JOSEPH W. HIGGINBOTTOM, JR. v. CITY OF BOSTON.

In 1975 and 1976, the City of Boston took three parcels on Thornton Street in Roxbury for nonpayment of taxes. In 1977, Joseph W. Higginbottom, Jr., who lives next door to the parcels, began to adversely possess the three vacant parcels, clearing them, fencing them for a time, gardening on them, hosting neighborhood parties, and parking on them personal vehicles and the trucks and equipment for his business. While the City obtained judgments foreclosing the right to redeem the parcels in 1989 and 1994, it took no action that could be interpreted as interrupting Higginbottom’s possession of the three parcels until 1999 at the earliest. Higginbottom and the City have both moved for summary judgment on the issue of whether Higginbottom has established that he holds title to the parcels by adverse possession. Because the undisputed facts establish that Higginbottom openly, notoriously, continuously, actually and adversely used the parcels for twenty years between 1977 and 1999 and, as a matter of law, the tax foreclosures did not interrupt Higginbottom’s adverse use, Higginbottom’s summary judgment motion is allowed and the City’s motion is denied. Judgment shall enter vesting title in the three parcels with Higginbottom.

Procedural History

The Plaintiff’s Complaint for Declaratory Judgment under Chapter 231A was filed on April 23, 2001. On May 1, 2001, the Defendant, City of Boston (City), filed a Motion to Dismiss and the Plaintiff’s Application for Preliminary Injunction was argued and taken under advisement. The Order Granting Plaintiff’s Motion for Preliminary Injunction was entered on May 4, 2001. The Plaintiff’s Amended Complaint was filed on December 7, 2012. The Answer of the Defendant, City of Boston, was filed on January 22, 2013. The Defendant’s Motion for Summary Judgment, Memorandum in Support of the City of Boston’s Motion for Summary Judgment, Statement of Material Facts in Support of its Motion for Summary Judgment, Affidavit of Counsel, and Appendix were filed on February 28, 2014. The Plaintiff’s Opposition to Defendant City of Boston’s Motion for Summary Judgment, Memorandum in Support of Opposition to Defendant City of Boston’s Motion for Summary Judgment, Response to Defendant City of Boston’s Rule 4 Statement of Undisputed Facts and Plaintiff’s Additional Material Facts were filed on March 31, 2014, along with the Plaintiff’s Motion for Summary Judgment, Memorandum in Support of his Motion for Summary Judgment, Statement of Material Facts Not in Dispute, Affidavit of Plaintiff’s Counsel, and Plaintiff’s Record Appendix. The City of Boston’s Memorandum of Law in Reply to Plaintiff’s Opposition and Cross-Motion for Summary Judgment and Motion to Redeem the Thornton Street Parcels and the City of Boston’s Response to Plaintiff’s Statement of Additional Material Facts were filed on April 18, 2014. The motions for summary judgment were heard on April 29, 2014 and taken under advisement.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission...together with the affidavits...show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.’” Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Facts

The court finds that the following facts are undisputed:

1. The plaintiff, Joseph W. Higginbottom, Jr., is an individual residing at 140 Thornton Street, Roxbury, Suffolk County, Massachusetts, 02119. Defendant’s Appendix, Exhibit 1, p. 9.

2. The defendant, City of Boston (City), is a municipality with a principal place of business at Boston City Hall, Boston, Suffolk County, Massachusetts, 02201.

3. Higginbottom resides at 140 Thornton Street with his wife, Mrs. Margaret Higginbottom, and two of his children. Defendant’s Appendix, Exhibit 1, p. 10, 12.

4. Mrs. Higginbottom is the record owner of 140 Thornton St., as evidenced by the Deed executed on September 11, 1991, recorded with the Suffolk County Registry of Deeds on September 24, 1991 at Book 17049, Page 329. Defendant’s Appendix, Exhibit 2.

5. 136, 144 and 146 Thornton Street (Thornton Street Parcels) surround the house at 140 Thornton Street at both sides. Defendant’s Appendix, Exhibit 1, p. 14-15.

6. The City acquired a tax lien on 136 Thornton St. by taking 136 Thornton St. for non- payment of real estate taxes, by an Instrument of Taking executed on August 1, 1975, and recorded with the Suffolk County Registry of Deeds (registry) on August 15, 1975 at Book 8811, Page 178. Defendant’s Appendix, Exhibit 4.

7. The City acquired a tax lien on 144 Thornton St. by taking 144 Thornton St. for non- payment of real estate taxes, by an Instrument of Taking executed on June 18, 1976, and recorded with the registry on July 16, 1976 at Book 8888, Page 612. Defendant’s Appendix, Exhibit 5.

