Home SUSAN C. STAFFORD a/k/a SUSAN C. COLEMAN v. STEPHANIE FLETT, Individually and as TRUSTEE of the STEPHANIE FLETT Amended and Restated Revocable Living Trust. STEPHANIE FLETT, Individually and as TRUSTEE v. SUSAN C. STAFFORD a/k/a SUSAN C. COLEMAN, EMERSON T. COLEMAN, JR., JACQUELINE PAGE, and MATTHEW PAGE.

MISC 15-000134

January 4, 2017

Plymouth, ss.

SCHEIER, J.

DECISION

Plaintiff Susan C. Stafford, also known as Susan C. Coleman (Ms. Stafford), initiated this action against an abutter, Defendant Stephanie Flett (Ms. Flett), to determine the rights of the parties in and to a portion of property owned of record by Ms. Flett (Disputed Area). In a three-count complaint filed April 21, 2015, Ms. Stafford alleges she has acquired title to the Disputed Area by adverse possession or, alternatively, that she has acquired a prescriptive easement over the Disputed Area for parking and other uses. Additionally, Ms. Stafford seeks a declaratory judgment regarding the use of an easement over Ms. Flett's property, used by Ms. Stafford to access her property (Driveway Easement). While Ms. Flett did not bring a counterclaim, she argues that she is entitled to a declaratory judgment in her favor regarding the use of the Driveway Easement.

After the parties' unsuccessful attempts at mediation, Ms. Flett moved for a preliminary injunction on August 28, 2015. She sought to enjoin Ms. Stafford, her licensees and invitees, including her relatives, from, among other things, parking within the Driveway Easement and the Disputed Area and traveling at excessive speeds on the Driveway Easement. At a hearing on September 2, 2015, at which all parties were heard, the parties agreed to postpone the hearing to allow time to reach a potential resolution on the terms of a preliminary injunction. At the reconvened hearing on September 8, 2015, the parties agreed to submit a draft interim order, which the court adopted as an order of the court, issued on September 9, 2015 (First Injunction Order).

On December 14, 2015, Ms. Flett filed a complaint for contempt, alleging several violations of the First Injunction Order by Ms. Stafford and three of her family members. Specifically, Ms. Flett alleged Ms. Stafford's children, Emerson Coleman, Jr., and Jacqueline Page, and son-in-law Matthew Page, continuously violated the prohibition against reversing down the Gravel Driveway and driving on the driveway at excessive speeds. [Note 2] Ms. Flett also alleged that Ms. Stafford failed to properly implement the erosion and drainage mitigation measures required by the First Injunction Order.

A hearing on the complaint for contempt took place on January 11, 2016. The parties were able to reach an agreement with respect to some, but not all, of the issues raised in the complaint. They agreed to try the unresolved issues together with a trial on the merits of the underlying complaint. An amended preliminary injunction order issued February 5, 2016, clarifying certain terms of the First Injunction Order and addressing for the first time issues regarding the snowplowing and sharing of expenses in connection with the Driveway Easement (Amended Order).

The court viewed the properties in the presence of all parties' counsel on July 21, 2016. Three days of trial were held on July 26 and 27, 2016, and August 4, 2016. On behalf of Plaintiff, the court heard testimony from Emerson Coleman, Sr.; Emerson Coleman, Jr.; Randy Galletti; Jacqueline Page; and Plaintiff Susan Stafford. On behalf of Defendant, the court heard testimony from Raymond Cetner; Defendant Stephanie Flett; and Tadd Clelland. Thirty-one exhibits were entered in evidence and both parties filed post-trial briefs.

Ms. Stafford moved to amend the Amended Order on October 25, 2016, and all parties appeared before the court to argue the motion. Through her motion, Ms. Stafford sought an amendment to clarify the restrictions placed on service and delivery vehicles at the Stafford Property. An order further amending the prior injunctive relief issued on October 28, 2016 (Second Amended Order), allowing vehicles delivering essential services, such as oil and propane, to 1) park at the end of the Driveway Easement to deliver products or service the Stafford Property, and 2) as necessary, reverse up or down the Driveway Easement. The Second Amended Order also required Ms. Stafford to notify those service providers of these requirements and allowed either party to post the ten mile per hour speed restriction.

I. Facts

Based on the agreed statement of facts, exhibits, stipulations, the credible testimony, and the reasonable inferences drawn therefrom, informed by this court's view of the properties, this court finds the following material facts:

1. Plaintiff Susan C. Stafford, also known as Susan C. Coleman (Ms. Stafford) is an individual who resides at and owns the property known as and numbered 22 Clifford Road in Plymouth (Stafford Property or 22 Clifford Road).

2. Defendant Stephanie Flett (Ms. Flett) is an individual who resides at and owns, as Trustee of the Stephanie Flett Amended and Restated Revocable Living Trust, property known as and numbered 20 Clifford Road in Plymouth (Flett Property or 20 Clifford Road).

