JIMMIE BEENE v. STEVEN SILVA and FAITH SILVA.

Introduction

The parties to this case are neighbors in Townsend — plaintiff Jimmie Beene at 96 Main Street and the defendants, Steven and Faith Silva, next door at 94 Main Street. Two issues divide them, which they have brought to this court for resolution. The first is the location of the record boundary between the two properties. The second is, once the record boundary line has been adjudicated, whether a small area of land beyond that line has become Mr. Beene’s by adverse possession. Each side has also asserted minor damage claims against the other, dependent upon who wins the “adverse possession” question. Mr. Beene’s arises from damage to a sprinkler head; the Silvas’ from Mr. Beene’s removal of shrubs from the disputed area. [Note 1]

The first issue — the record boundary — is easily decided in favor of Mr. Beene’s position and, due to the absence of properly supported contrary evidence at trial, was not seriously contested by the Silvas by the time the trial concluded. [Note 2] Mr. Beene employed a licensed surveyor, Michael Martorella, who testified regarding his survey and the research and field work supporting his conclusions. A copy of that survey is attached as Ex 1. [Note 3] I listened carefully to his testimony, which included a detailed description of his methodology and findings, and find them well-founded, credible and persuasive. The Silvas had a survey done, which differed from Mr. Martorella’s by inches, but their witness at trial (Marc Shuman) was not the surveyor who did that work, was not a licensed surveyor himself, did not locate all the monuments and other points of reference found and relied upon by Mr. Martorella, and (as the defendants themselves concede) “was not able to provide testimony relative to the calculations that were done by his employer in its determination of the record boundary line.” Defendants’ Post-Trial Brief at 2 (May 15, 2014) (emphasis added). I thus find that the record boundary line is the line shown on Ex. 1 (the Martorella survey) and, accordingly, that Mr. Beene owns the 58 square feet at the back of the properties (Area B on Ex. 1). [Note 4]

The bulk of the trial focused on Ex. 1’s “Area A” — the 174 square foot area between the now-determined record boundary line and the edge of the Silvas’ driveway — which Mr. Beene claims by adverse possession. He has never fenced it or bordered it with plantings of any kind. He has never parked there, stored anything there, nor built any type of structure there. Rather, his claim is based, solely, on his allegedly having mowed, watered, seeded, and fertilized this area for over twenty years, allegedly exclusively, and his testimony that neither the Silvas nor their predecessors have ever used that property themselves. [Note 5] For their part, the Silvas assert that Mr. Beene’s activities amount only to periodic mowing and occasional watering and fertilizing incidental to maintaining his own lawn — nothing more than an extra swipe or two of his mower over to the driveway edge, a handful or two of grass seed that, over the years, may have gone over the record boundary line, and the far sweep of a sprinkler or hose watering the Beene lawn whose spray may have reached the Silvas’ land. Moreover, the Silvas argue that these activities by Mr. Beene were not exclusive because they have regularly mowed the area, opened their car doors onto it, occasionally parked their camping trailer there, and regularly walk across it to access their mailbox. See Ex. 1 (mailbox location).

The case was tried before me, jury-waived. Based upon the testimony and documents admitted at trial, my assessment of the credibility, weight, and inferences to be drawn in light of that evidence, and as more fully explained below, I find and rule that Mr. Beene has proved that the record boundary is where he asserts it is (in the location shown on Ex. 1), but that he has failed to show adverse possession of any portion of the area beyond that boundary. That claim is thus DISMISSED in its entirety, with prejudice, and the Silvas are awarded $69.96 in damages plus accrued interest for the trees Mr. Beene cut down. [Note 6]

The Legal Standard for Adverse Possession

“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). “All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, the acts of the wrongdoer [the adverse claimant] are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof of an actual occupancy, clear, definite, positive, and notorious.” Cook v. Babcock, 11 Cushing [65 Mass.] 206, 209–10 (1853). The claimant has the burden of proof, and “[i]f any of these elements is left in doubt, the claimant cannot prevail.” Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968) (internal citations omitted).

