MISC 17-000678

September 4, 2019

Suffolk, ss.



Plaintiffs Timothy J. Sullivan ("Mr. Sullivan") and Regina M. Sullivan (collectively, "the Sullivans"), the owners of property known as 1-9 Templeton Way, Boston, Massachusetts ("1-9 TW"), brought this action on November 6, 2017 claiming ownership of the fee in Templeton Way ("the Way") and seeking an adjudication that the defendants have no rights in or over the Way. Defendant Home Reconstruction LLC ("HR LLC"), the record owner of property at 12 Mallet Street, Boston, Massachusetts ("12 Mallet Street"), a portion of which abuts the Way (that portion is referred to herein as "Lot C"), answered on January 2, 2018. [Note 1] HR LLC recently constructed two multi-family units its property, and contends that one of these units, designated as 10 Templeton Way by the City of Boston ("10 TW"), has frontage on and the use of the Way.

For the reasons set forth below, this court concludes that the Sullivans own the fee in the Way over its entire length and width as it abuts 1-9 TW and that HR LLC has no rights in or over the Way, having lost its ownership in the fee to the center line of the Way by the Sullivans' adverse possession of the same and having, together with its predecessors in title, abandoned its easement over the Way. Finally, this court concludes that HR LLC failed to establish that the Sullivans' claims were barred by laches.


The Sullivans' complaint asserts two claims: (1) to quiet their claimed title in the Way, and (2) for a declaration that they have exclusive right, title and interest in the Way and that the defendants' rights to use the Way, if they ever existed, have been extinguished. A third count, seeking injunctive relief, is a remedy rather than a claim. Discovery closed on October 26, 2018. At a pre-trial conference on March 26, 2019, the parties agreed that the issues for trial were (1) whether the Sullivans hold title to the fee in the Way, (2) whether HR LLC has any rights over the Way and, if so, whether those rights have been abandoned, (3) whether the Sullivans have proved the elements necessary to quiet title their title, if any, in the Way, [Note 2] and (4) whether the Sullivans' claims are barred by laches.

This court took a view of the Way, 1-9 TW, 10 TW and 12 Mallet Street on July 10, 2019. This matter was tried over one day on July 29, 2019. Mr. Sullivan testified on behalf of the Sullivans. Mr. Timothy O'Callaghan ("Mr. O'Callaghan") testified on behalf of HR LLC.

The parties initially stipulated to 67 agreed exhibits, which were admitted in evidence. During the course of trial, another 11 exhibits were admitted.


Based on the pleadings, the view, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent that either witness testified otherwise, I do not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Parties

1. The Sullivans are the owners of 1-9 TW by virtue of a deed dated January 31, 1985 to them from Philip B. Monaghan, Trustee of Monaghan Realty Trust, and recorded at the Suffolk County Registry of Deeds ("the Registry") at Book 11383, Page 099. Ex. 46.

2. HR LLC is the owner of 12 Mallet Street by virtue of a deed to it from Be Thi Pham, Trustee of 12 Mallet Street Realty Trust, dated October 8, 2014 and recorded in the Registry at Book 53583, Book 246, and a confirmatory deed between the same parties dated November 10, 2017 and recorded in the Registry at Book 58839, Page 84, which confirmatory deed "expand[ed] the address of the property to include the street address of 10 Templeton Way, Dorchester, MA." Exs. 63-64.

The Early Plans

3. The Way first appears in this record on a plan entitled "Plan of Land in Dorchester belonging to W. P. E. Paine et al. Boston Oct. 11th 1897. Scale 30 feet = 1 inch Chas. F. Baxter Civil Engineer" recorded at Plan Book 2476, Page 625 ("the 1897 Plan"), and is therein labeled as "Court." Ex. 1.

4. The 1897 Plan was subsequently revised by a plan entitled "Revised Plan of Land in Dorchester belonging to W. P. E. Paine et al. Boston Oct. 27th 1897 Scale 30 feet = 1 inch Chas. F. Baxter Civil Engineer," recorded at Plan Book 2486: End ("the Revised 1897 Plan"). Ex. 2.

5. The Revised 1897 Plan depicts 1-9 TW (designated on the 1897 Plan as Lot E), although not yet divided in to nine lots, and a portion of what is now 12 Mallet Street

(designated on the 1897 Plan as Lot C), as abutting the Way, which is again labeled as "Court."

6. The Revised 1897 Plan further depicts the Way as abutting on its east for 142.1 feet the land of one Margaret Barstow before reaching the land shown as Lot C, which abuts the Way for another 49.16 feet. Ex. 4.

