DENNIS P. VASSALOTTI, JR. v. CHESTER D. PEIRCE & DOROTHY S. PEIRCE, TRUSTEES OF LAND O’COTLEY TRUST, and NEW ENGLAND FORESTRY FOUNDATIONS, INC.

On July 14, 2006, Dennis P. Vassalotti (Plaintiff) filed a verified complaint [Note 1] against Chester and Dorothy Peirce, as Trustees of Land O’Cotley Trust [Note 2], and New England Forestry Foundations, Inc. [Note 3] (collectively, Defendants) to establish title to a particular strip of land (“Property”) on County Street in Taunton, MA. The Plaintiff seeks a declaration that he is the owner of the fee in said Property and injunctive relief to enjoin the Defendants’ actions on the land determined to be owned by the Plaintiff. A case management conference was held on September 28, 2006.

On April 3, 2007, this court (Trombly, J.) issued a temporary restraining order, without objection, enjoining the defendants from doing anything to damage, interfere with, or destroy plaintiff’s use and maintenance of his driveway, garden, and other landscaping located on the strip of property that is the subject of this litigation. On April 13, 2007, this order was extended until final judgment by agreement of the parties.

A view of the property was taken by this Court on September 14, 2007.

After some delay, [Note 4] on May 15, 2009, this court issued an order, at the request of the parties, to set scheduling deadlines for considering proposals to settle the case. [Note 5] On August 12, 2009, Plaintiff filed a Motion for Partial Summary Judgment to declare he holds fee title to the Property pursuant to G.L. c. 183, § 58, the so-called Derelict Fee Statute. On November 16, 2009, this court (Trombly, J.) issued an order [Note 6] denying the motion, finding the Plaintiff could not utilize the Derelict Fee Statute because the Property did not abut a way, as it is defined in the Derelict Fee Statute, at the time the Property was conveyed to him, and that the grantor, Ms. Bettinson, clearly expressed her intent to retain her fee in said Property.

A one day trial on the present case was held in the Land Court on July 29, 2010. A stenographer recorded and transcribed the proceedings. The Plaintiff, Dennis Vassalotti, testified on his own behalf along with Martin Vickey, a neighbor of Mr. Vassalotti. The only Defendant called to testify was Chester Peirce. During the trial, the parties introduced six exhibits into evidence. The parties also marked as a chalk an enlargement of one exhibit. The six exhibits and one chalk are hereby incorporated into this decision for purposes of appeal. The parties were accorded the opportunity to make final submissions following the preparation of the trial transcript. On November 2, 2010, both parties filed Post Trial Briefs.

Based on the record before me, particularly the exhibits and the testimony of the witnesses, my observations at the view, and reasonable inferences drawn therefrom, I find the following facts:

1. Plaintiff resides in a single family residence on a parcel of land located on the westerly side of County Street in Taunton, as shown on a plan filed with the Bristol County Northern District Registry of Deeds (“Registry”) in Plan Book 133 Page 63. Plaintiff acquired title to said Property by a deed (“Deed”) from Joseph M. Pereira dated October 18, 2000, recorded with the Registry in Book 9025 Page 240. [Note 7]

2. By virtue of said Deed, Plaintiff holds an easement “for all purposes including vehicular passage from and to a public way known as County Street over remaining land now or formerly of Norma L. Bettinson”. Said easement is shown on a plan titled “N/F Norma L. Bettinson”. A Decision Sketch delineating the land at issue in this action and the surrounding area is attached hereto.

3. Plaintiff’s title and easement are the same title and easement created by deed of Norma L. Bettinson to James & Norma Carol Hoffman dated January 4, 1973, and recorded in Book 1623 Page 1158. At the time of this conveyance, Ms. Bettinson did not own the land abutting the northerly side of said Property.

4. Norma L. Bettinson also recorded a plan of land showing 3 lots (Parcels 1, 2, and 3) entitled “Land to be conveyed by Norma L. Bettinson Dated - August 20, 1975" in Book 1686 Page 241.

5. Thereafter, on August 22, 1975, Norma L. Bettinson conveyed Parcel 1 to Norma L. & Robert M. Bettinson by a deed recorded in Book 1686, Page 244.

6. On August 22, 1975, Norma L. Bettinson conveyed Parcel 2 to Robert J. & Rosemary N. Costa by a deed recorded in Book 1686, Page 240.

7. On August 22, 1975, Norma L. Bettinson conveyed Parcel 3 to James A. & Norma L. Hoffman by a deed recorded in Book 1686, Page 242.

