LAWRENCE E. KITCHEN, GLORIA V. KITCHEN, SCOTT J. KITCHEN and LAURA KITCHEN v. URBAIN E. PARISEAU and PATRICIA D. PARISEAU, TRUSTEES OF THE PARISEAU FAMILY REVOCABLE TRUST

Plaintiffs Lawrence E. Kitchen, Gloria V. Kitchen, Scott J. Kitchen and Laura Kitchen (collectively, "the Kitchens," and individually by their first names), the owners of property located at 150 Briggs Road, Westport, Massachusetts ("the Kitchen Parcel"), brought this action on October 22, 2018 against defendants Urbain E. Pariseau and Patricia D. Pariseau (collectively, "the Pariseaus" and individually by their first names), Trustees of the Pariseau Family Revocable Trust, as the owners of property located at 156 Briggs Road, Westport, Massachusetts ("the Pariseau Parcel") and abutting the Kitchen Parcel. The Kitchens' complaint alleges that the Kitchens have the benefit of an easement by prescription over a portion of the Pariseau Parcel (Count I), have adversely possessed a portion of the Pariseau Parcel (Count III), have been damaged by the Pariseaus' removal of trees and other plantings within the area that the Kitchens adversely possessed (Count IV), and have been damaged by the Pariseaus' erection of a fence that blocks their prescriptive easement (Count V). The Kitchens also seek a declaration of their easement rights over the Pariseau Parcel (Count II). An application for the issuance of a preliminary injunction was heard and denied by this court (Lombardi, J.) on November 16, 2018.

The court took a view of the Kitchen Parcel and the Pariseau Parcel on January 14, 2020. This matter was tried over two days on January 15 and January 16, 2020 at the Barnstable Superior Courthouse. The Kitchens called Gloria, Mr. Lawrence E. Kitchen, III ("Lawrence III"), Ms. Janet Souza, Mr. Robert Dupont, Laura and Scott as witnesses. In addition, the Kitchens submitted the deposition transcript of Lawrence as an exhibit without objection. The Pariseaus called Mr. Ralph Souza, Urbain and Patricia as witnesses. Seventy-seven exhibits were agreed to and admitted in evidence at the beginning of the trial and an additional two exhibits were marked during the course of trial. The parties submitted post-trial briefs on February 28, 2020. For the reasons set forth below, this court finds that the Kitchens have met their burden of establishing adverse possession to that portion of the Pariseau Parcel fenced off by the Kitchens in or about 1979, as further defined below, and that they have established a prescriptive easement, limited as described below, over the way on the Pariseau Parcel.

FINDINGS OF FACT

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

The Parties And The Property

Gloria and Lawrence are both in their 80s and have been married for 61 years. Their children are Lawrence III, age 60, and Scott, age 57, who is married to Laura. By deed dated December 6, 2017 and recorded in the Bristol South Registry of Deeds ("the Registry") at Book 12297, Page 314, Gloria and Lawrence deeded the Kitchen Parcel to Scott and Laura, reserving a life estate in themselves. [Note 1] Ex. 4.

Urbain, age 78, is Gloria's brother and is married to Patricia. Joseph Bastile ("Mr. Bastile") was Gloria's and Urbain's grandfather. He owned the Kitchen Parcel and the Pariseau Parcel before they were divided (that combined property is referred to herein as "the Bastile Parcel"), having acquired it by deed dated February 10, 1921 and recorded in the Registry at Book 513, Page 366. See Ex. 2.

Mr. Bastile lived at the Bastile Parcel prior to moving to an assisted living facility in the 1960s. He had a small home with three or four rooms and a driveway off of Briggs Road near what is today the common boundary between the Kitchen Parcel and the Pariseau Parcel. The parties dispute whether the driveway to Mr. Bastile's home is in the same location as the current way to the Pariseaus' home on the Pariseau Parcel. That dispute does not need to be resolved by the court because whatever its location, rights over it in favor of the Kitchen Parcel could not begin to accrue until after the Pariseau Parcel was severed from the Kitchen Parcel, as set forth below.

