GIOMBETTI CLUE PROPERTIES, LLC v. JOSEPH DIFRONZO, individually and as TRUSTEE OF E.M.L. REALTY TRUST.

In the case at bar, this court is called upon to resolve claims of adverse possession, or alternatively, claims of prescriptive easement, asserted by both parties concerning their abutting properties at 14 and 14 ½ Mt. Pleasant Street [Note 1] and 16 Mt. Pleasant Street, Milford, Massachusetts. On December 20, 2010, Giombetti Clue Properties, LLC (plaintiff), owner of the properties known and numbered as 14 and 14 ½ Mt. Pleasant Street (collectively, the 14 Property), initiated the instant action by means of a four-count complaint seeking declaratory and injunctive relief against Joseph DiFronzo, as Trustee of E.M.L. Realty Trust (Trust). [Note 2]

The plaintiff seeks a declaration pursuant to G.L. c. 231A and G.L. c. 187, § 2, that it possesses a prescriptive easement over a 410 square foot portion of a paved driveway (Disputed Driveway Area) that encroaches onto the abutting 16 Mt. Pleasant Street property. Pursuant to Counts II-IV of the original verified complaint, the plaintiff sought preliminary injunctive relief, including inter alia, an order of this court requiring Joseph DiFronzo (defendant/DiFronzo) to remove two concrete poles he had erected in the Disputed Driveway Area (Count II). [Note 3] On December 31, 2010, this court issued a preliminary injunction requiring the defendant to remove the concrete poles and barring him from otherwise obstructing the Disputed Driveway Area during the pendency of this litigation. [Note 4] The plaintiff thereafter filed an Amended Verified Complaint naming Joseph DiFronzo individually as a defendant in the instant action. [Note 5]

On March 1, 2011, Joseph DiFronzo, individually and as trustee of the E.M.L. Realty Trust, filed an answer together with a counterclaim pursuant to G.L. c. 260, § 21. The defendant, owner of the abutting property known and numbered as 16 Mt. Pleasant Street, alleges that he has acquired title by adverse possession to a 333 square foot parcel enclosed by a stockade fence (the Disputed Fence Area), which encroaches approximately 5-6 feet into the 14 Property.

On October 1, 2013, the first day of trial, the parties submitted to this court a Statement of Uncontested Facts, along with a joint motion seeking to amend the complaint and counterclaim pursuant to Mass. R. Civ. P. 15(a). [Note 6] That Motion has been Allowed. The plaintiff’s Second Amended Verified Complaint added a claim in the alternative for adverse possession, pursuant to G.L. c. 260, § 21, concerning the 410 square foot Disputed Driveway Area. For his part, the defendant’s Amended Answer and Amended Counterclaim added a counterclaim for a prescriptive easement over the 333 square foot Disputed Fence Area. This court accepted the filings on the date submitted.

For the reasons that follow, this court concludes that the plaintiff has failed to demonstrate adverse possession of the Disputed Driveway Area. Having failed to satisfactorily meet the exclusivity requirement that is a prerequisite to establishing adverse possession, the plaintiff has nonetheless demonstrated that a prescriptive easement exists over the Disputed Driveway Area. Notwithstanding, the scope of the prescriptive easement over the Disputed Driveway Area is not coextensive with the use currently being made by the plaintiff of the said Area. For his part, the defendant has failed to meet his burden of proving adverse possession, or alternatively a prescriptive easement, with regard to the Disputed Fence Area.

BACKGROUND

A three-day trial was held on October 1-2, 2013 and on May 30, 2014, [Note 7] at which time a stenographer was sworn to take the evidence of the following witnesses: Patricia Colleary Glennon, Thomas Glennon, Robert Giombetti, Deborah Lee Colleary, Edward Giombetti, Kevin Clue, Robert Duhig, Joseph DiFronzo, and Patricia Ridlon. Sixteen (16) exhibits were admitted into evidence and are incorporated by reference into this decision for purposes of appeal. On the first day of trial, the parties submitted a statement of thirty-two (32) uncontested facts to this court, which are included below in the findings of facts to the extent deemed relevant. Proposed findings of fact were submitted post-trial by both parties and are incorporated herein to the extent that they are consistent with this decision; they are otherwise denied. The defendant twice argued a Motion for a Directed Verdict. This court denied the first motion while the second was taken under advisement. It is now denied.

On all the credible testimony, exhibits, statement of uncontested facts, and other evidence properly introduced at trial or otherwise before this court, and the reasonable inferences drawn therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, this court finds as follows:

Plaintiff’s Record Title to the 14 Property

1. Giombetti Clue Properties, LLC (plaintiff) acquired the land and buildings known and numbered as 14 Mt. Pleasant Street and 14 ½ Mt. Pleasant Street, Milford, Massachusetts. Plaintiff’s title is derived from a deed dated September 11, 2006 and recorded with the Worcester District Registry of Deeds (Registry) at Book 39753, Page 201 from Kevin Clue (Clue), Robert Giombetti, and Edward Giombetti (collectively, the Giombettis). [Note 8] The Giombettis and Clue, managers of the plaintiff LLC, had previously purchased the 14 Property from Craig and Antoniea Johnson by deed dated October 30, 2003 and recorded with the Registry at Book 32101, Page 50. [Note 9]

2. The Ridlon-Johnson family owned the 14 Property during the period from 1996 to 2003. In 1996, Craig S. Johnson and Patricia M. Ridlon acquired the 14 Property from Deborah Colleary, Patricia Glennon, and Elvira Colleary [Note 10] by deed dated November 27, 1996 and recorded with the Registry at Book 18434, Page 147. [Note 11] Thereafter, Craig Johnson and Patricia Ridlon conveyed the 14 Property to Craig and Antoniea Johnson by deed dated June 14, 2000 and recorded with the Registry at Book 22935, Page 25. [Note 12]

3. Patricia Glennon and Deborah Colleary are members of the DeFazio family. Various members of the DeFazio family owned the 14 Property from 1906 to 1996. [Note 13]

Defendant’s Record Title to the 16 Property

4. The defendant holds title to the property known and numbered as 16 Mt. Pleasant Street (16 Property) by virtue of a deed dated October 20, 2005, recorded with the Registry in Book 38512, Page 9. [Note 14] At various time since 1980, either DiFronzo individually or the defendant E.M.L. Realty Trust, Joseph DiFronzo, Trustee, under Declaration of Trust recorded with the Registry in Book 21148, Page 60, [Note 15] has held title to the 16 Property.

