Home PETER STEARNS v. JOHN RISSO, individually and as Trustee of the John F. Risso Trust, and ROBYN RISSO, individually and as Trustee of the Robyn L. Risso Trust.

MISC 15-000199

April 5, 2019

Plymouth, ss.




Defendants John and Robyn Risso own land on Old Sandwich Road in Plymouth, shown as Lot 18 on the 2003 town assessor's map. See Ex. 1 (attached). A long-existing cart path, which acts as their driveway, runs across their land east to west, connecting to Old Sandwich Road. Id. [Note 1] A fork off the path connects to another long-standing cart path running north/south across other land, formerly in multiple ownership, but now owned by plaintiff Peter Stearns. See Ex. 1. [Note 2] Most, if not all, of the land in the area has traditionally been used for cranberry farming, and these cart paths are but two of the many that wind through the fields to various ponds. See Exs. 1 & 4.

Mr. Stearns has lengthy frontage along Old Sandwich Road and, in the past, his father constructed a direct connection from Old Sandwich Road to the north/south cart path, located entirely on the Stearns' own land, to serve their cranberry farming activities. For ease of reference, I refer to it hereafter as the "Direct Route." See Ex. 2. But rather than using this route, or as a supplement to it, Mr. Stearns would prefer to improve and use the short section of the north/south cart path on the Risso property that connects to the fork, and then the section of the Rissos' driveway that goes from that fork to Old Sandwich Road, and claims a prescriptive right to do so. For ease of reference, I refer to this route hereafter as the "Risso Route." See Ex. 3.

In support of his prescriptive easement claim, Mr. Stearns alleges that he and his predecessor owners have used the Risso Route for over twenty years for access to the cranberry bogs on the now-Stearns property. Although the Rissos oppose Mr. Stearns' claim on other grounds as well, [Note 3] their primary contention is that the use of the route across their land has been permissive, not adverse. The difference is significant. Permissive use is a license which can be terminated. Adverse use, after ripening into a prescriptive easement, not only establishes a permanent, non-terminable right of use unless extinguished or abandoned, but gives the now- easement holder the right to "improve" the easement not only as it was used in the past, but also to any "normal evolution to satisfy new needs" so long as the variations are not substantial and are "consistent with the general pattern formed by the adverse use." See Carmel v. Baillargeon, 21 Mass. App. Ct. 426 , 430 (1986); Glenn v. Poole, 12 Mass. App. Ct. 292 , 295-296 (1981). Here, that might well include whatever is necessary to run heavy motorized equipment over the path in all seasons — a matter of great concern to the Rissos not only because of its intrusion on their privacy, but also because of its effect on the horse-riding and other uses they make of their land.

Mr. Stearns' prescriptive easement claim, as well as a counterclaim by the Rissos alleging that they have prescriptive rights to horseback ride over the paths and fields on Mr. Stearns' property, were tried before me, jury-waived. [Note 4] Based on the stipulations, testimony, and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the past use of the Risso Route was permissive, not adverse, and thus no prescriptive easement exists. Mr. Stearns' claims are thus DISMISSED, WITH PREJUDICE. The Rissos' counterclaim is also DISMISSED, WITH PREJUDICE, because their use was also permissive.


These are the facts as I find them after trial. To the extent any witness testified otherwise, I find that testimony not credible, unreliable, and against the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

Mr. Stearns is the current owner of Lots 5A, 6A, 6B, 10, 11, 12, 14, and 15 containing approximately 230 acres of contiguous land (together the "West Property"). See Ex. 1. The West Property has lengthy frontage along the west side of Old Sandwich Road, and abuts the Rissos' property (Lot 18) to its north. Id. Mr. Stearns also has land on the other (east) side of Old Sandwich Road (Lots 14A-1 and 14A-2, hereafter, the "East Property") whose bogs are connected to Old Sandwich Road by Indian Brook Road. See Ex. 4. [Note 5]

Mr. Stearns' West Property currently has active cranberry bogs on lots 6B, 10, and 14. His East Property currently has active bogs on Lot 14A-1. The Rissos' Lot 18 also has a cranberry bog, as well as an extensive horse farm. Since 1987, the Rissos have been riding horses on both Mr. Stearns' West Property and East Property, and the clients of their horse farm have done the same.

