Plaintiffs Joseph E. Tonello and Tina L. Tonello (together, "Plaintiffs") filed their unverified Complaint on January 8, 2007, seeking to quiet title, pursuant to G. L. c. 240, § 6-10, to the use of Wood Street (the "ROW") which abuts their property located at 19 Lake Street, Halifax, Plymouth County, Massachusetts ("Plaintiff Property"), based on their adverse possession of the ROW. [Note 1] Defendants William Shaughnessy, Katherine Shaughnessy, Katherine A. Shaughnessy, as Trustee of Chelsea Shaughnessy Minors Trust, and Katherine A. Marble, as Trustee of Kristy Lee Marble Minors Trust (the "Wamsutta Avenue Shaughnessys") filed their Answer and Counterclaim on January 30, 2007, alleging that Plaintiffs do not own the ROW, the ROW is a public way and a public access to a great pond, and that they have prescriptive rights in the ROW. [Note 2] Defendant Corine M. Pilotte ("Pilotte") filed an Answer on February 2, 2007. [Note 3] On February 6, 2007 Defendants Dino and Elizabeth Pacini (the "Pacinis") filed their Answer. Defendants Bradley and Carolyn Marsh (the "Marshs") filed their Answer on February 7, 2007. On February 8, 2007 Defendant Thomas J. O'Keefe II ("O'Keefe") filed his Answer. [Note 4] Defendants Brendan C. Aiguier and Elise M. Donohue ("Aiguier/Donohue") filed their Answer and Counterclaim on March 5, 2007, alleging easements by implication and prescription. Plaintiffs filed their Reply to the Counterclaim of Aiguier/Donohue on March 30, 2007, and their reply to the Wamsutta Avenue Shaughnessys' Counterclaim on April 5, 2007. A case management conference was held on April 13, 2007. On May 16, 2007, Defendants Calvin W. Sturge, Geraldine H. Sturge, Sharon N. Chase and Thomas A. Chase were defaulted. [Note 5] Plaintiffs, Aiguier/Donohue and the Marshs filed a Stipulation on January 15, 2008, in which Plaintiffs gave Aiguier/Donohue and the Marshs permissive walking access to East Monponsett Lake over the ROW for certain purposes. Defendant Charlotte Hill ("Hill") filed an Appearance on August 21, 2007, and an Answer and Counterclaim and Crossclaim on July 10, 2008, alleging easements by implication and prescription. [Note 6] The parties attended a pre-trial conference on September 14, 2009, at which this matter was converted to a summary judgment on title issues, and O'Keefe was defaulted.
On October 14, 2009, Defendants Hill, Wamsutta Avenue Shaughnessys, Aiguier/Donahue [Note 7], the Marshs [Note 8], and the Pacinis [Note 9], filed their Motion for Partial Summary Judgment. Plaintiffs filed their Opposition on November 16, 2009. A hearing was held on the partial summary judgment motion on February 10, 2010. At that time, the parties decided to continue the hearing until Monponsett could be served as a Defendant and attend the hearing. Monponsett filed an Answer and Counterclaim on March 12, 2010, alleging that Monponsett holds legal title, by deed, to Wood Street in trust for the benefit of all Lot Owners; Plaintiffs filed their Reply on July 9, 2010. A second pre-trial conference was held on October 14, 2010, at which this matter was converted back to a summary judgment. On November 15, 2010, Hill, the Wamsutta Avenue Shaughnessys, and Monponsett (together, the "Litigating Defendants") filed a second Motion for Partial Summary Judgment. Plaintiffs filed their Opposition and Cross-motion for summary judgment on December 15, 2010. A hearing was held on all motions on March 19, 2011, and a decision ("Decision 1") was issued on May 20, 2011. Pursuant to Decision 1, this court determined that Plaintiffs owned the fee interest in one-half of the ROW pursuant to G. L. c. 183, § 58 (the Derelict Fee Statute) and Monponsett owned the fee interest in one-half of the ROW pursuant to the 1890 Deed (hereinafter defined).
At a status conference on July 12, 2011, the parties agreed to the joint use of the ROW for the summer of 2011, which was confirmed by Order of this court dated July 12, 2011. The parties attended a pre-trial conference on September 19, 2011. A site view and the first day of trial at the Plymouth Superior Court was held on Monday, May 14, 2012. Defendant William Shaughnessy ("Lake Street Shaughnessy") was defaulted at that time. [Note 10] The second and third days of trial were held on May 15 and 16, 2012, at the Land Court in Boston. The parties filed their post-trial briefs on July 23, 2012, and at that time the matter was taken under advisement.
At trial, testimony was given by Plaintiffs' witnesses Joseph Tonello (Plaintiff), Thomas Chase (owner of property across street from Plaintiff Property), Tina Tonello (Plaintiff), and rebuttal witness Katherine Shaughnessy (Defendant); and by the Litigating Defendants' witnesses Robert Badore (Halifax Highway Department surveyor), Charles Seelig (Halifax Town Administrator), Lawrence Silva (registered professional engineer), Kathleen Drinan (Halifax Health Agent), Elizabeth Pacini (former owner of property across street from Plaintiff Property), Denise Murphy (former owner of Lake Street Shaughnessy Property), Charlotte Hill (Defendant), and William Shaughnessy (Defendant). There were fifty-two exhibits submitted into evidence, some with multiple counterparts.
