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Athanasiou v. Board of Selectmen of Westhampton

Appeals Court of Massachusetts, Suffolk

August 22, 2017

GEORGE ATHANASIOU & another [1]
v.
BOARD OF SELECTMEN OF WESTHAMPTON & another. [2]

          Heard: January 12, 2017.

         Adverse Possession and Prescription. Easement. Municipal Corporations, Adverse possession. Way. Real Property, Easement, Adverse possession. Practice, Civil, Summary judgment.

         Civil action commenced in the Land Court Department on May 20, 2013

         The case was heard by Alexander H. Sands, III, J., on motions for summary judgment.

          Harry L. Miles (Michael Pill also present) for the plaintiffs.

          Janelle M. Austin for the defendants.

          Vuono, Milkey, & Henry, JJ.

          VUONO, J.

         The issue in this case is whether the town of Westhampton (town) has acquired an easement by prescription over a triangular parcel of land (triangle) and an abutting roadway (way), together the "disputed area, " owned by the plaintiffs, Louanne and George Athanasiou. On cross motions for summary judgment, [3] a Land Court judge determined that the public's use of the way for a continuous period in excess of twenty years, coupled with the town's maintenance of the disputed area to provide for such public use, was sufficient to establish a prescriptive easement over the disputed area for the benefit of the town and its inhabitants. The plaintiffs appeal.

         Background.

         The following facts are not in dispute. The way is an unnamed, paved roadway that connects North Road and Southampton Road in the rural town. The roads merge at an intersection located at the tip of the triangle, and the way provides a convenient connection between the two roads (known in common parlance as a "cut-through"). The way is wide enough to accommodate traffic in both directions and has been used by the public continuously for more than twenty years. The town, which does not maintain private roads, has maintained the way for public traffic during that time. Once in the early 1990s and again in or about 2005, town employees oiled and graveled the way. The town plows and sands the way approximately twenty times per year. It also patches potholes, clears fallen tree limbs, prunes trees, and collects brush obstructing the way.

         The triangle is an open area of land abutted on its two sides by North Road and Southampton Road and, at its base, by the way. There was no evidence that members of the general public actively use the triangle. However, the town installed a drainage system on the triangle that allows water to drain from North Road, Southampton Road, and the way. The drainage system, which includes a swale located on the triangle, [4] has been cleared and maintained by the town for more than twenty years. In addition, the town has mowed the grounds as needed, [5] it has removed dead trees, and it has planted new trees in the triangle. The town has not assessed taxes on any portion of the disputed area to the plaintiffs or to anyone else.

         On the basis of these uncontroverted facts, the judge determined that the disputed area is subject to the town's prescriptive rights. The judge further concluded that the easement is limited in scope, ruling that the town may

"only . . . make use of the [d]isputed [a]rea in the manner in which they have been used . . .; the [t]own's prescriptive rights shall not include the right to expand upon the roadway or to take actions that would result in an increase in vehicle traffic upon the [w]ay, or to make any other use of the [d]isputed [a]rea other than to maintain same in such a manner as will ensure ...

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