Home ROBERT M. DUGAN and KATHLEEN A. DUGAN v. KATHY L. BOUTIETTE, Individually and in her capacity as Trustee of the JLS Realty Trust, and KARIN M. HOLLAND, as Trustee of the JLS Realty Trust.

MISC 17-000333

June 26, 2018

Plymouth, ss.



This neighbor-versus-neighbor dispute raises an issue that has kicked around Massachusetts law for well over 200 years: do the usual rules for how a party may obtain by prescription rights to use a private way change when others have deeded rights to use that way? The defendants in this case argue that they do. This Court holds that sometimes the rules do change, but more often they don't, and that's the case here.

Plaintiffs Robert and Kathleen Dugan bought a house at 13 Holmes Avenue in Carver, Massachusetts in December 1993. Holmes Avenue lies within a neighborhood that's perched on the western shore of Coopers Pond. The Avenue runs roughly north/south a block from the pond.

The closest major thoroughfare is Plymouth Street. As of 1993, and to this day, one could reach 13 Holmes from Plymouth Street by (a) proceeding south from Plymouth Street along a public way, Pine City Street, until it reaches Central Avenue; then (b) heading east along Central Avenue to its intersection with Holmes Avenue (which, in 1993, was a dirt road); then (c) turning north on Holmes Avenue. 13 Holmes is on the right, one block up.

But as of 1993, there was a second and faster way to get to 13 Holmes: (a) head south from Plymouth Street along Pine City Street; but then (b) take a sharp left turn onto an unposted, tree-lined dirt road just before Central Avenue; then (c) follow the dirt road for approximately 100 yards (the "Disputed Way"), and presto, you're home.

The Disputed Way, now paved (as is Holmes Avenue), lies on a parcel that includes a residence at 15 Holmes Avenue. 15 Holmes abuts the north side of 13 Holmes. The Dugans' deed to 13 Holmes states that it was "conveyed together with a right of way to the Public Highway." The Dugans assumed when they bought 13 Holmes that the "right of way to the Public Highway" was the Disputed Way, and they used the Disputed Way accordingly. But in 2017, in the midst of a fight with the owners of 15 Holmes, the Dugans learned from their attorney that they had misinterpreted their deed: the "right of way to the Public Highway" actually was Holmes Avenue itself, and only south of the 15 Holmes parcel. Undeterred, the Dugans believed that their use of the Disputed Way had ripened into an easement by prescription. They thus sued the owners of 15 Holmes (Karin M. Holland and Kathy L. Boutiette, as trustees of the JLS Realty Trust) for a declaration that the Dugans have an easement in the Disputed Way. The Trustees deny the Dugans' claims.

The parties appeared for trial on March 26 and 27, 2018. The Court also took a view of the Coopers Pond neighborhood on the first day of trial. Based on the parties' agreed facts, the evidence presented at trial, the Court's view, and the arguments of counsel, the Court finds the following facts:

1. The Dugans purchased 13 Holmes from Douglas A. Pilkuhn in December 1993. At that time, Arthur E. and Evelyn L. Rollston owned 15 Holmes. They bought 15 Holmes in September 1991. Before then, William and Phyllis Harriman owned the property.

2. At all times relevant to this case, a wooden post fence on 13 Holmes has paralleled most of the boundary between 13 Holmes and 15 Holmes. The fence begins near the northwest corner of 13 Holmes and runs east. The fence also heads south from the northwest corner of 13 Holmes, parallel to Holmes Avenue, until it reaches the driveway of 13 Holmes (which extends east from Holmes Avenue into 13 Holmes). The fence appears in photographs dating back to the 1990s, when Holmes Avenue adjacent to 13 Holmes was unpaved (as was the Disputed Way). The evidence at trial suggests that there never have been along Holmes Avenue on the side of the street directly opposite from 13 Holmes.

3. Immediately north of the fence at 13 Holmes, on the 15 Holmes side of the boundary, is a paved area, two car-widths wide. On the north side of the pavement is a residence. One of the residence's doors faces south, toward the paved area and 13 Holmes. The residence also has windows that face south and west.

4. Between 1990 and 1993, Mr. Pilkuhn rented 13 Holmes to Robert Ferreira. During his tenancy, Ferreira and his invitees regularly used the Disputed Way to reach 13 Holmes. Ferreira used the Disputed Way daily. It appeared to Ferreira to be maintained by the Town of Carver. The Way had no signs on it.

