INTRODUCTION
Plaintiffs in this case seek to establish rights to use two roads in Barnstable, Massachusetts Boulder Road and Flint Rock Road (the "Subject Roads") in order to access their otherwise inaccessible, undeveloped properties. The named Defendants include several owners of properties alleged to have deeded rights to use the Subject Roads. [Note 1]
In Count I of Plaintiffs' Second Amended Complaint, Plaintiffs claim that they have a private easement by prescription to access their properties over the two Subject Roads. In Count II, Plaintiffs claim a right to use the Subject Roads as members of the general public. [Note 2] At an April 19, 2016 case management conference following the filing of the Second Amended Complaint, Plaintiffs' allegations, particularly those underlying Count II, were discussed in detail. Following the conference, the court issued an order on April 26, 2015, stating in relevant part:
. . . . Noting that Count II seeks to establish that there is a public easement in the subject ways arising, at least in part, because of certain actions taken by the Town of Barnstable, the court observed that the Town should be named as a party if the Plaintiffs intend to pursue Count II. Now, after further review of the docket and the case file, the court believes that, due to ambiguities in the Complaint, some clarification is necessary regarding the question of whether or not the Town is a necessary party to Count II.
Therefore, to the extent the relief sought under Count II of the Amended Complaint is limited solely to a declaration that there are public rights of travel in the subject private ways, arising from continuous, actual, adverse use of the roads by the general traveling public for the statutory period, the court concludes that the Town is not a necessary Party. To the extent, however, that Plaintiffs seek a declaration that the subject ways have become prescriptive public ways as a result of both travel by the general public and certain maintenance and other actions undertaken by public authority (i.e., the Town), then the court considers the Town of Barnstable to be a necessary party for the adjudication of Count II.
In response to the court's order, Plaintiffs clarified that their claim under Count II is for a declaration that there are "public rights of travel" in the Subject Roads and not a claim that those Roads have become public ways by prescription.
It was in this context that Plaintiffs filed a Motion for Summary Judgment on July 27, 2016. The active Defendants opposed Plaintiffs' Motion for Summary Judgment and also moved to strike certain documents upon which Plaintiffs' Motion for Summary Judgment relies - more specifically, a title report prepared by Attorney Bernard Kilroy (the "Kilroy Report") and an Affidavit of Edward Otis Handy, Jr. (the "Handy Affidavit"). The court conducted a hearing on November 16, 2016, after which the court took the Summary Judgment Motion and the Motion to Strike the Kilroy Affidavit under advisement. [Note 3]
Now, for the reasons set forth below, I allow the active Defendants' Motion to Strike the Kilroy Report, and I find and rule that the undisputed material facts do not entitle Plaintiffs to judgment as a matter of law on either of the two claims asserted in their Second Amended Complaint.
ORDER ALLOWING MOTION TO STRIKE KILROY REPORT
As a preliminary matter, I address the active Defendants' motion to strike the Kilroy Report on the grounds that it does not meet the criteria for expert testimony. More specifically, Defendants note that no resume or other statement of expert qualifications have been placed before the court, in affidavit form, and that the Report itself has not been sworn to or verified. In response to the Motion to Strike, the Plaintiffs have filed a substituted version of the Report which is signed under pains and penalties of perjury, and have supplemented the Report with a one page resume. Despite these additions, I find that Plaintiffs have not adequately demonstrated the admissibility of the Kilroy Report.
Expert evidence is only admissible to the extent that the "expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in in issue." Mass. Guide Evid. § 702(a). Here, I find that Mr. Kilroy does not possess any specialized knowledge which will assist the court in determining the undisputed facts in this case. The statements made in the Kilroy Report primarily consist of conclusory legal opinions interpreting recorded instruments (but appending no sworn or certified copies of those instruments). However, legal conclusions relative to the meaning and effect of recorded instruments are more properly reserved to the court, not an expert. See Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 , 137 (2002) ("Lay and expert witnesses are precluded from giving an opinion, for the most part, that involves a conclusion of law or in regard to a mixed question of fact and law." (internal citations omitted)). "It is not the function of an affidavit to bring legal argument before the trial court . . . . That is the function of a memorandum of law.'" Bongaards v. Millen, 55 Mass. App. Ct. 51 , 54 & n.6 (quoting Lewis v. Antelman, 10 Mass. App. Ct. 221 , 227 (1980)). Accordingly, the active Defendants' Motion to Strike the Kilroy Report is ALLOWED.
