Shaw v. Solari

• Decision Date: 23 July 1979
• Citation: 392 N.E.2d 853,8 Mass.App.Ct. 151
• Parties: Priscilla SHAW v. Frank P. SOLARI et al. 1
• Court: Appeals Court of Massachusetts

Page 853

392 N.E.2d 853 8 Mass.App.Ct. 151 Priscilla SHAW
v.
Frank P. SOLARI et al. ¹ Appeals Court of Massachusetts, Plymouth. Argued March 9, 1979.
Decided July 23, 1979.

Page 854

Harry Terzian, Whitman, for defendants.

Charles J. Hayes, Hanover, for plaintiff.

Before HALE, C. J., and GRANT and PERRETTA, JJ.

PERRETTA, Justice.

The plaintiff, Shaw, commenced this action in the Land Court to determine her rights to land which she claimed by adverse possession through her predecessors in title, the Kingstons, and to restrain Solari,[8 Mass.App.Ct. 152] the defendant, the holder of proper record title to the land, from interfering with her use and enjoyment of that land. The trial judge found that Shaw had established her claim in a thirty-foot wide strip of land abutting her property and running along its entire westerly boundary and that she had this land free from any title or right of Solari. We affirm the judgment.

In 1915 Shaw's land was one of many parcels located in East Bridgewater and owned by C. W. Osborne and A. McCordick; all were shown on a plan recorded with the Plymouth registry of deeds. Her land, parcel 3, was bounded on the east by parcel 4, and both of these lots fronted on Central Street to the south. To the north both lots abutted parcel 10; that lot and parcel 4 ultimately were purchased by Solari. The plan indicated that the land immediately west of parcel 3 was a thirty-foot wide strip, which was designated as "Osborne Avenue" (strip), and which was conveyed to Solari at the time of his purchase in 1949. The southerly portion of this "avenue" is at issue in this case. This strip separated parcel 3 from parcel 2 and ran northerly from Central Street along the westerly boundaries of parcels 3 and 10. ² It is apparent from the plan that the common grantors reserved this strip as a means of access

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from Central Street to the back lots for a time when more of the back land would be subdivided and developed. However, these back parcels [8 Mass.App.Ct. 153] were never developed and remained in their natural state and in common ownership until the time of this action.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1921 John Kingston purchased parcel 3, which was then wooded land. At that time Osborne Avenue had not been marked out or used as any type of access or way to the back land; however, the Kingstons were aware of the planned avenue and of the boundaries of the land, which did not include any portion of the disputed strip. Nonetheless, he cleared his lot as well as the strip and moved a house onto his land. Kingston made specific use of the strip from the time he took title to his land. A portion of this strip, from Central Street to the side door of his house, was used as a driveway from the 1930's to the present. It was always clearly defined as a driveway, first made of gravel and then, in the late 1950's, paved with asphalt. The remainder of the front portion of the strip, from the driveway to the easterly boundary of parcel 2, had been used by...