The defendants own and operate cranberry bogs in Rochester and access their properties over the private way at issue, Old Tuck Bog Road (Bog Road). Ronald E. Belrose, individually, and Claire F. Belrose, as trustee of the CJB Realty Trust, owners of properties abutting Bog Road, filed this complaint on May 22, 2007, seeking declaratory judgment with respect to the rights of Old Tuck Cranberry Corp. (Old Tuck) and Ashley Excavating, Inc. (Ashley Excavating), to Bog Road and seeking damages for trespass.
At issue is whether the defendants as to certain lots have deeded or prescriptive rights over Bog Road and if so, whether their use as to those lots has overburdened any such easement. The judge concluded that none of the properties owned by the defendants enjoy deeded rights over Bog Road and that although Old Tuck enjoys prescriptive rights to access portions of its original property for cranberry farming, those rights do not extend to a new bog (bog A12) created on the original property in 2000. The judge further concluded that Scott and Kymberly Ashley have a prescriptive right to use Bog Road to reach their home, but that use of Bog Road by Ashley Excavating to operate an excavating business from the Ashley house lot or Old Tuck's property exceeds the scope of the easement. The judge further found that Ashley Excavating has no prescriptive rights to use Bog Road to access property it purchased in 2003 from Elsie Heleen. We affirm in part and reverse and vacate in part.
The plaintiffs' trespass claim was decided adversely to them and they have not appealed from that portion of the judgment. The plaintiffs have not filed a brief or otherwise participated in this appeal.
Background. We refer the parties to the judge's detailed findings of fact for the factual backdrop of the case and repeat the facts here only as necessary to elucidate our decision.
Deeded easements. At the outset, we note that the judge's finding that none of the defendants enjoy deeded rights is consistent with the opinions of both the expert who testified for the plaintiffs and the expert who testified for the defendants. The experts agreed that when the defendants' predecessors began conveying the lots at issue, they did not own the property where Bog Road meets the public way, High Street. Thus, any rights granted could not have provided a right of way to the public way. The defendants point to no persuasive evidence inconsistent with that opinion.
Even if the “Douglass” deed to a small portion of Old Tuck's property described that property as bound by Bog Road and thereby purported to grant an easement over Bog Road, there was no showing that the Douglass chain had rights over Bog Road to access the public way, any more than Old Tuck's other predecessors had.
The defendants argue that because Claire Belrose, as trustee of the CJB Realty Trust, came into ownership of the portion of Bog Road that meets the public way with knowledge that Old Tuck and others were using Bog Road, we should infer that the defendants have deeded rights. This novel argument is not well developed and we see no basis in the law to infer a deeded easement where a buyer purchases property with knowledge of what could be a permissive or prescriptive use. There was no error in the judge's finding that none of the defendants enjoy deeded easement rights to the public way over Bog Road.
Prescriptive easements. a. Old Tuck. As Old Tuck has failed to make any argument on appeal that it has deeded or prescriptive easement rights over Bog Road to access lots 20 and 21 as shown on assessor's map 14 (map 14), which Old Tuck acquired in 1998, that issue is waived. In addition, the plaintiffs conceded in their complaint and at trial that Old Tuck has a prescriptive easement over Bog Road to access its cranberry bogs, except for bog A12, on lot 11 as shown on assessor's map 12 (map 12) for cranberry farming and associated activities, and has not appealed from the judge's finding that those rights extend as well to lots 10 and 11A as shown on map 12. Collectively, lots 10, 11, and 11A are part of Old Tuck's “original property,” purchased in 1982. The only outstanding issue is whether the judge correctly concluded that Old Tuck's prescriptive easement rights do not extend to bog A12, which is located on a portion of lot 11 and which Old Tuck transformed from a hay field to a cranberry bog in 2000. The judge concluded that because use of bog A12 as a cranberry bog has not been continuous for twenty years, the prescriptive easement does not extend to it. We disagree.
“The extent of an easement depends on the circumstances of its creation. Easements arising by prescription, for example, are fixed in scope by the use through which they are created.” Mugar v. Massachusetts Bay Transp. Authy., 28 Mass.App.Ct. 443, 444 (1990). The use by which the prescriptive easement arises, however, “does not fix the scope of the easement eternally. The use may change over time through normal evolution to satisfy new needs, but the variations cannot be substantial; they must be consistent with the general pattern formed by the adverse use.” Carmel v. Baillargeon, 21 Mass.App.Ct. 426, 430 (1986).
Here, it appears that bog A12 constitutes a small portion of the original property that Old Tuck owned and principally operated as a cranberry bog for well over twenty years. Looking at Old Tuck's use since it acquired the original property in 1982, the creation of bog A12 constituted part of the use that established Old Tuck's easement by prescription. Although the record reflects that during the time bog A12 was being created there may have been heavier than usual truck traffic to haul out excavated materials, the plaintiffs took no legal steps to object to the use at the time and only commenced this action on May 22, 2007.
