BRIAN SOPONSKI and LAURIE SOPONSKI v. DAVID DELOLLIS

Introduction

In this case, plaintiffs Brian and Laurie Soponski claim title by adverse possession to a narrow, 13'-wide strip of land, currently owned of record by defendant David DeLollis, that abuts the sideyard of their residence on Leicester Street in Auburn. In broad outline, the origin and details of their claim are as follows.

The Soponski property consists of two lots, "Lot 4" fronting on the street itself, and "Parcel B" to its rear. Both were previously owned by Mr. Soponski's parents and, before them, by Mr. Soponski's grandparents as part of a larger wooded tract near Stoneville Reservoir. Lot 4 was conveyed to Mr. Soponski's parents in 1949 for them to build a house, and they cleared the land and did so that year. Parcel B was added later to give the house a larger back yard. Mr. Soponski grew up in that house and, after his mother moved out subsequent to his father's death, he and Laurie received its title and made it their residence.

From the time Lot 4 was first cleared, the Soponski family believed that two iron surveyors' pipes marked the Lot's side boundary on the south, and considered all of the land north of the line of those pipes to be part of Lot 4 — clearing, using, and improving that area in the same ways they did for the rest of their property, fully incorporating it. As a matter of record title, however, they were wrong about its ownership. Instead of being accurate boundary markers, the pipes are approximately 13' beyond the true record boundary of Lot 4 — the result of a survey of Lot 4 done for the Soponskis in September 1948 that erroneously shifted its boundaries 13' south of their actual location. [Note 1]

The land between the record boundary of Lot 4 and the line of the two iron pipes is a 13'- wide, 149.47'- long strip running the depth of Lot 4. For ease of reference, I refer to it hereafter as the "disputed strip." As noted above, it is currently owned of record by defendant David DeLollis, and is part of a paper street labelled "40' right of way" on various plans. Until recently, the only "way" in that area was a single-track dirt driveway, no more than 15'-16' wide, running along the southern edge of the "40' right of way" and confined to that location by the Soponskis' acts of adverse possession in the disputed strip on its northern side. This driveway led to a summer cottage behind the Soponskis, and also provided access to a series of other summer cottages along the Stoneville Reservoir to the east. Mr. DeLollis, who currently owns all of those cottages and their associated land, has now had the dirt driveway graveled. Ex. 1 (attached) shows the areas just discussed. [Note 2]

The Soponskis concede that they do not have record title to the disputed strip, but contend that their activities on that land, tacked onto the activities of their predecessors, have resulted in their acquiring its title by adverse possession. [Note 3] They thus brought this action seeking such a declaration. Mr. DeLollis denies their claim.

The case was tried before me, jury-waived. Based on the testimony and documents admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully explained below, I find and rule that the Soponskis have title by adverse possession to the 13' x 149.47' strip, subject to an easement for the overhead power lines that pass through it.

Facts

These are the facts as I find them after trial.

The Parties' Properties

The Soponski property, 356 Leicester Street in Auburn, has two parts — "Lot 4" and "Parcel B" — originally separate but now merged by operation of law due to their common ownership. [Note 4] Since "Lot 4" is the part at the center of this dispute (Parcel B was a later addition, and the Soponskis' adverse possession claim does not include any extension of Parcel B's record boundary, see Ex. 1), all references hereafter to "the Soponski property" should be understood as referring solely to Lot 4.

The Soponski property has been in plaintiff Brian Soponski's family for generations. It was undeveloped land, part of a larger tract covered in brush and trees, until 1949 when Brian's paternal grandmother, Jennie Soponski, conveyed it to Brian's parents, Robert and Barbara Soponski, who cleared the land and built a house. Robert and Barbara lived there together until Robert's death in 1991, with Barbara remaining until 1997 when she moved out and the plaintiffs moved in. Brian received formal title in 1998, and subsequently conveyed title to himself and Laurie as tenants by the entirety. They own it in that manner today.

