LINDA RUGGIERO and DAVID YEE v. ROSINE CANGE

In this case I am called upon to determine the boundary line between the lands owned by the plaintiffs, Linda Ruggiero and David Yee (“Plaintiffs”), and the defendant, Rosine Cange (“Defendant”). Plaintiffs also seek the removal of any encroachments on their property and seek to enjoin what they allege is the continuing trespass by Defendant onto Plaintiffs’ property.

PROCEDURAL POSTURE

This case commenced August 19, 2008 with the filing of a complaint by Plaintiffs. Defendant filed her Answer on September 15, 2008, and the court allowed a Motion to Amend the Complaint on October 2, 2009. Counsel for Defendant filed a Motion to Withdraw on November 12, 2009, and, after a hearing held on November 17, 2009, the motion was allowed without objection from opposing counsel. In the presence of Plaintiffs’ counsel I took a view of the locus on November 20, 2009; I observed the properties of the Defendant and the Plaintiffs and their surrounding. Defendant failed to participate in this view despite notice.

This case came on for trial on March 11, 2010 in Boston. Defendant failed to appear. As a result of Defendant’s failure to appear at trial, a default was entered by the court against Defendant pursuant to Mass. R. of Civ. P. 55(a) for failure to appear at the duly noticed trial. At trial, court reporter Wendy Thomas was sworn to transcribe the testimony and proceedings. The following people testified, both called by Plaintiffs: plaintiff Linda Ruggiero and licensed professional surveyor Ralph William Reid. At the conclusion of the taking of evidence, I suspended the trial and requested parties file Proposed Findings and Rulings, Proposed Form of Judgment, and Posttrial Memorandum of Law. After these documents were filed post-trial, I took the case under advisement.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and arguments of the Plaintiffs, I now decide the case.

For the reasons given below, I find and rule that: (1) the common boundary line between the Ruggiero-Yee Property and the Cange Property is that which is depicted on the survey plan (“Reid Survey Plan”) titled “Revere, Massachusetts Plan of Land Prepared for: Linda Ruggiero, 207 Bellingham Avenue,” conducted by Reid Land Surveyors, and dated November 17, 2008; (2) Plaintiffs are entitled to have the porch, including its adjacent stairs, landscaping, and bituminous concrete walkway removed from the land owned of record by the Plaintiffs; and (3) the stone wall is located entirely on the Ruggiero-Yee Property; therefore, Plaintiffs may remove the stonewall at their own expense.

FINDINGS OF FACT

The court finds the following facts:

1. Plaintiffs own as tenants by the entirety the property known as 207 Bellingham Avenue, Revere, Massachusetts (“Ruggiero-Yee Property”). The Ruggiero-Yee Property contains a single family dwelling.

2. The Ruggiero-Yee Property was conveyed to Plaintiffs by quitclaim deed from Joseph A. Morgan, Francis M. Doherty, Agnes V. Morgan, and Michael Morgan, dated May 12, 2003 and recorded at the Suffolk Registry of Deeds in Book 31413, Page 120.

3. The northeasterly boundary of the Ruggiero-Yee Property is along Bellingham Avenue, Revere, Massachusetts.

4. Defendant owns the property known as 200 Crest Avenue, Revere, Massachusetts (“Cange Property”). The Cange Property contains a small single family “cottage-type” dwelling.

5. The Cange Property was conveyed to Defendant by quitclaim deed from Brian Sturgeon (“Sturgeon”), dated December 19, 2006 and recorded at the Suffolk Registry of Deeds in Book 40973, Page 250.

6. Sturgeon still currently owns of record a third parcel of adjoining land, known as 205 Bellingham, Avenue, Revere, Massachusetts (“Sturgeon Property”). This was conveyed to Sturgeon by quitclaim deed from Aziza Ibnouzekri and Fatima Ibnouzekri, dated April 28, 2005 and recorded at the Suffolk Registry of Deeds Book 36956, Page 228.

7. The Ruggiero-Yee Property and the Cange Property are abutting parcels along the southwesterly boundary of the Ruggiero-Yee Property and the northeasterly boundary of the Cange Property.

8. The Cange Property and Sturgeon Property share a common boundary along the northeasterly boundary of the Cange Property and the southwesterly boundary of the Sturgeon Property.

9. The record common boundary line between the Ruggiero-Yee Property and the Sturgeon Property is along the northwesterly boundary of the Ruggiero-Yee Property and the southeasterly boundary of the Sturgeon Property.

