Introduction
Plaintiff Virginia Rice Roscioli and her cousin and co-plaintiff Barbara Rice own lakefront homes on a dead-end private way in Sturbridge known as Big Alum Road, Ms. Roscioli at #273-#274 and Ms. Rice at #280. See Ex. 1 (attached). [Note 2] The way dead-ends just past the plaintiffs' houses at a home owned by defendants Joel and Christine Casaubon (#286). This case is about the use of that way in the section, owned by the plaintiffs, that cuts through their land.
The defendants and intervenor-defendants fall into two categories: (1) those with express easements to use the way where it crosses the plaintiffs' land (the Casaubons' express easement for access to their house at #286, and the Town's express easements for fire access and the installation and maintenance of the municipal sewer line that runs underneath the way), [Note 3] and (2) a number of individuals with homes around the lake who claim prescriptive rights to use the way for recreational purposes (walking, jogging, and bicycling) (hereafter, the "lake homeowners").
The Casaubons' and the Town's express easements are not in dispute. All of the prescriptive claims are denied.
The roadway through the plaintiffs' properties is narrow (single lane, 8'-10' wide at best) with only a gravel and dirt surface, and is bordered by dense woods. Until the town dug it up in connection with its 2002-2005 installation of the municipal sewer line around the perimeter of the lake and widened the way for sewer maintenance purposes at that time, the way was an even narrower one-lane dirt track, grass down the middle, where the plaintiffs and their family members dug worms for bait. Indeed, the section on the plaintiffs' land was so private that Ms. Roscioli interred the ashes of her father and stepmother near the side of the way and put a marker there. [Note 4]
Big Alum Road in its entirety serves only a handful of dwellings and, as noted above, dead-ends just past the plaintiffs' properties at the Casaubon house. It is prominently marked "Dead End" and "Private Way." The paved part ends and the roadway sharply narrows just before Ms. Roscioli's house and, from that point and beyond, looks exactly like what it is: a narrow private driveway to the three remaining houses, (Roscioli, Rice, and Casaubon), with no lighting or pavement, and only a gravel and dirt surface. The difference between the two parts of the roadway - the paved section that ends at Ms. Roscioli's property line and the "driveway" section after that point - is obvious when seen on the ground.
Because the way runs through a dense wood as it cuts through the plaintiffs' land and has curves that restrict its sightlines, its privacy and security are of great importance to the plaintiffs. [Note 5]
This is not an abstract concern. Ms. Roscioli's home has been vandalized on several occasions, most notably after the controversy that gave rise to this lawsuit began.
Roadways of this nature don't usually prompt lawsuits, much less one with 224 parties. The way is a dead-end, so the only vehicles using it in the section that crosses the plaintiffs' land are those going to the Roscioli, Rice and Casaubon homes. Other than to get to those homes, this section of the way is not necessary for access to anything, either by vehicle or on foot. There is nothing in particular beyond the point where it dead-ends - no beach, no school, and no shopping area, for example - and certainly nothing that can't readily and easily be reached by alternate routes. Any recreational use is purely one of preference. Runners, joggers, and bicyclists can simply turn around with little or no inconvenience when they reach the plaintiffs' boundary lines, as many presently do. Those who seek to use it as a shortcut to get to another part of the lake can simply circle in the other direction or drive to those destinations.
But the reason for the lawsuit is this. The way is on Big Alum Lake, and many of the lake homeowners have come to see it as an integral part of a 3 ½ mile-long "loop" around the lake consisting of (1) the private roads that lead to the lakefront homes, [Note 6] and (2) in the areas where those roads do not connect, the narrow paths that have been worn between the roads or were bulldozed in those locations when the Town installed the sewer lines around the lake and now keeps open for maintenance purposes. The part across the plaintiffs' land is short (only a few hundred feet, crossed by walkers in less than 30 seconds and by joggers even more quickly), but without that part (or an alternative) [Note 7] the completeness of the "loop" is broken. [Note 8] Each of the lake homeowners who took their claims to trial [Note 9] testified that they have walked, jogged, or bicycled along the loop in the past, including across the plaintiffs' land. While the time periods and frequency of that use were disputed, its nature and manner were not. Until recently, the number of persons crossing the plaintiffs' land (other than to go to or from the Casaubon property) was relatively few. They were quiet. They moved quickly. And they saw no one else crossing the plaintiffs' land when they were crossing unless they were walking with them. Most often they saw no one else at all.
The "loop" route is neither marked nor obvious, and has no formal status in any section. To the contrary, nearly everywhere it crosses is marked "private." The lake homeowners who testified, however, contended that they do not consider any of these signs as applying to them. Rather, they say, their use of all of the parts of the loop is an accepted part of the longstanding "lake culture" of openness and friendliness.
Ms. Roscioli's home, inherited from her parents (and they from theirs', going back to the early 1900's), was formerly a small summer cottage. [Note 10] So too, until recently, were nearly of all the other houses around the lake. The sewer lines, installed in 2002-2004, brought change. According to Ms. Roscioli, where before she might see an occasional person crossing through
her property, no more than a handful, total, over the years and almost always someone she knew and permitted or thought was visiting the Casaubon property (they would exchange "waves" or "hellos" as they passed), those persons were few and far between. [Note 11] But with sewers now making large, year-round houses possible, [Note 12] many of the former cottages have been expanded and "winterized," many new houses have been built, and the number of persons she now sees crossing her land has greatly increased. She reached a breaking point, and realized action needed to be taken, when more and more of the faces she saw were unfamiliar, the use was more obviously solely for recreation, a local joggers' club posted the "loop" on its website, and some of the walkers would be loud and drinking alcohol as they passed. She thus began telling everyone she saw that they could only use her roadway with her permission, sent letters to the lake homeowners with the same message, spoke at meetings of the Big Alum Lake Association ("BALA") to tell its members of her concerns, had smaller meetings with some of them, put up further signs, and installed security cameras. [Note 13] This led to angry confrontations and accusations. Many of those who had previously walked or jogged honored Ms. Roscioli's request to stop crossing her land, and have not crossed it since. But many, when confronted, claimed they had a right to use the roadway and did not need permission to do so. They thus requested the Town to declare Big Alum Road a public way.
The Town asked each person claiming a right to use Big Alum Road to submit an affidavit describing their use and, with a few later additions, the defendants are the ones who submitted those affidavits. [Note 14] After reviewing the affidavits, the Town declined to declare the road public, concluding that it was neither a public way nor one which the public had a right to use. Since this determination by the Town did not preclude private easement claims, nor constitute a final and binding judgment that no public rights existed, Ms. Roscioli and Ms. Rice then brought this case against the affiants, naming them as defendants, seeking to establish that neither the general public nor any of the defendants, other than the Casaubons (for access to their home) and the Town (for emergency fire access and to maintain the sewer line), had a valid claim to an easement of any kind to use the way where it cuts through the plaintiffs' land. Their complaint also sought clarification of what remedial measures they could take to regulate access over that section of way, and injunctive relief to implement those measures. The Town was included as a defendant to make the judgment on public rights final and binding.
The case was tried before me over the course of sixteen days, jury-waived, with seventy-four witnesses and many of the defendants self-represented. [Note 15] I also took a view of both sections of Big Alum Road (the paved part that ends at Ms. Roscioli's property line, and the narrower dirt and gravel section that cuts through the plaintiffs' land), and of the entirety of the 3 ½ mile "loop" around the lake. [Note 16] Based on the testimony and exhibits admitted into evidence at trial, my observations at the view, and my assessment of the credibility, weight, and inferences to be drawn from that evidence, I find and rule as follows. The Town has express easements for fire access and to maintain the sewer line, but there are no public rights of access over any part of the plaintiffs' land. The Town claims none, and none were proved. The Casaubons have an express right to use the section of Big Alum Road that cuts through the plaintiffs' properties for access to their home. So too do those visiting the Casaubons at the Casaubons' express invitation, but only for such visits. None of the other defendants, nor the intervenor-defendants, has an easement of any kind to cross the plaintiffs' land - express, implied, or prescriptive, either appurtenant to a property or personal to them individually. None has an express easement or one by implication. None of their use has been sufficiently open and notorious, continuous or regular for twenty or more years, to establish prescriptive rights. Some was expressly permitted. None occurred in a context that would reasonably be interpreted as an assertion of right. And all occurred in a context the law considers impliedly permitted, negating the "adversity" necessary for prescription. The question of the appropriate remedial measures to enforce this declaration is discussed at the end of this Decision. [Note 17]
Facts and Analysis
The facts I find after trial are set forth below, as well as in the introductory section above. To the extent they differ from any particular witness testimony, even if other witnesses testified similarly on those points, [Note 18] it is because I found such contrary testimony neither credible nor reliable in those particulars.
If any witness believes that I missed or disregarded important parts of their testimony, they are incorrect. I listened closely to the evidence as it was given; observed the witnesses closely; assessed corroboration (and the weight, credibility and reliability of that corroboration) where it existed; considered the lack of corroboration where it was lacking and the explanations given for that lack; took detailed notes throughout the trial; reviewed those notes numerous times in the course of writing this Decision; considered all of the parties' post-trial submissions; and evaluated everything in light of my observations at the view, which provided important insights and context.
Big Alum Lake, Big Alum Road, and "The Loop"
Big Alum Lake is a large body of water in Sturbridge and a superb location for water sports - swimming, fishing, [Note 19] sail boating, power boating, and waterskiing. The overwhelming bulk of its activities are focused on the water - every house that can do so faces the lake, and those on the lakefront typically have boat docks - and the association of lakefront homeowners (the Big Alum Lake Association, commonly referred to as "BALA") spends almost all of its time discussing lake-related issues (noise, algae control, boat speeds, and the like).
BALA's committees are active and meet frequently, typically at the BALA president's house or at the house of the committee chair. Mr. Casaubon is the BALA president and, before that, a committee chair, and his house has been, and continues to be, a frequent meeting site. Most lake homeowners are BALA members. Mr. Casaubon is an outgoing and social person, and welcomes all lake residents to visit him at his home to discuss BALA matters. Thus, absent other indicia, anyone walking to or from the direction of his house would reasonably be assumed to be visiting him. He and his wife purchased the property in 1995 (a small summer cottage at that time, owned by the Koehler family for many years), stayed there in the summers, rebuilt it as a year-round residence in 2008-2010, and have lived there year-round since that time.
Most of the lake homeowners do not live at the lake. Rather, they live and work elsewhere. Until recently, nearly all of the homes around the lake were unheated, un-winterized, "summer only" cottages. [Note 20] With few exceptions, they were thus occupied only during the summer season - Memorial Day to as late as Columbus Day if the weather stayed warm - with perhaps an occasional "day" visit during the fall and winter to check up on them. [Note 21] The lucky ones might stay in the cottages for the entire summer, but many would visit only on weekends or for the few weeks they could take as vacation from their jobs.
A surprising number of the lake homeowners are related to each other, either by blood or marriage. An even larger number are close friends, across many generations. They played together as children (several went to the same schools), dated each other during the summer, and they later married. Their children would grow up and then, once established in the world, come back to buy their own home in a newly developed section of the lake or, in some instances, purchase their parents' (or grandparents') cottages.
Ms. Roscioli was a part of this. [Note 22] Her family has been at the same location in the lake since 1932. Although she herself did not marry a lake resident, her nephew did. Her family operated a popular local restaurant for many years where many of lake homeowners ate frequently and their children would work. Friendships went across generations, with the parents often being the link. The lake homeowners watched out for each other's children. [Note 23] They went to each other's weddings and were invited to each other's homes for parties. Almost everyone belonged to BALA and went to its meetings and gatherings. By and large, particularly for those who lived near each other, everybody knew (or knew of) nearly everyone else of their generation. Such was the nature of the "lake culture."
