LLOYD HANNULA and JOYCE HANNULA vs. ELM STREET CONGREGATIONAL CHURCH.

The Plaintiffs brought this action on October 23, 1981, seeking the following relief: (1) that Plaintiffs be declared the owners, by adverse possession, of a strip of land 20 feet wide and 141.6 feet long, which they allege is their northern boundary line as shown on Appendix A, [Note 1] (2) that the Defendant be ordered to remove the fence it has constructed; (3) that the Defendant be compelled to execute a deed conveying any and all right, title and interest in the area in dispute to the Plaintiffs, their heirs and assigns. In thealternative, the Plaintiffs allege the establishment of an easement by prescription over the area and that the Defendant be compelled to remove the fence it has constructed.

By way of answer, Defendant Church [Note 2] (hereinafter the Church) asserts that Plaintiffs do not have title or an easement to the strip of land and that they be ordered to pay reasonable counsel fees. A trial was held at the Land Court on April 22, 1982 and astenographer was sworn to record and transcribe the testimony. Ten witnesses testified and sixteen exhibits were admitted into evidence and are incorporated herein for the purpose of any appeal. A view was taken by the Court on May 7, 1982 in the presence of counsel. Oral arguments were heard on October 19, 1982. Briefs were submitted on April 22, 1982 on behalf of Plaintiffs and October 19, 1982 for the Church.

On all the evidence the Court finds the following facts:

1. The common grantor of both Plaintiffs and the Church was one Henrietta Bagley who by deed dated December 10, 1907 and recorded in Book 223, Page 127, [Note 3] conveyed a ten acre parcel, to Marcia H. Bagley. (Exhibit 10). This ten acre parcel was bounded on the east by the road - now East St. - and on the west by the high water mark of the reservoir.

2. By deed dated May 20, 1915 and recorded in Book 304, Page 639, Marcia H. Bagley in turn conveyed a portion of this tract with road frontage to Albina J. Williams, (Exhibit 3), and by deed dated March 13, 1919 and recorded in Book 350, Page 209, the latter conveyed this portion to Theodore N. Tucker. (Exhibit 9).

3. Theodore N. Tucker occupied the premises from March 13, 1919 up to at least October 30, 1954. He operated a doughnut shop in the building to the south of the house where he sold baked goods at retail; in addition he used to make deliveries of the doughnuts in his Packard car.

4. By deed dated August 26, 1943 and recorded in Book 591, Page 272, Theodore N. Tucker conveyed the southerly portion of the premises not here in issue to one William H. Jenkins, et ux. (Exhibit 13).

5. By deed dated October 30, 1954 and recorded in Book 750, Page 127, Theodore N. Tucker deeded the remaining portion of the premises (hereinafter the tract which included a houseand a bake shop) to himself, to his daughter Ethyl McCoy and to his granddaughter Helen V. Nestor as joint tenants. (Exhibit 8), See Appendix A.

6. After Theodore N. Tucker's death by deed dated November 17, 1958 and recorded in Book 828, Page 394, the said Ethyl M. McCoy and Helen V. Nestor conveyed the tract to themselves and Guy H. McCoy who was Ethyl's husband but not Helen's father. (Exhibit 7).

7. Mr. and Mrs. McCoy lived on the tract from 1954 through 1967. Helen V. Nestor visited her grandfather Theodore Tucker as a child and played in the driveway area. As an adult she often visited her mother, Mrs. McCoy, and Mr. McCoy from 1954 through 1967, and parked her car in the driveway area. Mr. McCoy parked in the driveway area which was maintained during these years by the McCoys. Mr. Tucker's Packard was often observed parked in the area from 1947 on by Herbert P. Philips, a neighbor who lived across the street.

