Opinion
14-P-1028
06-03-2015
BENJAMIN G. SIEBECKER & another v. TONI OREFICE, executrix.
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
On appeal, defendant argues that the judge erred in finding both extinguishment and abandonment of her easement over the plaintiffs' property. We affirm. There was no evidence of the use of this easement in any way by the defendant or her predecessors for its entire 101-year history. It is true that "mere nonuse is insufficient to demonstrate an intent by the dominant estate holder to abandon the easement." Patterson v. Paul, 448 Mass. 658, 668 (2007). However, here, there was also acquiescence in the plaintiffs' conduct on the disputed area, detailed in the judge's decision, which, combined with nonuse, sufficed to support the judge's finding of an intent to abandon. See 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009) (stating "failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment").
Nor was there any error in the judge's conclusion that the easement was extinguished. The judge's factual findings regarding the effect of the plaintiffs' use of the property were adequately supported -- and adequately articulated, compare White v. Hartigan, 464 Mass. 400, 419 (2013) (citing Mass.R.Civ.P. 52[a], as amended, 423 Mass. 1402 [1996]) -- and they, in turn, support his legal conclusion that that use was irreconcilable with the continuation of the easement. See Pappas v. Maxwell, 337 Mass. 552, 557 (1958) (stating that nonuse by a right of way owner coupled with adverse use of it by another "extinguished all rights of the [owner] in that part of the granted right of way"). This provides an independent basis for the judgment.
The defendant argues she was not on notice that the legal theory of abandonment was at issue, but even if that were true, she does not specify what evidence, or even what type of evidence, she would have proffered to defend against a claim of abandonment beyond the admitted evidence of the use or nonuse of the disputed areas of the property by the parties. She thus has failed to demonstrate any prejudice. See, e.g., International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 863 (1983) ("Further, [the defendant] has not demonstrated how she was prejudiced by the alleged lack of notice for trial").
Judgment affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 3, 2015.