The plaintiffs, Brian Boisvere and Heather Langone, filed on October 27, 2010 this action to register and confirm in them title. See G.L. c. 185, § 26. The locus, which is described in the complaint for registration and shown on the plan filed with the complaint, has a street address of 216B Belanger Road in Westfield.
After the statutorily indicated process of title examination and notice was accomplished, and service was made in April of 2014 on defendants Daniel Jones and Lori-Ann Jones, they filed their answer on May 5, 2014. In this in rem proceeding, the Joneses are the only parties named as defendants or served with notice as interested parties, who have filed an answer or otherwise appeared to oppose the plaintiffs request for registration of the locus title. With the filing of the Joneses answer, the case became a contested one.
The Joneses do not assert their own record title to any part of the locus. They do not necessarily concur that, as the court-appointed examiner has opined, the plaintiffs have a good record title to the registration locus. However, the Joneses have not been able to advance any view of the locus record title that would put any of it in them. In their answer, the Joneses opposed registration, and filed counterclaims asserting easements, allegedly acquired by prescription, for two limited purposes: to maintain mailboxes, and to park vehicles, both on portions of the locus in a strip of land near the street.
The court, recognizing that a defendant lacks the ability as of right to advance counterclaims in a G.L. c. 185 registration case, see Mass. R. Civ. P. 13(a), after hearing determined that the court would not entertain the Joneses counterclaims as counterclaims. [Note 1] Instead, the court directed that the Joneses claims--that they had acquired prescriptive easement rights in a strip of the registration locus--would be tried by the court as defenses to the registration sought by the plaintiffs. If the Joneses successfully proved their prescriptive easement contentions, then the plaintiffs claim to have their title registered absolutely, free of any rights of the Joneses, could not succeed.
The parties therefore tried the limited question whether the defendants had acquired these two claimed prescriptive easements. They did so with the understanding that the defendants, who were asserting rights contrary to the record title and garnered by adverse use, carried the burden of proving up their prescriptive rights. The plaintiffs' claim to be record owners of locus was not at issue in this trial, as the only defendants to answer--the Joneses--have no viable basis to claim record title, and thus lack standing to challenge the plaintiffs record title.
II. PROCEDURAL HISTORY
Following the filing of the Joneses answer, the court conducted on June 26, 2014 a case management conference at which the parties appeared. Without objection, the court struck the defendants counterclaims as not having been judicially authorized, as required under Mass. R. Civ. P. 13(a). (See note one and accompanying text). After hearing, on October 27, 2014 the court denied the Joneses request to revise the June 26th order. After the parties submitted their pre-trial memoranda, the court conducted a pre-trial conference on January 13, 2015, and assigned the case for trial.
The court, in the presence of plaintiffs counsel and the Joneses took a view of the locus and the surrounding area on March 23, 2015.
The trial commenced on March 26, 2015. The parties introduced sixteen exhibits into evidence, as set out in the trial transcript. Four witnesses testified at trial: Judith A. Walker, Brian Wayne Card, and Daniel B. Jones, called by the defendants; Gregory Boisvere, called by the plaintiffs. There was no court reporter present; the testimony and proceedings were recorded by the CourtSmart courtroom recording system and a transcript later was prepared from that recording and filed. At the close of evidence, the court suspended the trial. The parties submitted post trial briefs and requests for findings of facts and rulings of law, which were reviewed by the court, and the case later was argued by the defendants and plaintiffs counsel. Following those arguments, the parties arranged for the preparation and submission of the transcript of the closing arguments, at which time the court took the matter under advisement. I now decide the case.
III. FINDINGS OF FACT
On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the view the court conducted, the pleadings, and the memoranda and argument of the parties, I find the following facts and I rule as follows:
1. The property whose title the plaintiffs seek to register has a street address of 216B Belanger Road in Westfield, Hampden County, Massachusetts. Belanger Road is located in a neighborhood, known in some of the record plans as Belanger Village, on the eastern shore of a Great Pond known as Hampton Ponds or Pequot Ponds. This pond lies at the western edge of the land sought to be registered. Our locus is located entirely in Westfield, though the pond and the Belanger Village neighborhood is in both Westfield and Southampton, in Hampshire County. Belanger Village takes its name from the family that owned much of this area in earlier times. Rose Belanger owned the registration locus until 1964. The portion of the registration locus which is the disputed area--as between the plaintiffs and the defendants--is a 83.25 foot long strip of land on the eastern border of the property; this strip runs parallel to and alongside Belanger Road, on the eastern side of the locus, farthest from the pond. The disputed strip contains mailboxes, a utility pole, shrubbery, and a portion of a driveway serving the dwelling on the rest of the locus. The disputed strip is separated from the rest of the 216B Belanger property by a chain link fence (with gates across the driveway opening) and a concrete retaining wall.
