MISC 130130

February 5, 1991

Essex, ss.



The dispute between the plaintiff, James J. Medeiros, as Trustee of the Medeiros Realty Trust and the defendant, Century House of Peabody, Inc. revolves around the question as to whether the defendant has acquired title by adverse possession to a narrow strip of land approximately three feet by fifteen feet between the properties of the parties and situated off Route 114 in Peabody in the County of Essex. If it has not, then there will be a second hearing to determine the damages suffered by the plaintiff from the trespass on the disputed area by the defendant together with those attributable to the occupation of a second parcel of land to which the defendant admittedly has not yet acquired title by adverse possession. This scenario is more common among individuals who frequently litigate in this forum residential boundary line disputes involving questions of use and occupation. It is rare that commercial properties are involved in such a dispute, because practicalities dictate that the matters be settled, but strong personalities on each side of the controversy may have prevented a rational resolution. While the areas involved are small, they have practical importance for the defendant whose popular restaurant constantly struggles with the problem of providing sufficient space for parking. It is even more important now with the requirements for site plan approval and the providing of parking lot configuration to the Pabody Zoning Board of Appeals. The controversy is between the plaintiff, a Chrysler dealer and his abutter, a popular Peabody restaurant, each of which has occupied their respective sites for many years. The action is framed in terms of a continuing trespass for which the plaintiff seeks a permanent injunction and damages.

A trial was held at the Land Court on September 12, 1990 and October 29 and 30 of last year at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial Edgar Kelley, a member of the bar of the Commonwealth who was involved in negotiations between the plaintiff and the defendant, on the one hand, and Chrysler Corporation, on the other, and the plaintiff were the only witnesses for the plaintiff. Witnesses for the defendant were Irene Diskes, a principal for many years in the restaurant, Theodore C. Jones, the treasurer and general manager of Century House and the son-in-law of Mrs. Diskes, Peter Ritsos, an employee of the plaintiff's dealership, Richard R. Reeves, vice president of Northeastern Fence and Supply Corporation and Christopher Richard Mello, a registered land surveyor who prepared a plan of the property of the defendant (Exhibit No. 42).

On all the evidence I find and rule as follows:

1. The parties have stipulated that the two areas in dispute shown on the plan entitled "Plan of Land located in Peabody, MA prepared for Century House of Peabody, Inc." dated August 27, 1990, and revised September 7, 1990 by Eastern Land Survey Associates, Inc. (Exhibit No. 42) are comprised of two parcels, one shown on the plan as containing 2,283 square feet but in fact, as agreed, containing 2,245 square feet and the second shown on the plan as containing 1,522 square feet but by agreement deemed to contain 1,620 square feet. The defendant has admitted that title to the larger parcel has not been acquired by adverse possession so the only question remaining as to it is the amount of the damages suffered by the plaintiff. That issue will be considered in the future.

2. The sole issue at present before the Court is whether the defendant has acquired title to the smaller parcel shown on the plan and lying between the record line and the fence erected by the plaintiff's predecessor in title. The defendant admittedly has no record title to the area, but it claims to have acquired ownership through the doctrine of adverse possession.

3. Irene Diskes, a witness, and her husband, Andrew J. Diskes, now deceased, acquired Century House in 1957 when it already was a going restaurant. The deed to Mr. and Mrs. Diskes as tenants by the entirety ran from Elly G. Hashem dated April 29, 1957 and recorded with Essex South District Deeds in Book 4363, Page 456 (Exhibit No. 2). Subsequently the real estate ownership was transferred after her husband's death by Mrs. Diskes to Century House of Peabody, Inc. by deed dated January 30, 1964 and recorded with said Deeds in Book 5146, Page 2946 (Exhibit No. 6). In the interim, however, Mr. and Mrs. Diskes had exchanged deeds with the plaintiff's predecessor in title, Arthur J. Walsh and Elsie M. Walsh and had conveyed to Mr. and Mrs. Walsh a triangular parcal situated on Andover Street by deed dated. Octber 24, 1962 and recorded with said Deeds in Book 5002, Page 320 (Exhibit No. 4A) with Mr. and Mrs. Walsh in return conveying to their abutters a portion of their land by deed dated October 24, 1962 also and recorded with said Deeds in Book 5002, Page 321 (Exhibit No. 3). The two parcels in question are shown on a plan entitled "Plan of Land, Peabody, Mass. Andrew Diskes et al" dated April 10, 1962 and recorded as Plan No. 680 of 1962 (Exhibit No. 4B). Subsequently Century House acquired from a James Lynch by deeds dated June 25, 1980 and January 31, 1983 and recorded respectively with said Deeds in Book 6712, Page 164 and Book 7042, Page 309 two parcels of land to the west of the main restaurant property.

