MISC 346219

March 11, 2009


Trombly, J.



This action was commenced by plaintiffs [Note 1] Scott Dyer and Deborah Dyer, husband and wife, on April 30, 2007, seeking to halt the construction of a garage by the defendant James Stevens. Plaintiffs contend that the new garage either encroaches on their property or that it is being constructed too close to the lot line.

Plaintiffs are the owners of the property known as and numbered 8 Shepard Street, Quincy, MA (Dyer Property). Defendant, along with his daughter Donna Stevens, is the owner of the abutting property known as and numbered 20 Standish Road, Quincy, MA (Stevens Property). The Stevens Property is bounded by Waumbeck Street to the southwest, Standish Road to the northwest, Shepard Street to the southeast and Dyer Property to the northeast.

The plaintiffs’ principle challenge to the construction of the garage by the defendant rests on plaintiffs’ contention that the garage encroaches on property acquired by plaintiffs and their predecessors in interest by adverse possession or that it encroaches on a driveway in which they have established a prescriptive easement. Plaintiffs contend that the proposed location of the defendant’s garage would prevent the plaintiffs’ full use of their driveway.

Plaintiffs’ driveway spans approximately sixty four feet from Shepard Street to Standish Road and encroaches on the Stevens Property at varying amounts due to the angle of the property line. See the attached surveyor’s plan entitled “Plan Showing Encroachment in Quincy, MA” for a surveyor’s representation of the driveway. (Def.’s Ex. 8.)

On April 30, 2007 plaintiffs filed a motion for a temporary restraining order seeking to prevent defendant from continuing construction of the disputed garage. The temporary retraining order and summons for a hearing on the application for preliminary injunction were issued on April 30, 2007. On May 7, 2007, arguments were heard on the issuance of a Preliminary Injunction and resulted in the denial of said injunction on May 8, 2007.

Despite attempts to negotiate an agreement, the parties were unable to come to a mutually acceptable resolution. Trial was held on October 15, 2008. Linda Modano was sworn to take the testimony. Scott Dyer testified for the plaintiffs. James Stevens, Donna Stevens and Barbara Radell, testified for the defendant. Seventeen exhibits were taken into evidence and Chalk “A” was marked for identification. On November 6, 2008 the parties were notified of the opportunity to file post trial memoranda by December 8, 2008. By the date of this decision only the defendant had submitted a post trial memorandum to this Court.

Findings of Fact

After reviewing the record before the Court, I find the following facts:

1. Plaintiffs Scott Dyer and Deborah Dyer are the owners of the property known as and numbered 8 Shepard Street, Quincy, MA.

2. The Dyer Property was deeded to Scott Dyer and Deborah Dyer on October 5, 1998, by David McSweeney.

3. David McSweeney purchased the property on June 12, 1992 and owned it until the time the property was sold to Scott and Deborah Dyer.

4. Defendant James Stevens, along with his daughter Donna Stevens, is the owner of the property known as and numbered 20 Standish Road, Quincy, MA.

5. The Stevens Property is abutted by the Dyer Property along its North/Northeast boundary.

6. The plaintiffs’ currently claim ownership of a concrete driveway that encroaches on a portion of the Stevens Property.

7. The driveway was installed at sometime between 1994 and 1996 by David McSweeney.

8. David McSweeney traveled by automobile and on foot over the Stevens Property where the driveway is located.

9. The driveway, or the land on which it sits, was used by David McSweeney during the time he owned the Dyer Property, as a short cut to get from Standish Road to Shepard Street, and vice-versa.

10. To install the driveway, David McSweeney had to remove a single car garage that had existed on the Dyer Property prior to his ownership.

11. Grace Holmes, the owner of the Dyer Property prior to David McSweeney, parked her car in the single car garage that existed on the property. The garage did not encroach on the Stevens Property.

12. Grace Holmes did not cut across the Stevens Property by car, nor did she travel on the Stevens Property when attempting to get to the rear of her home from the garage.