5. Between 1990 and 1993, and to this day, the Disputed Way formed part of a convenient loop to and from 13 Holmes via Pine City Street: vehicles could approach 13 Holmes from the west and north via the Disputed Way, then continue south along Holmes Avenue to return to Pine City Street. Vehicles also took the reverse of that path when convenient.

6. Mr. Ferreira never asked the Harrimans or the Rollstons for permission to use the Disputed Way. Ferreira does not know, however, whether Mr. Pilkuhn sought such permission.

7. After purchasing 13 Holmes, the Dugans used the Disputed Way much as Mr. Ferreira had. Their children, Robert Jr. and Heather, used the Disputed Way as their parents did once Robert Jr. and Heather began driving. The Dugans treated the Disputed Way as affording as much access to 13 Holmes as Holmes Avenue itself. They told their guests and invitees to use the Disputed Way to reach 13 Holmes. They mistakenly believed that their deed to 13 Holmes described the Disputed Way as their access to the Public Highway. They learned from their attorney in 2017 that their reading of their deed was incorrect. The Dugans nevertheless used the Disputed Way daily for access and egress to 13 Holmes until late May 2017, when Mr. Dugan was served with a notice of a hearing on a criminal complaint for trespass filed by Trustee Boutiette.

8. From 15 Holmes, one is able to see all vehicles travelling to and from 13 Holmes along the Disputed Way. The driveway of 13 Holmes also is visible from 15 Holmes, as are any cars parked in that driveway. Prior to 2014, Mr. Dugan worked for a heating oil company. He drove a distinctive service van. Dugan frequently parked the van at 13 Holmes, and often drove the van along the Disputed Way to reach or leave from 13 Holmes. Ms. Dugan typically drove minivans during the same period, and used the Disputed Way daily. Persons inside 15 Holmes would have been able to notice the service van and Ms. Dugan's minivans. Persons inside 15 Holmes likewise would have been able to see the vehicles of those providing services to 13 Holmes, and be able to determine that they used the Disputed Way either to reach or leave from 13 Holmes. Between December 1993 and late May 2017, those providing services to 13 Holmes that travelled the Disputed Way included heating-oil and propane-service companies, and United Parcel Service.

9. While the Dugans don't have deeded rights to use the Disputed Way, five other neighbors besides the Trustees do, for ingress and egress. Those neighbors are the owners of Lots 73, 75, 78, 79, and 80 on Old Assessors Map 17 (Trial Exhibit 5). This case will call those owners the "Easement Holders." Lot 73 is at the northeast corner of the intersection of Pine City Street and the Disputed Way. Lot 75 abuts Lot 73 to the east, and abuts the north side of the Disputed Way. Lot 78 abuts the north side of 15 Holmes, east of an "extension" of Holmes Avenue that's sometimes called North Holmes Avenue. Lot 79 abuts the north side of Lot 78, and is also east of North Holmes Avenue. Lot 80 abuts the north side of Lot 75 and the west sides of Lots 78 and 79, and lies on the west side of North Holmes Avenue. The instruments that grant the Easement Holders the right to use the Disputed Way predate by decades the Dugans' purchase of 13 Holmes and their use of the Disputed Way.

10. There's a second easement, besides the Disputed Way, that encumbers 15 Holmes for the benefit of some nearby property owners (not including the Dugans). It's a 20 foot-wide path that begins at the southern end of North Holmes Avenue and heads east to Coopers Pond. The parties call that easement the "Pond Path." It runs along the northern side of 13 Holmes.

11. Many persons besides the Dugans, the Easement Holders and the Trustees have used the Disputed Way. No party provided evidence of the relative frequency of the use of the Disputed Way among the Trustees, the Dugans, the Easement Holders and the general public. No party provided evidence that anyone besides the Easement Holders and the Trustees has a deeded right to use the Disputed Way. The Trustees offered evidence that they gave permission to the Dugans to use the Disputed Way (the Court will discuss that evidence in greater detail later), but the Trustees did not offer evidence that they or their predecessors in interest gave permission to anyone besides the Easement Holders and (allegedly) the Dugans to use the Disputed Way.

12. At the time of trial, the Disputed Way was paved. It had been a dirt road through at least 1999. Between 1993 and the paving of the Disputed Way, the Town of Carver packed and pressed the dirt road from time to time, and trimmed bushes along it. At the time of trial, chain-link fences bordered parts of the northern edge of the Disputed Way from Pine City Street east. Trees lined much of the southern edge of the Disputed Way, until its intersection with Holmes Avenue.

