MICHAEL F. O'CONNELL and NANCY E. O'CONNELL vs. PATRICK J. KNIGHT and NISSA R. KNIGHT

Plaintiffs Michael F. O’Connell (“O’Connell”) and Nancy E. O’Connell (together, “Plaintiffs”) filed their unverified Complaint on July 13, 2007, pursuant to G. L. c. 231A, § 1, alleging an actual controversy between them and Defendants Patrick J. Knight and Nissa R. Knight relative to the ownership of a small strip of land between the properties owned by Plaintiffs (“Plaintiff Property”) and Defendants (“Defendant Property”). Defendants filed their Answer on August 8, 2007. This court held a pre-trial conference on August 20, 2008. Plaintiffs filed a Motion in Limine to Exclude the Testimony of John Ryder on September 29, 2008, and Defendants filed their Opposition on September 30, 2008. On October 1, 2008, a site view was held and trial commenced at the Land Court in Boston. The second day of trial was held at the Land Court in Boston on October 2, 2008. Defendants filed their post-trial brief on December 4, 2008, and Plaintiffs filed their post-trial brief on December 5, 2008, at which time the matter was taken under advisement.

Testimony for Plaintiffs was given by John Thomas Franklin (prior owner of Plaintiff Property), Naomi Pierce (prior owner of Plaintiff Property), and Michael O’Connell (son of Plaintiffs and current resident of Plaintiff Property); testimony for Defendants was given by Nancy Ryder McCusker (granddaughter of prior owner of Defendant Property), John Ryder (prior resident of Defendant Property), Nissa Knight (Defendant), Michael F. O’Connell (Plaintiff), and Patrick Knight (Defendant). Plaintiffs recalled Michael O’Connell as a rebuttal witness. Forty-three exhibits were entered as evidence.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiffs own the property located at 628 Green Street, Cambridge, Massachusetts (Plaintiff Property), by deed of Michael O’Connell dated September 11, 1998, and recorded with the Middlesex South District Registry of Deeds (the “Registry”) at Book 29087, Page 220. [Note 1]

2. Defendants own the property located at 624 Green Street, Cambridge, Massachusetts (Defendant Property), by deed of Martha I. Ryder dated August 6, 2004, and recorded with the Registry at Book 43475, Page 518. [Note 2]

3. Plaintiff Property and Defendant Property consist of rectangular lots that abut one another with access from Green Street. Plaintiffs access their house, in part, via a south-facing entrance, facing Defendant Property. Defendants’ house does not include an entrance facing Plaintiff Property, rather, Defendants’ house is also accessed from the south.

4. A narrow strip of land owned by Defendants, approximately three feet wide and ninety feet long, runs along the entirety of the border between Plaintiff Property and Defendant Property (the “Disputed Area”). The Disputed Area is shown, but not designated as such, on a plan titled “Plan of Land #628 Green Street Cambridge, Mass.” dated February 16, 2006, and prepared by Harry R. Feldman, Inc., Land Surveyors (the “2006 Plan”). [Note 3]

5. The Disputed Area is separated into three sections. The first section (“Section 1”) is the rectangular strip of the Disputed Area between the rear lot line and the back corner of Defendants’ house and is bounded by a rear wooden fence on the westerly side, a three-foot high wooden fence (“Fence 1”) [Note 4] on the southerly side, a line parallel with the back of Defendants’ house on the easterly side, and the lot line between Plaintiff Property and Defendant Property on the northerly side. Section 1 contains Fence 1 and plantings as well as portions of an outdoor lighting system and underground irrigation system.

6. The second section (“Section 2”) of the contested Disputed Area is the rectangular strip of the Disputed Area abutting Defendants’ house and is bounded by a line parallel with the back of Defendants’ house on the westerly side, Defendants’ house on the southerly side, a line parallel with the front of Defendants’ house on the easterly side, and the lot line between Plaintiff Property and Defendant Property on the northerly side. Section 2 contains plantings as well as portions of the following: a shed; a pergola; a brick driveway; a patio; an outdoor lighting system; and an underground irrigation system.

