Opinion
15-P-1577
03-07-2017
Geoffrey E. STILLWELL & others v. Ralph A. IANNUZZI & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendants Ralph A. and Ann M. Iannuzzi appeal from a Land Court judgment declaring that the plaintiffs are entitled by prescriptive easement to the use of a path (Shellheap Road) located on their property. After a bench trial, a Land Court judge ruled that a majority of the plaintiffs have a prescriptive easement over that portion of the path providing the most direct access to a nearby beach and the village center of Marion. The Iannuzzis argue the Land Court judge erred in finding that the past use of the path by the plaintiffs and their predecessors was adverse rather than permissive. We disagree, and affirm the judgment.
All of the plaintiffs with the exception of Vera E. Vivian, trustee, and Emily M. Paul.
We summarize the facts found by the judge, reserving some facts for later discussion. This dispute originated in the ownership of land in two bordering subdivisions that began development during the 1950's. The Iannuzzis reside on the parcel originally owned and developed by Albert Winters (the Winters parcel). During development of the Winters parcel into a subdivision, Winters installed a road for construction use that is the predecessor of Shellheap Road. The road ran in a north-south direction along the west border of the Winters parcel and connected to Front Street, a public way, at its northern end.
A complete recitation of the facts can be found in the trial judge's thorough memorandum of decision.
The plaintiffs reside mostly on land originally owned by George Crapo located on the other side, or to the west, of Shellheap Road (Crapo parcel). When Crapo hired Winters to develop his parcel into a subdivision, Winters breached a wall that ran between Crapo's land and the west side of the construction road, so that equipment and materials used by Winters for his development could likewise be deployed onto the Crapo parcel.
Testimony from early purchasers of lots in the Crapo subdivision established that residents would regularly walk, bike, and, initially, drive down the construction road. The judge found that Winters did not grant explicit permission to residents to use the construction road, but that he "had no problem with people using the construction road to walk to the beach." Vehicular access ceased after Winters began placing a sawhorse across the northern entrance of the construction road at the beginning of every year. However, the plaintiffs and their predecessors continued to walk down the road. The judge found that Winters was aware of such usage given his frequent presence in the area.
Up until 1984, the Winters parcel remained undivided. The land was eventually sold, and the new owner recorded a plan that reflects the subdivisions in existence today. This plan showed Shellheap Road in the approximate location of the former construction road. On the plan, Shellheap Road connects to Front Street to the north, extends southerly past the Iannuzzis' property (Lot A), and ends in a cul-de-sac on the next lot. Lot A, the closest lot to the intersection of Shellheap Road and Front Street, has been owned by the Iannuzzis since 1995. The predecessors to the Iannuzzis, the one previous owner of Lot A, acquired it in 1988 and built a house that remains on the lot today.
Although Winters had recorded multiple plans, none were implemented. One plan recorded in 1974 designated the construction road as an "Existing Way" but does not depict any connection to the Crapo parcel or other properties to the south.
A copy of the plan is attached to the judge's memorandum of decision as Exhibit 1.
In conjunction with the owners of another lot on the Winters parcel, the Iannuzzis installed a large boulder approximately four feet wide and four feet high at the northern entrance of Shellheap Road with an inscription that read, "SHELLHEAP ROAD, PRIVATE WAY." This was done in 1995, shortly after the Iannuzzis moved into their home on Lot A. Ralph Iannuzzi testified that, despite the boulder, he regularly observed people using the road to access the beach. He also testified that he gave oral permission to some neighbors to pass over his portion of Shellheap Road. The judge discredited Iannuzzi's testimony.
The Streeters (who were not parties to this lawsuit), Susannah Davis, and Ray and Diane Bondi-Pickles.
The judge concluded that because a majority of the plaintiffs' usage of the road was adverse, open, notorious, and continuous for at least twenty years, they had established appurtenant prescriptive easement rights to walk, hand-carry objects, push strollers, and bicycle over a four-foot-wide portion of Shellheap Road, measured from the western edge of the road.