8. Robert J. & Rosemary N. Costa conveyed Parcel 2 to Chester D. & Dorothy S. Peirce on May 22, 1989 by a deed recorded at the Registry in Book 4141 Page 189. A corrective deed was conveyed by the Costas to the Peirces on December 14, 1990 and recorded in Book 4610 Page 82. [Note 8]

9. Norma C. Valliere f/k/a Norma C. Hoffman conveyed Parcel 3 to Defendants by a deed dated January 28, 2003 and recorded in Book 11738 Page 226.

10. Since the time Plaintiff has owned his property, he has maintained, within the easement area, a paved driveway and a small landscaped area which consists of flowers and architectural lighting. Also located in the easement area are large stones which have been in existence for more than 20 years.

11. The remaining portion of the disputed easement area consists of woodland, as shown on the plan titled “N/F Norma L. Bettinson” and on the Decision Sketch attached.

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Plaintiff avers that he is the owner, under the doctrine of adverse possession, of the fee in the disputed portion of the easement where he has maintained his paved driveway and a small landscaped area consisting of flowers and architectural lighting. Furthermore, he claims, the large stones have been oriented in such a way that they form a boarder wall delineating the area claimed by adverse possession. The Defendants counter that the Plaintiff has permissively used the disputed area within the scope of the deeded easement, and that the claim for adverse possession should be dismissed because the Plaintiff has not used the disputed property exclusively or adversely.

The general rule for establishing title by adverse possession is that the party asserting such ownership must prove "non-permissive use which is actual, open, notorious, exclusive[,] and adverse for twenty years." Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964). "Acquisition of title through adverse possession is a fact ... to be proved by the one asserting the title. The burden of proof extends to all of the necessary elements of such possession. MacDonald v.McGillvary , 35 Mass. App. Ct. 902 , 903 (1993), further appellate review denied, 416 Mass. 1104 (1993) (rescript opinion) (ellipses in original), quoting Holmes v. Johnson, 324 Mass. 450 , 453 (1949). "If any of these elements is left in doubt, the claimant cannot prevail." Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968).

To succeed in a claim for adverse possession, the claimant must establish that he 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 and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. at 556. See, e.g., Shaw v. Solari, 8 Mass. App. Ct. 151 , 153 (1979) (adverse possession established where claimant erected chicken coop, built picket fence, and maintained driveway); Collins v. Cabral, 348 Mass. 797 , 798 (1965) (adverse possession established where claimants maintained disputed lawn area, cleared land of poison ivy, filled and graded property, and installed septic system); Lyon v. Parkinson, 330 Mass. 374 , 380 (1953) (adverse possession established where claimant cleared land, formed rock garden, and installed rip-rap). The claimant’s acts of dominion and control 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 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).

Plaintiff has not established title to the disputed area in the easement where he maintains his driveway, architectural lighting and the rock wall. As noted above, Plaintiff holds an express easement “for all purposes...over remaining land now or formerly of Norma L. Bettinson”. An easement generally includes such rights as are reasonably necessary for its enjoyment. Anderson v. DeVries, 326 Mass. at 134. Accordingly, the presence of Plaintiff (and his predecessor) in the disputed area was within the broad scope of the deeded easement and did not constitute such acts as would place the fee owner on notice that plaintiff asserted a claim of ownership of the fee.

Whether or not Defendant failed to object to the presence of the Plaintiff’s activities on the land is immaterial.

In addition, the evidence does not support a conclusion that the use or occupancy by plaintiff or his predecessors was exclusive, precluding for yet another reason a finding of title in fee of the disputed area by adverse possession. As he conceded at trial, the Plaintiff failed to take the necessary steps to restrict access to the disputed area. [Note 9] He instead relies on the construction and maintenance of the stone wall as a type of barrier that would preclude trespassers from entering the property. This court disagrees. At trial, Martin Vickey testified on behalf of the Plaintiff to prove the rocks had been in existence for more than 20 years. However, Mr. Vickey also testified to playing on the rocks as a child and that he would pass through the easement area to access the neighbor’s yard to play with the other neighborhood children. Although this testimony does not prove one way or the other that the Plaintiff’s predecessor utilized the disputed easement area exclusively, without further evidence, it creates doubt as to whether Plaintiff’s use was adverse. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) (If any...element[] is left in doubt, the claimant cannot prevail).

Where Plaintiff has a valid deeded easement to use the disputed area, and has used such within the broad scope of the terms of said easement, the Plaintiff’s claim for adverse possession is dismissed. Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: November 30, 2010