PLAINTIFFS' SUMMARY JUDGMENT MOTION
UNDISPUTED MATERIAL FACTS
I find that the following facts are not in dispute.
The Plans and the Subject Roads
1. On August 23, 1968, a "Subdivision Plan of Land for Alexander Blair," dated February 1967, showing a subdivision called, "Cummaquid Hills," was recorded with the Barnstable Registry of Deeds ("Registry") in Plan Book 222, Page 85 (the "Cummaquid Hills Plan").
2. The Cummaquid Hills Plan shows the subdivision of 82± lots and the creation of several subdivision streets and ways, including Boulder Road, which runs in an east-west orientation along the southern end of the subdivision and abuts Lots 19, 22, 23, 24, 48, 49, 50, 51, 52, and 53.
3. On the Cummaquid Hills Plan, Boulder Road is labeled as a 40' wide private way. On its eastern end, Boulder Road terminates in a cul de sac abutting Lots 51 and 53. On its western end, Boulder Road terminates at Lot 19A, which lot is shown as abutting Flint Rock Road on the west.
4. Flint Rock Road is labeled on the Cummaquid Hills Plan, as an "undefined ancient private way," and is shown running in a north-south direction largely to the west of the Cummaquid Hills subdivision. It abuts only Lots 19A and 17A of the Cummaquid Hills subdivision, and is shown on the Cummaquid Hills Plan as connecting, on the north, to an "undefined Town way" named "Bragg's Lane," and running southerly into the land of William H. Peak. The Cummaquid Hills Plan includes no measurements or other descriptive details for Flint Rock Road.
5. On June 11, 1970, a plan entitled, "Town of Barnstable Layout of [a Portion of] Braggs Lane," dated May 7, 1970, was recorded with the Registry in Plan Book 238, Page 21 (the "Braggs Lane Plan"). The southern end of Braggs Lane as depicted on the Braggs Lane Plan shows a spur of Flint Rock Road which is labeled "ancient way," where it connects with Braggs Lane. No measurements or other descriptive detail are shown for Flint Rock Road.
6. A "Plan of Land in Barnstable, Mass. for Matthew Cobb," dated July 12, 1973, and endorsed on August 6, 1973 by the Barnstable Planning Board as "Approval under the Subdivision Control Law Not Required" (ANR), was recorded with the Registry on November 20, 1973 in Plan Book 277, Page 89 (the "Cobb Plan"). The Cobb Plan shows two lots, Lot 49A and Lot 49B, lying south of Boulder Road, and north of State Highway Route 6.
7. Boulder Road is labeled on the Cobb Plan as a 40' wide private way.
8. An unnamed "traveled way" is shown on the Cobb Plan, bisecting the southern end of Lot 49B. The traveled way is shown as running in an east-west direction between properties owned by the Town of Barnstable. No dimensions or other descriptive detail of such traveled way are given on the Cobb Plan.
9. One of Plaintiffs' Properties is shown on the Cobb Plan lying to the west of Lot 49B and to the north of the land owned by the "Town of Barnstable, formerly E.T. Cobb."
10. A "Plan of Land in Barnstable, Mass. for Edward E. Kelley et al.," dated September 6, 1973, and endorsed by the Barnstable Planning Board as ANR on September 17, 1973, was recorded with the Registry on February 14, 1974 in Plan Book 280, Page 64 (the "Kelley Plan"). The Kelley Plan shows three lots, Lots 1, 2 and 3, lying south of Boulder Road and north of State Highway Route 6.
