The plaintiff Thomas P. Cappelluzzo has lived next door to the Plum Island Grille (the Grille) and a seasonal sandwich shop that preceded the Grille, since he purchased his property on July 29, 1993. He claims, by adverse possession, ownership of a narrow, pie-shaped parcel of land in the record ownership of the owner of the Grille property. In the alternative he claims rights of easement by prescription. The owners of the Grille, wishing to make use of the disputed parcel for their own purposes, deny that the plaintiff has met his burden of proving the elements required to establish ownership by adverse possession or prescriptive easement.
The plaintiff commenced this action on September 16, 2013, seeking to establish his rights to the disputed parcel by adverse possession or prescriptive easement, and seeking a determination that the defendants were trespassing on his land. A temporary restraining order was issued by the court (Piper, J.), and was followed by the issuance of a preliminary injunction by the court (Grossman, J.) preserving the status quo by enjoining the defendants from ousting the plaintiff from the disputed parcel. The defendants counterclaimed for trespass and for interference with advantageous relationships. [Note 1]
I conducted a view of the plaintiffs and defendants properties on October 26, 2015, and a trial was held on October 27, 2015.
For the reasons stated below, I find and rule that the plaintiff has failed to establish ownership by adverse possession, but that he has established certain rights of easement by prescription.
Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:
1. The plaintiff Thomas P. Cappelluzzo (Cappelluzzo) purchased the property at 5 Sunset Drive, Newbury, on Plum Island, (the Cappelluzzo property) on July 29, 1993. The Cappelluzzo property is improved by a single family home in which he has resided since August, 1993.
2. The defendant Rinkoo-Tei Realty, LLC, owns the property at 2 Plum Island Boulevard, Newbury, on Plum Island, (the Grille property).
3. The defendant Plum Island Grille, Inc. operates a restaurant and bar at the Grille property.
The Properties and the Disputed Area
4. The Cappelluzzo property and the Grille property share a common record boundary line, 71.20 feet in length, which forms the southern boundary of the Grille property and the northern boundary of the Cappelluzzo property.
5. The record boundary line between the two properties is not parallel to the house on the Cappelluzzo property, but rather runs at a diagonal to the side of the house. The boundary line, where it meets Sunset Drive, is several feet to the south of the northern side of the house on the Cappelluzzo property. It passes the northerly front corner of the house within about one foot of the corner of the front porch, and by the time it reaches the rear of the Cappelluzzo property, it is several feet away from the back of the house. [Note 2]
6. When Cappelluzzo purchased the Cappelluzzo property, the house was unoccupied, and needed a significant amount of work to make it habitable, including the installation of a heating system. Cappelluzzo commenced work immediately for much of this work, removing debris from the house, and installing a heating system, and moved into the house in August, 1993.
7. Within two or three weeks of purchasing the property, Cappelluzzo sawed out part of the foundation in the location of a basement window, and installed a steel bulkhead with two doors on the northern side of the house, facing the Grille property. This was done partly to facilitate the removal of debris and the installation of the oil tank for the new heating system.
8. The bulkhead as installed in August, 1993, is less than one foot away from the boundary line between the two properties. [Note 3] With the bulkhead doors open, at least one of the doors (the door closer to the front of the house) comes within an inch or two of the record boundary line. It would be impossible to walk out of the basement of the house through the open bulkhead doors without walking onto the Grille property. To go from the bulkhead doors on the shortest route to the street line of Sunset Drive takes one exclusively over the disputed area of the Grille property.
9. There is a utility pole at the front of the Grille property at the edge of Sunset Drive approximately six feet northerly of the boundary line where it meets Sunset Drive. The utility pole was present when Cappelluzzo purchased his property in 1993, and is still present in the same location.
10. Electric, cable TV, and telephone lines servicing the Cappelluzzo property run from the utility pole. The lines are mounted on the pole, run down the side of the pole; from the pole the lines go underground at the base of the pole, and then resurface at the northerly side of the house, where an electric meter, and junction boxes for telephone and cable are mounted on the wall a few feet in front of the bulkhead. Given the starting point at the utility pole, and the ending point at the side of the house, I find that the electric, cable and telephone lines run for almost all of their length under the disputed area of the Grille property.
11. An oil filler line is also mounted on the northerly side of the house. Accessing the oil filler from Sunset Drive would require walking over the Grille property, just northerly of the boundary line between the two properties.
