At issue in this case is the plaintiff, Angela Shashoua's, claim to ownership (by adverse possession) or the right of use (by prescriptive easement) of a portion of defendant Karen Zien's abutting house lot, the loss of which would make that house non-conforming.
The parties are neighbors in Brookline and, prior to this dispute, the best of friends. Ms. Zien lives at 178 Tappan Street on the downslope of a small hill. Ms. Shashoua lives directly behind her, at the top of the hill, on the property numbered 176. Both were once part of a single property, subdivided into these two lots by ANR plan in 1962. Both houses pre-date the subdivision.
Both the Shashoua lot and the Zien lot are small and the steep topography makes their usable space even smaller. The most "usable" is the relatively flat area between the two houses, in front of Ms. Shashoua's and behind Ms. Zien's. Part of this area is owned by Ms. Shashoua, part by Ms. Zien. The record boundary between the lots, placed in that location by their then-common owner to conform with zoning requirements, is 30 feet behind Ms. Zien's home (the minimum required rear yard setback), and a bit more than 20 feet in front of Ms. Shashoua's (the minimum front yard setback).
The area Ms. Shashoua claims is approximately half of Ms. Zien's required setback - the area between the base of the trunks of a row of hemlock trees behind the Zien house (planted there by the prior owner of the Zien home to give the house privacy, not to mark a boundary) and the record boundary line. It is approximately 25 to 27 feet wide and 12 to 15 feet deep - seemingly small, but nonetheless of consequence. It is critical to Ms. Zien because, as noted above, without that land her house becomes non-conforming. It matters to Ms. Shashoua because she believes her activities over the years have made that area part of her front yard and, beginning in late 2003 (concluding in June/July 2004), she and her late husband installed a patio, a shrubbery bank, and a small fish pond (part of a major re-landscaping of their property) in places that encroach, in part, over the record boundary line. See Ex. 1, attached. [Note 1]
Ms. Shashoua contends that her activities in the disputed area were actual, open, notorious, exclusive, adverse, and continuous for more than twenty years and thus sufficient to grant her the title and/or easement she seeks. Ms. Zien not only disagrees, but points to the parties' November 3, 2003 agreement regarding the Shashouas' 2003/2004 landscape work. That agreement is contained in two documents (Trial Exs. 6 & 7), drafted, signed and notarized by the Shashouas, which they gave to Ms. Zien in response to her concern that parts of that work might encroach on her property. In relevant part, the agreement states that all of the landscape and other improvements would be done "with the understanding that all the boundaries in existence at present would remain unchanged." Agreement (Nov. 3, 2003) (Trial Ex. 7). Ms. Zien understood this as referring to the record boundary line. Ms. Shashoua contends that the reference was not the record line, but rather to the boundaries as she believed them altered by her previous activities (i.e., by adverse possession). [Note 2] She concedes, however, that she said nothing of this to Ms. Zien. In any event, at the least, the November 3, 2003 documents constitute the parties' agreement that the boundary lines would continue as they were as of that date and would be unaffected by the new work. Thus, at best, Ms. Shashoua's adverse possession and prescriptive easement claims must be judged by her activities prior to November 3, 2003. [Note 3]
The case was tried before me, jury-waived. Based upon the testimony and documents admitted at trial, my assessment of the credibility, weight, and inferences to be drawn in light of that evidence, and as more fully explained below, I find and rule that Ms. Shashoua has not shown either adverse possession or a prescriptive easement of any portion of the disputed area. Her claims are thus DISMISSED in their entirety. Ms. Zien's counterclaim for injunctive relief, directing the removal of Ms. Shashoua's 2003/2004 and other encroachments over the record boundary line, is ALLOWED. Confirming my ruling at trial at the conclusion of the evidence, Ms. Zien's counterclaim for monetary damages is DISMISSED for lack of proof of monetary loss.
The Legal Standard
"Title 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). Such use must be continuous or uninterrupted during the statutory period. See Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) (use by owner of record during statutory period breaks continuity of adverse claimant's possession and vitiates claims). "All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, the acts of the wrongdoer are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof of an actual occupancy, clear, definite, positive, and notorious." Cook v. Babcock, 65 Mass. 206 , 209-10 (1853). "If any of these elements is left in doubt, the claimant cannot prevail." Mendonca, 354 Mass. at 326 (internal citations omitted).
