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
24-P-1396
MATTHEW WALSTON & another1
vs.
JAMES BUNN & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These cross appeals from a Land Court judgment concern the
ownership and use of various sections of a twenty-five-foot-wide
way known as North Street in Edgartown. We affirm so much of
the judgment as determines that the plaintiffs own a section of
North Street referred to as Area C by adverse possession, but do
not so own the section referred to as Area B. We vacate the
1 Jean Walston.
2Nadia Bunn; North12, LLC; ETown, LLC; Vineyard Oceans, LLC; Mortgage Electronic Registration Systems, Inc., as nominee for Webster Bank, N.A.; Jason Kicza; Desiree Kicza; and Mortgage Electronic Registration Systems, Inc., as nominee for HarborOne Mortgage LLC. Only the Bunns and North12, LLC, are parties to this appeal. The remaining defendants need not be discussed further. remainder of the judgment and remand the case for further
proceedings.
Background. The parties own properties situated on North
Street, portions of which are located across the street from one
another. The plaintiffs Matthew and Jean Walston own the house
and lot at 19 North Street (lot 1), on the north3 side of the
street. Lot 1, at least on paper, is a corner lot and its
eastern boundary abuts a twenty-five-foot way, referred to in
this case as "MS Way." The defendant North12, LLC (North12),
owns the house and lot at 12 North Street on the south side of
North Street. The defendants James and Nadia Bunn own the house
and lot on North Street to the east of lot 1, but separated from
it by MS Way, which runs north to south and intersects North
Street from the north. The eastern end of North Street
intersects a public way, Peases Point Way, and at least as of
1977, North Street provided access from lot 1 to Peases Point
Way and from there to other public ways.
Lot 1 and two other large parcels abutting North Street
were previously owned by Robert Carroll. A part of one of those
other parcels later became the North12 property, meaning that
the Walstons' and North12's chains of title have a common
3 Although lot 1 actually lies on the northwestern side of North Street, we adopt the parties' use of simpler directions; like the Land Court judge, we treat North Street as if it runs from east to west.
2 grantor, Carroll. When Carroll sold lot 1 to a predecessor of
the Walstons in 1977, the deed included a right of way over
North Street, but Carroll retained the fee in the section of
North Street that abutted lot 1, and he still owned the North12
property. When Carroll later transferred the North12 property,
he did not expressly retain the fee in that section of North
Street, and it passed (we presume by operation of the derelict
fee statute, G. L. c. 183, § 58) to others including North12's
predecessors.
In count one of their sixth amended complaint (the
operative complaint), the Walstons claimed ownership by adverse
possession of the fee in North Street along the entire southern
boundary of lot 1 (what the judge later labeled Area C, and much
of what he labeled Area B). In count two, the Walstons asserted
a quiet title claim. In count three, the Walstons asserted that
North12 was trespassing on lot 1 and on that part of North
Street that the Walstons claimed to own by adverse possession
(again, Area C and much of Area B). In count four, the Walstons
sought declarations that (a) lot 1 enjoyed a deeded right of way
over North Street east to Peases Point Way, by virtue of deeds
extending back to Carroll; and (b) North12 was interfering with
that right.
The parties' cross motions for partial summary judgment
focused on two issues. The first was whether Carroll, pursuant
3 to a right of substitution he reserved in his 1977 deed to one
of the Walstons' predecessors in title, Thomas Teller, had
relocated the right of way over North Street. Carroll
assertedly did so by constructing a way known as South Street,
which intersected North Street west of lot 1. South Street,
once reached by proceeding west on North Street from lot 1,
provided access to a public way known as Middle Street. Carroll
assertedly allowed Teller and his successor in interest,
Stephanie Bell,4 to use South Street to gain such access.5 A
Land Court judge ruled in favor of the Walstons, concluding
that, although Carroll had constructed South Street, and
although Teller and Bell had used it to access a public way,
Carroll never properly effected the substitution.
The second issue addressed at summary judgment was whether
lot 1's deeded right to pass over an eastern part of North
Street (east of its intersection with MS Way), which the judge
designated the "eastern section," had been extinguished. We
4 The Walstons' chain of title to lot 1 included the 1977 deed from Carroll to Teller, a 1984 deed from Teller to Bell (his daughter), and a 2014 deed from Bell to the Walstons. Teller's and Bell's spouses' names also appeared on the relevant deeds but are omitted here for brevity. Upon Bell's divorce in 2009 or 2010, she resumed using her original surname (Teller), but for clarity we refer to her as Bell in this decision.
