RALPH CERUNDOLO v. DOUGLAS R. MACKEY and HILARY S. MACKEY. WENDY C. PHILBRICK, Mortgage Holder/Interested Party.

Ralph Cerundolo and Douglas and Hilary Mackey own abutting properties in Beverly. Mr. Cerundolo uses a portion of the Mackeys’ property that lies between his northern property line and a fence on the Mackeys’ property as an extension of his back yard. Mr. Cerundolo claims to have obtained title to this area by twenty continuous years of adverse, open, notorious, and exclusive use. After trial, I find that Mr. Cerundolo has failed to prove all the elements of adverse possession; in particular, he has not established twenty continuous years of use.

Judgment shall enter in favor of the Mackeys.

Procedural Background

Ralph Cerundolo filed his Verified Complaint and Application for Preliminary Injunction on May 1, 2014, naming as defendants Douglas R. Mackey and Hilary S. Mackey and naming Wendy C. Philbrick as mortgage holder/interested party. In the verified complaint, Cerundolo seeks a judgment establishing title by adverse possession to a portion of the defendants’ property that abuts Cerundolo’s property and a preliminary and permanent injunction enjoining the defendants from interfering with his use of this land. A case management conference was held on June 5, 2014, at which the plaintiff was given the option of going forward with his motion for preliminary injunction on affidavits or advancing the case for trial. By notice dated June 16, 2014, the plaintiff elected to have the matter advanced for trial.

The defendants Douglas R. Mackey and Hilary S. Mackey filed their Answer and Counterclaim on June 13, 2014. In their counterclaim, the Mackeys seek a judgment dismissing the verified complaint and permanently enjoining Cerundolo from erecting or maintaining any structure on or otherwise trespassing upon the disputed portion of their property. Cerundolo filed his Answer to Counterclaim on June 17, 2014.

A pretrial conference was held on July 25, 2014. A view was taken on July 31, 2014. A trial was held October 28, 2014. The court heard testimony from Shelly Cerundolo, Peter Maitland, Ralph Cerundolo, Francine Cecieta, Lawrence Butler, and Hilary Mackey. Exhibits 1 through 24 were marked. Defendants’ motion for mandatory dismissal was denied.

On December 29, 2014, the parties filed Plaintiff’s Post-Trial Brief/Memorandum, Plaintiff’s Proposed Findings of Fact, Defendants’ Post Trial Submission, and Defendants’ Requests for Rulings of Law and Finding of Facts. The court heard closing arguments on February 19, 2015, and took the matter under advisement. This Decision follows.

Findings of Fact

Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. Ralph Cerundolo owns the property at 104 West Street, Beverly, Massachusetts (Cerundolo Property) by (i) a deed to Cerundolo as trustee of the Robert R. Realty Trust dated December 12, 1986 and recorded with the Essex South Registry of Deeds (registry) at Book 8709, Page 102, followed by a deed to Cerundolo dated January 21, 1993 and recorded with the registry at Book 11716, Page 528; and (ii) a deed to Cerundolo dated May 19, 2006 and recorded with the registry in Book 25689, Page 266. The Cerundolo Property is shown as Lot C and Parcel 1 on “Plan of Land in Beverly, MA. Essex South Registry of Deeds Showing: Lots A & B and Parcel 1 #100 & #104 West Street Prepared for: Robert R. Realty Trust Corey & Donahue, Inc. Engineers and Surveyors 198 Cambridge Rd. Woburn, MA.” dated April 5, 1991, revised August 29, 2005 and April 27, 2006, and recorded in the registry at Plan Book 398, Plan 46 (Plan). Exhs. 1, 2, 16; Tr. 75-76. A copy of the Plan is attached as Exhibit A.

2. Cerundolo resides at the Cerundolo Property with his wife, Shelly Cerundolo.

Tr. 15-16.

3. Douglas R. Mackey and Hilary S. Mackey own and reside at the property at 14 Beach Street, Beverly, Massachusetts (Mackey Property), by a deed dated December 23, 2011 and recorded in the registry at Book 30966, Page 470. The Mackey Property is shown on the inset to the Plan as lots 38B, 38C, 39C, and 40A. The Mackeys rented the house on the Mackey Property from January 2011 to when they took title. Exhs. 1, 2, 19, Tr. 206-207.

