MISC 126039

December 5, 1989

Plymouth, ss.



On December 22, 1987, Mary F. Meade ("Plaintiff") filed a complaint [Note 1] seeking a declaration, pursuant to G.L. c. 231A, § 1, as to the location of the boundary line between a parcel of land owned by her, known as and numbered 227 Atlantic Avenue in Hull, Massachusetts ("Plaintiff's Land") and an adjacent parcel, known as and numbered 233 Atlantic Avenue ("Defendants' Land"), owned by Leo J. and Elizabeth S. Parkes ("Defendants"). The Plaintiff also seeks the issuance of an order directing the Defendants to remove from her land a certain wooden fence erected by the Defendants or their agents, which fence is alleged to encroach upon her land. The Plaintiff further requests that the Court issue an order permanently enjoining the Defendants, their heirs and assigns, from further encroaching or trespassing upon her property, as well as an order directing them to pay damages for any and all losses suffered by her as a result of the aforesaid encroachment.

On May 10, 1989, the Defendants filed an answer and two counterclaims in response to the Plaintiff's Amended Complaint. Counterclaim I sets forth a count for damages for the intentional infliction of emotional distress. By Counterclaim II, the Defendants seek a declaration that they have acquired title by adverse possession to the disputed area, as described in further detail below, as well as a declaration as to the location of the boundary line between the subject properties. The Defendants also seek the issuance of an order permanently enjoining the Plaintiff from encroaching or trespassing upon their land.

On April 12, 1988, a pre-trial conference was held, at which counsel, surveyors representing both parties and Mr. Louis A. Moore, Land Court Chief Engineer, were present. A trial was held thereafter on March 27 and July 19 of 1989, at which times the proceedings were recorded and thereafter transcribed by a court­appointed reporter. Nine witnesses offered testimony, nineteen exhibits were accepted into evidence and two chalks were admitted to assist the Court. Exhibits No. 17 and 18 were marked for purposes of identification only. At the conclusion of the second and final day of trial, the Court viewed the subject parcels in the presence of counsel.

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

1. The Plaintiff and Defendants own adjoining parcels of land located on the southerly side of Atlantic Avenue in Hull. As shown on a plan entitled "Plan of Land in Hull (Plymouth County) MA", dated April 3, 1987 ("Defendants' Survey Plan") (Exhibit No. 21), the Plaintiff's Land lies easterly of the Defendants' Land.

2. The disputed area is a strip of land measuring approximately 1.5 feet in width situated between a certain building, formerly a store, located in the northwesterly corner of the Defendants' Land and a certain wooden fence erected by the Defendants to the east thereof. Said disputed area extends southerly from Atlantic Avenue to a ledge outcropping, as described below (See Chalks "A" and "B").

3. The Plaintiff's family purchased the property located at 227 Atlantic Avenue on February 24, 1921. This conveyance is evidenced by a deed recorded at Book 1385, Page 17 in the Plymouth County Registry of Deeds (Exhibit No. 1). At this time, a pipe rail fence set in concrete ran along the northerly boundary line of the property where it adjoined Atlantic Avenue, then along the westerly boundary of the property adjacent to or possibly beyond a portion of the Defendants' record boundary line to a ledge outcropping. That portion of the pipe rail fence running along Atlantic Avenue was subsequently removed by the Plaintiff's family and replaced by a section of chain link fence.

The Plaintiff has resided on this property continuously since 1921, title to the same passing to her on August 21, 1965, by deed recorded at Book 3235, Page 625 in the Plymouth County Registry of Deeds (Exhibit No. 2).

4. From 1921 to about 1987, the Plaintiff and her family used the disputed area as a continuation of their yard. During this time, they mowed and maintained the lawn in said area and planted flowers, trees and shrubs there as well. In addition, the Plaintiff, her siblings and their friends played and swung on the pipe rail fence during their childhood years. Such activities were carried out in a manner open and obvious to the Defendants and/or their predecessors in title, and without any objections thereto.