The sensitivity of the lake to pollution kept development minimal for many years. Expanding an existing cottage, or building a new house, required updated, expensive septic systems. Few, if any, were thus expanded or built. This changed after the Town installed sewers around the perimeter of the lake over the period 2002-2005. After the sewer was completed, many new and expanded homes were built and many new persons came to the lake. More and more residents became year-round, full time. These included Ms. Roscioli, who built a new year round home on her property, completing it in 2006, and has lived there full time ever since. [Note 24] The sewer line runs under the Big Alum roadway, including the section on the plaintiffs' land.
The work on that line completely stopped vehicle traffic on the plaintiffs' section during construction and severely disrupted foot traffic as well. While its trenches were being dug (several feet deep, some stretching across the width of the road), [Note 25] and also when it rained (which turned the dug-up dirt to deep mud), the way was impassable to any but the most determined,
even walkers. [Note 26] I do not believe anyone who says they walked it, jogged it, or bicycled across it, much less regularly, during those times.
The sewer line across the plaintiffs' properties was constructed pursuant to written easement agreements between the plaintiffs and the Town for its installation and maintenance. [Note 27] These easements were necessary because the line crosses private property, and the roadway through which it was built was a private one. [Note 28] The Town also has a written agreement with the plaintiffs for emergency fire access across their land in the form of an exchange of letters between the Town and the plaintiffs' forebear, Rolland Rice, from whom their ownership descended. [Note 29] That agreement acknowledged that the roadway through the plaintiffs' and the Casaubons' property (then owned in common by Rolland Rice) was private, and that it would have a barrier at its dead-end preventing access from Clarke Road Extension except by fire vehicles. As the Town admits, neither those agreements, nor an agreement between the Town and the plaintiffs for temporary repair of Big Alum Road in 1997 to maintain its condition for fire access, contains any right of access for the public. [Note 30]
Big Alum Road had its origin as a camp road - a long dirt driveway from Arnold Road to a lakeside girls camp operated by the Rice family. The Roscioli cottage (before it was rebuilt) and the Rice cottage date from that time. The campground land was subdivided and its lots sold off. The Rices kept the lots currently owned by the plaintiffs, and the Casaubon lot was sold to
the Koehler family. It remained in that ownership until purchased by the Casaubons in 1995. The other lots were sold to others, including several of the defendants in this case. [Note 31]
The individual lots on Big Alum Road each have an express easement over the roadway to that particular lot, but no further than that. See, e.g., Trial Exs. 207, 208. [Note 32] Thus, they have no express easement over the plaintiffs' land, which is past theirs on the road. This makes perfect sense, and was in accordance with the "attendant circumstances" on the ground. The road, then as now, was a dead-end with no general turn-around at the end, so no easement further than the particular lot was needed or warranted. Each lot retained as much privacy as possible.
Not surprisingly, there is no express easement over any part of Big Alum Road for any of the lots on Clarke Road Extension, i.e. the properties on the other side of the the dead-end at the end of Big Alum Road. The deeds to the Clarke Road Extension properties expressly describe their access road as ending at the boundary of the now Casaubon property, i.e. where the fire gate is located. [Note 33] This too is in accordance with the "attendant circumstances" of both Big Alum Road and Clarke Road Extension, which included an express agreement by the Town when it cut the fire access road between the two to put a barrier at the end of Big Alum Road beyond which only fire vehicles could go. See Trial Ex. 206 ("We [the Town] will mark the lane private and put up bars at either end, so that it will be used only in case of fire.").
Big Alum Road has a Town-installed sign that says "Big Alum." There are further signs along the way that say "Dead End" and "Private Way/Pass At Your Own Risk." Ms. Roscioli has also posted a sign at her boundary line that says, "Private Property / #273-#286 Access Only."
The Big Alum roadway was narrower before the sewer line was installed in 2002-2005. The section ending at Ms. Roscioli's boundary line (right before her house) was widened and paved by the Town at the conclusion of that work but, at Ms. Roscioli's insistence, there the paving and widening stopped. The rest of the roadway - the section that goes through the plaintiffs' land - remained dirt, with gravel put on top. As a result, in physical appearance, the roadway sharply narrows just before Ms. Roscioli's house and, from that point forward, looks exactly like what it is: a narrow private driveway leading to the three remaining houses (Roscioli, Rice, and Casaubon), gravel and dirt, with no lighting or pavement. The difference between the two parts of the roadway - the paved section that ends at Ms. Roscioli's property line and the "driveway" section after that point that leads to Ms. Roscioli's house, the Rice house, and the Casaubons' house - is obvious to anyone seeing it on the ground.
The "loop" around the lake as alleged by the lake homeowners is a 3 ½ mile amalgam of the lakeside roads - The Trail, Mt. Dan Road, Paradise Lane, Old Town Way, Lake Road, Roy Road, Big Alum Road, and Clarke Road Extension - and pathways in the gaps between those roads that follow the line of the sewer installation. [Note 34] Those gaps, most noticeably, are (1) between the end of the paved section of Big Alum Road and the beginning of Clarke Road Extension, i.e. where the loop goes through the plaintiffs' and Casaubons' properties, across a section of the Casaubons' grass lawn, and around the locked firegate at the Casaubons' property line, [Note 35] and (2) between Clarke Road Extension and The Trail, where a narrow dirt path, blocked at both ends by locked firegates, cuts through the dense woods. See Ex. 3. Those who use the loop where it is blocked by the firegates walk around them. On the view, had I not been accompanied and shown otherwise, I would not have appreciated that the path through the woods between Clarke Road Extension and The Trail (not a short path at all; its endpoints cannot be seen from its beginnings from either direction) lead to anything, much less that it was part of a "loop" around the lake.
Signs in all sections of the loop say "private." [Note 36] Using the loop in its entirety is not a casual exercise, lightly undertaken. It is 3 ½ miles long (some measured it even longer at 3.7 miles), goes uphill and downhill, [Note 37] and, at the view at a normal pace, it took a little over 1 ½ hours to walk around, In short, it is a long way to go, and involves a lengthy time commitment to do it. Just because someone is seen on the loop does not mean that they have done the complete circuit. They may be going a shorter distance and then turning around - visits to neighbors, for example. The same is true of joggers. The jogger I observed during the view (on Mt. Dan Road/Paradise Lane) passed me going one direction and, a while later, passed me from the other direction - clearly a turn-around.
The Way In Front of the Plaintiffs' Properties As Seen From Those Properties
Before the construction of the sewer (2002-2004 in the section on the plaintiffs' land), at the time before the Roscioli's current house was built (Fall 2005 - Spring 2006), the cottage previously on the Roscioli lot was further from the road. [Note 38] Also, the road in this section was narrower. Then, as now, it was bordered by dense woods and now (in front of Ms. Roscioli's house) by large landscape plantings that have replaced the trees that were formerly there. The Rice property remains as it was. The curves in this section of the roadway have been the same throughout and, because of those curves, the sightline in either direction on the road is not long. Ms. Roscioli estimated it as somewhere between 200' and 400' at most, and that is consistent with my observation at the view. According to her testimony, that distance takes a walker no more than 30 seconds to cross and, again, that is consistent with my observation. [Note 39] A jogger or bicyclist would cross it in even less. The use of the plaintiffs' section of the roadway is thus difficult, at best, for the plaintiffs to discern. The persons on the road, of course, would have an easier time seeing the plaintiffs because they know when they are crossing.
Ms. Roscioli, whom I find to be a more-than-usually attentive landowner, [Note 40] testified at length about her observations of the roadway over the years. I find that testimony credible and reliable. She has been at the property during the summertime, regularly and continually, since 1971. She has been there full time since 2006 and, even during the time of the sewer construction and the construction of her house, was there on an almost daily basis to monitor progress. If there was something that could reasonably be seen, she would have seen it. I so find.
What she saw was very little until the sewer work was completed in 2004/2005 - work which improved, widened, and more clearly defined the pathways between the private roadways around the lake and brought new, more numerous, and larger homes. The pathway widening was not for the purpose of pedestrian access. Indeed, gates were placed across the paths to impede it. Rather, it was done so that the Town would have ready access to those areas for sewer maintenance and fire emergencies. Increased pedestrian traffic on the loop was an unintended consequence.
The most regular and frequent persons Ms. Roscioli saw on the way where it crossed the plaintiffs' land were Mr. Koehler (the owner of the now-Casaubon property) and his guests, the renters and guests at the Rice cottage, and, before she owned it, the renters and guests at her own property. All of these persons had express rights to use the way. She would occasionally see her neighbors walking back and forth on her land (their families and close friends were on both sides) but these occasions were few and ones she permitted. All were friends of her and her family dating back decades, and she considered the relationship between she and them to be one of mutual permission. In any event, the roadway through her property could not be blocked because it needed to be kept open for the Casaubons.
It was only recently (post-sewer, and thus not early enough to accrue prescriptive rights), [Note 41] that she began seeing new faces and increased use by the old ones. I find this fully
credible. The character of her land (a narrow roadway with its sightlines obscured, making it effectively impossible to observe the roadway beyond the property boundaries at any given time), and the nature of the use claimed by the lake homeowners (a walk or jog across the plaintiffs' property, taking only seconds), meant that users could almost never reasonably be seen. To see them, she would need to be on the roadway herself at that time, or just along its side. Moreover, as set forth below, there was not much use of the roadway prior to the sewer work, and little if any of this use could be seen. It certainly could not be seen by a reasonably diligent landowner, on a sufficiently regular or continuous basis, frequently enough over a long period of time, to trigger a reasonable concern that steps might need to be taken to preserve the landowner's property rights from potential prescriptive claims. As Janet Garon, Ms. Roscioli's near neighbor, noted during her testimony, there would never be more than a person a two on any given day on any part of Big Alum Road prior to the sewer work. [Note 42]
The Lake Homeowners' Claims
One hundred-eleven of the lake homeowners either agreed-to or did not contest the plaintiffs' assertion that they had no right to cross the plaintiffs' land - express, implied, or prescriptive. Eighty-nine were defaults. [Note 43] Fifteen were voluntarily dismissals of the claims that such rights existed. [Note 44] Five entered into agreements for judgment. [Note 45] Two explicitly withdrew their claims. [Note 46] The remaining homeowners chose to go to trial.
I discuss the claims of those who participated at trial below. Since easement claimants have the burden of proof, I find that those who did not testify or present testimony about their properties failed that burden.
Before detailing the activities upon which the easement claims were based and analyzing whether the facts meet their burden of proof, [Note 47] I start with the legal requirements.
Express Easement
Easements come in three forms: express, implied, and prescriptive.
Express means what it says: an explicit written grant of a right of use, interpreted in accordance with its wording and intent. See Patterson v. Paul, 448 Mass. 658 , 665 (2007). As previously noted, the only express easements that grant rights to the part of the way that crosses the plaintiffs' properties are: (1) the Casaubons', which grants them a right of access to and from their property across the plaintiffs' land (the only way to access their property), and (2) the Town's, which grant it the right to install and maintain the sewer line and, in a separate earlier document, emergency fire access. [Note 48] No right of access by the public is contained in any of these grants, and none of these express easements is disputed. The Casaubon easement extends to those who visit him at his invitation, but he cannot extend the right to use it to anyone outside that context. To do so would be an overburdening and overloading of his easement - an extension to properties it does not benefit, and beyond the purpose intended in its creation. See Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 319 n. 12 (2005).
