This case concerns the parties ownership rights in a 909 +/- square foot parcel of land (Disputed Area) in Wilmington, Massachusetts. The parties own improved residential lots that share, in the rear of each of the lots, a common record boundary line. The Disputed Area lies where the two record parcels meet each other. [Note 2] Plaintiff David Doucette (Mr. Doucette) agrees that the Disputed Area is in the record ownership of the defendant. Mr. Doucette seeks to establish ownership of the Disputed Area by adverse possession, relying on his claims to have engaged in a variety of adverse uses since as long ago as 1983.
II. PRELIMINARY FACTS REGARDING OWNERSHIP
Many of the facts concerning the record title to the parties two lots (and the creation of those record lots) are agreed to by the parties, or easily derived from the evidence without significant controversy. I find from the agreed facts and credible evidence that:
Defendant Sonia Nix (Ms. Nix) is the record owner of the improved residential land (Nix property) with a street address of 18 Grand Street, Wilmington, Massachusetts. Her record ownership parcel is shown as Lot A on the 2007 Plan. Mr. Doucette and his wife Linda Doucette are the record owners of the improved land (Doucette property) with a street address of 9 Canal Street, Wilmington, Massachusetts. The Nix property lies roughly to the west of the Doucette property. Grand Street and Canal Streets run in a roughly north and south direction, and parallel to each other.
According to Nix deed, dated March 9, 1989 and recorded with the Middlesex County (North District) Registry of Deeds ( Registry) in Book 4325, Page 13, the Nix property of record consists of 17,500 square feet of land and is, based on the description used in the deed, that shown as Lot A on a plan of land (1982 Morris Plan) titled Plan of Land in Wilmington, Mass. Drawn for: Benjamin & Sarah Voles dated September 23, 1982, prepared by Robert P. Morris, R.L.S. and recorded with the Registry in Plan Book 137, Plan 138. According to the Doucettes deed, dated October 29, 1985 and recorded with the Registry in Book 3234, Page 52, the Doucette property consists of 19,400 square feet of land and is shown as Lot B on the same recorded 1982 Morris Plan.
It is undisputed that Lot A and Lot B were created following a zoning variance allowing the division of a larger commonly-owned tract into two lots lacking the requisite area and frontage under the zoning laws of the Town. Both were initially owned as a single parcel by Benjamin F. Voles and Sarah M. Voles (Voles), Mr. Doucettes parents. The Voles acquired the land that now comprises the Doucette property and Nix property, measuring, according to the record conveyance, a combined 36,500 square feet, by deed of Gertrude E. Larson dated December 20, 1960 and recorded with the Registry in Book 1500, Page 455 (Voles Deed). [Note 3]
In 1979, while his parents still owned the combined land, Mr. Doucette filed an application with the Wilmington Board of Appeals seeking a variance from By-law Section V-1, Schedule of Requirements, to divide the Voles property into two lots having insufficient frontage and area. There was then a dwelling house on what is now Lot B, but not on what is now Lot A. It appears that application was successful, but no timely action was taken to construct a new dwelling on the Grand Street piece, and the 1979 variance expired.
Mr. Doucette moved back to the Voles property to live with his parents in 1981. In 1982, he filed a new application with the Wilmington Board of Appeals to acquire once again a variance to divide the Voles Property into two residential lots having insufficient frontage and area. Following a hearing held on July 27, 1982, the Variance in Case No. 44-82 was granted as evidenced by the Notice of Decision recorded with the Registry in Book 2563, Page 313. On October 5, 1982 the Wilmington Planning Board endorsed as approval not required the 1982 Morris Plan, which soon after was recorded with the Registry on October 12, 1982 in Plan Book 137, Plan 138.
On October 8, 1982, the Voles conveyed the newly created Lot A (the land now known as the Nix property) to Dennis Sullivan, a local builder, for recited consideration of $16,000.00. The Sullivan deed was recorded with the Registry in Book 2563, Page 58 on October 12, 1982, along with the 1982 Morris Plan. This conveyance created the separate title to the land that now is the Nix property. The Voles were left owning the balance of the land conveyed to them in the 1960 Voles Deed. This remaining land is now of record the plaintiffs and his wifes.
Dennis Sullivan constructed a dwelling on Lot A, and on February 16, 1983 conveyed it to Steven Jon Wolff and Gayle Nix Wolff (daughter of Tracey Nix), who then conveyed it to the Tracey L. Nix and Sonia H. Nix, husband and wife as tenants by the entirety, on March 9, 1989. This is the latest deed of the Defendants parcel; it is in the Registry at Book 4325, Page 13. None of the deeds in the chain from the Voles to the Nixes refer expressly to Lot A on the 1982 Morris Plan to describe the land conveyed; while these instruments do refer to that record plan, they use lot designations from a much earlier 1917 plan, the Independent Park plan, recorded with the Registry in Plan Book 34 as Plan 44. The parties do not attribute significance to this, and agree that Ms. Nix owns of record Lot A on the 1982 Morris Plan.
