BTR VENTURES LLC and BENSON T. ROSS vs. DEBORAH RAPTOPOULOS and VASSILIOS RAPTOPOULOS

Plaintiffs BTR Ventures, LLC (“BTR”) and Benson T. Ross (“Ross”) [Note 1] filed a verified Complaint on October 26, 2006, pursuant to G. L. c. 231A, seeking a Declaratory Judgment that (1) Defendants Deborah Raptopoulos and Vassilios Raptopoulos do not own, and do not have the right to use, a right of way (the “Disputed Area”) located between land owned by BTR and Defendants in Edgartown, Massachusetts, and (2) Plaintiffs have title to the Disputed Area through adverse possession. [Note 2] Plaintiffs also sought damages against Defendants for trespass on Plaintiff Property, as hereinafter defined, pursuant to G. L. c. 185 §§ 1(k) and (o), violations of their civil rights, and intentional infliction of emotional distress. [Note 3] On the same day Plaintiffs filed their Motion for Lis Pendens, which was heard on November 14, 2006, and allowed, subject to clarification of the legal description of the Disputed Area. A second Lis Pendens hearing was held on November 21, 2006, and Plaintiffs’ Memorandum of Lis Pendens was allowed on November 30, 2006.

On December 15, 2006, Defendants filed a Motion to Dismiss, arguing that Plaintiffs could not meet the requirements of adverse possession for title to the Disputed Area. On January 3, 2007, Plaintiffs filed an Opposition to Defendants’ Motion to Dismiss. On January 4, 2007, this court heard and denied Defendants’ Motion to Dismiss because of a dispute over material factual issues. Defendants filed their Answer and Counterclaim on February 5, 2007, alleging slander of title and breach of settlement agreement. [Note 4] Plaintiffs filed their Reply to Counterclaim on April 23, 2007. Plaintiffs filed their Motion for Preliminary Injunction on December 11, 2007. A hearing was held on this motion on December 28, 2007, at which time the parties indicated that they would attempt to resolve the preliminary injunction issues themselves. This court gave them until January 4, 2008, to do so. The parties reported that they were unable to resolve the matter themselves and on January 14, 2008, this court issued a preliminary injunction Order granting Defendants, their family, guests, and invitees the right to use a portion of a driveway (the “Driveway”) located within the Disputed Area for pedestrian purposes to access South Water Street. This court also granted Plaintiffs, their guests, and their invitees, the right to use the Driveway and to maintain the remainder of the Disputed Area in its present condition. [Note 5]

On February 6, 2008, the parties filed a Joint Pre-Trial Memorandum, in which they agreed upon certain facts and exhibits. On February 27, 2008, Defendants filed their Motion in Limine to Exclude Evidence Contradicting the Plaintiffs Judicial Admission Regarding the Way Bounding the Raptopoulos Property. On March 18, 2008, Plaintiffs filed an Opposition to the Raptopouloses’ Motion in Limine to Exclude Evidence. On March 26, 2008, Defendants’ Motion in Limine was heard and denied by this court.

A site view was held on May 7, 2008, and on May 8 and 9, 2008, the first two days of a four-day trial was held at the Daniel Fisher House in Edgartown, Massachusetts. On July 16 and 17, 2008, the third and fourth days of trial were held at the Land Court in Boston. Testimony at trial was given by the following witnesses for Plaintiffs: Hope Kingsbury Register (Plaintiffs’ neighbor), Sharon Smith Purdy (Plaintiffs’ real estate broker), James Reynolds (BTR’s attorney), Walter Carell (Plaintiffs’ landscape architect), Priscilla B. Summers (BTR’s predecessor in title), Glen F. Provost (Plaintiffs’ land surveyor), David LaRue (landscape architect), and Benson Tilford Ross (Plaintiff). Defendants’ trial witnesses include: Jan Grabowski (Defendants’ caretaker and carpenter), Lilah Raptopoulos (Defendants’ daughter), Vassilios Raptopoulos (Defendant), Olga-Laurie Levin (Deborah Raptopoulos’ invitee), Vanessa Raptopoulos (Defendants’ daughter), Alexandra Ellison (Defendants’ invitee), and Deborah Raptopoulos (Defendant). One hundred and ten exhibits were admitted into evidence. On September 19, 2008, Plaintiffs and Defendants filed their Post-Trial Briefs, at which time the case went under advisement.