As previously discussed, the express easement grants that were made to the other homes on Big Alum Road (all of which are located on the road before the plaintiffs' properties are reached, see Ex. 2) convey access only as far as those homes, not any to anyplace further along the road (which dead-ends at the Casaubon house with no "turn-around" area). See discussion supra at 15 & n. 32; Patterson, 448 Mass. at 665 (internal citations and quotations omitted) ("extent of an easement depends on circumstances of its creation . . . construed with reference to all its terms and the then-existing conditions so far as they are illuminating"). I thus reject the express easement claims by Cara and Samuel Gilbert (242 Big Alum Road), Denise Van Vooren (264 Big Alum Road), and Julie Morrill (268 Big Alum Road). The language of the Roy Road deeds contain no express rights to Big Alum Road at all, nor do the deeds to properties on Hemlock Path, even if the grantor had power to grant one. I thus reject the express easement claims of John and Mari Roy (222 Roy Road), Brian and Marjorie Roy (232 Roy Road), Julianne Percival, Diane Veneziano, and Joseph Veneziano (240 Roy Road), and Deborah Flavia (216 Hemlock Path). The express easements that benefit the homes along Clarke Road Extension (the road on the other side of the Big Alum Road dead-end, see Ex. 3) are only to Clarke Road Extension itself. They explicitly stop at the Casaubon property line. See discussion supra at 15-16 & n. 33. I thus reject the express easement claim of Lisa Bachand (289 Clarke Road Extension).
Implied Easements
Implied easements can arise in several ways, none of which exist here. As a general matter, express grants negate implied grants. See Joyce v. Devaney, 322 Mass. 544 , 549-550 (1948) (internal citations omitted) (creation of express easement in deed negatives "any intention to create easements by implication. Expressio unius est exclusio alterius."). The easement rights of the Big Alum Road properties are thus defined by their grants, all of which stop at their homes. Except for the Casaubons, this is well before the plaintiffs' properties are reached. [Note 49]
There is no implied easement by necessity through the plaintiffs' properties benefiting any of the lake homeowners' properties because there is no "necessity" to use that part of Big Alum Road to reach any home but the Casaubons', and the Casaubons have an express easement for such use. There is likewise no "easement by estoppel," easement by "common scheme," or other type of implied easement entitling these other homes to cross the plaintiffs' property because, as just noted, their properties are before the plaintiffs' and the road is a dead-end. See, e.g., Reagan v. Brissey, 446 Mass. 452 , 458 (2006) (internal citations omitted) ("The origin of an implied easement whether by grant or by reservation must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable."). There is thus no legal or factual basis for an implied easement over the plaintiffs' properties benefiting any of the lake homeowners. If the lake homeowners, or any of them, have easement rights, they can only arise by prescription.
Prescriptive Easements
Prescriptive easements can be public or private.
Public Prescriptive Easements [Note 50]
A public prescriptive easement - a right in the general public to use a way - must be proved by a showing of "actual public use, general, uninterrupted, [and] continued for the [twenty year] prescriptive period." [Note 51] Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 84 (1979) (emphasis added; internal citations and quotations omitted); Witteveld v. Haverhill, 12 Mass. App. Ct. 876 , 877 (1981) (use by public must be continuous for the requisite period). The public use must also have been adverse. See Fenn, 7 Mass. App. Ct. at 84; Town of Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969).
"That there was continued use by the public for more than twenty years does not in itself raise a presumption that such use was adverse. To establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did so must be proved by facts which distinguish the use relied on from a rightful use by those who have
permissive right to travel over the private way." Town of Boxborough, 356 Mass. at 490 (internal citations omitted). In other words, the "public" does not include anyone on the road either by right or by permission, express or implied. Thus, neither the Casaubons nor anyone coming to their house by invitation counts as "public." Since at one point or another nearly all of the lake homeowners have been invited visitors to the Casaubon home (he is President of the Big Alum Lake Association ["BALA"] to which most of those homeowners belong, and he holds BALA committee meetings at his house), none of those homeowners falls within the "public" definition. Importantly, none of them would reasonably have been perceived to be a member of the general public as opposed to a Casaubon invitee, thus alerting the plaintiffs of a need to take action to protect against the accrual of "public" rights. See Town of Boxborough, 356 Mass. at 490 ("public use" must be distinguishable from "rightful use by those who have permissive right to travel over the private way").
Because a public prescriptive easement is an easement by prescription, it must also meet the other prescriptive requirements. Thus, open and notorious use, readily observable to the reasonably diligent landowner in the context and character of his land and "sufficiently pervasive" over the entire twenty year period, must also be proved. Pugatch, 41 Mass. App. Ct. at 540; Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44-45 (2007). [Note 52] For paths through areas whose use cannot readily be seen, even "frequent use by hunters, nature viewers, skiers, relatives visiting [the claimant's] house, and occasional cars travelling into the woods," is insufficient. Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 597 (1994) (emphasis added).
The use must also have been in circumstances where the owner could have blocked it without inconvenience to his own access or the use by others with access rights, but despite such an ability had not done so. See Bullukian v. Franklin, 248 Mass. 151 , 155 (1924). In such circumstances (the need to keep a roadway open for the owner's own purposes or because of others' access rights), the law deems general usage of the way to be made with the "implied license" of the owner, negating adversity. See Kilburn v. Adams, 7 Met. [48 Mass] 33, 39 (1843), discussed more fully below in the private easement section. This makes perfect sense, and is common sense. A landowner is not expected or required to do something to protect his rights (block passage, for example) that is contrary to his own interests or that he simply cannot do.
The claimant has the burden of proving all of these elements, and the failure to prove even one of them defeats the prescriptive claim. Boothroyd, 68 Mass. App. Ct. at 44.
Finally, case law also notes the following. If the other elements are not proved, simply placing a public street sign on the road does not make it public, nor does the listing of the road in the town's annual estimates to the Commonwealth. Town of Boxborough, 356 Mass. at 490; Fenn, 7 Mass. App. Ct. at 86.
Here, the Town has examined the question of a public prescriptive easement over Big Alum Road in detail, soliciting and evaluating affidavits from the defendants, and concluded that no such public easement exists. It has never changed that view. [Note 53] Moreover, prior to the controversy that lead to the filing of this lawsuit arose, even lake homeowners themselves
pushed back at any notion that their roads were in any way public. When the Town erroneously placed the loop on a list of publicly accessible trails, it was immediately challenged by defendant Janet Garon and the Town took it off the list. And as I noted at the view, every roadway in the loop (including all sections of Big Alum Road) has prominently-placed signs that say, "private road," "residents only," or a variation thereof.
Private Prescriptive Easements
To establish a private prescriptive easement, the claimant must prove actual, open, notorious, adverse, and continuous or uninterrupted use for a period of not less than twenty years. See Ryan v. Stavros, 348 Mass. 251 , 263 (1964); White v. Hartigan, 464 Mass. 400 , 413 (2013); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008). As with public prescriptive easements, the claimant has the burden of proof on each of these elements, the proof must be carefully scrutinized, and the failure to prove any element causes the claim to fail. See Boothroyd, 68 Mass. App. Ct. at 44. Because a prescriptive easement "is contrary to record titles, and begins in disseisin which ordinarily is wrongful[,]" the claimant's acts "are to be construed strictly and the true owner is not to be barred of his right except upon clear proof." Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (internal citations and quotations omitted). "If any element remains unproven or left in doubt, the claimant cannot prevail." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009).
Each claimant must prove their claim individually. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) and cases cited therein. For appurtenant easements (i.e., ones "benefit[ing] the possessor of the land in his use of the land," see Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996)), this means proving their claims individual parcel by individual parcel. Houghton, 71 Mass. App. Ct. at 835. The acts of prior owners and their privies (i.e., acts taken on behalf of the prior owner and not separate from that relationship) may be "tacked" to the current owner's acts for purposes of the twenty-year period, so long as there were no interruptions between those acts and the current owner's. See Krieger v. Lanark LJS LLC, Mem. & Order Pursuant to Rule 1:28, 95 Mass. App. Ct. 1111 (2018), 2016 WL 1976015 at *3 (May 3, 2019). For personal easements (easements in gross), proof must be of personal use and no tacking is allowed. See Denardo v. Stanton, 74 Mass. App. Ct. 358 , 364 n. 10 (2009). [Note 54]
At the end of the day, "[w]hether the elements of a claim for prescriptive easement have been satisfied is essentially a factual question for the trial judge", with due regard given "to the opportunity of the trial court to judge of the credibility of the witnesses." White, 464 Mass. at 414 (internal citations and quotations omitted).
As previously noted, the filing of the lawsuit immediately interrupts the adverse use of land. [Note 55] This case was filed on June 24, 2016. Thus, the twenty year period of use must have started no later than June 24, 1996 and continued continuously or regularly thereafter.
As with all prescriptive claims, the use must also have been open and notorious. Prescription, once accrued, takes away a record owner's rights without any compensation for the loss, often a significant one. The purpose of the open and notorious requirement is to ensure that the owner has a "fair chance" of protecting his or her property interests before the limitation period has run. See Boothroyd, 68 Mass. App. Ct. at 44, citing Foot v. Bauman, 333 Mass. 214 , 218 (1955); see also Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (acts of claimant to be construed strictly, so that true owner is not barred of his rights "except upon clear proof"); Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). For the use to be "open," there must be no
attempt at concealment. See Boothroyd, 68 Mass. App. Ct. at 44. For it to be "notorious," "it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Id. (emphasis added); see also Pugatch, 41 Mass. App. Ct at 540 ("sufficiently pervasive"). It need not actually be known to the owner, but it must be "of such a character that the landowner is deemed to have been put on constructive notice of the adverse use." Boothroyd, 68 Mass. App. Ct. at 44. Whether it is of such a character - whether it could reasonably have been known to a reasonably diligent landowner - is evaluated in the context of the character of the land, i.e. would a reasonably diligent landowner have seen it? See Boothroyd, 68 Mass. App. Ct. at 44-45; Tinker, 213 Mass. at 76-77; If it takes place in an area outside of, or obscured from, an owner's reasonably expected view, the answer is no. See Martha's Vineyard Land Bank Comm'n v. Taylor, Mem. & Order Pursuant to Rule 1:28, 93 Mass. App. Ct. 1116 , 2018 WL 3077223 at *3 (Jun. 22, 2018). See also Paine v. Sexton, 88 Mass. App. Ct. 389 , 391 (2015) (noting that "a more pronounced occupation" is needed in wooded areas); LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490 (1938).
As noted above, prescriptive use must be continuous or regular for at least twenty years. See Ryan, 348 Mass. at 263. The use need not be every day, and it can be seasonal only, but it must have a regularity and continuity. See Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961). Interruption, for example, stops accrual. So would times when the use could no longer be seen by a reasonably attentive landowner. If it cannot reasonably be seen, the landowner would not know that he must act to preserve his rights. See Boothroyd, 68 Mass. App. Ct. at 44.
Adversity is negated by permission, and permission need not be express. It can also be implied. Rotman, 74 Mass. App. Ct. at 589 ("[e]vidence of express or implied permission rebuts
the presumption of adverse use"). Just as an apparent claim of right need not be made expressly but rather is judged objectively, so too is permission. "Whether permission has been granted or can be implied depends upon the particular circumstances of the case, including, among other relevant factors, the actions of the owner, the character of the land, the use of the land, and the nature of the relationship between the parties." Alexander v. Juchno, 21 LCR 621 , 634 (Mass. Land Ct. 2013) (Foster, J.), citing Totman v. Malloy, 431 Mass. 143 , 145-146 (2000), Kendall v. Selvaggio, 413 Mass. 619 , 624-626 (1992), and Houghton, 71 Mass. App. Ct. at 842-843. "[While] [a]n unexplained use of an easement for twenty years creates a presumption of adversity, [t]he true owner can overcome the presumption by offering evidence that explains the use or shows control over the use." Alexander, 21 LCR at 634, citing Truc v. Field, 269 Mass. 524 , 528-529 (1930); Houghton, 71 Mass. App. Ct. at 836. "For example, the true owner can defeat the presumption by showing that there was express or implied permission or the use was the result of 'some license, indulgence, or special contract inconsistent with a claim of right by the other party." Alexander, 21 LCR at 634, citing White v. Chapin, 94 Mass. 516 , 519-520 (1866). Importantly, when a use was begun with permission the use is presumed to continue with permission, and the burden is on the claimant asserting adversity to show some word or act by which he put the owner on clear notice that he should take steps to protect his rights. See Hall v. Stevens, 9 Met. [50 Mass.] 418, 422 (1845); Begg v. Ganson, 34 Mass. App. Ct. 217 , 221 (1993).