3. The Stafford and Flett Properties were once held in common ownership by David E. Carreau, who took title from Howard A. Haire and Mary K. Haire, by deed recorded with the Plymouth County Registry of Deeds on June 6, 1979, in Book 4668, at Page 134 (together, the two properties are the "Common Estate"). [Note 3]

a. The Common Estate was improved by two homes on the single lot, accessed by a shared driveway. The house on the Flett Property is located closer to Clifford Road than the house on the Stafford Property which is located directly behind and upgrade from the Flett Property.

b. While they owned both 22 and 20 Clifford Road, the Haires caused to be created a plan titled "Division of Land Plymouth, Mass. for Howard A. Haire, Jr. et ux," dated December 14, 1978, and approved by the Plymouth Planning Board on June 5, 1979 (Haire Plan). The Haire Plan is recorded in Plan Book 4668, at Page 134. [Note 4]

Stafford Property – 22 Clifford Road

4. Ms. Stafford acquired an interest in the Stafford Property from David E. Carreau who deeded the property to her (as Susan C. Coleman) and her husband, Emerson T. Coleman, as tenants by the entirety, by deed recorded on or about November 5, 1982, in Book 5238, at Page 89. Emerson T. Coleman (sometimes referred to herein as Emerson T. Coleman, Sr.), is the former spouse of Ms. Stafford and resided at the Stafford Property between 1982 and 1999.

5. Ms. Stafford became the sole owner of the Stafford Property pursuant to a Judgment of Divorce filed on February 20, 2001, with the Plymouth County Probate Court Docket No. 00D-0598, and recorded on or around May 3, 2001, in Book 19780, at Page 50.

6. The Stafford Property is a porkchop-shaped lot with approximately thirty feet of frontage on Clifford Road, via a rectangular strip of land abutting the southern boundary of the Flett Property (referred to by the parties as Clifford Road Frontage or Side Strip).

Driveway Easement

7. Mr. Carreau, then owner of both the Flett Property and the Stafford Property, conveyed the Flett Property to Michael Galletti by deed dated October 8, 1980, recorded in Book 4890, at Page 478. The Carreau deed refers to the Haire Plan, on which the Flett Property is Lot 22- 1, and the Stafford Property is Lot 22-2. The Plan also shows a loop access drive extending from the Stafford Clifford Road Frontage across the Flett Property (Lot 22-1), connecting to Clifford Road, pursuant to the reservation of an access easement for the benefit of the Stafford Property (Lot 22-2) (Driveway Easement).

8. The Driveway Easement reserves to the grantor, Carreau, and his successors, heirs and assigns, as appurtenant to Lot 22-2 as shown on the [Haire Plan]:

an easement for driveway purposes over and in a strip of land about twelve feet in width extending from Clifford Road in an easterly direction to the southeasterly boundary of Lot 22-1, the center line of which strip runs parallel to the northwesterly boundary line of Lots 22-1 and 22-2 and 40 feet distant therefore. It is agreed that said driveway is to be used in common with the owners of Lot 22-1 and that no vehicle shall be parked on the driveway. It is further agreed that the owners of Lot 22-1 and 22-2 shall share equally in the maintenance of the driveway, including paving, repairing, and snow and ice removal. It is further acknowledged and agreed that the driveway loop shown by dashed lines on the above-mentioned plan no longer exists on the ground and no rights or reservations are hereby granted or reserved therein

9. This deed severed the Common Estate into two separate lots and, as emphasized above, expressly eliminated the loop portion of the Driveway Easement.

10. The remaining portion of the Driveway Easement runs over and through an existing gravel driveway on the Flett Property. The existing driveway (Gravel Driveway) is wider than the Driveway Easement and does not quite align with its contours as shown on the Haire Plan.

The Flett Property- 20 Clifford Road

11. Beginning on October 8, 1980, when the Flett Property was severed from the Stafford Property, the Flett Property was conveyed four times before Ms. Flett purchased it in 2014. The order of the chain of title devolved as follows:

a. Michael A. Galletti was the first owner, purchasing the Flett Property from David E. Carreau by deed referred to above in paragraph 7; then

b. Randy C. Galletti, who purchased the property from his father, Michael, by deed recorded June 12, 1997, in Book 15242, at Page 328; [Note 8] then

c. Tadd M. Clelland and Cara C. Clelland, who purchased the property from Randy Galletti by deed recorded April 30, 2001, in Book 19758, at Page 139; and then

d. Raymond C. Cetner and Amy K. Cetner who purchased from the Clellands by deed recorded October 3, 2011, in Book 40396, at Page 302. The Cetners subsequently deeded the Flett Property to Ms. Flett, as Trustee on September 26, 2014, by deed recorded in Book 44779, at Page 39.

Disputed Area

12. The Disputed Area is located on the easterly side of the Flett Property and southerly of the Driveway Easement area.

13. More particularly, the Disputed Area consists of the following characteristics and dimensions all as approximately shown on Sketch B, prepared by the parties:

a. An area referred to as the "Gravel Parking Area" or "Sue's Parking Spot," which is a graveled area nine feet wide and twenty-eight feet and five inches long, located approximately between eleven feet to six feet, six inches away from the Fence (descending in distance moving southward).

b. Immediately south of the Gravel Parking Area is an area of cobblestones and flagstones, seven feet and six inches in length.

c. Further south past the stones, there are brick steps extending from the Stafford Property over the parties' shared boundary onto the Flett Property. The stairs are slightly angled, and extend into the Flett property approximately four feet, seven inches at the northern corner, to three feet, seven inches at the southern corner.

d. Further south past the brick steps, there is an area of open lawn twenty feet long, which narrows in width from ten feet at the end of the brick steps to seven feet, three inches where it reaches the Fence at the southern lot line of the Flett Property.

14. The Disputed Area is framed to the north by the Driveway Easement (and current Gravel Driveway), to the east and south by the Fence (or, traditionally, the parties' lot line), and to the west by a row of arborvitae. The row of arborvitae is fifty-four feet, five inches long, and runs in a north to south direction (Arborvitae).

