By virtue of the instant action, plaintiffs Kenneth Granger and Beverly Granger (plaintiffs) seek to establish title to a parcel of land (locus / disputed parcel) in Brookfield, Massachusetts. [Note 1] To this end, plaintiffs complaint, filed on December 21, 2006, sets out two counts. The first seeks to quiet title to locus, while the second sets out a claim for adverse possession.
On February 26, 2007, Gary A. LeBlond (defendant) filed an answer together with a counterclaim pursuant to G. L. c. 231 § 6F. [Note 2] Plaintiffs contend that they have either (a) taken title to the disputed parcel by deed granted them in 1976, or (b) satisfied the elements of adverse possession, thereby establishing title by operation of that doctrine. Defendant, in contrast, asserts that he holds title to the disputed property and that, in any event, the plaintiffs use of locus was permissive, so that a claim of adverse possession will not lie.
At a trial conducted on October 28, 2009, the court heard the testimony of Kenneth Granger, Bruce Clarke, Gary LeBlond, and Philip Pierce. This court allowed admission of nineteen exhibits into the trial record. Those exhibits are incorporated by reference into this decision for purposes of appeal. At the close of the plaintiffs case, the defendant verbally moved for a directed verdict or, in the alternative, to dismiss both counts of the complaint. The defendants motion was taken under advisement as to count one (quiet title), and denied as to count two (adverse possession). The parties filed their post-trial briefs on December 30, 2009, and January 31, 2010, respectively.
Findings Of Fact
On all testimony, exhibits and other evidence properly introduced at trial or otherwise before it, and the inferences reasonably drawn therefrom, this court find as follows:
1. Locus is a parcel of land consisting of 20,800 square feet, lying between 39 Rice Corner Road, the Granger residential parcel, [Note 3] and 43 Rice Corner Road, the LeBlond residential parcel, in Brookfield, Massachusetts. The disputed parcel is depicted on a plan recorded on August 11, 1976 with the Worcester South Registry of Deeds (Registry) at Plan Book 427, Page 113. [Note 4]
2. In 1970, William Clarke and Marilyn Clarke, husband and wife, purchased a 68 acre tract of land in Brookfield lying astride the easterly and westerly sides of Rice Corner Road. That tract included the properties currently at issue. [Note 5]
3. A portion of the 68 acre tract was conveyed to the plaintiffs, Kenneth and Beverly Granger. They acquired what is now 39 Rice Corner Road from William Clarke and Marilyn Clarke by deed dated September 3, 1971. [Note 6] William Clarke is Beverly Grangers cousin. [Note 7] At the time of acquisition, the neighborhood was wholly rural in character. Plaintiffs one acre parcel was unimproved and overgrown with trees and shrubs. [Note 8] The lot was cleared and a dwelling erected thereon.
4. Thereafter, the William Clarke and Marilyn Clarke sold much of the remaining land, eventually conveying two parcels, Parcel I and Parcel II to their son, Bruce Clarke, by deed dated September 19, 1975. [Note 9] Parcel I, consisting of 17.62 acres, was subsequently conveyed to the defendant together with Parcel II. In 1978, William Clarke and Bruce Clarke had constructed a residential dwelling on Parcel I and Bruce Clarke resided there from 1978 through 1982. [Note 10] Parcel II, containing 20,800 square feet is the subject of the instant dispute.
5. In 1976, William Clarke and Marilyn Clarke came to [Kenneth Granger and Beverly Granger] and said he was going to sell [locus or] possibly put a house on it [Note 11] for his daughter. [Note 12] Kenneth Granger expressed an interest in acquiring locus [Note 13] in order to clear it and avoid another house being put on it. I didnt want another house so close. [Note 14]
For the sum of $1,500 [Note 15] the Grangers acquired what purported to be the disputed parcel by deed of Bruce W. Clarke. [Note 16] The deed, dated September 14, 1976, was recorded with the Registry on September 29, 1976 at Book 6035, Page 360. While the said deed references the earlier conveyance of Parcels I and II from William Clarke and Marilyn Clarke to Bruce Clarke, [Note 17] the legal description is of a 20,120 square foot parcel located on the opposite side of Rice Corner Road, i.e. a parcel which had been conveyed to one John H. Woodward more than four years earlier, on June 3, 1972. [Note 18]
6. In 1976, the time of its purported acquisition by the Grangers, the disputed parcel was unimproved, overgrown, with shrubs and some small tress. [Note 19] Over the next few years [Note 20] on weekends, Kenneth Granger cleared locus by hand, taking down small trees and at least a single shrub. [Note 21] He eventually leveled it off as best [he] could and reseeded for grass to grow. [Note 22]
7. Once the disputed parcel was cleared, the Grangers teenage son Bruce regularly rode his dirt bike there, and later drove his Camaro vehicle on it to such an extent that the lawn was torn up. [Note 23] By 1982, Bruce Granger had turned 19 years old and had graduated from high school. Thereafter, his motorized recreation on the disputed parcel essentially ceased. Consequently, Kenneth Granger reseeded locus once again. [Note 24]
8. Defendant Gary A. LeBlond holds title to the property at 43 Rice Corner Road, Brookfield. He acquired that property by deed of May 14, 1982 by from Bruce W. Clarke and Anna Marie Clarke. Said deed was recorded with the Registry at Book 7467, Page 299. [Note 25] The deed conveyed the same two parcels of land that had been conveyed from William Clarke and Marilyn Clarke to their son, Bruce by deed of September 19, 1975. While Parcel I is the site of defendants dwelling, Parcel II constitutes locus, the object of this litigation. [Note 26] Defendant, therefore, is the record owner of the disputed parcel.
