Gifford v. Otis

873 N.E.2d 792, 70 Mass. App. Ct. 211
CourtMassachusetts Appeals Court
DecidedSeptember 24, 2007
DocketNo. 06-P-1041
StatusPublished
Cited by1 cases

This text of 873 N.E.2d 792 (Gifford v. Otis) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gifford v. Otis, 873 N.E.2d 792, 70 Mass. App. Ct. 211 (Mass. Ct. App. 2007).

Opinion

Katzmann, J.

In this appeal, we consider the statutory land registration scheme and the effect of a failure to perfect certificate of title on a claim of prescriptive easement rights.

On October 3, 2005, the plaintiffs, John and Debra E Gifford, filed a verified complaint in the Land Court seeking to establish a prescriptive easement over a portion of land owned by the de[212]*212fendants, trustees of the Mermaid Avenue Condominium Trust. On November 22, 2005, the defendants filed a motion to dismiss, or in the alternative, a motion for summary judgment, asserting that the plaintiffs had failed to establish a prescriptive easement. In an exercise of her discretion, the Land Court judge treated the defendants’ motion as one for summary judgment and held that the filing of a registration petition in April, 1986, by the defendants’ predecessors in title interrupted the plaintiffs’ prescriptive easement claims as of that date, and that the 1988 judgment of registration, which was affirmed in 1989 by an order of this court pursuant to our mie 1:28, precluded the plaintiffs’ prescriptive easement claims before that date. Moreover, because the plaintiffs could only have enjoyed the easement between 1989 and 2005, when the complaint was filed, they could not show their use of the contested area uninterruptedly for the requisite twenty years. The plaintiffs appealed from the order granting summary judgment. We affirm the judgment of dismissal.

Background. The plaintiffs own a one-half undivided interest in a property known as lot 5 and numbered as 15A Pier View Avenue, in Revere (lot 5). The defendants own Mermaid Avenue (the locus), a private way located within a larger parcel (Cherry Street parcel) also owned by the defendants. Lot 5 and the Locus are separated by a single parcel, 17 Pier View Avenue.

On April 15, 1986, the defendants’ predecessor in title, Cara-betta Enterprises, Inc., filed a petition for registration of the Cherry Street parcel4 in the Land Court. Carabetta Enterprises, Inc. vs. Furlong, Land Court Reg. Case No. 41931 (December 2, 1988). On February 18, 1987, pursuant to G. L. c. 185, §§ 38 & 39, notice was sent to all abutters, published in the Revere Journal, and posted on the locus. As nonabutters, the plaintiffs’ predecessors in title did not receive written notice. Between February 27, 1987, and March 9, 1987, several parties intervened in the proceeding, asserting that they had prescriptive rights in portions of the locus. The plaintiffs’ predecessors in title did not appear.

On December 2, 1988, a judgment issued from the Land Court granting a prescriptive easement to James and Dorothy [213]*213Furlong to park no more than two automobiles on the locus at the rear of 11-13 Pier View Avenue (Furlong easement) and a prescriptive easement to Edmund C. Bell to park one automobile on the locus at the rear of 7-9 Pier View Avenue (Bell easement), both with the right to pass and repass over the locus.

The judge further ordered “that a decree be entered registering and confirming the petitioner’s title in the property shown on Land Court Plan No. 41931 A” and allotted the parties sixty days after the entry of the final judgment to determine the exact easement locations. On October 18, 1989, the Appeals Court, in an unpublished memorandum and order, affirmed the judgment, rejecting Carabetta’s contention that “the evidence was insufficient to support a finding that the . . . use [by Furlong and Bell] of the locus was sufficiently open and notorious to put the owner on notice of the adverse use and give rise to prescriptive easements.” Carabetta Enterprises, Inc. v. Furlong, 27 Mass. App. Ct. 1422 (1989). The registration process, however, was never completed in accordance with G. L. c. 185, § 48, and, as a certificate of title never issued, the registration proceeding remains open.

After a mortgage holder foreclosed on the property in August, 2003, the defendants acquired the Cherry Street parcel.5 In May, 2005, the defendants posted signs along Mermaid Avenue, which read: “Mermaid Ave: Private Rd., M.G.L. Sec. 79F Ch. 233, Resident/Easement Only, NO PARKING, Police Take Notice, Towed at Owners Expense, M.G.L. Sec. 120D Ch. 266, G&J Towing 781-284-1810”. The plaintiffs then instituted the present action.

The plaintiffs’ claims are primarily premised on the affidavit of Daniel F. Duggan, the owner of lot 5 between July 2, 1979, and September 8, 2000, and the plaintiffs’ predecessor in title. Duggan avers that beginning in July 2, 1979, he and his wife, Grace M. Duggan, parked their automobiles on the locus. Dug-gan further contends that he and his wife used the Mermaid Avenue area for ingress and egress to their parcel, that they used the parcel without permission, and that they did so continu[214]*214ously6 over a twenty-year period. The plaintiffs also assert, on the basis of Duggan’s affidavit, that from about 1930, until May, 2005, they and their predecessors in title used the locus for parking and for access and egress without permission from the owners.

Discussion. The filing of a petition to register land immediately interrupts a claim of easement by prescription. See Sandwich v. Quirk, 409 Mass. 380, 383, cert. denied, 502 U.S. 814 (1991) (interruption of claim of adverse possession); Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 542 n.8 (1996). Thus, in the present case, the plaintiffs’ prescription rights claim was interrupted in 1986, when Carabetta filed its petition to register land. We therefore must look backward to determine whether the plaintiffs’ predecessors in title had established an easement by prescription at the time of the 1986 filing. We conclude that although the plaintiffs may have pleaded sufficient facts to establish a dispute of material fact on the issue of an easement by prescription in the period up to 1986, in its present posture, the plaintiffs’ claim fails because the 1988 judgment of registration, affirmed by this court in 1989, foreclosed any claims on the locus prior to that point. To the extent the plaintiffs wish to challenge the judgment of registration, this is not the appropriate forum.

We turn to the effect of the registration proceeding. “The purpose of the Land Court Act [is] to provide a means by which title to land may be made certain and indefeasible.” Deacy v. Berberian, 344 Mass. 321, 328 (1962). General Laws c. 185, §§ 26 et seq. (as amended through St. 1981, c. 685, §§ 8 et seq.), contemplates a four-part land registration process to effectuate this goal. Under the first stage, described generally in G. L. c. 185, § 27, the petitioning party must file a complaint with the Land Court, setting forth a description of the property for which registration is sought.7 G. L. c. 185, § 26. “Immediately after the filing of a complaint,” the court must refer the matter to an examiner of title, “who shall search the records [215]*215and investigate all facts stated in the complaint or otherwise brought to his notice, and shall file in the case a report thereon, concluding with a certificate of his opinion upon the title.” G. L. c. 185, § 37. In initiating this process, the petitioner is seeking to confirm title to the subject property, thereby foreclosing potentially competing claims or rights. See Triangle Center, Inc. v. Department of Pub. Works, 386 Mass. 858, 866 (1982).

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873 N.E.2d 792, 70 Mass. App. Ct. 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gifford-v-otis-massappct-2007.