MISC 06-325704

October 7, 2008


Trombly, J.


This action was commenced by plaintiffs William Evans and Linda Evans on June 30, 2006, seeking to establish title by adverse possession to a portion of land adjacent to their property (hereinafter “Disputed Area”), which is owned of record by defendant Metuxet Woods, LLC. Defendants Michael Georges and Charles Peiper are managers of this LLC.

Plaintiffs are the owners of record of property located at 108 Holyoke Avenue in Marshfield. They claim that since purchasing this property in 1978 they have continuously used portions of the land abutting its northerly border, as an extension of their backyard. A Decision Sketch is attached (the measurements marked on this sketch are approximate).

On July 18, 2006, plaintiffs filed an Application for Preliminary Injunction seeking to enjoin the defendants from building on the Disputed Area. The motion was argued before the Court (Trombly, J.) on July 25, 2006, and taken under advisement. On August 2, 2006, the Court issued the preliminary injunction.

Trial was held on February 12, 2008. The transcript was recorded by court reporter Karen Smith. During the trial, the witnesses were sequestered. Plaintiffs called two (2) witnesses and defendants called none. Thirty-Four (34) exhibits were admitted into evidence; all exhibits are incorporated herein for the purposes of any appeal.

Based upon the record before me, I find the following facts:

1. In 1978, the plaintiffs obtained record title to the premises known as 108 Holyoke Avenue, Marshfield, Massachusetts.

2. Adjacent to the plaintiffs’ property on its northerly border is a lot—then owned by Michael Nielsen—now owned by the defendants.

3. In 1978, the Disputed Area was undeveloped and wooded, with the exception of the gravel drive extending from Norwich Street along the westerly border.

4. For some period between 1978 and 1979, the plaintiffs cleared the Disputed Area of trees and have maintained a portion of this Disputed Area as an extension of their backyard since then to the present.

5. In 1981, the plaintiffs constructed a shed on the easterly side of the Disputed Area and have maintained it to the present.

6. From 1981 to 1983, the plaintiffs planted a grass lawn covering the Disputed Area, but stopping short of the gravel drive along the westerly border.

7. In 1983, the plaintiffs planted a garden in the center section of the Disputed Area and have maintained it to the present.

8. Since purchasing the property, the plaintiffs have used the southwest section of the westerly border of the disputed section for storing a variety of objects, including boats, vehicles, and firewood as well as locating a swing set and a boat house thereon.

9. In 1994, Michael Neilson, a real estate developer, purchased the adjacent lot containing the Disputed Area.

10. In 1995, Mr. Neilson, with the intent to build affordable housing on his lot, caused the Disputed Area to be surveyed and staked.

11. In 2004, Metuxet Woods, LLC purchased the adjacent lot, including the Disputed Area from Mr. Neilson. At that time, the only work remaining before completion of the project was the installation of a septic system.

12. In 2006, workers not hired by the plaintiffs placed stakes marking off a section of land in the northwesterly section of the Disputed Area.

13. In 2006, the defendants caused rocks and dirt to be placed within the Disputed Area, and this litigation ensued.

The plaintiffs claim that since purchasing their home in 1978, they have cleared, developed, and maintained a triangular portion of the land adjacent to their northerly border. The defendants contend that the plaintiffs have failed to meet their burden of proof that they have adversely possessed the Disputed Area.

“A party claiming title to land through adverse possession must establish actual, open, exclusive, and non-permissive use for a continuous period of twenty years.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See Ryan v. Stavros, 348 Mass. 251 , 262 (1964). “The burden of proof extends to all necessary elements of such possession and includes the obligation to show that is was actual, open, continuous, and under a claim of right or title. If any of these elements is left in doubt, the claimant cannot prevail.” See also Lawrence v. Concord, 439 Mass. 416 , 421 (2003); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). “The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his rights except upon clear proof.” Tinker v. Bessell, 213 Mass. 74 , 76 (1912), quoting Cook v. Babcock, 65 Mass. 206 , 210 (1853).