7. The third section (“Section 3”) of the contested Disputed Area is the triangular portion of the Disputed Area originating from the front corner of Defendants’ house and is bounded by a line parallel with the front of Defendants’ house on the westerly side, the lot line between Plaintiff Property and Defendant Property on the northerly side, and a line extending in a southerly direction from a point (at which Plaintiff Property and Defendant Property’s front and side lot lines intersect) to the northerly corner of Defendants’ house. Section 3 contains plantings and a portion of a brick driveway. Until 2004, Section 3 was bounded, in part, by a wire fence running from the fence post (located near the northern corner of Defendant Property) to the northerly corner of Defendants’ house (“Fence 2”). [Note 5]

8. In the early 1960s a continuous fence existed along the front lot line (along Green Street) of both Plaintiff Property and Defendant Property, with gates allowing access to both houses. In the 1970s, Sullivan opened up the fence along the front property line and added a driveway (the “Driveway”) to the southerly side of Plaintiff Property that extended onto the northerly side of Defendant Property (into Sections 2 and 3); she also installed a patio (the “Patio”) in the vicinity of a grape arbor (the “Grape Arbor”) in Section 2. [Note 6] Sullivan died in 1979.

9. When Franklin purchased Plaintiff Property in July 1984, Section 1 had “modest” plantings and Fence 1; Section 2 had a portion of the Patio and a portion of the Driveway; and Section 3 had a portion of the Driveway and Fence 2. In 1986 Franklin replaced Fence 1, repaved the Patio, added extensive plantings within the entire Disputed Area (including along the side of Defendants’ house), [Note 7] and installed an outdoor lighting system (the “Lighting System”). In 1988 Franklin replaced the Grape Arbor by constructing a wooden shed (“Shed”) and pergola (“Pergola”) [Note 8] and planted wisteria in the vicinity of the Pergola. [Note 9] Franklin also installed an underground irrigation system approximately one foot from Fence 1 and the other backyard fences. [Note 10] Franklin and his wife maintained all of the above items during their ten years living at Plaintiff Property, and used the Disputed Area on a regular basis between 1984 to 1994. [Note 11]

10. Pierce purchased Plaintiff Property from Franklin in 1994 and lived there for four years, during which time she maintained all of the above items in addition to adding some plantings of her own (particularly tulips and scilla). Shortly before she moved from Plaintiff Property, a winter storm damaged the Shed and Pergola.

11. Son purchased and moved into Plaintiff Property in 1998 and has lived there ever since with his wife and two children. He has maintained the structures and yard in the Disputed Area during that time. He replaced the Shed and Pergola in the spring of 2002. He removed a dead Hawthorne tree from Section 1 in 2005, and a dead holly tree from Section 2 in 2006.

12. The Ryder family lived at Defendant Property from 1942 until 2004. [Note 12] At the time they moved into Defendant Property there was a large bush at the northerly front corner of Defendant Property next to a fence post (the still-existing roots are adjacent to Section 3) and Fence 2. The bush partially hid Fence 2. The Ryder family installed a kitchen window that faces the Disputed Area in the 1980s. Prior to the sale in 2004, they removed Fence 2 but left the large bush intact. As of October 1, 2008, the nail holes on the front of Defendants’ house which supported Fence 2 were still visible.

13. Defendants moved into Defendant Property in August 2004. They removed the large bush at the northerly front corner of their property in 2005, although it continues to grow back. Nissa Knight has entered Section 1 several times when retrieving balls which went over the fence while playing with her son. Patrick Night has entered Section 2 several times to remove wisteria branches from the roof shingles on Defendants’ house. Defendants have entered Section 2 when water and snow have pooled in that area and flooded their basement. [Note 13] In Section 3 Defendants have planted flowers in the area adjacent to where the large bush used to grow.

