ABDELMAGID MAZEN v. RICHARD JOSSELYN and PATRICIA JOSSELYN, as they are Trustees of the Josselyn Nominee Family Trust.

This ably tried case involves a dispute between neighbors who, at one time, were personally close. They looked out for one another. Their children roamed their properties, playing games of make believe. And along their common border, a beautiful garden grew.

Literally and figuratively, the garden is gone. The Court is left with deciding whether plaintiff Abdelmagid Mazen acquired by adverse possession the site of the garden, record title to which is held by defendant trustees Richard and Patricia Josselyn. The trustees ask the Court to declare that their trust still owns the garden site and a strip of Mr. Mazen's driveway that borders that site.

The parties tried the case to this Court on November 1 and 2, 2017. The Court heard closing arguments on December 22, 2017. Based on the parties' admissions, the testimony at trial, and the exhibits received into evidence, the Court finds these facts:

1. Mr. and Ms. Josselyn are the trustees of the Josselyn Family Nominee Trust. The Trust owns at 21 Harding Street in Andover, Massachusetts. The Josselyns are the beneficiaries of the Trust, and they reside at 21 Harding. They bought 21 Harding, as husband and wife, in 1973. They transferred 21 Harding to the Trust in 2015, but this Decision often will refer to 21 Harding as the Josselyns' property.

2. Mr. Mazen and his then-spouse, Michelle Mazen, purchased the property next door to 21 Harding, at 19 Harding Street, in 1988. (When this Decision refers to "Ms. Mazen," it is referring to Michelle. Mr. and Ms. Mazen have a daughter, Yasmeen; this Decision will refer to her by her first name.)

3. 21 Harding, 19 Harding and Harding Street as it passes 19 and 21 Harding are on a slope. 21 Harding is uphill from 19 Harding. The right of way for Harding Street forms the northern boundary of both 19 and 21 Harding. (This Decision often will use the term "Harding Street right of way." That right of way is wider than the current paved street.) 19 Harding abuts 21 Harding to the west. A railroad right of way forms the western boundary of 19 Harding.

4. This dispute centers on a 36.4-foot, roughly triangular area along the deeded boundary between 19 and 21 Harding, which the parties and this Decision will call the "Disputed Area." The Disputed Area is two feet wide at its narrowest point, growing to six feet when it reaches the Harding Street right of way.

5. 19 Harding has single driveway entering Harding Street. The driveway currently crosses a portion of the Disputed Area. The driveway's alleged encroachment is roughly triangular, approximately two feet wide at its base along the Harding Street right of way, and narrowing to a point that is approximately 36.4 feet from the Harding Street right of way.

6. When the Mazens purchased 19 Harding in 1988, the residence at 21 Harding had exposed, somewhat flat, front and side lawns on its north and west sides. Both lawns eventually sloped towards Harding Street (on the north) and 19 Harding (on the west).

7. In 1988, the Disputed Area lay mostly on the sloping west side of 21 Harding. The slope was weedy and not well mowed, but it also was not enclosed.

8. The Mazens understood from Phyllis B. Grant, the prior owner of 19 Harding, that the boundary between 19 and 21 Harding ran roughly north/south on a contour halfway up the vegetated slope between the two properties, parallel to 19 Harding's driveway. Ms. Josselyn said something similar to Mr. Mazen a few days after the Mazens had moved to 19 Harding. But a plan identified in both the Mazens' deed and the Josselyns' deed placed the true boundary outside of the Disputed Area, along the Mazen driveway as it existed in 1988.

9. In 1989, the Josselyns erected a lattice fence around 21 Harding's flat front and side lawns, before their northern and western sides began sloping toward Harding Street and 19 Harding. The fence paralleled Harding Street and 19 Harding's driveway. The Josselyns left the areas outside of the fence, those facing Harding Street and 19 Harding, grassy and unenclosed.

10. The Josselyns' new fence blocked direct access to the Disputed Area from the front and side lawns of 21 Harding. The Josselyns nevertheless were still able to reach the Disputed Area by walking around their fence, along either the vegetated slope that ran parallel to Harding Street or a public sidewalk at base of that slope.