9. Prior to the conveyance to the defendant, William Clarke had planted approximately three or four arborvitae along the left hand or southerly boundary of the locus telling Kenneth Granger This is your line. We dont go beyond it. [Note 27] According to Kenneth Granger, [t]he bushes were put in there to denote the property line. [Note 28] For his part, Kenneth Granger planted three or four spruce seedlings that [his]son got at school along the Rice Corner Road side of the disputed parcel. [Note 29]
10. In 1984 or 1985 [Note 30] LeBlond undertook arborvitae plantings along the right of way so that such plantings extended along the full length of the disputed parcels left-hand boundary. These arborvitae were approximately three feet tall, costing the defendant about $60 apiece. [Note 31] In addition, the defendant planted approximately twenty-five, somewhat larger, arborvitae along the rear line of the locus. These arborvitae were somewhat taller at three and a half feet tall and costing about $75 apiece. [Note 32] By virtue of these plantings, the defendant effectively separated locus [Parcel II] from the remainder of LeBlonds property [Parcel I].
11. The two rows of arborvitae were continuous, abutting one another, without significant gaps. [Note 33]
12. Every year thereafter, LeBlond maintained the said plantings by pruning them, fertilizing them, applying fungicide, and raking the resulting clippings. [Note 34]
13. After clearing the disputed parcel and seeding it, Kenneth Granger mowed the grass [Note 35] continuously on a weekly or bi-weekly basis up to the line of arborvitae. [Note 36] He would also trim the all the way around the edges to make it look neat, clean. [Note 37] He would, as well, rake the leaves that fell from the four oak trees located on the disputed parcel. [Note 38] The lawn mowing and related maintenance continued until the Grangers sold their residential parcel at 39 Rice Corner Road, in 2005.
14. The Granger family also made use of the disputed parcel for snowmobiling in the winter, [Note 39] in connection with an annual Fourth of July party, [Note 40] for playing handball and badminton, [Note 41] and for parking construction vehicles thereon during the installation of a swimming pool on their residential lot. [Note 42]
15. From 1976 through fiscal year 2005, Kenneth Granger and Beverly Granger paid the real estate taxes that were assessed to them as the purported owners of the disputed parcel. [Note 43]
16. In 2005, the plaintiffs, who currently reside in Sturbridge, Massachusetts, entered into a purchase and sale agreement to convey their house lot and the disputed parcel to Jeffery and Doreen Smith. However, a title search disclosed that the plaintiffs did not possess record title in the disputed parcel. [Note 44] Consequently, the deed conveying plaintiffs property to the Smiths, did not include title to locus.
The plaintiffs suit consists of two distinct causes of action. The first is an action to quiet title while the second seeks to establish title through adverse possession. As previously observed, this court has taken under advisement defendants motion for a directed verdict as to the first count. Accordingly, it will first consider plaintiffs claim to quiet title.
Under G. L. c. 240, §§ 6-10 one may bring an action to quiet title or to remove a cloud therefrom. In their first count, plaintiffs essentially argue that the 1976 deed, which they believed conveyed title to the disputed parcel, was sufficient to convey record title to same, and that the defendants claim of record ownership operates as a cloud. This court cannot agree that the 1976 deed to the Grangers was legally sufficient to convey record title to locus. An erroneous description in a deed conveys the property described, absent a court decree reforming the deed to correct the parties mutual mistake and to conform the deed to their true intent. See Lhu v. Dignotti, 431 Mass. 292 , 294 (2000). Plaintiffs have not included a count for reformation in their complaint, nor have they otherwise demonstrated an entitlement to such relief. Moreover, an action for reformation would not lie in any event, if such reformation were to prejudice the rights of a bona fide, third party purchaser. See ibid. In short, plaintiffs are unable to demonstrate that they possess record title to the disputed parcel.