Testimony regarding the Soponskis' use of the disputed strip came primarily from two witnesses — plaintiff Brian Soponski's mother (and predecessor-in-title) Barbara, and Brian himself. As noted above, Barbara lived at the property from the time the house was built (1949) until she moved out in 1997. She continues to visit. Brian's knowledge dates back to his childhood. He was born in 1958, grew up in the house, and lived there until he left home in 1986. He regularly visited thereafter, and then moved back into the house with Laurie in 1997. They have been there ever since.

The testimony given by Brian and Barbara was fully credible and reliable on all material points, and I so find.

There are two iron surveyors' pipes in the ground thirteen feet beyond the Soponskis' record boundary line on its southern side: one by the street, and the other by the rear of the backyard. See Ex. 1. They have been there since at least September 1948 — the result of an erroneous survey, believed until recently to be accurate [Note 5] — and mark the outer edge of the disputed strip. In reliance on those monuments, the Soponskis cleared the disputed strip in 1949 and have continuously used it as part of their side yard since that time. That use included the planting and regular mowing of grass in what became a defined area inside the pipes, planting and maintaining rose bushes, flowers, blueberry bushes, and fruit trees in the area, the construction of a doghouse, grape arbor, outdoor fireplace, and rail fence, and the regular holding of family picnics, parties, and recreational games. Part of the Soponskis' driveway is also in the disputed strip.

The disputed strip is currently owned of record by defendant David DeLollis, who also owns the land behind the Soponskis, extending back to the Stoneville Reservoir, on which there are six former summer cottages. Mr. DeLollis currently lives in one of those cottages, and intends to demolish and replace them with a single, larger, lakeside residence.

As previously noted, access to the now-DeLollis land was over a single-lane dirt cart path which runs along the southern edge of the 40' right of way and is no more than 15'-16' wide. See Ex. 1. Mr. DeLollis has now graveled that dirt path. There are power lines serving the DeLollis property to the left of the path, running through the center of the disputed strip. Barbara Soponski testified that Arthur Anderson, the then-owner of the cottage behind the Soponski house and a prior record owner of the disputed strip (both now owned by Mr. DeLollis), came to her in the 1950's to ask permission to have the power lines put in the strip on their route to his cottage. I credit this testimony and, like the plaintiffs, take it as evidence of Mr. Anderson's belief that the Soponskis owned the disputed strip.

Two express easements were offered into evidence, with the parties disputing which of the two reflected the easement for these power lines. The answer may be both. The first, dated June 2, 1948, is from Mr. Anderson and his wife Thelma to the Worcester Suburban Electric Co. The Andersons had previously (December, 1946) conveyed their land on Leicester Street to Leonid and Hedwig Courcy, retaining only an access easement over it to get to their property behind that land. [Note 6] Thus, their 1948 easement to the electric company would only have granted an easement within the scope of their easement. The electric company would likely also have wanted an easement grant from the apparent fee owner once they discovered that the Andersons did not own that fee, which explains the second easement document from Robert and Barbara Soponski to the Worcester County Electric Company and New England Telephone & Telegraph Company (Jul. 28, 1954). This 1954 date is consistent with Ms. Soponski's memory of when she spoke with Mr. Anderson about the utility lines (a few years after the Soponskis built their house), and both the metes and bounds description in the Soponskis' deed and the survey markers in the ground (the iron pipes) would have indicated (although, as later discovered, erroneously) that the Soponskis owned the strip, thus leading to Mr. Anderson's request for their permission to install the utility lines across it, itself likely prompted by a request from the electric company. Moreover, even if neither of these easement documents is the "correct" one, Mr. Anderson's statement to Barbara stands on its own as evidence of Mr. Anderson's belief that the Soponskis owned the strip. That statement by Mr. Anderson would not bind the strip's record owners at the time the statement was made (the Courcys, to whom Mr. Anderson had deeded the strip years before as part of a larger piece of land), but as the statement of a prior owner of the strip it is admissible against Mr. DeLollis [Note 7] and, at the least, is a strong indication of where the location of the boundary line was generally understood to be by the landowners who abutted it — i.e., at the line of the iron pipes. [Note 8] As discussed more fully below, this is important because it undercuts Mr. DeLollis' argument that any occupation of the disputed strip by the Soponskis was permissive. If everyone believed the Soponskis owned the strip, permission would not have been sought, nor would it have been deemed to be needed.