5. Until the defendant purchased the 16 Property, none of the owners of the 16 Property had resided in the dwelling. The defendant did not live at the 16 Property for the “first couple of years after [he] bought the place.” [Note 16] He has otherwise lived there continuously, save for one six-month period when he lived at a location on Cape Cod. [Note 17] The 16 Property is a multi-family, three-story home with three separate units. [Note 18] The defendant resides in one unit, while renting out the others.

Prior Owners of the 14 Property: The DeFazio Family

6. The 14 and 16 Properties directly abut one another. Located on the 14 Property are two residential buildings: a) a single-family, three-story dwelling located toward the front of the parcel (the 14 Dwelling); and b) a two-family, two-and-a-half story home with a street address of 14 ½ Mt. Pleasant Street (the 14 ½ Dwelling), located behind the 14 Dwelling. This court refers to the land and dwellings at 14 and 14 ½ Mt. Pleasant Street collectively as the “14 Property” for purposes of this decision. [Note 19]

7. Patricia Glennon (Mrs. Glennon) lived on the second floor of the 14 ½ Dwelling with her family continuously from her birth in 1944 through 1965, with the exception of a period during which she attended nursing school in Boston. [Note 20] Mrs. Glennon’s aunts and uncle—Mary, Lena, and Joseph DeFazio—lived on the first floor of the 14 ½ Dwelling for their entire lives. From 1966 to 1970, Mrs. Glennon lived at the 14 Dwelling with her husband. When the Glennons moved to another Milford address in 1970, Mrs. Glennon continued to visit her family at the 14 Property one to two times per week until 1996.

8. Deborah Colleary (Colleary), sister of Mrs. Glennon, was born in 1950 and lived at the 14 ½ Dwelling from 1950 through 1996, save for two years when she attended college in Worcester. [Note 21]

9. Thomas Glennon (Mr. Glennon) began visiting the 14 Property weekly in the late 1950s, when he started dating Patricia Glennon. He lived at the 14 Dwelling from 1966 to 1970. Mr. Glennon returned weekly to visit the 14 Property after moving to another Milford residence with his wife in 1970.

10. Mrs. Glennon and Ms. Colleary’s grandfather built the 14 and 14 ½ Dwellings in the early 1900s. The DeFazio family used the 14 Dwelling primarily as a rental property, particularly after the Glennons moved out in 1970.

11. A survey entitled “Plan of Land in Milford, MA. Owner: Giombetti Clue Properties, LLC,” dated September 30, 2013 and prepared by Guerriere & Halnon, Inc. depicts the boundary line as dividing a paved Driveway located between the 14 and the 16 Dwellings (the 2013 Plan). [Note 22] The current Driveway spans the entire 15.39 foot width between the houses. The distance from the 14 Dwelling’s front corner to the boundary line is approximately 9 feet. The distance from the boundary line to the 16 Dwelling’s front corner is slightly greater than 6 feet. The boundary line proceeds at an angle, as the distance between the 14 Dwelling and the boundary line increases to 10 feet when proceeding down the Driveway. A 410 square foot strip of the paved Driveway encroaches onto the 16 Property and is the subject of the plaintiff’s claims in the instant action. [Note 23] This 410 square foot strip forms the Disputed Driveway Area. A copy of the 2013 Survey (Trial Exhibit 5) is attached to this decision as “Exhibit A.”

12. The Driveway enters from Mt. Pleasant Street and extends rearward toward the 14 ½ Dwelling. It opens to a paved parking area (Parking Area), situated to the immediate right of the 14 ½ Dwelling [Note 24] and behind the 16 Property. The Parking Area is shown as the area labeled “BIT. CONC.” to the right of the 14 ½ Dwelling on Exhibit 5. The Parking Area is part of the 14 Property and is utilized by the tenants of the 14 ½ Dwelling. The Driveway provides the only vehicular access from Mt. Pleasant Street to the 14 ½ Dwelling and to the Parking Area.

13. A concrete walkway, leading from the front door of the 16 Dwelling, opens onto the front portion of the Disputed Driveway Area which leads to the sidewalk. To get from the 16 Dwelling’s front door and walkway to the sidewalk and street, one must traverse the Disputed Driveway Area.

The Disputed Driveway Area Prior to 1999

14. Due to the changing landscape of the Disputed Driveway Area from 1955 to the present-day, this court will briefly describe the area situated between the 14 and 16 Dwellings as it has evolved during this time period.

Prior to 1999, it is undisputed that a driveway had existed between the 14 and 16 Properties for decades (the Original Driveway), though it did not span the full 15.39 foot width between the dwellings as it does today owing to the paving in 1999. Moreover, prior to 1999 the Original Driveway had not extended into the present-day Parking Area. In 1999, the successor-in-interest to the DeFazio Family, Patricia Ridlon (Ridlon), paved over the Disputed Driveway Area in its entirety as part of her driveway expansion project (the 1999 Paving).

The Disputed Driveway Area, though now completely paved over, formerly consisted, in part, of an encroaching portion of the Original Driveway, together with a narrow strip adjacent to the 16 Property, which ran the length of the Original Driveway. Together, these formed the front portion of the Disputed Driveway Area. At the end of the Original Driveway, there was a grassy area (Grassy Area) located to the front and somewhat to the right of the 14 ½ Dwelling. A portion of the Grassy Area encroached into the Disputed Driveway Area. That encroaching portion of the Grassy Area formed the rear portion of the Disputed Driveway Area.