"An easement by prescription is acquired by the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty years." White v. Hartigan , 464 Mass. 400, 413 (2013). An "unexplained use for more than twenty years which is open, continuous, and notorious is presumed to be adverse and conducted under a claim of right. ... Once the presumption arises, the landowner has the burden of rebutting it by showing that the use was permissive." Daley v. Swampscott , 11 Mass. App. Ct. 822, 827 (1981).
The Iannuzzis claim that the judge erred in finding that the plaintiffs' use was adverse. We review the facts for clear error and consider a factual finding clearly erroneous "only if ‘on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.’ " Davenport v. Broadhurst , 10 Mass. App. Ct. 182, 185 (1980), quoting from United States v. United States Gypsum Co ., 333 U.S. 364, 395 (1948). Factual findings "must stand if warranted on any view of the evidence and all reasonable inferences therefrom." Norton v. West , 8 Mass. App. Ct. 348, 350 (1979).
"[I]n an action to establish a right of way by prescription, the question whether the use was under a claim of right, or only permissive is for the [fact finder]." Bigelow Carpet Co . v. Wiggin , 209 Mass. 542, 548 (1911).
"Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White , 74 Mass. App. Ct. 586, 589 (2009). The Iannuzzis rely on testimony from two property owners adjacent to the construction path. One owner testified that Winters "said we're free to use the road because it was access to [F]ront Street." The other witness, whose parents purchased a lot from Winters on Beach Street, testified that Winters had shown them the construction road as a means of going to the beach and downtown. The judge determined that, rather than being indicative of express or implied permission, these statements simply demonstrated that Winters had failed to object to the plaintiffs' and their predecessors' use of the path. On this record, we discern no error.
The witness inherited the property from her parents in 1986.
The Iannuzzis also claim that Winters's acts of control should be interpreted as implied permissive use. The judge, in determining Winters's intent, interpreted these acts as aligned with the purpose of installing the construction road: ease of development. Breaching the stone wall also allowed Winters an easier means of accessing the Crapo parcel during its development. The judge did not interpret Winters's act of placing sawhorses at the Front Street entrance to the construction road as evincing his intent nevertheless to allow access to the road for pedestrians. Again, we discern no error in the finding that the sawhorses either evinced Winters's intention to deny all access to the road or possibly, as well, the failure to effectively assert control over it. See Denardo v. Stanton , 74 Mass. App. Ct. 358, 365 (2009). Finally, the judge was entitled to conclude that the act of clearing the road of all trees and brush in the early 1970's was the result of Winters's granddaughter having been attacked on the road, and did not imply permission for pedestrian access to the road.
Testimony from the original purchaser of Lot A, the Iannuzzis' predecessor, also fails to leave us with a firm conviction that the trial judge erred. Finally, as the Iannuzzis' act of placing a boulder with the words "private way" did not block foot traffic, the judge did not err in finding it was insufficient to establish control. Denardo , 74 Mass. App. Ct. at 365.
The Iannuzzis' predecessor testified that during the time she lived on the property, she regularly observed people from the neighboring houses walk down the portion of Shellheap Road on her lot. She further testified that she never gave anyone permission to use the road nor had anyone ever asked her for permission.
The Iannuzzis also argue that there was no evidence introduced at trial regarding three specific sets of plaintiffs' or their predecessors' use of the path. The record does not support this contention. The trial judge found from documentary evidence and testimony that these plaintiffs and their predecessors owned property near Shellheap Road and used it consistently to travel to the beach and the town. The judge concluded that these plaintiffs and their predecessors used the path "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." Boothroyd v. Bogartz , 68 Mass. App. Ct. 40, 43-44 (2007). We see no error in the judge's findings.
However, they point to no specific evidentiary deficiencies.
Geoffrey E. Stillwell and Ana M. Francisco, James K. Stewart, and Caroline Elkins.
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The judge presented his findings in a comprehensive and thorough memorandum of decision. We discern no error in his factual findings and affirm the judgment.
So ordered .
Judgment affirmed.