Mr. Doucette and his wife Linda Doucette, as husband and wife, tenants by the entirety, purchased Lot B (the Doucette property) from his parents, the Voles, on October 29, 1985; prior to that he had acquired rights in the property under a three (3) year lease with option to purchase beginning on September 1, 1983. The deed the Voles used to convey to the Doucettes is dated October 29, 1985 and recorded in the Registry in Book 3234, Page 52.
II. THE LITIGATION AND ITS PROCEDURAL HISTORY
In 2007, the Nixes decided to build a fence on the Nix-Doucette boundary line. They hired registered land surveyor John B. Paulson of Northeast Engineering Associates to survey their land and to stake the Nix-Doucette boundary line. The plan that Mr. Paulson prepared, an August 10, 2007 Plan of Land at 18 Grand Street in Wilmington, Massachusetts shows his rendition of the location of a stone wall on the Nix property in relation to the Doucette-Nix record boundary line and a 909 +/- square foot tapering quadrilateral-shaped encroachment area, the Disputed Area. As a result of the parties undertakings to the court in the trial of this case, I accept that the record boundary line is correctly depicted on the 1982 Morris Plan and on the 2007 Paulson plan. There is no inconsistency apparent in the record boundary line as shown on these two plans; the markings and distances are same and line up the same on both plans. The 2007 Paulson plan additionally shows the stone walls location, and the resulting calculated encroachment area, which is not depicted on 1982 Morris plan.
In the Fall of 2009 the Nixes asked Blockout Fence Co. to begin construction of a fence along the Doucette-Nix record boundary line. This led to the filing on November 2, 2009 by Mr. Doucette, representing himself, of a handwritten complaint in the Superior Court Department, Middlesex Division. That court issued a temporary restraining order that day, apparently ordering a halt to the construction of the fence. An answer with counterclaims, alleging trespass by Mr. Doucette, was filed by the Nixes at the end of November.
On December 17, 2009, Mr. Doucette filed his answer to the counterclaims and a motion to transfer to this court. The case was transferred, presumably pursuant to G.L. c. 212, § 26A, to the Land Court on or about September 15, 2010 by a marginal order of a Superior Court justice, indicating that the parties were in agreement as to transfer, and that the injunction remained in place. On arrival in this court, the case received its current docket number and was assigned to be heard by Judge Grossman.
This court held a case management conference on November 17, 2010. After an initial round of summary judgment motions, which were denied on December 12, 2013, [Note 4] the court (Grossman, J.) scheduled a pretrial conference. On July 22, 2014, in light of Judge Grossmans retirement, this case was reassigned to Justice Gordon H. Piper, and a pretrial conference scheduled for August 14, 2014. The court assigned dates for a view and trial.
On the afternoon of October 24, 2014, in the presence of counsel and others, including the parties, I took a view of the locus. Trial was held on October 28, 2014; a court reporter, Wendy L. Thomas, was sworn and present throughout to create a trial transcript. The following witnesses testified: Defendant Sonia Nix, Plaintiff David Doucette, Michael Doucette, Nicole LeClair, Richard Gath, John Nix, Linda Doucette, George Suprenant, Gayle Oulighan, and Josep Jodar. Forty-seven exhibits were admitted into evidence, many by the parties agreement, and all as reflected in the transcript.
At the close of the presentation of the evidence, the court instructed the parties to file and serve post trial memoranda and proposed findings of fact and rulings of law within thirty days following receipt of the transcript. On January 15, 2015, I held a telephone hearing on defendants emergency motion to strike, as untimely, the plaintiffs post-trial filings. The court offered to postpone the January 16, 2015 closing arguments to give Defendant a brief amount of time to file a reply to Plaintiffs late-filed post trial brief, proposed findings of fact, and rulings of law. Defendant through counsel declined. The court denied the motion to strike, and trial resumed for closing arguments on January 16, 2015. I took the case under advisement upon receipt of the transcript of the closing arguments, and now decide the case.
III. FINDING OF FACTS ADVERSE POSSESSION
Based on all the evidence, and the reasonable inferences I draw therefrom, I make the following additional factual findings:
1. Sonia Nix is the record owner of Lot A. On October 8, 1982, the Voles conveyed the newly created Lot A (the land now known as the Nix Property) to Dennis Sullivan, a local builder. Dennis Sullivan constructed a dwelling on Lot A, and on February 16, 1983 conveyed it to Steven Jon Wolff and Gayle Nix Wolff (daughter of Defendant Tracey Nix, now Gayle Oulighan), who then conveyed it to the Nixes on March 9, 1989.
