Opinion
1684CV00079
06-28-2018
TWENTY BARTLETT, LLC v. Frank A. SGARANO et al.[1]
File Date: July 3, 2018
DECISION AND FINDINGS OF FACT AND RULINGS OF LAW AFTER A JURY-WAIVED TRIAL
ROSEMARY CONNOLLY, Justice of the Superior Court
Based upon a view of the disputed area, four days of trial testimony, and after consideration of twenty-one trial exhibits, this Court now makes the following findings of fact and rulings of law. After careful examination and weighing of the evidence this Court concludes that the private way known as Bartlett Place, is, as it was on the 1887 F.O. Whitney plan, a way that runs from Salem Street (easterly) where it takes a sharp left turn, (southerly), and then ends where it intersects what was once North Margin Street, and is now called Wiget Street. Plaintiff’s deed granted him a right of way over all of Bartlett Place. This, the Court finds, includes the disputed area, more specifically that portion of Bartlett Place where it turns southerly and ends where it intersects Wiget Street (the "disputed area"). The disputed area is bounded by what is explained infra as the "Wiget Gate" at one end and the "Bartlett Fence" on the other. The Court finds in favor of the Plaintiff on Count I & V of its Amended Complaint and further finds that the Defendants have not met their burden to prove their affirmative defenses that the Plaintiff abandoned the easement, or, alternatively, that the Plaintiff’s rights over the entirety of Bartlett Place were extinguished by prescription.
For ease of reference, a copy of the Plan, which was marked as Exhibit 2, is attached as an Addendum to this decision.
PRELUDE
The issues in this case harken back to the words from Robert Frost’s great poem, "Mending Walls." With great respect to the poet, and taking a bit of poetic license here, in the middle section of the poem, as the narrator is talking with his neighbor about the need for a wall, the narrator recalls that:
He only says, "Good fences make good neighbors."
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
Why do they make good neighbors? Isn’t it
Where there are cows?
But here there are no cows.
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
And so it is here, are the Wiget Gate and the Bartlett Fence meant to wall in or wall out; and does the Plaintiff, 20 Bartlett Place, have the right to access all of Bartlett Place, including the disputed area between the Wiget Gate and the fence across Bartlett Place? Based on the evidence presented the Court concludes that the Wiget Gate and Bartlett Fence were meant to wall out the public, not the Plaintiff.
FINDINGS OF FACT
The following facts have been found by the Court, based on a fair preponderance of the credible evidence presented at trial, or they are the facts as stipulated to by the parties.
A. THE PARTIES
Nestled into a compact footprint in the North End of Boston, is a private way called Bartlett Place. It is an area where these parties, and their predecessors in title, have lived and worked for generations. The deeds for each of the three properties involved in this suit describe the respective properties as being bounded by "Bartlett Place." The parties agree that Bartlett Place is a private way in the North End. They agree that Bartlett Place is bounded by Salem Street and the passageway that intersects Cooper Street in the North End. However, they dispute whether Bartlett Place is also bounded by what was once North Margin Street, and now called Wiget Street. The answer to that question is yes, and will determine the rights of the parties now engaged in this litigation.
1. 20 Bartlett Place
The Plaintiff is the owner of record of the real property located at 20 Bartlett Place, (North End) Boston, Massachusetts ("20 Bartlett"). Today it is a residential building with several apartments. It is now an investment property managed by Ralph Ianuzzi on behalf the Limited Liability Company (LLC) his son set up after purchasing the property in 2012.
The Court also heard testimony from Louis Monteforte, a witness with historic ties to the neighborhood and 20 Bartlett Place. He lived at that address as a young boy in the 1940s when his grandfather, Charlie Balliro, was the owner of 20 Bartlett and he ran his pushcart business from that location. In the 1943-1947 time period Louis Monteforte’s parents were tenants and then subsequently, in the 1970s, his father bought the building, making improvements to it. Additionally, in the 1970s his father operated a restaurant at the adjacent property, 8-10 Bartlett Place, and Monteforte worked in the restaurant. From the 1940s until 2012, when his mother’s estate sold the property, Louis Monteforte lived, worked and visited the 20 Bartlett Street location.
Mr. Louis Monteforte is a 77-year-old disabled man. He is confined mostly to a wheelchair and has significant health issues. The Court permitted his videotaped deposition testimony to be used at trial in lieu of live court testimony because of his mobility and health issues. The parties had an opportunity to depose him and cross examine him with knowledge that there was, at that time, a pending motion to admit his deposition testimony at trial due to the court finding him "unavailable." Mr. Monteforte no longer lives at the property or in the North End. He has no interest, financial or otherwise, in the outcome of the case.
2. 19 Wiget Street Condominium Trust
The Defendant, 19 Wiget Street Condominium Trust (the "Condominium Trust or 19 Wiget"), consists of the real property located at 19 Wiget Street, (North End) Boston, Massachusetts ("19 Wiget"). The 19 Wiget Condominium consists of one building containing twenty-five (25) residential Units. The Master Deed for 19 Wiget was recorded in 1989. Previously 19 Wiget had been used as a stable and later as a furniture warehouse before being converted to residential condominium units.
The 19 Wiget Street Condominium Trust (the "Condominium Trust") is the organization of unit owners of the Condominium. Pursuant to G.L.Ch. 183A, § 10(b)(4), the Trustees have the power to litigate concerning the common elements of the Condominium.
3. 13 Wiget, L.L.C.
13 Wiget Street is now owned by the recently added Defendant in this suit, 13 Wiget, LLC. Prior to February of 2018, 13 Wiget Street was the home to the Defendants, the Sgaranos and their parents and at one time, their grandparents. Joseph S. Sgarano testified that he lived at an apartment at 13 Wiget from January 8, 1947 until 1994. Even after moving away in 1994, he frequently came to the property to care for his mother, Bettina, who still lived in one of the apartments at that address. Joseph Sgaranos’ mother continued to reside at that location until the Sgaranos sold the property on February 16, 2018 to 13 Wiget, LLC.
Frank A. Sgarano ("Frank Sgarano") and Joseph F. Sgarano ("Joe Sgarano") (collectively the "Sgaranos") were, until February of 2018, the record owners of the real property located at 13 Wiget Street, (North End) Boston, Massachusetts ("13 Wiget"). They continue to have an interest in the litigation according to counsel for 13 Wiget, L.L.C. though not as a property owner.
B. RIGHTS TO BARTLETT PLACE AND THE PASSAGEWAY TO COOPER STREET
As referenced above, in each of the deeds for these properties, 20 Bartlett Place, 19 Wiget Street and 13 Wiget Street, their respective property descriptions state that they have frontage on Bartlett Place. These descriptions and deeds are examined below.
1. 20 Bartlett Street
The Plaintiff’s Deed (Ex. 11) describes 20 Bartlett, in part, as "[c]ontaining 787 square feet, more or less. Together with a right of way through said Bartlett Place and the passageway leading therefrom to Cooper Street, all as shown on said plan." (Emphasis added.) "[S]aid plan" as referenced in Plaintiff’s Deed, is "a plan made by Frank O. Whitney, dated May 14, 1887, recorded with the Suffolk County Registry of Deeds in Book 1771 End ..." (hereinafter the "1887 Plan"). That plan, is critical to understanding where Bartlett Place is, and was, situated.
