MISC 137241

December 6, 1991

Essex, ss.



Dr. Arthur Hewett, now deceased, a family physician practicing in Newburyport, also engaged in real estate transactions with his brother in years gone by. There is today a Hewett Real Estate Management Company still in existence, and his son Edward A. Hewett, Sr., one of the defendants has for many years been the building inspector in the Port city as well as a participant in the family business. This litigation arises out of the Hewett family real estate holdings, and the discovery that the parcel of land on which is located the family residence at 6 Green Street in Newbury is too small to accommodate the present structure. Dr. Hewett had built a home for his mother at 4 Green Street and later one for his own family at 6 Green Street, and there was a miscalculation as to the location of the latter, particularly an addition made thereto. Accordingly a dispute now has arisen between the present owners of 6 Green Street, Mary Ellen McLeod, Julie A. Cole and Edward A. Hewett, Sr. and the record owner of the property to the south now known as and numbered 8 Green Street, the plaintiff Tracy Lownes Lamport, as to the ownership by the Hewetts of any land in addition to that to which they hold record title. The Hewetts claim to have acquired title by adverse possession to a triangular parcel of land containing about 3,567 square feet adjacent to the parcel as to which there is no title dispute. This claim is set forth in the answer and counterclaim to the plaintiff's action to remove a cloud on title pursuant to the provisions of G.L. c. 240, §6. The plaintiff answered the counterclaim by alleging that if title had been acquired by adverse possession, all such acts occurred more than twenty years ago and have the fee simple acquired has been cut off by the adverse possession of the plaintiff and of her predecessors in title. The plaintiff also claims that the defendants are barred by laches from asserting its claim of adverse possession.

A trial was held at the Land Court on April 25, June 3, June 13 and August 13, 1991 at which a stenographer was appointed to record and transcribe the testimony. A total of 34 exhibits and one chalk were introduced into evidence and are incorporated herein for the purpose of any appeal. Among the exhibits was the deposition of Henry J. Donahue, a predecessor in title of the plaintiff who died prior to the date during the trial at which he was to testify. Exhibit No. 24 is a stipulation entered into by the parties. A view was taken by the Court in the presence of counsel.

The parties have stipulated, and I so find and rule as follows:

1. The plaintiff, Tracy Lownes Lamport ("Mrs. Lamport"), holds record title to a parcel of land with improvements thereon known as 8 Green Street in Newbury, Massachusetts (the "Lamport property"). The Lamport property is shown on the plan dated August 25, 1980, recorded with the Essex county Registry of Deeds in Plan Book 160 as Plan 92. The Lamport property encompasses the entire area in dispute. Either Mrs. Lamport, her husband Allan Lamport ("Mr. Lamport"), or Mr. Lamport and Mrs. Lamport together, have held title to the Lamport property continuously since June 12, 1979.

2. The defendants, Edward A. Hewett, Sr., Julie Cole and Mary Ellen McLeod hold record title to the parcel of land with improvements thereon known as 6 Green Street in Newbury, Massachusetts (the "Hewett property"). The Hewett property lies adjacent to, and to the north of, the Lamport property. The defendants have held record title to the Hewett property since June, 1976. Between June, 1932 and June, 1976, the defendants and/or members of the Hewett family, including Arthur J. Hewett, Jr., held record title to the Hewett property.

3. The southwest corner of the Hewett house encroaches by several feet over the record boundary between the Lamport property and the Hewett Property. This encroachment has existed since approximately 1938, when the encroaching portion of the Hewett house was added on to the existing, non-encroaching dwelling.

On all the evidence I further find and rule as follows:

4. It is unclear from the record whether Dr. Hewett acquired, at one time, title to the entire parcel of land on which his mother's home at 4 Green Street and his home at 6 Green Street were built. The parties did not introduce any of the deeds of record either to the plaintiff or to the defendants' predecessor so the Court lacks this knowledge which would have been helpful but not essential. At some point, however, the adjoining property at 4 Green Street passed to the O'Connor family, and there was a boundary adjustment between John J. O'Connor, Jr. and the defendants.