8. The City acquired a tax lien on 146 Thornton St. by taking 146 Thornton St. for non- payment of real estate taxes, by an Instrument of Taking executed on June 18, 1976, and recorded with the registry on July 16, 1976 at Book 8888, Page 611. Defendant’s Appendix, Exhibit 6.

9. Without anyone’s permission, Higginbottom took possession of the Thornton Street Parcels in 1977 and began utilizing and maintaining them by cutting high weeds, cleaning the lots of debris and removing burned and abandoned cars.

10. In 1977, Higginbottom cleared and leveled the Thornton Street Parcels. Plaintiff’s Appendix, Exhibit A, p. 28.

11. On a regular basis from 1977 to the present, Higginbottom cut the grass on the Thornton Street Parcels and kept them maintained and cleaned. He also planted a garden with green beans, cherry tomatoes, corn and other vegetables. Plaintiff’s Appendix, Exhibit A, p. 25; Exhibit B, p. 5.

12. Using his equipment Higginbottom has regularly removed snow from the Thornton Street Parcels. Plaintiff’s Appendix, Exhibit A, p. 26.

13. Every year, Higginbottom and his family have held gatherings on the Thornton Street Parcels that were attended by family, friends and strangers. Defendant’s Appendix, Exhibit 1, p. 30.

14. Higginbottom put up a steel chain around each of the Thornton Street Parcels in 1977; the chains were taken down within a ten-year period. Plaintiff’s Appendix, Exhibit 1, p. 34-35.

15. Around 1978, Higginbottom took further measures to secure the Thornton Street Parcels. He put up a partial fence on 136 Thornton Street, he added to a partial fence on 144 Thornton Street, and he put up a fence on 146 Thornton Street. He also installed gates at each property. These enclosures were removed by Higginbottom within a ten year period of 1977. The dates in which these enclosures were added or removed are not clear from the record. Plaintiff’s Appendix, Exhibit 1, p. 31-37.

16. Higginbottom owns a business that kept its trucks, machinery and heavy equipment parked on the Thornton Street Parcels from 1977 to 1999. Plaintiff’s Appendix, Exhibit 1, p. 39- 40, 43.

17. Higginbottom posted signs with his trucking business’s name on the fence located at 144 and 146 Thornton St. Plaintiff’s Appendix, Exhibit A, p. 45.

18. Higginbottom has parked family cars and personal vehicles on 136, 144 and 146 Thornton St. since 1977. Plaintiff’s Appendix, Exhibit A, p. 44, 69.

19. As of December 13, 2013, Higginbottom had continued to park his remaining commercial vehicles on 144 and 146 Thornton Street. Plaintiff’s Appendix, Exhibit A, p. 60.

20. Higginbottom contacted the City on several occasions to find out how to pay taxes, beginning within five years of 1977 and ending three or four years prior to the BEST inspection in 1999, discussed below. He contacted the City on several occasions to find out how to acquire the Thornton Street Parcels in the 1970’s and 1980’s. Plaintiff’s Appendix, Exhibit 1, p. 50-51.

21. On March 3, 1989, the Land Court entered a Judgment in favor of the City of Boston foreclosing all rights of redemption against Roxbury Action Program, Inc., with respect to 144 and 146 Thornton St. Defendant’s Appendix, Exhibit 7.

22. On December 1, 1994, the Land Court entered a Judgment in favor of the City of Boston foreclosing all rights of redemption against Roxbury Action Program, Inc., with respect to 136 Thornton St. Defendant’s Appendix, Exhibit 8.

23. On November 30, 1999, the City of Boston Environmental Strike Team (BEST) conducted an inspection of the Thornton Street Parcels to determine whether the owner of 140 Thornton St. was operating an unsanitary truck repair facility and construction yard on City property and to order those materials to be removed if they were found. Defendant’s Appendix, Exhibit 9, Affidavit of Jack Tracy (Tracy Affidavit) ¶¶ 11, 13.

24. BEST consisted of inspectors from the Police Department, the Fire Department, Inspectional Services Department, Public Health Commission, the Code Enforcement Police, the Environmental Department, and the Boston Water and Sewer Commission. It was responsible for responding to complaints made by the public regarding those sites in the City of Boston that posed a serious hazard to the public health, safety and environment. Tracy Affidavit ¶¶ 8, 9.