Here, with few exceptions, the lake homeowners deny that they had or needed permission to cross the plaintiffs' land. [Note 56] This is not dispositive. As noted above, permission can be implied from circumstances, at least four of which exist and must be weighed in this case.
First, the plaintiffs and many of the lake homeowners making claims against them are longtime friends. They have been invited to gatherings at Ms. Roscioli's house, been employed by her family at her family's restaurant, or she has attended the weddings of their family members.
Second, the "lake culture" that the lake homeowners cite as reason why they felt they could use all areas of the loop, even those expressly marked "private," is hard to interpret as anything other than a culture of permission. Parents felt comfortable enough to let their young children play around the lake unsupervised. Ms. Roscioli's own children rescued one of the lake homeowner's children when their boat ran out of gasoline. I was particularly taken with the account of the witness who let her dogs roam around the lake, knowing they would be watered, fed, and then brought back to her house at the end of the day.
Third, use by children is always by implied permission. Prescription requires adversity, in circumstances where the landowner is reasonably expected to forcefully assert his rights against intrusion. No reasonable view of "prescription" considers children, playing on their own, to be either adverse claimants or agents of such claimants whom a landowner is forced to chase away on peril of losing his land. "The law is many things, but it does not require people to be mean to children." See Wolpe v. Haney, 2019 WL 5090528 at *18 (Mass. Land Ct., Oct. 10, 2019) (presently on appeal). I do not consider Mr. Wilson (of the long-running comic Dennis the Menace) as binding precedent to the contrary.
Fourth and most important, as with "public" prescriptive easements,$ [Note 57] private prescription is negated by a landowner's need to keep a way open for his own purposes or because he is required to do so because of another's right of use. See Kilburn v. Adams, 7 Met. [48 Mass] 33, 39 (1843). In such circumstances, absent a "decisive act, indicating a separate and exclusive use, under a claim of right," use by others is deemed to occur with the landowner's implied permission and the owner is not precluded from later prohibiting such use. Id. Here, the plaintiffs could not block the way because of the Casaubons' express easement and the Casaubons' refusal to permit such blockage. See Western Mass. Elec. Co. v. Sambo's of Mass. Inc., 8 Mass. App. Ct. 815 , 818 (1979), citing Texon Inc. v. Holyoke Mach. Co, 8 Mass. App. Ct. 363 , 366 (1979) ("The owner of the servient estate may not use the property subject to the easement in a way that would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights.").
Having set out the framework in which the lake homeowner's claims must be judged, I now turn to those claims.
As will soon become apparent from the discussion, there is a thread common to most of the claims, a thread common to a smaller subset (the near neighbors), and a thread common to all.
The thread common to most is the lack of notoriety of the activity on which the prescriptive claims are based. Until 2007 when vandalism occurred at the Casaubon house, the plaintiffs did not know, and as reasonably diligent landowners could not have been expected to know, of the existence and frequency of the activity. Due to the character of the roadway (narrow, bordered by woods, with limited sightlines) and the nature of the use (quiet walks or jogs, taking no more than 30 seconds on the plaintiffs land, leaving no trace, and in total no more than a few a day at most), the plaintiffs could not reasonably have seen that use and concluded it was regular and continuous enough, over the requisite time period, to result in prescriptive rights). [Note 58] See Martha's Vineyard Martha's Vineyard Land Bank Comm'n, 93 Mass. App. Ct. 1116 , 2018 WL 3077223 at *3.
The thread common to the near neighbors is the permission implied from the circumstances of their relationships with the plaintiffs. See Smaland Beach Ass'n Inc. v. Genova, 94 Mass. App. Ct. 106 , 115 (2018) ("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.").
The thread common to all, precluding all of the prescriptive claims even if the use was "notorious" and there were no relationships from which permission can be inferred, is the permission implied by law from the nature of the roadway. The plaintiffs' need to keep the roadway open for the Casaubons' use was, by law, an implied license for other users that negated the element of adversity. See Kilburn, 7 Met. [48 Mass] at 39. These factors defeat public prescriptive rights as well. See Bullukian, 248 Mass. at 155.
Public rights are also defeated because the volume of use on the way where it crossed the plaintiffs' land never rose to a number and volume that can be deemed the "general public." Even totaling all of the use of all of the lake homeowners over all of the years, it never amounted to more than a few a day and certainly not to a large enough number, regular or continuous over twenty years or more, to result in "public" rights. See Rivers, 37 Mass. App. Ct. at 597. Moreover, for purposes of "public" prescriptive accrual, "the public" does not include persons on the way who are there by right or permission. Town of Boxborough, 356 Mass. at 490. Nearly all of the homeowner defendants are BALA members and thus have permission from Mr. Casaubon to visit him on BALA matters. A large number of them are also his personal friends, and similarly would be permitted to use the way when invited to his home. Thus, neither the Casaubons nor anyone coming to their house by invitation counts as "public." Put simply, the "general public" has never used way across the plaintiffs' land, and certainly not in sufficient numbers, over twenty years or more, to accrue "public" rights. As previously noted, the Town (which conducted its own investigation) came to the same conclusion.
Kilburn's "implied license" applies to all of the lake homeowners and their properties, so I need not and do not discuss it individually. Bullukian's similar doctrine for public prescriptive analysis likewise applies to all and will not be individually discussed. Rather, the discussion below is confined to the issue of notoriety and whatever individual permission may have been given or reasonably be implied by the circumstances. But remember throughout that, even if every homeowner's use was notorious and continued as such, pervasively, with the requisite regularity over the requisite period of time, and even if the circumstances did not show express or implied permission, each of the public and private prescriptive claims independently fails under Kilburn and Bullukian because the plaintiffs' have no choice but to keep the way open for the Casaubons' use.
Janet Garon/236 Roy Road
It is perhaps best to start with Janet Garon, the only "neutral" witness in the case, who makes no claims of any kind. I start with her because her testimony was consistent with Ms. Roscioli's and she provides important corroboration on important points.
Ms. Garon has been at 236 Roy Road since her birth (1954), summers at first and, since 1999, full time. She has a full view from her deck of the upper part of Big Alum Road and has
watched its comings and goings for many years. She has also walked around the lake many times.
The important parts of her testimony were these. The lake was a quiet place before the sewers were installed. Most of the homes were un-winterized summer cottages, inhabited only in the summers. When she walked around the lake in the 1990's she might see two other people, at most, doing the same. Only Lake Road, Paradise Lane, and The Trail were paved. Everything else was dirt and narrow. The installation of sewers around the lake brought great change. The roads were widened and paved, the footpaths that previously existed were widened so that they could be used for sewer maintenance access, existing homes were expanded, and many new homes were built. The number of new faces around the lake greatly increased.
Ms. Garon confirmed that Big Alum Road has been a dead end since she's known it, with a barrier at its end - first a stockade fence, then boulders, and now a firegate. When she walked that way she was always careful that she was not seen.
She recalls the beginning of the controversy in 2007. There was a BALA meeting, and Ms. Roscioli raised the question of people walking on the section of Big Alum Road that crossed her land. Ms. Roscioli told the meeting that the roadway there was her private property, and that if people acknowledged her and crossed quietly, she would permit them to do so. She does not recall anyone objecting at the meeting or expressing a contrary view. In fact, the lake community was very protective of the privacy of the lake. When Ms. Garon became aware of a town map that showed a trail around the lake (following the line of the sewer), she and others immediately contacted the Town and had it removed. A lakeside pathway that formerly existed between Hemlock Path and Roy Road had been blocked off by its owners to preserve their privacy, and this had occurred without objection.
Scott and Lisa Sanderson/74 Paradise Lane.
The Sanderson house at 74 Paradise Lane (on the far side of the lake from the plaintiffs) was a summer cottage before the sewers were installed, owned by Mr. Sanderson's grandmother, but has since been acquired by the Sandersons and, since the sewer (i.e., after 2004), has been expanded into a year round house.
Mr. Sanderson claims that he currently walks around the lake five times a week for exercise and to visit friends. [Note 59] This may be his current level of use (although, on cross examination, he reduced this to "2-3 times per week, weather permitting"), but he did not credibly show that he did this as a regular or continuous practice, for twenty years or more prior to June 24, 2016, [Note 60] much less on the section that cuts through the plaintiffs' property, even during the summers, and certainly not with any noticeable frequency. [Note 61] I believe he used the loop more as a child, but that was as a child and not on a sufficiently regular and continuous basis. Activity around the lake, particularly for children, focusses on the water, not on long excursions on the ground and, as Mr. Sanderson conceded, his use became less and less the older he got. [Note 62] It is telling that, in all the years he claims to have walked on the way in front of Ms. Roscioli's property, he has only seen her once or twice.
The Sandersons bought the property in 1993 and moved there in 1994. Before that they lived elsewhere, and were simply visitors. Ms. Sanderson had walked around the lake with Mr. Sanderson when they were dating, but their use was not much more than such occasional walks until after they bought the house. She estimated that she walked the loop 2-5 times per week
after the purchase, but I am not convinced that it was as often as this, and am certainly not persuaded that she did this on a regular or continuous basis, even during summers, for twenty years or more prior to June 24, 2016. She never saw Ms. Roscioli at the plaintiffs' property. She and her husband had young children, all of whom needed attention. She took up running when they were older and began jogging along the loop, but that was for a brief 2 ½ year period beginning in 2014 and did not involve a significant number of loops.
None of this, by either of the Sandersons, was sufficiently frequent and noticeable at the plaintiffs' properties to put the plaintiffs on reasonable notice of their activity. As noted above, none of these walks over the plaintiffs' properties would have taken more than 30 seconds, and the jogs much less. They would have been out of reasonable sight for almost all that time.
Moreover, even had Ms. Roscioli seen the Sandersons at any particular time she would reasonably have concluded that they were on Big Alum Road to visit the Casaubons. The Sandersons are friends with the Casaubons and have an open invitation to visit them at any time.
In sum, neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Kathleen Daly & Ann Klejna/18-20-22 Mt. Dan Road
The Daly/Klejna property was formerly owned by their parents (now deceased), and was (and is) a summer cottage, used only in the summers. They stayed there summers as children dating back to the 1980's, but their use of the loop was almost always simply to get to the dam and boat ramp on the south end of the lake, i.e. not beyond that to the part of the loop that crosses the plaintiffs' property on the other side of the lake. They occasionally did a full loop with their parents or grandparents or as part of a bicycle circuit, and on occasion would have walked across the plaintiffs' land to see the animals at Hyland Orchard when it had such animals, [Note 63] but I find this occurred sporadically, infrequently, and unobserved. Their use was interrupted by college, although they returned for various weekends.
As adults they do a full circuit of the loop on occasion, either on foot or by bicycle, sometimes for exercise and at others to visit friends, [Note 64] but I do not believe to the "3-5 times per week" level they currently claim. I am certainly not persuaded that this level of use, even if all of it has involved going across the plaintiffs' property, has been regular or continuous for twenty years or more, even on a seasonal basis, and certainly not observably so. As they admit, it takes only seconds to get across the plaintiffs' land. No signs of their passage are left. And, tellingly, they have never seen Ms. Roscioli, or even the Casaubons, at any time they've walked over their properties.