In determining 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 (1993) (internal quotations and citations omitted). Such use is established only when the claimant’s use and enjoyment of the property is such that “people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership.” Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-157 (1979) (citing 3 Am. Law of Property § 15.3, at 765-766 (1974)). “Acts of possession which are ‘few, intermittent and equivocal’ are insufficient to constitute actual use necessary for adverse possession.” Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (internal citations omitted); see also Cook, 11 Cushing [65 Mass.] at 210 (“[A]cts must not be merely occasional, partial or temporary in their nature.”). Erecting a fence, installing paving, and making other permanent modifications to the land are typically accepted as sufficient acts of possession as long as they are not permissive. See LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490–92 (1938). Actions less obvious and permanent than these are generally not enough. “Persons claiming title by adverse possession must establish that they made either permanent improvements or significant changes to land.” Cyr v. Simmons, 13 LCR 456 , 460 (2005), citing Peck, 34 Mass. App. Ct. at 556. “Where courts have recognized less substantial activities as counting towards adverse possession, such activities were associated with others which together showed ‘control and dominion.’” Id. (emphasis added).

To prove the use to be adverse, “the activities must be of such an open and notorious nature to put the true landowners on notice to bring an action to recover their land.” Cyr, 13 LCR at 460, citing Phipps v. Crowell, 224 Mass. 342 , 343 (1916). See also Houghton v. Johnson, 71 Mass. App. Ct. 825 , 842 (2008). “The nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right.” Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004) (emphasis added). Moreover, exclusive “use must encompass a ‘disseisin’ of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass.App.Ct. at 557.

Finally, the acts must continue, uninterrupted, for twenty years or more. See Mendonca, 354 Mass. at 326. Though “continuous use does not necessarily mean constant use,” the claimant must establish a use that is regular throughout the statutory period. Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870) (internal citations and quotations omitted).

Facts and Analysis

These are the facts as I find them after trial.

Mr. Beene purchased the 96 Main Street property in 1985 and has resided there ever since. The Silvas purchased the adjacent property, 94 Main Street, in 2006 and also reside there. The area Mr. Beene claims by adverse possession is a narrow 174 square foot strip of dirt and grass in front of the houses, just over the record boundary line, ending at the edge of the Silvas’ graveled driveway. See Ex. 1 (area “A”). Roughly speaking, the record boundary line ends where the Beene lawn ceases to be flat, and the strip in question slopes downward at a slight angle towards the Silvas’ driveway from that line. See Trial Ex. 6 (illustrative photograph).

The Silvas claim that Mr. Beene’s activities on the disputed strip did not rise to the necessary level of “control and dominion” to support his adverse possession claim, that they were not exclusive, and that they were not continuous for twenty years or more. I agree.

Those activities were these. When Mr. Beene first purchased his home (with his now ex-wife Charlotte), his yard, along with some of the disputed area, was overgrown. [Note 7] After mowing down his lawn and continuing that mowing to the driveway edge, Mr. Beene continued to follow this practice and did some occasional seasonal fertilizing. [Note 8] Although Mr. Beene claims to have seeded and watered the disputed area for more than twenty years, I find this assertion unconvincing. Until recently, when the present dispute arose, the Silvas had never seen Mr. Beene plant grass seed or water the disputed area, and this is corroborated by Charlotte Beene’s testimony that when she lived at 96 Main Street (from 1985-1991) they did not regularly water the yard and their lawn never required seeding.

Mr. Beene also points to several other acts that he contends demonstrate his “control and dominion” of the property.

The first had its origin in 2011 when the Silvas planted three lilac bushes on that side of the driveway. Although Mr. Beene asked the Silvas to remove the lilacs shortly after they planted them, he did nothing at that time when the Silvas did not comply. It was not until April of 2012 that Mr. Beene again demanded that the Silvas remove the lilacs, and when they didn’t do so, threatened to cut them down. Mrs. Silva, who was uncertain whether the entirety of the fast-growing bushes were located on their property or had strayed onto Mr. Beenes’, eventually removed them, not in acknowledgement of Mr. Beene’s claim, but rather because the lilac bushes were expensive and she was afraid that Mr. Beene would damage them if they were not relocated.

