LAWRENCE A. TURNER and JUANITA J. TURNER v. MARYLOU SOUSA.

Plaintiffs, Lawrence A. Turner and Juanita J. Turner (Turners), filed this action on January 14, 2009, pursuant to G. L. c. 240, § 1, to compel Defendant Marylou Sousa (Ms. Sousa) to come forward and try title to property known as and numbered 17 Graham Street in North Weymouth (Turner Property). Ms. Sousa filed her Answer and Counterclaim on April 3, 2009. [Note 1] Ms. Sousa maintains that her property is benefited by a prescriptive easement over a dirt path located on the Turner Property (Disputed Way), or alternatively that her property is benefited by an express easement over the Turner Property. The Turners filed their Answer to Ms. Sousa’s Counterclaim on April 22, 2009, denying the existence of either a prescriptive or an express or easement over their property.

On March 2, 2010, the Turners and Ms. Sousa filed cross-motions for summary judgment. Thereafter, on August 25, 2010, this court issued an Order Granting the Turners’ Motion for Summary Judgment on the issue of merger (Summary Judgment Order), finding that to the extent an express easement benefiting the property owned by Ms. Sousa and burdening the Turner Property had existed, it was extinguished by merger when one G. Willard Bartlett became the record owner of both the benefited and the burdened parcels. The Summary Judgment Order did not address whether a prescriptive easement over the Disputed Way benefits the property owned by Ms. Sousa because there were material facts in dispute. Accordingly, this matter was set down for trial on that issue.

A one-day trial was held on May 10, 2011, during which a stenographer recorded the testimony of five witnesses: Michael Irving, Rita Harvey, Lamont R. Healy, RLS, Ms. Sousa and Plaintiff Lawrence A. Turner. Twenty-five exhibits were entered in evidence, which are incorporated in this decision for the purposes of appeal; and four diagrams with notations made thereon were used at trail as chalks. [Note 2] Based on all the evidence and reasonable inferences drawn therefrom, as well as the arguments contained in the parties’ post-trial briefs, this court finds the following material facts in addition to the undisputed facts set forth in the Summary Judgment Order:

Parties’ Record Title

1. The Turners, Plaintiffs in the original action and Defendants in Counterclaim, are husband and wife and reside at 32 Colasanti Road in North Weymouth. The Turners also own two parcels of land that are collectively known as and numbered 17 Graham Street, North Weymouth, on which they operate a hair care products business (Turner Property).

2. The Turners were conveyed their first parcel of land from Hilda B. Sport by deed dated September 14, 1993, recorded with the Norfolk Country Registry of Deeds in Book 10099, at Page 489 (Front Lot). [Note 3] The Turner’s ownership of the Front Lot was subject to a life estate retained by Hilda B. Sport, however, the life estate was released by Ms. Sport by an instrument dated July 10, 1996, recorded in Book 1143, at Page 675. [Note 4]

3. The Turners were conveyed their second parcel through a release deed from the Weymouth Redevelopment Authority dated July 29, 1998, recorded in Book 12812, at Page 223 (Back Lot).

4. The Back Lot was conveyed to the Weymouth Redevelopment Authority from the Town of Weymouth through a deed dated September 11, 1995, recorded in Book 11081, at Page 622. The Town of Weymouth acquired title to the Back Lot by low value deed dated September 23, 1952, recorded in Book 3116, at Page 428.

5. Ms. Sousa, Defendant in the original action and Plaintiff in Counterclaim, owns and resides at 11 Graham Street and alleges that her property is benefited by a prescriptive easement over the Disputed Way. Ms. Sousa was conveyed her property by deed of Rita A. Harvey dated November 16, 2006, recorded in Book 24275, at Page 436 (Sousa Property).

6. Rita A. Harvey had acquired (together with her late husband George E. Harvey) ownership of the Sousa Property by deed of John P. Horan and Myra E. Horan (Horans), dated July 31, 1978, recorded in Book 5459, at Page 66.

7. The Horans acquired ownership of the Sousa Property by deed of Frank M. Foster and Valeria F. Foster (Fosters), dated October 28, 1977, recorded in Book 5400, at Page 366.

