MISC 16-000458

December 4, 2018

Barnstable, ss.




Plaintiffs David and Ana Ferris own a seasonal home on the eastern shoreline of Seconsett Point in Mashpee — a narrow, secluded peninsula on the southern coast of Cape Cod between Little River and Waquoit Bay. The sole roadway access to their house and to the handful of other homes on the peninsula is over Seconsett Point Road, a graded and gravel-surfaced private way that runs through the center of the peninsula.

The Ferrises' neighbor on the western side of the peninsula, directly across Seconsett Point Road from their house, is defendant David Bernstein. Mr. Bernstein is also a seasonal resident, and owns the fee in the roadway in the section between his house and the Ferrises'. He does not dispute the Ferrises' right to use part of the presently-existing roadway for access to their house. What is disputed is the location and width of the part of the roadway in this section that the Ferrises have a right to use (i.e., the part over which they have an easement of some type), and whether the Ferrises can change its current gravel surface to asphalt paving.

The Ferrises want to pave it because the gravel has had potholes in the past that have damaged their cars; [Note 1] because of noise and dust from cars driving by on the gravel; because a paved surface would be more long-lasting and easier to plow when it snows; because paving would make it easier for a disabled relative who uses a wheelchair to get to their house from Mr. Ferris' father's house next door when the relative stays there on occasional visits; and, even if none of these reasons existed, because they believe paving is a "reasonable improvement" to the roadway and thus something they have the right to insist upon regardless of objections. [Note 2]

Mr. Bernstein, who, as noted above, is the fee owner of the roadway in this section, does not want it paved. He is fine with the Ferrises using the roadway for access to their house, and does not dispute that they have an easement of some type over part of its width for such use. [Note 3] But he contends that they have no right to pave that easement if he objects, and he most certainly does. Paving, he contends, would make the roadway's existing drainage problems worse; [Note 4] would lead non-residents to believe that the road was open to the public for access to the water, thus increasing traffic and substantially lessening the neighborhood's privacy; would result in cars driving faster on the road making it significantly less safe; would change the decades-long "feel" of the neighborhood from one of privacy and seclusion to that of a suburban subdivision; and is unnecessary because the graded and graveled surface is more than adequate for reasonable access, with repairs easily made. For these reasons, he believes that paving is unreasonable and cannot be done over his objection. There is also the issue of what could be paved if paving was allowed. As noted above, this section of the roadway is owned by Mr. Bernstein, and the proper width and location of the easement is very much in dispute.

The case was tried before me, jury-waived. I also took a view. [Note 5] Based on the testimony and exhibits admitted at trial, my observations at the view, and my assessment of the weight, credibility, and appropriate inferences to be drawn from that evidence, I find and rule as follows. The Ferrises have a prescriptive easement over Mr. Bernstein's land for access to their home. That easement, over what is now this section of Seconsett Point Road, is along the far eastern edge of Mr. Bernstein's land and is ten feet wide. The Ferrises do not have the right to use any more of Mr. Bernstein's land than that ten-foot width in that location. [Note 6] They have the right to maintain and improve the grading and graveling of the roadway within that ten-foot width. But they do not have the right to pave it unless and until Mr. Bernstein agrees that they may do so.

Facts and Analysis

These are the facts as I find them after trial, and the legal conclusions I draw from those facts.

Seconsett Point Road is a private way, serving a relatively small number of houses, that runs the length of Seconsett Point, a short, narrow peninsula between Little River and Waquoit Bay in Mashpee. It is the sole roadway access for those houses. There is a short paved section at its top where it intersects with the public roads on the mainland, but it soon turns to gravel and is presently graded and graveled along its entire remaining length, including the section at issue in this case.

That section is the area between the Ferris and Bernstein houses, the fee in which is owned by Mr. Bernstein. Mr. Bernstein bought his property (#33) in 1983. The Ferrises bought theirs (#36), directly across the road from Mr. Bernstein's, in 2002. Their houses, like most along the road, are primarily summer residences. [Note 7]

Seconsett Point Road began as a sand and grass track, one car wide, connecting the homes on the Seconsett Point peninsula to the Mashpee public roads. When cars using that track encountered cars coming from the opposite direction, they would simply pull over to the side to let the opposing car pass and then resume their journey.

