NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-739
KEVIN T. MCLAUGHLIN
vs.
DUANE R. BONLIE, trustee,1 & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, as trustees of the 590 Condominium Trust
("the trust"), appeal from a judgment of a Superior Court judge
that (1) declared that the property at 183 Bradford Street in
Provincetown, now owned by the plaintiff, Kevin McLaughlin,
enjoys the benefit of a prescriptive easement to pass over a
pathway on the abutting property at 590 Commercial Street, and
(2) enjoined the defendants from interfering with McLaughlin's
use of this easement. The judge found that the prescriptive
easement was established primarily by the actions of one Jimmy
1 Of the 590 Condominium Trust.
2Jane E. Bloom, trustee of the 590 Condominium Trust. Jane Bloom is deceased. Majestic, an abutter to the back of 590 Commercial Street and
McLaughlin's predecessor in title, who regularly used the path
beginning as early as 1959 and continuing for well over 20
consecutive years. Majestic used the path to cut through, from
the back of his home at 283 Bradford Street, over to Commercial
Street, from whence he would walk to a shop he owned in another
part of town.
On appeal, the defendants argue that the judge's findings
that a prescriptive easement had been established were both
erroneous and inadequate. In particular, the defendants contend
that the judge failed to make necessary subsidiary factual
findings -- for example, regarding who the owners of 590
Commercial Street were at the time the easement was being
established -- and also failed to address whether Majestic's use
might have been "permitted" by those prior owners. As we
discern no error in the judge's findings and conclusions that
Majestic's use (as well as the use by others) satisfied the
requisite elements to establish a prescriptive easement, we
affirm the judgment of the Superior Court.
Background. 1. The use of the pathway. This case
involves two parcels of land in Provincetown, known as 283
Bradford Street ("283 Bradford") and 590 Commercial Street ("590
Commercial"). 283 Bradford fronts on Bradford Street, and is
presently owned by the plaintiff McLaughlin. 590 Commercial
2 fronts on Commercial Street, and contains a condominium managed
by the defendant 590 Condominium Trust, an association of unit
owners. 283 Bradford Street and 590 Commercial Street are
backyard neighbors -- that is, they share a common rear boundary
line. Bonlie, the defendant, is a trustee of the 590
Condominium Trust; the defendant Jane Bloom also served as a
trustee until her death in 2022.
The pathway at issue runs along one side of the 590
Commercial property, and allows persons to travel from the back
of 283 Bradford over the 590 Commercial Street property to
Commercial Street, where there is a gate. The pathway is
approximately fifty feet long and quite narrow, and is made of
wood until it turns into brick near Commercial Street.
The plaintiff McLaughlin proved the prescriptive easement
not through his own actions, but primarily through the actions
of Majestic, who purchased 283 Bradford in 1955 as a joint
tenant. Because Majestic died in 2014, well before trial, the
plaintiff proved Majestic's actions through the testimony of
several witnesses who knew Majestic, and were familiar with the
property and Majestic's use of it over the years.
The key witness was Richard Fowler, an Episcopal clergyman
who met Majestic in 1959 and formed a friendship with him that
lasted until Majestic's death. Fowler testified that he visited
Majestic at least three times a year from 1959 to 2014, usually
3 during the summertime. During these visits Fowler would walk
with Majestic almost daily across the pathway through 590
Commercial (until Majestic became infirm, around 2012), in order
to reach Commercial Street. No one objected to Fowler and
Majestic's use of the path. The trial judge credited Fowler's
testimony, and relied on it.