The elements required to establish a prescriptive easement are identical to those for adverse possession except that the use need not have been exclusive. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007); Boston Seaman's Friend Soc'y, Inc. v. Rifkin Mgmt. Inc., 19 Mass. App. Ct. 248 , 251-52 (1985). Again, the burden of proving that each of the required elements has been met is on the claimant, and "clear proof' is necessary. Boothroyd, 68 Mass. App. Ct. at 43-44.
In this case, as in most, the critical elements at issue are whether there was actual use by the claimant, whether that use was adverse or with permission (actual or implied), and whether it continued for twenty years or more.
"As to actual use, a judge must examine the nature of the occupancy in relation to the character of the land. Did the actor make 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 v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (emphasis added; internal quotations and citations omitted). "[T]he nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right..." Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004); see also Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808) ("To constitute a disseisin of the owner of uncultivated lands by the entry and occupation of a party not claiming title, to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title; otherwise a man may be disseised without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seisin has been interrupted.").
Constructing buildings, installing paving, erecting a fence or other physical enclosure, and making other similar permanent changes to the land are generally recognized as sufficient acts of possession so long as they are non-permissive. See LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490-92 (1938). Particular acts within an enclosure or other physical separation may be sufficient depending upon what, how extensive, and how continuous they are. See Wulsin v. Bainton, 80 Mass. App. Ct. 1106 , Mem. and Order Pursuant to Rule 1:28 (Sept. 13, 2011) (installing equipment and other facilities; parking cars, boats and campers; taking and stowing firewood; keeping goats and horses; paying taxes; and engaging in regular mowing, planting, and recreational sports activities over a forty-year period; all within a clearly marked and set off border, found sufficient). Acts of possession which are "few, intermittent and equivocal" are not sufficient. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (internal quotations and citations omitted); see also Cook, 65 Mass. at 210 ("[A]cts must not be merely occasional, partial or temporary in their nature"). As noted in the court's discussion in Peck, supra, assessing (and rejecting) the defendant-claimant's claim that his actions met the adverse possession test (i.e., "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"):
The defendant made no permanent improvements on the lot, like the stone walls in LaChance [v. First Nat'l Bank & Trust Co., 301 Mass. 488 (1938)] and Kershaw [v. Zecchini, 342 Mass. 318 (1961)], the rock garden and rip-rap in Lyon [v. Parkinson, 330 Mass. 374 (1953)], the septic tank in Collins [v. Cabral, 348 Mass. 797 (1965), or the house in Kershaw. He did at various times put a picnic table, lounge chairs, a swing, a sandbox, and clotheslines on the lot, but these items were not attached to the land and would be and were removed with ease. Nor did the defendant make any significant changes to the land itself, like the filling in LaChance, the construction of the driveway in Masa Builders [Inc. v. Hanson, 30 Mass. App. Ct. 930 (1991)], or the transformation of whole tree- and brush-covered parcels into lawns, as in Lyon, Collins, Shaw [v. Solari, 8 Mass. App. Ct. 151 (1979)], and Lebel, or cleared areas, as in Kershaw and Shaw. Nor did he utilize the land as a parking area for automobiles or boats, as in Shaw, Lebel and Masa Builders. Nor did the defendant ever pay taxes on the lot, as did the predecessor of the successful adverse possessor in Kershaw.... To be sure, the defendant did engage in a few activities that courts have counted toward adverse possession: building a henhouse (LaChance and Shaw), discouraging trespassers (Lyon), and holding family picnics (Collins and Lebel). In those cases, however, the activities were associated with others which together showed "control and dominion."
Peck, 34 Mass. App. Ct. at 556-557.