Ex. 2 is F.O. Whitney’s 1887 plan attached as Addendum A. A slightly modified plan was also used by the parties throughout the trial, first as a chalk and then as an exhibit, no. 18. This plan is referenced in 20 Bartlett’s subsequent deeds and the Master Deed for 19 Wiget. It is the touchstone for many of the Court’s findings in its Decision. The Defendants presented evidence of beautifully hand drawn assessor maps dating back to the early 1900s to try to suggest that over time Bartlett Place was only that segment of the way running from Salem Street until it ends at what is now 19 Wiget. (Ex. 14 & 15.) No evidence was offered as to the reliability and accuracy of these items, nor under what circumstances, other than property tax assessment, they are deemed reliable. The 1887 F.O. Whitney Plan was a recorded plan, referenced either expressly or implied in as the deeds since that time. The Court gives it much greater weight when determining the locus of Bartlett Place. Further, the Court also reads Ex. 14 & 15 as not being inconsistent with the Whitney Plan because it fails to label either the passageway to Cooper or the disputed segment of Bartlett Place ending at Wiget Street.
The current property description for 20 Bartlett had its origins in the 1887 Bartlett to Baker deed, (Ex. 1) when the properties known today as 20 Bartlett and 19 Wiget, respectively, were all under common ownership in John J. Bartlett, Eliza B. Seymour and Ada J. Seymour. The parcels remained in common ownership when they were deeded, along with other land, to Seth R. Baker by a deed dated May 10, 1887, which was recorded in the Registry at Book 1771, Page 137. (Ex. 1.) Baker then was the common owner of 20 Bartlett and 19 Wiget until he conveyed 20 Bartlett.
What is now 20 Bartlett was then known as 5 Bartlett. See Ex. 1 pg 138. And, what is now Wiget Street was then known, in that section, as North Margin Street. These changes over time are noteworthy but are not material to the decision in this case.
Later in 1887, Baker deeded 20 Bartlett Place, separate from the other parcels, to Domenico Leverone in a deed dated October 26, 1887, which was recorded in the Registry at Book 1795, Page 433. (Ex. 9.) In the deed to Leverone, the conveyed parcel was described, in relevant part, as "bounded north easterly on Bartlett Place fifty-seven and eighty hundredths (57.80) feet, northerly on said Bartlett Place twelve (12) feet together with a right of way through said Bartlett Place/and the passageway leading therefrom to Cooper Street all as shown on said [1887] plan." (Emphasis added.) The property description for 20 Bartlett Place has remained unchanged over the last hundred years and the contemporary deeds now contain the sentence: "together with a right of way through said Bartlett Place and the passageway leading therefrom to Cooper Street, all as shown on said [1887] plan." Only the back slash ("/") from the 1887 deed from Baker to Leverone conveying 20 Bartlett is missing in the post 1887 deeds introduced into evidence.
2. 19 Wiget Street
As noted, before the 1887 deed to Leverone, 20 Bartlett Place and 19 Wiget were in common ownership and the grantor, Baker, conveyed the right of way over Bartlett Place and the passageway leading therefrom to Cooper Street. After the 1887 conveyance of 20 Bartlett Place, the chains of title for these two properties diverged. At some unspecified time before 1928, based on the record before the Court, 13 Wiget and 19 Wiget were in common ownership. The deed dated October 25, 1928 (Ex. 4), reveals that 19 Wiget Street and 13 Wiget Street were held in common ownership by Barstow who conveyed these parcels, and others, to Andolino. (Ex. 4.) The deed refers to a "second parcel," comprised of "21, 19 and 17 (Wiget) and a stable lot in the rear all shown as a place by F.O. Whitney dated May 14, 1887." This parcel is described as being on the northeast corner of North Margin and Wiget Streets extending through said Bartlett Place." (Ex. 4.) The deed, dated October 25, 1928 (Ex. 4), references "Bartlett Place" as a boundary for both 19 Wiget Street and 13 Wiget Street and expressly references the "plan by F.O. Whitney dated May 14, 1887." (Ex. 4.)
See Ex. 18 for a perspective of what is referred to as the second parcel in Bartlett’s deed to Leverone. (Ex. 4.) This is an overlay over the F.O. Whitney Plan, also referenced in that deed. It shows the stable, 17 Wiget and 19 Wiget and 21 Wiget. At some point before the 19 Wiget Condominium Master Deed 17 Wiget must have become absorbed into either 21 Wiget or 19 Wiget because the Master Deed for 19 Wiget Condominiums (Ex. 7) describes the premises as the land numbered as 19-21 Wiget Street. In Ex. A to Ex. 7 the 19 Wiget Condominium is described as the parcels formerly No. 21, 19, 17 and stable lot "all shown on plan by F.O. Whitney dated May 14, 1887." Ex. 2 and Ex. 18 show Bartlett Place running the length of the side of 19 Wiget Condominium.
19 Wiget Street, now owned by the Condominium Trust, describe their property as bounded "Easterly by Bartlett Place." See Master Deed, dated January 9, 1989, and recorded in the Registry at Book 15298, Page 270. (Ex. 7 pg. 15298, 291.) The same Master Deed also states that the title to 19 Wiget Street is "subject to conditions, easements, restrictions or leases of record, insofar as the same are now in force and applicable."
3. 13 Wiget Street
Unlike, 20 Bartlett and 19 Wiget, there was no one period of time where 13 Wiget had common ownership with both 20 Bartlett Place and 19 Wiget Street. However, as referenced, there was a period of time, before 1928, where 13 Wiget and 19 Wiget had common ownership. (Ex. 4.) The 1928 deed described 13 Wiget Street as bounded by Bartlett Place and to North by land: "formerly of Bartlett, late of Domenico Leverone." That deed also states that the other parcels involved in the transaction, including 21, 19 and 17 Wiget Street extended through "said Bartlett Place" and specifically referenced the F.O. Whitney plan of 1887. (Ex. 2 and Ex. 18.)
All the deeds relating to 13 Wiget Street presented at trial, including the most recent deed for 13 Wiget, LLC, consistently refer to Bartlett Place as a boundary to 13 Wiget. The deeds state that 13 Wiget is "... situated on the northeasterly corner of Wiget Street and Bartlett Place and bounded westerly by Bartlett Place ..."
C. WHAT CONSTITUTES "BARTLETT PLACE AND THE PASSAGEWAY"
The deeds for these properties confirm that all three are bounded by "Bartlett Place." Walking the length of Bartlett Place, during the view, and also after examining the footprint and layout of Bartlett Place on the F.O. Whitney Plan, support the conclusion that Bartlett Place is an "L"-shaped private way running from Salem Street, past 8-10 Bartlett Place and 20 Bartlett Place to what is almost a dead end, just along an exterior wall and door for 19 Wiget Street (formerly labeled as "Stable" in Ex. 2), when it then makes a sharp, 90 degree, turn towards Wiget Street and ends at Wiget, bounded on either side by 13 Wiget and 19 Wiget. The 1887 Whitney Plan identifies Bartlett Place as an L-shaped way running from North Margin Street (which is now known as Wiget Street) to an unlabeled road that the parties agree is Salem Street. (Adddendum A.) As the Whitney plan reveals, and the descriptions in the deeds for each of these properties substantiate, Bartlett Place runs the length of the "L" from Salem Street till it ends at the intersection of Wiget Street. The Whitney Plan expressly labeled the section of the way from Salem Street running past 8-10 Bartlett and 20 Bartlett until it turns southerly as "Place" on the plan and then labeled the section after the way turns southerly heading towards Wiget Street as "Bartlett." When reading the plan, if you start at the bottom of the plan, you see the name "Bartlett" on the section adjacent to 19 Wiget and 13 Wiget. Then you must look over to the right of the plan, as the way bends towards the outlet street, Salem Street, to see it is labeled as "place." In other words the street outside 20 Bartlett’s front door is labeled as "place" on the Whitney Plan and the area to the left and behind 20 Bartlett Place is labeled as "Bartlett." The manner in which Whitney drew and labeled "Bartlett Place" on his recorded plan is support for the conclusion that the entire length of the 90° angled way is all properly deemed "Bartlett Place."