Based on the sworn pleadings, the evidence submitted at the summary judgment hearing and at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
Facts Concerning Record Title
1. A plan titled "Plan E, Monponsett Lake and Land Company Halifax, Plymouth Co. Mass." dated July 1888, prepared by A. H. French (the "1888 Plan") and recorded with Plymouth County Registry of Deeds (the "Registry") at Plan Book 1, Page 42, shows a subdivision of property on East Monponsett Lake (the "Lake") in Halifax, MA. The 1888 Plan shows 217 sequentially numbered rectangular lots (1410 to 1626), and streets named Lake Street, Wood Street, Monponsett Street, Wamsutta Ave, Holy Street, Water Street and Bower's Landing. Water Street, Holly Street, Wood Street, and Bower's Landing all provide access to the Lake.
2. Jacob W. Wilbur ("Wilbur") conveyed Lot 1528 as shown on the 1888 Plan to James F. Gallagher by deed dated August 23, 1888, and recorded with the Registry on September 5, 1888, in Book 564, Page 367. This deed references the 1888 Plan.
3. Wilbur conveyed Lot 1529 as shown on the 1888 Plan to Terence Gallagher by deed dated August 23, 1888, and recorded with the Registry on September 5, 1888, at Book 564, Page 371 (the "Gallagher Deed"). The Gallagher Deed references the 1888 Plan. Lot 1529 abuts the ROW.
4. Plaintiffs own Plaintiff Property (Lots 1528 and 1529 as shown on the 1888 Plan) by deed of Vincent J. Tonello and Ann L. Tonello to them dated December 31, 1991, and recorded with the Registry at Book 10677, Page 260. [Note 11] Plaintiff Property is known as 19 Lake Street, Halifax, MA.
5. Wilbur conveyed Lots 1530 and 1531 (the "Lake Street Shaughnessy Property") as shown on the 1888 Plan to Fannie J. Fisher ("Fisher") by deed dated August 23, 1888, and recorded with the Registry on June 29, 1904, at Book 584, Page 335 (the "Fisher Deed"). This deed references the 1888 Plan. Lot 1530 abuts the ROW. The Lake Street Shaughnessy Property is known as 17 Lake Street, Halifax, MA.
6. Wilbur conveyed "all the streets" on the 1888 Plan to The Monponsett Improvement Association by deed dated September 18, 1890 (the "1890 Deed"), and recorded with the Registry on October 31, 1891, at Book 622, Page 493. The 1890 Deed states that Monponsett "agrees as a part of the consideration of this deed to hold said property for the benefit of the lot owners" (the "Lot Owners") as shown on the 1988 Plan.
7. Monponsett was incorporated on June 20, 1905. Monponsett Improvement Association conveyed "all the streets" on the 1888 Plan to Monponsett by deed dated July 17, 1905 (the "1905 Deed"), and recorded with the Registry at Book 922, Page 41. It is uncontested that Monponsett was involuntarily dissolved on August 12, 1963 for failure to file annual reports. Monponsett was revived by Revival Certificate dated June 9, 2009 issued by the Secretary of the Commonwealth (the "Revival Certificate"). The Revival Certificate states, "[Monponsett] is revived for all purposes and without limitation of time with the same powers, duties and obligations as if the corporation had not been revoked of dissolved."
8. Denise M. Murphy took title to the Lake Street Shaughnessy Property in 1991, and conveyed the Lake Street Shaughnessy Property to Defendant William Shaughnessy (Lake Street Shaughnessy, defined, supra) by deed dated December 1, 2006, and recorded with the Registry at Book 33768, Page 322. [Note 12]
9. By deed dated June 22, 2009, Lake Street Shaughnessy conveyed to Plaintiffs "[a]ll my right, title and interest in and to that portion of Wood Street situated between Lot 1530, being land of the Grantor herein, and Lot 1529, being land of the Grantee herein, all as shown on [the 1888 Plan]."
Layout of the ROW
10. The ROW is thirty feet wide and has never been constructed as a road.
11. A plan entitled "Plan of Land" dated May 10, 2012 prepared by Silva Engineering Associates, P.C. ("Silva") for 19 Lake Street, Halifax, MA (the "2012 Plan"), depicts the ROW as it exists today. The Plan entitled "Septic System Design Plan" dated September 17, 1999 and prepared by Silva for Plaintiffs (the "1999 Plan"), shows a previous representation of the ROW.
12. Prior to 1964, the ROW was overgrown with brambles and was akin to a wooded area with trees, rocks, and briars. Vehicles were unable to traverse the ROW in 1964 because of its overgrown condition at that time.
Plaintiffs Use of the ROW
13. In 1964, Joseph Tonello's parents (the "Vincent Tonellos") purchased Plaintiff Property and began to live in the house on Plaintiff Property. In the late 1960s, the Vincent Tonellos cleared the ROW and added loam and seed to the entire ROW. During the same period, they also built a shed (the "Old Shed") and a fence (the "Old Fence") extending roughly eight feet into the ROW and running parallel to the boundary line from Lake Street to the edge of the Lake.
14. In 1974, the Vincent Tonellos replaced a rock wall on Plaintiff Property with a stone block wall (the "Block Wall"), which runs parallel to the Lake, extends into the ROW approximately ten feet, and is several feet from the edge of the Lake.
15. In 1989, Plaintiffs began living at Plaintiff Property.
16. In 1991, Plaintiffs hosted a wedding on Plaintiff Property and used the entire portion of the ROW to the west of the Old Fence to park cars.
