KAREN A. NEWTON v. STEPHEN R.L. FARRAR, BARBARA F. SNYDER, CHARLES P. SWIFT, JOYCE COLLINS-RUFFLEY, GERALD J. SWIFT, HARRY SWIFT, EDMUND SWIFT, VIOLET RICHARD, ROBERT F. SWIFT, and JOSEPH M. LANDREVILLE

This action was commenced by plaintiff Karen Newton on January 28, 2002, seeking to register and confirm title to a parcel of real property located at and known as 212 Chatham Road, Harwich, Massachusetts (hereinafter “Newton Parcel”). A portion of the claimed parcel is owned of record by plaintiff. In this action, the plaintiff seeks to establish title to the remaining portion under the doctrine of adverse possession. A Decision Sketch depicting the Newton Parcel and surrounding area is attached.

On November 6, 2002, notice of the registration was filed at the Barnstable Registry of Deeds in book 15868 and page 245. Pursuant to G.L. c. 185, the Court caused a title abstract to be prepared and filed by a Land Court title examiner and subsequently notified parties with potential interests in the land by publication of a legal notice in a local newspaper, posting of notice on property, and actual notice by certified mail or service by a deputy sheriff. Answers objecting to the Complaint were filed by or on behalf of defendants Stephen Farrar, Charles Swift, Joyce Collins-Ruffley, Gerald Swift, Harry Swift, Edmund Swift, Violet Richard, and Robert Swift as well as by Barbara Snyder and Joseph Landreville.

On July 27, 2007, plaintiff and Mr. Farrar filed Cross-Motions for Summary Judgment, accompanied by various affidavits and memoranda. On July 31, 2007, the remaining defendants—with the exception of Ms. Snyder and Mr. Landrevill—filed a Motion for Summary Judgment with accompanying documents. The motions were argued by counsel on October 4, 2007, after which the matter was taken under advisement.

Based upon the record before me and reasonable inferences drawn therefrom, I find the following facts:

1. Plaintiff is the owner of record of property located at 212 Chatham Road, Harwich, Massachusetts.

2. Plaintiff purchased the Newton Parcel in June 1978.

3. The Newton Parcel is bordered by a parcel of land on its easterly border, labeled “E2” on Assessor’s Map 33 of the Town of Harwich (a copy of which is attached hereto). Lot “E2”, in turn, is bordered by a parcel of land on its easterly Border, labeled “E3” on Assessor’s Map 33.

4. The plaintiff claims title by adverse possession to the southerly portions of Lot E2 and Lot E3, as depicted on the Decision Sketch (hereinafter collectively “Disputed Area”).

5. Prior to June 1978, the Disputed Area was undeveloped forest, with the exception of a driveway located thereon, marked as “Original Sand Driveway” on the Decision Sketch.

6. The Original Sand Driveway connects the Newton Parcel to the public way known as Chatham Road.

7. Since June 1978, plaintiff has used the Original Sand Driveway to access her property.

8. In the mid 1980s, plaintiff caused a portion of the Original Sand Driveway, at the entrance thereto from Chatham Street, to be paved.

9. In the mid 1990s, plaintiff had this paved entrance repaired.

10. Somewhere between 1985 and 1987, plaintiff placed logs along the easterly border of the Disputed Area.

11. Sometime before winter of 1989, plaintiff caused a metal fence to be erected along the easterly border of the Disputed Area.

12. On or about September 1988, plaintiff caused a shed to be built on the easterly border of the Disputed Area.

13. The same year, plaintiff extended the driveway to connect with this shed by cutting down trees and leveling the land.

14. In 1989, plaintiff began posting “No Trespassing” signs on the Disputed Area.

15. In 2002, plaintiff extended the driveway on the Disputed Area to a barn on the north eastrly border of the Newton Parcel by cutting down trees and leveling the land.

*******************************************

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Id.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any…” Mass. R. Civ. P. 56(c).

After reviewing the record before me, I have determined, pursuant to Mass. R. Civ. P. 56(c), that there is no genuine issue of material fact, and that the case is, therefore, proper for summary judgment. Mass. R. Civ. P. 56(c).