2. The mailboxes are configured as three standard mailboxes, two black and one white. Under the mailboxes are two white newspaper boxes. All five of these boxes are affixed to a single wooden pole, and currently exist near the middle of the disputed strip, in front of the utility pole.
3. In 1983, co-defendant Lori-Ann Jones, then known as Lori-Ann Repp, acquired title to her premises, 216 Belanger Drive, by deed of Lasonde dated February 15, 1983, and recorded in the Hampden County Registry of Deeds ("Registry") at Book 5390, Page 381. Her co-defendant and husband, Daniel Jones, moved into the premises in 1986. The defendants currently live in the dwelling at 216 Belanger Drive, which is the parcel immediately to the south of the registration locus. Belanger Drive intersects at an acute angle with Belanger Road, just at the boundary line of the properties of the parties to this action. Belanger Road ends there, and Belanger Drive continues to the south. This is why the plaintiffs lot has a Belanger Road address, and the Joneses address, is on Belanger Drive.
4. To the west of each of these parcels is Hampton Ponds, and to the east of them is Belanger Road and Drive. The northern border of the 216B Belanger Road locus abuts another property described as the "right of way."
5. The plaintiffs' parents, Gregory H. Boisvere and Dianne M. Boisvere, acquired title to 216B Belanger Road by deed of the Langes dated September 1, 1999, recorded in the Registry at Book 10914, Page 429. Plaintiffs Brian G. Boisvere and Heather L. Langone are brother and sister, and received the fee in the parcel, subject to their parents' life estate, by deed dated October 27, 2001, recorded with the Registry in Book 12076, Page 91. Of record, the plaintiffs' parents retain a life estate in the premises.
6. Judith Walker has lived in the neighborhood since 1973, first living at 205 Belanger Road, and then moving to 16B Belanger Road in 1978. Ms. Walker testified that when she first moved to the neighborhood in 1973, mail had begun to be delivered to the area, and five mailboxes existed at that time at some undefined location on the disputed strip within the registration locus. There was no satisfying evidence Ms. Walker or anyone else presented as to who used, maintained, or owned the five mailboxes during this time, and the location they occupied was not established with specificity. Ms. Walker still resides in the neighborhood, and has a part time job as a dog walker; she often walks by the disputed area.
7. After 1983, the mailboxes were moved at least three times to different locations on or off the locus.
8. In 1999, the mailboxes were located approximately fifteen to twenty feet from the right of way, more toward the northeast corner of the locus.
9. At some time between 2001 and 2007, the Boisveres gave permission to the Joneses, and helped them move the mailboxes to a location at the parties shared property line on the southeast corner of the locus; the Joneses dug the hole in the ground for the post they then placed in this new location, and Gregory Boisvere, plaintiffs' father, assisted the Joneses with putting up the mailboxes there. The mailboxes remained in this location for approximately eleven days.
10. The mailboxes currently are located in at least their third position, in the middle of the disputed strip on the locus in front of the utility pole; the Joneses moved the mailboxes to this, their current position, because the mail was not being delivered when the boxes were located at their preceding position at around the property boundary between 216 and 216B Belanger. The mailboxes have been in their current location for well less than twenty years before this case began in 2010.
11. Local residents over the years often parked in the immediate vicinity of the parties properties, particularly when those residents came there to access the pond. Although the evidence on this point is not robust, and I need not resolve the point to decide the issues tried, it appears that on or in the vicinity of the registration locus, likely over the so-called right of way parcel, there were some manner of rights given to neighborhood lot owners to pass from the street down to the pond. For this reason at least, the area at the street around the locus at times was used for overflow parking by some residents to access the pond from, I find, 1973 to 1978, and again from 1980 to 1983. This parking, by neighbors seeking to use the pond, primarily took place on the weekends during the summer months. Some of the cars parking for this purpose parked briefly not only on the street itself, but on one part or another of the disputed strip within the registration locus. This parking was by neighbors and residents of the area other than the Joneses and their predecessor owners of 216 Belanger. The Joneses, who have at all relevant times resided right next door to the locus at 216 Belanger, had no need to drive to this part of the neighborhood to be able to get to the pond.