Urbain graduated from high school in 1960 and joined the United States Marine Corps in 1961. He was discharged in February 1964 and lived with his parents until May 1964, when he married Patricia. Meanwhile, Lawrence had graduated from high school in 1955 and joined the United States Navy, where he remained until his discharge in 1958. Lawrence married Gloria in or about 1959 and worked for a manufacturing concern for one year before going to work at a railroad company. Lawrence would spend the rest of his career, approximately 40 years, working for five different railroads, first as a fireman and then as an engineer.

Urbain described his relationship with his grandfather, Mr. Bastile, as close. He spoke with his grandfather about the Bastile Parcel in the 1960s. Urbain did not then have the funds to purchase the Bastile Parcel. As a result of discussions in the mid-1960s among Mr. Bastile, Gloria and Lawrence, and Urbain, it was understood that Mr. Bastile would sell the Bastile Parcel to Gloria and Lawrence and they would later deed a portion of the Bastile Property to Urbain.

Gloria and Lawrence acquired the Bastile Parcel as one undivided lot totaling 5.5 acres from Mr. Bastile by deed dated October 7, 1966 and recorded in the Registry at Book 1539, Page 889. Ex. 2. The consideration for that transfer was $1,900, $1,400 of which satisfied a lien against the property for Mr. Bastile's care and $500 of which was paid to Mr. Bastile. At that time, Mr. Bastile was in his 90s and living in a nursing home.

Gloria and Lawrence constructed their existing home on the Bastile Parcel and began residing there in 1968. Urbain assisted his sister and brother-in-law in the construction of their home, although the extent of his assistance is disputed.

Some six years later, Gloria and Lawrence deeded the Pariseau Parcel to Urbain and Patricia by deed dated May 3, 1972 and recorded in the Registry at Book 1639, Page 1182. Ex. 3. This deed recites that "consideration for this deed is love and affection." Id.

The Pariseau Parcel is shown on a plan entitled "Plan of Land in Westport, Mass. for Lawrence E. Kitchen Jr. et ux. Scale 1" = 40' Mercer Engineering Corp. - Fall River" that bears the stamp of the Town of Westport dated April 19, 1972 stating "Approval Not Required" ("the 1972 Plan"). Ex. 1. The Pariseau Parcel is shown on the 1972 Plan as a 40,000 square foot lot accessed by a 227.87 foot long "Proposed 40 ft. Road" ("the Proposed Road") having 40.47 feet of frontage on Briggs Road at its northern terminus and a 50-foot "turnaround" at its southern terminus. The square footage of the Proposed Road is included within the 40,000 square foot area of the lot shown on the 1972 Plan. An earlier plan, showing a proposed subdivision of the Bastile Parcel into a 37,000 square foot lot and 4.7± acres of "remaining area," Ex. 41, was rejected by the local board because, according to Urbain, it did not contain sufficient square footage. As a result, Gloria and Lawrence agreed to increase the size of the lot to that shown on the 1972 Plan. Urbain testified that there were somewhere between five and eight meetings over several years before the 1972 Plan was approved and that Lawrence attended all those proceedings as the owner of the property being subdivided.

Lawrence understood that he was conveying a 40-foot wide road that passed by the rear of the Kitchen Parcel where the garden was located, and understood that that road would provide access to the rear of the Kitchen Parcel, consisting of some three and one half acres. According to Lawrence, "when I gave [Urbain] that road, it was supposed to be – he was supposed to put a 40-f[oo]t road up to my garden with a 50 foot circle when I gave him the land because I said I ain't going to get landlocked. That's why I gave him 20 feet of my land." Ex. 78 at 80:2-7. Lawrence did not learn that the deed to Urbain and Patricia did not reserve him rights over the Proposed Road until 2017. Id. at 81:5-8.

After the Pariseaus obtained title to the Pariseau Parcel, they constructed their home. The parties dispute whether, as part of that construction, the Pariseaus installed a new way to their home within the boundaries of the Proposed Road or whether they improved an existing way. There is no dispute as to the location of the way, portions of which are shown in a number of photographs marked at trial, most notably Exs. 6, 21-23, 30. It is referred to hereinafter as "the Way."

