LAWRENCE OWENS and PATRICIA OWENS, as Trustee of the LAMO 2010 REALTY TRUST v. RICHARD BUCCHERI, SR., individually and as Trustee of the SPIRIT REALTY TRUST, and DAVID CHU and ROSA CHU, as Trustees of the 1238 BEDFORD STREET REALTY TRUST [Note 1]

This case is before the court on remand from the Massachusetts Appeals Court for two purposes: (1) in order to determine liability for trespass and trespass to trees, and (2) to assess what damages, if any, are appropriate.

On June 16, 2008, the plaintiffs, Lawrence and Patricia Owens (the “Owens”), as trustees of the LAMO 2010 Realty Trust, who own and reside at 1250 Bedford Street in Abington, filed their complaint in this action seeking to establish title by adverse possession to a disputed area just over their common boundary line with 1238 Bedford Street, to which the defendant trustee of the Spirit Realty Trust (“Spirit Realty”), then held record title. [Note 2] The Owens also sought damages for trespass and trespass to trees resulting from Spirit Realty’s excavation of the disputed area, and personal liability against Richard Buccheri, Sr. (“Buccheri, Sr.) for trespass, trespass to trees, and nuisance. A trial was held over three days, concluding on March 12, 2014. Following trial, a decision and judgment were issued by the court (Grossman, J.) on September 5, 2014, in which the judge found that the Owens had established title by adverse possession to the disputed area. [Note 3] While the court found that Spirit Realty did enter onto the disputed area to excavate, cutting down trees and destroying a fieldstone retaining wall in the process, the court declined to impose liability for trespass and nuisance damages because Spirit Realty was the record owner of the disputed area when the excavation occurred; nor did the court hold Buccheri, Sr. personally liable. [Note 4]

On appeal, the Owens argued that the judge erred in denying their trespass, trespass to trees, nuisance, and individual liability claims. On March 31, 2016, the Appeals Court affirmed the part of the judgment concluding that the Owens established title by adverse possession to the disputed area and denying the Owens damages on their nuisance claim. The remainder of this court’s judgment, however, was vacated and remanded for further proceedings on the Owens’ trespass and trespass to trees claims. [Note 5] The Appeals Court also did not reach the issue whether Richard Buccheri, Sr. could be held individually liable for trespass. The Appeals Court’s rescript was entered on April 28, 2016, remanding the case to this court. Following remand, this court scheduled and held a status conference with the parties, the subject of which was to determine what, if any, further proceedings were necessary, including, without limitation, re-opening of the evidence in light of the retirement of the trial judge and the assignment of the case on remand to a new judge. Upon agreement of the only parties present (the plaintiffs), it was determined that no re-opening of the evidence or further briefing would be conducted, and the court took the matter under advisement. [Note 6]

FINDINGS OF FACT

Based on the undisputed facts, exhibits, testimony at trial, as well as the facts found after trial that were affirmed by the Memorandum and Order pursuant to Rule 1:28, I make the following additional findings of fact:

1. The Owens acquired property at 1250 Bedford Street (“the Owens Property”) on December 19, 1969. The Owens Property is improved by a single-family dwelling. [Note 7]

2. The Owens purchased their property from prior owners Kenneth and Thelma Pike (“the Pikes”). The Pikes acquired the now-Owens Property in 1942, about a year after the dwelling was built. In approximately 1947, the Pikes built a fieldstone wall. The wall was built into the side of a hill where it was used as a retaining wall. It was about 50 feet long, running from the rear of the property and terminating about five feet from the sidewalk in the front of the house. In 1951, the Pikes built a garage and, in 1954, they constructed a lean-to. When the Owens acquired the property, the fieldstone retaining wall, the garage, and the lean-to remained in place in their original locations. [Note 8]

3. In 2005, Spirit Realty acquired the abutting property at 1238 Bedford Street. Spirit Realty wanted to develop the property for commercial purposes. Robert Buccheri was the trustee of Spirit Realty when the complaint was filed in this action, but at the beginning of 2013, his brother, Richard Buccheri, Sr., became the sole trustee. In September 2011, during the pendency of this case, Spirit Realty sold 1238 Bedford Street to David and Rosa Chu, as trustees of the 1238 Bedford Street Realty Trust. [Note 9]

4. There is no dispute about the record boundary line between the two properties. The area to which the Owens have acquired title by adverse possession is located along the common boundary line between the parties’ properties (the “Disputed Area”). The Disputed Area is described as follows:

The area in dispute is approximately 12 feet wide (from the alleged SRT [Spirit Realty Trust] line), by 185 feet deep (from the street front to back), for a total of approximately 2,200 square feet. . . . The width is slightly narrower, approximately 8 feet, at the street, but then it increases to approximately 12 feet due to the angle of the property line.