11. Mr. Josselyn occasionally mowed and raked the Disputed Area, as well as the grassy slope alongside Harding Street, in the years before erecting the fence. He also mowed the Disputed Area for several years after erecting the fence. Because the areas outside of the fence were sloped, mowing was a struggle, and as a result, Mr. Josselyn did not mow the slopes frequently. While the Court believes the testimony of several witnesses who said they never saw Mr. Josselyn mow the slope within the Disputed Area, the Court nevertheless believes Mr. Josselyn's testimony that he did so, albeit infrequently, between 1989 and 1997. The Court also finds that Ms. Mazen took greater interest in the appearance of the Disputed Area than Mr. Josselyn did, and that after the Josselyns installed their lattice fence, Ms. Mazen often mowed the Disputed Area herself. She raked leaves and removed fallen branches from that area. She also occasionally mowed portions of the slope on 21 Harding that ran parallel to Harding Street. Ms. Mazen didn't ask permission to perform any of the work described in this paragraph.

12. In winters following construction of the lattice fence, members of the Mazen household often would place in the Disputed Area snow shoveled from 19 Harding's driveway. The Mazens didn't ask permission to pile snow in the Disputed Area.

13. When the Mazens moved to 19 Harding, they had one child, a son named Nadeem. Nadeem was five years old in 1988. He played with the Josselyn children. As a child, Nadeem and his friends would play in the Disputed Area. On snowy days, they tried to launch sleds from its slopes. Nadeem and his friends did not ask the Josselyns for permission to play in the Disputed Area.

14. Before the current dispute arose, the Mazen and Josselyn families were close – so close that, in 1989, the Mazens persuaded the Josselyns to join them on a trip to Mr. Mazen's homeland, Egypt. The families willingly split the expenses of removing an old tree at the southern end of the boundary between their properties, and the Josselyns removed several overhanging branches on another tree when the Mazens asked. Mr. Josselyn once helped the Mazens repair 19 Harding's boiler. On another occasion, the Josselyns agreed to cover a retaining wall on 21 Harding, built beneath the lattice fence described in ¶ 9, with additional lattice so as to improve its appearance from 19 Harding.

15. At some point in the early 1990s, Ms. Mazen (whom all witnesses agreed thoroughly enjoyed and had an eye for landscaping) began cultivating small plants along the slope between 19 and 21 Harding. These plants are not visible in photographs of the Disputed Area taken in 1992 as the area approaches Harding Street, but I credit the testimony of several witnesses that Ms. Mazen landscaped throughout her yard, little by little, starting in the early 1990s. Her work extended into the Disputed Area.

16. In late 1993, when Nadeem was ten, the Massachusetts Highway Department announced that it would be rebuilding a bridge that carried Harding Street over the railroad right of way west of 19 Harding. That work required the taking of temporary easements on 19 and 21 Harding, along Harding Street. The temporary taking at 21 Harding (the "21 Harding Taking") covered a 55-square-foot rectangle, at the northwest corner of 21 Harding. The 21 Harding Taking lay within the Disputed Area but outside of the Josselyns' lattice fence. MassHighway also took a temporary easement along the entire Harding Street side of 19 Harding, including a 240-square-foot rectangle where 19 Harding's driveway entered the Harding Street right of way.

17. MassHighway's work in the areas it temporarily took along 19 and 21 Harding lasted several months during the summer of 1994. That work prevented the Mazens and the Josselyns from maintaining their properties within MassHighway's temporary easements.

18. MassHighway not only rebuilt the Harding Street bridge, but also adjusted the elevation of Harding Street as it approached the bridge, integrated the sidewalks that ran along Harding Street, and fixed all related curbs and curb cuts. At the completion of that work in 1994, MassHighway repaved a portion of 19 Harding's driveway and aligned its edges with the newly installed curbs on Harding Street. MassHighway's repairs widened 19 Harding's driveway so as to create the encroachments on 21 Harding that are depicted in Trial Exhibits 20 and 21. The encroachments went through the 21 Harding Taking.

19. Mr. Mazen has asked the Court to find, based on Trial Exhibit 15, that 19 Harding's driveway encroached on the 21 Harding Taking (and overlapping areas of the Disputed Area) prior to MassHighway's work, and that MassHighway did not further expand the driveway into the 21 Harding Taking or the Disputed Area. Mr. Mazen did not prove that Trial Exhibit 15 shows the pre-construction location of 19 Harding's driveway. Instead, relying on the pre-1994 photographs of the 19 Harding driveway admitted into evidence, Trial Exhibit 7 (which does depict the pre-construction condition of 19 Harding, and notes for 19 Harding "Reconstruct Exist Drwy"), Mr. Josselyn's testimony, and the Court's view of 19 and 21 Harding (which included an observation of the driveway across the street from 19 Harding), the Court finds that 19 Harding's driveway did not enter the 21 Harding Taking or the Disputed Area prior to 1994.