25. BEST entered the Thornton Street Parcels and found them to be in an unclean and unsanitary condition. There were numerous pieces of debris and solid waste material, including junk truck and auto parts and junk construction equipment on the parcels. Tracy Affidavit ¶ 14 and Exhibit A; Defendant’s Appendix, Exhibit 10.

26. After the inspection, Senior Health Inspector Jack Tracy drafted a Notice to Abate on behalf of BEST and the Boston Public Health Commission (BPHC), citing the violations of law and the hazardous conditions found in the basement of 140 Thornton Street and on the land surrounding the home, and sent it to the record owner of 140 Thornton Street. Tracy Affidavit ¶ 18 and Exhibit B.

27. Additionally, notices of violations of the state building code, state sanitary code, the state fire code and the state environmental code were presented to the record owner of 140 Thornton Street. Tracy Affidavit ¶ 19 and Exhibit C.

28. The violation notices, including the BPHC Notice to Abate, were addressed to Mrs. Higginbottom because 140 Thornton Street was the only residential address on record at the site of the November 30, 1999 inspection. Tracy Affidavit ¶ 20.

29. BEST conducted re-inspections of the Thornton Street Parcels in 2000 and 2001. Defendant’s Appendix, Exhibit 11.

30. Higginbottom received the BPHC Notice to Abate and the other City violation notices and cleaned the Thornton Street Parcels. Defendant’s Appendix, Exhibit 1, p. 52-56.

31. After the 1999 BEST inspection, Higginbottom moved the equipment for his family trucking business off of the parcels, taking it to Smithfield, Rhode Island. Defendant’s Appendix, Exhibit 1, p. 40.

32. Higginbottom ceased operations of his family business on the Thornton Street Parcels on the day that BEST concluded its inspection. Defendant’s Appendix, Exhibit 1, p. 40.

33. Higginbottom’s employees ceased working for the family business after the BEST inspection. Defendant’s Appendix, Exhibit 1, p. 43.

34. In the spring of 2012, Higginbottom received a notice from the City’s Department of Neighborhood Development ordering him to remove a parked car from the Thornton Street Parcels within three days, on the grounds that it was illegally parked on City property. Plaintiff’s Am. Compl., Exhibit B.

Discussion

The City has moved for summary judgment on Higginbottom’s counts of adverse possession and prescriptive easement, claiming that both counts fail as a matter of law, and therefore summary judgment is appropriate. The City argues that Higginbottom cannot meet any of the elements of adverse possession or prescriptive easement. Higginbottom cross-moves for summary judgment in his favor, and argues that he has met his burden of proof with respect to both claims.

“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). The person claiming title by adverse possession has the burden of proving each element. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). The elements for prescriptive easement are the same as those for adverse possession, except that the claimant need not prove exclusive use. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Based on the undisputed facts and drawing inferences in the City’s favor, Higginbottom is able to meet his burden of proof as to adverse possession. There is, therefore, no need for a discussion of prescriptive easement.

A. The Adverse Possession Period Runs Against a Municipality after a Tax Taking.

The City argues that Higginbottom cannot prove adverse possession of the Thornton Street Parcels for a consecutive twenty-year period because the foreclosure of a tax title interrupts the period of his adverse use. The tax takings of the Thornton Street Parcels were recorded in 1975 and 1976. Higginbottom began his possession of the parcels in 1977. In 1989, the Land Court entered a decree foreclosing all rights of redemption for 144 and 146 Thornton Street; in 1994, a similar decree was entered for 136 Thornton Street. Relying on Town of Sandwich v. Quirk, 409 Mass. 380 (1991), the City argues that these foreclosures reset the adverse possession period for the Thornton Street Parcels. This is a misreading of Town of Sandwich. In that case, the SJC held that the “statute of limitations starts to run against a municipality, if it runs at all, when it takes adversely possessed land for nonpayment of taxes.” Id. at 385 (emphasis added). This is because “prior to the tax taking, a municipality had no right to challenge the trespass.” Id. A tax foreclosure pursuant to G.L. c. 60, § 64, on the other hand, does not interrupt the adverse possession period; rather, it “extinguishes only the interests of any party claiming rights ‘through the record owner, such as mortgagees, lienors, or attaching creditors.’” Buk Lhu v. Dignoti, 431 Mass. 292 , 296 (2000), quoting Town of Sandwich, 409 Mass. at 384; see Harrison v. Dolan, 172 Mass. 395 , 396 (1899). “The purpose of absolute title under § 64 is to clear the new title of all encumbrances placed on the property by the prior record owner.” Buk Lhu, 431 Mass. at 296. An adverse possession claim is not an encumbrance placed on the property by the prior record owner, and a person claiming adverse possession is not, by definition, claiming rights through the record owner but rather is adverse to the record owner. To interrupt an adverse possession period after a taking, the municipality must take some action apart from the foreclosure to possess the property. Harrison, 172 Mass. at 396. Following the tax takings, the City had a right to challenge any trespass on those properties. The foreclosures of 1989 and 1994 did not challenge the trespass of Higginbottom, and therefore do not interrupt the adverse possession period. [Note 1]