12. In order to access the electric meter or the oil filler cap, it is necessary to walk over the Grille property, just northerly of the boundary line between the two properties.
13. In approximately 1995, Cappelluzzo had a propane tank installed at the rear of the house on his property to provide natural gas for cooking purposes. The propane tank is accessed, for filling purposes, by walking over the disputed part of the Grille property.
14. At some point in the last ten years (neither of the parties could be more specific), the septic system servicing the Cappelluzzo property was replaced by a newly installed town sewer. The town of Newbury installed a sewer along Sunset Drive, and connected both the Grille property and the Cappelluzzo property to the sewer in Sunset Drive. There is a sewer vent servicing the Cappelluzzo property located near the street line of Sunset Drive, but on the Grille property. It is apparent that the sewer line running from the sewer in Sunset Drive to the house on the Cappelluzzo property must also run under the Grille property. There is no evidence that the septic system had been located other than on the Cappelluzzo property.
15. In April, 2007, the owners of the Grille property, apparently intending to erect a fence on the boundary line between the two properties, had a wooden fence installed. The fence runs from the rear southernmost corner of the Grille property where it meets the Cappelluzo property, directly towards the utility pole, but ends a few feet short of the utility pole at the front. Thus, the fence is entirely on the Grille property. Following the line of the fence from rear to front, at Sunset Drive it roughly coincides with the utility pole, about six feet north of the record boundary line between the two properties, and forms a narrow triangle with the boundary line. This triangular parcel, formed by the record boundary line, the fence, and the front line at Sunset Drive, is the disputed area to which Cappelluzzo claims title by adverse possession. [Note 4]
16. The Grille property owners had the property line surveyed before having the fence installed, and claim to have intended the fence to be located on the property boundary. The owners of Grille property claim that Cappelluzzo, a Newburyport police officer (retired at the time of trial) intimidated the fence installer into locating the fence northerly of the actual boundary line, and Cappelluzzo claims that he believed the fence to have been placed on the record boundary line. I find that whether by mistake or for some other reason, the fence was located northerly of the actual record boundary line for reasons that did not include permission by the Grille owners to Cappelluzzo to use the disputed area. Permission from the Grille property owners to Cappelluzzo to use the disputed area was never asked for, given or implied.
17. The soil on the Cappelluzzo property is extremely sandy; there is a grass lawn on the western (front) and northern side of the Cappelluzzo property that consists of scrubby beach grass. This lawn has existed continuously since 1993 on the Cappelluzzo property and has extended for that entire time onto the Grille property up to the edge of the paved parking lot, and later the fence, on the southerly boundary of the Grille property. The lawn is patchy and unkempt, with many bare spots, and at times over the years, as demonstrated by the photographic exhibits, has been left uncut for lengthy periods of time.
Activities in the Disputed Area
18. Cappelluzzo did not plant the grass on his front lawn or the grass that extends to the disputed area on the Grille property. He has not installed any plantings or done landscaping of any kind in the disputed area, except limited maintenance of the lawn by using a borrowed weed whacker on the lawn, he claims, three or four times a year. I do not credit this testimony as to the frequency of lawn maintenance, as the length of the grass shown in the disputed area and on his lawn as depicted at various times over years in the photographic exhibits, demonstrates that Cappelluzzos maintenance of the grass in the disputed area is more sporadic than he claims.
19. Since the installation of the bulkhead in August, 1993, Cappelluzzo has taken his trash out once a week through the bulkhead, and over the disputed area to the street line at Sunset Drive. Cappelluzzo uses the bulkhead to remove other large items from his house, and uses the same route, but not on as regular a basis as for the removal of trash.
20. Since it was installed in August, 1993, Cappelluzzos heating oil tank has been filled by access to the oil filler cap on the side of the house, reached by walking and dragging a line from the front at Sunset Drive, over the disputed area, once a month every winter.
21. Cappelluzzo shovels a path over the disputed area through the snow in winter to facilitate oil deliveries, propane deliveries and trash removal. There is no other path constructed over the lawn over the disputed area.
22. Similarly, since about 1995, propane for cooking has been delivered to the Cappelluzzo property by dragging a line over the disputed area to fill the propane tank at the rear of the property. This is done a few times a year.
