BOSTON SEAMAN'S FRIEND SOCIETY, INC. vs. RIFKIN MANAGEMENT, INC., STEPHEN DUNWELL, ANNA DUNWELL, and the City of Boston. [Note 1]

This is a civil action of trespass involving title to real estate brought under G.L. c. 185, §l (o), an action for declaratory judgment brought under G.L. c. 231A, §1, and an action within the court's general equity jurisdiction as provided by G.L. c. 185, §l (k). The claims are not stated in separate counts. The plaintiff, Boston Seaman's Friend Society, Inc. (Seaman's) claims title to a certain vacant triangular area (the locus) located between a building it owns at 45 Church Street and a building owned by the defendant, Rifkin Management, Inc. (Rifkin), at 39 Church Street. Rifkin and a tenant of one of Seaman's predecessors in title each used approximately one half of the locus as a parking area for cars from the late 1950's until 1978 or 1979. In 1980, shortly after it acquired the premises at 45 Church Street, Seaman's asserted ownership of the entire locus and requested that Rifkin cease its use of the disputed area. Rifkin claims that Seaman's cannot prove it has good record title to the locus and that Rifkin has acquired a part of the locus by adverse possession or that it has a prescriptive easement to park vehicles there.

The case was initially determined by the court upon Rifkin's motion for summary judgment, which the court granted, following a motion for reconsideration, holding, inter alia, that Rifkin had acquired a prescriptive easement to park vehicles in the locus. The appeals court reversed the judgment, and remanded the matter for further proceedings. A trial was held extending over three days, at which a stenographer was sworn to take and transcribe the testimony. Seven witnesses testified, and thirty-three exhibits were accepted into evidence. Among those testifying were a registered land surveyor and a land court title examiner introduced by Seaman's. Rifkin did not introduce a survey, or present a surveyor or title examiner to support its claim of record title to the disputed area. Said exhibits are incorporated herein for the purpose of any appeal. Based on all of the evidence I find and rule as follows:

1. The plaintiff, Boston Seaman's Friend Society, Inc., is a charitable corporation duly organized under the laws of the Commonwealth of Massachusetts with a place of business at 45 Church Street, Boston, Massachusetts.

2. The defendant, Rifkin Management, Inc., is a corporation duly organized under the laws of the Commonwealth of Massachusetts with a place of business at 39 Church Street, Boston, Massachusetts.

3. The land involved is a vacant triangular parcel (the locus) lying between the buildings known as 39 and 45 Church Street, Boston, Massachusetts. The locus' dimensions are approximately 28', by 95', by 9', by 100'. The area of the locus specifically in dispute upon which Seaman's claims that Rifkin is trespassing is a strip of the lot measuring approximately 10' along Church Street by approximately 60' along Rifkin's building.

4. The building at 39 Church Street has been occupied by Rifkin, or predecessor corporations involving the Rifkin family, since at least the mid-1930's. The aforesaid parties occupied the premises as lessees from 1935 or 1936 until 1973, and from 1973 until the time of this action as the owners in fee of the premises.

5. The building at 45 Church Street was constructed in the mid-1950's for Columbia Pictures, as tenant, by the "Poorvu Trust", which then had at least color of title to that portion of the locus upon which the building was constructed. Prior to the construction of the existing building, older buildings on the site were torn down. The property at 45 Church Street actually consists of six separate lots. Seaman's purchased the property in July of 1979 and moved into the building shortly thereafter.

6. A lease was executed between the Poorvu Trust and Columbia on May 22, 1956, and provided, inter alia, the following:

a) The lease was for a term of twenty years with nine successive options to extend, one for a term of ten years and eight options for five years;

b) An option to purchase at the twentieth lease year;

c) Allowing the lessees to make such alterations, additions, or improvements in or to the leased premises as it shall consider necessary or desirable for the conduct, improvement, or expansion of its business;

d) The lessee could sublet the leased premises or any part thereof without consent of the lessors; and

e) That the lessors had the right to enter upon the leased premises for purposes of inspecting the same at reasonable times.

7. At least as early as 1945 when Rifkin was a tenant at 39 Church Street and at the time when Columbia moved into the building at 45 Church Street, the locus was an undeveloped hole in the ground.