In sum, neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Stephen & Patricia Murphy/5 Lakewood Trail
The Murphys bought the land in 1987 but, because it could not pass the percolation test needed for a septic system, could not build on it. This problem was mooted in 2005 when the sewer line was installed, and they built their house and moved in at that time.
They came to the lake during the summers before their house was built (1987-2005), but generally stayed at the south end near the boat launch where they would picnic. They would walk across the way through the plaintiffs' property during that time period no more than twice a month. Today, now that they are in their house, they claim to do a loop two or three times a
week in good weather, but this is only since 2005 and still infrequent. In any event, I find that it is not reasonably noticeable, and certainly not on a regular or continuous basis for at least twenty years prior to June 24, 2016. They agree that it takes only 30 seconds at most to cross the plaintiffs' property, and that they have never seen Ms. Roscioli or anyone else on the plaintiffs' properties. Tellingly, they have seen no one other than themselves when they are walking there except, "maybe", a very occasional jogger or bicyclist.
In sum, neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Thomas Faxon & Lori Faxon/58 & 60 Mt. Dan Road
The Faxon properties, owned by the family since the 1890's, are at 58 and 60 Mt. Dan Road. Mr. Faxon grew up in #60, and currently lives in #58 which he bought from his grandmother in 2014. His primary use of the loop was to go from his house to visit friends on Paradise Lane, both on the far end of the lake from the plaintiffs' properties, miles away. His babysitter occasionally walked him around the loop when he was little (although I find this would have been rare - 3 ½ miles is a long way to walk a child) and his other use of the complete loop (an occasional circuit by bicycle) was likely also infrequent (his testimony that it would be 2-3 times/week seems unlikely, particularly on a continuous or regular basis). He claims he rode a dirt bike over the plaintiffs' part of the loop when he was in high school, but I doubt he did that more than occasionally. Ms. Roscioli would certainly have noticed, although she might reasonably have assumed that it was someone going to the then-Koehler, now Casaubon property (they had motorcycles) and thus had a right to be there. Three further things are significant and support my conclusion that his use was not sufficiently frequent and noticeable to trigger prescriptive rights: (1) he does not recall seeing any sewer work in front of the plaintiffs' properties (and thus had at least a two year interruption in any use he had made), (2) he has never seen the plaintiffs or Mr. Casaubon on their properties, and (3) once he heard there was a controversy over the use of the plaintiffs' portion of Big Alum Road he has completely stayed away.
His ex-wife Lori Faxon, who still lives with him, is a morning walker, starting at the Mt. Dan Road home on the far side of the lake as early as 7:30 a.m. She testified that she'll do between three and five circuits a week and has done so since 1995. She generally walks with one or two others. I am not convinced that she is the year-round walker she claims ("through ice and mud") or that she is a consistent 3-5 time a week walker, but I accept that she walks in summer and with some regularity. She has had health setbacks (cancer) but, to her credit, has kept walking.
I find for her what I find for others. Her walks across the plaintiffs' properties are quick and quiet, whether alone or with a companion. They have thus not been "notorious."
In addition, her walks have an overlay of permission. She and Ms. Roscioli are long-time acquaintances. Their children attended the same college. She went to Ms. Rocioli's husband's 50th birthday party. She go to a lot of the same parties. Ms. Roscioli testified that Ms. Faxon walks on her land with permission.
In sum, neither Mr. Faxon nor Ms. Faxon personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Meredith & Jane Howlett/32-33-35 Mt. Dan Road
The Howletts are another long-time lake family, related to the Fearings. Meredith is a new lawyer. Her parents are Jane and Jeffrey and it is they who own the property. The house is a seasonal one. It is on Mt. Dan Road, on the far side of the lake from the plaintiffs' properties.
Meredith's account was straightforward. She lived at home with her parents at the time of trial. She walks around the lake nearly every weekend, once a week, before breakfast. Her purpose is for exercise, but her family is best friends with the Casaubons. In fact, Mr. Casaubon taught her how to waterski. She agrees that it takes only seconds to cross the parties' land. She knows Ms. Roscioli from the Roscioli restaurant, but has not seen her on the property. To avoid confrontation she has stayed away from the plaintiffs' land since she heard of the confrontation, walking or jogging as far as their boundary line when she goes in that direction and then turning around to go back to her house.
I find that her use of the road has not been sufficiently pervasive and noticeable enough on a continuing or regular basis to accrue prescriptive rights. And any sighting of her would reasonably be perceived as a visit to the Casaubon house, which (as a visitor, when a visitor) she could do of right.
Jane's account was as follows. The Fearing family has owned these properties since 1961; Jane is a Fearing. The house is seasonal only, used only in the summer, although it is rented out to tenants for two of those weeks whose use of the loop (if any) is unknown. Jane bicycles and walks along the lake, currently perhaps as much as 3-4 times a week, but how many of these journeys involve crossing the plaintiffs' properties was not specified, nor the years she has done so in the past, nor how regularly and consistently she has done so at that level over those years. Her typical journey is to visit her cousins who live across the lake, but she did not identify where they live, so it is unknown what direction she takes and how frequently it involves a complete loop. A trip around the north end of the lake would not cross the plaintiffs' land unless a complete loop was made. For purposes of this case, the most important facts are these. In all these trips, in all these years, she has seen Ms. Roscioli perhaps once. And she has known the Casaubons all her life. Thus, any journey by her in the direction of the Casaubon's house would reasonably be seen as a visit there, at their invitation, and thus a use of right.
In sum, neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Daniel & Shannon St. Onge/62 Mt. Dan Road
Daniel and Shannon St. Onge purchased 62 Mt. Dan Road in 1999 and built a house on it in 2013. It is next to #64, owned by Daniel's mother, who has chosen not to contest the plaintiffs' assertion that neither she nor #64 has a right of access over the plaintiffs' land. [Note 65]
The current house at #62, built in 2013, is winterized, but except for an occasional Thanksgiving or Christmas is not occupied in the winter. It is used only on summer weekends and for two weeks in August. The same was true of its predecessor (unwinterized) cottage, which Daniel and Shannon purchased in 1999. Before that they stayed at #64 with Daniel's mother, as they did in 2013 while the new house on #62 was being built. Shannon is a jogger, and usually runs around the loop at least once, sometimes twice, on a weekend. She will also occasionally walk or bicycle around the loop. Daniel walks and bicycles the loop approximately the same amount. Both agree that their passage across the plaintiffs' land is momentary - 30 seconds to walk, less while jogging or on a bicycle - and that they have never seen Ms. Roscioli at her property at any time during any of the years they have crossed it. I thus find that a reasonably attentive landowner would not have seen their use, much less on a sufficiently frequent basis to conclude that action must be taken to preclude the accrual of prescriptive rights. Moreover, the St. Onge's are long-time friends of the Casaubons. Any reasonably attentive landowner who saw them coming or going to the Casaubon house would thus have reasonably seen it as a visit to the Casaubons, at their invitation, and thus a use of right.
In sum, neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Elizabeth & Michael Detarando/98 Paradise Lane
The Detarandos have owned 98 Paradise Lane since 2006. It is a year-round house, built on the site of a summer cottage owned by Michael's parents, that burned down in 1987. There was insufficient evidence of continuing and notorious use of the way across the plaintiffs' land for a twenty year period before 1987 (Michael was a child, and there was little evidence of his parents' use).
Septic issues prevented reconstruction and were not mooted until the sewers were installed and a new house could be built. That new house was completed in 2007 and they moved into it in April 2007.
There was little use associated with the property from the time the cottage burned down until the new house was built, and none that would accrue prescriptive rights. Michael was in high school in 1987 and would run around the loop to train for football and soccer. I find that this use was not associated with the property, but rather personal to Michael. In any event, it was not sufficiently frequent or noticeable to accrue prescriptive rights over the plaintiffs' land. If Michael is to be believed, and on this point I do not doubt him, these were intense runs, and he would have passed through the plaintiffs' properties in an eye blink.
Michael went off to college and came back to the lake weekends and summers to visit his friends. They would gather at the friends' houses and often at the boat launch area off The Trail. There was no continuity or regularity to their going through the plaintiffs' properties to get from one place to another and, again, due to the character of the plaintiffs' land and the quickness of Michael and his friends' passage, [Note 66] a reasonably attentive landowner would not have seen them.
In any event, the relationship between Ms. Roscioli and the Deterando family (friends of many years, across generations) can only be seen as implied permission for him to cross the plaintiffs' land. [Note 67] Michael dated Ms. Roscioli's niece when he was in high school, and he would often see Ms. Roscioli either at her family's restaurant or at school ballgames. Ms. Roscioli certainly considered his walks through her land as permissive. This was confirmed when she told him in 2015, "you can visit me anytime, but I don't want my house used as a recreation area."
Mrs. Detarando was a school friend of Moira McGrath and Moira's family (the Morrills) and visited her at 268 Big Alum Road as a child. Her visits there and the times she crossed the plaintiffs' property, however, were not sufficiently regular and continuous over a period of at least twenty years to have accrued prescriptive rights. Nor were they sufficiently notorious. To the extent this changed, it did not change until after 2007 (i.e., less than twenty years before the filing of the lawsuit). [Note 68] This was when her son was born with heart trouble and needed to stay away from public places for health reasons. When he was big enough, she began walking him around the lake in a stroller, joining a mothers' group that would walk their strollers together around the loop, including through the plaintiffs' properties. According to her records, these began in 2009 and did not become regular or frequent until 2014. These did come to Ms.
Roscioli's attention, and Ms. Roscioli called the police when Ms. Detarando refused to stop.
This "notorious" use began too late for the establishment of prescriptive rights. None of her or her husband's other uses were sufficiently notorious. I thus find that neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Ellen & John Welch/90 Paradise Lane
The Welches live in Wilbraham. They bought their house on Paradise Lane, on the far end of the lake from the plaintiffs, in 1983. For years they used it only on weekends in the summer and early fall, renting it to tenants during July in August. They winterized and expanded it in 1987 and, since that time, have stayed in it during the summer months, June through August. They are walkers, but short walkers. They walk through the plaintiffs' land, at most, once or twice a month during the three summer months. Again, these walks take little time on the plaintiffs' properties, just the seconds needed to cross them. They have never seen Ms. Roscioli when crossing the plaintiffs' land. Neither has crossed the plaintiffs' land since the controversy began. They
In sum, I find that the Welch's walks over the plaintiffs' land have been insufficiently frequent to satisfy the "continuous or regular" requirement, and also find that they have not been notorious. I thus find that neither they personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Marisa and Christopher Shufro/331 The Trail
The Shufros have been on the lake at this house since 1993, renting it until they purchased it in 1996. Ms. Shufro was an ultimate Frisbee competitor until she broke her shoulder in 2000, and exercised by running around the lake on the loop. Since that injury, she has not run around the loop more than three or four times a month. She and Christopher also took her children on occasion to visit the animals that were then at the Hyland Orchard site, walking through the plaintiffs' properties to do so, although this was not often. She also taught her daughter how to bicycle by practicing on the loop, but I doubt this was frequent or for more than a limited time. In any event, on each of the occasions she walked or bicycled through the plaintiffs' properties she did so quickly and without stopping. She may have seen Ms. Roscioli once in all the years she passed through, but could not say for certain.
Mr. Shufro is also a former runner. He testified that he ran the loop, including through the plaintiffs' properties, perhaps three to five times a week in the mid-1990's, but has not run much since that time. He played ultimate Frisbee at the Hyland Orchard in 2008, going back and forth over the plaintiffs' land, but that appears to have been limited to that year. Today, and for quite a while, he only crosses the plaintiffs' property occasionally, generally to go to the Hyland Orchard (now the Highland Brewery) for its music entertainment. He has always crossed the plaintiffs' properties quickly, and has never seen Ms. Roscioli on her land.
