MISC 09-401382

July 9, 2013




The instant action was brought by Frederick and Sharon Lally (plaintiffs / Lallys) against their neighbors, Lynda and Edward Murphy (defendants / Murphys) and John Rita (Rita) to establish rights in a footpath on their property in Lakeville, Massachusetts. The footpath is a ten-foot wide right-of-way used by their abutting neighbors to access and enjoy Long Pond. The plaintiffs filed a two-count complaint seeking a declaratory judgment under G.L. c. 231A. Count I seeks a determination that the “right of way/easement” conveyed to Edward Murphy and Emma L. Murphy [Note 1] (Elder Murphys) “was a life estate which, by its terms has expired because of the death of the original grantees, Edward Murphy and Emma L. Murphy.”

Count II was disposed of under this court’s previous Order Allowing the Motion of Defendant John P. Rita for Judgment on the Pleadings. Count II seeks a declaration to the effect that a “right of way / easement” benefitting the defendant John P. Rita, was either “not a valid grant” or if it was a valid grant, that “the interest has expired with the death of the original grantees, Edward Murphy and Emma L. Murphy.” By virtue of that Order of March 30, 2012, this court rejected the arguments put forth by the plaintiffs with regard to easement benefitting the Rita estate. It found that an easement appurtenant to the Rita estate had been granted by deed which, unless extinguished, afforded the defendant John P. Rita “a right to pass over the footpath to access Long Pond.” The court went on to conclude that “the plaintiffs have failed to put forth plausible factual bases to support the notion that the express easement, created by deed, ha[d] been extinguished.”

That Order, which is incorporated herein by reference, left only Count I for disposition.

For purposes of the remaining Count I action, the plaintiffs allege that an express easement burdening their property and benefiting that of their neighbors, the Murphys, expired upon the death of the predecessors in title of the defendant Murphys. At trial, the defendants acknowledged that the express easement terminated with the death of Edward W. Murphy’s parents, the Murphys’ predecessors in title.

The Murphys have filed an Amended Counterclaim consisting of two Counts. In Count I, they allege that “they hold a permanent easement or right-of-way by virtue of the deeds [attached to the Complaint as Exhibit D, Exhibit E and Exhibit G].” In Count II they allege certain rights in the footpath by prescriptive easement, noting that “even before the deaths of the Elder Murphys, plaintiffs-in-counterclaim and their predecessors in title used a portion of 26 Plymouth Street and erected thereon their dock in a manner which was uninterrupted, open, notorious, exclusive and adverse for more than 20 years.” In that same Count II, the plaintiffs-in-counterclaim argue, in the alternative, that they have established ownership in “so much of 26 Plymouth Street as improved by the dock to the point of intersection with the low water mark on Long Pond by adverse possession.” The plaintiffs, the defendants-in-counterclaim, take issue with the defendants, the plaintiffs-in-counterclaim, arguing that the latter have established no rights in either the pathway or the dock area.

These issues were the subject of a one day trial on November 7, 2012, [Note 2] at which a stenographer was sworn to take the testimony of Lynda Murphy and Michael Murphy. Thirty six exhibits were admitted into evidence which are incorporated by reference into this decision for purposes of appeal.

On all the credible testimony, [Note 3] exhibits and other evidence properly introduced at trial or otherwise before me and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

1. The plaintiffs, husband and wife, own as tenants by the entirety the property known and numbered as 26 Plymouth St., Lakeville, Massachusetts (the Lally estate). [Note 4]

2. The defendants, husband and wife, own as tenants by the entirety a parcel known as 24 Plymouth Street, Lakeville, Massachusetts (the Murphy estate). [Note 5]

3. John P. Rita owns the property at 22 Plymouth Street, Lakeville, Massachusetts (the Rita estate). [Note 6]

4. The Lally estate, the Murphy estate, and the Rita estate were originally a single Lot described as Lot No. 61 on a plan recorded with the Plymouth County Registry of Deeds in Book 1, Page 208. [Note 7]

5. The Lally estate was conveyed from Lot No. 61 by a quitclaim deed dated July 17, 1964 from Myrtle E. Ramsdell and James W. Allen to Albert McKay, Josephine McKay, and Helen Pelc. [Note 8]