10. The area of dispute (“Encroachment Area”) is a long, thin, roughly triangular piece of property bordered by Crest Avenue to the south, a stone wall to the southeast, and the common record boundary line between the Ruggiero-Yee Property and Cange Property, as depicted on the Reid Survey Plan, to the northwest. The common boundary line, as depicted on the Reid Survey Plan, and the stone wall extend from Crest Avenue and run approximately forty to forty-one feet until meeting at the northeastern corner of the Cange Property.

11. There items of improvement, apparently associated with the Cange Property and the house existing upon it, that encroach into the Encroachment Area, located on Plaintiffs’ record property. These items, which include portions of the wooden steps, railings, and flat open entry landing leading into the door into the Cange residence, as well as part of a concrete or bituminous walkway, intrude into the Encroachment Area varying distances ranging in measurement from .8 of a foot to 2.8 feet.

12. The height of the stone wall which forms the sideline of the Encroachment Area varies from a height of twenty-five to twenty-six inches to a height of fifteen to sixteen inches.

13. The stone wall, bituminous concrete walkway, and landscaping are of unknown origin.

14. Based on the title documents placed in evidence, and the testimony of the Plaintiffs’ surveyor, Mr. Reid, I find as the record boundary between the Ruggiero-Yee Property and the Cange Property that which is depicted on the Reid Survey Plan. I adopt the Reid Survey Plan as establishing the record boundary between the parties’ properties not only because Defendant failed to appear at tria,l thereby failing to dispute the Reid Survey Plan or to show why I should not adopt it, but also because the evidence Plaintiffs submitted show a proper record title in the location set forth on the Reid Survey Plan.

15. Taking as the record boundary that which is depicted on the Reid Survey Plan, the following encroach on the Ruggiero-Yee Property:

a. The northeasterly portion of Defendant’s open flat wooden landing, which provides access to the door into the Cange residence, as well as the northeasterly portions of the wooden steps leading to that landing on either side of it, together with the handrails along the steps and the lattice work installed on the outside of the landing, facing the Ruggiero-Yee property;

b. Portions of a bituminous concrete walkway of unknown origin along the northwesterly boundary of the Ruggiero-Yee Property; and

c. Landscaping of unknown origin along the northwesterly boundary of the Ruggiero-Yee Property.

16. The stone wall does not encroach on the Ruggiero-Yee Property because, adopting the common boundary line between the Ruggiero-Yee Property and the Cange Property as depicted on the Reid Survey Plan, the stone wall is located entirely on Plaintiffs’ property. Therefore, Plaintiffs own the stone wall and may remove or otherwise deal with it at their own expense.

DISCUSSION

1. Common Boundary Line between the Ruggiero-Yee Property and the Cange Property

Plaintiffs have the burden of proving the boundary line between the Ruggiero-Yee Property and the Cange Property. At trial Plaintiffs offered into evidence the testimony of Ralph Reid’s (“Reid”) who has expertise as a surveyor, examined the record title instruments and plans, and came to the conclusion that the line of record ownership is as shown on the Reid Survey Plan, and that the improvements in controversy are located as shown on that plan. Having no evidence to the contrary, as Defendant failed to appear at trial, and having no reason to doubt Reid’s expertise and evidence, I adopt as the record boundary line between the Ruggiero-Yee Property and the Cange Property that which is depicted on the Reid Survey Plan and proffered by Plaintiffs.

2. Encroachments

Plaintiffs seek the removal of four encroachments on their property; namely, portions of a flat open wooden landing and of its steps, handrails, and associated lattice work; a stone wall of unknown origin; portions of a bituminous concrete walkway of unknown origin; and landscaping of unknown origin.

a. Adverse Possession: Porch, Landscaping, and Bituminous Concrete Walkway

Defendant asserts in her Answer the affirmative defenses of adverse possession, or, in the alternative, a claim for prescriptive easement. As affirmative defenses, Defendant has the burden of proving adverse possession and prescriptive easement. Having failed to appear at trial, Defendant has failed to meet her burden of proof for either of these defenses.

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 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 , 621-622 (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 v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). “Determin[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 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 it has been put.” LaChance v. Rubashe, 301 Mass. 488 , 490 (1938); see also Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (“[a] judge must examine the nature of the occupancy in relation to the character of the land.”) (quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). The claimant must demonstrate that he or she 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 v. First Natl. Bank & Trust Co. of Greenfield, 301 Mass. 488 , 491 (1938).

