Annique L. Dunning and Claudine M. Hodges own a house in Orleans, Massachusetts; their mother Jeanne O. Dunning holds a life estate and lives at the house. Their access to the house is by a private way and then by a dirt drive that runs through the property owned by Geoffrey S. and Tryntje Larson, shown on the plan attached as Exhibit A. This drive appears on plans of the area going back to the 1950s and has been used for many years, but it is not a private way. The Dunnings and the Larsens dispute what rights the Dunnings have, if any, in this drive. After trial, I find that the Dunnings have no record easement to use the drive, and therefore no right to maintain utilities under the drive pursuant to G.L. c. 187, § 5. They do, however, hold prescriptive easements both to use the drive for access to their property and to maintain the utilities buried underneath.
Annique L. Dunning, f/k/a Annique Dunning, Claudine M. Hodges, f/k/a Claudine Dunning, and Jeanne O. Dunning filed their verified complaint on October 9, 2012, naming as defendants Geoffrey S. Larsen and Tryntje Larsen. In the verified complaint, the plaintiffs seek to establish rights in a path or lane that leads from a private way to their property in Orleans, Massachusetts. The verified complaint has six counts: Count I, for prescriptive easement for underground utilities; Count II, for easement by necessity; Count III, for prescriptive easement for access; Count IV, for recovery of costs and legal fees per G.L. c. 187, § 4; Count V, for a declaratory judgment that the plaintiffs have the right to use the path or lane; and Count VI, for a declaratory judgment that the path or lane is a private way which the plaintiffs have the right to use for vehicular access and utilities. The defendants filed their Answer on November 27, 2012. A case management conference was held on December 20, 2012, at which the Plaintiffs Motion for Approval of Memorandum of Lis Pendens was allowed. The Plaintiffs Motion to Amend Verified Civil Complaint, making certain minor changes to the verified complaint, was allowed on June 13, 2013.
A pretrial conference was held on November 20, 2013. A view was taken on May 14, 2014. A trial was held May 15 and 16, 2014. The court heard testimony from Jeanne Dunning, Karen Sharpless, Annique Dunning, Charles F. Savage, Claudine M. Hodges, Paul S. Daniels, Ellsworth E. Brown, Jr., Margaret Begg, Martin Rich, Dan Ojala, James H. Quirk, Jr., and Geoffrey Larsen. Exhibits 1 through 62, 64 through 67, 69 through 72, and 74 through 77 were marked.
Defendants Requests for Finding of Facts and Rulings of Law and the Post-Trial Memorandum by Defendants Geoffrey S. Larsen and Tryntje Larsen were filed on November 25, 2014. Plaintiffs Post-Trial Brief with Request for Findings of Fact and Rulings of Law was filed on November 28, 2014. The court heard closing arguments on December 18, 2014, at which time the plaintiffs waived Count II of the verified complaint. The court took the matter under advisement. The Plaintiffs Memorandum Following Oral Arguments was filed on February 18, 2015; the Defendants Response to Plaintiffs Memo Following Oral Argument was filed on February 26, 2015. This Decision follows.
Findings of Fact
Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Annique L. Dunning, f/k/a Annique Dunning, and Claudine M. Hodges, f/k/a Claudine Dunning are the record owners of a parcel of land located in the Town of Orleans, Barnstable County, Massachusetts, known and numbered as 23 Quail Hill Lane (the Dunning Property) by a deed from their parents, William G. Dunning and Jeanne O. Dunning dated November 16, 2005 and recorded in the Barnstable County Registry of Deeds (registry) at Book 20501, Page 118 on November 23, 2005, that also reserved a life estate in the Dunning Property for Jeanne O. Dunning. Jeanne O. Dunning resides at the Dunning Property. Tr. I-29-30; Exhs. 5, 77.
2. Geoffrey S. Larsen and Tryntje Larsen are the record owners of and reside at a parcel of land located in the Town of Orleans, Barnstable County, Massachusetts, known and numbered as 22 Quail Hill Lane (the Larsen Property) by a deed from Neil Lewis dated April 1, 1997 and recorded in the registry at Book 10733, Page 171 on May 5, 1997. Tr. II-237; Exhs. 18, 77.
3. Abutting the southern bound of the Larsen Property and the western bound of the Dunning Property is a parcel owned by Arthur and Claire Maher (the Maher Property). View; Exhs. 11, 54.
4. Abutting the eastern bound of the Larsen Property and the northern bound of the Dunning Property is a parcel owned by the Margaret and Robert Begg (the Begg Property). View; Exhs. 29, 54.
5. A dirt path or way (the Drive) runs along the entire eastern bound of the Larsen Property from the northern edge of the Maher Property, past a portion of the Dunning Property for 14.30 feet, and then along the western bound of the Begg Property to a private way called Quail Hill Lane (formerly Coffin Way). The owners of the Dunning Property use the Drive for access to and from their property to Quail Hill Lane, which leads past the Begg Property, other unrelated properties, and the Universal Lodge to a public way. Tr. II-170-171; View; Exhs. 54, 60, 61.
6. In 1938, the Estate of George Southward conveyed to Henry R. Coffin title to land that included what is now the Larsen, Dunning, Maher, and Begg Properties by a deed dated November 5, 1938 and recorded in the registry at Book 562, Page 73. The deed was given subject to a right of way for the use of the Bonnell Brothers, the owners of a part of the cedar swamp laying south of the above described premises to pass and repass to and from their swamp over the above described premises where it is most convenient and least damage to the road. This deed included a grant of the right to pass and repass over [the grantors] other land from the above described premises along the east side of the Grantors land and the west side of the land of Edgar Snow, over the land of Universal Lodge Orleans to the Town Road. Exh. 2.
7. By a deed dated January 13, 1940 and recorded in the registry at Book 562, Page 311, Henry R. Coffin conveyed a parcel that included what is now the Maher and Larsen Property to George E. Rogers (the 1940 Rogers Deed). The parcel was conveyed [t]ogether with a right of way from the Northeasterly corner of the herein described premises over my other land to and from the Main Highway, as presently used by the abutting owners and as previously laid out. By a deed dated the same day and recorded in the registry at Book 562, Page 312 George E. Rogers conveyed what is now the Maher and Larsen Properties, at the time consisting of a single parcel, to his sister Anna M. Rogers. This parcel was conveyed [t]ogether with a right of way from the Northeasterly corner of the above described premises to and from the Main Highway as presently laid out. Exhs. 7, 8, 50.