The route at issue in this case (the Risso Route) begins at Old Sandwich Road, runs west over the Rissos' property until it reaches a fork (the main path itself continues west to the Rissos' house), and then takes that fork south until it connects to the north/south path that winds over the Stearns property leading to various ponds. See Ex. 3. The Rissos, the Stearns, their predecessors, and the other local bog owners and members of the tight-knit community in this part of Plymouth were accustomed to using its full length to get to the ponds for recreational and other purposes. As more fully explained below, all of that use has been permissive.

The Risso Route just south of the fork formerly had a westerly bend in it. In the spring of 1991 the Rissos, who were in the process of clearing land to establish a fenced-in horse pasture, removed the bend and straightened it between the fork and the boundary line with the Stearns' property. By letter dated April 5, 1991 from their attorney, David Delaney, to Mr. Stearns' attorney, Lothrop Withington, the Rissos informed Mr. Stearns that, in realigning the route, they would "of course not interfere with [his] use of the relocated woods road for access to his cranberry bog" — a use they considered permissive. [Note 6]

There is a second route from the north/south path to Old Sandwich Road, wider and more direct, located entirely on the Stearns' property (the "Direct Route"). It was constructed by Mr. Stearns' father, William Stearns Sr., in 1974, and crosses Mr. Stearns' Lot 10, beginning at Old Sandwich Road, continuing across the Lot, and then connecting with the path. See Ex. 2. From 1966 to 1974 the Risso Route was the only one used to access Lot 10 for agricultural purposes. What prompted the construction of the Direct Route in 1974 was Mr. Stearns' father's adoption of the "wet picking" method of cranberry harvesting, which requires different equipment, is more intensive, and results in a faster harvesting of the cranberries, producing a far greater daily volume. Unlike the Risso Route, the Direct Route could accommodate the 40-foot and longer trailers that were necessary to transport the volume of cranberries that could now be harvested in a single day using the "wet picking" method.

The Stearns used the Direct Route from approximately 1974 to 1983 to transport cranberries harvested from their two bogs adjacent to Dugway Pond. During this time, Mr. Stearns and his workers used the Risso Route only when passing to or from the Dugway Pond properties for other purposes, typically with small trucks and light agricultural equipment. Mr. Stearns and his workers stopped using the Direct Route for hauling harvested cranberries in 1983, but it still exists and can easily be reinstated to full use. Because of this, and because he has extensive frontage on Old Sandwich Road on which he can construct other access routes to all parts of his property, Mr. Stearns does not need the Risso Route.

The Prior Ownership and Use of Lots 6A and 6B, Now Owned By Mr. Stearns

Lots 6A and 6B are shown as Lot 6 on the January 1, 1955 Plymouth Assessor's Map (see Ex. 5) and as Lots 6A and 6B on the January 1, 2003 Plymouth Assessor's Map (see Ex. 1). They and the northern bog on Lot 10 were owned by Frank Tays, a cranberry grower, prior to 1926, and then by John Raymond until 1936 when he conveyed the bog on Lot 10 (along with the rest of the Lot) to Benjamin and Edward Watson, retaining what is now Lots 6A and 6B for himself. When John Raymond died on August 11, 1943 he still owned what is now Lots 6A and 6B, and they were taken by the Town of Plymouth at some point after 1949 for unpaid real estate taxes. There was no persuasive evidence that the bogs were in use from 1943 until the time Lot 6B was sold to Elmer Raymond, a cranberry grower, by Treasurer's deed dated December 14, 1953. Elmer Raymond stopped working the cranberry bogs on Lot 6B in 1976, and thus ceased using the Risso Route for that purpose. Mr. Stearns purchased Lot 6B from Elmer on January 22, 1985, and then, in April of 1989, acquired Lot 6A.

