Opinion
14-P-594
09-02-2015
MICHAEL F. BURKE & others v. SILVANE SPALENZA & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Silvane Spalenza and Jorge Spalenza, appeal from a Land Court judgment declaring that the parties are bound by an easement for a driveway through their property to the plaintiffs' abutting property, in conformance with a plan adopted by the judge depicting the scope and location of the driveway.
The Bank of New York Mellon (bank), as an interested party and holder of a mortgage given by Silvane Spalenza, filed an answer to the plaintiffs' complaint in the Land Court on January 24, 2012, but did not participate in the proceedings that followed. Our docket shows that after the defendants' appeal was entered in this court on April 17, 2014, separate notices of withdrawal as counsel for the bank were filed by three counsel on July 7, 2014.
Background. We briefly summarize the history of this case from the findings of the Land Court judge. The plaintiffs, the Burkes, and the Spalenzas are the current owners of residential properties at 26 and 30 Oakland Street, respectively, in Melrose. Their titles are derived from Charles A. Patch, the original common owner of the land, which he divided and conveyed separately to the parties' predecessors in 1902. At that time Patch granted in both deeds "a right of way over the whole of the driveway as now laid out on said lots." The driveway, subsequently in use and remaining undefined in scope or location, runs upgrade from Oakland street to the Spalenzas' property, turns left crossing their property, and ends at the Burkes' property.
For many years members of the Burke family regularly traveled across the driveway without encountering any interference from the Spalenzas' predecessors in title. After Silvane Spalenza acquired the defendants' property in 2005, and Jorge Spalenza, in 2006, began parking two large utility vans on that property, the plaintiffs experienced difficulties in using the driveway and filed a complaint on November 3, 2011, in the Land Court. They requested a declaratory judgment determining the location on the ground, and the scope and the dimensions of the easement they claimed to hold by their title, and asserted that the Spalenzas had materially interfered with their use of the easement. They also claimed that they possessed a prescriptive easement. The Spalenzas counterclaimed, asserting extinguishment of any easement by adverse possession.
A two-day trial, which included a view, was held on May 16 and 17, 2013.
Discussion. 1. Scope and location of the driveway. Because the driveway granted in the 1902 deeds was described as "a right of way over the whole of the driveway as now laid out," and never further described or depicted on a plan, the parties sought to develop a plan which would show a proper path based on actual historical use which had served both properties without conflict.
The judge found that the driveway "has existed on the ground since the 1902 Deeds, but evidence of its original location has been 'lost in time.'"
"It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed." Labounty v. Vickers, 352 Mass. 337, 345 (1967), quoting from Kessler v. Bowditch, 223 Mass. 265, 268 (1916).
Accordingly, the parties submitted testimonial evidence of past use of the driveway as well as plans developed by a professional land surveyor and civil engineers from which the judge could determine the historical scope and location of the driveway.
We first outline the principal features of the driveway to explain references to those features which will appear in the following discussion. The driveway runs upgrade from Oakland Street toward the Spalenzas' house and a portion of the driveway leading to their garage, then turns left, crossing the Spalenzas' property between a stairway to their front porch and a parking area for three vehicles across the driveway from the house.
a. Use of the driveway by the plaintiffs and the defendants. The judge made the following principal findings on the use of the driveway by the parties and their predecessors, based on trial testimony:
"Edward [Harnish] lived at the plaintiff[s'] Property from 1975 to 1989 . . . [He] regularly traveled across the Driveway in a large panel van, on a daily basis from 1977 to 1989, and in a large twenty-four foot long delivery truck, which he would bring home overnight, on a monthly basis . . . . Edward encountered no interference from the owners of Defendant Property and only small cars were parked in front of the Garage or in Spaces 1-3 [across from the house].
". . .
"The Burkes have lived at [their] Property continuously since 1995 . . . . [They] stated that if a large vehicle is parked in parking space 4 [in front of the garage] and another vehicle is parked in parking space 1 [the space across the driveway which is closest to where the driveway turns], it is very difficult, and sometimes impossible, for a driver to navigate from Oakland Street up the Driveway to [their] Property. The Burkes state that they never had any problems . . . with any of the previous owners of Defendant Property prior to Silvane [Spalenza].
". . .
"When Jorge [Spalenza] moved in to Defendant Property in 2006, he began parking a large utility van in Space 4 in front of the Garage. When either of Defendants' long utility vehicles were parked in parking space 4, . . . [the Burkes] were unable to use their customary route, which would be to drive across part of . . . parking Space 4."
b. The submitted plans. David Dwyer, a professional land surveyor, prepared plans for the Burkes showing the available driveway area on plans labeled Sheet A and Sheet B. He also developed alternatives which superimposed the path that a nineteen-foot long vehicle could take through the driveway on plans designated Sheet A.1 and Sheet B.1.