Furthermore, a claim of adverse possession will not provide the basis for an action to quite title. [M]ere possessory titles are not recognized by our statute, and in equity the general doctrine is well settled, that a bill to remove a cloud from the land affected cannot be maintained unless both actual possession and the legal title are united in the plaintiff. First Baptist Church v. Harper, 191 Mass. 196 , 209 (1906) (emphasis added). Thus, where the plaintiffs do not possess legal title, and where litigants claim of title rests on a claim of adverse possession, the statute is inapplicable. Accordingly, this court will grant the defendants motion to dismiss that count of the complaint brought under G. L. c. 240, §§ 6-10.
Count II of the plaintiffs complaint in which they seek to establish title by adverse possession rests on an entirely different footing. 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 during the statutory period. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968) (use by owner of record during statutory period breaks continuity of adverse claimants possession and vitiates claim). The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights. Totman v. Molloy, 431 Mass. 143 , 145 (2000). See Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808) ([t]o constitute a disseisin of the owner of uncultivated land 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).
To ensure that the purpose of the doctrine is met, the burden of proof rests upon the one asserting the title [by adverse possession]. The burden of proof extends to all of the necessary elements of such possession and includes the obligation to show that it was actual, open, continuous, and under a claim of right or title. Mendonca, supra, quoting from Holmes v. Johnson, 324 Mass. 450 , 453 (internal quotations omitted). If any of these elements is left in doubt, the claimant cannot prevail. Ibid. This court will consider whether plaintiffs have met their burden as to each element, seriatim.
Nonpermissive use, which has been referred to interchangeably in the case law as hostile, adverse, or under a claim of right, is in essence a lack of consent from the true owner. Totman, 431 Mass. at 145. Whether a use is nonpermissive depends on many circumstances, including the character of the land, the identity of those who benefited from the use of the land, the manner in which the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership. Ibid. There is ample support in this courts findings for the notion that plaintiffs use and occupation of the land was hostile to defendants legal title.
For example, the plaintiffs, as grantees under a deed having a faulty property description, believed they had taken title to the disputed parcel. Predicated upon that erroneous belief, they cleared locus; they made use of it; they maintained it; and they paid the real estate taxes assessed thereon. The belief that they were the record owners does not diminish or lessen the hostile or adverse nature of their occupation. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992).
The main thrust of the defendants theory of the case is that he, over the years, gave the plaintiffs, and especially their grandchildren, permission to use the disputed parcel. If this were true, it would vitiate plaintiffs claim of title based upon adverse possession. Ryan v. Stavros, 348 Mass. at 263. ( permissive use is inconsistent with adverse use). However, the only evidence supporting defendants theory is his own self-serving testimony which this court deems not credible and which is, in any event, largely contradicted by opposing evidence which this court chooses to credit. [Note 45]
At trial, the defendant testified that he granted permission in 1982 when Kenneth Granger asked if his children and grandchildren could make use of the disputed parcel. [Note 46] LeBlond further stated that Grangers grandchildren used locus six or seven times a year for seven or eight years. [Note 47] When asked on direct examination if other then the July Fourth party the Grangers made use of the disputed parcel, LeBlond responded, Just the grandkids. [Note 48] And again, Kenny used to mow part of the lawn over here [locus] for his grandkids. [Note 49] On cross examination, LeBlond reaffirmed his statement that between 1982 and 1991 he saw the Granger children playing in at least part of the yard. [Note 50]
This LeBlond testimony regarding permission and usage by the Granger children and grandchildren was directly contradicted by Kenneth Granger. Granger testified that he neither sought nor received permission to use the subject property; and that, by 1982, his two children, then 19 and 22 years old respectively, did not use the subject property except for occasional dirt biking by his son. [Note 51]
The following exchange with Kenneth Granger on redirect examination regarding his purported grandchildren, is highly significant: [Note 52]
Q: You testified earlier that you have one son and one daughter, correct?
A: Yes. Yes.
Q: And in 1982, did your son have any grandchildren?
Q: And in 1982, did your daughter have any grandchildren?
On cross examination, Kenneth Granger testified as follows: [Note 53]
Q: Sir, after 1982, do you have any grandchildren?
Q: Did you ever have any other children, other than your own children, play or recreate on the disputed parcel?
A: The Fourth of July, children that were related played on that parcel of property.
