MISC 128429

September 6, 1989

Middlesex, ss.



This is a boundary dispute concerning a triangular parcel of land located northerly of Highland Street in Weston. The parties agree that record title is in the Defendant Costagliolia ("Defendant"), subject to a mortgage to the Defendant Workingmen's. While not disputing the Defendant's record title, the Plaintiffs claim to have acquired ownership by adverse possession.

The Defendant has moved for summary judgment and in regards thereto, this matter was argued by counsel on April 10, 1989; in addition, both parties have filed memoranda and supporting affidavits. After considering all of the foregoing, I find and rule that there are no genuine issues of material fact, and that the case is ripe for summary judgment pursuant to Mass. R. Civ. P. 56. Community National Bank v. Dawes, 369 Mass. 550 , 554 (1976).

I find the following facts to be pertinent:

1. The Defendant is the record owner of a triangular parcel of land lying northerly of Highland Street in Weston, said parcel being a portion of the land conveyed to the Defendant by deed from Abraham K. E. Kuiper ("Kuiper"), et ux dated January 6, 1986 and recorded with the Middlesex South District Registry of Deeds in Book 16696, Page 372. This parcel abuts the Plaintiffs' property on the east. I find there is no ambiguity in the record descriptions.

2. Sometime in 1963, the Plaintiff, Vincenzo Anza, had his property surveyed. The resulting plan showed the Plaintiffs to be the owners of the disputed parcel. This plan, however, was never recorded.

3. At the time of the survey, said Plaintiff and the surveyor placed five or six iron pipes along the westerly boundary, as shown on the plan. This boundary is eight hundred and seventy (870) feet more or less in length. The pipes protrude from the ground from about twelve to fourteen inches. Some are somewhat difficult to find because of undergrowth.

4. The disputed parcel is heavily wooded with heavy ground vegetation.

5. The acts relied upon by the Plaintiffs to establish adverse possession are:

a) installation of the iron pipes;

b) removal of some dead trees which were sold as firewood;

c) the occasional grazing or rooting by cattle or pigs, which apparently has not been conducted for at least the past twenty-five years.

6. Sometime in 1973, there may have been a conversation between the Plaintiff, Santo Anza, and the Defendant's predecessor in title, Kuiper, during which Kuiper agreed to the line of pipes being the boundary. There was no written or recorded memo of such agreement.

In consideration of the foregoing, I find and rule that:

1. The activities of the Plaintiffs on the disputed property are not sufficient to establish and/or support their claim of adverse possession. These activities were not such as would put an owner of ordinary diligence on notice that his land was being so possessed.

2. Even if Kuiper had agreed to the "iron pipe" boundary line, such acquiescence having at best been only for a period of thirteen years and there being no record or evidence of notice of such to Defendants, it is not binding on the Defendants.

3. The Defendants' motion for summary judgment is allowed. This matter is dismissed.

By the Court.