MISC 114854

June 12, 1989

Essex, ss.



Plaintiff, Heidi C. Blais, daughter of Plaintiffs, William C. and Virginia H. Charles, is the current owner, as Trustee, of a parcel of land located at 452 Main Street at the corner of Clarks Road, Amesbury, Massachusetts ("Locus"). Locus has been in the Charles family since 1919. The Defendants are the owners of property located at 1 Clarks Road in Amesbury, which property is abutted on three sides by Locus. Due to indefinite reference points and usage by the parties and their predecessors over the years, the actual boundary between Locus and the Defendants' property has become obscured. Due to various activities of the Defendants, the original Plaintiffs brought this action to establish property boundaries and for damages.

Trial was held on July 7, September 28 and December 11, 1987, at which times a stenographer was appointed to record and transcribe the testimony. Seven witnesses testified and fifteen exhibits were introduced into evidence. Inasmuch as the Plaintiffs' case rests in a large part on adverse possession, the areas of dispute are relatively small, and since the Plaintiffs' claims are advanced by testimony as to actual physical location of certain objects on the ground, the parties have agreed that a late filed exhibit identified as Plan No. 87261 by W. C. Cammett Engineering, Inc. (Exhibit No. 16), a copy of which is attached hereto, may be admitted to show the physical features on the ground. During the course of the trial, a view of the premises was taken. On November 1, 1988, the Plaintiffs filed a brief; the Defendants have not chosen to do so.

On all of the evidence, including the view of the Locus, I find and rule as fo11ows:

1. Plaintiff Heidi C. Blais, Trustee, acquired title to Locus from her parents, Willard C. and Virginia H. Charles in April 1986. The Charles' in turn acquired Locus from Mr. Charles' father who had purchased the property in 1919. Mrs. Blais lived at Locus from her birth in 1949 to about 1974. Mr. Willard Charles moved onto Locus in 1921; Virginia Charles moved to Locus in 1948 after her marriage. They remained on the property until 1986.

2. The boundaries in dispute are the three boundaries of the Defendants' lot abutting Locus. They may be described, as shown on Exhibit No. 16, as southwesterly, southerly and easterly. The disputed areas are those on said exhibit lying between the heavy line designated "property line per Willard Charles" and the lighter line designated "property line per Port Engineering".

3. There was no dispute as to the southwesterly or southerly boundary until the Defendants had their property surveyed in 1982.

4. The boundaries of record of the Defendants' property are those shown on a plan dated June 7, 1984 by Port Engineering Assocs. Inc., (Exhibit No. 12) and on Exhibit No. 16 as "property line per Port Engineering".

5. At some time prior to 1951, a wooden fence was erected on a portion of the property line which runs from an iron bolt in Clarks Road between the two garages to a point at or near the southerly boundary line.

6. In 1951, the Plaintiffs Charles installed a swimming pool drain which ran along their side of the fence well into the area between the fence and the record boundary line (southwest disputed area). From 1948 until they left the property in 1986, the Charles maintained a garden on a portion of this area. In addition thereto, they, along with their children, frequently cleared the area, keeping it free of debris and weeds. The fence line was unchallenged until questioned by the Defendants in 1982.

7. The garden planted by the Charles in 1948 is still in existence along parts of the southerly boundary. It is, as of the present, evidenced by rhubarb plants and a large lilac bush, which partially straddles the boundary. This boundary is also established in part by existing retaining walls, or the remaining thereof, which have been in existence since before 1947. Since at least 1948 up until 1986, Mr. Charles has maintained a lawn along the general 1ines of the southerly boundary. Between the rhubarb plants and the lilac bush they maintained miscellaneous trees. Somewhat southerly and easterly of the lilac bush, and a short distance from their boundary, the Charles' planted several Norway Pines. These trees have been removed, but several stumps remain.

8. The easterly boundary is less well-defined. While Mr. Charles has mowed and maintained a portion of the easterly disputed area since about 1948, the area westerly of the now-existing trees appears to have been left more or less alone, possibly due to its topography. In that area, there are several forsythia bushes which may have been cultivated at one time, but which appear to have been left on their own for a number of years. In short, this area does not seem as well-maintained as does the southerly disputed area.

As I have found record title to all of the disputed areas to be in the Defendants, the Plaintiffs, in order to succeed, must sustain their burden of proof that for a period of at least twenty years, without interruption, they or their predecessors in title used the disputed areas in a manner that was actual, open, notorious, exclusive and adverse. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 315 , 320 (1961). Consequently, if they 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 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 purposes for which it is adapted and the uses to which it has been put. Kershaw at 320. The purpose of these requirements is to put the true owner on notice of the hostile activity of the possession, so that he may be afforded an opportunity to take steps to vindicate his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

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

1. The Plaintiffs have established title to portions of the disputed areas, based on the doctrine of adverse possession, as follows:

a) I find the southwesterly boundary to be a line running along the fence line S 31°17'21"E from the southerly line of Clarks Road to a point indicated "S/N Set", both as shown on Exhibit No. 16, thence continuing in such course a distance of two feet to a point.

b) The southerly boundary is the area of least dispute, the disputed area ranging in depth from zero to three feet. In consideration of the plantings, retaining walls and record boundary lines, I find the southerly boundary to run northwesterly from the last point above-mentioned, through the intersection of the southerly and easterly boundary lines shown on Exhibit No. 16 as "property lines per Willard Charles", thence continuing through such point in said established course a distance of four feet to a point.

c) I find the easterly boundary to be a line beginning at the last established point, thence running N 09°13'21"E to the southerly line of Clarks Road.

2. Insofar as I am unable to accurately locate the stone wall removed by the Defendants, I make no finding as to damages or restitution.

3. I find further that as to the complaint for contempt, the minimal size of the disputed area and the indefiniteness of the actual boundary fail to support the Plaintiffs' motion for contempt at this time.

4. The Plaintiffs are further directed to prepare and file with the Court, within 180 days of this order or any final order of appeal therefrom, a plan, which may be a modification of Exhibit 16 showing the boundaries as found herein.

Judgment accordingly.

Exhibit 1

Exhibit 16