The Use Of The Way

When Gloria and Lawrence constructed their home in the late 1960s, they installed electric heat. Within a year after moving in, they installed a wood stove and starting heating with wood, which they continue to do to the present. Gloria and Lawrence use between seven and fifteen cords of wood each winter. [Note 2] In the 50 years since turning to wood heat, Lawrence testified that he has never purchased wood for his stove. Instead, as testified to by all of the witnesses called by the Kitchens, wood in various conditions was brought by truck and/or trailer up the Way to the rear of the Kitchen Parcel. Lawrence III and Scott both testified to an opening from the Way onto the Kitchen Parcel approximately 200 feet south of Briggs Road, shown on Ex. 21, where the trucks would turn off the Way and onto the Kitchen Parcel.

Ms. Souza testified to seeing wood being transported over the Way from 1985, when she first moved into her home across the street from both the Kitchen and Pariseau Parcels, and continuing thereafter. Mr. Dupont testified to seeing trucks and trailers hauling wood over the Way starting in 1969, when he and his family moved into the property directly across the street from the Kitchen Parcel and continuing until the Pariseaus installed a fence that blocked the turn onto the Kitchen Parcel, an event that occurred in 2018.

Lawrence testified to an event some 20 years ago, when he hauled 40 cords of wood from another property to the rear of the Kitchen Parcel, making as many as 15 trips a day over the Way. He also testified to receiving a number of large trees from neighbors, who had hired a tree service to take the trees down on their properties and cut them into "chunks," which were then brought to the Kitchen Parcel to be processed into firewood. Lawrence also recalled getting some 40 large trees that had been killed by gypsy moths. Scott, who started a landscaping business in 2004, also brought trees that he had removed from his customers' properties down the Way to the rear of the Kitchen Parcel to be processed for use as a heating source. Patricia testified to seeing Lawrence III and Scott frequently bringing wood for their father. According to Patricia, they would drive up the Way, back on to the Kitchen Parcel and then throw the wood off of the truck.

According to Scott, unprocessed wood was dumped in a pile at the end of the garden on the Kitchen Parcel, and later cut and stacked and then brought to the front of the Kitchen house as needed. Wood was carried to the house by truck and trailer or wheelbarrow over the Way. At one time, there were as many as 10 to 15 cords of wood stored at the rear of the Kitchen Parcel.

In addition to wood from trees, Lawrence routinely brought dunnage [Note 3] home from the railroad. All of the sheds in the rear of the Kitchen Parcel, including that built by Lawrence and Urbain to house two cows in the mid-1970s, a chicken coop, a pheasant coop and a turkey coop, were constructed out of dunnage. Gloria and Lawrence also used dunnage for heating their home. In addition, Lawrence III and, to a lesser extent, Scott hauled "cut outs," the wood left over from making spindles and used to start the fire in the wood stove, by truck and trailer over the Way. That material was stored across from the stacked wood, as shown in Ex. 21.

Most of the work of hauling, cutting and stacking wood was done in the cooler months. During the spring, summer and fall, the Kitchens have an extensive garden at the rear of the Kitchen Parcel. Work on the garden begins in early April and lasts until the first frost. Lawrence, who routinely took six weeks of vacation during the summer while he was still working, passed over the Way one to four times a day, carrying water, pushing a rototiller and otherwise tending to his garden. Since his retirement in about 2000, Lawrence has passed over the Way three or four times a day during the gardening season to reach the garden at the rear of the Kitchen Parcel. Urbain testified that Lawrence owned a number of trucks over the years and that Urbain saw Lawrence driving the trucks over the Way to go back and forth to his garden. Photographs of the garden at various times were marked as Exs. 15, 19 - 20, 22 and 53.

In addition to the garden, Lawrence and Urbain each raised a cow for slaughter in or about 1976, and Lawrence raised several more thereafter, along with a number of pigs also raised for slaughter. Those animals were kept in a shed and enclosure at the rear of the Kitchen Parcel adjacent to the garden area. Food and water for the animals were brought in over the Way. In addition, Lawrence and his sons kept chickens, pheasants and turkeys at the rear of the Kitchen Parcel. Lawrence stopped raising animals after Lawrence III and Scott went into the service in or about 1979. Photographs of the various animals housed at the rear of the Kitchen Parcel were marked as Exs. 8 - 14, 35 - 37, 54 - 55, 72.

