Home WILLIAM P. McDONALD, individually and as trustee of the William P. McDonald Trust v. GEORGE E. McDONALD, as trustee of the GEM Realty Trust

MISC 274915

December 24, 2008


Long, J.



Plaintiff William and defendant George McDonald are brothers and, through trusts, own adjoining properties in Woburn which they acquired when the former family home-place was divided by their parents. [Note 1] Over time, George has put fill and pavement on portions of William’s land (the “disputed area,” as shown on attached Exhibit A). William brought this suit, in trespass, seeking the removal of the fill and pavement, as well as damages and a permanent injunction prohibiting any further such incursions. George responded by claiming adverse possession of the disputed area or, alternatively, a prescriptive easement.

The case was tried before me, jury-waived. I also took a view. Based upon the parties’ stipulation of facts, the exhibits admitted into evidence, the testimony of the witnesses, my observations at the view, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that William owns the disputed area, free and clear of George’s claims of adverse possession and prescription, which are DISMISSED. George is PERMANENTLY ENJOINED from using or interfering with the disputed area, and William may remove the fill and pavement on his property if he so wishes. William’s request that George be ordered to remove the fill and pavement or, in the alternative, pay for their removal, and his request for other money damages is DENIED.


William is the owner of the property at 19 Maywood Terrace in Woburn, his residence. George is the owner of the property at 17 Maywood Terrace, where he resides. The two are brothers. Their properties were originally part of a larger parcel owned by their parents who, in the mid-1970’s, divided it between their three sons, William, George and Jack. [Note 2]

William and George’s properties share a common boundary line. There is no dispute regarding the record boundary. However, at the wooded rear of William’s lot, where it steeply slopes downwards towards a school playing field, is an area of between 3,100 and 3,400 square feet which George claims by adverse possession or, alternatively, the benefit of a prescriptive easement, as a result of the fill George has dumped there, his flattening of that fill, the pavement he has installed on a portion of the flattened area, and he and his tenants’ parking of vehicles in and around that area. The parties’ properties and the disputed area are depicted on the attached Exhibit A.

George’s claims to the disputed area begin with his activities in 1983 when he constructed a 1 ½ story four-unit dwelling on the rear of his property. [Note 3] That dwelling, depicted as “7 Maywood Lane” on Exhibit A, was built primarily on ledge and its foundation required blasting. The blasting produced boulders and smaller rocks. Most of this remained on George’s lot and was either used to re-fill the area around the foundation or deposited to the side and rear of the building. Some of the boulders, however, were rolled down the slope onto William’s property. [Note 4] William noticed this, but raised no objection. It was at the far rear of his property, the amount of material was “nothing that serious,” and he was on good terms with George at that time. [Note 5] I thus find that the boulders and other fill were dumped in the disputed area with William’s permission, not “adversely,” and certainly without George making or intending any claim of right. [Note 6] Indeed, shortly thereafter, George approached William and sought to buy the rear 12,000 square foot portion of William’s land (which included the area on which the dumping occurred) — a clear acknowledgement of William’s ownership.

Relations between William and George deteriorated soon thereafter. William refused to sell the land to George (he thought he might need it in the future to give him enough area to subdivide his lot), and the two had a fist-fight in November 1983 when William learned that George had convinced their mother to give George’s family an interest in additional family land, disrupting the previous relatively equal division of the various family properties. They have not spoken since.

In 1993, George constructed a two story building (a garage on the ground floor, with an apartment overhead) to the side of the 1 ½ story house, towards William’s property. That building is depicted as “9 Maywood Lane” on Exhibit A. Fill from this construction was dumped on George’s land and in the disputed area, leveled off, and a formal parking area, much of which was later paved, was created and regularly used by George and his tenants. The edge of this pavement extended onto William’s land in the now-flattened area. See Exhibit A. Permission was definitely not granted for these incursions, and they were done by George, intentionally, well knowing that they were over the record boundary line. William certainly knew of these activities (he could hardly fail to see them) and knew they were taking place on his land (he was aware that the boundary was approximately on the line of a large oak tree). [Note 7] He made no objection, however, until his attorney wrote to George on July 27, 2000 (with constable’s certification of service on July 31, 2000) and filed a Notice to Prevent Easement at the registry on July 31, 2000. Middlesex (South) Registry of Deeds, Book 31902, Page 488. [Note 8]

This lawsuit was filed on September 26, 2001.