The deeds entered as exhibits in trial and which have previously been recorded in the Suffolk County Registry of Deeds (the "Registry") each demonstrate that all of the properties owned by the parties in this case abut Bartlett Place. Each deed either expressly or by implication incorporates the Whitney plan.
The 1887 Plan also shows a "Passageway" leading from the bend of Bartlett Place out to Cooper Street. The rights to and access over the Passageway leading to Cooper Street are not at issue in this case and this decision of the Court is not intended to, nor does it, address any of the rights or interests that any of the parties or others, not parties to this suit, may have over the area on the Whitney Plan labeled as the "passageway." The Court observed, based on the view, that the passageway is a narrow area, narrower than the disputed area, and it is blocked by rod iron fencing at both ends. Based on the furniture and the gas grill seen on the view it appears that the area within the gated passageway leading to Cooper Street is used for outdoor dining.
The parties do not dispute 20 Bartlett’s rights along what the Court will refer to as the "stem" of Bartlett Place, running from Salem Street to 19 Wiget just before it turns towards Wiget, or what is labeled on the Whitney plan as "place." The parties do, however, dispute 20 Bartlett’s right, as of this date, to access that section of Bartlett Place from where the stem makes the sharp 90° turn until it intersects at Wiget Street, between 13 Wiget and 19 Wiget. The area behind 20 Bartlett and 13 Wiget, bounded also by 19 Wiget, and enclosed by the Wiget Gate at one end and the Bartlett Fence that runs across the way and attaches at 20 Bartlett and 19 Wiget, this entire enclosed area is referred to throughout this decision as the "disputed area."
D. HISTORICAL FEATURES AND ACCESS ON THE DISPUTED AREA
There has historically been a locked gate across Bartlett Place where it intersects with Wiget Street ("Wiget Gate"), and there has also been fixed fence across Bartlett Place adjacent to 20 Bartlett Place and 19 Wiget. ("Bartlett Fence.") The Wiget Gate and the Bartlett Fence are of longstanding duration. Gates and fences have existed at these locations for as long as anyone can remember. They have been in place prior to any party’s interest in 20 Bartlett Place, 13 Wiget Street, or 19 Wiget Street. No one could say who originally installed them, or when they were first erected. Based the testimony from Mr. Monteforte and Mr. Sgarano, both of whom had knowledge of the use of the area from the late 1940s till today, there has always been a gate and a fence across Bartlett Place. (Wiget Gate and Bartlett Fence, respectively.) The fence and gate walled off and enclosed the disputed area. They have been replaced over the years, but the Wiget Gate and the Bartlett Fence have remained in the same location for as long as Mr. Sgarano can remember. They are in the same location today. The placement of the Wiget Gate and Bartlett Fence does not prevent the abutters from accessing the disputed area by foot from the back or side of their buildings.
The disputed area of Bartlett Place has always been blocked at both ends. A chain-link fence that swung open like a gate, which was secured by a padlock, was located at the far southerly end of Bartlett Place immediately adjacent to Wiget Street. And, at the other end there was a fixed fence located at the northerly edge of Bartlett Place. For much of the time since the late 1940s the Sgarano family has had access to the key to the Wiget Gate. However, as Mr. Sgarano testified, he has never denied any owner of 20 Bartlett access through the Wiget Gate. Nor has he ever denied 19 Wiget access to the key to the gate when they asked for it.
We will address fence and gate each in turn.
Mr. Sgarano testified that he recalls the Wiget Gate and the Bartlett Fence as early as the 1940s when he was 7-8 years old. At that time, horses still occupied the then-horse stable at the location of 19 Wiget Street. There was a large archway in the side of 19 Wiget Street that opened up onto Bartlett Place. The fence and gate created an enclosure to protect the horses. Horses would enter the barn, from Wiget Street and be able to walk out onto Bartlett Place through the archway to rummage around, where they would be corralled by the gates at either end of the now disputed area-the area between the Wiget Gate and the Bartlett fence.
In later years, after 19 Wiget was no longer used as a stable, and after the horses were gone, the abutters along Bartlett Place in the disputed area, had new reasons to seek to have that area fenced off. The witnesses testified consistently on this point. They said that since at least the 1960s the purpose of these gates, enclosing the disputed area was to keep the public from driving, parking, walking, or generally traversing from Wiget Street onto Bartlett Place and out to Salem Street or across the passageway to Cooper Street. In other words the enclosure of the disputed area was to prevent the public accessing it. Mr. Sgarano, the 19 Wiget Trustees and Mr. Monteforte all explained in their own words that by fencing the public out of this area it helped to maintain reasonable levels of noise and perhaps more importantly, offered more security for the residents in the abutting buildings.
1. The Wiget Gate
The earliest memories of the Wiget Gate was a chain-link fence that swung open like a gate across Bartlett Place just where it intersected with Wiget Street. It has been there even before 1946 when the Sgaranos first occupied the property at 13 Wiget. The Sgarano family did not install or erect this chain-link fence across Bartlett Place at Wiget Street The fence was locked with a padlock and that denied access from Wiget Street onto Bartlett Place except for those with access to the key.
At some point the original chain-link gate at Wiget Street was replaced by the Sgaranos with another chain-link fence and gate in the same location as the prior gate. Subsequently, in the 1980s that fence and gate was replaced by Eurovest, a developer, who was the then owner of 19 Wiget Street. Eurovest created the condominium development at 19 Wiget. Mr. Sgarano testified that Eurovest told him they wanted to replace the fencing and gate with a rod iron fence and gate. Eurovest did so at their expense and provided Mr. Sgarano with a key to the gate. Based on the evidence presented, for a period of time after Eurovest replaced the gate, Sgarano held the only key to that gate.
Curiously, Eurovest did not provide a key to the Wiget Gate lock to the Condominium Trust Association or to any of the purchasers of the units at 19 Wiget. This conclusion is based on the testimony from the 19 Wiget trustee, Ms. Pasqua Scibelli. She testified that she spoke to Mr. Sgarano in the 1990s and told him that 19 Wiget, as an abutter on Bartlett Place, owned to the middle of the way and so they too had a right to the key to the gate. Without any hesitation, Joseph Sgarano provided her with the key for the Condominium Trust. The Trustees for 19 Wiget jealously guarded the use of the key. They limited the use of the disputed area through the Wiget gate only to vehicles needing access to the building maintenance and related purposes.
Sometime recently the Boston Fire Department asked that a fire department box be installed above the Wiget Gate and that a key to the gate be placed in the locked box. This is to ensure that the Boston Fire Department can access through the Wiget Gate onto Bartlett Place in case of an emergency. During the view, the Court observed a red box, located approximately eight feet from the sidewalk on the 13 Wiget wall adjacent to the rod iron Wiget gate. Mr. Sgarano testified he put his only key into the firebox, suggesting that the firebox was installed after 2012 and before February of 2018 when he sold 13 Wiget.
2. The Bartlett Fence
At the other end of the disputed area of Bartlett Place there was a chain-link fence that existed since before 1946 when the Sgaranos moved to 13 Wiget Street. The Sgarano family did not install or erect that chain-link fence across Bartlett Place. It was a straight solid fence attached at one end at 20 Bartlett Place and at the other end it attached to the side of the building at 19 Wiget. This fence enclosed the back of 20 Bartlett Place (and 13 Wiget) and prevented travel from Wiget Street onto the "stem" of Bartlett Place or to cut across and through the "passageway" to Cooper Street. This fence was configured differently over the years but has remained in the same location, just at the point of the 90° turn in the way. It has been a fixed fence, and at times it did not have a gate.