As the witnesses testified, the cranberry business is a difficult one, with many ebbs and flows depending upon weather, field, and market conditions. The cranberry bogs in this area were small operations, individually owned and worked, and particularly susceptible to these ebbs, flows, and other interruptions. There may thus have been other interruptions, breaking continuity, in addition to the ones specifically noted. This may also be the case on all of the other lots. [Note 7]

The Prior Ownership and Use of Lot 10, Now Owned By Mr. Stearns

The three separate parcels which now make up Lot 10 came under the common ownership of John Raymond (the same John Raymond referenced above), between 1903 and 1926. As noted above, John Raymond conveyed Lot 10 to Benjamin and Edward Watson on April 28, 1936. On August 19, 1966 the Watsons conveyed Lot 10 to William and Martha Stearns (plaintiff Peter Stearns' parents). At this time the Risso Route was the sole means used to access Lot 10 for agricultural purposes, although other access could have been created at any time and, in fact, was so created in 1974 (the Direct Route). [Note 8] In 1978 the Stearns conveyed Lot 10 to their company, Indian Brook Cranberry Bogs, Inc., which conveyed Lot 10 to the plaintiff (Peter Stearns) in 1984.

The Prior Ownership and Use of Lot 14, Now Owned By Mr. Stearns

There was an active cranberry bog on Lot 14 in 1966, which was owned and farmed by William Clark at that time. Mr. Clark used the Risso Route in connection with that farming and, in addition, frequently traveled it with his friend, Plymouth police officer Larry Strassell and Officer Strassell's friends (mostly other police officers), to go to and from Lot 14 for recreational purposes — primarily hunting and fishing. Mr. Clark ceased using the Route for cranberry purposes in 1986 when he stopped driving and no longer farmed the bog, but continued occasionally visiting the Lot, driven either by his son Harold or Officer Strassell or his friends, until he died on October 6, 1991.

Lot 14 was left to Mr. Clark's heirs, and there was no cranberry farming on the Lot after 1986 until Mr. Stearns purchased it from those heirs on April 18, 1997.

The Prior Ownership and Use of Lot 18, Now Owned By the Rissos

Lot 18, now owned by the Rissos, is an assembly of prior lots and portions of lots. Compare Ex. 1 (2003 tax assessor's map) with Ex. 5 (1955 map). The bulk of Lot 18 is the former Lot 5, which had no frontage on Old Sandwich Road and could only be accessed via the cart path over former Lots 2 and 3. See Ex. 5. As discussed more fully below, that access – like everyone else's – had been permissive.

The Rissos' predecessor, Franklin Griswold, owned Lot 2 and Lot 5. To ensure he would have an express right to use the path where it crossed the gap between those Lots (i.e., where it crossed the-then Lot 3), Mr. Griswold obtained a written easement to do so from the then-owner of Lot 3, Stephen Lang, trustee of the Stede Trust. In conjunction with their purchase of Lots 2 and 5 from Mr. Griswold, the Rissos did a land swap with Mr. Lang, creating the new Lots 17 (Lang) and 18 (Risso). [Note 9] This realignment of the boundary lines gave Mr. Lang direct frontage on Old Sandwich Road (thus giving him a direct right of access), and it put the entirety of the cart path on the Rissos' Lot 18, eliminating their need for the easement (and the easement itself) because they now owned its underlying land in fee. [Note 10]

The Area Over Which Mr. Stearns Claims Prescriptive Rights

As noted above, Mr. Stearns claims a prescriptive right to use and improve the Risso Route.

That claim was first articulated in 1991, soon after the Rissos told Mr. Stearns that they were straightening the north/south path in the portion on their property, but assured him that he still had their permission to use it on its re-aligned course. Perhaps as a result of being told the consequences of having only permissive use (i.e., that the Rissos could revoke that permission at any time and veto any improvements), Mr. Stearns had his attorney, Lothrop Withington, ask the Rissos' attorney, David Delaney, for an express easement "so that there will never be any question about [Mr. Stearns'] rights thereon." [Note 11] The attorneys exchanged a series of letters over the course of the next few months, with the Rissos agreeing to grant an express easement if, but only if, Mr. Stearns granted them express easements over his portion of the north/south path as well as over his East Property on the other side of Old Sandwich Road. This was not acceptable to Mr. Stearns, nor was the Rissos' insistence on limitations to the improvement of the path, so agreement was never reached. The correspondence ended with attorney Withington stating that he would shortly be filing a lawsuit seeking to establish prescriptive rights, which he never did. The Rissos testified, and I so find, that the parties, speaking directly, effectively reached a "standstill" agreement under which, by mutual permission, the Rissos agreed to allow Mr. Stearns to continue using the Risso Route, and Mr. Stearns agreed to allow the Rissos and their horse-farm clients to ride on his property, without prejudice to any pre-existing rights they each might have, and without prejudice to their right to file a lawsuit for definitive adjudication based on those pre-existing rights, if any. [Note 12] The controversy only reemerged in 2006 when the Rissos installed a gate across the route in response to Mr. Stearns' "No Horses" sign — a sign they interpreted as revoking his permission for them to ride across his land. [Note 13]