Fowler's testimony was corroborated, in part, by the
testimony of James McNulty, who moved into 586 Commercial Street
in 1971, at age 9. 586 Commercial Street is the property
adjacent to both 283 Bradford and 590 Commercial; while living
there, McNulty had a direct view of the pathway, through a
window facing 283 Bradford. McNulty lived at 586 Bradford until
1998, with the exception of one year, 1981. He was friendly
with Majestic and Majestic's roommate, a Mr. Simmons; McNulty
was also friendly with the occupant of 590 Commercial, whom he
called "Mary Main."3 As a young boy, McNulty helped Mary Main,
for example, by bringing seaweed from the beach, to spread in
her gardens at 590 Commercial. While living in and around 586
Commercial, McNulty observed Majestic use the pathway "fairly
regular[ly]" to access Commercial Street. McNulty also observed
Mr. Simmons use the pathway on occasion to access the beach.
3 The record is not clear as to whether "Mary Main" is the same person as Mary Mowery, from whom Eldred Mowery bought 590 Commercial in 1984 or 1985.
4 Furthermore, McNulty saw Jack,4 Majestic's partner, use the
pathway as well, after Jack arrived in the mid-1970s. McNulty
himself used the path, stating that he thought that he had
"implied" permission to do so from Mary Main.
The trial judge also gave "significant weight" to the
testimony of Dorothy Mowery, who moved into 590 Commercial in
1984 or 1985 and lived there until 1992 or 1993. Dorothy
Mowery's husband, Eldred Mowery, bought 590 Commercial from his
ex-wife, Mary Mowery. Dorothy Mowery's testimony was consistent
with Fowler's and McNulty's. She understood the pathway to be
"communal property." She saw Majestic and Simmons use the right
of way, and saw Simmons sweep the way in the evenings.
Majestic died in 2014, and his trust transferred 283
Bradford to James Turner and Tony Sampson, friends of his.
Turner and Sampson in turn sold 283 Bradford to McLaughlin in
August 2014.
2. The dispute. Sometime in 2015, defendant Bonlie
confronted renters from 283 Bradford who were using the pathway.
The renters told Bonlie that McLaughlin had told them they could
use the path. Bonlie asked the renters not to use the path.
The defendants then told McLaughlin by letter that the use of
4 Jack Hannon held title to 283 Bradford as joint tenants with right of survivorship with Majestic from October 1978 to August 2001, at which point he sold his interest to Majestic.
5 the path by the renters was trespassing. McLaughlin testified
that the defendants then closed off the pathway by a fence with
a locked gate.
In 2016, McLaughlin filed a complaint in Superior Court
against Bonlie and Bloom as trustees, seeking a declaratory
judgment that his property benefitted from an easement by
prescription over 590 Commercial, and also seeking an injunction
preventing the defendants and unit owners at the 590 Condominium
from interfering with the use of the pathway by McLaughlin and
his tenants.5 The judge conducted a bench trial in October 2022.
In April 2024, the judge issued an order declaring that
McLaughlin acquired a prescriptive easement over the pathway at
590 Commercial. The judge accompanied his order with findings
of fact and rulings of law, which included, inter alia, that
"the use of the walkway located on 590 was continuous and
uninterrupted beginning in 1959, that it was open and notorious,
and that it was adverse to the title holder(s) of 590 Commercial
Street for a period of not less than twenty years beginning in
1959." The judge ruled that the prescriptive easement was
appurtenant to Majestic's property at 283 Bradford, such that
when the property was transferred upon Majestic's death, the
5 Defendant Bonlie was also named as a defendant in his individual capacity, along with Noe Reyes d/b/a Reyes Landscaping P-Town; the claims against Bonlie individually and Reyes were dismissed by stipulation.
6 easement passed with title to the land.6 Judgment entered for
McLaughlin and the defendants appealed.
Discussion. To establish an easement by prescription,
McLaughlin was required to show, by clear proof, use of the
pathway by Majestic (or others at 283 Bradford) that was open,
notorious, adverse to the owner, and continuous for a period of
no less than twenty years. See G. L. c. 187, § 2; Boothroyd v.
Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). "The nature and
the extent of occupancy required to establish a right by adverse
possession [or by prescription] vary with the character of the
land, the purposes for which it is adapted, and the uses to
which it has been put." Barnett v. Myerow, 95 Mass. App. Ct.
