ROBERT E. TEMPLE and CATHERINE A. TEMPLE vs. EUGENE KLEMM and CLARA KLEMM

Robert E. and Catherine A. Temple ("Plaintiffs") commenced Miscellaneous Case No. 120193 on June 16, 1986. The Plaintiffs are owners of a parcel of real estate shown as Lot 83 ("Lot 83") on a plan entitled "Plan of Portion of Section B, Indian Lake Shores, in Marlboro, Mass." dated April 26, 1943 and recorded in the Middlesex South District Registry of Deeds, [Note 1] Book 6674, Page 327, and further described in a deed recorded in Book 11544, Page 709. Said plan also shows Lot 82 adjacent to Lot 83. Miscellaneous Case No. 120193 is an action to recover damages and to establish their title to a certain parcel of real estate ("disputed area") adjacent to Lot 83, the record owners of which are Eugene and Clara Klemm ("Defendants"). The Defendants' parcel is described in a deed recorded in Book 7534, Page 281 and shown on the aforementioned plan. On July 10, 1986, the Defendants filed an answer including therein a counterclaim for trespass.

Subsequently, on October 23, 1986, the Plaintiffs commenced Case No. 42000, a proceeding pursuant to G.L. c. 185 in which they seek to register and confirm title to Lot 83 and a portion of Lot 82 ("disputed area''), all as shown on a plan entitled "Plan of Land in Marlborough, Mass." dated February 4, 1986 and filed with the Court as Land Court Plan No. 42000 ("Chalk A"). [Note 2] On October 28, 1987, the Court granted the Plaintiffs' motion to consolidate these two actions.

A trial was held at the Land Court on November 3, 1987 at which all testimony was tape recorded and transcribed, and on January 19 and February 4, 1988 at which a stenographer was appointed to record and transcribe the testimony. Seven witnesses testified and eighty-seven exhibits were admitted into evidence. Three chalks were also provided to assist the Court. All exhibits and chalks have been incorporated herein for the purpose of any appeal. At the close of the Plaintiffs' case, the Defendants brought a motion to dismiss.

On all of the evidence, I find and rule as follows:

1. The Defendant, Eugene Klemm, and his cousin, William Haag, purchased Lot 82 by deed dated August 2, 1943 and recorded in Book 6697, Page 528 (Exhibit No. 61).

2. George J. Guertin, uncle of the Plaintiff, Robert E. Temple, purchased Lot 83 from Ralph E. and Thelma Malhoit by deed dated August 20, 1947 and recorded in Book 7177, Page 172 (Exhibit No. 48).

3. On January 25, 1950, William Haag conveyed his one-half interest in Lot 82 to the Defendants.

4. George J. Guertin conveyed Lot 83 to his wife, Muriel V. Guertin, on September 17, 1959 by deed recorded in Book 9462, Page 365 (Exhibit No. 49).

5. On July 24, 1968, the Plaintiffs purchased Lot 83 from Muriel V. Guertin by deed recorded in Book 11544, Page 709 (Exhibit No. 50).

6. On May 1, 1973, the Haags conveyed Lot 81, the lot adjacent to Lot 82 on the westerly side, to their nephew Richard Peters and his wife, Linda Peters. The Peters and the Defendants are cousins. The Peters spent summers on the property and generally looked after Lot 82 in the Defendants' absence.

7. In the Land Court title examiner's abstract filed on April 13, 1987, it was found that the disputed area constitutes a portion of Lot 82. The disputed area is triangular in shape and contains approximately 600 square feet. As depicted on Chalk "A", this area is bounded easterly by an 89 foot chain link fence running along the record boundary of Lots 82 and 83 from Lake Shore Drive to the Fort Meadow Reservoir ("Reservoir") and westerly by a 93 foot stone wall which runs at an angle from Lake Shore Drive to the Reservoir. A 13 foot stone retaining wall runs along the Reservoir which constitutes the base of the triangle.