12. Mr. Card has lived in the neighborhood, at 210 Belanger Road, since 1978, and had noticed that cars would park on Belanger Road around the locus. He specifically stated that Ms. Lasonde, the previous owner of the defendants' home, would park at times on the locus. While this certainly at times may have happened, I do not find that it happened regularly, frequently, or with any open and obvious persistence.
13. Ms. Walker noticed cars parking around the locus beginning in 1973. She made some observations, which I credit in a general way, that the disputed strip on the registration locus was used occasionally to accommodate overflow parking during periods of high usage of the pond, on weekends in the summer. Ms. Walker did not provide any specific information which I credit as to when the locus itself was used for parking in this manner, how often, or by whom. She is unaware who owned the defendants' house before Ms. Jones acquired title in 1983.
14. Daniel Jones used the locus for parking at times for thirteen years, from 1986 to 1999. Mr. Jones plowed out snow in winter to clear up a de facto parking space within the disputed strip on the locus. I find, however, that this practice continued only until 1999, when Mr. Jones began parking in his own driveway. Mr. Boisvere confirmed that, since acquiring title to 216B Belanger Road in 1999, he never has seen the defendants park at the locus, actually on the disputed strip, and I credit this testimony. I believe what he testified: that since coming to the property, Mr. Boisvere only has observed the defendants use their own driveway and a space in front of their house for parking. The defendants testified that they occasionally used the locus for parking after 1999 when it was too difficult to park in their driveway because of snow and ice. I do not find that after 1999 the Joneses made any regular, frequent, continuous, or obvious and open use of the disputed strip on the registration locus for the parking of their vehicles.
15. Gregory Boisvere installed a driveway on the 216B Belanger Road property in 1999. A portion of the driveway crosses over the disputed locus, connecting the rest of the property to Belanger Road. In addition to the installation of the driveway, Mr. Boisvere planted trees and shrubs on the locus beginning in 2004 so that he would not have to maintain the area or mow the grass. The growth of shrubbery and trees on most of the disputed strip on the locus is fairly thick and dense over much of the disputed strip, and is not compatible with the parking of a vehicle. While it is not certain how much of the time since this planting the vegetation was large enough to prevent any parking on the disputed strip, simply from looking at the growth in 2015, it must have been formidable enough to stop parking for a number of years prior. I make no finding based on what I saw on the view, however, about how long the trees and shrubs had been in place in sufficient size and coverage to prevent parking.
Acquisition of an easement by prescription requires use or enjoyment "continued uninterruptedly for twenty years." G.L. c. 187, § 2. "As codified in G. L. c. 187, § 2, [the defendants] may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007). The burden of proof falls on the defendants in this case to establish each and every element of their claimed right of easement by prescription. See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). "If any of the elements remains unproven or left in doubt, the [defendants] cannot prevail." See Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). Whether the elements of a claim for prescriptive easement all have been satisfied is essentially a factual question for the trial judge. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961).
As with adverse possession, acts of ownership must be open and notorious so as to place the true owner "on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action." Lawrence v. Concord, 439 Mass. 416 , 421 (2003) (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)) (internal quotation marks omitted). "To be 'open' the use must be made without attempted concealment." Boothroyd, 68 Mass. App. Ct. at 44; Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)); Foot v. Bauman, 333 Mass. 214 , 218 (1955).
While the acts of possession must be open, proof of actual awareness on the part of the record owner is not required: "To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious." Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56); Foot, 333 Mass. at 218 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56). "There is no requirement that the true owner be given explicit notice of adverse use," Lawrence, 439 Mass. at 421, and if the use is open and notorious, it is "deemed to place the true owner on constructive notice of such use. . . ." Id.
A claimant for a prescriptive easement must also provide evidence of use that is continuous. See Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (infrequent use does not satisfy the requirement of continuity in the context of adverse possession). The defendants must establish continuous use of an easement for at least twenty years. Use that is intermittent and disjointed in time is not continuous. See Boothroyd, 68 Mass. App. Ct. at 45 (use that is "intermittent and disjointed in time" cannot satisfy the continuity element of a prescriptive easement claim); Uliasz v. Gillette, 357 Mass. 96 , 102 (1970) (concluding irregular use does not "ripen into an easement by prescription"). "'Whatever breaks the continuity of possession and enjoyment of an easement has the result of destroying the effect of the prior use." Boothroyd, 68 Mass. App. Ct. at 45 (quoting Pollard v. Barnes, 56 Mass. 191 , 199 (1848)).
