Opinion
16-P-721
04-05-2017
LANTERN LANE HOUSE, INC. v. Bryan HUMMEL& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Lantern Lane House, Inc. (LLH), owns real property located at 27 Lantern Lane in Dedham. The defendants, Bryan Hummel and Jennifer Hummel, own abutting property located at 23 Lantern Lane. This appeal arises out of the Hummels' installation of a fence on a gravel roadway that had been used by the owners of both properties for a period of no fewer than twenty years. The erection of the fence impaired LLH's access to the roadway. LLH filed suit, alleging that it had acquired a prescriptive easement and an easement by implication. A Superior Court judge allowed summary judgment in LLH's favor, concluding that LLH as a matter of law had a prescriptive easement to use the roadway. We affirm.
Background. 27 and 23 Lantern Lane are abutting properties that share a common boundary line. Dating back to the 1960s, both properties were owned by Francis and Carol Bedard. Initially, the Bedards lived at 23 Lantern Lane in a home that they had constructed. They then built a home at 27 Lantern Lane, sold the home at 23 Lantern Lane in 1966, and proceeded to live at 27 Lantern Lane. Each property has since had successive owners. The Hummels acquired 23 Lantern Lane in 2012. 27 Lantern Lane was conveyed to LLH in 2001. 27 Lantern Lane is home to severely disabled residents who are either wheelchair-bound or require significant assistance with walking.
At the hearing on LLH's motion for summary judgment, counsel for the Hummels explicitly accepted the facts as summarized by the judge, and the relevant facts are not in dispute.
Since its construction in the mid-1960s, the occupants of 27 Lantern Lane have made use of a gravel roadway as a means of accessing Lantern Lane. The roadway at issue straddles the boundary line between the two properties, though it is substantially located on 23 Lantern Lane, and connects each property's driveway to Lantern Lane. The roadway was used by the occupants of both properties for access to their respective properties.
In 2015, the Hummels erected a stockade fence effectively dividing the roadway along the property line. The fence limits LLH's access to less than one-half of the roadway and, consequently, significantly impairs LLH's access to the roadway.
LLH argued below that 27 Lantern Lane's successive occupants' open, continuous, and adverse use of the roadway for a period in excess of twenty years created a prescriptive easement as a matter of law. The Hummels argued, inter alia, that there were genuine issues of material fact surrounding the relationship between the successive occupants of 23 and 27 Lantern Lane, such that a trial was required to parse out whether use of the roadway was adverse. The judge allowed LLH's motion for summary judgment as to the prescriptive easement claim. The parties entered into an "agreement for final judgment" (agreement), which dismissed, without prejudice, LLH's claim to an easement by implication, but preserved the Hummels' right to appeal the award of a prescriptive easement.
The judge opined at the motion hearing that "there has clearly been an open, continuous, notorious, adverse use for a period of at least 20 years, in all likelihood for a period of 49 years, but most certainly for a period of 36 years."
The judge concluded that, while the Hummels "attempted to raise issues," they were not "successful in raising any factual dispute that would be appropriate for trial."
Discussion. The Hummels argue on appeal that the judge erred by (1) ignoring evidence of "close neighborly relations" between the prior owners of the properties, which would have overcome the presumption that the use of the roadway was adverse, and (2) failing to identify with specificity the location and the scope of the easement. We review the record de novo to determine whether, viewing the evidence in the light most favorable to the Hummels, all material facts have been established and LLH is entitled to judgment as a matter of law. Brown v. Kalicki, 90 Mass. App. Ct. 534, 535 n.5 (2016).
1. Reliance on presumption. To establish an easement by prescription, LLH bears the burden to show by clear proof that its use of the land at issue was (1) continuous and uninterrupted, (2) open and notorious, (3) adverse or nonpermissive under a claim of right, and (4) for a period of not less than twenty years. See G. L. c. 187, § 2 ; Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43–44 (2007). Furthermore, "[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 ... unless controlled or explained." Houghton v. Johnson, 71 Mass. App. Ct. 825, 836 (2008), quoting from Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 763 (1964). Mere acquiescence is not the same as permission. Ibid. See Kendall v. Selvaggio, 413 Mass. 619, 623 (1992) (acquiescence by property owner in use or occupancy of his land by another individual does not inevitably amount to granting permission to individual). With these principles in mind, we turn to the specific issues raised on appeal.
The Hummels argue that we should apply the doctrine of neighborly accommodation, which acts as an exception to the presumption of adversity discussed in Flynn v. Korsack, 343 Mass. 15, 18 (1961). The Hummels suggest that, where there is evidence of a friendly or close relationship between the parties, the presumption cannot be relied on and the question whether the use was adverse cannot be decided as a matter of law on a motion for summary judgment. We disagree.