Uses of Driveway Easement/Gravel Driveway, Disputed Area and Clifford Road Frontage: 1982 to 1997

15. In 1982, shortly after Emerson Coleman, Sr., and Ms. Stafford moved into the Stafford Property, Coleman, Sr. had a discussion with Michael Galletti, then-owner of 20 Clifford Road, regarding the Coleman/Stafford's lack of available parking on the Stafford Property and Mr. Galletti's desire to keep the Clifford Road Frontage open as part of his backyard even though it is part of the Stafford Property.

a. At the time, no access drive was built or existed over the Clifford Road Frontage. There were no delineating features distinguishing the Clifford Road Frontage from the backyard of 20 Clifford Road, and Michael Galletti used the Clifford Road Frontage as an extension of his backyard.

b. When Ms. Stafford and Coleman, Sr. purchased the Stafford Property, the only existing vehicular access from Clifford Road to the Stafford Property was over the Gravel Driveway on the Flett Property, and there were no existing parking areas located on the Stafford Property.

16. Coleman, Sr., and Michael Galletti reached an oral agreement to swap the use of portions of each other's property. The court finds that their discussions led to an agreement which this court defines as a license and refers to as such (License).

a. Under this License, Michael Galletti, as owner of the Flett Property at 20 Clifford Road, was permitted to use the Clifford Road Frontage directly behind his house as an extension of his back yard, and Coleman, Sr. agreed not to use that area, owned by him and Ms. Stafford, for access to their property or for other purposes.

b. Coleman, Sr., and Ms. Stafford, as owners of the Stafford Property at 22 Clifford Road, were permitted to park in the Gravel Parking Area, on the easterly side of the Flett Property, and use it as an extension of their front yard for parking, access and typical yard use.

c. Coleman, Sr. was permitted to park at the end of the Gravel Driveway, partly along the northerly boundary of the Flett Property (see fact paragraph 19). [Note 9]

17. Consistent with the Agreement, Michael Galletti installed a sprinkler system throughout the Clifford Road Frontage and regularly and continuously fertilized, mowed and otherwise maintained the area as a lawn during his ownership of the Flett Property.

18. When he resided at the Stafford Property between 1982 and 1999, Emerson Coleman, Sr. parked on the Flett Property at the end of the Gravel Driveway, where the gravel and dirt areas met. The approximate location of his parking area is marked on the attached Sketch B. [Note 10] He often parked within this area large vehicles with equipment attached, as well as cement mixers and other equipment used in his masonry business, and had co-workers park their vehicles there as well.

19. Sometime during the mid-1990s, Coleman, Sr. extended the parking area at the end of the Gravel Driveway further onto 22 Clifford Road by digging approximately eight feet deep into the existing hill and installing railroad ties framing the parking area.

20. Ms. Stafford parked in the Gravel Parking Area, also sometimes referred to as "Sue's Parking Spot," located within the Disputed Area.

21. In approximately the mid-1980s, shortly after purchasing the Stafford Property, Mr. Coleman, Sr., replaced and upgraded the existing walkway and brick steps and handrail that led from the Stafford house. The trial evidence did not establish with any certainty whether the original steps went across the common boundary line or not, but it is likely they did. It is clear that the extension crossed the line by about three to four feet.

22. A short time after upgrading the steps, Mr. Coleman, Sr., installed several cobblestones leading from the brick steps to the gravel area.

23. In the early 1990s, Michael Galletti planted the Arborvitae along the westerly edge of the Gravel Parking Area. The Arborvitae physically framed the area where Ms. Stafford parked her vehicle. Michael Galletti planted the Arborvitae to screen the Gravel Parking Area from the rest of his property and create privacy.

24. Michael Galletti never mowed or maintained the lawn between the Gravel Parking Area and the Stafford house, nor did he mow or maintain the lawn between the Gravel Parking Area and the Clifford Road Frontage, above (to the east of) the Arborvitae. Mr. Coleman, Sr. and Ms. Stafford's children used the above lawn areas for typical recreational activities, such as playing, riding bicycles and occasional winter sledding.

25. The Galletti and Coleman families were good friends and neighbors. For example, the Colemans attended Michael Galletti's wedding, the two families spent holidays together, and sometimes performed renovation work on each other's homes.

26. Mr. Coleman, Sr., and Michael Galletti engaged in mutual maintenance of the Gravel Driveway and Gravel Parking Area, splitting the costs of yearly snowplowing as well as the costs of replenishing the crushed stone, when necessary.

Uses of Driveway Easement/Gravel Driveway, Disputed Area and Clifford Road Frontage: 1997 to 2011

27. After Michael Galletti conveyed the Flett Property at 20 Clifford Road to his son, Randy C. Galletti, on June 12, 1997, Randy Galletti continued to abide by the terms of the License regarding parking and the use of the Clifford Road Frontage.

28. Randy Galletti did not remember having an express conversation with his father about this arrangement, stating his father either "could have just told [him]," or it could have been "an assumption or just something that was just ingrained into [his] brain at a young age."

29. Randy Galletti conveyed the Flett Property at 20 Clifford Road to Tadd and Cara Clelland on April 30, 2001. In doing so, Randy Galletti expressly discussed the existing parking and lawn arrangement with the Clellands, telling them that "[Ms. Stafford] owned a strip of land between [Nos.] 20 and 24 [Clifford Road] and that [he] maintained it and then she would park beyond the Arborvitaes."

30. Tadd Clelland discussed the arrangement with Michael Galletti also, who explained to Mr. Clelland that he "basically had given Ms. Stafford the driveway near the [A]rborvitae." Tadd Clelland confirmed the content of his conversation with Randy Galletti, in which he was told "there was a verbal agreement that . . . [Ms. Stafford] was able to park in the [space beyond the Arborvitae] in exchange for the use of back yard."

