APRIL NANNUCCI and PETER NANNUCCI v. JOYCE HYNDS and STEVEN HYNDS.

Introduction

In this action, plaintiffs April and Peter Nannucci, the owners of 61 Chaske Avenue in Newton, claim title by adverse possession to an additional 8'-wide strip of land along the eastern boundary of their property, owned of record by defendants Joyce and Steven Hynds. They also seek money damages from the Hynds for cutting down trees on a portion of that land. The Hynds deny the Nannuccis' adverse possession claim and, as the record owners of the land where the trees were located and who, moreover, had had the record boundary surveyed and staked and then shown it to the Nannuccis before the Nannuccis bought the 61 Chaske Avenue house, contend they had the absolute right to remove the trees. They also contend that the Hynds' claims are time-barred by G.L. c. 260, §28.

The Hynds' record ownership of all of the land in dispute, and the accuracy of the record boundary as surveyed and staked by the Hynds, are undisputed. The Nannuccis' claims are premised solely on their assertion of title by adverse possession.

Plaintiffs relying on a claim of adverse possession must show nonpermissive use which is actual, open, notorious, exclusive and adverse for a continuous period of twenty years. [Note 1] Kershaw v. Zecchini, 342 Mass. 318 , 320-321 (1961). The burden of proving that each of these elements has been met is on the claimants, see Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), and whether they have met that burden is a question of fact for the court to determine in this non-jury action. Kershaw, 342 Mass. at 320. The court is entitled to assess the credibility of the witnesses and the weight of the evidence, and is "not bound to believe or construe the evidence as [the losing party] wished it to be believed or construed." Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990).

Because adverse possession takes land away from its true (record) owner, the acts that establish adverse possession cannot be "few, intermittent [or] equivocal." Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (internal citation and quotation omitted). Rather, they must be "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," Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (emphasis added), "so open and notorious that [they] may be presumed to have been known to the rightful owner," Lawrence, 439 Mass. at 421, and such that they place the owner on notice that a claim of right was being asserted to his land. Id. at 421 n.5, 422. [Note 2] Thus, the claimant must act "in a manner inconsistent with the true owner's rights," and to such a degree that the true owner should realize he must "take steps to vindicate his rights by legal action" or forever lose his land. Id. at 421 (internal citations and quotation omitted); see also Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847-848 (2004) ("To succeed, the claimant 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") (internal citations and quotations omitted).

The claimants' burden of proof is a high one. "The acts of the wrongdoer [the claimant] are to be construed strictly, and the true owner is not to be barred of his right except upon clear proof." Cook v. Babcock, 11 Cush. [65 Mass.] 206, 210 (1853). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Sea Pines Condominium III Ass'n, 61 Mass. App. Ct. at 847 (citing Cook).

The 8' claimed by the Nannuccis is not a unitary area. For purposes of analysis, it divides into three parts.

The first part is the portion that was enclosed by the Nannuccis' back yard fence until Mr. Hynds took that side of the fence down in October 2012 at approximately the same time he cut down the trees. [Note 3] This section of the fence, 40' long from the Nannuccis' rear lot line to where its corner turned and connected to the Nannuccis' side-entrance porch, [Note 4] encroached approximately 5' over the record boundary line and was parallel to it. There was no evidence that either the Nannuccis or their predecessors ever used or maintained anything on the other side of that fence, so they have no claim to anything beyond the fence in the back yard area. Likewise, there was no evidence that, from the time the fence was first installed to the time it was taken down by Mr. Hynds in October 2012, any of the Hynds' predecessors ever challenged the fence or went inside the enclosed area as anything other than invitees of the Nannuccis' predecessor owners.

The second part is a portion of the disputed land that was neither fenced nor enclosed, but can readily be visualized as the area from the record boundary 5' feet over to what would have been a straight-line extension of the line of the back yard fence, parallel to the record boundary, starting at the corner turning point of the fence near the side-entrance porch and continuing the remaining 60' distance to the street (i.e., the area that would have been enclosed if the fence had continued to the street). [Note 5] Although neither fenced, enclosed, nor containing a structure of any kind, the Nannuccis contend that this 5'-wide, 60' long area was "adversely possessed" by their predecessors because they regularly raked and mowed it, the Hynds' predecessors never went there, and the line of the back yard fence, visually extended, gave it a "visible and readily apparent line of demarcation alongside the adjacent uncultivated areas." See Sea Pines Condominium III Ass'n, 61 Mass. App. Ct. at 849.