In addition to using the Way to access the rear of the Kitchen Parcel, Lawrence III and Laura testified to using the Way and the rear of the Kitchen Parcel to turn around, rather than to back out of the Kitchen Parcel onto Briggs Road. Lawrence III testified to using the Way to turn around when he trailers boats and Laura testified to using the Way occasionally as a turnaround. Lawrence III currently has a 16-foot boat that he regularly uses for quahogging with his father, and used the Way as a turnaround before the Way was fenced in 2018. Lawrence also owned a 23-foot boat that he trailered on the Way for many years before selling it about ten years ago.

From approximately 1984 until 1991, Scott kept a 27-foot long Dodge camper at the Kitchen Parcel, which he used on weekends during the summer season. During the summer, the camper was parked at the front of the Kitchen Parcel, either on the Kitchen Parcel or on the Pariseau Parcel adjacent to the Way. During the winter, Scott would move the camper over the Way in order to store it at the rear of the Kitchen Parcel. Photographs of the camper at various locations on the Kitchen Parcel and the Pariseau Parcel were marked as Exs. 24 - 27.

Since Scott started his landscaping business in 2004, he has also brought brush and leaves from his customers' properties to the rear of the Kitchen Parcel over the Way to be used as compost. Ex. 47 shows a brush pile burning at the rear of the Kitchen Parcel. In addition, Scott acquired three tractors, in 2005, 2010 and 2016, which he keeps at the Kitchen Parcel. Scott has traversed the Way with these tractors.

According to Lawrence, he used the Way "over 1,000 times in the past twenty years." Ex. 78 at 94:18-21. Lawrence III testified that he had driven over the Way hundreds of times since he was a child. Scott testified to traversing the Way on a dirt bike as a child. He and his cousin would go over the Way, then over the Pariseau Parcel to reach what Scott called the "stage coach road." Later, once he had his driver's license, Scott drove his own cars and his Dodge camper over the Way and parked along the side of the Way. Both Urbain and Patricia testified that they were aware of the Kitchens' use of the Way and did not have a problem with it so long as the Kitchens did not block the Way.

There was also testimony from Gloria, Lawrence III and Scott about mowing the lawn on the Pariseau Parcel up to the Way over many years. Urbain and Patricia also testified to mowing and fertilizing the same area to the east of the Way and abutting the Kitchen Parcel. In or about 1979, Lawrence III erected a fence along the Way as it abutted the garden area at the rear of the Kitchen Parcel, terminating at the turn off onto the Kitchen Parcel. It is shown in Ex. 22. Urbain and his sons removed the fence in 2018, when Urbain installed his own fence along the length of easterly boundary of the Proposed Road.

Relations between the Kitchens and the Pariseau were described by members of both families as good until 2018, when Scott constructed a 30 foot by 40 foot garage on the Kitchen Parcel, located off of the Way. The Westport building inspector, Mr. Ralph Souza, testified that concerns were raised by the Pariseaus as to the access to the new garage, and Scott reported to Mr. Souza that access would be by a new driveway on the Kitchen Parcel. Urbain's 2018 construction of a fence along the property line between the Kitchen Parcel and the Pariseau Parcel insures that result for now.

DISCUSSION

At the outset of trial, all parties agreed that the principal issues to be resolved at trial were (1) whether the Kitchens have an easement by prescription over some portion of the Way, (2) whether the Kitchens have acquired title to some portion of the Pariseau Parcel to the east of the Way abutting the Kitchen Parcel, and (3) whether, if either issue is resolved in the Kitchens' favor, the Pariseaus committed a trespass by constructing a fence along the property line between the Kitchen Parcel and the Pariseau Parcel that blocks the Kitchens' access to the Proposed Road and to the Way. The court's rulings on those issues are as follows.