The Disputed Area can be seen on a plan entitled “Plot Plan of Land in Abington, MA” by John W. Delano and Associates from December 15, 2008. [Note 10]

5. Part of the Owens’ carport/lean-to, driveway, and fence are presently located on the left side of their lot (when looking at the property from the street) and over the record boundary line into the Disputed Area on property in the record ownership of Spirit Realty. [Note 11]

6. In or about April or May 2008, Spirit Realty cleared and excavated part of the Disputed Area. Buccheri, Sr. acted as the supervisor of the permitting and construction activities for Spirit Realty with respect to the commercial development of 1238 Bedford Street. His son, Richard Buccheri, Jr. (“Buccheri, Jr.”), also helped to clear the area. [Note 12]

7. Prior to the clearing, the Owens objected to Spirit Realty’s excavation and requested that the retaining wall not be razed and that their mailbox not be moved. [Note 13]

8. The excavation activities included the removal of the fieldstone retaining wall, the clearing of trees and vegetation above the wall on the hill into which the wall had been built, and the leveling or grading of the vegetated area. The vegetation on the hill above the wall included trees, ivy, flowers, and blueberry bushes. The land cleared was left, in no small measure, strewn with rubble. Additionally, Spirit Realty stockpiled large mounds of dirt along the property line and failed to control dust and debris. The Owens’ mailbox was also moved and replaced in a different location in conjunction with the excavation activities. At the time the excavation was done, Spirit Realty had record title to the Disputed Area and there had been no adverse claims of ownership by the Owens prior to the time of the clearing. [Note 14]

9. At trial, Ellis Allen (“Allen”) testified with respect to valuation of the trees that were removed. Allen is a certified and licensed arborist and consultant with approximately sixty years of experience. Allen was qualified as an expert to testify on value of the trees removed with no objection from the defendants. Allen determined the number, species, age and condition of the trees that had been removed from the cleared area by extrapolation from an adjacent stand of trees just behind the cleared area after visiting the site, reviewing photographs (both on the ground and aerial) taken before and after the clearing, and examining the density and other aspects of the adjacent stand of trees. He concluded that there were approximately 14 trees cleared from the Disputed Area. Allen also estimated the likely species of trees that were removed to include red oak, white oak, black birch, red maple, and flowering dogwood. Allen used the common “cost of cure” method of valuation. This method, he explained, is the cost of restoring the property to a condition that is similar to what it was prior to any damage. The valuation of the trees is based on the number and species of trees, the size of the diameter of the trees, and their condition. From the adjacent trees, Allen determined that the trees in the Disputed Area were likely in relatively poor condition, as a result of which he reduced their valuation to 40% of full value. Applying the discount to 40% of value based on the condition of the trees, Allen opined that the value of the removed trees was $37,882. I credit Allen’s testimony and find his use of the cost of cure method of valuation to be appropriate. [Note 15]

10. Kenneth Brigham (“Brigham”) testified, also with no objections to his qualifications, as an expert stonemason with respect to the cost to replace the fieldstone retaining wall that Spirit Realty razed when it excavated the Disputed Area. He determined that any new replacement wall would be a freestanding wall, and not a retaining wall because there was no longer a grade to retain. He determined the length of the old wall by estimating from photographs and from a site visit and examination of the features that were still on the property, including the garage. He also opined that a new fieldstone wall, since it would be exposed on both sides, unlike a retaining wall, would have a double face, and would be about two feet wide by about fifty feet long and three feet in height. Using prices he obtained from a quarry, he determined a “face square foot” price of $43.00, including the cost of labor and materials, and determined that the cost of replacing the wall would be about $13,545.00. I credit Brigham’s testimony and find his valuation of the replacement cost of the wall, including his determination that the length of the old wall was about fifty feet, to be reasonable and appropriate and sufficiently based on evidence presented at trial. [Note 16]

11. Buccheri, Sr. personally participated in the clearing and excavation of the Disputed Area. He also moved and replaced the Owens’ mailbox. [Note 17]

12. Following the clearing, the Owens first explicitly asserted ownership over the Disputed Area on May 14, 2008, when their attorney sent a letter to Spirit Realty requesting that it cease further trespasses onto the Disputed Area as it belonged to the Owens.

