Real property – Right of way

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Where a judgment was entered in Land Court concerning various sections of North Street in Edgartown, the judgment should be vacated except to the extent that it determines that the plaintiffs own a section of North Street referred to as Area C by adverse possession, but do not so own the section referred to as Area B.

“These cross appeals from a Land Court judgment concern the ownership and use of various sections of a twenty-five-foot-wide way known as North Street in Edgartown. …

“The cross appeals raise five main issues. [Plaintiffs Matthew and Jean Walston] challenge (1) the ruling at summary judgment that lot 1’s right of way over the eastern section was extinguished by prescription and (2) the ruling after trial that lot 1’s right of way over Area B was extinguished by abandonment.

“[Defendant] North12 [LLC], for its part, challenges (3) the ruling at summary judgment that Carroll had failed to effect a substitution for lot 1’s right of way over North Street, (4) the ruling after trial that the Walstons and their predecessor Bell acquired all of Area C by adverse possession, and (5) the ruling after trial that the Walstons own the fee in Area A. …

“The Walstons challenge the judge’s summary judgment ruling that Carroll planted shrubs across North Street in the late 1970s (when he still held the fee in North Street as it abutted and ran east from lot 1). …

“The grant of summary judgment on this issue was error, because the Walstons’ summary judgment opposition materials showed that there was a genuine dispute of material fact over whether Carroll had planted any shrubs or taken any other action to block lot 1’s access to the eastern section. …

“… The factual disputes regarding prescription of lot 1’s easement over the eastern section were thus never appropriately resolved and must now be resolved on remand. …

“The Walstons challenge the judge’s ruling after trial that lot 1’s right of way over Area B was extinguished by abandonment. …

“This was error, because abandonment ‘requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement’ (emphasis added). …

“… The parties have not cited, nor have we found, any authority in Massachusetts or elsewhere establishing that nonuse together with an unmanifested intent is enough. …

“… Therefore, North12’s claim that the Walstons’ conduct conclusively and unequivocally showed their intent to abandon cannot be resolved without additional findings by the judge. We remand for that purpose. …

“We agree with the judge’s rulings that the right of substitution reserved in the 1977 deed of lot 1 was never properly exercised, and that the Walstons own Area C, but not Area B, by adverse possession. We are unable to agree on this record with the judge’s rulings that the Walstons and their predecessors’ right to pass over the eastern section was extinguished by prescription or that they lost by abandonment the right to pass over Area B. Those rulings require further consideration on remand. Finally, the ruling that the Walstons acquired the fee in Area A by operation of the derelict fee statute was made without notice to North12 and the Bunns of such a claim and therefore cannot stand.

“Accordingly, so much of the judgment as implements the rulings that the reserved right of substitution was never properly exercised, and that the Walstons own Area C, but not Area B, by adverse possession is affirmed. The judgment is otherwise vacated and the matter is remanded for further proceedings consistent with this memorandum and order.”

Walston, et al. v. Bunn, et al. (Lawyers Weekly No. 81-008-26) (27 pages) (Docket No. 24-P-1396) (Jan. 20, 2026).

Click here to read the full text of the opinion.