5. Dr. O'Connor's wife and the mother of the defendants and their sibling Arthur died in 1932, and the children's aunt Ella raised them. After her death Dr. Hewett married again in 1943, and stepmother Mary Hogan lived at the property until approximately four years ago when she entered a nursing home. She has since died.

6. The defendants and their brother Arthur who conveyed his interest to his sister Mary Ellen at the time of his marriage have not lived at the Hewett premises since 1974 (or 1976) when Arthur Hewett married and left the family home. He was the last of the children to live with his stepmother and while the Hewett children visited her frequently (with the exception presumably of the daughter who lived in New Jersey), they were not present on a day to day basis.

7. The southwesterly boundary of the Hewett property of record commences at a monument on Green Street which formerly was marked by a birch tree and runs thence northwesterly 63°15'24" west to another stake as shown on a plan entitled "Plan of Land in Newbury, Massachusetts" by Port Engineering Assoc. Inc. dated May 10, 1976 and recorded as Plan No. 52 in Plan Book 144 at the Essex South District Registry of Deeds (the "Plan"). A copy of the Plan is attached hereto as Appendix "A". The Plan shows the encroachment of the Hewett house across the southwesterly boundary; the encroachment is the result of a 1943 addition which squared off the corner of the house, enlarged the sun porch and made a bedroom for the two Hewett daughters possible on the second floor.

8. Both the mother and stepmother of the defendants planted shrubbery from Green Street in a westerly direction as did Aunt Ella. The birch tree itself apparently was planted by the wife of a predecessor in title and is no longer standing. The shrubbery in question is a few feet distant from the record boundary line on the southerly side thereof. A much larger parcel of land owned by the plaintiff adjoins the land of the Hewetts on the southwest. From the early 1930's for a period of approximately forty (40) years the Hewetts engaged in sporadic activities on the land of the plaintiff. From sometime during World War II the parents of Henry J. Donahue lived next door at 8 Green Street; when Mr. Donahue, Sr. died, Henry's family moved in with mother, and he continued to live there until the sale to Mr. Lamport in 1979. During the time frame of the Donahue ownership the Donahue property consisted of the original house with its front door on Green Street and a large barn some distance behind with sliding doors on both the northerly and southerly sides of the barn. Both the senior Mr. Donahue, James H. Donahue, and the deponent had horses which they kept in a corral or a fenced in area to the west of the barn. The driveway to the Donahue house was on the southerly side of the house and not in the area between it and the Hewett premises. The Donahue activities accordingly were concentrated in this area to some extent other than for the stabling of the horses and their being put out to pasture in the rear of the premises.

9. The Hewetts claim over the years to have used a triangular parcel of the Donahue land starting at the birch tree and running at right angles to the line of Green Street to the point of intersection with the westerly line of the Hewett parcel extended in a southerly direction (the "disputed area"). This parcel comprises approximately 3,567 square feet.

10. I find and rule, however, that the area to which the defendants have acquired adverse possession is much smaller. The Hewetts engaged in multiple activities on portions of the plaintiff's land difficult to locate including childhood play involving use of a sandbox and a seesaw, the planting of fruit trees such as peach and apple trees, lilac bushes, the placing of lawn furniture during the appropriate season as well as a bird bath and the periodic erection of a summer screened in enclosure which crossed the record property line from the rear of the Hewett house onto the Donahue land. Additional activities include a victory garden by mother Mary in the years during World War II, the taking of numerous family pictures in some portion of the premises and the carrying on of childhood games which inevitably progressed to those engaged in by teenagers such a croquet and volleyball. There is no doubt that the Hewetts continually passed from Green Street along the southerly side of their houses to the backyard. After the children gradually married and left home, they returned frequently to visit their stepmother, and family parties took place in the side yard.

11. Dr.Hewett had a sump pump in the westerly corner of his basement together with a pipe which conducted the water out of the house and ran both onto the Donahue property or into the Hewett yard. This pipe was buried during the work carried on by the Lamports, but the Hewetts did not complain about this. Within the disputed area there also is a cesspool which served the Donahue house for its sink or dishwasher.