20. The Mazens welcomed their second child, Yasmeen, to their family in 1995. Harding Street was (and still is) a very busy street. In 1997, the Mazens became concerned about keeping their daughter and other youngsters out of the street. MassHighway's work had resulted in a sizeable concrete wall along most of the Harding Street side of 19 Harding, but the area between that wall and the Josselyns' lattice fence was wide open. The Mazens wanted to enclose that area with a white picket fence, with a matching gate across the 19 Harding driveway. They envisioned the eastern end of the fence, the end that would start at the driveway gate, extending up the slope through the Disputed Area and terminating at a post, outside of the Disputed Area, that was one inch away from the Josselyns' lattice fence.

21. In 1997, the Mazens and the Josselyns were on good terms, and while none of them understood at that time the precise boundary between 19 and 21 Harding, Mr. Mazen and the Josselyns understood that some of the eastern end of the proposed fence would be on what all three acknowledged was the Josselyn property. Mr. Mazen also had no intention in 1997 of building a fence on any part of the Josselyn property without the Josselyns' permission. The Court thus credits Mr. Josselyn's testimony that in 1997, in a conversation that occurred in the area of the proposed Mazen fence, Mr. and Ms. Mazen asked Mr. Josselyn for permission to install the fence, and Mr. Josselyn gave them that permission, orally.

22. The Mazens installed the fence where they had shown Mr. Josselyn. Once the Mazens installed their fence, one could reach the Disputed Area from the Josselyn property only by opening the gate to the 19 Harding driveway, as the Disputed Area was otherwise enclosed by the Mazens' fence on its north side, and the Josselyns' lattice fence on its east side.

23. Installation of the Mazen fence disturbed the slope between 19 and 21 Harding, including parts of the Disputed Area. In 1997, shortly after the Mazens had erected the fence, Ms. Mazen asked Mr. Josselyn if she could plant ground cover of her own choosing on the now-enclosed slope between 19 and 21 Harding. Mr. Josselyn told Ms. Mazen, orally, that she could do so.

24. In the years following her 1997 conversation with Mr. Josselyn, Ms. Mazen remade the Disputed Area. She planted lilacs, ferns, hostas, bleeding hearts, and assorted other plants. These plants matched many others she had planted throughout 19 Harding, and they eventually replaced the grass and weeds that previously occupied the Disputed Area. Ms. Mazen also gathered, placed and arranged small rocks within parts of the Disputed Area. She repeatedly weeded, groomed and raked the Disputed Area, and did so with the same care and attention she paid to other portions of 19 Harding. The Disputed Area's garden took on magical qualities for Yasmeen and her friends, who would play make-believe games there.

25. The more Ms. Mazen developed the garden within the Disputed Area, the less the Josselyns entered it. The Josselyns planted nothing in the Disputed Area between 1997 and 2012. Mr. Josselyn entered the Disputed Area between 1997 and 2011 only to paint or otherwise maintain the lattice fence. When doing so, he was careful not to disturb Ms. Mazen's landscaping in the Disputed Area.

26. The Mazens removed the gate across 19 Harding's driveway in approximately 2009. As of that moment, the Josselyns could once again enter the Disputed Area directly from their property.

27. The Josselyns removed their lattice fence in the fall of 2011. They considered at that time expanding their front and side yards. Owing to 21 Harding's slope, Mr. Josselyn understood that stronger retaining walls might be needed along the north and west sides of 21 Harding, and that those walls might be costly. The Josselyns hired a surveyor, Richard Kaminski, to stake the four corners of 21 Harding, so that the Josselyns wouldn't inadvertently build walls outside of their property.

28. Sometime in the fall of 2011, surveyor Kaminski (or someone working for him) drove a railroad spike at what Kaminski considered to be the northwest corner of 21 Harding. Trial Exhibit 45 is a photograph showing that spike; it was driven approximately two feet into the eastern edge of 19 Harding's current driveway. Trial Exhibit 21 shows that the spike is approximately 0.87 feet north and 0.14 feet west of what the parties agree is the deeded northwest corner of 21 Harding. Kaminski told the Josselyns what he had found; that was when the Josselyns first realized that 19 Harding's driveway was encroaching on 21 Harding.

29. On March 28, 2012, Mr. Josselyn sent the Mazens a letter. The letter states: I had our property at 21 Harding Street surveyed in September of 2011, and discovered that a small part of your paved driveway is actually over the lot line, and on our property.

Although this piece is our property, Pat and I grant you permission for its use but, of course, retain ownership.

We wish to assure you both that we realize this intrusion was unknowing and unintended. We both were told by Phyllis B. Grant . . . that our lot line was in a different location from that which our survey revealed it to be. . . .