This court is satisfied that the defendants assertions that he gave the Granger children and grandchildren consent to use the disputed parcel finds no credible support in the record. Much of his testimony concerning such alleged permission, is contradicted by the evidence as to the ages of the Granger children and the non-existence of any grandchildren.
Furthermore, the permission that LeBlond purportedly gave the Grangers cannot readily be reconciled with his own actions vis a vis the locus. By way of example, the defendant effectively fenced off the land in question from his remaining property by means of an arborvitae hedgerow. [Note 54] The defendant claims that the hedgerow was intended merely to reduce headlight pollution. As evidence for this assertion, he contends that he always included a forty-foot gap in it for an intended driveway. The presence of such a gap however, is without credible support on the record. [Note 55] Moreover, if the intention behind the hedgerow were only to mitigate headlight pollution, then defendants extension of the hedgerow around the rear of the locus makes little sense. On the contrary, the placement of a hedgerow that goes up the side of the driveway and, then, runs along the rear lot line of locus, raises strong inferences which are plainly at odds with defendants theory of the case.
This fence-like configuration of arborvitae conveys the impression that LeBlond was unaware that he held legal title to locus, but believed rather that he did not own the subject property. One would be hard pressed to believe that a property owner would configure such a row of arborvitae in the midst of his or her yard. It seems evident that the placement of the arborvitae is illustrative of a desire to secure ones privacy from the abutting property. It is reasonable to infer from this configuration that LeBlond placed and maintained the hedgerow intending to assure his privacy from land he believed to be owned by the plaintiffs, his next door neighbors.
This court concludes, based upon the evidence it deems credible and the permissible inferences it draws therefrom, that LeBlond did not give plaintiffs, their children and grandchildren permission to use his land. He would not have given permission to use locus inasmuch as the evidence tends to show he never believed the disputed parcel to be his in the first place, but believed rather that it belonged to the plaintiffs. [Note 56]
Based upon the foregoing evidence and analysis, this court credits Kenneth Grangers testimony as to the nonpermissive nature of his familys use, and finds that Gary LeBlonds testimony is not credible to the extent it is inconsistent with that of Kenneth Granger. [Note 57] Accordingly, this court finds and rules that the plaintiffs use and occupation of locus was nonpermissive.
In the present context, the word actual refers to use and control of the land at issue, sometimes known as dominion, in derogation of the true owners rights. See Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). The acts necessary to establish actual use and dominion will vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. LaChance v. First Natl Bank, 301 Mass. 488 , 490 (1938). [T]he possessor must use and enjoy the property . . . as the average owner would use it . . . Ottavia, supra at 333, quoting from 3 American Law of Property, § 15.4, at 776-777 (A.J. Casner ed. 1952). See Kendall v. Selvaggio, 413 Mass. at 624. In most cases, to fulfill this requirement, the possessor must 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), quoting from LaChance, supra at 491.
In the instant case, the disputed parcel is essentially a side yard in a rural neighborhood where large yards are not uncommon. [Note 58] Plaintiff has produced credible evidence to show that in 1976, upon his purported acquisition of the disputed parcel, he gradually cleared what was then unimproved, overgrown land. This is the sort of permanent improvement associated in the case law, with actual possession. Peck, supra. Thereafter, he planted grass, and maintained the resulting lawn. See ibid. Subsequently, after his sons recreational biking and off-road driving ceased, the plaintiff re-seeded the lot and maintained the lawn with weekly or bi-weekly mowing, as well as raking leaves and edge trimming as deemed necessary. Such actions are consistent with the usual and ordinary cultivation and maintenance of property commonly performed by landowners in such neighborhoods. [Note 59] See Collins v. Cabral, 348 Mass. 797 , 797-798 (1965); Soer v. Daffe, 337 Mass. 420 , 423 (1951); Sea Pines Condominium III v. Steffens, 61 Mass. App. Ct. 838 , 847-849 (2004); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 904 (1993); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979).
Plaintiffs additionally held an annual Fourth of July party, planted several spruce and played sports upon locus. They also used it during the construction of their pool to park various vehicles, and paid real estate taxes assessed to them upon locus to the for the entire period in question. While not in itself dispositive, [t]he payment of taxes evidences a claim of ownership." Lawrence v. Concord, 439 Mass. 416 , 418 (2003), quoting from Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823 , 826 (1984). In sum, there is ample evidence that the plaintiffs actually possessed the subject property. Consequently, this court finds and rules that plaintiffs have met their burden in demonstrating their actual possession of locus.
