By virtue of the instant action, the plaintiffs Lawrence Owens and Patricia Owens as Trustees of the LAMO 2010 Realty Trust (LAMO Trust / plaintiffs) seek, inter alia, to establish title by adverse possession to a disputed area adjoining the southerly side of their residential property at 1250 Bedford Street, Abington, Massachusetts (locus / property). The defendants David Chu and Rosa Chu are Trustees of the 1238 Bedford Street Realty Trust, the current owner of the property at 1238 Bedford Street, Abington, which abuts that of the plaintiffs. The 1238 Bedford Street Realty Trust holds record title to the disputed area. The property at 1238 Bedford Street was acquired from the prior owner, the Spirit Realty Trust.
The plaintiffs initiated suit on June 16, 2008 seeking, inter alia, a judgment declaring that it is they who hold title to the disputed area pursuant to the doctrine of adverse possession. [Note 1]
Additionally, the plaintiffs allege as follows:
Defendant intentionally entered onto and trespassed upon property owned by the Owens by excavating across the property line, leaving debris across the property line removing a stone wall, and removing trees from property owned by the Owens.
The plaintiffs allege, as well, that Spirit Realty Trust created a nuisance by virtue of its creation of large dirt mounds-approximately 50 feet in height. They allege that dirt and dust from the dirt mound damaged the Owens. Lastly, the plaintiffs argue that the defendant willfully cut down trees, underwood and other vegetation on property owned by the Owens in violation of G.L. c. 242, s. 7.
The trial took place over a three day period concluding on March 12, 2014. The court heard the testimony of Patricia Ann Owens, Janice Carol Pike Westberg, Lawrence Martin Owens, Kenneth William Brigham, Ellis Allen, Michael Donald Mahoney, Lisa Marie Owens, Richard J. Buccheri Jr., Marie B. St. Pierre, Richard C. Barrett, and Richard J. Buccheri, Sr. This court allowed admission of 27 exhibits together with numerous sub-exhibits and chalks into the trial record. Those materials are incorporated by reference into this decision for purposes of appeal. [Note 2]
Findings of Fact
On all the credible testimony, exhibits and other evidence properly introduced at trial or otherwise before the court and the inferences reasonably drawn therefrom, this court finds as follows:
1. Lawrence Owens and Patricia Owens acquired the residential property at 1250 Bedford Street, Abington on December 19, 1969. For estate planning purposes the locus was conveyed to the plaintiffs, Lawrence Owens and Patricia Owens as Trustees of the LAMO 2010 Realty Trust (plaintiffs/Owens).
2. The Owens acquired the locus from the prior owners, Kenneth and Thelma Pike (Pikes), now deceased.
3. The defendant Spirit Realty Trust [Note 3] (SRT) acquired the abutting property at 1238 Bedford Street, Abington, in 2005. SRT sought to develop the said property for commercial purposes. Viewing the 1238 Bedford Street property from Bedford Street, it stands to the left or southward of the locus at 1250 Bedford Street.
4. The Owens predecessors in title, the Pikes, acquired the property in 1942, approximately one year after the dwelling was constructed in 1941. The acquisition by the Pikes took place approximately one year after the birth of their daughter Janice Carol Pike Westberg in 1941.
5. Kenneth Pike (Mr. Pike) commenced construction of the garage, as it currently exists, in the fall of 1951, completing it in the spring of 1952. The Pikes parked their automobile in the garage. The garage was constructed, in its entirety, on the Pikes' property.
6. Kenneth Pike also constructed a lean-to [Note 4] on the left side [Note 5] of the garage. The lean- to was constructed sometime around 1954. Its location remained unchanged for the duration of the Pikes ownership. [Note 6] It was intended to house, especially during the winter months, an open boat, approximately 15 feet long, with motor and trailer, that had been acquired by Mr. Pike in 1953 or 1954. The lean-to had doors on the front that obscured any view of the stored boat from the driveway and beyond. It had two approximate four (4) foot wide doors that swung outward. [Note 7]
7. In approximately 1947, Kenneth Pike built a fieldstone wall which figures prominently in this narrative. [Note 8] The stone wall, to the left of the lean-to, was built into the side of a hill where it was used as a retaining wall. Patricia Ann Owens described the wall in the following terms: It was about 50 feet from the treed area all the way to the sidewalk in the front of the house. [Note 9] The vegetation on the hill above the wall included, inter alia, trees, ivy, flowers and blueberry bushes.
8. Sometime in 1947, Mr. Pike installed a curb to the left of the then existing driveway. Between the curbing and the stone wall, [Note 10] Mr. Pike installed a grassy strip or lawn which he regularly maintained. [Note 11] That curbing and grassy strip remained in place until the late 1970s when the Owens enlarged their driveway to encompass the area in front of the lean-to. [Note 12]
9. The distance from the curbing to the stone wall was approximately 6 feet. [Note 13]
10. The stone wall began approximately fifteen (15) feet from the end of the carport or lean-to in the direction of Bedford Street. [Note 14] The stone wall terminated approximately five feet from the sidewalk.