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

1. BTR is the record owner of property located at 13 Atwood Circle, Edgartown, Massachusetts (“Plaintiff Property”). Plaintiff Property is shown as Lot 47 on the Town of Edgartown (the “Town”) Assessors’ Map No. 29B (the “Assessors’ Map”).

2. Defendants are record owners of property located at 7 Cummings Way in Edgartown, Massachusetts (“Defendant Property”). Defendant Property is shown as Lot 76 on the Assessors’ Map.

3. The Disputed Area is shown as a twenty-five foot wide way on the “Revised Plan of Land in Edgartown, Mass.” dated February 23, 1950, prepared by Everett M. Brooks Co. (Registration Plan No. 17955B) (the “1950 Plan”). [Note 6] Plaintiff Property and Defendant Property are separated by the Disputed Area. The Disputed Area is also shown on the Assessors’ Map as a “25' Way,” but the Disputed Area is not assessed by the Town.

4. Plaintiff Property, Defendant Property, and the Disputed Area were originally owned by a common grantor, Allen Mayhew (“Mayhew”), who acquired title to the parcels and additional surrounding land (the “Mayhew Parcel”) in 1912 by a Commissioner’s Deed dated December 3, 1912, recorded in the Registry at Book 131, Page 269.

5. Mayhew conveyed a parcel of land located between Plaintiff Property and South Water Street, which included a northerly extension of the Disputed Area that would connect Plaintiff Property to South Water Street (the “Norton ROW”), to his sister, Matilda Norton (“Norton”), by deed dated November 26, 1913, recorded in the Registry at Book 132, Page 500 (the “Norton Deed”). The Norton ROW is shown as a “Way 25 ft. wide” leading from South Water Street to Plaintiff Property on a plan titled “Plan of Land in Edgartown” dated September 13, 1940, prepared by Everett M. Brooks (Registration Plan No. 17955A) (the “1940 Plan”). Through the Norton Deed, Mayhew reserved no rights over the Norton ROW to South Water Street for the benefit of his remaining land.

Defendants’ Chain of Title.

6. Mayhew conveyed a parcel of land that included Defendant Property to Caroline P. Boardman (“Boardman”) by deed dated March 20, 1914, recorded in the Registry at Book 135, Page 78 (“Boardman Deed”). This deed describes the easterly boundary of the parcel conveyed as eighty-nine feet by a twenty-five foot wide “way to be laid out.” The westerly boundary is described as seventy-eight feet “by a roadway” (Cummings Way). The Boardman Deed purports to convey a “right of way for all purposes to and from the granted premises to South Water Street in and over the two ways [the Disputed Area and Cummings Way] above mentioned.” [Note 7]

7. By deed dated August 29, 1916, and recorded in the Registry at Book 141, Page 290 (the “Brier Deed”), Boardman conveyed Defendant Property to Mary A. Brier (“Brier”), including an access easement over the Disputed Area out to South Water Street. [Note 8] The Brier Deed was the first occasion on which Defendant Property was separately conveyed.

8. By deed dated December 6, 1929, and recorded in the Registry at Book 189, Page 437, Brier conveyed Defendant Property to Sophia B. Terra. [Note 9]

9. Evelyn VonKamecke conveyed Defendant Property to Theodore VonKamecke and Evelyn VonKamecke (the “VonKameckes”) as joint tenants by deed dated August 15, 1978, and recorded in the Registry at Book 360, Page 14.

10. By deed dated September 2, 1987, recorded in the Registry at Book 483, Page 224, the VonKameckes conveyed Defendant Property to James E. Muller, Trustee of Martha’s Vineyard Family Trust.

11. Defendants took title to Defendant Property by deed dated November 15, 1993, from James E. Muller, Trustee of Martha’s Vineyard Family Trust to Defendants, recorded in the Registry at Book 620, Page 490 (“Defendants’ Deed”). Defendants’ Deed describes Defendant Property as bounded “EASTERLY by way, Eighty-nine (89) feet.”

Plaintiffs’ Chain of Title.

12. Mayhew died in 1916. By deed dated April 10, 1923, and recorded in the Registry at Book 159, Page 222 (the “Elmer Deed”) the heirs of Mayhew, including his sister Norton, conveyed the land on the east side of the Disputed Area, including Plaintiff Property (the “Elmer Lot”) to Elmer E. West (“Elmer West”). The Elmer Deed described the westerly boundary of the Elmer Lot as 439.5 feet “by said King land and land formerly of Allen Mayhew,” without reference to a way or the Disputed Area.