The same evidence that has persuaded this court that plaintiffs possession was actual also convinces it of the continuous nature of their occupation. While acts of possession which are few, intermittent or equivocal will not suffice to prevail upon an adverse possession claim, Parker v. Parker, 1 Allen 245 , 247 (1861), the above described actions taken by the plaintiffs and their family members with regard to the subject property, extend, continuously, throughout a minimum twenty-year period. There is no evidence deemed credible by this court, of interruption by actions of dominion on the part of the defendant. [Note 60] As such, this court finds and rules that plaintiffs occupation of the disputed parcel was continuous.
The open and notorious element, the purpose of which is to place the true owner on constructive notice of the adverse claim, see Sea Pines Condominium III, 61 Mass. App. Ct. at 848, requires that the adverse possessors use and occupation of the property be of the sort that would be readily observable by the record owner. See ibid. In Foot v. Bauman, 333 Mass. 214 (1955), the Supreme Judicial Court adopted the true rule that [t]o be open the use must be made without attempted concealment. 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." Id. at 218. Here, plaintiffs use and occupation of the subject property was certainly of the type that would reasonably alert the true owner of plaintiffs possession. In fact, the defendant testified to having observed plaintiffs or their invitees using locus.
Moreover, to the extent that plaintiffs use and maintenance of locus was at all obscured, that result was due largely to the actions of the defendant himself in planting rows of arborvitae. Accordingly, this court finds and rules that plaintiffs occupation of locus was open and notorious.
As with the requirement that an adverse possessors use be actual, exclusivity requires a showing of "actual use and enjoyment of the property as the average owner of similar property would use and enjoy it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership . . ." Shaw, 8 Mass. App. Ct. at 156-57, quoting from 3 Am. Law of Property, § 15.3, at 765-766 (1974). Thus, what constitutes exclusive possession depends upon the type of land at issue and usage in the surrounding area. Therefore, [e]vidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city. LaChance, 301 Mass. at 490. The application of this standard does not require that the adverse possessor actually expel third parties, but merely requires such expulsion "to the extent that the owner would have excluded them." Peck, 34 Mass. App. Ct. at 557.
In the instant case, the evidence supports the exclusivity of the plaintiffs possession. [Note 61] Plaintiffs acted towards the disputed parcel as would an average owner. It is undisputed that LeBlond entered upon the disputed parcel to maintain and trim the arborvitae that he himself had largely planted. [Note 62] However, there is nothing to suggest that this annual effort involved anything other than a minimal intrusion, or that it would derogate from the exclusivity of plaintiffs possession. Contrast Peck, supra (traffic upon rights of way on disputed property vitiated exclusivity of claimants possession). This court concludes therefore, that such an annual entry by the record owner to maintain his shrubbery, at the boundary line, does not constitute an act "of dominion [over the subject property] by the defendant consistent with its title of record." Mendonca v. Cities Service Oil, 354 Mass. at 326. Thus, LeBlonds acts of maintenance concerning the hedgerow, did not require the Grangers to eject him from locus in order that their possession be considered exclusive. This court finds and rules, based upon the credible evidence presented, that plaintiffs have amply demonstrated their exclusivity of possession on the trial record.
Lastly, there is the matter of the requisite statutory period. General Laws, c. 260, §21 sets forth the statute of limitations in an action for the recovery of land [which] shall be commenced . . . within twenty years after the right of action . . . accrued . .. . The theory is that there has been a disseisin by an adverse possessor, and that consequently an owner must bring an action to recover the land within twenty years. [Note 63]
Thus, the plaintiffs must demonstrate that their adverse possession of locus has spanned twenty years or more. In the instant case, the prescriptive period began in 1976 when Kenneth Granger believed he purchased the disputed parcel. Thereafter, for an uninterrupted period until 2005, well beyond the twenty year period, the plaintiffs openly, notoriously, and under a claim of right, adversely held the disputed parcel in derogation of the true owners rights.
The defendant makes much of the fact that the Granger childrens heavy use of the disputed parcel occurred prior to LeBlonds purchase in 1982. As Justice Holmes wrote, however, over a hundred years ago:
Adverse possession is a pure matter of fact, to be interrupted only by interrupting the possessor's exclusion of adverse claimants, an abandonment of his claim, or a change in his intent. In general also the effect of the adverse possession will not be abridged by a change of title. The adverse possessor ex hypothesi is a wrongdoer until the twenty years has elapsed. Commonly at least, if not necessarily, his claim is adverse to all the world, and probably any dealings among the excluded parties, even when a deed by a disseisee is valid, would not affect him. Probably the purchaser would only stand in his seller's shoes.