2. Mr. Doucette is the record owner of Lot B, property that he purchased from his parents, the Voles, on October 29, 1985. Prior to that he held the property as a tenant under a three (3) year lease, with the option to purchase beginning on September 1, 1983.
3. In an undated photograph produced by Mr. Doucette, his father, Benjamin Voles can be seen working in his garden; I conclude this scene is set roughly in and around the area now referred to as the Disputed Area and was shot before the division of the land. According to Mr. Doucette, the stone wall can be seen in the photo near the garden. I cannot see any obvious stone wall in the photograph, and am unable to find on this basis that a stone wall then was located where it now is, marking the western limit of what now is the Disputed Area.
4. Mr. Doucette contends his parents, the Voles, intended to sell off only the land to the west of the stone wall when they divided their property and sold off Lot A. This assertion does not have great significance in light of the plaintiffs recognition of the dividing line on the 1982 Morris plan as the limit of the parties record ownership, but may help explain the Doucette position that activities and uses made within the Disputed Area, to the west of the record line and the east of the stone wall now there, might have been conducted by the Doucette family in this strip of land.
5. The stone wall as it exists today is discernible as a low run of rocks and stones, in roughly a straight line, in the position shown on the 2007 Paulson plan, though it is not of a uniform construction, with some gaps and ill-defined stretches; overall, it is not tall or imposing, is in most of its length easily stepped over, and certainly does not serve as an impenetrable barrier to passage. At its northern end, the stones are more unified and higher, to perhaps two or three feet tall, but for much of its length, this so-called stone wall is visible only as line of loosely placed stones, rather than a true wall. In places, particularly at the southern end, the wall is far less consistently visible, and in places some sand bags bridge gaps in the line of stones. On the view I took, I did observe some moss and vegetation growing atop some of the stones in places, but I am unable to make any meaningful finding, based on this or any credible evidence, about how long the line of stones has been in the position I observed. As the 2007 Paulson plan shows, the stone wall does not run parallel to the record boundary line shown on the 1982 Morris Plan or 2007 Paulson Plan. It tapers, so that it makes the Disputed Area wider at the north and narrowest in the south.
6. There has never been a fence or any other barrier to prevent pedestrian movement between the Nix and Doucette Properties. The Nixes did put a line of cinder blocks close to and roughly parallel to the row of stones at some point during their ownership. The best I can conclude is that these went in some time in the 1996 to 1997 time frame. These cinder blocks rested one--and in places twohigh. They did not impede passage across them, nor across the record boundary line. I attribute little significance to the installation and presence of the cinder blocks in deciding the plaintiffs adverse possession claim. It is not legally significant whether the Nixes may have placed the cinder blocks on a mistaken conclusion that they followed the line of record ownership. What matters is the conduct of the parties, and in particular of the plaintiff, in making use of the Disputed Area. The presence or not of the line of stones and of the cinder blocks, and the sense of the record owners about where the true record boundary ran, do not alter the courts assessment whether the plaintiff has carried his burden of showing adverse possession as a factual matter. There is, as I have said, nothing about either the line of stones or of the cinder blocks, even had they been in place for the requisite number of years (something I find unproven) that would have served to fence off or bar passage across the boundary line and the Disputed Area.
7. Neither the 1982 Morris Plan, nor any plan of record prior to the 2007 Paulson Plan, shows a stone wall on or between the subject properties.
8. No stone wall can be seen in the earlier photographs; the one of Benjamin Voles working in his garden during his ownership of the Voles property does not convince me that the stone wall then was there. The area is generally unkempt and somewhat wild and untrimmed in appearance, with wild grass and bushes.
9. There is no evidence I credit that, in splitting up their larger parcel into what is now the Nix property and the Doucette property, Mr. and Mrs. Voles intended their land to be divided along a stone wall. As I have said, the record title line does not hew to the line of the low stone wall now in place.
10. Portions of the Doucette property have been filled with earth and similar material over several years, a project carried out, sporadically at times, by Mr. Doucette. This fill leveled and adjusted the lands topography. Mr. Doucette began to undertake the task of filling in portions of the Doucette property, including by adding fill to at least part of the Disputed Area, starting after his hip surgery, doing this work mostly by hand.
11. Mr. Doucettes fill project began some time after he recovered from his hip surgery in 1992, and lasted for about four years.
12. Before Mr. Doucette undertook his fill project, the Disputed Area was a mixture of dirt and lousy grass patchy, sketchy wasnt that good, in Mr. Doucettes own words, which on this point I accept.