11. Boulder Road is labeled on the Kelley Plan as a 40' wide "priv." way.
12. The Kelley Plan shows Flint Rock Road, which is also labeled as "traveled way." As depicted on the Kelley Plan, Flint Rock Road is shown running in a north-south direction through the southern portion of Lot 2, and then turning easterly and running parallel to State Highway Route 6. From there, it is shown as running through land owned by the Town of Barnstable, then through Lot 3 and the southern portion of one of Plaintiffs' Properties, before continuing into other land owned by the Town of Barnstable. The Kelley Plan shows one of Plaintiffs Properties lying between Lots 2 and 3.
13. A "Plan of Land in Barnstable, Barnstable, Mass. for Nickulas Homes, Inc.," dated July 2, 1985, and endorsed by the Barnstable Planning Board on October 21, 1985 as ANR, was recorded with the Registry on January 24, 1986 in Plan Book 409, Page 88 (the "Nickulas Plan"). The Nickulas Plan shows a division of land into 18± lots, with frontage on Flint Rock Road and a new western extension of Boulder Road.
14. The Nickulas Plan depicts Flint Rock Road originating at Braggs Lane on the north, and terminating at Boulder Road on the south. As depicted on the Nickulas Plan, a portion of the northern part of Flint Rock Road near Braggs Lane is labeled as "public, 40' wide," with another approximately 10 foot section of the northern part labeled "private." The southern portion of Flint Rock Road is labeled "private, 50' wide." Notwithstanding the "public" notation on the Nickulas Plan, there is no evidence that any portion of Flint Rock Road was ever accepted or laid out as a public way.
15. On the Nickulas Plan, the already existing portion of Boulder Road, running east of Flint Rock Road is labeled "40' private." The western extension of Boulder Road, labeled "50' private," terminates in a cul de sac within the Nickulas development.
The Active Defendants' Deeded Rights in the Subject Roads [Note 4]
16. Defendants Craig E. Mudie and Lynne H. Mudie acquired Lot 24 in the Cummaquid Hills subdivision by deed dated January 28, 2000, and recorded with the Registry on January 28, 2000, in Book 12803, Page 28.
17. The Mudies' deed provides that the property is conveyed,
Subject also to and together with the benefit of easements, rights, right of way, restrictions and reservations of record insofar as the same are in full force and applicable, and more particularly as described in a deed to Carolyn Benson dated March 29, 1983 and recorded with the Barnstable County Registry of Deeds in Book 3701, Page 95.
18. The deed to Carolyn Benson referenced in the Mudies' deed provides:
The property hereby conveyed is also subject to and entitled to the benefits of the following: the right to use in common with others entitled thereto, the ways shown on the aforesaid [Cummaquid Hills Plan] for all purposes for which such ways are commonly used in the Town of Barnstable . . . .
19. Defendants Francis G. Sayers and Karen E. Sayers acquired Lot 5 on the Nickulas Plan by deed dated December 15, 1989 and recorded with the Registry on February 7, 1990, in Book 7050, Page 101.
20. The Sayerses' deed provides that Lot 5 is conveyed,
Together with the right to use Flint Rock Road, as shown on said [Nickulas Plan], for all purposes for which public ways are now or may hereafter be used in the Town of Barnstable . . . .
21. Defendant Kathleen O'Brien acquired Lot 4 on the Nickulas Plan by deed dated May 5, 2002 and recorded with the Registry on May 5, 2003, in Book 16863, Page 333.
22. O'Brien's deed provides that Lot 4 is conveyed,
Together with the right to use Flint Rock Road, as shown on said [Nickulas Plan], for all purposes for which public ways are now or may hereafter be used in the County of Barnstable . . . .
23. There is no evidence that the grantor of Lot 4 or Lot 5 held any rights in Flint Rock Road which could be conveyed.
Plaintiffs' and their Predecessors' Use of the Subject Roads
24. Between 1972 through 1987, Edward Otis Handy (predecessor in title to Plaintiffs' Properties and father of the Plaintiffs) made a number visits, along with other family-member owners, to Plaintiffs' Properties, which he refers to as the "Family Woodlots." He and the other owners used Flint Rock Road and Boulder Road to access Plaintiffs' Properties on those visits and he was not questioned or challenged for doing so.
