File
Date: July 3, 2018
DECISION AND FINDINGS OF FACT AND RULINGS OF LAW
AFTER A JURY-WAIVED TRIAL
ROSEMARY CONNOLLY, Justice of the Superior Court
Based
upon a view of the disputed area, four days of trial
testimony, and after consideration of twenty-one trial
exhibits, this Court now makes the following findings of fact
and rulings of law. After careful examination and weighing of
the evidence this Court concludes that the private way known
as Bartlett Place, is, as it was on the 1887 F.O. Whitney
plan, a way that runs from Salem Street (easterly) where it
takes a sharp left turn, (southerly), and then ends where it
intersects what was once North Margin Street, and is now
called Wiget Street.[2] Plaintiffâs deed granted him a right
of way over all of Bartlett Place. This, the Court finds,
includes the disputed area, more specifically that portion of
Bartlett Place where it turns southerly and ends where it
intersects Wiget Street (the "disputed area"). The
disputed area is bounded by what is explained infra
as the "Wiget Gate" at one end and the
"Bartlett Fence" on the other. The Court finds in
favor of the Plaintiff on Count I & V of its Amended
Complaint and further finds that the Defendants have not met
their burden to prove their affirmative defenses that the
Plaintiff abandoned the easement, or, alternatively, that the
Plaintiffâs rights over the entirety of Bartlett Place were
extinguished by prescription.
PRELUDE
The
issues in this case harken back to the words from Robert
Frostâs great poem, "Mending Walls." With great
respect to the poet, and taking a bit of poetic license here,
in the middle section of the poem, as the narrator is talking
with his neighbor about the need for a wall, the narrator
recalls that:
He only says, "Good fences make good neighbors."
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
Why do they make good neighbors? Isnât it
Where there are cows?
But here there are no cows.
Before I built a wall Iâd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
And so
it is here, are the Wiget Gate and the Bartlett Fence meant
to wall in or wall out; and does the Plaintiff, 20 Bartlett
Place, have the right to access all of Bartlett Place,
including the disputed area between the Wiget Gate and the
fence across Bartlett Place? Based on the evidence presented
the Court concludes that the Wiget Gate and Bartlett Fence
were meant to wall out the public, not the Plaintiff.
FINDINGS
OF FACT
The
following facts have been found by the Court, based on a fair
preponderance of the credible evidence presented at trial, or
they are the facts as stipulated to by the parties.
A. THE
PARTIES
Nestled
into a compact footprint in the North End of Boston, is a
private way called Bartlett Place. It is an area where these
parties, and their predecessors in title, have lived and
worked for generations. The deeds for each of the three
properties involved in this suit describe the respective
properties as being bounded by "Bartlett Place."
The parties agree that Bartlett Place is a private way in the
North End. They agree that Bartlett Place is bounded by Salem
Street and the passageway that intersects Cooper Street in
the North End. However, they dispute whether Bartlett Place
is also bounded by what was once North Margin Street, and now
called Wiget Street. The answer to that question is yes, and
will determine the rights of the parties now engaged in this
litigation.
1. 20
Bartlett Place
The
Plaintiff is the owner of record of the real property located
at 20 Bartlett Place, (North End) Boston, Massachusetts
("20 Bartlett"). Today it is a residential building
with several apartments. It is now an investment property
managed by Ralph Ianuzzi on behalf the Limited Liability
Company (LLC) his son set up after purchasing the property in
2012.
The
Court also heard testimony from Louis Monteforte, a witness
with historic ties to the neighborhood and 20 Bartlett
Place.[3] He lived at that address as a young
boy in the 1940s when his grandfather, Charlie Balliro, was
the owner of 20 Bartlett and he ran his pushcart business
from that location. In the 1943-1947 time period Louis
Monteforteâs parents were tenants and then subsequently, in
the 1970s, his father bought the building, making
improvements to it. Additionally, in the 1970s his father
operated a restaurant at the adjacent property, 8-10 Bartlett
Place, and Monteforte worked in the restaurant. From the
1940s until 2012, when his motherâs estate sold the property,
Louis Monteforte lived, worked and visited the 20 Bartlett
Street location.
2. 19
Wiget Street Condominium Trust
The
Defendant, 19 Wiget Street Condominium Trust (the
"Condominium Trust or 19 Wiget"), consists of the
real property located at 19 Wiget Street, (North End) Boston,
Massachusetts ("19 Wiget"). The 19 Wiget
Condominium consists of one building containing twenty-five
(25) residential Units. The Master Deed for 19 Wiget was
recorded in 1989.[4] Previously 19 Wiget had been used as a
stable and later as a furniture warehouse before being
converted to residential condominium units.
3. 13
Wiget, L.L.C.
13
Wiget Street is now owned by the recently added Defendant in
this suit, 13 Wiget, LLC.[5] Prior to February of 2018, 13 Wiget
Street was the home to the Defendants, the Sgaranos and their
parents and at one time, their grandparents. Joseph S.
