MISC 15-000351

August 29, 2017

Middlesex, ss.



The plaintiffs Olga Lutz and Mark Lutz (the "Lutzes") reside at 22 Cedar Street in Somerville, adjacent to a property owned by the defendant Amy Bauman. The Lutzes claim to have acquired portions of Bauman's property by adverse possession; they claim to have used and improved a narrow strip of land bordering their own lot line that contains a pathway and a planting bed, and have likewise parked a car on a concrete pad adjacent to this walkway and planting bed. On September 9, 2015, the plaintiffs filed the present action, and filed an amended complaint on August 16, 2016, requesting declaratory relief that they have either acquired these areas by adverse possession, or have acquired prescriptive easements to continue using these areas.

The case was tried before me on January 18, 2017, with testimony from four fact witnesses. I took a view of the disputed property on January 17, 2017. Following the filing of post-trial submissions by the Lutzes and Bauman respectively on March 28 and March 27, 2017, and closing arguments on May 17, 2017, I took the matter under advisement. For the reasons stated below, I find and rule that the Lutzes have acquired by adverse possession the pathway and planting bed area shown as Lot B2 on the plan supplied here as Appendix A, and have acquired an easement by prescription to park one vehicle on a part of the concrete pad shown as Lot B1 on the same plan. [Note 1]


Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, 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:

The Properties

1. The areas in dispute are portions of a 3,040-square-foot rectangular lot with an address of 0 Cedar Avenue in Somerville (the "Locus"), which is owned by defendant Amy Bauman. The Locus is a vacant lot, unimproved except as described below.

2. The western edge of the Locus abuts 22 Cedar Avenue, the lot owned by the plaintiffs.

3. The Locus is steeply sloped downward from its rear, northeast corner towards the front of the Locus fronting Cedar Avenue.

4. The southern half of the Locus' western edge consists of a cleared dirt pathway approximately three to five feet wide and forty-five feet long. The western edge of this pathway is bounded by the plaintiffs' lot line. The eastern edge of this pathway is bounded by a planting bed that is enclosed by a low stone retaining wall. This planting bed is approximately one foot high, two to three feet wide, and twenty feet long, and contains a number of trees and assorted plantings. This pathway and planting bed is depicted on the plan submitted as an agreed exhibit by the parties as "Lot B2." [Note 2]

5. To the north, the planting bed on the Locus intersects the bottom of the slope that descends from the northeast of the Locus. Where the planting bed intersects with the slope, the western retaining wall of the planting bed continues northerly along the bottom of the slope for approximately twenty feet, holding back the slope from the pathway. The wall then turns ninety degrees and continues westerly towards the plaintiff's property.

6. The southern edge of this planting bed terminates approximately ten feet from Cedar Avenue. The stone retaining wall that makes up its eastern edge continues southerly past the southern edge of the planting bed, intersecting with the sidewalk along Cedar Avenue; this extension of the stone retaining wall is topped with a split rail fence. This wall then turns ninety degrees and runs westerly from this point another ten feet along Cedar Avenue and onto the plaintiffs' property. The split rail fence continues along the top of this section of the stone wall.

7. Directly to the east of the planting bed is an area paved with a concrete pad, roughly rectangular in shape and approximately eighteen feet wide and twenty-two feet deep, that has been carved out of the slope. This pad is bounded on its north and east sides by a concrete retaining wall several feet high that holds back the steep slope descending from the northeast corner of the Locus; the concrete retaining wall is covered with a facade of stockade fencing. As it extends southerly towards Cedar Avenue, the eastern side of the concrete retaining wall also consists partially of large, stacked stone blocks. The pad is bounded on its southern edge by Cedar Avenue, and on its western edge by the low retaining wall of the planting bed. This concrete pad is the disputed parking area.

8. The Lutzes acquired 22 Cedar Avenue, improved by a single-family dwelling, but with no garage, driveway or other area on the property suitable for off-street parking, by deed dated October 28, 1982 and recorded in the Middlesex County South District Registry of Deeds (the "Registry") in Book 14771, Page 245.

9. At some point prior to 1982, there was a garage on the concrete pad on the Locus. This garage collapsed or was torn down prior to the plaintiffs' acquisition of 22 Cedar Avenue next door. When the Lutzes moved in, the concrete pad was covered in trash, but the remains of the garage structure were no longer present. I do not credit the Lutzes' testimony that some of the debris on the concrete pad when they acquired their property consisted of the remains of the garage structure.

10. After the Lutzes acquired 22 Cedar Avenue, Mark Lutz cleared trash from the concrete pad on the Locus. This trash consisted of bottles, cans, and a small amount of wood.