5 South Street became a public way in 2001, as did the portion of North Street at and to the west of its intersection with South Street, and a portion of Middle Street.
4 will use that same nomenclature. This assertedly resulted from
Carroll's act of planting shrubs across North Street, east of
lot 1, in the late 1970s. The judge ruled in favor of North12's
and the Bunns' position that lot 1 had lost that right to pass
over the eastern section.
After a trial of the remaining claims, the judge issued
detailed findings and rulings, along with a plan of the North
Street area to which he added markings to illustrate those
rulings.6 The judge focused on three principal issues. First,
he ruled that the Walstons owned a small area of North Street he
labeled Area A, by virtue of their 2020 purchase from Carroll's
heirs of the fee in MS Way, combined with the effect of the
derelict fee statute, G. L. c. 183, § 58. Second, the judge
ruled that the Walstons and their predecessor Bell had acquired,
by adverse possession, the fee in a western part of North Street
that the judge labeled Area C, but not in an adjacent part of
North Street that he labeled Area B. Third, the judge ruled
that lot 1 had lost, through abandonment by Teller and Bell, the
right of way over Area B.
Judgment then entered declaring the rights of the parties
and ordering North12 to cease trespassing on Areas A and C and
6 We take judicial notice that the plan may be viewed on MassCourts as part of the judgment in Walston vs. North12, LLC, Land Court Department Dock. No. 20 MISC 000207 (Oct. 15, 2024).
5 to restore them to their previous condition. Both the Walstons
and North12 appealed.
Discussion. The cross appeals raise five main issues. The
Walstons challenge (1) the ruling at summary judgment that lot
1's right of way over the eastern section was extinguished by
prescription and (2) the ruling after trial that lot 1's right
of way over Area B was extinguished by abandonment.7
North12, for its part, challenges (3) the ruling at summary
judgment that Carroll had failed to effect a substitution for
lot 1's right of way over North Street, (4) the ruling after
trial that the Walstons and their predecessor Bell acquired all
of Area C by adverse possession, and (5) the ruling after trial
that the Walstons own the fee in Area A. We address the issues
in that order.
1. Eastern section; prescription. The Walstons challenge
the judge's summary judgment ruling that Carroll planted shrubs
across North Street in the late 1970s (when he still held the
fee in North Street as it abutted and ran east from lot 1). The
judge ruled that these shrubs blocked lot 1's access to the
eastern section and thus extinguished by prescription lot 1's
7 The Walstons also challenge the judge's ruling that they have not acquired Area B by adverse possession. We defer discussion of that issue until that part of our decision addressing the judge's adverse possession ruling on Area C.
6 easement over that section.8 See Cater v. Bednarek, 462 Mass.
523, 528 n.16 (2012) (acts of servient estate holder
inconsistent with easement may extinguish it by prescription).
The grant of summary judgment on this issue was error,
because the Walstons' summary judgment opposition materials
showed that there was a genuine dispute of material fact over
whether Carroll had planted any shrubs or taken any other action
to block lot 1's access to the eastern section. In particular,
the Walstons argued that although Teller (the key witness on the
point) testified at his deposition that "I think [Carroll] just
put shrubs up there and stuff" to block North Street, Teller
immediately thereafter testified, "I really don't know because I
never went out there." North12, in response, argued that
Teller's testimony established a blockage, although not
necessarily by Carroll. "In reviewing an order granting summary
judgment . . . we . . . consider the facts in their light most
favorable to the nonmoving party, drawing all reasonable
inferences in [that party's] favor." Sullivan v. Liberty Mut.
Ins. Co., 444 Mass. 34, 38 (2005). On the issue of
8 North12's and the Bunns' summary judgment motions argued that lot 1's right of way had been extinguished primarily by abandonment, rather than prescription, but their arguments referred to, among other assertedly undisputed facts, Carroll's claimed blockage of the right of way. As to the eastern section, at summary judgment, the judge rejected the abandonment theory but accepted the prescription theory.