11. Mr. Pike planted ivy, while his daughter Janice planted flowers on the hill. As Mr. Pikes daughter Janice Pike Westberg recounted on the witness stand: There were 19 Lady Slippers because I used to count them every spring. [Note 15] From time to time, Mr. Pike cut broken or dead branches from the trees on the hill. He kept them looking neat. [Note 16] He picked up any branches on the ground . [Note 17] Such effort, in which other family members would assist, would stretch over a couple of days in spring and fall. The branches would be cut up and used for firewood. The Pikes also cleaned leaves from the areas around the blueberry bushes. [Note 18]
12. Janice Pike Westberg testified that as a child, she virtually lived on the hill above the wall. [Note 19] Growing up, she would hide behind the trees, sit in that location and draw the wildflowers and blueberries. I love to draw, so Id sit up there and draw. Sort of like a good hideout. [Note 20] She picked leaves from that area for her kindergarten class and frequently picked blueberries in the summertime. [Note 21] She played in the area from approximately the age of 6 until the age of 12 or 13. Even after that time, however, she continued to pick blueberries as often as [she] could in the summertime. [Note 22]
13. On cross examination, the following exchange took place with Ms. Pike Westberg:
Q: Between the ages of 6 and 12 do you have any memories of your neighbors cutting down trees, cleaning leaves, you know just generally maintaining the area along the side of the property?
A: They never even came over to that area of the property. Never saw them there, ever.
Q: And who were your neighbors, again, at the time?
A: [The] Bosteels.
Q: And how long were they your neighbors?
A: The whole time we lived thereI lived there .. [Note 23] I grew up with their two daughters and we played together but never in that area. That was a huge piece of land that their property is on and they never came down that area of the property.
Q: The Bosteels never came down
14. On cross examination, [Note 24] Mrs. Owens testified, in similar fashion, as follows:
Q: And is it your testimony that at no point in time during the Bosteels ownership [1986-2005] of the property [1238 Bedford Street], you never once saw them clean the area thats in dispute, you never once saw them occupy or use that land in any shape, manner or form?
15. In testimony which this court also credits, Ms. Pike Westberg testified that when she was a child, a sand pile was maintained to the left of the curbing in front of the lean-to, i.e. a sand pile in which she played during her childhood over a course of years. Thereafter, an iris garden was planted in that area and was maintained by Thelma, her mother. A flagpole was erected early by her father toward the street. [Note 25]
16. At the time Patricia and Lawrence Owens acquired the locus in December of 1969, the lean-to or carport, the garage, curbing, grassy strip, fieldstone wall and the area above the stone wall, had remained in place, continuously so. [Note 26] The Owens family members made use of these areas from the outset. Mr. Owens continued to mow and otherwise maintain the grassy strip. The Owens maintained the ivy that covered the stone wall. Their two daughters played in the grassy strip. Family members would pick flowers. During the summer months, they picked berries from the blueberry bushes on the hill. [Note 27] From these blueberries, Mrs. Owens made pies and other blueberry desserts. [Note 28] Mr. Owens would prune overhanging branches at least once or twice a year. [Note 29] From 1969 to 2008 [the Owens] never stopped using that area. [Note 30] As the Pikes had done before them, the Owens family treated the disputed area as their own.
17. Upon their acquisition of the locus in 1969, the Owens began using the interior of the lean-to for storage purposes. [Note 31] Before acquiring their dog in 1971 or 1972, the exterior left hand side of the lean-to was used for storage purposes. [Note 32] Until the passing of their dog Duke, a German Shepherd, in 1975 the lean-to proper was used as a kennel with a three sided 8x6x8 chain link fence enclosure and gate, constructed to the front of the lean-to. [Note 33] With the use of the lean-to as a kennel, the Owens used the outside area to the left side of the lean-to more extensively for storage purposes. [Note 34] Upon his passing, Duke was buried in front of the lean-to, an area which had not yet been paved. [Note 35]
18. The Owens used the area immediately to the left of the lean-to for storage purposes, as well. [Note 36] Items so stored included, inter alia, big drum barrels for the burning of leaves, a wheelbarrow, spare tires, tools. [Note 37] There was broken glass that had been kicked out by the dog and which had been covered by wood. [Note 38] Members of the Owens family used the wooded area to the left of the stored items next to the lean-to as sort of a pathway to get to the,,, backyard from the front yard and vice versa. [Note 39] The children also played in that wooded area. [Note 40] The lean-to itself has been used continuously by the Owens from the 1969 acquisition of the locus to the present. [Note 41]
19. In 2003, due to termite infestation, the wood and glass lean-to structure was replaced with a lean-to made of cinder blocks. [Note 42] While the footprint remained largely unchanged, [Note 43] the height was increased to accommodate its use as a carport [Note 44] and the front doors removed.