Use of the Disputed Strip

Up until 1949, the disputed strip was fully wooded. Robert and Barbara Soponski cleared the strip that year in connection with the construction of their house and immediately thereafter began using it as part of their side yard. They continued that use, throughout their time in the house, [Note 9] openly, notoriously, adversely, exclusively, and without interruption in the following ways. As noted above, they began by clearing the area. Thereafter, they planted grass and regularly mowed it, with the grass growing thicker as time progressed. They installed and maintained various plantings within the strip, both along the line between the two iron pipes and within the land enclosed by that line, including rose bushes, blueberry bushes, flowers, peach trees, apple trees, rhubarb, and a grape arbor. They built and maintained structures at various times in the area, including a brick fireplace, a doghouse, and, at one point, a fence. They tethered their dog there. Their children regularly played there. And, over the years, they held regular cookouts, parties, and family gatherings there.

Brian and Laurie continued these activities from the time they moved into the house in 1997 through the present. Part of their driveway was constructed on the strip. They regularly mow and maintain the grass there, and trim and maintain the blueberry bushes and other shrubs. They planted strawberries and installed decorative rocks. And, like Brian when he was a child, their children regularly play there.

The Courcys, who lived next-door, never used the strip or suggested that they owned it, even though, as later discovered once accurate surveys were conducted, it was included in the record title of the property on which their home was located. They were thus the record owners of the strip until they sold their home in July 1980. [Note 10] I find that they, like the Soponskis, believed that the iron pipes marked the record boundary between the Soponski and Courcy properties, and thus that the Soponskis were the disputed strip's owners. The only time they went onto the strip was a single occasion in the 1970's when, seeing Robert Soponski cutting branches and shrubs there, Mr. Courcy came over to help. He did not do this because he thought he had any kind of ownership interest in the strip, as an assertion of possession, or as an interruption of the Soponskis' possession (I find that everyone, at that time, thought that the iron pipes marked the line of the record boundary between the properties), but only "[b]ecause [Robert] was clearing himself and I like to help. I had a crew of four or five other people clearing mine, so [as] a good neighbor, I helped him out." [Note 11] As he admitted, this was only "momentar[y]", and at the same time he helped the Soponskis trim a couple of trees in their front yard. [Note 12] To the extent he testified at trial that he "thought" he owned the strip at that time, I do not believe him. [Note 13] He said nothing of the kind then or later, and conceded that his focus was elsewhere ("I had my big project on the other side of the road [and] could care less about [this area]") [Note 14] and admitted that, from his point of view, "[i]t [the boundary line] was not an issue. It was a nonissue. It wasn't even disputed." [Note 15]

Arthur Anderson, who summered in the cottage behind the Soponskis (now owned by Mr. DeLollis) and was the record owner of the Courcy house parcel (and thus the disputed strip) until he sold it to the Courcys in December 1946, never used any part of the strip. Instead, he accessed his cottage, as did all the occupants of the cottages behind his, using the dirt driveway to the south of the strip. See Ex. 1. Indeed, Mr. Anderson's words and actions explicitly acknowledged the Soponskis' exclusive possession of the strip. As previously noted, after Robert and Barbara built their house, Mr. Anderson requested and received the Soponskis' permission to have utility poles installed on the strip to service his cottage behind them. The Soponskis agreed and signed the easement document, [Note 16] the utility poles and wires were placed on the disputed strip, and they have remained there ever since. Every three or four years, the utility company's forestry crew trims the trees within the disputed strip, but does nothing else. I find that this trimming, like the initial installation of the poles and wires, was (and is) done with the Soponskis' permission (see the 1954 easement document previously referenced), and has never been "adverse" to their claims or possession.

The plaintiffs (Brian and Laurie) have been using the disputed strip as their side yard since they moved into the house in 1997, and Brian's personal knowledge of its occupation and use prior to 1997 (he grew up in the house) dates back to the 1950's. Other than the installation of the utility poles and the utility company's maintenance of them as discussed above, he has never observed anyone other than members of his family and their guests using any part of the strip, except for the following.