7 extinguishment by prescription, the Walstons were the nonmoving
parties. Viewing the summary judgment record in the light most
favorable to them -- in particular, Teller's admission that he
lacked personal knowledge -- Teller's testimony was without
foundation and could not establish an intentional blockage by
anyone, let alone Carroll. The mere presence of shrubs, unless
planted by a servient tenant, does not show extinguishment by
prescription. See Desotell v. Szczygiel, 338 Mass. 153, 159
(1958).9 Accordingly, it was error to award summary judgment to
North12 on the eastern section.
This and other factual disputes relating to prescription
could have been resolved at trial, where Teller essentially
repeated his equivocal deposition testimony, and where other
evidence bearing on the issue of blockage by Carroll was
offered. But the judge made quite clear to the parties that he
would not allow them to use trial evidence to challenge his
summary judgment ruling on this or other issues, and we cannot
make credibility determinations on appeal. The factual disputes
regarding prescription of lot 1's easement over the eastern
9 Elsewhere in his summary judgment decision the judge stated that Carroll "installed (or allowed the growth of) the [s]hrubs." Allowing shrubs to grow would not be an act of the servient tenant, as is required for extinguishment by prescription. See Cater, 462 Mass. at 528 n.16.
8 section were thus never appropriately resolved and must now be
resolved on remand.
We are unpersuaded by the Bunns' argument that we should
affirm the judgment as to the eastern section on the alternative
ground of abandonment. The Bunns rely on the judge's finding
after trial that, once Carroll built South Street, Teller and
Bell "intended . . . to abandon [North Street] as a means of
reaching anything east of Area C," which would include the
eastern section (as well as Area B). The problem with the
Bunns' argument is that, as we explain next, the abandonment
ruling itself was based on an erroneous legal standard. We are
therefore constrained to vacate so much of the judgment as
addresses lot 1's right of way over the eastern section and
remand the claim for further proceedings.10
2. Area B; abandonment. The Walstons challenge the
judge's ruling after trial that lot 1's right of way over Area B
was extinguished by abandonment. The judge so ruled based on
his finding that, once Carroll built South Street and Teller and
Bell were able to use it for access to a public way, Teller and
Bell had ceased using North Street except as a means of access
west to South Street, which did not require travel over Area B.
10We express no view on whether the judge could make the necessary findings on the existing record, without further evidentiary proceedings.
9 Although the judge had ruled at summary judgment that Carroll
never properly exercised his right to substitute another right
of way for the one leading east over North Street, the judge
found at trial that Teller nevertheless believed Carroll had
done so. Teller considered Carroll's right of substitution to
be an agreement, which Carroll had performed and which Teller in
turn felt bound to perform. The judge ruled that Teller's and
Bell's intent to carry out Teller's promise not to use North
Street once Carroll made alternative access available, coupled
with their nonuse of Area B once Carroll did so, sufficed to
show that they had abandoned their right to use Area B.
This was error, because abandonment "requires a showing of
intent to abandon the easement by acts inconsistent with the
continued existence of the easement" (emphasis added). Cater,
462 Mass. at 528 n.15. "[N]onuse of itself, no matter how long
continued, will not work an abandonment" (citation omitted).
Id. To show abandonment, a party is "required to prove not mere
lack of use, but 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" (emphasis added; quotation and citation
omitted). Benvenuto v. 204 Hanover, LLC, 97 Mass. App. Ct. 140,
149 (2020). "[S]ome affirmative conduct by [the easement
holder] inconsistent with the exercise of the easement" must be
10 shown. Id. at 149-150. This is a "rigorous standard" and the
party claiming abandonment has a "heavy" burden. Proulx v.
D'Urso, 60 Mass. App. Ct. 701, 704 n.2 (2004). Although
"abandonment is usually a question of fact," Willets v.
Langhaar, 212 Mass. 573, 575 (1912), that fact must be
determined using correct legal standards.
Here, although the judge acknowledged the rule that
abandonment required conclusive and unequivocal acts by Teller
or Bell (not merely nonuse), he did not identify any such acts.