17. In 1999, Plaintiffs moved their home from Lots 1529 and 1530 (Plaintiff Property) onto a portion of the ROW while a new foundation was constructed on Plaintiff Property. Joseph Tonello testified that the house blocked all access to the ROW when it was located thereon. Approximately four to five months later, Plaintiffs' home was relocated back to Plaintiff Property on the new foundation. After the relocation, Plaintiffs reseeded the entire ROW and installed an irrigation system within the layout of the ROW (including within the portion of the ROW to which Monponsett holds title), as shown on the 2012 Plan. In 2000, Plaintiffs reconstructed a shed (the "Shed") and a vinyl fence (the "Fence") on the ROW in substantially the same location as the Old Shed and the Old Fence. [Note 13]
18. From 2001 to 2007, Plaintiffs periodically maintained a fence along the majority of the width of the ROW, including a portion of the ROW owned by Monponsett, parallel to the water and near the Lake's edge (the "Goose Fence"). This fence was erected by Plaintiffs to keep geese from spoiling the grass on the ROW. Plaintiffs also erected a "No Trespassing" sign towards the middle width of the ROW only a few feet from Lake Street, but it is unclear when this sign went up. Finally, Plaintiffs state that they and their predecessors stored their dock on the ROW during the winter months paying no regard to the particular half of the ROW on which they stored their dock.
19. The 2012 Plan depicts the Fence running in a north-south direction from the Shed down to the Block Wall only several feet from the edge of the Lake. The area of the ROW encompassed by the Shed, the Fence, a line of shrubs, and the Block Wall constitute the Fenced Portion (the "Fenced Portion") of the ROW; the remainder is the Unfenced Portion (the "Unfenced Portion") of the ROW. [Note 14]
20. Since the late 1960s, Plaintiffs and the Vincent Tonellos have been using the Unfenced Portion of the ROW for recreational activities, such as for cookouts, volleyball, parking cars, and launching, retrieving, and storing boats and docks. Joseph Tonello, beginning in 1989, and the Vincent Tonello's prior to that, maintained the Unfenced Portion of the ROW by cutting the grass.
Use of Row by Other Lot Owners
21. From 1985 to 2006, the Wamsutta Avenue Shaughnessys (who are Lot Owners and live on the Lake, approximately twelve lots away from Plaintiffs) launched and retrieved a 12' x 12' diving platform from the ROW. There were at least two years, although William Shaughnessy did not discuss which years, during this time period, however, when the Wamsutta Avenue Shaughnessys did not launch the diving platform from the ROW because the platform was in disrepair. William Shaughnessy also testified that he "launched various boats" from the ROW between 1985 and 2006. [Note 15] In 2006, Plaintiffs called the police when William Shaughnessy attempted to use the Unfenced Portion of the ROW to launch a paddle boat.
22. Hill testified that she often walked along the ROW to access the Lake and the beach to swim. Hill also testified, though she did not specify any years, that Plaintiff Tina Tonello allowed Hill to hang her clothes along the clothesline on the ROW. Although uncertain as to years, Hill and her late husband would use the ROW to launch canoes and other non-motor boats into the Lake. This was often done with the assistance of Joseph Tonello. Finally, Hill testified that when using the ROW to access the beach with her grandchildren, she "trained the children to ask" permission from Plaintiffs to use the ROW. [Note 16]
23. Thomas Chase ("Chase") testified that he owns a home on lots 1498 and 1499 as shown on the 1888 Plan, which is directly across from Plaintiff Property. Elizabeth Pacini ("Pacini"), Chase's sister, owned property on Wood Street, as shown on the 1888 Plan, from 1976 to 2009. Chase is a Lot Owner and Pacini used to be a Lot Owner until 2009. [Note 17] Both Chase and Pacini testified that their family have been using the Unfenced Portion of the ROW without anyone's permission from 1946, when their parents were Lot Owners, through 1989. They used the ROW to access the Lake, to launch and retrieve boats, and to skate during the winter months. Pacini also testified that her family (including Chase) cut the grass on the ROW, although this task was most often completed by Plaintiffs and their predecessors.
24. On a number of unspecified occasions, Denise Murphy used the Unfenced Portion of the ROW when she lived at Lake Street Shaughnessy Property, from 1979 to 2006, to park her car and to chat with neighbors.
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In Decision 1, this court established that Plaintiffs and Monponsett each own one-half of the ROW pursuant to the Derelict Fee Statute and through the 1890 Deed, respectively. [Note 18] This court did not, however, make any ruling in Decision 1 with respect to alleged easement rights in the ROW. The central issue in this case is the respective rights of the parties in the ROW. Plaintiffs argue that Monponsett is not a valid legal entity and cannot assert legal claims on its behalf or on behalf of the other Litigating Defendants. The Litigating Defendants deny this allegation. Notwithstanding Decision 1, the Litigating Defendants assert that Plaintiffs do not own a one half interest in the ROW because Plaintiff Property does not "abut" the ROW as contemplated by the Derelict Fee Statute. The Litigating Defendants thus contend that Monponsett owns the entire fee interest in the ROW and holds such interest for the benefit of all Lot Owners to use the ROW for all reasonable uses and purposes. Next, Hill and the Monponsett Avenue Shaughnessys assert an easement in the entire ROW through an easement by implication or prescriptive rights. Plaintiffs deny that Hill and the Monponsett Avenue Shaughnessys have an easement by implication or prescription. Plaintiffs further allege that to the extent the Litigating Defendants have any interest in the ROW via the 1890 Deed, Plaintiffs have acquired the fee interest to that one half portion of the ROW via adverse possession. Finally, Plaintiffs contend that Monponsett abandoned whatever rights it had in the ROW. I shall examine each of these issues in turn.