8. Through a deed dated August 12, 1952, recorded in Book 3107, at Page 398, Bessie A. Foster conveyed the Sousa Property to Frank M. Foster, who in turn conveyed the Sousa Property to himself and Valeria F. Foster by deed dated September 25, 1952, recorded in Book 3116, at Page 559.

Vehicular Use of the Disputed Way

9. In the early 1950s, the Front Lot of the Turner Property was owned by the Sports, the Back Lot was owned by the Town of Weymouth, and the Sousa Property was owned by the Fosters. The Sousa Property was originally shown as Lots 24 through 38 and Lot 42 on a plan entitled “Bartlett’s Garden Park in So. Weymouth, Mass.” dated September 1905, recorded as Plan No. 2414 in Plan Book 51 (1905 Plan). The Sousa Property, as shown on the 1905 Plan, was bounded on its southerly lot line by Lawrence Street, on its westerly lot line by Grove Street, and on its northerly lot line by the Turner Property. The Front Lot of the Turner Property is comprised of the Lots numbered 48 through 52 on the 1905 Plan and the Back Lot is comprised of Lots 44 through 47.

10. In or around 1966, the Town of Weymouth issued a taking of a forty-foot wide water easement for the installation of public water service, as shown on a plan prepared by the Town entitled: “Plan of Water Easement in Weymouth, Norfolk Co. Mass.,” dated September 27, 1966. A portion of the Town’s water easement ran over the common boundary line of the Turner and the Sousa properties and extended east/west throughout the neighborhood. In connection with Town’s water easement, the Disputed Way was laid within the boundaries of the water easement area located on the Turner Property just north of the Sousa and Turner shared boundry line. See Exh. 5.

11. As a result of the construction of the Disputed Way, the Sousa Property had the benefit of a new route of vehicular access to a public way. More specifically, one could reach a public way from the Sousa Property by traveling over the Disputed Way and over a series of dirt and paved roads eventually reaching the public road. [Note 5]

12. Michael Irving, the grandson of the Fosters, lived on the Sousa Property with his grandparents and his uncle from shortly after his birth in the mid 1950s through 1972. After moving out, Mr. Irving continued to visit his grandparents until they sold the property to the Horans in October of 1977. Beginning in 1966, as a consequence of the installation of the Disputed Way, the Fosters, and their guests and invitees relied exclusively upon the Disputed Way as a driveway for ingress and egress to the Sousa Property and no longer accessed their property from Lawrence Street. Moreover, Mr. Irving accessed the Sousa Property by driving over the Disputed Way when he visited his grandparents after moving out in 1972. [Note 6]

13. The Horans acquired ownership of the Sousa Property by deed from the Fosters dated October 28, 1977. In or around October of 1977, Lamont R. Healy, a registered land surveyor, surveyed the land formerly owned by the Fosters, the Sports and the Town of Weymouth for the purpose of drawing a plan entitled: “Plan of Land in Weymouth, Mass. for Frank M. Foster,” dated October 19, 1977 (Healy Plan). The Healy Plan was filed with the Horan Deed as Plan No. 905-1977 in Plan Book 263.

14. At the time Mr. Healy prepared the Healy Plan, Lawrence Street, which bounded the southerly lot line of the Sousa Property, and Graham Street, which bounded the westerly lot line of the Sousa Property (f/k/a Grove Street on the 1905 Plan), were impassable by automobile with the exception of a portion of Graham Street adjacent to the Disputed Way, where vehicles would pass over it to access the Disputed Way.

15. The Disputed Way was being used as a driveway by the owners of the Sousa Property when Mr. Healy conducted his survey work in the fall of 1977, prior to finalizing the Healy Plan in October of 1977. [Note 7]

16. When Rita Harvey visited the Sousa Property prior to the Harveys’ purchase in 1978, she reached the house by driving over the Disputed Way. Additionally, it was Mrs. Harvey’s belief and understanding that the Disputed Way was her driveway. At the time the Harveys purchased the Sousa Property, the only issue regarding the Disputed Way known to her was that they could not pave it because the Town had a water easement.