5. In 1963, the Defendants' Land was subdivided into two lots, the results of such subdivision being depicted on a plan entitled "Plan of Land of Richard J. & Eleanor Ferriter", dated May 16, 1963 (Exhibit No. 6). As shown on said plan, the Defendants' Land is comprised of Lot B, containing approximately 13,350 feet of land, and Lot A, located northeasterly thereof, containing approximately 1,775 feet of land. At this time, the store was located on Lot A and a house was located on Lot B.

6. From 1955 to 1972, the Defendants' Land was owned by Richard J. and Eleanor T. Ferriter ("Ferriters") (See Exhibit No. 3). From 1955 to approximately 1968, a variety store was operated out of the building situated on Lot A. At times during this period, the easterly side of the store, which area comprises a portion of the disputed area, was used by vendors for deliveries. From time to time, store-related materials were also discarded in this area. Additionally, from the fall to the spring of 1964, 1965 and 1966, the Ferriters stored a small sailboat in this area.

7. By deed dated September 9, 1972, recorded at Book 3845, Page 443 in the Plymouth County Registry of Deeds (Exhibit No. 3), the Defendants acquired title to Lot B. Thereafter, on August 9, 1984, the Defendants purchased Lot A, said conveyance being evidenced by a deed recorded at Book 5741, Page 218 in the Plymouth County Registry of Deeds (Exhibit No. 4).

8. In 1973, the Defendants erected a chain link fence along what they believed to be the easterly boundary line of their property. Inasmuch as said fence extends northerly from the rear of their property to the aforementioned ledge outcropping (See Chalk "B"), it lies outside of the disputed area.

9. In the summer of 1986, a dispute as to the location of the boundary line arose between the parties. At this time, the Defendants had commenced operation of a consignment shop in the building located on Lot A and the Plaintiff objected to the storage of materials on the easterly side of the pipe rail fence.

10. In the fall of 1986, the Plaintiff had a survey of her land performed. The results of this survey indicated that the boundary between the parties' respective properties ran in line with the pipe rail fence and, accordingly, stakes were placed approximately 1.5 feet westerly of the Defendants' chain link fence.

11. In the spring of 1987, the Defendants had a survey of their land performed. The results of this survey, as they appear on the Defendants' Survey Plan (Exhibit No. 21), indicate the boundary line to be located approximately 1.5 feet easterly of the Plaintiff's pipe rail fence. Thereafter, in August of 1987, the Defendants removed the pipe rail fence and surveyor's stakes and erected a wooden fence in accordance with the results of their survey (See Chalk "B"). The Defendants also installed asphalt paving in the area lying between said wooden fence and the building housing the consignment shop. These activities met with the Plaintiff's disapproval.

The general rule with respect to boundary disputes is that where the description of a boundary is disputed or ambiguous, the conduct of the parties in holding possession to a certain line may be sufficient to show the intention of the parties and the effect of the conveyance. T. McDermott, Land Titles and Land Law, § 3.32A, (1954). Insofar as the instant matter presents a conflict between the results of the Plaintiff's survey and the results of the Defendants' survey, as they relate to the location of the boundary between the parties' respective properties, and inasmuch as the evidence supporting each survey is eqully credible, it is necessary to examine the parties' activities with respect to the specific area in dispute. See Fulgenitti v. Cariddi, 292 Mass. 321 , 325 (1935) and cases cited. In consideration of the foregoing facts, I find and rule for the reasons set forth below that, from 1921 to at least 1955, the acts of the Plaintiff and her predecessors in title were of such a nature as to vest title to the disputed area in the Plaintiff, if not by record, then under the doctrine of adverse possession.