Over time the roadway became wider, although the evidence indicates, and I so find, that the actual traveled surface was never more than ten feet in width. This is most clearly evidenced by the Land Court plans that were submitted, reviewed, and approved in connection with the registration of several parcels on the peninsula. They include Land Court Plan 13227A (Nov. 1928) (a parcel south of the Ferris and Bernstein properties, which shows the "right of way" in that section as 10'wide when scaled); Land Court Plan 13227B (Feb. 17, 1978) (the same section as Plan 13227A, but now showing the actual traveled roadway as between 8 ½' and 9' wide); and Land Court Plan 23341A (Nov. 30, 1951) (the parcel immediately abutting the Ferris and Bernstein on the north, which shows the actual traveled surface in that section scaling at 10' wide and the Ferris/Bernstein section itself — not part of the registration, and shown solely as a neighboring property on the 23341A Decree Plan — also scaling at 10'). This 10' width is consistent with the widths shown on the recorded plans on file at the Registry for other sections of the roadway. [Note 8] I find that the additional width used by cars pulling over to allow oncoming cars to pass was 3' at these pass-by points — the width of two cars, plus space between them adequate to pass while one is stopped, which I find to have been the customary practice.

The roadway was not created by express or implied grant from a single common owner of all the properties along it. So far as the record shows, the land on the peninsula was always in divided ownership at all material times. Rather, the roadway appears to have had its origins in prescriptive use.

This is corroborated by the earliest deed in the record concerning the parties' properties (the Howard Swift to Ella Leighton deed from 1924), [Note 9] which described it as "the road now in use which extends across this land," and conveyed the land "subject to the right of way of the owners of lower Seconsett to pass to and from their properties" over that roadway. [Note 10]

So far as the record shows, only one section of Seconsett Point Road has an express easement. This is the section on registered land parcel 23341A (the parcel immediately abutting the Ferris and Bernstein properties on the north), which has a 20'-wide easement granted by stipulation of the registrant in that case for the express benefit of the owners of that parcel and the landowners south of it. See Land Court Plan 23341A (Trial Ex. 5), showing the 20' easement on that parcel [Note 11] and the 10'-wide right of way on the parcels north and south of it. The parcel abutting it on the south (labelled "Ella D. Leighton" on Plan 23341A — the former Swift and Hatch properties having now been acquired by the Leightons and combined into one, see n. 9), shown with only a 10'-wide right of way across it, was later divided into two parcels which are now the Bernstein and Ferris properties. See n. 9. As discussed above, and as reflected on Plan 23341A, the prescriptive right of way in the Bernstein/Ferris section thus was, and is, 10' wide, with an additional 3'width available to pull over as needed when encountering oncoming cars.

The Leightons' deed to the Ferrises did not explicitly convey the ten-foot right of way across the Bernstein land (the section of Seconsett Point Road at issue in this case), but that right of way was conveyed as a matter of law either pursuant to G.L. c. 183, §15 [Note 12] or as a consequence of describing that parcel with reference to a way in which the Leightons had reserved their rights. [Note 13] As previously noted, the fee in the right of way is part of the Bernstein parcel and thus owned by Mr. Bernstein, subject to whatever prescriptive rights exist in others to use it. As also previously noted, Mr. Bernstein does not dispute that the Ferrises have such a right. Because it is a prescriptive right, it only extends to the 10' width with an additional 3' when necessary to allow an oncoming vehicle to pass.. See Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962) ("The extent of an easement arising by prescription, unlike an easement by grant, is fixed by the use through which it was created. Prescriptive rights are measured by the extent of the actual adverse use of the servient property, not by the extent of the threats of the dominant owner.") (internal quotations and citations omitted); Stucchi v. Colonna, 9 Mass. App. Ct. 851 , 851 (1980) (same; affirming trial court finding that "easement by prescription over the defendants' land was only about ten feet in width and did not extend to commercial and emergency vehicles"); Stone v. Perkins, 59 Mass. App. Ct. 265 , 267 (2003) (prescriptive easement "confined substantially to the same route and to substantially the same purpose for which the way was designed originally, unless the way is for all purposes") (internal citations and quotations omitted). The prescriptive rights to use the section over the Bernstein property benefit only the Ferris property and the ten homes past that point, since they are the ones whose use gave rise to the prescription. [Note 14]