Front Portion of the Disputed Driveway Area

15. Since at least 1955, the Original Driveway had a gravel surface. [Note 25] Between 1964 and 1966, Joseph DeFazio (DeFazio), [Note 26] who lived in the first floor of the 14 ½ Dwelling, had the Original Driveway paved with asphalt. [Note 27] Notwithstanding the paving, the dimensions of the Original Driveway remained unchanged. [Note 28] When this court uses the term “Original Driveway,” it is referring to the driveway that existed—first as gravel, then as pavement—from 1955 until 1999, at which time it was expanded by Ridlon. As noted supra, a portion of the Original Driveway encroached into the Disputed Driveway Area, as did the entirety of the adjacent strip between the Original Driveway and the 16 Property.

The Glennons and Colleary (collectively, the DeFazio family witnesses) testified that, to their knowledge, DeFazio did not seek permission from anyone to pave the Original Driveway. [Note 29]

16. The far end [Note 30] of the Original Driveway terminated at approximately the edge of the concrete steps just beyond the 14 Dwelling. [Note 31] The testimony of Mr. Glennon supports this conclusion, as follows:

House number 14, in the rear there are two steps that go up to the – actually run right along the back to the building, and that is approximately where the line of hot top [Original Driveway] ended. [Note 32]

17. Though disputed at trial, this court finds as a matter of fact that the Original Driveway encroached onto the 16 Property, i.e. into the Disputed Driveway Area. [Note 33] A 1996 Plot Plan depicts the distance from the front corner of the 14 Dwelling to the boundary line of the 16 Property as approximately 9 linear feet. The Original Driveway is depicted as being wider than the approximate 9 feet, as it encroaches onto the 16 Property and bisects the boundary line at a distance greater than the approximate 9 feet. The same Plot Plan also depicts a triangular encroachment of the Original Driveway closest to Mt. Pleasant Street, which is supported by Colleary’s credible testimony. She testified that the Original Driveway began at Mt. Pleasant Street on the inside of the concrete poles depicted in Exhibit 12A, which were located on the 16 Property over the boundary line. [Note 34]

18. In the encroaching adjacent strip between the Original Driveway and the 16 Property, the area from the street to the front corner of the 16 Dwelling was paved. Beginning at the front corner of the 16 Dwelling, an approximate 3 foot wide grass strip ran adjacent to the Original Driveway for the length of the house (Grass Strip). [Note 35] This entire adjacent area, which ran the length of the Original Driveway, was paved over in 1999 and now comprises part of the Disputed Driveway Area.

19. Abutting the Original Driveway on 14 Dwelling side, an approximate 1.5 foot wide grass strip ran adjacent to the said Driveway, extending just beyond the 14 Dwelling. [Note 36] Mrs. Glennon and Ms. Colleary testified that both grass strips were in existence for as long as they could remember. [Note 37] The grass strips were there in 1980 when the defendant purchased the 16 Property. [Note 38] Ridlon paved over both grass strips in 1999, together with the Original Driveway.

20. Exhibits 6D through 6G are photographs taken between 1980 and 1990. They depict a motorcycle [Note 39] parked on the Original Driveway. The pictures also show the 16 Dwelling, the 3 foot Grass Strip alongside the house, and the Original Driveway itself bordering on the edge of the Grass Strip. These photographs further support the notion that the said Driveway encroached several feet into the 16 Property. The Original Driveway is shown extending over toward the 16 Property to a point 3 feet from the 16 Dwelling and well over the boundary line. [Note 40]

The Rear Portion of the Disputed Driveway Area (the encroaching portion of the former Grassy Area)

21. The Original Driveway terminated at a Grassy Area located in front of and to the right side of the 14 ½ Dwelling. [Note 41] Colleary testified that the Grassy Area extended to where a present-day stockade fence effectively divides defendant’s 16 Property from the plaintiff’s 14 Property. [Note 42] Hedges previously stood where the stockade fence now stands. [Note 43] The Grassy Area was paved over as part of Ridlon’s paving project in 1999. As noted supra, a portion of that Grassy Area encroached into the 16 Property and as a consequence, comprised the rear portion of the Disputed Driveway Area.

22. Visible on exhibit 14G is an orange survey marker indicating the boundary line between the 14 and 16 Properties in what was once the Grassy Area. When this area consisted of grass, however, nothing clearly delineated the boundary line. [Note 44] When asked how far the grass extended behind the 16 Property—in other words, into the present-day Parking Area which abuts the 14 ½ Dwelling—Mr. Glennon observed, as follows:

At the end of the gravel [Original Driveway], the grass kind of blended in one piece into the other[;] one yard went into the next. The grass never really stopped at any point. There was no barrier; there was no stopping; it just grew one into the other. [Note 45]

DeFazio Family’s Use of Disputed Driveway Area from the 1950s-96

23. Although there is evidence that a driveway had existed between the properties for decades, this court is unable to conclude from the trial record that any period of adverse or prescriptive use commenced prior to the mid-to-late 1950s. [Note 46]

24. The DeFazios used the Original Driveway for daily parking, as well as for daily foot and vehicular access to the 14 ½ Dwelling, for as far back as the DeFazio family members could recall. [Note 47] While the record supports a finding that the DeFazios regularly parked toward the end of the Original Driveway proper and that they parked, at times, on the Grassy Area in front of the 14 ½ Dwelling, this court is unable to conclude that they consistently and continuously parked in the said Grassy Area. [Note 48]

25. Numerous DeFazio family members owned vehicles, including the Glennons, Colleary, Dennis Colleary, and Billy Colleary. [Note 49] Mrs. Glennon testified in this regard, as follows:

There were a lot of family members living there though the years. So when Tom [Glennon] and I lived there, we each had a car to go to work, and my sister had a car, my brother had a car, my father had a car. So, some people parked in the [Original D]riveway, some people parked across the street [in the empty lot that is now the Registry of Motor Vehicles], some parked in Cattani’s [nearby Oil Company] yard. [Note 50] Two cars fit in the Original Driveway when parked tandem style.

