KEVIN T. MCLAUGHLIN v. DUANE R. BONLIE, Trustee, & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-739

KEVIN T. MCLAUGHLIN

vs.

DUANE R. BONLIE, trustee,1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, as trustees of the 590 Condominium Trust

("the trust"), appeal from a judgment of a Superior Court judge

that (1) declared that the property at 183 Bradford Street in

Provincetown, now owned by the plaintiff, Kevin McLaughlin,

enjoys the benefit of a prescriptive easement to pass over a

pathway on the abutting property at 590 Commercial Street, and

(2) enjoined the defendants from interfering with McLaughlin's

use of this easement. The judge found that the prescriptive

easement was established primarily by the actions of one Jimmy

1 Of the 590 Condominium Trust.

2Jane E. Bloom, trustee of the 590 Condominium Trust. Jane
Bloom is deceased.
Majestic, an abutter to the back of 590 Commercial Street and

McLaughlin's predecessor in title, who regularly used the path

beginning as early as 1959 and continuing for well over 20

consecutive years. Majestic used the path to cut through, from

the back of his home at 283 Bradford Street, over to Commercial

Street, from whence he would walk to a shop he owned in another

part of town.

On appeal, the defendants argue that the judge's findings

that a prescriptive easement had been established were both

erroneous and inadequate. In particular, the defendants contend

that the judge failed to make necessary subsidiary factual

findings -- for example, regarding who the owners of 590

Commercial Street were at the time the easement was being

established -- and also failed to address whether Majestic's use

might have been "permitted" by those prior owners. As we

discern no error in the judge's findings and conclusions that

Majestic's use (as well as the use by others) satisfied the

requisite elements to establish a prescriptive easement, we

affirm the judgment of the Superior Court.

Background. 1. The use of the pathway. This case

involves two parcels of land in Provincetown, known as 283

Bradford Street ("283 Bradford") and 590 Commercial Street ("590

Commercial"). 283 Bradford fronts on Bradford Street, and is

presently owned by the plaintiff McLaughlin. 590 Commercial

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fronts on Commercial Street, and contains a condominium managed

by the defendant 590 Condominium Trust, an association of unit

owners. 283 Bradford Street and 590 Commercial Street are

backyard neighbors -- that is, they share a common rear boundary

line. Bonlie, the defendant, is a trustee of the 590

Condominium Trust; the defendant Jane Bloom also served as a

trustee until her death in 2022.

The pathway at issue runs along one side of the 590

Commercial property, and allows persons to travel from the back

of 283 Bradford over the 590 Commercial Street property to

Commercial Street, where there is a gate. The pathway is

approximately fifty feet long and quite narrow, and is made of

wood until it turns into brick near Commercial Street.

The plaintiff McLaughlin proved the prescriptive easement

not through his own actions, but primarily through the actions

of Majestic, who purchased 283 Bradford in 1955 as a joint

tenant. Because Majestic died in 2014, well before trial, the

plaintiff proved Majestic's actions through the testimony of

several witnesses who knew Majestic, and were familiar with the

property and Majestic's use of it over the years.

The key witness was Richard Fowler, an Episcopal clergyman

who met Majestic in 1959 and formed a friendship with him that

lasted until Majestic's death. Fowler testified that he visited

Majestic at least three times a year from 1959 to 2014, usually

3
during the summertime. During these visits Fowler would walk

with Majestic almost daily across the pathway through 590

Commercial (until Majestic became infirm, around 2012), in order

to reach Commercial Street. No one objected to Fowler and

Majestic's use of the path. The trial judge credited Fowler's

testimony, and relied on it.