14. The title insurance policy acquired by Defendants on their purchase of Defendant Property excepted the encroachments from Plaintiff Property from title coverage. When Defendants closed on the purchase of Defendant Property in 2004, $1000 of the purchase price was held back for Defendants to pay for a survey of Defendant Property. A survey (the “2004 Plan”) showed the encroachment of the Shed on Defendant Property. Defendants did not receive the 2004 Plan until the spring of 2005, at which time they showed it to Son and his wife. Son and his wife and Defendants talked several times about the encroachments in the fall of 2005. By letter dated April 10, 2006, O’Connell notified Defendants that Plaintiffs wished to purchase the Disputed Area or obtain a perpetual easement over the Disputed Area. In the letter O’Connell stated that Defendants had notified Son “that it was your desire to erect a new fence at the rear of your property running along (what you considered to be) your actual property line.” By letter dated April 17, 2006, Patrick Knight replied that his communication with Son was “with the intent of resolving this issue in a manner that fostered ‘positive’ neighborly relations.” This letter further stated that Defendants intended to erect a new fence in the spring of 2006 to replace Fence 1 along the actual property line and that

[w]hile we would like you to move both your shed and pergola off our property, we will allow you the use of the area where these structures are currently positioned for the time being. In an effort to allow you time to move any plantings that run along the existing fence, we will postpone constructing the fence until the later part of May. . . . We would appreciate your taking action to clear any landscaping improvements you maintain on our property at your earliest opportunity.

There was no follow-up to this letter by Defendants, and Defendants did not construct the fence that they suggested.

15. Starting in the summer of 2007, Defendants began to exercise their rights in Section 1, going into Section 1 to paint the fence and to plant flowers. On August 8, 2007, Defendants filed their Answer in this action, opposing Plaintiffs’ claim of adverse possession.

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Plaintiffs’ Motion in Limine.

On September 29, 2008, Plaintiffs filed a Motion in Limine to Exclude the Testimony of John Ryder. Defendants filed an Opposition on September 30, 2008, and the motion was heard and taken under advisement at the commencement of the trial on October 1, 2008. Plaintiffs’ motion attempted to exclude only the portion of testimony related to a conversation between John Ryder’s father Michael Ryder and Sullivan, both deceased, which took place in 1955. [Note 14] John Ryder did not participate directly in the conversation, rather, the conversation was reported to him by his father.

Defendants argue that the conversation between two deceased people falls under the deceased person exception to the hearsay rule as codified in G. L. c. 233, § 65, which states:

In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it was made in good faith and upon the personal knowledge of the declarant.

The parties cite two Supreme Judicial Court (the “SJC”) decisions regarding this hearsay exception: Dow v. Dow, 243 Mass. 587 (1923), and Tenney v. Foss, 268 Mass. 69 (1929). Defendants argue that the statements made by a deceased person were made in good faith and upon personal knowledge, and, thus, such statements are admissible. Plaintiffs contend that the statements are multiple hearsay (Sullivan to Michael Ryder and Michael Ryder to his son), and cite Dow, which states that “[i]t was a declaration of a deceased person to another deceased person and inadmissible under G. L. c. 233, § 65, or otherwise.” Dow, 243 Mass. at 594. In Dow, the SJC’s basis for its disallowance of testimony was that “[t]he declaration was not of a fact within the personal knowledge of the declarant, but was merely hearsay.” Id. at 594-95. In Tenney, which was decided six years after Dow, the SJC determined that a statement between two deceased persons was admissible under G. L. c. 233, § 65 as it met the requirements of the statute. Tenney, 268 Mass. at 72-73. The SJC concluded that the declaration at issue “was made in good faith and upon [the declarant’s] personal knowledge and therefore was admissible.” Id. at 71. Tenney’s treatment of Dow is particularly relevant to the present motion in limine as the SJC distinguished Dow, explaining that Dow

was a writ of entry to recover certain lands which the demandant contended he owned in fee. [The demandant] offered to show by a witness that Melvin Dow’s sister, who had died before the action was brought, told the witness [Dow] had paid the demandant all he owed him . . . . It was held that the evidence was rightly excluded; that the declaration was not of a fact within the personal knowledge of the declarant but was hearsay. In other words, it was excluded not only because it was a declaration of a deceased person to a deceased person, but because the declarant did not know of her own knowledge that the payment had been made.