23. Cappelluzzo has stored construction materials and debris at various times in the disputed area, near the present fence to the rear of the Cappelluzzo property behind the bulkhead. Although Cappelluzzo testified that Ive always put things there, [Note 5] with respect to the construction materials stored in the disputed area, I find his implication that material has been stored in the same location continuously for twenty years to be equivocal, and I do not credit it. I find that construction material has been stored in that location on occasion, but not continuously for a period of twenty years. I note that prior to the erection of the fence in 2007, material now located against the fence would likely not have been in exactly the same location, and I find that there was insufficient evidence to conclude that it was always stored in the same location.
24. Cappelluzzo also, every year, leaves the trunk of his Christmas tree, stripped of branches, in the disputed area for a few months following Christmas every year. The trunk is generally the size of a small log.
25. Cappelluzzo has guests at his house park on his front lawn, and they may park as far over as close to the fence on the disputed area. Cappelluzzo testified that this has been his practice since he has owned the property, but he did not offer any evidence as to the frequency with which such parking takes place. [Note 6]
26. Cappelluzzo testified that patrons or employees of the Grille sometimes park on his property and on the disputed area. On two occasions, one prior to 2010 and one in 2010, he had confrontations with such persons. On one occasion he called the police and on another occasion he asked the driver to move the vehicle and it was moved. Cappelluzzo testified that cars were parked on the disputed area four or five times per summer and once or twice per winter. Three police reports admitted into evidence support an inference that on one of these occasions, a car parking on Cappelluzzos property was linked to the Grille, although there is no indication that it was in the disputed area. There was no testimony to support an inference, and I draw none, that these cars were associated with the Grille or that Cappelluzzo ever gave notice to the Grille of such parking other than with respect to the two occasions described above.
Assertions of Ownership by the Grille
27. The current owners of the Grille property purchased the Grille property in February, 1999. Prior to their ownership the property had been operated as a seasonal sandwich shop. After purchasing the property, the defendants enclosed an outdoor deck on the southern side of the Grille property facing the Cappelluzzo property, and they installed a heating system so the Grille could be operated year-round.
28. Mark Friery, one of the principals of the entities that own the Grille and the Grille property, was the only witness for the defendants. He lives elsewhere on Plum Island, and he is usually at the Grille for about an hour each morning before he goes to another job off-island. He is able to observe the Grille property and the Cappelluzzo property when he is driving to and from Plum Island each day, and he is otherwise at the Grille infrequently. [Note 7]
29. Friery has not observed Cappelluzzo taking out his trash, oil or propane deliveries, or other activities on the disputed area by Cappelluzzo.
30. The Grille property owners physical activities on the disputed area have been limited to occasionally picking up litter and rubbish from the Grille property, including the disputed area. [Note 8]
31. On July 8, 2013, the attorney for the Grille property owners sent Cappelluzzo a letter informing him that they had had the property boundary surveyed, that his sewer vent pipe and construction materials were located on their property, and that they intended to relocate the fence to the record boundary line. A copy of the survey (the same survey that has been admitted into evidence as Exhibit 6) was included as an enclosure with the letter. [Note 9]
32. Cappelluzzo did not respond to the July 8, 2013 letter. The defendants attorney followed up with another letter to Cappelluzzo, dated August 9, 2013, in which he informed Cappelluzzo that the Grille owners had obtained a building permit to move the fence (a copy of which was enclosed), and that if they did not hear from him by August 16, 2013, they would go ahead with their plans to move the fence, move his construction materials, and take legal steps to have the sewer vent moved. This litigation followed.
The plaintiff makes claims of ownership of the disputed area by adverse possession and in the alternative argues that he has acquired an easement by prescription. I consider each claim in turn.
Title by adverse possession can be acquired by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). 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), quoting in part Mendonica v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The necessary elements of such possession (include) the obligation to show that it was actual, open, continuous, and under a claim of right or title. Id., at 326. If any of the elements remains unproven or left in doubt, the claimant cannot prevail. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof. Id., quoting Cook v. Babcock, 65 Mass. 206 (1853). The requirement that the use be under a claim of right simply means that the occupancy be with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of every one else. Lawrence v. Town of Concord, supra, at 421, fn. 5, quoting Bond v. OGara, 177 Mass. 139 , 144 (1900).
[C]ourts must look to the physical facts of entry and possession as evidence of an intent to occupy and to hold property as of right. Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992). A judge must look to the nature of the occupancy in relation to the character of the land. Id. The nature and the extent of occupancy required vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. Ryan v. Stavros, supra, quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938). Put another way, the nature of the occupancy and the 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; (for instance) in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose. Sea Pines Condominium III Assn v. Steffens, supra, at 848.