8. By a deed dated June 8, 1942 and recorded in the registry at Book 593, Page 102 Henry R. Coffin conveyed what is now the Dunning Property to Charles Warren Daniels (the 1942 Daniels Deed). The parcel was conveyed [t]ogether with a right of way between the granted premises and Main Street, by the most direct route, over land of the grantor. Exhs. 3, 50.
9. A plan entitled Plan of Land in Orleans, Mass. as surveyed for Henry R. Coffin Oct. 1942. Scale 50 Feet to an Inch Arthur L. Sparrow, Engineer South Orleans, Mass. Bearings are as of Jan. 1940 was recorded in the registry at Plan Book 67, Page 131 (the 1942 Coffin Plan). The 1942 Coffin Plan includes what is now the Larsen, Dunning, Begg, and Maher Properties. The Dunning Property is shown as a parcel entitled 54/100 Acres +/- to be Charles W. Daniels by corrective deeds. The Larsen and Maher Properties are shown as a single parcel of Anna M. Rogers. The 1942 Coffin Plan depicts a vehicle track running from Main Street past the Universal Lodge and onto the Larsen Property, just south of a concrete bound. It does not depict the Drive. Exh. 50.
10. By a deed dated July 3, 1950 and recorded in the registry at Book 756, Page 130, Anna M. Rogers, now Anna M. Daniels, conveyed the portion of her property consisting of what is now the Larsen Property back to Henry R. Coffin (the 1950 Coffin Deed). The 1950 Coffin Deed provides that [s]aid premises are conveyed subject to all legal easements of record. By a deed dated the same day and recorded at the registry at Book 756, Page 131, Charles W. Daniels conveyed the northerly 70 by 100 foot section of his land that included what is now the Dunning Property to Henry R. Coffin. This northerly section is now part of the Begg Property; the section remaining with Charles W. Daniels is now the Dunning Property. Exhs. 12, 46, 54, 67; Tr. II- 133-134, 137; View.
11. In or around October, 1951, a plan was filed with the Orleans Planning Board entitled Proposed Subdivision of Lot A in Orleans, Mass. Scale 50 feet to an inch Arthur L. Sparrow Co. South Orleans, Mass. (the 1951 Subdivision Plan). The 1951 Subdivision Plan shows the Larsen and Maher Properties as a single parcel formerly owned by Anna M. Rogers Daniels. It divides that single parcel into the current configurations of the Larsen and Maher Properties. It shows the Larsen Property as Henry R. Coffin (1950). It shows the Maher Property as lot A, Lot to be conveyed to Anna F. Coffin et al. It shows the Dunning Property as owned by C. W. Daniels. It shows as an existing way the vehicle track depicted on the 1942 Coffin Plan. It shows a Proposed Way, drawn in red, running within and along the eastern bound of the Larsen Property. This Proposed Way is in the location of the Drive as claimed by the Dunnings. At the bottom of the 1951 Subdivision Plan is a handwritten notation: Is a 10-foot way from existing way permissible? The plan also bears the notations Tentatively approved by the Orleans Planning Board and Tentative approval given Dec 7th 1951. Tr. I- 174-175, 177-178, 184; Exh. 65; View.
12. A plan entitled Plan of Land in Orleans, Mass. as made for Henry R. Coffin May 1953 Scale: 1 inch = 50 feet Arthur L. Sparrow Co., Engineers South Orleans, Mass. was recorded in the registry on June 29, 1953 at Plan Book 110, Page 95 (the 1953 Coffin Plan). The 1953 Coffin Plan shows the Dunning Property as Charles W. Daniels, the Larsen Property as Henry R. Coffin, and the Maher Property as Anna F. Coffin et al. The Larsen and Maher Properties are shown in the configurations as subdivided in the 1951 Subdivision Plan. The 1953 Coffin Plan subdivides the land lying to the east of the Dunning and Larsen Properties, including what is now the Begg Property, into lots 1 through 6. It depicts a private way named Coffin Lane running from the public way, past the Universal Lodge, to a bound at the northeast corner of the subdivided lot (designated as lot 5) lying just east of the Larsen Property. A way, depicted by two dotted lines, is shown running across this lot 5 onto the Larsen Property at a point just north of the concrete bound that is also shown on the 1942 Coffin Plan. It also shows the Drive as a way in the location shown on the 1951 Subdivision Plan. Tr. II-170; Exh. 51; View.
13. Jeanne Dunning moved from Ireland to Tonset Road in Orleans in 1952, when she was twelve. She lived near the various parcels at issue, and was friends with Kathy Rogers, the daughter of George E. Rogers. In the period from 1952 to 1958 or 1959, she regularly rode her bike along Coffin Lane and down the Drive to the house that George Rogers had built on the Maher Property. She also observed the Rogers family using the Drive. The traveled, dirt portion of the Drive was wider at that time than it is now. Tr. I-31-33, 35-36, 41-42, 47.
14. Paul Daniels, the son of Charles Warren Daniels, was born in 1944. He lived the first six years of his life in Anna Rogerss house shown on the 1942 Coffin Plan in the area labeled to be Anna M. Rogers, northerly of the vehicle tracks. He then moved to a house on Pond Road, across the wetland from the Dunning Property, and has lived there ever since. During Mr. Danielss childhood, his father used the Dunning Property for farming. It had a goat barn, a chicken barn, and a strawberry garden. He recalls seeing the Drive from when he was three or four years old. He recalls hay for goats being brought down the Drive on trailers. When he was 12, he rode with his older brother who was using the Drive while learning to drive. Later, he drove a car himself down the Drive. The Drive at those times consisted of sand and dirt. Tr. II-6-9, 14-19, 22; Exh. 50.
15. Mr. Daniels recalls his father using the Drive to haul cedar trees from the wetland on and behind the Dunning Property to a company in Lakeville. Tr. II-19-20.
