DANIEL P. RYAN and FLORENCE RYAN vs. PASQUALE LOCHIATTO and CONSTANCE LOCHIATTO.

This action came on to be heard upon the plaintiffs' petition for a declaratory judgment that they have acquired title by adverse possession to a "disputed parcel" measuring 10 feet by 35 feet located adjacent to the plaintiffs' property at 2-2A Elmwood Court, Malden, Middlesex County, Massachusetts. The defendants, record owners of the disputed area, have counterclaimed seeking damages and asserting that the plaintiffs' use of the disputed area was permissive at all times. The defendants have also moved for a directed finding that the plaintiffs have offered insufficient evidence to show that they have acquired title to the defendants' property by adverse possession.

A trial was held on March 3, 1988 at which a stenographer was sworn to record and transcribe the testimony. Nine exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

I find the following:

1. The plaintiffs, Daniel and Florence Ryan, have owned the property at 2-2A Elmwood Court, Malden, Middlesex County since November 22, 1974. The property was previously owned by Daniel Ryan's mother, Gertrude Ryan Hardin, from June 11, 1946 to November 22, 1974.

2. The defendants, Pasquale and Constance Lachiatto, have owned the property at 30 Acorn Street, Malden, Middlesex County since November 1984. The property was owned by Mildred Cox, also known as Mildred Sidebottom, (hereinafter referred to as Mrs. Sidebottom) from April 4, 1947 to 1984.

3. The dispute parcel is located on the defendants' land and measures 10 feet by 35 feet and is in close proximity to the plaintiffs' front porch.

4. The plaintiffs and Gertrude Ryan Hardin have used the disputed area for parking cars and have removed snow from the disputed area for a period in excess of 28 years.

5. Between 1971 and 1972, the City of Malden, using government funds, paved a large portion of the disputed parcel.

6. A large tree extends onto the disputed parcel from its easterly boundary line.

7. Gertrude Ryan Hardin by affidavit admitted that Mrs. Sidebottom never objected to the parking of cars in the disputed area.

8. The plaintiff Daniel Ryan admitted that on one occasion, while he was working on his automobile, Mrs. Sidebottom walked over to the disputed parcel and told him, "Don't get any oil on my land" to which Mr. Ryan answered, "Yes, o.k."

9. Daniel Ryan admitted that in 1982 he place a "No Trespassing" sign on the tree on the disputed parcel after asking Mrs. Sidebottom for permission to do so.

10. Daniel Ryan admitted that he asked Mrs. Sidebottom for permission to erect a fence on the disputed parcel. She refused to give such permission. No fence was erected.

11. The defendant Pasquale Lachiatto and his sons worked for Mrs. Sidebottom as a caretaker and doing odd jobs from 1963 until his purchase of the property. Mr. Lachiatto was told by Mrs. Sidebottom that the Ryans had permission to park on the disputed parcel.

12. In 1965, Mrs. Sidebottom hired a surveyor, Mr. Coughman, to survey the side and back portion of her land. Mr. Coughman returned a second time and staked out the disputed parcel placing bounds on the 10 foot by 35 foot strip adjacent to the plaintiffs' property.

13. William Casterini, an abutter and neighbor of the Ryans and Mrs. Sidebottom since the 1940's, never observed Mrs. Sidebottom shouting at or arguing with the Ryans.

The defendants Lachiatto assert that the plaintiffs' use of the disputed area was permissive at all times. In the amended complaint filed with this Court, the plaintiffs allege that Mrs. Sidebottom knew and approved of the use of the disputed area by the plaintiffs' parents and later by the plaintiffs from 1946 until 1983. Daniel Ryan admits that on at least two occasions he asked Mrs. Sidebottom for permission to erect a sign and a fence on the disputed area. In Mrs. Hardin's affidavit filed prior to trial, she asserts that Mrs. Sidebottom never objected to the parking of cars in the disputed area. The testimony of Mrs. Hardin is inconsistent. It varies from allegations that her relationship with Mrs. Sidebottom was friendly to assertions that Mrs. Sidebottom would yell at her and her family everyday regarding the plaintiffs' use of the disputed parcel and to statements that Mrs. Sidebottom would only talk to Mrs. Hardin's parents. Mrs. Hardin's testimony regarding her responses to Mrs. Sidebottom range from Mrs. Hardin responding that the disputed area belonged to the Ryans to one of a friendly response or no answer at all. Based upon the above, I find and rule that the plaintiffs knew at all times that the disputed area belonged to Mrs. Sidebottom and that the use made by the Ryan family was made with the knowledge of and acquiescence by Mrs. Sidebottom and was permissive at all times.

Accordingly, the plaintiffs have not proven a use of the disputed area in excess of twenty years which was open, exclusive, notorious and adverse, such as to acquire title by adverse possession, nor have they established a use which was open, notorious, uninterrupted and adverse for over twenty years sch as to acquire an easement by prescription. See Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Glenn v. Poole, 12 Mass. App. Ct. 292 , 295 (1981); G.L.c. 187, §2. The defendants' motion for a directed finding is hereby allowed. The defendants' counterclaim for damages is herein denied.

The plaintiffs and defendants have submitted various requests for findings of fact and rulings of law. I have not attempted to rule on each of said requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.