6. The Lally estate abuts Long Pond, [Note 9] which has been designated a “Great Pond” by the Commonwealth. [Note 10]

7. The Murphy estate was conveyed from Lot 61 by quitclaim deed dated July 17, 1964 from James W. Allen to Edward Murphy and Emma L.Murphy, husband and wife (the Elder Murphys). [Note 11] The Elder Murphys were the parents of the defendant Edward W. Murphy. [Note 12] The deed in to the Elder Murphys included the grant of an easement to Long Pond over the Lally estate, described as follows:

Together with a 10 foot right-of-way for foot traffic over the existing foot path to Long Pond, said right-of-way to extend 5 feet Northerly and 5 feet Southerly from the center line of said existing foot path. The aforementioned right-of-way to be held during the joint lives of the grantees, to be enjoyed in common with others entitled thereto, and subject to the right of the Grantor, his heirs or assigns to enjoy the use of the same. [Note 13]

8. The Rita estate was conveyed from Lot 61 by quitclaim deed dated September 16, 1958 from James W. Allen, to himself and Myrtle E. Ramsdell “as joint tenants… with rights of survivorship.” [Note 14]

9. Myrtle E. Ramsdell conveyed the Rita estate to the Elder Murphy by a deed recorded October 7, 1969 in Book 3553, Page 50. Shortly thereafter, the Elder Murphys conveyed the property to John R. Rita and Thomas L. Rita by a deed recorded with the Registry at Book 3635, Page 471. [Note 15] The deed from the Elder Murphys to the Ritas includes the following language:

. . . RESERVING ALSO to the Grantors, their heirs and assigns a ten-foot right-of-way for foot traffic over the existing footpath to Long Pond as described in a deed from James W. Allen to Edward Murphy and Emma L. Murphy dated July 17, 1964 and recorded in the Plymouth County Registry of Deeds. [Note 16]

10. In 1961 Edward W. Murphy and Lynda Murphy were married; at that time the Elder Murphys were renting 24 Plymouth Street, the Murphy estate. [Note 17]

11. In 1964 the Elder Murphys purchased 24 Plymouth Street for use as their permanent residence. Edward and Lynda Murphy visited them almost every weekend. [Note 18] While they resided at the Murphy estate, the Elder Murphys maintained a dock on the shore of Long Pond. [Note 19]

12. Emma L. Murphy died on March 19, 1984. [Note 20] Edward Murphy died on June 20, 1984. [Note 21] Approximately a year before their respective deaths they deeded the Murphy estate to their son, Edward Murphy. [Note 22]

13. After the Elder Murphys passed away, the defendants continued to use and maintain the dock at the same location every year from 1984 to 2012. [Note 23] The defendants use the Murphy estate during the summer season. [Note 24] They have the dock installed for the summer season in May and removed by October. [Note 25]

14. The dock has been continuously used during the summer season by the Murphys and their guests for the purposes of boating, swimming, and fishing. [Note 26]

15. When getting to and from the dock, the Murphy family would always take the same path. They would start roughly at the concrete bound marking the corner between the Rita estate and the Murphy estate. They would walk across the Lally estate in a straight line to Long Pond just to the left of the tree. [Note 27]

16. The Murphys never asked the Lallys or the previous owners of the Lally estate for permission to traverse the property because they believed they possessed a right-of-way to the Pond. [Note 28]

17. On July 13, 1996, Edward Murphy applied to the Massachusetts Department of Environmental Protection (DEP) for “Interim Approval to maintain an existing pipe supported dock and boat lift.” On July 25, 1997 the DEP granted the requested approval. [Note 29] The plan submitted in conjunction with the application depicts a “60’ x 12’ FT RIGHT OF WAY” across the Lally estate. [Note 30] The plan was not prepared by an engineer. [Note 31]

18. On May 22, 2003, the Lally’s attorney, Paul Adams, the late father of the plaintiffs’ current attorney, wrote a letter to “Mr. And Mrs. Edward Murphy” advising them that “the right-of-way granted to [them] . . . is restricted ‘for foot traffic’ and for no other use.” However, the letter was directed to the Elder Murphys, who had passed away 19 years earlier. [Note 32]

19. In 2005 the Lallys began parking vehicles on their property in such a way as to obstruct the defendants’ access to Long Pond. [Note 33] However, the Murphys were still able to cross the Lally estate within the path and reach the beach by circumventing the vehicles. Their use of the path and the dock remained undiminished. [Note 34] On July 14, 2005, the defendants’ attorney sent a letter to the Lallys requesting that the vehicles be removed as they interfered with the defendants’ access to Long Pond. [Note 35]

20. On September 6, 2005, the Lallys filed suit against the defendants in the Plymouth Superior Court raising the same issues that have since been raised in the instant proceeding. [Note 36] However, the Superior Court complaint was never served on the defendants, and that suit was dismissed. [Note 37] The instant action was later initiated in this court.