30. The Josselyns decided in 2012 to install rock retaining walls and related landscaping on the north and west sides of 21 Harding. That work proposed to ruin Ms. Mazen's landscaping in the Disputed Area. The Josselyns gave the Mazens time to remove their plantings before the Josselyns' work began. Ms. Mazen's garden in the Disputed Area has largely disappeared.

31. The Mazens had Trial Exhibit 20 prepared in October 2012, after the Josselyns completed their landscaping work. Trial Exhibit 20 depicts the Disputed Area.

32. Mr. and Ms. Mazen separated in November 2014 and divorced thereafter. Ms. Mazen conveyed her interest in 19 Harding to Mr. Mazen individually in 2015.

33. Mr. Mazen filed his complaint in this action in October 2016. The Josselyn Trust counterclaimed against Mazen in November 2016.

* * *

Having found the relevant facts, the Court turns to the parties' claims.

From the beginning, Mr. Mazen has pursued essentially only one claim: that he has acquired fee title to the Disputed Area by adverse possession. The Josselyns responded with two counterclaims: first, that since 1994, 19 Harding's driveway has encroached on 21 Harding; and second, that Mazen has been "unjustly enriched" on account of enjoying the alleged encroachment without having to pay for his use. On the eve of trial, the Josselyns dropped the latter claim as well as any claims for damages; this Court will DISMISS those claims. What remains for the Josselyns is a request for a declaration that their Trust is "entitled to have [the encroaching] portion of the [Mazen] driveway removed from [the Trust's] property. . . ." The Josselyns haven't requested, however, any injunction.

Since Mr. Mazen doesn't dispute what's in the Josselyns' deed, and as he agrees that the Disputed Area lies entirely within the property described in that deed, Mazen bears the burden of proving his superior title to the Disputed Area by adverse possession. See Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). He thus must prove "nonpermissive use" of the Disputed Area, use that is "actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Should he fail to prove all four elements ("open" and "notorious" being grouped together), each for a period of at least twenty years, his claim for adverse possession fails. See Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). That is the case here.

Mr. Mazen's claim fails in two respects; each failure, by itself, is fatal to his claim. First, Mazen has not established "exclusive" use of the Disputed Area for twenty years. Exclusive use "must encompass a 'disseisin' of the record owner." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). While "[a]cts of enclosure or cultivation are evidence of exclusive possession," Labounty v. Vickers, 352 Mass. 337 , 349 (1967), here such exclusivity (marked by the Mazens' erection of a fence that barred access to the Disputed Area from the Josselyn property, coupled with Mr. Josselyn no longer maintaining the Disputed Area) began in 1997. The period of exclusivity ended at the very latest in 2012, when the Josselyns entered the Disputed Area as part of their yard renovations and destroyed what was left of the Mazens' landscaping within the Disputed Area.

Citing Kendall v. Selvaggio, 413 Mass. 619 (1992); Shaw v. Solari, 8 Mass. App. Ct. 151 (1979); and MacDonald v. McGillvary, 35 Mass. App. Ct. 902 (1993) (rescript), Mr. Mazen argues that the exclusivity period began in 1989, when the Josselyns erected their lattice fence. There are key facts present in Kendall, Shaw and MacDonald that aren't present here. First, the fences in Kendall, Shaw and MacDonald prevented the record owners of the areas in dispute in those cases from entering the disputed areas directly from each owner's other land. (It's true that in MacDonald, the fence dividing the properties fell down in places "for a year or two. . . ." As the record owners didn't take advantage of the breach to re-enter their property, the MacDonald Court disregarded the fallen fence. See id. at 903-04.) Prior to 1997, the Josselyns' lattice fence never prevented them from entering the Disputed Area from their property: before 1997, it was possible for them to walk on the open strip between the north side of their fence and the Harding Street sidewalk and enter the Disputed Area. The Josselyns' fence thus did not, by itself, give the Mazens' exclusive control of the Disputed Area. See Bazarian v. Khachadoorian, 20 LCR 222 , 225 (2012) (exclusivity not proven where fence didn't run the full length of parties' property line, and record owner could walk around it to reach disputed area).

A second and more important distinction between this case and Kendall, Shaw, and MacDonald is that in the latter cases, the predecessors in title of the parties who claimed adverse possession built the fences that excluded the record owners from their land. Each predecessor literally staked his or her exclusive claim, and by doing so, put the record owners on notice that they had to defend their title. Not so here: the Josselyns' decision to erect a fence on their property – a decision they made with no input from the Mazens whatsoever – gave them no notice that the Mazens were taking over the Disputed Area.

