These consolidated cases, filed long ago, and long dormant in this court, concern the ownership of a disputed area at the rear of the parties properties in an historic area of Salem. The area in contention (disputed area) is roughly a thin, tapering triangle of land largely at and behind the rear of the garage serving the defendants residential property. The disputed area, described more exactly below, measures only about 21 square feet, of which 14 are claimed by the Carr plaintiffs, and 7 by plaintiff Ann Knight. At its widest point, the disputed area measures less than two feet, and it tapers down to almost nothing.
II. PROCEDURAL HISTORY
The plaintiffs, John and Carol Carr, and Ann Knight, filed these cases, seeking to quiet title and for a declaratory judgment establishing their title to the disputed area, in the Superior Court Department, Essex County, on September 30, 1996 and October 2, 1996. The cases were consolidated, the complaints amended, and an initial interim agreement in lieu of injunction was reached before the case was transferred from the Superior Court Department to this court by order dated February 18, 1998.
Little activity of substance took place thereafter for many years. The most obvious conclusion one might have reached, after fifteen years of quiet on the docket, was that this neighborhood boundary line dispute had gone silent for so long because the issues that led to the litigation had been resolved. That conclusion would not appear to have been the correct one. In November, 2014, the defendants requested a status conference, and the case was assigned to me. At a series of conferences, the parties repeatedly professed their intention to achieve a settlement, including with the assistance of mediation, but they also pressed their need for the court to decide the case if the parties proved unable to resolve it on their own. The court strongly encouraged the parties to progress forward with mediation and good faith efforts to reach consensus. Those exhortations produced no tangible success. The parties attended a mediation session on March 17, 2015 with REBA Dispute Resolution, Inc., before Joel Reck, Esq., but were unable to reach a settlement. Counsel and the then self-represented party were ordered to attend a pre-trial conference on March 31, 2015.
The plaintiffs lay their claim to the disputed area at the rear of their back yards based on alternative (and mutually inconsistent) legal theories: that they have a record title to the area, based on conveyances in chains of title that originate before the founding of the country, or, if not, that they have titles acquired not from the record, but based on a history of adverse use sufficient in character, continuity, and duration to have produced in the plaintiffs title by adverse possession. At the pre-trial conference, after colloquy concerning the complexity and volume of the evidence needed for the court to determine the record title line between the plaintiffs and the defendants parcels, the plaintiffs expressed high confidence in the strength of their proof on the alternative theory of title by adverse possession. As a result, the court agreed with the parties that the case would proceed to trial on that question alone--whether the plaintiffs could carry their burden of proving title by adverse possession. The understanding reached was that, should the court as trier of fact find the plaintiffs had carried that burden, they would relinquish their first alternative theoryof record titleand the case would proceed to judgment. The court and the parties thus would avoid the need for a lengthier trial, if the plaintiffs view of their adverse possession case was justified by the courts findings.
The parties went to trial on the adverse possession question, with the plaintiffs bearing the burden of proof. The parties opposing claims for record title to the disputed area were not at issue during trial.
The court took a view of the disputed area and its surroundings, including the residential properties of each of the properties of the parties and the surrounding neighborhood, on June 19, 2015.
Trial commenced June 24, 2015. A court reporter, Faye LeRoux, was sworn to transcribe the testimony and proceedings. The parties introduced into evidence thirty four exhibits, many by agreement, some in multiple subparts, and all as reflected in the transcripts later filed. Five witnesses, all of them parties, testified at trial: John H. Carr, Carol P. Carr, and Ann Knight for the plaintiffs; Joel F. Caron, and Judith H. Caron for the defendants. At the close of the evidence, the court suspended the trial. The parties submitted post-trial briefs and requests for finding of facts and rulings of law, which were reviewed by the court, and counsel later argued the case to the court in December, 2015. After the court received the final transcript, I took under advisement the case as it was tried to the court, which I now decide.
III. FINDINGS OF FACT AND RULINGS OF LAW
On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the view I took, the pleadings, and the memoranda and argument of the parties, I find the following facts and I rule as follows:
1. Joseph and Joanna Schappa purchased the property at 7 River Street, Salem, Massachusetts on March 12, 1965. Robert Ledoux purchased 7 River Street from the Schappas on October 30, 1972. Robert Ledoux owned the property until the following May, when he sold the property to plaintiffs John H. Carr and Carol P. Carr on May 16, 1973. The Carrs have occupied the residence on the property ever since.