Although the defendants must show continuity over twenty years, "[a] prescriptive period resulting in the creation of a prescriptive right can be made up of several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses." AMERICAN LAW OF PROPERTY, § 8.59; see also Bucella v. Agrippino, 257 Mass. 483 , 488 (1926).
In addition, the prescriptive easement must be adverse to the owner. "It is the nonrecognition of such authority at the time a use is made which determines whether it is adverse; and permissive use is inconsistent with adverse use." Ryan v. Stavros, 348 Mass. 251 , 263 (1964). If, for example, "there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Truc v. Field, 269 Mass. 524 , 528-29 (1930). Such a presumption, however, can be rebutted by any grant of permission, which is fatal to the acquisition of a prescriptive right. See Spencer v. Rabidou, 340 Mass. 91 , 92 (1959) ("[permission] rebuts the presumption of adverse use which arises from the unexplained use of an easement for twenty years.").
Finally, "[t]o establish a way by prescription, the use must be, not only open, adverse, uninterrupted, peaceable, continuous, and under a claim of right, but must be confined substantially to the same route, and to substantially the same purpose for which the way was designed originally, unless the way is one for all purposes." Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898). Use of a locus that is not substantially confined to a regular or specific path or route does not meet the requirements of G.L. c. 187, § 2. Boothroyd, 68 Mass. App. Ct. at 46 ("[a] way imports a right of passing in a particular line, and not everywhere over the premises over which it is claimed." (citing Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898))).
A. Easement by Prescription for Use of the Mailboxes
1. Location of the mailboxes
The Joneses have failed to meet their burden of showing when and where the mailboxes were moved and where the actual hostile use on which they base their claimed prescriptive right existed, as no such evidence satisfying and persuasive to me, as the trier of fact, was presented. Lowe, 347 Mass. at 762 (burden of proof is on the defendants to show they have acquired an easement by prescription). Testimony from Judith Walker, Gregory Boisvere, and Daniel Jones demonstrates to me that the mailboxes were placed in at least three different locations between 1983 and the initiation of suit. Ms. Walker testified that mail began being delivered to the neighborhood in around 1973, and that there were five mailboxes on the disputed strip within locus, but she did not state who owned or used the mailboxes during that time, and was not clear and persuasive about where actually they stood during the prescriptive period claimed by the Joneses. Mr. Jones testified that he and Gregory Boisvere moved the mailboxes, at the Boisveres request, to around the parties shared property line some time before 2007, and that about a week and a half later, the mailboxes were again moved to their third and current location because the mail was not being delivered. There was conflicting testimony about how the mailboxes located on the disputed area near the property line ceased to be there. I need not resolve this conflicting evidence or determine if the Boisvere family played a role in damaging or removing the mailbox from this agreed location. What is critical is that the supporting post and the mailboxes were placed there by agreement between the Joneses and the Boisveres. Mr. Boisvere confirmed during this testimony--that he and Mr. Jones moved the mailboxes together to their shared property line on the southeast corner of the locus, and I credit him on this. He also testified credibly that by 2011, the mailboxes were located in their third position in the middle of the locus in front of the utility pole.
I find there was a lack of suitable and sufficient evidence (including but not limited to in the form of pictures or plans) to support the defendants' claims that the mailboxes were installed and kept in a fixed location within the disputed strip for sufficiently long a time in the required open and hostile way. Although many of the cases address the need for evidence of a specific route when rights of passage are claimed by prescription, see Boothroyd, 68 Mass. App. Ct. at 45 (burden of proof not met when use is not confined to a regular or specific area), I conclude that a similar legal requirement attends a claim such as the one before me, for an easement to maintain perpetually an improvement such as a mailbox. The mailboxes cannot satisfy the elements of a prescriptive easement when the evidence does not show they remained in a fixed position for the required twenty years. Here, the evidence shows a "break [in] the continuity of the possession and enjoyment of [the] easement," Barnes, 56 Mass. at 199, because the mailboxes were moved too often to establish any consistent or continuous presence or use. Although the witnesses provided a general time line for the court, the general existence of mailboxes at certain times and in various locations on the disputed area does not meet the requirements of G.L. c. 187, § 2, and does not give rise to a prescriptive right. See Boothroyd, 68 Mass. App. Ct. at 46 ("[a] way imports a right of passing in a particular line, and not everywhere over the premises over which it is claimed." (citing Kennedy, 170 Mass. at 56-57)). If a passage right that takes place at various locations over a parcel is not used continuously and obviously enough to establish a right of way by prescription, then mailboxes which are not proved to have been installed and maintained in a fixed location for the requisite period, and which in fact have been moved about, ought not establish a prescriptive mailbox easement.
