DERMOT GREALLY v. JOSEPH MORELLO, JR.

Plaintiff Dermot Greally (“Plaintiff “or “Greally”) commenced this trespass action on February 1, 2007 alleging that a portion of a shed owned by Defendant Joseph Morello, Jr. (“Defendant” or “Morello”) encroaches upon his property. Greally seeks a declaration that a portion of Morello’s shed is encroaching upon his property, and also requests removal or relocation of the shed to a location where it no longer encroaches, along with damages for surveying costs and filing fees. On February 27, 2007, Defendant filed his answer and counterclaim, alleging that he owns the property on which the shed is located by way of adverse possession. Morello also alleges that Greally performed worked on his property without permission, resulting in water infiltration in his basement, and seeks damages to replace a fence that Greally removed in 2001 and for Greally’s unlawful work on his property.

I took a view on September 9, 2010, and trial was held on September 10, September 17, and November 2, 2010. Testimony was taken from eleven witnesses: Plaintiff, Defendant, Elizabeth Buonarosa, Stephen Montgomery, Peter DePasa, Nola Shea, John DelFavero, Terry LeRoux, Judith Amelotte, Shirley Batchelder and Rhonda Batchelder. There were approximately ninety exhibits and various chalks introduced at trial. The testimony was reported. Post-trial briefs were filed by Plaintiff and Defendant on January 26, and January 25, 2011, respectively.

Introduction

Greally is the owner of the real property located at 599 Middlesex Turnpike, Billerica, Massachusetts (“Greally property” or “599 Middlesex Turnpike”), which he acquired by deed dated November 19, 1999, and recorded with the Middlesex North Registry of Deeds at Book 10530, Page 119. He has resided at 599 Middlesex Turnpike continuously since the time he purchased the property. Greally acquired the property from Robert and Joan Fontaine, who purchased the property from Nola Shea. Ms. Shea resided at 599 Middlesex Turnpike from December 1970 to December 1986.

Morello owns the real property located at 603 Middlesex Turnpike, Billerica, Massachusetts (“Morello property” or “603 Middlesex Turnpike”), having acquired it by deed dated November 30, 1998, and recorded with the Middlesex North Registry of Deeds at Book 9752, Page 183. He has continuously resided at 603 Middlesex Turnpike since he purchased it from Elizabeth Buonarosa, who resided there from June 1979 until November 1998.

The Greally and Morello properties are single-family residential lots directly abutting one another. Greally’s property is located to the north of Morello’s property, and both properties have frontage on Middlesex Turnpike. [Note 1] The parties agree that Morello’s shed encroaches on Greally’s property by 4.7 feet, as shown by a Plan of Land by Dresser, Williams & Way, Inc. dated March 9, 2007. They also agree that Morello’s shed constitutes a trespass if he is unable to prove ownership of the land on which the shed is located by adverse possession. Greally admits to removing a fence that was situated somewhere between the two properties in 2001.

Adverse Possession

The resolution of Morello’s adverse possession claim involves two primary issues, each discussed below: (1) the existence of a fence or fences and a stone wall between the Greally and Morello properties, and (2) the activities that were conducted in the disputed area.

Fence(s) and Stone Wall

Elizabeth Buonarosa, Morello’s predecessor in title, testified that while she resided at 603 Middlesex Turnpike from June 1979 to November 1998, there were two fences between the Morello and Greally properties. One was a green chicken wire fence approximately four feet high, which extended from boulders that ran perpendicular to Middlesex Turnpike. She did not erect that fence and she believed that it belonged to the Greally property. The second fence was also green and ran perpendicular to Middlesex Turnpike. It was located closer to her house and it ran to the rear of the property, passing to the right of the shed located on her property. [Note 2] That fence was there when she purchased the home and she believed it belonged to the Morello property. The fence ran close to the house, and although she could not describe with any particularity how close it ran to the house, she did testify that she was able to use a lawnmower in the space between the house and the fence.