2. Plaintiff Anne H. Knight acquired title to 11 River Street, Salem, Massachusetts, on August 1, 1977, and has resided in a portion of the dwelling there ever since. The main structure at 11 River Street is a two family house. Ms. Knight occupies the second floor, second floor deck, and attic, and rents the first floor to her tenant, Michelle Louizos, who has lived in the first floor for the last twenty four years.
3. 11 River Street abuts the Carr property at 7 River Street. The Carr parcel lies immediately to the west of the Knight land; seen from River Street, the Knight home is on the left and the Carr home on the right. The plaintiffs are next door neighbors. There is no 9 River Street.
4. Walter and Nathalie Caron (defendant Joel Caron's parents) purchased the adjacent property to the south of the plaintiffs' properties, 4 Andover Street, Salem, Massachusetts on September 12, 1950. Defendant Joel Caron and his family moved into 4 Andover Street when he was five years old. Joel Caron lived there until September of 1966, when he and his wife defendant Judith Caron moved to Illinois.
5. Joel and Judith Caron lived in the Midwest until they moved back to Salem in June of 1988. During the years the two lived in Illinois, they made at least yearly trips to visit Joel's parents in Massachusetts, including every August.
6. Joel Caron was a member of the United States Air Force Reserve from 1971 through 1993. He took part in multiple tours of active duty during the time of his ownership of 4 Andover Street; most of the tours were two to four days in length. These tours added up to 238 days of active duty during the time of Carons ownership of 4 Andover Street.
7. Nathalie Caron died in 1987. Walter Caron sold the property to his son Joel Caron, as trustee and a beneficiary of the Caron Nominee Trust, on August 31, 1988. Title to 4 Andover Street moved from the trustee of that trust to Joel and Judith Caron on October 10, 1991. Joel and Judith Caron have occupied the residence at 4 Andover Street since June of 1988. Walter Caron, no longer an owner of 4 Andover Street, died July 29, 2000.
8. 4 Andover Street shares its rear lot line with 7 River Street (Carr) and 11 River Street (Knight). 4 Andover lies to the south of the plaintiffs' neighboring River Street properties.
9. There is a metal construction two-car garage in the northwest corner of the 4 Andover Street property. The garage is roughly 18 feet square and has a rubble foundation extending approximately six to eight inches out from its vertical sides and rear. The then owners of the property installed the garage in 1940. The rear of the garage abuts both the Carrs and Ms. Knight's back yards.
10. The disputed area is a strip of land located behind the garage. This area is a triangular- shaped wedge which lies between the back side of the garage and the back yards of the plaintiffs. The area extends 0.4 feet north of the northwest corner of the garage and 1.9 feet north of the northeast corner, and spans the 18 foot width of the garage. The total disputed area is approximately 21 square feet, all of them claimed by the defendants, and 14 square feet of which is claimed by the Carrs and 7 claimed by Ms. Knight. While the record title to the parties holdings is not part of the case which was tried to me, the evidence establishes that the Caron family has paid, all along, the real estate taxes assessed by the City with respect to the disputed area. The tax assessment parcels put the disputed area as part of 4 Andover, and do not show the taxed parcels of the parties as dividing along the rear wall of the Caron garage.
11. At the time the Carrs acquired title to 7 River Street, there was a wooden deck approximately five to six inches high off the ground covering the entire space from the rear of the Carrs' kitchen wing to the easterly portion of the rear of the Caron's garage. The deck extended over the entire area between the garage and the Carr house. The deck touched both the back of the Carrs dwelling and the rear of the Carons garage, and covered the portion of the disputed area on the southern side of the Carr land which is claimed by the Carrs and the Carons. There also was a five foot high wooden palisades fence extending from the southwest corner of the Carr kitchen wing to the vertical center line of the Caron garage. The fence touched both the Carrs house and the garage, and served to separate the backyards of the Carr and Knight properties.
12. Prior to the installation of this deck, a wood plank fence extended roughly east and west along or near the entire length of the northern border of 4 Andover Street. This fence followed the northern boundary line of the Caron property and, as it headed west, went behind the garage to about the northwest corner of the Caron property. From approximately 1950 to 1967, Walter Caron used the space that existed in between the garage and the wood plank fence to store floorboards and some ladders. Joel Caron also ventured into this small, narrow area at the rear of the garage occasionally as a child when playing in his familys back yard.