Paul Dewsnap, a professional surveyor, developed a plan for the defendants dated May 12, 2013. This plan proposed four parking spaces: one 16.5 feet in length, two eighteen feet in length (across the driveway from the house), and one eighteen feet in length in front of the garage.
c. The judge's decision. "[W]e accept the judge's findings of fact as true unless they are clearly erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). Analyzing these plans, the judge found that Sheet A "is consistent with the broad language of the 1902 [d]eeds conveying a right of way over the 'whole of the driveway.'" He noted however, that several conditions of the driveway make it difficult for any driver to negotiate up from Oakland Street. In particular, he referred to the twenty percent grade and the change in pitch of the driveway encountered where the driveway turns when reaching the crest. (Dewsnap noted that he "lost view of the driveway" on an occasion when he drove up the driveway.) The judge found credible the testimony of the Burkes' engineer that negotiating the turn would be difficult if not impossible if a vehicle is parked in the space in front of the garage.
We note that the portions on these plans designated as "available driveway area" take into consideration that there were certain physical alterations affecting the driveway site subsequent to the original grant which have effectively restricted the area available for the driveway. The judge found that the alterations, the paving over of a grassy area across from the defendants' house, the construction of a stairway projecting from the front of the defendants' house, and the conversion of the garage from a two-car garage to a single-car garage, were made by predecessors of the parties between 1967 and the early 1980s.
The judge opined that these difficulties create a need for a reasonable margin of error in setting the path of travel for a vehicle. He found that the evidence shows that the Dewsnap plan favored by the Spalenzas' specified a driveway width of 12.4 feet, which provided a very small margin of error, compared to the width of approximately sixteen feet in the plaintiffs' plan.
The defendants submitted a videotape recording showing a vehicle apparently traveling over the path of the easement proposed by Dewsnap. The judge found that it did not represent actual conditions complained of by the plaintiffs, that is, vehicles parked in both space one and space four. We note that in our viewing of the videotape, we could not determine how close the vehicle came to the edges of the driveway because the edges were covered with snow and the videotape shows only one side of the vehicle's travel.
The judge found that Sheet A allows the plaintiffs to continue to access their property, as they have for many years, through driving over a portion of the driveway in front of the garage, and that "[i]f the area in front of the Garage is allowed to be a parking space for a large vehicle, as depicted in the [defendants'] May 2013 Plan, [p]laintiffs would be prevented from using the [e]asement as they have used it for many years." The judge concluded the easement includes the space in front of the garage and the defendants "cannot park a vehicle in such space in any manner that interferes with Plaintiffs' use of the Driveway."
For these reasons, the judge adopted Sheet A and Sheet A.1 "as a valid depiction of the scope and location of the Driveway, and therefore the parties are bound by the size and location of each parking space as shown on Sheet A.1." There was no error.
2. Prescriptive rights. The judge considered prescriptive use of the driveway "as an alternative theory," noting that "[a] party cannot have both deeded easement rights and prescriptive rights in the same easement." The alternate analysis was to apply only if the plaintiffs are deemed not to have rights based on the 1902 deeds.
"A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of twenty years." Totman v. Malloy, 431 Mass. 143, 145 (2000). See Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 763 (1964). Compare Nocera v. DeFeo, 340 Mass. 783 (1959).
The judge considered whether the plaintiffs satisfied their burden to prove the elements required for prescriptive rights. Actual use of the driveway was established through the testimony of the Harnishes and the Burkes. That use was open and "notorious"; that is, sufficient to provide notice to the defendants of adverse use. Moreover, at no time did the Harnishes or the Burkes ever obtain permission to drive across any portion of the driveway, in particular that portion of the driveway in front of the garage. Finally, the plaintiffs have shown that the use of the driveway, by them and by their predecessors in title, was continuous and uninterrupted for a period of not less than twenty years. Accordingly, even if the judge's finding concerning the location and layout of the plaintiffs' deeded easement were erroneous, we agree that the plaintiffs would hold prescriptive rights to that portion of the driveway in front of the garage as shown on Sheet A and Sheet A.1.
Conclusion. We have not overlooked several other issues raised by the defendants, but we have determined that they do not require discussion. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The request of the plaintiffs for attorney's fees is denied.
In affirming the judgment, we think the following admonition of the Land Court judge to the parties should be repeated:
"This case was ripe for settlement and this court strongly encourages the parties to resolve any further disputes amongst themselves. . . . This court is aware, however, that in certain short term or emergency situations, Defendants may be forced to temporarily idle in the Driveway. All reasonable accommodations should be made by both parties in this regard and the court encourages the parties to display neighborly courtesies to one another. Both parties will be subject to sanctions for any disregard of this Decision and accompanying Judgment for any violations of the terms herein."
Judgment affirmed.
By the Court (Kafker, C.J., Cypher & Green, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 2, 2015.