The prescriptive easement as shown on the various plans referenced above does not hug Mr. Bernstein's property boundary for its entire length in the section at issue. Instead, it weaves somewhat, and not always consistently plan to plan. M.P.M Builders LLC v. Dwyer, however, gives the fee holder (Mr. Bernstein) the right to relocate the easement, at his own expense, so long as the new location "does not significantly lessen the utility of the easement, increase the burdens on [the easement holder's] use and enjoyment of the easement, or frustrate the purpose for which the easement was created." M.P.M Builders LLC v. Dwyer, 442 Mass. 87 , 94 (2004). Mr. Bernstein has physically already done such a relocation by putting down sod in areas damaged by construction trucks working on the Ferris renovations – back, he says, to where the roadway was before, [Note 15] but different from at least some of the locations shown on the above-referenced plans — which I find meets all the M.P.M. criteria. The section between the Ferrises and Mr. Bernstein is straight and level. There are no sight- line issues. Properly graded and graveled, putting the roadway on the 10' width immediately abutting the Ferrises' property line gives precisely the same service as the 10' where Mr. Bernstein has presently put the roadway, and precisely the same service as the 10' location shown on any of the plans. To the extent the Ferrises' hedge goes over their property line onto Mr. Bernstein's property, thus blocking the use of the encroached-upon area of that 10' width, the hedge has no right to be there (it is a trespass), and Mr. Bernstein has the right to insist that the Ferrises remove that encroaching part. Moreover, Mr. Bernstein has left an additional 3' open and covered in either gravel or grass to accommodate cars pulled over when encountering oncoming cars.

These factual findings and associated legal analysis dispose of two of the three issues presented in this case: the width of the Ferrises' easement over Mr. Bernstein's property (10', with the ability to pull to the side an additional 3' if there are oncoming vehicles that require it), and the location of that easement (directly on the boundary line between the properties, i.e. a 10'-wide strip along the far eastern side of Mr. Bernstein's land with the ability to use an additional 3' when needed for pull-overs). The remaining issue is whether the Ferrises can have the 10' paved. [Note 16]

As noted above, the holder of an easement over an existing road is entitled to make reasonable repairs and improvements to the roadway so long as there is "due regard to the rights and interests of others." Guillet v. Livernois, 297 Mass. 337 , 340 (1937) (internal quotations and citations omitted). "Whether improvements made are reasonable in view of the equal rights of others, is largely a question of fact." Id. at 341. The relevant facts are these.

This is a low-volume roadway, particularly in the section at issue which only serves the Ferris and Bernstein houses and the ten houses beyond them. The only vehicles that regularly use it are passenger cars and delivery vans, none of which are large, heavy, or all that frequent. Dump trucks and cranes have used it in the past when renovating the homes along the roadway (the Ferrises was one of the homes so renovated), but all such renovations are currently complete and there was no evidence that any future ones are contemplated. Even if there were, those renovations are few and far between and, as the evidence and view showed, any effect on the current graded and graveled surface of the road can be remedied quickly, easily and completely.

The Ferrises complain of dust from cars travelling over the gravel surface. There is some such dust, to be sure, and I witnessed some during the view (a dry day). But that dust is relatively minimal and "settles" quickly after the cars go by.

The Ferrises complain of potholes, but the evidence showed that they were mainly the result of heavy construction vehicles while they were using the road during house renovation work. Indeed, the construction vehicles working on the Ferrises house were the source of many of them. All have currently been remedied, and the ones that are likely to recur — those that result from normal wear and tear — are nothing of a depth, size or extent that cannot quickly be remedied and cannot substantially be "headed off" by using quality grading and quality stone, as seems to be the case at the present time. Ironically, potholes can have a beneficial effect so long as they are not too numerous or deep. They slow vehicles down, making the roadway safer. The Ferrises counter that traffic on paved surfaces can be slowed down by installing speedbumps. But speedbumps have their own, significant problems. They are likely to be damaged by winter plowing, themselves must be maintained, and, most importantly, must continuously have their yellow paint and reflectors replaced and refreshed to avoid damaging the cars that go over them. The Ferrises claim that at least one of their vehicles has been damaged by a pothole — a low-slung Ferrari — but this was likely a result of the vehicle's speed, and is not a problem with their other vehicles — large, higher-clearance SUV's. Paving will make it easier for the Ferrises wheelchair-bound relative to get back and forth between their homes, but this is a very occasional event and can still be done with gravel. If it is truly a problem, the Ferrises can easily solve it themselves by putting a connecting, paved path entirely on their own property between their houses, #36 and #38, which are side by side. I doubt the sincerity of this claim, though, since the parents' driveway, over which the wheelchair travels, is itself currently graveled.