Sgarano testified that he lived at an apartment at 13 Wiget
from January 8, 1947 until 1994. Even after moving away in
1994, he frequently came to the property to care for his
mother, Bettina, who still lived in one of the apartments at
that address. Joseph Sgaranosâ mother continued to reside at
that location until the Sgaranos sold the property on
February 16, 2018 to 13 Wiget, LLC.
B.
RIGHTS TO BARTLETT PLACE AND THE PASSAGEWAY TO COOPER STREET
As
referenced above, in each of the deeds for these properties,
20 Bartlett Place, 19 Wiget Street and 13 Wiget Street, their
respective property descriptions state that they have
frontage on Bartlett Place. These descriptions and deeds are
examined below.
1. 20
Bartlett Street
The
Plaintiffâs Deed (Ex. 11) describes 20 Bartlett, in part, as
"[c]ontaining 787 square feet, more or less. Together
with a right of way through said Bartlett Place and the
passageway leading therefrom to Cooper Street, all as shown
on said plan." (Emphasis added.) "[S]aid
plan" as referenced in Plaintiffâs Deed, is "a plan
made by Frank O. Whitney, dated May 14, 1887, recorded with
the Suffolk County Registry of Deeds in Book 1771 End
..." (hereinafter the "1887 Plan"). That plan,
is critical to understanding where Bartlett Place is, and
was, situated.[6]
The
current property description for 20 Bartlett had its origins
in the 1887 Bartlett to Baker deed, (Ex. 1) when the
properties known today as 20 Bartlett and 19 Wiget,
respectively, were all under common ownership in John J.
Bartlett, Eliza B. Seymour and Ada J. Seymour.[7] The parcels
remained in common ownership when they were deeded, along
with other land, to Seth R. Baker by a deed dated May 10,
1887, which was recorded in the Registry at Book 1771, Page
137. (Ex. 1.) Baker then was the common owner of 20 Bartlett
and 19 Wiget until he conveyed 20 Bartlett.
Later
in 1887, Baker deeded 20 Bartlett Place, separate from the
other parcels, to Domenico Leverone in a deed dated October
26, 1887, which was recorded in the Registry at Book 1795,
Page 433. (Ex. 9.) In the deed to Leverone, the conveyed
parcel was described, in relevant part, as "bounded
north easterly on Bartlett Place fifty-seven and eighty
hundredths (57.80) feet, northerly on said Bartlett Place
twelve (12) feet together with a right of way through said
Bartlett Place/and the passageway leading therefrom to Cooper
Street all as shown on said [1887]
plan." (Emphasis added.) The property
description for 20 Bartlett Place has remained unchanged over
the last hundred years and the contemporary deeds now contain
the sentence: "together with a right of way through said
Bartlett Place and the passageway leading therefrom to Cooper
Street, all as shown on said [1887] plan." Only the back
slash ("/") from the 1887 deed from Baker to
Leverone conveying 20 Bartlett is missing in the post 1887
deeds introduced into evidence.
2. 19
Wiget Street
As
noted, before the 1887 deed to Leverone, 20 Bartlett Place
and 19 Wiget were in common ownership and the grantor, Baker,
conveyed the right of way over Bartlett Place and the
passageway leading therefrom to Cooper Street. After the 1887
conveyance of 20 Bartlett Place, the chains of title for
these two properties diverged. At some unspecified time
before 1928, based on the record before the Court, 13 Wiget
and 19 Wiget were in common ownership. The deed dated October
25, 1928 (Ex. 4), reveals that 19 Wiget Street and 13 Wiget
Street were held in common ownership by Barstow who conveyed
these parcels, and others, to Andolino. (Ex. 4.) The deed
refers to a "second parcel," comprised of "21,
19 and 17 (Wiget) and a stable lot in the rear all shown as a
place by F.O. Whitney dated May 14, 1887." This parcel
is described as being on the northeast corner of North Margin
and Wiget Streets extending through said Bartlett
Place." (Ex. 4.)[8] The deed, dated October 25, 1928 (Ex.
4), references "Bartlett Place" as a boundary for
both 19 Wiget Street and 13 Wiget Street and expressly
references the "plan by F.O. Whitney dated May 14,
1887." (Ex. 4.)
19
Wiget Street, now owned by the Condominium Trust, describe
their property as bounded "Easterly by Bartlett
Place." See Master Deed, dated January 9, 1989, and
recorded in the Registry at Book 15298, Page 270. (Ex. 7 pg.
15298, 291.) The same Master Deed also states that the title
to 19 Wiget Street is "subject to conditions, easements,
restrictions or leases of record, insofar as the same are now
in force and applicable."
3. 13
Wiget Street
Unlike,
20 Bartlett and 19 Wiget, there was no one period of time
where 13 Wiget had common ownership with both 20 Bartlett
Place and 19 Wiget Street. However, as referenced, there was
a period of time, before 1928, where 13 Wiget and 19 Wiget
had common ownership. (Ex. 4.) The 1928 deed described 13
Wiget Street as bounded by Bartlett Place and to North by
land: "formerly of Bartlett, late of Domenico
Leverone." That deed also states that the other parcels
involved in the transaction, including 21, 19 and 17 Wiget
Street extended through "said Bartlett Place" and
specifically referenced the F.O. Whitney plan of 1887. (Ex. 2
and Ex. 18.)