Nor can we agree that abandonment may be shown by nonuse coupled
only with an intent to abandon, without that intent being
"conclusively and unequivocally manifest[ed]" by any act of the
easement holder. Benvenuto, 97 Mass. App. Ct. at 149. The
parties have not cited, nor have we found, any authority in
Massachusetts or elsewhere establishing that nonuse together
with an unmanifested intent is enough.11
11The judge made no finding that, once Carroll built South Street, Teller or Bell made any statements to Carroll or anyone else of their intent or agreement to abandon the easement east over North Street. Even if they had done so, it does not appear that such a statement would be a sufficient "act" to work an abandonment. "An oral or written statement by an easement holder that the holder intends to give up the servitude generally does not satisfy the affirmative conduct standard" (footnote omitted). J.W. Bruce, J.W. Ely, Jr., & E.T. Brading, The Law of Easements & Licenses in Land § 10:20 (2025-2 ed.) (Law of Easements & Licenses in Land).
11 North12 nevertheless maintains that an easement holder may
be held to have engaged in affirmative conduct merely by
acquiescing in conduct by the servient estate holder that is
inconsistent with the easement. For that proposition, North12
relies on this court's statement in The 107 Manor Ave. LLC v.
Fontanella, 74 Mass. App. Ct. 155, 158 (2009) (107 Manor Ave.).
There we said, "Our cases indicate that 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." 107 Manor Ave.,
supra, citing Sindler v. William M. Bailey Co., 348 Mass. 589,
593 (1965), and Lund v. Cox, 281 Mass. 484, 492-493 (1933). But
107 Manor Ave. did not characterize acquiescence either as
conduct or as otherwise sufficient to establish abandonment.
See 107 Manor Ave., supra at 158-159. Moreover, in 107 Manor
Ave., the easement holders had indeed engaged in affirmative
conduct: they had extended their lawn into a portion of the
right of way at issue, showing their intention not to use it as
a way. Id. at 159. See Benvenuto, 97 Mass. App. Ct. at 149-150
(relying on this feature of 107 Manor Ave.). The Walstons'
predecessors did nothing similar here -- and when North12's
predecessors took action to block the way with fencing, the
Walstons filed suit.
12 It is true that the 1965 Sindler decision and the 1933 Lund
decision relied on in 107 Manor Ave. did not state or apply the
requirement of affirmative conduct by the easement holder before
abandonment may be found. See Sindler, 348 Mass. at 592-593;
Lund, 281 Mass. at 492-493. But the Supreme Judicial Court
stated and applied that requirement both (1) before Sindler and
Lund, see Dubinsky v. Cama, 261 Mass. 47, 57 (1927), and cases
cited; and (2) after Sindler and Lund, see Cater, 462 Mass. at
528 n.15. This court, too, has stated and applied the
affirmative conduct requirement in two recent cases. See
Trustees of the Beechwood Village Condominium Trust v.
USAlliance Fed. Credit Union, 100 Mass. App. Ct. 192, 197
(2021); Benvenuto, 97 Mass. App. Ct. at 149. We are not free to
depart from that requirement.
Moreover, in both Sindler and Lund, the court relied on the
easement holder's acquiescence in conduct by or for the benefit
of the servient estate holder that was inconsistent with the
existence of the easement. See Sindler, 348 Mass. at 593
(placement of chain); Lund, 281 Mass. at 489-490, 492-493
(construction of walls and buildings). See also First Nat'l
Bank of Boston v. Konner, 373 Mass. 463, 467 (1977) (noting this
aspect of Sindler). That element is missing here, where it is
not apparent that Carroll, as the servient estate holder, took
any such action inconsistent with the easement in Area B. Even
13 if Carroll planted the shrubs, they would not have blocked
Teller's and Bell's access to Area B. And although Carroll's
construction of South Street allowed additional access from lot
1 to a public way, such access was not inconsistent with lot 1's
then-existing access over Area B and the eastern section of
North Street out to a different public way. Even if that then-
existing access was no longer necessary, "lack of necessity or
obsolescence will not, alone, suffice to extinguish an express
easement."12 107 Manor Ave., 74 Mass. App. Ct. at 160, citing
Emery v. Crowley, 371 Mass. 489, 495 (1976).
Although we see no sufficient affirmative conduct by Teller
and Bell, we acknowledge another potential basis for
abandonment: the judge's findings that, in 2015-2016, the
Walstons extended their lawn and an underground sprinkler system
12The mere use of alternative access, such as over South Street, is ordinarily insufficient to prove abandonment. See Law of Easements & Licenses in Land § 10:20 & n.8. Such use is not necessarily "inconsistent with the continued existence of the easement" (emphasis added). Cater, 462 Mass. at 528 n.15. That is particularly so where the alternative access exists not as of right but only because it is tolerated by other landowners. See Law of Easements & Licenses in Land, supra at n.12, citing Consolidated Rail Corp. v. MASP Equipment Corp., 67 N.Y.2d 35, 40 (1986). As we shall discuss, because Carroll failed to properly effect substitution, Teller and Bell had no legal right to use South Street, at least for the first twenty years that they used it.