The plaintiffs object to (a) the defendants’ use of the right of way to access Long Pond and to (b) the dock that the defendants installed therein. At the outset, the defendants claimed to possess an easement by reason of the language appearing in the deed to the Elder Murphys. However, the defendants abandoned that argument at trial, acknowledging that the Elder Murphys held an easement-in-gross that terminated with their deaths. The defendants now claim to have established an easement by prescription across the Lally estate to Long Pond for the purposes of reaching the water and placing their dock in the pond. Alternatively, they argue that they have acquired title to the land beneath the dock by adverse possession. The plaintiffs, in turn, assert that the defendants cannot meet their burden of proof as to the elements required to establish a claim to the footpath by either prescriptive easement or adverse possession.

This court is satisfied that the defendants have demonstrated that they possess an easement by prescription. However, they have not acquired title to any portion of the Lally estate by adverse possession.

I. Prescriptive Easement

To acquire a prescriptive easement over the land of another requires continuous, uninterrupted use of the easement for a period of twenty years. G. L. c. 187, § 2. As is the case with adverse possession, the use must also be open, notorious, and adverse to the owner of the underlying property. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Boston Seaman's Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985). The party alleging the easement bears the burden of proving all the elements to establish rights by prescription. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). If any element is not proven, then an easement has not been established. See Mendonca v. Cities Serv. Oil Co., of Pa., 354 Mass. 323 , 326 (1968).

A. Twenty Year Period

The law of the Commonwealth requires a use of at least twenty years duration if one is to establish a prescriptive easement. G.L. c. 187, § 2. The defendants have used the right of way for many years beginning when the Elder Murphys rented the property at 24 Plymouth Street in the early 1960’s. That use has continued to the present time. The period of prescriptive use commenced with the deaths of the Elder Murphy’s and the corresponding termination of their easement-in-gross. It continued at least until the plaintiffs filed a complaint in Superior Court in 2005. However, as the defendants were never served in that action, the time of adverse use can in fact be calculated to include the years between 2005 and 2009 when the instant action was initiated. Even without benefit of this extended period, however, the defendants have established the necessary twenty year period of prescriptive use from 1984 to 2005.

B. Continuous Use

There must be continuous use of the property for the entire twenty year period. See G.L. c. 185, § 2. “[S]poradic use” will fail to satisfy the requirement unless the acts are “sufficiently pervasive.” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996). “The nature and the extent of occupancy required to establish a right by [prescriptive easement] vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 490 (1938). Intermittent use of a right of way, or use that is disjointed in time, is insufficient to meet the requirement of continuous use. See, e.g., Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). “Continuous use does not necessarily mean constant use.” Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). Seasonal or periodic use may be considered continuous, provided such activities demonstrate a pattern of regularity. See Mahoney v. Heebner, 343 Mass. 770 (1961) (finding seasonal variation in use enough to establish a prescriptive easement); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961) (finding periodic use sufficient); Lawrence v. Houghton, 296 Mass. 407 (1937) (use of road to summer residence for thirty-five years sufficient to establish prescriptive easement); Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985) (noting pattern of regular use on weekends).

Lynda. Murphy testified that she and her family used the Murphy estate every summer, installing the dock every year in May, removing it by October, and utilizing the right of way to access the dock and Long Pond. Additionally, the Murphy’s had guests who used the right of way and the dock during the summer months. This use may be considered as “continuous use”, inasmuch as prescriptive use “need not be made personally by the owner of the claimed prescriptive [easement], but may be made by tenants, customers, guests, and visitors . . . .” Restatement (Third) of Property § 2.16 (2000). Such seasonal use by the Murphys and their invitees will suffice to establish the requisite continuous use for purposes of the statute. See Mahoney v. Heebner, 343 Mass. 770 (1961).

