MISC 148813

February 21, 1991

Essex, ss.



After completion of plaintiff's evidence, defendants moved for dismissal under Mass. R. Civ. P. 41(b) (2). After hearing arguments on the motion, the Court rules that plaintiff's action is dismissed on the ground that upon the facts and the law, the plaintiff has shown no right to relief. In support of its ruling the Court finds and rules as follows:

1. Plaintiff has record title to a parcel of land on Pratt Avenue in Beverly ("Plaintiff's Land") with the dwelling thereon.

2. Defendants have record title to a parcel of land on James Street in Beverly ("Defendants' Land"), on which defendants are constructing a single family residence.

3. Plaintiff's Land and Defendants' Land abut, sharing a common rear line.

4. Plaintiff brought this action under ยง6 Ch. 240 Mass. General Laws to quiet title to a portion of Defendants' Land, claiming that plaintiff had title thereto by adverse possession. The portion in question (the "Disputed Portion") consists of a ten foot extension of Plaintiff's Land into Defendants' Land, having 540 square feet.

5. The record ownership of Plaintiff's Land has been as follows: February 1959 to July 1972, W. David Crosby; July 1972 to September 1976, Robert E. and Linda M. Babcock; September 1976 to October 1984, William R. and Sally-Dee Stanton; and October 1984 to the present, plaintiff.

6. A substantial post and rail fence demarcates part of the boundary line of the Disputed Portion now but that fence was erected during the ownership of the Stantons.

7. Prior to the erection of the fence, the activities of the Stantons and Babcocks in the Disputed Portion consisted of trimming vegetation and planting and tending plants and grass.

8. The only evidence of activity on the Disputed Portion by owners or occupiers of Plaintiff's Land during the ownership of W. David Crosby was testimony of Donald Bowden. Mr. Bowden was the son of a tenant of Mr. Crosby. Mr. Bowden testified that he lived at the Plaintiff's Land for approximately a year, from the Spring of 1970 to the Spring of 1971. He testified that he cut grass behind the house on Plaintiff's Land once and that the area behind the house consisted to a small area of grass and thickets, underbrush, shrubs, trees and woods, a rough undeveloped area. From the estimates of distances given by the witness, it does not appear that his lawn cutting even extended into the Disputed Portion.

9. The evidence of Mr. Bowden in no way establishes activities which would rise to the level of adverse possession of the Disputed Portion and since activities during the Crosby ownership are essential to establish a 20 year period, plaintiff's case fails.

10. I will retain jurisdiction to make any necessary rulings with respect to the removal of the fence now standing in the Disputed Portion.

Accordingly, it is

ADJUDGED and ORDERED that the defendants' motion to dismiss be, and it hereby is, allowed.

Judgement accordingly.