"To prove the use to be adverse, it is not sufficient to show an intention alone to claim [the area] as of right, but that intention must be manifest by acts of clear and unequivocal character that notice to the owner of the claim [of right] might be reasonably inferred." Houghton v. Johnson, 71 Mass. App. Ct. 825 , 842 (2008) (quoting L. Jones, A Treatise on the Law of Easements, § 285 at 235 (Baker Voorhis & Co., New York City (1898)). [Note 4] (emphasis added). Such acts of ownership must be sufficiently open and notorious to give notice "to all the world ...of an adverse claim of title." Phipps v. Crowell, 224 Mass. 342 , 343 (1916). While the record owner's actual knowledge of such use is not required, the claimant must show that his acts were such that the owner should have known of such use. Foot v. Bauman, 333 Mass. 214 , 218 (1955).
Permission by the landowner, whether express or implied, negates the claimant's adversity. Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). "Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership." Totman v. Molloy, 431 Mass. 143 , 145 (2000) (internal quotations and citations omitted). Where there is a "special relationship" between the parties, or the use began with permission, there is an additional burden on the claimant "to show by clear evidence that the use has shifted at some point from permissive to adverse, so as to put the owner on clear notice that he should take steps to protect his rights." Begg v. Ganson, 34 Mass. App. Ct. 217 , 221 (1993). See also Lawrence v. Concord, 439 Mass. 416 , 424 (2003) (noting, in that case, that the town had not given the claimant permission to occupy the property).
Finally, the acts must continue, uninterrupted, for twenty years or more. While "continuous use does not necessarily mean constant use," the claimant must establish a use that is regular throughout the statutory period. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870).
In sum, the key inquiry is whether "the nature of the changes made upon the property during a long course of years constituted notice to all the world of an adverse claim of title," LaChance, 301 Mass. at 491, or whether they were sufficient "to give either actual or constructive notice to the owner that an adverse claim to his land was being advanced and maintained." Id. at 492. "From the standpoint of the true owner, the purpose of the various requirements of adverse possession - that the non-permissive use by another be actual, open, notorious, exclusive and adverse - is to put him 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." Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).
Facts and Analysis
These are the facts as I find them after trial.
William and Mary Griffin ("the Griffins") were the original owners of both the Shashoua and Zien properties, which started as a single lot. The Griffins subdivided the property in 1962, creating a "front" lot (Lot B; 178 Tappan Street, currently owned by Ms. Zien) and a "back" lot (Lot A; 176 Tappan Street, currently owned by Ms. Shashoua). The boundary line between them was drawn to make the lots conforming -- 30 feet behind what is now the Zien house; 20 feet in front of what is now Ms. Shashoua's. [Note 5] The two houses pre-date the subdivision.
The Shashoua property has a narrow, 12-foot wide strip on its eastern edge to give it frontage on Tappan Street, and its driveway has been built on this strip. The Zien lot has an express footpath easement over that strip for access to the eastern side of the Zien house and back yard, [Note 6] and a second "footpath" easement along the western edge of the Shashoua property (stairs have been built there) for access to the Zien lot's far rear yard, otherwise difficult because of the steepness of the hill. [Note 7] For its part, the Shashoua property has permission to park one car at the beginning of its driveway (permission is required because the area is part of the Zien lot's footpath easement), [Note 8] and a footpath easement of its own over the back eastern corner of the Zien lot on which a stone walkway has been built leading to the front door of the Shashoua house. [Note 9] The significance of these express easements with respect to the parties' later actions, particularly on the issue of permission in the disputed area, is discussed below. [Note 10]
After the subdivision, the two lots subsequently were sold; 178 Tappan Street to Charles and Penelope Beye ("the Beyes") on March 2, 1967, and 176 Tappan Street to Ms. Shashoua and her late husband Victor [Note 11] on April 11, 1967. On September 2, 1976, the Beyes sold #178 to Ms. Zien and her then-husband Jim. [Note 12]
For three years prior to their purchase (1964-67), Mr. and Ms. Shashoua rented #176 from the Griffins. During that time, the Griffins planted several hemlock trees along the back of #178 to give its rooms privacy from #176. [Note 13] The trees were also placed in that particular location, rather than further back on the lot or along the lot line itself, to minimize their shade and other impact on the now-Shashoua parcel. [Note 14] Ms. Shashoua, a tenant at the time, planted crocuses and other bulbs in front of #176 to give the area color. Some may also have been planted on #178. Certainly some spread in that direction. Neither this nor any of Ms. Shashoua's other activities during her rental period can count as "adverse acts" since both #176 and #178 were owned by the Griffins during the entirety of that time. [Note 15]