DISCUSSION
It is undisputed that the Plaintiffs jointly own two unimproved parcels of land located in Barnstable, Massachusetts, more particularly described in a deed recorded in the Registry, at Book 9922, Page 205, and confirmed in deeds recorded at Book 14519, Pages 200 and 202. [Note 5] Plaintiffs' deeds do not describe the Properties as being bounded by any streets or ways. Plaintiffs' deeds also do not confer or mention any rights or easements granted or reserved in any ways or roads. [Note 6] Lacking any frontage, and lacking any deeded rights of way to access their Properties, the Plaintiffs seek, through their Second Amended Complaint, to establish prescriptive rights of access over two private ways Flint Rock Road and Boulder Road (the "Subject Roads") or, alternatively, to establish that they may use the Subject Roads as access to their Properties by relying upon existing public rights of travel. [Note 7]
In their Motion for Summary Judgment, Plaintiffs argue that they are entitled to a judgment declaring that they have rights to use the Subject Roads "as necessary to access and use their properties on Boulder Road" because: (1) Flint Rock Road is an ancient way; (2)
Defendants' deeded rights in the two Roads do not exclude use by others, such as the Plaintiffs; and (3) the historical actions of the Town with respect to the Subject Roads have created a public right of travel or, alternatively, long time use by the general public has created a public easement by prescription. Neither the law nor the evidence in the summary judgment record supports any of these theories.
Status of Flint Rock Road as an "Ancient Way"
Plaintiffs first argue that Flint Rock Road is an "ancient" way, by virtue of it having been labeled as such on certain recorded plans. [Note 8] They assert that, by virtue of being an "ancient" way, Flint Rock Road is a public way. The Plaintiffs' assertions are legally and factually unfounded. There is nothing in the summary judgment record that evidences the status of Flint Rock Road as an "ancient way." Moreover, even if Flint Rock Road were an ancient way, such fact alone would not establish that the road is public. The age of a way, "by itself is a neutral factor, there being ancient private, as well as ancient public ways." Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 85 (1979).
Notably, Plaintiffs have not provided any maps or other records regarding the historical existence or use of Flint Rock Road. They instead rely chiefly upon recorded plans produced between 1967 and 1985 all but one of which were produced for private land owners for purposes of dividing their land into smaller lots. And a review of those plans indicate that, even if it could be shown to be "ancient," Flint Rock Road is most likely, a private way. Indeed, the oldest plan provided to the court the 1967 Cummaquid Hills Plan labels Flint Rock Road as an "undefined ancient private way" (emphasis added). The 1970 Braggs Lane Plan, showing the Town's layout of Braggs Lane as a public way, labels only a portion of Flint Rock Road as an "ancient way," with no indication of whether that portion is private or public. The two 1973 ANR Plans (the Cobb Plan and the Kelley Plan), do not identify Flint Rock Road as an ancient way. Instead, the Road is identified on those plans as a "traveled way." The 1985 Nickulas Plan, labels all but forty feet of Flint Rock Road as a private way, including the section where it terminates at Boulder Road. [Note 9] There is nothing in the summary judgment record to indicate a basis for the Nicklaus surveyor's identification of the remaining forty-foot section as "public."
Overall, these plans, taken individually or together, do not establish that Flint Rock Road is a public, ancient way, and no evidence has been offered to show a history of actual public use of Flint Rock Road. See Fenn, 7 Mass. App. Ct. at 87 (burden of proof not met where evidence and maps were "equally consistent" with way being an ancient private way). Accordingly, Plaintiffs are not entitled to summary judgment declaring that Flint Rock Road is an ancient way which Plaintiffs have a right to use as members of the public.