8. Commencing in 1943, the Defendants made annual summer visits to their property. There they swam, pitched horseshoes and had picnics. The children played on a swing which was strung from a tree between Lots 81 and 82. These visits continued with the same frequency and in a similar fashion until the Haags sold their property to the Peters in 1973.

9. In 1943, Mr. Klemm traversed Lot 82, and in the course thereof, discovered what appeared to be two stone bounds, one in the northeasterly corner of the lot and the other in the southeasterly corner. Visibility across Lot 82 looking towards Lot 83 was somewhat impaired due to the wooded condition on the easterly side of the property. In 1962, Mr. Klemm had Lot 82 surveyed. This survey plan was not offered into evidence. At this time, he discovered a low stone wall with a picket fence atop it, running approximately from the street to the Reservoir.

10. Between 1947 and 1948, the Plaintiffs visited the Guertins at Lot 83 approximately ten times. There, they had picnics and cookouts, and also engaged in such activities as swimming, fishing, boating, baseball and croquet. At times the family children played on the stone wall situated on the westerly boundary of the disputed area. In the course of all of these activities, they crossed over the disputed area, which at all times appeared to be part of the Guertin property.

11. In 1950, the Plaintiffs were married. From that time until 1968, they visited the premises six to ten times yearly. In 1955, a three foot high picket fence was erected on the aforementioned stone wall. At times an aluminum boat, a canoe and stacked wood were placed along this wall. There was also a smaller stone retaining wall running along the Reservoir at the base of the disputed area. In addition, there was grass, shrubbery, a clothes drying rack, lawn furniture and a septic tank within the disputed area. The disputed area was maintained and landscaped by the Guertins from at least 1947 to 1968, and by the Plaintiffs thereafter in the same manner as was Lot 83.

12. After purchasing Lot 83 in 1968, the Plaintiffs continued to use the disputed area in the same manner as they had in the past. The first change made within the disputed area occurred in 1970 when the clothes drying rack was moved to the easterly side of Lot 83.

13. On October 16, 1973, the Plaintiffs sent the Defendants a letter inquiring as to whether or not Lot 82, in its entirety, was for sale. This inquiry was prompted by the Plaintiffs' desire to construct a two-car garage in which to house their vehicles during the winter, and to gain easier access to their house and the waterfront from Lake Shore Drive. In addition, Mr. Temple telephoned Mr. Klemm at some time in 1973 or 1974 with the same inquiry. The Defendants responded that they were not interested in such a sale at that time.

14. In the late summer of 1974, the Plaintiffs relandscaped the entire rear yard of Lot 83, including the disputed area. This project was completed by five or six construction workers, using equipment, over the course of three months and included the addition of three tiers of railroad ties which extended into a partially reconstructed stone wall, the widening of the stairs leading down to the reservoir, the planting of bushes, flowerbeds and a new lawn, and the installation of underground electrical wires. The Defendant contends that during the relandscaping project the Plaintiffs altered the stone wall located in the disputed area by increasing its height and causing it to bend at an angle. Based on the testimony of the Plaintiffs' and photographs of the wall which were offered into evidence at trial, however, I do not so find. The Plaintiffs did not request permission from the Defendants prior to commencing these improvements nor at any time prior thereto, did they have a survey of Lot 83 performed. They did, however, receive permission from Mr. Peters to transport a small Bobcat bulldozer over Lot 82. I do not interpret this request to have included the disputed area.

15. In June of 1984, Mr. Klemm and Mr. Peters noticed a large cement block wall in the northeasterly corner of Lot 82. They subsequently learned that the Plaintiffs were constructing a carport and immediately voiced their concern that the wall may be extending over the property line. Thereafter, Mr. Klemm had Lot 82 surveyed. This survey indicated that the Plaintiffs' improvements were in fact encroaching onto Lot 82. It appears that until this survey, none of the parties were aware of the location of the record boundary of the lots. Subsequently, between December of 1984 and January of 1985, the Defendants erected a chain link fence along the record boundary line between Lots 82 and 83.

