Stone v. Perkins
Stone v. Perkins
Opinion of the Court
Following a jury-waived trial to establish an easement by prescription, a judge of the Superior Court found that the party claiming the easement, the plaintiff Jeffrey Stone, had not “proven any particular location where the prescriptive easement crosses the defendants’ land.” That finding defeats Stone’s claim because, under the authority of Hoyt v. Kennedy, 170 Mass. 54, 56-57 (1898), a person may not acquire an easement of passage by prescription that is not substantially confined to a regular and particularized route. We, therefore, reverse the judgment that concluded Stone had acquired a four-foot wide right of way by prescription over the land of the defendants, Richard D. and Julie C. Perkins, but left to the parties the determination of precisely where that easement of passage by foot would be located.
Stone was bom in 1963 and left the Stone lot in 1982, within less than twenty years even assuming that Stone had begun perambulating on his own motion from the day he was bom. He returned to live on the Stone lot in 1986 and resumed walking or bicycling across the Locus.
Discussion. Acquisition by prescription of a right of way over land of another requires continued, uninterrupted use of that easement for twenty years. G. L. c. 187, § 2. “[Wjherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524, 528-529 (1930). Tucker v. Poch, 321 Mass. 321, 324 (1947). As with adverse possession, the use must be open, notorious, continuous, and adverse. Ryan v. Stavros, 348 Mass. 251, 263 (1964). Boston Seaman’s Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248, 251 (1985).
As suggested in the opening, that pragmatic resolution of the parties’ quarrel is not supported by our cases. Persons may not claim a right to pass generally over premises “wherever it is most convenient to themselves, and least prejudicial to the owner plaintiff.” Jones v. Percival, 5 Pick. 485, 486 (1827). In Starkie v. Richmond, 155 Mass. 188, 196 (1892), the court observed that, “A way imports a right of passing in a particular line, and not everywhere over the premises over which it is claimed.” The point was explicated in Hoyt v. Kennedy, 170 Mass. 54, 56-57 (1898):
“A way imports of necessity a right of passing along a particular route between certain termini. Passing over a tract of land in various directions at different times from year to year not only has no tendency to establish a right over a particular route, but would seem to be inconsistent with such a claim. ... To establish a way by prescription, the use must be, not only open, adverse, uninterrupted, peaceable, continuous, and under a claim of right, but must be confined substantially to the same route, and to substantially the same purpose for which the way was designed originally, unless the way is one for all purposes.”
In the case of instruments that create an easement of way but fail to locate its bounds, the rule is otherwise; in such a case a court may fix the location of the way on the servient premises. Mahoney v. Wilson, 260 Mass. 412, 414 (1927). Cheever v. Graves, 32 Mass. App. Ct. 601, 605-606 (1992). When parties have expressed in a deed or other instrument intended to create rights in real property an intent to establish an easement, then it is appropriate that a court assist in giving meaning to the instrument and the intention of the parties, as a court does in interpreting incomplete or insufficiently precise terms of a contract. When, however, someone claims the right to burden real property through conduct only, the absence of a definite location renders doubtful whether the adverse use was sufficiently notorious and continuous to place the potentially servient landowner on notice of the adverse right that is maturing.
The judgment is reversed. The order to the parties to establish the location of a way least burdensome to the servient land is vacated. Judgment shall enter that Stone has no right to pass and repass over the Locus.
So ordered.
During Stone’s absence, his parents continued to live at the Stone lot, and Stone would occasionally visit there with his own children. Although the judge made no such express finding, it is implicit in his conclusions that he found members of the Stone family walked across the Locus during the years Stone was away, and thereby maintained a continuity of adverse use.
The judgment was not without some direction about the path of the easement by prescription. It stated that the easement was “across the western side of the property of the defendants” and that it began at the south property line of the defendants “near their south garage foundation wall, then west to at least the end of that wall, then north to Spring St. along a mutually convenient path between the defendants’ west garage foundation wall and the defendants’ west property line.”
Reference
- Full Case Name
- Jeffrey Stone & others v. Richard D. Perkins & another
- Cited By
- 5 cases
- Status
- Published