MISC 78658

July 31, 1978

Middlesex, ss.

Sullivan, J.


The parties in the above-numbered two cases, which were consolidated and tried together, own adjoining parcels of land on the southerly side of Gould Street in Wakefield, in the County of Middlesex. Joseph Taibbi and Joan S. Taibbi acquired title, as tenants by the entirety, to the premises known as 20 Gould Street from Marjorie O'Brien, Administratrix of the Estate of Marion Kernan, by deed dated June 2, 1966 and recorded with Middlesex South District Deeds, Book 11150, Page 77 (Exhibit No. 14). The premises at 18 Gould Street, which adjoin those of the Taibbis on the east, were conveyed to Laurence F. McNeil, Jr. and Deborah K. McNeil, husband and wife, as tenants by the entirety, by Peter M. Nieber by deed dated August 14, 1974 and recorded with said Deeds, Book 12525, Page 408 (Exhibit No. 1 to Substitute Complaint).

The first action was initiated by Mr. and Mrs. McNeil; their complaint recited the respective title references of the parties and alleged a continuous trespass by Mr. and Mrs. Taibbi on the McNeil land. The complaint filed on behalf of the Taibbis, in the action thereafter brought by them, alleged that they had acquired title to the land in dispute by adverse possession, that the boundary had been marked by a hedge and fence for over thirty years, and that the McNeils had destroyed the fence and damaged the hedge.

A trial was held at the Land Court on December 15 and 16, 1977 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken by the Court on May 4, 1978 in the presence of counsel.

On all the evidence I find and rule as fo11ows:

Mr. and Mrs. McNeil are the owners of record of a portion of Lots 5 and 6 shown on "Plan No. 4 of House Lots near the South Reading Depot, Surveyed September 1, 1847 by John Sargent" and recorded with said Deeds, Plan Book 203, Plan 46. Mr. and Mrs. Taibbi own the westerly portion of Lot 6 on said plan. Their respective deeds each describe a parcel of land sixty feet wide and one hundred fifty feet deep, and the properties are so shown on the Wakefield Assessors' plans. (Exhibit No. 5). At the present time there is a bush at the street line on each side of the Taibbi lot and the Taibbis claim that these mark the northeasterly and northwesterly corners of their lot. In the progression from a point on the street at the common record boundary line to the rear of the properties, the first significant growth is that of the two pine trees located on property undisputedly that of the Taibbis. About thirty feet from the street a row of thorn bushes commences, the center line of which is about four feet to the east of the record boundary line. This is followed by mixed brush and maple to the rear of which is a row of old lilacs about one and one-half feet to the east of said line. There formerly was a section of picket fence along the lilac bushes on the McNeil side of the bushes. The fence appears in Exhibit No. 12, but subsequently was removed by parties unknown. There is a chain link fence approximately on the rear lot line of each property. The fences are of different heights and there is a gap between them about three feet to the east of the record boundary line. The inference is that the picket fence met the chain link fence at the gap, and there was evidence to this effect.

The house on the Taibbi premises was built by the Kernan family. Presumably record title originally was in the parents, but at least from 1932 on it was held by two or three of the maiden daughters, Alice J., Mabel A. and Marion E. Kernan (Exhibit No. 13). Their brother, John, was the Commissioner of Parks in Lowell and spent weekends at the family house. He planted the bushes and hedge which presently grow between the two houses. About every other weekend he would trim them, cut the grass and rake the yard as required. These activities of Mr. Kernan spanned a period of approximately forty years (except possibly for a period of five years when the neighbor who testified lived elsewhere) from about 1921 to the early 1960's. After the death of Marion E. Kernan the Tabbis purchased the property, and the extent of the gardening declined. However, the bushes were trimmed, the area raked, and the grass cut.

The plan prepared for the McNeils (Exhibit No. 8) locates both the record boundary line and the lines of occupation. That prepared for the Taibbis (Exhibit No. 10) shows only the latter.

It is apparent from observation of the premises that the hedge and bushes between the properties of the parties have been there for many years. The evidence as to their origin and history establishes the fact that they were planted and nurtured by predecessors in title of the Taibbis. These activities of the Kernans, as continued by the Taibbis, satisfy the requirements as to the acquisition of title by adverse possession to a strip located between the boundary line of record and a line running from the center of the bush at the northeasterly corner of the Taibbi lot through the center of the row of thorn bushes to the gap in the chain link fences.

Title claimed by adverse possession "can be sustained only by proof of open, adverse, exclusive, continuous and uninterrupted possession under claim of title for the requisite period of twenty years." Town of Nantucket v. Mitchell, 271 Mass. 62 , 68 (1930); accord, Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); McDonough v. Everett, 237 Mass. 378 , 383-84 (1921).

The fact that the Taibbis and their predecessors in title "claimed the disputed strip only because they were under a mistake as to where the boundary line would fall when the deeds were applied to the land" is immaterial. Jordan v. Riley, 178 Mass. 524 , 525 (1901); accord, Boston & Worcester R.R. v. Sparhawk, 5 Met. 469 , 474-75 (1843). Furthermore, their acts were open and notorious. As the Supreme Judicial Court recognized in LaChance v. First National Bank & Trust Co., 301 Mass. 488 (1938):

"The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Evidence 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."

Id. at 490-91. And, the LaChance Court noted that where residential land is in issue, and the disputed parcel is located on one of two adjoining lots with the building on one lot closely situated to that on the other, "the use made of his land by an occupant of one lot [is] visible and apparent to the occupant of the other." Id.

The cases confirm that the uses of the premises made by the Taibbis are sufficient to satisfy the requisites of adverse possession. Wood v. Quintin, 328 Mass. 118 (1951), involved a dispute between two adjoining landowners. In 1927, the plaintiffs' predecessor in title had erected a fence.

"Both parties and their predecessors in title believed that the fence was on the true boundary line, until a survey was made in April, 1950.... The master found [and the Supreme Judicial Court affirmed,] that "the defendants and their predecessors in title used and occupied the strip of land belonging to the plaintiffs which was enclosed by the fence, and that said use was continuous, open and adverse to the plaintiffs' title." Id. at 119.

In Shoer v. Daffe, 337 Mass. 420 (1958), the plaintiff and the defendants were adjoining landowners of residential property. The plaintiff had surrounded his land with a hedge and had included within its confines a 556 square foot parcel, to which the defendants had record title. Finding that planting a lawn and surrounding it with a hedge was a use ordinarily made by an owner, the Court held that the plaintiff had established title by prescription. Id. at 423-24.

Collins v. Cabral, 348 Mass. 797 (1965), and Lyon v. Parkinson, 330 Mass. 374 (1953), are further illustrations of similar activities held by the Supreme Judicial Court to constitute adverse possession.

Judgment accordingly.