GORDAN K. MacNEVIN, and BONNIE K. MacNEVIN v. ROBERT F. CARROLL.

Lifelong next-door neighbors Gordan K. MacNevin and Robert F. Carroll disagree about the longevity of the fence between their properties, and hence, they also disagree as to the proper location of the boundary between their respective properties. While there is no dispute about the location of the record boundary line, the fence between the properties encroaches on the defendant Robert F. Carroll’s property. The plaintiffs (the MacNevins) claim, by adverse possession, ownership of the narrow, pie-shaped parcel of land in the record ownership of the defendant that lies between the fence and the record boundary line. Mr. Carroll denies that the plaintiffs have met their burden of proving the elements required to establish ownership of the disputed area by adverse possession, claiming that the encroaching fence has been in its present location only since 2005. The length of time the fence has been in its present location is the only factual dispute in this action, and the resolution of this dispute will determine whether the MacNevins are successful in their claim of adverse possession.

The defendant in this matter, Robert F. Carroll, initiated a trespass action as the plaintiff in Woburn District Court, (Carroll v. MacNevin, No. 1453 CV 0214) against the plaintiffs in this matter, the MacNevins. The MacNevins asserted a counterclaim for adverse possession. A judge of the Woburn District Court found for Mr. Carroll on the trespass claim, and by an order dated April 10, 2015, dismissed the adverse possession claim without prejudice so that it could be refiled in the Land Court, and stayed execution of judgment on the trespass claim pending resolution of the adverse possession claim in Land Court. The MacNevins commenced this action on April 27, 2015, seeking to establish their rights to the disputed area by adverse possession.

I conducted a view of the plaintiffs’ and defendant’s properties on December 11, 2015, and a trial was held on December 15, 2015.

For the reasons stated below, I find and rule that the MacNevins have met their burden of establishing title to the disputed area by adverse possession.

FACTS

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. On January 15, 1965, plaintiff Gordan MacNevin’s parents purchased the property at 3 Acorn Street, Woburn (the “MacNevin Property”). The MacNevin Property is improved by a single-family dwelling, with frontage on Acorn Street, a dead-end, cul de sac roadway.

2. On February 27, 1990, plaintiff Gordan MacNevin acquired title to the MacNevin Property through a conveyance from his parents.

3. On February 13, 1997, Mr. MacNevin conveyed the MacNevin Property to himself and his wife, plaintiff Bonnie K MacNevin.

4. On February 6, 2006, defendant Robert F. Carroll acquired title to the property at 4 Acorn Street, Woburn, (the Carroll Property) through a conveyance from his siblings following his father’s death. Mr. Carroll’s father had earlier conveyed the Carroll Property to Mr. Carroll and his two siblings, subject to the father’s retained life estate.

5. The Carroll Property is improved by a single-family dwelling, has frontage on Acorn Street, and is next door to the MacNevin Property.

The Properties and the Disputed Area

6. The MacNevin Property and the Carroll Property share a common record boundary line, approximately 92.18 feet in length, which forms the western boundary of the MacNevin Property and the eastern boundary line of the Carroll Property. [Note 1]

7. At the time of the conveyance of the MacNevin Property from Mr. MacNevin’s parents to Mr. MacNevin in 1990, there was already a fence in the vicinity of the western boundary of the MacNevin property and the eastern boundary of the Carroll property. The fence had been in existence “in that very same spot” for “as long as (Mr. MacNevin) can remember.” [Note 2]

8. The fence was a stockade fence for approximately three-quarters of its distance, starting from the rear of the properties, and a post and rail fence for the remainder of the distance to the front of the property. [Note 3]

9. In or about the summer of 2004, Mr. MacNevin replaced the stockade portion of the fence, which was in disrepair, with another stockade fence, and replaced the post and rail portion of the fence with a picket fence. [Note 4] I credit Mr. MacNevin’s testimony, and so find, that he replaced the old stockade fence and post and rail fence with the new fencing in the same location as the old stockade fence and post and rail fence, using the same post-holes. (See discussion, infra.)