16. In the 1950s, Henry Coffin used the property that is now the Begg Property and the property to the east of that parcel as part of an electric business. He stored trucks and utility poles on this land, and maintained several large open huts for the storage. Trucks hauling poles for his business regularly used Coffin Lane for access to the parcels. Coffin ceased operating his business in the 1964 when this property was sold to Richard Rich. Mr. Rich sought to use the property to store cranberry boxes, but by 1969 decided to resubdivide and develop the property for residential lots with his son Martin Rich. Tr. I-33-35, II-9-14, 97-100.
17. Mr. Daniels recalls that it was easier to use the Drive than to cross over the property on which his father operated his electric pole business, because that area had a hill. It sloped down from Coffin Lane to the wetlands south of what is now the Dunning Property. Tr. II-25-26, 106-108.
18. Henry Coffin passed away on December 17, 1959. Anna F. Coffin, the widow of Henry Coffin, conveyed all of Henry's remaining land, including the Larsen Property and the Begg Property, to Myrtle G. Joyce et al. by a deed dated December 12, 1961 and recorded in the registry at Book 1141, Page 234. The conveyance was made subject to and with the benefit of rights of way and easements of record. Exhs. 13, 19, 51.
19. By a deed dated December 18, 1963 and recorded in the registry at Book 1230, Page 491, Myrtle G. Joyce, et al., conveyed all of their land to Richard F. Rich and Ruth D. Rich, [s]ubject to and with the benefits of rights of way and easements of record. Exh. 14.
20. Richard F. Rich and Ruth D. Rich conveyed the Larsen Property to Clement P. Ozon and Louise L. Ozon, Jeanne Dunning's parents, by a deed dated October 6, 1964 and recorded in the registry at Book 1275, Page 241 (the 1964 Ozon Deed). This deed described the property, in part, by reference to the 1953 Coffin Plan that showed the Drive. It also provided:
Premises are conveyed with a right of way over Coffin Lane, in common with others, together with a 15 foot right of way from Coffin Lane over Lot 5 to the northeasterly portion of the conveyed premises, and subject to and with benefits of rights of way and easements of record. Exh. 15; Tr. I-30.
21. The Ozons constructed a house on the Larsen Property in the winter of 1964-1965 and moved into the house in 1965. The Town of Orleans treated their house as being on Coffin Lane. Jeanne Dunning and her family stayed at her parents house regularly in the summers and on holidays from 1965 until she and her husband built the house on the Dunning Property in 1979. Tr. I-36, 47, 65-68, 85-86, 122, 133-134; Exhs. 47, 48, 64.
22. By a deed dated November 12, 1964 and recorded in the registry at Book 1281, Page 103, Anna Daniels (formerly Anna Rogers) conveyed the Maher Property to George Rogers. This deed provides that [c]onveyed herewith and as appurtenant to the land above described, is an easement of way to be used in common by the Grantee and his successors in title for all purposes for which ways are commonly used, running to and from the County Road known as Main Street. By a deed dated April 28, 1967 and recorded in the registry at Book 1364, Page 497, George Rogers conveyed the Maher Property to Bright C. Cooper and Elizabeth B. Cooper. This deed repeated the easement of way in the 1964 deed. As discussed, Bright Cooper conveyed the Maher Property to the Mahers by a deed dated October 26, 1968 and recorded in the registry at Book 1122, Page 428, which also repeated the easement of way. Tr. II-197-204; Exhs. 9, 10, 11, 52.
23. A plan entitled Plan of Land in Orleans, Mass. to be conveyed to Anna F. Coffin et al. Jan. 1952 Scale 50 feet to an inch Arthur L. Sparrow Co. South Orleans, Mass. was endorsed as approved by the Orleans Planning Board on February 7, 1967 and recorded in the registry on March 17, 1967 at Plan Book 209, Page 105 (the 1967 Coffin Plan). According to the minutes of the Orleans Planning Board, the 1967 Coffin Plan is a final, duplicate version of a 1952 plan that was lost. It appears to be a finished version of the 1951 Subdivision Plan. The 1967 Coffin Plan shows the subdivision of the Larsen Property and the Maher Property as on the 1951 Subdivision Plan. The Larsen Property is shown as Henry R. Coffin and the Maher Property is shown as lot A1 Area: 55/100 acres +\-. It states that Record Owner of A1 is Anna M. Daniels. The Dunning Property is shown as C. W. Daniels. The 1967 Coffin Plan shows the same existing way from the public way past the Universal Lodge as shown on the 1951 Subdivision Plan, except that this way enters the Larsen Property just north of the concrete bound. It shows the Drive, marked as way, as 10 feet wide, in the same location as shown on the 1951 Subdivision Plan and the 1953 Coffin Plan. Exhs. 51, 52, 65, 66, 77; Tr. I-188-189.
24. A plan entitled Re-Subdivision of Lots 2 3 4 & 5 shown on plan filed in Plan Bk. 110 Pg. 95 [the 1953 Coffin Plan] Land in Orleans as made for Richard F. Rich Scale: 1 inch = 50 feet December 1969 Arthur L. Sparrow Co., R.L.S. South Orleans, Mass. (the 1969 Rich Plan) was endorsed as approved by the Orleans Planning Board on December 23, 1969 and recorded in the registry on February 20, 1970 at Plan Book 234, Page 157. The 1969 Rich Plan reconfigured lots 3, 4, and 5 as shown on the 1953 Coffin Plan that lay to the east of the Larsen and Dunning Properties. It created, as lot 5A, the final configuration of the Begg Property. It extended what was shown as Coffin Lane on the 1953 Coffin Plan into a cul-de-sac to the north of the Begg Property and abutting the northeast corner of the Larsen Property so that lot 5A, the Begg Property, would have legal frontage. It shows the Drive. It shows the Larsen Property as owned by Clement P. Ozon et ux. and the Dunning Property as owned by Charles W. Daniels, Inc. Exhs. 53, 77; Tr. II-105-106.