B. The Undisputed Facts Establish the Elements of Adverse Possession By Higginbottom.

1. Adverse Use

Higginbottom claims that his use of the Thornton Street Parcels was nonpermissive. The City does not dispute this, and there is no evidence suggesting that the City gave Higginbottom permission to use the properties.

2. Continuous Use

Adverse possession requires adverse use for a period of twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Higginbottom’s twenty year period of adverse use began in 1977. Since the tax foreclosures in 1989 and 1994 do not interrupt the adverse possession period, and drawing inferences in the City’s favor, the adverse possession period ended no earlier than November 30, 1999 when BEST first entered the parcels. Higginbottom claims that he continued his uses of the Thornton Street Parcels throughout this period; the City does not dispute this. Since Higginbottom’s period of adverse use began in 1977 and ended no earlier than 1999, Higginbottom has met his burden of proof to establish twenty continuous years of use.

3. Actual Use

When evaluating actual use, “‘a judge must examine the nature of the occupancy in relation to the character of the land.’” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556, quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). The question is whether Higginbottom made “changes upon the land” that “constituted 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.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). The court must consider all of the activities that Higginbottom engaged in on the Thornton Street Parcels in order to determine whether they together show control and dominion. Peck, 34 Mass. App. Ct. at 557.

In 1977, when he began using the Thornton Street Parcels, Higginbottom cut the high weeds, cleared the parcels of debris, and removed burned and abandoned vehicles. He also cleared and leveled the Thornton Street Parcels. From 1977 to the present, Higginbottom has maintained the Thornton Street Parcels by cutting the grass, removing snow in the winter, and keeping the property clean. He has also kept a vegetable garden. Every year, Higginbottom held family gatherings on holidays and birthdays on the Thornton Street Parcels. These activities weigh in favor of a finding of adverse possession. See Collins v. Cabral, 348 Mass. 797 (1965) (activities of harvesting fruit and rhubarb, clearing the locus of poison ivy and mowing the grass, and holding picnics on the locus were used to support a finding of adverse possession); Lebel v. Nelson, 29 Mass. App. Ct. 300 , 301-302 (1990) (clearing of the disputed area and the maintenance of a lawn supported adverse possession). While some of these activities are seasonal (removing snow, cutting grass), “seasonal uses may establish adverse possession.” Id. at 302, citing Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961).

The strongest indicator of Higginbottom’s control and dominion over the Thornton Street Parcels is his use of the parcels as a storage and parking area for his business. From 1977 to 1999, Higginbottom kept vehicles and equipment necessary to the operation of his site-work business, including heavy machinery and trucks, on the Thornton Street Parcels. The use of the Thornton Street Parcels in this manner is of a type usually and ordinarily associated with ownership. See Masa Builders, Inc. v. Hanson, 30 Mass. App. Ct. 930 , 930 (1991) (that the disputed land was used as a lot to serve Hanson’s auto repair business weighed in favor of adverse possession). Higginbottom has also used the Thornton Street Parcels to park commercial and personal vehicles, and from 1977 to 1999, his employees parked on the parcels as well. See id. (use of the property by defendant to park vehicles for his automobile repair business supported a finding of adverse possession); Lebel, 29 Mass. App. Ct. at 301 (use of the property to store boats and to park vehicles counted in favor of adverse possession). Together, these uses show the requisite control and dominion necessary to prove actual use of the Thornton Street Parcels. LaChance, 301 Mass. at 491.

4. Open and Notorious Use

Adverse possession that is open and notorious places “the true owner ‘on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.’” Lawrence, 439 Mass. at 421, quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). There is no requirement that actual notice be given to the true owner. Id. In order for an adverse use to be open, it must “be made without attempted concealment.” Footman v. Bauman, 333 Mass. 214 , 218 (1995). Here, the record is undisputed that Higginbottom’s adverse use of the Thornton Street Parcels was open.