17. The Turners acquired their Front Lot from Hilda Sport on September 14, 1993. [Note 8] The Harveys continued to use the Disputed Way, which ran over the Front Lot then owned by the Turners and the Back Lot owned by the Town of Weymouth.

18. The Weymouth Redevelopment Authority acquired the Back Lot from the Town on September 11, 1995. The Weymouth Redevelopment Authority was created pursuant to G. L. c. 121B, § 4, which, according to its terms, provides that such Authority is “a public politic and corporate to be know as the ‘Redevelopment Authority.’” After this purchase the Disputed Way ran over the Front Lot owned by the Turners and the Back Lot owned by the Weymouth Redevelopment Authority. [Note 9]

19. On May 10, 1996, the Weymouth Redevelopment Authority published a “Notice of Urban Renewal Plan,” recorded in Book 11351, at Page 107, through which the Redevelopment Authority adopted an Urban Renewal Plan for the Pine Grove Urban Renewal Project. As a result of the project, Graham Street was made a public street and a cul de sac was constructed at the end of the Street providing frontage to the Sousa Property and the Front Lot of the Turner Property. [Note 10]

20. As a result of the redevelopment of Graham Street the Harveys could now access the Sousa Property by traveling north/south on Graham Street and then over the Disputed Way to reach their home. [Note 11] Prior to 1996, the Town plowed the Disputed Way and filled and smoothed ruts as needed. However, after the cul de sac was constructed, the Harveys began to clear snow and maintain the surface of the Disputed Way. They also covered it with blue stone.

21. Mr. Turner, who was on the “citizens advisory committee” for the redevelopment of Graham Street, testified that he had a second conversation with Mr. Harvey in 1996, after the improvement of Graham Street and development of the cul de sac. [Note 12]

22. The Turners acquired the Back Lot from the Weymouth Redevelopment Authority on July 29, 1998. Ms. Sousa acquired the Sousa Property from Ms. Harvey on November 16, 2006. [Note 13]

23. Ms. Sousa has at all times used the Disputed Way as a driveway to her property and the Turners’ objections to her behavior were brought to her attention when she received a letter from the Turners’ attorney dated September 5, 2008, informing her of the Turners’ claim to the Disputed Way and their desire to construct a fence, which would block Ms. Sousa’s access to it.

Parking on the Disputed Way

24. From 1966 through 1977, Mr. Irving’s grandparents, the Fosters, and his uncle, and their invitees and guests parked at the easterly end of the Disputed Way closest to the Sousa Property. When Mr. Irving was old enough to drive, he parked there as well. There were no trailers or boats parked on the Disputed Way during the Fosters’ ownership of the Sousa Property.

25. When Mr. Healy and his crew did their survey work in 1977, cars were parked at the easterly end of the Disputed Way. Also, Ms. Harvey parked on the Disputed Way when she visited the Sousa Property prior to purchasing it in July of 1978.

26. The Harveys and their invitees and guests parked on the Disputed Way throughout the duration of their ownership of the Sousa Property. The Harveys had one car when they purchased the Sousa Property from the Horans in July of 1978 and they parked their car on the Disputed Way with no objections.

27. Sometime in the 1980s, the Harveys purchased a second vehicle which they also parked on the Disputed Way. As the Harvey children grew, the Harveys had as many as five cars parked on the Disputed Way from time to time. Beginning in or around 2001, Ms. Harvey parked an RV at the end of the Disputed Way.

28. From the time Ms. Sousa purchased the Sousa Property up and through the time of this litigation, Ms. Sousa has parked her car on the Disputed Way.

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“As codified in G. L. c. 187, § 2, a claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by 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 or uninterrupted over a period of no less than twenty years.” Boothrovd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007). If the claimant has not been using the property for the required twenty-year period, she can satisfy the requisite period by tacking on “periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” Ryan v. Stavros, 348 Mass. 251 , 264 (1964). [Note 14] Unlike the rules for adverse possession, to establish a prescriptive easement there is no requirement of exclusivity of use. Brooks, Gill & Co., Inc. v. Landmark Prop., 23 Mass. App. Ct. 528 , 533 (1987). The burden of proof rests entirely on the claimant, Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964); and a failure to provide a sufficiency of evidence on any of the elements defeats the entire prescriptive easement claim. See Gadreault v. Hillman, 317 Mass. 656 , 661 (1945).