Morello testified that when he purchased his property in 1998 there was a stone wall running parallel to Middlesex Turnpike, which ran in front of Greally’s property and ended at Greally’s driveway, which is located to the left of Greally’s house. Then the rock wall turned to run perpendicular to Middlesex Turnpike, running toward the rear of the properties and extending approximately three to four feet beyond the front right-hand corner of his house. A green wire fence then extended from the perpendicular stone wall and ran toward the rear of his property, beyond a shed situated at the right rear of the property (leaving approximately two feet between the shed and the fence), turned left behind the shed to run in a southerly direction, then turned right and then ran in a westerly direction until it met a another fence at the rear of the Morello property. Morello believes that the rock wall and fence as just described were situated approximately ten feet to the right of his house. Morello did not corroborate Ms. Buonarosa’s testimony concerning the existence of a second fence.

Stephen Montgomery, who resided with Morello from 1998 to 2008, also testified to the existence of a green fence running from a rock wall that ran perpendicular to Middlesex Turnpike and then ran towards the rear of the property. He testified that the fence was located about eight feet to the right of Morello’s home. He did recall a second fence running parallel to the green fence that protruded from the rock wall. He described the second fence as being old, with wires falling down and three or four stakes in the ground.

Nola Shea testified that when she purchased the Greally property in 1970, there was nothing separating the left side yard of the Greally property from the right side yard of the Morello property. The only stone wall she recalled was one that ran parallel to Middlesex Turnpike and separated the two properties from the road. Ms. Shea did not recall a stone wall running perpendicular to Middlesex Turnpike; although she did recall various rocks scattered in between the two properties, she did not recall them being arranged in any meaningful way. Rather, she only recalled a stone wall running parallel to Middlesex Turnpike, extending along the front of her property and also in front of the Morello property. Ms. Shea produced various canceled checks and invoices for the purchase of fencing materials that she used to construct a fence between the properties in the summer of 1982 to contain her dogs. The fence itself was a 2-inch by 4-inch welded wire fence that stood approximately five feet tall. She placed the fence perpendicular to Middlesex Turnpike, over four feet from the Morello house and approximately three feet from where she believed the property line was. The fence extended approximately five to six feet past the rear of the Morello house, then it arced as she began attaching the fence to trees at the rear of her property instead of installing free-standing fence posts, due primarily to the difficulty in placing the fence posts in the rocky ground. Ms. Shea further testified that she did not place the fence exactly on the property line as a courtesy to her neighbors at 603 Middlesex Turnpike because doing so would have made it difficult for them to access a porch area and access door, paint the house, or even wash the windows. When she moved out of the Greally property in 1986, the fence that she had erected was still standing.

Judy Amelotte was a long-time friend of Nola Shea’s who visited the Greally property approximately six to seven days a week while Ms. Shea resided there. She helped Ms. Shea put up a fence, which she testified ran perpendicular to Middlesex Turnpike and extended to the rear of the property to meet a chicken fence that was attached to the garage. She recalled discussions between herself and Ms. Shea about where to place the fence in order to allow the owners of the Morello property to access the side of their property while still being able to hammer the fence posts into the rocky ground. They purposely offset the fence from the property line. She also testified to seeing an iron post that she believed to be a property marker and provided the Morello property with approximately eighteen inches of land along its right side. She testified that the fence was not moved between the time it was constructed and when Ms. Shea sold the property in 1986. With respect to any second fence, she only remembered the remains of a stone wall, approximately two-and-a-half to three feet tall, located parallel to Middlesex Turnpike.

When Greally bought his property in 1999, there was a fence between his property and Morello’s property that was situated approximately four to five feet from the foundation of Morello’s house. The fence was constructed of welded wire with two-by-four openings, was attached to wrought iron posts, and extended from a perpendicular stone wall between the two properties. Where the stone wall ran perpendicular to Middlesex Turnpike, it did not extend as far back as the front of Morello’s house; the fence that extended from the stone wall extended beyond Morello’s shed and stopped just short of the rear property line.

John DelFavero has resided at 594 Middlesex Turnpike, directly across the street from the Greally property, since 1975. He did not recall ever seeing a stone wall running perpendicular to Middlesex Turnpike, but he did recall a stone wall located parallel to Middlesex Turnpike and running from the right hand side of the Greally property to the fence or perhaps a little beyond. He was unable to see the shed until the trees were removed, but once he was able to do so, he saw a fence that “tipped over” approximately four to five feet once it reached the shed.