Though this fence never abutted the Sgarano’s building, approximately 25 years ago the Sgaranos replaced the chain-link fence with a fixed wooden stockade fence across that portion of Bartlett Place. It had a removable panel to permit access from or to the disputed area from the stem of Bartlett Place. That fence, like the present one observed during the view, is attached on one end to 20 Bartlett Street and on the side it attached to 19 Wiget Street. There was no evidence offered whether 19 Wiget and 20 Bartlett were consulted or agreed to the Sgaranos replacing that chain-link fence especially since it did not attach to his property at 13 Wiget. Neither Mr. Sgarano nor any of the Defendants’ witnesses testified that they ever used or entered through the Bartlett Fence. Mr. Monteforte and more recent years Mr. Ianuzzi, both of 20 Bartlett Place testified about their access through the Bartlett Fence to get from the front to the back of 20 Bartlett Place. Mr. Ianuzzi testified for example that there was a removable section of the fence which had to be lifted out to permit access behind 20 Bartlett Street and onto the disputed area of Bartlett Place.
In 2013 when the fence was in disrepair-Ralph lanuzzi testified he consulted with both 13 Wiget and 19 Wiget to replace the current fence. He showed them a sample of what he intended to install. They agreed. The current wooden fence has a gate unlike the fence installed by the Sgaranos that had no gate.
lannuzi replaced that fence with a similar, white cedar wooden stockade fence, at his expense. The replacement fence he installed had a gate, but it did not have a lock. The current fence has a one-way gate. That gate only opens from the back, from the disputed area side of the fence. There is no means of opening the fence from the "stem" of Bartlett Place to access behind 20 Bartlett Place.
To open the gate in the Bartlett Fence you would have to exit 20 Bartlett Place from the back of building to unlatch the gate or would have to otherwise be on the Wiget Gate side of the Bartlett fence.
The current Bartlett fence, did as its predecessors had done, served to keep people or cars out of the areas behind 20 Bartlett and 13 Wiget or along the side of 19 Wiget Street. The Bartlett Fence enclosed the disputed area and prevented the area from being used as a cut through to Cooper Street or Salem Street. The Bartlett fence, along with the Wiget Gate, enclosed the disputed area and kept out would be trespassers.
The disputed area within the space between the Wiget Gate and the Bartlett Fence was available to these parties but they have, historically made little use of the area since at least the 1960s. The Wiget Gate and Bartlett Fence bound the disputed area but they do not impede the ability to walk on the disputed area. All parties can access the disputed area from the rear or side of their buildings. Based on the view and the testimony the Court concluded that the Bartlett Fence is not inconsistent with 20 Bartlett’s rights to access the disputed portion of Bartlett Place. This Court finds the Bartlett Fence is entirely consistent with the historic fencing that has historically been in place. 20 Bartlett has continuously been able to access through that fence when needed. The gate and fence were to wall off the general public and yet maintain access, on an as need basis, for the abutters on Bartlett Place.
3. 13 Wiget’s Use Over the Disputed Section of Bartlett Place Between the Bartlett Fence and the Wiget Gate
Mr. Joseph Sgarano testified that his family assumed responsibility over both the Bartlett Fence and the Wiget Gate at least as of December 1946 when his family purchased 13 Wiget Street. Mr. Sgarano testified in his family maintained the fencing, kept the key for the padlock securing the Wiget Gate and at one point he even paid to replace the Bartlett Place fence, even though it was not attached to his building and he never testified that he used it. He said was concerned and wanted to block off the public access behind his building for safety sake. The enclosures cut down on loitering and litter being strewn in back of his building. He testified that he shoveled the disputed area, and approximately once a year picked up litter and trash and tried to keep it maintained. He did not testify that he took any action throughout his long occupancy and ownership of 13 Wiget to prevent or impede 20 Bartlett or 19 Wiget from using or walking on the disputed area between the gate and the fence. Mr. Joseph Sgarario explained he, at some undefined time, affixed a "no parking" sign on the Wiget Street (public street) side of the Wiget Gate to keep the public from parking and therefore blocking the Wiget Gate from the Wiget Street entry.
No evidence was offered to prove that the Sgarano’s maintenance of this area was hostile or adverse to the rights of 20 Bartlett or 19 Wiget who also have deed rights over this section of the right of way. For example, there was no evidence offered by 19 Wiget (or 13 Wiget) as to 19 Wiget’s use of the disputed area on Bartlett Place except, at one time, in the 1940s, horses were kept in stable there and the fences kept the horses from getting loose on the streets. 19 Wiget relied upon the enclosure at either end of the disputed area to keep the horses safe and penned in. After the 1940s the next time any mention was made of 19 Wiget’s use of the disputed area was approximately fifty years later when Mr. Sgarano was confronted by the 19 Wiget Condominium Trustee asserting that 19 Wiget had rights over the way. In response to their request he gave them a key to the Wiget Gate. 13 Wiget’s conduct acknowledged 19 Wiget’s right to access the disputed area from the Wiget Gate. That was the extent of 19 Wiget’s evidence as to their usp of the disputed area.
The evidence offered at trial from Mr. Monteforte, and Mr. Ianuzzi, was that when 20 Bartlett wanted access through the Wiget Gate, the Sgaranos would open the gate or provide them with a key. Joseph Sgarano testified that he never denied 20 Bartlett or 19 Wiget access through the Wiget Gate. Joseph Sgarano’s conduct is further evidence that the Sgarano’s use of the disputed area was consistent with their intent to exclude the public, not their neighbors, 20 Bartlett or 19 Wiget. In 2012, Mr. Sgarano spoke with Mr. Ralph Ianuzzi, 20 Bartlett’s property manager. Mr. Sgarano welcomed him to the neighborhood. Mr. Sgarano understood that Mr. Ianuzzi was undertaldng brick renovation work to 20 Bartlett. Mr. Sgarano had a key to the Wiget Gate made and gave Mr. Ianuzzi a key to the Wiget Gate. The Court finds that Mr. Sgarano did not ask the Plaintiff to return that key. Then in March of 2015, 19 Wiget, not 13 Wiget, changed the lock to the Wiget Gate.
Mr. Sgaranao and 13 Wiget never contested 19 Wiget’s rights to the disputed area, even though apparently 19 Wiget’s activities were dormant for decades whereas the record has demonstrated 20 Bartlett’s ability, up until 2015, to have access through the Wiget Gate. Neither Defendant offered any evidence that they blocked 20 Bartlett from using or accessing the disputed area between the Wiget Gate and Bartlett Fence.
Access over the disputed area is more than just access through the Wiget Gate. The rights at issue go to Plaintiff’s right to access the entirety of Bartlett Place, including the right to traverse over the disputed area. The Wiget Gate is one piece of the picture, which both parties suggest, support their contentions in this case. The Court finds that the Wiget Gate and Bartlett Fence do not prove 13 Wiget’s exclusive control over the disputed area along Bartlett Place. The fair preponderance of the evidence reveals that 20 Bartlett Place made continuous use of the disputed area: from the 1940s when pushcarts rolled over the disputed area or were stored behind 20 Bartlett requiring access behind the building and access along the disputed area to the 1960s and 1970s when the Monteforte family performed maintenance work to the building and brought a truck through the Wiget Gate, with Sgarano giving them access to the gate, and later in the 1970s when they ran a restaurant on Bartlett Place and Mr. Monteforte made frequent trips from the front and back of 20 Bartlett causing necessary foot traffic over the disputed way and then in 2012 Mr. Sgarano welcomed Mr. lanuzzi to the neighborhood and gave him his own key to the Wiget Gate. He did not ask for the return of that key. Every time 20 Bartlett accessed through the Bartlett Fence, to the back of 20 Bartlett they were walking on the disputed area of Bartlett Place. The Court finds therefore, on this record, 20 Bartlett’s use over the disputed area was continuous.