Tenants residing in the 14 Dwelling were also afforded priority to park in the Original Driveway in later years, particularly so after the Registry was built across the street sometime between 1980 and 1990, since parking was no longer available at that site. Both Robert Duhig (Duhig) and his wife parked in the Original Driveway while they were tenants at the 14 Dwelling from 1980 to 1990.

26. DeFazio maintained the Original Driveway from the 1950s until his death in 1993. In addition to having the said Driveway paved, DeFazio swept it, shoveled snow in the wintertime, regularly hosed it down, and paid for any maintenance work that had to be done. [Note 51] After DeFazio’s death, Mr. Glennon, his sons, and a neighbor the family hired, continued to maintain it. [Note 52] Duhig also shoveled the Original Driveway while living at the 14 Dwelling.

27. The property owners and tenants at number 16 did not maintain the Original Driveway, nor did they park on or otherwise utilize it for vehicular access to their residence. Sometime after 1980, the defendant built a driveway on the opposite side [Note 53] of the 16 Dwelling. The court credits the defendant’s testimony that he shoveled the area leading from the 16 House’s front walkway over the Disputed Driveway Area to Mt. Pleasant Street, so that his “tenants could get out onto the sidewalk or out onto the street.” [Note 54]

28. The DeFazios and their tenants owned large vehicles, including a pickup truck and a van. At the same time, the space between the 14 and 16 Dwellings was a narrow one. [Note 55] As a consequence, they parked closer to the right side of the Original Driveway—toward the 16 Dwelling—so that drivers and passengers had sufficient room to open their car doors and alight from their vehicles on both sides. [Note 56]

29. DeFazio family members utilized the encroaching area between the Original Driveway and the 16 property, including the 3 foot Grass Strip, for daily foot access to the 14 ½ Dwelling when vehicles were parked in the said Driveway. [Note 57]

30. DeFazio maintained the Grass Strip, which was directly adjacent to the 16 Dwelling, by seeding, fertilizing, watering, and regularly mowing it. Both Duhig and the defendant also maintained the Grass Strip after 1980. Although Duhig testified he “could not remember” seeing DeFazio maintain the Grass Strip, the defendant acknowledged at trial that DeFazio did so. [Note 58]

31. The DeFazio family never sought permission from any 16 Property owner or tenant to utilize any portion of what is now the Disputed Driveway Area. The defendant acknowledged as much at trial. [Note 59] No one from the 16 Property sought to prevent the DeFazios’ use or asserted ownership over the said Area. The DeFazio family witnesses were unaware of the existence of any encroachment until the commencement of this litigation.

32. The Grassy Area commenced where the Original Driveway terminated. A portion of the Grassy Area encroached onto the 16 Property. The encroaching portion is included within the Disputed Driveway Area. DeFazio regularly maintained the Grassy Area by mowing, fertilizing, and weeding it. [Note 60] The DeFazios would sporadically drive over the Grassy Area to the front of the 14 ½ Dwelling as, for example, when moving a car into or out of storage in the shed formerly located to the right of the 14 ½ Dwelling. [Note 61] The DeFazios, after parking their vehicles on the Original Driveway, consistently used the Grassy Area to gain foot access to the 14 ½ Dwelling. The Grassy Area provided direct pedestrian access to the said Dwelling from the Original Driveway.

33. The 16 Property owners and tenants did not maintain any portion of the said Grassy Area, nor did they seek to prevent or limit the DeFazios’ use of the same. The defendant never asserted ownership over the Grassy Area. On the contrary, he stated that: “T[he Grassy Area] was not my property.” [Note 62]

Ridlon-Johnson Ownership of the 14 Property from 1996 to 2003

34. The Ridlon-Johnson family, the DeFazios’ successors-in-interest, owned the 14 Property from 1996 to 2003. [Note 63] Prior to 1999, they also parked two cars, tandem-style in the Original Driveway. [Note 64] The defendant acknowledged that they utilized the Original Driveway in the same manner as had the DeFazios. [Note 65]

35. Ridlon, who resided at the 14 ½ Dwelling, testified that when turning into the Original Driveway area from Mt. Pleasant Street, “there was a little hump you had to go over, and then you hit that piece of stone that belonged to his [the defendant’s] stairs” [Note 66] at the top of the Disputed Driveway area. Ridlon wanted to level out the stone “lip.” She therefore sought the defendant’s permission [Note 67] to widen the Original Driveway and extend the paved area rearward past the 14 ½ Dwelling, into the area that has been herein designated as the Parking Area. The defendant gave his verbal assent to this arrangement. [Note 68] Thereafter, Ridlon widened the paved Original Driveway to cover the entire 15.39 foot width between the 14 and 16 Dwellings. She additionally extended the paved area down into (and in fact, created) the 14 ½ Parking Area. The 1999 Paving also served to level out the stone “lip.” Prior to the 1999 Paving, Ridlon believed that the paved Original Driveway belonged solely to her family. Until the time of the paving, she maintained the said Driveway but not the Grass Strip that existed between the Original Driveway and the 16 Dwelling. [Note 69]

2003-Present

36. This court credits the testimony of the Giombettis and Clue that they did not meet the defendant until after the closing on the 14 Property in 2003. [Note 70] In 2004 or 2005, the defendant informed Robert Giombetti that part of the current Driveway encroached onto the 16 Property. [Note 71] Since purchasing the 14 Property in 2003, the plaintiff has regularly maintained the said Driveway by plowing, sweeping, and sanding it.

