MISC 11-449381

May 23, 2012

ESSEX, ss.

Long, J.



This case is plaintiffs Carole and Brian Cafferty’s adverse possession claim for the parts of their garage and driveway not otherwise on their property at 23 Sargent Avenue in Beverly. More precisely, the claim is for the corner of the garage which encroaches on 5 Clark Avenue, owned by Mr. Turner and mortgaged to CitiMortgage, and the remainder of the garage, plus the bulk of the driveway, located on land owned of record by the City of Beverly, which acquired it in a tax taking. See Ex. 1, attached (survey). The City has denied plaintiffs’ claim. Mr. Turner has done likewise and, in addition, counterclaimed for trespass. CitiMortgage claims to lack sufficient knowledge to admit or deny and calls upon the plaintiffs to prove their case.

The Caffertys have now moved for summary judgment against the City, and the City has cross-moved for summary judgment against them. For the reasons set forth below, the Caffertys’ motion is ALLOWED and the City’s DENIED.


Summary judgment is appropriate when, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991) and cases cited. This is an adverse possession case. “Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” [Note 1] Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Such use must be continuous or uninterrupted during the statutory period. See Mendoca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) (use by owner of record during statutory period breaks continuity of adverse claimant’s possession and vitiates claims). “All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, the acts of the wrongdoer are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof of an actual occupancy, clear, definite, positive, and notorious.” Cook v. Babcock, 65 Mass. 206 , 209-210 (1853). “If any of these elements is left in doubt, the claimant cannot prevail.” Mendoca, 354 Mass. at 326 (internal citations omitted).

Where, as here, municipally-owned property is in question, there is an additional issue with respect to that land. The plaintiff must show it has not been held “for conservation, open space, parks, recreation, water protection, wildlife protection or other public purpose.” G.L. c. 260, §31. The Caffertys and the City have stipulated that the City’s land, acquired in a tax taking, has never been used for a public purpose. See Notice of Docket Entry (Feb. 13, 2012). It is thus subject to adverse possession if all of the other elements are proved. Sandwich v. Quirk, 409 Mass. 380 (1991). For municipally-owned property acquired by tax taking, the twenty-year period begins on the date the land was taken. Id. at 385.

The City has adopted the Caffertys’ Statement of Uncontested Material Facts in its entirety which, in pertinent part, shows the following. [Note 2] For purposes of this motion, they are thus undisputed facts. [Note 3]

According to the City Assessor’s records, the garage (identified as a carport) was built in approximately 1920. The Caffertys are currently paying taxes on it.

The City acquired its parcel (approximately 651 square feet in size) (the “City parcel”) by instrument of tax taking dated May 22, 1964, recorded at the Essex (South) Registry that same day. No public purpose was articulated in the instrument. The public auction took place on June 8, 1967. There were no bids, and the City thus became the purchaser. The deed to the City is dated June 20, 1967 and was recorded on June 29, 1967. The tax taking was from the then-owner of the City parcel, Mary Esselstyn. The taking was not from 23 Sargent Avenue (currently the Cafferty property), nor from any prior owner of 23 Sargent Avenue.

Approximately half the garage serving the house at 23 Sargent Avenue and either all or substantially all of the driveway leading to that garage are on the City parcel. See Ex. 1. The earliest evidence of the use and maintenance of the garage and driveway in connection with 23 Sargent Avenue came from James and Linda Seeley, who purchased that house on August 29, 1977. According to the Seeleys, the garage and driveway were in the same location they are today. They lived at 23 Sargent Avenue from their time of purchase until they sold the property to plaintiff Carole Cafferty on July 31, 2003. They used and maintained the garage, the driveway, and the remainder of the City parcel as their garage and driveway during the entirety of the time they owned 23 Sargent Avenue, and did so exclusively, openly, notoriously, adversely and continuously without asking or receiving permission from the City or anyone else. See Affidavit of James Seeley (Jun. 17, 2011); Affidavit of Linda Seeley (Jun. 17, 2011).

Plaintiff Carole Cafferty purchased 23 Sargent Avenue on July 31, 2003. She later transferred it to herself and her husband/co-plaintiff Brian Cafferty by deed dated November 26, 2006. From July 31, 2003 through the present, one or both of the Caffertys have used and maintained the garage and the entirety of the City parcel as their garage and driveway exclusively, openly, notoriously, adversely and continuously. They neither asked for, nor received, any permission from the City or anyone else to do so. See Affidavit of Carole Cafferty (Jan. 17, 2012); Affidavit of Brian Cafferty (Jan. 17, 2012).


In sum, from at least August 29, 1977 and continuing thereafter, uninterrupted, to the present (i.e., for more than twenty years after the City acquired title by tax taking), either the Caffertys or their predecessors in title have used and maintained the entirety of the City parcel as their driveway and garage, exclusively, openly, notoriously, adversely, and without permission from the City or anyone else. Each of the elements of adverse possession has thus been established. See Mass. Bldrs. Inc. v Hanson, 30 Mass. App. Ct. 930 (1991) (use of property as garage and driveway sufficient for adverse possession); Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (construction of driveway and use of land as parking area sufficient for adverse possession, citing cases); Bucella v. Agrippino, 257 Mass. 483 , 488 (1926) (plaintiff can tack prior periods of adverse use by predecessors in title). The Caffertys have thus established title by adverse possession to the City parcel, free and clear from any adverse claims by the City. Their motion for summary judgment against the City is thus ALLOWED, and the City’s cross-motion for summary judgment against them is DENIED.


Exhibit 1

Plan of garage area


[Note 1] Actual use consists of “such changes upon the land that constitute such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (internal citations and quotations omitted). “[T]he nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right…” Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). “To prove the use to be adverse, it is not sufficient to show an intention alone to claim [the area] as of right, but that intention must be manifest by acts of clear and unequivocal character that notice to the owner of the claim [of right] might be reasonably inferred.” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 842 (2008). Such acts of ownership must be sufficiently open and notorious to give notice “to all the world…of an adverse claim of title.” Phipps v. Crowell, 224 Mass. 342 , 343 (1916). While the record owner’s actual knowledge of such use is not required, the claimant must show that his acts were such that the owner should have known of such use. Foot v. Bauman, 333 Mass. 214 , 218 (1955).

[Note 2] Plaintiffs’ Statement of Material Facts and Legal Elements in Support of Plaintiffs’ Motion for Summary Judgment (Jan. 17, 2012); City of Beverly’s Motion for Summary Judgment at 1 (Feb. 3, 2012) (“This Motion is made without additional supporting affidavits, rather the defendant City of Beverly in support of this motion relies upon the Plaintiffs’ Statement of Material Facts and Legal Elements in Support of Plaintiffs’ Motion for Summary Judgment.”).

[Note 3] I take a moment to emphasize the obvious. The facts set forth below are agreed only as between the Caffertys and the City. Since neither Mr. Turner nor CitiMortgage agreed to them nor are parties to the cross-motions at issue here, they are not bound by any of these facts.