Acts of possession which are few, intermittent and equivocal do not constitute adverse possession. Kendall v. Salvaggio, supra, at 624, quoting in part Parker v. Parker, 83 Mass. 245 , 247 (1861). [T]he determination 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, supra, at 848.
On the facts as I find them, Cappelluzzo has not met his burden of proof to establish his claim of ownership by adverse possession of the disputed area. The evidence falls far short of any showing of occupancy of the disputed area that is continuous for twenty years and is exclusive, open and notorious. Cappelluzzo did not make changes upon the land that constitute such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). The fence delineating the disputed area has only been in place since 2007, far less than twenty years; Cappelluzzo did not place any plantings or physical improvements of any kind in the disputed area, [Note 10] nor did he make any other changes to the land that would tend to put the owners of the Grille property on actual or constructive notice that they had been ousted from the disputed area. A landscaping transformation of land can in some cases be sufficient to put a true owner on notice (see cases cited in Peck v. Bigelow, supra, at 556, and in Sea Pines Condominium III Assn v. Steffens, supra, at 847-848), but the patchy grass as it existed when Cappelluzzo took ownership was not such as to delineate his property or the disputed area from the rest of the Grille property. Cappelluzzo did not make any changes at all to the grass in the disputed area as it existed when he took ownership of his property in 1993, and his maintenance of his lawn and the grass in the disputed area was sporadic at best, with nothing to indicate to any attentive record owner that someone was making changes to the disputed land.
Cappelluzzos placement of construction materials and the seasonal placement of stripped trunks of Christmas trees was also not sufficient to establish adverse possession. For one thing, I do not draw an inference from the testimony that construction material has been in place, and in the same place, continuously for twenty years. While Cappelluzzo testified that he leaves construction materials in the area near the fence to the rear of the bulkhead, he did not sufficiently prove that there has always, or at least continuously for twenty years, been construction material resting in that location, and the materials were likely not in exactly the same location before the fence was erected in 2007. Photographic evidence of the presence of the construction material at certain times does not require a trial judge to believe that the materials were in place for a continuous period of twenty years. Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 969 (1987).
As for the stripped Christmas tree trunks, left in the disputed area for months at a time, I do not find them to be sufficiently an indication of possession so as to give notice to a reasonable record owner that his land is being used to his exclusion. The presence of a small log is not something that one would ordinarily understand as constituting an ouster of the owner.
Even if the construction materials and the Christmas tree trunks were present continuously, they would not serve as a basis for adverse possession. Placement of items on the land that are not attached to the land will ordinarily not support a finding of adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (Placement of picnic table, lounge chairs, swing, sandbox, and clothesline on land, items that were not attached to the land, did not give rise to adverse possession).
Cappelluzzos efforts to occupy the disputed area and oust the Grille owners did not extend to any efforts to pay taxes on the disputed area, which the Grille owners continued to pay in full for their property, including the disputed area. The Grille owners regular payment of taxes over the relevant period, in combination with Cappelluzzos failure to make any attempts to pay the taxes, cuts against Cappelluzzos adverse possession claim. Id., at 556.
Cappelluzzo did make efforts to discourage trespassers on the disputed area, by discouraging parking of vehicles on the disputed area. Discouragement of trespassers can be some evidence of adverse possession when in combination with other acts of disseisin. In Lyon v. Parkinson, 330 Mass. 374 , 380 (1953), the court noted that the defendant adverse possessor always stopped anyone he saw passing over his locus. But in Lyon this was in combination with the complete transformation of previously wild, unimproved land by removal of stumps and trees, cutting of brush, excavation of rocks, installation of rip-rap on a slope, and bringing in loam and planting a lawn. By contrast, Cappelluzzo on just a few occasions in twenty years called the police to remove trespassing vehicles from his property or the disputed area, and did not make any physical improvements or changes to the land in the disputed area. To the extent Cappelluzzo testified that he had cars removed on a more frequent basis, Cappelluzzos testimony, other than with respect to two incidents, was vague. I do not credit that there was sufficient evidence that on those other occasions cars were parked on the disputed area, as opposed to the rest of Cappelluzzos front lawn (for instance, Cappelluzzo testified that damage to lattice work on his front porch, not in the disputed area, was a result of trespassing vehicles), or that there was sufficient evidence tying such vehicles to the Grille except for the two specific instances in which Cappelluzzo testified to a specific connection to the Grille. The adverse use of the record owners land must be exclusive, so as to constitute a disseisin of the record owner. Peck v. Bigelow, supra, at 557. I find and rule that Cappelluzzo failed to make the required showing. [Note 11]
As codified in G. L. c. 187, §2, a claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years. Boothroyd v. Bogartz, 68 Mass. 40 , 43-44 (2007). As with adverse possession claims, the one seeking to establish the prescriptive easement bears the burden of proof on each and every element. Id. Whether the elements of a claim for a prescriptive easement have been satisfied is essentially a factual question for the trial judge. Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009).