13. By deed dated February 19, 1924, and recorded with the Registry at Book 159, Page 400, Norton conveyed to Elmer West (holder of the Elmer Lot at the time) the use of the Norton ROW for all purposes to South Water Street. [Note 10]

14. By deed dated April 18, 1924, and recorded at the Registry at Book 159, Page 430, Elmer West conveyed the Elmer Lot, including the use of the Norton ROW, to E. Bonnar Atwood (“Atwood”). This deed described the Elmer Lot’s western boundary as land formerly of Mayhew.

15. Atwood filed a subdivision plan of the Elmer Lot titled “Topographical Map of Land in Edgartown, Mass. Belonging to E. Bonnar Atwood” dated August 4, 1926, and prepared by Everett Brooks (the “1926 Plan”) in the Registry at Plan Book 5, Pages 18. Plaintiff Property is shown as Lot 1 on the 1926 Plan. Neither the Disputed Area nor the Norton ROW is shown on the 1926 Plan.

16. In 1928, Lydia M. Bonnar (“Bonnar”) acquired deeded rights in the Elmer Lot and the Norton ROW from Atwood. [Note 11] By deed dated April 27, 1928, and recorded in the Registry at Book 178, Page 293, Bonnar conveyed Plaintiff Property and rights in the Norton ROW to Percy D. West (“Percy West”). [Note 12] The description of Plaintiff Property in this conveyance referred to Plaintiff Property’s western boundary as land formerly of Mayhew.

17. Bonnar deeded the remainder of the Elmer Lot to Eleanor Bonnar Atwood, Trustee of the Atwood Realty Trust (the “Atwood Trust”), by deed dated December 4, 1937, and recorded in the Registry at Book 195, Page 416. By document dated February 28, 1941, Registration No. 17955, the Atwood Trust filed a registration petition for land shown on the 1940 Plan. The 1940 Plan does not show the Disputed Area.

18. By deed dated June 10, 1974, and recorded in the Registry at Book 317, Page 505, Percy West deeded Plaintiff Property and rights in the Norton ROW to Percy West and Mildred H. West, as tenants by the entirety.

19. By deed dated February 4, 1986, and recorded with the Registry at Book 441, Page 668, Percy West, surviving tenant by the entirety, deeded Plaintiff Property and rights in the Norton ROW to Priscilla B. Summers and Robert West, as tenants in common. [Note 13]

20. By deed dated July 15, 2005, and recorded in the Registry at Book 1048, Page 347, BTR took title to Plaintiff Property by deed (the “Plaintiff Deed”) from Priscilla B. Summers. [Note 14]

Use of the Disputed Area.

21. The Disputed Area consists of the following: (1) the Driveway, which provides access between Plaintiff Property and South Water Street, via the Norton ROW; (2) two narrow strips of land, each approximately five-feet wide (the “Grass Strips”), one on either side of the Driveway; and (3) a strip of land on which a wild and heavily brambled hedge (the “Hedge”) grows, separating the western Grass Strip from Defendant Property. [Note 15] The Driveway leads to the garage (the “Garage”) in the southwest corner of Plaintiff Property. The Driveway includes a bumpout (the “Bumpout”) located near the Garage that is used to turn vehicles around. [Note 16] The Grass Strips and the Hedge slope upward from Plaintiff Property toward Defendant Property.

22. In 1929, Percy West and his wife Mildred built the family home at Plaintiff Property and moved in with their four year old daughter (Summers). At that time, Plaintiff Property had a South Water Street address. Between 1929 and 1943, the only access to Plaintiff Property from South Water Street was over the Norton ROW and the Disputed Area. Summers testified that when she lived at Plaintiff Property during her childhood (from 1929 to 1943), the Driveway was rutted and partially covered with crushed stone shells. Summers and her family used the Driveway to access their property during their time living at Plaintiff Property from 1929 to 1984. Between 1943 and the time she moved back to Plaintiff Property in 1984 or 1985, Summers regularly returned to Plaintiff Property to visit her parents. [Note 17] Summers lived at Plaintiff Property from 1984 or 1985 until 2005 when she conveyed the property to BTR.

23. While trial testimony is unclear when exactly the Grass Strips were first planted, Summers testified that they were in existence during her childhood, i.e. prior to 1945, when Summers’ father, Percy West, would mow (or hire someone to mow) the Grass Strips. [Note 18] Aerial photographs show that the Grass Strips were present on April 8, 1969. Upon her return to Plaintiff Property, Summers planted a number of shrubs and other plants in the western Grass Strip. [Note 19]

24. Summers observed no changes in the Driveway from her childhood days when she moved back to Plaintiff Property in 1984 or 1985.