4. Ms. Mackey’s parents, Wendy C. Philbrick and the late Edgar Philbrick, owned the Mackey Property from 1982 until Wendy C. Philbrick conveyed it to the Mackeys. Wendy C. Philbrick holds a mortgage on the Mackey Property given by the Mackeys dated December 24, 2011 and recorded with the registry at Book 30966, Page 474. Exh. 1; Tr. 206.

5. Lots 38C and 39C of the Mackey Property abut the Cerundolo Property along the Cerundolo Property’s northern bound. Exhs. 1, 2; View.

6. When Cerundolo purchased the Cerundolo Property in late 1986, it consisted of a 7,563 square-foot lot, measuring approximately 76.5 feet along the frontage and the rear property line and 100 feet on each sideline. The Property sits four to six feet higher than the surrounding properties. Across West Street from the Property is the Atlantic Ocean. There was a single-floor cape-style house on the Property. Exhs. 2, 7, 23; Tr. 17, 19-20, 22-24, 48-49, 79, 82; View.

7. Mr. Cerundolo’s son and daughter-in-law lived in the house between 1986 and 2004. In 1990, Mr. Cerundolo obtained a variance to expand the house, built a second floor, and moved into the second floor with his then partner, now wife, Shelly Cerundolo. Exh. 8; Tr. 17-19, 25-26, 79-80, 93-94, 127-129.

8. After Mr. Cerundolo’s son and daughter-in-law moved out of the downstairs level of the house, Ms. Cerundolo’s parents lived there for a few years. After that, Lawrence Butler and his wife rented the unit from August 1998 to March 2001. The unit was rented to Phil Kay for the next twelve years. The Butlers purchased the house and property just to the east of the Cerundolo Property, at 106 West Street, in 2001 and live there still. Tr. 64-65, 176-177, 202.

9. In 2006, Cerundolo purchased a triangular strip of land from his neighbor to the west at 100 West Street, Francine Cecieta. This strip runs along the western bound of the lot he originally purchased, with its apex to the south on West Street and a base to the north approximately 21.23 feet wide. One of the reasons for purchasing this strip is that the house that was rebuilt under the variance encroached onto Ms. Cecieta’s property by 2.3 feet and the driveway for the Cerundolo Property encroached across the property line. This strip is shown as Parcel 1 on the Plan, and is referred to hereinafter as the “Strip.” Exhs. 2, 3, 7, 13, 16; Tr. 30, 101-102, 124-127, 130-131, 160-165.

10. At the time Cerundolo purchased the Cerundolo Property, there was no fence on the Mackey Property to the rear. In 1988 or 1989, the Philbricks installed a stockade fence with round posts on the Mackey Property, roughly along the line where the current fences sits and is shown on the Plan. The fence also extended along a line just north of the northern bound of the Strip. Exh. 2; Tr. 20-21, 56-57, 88-89, 91-93, 95.

11. In 1988 and 1989, the Philbricks used the Mackey Property as a rental property.

Exh. 1.

12. Beginning in 1990, Mr. and Ms. Cerundolo used the portion of the Strip abutting their back yard as a dumping area for building materials and compost. Both Mr. and Ms. Cerundolo testified that they placed compost in the area of the Mackey Property between the northern boundary of the Strip and the fence, a distance of three to five feet. Exh. 13; Tr. 28-30, 109-111, 152-153; View.

13. At the northeastern corner of the Cerundolo Property there stood a large willow tree. The willow tree had a large stand of poison ivy at its base. Although Mr. and Ms. Cerundolo testified that Mr. Cerundolo grew tomatoes and gardened in the ground under the tree, I do not credit that testimony. I credit Mr. Butler’s testimony that there was no gardening done under the tree. I infer that the lack of sun and the poison ivy under the tree prevented anyone from planting a garden there. The tree was taken down in March 2004. Exhs. 13, 14, 15; Tr. 34-35, 62-63, 112- 117, 137-140, 179-181.

14. In approximately 2004, the Philbricks replaced the existing fence on the Mackey Property with a new fence, placed approximately four inches to the north of where the old fence was along the same line. The new fence has square posts. The location of the new, current fence is shown on the Plan. Exhs. 1, 2; Tr. 39-40, 95, 97-98; View.