Passage Over and Through the Disputed Area
Certain of Cappelluzzos activities on the disputed area are sufficiently open, notorious, adverse, and continuous so as to give rise to a prescriptive easement. Immediately upon purchase of the property on July 29, 1993, he began construction of a bulkhead for access to and egress from his basement, and completed it within about two weeks. The bulkhead itself does not encroach on the Grille property, but the bulkhead door closest to the front of the property comes within just a couple of inches, or perhaps even closer, to the boundary line when the door is open. [Note 12] Significantly, as a result of the close proximity of the bulkhead to the property boundary, it is impossible to exit from the bulkhead with the doors open or enter into the basement using the bulkhead doors without walking over the disputed area. Cappelluzzo testified without contradiction that he has exited through the bulkhead doors and walked over the disputed area to the front of the disputed area in the vicinity of the utility pole, regularly once a week since August, 1993 to take out his trash. He uses the bulkhead doors on a less regular basis to take large items out of the basement. He also testified without contradiction that oil deliveries, which occur once a month each winter, involve the delivery truck pulling up on Sunset Drive at the front of the disputed area, the delivery person walking over the disputed area with a hose, and accessing the oil filler cap on the northerly side of the house. Similarly, he testified that he gets less frequent, but regular deliveries of propane gas in the same manner.
These activities, considered together, are sufficiently open, notorious, and continuous over a twenty year period to establish an easement by prescription, and I find that they are not intermittent or sporadic in nature. The route taken over the narrow width of the disputed area (about six feet wide at its widest point between the utility pole and a point about six feet to its south along the boundary of Sunset Drive) to access the bulkhead and the side and rear of the house, is sufficiently confined to a regular path so as to permit the establishment of an easement by prescription. Compare, Boothroyd v. Bogartz, supra, at 45. Even though there is no physically-defined walkway over the disputed area, the disputed area itself is narrow and amenable to only a narrow, well-defined route from the street to the bulkhead or the side of the house.
One of the owners of the Grille property, Mark Friery, testified that he never witnessed Cappelluzzo crossing the disputed area or carrying things into or out of the bulkhead, and he did not ever see oil or propane deliveries over taking place over the disputed area. [Note 13] He also testified that he is only present at the Grille property regularly early in the morning and that otherwise he is there infrequently. However, that he may not have witnessed Cappelluzzos activities in the disputed area does not defeat Cappelluzzos claim so long as these activities were open and without concealment and were such as could have been seen by a record property owner who was reasonably attentive to activities on his premises. To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious. Foot v. Bauman, 333 Mass. 214 , 218 (1955). Open and notorious use of a property is thus deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not. Lawrence v. Town of Concord, supra, at 422.
I find and rule that the activities of Cappelluzzo and those servicing his property were sufficiently open and notorious, and were sufficiently continuous over a period of twenty years so as to establish a prescriptive easement for a path from Sunset Drive, over the disputed area, to the side of the house, to the bulkhead, and to the rear of the house on the Cappelluzzo property.
There are electric power lines, cable television lines, and telephone lines running from the base of the utility pole at the Sunset Drive end of the disputed area, under the disputed area, and surfacing at the north side of the house, in front of the bulkhead. Except for a distance of about four to six feet between the front porch of the house and the bulkhead, these lines run entirely under the disputed area for a distance in excess of twenty feet. They have been in place at least since Cappelluzzo purchased his property in July, 1993. The presence of these lines would be apparent to anyone observing the Cappelluzzo property, as I found them to be on the view. As an occupied dwelling, Cappelluzzos house is serviced by the usual utilities: electric, cable television and telephone, all of which are sent onto the property from the utility pole at the edge of the street and the disputed area. The junction boxes and conduit on the pole, and the conduit, junction boxes and electric meter on the side of the house are open, unconcealed, and readily observable from the street or from the parking lot on the Grille property (from a point in front of the front end of the fence).