8. By deed dated June 7, 1961 and recorded in Book 881, Page 371, Ethyl M. and Guy H. McCoy and Helen V. Nestor conveyed the tract to Ethyl M. McCoy, (Exhibit 6), and by deed dated January 19, 1967 and recorded in Book 1001, Page 349, Ethyl conveyed it to Plaintiffs Lloyd K. and Joyce I. Hannula. (Exhibit 2) See Appendix A. The Hannulas have lived there from 1967 to date and have used the driveway as their own, maintaining it and parking both of their cars thereon. Additionally, they erected a basketball hoop at the northeastern end of the driveway for their children to use as may be seen in the photo, Exhibit 12. Over the years various trees have been cut by the Plaintiffs.

9. The Church has owned the balance of the ten acre parcel originally owned by Marcia H. Bagley (Exhibit 10, Paragraph 1) for many years although its deed was not put into evidence. The Church operated a summer camp on this property using the reservoir, or lake, for waterfront activities and conducting Bible study classes, church services and picnics there. Additionally, three "summer camp" cottages are located on the church property and are rented out in the summer.

10. There was evidence and the Court finds that at least one tenant of the summer camp parked in the dr iveway back in the year 1958 before the Plaintiffs owned the tract and that at least once during the summer of 1965 and 1966 the brother-in-law of a tenant of the "upper" camp parked in the driveway.

11. Members of the Church, particularly the youth group, each year around Memorial Day, would gather and clean up the camp area including portions of the driveway area. Repairs were made to the summer camp by Church members and in 1965 or 1966 siding was put on the upper camp by witness Frank Guglietti and others who often worked evenings and weekends to complete the job. Cars were parked in the driveway while repairs were made to the rear porch of a camp in 1965 and 1966.

12. In June of 1980 Mr. William A. Tilson as Chairman of a Church Committee, Waino Johnson, caretaker of the camp, Frank Guglietti, Fred Harris and two other Church members talked with Mrs. Hannula about the area in dispute. There was talk about the Church selling or leasing the area to the Hannulas but there was no resolution of the problem.

13. The Court finds that the area in question was mutually maintained by the Church and the Hannulas. The Church was aware of the Hannulas' use of the property and did not object to it as they were neighbors. Both the Church and the Hannulas used the driveway portion of the disputed area at various times. Neither Plaintiffs nor the Church were aware of the location of the line and in 1979 the Church had the area surveyed. During the survey Mrs. Hannula walked the area with Mr. Johnson, and apologized for cutting down a tree at the end of the driveway. Mr. Johnson gave her permission to cut down an apple tree, also apparently in the disputed area. However, it would appear that both parties hereto over the years cut trees and branches in the disputed area.

14. On November 11, 1980, the Church erected a split rail fence along the boundary line blocking off the disputed driveway as shown on Appendix A.

There are two questions before the Court for consideration: 1) Do Plaintiffs have title by adverse possession to the area claimed; and 2) if not, have the Plaintiffs an easement by prescription over the driveway portion of the area claimed.

I. Have Plaintiffs established title by adverse possession to the strip of land used as the driveway?

The Court answers this in the negative.

In order 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 by a preponderance of the evidence and if any element is left in doubt the claimant cannot prevail. Gadreault v. Hillman, 317 Mass. 656 (1945), Cohasset v. Moors, 204 Mass. 173 (1910). In applying these principals to the present case it is apparent that Plaintiffs have not sustained their burden of proof. The area claimed by the Plaintiffs is set forth as being a 20-foot strip of land along the northerly line of Plaintiffs' lot from East Road to Plaintiffs' lot line 141.6 feet to the rear. Although the complaint alleges that they have acquired the entire 20-foot strip by adverse possession, the only credible evidence offered at trial concerned the driveway area which comprises a portion of the 20-foot strip as shown on Appendix A. Thus, only the driveway area will be considered by the Court.

The area in contention is as shown on Appendix A, being a gravelled or dirt parking area for automobiles and an extension of a driveway bordered by evergreen trees curving to the southwest. The Church's split rail fence extends from the street to the Plaintiffs' rear line and cuts off their use of the parking area and driveway.