20. The area to the rear of the lean-to has been in use continuously by the Owens since the acquisition of the locus in 1969. [Note 45] That area has been used for the storage of various items including grilles and PVC furniture. [Note 46] There has as well, been a rock garden with plantings, statuary, a birdbath and a weather vane, all as maintained by Mrs. Owens. [Note 47]
21. The Owens family continuously used the area to the rear of the lean-to as far back as the ten (10) foot wetlands buffer zone. [Note 48] At no time did the Owens family members occupy or otherwise utilize the area within the ten (10) foot wetlands buffer zone as shown on Exhibit 14.
22. The Owens installed two swing sets, one after the other, for use by their young daughters and by their grandson. [Note 49] The swing sets were positioned ten to twenty feet to the rear of the lean-to and the adjoining garage. [Note 50] The first was used by the Owens older daughter, Lisa Marie Owens who was born in 1969. That swing set rusted and was replaced in approximately 1983. The second swing set at that location was used by the Owens second daughter Jessica who was born in 1981 and was twelve years younger than Lisa Marie Owens. At some point, the second swing set was moved elsewhere into the backyard thereby allowing Mrs. Owens to enlarge and elongate her rock garden into space previously occupied by the swing set. [Note 51]
23. Together with her former husband, Mary St. Pierre acquired the property at 1238 Bedford Street in 1986 from the prior owners, the Bosteels. She sold the said property in 2005 to Spirit Realty Trust. [Note 52] At the time of the initial acquisition in 1986, Ms. St. Pierre had no engineering report showing the boundary line between her property and that of the plaintiffs. It was not until approximately 2004, after the property had been placed on the market that she had prepared an engineering or other report that showed the boundary line between the two properties. [Note 53]
24. Ms. St. Pierre did not ever recall there being a stone wall on or about the property line. In similar fashion, she responded I dont know. I didnt think there was anything there when asked if [t]o the best of [her] knowledge and recollection that [lean-to]structure was present in 1986 when [she] purchased 1238 Bedford Street. [Note 54] Similarly, her former husband Richard C. Barrett did not recall there being such a wall from 1980 onward. [Note 55] He did not know whether the lean-to structure was in place in 1986 when he purchased the 1238 Bedford Street property with his then spouse. [Note 56] This court affords such testimony little or no weight given its highly tentative nature. This court credits the testimony of Michael Donald Mahoney. Mr. Mahoney lived diagonally across the street from the Owens from 1967 or 1968 to 1973. Thereafter, he continued to reside in the vicinity until moving to Hanover in 1990. He recalled that the lean-to was in existence when the Owens first took title to the locus. [Note 57] He recalled the stone wall and the embankment running toward the Bosteels property. He recalled, as well, the grassy strip and attendant curbing. [Note 58]
24. There is ample evidence on the record, which this court credits, to support the conclusion that the lean-to remained in existence from the time the Owens acquired the property at 1250 Bedford Street until the present time. [Note 59] Similarly, the retaining wall remained in existence from the time of the Owens acquisition until its removal by Spirit Realty Trust in 2008. [Note 60]
25. There is no evidence on the trial record that any member of the Pike family sought or obtained permission to use or improve any portion of the disputed area. This court finds that no member if the Owens family sought or obtained permission to use or improve any portion of the disputed area. [Note 61]
26. In 2008, Richard J. Buccheri Sr. acted as the supervisor of the permitting and construction activities for Spirit Realty trust with respect to the commercial development of 1238 Bedford Street . [Note 62] His brother Robert M. Buccheri, had been the trustee of Spirit Realty Trust until the end of 2012 or the beginning of 2013. [Note 63] Thereafter, Richard J. Buccheri Sr. became the sole trustee. He participated, together with his son, in clearing and excavation activities in the disputed area. [Note 64]
27. This court specifically finds that these activities included the removal of the retaining fieldstone wall and leveling or grading of the forested area and hill into which the retaining fieldstone wall had been built. [Note 65] The land so cleared was left, in no small measure, strewn with rubble. This court is satisfied that all such clearing and excavation took place on land to which Spirit Realty held record title.
28. There is no clear evidence on the trial record that the Owens or any of them, explicitly asserted ownership to the cleared portion of the disputed area prior to its being cleared by the Spirit Realty Trust in 2008, i.e. the portion of the disputed area which included the fieldstone wall and the hill into which it was set. At most, Mr. Owens registered an objection of sorts, as reflected in the following exchange with Mr. Owens on cross examination:
Q: Prior to the machinery starting the leveling or the clearing of the land, did you ever mention to Mr. Buccheri your objection to their clearing the land?
Q: To whom did you speak?
