GERALD T. GEROLAMO and DONNA S. F. GEROLAMO vs. ROBERT R. SLAWSON.

The plaintiffs brought this action on November 23, 1979 pursuant to G. L. c. 260, §6 and G. L. c. 185, §1(k) and 1(o) seeking, 1) establishment of the location of the boundary line between plaintiffs' and defendant's property; 2) a finding that plaintiffs own the disputed strip of land between the properties; 3) a permanent injunction requiring defendant to remove certain stakes and a fence placed on the disputed strip by the defendant, restoring the premises to their former condition and restraining defendant from further trespass; 4) monetary damages. Plaintiffs contend that they acquired title to the disputed land by the conveyance to them of their property in 1977, and, alternatively, by adverse possession.

Various pleadings were filed by the parties and disposed of by the Court. The defendant's motion for summary judgment of July 28, 1980 was denied by the Court but defendant's motion to file an amended answer and counterclaim was allowed. In this amended answer defendant asserts that plaintiffs' garage is located upon his property, constitutes a continuing trespass, is an encroachment thereon and has reduced the marketability of his title. Defendant prays for 1) an order that plaintiffs' garage be removed; 2) ratification of the findings of a survey as being accurately descriptive of the deed whereby defendant first acquired an interest in his property; 3) damages; and 4) costs, counsel fees and expenses.

A trial was held on July 28, 1980. A stenographer was sworn to record and transcribe the testimony in the case. Six witnesses testified and thirteen exhibits were admitted into evidence and are incorporated herein for the purpose of any appeal. Plaintiffs have submitted thirty-one requests for "Rulings of Law" and the defendant has submitted one such request. Defendant submitted six requests for "Findings of Fact". Oral arguments on the case were heard on December 12, 1980. A view was taken by the Court on April 9, 1981 with parties and counsel (on both sides) present. Finally on May 15, 1981, briefs were submitted.

The parties are in agreement that record title to the disputed area is in the defendant, Slawson. Thus, the only issue to be decided is whether or not the plaintiffs have acquired title to the disputed strip by adverse possession.

Based on all of the evidence the Court finds the following facts:

1. Plaintiffs Gerolamo are the record owners of a lot of land located on the southeasterly side of Shirley Avenue in Kingston, Massachusetts, shown as Lot 3 on a plan recorded in Plan Book 6, Page 970 at the Plymouth County Registry of Deeds [Note 1] (Exhibit 7) and on Appendix A [Note 2] which they acquired by a deed of Frederick E. Corrow and Bernard J. Corrow dated November 22, 1977 recorded in Book 4367, Page 380 (Exhibit 1).

2. Defendant Slawson is the record owner of the lot of land located on the southeasterly side of Shirley Avenue, Kingston shown as Lot 2 on the aforementioned plan and abutting plaintiffs' parcel to its southeast. It is likewise shown on Appendix A. Defendant became a joint owner thereof by a deed from Phyllis A. Letendre, Trustee, to defendant and Kathleen T. McLaughlin, dated October 8, 1971 and recorded in Book 3716, Page 173 (Exhibit 5) and sole owner by a deed from himself and Kathleen T. McLaughlin dated July 31, 1973 and recorded in Book 3917, Page 364 (Exhibit 6).

3. The strip of land in contention lies on plaintiffs' side of a row of shrubs or hedge containing approximately 786 square feet as shown on Appendix A, attached hereto. It is unclear whether plaintiffs claim to the line of the hedge or to the stockade fence but in the view the Court takes of this case it makes no difference in the final result.

4. Within the disputed strip of land is located a stockade­type fence erected by defendant in October, 1979. This fence extends along the southerly side of defendant's lot to the northwest corner of plaintiffs' garage, a distance of approximately seventy-five feet and is located about two feet southwesterly of the center line of the hedge. Situated within the disputed area is a grassy strip of land to the west of the fence and extending from the easterly side of Shirley Avenue to the front, or westerly side of plaintiffs' garage, and, a portion of a driveway running parallel to the grassy strip from Shirley Avenue to the front of plaintiffs' garage. These details are all shown on Appendix A.