12. The company delivering coal in the distant past to the Hewett house crossed the disputed area and placed the coal on the coal chute which led to the bin in the cellar beneath the sun room. Subsequently the heating was converted to oil, and the oil outlet pipe appears to have been around the corner in the rear wall of the Hewett home. It is unclear whether service continued to come in from Green Street.

13. There was a dispute as to who arranged to cut the grass in the disputed area. Mr. Donahue had a sit-on mower, and when he moved into the property about 1968 after his father's death, he mowed the entire area between the two homes and the Hewett backyard as well. He also testified that he plowed the snow from a parking area which the Hewetts had made in front of their house so that the elderly Mrs. Hewett would be able to get in and out. He cut the grass for her as well. Mr. Donahue also testified that his father was too lazy to have done the mowing himself, but that he had two hired hands who took care of the grass prior to the senior Donahue's death and Mr. Henry Donahue's assumption of the task. In earlier time phase the Hewett boys did some of the mowing as well. These activities were carried on by the Donahues on the Hewett land and occasionally by the Hewetts on the Donahue land. They were carried on in a spirit of neighborliness and did not constitute a claim of adverse possession.

14. In the late 1970's John H. O'Connor, Jr. elected to sell the home formerly occupied by the defendants' grandmother at 4 Green Street in Newbury. As part of this transaction for reasons not apparent on this record an exchange of two triangular parcels was entered into between Mr. O'Connor and the Hewetts. These conveyances are evidenced by a deed from John H. O'Connor, Jr. to Mary Ellen McLeod et al dated July 1, 1977 and recorded with said Deeds in Book 6380, Page 338 conveying Parcel A on a plan entitled "Plan of Land in Newbury, Mass. Owner John M. O'Connor et al" dated May 10, 1976 by Port Engineering Assoc., Inc. (Exhibit No. 22), the deed being Exhibit No. 23A. The Hewetts in turn conveyed to Mr. O'Connor Parcel B on said plan by deed dated July 1, 1977 and recorded with said Deeds in Book 6380, Page 339 (Exhibit No. 23B). The Hewetts thus acquired additional frontage on Green Street and Mr. O'Connor acquired a larger backyard. The plan makes apparent that the Hewett property prior to the O'Connor conveyance was a parallelogram. If the Hewetts acquire the additional 3,500 square foot parcel which they now claim by adverse possession the Hewett holdings will be converted into a rectangle.

15. The Hewetts or certainly Edward and Arthur Hewett knew by 1977 that their home encroached on the adjoining Donahue property since Exhibit No. 22 makes this readily apparent. Efforts were made by Arhur Hewett in earlier years to purchase some property on the southerly side of the Hewett home from James Donahue and subsequently from his son Harold, neither of whom wanted to sell.

16. The Lamports became aware of the problem in the early 1970's and furnished Mr. Edward Hewett with copy of a survey by Port Engineering which showed the encroachment, but Mr. Hewett did not want to confront this problem. Part of his reasons for this stem from a desire not to upset his stepmother who was aged and still living in the house, and the problem continued unresolved for many years. During this period of time the Lamports considered purchasing the Hewett home as a home for Mrs. Lamport's father, but he elected to stay in his present residence without the Commonwealth. The Lamports then made an offer to purchase the land on which the Hewett house sat, but it was either rejected or no action taken on it by the Hewetts.

17. During the decade of the eighties the Lamports commenced an extensive program to renovate the property acquired from Mr. Donahue. The original house on Green Street was extensively renovated, the main entrance was moved from Green Street to the northerly side of the building and the interior was revised with a new dining room and kitchen being installed. A glass atrium to connect the house and the former barn was built with a swimming pool therein. The barn was gutted, its interior wood was used in the house redesign and preliminary work to make living space in the barn with a design of large open living space with living room, dining area and kitchen on the first floor and bedrooms above was commenced. In the area between the properties an herb garden was created on the northerly side of the house, a new septic system was installed and extensive landscaping carried on. Everything has been done in perfect taste.

