Summary
stating the "fact that the plaintiff initiated this proceeding for declaratory relief does not shift th[e] burden to him"
Summary of this case from Adelson v. HananelOpinion
April 30, 1975.
Robert V. Cauchon, for the plaintiff, submitted a brief.
The defendant, as the party asserting an easement over the lane in question, had the burden of proving the nature and extent of any such easement. Swensen v. Marino, 306 Mass. 582, 583 (1940). Fortier v. H.P. Hood Sons, Inc. 307 Mass. 292, 299 (1940). Goldstein v. Beal, 317 Mass. 750, 757 (1945). The fact that the plaintiff initiated this proceeding for declaratory relief does not shift that burden to him. Stop Shop, Inc. v. Ganem, 347 Mass. 697, 703-704 (1964). That other persons, not before the court, may also have rights of passage over or own portions of the lane does not prevent the adjudication as between the plaintiff and the defendant of the latter's rights (if any) in such portion of the lane as may be owned by the plaintiff. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with the foregoing.
So ordered.