37. In early 2010, the defendant had the 16 Property surveyed. [Note 72] Orange survey marks were spray-painted on the boundary lines and show that the current Driveway encroaches onto the 16 Property by at least several feet. [Note 73] On or about November 27, 2010, the defendant installed two concrete poles at the beginning of the Disputed Driveway Area just inside the orange survey marks, thereby impeding the ability of plaintiff and its tenants to enter and exit the Driveway with their vehicles. [Note 74] On December 31, 2010, owing in no small measure to the need to assure emergency access to the 14 ½ Dwelling, this court issued a preliminary injunction requiring the removal of the poles.

The Disputed Fence Area

38. A 6 foot high stockade fence (Stockade Fence) installed by the defendant encloses the rear of the 16 Property, separating it from the 14 Property. [Note 75] The Stockade Fence encroaches into the plaintiff’s property approximately 5 to 6 feet beyond the 16 Property’s rear boundary line. The Stockade Fence encloses approximately 333 square feet of the 14 Property (the Disputed Fence Area). [Note 76] The Disputed Fence Area forms the basis of the defendant’s claims in the instant action.

38. At the time that the DeFazios owned the 14 Property, a row of privet hedges (the Hedgerow) was located near, and parallel to, the 16 Property rear boundary line. The Hedgerow was thick—approximately 2 to 3 feet wide toward the base and approximately 4 feet wide at the top. It stood approximately 6 feet high. [Note 77] At its corner closest to the 14 Property, the Hedgerow connected to a “smaller hedge that cut . . . down through the lawn and split the property.” [Note 78] DeFazio planted the hedges as a “privacy screen” between the 14 and 16 Properties prior to the 1950s. [Note 79]

39. The defendant acknowledged that he “never installed any hedges” and when he moved in [Note 80] the “whole side [between the 14 and 16 Properties along the side and rear of the 16 Property] was enclosed with bushes.” [Note 81]

40. During the DeFazio family’s tenure at the 14 Property, a line of field stones—roughly 8 to 10 inches high—extended the length of the rear boundary between the 14 and 16 Properties. This court finds that more likely than not, the line of stones was located on the 16 side of the Hedgerow, near and parallel to the rear boundary line. [Note 82]

41. At some point after acquiring the 16 Property in 1980, the defendant installed a chain link fence up against the Hedgerow on the 16 side. He could not recall with specificity when he installed the chain link fence. [Note 83] Edward Giombetti testified that when he acquired the 14 Property in 2003, there were remnants of a dilapidated chain link fence and several stanchions located within a foot or so of the boundary line. [Note 84]

42. DeFazio maintained both sides of the Hedgerow throughout his life, using a ladder to do so. [Note 85] The defendant acknowledged that DeFazio maintained the hedges. This court does not credit his assertions that he shared maintenance of the Hedgerow with DeFazio from 1980 onward. The defendant never asserted ownership of the Hedgerow. When asked if he had ever told DeFazio not to maintain the Hedgerow, the defendant responded: “No. I thought he was doing me a favor.” [Note 86] Any Hedgerow maintenance by the defendant prior to 1996 was, at best, sporadic. Credible testimony on the record supports this conclusion. The DeFazio family witnesses testified that they never observed 16 Property owners or tenants, including the defendant, maintaining the Hedgerow. Once the DeFazios moved out in 1996, Ridlon did not maintain the Hedgerow.

43. The defendant removed the hedges and chain link fence at some unknown point before 2003. [Note 87] No fences or hedges separated the properties when the Giombettis and Clue purchased the 14 Property in 2003. Rather, there was a 5 to 7 foot area of “scrubby grass” between the edge of their Parking Area and the pavement of the defendant’s driveway area behind the 16 House.

Thereafter, in 2004 or 2005, the defendant approached Robert Giombetti and asked permission to install a fence “a foot or two” into the 14 Property. Giombetti assented. [Note 88] Subsequently, the defendant installed the 6 foot Stockade Fence and paved over the area enclosed by the said Stockade Fence, forming the 333 square foot Disputed Fence Area. [Note 89]

44. The location of the former Hedgerow relative to both the current Stockade Fence and the boundary line is a matter of some dispute. The plaintiff maintains that the Hedgerow stood on the 14 Property directly adjacent to the line of stones, the latter of which it alleges was located on the rear boundary line. [Note 90] Thus, the plaintiff maintains the current Stockade Fence was erected several feet further into the 14 Property than the original Hedgerow, which allegedly ran closer to the rear boundary line. Mrs. Glennon visited the 14 Property prior to trial and testified regarding the location of the former Hedgerow as it relates to the existing Stockade Fence, as follows:

Q: Where were the hedges in comparison to where the current [Stockade F]ence is located?

A: The hedges were on – now with the 16, closer to the [16] Property . . .

Q: Were they closer to the [16] House than the [Stockade F]ence is today?

A: Oh yes. [Note 91]

The defendant, however, alleges that he erected the Stockade Fence in the same location as the former Hedgerow stood.

Ridlon paved the Parking Area on the 14 Property side of the Hedgerow in 1999. Trial Exhibit 6H, which depicts both the Hedgerow and the newly paved Parking Area, appears to show the Hedgerow located right up against the pavement of the 14 Property Parking Area. Moreover, Robert Giombetti testified—when describing the location of the current Stockade Fence—as follows:

Q: Can you explain how the [Stockade F]ence goes around the [16] Property? . . .

A: . . .[Y]ou can see portions. You can see a portion of the fence [in Exhibit 15A] coming down here [along the Driveway]. . . .

Q: And that’s along the Driveway, correct?

A: That’s correct. . . . And then [the Stockade Fence] angles in a slight bit, and then it runs along the paved section of our property [the Parking Area], 14, which is on the other side of that fence.” [Note 92]

Lastly, Exhibits 12D and 15E also depict the rear line of the Stockade Fence as located up against the paved Parking Area. [Note 93] It is undisputed that the location of the Hedgerow has never changed. This court finds therefore that, more likely than not, the defendant placed the Stockade Fence in the same location as the former Hedgerow. In other words, both were located up against the pavement of the 14 Property Parking Area. The Fence, however, is only several inches wide, while the Hedgerow was roughly 4 feet wide at its top and comprised most of the Disputed Fence Area.