25. Richard Rich conveyed the Begg Property to Barry H. Wheeler and Nancy C. Wheeler by a deed dated February 20, 1970 and recorded in the registry at Book 1471, Page 820 (the 1970 Wheeler Deed). This deed provides that the property is conveyed subject to an easement for the purposes of installing and maintaining utilities, such as water, electricity, gas, telephone, etc., for the mutual benefit of the residents of Coffin Lane and conveyed together with a right of way over Coffin Lane as shown on [the 1969 Rich Plan], in common with all others legally entitled thereto. Exh. 22.
26. The Wheelers conveyed the Begg Property to Ellsworth E. Brown, Jr. and Alice L. Brown by a deed dated June 3, 1971 and recorded in the registry at Book 1513, page 582. Exh. 23.
27. Mr. Brown and his wife moved in at that time. He recalls that the private way had been called Coffin Lane, but that the name was changed to Quail Hill Road around the time he bought the property. At that time, the Drive was wide enough for any single vehicle. During the time he lived there he observed cars and an oil truck using the Drive to go to the Maher Property. Mr. Brown moved out of his house in 1983, and sold it in 1984. Tr. II-34-38, 48-49, 52-53, 56- 57.
28. By a deed dated April 14, 1971 and recorded in the registry at Book 1506, Page 101, Charles Warren Daniels conveyed the Dunning Property to William G. Dunning and Jeanne O. Dunning, husband and wife. The deed repeated the easement in the 1942 Daniels Deed, stating that the Dunning Property is conveyed [t]ogether with a right of way between the granted premises and Main Street, by the most direct route, over land now or formerly of said Henry R. Coffin, and over Coffin Lane. Exhs. 4, 77.
29. Between 1971 and 1978, the Dunnings drove down the Drive to the Dunning Property on several occasions, but more often walked from the Ozons house on the Larsen Property down the Drive to the Dunning Property. Tenants at the Maher Property drove down the Drive. Tr. I-131-133.
30. The Dunning Property was vacant when the Dunnings bought it. In August 1974, the Orleans Planning Board and Building Inspector suggested that the Dunnings seek a special permit from the Orleans Board of Appeals to allow them to build on a lot with only 14.3 feet of frontage in a zone where the minimum frontage was 120 feet. This frontage was on the Drive. Their application stated that their property was on Quail Hill Road. The Board of Appeals issued the special permit on September 11, 1974. Exhs. 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41; Tr. I- 36-38.
31. The Dunnings obtained a disposal works construction permit on or about June 24, 1977. Paul Daniels excavated the area for the foundation and installed the septic system in 1977. In doing this work, he brought a backhoe excavator, a bulldozer, and trucks measuring 12 feet wide from side mirror to side mirror down the Drive without any trouble. Exh. 42; Tr. I-38-39, 133, II-27-28, 30-32.
32. The Dunnings obtained a building permit on or about June 29, 1978. They constructed the current house on the Dunning Property in 1979, obtaining a certificate of occupancy on September 1, 1979. Exhs. 43, 44; Tr. I-39-40; View.
33. At the time of the construction of the house in 1979, the Dunnings had utilities installed under the Drive or under areas next to the Drive. Underground water, electric, telephone, and cable lines were installed. Charles Savage, of the Orleans Water Department, excavated a two-foot wide, 4-5 feet deep trench in the Drive using a backhoe, installed a water pipe, and covered the trench. The trench began at a water main near the telephone pole in Coffin Lane just north of the Drive and ran close to the easterly edge of the Drive as shown on the 1953 Coffin Plan, near the bound of the Begg Property. The electric and telephone lines were installed at the same time as the water line. Tr. I-42-43, 51-55, 67-68, 207-209, 217, 220-221; Exhs. 48, 49; View.
34. The electric meter for the Dunnings electrical service was installed on the Dunning Property near the Drive. It remains in the same location, and is visible from the Drive. Tr. I-86-89, 164-166; Exh. 71; View.
35. The Dunnings did not ask permission of the Ozons, the then owners of the Larsen Property, for permission to install the utilities under the Drive. They believed that they had the right to install the utilities, as they believed that the Drive was an extension of Coffin Lane, and that the Larsen Property was bounded by the western edge of the Drive. Tr. I-43-44, 56-57.
36. Louise Ozon conveyed the Larsen Property to Neil Lewis and Genevieve Lewis, her son-in-law and daughter, by a deed dated November 29, 1979 and recorded in the registry at Book 3022, Page 300. This deed repeats the grant and reservation in the 1964 Ozon Deed:
Premises are conveyed with a right of way over Coffin Lane, in common with others, together with a 15 foot right of way from Coffin Lane over Lot 5 to the northeasterly portion of the conveyed premises, and subject to and with benefits of rights of way and easements of record. Exh. 17; Tr. I-30.
37. After mesne conveyances, Ellsworth Brown and his second wife, Cynthia Kay Brown, conveyed the Begg Property to Andrew Lane by a deed dated August 1, 1984 and recorded in the registry at Book 4197, Page 220. Andrew Lane bought the property for his niece Margaret Begg; she and her husband Robert rented the property from him beginning in 1984. Andrew Lane conveyed the Begg Property to the Beggs by a deed dated May 7, 1990 and recorded in the registry at Book 7152, Page 172. By a deed dated February 9, 2002 and recorded in the registry at Book 15132, Page 171 on May 7, 2002, the Beggs conveyed an undivided one- half interest in the Begg Property to themselves as tenants by the entirety and the other undivided one-half interest to Dawn M. Hansbury, all as joint tenants. Exhs. 24, 25, 26, 27, 28, 29, 30; Tr. II-58-59.
38. In 1986 or 1987, the Beggs constructed a picket fence along the property line between the Begg Property and the Drive, down to the Dunning Property, and then turning to the east. The portion of the fence turning to the east was installed off the line between the Begg and Dunning Properties to allow the Dunnings space to turn from the Drive, across that portion of the Begg Property, into the Dunning Property. In or around 2007, the Beggs replaced the picket fence with the split rail fence that exists today. They installed the split rail fence farther into their property from the Drive, and increased the room for the Dunnings to turn from the Drive. Tr. I- 74-75, II-60-64, 70-71, 74-79, 82, 129-131, 151-154, 248, 253; Exhs. 56, 58, 60, 69, 76, 70H; View.