The next act arose in May 2012, when the Silvas planted two dwarf pine trees in the disputed area. They cost $69.96, which I find to be their value. When Mr. Beene saw them, he threatened to cut them down if the Silvas did not remove them immediately. Despite the fact that the Silvas had notified Mr. Beene that a surveyor was coming at the end of the week and warned him not to remove the trees until then, Mr. Beene refused to wait. He followed through with his threat and cut down the trees.

Shortly after, the Silvas dug a ditch on that side with the intent of widening their driveway. Without speaking to the Silvas about the ditch, Mr. Beene filled it in while the Silvas were at work.

Mr. Beene is correct that these acts were certainly assertions of right. But all of them are well inside the twenty year period that adverse possession requires. Indeed, they occurred less than a year before this case was brought.

Later in 2012, another incident arose, this time regarding an underground sprinkler system installed by Mr. Beene in 2007. Their heads were flush with the ground, covered by grass, and thus hard to see. Unbeknownst to the Silvas, one of the sprinkler heads had been placed on the disputed strip at the corner of the Silvas’ driveway. [Note 9] The Silvas did not know of its existence until the surveyors involved in the present dispute discovered it in the course of their work. After this discovery, the Silvas were successful in getting Mr. Beene to move the sprinkler head to the other side of the record boundary line. The Silvas success in having the sprinkler head relocated off the disputed area undercuts Mr. Beene’s claims of “control and dominion” over the land and calls into question the credibility of his other assertions.

Of significance is what Mr. Beene did not do during his nearly 28 years residing at the 96 Main Street property. Mr. Beene never planted anything, such as the Silvas’ lilac bushes and pine trees, in the disputed area. Nor did he install a fence, wall, or any similar permanent structure on the disputed area. Additionally, he never stored anything there or parked any vehicles there. Other than his threats against the lilac bushes and dwarf pine trees made in April and May of 2012, less than a year before this case was filed on February 11, 2013, Mr. Beene never had a conversation with the Silvas where he asserted or implied that the disputed area was his property. Fairly seen, all he did was cut the grass a few feet over his record boundary line to the edge of the Silvas’ driveway at the same time he mowed his own grass — the sort of thing that neighbors often do for each other with no adverse intent.

Moreover, Mr. Beene failed to prove his exclusive use of the disputed area, a further prerequisite to a claim of adverse possession. Such use must amount to a “disseisin” of the record owner. Peck, 34 Mass.App.Ct. at 557. Since the Silvas began residing at their Main Street property, they also mow the disputed area, typically once a week. They also use the disputed strip in other ways, such as crossing it daily to access their mailbox. When the driveway needs to be cleared of snow, the Silvas use their snow blower, shooting the snow onto the disputed strip or piling it there when they shovel. In addition, the Silvas have a camper and frequently park it in the driveway. During the summer, they open the camper to air it out, extending the legs into the disputed area.

Mr. Beene’s mowing is insufficient to establish adverse possession in the circumstances of this case. The area mowed was only a few feet wide at its widest point. See Ex. 1. To any objective person, Mr. Beene’s mowing would not seem adverse, but simply a neighbor assisting a neighbor or, at most, a neighbor who did not want to leave a line in the grass at the edge of his lawn. In these circumstances, Mr. Beene’s lawn mowing is simply not enough to establish title by adverse possession. See Cyr, 13 LCR at 461 (citing LaChance, 301 Mass. at 491 and Peck, 34 Mass. App. Ct. 556 -557); see also Gaylord v. King, 142 Mass. 495 , 503 (1886).

Conclusion

For the foregoing reasons, the record boundary is established in the location shown on Ex. 1, Mr. Beene’s adverse possession claim is DISMISSED in its entirety, with prejudice, and the Silvas are entitled to judgment in the amount of $69.96 (the value of the trees he cut down) plus interest accrued from and after January 14, 2014 (see n. 6).

Judgment shall enter accordingly.

exhibit 1