ECW REALTY LLC v. CULHANE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff brought suit in Land Court for a declaratory judgment defining the boundary lines for the parties' respective properties -- lot D, owned by the plaintiff, and lot E, owned by the defendants -- and declaring that the defendants have no rights of entry on lot D beyond those set forth by deed. The defendants counterclaimed, asserting among other things that they acquired title to a portion of lot D (driveway area) through adverse possession; that they had a prescriptive easement to use another portion of lot D (lawn area); and that they had a prescriptive easement to use a portion of a private way (segment II) located on lot D. After a bench trial, the judge found that the defendants acquired the driveway area by adverse possession and had a prescriptive easement to use the lawn area “solely for the purpose of entering on foot into and exiting on foot from vehicles parked or standing on the paved driveway serving the house on Lot E.” The judge further found that the parties had reciprocal prescriptive easements to use the “full width” of segment II for vehicular and pedestrian passage. Judgment entered accordingly.

The plaintiff appeals, arguing that the defendants failed to establish adverse possession over the driveway area. The defendants cross-appeal, arguing that the judge defined their prescriptive easement to the lawn area too narrowly, while defining the reciprocal prescriptive easements to segment II too broadly. We affirm in part and vacate in part.

1. Driveway area. “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). The plaintiff contends that the defendants failed to prove exclusivity and adversity because the driveway area was simply an extension of segment II and was “shared” by the various owners of lots D and E since 1987. We disagree.

As the judge found, the driveway area was paved and “created in 1987” by the defendants' predecessors in title, who then used the area for “more or less daily parking of a vehicle.” The judge also found, and it is undisputed, that “there never was any permission given by the record owners of [lot D] to the owners of [lot E] to use the portion of the disputed land.” Furthermore, the undisputed evidence was that the prior owners of lot D never used the driveway area, except after receiving permission from the owners of lot E or on rare occasions to turn a vehicle around.³ The record does not support the plaintiff's claim that the owners of lot D considered the driveway area to be “shared” space. To the contrary, the record amply supports the judge's determination that “the paved portion of the disputed land has been used exclusively by the owners of [lot E] and those associated with it.” Based on these factual findings, which are not clearly erroneous, the judge was warranted in concluding that the defendants met their burden of proving both exclusivity and adversity. See Brandao v. DoCanto, 80 Mass. App. Ct. 151, 154-155 (2011) (judge's factual findings not clearly erroneous and sufficient to establish adverse possession).

We reject the plaintiff's argument, to the extent made, that the adversity element was not met because none of the owners “knew the boundary line with any certainty.” “It is not material that the right was claimed because of a mistaken belief as to the location of the boundary line between the properties of the plaintiff[ ] and the defendant[s].” Kendall v. Selvaggio, 413 Mass. 619, 622 (1992), quoting Boutin v. Perreault, 343 Mass. 329, 331-332 (1961). What matters is that “[t]he nature of the use and the resulting occupancy of the land [were] sufficient to indicate possession by the defendants [and their predecessors in title] under a claim of right.” Kendall, supra at 623.

2. Lawn area. The defendants argue in their cross appeal that the judge abused his discretion by finding that the width of their prescriptive easement over the lawn area was 2.3 feet. According to the defendants, the judge should instead have defined the width as four feet. In support, the defendants point to Aedin Culhane's testimony that she needed “probably” or “approximately” four feet of space in the lawn area to get in and out of her vehicle.

We discern no abuse of discretion. It was the defendants' burden to demonstrate with precision the location of the disputed area, and the judge could properly have concluded that Culhane's testimony was not precise enough to establish the width of the easement as four feet. Cf. Stone v. Perkins, 59 Mass. App. Ct. 265, 268 (2003) (“When ․ someone claims the right to burden real property through conduct only, the absence of a definite location renders doubtful whether the adverse use was sufficiently notorious and continuous to place the potentially servient landowner on notice of the adverse right that is maturing”). Moreover, the defendants offered no evidence regarding the distance their predecessors in title passed over the lawn area to enter or to exit their vehicles.⁴ This failure of proof further defeats the defendants' claim to a broader easement. See id. at 266 (“Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years”).⁵

3. Segment II. Finally, the defendants argue that the judge abused his discretion by finding that the reciprocal prescriptive easements extended the “full width” of segment II. The defendants observe that there was no evidence that the parties or their predecessors in title used the full width of segment II to access their respective lots; according to the defendants, the evidence instead showed, and the judge found, that all the owners drove down the middle of segment II, effectively straddling the boundary line between the lots. The plaintiff does not argue to the contrary.

“[A] person may not acquire an easement of passage by prescription that is not substantially confined to a regular and particularized route.” Stone, 59 Mass. App. Ct. at 265. As we cannot discern from the judge's factual findings support for his conclusion that the reciprocal easements extended the full width of segment II, we must remand this claim for further proceedings.

Conclusion. So much of the judgment dated June 15, 2018, ordering, adjudging, and declaring that the parties acquired reciprocal prescriptive easements over the full width of segment II is vacated, and the case is remanded for further proceedings. In all other respects, the judgment is affirmed.

So ordered.

Affirmed.

FOOTNOTES

3.   The judge found that “the very rare crossing-over of the paved portion by” a previous owner of lot D was not “enough to invalidate ․ exclusivity, given its transitory, highly localized and brief character.” The plaintiff does not argue on appeal that this finding is clearly erroneous.

4.   The defendants purchased lot E in 2010.

5.   The judge derived the 2.3-foot dimension from a plan prepared by the plaintiff in 2016 and admitted as an exhibit. Given the defendants' failure to prove that they used four feet of space for twenty years, the judge was within his discretion to infer that 2.3 feet was sufficient for the purpose of entering and exiting vehicles parked on lot E's driveway.