For example the Court heard testimony from Mr. Monteforte and Mr. Ianuzzi that they had frequent access behind the Bartlett Fence and behind 20 Bartlett Place and each time they accessed through the fence they would have necessarily accessed some portion of the disputed area. They walked on the way, and at times stored materials, and in the 1940s-1950s stored pushcarts.
The Court finds that the Sgaranos’s actions were consistent with serving as a custodian, of sort, over the private way that is Bartlett Place. All three properties were content to block off the disputed area, to exclude the general public and minimize its use. The Sgaranos’ actions were all actions that this Court finds are consistent with the continuing rights of the 19 Wiget and 20 Bartlett over the disputed portion of Bartlett Place. There was no action, not until March of 2015, when Plaintiff was denied access across the Wiget Gate, that 13 Wiget or 19 Wiget took any actions that were open, hostile, notorious or inconsistent to 20 Bartlett’s rights over the disputed area on Bartlett Place. Even then, when the Wiget Gate was not open to 20 Bartlett in 2015, the Plaintiff still had access over the disputed area on foot, even if motor vehicle traffic was excluded. During our view of the disputed area, the Bartlett Fence was opened, and as we each walked through the gate, we each stepped onto the disputed area. The area was open until it reached the Wiget Gate blocking Bartlett Place’s intersection with Wiget Street. The disputed area had some cobblestone areas and some paved areas but was open within those enclosures of the Wiget Gate and Bartlett Fence.
Further, as will be addressed below, to the extent that 13 Wiget’s actions were not hostile or adverse to 19 Wiget’s rights over the disputed area then neither can 13 Wiget deny 20 Bartlett’s rights of access because 20 Bartlett’s rights were created in the 1887 deed; the same deed that conferred the right of way over Bartlett Place to 19 Wiget. 20 Bartlett’s rights to access the disputed area on Bartlett Place are on the same footing as 19 Wiget’s rights.
Previously, in the 1990s the Sgaranos permitted Eurovest, the owner of 19 Wiget to install, at their expense and new gate and lock as referenced above. So, from at least the 1990s 13 Wiget did not bear the cost of maintain the Wiget fence, gate and lock.
4. 19 Wiget’s Use Over the Disputed Section of Bartlett Place
Critical to the rights of both 19 Wiget and 20 Bartlett over the disputed area is the 1887 deed from Bartlett to Baker. That deed evidences the common ownership of 19 Wiget and 20 Bartlett, and described the properties as bounded by Bartlett Place. (Ex. 1.) The 1887 Whitney Plan was recorded subsequent to this deed (by four days) though the land measurements from that deed match those on the plan. In the conveyance from Baker to Leverone (Ex. 9) dated October 25, 1887, that deed has the first reference to the F.O. Whitney plan of 1887 and describes the right of way over all of Bartlett Place, and the passageway to Cooper. In Ex. 4, the 1928 conveyance from Bastow to Angelino, it references the Whitney Plan and it includes the conveyance for the properties at 21, 19, 17 and 13 Wiget. For some time prior to 1928, then, 13 Wiget and 19 Wiget were in common ownership.
As referenced above, the historic evidence offered about 19 Wiget’s use of the disputed portion of Bartlett Place was limited to the 1940s with the horse stable and then again in the 1990s when the 19 Wiget Condominium Trustees sought access to the Wiget Gate key. There was no evidence of any use, whether on foot or motor vehicle by 19 Wiget from 1940s until the 1990s. In March of 2015 19 Wiget changed the lock to the gate to prevent 20 Bartlett from using the Wiget Gate.
19 Wiget, as does 13 Wiget and 20 Bartlett, concede that the fences and gate across Bartlett Place have been in place since prior to 1946. The Court finds these gates and fences are not incompatible with the existence of the easement to permit all the three properties to access the disputed area. Though the Defendants have argued that the gate and fences are incompatible with a right or way, the testimony revealed the right to access the Wiget Gate was available when 20 Bartlett needed it. The Bartlett Fence did not preclude 20 Bartlett’s ability to access the disputed area, though admittedly that fence would not permit motor vehicle traffic to enter onto the disputed area. But it did afford 20 Bartlett access by foot when it wanted it. The gate and fences continued to serve 20 Bartlett’s purpose of keeping trespassers from accessing the back of their building or using it as a cut through to Salem Street or Cooper Street.
The Court’s conclusion is further supported by the testimony of the Trustees of 19 Wiget. The trustees testified that they also wanted the Wiget gate to remain locked limiting outside access. They made limited use of the disputed area through the Wiget Gate. It was exclusively used by 19 Wiget to allow trucks onto the disputed area in connection with maintenance and cleaning work on the building. Their stated reason for maintaining the gate and enclosing the area, was primarily for safety. They wanted the gate and fence to continue to enclose the disputed area along Bartlett Place, as it has been since before World War II.
19 Wiget has denied access to their own condominium unit owners who wished to make use of the disputed area. Instead they keep the gate locked and deny access except for repair vehicles or cleaning service vehicles needing access to 19 Wiget Street. Importantly, their use is of a similar sort as the uses to which 20 Bartlett had used the disputed portion of Bartlett Place according to the testimony of Mr. Monteforte and Mr. Iannuzzi. Moreover, the disputed portion of Bartlett Place was never regularly used by anybody. For example, no one regularly parked a car, or maintained outdoor seating or placed anything over the right of way in the disputed area. No one used the disputed area to travel through or across to Salem Street or Cooper Street. It was never used as a cut through. Rather, the testimony all support the conclusion that the disputed portion of Bartlett Place has always been an enclosed area and has only used on an as-needed, occasional, basis by all three parties. This occasional, "as needed use" was available over the right of way at all times, even for the Plaintiff.
5. 20 Bartlett’s Use over the Disputed Section of Bartlett Place
(a) The Wiget Gate
Various owners maintained control of the key to the Wiget Gate for the benefit of owners of property adjacent to Bartlett Place, who historically used and enjoyed the right to access and use Bartlett Place. The Sgaranos, and 19 Wiget presented evidence that they had access to the key. Louis Monteforte and his father used the Wiget Gate in the late 1960s to facilitate plumbing renovations on 20 Bartlett Place. Mr. Monteforte testified that he obtained a key to the Wiget gate from "the old man that lived at 13 or 19 Wiget Street." Their use of the gate was for as long as it took to complete the repair work at 20 Bartlett. There was no testimony as to whether the key to the gate was returned or whether 20 Bartlett kept the key. In 2012 Joseph Sgarano had a separate key made for 20 Bartlett Place. They had access when they needed it which is consistent with the historical use 20 Bartlett had made of the right of way in the disputed area. The testimony does support a finding that the owners of 20 Bartlett Place had a key to the gate from the 2012-March 2015 time period, until the lock was changed by the Condominium Trustees.