31. Shortly after the Clellands moved in, Ms. Stafford introduced herself to Tadd Clelland and they discussed the parking and lawn arrangement. During the Clellands' ownership of the Flett Property, Ms. Stafford continued to park in the Gravel Parking Area while the Clellands continued to maintain the Clifford Road Frontage and treat it as though it was their back yard.

32. The Clellands also made some improvements to the Clifford Road Frontage, such as installing a ring of stones around a tree and a white post-and-rail fence.

33. Tadd Clelland sometimes parked his vehicle at the end of the Gravel Driveway, along the northern boundary of the Flett Property. He would also sometimes park his boat in that area (approximately where Coleman, Sr. parked his truck and equipment when he lived at the Stafford Property).

34. During the Clellands' ownership of 20 Clifford Road, they and Ms. Stafford jointly maintained the Driveway Easement and Gravel Driveway by splitting the costs of snowplowing and, when needed, the addition of new gravel.

Uses of Driveway Easement/Gravel Driveway, Disputed Area and Clifford Road Frontage: 2011 to 2014

35. The Clellands conveyed the Flett Property at 20 Clifford Road to Raymond C. Cetner and Amy K. Cetner on October 3, 2011. In connection with the conveyance, Tadd Clelland "shared with Ray Cetner that [Ms. Stafford and he] had [an] agreement that she could park in the [Gravel Parking Area] in exchange for use of the back yard."

36. Ray Cetner discussed the parking arrangement with the Clellands at the home inspection of the Flett Property prior to his purchase, in which he was told "20 Clifford uses the [Clifford Road Frontage]. In exchange for that, [Ms. Stafford] parks her car where – behind the Arborvitae. And then, also, Emerson Coleman, [Jr.,] parks his car at the end of the driveway by the railroad ties."

37. At an undetermined point between the home inspection and after purchasing 20 Clifford Road, Ray Cetner engaged in a discussion with Ms. Stafford regarding the parking and lawn arrangement, in which she relayed "pretty much the same information that the Clellands did."

38. Mr. Cetner sometimes stored his boat in the area at the end of Gravel Driveway, along the northern boundary of 20 Clifford Road. Ms. Stafford at one point complained about the boat's location and asked Mr. Cetner to move it, but he refused.

39. On or around May 2012, Mr. Cetner extended the Arborvitae southward, to the lot line of the Clifford Road Frontage, for increased privacy.

Uses of Driveway Easement/Gravel Driveway, Disputed Area and Clifford Road Frontage: 2011 to 2014

40. The Cetners conveyed 20 Clifford Road to Defendant Ms. Flett on September 26, 2014.

41. In an email exchange dated September 17, 2014, Ms. Flett's real estate broker asked Mr. Cetner for the "history of why [the neighbors park] on this property." Mr. Cetner responded that the neighbor has been "parking on the property for as long as she has lived there, which is roughly 30 years. In return, we have use of her property, which is the strip of land to the right of our house if you were facing it from the road. This land runs parallel to ours from the street all the way up to her house." [Note 11]

42. On September 29, 2014, Ms. Stafford approached Ms. Flett as she was moving into 20 Clifford Road to discuss the parking and lawn arrangement. Ms. Flett told her that she was aware of the arrangement but would be unable to continue it, and offered to discuss a reasonable plan for Ms. Stafford to accommodate her parking needs going forward. [Note 12]

43. Ms. Flett commissioned a survey of her property in October 2014. After the survey was completed, Ms. Flett attempted to discuss alternative parking arrangements with Ms. Stafford but did not receive a response.

44. On November 10, 2014, Ms. Flett, through her attorney, sent Ms. Stafford a letter detailing the rights associated with the Driveway Easement and demanded that all of Ms. Stafford's uses, other than those allowed pursuant to the Driveway Easement, cease.

45. On November 18, 2014, Ms. Stafford came to Ms. Flett's house to discuss the letter and how to resolve the parking situation. Potential solutions, according to Ms. Flett, included building out a new access way as a continuation commencing at the end of the existing Driveway Easement, as well as using the Clifford Road Frontage for access, since use of that area would be returned to Ms. Stafford.

46. Ms. Stafford asked Ms. Flett to remove the portions of the white post-and-rail fence, erected by the Clellands that encroached onto the Clifford Road Frontage. Ms. Flett agreed, and the encroaching portion was removed before Thanksgiving, 2014.

47. Following this discussion, Ms. Stafford, her family, and guests used the Clifford Road Frontage to access the Stafford Property and house for some period of time. They did not install a driveway, but drove over the lawn area.

48. Due to the severity of the 2014-2015 winter and amount of snow, Ms. Stafford was allowed to park in the Gravel Parking Area during the winter.

49. In April 2015, Ms. Flett installed a six foot fence on her property, along the southern and eastern lot lines of the Flett Property. The fence (Fence) is located approximately four to six inches off the lot line, and crosses the stairs leading from the Stafford property to the Gravel Parking Area, effectively cutting the stairs off as access to the parking space. This law suit followed.

50. On July 27, 2015, Ms. Flett and Ms. Stafford entered into a Stipulation of the Parties, filed with this court, which precluded any parking on the Driveway Easement or in the Gravel Parking Area.

51. From May to June 2015, Ms. Stafford, her family, and guests used the Clifford Road Frontage to access the Stafford Property and for parking, but they did not install a driveway over the area.