The third part is the 3'-wide portion on the other side of the line of that fence — the remainder of the 8'-wide area the Nannuccis claim in this action. As the evidence showed, there is no basis to the Nannuccis' claim to the 3'-wide, 40' long area alongside the actual fence. None of that area was ever used by the residents of the Nannucci house, whose use stopped at the fence. All of the raking, mowing, and other maintenance of that area was done by the Hynds' predecessors. The Nannuccis' claim to the remainder of this part of the disputed land — a kick- out 3' beyond the fence line starting at the outside corner of the fence where it turns to connect to the side-entrance porch, going an additional 3' into the Hynds' property, and then running the remaining 60' to the street — is based on their assertion that three trees, which grew to maturity, were planted along its edge by the Nannuccis' predecessors, [Note 6] that those trees are a sufficient "line of demarcation" to establish the basis of an adverse possession claim, and that the area from the far edge of the tree trunks back towards the Nannucci house was exclusively maintained by the owners of the Nannucci house. [Note 7] This "maintenance" is alleged to have been mowing and leaf-raking, as needed. [Note 8]

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that G.L. c. 260, §28 does not bar the Nannuccis' adverse possession claims, [Note 9] that they have established title by adverse possession to the area that was bounded by the former fence line and as that fence line would visually extend to the street (i.e., the 5' wide by 100' long area immediately abutting the record boundary line) but nothing beyond that area, and that the outer boundary of that adversely possessed area is a line parallel to the record boundary line, 5' outwards from it.

In particular, I find and rule that Nannuccis' predecessors installed the fence in the back yard more than twenty years prior to its October 15, 2012 removal, that they did so without permission, that it acted as a clear claim to the area it enclosed, and that the straight line visual extension of that fence to the street, coupled with the Nannuccis and their predecessors' exclusive raking and mowing of the area within that visually-extended line which gave it a distinctive "maintained" appearance, were a sufficient "line of demarcation" and sufficient acts for adverse possession of that area.

I further find and rule that the Nannuccis' predecessors' planting of the three trees in the area beyond that line (the additional 3' the Nannuccis now claim) and their predecessors' periodic raking of the leaves that fell on the ground around those trees — raking and leaf- blowing that was also done by the Hynds' predecessors in the entirety of that area around the trees — were not sufficient to establish adverse possession to that land (the additional 3') because the tree planting was not "adverse" and because, as the Hynds' predecessors' raking and other maintenance shows, the Hynds' predecessors continued to occupy it. The trees were planted there not as a line of demarcation for an adverse claim and would not reasonably have been viewed as such, but rather were a mutually convenient privacy feature for the two properties and planted in that location, with the Hynds' predecessors' express or implied permission, solely to have them far enough away from the Nannucci house that they would not be a nuisance to the roof, siding, and gutters of that house. The Nannuccis' claims to the 3' beyond the fence line, and their associated claims for damages for the removal of trees from that area, are thus dismissed, with prejudice. Their claim for damages for the Hynds' removal of the section of their back yard fence is dismissed, with prejudice, for failure adequately to prove those damages.

Facts and Analysis

The relevant facts, in addition to or supplementing those set forth above, are as follows. The Hynds' property is composed of two directly-abutting 5,000 square foot lots on Chaske Avenue in Newton as shown on an 1893 subdivision plan, plus a small amount of additional land behind one of those lots. Lot 50 and the additional land behind it (53-55 Chaske Avenue) is where the Hynds' two family house is located. Lot 51 is vacant land and, so far as the evidence shows, has always been used as part of the side yard for the two family house. The Nannuccis' property (60 Chaske Avenue), a single-family Victorian-style home, is the 4,993 square foot Lot 52 on the subdivision plan, and directly abuts Lot 51. It is abutted on its other side by conservation land.

The Hynds purchased their property on April 12, 2012. Mr. Hynds is a contractor, and has hopes of developing Lot 51 as a separate homesite under Newton's 5,000 square foot lot regulations. He thus had the lot surveyed and staked almost immediately. That survey showed that a fence in the backyard of 60 Chaske Avenue encroached over the record boundary approximately 5'. The accuracy of that survey and staking is undisputed.

At the time the Hynds' survey and staking was performed, the Nannuccis had 60 Chaske Avenue under agreement, but had not yet purchased it. Mr. Hynds wanted the encroaching fence removed, so he arranged to meet with the then-current owners of 60 Chaske Avenue and with the Nannuccis. That meeting took place on April 25, 2012, and both the Nannuccis' attorney (Ms. Nannucci's father, Terry Morris) and the real estate broker who had listed the property for sale also attended.