14 into Area B.13 Cf. 107 Manor Ave., 74 Mass. App. Ct. at 159
(extending lawn into right of way showed intention not to use it
as way). But the judge also found that the Walstons
occasionally parked cars there. In addition, Matthew Walston
testified that he had left gravel underneath the lawn in this
area "because we knew we were going to drive on it," and he was
"able to still drive and park [his] cars" there even after
sprinklers were installed. Although North12 asserted in its
closing argument at trial that extension of the lawn and
sprinkler system constituted evidence of intent to abandon, the
judge made no finding on that issue. Therefore, North12's claim
that the Walstons' conduct conclusively and unequivocally showed
their intent to abandon cannot be resolved without additional
findings by the judge.14 We remand for that purpose.
3. Substitution. North12 challenges the judge's ruling at
summary judgment that Carroll, despite reserving in his deed of
lot 1 to Teller the right to substitute another right of way for
lot 1's right of way over North Street to Peases Point Way, had
13The judge's findings on this issue applied to Area C as well, but whether the easement over Area C was abandoned is moot in light of the judge's ruling that the Walstons acquired the fee in Area C by adverse possession -- a ruling we affirm infra.
14We again express no view on whether the judge could do so on the existing record, without further evidentiary proceedings.
15 failed to accomplish such a substitution. Carroll's deed of lot
1 to Teller stated in pertinent part:
"The premises are conveyed subject to and with the benefit of the right to use [North Street] for all purposes including utilities which public streets and ways are used in the Town of Edgartown in common with those lawfully entitled thereto on the condition that at any time Grantor herein [Carroll] may substitute another right of way at which time the Grantee herein [Teller] by acceptance of this deed hereby agrees to relinquish all rights in and to [North Street], provided, however, that said substituted right of way leads to a public way" (emphasis added).
The judge ruled that although Carroll built South Street, and
although lot 1's owners Teller and Bell were able to use South
Street in the course of gaining access between lot 1 and a
public way, Carroll never effected the substitution, for two
reasons.
First, the judge reasoned that lot 1 still had to use a
western portion of North Street to obtain access to South Street
Therefore, the attempted substitution could not have
extinguished the entirety of lot 1's right to use North Street.
Second, less than a year after Carroll built South Street
(sometime in or after December 1977), he transferred the fee in
South Street, along with the fee in the four lots abutting it,
to four other owners. Carroll did so without reserving for the
benefit of lot 1 any right to use South Street to access a
public way, and South Street itself did not become a public way
until 2001. Thus, the judge found that lot 1 had no
16 "immediately enforceable rights" to use South Street. Put
differently, Carroll did not "substitute another right of way"
as the deed authorized him to do (emphasis added). Carroll
merely created a new road and, apparently, acquiesced in the
Walstons' predecessors' use of it during the brief period that
Carroll continued to own it (until October 1978). He did
nothing more. For the Walstons' predecessors to acquire a right
to use South Street (before South Street itself became a public
way in 2001), they would have had to use it for the twenty-year
prescriptive period without permission from the four abutting
owners (who from October 1978 onward did not include Carroll).
On appeal, North12 does not seriously challenge, and we see
no error in, the judge's conclusion that Carroll's attempted
substitution did not comply with the terms of his deed to
Teller.15 Instead, North12 argues that, because Teller believed
that substitution had occurred and acquiesced in it, the
Walstons are now estopped from arguing that it did not occur.
We are not persuaded.
North12 relies on the following proposition:
15North12's brief (with emphasis added) states in an argument heading that Carroll "did substitute an alternative right of way," but the argument following the heading refers only to "an alternative means of access," and recognizes that Carroll did not confer on Teller and successor owners of lot 1 any "right" to use South Street.
17 "[T]he original easement may be deemed relocated when the conduct of the parties is such as to permit a conclusion that a different easement had been substituted for the way mentioned in the deeds because the evidence reflects a tacit understanding or an implied agreement, manifested by the dominant owner's acquiescence in the use of the different easement in lieu of the original for a number of years" (quotations and citation omitted).