*******************************************

Plaintiff alleges that since purchasing the Newton Parcel in 1978, she has maintained and made use of the existing Original Sand Driveway on the Disputed Area for access to her property. She argues that these actions along with other developments on the Disputed Area are sufficient to establish title by adverse possession to the parcel. The defendants, on the other hand, contend that the plaintiff has failed to meet her burden of proof that she has 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 it 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). While daily use is not required to fulfill the “continuous use” requirement in order that continuous seasonal use can suffice, it must nevertheless amount to some level of consistency. Mahoney v. Heebner, 343 Mass. 770 (1961) (finding seasonal variation in use was sufficient). The test is the degree of control exercised over the land by the possessors. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). Thus, the claimant must act, “in a manner inconsistent with the true owner’s rights.” Lawrence v. Town of Concord, 439 Mass. 416 , 421; see 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.

A person can achieve dominion or control over a premises, for example, by making “permanent improvements on the lot,” or by making “significant changes to the land itself, like…by the transformation of whole-tree and brush-covered parcels into lawns…” See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993).

In the present case, plaintiff has not described any use made by her of the Disputed Area—save one—that has continued for the requisite twenty year period. Adverse use of land is interrupted by an adverse possession action to establish title in the land. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , n.8 (1996); Sandwich v. Quirk, 409 Mass. 380 , 383, cert. denied, 502 U.S. 814 (1991); Snow v. E.L. Dauphinais, Inc., 13 Mass. App. Ct. 330 , 336 (1982). Compare G.L. c. 187, §3, relative to notices to prevent easements. Thus, the adverse use must have ripened into a valid claim by the time of that interruption or the use fails to meet the twenty year statutory period and cannot establish title by adverse possession. The reason for this rule is that in a land registration case, as in any case claiming title to land, the Court is charged with determining the state of the title at the time the action is filed. See McMullen v. Proch, 286 Mass. 383 , 388 (1934); Snow v. E.L. Dauphinais, Inc., 13 Mass. App. Ct. 330 , 336 (1982). Here, plaintiff filed this registration action claiming title by adverse possession to the Disputed Area on January 28, 2002, thereby interrupting any adverse use by the plaintiff of the Disputed Area until such time as title to that land is determined.

Plaintiff catalogues a history of her uses of the Disputed Area, yet none of these uses—except for the use of the Original Sand Driveway—begins any earlier than the middle of the 1980s. [Note 2] Accordingly, these uses cannot establish title by adverse possession to the Disputed Area.

Plaintiff also references two annual activities conducted by herself as well as by her acquaintances on the Disputed Area: blueberry picking and the collecting of dead branches and other yard debris. The exact dates of the blueberry harvesting are not clear from the record. [Note 3] Regardless of when the harvesting began, it is clear that it took place only for a few years, and surely not twenty.

Further, the record suggests that although, for two years in the early 1980s, plaintiff engaged in a farming process of burning the blueberries in the winter followed by harvesting them in the summer, she may have continued to pick blueberries in a less formal manner ever since 1978 to the present. Plaintiff does not give much attention to this argument, and neither will the Court. Suffice it to say, this use of the Disputed Area is too intermittent and equivocal. Even if blueberry picking took place on a regular basis, this is not a sufficient use of the land to satisfy the elements of adverse possession. Although this use may be continuous, the Court is not persuaded that picking berries is an activity that demonstrates sufficient dominion or control over the land. For the same reason, the collecting of dead branches and other yard debris is not a sufficient use of the land.

Plaintiff also states that she mowed and otherwise maintained the areas bordering the Original Sand Driveway, and its subsequent extensions. This, again, is not sufficient. The trimming back of otherwise wild brush on certain parts of a parcel is not a permanent improvement, nor is it such a significant change to the land to satisfy the elements of adverse possession. See Lyon v. Parkinson, 330 Mass. 374 (1953) (finding that growing and maintaining a lawn alone is not sufficient dominion or control.); see also 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).

Furthermore, this case presents a locus that is woodland, rendering the requirement for activity sufficient to put the true owner on notice more difficult to attain. Where the locus is unimproved woodlands, the Court necessarily requires a greater degree of use such that the true owner could be put on notice of the adverse use. Specifically, claimant must demonstrate that the unimproved woodland was either enclosed or reduced to cultivation. See Kershaw v. Zecchini, 342 Mass. 318 , 321 (1960); Cowden v. Cutting, 339 Mass. 164 , 168 (1959); Senn v. Western Massachusetts Electric Co., 18 Mass. App. Ct. 992 , 993 (1984).