Non-exclusivity of Defendants' Deeded Easement Rights
Plaintiffs fare no better with their argument that the Defendants' deeded rights in the Subject Roads are not exclusive, and that Plaintiffs are among the "others" entitled to use the Subject Roads. According to the several deeds included in the summary judgment record, Defendants Craig E. Mudie and Lynne H. Mudie are the record owners of lots which were conveyed together with the right to use the ways in the Cummaquid Hills Subdivision; while Francis G. Sayers, Karen E. Sayers, and Kathleen O'Brien own lots in the Nickulas development which were conveyed with the right to use Flint Rock Road. [Note 10] Although Plaintiffs admit that they themselves hold no deeded rights to use either of the Subject Roads, they creatively contend, without any legal authority whatsoever, that by virtue of the fact that these Defendants' various deeds do not expressly exclude others from using the Subject Roads, the Defendants do not have the right to prevent the Plaintiffs from also using the Roads.
Contrary to Plaintiffs' argument, rights granted to some of the Defendants to use Flint Rock Road or Boulder Road in common with others, or for "all purposes for which public ways are used" in the Town of Barnstable, do not confer rights upon Plaintiffs to use those Roads.
Absent proof that Plaintiffs have otherwise acquired rights in the Subject Roads, the non-exclusivity of the Defendants' rights is of no consequence for Plaintiffs. [Note 11] Thus, Plaintiffs are not entitled to summary judgment in their favor under their "non-exclusivity" theory.
Public Right of Travel
Finally, Plaintiffs' argument that they may rely upon existing public rights in order to access their Properties via the Subject Roads is equally unsupported by the facts and the law. Plaintiffs have confirmed to the court that Count II of their Second Amended Complaint does not include a claim that the Subject Roads have become public ways by prescription but, instead, seeks to establish that "public rights of travel" in the two Roads have otherwise developed over the years. In their Summary Judgment Motion, Plaintiffs contend that public rights of travel resulted from the Town of Barnstable's actions in maintaining and improving the Subject Roads over the years or, alternatively, that a "public prescriptive easement" has been created through general public use of the Roads.
In an "Agreed Statement of Facts" filed in open court during the summary judgment hearing, Plaintiffs and the active Defendants have agreed to several statements describing municipal improvements to, and maintenance of, the two Subject Roads, including such actions as erecting street signs, grading, snow plowing, and repair of pot holes from the 1970s to present day. The statements (although characterized as "agreed facts") are not competent, admissible evidence as they are unsupported by any depositions, pleadings, answers to interrogatories, admissions on file, or affidavits made on personal knowledge. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 554 (1976) (moving party has burden to establish "by credible evidence from his affidavits and other supporting materials that there is no genuine issue of material fact and that he is entitled, as [a] matter of law, to a judgment."). For example, the documents referenced to support the statements consist of website printouts labeled "Town of Barnstable, Citizen Request Management," without any source information given. These documents are not certified by a Clerk of the Town of Barnstable, and there is no affidavit of a Town official or Keeper of the Records to verify their authenticity. [Note 12] Thus, even though the parties themselves may not dispute that the Town has undertaken the actions described in those printouts, a proper and complete foundation has not been laid for their submission. I accordingly do not treat the parties' agreements as establishing substantive evidence that these alleged Town actions occurred as a matter of undisputed fact.
But more importantly, Plaintiffs have provided no legal support for the theory that a municipality's maintenance activities on private roadways creates travel rights in the general public. Indeed, municipalities are statutorily authorized to make repairs to, and perform snow plowing on, certain private ways that are "opened and dedicated to the public use." See G.L. c. 84, § 23. Here the summary judgment record does not establish the conditions and authority under which the Town of Barnstable performed the maintenance asserted. If, in fact, the Subject Roads are open to public use, Plaintiffs have failed to supply evidence of such. [Note 13] In addition, Plaintiffs have not offered any legal support for their argument that municipal maintenance alone results in the ways being opened to public use. Therefore, Plaintiffs are not entitled to summary judgment on their theory that public maintenance activities (even if established by competent evidence) have created public rights to travel on the Subject Roads.