7. A new plan entitled "Nov. 9, 1898 Scale 20 Ft. to an inch. Frank A. Foster, C.E. 34 School St. Room 43" and recorded at Plan Book 2624, Page 65 ("the 1898 Plan") slightly modified the width of the Way as it abuts 1-9 TW and 10 TW and subdivided 1-9 TW into the nine lots that exist today. Ex. 5.

Title To 1-9 TW

8. Lot E on the 1897 Plan was conveyed by William P.E. Paine to Isola Call by deed dated October 15, 1897 and recorded at Book 2476, Page 625, which deed references the 1897 Plan and describes lot E as bounding easterly on the "Court" for forty feet and then southerly on the "Court" for 181.29 feet to Templeton Street. Ex. 3.

9. After the 1898 Plan was created, in which Lot E was subdivided into nine lots, Isola Call deeded out the lots to various grantees, all conveyances described with reference to a passageway called Templeton Way and all with reference to the 1898 Plan (November 18, 1899 deed to Marianna Paine of lots 6-9, Ex. 5; March 17, 1900 deed to Marianna Paine of lots 4-5, Ex. 6; October 6, 1900 deed to Marianna Paine of lot 3, Ex. 7; April 23, 1901 deed to Benjamin J. Remick of lot 1, Ex. 8; and April 23, 1901 deed to Benjamin J. Remick of lot 2, Ex. 8).

10. The 1900 deed of lot 3 is the first to contain an express grant of a right over the Way: "together with the right to use said passageway in common with the other abutters thereon for all lawful purposes, said passageway to remain forever open and unobstructed." Ex. 7.

11. Similar language appears in the 1901 deeds of lots 1 and 2. Ex. 8.

12. From Isola Call's first deed out of lots 6-9 in 1899, lots 1 through 9 as shown on the 1898 Plan were not in common ownership until 1955, when one John F. Leary obtained title to all nine lots by deeds from Mary R. O'Halloran dated October 25, 1954 of lots 1 and 2, Ex. 36; from Olive J. Clough dated June 1, 1955 of her interest in lots 3 through 9, Ex. 37; and from Matthew J. Thoemmel dated June 1, 1955 of his interest in lots 3 through 9, Ex. 38.

13. All three of the deeds in to Mr. Leary describe the properties conveyed therein as bounding on the Way.

14. The deed from Mary R. O'Halloran describes lots 1 and 2 as bounding easterly "by Templeton Way, a private passageway ... [t]ogether with the right to use said passageway in common with the other abuttors thereon for all lawful purposes. Said passageway is to remain forever open and unobstructed." Ex. 36.

15. The deeds from Olive J. Clough and from Matthew J. Thoemmel state that "[s]aid premises are conveyed with the right appurtenant to each of said lots to use said passageway in common with the other abuttors thereon for all lawful purposes; said passageway to remain forever open and unobstructed." Exs. 37-38.

16. The deed into each subsequent owner of lots 1 through 9, including the Sullivans, describes the lots as bounding on the Way and includes the language "[s]aid premises are conveyed with the right appurtenant to each of said lots to use said passageway in common with the other abuttors thereon for all lawful purposes. Said passageway to remain forever open and unobstructed." Exs. 39-46. [Note 3]

Title to Lot C

17. Lot C is shown on the 1897 Plan, the Revised 1897 Plan and the 1898 Plan as containing 2,445 square feet and bounding on the west by the "Court" for 49.16 feet, on the north by land formerly of Paine or of McDow for 50 feet, on the east by land of Paine for 48.85 feet, and on the south by land of Margaret Barstow for 49.83 feet. Exs. 1-2, 4.

18. Lot C was conveyed by William P.E. Paine to Isola Call by deed dated October 15, 1897 and recorded at Book 2476, Page 625, which deed referenced the 1897 Plan and described lot C by a line that runs westerly "to said Court ten feet wide, thence turning the line runs southerly forty-nine and 16/100 feet to point of beginning." Ex. 3.

19. By deed dated October 6, 1900 and recorded at Book 2710, Page 389, Isola Call deeded Lot C as shown on the 1898 Plan to Mariana Paine, described Lot C as bounding on Templeton Way and included "the right to use said passageway in common with all the other abuttors thereon for all lawful purposes, said passageway to remain forever open and unobstructed." Ex. 56.

20. By deed dated February 3, 1906 and recorded at Book 3103, Page 340, Mariana Paine and her husband, William P.E. Paine, deeded Lot C as shown on the 1898 Plan to Abbie F. Pease, described the land so conveyed was bounding on Templeton Way and included the same express grant of a right over the Way. Ex. 57.