As is noted above, whether the owners of the Grille property actually noticed these utility lines or not is irrelevant as long as they were sufficiently open, notorious and in place for over twenty years, all of which I find and rule that they were. There is nothing inherently hidden about underground utilities to prevent them from providing a basis for an easement by prescription. In Foot v. Bauman, supra, an owner was deemed to have constructive knowledge of an underground sewer line crossing his property because the steep slope and character of the soil of the property using the sewer made it obvious that a septic system would be impractical, and because, given the slope and the existence of a public sewer in the street on the other side of the property in between the property using the sewer and the public street, as well as the existence of manholes, it should have been obvious to the record owner that a sewer crossed his property. Likewise here, utility lines that were visible on the utility pole at the edge of their property, entered the ground on their property and crossed their property to get to the Cappelluzzo property, where they resurfaced, provided constructive, if not actual notice, to the Grille property owners of the existence of the utility lines in the disputed area servicing the Cappelluzzo property.
The sewer line and vent pipe are another matter. Both Cappelluzzo and Friery were aware of the installation of a sewer line servicing Cappelluzzos property. The sewer line was installed by the town of Newbury from a sewer in Sunset Drive, across the disputed area to Cappelluzzos house. There is a sewer vent pipe prominently protruding from the ground near the utility pole, in the disputed area. Neither party was clear on the date the sewer was installed, but both agreed that it was less than the twenty years required for establishment of an easement by prescription. Friery testified that he thought the sewer was installed after the fence was installed in April, 2007. [Note 14] Cappelluzzo testified that the sewer was installed about ten years ago. [Note 15] Thus the sewer line and the vent pipe have not been present continuously for twenty years and their presence cannot provide the basis for a prescriptive easement.
Nor can the installation of the sewer and sewer vent pipe be tacked onto the other utilities so as to ripen their use into one benefiting from a prescriptive easement. [T]he extent of an easement (acquired by prescription) is fixed by the use through which it was created. Glenn v. Poole, 12 Mass. App. Ct. 292 (1981). Even considering an easement by prescription for the other underground utilities to have been established by the time of the installation of the sewer line, which it was not, the installation of the sewer line, especially with a vent pipe protruding out of the ground in the middle of the disputed area, is inconsistent with the limits of the easement established by prescription. Although some variation is allowed in the use of an easement, once established, the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use. Id., at 293, quoting Lawless v. Trumbull, 343 Mass. 561 , 563 (1962). The presence of the vent pipe is substantially more intrusive, and different in kind in its effect on the Grille property, than are the other underground utilities, and therefore it is inconsistent with any easement by prescription established by the presence of the other utilities.
The presence of the construction materials stored by Cappelluzzo in the disputed area does not form the basis for an easement by prescription for the same reason their presence did not form the basis for adverse possession. I find that the storage of the materials was not sufficiently continuous and in the same location for twenty years.
Allegations of Interruption of the Adverse Use
The owners of the Grille property argue that whatever adverse use was being made of the disputed area by Cappelluzzo, such use did not ripen into a prescriptive easement (or title by adverse possession) because the Grille property owners successfully interrupted the adverse uses before the end of the twenty-year period. Friery testified to only limited physical activity by the Grille property owners on the disputed area. He was unable to say whether construction vehicles working on the Grille property parked in the disputed area. [Note 16] The Grille property owners had snow plowed in the winter, but Frierys testimony that, until the installation of the fence in 2007, snow was plowed as far as we could toward the disputed area, is vague and equivocal as to whether snow was plowed into the disputed area, and the photographic evidence is similarly unclear. [Note 17] I find that neither of these activities are sufficiently proven to constitute an interruption of Cappelluzzos adverse use.
The only other physical activity on the disputed area offered by the Grille property owners is that, prior to the installation of the fence in 2007, the Grille property owners would send employees out to pick up litter from the Grille property and surrounding property, including the disputed area. [Note 18] The act of picking up litter and trash from the property being adversely possessed is not a sufficient exercise of dominion to interrupt the adverse possession of the property. See, Ryan v. Stavros, supra, at 263 (removal of papers in the area in question insufficient to interrupt adverse possession).