What happened thereafter, when it happened, and where, was the subject of much testimony, highly disputed, the "where" and its associated events particularly so. Ms. Shashoua and her witnesses professed a certainty of location that, in many instances, I do not find supported by the evidence. The area between the two homes is small and crossed by the parties' express easements. See Ex. 1. Ms. Shashoua, for example, referred to the disputed space as "the sunny area" and spoke of things she did to take advantage of the sun, contending - on that basis - that they occurred on Ms. Zien's side of the record boundary. But the photographic evidence shows bright sun on both sides of the record boundary beginning within a few feet of the Shashoua house, leading me to conclude that much of what Ms. Shashoua recalls as occurring in the disputed area likely occurred either on her record property or, to the extent on the Zien property, within the Shashoua's express easement over that property. [Note 16] Moreover, the two express easements that bracket the disputed space, Ms. Shashoua's to her front door and Ms. Zien's to the far rear of her property, ensured that both the Shashouas and the Ziens were frequently in the general area, Ms. Zien with the opportunity to observe and the Shashouas either doing things they were entitled to do or reasonably seen as doing so, not making an obvious adverse claim.
The relevant time period divides into two sections. The first is from April 1967 (the date of the Shashouas' purchase) to 2003/2004 (the date of the landscaping that triggered the November 2003 agreement); and the second from the landscaping to the time this lawsuit was filed. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n.8 (1996) (filing of complaint to establish title immediately interrupts adverse possession of that land). I begin with 1967-2003.
After buying #176 in April 1967, Ms. Shashoua and her husband began to improve its front yard. They began with plantings around the foundation of their house (all within the record boundary of their land) and, over time, along the stone walkway to their driveway (either on their record land or within their express easement). Ms. Shashoua claims also to have regularly put plants under or near the hemlock trees on the now-Zien property ("perimeter plantings" as she characterized them), but I am dubious of this. Far from the "3 or 4 feet" of perennials, flowering broom, helenium, azaleas, hydrangea and lilies she claims to have planted under or near the trees, [Note 17] I find it far more likely that the plantings in this area were either in her easement (see, e.g., Ex. 2) or, to the extent under or near the hemlocks, soon sparse and quickly dead. When pressed at trial, Ms. Shashoua admitted that the plants near the hemlocks "didn't do so well" because of the soil there and "often had to be replaced." Moreover, they and the grass she attempted to grow were affected by grubs.
This lack of obvious plantings in the disputed area is corroborated by Ms. Zien's testimony (who, despite being in the area on a regular basis, could not recall seeing any plantings near the hemlocks), by the fact that none of them are shown on the "existing conditions" plan created by Ms. Shashoua's landscape architect in October 2003 (Ex. 2), and by the further fact that anything previously existing in that area was roto-tilled and discarded, showing its lack of permanence and value. [Note 18] Certainly there was grass in front of the Shashoua house, extending partway onto the Zien lot, with crocuses scattered throughout the grass, but there was nothing significant and nothing in the way of plantings that signaled an assertion of ownership. [Note 19]
Of significance is what the Shashouas did not do during this time period. They did not install a fence, a wall, a shed, a patio, a walkway, or any permanent structure of any kind. They did not pay taxes, ever, on any portion of the disputed land, all of which have been paid by Ms. Zien. They never told Ms. Zien they considered the disputed area to be theirs. They never told Ms. Zien to keep off it. To the contrary, the patio they did construct was on their record property, on the other side of their front walkway from the disputed area. See Ex. 2. It was on this patio that they gathered and entertained when they were outside, including when Ms. Zien came to visit.
The Shashouas' other activities in the disputed area prior to 2003 can quickly be addressed. None is sufficient to constitute an adverse claim.
Ms. Shashoua testified that she would occasionally put a blanket in the "sunny area" for her children and grandchildren to lay on. I find this was likely on her record property but, even if not, was neither "adverse" nor sufficiently continuous either by itself or in conjunction with her other activities. As Ms. Shashoua conceded, the children generally played elsewhere since the total area in front of her house, both her land and the Ziens', was not large enough to do anything except sit (the play area was the slope behind her house and elsewhere in the neighborhood).