21. Subsequent conveyances from Abbie F. Pease to Harold T. Paine by deed dated July 29, 1910, Ex. 58, and from Harold T. Paine to Henry F. Lewis by deed dated September 8, 1919, Ex. 59, contain the same or substantially the same language with respect to Lot C.

22. Henry F. Lewis had a new plan prepared, entitled "Map of Land on Mallet and Adams Street Dorchester Mass. Belonging to Henry F. Lewis Scale 1"=20' Sept. 15 - 1919 David A. Ambrose Engineer" ("the 1919 Plan"). Ex. 52.

23. On the 1919 Plan, Lot C and its 2,445 square feet have been subsumed into a larger Lot 2 containing 11,530 square feet and having 60 feet of frontage on Mallet Street and 53.88 square feet of frontage on the Way ("Lot 2"). Ex. 52.

24. Prior to its combination with Lot C, the additional land used to create Lot 2 as shown on the 1919 Plan did not abut the Way. Ex. 52.

25. By deed dated August 14, 1920 and recorded at Book 4250, Page 301, Henry F. Lewis deeded Lot 2 on the 1919 Plan to Alfred S. Conant and described that lot as bounding westerly in part "by Templeton Way." Ex. 60.

26. The 1920 deed to Alfred S. Conant is silent as to any rights over the Way.

27. The record before the court is silent as to any conveyances of Lot 2 between 1920 and 1962, when Lot 2 was conveyed by deed dated July 27, 1962 and recorded at book 7669, Page 79, from Frank D. Micciantuono and Alice F. Micciantuono to Alice F. Micciantuono with reference to the 1919 Plan and bounding on Templeton Way, but silent as to any rights over the Way. Ex. 61.

28. By deed dated June 18, 2014 and recorded at book 53391, Page 33, the heirs of Alice F. Miccantuono deeded Lot 2 to Be Thi Pham, described by Mr. O'Callaghan as the wife of Vu Cuong, the principal of HR LLC, the deed again referencing the 1919 Plan and describing the lot as bounding in part of Templeton Way, but again silent as to any rights over the Way. Ex. 62.

29. As referenced above, Be Thi Pham deeded Lot 2 to HR LLC by deed dated October 8, 2014 and by confirmatory deed dated November 10, 2017. Exs. 63-64.

The Use Of The Way Since 1985

30. Mr. Sullivan testified that, when he and his wife purchased 1-9 TW, the property consisted of nine row houses with three units in each, and with each row house having a separate entrance directly onto the Way. Ex. 47J. [Note 4]

31. Mr. Sullivan described 1-9 TW as being then in total disrepair with some, but not all, of the units rented.

32. At the time of the Sullivans' acquisition of 1-9 TW there was a fence that separated 1- 9 TW and the Way from all the abutting properties, including Lot 2.

33. Photographs of the current fence were admitted as Exs. 47A, 47B, 47D, 47E, 47G, 47H, 47I, 47K, 47L, 47M, 47N, 47O, and 47DD.

34. Both Mr. Sullivan and Mr. O'Callaghan testified that Carl Micciantuono installed the fence between Lot 2 and the Way.

35. According to Mr. O'Callaghan, Mr. Micciantuono installed the fence in order to stop trespassers from entering onto his property and to protect his plumbing equipment.

36. Both Mr. Sullivan and Mr. O'Callaghan testified that there was no gate or other opening that would allow passage between Lot 2 and the Way.

37. Both Mr. Sullivan and Mr. O'Callaghan testified that the fence as it abutted Lot 2 came down and was replaced by Mr. Sullivan.

38. A photograph of the fence before it was replaced was introduced as Ex. 48, p.1, and was described by Mr. Sullivan as being 10' high and 50' long.

39. According to Mr. Sullivan, the original fence installed by Mr. Micciantuono, which had been there since the Sullivans' acquisition of 1-9 TW in 1985, was knocked over by a storm in March, 2018.

40. Mr. Sullivan replaced the original fence with a new fence, shown in Ex. 47G, some six to eight weeks after the original fence was knocked over.

41. According to Mr. O'Callaghan, HR LLC did not object to Mr. Sullivan's doing so because HR LLC was awaiting the results of this litigation and did not want to commit a breach of the peace.

42. Mr. Sullivan also testified that he has exclusively maintained the Way since acquiring 1-9 TW.

Public Use Of The Way

43. The sign at the entrance to the Way as it abuts Templeton Street, a photograph of which was marked as Ex. 47C, says "Templeton Way Pvt Way."

44. According to Mr. Sullivan, he was at 1-9 TW almost every day between 1985 and 2014.

45. Mr. Sullivan further testified that he has never seen anyone but his tenants using the Way and, more particularly, he has not seen the general public use the Way.