A: I think I talked to the Junior, I think. [Note 66] I said, My wife wants to keep that wall up there. Do you mind justgo as far as the wall and back off after that?
Q: Im sorry, could I ask you to repeat that, please?....
A: I talked to himI said to him, My wife would like that wall to remain there because she loves that wall. I said, You leave that wall up there. And thats the only conversation I had with him. [Note 67]
29. On cross-examination Patricia Ann Owens testified as follows:
Q: [D]id you ever make Richard Buccheri or anyone else in Spirit Realty Trust awareor did you ever object to Mr. Buccheri or anybody else at Spirit Realty Trust prior to the land being leveled.
Q: In fact, it wasnt until after the land had been leveled that you first objected to the leveling of that land; isnt that also correct?
Q: And that was when you notified your counsel, who then wrote a letter dated on or about May 14, 2008; is that correct?
30. Once again, on cross-examination, Mr. Owens acknowledged as follows:
Q: It was the issuance of this letter by your attorney on May 14, 2008 [Note 68] that constituted the first notice that was provided to Spirit Realty Trust that there was some dispute regarding the land in question; correct?
Consequently, prior to the clearing and excavation in the disputed area, Mrs. Owens voiced no objection to the work being done. Moreover, there is no evidence that she ever notified Spirit Realty Trust or the Buccheris that she claimed title to a portion of the disputed area by adverse possession, or otherwise, until after the clearing had been completed. While Mr. Owens voiced what this court deems to be a relatively mild objection to the removal of the retaining wall only, there is no evidence that prior to the clearing, he ever notified Spirit Realty Trust or the Buccheris of his adverse possession claim or to any claim of ownership of the disputed area. It is the view of this court that this failure to assert ownership impacts the Owens trespass and damage claims. It does not, however, impact their claim for adverse possession insofar as the overwhelming weight of the evidence supports a finding of adverse possession.
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years, Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Such use must be continuous during the statutory period. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968) (use by owner of record during statutory period breaks continuity of adverse claimants possession and vitiates claim). The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights. Totman v. Molloy, 431 Mass. 143 , 145 (2000). See Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808) ([t]o constitute a disseisin of the owner of uncultivated land by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title).
To ensure that the purpose of the doctrine is met, the burden of proof rests upon the one asserting the title [by adverse possession]. The burden of proof extends to all of the necessary elements of such possession and includes the obligation to show that it was actual, open, continuous, and under a claim of right or title. Mendonca, supra, quoting from Holmes v. Johnson, 324 Mass. 450 , 453 (internal quotations omitted). If any of these elements is left in doubt, the claimant cannot prevail. Ibid. This court will consider whether plaintiffs have met their burden as to each element, seriatim.
Nonpermissive use, which has been referred to interchangeably in the case law as hostile, adverse, or under a claim of right, is in essence a lack of consent from the true owner. Totman, 431 Mass. at 145. Whether a use is nonpermissive depends on many circumstances, including the character of the land, the identity of those who benefited from the use of the land, the manner in which the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership. See Totman, 431 Mass. at 146 where the court spoke of the principle expressed in both adverse possession and prescriptive easement cases, that where the use of the land is actual, open, and exclusive for a period of twenty years, the nonpermissiveness of the use may be inferred.
This court is satisfied that the plaintiffs, and before them, the Pikes, comported themselves at all times as though they held legal title to the disputed area. The Pikes took title to the locus in 1942. Kenneth Pike installed curbing, a grass strip, and a fieldstone retaining wall in approximately 1947. As to the elevated wooded area above and behind the retaining wall, Mr. Pike, together with members of his family, utilized the area openly, continuously, exclusively and without permission. They made full use of that area, gathering blueberries and in the fall season gathering leaves as well. They planted flowers, raked leaves and cleaned around the blueberry bushes. They maintained the trees, cutting dead and broken branches. They cut and used those branches for firewood. The elevated wooded area served in effect as a natural barrier between the locus and the abutting property at 1238 Bedford Street.
Mr. Pike mowed and otherwise maintained the grassy strip. He commenced construction of the garage in the fall of 1951 completing it by the spring of 1952. Mr. Pike constructed the lean-to approximately in 1954. Most of the lean-to was located upon the land to which their abutters at 1238 Bedford Street held record title. There is not the slightest suggestion that the use of the disputed area or portions thereof by members of the Pike family, was other than adverse to the interests of the record owners.
As we have seen, title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive [Note 69] and adverse for twenty years. In the present context, the word actual refers to use and control of the land at issue, sometimes known as dominion, in derogation of the true owners rights. See Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). The acts necessary to establish actual use and dominion will vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. LaChance v. First Natl Bank, 301 Mass. 488 , 490 (1938). [T]he possessor must use and enjoy the property . . . as the average owner would use it . . . Ottavia, supra at 333, quoting from 3 American Law of Property, § 15.4, at 776-777 (A.J. Casner ed. 1952). See Kendall v. Selvaggio, 413 Mass. at 624. In most cases, to fulfill this requirement, the possessor must make 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), quoting from LaChance, supra at 491. This court is satisfied that both the Pike and Owens families have, in turn, demonstrated the requisite control and dominion over the disputed area.