4. The plaintiff's predecessor in title had a tree farm or nursery on the property that now constitutes the automobile dealership. Not surprisingly, therefore, there was a line of shrubs identified by witnesses for the defendant as lilacs which marked the boundary line between the properties. Mrs. Diskes and the subsequent principal in Century House assumed the boundary line to be on the far side of the line of shrubs since there was a difference in elevation and the land dropped about two feet. She planted tulips in the area around the trunks of the lilac bushes and used tulips and lilacs in bud vases in the restaurant. This practice commenced about 1957 when the property was acquired. The gardener for the restaurant also took care of the strip by trimming the trees and weeding around the tulips. No other flowers seem to have been planted after the expiration of the short flowering period for tulips; there was no evidence as to whether the bulbs were taken out of the ground and replanted in the fall or how extensive the cultivation of this area was.

5. The only other use made of the strip by the defendant prior to 1976 was to pick up the trash which accumulated from Andover Turnpike (Route 114) on which the restaurant is located and where the prevailing wind blows from the highway in a northerly direction across the properties of the parties. The property of the plaintiff consists of the showroom for the dealership which is located immediately to the east of the restaurant on Route 114, the service facility which is connected to the rear of the showroom and the body shop which adjoins the rear of the defendant's property on the east. The plaintiff formerly owned a third building which also is on Route 114 to the east of the showroom, but that has been sold. To the east of what became a tire facility is the Victorian Inn.

6. James J. Medeiros formerly worked for an automobile dealership owned by the Thibault family, and when it was forced to close and Mr. Thibault either took over or concentrated on North Shore Plymouth, Mr. Medeiros became the sales manager. This happened in 1965. To a large extent Mr. Thibault was an absentee owner and Mr. Medeiros ran the business. Ultimately during the years of Chrysler's financial problems the dealership did poorly and was forced to close. Mr. Medeiros then was able to acquire a twenty-five percent in the dealership in 1978 and became general manager. Chrysler shared the ownership with him controlling the other seventy-five percent interest as well as owning the real estate.

7. In 1968 the plaintiff's predecessor decided to erect a chain link fence around the entire property of the dealership. It was the largest order received by Northeastern Fence and Supply Corporation up to that time, and the work was completed on November 1 or 2, 1968 and billed on the following Monday. The bill was paid on March 3, 1969 in the amount of $7,400 (Exhibit No. 41). The fence was not placed immediately on the property line, partly because it was an accommodation to many residential neighbors whose land abutted a portion of Chrysler's property. The principal reason apparently for the fence was to provide a safety factor for the new automobiles parked in the lot. The fence adjacent to the defendant's property was approximately 16 feet from the line at its westerly end and 3.64 feet at the easterly end of the common boundary. The other parcel as to which there is no dispute was about 9.57 feet at its southerly end and a considerably greater distance at the northwesterly end.

8. In 1976 the defendant elected to remove a garage and large tree located behind the restaurant building in order to make improvements to the building and to pave the areas in question. At this time the shrubs between the record lot line and the fence also were removed, the area was paved and parking spaces lined in.

9. In 1980 the defendant sought and obtained a variance to make improvements to its restaurant building including a handicapped ramp (Exhibits Nos. 32, 33 and 34). The site plan which was prepared showed that the parking spaces located on land of the defendant crossed the property line and encroached on the plaintiff's land (Exhibit No. 27). The layout of the lot presumably had been changed when the shrubs were removed in 1976 and the area paved, for a series of photographs in evidence show a change in the configuration. Counsel commented on the encroachment in 1980, but a spokesman for the defendant did not bring this matter to the attention of others. In 1985 another variance was applied for (Exhibit No. 35), and the plan dated March 5, 1984 (Exhibit No. 30) shows the encroachment affects seventeen spaces, part of which straddle the property line.

10. In 1982 Mr. Jones and Mr. Medeiros attempted to acquire from Chrysler Corporation or one of its subsidiaries the real estate now owned by the plaintiff. Attorney Edgar Kelley sought to arrange a deal between the parties. It was proposed that Mr. Medeiros and Mr. Jones together would buy the entire property from Chrysler and that a portion of it would be subdivided between the two parties. The mechanics of the consummation of the deal, whether by the present plaintiff acquiring the entire parcel and conveying a piece to the defendant is not clear and is immaterial. A purchase and sale agreement between Mr. Medeiros and the defendant was executed (Exhibit No. 2), but the transaction with Chrysler Corporation never was consummated. In connection with the proposal, however, plans were prepared which shows the subdivision between the presnt plaintiff and defendant and which made clear the location of the property line. There is no doubt by this time Mr. Jones was aware of the true location of the boundary line although it appears to me that he had knowledge at least as early as 1980.