39. The Drive existed when the Beggs moved into the Begg Property. The dirt portion of the Drive was one to two feet wider then than it is now. Tr. II-65, 72, 85-87; Exhs. 60, 61.
40. As discussed, Neil Lewis conveyed the Larsen Property to the Larsens by a deed dated April 1, 1997 and recorded in the registry at Book 10733, Page 171. This deed repeats the grant and reservation of the 1964 Ozon Deed. The dirt portion of the Drive existed roughly in its current location when the Larsens purchased the Larsen Property. They observed the Drive at that time, and observed the Dunnings driving on the Drive after they moved in. Tr. II-239, 242- 244, 254-255, 279-280; Exhs. 18, 58, 60, 69.
41. Mr. Begg and Mr. Dunning each mowed the area between the fence and the drive along their property lines until Mr. Larsen told them that it was his land and that he would mow it. Tr. II-63-64, 280-282.
42. After the Dunnings constructed their house on the Dunning Property, they spent summers and holidays there until Jeanne Dunning retired in 1997. Between 1997 and 2009, they lived on the Dunning Property five months per year. Beginning in 2009, they lived on the Dunning Property six months per year. Jeanne Dunnings brother lived in the house one year, and her niece lived there one winter. Tr. I-134-138.
43. Between 1964 and the present, the dirt portion of the Drive where people drive their vehicles was in roughly the same location as it is now, and consisted of sandy soil, as it does now, but has varied in width. It was wider and in a somewhat different location in the past. In the 1970s and 1980s, into the 1990s, the surface of the Drive was all sand without any grass strip in the middle; there were no tire tracks in the surface as there are now, and it was possible to drive along any portion of the Drive. Tr. I-65-68, 70-74, 122-127, 197, 228-230, 246-247; Exhs. 48, 60, 61.
44. Since at least 2001, there has been a grass strip between the dirt portion of the Drive and the border of the Begg Property. The trees in that grass strip are seven to eight years old. Tr. I-149-150, 257; Exhs. 58, 69.
45. A plan entitled Plan of Land in Orleans, MA prepared for Geoffrey S. Larsen & Tryntje Larsen Date: November 30, 2011 Scale: 1 = 20 (the 2011 Larsen Plan) was recorded in the registry on June 15, 2012 at Plan Book 645, Page 9. The 2011 Larsen Plan is a plan of the Larsen Property. It shows the existing gravel drive leading from the private way Quail Hill Way (the former Coffin Lane) across the northern part of the Larsen Property. It shows the Drive as shown on the 1967 Coffin Plan and the width of the dirt drive on the ground. I find that the 2011 Larsen Plan is an accurate depiction of the Drive as shown on the recorded plan and of the dirt drive as it exists on the ground. The dirt drive as it exists on the ground lies somewhat to the west of the property line between the Larsen and the Begg and Dunning Properties and somewhat to the west of the western edge of the Drive as shown on the 1967 Coffin Plan and other plans. A copy of the 2011 Larsen Plan is attached as Exhibit A. Tr. II-119, 157-158; Exhs. 54, 77; View.
46. In 2001, the Larsens installed a large stone at a point in the Drive just north of the northern edge of the Dunning Property. In 2002, after discussions with the Dunnings, they replaced the stone with a ring of curbing. They later added an additional ring of curbing and planted a yucca plant inside the ring. The effect of this curbing and plant was to prevent the Dunnings from entering the Dunning Property with vehicles from anywhere but the 14.3-foot frontage they have on the Drive. Tr. I-101-102, 106-108, 141-144, 233-236, 246, II-249-251, 257-265; Exhs. 49, 69, 70G, 70H; View.
47. By an instrument entitled Easement, dated October 28, 2005 and recorded in the registry at Book 20447, Page 283 on November 7, 2005, the Beggs gave an easement for the benefit of the Dunning Property to use a portion of the Begg Property, ten feet wide at the Drive and tapering to five feet wide 100 feet from the Drive, for the purposes of a right of way and parking vehicles in connection with the use of the Dunning Property (the Begg Easement). A sketch plan showing the easement area is attached to the Begg Easement. The easement area of the Begg Easement is one that the Dunnings had previously used in driving their vehicles to and from the Dunning Property. Exh. 6; Tr. I-103-104, 109-110, 146-147, 167-169, II-68-70.
48. The curb and yucca plan installed by the Larsens prevents the Dunnings from using the Begg Easement. Tr. I-105-106; Exh. 70G; View.
49. The Larsens installed a green rail fence just west of the Drive opposite the entrance to the Dunning Property in 1998. They also installed wooden railroad ties in the ground in front of the green fence. This green fence and the rails lie outside both the Drive as depicted on various plans and the dirt portion of the Drive created by the tire tracks of the Dunnings. Tr. II-119-122, 149-150, 240-241, 246, 253-254, 270-271; Exhs. 54, 55, 58, 69, 70C, 70D, 70E, 70F; View.
50. The Larsens executed a Notice of Intention to Prevent Acquisition of Easement dated June 18, 2012, which was posted from June 25 through June 30, 2012 and recorded in the registry on July 2, 2012 at Book 26467, Page 250, and addressed to Annique Dunning, Claudine Dunning, and Jeanne O. Dunning. Exh. 77.
51. During the time that the Dunnings have owned and lived at the Dunning Property, they have used the Drive for vehicular and pedestrian access to the property. They have also observed the Beggs and the Mahers or their tenants used the Drive for access to the Begg and Maher Properties. Tr. I-49-50, 53.
52. In the 1970s, Claudine Hodges, the Dunnings daughter, spent summers and holidays with her grandparents the Ozons at the Larsen Property, and regularly walked with her family down the Drive to the Dunning Property. Ms. Hodges recalls driving on the Drive after her family constructed the house on the Dunning Property; she particularly recalls driving around holes in the sand surface of the Drive. Tr. I-244-247.
53. In the late 1980s and early 1990s, both Claudine Hodges and Annique Dunning, the Dunnings other daughter, used the Drive for vehicular and bicycle access to and from the Dunning Property. Tr. I-230-232, 248-249.
