EDWARD H. GLEASON and ERMA P. GLEASON vs. PAUL R. FAIRBANKS and ROBIN FAIRBANKS.

On July 29, 1987, Edward H. [Note 1] and Erma P. Gleason ("Plaintiffs") commenced this action, pursuant to G.L. c. 240, s. 6, seeking to quiet title to a certain parcel of real estate located at 47 Farwell Street in Natick, Massachusetts by establishing the precise location of the boundary line between such property and that of Paul R. and Robin Fairbanks ("Defendants"). By this action, the Plaintiffs further seek a declaration that they own, by adverse possession, a certain triangular portion of the land running along said boundary line ("Disputed Area" or "Area"). A preliminary injunction was issued by Order of this Court on August 7, 1987 whereby the Defendants, their agents, servants, employees or designees were restrained and enjoined as follows:

. . . from moving, removing, destroying or interfering in any way or from causing such action to be taken with respect to any portion of the stone wall . . . located between land claimed by the plaintiffs . . . and land claimed by the defendants, and which wall runs from a point at or near Boston Edison Pole No. 12 between 47 and 41 Farwell Street, Natick . . ., northwesterly approximately 404 feet to land now or formerly of . . . Castelli. . . .

. . . from digging, excavating, cutting, planting, cultivating or otherwise disturbing the "disputed area" said [area] being described generally as a triangular portion of land commencing at the beginning of said stone wall at Farwell Street, northwesterly along said wall approximately 75 feet to a surveyor's stake at the center of said wall, thence southeasterly approximtely 75 feet along an imaginary line to a stake or point approximately 10 feet southwesterly of the point of beginning, thence approximately 10 feet northwesterly along Farwell Street. . . .

A trial was held in the Land Court on November 14 and December 2, 1988, at which times a stenographer was sworn to record and transcribe the testimony. Five witnesses testified and twenty-nine exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. On November 25, 1988, the Court, in the presence of counsel, took a view of the subject property.

On all of the evidence, I make the following findings of fact:

1. By deed dated September 26, 1952 and recorded at Book 7970, Page 71 in the Middlesex South District Registry of Deeds [Note 2] (Exhibit No. 1), the Plaintiffs, as tenants by the entirety, acquired title to 47 Farwell Street. Said property is shown as "Parcel-B2", consisting of 24,500± square feet on a plan entitled "Plan of Land in Natick, Mass.", dated February 15, 1952 ("Gleason Plan") (Exhibit No. 2), recorded at Book 7907, Page 201. Said plan depicts the boundary between the Plaintiffs' and Defendants' properties as a straight line of approximately 205.73 feet/ in length.

2. By deed from Elizabeth W. Wolfe ("Wolfe") dated March 30, 1987 (Exhibit No. 8), the Defendants, as tenants in common, acquired title to 45 Farwell Street, which property abuts the northeasterly side of the Plaintiffs' land. Said property appears as a parcel marked "Area=43,560± S.F." on a plan entitled "Plan of Land in Natick, Mass." dated March 12, 1987 ("Fairbanks' Plan") (Exhibit No. 9) and includes the Disputed Area. The Fairbanks' Plan shows the boundary between the Plaintiffs' and Defendants' parcels as a straight line running in an apparently identical course to that depicted on the Gleason Plan, said minor change in course being most likely attributable to magnetic variation. This conveyance followed the issuance of a variance to Wolfe by the Town of Natick Zoning Board of Appeals on January 8, 1987, which permitted the division of Wolfe's land (See Exhibit No. 3) into two individual lots having approximately seventy (70) feet of frontage on Farwell Street, as opposed to the 110 feet of minimum frontage required under the Natick Zoning By-law for structures located in a "Residential-Single" zoning district (See Exhibit No. 7).

3. As shown on a blow-up of the 1987 Plan (Exhibit No. 10), the Disputed Area is a triangular-shaped portion of land commencing at the beginning of what may have been a stone wall at Farwell Street, northwesterly along said stone wall approximately 75 feet at surveyor's stake at the center of said stone wall, thence southeasterly approximately 75 feet along an imaginary line to a stake or point approximately 10 feet southwesterly of the point of beginning, thence approximately 10 feet northwesterly along Farwell Street. The Disputed Area angles into the Fairbanks' property as described above.

4. From 1952 to 1961 and continuing through to the present, the Plaintiffs have maintained the lawn and have planted flowers and shrubbery in a portion of the Disputed Area. The stone wall, as situated in the Disputed Area, however, is not well-maintained, particularly as it nears Farwell Street. At that juncture, the stone wall appears more as riprap retaining the surrounding embankment than as a boundary wall.

5. In 1961, the Plaintiffs secured a building permit to construct a breezeway and garage off of their house. (See Exhibit No. 14.) This addition reduced the distance between the Plaintiffs' house and the subject stone wall to approximately twelve feet. Around this time, the Plaintiffs also installed a blacktop driveway in front of the garage and a sidewalk along the easterly side thereof. The Plaintiffs' use of a portion of the Disputed Area remained relatively unchanged from 1961 to 1966.

6. In 1966, the Plaintiffs planted four arborvitae trees in the Disputed Area and erected a horse's head hitching post in the Area as well. (See Exhibits No. 11, 12, 21, 22 and 26.)

For the Plaintiffs to prevail herein, they must prove that for a period of twenty years, without interruption, they or their predecessors in title used the entire Disputed Area in a manner which was actual, open, notorious, exclusive and adverse to the record owners of such area. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure on the part of the Plaintiffs to prove any one of these requisite elements of adverse possession will preclude their succeeding in this action. Gadreault v. Hillman, 317 Mass. 657 , 661 (1945).

In consideration of the foregoing facts, I find that the Plaintiffs' actions with respect to the entire Disputed Area, when considered collectively over a period of twenty years, do not rise to a level necessary to acquire title thereto by adverse possession. While the record before the Court and the view of the subject property do indicate that from 1952 to the present the Plaintiffs have maintained the lawn and planted shrubbery and flowers in portions of the Disputed Area in a manner open, notorious, exclusive and adverse to the Defendants and their predecessors in title, I find these acts to have been concentrated in only the area bounded as follows: commencing at a surveyor's stake (See Exhibit No . 26), running easterly along th line of Farwell Street a distance of 4·.6 feet, thence running northwesterly to a surveyor's stake set in stones, thence southeasterly to the point of beginning.

Accordingly, I find and rule that the Plaintiffs have acquired title by adverse possession to only that portion of the Disputed Area which is described above and that such northwesterly boundary establishes the boundary line between the parties' respective properties. The Plaintiffs shall, within 180 days from the date of a final entry of judgment herein, prepare and submit a plan suitable for recording which depicts the boundary line as determined herein.

Judgment accordingly.