Acts of ownership must be open and notorious so as to place the true owner “on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Lawrence, 439 Mass. at 421 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)) (internal quotation marks omitted). “To be ‘open’ the use must be made without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)); Foot v. Bauman, 333 Mass. 214 , 218 (1955) (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)).

While the acts of possession must be open, proof of actual awareness on the part of the record owner is not required: “To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.” Lawrence, 439 Mass. at 420 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)); Foot, 333 Mass. at 218 (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)). “There is no requirement that the true owner be given explicit notice of adverse use,” Lawrence, 439 Mass. at 421, and if the use is open and notorious, it is “deemed to place the true owner on constructive notice of such use, and it is immaterial whether or not the true owner actually learns of that use . . . .” Id. Open and notorious use, however, must be continuous. See Kendall v. Selvaggio, 413 Mass. 619 , 624 (2003) (stating that infrequent use does not satisfy a claim for adverse possession). Acts of possession that are “few, intermittent and equivocal” are insufficient to serve as a basis for adverse possession. Kendall, 413 Mass. at 624 (quoting Parker v. Parker, 83 Mass. (1 Allen) 245, 247 (1861)) (internal quotation marks omitted).

i. Porch and Adjacent Stairs

There is in the record no evidence to show when the open landing and the stairs connected to and serving it were built. They looked, at the time of the view I took, and in the photographs submitted in evidence, to be of well more than recent vintage, but, absent proof, I am unable to speculate about the longevity of their presence in the Encroachment Area. Even though Plaintiffs, through their testimony, have not presented any evidence that would disprove Defendant’s theory of adverse possession, the burden is squarely on the Defendant to prove it. The same is true of Defendant’s alternative claim to have accrued by use a prescriptive easement. Having failed to appear at trial and present any evidence in the record, Defendant has failed to meet her burden of proof. As a result, Plaintiffs are entitled to have so much of the open wooden landing, its attached stairs, railings and lattice work as lie within the Disputed Area removed.

ii. Landscaping and Bituminous Concrete Walkway

Plaintiffs also are entitled to have the landscaping and the bituminous concrete walkway removed, both of which are of unknown origin. Once again, the burden rests on Defendant to prove her case of either adverse possession or prescriptive easement, and, having failed to introduce any evidence at trial, Defendant fails to meet her burden of proof.

Furthermore, Plaintiffs have contested Defendant’s affirmative defenses by establishing through the testimony of Linda Ruggiero that the bituminous concrete walkway and landscaping, although of unknown origin, did not exist at the time Plaintiffs acquired their property on May 12, 2003. Linda Ruggiero testified that she first noticed the landscaping in the fall of 2006 and first noticed the bituminous concrete walkway in August of 2007. Without any evidence to the contrary, Linda Ruggiero’s testimony defeats any claim for adverse possession or prescriptive easement. Therefore, Plaintiffs are entitled to have so much of the landscaping and bituminous concrete walkway as lie within the Disputed Area removed from their property.

b. Stone Wall

Plaintiffs are not entitled to have Defendant remove the stone wall for two reasons. First, the common boundary line is as depicted on the Reid Survey Plan. Using this depiction, the stone wall stands fully on Plaintiffs’ property. Second, the stone wall is of unknown origin because there is no evidence in the record that establishes who erected the stone wall, including no evidence showing Defendant built the structure. Plaintiffs may remove the stone wall, or otherwise deal with it in any lawful manner, all at their own expense.

For the reasons given above, I find and rule that: (1) the common boundary line between the Ruggiero-Yee Property and the Cange Property is that which is depicted on the survey plan titled “Revere, Massachusetts Plan of Land Prepared for: Linda Ruggiero, 207 Bellingham Avenue,” conducted by Reid Land Surveyors, and dated November 17, 2008; (2) Plaintiffs are entitled to have Defendant remove from the Disputed Area so much of the open wooden landing, and of its steps, handrails, and associated lattice work, as well as any of the bituminous concrete walkway and landscaping, as lie within the Disputed Area; and (3) the stone wall is located entirely on the Ruggiero-Yee Property; therefore, Plaintiffs may remove the stonewall at their own expense. The judgment I will direct be entered in this case will require the Defendant, after a reasonable amount of time, to remove those items of encroachment from the Disputed Area in a reasonable, lawful, and safe manner of her determination. Confident that Defendant will remove these encroachments as the judgment directs, and not thereafter trespass onto the land of the Plaintiffs, I decline their request for a further permanent injunction. I find no basis in the evidence I credit to award any damages to the Plaintiffs, and so no damages, costs, fees or other monetary award is to be made part of the judgment.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 18, 2011.