In sum, this court finds that the outer edge of the 4 foot wide Hedgerow was located approximately 5 to 6 feet beyond and parallel to, the rear boundary line dividing the 14 and 16 Properties. This left approximately 1 to 2 feet of space in the Disputed Fence Area between the 16 Property rear boundary line and the 4 foot wide area that would have been occupied by the former Hedgerow. The Stockade Fence is presently situated along the line of the outer edge of that former Hedgerow (i.e. toward the 14 ½ Dwelling). Thus, the Stockade Fence encompasses the location of the former 4 foot wide Hedgerow and the additional approximately 1 to 2 feet of space in the Disputed Fence Area that was enclosed by the Hedgerow. For reasons discussed infra, this court finds that the defendant has not met his burden of proving adverse possession or prescriptive rights over any portion of the Disputed Fence Area.

DISCUSSION

Adverse Possession Elements

It is well-established in the Commonwealth that “[t]itle 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); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). Such use must be continuous for the statutory period. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). “The burden of proving adverse possession is on the person claiming title thereby and extends to all of the necessary elements of such possession.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003) (internal citations omitted). “If any of these elements is left in doubt, the claimant cannot prevail.” Mendonca, 354 Mass. at 326; see also Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (noting that adverse possession requirements are strictly construed). Only in the instance of clear proof will the true owner be barred of his right to the property. Cook v. Babcock, 65 Mass. 206 , 210 (1853). “[T]he determination whether a set of activities is sufficient to support a claim of adverse possession is inherently fact- specific.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

In the context of adverse possession, the requirement of actual use refers to the control and dominion of the land at issue in derogation of the true owner’s rights. See Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). In most cases, the possessor must “make ‘changes upon the land’ that constitute ‘such a control and dominion over the premises so 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 LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). 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, 301 Mass. at 491.

The purpose of the open and notorious element is to afford a landowner a “fair chance at protecting himself.” Foot v. Bauman, 333 Mass. 214 , 218 (1955). To be open, the “use must be made without attempted concealment.” Lawrence v. Town of Concord, 439 Mass. 416 , 420 (2003). To be notorious, such use “must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Actual knowledge is not required, see id., provided the landowner can be deemed to have constructive notice of the adverse use. See Lawrence, 439 Mass. at 421-22.

The essence of adverse or nonpermissive use is “lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000), citing Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id. at 145. “Where use of the land is actual, open, and exclusive for a period of twenty years, the nonpermissiveness of the use may be inferred.” Id. at 147.

The exclusivity element requires that an adverse possessor’s use constitute a “disseisin of the record owner.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To this extent, the possessor must have excluded “not only the owner but . . . all third persons to the extent that the owner would have excluded them.” Id. What constitutes exclusive possession depends upon the type of land at issue and usage in the surrounding area. Thus, “[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. Activities of “enclosure or cultivation are evidence of exclusive possession.” Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

Lastly, any adverse use must have been continuous for the requisite twenty-year period. See Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968); G.L. c. 260, § 22 (stating that an “action for recovery of land shall be commenced . . . within twenty years after the right of action . . . accrued. . . .”). The theory behind this statute of limitations 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.” V. 28 Eno & Hovey, Mass Practice § 27.1 (4th ed. 2004). The required twenty-year period may be satisfied through the doctrine of “tacking,” see Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961), which permits a claimant to tack onto “periods of successive adverse use by different persons provided there is privity between the persons making the successive uses.” Ryan v. Stavros, 348 Mass. 251 , 264 (1964). There is privity between a grantor and a grantee. See Leonard v. Leonard, 89 Mass. (7 Allen) 277, 281 (1863). Continuous use over the twenty-year period does not mean constant use. See Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). However, “[a]cts of possession which are ‘few, intermittent, and equivocal’ [are insufficient to] constitute adverse possession.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992).

Prescriptive Easement Elements

Pursuant to G.L. c. 187, § 2, “[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.” See G.L. c. 187, § 2; see also Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007) (stating that proof of a prescriptive easement requires use that is: “(a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.”).

The elements of a prescriptive easement are the same as those necessary for adverse possession, save for the exclusivity requirement. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). As with adverse possession, the burden of proving each element of a prescriptive easement rests entirely on the claimant. Ivons-Nispel, Inc. v. Lowe, 346 Mass. 760 , 762 (1964). Failure to prove any one element defeats a claim for a prescriptive easement. See White v. Hartigan, 464 Mass. 400 , 413 (2013).

The Disputed Driveway Area

(a) Plaintiff May Rely on Twenty Years of Uninterrupted, Adverse or Prescriptive Use by the DeFazios

The defendant argues that the plaintiff’s claims for adverse possession or prescriptive easement fail as a matter of law because Ridlon, a predecessor-in-interest of the plaintiff, sought permission to pave the Disputed Driveway Area after 1996. [Note 94] This act, he argues, interrupted the continuous possession. In this regard, he asserts that the plaintiff is unable to effectively circumvent this break by tacking its own adverse use onto that of the DeFazios in order to reach twenty years. He argues therefore, that the requisite privity is lacking. However, the plaintiff’s claims are not grounded in tacking. [Note 95] Rather, the plaintiff argues that the DeFazios’ historic use of the Disputed Driveway Area for an uninterrupted, twenty-year period established either adverse possession or a prescriptive easement appurtenant to the 14 Property at least “by 1980, when [the defendant] purchased the 16 Property, [and] long before the Ridlon-Johnsons’ ownership of the 14 Property.” [Note 96]

