Skip to main content


Appeals Court of Massachusetts.



Decided: February 25, 2021

By the Court (Lemire, Ditkoff & Grant, JJ.2)


The defendant, Home Reconstruction, LLC 3 (developer), appeals from a judgment, after a Land Court bench trial, for the plaintiffs, Timothy and Regina Sullivan. We discern no clear error in the judge's findings that the developer failed to demonstrate that Templeton Way (way) became a public way by prescription, that the developer's predecessor in title abandoned his easement in the way, that the Sullivans acquired title to the way through adverse possession, and that the developer failed to establish an affirmative defense of laches. Further concluding that the judge acted within her discretion in excluding the testimony of city engineers, we affirm.

1. Private way open to public use and prescription. At trial, the developer argued that the way was a public way, adversely possessed by the public through prescription. The developer did not argue at trial that a private way open to public use is not subject to adverse possession. Accordingly, this claim (which in any event is not supported by any case law) is waived. See Kaplan v. Board of Pub. Accountancy, 452 Mass. 1026, 1028 (2008).

Regarding the claim that the way became a public way by prescription, “[i]t is well settled that the creation of a public way by adverse use depends on a showing of ‘actual public use, general, uninterrupted, continued for [the twenty-year prescriptive period].’ ” Fenn v. Middleborough, 7 Mass. App. Ct. 80, 84 (1979), quoting Jennings v. Tisbury, 5 Gray 73, 74 (1855). It must also be established that “the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.” Fenn, supra, quoting Bullukian v. Franklin, 248 Mass. 151, 155 (1924). “[T]he necessary adversity and lack of permissiveness may be inferred by the finder of fact from the uninterrupted use by the public, unexplained, for the prescriptive period.” Fenn, supra. Whether the requisite elements are shown “is essentially a question of fact.” Brandao v. DoCanto, 80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini, 342 Mass. 318, 320 (1961). “We review a judge's findings only for clear error but ‘we scrutinize without deference the legal standard which the judge applied to the facts.’ ” Brandao, supra, quoting Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).

Here, there was no clear error in the judge's determination that the developer failed to prove that the way became public by prescription. In support of its contention, the developer offered evidence of two street lights on the way, located at 3 and 8 Templeton Way, which are maintained by the city of Boston (city), that 10 Templeton Way (the developer's property) gets its power through the telephone pole on the way, and that the way was labeled as a “private way open to public travel” in various Boston street record books.

The judge reasonably found that the developer failed to demonstrate any actual public use of the way. Indeed, the public had no reason to use the way, as it was a dead end street that provided access only to the Sullivans’ properties. The only evidence of use of the way was that Mr. Sullivan and the tenants of 1-9 Templeton Way used it to access those apartments. Mr. Sullivan was the only person who maintained the way. Although evidence that a town has installed light fixtures on a way supports a claim that the way has become public, see Gower v. Saugus, 315 Mass. 677, 683 (1944), the party alleging that the way became public by prescription must demonstrate “the public's ‘adverse use ․ continuous and uninterrupted for a twenty-year period.’ ” Athanasiou v. Selectmen of Westhampton, 92 Mass. App. Ct. 94, 97 (2017), quoting White v. Hartigan, 464 Mass. 400, 417 (2013). The judge reasonably found that the mere existence of city-supported light fixtures was not enough to overcome the lack of evidence of public use. Contrast Athanasiou, supra at 95-97 (town demonstrated prescriptive rights over roadway where used by public continuously for more than twenty years, town oiled, graveled, sanded, and plowed way, patched potholes, cleared fallen tree limbs, and pruned trees on way).

2. Exclusion of testimony. “Whether evidence is relevant is a question ‘addressed to the sound discretion of the trial judge.’ ” Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006), quoting Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991). “Trial judges have ‘broad discretion to make ․ evidentiary rulings conducive to the conduct of a fair and orderly trial.’ ” Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131 (2002), quoting Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197 (1989). We will not reverse evidentiary decisions made by the trial judge “unless there is palpable error.” Carrel, supra.

Here, the judge granted the Sullivans’ motion in limine to exclude testimony of city engineers, stating, “Defendant may present evidence concerning the existence of street lights, and may enter the city of Boston ‘Street Books’ into evidence; however, city employees will not be permitted to testify as to the legal significance [of] listings in the Street Book, or provide any opinion testimony concerning whether the way in question is public or private.” The developer indicated that it intended to offer the testimony of two city engineers to identify the engineering records and discuss how they were created and kept, to establish the existence of public street lighting on the way, to establish that the city does not provide street lighting on private ways unless they are open to public travel, and to show that the Sullivans accepted public services at the way. As the developer was able to introduce nearly all of this evidence, we cannot say that the judge abused her discretion in excluding the testimony of the city engineers.

