1983 as well. Muccini testified that he regularly observed the Western Parking Area being used for both parking and turn-around purposes, but he could not be certain whether residents of Lot 9B did so. As a result, neither of these witness provided a sufficiently precise time frame to establish that a twenty year period of use had been established by prior owners of Lot 9B. Moreover, LaTourneau testified that she never used the Western Parking Area for parking or turning around.

In view of the foregoing, I find that Plaintiff has not established actual use for the requisite twenty year period to gain an easement by prescription over the Northern Parking Area or the Western Parking Area for parking and turn-around purposes.

* * * * * * * * * * * * * * * *

In conclusion, the rulings of the court are as follows:

(a) Defendants have the right to use the entirety of ROW 1 for utilities for the benefit of both Lot 2 and Lot 3A, but have no right to use any portion of ROW 1 for access;

(b) Plaintiff has the right to use the portion of ROW 1 east of Lot 3B for utilities only for the benefit of Lot 3B only, but has no right to use any portion of ROW 1 for access; he may use the portion of ROW 1 located on his property, but such use shall not impede the rights of any party to use ROW 1; [Note 48]

(c) Defendants have the right to use ROW 2 for access on Lot 3B for the benefit of Lot 3A only, but such use does not include the right to install fencing across ROW 2 on Lot 3B; as such, to the extent that Defendants’ fence extends onto ROW 2 on Lot 3B, it shall be removed;

(d) Plaintiff has a right to use the area encompassing ROW 2 (which is located entirely within the boundaries of Lot 3B), but his use of those areas shall not impede Defendants’ right to use ROW 2; [Note 49]

(e) Both parties have the right to use ROW 3 for utilities only, and not for any other purpose, including access, parking, and turning around; as such, to the extent that Defendants’ fence across ROW 3 extends into the portion thereof lying on the Perry Property, it shall be removed; [Note 50]

(f) Plaintiff has not satisfied either the twenty year period or the actual use requirement to gain title by adverse possession to the Perry Adverse Possession Area; and,

(g) Plaintiff has not established his entitlement to an easement by prescription for parking and turn-around purposes in the Northern Parking Area or Western Parking Area.

In view of the foregoing rulings, it would be in the best interests of both Defendants and Plaintiff to come to some agreement among themselves as to their access to and from their properties, as well as the location where they and their guests can park and turn around cars. On Plaintiff’s side, it would appear that Plaintiff has no suitable location (other than on Lot 9B or on the portion of Lot 3B not burdened by ROW 2) where he can park or turn around his car. This was a situation of Plaintiff’s own making, as his development of the Yard had the effect of replacing what was previously used as a parking area with landscaping. If Plaintiff did so in reliance upon an assumption that his neighbors would allow him to use their property for parking in perpetuity without payment therefor, this assumption was clearlyunreasonable. On Defendants’ side, however, it would seemthat Defendants are without a means of access across the Perry Property for the benefit of Lot 2, the prospective location of the residence on the Nemira property.

In sum, both parties have an incentive to negotiate a way forward within the parameters outlined by this Decision. [Note 51] If, as Plaintiff claims, Defendants are truly making no beneficial use of the areas that Plaintiff seeks to be able to use for parking and turning around, there would seem to be no impediment to the parties negotiating an easement or license for such use, which could be conditioned upon Plaintiff’s issuance of an easement extending the right to use ROW 2 for access for the benefit of Lot 2. If the parties are disinclined to do so, Plaintiff would be left with the option of redeveloping the Yard so as to include room for parking, and Defendants would have to find an alternative way to access Lot 2.

Having noted the foregoing, a cursory review of the docket of this case quickly reveals significant friction between the parties in their dealings with each other. Nothing in this court’s Decision can have any effect on the parties’ willingness to work together with each other as neighbors. However, what this Decision can do is to serve as a starting point around which the parties should begin to work together in such a way that they can both use and enjoy their properties in harmony with each other. Should the parties desire, they may contact the court’s sessions clerk to either set up a post-judgment status conference to discuss possible avenues for the settlement of their dispute in view of this Decision or to obtain the contact information for local mediation services who may be helpful in directing the parties towards an amicable settlement.

Judgment to enter accordingly.