Prior to Mr. Stearns' response to the Rissos' April 5, 1991 letter, the parties and their predecessors' relationships were "always reciprocal," cooperative, and collegial, with each of them helping the other out when needed and raising no objection, ever, to the others' passing over their land. [Note 14] As previously noted, the bogs were individually owned, small, and worked by their individual owners, all of whom were long-standing friends. Each of them allowed not only the others, but also the others' friends, to cross their lands freely at all times for all purposes, including hunting and fishing, [Note 15] and not only for recreation but also for all aspects of their cranberry farming operations. They borrowed each other's equipment. They kept an eye on each other's properties. They cooperated to protect each other's cranberry plants on "frost nights" — times when the temperature dropped and, in order to protect the fruit from frost damage, the fields were covered with a blanket of water. [Note 16] None were in competition with any of the others, and no request for cooperation was denied. [Note 17] Although sometimes verbal permission was asked or given to people who wanted to hunt, berry-pick, or ride horses in the area, this was not something required or enforced. The general culture and understanding between those living and working there was one of sharing and cooperation, and people would never consider denying each other the use of existing paths. [Note 18] That was not the culture, nor their expectations of each other.

A party need not intend to make a claim of right to use another's land for a prescriptive easement to accrue; his conduct is deemed to speak for itself. See AM Properties LLC, 91 Mass. App. Ct. at 156-157. But for that conduct to do so, it must be "sufficient to put a reasonable owner on notice of the hostile activity and thus afford the owner an opportunity to act to vindicate his or her rights." Id. at 157. Here it did not. In the context of their relationship with each other, their conduct towards each other, and the mutual expectations that created, no reasonable bog owner would have viewed another's use of the cart path as an adverse claim. Permission to use it was implicit — "implied though not directly expressed…with no qualification or question." See Oxford Concise Dictionary at 712 (10th Ed, 1999) (definition of "implicit").

Further facts are set forth in the Analysis section below.


Mr. Stearns contends that he has a prescriptive right to use the Risso Route to Old Sandwich Road and to improve it in connection with his cranberry farming operations. I disagree. He has failed to meet his burden of proof, and the Rissos have shown that whatever use he and his predecessors made of the Risso Route was permissive.

A party asserting easement rights has the burden of proving that an easement exists. See Goldstein v. Beal, 317 Mass. 750 , 757 (1945). "An easement by prescription is acquired by the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty years." White v. Hartigan, 464 Mass. 400 , 413 (2013); see also G.L. c. 187, § 2. The burden of proving each of these elements "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) (internal citations omitted).

"Whether the elements of a claim for prescriptive easement have been satisfied is essentially a factual question for the trial judge," White, 464 Mass. at 414, quoting Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009). In making that determination, the judge assesses the credibility and weight of the evidence, and is not bound "to believe or construe the evidence as the [losing party] wished it to be believed or construed." See Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990).

Based on my assessment of the totality of the evidence, I find and rule that Mr. Stearns' and his predecessors' use of the Risso Route prior to 1991 was not adverse, nor could it reasonably have been viewed by the owners of the fee in that route as adverse. Rather, it was permissive. I further find that, shortly after the last of their lawyers' letters in May 1992, the parties verbally reached a "standstill" arrangement under which they concurred that their rights would be determined on the basis of their prior conduct and everything after that date would be "without prejudice" to either of them. Even had they not reached that agreement and all conduct afterwards is assumed to be adverse (a question I need not and do not reach), Mr. Stearns' post- 1991 conduct failed to establish prescriptive rights because there were not twenty or more years of continuous, uninterrupted adverse use thereafter.