46. The Way dead ends at the fence at the rear of the Way, shown in Ex. 47K, and does not lead to any other streets or roads.

47. There are two street lights on the Way that are maintained by the City of Boston, located at 3 TW, Ex. 68, and 8 TW, Ex. 69).

48. The City of Boston changed the lights to LED lighting at some point.

49. The source of power, telephone and cable wire to 10 TW is from a pole on the boundary of the Way on the other side of the fence from 10 TW.

50. In addition, HR LLC offered the City of Boston's "Record of Streets" by the "Street Laying-Out Department" for 1902, 1906 and 1910 (Exs. 72-74), "Boston's Streets" by the Public Works Department for 1963 and 1999 (Exs. 75-76), which were admitted for the limited purpose of showing how the Way was treated by the City of Boston, and not for the truth of that matter.

The History of HR LLC's Involvement With Lot 2

51. Mr. O'Callaghan testified on behalf of HR LLC.

52. While Mr. O'Callaghan is not an owner or member of HR LLC, has no ownership interest in that entity, and was not engaged as a contractor with respect to this project, he and the owner, Vu Cuong, are best friends, have worked together for decades, and he collaborated with Mr. Vu on the acquisition of Lot 2.

53. Mr. O'Callaghan and Mr. Vu went to Lot 2 before Mr. Vu's wife purchased the property in 2014.

54. The fence along the Way was there at the time of their visit and there was no mechanism for getting through the fence.

55. Mr. O'Callaghan and Mr. Vu did not know how long the fence had been there, but they did not consider the fence to be a problem.

56. According to Mr. O'Callaghan, he would not have recommended that Mr. Vu purchase Lot 2 for $300,000 if Mr. Vu could only build one house on that Lot, and he went to the City of Boston archives and the assessing department to determine whether a second structure could be constructed.

57. At some point (Mr. O'Callaghan did not know if it was before or after Lot 2 was purchased), Mr. O'Callaghan completed the paperwork with the City of Boston Inspectional Services Department necessary to designate that portion of Lot 2 abutting the Way as "10 Templeton Way."

58. Mr. O'Callaghan testified that HR LLC originally planned to retain the original house on Lot 2 and construct one additional house, but then decided to raze the original house and build two new houses on Lot 2.

59. The building permit as originally issued was for the construction of one single family residence, and so had to be amended for that reason as well.

60. The building permit was amended and construction then started under the new permit, although the record is silent as to when the permit was amended or when construction commenced under the new permit.

61. A plot plan, still showing the existing 12 Mallet Street dwelling as well as the "proposed 10 Templeton Way" dwelling, now a proposed two family dwelling, is dated December 6, 2016 ("2016 Plot Plan"). Ex. 67.

62. According to Mr. Sullivan, he was not notified when HR LLC obtained a building permit for Lot 2 (the original building permit for a single family residence was issued on December 22, 2014, Ex. 71, and, according to Mr. O'Callaghan, subsequently amended to reflect construction of a multi-family residence) and first learned of HR LLC's proposed construction two years and 10 months prior to his testimony (i.e. May, 2016).

63. Mr. O'Callaghan testified that there were no public hearing with respect to HR LLC's project because no zoning relief was required.

64. Mr. O'Callaghan further testified that HR LLC represented that Lot 2 had frontage on the Way, and that Mr. O'Callaghan believed it to be open to public travel because it had a hard surface.

65. Mr. O'Callaghan further testified that no one from the City of Boston came out to inspect Lot 2 and that the existence of a fence between Lot 2 and the Way was not raised with the City.

66. According to Mr. O'Callaghan, he was of the view that Mr. Vu could take the fence down because it was "their fence," i.e. constructed by their predecessor in title.

67. Mr. Sullivan also testified credibly that the foundation for 10 TW was not installed until August or September, 2016, when a hole was dug and a foundation was poured.

68. It was only when Mr. Sullivan saw the foundation going in with a garage underneath it that he went and spoke to the construction supervisor at 10 TW, who told him that vehicles from 10 TW would be going over the Way, to which Mr. Sullivan responded, "We'll see about that."

69. By letter dated November 4, 2016, Ex. 50, Mr. Sullivan notified HR LLC and its legal counsel that HR LLC had no rights over the Way and were forbidden to enter upon the Way. Ex. 50. [Note 5]

70. According to Mr. O'Callaghan, a lawyer for the Sullivans contacted HR LLC at some time "well before" this action was commenced on November 6, 2017, requesting that HR LLC to relinquish any rights it might have over the Way.