13. After filling the land, Mr. Doucette planted some grass and various other plants.
14. Mr. Doucette, in his direct examination at trial, testified that he used the Disputed Area from 1983 to 1989; he testified that a boat, trailers, and ladders would be left in that part of the property, but I find that they were there only much later. I find the proof of occupation of the Disputed Area in this manner during that earlier time unconvincing.
15. Rather, I find that Mr. Doucette, who has worked as a carpenter and contractor, has most recently been keeping in the Disputed Area several ladders and miscellaneous construction equipment and materials. These, I find, were not stored in the Disputed Area for all that long; these items that Mr. Doucette currently stores in the Disputed Area were until the mid-2000s generally stored away from the Disputed Area, and were located rather in a location adjacent to the Doucette house. Along the northern side of the house, near the Jodar property, and well away from the Disputed Area, Mr. Doucette has for some time accumulated a large and variable collection of materials and equipment, including the ladders, aluminum staging and planking, gutters and downspouts, sawhorses, barrels, and a lawnmower and cart. I find that some much smaller subset of these types of itemsmostly ladders, an old boat, other construction materials and equipment, and other personal property of Mr. Doucettewere placed in the Disputed Area, but only for a short time, beginning a few years at most, prior to the year 2007, when the Nixes had the boundary line surveyed and through counsel urged Mr. Doucette to remove these items.
16. The Doucette family had a golden retriever named Moose for fifteen years beginning in or about 1984.
17. Mooses dog run setup consisted of a wire connected to a tree on one side, and a pole on the other. The tree holding up one end of the wire, I find, is or was located at or near the northern edge of the Doucette property, and not in the Disputed Area, and the pole to which attached the other end of the wire was and is, I find, located in the middle of the Doucette backyard, also outside of the Disputed Area. Although the evidence was not all in agreement, I credit and find persuasive the evidence offered to prove that no fixed component of the dog run was located within the Disputed Area.
18. According to Ms. LeClair, the Doucettes daughter, the area where Moose was allowed to roam included a portion of the Disputed Area. While it may well be that the dog at times made its way into the Disputed Area, I cannot find that any fixed components of the dog run were installed within the Disputed Area. I do not find that the presence of the dog within the Disputed Area took place in a regular, frequent, confined manner, certainly not to the degree which would show any occupation of the Disputed Area by the plaintiff through activities involving the dog Moose.
19. According to Ms. Linda Doucette, the area in which Moose was allowed to roam was smaller than the area described and drawn out by Ms. LeClair. I find Ms. LeClairs account on this point unconvincing. Nothing established for me that the dog run was installed in or over the Disputed Area, nor that the dog was left to run in it regularly.
20. The Doucette picnic table and fire pit, which certainly existed on the Doucette property, were located outside of the Disputed Area.
21. The Doucette family eventually converted the dog run to a clothesline by disconnecting the line from the tree and running a line between the supporting pole and a point near the back steps of the Doucette house. No component of the clothesline ever was or is now located in the Disputed Area. From the relevant photographs admitted in evidence to show the location of the pole, I find no convincing proof that it was located within the Disputed Area.
22. There is a flag pole that is now located just inside the easterly edge of the Disputed Area, just to the west of the record property line. This pole, I find, was placed there most recently by Mr. Doucette, after the controversy with his neighboring owners had arisen, in the two or three years leading up to the filing of this lawsuit. This flag pole, barely within the Disputed Area, as shown on the 2007 Paulson plan, is the only real physical feature added by Mr. Doucette that intrudes into the Disputed Area.
23. Richard Gath installed a new septic system on the Doucette property at some point in 1991 or, more likely, 1992, to replace their long-existing disposal system, which by then was in poor condition.
24. Mr. Gath was not licensed by the Town of Wilmington to perform septic system work at the time he installed the septic system on the Doucette property. He did this work unofficially to accommodate the Doucettes, who were relatives.
25. The septic tank put in is located outside of the Disputed Area.
26. Much of the Doucette back yard and a portion of the Disputed Area were unearthed by Mr. Gath in connection with his septic system installation project.
27. Mr. Doucette claims that portions of his septic system are located in the Disputed Area but I am unable to make that finding based on the credible evidence. There are photographs taken during the installation of the septic system that seem to show a portion of it, especially one run of corrugated heavy black plastic likely used to disperse some of the effluent waste water, as positioned in a trench not far from what looks to be a run of loose rocks or stones. I am unable to find, nevertheless, that this component actually was placed underground in the disputed area. The evidence I credit on this question is limited and not greatly revealing on where the new system came to be placed. I conclude that it is not shown on the evidence, as I accept it, that the new system found a location beneath the Disputed Area.