I. Monponsett as a Legal Entity
Monponsett was incorporated on June 20, 1905, but was involuntarily dissolved on August 12, 1963, for failure to file annual reports. Monponsett was revived by the Revival Certificate on June 9, 2009. Plaintiffs claim that Monponsett is a shell corporation revived for the purpose of advancing a claim in the ROW, and that Monponsett has no legal right to advance its claims. Plaintiffs provide no case law to support their argument in this regard. G.L. c. 156B, § 108 governs the revival of both for profit and non-profit corporations. G.L. c. 156B, § 108 states in relevant part:
Upon the filing of a certificate reviving a corporation for all purposes, said corporation shall stand revived with the same powers, duties and obligations as if it had not been dissolved, except as otherwise provided in said certificate; and all acts and proceedings of its officers, directors and stockholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, shall, except as aforesaid, stand ratified and confirmed.
Pursuant to the cited statute and the Revival Certificate, Monponsett was revived for all purposes, and without limitation of time, with the same powers, duties and obligations as if the corporation had never been dissolved. Based on the 1905 Deed, it appears that a primary purpose of Monponsett was to hold title to the streets within the subdivision of land as depicted on the 1888 Plan. Now revived, Monponsett holds the same powers, e.g. the power to hold land for the benefit of all Lot Owners, as it did prior to its dissolution. Moreover, the only claim advanced by Monponsett is its claim to record title to a portion of the ROW, which issue was litigated in Decision 1. At that time, Plaintiffs made no objection with respect to the shell status of Monponsett. Monponsett cannot claim rights via adverse possession nor can it claim rights via an easement by implication. As such, I find that Monponsett is a valid legal entity and is not foreclosed from asserting its title rights in the ROW. [Note 19]
II. Rights in the ROW
A. Rights as Determined in Decision 1
As this court has determined in Decision 1, Monponsett owns the fee interest in one-half of the ROW abutting the Lake Street Shaughnessy Property. Pursuant to the 1890 Deed, Monponsett "agree[d] as a part of the consideration of this deed to hold said property for the benefit of the [L]ot [O]wners." The "said property" in the 1890 Deed includes "all streets" as laid out in the 1888 Plan, including Wood Street (the ROW). As such, Monponsett owns the fee interest to the middle line of the ROW abutting the Lake Street Shaughnessy Property for the benefit of all Lot Owners, as shown on the 1888 Plan.
The Litigating Defendants maintain that G.L. c. 183, § 58 (the Derelict Fee Statute) does not apply to Plaintiffs' interest in the ROW because Plaintiff Property does not have frontage along the ROW. In this regard, the Litigating Defendants rely on Emery v. Crowley, 371 Mass. 489 , 494 (1976), which held "[t]he term 'abutting,' in the context of fee ownership of ways after conveyance of property bounded on a way, refers to property with frontage along the length of a way." Id. That court also held, however, that "[t]he statutory silence with regard to real estate at the end of the way signifies that such real estate does not 'abut' the way in the traditional or statutory sense of the word." Id.
It should first be noted that the sole issue before this Court in Decision 1 was record title to the ROW, including any rights in the ROW pursuant to the Derelict Fee Statute. In Decision 1, this court stated it appeared that the Gallagher Deed included the fee to one-half of the ROW pursuant to the Derelict Fee Statute. There is nothing in the trial record to alter this court's opinion with respect to the fee interest in the ROW. The holding in Emery does not apply to this case because Plaintiff Property is not at "the end of the way." As shown on the 1888 Plan, Wood Street continues north of Plaintiff Property and south of Plaintiff Property (referred to as the ROW) down to the Lake. It is abundantly clear that Plaintiff Property is bounded by and "abuts" the ROW. Based on the foregoing, I find that Plaintiffs hold title to the portion of the ROW to the middle line of the ROW as it abuts Plaintiff Property. [Note 20]
B. Easement by Implication in the Entire ROW
Hill and the Wamsutta Avenue Shaughnessys argue that they have an easement by implication in the ROW, which is appurtenant to their land as depicted on the 2008 Plan. [Note 21] Plaintiffs do not argue this point, but they state that Hill and the Wamsutta Avenue Shaughnessys do not have an easement by estoppel in the ROW. The Litigating Defendants do not assert an easement by estoppel in the ROW. [Note 22] "The origin of an implied easement 'whether by grant or by reservation...must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.'" Reagan v. Brissey, 446 Mass. 452 , 458 (2006), quoting Labounty v. Vickers, 352 Mass. 337 , 344 (1967). In determining intent, the court shall inquire as to whether the way "merely existed on paper, or [was] then actually used as appurtenant to the granted premises; or whether [the way] was remote or in close proximity." Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 727 (1971). "[A] grant by implication of an onerous servitude upon other land of the grantor, not necessary for the enjoyment of the land conveyed, is not to be presumed unless such is clearly the intention of the parties." Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corporation, 254 Mass. 350 , 355 (1926). "A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Reagan, supra, at 458, quoting Jackson v. Knott, 418 Mass. 704 , 711 (1994). The burden of proving the existence of an implied easement is on the party asserting it. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105, 187 (1933).
The Wamsutta Avenue Shaughnessys and Hill allege they have implied easement rights in the ROW because the 1888 Plan depicts the ROW as an access way to the Lake. They further allege that the use of the ROW is necessary to their enjoyment of their land because there is no other reasonable access to the Lake. Accordingly, the Wamsutta Avenue Shaughnessys and Hill state that without rights in the ROW, they will be deprived of all access to the Lake.