Fowler's testimony was corroborated, in part, by the

testimony of James McNulty, who moved into 586 Commercial Street

in 1971, at age 9. 586 Commercial Street is the property

adjacent to both 283 Bradford and 590 Commercial; while living

there, McNulty had a direct view of the pathway, through a

window facing 283 Bradford. McNulty lived at 586 Bradford until

1998, with the exception of one year, 1981. He was friendly

with Majestic and Majestic's roommate, a Mr. Simmons; McNulty

was also friendly with the occupant of 590 Commercial, whom he

called "Mary Main."3 As a young boy, McNulty helped Mary Main,

for example, by bringing seaweed from the beach, to spread in

her gardens at 590 Commercial. While living in and around 586

Commercial, McNulty observed Majestic use the pathway "fairly

regular[ly]" to access Commercial Street. McNulty also observed

Mr. Simmons use the pathway on occasion to access the beach.

3 The record is not clear as to whether "Mary Main" is the
same person as Mary Mowery, from whom Eldred Mowery bought 590
Commercial in 1984 or 1985.

4
Furthermore, McNulty saw Jack,4 Majestic's partner, use the

pathway as well, after Jack arrived in the mid-1970s. McNulty

himself used the path, stating that he thought that he had

"implied" permission to do so from Mary Main.

The trial judge also gave "significant weight" to the

testimony of Dorothy Mowery, who moved into 590 Commercial in

1984 or 1985 and lived there until 1992 or 1993. Dorothy

Mowery's husband, Eldred Mowery, bought 590 Commercial from his

ex-wife, Mary Mowery. Dorothy Mowery's testimony was consistent

with Fowler's and McNulty's. She understood the pathway to be

"communal property." She saw Majestic and Simmons use the right

of way, and saw Simmons sweep the way in the evenings.

Majestic died in 2014, and his trust transferred 283

Bradford to James Turner and Tony Sampson, friends of his.

Turner and Sampson in turn sold 283 Bradford to McLaughlin in

August 2014.

2. The dispute. Sometime in 2015, defendant Bonlie

confronted renters from 283 Bradford who were using the pathway.

The renters told Bonlie that McLaughlin had told them they could

use the path. Bonlie asked the renters not to use the path.

The defendants then told McLaughlin by letter that the use of

4 Jack Hannon held title to 283 Bradford as joint tenants
with right of survivorship with Majestic from October 1978 to
August 2001, at which point he sold his interest to Majestic.

5
the path by the renters was trespassing. McLaughlin testified

that the defendants then closed off the pathway by a fence with

a locked gate.

In 2016, McLaughlin filed a complaint in Superior Court

against Bonlie and Bloom as trustees, seeking a declaratory

judgment that his property benefitted from an easement by

prescription over 590 Commercial, and also seeking an injunction

preventing the defendants and unit owners at the 590 Condominium

from interfering with the use of the pathway by McLaughlin and

his tenants.5 The judge conducted a bench trial in October 2022.

In April 2024, the judge issued an order declaring that

McLaughlin acquired a prescriptive easement over the pathway at

590 Commercial. The judge accompanied his order with findings

of fact and rulings of law, which included, inter alia, that

"the use of the walkway located on 590 was continuous and

uninterrupted beginning in 1959, that it was open and notorious,

and that it was adverse to the title holder(s) of 590 Commercial

Street for a period of not less than twenty years beginning in

1959." The judge ruled that the prescriptive easement was

appurtenant to Majestic's property at 283 Bradford, such that

when the property was transferred upon Majestic's death, the

5 Defendant Bonlie was also named as a defendant in his
individual capacity, along with Noe Reyes d/b/a Reyes
Landscaping P-Town; the claims against Bonlie individually and
Reyes were dismissed by stipulation.

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easement passed with title to the land.6 Judgment entered for

McLaughlin and the defendants appealed.

Discussion. To establish an easement by prescription,

McLaughlin was required to show, by clear proof, use of the

pathway by Majestic (or others at 283 Bradford) that was open,

notorious, adverse to the owner, and continuous for a period of

no less than twenty years. See G. L. c. 187, § 2; Boothroyd v.

Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). "The nature and

the extent of occupancy required to establish a right by adverse

possession [or by prescription] vary with the character of the

land, the purposes for which it is adapted, and the uses to

which it has been put." Barnett v. Myerow, 95 Mass. App. Ct.