28. I find that the bio-diffuser/leach field components installed by Mr. Gath in the early 1990s are located outside of the Disputed Area. The portion of the Disputed Area unearthed by Mr. Gath contained roots indicative of growth more substantial than grass. This leads me to find that the Disputed Area was in the years leading up to the septic system project the location of heavier growth such as brush and shrubs.
29. From the time when the Nixes acquired the Nix property until the early 1990s, when both Mr. Nix and Mr. Doucette each began to improve their respective back yards, the Disputed Area was largely wild, a bit overgrown and somewhat wooded. It was not cultivated and it was not kept landscaped or neatly trimmed.
30. At the time of the conveyance of the Nix Property from Voles to Sullivan, the Nix property, including the Disputed Area, was covered by wild, tall, grassy, hay like growth and, in places, more substantial vegetation.
31. Beginning in 1989, the Nix family periodically cleared, raked, and removed leaves in and from the Disputed Area.
32. On December 17, 2007, the Nixes through previous counsel served Mr. Doucette with a notice that he was making unauthorized use of the Nix property; they provided him with a copy of the 2007 Paulson plan and called upon him to remove the items he had brought onto the Disputed Area.
33. Sometime after receiving the Nixes request to remove these items, Mr. Doucette engaged a surveyor to provide some survey-related services on the Doucette property.
34. During his deposition, Mr. Doucette did not recall the name of the surveyor he engaged.
35. During his deposition, Mr. Doucette did not recall when the surveyor performed the work. To the extent the surveyor was paid anything at all by Mr. Doucette, it was in cash. I find Mr. Doucettes testimony about this less than forthcoming, and conclude that the work, to the extent it was done to help locate the boundary line, concluded in a manner less than supportive of Mr. Doucettes initial position that he had a title to the Disputed Area.
36. Mr. Doucette asked the surveyor to place boundary line stakes along the stone wall, but the surveyor refused to do so. Mr. Doucette eventually fired this unnamed surveyor; Mr. Doucette says he did that because the surveyor was a drunk.
37. Mr. Doucettes first attempt to exclude the Nixes from the Disputed Area was the temporary restraining order to prevent the Nixes from installing their planned fence along the record boundary line. He obtained that order ex parte with the filing of this litigation on November 2, 2009.
38. In about 1998, Mr. Doucette acquired a flagpole from his neighbor. At some point around 2007, Mr. Doucette built and installed a frame to support the flagpole, which was the last thing he did to improve the Disputed Area. The flagpole was positioned in the Disputed Area, just to the west of the record boundary line, as depicted on the 2007 Paulson plan.
39. The real estate taxes on the Disputed Area have been paid by the Nix family, as part of their payments of the municipal taxes on the Nix property, during their entire ownership of the Nix property.
It is well settled in Massachusetts that to establish title by adverse possession to land owned of record by another, the claimant must show proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Lawrence v. Concord, 439 Mass. 416 , 421 (2003); Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G. L. c. 260, § 21. To resolve the adverse possession claim made by Mr. Doucette, I apply the decisional law of adverse possession to the facts I have found in light of the credible evidence at trial. I start with the foundational premise that it is the plaintiff who carries the burden to prove, by a preponderance of the evidence, continuous, hostile, open, actual, and exclusive use of the Disputed Area for twenty years. The burden of proof for adverse possession rests entirelyas to each element--on the person claiming title to land based on adverse possession. Lawrence, 439 Mass. at 421; Mendoca, 354 Mass. at 326. Here, the burden is on Mr. Doucette to prove continuous, hostile, open, actual, exclusive and adverse use of the Disputed Area for no less than twenty years. He has not come close to carrying his burden.
1. Septic system
Mr. Doucette argues that the septic system is located in part within the Disputed Area. Installation and use of the septic system within the Disputed Area could, if appropriately shown, satisfy some of the elements of the adverse possession, although with this particular use, given its largely subterranean character, the task of showing the obviousness of the adverse use may be rather daunting. Here, however, I am unable to find from the evidence I credit that any physical component of the waste disposal system actually extends into the Disputed Area. The burden of proof extends to all necessary elements of adverse possession and the claimant must establish as many facts as possible to sustain his burden. Lawrence, supra at 421. None of the evidence or facts established at trial really proves to me how much, if any, of the septic system installed in 1991 or 1992 extends into the Disputed Area. We know that Richard Gath installed a new septic system on the Doucette property at some point in 1991 or 1992, and that he was not licensed by the Town of Wilmington to perform septic system work at the time he installed it. As a consequence, there are not credible conclusive records, such as surveys or engineered plans, which help position the septic system components on the site. No such records exist at the local Board of Health.