There was testimony that Plaintiffs and their predecessors in title, Mr. Tucker and Mr. and Mrs. McCoy, used the disputed driveway area. However, there was also testimony that the Church used the driveway area. (See paragraphs 10, 11, and 13 herein.) Although church members did not park in the driveway regularly, there was some parking activity over the years. Additionally, Mr. Harris, Mr. Guglietti and Mr. Tilson testified that they cleaned the area on a yearly basis with a clean up crew composed of church members. Mr. Johnson's testimony was that he maintained the driveway area and cut trees and branches. It appears to the Court that neither the Plaintiffs and their predecessors in title nor the Defendant Church really had any clear knowledge of the whereabouts of the dividing line between their properties. It also would appear that the exact location of this line in this area out in the country was of little import until recently. On the view the Court observed the Plaintiffs' well kept house and garden as well as the Church property located in the trees bordering a lake in the rear. From the evidence it appears that both the Plaintiffs, particularly in the winter when the camp was closed, and the Church, particularly in the summer when the camp was open, used this area amicably, with neither bothering the other. Neither used it to the exclusion of the other and neither was very certain of the location of the boundary line.

The Court finds and rules that neither Plaintiffs' nor the Church's use of this driveway area was exclusive. The Court further finds and rules that Plaintiffs' use of the area was more consistent with the acquisition of an easement by prescription than the acquisition of a fee.

II. Do Plaintiffs have an easement by prescription over the driveway area?

In order to establish an easement by prescription it is necessary to prove use which was open, notorious, continuous and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964), Tucker v. Poch, 321 Mass. 321 (1947).

Applying these principles to the facts herein it is apparent and the Court has found that the Plaintiffs and their predecessors in title, have throughout this whole period from 1919 to the present, made some use of the driveway area as outlined on Appendix A. Cars were parked in the driveway near the street and were driven to the rear of Plaintiffs' lot down the driveway outlined by the evergreen trees as shown on Appendix A. There was evidence that Mr. Tucker used to park his Packard in the driveway area, that Mr. McCoy and Helen Nestor, Mr. Tucker's granddaughter, did likewise. (See Paragraph 7 and 8 herein). The Plaintiffs have used the driveway from 1967 on mutually maintaining it with the Church and parking two cars thereon. This use, as the Court has found, was open, adverse and continuous from 1919 on. It was not, however, exclusive as the Church members made use of it also, but for an easement by prescription the use need not be exclusive. Tucker v. Poch , 321 Mass. 321 (1947) and cases cited therein.

The Court finds and rules that the Church, at least impliedly, acquiesced in the Plaintiffs' use and enjoyment of the land. Implied acquiescence is not necessarily the same as permission. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 at 763 (1964). Adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto. Ivons­Nispel, supra, at 763 citing Sargent v. Ballard , 9 Pick. 251 , 254. The Court arrives at this decision after a careful examination of the evidence and is satisfied that neither Plaintiffs nor their predecessors in title ever received permission to use the Church's land. The Church has offered no explanation for Plaintiffs' and their predecessors' use of the driveway area and has not shown that it had any control over their use. ". . . Wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right, and will be sufficient to establish title by prescription . . . unless controlled or explained." Flynn v. Korsack, 343 Mass. 15 , 18 (1961).

The Court finds and rules that the Plaintiffs have established an easement by prescription over the area as delineated by the planted trees and driveway as shown on Appendix A. The Court expects that both parties will respect each other's rights in the easement and continue to be good neighbors.

The Court orders that the fence erected by the Defendant be removed from the point of intersection of the arc formed by the evergreens with Plaintiffs' lot line westerly to the street.

Defendant has filed a document entitled "Defendant's Request for Rulings" which contains 18 Requests. Those numbered 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 16 are allowed. Those numbered 1, 2, 9, 10, 15 are denied; numbers 17 and 18 are not applicable.

Judgment Accordingly.

exhibit 1