15. At the time the Philbricks replaced the fence, Mr. Philbrick spoke to Mr. Cerundolo. He told Mr. Cerundolo that he was concerned that runoff from the Cerundolo Property to the Mackey Property had undermined the fence, requiring it to be replaced. Mr. Cerundolo agreed that if Mr. Philbrick kept the round posts of the old fence in place, Mr. Cerundolo would install planks at the base of those posts to prevent runoff. The planks were installed at the direction of Mr. Cerundolo. Tr. 44-46, 98-101.

16. In approximately 2007, the area became serviced by city sewerage. Exh. 1; Tr. 64.

17. In June 2007, Mr. and Ms. Cerundolo had an L-shaped stone wall and a concrete table installed at the rear of the Strip. This wall and table were installed on the portion of the Mackey Property lying between the northern edge of the strip and the fence. Exh. 20; Tr. 30-31, 38-39, 69, 71, 74, 101-102, 110, 142, 144, 165-166.

18. Both Mr. and Ms. Cerundolo testified that during the construction of the stone wall in June 2007, Mr. Cerundolo had a conversation with Mr. Philbrick, the then-owner of the Mackey Property, near the fence. According to this testimony, Mr. Philbrick asked Mr. Cerundolo to replace the existing planking that was installed when the old fence was replaced in 2004 in order to prevent erosion and runoff from the Cerundolo Property to the Mackey Property. The planking was installed as requested. Tr. 41-47, 71-73, 102, 105-106.

19. I do not credit the testimony about Mr. Cerundolo’s alleged 2007 conversation with Mr. Philbrick. Mr. Philbrick passed away before June 2007. Tr. 214.

20. The area of the Mackey Property between the fence and the northern boundary line of the Cerundolo Property (the Disputed Area) is currently used by the Cerundolos as an extension of their backyard. It contains furniture, an outdoor oven, paving, gardens, and a grape arbor. View.

21. Mr. Cerundolo testified that he and Ms. Cerundolo used the Disputed Area beginning in 1990, using it as a general garden area, planting shrubbery and grass, installing a fountain, and installing grapevines. Tr. 117-119, 147-149.

22. Ms. Cerundolo testified that she and Mr. Cerundolo used the Disputed Area beginning in 1990, using it as their yard, installing “ornamental things, tables, things like that.” She testified that they filled it in with some gravel, installed a picnic table and bushes, gardened on it, and landscaped the area. She testified that not only she and Mr. Cerundolo, but their tenants and guests as well, used the Disputed Area. Tr. 36-38.

23. Mr. Cerundolo testified that while the old fence was up, he used its round posts as a support for his grapevines. Tr. 98-99.

24. Lawrence Butler testified that during the period he lived in the first-floor apartment at the Cerundolo Property, from 1998 to 2001, the Cerundolos made virtually no use of the Disputed Area, that the Disputed Area consisted largely of crab grass, and that no social activity took place in the Disputed Area. No improvements were installed nor any gardening begun in the Disputed Area until 2006 or 2007, after the Cerundolos connected to the town septic system. I credit his testimony, especially in light of the photographic evidence that in 2002, the Cerundolos had not placed any structures, picnic table, furniture or other items in the Disputed Area, and had not landscaped the Disputed Area. Exh. 13; Tr. 60-61, 146-148, 150-151, 162, 178-179, 181-182, 186-189; View.

25. After the willow tree was cut down, Mr. Cerundolo began to construct a stone wall in the northeast portion of the Disputed Area. Mr. Butler objected to the location of the stone wall, because he was continuing to use a portion of that area for a garden that his predecessor in title had begun with the permission of Ms. Philbrick. Mr. Cerundolo agreed to change the wall so that it did not run along Mr. Butler’s boundary line but jogged into the Disputed Area. Mr. Butler continues to use a portion of the Disputed Area with the permission of the Mackeys. Exh. 21; Tr. 68, 182-186, 197-199, 213; View.

26. In 2011, Hilary Mackey observed Mr. Cerundolo throwing leaves over the fence on the Mackey Property. She had two conversations with Mr. Cerundolo in which she asked him not to do that; he continued to throw the leaves and Ms. Mackey called the police. Later, at the request of Mr. Cerundolo, Ms. Mackey her mother, Ms. Philbrick, had a conversation with Mr. Cerundolo at the stone wall in the northeast section of the Disputed Area. In that conversation, Mr. Cerundolo asked Ms. Mackey and Ms. Philbrick for permission to use a part of this area near the fence to store compost. Ms. Philbrick, who still owned the Mackey Property at the time, agreed. Exh. 21; Tr. 207-213, 220-223.