According to Ms. LeClair, much of the Doucette backyard and a portion of the Disputed Area were unearthed by Mr. Gath in connection with his septic system installation. But none of the photographs produced as evidence were clear enough to show how much, if any, of the septic system is actually within the Disputed Area. The Paulson plan of 2007 fails to establish any better position in this regard. There are no easily observed indications on the lands surface of any underground system components in or near the Disputed Area. That there may be some subsurface extension of some of the redone septic system components reaching onto the Disputed Area is certainly possible, but I lack adequate proof to make any such finding. The only finding I can make is that there is nothing definitive showing on the surface within the Disputed Area. If any of the elements is left in doubt the claimant cannot prevail. Holmes v. Johnson, 324 Mass. 450 , 453 (1949). I conclude that the septic systems location was not established at trial.
To the extent the septic system does lie within the Disputed Area (something decidedly not proved to me), Mr. Doucette has not acquired any prescriptive rights to keep and maintain such an encroachment. It is undisputed that the septic system was installed, at the earliest, in 1991. This action commenced in 2009, which would put the septic system installation as having been done at a time that does not satisfy the statutory twenty-year period.
There was testimony that there was, prior to the septic project, some tank underground that served to hold grey water effluent. This tank was removed when the septic system rebuild took place. In fact, this old tank appears to have gone bad at some point in around 1991 or 1992; Mr. Nix, doing some digging at the rear of his land, encountered water in the ground which turned out to have been leaking out of the grey water tank. He called upon Mr. Doucette to relocate this failing tank off of what Mr. Nix considered to be his land. I am not convinced that this tank in fact was located over the property line, although it certainly was near to it. I do not find in the credible evidence a clear basis to determine just where this tank was located, and I am unable to determine that it was actually in the Disputed Area, although it was somewhere in the general vicinity. In any event, for the purposes of the case before me, I do not attribute any real weight to this tank, because it was located entirely beneath the surface, served by pipes also not visible above-ground, and, for most of its existence, until the Mr. Nix digging led to his discovering the leak, the tank was buried and was not capable of giving any outward indication that it existed under the earth. With nothing obvious to anyone, including the record owners, that the tank existed underground, there is nothing about its presence, even if over the record line, which would have given rise to any rights on the part of Mr. Doucette. I conclude that the grey water tanks presence does not supply the plaintiff with any rights in the Disputed Area.
2. Fill Project
Mr. Doucettes fill project does evidence actual use of the land, including, as to some of the fill, part of the Disputed Area. However, the filling by Mr. Doucette fails to meet the requisite twenty-years of continuous use. The credible evidence shows me that, at some point in or after 1991-1992, after his hip replacement surgery and roughly nine months of physical therapy, and after Mr. Gaths septic system installation, Mr. Doucette began the task of improving portions of his land, including portions of the Disputed Area, with what may have been as much as sixty cubic yards of fill. This he procured over time, getting the material from contractors working elsewhere needing to dispose of it, often in exchange only for beer and tonic for the workers involved. When fill came to his property, Mr. Doucette gradually and over time would use it to level and raise the topography; some of this work took place in the Disputed Area. While these efforts may be adequate evidence of his improvement and actual possession of the Disputed Area, the timing of this project does not give rise to rights. Mr. Doucette did not place this fill over a continuous twenty-year period. Hewitt v. Peterson, 253 Mass. 92 , 94 (1925) (nineteen years, eleven months and five days insufficient). When this case commenced on November 2, 2009, the filling was underway for far less than the requisite twenty years. I conclude that, given the timing as I have found it to be, the fill project is by itself a legally insufficient basis for a finding of adverse possession.
3. The Dog Run
Mr. Doucettes use of an overhead wire run for his dog, Moose, does not give rise to the required level of actual use. Additionally, this use fails by itself, even were it to be otherwise adequate, to satisfy the requirement that there have been twenty-years of continuous use. Moose lived for 15 years, starting in 1984. I have considered whether the use of the dog run however, if coupled with the use undertaken to place fill in the Disputed Area, discussed above, could satisfy the twenty-year requirement, running from 1984 to 2009. I recognize that for purposes of obtaining adverse possession it is not necessary that the property be used for a single purpose for the entire statutory period. Lebel, 29 Mass. App. Ct. at 302.
