MISC 116831

May 16, 1989

Worcester, ss.



The plaintiff, Briscon Electric Manufacturing Corporation, seeks in this action to restrain a continuing trespass by the defendant, Anthony P. Abruzzise, Jr., of Auburn, in the County of Worcester, on land owned of record by the plaintiff. The defendant answered claiming that he had acquired title to the land in question by adverse possession and counterclaiming for the relief sought in Worcester Superior Court Action No. 85-31348 brought by the defendant against the plaintiff. The plaintiff sought to amend his answer to the counterclaim after the trial had commenced by alleging res judicata and his motion was denied.

A trial was held on December 27, 1988 and January 23, 1989 at which the testimony was electronically recorded and subsequently transcribed. William D. Rogers, president of the plaintiff; Anthony P. Abruzzise, Jr., the defendant; Bernadine Drapeau, Chief Assessor of the Town of Auburn; Tina Abruzzise-Bullock and John Abruzzise, children of the defendant; and Howland Shaw, a registered land surveyor, testified. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

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

1. The plaintiff and defendant own of record adjoining parcels of land situated on Central Street in said Auburn and shown on a plan entitled "Plan of Property in Auburn, Mass. on Central Street" dated January 19, 1989 and prepared by Cullinan Engineering Co., Inc. (Exhibit No. 25). The premises also are shown on a plan entitled "Sketch of Land in Auburn, Mass. Owned By Bristol Electric Manufacturing Co., Inc." dated February 21, 1985 and prepared by BSC Robinson & Fox (Exhibit No. 3). The land of the defendant comprises approximately 13,292 square feet, while the area of the land of the plaintiff is variously shown as 29,649 square feet and 31,320 square feet on the exhibits.

2. The plaintiff, under its former name of Bristol Electric Manufacturing Co., Inc., acquired title to locus and other land by deed of Arthur J. Rogers, dated May 5, 1954 and duly recorded with Worcester District Deeds in Book 3611, Page 100 (Exhibit No. 8). Subsequently, a major portion of the premises on Washington Street, on which the factory building was located, was taken by the Commonwealth of Massachusetts by taking dated March 18, 1965 and recorded in Book 4547, Page 270 (Exhibit No. 9).

3. The defendant acquired title to his premises from Frank P. Kohlstrom, et ux, by deed dated August 30, 1962 and recorded in Book 4309, Page 181. The deed also ran to the defendant's wife, who has since died (see Exhibits Nos. 4 and 6).

4. The land in question is the parcel remaining from the plaintiff's 1954 acquisition after the Commonwealth's taking.

5. The plans hereinafter referred to show that the defendant's home was awkwardly placed by a prior owner on his lot so that the garage is very close at its nearest point to the easterly lot line and the house conversely is at least 45 feet away from the westerly lot line. The entrance to the defendant's home, however, is on the side near the garage, and accordingly he and his family customarily used the easterly portion of their premises to a greater degree than the area on the far side of the house.

6. William Rogers, president of the plaintiff, testified that he frequently traversed the plaintiff's property in walking from his home across the adjoining Kohlstrom property to a town recreation area to the east. He was accompanied on these walks by his children, and they took place with frequency during the period from 1954 to about 1960.

7. In the period of time before the Commonwealth's taking, Rogers visited the locus to check on it, but after the plant was moved in 1966 he continued to walk through the area until 1979 or 1980 for personal reasons until his business activities precluded a constant check. He described the property as being overgrown with brush, flowers and tall grass and wooded with birch trees. No shed was on the property at that time, and there was no lawn in the area.

8. The taxes on the locus have always been assessed to the plaintiff as vacant land, and no building appears on the assessment even though there have been two reassessments during the period here in question.

9. Currently the shed is assessed to Mr. Abruzzise but on the land owned by him of record, not the locus.

10. The Abruzzise family has made use of the invitation afforded by the adjoining vacant land and sporadically over the years has taken advantange of that portion of the plaintiff's land which adjoins Central Street. At an early date, a tire was hung from a tree and used as a swing by the Abruzzise children, of which there were several. A barbecue pit was dug out, and thus cookouts and picnics were held on the property, a small wading pool was used by the children, and the usual games indulged in by the younger fry took place on this portion of the property. Much more recently, about 1979, the son-in-law of Mr. Abruzzise graded and filled the front portion of the locus, a fence was erected and cars were parked thereon. Over the years a badminton net might be strung, and games enjoyed by the defendant's family and friends. At some time the defendant tried to raise vegetables on the back slope of the property but this effort was doomed to failure by the terrain.