The plaintiffs have produced credible evidence to show that in 1969 upon their acquisition of the locus together along with the disputed parcel, they continued the use that had been commenced by the Pikes. The evidence demonstrates that their actions with regard to the disputed area have been consistent with the usual and ordinary cultivation and maintenance of property commonly performed by landowners under similar circumstances. See Collins v. Cabral, 348 Mass. 797 , 797-798 (1965); Soer v. Daffe, 337 Mass. 420 , 423 (1951); Sea Pines Condominium III v. Steffens, 61 Mass. App. Ct. 838 , 847-849 (2004); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 904 (1993); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979). In this regard, there is ample evidence that the plaintiffs actually possessed the subject property to the total exclusion of others. Consequently, this court finds and rules that plaintiffs have met their burden in demonstrating their actual possession of the disputed area.
The same evidence that has persuaded this court that plaintiffs possession was actual also convinces it of the continuous nature of their occupation. While acts of possession which are few, intermittent or equivocal will not suffice to prevail upon an adverse possession claim, Parker v. Parker, 1 Allen 245 , 247 (1861), the above described actions taken by the plaintiffs and their family members with regard to the disputed area, extend continuously, throughout a minimum twenty-year period. There is no evidence deemed credible by this court of interruption by actions of dominion or otherwise on the part of the defendants or their predecessors in title.
As such, this court finds and rules that plaintiffs occupation of the disputed parcel was continuous. [Note 70]
The open and notorious element, the purpose of which is to place the true owner on constructive notice of the adverse claim, see Sea Pines Condominium III, 61 Mass. App. Ct. at 848, requires that the adverse possessors use and occupation of the property be of the sort that would be readily observable by the record owner. See ibid. In Foot v. Bauman, 333 Mass. 214 (1955), the Supreme Judicial Court adopted the true rule that [t]o be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious." Id. at 218. Here, plaintiffs use and occupation of the subject property (as was the use and occupation by the Pikes before them) involving as it does the construction of permanent improvements were of the type that would reasonably alert the true owner of plaintiffs possession. This is especially so with regard to those improvements such as the lengthy retaining wall and the lean-to. Accordingly, this court finds and rules that plaintiffs occupation of locus was open and notorious and performed under a claim of right.
As with the requirement that an adverse possessors use be actual, exclusivity requires a showing of "actual use and enjoyment of the property as the average owner of similar property would use and enjoy it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership . . ." Shaw, 8 Mass. App. Ct. at 156-57, quoting from 3 Am. Law of Property, § 15.3, at 765-766 (1974). Thus, what constitutes exclusive possession depends upon the type of land at issue and usage in the surrounding area. Therefore, [e]vidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city. LaChance, 301 Mass. at 490. The application of this standard does not require that the adverse possessor actually expel third parties, but merely requires such expulsion "to the extent that the owner would have excluded them." Peck, 34 Mass. App. Ct. at 557. In the instant case, the evidence supports the exclusivity of the plaintiffs use and possession of the disputed area. Plaintiffs acted towards that disputed area as would an average owner.
Lastly, there is the matter of the requisite statutory period. General Laws c. 260, §21 sets forth the statute of limitations in an action for the recovery of land [which] shall be commenced . . . within twenty years after the right of action . . . accrued . .. . The theory is that there has been a disseisin by an adverse possessor, and that consequently an owner must bring an action to recover the land within twenty years. [Note 71] Thus, the plaintiffs must demonstrate that their adverse possession of the disputed area, either by themselves or by tacking onto the prescriptive use by the Pikes before them, has spanned twenty years or more. In the instant case, the prescriptive period encompassing the fieldstone retaining wall, the grassy strip and curbing commenced in 1947. At about the same time, if not earlier, the prescriptive period commenced with regard to the wooded area above the retaining wall. Consequently, as to those elements, the twenty (20) year prescriptive period had run by the time the Pikes had conveyed the locus to the plaintiffs in 1969. This court finds that the Owens continued the adverse use of the retaining wall and the wooded area above, until 2008 when the area was cleared by Spirit Realty Trust.
As to the grassy strip and curbing, this court is satisfied that the adverse use of those specific elements was continued until the late 1970s when the curbing was removed and the grassy strip was paved over for purposes of expanding the existing driveway. [Note 72] The removal of the curbing, the paving over of the grassy strip and the ongoing use of the affected area thereafter, served to maintain the continuous adverse use of that area that had commenced in 1947.