I need not reach the question of whether the Shufros' passages over the plaintiffs' land were regular and frequent enough to be "notorious" because I find that they were not sufficiently visible, on a sufficiently continuous or regular basis, to be notorious. I thus find that neither the Shufros personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Michael & Sandra Lemanski/114 Paradise Lane
The Lemanski house (a vacation home) is on the opposite end of the lake from the plaintiffs, probably as far away as you can get. He is an emergency room physician, and she is a dietician. They are friends with the Faxons, his father having grown up with Mr. Faxon's grandfather.
Dr. Lemanski claims to have used the entirety of the loop, including the area that cuts through the plaintiffs' properties, for 27 years gave no specifics when pressed. He is a runner and, if his testimony is accurate, perhaps the most dedicated runner of all - claiming to run around the loop between 5 and 10 times a month in the Spring, 15 to 20 times a month in the Summer, and between 2 and 4 times a month in the Winter. Of significance in his testimony are at least three things. He goes quickly through the plaintiffs' property. He has never seen Ms. Roscioli on her property, or even the Casaubons on theirs, when he runs through. And, in all the years he has run (27), he can only recall ever seeing two people, total, walking on the loop section where it cuts through the plaintiffs' land - Norma Roy and Lisa Sanderson (no identification of the dates he saw them was given). [Note 69] I find this last significant because it directly confirms what I have concluded from others' testimony as well. The way through the plaintiffs' property has been little used historically and, when it is used, it is typically by a single person (or perhaps two) at any given time.
Mrs. Lemanski is also a runner. She claims to run the loop every day in the summer, sometimes by herself, sometimes with others, and maybe a second loop. I am not altogether convinced of this, at least on any kind of consistent basis (Ms. Lemanski had an unfortunate confrontation with Ms. Roscioli in 2015 when Ms. Roscioli saw her and objected to her use of the way; in retaliation, Ms. Lemanski made a point of running there every day that week; anger can affect recollection), but need not determine the actual count. The important point for her is the same as the important point for the others: her quick runs through the plaintiffs' portion of Big Alum Road, seconds at most, are not sufficiently "notorious." That this incident took place in 2015 and at no time earlier is strong evidence of this.
In sum, I find that neither the Lemanskis personally, nor as appurtenant to their property, proved a private or public prescriptive easement over the plaintiffs' land.
Gary Galonek/164 Lake Road
Mr. Galonek has only lived on the lake and owned this property since 2004. Even if his passages over the plaintiffs' property were sufficiently frequent and notorious (the evidence was otherwise), the requisite twenty years of use has thus not been satisfied, and there can be no easement appurtenant to that property. Mr. Galonek can have no personal easement because his personal use only began in 2002 when he would visit friends at the lake.
Richard Farland/166 Lake Road
Mr. Farland's parents had homes at various places around the lake as he was growing up, and he had many friendships. Indeed, he met and dated his future wife at the lake. The lake is a big place, he had friends everywhere, and many of his activities did not involve any passages through the plaintiffs' property. It was thus not proved that those passages were frequent and pronounced enough to be "notorious," and the evidence suggests they were not. Instead it indicates that they were in the same fashion as the ones described above - quick, no stops, and without seeing Ms. Roscioli - except for once. On that single occasion he was riding a snowmobile from the direction of Clarke Road Extension and decided to drive around the firegate and proceed down Big Alum Road. He was caught by Ms. Roscioli (who recognized him; she and his parents were close friends), told to turn around and "never do that again in my back yard", and complied. As shown by that incident his use was permissive, and he considered it so. I find thus find that neither he personally, nor as appurtenant to his property, proved a private or public prescriptive easement over the plaintiffs' land.
Lee & Wendy Cappola/111 Paradise Lane
The Cappolas bought their property in 1997, and the house was not completed until May 1998. They thus do not have the twenty years of use prior to the filing of the lawsuit (June 2016) that prescriptive easements require.
Linda Connly/103 & 104 Paradise Lane
Ms. Connly acquired 103 & 104 Paradise Lane in 2000. She was part of the group of mothers who walked around the lake with their children in strollers on weekends. It was not clear from her testimony how frequent these were (she gave varying estimates) and over what period of time (children grow out of strollers, so it had to be limited). Her other use of the loop route was occasional walks or bicycle rides with her husband, but no details were given. All of this would have been a quick passage through the plaintiffs' properties and thus not notorious. There was certainly no testimony that the group she was with was at all noisy. She did not say if she saw Ms. Roscioli, and I thus conclude that she did not. I find thus find that neither she personally, nor as appurtenant to her property, proved a private or public prescriptive easement over the plaintiffs' land.
Susan Gross/16 Mt. Dan Road
Ms. Gross and her sisters, Deborah Weber and Heather Bennett, are co-owners of 16 Mt. Dan Road, a property first purchased by their grandfather in 1925. Each of them lives elsewhere, and uses the house only in the summer. Neither Deborah nor Heather testified.
Ms. Gross is at the house only two or three weeks a year, and walks around the loop only on the weekends while she is there. Her passages through the plaintiffs' properties are thus too
sporadic and intermittent to be continuous and regular as prescriptive easements require. I find thus find that neither she personally, nor as appurtenant to her property, proved a private or public prescriptive easement over the plaintiffs' land.
Tina Gagnon/106 & 126 Paradise Lane
Ms. Gagnon did not live on the lake as a child but was school friends with the Morrill family, and would do day visits to their summer cottage at 268 Big Alum Road during the summers of 1987 to 1993. She went to college in Oklahoma in 1993 but would come back to the lake for occasional visits. She married her husband, Stephen Gagnon, in 2000 and they purchased 126 Paradise Lane in 2001 and 106 Paradise Lane in 2011. Paradise Lane is on the far end of the lake from the plaintiffs' properties so her passages through them come only when she walks around the loop. These are on runs (by herself), or walks with her children or friends. She has been part of the group of mothers that walk around the lake. She did not see Ms. Roscioli on her property until recently.
The issue with her prescriptive claim is the same as described for the others. The passages across the plaintiffs' land are quick, and the view of them obscured. Her walks or runs have rarely been more than once a week, so she is on the plaintiffs' property no more than 30 seconds a week. She makes a point of not drawing attention to herself as she walks through the plaintiffs' land. In her words, she walks "with her head down." Her use has thus not been notorious. For this reason I find that neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
John Argitis/143, 144, & 146 Lake Road
Mr. Argitis has been at these properties since 1982 when he was a teenager. His parents sold them to him in 1999. Lake Road is north of the plaintiffs' properties so his only passages
through them have come when he is using the loop. He testified that he has done this since he first came to the lake. These have primarily been walks, sometimes with his dog. He will walk by himself, occasionally with his brother, and occasionally with friends. Walking the loop, he testified, is "part of the culture of the community." He has never been questioned or prevented on any of his journeys. His passages through the plaintiffs' property are not many. He typically walks around the loop perhaps 3 times a month with his dog, and another once or twice with friends. His parents own a golf cart and like to drive from their current home on Hemlock Path to the Casaubon home at the end of Big Alum, and then turn around and drive back. It was not clear if they visit the Casaubons at these times, or hope to.
Mr. Argitis testified that his passages through the plaintiffs' properties are open and obvious but, as previously noted, that is from his perspective, not the homeowners'. His walks are like the others, 30 seconds at most, four or five times a month at best. I find that they are thus not "notorious" within the requirements of prescriptive easements. Moreover, I find that they are with implied permission. He has known Ms. Roscioli "for years", dating back to the 1990's when he frequented their family restaurant. He knows her husband well and frequently socializes with them as an invited guest to parties at their house. His passages are thus the complete opposite of "hostile" or "adverse", and the plaintiffs could never reasonably perceive them as such. I thus find that neither he personally, nor as appurtenant to his property, has proved a private or public prescriptive easement over the plaintiffs' land.
Sabrina Danna/109 Paradise Lane
Ms. Danna has lived at this location since 1994, and was part of a mother's group that walked around the lake from time to time. Typically this was when the fathers were home and watching the children, freeing up the mothers to socialize with each other. She would also occasionally ride her bicycle around the loop during the week when the children were in school. Her children are now all grown, but she still walks.
However, since the controversy began, she no longer walks through the plaintiffs' properties. She now walks to the Hyland Brewery, turns around, and walks back.
Ms. Danna was always quiet when she passed through the plaintiffs' land, and always came from the Casaubon side. Her passages would only be seconds. She never saw Mrs.
Roscioli at her property. I thus find that they were never notorious. Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Laura Eliason/4 Lakewood Trail
Ms. Eliason's property is south of the plaintiffs. She is a retired teacher, and for much of the relevant period had a young daughter who lived at home with her. Her use of the way was primarily to accompany her daughter when they would walk to Highland Orchard (now Highland Brewery) to see the animals or to get ice cream. Her daughter would also bicycle to visit classmates on Big Alum Road, and she would accompany her. She would also go herself to a neighborhood book club that would occasionally gather in a home on the other side of the plaintiffs' property, walking through it to get there. She visits the Casaubons now and again.
Hers is another use that was quiet, brief, unnoticed, and not reasonably noticeable. It was never more than once a day, and only seconds each time. She never saw Ms. Roscioli before this lawsuit began. I thus find her use was not notorious. Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Barbara Hitchcock/102 Paradise Lane
Ms. Hitchcock, almost 70 at the time of trial, lives on Paradise Lane on the far side of the lake from the plaintiffs. She bought the property in 1977 when it was just a summer cottage and, in 1989, knocked it down and built her current year-round house.
Ms. Hitchcock's passages across the plaintiffs' properties were always as part of an overall loop walk. She walked, and walks, once a week, weather permitting, year round, sometimes by herself and sometimes with a friend. When she was a teacher she would bring her class, once a year, to walk around the loop. She has occasionally passed another lake resident, Robin Ritchie, as they cross the plaintiffs' land from opposite directions. She has never seen Ms. Roscioli on her property on any of her walks, although she went to her house after the controversy arose to talk with her to see what could be done.
Ms. Hitchcock has great sympathy for Ms. Roscioli and agrees that some on the lake, particularly some of those gathering at the Italian American Club at the south end of the lake, have become rude and disrespectful. She does not believe that the other lake people are a problem in any way. She has always been quiet and crosses the plaintiffs' properties quickly and quietly without stopping.
I thus find that her use was not notorious. Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Sandra Kotsifas/15 Harrington Court
Ms. Kotsifas lives on Harrington Court, south of the plaintiffs, and was 75 at the time of trial. She has been in that house only since 2014, so it cannot have an appurtenant easement from her use and there was no testimony regarding any prior owner's use on which she could "tack." She nonetheless claims a personal easement. Before moving to Harrington Court she lived nearby on Lakewood Trail, and her pattern of use was the same.
Ms. Kotsifas is a retired nurse. She walks across the plaintiffs' properties for exercise as part of a loop walk, perhaps five times a week, often with Lori Faxon. She is friendly with Mr. Casaubon and has an open invitation from him to cross his property at any time.
Unlike the others, she has seen Ms. Roscioli on her property as she walked by. This was when Ms. Roscioli was first moving into her new year-round house. Ms. Roscioli saw her, raised no objection to her walking, and Ms. Kotsifas thus assumed she had Ms. Roscioli's permission to walk there and proceeded on that basis. The only other occasion on which Ms.
Kotsifas could recall seeing Ms. Roscioli was in 2014 when, for the first time, Ms. Roscioli objected to her crossing. Ms. Kotsifas has nonetheless continued walking since that time.