First Injunction Order

52. Ms. Flett moved for preliminary injunctive relief in August 2015, due to Ms. Stafford's construction of an extension onto the Stafford Property of the Gravel Driveway at the end of the Driveway Easement. This extension resulted in Ms. Stafford resuming use of the Driveway Easement to access the Stafford Property.

53. An order (First Injunction Order) for the following preliminary injunctive relief issued on September 10, 2015: 1) precluding all parking within the Driveway Easement, excepting Ms. Stafford's work men; 2) precluding any reversing down the Gravel Driveway toward Clifford Road; 3) precluding speeds in excess of ten miles an hour on the Gravel Driveway; 4) allowing Ms. Stafford to access her property via the Driveway Easement; and 5) requiring Ms. Stafford to implement erosion control and drainage mitigation measures to prevent soil erosion and runoff onto the Flett Property caused by the construction of the driveway extension.

a. The First Injunction Order stated it applied to the parties, as well as their "invitees, family members or guests and including delivery, service, construction or repair vehicles."

Amended Order

54. On February 5, 2016, the court amended the First Injunction Order, adding to the terms of the First Injunction Order thereby requiring that: 1) Ms. Stafford install a trench drain to prevent erosion and runoff no later than February 23, 2016; 2) Ms. Flett deliver a copy of the snowplowing contract to Ms. Stafford and for the parties to split the cost; 3) Ms. Stafford is responsible for any plowing needed on her driveway extension; 4) vehicles are prohibited from reversing up the Gravel Driveway from Clifford Road; and 5) Ms. Flett remove the fence located to the right of Ms. Stafford's driveway extension.

55. The following events and facts relevant to the complaint for contempt action brought by Ms. Flett were established at trial:

a. Ms. Stafford installed a trench drain on February 23, 2016. The trench drain is approximately nine feet wide, falling three feet short of the asphalt across which it extends.

b. Ms. Flett delivered a copy of the snowplowing contract to Ms. Stafford. The contract calls for snowplowing of the Gravel Driveway when there are four or more inches of snow.

c. Ms. Flett removed the portion of the fence adjacent to the driveway extension in January 2016.

56. When the First Injunction Order issued, Ms. Stafford's son, Emerson Coleman, Jr., owned and drove a red Toyota Tundra. In February 2016, Coleman, Jr., owned and drove a black Toyota Tundra.

57. Jacqueline Page owns a white Chevy Tahoe. Matthew Page owns a white GMC Sierra pickup truck.

Evidence Regarding Violations of the Injunctive Orders

58. Based on videographic evidence at trial, from October 2015 to the present, the following incidents occurred:

a. A red Toyota Tundra reversed down the Gravel Driveway from the Stafford Property to Clifford Road eight times.

b. A black Toyota Tundra parked on the Gravel Driveway two times.

c. A white Chevy Tahoe reversed down the Gravel Driveway from the Stafford Property to Clifford Road three times and reversed up the Gravel Driveway from Clifford Road to the Stafford Property two times.

d. A white GMC Sierra reversed down the Gravel Driveway from the Stafford Property to Clifford Road six times and reversed up the Gravel Driveway from Clifford Road to the Stafford Property one time.

e. Various guests and contractors reversed down the Gravel Driveway from the Stafford Property to Clifford Road six times, and have parked in the Gravel Driveway two times.

f. Various delivery vehicles reversed down the Gravel Driveway from the Stafford Property to Clifford Road two times and reversed up the Gravel Driveway, from Clifford Road to the Stafford Property five times.

g. Various delivery vehicles have parked on the Gravel Driveway four times.

Snowplowing Arrangement and Gravel Delivery

59. Ms. Flett paid a total of $150.00 for snowplowing services for the winter of 2015-2016.

60. On April 22, 2016, Ms. Stafford tendered a check in the amount of $30.00 to Ms. Flett as payment for snowplowing during the 2015-2016 winter season. Ms. Flett refused to accept this check as full contribution to the snowplowing bill, and did not cash the check.

61. In October 2015, Ms. Flett re-graveled the Driveway Easement and Gravel Driveway for a total cost of $1,088. Ms. Stafford has not reimbursed Ms. Flett for her half of the cost. [Note 13]

II. Ms. Stafford's Use of the Disputed Area, including the Gravel Parking Area (Sue's Parking Spot") was Permissive

Ms. Stafford argues she acquired title to the Disputed Area by adverse possession or, alternatively, she acquired a prescriptive easement over the area for parking and typical recreational uses associated with yards in residential areas. Ms. Flett counters that Ms. Stafford has failed to carry her burden of proof on all elements for either claim. 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 , 261 (1964); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43–44. Adverse possession requires the additional burden of proving that a party's use was exclusive. Ryan, 348 Mass. at 262. Evidence of express or implied permission rebuts the presumption of adverse use. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). Whether the elements for either adverse possession or a prescriptive easement have been satisfied is a factual question, and Ms. Stafford, the party asserting the claim bears the burden on every element. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 262 (2009); Boothroyd, 68 Mass. App. Ct. at 44.

