JOHN MOSS and AMY BORNER v. GARY LINGLEY and ANNMARIE LINGLEY as Trustees of the J.M.J. Realty Trust and TOWN OF WAYLAND, acting by and through its BOARD OF SELECTMEN, BOARD OF PUBLIC WORKS and CONSERVATION COMMISSION.

Introduction

The plaintiffs, John Moss and Amy Borner, own the property at 50 and 54 Lake Shore Drive on Dudley Pond in Wayland. It is part of the Woodland Park Subdivision, which was laid out on a plan entitled "Woodland Park, Wayland, Mass." dated September 3, 1914 and recorded at the Middlesex South Registry of Deeds (the "1914 Plan"), a copy of which is attached as Ex. 1. That plan, however, has almost no relationship to how the area has actually developed. See Ex. 2 (present-day aerial photograph). The lots on the plan were combined into larger parcels before houses were built on them. [Note 1] Others were combined into extensive conservation areas. The Hultman Aqueduct to the Quabbin Reservoir took many more. As a result, many of the roadways shown on the plan were never built, and no steps have ever been taken to build them. See Ex. 2. In particular, the "Crown Path" roadway shown across the plaintiffs' property on the 1914 Plan has never been used or developed. It is, and has always been, only a "paper street" [Note 2] and has long-since been incorporated into the plaintiffs' property.

Despite this, and based solely on the existence of Crown Path on the 1914 Plan, both defendant J.M.J. Realty Trust and the Intervenor Defendant Town of Wayland have contended that they have the right to use Crown Path for access to Dudley Pond. The Trust has previously been defaulted, [Note 3] leaving only the town as an active defendant. [Note 4] The town has never used Crown Path for such access, has no need to do so, and has always used other routes to access the pond.

The plaintiffs contend that the town has no right to use Crown Path because, to the extent it ever had an easement to do so, that easement has long-since been abandoned. The town disagrees.

This case was tried before me, jury-waived. Based on the testimony and documents admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully explained below, I find and rule that abandonment has occurred, and thus that whatever easement rights previously existed for any of the town's parcels to use Crown Path now no longer exist.

Facts

These are the facts as I find them after trial.

The Woodland Park Subdivision

The Woodland Park Subdivision plan laid out 969 lots on approximately eighty-five acres of land, with Dudley Pond to the south and Old Connecticut Path to the north. Nearly all of those lots have been combined into larger parcels. The 1914 Plan also depicts a network of roadways, most of which, like Crown Path, are only paper streets which have never been developed.

The Town's Property

The town owns the entirety of Dudley Pond. The town also owns, in whole or in part, 159 lots as shown on the 1914 Plan, which are presently configured as eleven parcels (collectively, Town Parcels 1-11) and administered by various town departments. [Note 5] Town Parcels 1, 2, 3, 4, and 5 consist of deed-restricted conservation land and are administered by the town's conservation commission. Town Parcel 6, acquired by a taking for "highway purposes" (although not presently used as such), is administered by the town's department of public works. The town's board of selectmen administers Town Parcels 7, 8, 9, and 10 (acquired by tax lien foreclosures), as well as Town Parcel 11 (acquired by quitclaim deed). The Town Parcels are, for the most part, wooded, unimproved, and not presently in active use.

At issue is the town's claim of a right of way over Crown Path, which is based solely on the depiction of Crown Path on the 1914 Plan and the reference in certain of the town's deeds to the right to use the ways shown on that plan. [Note 6] As discussed more fully below, regardless of what easement rights may have existed on that basis, all such rights to the use of Crown Path have been abandoned.

The Plaintiffs' Property

The plaintiffs' property consists of thirteen (and a portion of a fourteenth) adjoining lots shown on the 1914 Plan. [Note 7] They acquired title to 50 Lake Shore Drive [Note 8] in 2006, and title to the adjacent property at 54 Lake Shore Drive in 2008. [Note 9] After purchasing 50 Lake Shore Drive, the plaintiffs demolished the existing house on the property, constructed a new one, and remodeled its garage. They subsequently demolished the house on 54 Lake Shore Drive and, with extensive landscaping, began using that parcel's land as part of their lawn. The two properties are thus now combined into a single parcel with a single dwelling. [Note 10]

The plaintiffs' property includes the fee to all of the land abutting Crown Path as depicted on the 1914 Plan. By operation of the Derelict Fee Statute, the plaintiffs own the entirety of the fee in Crown Path as well. [Note 11] See G.L. c. 183, § 58.

Crown Path

Crown Path has never been used or developed as a roadway. [Note 12] As shown on the 1914 Plan, it appears to extend from Lake Path (presently Lake Shore Drive) to Dudley Pond, between lots now owned by the plaintiffs. It is approximately two-hundred-and-twenty feet long, varies from nineteen to twenty-one feet wide, and has a hairpin turn near the street. On the ground, most of Crown Path is relatively flat, but toward Dudley Pond it slopes down and has a steep, rocky drop to the water.

Before the plaintiffs combined 50 Lake Shore Drive and 54 Lake Shore Drive into one residence, most of Crown Path was used as part of 54 Lake Shore Drive's side yard. The front portion of the remainder was used as part of 50 Lake Shore Drive's driveway, which has been used only for access to 50 Lake Shore Drive and has never gone farther than its house (i.e., never to the pond itself). The rest was part of 50 Lake Shore Drive's side yard.

