THOMAS HILL and MARIAN HILL v. FRANK FERNINO and MARY FERNINO

Introduction

Plaintiffs Thomas and Marian Hill are the record owners of land in Falmouth, part of which is claimed by defendants Frank and Mary Fernino by adverse possession. The Hills contend that no such adverse possession has occurred. The same claims, by the same parties, are at issue in a previously-filed case, Fernino v. Hill, Barnstable Superior Court Case No. 1572 CV 00492 (filed Sept. 22, 2015), with the same lawyers representing those parties. The Superior Court docket does not indicate any activity in that case since the Hills filed their answer on October 26, 2015, but the parties anticipate that it will soon be set for trial.

The Hills have now brought this case, for one reason only. They are concerned that the Ferninos' filing of the Superior Court case claiming adverse possession, and their denial of that claim in their answer, did not "stop the clock" on the Ferninos' period of accrual, [Note 1] and they believe that only their filing of a G.L. c. 237, §1-11 "writ of entry" complaint in this court can do so. That concern is misplaced. The twenty-year accrual period stopped immediately on the filing of the Superior Court action, which placed the title to that land in issue. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n. 8 (1996); 16 Shawmut Street LLC v. Piedmont Street LLC, Mem. & Order Pursuant to Rule 1:28, 91 Mass. App. Ct. 1132 , 2017 WL 3122418 at *2 & *2 n. 6 (2017) (citing Pugatch). This action is thus dismissed pursuant to Mass. R. Civ. P. 12(b)(9) (prior pending action).

Discussion

"In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land." Pugatch, 41 Mass. App. Ct. at 542 n. 8. An action for adverse possession is such a complaint, and its filing immediately stops the period of accrual. See 16 Shawmut Street, supra, 2017 WL 3122418 at *2 & *2 n. 6. Title to the land in dispute is adjudicated in accordance with its state at the time of filing. See McMullen v. Porch, 286 Mass. 383 , 388 (1934). See also Sandwich v. Quirk, 409 Mass. 380 , 383 (1991); Snow v. E.L. Dauphinais Inc., 13 Mass. App. Ct. 330 , 336 (1982); G.L. c. 187, §3 (notices to prevent easements).

Given this, there is no substantive difference between the Superior Court case and this case, and there would be no difference in outcome. They involve the same property, the same parties, the same facts, the same competing title claims, and the merits of the Ferninos' adverse possession claim would be measured by the same accrual date – the date the Superior Court action, putting those competing title claims at issue, was filed. In the Superior Court case, the Ferninos (as plaintiffs) assert title by adverse possession to the disputed land, and the Hills (the record title holders, as defendants) deny that adverse possession claim. In this case, the Hills (as plaintiffs) seek a declaration that the Ferninos (as defendants) do not have any adverse possession title to the land and, if the case goes forward, the Ferninos will assert that they do. The two cases are thus mirror images of each other. In these circumstances, the first-filed action (the Barnstable Superior Court case) takes precedence, and the later case (this one) must be dismissed. See Mass. R. Civ. P. 12 (b)(9). Accordingly, this action is DISMISSED.

Judgment shall enter accordingly.

SO ORDERED.