Massachusetts appellate courts have long considered the nature of the relationship between the parties as one of many factors to consider in determining nonpermissive use. See Kendall, supra at 624; Houghton, supra at 842-843. However, we have not adopted the neighborly accommodation doctrine as an exception to the usual presumption that continuous, notorious, unexplained use is presumed to be adverse or nonpermissive. To the contrary, we have looked to the specific facts of each case. See, e.g., Totman v. Malloy, 431 Mass. 143, 146-148 (2000) (declining to recognize presumption or inference, for purposes of defeating claim of title by adverse possession, of permissive use among close family members; better approach is to examine elements of adverse possession in light of circumstances of each set of claimants).
The Hummels' argument echoes that made by the claimants in Totman. There, the claimants suggested that evidence of a "close" familial relationship should create a presumption of permissive use. Id. at 146. The Supreme Judicial Court rejected this argument concluding that, were it to recognize such a presumption, "related claimants would be required to provide additional proof beyond that needed for similarly situated unrelated parties." Ibid. The court recognized that such a presumption would invariably put state of mind in play, contrary to long-established precedent. See ibid. ("[S]uch inquiry into ‘hostile’ relationships within a family would necessarily require courts to evaluate a claimant's state of mind, an evaluation that has been eliminated from the elements of adverse possession. We have long held that the state of mind of a claimant is not relevant to a determination whether the possession of land is nonpermissive"). For these same reasons, we decline to conclude that evidence of a friendly or close relationship between the parties in the present case, without more, requires an inference of permissive use and defeats the otherwise applicable presumption of adversity.
Finally, the record is devoid of any evidence that the Hummels or their predecessors expressly or impliedly permitted LLH or its predecessors to use the roadway. The Hummels cannot defeat LLH's motion for summary judgment by resting on their pleadings and generally asserting that facts are in dispute; they must allege specific facts that tend to establish the existence of a genuine dispute as to some element of LLH's claim. See Cristo v. Evangelidis, 90 Mass. App. Ct. 585, 589 (2016), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). LLH has provided evidence of its predecessors' open and continuous use of the roadway as a means of accessing 27 Lantern Lane for a period beyond twenty years. The Hummels' allegation that the parties were friendly, without more, is insufficient to overcome the presumption of adverse use to which LLH is entitled. In these circumstances, summary judgment in favor of LLH was appropriate.
The motion judge reached the same conclusion for similar reasons: "I have indicated to counsel in response to our conversation here in the courtroom that friendliness or cordial relationships between neighbors who own neighboring properties is not inconsistent with adverse possession. The facts here, in my judgment, exactly fit the concept of implied acquiescence or forbearance by an owner who knew what was taking place and who tacitly agreed to it. That owner being the owners, the predecessors in interest, to Mr. and Mrs. Hummel on 23 Lantern Lane."
2. Scope of the prescriptive easement. The scope of a prescriptive easement is "fixed by the use through which it was created." Lawless v. Trumbull, 343 Mass. 561, 563 (1962). See Stucchi v. Colonna, 9 Mass. App. Ct. 851, 851 (1980). In the parties' agreement, they stipulate that LLH is entitled to a prescriptive easement "to utilize the ‘Gravel Drive’ (the ‘Roadway’) for vehicular and pedestrian access as depicted and identified (primarily by a dotted line) on the plan of land ..., a copy of which is attached hereto." Per the agreement, the easement "shall extend to the ‘Edge of Gravel’ on the eastern portion of the Roadway which is described as the ‘Gravel Drive,’ and to the retaining wall/curb and the extension of the line of the retaining wall on the western portion of the Roadway," and LLH and its assigns "may use the full length and width of the Roadway for vehicular and pedestrian access" to 27 Lantern Lane.
The Hummels contend that the judge did not properly identify the scope of the easement, if any. We disagree and conclude that the description of the location of the easement included in the agreement, in conjunction with the plan of land attached thereto, is consistent with the use that established the easement and is sufficiently specific to instruct the parties moving forward.
The Hummels further allege that LLH's use of the roadway exceeds that of its predecessors because large vans routinely use the roadway to pick up and to drop off the disabled residents. Thus, they posit, there has been a substantial change in use of the easement in more recent years. See Lawless, supra (although use of easement may change over time, variations in use "cannot be substantial; they must be consistent with the general pattern formed by the adverse use"). We have examined the entire summary judgment record and see no disputed material facts supporting the claim that any purported variation in use of the roadway was inconsistent with the historical pattern of adverse use.
To the extent we have not addressed subsidiary arguments made by the parties, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.