MISC 18-000590

OCTOBER 16, 2020




Procedural History

On November 5, 2018, Robert Guise filed his Verified Complaint and his Motion for a Temporary Restraining Order and Preliminary Injunction. On November 27, 2018, Robert Guise filed his Amended Verified Complaint (Complaint or Compl.). On December 11, 2018, the Motion for Preliminary Injunction was heard, and Defendants filed a Memorandum of Law and Mary Connolly's Affidavit in Opposition (Connolly Aff.). The court took a view of the subject properties on December 14, 2018. The court's Order Allowing Plaintiff's Motion for Preliminary Injunction issued on December 18, 2018.

On December 31, 2018, Mary Connolly and John Connolly (the Connollys) filed their Answer and Counterclaim to Plaintiff's Amended Verified Complaint. On January 14, 2019, Plaintiff Robert Guise's Answer to Defendants John and Mary Connolly's Counterclaim was filed, and the Amended Answer to Defendants John and Mary Connolly's Counterclaim was deemed filed on May 1, 2019. On October 31, 2019, by assented-to oral motion of the parties, Robert Guise's wife, Cynthia Guise, was joined as a necessary party plaintiff.

On December 16, 2019, the Connollys filed Defendant Connollys' Motion for Summary Judgment (Motion for Summary Judgment), the Memorandum of Law in Support of Defendant John Connolly, Mary Connolly's Motion for Summary Judgment, Connolly's Concise Statement of Material Facts Pursuant to Land Court Rule 4 (Facts), and Appendix in Support of Defendant Connolly's Motion for Summary Judgment. On January 24, 2020, plaintiffs Robert Guise and Cynthia Guise (the Guises) filed Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, Plaintiffs Robert Guise and Cynthia Guise's Memorandum of Law in Support of their Opposition to Defendants' Motion for Summary Judgment, Non-Moving Party Robert and Cynthia Guise's Response to the Moving Party John and Mary Connolly's Concise Statement of Material Facts and Additional Material Facts of the Guises (Additional Facts), and the Appendix in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. On February 14, 2020, the Connollys filed Connolly's Response to the Guises' Additional Statement of Facts.

On February 25, 2020, the court heard the Motion for Summary Judgment. At the hearing, the court dismissed without prejudice Counts 2 and 3 of the Complaint pertaining to the Connollys' cutting of tree branches, and took the Motion for Summary Judgment under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


For the purposes of deciding the Motion for Summary Judgment, the following facts are either undisputed or inferred in favor of the non-moving party, the Guises:

1. The Guises own and live at the property located at 996 Canton Avenue, Milton, Massachusetts 02186 (the Guise property). Compl. ¶ 1.

2. The Connollys own and live at the property located at 990 Canton Avenue, Milton, Massachusetts 02186 (the Connolly property). Compl. ¶¶ 2 - 3.

3. The Guise and Connolly properties each have semi-circular driveways which offer two entrances from their properties onto Canton Avenue. The two driveways border each other along the shared property line. View. The parties' property line, where it bisects the two abutting driveways, is not perpendicular to Canton Avenue but runs diagonally as it approaches Canton Avenue creating an irregular triangular shaped piece of land which is part of the Connolly property. Compl. ¶¶ 8-9; Connolly Aff. Exh. 3; View.

4. In 1962, Lawrence W. DeCelle, Jr. (DeCelle), the father of Mary Connolly, purchased the Connolly property. At the time, it was a vacant lot. Facts ¶ 1.

5. DeCelle built a circular driveway on the Connolly property in the 1960s that abutted the Guise property, then owned by Barbara and Curt Bates. Facts ¶ 2.

6. DeCelle conveyed the Connolly property to the Connollys by a deed dated December 8, 1987, and recorded with the Norfolk Registry of Deeds (registry) in Book 7824, Page 573. Facts ¶ 7.

7. Following the passing of Barbara Bates, the Guise property was conveyed to the Guises by a deed dated February 20, 1998, and recorded with the registry in Book 12311, Page 278. Facts ¶ 8.

8. The Guises did renovation work on the Guise property from March 998 through the Spring of 1999 and did not move into the property until about March 1999. Facts ¶ 9.

9. The Guise property only had one entrance when it was purchased by the Guises, but sometime later in the summer of 1998, a circular driveway packed with gravel and crushed stoned was created on that property. Facts ¶ 10.

10. The Guises installed the circular driveway on the Guise property because, as testified by Mr. Guise, Canton Avenue is extremely dangerous to get in and out of, and the Guises wanted an easier egress to get from the Guise property onto Canton Avenue without getting into an accident. Additional Facts ¶ 5.