Proulx, 60 Mass. App. Ct. at 705. But North12 fails to address
the judge's correct ruling that Carroll, despite building South
Street, never provided an "easement" over it to lot 1. Carroll
apparently did not object to whatever use lot 1 made of South
Street, but he gave lot 1 no "immediately enforceable rights" to
use it.16
That lot 1 might have acquired such rights from other
owners by prescription after twenty years of use, and that in
any event lot 1 acquired a right to use South Street once it
16Relatedly, even if Carroll had given lot 1 a right to use South Street to access a public way, Carroll did not give lot 1 any right to reach South Street. As the judge recognized, this could be accomplished from lot 1 only by "heading westbound" over North Street. That portion of North Street included a segment abutting what the judge referred to as "Ms. Teller's lot." As the judge also recognized, it was undisputed that Carroll's 1977 acquisition of the fee in North Street did not include the segment abutting "Ms. Teller's lot." North12 has cited nothing in the record showing that Carroll ever owned the fee in or a right of way over that segment. If he did not, he could not have included such a right of way in his deed of lot 1 to Teller or as part of his attempted substitution for the right of way specified in that deed. Nor was that segment included in what the town made a public way in 2001. If lot 1 had no right to pass over that segment, then Carroll's attempted substitution failed. Lot 1 may have acquired such a right by prescription or otherwise, but North12 made no such showing.
18 became a public way in 2001, is fortunate for lot 1. But those
happenstances do not retroactively remedy Carroll's 1978 failure
to substitute a different easement -- a "right" of way -- for
the easement specified in the deed. North12 cites no case
suggesting that a valid substitution or relocation may be
accomplished in this fashion.
Similarly unavailing is North12's reliance on the following
principle:
"It is well settled that the owner of land subject to a right of way may, with the assent of the owner of the dominant estate, substitute on his own land a new way for the old way, and that when the change is actually made and a new way is thus adopted by them, it fixes and determines their respective rights by dedication or by estoppel" (emphases added).
Byrne v. Savoie, 225 Mass. 338, 340 (1916). See Assad v. Sea
Lavender, LLC, 95 Mass. App. Ct. 689, 694 (2019) (same). But
here, although South Street was initially on Carroll's "own
land," he sold that land less than a year later, without
reserving any right for lot 1 to use it. If Carroll "adopted"
South Street as the new right of way at all, it was for a period
too brief to have "fixe[d] and determine[d]" any right of lot 1
to use South Street. Byrne, supra. Again, North12 cites no
case applying the principle stated in Byrne to rule that an
easement has been substituted or relocated in circumstances like
those present here. Therefore, and because lot 1 still had to
use a western portion of North Street to obtain access to South
19 Street, North12 has shown no error in the judge's ruling that
substitution did not occur.
4. Areas C and B; adverse possession. North12, as the
record owner of Area C and Area B, challenges the judge's ruling
after trial that lot 1, through the actions of Teller, Bell, and
the Walstons, acquired all of Area C by adverse possession.
North12 argues that the judge should have drawn the line between
Area C and Area B (i.e., between what lot 1 did and did not
acquire by adverse possession) no further east than the eastern
edge of a former driveway used by Bell.17 The Walstons, for
their part, contend that lot 1 not only acquired all of Area C
by adverse possession (as the judge ruled) but also acquired
Area B by adverse possession (a claim the judge rejected). In
short, both North12 and the Walstons argue that the judge erred
in determining the extent of lot 1's adverse possession.
"A party claiming title to land through adverse possession
must establish actual, open, exclusive, and nonpermissive use
for a continuous period of twenty years." Totman v. Malloy, 431
Mass. 143, 145 (2000). "The nature and the extent of occupancy
17The judge's finding of fact number 13 places the line "approximately [fifty-five] feet west of the eastern edge of the MS Way (if it had continued into [North Street])." The record does not show how much farther west of that line the former driveway began. At oral argument, North12 stated that it did not challenge the judge's adverse possession ruling as to the portion of Area C west of a fence across North Street erected by North12's predecessor in interest.
20 required to establish a right by adverse possession vary with
the character of the land, the purposes for which it is adapted,
and the uses to which it has been put" (citation omitted).