13. Several weeks later, Buccheri, Sr. drove onto the Owens’ driveway and confronted Mr. Owens about the lean-to, which was over the record boundary into the Disputed Area. Buccheri, Sr. also threatened to put up a fence through the driveway along the record property line. [Note 18]

14. The Owens subsequently filed this action on June 16, 2008. [Note 19]

DISCUSSION

I. Trespass

The Owens’ trespass claims derive from Spirit Realty’s excavation and clearing of the Disputed Area in the spring of 2008. A trespass is “an invasion of the interest in the exclusive possession of land, as by entry upon it.” Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005), quoting Restatement (Second) of Torts § 821D, comment d (1979). In order to prevail on a trespass claim, the Owens must prove that (1) they had actual possession of the property, and (2) Spirit Realty’s entry was intentional and illegal. Gillespie v. Aliot, 14 LCR 429 , 430 (2006), citing New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707 (1943). A person is in “possession” of land if he or she occupies it with the intent to control it. New England Box Co. v. C & R Constr. Co., supra, 313 Mass. at 710. A plaintiff does not have to prove that the defendant intended to commit a trespass, but may recover even if trespass occurred from intrusion by mistake, but was still voluntary. J. D’Amico, Inc. v. City of Boston, 345 Mass. 218 , 221-222 (1962).

This court (Grossman, J.) held, and the Appeals Court affirmed, that the Owens were the owners of the Disputed Area through adverse possession. As the owners, the Owens have a right to bring trespass claims against even the record title owners, here, Spirit Realty. See New England Box Co. v. C&R Constr. Co., supra, 313 Mass. at 707, quoting Inhabitants of Barnstable v. Thacher, 3 Metc. 239, 242 (1841) (“A person in the actual occupation of land may maintain trespass against any person except the real owner, or the person having a right of possession.”). The Owens’ open and notorious use of the Disputed Area would have put any observer, including the record title owner, on notice of their adverse possession of the area and their accompanying rights.

It is undisputed that Spirit Realty excavated and cleared the Disputed Area and that Buccheri, Sr. personally participated. The cleared area extended all the way to the edge of the Owens’ driveway. The excavation destroyed the retaining wall and cleared trees, underwood, and other vegetation located on the hill above the wall. Prior to the clearing, the Owens objected and specifically requested that Spirit Realty not remove the retaining wall and that their mailbox remain in place. Whether Spirit Realty’s trespass occurred with or without the knowledge that the Owens were asserting ownership over the area is irrelevant. At the time of the trespass, the Owens had actual possession of the Disputed Area, their adverse possession of the Disputed Area had already ripened into ownership, and Spirit Realty’s actions were certainly intentional.

To the extent that Spirit Realty claims that the excavation was done with permission from the Owens, this contention is not supported by the record. Only Buccheri, Jr. recalled such a conversation with the Owens and there was no documentation of the contents of the conversation, nor other witnesses to support it. [Note 20] I do not credit Buccheri, Jr.’s assertion of permission.

The evidence is sufficient to demonstrate that Spirit Realty’s clearing and excavation constituted a trespass. The question now is what damages should be assessed. The Owens seek damages for trespass for removing the fieldstone retaining wall and seek up to treble damages resulting from the trespass to trees.

There is ample evidence in the record that the fieldstone retaining wall did exist at the time Spirit Realty excavated the Disputed Area and that Spirit Realty caused the retaining wall to be destroyed. I find the testimony from the Owens, as well as from former neighbor Michael Mahoney, credible evidence that the wall built by the Pikes around 1947, remained in the same location until Spirit Realty cleared the area. As previously noted, I credit Brigham’s assessment and valuation of the replacement costs of the fieldstone wall. His method in generating a cost estimate for such walls is sound and credible. Accordingly, Spirit Realty is liable for trespass damages in the amount of $13,545.00 for the cost to replace the fieldstone wall destroyed during the excavation of the Disputed Area.

II. Trespass to Trees under G. L. c. 242, § 7

The Owens maintain that Spirit Realty willfully cut down trees in the Disputed Area and therefore seek treble damages under the trespass to trees statute, for a sum total of $113,646.00. Pursuant to G. L. c. 242, § 7: A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

As is noted above, Spirit Realty cut trees, underwood, and other vegetation in the Disputed Area, land owned through adverse possession by the Owens. Because at the time the trees were cut Spirit Realty was still the record owner of the land, it had a good faith basis to believe it owned the Disputed Area and was lawfully within its rights to cut trees on the parcel. Hence, Spirit Realty “had good reason to believe that the land on which the trespass was committed was (its) own,” and it will be liable for single damages only.