Ms. Sousa bears the burden to prove than her property enjoys the benefit of a prescriptive easement over the Disputed Way located on the Turner Property. Because Ms. Sousa acquired title to the Sousa Property in 2006, she must rely on her predessors’ ownership under the doctrine of tacking in order to fulfill the requisite twenty-year period. [Note 15]

As an intial matter, the Turners argue that Ms. Sousa has failed to meet her burden of proof on the element of continuity of use because there was no evidence presented of use when the Horans owned the Sousa Property between October 1977 and July 1978. A determination of continuous use is warranted when a pattern of regular use is established. Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985). Continuous use “does not necessarily mean constant use.” Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). In Bodfish, the Supreme Judicial Court stated that:

“The continuity of the enjoyment may be shown by circumstantial evidence; and, in the language of the presiding judge, it is sufficient if the jury find such repeated acts of use, of such a character and at such intervals, as afforded a sufficient indication to the owner of the land that the right of way was claimed against him, and if they find that the way had been used in each of the twenty consecutive years, they would be justified in finding the continuous enjoyment, even though the defendant had not given evidence of actual use in each year of the twenty. This is merely another mode of saying that the circumstances may be such as to satisfy the jury that the use was continuous, even though the direct evidence of actual use as to one or two years in the series may be wanting.” Id. at 319-20.

“If the use occurred as often as the claimant had occasion to or chose to use it, and such use was not interrupted by the rightful owner of the land nor voluntarily abandoned by the claimant, ‘mere intermission is not interruption.’” Holmes v. Zerendow, 14 LCR 424 , 426 (2006), aff’d 70 Mass. App. Ct. 1108 (2007) (rule 1:28), quoting Bodfish, 105 Mass. at 319.

The period of use informing this court’s decision begins in 1966, when the Town of Weymouth constructed the Disputed Way in connection with the installation of public water service. [Note 16] This court credits the testimony of Michael Irving that, beginning in 1966, the Fosters relied exclusively upon the Disputed Way for ingress and egress to the Sousa Property. This use continued for an eleven year period until the Fosters sold the Sousa Property to the Horans on October 28, 1977. Moreover, this court credits the testimony of Ms. Harvey that her family used the Disputed Way as if it was their driveway after they acquired the Sousa Property from the Horans on July 31, 1978. The Harveys’ use of the Disputed Way continued until they sold the Sousa Property to Ms. Sousa in 2006. Therefore, if the requisite twenty-year period was not interrupted by the Horans’ ownership of the Sousa Property, the open, notorious and adverse use of the Disputed Way by Ms. Sousa’s predecessors-in-title would have ripened into a prescriptive easement as early as 1986, and the ancillary issues raised by the Turners would not be material to this decision. [Note 17]

There is no direct evidence of the use of the Disputed Way during the Horans’ ownership. The record, however, establishes the following facts. The Fosters traveled over and parked on the Disputed Way on a daily basis until selling the Sousa Property to the Horans on October 28, 1977. This court credits the testimony of Lamont Healy that the Disputed Way was used to access the Sousa Property in connection with preparing the Healy Plan, which is dated October 17, 1977, and filed with the Horan Deed. The Healy plan shows the Disputed Way as located on the Turner Property. Graham Street and Lawrence Street were impassable by automobile at the time the Healy Plan was prepared and this court credits the testimony of Michael Irving that the Disputed Way was the only way to access the Sousa Property by vehicle. When Ms. Harvey viewed the Sousa Property in connection with her purchasing it from the Horans in July of 1978, she traveled over and parked on the Disputed Way. In fact, when Ms. Harvey purchased the Sousa Property, she thought the Disputed Way was her driveway.