Shirley and Rhonda Batchelder have lived at 605 Middlesex Turnpike, next to the Morello property, since 1998. The Batchelders had a clear view of the fence to the right of the Morello property from the kitchen window. Shirley Batchelder described it as a light green, old fence.

Mr. Morello called Terry LeRoux as an expert witness. He is a civil engineer with a degree in photometric engineering who testified that as evidenced by aerial photos of the area taken in March 1982, a stone wall ran in front of both properties. He also testified that there was a small wall that intersected the first wall and ran up the side of the Morello property, extended for approximately three to four feet beyond the front of the Morello house, and that it was situated approximately six to eight feet from the right of the Morello house. The stone wall was approximately eighteen inches wide and consisted of stacked stones, though he was unable to determine the height of the stone wall. Mr. LeRoux also noted, however, that the pitch of the land from Middlesex Turnpike up to where the wall was located would affect his ability to provide accurate measurements.

Activities in Disputed Area

Ms. Buonarosa, former owner of the Morello property, testified that there were lilac bushes standing ten to fifteen feet tall inside the fence that ran closest to her home. She pruned these lilac bushes and also mowed the lawn, planted grass, and generally maintained the lot on the right side of the house while she lived at the Morello property between 1979 and 1998. During the early to mid-1990s, she put a shed in her yard and situated it on her side of the yard before it hit any fence. Ms. Buonarosa also testified that throughout the time that she resided at 603 Middlesex Turnpike, she mowed the grass that grew between the two fences to the right of the house. At her deposition, Ms. Buonarosa had testified that she removed several trees in the area between her house and the fence extending from the stone wall, although she was unable to recall such testimony at trial. There was a strip of land between the two fences that was wide enough to get into with a lawnmower, although she could not provide any further estimate of the width of the land. She could not recall if Nola Shea ever installed a fence while she was living there.

Mr. Morello also testified to the existence of about four lilac bushes on the right hand side of his property, running from the house to the shed. He ripped the lilac bushes out within his first year of living on the property. Morello testified to various activities that he has conducted on the right side of his house during the time that he has lived there, including mowing grass, planting grass, liming, fertilizing, and cutting wood.

Stephen Montgomery testified that while he resided with Morello from 1998 to 2008, he did landscaping work on the right side of the house, including lawn mowing and weed wacking.

Ms. Shea testified that her knowledge about where the property line was located was based on various markers that she was shown when she moved into the Greally property, including one that was on the corner of the two properties, just outside of the stone wall, as well as another one approximately 100 feet to the rear of that point. Accordingly, she believed that her left side yard extended to approximately eighteen inches from the foundation of the home at 603 Middlesex Turnpike. In 1970, when she moved in, the right side yard of the Morello property contained tree debris; there was no grass growing there. There was a large rock straddling the property line between the two properties and a large oak tree as well. Due to the rocks, trees, and the slant of the land, she did not spend much time on the left side of the property. Throughout her time living on the Greally property, the right side yard of the Morello property consisted of dirt, rocks, leaves and pine needles, with the exception of a small patch of land that was periodically grassed at the rear corner of the house at 603 Middlesex Turnpike. Her left side yard contained some large oak trees, which she had removed, though she left the one that straddled the two properties. There were skinny pine trees in her left side yard as well.

Ms. Amelotte did not recall anyone doing any landscaping or gardening work in the strip of land between the fence and the Morello property, nor did she recall seeing any recreational activity in that area. She also did not recall any changes to the strip of land between the fence and the Morello house during the time that Ms. Shea resided on the Greally property.

When Greally purchased his property, he believed that his property line was within a couple of feet of the house at 603 Middlesex Turnpike - this was based on his experience reading plans of land from when he was employed as a foreman in heavy equipment and construction in combination with his observations. When he moved in, the far left side of his property and the area where Morello’s shed encroaches on his property consisted of weeds, brush, rocks and a few trees - it was not landscaped. Greally testified that he never saw Morello or Mr. Montgomery mowing grass to the right of Morello’s house. Although the area where the fence was removed is now landscaped and contains grass, there were only weeds and brush on the ground in that area at the time the fence was removed. Since landscaping the area and planting grass, Greally has maintained the area by mowing the grass approximately every two weeks.

