a shield defense?
"Most importantly, however, the doctrine of acquiescence is a defensive doctrine; the doctrine is to be used as a shield and not a sword. See Davenport v. Broadhurst, 10 Mass. App. Ct. 182 , 187 (1980). In other words, the doctrine is not used as a tool to acquire the land of the other, as Defendants are trying to do at the case at bar. Defendants may not attempt to justify an acquisition of the Disputed Area with a defensive doctrine."
Recent decision, now under appeal.
> a shield defense?
>
> "Most importantly, however, the doctrine of acquiescence is a defensive doctrine; the doctrine is to be used as a shield and not a sword. See Davenport v. Broadhurst, 10 Mass. App. Ct. 182 , 187 (1980). In other words, the doctrine is not used as a tool to acquire the land of the other, as Defendants are trying to do at the case at bar. Defendants may not attempt to justify an acquisition of the Disputed Area with a defensive doctrine."
>
>
> Recent decision, now under appeal
Don , here is the relevent section of ALBERT W. DAVENPORT vs. EMORY C. BROADHURST & others:
c. Gravel Road over Parcel C. The plaintiff expended labor and some materials in improving Gravel Road for many years. However, it was not until after June of 1963 that the plaintiff began work on the easterly entrance from Route 2 to that portion of Gravel Road which runs through Parcel C. Therefore, it must follow that the plaintiff could not have acquired a prescriptive easement because he had not used or improved that portion of Gravel Road for twenty continuous years. G. L. c. 187, Section 2.
The language which Frederick Field affixed to a letter to him from the plaintiff's lawyer, "right of way ok," created in the plaintiff, at best, a license which was revocable. Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 56 (1938). At that time, June 10, 1963 (the date of the letter), Field owned Parcel C as a tenant by the entirety with his wife Jeannette. Clearly, whatever license Field may have given has been revoked by his successors in title, the defendants Emory C. and Jeannette B. Broadhurst, in light of their opposition to the plaintiff.
The trial judge ruled that the plaintiff had acquired rights to the portion of Gravel Road which crosses Parcel C because the plaintiff had expended substantial money and labor in construction of the road with the knowledge and acquiescence of Field, who never interfered. He found that Jeannette Field acquiesced and was guilty of laches. He ruled that the defendants Emory C. and Jennie S. Broadhurst were bound as assignees and grantees of the Fields. This was error. Whatever may be said for the doctrines of acquiescence and laches as equitable defenses to a complaint for trespass or encroachment, see Ferrone v. Rossi, 311 Mass. 591 , 593-595 (1942); Peters v. Archambault, 361 Mass. 91 , 92-93 & n.2 (1972), these equitable principles may be used as a shield but not as a sword. They may save a defendant from the expense of removing a structure built on another's land, Harrington v. McCarthy, 169 Mass. 492 ,
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494-495 (1897); Geragosian v. Union Realty Co., 289 Mass. 104 , 108-110 (1935); but they do not assist one in the position of the plaintiff in acquiring an easement over another's land.