8. Soon after Columbia moved into the building at 45 Church Street, Rifkin suggested to Isadore Rogavin, Columbia's Managing agent at 45 Church Street, that they jointly fill in the locus, pave it, and use it as a parking lot. The locus was filled and paved sometime in 1956 or 1957, the cost of which was shared equally by the parties. At this time and at all times during Columbia's occupancy, both Columbia and Rifkin believed they each owned half of the locus abutting their respective buildings.

9. For the following twenty-one to twenty-two years Columbia and Rifkfn both used the locus as a parking lot; Columbia parking two to five vehicles against its building and Rifkin parking four to five vehicles against its building. There was nothing that distinguished Rifkin's vehicles from Columbia's. Rifkin continued to use the parking lot in this fashion at least until the end of 1980. Rifkin did not ask, nor was it given permission, to use that half of the lot it utilized.

10. Sometime between 1960 and 1965 Rifkin installed a spotlight on its building illuminating the locus. No one objected to its installation and Rifkin did not seek anyone's permission in installing it.

11. Sometime between 1978 and 1979 Rifkin posted a no parking sign on its building facing the locus. No one objected to this, nor did Rifkin seek anyone's permission in posting it.

12. Columbia vacated the premises in 1978 or 1979 and the building remained empty for one to two years, at which time Seaman's purchased and occupied it.

13. Upon Seaman's occupancy of 45 Church Street, it approached Rifkin and requested that they share the expense of installing a security fence across the parking lot entrance, which they did. At this point, both parties believed that they were the owners of that half of the lot which abutted their respective buildings.

14. Near the end of 1980, Seaman's notified Rifkin, demanding it vacate the lot and alleging ownership of the entire lot. This notification was accompanied by a surveyor's plan of the area reflecting Seaman's as the owner of the entire locus.

15. The survey which was sent to Rifkin and the one upon which the present action is based is actually a revised survey. Seaman's first commissioned a survey of their property at 45 Church Street, for which the surveyor obtained a copy of the most recent deed into Seaman's and requested from the City of Boston the proper street lines for Church and Winchester Streets. The surveyor then went to the site and laid out the points for the property on the ground. This survey reflected the boundary between 39 and 45 Church Street as being approximately fourteen feet away from Rifkin's building. The surveyor submitted this plan to Seaman's considering it to be a final plan. Seaman's counsel then contacted the surveyor and verbally directed him to move the property line 10.5 feet south so that the line would be within four feet of Rifkin's building and include the disputed area. Seaman's counsel informed the surveyor that there had been a taking by the city of 10.5 feet that was never recorded in the registry of deeds, which resulted in the surveyor having an incorrect starting point for his survey. Seaman's counsel never provided the surveyor any documentation to support his assertions, nor did the surveyor attempt to verify them. Rather, the surveyor complied with the request and submitted a revised survey of the property reflecting the 10.5 foot change. The surveyor could not recall at trial why his revised survey was any more accurate than his first. Also, the revised survey was used only as a chalk at trial, it was never introduced into evidence.

16. The city block upon which 39 and 45 Church Street are situated was taken in fee and in its entirety by the City of Boston in 1868 for the purposes of, inter alia, elevating the area above sea level to permit downhill sewage drainage, and to widen Winchester Street.

17. After the city had completed its widening of Winchester Street, it conveyed a proportion of the land back to at least some of the original owners, in someway reapportioning the block. [Note 2] The conveyances back occurred at various intervals beginning in 1869.

18. The city widened Winchester Street approximately 10.5 feet on its southerly side and also widened Melrose Street an undetermined amount.

19. The city conveyed back the lots on Winchester Street to some of Seaman's predecessors in title in substantially the same proportions as it had originally taken. The lots which originally bounded on Winchester Street were by deed description, however, moved approximately 10.5 feet south, so that their northern boundaries were now the new widened Winchester Street.

20. When the city conveyed back the lots to one of Rifkin's predecessors in title it only deeded back approximately half as much land as was originally taken, and as a result, Rifkin's predecessor in title lost approximately 10.5 feet on its northern boundary.

21. After the conveyances back, both of the aforesaid properties were bounded by a four foot passageway which was carved out of the land of one of Rifkin's predecessors in title. At the present time, a passageway exists beginning at the rear of Rifkin's building on its northern boundary, but it has not been established by either party whether this passageway is in the same location on the ground as the passageway described in the deeds back from the city. The surveyor never testified as to where the passageway was or where it is today on the ground.