Harrison v. Dolan, 172 Mass. 395 , 396 (1899). Thus, even though record title of the disputed parcel passed from Bruce Clarke to LeBlond in 1982, this transfer had no effect on the prescriptive period. Moreover, as LeBlonds own testimony establishes, the plaintiffs use of locus extended well beyond that of their children, throughout the statutory period. In short there is more than ample evidence that plaintiffs use of the disputed property continued beyond the requisite prescriptive period.
For the foregoing reasons, this court is satisfied that the plaintiffs have met their burden as to every element of their adverse possession claim. This court concludes, therefore, that the plaintiffs have established title to the disputed parcel predicated upon a successful showing of adverse possession.
Judgment to enter accordingly.
Harry M. Grossman
Dated: February 15, 2011.
[Note 1] See Exhibit 13. Locus is identified as 41 Rice Corner Road by the local assessors.
[Note 2] Defendant alleges that plaintiffs adverse possession claim is wholly frivolous.
[Note 3] The court adopts this designation notwithstanding the conveyance by the Grangers in 2005.
[Note 4] Captioned Plan of Land in Brookfield Mass Surveyed For William & Marilyn Clarke.
[Note 5] Transcript (Tr.) 101.
[Note 6] See deed recorded with the Registry at Book 5150, Page 566. Tr. 30. See also Tr.104.
[Note 7] Tr. 37.
[Note 8] Tr. 31.
[Note 9] Recorded with the Registry on October 1, 1975 at Book 5809, Page 73.
[Note 10] Tr. 107-108.
[Note 11] See Tr. 106-107; 109-110. As noted supra, the land in question was granted to Bruce Clarke. Although Bruce was record owner, he possessed little control over the land during most of the 1970s. Moreover, at the time of the conveyance, Bruce Clarke was only sixteen or seventeen years old. It appears that William Clarke transferred the lands to his son solely to avoid a restriction caused by the sale of land across Rice Corner Road. William Clarke retained actual control over the property and its disposition.
[Note 12] Tr. 35.
[Note 13] Tr. 33-34.
[Note 14] Tr. 37.
[Note 15] Again, the deed was purportedly in Bruce Clarkes name and it appears to be signed by him, but the sale was orchestrated by his father, William Clarke. Moreover, see in this regard Tr. 129. When asked if it were his signature on the relevant deed to the Grangers [Exh. 3], Bruce Clarke responded as follows:
There again, I cant answer that question. Im just not positive whether I signed it or my mother signed it.
[Note 16] As per the deed recorded with the Registry at Book 6035, Page 360.
[Note 17] BEING a portion of the same premises conveyed to me by deed of William Clarke and Marilyn L. Clarke, husband and wife, dated September 19, 1975, and recorded ay Worcester Registry of Deeds in Book 5809, Page 73.
[Note 18] See Exhibit 4, a May 10, 2005 Memo of Southern New England Title Co., Inc. That Memo recites as follows:
Regarding Parcel 2 conveyed to the Grangers by deed of Bruce W. Clarke, dated September 14, 6, and recorded in Book 6035, Page 360 The legal description appears to be for Lot 2-P as shown on plan recorded in Plan Book 346, Plan 53 which is 1000+ feet northerly of the locus. Unfortunately, Bruce Clarke did not have title to this lot as his predecessor in title conveyed it to John H. Woodard et al by instrument recorded in Book 5226, Page 3.
Parcel 2 of the deed to Bruce W. Clarke recorded in Book 5809, Page 73 is currently owned by Gary A. LeBlond by deeds dated July 28, 1999 and recorded in Book 21673, Page 132 and Book 22765, Page 146 (releasing life estate).
[Note 19] Tr. 38.
[Note 20] Grangers testimony is unclear as to when the land clearing activities ceased. Based upon his son beginning to ride his dirt bike on the disputed parcel when he was fourteen years old, however, the clearing likely ceased by 1978.
[Note 21] He cleared the land with a shovel, a saw and a pick. Tr. 40.
[Note 22] Tr. 41.
[Note 23] It is difficult to ascertain from the trial record, precisely how often Bruce Granger utilized the parcel for motorized recreation. Kenneth Granger testified that his son rode the dirt bike and he just kept it up and had full rein of that property. Tr. 42. Granger also stated that Bruce would take the Camaro and drive it up on that property and, there again, chew it up [the lawn on the disputed parcel]. Tr. 42. Bruce Clarke corroborated Bruce Grangers use of the parcel with testimony that Granger rode his motorcycle and his car, drove his car around, had a little dirt track, he put up a lot of dust. Tr. 114. Suffice it to say. this use by Bruce Granger appears to have been extensive.