71. At that point, Mr. O'Callaghan began further research at various City of Boston archives at City Hall, including the City engineering department


The Fee In The Way

The Sullivans and HR LLC both derive their titles (the Sullivans as to Lot E, now Lots 1 through 9, and HR LLC as to Lot C, now part of Lot 2) from the October 15, 1897 deed from William P.E. Paine to Isola Call, which deed references the 1897 Plan. Ex. 3. Title to the Way as it abuts those lots is governed by the derelict fee statute, G. L. c. 183, §58, which states in pertinent part:

Every instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . unless (a) the grantor retains other real estate abutting such way, . . . in which case, . . . (ii) if the retained real estate is on the other side of such way . . . the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.

The statute was intended "to meet a situation where a grantor has conveyed away all of his land abutting a way or stream, but has unknowingly failed to convey any interest he may have in land under the way or stream, thus apparently retaining his ownership of a strip of the way or stream." Rowley v. Mass. Elec. Co., 438 Mass. 798 , 803 (2003), quoting 1971 House Doc. No. 5307. "Its effect was to quiet title to sundry narrow strips of land that formed the boundaries of other tracts, by establishing 'an authoritative rule of construction for all instruments passing title to real estate abutting a way.'" Id., quoting Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242 (1992). The statute applies retroactively unless the land is registered or "to the extent that any person or his predecessor in title has changed his position as a result of a decision of a court of competent jurisdiction." Knapp v. Powicki, 90 Mass. App. Ct. 1107 (2016) (Rule 1:28 Opinion), quoting G.L. c. 183, § 58, as appearing in St. 1990, c. 378, § 2. Accordingly, the statute applies here.

The October 15, 1897 deed does not make any express exception or reservation with respect to the fee in the Way. As a result, the fee in the entire width of the Way for its first 142.1 feet passed with the deed of Lot E, as the grantor, William P.E. Paine, did not own the real estate on the other side of that portion of the Way. The remaining 49.16 of the Way was bounded by Lot E on one side, and Lot C on the other; accordingly, Lot E and Lot C each took the fee to the center line of the Way for that portion.

As far as Lot C is concerned, that conclusion does not end the inquiry. The Sullivans also claim ownership of the fee in the entire length of the Way by adverse possession. To succeed in that claim, the Sullivans must prove "non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years." Kendall v. Selvaggio, 413 Mass. 619 , 621- 622 (1992), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964). "The nature and the extent of the occupancy required to establish a right by adverse possession vary with the character of the land, the purposes to which it is adopted, and the uses to which it is put." Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961), quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938).

Here, the Way is a 12.58 foot wide way covered by bituminous concrete directly abutted to the east by fencing (chain link and stockade) and to the west by the brick building that is 1-9 TW. The evidence from Mr. Sullivan was to the effect that he and his tenants use the Way for access to the 27 rental units abutting the Way, that only he and his tenants have used the Way, that there are two sheds in the back of 1-9 TW that are accessed over the Way (see Ex. 47L), and that only he has maintained the Way, including snow plowing in the winter. In addition, the fence between the Way and Lot 2, which has been in continuous existence since at least 1985, has prevented use by HR LLC and its predecessors. See Brandao v. Docanto, 80 Mass. App. Ct. 151 , 157 (2011) ("[I]t matters not who erected the fence. The fence stood in the same location for at least twenty-four years and, as the judge noted, 'was, of course, open and obvious to all as long as it stood.'"). [Note 6] The evidence is sufficient to establish the Sullivans' ownership of the fee in the Way abutting Lot C to the center line by more than twenty years of actual, open, notorious, exclusive and adverse use.

The Effect Of The 1919 Plan On HR LLC's Easement Rights

In addition to the fee in the Way, the owners from time to time of Lot E and Lot C also obtained an easement over the Way for its entire length as shown on the 1897 Plan. See Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 968 (1987) ("As a general rule, the title of persons who acquire land bounded by a street or way runs to the center line of the way, G. L. c. 183, §58, and carries with it the right to use the way along its entire length."), and cases cited. [Note 7]

As recently reaffirmed by the Supreme Judicial Court in Taylor v. Martha's Vineyard Land Bank Commission, 475 Mass. 682 , 686 (2016), quoting Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-679 (1965), "a 'right of way appurtenant to [a particular piece of] land ... cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.'" Here, that means that the right to use the Way is appurtenant only to what was Lot C, and not to the rest of Lot 2.