2. The mailboxes were not adversely maintained for the prescriptive period
It was uncontested at trial that the Boisveres and the Joneses agreed to move the mailboxes to their shared property line sometime between 2001 and 2007. This voluntary movement of the mailboxes destroys the adversity of any prescriptive easement claim because the act rests, I find, on permission granted by the plaintiffs. Stavros, 348 Mass at 263; see Rabidou, 340 Mass. at 93 (express or implied permission defeats a claim based on adverse use). The Boisveres' request to move the mailboxes to the shared property line, carried out willingly by the Joneses with the direct assistance of the Boisvere family, exudes permission, granted by the record owners. It proves the plaintiffs willing acceptance of the Joneses use of the locus for installation of mailboxes. This event shows the Joneses acquiescence to the Boisveres' authority over the locus, and their ability to direct where the mailboxes might be located. The granting of permission, and the assistance in moving the mailboxes, were "acts of dominion by the [Boisveres] consistent with [their] title of record." Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968).
If the Joneses had kept their mailboxes where they had always been on the locus, they may have maintained them there adversely. But by willingly moving their mailboxes at the request of the Boisveres, even if the mailboxes remained on the new location for only eleven days, the Joneses brought an end to their claim of adverse use. Id.; see also Rabidou, 340 Mass. at 92 ("[permission] rebuts the presumption of adverse use which arises from the unexplained use of an easement for twenty years."); Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009) ("express or implied permission . . . rebuts the presumption of adverse use."). To the extent the relocation from the agreed position to the current one took place without permission, the period of prescriptive use is to be measured from that date, one which falls short of the required twenty years.
3. The mailboxes were not continuously used on a particular location on the disputed area
The defendants also have failed to present evidence that proves that their use of the mailboxes on a particular location on the disputed area was continuous. Testimony from Ms. Walker, Mr. Jones, and Mr. Boisvere demonstrates that the mailboxes existed in three different spots on the locus from 1973 to the time this case began. From 1973 to 1983, there is no way to discern the exact location of the mailboxes, or who owned or used them during this time. Ms. Walker testified that the five mailboxes existed on the locus and that mail was being delivered there, but did not provide testimony which I credit describing specifically who used the boxes, or where they were located. From 1983, when Lori-Ann Jones moved to 216 Belanger Drive, until this case began, the defendants used at least some of the mailboxes, but not continuously at the same location.
The defendants' use, intermittent and disjointed in time at any one location, does not qualify as continuous. See Selvaggio, 413 Mass. at 624 (stating that infrequent use does not satisfy a continuity in the context of adverse possession); Boothroyd, 68 Mass. App. Ct. at 45 (use that is "intermittent and disjointed in time" cannot satisfy the continuity element of a prescriptive easement claim); Uliasz, 357 Mass. at 102 (concluding irregular use does not "ripen into an easement by prescription"). The movement of the mailboxes "breaks the continuity of possession and enjoyment of an easement [and] has the result of destroying the effect of the prior use." Boothroyd, 68 Mass. App. Ct. at 45 (quoting Pollard v. Barnes, 56 Mass. at 199).
I therefore find and rule that the defendants have failed to meet their burden of proving that the use of the mailboxes on the locus was legally sufficient to establish an easement by prescription.
B. Defendants' Prescriptive Claim to Park on the Disputed Locus
The defendants failed to present sufficient evidence which I found credible and persuasive to carry the burden of showing continuous and consistent adverse vehicle parking use of the locus for twenty years. I find, based on the evidence, including Mr. Jones testimony, that he used a portion of the disputed strip on the registration locus for parking at times from 1986 to 1999, and that he plowed snow from the locus to facilitate some wintertime parking on the disputed strip for a time, but only until 1999, when he instead began parking in his own driveway. Defendants failed to prove continuous use because Mr. Jones' testimony did not establish how often he used the parking space. From his testimony, which is the only evidence the defendants presented which I find at all instructive with regard to the prescriptive parking claim, I only can conclude that Mr. Jones used the space occasionally during snow storms, when it was too difficult to park in his own driveway. This use of the locus for parking is intermittent and disjointed in time, and therefore is not continuous. See Boothroyd, 68 Mass. App. Ct. at 45 (use that is "intermittent and disjointed in time" cannot satisfy the continuity element of a prescriptive easement claim); Gillette, 357 Mass. at 102 (concluding irregular use does not "ripen into an easement by prescription"); see also Newburyport Redev. Auth. v. Commonwealth, 9 Mass. App. Ct. 206 , 227-228 (1980) (continued public use for the requisite statutory period does not raise a presumption that the use was adverse). I do not find in any of the evidence about historical parking in this area by others-- largely by more distant neighbors vehicles--even if they at times parked on the area of locus now in dispute, any basis for finding a prescriptive easement right benefiting the Joneses and their land.