The evidence in this case establishes that Ms. Sousa’s predecessors continually, without interruption by the Turners’ predecessors or the Turners used and enjoyed the Disputed Way for vehicular access to their home for more than twenty years. Such use was done primarily on a daily basis. The period between October 1977 to July 1978, when the court has a limited record of use of the Disputed Way, is not an interruption that prohibits a finding of adverse use. It is a fair inference that during the period of the Horan ownership, the Horans might have used the Disputed Way as often as they had occasion to or chose to use it. Additionally, the evidence did establish that the appearance of the Disputed Way remained the same in July 1978, when the Horans sold the Sousa Property to Sousa, as it was when they purchased it in October 1977.

Also, it is also a fair inference that any use of the Disputed Way by the Horans would not have been met with objection from the Sports. This point is illustrated by the fact that the Sports did not object to Ms. Harvey using and parking on the Disputed Way when she visited the Sousa Property prior to her puchase and by the fact that the Sports never spoke to the Harveys about any issues relating to the Disputed Way when owning the Front Lot of the Turner Property through 1993. Moreoever, even if the Disputed Way was not used for weeks or months in between the Horans’ ownership and the Harveys’ ownership, such a “mere intermission is not interruption.” See Bodfish, 105 Mass. at 319.

With regard to the element that use must be adverse, “[t]he 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.” Truc v. Field, 269 Mass. 524 , 528-29 (1930). It is not material that the right to use the area in dispute was claimed because of a mistaken belief as to the location of the boundary line between the properties of the plaintiff and the defendant. See Boutin v. Perreault, 343 Mass. 329 , 331 (1961) (Holding that the fact that the parties might not have been aware of the location of the boundary line between the two properties was immaterial). Moreover, a use “made without attempted concealment” establishes open and notorious use. Foot v. Bauman, 333 Mass. 214 , 218 (1955).

The Turners maintain that they have successfully rebutted the presumption of adverse use during the Fosters’ ownership of the Sousa Property by explaining there was “other permissive use and the lifelong friendships of the Fosters, the Sports and the Turners.” This court is not persuaded. On the evidence at trial, there is no basis for the conclusion that the Fosters, or anyone else, ever received permission from the Sports, or the Sports’ predecessors-in-title to travel over the portion of the Disputed Way located on their property. [Note 18] Accordingly, this court finds that because the use by Ms. Sousa’s predecessors was for more than twenty years and was unexplained, the use of the Disputed Way was adverse and not permissive. Moreover, the owners of the Sousa Property have never attempted to conceal their use of the Disputed Way, which was the only practical access to the Sousa house, and therefore the use was open and notorious. [Note 19] The prescriptive use is unexplained and, therefore, presumed to be adverse.

In sum, this court finds that Ms. Sousa has met her burden of proving use which is adequate to establish an easement by prescription for vehicular ingress and egress over the Disputed Way.

The extent of a prescriptive easement is “fixed by the use through which it was created.” Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962). The use to which the Disputed Way has been put to is for vehicular access to the Sousa Property and for parking. From 1966 through 1977, the Fosters, and their invitees and guests would park at the end of the Disputed Way. When Mr. Healy and his crew did their survey work in 1977, cars were parked at the easterly end of the Disputed Way. The Harveys, and, sporadically, their invitees and guests, parked on the Disputed Way throughout the duration of their ownership of the Sousa Property, but the evidence does not establish parking for more than two vehicles for any requisite twenty-year period. As a result, the prescriptive easement use is fixed at two automobiles.

For the reasons set forth above, this court finds and holds that Ms. Sousa has established an easement for vehicular passage appurtenant to the Sousa Property over the Disputed Way located on the Turner Property, with the right of the owner of the Sousa Property to park no more than two vehicles at the eastern terminus of the Disputed Way.

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In light of the foregoing decision establishing prescriptive rights over the Disputed Way benefiting the Sousa Property, it is hereby ORDERED that Ms. Sousa has until September 30, 2013, to provide this Court with a plan prepared by a surveyor delineating the current location of the Disputed Way. The submitted plan can be recorded with Norfolk County Registry of Deeds and attached to the Judgment, which the court will issue upon receipt of the plan from Ms. Sousa.