Use Prior to April 5, 1991 When the Exchange of Letters Between the Attorneys Began

It is undisputed that Mr. Stearns and, during the period of their ownership, his predecessor owners, openly used the Risso Route. [Note 19] Whether that use for cranberry farming (the prescriptive use claimed by Mr. Stearns) was sufficiently "significant and continual" for twenty years or more [Note 20] and, if so, on which parts of his land, is disputed, but for purposes of deciding this case I need not and do not reach that question. [Note 21] This is because whatever use that occurred in connection with any part of the land he now owns was not adverse but, instead, permissive. Permission, express or implied, negates adversity. Rotman, 74 Mass. App. Ct. at 589; see also Stafford v. Flett, 25 LCR 83 , 89, 2017 WL 35520 at *10 (Mass. Land Ct., Jan. 4, 2017) (record owner of land can defeat a claim of prescriptive easement by "producing evidence of express or implied permission," citing Totman v. Malloy, 431 Mass. 143 , 145 (2000)).

"The rule in Massachusetts is that wherever there has been the use of an easement for twenty years, unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." DiNino v. Newman, 24 LCR 697 , 700 (2016), quoting Truc v. Field, 269 Mass. 524 , 528-529 (1930). "However, this presumption is overcome where, as here, there is ‘evidence of permission beyond mere acquiescence.'" DiNino, 24 LCR at 700, quoting Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. P'Ship, 23 Mass. App. Ct. 528 , 531 (1987). The evidence of implied permission in this case not only overcame the presumption of adversity, but affirmatively established that the Rissos and, prior to the Rissos, their predecessor owners, permitted Mr. Stearns and his predecessors to use the Risso Route.

Massachusetts does not have a per se doctrine of "neighborly accommodation", i.e., a doctrine that the mere fact of a friendly or close relationship between the parties, without more, requires an inference of permissive use. See Lantern Lane House, Inc. v. Hummel, Mem. & Order Pursuant to Rule 1:28, 91 Mass. App. Ct. 1115 (2017), 2017 WL 1278388 at *2-*3. But the nature of the parties' relationship with each other is a factor, and a context in which other factors are to be evaluated, when determining whether use has impliedly been permitted or, instead, the fee owner should reasonably have concluded that the claimant's acts were adverse and thus be deemed to have "acquiesced" to that adverse use. See id. "Whether a pattern of conduct and use suggests permission ultimately is a question of fact, which depends on the weight of the evidence, the credibility of the witnesses, and the reasonable inferences to be drawn therefrom." Smaland Beach Ass'n, Inc. v. Genova, 94 Mass. App. Ct. 106 , 115 (2018).

The focus is on whether, objectively, in light of all the circumstances, the use should reasonably have been seen as adverse.

"Adverse acts, sufficient to establish a prescriptive easement, must be of such a nature that the true (record) owner would see them as a claim of right by the claimant—the right to do these things—and thus be on notice that he (the record owner) should take countermeasures." DiNino, 24 LCR at 699 (emphasis in original), citing Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808); Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004); Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). [Note 22] The use of the Risso Route, by any of its users, was the opposite of that. The bog owners in the area were friends, cooperated in all things at all times with each other, and were mutually supportive. That mutual view of their relationship and the nature of their use of the Risso Route, evidenced by their conduct, amply shows that their use of that route was with implied permission and not adverse. [Note 23] See DiNino, 24 LCR at 699. See also Totman, 431 Mass. at 145 ("Whether a use is nonpermissive 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"). If, as here, a use began with permission, "there is and should be a heavy burden on the [claimant] to show by clear evidence that the use has shifted at some point from permissive to adverse, so as to put the owner on clear notice that he should take steps to protect his rights." Begg v. Ganson, 34 Mass. App. Ct. 217 , 221 (1993). Here, there was no such shift with respect to this route.

As shown by the parties' close relationship and their decades-long reciprocal, cooperative conduct towards each other as detailed above, Mr. Stearns' and his predecessors' use of the Risso Route could not reasonably have been seen as adverse, and I find that it was not.