Ms. Shashoua's late husband and son would occasionally mow whatever grass existed in the disputed area, but this was done at the same time as they mowed their own grass and, fairly viewed, was a courtesy to the Ziens rather than evidence of an adverse claim - the equivalent of shoveling a short section of a neighbor's walk while shoveling yours, and surely not clear evidence of an "adverse claim" when the parties involved were close friends. There was also not much grass to mow. As Ms. Shashoua conceded, neither grass seed nor sod long survived anywhere near the trees.
The Shashouas occasionally trimmed the branches of the hemlocks and weeded underneath, but so did the Ziens - both with the goal of ensuring the health of the trees (they provided privacy to both houses) and maximizing sunlight in the flat area for their mutual benefit. [Note 20]
When Ms. Shashoua first bought her house, she used a rake to smooth out "bumps" in the area in front, some of which may have been over the record line. But this was a single activity, done with minor effort (all the work was by hand). It was soon over, and not repeated.
The Shashouas had an underground sprinkler system in front of their house whose spray may have reached over the record line. But it is unclear if any of its sprinkler heads were in the disputed area. Even if they were, it is clear from the testimony at trial that they could not readily be seen, even by those looking for them. Ms. Zien, who was in that area regularly going to or from her far back yard, to or from the Shashouas' house, or in the area gardening, never saw them. [Note 21] Neither did Ms. Shashoua's landscape architect when she did her October 2003 plan of the conditions existing at that time (Ex. 2). Even Ms. Shashoua conceded that the sprinkler heads were so hidden that lawn mowers regularly nipped them off. Moreover, the system itself was of such little permanence and value that it was ripped up and discarded in the 2003/2004 landscaping.
There was reference to a picnic table, but it was unclear if the table was ever on the disputed area. If so, it did not stay there.
Ms. Shashoua had dogs who, when she did not walk them, would allow to wander in the area between the houses. [Note 22] But they were small animals, not there long and, so far as the record shows, were never penned, tied, or kenneled in the disputed area.
When Ms. Shashoua's sons had their bar mitzvahs, a tent was pitched in the flat area between the houses. Part of the tent encroached over the record boundary since it would not fit otherwise. The Beyes (who owned the Zien property at the time) raised no objection to the encroachment, likely allowing it as a courtesy to a close friend and neighbor. Indeed, they attended the bar mitzvahs.
When construction work was done on the Shashoua house, the workers put materials in the flat area. As the pictures show, those materials were placed either entirely, or almost entirely, on the Shashouas' record property and removed as soon as possible. Ms. Shashoua testified that she herself directed them to be removed because they were a visual eyesore when viewed from Ms. Zien's windows.
In sum, whether viewed singly or in conjunction with each other, none of these acts amount to an adverse claim sufficient to meet the tests set forth above. They were sporadic acts, there and gone quickly. Most are classic instances of "neighborly accommodation" between friends that, fairly viewed, can only be seen as permissive. See Jones on Easements s.289, p. 238. They are not, either singly or in conjunction, "acts of [such] clear and unequivocal character that notice to the owner of the claim [of right] might be reasonably inferred." Houghton, 71 Mass. App. Ct. at 842 (internal quotations omitted). This is particularly so because the type of structures and activities to be expected from someone treating an area as their own (in this case, the Shashouas' patio, table and chairs where the adults gathered and outdoor entertainment took place) were elsewhere. See Ex. 2. As Ms. Shashoua herself conceded, prior to the 2003/2004 re-landscaping of her lot, whenever she entertained Ms. Zien outside, she did so on her then-patio. Had she put her patio, table and chairs in the disputed area and repeatedly entertained Ms. Zien there, the case might have a different resolution.