Dow, 243 Mass. at 594-95.

Here, the declarations that Defendants seek to enter into the record were made by Michael Ryder, through witness John Ryder. Unlike Dow, and similar to Tenney, Michael Ryder’s declarations were made with personal knowledge as such statements were “derived from the exercise of the declarant’s own senses . . . .” Tenney, 268 Mass. at 71 (citing Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501 , 504 (1916)). Furthermore, as such statements were made well prior to this trial, this court finds that the declarations were made in good faith. As such, the requirements of G. L. c. 233, § 65 are satisfied. With respect to Plaintiffs’ concerns of layered or multiple hearsay, had Michael Ryder been alive and able to testify at trial, his statements as to what Sullivan said would be admissible as an admission by a party opponent. Cf. Abbott v. Walker, 204 Mass. 71 , 73 (1910) (finding that statements of petitioner’s predecessor in title, which “were made by her upon the petitioner’s land while she was its owner. . . . were competent against her and against those who, like the petitioner, claim under her.”). In light of the above, Plaintiffs’ Motion in Limine to Exclude the Testimony of John Ryder is DENIED. [Note 15]

Merits of Plaintiffs’ Adverse Possession Claim.

The sole substantive issue in the case at bar is whether Plaintiffs have established title to the Disputed Area by adverse possession. [Note 16] Plaintiffs argue that they have met all the requirements for adverse possession, and that their actual use was open, notorious, adverse, exclusive and for a period in excess of twenty years. Defendants argue that Plaintiffs fail in their quest because Plaintiffs’ use of the Disputed Area was permissive and was not adverse, open and notorious, or exclusive for a period of twenty years. I shall address each of these issues in turn.

It is well established in Massachusetts that “[t]itle by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). See also G. L. c. 260, § 21. The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). The nature of the required use varies with the characteristics of the land. Id. at 490. If the claimant has not been using the property for the required twenty year period, he can satisfy the requisite period by tacking on a grantor’s period of adverse possession, provided there is privity of estate between the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G. L. c. 260, § 22. The burden of proving acquisition of title through adverse possession is on the party claiming thereby. See Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003).

Permissive use.

Defendants argue that Plaintiffs’ use of Section 1 was permissive, claiming that Michael Ryder permitted Sullivan to keep Fence 1 up, based on a conversation between Michael Ryder and Sullivan. [Note 17] Plaintiffs counter that, even if admissible, such testimony does not establish permissive use. Even though the statements of Michael Ryder were admitted into the trial record, such statements are too vague to allow this court to conclude that Michael Ryder provided Sullivan with permission in context of Plaintiffs’ claims of adverse possession. There was nothing in the conversation between Michael Ryder and Sullivan to indicate that the predecessors of Defendants gave permission for the existence or location of Fence 1. Because of the vagueness of the conversation, nothing was agreed to between the parties. It is unclear from the testimony as to which areas the parties were discussing, what structures were being left status quo, and what the understanding between the parties was. If anything, Michael Ryder acquiesced and“[i]mplied acquiescence is not necessarily the same as permission.” Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). See Rotman v. White, 74 Mass. App. Ct. 586 , 590 (2009) (“[A]cquiescence, or tacit agreement, by an owner, to the adverse use of his property is not the same as granting permission and will not, by itself, defeat a claim of prescriptive rights.”). The record corroborates the conclusion that there was no permission on the part of the Ryders, as the Ryder family failed to make any subsequent statements relative to permissive use in the almost fifty years between 1955 and 2004 when they sold Defendant Property. In light of the above, I find the use of the Disputed Area by Plaintiffs (and their predecessors in title) was not permissive.

Open and Notorious Use.