Use After 1991

The first real notice that a claim of right was even being considered came in April 1991 when, by letter from his counsel, Mr. Stearns requested an express easement, purportedly so there would "never be any question" about his right of use. However he seeks to characterize it now, this letter was an admission by Mr. Stearns that his use thus far had been, at best, less than clear as an assertion of right. Even assuming that the 1991 letter now made such an assertion "clear", his use from and after that date, even if deemed adverse, did not establish a prescriptive easement. This is because, after 1991, his use of the route was not continuous for twenty years. Rather, it was interrupted on at least two occasions during those twenty years, first in 2001/2002 when he did not use the Route for his cranberry operations (he sold no cranberries from those bogs those years), and second, in 2006, by the gate that the Rissos put across the route, after which his use was clearly permissive.

The gate came about as follows. In the Spring of 2006 Mr. Stearns posted "No Horses" signs on his property. In response, on April 4, 2006, the Rissos informed him that they would be installing a locked gate across the Risso Route, noting the fact that he had an alternate means of access (the Direct Route). They put the gate approximately thirty feet south of the fork. In response, Mr. Stearns agreed to reinstate his horse riding permission and, in return, the Rissos provided him with a key, underscoring that his use of the Route was permissive. Mr. Stearns, who did not challenge the gate in a court proceeding, thus acquiesced in the message the use of a key sent.

On October 22, 2014, after relations once again deteriorated, the Rissos sent Mr. Stearns notice of their intention to change the lock on the gate on November 22, 2014, denying Mr. Stearns further access, and changed the lock on that day. In an April 1, 2015 "stand down" agreement, the Rissos provided Mr. Stearns with a key to the new lock and Mr. Stearns granted the Rissos a license to ride horses on his property. Use thus continued to be permissive.

The Counterclaim

The Rissos made a two-part counterclaim.

The first was their claim of a prescriptive easement for horseback riding over the portion of the north/south cart path that crosses Mr. Stearns' West Property (i.e., crossing Lots 6A, 10, 12, 14 and 15), and also over the Direct Route constructed by Mr. Stearns' father. It is telling that Mr. Stearns contests this on the same grounds that the Rissos contest his claims – that the use was not adverse. Mr. Stearns and his father, like all of the landowners in the area as part of the overall culture, had permitted bog owners, hunters, fishermen, blueberry pickers, and horseback riders on their property since the time of their first purchase in 1966. [Note 24]

The second was the Rissos' claim of a right to horseback ride over the cartpath known as Indian Brook Road, which travels across Mr. Stearns' East Property and which they allege is a town way, and a prescriptive right to ride over that and all of the other cart paths which cross Mr. Stearns' East Property on Lot 14A-1. Mr. Stearns contests these assertions, contending that Indian Brook Road is not a town way or otherwise public, and that the Rissos have no prescriptive rights to any of these cartpaths because their use of them was sporadic, secretive, inconsequential, or undertaken with Mr. Stearns' express or implied permission.

I agree with Mr. Stearns that Indian Brook Road is not a town way. I disagree that the Rissos' riding was sporadic, secretive, or inconsequential. It began at least as early as 1987, and was open and obvious. But I fully agree, and so find, that all of the Rissos' riding over Mr. Stearns' land, East and West, was permissive. That permission, in part, was express (a verbal acknowledgement at one point) but, in material, determinative part, was implied in accordance with the common understanding and conduct of the bog owners, discussed at length above, that mutual permission for these types of uses of each other's land always existed, at least until expressly revoked.

Between 2004 and 2006 the Rissos' horse-riding activities increased due to their installation of a large indoor riding arena and addition of over twenty more horse stalls. This increased the number of riders coming onto Mr. Stearns' property. Mr. Stearns' posting of "No Horse Riders Allowed" signs on both the West Property and the East Property in 2006 was his reminder to the Rissos that their use was permissive, and that he retained the right to revoke that permission at any time.


