MISC 06-334830

July 15, 2011

ESSEX, ss.

Scheier, C.J.


The original Plaintiff, Walter Pilkons, initiated this action on December 12, 2006, by filing a complaint against his abutting neighbors, Defendants Natalino and Kendra Mendonca (Mendoncas). In his complaint, Plaintiff sought a declaration that he had acquired title by adverse possession to a strip of land (Driveway Area) that forms a portion of the paved driveway that services his property. The Driveway Area is located on abutting property owned of record by Defendants. Plaintiff also alleges that Defendants trespassed on the Driveway Area when, in 2006, they excavated part of it and erected a fence along the parties’ common record boundary line. The parties do not dispute the location of their record common boundary.

On December 12, 2008, Plaintiff moved for summary judgment. The court held a hearing, at which all parties were heard and subsequently issued an Order Denying Motion for Summary Judgment due to the existence of disputed material facts. On October 4, 2009, original Plaintiff, Walter Pilkons, passed away. Consequently, on January 21, 2010, his son, Paul E. Pilkons, filed a Motion to Substitute Party, which the court allowed on February 10, 2010. [Note 1]

A two-day trial was held on May 14 and June 21, 2010. At trial this court heard the testimony of Plaintiff and both Defendants; Maria Collins, who lived across the street from the Pilkons property for forty-two years; her son George Collins who lived at the same address for twenty years; Gregory Sowyrda, a neighbor of both the Mendoncas and Plaintiff; and Mariellen Fidrych, the former owner of the Mendonca property. Eighteen exhibits were entered in evidence, including a stipulation of facts. On August 3, 2010, this court took a view of the parties’ properties in the presence of counsel. Both parties submitted Proposed Findings of Fact and Proposed Rulings Law on August 27, 2010. Based on the credible evidence, the stipulation of facts, and reasonable inferences drawn therefrom, aided by the court’s observations at the view of the parties’ properties, this court finds the following material facts:

1. The substituted Plaintiff, Paul E. Pilkons, in his individual capacity and as Trustee of 19 Olsen Road, Peabody Realty Trust, became the current owner of the property located at 19 Olsen Road, Peabody (Pilkons Property) after his father, Walter V. Pilkons died on October 4, 2009.

2. Walter V. Pilkons had acquired title to the Pilkons Property together with his wife, Elaine L. Pilkons, by deed dated September 13, 1968. Walter Pilkons transferred title to the Pilkons Property to himself as trustee of a nominee trust by deed dated May 23, 1994.

3. Defendants Natalino Mendonca and Kendra Mendonca own the abutting property located at 17 Page Street, Peabody (Mendonca Property). The Mendoncas acquired title from Mariellen H. Fidrych by deed dated July 22, 2004.

4. Mariellen Fidrych is the daughter of Richard Higgins and Rosalie Higgins who purchased the Mendonca Property on or about May 9, 1967. Ms. Fidrych grew up with her family at the Mendonca Property. Rosalie Higgins died on October 11, 1995, and Richard Higgins died on July 15, 2004, at which time Ms. Fidrych became the owner of the property.

5. The Pilkons and the Mendonca properties share a common property line.

6. The disputed property at issue, identified as Driveway Area, is approximately 62 feet long and is 6.80 feet wide at the point nearest the street, narrowing to approximately 2.40 feet wide at its opposite end.

7. The Driveway Area is included within the record meets and bounds description of the Mendonca Property.

8. The Driveway Area was used as part of a paved driveway first installed by Walter and Elaine Pilkons shortly after their purchase of the Pilkons Property.

9. Plaintiff has lived at the Pilkons Property continually since his birth in 1967 to present date, excepting a three year period between 1996 and 1999.

10. In November, 1988, North Shore Survey Corporation staked the corner of the Mendonca Property, at the request of the Higginses, who then owned the Mendonca Property. The southerly corner of the Mendonca Property (where it meets the Pilkons Property on Olsen Road nearest to the street) was set with a p.k. nail on the Driveway Area. Another p.k. nail was set along the southwestern common boundary line.

11. Sometime in 2004, following a survey of their property, the Mendoncas learned that the Driveway Area encroached on their land. Shortly after, and at the direction of the Mendoncas, their surveyor marked the boundary of their property line with a spray paint dot which is within the Driveway Area. Thereafter, the parties made efforts to resolve their boundary dispute during the years of 2005 and 2006 without reaching agreement.