Defendants assert that Plaintiffs’ use of Sections 2 and 3 of the Disputed Area fail to establish open and notorious use as the use of such sections by Plaintiffs (and their predecessors) failed to put the Ryders on notice that they needed to protect their rights. Plaintiffs argue that the actual use of Plaintiff Property has “place[d] the true owner ‘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.’” Lawrence v. Concord, 439 Mass. 416 , 421 (2003) (citing Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)). “Open and notorious use of a property is . . . deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not.” Lawrence, 439 Mass. at 422.

The replacement of Fence 1 by Franklin is sufficient to show Plaintiffs’ open and notorious use of Section 1. See Poignard v. Smith, 6 Pick. 172 , 178 (1828) (“acts of notoriety, such as building a fence round the land or erecting buildings upon it, are notice to all the world”). The record indicates that Plaintiffs and their predecessors engaged in numerous construction and improvement projects on Section 2, including repairing the Driveway and Patio, constructing the Shed and Pergola, and planting extensively along such section. With respect to Section 3, the owners of Plaintiff Property have installed and maintained various plantings. Furthermore, while the Disputed Area has been divided into three sections for the purposes of this dispute, in the real world Section 3’s landscaping is a continuation from Section 2. This proximal relationship makes the general landscaping use of Sections 2 and 3 difficult to distinguish. In light of the above, I find that Plaintiffs’ use of the Disputed Area was open and notorious.

Exclusive use.

In their post-trial brief, Plaintiffs argue that Defendants and their predecessors have not used the Disputed Area for more than twenty years and, as a result, Plaintiffs’ use has been exclusive. The record shows that from 1956 until 2004 the entire perimeter of the Disputed Area adjacent to Defendant Property has been fenced off from Defendants’ use, and the entire Disputed Area between Green Street and the rear property line of Defendant Property and Plaintiff Property has been blocked by Fence 2, Defendants’ house (with no access to the Disputed Area), and Fence 1. See Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979) (noting that a fence is an importance factor in determining control). In addition, there was no evidence to indicate that Defendants or their predecessors used any of the Disputed Area until after Defendants’ purchase in 2004. [Note 18] Furthermore, Defendants’ sporadic use of the Disputed Area (the retrieval of errant balls, clearing of pooled water and snow, and trimming of wisteria) is insufficient to convince this court that owners of Plaintiff Property have not used the Disputed Area in a manner that “encompass a ‘disseisin’ of the record owner.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) (“Acts of enclosure or cultivation are evidence of exclusive possession.”). In light of the above, I find that Plaintiffs’ use of the Disputed Area was exclusive.

Actual Use for Twenty Years.

Plaintiffs present 1956–the year that Sullivan separated Plaintiff Property and Defendant Property–as the date that Plaintiff Property’s owners began their actual, open and notorious, exclusive, and adverse use. Defendants refute such assertion and claim that Plaintiffs cannot establish a period of adverse use of the Disputed Area over any continuous twenty year period.

In short, this court is not convinced that Plaintiffs meet their burden of showing actual, open and notorious, exclusive, and adverse use solely based on the use of former Plaintiff Property owners Sullivan and Roberts. In 1956, Fence 1 existed in Section 1 and Fence 2 existed in Section 3. The Patio and the Driveway were not constructed in Section 2 until sometime in the 1970s, when the a fence along Green Street was opened. The record does not include any other specific facts regarding Sullivan’s use of the Disputed Area. Moreover, Plaintiffs provide no evidence of Roberts’ actual use of the Disputed Area during the period 1979 to 1984. [Note 19] Even though Fence 1, the Patio, the Driveway, and Fence 2 existed through Roberts’ tenure at Plaintiff Property, this court is not convinced that the existence of such structures with no specific evidence as to actual use of the Disputed Area satisfies Plaintiffs’ adverse possession burden. [Note 20] As such, the outcome of this case is contingent upon Franklin’s use of Plaintiff Property, beginning in 1984.