The construction of the lean-to, a significant portion of which resided on the property of the abutting owner, [Note 73] was commenced in 1954. At the time of the conveyance of the locus to the Owens in 1969, the lean-to had been in place for approximately fifteen (15) years. The Owens, clearly in privity with the Pikes, their predecessors in title, were able to tack their usage onto that of the Pikes. This court specifically finds that the lean-to remained unchanged and in the same location until 2003. Up to that time, approximately forty-nine (49) years had elapsed and the twenty (20) year prescriptive period had long since been satisfied. In 2003 the lean-to was taken down owing to termite infestation and replaced with a lean-to made of cement block. This court finds that the Owens family stored various items, as enumerated supra, on the left hand or southerly side of the lean-to. Family members traveled around that storage area in order to access their back yard and swimming pool. The area extending directly behind the carport ending at the ten (10) foot buffer zone was used, extensively so, for storage, two swing sets, one of which had rusted out over the years, and Ms. Owens rock garden. The court is satisfied that such use of the side and rear of the lean-to satisfied the prescriptive period as well as the other elements necessary for a successful claim of adverse possession.
The area in dispute is as shown by coloration on the plaintiffs Exhibit B as appended to their Post-Trial Brief. The parties describe that disputed area as follows in the Statement of Agreed Facts submitted with their Joint Pre-Trial Memorandum:
The area in dispute is approximately 12 feet wide [Note 74] (from the alleged SRT [Spirit Realty Trust] line), by 185 feet deep (from the street front to back), [Note 75] for a total of approximately 2,200 square feet The width is slightly narrower, approximately 8 feet, [Note 76] at the street but it then increases to approximately 12 feet due to the angle of the property line.
In addition to their claim for adverse possession, the plaintiffs have alleged certain trespass claims against the defendant spirit Realty Trust. In the first instance, the plaintiffs allege that Spirit Realty Trust excavated and cleared the area between 1238 and 1250 Bedford Street in April or May 2008. [Note 77] However, the plaintiffs argument in this regard consists entirely of factual and conclusory statements to the exclusion of legal citations or analysis. For example, the plaintiffs nowhere define or discuss the concept of trespass.
Moreover, this court has determined that the plaintiffs failed to assert ownership of the disputed area until after portions had been excavated and cleared. The first such assertion occurred by letter of May 14, 2008 written by the Owens legal counsel to Spirit Realty Trust. [Note 78] The plaintiffs have failed to prove that Spirit Realty Trust, the record owner of the disputed area, was aware of competing ownership claims to that area before acting as it did. Moreover, Mrs. Owens has acknowledged that she failed to even register an objection prior to the excavation and clearing. Mr. Owens objection, such as it was, consisted of an ambiguous statement concerning the retaining wall, without mention of the trees or the mound. In no event did he assert an ownership claim. This court is not prepared to impose liability in tort under these circumstances. This is especially so as, viewed objectively, Spirit Realty Trust did no more than clear a piece of land to which it held record title.
Trespass to Trees:
The plaintiffs have asserted a claim pursuant to G.L. c. 242, s. 7, captioned Willful trespass to trees, etc; damages. That Section imposes liability upon a person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another . (emphasis added) Other than a recitation of the statutory provision, the plaintiffs offer no legal analysis or argument. Moreover, their brief conclusory statement concerning single rather than multiple damages is without merit. Lastly, this court does not believe that liability is warranted under G.L. c. 242, s. 7 given the circumstances which pertain herein, i.e. where (1) a party has cleared trees in the preparation of a site to which it is holds record title and (2) there were no adverse claims of ownership prior to the time of the clearing.
The plaintiffs have asserted a claim in tort for nuisance owing to the creation of mounds of earth at least 50 feet high and stockpiled them right along the property line between 1238 and 1250 Bedford Street. Putting aside questions of subject matter jurisdiction in the Land Court as regards such a tort claim, this court notes yet again, that the arguments advanced by the plaintiff are bereft of legal citation or analysis. The tort of nuisance is itself nowhere defined or discussed. Even were it otherwise, it is apparent from the trial record that the plaintiffs have failed to provide little beyond vague assertions as to potential damages, unaccompanied by the requisite support, financial or otherwise.
The plaintiffs next argue that Richard Buccheri, Sr. is individually liable for the tortious conduct at issue. In 2008, Richard Buccheri, Sr. served as supervisor of construction activities for Spirit Realty Trust. Plaintiff argues that [c]orporate officers, agents and employees are liable for torts in which they personally participated, regardless of the corporate form. There follow several citations without further explanation. Suffice it to say, that for the reasons discussed supra, this court finds no liability in trespass, trespass to trees or nuisance on the part of Spirit Realty Trust. Accordingly, there can be no liability on the part of its supervisor. It is to be noted, as well, that Mr. Buccheri is not, in any event, a corporate agent, officer or employee.