10. The fence, as previously located, and as rebuilt in 2004, encroached on the Carroll Property by about two feet at the rear, and by about twenty feet at the front of the properties at the street line of Acorn Street. [Note 5]

11. The disputed area, bounded by the record boundary line, the street line of Acorn Street, and the fence, is roughly triangular or pie-shaped, with the apex at the rear of the two properties and the base at the street line.

12. The fence, as previously located, and as rebuilt in the same location in 2004, and thus the occupation of the disputed area enclosed by the fence, was and remains open, obvious and plainly visible from the MacNevin Property, from the Carroll Property, and from Acorn Street in front of both properties.

13. There is no suggestion in any of the evidence that the occupation of the disputed area by the plaintiffs and the plaintiffs’ predecessors in title, Mr. MacNevin’s parents, was permissive, and in fact the undisputed evidence is to the contrary. I so find that the occupation of the disputed area was nonpermissive.

14. Just inside the disputed area on the MacNevin side of the fence, is a landscaped planting bed, approximately three feet in width. The planting bed, maintained by the plaintiffs, has been present at least since 1999, although it was not present in 1988. [Note 6] The rest of the disputed area is occupied by a lawn, which the plaintiffs generally use as part of their yard. [Note 7]

15. In 2006, Mr. Carroll retained an engineering company to prepare a plan of his property in connection with a land swap transaction with another neighbor. The plan showed that the fence was located on the defendant’s property. [Note 8] I find that it is more likely than not that the discovery of the encroachment as a result of the creation of the 2006 plan was the reason for the beginning of the dispute between Mr. Carroll and Mr. MacNevin, and not Mr. Carroll’s claim that Mr. MacNevin relocated the fence.

16. Although Mr. MacNevin and Mr. Carroll have differing accounts of their discussions following Mr. Carroll’s confirmation of the encroachment, there is no dispute concerning the ultimate result that Mr. Carroll filed a trespass action in Woburn District Court, following which, the MacNevins filed this action making a claim of adverse possession.

DISCUSSION

The plaintiffs’ sole claim to ownership of the disputed area is based on their assertion that they have acquired title by adverse possession. “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 required…period for adverse possession can be reached by tacking a predecessor’s period of adverse possession, if privity of estate exists between Plaintiff and the [previous] adverse possessors.” Nauset Road, LLC. v. Chaves, 18 LCR 438 , 440 (2010) (Registration Case No. 99 REG 43314) (Trombly, J.), citing Luce v. Parsons, 192 Mass. 8 , 12 (1906).

“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 Mendonca 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. “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).

“If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). “One claiming a title by adverse possession …[o]nly has to prove his case by a fair preponderance of the evidence.” Inhabitants of Cohasset v. Moors, 204 Mass. 173 , 178-79 (1910).

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. O’Gara, 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 Ass’n 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 Ass’n v. Steffens, supra, at 848. “[Adverse possession] may be effected without actual knowledge of the owner of the land[;] acts of notoriety, such as putting a fence round the land,…being constructive notice to all the world.” Poignard v. Smith, 23 Mass. 172 , 172 (1828).

Enclosure of land by a fence is ordinarily the gold standard of proof of adverse possession: it provides direct and often incontrovertible evidence of possession that is open and notorious, that excludes the record owner, and it provides the adverse possessor with demonstrably exclusive use of the land. See, e.g., Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157-158 (where “fence stood in same location for twenty-four years, [it] ‘was, of course, open and obvious to all for as long as it stood.’”); Kendall v. Salvaggio, supra (fence encroaching 8 or 9 feet on landowner’s property served as proper basis for finding of adverse possession even though fence was constructed without regard to or knowledge of location of property boundary); Wood v. Quintin, 328 Mass. 118 , 119 (1951) (title by adverse possession acquired despite parties’ mistaken belief that fence was located on property boundary).