730, 738 (2019), quoting LaChance v. First Nat'l Bank & Trust
Co. of Greenfield, 301 Mass. 488, 490 (1938). The claimant
bears the burden of proof as to each element of a prescriptive
easement. Boothroyd, supra at 44.
6 The defendants have not contested this ruling. The conveyance of a dominant estate automatically conveys an appurtenant easement unless otherwise stated in the deed. See G. L. c. 183, § 15. An easement is appurtenant to an estate "when it is created to benefit and does benefit the possessor of the land in his use of the land." Denardo v. Stanton, 74 Mass. App. Ct. 358, 361 (2009), quoting Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223 (1996). There is a general presumption in favor of appurtenant easements instead of easements in gross, or personal easements. See Denardo, 74 Mass. App. Ct. at 361. Thus, "[a]n easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate." Id., quoting Schwartzman, supra.
7 1. Findings as to the elements of a prescriptive easement.
The defendants argue that the judge erred in finding that
Majestic's use between 1959 to 1984 was continuous, open and
notorious, and adverse. Specifically, the defendants argue that
the evidence at trial showed intermittent rather than continuous
use; that the plaintiff did not show that Majestic's use ever
put Mary Main, an owner of the 590 Commercial property during
the prescriptive period, on notice; and that Majestic's use was
permissive, rather than adverse. As noted, the trial judge
addressed the prescriptive easement elements in turn, and found
that the evidence had proved each of them. Whether the elements
of a prescriptive easement have been sufficiently shown are
generally questions of fact, see White v. Hartigan, 464 Mass.
400, 414 (2013), or mixed questions of law and fact, see
Houghton v. Johnson, 71 Mass. App. Ct. 825, 836 (2008) (applying
law to facts). We review a judge's findings that the elements
of a prescriptive easement have been met for clear error, see
White, supra, and his legal conclusions de novo. See Leahy v.
Graveline, 82 Mass. App. Ct. 144, 149 (2012).
a. Continuous use. Relying on the testimony of Fowler,
McNulty, and Dorothy Mowery, the trial judge found that
Majestic's use was continuous for a period of not less than
twenty years beginning in 1959. The defendants argue that this
finding was clearly erroneous because the testimony at trial,
8 including Fowler's, showed only sporadic and intermittent use of
the walkway by Majestic, and that evidence of sporadic use is
not sufficient to meet the requirement of continuousness. See,
e.g., Boothroyd, 68 Mass. App. Ct. at 45. They argue, for
example, that Fowler's testimony showed no more than that
Majestic used the pathway for three weeks every summer. This
argument is unavailing.
To acquire an easement by prescription, a claimant's use
must be continuous, that is, "repeated acts of use, of such a
character and at such intervals, as afforded a sufficient
indication to the owner of the land that the right of way was
claimed against him." Bodfish v. Bodfish, 105 Mass. 317, 319-
320 (1870). Under the case law, constant use is not required,
Id. at 319; rather what must be shown is "continuity of
possession and enjoyment of an easement" that is unbroken.
Boothroyd, 68 Mass. App. Ct. at 45, quoting Pollard v. Barnes, 2
Cush. 191, 199 (1848). Continuity can be proven by
circumstantial evidence. Bodfish, 105 Mass. at 319.
The trial judge found from the witness testimony adduced at
trial, including Fowler's testimony, that:
"[I]t is reasonable to infer that Majestic did walk along the walkway to access Commercial Street, then on to his shop. Likewise, it is reasonable to infer Majestic did so on the days the shop was open, as well as for general access to Commercial Street for other reasons such [as] shopping or general access to Commercial Street and its offerings."