This lack of "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 (1993), prior to 2003 is evidenced by the state of the disputed area in October of that year. See Ex. 2. As Ex. 2 shows, there was nothing in the disputed area at that time aside from two small trees on one side, so unimportant that they were discarded in the re-landscaping. [Note 23]
Ms. Shashoua's re-landscaping began in the fall of 2003 when she retained a landscape architect. As noted above, that architect drew up a plan that showed the property as it then existed and contained directions on which plantings and structures would remain in place, which would be re-located, and which would be demolished or discarded. Ex. 2. Before beginning, Ms. Shashoua discussed her plans with Ms. Zien, who was worried that some of its installations might encroach on her land. To address that concern, Ms. Shashoua and her husband did two things. First, they drafted, signed and notarized an agreement that all of their "improvements" would be done "with the understanding that all the boundaries in existence at present will remain unchanged." Trial Ex. 7. Second, they assured Ms. Zien that everything being installed in the yard between the two homes could easily be removed if necessary (the patio stones were set in stone dust, not concrete).
With those assurances, Ms. Zien raised no objections and the work proceeded without a formal survey. This included the installation of the stone patio, the fish pond, a new underground sprinkler system, and a large quantity of new, enriched soil in and around the hemlock trees that, for the first time, allowed hardy shrubs to survive and flourish in that location (the new shrubbery bank). Ms. Zien believed that the reference to "all the boundaries in existence at present" meant the record boundaries. She believed this because she and Ms. Shashoua were holding plot plans to their properties at the time of these discussions. Ms. Shashoua contends otherwise, arguing her belief that the reference was to the boundary line as altered by her prior activities, i.e. by adverse possession. She admits, however, that she did not say so. I need not and do not decide who is correct because it is not material to my decision in this matter. [Note 24] At the least, the agreement "froze" the boundary line as of November 2003 since it explicitly states that the new work would not change that line in any way. As explained above, Ms. Shashoua's pre-November 2003 activities were not actual, open, notorious, adverse and continuous or uninterrupted for twenty years or more, sufficient to establish either adverse possession or prescriptive easement, nor has Ms. Shashoua shown that they were not permissive. And even without the November 2003 agreement, the stone patio, the fish pond, the underground sprinkler system and the new shrubbery bank would be insufficient to establish either adverse possession or prescriptive easement because they were installed in 2004 and thus have not been there for twenty years or more.
Ms. Zien's counterclaim for trespass does not require an extended discussion. The portions of Ms. Shashoua's stone patio, fish pond, shrubbery bank and underground sprinkler system that encroach over the record boundary line may not be maintained there without Ms. Zien's permission, and must be removed if she so requests. Ms. Zien, however, has not proved any monetary damages as a result of these encroachments, and thus is entitled to none. See Lowrie v. Castle, 225 Mass. 37 , 51-52 (1916) (monetary damages must be proved with "reasonable certainty"). See also Augat, Inc. v. Aegis, Inc., 417 Mass. 484 , 488-89 (1994); Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159 , 180-181 (1979); BBF, Inc. v. Germanium Power Devices Corp., 13 Mass. App. Ct. 166 , 176-177(1982)
For the foregoing reasons, Ms. Shashoua's claims of adverse possession or prescriptive easement are DISMISSED in their entirety. Ms. Zien's counterclaim for injunctive relief, directing the removal of Ms. Shashoua's 2003/2004 and other encroachments over the record boundary line, is ALLOWED. Ms. Zien's counterclaim for monetary damages is DISMISSED for lack of proof of monetary loss. Judgment shall enter accordingly.
By the court
[Note 1] Ex. 1 is a survey made in February 2010 showing the encroachment of the stone patio, fish pond and shrubbery bank over the record boundary line. The attached Ex. 2, created by Ms. Shashoua's landscape architect in October 2003, shows that same area as it existed prior to the installation of those encroachments.
[Note 2] Ms. Shashoua is a real estate broker and was familiar with the doctrine of adverse possession from the courses she had taken. Ms. Zien had no such knowledge at the time.
[Note 3] Because I find that Ms. Shashoua has not proved either her adverse possession or prescriptive easement claims, I need not and do not reach the question whether the November 2003 agreement either waived or abandoned those claims or estopped Ms. Shashoua from raising them (i.e. whether Ms. Zien's contention that the agreement set the record line as the agreed boundary is correct).
[Note 4] As noted in Peck v. Bigelow, 34 Mass. App. Ct. 551 , 555 (1993), "a person may secure title by adverse possession although for the full twenty years he had no inkling that he was using another's land. So, too, a person may believe he was using the land in opposition to the record owner, and yet fail in a suit for title."