Mr. DelFavero’s home is situated several feet lower than the Morello home. He described the left side of the Greally property as consisting of trees, dirt, and brush when Greally purchased the property. He further testified that within approximately a month or two of Greally purchasing the property, he removed “90 percent of the trees” from the left side yard of his property, removing the stumps and leveling the land off.

Shirley Batchelder testified that she saw Morello and Mr. Montgomery mowing on the side closest to the Greally property and “disappearing behind the house” while she could still hear the lawn mower. Rhonda Batchelder testified that she could see the area between the Morello house and the shed from the inside of her home. She saw Mr. Morello or Mr. Montgomery mowing every week or every other week; they would start on the left behind the house, go around the house, and come back out and mow the front of the property. She stated that she could hear the lawnmower during this entire time.

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An adverse possession claim is proven by showing “nonpermissive use which is actual, open, notorious and adverse for twenty years.” Kendall v. Selvaggio, 413 Mass. 619 , 621-22 (1992) (citing Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G. L. c. 260, §§ 21, 22). The area claimed by adverse possession must be identified with sufficient certainty. Reider v. Carroll, 2010 WL 3159598, at *6 (Mass. Land Ct. 2010). This might be achieved through the use of a plan, survey, or descriptive measurement so long as it clearly distinguishes between land that is and is not claimed through adverse possession. Id.

The use required to be made of the land claimed by adverse possession will “vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” La Chance v. Rubashe, 301 Mass. 488 , 490 (1938). Typically, permanent improvements or significant changes to the land must be made by the person claiming adverse possession, but less significant changes may suffice when those activities “were associated with others which together showed ‘control and dominion.’” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556-57 (1993). The party asserting adverse possession must show acts that were more than just “few, intermittent and equivocal.” Parker v. Parker, 83 Mass. 245 , 247 (1861). The open and notorious use of the property must be inconsistent with the true owner’s rights such that the true owner receives notice of the claimant’s non-permissive use. Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959).

Ms. Buonarosa and Mr. Morello testified that their activities in the disputed area to the right of 603 Middlesex Turnpike consisted of pruning lilac bushes, removing trees, mowing grass, seeding, liming, and similar activities. Even if I were to credit all of the testimony of Mr. Morello and Ms. Buonarosa regarding these activities, which I decline to do, the activities were not sufficient to raise to the level of adverse possession. These types of activities do not constitute permanent improvements or significant changes sufficient to show control or dominion, or to put the true owner on notice of their non-permissive use of the land.

In addition to his reliance on the activities conducted in the disputed area, Morello attempts to supplement his claim for adverse possession based on the portion of the stone wall that allegedly ran perpendicular to Middlesex Turnpike and extended approximately three to four feet beyond the front of his house at 603 Middlesex Turnpike along with the green fence extending from it and running to the rear of the property. He alleges that this stone wall, and fence extending from it, already existed in 1979 when Ms. Buonarosa purchased the Morello property and that it was not constructed by Ms. Shea. Morello states that “by inference” the stone wall and fence extending from it must have been constructed by some prior owner of the Morello property. Then, as his argument goes, construction of that stone wall and fence by a prior unknown owner of 603 Middlesex Turnpike, the placement of the shed by Ms. Buonarosa, and the maintenance activities performed by himself, Mr. Montgomery and Ms. Buonarosa, show adverse possession. First, there is no clear evidence that such a stone wall running perpendicular Middlesex Turnpike even existed. The testimony of several credible lay witnesses varied on this issue and Mr. Morello’s expert witness, Terry LeRoux, was not conclusive. What is clear is that if such a stone wall with a fence extending from it did exist, nobody knows who constructed the stone wall and its associated fence, particularly considering Ms. Shea’s testimony that she did construct a fence but does not recall any stone wall running perpendicular to Middlesex Turnpike. Morello argues that “by inference” the stone wall must have been constructed by some prior owner of the Morello property, but he offers absolutely no explanation for the basis of such an inference. While it is true that the construction and maintenance of a wall or fence, together with maintenance activities, in a disputed area by a party or his predecessor in title might be sufficiently open and notorious to help establish a claim of adverse possession, “where the ownership and installation of the wall is unknown or in dispute and where there is no evidence of it being maintained by either party to the suit, the existence of a barrier, taken alone, will not constitute an open and notorious taking of property sufficient to establish adverse possession over the area which it encloses.” Marciano v. Peralta, 15 Land Court Rptr. 267, 270 (2007), aff’d 72 Mass. App. Ct. 1117 (2008) (unpublished opinion pursuant to Appeals Court Rule 1:28). The testimony offered at trial regarding the stone wall was solely as to its existence, and no solid testimony was offered concerning its construction and maintenance.

