Wilson v. Ebacher

Massachusetts Appeals Court

Wilson v. Ebacher

324 N.E.2d 907, 3 Mass. App. Ct. 721, 1975 Mass. App. LEXIS 738

DecidedMarch 13, 1975

StatusPublished

This text of 324 N.E.2d 907 (Wilson v. Ebacher) 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.

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Wilson v. Ebacher, 324 N.E.2d 907, 3 Mass. App. Ct. 721, 1975 Mass. App. LEXIS 738 (Mass. Ct. App. 1975).

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Opinion

The respondent, Laurie Ebacher, in a proceeding for registration of the petitioners’ land (the locus), appeals from a decision of the Land Court that the petitioners were entitled to the registration of an easement appurtenant to the locus and over the respondent’s land. The court found that “the petitioners have sustained their burden of proof that they... have acquired a right of way by prescription to travel over the aforementioned way [“the unimproved ‘Road to the Birches’ which passes over the land now belonging to the respondent, Laurie Ebacher, onto Woods Road on the locus”] for all purposes of a public way over the unimproved and private portion of ‘Road to the Birches’ to the locus....” 1. The respondent’s attack on this finding, as unwarranted by the evidence, fails because the decision does not purport to set out all the evidence on which the finding is based; and it cannot be said from anything appearing in the decision that the finding is unjustified as a matter of law. Nor can it be said that this finding is inconsistent with other findings set out in the decision. Only such questions, in effect questions of law, are open on appeal; and our conclusion is governed by such cases as Boston v. Cable, 306 Mass. 124, 126 (1940); Holcombe v. Hopkins, 314 Mass. 113, 116 (1943); Mulcahy v. McGinn, 356 Mass. 717, 717-718 (1969); Green v. Chelsea, 358 Mass. 799, 799-800 (1970). 2. The respondent contends that the ultimate order, providing that the locus be registered “with the benefit of said right of way for all purposes of a public way” is too broad because “all purposes of a public way” may include uses unconnected with travel. We do not determine the scope of the words “public way.” See Crullen v. Edison Elec. Illuminating Co. of Boston, 254 Mass. 93, 94-95 (1925). Compare Nantucket Conservation Foundation, Inc. v. Russell Management, Inc. 2 Mass. App. Ct. 868, 869 (1974). It appears, however, that the scope of the easement is not clear from the decision. Accordingly, the Land Court shall modify the decision to clarify the scope of the [722]*722petitioners’ easement and may hold further hearings for that purpose. See Swensen v. Marino, 306 Mass. 582, 586-587 (1940). Compare Marden v. Mallard Decoy Club, Inc. 361 Mass. 105, 107-108 (1972). The case is therefore remanded to the Land Court.

Thomas B. Shea for the respondent. Francis J. Ulman for the petitioners.

So ordered.

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The respondent, Laurie Ebacher, in a proceeding for registration of the petitioners’ land (the locus), appeals from a decision of the Land Court that the petitioners were entitled to the registration of an easement appurtenant to the locus and over the respondent’s land. The court found that “the petitioners have sustained their burden of proof that they... have acquired a right of way by prescription to travel over the aforementioned way [“the unimproved ‘Road to the Birches’ which passes over the land now belonging to the respondent, Laurie Ebacher, onto Woods Road on the locus”] for all purposes of a public way over the unimproved and private portion of ‘Road to the Birches’ to the locus....” 1. The respondent’s attack on this finding, as unwarranted by the evidence, fails because the decision does not purport to set out all the evidence on which the finding is based; and it cannot be said from anything appearing in the decision that the finding is unjustified as a matter of law. Nor can it be said that this finding is inconsistent with other findings set out in the decision. Only such questions, in effect questions of law, are open on appeal; and our conclusion is governed by such cases as Boston v. Cable, 306 Mass. 124, 126 (1940); Holcombe v. Hopkins, 314 Mass. 113, 116 (1943); Mulcahy v. McGinn, 356 Mass. 717, 717-718 (1969); Green v. Chelsea, 358 Mass. 799, 799-800 (1970). 2. The respondent contends that the ultimate order, providing that the locus be registered “with the benefit of said right of way for all purposes of a public way” is too broad because “all purposes of a public way” may include uses unconnected with travel. We do not determine the scope of the words “public way.” See Crullen v. Edison Elec. Illuminating Co. of Boston, 254 Mass. 93, 94-95 (1925). Compare Nantucket Conservation Foundation, Inc. v. Russell Management, Inc. 2 Mass. App. Ct. 868, 869 (1974). It appears, however, that the scope of the easement is not clear from the decision. Accordingly, the Land Court shall modify the decision to clarify the scope of the [722]*722petitioners’ easement and may hold further hearings for that purpose. See Swensen v. Marino, 306 Mass. 582, 586-587 (1940). Compare Marden v. Mallard Decoy Club, Inc. 361 Mass. 105, 107-108 (1972). The case is therefore remanded to the Land Court.

Thomas B. Shea for the respondent. Francis J. Ulman for the petitioners.

So ordered.

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324 N.E.2d 907, 3 Mass. App. Ct. 721, 1975 Mass. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-ebacher-massappct-1975.

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