25. Upon returning to Plaintiff Property in 1984 or 1985, Summers made a number of changes to Plaintiff Property, including regrading the Driveway, laying peastone in the Driveway, planting a border garden within the western Grass Strip, and installing railway ties around the Bumpout.

26. The western Grass Strip and the Driveway have been used for pedestrian access from South Water Street to Defendant Property on a number of occasions, commencing in 1993 when Dr. Muller showed Dr. Raptopoulos Defendant Property. [Note 20]

27. In 1994, Summers hired David LaRue to install an irrigation system on either side of the Driveway on both Grass Strips.

28. In 2006, Plaintiffs caused the Driveway to be widened and moved to the west–away from the house on Plaintiff Property–so that the Driveway’s entire western line was approximately equal to where the Bumpout previously existed.

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

The central issue in the instant matter involves the parties’ rights in the Disputed Area. The first inquiry before this court investigates the deeded fee rights in the Disputed Area. After the parties’ respective deeded rights are determined, if necessary, this court will determine whether Plaintiffs have gained title by adverse possession over the Disputed Area or some portion thereof, or in the alternative, prescriptive rights. [Note 21] I shall address each issue in turn.

1. Deeded Rights.

A. Deeded Fee Interest in the Disputed Area.

Pursuant to G. L. c. 183, § 58, the so-called Derelict Fee Statute (“Section 58”) “sets out an authoritative rule of construction for instruments passing title to real estate abutting a way.” [Note 22] Emery v. Crowley, 371 Mass. 489 , 492 (1976); Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 802 (2003). Through Section 58, the legislature codified common law and “mandate[d] that every deed of real estate abutting a way includes the fee interest of the grantor in the way–to the center line if the grantor retains property on the other side of the way or for the full width if he does not–unless ‘the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.’” Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992). [Note 23] Moreover, “the derelict fee statute pertains only to the question of ownership of the fee.” Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005). [Note 24]

Plaintiffs argue that Section 58 does not apply to the Disputed Area, as the Disputed Area is not a “way” for the purposes of Section 58. As evidence for this position, Plaintiffs point to Mayhew’s failure to reserve rights in the Norton ROW in the Norton Deed and the fact that Plaintiffs’ chain of title does not refer to the Disputed Area as a “way.” Plaintiffs conclude that these facts show an intent to abandon any way to South Water Street once contemplated by Mayhew. Defendants argue that, because Defendant Property is bounded by a way as shown in Defendant Property’s chain of title, Section 58 applies and both parties possess a fee interest to the center line of the Disputed Area. [Note 25]

A review of the parties’ respective chains of title sheds light on this dispute. The record is clear that Defendant Property’s chain of title (including the Boardman Deed and the Brier Deed) includes references to a “way” along its eastern boundary. [Note 26] Conversely, Plaintiff Property’s chain of title does not refer to a way as its western boundary, but, rather, “land formerly of [Mayhew].” This ambiguity, in itself, is insufficient for this court to determine that Section 58 does not apply to the Disputed Area, as Section 58 applies unless the parties’ chains of title “evidences a different intent by an express exception or reservation.” Section 58 applies to a way “whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated . . .).” Tattan, 32 Mass. App. Ct. at 242-43 (1992) (internal quotations omitted). Nothing in the language of Section 58 “suggests that its effect is limited only to instruments that describe the real estate conveyed as bounded by a ‘way’ or other similar linear monument.” Rowley, 438 Mass. at 802. Moreover, if courts

were to construe [Section] 58 not to apply to instruments conveying real estate parcels abutting ways or similar linear monuments that failed to describe their boundaries as such, the ownership of the small strips that make up such ways and linear monuments would once again be derelict. . . . Such a result would defeat the very object of the statute and leave in place the imperfection it intended to remedy.

Id. at 804. Despite the absence of an express reference to a way in Plaintiffs’ chain of title, the trial record adequately designates the Disputed Area as a way contemplated by Mayhew since at least 1914 and in existence since at least 1916.

In light of the above, I find that Section 58 applies to the Disputed Area and, thus, confers upon the holders of both Plaintiff Property and Defendant Property a fee interest to the center line of the Disputed Area, subject to the findings of this court on the issues of adverse possession.