[Note 24] Tr. 53-54
[Note 25] I credit the testimony of Bruce Clarke to the effect that as a prospective purchaser, Gary LeBlond and his then spouse came by [Bruce Clarkes house] without the broker, and we reviewed more of the information dealing with the property. Tr. 119. On direct examination Bruce Clarke testified as follows:
Q: So you showed Gary [LeBlond] the property lines?
Q: And did you show him that the property ended at the disputed parcel?
A: Yes. We had our arborvitaes planed enough on our property so that you should be able to go around and trim them, and the plantings should stay on your property. I planted them on our property, not directly on the line. Tr. 120 .
[Note 26] After taking title to the disputed property, defendant conveyed same to Leonard J. LeBlond and Marion LeBlond by deed dated July 8, 1992, and recorded with the Registry at Book 14369, Page 155. Thereafter, defendant regained title to the disputed property by deed of Leonard J. LeBlond and Marion LeBlond, dated June 28, 2000, and recorded at Book 22765, Page 146.
[Note 27] Tr. 45.
[Note 28] Tr. 44-46.
[Note 29] Tr. 47.
[Note 30] Testimony adduced on defendants direct examination reference both years as the time of the plantings. See for example Tr. 175 & 178. But see also Tr. 205-206 wherein LeBlond claimed to have planted bushes along the rear line of locus in 1983 to 1984. See too, Tr. 215-216.
[Note 31] Tr. 57-58. See also Tr. 175-177 wherein the defendant testified that in 1985 he planted approximately fifty bushes, along the full length of the line designated 181.20 [linear feet] on Exhibit 5. That line constitutes the left side boundary of the disputed parcel. There was a couple of bushes over here started already.
[Note 32] Tr. 179. The twenty-five shrubs were planted by the defendant along the easterly boundary of locus, designated 104 [linear feet] on Exhibit 5.
[Note 33] Tr. 58. Tr. 125. But see Finding of Fact 10. As first planted, the shrubs were relatively modest in size. According to the defendant, he planted them approximately eight feet apart.
[Note 34] Tr. 177-178. Tr. 184.
[Note 35] Tr. 69. From about 2000 through 2005, one Joseph Carrington was hired to mow the lawn, including that of the locus, for the Grangers.
[Note 36] Tr. 55.
According to Kenneth Granger:
All the arborvitae that were planted by Mr. LeBlond came down the boundary line and across the back line of the property. Thats where I stopped cutting the grass.
[Note 37] Tr. 55.
[Note 38] Tr. 54.
[Note 39] Again, it is difficult to determine from the testimony the exact years that the snowmobiling occurred.
[Note 40] Tr. 51.
[Note 41] Tr. 52.
[Note 42] See Exh. 12. The pool is located close to the house on the plaintiffs residential lot. The pool was installed in the 1980s after the defendant purchased Parcel I and Parcel II.
[Note 43] Granger provided the Court with tax bills for fiscal year 1978 through 2003. See Exh.11. Granger further testified that he paid the taxes on the parcel, which were always billed separately from the assessment on the house lot. See Tr. 50. See also, Exh. 13 a copy of a January 10, 2007 letter from the Brookfield Board of Assessors informing the Grangers that 41 Rice Corner Road (the disputed parcel) was owned of record by the defendant, Gary LeBlond, and thus the Town was abating the Granger tax bill for FY07.
[Note 44] That title resided in the defendant, LeBlond.
[Note 45] For example, Kenneth Grangers testimony was corroborated in all significant respects by Bruce W. Clarke the named grantor on the deed purporting to convey locus to Kenneth Granger. This court found Clarkes testimony to be credible.
[Note 46] Tr. 180-183. On direct examination, Gary LeBlond testified as follows:
Q: And when was the first time that you gave permission to Mr. Granger or any member of his family to use part of parcel two?
A: Immediately upon when I purchased the property. Kenneth came over to me probably the second or third day after I owned it and asked permission for his grandkids and kids could play on the property back at that time.
Q: And what was your response to Mr. Grangers request for his children and grandchildren to use part of parcel 2?
A: My response was, As long as, Ken, you keep that little area safe, secure, mowed, and no limbs, you can use it. No problem.
[Note 47] Tr. 181. He later recited that they used the land for eight or nine years. Tr. 182.
[Note 48] Tr. 182.
[Note 49] Tr. 185. See also Tr. 220 for an exchange with the defendant concerning Grangers purported grandchildren.
[Note 50] Tr. 224. On cross-examination, LeBlond testified as follows:
Q: So, between 1982 and 1991, the Granger children were out in the yard playing?