13. In July 1994, the Rollstons conveyed 15 Holmes to their daughter, Janette Sears, although the Rollstons reserved a life estate in the property. Sears had been living continuously at the property since September 1991; the Rollstons lived there during the warmer months. Between 1991 and 2010, Sears's daughter, Trustee Boutiette, visited Sears every other day to care for Sears, who was disabled.

14. In January 1995, Ms. Sears conveyed the property (still subject to the Rollstons' life estate) to Steven Robbins, Trustee of the JLS Real Estate Trust, under a declaration of trust recorded at the Plymouth County Registry of Deeds in Book 13382, Page 21. At the time Sears conveyed the property to the JLS Real Estate Trust, she chose to retain her own life estate in the property.

15. Mr. Rollston died in 2005. In 2006, the declaration of trust for the JLS Real Estate Trust was amended to name Ms. Boutiette and her sister, Karin M. Holland, as successors to Trustee Robbins. Ms. Rollston died in 2009. Trustee Boutiette moved to the property as a permanent resident in 2010. Ms. Sears died in 2017.

16. Every witness who testified at trial described Ms. Sears as nice and neighborly. No one spoke ill of her.

17. Trustee Holland testified that she had talked once with her mother in the spring of 1994 about the Dugans. The conversation was one-on-one. Holland was aware at that time that the Dugans were using the Disputed Way and the Pond Path. Ms. Sears reportedly told Holland that she'd given the Dugans "permission to use the property."

18. Trustee Boutiette testified that she had talked once with her mother in the summer of 1994 about the Dugans. Like Trustee Holland's alleged conversation, this conversation too was one-on-one. At the time, Boutiette was aware that the Dugans were using both the Disputed Way and the Pond Path. Ms. Sears allegedly told Boutiette that Sears had given the Dugans "permission" for that use, although at one time in her testimony Boutiette described Sears as having given the Dugans "permission to use the pond."

19. In light of the evidence concerning (a) Sears's neighborliness; (b) the distant date of the two alleged 1994 conversations; (c) the timing of Trustee Holland's alleged conversation with her mother (coming before Sears even acquired 15 Holmes – she merely resided there); (d) the lack of direct testimony from Sears, the only person who purportedly communicated the alleged permission to the Dugans, about the precise context and content of those communications; (e) the Dugans' denial of any such discussions with Sears pertaining to the Disputed Way; (f) the Dugans' understanding as of late 1993 that their deed to 13 Holmes gave them a deeded right to use the Disputed Way; and (g) later "access" controversies in the neighborhood, which focused primarily on access to and use of the Pond (and not the Disputed Way), I do not interpret Sears's alleged statements to her daughters, if she even made them, as demonstrating that she communicated to the Dugans permission to use the Disputed Way. Instead, both statements, if made, indicate only that Sears acquiesced in the Dugans' use of the Disputed Way. The Trustees similarly acquiesced in such use through at least December 2013.

20. Sometime between 2002 and 2004, the owners of 15 Holmes had "No Trespassing" signs posted along the Pond Path. The Dugan spoke with members of the Sears family around that time (Mr. Dugan spoke with Ms. Sears, and Ms. Dugan spoke with Ms. Boutiette). Both told the Dugans that the signs weren't aimed at the Dugans, but instead were intended for "off-lake people." Ms. Dugan understood Ms. Boutiette's statement as granting the Dugans permission to use the Pond Path – permission that the Trustees later withdrew. Ms. Dugan didn't take the statement as including, or even pertaining to, permission to use the Disputed Way. As of the time the "No Trespassing" signs appeared, the Dugans were still under the impression that their deed to 13 Holmes gave them the right to use the Disputed Way.


The Dugans' complaint in this action contains only one count: that for a declaration that they have acquired an easement by prescription, appurtenant to their property at 13 Holmes, over the Disputed Way. They also ask for an order enjoining the Trustees and their successors in interest to 15 Holmes from interfering with the Dugans' (and their successors in interest to 13 Holmes's) enjoyment of the Way.

"[A] claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007); see also G.L. c. 187, § 2.