It was not the happiest of meetings. The record boundary runs close to the 60 Chaske Avenue house, and both the back yard fence and three tall trees that gave the house a measure of privacy were on the other side of the record boundary. Despite the disclaimer of accuracy on their mortgage plot plan and its recommendation that an instrument survey be conducted before any reliance was made, the Nannuccis had not had the property surveyed before they signed the purchase agreement and, so far as the record shows, had not received any warranty or assurances from the seller on the location of the boundary. They nonetheless believed that the boundary was on the far side of the trees and fence, and were not pleased at the prospect of a house being built so close to the one they were on the brink of purchasing. Most of the conversation at the meeting was between Mr. Hynds and the Nannuccis' attorney (Ms. Nannucci's father), who told Mr. Hynds that it was unlikely he could build a house on Lot 51 [Note 10] but that "the kids" (referring to the Nannuccis, Mrs. Nannucci being his daughter) would remove the encroaching part of the fence. It ended with Mr. Hynds still intending to proceed with his development plans, and expecting the fence to be removed shortly. For their part, even though now informed of the location of the record boundary, the Nannuccis elected to proceed with the house purchase, bought it on April 30, 2012, had interior renovations done, and moved in on July 10, 2012.

Nothing further happened until October 15, 2012 when Mr. Hynds, tired of waiting for the encroaching part of the fence to be removed, removed it himself and cut down the three trees, each of which showed signs of rot. The Nannuccis were angry at the loss of privacy and put up a solid, tall wooden fence all along the record boundary line to block out the view of Lot 51, which was now occupied by Mr. Hynds' back hoe and other equipment. [Note 11] Mr. Hynds has not yet constructed a house on the lot, and it is not clear whether he can actually do so. Relations between the parties continued to deteriorate, with quarrels about dogs, restraining orders sought, and complaints made to the Newton building inspector. This action was brought on October 17, 2014, two years after Mr. Hynds removed the fence encroachment and cut down the trees.

The Nannuccis' claim for compensation for cutting down the trees depends upon their successfully proving that they had adverse possession title to the land on which the trees were located. Since I find that they did not prove they had such title, I need not, and do not, address any of the facts relating to the value of the trees or any compensation to the Nannuccis for the removal of the trees.

As previously noted, the Nannuccis' adverse possession claims analytically divide into three separate geographic parts — the back yard area enclosed by the fence (5' over the record boundary), the line of that fence as visually extended to the street (also 5' past the record boundary), and the area on the other side of that fence line as far as the outer trunks of the three trees (an additional 3').

Neither the Nannuccis nor the Hynds had any knowledge of their properties' histories prior to their April 2012 purchases. The evidence relevant to the adverse possession claims thus came from prior owners, tenants, and neighbors, much of which was conflicting. None of the photographs admitted into evidence were taken before February 1999 so, while they are helpful to a degree, none are dispositive. Having heard the entirety of the evidence and assessed the reliability and credibility of the witnesses who gave it, I find the following.

It is undisputed that the fence in the back yard of the Nannucci property was installed there by the prior owners of that property, the MacLeod family. There was no real dispute that it was installed in the same place as it existed in April 2012, and had been maintained in that location continuously since its original installation. In any event, I so find. There was no real dispute that the fence began as a "chicken-wire" type fence, that it was subsequently replaced, in its exact same location, by wooden slats, and that, as the wooden slats rotted over time, they were replaced with new wooden slats. In any event, I so find. The only dispute was over when the fence was first installed — an important question because, if first installed after October 15, 1992, it would not have been there long enough for purposes of adverse possession. [Note 12] I find that it pre-dated that date, [Note 13] that it was installed in that location without permission from the owners of Lot 51, and that it was installed in that location in the belief, although erroneous, that it followed the record boundary line, which runs in a straight line from the rear of the property to the street.

What is important about the line the fence followed is the demarcation it represents of the line "claimed", i.e. used adversely. It pushes the side yard over an additional 5' in a straight line, parallel to the actual record boundary, and its line, visually extended along the same straight line, defines the area that the Nannuccis' predecessors maintained as their own through raking and mowing and, critically, would (or reasonably should) have been visually interpreted by the owners of Lot 51 as being used by the Nannuccis' predecessors as their own. General raking and mowing along a boundary, in and of itself without any more overt acts, is insufficient to establish adverse possession because, absent a line of demarcation, it is not sufficiently "adverse" to put the record owner on notice that a "claim" to the property is being made. Such raking and mowing along the edges of a boundary happens all the time in urban neighborhoods such as this, without anyone reasonably thinking that, unless they protest, they are losing land. See Lawrence, 439 Mass. at 421, 421 n.5, 422 (acts must be "so open and notorious that [they] may be presumed to have been known to the rightful owner," and of such a nature such that they place the owner on "constructive notice" that a claim of right was being asserted to his land; claimant must act "in a manner inconsistent with the true owner's rights," and to such a degree that the true owner should realize he must "take steps to vindicate his rights by legal action" or forever lose his land); see also Sea Pines Condominium III Ass'n, 61 Mass. App. Ct. at 847-848 ("[t]o succeed, the claimant 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") (internal citations and quotations omitted). Here, the fence and the visual extension of its line, coupled with the regular raking and mowing of the "extended" area which gave it a maintained appearance distinct from the area between it and the trees, together constitute sufficiently "open", "notorious", and "adverse" acts. Anything beyond that clearly visualized and maintained line does not.