The Ferrises claim that paving the roadway will result in the Town plowing it in the wintertime (at present, the residents pay for plowing themselves). But the Town has no obligation to plow it — it is a private road — and there was no testimony from the Town committing that it would in fact do so, making this all speculation. Also, as noted above, plowing damages speedbumps, and is not totally damage-free to paving.

The "negatives" that would result from paving cannot genuinely be disputed. Paving would result in cars going faster, and it would change the character of the neighborhood. The neighborhood would no longer be what it is today — a quiet, private hide-away — and instead would become like just another suburban subdivision, exactly what its residents wish to escape when they come to their homes here. Most of all, paving will increase the current drainage problems from the road. Paving is impermeable. All of the water falling on it will run off. The Ferrises counter-argument that a ditch and catch basins along the side of the paved roadway will address this is disingenuous. The ditch and catch basins would need to be built outside the easement area, on Mr. Bernstein's property, taking up even more of it. He has no obligation to give up this extra property to enable something — paving — that he does not want, and is adamantly opposed to.

In short, while paving might be a "reasonable improvement" in some situations, it is not so here, and the current graded and graveled surface, properly maintained, is more than adequate access and thus fulfills the purpose of the easement. As easement holders, the Ferrises may maintain the grade and gravel, re-grading and re-graveling at any reasonable time they deem necessary. They are thus not materially prejudiced if the roadway remains in its graded and graveled state.


For the foregoing reasons, I find and rule that the Ferrises have a prescriptive easement over Mr. Bernstein's land for access to their home. That easement, over what is now this section of Seconsett Point Road, is along the far eastern edge of Mr. Bernstein's land and is ten feet wide, with the availability of an additional three feet when needed to pull over when encountering oncoming cars. The Ferrises do not have the right to use any more of Mr. Bernstein's land than that ten-foot width in that location and, if they are on the easement when a vehicle is coming from the opposite direction andneed to pull over to allow it to pass (a rare event since the Bernstein and Ferris lots are narrow, and they will not have pulled out of their parking area until all cars then on the road in that area already have passed), they may use the additional three feet to do so. They have the right to maintain and improve the grading and graveling of the roadway within that ten-foot width. But they do not have the right to pave it unless and until Mr. Bernstein agrees that they may do so. Mr. Bernstein must keep the additional three feet open and unobstructed.

Judgment shall enter accordingly.


exhbit 1

Exhibit 1


[Note 1] The roadway has since been re-graded and re-graveled, and the Ferrises' right to repair potholes whenever they wish, so long as the repair is with gravel, is not disputed.

[Note 2] See Guillet v. Livernois, 297 Mass. 337 , 340-341 (1937) ("The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use." However, that right must be exercised while "having due regard to the rights and interests of others," and "[w]hether improvements made are reasonable in view of the equal rights of others is largely a question of fact.") (internal quotations and citations omitted).

[Note 3] As discussed more fully below, the evidence shows that the Ferrises' easement is an easement by prescription.

[Note 4] The present gravel surface allows much of the rain and snow that falls upon it to filter into the ground through the stones. Not all of the water does so however, and much of the water that doesn't directly filter into the ground runs off and pools onto Mr. Bernstein's land. This run-off will be worse if the road is paved because paved surfaces are impermeable.

[Note 5] "[I]nformation properly acquired upon a view may properly be treated as evidence in the case." Martha's Vineyard Land Bank Comm'n v. Taylor, Mass. Appeals Ct. Case No. 17-P-1277, Mem. & Order Pursuant to Rule 1:28, 2018 WL 3077223 at *2. n. 11 (Jun. 22, 2018) (internal citations and quotations omitted). See also Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626 , 629 n. 5 (2018).

[Note 6] They may, of course, widen it onto their own property if they so wish after obtaining all necessary conservation commission and other applicable permits.