The Plaintiffs seek to establish title to the disputed parcel under the doctrine of adverse possession. For the Plaintiffs to succeed, they must sustain their burden of proving that without interruption for twenty years, they or their predecessors in title used the disputed area in a manner which was actual, open, notorious, exclusive and adverse. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979), review denied, 394 Mass. 1104 (1985) ; Ryan v. Stavros, 348 Mass. 251 , 262 (1964) ; Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). Consequently, if the Plaintiffs fail to prove any one of these elements, they cannot prevail. Gadreault v. Hillman, 317 Mass. 657 , 661 (1945). Whether these elements are sufficiently proven is essentially a question of fact because the nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purpose for which it is adapted and the uses to which it has been put. Kershaw at 320 citing LaChance v. First National Bank and Trust Co., 301 Mass. 488 , 490 (1938). Hence from the standpoint of the true owner, the purpose of these various requirements is to put him on notice of the hostile activity of the possession, so that he, the true owner, may be afforded an opportunity to take steps to vindicate his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959) ; Dow v. Dow, 243 Mass. 587 , 593 (1923). On all the evidence, I find and rule that the Plaintiffs have established title to the disputed area based on the doctrine of adverse possession.

The Plaintiffs purchased Lot 83 on July 24, 1968. They commenced their action for adverse possession of the disputed area on June 16, 1986. The Defendants' answer was filed on July 10, 1986, and they had erected the chain-link fence in December of 1984. Accordingly, to meet the twenty years required for adverse possession in Massachusetts, the Plaintiffs must tack on at least a portion of the period during which the Guertins possessed the disputed area and must demonstrate that such possession was adverse to the Defendants. See Kershaw at 320. While the Plaintiffs testified that they used the disputed area in the course of their summer visits to the Guertins between 1947 and 1968, no testimony from the Guertins was introduced at trial. The Plaintiffs did, however, introduce photographs dated as early as 1958 which show the well-maintained condition of the disputed area, the picket fence on top of the stone wall and use of the disputed area in the course of summer activities. I find such evidence to be consistent with the Plaintiffs' testimony and rule accordingly that the Plaintiffs may tack the Guertins' use of the disputed parcel from at least 1958 to 1968. Similarly, there is competent evidence that the Plaintiffs used the disputed area for summer activity and in the course of many improvements thereafter from 1968 to 1984. I conclude that the area in question has been used in a manner sufficient to establish possession for at least twenty years.

Recognizing that Mrs. Guertin did not testify at trial, the law is clear that wherever there has been use of property for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription unless such use is either controlled or explained. Truc v. Field, 269 Mass. 524 , 529 (1930) ; Tucker v. Poch, 321 Mass. 321 , 324 (1947) ; Flynn v. Korsack, 343 Mass. 15 , 18 (1961). Further, where one uses property owned by another in a manner which demonstrates that he neither recognizes nor considers himself to be subject to an authority in the other to prevent such use, the use will be deemed adverse. Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976). During their respective terms of ownership of Lot 83, the Plaintiffs and the Guertins exercised a degree of dominion and control over the disputed area which is consistent with a belief that they owned the disputed area.

The Defendants base their argument that the Plaintiffs' use of the disputed area was permissive primarily on the fact that Mr. Peters allowed the Plaintiffs to transport large, heavy objects over Lot 82 and onto Lot 83 and permitted them to store small boats there as well. The Defendants' position is misplaced, as evidence and testimony offered at trial indicate that such permission could not reasonably have been directed specifically at use of the 600 square foot disputed parcel. Photographs offered into evidence show that the Plaintiffs' boats were stored on the westerly side of the stone wall, and hence, outside the scope of the disputed area. Accordingly, as the Plaintiffs' actions with respect to the disputed area demonstrate no recognition of authority in the Defendants to prevent or permit the continuance of the use, I find their use of the disputed parcel to be adverse. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979) citing Ryan v. Stavros, 48 Mass. 251 , 263 (1964).