I find that Ms. Kotsifas does not have a prescriptive easement across the plaintiffs' land appurtenant to her property because she has not lived there for the requisite twenty year period. I find that she does not have a personal easement because she understood her use before 2014 to be permissive, and it is only since that time that it has been adverse.
The Town Witnesses: Police Chief Thomas Ford, Officer Edward Page, and Director of Public Works Gregory Morse
The Town makes no claim to anything regarding Big Alum Road other than its express fire access and sewer maintenance easements. The police witnesses, Chief Ford and Officer Page, testified only to their response to the plaintiffs' request for enforcement of the "private" nature of Big Alum Road. Put briefly, for a short time in 2015 in response to a request from Ms. Roscioli, the police stationed an officer on the road to warn people not to trespass. This stopped when it became clear that the matter was going to court, and the police await its outcome before taking any further action. The DPW witness, Mr. Morse, testified that the Town considers the road private and its only involvement is to do periodic maintenance for the purpose of access to the sewer line. This includes plowing in the winter.
Moira (Morrill) McGrath/29 Glendale Road
Ms. McGrath is a Morrill and, as a child, was a summer resident at 268 Big Alum Road. She makes no claim to an appurtenant easement for her house on Glendale Road (purchased in 2011 and thus not meeting the twenty year requirement), and her time away from the lake (including Boston from 1997-2000, and New Jersey from 2006-2010) interrupted her personal use, thus failing the continuity requirement. Her role at the trial was primarily to testify about the use of the family's Big Alum Road home when she was a child and is discussed below in connection with that property.
Dennis & Audrey Murphy/162 Lake Road
Mr. Murphy and his wife Audrey have lived at their house on Lake Road (north of the plaintiffs' properties) since 1986, but their passages over the plaintiffs' land have been few - his only between 8 and 12 times a year, and hers once or twice a month except when her sister Jill visits from Colorado. [Note 70] Those passages have been like the other lake homeowners' - quick, with no stops - and neither has ever seen Ms. Roscioli on her property. Most of their passages have been walks. Some of his have been bicycle rides. They have been too infrequent and too "unnoticeable" to meet the "notoriety" requirement of prescriptive easements. Accordingly, neither they personally, nor as appurtenant to their property, have proved a private or public prescriptive easement over the plaintiffs' land.
Tracy Murphy/110 Paradise Lane
Mr. Murphy is Dennis Murphy's brother. He has lived in his home at 110 Paradise Lane only since May 2005 - not long enough to meet the twenty years needed for an appurtenant easement even if the other requirements for such an easement were met.
He visited his brother Dennis' house on Lake Road prior to that time and, while there, would pass through the plaintiffs' property, generally to walk his children to the dam at the bottom of the lake, beginning when his son was around 10 (probably around July or August, 1996). He did not identify the number of times he did so, or when, but they would fail to support a claim for a personal easement. They began too late to satisfy the twenty-year requirement (the lawsuit was filed in June 2016, a use beginning in July 1996 would not be twenty years or more before that date), and there was no evidence that they were in any way "notorious." Rather, I presume they were like the others' - quick, non-stop, and could not reasonably be seen by a reasonably diligent homeowner, much less on a basis that would reasonably prompt the conclusion that the use was regular or continuous enough to require action. He has never seen Ms. Roscioli on her property while walking there.
Paul Wright/not a lake homeowner or resident
Mr. Wright lives in Beverly. He does not own a home on the lake and has never owned one. His sole connection with the lake is his friendship with Kathleen and Paul Harrington's sons and his visits to the Harrington home on Harrington Court, south of the plaintiffs' properties. These were frequent enough that he considers the Harringtons to be his "second parents" and the friendships were such that he, his wife, Tim Harrington, and Tim's wife now have apartments near each other in Somerville. He and Tim are both musicians and play in the same band.
Mr. Wright clearly does not have an appurtenant easement. He has no property at the lake. I find that he does not have a personal easement because he fails the "notoriety" requirement (his passages were quick, most by runs or mountain bike, taking seconds and leaving no trace), [Note 71] because he did not show that he had twenty years of regular or continuous use prior to June 2016 when the lawsuit was filed (he testified that his use began in 1996 but did not specify when; it is his burden, which was not met, to show that it was earlier than June), [Note 72] and because his use, if seen, would have been associated with the Harringtons, whose use, as discussed below, was by implied permission.
Norma Roy/75 Paradise Lane
Ms. Roy is an artist, born and raised in the Bronx. She acquired the vacant land at 75 Paradise Lane in December 1988, and the house she had built was ready for occupancy by February 1990. She lives there year-round.
Paradise Lane is on the far end of the lake from the plaintiffs' properties, so she would cross them only when walking on the loop. She was a middle-school teacher in Sturbridge before her retirement in 2009. She would walk the loop two or three times a week before she retired, for a brief time after retirement perhaps four or five, and now that she has a dog, maybe two. She assumed she could walk on any road, even those marked "private", because they were roads. She will not always walk a complete loop. Oftentimes she will walk part way and then turn around.
Ms. Roy is friends with the Casaubons (his sister and Ms. Roy both work at the Y). She has seen Ms. Roscioli on her property only once during the 28 years she has walked there. Ms. Roscioli was working in the roadway, and likely assumed that Ms. Roy was visiting the Casaubons.
Tracy Raposa/7 Lakewood Trail
Ms. Raposa purchased her property from Ms. Kotsifas in 2014 and thus, for appurtenant easement purposes, can "tack" onto Ms. Kotsifas' prior use associated with that property.
Because that use was not "prescriptive" however (as discussed above, it was understood as permissive until 2014), it does not help her, and she herself has not had the requisite twenty years, even personally. The significant day for that is June 24, 1996 - twenty years before the filing of the lawsuit. As Ms. Raposa testified, her personal use began in mid-2006 when she first moved to Sturbridge, became friends with several of the lake residents, and walked around the lake with them.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Judith & David Stevens/178 Lake Road
Ms. Stevens, 75 at the time of trial, has been at the lake since 1982. She and her husband David rebuilt the house in 1992, moving there permanently in 2001. She walks to relieve stress.
She testified that they "probably" crossed through the plaintiffs' property a few times on their way to the boat ramp and Italian Club at the south end of the lake, [Note 73] but most of their walking was in connection with loops of the lake. Those walks began in the mid-1990's. Ms. Stevens was apparently more active than her husband. She claimed she walked the loop as much
as five to six times a week at her peak; Mr. Stevens never walked more than once or twice a month. But none of it was sufficiently notorious to support a prescriptive claim. Two to four times a month is too infrequent in almost any context, and even the post-2001 five to six times a week is insufficient in the context of the character of the plaintiffs' land. As noted (many times) above, the test for notoriety is whether the activity is "pronounced" enough so that it would be seen by a reasonably diligent landowner in the context of the character of the land, and frequent ("pervasive") enough over the course of the prescriptive period so that the landowner would reasonably conclude that a right was being asserted and she would have to take steps to protect her own rights. This does not pass that test. Her walks, like the others, took approximately 30 seconds to cross the plaintiffs' land in a place where sightlines made it impossible to see the walk for any longer period. For people crossing without noise or trace, it would be extraordinarily difficult to know that they were there on any occasion, and even more difficult to know that they were there frequently enough over a long enough period of time, to cause the landowner to realize that protective steps needed to be taken. In short, it is beyond what the law expects of a reasonably diligent homeowner.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Barbara Gubitose/25 Glendale Road
Ms. Gubitose lives at the far north end of the lake, works full time in Boston, and either bicycles or walks around the lake on the weekends and holidays. Her children have walked or bicycled around it as well over the years. She is friendly with the Casaubons.
Unlike others, she has seen Ms. Roscioli while walking by her land, and they have waved to each other. She did not relate if this happened more than once, and it is likely that it did not.
In any event, on that occasion, Ms. Roscioli likely concluded that Ms. Gubitose was visiting the Casaubons and was thus on the roadway as of right.
That one sighting would not reasonably have alerted Ms. Roscioli to a larger issue: whether she needed to keep a closer look out for Ms. Gubitose, even if she could. Due to the character of the land and the nature of Ms. Gubitose's use, it is unreasonable to require that she have done so. Ms. Gubitose's walks and rides were like the others' - quick, no trace, and effectively unseeable - and thus she failed to meet the notoriety test. Notably, she gave no details of the number, frequency, or time frame of her passages through the plaintiffs' land. On that basis alone I cannot find that they were notorious.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Scott MacKenzie/24 Mt. Dan Road
This is a summer home, acquired from his parents. He gave no details about his passages through the plaintiffs' property - number, frequency, or time frame - and there is thus no credible foundation on which to find that his use met the prescriptive tests. He claims to have seen Ms. Roscioli "two or three times" gardening on her property when he has passed by, but I do not find that credible. Ms. Roscioli has no memory of ever seeing him. He is a BALA member and, even if she had seen him on an occasion or two, she could reasonably conclude that he was there to see the Casaubons.
Accordingly, neither he personally, nor as appurtenant to his property, has proved a private or public prescriptive easement over the plaintiffs' land.
Marion Reilly/3 Lakewood Trail
Ms. Reilly purchased her house on September 27, 1996, and all her use came after that. She thus fails to meet the twenty-year requirement for prescriptive easements. Moreover, I find the use she described (walking and running) to have been too intermittent and sporadic to meet the prescriptive test of continuity, and (for the same reasons discussed for others above) not notorious.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land.
Joshua Skowyra/312 The Trail
Mr. Skowyra purchased his property in October 2015, thus too recently to meet the twenty year requirement for prescriptive claims. He testified to earlier personal activities around the lake when he visited friends but did not specify what these were, where, when, or with what frequency.
Accordingly, neither he personally, nor as appurtenant to his property, has proved a private or public prescriptive easement over the plaintiffs' land.
Jacqueline Johnson/262-263 Big Alum Road
Ms. Johnson bought her house from the Nelson family in 2008, well short of the twenty year period required for prescriptive easements. There was no evidence of the prior uses of the Nelsons, so there is nothing for her to "tack."
She visited the lake before she bought the house, taking walks and lake cruises with her friend Marion Reilly, but no details were given and it is unclear whether any of that activity involved passing through the plaintiffs' properties. Because Ms. Reilly herself only came to the lake in September 1996 (less than the twenty-year prescriptive period), the activity on those visits would not meet the prescriptive test regardless of its type and frequency.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land. As previously discussed, she does not have an express or implied easement over the plaintiffs' land either.
Roger & Constance White/84 Paradise Lane
The Whites purchased their house, an un-winterized summer cottage, in 1990. They have walked around the loop since that time, presumably including the part through the plaintiffs' properties, but only sporadically and intermittently. Mr. White estimated that the maximum number of times he has walked was 8 times in a year, with some years as little as three, total. He prefers to water-ski, and who can blame him? Mrs. White gave no details about her walks, other than to say that she is joined once a year by their children. Their proof thus falls far short of the requirements of a prescriptive easement.
Accordingly, neither they personally, nor as appurtenant to their property, have proved a private or public prescriptive easement over the plaintiffs' land.
William Sanderson/85-86 Paradise Lane
Mr. Sanderson first came to the lake in 1946, and first walked around it in 1947. He is not much of walker, however. With the exception of 2001, a "stressful year" when he walked the loop perhaps as much as five times a week, he does not appear to have done so more than once or twice a year. The house is a summer house, so all his walks have been during that season.
According to Mr. Sanderson, he has seen only one person on the loop over the entire time he has walked it. He has seen "lots of wildlife, but not many people." A very early morning
walker, perhaps? (he did not say) At any rate, it is clear that his walking, even if every walk included a passage through the plaintiffs' properties, was too infrequent to be continuous or regular, and likely fails the notoriety test as well.
Accordingly, neither he personally, nor as appurtenant to his property, has proved a private or public prescriptive easement over the plaintiffs' land.