Discussion and Conclusions of Law

Mr. Cerundolo’s complaint in this action brings a single claim for title by adverse possession over the Disputed Area. The Mackeys’ counterclaim brings a single claim that Mr. Cerundolo is trespassing on the Disputed Area. Resolution of the parties’ claims therefore depends on whether Mr. Cerundolo has gained title to the Disputed Property by 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.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992); see G.L. c. 260, § 21. Whether the elements of a claim for adverse possession have been satisfied is a factual question. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 156 (2011). Mr. Cerundolo, as the party claiming title by adverse possession, bears the burden of proving each of the elements of adverse possession by clear proof. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968); Cook v. Babcock, 11 Cush. 206 , 210 (1853).

In closing argument, Mr. Cerundolo divided the Disputed Area into three separate, smaller areas, each with different proof for his adverse possession claim. Mr. Cerundolo conceded that he could not establish adverse possession over the area in the northeast corner of the Disputed Area, where Mr. Butler had his garden. He was correct to do so, for two reasons: first, he did not actually use that area, and second, Mr. Butler used it with the permission of the Philbricks and the Mackeys.

The second smaller area of the Disputed Area over which Mr. Cerundolo claims title by adverse possession is the area between the fence and the northern bound of the original lot of the Cerundolo Property, i.e., the lot before Mr. Cerundolo acquired the Strip. In this area, there is much evidence of actual, open, and notorious use, consisting of the placement of furniture, paving, an oven, and gardens and grapevines in the area. Mr. Cerundolo had permission from Mr. Philbrick to install the planks at the base of the fence in 2004. The Mackeys argue that this means that all of Mr. Cerundolo’s use of the Disputed Area was with the Philbricks’ permission. I need not reach that issue. As I have found, however, that actual, open, and notorious use began at the earliest in 2006. There was no use of that portion of the Disputed Area in 2002, as evidenced by the photograph marked as Exhibit 13 and Mr. Butler’s testimony, and Mr. Cerundolo never maintained a garden under the willow tree. Assuming that the adverse possession period was cut off, at the latest, with the June 13, 2014 filing of the Mackeys’ counterclaim, Mr. Cerundolo’s use did not continue for the minimum required period of twenty years.

The final smaller area of the Disputed Area over which Mr. Cerundolo claims title by adverse possession lies between the fence and the northern bound of the Strip, an area three to five feet wide. The stone wall and stone table that are in that area were only placed there in 2007, far more recently than the required twenty years. Mr. Cerundolo maintains that between 1990 and 2007 he used that area to dump building materials and compost. The evidence of this dumping is too vague to constitute the “clear proof” necessary to establish actual, open and notorious use for the purposes of adverse possession. Cook, 11 Cush. at 210. Mr. Cerundolo has failed to establish by clear proof that he adversely, openly, notoriously, and exclusively possessed the Disputed Area for twenty continuous years. His adverse possession claim fails, and judgment shall enter dismissing his complaint with prejudice.

A trespass occurs when a person invades another’s interest in the exclusive possession of land, as by an entry upon it. Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005), quoting Prosser & Keeton, Torts § 87, at 622 (5th ed. 1984) and Restatement (Second) of Torts § 821D comment d (1979); see New England Box Co. v. C&R Constr. Co., 313 Mass. 696 , 707 (1943). Because he has failed to establish title by adverse possession over the Disputed Area, Mr. Cerundolo’s use of the Disputed Area is an entry upon the Mackey Property that invades the Mackeys’ interest in exclusive possession of their property and constitutes a continuing trespass. “In such circumstances, an injunction prohibiting the continuing trespass is the appropriate remedy.” Amaral, 64 Mass. App. Ct. at 91; see Peters v. Archambault, 361 Mass. 91 , 92 (1972). Judgment shall enter on the Mackeys’ counterclaim declaring that Mr. Cerundolo is trespassing on the Mackey Property, ordering Mr. Cerundolo to remove all furniture, paving, and other material objects from the Mackey Property within 45 days of the date of judgment, and thereafter permanently enjoining Mr. Cerundolo from entering the Mackey Property.

Judgment accordingly.