11. The Lutzes have at all relevant times owned only one car at a time. They began parking on the concrete pad after acquiring 22 Cedar Avenue in 1982. They were aware, at the time, that they did not have record title to this area. They continued parking on the pad daily through the filing of this action. They did not contact the city of Somerville, which was the record owner of the Locus at the time they began using the pad, or Robert Shannon ("Shannon"), who purchased the Locus from the city of Somerville, for the purpose of acquiring permission to use the Locus, nor did Shannon or Somerville contact them.

12. Within a year of acquiring 22 Cedar Avenue, Mark Lutz constructed the stone retaining wall at the northern edge of the pathway area abutting the plaintiffs' property. [Note 3]

13. Shortly after acquiring 22 Cedar Avenue, he also erected a split rail fence that runs along the southern edge of this pathway area, and along the border of the pathway area and the concrete pad. At some point, he replaced this fence. [Note 4]

14. The plaintiffs initially cleared the pathway area of dirt using a backhoe. [Note 5] Mark Lutz has planted and maintained vegetation along this pathway area in a planting bed during the summertime, cleared snow in the wintertime, and regularly removed debris that falls from the hill. [Note 6]

15. At some point, he constructed a low stone wall [Note 7] along the southern edge of the area, and a retaining wall along the eastern edge of the pathway where it meets the hill.

16. The plaintiffs affixed stockade fencing to the retaining walls on the northern and eastern sides of the concrete pad. They have replaced this fencing two or three times since 1982.

17. I do not credit the plaintiffs' testimony that Mark Lutz made repairs to the retaining wall abutting the eastern edge of the concrete pad.

18. By deed dated February 8, 1984 and recorded in the Registry in Book 15447, Page 436, the city of Somerville conveyed the Locus to Robert Shannon.

19. At some point, the plaintiffs became aware that Shannon had purchased the Locus. Olga Lutz subsequently discovered that Shannon worked in Medford. However, the plaintiffs never met with or spoke with Shannon, and did not attempt to contact him.

20. In June, 1997, Shannon was contacted by telephone by defendant Amy Bauman, who had purchased property at 21 Mountain Avenue, abutting the Locus to the northeast, to discuss potential sale of the Locus by Shannon to Bauman.

21. Bauman was interested in acquiring the Locus so she could park on it, and inquired of Shannon as to the status of the Locus. No sale was consummated at that time, but Shannon confirmed that the Locus was a buildable lot, and he further informed Bauman that he was aware that "someone" was parking on the Locus. As will be further discussed below, I find and rule that Shannon was aware that the plaintiffs (or someone) was parking on his property, but I further find and rule that his knowledge and apparent acquiescence did not constitute permission.

22. Robert Shannon died in 2000.

23. On June 6, 2010, the city of Somerville (again) executed an instrument of taking for failure to pay taxes against the Locus, recorded in the Registry in Book 55005, Page 38.

24. By deed dated September 30, 2013, and recorded in the Registry in Book 62731, Page 41, Carolyn Shannon, Robert Shannon's widow, for nominal consideration plus Bauman's agreement to pay off the tax liability resulting from unpaid real estate taxes on the Locus, conveyed the Locus to defendant Amy Bauman.

25. In June, 2014, the plaintiffs and the defendant entered into a lease agreement that permitted the plaintiffs to park on the concrete pad.

26. On September 9, 2015, the plaintiffs filed this action.


The plaintiffs filed a complaint on September 9, 2015, and filed an amended complaint on August 30, 2016. Counts One and Two respectively seek a declaratory judgment that the plaintiffs have acquired the concrete pad, identified on the plan as "Lot B1," by adverse possession, and that the plaintiffs have alternatively acquired a prescriptive easement over this portion of the Locus. Counts Three and Four respectively seek a declaratory judgment that the plaintiffs have acquired the pathway and planting bed, identified on the plan as "Lot B2," by adverse possession, and that the plaintiffs have alternatively acquired a prescriptive easement over this portion of the Locus. Count Five [Note 8] seeks to quiet title to the property.

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." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Id. "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 , 210 (1853).

"An adverse possession claim requires that possession be 'actual' in nature, meaning that the possessor must be actually utilizing the land that he or she is claiming." Chew v. Kwiatkowski, 19 LCR 88 , 91 (Mass. Land Ct. 2011) (Trombly, J.). To prove actual use, the plaintiff "must establish changes upon the land that constitute 'such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847. As the sufficiency of these acts will vary depending on the particular features of the land in question, the court must consider the conjunction of "the nature of the occupancy in relation to the character of the land." See id., quoting Kendall v. Selvaggio, 413 Mass. 619 , 623-624 (1992). "Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city." LaChance v. First Nat'l Bank & Trust Co., supra, 301 Mass. at 490. Erecting permanent improvements or undertaking major landscaping alterations are often the type of significant changes that indicate actual use and possession. See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). In contrast, "[a]cts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Kendall v. Selvaggio, supra, 413 Mass. at 624, quoting 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, 61 Mass. App. Ct. at 847.