In the present case, it is undisputed that the Disputed Area was, prior to 1978, an unimproved, wooded parcel of land. Plaintiff does not contend that she ever enclosed the Disputed Area. The only activity that even comes close to enclosure is the log wall and metal fencing on the easterly border of the Disputed Area. However, these are, in reality, merely a demarcation or periphery of one face of the parcel; they do not surround and, accordingly, cannot be said to “enclose” the Disputed Area. Further, plaintiff certainly has not enclosed the Original Sand Driveway in any way.

Plaintiff, similarly, has not cultivated the Disputed Area. Plaintiff states that when she purchased the Newton Parcel in 1978, the Original Sand Driveway was overgrown by the natural, wild brush growing on the Disputed Area. Since that time, plaintiff contends that she cleared the overgrowth and has continuously maintained the Original Sand Driveway by mowing this brush. However, this maintenance is not sufficient to be considered a cultivation of the land. Cultivation suggests a deeper and more significant change of the property; a development which takes the land from its natural state of wildness and transforms it into a man-made formation such that the user’s dominion or control over the land is clear. See Lyon v. Parkinson, 330 Mass. 374 , 379-80 (1953). Here, plaintiff merely mowed and cut back the overgrowth. She did not remove the trees; she did not clear and level the land; she did not plant a lawn; she did not build a wall, pave the driveway, or otherwise improve the land.

Plaintiff makes a point about an annual burn of material collected from the Disputed Area. It is undisputed that this burn is held on the Newton Parcel and therefore, apart from the collection of the material, it has no impact or relevance to the Disputed Area. For that reason, it has no bearing on the issue presently before the Court.

The plaintiff does present one compelling use of the Disputed Area in support of her claim for adverse possession. She alleges that ever since her purchase of the Newton Parcel in 1978, she has been continuously maintaining and using the Original Sand Driveway for access to her property. This activity has been ongoing for over twenty years. However, this use alone is not activity pervasive enough to establish adverse possession. Plaintiff’s use of a right of way for vehicle and pedestrian access to the Newton Parcel is not a change to the Disputed Area sufficient to constitute dominion or control over the property such that it is similar to the actions of the true owner. Use of a right of way for access alone, without other use or improvement, is not sufficient to establish adverse possession. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007); Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). The use of land merely as a conduit to another area is simply not of the type of use that the doctrine of adverse possession is intended to address. However, such use is exactly the type addressed by the doctrine of easement by prescription. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007); Brooks, Gill and Co., Inc. v. Landmark Properties 217, LP, 23 Mass. App. Ct. 528 , 531 (1987); Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

Unlike adverse possession, a prescriptive easement establishes rights to use the property of another for a specific purpose, rather than outright title to the property. See G.L. c. 187. ' 2; Labounty v. Vickers, 352 Mass. 337 , 349 (1967); Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). The acquisition of a prescriptive easement is based upon the same rules and time periods as adverse possession, although to create a prescriptive easement there is no requirement that the use be exclusive. See G.L. c. 187 § 2. However, the distinguishing feature of an easement is that it is confined substantially to the same route and same purpose. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 45 (2007). In the present case, plaintiff has used the Original Sand Driveway for access to the Newton Property ever since her purchase of that property in 1978. While, this is not considerable control over the land, the Court can and does find that it is a sufficient control as a right of way.

In summary, the Court does not find that the various uses of the property catalogued by the plaintiff, taken together, make a valid claim of adverse possession. Because the use of the Original Sand Driveway alone is not a sufficient use, it cannot be said to have started the clock for a valid claim. All other uses began less than twenty years before the filing of this action and, for that reason, fall short of the statutory period required to establish title by adverse possession, even if taken together with the use of the Original Sand Driveway.

CONCLUSION

For the foregoing reasons, this Court concludes that plaintiff has not satisfied the elements of adverse possession with regards to the Disputed Area. The plaintiff’s Motion for Summary Judgment is hereby DENIED IN PART; Mr. Farrar’s Motion for Summary Judgment is ALLOWED IN PART; and the defendants’ Motion for Summary Judgment is ALLOWED IN PART. Plaintiff has established a prescriptive easement to use the Original Sand Driveway for access to her property but has failed to establish title to the Disputed Property by adverse possession.

On all the evidence, I find and rule that plaintiff has not proven adverse possession of the Disputed Area, but allow registration of the Newton Parcel, subject to such matters as may appear in the record and are not in issue here.

By the Court (Trombly, J.).

Charles W. Trombly, Jr.

Justice

Dated: October 9, 2008