5. Plaintiffs' title can be traced back to Margaret E. Richter who conveyed title to Lot 3 to Frederick E. and Edwilda F. Corrow by deed dated November 6, 1947, recorded in Book 1983, Page 474 (Exhibit 2).

6. Between November of 1947 and the late summer of 1948 Frederick E. and Edwilda F. Corrow built the house, located on Lot 3, and the garage, located partly on Lot 3 and Lot 2. The driveway to the garage from Shirley Avenue was laid out at this same time. Mr. Corrow in the early years of his occupancy owned two cars and later one car. The garage was used to store at least one car and the driveway was used by him on a regular basis from its construction in 1948 until his death in 1963. Also during this period, Mr. Corrow painted the garage and on one occasion, upgraded the driveway by applying pea stone over its gravel base. He also maintained the grassy strip of land between the hedge and the driveway but did not maintain the hedge itself.

7. Lot 3 was occupied by Frederick E. and Edwilda F. Corrow from 1947 until his death in 1963 and thereafter by Edwilda F. Corrow until 1977. She did not own a car, but since the garage was rented during the winter months the driveway was in use by her tenant and by her children and other visitors. The grassy strip of land between the hedge and driveway was maintained by persons employed by Mrs. Corrow or her son, Frederick E. Corrow. The latter, on occasion, mowed this area himself. Neither Mrs. Corrow nor her son maintained the hedge during the period from 1963 to 1977.

8. Edwilda F. Corrow had become the owner of Lot 3 as surviving tenant by the entirety upon her husband's death in 1963 and retained title until she conveyed it to her sons Frederick E. Corrow and Bernard J. Corrow by deed dated December 27, 1975, recorded in Book 4127, Page 235 (Exhibit 2). They in turn conveyed it to the Plaintiffs on November 22, 1977. (See paragraph one herein).

9. In 1966, defendant's Lot 2 was owned by George Valler and Phyllis Valler, the latter being defendant's immediate predecessor in title (See Exhibit 5). Mr. Valler testified that he planted a garden behind the garage located on Lot 3. Neither he nor his wife used the garage or Mrs. Corrow's driveway but Mr. Valler did maintain the hedge and from time to time mowed the grass on the plaintiffs' side of the hedge.

10. After acquiring Lot 2, Mr. Valler formed a belief that the boundary line between Lots 2 and 3 ran through a portion of Mrs. Corrow's driveway and garage. In 1966 or 1967, Mr. Valler jestingly informed Mrs. Corrow that he thought his boundary line went through her garage. Mr. Valler testified that Mrs. Corrow confirmed his belief and asked him if he was going to make her move her garage; Mr. Valler replied "as long as I am here you have my permission to use it forever."

11. Between October, 1971, when defendant purchased Lot 2 and 1977, when plaintiff acquired Lot 3, defendant cared for the hedge and occasionally assisted the person employed by Mrs. Corrow to mow the grassy strip on her side of the hedge. In 1976, defendant installed a compost container between his garage and the garage located on Lot 3. Periodically defendant and his wife cut lilacs from a lilac bush located between the garages.

12. In the spring of 1974, Mary Ann Slawson, wife of the defendant, was told by Mrs. Corrow that the lilac bush belonged to defendant and that the garage on Mrs. Corrow's property was slightly over the boundary line between the properties. Mrs. Slawson testified that Mrs. Corrow looked worried about imparting this information and that she told Mrs. Corrow not to worry about the garage being over the line as it did not matter to her.

13. In May, 1979 defendant informed plaintiffs that he had had his property surveyed for the purpose of erecting a fence along the boundaries between the properties and had learned that plaintiffs' garage encroached upon his land some six feet.

14. During October, 1979 plaintiffs and defendant discussed the matter further and it was decided that a fence should be erected between the properties, that plaintiffs would contribute to the cost of the fence and that plaintiffs would be granted "some kind of easement".

15. On October 25, 1979 the stockade fence, referred to in paragraph 4 above, was erected by the defendant. Plaintiff had believed that the fence would be located on the property between the garages on Lots 2 and 3 but following the line of the hedge. The fence was erected to the west of the hedges and extends from Shirley Avenue in a southeasterly direction to within inches of the northwest corner of plaintiffs' garage.