The Easement By Prescription Over The Way

The Kitchens claim an easement by prescription over the Way from its intersection with Briggs Road to the turn off onto the Kitchen Parcel shown on Ex. 21 approximately 200 feet to the south ("the Turn Off"). The creation of an easement by prescription is governed in part by G.L. c. 187, §2, which provides that "[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years." The common law requires "clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous for a period of no less than twenty years." Smaland Beach Association v. Genova, 94 Mass. App. Ct. 106 , 114 (2018), quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); accord Ryan v. Stavros, 348 Mass. 251 , 263 (1964) ("There was no open, notorious, continuous and adverse use for twenty years."); Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003) ("As with adverse possession, the use must be open, notorious, continuous and adverse.") (citations omitted). Unlike claims of adverse possession, there is no requirement that the use be exclusive under a claim of easement by prescription. See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) ("It is not necessary, on the other hand, for one claiming an easement by prescription to show that his use has been 'exclusive' in that sense."); Boothroyd, 68 Mass. App. Ct. at 44 n.9 ("A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement."). "Whether the elements of the claim have been satisfied is, in a given case, essentially a factual question for the trial court." Boothroyd, 68 Mass. App. Ct. at 41 n.3 (citations omitted). Accord Martha's Vineyard Land Bank Comm'n v. Taylor, 2018 Mass. App. Unpub. LEXIS 518.

"The burden of proving every element of an easement by prescription rests entirely with the claimant." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009), quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Accord Boothroyd, 68 Mass. App. Ct. at 44 ("John, as the claimant, bears the burden of proof on each and every element mentioned above."); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) ("each plaintiff has the individual burden of establishing a prescriptive right of use of the beachfront of lots 10 and 11."). "[L]ongtime, continuous use, spanning more than twenty years, trigger[s] the presumption that the use was nonpermissive." Smaland, 94 Mass. App. Ct. at 115, citing Houghton, 71 Mass. App. Ct. at 836, which in turn quotes Ivons-Nispel, Inc., 347 Mass. at 763. Accord Rotman, 74 Mass. App. Ct. at 589, quoting Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-531 (1987) ("The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained."). "Once the presumption arises, the landowner has the burden of rebutting it by showing that the use was permissive." Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827 (1981).

"To be 'open,' the use must be without attempted concealment." Boothroyd, 68 Mass. App. Ct. at 44. "For a use to be notorious, it must be sufficiently pronounced 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. "The principle underlying the open and notorious requirements is simply to provide the true owner of the servient estate with constructive notice of adverse use." Halfenger v. Cofield, 2017 Mass. App. Unpub. LEXIS 379 at *4-5. Accord Lawrence v. Town of Concord, 439 Mass. 416 , 420 (2003) quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955) ("To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.").

"The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Martha's Vineyard Land Bank, supra at *5, quoting Tinker v. Bessel, 213 Mass. 74 , 78 (1912). In that regard, the Houghton court's reliance on Kilburn v. Adams, 48 Mass. 33 (1843), a case involving open and unenclosed property, is instructive: "because of the difficulty in overseeing and monitoring the use of open and unenclosed land, claimants of adverse rights in property must show 'some decisive act, indicating a separate and exclusive use, under a claim of right . . . open and ostensible, and distinguishable from that of others.'" 71 Mass. App. Ct. at 841, citing Kilburn, 48 Mass. at 39. In addition, "[b]ecause the requirement of open and notorious use 'is intended only to secure to the owner a fair chance of protecting himself,' Foot v. Bauman, 333 Mass. 214 , 218, 129 N.E.2d 916 (1955), a property owner's actual knowledge of a claimant's adverse use of the property satisfies this element." White v. Hartigan, 464 Mass. 400 , 417 (2013).

To be "continuous" does not require use throughout the year. Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) ("Seasonal absence of the plai[n]tiff and his predecessors from their summer residence did not require a finding that the adverse use was not continuous."); Lawrence v. Houghton, 296 Mass. 407 , 409 (1937) ("The fact that the land and the road were not used in the winter did not destroy the continuity of the use of the road for the purposes of prescription"); Houghton, 71 Mass. App. Ct. at 838 n.11 ("[m]ere seasonal use does not defeat a claim for prescriptive easement rights") (citations omitted). In addition, a "temporary intrusion or occasional trespass by a stranger does not interrupt the running of the statute on behalf of an adverse occupant." Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985). However, use that is "intermittent and disjointed in time," Boothroyd, 68 Mass. App. Ct. at 45, or "sporadic," Houghton, 71 Mass. App. Ct. at 841, or "few, intermittent and equivocal," Ryan, 348 Mass. at 262 (in context of an adverse possession claim), quoting Parker v. Parker, 83 Mass. 245 , 247 (1861), does not suffice.