11. In 1985 the plaintiff applied for a variance of the Auburn Zoning By laws to permit the construction of a single family home on locus, the lot otherwise having insufficient frontage. It was at the hearing on the variance that the defendant claimed ownership of the locus for the first time publicly. The variance was granted, and an appeal presently is pending in another department of the Trial Court. This litigation followed.

The plaintiff seeks to have the Court find a continuing trespass arising from the present location on the locus of a shed which the defendant claims was originally a playhouse for his children and which he contends has been maintained thereon for at least twenty years. The defendant also sought to establish that the plaintiff's president had walked not on the locus, but on the property adjoining to the east since the defendant disputed the plaintiff's description of the property.

On all the evidence, I find and rule that the defendant has not borne his burden of showing the shed to have been situated on locus for at least twenty years, that not only Mr. Rogers failed to see the shed, but that it was not listed as a structure on locus by the Auburn Assessors, that no building permit had been taken out for its construction and that any third party viewing it would have found it difficult to believe that this unattractive addition was evidence of a claim of ownership by a third party. Originally the playhouse was made from two by fours, the original roof was wood and eventually an old swimming pool with siding over it was added to make the present roof.

There is no dispute that the plaintiff has record title to the property. The question arises as to whether title to all or part of the premises has been lost by the activities carried on by the defendant over a period of years on the locus. I have no doubt that recreational activities, principally by the defendant's children, were indulged in on the land of the plaintiff, as well as on that of the defendant, without regard to ownership or the location of the boundary line between the two properties. This was a natural result of inactivity by the owner on the locus with no use being made of the property after the taking by the Commonwealth of the remainder of the plaintiff's property and presumably even before. The activities on the land while the business was still located on the site were at some distance away on another street, and the taking left the present tract which now adjoins a ramp to Route No. 290. Use of the property for a playhouse (and tree houses as well) is something carried on by youngsters throughout the Commonwealth and fails to give rise to the acquisition of title by their parents since it is not under a claim of right nor is it of such a notorious nature as to constitute a visible claim of title. The maintenance of a principal building or of a standard appurtenant structure, of course, falls into a different category and well might constitute full notice of an adverse claim. The packing case type of construction here, however, was not of that nature and if it were in fact in place in years gone by, the nature of the shed would not be such as to impel the conclusion of a claim adverse to the true owner. The activities which would fall into the latter category include the grading of the premises, the erection of the fence, and the parking of the cars, but none of these lasted for the required period of twenty years.

To establish title by adverse possession, the defendant must show that he or those claiming under him used the premises openly, notoriously, continuously, exclusively and under a claim of right for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964), Kershaw v. Zecchini, 342 Mass. 318 (1961), and Gadreault v. Hillman, 317 Mass. 656 (1945). If any one of these elements is lacking, then adverse possession cannot be shown. Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 (1968). The defendant's use during the approximately eight year period prior to the plaintiff's application for a variance would have been sufficient, if it had continued during the entire twenty year period, to constitute adverse possession. See Kershaw, supra at pages 320, 321. During the early years of his ownership, however, there was insufficient notoriety in the uses made of the plaintiff's land for such acts to rise to the level necessary. Boston Seamen's Friend Soc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251-252 (1985). There is no question here of color of title to assist the defendant who has the burden of proof. Norton v. West, 8 Mass. App. Ct. 348 , 350-351 (1979).

The plaintiff is therefore entitled to a permanent injunction ordering the defendant, his agents, servants, successors in title and assigns to remove the fence across the front of the locus and the "shed" situated thereon and thereafter restraining them from entering upon any portion of the land on Central Street in said Auburn to which the plaintiff holds the record title or otherwise trespassing thereon.

The defendant filed a request for findings of facts and conclusions of law on which I have not ruled specifically in view of my long-detailed findings and discussion of the legal issues.

Judgment accordingly.