There are several problems with the arguments set forth in this regard by the Wamsutta Avenue Shaughnessys and Hill. First, neither of these Defendants submitted their deed or the deed of their predecessors into evidence. Without reference to their respective deeds, this court cannot determine whether the deeds reference the 1888 Plan from which the Wamsutta Avenue Shaughnessys and Hill assert rights in the ROW.
Even if the Wamsutta Avenue Shaughnessys and Hill had submitted their deeds which may reference the 1888 Plan, the easement by implication argument would still fail. There is absolutely no evidence regarding the "attendant circumstances" at the time Wilbur executed the first deeds into the predecessors of the Wamsutta Avenue Shaughnessys and Hill. As such, there is essentially no evidence as to the intent of Wilbur at the time he first deeded out lots within the subdivision as shown on the 1888 Plan. Cf. Reagan, supra, at 456 (initial advertisements of subdivision as evidence of common grantor's intent). The 1890 Deed, purporting to convey all streets shown on the 1888 Plan to Monponsett's predecessor, is insufficient evidence to create an easement by estoppel. The issue in this regard is that there is no evidence as to when Wilbur first deeded out the Litigating Defendants' respective lots within the subdivision. As such, this court cannot determine if the 1890 Deed was conveyed in any temporal proximity to the initial deeds to the predecessors of the Litigating Defendants.
Furthermore, the evidence indicates that at the time of the initial conveyances from Wilbur, the ROW was merely a "paper" street rather than constructed and used as access to the Lake. There is no testimony regarding the status of the ROW in the late 19th Century. Joseph Tonello testified that in the mid-1960s the ROW was overgrown and looked like woods. This testimony supports the notion that the ROW had never been used, constructed, or laid out prior to the actions taken by the Vincent Tonello's to clear the ROW. Cf. Kane v. Vanzura, 78 Mass. App. Ct. 749 , 756-757 (2011) (easement by implication in paper street where evidence of use as access to beach by common grantor).
Finally, it is undisputed that the ROW is not reasonably necessary to the Wamsutta Avenue Shaughnessys' and Hill's enjoyment of the Lake. Both the Wamsutta Avenue Shaughnessys and Hill have frontage on the Lake. Moreover, there is no necessity because William Shaughnessy testified that there are several other access points to the Lake. William Shaughnessy testified that one can access the Lake for swimming, fishing, and non-motor boat related activities from the end of Holly Street, as shown on the 1888 Plan. William Shaughnessy also referenced Bower's Landing as another access point to the Lake. William Shaughnessy also referenced access to the Lake for motor-boats and other Lake related apparatus from the Halifax town landing opposite the Lake from William Shaughnessys' property. As such, it is clear that use of the ROW by the Wamsutta Avenue Shaughnessys and Hill is not necessary to their enjoyment of the Lake.
Based on the foregoing, I find that the Wamsutta Avenue Shaughnessys and Hill do not have an appurtenant easement by implication in the ROW. [Note 23]
C. Prescriptive Rights and Adverse Possession
The Litigating Defendants allege that they have established an easement by prescription in the entire ROW. Plaintiffs deny that the Litigating Defendants have established prescriptive rights in the ROW. Plaintiffs then argue that even if such prescriptive rights existed, they have extinguished the Litigating Defendants rights in the ROW through adverse use and, to wit, they have established title to the ROW through adverse possession.
i. Prescriptive Rights of the Wamsutta Avenue Shaughnessys:
Acquisition by prescription of a right of way over land of another requires use or enjoyment "continued uninterruptedly for twenty years." G. L. c. 187, § 2. "[W]herever 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); Tucker v. Poch, 321 Mass. 321 , 324 (1947). As with adverse possession, the use must be open, notorious, continuous, and adverse. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Boston Seaman's Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985); Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003). Whether the elements of a claim for a prescriptive easement have been satisfied is essentially a factual question for the trial judge. See Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961).
To be considered open the "use must be without attempted concealment." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). To be considered notorious the use must be made known to the landowner, whether directly or indirectly, so that the landowner would know the use if he or she reasonably supervised the property. Id. In the case at bar, William Shaughnessy testified that he backed his Jeep, towing the 12' x 12' diving platform, down the ROW (including Plaintiffs' portion of the ROW) to launch the diving platform into the Lake almost every year since 1985. William Shaughnessy further testified that without regard to which side of the ROW he was on, he would back the Jeep down the ROW and take the diving platform out of the Lake once every year on a seasonal basis. On at least two occasions, according to William Shaughnessy, Joseph Tonello stood by and watched him as he used the ROW to launch the diving platform. William Shaughnessy also alleges he launched "various boats" from the ROW beginning in 1985 and continuing through 2006. There is no evidence in this regard, however, as William Shaughnessy never indicated the extent of his use of the ROW to launch boats, e.g. what kind of boats, how often, during which months, and whether Plaintiffs saw him launch his boats. William Shaughnessy testified that he launched the family paddle boat from the ROW, but he did not state when and for how many years he had done this. With respect to his pontoon boat, he testified that boat was too big to launch from the ROW so he used the Halifax town landing to launch that boat. There is no other evidence with respect to launching of boats by the Wamsutta Avenue Shaughnessys. Notwithstanding the lack of evidence regarding launching of boats, it is clear that the Wamsutta Avenue Shaughnessys' use of the ROW, with respect to at least the launching of the diving platform, was open and notorious.
