Dexter Credit Union

No. 2012–247–Appeal.

Present: SUTTELL, C.J., GOLDBERG, ROBINSON, and INDEGLIA, JJ. Phillip J. Laffey, Esq., for Plaintiff. Lori Caron Silveira, Esq., for Defendant.

OPINION

The plaintiff, Cynthia Caluori, appeals from a Superior Court judgment, after a bench trial, in favor of the defendant, Dexter Credit Union (Dexter), denying her claim for an easement over the defendant's property. Mrs. Caluori had sought a declaratory judgment that an easement by prescription and an easement by implication existed that gave her the right to use a paved driveway (the disputed property) on Dexter's property. On appeal, the plaintiff argues that the trial court justice erred in finding that she had acknowledged the defendant's superior title and that she had not occupied the disputed property with hostility and under a claim of right. Further, the plaintiff argues that the trial justice erred in finding that Mrs. Caluori had used the disputed property openly but not notoriously. Finally, the plaintiff asserts that the trial justice erred in finding that she did not establish an easement by implication.

This case came before the Supreme Court pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we vacate in part and affirm in part the judgment of the Superior Court.

Facts and Procedural History

In 1981, Mrs. Caluori and her late husband, Anthony, purchased from Dorothy Feeney a parcel of real estate located at the corner of West Greenville Road and Danielson Pike in the Town of Scituate, designated as Assessor's Plat No. 16, lot 18 (Lot 18). At the time of the sale, Mrs. Feeney also owned an adjacent lot (Lot 19) that borders Lot 18 to the north and east, with the bulk of the parcel being located to the east of Lot 18. When Mrs. Feeney conveyed the parcel to the Caluoris, she specifically excluded a portion of Lot 18 (as it then existed) measuring approximately 21′x70′x18′x70′ containing the paved driveway, which then became part of Lot 19.

Since at least 1971, Lot 19 has been the site of a bank. Mrs. Feeney leased the property, in succession, to Industrial National Bank, Fleet Bank, and Bank of America. The disputed property is adjacent to the northern boundary of Lot 18 and provides access to Lot 19 from West Greenville Road. The plaintiff's deed to Lot 18 states that “[t]his conveyance is made subject to that certain lease between Dorothy S. Feeney, lessor, and Industrial National Bank of Rhode Island, lessee * * * to the extent, if any, that any portion of the demised premises intrude upon the lot conveyed by this deed.”

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