For one to prevail under a theory of adverse possession, he must prove that for a period of twenty years, without interruption, he or his predecessors in title used the area in dispute actually, openly, notoriously, exclusively and adversely. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Rvan v. Stavros, 348 Mass. 251 , 262 (1964); Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 1104 (1985). Whether or not these elements of adverse possession are sufficiently proven is essentially a question of fact, insofar as the nature and extent of occupancy required to establish such adverse rights will vary with the character of the area in dispute, the purpose for which it is adapted and the uses to which it is put. Kershaw at 320 citing La Chance v. First National Bank and Trust Co., 301 Mass. 488 , 490 (1938). Thus, from the standpoint of the true owner, the purpose of these requirements is to put him on notice of the hostile activity of the possession, so that he, the true owner, may be afforded the opportunity to vindicate his rights by legal action. Dow v. Dow, 243 Mass. 587 , 593 (1923); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). In applying these basic principles to the instant matter, I find that prior to 1921, a pipe rail fence ran along what the Plaintiff asserts to be the western boundary of her land. With the exception of that portion of the fence which was removed by the Plaintiff's family some time after 1921 (See Finding No. 3), the fence remained in the same location and in a relatively similar, though somewhat the worse for aging, condition until its removal by the Defendants in 1987. Although the Plaintiff contends that from 1921 to at least 1972 she, her family and the Defendants' predecessors in title treated and acknowledged said fence as the boundary between their respective properties, the law states that such mere acquiescence of a fence or a line as a barrier is not enough, in and of itself, to establish a boundary line. Iverson v. Swan, 169 Mass. 582 , 583 (1897); Ryan v. Stavros, 348 Mass. 251 , 261 (1964). I find in addition, however, that the Plaintiff's family planted grass, trees, shrubs and flowers in the disputed area and, from at least 1921 to 1987, maintained such area as a continuation of their yard. The view taken of these premises confirms such findings, although many of the plantings have grown beyond the point where they require maintenance. Further, testimony offered at trial reveals that throughout their childhood years the Plaintiff, her siblings and friends played in the disputed area, such activity being confined mainly to their swinging and playing on the pipe rail fence.

The Defendants' assertion that they and their predecessors in title have also used the disputed area is in fact supported by the record before the Court. From 1958 to about 1968, deliveries were made on occasion to the easterly side of the store then operated on the Defendants' Land. During this time, store-related materials were also discarded in this area periodically. In addition, a small sailboat was stored in the general area during the winters of 1964, 1965 and 1966. Further, in 1987, the Defendants erected a wooden fence in and installed asphalt paving over at least portions of the disputed area. However, insofar as this act of erecting a fence was met with disapproval by the Plaintiff, the accrual, if any, of adverse possession by the Defendants was effectively interrupted at this time. Moreover, I find that the nature and duration of the acts performed by the Defendants and their predecessors in title with respect to the disputed area lacked the intensity and continuity necessary to establish title by adverse possession. In any event, however, I find that the Plaintiff had acquired adverse title to the disputed area long before 1958.

In consideration of the foregoing, I rule that, without interruption, from at least 1921 to 1955, the Plaintiff and her family used the 1.5 feet of land at issue herein in a manner which was actual, exclusive, open and notorious and that, accordingly, the Plaintiff has acquired title to such disputed area by adverse possession. I thus rule that the boundary line between the Plaintiff's land, located at 227 Atlantic Avenue, and the Defendants' Land, located at 233 Atlantic Avenue, runs in line with the Plaintiff's pipe rail fence and is located 1.5 feet westerly of the Defendants' wooden fence. Having so ruled, the Defendants are hereby ordered to, within six (6) months from the date of the entry of a final judgment herein and after all appeals have been resolved, remove the wooden fence and that portion of asphalt paving which encroaches upon said disputed area, from this strip of land. The Defendants are not, however, required to relocate or reconstruct said fence. Further, the Defendants' claim for damages resulting from the intentional infliction of emotional distress is hereby dismissed.

Judgment accordingly.


[Note 1] On May 3, 1989, the Plaintiff filed an Amended Complaint, wherein Elizabeth S. Parkes was added as a party Defendant.