The proof fails, however, as a factual matter. I cannot and do not find that the use of the overhead dog run wire took place in any regular or obvious way in the Disputed Area. The evidence I find persuasive about where the dog was allowed to roam was conflicting at best. Mr. Doucette testified the dog was allowed to run right out beside the back door. Nicole LeClair testified and depicted a rectangular area that included a portion, but not all, of the Disputed Area. Ms. Doucette later testified to the contrary--that she recalled the area depicted by Ms. LeClair to be inaccurate, and that the dog had access to a location much smaller and closer to the Doucettes northern boundary line. Even assuming that using an overhead wire run to position a dog within land of another owner would suffice to show dominion and control over that area by the dogs owner, I am unable to say, as trier of fact, that that happened in this case. Where Moose was allowed to roam is a question of fact, and I find that Moose on the run had no regular, real access to the Disputed Area. The location of the clothesline and pole which seems to have been a successor to the pole which supported the dog run wire shows up in later photos as plainly outside the Disputed Area. I am led to find that the dog run did not position Moose so that he regularly was confined to, used, or occupied the Disputed Area, and that all fixed components of the dog run were located outside of the Disputed Area. The dog run does not form a basis for the plaintiffs claim of adverse possession.
4. Storage of ladders, construction equipment, and a boat.
Mr. Doucettes reliance on what he characterized as his on and off storage of ladders and construction and other equipment and materials, and, at times, a boat, does not rise to the required level of actual and continuous use. I do understand that entirely uninterrupted use is not in all cases essential. In appropriate cases, uses which are seasonal may establish adverse possession. Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961); Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990). Here, off-season storage of a boat could qualify as an appropriate seasonal use, but Mr. Doucette fails to establish, as to most of the requisite period, where exactly the boat was kept when not in water. Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (The definite description of [adversely possessed land] which would be necessary for a valid grant, must be supplied from evidence of actual use. It must be explicit and not left to inference or implication.). The evidence which I believe fails to establish that there was any equipment or other personal property kept in the Disputed Area continuously or for anything approaching the required length of time. I particularly credit the evidence from next door neighbor Mr. Jodar, and rely on it to find that this equipment was kept near Mr. Doucettes house, on the side of it near the Jodars, and not way back in the Disputed Area. Until very late, really only in the year or two leading up to the 2007 dispute about the items placed by Mr. Doucette in the Disputed Area, were these items not kept regularly alongside the house. If some of the equipment was located during this lengthy period in the Disputed Area, something I doubt, it would have been only briefly and temporarily. Acts of possession which are few, intermittent and equivocal are insufficient to serve as a basis for adverse possession. Kendall v. Salvaggio, 413 Mass. at 624.
Uses proved up by the claimant must be sufficient to demonstrate control and dominion over the claimed land, with the nature, extent, and intensity required by our law to establish adverse possession. Our cases make clear that the character of the possession must, in the circumstances of the case, be of the type one would associate with ownership. Peck v. Bigelow, 34 Mass. App. Ct, 551, 553 (1993) (lawn mowing, leaf raking, installation of a henhouse, clothesline and sandbox, maintenance of a compost and lumber pile, pruning and removal of dead trees, and holding of picnics on disputed land not sufficient to prove actual use). Mr. Doucette argues that he did periodic trimming of weeds, removal of some dead trees, mowing of lousy grass, raking of leaves, and shoveling of snow. Determin[ing] whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). According to Mr. Doucette, he liked to trim stuff so that everything could live in harmony. The level and scope of activity in which he engaged does not rise to the level of change or improvement required to prove actual possession. Mr. Doucettes periodic, limited, short-lived cleaning up, trimming, and raking of leaves, does not prove to me, as trier of fact, anything near the level and character of use required to prove adverse possession.
To succeed on a claim of adverse possession, the claimant also must demonstrate that he or she used the property exclusively. Lawrence v. Concord, 439 Mass. at 421 (2003); Kendall v. Selvaggio, 413 Mass. at 621-622 (1992). If the claimant uses the disputed land together with others, including the record owner, that will defeat the adverse possession claim. As I have found, the Disputed Area was at no time enclosed or fenced, and there was no physical barrier to use of the Disputed Area by the parties, their families, or others in the neighborhood. I find that members of the Nix family came onto the Disputed Area with some regularity; the children in particular, and the adults as well, did make use of the Disputed Area for passage to the Doucette property and home, and to reach other destinations on the Canal Street side of the neighborhood. The Nixes also periodically raked leaves and engaged in landscaping, trimming, and clean up in the Disputed Area over a number of seasons, starting around 1989 or earlier, when the Nix property was owned by the Wolffs, their relatives. The Nixes activities in the Disputed Area, to which they held record title, demonstrates that, at most, any similar activities by Mr. Doucette in the Disputed Area were carried out in parallel with the true owners. This makes any dominion or occupation of this sort by Mr. Doucette nonexclusive, and so legally incapable of meeting the plaintiffs burden in proving adverse possession. I conclude that these claimed activities by the plaintiff means that Mr. Doucette did not make exclusive use of the Disputed Area.