22. Since the conveyances back from the city at least one new building has been constructed on Rifkin's lot.

23. Other than the fact that cars have been parked on or near the passageway for more than twenty years and a security fence was erected in 1980, there has been no other evidence relevant to the extinguishment of rights in the four foot passageway.

In order to prevail in a trespass action, "[i]t is the general rule that any actual possession of real estate is sufficient to enable the parties in possession to maintain an action against a stranger for interfering with that possession and that everyone must be a stranger who can show no title and no older possession." New England Box Co. v. C & R Const. Co., 313 Mass. 696 , 707 (1943). In this case, it is the defendant, an abutting land owner, who has been in possession of the disputed area for at least twenty years. For a property owner to prevail in an action for trespass against an abutting land owner who is in possession of a disputed area, the burden is on the plaintiff to show, by a preponderance of the evidence, a superior property interest. A superior property interest in this case can only be shown by establishing where on the ground the boundary line is between the two respective properties.

In this case, the plaintiff introduced numerous deeds and documents and presented a litany of confusing and at times contradictory testimony which, taken as a whole, failed to establish by a preponderance of the evidence the plaintiff's title to the disputed area. [Note 3] In fact, much of the plaintiff's evidence tends to support the defendant's claim of record to that portion of the locus it has been using as a parking area since the late 1950's. Although the plaintiff's alternative claim for declaratory relief under G.L. c. 231A, §1 permits this court to declare either party to be the true owner of the disputed area, neither party presented sufficient title and survey evidence for this court to make such a determination. The plaintiff has established that in 1868 the City of Boston took the city block upon which the locus is located, and that beginning in 1869 and at various intervals thereafter the city deeded back at least a proportion of the block. The plaintiff has further established that both Winchester and Melrose Street were widened at that time and as a result the block in question was reapportioned. The plaintiff further established that when the city deeded back the properties, Rifkin's predecessor in title lost approximately 10.5 feet on its northerly boundary in favor of that same footage for Seaman's predecessors in title on their southerly boundary.

Unfortunately, the plaintiff failed to produce a full title examination to show what subsequent facts may have affected title in the locus. Instead of introducing a title examination of the locus, the plaintiff produced a title examiner who had not conducted an examination of the title. The title examiner simply testified regarding selected documents presented to him by the plaintiff's counsel. This form of testimony provided no useful basis for the court to find whether or not any conveyances have occurred which may affect record title to the locus.

While this is problematic in and of itself, more troublesome is the fact that the plaintiff failed to produce a reliable survey of the locus, so as to fix the critical location of the boundary on the ground between the two properties. Seaman's did in fact commission a survey of the locus. However, as noted in the findings, while the surveyor testified at trial, the actual survey was only used as a chalk at trial and was not actually introduced into evidence. Even if the survey had been introduced, it would have been of little value in fixing the boundaries between the two properties due to the surveyor's questionable testimony regarding its preparation.

The surveyor originally performed a survey of the locus based on his research, then went to the locus and laid out the points on the ground, and at that time, placed the boundary between 39 and 45 Church Street, approximately in the middle of the locus. After he submitted this survey to his client, which he did not consider to be a preliminary plan, the plaintiff's attorney directed him to move the boundary approximately 10.5 feet to the south so that it was within four feet of the defendant's building, which the surveyor did, submitting a revised survey. When the surveyor drafted his first survey of the locus he had to determine where on the ground Winchester Street actually ended and where Seaman's property began. The surveyor, however, could not testify with any certainty as to the basis for originally placing that point where he did. Similarly, the surveyor could not explain why his second starting point was any more accurate than his first. He asserts that he originally went to Boston City Hall to determine the proper street width for Winchester Street. He then asserts that because the taking to widen Winchester Street was never recorded in the registry of deeds the original street width he obtained from city hall was incorrect. The fact that a street widening is not recorded at the registry of deeds, however, does not mean that city hall's records would not correctly reflect the proper street width. Therefore, the surveyor might well have gotten the proper street width for Winchester Street the first time he went there. When the surveyor revised his plan, he did so based on the verbal assertions of Seaman's counsel without verifying whether the starting point he got from city hall in fact accounted for the widening of Winchester Street. This court cannot, therefore, determine which point is the proper place to begin measuring Seaman's property. Because the proper starting point cannot be determined, it likewise cannot be determined where on the ground the passageway should have been before or after the conveyances back from the city. These facts make the revised survey unreliable, and of no use to this court.