Though the statute does not specify how damages are to be measured, courts have generally used two methods to measure damages: (1) the value of the timber which has been wrongfully cut, or (2) the diminution in value of the property attributable to the cutting. Larabee v. Potvin Lumber Co., Inc., 390 Mass. 636 , 643 (1983); Glavin v. Eckman, 71 Mass. App. Ct. 313 , 317-318 (2008). “Replacement or restoration costs have also been allowed as a measure of damages...where diminution in market value is unavailable or unsatisfactory as a measure of damages.” Glavin v. Eckman, supra, 71 Mass. App. Ct. at 318-319, quoting Trinity Church v. John Hancock Mut. Life Ins. Co., 399 Mass. 43 , 49 (1987). “Where ‘the value of timber cut is negligible, or the diminution in value of the property owing to the cutting is minimal or nonexistent,” the proper measure of damages is the cost of restoration of the property to its original condition.. Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 304-307 (2008), quoting Glavin v. Eckman, supra, 71 Mass. App. Ct. at 318.

The Owens properly argue that the cost of restoration, specifically calculated using the cost of cure method, is the appropriate method of damages in this instance, rather than the value of timber or diminution in property value. “Cost of cure” is a recognized method of calculating restoration damages. Glavin v. Eckman, supra, 71 Mass. App. Ct. at 320-321 (noting with approval expert’s use of cost of cure method as a means to assess restoration costs). [Note 21]

Based on the testimony of Allen, the Owens seek $37,882.00 for tree loss and restoration costs. Spirit Realty presented no witnesses to rebut Allen’s testimony and appears to base its opposition to the damages estimate on the fact that Allen was forced to estimate the number and species of trees without seeing the actual trees that were cut down. It would be ironic if the only way to prove the existence of the trees that were wrongfully cut down would be to have an expert witness who happened to have viewed them before they were removed by the defendants. I find that that is not the case, and I further find that the extrapolation method used by Allen to calculate the density, number, species and condition of the trees removed from the Disputed Area was sound and reasonable. I agree that restoration and replacement cost using the cost of cure method is the appropriate method of calculating damages and I credit Allen’s valuation of the cost to replace the trees. Judgment will enter in favor of the Owens and against Spirit Realty for damages in the amount of $37,882.00, which will not be trebled.

III. Personal Liability

The Owens next argue that Richard Buccheri, Sr. is individually liable for the tortious conduct at issue, including trespass and trespass to trees. Under the Uniform Trust Code, not specifically applicable to realty trusts (see G. L. c. 203E, §102), a trustee may be held personally liable “for torts committed in the course of administering a trust or for obligations arising from ownership or control of trust property...only if the trustee is personally at fault.” G. L. c. 203E, § 1010(b). This statute was formerly section 14A of G. L. c. 203, and in that context it was specifically applicable to realty trusts. See G. L. c. 203, § 1. In that former incarnation of the statute, a trustee could be liable on the basis of the statute for personal, intentional torts with respect to real estate. Von Henneberg v. Generazio, 403 Mass. 519 , 525 (1988) (trustee who personally conducted construction activities on trust property causing flooding of adjoining owner’s land was personally liable for resulting damage). However, the liability of a trustee for his own tortious acts is not entirely a creature of statute. “An ordinary trustee is liable personally for torts committed by him or by his agent or servant in the administration of the trust.” Wood v. Comins, 303 Mass. 367 , 368-369 (1939). Thus, under the common law, Richard Buccheri, Sr. may be individually liable for his participation in the removal of the trees and the retaining wall. His activities on the Owens Property in excavating the Disputed Area constitute a trespass and a trespass to trees. There is no question that Buccheri, Sr. personally oversaw and supervised the permitting and construction activities for Spirit Realty for the commercial development of 1238 Bedford Street. Buccheri, Sr. testified that he actively participated in the clearing and excavation of the area, including cutting down the trees, underwood, and vegetation, and moving the Owens’ mailbox. Further, Buccheri, Sr. admitted that following the clearing, he drove up the Owens’ driveway and made threats to the Owens about the location of their lean-to and fence. It follows that Buccheri, Sr. may be held personally liable individually for the damages resulting from his trespass on the Owens Property.

CONCLUSION

For the reasons stated above, I find that the defendant Richard Buccheri, Sr., Trustee of Spirit Realty Trust is liable in both his capacity as trustee and individually for damages for trespass in the amount of $13,545.00, plus trespass to trees single damages, pursuant to G. L. c. 242, §7, in the amount of $37,882.00, totalling $51,427.00, plus interest and costs.

Judgment will enter accordingly.