MISC 127933

November 29, 1989

Essex, ss.



The plaintiffs Roccie A. Caputo and Gail F. Caputo, husband and wife, of Lynn, in the County of Essex bring this action to establish their title by adverse possession to a small parcel of vacant land shown as Lot 9 situated between their home on Range Heights Circle and the home of the defendant Richard N. Bogannam on Range Heights Road, a parallel street, for purpose of the trial. Two recorded plans, one entitled "Plan of Land owned by John N. Robbins" dated June 16, 1961 by Roger S. Brown recorded with Essex South District Deeds [Note 1] in Book 4790, Page 18 as Plan No. 385 of 1961 on which the plaintiffs' land appears as Lot 8 (Exhibit No. 2) and a second also by Mr. Brown entitled "Plan of Land in Lynn, Mass.", dated November 10, 1960, recorded in Book 4748, Page 104 as Plan No. 132 of 1961 on which the land to which the defendant has record title appears as Lots 5 and 9 (Exhibit No. 4) have been merged and marked Chalk A, a copy of which is attached hereto as Exhibit A. The plaintiffs seek in addition to the adverse possession claim to restrain the defendant from use and occupation of Lot 9 and to recover damages for removal of trees and injury to a wall on said lot.

The case was tried at the Land Court on February 13 and August 2, 1989 at which time a stenographer was appointed to record and transcribe the testimony. The only witnesses were the plaintiffs, David Paul Beraducci, a landscape architect, Frederick Stinson; the son of a former neighbor of the Chadwells, the defendant, Charles T. Arena, Priscilla Arena, predecessors in title of the defendant, and Charles T. Arena, Jr., their son. All exhibits introduced into evidence are incorporated herein for purpose of any appeal.

The plaintiffs admittedly do not have record title to the area in dispute. They failed to bear their burden of proving acquisition of title by adverse possession and I therefore find for the defendant. More specifically on all the evidence I find and rule as follows:

1. The recorded plans suggest the parties both claim under John N. Robbins, apparently a common owner of all land involved, but chains of title to three lots in question were not introduced into evidence, however, so definitive proof of the record title is not before me. I assume but do not know that there are plans recorded in the Registry which show the Robbins development.

2. The plaintiffs derive their immediate title from Alvin S. Chadwell et al who conveyed Lot 8 to them by deed dated May 22, 1973 and recorded in Book 5977, Page 691. The deed specifically conveys only Lot 8 and bounds southeasterly by "land now or formerly of Charles A. and Thelma B. Pare, 90 feet". Mr. and Mrs. Pare were predecessors in title of the defendant, and the distance of ninety (90) feet clearly is the northwesterly line of Lot 9.

3. The plaintiffs testified that Mr.Chadwell had pointed out a stone wall close to the southeasterly line of Lot 9 as the southeasterly boundary of the property he was selling, but if so, he clearly was in error. He now is deceased, and his wife lives in Florida. She was not deposed as provided in the Massachusetts Rules of Civil Procedure, and although the trial was continued for several months so that the plaintiffs could arrange for this, little evidence was introduced of any use by the Chadwells of the disputed area. Mr. Stinson did testify that he, his father and Mr. Chadwell both dumped leaves in the rear of the yard of the home on Range Heights Circle, but there was no other evidence of adverse use of Lot 9 if indeed this is the area where the dumping occurred.

4. After the acquisition of title by the plaintiffs in 1973, they began to add grass clippings and leaves to Lot 9 after first clearing the debris therefrom and adding a layer of rocks to the low stone wall already in place. A second wall, perpendicular to the first was built by Mr. Caputo. In the late 1970's the plaintiffs added sand and loam to finish and level the grade. A lawn was planted, and a variety of trees and shrubs also planted.

5. The defendant acquired title to Lots 5 and 9 in 1987 from Priscilla Arena by deed dated April 27, 1987 and recorded in Book 8925, Page 359 (Exhibit No. 11). The Arenas originally acquired title in 1961, and the complaint admits they have record title to Lot 9, the area in dispute. They first became aware of the fact that the plaintiffs were working on Lot 9 in 1984.

6. In 1987 the defendant had the plaintiffs served by a constable of a notice to prevent the acquisition of an easement as well as having the land posted (Exhibit No. 7). The plaintiffs responded with a claim that they had acquired title by adverse possession (Exhibit No. 6).

7. The defendant proceeded to commence construction on Lot 9 by having a bulldozer commence removal of the rocks and trees. This action followed with an injunction being issued to restrain the defendant from entering thereon.

To acquire title by adverse possession the plaintiffs must show at least twenty years of actual continuous, exclusive and notorious use of the premises adverse to all the world. The plaintiffs' case clearly falls short of the required time period. The use, if any, by their predecessors was the casual dumping of leaves and clippings by neighbors on a lot with a difficult terrain. It does not appear to have been under any claim of right but merely as a convenience and in any event did not rise to the degree of use sufficient to put the true owner on notice that his property is being used by another under a claim of right. The same objection lies also to the plaintiffs' activities during most of the seventies, and it was not until the sand and loam was dumped and the plantings added that the Arenas knew or should have known of the adverse claim. The period for the acquisition of title by adverse possession did not start to run until the late 1970's and about ten years elapsed before the defendant disputed the claim both by action and by answer. This is far short of the twenty years of adverse possession the doctrine requires; indeed the period of the plaintiffs' ownership is vulnerable to the time standard since there was no evidence of prior use to which they might tack.

The plaintiffs' request for rulings are denied.

Judgment accordingly.


[Note 1] Recording references herein are said Essex South District Registry of Deeds.