54. During the time that the Dunnings have owned and lived at the Dunning Property, oil trucks have used the Drive for to deliver home heating oil, septic trucks have used the Drive to get to the Property to repair the septic system, and delivery vehicles have used the Drive to access the Dunning Property. The Comcast repair truck has also used the Drive to access the Dunning Property. Tr. I-97-98, II-72.
55. Mr. Larsen has observed the lack of electric wires running to the Dunning Property, the electric meter on the Larsen Property, the utility pole near the Begg Property with a conduit going down the pole to the ground, a water main near the Begg Property, and lights on in the Larsen house. He has called the Larsens on the phone. He did not know the location of the buried electric and telephone lines before April 29, 2014. II-272-276, 287.
Discussion and Conclusions of Law
Applying these facts, I must to determine four questions of law. First, do the Dunnings have a record easement to use the Drive? If not, do they have a prescriptive easement to use the Drive, and, if so, what are the bounds of the easement? Third, do the Dunnings have the right by implication to install underground utilities in the Drive pursuant to G.L. c. 187, § 5? Finally, if not, do they have a prescriptive easement to maintain underground utilities?
Record easement. The Drive sits entirely within the bounds of the Larsen Property. The 1940 Rogers Deed, conveying what is now the Larsen and Maher Properties, describes the conveyed parcel by a metes and bounds description that includes the property on which the Drive runs. Exh. 7. Subsequent deeds continue that description. In other words, the 1940 Rogers Deed and subsequent deeds in the Larsen Property chain of title do not describe that property as bounded by the Drive, but rather describe a parcel that includes the Drive. Therefore, no other party besides the Larsens has the right to use the Drive as a private way unless such party has a record or prescriptive easement.
The Dunnings do not have a record easement to use the Drive. Henry Coffin acquired title to the Dunning, Maher, Begg, and Larsen Properties, along with other properties adjacent to those lots, in 1938 from the Estate of George Southward. Exh. 2. As discussed, by the 1940 Rogers Deed, Henry Coffin conveyed a parcel to George E. Rogers that included what is now the Larsen and Maher Properties. Exh. 7. Two years later, Henry Coffin conveyed what is now the Dunning Property to Charles Warren Daniels by the 1942 Daniels Deed. The 1942 Daniels Deed conveyed the Dunning Property [t]ogether with a right of way between the granted premises and Main Street, by the most direct route, over land of the grantor. Exhs. 3, 50. Because Henry Coffin had no ownership interest in the Larsen Property at the time he conveyed the right of way for the benefit of what is now the Dunning Property, the easement that he granted over land of the grantor could not be over the Drive that is contained entirely within the Larsen Property. Henry Coffin did not regain title to the Larsen Property until 1950 when Anna M. Daniels conveyed the Larsen lot to him by the 1950 Coffin Deed. Exh. 12.
Prescriptive easement. To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than twenty years. G.L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Long v. Woods, 22 LCR 416 , 420 (2014). Whether the elements of a claim for a prescriptive easement have been satisfied is a factual question, and the party who claims a prescriptive easement bears the burden on every element. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). These elements are discussed in turn.
The purpose of the requirement of open and notorious use is to ensure that the true owner has notice of a claim of right being made over his property and to give the true owner a fair chance to protect her property interests. Foot v. Bauman, 333 Mass. 214 , 218 (1955); see Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). For a use to be open there cannot be an attempt to conceal the use. White v. Hartigan, 464 Mass. 400 , 416 (2013); Boothroyd, 68 Mass. App. Ct. at 44. For a use to be notorious, the use must be sufficiently pronounced so a landowner who exercises a reasonable degree of supervision over the property will either directly or indirectly be made aware of the use. Id.; see White, 464 Mass. at 417. It is not necessary that the use be actually known to the owner for the use to be notorious. Boothroyd, 68 Mass. App. Ct. at 44. The use must, however, be of such a character that the true owner is put on constructive notice of the use. Lawrence, 439 Mass. at 421 (noting there is no requirement that the true owner be given explicit notice of adverse use); Boothroyd, 68 Mass. App. Ct. at 44. When the true owner has actual knowledge of a use being made under a claim of right, the open and notorious element will be satisfied. White, 464 Mass. at 417.
To be adverse the use be made under a claim of right and the true owner must not have given permission for or consented to the use. White, 464 Mass. at 418; Houghton, 71 Mass. App. Ct. at 835; Johnson v. Falmouth Planning Bd., 19 LCR 104 , 110 (2011), affd sub nom Johnson v. Santos, 81 Mass. App. Ct. 1125 (2012). Permission is not the same as acquiescence. Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). Permission gives an individual the right to do some act on the land. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). Permission is revocable and will defeat a claim for a prescriptive easement. Houghton, 71 Mass. App. Ct. at 835. Whether permission has been granted or can be implied will depend on the particular circumstances of the case, including, among other relevant factors, the actions of the owner, the character of the land, the use of the land, and the nature of the relationship between the parties. Totman v. Malloy, 431 Mass. 143 , 145-146 (2000); Kendall v. Selvaggio, 413 Mass. 619 , 624-626 (1992); Houghton, 71 Mass. App. Ct. at 842-843. An unexplained use of an easement for twenty years creates a presumption of adversity. Truc v. Field, 269 Mass. 524 , 528-29 (1930); Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, 347 Mass. at 763. The true owner can overcome the presumption by offering evidence that explains the use or shows control over the use. Id. For example, the true owner can defeat the presumption by showing there was express or implied permission or the use was the result of some license, indulgence, or special contract. White v. Chapin, 94 Mass. 516 , 519-520 (1866).