730, 738 (2019), quoting LaChance v. First Nat'l Bank & Trust

Co. of Greenfield, 301 Mass. 488, 490 (1938). The claimant

bears the burden of proof as to each element of a prescriptive

easement. Boothroyd, supra at 44.

6 The defendants have not contested this ruling. The
conveyance of a dominant estate automatically conveys an
appurtenant easement unless otherwise stated in the deed. See
G. L. c. 183, § 15. An easement is appurtenant to an estate
"when it is created to benefit and does benefit the possessor of
the land in his use of the land." Denardo v. Stanton, 74 Mass.
App. Ct. 358, 361 (2009), quoting Schwartzman v. Schoening, 41
Mass. App. Ct. 220, 223 (1996). There is a general presumption
in favor of appurtenant easements instead of easements in gross,
or personal easements. See Denardo, 74 Mass. App. Ct. at 361.
Thus, "[a]n easement is not presumed to be personal unless it
cannot be construed fairly as appurtenant to some estate." Id.,
quoting Schwartzman, supra.

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1. Findings as to the elements of a prescriptive easement.

The defendants argue that the judge erred in finding that

Majestic's use between 1959 to 1984 was continuous, open and

notorious, and adverse. Specifically, the defendants argue that

the evidence at trial showed intermittent rather than continuous

use; that the plaintiff did not show that Majestic's use ever

put Mary Main, an owner of the 590 Commercial property during

the prescriptive period, on notice; and that Majestic's use was

permissive, rather than adverse. As noted, the trial judge

addressed the prescriptive easement elements in turn, and found

that the evidence had proved each of them. Whether the elements

of a prescriptive easement have been sufficiently shown are

generally questions of fact, see White v. Hartigan, 464 Mass.

400, 414 (2013), or mixed questions of law and fact, see

Houghton v. Johnson, 71 Mass. App. Ct. 825, 836 (2008) (applying

law to facts). We review a judge's findings that the elements

of a prescriptive easement have been met for clear error, see

White, supra, and his legal conclusions de novo. See Leahy v.

Graveline, 82 Mass. App. Ct. 144, 149 (2012).

a. Continuous use. Relying on the testimony of Fowler,

McNulty, and Dorothy Mowery, the trial judge found that

Majestic's use was continuous for a period of not less than

twenty years beginning in 1959. The defendants argue that this

finding was clearly erroneous because the testimony at trial,

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including Fowler's, showed only sporadic and intermittent use of

the walkway by Majestic, and that evidence of sporadic use is

not sufficient to meet the requirement of continuousness. See,

e.g., Boothroyd, 68 Mass. App. Ct. at 45. They argue, for

example, that Fowler's testimony showed no more than that

Majestic used the pathway for three weeks every summer. This

argument is unavailing.

To acquire an easement by prescription, a claimant's use

must be continuous, that is, "repeated acts of use, of such a

character and at such intervals, as afforded a sufficient

indication to the owner of the land that the right of way was

claimed against him." Bodfish v. Bodfish, 105 Mass. 317, 319-

320 (1870). Under the case law, constant use is not required,

Id. at 319; rather what must be shown is "continuity of

possession and enjoyment of an easement" that is unbroken.

Boothroyd, 68 Mass. App. Ct. at 45, quoting Pollard v. Barnes, 2

Cush. 191, 199 (1848). Continuity can be proven by

circumstantial evidence. Bodfish, 105 Mass. at 319.

The trial judge found from the witness testimony adduced at

trial, including Fowler's testimony, that:

"[I]t is reasonable to infer that Majestic did walk along
the walkway to access Commercial Street, then on to his
shop. Likewise, it is reasonable to infer Majestic did so
on the days the shop was open, as well as for general
access to Commercial Street for other reasons such [as]
shopping or general access to Commercial Street and its
offerings."