A comparison on the 1897 Plan and the 1919 Plan reveals that Lot 2 extends beyond the Way by 4.72 feet further than Lot C. A review of the 2016 Plot Plan reveals that the proposed two-family residence to be constructed at 10 TW extends back from side line of the Way approximately 60 feet, exceeding the easterly line of Lot C - thereby passing onto after-acquired land - by some 10 feet, raising a significant question as to whether an easement over the Way can be used to access that dwelling without overloading the easement. However, there is no "as built" plan in the record that would establish whether the structure constructed by HR LLC is wholly within the boundaries of Lot C. The burden of proof is on HR LLC to establish the existence and extent of its easement rights, a burden that it has failed to carry here. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 n.1 (2006) ("'The [party] asserting the easement . . . [has] the burden of proving its existence.' ... This burden includes 'the burden of proving the nature and extent of any such easement.'" (internal citations omitted)). Nevertheless, the court will assume for purposes of the remainder of this decision that HR LLC established that the structure it built at 10 TW is located entirely within the boundaries of the original Lot C.

The Effect Of The Fence On HR LLC's Easement Rights

In Cater v. Bednarek, 462 Mass. 523 , 528 n.15 (2012), the Supreme Judicial Court cited approvingly to §7.4 of the Restatement, entitled "Modification or Extinguishment by Abandonment." That section states: "A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the rights created by a servitude." Restatement of Property (Servitudes) Third, § 7.4 (2000). As stated by the Cater court, "[a]bandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." 462 Mass. at 528 n. 15. The necessary showing has also been described as proof of "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." First National Bank v. Konner, 373 Mass. 463 , 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927).

The issue is one of intent. Desotell v. Szczgiel, 338 Mass. 153 , 158 (1958) ("[W]hether there is an abandonment is a question of intention."); Delconte v. Salloum, 336 Mass. 184 , 188 (1957), quoting Les v. Alibozek, 269 Mass. 153 , 158-159 ("Whether there is an abandonment is ordinarily a question of intention."). And that intent is to be "ascertained from the surrounding circumstances and the conduct of the parties." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). See Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965) (noting that abandonment "can be shown by acts indicating an intention never again to make use of the easement in question"). "Any deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment." Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n.2 (2004).

Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate. See, e.g., Cater, 462 Mass. at 528 n. 15, quoting Desotell, 338 Mass. at 159 ("[N]onuse of itself, no matter how long continued, will not work an abandonment."); Sindler, 348 Mass. at 593, quoting Desotell, 338 Mass. at 159 ("[A]bandonment of an easement could not be shown merely from nonuse by the dominant owner for many years 'coupled with their failure to clear the right of way of its natural cover of trees and brush'...."); Delconte, 336 Mass. at 188 ("Nonuse does not of itself produce an abandonment no matter how long continued."). "However, an extended period of nonuse is a factor to consider in determining whether an easement has been abandoned." Casey v. LaCourt Family LLC, 90 Mass. App. Ct. 1103 (2016) (Rule 1:28 Opinion).

The owner of the servient estate carries a heavy burden of proof to establish abandonment; however, "that rigorous standard is not insurmountable." Proulx, 60 Mass. App. Ct. at 704 n.2, and cases cited. For example, in Casey, supra, the Appeals Court found that the Roman Catholic Archdiocese of Boston, the defendant's predecessor in title, had abandoned its easement over an abutting way:

The conclusion that the Archdiocese abandoned its easement over [the way] is compelled from the Archdiocese's prolonged lack of use, the maintenance of successive fences blocking access, the blocking of the way by the plaintiffs' parking of their cars on the way, the Archdiocese's failure to object to the plaintiffs' regular parking along the way, and the Archdiocese's lack of contribution to maintaining the way.

90 Mass. App. Ct. 1103 . Similarly, in Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 384 (1992), the Appeals Court found that one of the plaintiffs, one Iodice, the owner of a large parcel consisting of a 126-unit garden apartment complex, had abandoned his easement over an abutting way based on Iodice's nonuse over a long period of time, his acquiescence to the use of the way made by others, and Iodice's construction of a fence separating his property from the disputed portion of the way in 1968 that remained in place as of the time of the Appeals Court's decision. Id. at 390-391.