11. Throughout this renovation period until the Guises moved into their property in March of 1999, contractors would drive into the backyard or along the side and parked in various place on the Guise property's yard as there was no lawn in place. Facts ¶ 11.

12. One of the contractors that Mr. Guise retained at the beginning of the renovation work was Mr. Connolly. Facts ¶ 12.

13. There is a dispute as to whether Mr. Connolly in June 1998, while working for Mr. Guise, informed Mr. Guise about the boundary line and whether he gave the Guises permission to use the Connollys' driveway. Facts ¶ 13.

14. Since purchasing their property, the Guises have been driving over the triangular portion of the Connolly property's driveway (the disputed area) for ingress and egress onto Canton Avenue and have parked on the disputed area. Additional Facts ¶ 1 and Compl. ¶¶ 10-12. The Guises have repeatedly driven over the disputed area since March 1998. Additional Facts ¶ 2. Compl. ¶¶ 11 and 21.

15. The Connollys have been aware of the Guises' use of the disputed area since March 1998. Additional Facts ¶ 3. There has never been any dispute as to the Connollys' ownership of the disputed area. Additional Facts ¶ 7.

16. In 2007, Mr. Guise informed Mr. Connolly that he was having his driveway paved with asphalt and stamped. Facts ¶ 16.

17. Drawing inferences in the Guises' favor, in 2007, Mr. Guise asked Mr. Connolly if he wanted the Connollys' driveway paved with asphalt and stamped similarly to the Guises' driveway. Mr. Connolly said no. Mr. Connolly told Mr. Guise that he was having the disputed area or portion of the driveway surveyed. After speaking with his wife, Mr. Connolly also told Mr. Guise not to stamp the Connollys' driveway as they wanted to make sure that the stamping would not interfere with their section of the driveway. Facts ¶ 17; Connolly Aff. ¶¶ 6-7.

18. The Guises had their circular driveway paved and stamped in 2007 by Driveway Impressions. Facts ¶ 18.

19. Mr. Guise listened to John Connolly's instruction in 2007 and only had the Guises' portion of the driveway that was within the Connolly property stamped. Facts ¶ 20.

20. The portion of the driveway that was within the Connolly property's line was not stamped, but only repaved. Facts ¶ 21.

21. The Connollys paid $400.00 for their portion of the driveway within their property line that was repaved by the paving company the Guises hired. Facts ¶ 22.

22. On or about July 13, 2018, the Guises received a cease and desist letter from an attorney representing the Connollys, which demanded that the Guises cease crossing over the triangular portion of the Connolly property to access their driveway and further "advised that any verbal permission the Connollys may have given in the past to cross over their property, especially to access [the Guises] driveway, is hereby revoked." Compl. ¶ 22 & Exh. A.

23. On or about July 29, 2018, Mary Connolly attempted to block the Guises' access to their driveway by parking a car along the property line. Compl. ¶ 25.

24. On or about August 15, 2018, Robert Guise retained counsel and sent a cease and desist letter to the Connollys which asserted that he had fulfilled the statutory requirements to obtain a prescriptive easement to cross over the triangular portion of the Connolly property. Compl. ¶¶ 27-30 & Exh. B.

25. On or about November 21, 2018, the Connollys caused a fence to be erected along the property line which prevented Guises from driving cars over the triangular portion of the Connolly property. Connolly Aff. ¶ 9 & Exh. 3. The fence consists of three sections, supported by four vertical posts with two horizontal rails in place between each set of posts. View.

26. There was no physical barrier that separated the property line between the Connollys' driveway from that of the Guises' own driveway until November of 2018 when the Connollys erected a fence. Facts ¶ 14.

27. The fence erected in November of 2018 is along the boundary line between the Connolly Property and the Guise property, which the Guises first learned was the property line in 2007. Facts ¶ 15.


The Guises claim a prescriptive easement over the disputed area for use as a driveway. Acquiring an easement by prescription "requires continued, uninterrupted use of that easement for twenty years. G. L. c. 187, § 2. As with adverse possession, the use must be open, notorious, continuous, and adverse." Rotman v. White, 74 Mass. App. Ct. 587 , 589 (2009). However, unlike in adverse possession, lack of exclusive use does not preclude the acquisition of an easement by prescription. Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

In the Motion for Summary Judgment, the Connollys argue that the undisputed facts show that the Guises have not met the continuous adverse use requirement of their prescriptive easement claim, because the Guises' use of the disputed area was discontinued and made permissive following the renovation of both parties' circular driveways in 2007. The Connollys contend that the Guises recognized Mr. Connolly's control and authority over the disputed area by following his instruction that the Connollys' driveway not be stamped. The Connollys argue that this showed that the Guises' use of the disputed area was permissive and not adverse. The question, therefore, is whether, construing the facts in the Guises' favor, the exchange between Mr. Connolly and Mr. Guise constituted permission or mere acquiescence.