An open use is one undertaken without attempted concealment; to be notorious, "it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Therefore, "[t]he 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." Sea Pines Condo. III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 848. Acts under a claim of right are those undertaken "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, 439 Mass. at 421. [Note 9] "The purpose of the requirement of 'open and notorious' use is 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.'" Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). "[I]t is immaterial whether the true owner actually learns of that use or not." Id. "The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Tinker v. Bessel, 213 Mass. 74 , 76 (1912).

The plaintiffs must also demonstrate their use of the property was adverse. This requires showing of a "lack of consent from the true owner." Totman v. Malloy, 431 Mass. 143 , 145 (2000). "[P]ermissive use is inconsistent with adverse use." Ryan v. Stavros, supra, 348 Mass.at 263. "The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Truc v. Field, 269 Mass. 524 , 528-529 (1930). "Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). On the other hand, "[i]mplied acquiescence is not necessarily the same as permission... On the contrary adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (internal citations omitted).

Finally, the plaintiffs' use of the area must be exclusive. For a showing of exclusivity, "the use must encompass a 'disseisin' of the record owner." Peck v. Bigelow, supra, 34 Mass. App. Ct. at 557. "That is to say a use or possession which is not adverse to the owner, or which is concurrent with that of others, or which does not exclude a similar use or possession by others, will not confer a title in fee, however long continued." Eastern R. Co. v. Allen, 135 Mass. 13 , 16 (1883). "Acts of enclosure or cultivation are evidence of exclusive possession." Labounty v. Vickers, 352 Mass. 337 , 349 (1967). "The most obvious example of an exclusive use is the enclosure of a parcel by a fence." Id., citing Kendall v. Selvaggio, supra, 413 Mass. at 621-622.

To prevail in a claim of adverse possession, the plaintiff must prove that each of these elements continued uninterrupted for a period of twenty years. See Kendall v. Selvaggio, supra, 413 Mass. at 621; G. L. c. 260, §§ 21-22.

1. The Pathway and Planting Bed Area

On the pathway and planting strip that lies to the east of the plaintiffs' home and to the west of the concrete pad, Mark Lutz has planted vegetation, and cleared debris that falls from the steep slope on the northeastern portion of the Locus. [Note 10] When the Lutzes first moved into their home in 1982, he constructed the split rail fence in the front of this area, and replaced this fence at least once. [Note 11] At an undetermined time, he constructed a stone wall at the front of the area near the street, and a low retaining wall along its side. [Note 12] He constructed another retaining wall at the rear of the area in approximately 1982 or 1983. [Note 13] He undertook this work mostly in the summertime. Olga Lutz indicated that they started using this area "probably right away." Mark Lutz similarly testified that they began using it "as soon as we moved in." The plaintiffs' granddaughters would frequently "run up and down" the area to reach the backyard; [Note 14] Joan Colbert, the plaintiffs' neighbor, testified that the plaintiffs' daughters also have used this pathway, but did not elaborate as to the nature of their daughters' use.

The plaintiffs' improvements and maintenance of the pathway and planting bed area are sufficient to constitute actual use for the purposes of adverse possession. The rock wall, retaining walls, and fence are significant permanent improvements to the property, and these additions are "similar to those which are usually and ordinarily associated with ownership." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847. Such improvements have been accordingly recognized as providing an adequate basis for a claim of adverse possession. See, e.g., Eastern R. Co. v. Allen, 135 Mass. 13 , 16 (1883) ("If one fences in a tract of land, and asserts and maintains a right to the exclusive occupancy thereof, and keeps all others from entering thereon, it is of no consequence to his title whether he uses it for cultivation, for depasturing cattle or sheep, or merely for a huntingground."); LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 491 (1938) (noting erection of stone wall); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). The fence at the front of the property was constructed in approximately 1983, [Note 15] as was the rear retaining wall, indicating that this use began approximately thirty-one years prior to the lease agreement between the parties; though the fence was once replaced, there is nothing to indicate that these improvements were ever absent from the strip during this period. Moreover, the planting of and maintenance of vegetation along the pathway in the summertime, as well as the continued clearing of snow and leaves from the area, both serve as strong supplementary evidence of actual use. Although cultivation alone is often insufficient to carry a claim of adverse possession, "[i]n a case such as this, involving a narrow strip along a lot boundary, the planting of trees or shrubs and regular performance of general landscape maintenance is sufficient to create, a prima facie, case of adverse possession, particularly where the area is enclosed." See, McNeil v. Miller, 69 Mass. App. Ct. 1114 (2007) (Rule 1:28 Decision). These particular uses may be seasonal, but they may still serve as evidence of actual use for the purposes of adverse possession. See Higginbottom v. City of Boston, 23 LCR 98 , 101 (Mass. Land Ct. 2015) (Foster, J.). The combination of these uses with the plaintiffs' significant permanent improvements serve as clear proof of actual use, satisfying the plaintiffs' burden on this first element.