An unexplained use of land by one who is not the owner for twenty years is deemed sufficiently adverse for purposes of establishing prescriptive rights, unless the use is controlled or explained. Houghton, 71 Mass. App. Ct. at 836. Here, Ms. Flett argues Ms. Stafford's use of the Gravel Parking Area, and the entirety of the Disputed Area, can be explained as not adverse but permissive. In such a case, it is incumbent on the record owner to prove the easement existed under some "license, indulgence, or special contract inconsistent with a claim of right by the other party." White v. Chapin, 94 Mass. 516 , 519–520 (1866). The record owner can defeat the claim by producing evidence of express or implied permission, demonstrated by many factors, such as the "character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties." Totman v. Malloy, 431 Mass. 143 , 145 (2000). The court finds Ms. Flett has produced such evidence, proving that the arrangement entered into by Michael Galletti with Mr. Coleman, Sr., and understood and implicitly agreed by Ms. Stafford, as co-owner and then sole owner of the Stafford Property, constituted an oral, reciprocal implied agreement which this court has specifically found constitutes a License. The License was aimed at correcting the deficiencies affecting their properties created by the manner in which the lots were shaped upon division by the common owner.

Ms. Flett characterizes Ms. Stafford's use of the Disputed Area as a reciprocal license, allowed under a grant of permissions between two neighboring families. In 1982, shortly after moving into 20 Clifford Road, Ms. Flett alleges Mr. Coleman, Sr. and Michael Galletti, then owner of 20 Clifford Road, agreed to swap the use of portions of each other's properties. Michael Galletti, having only a shallow backyard, was allowed to use the Clifford Road Frontage as an extensive of his backyard, and he maintained and landscaped it accordingly, even installing underground sprinklers within its boundaries. Mr. Coleman, Sr., and Ms. Stafford agreed not to use the Clifford Road Frontage for any purpose including to access to their property, even though it clearly constituted their legal frontage and they had that right. In return, Mr. Coleman, Jr., Ms. Stafford, and their family members were permitted to use a portion on the easterly side of the Flett Property (largely referred to herein the Disputed Area), located above a notional line that was later delineated by Mr. Galletti's Arborvitae, as an extension of their property for parking, access and other yard uses. It was understood that Michael Galletti would not use the Disputed Area as part of this arrangement.

Ms. Stafford, however, argues she and the Gallettis reached a different understanding regarding parking and the use of the Clifford Road Frontage, one that did not include parking in the portion of the Disputed Area referred to as "Gravel Parking Area." She claims that the "agreement" reached between Mr. Coleman, Sr., and Michael Galletti included only the parking in the area at the end of the Gravel Driveway, where Mr. Coleman, Sr. parked his truck and equipment, and which he later extended further into his property and framed with railroad ties. She maintained throughout that the Disputed Area where she parked was not part of any arrangement or swap between her and Michael Galletti, because she and Mr. Coleman, Sr. believed they already owned that area. As such, both she and Mr. Coleman, Sr. deny ever asking permission or making arrangements to park in the Gravel Parking Area because they believed they did not need it.

A property owner's grant of permission to another renders that use "permissive," preventing any alleged prescriptive rights or adverse possession. See Kilburn v. Adams, 48 Mass. 33 , 40 (1843) (stating if the record owner has conferred permission to come upon his or her land, the required element of adversity is absent, and title by adverse possession or prescriptive easement rights cannot arise). While the parties in this case did not state expressly what the arrangement was or commit its terms in writing, their discussions and actions were sufficient to create a license, or an implied license. An implied license "refers to permission which is more than mere acquiescence[.] Permission of this character carries authority to do some act or a series of acts on the land of another without passing any estate in the land and in its nature is revocable." Spencer, 340 Mass. at 93 (citations omitted) (emphasis added).

Implied permission, like express permission, is sufficient to defeat an adverse or prescriptive claim. Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). Several factors may distinguish implied permission from acquiescence, such as 1) acts of dominion consistent with record title, Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968); 2) control, Houghton v. Johnson, 71 Mass. App. Ct. at 842–843; and 3) the adverse claimant's acquiescence to that control. Id. at 843.

The stipulated facts, together with the facts found by the court at trial, demonstrate that all of the uses asserted by Ms. Stafford in this case fall within the scope of the License and therefore were permissive. The License constituted an informal land swap, under which the Coleman and later Stafford family members used the Gravel Parking Area as part of their property. While they used the Gravel Parking Area primarily for Sue's parking, they also used it for general landscaping and recreational yard uses around the figurative edges of Sue's Parking Spot. In exchange, Michael Galletti used the Clifford Road Frontage as an extension of his back yard. Beginning in 1982, the License was renewed explicitly between Ms. Stafford and each successor-in-title to Michael Galletti. When Ms. Flett acquired 22 Clifford Road in 2014, she chose to terminate the License because she had a need for the area of Sue's Parking Spot and the gravel parking area where Mr. Coleman had parked for her horse trailer that she wanted to park on her property. Additionally, she did not desire using the Clifford Road Frontage as a backyard, as her predecessors had.

Despite Ms. Stafford's claims to the contrary, the License encompassed more than the use of a portion of 20 Clifford Road at the end of the Gravel Driveway for parking. It included the right of Mr. Coleman, Sr., and later Emerson Coleman, Jr., to park vehicles and equipment at the end of the Gravel Driveway, and to have guests and employees park there as well. Also, as demonstrated by Ms. Stafford's conduct during both Gallettis' ownership, the License covered use of the Gravel Parking Area. During Michael Galletti's ownership of 20 Clifford Road, Ms. Stafford informed him that if access to the Gravel Parking Area was obstructed, she would drive up the Clifford Road Frontage. Until Ms. Flett purchased the Flett Property, each owner in the chain of title to the Flett Property and Ms. Stafford all acted in accordance with the understanding that the License included the Gravel Parking Area.