B. Deeded Easement Rights in the Disputed Area.

Plaintiffs take the position that Defendants have no easement rights in the portion of the Disputed Area owned by Plaintiffs. Plaintiffs reason that because Defendants have no rights over the Norton ROW, it is impossible for them to get to South Water Street from the Disputed Area, and, thus, any easement rights granted to them in the Disputed Area are extinguished. Defendants argue that Plaintiffs’ impossibility argument requires an adjudication of rights in the Norton ROW and than such a determination is inappropriate as the holders of the Norton ROW are not parties in the case at bar. This court agrees that the rights in the Norton ROW are not ripe for review in the instant matter. As such, whether Defendants hold an express easement across the Norton ROW (from the Disputed Area) to South Water Street are questions that this court cannot conclusively answer at this time. [Note 27]

At the same time that Defendants contend their rights in the Norton ROW are not before this court, they argue that Defendant Property benefits from an easement by estoppel as a result of their chain of title, which describes Defendant Property as bound by a way (the Disputed Area). Decisional law reveals two different theories under which a parcel of land may be conferred rights in a way under the doctrine of easement by estoppel. The first, which is not directly at play in the case at bar, is based on a recorded plan. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (stating that “where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan.”). The trial record indicates that the 1950 Plan was the first plan to show the Disputed Area. The second theory, which appears relevant in the instant matter, states that “when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” Casella v. Sneierson, 325 Mass. 85 , 89 (1949) (emphasis added). An easement by estoppel would arguably grant rights in the northerly extension of the Disputed Area to South Water Street; however, as discussed, supra, that would involve the owners of the Norton ROW, who are not parties to this action. Moreover, it appears as though Defendants cannot obtain an easement by estoppel over the Norton ROW as Mayhew had no rights in the Norton ROW at the time of the Boardman Deed. [Note 28] An easement by estoppel in the Disputed Area would also arguably grant rights in the southerly extension of the Disputed Area, which, again, touches upon the rights of several lot owners who are not parties to this case. [Note 29] As such, in the same manner that this court cannot determine the rights of nonparties relative to the Norton ROW, this court cannot determine whether Defendants have an easement by estoppel over the southerly extension of the Disputed Area at this time.

2. Plaintiffs’ Claims of Adverse Possession and Easement by Prescription.

As this analysis stands, both parties hold fee interest to the center line of the Disputed Area. Plaintiffs’ adverse possession claim will determine the final scope of the parties’ respective interests in the Disputed Area. [Note 30] Plaintiffs allege that they have wiped out Defendants’ rights in Defendants’ half of the Disputed Area as Plaintiffs (and their predecessors in title) have used all of the Disputed Area openly, notoriously, adversely, and exclusively for more than twenty years and are therefore entitled to the exclusive fee interest in all of the Disputed Area by adverse possession. Defendants allege that Plaintiffs’ adverse possession claim fails because Plaintiffs and their predecessor have not used Defendants’ half of the Disputed Area in a manner consistent with adverse possession.

To establish title by adverse possession of a fee unencumbered by an easement, Plaintiffs carry the burden to prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). If any of the elements remain unproven, the party claiming adverse possession cannot prevail. Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). [Note 31] In analyzing Plaintiffs’ claim for adverse possession, I will focus on the three distinct areas of Defendants’ half of the Disputed Area: the Driveway, the western Grass Strip, and the Hedge. I shall address each of these issues in turn.

A. The Hedge.

As this court previously found that Defendants own title to the Disputed Area to its center line, Defendants hold title to the Hedge pursuant to Section 58. The record does not show who planted the vegetation that comprises the Hedge; it does, however, indicate that the Hedge was heavily wooded and consisted of mostly wild brambles until 2005, when Defendants caused a path to be cut in the Hedge. As the record does not reflect that Plaintiffs used the Hedge adversely for any period of time, and certainly not for at least twenty consecutive years, I find that Plaintiffs’ claim for adverse possession over the Hedge fails.

