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Glenn v. Poole

Appeals Court of Massachusetts, Essex

April 14, 1981, Argued ; July 24, 1981, Decided

No Number in Original


 [*292]   [**1031]  As is often the case with easements, the governing principles are easier to state than to apply. So, for example, it is familiar law that ] a right of way may be acquired by prescription through twenty years of uninterrupted, open,  [***2]  notorious and  [**1032]  adverse use. Nocera v. DeFeo, 340 Mass. 783 (1959). Ryan v. Stavros, 348 Mass. 251, 263 (1964). G. L. c. 187, § 2. And the extent of the easement so obtained is fixed by the use through which it was created. Baldwin v. Boston & Me. R.R., 181 Mass. 166, 168 (1902). Lawless v. Trumbull, 343 Mass. 561, 562-563 (1962). Restatement of Property § 477 (1944). See Dunham v. Dodge,  [*293]  235 Mass. 367, 372 (1920). Yet, the use made during the prescriptive period does not fix the scope of the easement eternally. See Lawless v. Trumbull, supra at 563. It may change over time, Restatement of Property § 479, Comment a (1944), and uses satisfying the new needs are permissible, id., "[b]ut the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use." Lawless v. Trumbull, supra at 563. See also Hodgkins v. Bianchini, 323 Mass. 169, 173 (1948), which holds that once an easement is created, every right necessary for its enjoyment is included by implication.

With these principles in mind we turn to the facts found by the Land Court [***3]  judge.  The proceeding was one to register and confirm title under G. L. c. 185, § 1, in which the petitioner, Glenn, sought to eliminate entirely roads shown on the plan filed with the registration petition and, in the alternative, to establish that the use being made by the Poole family of the road called the "Gravel Road" constituted an overload of that easement. ] Facts found by a Land Court judge in registration proceedings shall not be disturbed by us if warranted on any view of the evidence and all reasonable inferences therefrom.  Lyon v. Parkinson, 330 Mass. 374, 375 (1953). Otis Power Co. v. Wolin, 340 Mass. 391, 395-396 (1960). Norton v. West, 8 Mass. App. Ct. 348, 350 (1979). Daley v. Swampscott, 11 Mass. App. Ct. 822, 823, 830 (1981).

Glenn's land is a triangular parcel of 22.681 acres, "more or less," in Rockport. The base of the triangle bounds along the northerly side of Thatcher Road, a well traveled public street. Two right of way easements were originally in dispute: the "Gravel Road," which runs fairly directly from Thatcher Road in a northeasterly direction to the Poole property; and the "Wood Road," which, as shown on the filed [***4]  plan, runs in a more meandering fashion from the easterly corner of Glenn's property at a point on Thatcher Road and eventually links up with the Gravel Road. As to the Wood Road, the judge determined that no prescriptive easement had developed, and only the status of the Gravel  [*294]  Road is the subject of contention on appeal. Three generations of Pooles, the Land Court judge found, had used the Gravel Road from early in this century travelling back and forth from their property, 2 particularly to haul out wood. Those hauling operations were first conducted by horsedrawn wagon and, beginning in 1920, by truck. For a period of time the Pooles also operated a gravel pit and moved gravel to purchasers over the Gravel Road.

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12 Mass. App. Ct. 292 *; 423 N.E.2d 1030 **; 1981 Mass. App. LEXIS 1164 ***


Prior History:  [***1]  Petition filed in the Land Court on November 9, 1975.

The case was heard by Randall, J.

Disposition: Decision affirmed.


Gravel, easement, prescriptive, variance, repair, street, trucks, right of way, adverse use, surface, travel

Real Property Law, Easements, Easement Creation, Easement by Prescription, Adverse Possession, General Overview, Encumbrances, Limited Use Rights, Civil Procedure, Appeals, Standards of Review, Termination of Easements, Transportation Law, Bridges & Roads, Easements