The first question is when the claimed prescriptive use begins. The Dugans argue that it started as early as 1990, when Robert Ferreira, the tenant of the Dugans' predecessor in interest, Douglas Pilkuhn, started using the Disputed Way. A person claiming an easement by prescription may tack on to his or her period of open/notorious/adverse use his or her grantor's similar use, and thereby establish the minimum-required, continuous twenty-year period of such use. See, for example, Kershaw v. Zecchini, 342 Mass. 318 , 320-21 (1961). But the key to tacking is the similarity of the use: in order for the Dugans to benefit from Ferreira's use of the Disputed Way, the Dugans must prove that Ferreira's use was not only open and notorious, but also that it was adverse. While the Dugans proved that Ferreira never sought permission from the Harrimans or the Rollstons to use the Disputed Way, the Dugans failed to prove that Ferreira's landlord, Pilkuhn, never sought permission. The record is silent as to Pilkuhn's discussions (if any) with the Harrimans or the Rollstons concerning use of the Way. The Dugans thus have not proved that Ferreira's use of the Disputed Way was adverse. The Dugans must establish whatever prescriptive rights they claim using solely their own conduct.

Have the Dugans proved twenty years of their own adverse use? Yes. They began using the Way in December 1993, and kept using it until May 2017. That use was open, notorious, and continuous. That typically would be enough to create a presumption that their use was adverse too. See Tucker v. Poch, 321 Mass. 321 , 323-24 (1947); Foot v. Bauman, 333 Mass. 214 , 217-18 (1955); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835-36 (2008).

The Trustees contend that this isn't the typical case. They argue that when many people use an easement, and most of them have deeded rights to do that, a freeloader who tries to get the same rights via prescription must do more than just use the easement in order to create a presumption of adverse use. The Trustees cite for this proposition Sprow v. Boston & Albany R.R., 163 Mass. 330 (1895), but a close look at its facts reveals that it doesn't support the Trustees' argument.

On a stormy day in 1892, 23-year-old Ellen Harrod, an "active and strong" housekeeper who roomed on Greenwood Avenue in Newton, was hurrying to lunch. Greenwood Avenue descended a steep hill and crossed four tracks, operated by the Boston & Albany Railroad. One hundred and eighty-seven trains, travelling east and west, crossed Greenwood Avenue daily. No signs, gates, or flagmen warned of their approach.

Harrod clutched her umbrella and pointed it to the west, fighting the driving wind and rain. She cleared the first B&A track, but the 12:15 eastbound express on Track Two struck and killed her. Her executor, Leonard Sprow, sued the B&A and claimed damages under 1882 Pub. St. c. 112, § 213. Section 213 made railroad corporations liable for certain accidents occurring at crossings described in c. 112, § 163, including any place that a "highway, town way, or travelled place over which a signboard is required to be maintained as provided in [c. 112, §§ 164 or 165]" crossed railroad tracks at grade.

Greenwood Avenue was not a public way, but Sprow argued that it had become a "town way" by prescription. The evidence showed that Elias Jenison had reserved what became Greenwood Avenue out of land he had sold to the B&A in 1834; the reserved Avenue gave Jenison access to 40 acres he owned on the south side of the tracks. By 1892, buildings and upwards of 30 houses occupied Jenison Acres (including the place Harrod lived), and an estimated 150 persons passed over Greenwood Avenue daily. Sprow claimed that decades of public use of Greenwood Avenue had turned it into a town way by prescription.

The court held that Sprow couldn't prove his case that easily:

The fact that there was a private way across the railroad by reservation does not prevent the public from gaining a right to use the way by prescription; but . . . the existence of a private way makes it necessary to examine with more care the alleged public use, to see whether . . . it has the characteristic of a use under a claim of right, as distinguished from a use of the private way which was assented to or permitted. If one in walking or driving finds a way open before him, and uses it because it seems to be intended for such use, this alone does not show that he uses the way as a matter of right, and such use would not establish a prescriptive right, no matter how frequent or how long continued it might be. Merely from using what is open to use, without more, no presumption arises that the use is adverse. In other words, there must be something to show that the way is used as a public way, rather than as an open private way. . . . [It is not] easy to express in what particular manner such assertion of right should be shown. Nevertheless the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right to travel over the private way, and also from a use which is merely casual, or incidental, or permissive.