For the foregoing reasons, I find and rule that neither Mr. Stearns nor any of his predecessors in title have, or ever had, a prescriptive easement over any portion of the Risso Route. Accordingly, Mr. Stearns' claims are DISMISSED, WITH PREJUDICE. I further find and rule that the Rissos do not have, and never had, a prescriptive or other right to ride over any portion of Mr. Stearns' land. Their counterclaims are thus also DISMISSED, WITH PREJUDICE.

Judgment shall enter accordingly.



[Note 1] Exhibit 1 shows the east-west cart path extending to Lot 4. According to the trial testimony, this is no longer the case. Lot 4 formerly had an express easement to use the cart path for access, but it was extinguished when Lot 4 was combined with lots to its north and its access came from that direction. See Trial Tr. at 3-196.

[Note 2] The land presently owned by Mr. Stearns is composed of Lots 5A, 6A, 6B, 10, 11, 12, 14, and 15. See Ex. 1. The past ownership of these lots is discussed in more detail below.

[Note 3] In particular, they challenge the continuity of that use.

[Note 4] After trial evidence closed, the Rissos moved to voluntarily dismiss their counterclaim, without prejudice, after Mr. Stearns acknowledged that, in 1987, he had given the Rissos permission to horseback ride over his property. The court denied the Rissos' motion, stating "[t]he motion to dismiss the counterclaim without prejudice, which Mr. Stearns opposes, is DENIED. The trial took place with the counterclaim at issue, both sides presented their evidence on it, and it would be unfair to Mr. Stearns to give the Rissos a second bite on the counterclaim now that th

[Note 5] Exs. 1-3 (from tax map 63) and Ex. 4 (from tax map 70) align with each other as indicated on those maps (the tax map numbers are the numbers in the circles). How they align is easier to see once the "north" arrows on the two maps are oriented so that each points in the same direction and the two maps, so oriented, are laid side by side.

[Note 6] See, e.g., their later letters of April 4, 2006 (Tr. Ex. 29) and October 22, 2014 (Tr. Ex. 30), corroborating their testimony on this.

[Note 7] See AM Properties LLC v. J&W Summit Ave. LLC, 91 Mass. App. Ct. 150 , 158 (2017) (activity must be "significant and continual"). The witnesses spoke of scope, volumes, and periods of use in generalities, and I do not find their memories fully reliable on these issues. The fact, discussed below, that some of the cranberry-bog lots now owned by Mr. Stearns had been taken in the past for non-payment of taxes is strong evidence that the bogs were often uneconomic and thus may have had no farming operations on them for long stretches of time.

[Note 8] See Ex. 1, showing Lot 10's extensive frontage on Old Sandwich Road. Because of their now-common ownership, that frontage is available for access to all of Mr. Stearns' other West Property lots.

[Note 9] Compare Ex. 1 (2003 tax assessor's map) with Ex. 5 (1955 map).

[Note 10] See Ritger v. Parker, 8 Cush. [62 Mass.] 145, 146 (1851) (under common law doctrine of merger, easements are extinguished "by unity of title and possession of the two estates, [the dominant and the servient], in one and the same person at the same time"). "When the dominant and servient estates come into common ownership there is no practical need for the servitude's continued existence, as the owner has ‘the full and unlimited right and power to make any and every possible use of the land.'" Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008), quoting from Ritger, supra at 147.

[Note 11] See Trial Ex. 11.

[Note 12] See Trial Ex. 29 (Letter Risso to Stearns, Apr. 4, 2006) ("This terminates our prior verbal agreement allowing you access to your bogs via a section of our driveway.").

[Note 13] See Trial Ex. 29, referenced in n.12, supra. The dispute at this time was resolved by the parties agreeing to continue their mutual permission, keeping the "standstill" in place. This continued until October 22, 2014 when the Rissos wrote to Mr. Stearns, telling him, "This letter is being sent to you as a curtesy [sic, "courtesy"]. In the past we have allowed you to access your cranberry bog thru [sic, "through"] a locked gate on our driveway. As of November 22, 2014 this access route will no longer be available. The lock will be changed and the key that you were given will no longer work. We are sending you this letter so that you have time to improve your own access road [i.e., the Direct Route] if necessary." Letter, Risso to Stearns (Oct. 22, 2014) (Trial Ex. 30). Mr. Stearns then filed this lawsuit on May 28, 2015.