The street record books were introduced as exhibits at trial. See Fenn, 7 Mass. App. Ct. at 87 (“We do not mean to preclude the possibility of showing that a way is public, as, for example, by means of ancient maps or other records, without showing the means by which the way came to be public”). The developer's witness explained how to read the street record books, and pointed out the references to the way within the books. The witness further described his visit to the city engineer's office, where he was permitted to look at plans “going back to the beginning of when Templeton Street was laid out.” Additionally, the judge admitted as an exhibit a bulletin issued by the Commissioner of Inspectional Services indicating that a private way that is listed in the street directory as open and available for public passage is a “street” for the purposes of applying the Boston zoning code. Although the judge “consider[ed] the relevance to be dubious,” she allowed the witness to testify to the classification of the way with the caveat that she would not “take the street commissioner's opinion as to what was public and whatnot.” Various photographs of the street lights were admitted as exhibits, and Mr. Sullivan conceded that the streetlights are maintained by the city. See Commonwealth v. Wood, 469 Mass. 266, 277 (2014) (cumulative nature of excluded evidence considered in determination that judge did not err in declining to admit it).

Accordingly, the only evidence ultimately excluded was that the city does not provide street lighting on private ways unless they are open to public travel, and that the Sullivans “accepted” public services on the way. As discussed supra, the developer did not argue at trial that the classification of “private way open to public travel” by the city would prevent the Sullivans from adversely possessing the way, or would result in the way becoming public by prescription. See Fenn, 7 Mass. App. Ct. at 83-84 (three ways for road to become public: “(1) a laying out by public authority in the manner prescribed by statute ․; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal ․ coupled with an express or implied acceptance by the public”). Moreover, that the Sullivans accepted public services at the way, if true, would not have assisted the developer, as the developer failed to prove “the public's ‘adverse use ․ continuous and uninterrupted for a twenty-year period.’ ” Athanasiou, 92 Mass. App. Ct. at 97, quoting White, 464 Mass. at 417. See Carrel, 447 Mass. at 446 (relevancy determination within trial judge's discretion). Accordingly, the judge acted within her discretion in excluding the city engineers’ testimony.

3. Sufficiency of the evidence. a. Standard of review. “Whether, in a particular case, [the] elements [of adverse possession] are sufficiently shown is essentially a question of fact.” Brandao, 80 Mass. App. Ct. at 156, quoting Kershaw, 342 Mass. at 320. “Under Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), the reviewing court will accept the findings of a bench trial unless they are ‘clearly erroneous.’ ” Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419, 421 n.1 (2008). “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Id., quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

b. Abandonment of easement. “Whether there has been an abandonment of an easement is a question of intention to be ascertained from the surrounding circumstances and the conduct of the parties.” 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009). “Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement.” Cater v. Bednarek, 462 Mass. 523, 528 n.15 (2012). See Sindler v. William M. Bailey, Co., 348 Mass. 589, 592 (1965) (abandonment “can be shown by acts indicating an intention never again to make use of the easement in question”).

Here, the developer's predecessor in title constructed a ten-foot high, fifty-foot long fence between what is now the developer's property and the way. This fence was standing when the Sullivans purchased 1-9 Templeton Way in 1985, and it stood until 2018, when it was knocked over by a storm.4 Shortly after it was knocked down, the Sullivans replaced it with another six-foot tall, fifty-foot long stockade fence. There were no openings in the fence that allowed someone to travel from the developer's property onto the way.5 See Lund, 281 Mass. at 492-493 (“Physical obstructions on the servient tenement, rendering user of the easement impossible and sufficient in themselves to explain the nonuser, combined with the great length of time during which no objection has been made to their continuance nor effort made to remove them, are sufficient to raise the presumption that the right has been abandoned and has now ceased to exist”); Brandao, 80 Mass. App. Ct. at 157-158 (defendant's contention that plaintiff's use not exclusive for adverse possession purposes because predecessor in title built fence rejected, as “it matters not who erected the fence. The fence stood in the same location for at least twenty-four years and ․ ‘was, of course, open and obvious to all for as long as it stood’ ”); Lasell College v. Leonard, 32 Mass. App. Ct. 383, 390 (1992) (plaintiff's construction of six-foot stockade fence separating his property from way combined with nonuse “established the equivalent of an intentional surrender of the right to use” easement). The developer and its predecessor in title's nonuse of the easement, combined with the fence, erected by the predecessor in title, that had been standing on the property for at least thirty-four years and which blocked access from the property to the way, was sufficient evidence to support the judge's conclusion that the developer's right to use the way had been abandoned.

c. Adverse possession of the way. “Title can be acquired by adverse possession only upon proof of ‘nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.’ ” Mancini v. Spagtacular, LLC, 95 Mass. App. Ct. 836, 841 (2019), quoting Lawrence v. Concord, 439 Mass. 416, 421 (2003). The developer takes issue only with proof that the Sullivans’ use of the way was “exclusive.” “A claimant's use is ‘exclusive’ for purposes of establishing title by adverse possession if such use excludes not only the record owner but ‘all third persons to the extent that the owner would have excluded them.’ ” Brandao, 80 Mass. App. Ct. at 158, quoting Peck v. Bigelow, 34 Mass. App. Ct. 551, 557 (1993).