Sprow, 163 Mass. at 339-40. The court further observed:

It was incumbent on the plaintiff, not merely to show an adverse public use, under claim of right, continued for twenty years, but also that during that period the defendant acquiesced therein. Acquiescence implies that the defendant knew, or had reason to believe, that there was such an adverse use. The crossing might be used as of private right by the occupants of the . . . houses built upon the land formerly belonging to Jenison. . . . Persons having legitimate occasion to go to or from those houses might also rightfully use the crossing. . . . Looking at it practically, the railroad company might find a difficulty in distinguishing between those who had a right to pass over the crossing and those who had not.

Id. at 341-42.

Sprow thus stands for the proposition that if one enjoys a private right to use a way – which Ellen Harrod did, being a tenant in Jenison Acres, whose owners held the dominant estate in Greenwood Avenue over the B & A's servient parcel – one must prove more than one's exercise of one's private rights in order to claim additional rights in that way. In Sprow, the additional rights were those associated with a "town way," as that term appeared in Pub. Stat. c. 112, § 163; Sprow holds that in order for Harrod's estate to prove that she and others had turned private Greenwood Avenue into a "town way," someone needed to have asserted "public" rights in private Greenwood Avenue, separate and apart from merely using the way, so as to put the B & A on notice that, with the passage of twenty years, Greenwood Avenue could become a "town way."

The Dugans' claims against the Trustees don't present the Sprow problem. That's because the Dugans have no rights to use the Disputed Way (other than by prescription, if they win their case here). The Dugans also aren't claiming that the Disputed Way has become a public way or town way by prescription, which likewise would require proof of something more than their mere continuous use of the Way. Instead, the Dugans are claiming, for themselves alone, a private easement, acquired by prescription.

Themes similar to those discussed in Sprow appear in two other cases, Kilburn v. Adams, 48 Mass. (7 Met.) 33 (1843), and more recently Houghton, 71 Mass. App. Ct. at 825, but they don't aid the Trustees. In both Kilburn and Houghton, plaintiffs who enjoyed lands left open to the public (in Kilburn, the grounds of Groton Academy, including a path that led from an abutting highway to the Academy's building; in Houghton, a town landing, a public beach, and private and public tidelands) attempted to claim easements by prescription in areas not intended for public use. In both cases the courts rejected the prescriptive claims. Both courts noted the need for the plaintiffs to prove something extra, so as to put the owner on notice that someone was using the owner's lands for purposes other than those the owner had authorized. Hence in Kilburn, 48 Mass. at 39:

The rule we think is, that where a tract of land, attached to a public building . . . and occupied with such house, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive, and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to enclose it, such use is not adverse. . . . And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right.

And Houghton, 71 Mass. App. Ct. at 840-41:

Based on the undisputed facts that the disputed beach area abuts public property, that it could not be enclosed from the dunes seaward because of tidal action, that [owners of the disputed area] had no right to prohibit the plaintiff "beach users" or anyone else from exercising their right to fish, fowl, and navigate along the areas between the high and low water marks . . ., and that the "beach users" use of the disputed area was no different in nature from their use of all [private and public areas on] Kingsbury Beach, we conclude that each plaintiff was required to show more than a collective but individually sporadic and nonexclusive use of the disputed area . . . in order to be entitled to the benefit of the presumption [of adversity arising after twenty years of open, notorious and continuous use]. See Kilburn v. Adams, 7 Met. 33 , 39 (1843), a case involving prescriptive easement claims in open and unenclosed property in which it was held that because of the difficulty in overseeing or monitoring the use of open and unenclosed land, claimants of adverse rights in such property mush show "some decisive act, indicating a separate and exclusive use, under a claim of right . . . open and ostensible, and distinguishable from that of others." See also Sprow v. Boston & Albany R.R., 163 Mass. 330 , 339-340 (1895).

Note that Houghton suggests that it and Kilburn apply only in situations involving open and unenclosed land. Sprow didn't involve such land, but it offers a similar rule for resolving prescriptive-easement disputes affecting lands that are difficult to monitor. But even if one could extend the Kilburn/Sprow/Houghton doctrines to every situation where, owing to allowed uses, a landowner shouldn't be expected to detect unauthorized uses, that's not the situation here. The Disputed Way does not lie within what Kilburn and Houghton call open and unenclosed land: the Way is only 100 yards long, and is bordered, at various places (including its intersections with Pine City Street and Holmes Avenue), by fences and trees. And while the Way has received some level of maintenance by the Town of Carver, the parties didn't establish at trial general public use of the Way. Instead, the universe of the Way's lawful users (besides the Trustees) consists of the owners of only five lots, all of which lie north or west of 15 Holmes.