[Note 14] See Trial Tr. 3-171; Agreed Fact 119.

[Note 15] See, e.g., Mr. Clark and his police officer friends (discussed above); and Trial Tr. 3-153 ("Everybody let everybody do anything they really wanted to out there, as long as they didn't destroy something."). Other evidence of the close relationship between the bog owners includes: Franklin Griswold (the prior owner of the Risso property) was the Stearns' foreman on the Stearns' bogs, and the elder Mr. Stearns considered Mr. Griswold to be his "mentor." Ben Griswold played cards with the elder Mr. Stearns every week up until Mr. Stearns' death. The Griswold children and the Stearns children were high school teammates and longtime friends. They would all hunt, fish and blueberry-pick on eachother's properties, with no one paying the slightest attention to where the property boundaries were. See Trial Tr. 1-183-185; Trial Tr. 2-144, 145; Trial Tr. 2-181; Trial Tr. 3-89-91; Trial Tr. 1-96; Trial Tr. 2-192-193. Mr. Stearns often gave people permission to hunt and pick blueberries on his property (see Trial Tr. 2-181, 182), and there was no evidence that he ever refused it.

[Note 16] See Trial Tr. 3-86 (bog owners shared knowledge, frost nights, machinery, and "depended on each other").

[Note 17] See Trial Tr. 3-86; Trial Tr. 3-89; Trial Tr. 3-155-156 (cooperation between Lang and Risso for the land swap that reconfigured their lot lines to now give each of them frontage on Old Sandwich Road).

[Note 18] See Trial Tr. 3-90, 91.

[Note 19] Claimants may "tack" onto periods of use by their predecessors, so long as there was no interruption of that use and there is privity between them with respect to that use. See AM Properties LLC, 91 Mass. App. Ct. at 157.

[Note 20] See AM Properties LLC, 91 Mass. App. Ct. at 158 (activity must be "significant and continual").

[Note 21] As discussed in the fact section above, there were clearly gaps in cranberry farming-related use on some or all of now-Stearns land. Whether that destroyed the requisite "continuity" before a prescriptive easement accrued, whether it constituted an "abandonment" of an already-accrued easement, and whether, if so, for which lots, are questions I need not and do not reach given my resolution of this case on the basis of permission. Implied permission was given for all of the lots at all relevant times.

[Note 22] See also Sprow v. Boston & A.R. Co., 163 Mass. 330 , 341 (1895) (crucial element of "acquiescence" is that record owner of land either knew, or circumstances were such that he should have known, that claimant's use was adverse).

[Note 23] One of the strongest pieces of evidence that the use of the Risso Route was only permissive, and not under anything that could reasonably be interpreted as a claim of right, was the Stearns' construction of the Direct Route, entirely on their own property, when they wanted to increase the scope and extent of their farming through wet- bogging techniques and equipment. Had they truly believed they had a right to use the Risso Route, they would not have built the Direct Route as there would have been no need to do so. They could simply have improved the Risso Route to the extent necessary. See Glenn, 12 Mass. App. Ct. at 295-296. Other factors showing everyone's recognition that use was permissive, not adverse, included (1) the Rissos' unilateral relocation of the route on their property in 1991, demonstrating their exercise of dominion over it (at that time, pre-M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), fee owners did not have a recognized right unilaterally to change the location of accrued easements), (2) Mr. Stearns (through his lawyer), in response, seeking an express easement to use the Risso Route and then, after not obtaining that easement, acquiescing in the relocation without proceeding with his threatened lawsuit (now that the existence of a dispute over the status of the route was clear, no party truly confident of a prescriptive easement claim would have delayed going forward with a lawsuit at that time, since leaving it to a future date risked the loss of witnesses and, as the evidence in this case showed, the loss of reliable memories), (3) the fact that, over all the decades prior to 1991, no one ever made an explicit claim of a right to use the Risso Route, even verbally, and (4) the Rissos obtaining an express easement over the Risso Route, and then entering into a land swap to acquire its underlying land, to ensure they had rights to it.

[Note 24] See Trial Tr. 2-192, 193.