The existence of the License is supported by the testimony and behavior of each successive owner of 20 Clifford Road. When explaining the License arrangement to Tadd Clelland, both Michael and Randy Galletti described it as allowing Ms. Stafford to park "beyond the Arborvitae" in the Gravel Parking Area. All subsequent owners of the Flett Property conveyed this understanding to their successor: 20 Clifford Road used the Clifford Road Frontage as an extended backyard, while Ms. Stafford parked in the Gravel Parking Area and the gravel area at the end of the Driveway Easement. Ms. Stafford's actions and conversations with each subsequent owner of 20 Clifford Road also belie the claim that the Gravel Parking Area was not included in the License.

Uses commenced with permission are presumed to continue as permissive. MacLeod v. Davis, 290 Mass. 335 , 339 (1935). The presumption is rebuttable, with the burden falling on the party claiming adverse use. Id. Ms. Stafford has failed to present evidence showing any actions she or her family members may have taken to place the owners of the Flett Property on notice that they were operating outside the scope of uses permitted under the License. Ms. Stafford approached both Tadd Clelland and Ms. Flett upon their purchase of 20 Clifford Road to discuss the continuation of the License. While it is undetermined who initiated the conversation, Ms. Stafford also discussed the continuation of the License with Ray Cetner. In each conversation, Ms. Stafford characterized the License as including her ability to park beyond the Arborvitae in the Gravel Parking Area. Ms. Stafford's efforts to continue the License from each new owner of 20 Clifford Road supports the inference that her use of the Gravel Parking Area has always been permissive.

See Truc v. Field, 269 Mass. 524 , 530 (1930). [Note 15] Her position at trial that the Gravel Parking Area was not part of the License was not credible.

Regarding the portions of the Disputed Area not used by Ms. Stafford for parking, such as the Sloped Lawn, the court finds that these areas were part and parcel of use and enjoyment of the Gravel Parking Area, operating almost as accessory uses to the main, authorized parking use. This would include the installation of several cobblestones, and minor aesthetic landscaping, as well as the brick steps. The brick steps, at least the portion extending over the common boundary line between the Stafford and Flett properties and onto the Flett Property, accommodated Ms. Stafford's walk from her house to the Gravel Parking Area. Similar to the ancillary lawn space provided by the Sloped Lawn and the minor landscaping done to it, the brick steps served as access to the Gravel Parking Area and are part of the implied permissive use granted under the License.

III. Declaratory Relief as to the Driveway Easement

In Count III of her Amended Verified Complaint, brought under G. L. c. 231A, Ms. Stafford seeks a declaratory judgment as to the rights of the parties under the Driveway Easement. Specifically, she seeks a declaration that reversing on the Gravel Driveway in either direction, as well as allowing deliveries to the Stafford Property, are within the scope of the Driveway Easement. Ms. Stafford also argues any issue regarding the payment of Ms. Flett's gravel order was not raised in the complaint for contempt and should not be considered at this time.

Ms. Flett also requests declaratory relief. See Cherkes v. Town of Westport, 393 Mass. 9 , 12 (1984) (stating an action for declaratory relief requires a declaration of the rights of all parties even if relief is denied to the plaintiff). A declaratory judgment in her favor would give rise to a permanent injunction enjoining Stafford and her invitees (including family members and delivery vehicles) from reversing up or down the Gravel Driveway, parking within the Driveway Easement, and traversing at speeds in excess of ten miles per hour. Further, Ms. Fleet seeks a declaration that she owns the entirety of the Disputed Area (including the Gravel Parking Area), free and clear of any rights of Ms. Stafford. Based on the facts found, and for the reasons set forth herein, the court rules in Ms. Flett's favor pursuant to the count brought under G. L. c. 231A.

II. Ms. Flett's Complaint for Contempt will be Dismissed

Prior to trial, the parties engaged in extensive back and forth deliberations regarding preliminary injunctive relief sought by both parties at various times. Ms. Flett first sought preliminary injunctive relief in August 2015, resulting in the First Injunction Order issued by the court on September 10, 2015. She then filed a complaint for contempt on December 14, 2015, alleging several violations of the First Injunction Order. Following a hearing, the Amended Order was issued on February 5, 2016. Ms. Flett now alleges violations of both orders (collectively, Injunctive Orders) by Ms. Stafford, her family members, and invitees. It was clear at trial, if not well before, that the relationship between the parties had become extremely strained over the driveway and parking issues.

A finding of contempt requires "clear and convincing evidence of disobedience of a clear and unequivocal command." In re Birchall, 454 Mass. 837 , 853 (2009). The purpose of a civil contempt is "remedial," and the remedy fashioned is within the judge's discretion. Id. at 847; Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125 , 129 (1999). It is intended to coerce a party into compliance with the court's order and to compensate the complainant for any losses sustained as a direct result of the alleged violation. Gianetti v. Thomas, 32 Mass. App. Ct. 960 , 961 (1992). The burden of proof falls on the complainant. Id. at 852. Because Ms. Flett also brought the contempt action against Emerson Coleman, Jr., Jacqueline Page, and Matthew Page – who were not parties to the original action – she must demonstrate that they knowingly assisted Ms. Stafford in violating the Injunctive Orders. Bird v. Capital Site Mgmt. Co., 423 Mass. 172 , 179 (1996). The court denies Ms. Flett's complaint for contempt and awards no damages. [Note 16]

a. Reversing on the Gravel Driveway

While several videos were viewed by the court as they were entered in evidence, none depicted Ms. Stafford violating the restrictions placed on vehicular use under the Injunctive Orders. As to the three members of her family, named only in the Contempt Complaint, Ms. Flett failed to carry her burden in proving that any of these individuals knowingly assisted Ms. Stafford or acted in concert with her to violate the Injunctive Orders. Also, the videos were not sufficiently clear to identify the drivers of any of the vehicles, even though the type and make of the vehicles were consistent with those owned by Ms. Stafford's family members. Additionally, Ms. Flett failed to demonstrate any damages suffered as a result of vehicles, including service and delivery vehicles, reversing in either direction on the Gravel Driveway, or parking within the Driveway Easement.