13. Walter Caron began making repairs to this fence soon after he moved into 4 Andover Street in 1950. He started on the east and worked west (towards the garage). When he got to the garage, he stopped fixing the fence because he ran out of money, leaving the old segment of the fence behind the garage.
14. In 1966, Walter Caron again made repairs to the fence. While he was working, he was approached by Joanna Schappa, the then owner of 7 River Street. She asked if Walter would allow her to remove the portion of the fence behind the garage and use the area thus opened up as part of her yard. In response, Walter Caron created what the parties now refer to as the jog. He built a new short section of the fence, running roughly north and south, at a right angle to the existing fence, spanning the approximate two foot distance south to the northeast corner of the garage. In doing this, Walter Caron largely fenced himself out of the area that is disputed today.
15. Sometime after Walter Caron fenced his property off from the disputed area, and before the Carrs acquired title, the deck was built in the backyard of 7 River Street, running to the rear wall of the Caron garage.
16. In June of 1972, the Carrs visited 7 River Street because they were interested in purchasing the property. During this visit, they noticed that the deck and fence were in place in the same location as described above. They ended up buying the property in May of the following year.
17. The Carrs presented photographs and testimonial evidence concerning the existence and use of the deck in their backyard from when they first viewed the property in 1972 to 1989. The uses included several birthday parties for their children, family and neighborhood gatherings, and other general uses.
18. The deck fell into disrepair, rotting out in places, and was removed by the Carrs. The date of its removal was the subject of evidence I heard at trial. There is no photographic evidence which I credit which shows the deck in place after 1989. The deck certainly was removed before November, 1991,when Joel Caron received a notice that Ms. Knight was seeking approval from the Salem Board of Appeals for a variance, so that she could have the deck on the back of her home extended; he went then to look at the property setbacks in the Carr and Knight backyards. Joel Caron entered the plaintiffs' backyards by walking on the western side of his garage, and was successful entering Knight's backyard through a space in the fence, and walking from Knights backyard to the Carrs. Joel Caron testified that there was no deck in place, and also that the fence between the 7 and 11 River Street properties was gone. I credit this testimony.
19. After the Carrs removed the deck, they did not build a replacement deck. There has been no physical structure of any substance in place in the rear of the Carr backyard, and in particular in the disputed area, since the deck went away. The fence separating the Carr and Knight backyards also was removed around the same time as the deck. I conclude, on the evidence I credit, that this was in 1989. A new fence separating the Carr and Knight properties was not erected by Mr. Carr until July 4, 1996. The deck never has been replaced.
20. The Carrs used their backyard over the years for neighborhood events and birthday parties for their children.
21. The western side of the Carons' garage has a two foot space between the side of the garage and the western boundary of the property. This space has been used for storage of ladders and on occasion as a passageway to get from the 4 Andover Street property to the back yards of the 7 and 11 River Street properties. It was possible, huggin along the garage and passing down this narrow strip, to get from River Street and the Carr property to the Caron property and Andover Street, without having to walk all the way around the block on the sidewalks. On one occasion, in 1994, the Carrs acquired a new puppy, and invited the Carons over to their yard to meet it; the Carons used this pathway just on the side of the garage to get into the Carrs' backyard; they did not need to make the longer walk around the block.
22. In 1993, Joel Caron petitioned the Salem Historical Commission for permission to extend his fence to the northwestern corner of his property line, which would have the new fence extend behind the garage, more or less as it was in the 1950s. The new fence would extend east to west at or roughly parallel to the northern boundary line of 4 Andover Street, thereby enclosing the disputed area in the Carons yard. John Carr was Vice Chair of the Salem Historical Commission at the time of Mr. Caron's application. During the hearing before the Commission regarding Caron's proposed fence, Carr made a motion that the Commission approve Caron's application, and the Commission unanimously approved the project. Caron had one year to complete the project, but did not build the fence within that time.
23. On July 4, 1996, Carr installed a green trellis fence that separated his and Knight's property. On all of the evidence, weighing it as trier of fact, I conclude and find that there was a gap of at least six years between the removal of the deck and the first fence, and the erection of the second green fence.