To support their claims of interruption of Cappelluzzos adverse use of the disputed area, the Grille property owners primarily rely on two letters sent by their attorney. By a letter dated July 8, 2013 (shortly before the twentieth anniversary of Cappelluzzos purchase of his property), the Grille property owners attorney informed Cappelluzzo that he was encroaching on the Grille property, and included a copy of the survey (the same survey that is marked as Exhibit 6) to document the encroachment. The letter also informed Cappelluzzo that the Grille property owners intended to relocate the fence to the record boundary line. [Note 19] Not receiving any response from Cappelluzzo, the Grille property owners attorney followed up with another letter on August 9, 2013, this one informing Cappelluzzo that a building permit for the relocation of the fence had been obtained (a copy was included with the letter), and stating that if they did not hear from him, they would take action to move his building materials and relocate the fence after August 16, 2013. [Note 20]
These actions were insufficient to interrupt Cappelluzzos adverse use of the disputed area. [N]otice to an adverse possessor of the result of a survey, without more, is insufficient to establish such an exercise of dominion over the disputed area as to interrupt adverse possession. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 (1996). Neither was the issuance of the building permit effective to interrupt Cappelluzzos adverse use, especially where Cappelluzzo was not notified of its issuance until after the twentieth anniversary of the advent of the adverse use of the disputed area. See Id., at 541. To stop the running of the statute, the owners entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption. Id., at 541- 542.
For the reasons stated above, I find and rule that Cappelluzzo has failed to establish ownership of the disputed area by adverse possession;
I find and rule that Cappelluzzo has established a right by prescriptive easement to pass and repass on foot over the disputed area for the purpose of access to and egress from the bulkhead on the side of his house and for service access for oil and propane delivery; and he has established a prescriptive easement for presence of the electric, telephone and cable television lines running from the utility pole at the edge of Sunset Drive and the disputed area, under the disputed area and to the north side of the Cappelluzzo house; and
I find and rule that Cappelluzzo has failed to establish a prescriptive easement or other adverse rights with respect to the sewer line and sewer vent pipe in and under the disputed area, or with respect to the construction materials stored in the disputed area.
[Note 1] The count in the counterclaim for interference with advantageous relationships was dismissed without prejudice on subject matter jurisdiction grounds on June 23, 2015.
[Note 2] The record boundary line and its proximity to the house on the Cappelluzzo property are shown on the plan attached to this Decision as Addendum A, which was Exhibit 5 at trial.
[Note 3] Exhibit 5 places the bulkhead within 0.9 feet (10.8 inches) of the boundary.
[Note 4] The disputed area is the area between the fence and the boundary line as shown on the plan attached to this Decision as Addendum B, which was admitted as Exhibit 6 at trial.
[Note 5] Transcript, p.91.
[Note 6] Transcript, p.32.
[Note 7] Transcript, p. 156.
[Note 8] Transcript, p. 148-149.
[Note 9] Exhibit 28.
[Note 10] The only physical improvement in the disputed area, the sewer vent pipe, has been in place at most ten years.
[Note 11] The fence erected by the Grille property owners in April, 2007, apparently under the mistaken belief that it was on the property line, does nothing to prove Cappelluzzos claim of adverse possession. Construction of a fence, even in the event of a mutual mistake in which both parties mistakenly believe that the fence is on the proper boundary line, can provide a basis for proving the elements of adverse possession, but in this case the fence was erected only six years before the assertion of the adverse possession claim, and by itself cannot support Cappelluzzos claim. See Kendall v. Salvaggio, supra (permissive use based on a mutual mistake as to the location of a boundary line will not defeat a claim of adverse possession).
[Note 12] Cappelluzzo testified that the bulkhead is forty to forty-two inches wide. (Transcript, p. 116) Each fully opened door, at the pitch of the bulkhead, extends out about nine inches past the edge of the bulkhead toward the property line. The property line at the front corner of the bulkhead is 0.9 feet, or 10.8 inches, from the bulkhead. (Exhibit 5)
[Note 13] Transcript, pp. 146-148.
[Note 14] Transcript, p. 150.
[Note 15] Transcript, p. 48.
[Note 16] Transcript, p. 148.
[Note 17] Transcript, p. 149; Exhibit 10, a photograph taken in February, 1993 (before Cappelluzzo purchased his property), shows plowed snow that does not reach as far as the disputed area, as it does not reach as far south as the utility pole.
[Note 18] Transcript, pp. 148-149.
[Note 19] Exhibit 28.
[Note 20] Exhibit 29.