13. In 2006, the defendant petitioned the Quincy Zoning Board of Appeals for a variance from the street set back requirements of the Quincy Zoning Bylaw in order to construct a garage on his property.

14. The variance petitioned for, and obtained, by the defendant was for a variance from the ten foot setback requirement from Standish Road. The proposed garage was not too close to the boundary line of the Dyer Property and no variance was needed regarding this issue.

15. After obtaining the variance for the road set back requirement from the Quincy Zoning Board of Appeals the defendant commenced construction of the proposed garage. This action followed.

Analysis of Claims

Title by Adverse Possession

The plaintiffs assert that they have acquired title by adverse possession to as much of the Stevens Property as is encroached upon by their driveway. To be awarded title to property by adverse possession, the burden is on the claimant to show that his use of the property was nonpermissive and that the nonpermissive use was actual, open, notorious, exclusive and adverse for a period of not less than twenty years. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). The burden of proof of the existence of all elements of adverse possession rest solely on the claimant. Holmes v. Johnson, 324 Mass. 450 , 453 (1949). The claimant’s failure to demonstrate any single element of adverse possession results in the failure of the claim in its entirety. Medonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968).

The analysis of the adverse possession claim asserted by plaintiffs in this action must necessarily focus on the time period involved in the adverse use. Plaintiffs claim to have acquired title by adverse possession due to their use, and that of their predecessor in title. The evidence shows that David McSweeney conveyed the Dyer Property to the plaintiffs on October 5, 1998. Approximately nine years have elapsed between the date on which that the property was conveyed to the plaintiffs and the commencement of this action on April 30, 2007. [Note 2] Because plaintiffs cannot satisfy the twenty year requirement for adverse possession based on their own nine year ownership of the Dyer Property, plaintiffs look to satisfy the time requirement by tacking the claim of their predecessor in interest to their own. To satisfy the twenty year requirement, the plaintiffs may tack the adverse possession claims of their predecessors in title. Ryan v. Stavros, 348 Mass. 251 , 264 (1964).

At trial, the testimony put forth by the parties indicated that David McSweeney installed the driveway during his ownership of the Dyer Property. The testimony further showed that the installation of the driveway occurred in the period between 1994 and 1996. It was also shown that prior to the installation of the driveway by David McSweeney, there was no encroachment on the Stevens Property.

Assuming that the driveway was installed by David McSweeney on January 1, 1994, the driveway would have been in existence, and encroaching on the Stevens Property, for approximately four years prior to David McSweeney’s conveyance of the property to the plaintiffs. Based on this, the longest period of time the driveway could have been in existence and encroaching on the defendant’s property is from January 1, 1994 until the commencement of this action on April 30, 2007, a period of approximately thirteen years.

The evidence presented by the plaintiffs at trial fails to demonstrate a claim of adverse possession for the required period of at least twenty years. Because the plaintiffs have failed their burden to establish the required twenty year period of use, it is unnecessary to evaluate the other elements of the plaintiffs adverse possession claim. Accordingly, I rule that plaintiffs’ cannot establish title by adverse possession.

Prescriptive Easement

The plaintiffs assert a right to use the driveway based on the existence of a prescriptive easement over the defendant’s property.

The requirements for establishing a prescriptive easement are similar to those needed to satisfy a claim of title under adverse possession. To prevail in a claim establishing a prescriptive easement, the plaintiffs must show an open, uninterrupted and adverse use of the property for not less than twenty years. Garrity v. Sherin, 346 Mass. 180 , 182 (1963). As is the case in an adverse possession claim, the plaintiffs may tack the use of the property by their predecessor in interest when determining the time requirement. Id. In order to tack the claims of other parties to establish a private right under a prescriptive easement, privity must exist between the parties. Ryan v. Stavros, 348 Mass. 251 , 264 (1964). “To produce the necessary privity there must be some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one” Id. In addition, the nonpermissive use which gives rise to an easement defines the easement. Lawless v. Trumbull, 343 Mass. 561 , 562-3 (1962).