9
These findings of fact were based on reasonable inferences from

the evidence, and were not clearly erroneous. See White, 464

Mass. at 414. Majestic did not have a car, and owned a shop on

Commercial Street in another part of town. The evidence showed

that Majestic would walk. Fowler testified that when he was

vacationing with Majestic, which he did three times a year

starting in 1959, they would use the pathway "almost daily" to

access Commercial Street, and that they did so every time he

visited. McNulty additionally testified that he saw Majestic,

Simmons, or their guests use the pathway "fairly regular[ly],"

and Dorothy Mowery testified similarly. The judge was not

required to evaluate this evidence in a straightjacket, limited

only to the dates on which a witness actually saw Majestic and

others use the path. Rather, from this evidence the judge could

draw the reasonable inference that Majestic used the pathway "on

the days the shop was open, as well as for general access to

Commercial Street for other reasons such [as] shopping or

general access to Commercial Street and its offerings," and that

this use by Majestic (and others from 283 Bradford, including

Mr. Simmons) was sufficiently continuous from at least 1959

through 1979. The judge's finding that this constituted

continuous use during the requisite 20-year period thus was not

clearly erroneous.

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b. Open and notorious. The trial judge further found that

the use by Majestic was open and notorious. The judge stated

that "Majestic made no attempt to conceal his use" and that

"[d]ue to the closeness of the home on 590 to the walkway,

Majestic's passing and repassing along the walkway and opening

and closing the white picket gate leading in or out, was

sufficient to put a reasonable property owner on notice of his

use." The defendants counter that this finding was erroneous,

because one of the former owners, Mary Main, was blind, and

Majestic's use was not of a nature to put a blind person on

notice that Majestic was using the pathway. This argument also

fails.

The requirement that the use be open and notorious to

establish a prescriptive easement "is intended only to secure to

[owners] a fair chance of protecting" themselves. White, 464

Mass. at 417, quoting Foot v. Bauman, 333 Mass. 214, 218 (1955).

"The extent of openness and notoriety necessary for the

acquirement of title by adverse use varies with the character of

the land." Boothroyd, 68 Mass. App. Ct. at 44, quoting Tinker

v. Bessel, 213 Mass. 74, 76 (1912). "To be 'open,' the use must

be without attempted concealment.' Boothroyd, 68 Mass. App. Ct.

at 44. To be "notorious," the use "must be sufficiently

pronounced so as to be made known, directly or indirectly, to

the landowner if he or she maintained a reasonable degree of

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supervision over the property." Id. The use does not have to

be actually known to the landowner, so long as the use is such

that the landowner may be deemed to be on constructive notice.

Id.

Here, there was no clear error in the judge's finding that

Majestic's use was open, in that he did not attempt to conceal

it. The evidence showed that Majestic was easily observable--

and that he was in fact observed--when walking along the

pathway. Furthermore, the judge's finding of notoriety,

considering the nature of Majestic's use (walking over a pathway

that was in close proximity to 590 Commercial) was not clearly

erroneous.

The defendants' argument that openness was not shown

because Mary Main was blind is without merit, where McLaughlin

did not have to prove that the former owners had actual notice

of Majestic's use of the pathway, where the use was of a

character to put the landowner at least on constructive notice,

and where there in any event was evidence that Mary Main was

present at the property and used her backyard for gardening.

See Boothroyd, 68 Mass. App. Ct. at 44-45. The judge did not

err in finding that the use was open and notorious.

c. Adverse. The trial judge also found that Majestic's

use was adverse. The defendants challenge this finding as well,

positing that Mary Main allowed Majestic to use the pathway as a

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friendly accommodation. The defendants point to evidence that

Mary Main was friendly with Majestic, but their evidence stops

there--indeed, the defendants point to no evidence that Mary

Main even spoke to Majestic about the use.

"To be adverse, the use must be made under a claim of

right." White, 464 Mass. at 418. The granting of permission is

inconsistent with adverse use. See Ryan v. Stavros, 348 Mass.

251, 263 (1964). However, if a party shows open, notorious, and

continuous use of the land of another for twenty consecutive

years, the law engages in a presumption that such use was

adverse and conducted under a claim of right. Smaland Beach

Ass'n v. Genova, 94 Mass. App. Ct. 106, 115 (2018); Daley v.