24. Ms. Knight gardened on the land on her side of the fence that separated her yard from the Carrs'. She testified that she would plant from the northernmost part of the fence to the southeastern corner of her property, including on the disputed area. While I do accept that Ms. Knight did garden regularly in her backyard, as a general matter, I find that the evidence of her frequently and extensively making plantings in the disputed area is not at all robust and convincing, and I find that if it did occur, it happened infrequently and not for any prolonged time. Ms. Knight also testified that she would use her backyard for outdoor parties, yard sales, and space for her tenant's dog to sleep. Knight also confirmed that there was a time where there was no fence separating her property from the Carrs backyard.
It is well settled in Massachusetts that to establish title by adverse possession to land owned of record by another, the claimant must show "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); Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G.L. c. 260, § 21. A claimant can tack on time by adding together the periods of adverse possession by successive occupiers. Lucie v. Parsons, 192 Mass. 8 , 12 (1906); Wishart v. McKnight, 178 Mass. 356 , 360-362 (1901). The nature and extent of use required to establish title by adverse possession varies "with the character of the land, the purposes for which it is adapted, and the uses to which it has been put." LaChance v. Rubashe, 301 Mass. 488 , 490 (1938). The claimant must show that he or she made changes to the land that constitute "such a control or 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). Acts of ownership must be open and notorious so as to place the true owner "on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action." Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). While the use must be open and notorious, "there is no requirement that the true owner be given explicit notice of adverse use." Lawrence, 439 Mass. at 421. "Whether, in a particular case, the elements [of adverse possession] are sufficiently shown is essentially a question of fact." Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961).
To resolve the adverse possession claims made by the Carrs and Ms. Knight, I apply the decisional law of adverse possession to the facts I have found in light of the credible evidence presented to me at trial. I start with the foundational premise that it is the plaintiffs who carry the burden to prove, by a preponderance of the evidence, continuous, hostile, open, actual, and exclusive use of the disputed area for at least twenty years. The burden of proof for adverse possession rests entirelyas to each elementon the person claiming title to land based on adverse possession. Lawrence, 439 Mass. at 421; Mendoca 354 Mass. at 326. Here, the burden is on the Carrs and Ms. Knight to prove continuous, hostile, open, actual, exclusive and adverse use of the part of the disputed area they are claiming for no less than twenty years. Both plaintiffs have failed to carry their burden.
A. Adverse Possession of the Disputed Area by the Carrs
1. Use of the disputed area by the existence of the backyard deck
The Carrs have failed to meet their burden of showing that the deck was in existence continuously for twenty years. The Carrs deck does establish, for the time it stood, actual use and occupation of the disputed area located behind the Carons garage. However, I do not find that the deck was in place for the requisite twenty years. The credible evidence shows me that the first instance of the existence of the deck was in June of 1972, when the Carrs visited the 7 River Street property as prospective purchasers. I give credit to the testimony that on this visit, the Carrs noticed the deck (and fence separating 7 River Street and 11 River Street) to be in place. This is the earliest moment I am able, based on the evidence, to fix these structures as in existence. The last credible instance where I find that the deck existed is on June 14, 1989, as shown to me by those of the photographic exhibits which I find persuasive and instructive on this pivotal question. Additionally, Mr. Caron testified that in November, 1991, he went into the Carrs back yard to have a conversation about the boundary line between the two properties, after learning that Ms. Knight wanted to extend her deck and needed approval from the Salem Zoning Board of Appeals. I believe Mr. Caron when he said that he noticed that neither the deck nor the fence were in place during that conversation, because the route he took to enter the Carr back yard was walking north on the westerly side of his garage, and stepping onto both Knight's back yard, and the Carrs yard. This would not have been possible if the deck and fence were still in place. The Carrs claim that the deck still was in place in 1992, but I do not find that to be so. One of the photographs advanced as proof of this contention, one that the Carrs claim was taken in 1992, only shows that there is a shovel sticking out of the dirt in the area where the deck once was.
Additionally, I can not give weight to a second photo claimed by the Carrs to have been taken in 1993, which shows the deck and fence in place. This is one of the photographs without a timestamp, and the only evidence that points to the fact that the date of the picture is 1993, is Mrs. Carr's testimony simply stating that it was taken during that year. I do not believe that it was.