The elements of open and notorious use of the disputed parcel have also been established by the Plaintiffs. For a use to be open, it must be carried out without any attempt at concealment. Foot v. Bauman, 333 Mass. 214 , 218 (1955) citing American Law of Property, §8.56. To be notorious, a use must be known to those 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. Id. In the present action, the Plaintiffs clearly used the disputed area without any attempt at concealment. They placed objects such as a clothes drying rack and lawn furniture in the disputed area and crossed over it while engaging in summer activities and to gain access to the house. They erected a picket fence atop the stone wall in the disputed area and landscaped and maintained the area as if it were their own. They hired workers to relandscape the rear yard, including the area at issue, and to construct a carport which extended into such area as well. Further, the disputed area was visible to persons swimming or boating on the Reservoir and to persons walking along Lake Shore Drive. Moreover, their use was notorious. Although the Defendants argue that the Plaintiffs' use was not notorious because the thickly wooded east side of Lot 82 provided minimal opportunity to observe such use, a reasonable inspection of Lot 82 would have revealed such use. The Defendants waited until 1984 to voice their concern that the Plaintiffs had encroached upon Lot 82, despite their having had a fair chance of protecting themselves by such an inquiry at a much earlier date. See Foot at 218. It strains reason to believe that, had they been aware of the record boundary lines, the Defendants could have visited the property (Lots 81 and 82) adjacent to Lot 83 annually for some forty years without ever being alerted to the Plaintiffs' use of the disputed area. Consequently, as the Plaintiffs' use of the disputed area was so apparent that the Defendants may be presumed to have known of it, the Defendants are chargeable with such knowledge. Foot at 218 citing Deerfield v. Connecticut River Railroad, 144 Mass. 325 , 338 (1887) and Gray v. Cambridge, 189 Mass. 405 , 418 (1905).

Lastly, as to the requisite element of exclusivity, the Plaintiffs must prove that they used the disputed parcel under claim of right and with the intention to hold the same as an owner and to the exclusion of everyone else. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). Acts of enclosure or cultivation constitute evidence of exclusive possession. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). In the instant matter, the Plaintiffs and their predecessors in title used the area in question exclusively. They exercised dominion and control over the area by maintaining the wall and lawn, and by planting bushes and flowerbeds. These actions are illustrative of exclusive possession and such a finding is consistent with the great majority of cases which hold that to satisfy the requirements of title and hostility of possession, the possessor need only enjoy and use the property continuously and exclusively for twenty years as the average owner would use it, without the consent of the true owner. American Law of Property, §15.4. Therefore, since the Plaintiffs' use of the disputed area was apparent to the Defendants and evidenced an intention to use and appropriate such area to their own benefit and to the exclusion of all others, there is sufficient evidence to also warrant a finding that their possession was actual. LaChance v. First National Bank and Trust Co., 301 Mass. 488 , 490, 491 (1938).

On all of the evidence, I therefore find and rule that the Plaintiffs are entitled to a decree registering and confirming title to all of the land as petitioned for, subject to such other matters as may appear in the abstract, and which are not material hereto. I further rule that the Defendants be given ninety (90) days from the entry of a final decision on the matter herein to remove the chain link fence from the disputed area.

As to Land Court Plan No. 42000, the Defendants are hereby given ten (10) days from the date of this decision to notify the Court of their objection to its admission as an exhibit. If no such notice is filed within this time, I will assume that the Defendants have agreed to the plan's being admitted.

The Plaintiffs have submitted thirty-two requests for findings of fact, which I have considered. Certain of these requests have been granted and are incorporated herein. I have taken no action on the remainder, as I have made my own findings as to those facts which I deem to be pertinent.

Judgment accordingly.