The same result obtains here. The evidence at trial was to the effect that HR LLC's predecessor in title constructed a fence between Lot 2 and the Way more than 34 years ago; that the fence was in existence when the Sullivans purchased 1-9 TW in 1985; that it was 10 feet tall by 50 feet long, with no opening onto the Way; and that, with the exception of one six to eight week period after the original fence was knocked down in a storm in March, 2018, a fence has existed in that location to the present date. There was no evidence of any use of the Way by HR LLC or any of its predecessors in title at any time. Instead, according to Mr. Sullivan, in his thirty-four years of ownership of 1-9 TW, he has never seen anyone use the Way except his tenants. Finally, the merger of Lot C into the larger Lot 2 indicates, to the extent that any further proof is required, that HR LLC's predecessors abandoned the easement over the Way appurtenant to Lot C. [Note 8]

Public Rights Over The Way

HR LLC also claims the right to use the way based on rights vested in the general public. As noted by the Appeals Court in 150 Main St. LLC v. Martino, 89 Mass. App. Ct. 1106 (2016) (Rule 1:28 Opinion), citing Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979), "an easement for a way over private land, not established as a public way, is a private way." A public way, on the other hand, is established in one of three ways: "(1) a laying out by public authority in the manner prescribed by statute (see G. L. c . 82, §§ 1-32); (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal (see Longley v. Worcester, 304 Mass. at 587-589; Uliasz v. Gillette, 357 at 104) coupled with an express or implied acceptance by the public." Fenn, 7 Mass. App. Ct. at 83-84. Here, HR LLC offered no evidence of laying out by public authority or of dedication prior to 1846. Its claim to the benefit of a public right over the way must, therefore, rest on prescription.

"[T]he creation of a public way by adverse use depends on a showing of 'actual public use, general, uninterrupted, continued for [the prescriptive period].'" Id. at 84, quoting Jennings v. Tisbury, 5 Gray 73 , 74 (1855). See Commonwealth v. Coupe, 128 Mass. 63 , 65; White v. Boston Gear Works, Inc., 315 Mass. 496 , 499 (1944). "It is sometimes said that to establish such adverse use 'the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from the rightful use by those who have permissive right to travel over the private way." Fenn, 7 Mass. App. Ct. at 84, quoting Bullukian v. Franklin, 248 Mass. 151 , 155 (1924). Here, there is no evidence of use by members of the public, only by Mr. Sullivan and his tenants. The Way dead-ends at the rear of 1-9 TW and does not connect to any public way. The street sign at the corner of the Way and Templeton Street states that the Way is a private way. HR LLC did offer evidence regarding two utility poles abutting the Way at 3 and 8 Templeton Way, located in the City of Boston's database, one of which is apparently the source of utilities to the dwelling at 10 TW. HR LLC also offered evidence the inclusion of the Way in various City of Boston street guides. Notably, the 1902 street guide does not list the Way at all, the 1906 and 1910 street guides list the Way but do not designate it as being "in the opinion of the Street Commissioners" public in part, the 1963 compilation indicates that the Way is a public way or a "private way open to public travel" with the caveat that "due to the possibility of typographical error, indefinite or incomplete street records, this book should be used for general information only," and the 1999 compilation indicates that the Way is a private way open to public travel. Exs. 72- 76.

HR LLC's limited showing was insufficient to establish a public right over the Way by prescription. See Gower v. Saugus, 315 Mass. 677 , 683 (1944) ("We do not think that the evidence as to water and light has any substantial force as an admission that the whole length of the nine hundred foot way ... had become public."); Holbrook v. Town of Hopkinton, 91 Mass. App. Ct. 1128 (2017) (Rule 1:28 Opinion) ("[T]he temporary including of Rice Street as a way for purposes of State funding for some period of years did not mean that Rice Street had acquired public way status by prescription as a matter of law."); Lynch v. Groton, 11 Mass. App. Ct. 1008 (1981) (upholding ruling that plaintiff had failed to establish a public way through prescription, stating, "The fact that the town listed the road as a public way on its annual estimate to the Commonwealth for assistance under G. L. c. 81 does not cure the deficiencies in the plaintiff's case.").


Finally, HR LLC asserts the defense of laches to the Sullivans' claims. "Laches is an unjustified, unreasonable, and prejudicial delay in raising a claim ..... Laches is not mere delay but delay that works disadvantage to another." Cornell v. Michaud, 79 Mass. App. Ct. 607 , 615 (2011), quoting Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522 , 531 (2008); accord Myers v. Salin, 13 Mass. App. Ct. 127 , 138 (1982) ("To establish the defense there must be proof that the delay worked some prejudice or disadvantage to the defendant."). Laches is an affirmative defense on which the proponent carries the burden of proof. Id. at 137. That last point is of particular relevance here.

