MISC 09-416722

May 20, 2011


Trombly, J.


By verified complaint filed November 12, 2009, Plaintiff Theodore J. Lee seeks to establish title by adverse possession to a portion of real property owned of record by Defendants R. Elaine Sullivan, John J. Sullivan, and Rosemary C. Kimball. Defendants filed an answer and counterclaim alleging trespass by Plaintiff. A two-day trial was held on March 29 and 30, 2011. The court heard the testimony of seven witnesses which was reported. Thirty-eight exhibits, some with multiple parts, were entered into evidence. The parties have submitted post-trial memoranda.


On all the testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find the following facts:

1. Plaintiff is the owner in fee simple of land with the buildings thereon located at 49 Garnet Avenue (also called Cataumet Road), in North Falmouth, Barnstable County, Massachusetts. [Note 1] Plaintiff purchased the property at 49 Garnet Avenue from his family, after the family had owned the property for approximately one year.

2. Defendants are the owners of real property located at 43 Garnet Avenue, in North Falmouth, Barnstable County, Massachusetts. [Note 2]

3. The Defendants’ and Plaintiff’s properties lie contiguous to each other.

4. Plaintiff claims title adverse to Defendants in a portion of Defendants’ property consisting of a cobblestone-edged driveway surrounded by arborvitae, shown as “Area Claimed by Plaintiff” in the Decision Sketch attached hereto.

5. Prior to construction of the driveway, including during the year Plaintiff’s family owned 49 Garnet Avenue, Plaintiff’s family members and guests commonly parked their vehicles in front of the house or on the grass located on the southeasterly side of the house, which included a portion of Defendants’ property.

6. On January 25, 1986, Plaintiff entered into an agreement for construction of a crushed seashell-covered driveway. The contract provided for a subsurface using twenty-five tons of base gravel, surface covered by fifteen to eighteen cubic yards of crushed shell, and forty feet of seven-inch by nine-inch used railroad ties to be used as a border.

7. Excavation began in the spring of 1986, and by late summer of 1986, the driveway construction was complete. Construction of the driveway included removing a tree stump, re-grading the area, installing railroad ties, installing a layer of stone topped off by a layer of crushed shell, and resetting the railroad tie border along the edge of the driveway.

8. The initial forty feet of railroad ties were installed on the house-side of the driveway and southern end of the driveway. Sometime after the driveway had been completed, Plaintiff installed an additional forty feet of railroad ties not originally provided for in the contract, including on the right-side of the driveway.

9. Plaintiff’s groundskeeper continuously cared for the driveway, weeding the driveway by hand to remove the grass growing between shells.

10. In or about the mid-1990s, a cobblestone apron was added to the end of the driveway, extending into Garnet Avenue.

11. Improvements to the driveway were made by Plaintiff in 2001, including the resurfacing of the seashell-covered driveway with pea stones and the replacement of the existing railroad ties that were rotting with cobblestone blocks.

12. In terms of length and width, the 2001 resurfacing followed the outline of the existing driveway as constructed in 1986. Installation of the new cobblestone blocks followed the existing outline of the railroad ties as installed by Plaintiff in or about 1986.

13. The 2001 improvements resulted in the enlargement of the turning area on the left side of the driveway (as one enters from the street), within the boundaries of Plaintiff’s property, to facilitate turning on the northwestern side of the driveway.

14. Plaintiff, and later Plaintiff’s landscapers, maintained the grassy area between the driveway and the trees to the right. The grass was mowed weekly, extending to an area approximately three to four feet beyond the trees, and fertilized by Plaintiff.

15. Plaintiff began pruning the trees towards the back of the driveway immediately and to the right of the driveway beginning in the late 1990s.

16. Arborvitae hedge were planted along the three back sides of the driveway by Plaintiff for privacy in 2001.

17. Since 1986 to at least October 2008, Plaintiff’s use of the driveway has been continuous, exclusive, open, and notorious.

18. Defendants did not challenge Plaintiff’s use of the Disputed Area until 2008. By letter dated October 30, 2008, Defendants informed Plaintiff that a recent survey showed that Plaintiff’s driveway and landscaping were encroaching on Defendants’ property and requested that he not remove the surveyor stakes which they caused to be set.

19. Plaintiff confirmed the encroachment through his own survey, conducted on December 4, 2008, but removed the stakes which had been set by Defendants’ surveyor so the driveway could be accessed. Plaintiff did not, however, remove the spikes nailed into the ground of driveway which also delineated the actual boundary.

