FAY B. SMITH and JAMES M. SMITH v. RICHARD SANFORD and GLORIA J. SANFORD, both individually and as TRUSTEES OF THE GLORIA J. SANFORD TRUST.

INTRODUCTION

Plaintiffs Fay Smith and James Smith ("Plaintiffs" or the "Smiths") are the record owners of residential property located at 471 Huckins Neck Road in Barnstable, Massachusetts. The Defendants are Richard Sanford and Gloria Sanford, individually and as Trustees of the Gloria J. Sanford Trust ("Defendants" or the "Sanfords"). The Sanfords, as Trustees of the Gloria J. Sanford Trust, hold record title to adjacent property at 491 Huckins Neck Road. The Plaintiffs filed this action on August 16, 2012, seeking declaratory and equitable relief to establish their rights in a narrow strip of the Defendants' lot, lying along the Parties' joint boundary line. The Smiths claim to have adversely acquired title to the strip of land or, alternatively, a prescriptive easement to use the strip. In Defendants' Answer and Counterclaim, filed on September 10, 2012, the Sanfords deny that the Plaintiffs have acquired any rights in the strip, and counterclaim for declaratory judgment that they hold their lot free of any claims of the Plaintiffs. They also counterclaim for trespass and nuisance damages. The Plaintiffs answered the Defendants' counterclaims on September 28, 2012, denying the Defendants' right to recover damages, alleging that the trespass and nuisance claims are outside the Land Court's subject matter jurisdiction. [Note 1]

On July 10, 2015, the Parties filed Cross-Motions for Summary Judgment, seeking declaratory judgments under the Complaint and Count I of the Counterclaim concerning the Parties' respective rights in the disputed strip. The Parties also filed a Joint Stipulation in Support of Motions for Summary Judgment and Trial. The Parties filed their oppositions on August 8, 2015. The court took the Cross-Motions under advisement following a hearing on October 6, 2015. Now for the reasons discussed below, I find that the Defendants are entitled to summary judgment in their favor, declaring that that the Plaintiffs have acquired no rights in the disputed strip on Defendants' lot.

UNDISPUTED MATERIAL FACTS

Based upon the pleadings and the Parties' Joint Stipulation in Support of Motions for Summary Judgment and Trial, I find that the following material facts are undisputed:

1. The Plaintiffs, James Smith and Fay Smith, acquired title to their property at 471 Huckins Neck Road in Centerville ("Lot 7A") by deed dated July 28, 2005 from Donald J. Summers ("Donald") and Rodney W. Haas, Trustees of the Margaret M. Summers 1997 Trust u/d/t March 12, 1997. [Note 2] Prior to her death in September, 2004, Margaret M. Summers ("Margaret") had served as co-trustee with her husband, Donald. Margaret, individually, was the immediate predecessor in title to the Margaret M. Summers 1997 Trust, having conveyed Lot 7A to the Trust by deed dated May 6, 1999. [Note 3] Margaret M. Summers originally acquired Lot 7A by deed dated October 26, 1989. [Note 4]

2. The Defendants, Richard D. Sanford and Gloria J. Sanford, acquired title to their property at 491 Huckins Neck Road ("Lot 4") by deed dated November 16, 2009 from Donald J. Summers and Rodney W. Hass, co-trustees of the Donald J. Summers 1997 Trust u/d/t March 12, 1997. [Note 5] Donald had conveyed Lot 4 to himself and his wife Margaret, as co- trustees of the Donald J. Summers 1997 Trust in May, 1999. [Note 6] Donald and Margaret had originally acquired Lot 4 on June 15, 1987 as tenants by the entirety, [Note 7] and subsequently transferred the lot to Donald, individually, on October 25, 1989. [Note 8]

3. Lot 4 and Lot 7A are depicted on an unsigned survey plan attached to this Decision, which the Parties have agreed to use for purposes of showing the Parties' respective lots and the disputed strip. The Parties refer to the plan as the "Summers' deposition plan."

4. According to the deeds and the Summers' deposition plan, both the Plaintiffs' Lot 7A and the Defendants' Lot 4 abut Bearses Pond. The common boundary line between Lot 7A and Lot 4, runs northeasterly from Bearses Pond to Huckins Neck Road, approximately 228 feet.

5. The portion of the Defendants' Lot 4 claimed by the Plaintiffs is a very narrow, triangular strip of land, approximately 160 square feet in area. According to the Summers' deposition plan, it extends approximately 72 feet along the Defendants' side of the common boundary line from Bearses Pond. It is approximately eight feet wide at its widest point, at the shoreline of Bearses Pond.

6. The disputed strip is located entirely within the deeded boundaries of Lot 4. For many years, however, a split rail fence was located on Lot 4, very close to, but not on, the common boundary between Lot 7A and Lot 4, leaving the disputed strip on the Lot 7A side of the fence. The approximately 70 foot length of split rail fence, which existed before Donald and Margaret acquired title to Lot 4 in June, 1987, was unilaterally removed by the Defendants sometime after this lawsuit commenced. The fence had a gap in it with shrubbery on either side. According to the Summers' deposition plan, the fence did not run the entire length of Lot 4 from the Pond to Huckins Neck Road, did not run to the edge of the Pond, and did not enclose the disputed strip.