"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." Trotman v. Malloy, 431 Mass. 143 , 145 (2000) (finding that while evidence of a familial relationship may sometimes assist the fact finder in determining the individual nature of the relationship between the claimants or to whose benefit the land was used, a familial relationship standing alone neither puts an end to the inquiry regarding permissive use nor shifts the burden of proof); see Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976) ("One's use of another person's property is adverse to that person if the manner of his use and the circumstances thereof demonstrate that he does not recognize or consider himself to be subject to an authority in that person to prevent his use of the property."). It is the possessor's actions, and not his intent, that provide notice of nonpermissive use to the true owner. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (clarifying that the central inquiry for finding whether a use is permissive or adverse should be whether consent was given to the adverse claimant for using the land at issue, and that the adverse claimant's mental state is irrelevant to finding that his use was hostile). Thus, the unexplained use of an easement will be presumed to be adverse, and is sufficient to establish title by prescription. Truc v. Field, 269 Mass. 524 , 528-529 (1930). Evidence of express or implied permission rebuts the presumption of adverse use. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959).

Permission, implied or express, must be more than mere acquiescence in the use. Ivons Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964); see Dartnell v. Bidwell, 98 A. 743, 745 (Me. 1916) (further defining acquiescence as not meaning "license or permission in the active sense. It means passive assent, or submission. It means quiescence. It is consent by silence."). Several factors distinguish implied permission from mere acquiescence, such as acts of dominion consistent with record title, control, and the adverse claimant's acquiescence to that control. See Stafford v. Flett, 25 LCR 83 , 90 (2017) (Scheier, J.) (an oral agreement to swap the use of portions of each other's property between the true owner and the adverse claimant effectively led to the finding of an implied permission); Dinino v. Newman, 24 LCR 697 , 700 (2016) (Long, J.) (an intentionally shared common driveway between members of both households was deliberate and not hostile, seeing how this arrangement was mutually beneficial, and maintenance showed that the defendants agreed to the plaintiffs' use.) On the other hand, implied permission will not be found where there is possession with the forbearance of the true owner who knew of such possession and did not prohibit it, but rather tacitly agreed to it. Rotman, 74 Mass. App. Ct. at 589-590 (where an enforceable prescriptive easement for a sewer line existed where the servient estate holder failed, by his own admission, to grant permission to the party maintaining the sewer line and had repeatedly requested that such party remove the line from the servient estate); see Ivons-Nispel, Inc., 347 Mass. at 763 (confirming prescriptive right to use beach after finding that the defendant Irene Lowe never received permission to use plaintiff's land); MacLeod v. Davis, 290 Mass. 335 , 339 (1935) (finding that there was mere acquiescence due to the fact that the defendant and her predecessors in title during these years never voiced any objection to the plaintiff or any of the other joinders about their use of the drain).

While the Guises, as the parties seeking to acquire a prescriptive easement, have the burden of proving every element, Rotman, 74 Mass. App. Ct. at 589, they are entitled as the nonmoving parties in this Motion for Summary Judgment to have all factual inferences drawn in their favor. Curly Customs, Inc. v. Bank of Bos., N.A., 49 Mass. App. Ct. 197 , 198 (2000). Drawing such inferences, there is an actual genuine dispute of material fact regarding how the 2007 conversation between Mr. Connolly and Mr. Guise specifically related to the disputed area. In this 2007 conversation, Mr. Guise asked Mr. Connolly to see whether the Connollys also wanted to have their driveway paved with asphalt and stamped, given that Mr. Guise was having his repaved. Mr. Guise was not inquiring anything about his own use of the Disputed area, and was not offering to pay for or supervise the Connollys' renovation of their own driveway. To find that this 2007 conversation constituted permission from Mr. Connolly for the Guises' use of the disputed area would require drawing an inference in favor of the Connollys, which cannot be done on this motion. There simply is not enough information to conclusively determine whether the Connollys merely acquiesced to the Guises' use of the triangular portion of the Connollys' driveway, or whether this 2007 conversation had the effect of giving the Guises an implied permission for them to use the portion of their driveway at issue. Furthermore, the Guises' simply letting the Connollys repave their driveway with asphalt is not sufficient to show that the Guises considered themselves to be under the Connollys' authority as to their use of parking or driving over the disputed area, as the disputed area is only a small portion of the Connollys' driveway. In other words, a trial is needed in order to determine the characteristic of the Guises' use of the disputed area, whether it was permissive or adverse.


For the foregoing reasons, the Defendant's Motion for Summary Judgment is DENIED.

A Zoom status conference is set down for October 30, 2020 at 11:30 am.