This court is satisfied that the plaintiffs have met their burden as to the requisite elements of their adverse possession claim. At the same time, this court is of the view that the plaintiffs have failed to meet their burden with regard to their multiple claims for trespass, nuisance and personal liability. This court concludes, therefore, that the plaintiffs have established title to the disputed area [Note 79] predicated upon a successful showing of adverse possession. [Note 80]
Judgment to enter accordingly.
[Note 1] The plaintiff included counts for trespass (Count II) , nuisance (Count III) and a violation of G.L. c. 242, s. 7 (Count IV). In asserting Count II and Count IV, the plaintiff alleges that the violations occurred on property owned by the Owens. However, at the time of the alleged violations, the defendants were the record owners of the property in dispute. This court is not prepared, therefore, to find that the defendants trespassed or illegally cut down trees and other vegetation on property to which they held the record title. As to Count III, alleged nuisance, suffice it to say that the plaintiff simply did not meet its burden of proof at trial with credible testimony.
[Note 2] In his opening statement, defendants counsel offered the following: Much of the evidence that is purported to be presented during the course of this trial will relate to time frames before my clients ever purchased the land. And as such, its going to be very difficult for them to defend the claims that are being alleged here. So it is in many ways going to be a case thats largely dependent upon the veracity of the witnesses.
[Note 3] U/D/T recorded with the Norfolk County Registry of Deeds at Book 13397, Page 292.
[Note 4] Currently used by the Owens as a carport.
[Note 5] Facing the garage from Bedford Street. See Exhibit 15.
[Note 6] Tr. 1-150:2-6.
[Note 7] Tr. 1-255: 17-24.
[Note 8] The stone was completed by the time Mr. Pike built the garage. Tr. 1-133:13-19. See Tr. 1-137:23-24, Tr. 1-138:1-2.
[Note 9] Tr. 1-35:4-8. According to Mr. Owens, the wall started approximately 15 feet from the front of the lean-to or carport and ran approximately 50 feet terminating approximately 5 feet from the sidewalk. See Tr. 1-189:1-16.
[Note 10] The stone wall ran to the left of the curbing which itself was to the left of the driveway. See Exhibit 16.
[Note 11] Tr. 1-146:15-23.
[Note 12] See Tr. 1-70:22-24; Tr. 1-71:1-4.
[Note 13] Tr. 1-170:2-6. Tr.1-38:1-5.
[Note 14] Tr. 1-49:9-11.
[Note 15] Tr. 1-145:20-24, Tr. 1-146:1-3; Tr. 1-148:4-6.
[Note 16] Tr. 1-147:16-18.
[Note 17] Tr. 1-147:11-12.
[Note 18] Tr. 1-147:20-22. Tr:1-178:8-17.
[Note 19] Tr. 1-148:2-10.
[Note 20] Tr. 1-148:16-19.
[Note 21] Tr. 1-176:5-12, 14-24. Tr. 177:1-3, 8-24.
[Note 22] Tr. 1-177:1-4.
[Note 23] Ms. Westberg Pike resided at the 1250 Bedford Street address until 1958 when she went in nurses training. She went home on weekends for the first year and a half. She returned to live at the address in 1964 until the first 6 months of 1967 when she moved to Hanover. She visited with her parents with some frequency thereafter. Tr. 1-123
[Note 24] Tr. 1-104:17-22.
[Note 25] Tr. 1-164:7-10. Tr. 170;14-16. The flagpole can be seen together with the garage and lean-to in Exhibit 20, a photograph dated October 1964. See also, Exhibit 21.
[Note 26] Tr. 1-42:19-24, Tr. 1-43:2-4.
[Note 27] Tr. 1-39:4-16. T. 1-104:7-12.
[Note 28] Tr. 1-104:1-2.
[Note 29] Tr. 2-40:15-22. Tr. 2-51:3-6.
[Note 30] Tr. 1-38:22-24.
[Note 31] Tr. 1-45:15-23. Tr. 1-48: 14-17.
[Note 32] Tr. 1-254:10-11; 9-20.
[Note 33] Tr. 1-45:19-23; Tr. 1-46:18-20; Tr. 1-47:16-21.
[Note 34] Tr. 1-215:13-20.
[Note 35] Tr. 2-209:1-12.
[Note 36] See Exhibit 15 for a depiction of stored items and the area to the left of those items used by the Owens to pass to their backyard.
[Note 37] Tr. 1-49:1-4. Tr. 2-213-2:214. Tr. 2-216:18-24.
[Note 38] Tr. 2-216:6-24.
[Note 39] Tr. 211:4-10.
[Note 40] Tr. 2-215:17-24.
[Note 41] Tr. 1-49:22-24; Tr. 1-50:1-8. Owing to termite infestation the structure was rebuilt in 2003.
[Note 42] Tr. 1-50: 4-8, 15-23.