For over thirty years, a fence stood between the way and the developer's property, creating a dead end and preventing anyone on the developer's property from using the way. See Brandao, 80 Mass. App. Ct. at 157 (“ownership of the original fence is not a prerequisite for establishing exclusive use of the property”); Yagjian v. O'Brien, 19 Mass. App. Ct. 733, 735 (1985) (“Boundary fencing, unbroken, is of a different character. It is meant, unambiguously, to impede passage”). Contrast Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 423 (1979) (that defendant's predecessors in title constructed gates at both ends of way, which allowed plaintiffs to use way, not sufficient to demonstrate adverse use). Mr. Sullivan testified that, since 1985 when he purchased the property, he was there almost every day. In those years, he has never seen anyone aside from himself and his tenants using the way. Indeed, no one would have a reason to use the way other than the landlord and the tenants, because there is “no way to get out.” See New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1931) (petitioner and predecessors in title “had erected and maintained structures and pursued a course of conduct with the deliberate design of excluding everybody ․ and [ ] everybody had been thus excluded”). Contrast Peck, 34 Mass. App. Ct. at 557 (“it appears there was enough traffic over the [disputed area] to repel any conclusion of exclusivity”). As “[t]he [developer does] not contend that [it], [its] predecessors in interest, or anyone else ever used or occupied the parcel during this period,” the Sullivans established that “their use of the disputed area was exclusive.” Brandao, supra at 158.

4. Laches. “Laches is an ‘unjustified, unreasonable, and prejudicial delay in raising a claim.’ ” Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 531 (2008), quoting Srebnick v. Lo-Law Transit Mgt., Inc., 29 Mass. App. Ct. 45, 49 (1990). “Laches is not mere delay but delay that works disadvantage to another.” Colony of Wellfleet, Inc., supra, quoting Moseley v. Briggs Realty Co., 320 Mass. 278, 283 (1946). Laches cannot be shown where “there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts.” Colony of Wellfleet, Inc., supra, quoting Moseley, supra at 284. “The operation of laches generally is a question of fact for the judge, and a judge's finding as to laches will not be overturned unless clearly erroneous.” A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 517 (2005).

Here, we can discern no error in the judge's finding that the developer failed to prove laches. The Sullivans were not afforded the opportunity of a public hearing with respect to the developer's project, nor were they notified that anyone applied for a building permit to construct a new building on the property. Neither the developer nor its predecessor in title notified the Sullivans of a claim of the right to use the way. In August or September 2016, Mr. Sullivan became aware of the developer's intention to use the way when he noticed, once the foundation was installed, that there was a garage facing the direction of the way, and someone on the development told him that vehicles would be exiting through the way. Thereafter, in November 2016, Mr. Sullivan sent a letter to the developer indicating that it had no rights in the way. A year later, he filed the complaint. Mr. Sullivan proceeded expeditiously to notify the developer that he believed that it had no rights in the way once he realized the developer intended to use the way. Contrast Colony of Wellfleet, Inc. 71 Mass. App. Ct. at 531 (shareholder waited twenty-three years after she was questioned about her rights by attorneys to file case).6

Judgment affirmed.


3.   Duc Le, Thu Trang Dinh, Jonathan M. Winn, Alexander V. Brown, and Stephen P. White, individually and as trustees of 126 Monsignor Lydon Way Condominium Trust, were named as defendants in the complaint. The only defendant at trial, and the only appellant, is Home Reconstruction, LLC. A default was entered against the other defendants. See Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974).

4.   Although Mr. Sullivan testified that, in the brief time the fence was down because of the storm, individuals from the developer's property came through the way, the developer did not present evidence of either itself or its predecessors in title ever utilizing the way in the thirty-three years prior to its falling.

5.   The developer's witness testified that there was an “original fence” under the wood fence that the predecessor in title built that “had openings in it,” but he then admitted that there was no way that a person could get through the fence.

6.   The developer's contention that “laches should be calculated further back than 2016” is without merit, as Mr. Sullivan did not know of the developer's intention to use the way until 2016, and laches cannot be shown where “there is no knowledge of the wrong.” Colony of Wellfleet, Inc., 71 Mass. App. Ct. at 531, quoting Moseley, 320 Mass. at 284.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: 19-P-1813

Decided: February 25, 2021

Court: Appeals Court of Massachusetts.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard