LOUIS K. FRANK and FRANCES G. FRANK vs. OTTO GASPAR, ANNALIES GASPAR, STEFAN GASPAR and MADRID GASPAR.

Louis K. and Frances G. Frank ("Plaintiffs") are the owners of a parcel of land ("Lot 29") described in a deed recorded at the Middlesex South District Registry of Deeds [Note 1] in Book 8735, Page 411, shown on a plan entitled, "Subdivision of Country Club Estates in Newton, Massachusetts", dated July 26, 1944, recorded at the end of Book 6930 [Note 2] and more commonly referred to as 10 Travis Drive, Newton, Massachusetts. On March 4, 1987, they commenced this action to establish their right, title and interest in a portion of an adjacent parcel ("disputed area"), the record owners of which are Otto and Annelies Gaspar ("Defendants"), and to obtain an order assessing damages against the Defendants for trepass.

A trial was held at the Land Court on August 2 and August 25, 1988 at which a stenographer was appointed to record and transcribe the testimony. Four witnesses testified and ten exhibits were introduced into evidence. One chalk was also provided to assist the Court. All exhibits, chalks, and pleadings have been incorporated herein for the purpose of any appeal. The disputed area was viewed by the Court in the presence of counsel on November 2, 1988.

The Plaintiffs base their case on continued use of the disputed area for a period in excess of twenty years. The Defendants contend that because such use was neither continuous, exclusive or adverse, they cannot prevail. I find and rule that the Plaintiffs have used a portion of the disputed area in a manner, and for a period of time, sufficient to succeed in this action.

On all of the evidence, I find the following facts:

1. The Plaintiffs purchased Lot 29 from Phineas and Stecia Berenson by deed dated May 31, 1956, recorded in Book 8735, Page 411 (Exhibit No. 2).

2. George A. and Judith H. Goodman purchased the property located at 4 Travis Drive ("Lot 30") from Mary Regan by deed dated December 17, 1952 (Exhibit No. 8), recorded in Book 8010, Page 592.

3. Oscar D. Freedgood purchased Lot 30 from the Goodmans by deed dated August 31, 1970 (Exhibit No. 9), recorded in Book 11884, Page 64.

4. On December 21, 1970, the Plaintiffs and the Freedgoods executed an Easement Agreement ("Agreement") (Exhibit No. 7) whereby perpetual easements for passage and repassage along the driveway running between their respective properties were exchanged. The parties therein agreed that vehicles would at no time be parked in the driveway and that maintenance costs would be borne by them equally. The parties further agreed that the Agreement would in no way modify the lot lines of their respective lots. At the time the Agreement was executed, both the Plaintiffs and the Freedgoods reasonably believed that the boundary line between Lots 29 and 30 was an old wooden fence.

5. Lot 30 was conveyed from the Freedgoods to Thomas G. Worobec on October 28, 1980 by deed recorded in Book 14114, Page 296. Thereafter, on July 12, 1984, the Defendants; Otto and Annelies Gaspar, purchased the premises by deed recorded in Book 15679, Page 78. At present, Lot 30 is occupied by the Defendant, Stefan Gaspar.

6. As shown on a plan entitled, "Plan of Land in Newton, Mass." dated November 14, 1986 (Exhibit No. 1), a portion of which is attached hereto, the disputed area is a triangular shaped parcel comprising a southerly portion of Lot 30. The disputed area may be divided into three distinct portions: 1) a common driveway area; 2) a rear year area of approximately twelve (12) feet in width and thirty (30) feet in length, containing about 360 square feet; and 3) a steep wooded hill area.

7. Some time between 1953 and 1954, Mr. Goodman erected a wooden fence on Lot 30. He placed the fence where he believed the record boundary line to be located, rather than on the actual lot line described in both his deed and the plan referred to therein. This fence remained intact until its removal by the Defendants in January of 1987. The Goodmans planted fir and pine trees along their side of the fence and maintained that area until 1970. Further, during their term of ownership, the Goodmans raised no objection to the Plaintiffs' use of the disputed area, inasmuch as they thought it belonged to the Plaintiffs.

8. Upon purchasing Lot 29 in 1956, the Plaintiffs understood their westerly lot line to run across the driveway and along the length of the Goodmans' fence. Accordingly, from 1956 to approximately 1987, they maintained the rear yard area by planting grass seed, mowing the lawn, and planting shrubbery. In approximately 1983, however, the Plaintiffs began to encounter difficulty in growing and maintaining grass in the rear yard area due to the growth of the pine trees. In 1957, the Plaintiffs hired a builder to install a drainage system running from the stone retaining wall located at the base of the wooded hill, westerly along the old wooden fence and crossing a section of the disputed area to a catch basin in the driveway. The drain remained operative until 1983 or 1984.

9. The Freedgoods resided at 4 Travis Drive from 1970 to 1980. During their period of ownership, they believed the wooden fence separating Lots 29 and 30 to be the record boundary line, assuming it to follow the lot dimensions set out in their deed and the plan referred to therein. On occasion, the Freedgoods observed the Plaintiff, Mr. Frank, maintaining the lawn, trees, and shrubs which grew in the rear yard area, but they did not question such activity.