Swampscott, 11 Mass. App. Ct. 822, 827 (1981). In those

circumstances, the burden shifts to the landowner to show the

use was permitted. Smaland Beach Ass'n, 94 Mass. App. Ct. at

115. Moreover, mere acquiescence in the use of another does not

constitute permission. Rotman v. White, 74 Mass. App. Ct. 586,

590 (2009).

Here, given the trial judge's findings of open, notorious,

and continuous use for twenty years, Majestic's use of the

pathway was presumed to be adverse, and McLaughlin thus was not

required to prove that the use was not permitted. Where there

was no evidence adduced at trial to show that Majestic's use was

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permissive, the judge did not err in finding that his use was

adverse.

The defendants point to McNulty's testimony that the

neighbors were friendly with each other, and that McNulty

thought that Mary Main had given him (McNulty) implied

permission to use the pathway. This testimony, however, does

not speak with any specificity to whether Majestic's use was

permissive, and such a conclusion certainly was not required.

See Totman v. Malloy, 431 Mass. 143, 146 (2000) (declining to

create a presumption or inference of permissive use among close

family members for purposes of adverse possession). Rather, the

evidence was such that the judge's finding of adversity was well

supported and not clearly erroneous. And the judge of course

was not required to infer from McNulty's testimony (that he

believed he (McNulty) had implied permission to use the pathway)

that Majestic's use was permissive.7

2. Adequacy of subsidiary findings. The defendants also

argue that the judge failed to make adequate subsidiary findings

7 As the trial judge's finding that Majestic's use was
adverse during a twenty year period starting in 1959 was not
clearly erroneous, the defendants' argument that Majestic's use
was permissive starting in 1984 has no bearing on the
determinative issue. We note, however, that Dorothy Mowery, the
occupant of 590 Commercial starting in 1984 or 1985 and owner by
1987, testified that she understood that Majestic and Simmons
had a right of way over the property, and that she could not
prevent them from using the right of way.

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to support the ultimate finding of an easement by prescription.

Specifically, the defendants argue that the judge failed to make

findings as to the identities of the owners of 590 Commercial

prior to Dorothy Mowery (whose husband took ownership in 1984 or

1985 and transferred it to both of them as tenants by the

entirety in 1987), and specifically whether those prior owners

granted Majestic permission to use the path. The defendants

further argue that without such subsidiary findings, the judge

could not find that Majestic's use was adverse.

The judge, however, was not required to make such findings

in the circumstances presented. As stated supra, continuous,

open, and notorious use of an easement for twenty years creates

a presumption of adversity. See Smaland Beach Ass'n, 94 Mass.

App. Ct. at 115; Daley, 11 Mass. App. Ct. at 827. While such

subsidiary findings may have been helpful, the judge was not

required to make them when the evidence supported the judge's

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findings of Majestic's open, notorious, and continuous use of

the pathway for twenty years.8

Judgment affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.9),

Clerk

Entered: January 30, 2025.

8 The defendants also argue that the judgment for McLaughlin
on Count I of his complaint for declaratory judgment should be
reversed because McLaughlin failed to prove that the trust is
the owner of the land in question, and because McLaughlin did
not join the individual unit owners. This argument is
unavailing.

The trust is the association of unit owners for the 590
Condominium, as reflected in the master deed. As such, the
trust has the authority by statute "[t]o conduct litigation and
to be subject to suit as to any course of action involving the
common areas." G. L. c. 183A, § 10 (b) (4). Accordingly, the
trust is a proper defendant in a declaratory judgment action,
such as the one here, which seeks to establish the existence of
a prescriptive easement over the common areas of the condominium
property. Similarly, the trustees are evidently the individuals
who erected the fence. They also are proper defendants in an
injunction action. We note that the judgment operates against
these defendants and their privies -- those whose interests were
"adequately represented" and whom it would be fair to bind. See
Laramie v. Philip Morris USA, 488 Mass. 399, 405-406 (2021).

9 The panelists are listed in order of seniority.

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