Claims of adverse possession are generally disfavored. The true owner of land may be deprived of its rights only upon a clear showing that adverse possession has been established. Tinker v. Bessell, 213 Mass. 74 , 76 (1912) (The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his rights except upon clear proof). The definite description of [adversely possessed land], which would be necessary for a valid grant, must be supplied from evidence of actual use. Id. Mr. Doucette has failed to establish with the needed precision the land which he alleges he used exclusively to achieve title by adverse possession. Although the Disputed Area may be clearly understood by review of the 2007 Paulson plan, what is left unconvincing and dubious is whether Mr. Doucettes activities of claimed adverse use actually were carried out by him or on his behalf within the Disputed Area.
I conclude that the plaintiff has failed to carry his burden of proving what the law requires him to prove to establish adverse possession. I will direct entry of a judgment in the defendants favor, establishing that she holds her record title free of any title interest of the plaintiff, and mandating that he stay off the Disputed Area and keep it free and clear of any of his personal property.
[Note 1] Tracy Nix was the husband of defendant Sonia Nix and with her owned the parcel of land at 18 Grand Street. He passed away during the pendency of this action on August 9, 2012, leaving Sonia Nix as the sole owner and defendant. The pleadings name Mr. Nix as Tracy although conveyancing documents in the record spell his given name as Tracey. The parties concur that Ms. Nix has succeeded to full ownership of the disputed land following the death of her husband.
[Note 2] The Disputed Area is that shown as Encroachment on the August 10, 2007 plan (2007 Planor 2007 Paulson plan) drawn by John B. Paulson, Trial Exhibit 44.
[Note 3] I note an apparent difference between the area of the land said to have been conveyed to the Voles by this Voles Deed, 36,500 square feet, and the total area of the two lots shown on the 1982 Morris Plan, 36,900 square feet. I do not dwell on this inconsistency, because the parties through counsel have agreed for purposes of this case that they each respectively hold their record titles to the two parcels as shown on the 1982 Morris Plan. They have tried this case on a claim of adverse possession only, the plaintiff accepting that the record title to the Disputed Area stands in Ms. Nix.
[Note 4] The courts (Grossman, J.)s ruling on summary judgment is reflected in the docket entry made that day, as follows:
The defendant Sonia Nix ("defendant") has filed a Motion for Summary Judgment in which she has alleged that an entitlement to summary judgment on all claims set forth in the plaintiff's complaint and on her counterclaim for trespass. The dispute concerns a 909 +/- square foot parcel of land ("Disputed Area") in Wilmington, Massachusetts. David Doucette ("plaintiff"), an abutter to the defendant's property, asserts ownership to the Disputed Area by adverse possession. The defendant, however, argues that the plaintiff is unable to establish the requisite elements for adverse possession and that she is, as a consequence, entitled to summary judgment on a trespass claim. This court concludes, however, that there remain outstanding genuine issues of material fact that preclude the relief sought by the defendant. Consequently, the Defendant's Motion for Summary Judgment is hereby DENIED. Summary judgment is appropriate when "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). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law that controls the outcome of the issue determines which facts are material for the purpose of summary judgment. Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993). A corollary to the moving party's burden is that the court is to "make all logically permissible inferences" from the facts in the non-moving party's favor. Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, "the right of a party facing summary decision to have the facts viewed in a favorable light. . . does not entitle that party to favorable decision." Catlin v. Bd. Of Registration of Architects, 414 Mass. 1 , 7 (1992). Lastly, where the moving party does not bear the burden of proof at trial, it may either submit affirmative evidence negating an essential element of the non-moving party's claim, or show that "proof of that element is unlikely to be forthcoming at trial." See Flesner v. Technical Communication Corp., 410 Mass. 805 , 809 (1991), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).
Upon consideration of the written submissions and oral arguments thereon, this court concludes that there remain outstanding genuine issues of material fact. For example, one such issue concerns whether the plaintiff's use of the Disputed Area was actual and continuous for the duration of the statutory period. The defendant alleges that the Disputed Area was "wooded/and or overgrown" when she moved to the property and that any actual use by the plaintiff did not start until 1991 at the earliest-when the plaintiff began a fill project in the Disputed Area. If so, any use by the Plaintiff would be insufficient to satisfy the requisite statutory twenty (20) year period for adverse possession. However, the plaintiff asserts that only the land on the defendant's side of the wall was overgrown, and that he has made use of the Disputed Area in various ways continuously since 1983. It is still unclear exactly what the state of the Disputed Area was prior to the fill project, and as such, whether there was "actual use" of the area prior to that time. These matters will require further development at trial. In view of the foregoing, Defendant's Motion for Summary Judgment must be DENIED in all respects.
Nothing in the subsequent proceedings in this case, including in the evidence heard at trial, convinces me that the courts rulings on summary judgment was anything but correct.