A use is adverse if the use is made without the consent or authorization of the landowner. See Restatement (Third) of Prop.: Servitudes § 2.16 (2000). An adverse use is an action which interferes with the landowner's property rights and can lead to causes of action for nuisance or trespass. See id. The evidence indicates that the Wamsutta Avenue Shaughnessys were never given permission to use the ROW and the use was adverse to Plaintiffs' rights in the ROW. Moreover, when William Shaughnessy attempted to use the ROW in 2006, the police had to be summoned to the scene. As such, the Wamsutta Avenue Shaughnessys' use of the ROW was adverse.
A use does not have to be constant over the twenty year period to be considered continuous and an intermission in the use does not equal interruption. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). Acts of possession that are "few, intermittent and equivocal" are insufficient to serve as a basis for adverse possession. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). Seasonal use does not defeat a claim for prescriptive rights. See Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961).
William Shaughnessy testified that at least twice a year, from 1985-2007, he "launched and retrieved boats, various boats, and primarily a 12' x 12' wooden floating diving dock." (Emphasis supplied). On cross-examination, however, he testified that for at least two years, the floating dock was not launched from the ROW because it was in disrepair. [Note 24] During the years of disrepair, the Wamsutta Avenue Shaughnessys failed to show any use of the ROW. There is no evidence with respect to the launching of "various boats" from the ROW. As discussed, supra, the only two boats that were discussed were (1) a pontoon boat and (2) the family paddle boat. There is absolutely no evidence regarding when the launching of the paddle boat began, how often this occurred, and during which years this use was prevalent. The burden is on the Wamsutta Avenue Shaughnessys to prove a continuous twenty year period of use, which they have failed to do because of the lack of evidence regarding launching of boats and the several lapses in time regarding the floating dock. [Note 25] Accordingly, I find that the Wamsutta Avenue Shaughnessys have not established prescriptive rights in the ROW.
ii. Prescriptive Rights of Hill:
Hill's claim of prescriptive rights is sketchy at best. See, supra, for a discussion of the elements of prescriptive rights. Hill testified that she used the ROW as a walking path to access the lake from 1984 through at least 2007. Hill did not differentiate as to whether she walked along the Monponsett half or Plaintiffs' half of the ROW. To obtain prescriptive rights in the entire ROW, Hill must affirmatively prove that she used Plaintiffs' portion of the ROW as access to the beach. She has failed to make any showing in this regard. Moreover, Hill testified that Mrs. (Tina) Tonello would allow her to hang her clothes on a clothesline located within the Plaintiffs' portion of the ROW. Moreover, Hill testified that she trained her granddaughters to ask Plaintiffs' permission to walk along the ROW and that Hill herself may have asked Plaintiffs' permission to walk along the ROW. As such, whether or not Hill's use of the ROW was continuous for twenty years, all of the evidence indicates that such use was permissive and not adverse. Based on the foregoing, I find that Hill has not established prescriptive rights in the ROW.
iii. Plaintiffs' Adverse Possession Claim:
Plaintiffs' claim of adverse possession is two-fold. Plaintiffs claim that they have acquired the fee interest in the entire ROW via adverse possession. Plaintiffs also claim they have extinguished any easement rights of the Litigating Defendants in both the Monponsett half of the ROW and Plaintiffs' half of the ROW. As determined, supra, however, the Litigating Defendants have not established any rights in Plaintiffs' half of the ROW via prescriptive rights. As a result, Plaintiffs do not need to prove that they have extinguished any of the Litigating Defendants' rights in Plaintiffs' half of the ROW.
The elements of adverse possession have been discussed, supra. However, since Plaintiffs claim title to the ROW via adverse possession rather than merely prescriptive rights in the Monponsett portion of the ROW, Plaintiffs must prove exclusive use of the ROW. "Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (emphasis supplied). To make out their claim for adverse possession, Plaintiffs are able to tack on the use of their predecessors, the Vincent Tonellos. The majority of the evidence relating to Plaintiffs' adverse possession claim relates to Plaintiffs' use of their half of the ROW. Plaintiffs have maintained at least three fences on their half of the ROW, beginning in 1964. Also beginning in the early 1960s, Vincent Tonello began clearing the entire ROW, planting grass, and using the ROW as if it were his yard. The testimony of Joseph Tonello indicates that he and his family have continued such use of the ROW as if it were their yard for many years thereafter. For example, the Vincent Tonellos would hold cookouts, play volleyball, and launch boats from the ROW. Plaintiffs held a wedding at Plaintiff Property in 1991 where they parked cars blocking the ROW. In 1999, Plaintiffs moved their home onto the ROW, taking down the Old Fence and the Old Shed as well. In 2000, Plaintiffs moved the home back to its foundation and rebuilt the Fence and the Shed in its same location. Plaintiffs also installed an irrigation system on a portion of the ROW owned in fee by Monponsett. In summary, beginning in the 1960s, Plaintiffs used the entire ROW as if it were their yard, i.e. maintaining the grass, entertaining company, and using the ROW to access the Lake. Such use of the entire ROW was open and notorious for said time period.
Plaintiffs' claim to the fee interest in the ROW via adverse possession fails, however, because it is clear that Plaintiffs' use of the Unfenced Portion of the ROW has not been exclusive for the statutory twenty year period. Plaintiffs erected a "goose fence" near the waters edge to keep geese from entering the ROW from the water. Plaintiffs also erected a "No Trespassing" sign on the ROW near Lake Street. [Note 26] Plaintiffs claim to have stored their docks on the ROW for forty-five years and that this blocked the ROW; however, they have failed to provide sufficient evidence to support this claim.