C. Open, Notorious, and Adverse Use

To be deemed “open,” the use must be without attempted concealment. “The extent of openness and notoriety necessary for the acquisition of title by adverse use varies with the character of the land.” Tinker v. Bessel, 213 Mass. 74 , 76 (1912). The requirement that the use of the easement be open and notorious is intended to afford the property owner an opportunity to assert his rights and maintain title to the land. See Boothroyd v. Bogartz, 68 Mass. App. Ct. at 44, citing Foot v. Bauman, 333 Mass. 214 , 218 (1955).

For a use to be deemed “notorious”, it must be sufficiently pronounced so that the landowner would be aware of the use if he maintained a reasonable degree of supervision over his property. See id. “It is not necessary that the use be actually known to the owner for it to meet the test for being notorious.” Id. And there is no requirement that the true owner be given explicit notice of adverse use, Ottavia v. Savarese, 338 Mass. 330 , 334 (1959) (“Where the user has acted, without license or permission of the true owner, in a manner inconsistent with the true owner's rights, the acts alone . . . may be sufficient to put the true owner on notice of the nonpermissive use.”), or in fact have actual knowledge of his ownership of the land. Lawrence v. Concord, 439 Mass. 416 (2003). So long as the landowner can be deemed to have had constructive notice of the adverse use, the requirement is met. See Lawrence v. Concord, 439 Mass. 416 , 421-422 (2003) (discussing this element in the context of a claim of adverse possession).

This court is satisfied on the trial record before it that the Murphy’s openly used the right of way in a manner adverse to the rights of the plaintiffs. Moreover, coupled with that use, the annual installation of the dock, a substantial structure, constituted a sufficiently open and notorious act to put the landowner on notice that another was proceeding adversely to his rights. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 841 (2008).

Plaintiffs’ counsel argued at trial that the defendants’ actions were not adverse to the plaintiffs because their use had begun with the Elder Murphys’ easement in gross. Plaintiffs reason that the defendants’ use continued on a permissive basis. [Note 38] While the use may have commenced and been carried on pursuant to an easement in gross, it continued for many years following the termination of those deeded use rights. This court has been presented with no convincing legal analysis which suggests that the exercise of those deeded use rights during the lives of the Elder Murphys, somehow renders all subsequent use permissive. The decisional law suggests otherwise. See Bassett v. Harwich, 180 Mass. 585 , 586 (1902) (“If the assent is to use as of right[,] it helps rather than hinders the gaining of a title by prescription. If for instance a landowner makes a deed purporting to grant a right of way in fee and the deed turns out to be void the production of the deed would be convincing evidence that the subsequent use of the way was at once by the assent of the landowner and adverse.”).

See also, the case of Lawrence v. Concord, 439 Mass. 416 , 424-425 (2003). In Lawrence, the plaintiff resided in a dwelling after his wife, who possessed a life estate in the property, passed away. The Town of Concord held the remainder interest. The Court held that the husband’s “use of the locus was adverse to the interests of the town from the moment of the wife’s death…. All that was required of [the husband] was that he occupy the locus without the permission of the true owner, continuously for twenty years, exclusively, openly, notoriously, and adversely to the true owner, thereby giving notice to the world of his possession.”

The facts herein mirror those in Lawrence. The Elder Murphys possessed an easement by deed that terminated with their passing. Lynda Murphy testified that neither she nor her family ever requested permission from the Lallys or their predecessor in title to use the right of way. [Note 39] The parties may have been under the impression that the defendants were using the property in accord with the deeded easement; [Note 40] as a matter of law, however, the defendants’ use of the footpath became adverse to the plaintiffs with the passing of the Elder Murphys. That adverse use continued for the ensuing twenty year period and beyond.

“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.” Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-531 (1987), quoting from Truc v. Field, 269 Mass. 524 , 528-529 (1930). A property owner may submit evidence of express or implied permission to rebut the presumption of adverse use. Spencer v. Rabidou, 340 Mass. 91 , 93 (1959).

At trial, the defendants introduced uncontroverted evidence that they had used the right of way under a claim of right for a minimum of twenty-one years. The evidence indicated that the defendants have used the right of way every summer during that period to reach Long Pond, and that they have also installed a dock commencing at or about the end of the footpath and running for approximately fifty-six linear feet. [Note 41] The dock has been used by the defendants for fishing, swimming, and boating during that period of time. Although the defendants have used the right of way as they have used the entire Murphy estate, i.e. primarily during the summer months, that fact will not suffice to bar the creation of an easement by prescription. Indeed, this court is satisfied that the defendants have met their burden of proving that they have acquired a prescriptive easement that runs along the established footpath from their home to the water. That prescriptive easement includes the right to seasonally install (and remove) such dock as aforesaid for recreational activities.