12. Beginning on September 20, 2006, the Mendoncas caused the Driveway Area to be excavated and removed. On or about September 25, 2006, they caused to be removed a rock wall that existed adjacent to the Driveway Area and caused a fence to be erected at or near the parties’ common boundary line.

13. There currently is a telephone pole that has been in place adjacent to the end of the driveway servicing the Pilkons Property at Olsen Road since at least 1969. [Note 2]

14. The Pilkons’ paved driveway existed in the same location relative to the location of the adjacent telephone pole depicted in the photographic evidence until the 2006 excavation by the Mendoncas.

15. While the Pilkons’ driveway, including the Driveway Area, has been resurfaced several times since 1969, the location and dimensions of it did not change until the Mendoncas’ 2006 excavation. [Note 3]

* * * * * * *

It is well-settled 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). The burden of proving each of those elements rests on the party asserting such possession. Mendonca v. Cities Service Oil Company of Pennsylvania, 354 Mass. 323 , 326 (1968). The parties claiming adverse possession may tack their predecessor in title's adverse possession to their own in order to satisfy the prescriptive period of twenty years. Frost v. Courtis, 172 Mass. 401 , 404 (1899)

This court finds and rules that Plaintiff has met his burden of proof with respect to his claim of adverse possession of the Driveway Area. Based on the testimony and the photographic evidence, this court finds that the Driveway Area was in place as early as 1969. Furthermore, since the area has been used as a driveway by Plaintiff and his predecessors-in-title until the 2006 excavation, Plaintiff has satisfied his burden to show actual possession for the requisite twenty year period.

For a use to be exclusive it “must encompass a ‘disseisin’ of the record owner…this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). Here, the Driveway Area is part of the driveway that services the Pilkons Property exclusively. It has been used exclusively by Plaintiff, and his predecessors-in-title, and their invitees. The driveway was not shared, nor was it used by any other party from 1969 until 2006.

The requirement that the use be “open and notorious” is intended to provide the true owner of the land an opportunity to defend his or her title. Foot v. Fauman, 33 Mass. 214 , 218 (1955). “To be open the use must be made without attempted concealment.” Lawrence v. Town of Concord, 439 Mass. 416 , 420 (2003) quoting from 2 American Law of Property § 8.56. Here, the Driveway Area was paved and in use since 1969. LaChance v Rubashe, 301 Mass. 488 (1938) (holding that erecting a stone wall, building a hen coop and removing a fence constituted open and notorious uses); Masciocchi v. Utenis, 3 Mass. App. Ct. 1121 (2009) (holding that planting a garden and heaping soil on the disputed land was an open and notorious use on a small strip of land in urban setting); BTR Ventures v. Raptopoulos, 18 LCR 73 (2010) (holding that use of a driveway to access property from 1943 to 1984 satisfied the open and notorious element). Although Defendants were unaware of the Driveway Area’s encroachment on their deeded property until 2004, “the reference to knowledge in [2 American Law of Property § 8.56] pertains to the owner's knowledge of the adverse possessor's use of the property, not the owner's knowledge of ownership.” Lawrence v. Town of Concord, 439 Mass. at 420. Since Plaintiff’s use was not concealed in any way, Plaintiff satisfies the open and notorious requirement.

“The essence of nonpermissive use is lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). Whether a use is adverse is context specific. LaChance v. First Nat'l Bank & Trust Co., 301 Mass. at 490 (“The nature and the extent of occupancy required to establish a right by adverse possession varies with the character of the land, the purposes for which it is adapted, and the uses to which it has been put”). Here, Plaintiff (and his predecessors-in-title) did not have permission from Defendants (and their predecessors) to use the Driveway Area, and the use itself was clearly adverse to Defendants’ ownership.

Moreover, it does not matter whether Plaintiff meant to take adverse possession since courts have “long held that state of mind of a claimant is not relevant to a determination of whether the possession of land is nonpermissive.” Totman v. Malloy, 431 Mass. at 146. Instead, a use is adverse if the claimant’s actions establish “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.” LaChance v. First Nat'l Bank & Trust Co., 301 Mass. at 491. In the present case, Plaintiff, and his predecessors-in-title, used the Driveway Area as part of the sole access to their property since 1969 as if they were the actual owners.