9 These findings of fact were based on reasonable inferences from
the evidence, and were not clearly erroneous. See White, 464
Mass. at 414. Majestic did not have a car, and owned a shop on
Commercial Street in another part of town. The evidence showed
that Majestic would walk. Fowler testified that when he was
vacationing with Majestic, which he did three times a year
starting in 1959, they would use the pathway "almost daily" to
access Commercial Street, and that they did so every time he
visited. McNulty additionally testified that he saw Majestic,
Simmons, or their guests use the pathway "fairly regular[ly],"
and Dorothy Mowery testified similarly. The judge was not
required to evaluate this evidence in a straightjacket, limited
only to the dates on which a witness actually saw Majestic and
others use the path. Rather, from this evidence the judge could
draw the reasonable inference that Majestic used the pathway "on
the days the shop was open, as well as for general access to
Commercial Street for other reasons such [as] shopping or
general access to Commercial Street and its offerings," and that
this use by Majestic (and others from 283 Bradford, including
Mr. Simmons) was sufficiently continuous from at least 1959
through 1979. The judge's finding that this constituted
continuous use during the requisite 20-year period thus was not
clearly erroneous.
10 b. Open and notorious. The trial judge further found that
the use by Majestic was open and notorious. The judge stated
that "Majestic made no attempt to conceal his use" and that
"[d]ue to the closeness of the home on 590 to the walkway,
Majestic's passing and repassing along the walkway and opening
and closing the white picket gate leading in or out, was
sufficient to put a reasonable property owner on notice of his
use." The defendants counter that this finding was erroneous,
because one of the former owners, Mary Main, was blind, and
Majestic's use was not of a nature to put a blind person on
notice that Majestic was using the pathway. This argument also
fails.
The requirement that the use be open and notorious to
establish a prescriptive easement "is intended only to secure to
[owners] a fair chance of protecting" themselves. White, 464
Mass. at 417, quoting Foot v. Bauman, 333 Mass. 214, 218 (1955).
"The extent of openness and notoriety necessary for the
acquirement of title by adverse use varies with the character of
the land." Boothroyd, 68 Mass. App. Ct. at 44, quoting Tinker
v. Bessel, 213 Mass. 74, 76 (1912). "To be 'open,' the use must
be without attempted concealment.' Boothroyd, 68 Mass. App. Ct.
at 44. To be "notorious," the use "must be sufficiently
pronounced so as to be made known, directly or indirectly, to
the landowner if he or she maintained a reasonable degree of
11 supervision over the property." Id. The use does not have to
be actually known to the landowner, so long as the use is such
that the landowner may be deemed to be on constructive notice.
Id.
Here, there was no clear error in the judge's finding that
Majestic's use was open, in that he did not attempt to conceal
it. The evidence showed that Majestic was easily observable--
and that he was in fact observed--when walking along the
pathway. Furthermore, the judge's finding of notoriety,
considering the nature of Majestic's use (walking over a pathway
that was in close proximity to 590 Commercial) was not clearly
erroneous.
The defendants' argument that openness was not shown
because Mary Main was blind is without merit, where McLaughlin
did not have to prove that the former owners had actual notice
of Majestic's use of the pathway, where the use was of a
character to put the landowner at least on constructive notice,
and where there in any event was evidence that Mary Main was
present at the property and used her backyard for gardening.
See Boothroyd, 68 Mass. App. Ct. at 44-45. The judge did not
err in finding that the use was open and notorious.
c. Adverse. The trial judge also found that Majestic's
use was adverse. The defendants challenge this finding as well,
positing that Mary Main allowed Majestic to use the pathway as a
12 friendly accommodation. The defendants point to evidence that
Mary Main was friendly with Majestic, but their evidence stops
there--indeed, the defendants point to no evidence that Mary
Main even spoke to Majestic about the use.
"To be adverse, the use must be made under a claim of
right." White, 464 Mass. at 418. The granting of permission is
inconsistent with adverse use. See Ryan v. Stavros, 348 Mass.
251, 263 (1964). However, if a party shows open, notorious, and
continuous use of the land of another for twenty consecutive
years, the law engages in a presumption that such use was
adverse and conducted under a claim of right. Smaland Beach
Ass'n v. Genova, 94 Mass. App. Ct. 106, 115 (2018); Daley v.