For a use to be adverse, the owner of the dominant estate must act in disregard of the rights of the owner of the servient estate. As stated by the Supreme Judicial Court in Ryan:

There was no recognition by the plaintiffs of authority in the defendant to prevent or permit continuance of the use. It is the nonrecognition of such authority at the time a use is made which determines whether it is adverse; and permissive use is inconsistent with adverse use. Restatement: Property, §458. Am. Law of Property, §§8.53-8.54.

348 Mass. at 263. The acts on which the claimant relies must be "clear and unequivocal." Houghton, 71 Mass. App. Ct. at 842, quoting L. Jones, A Treatise on the Law of Easements, Baker, Voorhis & Co., New York 1898, §285, at 235 ("To prove the use to be adverse, it is not sufficient to show an intention alone to claim it as of right, but that intention must be manifest by acts of clear and unequivocal character that notice to the owner of the claim might be reasonably inferred."). And "[p]ermission by the owner - even implied permission - negates the claimant's 'adversity,' but the owner's acquiescence to a claimant's clearly adverse acts does not." Halfenger, supra, quoting Houghton, 71 Mass. App. Ct. at 836 (emphasis in original).

"Historically, the existence of a familial relationship between claimants has been a factor in determining whether possession of land is adverse, but we have never applied a presumption or inference of permissive use arising from a familial relationship." Totman v. Malloy, 431 Mass. 143 , 146 (2000) (citations omitted). Among other reasons, "[w]ere we to recognize such a presumption, related claimants would be required to provide additional proof beyond that needed for similarly situated unrelated parties." Id. Such a presumption would also "encourage related claimants to provide evidence of family strife, rewarding those who do by making it more likely that they be granted title by adverse possession" and "would necessarily require courts to evaluate a claimant's state of mind, an evaluation that has been eliminated from the elements of adverse possession." Id. See also Lantern Lane House, Inc. v. Hummel, 2017 Mass. App. Unpub. LEXIS 342 at *5-6 ("we decline to conclude that evidence of a friendly or close relationship between the parties in the present case, without more, requires an inference of permissive use and defeats the otherwise applicable presumption of adversity.").

Here, the Kitchens have provided evidence sufficient to establish continuous, open and notorious, adverse use of the Way for more than 20 years. By no later than 1976, the Way had been constructed and was being used by the Kitchens, some 42 years before the Pariseaus installed their fence and the Kitchens filed this lawsuit. The Kitchens' use of the Way for more than 20 years gives rise to the presumption that their use was under a claim of right and adverse, and that they have acquired an easement by prescription over the Way. Even in the absence of the presumption, however, the Kitchens have met their burden of proof.

The Kitchens' use was open and notorious, a factor that is established by the Pariseaus' actual knowledge of the Kitchens' use. Both Urbain and Patricia testified that they were aware of the Kitchens' use of the Way and did not object to it so long as the Kitchens did not block the Way. Urbain testified to seeing Lawrence driving the various trucks that Lawrence owned over the years back and forth over the Way to reach his garden. Urbain also testified to seeing trucks with trailers loaded with wood going in and out over the Way. Urbain also knew that Lawrence was using the Way to bring in cows to the rear of the Kitchen Parcel in the mid-1970s and using the Way to bring food and water to them. He also knew that Lawrence used the Way to haul wheelbarrows full of wood from the rear of the Kitchen Parcel to the Kitchens' house. Patricia testified to seeing Lawrence III and Scott bringing wood up the Way to the rear of the Kitchen Parcel "frequently."

The Kitchens' use was also under a claim of right. Lawrence testified at his deposition that he understood the Proposed Road on the 1972 Plan would provide access to the rear of the Kitchen Parcel, containing some three and one-half acres of land. That understanding is supported by the 1972 Plan, which shows a "Proposed 40 ft. Road" with a 50-foot turnaround at its end, neither of which were necessary to the Pariseau Parcel but which would provide access to the rear of the Kitchen Parcel if that right of use had been reserved. According to Lawrence, it was only in 2017 that he learned that the 1972 deed from Gloria and Lawrence to Urbain and Patricia did not reserve rights over the Way for the benefit of the Kitchen Parcel.