Overall, the test for adverse possession “is the degree of control exercised over the strip by the possessors.” Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). In determining whether the use and control over the land are sufficient to establish adverse possession, “[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (quoting LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490 (1938)); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). “Acts of possession which are ‘few, intermittent and equivocal’ [are insufficient to] constitute adverse possession.” Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992), quoting Parker v. Parker, 83 Mass. 245 , 247 (1861). Rather, they must be, “so open and notorious that [they] may be presumed to have been known to the rightful owner,” such that they place him on “constructive notice” that a claim of right was being asserted. Lawrence v. Town of Concord, 439 Mass. 416 , 421-22 (2003). Thus, the claimant must act, “in a manner inconsistent with the true owner’s rights.” Id. at 421; see also Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). Permanent improvements or significant changes to the land are more likely to be sufficient to satisfy the elements of adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556.

The maintenance of a lawn on land alone does not demonstrate sufficient dominion or control to satisfy the elements of adverse possession. However, this use may be considered in conjunction with other improvements or changes to achieve a cumulative use that is so sufficient. Lyon v. Parkinson, 330 Mass. 374 (1953); Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996); Lebel v. Nelson, 29 Mass. App. Ct. 300 , 301 (1990); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979).

In the present case, by 1983, plaintiffs had cleared trees from the Disputed Area and planted a lawn stopping short of the gravel drive for use as an extension of their backyard. They had also completed a garden and a shed structure on the yard. It is not disputed that the plaintiffs did not have the permission of Michael Neilson or the defendants to use and occupy the Disputed Area. There is no question that the plaintiffs entered and possessed this portion of the Disputed Area openly and without attempt to conceal this use from the record owners. A yard is an obvious development, especially standing as a clearing in an otherwise wooded area, as is the case here.

There is some controversy over whether trucks or workers of Michael Neilson or the defendants’ entered the yard over the years. However, these accounts appear to be infrequent at best. Plaintiffs do not recount any such occurrences, and in 2004, the defendants appear to have respected the border of the Disputed Area in favor of the plaintiffs by placing no trespassing signs and a temporary fence only along the border of the Disputed Area and not along the border of the plaintiffs’ record land. In addition, the yard has not been disturbed by this apparent entry; it continues to stand and is still maintained by the plaintiffs. Moreover, the defendants failed to introduce any evidence of these entrances and apparent breaks in the exclusivity of the plaintiffs, at trial.

Defendants have argued that any adverse possession of the Disputed Area by plaintiffs was interrupted in 1995, when Michael Neilson caused the adjacent property, including the Disputed Area, to be surveyed and staked and again in 2006, when the defendants caused a section of the northwest corner of the Disputed Area to be staked. However, the surveying and staking of land, without more, is insufficient to interrupt the period of adverse possession. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 541 (1996).

It is worthy of note that the backyard lawn does not cover the entire Disputed Area. By plaintiffs’ own account, the strip of land along the westerly border of the Disputed Area was clear of trees and covered with gravel to form a path before the plaintiffs came to the area in1978. Plaintiffs claim to have always used this portion of the Disputed Area for storing boats, parking cars, piling firewood, and, for a time, as the location of both a boathouse and a swing-set. It also appears that the plaintiffs stored a boat in the southwesterly section of this strip since moving into their home. However, they did not develop this westerly strip in any way, nor did they construct any permanent structures on it. Furthermore, although plaintiffs stored a boat and possibly other items in the southwest section of this strip, there is no express showing that the northerly section was regularly used, if ever.


Accordingly, this Court finds that the plaintiffs have established title by adverse possession to the Disputed Area except for a section in the northwesterly corner marked as “Metuxet Defendant” on the Decision Sketch.

The plaintiffs’ development of the portion of the Disputed Area into an extension of their backyard in 1983 is sufficient dominion over the land to satisfy a claim of adverse possession. Here, prior to the plaintiffs’ use, the land was a wild, wooded area. The plaintiffs cleared a significant portion of trees and planted and maintained a lawn. In addition to the lawn, the plaintiffs cultivated a garden and built a shed structure in this yard. This lawn and the garden and shed, taken together, are sufficient use of the land to satisfy the elements of adverse possession. As this yard has been in continuous existence for over twenty-four years, this Court finds that the plaintiffs have established a claim of adverse possession to that portion of the Disputed Area.

This Court also finds that the plaintiffs’ use of the southwesterly corner of the Disputed Area for parking cars and storing a boat since 1978 is sufficient to establish title to a section of reasonable size to contain the plaintiffs’ vehicle and boat. However, I do not find any clear evidence that the plaintiffs used the northwest section of the Disputed Area or even considered it part of the yard. The law requires such a showing by claimant in order to establish title by adverse possession, and absent such showing, plaintiffs have not met their burden of proof on this matter in this section of land.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: October 7, 2008