Even if Mr. Jones parked on the locus frequently from 1986 to 1999, something I do not find as a fact, he only has undertaken this use of the locus for thirteen years. Mr. Boisvere testified, and I credit him on this, that he has never seen the Joneses use the locus for parking since he and his family acquired title to 216B Belanger Road in 1999, and the defendants contention, which I do not find persuasive, is at best that they only occasionally parked on the locus since then. The defendants presented some evidence that the locus was used for parking from 1973 to 1978, and again from 1980 to 1983. Ms. Walker testified that she noticed cars parked on the locus primarily on weekends in the summer beginning in 1973, when she moved into the area. Ms. Walker also stated that she was unaware who the previous owners of the defendants' property were. I find she was unable to provide evidence sufficiently sharp about who specifically in those years used the locus for parking, and when it was used.
Mr. Card testified that cars parked on the locus before the defendant Lori-Ann Jones moved to the neighborhood in 1983, and that he specifically witnessed Ms. Lasonde, the previous owner of the Jones's house, park at the locus. I do not find this evidence strong or particularly helpful to the Jonesesposition. This evidence failed to meet their burden to supply the proof necessary to tack those early years to form a continuous prescriptive period, because, again, there was no reliable evidence of how often the locus was used for parking during those years. I am unable, from the evidence I find persuasive, to find the requisite continuity and frequency of use.
Both of these witnesses for the defendants, Ms. Walker and Mr. Card, recalled that cars parked on the locus, but both failed to ascertain how often the defendants, as opposed to others in the neighborhood, used the space. In fact, the testimony suggested that the locus was used primarily as overflow parking for visitors who needed a place to park on the occasional busy weekend during the summer. This use of the locus is similarly "intermittent and disjointed in time," and cannot be tacked on to the thirteen year period when Mr. Jones may occasionally have used the locus for parking, even if the use during that period otherwise was adequate, something I do not find to be so. Boothroyd, 68 Mass. App. Ct. at 45; see Fease v. Favacchia, 57 Mass. App. Ct. 1101 , 1101 (2003) (neighboring residents' sporadic use failed to meet the "continuous and uninterrupted" use standard required to obtain an easement by prescription). The defendants have failed to meet the twenty-year prescriptive use requirement; the Joneses contention--that they acquired prescriptive rights to park on the locus, fails. Steffens, 61 Mass. App. Ct. at 847 ("[i]f any of the elements remains unproven or left in doubt, the claimant cannot prevail.").
I find and rule that the defendants have failed to prove the requisite elements of an easement by prescription over the registration locus, either for the purpose of maintaining mailboxes or for parking vehicles. This means that the Joneses defense to the action for registration, which rests on the Joneses assertion that the plaintiffs title cannot be registered and confirmed free of the prescriptive rights which the Joneses claim, fails. The title that the court may register and confirm in this action need not be made subject to any right, title, or interest of the Joneses.
The case appears uncontested but for the defenses of the Joneses, which have been fully adjudicated by the court in this decision. This action now is to proceed as an uncontested case, and plaintiffs are instructed to coordinate with the courts title examination and survey departments the remaining steps necessary for the court to enter judgment registering and confirming the plaintiffs title. That judgment is to register that title free of any right, title, or interest of the Jones defendants.
[Note 1] In actions in the Land Court for registration and confirmation pursuant to G.L. c. 185, ... no party may assert a counterclaim under this subdivision or subdivision (b) [of Rule 13], except by leave of court. The Rules recognize the unique posture of an in rem proceeding for registration of title. This court generally has refrained from liberal allowance of requests to assert counterclaims in original registration actions. This reflects the significant expense and effort required of a plaintiff in such cases, who must undertake and shoulder the considerable costs of often elaborate title examinations and land surveys as prerequisites to bringing the registration case. There frequently is unfairness is allowing an opposing party to assert counterclaims--and obtain judgment in his or her favor--without having to incur the same burdens.