The final flaw in Morello’s claim for adverse possession of the disputed area is his failure to clearly show the particular area that he claims he acquired by adverse possession. The perpendicular stone wall was removed by Greally in 2001 so we can no longer see the particular area that Morello claims was enclosed by that stone wall, and even if I were to fully credit the testimony of Mr. LeRoux regarding the position of the stone wall, we cannot be sure that the area enclosed by the stone wall is the same area that Morello describes in his post-trial brief with reference to a 1910 plan which was not even admitted into evidence at trial. Without any sufficiently certain identification of the adversely possessed land, Morello cannot succeed on his claim for adverse possession.

Damage to Morello Property Caused by Greally’s Digging

In July 2007, Greally removed a stump that was located between the two properties. In order to remove the stump, he used a backhoe to dig a hole approximately seven feet deep. While digging the hole, Greally came within eighteen inches of Morello’s house, and he was admittedly digging on Morello’s property at that point. Although it was only necessary to dig down about one foot to remove the stump, Greally continued digging down to a depth of approximately seven feet because he wanted to look at a rock that he had considered removing. He decided not to remove the rock after seeing how large it was and that it came within a foot of Morello’s house. After he was done inspecting the rock, Greally placed several rocks in the hole that he had created and then buried them. He testified that he then graded the area to slope away from Morello’s house and then loamed the area. This digging activity by Greally is what Morello alleges led to water infiltration in his basement.

Elizabeth Buonarosa testified to having water in her basement once during the time she lived at 603 Middlesex Turnpike - as she recalled, there was water somewhere in the middle of the basement, perhaps due to an early thaw or a burst pipe. Morello testified that he had not experienced problems with water in his basement on the side closest to the Greally property prior to Greally’s digging. However, he testified that after that work was performed, he began to experience water problems in the basement in the vicinity of the basement door, which was near the large rock that Greally had dug down approximately seven feet to inspect.

Greally called a construction consultant, Peter DePasa, as an expert witness. Mr. DePasa inspected the Morello property on May 30, 2008, less than a year after Greally’s digging activities. He testified that the property was pitching towards the house, including in the area near the basement access door, and that this was a source of water infiltration. He also testified to other factors contributing to water infiltration. He noted that there was effervescence on the walls - moisture was coming through the walls particularly in areas where the ledge connected to the concrete wall inside the basement. He opined that this effervescence meant that water had been infiltrating for at least ten years. He also noted infiltration and deterioration at the sill level above the top of the foundation wall, and opined that another source of water infiltration was the lack of sealant on the horizontal joint of the foundation wall and the ledge on the inside. [Note 3]

Morello offered no testimony to refute Mr. DePasa’s explanation of the source of water infiltration or the length of time that infiltration had been occurring. I also note that Morello did not offer any testimony concerning the cost to repair the damage allegedly resulting from Greally’s digging activities.

When Greally removed that fence between the two properties in 2001, he believed it was located on his property. He testified that he had informed Morello of his intention to remove and replace the fence and, subsequently, in 2001 he tore it down. Morello also claims that he is entitled to damages to replace the fence. However, as discussed above, Morello has not demonstrated that the fence was constructed by one of his predecessors in title, that he maintained the fence, or that the fence was otherwise appurtenant to the property at 603 Middlesex Turnpike. In addition, Morello did not offer any testimony regarding the cost to replace the fence.

Conclusion

Defendant has not proven that he acquired ownership of the land where the shed is located by adverse possession. Therefore, the shed constitutes a trespass. Accordingly, the shed must be removed or relocated within sixty days of the date of this Decision. In addition, Defendant has not shown that Plaintiff’s digging activities resulted in damage to his property or that Plaintiff was not entitled to remove the fence between the properties in 2001. Accordingly, Defendant is not entitled to any damages for the digging or the removal of the fence. I decline to award surveying costs and filing fees to Plaintiff.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: April 1, 2011