Swampscott, 11 Mass. App. Ct. 822, 827 (1981). In those
circumstances, the burden shifts to the landowner to show the
use was permitted. Smaland Beach Ass'n, 94 Mass. App. Ct. at
115. Moreover, mere acquiescence in the use of another does not
constitute permission. Rotman v. White, 74 Mass. App. Ct. 586,
590 (2009).
Here, given the trial judge's findings of open, notorious,
and continuous use for twenty years, Majestic's use of the
pathway was presumed to be adverse, and McLaughlin thus was not
required to prove that the use was not permitted. Where there
was no evidence adduced at trial to show that Majestic's use was
13 permissive, the judge did not err in finding that his use was
adverse.
The defendants point to McNulty's testimony that the
neighbors were friendly with each other, and that McNulty
thought that Mary Main had given him (McNulty) implied
permission to use the pathway. This testimony, however, does
not speak with any specificity to whether Majestic's use was
permissive, and such a conclusion certainly was not required.
See Totman v. Malloy, 431 Mass. 143, 146 (2000) (declining to
create a presumption or inference of permissive use among close
family members for purposes of adverse possession). Rather, the
evidence was such that the judge's finding of adversity was well
supported and not clearly erroneous. And the judge of course
was not required to infer from McNulty's testimony (that he
believed he (McNulty) had implied permission to use the pathway)
that Majestic's use was permissive.7
2. Adequacy of subsidiary findings. The defendants also
argue that the judge failed to make adequate subsidiary findings
7 As the trial judge's finding that Majestic's use was adverse during a twenty year period starting in 1959 was not clearly erroneous, the defendants' argument that Majestic's use was permissive starting in 1984 has no bearing on the determinative issue. We note, however, that Dorothy Mowery, the occupant of 590 Commercial starting in 1984 or 1985 and owner by 1987, testified that she understood that Majestic and Simmons had a right of way over the property, and that she could not prevent them from using the right of way.
14 to support the ultimate finding of an easement by prescription.
Specifically, the defendants argue that the judge failed to make
findings as to the identities of the owners of 590 Commercial
prior to Dorothy Mowery (whose husband took ownership in 1984 or
1985 and transferred it to both of them as tenants by the
entirety in 1987), and specifically whether those prior owners
granted Majestic permission to use the path. The defendants
further argue that without such subsidiary findings, the judge
could not find that Majestic's use was adverse.
The judge, however, was not required to make such findings
in the circumstances presented. As stated supra, continuous,
open, and notorious use of an easement for twenty years creates
a presumption of adversity. See Smaland Beach Ass'n, 94 Mass.
App. Ct. at 115; Daley, 11 Mass. App. Ct. at 827. While such
subsidiary findings may have been helpful, the judge was not
required to make them when the evidence supported the judge's
15 findings of Majestic's open, notorious, and continuous use of
the pathway for twenty years.8
Judgment affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.9),
Clerk
Entered: January 30, 2025.
8 The defendants also argue that the judgment for McLaughlin on Count I of his complaint for declaratory judgment should be reversed because McLaughlin failed to prove that the trust is the owner of the land in question, and because McLaughlin did not join the individual unit owners. This argument is unavailing.
The trust is the association of unit owners for the 590 Condominium, as reflected in the master deed. As such, the trust has the authority by statute "[t]o conduct litigation and to be subject to suit as to any course of action involving the common areas." G. L. c. 183A, § 10 (b) (4). Accordingly, the trust is a proper defendant in a declaratory judgment action, such as the one here, which seeks to establish the existence of a prescriptive easement over the common areas of the condominium property. Similarly, the trustees are evidently the individuals who erected the fence. They also are proper defendants in an injunction action. We note that the judgment operates against these defendants and their privies -- those whose interests were "adequately represented" and whom it would be fair to bind. See Laramie v. Philip Morris USA, 488 Mass. 399, 405-406 (2021).
9 The panelists are listed in order of seniority.