II. Adverse Possession

The defendants argue in the alternative that they have acquired title to the land upon which the dock rests under the doctrine of adverse possession. Title to property can be established by adverse possession by demonstrating actual, open, exclusive, and nonpermissive use of the property for the twenty-year statutory period. Totman v. Malloy, 431 Mass. 143 , 145 (2000). Three of these elements have been discussed above. See supra Part I. The remaining element is “exclusivity”. However, there is on this trial record insufficient evidence needed to establish the requisite “exclusivity”. The court notes, in this regard, that no survey or other evidentiary material has been presented which would demonstrate with precision the poriton of the Lally estate the defendants are seeking by means of their adverse possession claim. Therefore, the defendants have failed to establish title to any part of the Lally property by adverse possession. Conclusion

In light of the foregoing, this court concludes that: (a) as per the Order of March 30, 2012, the defendant John P. Rita enjoys an express, appurtenant easement “to pass over the footpath to access Long Pond”; (b) the Elder Murphys possessed an easement by deed that terminated with their passing; (c) while they enjoy no such deeded easement rights, the Murphy defendants, the plaintiffs in counterclaim, have met their burden with respect to each element of their claim for prescriptive easement over the Lally estate for the purposes of accessing Long Pond, and for purposes of installing and maintaining their dock of approximately fifty-six feet and commencing at or about the end of the footpath; (d) the Murphy defendants have failed to establish title to the land under the dock by adverse possession.

Judgment to enter accordingly.


[Note 1] See paragraph 7 infra.

[Note 2] The defendants filed their post trial brief in December of 2012. The plaintiffs elected not to file a post trial brief.

[Note 3] At trial, the plaintiffs presented no witnesses on their behalf.

[Note 4] Exhibit (“Ex.”) 4.

[Note 5] Ex. 3.

[Note 6] Ex. 2.

[Note 7] See Ex. 1.

[Note 8] Ex. 4.

[Note 9] See Ex. 1; Ex. 4.

[Note 10] Ex. 5.

[Note 11] Ex. 3.

[Note 12] See Trial Transcript (Tr.) 21:1-4; 21:21-22.

[Note 13] Ex. 3.

[Note 14] Ex. 2.

[Note 15] See Ex. 2.

[Note 16] Ex. 2.

[Note 17] See Tr. 21:12-13.

[Note 18] See Tr. 21:14-24.

[Note 19] See Tr. 25: to 29; Tr. 78: to 79; Ex. 24.

[Note 20] Agreed Facts ¶ 8.

[Note 21] Agreed Facts ¶ 9.

[Note 22] See Tr. 58:6-10.

[Note 23] See Tr. 30:12-24.

[Note 24] See Tr. 31:5-15.

[Note 25] See Tr. 30:3-11.

[Note 26] See Tr. 41:24 to 42:4; Exs. 24, 28, 27, 30-35.

[Note 27] As viewed facing the water. See TT 45:10 to 48:15; Ex. 21.

[Note 28] See Tr. 48:22 to 49:10. The Murphys at some point had permission to store the dock on the Lally estate during the winter months, but the dock was not stored within the path to the Pond, and in any event is no longer stored on the Lally’s property as the permission was withdrawn. See Tr. 60:22 to 62:6.

[Note 29] Agreed Facts ¶ 10; Ex. 5.

[Note 30] Ex. 5.

[Note 31] See Tr. 55:7-22.

[Note 32] See Ex. 6.

[Note 33] See Tr. 50:23 to 51:13.

[Note 34] See Tr. 51:17 to 52:1.

[Note 35] Agreed Facts ¶ 11.

[Note 36] Ex. 8

[Note 37] See Tr. 8:2-10, 52:12-18.

[Note 38] The court notes that plaintiffs failed to provide a post-trial brief, or proposed findings of fact or law, to support or elucidate the arguments made at trial.

[Note 39] See Tr. 48:22 to 49:10.

[Note 40] See Ex. 2; Ex. 6. See also in this regard, Lawrence v. Concord, 439 Mass. 416 , 423(2003) (“adverse possessor’s state of mind or mental attitude is not relevant, only his actions provide notice of nonpermissive use to the true owner.”)

[Note 41] See Ex. 5.