I. Has Plaintiff acquired title to the disputed strip of land by adverse possession?

To establish title by adverse possession there must be proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964). One who claims title by adverse possession must prove every element of his claim and if any element is left in doubt the claimant cannot prevail. Gadreault v. Hillman, 317 Mass. 656 (1945). Likewise, such a claim will not prevail against the true owners unless there has been such exclusive possession as amounts to a disseisin. Sparhawk v. Bullard, 42 Mass. 95 (1840).

In applying these principles to the present case it is apparent that plaintiffs have failed to sustain their burden of proving that their possession was not permissive. By its very terminology a claim to title by adverse possession must be "adverse". It has long been established that if an owner expressly consents to the use of his property, the permissive user may not successfully assert title by adverse possession. Bachelder v. Wakefield, 62 Mass. 243 (1851), Ryan v. Stavros, 348 Mass. 251 at 263 (1964).

In this case the plaintiffs have failed to prove that the disputed strip of land was used nonpermissively by them and their predecessors for a continuous 20 year period. The evidence shows that the use by plaintiffs' predecessors in title, the Corrows, was permissive. Defendant's wife and defendant's predecessor in title, Mr. Valler, each had a conversation with Mrs. Corrow and Mr. Valler had at least two conversations with Mr. and Mrs. Corrow in which the Corrows or one of them acknowledged that a portion of their garage was situated on the defendant's land. The Corrows were apprehensive for fear they would have to move the garage. The relationship between Mr. Valler and the Corrows and defendant and Mrs. Corrow was friendly and the Vallers granted the Corrows permission to allow their garage to remain where it was located, over the property line. The Corrows did not exert by overt act or otherwise evidence of a claim of ownership against Valler or their successors, the present defendants. Therefore, even if plaintiffs can establish that their 2 year use of the strip was nonpermissive, plaintiffs must tack on another eighteen years use to comply with the requirements for title by adverse possession. This they have not been able to do as plaintiffs must rely on the use by the Corrows and this was permissive. Thus, a necessary requirement for adverse possession is lacking.

In addition, the plaintiffs have failed to prove that their use was exclusive. There is no doubt that plaintiffs and their predecessors in title, the Corrows, made use of the disputed strip of land. There is evidence, however, that defendant likewise made use of the area. Defendant pruned, weeded, fertilized and clipped the hedges which are located along the edge of the strip. He also stored his boat on part of the area, occasionally mowed the grassy section of the strip, and constructed a compost container and a garden behind the garage. These acts of the defendant and his predecessors in title constitute acts of dominion by the defendant consistent with his record title. Thus, the element of exclusive use and possession by the plaintiffs is missing. This tends to negate the plaintiffs' claim of adverse possession. Mendonca v. Cities Service Oil Co., 354 Mass. 323 (1968).

The plaintiffs have made no claim for an easement over the driveway by prescription but even if they had, the evidence produced would not support its establishment. The Court rules that plaintiffs have failed to sustain the burden of proof necessary to claim title by adverse possession as the disputed strip of land was not used exclusively or adversely for a continuous 20 year period.

Plaintiffs have filed thirty-one "Requests for Rulings of Law". In fact, many of the requests are actually for findings of fact. The Court treats these as a "Request for Findings of Fact and Rulings of Law" and rules upon them without differentiating between them. Those numbered 1, 2, 3, 4, 5, 8, 9, 10, 14, 17, 18, 19, 22, 23, 26 and 27 are granted; all others are denied.

Defendant has filed six "Requests for Findings of Fact." Those numbered 1, 2, 3, 4 and 6 are granted; number 5 is denied. Defendant has filed one "Request for a Conclusion of Law" which is granted.

The Court orders that plaintiffs 1) remove that portion of the garage from the disputed premises in or within three months from the date of the final judgment and refrain from using any part of the driveway extending onto defendant's lot as shown on Appendix A; or 2) in the alternative, plaintiff pay the sum of $3,000 dollars to the defendant in return for a deed from defendant of the parcel of land bounded on the southwest by the stockade fence and the garage, on the northeast by the end of the garage, on the northeast by the southwest property line and on the southeast by Shirley Avenue, all as shown on Appendix A, said conveyance to be made in or within three months from the date of judgment.

Judgment accordingly.

exhibit 1