As discussed with the plaintiffs’ claim for adverse possession, the plaintiffs have failed to demonstrate that their nonpermissive use satisfies the twenty year requirement for title by adverse possession and, consequently, for a prescriptive easement. On their claim for a prescriptive easement, plaintiffs assert that they should be allowed to tack the nonpermissive use by the general public of the Stevens Property as a cut-through from Standish Road to Shepard Street to their private claim as a means to satisfy the twenty year requirement.

Plaintiffs lack the requisite privity with the general public to apply the doctrine of tacking. To tack any use of the Stevens Property to their own, the plaintiffs must establish that they were in privity with those who used the property before them. Ryan, 348 Mass. at 264. To demonstrate privity, the plaintiffs must show that there is such a relationship between the previous users of the Stevens Property and the plaintiffs that it can be said that the plaintiffs are the successor to the previous use of the property. Id. It has not been shown that privity exists between the plaintiffs and the general public.

Because the plaintiffs are unable to tack the use of the Stevens Property as a public foot path to their use of the Stevens Property, they must once again rely solely on David McSweeney’s use of the Stevens Property to prevail on their claim. As discussed earlier, even if the use of the Stevens Property by David McSweeney is tacked to the use by the plaintiffs, the plaintiffs are unable to establish the required twenty years of use to prevail on a claim establishing a prescriptive easement. The claim must therefore fail.

Breach of Contract and Specific Performance

The plaintiffs’ amended complaint alleges that a “contract” was formed between the plaintiffs and defendant when the plaintiff signed a petition in favor of defendant’s variance application. No evidence on this matter was introduced at trial and the court does not consider it further.

Zoning Appeal

The plaintiffs’ amended complaint also alleges that the defendant failed to properly obtain zoning approval for construction of a garage on the Stevens Property. The plaintiffs have failed to properly bring this appeal pursuant to G.L. c. 40 A, § 17. Plaintiffs did not comply with the statutory requirements; the appeal was not timely filed and did not name the Zoning Board of Appeals members as defendants or include a copy of the decision issued by the board. Because of the plaintiffs’ noncompliance with the statutory requirements, the claim is not properly before this court and I do not consider it further.


For the reasons stated above, it is the decision of this Court that the plaintiffs have failed to establish any right to that portion of the Stevens Property on which their driveway encroaches. Based on this determination, the property line between the properties concerned in this action is as indicated on the surveyor’s plan entitled “Plan Showing Encroachment in Quincy, MA.” (Def.’s Ex. 8.) Because of the plaintiffs’ failure to establish their right to any portion of the Stevens’ Property, the portion of the plaintiffs’ driveway present on the Stevens Property constitutes a trespass. The plaintiffs, Scott and Deborah Dyer, are hereby ordered to remove as much of the driveway as is encroaching on the Stevens Property within thirty (30) days of the date of this decision. Plaintiffs’ failure to remove the portions of the driveway encroaching on the defendant’s property within thirty days (30) of the date of this decision and judgment shall result in the right of the defendant, James Stevens, to remove the encroaching portions of the driveway himself. No monetary damages, or attorney’s fees, shall be awarded. Judgment to issue accordingly.

Charles W. Trombly, Jr.


Dated: March 11, 2009


[Note 1] Plaintiffs, despite several suggestions by the Court that they retain counsel, chose to exercise their right to present their case pro se.

[Note 2] The defendant’s answer and counterclaims request “[t]hat Dyer be ordered to remove that portion of the driveway that encroaches on the Stevens Property.” If the defendant’s action is ultimately successful, such a counterclaim effectively interrupts the adverse possession claim as of the commencement of this action. See In re Buttrick, 185 Mass. 107 , 111 (1904).