“[W]here an occupant of land has had undisturbed adverse possession for the period required to bar an action by the real owner for its recovery, the occupant has acquired good title.” Daley v. Daley, 308 Mass. 293 , 305 (1941), citing Mulligan v. Hilton, 305 Mass. 5 , 10 (1940). “… [A]lthough the [twenty-year] time period is often described as the time necessary to achieve title by adverse possession, it actually is a limitations period, after which the true owner may not recover possession of the land from the adverse possessor.” In re Colarusso, 382 F.3d 51, 58-59 (2004), citing Lawrence v. Town of Concord, 439 Mass. 416 (2003). However, “[t]he evidence of exclusive occupation by prior owners must be sufficient to show that all required elements of an adverse possession claim were satisfied throughout the 20-year period.” V. 28 Hovey et. al, Mass Practice § 27.6 (2013-14 Supp.), citing Conte v. Marine Lumber Co., 66 Mass. App. Ct. 505 , 508-11 (2006) (plaintiff’s adverse possession claim based on twenty-years of adverse use by prior owner from 1939-61 failed because plaintiff could not establish all requisite elements during the alleged statutory holding period). To the extent the plaintiff alternatively claims a prescriptive easement over the Disputed Driveway Area, prescriptive rights ripen after twenty years, provided the other statutory requirements are satisfied. See G.L. c. 187, § 2; see Hayes v. Dorr, 20 LCR 181 (2012) (holding subject property benefited from appurtenant prescriptive easement for foot access based on historic use of right-of-way by a prior owner from 1927-64).

For the reasons discussed below, though the plaintiff herein has failed to demonstrate adverse possession, it has nonetheless demonstrated that the DeFazios’ utilized the Disputed Driveway Area for an uninterrupted twenty-year period in a manner sufficient to establish prescriptive use. As a consequence, an examination of the tacking issue becomes unnecessary. The burden then lies with the defendant to prove that any easement rights gained initially by the DeFazios were subsequently lost, as for example, through abandonment. [Note 97] This court is satisfied that there is no such evidence on the trial record that would establish the loss of any prescriptive easement.

(b) Plaintiff’s Adverse Possession Claim

The plaintiff has failed to demonstrate that the entirety of the Disputed Driveway Area has been used on a purely exclusive basis. The 16 Property is a three-story, multi- family dwelling having three residential units. The front walkway of that Property opens onto the beginning of the Disputed Driveway Area. To reach the sidewalk and to access Mt. Pleasant Street from the front door and walkway of the 16 Property, one must traverse the Disputed Driveway Area. This court reasonably infers that the owners and tenants residing within the 16 Dwelling wishing to exit through the front door of their building were obliged, given the configuration of the property, to utilize their front walkway which, in turn, crossed over a portion of the Disputed Driveway Area to the sidewalk and street in front of the house. [Note 98] This conclusion gains support from the following testimony of the defendant:

…[M]y front walkway from the 16 house, my front walkway ends on the driveway. So, mostly in the wintertime I would shovel that part of the driveway out so my tenants could get out onto the sidewalk or out onto the street. [Note 99]

Predicated upon the foregoing, this court is satisfied that the use of the Disputed Driveway Area has not been exclusive to the owners and residents of the 14 and 14 ½ Dwellings. The front portion of the Disputed Driveway Area, i.e. close to the sidewalk and to Mt. Pleasant Street, provided the 16 Dwelling tenants with the sole means of access from their front door to the sidewalk and street. “If any of these elements [of adverse possession] is left in doubt, the claimant cannot prevail.” Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968); see also Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

(c) Plaintiff’s Prescriptive Easement Claim

The plaintiff has, however, satisfactorily demonstrated the existence of a prescriptive easement with regard to the Disputed Driveway Area for both vehicular and pedestrian access to the 14 ½ Dwelling based on the DeFazios’ open and notorious, adverse, and continuous use for at least twenty-years.

The trial record indicates that the DeFazios utilized the Disputed Driveway Area continuously over a period far in excess of twenty-years. See G.L. c 187, § 2. The period of use informing this court’s decision commences in the mid-1950s and spans the period, without interruption, of the DeFazios’ ownership ending in 1996. From the mid-1950s through 1996, the DeFazios used the Disputed Driveway Area for daily vehicular parking. Thus, they would drive their vehicles to the end of the Original Driveway, where they would park up to two vehicles tandem-style. See Boutin v. Perrault, 343 Mass. 329 , 331 (1961) (noting that where the driveway provided the only access from the plaintiff’s house to the street, the court could infer that it had “been so used since his house was built.”). The rear portion of the Disputed Driveway Area, i.e. the encroaching portion of the Grassy Area, was used to provide foot access from the end of the Driveway to the 14 ½ Dwelling in the rear.

Additionally, because of the relatively narrow space between the two houses, the DeFazios regularly passed by foot over the encroaching area directly abutting the 16 Dwelling adjacent to the Original Driveway (including the 3 foot Grass Strip). They utilized this abutting portion to maneuver around open car doors when entering and exiting vehicles and also to gain foot access to the 14 ½ Dwelling when cars were parked in the Original Driveway. [Note 100] Moreover, DeFazio maintained the entire Disputed Driveway Area continuously and without interruption for the duration of his life, a period far in excess of twenty years. Any additional maintenance by the defendant of the Grass Strip to the right of the Original Driveway after he acquired the 16 Property in 1980 would not negate a prescriptive easement that had been previously secured by the DeFazios. [Note 101] See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) (noting exclusivity is not required element to establish prescriptive easement).

The DeFazios’ use was also open and notorious. They made no attempt to conceal their use of the Disputed Driveway Area. See Boutin, 343 Mass. at 331 (noting that where driveway provides only access from house to street, one could conclude such use was “open”). The daily use for pedestrian and vehicular access to the 14 ½ Dwelling, including openly parking in the Original Driveway, combined with regular maintenance and the 1960s paving by DeFazio were acts that sufficed to put the owners of the 16 Property on actual or constructive notice of the DeFazios’ use. [Note 102] Such use was readily observable from the 16 Property, the sidewalk, and from Mt. Pleasant Street. See Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004) (holding actual notice not required, but the use “must be such that the [true] owner should have known of it.”). This was especially the case, given the close proximity of the dwellings in an urban setting.