Other pertinent facts are included in the analysis section below.

The Standard for Adverse Possession

To establish title by adverse possession to the land of another, the claimant must show an open, notorious, exclusive and non-permissive use of that land, adverse to its owner, that has been continuous or uninterrupted for a period of twenty years or more. Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992 , 993 (1984); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Duff v. Leary, 146 Mass. 533 , 540 (1888); G.L. 260, § 21, 22. The burden of proof in an adverse possession case rests squarely on the claimant and extends to all of the necessary elements of such possession. Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). If the claimant is unable to prove each and every element, the claim of adverse possession fails. Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968). See Tucker v. Bessel, 213 Mass. 74 , 76 (1912), quoting Cook v. Babcock, 11 Cush. 206 , 210 (1853).

“The nature and extent of occupancy required to establish a right by adverse possession varies with the character of the land, the purpose for which the land is adapted, and the uses to which the land has been put.” LaChance v. First National Bank and Trust Company of Greenfield, 301 Mass. 488 , 490 (1938). To succeed, the claimant must establish that he or she made changes upon the land that constitute “such a control and dominion over the premises as to be readily considered acts similar to those which are usually considered and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). Such acts of ownership must be sufficiently open and notorious to give notice “to all the world… of an adverse claim of title.” Phipps v. Behr, 224 Mass. 342 , 343 (1916). While the record owner’s actual knowledge of such use is not required, the claimant must show that the owner should have known of such use. Foot v. Bauman, 333 Mass. 214 , 218 (1955). [Note 9] “The test is objective and not subjective; the question is whether the character and scope of the activity are such as to place a reasonable owner on notice that another is making use of the property as though it is theirs.” Anderson v. Kent, 73 Mass. App. Ct. 1105 (2008) (Rule 1:28 memorandum), citing Foot v. Bauman, 333 Mass. 214 , 218 (1955). Constructing buildings, installing fencing, paving, and other “permanent” changes to the land are generally recognized as sufficient acts of possession as long as they are non-permissive. See LaChance v. First National Bank and Trust Company of Greenfield, 301 Mass. 488 , 490-492 (1938). Acts of possession which are “few, intermittent and equivocal” are insufficient. Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992). The key inquiry, then, is whether “the nature of the changes upon the property during a long course of years constituted notice to all the world of an adverse claim of title,” LaChance, 301 Mass. at 491, or whether they were sufficient “to give either actual or constructive notice to the owner that an adverse claim to his land was being advanced and maintained.” Id. at 492. “From the standpoint of the true owner, the purpose of the various requirements of adverse possession—that the nonpermissive use by another be actual, open, notorious, exclusive and adverse—is to put him on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

The Standard for Prescriptive Easement

The elements for a prescriptive easement are the same as for adverse possession, with one exception; the possession need not be exclusive. Garrity v. Sherin, 346 Mass. 180 , 182 ((1963) (“for private easement it is required that the plaintiff prove ‘open, uninterrupted and adverse use for a period of time not less than twenty years’ by the claimant and his predecessors in title”) (citing Tucker v. Poch, 321 Mass. 321 , 323 (1947).


The activities upon which George bases his claims of adverse possession and prescriptive easement fall into three sections, pre-1983, 1983-1993 and post-1993.

Pre-1983, the most that occurred in the disputed area was George’s occasional parking of construction and other vehicles. [Note 10] This parking, however, was occasional at best, never on any defined part of the disputed area (indeed, it occurred primarily and, given the vagueness of the testimony, perhaps exclusively, on George’s own land) and was exactly the type of “few, intermittent and equivocal” actions that do not amount to adverse possession. Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992). [Note 11]

The 1 ½ story dwelling was constructed in 1983, and at least some boulders and perhaps other fill material was deposited on William’s land at that time. This was done, however, with William’s permission (and understood by George to be with William’s permission), and that permission was not withdrawn until the attorney’s letter in 2000. Thus, it was not “adverse” and neither adverse possession nor a prescriptive easement was claimed or established. To the extent vehicles may have been parked in the disputed area between 1983 and 1993, they were there only intermittently. Also, since he had not been told otherwise, George believed he had William’s permission to do so. Thus, it is clear he neither made, nor intended to make, an “adverse” claim.