As a general matter, and looking at the many photographs introduced in support of the Carrs adverse possession case, I find them, in the aggregate, from the plaintiffs perspective largely unpersuasive and uninformative. More than eighty photograph came into the record, and less than twenty percent of them even afford a brief glimpse of the deck, particularly back in the relevant area in dispute. And while to an extent the photographs catalog some general use of the Carr backyard for social activities, there are none of them (whether they may have been taken when the deck existed or after) that I find useful in proving to me that any specific use and occupation of the requisite sort went on in the disputed area itself, as opposed to in the rest of the backyard. Most tellingly, I do not find credible any evidence that the photographs depict helpfully any scenes later than 1989. I conclude that the deck ceased to be around 1989, and that, despite contrary testimony, it did not persist until the Fall of 1993, as the Carrs contend.
Further, 1993 was the same year when Mr. Caron applied to the Salem Historical Commission for approval to extend the fence between his and the Carrs' property behind his garage. Mr. Carr, acting as vice chair of the Commission, voted to approve Mr. Caron's application. I conclude that if the deck actually existed in 1993, as the Carrs claim, then Mr. Carr would not have been agreeable to allowing Mr. Caron to extend his fence to the northwest corner of his own property. That would have caused the proposed new fence to be built through the deck, which, while it earlier existed, extended from the outside of the rear of the Carr house and touched the back of the Caron garage. If the deck had been in place in 1993, it would have had to be removed so that the Carons could extend the fence to the northwest corner of their property. Mr. Carrs vote in favor of Carons fence extension project not only casts considerable doubt as to whether the deck was in place at that time (I find that it was not); the vote also casts doubt on whether Carr thought he had any rights to the disputed area at that time in 1993.
Twenty years of the deck existing over the disputed area would be sufficient for the Carrs to carry their burden of proof as to the duration of their adverse possession (assuming all the other elements of such a claim proved up). I do not find, however, credible evidence showing that the deck was in place long enough to cover the entire twenty-years statutorily required. I find proof showing only seventeen years of use of the disputed area based on the decks existence of the deck. This comes up short. See Hewitt v. Peterson, 253 Mass. 92 , 94 (1925) (nineteen years, eleven months and five days insufficient).
2. Use of the disputed area based on the existence of the fence that separated the Carr and Knight back yards
I find that the fence that separated the Carr and Knight properties came down around the same time that the deck was removed. A portion of the fence did exist over the disputed area, cutting through it perpendicularly, but when that fence was removed, that action interrupted the continuity of that portion of the fence as satisfactory proof of the continuous possession requirement. In fact, the new green trellis fence was not installed until July 4, 1996. Ms. Carr testified that there could have been three years with no fence separating the Carr and Knight properties. The credible evidence shows to me an at least six-year period between the removal of the first fence and the erection of the second green trellis fence. This use of the disputed area by the existence of the fence can not be considered continuous. Kendall, 413 Mass. at 621-622 (non permissive use must be continuous for twenty years). A short time to take down one fence (or other improvement) and replace it with another ought not defeat automatically the continuity requirement. This is because such a prompt replacement project might well be consistent with action a record owner might herself take. While "acts similar to those which are usually and ordinarily associated with ownership" can show dominion over the disputed area, Peck, 34 Mass. App. Ct. at 556 (quoting LaChance, 301 Mass. at 491), it can not be said that a six year gap between removal of the first fence and the erection of the second green fence between the plaintiffs' properties is similar to a homeowner removing a decrepit fence and replacing it soon thereafter with a new one. See Old South Socy v. Wainwright, 156 Mass. 115 , 120-121 (1892) (period of six years during which a gate was removed was not continuous).
Even if there was continuously a fence in place, something I do not find as a fact, it would only cover a small slice of the area the Carrs are claiming to have possessed adversely. See Peck, 34 Mass. App. Ct. at 556 (quoting Kendall, 413 Mass. at 624) ("[a] judge must examine the nature of the occupancy in relation to the character of the land."). The fence alone can not show adequate control and dominion over the entire disputed area. The fences which at times have separated the Carr and Knight properties, therefore, do not establish a twenty-year period of adverse use of the disputed area.