Aspell v. Raad, 106 Mass. App. Ct. 291, 293 (2025).
a. Area C. Conceding that the Walstons have acquired the
western portion of Area C by adverse possession, North12 focuses
instead on the part of Area C east of the former driveway,
arguing that Bell's use of that area was not "continuous" but
"at most[] intermittent." "'[C]ontinuous use' does not
necessarily mean 'constant use.'" Bodfish v. Bodfish, 105 Mass.
317, 319 (1870). A finding of "use[] in each of the twenty
consecutive years" justifies a finding of "continuous
enjoyment," even without "evidence of actual use in each year of
the twenty." Id. at 320. Where an adverse use has been
regular, that it was periodic rather than constant does not
"require a finding that the adverse use of the [area] was not
continuous." Stagman v. Kyhos, 19 Mass. App. Ct. 590, 593
(1985), quoting Mahoney v. Heebner, 343 Mass. 770, 770 (1961).
The judge found as fact that Teller and then Bell (along
with her husband) used the part of Area C east of the driveway
from 1988 through 2014, primarily for parking vehicles. He
further found that the vehicles "blocked all use of" Area C
"except when Teller or Bell chose." In the period from 1988 (if
not earlier) through 2014, other than crews occasionally
21 maintaining overhead wires, "no one used [Area C] except for
Teller, Bell, and their guests and invitees." Although the
judge acknowledged that these uses "were varied in their nature
and extent," he also recognized that "continuous" use does not
require "constant" use. See Bodfish, 105 Mass. at 319. The
judge further found that from 2015 through 2019, the Walstons
cleared, regraded, and planted a lawn in Area C (including its
eastern portion, as shown by photographs admitted in evidence).
They used the lawn primarily for recreation.
We have carefully reviewed the evidence and North12's
challenges to the judge's findings on this issue and conclude
that, with one minor exception, those findings are not clearly
erroneous.18 We also conclude that the findings warranted the
judge's determination that the Walstons, by their actions tacked
together with those of Teller and Bell, own the entirety of Area
C by adverse possession, including its eastern portion.
b. Area B. The Walstons claim that they also acquired
Area B by adverse possession and that the judge erred in ruling
18North12 challenges the judge's finding that, during a period when Bell operated a taxi service from lot 1, "[t]he taxis would often park in Area C, including portions of Area C east of the [d]riveway." Although the judge could reasonably infer that the taxis were parked somewhere in Area C, we agree with North12 that there was no evidence specifically supporting the finding of parking in Area C's eastern portion. That finding was not, however, essential to the judge's ruling regarding adverse possession of that eastern portion.
22 otherwise. The judge ruled that "[w]hat distinguishes their
claims to the two Areas is the extent of the proof of adverse
use." He found that "Teller and Bell didn't park vehicles in
Area B." Indeed, "[t]he Walstons failed to prove that Teller
and Bell made any continuous use of Area B." After a careful
review of the evidence, including in particular the many aerial
photographs showing the presence or absence of parked vehicles,
we conclude that the judge's findings were not clearly
erroneous.19 We therefore do not disturb his ruling that the
Walstons did not acquire title to Area B by adverse possession.20
5. Area A; derelict fee statute. North12 challenges the
judge's ruling that the Walstons, when they purchased MS Way in
2020 from Carroll's heirs, thereby also acquired the fee in the
abutting Area A,21 by operation of the derelict fee statute,
G. L. c. 183, § 58. North12 argues that the ruling was
19The judge's placement of the line between Areas C and B, see supra note 17, appears to correspond to the easternmost extent of Bell's regular parking of vehicles -- specifically, the eastern end of a large recreational vehicle, owned by Bell's then-husband, that is visible in numerous aerial photographs.
20 We thus pass over the point that, as with Area A as discussed infra, the Walstons' complaint appears not to have asserted any adverse possession claim to that portion of Area B lying to the east of the part of North Street that abutted lot 1, i.e., that portion of Area B lying immediately south of Area A. 21 The judge defined Area A as "that part of [North Street]
that abuts the MS Way to the south, to the midpoint of [North Street]."
23 procedurally improper, because the Walstons never asserted any
claim to own Area A under that statute; instead, North12 asserts
the issue was first identified and decided by the judge after
trial, without affording the parties a chance to be heard. We
agree with North12 on this point and thus need not reach
North12's additional argument that the judge misapplied the
derelict fee statute.