Post-1993 activities are clearly different. Then, for the first time, in connection with his construction of the two story garage, George indisputedly did major filling in the disputed area, did so without asking or obtaining permission, and laid down pavement in that (and surrounding) areas which he and his tenants thereafter used regularly for parking. Neither adverse possession nor a prescriptive easement have occurred, however, because these activities have not continued for the requisite twenty years. William’s Notice to Prevent Easement was filed at the registry on July 31, 2000, and this lawsuit was commenced on September 26, 2001. These acts cut off the running of the twenty years. G.L. c. 187, § 3; Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542, n. 8 (1996).

The only remaining questions relate to William’s claims for relief. Clearly, as the owner of the land, he is entitled to remove all of the incursions if he so wishes, and to a permanent injunction prohibiting George from any further incursions onto or use of the disputed area. He is not, however, entitled to any monetary damages, either for the cost of removal or compensation for George’s past use. This is so for two reasons.

First and foremost, the statute of limitations on such a claim have long since run. Trespass is a tort, and the relevant statute of limitations is three years “after the cause of action accrues.” G.L. c. 260, § 2A. A tort action accrues when the plaintiff is injured. Koe v. Mercer, 450 Mass. 97 , 101 (2007) (citations omitted). William’s “injury” clearly occurred at the latest in 1993 when the major filling and paving occurred. He did nothing until 2000, well after three years had elapsed. The “discovery rule” [Note 12] does not toll the statute in these circumstances because William either knew or reasonably should have known of the incursions at the time they first occurred in 1993. See discussion and record citations at 4 and n. 7, supra.

Second, William is not entitled to damages because he has not shown that he suffered injury as a result George putting fill, paving, and parking vehicles in the disputed area. Although William estimates that his expenses in surveying his property were $12,500, that amount does not constitute an injury that flowed from the dispute but merely the cost of surveying his property and creating a document reflecting record boundaries. He had previous knowledge of the boundary line because it aligned with an oak tree. [Note 13] Moreover, if William, his heirs, or assigns, wish to build another structure on his parcel, the survey will be necessary to obtain permits. Nor is William entitled to recover the cost of removing the fill and paving that George put in the disputed area, because he knew it was occurring but waited seven years to raise an objection, never attempted to remove it, has not shown any monetary damage or use of his land that was thwarted or even affected by George’s activities, and his testimony indicates he will not actually remove the fill if awarded damages to do so. [Note 14]


For the foregoing reasons, George’s claims for adverse possession and prescriptive easement are DISMISSED IN THEIR ENTIRETY, WITH PREJUDICE. William owns the disputed area, free and clear of those claims. George is PERMANENTLY ENJOINED from using or interfering with the disputed area, and William may remove the fill and pavement on his property if he so wishes. William’s request that George be ordered to remove the fill and pavement or, in the alternative, pay for their removal, and his request for other money damages is DENIED. Judgment shall enter accordingly.


Keith C. Long, Justice

Dated: 24 December 2008


[Note 1] For ease of reference, I will refer to the properties’ owners as “William” and “George” rather than their trusts, which are the actual owners of record. I also refer to them by their first names solely for clarity of reference.

[Note 2] Jack was deeded 17R Maywood Terrace. He later moved to Florida and his parcel is now owned by George.

[Note 3] There is some dispute whether the dwelling is a two-family or four-family. Its building permit described it as a two family. According to William, however, it contains four separate apartments. The discrepancy is not material to this decision. George also testified that, beginning some years prior to the construction of the 1 ½ story dwelling, he parked construction and other vehicles either on or near the disputed area. His testimony as to the precise location of the parked vehicles and the duration of this parking prior to 1993, however, was vague and inexact, and it is far more likely (given the nearness of the slope) that it occurred almost exclusively on George’s own land. It was certainly of insufficient duration (vehicles came and went, and would park sometimes in one location and sometimes in another, on and off the disputed area) to constitute a claim of right to any of the disputed area. See Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992). Post-1993 parking is discussed infra. I find that the construction trailer was parked on George’s land.

