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15-P-894                                            Appeals Court

    GEORGE ATHANASIOU & another1 vs. BOARD OF SELECTMEN OF
                     WESTHAMPTON & another.2


                              No. 15-P-894.

         Suffolk.     January 12, 2017. - August 22, 2017.

               Present:   Vuono, Milkey, & Henry, JJ.


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.




    1   Louanne Athanasiou.

    2   Town of Westhampton.
                                                                    2


     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




     3 The plaintiffs commenced this action by filing a complaint
in the Land Court seeking, among other things, a declaration
that they are the rightful fee title owners of the disputed
area. The defendants counterclaimed, asserting that the town
had acquired a prescriptive easement over the disputed area.
The defendants subsequently filed a motion for summary judgment
after which the plaintiffs cross-moved for summary judgment on
the defendants' counterclaim. Ultimately, summary judgment
entered in favor of the plaintiffs on their claim of ownership
and in favor of the defendants on their counterclaim. The
defendants have not cross-appealed; therefore, the issue of
ownership is not before us.
                                                                        3


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




       A "swale" is "an elongated depression in land that is at
       4

least seasonally wet or marshy, is usu[ally] heavily vegetated,
and is normally without flowing water." Webster's Third New
International Dictionary 2305 (2002).

       5   Occasionally a neighboring farmer mows the grass.
                                                                     4


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 road safety, for
    aesthetic purposes (i.e., mowing), and for purposes of
    drainage."

    Discussion.     Summary judgment is appropriate where "all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."    Augat, Inc. v.

Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).    "In reviewing

a grant of summary judgment, 'we assess the record de novo and

take the facts, together with all reasonable inferences to be

drawn from them, in the light most favorable to the nonmoving

party.'"    Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-

371 (2015), quoting from Bulwer v. Mount Auburn Hosp., 86 Mass.

App. Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016).

    To acquire a prescriptive easement over "land located

within its limits for a specific public purpose," a municipality

must demonstrate (1) "unexplained use for more than twenty years
                                                                    5


which is open, continuous, and notorious," and (2) "proof

sufficient to satisfy a trier of fact that the municipality has

exercised dominion and control over the land in its corporate

capacity through authorized acts of its employees, agents or

representatives to conduct or maintain a public use thereon for

the general benefit of its inhabitants."    Daley v. Swampscott,

11 Mass. App. Ct. 822, 827, 829 (1981).

     The plaintiffs contend that summary judgment was improper

because there is a dispute whether the public's use of the

disputed area for more than twenty years was sporadic or

continuous.   See id. at 827.   Moreover, the plaintiffs contend,

there is a genuine dispute whether the town's maintenance of the

disputed area was sufficient to establish "dominion and control"

by corporate action.6   Id. at 829.

     We agree with the judge's determination that the town has

acquired prescriptive rights over the disputed area.    The

defendants' summary judgment materials establish that the town's

and the public's "adverse use [of the disputed area was]

continuous and uninterrupted for a twenty-year period."     White

v. Hartigan, 464 Mass. 400, 417 (2013).    Nothing in the record


     6 The plaintiffs also argue that the judge's holding
constitutes a taking by the town for which they are entitled to
compensation. We do not reach this issue because it was not
before the judge, and because the claim is the subject of a
separate action pending in the Superior Court.
                                                                   6


supports an inference that the town attempted to conceal its use

and maintenance of the disputed area.     See Boothroyd v. Bogartz,

68 Mass. App. Ct. 40, 44 (2007).     Rather, the facts establish

that the plaintiffs and their predecessors in title had "actual

knowledge of [the town's and the public's] adverse use of the

property."   White, supra.   The judge correctly concluded that

the defendants had satisfied their burden of demonstrating the

absence of a triable issue whether the town's use of the

disputed area was open, notorious, and "continued

uninterruptedly for twenty years."     G. L. c. 187, § 2.7

    We further conclude, as did the judge, that the undisputed

facts are "sufficient to satisfy a trier of fact that [the town]

has exercised dominion and control over the land in its

corporate capacity through authorized acts of its employees

. . . to conduct or maintain a public use thereon for the

general benefit of its inhabitants."     Daley, supra.   The

deposition testimony of the town's highway superintendent, David


    7  The plaintiffs have offered no countervailing evidence to
support the allegation that the town's use of the disputed area
was permissive. See Daley, supra at 827. In their answers to
the defendants' interrogatories, the plaintiffs did allege that
Louanne's aunt, Carolyn Fuller Coggins, "has a strong memory of
her grandmother . . . telling her" that the triangle belonged to
the family and that she had given "school kids" permission to
play a special game on it. There is no affidavit from Coggins
in the record and even the plaintiffs themselves refer to this
incident as a "single instance of permissive use." As such,
this evidence is not sufficient to show that there is a genuine
issue for trial. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).
                                                                    7


Blakesley, provides ample "proof that the municipality

authorized its employees to conduct activities on the property."

Id. at 828.   Blakesley testified that he has been employed by

the town for twenty-seven years.   He has witnessed the way being

used by the public, he personally has maintained the disputed

area, and he has both observed and ordered other town highway

department employees to do the same.   Blakesley and other

employees have plowed, sanded, oiled, and graveled the way.

They have patched potholes on the way, removed trees and fallen

limbs from the triangle and the way, and cleared sediments from

the swale on the triangle.

    The case of Rivers v. Warwick, 37 Mass. App. Ct. 593, 596-

597 (1994), upon which the plaintiffs rely, is distinguishable.

We concluded in that case that evidence of occasional plowing,

grading, and repairing by the town of roads by which the

plaintiffs accessed their summer home was insufficient to

establish that those roads were made public by prescription.

Similarly, in McLaughlin v. Marblehead, 68 Mass. App. Ct. 490,

500 (2007), we concluded that the town had not satisfied its

burden of showing corporate action where "[i]t performed no

construction, maintenance, or work on [the disputed lane] during

the requisite period."   Here, by contrast, members of this rural

community have used the disputed area, and the town has
                                                                   8


maintained the area to provide for such use, continuously for

more than twenty years.

    The plaintiffs dispute some portions of Blakesley's

testimony.    They claim that summary judgment is precluded in the

absence of (1) a traffic study to demonstrate continuous,

uninterrupted public use of the way, and (2) a town vote

authorizing the expenditure of town funds to maintain the

disputed area.   We are not persuaded.   The plaintiffs'

submissions contain no admissible evidence to rebut Blakesley's

testimony, and the absence of a traffic study or a town vote

does not create a genuine issue for trial.    In order to defeat

summary judgment, the plaintiffs are required to "set forth

specific facts showing that there is a genuine issue for trial."

Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).    They have not done

so, and summary judgment properly entered in favor of the

defendants.

                                    Judgment affirmed.