As North12 argues, the operative version of the Walstons'
four-count complaint did not assert any claim of ownership of
Area A. That complaint asserted an adverse possession claim
only as to North Street "along the southerly boundary of the
Walston Property," which the complaint variously defined as 19
North Street or as lot 1. Area A does not lie in that part of
North Street along the southerly boundary of the "Walston
Property" as so defined; rather, area A lies farther east, along
the southerly boundary of MS Way.22 The quiet title claim,
insofar as it concerned North Street, was similarly limited.
And the trespass and declaratory judgment claims asserted the
Walstons' right to use the right of way over North Street, which
22The Walstons filed their initial complaint and first and second amended complaints before, and without alleging that, they owned the MS Way. Their third through sixth amended complaints alleged ownership of the MS Way but did not change their definition of the "Walston Property" or otherwise assert ownership of Area A as it abutted the MS Way.
24 included what the judge later labeled Area A, but did not assert
ownership of the fee in Area A itself.
The Walstons nevertheless argue that ownership of Area A
was encompassed in one of the issues that North12 itself
identified for trial in the parties' joint pretrial memorandum.23
We are not persuaded. The issue North12 identified was whether
the Walstons or their predecessors in interest had "abandoned
and/or relinquished any interest in, or right to pass and repass
over, portions of North Street" (emphases added). Although
ownership of Area A would constitute an interest in a portion of
North Street -- and although one cannot abandon or relinquish
what one does not own -- the Walstons could not have acquired
ownership of Area A (if at all) by operation of the derelict fee
statute until they acquired ownership of MS Way from Carroll's
heirs, which was in 2020. By that point, North12's predecessors
in interest had already blocked the Walstons' access to Area A
(among other areas) by erecting a fence along its northern edge
and across North Street.
At no point in this case was there any claim that the
Walstons, by the time of trial in 2024, had abandoned or
relinquished a fee interest that they did not even arguably
23The Walstons themselves, in their section of the joint pretrial memorandum, did not identify ownership of Area A as an issue for trial. Nor did their pretrial brief.
25 acquire until 2020, after access to the area was blocked and
after this litigation was commenced. The statement in the
pretrial memorandum thus cannot have been intended to and would
not have been understood as putting in issue the ownership of
Area A by virtue of the derelict fee statute. And we see
nothing in the trial transcript, including the parties' closing
arguments, that mentions the issue or the derelict fee statute.
As this court stated in Messina v. Scheft, 20 Mass. App.
Ct. 945, 945 (1985):
"Serious problems may be created whenever a judge bases a decision on an issue that is not before the court. . . . We are not stating that a judge at a bench trial is held to deciding only those issues raised by the parties. We recognize that there will be instances where a judge may glimpse an issue not perceived by the parties. On those occasions, the course that the judge should follow is to notify counsel of his concerns and permit counsel to present evidence on the question which the judge perceives to be dispositive."
The same principle applies even if an issue first identified by
a judge is one of law that requires no additional evidence to
resolve. The parties are entitled to an opportunity to be
heard, commensurate with the significance of the issue raised.
Nothing in this decision prevents the Walstons from now
asserting this claim to Area A.
Conclusion. We agree with the judge's rulings that the
right of substitution reserved in the 1977 deed of lot 1 was
never properly exercised, and that the Walstons own Area C, but
26 not Area B, by adverse possession. We are unable to agree on
this record with the judge's rulings that the Walstons and their
predecessors' right to pass over the eastern section was
extinguished by prescription or that they lost by abandonment
the right to pass over Area B. Those rulings require further
consideration on remand. Finally, the ruling that the Walstons
acquired the fee in Area A by operation of the derelict fee
statute was made without notice to North12 and the Bunns of such
a claim and therefore cannot stand.
Accordingly, so much of the judgment as implements the
rulings that the reserved right of substitution was never
properly exercised, and that the Walstons own Area C, but not
Area B, by adverse possession is affirmed. The judgment is
otherwise vacated and the matter is remanded for further
proceedings consistent with this memorandum and order.
So ordered.
By the Court (Henry, Sacks & Tan, JJ.24),
Clerk
Entered: January 20, 2026.
24 The panelists are listed in order of seniority.