Turning to the second, related element, the plaintiffs' use of the pathway and planting bed area was sufficiently open and notorious. The erection of a fence around an area is an act of notoriety that gives "constructive notice to all the world" of an adverse claim. Poignard v. Smith, 23 Mass. 172 , 172 (1828). See Brandao v. Docanto, 80 Mass. App. Ct. 151 , 158 (2011) (noting that fence was "open and obvious to all…"); MacNevin v. Carroll, 24 LCR 92 , 93 (Mass. Land Ct. 2016) (Speicher, J.); Marciano v. Peralta, 15 LCR 267 , 270 (Mass. Land Ct. 2007) (Trombly, J.) ("The installation and maintenance of a wall, fence, or hedge taken in conjunction with the general maintenance of a disputed parcel may be an action which is sufficiently open and notorious to establish those respective elements of adverse possession."). [Note 16] Here, the plaintiffs constructed a fence and stone walls that together surrounded the pathway and planting bed area. This construction is plainly visible to the casual observer, and has existed continuously since shortly after the plaintiffs' acquisition of the neighboring home. These additions clearly communicate the plaintiffs' occupation of that particular area as an intended extension of their home at 22 Cedar Avenue. Such open, obvious, and continued activity would have undoubtedly placed a record owner exercising even a modicum of diligence on notice of an adverse claim of right.

The same overt enclosure likewise serves to establish exclusivity. "The presence of a fence, if properly proved, also helps establish the additional requirement for adverse possession that the possession be exclusive – that the party claiming title by adverse possession has made use of the disputed land without sharing that use with anyone else, including the record title owner." Wilkins v. Pesek, 16 LCR 15 , 16 (Mass. Land Ct. 2008) (Piper, J.). See LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 491 (1938) ("The filling of the land and the erection of the wall were permanent improvements indicative of an intention upon the part of the occupants to use and appropriate the land to their own benefit and to the exclusion of all others."); Fleury v. Moir, 15 LCR 506 , 509 (Mass. Land Ct. 2007) (Piper, J.); Siebecker v. Orefice, 22 LCR 178 , 181 n.10 (Mass. Land Ct. 2014) (Sands, J.). The fence and subsequently erected low stone wall serve to enclose the cleared pathway and planting bed area as if it were a contiguous extension of the plaintiffs' property. The fence and wall physically separate the pathway and planting bed from the remainder of the disputed area, and in doing so, they communicate an intention to exclude all others, including both the record owner and third parties. Indeed, the record indicates that the only individuals to traverse this strip other than the plaintiffs were the plaintiffs' daughters, presumably at the invitation of the plaintiffs. While the plaintiffs' testimony that no one else used this pathway area would likely alone be insufficient for a showing of exclusivity, when supported by the continuous physical enclosure of the area with edifices plainly intended to exclude, it satisfies their burden of proving that the use of this area was exclusive.

Finally, as to adversity, uninterrupted use for a continuous period of twenty years creates a presumption in favor of the plaintiffs of adversity, unless the use is otherwise controlled or explained. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008). As noted above, the Lutzes have actually and openly used the pathway and planting bed area since they arrived in 1982; the court may thus initially presume that their use was, in fact, adverse. The defendant attempts to explain the plaintiffs' use, and thereby rebut this presumption, by suggesting that Robert Shannon, the defendant's predecessor in title, provided them with express permission to utilize the entire disputed area. The defendant relies on a conversation between herself and Shannon that took place in June, 1997 concerning use of the adjacent concrete pad for parking. The defendant testified that, when speaking over the telephone with Shannon concerning her potential purchase of the Locus, "[Shannon] said that he was aware that someone was parking there and he allowed it, gave them permission to do that." [Note 17] The defendant points to this statement as proof of permission to occupy both the pathway and planting bed area and the concrete pad, but it is pertinent only to the latter. The statement concerns only the act of parking, which was limited to the concrete pad and entirely distinct from the use of the adjacent pathway and planting bed. Even if taken as sufficient to indicate that Shannon permitted the plaintiffs' parking on the concrete pad (which, as discussed further below, it is not), it does nothing to signify that the plaintiffs' use and improvement of the adjacent pathway and planting bed area was likewise permissive. There is no other evidence of permission relevant to the pathway and planting bed area, while the Locus was owned by the city of Somerville from 1982 to 1984, while it was owned by Shannon and his heirs from 1984 until the defendant purchased the Locus in 2014, or by the city during the period when the property was again in tax title. Thus it may be presumed that that the Lutzes' use of the pathway and planting bed area was indeed adverse during the entirety of this period, and I find that there was no convincing evidence to rebut this presumption.

The plaintiffs have therefore met their burden of adducing clear proof of actual, open, notorious, exclusive, and adverse use of the pathway and planting bed area, shown as "Lot B2" on Exhibit 2, including the area occupied by the bounding stone walls themselves. As this use by the Lutzes began in 1982, and experienced no interruption in its necessary characteristics until the filing of this case, their use spans the requisite statutory period. I therefore find and rule that the plaintiffs have established ownership by adverse possession of the pathway and planting bed area described as "Lot B2" on Exhibit 2, entitled "Plan of Land in Somerville, Massachusetts," and attached as Appendix A to this decision.

2. The Concrete Pad

Turning next to the Lutzes' use of the adjacent concrete pad shown on the plan as "Lot B1" for parking, the plaintiffs have shown actual use of the concrete pad to park their car. However, I do not credit the plaintiffs' contention that they undertook significant efforts in 1982 to clear the remains of a garage from the concrete pad. While it appears that there was a collapsed or demolished garage on the concrete pad at some point, the testimony of the plaintiffs suggests that at the time of their purchase of 22 Cedar Avenue, the debris on the lot consisted not of the structural remains of the garage but a trivial assortment of trash. [Note 18] The clearing of such rubbish is not indicative of a claim of ownership, but rather is the sort of unremarkable neighborly accommodation, particularly when undertaken only once, that does not rise to the level of actual use or possession. Nonetheless, the plaintiffs' other continuing activities on the pad are sufficient to meet their burden. Regularly parking a car, particularly when accompanied by other improvements, has repeatedly been recognized by the courts of the Commonwealth as such an act of dominion and control. See Lebel v. Nelson, 29 Mass. App. Ct. 300 , 301 (1990); Bagley v. Moxley, 407 Mass. 633 , 635 (1990); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979). The plaintiffs both testified that they have parked a vehicle on the pad every day since they moved into their adjacent home. Their neighbor, Joan Colbert, confirmed that she has seen the plaintiffs park there "frequently, if not daily." [Note 19] The concrete pad was very clearly designed to accommodate the parking of vehicles, and habitual use of it for this purpose qualifies as an act ordinarily associated with ownership of this particular area. In addition, Mark Lutz attached a wooden stockade fence to the existing concrete retaining wall that lines the walls of the hill surrounding the pad on two sides, and replaced this fence two or three times. Although this fence does not serve any exclusionary purpose, as discussed further below, it nonetheless constitutes a permanent cosmetic improvement of the type traditionally consistent with an exercise of ownership. Mark Lutz also regularly raked leaves and cleared snow from the area. [Note 20] Viewing this maintenance, improvement, and habitual parking in light of the character of the land, it is clear that the plaintiffs' actions resemble those "customarily associated with an owner's ordinary use of side and rear yards in a densely settled urban setting." Brandao v. Docanto, supra, 80 Mass. App. Ct. at 157. These actions thus evince an exercise of control and dominion sufficient for a showing of actual use.

The plaintiffs' use of the concrete pad for parking was also sufficiently open and notorious. "[A] property owner's actual knowledge of a claimant's adverse use of the property satisfies this element." White v. Hartigan, 464 Mass. 400 , 417 (2013). Bauman testified that, in June, 1997, Shannon told her "he was aware that someone was parking there and he allowed it, gave them permission to do that." [Note 21] Though this statement is indeed hearsay as the plaintiffs suggest, it falls into the exception carved out for statements made by the deceased. G. L. c. 233, § 65 allows the admission of a declaration of a deceased person that might otherwise be hearsay due to the absence of the deceased declarant "if the court finds that it was made in good faith and upon the personal knowledge of the declarant." G. L. c. 233, § 65. I find Shannon's statement as to his knowledge of the plaintiffs' actions to have been made in good faith and upon personal knowledge; there is no cognizable reason why Shannon would attempt to deceive the defendant about his awareness of the plaintiffs' use of his land, and it can be readily presumed that Shannon, being the owner of the land, did indeed have personal knowledge of this use. The plaintiffs argue that G. L. c. 233, § 65 does not allow the admission of Shannon's statement, because the defendant did not have personal knowledge of Shannon's interaction with the plaintiffs. However, the plaintiffs err in looking to the personal knowledge of the defendant, rather than Shannon; the declarant for the purposes of the rule is the deceased individual who made the declaration, not the individual now relaying that statement through testimony to the court. Furthermore, admitting this statement does not, as the plaintiffs suggest, run afoul of the policy for barring hearsay, as the additional necessary finding of good faith made by the court serves "to safeguard against the natural weakness of hearsay testimony, as also to make futile the temptation to attempt to introduce manufactured testimony and testimony which would not be competent were the declarant living at the trial." Hasey v. Boston, 228 Mass. 516 , 518 (1917). Accordingly, based on Shannon's statement, I find that he had actual knowledge of the plaintiffs' use from at least June, 1997 until his death in 2000. This alone is not sufficient to satisfy the requirement that such use be open and notorious for twenty years; nonetheless, the plaintiffs' use both prior and subsequent to this time, whether or not conveying actual knowledge to the record owner, was outwardly apparent to such a degree as to place the record owner on constructive notice. The plaintiffs testified that they have been parking daily on the concrete pad since the early 1980's. Their neighbor confirmed that they park there every day. The daily appearance of a vehicle, continuing for decades, undoubtedly would have been evident to any owner diligently overseeing his or her property. See Ferrante v. Peterson, 3 LCR 70 , 71 (Mass. Land Ct. Mar. 9, 1995) (Kilborn, J.), aff'd, 40 Mass. App. Ct. 1114 (1996); Lion v. Woodland Golf Club of Auburndale, 15 LCR 353 , 356 (Mass. Land Ct. July 9, 2007) (Piper, J.). Contrast Courtemarche v. Mavilia, 12 LCR 228 , 230 (Mass. Land Ct. 2004) (Scheier, J.); Kurker v. Seidner, 15 LCR 382 , 385 (Mass. Land Ct. 2007) (Trombly, J.). Furthermore, while the plaintiffs may have made no affirmative attempt to inform Shannon of their use, there is no indication that they actively sought to hide their use of the concrete pad; given the extent of their parking upon the area, their use was thus without concealment.

The plaintiffs must next demonstrate that their use of the concrete pad was adverse. As noted above, uninterrupted use for a continuous period of twenty years creates a presumption in favor of the plaintiffs of adversity, unless the use is otherwise controlled or explained. See Houghton v. Johnson, supra, 71 Mass. App. Ct. at 835. The plaintiffs have met their burden of showing continuous, actual, and open use for a sufficient period, and thus receive the benefit of this presumption.

The defendant argues that the plaintiffs' parking use was permissive, as she testified that Shannon told her "he allowed it, gave them permission to do that." [Note 22] Though, as noted above, I find Shannon's statement to be admissible, the statement nonetheless does not sufficiently demonstrate that he expressly or even implicitly granted permission to the plaintiffs. In the context of the three times the defendant testified to the statement, and in combination with the fact, as I so find, that Shannon never actually communicated with either of the Lutzes, his statement as testified to by Bauman suggests acquiescence but not permission. I find Bauman's testimony as to what Shannon actually said to her to be equivocal and vague, especially when viewed in conjunction with the plaintiffs' testimony, which I credit, that they did not, in fact, ever meet with or speak to Shannon. Taking Shannon's equivocal statement in light of the plaintiffs' testimony, I find that Shannon at most tacitly acquiesced to the plaintiffs' use of the concrete pad, and did not ever expressly or even implicitly provide them with permission for its use. [Note 23] "[A]cquiescence, or tacit agreement, by an owner, to the adverse use of his property is not the same as granting permission and will not, by itself, defeat a claim of prescriptive rights." Rotman v. White, 74 Mass. App. Ct. 586 , 590 (2009). The presumption of adversity as to the concrete pad thus has not been successfully rebutted, and stands. "Permission by the owner – even implied permission – negates the claimant's 'adversity', but the owner's acquiescence to a claimant's clearly adverse acts does not." Houghton v. Johnson, supra, 71 Mass. App. Ct. at 836 (emphasis in original). See also Halfenger v. Cofield, 91 Mass. App. Ct. 1116 (2017) (Rule 1:28 Decision) (holding that statement that family "allowed utility lines to cross their property because it was the neighborly thing to do" was insufficient to establish dispute of fact whether adverse use was negated by permission of owner).

The final element that plaintiffs must satisfy is exclusivity, and it is on this element alone that the plaintiffs have failed to carry their burden. While the plaintiffs testified that no one else ever used the concrete pad for parking or otherwise, I find their testimony to be credible only to the extent it indicates that the plaintiffs did not themselves observe any one else utilizing the concrete pad. [Note 24] This, taken by itself, is not sufficient to demonstrate exclusivity, as they must provide evidence that they took sufficient action to exclude the record owner and others from use of the disputed area. The burden of supplying clear proof as to each element of adverse possession falls upon the plaintiffs, and their own testimony as to their necessarily limited personal knowledge of use does not by itself carry this burden as to exclusivity; they must therefore present at least some other evidence of exclusive use, and this they have not done. The plaintiffs offered no evidence that they undertook any actions that might be interpreted as working a disseisin against the record owner. See Peck v. Bigelow, supra, 34 Mass. App. Ct. at 557.