There's also an important difference between the Trustees and their predecessors in interest – first the Rollstons, and then Ms. Sears – and the B&A regarding their abilities to monitor use of their respective disputed ways. The Rollstons, Sears and the Trustees personally occupied the same fixed location, and had the ability to share their observations (if they wanted to) as to who using the Way. By contrast, while the B&A operated as many as 187 trains daily over Greenwood Avenue, one can assume that (a) many B&A employees made that happen, (b) each likely had no more than a few seconds per trip to observe what was happening at Greenwood Avenue, and (c) they had insufficient means for sharing their observations. The Trustees and their predecessors in interest thus have been in a far superior position to distinguish between the Dugans' use of the Way – a use that each time started (or ended) literally in front of 15 Holmes, and was visible from the interior of 15 Holmes – from that of the Way's five lawful users.

The Court thus holds that, because the Dugans used the Way for more than twenty years beginning in December 1993, they earned by December 2013 the benefit of a presumption that their use was adverse to the Trustees' fee interest in the Way. Once a person who claims a prescriptive easement demonstrates that he or she is entitled to a presumption of adverse use, the burden shifts to the owner of the servient property – here, the Trustees -- to rebut the presumption. See Houghton, 71 Mass. App. Ct. at 841-842; Daley v. Town of Swampscott, 11 Mass. App. Ct. 822 , 827 (1981). (Because the Dugans benefit from the presumption beginning in late 2013, the Court disregards the Trustees' arguments that after that time, they interrupted the Dugans' use of the Way.) One way to rebut the presumption is to prove that the owner of the alleged servient estate gave the claimant permission for the use. Permission is different from acquiescence; giving permission for a use defeats the presumption of adverse use, while tacit acquiescence in that use doesn't. See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964); Rotman v. White, 74 Mass. App. Ct. 586 , 589-90 (2009).

Whether a use is permissive or non-permissive "depends on many circumstances, including 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 claiming ownership." Totman v. Malloy, 431 Mass. 143 , 145 (2000). Here's how these factors play out in this case:

Character of the Way. The Disputed Way is a road, originally made of hard dirt, but later paved. At its junction with Holmes Avenue, it is partially enclosed by the fence on 13 Holmes; at its Pine City Avenue end, trees and other fences line the Way. Nothing about the Way's character indicates that the owner of 13 Holmes would have permission to use it. Whatever signs have been posted at or near the Disputed Way have communicated the lack of permission to use the Way.

Who benefits from the Way. Only a handful of persons have deeded rights to use the Way. That handful doesn't include the Dugans. The Trustees and their predecessors in interest also received no benefits from the Dugans' use of the Way.

The manner in which the Way has been held and maintained. At all times the Trustees and their predecessors in interest have owned the Way, privately, subject to the rights of the Easement Holders. That tilts against a finding of permissive use. On the other hand, the Town's occasional maintenance of the Way is a factor that leans in favor of permissive use, as why else would the Town provide such upkeep?

The nature of the individual relationship between the parties claiming ownership.

During the prescriptive period, the Trustees and their predecessors in interest have been only neighbors to the Dugans – for much of the time, good neighbors, but in the end, only neighbors. There are no family or similar ties between the Trustees and the Dugans. The Court also has found that the Trustees and their predecessors in interest did not speak with the Dugans about permission to use the Disputed Way, and there's no evidence of a friendly exchange between the parties, out of which the Dugans were allowed (or could assume they were allowed) use of the Way. See, for example, DiNino v. Newman, 24 LCR 697 , 700 (2016) (mutual sharing of common driveway, coupled with close family ties, is sufficient proof of permissive use).

In light of the facts found after trial, the Court holds that the Trustees and their predecessors in interest did not give the Dugans permission to use the Disputed Way during the twenty-year period that began with the Dugans' purchase of 13 Holmes. The Trustees and their predecessors in interest instead acquiesced in that use, until sometime in 2014. The Court thus holds that the Dugans have established an easement by prescription over the Disputed Way for access and egress to 13 Holmes, including access by vehicle (but for no other purposes), and are entitled to an injunction preventing the Trustees and their successors in interest to 15 Holmes from interfering with the Dugans and their successors' use of the Way. The Dugans have not proved their entitlement, however, to a way of any particular width or in any particular location. The Trustees and their successors in interest to 15 Holmes thus retain their rights under M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), with respect to the Dugans' easement.

Judgment to enter accordingly.