The adverse, open and notorious use of the land must have been continuous for no less than twenty years. G.L. c. 187 § 2; Ryan, 348 Mass. at 263. Circumstantial evidence may be used to establish a continuous use. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870); Long, 22 LCR at 420; Bagley v. Senn, 19 LCR 6 , 12 (2011). Continuous use does not mean constant use; a claimant need not show there was daily, constant or un-interrupted use over the entire twenty- year period. Kershaw, 342 Mass. at 320-321; Bodfish, 105 Mass. at 319; Bagley, 19 LCR at 12. Intermittent or occasional use, however, is not continuous, Boothroyd, 68 Mass. App. Ct. at 45, and sporadic use will not be found to be continuous unless the acts are sufficiently pervasive. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996); Lally v. Murphy, 21 LCR 315 , 318 (2013). Regular seasonal or periodic use may be considered continuous if there is a pattern of regularity or some degree of consistency in the use. Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) (seasonal absence does not prevent a finding of continuous use); Kershaw, 342 Mass. at 320-321 (finding continuous use in an adverse possession case where a circus performer had marked a boundary, cleared brush, and periodically used the property for exercises and stunts); Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (noting pattern of regular use on weekends).
A claimant who has not made continuous use of the property for twenty years may satisfy the statutory period by tacking on "several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses." Ryan, 348 Mass. at 264; Denardo v. Stanton, 16 LCR 141 , 144 (2008), affd, 74 Mass. App. Ct. 358 (2009). Privity exists when use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor of the earlier one. Ryan, 348 Mass. at 264.
The Dunnings have established a prescriptive easement to use the Drive. I find that the Drive has existed in roughly its current location since at least 1952; Ms. Dunning and Mr. Daniels both have memories of use of the Drive from that time (or, in Mr. Danielss case, earlier), and the Drive is shown on both the 1951 Subdivision Plan and the 1953 Coffin Plan. During the 1950s and early 1960s, Charles Warren Daniels, the then-owner of the Dunning Property, used the Drive for trucks servicing the farming activities and cranberry business on that property and to haul cedar. It is not clear from the evidence how long that activity continued between the 1950s and when the Dunnings bought the Dunning Property in 1971. It is also not clear from the evidence what use the Dunnings made of the Drive, apart from walking on it periodically, between 1971 and 1977, when they began construction of the foundation and septic system, followed by the house, on the Dunning Property.
The evidence is, and I so find, that between when they began construction in 1977 and 2001, when the Larsens installed the stone and curbing in the Drive, the Dunnings and their daughters used the Drive openly, notoriously, adversely, and continuously to travel to and from the Dunning Property by vehicle, bicycle, and on foot. The vehicles using the Drive for access to and from the property included passenger cars, delivery and repair trucks, and construction trucks. This use has been open and notorious; the vehicles, bicycles and pedestrians using the Drive have been visible to all and have put the owners of the Larsen Property in that period on notice that the Dunnings were using the Drive.
The use of the Drive during this period was adverse. Ms. Dunning testified, and I credit her testimony, that the Dunnings believed they had a record easement to use the Drive as an extension of Coffin Lane, based on the recital in their deed repeating the easement in the 1942 Daniels Deed that the Dunning Property is conveyed [t]ogether with a right of way between the granted premises and Main Street, by the most direct route, over land now or formerly of said Henry R. Coffin, and over Coffin Lane. Exhs. 4, 77. This belief is further evidenced by the Dunnings representations to the Orleans Board of Appeals when they sought the special permit in 1974. I further find that the Ozons, the owners of the Larsen Property at the time, did not give the Dunnings permission to use the Drive. The evidence is, and I find, that the Ozons, Ms. Dunnings parents, and the Lewises, her sister and brother-in-law, believed also that the Dunnings had a deeded right to use the Drive. Finally, the Larsens did not give the Dunnings permission to use the Drive.
The Dunnings use of the Drive has been continuous since 1977 to the present. The Dunnings have used the Dunning Property seasonally every year, with Ms. Dunning and her husband increasing the time they spent at the property each year.
The Dunnings have established that they used the Drive openly, notoriously, adversely, and continuously between 1977 and 2001 for vehicular, bicycle, and pedestrian access. They hold a prescriptive easement to use the Drive. The remaining question is the scope of the prescriptive easement. The extent of an easement by prescription, unlike an easement by grant, is fixed by the use through which it was created. Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962) (citations omitted); Stucchi v. Colonna, 9 Mass. App. Ct. 851 , 851 (1980). The Drive is shown on various plans as a ten-foot wide strip along the boundary between the Larsen and Begg Properties. On the ground, there are dirt tracks along which cars drive that run within this ten- foot wide area of the Drive and, at some locations, run outside the ten-foot wide area and into the Larsen Property. The Drive as shown on the plans and the dirt tracks are shown on the plan attached as Exhibit A. The evidence is that while cars currently use the dirt track, the area of the Drive on which persons have driven has moved over the years. Moreover, the dirt track, while accommodating cars, is too narrow to have been used by the trucks which have used the Drive. I find that the evidence establishes that persons using the Drive have, since the early 1950s and through the period of 1977-2001, driven over the entire width of the Drive as shown on the various plans as well as on the dirt tracks. The prescriptive easement to use the Drive is bounded on the east by Begg Property and on the west by the western edge of the dirt drive on the ground. The area of the prescriptive easement to use the Drive is as shown on the plan attached as Exhibit B.
Right to install underground utilities pursuant to G.L. c. 187, § 5. General Laws c. 187, § 5, provides, in relevant part:
The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service.
The Dunnings argue that the Drive is a private way within the meaning of § 5, and that, therefore, they have the right under the statute to have installed and to maintain their underground utilities. As discussed above, the Drive is not a private way, and the Dunnings have no easement by estoppel, necessity, or implication to use the Drive that might support a right under § 5. See Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 439 (2006) (easement by estoppel is easement by deed for purposes of § 5); Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 392 (2005) (easement arising by implication or necessity is easement by deed for purposes of § 5). The Dunnings are entitled to the rights under § 5 only if they have by deed the right to use the Drive. G.L. c. 187, § 5.
The Dunnings do have an easement, by the 1942 Daniels Deed, over a right of way between the [Dunning Property] and Main Street, by the most direct route, over land of the grantor. Exhs. 3, 50. As discussed, this is not an easement over the Drive, as the grantor did not own the Larsen Property on which the Drive sits at the time of the grant. It is, at most, an easement over some other land of the grantor. Instead, the Dunnings have a prescriptive easement to use the Drive. A prescriptive easement, however, is not an easement by deed, and § 5 does not authorize the holder of a prescriptive easement to pass over a drive to lay utilities in the land burdened by the easement. Cumbie v. Goldsmith, 387 Mass. 409 , 411-412 n.8 (1982); Adams, 64 Mass. App. Ct. at 391-392. The Dunnings have no right under G.L. c. 187, § 5 to install and maintain their utilities under the Drive.