11. Avco XXXVI conveyed the property formerly owned by Chrysler Corporation to the plaintiff, James J. Medeiros, Sr., as trustee of the Medeiros Realty Trust under a declaration of trust dated April 1, 1985 and recorded with the deed which in turn was dated April 8, 1985 and recorded with said Deeds in Book 7736, Page 183 (Exhibit No. 10).

12. In 1988 the plaintiff became aware that his tax bills were increasing. The Town of Danvers had increased the valuation on the vacant land situated in that municipality, and Mr. Medeiros sought some way to decrease his tax burden. He approached Mr. Jones with a request that he pay him rent to reimburse the plaintiff for the encroachment upon the plaintiff's land by the defendant's parking lot. The request was met with the contention that the defendant had acquired title to the property by adverse possession, and that accordingly would pay no rent to the plaintiff. The defendant now admits that this is not true of the larger area behind the properties more recently acquired by the defendant but still contends that title has been acquired to the parcels containing 1,620 square feet.

The law of adverse possession is familiar ground to this Court, and several recent decisions once again touched on this familiar territory. The settled rule is that possession must be continuous, uninterrupted, exclusive, open under a claim of right for at least twenty years to acquire title to a parcel of real estate. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). It does not matter if the party adversely possessing the land believes mistakenly that he has record title when in fact he does not so long as the criterion are met.

The defendant rests his case on the argument that with the acquisition by Mr. and Mrs. Diskes in 1957 of the restaurant property a period of adverse possession began to run. I find and rule to the contrary, however, and place the start of the twenty year period in 1976 when the area in question was paved. Prior to that time the activities of the defendant's representatives in the disputed area consisted of trimming the shrubs or scrub growth, however, the greenery within the strip properly can be described and picking tulips, the bulbs of which had presumably been planted although by whom and when is unclear. Tulips are by their very nature a spring flower of a seasonal nature, and there was no evidence that cultivation of the area continued past the first planting in 1957. There is no claim that during any time frame other than the spring there were flowers planted in this area so the period each year of the gardening was limited. The many photographs introduced into evidence show in many instances some bedraggled bushes in the area in question, and there are others that do look as though they might represent lilac bushes. There is no evidence as to who originally planted the area, but since the plaintiff's predecessor in title was in the nursery business, it may well have been he who planted the bulbs on the line and then dug out some top soil to create the depression to which witnesses testified. The only other activities carried on during this period in the area in question was the picking up of trash which collected there, an activity which was civic minded as well as a business oriented tactic but did not rise to the level of adverse possession. It is clear that from 1976 on when the shrubs and tulip bulbs were removed and the area hard topped, lines for parking painted on the ground and cars of business invitees parked in the disputed area, a solid basis for the beginning of the twenty years was furnished. Even so the plans which were filed with city authorities showed the property line where it correctly is located and the parking spaces extending across the line. This might suggest a permissive arrangement between the adjoining land owners, which Mr. Medeiros contended was the case. If there were no such arrangement, and I make no finding as to it since it is immaterial on the approach I have adopted, the activities in fact on the ground were sufficient to constitute the beginning of the period of adverse possession. It ended, however, with the request by Mr. Medeiros for the payment of rent and was interrupted as a matter of law by the institution of this litigation, far short of the twenty year period.

The defendant has made much of the date upon which the plaintiff's predecessor in title caused the fence to be erected in a position within the landowner's property and not on the record line. I find this date immaterial since there appears to have been no intent on the part of Chrysler Corporation to abandon its land between the fence and the property line. The fence doubtlessly was located where it was in an effort to accommodate the neighbors and to allow room to enter on its far side should any repairs or painting be required. The lines presumably were somewhat shorter as the fence was laid out, but in view of the total bill for the erection of the fence, the financial saving does not seem to be a consideration. In any event every landowner who carefully arranges to have his fence situated within his property line does not do so at his peril as the defendant suggests.

It is understandable that between individuals disputes such as that showcased by this litigation may arise, but to have two businesses engaged in a controversy like that presented to the Court over a strip of land containing 1,620 square feet is not helpful to judicial economy. It does not make sense business wise for the parties to have tried this matter. While the availability of parking spaces may be crucial to the defendant's business, there had to be a more sensible way to obtain them than the approach taken in this action. The Court can only conclude that the falling out among friends has created this scenario.

On all the evidence therefore I find and rule that the defendant has not borne its burden of establishing title by adverse possession to the area containing 1,620 square feet, title to which is in dispute between the parties, and that the plaintiff accordingly is entitled to possession. Since the matter has been bifurcated, the question of damages will be addressed after all appeals have been taken and disposed of. In the meantime I suggest that the parties may wish to consider the resolution of the question of damages by negotiation.

Judgment accordingly.