MISC 134087

January 8, 1992

Essex, ss.



By complaint filed May 8, 1989, pursuant to G.L. c. 231A, §1, and amended March 29, 1991, Plaintiffs seek a declaration that they have acquired title to a parcel of land in Saugus ("the Disputed Parcel" or "Locus") through adverse possession and ask that this Court enjoin Defendant from building upon, paving or otherwise interfering with their use of said Disputed Parcel.

This case was tried on June 14 and July 19, 1991, at which times the proceedings were transcribed by a court-appointed reporter. Seven witnesses testified and twenty-eight exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and, pertinent documents, I make the following findings:

1. Plaintiffs are the owners of a parcel of registered land containing ("the Registered Parcel") approximately 7,410 square feet in area, in Saugus known as 4 Tower Road, and shown as "Lot 4" on Land Court Plan Number 27906-B. (Exhibit No. 7) ("the Land Court Plan").

2. Locus is a multi-sided parcel, approximately 3,470 square feet in area, abutting Plaintiffs' Registered Parcel to the southwest and is outlined in yellow on a plan entitled "Plan of Land in Saugus, Mass." dated June 12, 1991 ("the Plan") (Exhibit No. 16).

3. Plaintiffs acquired their Registered Parcel as tenants by the entirety from John A. Hollett, by Transfer Certificate of Title Number 31490, dated July 12, 1963.

4. By deed dated January 15, 1981, and recorded at Book 6871, Page 152, Defendant, Trust acquired the Disputed Parcel.

5. It appears that the Saugus assessors have included the Disputed Parcel with Plaintiffs' Registered Parcel for assessment of taxes, and accordingly Plaintiffs appear to have paid taxes on the Disputed Parcel since at least 1964.

6. Plaintiff, Albert Maraia ("Maraia"), frequently worked and conducted various activities in the Disputed Area after moving onto the Registered Parcel in 1963. In 1964 and 1965, Maraia built two stone walls approximately three feet high, shown on the Plan as "Stone Retaining Wall" and "Stone Wall" on the westerly boundary of the Disputed Parcel, to prevent water damage to such Parcel. The walls, while running along the boundary, did not enclose the entire westerly boundary. Along such boundary and between the two stone walls were boulders and trees which prevented erosion in that area. Maraia also removed some of those boulders in 1965 to protect his children who played in that area.

7. In 1965, there was a driveway ("the Driveway") on the Disputed Parcel, which Driveway bordered Tower Road for approximately twenty feet and extended approximately to the area where the chain link fence bounding the patio is presently shown on the Plan. In 1969, Maraia increased the area of the Driveway, extending it approximately three feet along Tower Road.

8. Since moving to Locus in 1962, Plaintiffs have parked their cars on the Driveway. Since 1981, they parked a trailer on the Driveway.

9. In approximately 1965 or 1966, Maraia constructed a basketball hoop ("the Hoop") on the Disputed Parcel at the southwesterly edge of the then existing Driveway. From the southwest of the Hoop to the border marked "27.4'" on the Plan, there was a grassy area ("the Grassy Area"). Plaintiffs have four sons, presently in their mid to late twenties. Their sons played basketball at the Hoop beginning in the late 1960's and continuing through their childhood.

10. Shortly after moving to Locus, Maraia put a picnic table ("the Picnic Table") in the Grassy Area. From that time until the present, Plaintiffs have used the table to hold picnics, barbecues, parties and family gatherings. The children also played games, including football, in the Grassy Area.

11. In approximately 1965 or 1966, Maraia placed a swing set and slide in the Grassy Area, where the children played. Since 1963, Maraia maintained the grass and planted shrubs and a garden on the Disputed Parcel. In approximately 1980, Maraia installed the patio and fencing as shown on the Plan.

12. In approximately 1987 or 1988, a valve malfunctioned on a water tower located on a hill to the south of the Disputed Property, resulting in a flooding of the Disputed Parcel. The flooding destroyed a portion of the stone wall on the south of Locus and left debris on Locus. Maraia repaired the wall and removed the debris. After the flood, and in response thereto paved a larger portion of the Disputed Parcel to the extent that it is presently paved today as shown on Exhibits 25 and 26.

13. As the result of a survey done in 1965, Plaintiffs learned that they did not own the Disputed Parcel. Defendant, Angela Maraia ("Mrs. Maraia") contacted the then owner, Mr. Iapicca, and offered to purchase the Disputed Parcel, which offer was refused.

14. In early 1980, Mrs. Maraia wrote a letter to Defendant advising him of the encroachment.

In 1981, Defendant applied for a subdivision which included the Disputed Parcel. At that time Mrs. Maraia was the Clerk of the Planning Board. Shortly after the application, Mrs. Maraia made an offer to purchase the Disputed Parcel and Defendant informed her that although he did not want her to usurp his property, he would be willing to sell her a piece after approval of the development project. The subdivision was subsequently rejected.

For Plaintiff to prevail on their claim to title through adverse possession, they must prove that for twenty years, without interruption, they and/or her predecessors in title have used the Disputed Parcel in a manner which was actual, open, notorious, exclusive and adverse. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure on the part of Plaintiffs to prove any one of those elements will preclude a finding on their behalf. Gareault v. Hillman, 317 Mass. 657 , 661 (1945). The purpose behind those various requirements is to put the true owner on notice of hostile activity of the possession, so that he may be afforded an opportunity to take steps toward vindicating his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923).

If a party, whose claim meets all the requirements necessary to establish adverse possession yet in an attempt to avoid litigation, or in a proposed settlement of litigation, offers to buy the possessed parcel, the adverse quality of his use is not disturbed. Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990); See Also Warren v. Bowdran, 156 Mass. 280 , 283-4 (1892). On the other hand, an offer to purchase a parcel, where the possessor knows and admits he has no title, demonstrates that such possession is not adverse. Warren at 283-4. In general, a party's use of another's property is adverse to the owner if the manner of use and the circumstances thereof demonstrate he does not recognize or consider himself to be subject to an authority in the owner to prevent such use. Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976), quoting Restatement: Property, §458, comments c and d (1944). Further, while a party's belief that he owns property is immaterial to the question whether he has acquired title thereto by adverse possession, for such possession to ripen into a title, there must be a claim of right or an intention to appropriate and hold the property as owner, and to the exclusion, rightfully or wrongfully, of everyone else. (emphasis added) Bond v. O'Gara, 177 Mass. 139 , 143-4 (1900); Leavitt v. Elkin, 314 Mass. 396 , 399-400 (1943).

In the present case, Mrs. Maraia offered to purchase the property in 1965, from the former owner, Iapicca, and again in 1981 from Defendant as she knew from the 1965 survey that she and her husband had no title to the property. Neither offer was in the course of negotiation but was in recognition and acceptance of the true owner's rights to and interest in the Disputed Parcel. Further, Defendant's response to Mrs. Maraia's offer, i.e. that he did not want Plaintiffs to usurp his property but would sell the Parcel to them after approval of his subdivision, further evidences the permissiveness of Plaintiffs' use at least after 1981. According, I find that Plaintiffs have failed to prove adverse possession to the Disputed Parcel for a twenty year period and their complaint must be and is hereby dismissed.

Judgment accordingly.