Additionally, the DeFazios’ use was adverse. The DeFazio family never sought or obtained permission to use any portion of the Disputed Driveway Area, nor did any 16 Property owners or tenants, including the defendant, ever limit or seek to prevent the DeFazios’ use. Within the Commonwealth, “[w]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription . . . unless controlled or explained.” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008) (internal citations omitted). It is then “incumbent upon the owner of the land to prove that the use of the easement was under some license, indulgence, or special contract inconsistent with a claim of right by the other party.” White v. Chapin, 94 Mass. 516 , 519-20 (1866).

The defendant offered no evidence of either express or implied permission from his predecessors-in-title. See Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). The only evidence with regard to permission concerned an alleged conversation between the defendant and DeFazio at some unknown point between 1980 and 1993. In the course of that purported conversation, DeFazio supposedly informed the defendant that the Original Driveway pavement was “six inches” over onto the 16 Property, to which the defendant allegedly advised DeFazio he had “no problem” with that. Even were this court to fully credit this conversation, [Note 103] by 1980 the DeFazios had been using the Disputed Driveway Area adversely since the mid-1950s, a period well in excess of twenty years.

Relying on the open, notorious, adverse, and continuous use of the Disputed Driveway Area for at least twenty years, beginning in the mid-1950s, this court is satisfied that the plaintiff has established a prescriptive easement over the Disputed Driveway Area for vehicular and pedestrian use of the sort described supra. Critically however, “[t]he extent of an easement arising by prescription, unlike an easement arising by grant . . . is fixed by the use through which it was created . . . ‘[T]he use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest.’ [Nevertheless,] the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use.” Cumbie v. Goldsmith, 387 Mass. 409 , 411, n.8 (1962), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-63 (1962). In light of the foregoing, this court concludes that the use made of the Disputed Driveway Area by the DeFazios has established the parameters of the prescriptive easement that is appurtenant to the 14 Property and available, as a consequence, to the plaintiffs.

The evidence establishes that the DeFazios regularly utilized the entire Disputed Driveway Area for pedestrian or foot access to reach the 14 ½ Dwelling. Additionally, the DeFazios regularly parked their vehicles at the end of the Original Driveway, which terminated approximately at the far edge of the concrete steps located just beyond the 14 House. [Note 104] Beyond that point, they used the rear portion of the Disputed Driveway Area only to gain foot access to the 14 ½ Dwelling. Consequently, the plaintiff or its tenants may not—at least in the Disputed Driveway Area—park or drive beyond a point even with the far edge of the 14 Dwelling’s concrete steps, as doing so would exceed the scope of the prescriptive easement. They may, however, drive past this point on the portion of the driveway located solely on the 14 Property itself (i.e. on the left side of the boundary line, as shown on Exhibit 5).

The Disputed Fence Area

As previously noted, this court finds that the defendant, more likely than not, erected the Stockade Fence in the same location where the outer edge of the Hedgerow stood for many years. For the reasons set forth infra, the defendant has failed to prove adverse possession or a prescriptive easement over the entire Disputed Fence Area for a continuous, twenty-year period.

The Stockade Fence encompasses the area in which the former Hedgerow grew and was maintained by the DeFazios for a period well in excess of twenty years. The defendant himself failed to maintain the Hedgerow [Note 105] in a manner and for a time period necessary to sustain a claim for adverse or prescriptive rights with regard to the approximate 4 foot area occupied by the hedges. Credible testimony convinces the court that DeFazio regularly maintained and trimmed both sides of the Hedgerow, all of which was located within the bounds of his 14 Property, [Note 106] for the duration of his life. Upon his passing, other family members performed that function. [Note 107] The property owners and tenants of the 16 Dwelling did not maintain the Hedgerow during the DeFazios’ ownership. Any sporadic maintenance by the defendant during this period will not suffice to sustain a claim for adverse possession or prescriptive easement. See Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (“Acts of possession which are ‘few, intermittent, and equivocal’ [are insufficient] to constitute adverse possession.”). Even if the defendant began regularly maintaining the Hedgerow in 1996 once Ridlon moved onto the 14 Property, such use falls appreciably short of the requisite twenty-year period. Consequently, to the extent the defendant claims adverse possession with regard to the approximate 4 foot wide portion of the Disputed Fence Area once occupied by the Hedgerow, he is unable to marshal the appropriate supporting evidence.

Further, given the width of the Hedgerow (approximately 4 feet at its widest point) in comparison to the whole of the Disputed Fence Area (5 to 6 feet), there was minimal space, consisting of a 1 to 2 foot strip (Strip), remaining in the Disputed Fence Area, i.e. the 1 to 2 foot strip of land located between the actual boundary [Note 108] line and the previously existing Hedgerow. This court concludes that the defendant has failed to meet his burden as it relates to the adverse use of the Strip. There is a pronounced dearth of evidence on the trial record to indicate that any use of the Strip was nonpermissive, actual open, notorious, and adverse for a continuous twenty-year period.

Conclusion

For the foregoing reasons, this court is satisfied that the plaintiff possesses an appurtenant prescriptive easement for vehicular access and/or parking on that portion of the Disputed Driveway Area used for such purposes by the DeFazio family members. Thus, such easement for vehicular access and parking in the Disputed Driveway Area extends to a point even with the far edge of the concrete steps located beyond the 14 Dwelling. The prescriptive easement is also for purposes of pedestrian or foot access over any portion of the Disputed Driveway Area.

At the same time, the defendant whether in his individual capacity or in his capacity as Trustee, has been unable to sustain his adverse or prescriptive claim to any portion of the Disputed Fence Area. [Note 109]

Judgment to enter accordingly. [Note 110]