10. Between 1956 and 1970, the Plaintiffs planted and replanted shrubs and small trees on the wooded hill. Subsequently however, they ceased such active maintenance of the area, as the existence of clay soil and the general topography of that area essentially impeded cultivation. Consequently, this section of the disputed parcel has remained heavily wooded and overgrown since approximately 1970.

11. After purchasing Lot 30 in 1984, the Defendants found the wooden fence to be in disrepair. In addition, they noticed that the area on both sides of the fence was covered primarily with earth, shrubs, and pine needles. Further, they discovered the drain which the Plaintiffs had installed and found it to be nonfunctional. In November of 1986 they had a survey of Lot 30 performed. This survey plan was offered into evidence at trial (see Exhibit No. 1). The survey revealed that the record boundary line between Lots 29 and 30 was approximately ten feet south of the wooden fence. Thereafter, in January of 1987, the Defendants hired workers to construct a stockade fence of approximately six feet in height on the record boundary line. This construction required the removal of certain shrubbery from the Plaintiffs' side of the old wooden fence.

By this action, the Plaintiffs seek to establish title to the disputed area based on the doctrine of adverse possession. To prevail, the Plaintiffs must prove that for twenty years, without interruption, they used the area in a manner which was actual, open, notorious, exclusive, and adverse. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Ottavia v. Savarese, 338 Mass. 330 , 332. Consequently, if they fail to prove every element of adverse possession as to any one portion of the disputed area, they cannot acquire title thereto. Mendonca v. Cities Service Oil Company of Pennsylvania, 354 Mass. 323 , 326 (1968); Gadreault v. Hillman, 317 Mass. 657 , 661 (1945). On all of the evidence, I find and rule that the Plaintiffs have established such title to only the rear yard portion of the disputed area.

The foregoing facts make it clear that the nature of the Plaintiffs' acts from 1956 to 1986 with respect to the rear yard area of the disputed parcel have been sufficient to meet the test for adverse possession. During this time, the Plaintiffs, or workers hired by them, openly maintained and landscaped the rear yard area, without ever requesting or securing permission to do so from the Defendants or their predecessors in title. In fact, testimony at trial reveals that the Defendants and their predecessors actually witnessed the Plaintiffs so using the rear yard area, but at no time did they raise any objection thereto. Hence, the Defendants and their predecessors were put on actual and constructive notice of the hostile activity of the Plaintiffs' possession, and thus had adequate opportunity to vindicate their rights by legal action. Ottavia at 333. The Plaintiffs openly, notoriously, and continuously for twenty years, exercised a degree of dominion and control over the rear yard area consistent with their claim of title thereto. The Defendants contend however, that the twenty years necessary to acquire title by adverse possession was interrupted because the steady accumulation of pine needles on the rear yard area from 1956 to 1986 essentially curbed the Plaintiffs' need and ability to maintain said area. Although a view of the subject parcel reveals minimal growth thereupon at present, the Defendants' predecessors, Mr. Goodman and Mr. Freedgood, testified that during their respective periods of ownership between 1956 and 1980, they actually observed Mr. Frank tending to the area in question. Further, photographic evidence attests to the maintenance of the area even after 1980. Accordingly, I find that the requisite period for adverse possession was met in 1976.

The Plaintiffs' actions with respect to the wooded hill do not meet the requirements for adverse possession. The facts indicate that, until at least 1970, Mr. Frank landscaped and maintained this area by planting small trees and bushes thereupon in an attempt to combat existing erosion problems. At trial, however, he testified that such care of the wooded hill area ended thereafter due to cultivation problems caused by the hill's clay soil. No evidence as to subsequent similar use of the wooded hill area was presented. Consequently, even assuming that the Plaintiffs did so use the wooded hill area from 1956 to 1970, and further that such use was open, notorious, exclusive, and adverse to the Defendants and their predecessors, the duration of such use is insufficient to establish adverse possession.

As to the common driveway portion of the disputed area, the aforementioned facts show that the Plaintiffs commenced use of said area in 1956. From this time until approximately 1970, use of the entire driveway was shared peaceably between the Plaintiffs and the Goodmans. Subsequently in 1970, the driveway became the subject of an Easement Agreement entered into by the Plaintiffs and the Freedgoods, whereby they acquired the right to pass and repass along the full length and width of the driveway. The Agreement bound the parties, their respective heirs, executors, administrators and assigns, and was not intended to modify the lot line between Lots 29 and 30. Obviously, any adverse use of the driveway by the Plaintiffs ended with the execution of the Agreement.

In consideration of the foregoing, I find and rule that the Plaintiffs have acquired title by adverse possession to only that portion of Lot 30 which constitutes the rear yard area of the disputed parcel. I further rule that the Defendants be given ninety (90) days from the entry of a final judgment herein to remove the stockade fence from the disputed area, and that they be assessed the sum of $200.00 for damages done to the Plaintiffs' property in the course of constructing said fence.

The Plaintiffs and Defendants have submitted 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 pertinent.

Judgment accordingly.

exhibit 1