(b) Foot Traffic Over the Disputed Right of Way
One of Plaintiff’s predecessors in title, Louis Monteforte, testified that his parents owned 20 Bartlett Place, which they acquired from his grandfather, Charles Balliro, in the 1970s. Charles Balliro lived at 20 Bartlett Place and operated a pushcart business selling fruit and produce from six pushcarts in the North End of Boston. Louis Monteforte lived at 20 Bartlett Place from the age of five years old to when he was seven years old. Louis Monteforte used to ride on the pushcarts as a small child and recalled that his grandfather stored the pushcarts behind 20 Bartlett Place, and would take the pushcarts around the back of 20 Bartlett Place and each day push them out, taking a right Bartlett Place onto Salem Street. Louis Monteforte testified that after his uncles had left the house his grandfather still ran two pushcarts and those pushcarts would be stored out behind 20 Bartlett Place. He would access the carts and take them through the Bartlett fence on Bartlett Place onto Salem Street. Later Mr. Monteforte worked at his father’s restaurant. He testified he often walked around to the back of 20 Bartlett Place. While he did not map out his footsteps, having looked at the plan, and walked the area on the view, it would be difficult if not impossible to avoid walking over some portion of the disputed area if he was walking outside from the back of 20 Bartlett to the front of 20 Bartlett through the Bartlett Fence.
As previously mentioned neither Defendant testified that they ever used the Bartlett Fence. Only the Plaintiff and Mr. Monteforte offered testimony about accessing through the Bartlett Fence.
Later, when Plaintiff acquired the property in 2012 Mr. Ianuzzi testified that he removed a portion of the Bartlett Fence that Mr. Sgarano installed and frequently walked from the front to the back of 20 Bartlett Place throughout the time the renovation work was being done into 2014. Then Plaintiff replaced the fence and the new fence has a gate that only opens only from the back of 20 Bartlett Place. In accessing the gate as the new Bartlett Fence Mr. Ianuzzi and his workers necessarily accessed a portion of the disputed area, as we did on the day of the view, when we entered through that gate. Based on this record the Court finds continuous, uninterrupted, foot traffic over the disputed area by the Plaintiff and its predecessors.
RULINGS OF LAW
I. Burden of Proof
In this civil case the party with the burden of proof must prove their claim by a preponderance of the evidence. The Plaintiff has the initial burden of proving the easement over all of Bartlett Place, including the disputed area, and then if successful, then the burden shifts to the Defendants to prove abandonment, or easement by prescription, to extinguish Plaintiff’s rights, if any, in the disputed area of Bartlett Place. The party claiming a right to an easement has the burden of proving the nature and extent of any easement. See Foley v. McGonigle, 3 Mass.App.Ct. 746, 746 (1975).
Next, the Defendants, who claim that even if there had, at one time, been an easement, any easement has been extinguished, would then have the burden of proving extinguishment by prescription or abandonment. See Lemieux v. Rex Leather Finishing Corp., 7 Mass.App.Ct. 417, 422 (1979). While the Defendants here have pursued their defenses collectively, they will need to be examined separately to see if each met their burden on these affirmative defenses. Turning first, to Plaintiff’s claim of an express grant of an easement.
II. Easement by Express Grant in 1887 Deed
In the May 10, 1887 deed from Bartlett to Baker the properties now known as 20 Bartlett and 19 Wiget are described as bounded by "Bartlett Place." The F.O. Whitney plan, though not expressly referenced, in that deed Bartlett Place is consistent with those description and specifically references Bartlett Place. The F.O. Whitney plan is dated May 14, 1887, only four days after the Bartlett to Baker conveyance. That plan identifies Bartlett Place and puts it on the map. Later in 1887, on October 26, 1887 Baker conveyed what was 5 Bartlett, now known as 20 Bartlett described as bounded by Bartlett Place and the deed expressly references the Whitney Plan. Baker further conveyed: "together with a right of way through said Bartlett Place and the passage way leading therefrom to Cooper Street all as shown on the said plan." (Ex. 9 pg. 434.) The quoted language, absent the backslash has continued in all subsequent deeds for 20 Bartlett according to the evidence presented to the Court.
An easement by express grant is created by a writing signed by the party to be charged, or in a recorded conveyance. See McKenney v. McKenney, 216 Mass. 248, 251 (1913). "The general principle governing the interpretation of deeds is that the intent of the parties is ‘ascertained from the words used in the written instrument interpreted in the light of all the attendant facts.’" Perry v. Nemira, 91 Mass.App.Ct. 12, 17 (2017), quoting Hickey v. Pathways Ass’n, Inc., 472 Mass. 735, 744 (2015). See also Shelia v. Lebel, 44 Mass.App.Ct. 175, 179 (1998). Where land is described as abutting a way, and that way is a boundary by the property, and the deed references a plan which shows the way, at common law, it is presumed the grantor intended to convey an easement over the way, and also conveys to the center of the way. See e.g., Hickey v. Pathways Assoc., Inc., 472 Mass. 735, 744 (2015), Crocker v. Cotting, 166 Mass. 183 (1896) (it is a rule of construction, which can be overcome with evidence of manifest contrary intent, that presumes that the conveyance of land, where a way is mentioned as a boundary, is to the middle of the way).
This principle was also codified in the derelict fee statute. G.L.c. 183, § 58.
All parties admit that their deeds identify Bartlett Place as a boundary. The 1887 conveyance from Baker to Leverone grants 20 Bartlett an express easement over all of Bartlett Place. Because Bartlett Place runs the entire length of the 90° angle from Salem Street until it bends and ends at Wiget Street, each of the parties owns to the midline and has an express easement over the entirety of the way. See McGovern v. McGovern, 77 Mass.App.Ct. 688, 694 (2010); See Lane v. Zoning Bd. Of Appeals of Falmouth, 65 Mass.App.Ct. 434-37 (2006) citing Murphy v. Mart Realty, 348 Mass. 675, 677-78 (1965).
Moreover, to the extent that a deed refers to a plan, here, the Whitney Plan, that plan becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. Perry, 91 Mass.App.Ct. at 17. See also, Labounty v. Vickem, 352 Mass. 337, 334 (1967) ("[a] plan referred to in a deed becomes part of the contract ... and to determine the rights intended to be conveyed") (citations omitted). Further, by statute, in a conveyance of real estate, all right easements, privileges, and appurtenances belonging to the granted estate shall be included in the conveyance unless the contrary is stated in the deed." G.L.c. 153, § 15 (emphasis added).
The F.O. Whitney Plan is integral to locating the way and establishing the respective rights of these parties. Here, the Plaintiff’s deed expressly grants it: "a right of way through said Bartlett Place/and the passageway leading therefrom to Cooper Street all as shown on said plan." This has been so since the 1887 Deed and there is no contrary language in the subsequent deeds for 20 Bartlett Place. And the 1887 plan identifies Bartlett Place as an L-shape way running from Salem Street to Wiget Street (formerly known as North Margin Street). The 1887 plan refers to the "Passageway leading to Cooper Street" as just that: the passageway. It is so labeled on the Plan. The 19 Wiget Master Deed references the F.O. Whitney Plan. The predecessor to 13 Wiget’s current owners referenced the F.O. Whitney Plan in the earlier deeds conveying 13 Wiget.
Addendum A.*
Returning to the plain language in the 1887 deed from Baker to Leverone (Ex. 9) it grants the Plaintiff a right of way "through said Bartlett Place ..." According to the Merriam-Webster Dictionary, the word "through" is used "to indicate passage from one end or boundary to another ..." This definition comports with the common usage and understanding of the word "through." The plain language of the 1887 Deed and subsequent Deeds grant Plaintiff an easement along the entire length of Bartlett Place including the disputed parcel, and in addition thereto an easement also over the passageway leading therefrom to Cooper Street.