In the present action, the enclosure of the disputed area by the fence maintained by the plaintiffs served to cut off the disputed area from any use by the owner of the Carroll Property (as demonstrated by Mr. Carroll’s resulting inability to use that part of his property to move vehicles onto his property), and it unquestionably provided both constructive and actual notice to Mr. Carroll, who asserts that he complained of the encroachment at least as of 2006. The only relevant dispute then, as is noted above, is whether the fence has been in its present location for the required continuous twenty-year period. Where a fence is erected that meets all of the physical elements of an adverse possession claim (use that is open and notorious, exclusive, and nonpermissive), but is moved or destroyed before the requisite twenty-year period has elapsed, the adverse possession claim fails. Mendonca v. Cities Service Oil Co. of Pa., supra, at 325.

Mr. MacNevin’s testimony and Mr. Carroll’s testimony profoundly contradicted each other. Mr. Carroll testified that he returned from a trip to Florida in the winter of 2005-2006 to discover that Mr. MacNevin had installed a new fence that “wasn’t where it was before”, and that the new fence prohibited access to Mr. Carroll’s side yard. [Note 9] Mr. MacNevin, on the other hand, testified that he replaced the old fence with new sections of fencing more than a year earlier, in the summer of 2004, in the exact same location as the old fence, using the existing post-holes from the old fence. “I didn’t dig any new holes, I just replaced them (the fence posts) in the existing holes that were already there.” [Note 10] In crediting Mr. MacNevin’s testimony, and not crediting Mr. Carroll’s testimony in this regard, I rely at least in part for corroboration on the photographic exhibits admitted at trial, and on the view taken prior to trial. I also rely on the fact that the plan Mr. Carroll had prepared in 2006 that confirmed that the fence encroached on his property was created for an unrelated transaction, and apparently not in order to confirm his belief that the fence, newly moved, encroached on his property.

The relevant photographic exhibits, all of which were entered into evidence by agreement, were provided by the plaintiff, and none were taken by or provided by the defendant. [Note 11] Exhibit S, a photograph taken in 1988, shows the former post and rail fence in a location that appears to be closer to the retaining wall that forms the eastern side of Mr. Carroll’s driveway than would be possible or likely if the fence had been located roughly twenty feet (at the street line) to the east, on the record boundary line. This photograph also shows a tree on the MacNevin (eastern) side of the fence, which appears to be the same tree observed on my view, and which appears in Exhibits Y and DD. The tree is located approximately at the junction of the stockade portion of the fence and the post and rail (and now picket) portion of the fence. [Note 12] If the fence had formerly been located as testified to by Mr. Carroll, the tree would appear to be behind the fence, not in front of it, in Exhibit S.

Exhibit T, a photograph taken in 1999, also shows the post and rail portion of the fence far closer to Mr. Carroll’s driveway (occupied by a covered boat) than it would appear if it were located, as Mr. Carroll testified, on or close to the record boundary line. The same is true for Exhibit U, a photograph taken in 2001 or 2002, which again shows the post and rail fence extremely close, and obviously much closer than the fifteen or twenty feet testified to my Mr. Carroll, to the retaining wall of the driveway and the driveway itself, again occupied by Mr. Carroll’s boat. Exhibit Q, a photograph taken in 1986, also shows a small portion of the post and rail fence appearing closer to Mr. Carroll’s driveway (occupied by the covered boat) than would be likely if it were located as testified to by Mr. Carroll.

Based on the evidence as I have found it, the plaintiffs and their predecessors in title occupied the disputed area “without the permission of the true owner, continuously for twenty years, exclusively, openly, notoriously, and adversely to the true owner, thereby giving notice to the world of (their) possession.” Lawrence v. Town of Concord, supra, at 425.

CONCLUSION

For the reasons stated above, I find and rule that the plaintiffs have established ownership of the disputed area by adverse possession.

Judgment to enter accordingly.