Notorious 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, 68 Mass. App. Ct. at 44. It “is not necessary that the use be actually known to the owner for it to meet the test of being notorious.” Footman, 333 Mass. at 218. The question is whether Higginbottom’s adverse use of the Thornton Street Parcels was sufficiently pronounced so as to be made known by a landowner maintaining a reasonable degree of supervision over the property. The City argues that the Thornton Street Parcels have remained undeveloped since 1977, and therefore Higginbottom’s use was not notorious enough to put the City on constructive notice. The City compares the current situation to that of Boothroyd, where the Appeals Court found that the plaintiff’s recreational use of trails was not notorious, due to the fact that the property on which the trails traveled through was thickly wooded and covered with dense brush, and had remained unchanged throughout the twenty year period in question. Boothroyd, 68 Mass. App. Ct. at 45. The character of the land physically obscured the use to the extent that a landowner maintaining a reasonable degree of supervision of the property would not have received constructive notice. Id. That is not the case here. In 1977, Higginbottom cleared and leveled the property. From 1977 to 1999, Higginbottom kept vehicles and equipment necessary to the operation of his site-work business, including heavy machinery and trucks, on the Thornton Street Parcels. Higginbottom also put company signs on the fences on 144 and 146 Thornton Street. A landowner maintaining a reasonable degree of supervision over the property would have received constructive notice as a result of these uses. Therefore, Higginbottom has met his burden on this element.

5. Exclusive Use

Exclusive use requires the “exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass. App. Ct. at 557. There is no evidence that the City made use of the Thornton Street Parcels from 1977 to November 1999. The question is whether Higginbottom excluded third persons from the parcels to the extent that the owner would have excluded them. The first issue to consider is enclosure, since “[a]cts of enclosure...are evidence of adverse possession.” Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

When Higginbottom began his period of adverse use of the Thornton Street Parcels in 1977, he put steel chains around the parcels to secure the area. About a year later, Higginbottom took further measures to secure the Thornton Street Parcels. He put up a partial fence on 136 Thornton Street, he added to a partial fence on 144 Thornton Street, and he put up a fence on 146 Thornton Street. He also installed gates at each property. The dates in which these enclosures were added or removed are not clear from the record, but within ten years of 1977 Higginbottom had removed all barriers to access to the Thornton Street Parcels.

The City argues that Higginbottom cannot show exclusive use throughout the adverse possession period because the enclosures were taken down about ten years prior to 1997. The question is whether Higginbottom’s adverse use can be deemed exclusive without the enclosures present. The City argues that it cannot, and relies on the fact that “strangers” attended the various gatherings held by Higginbottom on the Thornton Street Parcels. There is no evidence that “strangers” ever utilized the Thornton Street Parcels outside of these gatherings, which were hosted by Higginbottom. See Bikofsky v. Liverman, 13 LCR 141 , 142 (2005) (that the record owner defendants attended parties hosted by the plaintiffs on the disputed area did not defeat the plaintiffs’ claim for adverse possession). Since the defendants in Bikofsky were on the disputed area only upon invitation by the plaintiffs, and under the assumption that the plaintiffs owned the disputed area, their attendance at parties was not enough to show that the plaintiffs did not enjoy exclusive use. Id. The fact that the defendants never used the property independently of the plaintiff’s permission was essential. Id. Higginbottom held gatherings at the Thornton Street Parcels each year, and he allowed people in the neighborhood to attend. While Higginbottom might not have invited the “strangers” to the Thornton Street Parcels for his gatherings, they were present with his assent.

Higginbottom’s other uses of the property included the storage of equipment for his business, and the parking of heavy machinery, trucks, commercial vehicles, and personal vehicles. He continued these activities throughout the entire adverse possession period. It is important that no one else used the Thornton Street Parcels for parking in any capacity, other than Higginbottom’s employees. See Johns Bldg. Supply Co. v. Safe Storage Mass., LLC, 16 LCR 318 (2007) (that employees of another company sometimes plowed snow and parked in the disputed parking area meant there was not exclusive use by the plaintiffs). Higginbottom and his family were the only people to do maintenance work on the parcels, including cutting grass and removing snow. There is no evidence that anyone used the Thornton Street Parcels in any capacity without the assent of Higginbottom between 1977 and November 1999. As a result, Higginbottom has met his burden to establish exclusive use.

Conclusion

Based on the undisputed facts and drawing inferences in the City’s favor, Higginbottom has established that he adversely possessed the Thornton Street Parcels openly, notoriously, and exclusively for a continuous twenty-year period between 1977 and 1999. Higginbottom’s Cross-Motion for Summary Judgment is ALLOWED. The City of Boston’s Motion for Summary Judgment is DENIED. Judgment shall enter declaring that Higginbottom has title by adverse possession to the Thornton Street Parcels.

SO ORDERED