Twenty Bartlett, LLC v. Sgarano

          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] Plaintiff’s 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 Plaintiff’s rights over the entirety of Bartlett Place were extinguished by prescription.

         PRELUDE

         The issues in this case harken back to the words from Robert Frost’s 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? Isn’t it

Where there are cows?

But here there are no cows.

Before I built a wall I’d 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 Monteforte’s 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 mother’s 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 Sgaranos’ 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 Plaintiff’s 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 Plaintiff’s 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 Bartlett’s 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 Bartlett’s 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 Bartlett’s 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 party’s 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 ...