All the
deeds relating to 13 Wiget Street presented at trial,
including the most recent deed for 13 Wiget, LLC,
consistently refer to Bartlett Place as a boundary to 13
Wiget. The deeds state that 13 Wiget is "... situated on
the northeasterly corner of Wiget Street and Bartlett Place
and bounded westerly by Bartlett Place ..."
C. WHAT
CONSTITUTES "BARTLETT PLACE AND THE PASSAGEWAY"
The
deeds for these properties confirm that all three are bounded
by "Bartlett Place."[9] Walking the length of
Bartlett Place, during the view, and also after examining the
footprint and layout of Bartlett Place on the F.O. Whitney
Plan, support the conclusion that Bartlett Place is an
"L"-shaped private way running from Salem Street,
past 8-10 Bartlett Place and 20 Bartlett Place to what is
almost a dead end, just along an exterior wall and door for
19 Wiget Street (formerly labeled as "Stable" in
Ex. 2), when it then makes a sharp, 90 degree, turn towards
Wiget Street and ends at Wiget, bounded on either side by 13
Wiget and 19 Wiget. The 1887 Whitney Plan identifies Bartlett
Place as an L-shaped way running from North Margin Street
(which is now known as Wiget Street) to an unlabeled road
that the parties agree is Salem Street. (Adddendum
A.)[10] As the Whitney plan reveals, and the
descriptions in the deeds for each of these properties
substantiate, Bartlett Place runs the length of the
"L" from Salem Street till it ends at the
intersection of Wiget Street. The Whitney Plan expressly
labeled the section of the way from Salem Street running past
8-10 Bartlett and 20 Bartlett until it turns southerly as
"Place" on the plan and then labeled the section
after the way turns southerly heading towards Wiget Street as
"Bartlett." When reading the plan, if you start at
the bottom of the plan, you see the name "Bartlett"
on the section adjacent to 19 Wiget and 13 Wiget. Then you
must look over to the right of the plan, as the way bends
towards the outlet street, Salem Street, to see it is labeled
as "place." In other words the street outside 20
Bartlettâs front door is labeled as "place" on the
Whitney Plan and the area to the left and behind 20 Bartlett
Place is labeled as "Bartlett." The manner in which
Whitney drew and labeled "Bartlett Place" on his
recorded plan is support for the conclusion that the entire
length of the 90° angled way is all properly deemed
"Bartlett Place."
The
parties do not dispute 20 Bartlettâs rights along what the
Court will refer to as the "stem" of Bartlett
Place, running from Salem Street to 19 Wiget just before it
turns towards Wiget, or what is labeled on the Whitney plan
as "place." The parties do, however, dispute 20
Bartlettâs right, as of this date, to access that section of
Bartlett Place from where the stem makes the sharp 90°
turn until it intersects at Wiget Street, between 13 Wiget
and 19 Wiget. The area behind 20 Bartlett and 13 Wiget,
bounded also by 19 Wiget, and enclosed by the Wiget Gate at
one end and the Bartlett Fence that runs across the way and
attaches at 20 Bartlett and 19 Wiget, this entire enclosed
area is referred to throughout this decision as the
"disputed area."
D.
HISTORICAL FEATURES AND ACCESS ON THE DISPUTED AREA
There
has historically been a locked gate across Bartlett Place
where it intersects with Wiget Street ("Wiget
Gate"), and there has also been fixed fence across
Bartlett Place adjacent to 20 Bartlett Place and 19 Wiget.
("Bartlett Fence.") The Wiget Gate and the Bartlett
Fence are of longstanding duration. Gates and fences have
existed at these locations for as long as anyone can
remember. They have been in place prior to any partyâs
interest in 20 Bartlett Place, 13 Wiget Street, or 19 Wiget
Street. No one could say who originally installed them, or
when they were first erected. Based the testimony from Mr.
Monteforte and Mr. Sgarano, both of whom had knowledge of the
use of the area from the late 1940s till today, there has
always been a gate and a fence across Bartlett Place. (Wiget
Gate and Bartlett Fence, respectively.) The fence and gate
walled off and enclosed the disputed area. They have been
replaced over the years, but the Wiget Gate and the Bartlett
Fence have remained in the same location for as long as Mr.
Sgarano can remember. They are in the same location today.
The placement of the Wiget Gate and Bartlett Fence does not
prevent the abutters from accessing the disputed area by foot
from the back or side of their buildings.
The
disputed area of Bartlett Place has always been blocked at
both ends. A chain-link fence that swung open like a gate,
which was secured by a padlock, was located at the far
southerly end of Bartlett Place immediately adjacent to Wiget
Street. And, at the other end there was a fixed fence located
at the northerly edge of Bartlett Place. For much of the time
since the late 1940s the Sgarano family has had access to the
key to the Wiget Gate. However, as Mr. Sgarano testified, he
has never denied ...