Notwithstanding the foregoing, Plaintiffs did not exclude either Hill, the Wamsutta Avenue Shaughnessys, or other Lot Owners from the Unfenced Portion of the ROW. The Litigating Defendants produced credible testimony relating to the use of the ROW by several Lot Owners. Chase and Denise Murphy's husband had both cut the grass on the ROW on occasion. There was also testimony that the Wamsutta Avenue Shaughnessys launched and retrieved boats and the floating docks from the ROW on many occasions between 1985 to 2006. William Shaughnessy testified that he used both Plaintiffs' half and the Monponsett half of the ROW to back his Jeep down to the lake in order to launch the floating dock. [Note 27] In conjunction with her ownership of the Lake Street Shaughnessy Property from 1979 to 2006, Denise Murphy testified that on a number of occasions she used the ROW to park her car and talk to people on the beach. Moreover, Chase and Pacini both testified that they and their family have been using the ROW from 1946 to 1989 for recreational activities such as launching boats and ice skating in the winter. This testimony refutes Plaintiffs' claim that their dock blocked all access to the ROW and the Lake in the winter months. As such, Plaintiffs' use of the Unfenced Portion of the ROW has not been exclusive for any period of twenty years.
Based on the foregoing, I find that Plaintiffs' claim of title to the entire ROW based on adverse possession fails. Not only have Plaintiffs failed to establish adverse possession of the Unfenced Portion of the ROW, but they have also failed to prove that they have extinguished any rights held by others over the Unfenced Portion of the ROW.
This court has differentiated between the Fenced Portion of the Row and the Unfenced Portion. The Fenced Portion of the ROW is entirely within the half of the ROW owned in fee by Plaintiffs. The Litigating Defendants have not established an easement by implication in the entire ROW and they have not established prescriptive rights in any portion of the ROW. As such, Plaintiffs have legal title, free of any interest of the Litigating Defendants, to the middle portion of the ROW as it abuts Plaintiff Property. The Fenced Portion is clearly included within this area.
Even if the Litigating Defendants had established an easement by implication in the entire ROW, Plaintiffs could prove that they extinguished such rights in the Fenced Portion of the ROW through adverse use. There is no testimony on behalf of the Litigating Defendants with respect to their use of the Fenced Portion of the ROW. Moreover, the Fenced Portion has been isolated from the Unfenced Portion of the ROW since the 1960's when the Vincent Tonellos first erected the Old Fence and the Old Shed. Since that time, Plaintiffs and the Vincent Tonellos have either excluded the Litigating Defendants or allowed them to enter the Fenced Portion only by permission. The use of the Fenced Portion was clearly open and notorious as all persons testifying indicated that there has been a fence and a shed in substantially the same location for more than fifty years. As such, if Defendants could have established rights in Plaintiffs' portion of the ROW, Plaintiffs would have extinguished those rights with respect to the Fenced Portion of the ROW. [Note 28]
iv. Prescriptive Rights of Plaintiffs:
Plaintiffs claim of adverse possession fails because they have not established exclusive use over the Unfenced Portion of the ROW (including the Monponsett half of the ROW). To obtain prescriptive rights, however, the party asserting such rights does not need to prove exclusive use. "A prescriptive easement...can be obtained by uninterrupted, open, notorious and adverse use for 20 years over the land of a defendant." Ryan, supra, at 263. It is undisputed that Plaintiffs and their predecessors used the Unfenced Portion of the ROW as a part of Plaintiff Property for more than twenty continuous years. Plaintiffs and their predecessors parked cars, stored their dock each winter, used the ROW for recreational activities, and cut the grass on the ROW since 1964. Joseph Tonello credibly testified that his family has used the ROW as part of their yard beginning in the mid-1960s when his father cleared and loamed the ROW. There is no evidence that permission to use the Unfenced Portion of the ROW was given by Monponsett. As such, Plaintiffs use of the Unfenced Portion of the ROW has been open, notorious, continuous, and adverse for more than twenty years. As such, I find that Plaintiffs have established prescriptive rights over the Monponsett half of the ROW to use that portion of the ROW in a manner that is not inconsistent with the fee interest of Monponsett. [Note 29]
D. Abandonment by Monponsett:
Plaintiffs argue that the facts in this case warrant a finding of abandonment on behalf of Monponsett, and an abandonment by Hill and the Wamsutta Avenue Shaughnessys, as their rights to the ROW are derivative of Monponsett's deeded rights. Specifically, Plaintiffs assert that the dissolution of Monponsett and its non-existence for forty-six years manifests Monponsett's intent to abandon it rights in the ROW. An easement or interest in land may be deemed abandoned if evidence shows an "intention [by the dominant estate] never again to make use of the easement in question." Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). While evidence of mere non-use of an easement, by itself, is insufficient to establish the intent of abandonment (Willets v. Langhaar, 212 Mass. 573 , 575 (1912)), the "failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158-59 (2009). Plaintiffs' burden to show abandonment by the Litigating Defendants is significant as abandonment requires facts that show "a present intent to relinquish the easement or a purpose inconsistent with its further existence." Dubinsky v. Cama, 261 Mass. 47 , 57 (1927), quoting Parsons v. New York, N. H. & H. R. Co., 216 Mass. 269 , 272 (1913).