The judge noted the historic use of the original property for cranberry farming, but did not identify the period of prescription upon which he relied to conclude Old Tuck enjoys an easement by prescription.
Indeed, Ronald Belrose, aware that the price of cranberries had gone down and Scott Ashley had to put some bog in so he could stay competitive, voted to approve the soil permit necessary to create bog A12. Whether Bog Road was temporarily overloaded while bog A12 was being created is not before us.
The record does not reflect that the current maintenance of bog A12 has intensified the use of Bog Road in any meaningful way. In Glenn v. Poole, 12 Mass.App.Ct. 292, 297 (1981), we held that there was no overloading of a prescriptive easement even though the business expanded to back land causing a moderate increase in traffic, because the variation in use was “consistent with the general pattern formed by the adverse use [and] ... [did] not appear to be so substantial as to be unreasonable.” The same is true here. Where the use establishing the prescriptive easement was largely cranberry bog farming, including recreating cranberry bogs that had been long neglected, we cannot conclude that the present use of Bog Road to farm and maintain bog A12 overburdens the prescriptive easement.
b. Ashley Excavating. For many years, there has existed on Old Tuck's original property, a house, to which Scott and Kymberly Ashley took title as tenants by the entirety in 2002. The plaintiffs concede that the Ashleys have a prescriptive easement to access their house. Ashley Excavating, however, was incorporated in 2002. Ashley Excavating performed pit management for Old Tuck on the two lots Old Tuck acquired in 1998 and also performed excavating, grading, and loading sand and gravel from third-party construction jobs. We have no difficulty affirming the judge's conclusion that operation of Ashley Excavating from the Ashleys' house lot or from Old Tuck's property exceeds the scope of the Ashleys' prescriptive easement to access the house and Old Tuck's prescriptive easement to access its original property for cranberry farming. Operation of an excavation company was not a use or similar to a use that created the prescriptive easement.
In 2003, Ashley Excavating purchased from Elsie H. Heleen two parcels of property and although some of that property has frontage on Bog Road, the included Heleen cranberry bog (Heleen bog) does not have frontage on Bog Road and is accessed from the public way via Bog Road and then over the road to the Eldridge cranberry bog. The deed from Heleen contains an express right of way over Bog Road and the road to Eldridge Cranberry Bog, but, as noted above, Ashley Excavating's predecessors had no authority to grant an express easement over Bog Road.
While noting that the complaint does not make any claims challenging Ashley Excavating's right to use Bog Road to access its property acquired from Heleen in 2003, the judge nonetheless noted that Ashley Excavating claims prescriptive rights over Bog Road to access that property. The judge found that because “Ashley Excavating purchased these properties from Heleen in 2003, just four years before Plaintiffs commenced this action; these properties lack the necessary twenty years required to achieve prescriptive rights.” There is evidence in the record, albeit scant, suggesting that the Heleen bog has been in existence at least since about the late 1970s and that the only way to access it from the public way is via Bog Road. See Ryan v. Stavros, 348 Mass. 251, 264–265 (1964) (successive adverse uses may create a prescriptive right). That Ashley Excavating purchased the property in 2003 is not necessarily dispositive of any claim of a prescriptive easement.
The plaintiffs, however, did not raise any issue in the complaint regarding Ashley Excavating's use of Bog Road to access the Heleen Bog or other property Ashley Excavating purchased in 2003 from Heleen. The complaint only mentions Ashley Excavating's use of Old Tuck's property to operate an excavating company. Ronald Belrose, who testified on behalf of the plaintiffs, did not testify that he contests Ashley Excavating's right to use the Way to reach the Heleen Bog or any of the property Ashley Excavating acquired in 2003 from Heleen. There was no motion to amend the complaint to conform to the evidence and we cannot conclude, on this record, that the issue was tried by express or implied consent of the parties. Because it is not clear to us that this issue actually was litigated, we vacate so much of the judgment that concludes that Ashley Excavating has no prescriptive right to access lot 14/15C–3 and lot 14 (as shown on assessors map 13), property it purchased in 2003 from Heleen, via Bog Road.
So much of the judgment as determines that Old Tuck Cranberry Corp.'s prescriptive easement over Old Tuck Bog Road does not include access to bog A12 located on lot 11 for cranberry farming is reversed. So much of the judgment as determines that Ashley Excavating, Inc., has no prescriptive easement over Old Tuck Bog Road to access lot 14/15C–3 and lot 14, which Ashley Excavating, Inc ., purchased from Elsie Heleen in 2003, is vacated. In all other respects the judgment is affirmed.
So ordered.
-------- Notes: