Proulx v. D'Urso, 60 Mass. App. Ct. 701 (Mass. App. Div. 3/25/2004), 02-P-777.
| Decision Date | 25 March 2004 |
| Docket Number | No. 02-P-777.,02-P-777. |
| Citation | 60 Mass. App. Ct. 701 |
| Parties | JEAN PAUL R. PROULX <I>v.</I> STEVEN J. D'URSO. |
| Court | Massachusetts Appellate Division |
Present: LAURENCE, GREEN, & TRAINOR, JJ.
Easement. Real Property, Easement.
In an action in the Land Court seeking a declaration of the parties' respective rights in a right of way across the plaintiff's property for the benefit of the defendant's property, the judge correctly ruled that the defendant had effectively agreed to the relocation of his easement, where the defendant had not only acquiesced in the plaintiff's acts of blockading and degrading to a state of impassability the original easement, despite the defendant's knowledge of his right to pass and repass over the easement, but where the defendant had affirmatively and willingly participated in the relocation process by further obstructing the original easement, actively improving the alternative right of way for his own benefit, and using that way as his exclusive access to and from his property for a decade. [704-705]
CIVIL ACTION commenced in the Land Court Department on February 19, 1999.
The case was heard by Peter W. Kilborn, C.J.
Michael S. Lalikos for the defendant.
Donald F. Borenstein for the plaintiff.
In 1972, the appellee, Jean Paul R. Proulx, purchased two pieces of property in Boxford (shown as lots 4 and 4.1 on the attached plan). A right of way (shown as the "wood road" on the plan) had been established by deeds in the chain of title for the benefit of easterly adjoining lot 3. Proulx thereafter fenced off the wood road and rendered it impassible from the public way outlet, Lily Pond Road. He improved and used as his access from the public way a "gravel driveway" located east of and roughly parallel to the wood road. By the time the appellant, Steven J. D'Urso, acquired lot 3 in 1990, the wood road was inaccessible to his lot by virtue of the fencing
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