A: On occasion, part of the yard. Yes; sir. Absolutely.
Q: Was there anyone else with them?
A: There were kids. There could have been some strange kid once in a while. Im not sure. But the Grangers kids were out there; a couple of girls and Bruce [Granger] once in awhile. Its no biggy.
[Note 51] Tr. 84-85.
[Note 52] Tr. 245.
[Note 53] Ibid.
[Note 54] In exhibit 12, there is a picture of the plaintiffs pool which includes the back arborvitae hedgerow. When this picture was taken, the arborvitaes were quite evenly spaced, with no large gaps. It is readily apparent to the Court that the intent behind such a planting was so that the arborvitaes will eventually grow together, creating a significant privacy fence.
[Note 55] Both Kenneth Granger and Bruce Clarke testified that the arborvitae were planted in a continuous line, without any gaps. See Tr. 58, 125.
[Note 56] This court is well-aware that the subjective intent of the respective parties does not bear on an adverse possession claim as such; that the relevant inquiry focuses, instead, on the actions of the adverse possession claimant towards the disputed land, see Kendall v. Selvaggio, 413 Mass. at 624; Air Plum Island, Inc. v. Society for the Preservation of New England Antiquities, 70 Mass. App. Ct. 246 , 252 (2007); and, moreover, that Lawrence v. Concord makes clear that the true owners ignorance of its own title does not present a bar to an adverse possession claim. 439 Mass. 416 , 424 (2003). Nevertheless, these indicia of defendants intent are probative of whether defendant gave consent to the plaintiffs use and occupation. To the extent that the facts demonstrate that LeBlond did not believe that he owned locus, it is less likely that he gave consent to plaintiffs use and occupation.
[Note 57] And with the testimony of Bruce W. Clarke.
[Note 58] Bruce Clarke testified that We live in a rural setting and large yards are not uncommon at all. Tr. 115.
[Note 59] Tr. 123-124. On one occasion, Kenneth Granger complained to the Town about water coming out of the driveway across the street carrying road salt and sand onto his property, i.e. the disputed parcel. Whereupon, the Town took action so the water wouldnt run down on that property anymore.
[Note 60] LeBlond testified that he mowed a portion of the disputed parcel and had portions of it leveled by an excavator. However, as was explained supra, this court has discounted much of his testimony, here in part because the actions that he has testified to, including mowing part of the parcel and excavating it, are not supported by the record and are contradicted by it. When countervailing evidence has contradicted LeBlonds testimony in this regard, this court has credited such countervailing evidence and has found LeBlonds testimony not credible. Accordingly, this court finds no credible evidence of defendants interruption of plaintiffs adverse possession of locus.
Even if this court were to credit LeBlonds testimony, i.e., that he mowed the lawn, this court doubts that such use would constitute acts "of dominion [over the subject property] by the defendant consistent with [his] title of record" such that it would interrupt plaintiffs possession, Mendonca, 354 Mass. at 326, as such intermittent conduct in relation to the land would not, conversely, suffice to establish adverse possession. As to the allegations of the defendant having excavated the property, such testimony is in stark contrast to Grangers narrative of his clearing and leveling the property nearly ten years before; and this court specifically finds LeBlonds assertion in this regard dubious.
The only credible evidence of LeBlond entering locus at all involves his annual maintenance of the hedgerows. As set forth in the discussion, infra, concerning the exclusivity of the plaintiffs occupation of the subject property, however, these actions cannot reasonably be considered actions of dominion and control over locus, but rather are actions of ownership over the hedgerows themselves, which demarcate what LeBlond considered to be the boundaries of his property.
[Note 61] As stated, supra, note 44, LeBlonds testimony seeking to establish his actions of dominion and control over locus, thereby warranting plaintiffs ejection of him from locus and vitiating the exclusivity of their occupation, have been rejected by this court. This court finds such allegations to be unsubstantiated by the record and not credible.
[Note 62] See Tr. 179, 184. On cross-examination, Kenneth Granger testified as follows in this regard:
Q: Did he [LeBlond] ever come on the property [disputed parcel]?
A: The only time he was on that property was to trim his arborvitaes. Other than that, no. Q: And how often did he trim those arborvitaes?
A: When they started to get overgrown, he would go out there and trim them.
Q: And did you ever send any communication to Mr. LeBlond that that was your property and he shouldnt trim the bushes?
A: No. I was happy to see him do it. They looked nice when he finished.
Tr. 87, 88.
[Note 63] Mass. Practice Series, Real Estate Law, v. 28, c. 27, § 27.1.