As a result of the Kitchens' evidence, the burden of proof shifted to the Pariseaus to prove that the Kitchens' use was permissive. In the context of prescriptive easements, permission must be "more than mere acquiescence (see MacLeod v. Davis, 290 Mass. 335 , 339) and . . . amount[] to an implied license. Kilburn v. Adams, 7 Met. 33 , 39. Prescott v. Prescott, 175 Mass. 64 , 66. See Robert v. Perron, 269 Mass. 537 , 541." Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). "[A]dverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc., 347 Mass. at 763 (confirming prescriptive right to use beach after finding that the defendants never received permission to use plaintiff's land). As an example of acquiescence in the context of a claimed easement by prescription to use a drain, the MacLeod court stated that "[t]he subsidiary finding that 'the respondent [defendant] and her predecessors in title during these years never spoke to the complainant [plaintiff] or any of the other joiners objecting to the use of the drain,' tends in favor of the conclusion of the master rather than against it, for it tends to prove acquiescence, a necessary element in prescription." 290 Mass. at 339.

Here, the only evidence of express permission was Urbain's testimony that he told Lawrence that Lawrence could go over the Way to transport the cows and food for the cows, which would have been in or about 1976. Urbain denied telling Lawrence that Lawrence could use the Way to transport wood. Both he and Patricia testified about their knowledge of the Kitchens' use of the Way and that they did not have an issue with that use so long as the Kitchens did not block the Way. Lawrence III testified that neither Urbain nor Patricia stopped him from using the Way, spoke with him about using the Way, or gave him permission to use the Way. Scott's testimony was to the same effect, with the exception that he was served with a notice not to trespass on the Pariseau Parcel in or about July 2018. See Ex. 29. On these facts, this court finds that the Pariseaus acquiesced in the Kitchens' use of the Way, not that the Kitchens' use was permissive.

Having determined that the Kitchens have a prescriptive easement over the Way from Briggs Road to the Turn Off onto the Kitchen Parcel, the question as to the scope of that easement remains. "'The extent of an easement arising by prescription, unlike an easement by grant . . . is fixed by the use through which it was created "[T]he use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest." [Nevertheless,] the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use.' Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962), quoting Restatement of Property §477 comment b (1944)." Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982). The evidence in this case establishes the Kitchens' use of the Way over decades on foot and by multiple kinds of vehicles (trucks, trucks and trailers, trucks and boats, a 27-foot camper, cars, dirt bikes, tractors) to access the Turn Off to the rear of the Kitchen Parcel. It does not support the use of the Way to access Scott's newly constructed garage.

Adverse Possession Of The Area Between The Kitchen Parcel Boundary Line And The Way

The Kitchens also claim ownership by adverse possession of that portion of the Pariseau Parcel between the Way and the Kitchen Parcel boundary line from Briggs Road to the Turn Off. As with their prescriptive easement claim, the burden is on the Kitchens to establish that their use of the claimed area must have been actual, open and non-permissive for a continuous period of 20 years. Totman, 431 Mass. at 145. In addition, for adverse possession, the Kitchens must also establish that their use was exclusive. Id. "Such use must encompass a 'disseisin' of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993) (citations omitted). In addition, as noted above, while the existence of a familial relationship between the claimants is a factor in determining whether possession of land is adverse, it is only one in a number of factors. Totman, 431 Mass. at 145 ("Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.").

With the exception of the area that was fenced by Lawrence III in or about 1979 and included as part of the garden area at the rear of the Kitchen Parcel, shown in Ex. 22, the Kitchens have failed to establish that their use was exclusive. While Gloria, Lawrence III and Scott testified to mowing the claimed area over the years, so did Urbain and Patricia. Urbain also testified to fertilizing the area along either side of the Way at least twice a year. The parking of vehicles was, according to the evidence at trial, sporadic at best and insufficient to establish adverse possession. Miller v. Abramson, 95 Mass. App. Ct. 828 , 831 (2019) ("Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession.") quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) which in turn quotes Parker, 83 Mass. at 247. Leaving aside the fenced area, the Kitchens did not meet the standard for actual use of the claimed area: "Did the actor make 'changes upon the land' that constitute 'such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership?'" Peck, 34 Mass. App. Ct. at 556.

In contrast, the Kitchens have carried their burden of proof with respect to that portion of the claimed area within the fence installed by Lawrence III. The fence was open and obvious as was the Kitchens' use of the area behind the fence for a garden with various plantings, the fence having been constructed from see-through wire sheep fencing. There was no evidence that anyone other than the Kitchens used this area. And, there was no evidence that the Pariseaus granted the Kitchens permission to fence and use that area.

Trespass

A claim of trespass lies where one party has wrongfully blocked another's easement. Melrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Company, LLC, 89 Mass. App. Ct. 594 , 602-603 (2016) ("Since the club continues to hold an easement over Cheever Avenue, the presence of TGP's facility blocking that easement constitutes a continuing trespass. See Porter v. Clarendon Natl. Ins. Co., 76 Mass. App. Ct. 655 , 659, 925 N.E.2d 58 (2010) ('When a trespass is caused by the erection of a permanent structure, that trespass commences on a date certain, and the trespass continues as long as the offending structure remains')."). "The failure to remove the structure 'constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land.' Restatement (Second) of Torts § 161 comment b, at 289 (1965)." Id. at 603. A claim of trespass also arises when one party wrongfully enters on the land of another. See Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394 , 396 (2010) ("'To support an action of trespass . . ., it is necessary to prove the actual possession of the plaintiff, and an illegal entry by the defendant.' New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707, 49 N.E.2d 121 (1943), quoting from Barnstable v. Thacher, 3 Met. 239 , 3 Metc. 239, 242 (1841).").

Here, the Pariseaus' construction of a fence along the property line between the Kitchen Parcel and the Pariseau Parcel constitutes a continuing trespass insofar as the fence blocks the Kitchens' historic access to the rear of the Kitchen Parcel and insofar as the fence is on the area to which the court has concluded that the Kitchens have title by adverse possession. The Kitchens are entitled to an injunction to enforce their rights. Taylor v. Martha's Vineyard Land Bank Commission, 475 Mass. 682 , 687 n.13 (2016) ("an 'injunction is an appropriate remedy to enjoin repeated trespasses, even though no substantial damage is thereby incurred by the landowner.' Doody v. Spurr, 315 Mass. 129 , 134, 51 N.E.2d 981 (1943)."); Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 86 (2005) ("Because the recurrent entry by golf balls onto the plaintiffs' properties constitutes a continuing trespass, we conclude that the trial judge erred in denying injunctive relief. See Hennessy v. Boston, 265 Mass. 559 , 561, 164 N.E. 470 (1929); Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 , 538, 233 N.E.2d 216 (1968).").

G.L. c. 242, §7 Claim For Damage To Trees

The Kitchens also seek recovery pursuant to G.L. c. 242, §7, for the loss of fruit trees and blueberry bushes removed by Urbain in 2018 from the area abutting the Way to which the court has now concluded that the Kitchens have title by virtue of their adverse possession of the same. That statute provides:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for tree times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Scott testified without objection that the fruit trees would cost $100 to replace and that he could not estimate the cost to replace the two or three arborvitae that Urbain removed.

When Urbain took down the trees at issue here, he was the record owner of the property on which they grew and "had good reason to believe that the land on which the trespass was committed was his own." G.L. c. 242, §7. Accordingly, only single damages will be awarded.

CONCLUSION

For the foregoing reasons, upon the filing and approval of a plan suitable for recording that shows the boundaries of the prescriptive easement and the area acquired by the Kitchens by adverse possession, judgment shall enter in the Kitchens' favor (1) on Counts I, II and III of the complaint adjudging and declaring (a) that the Kitchens have a prescriptive easement over the Proposed Road from the intersection with Briggs Road to the Turn Off shown in Ex. 21 approximately 200 feet to the south, and (b) that the Kitchens have acquired title by adverse possession to that area of the Pariseau Parcel within the boundaries of the fence shown in Ex. 22; (2) on Count IV awarding damages of $100; and (3) on Count V enjoining the Pariseaus, their successors and assigns from interfering with the Kitchens' rights as described herein. The Kitchens are to prepare and submit a plan to the court and counsel for the Pariseaus by April 6, 2020. The Pariseaus are to file any objections to the plan within ten days thereafter.