Specifically, they made no efforts to exclude either the record owner or third parties from the concrete pad. They did not enclose the area; they placed no signs warning against trespassing upon their claim; they did not install a gate or fence to keep others from parking on the concrete pad as well; they appear to have parked indiscriminately on either side or in the middle of the concrete pad, presumably sometimes leaving room sufficient for another car to park there; they did not communicate to the city of Somerville during its period of ownership, or to Shannon during his, an intent to exclude him or others from the property; and they made no other affirmative act asserting an intention to keep others from using the property. Though the concrete pad is bounded by retaining walls on its northern and eastern sides, these walls evinced no exclusionary intent and had no exclusionary effect, as they simply serve to carve out the area from the steep hill, do not rise further above the grade of the hill, and were not constructed by the plaintiffs. Nor did the stockade fencing that the plaintiffs did in fact affix to these retaining walls serve to exclude others, as the added fencing was attached directly to the retaining wall, and served only to cosmetically mask the walls. Indeed, the purpose of the stockade fence as articulated by Olga Lutz was not to keep others out, but rather "[j]ust to cover up the eyesore behind it." [Note 25] "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." Sea Pines Condo. III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847, quoting Cook v. Babcock, supra, 65 Mass. at 210. The plaintiffs' own testimony that they did not observe any other use does not alone constitute proof of exclusivity meeting this stringent standard when they have failed to undertake any additional actions of exclusion that might bolster their claim. This can be contrasted to the evidence adduced as to the pathway and planting bed area: although again the plaintiffs provided testimony indicating the lack of use of that area by others, this testimony was supported by the added evidence of exclusionary fencing and enclosure. With respect to the concrete pad, the plaintiffs have thus failed to carry their burden in proving exclusive use. With the failure of proof on this essential element, the plaintiffs' claim of adverse possession over this area fails.

Prescriptive Easement. As noted above, however, plaintiffs have demonstrated a continuation of all other elements as to the concrete pad for a period greater than twenty years. This is sufficient for proof of acquisition of an easement by prescription. "A prescriptive easement is established by showing the continuous, open, notorious, and adverse use of another's land, conducted under a claim of right, for a period of twenty years." McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 499 (2007). "A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement." Boothroyd v. Bogartz, supra, 68 Mass. App. Ct. at 44 n.9.

As a prescriptive easement grants to the plaintiffs particular use rights over the disputed area, rather than the unlimited fee, it is necessary to establish the particular use rights that the plaintiffs have acquired. "The extent of an easement arising by prescription, unlike an easement by grant . . . is fixed by the use through which it was created." Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962). "[T]he use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest." Lawless v. Trumbull, supra, 343 Mass. at 562-563, quoting Restatement (First) of Property § 477 comment b (1936). "[T]he variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use." Id. "[I]n order to establish a prescriptive easement, the claimant must prove that the adverse use was confined to a definite location." Picknik v. Card, 8 LCR 256 , 260 (Mass. Land Ct. 2000) (Lombardi, J,), quoting J.W. Bruce & J.W. Ely, Jr., Law of Easements and Licenses § 5.03[4] (rev. ed. 1995 & Supp. 1999).

Here, the plaintiffs used the concrete pad for parking a single car at a time. They testified that they did not confine their parking to any one particular location on the concrete pad. They have consequentially laid claim to a prescriptive easement permitting them to use the entire pad for parking. I credit that the plaintiffs did not confine their use to one particular side of the concrete pad or the other, but this use only determines the "general outlines" of the resulting easement, rather than its precise details. See Lawless v. Trumbull, supra, 343 Mass. at 562-563. Furthermore, even to the extent that the limits of the easement already had been established, the court has leeway in determining or changing the boundaries of an easement so long as the changes do not "significantly lessen the utility of the easement, increase the burden on the use and enjoyment by the owner of the easement, or frustrate the purpose for which the easement was created." M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 91-92 (2004). The principles adopted by the Supreme Judicial Court in M.P.M. Builders are applicable to prescriptive easements as well as to easements established by grant. See Halfenger v. Cofield, supra, 91 Mass. App. Ct. 1116 .

Accordingly, I find that the plaintiffs' prescriptive rights do not extend to unlimited use of the entire concrete pad, and I also find and rule that the limitation of the prescriptive easement to one side of the concrete pad, so as to permit the owner of the servient estate to also utilize the concrete pad for the parking of one vehicle, will not significantly lessen the utility of the easement to the Lutzes, increase the burden on their use and enjoyment of the easement, or frustrate the purpose of the easement for the parking of one vehicle. As the plaintiffs only ever parked a single vehicle in this area, the overall extent of the easement should be limited to the space necessary for a single vehicle to park. The concrete pad is eighteen feet wide and twenty-two feet deep, and is wide enough to accommodate two automobiles. [Note 26] Were the plaintiffs permitted to park at any location on the pad as they have requested, they would be able to "double park" in the exact center of the concrete pad, and thereby effectively occupy the space of two automobiles, expanding the scope of their use beyond that which existed during the prescriptive period, and entirely wasting space that might otherwise allow the defendant, who remains the owner of the servient estate, to park her own vehicle. I therefore find and rule that the plaintiffs have acquired a prescriptive easement limited to the use of parking a single vehicle, such space to be limited to the western (left) half of the concrete pad, and in such a way as to not unduly interfere with the right of the record owner, Bauman, to park a second vehicle on the eastern (right) side of the concrete pad.