7. From March, 1987 until Margaret's death in September, 2004, Donald and Margaret resided together in the house on Lot 4 (now the Sanfords' lot) as their sole residence.

8. After Margaret conveyed her interest in Lot 4 to Donald, and purchased Lot 7A in her own name in October, 1998, the couple used the two lots together, without preserving or caring about the actual location of the deeded boundary line. [Note 9] Donald routinely performed maintenance on Margaret's Lot 7A (now the Smiths' lot), and used Lot 7A for launching and docking his boat. He accessed the dock and his boat through the gap in the fence. Margaret used both lots as her "lakefront backyard." Margaret and Donald's daughter and her family occupied the house on Lot 7A for a period of time, without paying rent to Margaret, and they had permission to come onto Lot 4, and to use the backyards of both Lots.

9. Donald did not know the exact location of the boundary line between Lot 4 and Lot 7A. Although he believed that the split rail fence marked the boundary, it didn't matter to him because he and his wife each owned one of the lots. At some point, Donald added wire fencing onto the existing split rail fence.

10. After Lot 7A and Lot 4 came into trust ownership, Margaret and Donald continued to reside in the house on Lot 4, and continued to use the two lots with mutual permission.

11. After the Smiths acquired title to Lot 7A in July 2005, they used the disputed strip for storage and launching of their boats without regard for the deeded property boundary line location. They also maintained the disputed strip by keeping it clear of vegetation. They treated the split rail fence as marking the boundary between Lot 4 and Lot 7A.

12. The Smiths' use of the disputed strip since July 28, 2005 was done openly, and without permission.

13. The Smiths have owned Lot 7A for less than twenty years.

DISCUSSION

The Plaintiffs claim to have acquired either fee ownership of the disputed strip or, alternatively, a prescriptive easement to use the disputed strip. "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) (internal quotation marks omitted). With the exception of exclusive possession, the standards for proving adverse possession apply equally to a claim of easement by prescription. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007).

"Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). Here, the Parties have stipulated to the pertinent facts and documents. On the basis of the undisputed material facts, I conclude that Plaintiffs have no expectation of proving at least twenty continuous years of non-permissive use. Therefore, both their alternative claims must fail, and the Defendants are entitled to summary judgment in their favor declaring that the Plaintiffs have not acquired any interests in the disputed strip through either adverse possession or prescriptive use.

As a threshold matter, the Parties agree that the Smith's use of the disputed strip, from the time they acquired title to Lot 7A on July 28, 2005, until they filed this action on August 16, 2012, was open and without permission. They also agree that, in order to establish either adverse possession or a prescriptive easement, the Smiths' seven years of non-permissive use would have to be tacked to continuous, non-permissive use of the disputed strip by their predecessors in title for the immediately preceding thirteen years starting no later than August 16, 1992 – first, by Margaret Summers, individually, until May 1999 when she conveyed Lot 7A to herself and her husband as the co-trustees of the Margaret M. Summers 1997 Trust, and then the co-trustees of said Trust until July 2005, when Lot 7A was conveyed to the Smiths. See, e.g., Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961) (party claiming adverse possession allowed to satisfy twenty-years prescriptive period by tacking their predecessor in title's adverse possession to their own); Ryan v. Stavros, 348 Mass. at 264 ("‘A prescriptive period resulting in the creation of a prescriptive right can be made up of several periods of successive use by different persons provided there is privity between the persons making the successive uses.'" (quoting Am. Law of Property, § 8.59)).

Here, however, the fact that the Smiths are in privity with Margaret Summers and the Margaret M. Summers 1997 Trust, is not sufficient to permit tacking unless the use of the disputed strip by the Smiths' predecessors in interest was also adverse to the owners of Lot 4 (i.e., Donald and the co-trustees of the Donald J. Summers 1997 Trust) during the thirteen years prior to the Smiths' acquisition of Lot 7A. The summary judgment record plainly establishes that their use was not adverse.

According to the facts agreed upon by the Parties, in the period between 1989 when Margaret first acquired Lot 7A, and her death in September, 2004, Donald and Margaret both treated and used Lot 4, including the portion of Lot 4 containing the disputed strip, as if there was no legal boundary separating Lot 7A from Lot 4. Indeed the Parties have stipulated that Donald and Margaret "always had permission" from each other to enter and use each other's lots. Donald and Margaret Summers' conduct prior to 2005 accordingly defeats the Plaintiffs' adverse claims since, without the tacking, the period of Plaintiffs' own use of the disputed strip falls considerably short of the twenty years of continuous, non-permissive use required to establish either adverse possession or a prescriptive easement. [Note 10]

CONCLUSION

For the reasons discussed, I conclude that the Defendants are entitled to summary judgment in their favor on the Plaintiffs' Complaint and under Count I of their Counterclaim, declaring that Defendants hold title to the disputed strip free from any claims for adverse possession or prescriptive rights by the Plaintiffs.

Final judgment shall not enter at this time, as Defendants' counterclaim for trespass damages remains unresolved. The Defendants shall notify the court in writing within ten days of the below date to inform the court whether or not they wish to proceed with prosecution of the trespass claim. If they fail to notify the court within said ten days of an intent to prosecute the trespass claim, the Count II counterclaim will be deemed waived, and final judgment shall enter on the Plaintiffs' claims and on the Defendants' Count I counterclaim for declaratory relief.

exhibit 1