Which brings us to the question of the trees, which are in the 3' beyond the visually extended fence line and its associated, distinctly maintained area. Those trees were clearly planted (the three were in a row), and I accept the evidence and the inferences from that evidence that they were planted by a MacLeod family member in the 1950's or 1960's (the Nannuccis' predecessors), well over twenty years before the filing of this case. I do not accept that they were an "open", "notorious", and "adverse" act for purposes of adverse possession, and expressly find otherwise.

I start with their location, which is beyond the fence line that, as discussed above, I find marked the outer limit of what could reasonably be interpreted by the record owners of Lot 51 as an adverse claim. They were of mutual benefit to both sides since they gave privacy to both, [Note 14] and were put there with express or implied permission. See Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). This is evidenced by the fact that the Hynds' predecessor owners continued to occupy the land around them by raking and blowing the leaves that fell on both sides. [Note 15] I find that they were planted where they were, as far out as they were, not to evidence a claim to that area (or which would reasonably be seen as such a claim, see Lawrence and Sea Pines Condominium III Ass'n, supra), but because they could not be planted any closer to the house without their roots endangering it. They were fast growing, consumed soil nutrients and water and seasonally shed large quantities of bean-shaped leaves that made growing grass or plants under them extremely difficult or impossible. The trees also needed to be away from the house to minimize house, roof and gutter damage from their leaves. Nothing grew under them to any significant extent, [Note 16] so the only real act of any kind in the area was leaf raking as needed, [Note 17] and both sides either raked or "blew" them with leaf blowers. [Note 18] The Nannuccis' predecessors' acts were thus not exclusive, which is an essential element of adverse possession.

As previously discussed, there were no adverse acts of any kind by the Nannuccis or their predecessors — not even mowing or raking — on the Hynds' side of the back yard fence, so there can be no adverse possession of any of that area. And, as just discussed, the planting of the three trees and periodically raking around them were not sufficient for adverse possession title to that area. All the Nannuccis' have established is adverse possession of the 5'-wide area bounded by the line of the former back yard fence as visually extended to the street, parallel to the record boundary line.

The Hynds contend that G.L. c.260, §28 time-bars adverse possession of any area because the claims to such title were not brought within one year after they "re-entered" the disputed land. I disagree. That is not what the statute says, and it is not what the statute intends. G.L. c. 260, §28 reads as follows:

No person shall be held to have been in possession of land within the meaning of this chapter merely by reason of having made an entry thereon, unless he has continued in open and peaceable possession thereof for one year next after such entry or unless an action has been commenced upon such entry and seisin within one year after he was ousted or dispossessed.

This is odd language, difficult for contemporary eyes to parse (it pre-dates the 1836 revision of the Massachusetts statutes, and was last amended in 1902), and has not been explained in any case law precedent. It does not apply to adverse possession, which had previously been addressed in G.L. c. 260, §21. See TBI Inc. v. Board of Health of N. Andover, 431 Mass. 9 , 18 (2000) (general statutory language yields to that which is more specific); Deutsche Bank Nat'l Trust Co., trustee v. Gabriel, 81 Mass. App. Ct. 564 , 567 n.12 (2012) ("[I]f a subsequent statute does not conflict with prior common law, then the common law continues to control") (citing Trombley v. Stevens-Duryea Co., 206 Mass. 516 , 519 (1910). It certainly cannot be read as the Hynds contend it should be, for such a reading would make no sense. [Note 19]

So far as I can tell, G.L. c. 260, §28 was meant to apply to causes of action which require that the claimant have "possession" of the land in order to bring them, see, e.g. G.L. c. 240, §1 ("try title") and G.L. c. 240, §6 ("quiet title"), and, if my reading is correct, it addresses situations where such possession will statutorily be found even if the claimant is no longer in actual possession, i.e. where the claimant had been in actual possession for at least a year after he first entered, or had brought his action within a year after being "ousted or dispossessed." In any event, it does not apply here.

Conclusion

For the foregoing reasons, I find and rule that the Nannuccis have established title by adverse possession to the 5' fence line as visually extended to the street (i.e. the 5' wide by 100' long area immediately abutting their eastern record boundary, on a line parallel to the record boundary), but nothing beyond that area. All other claims of the parties are DISMISSED, with prejudice.

Judgment shall enter accordingly.

SO ORDERED.