For the foregoing reasons, I find and rule that the plaintiffs have established ownership by adverse possession of the land of defendant shown as Lot B2 on the plan attached hereto as Appendix A, and a prescriptive easement to park a single vehicle on the western (left) side of the land of defendant, shown as Lot B1 on the same plan, so as not to interfere with the right of the defendant to utilize the eastern (right) half of said Lot B1 for parking of a single vehicle.

Judgment to enter accordingly.

exhibit 1

Appendix A


[Note 1] A plan showing the entirety of the Locus was marked as Exhibit 2, and a copy of Exhibit 2 is attached as "Appendix A" to this decision. The disputed concrete pad parking area is labeled as "Lot B1" on the plan; the pathway and planting bed are labeled as "Lot B2," and the remainder of the Locus, for which there is no claim of adverse possession, is shown as "Lot A."

[Note 2] Although the plan titles this and the other sections of the Locus as "lots," they are not actually independent lots, but merely sections of the Locus.

[Note 3] Tr. at 61, 69-70.

[Note 4] Tr. at 59, 62.

[Note 5] Tr. at 15.

[Note 6] Tr. at 14, 21, 74-75.

[Note 7] Tr. at 11, 14, 21, 41, 59.

[Note 8] Duplicatively labeled "Count III" in the complaint, but appearing as the fifth count.

[Note 9] As the need is for an apparent claim of right, there is no requirement that the claimant actually communicate to the record owner a claim of right or intent to oust, or even subjectively possess such an intent; the court must look not to the state of mind of the claimant, but rather must look to the existence of objective acts, such as physical entry and possession, that are inconsistent with the true owner's rights. See AM Props., LLC v. J&W Summit Ave, LLC, 91 Mass. App. Ct. 150 , 156 (2017).

[Note 10] Tr. at 59.

[Note 11] Tr. at 21, 59, 62.

[Note 12] Tr. at 59, 61.

[Note 13] Tr. at 64.

[Note 14] Tr. at 22.

[Note 15] Olga Lutz testified that the photographs in Exhibit 9, which depict the wooden fence and the small stone wall, depicted "stuff [Olga and Mark] did" that was not present when they purchased the property in 1982; she likewise testified that these pictures were taken within a year of moving into their home. See Tr. at 40, 56.

[Note 16] In Marciano, the court failed to find actual use, as it found that the fence in question was not erected by the claimant, but was in existence when he began his limited acts of possession; this is in contrast to the facts of the case at bar.

[Note 17] Tr. at 98.

[Note 18] Tr. at 11: "debris, and just leaves, and trash, and everything."; Tr. at 35: "Like, you know, broken pieces of maybe wood a little bit, leaves, cans bottles, everything."

[Note 19] Tr. at 87.

[Note 20] Tr. at 14, 49.

[Note 21] Tr. at 98

[Note 22] Tr. at 98. Bauman actually testified three times as to this statement. The first two times, she testified only that Shannon told her "he was aware that someone was parking there." Tr. at 95, 96. On further questioning by her attorney, Bauman elaborated, "He said that he was aware that someone was parking there and he allowed it, gave them permission to do that." Tr. at 98.

[Note 23] The plaintiffs attempted to bar the admission of Shannon's statement by contending that this statement presents a second layer of hearsay: they argued that the content of Shannon's statement, which is itself hearsay, consisted of a description of another hearsay statement made to the plaintiffs. However, I do not encounter this problem because my conclusion concerning the content of Shannon's statement is that Shannon was not, in fact, relaying a past hearsay statement made to the plaintiffs, but was instead describing his own silent acquiescence; there is thus no second layer of objectionable hearsay at all.

[Note 24] Shannon's own testimony would almost certainly serve as the only potential source of evidence as to the extent of other use, if any; as Shannon is deceased, I do not take the lack of direct evidence as to Shannon's use as a particularly powerful indicator that no such use occurred.

[Note 25] Tr. at 61. See also Tr. at 11: "…like if you took that fence off, everything was just falling down and looks like an eyesore. So we covered it up with that. That's about it."

[Note 26] For reference, the city of Somerville requires parking spaces to be a width of nine feet, and a depth of eighteen feet. See Exh. 13.