B. The Driveway.

Plaintiffs’ evidence shows that BTR, and its predecessors in title, have used the Driveway since the West family moved to Plaintiff Property in 1929 to the present. [Note 32]

In 1929, the Driveway was the only means of access to Plaintiff Property from South Water Street. Summers lived at Plaintiff Property until 1943. Between 1943 and 1984, Summers often visited her parents at Plaintiff Property and there was no change in the Driveway’s location. She moved back onto Plaintiff Property in 1984 or 1985 and continued to use the Driveway to access South Water Street until she conveyed the property to BTR in 2005. After moving back to Plaintiff Property in 1984 or 1985, Summers graded the Driveway and laid peastone on it. The Driveway is presently used by Plaintiffs for pedestrian and vehicle access to and from South Water Street. Evidence from trial established that the Driveway has been exclusively maintained by Plaintiffs and their predecessors in title and consistently used to access Plaintiff Property since 1929. As such I find that Plaintiffs have satisfied their burden to show actual use of the Driveway for more than twenty years.

Exclusive use is established where it “encompass[es] a ‘disseisin’ of the record owner.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To establish exclusive use, the claimant must show that he used the disputed area to the “exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them.” Id. “Acts of enclosure or cultivation are evidence of exclusive possession.” Labounty v. Vickers, 352 Mass. 337 , 349 (1967). Here, the record indicates that the Driveway was exclusively used as access to and from Plaintiff Property from at least 1943 to 1993. [Note 33] As such, I find that Plaintiffs have satisfied their burden to show exclusive use of the Driveway.

The open and notorious requirement “‘is intended only to secure to the owner [of the affected land] a fair chance of protecting’ his or her property interests.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). For a use to be found open, it “must be without attempted concealment.” Boothroyd, 68 Mass. App. Ct. at 44. The notorious requirement is met where the use is “sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id. Plaintiffs’ predecessors’ use of the Driveway for access to their home for more than fifty years was made with no concealment and was sufficiently pronounced to place Defendants, or their predecessors, on notice of such use. As such, I find that Plaintiffs have satisfied their burden to show open and notorious use of the Driveway.

Adverse use must also be proven in order to establish title by adverse possession. 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). “[T]he nature and extent of occupancy required to establish a right by adverse possession vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put.” Id. This determination is based upon a finding that the claimant made changes on the disputed 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, 34 Mass. App. Ct at 556 (quoting LaChance, 301 Mass. at 491). In Peck, the Appeals Court indicated that parties claiming title by adverse possession may establish their claim by proving that they made permanent changes or significant improvements to the land. Id. “Acts of possession which are few, intermittent and equivocal are insufficient to constitute adverse possession.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). In many appellate cases, the erection of permanent structures or the completion of significant improvements were central to a finding of adverse possession. See, e.g., Collins v. Cabral, 348 Mass. 797 , 798 (1965) (finding adverse possession where party performed lawn maintenance and installed septic tank); Jones v. Gingras, 3 Mass. App. Ct. 393 , 398 (1975) (finding adverse possession where party mowed grass, planted a vegetable garden, and dug ditches for flood maintenance); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979) (holding adverse possession requirements were met where henhouse was erected). Moreover, courts have often found adverse possession in instances where a driveway was created on disputed property. See, e.g., Flynn v. Korsack, 343 Mass. 15 , 18 (1961); Boutin v. Perreault, 343 Mass. 329 , 331 (1961); Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930 , 930 (1991). As Plaintiffs’ predecessors’ use of the Driveway was a permanent change to the Disputed Area that showed control and dominion over such area, I find that Plaintiffs have established their burden to show adverse use of the Driveway.

In light of the above, I find that Plaintiffs’ use of the Driveway (as the Driveway existed prior to its 2006 expansion and only with respect to those portions of the Driveway to which Defendants held title) was open, notorious, adverse, and exclusive for more than twenty years before Defendants began using the Disputed Area in 1993. [Note 34] The parties shall report to this court (Jennifer Masello, Sessions Clerk) in writing, within thirty days from the date of this decision, as to whether Defendants will require the removal of the portion of the Driveway constructed by Plaintiffs in 2006.

C. The Western Grass Strip.

The trial record reflects that the Grass Strips have been in existence for well over twenty years. Additionally, Summers planted various vegetation within the western Grass Strip beginning in the late 1980s and an irrigation system was installed in both Grass Strips in 1994. However, as neither the irrigation system nor the various plantings have existed in the western Grass Strip for more than twenty years, this court is limited to reviewing the mere presence and maintenance of cultivated grass as evidence in support of Plaintiffs’ claim of adverse possession. Such proof, by itself, is insufficient to satisfy Plaintiffs’ burden of showing use that is adverse to Defendants’ rights in the western Grass Strip. [Note 35] In light of the above, I find that Plaintiffs’ claim of adverse possession over the western Grass Strip fails.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: January 29, 2010