b. Drainage

Ms. Flett alleges Ms. Stafford violated the Injunctive Orders by failing to implement proper soil and erosion measures. Specifically, she alleges the drainage pipe installed by Ms. Stafford was too short to provide proper drainage. However, the Injunctive Orders did not state any required dimensions for the drain pipe, and are silent on installation specifications. Because the Injunctive Orders do not contain a "clear and unequivocal command" as to the soil and erosion measures to be installed, Ms. Stafford cannot be said to have violated those terms of the Amended Order.

c. Snowplowing

Ms. Flett alleges Ms. Stafford has failed to tender her portion of the payment under a snowplowing contract for plowing of the Driveway Easement. Under the Amended Order, the court ordered Ms. Flett to deliver a copy of the contract she entered into for snowplowing of the Driveway Easement, with the parties agreeing to split the costs equally. This court has found that she did that and she is entitled to reimbursement for one half of the amount she paid the snowplowing contractor. In addition, the evidence established Ms. Stafford owes Ms. Flett one half of the invoice for gravel, her portion being $544.00. [Note 18]

III. Conclusion

Ms. Stafford has not carried her burden of proof with respect to establishing title by adverse possession to any portion of the Flett Property. Nor has she carried her burden in establishing prescriptive rights to use the Gravel Parking Area, referred to as "Sue's Parking Spot," nor any area adjacent it on the Flett Property. Ms. Stafford has also not established the right to maintain the brick stairs in front of her home that extend beyond the common boundary line between the parties' properties.

With respect to Ms. Flett's Complaint for Contempt, this court finds and rules that she has failed to carry her burden with respect to actions by Ms. Stafford or Emerson T. Coleman, Jr., Jacqueline Page, and Matthew Page. While the non-party defendants to the Complaint for Contempt likely had an understanding that injunctions had issued and a general understanding of the terms of the court's orders, there was no showing of a wilful disobedience of those orders. Finally, the court recognizes that the parties own and likely will continue to live on their adjacent properties some time is required in order to reconfigure the Stafford Property to either complete the extension of the Driveway Easement or install access within the Clifford Road Frontage and create parking on the Stafford Property to implement this decision. The court also recognizes that Winter weather may become a factor in complying with some or all of the ramifications of this decision. For those reasons, the court invites counsel to discuss the form a judgment should take and propose the terms of same to accommodate the realities of the situation, no later than January 31, 2017. If the court receives nothing from counsel, acting together or individually, by that date, it will issue a judgment on both the underlying complaint and the complaint for contempt in accordance with this decision, without further input from Counsel.


FOOTNOTES

[Note 2] Ms. Stafford's two children and son-in-law are named Defendants in the portion of the trial that is connected to the complaint for contempt.

[Note 3] All recording references are to the Plymouth County Registry of Deeds.

[Note 4] A copy of the Haire Plan is attached as Sketch A.

[Note 8] Michael A. Galletti died in 2006.

[Note 9] Although Coleman, Sr. testified this reciprocal agreement included a swap of the Clifford Road Frontage for the parking space at the end of the Gravel Driveway only, the court did not credit that characterization and finds that the agreement included the area that came to be known as "Sue's Parking Spot" or the "Gravel Parking Area" and immediately adjacent areas.

[Note 10] Sketch B is a reduced version of the Sketch Plan introduced as a chalk at trial.

[Note 11] Mr. Cetner was describing the Clifford Road Frontage.

[Note 12] The court credits Ms. Flett's testimony that she needed the Gravel Parking Area to maneuver her horse trailer. She desired to park the trailer at the end of the Gravel Driveway, in approximately the same location where Messrs. Clelland and Cetner parked their boats and backing into Sue's Parking Spot would be the way Ms. Flett would be able to turn her trailer around.

[Note 13] Following trial and the filing of post-trial briefs, Plaintiff moved to amend the Amended Order on October 25, 2016. All parties appeared before the court on October 27, 2016. Plaintiff sought the amendment to clarify the restrictions placed on service and delivery vehicles. An order further amending the prior injunctive relief issued October 28, 2016 (Second Amended Order), allowing vehicles delivering essential services, such as oil, to park at the end of the Driveway Easement to delivery products or service the Stafford Property, as well as to reverse up or down the Driveway Easement. The Second Amended Order also required Ms. Stafford to notify those service providers of these requirements and allowed either party to post a sign advising of the ten mile per hour speed restriction.

[Note 15] Alternatively, even if the court accepted Ms. Stafford's claim that the scope of the original License did not include use of the Gravel Parking Area beginning in 1982, her subsequent conversation with Tadd Clelland in 2001, in which she sought and received permission to continue parking in her usual space, may have been sufficient to interrupt the twenty year period required for the ripening of prescriptive rights. It is not necessary to reach that question, given the facts found by the court.

[Note 16] Damages are intended to compensate an injured party for actual losses sustained by a violation of a court order. Lyon v. Blumfield, 355 Mass. 738 , 744 (1969). Ms. Flett alleged no actual damages resulting from the vehicles continuing to reverse up or down the Gravel Driveway, or from delivery vehicles.

[Note 18] See Mass. R. Civ. P. 15(b): "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."