In order to measure delay, there must first be proof of notice, actual or constructive, to the plaintiff. Colony of Wellfleet, 71 Mass. App. Ct. at 531, quoting Moseley v. Briggs Realty Co., 320 Mass. 278 , 284 (1946) ("[T]here can be no laches where 'there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts.'"); see Chiuccariello v. Building Comm'rs of Boston, 29 Mass. App. Ct. 482 , 487 (1990) (measuring delay from date when plaintiffs had actual knowledge); Myers, 13 Mass. App. Ct. at 140 (delay measured from date when plaintiffs knew or should have known that defendants were going ahead with significant expenditures). Here, there was no public hearing with respect to the project, of which the Sullivans would presumably have received notice as abutters, because no zoning relief was required. Nor did the Sullivans receive notice when a building permit issued. Mr. Sullivan testified that he first became aware of the project in May, 2016, but did not become aware that HR LLC intended to use the Way as access until August or September, 2016 when the foundation was dug and poured. Thereafter, Mr. Sullivan notified HR LLC by letter dated November 4, 2016 that HR LLC had no rights over the way and was forbidden to enter upon it. This lawsuit followed one year later, in November, 2017.

Completely absent from the record is any evidence of what HR LLC did with respect to construction at 10 TW between August-September, 2016 and November, 2017. [Note 9] The 2016 Plot Plan showing only one new dwelling, not the two that were actually constructed, is dated December 6, 2016. The building permit, as amended to reflect the construction of a multi-family dwelling, is not in the record. There was no testimony as to the status of construction as of November, 2017, when this action was filed. On this record, HR LLC has failed to prove that the Sullivans unreasonably delayed in asserting their claims to its prejudice.


For the foregoing reasons, judgment shall enter dismissing Count I of the complaint with prejudice. On Count II of the complaint, judgment shall enter declaring that the Sullivans are the owners of the fee in the Way and that the defendant's right to use the Way, if it ever existed, has been extinguished.



[Note 1] None of the remaining defendants, for all of whom returns of service were filed with the court, answered the complaint or otherwise participated in this action. Defaults were entered as to them pursuant to Mass. R. Civ. P. 55(a) on March 22, 2019.

[Note 2] The court treats the quiet title claim as waived. Plaintiffs did not actively pursue it, did not follow the procedures set forth by statute, G. L. c. 240, § 6 et seq. to obtain an adjudication of their rights over the way in rem, and would not have been successful in any event in view of their lack of record title to that portion of the Way abutting HR LLC's parcel. See Bevilacqua v. Rodrguez, 460 Mass. 762 , 767 n. 5 (2011).

[Note 3] The punctuation in that section of Mr. Leary's deed conveying lots 3 through 9, Ex. 39, is slightly different.

[Note 4] The court notes that, while not relevant to its analysis herein, Mr. Sullivan testified as to his safety concerns about routine vehicular access on the Way. Given the width of the Way and the direct access onto the Way by foot from the entranceways to the nine three-unit dwellings on 1-9 TW, those concerns are well-founded.

[Note 5] While Mr. O'Callaghan testified that he had not seen the letter marked as Ex. 50 before, it was admitted as an agreed exhibit by the parties without limitation.

[Note 6] For other cases where owners have lost land to adverse possessors by virtue of an improvidently placed fence, see Wood v. Quinn, 328 Mass. 118 , 119 (1951); Masciocchi v. Utenis, 73 Mass. App. Ct. 1121 (2009) (Rule 1:28 Opinion); Fleury v. Moir, 15 LCR 506 , 507, 509 (2007) (Piper, J.); Queenan v. Marchionne, 27 Mass. L. Rep. 427, 2010 Mass. Super. LEXIS 255 at *9, 14. (2010).

[Note 7] The easement was made express in deeds from Isola Call of Lot C and Lots 1, 2 and 3. However, by the time of those deeds, she had already deeded Lots 4 through 9 (and the fee in the Way adjacent to them, by virtue of the derelict fee statute) and so no longer had the ability to grant express rights over the portion of the Way abutting those lots. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 292 (2005) ("[O]ne may not grant what one does not own.").

[Note 8] That the Sullivans and HR LLC had easement rights over the Way that, in the case of HR LLC, were extinguished, bears on the Sullivans' claim to have adversely possessed that part of the Way, addressed supra. An easement holder can adversely possess the underlying fee if "it appear[s] from evidence inconsistent with the possession of an easement that he [is] claiming the title in fee," as opposed to "possession ... equally consistent with the right of an easement." Ansin v. Taylor, 262 Mass. 159 , 165 (1928). While that proof was less than robust here, the alternative is to leave HR LLC with what can best be described as a barren fee in that portion of the Way abutting Lot C to the center line: HR LLC has no easement rights over the rest of the Way that would allow it to use the fee for alternative access to its property and the Sullivans would continue to have an easement over that portion of the Way, preventing any use by HR LLC inconsistent with the Sullivans' easement.

[Note 9] Mr. O'Callaghan did testify to efforts during this period to further research, through various City of Boston archives, whatever rights Lot 2 might have over the Way.