18. The plaintiff also installed a fence from Green Street along the record property line to its point of intersection with the Hewett house and again from the back wall of the Hewett house at the property line to the westerly boundary line. The fence was placed so close to the record line that openings were cut in it where the fence intersected the trees along the property line. The Court has never seen such an action taken, which legally was incorrect as well as evidencing an unusual mean spiritedness. The plaintiff's action in placing the fence in such a fashion isolated the side of the Hewett house and barred entry from Green Street to the backyard on the southerly side.

19. The fence in its present position bars access by the Hewetts to the southerly side of their home from Green Street in a westerly direction or alternately from the backyard out to Green Street, a passage which over the years was open to the defendants and their family predecessors.

This Court frequently has been called upon to restate the principles by which title is acquired by adverse possession as set forth in the decisions of the Massachusetts appellate courts. The use by a claimant without record title must be such that it is adverse as to all the world, open and exclusive under a claim of right without interruption for at least twenty years. An application of these principles to the facts which I have found establish that the defendants have acquired title to a small portion of the plaintiff's land by adverse possession. The narrow triangle in question starts at the point on the street where the birch tree formerly stood and continues in a westerly direction on the southerly side of the evergreen trees planted by the defendants' predecessor in title through a point five feet southwesterly of the southwesterly corner of the Hewett house and continuing to the point of intersection with the westerly line of the defendants' land extended southeasterly. The new boundary line is approximately five feet southeasterly of the southwesterly corner of the defendants' home.

It is difficult from both the testimony and the exhibits to place the exact site of the actions carried on by the defendants and their predecessors over the years in what they believed, or now allege to have believed, to be the side yard of their home, but in fact constituted the holdings of the plaintiff and her preecessors. It is clear, however, that from the period of the early thirties to sometime in the late fifties, or perhaps into the early seventies, members of the Hewett family used the area to which I have found they have acquired title by adverse possession as an extension of their side and rear yards. They directed an outlet pipe from the cellar. The lawn furniture was set out and used by the adult members of the family. The children's toys were placed in this area, and their activities were carried on within it. The visitors and family members were entertained on the side of the house. Doubtless some of these activities spilled into the larger area between the homes at numbers 6 and 8 Green Street, and the victory garden was located more clearly on land of the Donahues, but these activities were sporadic and were not continued for the necessary period of twenty years. I find and rule, however, that in the area closer to the house there were continuous activities that have led to find acquisition of title by adverse possession, including but not limited to the encroachment of the house.

The offer by one of the defendants, no longer an owner of an interest in the property at 6 Green Street to purchase a small area does not demand an opposite finding since there is case law that permits an attempt to resolve the difficulty by acquiring record as well as adverse title. While such efforts seen to have both predated and followed the 1977 O'Connor plan which clearly put the defendants on notice as to the problem, I find and rule that it does not bar the stance taken in this suit.

The plaintiff in her counterclaim to the defendants' answer and counterclaim alleges that even if the defendants had acquired title by adverse possession, the use had stopped in the late sixties and that the plaintiff tacking onto the Donahue's possession had reacquired.title by adverse possession. However, until the plaintiff began the extensive renovations of her property, little was done by the Donahues in the disputed area. Mr. Donahue apparently parked his truck in the area at times, and he mowed the entire property on his sit-down mower; clearly the Donahues also extended many acts of neighborly kindness to the defendants' stepmother. However, I do not find the use made by the Donahues and the plaintiff such as to constitute the acquisition of the triangle by adverse possession. As to the remainder of the former Donahue property I have found that the defendants have no claim.

I recognize that the defendants should have brought their claim of adverse possession to the attention of the plaintiff prior to the extensive work carried on by the plaintiff in the area between the houses. For that reason I find and rule that to the extent any part of the plaintiff's septic system or other underground pipes and wires are located within the small area to which I have found the defendants have acquired title, the plaintiffs may maintain, repair and replace such pipes, wires and other appurtenances. Otherwise I find that the plaintiff has not been harmed by the defendants' delay in positing their adverse possession claim.

The plaintiff must remove the fence to the boundary line as set forth herein, and she also should relocate any plantings within the triangle in question.

Judgment accordingly.

exhibit 1

Appendix A