[Note 7] The Ferrises also own the house at #23 which they rent to tenants, and an additional lot across the street from that property. Mr. Ferris' parents have owned the house at #38 since 1997, and they too are primarily summer residents.

[Note 8] See Trial Ex. 1 (Oct. 1951) (scaled measurement of roadway width showing actual traveled way as no more than 10' wide); Trial Ex. 2 (Sept. 10, 1956) (same); Trial Ex. 3 (Aug. 25, 1968 (same); Trial Ex. 4 (Feb. 26, 1969) (same); and Trial Ex. 5 (Dec. 18, 1951) (same).

[Note 9] Trial Ex. 6. The western part of the property conveyed in this deed (bounded on the west by Waquoit Bay) is now the Bernstein property, and the eastern part (bounded on the east by "the marsh of [Wallace] Hatch," which separated it from Little River) is now owned by the Ferrises. The Leightons subsequently acquired that section of the Hatch land, thus extending the combined parcel all the way to Little River, and the combined parcel was later divided into the presently- existing Bernstein and Ferris properties with their current boundaries.

[Note 10] The express easements created by that deed — (a) the "right of way ten feet wide across the Easterly end of the premises hereby conveyed next to the marsh of Wallace Hatch," (b) the "right of way ten feet in width across the land of [George Medbery] next to the marsh of said Hatch," and (c) its continuance "across the strip of upland and marsh owned by me [Swift] which is twenty feet wide and extends from Little River in a Westerly direction across the marsh and also twenty feet beyond the marsh onto the upland," described in the deed as together "form[ing] a complete passage from the land herein conveyed to Little River" — are elsewhere on the property and were subsequently released or extinguished by merger after the Leightons acquired the Hatch marshland abutting the parcel and thus extended the combined property all the way to Little River. See n. 9, supra.

[Note 11] The stipulation in that Registration case (Case No. 23341A) is Trial Ex. 65. It does not purport to put a similarly-wide easement on any other parcel nor, without the agreement of the owners of those other parcels, could it do so. The then-owner of the now Ferris and Bernstein parcels (Ella Leighton, see n. 9) was not a signatory to the stipulation and thus not bound by it. The right of way over the now Ferris/Bernstein section thus was, and remained, only 10' wide.

[Note 12] "In a conveyance of real estate all rights, easement, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically." G.L. c. 183, §15.

[Note 13] The plan referenced in the Leighton to Ferris deed (Trial Ex. 1) shows an existing ten-foot wide roadway and markers on either side of it twenty-feet apart, one set on the Ferrises' boundary line and the other twenty feet into the Bernstein property. It is unclear why there are markers twenty-feet into the Bernstein property given that the roadway is only 10' wide and the Bernstein deed clearly gives him fee title over the entirety of the twenty feet. I find it most likely that that was to provide reference points in the event that the way was ever widened to match the express easement on the registered land parcel immediately to its north. As the title chains show, however, such a widening on this section never occurred. The way remains the same ten-foot width as described in the Swift to Leighton deed from 1924. See Trial Ex. 8, Davis to Bernstein, explicitly referencing the 1924 deed and the "right of way reserved and referred to in said deed…to the extent now in force and effect."

[Note 14] See the Swift to Leighton deed (Dec. 13, 1924) (Trial Ex. 6), which transfers the property to Leighton "subject to the right of way of the owners of lower Seconsett to pass to and from their property over the road now in use which extends across this land," i.e. Seconsett Point Road (emphasis added).

[Note 15] The parties dispute where that "before" location was. The Ferrises claim that it was further into Mr. Bernstein's property, i.e. further away from their property line. Mr. Bernstein claims that his relocation was simply replanting the area torn up by the Ferrisses' contractors' trucks while they were renovating the Ferris house. Having heard the evidence from both sides and observed the area during my view, I find Mr. Bernstein's account the more probable one. Regardless, it is still somewhat different from what at least some of the past plans show. The point is a moot one, however, since I find that wherever it was before, at whatever time, Mr. Bernstein has the M.P.M. right to locate it where he has located it and, indeed, if he so wishes, to relocate it as far over as the Ferrises' property line so that it is 10' wide measured from that line, with an additional 3' available for pull-overs when needed.

[Note 16] The 3' additional pull-over area can be graveled or grassed as Mr. Bernstein wishes.