MISC 177869

September 17, 1992

Middlesex, ss.



The plaintiffs Attilio E. Genova and Alice Genova (the "Genovas") of 720 Broadway in Malden in the County of Middlesex, seek by this action to prove that they have acquired title by adverse possession to Lot B ("the locus") on Lodgen Court as shown on a plan entitled "Subdivision Plan of Land in Malden, MA", dated September 26, 1990, revised October 11, 1991, by Flynn Engineering and seek injunctive relief and damages. The present record title holder, Michael L. Crocker, as trustee of Crocker Development Trust ("Crocker"), the former record owners, John T. Horn and Lynn Horn, Trustees of Joly Realty Trust, and the intervenor, Somerset Savings Bank, holder of a mortgage from Crocker to it, dated March 12, 1992 and recorded as instrument no. 127 of March 26, 1992 (Exhibit No. 21) all dispute the plaintiffs' claim. I find and rule that the plaintiffs have not established by a preponderance of evidence that they have acquired title to Lot B by adverse possession but rather that their claim is a recent contrivance to prevent the erection of a single family house on Lot B and accordingly the complaint is dismissed with prejudice.

A trial was held at the Land Court on June 9, 1992 and June 22, 1992 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 the plaintiffs, their sons Richard and Robert Genova, Mrs. Genova's sister Lucy Marderosian and her friend Joyce Fleischer testified for the plaintiffs. The defendants called Michael Flynn, the professional land surveyor who prepared Exhibit No. 1, a plan of the locus, Steven Horn, vice president of Malden Door and Window Co., Ann Ranieri, an abutter of the plaintiffs and Virginia Alexander, an abutter of the locus. There were twenty-nine exhibits introduced into evidence, some of which were of multiple parts.

On all the evidence I find and rule as follows:

1. The plaintiffs acquired title to Lots 107 and 108 as shown on a plan entitled "Plate 2 Boardman's Gardens Malden, Mass. owned by George A. McCormack", dated July, 1918, by John Dyer, Surveyor, and recorded with the Middlesex County Registry of Deeds (to which all recording references herein refer) in Plan Book 268, Plan 41 (Exhibit No. 15) by deed from Mr. Genova's parents, Paul and Mercedes, dated September 20, 1967 and recorded in Book 11397, Page 087 (Exhibit No. 4). The title reference given in the latter deed is an instrument from Rose Genova dated April 14, 1958 and recorded in Book 9127, Page 411.

2. The area of the plaintiffs' premises is 3,540 square feet with a frontage on Broadway of 46.03 feet. The mortgage which the plaintiffs executed on their purchase to Malden Co-operative Bank dated September 20, 1967 and recorded in Book 11397, Page 089 (Exhibit No. 5) covered the same two lots. Neither the deed nor the mortgage affected the land shown as Parcel B.

3. The only real estate taxes paid by the plaintiffs were those assessed on Lots 108 and 109. Taxes on Lot B were paid by the then record owners; those due at the time of Crocker's purchase were paid by the trustees of the Joly Realty Trust (Exhibit No. 10).

4. Locus is part of the land on Marion Street (now Lodgen Court) and Broadway conveyed by Catherine L. McCormack to the Malden Door and Window Company by deed dated April 3, 1939 and recorded in Book 6281, Page 599 (Exhibit No. 16). With the sale of the complaint to John T. Horn, Jr. in 1981 the real estate was conveyed by Malden Door and Window Company to John T. Horn, Jr. and Lynn Horn, as trustees of the Joly Realty Trust by deed dated August 12, 1981 and recorded in Book 14381, Page 213 (Exhibit No. 14) and the corporation became the tenant.

5. John T. Horn, Jr. became ill, and his son Jay was entrusted with management of the company. It was decided to sell the vacant land comprising locus, and by Purchase and Sale Agreement dated July "8th", 1991 the trust agreed to sell locus to crocker (Exhibit No. 10).

6. A sale for residential purposes required a rezoning of the locus since the principal portion of the locus was zoned Highway Business. The same scenario had been followed in the past when lands to the northeast and southeast of locus, the latter premises adjoining the plaintiffs' property, were similarly rezoned. At each of such occasions Alice Genova opposed the rezoning.

7. The Malden Planning Board and City Council held a joint public hearing on February 5, 1992 (Exhibit No. 29). At this hearing Alice Genova claimed the locus always had been cultivated, and she should have been notified of the owner's plans to sell. Various members advised her that the city bodies were not the appropriate forum to consider her claim. The Planning Board recommended adoption of the zoning change to the City Council, and it was adopted on February 11, 1992.

8. At the public hearings Mrs. Genova admitted that Malden Door & Window owned the premises but objected to the failure to notify her of their plans. She also objected to a house being erected on the land as "that is going to box us right in. It's just like being in a box. I feel that we should have had first option definitely." When pressed by board members as to whether she thought she owned the land, she said it was a touchy question; asked if she thought her activities caused the property to accrue to her, she recognized she was not qualified to answer (i.e., "I wouldn't know how to address that really.")

9. After the favorable action by city authorities John T. Horn, et al, Trustees of Joly Realty Trust conveyed the locus to Crocker by deed dated March 12, 1992 and recorded on March 26, 1992 in Book 21874, Page 548 (Exhibit No. 11). Simultaneously Crocker executed the mortgage to Somerset Savings Bank.

10. After the purchase of locus Crocker expended funds to have the land cleared and the foundation poured. It was not until April 14, 1992 that this action was commenced. Mrs. Genova never claimed to have acquired title to locus at the municipal hearings, only that the record owner should have advised her of the trust's plans. It was members of the Planning Board or City Council that first suggested the doctrine of adverse possession.

