Bennett v. Papetsas
Bennett v. Papetsas
Opinion of the Court
Charles Bennett, owner with his wife
The master found generally: "As will be shown later in this report, there was testimony of certain trespasses on the land of Mrs. Papetsas as well as on the land of Mr. Bennett. I find that such trespasses by Mr. Bennett’s group upon Mrs. Papetsas land have not and do not constitute any adverse use or possession as to constitute any claim of right to any portion of the land involved.” The order of reference as described at the outset of the master’s report required the master "to report [his] findings of fact to the Court”; and the subsidiary findings are reported in such detail that it is reasonable to assume that the master complied with the order of reference and that the subsidiary findings are all the findings on which the general findings are based. Jones v. Gingras, 3 Mass. App. Ct. 393, 395 (1975), citing Deyo v. Athol Housing
1. The master found that the Papetsas family and the Bennett family have, for many years, been using the twelve foot opening in the wall to drive their automobiles to their respective properties. So far as appears, that opening is the only means of access to Bennett’s property. The master further found that Bennett had owned an automobile since the nineteen twenties, that he had been using the passageway ever since, and that "Mr. Bennett and his family have been using this same opening in excess of twenty years to enter and exit from their residence at 70A Commercial Street.” These findings of open and uninterrupted use over a period in excess of twenty years raise a presumption that such use was adverse and under a claim of right giving rise to an easement by prescription. Tucker v. Poch, 321 Mass. 321, 324 (1947). Flynn v. Korsack, 343 Mass. 15, 18 (1961). Mastandrea v. Baressi, 2 Mass. App. Ct. 54, 56-57 (1974). Bills v. Nunno, 4 Mass. App. Ct. at 280-281. And there is nothing in the subsidiary findings to indicate that Bennett’s use was by permission inconsistent with the claim of right. Flynn v. Korsack, 343 Mass. at 19. Nor do those findings suggest any other circumstances which would vitiate the presumption in this case. In light of the detailed nature of the master’s report, we can assume that, had there been
2. It is clear from the master’s subsidiary findings that Bennett has acquired ownership of the locus by adverse possession. These findings establish that about sixty years ago Bennett’s grandfather built a small garage and another small building on the locus. The garage “was used for the parking of automobiles by Mr. Bennett since the 1920’s when he first purchased a motor vehicle. The ... small[er] building was used by Mr. Bennett’s grandparents to keep a cow and later goats.” Bennett acquired the property at 70A Commercial Street from his grandmother by deed dated February 9, 1952, and about that year razed the smaller building and planted grass on that plot. The master found that the grassy plot “would appear to a disinterested person to actually be part of Mr. Bennett’s yard.” It was not until November, 1972, when Papetsas had a survey made of the land covered by her deed, that any dispute arose as to the ownership of the locus — more than twenty years since Bennett had acquired 70A Commercial Street and about sixty years since his grandparents, his predecessors in title, had acquired that property. The master found that since “over sixty years ago ... Mr. Bennett and his predecessors in title have claimed the ownership of the ... [locus] and the buildings thereon, as well as openly occupied the same.”
The subsidiary findings establish that Bennett and his “predecessors in title have had open, peaceable, continuous and exclusive possession of the [locus].” LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488, 492 (1938). These findings standing alone would justify (if not require) an inference that Bennett’s possession was adverse under a claim of right. Shoer v. Daffe, 337 Mass. 420, 423-424 (1958). Boutin v. Perreault, 343 Mass. 329, 331-332 (1961). Collins v. Cabral, 348 Mass. 797, 798 (1965). Here even such a short step is unnecessary in view of the express finding that Bennett and his predecessors have claimed ownership in the locus for sixty years. Bond v.
Accordingly, the judgments are reversed, and the cases are remanded to the Superior Court Department for further proceedings, upon appropriate amendment by Bennett of his pleadings in either or both actions, to determine (pursuant to part 1 of this opinion) the scope of Bennett’s easement by prescription and to establish (pursuant to part 2 of this opinion) his title to the locus by adverse possession.
So ordered.
All references hereafter to Bennett will, unless the context otherwise requires, include his wife.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.