The Court finds that the Plaintiff met its burden, as an initial matter, to prove an express easement over all of Bartlett Place, including the disputed portion of the way.
Because the Court finds that Plaintiff, 20 Bartlett, has an express grant of an easement along all of Bartlett Place, including the area in dispute, the Court will turn next to the Defendants’ affirmative defenses, but will first, briefly, address the Plaintiff’s alternative theory to establish their rights to access the disputed area: easement by estoppel.
III. Easement by Estoppel
If, alternatively, there had been no express easement, can plaintiff establish an easement by estoppel? This theory provides an independent and sufficient basis to hold that the Plaintiff has an easement over the entirety of Bartlett Place. An easement may be created by estoppel in two circumstances:
In the first category, when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed. This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated.
In the second category, where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.Patel v. Planning Bd. of North Andover, 27 Mass.App.Ct. 477, 481-82 (1989) (internal citations omitted). Either theory could support Plaintiff’s claim here. In the 1887 Deed from Bartlett to Baker (Ex. 1) the grantors deeded 20 Bartlett Place a right of way over Bartlett Place. Bartlett owned both 20 Bartlett (then called 5 Bartlett Place) and 19 Wiget (formerly North Margin Street). These two properties are bounded by Bartlett Place and to a right of an easement over the way (as it was then laid out) runs the length of the way. Subsequent owners, within the Bartlett chain of title, cannot deny the existence of the easement along the way. See Patel at 82. 20 Bartlett Place and 19 Wiget Condominiums are in the Bartlett chain, and their properties are bounded Bartlett Place and their right of easement derive from the common owner Bartlett. 19 Wiget cannot, therefore, deny 20 Bartlett’s rights over the entirety of the way.
While 19 Wiget Street is estopped from denying the Plaintiff’s purported easement under this doctrine, 13 Wiget Street argues that because it did not have a common owner with 20 Bartlett Place it cannot be subject to an easement by estoppel. However, 13 Wiget’s argument is undercut because 19 Wiget and 20 Bartlett stand in the same shoes. Their rights over Bartlett Place originated in the same deed, from the same common owner. (Ex. 1.) If 19 Wiget cannot deny 20 Bartlett rights over the way, and if, because 13 Wiget has implicitly recognized 19 Wiget’s rights to the disputed area and right to access Bartlett Place and control the Wiget Gate, then 13 Wiget has acted inconsistently with its current argument. 13 Wiget has respected and acceded to 19 Wiget’s rights and claim of ownership to the center of Bartlett Place.
Prior to 1928, 13 Wiget and 19 Wiget, for an unspecified period had a common owner, which deeded the parcels, with rights over Bartlett Place. As to the second category of creating an easement by estoppel, that is not as compelling an argument. It is two degrees of separation. If 19 Wiget cannot deny 20 Bartlett’s rights and if 13 Wiget and 19 Wiget had common ownership, (Ex. 9) pre 1928 then is 13 Wiget likewise estopped from denying 20 Bartlett’s easement over Bartlett Place? No cases directly on this point were cited to the Court, nor was the Court able to find one. It is an interesting, though moot question, given the Court’s holding of the express easement by Deed. However, since the recording of the 1887 Plan, 20 Bartlett Place’s conveyances all reference the right of way along Bartlett Place.
IV. Plaintiff’s Nuisance Claim
In addition to a request for declaratory relief, Plaintiff has also claimed that the Defendants’ conduct in denying them access through the Wiget Gate constitutes a nuisance.
"A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another." Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994) (emphasis in original omitted) (citations omitted). A claim for nuisance requires proof that the Defendant’s conduct was (1) intentional and unreasonable, or (2) negligent, reckless, or abnormally hazardous. Ted’s Master Serv., Inc. v. Farina Bros. Co., 343 Mass. 307, 312 (1961). A claim for nuisance may seek injunctive relief without any claim for money damages. See Malm v. Dubrey, 325 Mass. 63, 66-67 (1949).
Taking each Defendant in turn. The Plaintiff’s claim for nuisance against 19 Wiget prevails because Plaintiff has an easement over the disputed area, but starting in March of 2015, 19 Wiget changed the Wiget Gate lock and denied Plaintiff access. That action by 19 Wiget constitutes a nuisance. The nuisance began and continues up to the present date because it interferes with the Plaintiff’s rights to enjoy access along the entirety of Bartlett Place. The Court therefore finds for the Plaintiff in its claim for nuisance against 19 Wiget.
However, the Court must find in favor of 13 Wiget on 20 Bartlett’s claim of nuisance because no evidence was produced by Plaintiff to show that 13 Wiget or its predecessors in title ever denied 20 Bartlett access or interfered with its rights along the way. Rather the evidence all supports a contrary conclusion, that 13 Wiget always acceded to 20 Bartlett’s access, or alternatively, did not interfere with 20 Bartlett’s use of the easement. There was testimony on at least two occasions, once in the 1960s and again in 2012, 93 Wiget gave 20 Bartlett a key or access to the gate and did not insist on a return of the key. This claim is largely duplicative of Count I (declaratory judgment) because Plaintiff seeks equitable relief.
V. Affirmative Defenses-Was the Easement Extinguished by Prescription or Abandonment?
For 13 Wiget or 19 Wiget to defeat the Plaintiff’s easement rights they must each prove at least one of their two affirmative defenses: either easement by prescription or an abandonment of the easement by Plaintiff. An easement by prescription, much like adverse possession, must be continuous for twenty years. G.L.c. 187, § 2. 13 Wiget and 19 Wiget must each establish, by a preponderance of the evidence, that their use of the disputed area was "open, notorious and adverse to the owner, and continuous for twenty years." Tucker v. Poch, 321 Mass. 321, 323 (1947); Boothroyd v. Bogartz, 68 Mass.App.Ct. 40, 44 (2007).
It is a fact specific inquiry.
As a starting point, recall that the disputed area of Bartlett Place is a way which all three parties abut. 19 Wiget and 13 Wiget accept they each "own" to the middle of the disputed area with an easement over the other half of the way. Here, the Defendants would deny that same right over the way to another abutter, 20 Bartlett. Instead 13 Wiget claims if 20 Bartlett did at one time have an express easement over this section of Bartlett Place it has been extinguished by 13 Wiget’s twenty plus continuous years of open, notorious and adverse use. As demonstrated above, 20 Bartlett also has rights, as an abutter to own to the middle of the way. On this record, the Court finds that neither Defendant proved it had acquired an easement by prescription.
See Brennan v. DeCosta, 24 Mass.App.Ct. 968 (1987) (the title of land bounded by a "street or way" runs to the center line of the way and has the right to use the entire length of the way).
A. Prescription
"To extinguish an easement, the servient estate must take acts, which in substance and effect, have rendered the use of the easement practically impossible." Siebecker v. Orefice, 2014 WL 1896414, at *7 (Mass. Land Ct. Apr. 29, 2014), aff’d, 87 Mass.App.Ct. 1126, 2015 WL 3477162 at *1 (2015), citing New Eng. Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1930). The party asserting extinguishment by prescription must show that "its use is irreconcilable with the use as a way," and such use has been "open[ ], notorious[ ], adverse[ ], and without interruption for more than twenty years." Siebecker, 2014 WL 1896414; At *7, quoting Brennan v. DeCosta, 24 Mass.App.Ct. 968, 968 (1987).