Defendants contend that Plaintiff’s use fails to satisfy the requisite twenty year period because the time period for adverse possession did not start until the driveway was allegedly expanded in 1988, and ended when the Mendoncas surveyed their property in 2004. However, the only evidence Defendants presented to establish that the Driveway Area first encroached on the Mendonca Property after it was expanded in 1988 is an affidavit of Mariellen Fidrych. Yet, during her trial testimony Ms. Fidrych could not remember the year of the alleged re-pavement until Defendants’ attorney showed her the affidavit, and she was unsure whether the driveway was expanded. In contrast, Plaintiff, who is the party with the burden of establishing the elements of his adverse use and its location, presented credible photographic evidence that the distance between the driveway and nearby telephone pole was consistent from 1969 to 2006. The photographic evidence was corroborated by credible testimony of several witnesses. Thus, this court concludes the dimensions of the Driveway Area remained substantially unchanged from 1969 until the 2006 excavation.

Also, the time period for adverse possession did not end with the Mendoncas’ 2004 survey because “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.” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 (1996). Instead, to break the running of the adverse possessory period, Defendants had to enter the Driveway Easement “with a clearly indicated purpose of taking possession.” Id. at 543 quoting from 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975). After the 2004 survey, the only mark on the Driveway Area was a small dot of spray paint indicating the surveyed property line. Id. (holding that that conducting a survey and placing wooden stakes around the property is insufficient to interrupt adverse possession); Geilla v. Trainor, 14 LCR 289 , 291 (2006) (holding that consultation with attorney after conducting a survey and sending a letter to adverse claimants does not establish possession sufficient to interrupt adverse possession). Thus, the clock for adverse possession was not interrupted in 2004. Even if the time period had stopped running in 2004, as urged by Defendants, Plaintiff still satisfies the twenty year requirement because Plaintiff and his predecessors-in-title had continuously used the Driveway Area since 1969. The adverse possession use had ripened in 1989.

Since this court has found that Plaintiff established title to the Driveway Area, it follows that Defendants trespassed on the Pilkons property when they excavated the Driveway Area, removed the wall, and erected a fence in 2006 without permission or right. “When one without right attempts to appropriate the property of another…a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done.” Szathmary v. Boston & A. R. Co., 214 Mass. 42 , 44 (1913).

No judgment will issue at this time. Plaintiff has ninety days from the date of this decision to have prepared a survey plan depicting the Driveway Area. The plan will be attached to the judgment that issues, and together they may then be recorded with the Registry of Deeds. When the plan is complete, Plaintiff shall deliver a copy to Defendants for their review and also file a copy with the court, certifying delivery to Defendants. Defendants shall have fourteen days from their receipt of the plan to file any objections they may have to the manner in which the Driveway Area is dimensioned and shown the plan. If the court does not receive any written objection within the fourteen day period, a judgment will issue. If there is an objection, the court will review the parties’ submissions and determine whether the plan is accurate. The costs of preparing and recording such plan shall be Plaintiff’s responsibility.

In addition, when judgment issues, it will provide that Defendants must remove the fence they have installed, restoring the ground below to a reasonable condition. Finally, when Plaintiff files a copy of the survey plan with the court, he shall also file an estimate from a contractor of his choosing, setting forth the cost of repairing and replacing the portion of the Driveway Area that was removed by Defendants. Defendants shall be responsible for the payment of that amount to Plaintiff in the timeframe set forth in the judgment. No further damages or attorneys’ fees will be awarded.

Karyn F. Scheier

Chief Justice

Dated: July 15, 2011


[Note 1] Hereafter, Paul Pilkons is often referred to as “Plainitff.”

[Note 2] Exhibit I is a photograph which depicts two boys on a bike in the Pilkons front yard as well as the telephone pole at the end of the Driveway Area. The year in which the photograph (Exhibit I) was taken is established by both the testimony of the ages of the children in the photograph and by notations and development dates marked on the reverse side of the photograph. The was corroborating testimony that the location of the telephone pole has not changed over the years.

[Note 3] Although Defendants argue the dimensions of the Driveway Area increased as to encroach on the Mendoncas property in 1988, the weight of evidence in this case establishes otherwise. Documentary evidence including the photographs of the Driveway Area as well as the testimony of George and Maria Collins persuade the Court that the location and dimensions of the Driveway Area remained unchanged until the 2006 excavation.