Plaintiffs have also failed to establish their entitlement to judgment as a matter of law under their alternative theory that the general travelling public has acquired prescriptive rights to use the Subject Roads. In order to establish a prescriptive public easement in the Subject Roads, the claimed rights must be demonstrated by "clear proof." See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008). To the extent, if any, that Plaintiffs have standing to claim prescriptive rights on behalf of the general public, they have the burden to demonstrate the general public's continuous and uninterrupted, open and notorious, and adverse use of the Subject Roads for a period of not less than twenty years. See e.g., White v. Hartigan, 464 Mass. 400 , 413 (2013); G.L. c. 187, § 2. "The burden of proving every element of an easement by prescription rests entirely with the claimant. If any element remains unproven or left in doubt, the claimant cannot prevail." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009).
Plaintiffs' argument that a prescriptive public easement exists over the Subject Roads relies almost entirely upon the admissible portions of the Handy Affidavit. Therein, Mr. Handy describes in only general terms, the use of the Subject Roads made by himself and his family to access Plaintiffs' Properties. His statements as to "numerous visits" to the Family Woodlots using Flint Rock Road and Boulder Road for access, are too general to establish a pattern of regular or consistent use of the Subject Roads throughout the statutory twenty-year period. See Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985). But equally problematic for Plaintiffs is that the Handy Affidavit evidences only limited personal use by Otis Handy and his family members to access the Plaintiffs' Properties, which falls far short of proving that the traveling public used the Subject Roads for the statutory prescriptive period.
Nor, contrary to Plaintiffs' argument, does Agreed Fact No. 15 establish that members of the general public have used the two Subject Roads under a claim of right. The agreement of the Plaintiffs and the active Defendants that "[t]he Roads have been used for all purposes for which public roads are generally used in the Town since at least the late 1970s," says nothing about who actually used the Subject Roads in such a fashion, or whether such use was adverse. Plainly, the active Defendants themselves have used the Subject Roads for all purposes for which public roads are generally used in the Town, in reliance on rights described in their deeds. Agreed Fact No. 15 is thus not evidence of adverse use of the Subject Roads by the general public. See Bullukian v. Franklin, 248 Mass. 151 , 155 (1924) ("To establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way." [Emphasis added]).
Finally, the alleged publication by the Town of a "Cape Cod Pathway Brochure" directing pedestrians to use the Subject Roads to access a "trail" south of the intersection of Flint Rock Road and Boulder Road, is not evidence of actual public use of the Subject Roads. Setting aside the inadmissibility of this uncertified and foundationless document, it falls far short of demonstrating actual and continued public use for the prescriptive period. The mere existence of a trail map with directions (even if it could be shown that it is an official publication of the Town of Barnstable) does not establish that any members of the general public have actually traveled on the Subject Roads to access the trail. Nor does it establish the frequency or regularity of use of the Subject Roads by the general public for all purposes for which public ways are used in the Town of Barnstable. Cf. Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596-97 (1994) ("sporadic use . . . by the public for recreational purposes" is insufficient to establish prescriptive public rights in road).
CONCLUSION
Because Plaintiffs have failed to establish that they are entitled to judgment in their favor as a matter of law under any of the theories advanced, their Motion for Summary Judgment is DENIED.
SO ORDERED.
EDWARD O. HANDY, III, SUSAN S. H. LITTLEFIELD, JOHN E. HANDY, and SETH H. HANDY v. ESTATE OF KRYSTYNA DUBOIS, through its Personal Representatives, STEFAN AND ANNA MISKA; CRAIG AND LYNNE MUDIE; ANDREW VOIKOS; RALPH AND VIRGINIA CAHOON; AGNES M. SORENSON TRUST, through its Trustee, RICHARD SORENSON, JR.; JOHN AND DOROTHY O'CONNELL; PETER AND JESSICA BURKE; GOONEY BIRD REVOCABLE TRUST, through ADAM G. LAMBERT and SUZANNE LAMBERT, Co-Trustees; FRANCIS AND KAREN SAYERS; KATHLEEN O'BRIEN; ROBERT AND SUE BRITNELL; JEFFERY AND JOANNE HASTINGS; JOHN AND SALLY ORCUTT; DAVID AND ANGELA ABATE; RONALD AND SIMONE PERRIER; SULLIVAN REAL ESTATE TRUST, through its Trustee, DONALD MCCLURE.