Adverse Possession

It is well settled that to establish title by adverse possession to land owned of record by another, the claimant must show proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for the statutory period of twenty years. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kendall v. Selvaggio, 413 Mass. 619 , 621-22 (1992); G. L. c. 260, § 21. The burden of proof in an adverse possession claim rests entirely on the person claiming title and extends to all of the necessary elements of such possession. Lawrence, 439 Mass. at 421, quoting Mendoca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). If any of these elements is left in doubt, the claimant cannot prevail. Mendoca, 354 Mass. at 326. [D]etermin[ing] whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific. Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

The element of open and notorious possession is met if the true landowner knows or should have known of the encroachment. Foot v. Bauman, 333 Mass. 214 , 218 (1955). Thus, occupancy of the land conducted in a manner that would reasonably put the true owner on notice is sufficient. Shaw, 8 Mass.App.Ct. at 156; Lyon v. Parkinson, 330 Mass. 374 (1953); see Lawrence v. Town of Concord, 439 Mass. 416 (2003). Permanent improvements or significant changes to the land are more likely to be sufficient to satisfy the elements of adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). Acts of possession that conceal or hide the assertion of a right in the property cannot satisfy open and notorious possession. Endicott v. Haviland, 220 Mass. 48 (1914).

The nature and extent of use required to establish title by adverse possession varies with the character of the land, the purposes for which it is adapted, and the uses to which is has been put. LaChance v. Rubashe, 301 Mass. 488 , 490 (1938); see also Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993), quoting Kendall, 413 Mass. at 624 (A judge must examine the nature of the occupancy in relation to the character of the land). The claimant must demonstrate 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, 34 Mass. App. Ct. at 556, quoting LaChance, 301 Mass. at 491.

In the present case, there is no doubt that Plaintiff has exercised open, notorious, exclusive, continuous and adverse possession of Defendants’ land on which Plaintiff’s driveway and cobblestone border sit. In 1986, Plaintiff laid a driveway comprised of a stone sublayer, topped off with crushed shells, delineated with a border of railroad ties, resulting in the construction of a defined driveway which demonstrated Plaintiff’s intended permanency and is an act consistent with ownership. Furthermore, from that time on, Plaintiff continuously maintained the driveway. Plaintiff made improvements to the driveway, such as the addition of the stone apron in the mid-1990s and resurfacing with pea stones and replacement of the railroad tie border with cobblestones in 2001. Plaintiff’s occupancy of the land on which Plaintiff’s driveway and cobblestone border sit is certainly of the kind normally associated with ownership.

Defendants argue, however, that Plaintiff has not established adverse possession to the whole of the Disputed Area with its current dimensions. Defendants argue that no border was established on the right of the driveway until cobblestones were installed in 2001. However, I credit the testimony of Plaintiff and his groundskeeper, who both stated that the cobblestone border installed in 2001 were laid where previously existing railroad ties had established a demarcated driveway. Therefore, I find that Plaintiff has adversely possessed the whole of the driveway with its current dimensions, including the area on the right of the driveway currently marked by cobblestone blocks and formerly containing railroad ties.

Plaintiff also claims by adverse possession a part of Defendants’ property that extends beyond the cobblestone border of the driveway. With respect to the area surrounding the driveway consisting of arborvitae planted by Plaintiff in 2001, I find that Plaintiff has not established title by adverse possession to that area because the twenty-year statutory period has not been met. Additionally, with respect to Plaintiff’s claim that he adversely possessed the land between the driveway to the trees, and further, approximately six-feet beyond the trees, I find that Plaintiff’s weekly mowing of the grass and cutting of the tree shrubs since 1986 are not acts that sufficiently rise to the level of adverse, exclusive occupancy.

These acts do not necessarily demonstrate that Plaintiff exclusively possessed and treated the area as his own. In fact, the Defendants hired people to cut the grass in the same area from time to time during the statutory period, and also testified that they personally cut the lawn to the right of the driveway. Further, the evidence offered by Plaintiff as to the area of grass mowed beyond the trees is unclear. Courts generally look to a clear line of demarcation to make out a case of adverse possession, otherwise the true owner cannot be considered on notice of a claim of a specific area. See, e.g. Frigoletto v. Pirro, 15 LCR 1671 (2007). In the instant case, Plaintiff’s occasional mowing of grass of area beyond the trees, particularly where Defendant also mowed the lawn and the exact confines of Plaintiff’s actions are not evident, do not support Plaintiff’s claim that he adversely possessed the area beyond the driveway to the trees.


Accordingly, I find that from 1986 to 2008, Plaintiff openly, notoriously, exclusively, and continuously possessed a portion of Defendants’ land for the requisite statutory period sufficient to establish a claim for adverse possession, which includes the current dimensions of Plaintiff’s driveway and the width of the cobblestones, shown as “Area Acquired by Adverse Possession” in the Decision Sketch attached hereto. I find specifically, however, that Plaintiff has not acquired any land beyond the southerly line of the driveway by adverse possession. While Defendants had actual knowledge of the acts of asserted ownership undertaken by Plaintiff, no challenge was made by Defendants until 2008, twenty-two years after the driveway was first laid.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: May 20, 2011

Decision Sketch

Decision Sketch


[Note 1] Plaintiff holds title by virtue of two deeds recorded at the Barnstable County Registry of Deeds: (1) dated January 9, 1986, and recorded Book 4884, Page 286, (2) dated November 1, 1996, recorded at Book 10501, Page 24.

[Note 2] Defendants hold title by virtue of a deed dated January 12, 2007, and recorded at the Barnstable County Registry of Deeds at Book 21737, Page 12.