Mr. Mazen thus has not shown exclusive use of the Disputed Area for twenty years. The other flaw in his adverse-possession claim is that the Mazens' use of the Disputed Area after 1997 was not adverse: it was with the Josselyns' permission. A party who claims title through adverse possession bears the burden of showing that the record owner didn't grant the claimant permission to use a disputed area. See Totman v. Malloy, 431 Mass. 143 , 145 (2000). The Josselyns permitted both the erection of Mazens' picket fence in 1997 and the subsequent creation and cultivation of the garden within the Disputed Area, through 2012.

Mr. Mazen correctly notes that the Court's latter finding, concerning permission to cultivate the Disputed Area, rests in part on Mr. Josselyn's testimony concerning what Ms. Mazen asked in 1997. The finding rests only in part on Josselyn's description of Ms. Mazen's request. That's because the Court also has found that, as of 1997, (a) the Mazen and Josselyn families were friendly; (b) the Mazens recognized that part of their proposed picket fence would end up outside of the Disputed Area, on the Josselyn property; and (c) the Mazens respected the Josselyns' property rights. These facts support Mr. Josselyn's testimony that he gave permission, even without his testimony that Ms. Mazen asked for permission. The Court nevertheless admitted Josselyn's testimony concerning Ms. Mazen's request under the "operative words" exception to the hearsay rule. See Fahey v. Rockwell Graphic Sys., Inc., 20 Mass. App. Ct. 642 , 653-54 (1985). The Court ruled that the exception applies here because the Josselyns aren't offering Ms. Mazen's statement ("May I tend the Disputed Area," or words to that effect) for the truth of the matter asserted, but to prove that she said those words and that, in conjunction with Mr. Josselyn's response, they gave rise to legal rights and duties.

Mr. Mazen argues that the Court's admission of his former wife's alleged statement is contrary to the holding of Conti v. Cormack, 16 LCR 183 , 185 (2008) (Sands, J.), aff'd in part and remanded in part, 76 Mass. App. Ct. 1120 , 2010 Mass. App. Unpub. LEXIS 311 (2010) (unpublished decision under App. Ct. R. 1:28). This Court's ruling is consistent with Conti. In Conti, another adverse-possession case, Judge Sands excluded three pieces of evidence as hearsay. The first was an affidavit from the defendant-record owners' predecessor in title, John Bartolini, in which he claimed that he gave permission to the plaintiffs' predecessors in title, the Concannons, to use a disputed area, and that the Concannons were aware of that permission. See Conti, 16 LCR at 184. The second was testimony by one of the record owners, Margaret Cormack, that repeated what Bartolini had told her in an out-of-court conversation; that conversation repeated the contents of Bartolini's affidavit. See id. at 184-85. The content of the third piece of excluded testimony is not clear. Judge Sands describes it as "William Cormack's testimony regarding alleged conversations with the Concannons relative to the permissive use of the Disputed Area." Later Judge Sands describes the statement as one acknowledging "that the Cormacks gave the Concannons permission to encroach on their property." Conti, 16 LCR at 185 (footnote omitted).

In all three instances Judge Sands ruled, and the Appeals Court agreed, that the operative-words exception to the hearsay rule didn't apply. That's because the Cormacks offered the three out-of-court statements for the truth of the matters asserted in those statements, which made them ineligible for the operative-words exception to the hearsay rule. See Conti, 16 LCR at 185; Conti, 2010 Mass. App. Unpub. LEXIS 311 **2-3 & nn. 3, 5. While the third excluded statement in Conti involved the same lineup of parties as the statement offered here (record owner testifying in court about an out-of-court statement with party seeking adverse possession, or that party's predecessor in interest), there's no suggestion in Conti that the court excluded testimony concerning a request from the Concannons to encroach on the Cormack property; instead, the excluded testimony appears to have been merely an acknowledgement of permission previously granted. By contrast, the Josselyns didn't offer Ms. Mazen's statements for their truth, but rather for their legal effect. Her statements thus are admissible under Fahey.

The Court thus holds that Mr. Mazen has not proven that he has acquired title to the Disputed Area by adverse possession. The Court thus must enter judgment against Mazen, and in favor of the Josselyn Trust, on all counts of Mazen's complaint. The Court also will enter judgment in favor of the Trust, and against Mazen, on the Trust's first counterclaim, and declare that Mazen's driveway encroaches on the Trust's property. The Court will enter judgment in favor of Mazen, and against the Trust, on the Trust's second counterclaim, that for unjust enrichment.

Judgment to enter accordingly.