MISC 123546

February 27, 1989

Essex, ss.



This is an action of trespass brought by the plaintiff husband and wife, Anthony and Marie DiCologero, against their neighbors, the defendant husband and wife, Domenic and Elaine Arangio. General Laws chapter 185, §l (o) confers jurisdiction upon this department of "civil actions of trespass to real estate involving title to real estate" into which category this litigation falls. The plaintiffs allege that the apron of the defendants' swimming pool and the chain link fence surrounding it encroach upon the plaintiffs' land; they do not seek either to have the apron or the fence removed, but rather claim per diem damages of two hundred fifty dollars ($250) per day since March 4, 1987.

A trial was held at the Land Court on August 29, 1988 at which the testimony was electronically preserved and thereafter transcribed. Anthony DiCologero was the only witness to testify in the plaintiffs' case in chief, and Domenic Arangio was the only witness to testify in the defendants' case in chief. The plaintiffs also called three rebuttal witnesses, James and Christine Blanchard, former tenants of the plaintiffs' house, and George Probamas, a former owner. 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 plaintiffs acquired title to the premises at 5 Biffin Court in Saugus in the County of Essex, where they live, by deed of Kenneth A. Gray, et al, dated October 17, 1974 and recorded with Essex South District Deeds, Book 6106, Page 363. The granted premises were stated in the deed to contain 25,600 square feet.

2. The defendants acquired title to their home which is now known as and numbered 54 Jasper Street in said Saugus by deed of Surette Real Estate, Inc., dated July 18, 1966 and recorded with said Deeds Book 5378, Page 511.

3. At the time of the defendants' purchase of their new home there was some landscaping of the parcel, but a large mound of dirt remained behind the house. The defendants gradually spread the mound over the back yard of their home with some of it extending over the property line onto land owned by the plaintiffs of record.

4. In 1975-1976 the defendants installed an inground swimming pool on their land, the apron of which extended across the property line. The parties agree that the record line is as shown on a plan entitled "Plan of Land in Saugus, MA" dated July 20, 1988 by F. D. Dewsnap Engineering Assoc., Inc. (Exhibit No.1) (the "Plan"). The Plan also shows the area in dispute in this action which contains about 1,547 square feet and adjoins the defendants' northerly boundary line. A copy of the pertinent part of the plan is attached hereto as Appendix A.

5. The Plan also shows a wood shed on the area in dispute, but there was no testimony as to who erected it on the locus, nor when. The defendant contends that he planted a garden on the disputed area to support his claim of title thereto by adverse possession. The rebuttal witnesses testified to the contrary, and it is impossible to tell from the photograph of a garden, introduced into evidence as Exhibit No. 7, where it was located. The Plan does show only two planted areas, and they both clearly are on the defendants' own property. The house of the easterly abutter appears in the back ground of the photograph and suggests this is the same garden which shows on the Plan.

6. In addition to the chain link fence which surrounds the swimming pool, there presently is a wooden picket fence along a portion of the defendants' property where it abuts Biffin Court and continuing northerly until it meets a wood and wire fence which runs along the line of occupation claimed by the defendants.

7. Other than the swimming pool fence there was no evidence as to when the other fences were erected or by whom. However, the photographs establish that the picket fence along Biffin Court in the vicinity of the mound of dirt was there in 1966 (Exhibits Nos. 5A, 5B and 5C). Conversely, neither the Blanchards nor Mr. Probamas remember any fence between the properties during the years they were familiar with the properties (collectively from 1968 to 1972).

8. After the installation of the swimming pool the plaintiffs arranged for a survey by Otte & Dwyer, Inc. about 1976 which showed the encroachments by the defendants. The plaintiffs then offered to sell to the defendants sufficient land to enable the latter to comply with the setback requirements of the Saugus Zoning By-law. A plan was presented to the planning board to allow the plaintiffs to subdivide their property by conveying about 1,600 square feet to the defendants and dividing the remaining land into a lot for the existing house and a second lot for development (See Exhibit No. 3). The planning board is said to have refused to approve the plan on the ground of insufficient parking.

9. After the denial by the planning board of approval the plaintiffs decided to sell their entire premises, and the defendants agreed to buy them. The plaintiffs, however, reconsidered, and no written agreement ever was executed.

The sole issue in this case is whether the defendants have acquired title by adverse possession to the land to which the plaintiffs hold record title. As the Land Court previously has stated in Richardson's Farms, Inc. v. Danvers Fish and Game Club, Inc., Registration Case No. 35315, aff'd 22 Mass. App. Ct. 1101 , 1115 (1986), the following must be shown:

To prove title by adverse possession, the plaintiff must show at least twenty years, actual, continuous, exclusive and open non-permissive use of locus adverse to all the world under a claim of right. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The nature and extent of the possession necessary varies with the character of the land, the purposes for which it is adopted and the uses to which it has been put. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961) quoting LaChance v. First National Bank & Trust Company, 301 Mass. 488 , 490 (1938).

The defendants' activities in the disputed area commenced sometime after they purchased their home in 1966. It is unclear just where the mound of dirt was located or where it was spread, but in any event, the parties knew by the mid-seventies that the defendants did not own of record the disputed area, and negotiations commenced for its purchase either alone or with all of the plaintiffs' land. The filing of this action in 1987 clearly stopped the running of the adverse possession. This was short of the required twenty years since it is unclear when the period began. Moreover, the recognition by the defendants in the late 1970's of the plaintiffs' ownership had stopped the running of the period. It is equally unclear when and by whom the fence at the edge of the area the defendants claim was erected. If that unquestionably had been erected by the defendants or by their predecessors, the result might be different although the purchase negotiations appear to be an insuperable bar to the defendants' case, but on the evidence before me I find and rule that the defendants have not borne their burden of proving that they had acquired title to the disputed area by the exercise of adverse possession. This being so the defendants have no right to maintain the wood shed, the apron of the swimming pool or the chain link fence on the disputed area, but the plaintiffs do not seek to have them ordered removed. Accordingly, I declare that as between the parties title to the land in question is owned of record by the plaintiffs free of any claims of the defendants.

The plaintiffs also seek to recover damages of two hundred fifty dollars ($250) per day from the date of an alleged demand, but there being no evidence as to actual damages suffered or of the date of the demand, I award the plaintiffs nominal damages of one dollar ($1.00) per day from the filing of the complaint until further order of this Court, together with interest thereon as provided by law. The Court suggests that the parties again explore the question of a resolution of their dispute by execution of a purchase and sale agreement and its consummation.

Since I have made my own extensive findings of fact and rulings of law, I do not rule specifically on those findings of fact requested by the plaintiffs.

Judgment accordingly.

exhibit 1

Appendix A