3. Other claimed uses of the disputed area by the Carrs
The Carrs presented additional evidence of purported uses of the disputed area. Photographs of birthday parties and neighborhood gatherings came into evidence. These depicted, however, only general use of the back yard. Even if one of the Carrs' guests happened to have been standing on the disputed area during one of these events, getting captured on film while doing so (something I am not convinced is in fact the case), that would not rise to the level of proof necessary to show continuous adverse use of the disputed area. Similarly, general use of the backyard near the rear of the Carons garage by the Carr family and their guests does not amount to specific, continuous use of the disputed area. The evidence merely shows to me that the Carr family and other people may have stood occasionally on or near the disputed area when they were attending events in the Carrs' backyard. These types of unspecific and intermitted uses do not rise to the required dominion over the strip of land they claim to possess adversely. Peck, 34 Mass. App. Ct. at 556.
4. Lack of proof of exclusive use of the disputed area
An essential ingredient of adverse possession is that the disputed parcel be occupied exclusively by the claimant. If its use is shared, whether with the true record owner or others, a title by adverse possession cannot arise. Claimants must show proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years. Lawrence, 439 Mass. at 421 (emphasis supplied). There is little dispute that a portion of the disputed area includes, at or just below the ground level, the foundation of the garage. That rubble foundation is, as to be expected, somewhat irregular, but it extends into the disputed area, I find, a distance of six and maybe eight inches. There is no doubt that this rubble foundation has projected into the disputed area for as long as the garage has been in existence, supported on that foundation. It serves the defendants, keeping their garage standing. It represents occupation and use of the disputed area not by the plaintiffs, but by the defendants as owners and occupiers of the garage structure, of which the foundation is an integral part. This is true as to both parts of the disputed areathat claimed by the Carrs and that claimed by Ms. Knight. There also is an eave that projects overhead from the rear wall of the garage into the disputed area, approximately for eight inches.
This signifies that what possession of the disputed area has taken place by the plaintiffs over the years has been shared, to the degree of the projection of the garage foundation and rear roof eave, at least, with the defendants and their family. This means that the plaintiffs claim to the disputed area cannot be found to be exclusive, taking away from them an essential element of their required proof of acquisition of title by adverse possession.
I therefore find and rule that the Carrs have failed to meet their burden of proving that the use of the strip of land behind the Carons' garage by the existence of the deck and fence, and by any other claimed use and occupation, was legally sufficient to establish adverse possession.
B. Adverse Possession of the Disputed Area by Knight
Ms. Knight acquired title to her property on August 1, 1977. Her complaint was filed on October 2, 1996; it alleged that her adverse possession of the disputed area tacked on the use of her predecessor in title going back to the 1940s. Ms. Knight presented no satisfying evidence at trial, however, and made no supported assertions as to use of the disputed area by any predecessors in title to 11 River Street. The only evidence as to the tacking of possession based on the time when Knight's predecessor lived in the house was during Ms. Carr's testimony, but she only stated that the disputed area was "always available to them. They always used it..." ("they" being the previous owners of the Knight property). Ms. Carr failed to offer any details regarding specifically how or when a previous owner of Knight's property used the disputed area. And, unlike in the case of 7 River Street, Ms. Knights 11 River Street yard did not have on it a deck or other structure which extended into the disputed area as to which she might claim permanent occupation predating her tenure at this location. The time between Knight acquiring title to her property and the filing of the complaint is nineteen years, two months, and one day.
Knight did provide testimony of occasional use of the disputed area, by hosting backyard parties, yard sales, gardening along the property line she shared with the Carrs, mowing the grass, and her tenant's dog using the back yard, but these activities do not rise to the level of domination and occupation demonstrating acts of ownership. See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 553 (1993) (lawn mowing, leaf raking, installation of a henhouse, clothesline and sandbox, maintenance of a compost and lumber pile, pruning and removal of dead trees, and holding of picnics on disputed land not sufficient to prove actual use). General use of her backyard area of this character by Knight (and, even though not established, by her predecessor in title) does not equate to continuous, regular, and obvious use of the disputed area she claims to own now by possession. See Tinker v. Bessel, 213 Mass. 74 , 76 (1912) ("[t]he definite description of [adversely possessed land] which would be necessary for a valid grant, must be supplied from evidence of actual use. It must be explicit and not left to inference or implication."). Even if Ms. Knight's claimed uses did rise to the level of actual use (something I do not, as trier of fact, find), her claim of adverse possession must fail because the number of days from the date of acquiring title to 11 River Street to the date that her complaint was filed do not meet the twenty-year statutory requirement. See Hewitt, 253 Mass. at 94 (nineteen years, eleven months and five days insufficient); G.L. 260. § 21. In addition, as I have said, I also find Ms. Knights claim defeated by the shared use of the disputed area with the Caron family brought about by the extension of the garages foundation into the strip.