Prescriptive easement to maintain underground utilities. The Dunnings claim that they also hold an easement by prescription to maintain their utilities under the Drive. The utilities were installed at the time of construction of the house on the Dunning Property, in 1979. The utilities have been in place continuously since then, for a period of more than twenty years up until the Larsens posted their Notice of Intention to Prevent Acquisition of Easement in June 2012. The utilities were installed and maintained adversely, as the Dunnings (along with their family and the Town of Orleans) believed that they had the right to install the utilities. Whether the utilities were in place openly and notoriously is, however, a more difficult question, given that they are underground.
I find that Annique Dunnings parents, who owned the Larsen Property until November 1979, and her sister and brother-in-law, who owned the Larsen Property from November 1979 to 1997, had actual knowledge that the utilities were installed underground under the Drive, and that the Town had permitted the installation under the Dunnings claim of right. This actual knowledge satisfies the open and notorious requirement for the period from 1979 to 1997. White, 464 Mass. at 417.
The Larsens took title to the Larsen Property in 1997. For the last two years of the relevant twenty-year period, 1997-1999, the Larsens did not have actual knowledge that the utilities were installed under the Drive. While it is not necessary that a use be actually known to the owner for the use to be notorious, for the underground utilities to have been sufficiently open and notorious to the Larsens, they must have been of such a character that the Larsens were put on constructive notice and sufficiently pronounced so that exercising a reasonable degree of supervision over the Larsen Property, the Larsens would have either directly or indirectly been made aware of the use. Lawrence, 439 Mass. at 421 (noting there is no requirement that the true owner be given explicit notice of adverse use); Boothroyd, 68 Mass. App. Ct. at 44; see White, 464 Mass. at 417.
Applying these considerations to underground utilities, courts have reached different conclusions as to whether the utilities were sufficiently open and notorious to establish a prescriptive easement. A sewer pipe running under one property to serve an abutting property was found to be open and notorious where it was evident that the abutting property was served by the sewer and manholes were placed on the servient estate and used to access the sewer for service and repair. See Foot, 333 Mass. at 216-218. On the other hand, a prescriptive easement was denied where a sewer pipe ran under a property but there were no manholes or other observable indications on the property that a pipe was underneath. See 143-145 Nahant Road, LLC v. Mastoras, 22 LCR 236 , 238-239 (2014).
Here, the evidence is that the Larsens were aware that the Dunning Property is served by utilities; they observed lights at the house and telephoned the Dunnings on occasion. They were aware that no overhead wires lead to the Dunning Property. They were aware that the Dunnings use the Drive for access to and from the Dunning Property as if it were a private way. They were aware that the overhead wires running along Quail Hill Way (formerly Coffin Lane) entered the ground at a utility pole close to the northern corner where the Larsen and Begg Properties meet, just where the Drive begins, and that there is a utility meter on the Dunning Property close to the Drive.
I find that these facts were sufficient to put the Larsens on notice that utilities run under the Drive to service the Dunning Property. The Larsens were on notice that the Dunnings had utility service but that no overhead lines lead to the Dunning Property. While the utility lines do not enter the ground on the Larsen Property, they are sufficiently close to the Larsen Property to have put the Larsens on notice to inquire. This is especially so because, unlike in 143-145 Nahant Road, LLC, the underground utilities do not run under the Larsen Property in an area where they might not be expected. They run under the Drive, which, as the Larsens were aware, the Dunnings used as a private way. Utilities commonly run above, along, or under the way that provides access to the serviced property; indeed, this assumption forms the basis for the right to utility access in G.L. c. 187, § 5. These facts combine to make the presence of utilities under the Drive sufficiently pronounced so that exercising a reasonable degree of supervision over the Larsen Property, the Larsens were on constructive notice and would have either directly or indirectly been made aware of the use. Boothroyd, 68 Mass. App. Ct. at 44; see White, 464 Mass. at 417. The Dunnings installed and maintained utilities, including electricity, telephone, water, and cable, under the Drive openly, notoriously, adversely, and continuously from 1979 through and past 1999. They have established a prescriptive easement to maintain underground utilities under the Drive. [Note 1]
Unlike their use of the Drive for passage, the Dunnings have installed utilities only under the area of the Drive as indicated on the various plans. Their prescriptive easement to maintain underground utilities is limited to the area shown on the record plans and outlined on the plan attached as Exhibit C.
The Dunnings have no record right to use the Drive or to install utilities under the Drive. They are, however, entitled to a judgment that they hold a prescriptive easement for vehicular, bicycle, and pedestrian access to and from the Dunning Property along the Drive, as outlined on Exhibit B, and a prescriptive easement to maintain utilities, including electric, water, telephone, and cable, under the Drive as shown on the record plans and outlined on Exhibit C.
Costs. Count IV of the complaint is a claim for recovery of costs. The Larsens execution and recording of their Notice of Intention to Prevent Acquisition of Easement gave the Dunnings the right to bring this action. G.L. c. 187, §§ 3, 4. As prevailing parties, they are entitled to full costs. G.L. c. 187, § 4. The Dunnings submitted the Affidavit of Jeanne O. Dunning in Support of Request for Costs, which was marked as Exhibit 75. As discussed at trial, this affidavit was admitted solely as the plaintiffs statement of what costs they wish to recover; I did not decide then and do not decide now whether any of these costs are recoverable. Tr. I-112-119. A demand of costs is not really a claim for relief. Rather, the question of what costs are recoverable is more appropriately addressed by a post-judgment motion. Count IV of the complaint with be dismissed without prejudice. The Dunnings shall submit their request for costs, limited to the costs set forth in Exhibit 75, within ten days of the date of this Decision. The Larsens shall have ten days from the date of submission to file their response, after which I will enter an order on costs.
[Note 1] There was evidence that the cable television line runs, at least in part, under the Begg Property. Nothing in this Decision adjudicates the Dunnings rights to maintain the cable line under the Begg Property.