[Note 43] Tr. 1-51:1-10.
[Note 44] Tr. 1-51:3-11.
[Note 45] Tr. 1-52: 11-14.
[Note 46] Used in conjunction with the above-ground swimming pool in the Owens back yard.
[Note 47] Tr. 152:6-10. See 2-203:4-10. The rock garden was to the side of the swing sets.
[Note 48] See Exhibit 14. The front line of the ten foot buffer can be seen in Exhibit 14 as a virtual extension of the Owens above-ground swimming pool.
[Note 49] Tr. 2-199:23-24; Tr. 2-200:2-24; 2-201:1-10.
[Note 50] Tr. 2-217 :14-17. Tr. 2-218:23-24. R. 2-219: 22-24.
[Note 51] Tr. 2-215:4-16.
[Note 52] The said property has since been conveyed to the current owners David Chu and Rosa Chu as Trustees of the 1238 Bedford Street Realty Trust.
[Note 53] See Tr. 3-10:5-20.
[Note 54] This court concludes that this and other of her testimony was tentative and unreliable. It is unclear that she was even aware of the property line placement until after the property had been placed on the market. In no event was there any foundational testimony to the effect that she was in a position, physically, to observe the existence of the retaining wall next door, built into the bottom of the hill on the Owens side of the property.
[Note 55] Tr. 3-74:13-16. He moved out of the residence in 1989.
[Note 56] Tr. 3-75:5-8.
[Note 57] Tr. 2-174:12-14.
[Note 58] Tr. 2-174; Tr. 2-175. See also, Tr. 2-182:3-11.
[Note 59] The court recognizes that the lean-to had to be replaced in 2003 owing to termite infestation. By that time however, the twenty year prescriptive period had long since passed. The Owens have clearly maintained possession and control of the underlying area during the entire period of their ownership.
[Note 60] See paragraphs 22 & 23 infra. This court credits the testimony indicating that the retaining wall remained in place until cleared by Mr. Buccheri. Moreover, from a purely logical perspective there would be no reason, nor has one been proffered, why the Owens would wish to remove a retaining wall.
[Note 61] Tr. 1-37:18-23. Tr. 1-205:6-10. Tr. 1-209: 1-6. Tr. 1-209; 10-18. Tr. Tr. 1-218: 6-8. Tr. 1-222:14-22.
[Note 62] Tr. 2-224:8-12. As of the date of trial, Mr. Buccheri Sr. was also a trustee of the Spirit Realty Trust.
[Note 63] Tr. 2:224:18-24; Tr. 2-225:1-6.
[Note 64] Tr. 2-236:23-24; Tr. 2-237:1-5.
[Note 65] See Exhibit 4, a photograph showing the leveled area, littered nonetheless, with many large stones.
[Note 66] Mr. Buccheri Junior was operating the machinery that day. Tr. 1-260;20-21.
[Note 67] Tr. 1-259:24; Tr. 1-260:1-9. This court specifically credits Mr. Owens testimony.
[Note 68] See Exhibit 7.
[Note 69] Tr. 1-143:15-17.
[Note 70] Tr. 1-208:4-8.
[Note 71] Mass. Practice Series, Real Estate Law, v. 28, c. 27, § 27.1.
[Note 72] Tr. 1-70:24; Tr. 1-71:1-14; See Exhibit 16 for photograph of curbing.
[Note 73] See Exhibit 2 for the extent of the encroachment by the lean-to.
[Note 74] The court recognizes the difficulty in designating the entire disputed area with absolute precision. This is due in no small measure to the fact that a not insignificant portion of that disputed area has been excavated and cleared of the mound, trees and fieldstone retaining wall by Spirit Realty Trust.
[Note 75] Predicated upon Trial Exhibit 2 [and Exhibit B appended to the Post-Trial Memorandum] the Delano survey, the distance from the rear of the lean-to/carport to the beginning of the 10 foot wetlands buffer zone would approximates 146 linear feet when applying the 1=30 scale of the Delano Survey. But see Tr. 3-216:23-24; Tr. 3- 217:1-4.
[Note 76] The trial record suggests that the actual width of the encroachment is substantially narrower than 8 feet. Such encroachment appears to approximate 3 feet at the street from the spot designated Iron Rod W/Cap (SET). See Tr. 1-193:11-16.
[Note 77] Plaintiffs Post-Trial Brief. P.13. This somewhat limited argument mirrors that advanced by the plaintiffs in their Complaint.
[Note 78] I.e. After the excavation and clearing had taken place.
[Note 79] As described by the parties in their Pre-Trial Memorandum Statement of Agreed Facts and as generally depicted in the Exhibit B appended to the plaintiffs Post-Trial Memorandum.
[Note 80] The proposed findings of fact and rulings of law are hereby allowed to the extent they are consistent herewith. They are otherwise denied.