Other than the part used for 50 Lake Shore Drive's driveway, Crown Path was physically impassable by motor vehicle. Crown Path was heavily wooded from Lake Shore Drive through its hairpin turn, and it contained shrubbery and trees toward the water. This shrubbery and trees within Crown Path made vehicular travel over it impossible. Various other obstructions in Crown Path also prevented passage over it, including a concrete block retaining wall that extended approximately twenty-six feet over it, and portions of two chain link fences — one an approximately six-foot section of fencing near the garage on 50 Lake Shore Drive, and the other an approximately ten-foot section of fencing near the pond. In addition, the former owners of 54 Lake Shore Drive used Crown Path as a year-round storage area for their pontoon boat, trash barrels, a barbeque, a lawnmower, and other household goods.

At present, most of Crown Path is used as part of the plaintiffs' front lawn, and some is used as part of their driveway. [Note 13] Its entrance by Lake Shore Drive is partially blocked by a stone wall, and is blocked by the water's edge by brush and trees.

So far as the evidence showed, no one other than the owners of 50 Lake Shore Drive and 54 Lake Shore Drive has ever used Crown Path for access to the water and, prior to the filing of this case, only defendant Gary Lingley had ever asserted a right to do so. [Note 14] As the town stipulated, there was no evidence of anyone, town employees included, having ever used Crown Path to access the pond. And, prior to this action, the town never requested anyone to remove obstacles within Crown Path or demanded that Crown Path be open for its benefit.

In short, Crown Path has never been used as a right of way to the water, by anyone, at any time. [Note 15]

Further relevant facts are set forth in the Analysis section below.

Analysis

The town's claimed right of access over the Crown Path area is based solely on the 1914 Plan's depiction of Crown Path and the references in some of its source deeds to those lots' right to use the subdivision's roads. The plaintiffs contend that, to the extent the town ever had an easement over Crown Path (an issue I need not, and do not, decide), all such rights have been abandoned. The plaintiffs are correct that abandonment has occurred.

"[A]bandonment of an easement is a question of intention to be ascertained from the surrounding circumstances and the conduct of the parties." Carlson v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009) (citing Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965)). Nonuse by itself does not prove abandonment, see Cater v. Bednarek, 462 Mass. 523 , 528 n.15 (2012), but it is a factor, when combined with others, from which abandonment can be inferred. See Sindler, 348 Mass. at 592-593 ("[F]or a period of over thirty-five years, the respondent . . . permitted the occurrence of events and relatively permanent changes in the disputed area, all of which combine to warrant an inference that it has abandoned its rights to the easement in question."); Lund v. Cox, 281 Mass. 484 , 492-493 (1933) ("Physical obstructions on the servient tenement, rendering user of the easement impossible and sufficient in themselves to explain the nonuser, combined with the great length of time during which no objection has been made to their continuance nor effort made to remove them, are sufficient to raise the presumption that the right has been abandoned and has now ceased to exist."); Carlson, 74 Mass. App. Ct. at 158-160. See also Siebecker v. Orefice, 22 LCR 178 , 181-182, 2014 WL 1896414 at *6 (2014) (Land Ct.) aff'd, 87 Mass. App. Ct. 1126 , 2015 WL 3477162 (June 3, 2015) (Mem. and Order Pursuant to Rule 1:28) ("[A]bandonment may be found based on a totality of three elements: (1) long-term nonuse, (2) acquiescence by the dominant estate to obstruction of the easement, [and] (3) inconsistent use by the dominant estate."). In particular, nonuse together with the "failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment." Carlson, 74 Mass. App. Ct. at 158. See Sindler, 348 Mass. at 593; Lund, 281 Mass. at 492-493.

Here, the town has never used Crown Path, nor, until this lawsuit, asserted a right to do so. Instead, for decades, it acquiesced to the inconsistent uses that area's owners were making of it. Prior to intervening in this action, the town never protested the many obstacles — vegetation, chain link fences, a concrete retaining wall, trash barrels, a barbeque, a lawnmower, a pontoon boat, etc. — in Crown Path that prevented vehicular access over it. Nor did the town object to the plaintiff's extensive landscaping work in the Crown Path area until this lawsuit.

The town had knowledge of Crown Path through its depiction on the 1914 Plan, knowledge through decades of observation of its use by the plaintiffs in ways inconsistent with its use for access to the pond, knowledge of the practical and physical impediments to using it for access to the water, and has always used alternative routes to access the pond. All this, combined with the town's long period of non-use, is sufficient to permit an inference of abandonment. I do so, and find that the town has abandoned whatever easement rights it has over Crown Path. [Note 16]

Conclusion

For the foregoing reasons, I find and rule that the town has abandoned all rights of easement over Crown Path and so declare. Final judgment shall also now enter against defendant J.M.J. Realty Trust, declaring that it has no easement rights to use Crown Path, based on its failure to timely respond to the plaintiffs' interrogatories without good cause, Mass. R. Civ. P. 33(a)(3), (4) and (6), and its failure, again without good cause, to have counsel enter an appearance on its behalf by the court-ordered deadline of March 26, 2015. Judgment shall enter accordingly.

SO ORDERED.

exhibit 1

exhibit 2