[Note 5] Brookline zoning, then and now, requires a 20 foot front yard setback and a 30 foot rear yard setback in this district. As previously noted, if the boundary line between the lots is moved by adverse possession to the location Ms. Shashoua claims, the Zien lot becomes non-conforming.
[Note 6] This express footpath easement is labeled "Easement 1, Bk 4412 Pg 744" on Ex. 1.
[Note 7] This second express footpath easement is labeled "Easement 2, Bk 4412 Pg 744" on Ex. 1. The slope goes downhill in that area.
[Note 8] This express right to park a car on the first of Lot B's footpath easements is labeled "Easement Bk 4420 Pg 619" on Ex. 1.
[Note 9] This express easement is labeled "Easement Plan 28 of 1963" on Ex. 1.
[Note 10] The parties did not dispute that the "footpath" easements included the right to put plantings, trellises and other decorations in the easement areas.
[Note 11] Victor is now deceased and the property is currently owned solely by Ms. Shashoua.
[Note 12] They subsequently divorced. The property is currently owned solely by Ms. Zien.
[Note 13] See Ex. 1, which shows the location of the trees.
[Note 14] The hemlock trees are wide-branched and tall, and their root structures dry out the surrounding soil.
[Note 15] This is not disputed. Ms. Shashoua stipulated that her period of adverse possession/prescriptive easement began, at the earliest, at the time she and her late husband purchased #176 on April 11, 1967.
[Note 16] For example, Ms. Shashoua initially testified that she and her son installed an iron trellis in the disputed area, complete with concrete footings. But the photographs and other evidence clearly show the trellis was constructed within her express easement. Likewise, with only minor or insignificant exceptions (see the discussion below), the plantings she claimed to have placed in the disputed area prior to 2003 appear to have been put either on her record property, within her express easement (see, e.g., Ex. 2), or quickly died.
[Note 17] I believe she made significant plantings in the express easement area alongside her sidewalk (an area not affected by the hemlocks), but do not believe her about the other areas. As she herself admitted, plants did not long survive near the hemlocks. Moreover, Ms. Zien (who testified that she and Ms. Shashoua often planted and weeded together) said that she never saw Ms. Shashoua put plants in the disputed area, with the possible exception of an occasional crocus or other bulb.
[Note 18] Ms. Shashoua put great weight on the two laburnum plants she put alongside the concrete walk leading from the rear of the Zien house to its easement over the Shashoua property to the far back yard. But even these did not do well, and were of such little significance and value that they were roto-tilled into the ground in 2003.
[Note 19] Ms. Shashoua testified that she and her family members periodically seeded the area and laid down sod in parts. But she admitted it didn't last. She gave up trying to sod after four failed attempts.
[Note 20] This was the reason they split the tree-trimming bill on one occasion.
[Note 21] Ms. Shashoua claims she never saw Ms. Zien doing anything in the disputed area, but I do not believe that testimony. Ms. Zien and Ms. Shashoua were both avid gardeners, exchanging plants, ideas, and planting and weeding together. The gardens in which they worked were right next to the disputed area - Ms. Shashoua's either in her easement or on her record property; Ms. Zien's along the sidewalk to her far back yard. Ms. Zien went back and forth through the disputed area to her far back yard and to the Shashoua house on a regular basis. Ms. Zien may not have gardened in the disputed area itself - the grass was sparse and plants did not long survive near the hemlocks - but I fully credit her testimony that she regularly trimmed and tended those trees.
[Note 22] At least one had a medical issue that restricted its ability to walk far.
[Note 23] Ex. 2 shows them as earmarked for transplant, but they were not considered large or healthy enough to retain and ultimately were thrown away.
[Note 24] For the same reason, I need not and do not decide if Ms. Shashoua's repeated offers to purchase the disputed area from Ms. Zien were admissions that she had no legal claim to it (Ms. Zien's argument) or simply an attempt to resolve the dispute without the time and expense of a legal proceeding (Ms. Shashoua's contention). As explained above, Ms. Shashoua has not proved either her adverse possession or prescriptive easement claims.