Here the Defendants already had by Deed as an abutter along Bartlett Way, the right to own to the center line. So, did they subsequently extinguish 20 Bartlett’s rights in its easement in the way by establishing an easement by prescription over the other half of the way? The simple answer is no. 13 Wiget contends that the Wiget Gate and the Bartlett fence effectively blocked access to the disputed area for a continuous period for more than sixty years. However, the existence of the gate and fence alone do not meet the Defendants’ burden on this record. By way of example, neither 13 Wiget nor 19 Wiget could say who bad placed the initial fencing across Wiget and Bartlett Place. There was evidence that in the 1990s the Sgaranos replaced the Bartlett Fence with a wooden stockade fence. But in 2013 20 Bartlett replaced that fence. And, neither Defendant accessed through the Bartlett Fence. Similarly, while Sgarano testified that his family replaced the Wiget Gate, he also acknowledged that in the 1980s-1990s Eurovest replaced the fencing and gate at Wiget Street, not 13 Wiget. So 13 Wiget did not prove that it exclusively and adversely controlled the gate and fence. Moreover, as discussed supra the fence and gate did not prevent 20 Bartlett from having continuous access either from the rear of 20 Bartlett or through the Bartlett Fence thereby accessing the disputed portion of the way. Mr. Monteforte had unfettered access by foot or, when he needed motor vehicle access, through the Wiget Gate. Mr. Sgarano, while maintaining the upkeep of the easement, though necessary for the enjoyment of the easement, that conduct alone is not the basis under these facts for establishing easement by prescription.
19 Wiget offered no evidence, prior to 2015, that they, or their predecessors in title did anything to exert exclusive control over the gate, fence or the disputed portion of the way. They offered no evidence that they took steps that were irreconcilable with the use of the way. In 2015, 19 Wiget changed the lock on the gate. That is their sole, and insufficient, action to support their claim.
13 Wiget’s affirmative claims rest almost exclusively on their management of the Wiget Gate, from 1946 until Eurovest replaced it in the late 1980s, and the replacement of the previous Bartlett Fence with a stockade fence approximately 25 years ago. However, the installation of fences, standing alone, does not establish that an easement was extinguished by prescription. See Lemieux, 7 Mass.App.Ct. at 423 (finding gates at both ends of the way were insufficient to prove extinguishment where dominant estate had access through the gates). The fencing and gates were not "irreconcilable with the [disputed parcel’s] use as a way" based upon the historical use of the disputed area. The Wiget gate and the Bartlett Place fence have served the needs of 13 Wiget, 19 Wiget and 20 Bartlett over time. In the 1940s-1950s it kept the horses stabled at 19 Wiget from turning loose onto one of the streets-Salem, Wiget or onto Cooper. Starting in the 1960s fencing off the disputed area kept the public from cutting through the back of their property, or loitering in the back and so enhanced the residents’ sense of security. The testimony was that all these parties wanted to keep the public out of the disputed area and on limited occasions, they wanted to have access through the Wiget Gate to allow maintenance and service vehicles to enter. Only 20 Bartlett used the Bartlett fence. And, in 2013, 20 Bartlett installed a new fence with a gate to facilitate their access.
13 Wiget and 19 Wiget each independently have to meet their burden of proof to establish that their use over the disputed area was open, hostile and notorious for twenty continuous years. As previously noted 19 Wiget cannot extinguish 20 Bartlett’s rights because they had a common grantor and the rights on the way came from a common deed. Alternatively, even if that was not so, 19 Wiget offered insufficient evidence to prove easement by prescription. 13 Wiget offered evidence of its use and maintenance of the gate and fence. But 13 Wiget’s use was not exclusive or adverse to 20 Bartlett’s use over the disputed area for a continuous twenty-year period. Therefore, 13 Wiget’s Affirmative Defense of easement by prescription fails.
B. Abandonment
Turning lastly to the Defendants’ affirmative defense of abandonment.
"Mere nonuse[ ] of an easement created by grant does not show abandonment." Lasell College v. Leonard, 32 Mass.App.Ct. 383, 390 (1992), quoting Dubinsky v. Cama, 261 Mass. 47, 57 (1927). Rather, "there must be acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." Dubinsky, 261 Mass. at 57 (citations omitted). Nonuse coupled with the "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." Carlson v. Fontanella, 74 Mass.App.Ct. 155, 158-59 (2009). Thus, the courts have recognized that abandonment may be established based on the totality of three factors: "1) long-term nonuse, 2) acquiescence by the dominant estate to obstruction of the easement, 3) inconsistent use by the dominant estate." Siebecker, 2014 WL 1896414, at *6.
13 Wiget contends that its maintenance of gates on either side of the disputed area is inconsistent with the Plaintiff’s purported easement rights. However, if that were sufficient, then 19 Wiget’s rights must as surely have been abandoned because from the 1940s until the 1990s there was no evidence of 19 Wiget ever using the disputed area. Therefore, absent evidence the Plaintiff and its predecessors-in-interest manifested their intention to abandon the easement, by their long-term nonuse of the disputed parcel, or their acquiescence in the gate on either side of the area the Defendants’ argument must fail. The Plaintiff, on the other hand, contends that the gates were not inconsistent with its easement rights where the Plaintiff and its predecessors-in-interest had keys to the gates, were granted access through the locked gates whenever they wanted, and consistently used the entire length of the disputed parcel when they needed to.
Further Mr. Monteforte testified that his grandfather and uncles walked over the disputed area with pushcarts. Mr. Monteforte also testified that in the 1970s he worked at his father’s restaurant and visited his family on Bartlett Place. He would, occasionally, leave through the back door to enter the basement to 20 Bartlett and walked over, not just the back of 20 Bartlett but walking over the disputed portion of the way. Additionally he obtained a key to the gate when he needed to have a truck access through the Wiget Gate. In 2012 Mr. Ianuzzi testified that frequent use was made through the section of the Bartlett Fence that he removed to access the back of the building. Access through that fence is accessing the disputed portion of the way. The only time 20 Bartlett’s unfettered access through the Wiget Gate and onto the disputed way was in March of 2015 when 19 Wiget changed the lock to the gate.
The record reflects that none of these parties made frequent use of the disputed area. In fact, the evidence supports a conclusion that none of the parties wanted frequent or easy access over the disputed area. They liked the enclosure to prevent trespassing behind their building or to prevent the public from cutting through their private way. Even Mr. Sgarano’s "No Parking" sign facing, as it did, out to Wiget Street, is evidence that the gate was intended to keep out trespassers and not to prevent the abutters’ access.
The Court finds that the Plaintiff and its predecessors-in-interest were able to travel the length of the disputed parcel in spite of the gates and fence, and in fact did so continually.
Therefore, the Defendants have failed to prove that the Plaintiff and its predecessors-in-interest intended to abandon their easement over the disputed portion of the way.
JUDGMENT
For the above stated reasons the judgment shall enter:
1. For the Plaintiff on Count I of its Amended Complaint the Court makes the following declarations:
(1) Bartlett Place is located, as stated, on the 1887 F.O. Whitney Plan, running from Salem Street, past 8-10 Bartlett Place and 20 Bartlett Place where it then turns sharply to the left and ends where it intersects Wiget Street.
(2) Twenty Bartlett, LLC has the right, in common with all persons lawfully entitled thereto, to use and enjoy the entirety of Bartlett Place.
(3) These Defendants may not block or impede Plaintiff’s right of access to and enjoyment of any part of, or all of Bartlett Place.
2. For the Plaintiff on Count V, Nuisance, against the Defendant 19 Wiget Condominium Trust Trustees;
3. For the Defendants’ 13 Wiget, LLC on Count V, Nuisance; and 4. For the Plaintiff on Defendants’ affirmative defenses of abandonment and easement by prescription.
*Editor’s Note: The referenced Addendum A, pg. 24, par. 1, footnote # 16, has not been reproduced.