I therefore find and rule that the Ms. Knight has failed to meet her burden of proving that the use of the strip of land behind the Carons' garage was legally sufficient to establish adverse possession.
C. The Soldiers and Sailors' Civil Relief Act of 1940
Because the parties have spent energy addressing the issue, I deal briefly with the question of the effect of Joel Carons military service on the accrual of adverse possession claimed by the plaintiffs. Ultimately, I need not answer this question in a binding way, however, as it is not essential to the decision I reach.
Joel Caron provided credible evidence of his 238 days of active military service as a member of the United States Air Force Reserve. He claims that under the Soldiers and Sailors' Civil Relief Act of 1940 (since rebranded as the Federal Servicemembers Civil Relief Act, see 50 U.S.C. app. §§ 501 et seq.(2006)), the time Caron was away on active duty should not be included when determining whether the twenty-year period required for an adverse possession claim has been met by the plaintiffs. For a general treatment of the Act, see HSBC Bank USA, N.A., v. Matt, 464 Mass. 193 (2013). The Act states in relevant part: "the period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns . . . ." 50 U.S.C. App. § 525. The United States Supreme Court has instructed that the statute should be read "with an eye friendly to those who dropped their affairs to answer their country's call." Le Maistre v. Leffers, 333 U.S. 1, 6 (1948).
I am not convinced that the Act applies to Joel Caron in this case in the manner he suggests. His argument is that the 238 days he was required to be away from home on service should not count towards the twenty-year requirement the plaintiffs have the burden of proving to establish adverse possession of the disputed area, essentially forcing the plaintiffs to show twenty years plus 238 days to bring a successful claim for adverse possession. There was no decisional law provided to me at trial that specifically addresses the question whether short stints of active duty by a reservist, mostly two to four days at a time in Joel Caron's case, can be added together to entitle him to the same protection that would be provided to a member of the military who was on active duty for a longer and continuous stretch of time. The Act seems to be intended to protect military personnel plucked from everyday life to serve their country, by tolling the statute of limitations during a period of extended military service. Here, Caron was living at 4 Andover Street for the majority of the time he was an Air Force Reservist, only getting called away for two to four days at a time. He was perfectly able to observe any adverse or hostile activity from the Carrs and Ms. Knight intruding on the disputed area located behind his garage, and, if motivated to protect his property rights by initiating judicial action, to have done so. There is no good reason shown why, in the circumstances of Joel Carons episodic active duty service, he suffered any resulting disability in protecting his legal and property rights in the usual way. Particularly given the absence of any precedent applying the benefits of the Act in a setting such as played out here, I am disinclined to give the Act such a reading.
Even if the Act did apply to Mr. Caron in the way he says, his wife Judith is named on the recorded deed dated October 10, 1991, and is a named defendant in this case. If Joel Caron was away for a short time performing his duties for the Air Force, Judith Caron was still at home at 4 Andover Street and capable of witnessing what was taking place on the disputed area. She was on notice, and had the opportunity to vindicate her own rights, and those of her husband, by legal action. Ottavia, 338 Mass. at 333; Boston Seaman's Friend Socy, Inc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985).
Most importantly, I need not rely on my opinion on this legal question to decide the question of adverse possession as tried to me. This defense has no bearing on the outcome of this case, because neither the Carrs nor Ms. Knight have carried their burden of showing continuous, hostile, open, actual, exclusive and adverse use of the parts of the disputed area they claim for the requisite twenty years. The judgment that will enter in this case will declare that the plaintiffs have failed to prove acquisition of title to the disputed area by adverse possession.
Persuaded to do so by the plaintiffs enthusiasm for their case for adverse possession, the court tried that question first. Now, with the court having weighed the evidence on plaintiffs claimed acquisition of title by use, and having found that the plaintiffs failed to sustain their burden of proof, the court must determine how this long-running case will move to its conclusion. Counsel are to confer promptly, and in a written report to be received by the court not later than August 1, 2016, are to give the court the parties views on how best the court can bring this case to judgment, and how the court now will decide which of the parties has title to this slim, tapering, twenty-one square foot triangle of land at the rear of their respective back yards.