11. The title references in the deed to Attilio and Alice Genova suggest that the property at 120 Broadway had been in the Genova family prior to 1967, but earlier deeds were not introduced nor was there any reliable testimony as to activities of Attilio's grandfather or others on the locus.

12. The property to which the plaintiffs hold record title has only 3,540 square feet upon which sits a large home very close to the southwesterly line. There is an existing driveway from Broadway to the rear of the house on the northeasterly side of the lots. A rickety fence on the southwesterly side approximately marks the line between the plaintiffs' lots and that of the trust. A fence continues behind the Malden Door and Window building nearly to Lodgen Court and separates the land actively used by the corporation and locus. There have been times, however, when doors and windows have been stored on locus.

13. Doubtless over the many years that the successive owners of the Malden Door and Window Company directed their primary interest to the opposite side of their building the activities of the plaintiffs who have a very small lot with a large house spilled across the line. There may have been family get togethers immediately adjacent to the paved driveway, a vegetable garden close to Lodgen Court, a rock garden and a rose garden and at least one fruit tree although the plaintiffs claimed to have had raspberry and blackberry bushes, apple trees, pear trees and cherry trees and to have made apple sauce and pies. All signs of such activities, if any, were obliterated well before Crocker became interested, and there was no independent testimony as to the plaintiffs' use.

14. At some time there was a brick barbecue close to the driveway which later was replaced by a portable on a cinder block near the Alexander's fence.

15. Over the years the plaintiffs' sons in growing up played whiffle ball, baseball and table hockey in the area, and the Genovas had slung a hammock on the locus; however, in recent years it has become so overgrown that neighborhood children played in a dense area they termed a fort. Older children had been lighting fires prior to the time Crocker cleared the locus.

16. Hurricane Gloria and perhaps Bob as well downed trees on the locus, and when one hit the Alexander's fence it was Mr. Horn of the trust who offered to repair it. He also had asked the plaintiffs for a right of first refusal on their home. In turn, Mrs. Genova had complained to him about mounds of dirt dumped on locus by a contractor working in the neighborhood. Prior to this time there were old shopping baskets, beverage containers and urban flotsam and jetsam scattered on the Lodgen Court side of locus. The record owner cleared it in 1967 and occasionally thereafter, but nature and human nature conspired to create a jungle with debris. On the other hand the surveyor did not remember locus as a dumping ground and did see some apples and grass.

17. The excavating contractor for Mr. Crocker had to enter through high grass, shrubbery, weeds and dirt piles. The clearing started in March of this year, three men working with a 583 backhoe wood mulcher and two chainsaws cut down fifty trees.

18. The Malden Door and Window Company and its successors always held itself out as the owner as indeed it was. By instrument dated July 23, 1952 and recorded in Book 7980, Page 559 it granted to Malden Electric Company an easement to construct one pole with appurtenant wires either on locus or its abutting land (Exhibit No. 19). More importantly it granted to Massachusetts Electric Company by instrument dated June 30, 1972 and recorded in Book 12274, Page 370 an easement for the transmission of electricity and for telephone use in Marion Street, now Lodgen Court (Exhibit No. 20). And when the City of Malden laid out the latter street as a public way it was from John T. Horn, Jr. and Lynn Horn, trustees, and others, not from the plaintiffs, that the fee in the private way was taken by instrument dated May 29, 1986 and recorded in Book 17510, Page 033 (Exhibit No. 18). In addition during the time that the plaintiffs are claiming they adversely possessed locus, it and other land was sold in 1981 by Malden Door and Window Company to John T. Horn, Jr., et al, Trustees and was mortgaged by the grantees to Malden Trust Co. by instrument dated July 23, 1987 and recorded in Book 13403, Page 306 (Exhibit No. 17). Apparently neither the grantees nor their mortgagee found such evidence of third party possession as to concern them.

19. This Court after initially granting a temporary restraining order refused to issue a preliminary injunction. The intervenor required Crocker to cease construction until this controversy had been resolved. Consequently the framed in building on locus has sat on its cleared lot until the conclusion of the trial and this decision.

The plaintiffs claim to have acquired title by adverse possession to the land which Crocker purchased from the trust, the record title holder. In view of the purchase and the commencement of construction this action may well have been barred by laches. The parties did not argue this facet, so I do not rest my decision on it, but on the plaintiffs' failure to prove by a preponderance of the evidence that they had acquired title by adverse possession. Such is wrested away from the record owner by actual open and notorious possession adverse to all the world under a claim of right continuous and uninterrupted for at least twenty years. Ryan v. Stavros, 348 Mass. 251 (1964); Norton v. West, 8 Mass. App. Ct. 348 (1979). If any element of the acts which constitute adverse possession is lacking, the party claiming to have so acquired title cannot prevail. Mendonca v. Cities Service Oil Company, 354 Mass. 323 (1968).

The plaintiffs' efforts to establish title by adverse possession fall short of the required proof in at least two ways. The activities of the plaintiffs, to the extent the testimony is credible, were centered in the middle of the locus and close to the plaintiffs' backyard. They were not "open" so far as the record owner was concerned who could only view the property from the Lodgen Court side. It is also apparent from the mortgages and the taking that the plaintiffs' activities on the locus were not readily apparent. The cases emphasize that they must be such as to put the true owner on notice of the plaintiffs' activities. I find that this standard has not been met.

Even more damning to the plaintiffs' case are the admissions of Alice at the public hearings. It is clear she never claimed that her activities were under a claim of right which had brought her title. Adverse possession was an afterthought. Rather she objected, as she had to the other two new houses near her, to plans to build on locus and seized on the doctrine mentioned at the hearing as her vehicle. She cannot, however, prevail.

I have not ruled on the defendant Crocker's requests for findings of fact and rulings of law since I have made my own.

Judgment accordingly.