Denise Van Vooren/264 Big Alum Road
264 Big Alum Road is a small, un-winterized cabin. Ms. Van Vooren lives in Methuen and, when she comes to the lake, does not spend her time walking. In 54 years, she estimates that she has walked the loop less than 15 times total, and over the course of a summer might walk her dogs through the plaintiffs' properties on her way to the boat landing no more than five or ten times. There was no evidence that any of these walks were notorious. They were certainly not frequent, regular, or continuous. She has never met Ms. Roscioli, and Ms. Roscioli has never met her.
Accordingly, neither she personally, nor as appurtenant to her property, has proved a private or public prescriptive easement over the plaintiffs' land. As previously discussed, she does not have an express or implied easement over the plaintiffs' land either.
The Near Neighbor homeowners:
Katherine (Roy) Alexander and her mother Marjorie Roy/232 Roy Road
Mari Roy/222 Roy Road
Charles Roy/188 Lake Road (formerly of Roy Road)
Lisa Bachand/289 Clarke Road Extension
Suzanne Wheaton Wright/29 Glendale Road (formerly of Big Alum Road)
Joseph & Diane Veneziano/Julie & Chad Percival/Cara & Samuel Gilbert/240 & 242 Roy Road
Julie Morrill/268 Big Alum Road
Kathleen & Paul Harrington/14 Harrington Court
I have grouped these defendants together because they share a dispositive commonality: their relationship with the plaintiffs is one of implied permission, negating the adversity necessary for the accrual of prescriptive rights. Also, as previously discussed, none of them have express easements over the plaintiffs' properties, and their prescriptive claims to such use, like the prescriptive claims of all the others, are precluded by Kilburn and Bullukian.
Each is a near neighbor of the plaintiffs. 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, indeed, 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 v. Newman, 24 LCR 697 , 699 (2016) (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). 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). Here, the circumstances were such that, absent the current controversy that has made former friends bitter enemies, all of them would have acknowledged that nothing adverse was being asserted. In Ms. Roscioli's words, the thought would have been "ludicrous" to her.
Ms. Roscioli knows all the relationships in her corner of the lake - who is friends with who, who is babysitting who, who mows whose lawn, who is visiting their parents or grandparents, who is tutoring whose child, who is having health issues - and has been more than willing to accommodate them. Her neighbors know this. Trials have moments of truth. When Katherine (Roy) Alexander was asked why she believed she could walk through the plaintiffs' land, she responded "I assumed her permission was implied." Marjorie Roy, when asked the same question, gave the same answer: "It was always implied. I would have no reason to ask permission." Lisa Bachand described it as "a close knit community." Suzanne (Wheaton) Wright knew that Ms. Roscioli was friendly with her father. Her children have vacationed with Ms. Roscioli's children. The Venezianos' response to the letter from Ms. Roscioli's lawyer was "up until one year ago your client was okay [with us walking there]." When asked at trial whether that was permission, Dr. Veneziano said "A fair statement." He acknowledged that their letter to Ms. Roscioli's lawyer said nothing about prescriptive rights. When asked why she believed she could walk through the plaintiffs' land, Ms. Veneziano replied "since we were never stopped it was okay to walk there" - again, an acknowledgement that permission was needed but had been given. In her words, "We all thought we were friends." Ms. Roscioli bought lemonade from Julie Morrill's children. Ms. Roscioli's children rescued Ms. Morrill's children when their boat ran out of fuel on the lake. Ms. Roscioli gave Ms. Morrill a cooler of beer to celebrate when Ms. Morrill received her building permit, and called to warn her that a bobcat was in the woods. The Harringtons and Ms. Roscioli were both guests at the wedding of one of the Casaubon children. Charles Roy worked at the Rosciolis' restaurant. In 2015 he sent Ms. Roscioli an email asking for her permission to walk on the roadway through her property and, if she was not comfortable with him doing so, he would simply turn around. In these circumstances, no reasonable person in Ms. Roscioli's place would ever have concluded that these neighbor homeowners' walks on her land were adverse and accruing rights against her. I thus find that none of these neighbor homeowners, nor their properties, have a prescriptive right to cross the plaintiffs' land.
Conclusion
For the foregoing reasons, I find and declare that the Town has express easements to use the section of Big Alum Road that crosses the plaintiffs' properties for fire access and to maintain the sewer line, but there are no public rights of access over any part of the plaintiffs' land. The Casaubons have an express right to use the plaintiffs' section of Big Alum Road for access to their home. So too do those visiting the Casaubons at the Casaubons' express invitation, but only for such visits. With only these exceptions, each of the defendants and intervenor-defendants is ENJOINED from crossing the plaintiffs' land. Other than the Town and the Casaubons (and them only to the extent of their express easements), none of the defendants or intervenor-defendants has an easement of any kind to cross the plaintiffs' land - express, implied, or prescriptive, either appurtenant to a property or personal to them individually.
The plaintiffs have asked that they be allowed to install fences or other barriers across their section of Big Alum Road to enforce this declaration and injunction. I deny that request. Without the Casaubons' express assent, which they have indicated they do not give, any such fence or barrier would impermissibly impair the Casaubons' express easement right for them and their guests to go to and from their house. Giving them a key or electronic opening device does not solve the problem, since locking and unlocking the fence or barrier may be needed at all times of the day or night, in all weathers, and would be needed multiple times for gatherings with multiple guests. Such fences or barriers would also impermissibly impair the Town's right of access over the road, particularly for plowing.
This does not mean that the plaintiffs have no effective remedy. I assume the good faith of the parties, and that the defendants will honor the injunction. If any of them do not, remedies for trespass exist, civil and criminal, and may be applicable. See, e.g., G.L. c.266, §120.
Judgment shall enter accordingly.
The right of the Town to a fire lane across the Rice, Roscioli and Casaubon properties is contained in correspondence between the Town and the then-owner of those properties, Roland Rice (Sept. 27, 1939; Trial Ex.. 206), to which Mr. Rice gave his written assent (Sept. 25, 1940). The Town's letter confirmed that the road was private, that it would be marked as such, that it would have a bar across it at the dead-end, and that it would be used "only in case of fire." Trial Ex. 206.
In the past (1997), when the Town wanted to do certain repairs to Big Alum Road, it entered into written Agreements Relative to Private Ways with the Big Alum Road landowners, in which it acknowledged that "The Way [Big Alum Road] is a private way within the Town of Sturbridge" and that its repairs were temporary ones See, e.g., Trial Ex. 205.
As the Town has acknowledged, none of these grants contain a public right of access. See n. 53, infra.
VIRGINIA RICE ROSCIOLI and BARBARA RICE, [Note 1] vs. WILLIAM SANDERSON, PAUL ABRAHAMSON, DONALD ALARIE, NICHOLAS ALARIE , SUZANNE ALARIE, KATHERINE ALEXANDER, NANCY ALLAN, ROBERT ALLAN, ANN MARIE ARGITIS, JOHN ARGITIS SR., JOHN ARGITIS JR., CASSANDRA ARRIAZA, JORGE ARRIAZA, LISA BACHAND, JENNIFER BAILEY, WILLIAM BAILEY, DALAINE BARIL, MADISON BARIL, ROBERT BARIL, DAVID BELLEROSE, LORRAINE BELLEROSE, MARY BELLEZZA, LINDA BEMIS, HEATHER BENNETT, ALLEN BIRON, CHELSEA BLAIR, KEITH BLANCHETTE, LESTER BOMBA, LYNNE BOMBA, JEFFREY BURDICK, PATRICIA BURDICK, JOHN CAIN, KAREN CAMPBELL, LEE CAPPOLA, WENDY CAPPOLA, THOMAS CLARK, JOHN CLOUTIER, ERNEST COLGONESI, JUDITH COLGONESI, LINDA CONNLY, MARCIA CONRAD, SCOTT CONRAD, POLLY CURRIER, JAMES DALEY, KATHLEEN DALEY, ANN MARIE DAMIAN, JAMES DAMIAN, FRANK DANNA, KENDALL DANNA, SABRINA DANNA, JENNIFER DEPREZ, ELIZABETH DETARANDO, MICHAEL DETARANDO, PHYLLIS DOMASH, RICHARD DOMASH, ELIZABETH EISOLD, LAURA ELIASON, VALERIE ELIASON, SUSAN EMERSON, WAYNE EMERSON, DONNA FALCONE, JOHN FALCONE, MARRINA FALCONE, ROCCO FALCONE, RICHARD FARLAND, LORI FAXON, THOMAS FAXON, BRIAN FLAVIA, DEBORAH FLAVIA, DARCY FOLEY, JOHN FOLEY, KARI FREELAND, TINA GAGNON, GARY GALONEK, KRISTIE GALONEK, REBECCA GALONEK, SARIN GENDRON, CARA GILBERT, SAMUEL GILBERT, BARBARA GIONFRIDDO, MICHAEL GIONFRIDDO, KELLY GONYA, SANDRA GREGOIRA, BARBARA GUBITOSE, JAKE GUBITOSE, JOSEPH GUBITOSE, TERRI GUETTI, JEFF HAFFTY, HALEY HANSON, SUSAN HANSON, THOMAS HANSON, KATHLEEN HARRINGTON, PAUL HARRINGTON, TIMOTHY HARRINGTON, BARBARA HITCHCOCK, CYNTHIA HOLLINS, JAMES HOLLINS, CAROL HOOKER, MICHAEL HOOKER, MYRON HOOKER, JULIE HORRIGAN, MEREDITH HOWLETT, PAMELA HOY, MARY HOYE, MICHAEL HOYE, ELINOR IVES, JOSHUA IVES, ALDEN JOHNSON, DANIEL JOHNSON, JACQUELINE JOHNSON, PATRICIA JOHNSON, SARAH JONES, CATHY KADIK, MATTHEW KIBBE, PETER KOTSIFAS, SANDRA KOTSIFAS, BARBARA LAROCHELLE, SUZANNE SANDERSON LEBEL, ROBERT LEBOW, MATTHEW LEMANSKI, MICHAEL LEMANSKI, SANDRA LEMANSKI, SCOTT MacKENZIE, NANCY MANGARI, IAN McGRATH, MOIRA McGRATH, JANIS METOXEN, MARY LOU MOORE, PATRICIA MORIN, SUSAN MORIN, JULIE MORRILL, LINDA MUNSON, DENNIS MURPHY, PATRICIA MURPHY, STEPHEN MURPHY, TRACY MURPHY, SEAN NOONAN, JOHN OUTLAND, KAREN PARKER, WILLIAM PARKER, DENISE PASHKO, GARY PASHKO, ALAN PEPPEL, ELIZABETH PEPPEL, CHAD PERCIVAL, JULIANNE PERCIVAL, CLIFFORD PHANEUF, CHRISTOPHER PHILLIPS, MARTHA PORTER, MARGARET PREDELLA, RICHARD PREDELLA, ANGELA PRENOSIL, EDWARD PRENOSIL, DEBRA QUINN, SCOTT QUINN, TRACY RAPOSE, GUSTAVUS REED-IDE III, HEIDI REGER, JOSEPH REGER, AMBER REILLY, MARION REILLY, THOMAS REILLY, ANTHONY RENO, ANTOINETTE RENO, JASON RICCI, MARIE RICCI, CHRISTOPHER RIZA, NANCY ROBERGE-CALLERY, BRIAN ROY, CHARLES ROY JR., JENNIFER ROY, JILL ROY, JOHN ROY, MARI ROY, MARJORIE ROY, NORMA ROY, PAUL ROY, EVAN SANDERSON, LISA SANDERSON, MARYLOU SANDERSON, SCOTT SANDERSON, WESLEY SARGENT, KATHLEEN SCOBLE, MELISSA SHUFRO, JAMIE SKOWYRA,