There are no physical monuments which can determine the boundary between 39 and 45 Church Street. It is evident from a picture exhibit of the locus that there is a passageway beginning at the rear of Rifkin's building on its northern boundary and running east away from the locus. Since the deedings back from the city, however, both Seaman's property and Rifkin's property have had new buildings constructed on them. There has been no showing as to exactly where, with respect to their boundaries; the buildings were constructed. Also, since at least 1945 the locus has been a vacant or paved lot with no demarcation as to where the passageway begins or ends. Due to the above facts it can not be determined whether the passageway in existence today is in the same location as it was at the time of the deedings back. Therefore, the four foot passageway is not a physical monument which, upon the proof submitted, can be used to determine the boundary between the respective properties.

For the foregoing reasons I rule that neither party has, by a preponderance of the evidence, established record title in the disputed area. This does not preclude the possibility that, in a later action, either party could establish where on the ground the boundary is between Seaman's and Rifkin's property. Because the plaintiff has failed to establish record title to the disputed area and has not been in possession of it, the claim for trespass must likewise fail.

Because it has not been established who has record title to the locus, this court cannot grant Rifkin's claim of a prescriptive easement for parking cars on one half of the locus. It is well established that one cannot hold an easement to one's own property. York Realty, Inc. v. Williams, 315 Mass. 287 , 289 (1943). It may well be established upon proper proof in a separate proceeding that Rifkin is the record owner of the disputed portion of the locus. This court cannot, therefore, grant a prescriptive easement where it has not been established, as between two abutting land holders, who has record title to a disputed area. Moreover, because a title examination of the locus was never conducted, it was not established whether or not third parties might have a record interest in the locus. If third parties did have a record interest in the locus this court could not grant a prescriptive easement over the locus without first giving such parties notice and an opportunity to answer. I therefore rule that Rifkin has failed to meet its burden of proof for establishing a prescriptive easement.

Rifkin has also claimed the disputed portion of the locus by adverse possession. Because it has not been established where on the ground the line is between 39 and 45 Church Street and also because it has not been established whether some third party may have a record ownership interest in the locus who would be an indispensable party entitled to notice, I defer making any findings or rulings regarding the aforementioned claim. To do otherwise would require this court to make hypothetical findings and rulings. [Note 4]

The final issue to be resolved in this case is whether any rights in the four foot passageway have been extinguished. The only evidence introduced at trial relevant to this issue is that cars have been parked on or near the passageway for over 20 years and a security fence was recently erected on Church Street. This is insufficient as a matter of law to establish an extinguishment of rights in a passageway created by deed. I therefore rule that neither party has met their burden of proof regarding the extinguishment of rights in the passageway. This will not preclude a different result in any later action relevant to this issue.

Both parties submitted requests for findings of fact and rulings of law. The court has found detailed facts in this decision and declines to adopt the findings requested. The plaintiff's request for rulings of law numbers 1, 2, and 4 are denied as they are general principles of law which, although correct as stated, are inapplicable to the facts found and rulings made; request number 7 is denied since it is not in proper form; request numbers 3 and 11 are denied as they are inapplicable to the rulings made; request numbers 5 and 6, insofar as they purport to be rulings of law, are denied as they are inapplicable to the rulings made; request number 8, although purporting to be a request for a ruling of law, is a request for a finding of fact and the court declines to adopt it as it is inapplicable to the facts found; request numbers 9 and 10 are denied as it is unclear what they request. The defendant's request for rulings of law numbers 1, 2, 3, 4, and 16 are granted; request numbers 9 and 15 are denied as they are in improper form for rulings of law; request number 5 is a request for a fact finding and the court declines to adopt it; request number 6, 7, 8, 14, 15 and 17 are denied as they are in improper form for rulings of law and in any event are either inapplicable or inconsistent with the rulings made herein; request numbers 10, 11, 12, 13 and 18 are denied as they are inconsistent with the rulings made.

Judgment accordingly.