[Note 4] Some, indeed, went as far as the school field.

[Note 5] Trial transcript at 43-47. George testified that a much greater amount of fill than simply a few boulders was dumped on William’s land at the time the 1 ½ story dwelling was constructed, see transcript at 245-246, but agrees that William had “no problem” with the dumping at that time. Transcript at 258. Indeed, George recalls William saying that the fill was “probably going to be good [i.e. useful to William] if he [William] [did] something with his property.” Id. It was also in an area where their father, many years before the property’s division, had himself dumped fill material left over from the construction of the other houses on the property. See transcript at 256.

[Note 6] George himself testified that his dumping and grading in 1983 was done with William’s knowledge and permission. See transcript at 248-250.

[Note 7] Indeed, William’s testimony indicates that he was aware of these incursions from the time they first began in 1993. Transcript at 102. He admitted that he raised no objection at that time. Id.

[Note 8] As noted above, the brothers have not spoken to each other since November 1983, and there is no evidence of any written communication prior to the attorney’s letter in 2000.

[Note 9] See also Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44-45 (2007) (suggesting that the use must be “of a degree or character that would reasonably permit a trier of fact to infer that [it] could have been discovered by a reasonably diligent landowner”).

[Note 10] The dumping by the parties’ father could not be adverse to the now-disputed area because, at the time it occurred, George and William’s land was commonly owned by the parents and had not been subdivided and conveyed. Thus, it cannot be “tacked on” to George’s adverse acts.

[Note 11] George himself was uncertain about whether and when his vehicles were parked in the disputed area prior to 1983.

Q: Prior to 1983, you’ve testified that your father deposited some fill in the same area that we’re talking about being the area of encroachment; correct?

A: Yes.

Q: Prior to 1983, did you use that area that is designated as the area of encroachment for parking any vehicles or anything of that nature? And I’m talking about the area of encroachment as opposed to your own property, prior to ’83?

A: Could have been.

Q: If you did, what would it have been used for?

A: Well, I had a construction company in the ‘70s, and we had several cars and trucks and whole bit.

Q: So, they may have been parked over…

A: They could have been.

Q …on that area?

Transcript at 255.

Although Donna McDonald (George’s spouse) testified (in response to very leading questions) that there was “some” parking of vehicles in the disputed area for ten or more years prior to 1983, Transcript at 272-273, I do not find her testimony credible. She admitted that she was not involved with her husband’s business, did not “know for sure where the fill was deposited with respect to the boundary line” (the area where the parking occurred), did not “know whether it was over the line, on the line, or short of the line”, and could only say that the fill was in the “back corner” (a reference which encompasses both George and William’s land, see Exhibit A). Transcript at 275.

William, who knows the boundary line because it corresponds to an oak tree, testified that vehicles were not parked in the disputed area, just next to it. Transcript at 102. In sum, George did not prove that his vehicles were in the disputed area during that period of time or that they were there on more than a “few, intermittent and equivocal” occasions. Kendall, 413 Mass. at 624. The burden of proof in an adverse possession case rests squarely on the claimant and extends to all of the necessary elements of such possession. Holmes, 324 Mass. at 453.

[Note 12] The Massachusetts courts have “developed a discovery rule to determine when the statute of limitations begins to run in circumstances where the plaintiff did not know or could not reasonably have known that he or she may have been harmed by the conduct of another.” Koe, 450 Mass. at 101. In those circumstances, “the statute of limitations period of § 2A does not start to run until a plaintiff discovers, or reasonably should have discovered, that he has been harmed or may have been harmed by the defendant’s conduct. Therefore, the three-year statute of limitations period of § 2A does not start to run until a plaintiff has first, an awareness of his injuries and, second, an awareness that the defendant caused his injuries.” Id. (internal quotations and citations omitted).

[Note 13] Transcript at 104.

[Note 14] Transcript at 144-145 (no competent evidence offered of any diminution in the value of William’s land as a result of George’s fill activities, and William’s admission that he would not use any monetary award he received to remove the fill).