In the case at bar, the dissolution of Monponsett does not give rise to an intent to abandon its rights in the ROW. Abandonment requires a showing of intent. Fontanella, supra, at 158-59. As Plaintiffs concede in their post trial brief, there must be an affirmative act of abandonment by Monponsett. The dissolution of Monponsett was involuntary for a failure to file annual reports. Such involuntary dissolution cannot be considered an "affirmative act" in furtherance of an intent to abandon property rights. There is simply no nexus between the dissolution and the abandonment of rights in the ROW. The revival of Monponsett, however, as established by the Revival Certificate, shows Monponsett's intent to retain its property rights. The involuntary dissolution of Monponsett, without more, is insufficient to convince this Court that the Litigating Defendants (or their predecessors) intended to abandon the ROW. [Note 30] Moreover, pursuant to G.L. c.156B, § 108, all acts taken by authorized agents of Monponsett were deemed to have been ratified by the Revival Certificate. Based on the discussion, supra, the Lot Owners, for whose benefit Monponsett owned the streets as shown on the 1888 Plan, continuously used the ROW for various purposes. Some of these Lot Owners are now officers of Monponsett. As such, their acts on behalf of Monponsett, i.e. use of the ROW, are ratified by the Revival Certificate. Such use is clear evidence that Monponsett has not abandoned its rights in the ROW. As a result of the foregoing, I find that Monponsett did not abandon its rights in the ROW. [Note 31]
In summary, Monponsett owns to the middle line of the ROW as its abuts Lake Street Shaughnessy Property and it did not abandon these rights. Plaintiffs own to the middle line of the ROW as it abuts Plaintiff Property. Hill and the Wamsutta Avenue Shaughnessys have failed to establish prescriptive rights and easement by implication in any portion of the ROW. [Note 32] Plaintiffs have failed to show adverse possession of the Monponsett portion of the ROW.
E. The Wamsutta Avenue Shaughnessys and Hill's Rights Through Monponsett
As discussed, supra, pursuant to the 1890 Deed, Monponsett owns one half of the ROW as the ROW abuts Lake Street Shaughnessy Property "for the benefit of the Lot Owners" as shown on the 1888 Plan. Moreover, Monponsett has not abandoned these rights for the benefit of the Lot Owners. Although the Wamsutta Avenue Shaughnessys and Hill did not submit their deeds or their predecessors' deeds into evidence, this court is convinced that the Wamsutta Avenue Shaughnessys and Hill are Lot Owners. William Shaughnessy of the Wamsutta Avenue Shaughnessys testified that he lives at 21 Wamsutta Avenue, Halifax, and that he is a member of the Monponsett Association. Hill testified that she lives on Lake Street next to Plaintiffs. Wamsutta Avenue and Lake Street are both shown on the 1888 Plan. Moreover, Plaintiffs do not challenge that the Wamsutta Avenue Shaughnessys and Hill are Lot Owners. As such, I find that the Wamsutta Avenue Shaughnessys and Hill are Lot Owners. [Note 33]
The Wamsutta Avenue Shaughnessys and Hill have no rights in the ROW through either implication or prescription. Monponsett owns the fee interest in its portion of the ROW for the benefit of the Lot Owners. Therefore, I find that as Lot Owners, the Wamsutta Avenue Shaughnessys and Hill have a beneficial interest in, and the right to use, the Monponsett portion of the ROW. The next issue is the extent of the allowed use of the Monponsett portion of the ROW by the Wamsutta Avenue Shaughnessys and Hill.
It should be noted that the 1890 Deed contained no language limiting the particular use of the "streets" within the subdivision as shown on the 1888 Plan. The 1890 Deed may not grant an express easement in favor of the Lot Owners. The 1890 Deed did, however, expressly create beneficial rights in the Monponsett portion of the ROW in the Lot Owners. The difference between an express easement and a beneficial interest in this context seems to be nothing more than semantics. Therefore, with respect to permitted uses of the Monponsett portion of the ROW by the Wamsutta Avenue Shaughnessys and Hill, this court finds relevant the case law discussing permitted uses by the dominant estate easement holder. "Where the easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted." Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004), citing Parsons v. New York, N.H. 7 H.R.R., 216 Mass. 269 , 273 (1913). The use of the easement "must be consistent with what the parties reasonably anticipated at the time of the establishment of the way." Cerasuolo, supra, at 82. As such, I find that the Wamsutta Avenue Shaughnessys and Hill, as Lot Owners, have the right to use the Monponsett portion of the ROW for all reasonable uses that may have been contemplated at the time Wilbur executed the 1890 Deed. [Note 34] The issue of "reasonable use" is not before this court and this court will accordingly offer no further comment in this regard. [Note 35]
Judgment to enter accordingly.
JOSEPH E. TONELLO and TINA L. TONELLO vs. CORINE M. PILOTTE, CHARLOTTE HILL, BRENDAN C. AIGUIER, ELISE M. DONAHUE, BRADLEY W. MARSH, CAROLYN M. MARSH, CALVIN W. STURGE, GERALDINE STURGE, WILLIAM SHAUGHNESSY, SHARON N. CHASE, THOMAS A. CHASE, DINO PACINI, ELIZABETH PACINI, THOMAS J. O'KEEFE, II, WILLIAM SHAUGHNESSY, KATHERINE SHAUGHNESSY, KATHERINE A. SHAUGHNESSY, as TRUSTEE of CHELSEA ANN SHAUGHNESSY MINORS TRUST, and KATHERINE A. MARBLE, as TRUSTEE OF KRISTY LEE MARBLE MINORS TRUST