Whereas the record is unconvincing as to actual use of the Disputed Area by Sullivan and Roberts, Franklin testified that he and his wife regularly used all of the Disputed Area beginning in 1984. Evidence of Franklin’s actual use, in concert with the fact that Fence 1 (in Section 1), the Patio and Driveway (in Section 2), and the Driveway and Fence 2 (in Section 3) existed prior to Franklin’s purchase, assists this court in its inquiry whether Franklin’s use of Plaintiff Property and the Disputed Area demonstrated “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance, 301 Mass. at 491.

After Franklin purchased Plaintiff Property, in addition to generally using the Disputed Area beginning in 1984, he performed a number of improvements in the Disputed Area beginning in 1986. In 1986, Franklin repaved the Patio (in Section 2), “extensively landscaped” all of his yard, including all three sections of the Disputed Area, replaced Fence 1 (in Section 1), and installed the Lighting System (which ran around the perimeter of the rear yard to light the flower beds and was located in both Section 1 and Section 2). [Note 21] In 1988, Franklin also constructed the Shed and the Pergola and planted wisteria around it in Section 2. Additionally, Franklin testified that he parked on the Driveway and indicated that he maintained his yard “pretty meticulously” over the ten year period that he owned Plaintiff Property, which included planting, replanting, cultivating, weeding, fertilizing, and watering. [Note 22] In 1994, Franklin sold Plaintiff Property to Pierce who owned the property for four years until she sold it to Son in 1998. Pierce testified that she used the Shed, the Pergola, the plantings (adding some of her own, particularly tulips and scilla), the Lighting System, and the Patio. She also testified that the Shed and the Pergola were extensively damaged in a winter storm shortly before she sold the property to Son in 1998, where he has lived since. Son testified that he used the Disputed Area in the same way that the other owners used it, except that he replaced the Shed and Pergola, that was damaged in 1998, in the spring of 2002. In light of all the foregoing, I find that Plaintiffs’ actual adverse use of the Disputed Area began when Franklin moved into Plaintiff Property in July 1984.

With respect to the date at which Defendants interrupted Plaintiffs’ adverse possession of the Disputed Area, such date occurs “by the owner’s entry on the land, if, and only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession.” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 543 (1996) (citing 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975)). Defendants purchased Defendant Property in 2004, but did not discover the actual property line or the encroachments until they saw the 2004 Plan in the spring of 2005. Survey results are not adequate to stop adverse possession. See Pugatch, 41 Mass. App. Ct. at 542 (“notice to an adverse possessor of the result of a survey, without more, is insufficient to establish such an exercise of dominion over the disputed area as to interrupt adverse possession.”). [Note 23] Son and Defendants discussed the encroachments in the fall of 2005, but the boundary dispute was never resolved. Correspondence between the parties continued into 2006, with the exchange of letters between Defendants and O’Connell in April 2006, which culminated with Defendants expressing their intent to erect a new fence in the spring of 2006 to replace Fence 1 along the actual property line. This fence was never built. While such correspondence evinces Defendants’ clear intent to take possession of the Disputed Area, it does not satisfy Pugatch’s requirement that Defendants make “entry on the land.” As such, the correspondence and notice of intent to move Fence 1 is insufficient to toll Plaintiffs’ adverse possession, particularly where Defendants did not carry through on their threat to replace Fence 1. Defendants entry on the land was not until the summer of 2007, when Defendants began to exercise their rights in the Disputed Area by painting Fence 1 and planting flowers in such area. As such, I find that Defendants interrupted Plaintiffs’ adverse use of the Disputed Area in the summer of 2007. [Note 24]

In light of the above, the trial record is clear that Plaintiffs and their predecessors used Section 1, Section 2, and Section 3 for at least twenty years (beginning in 1984) before Defendants interrupted Plaintiffs’ adverse possession. As a result of the foregoing, I find that Plaintiffs have established title by adverse possession with respect to all three sections of the Disputed Area.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: November 19, 2009