Trucks plowing the dirt (now gravel) driveway serving the cottages behind the Soponski residence have occasionally pushed snow from the driveway into the line of the blueberry bushes. This is seasonal, and minor. The Soponskis have never objected because they have never considered it to be an incursion.

Mr. DeLollis came into the neighborhood in 1991, when he acquired title to the land behind the Soponskis down to the Stoneville Reservoir (approximately 12 ½ acres, including the six summer cottages previously referenced) and, with that, an appurtenant easement to access that land. He used the dirt driveway, which he subsequently graveled, for that access, not knowing at that time (because it had not yet been surveyed) that the record easement also included the disputed strip. Shortly after buying the 12 ½ acre parcel, Mr. DeLollis had a forester thin out its woods. Hundreds of trees were cut down and hauled away in trucks over the driveway. Those trucks sometimes crossed over the edge of the disputed strip. I find that this was temporary, sporadic, and minor, and did not interrupt the Soponskis' possession of the strip.

In 2000, Mr. DeLollis cleared eight-acres of his land to create a field. Removing the fill from his property required approximately 4,000 to 6,000 tractor-trailer trips over the now-graveled driveway. Some of these trucks occasionally crossed over the edge of the disputed strip as they turned into and out of the driveway, damaging the grass and decorative rocks near its entrance. Again, I find that this was temporary, sporadic, and minor, and did not interrupt the Soponskis' possession of the strip.

At some point in 2001, the Soponskis erected a rail fence in the disputed strip to better protect its edges. Mr. DeLollis' tenants damaged the fence, and Mr. DeLollis paid for the damage. He testified that he asked the Soponskis to move the fence at that time, believing that it was in his easement area.

In 2007, the Soponskis installed another rail fence in the disputed strip, which slightly extended past the iron pipes. There it remained until 2012 when Mr. DeLollis had a survey conducted, discovered that the fence was within the 40' right of way area, and had it removed. The Soponskis did not agree that the fence was not on their land, but did not reinstall it, or any new fence, at any time afterwards. Again, I need not and do not decide if this was an "interruption" of the Soponskis' possession, at least of the area where the fence had been, because, as discussed in the analysis section below, the Soponskis' rights in the disputed strip had already accrued.

Mr. DeLollis acquired record title to the disputed strip on April 19, 2016. He claims to have trimmed the brush in the strip from time to time, but I find that he has not done so regularly or noticeably. He claims to have blown leaves off the driveway into the disputed strip, but I find that this was neither noticeable nor regular. When it snows and he plows the driveway, he pushes the snow to both sides, including into the disputed area. On one occasion in late 2015/early 2016, he walked into the disputed area when Brian Soponski was outside. When Brian asked Mr. DeLollis what he was doing, he replied that the area was part of his easement, he was in the process of buying the land, and threatened to install a fence along its edge that would have cut off a portion of the Soponskis' driveway.

Further facts are set forth in the Analysis section below.

Analysis

To establish title by adverse possession to the disputed strip, the Soponskis have the burden to prove "nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); G.L. c. 260 § 21. "If any of these elements is left in doubt, the claimant cannot prevail." See Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968).

"The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put." La Chance v. Rubashe, 301 Mass. 488 , 490 (1938). A successful claimant must establish that it exercised "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." Id. at 491. "To assert dominion . . . an adverse possessor need only use the property 'as the average owner would use it.'" Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157 (2011), quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992).

The adverse use must be continuous or uninterrupted during the statutory period, but any continuous period of twenty years suffices so long as the twenty year period accrued before the action was filed. [Note 17] "Once the statutory period for adverse possession runs, the adverse possessor…becomes the lawful, actual possessor and the new 'real owner' entitled to bring a claim against even the record title owners." Owens v. Buccheri, Mem. & Order Pursuant to Rule 1:28, 89 Mass. App. Ct. 1115 , 2016 WL 1273143 at *1 (Mar. 31, 2016). This is so even if there has been no adjudication of such title; "the doctrine of adverse possession does not require that the [adverse possessor] proactively seek out a judicial determination that their adverse possession claim has ripened." Id. at *1, n.11.

The party claiming adverse possession must also prove the location and boundaries of the area claimed and that its acts "possessed" that area. That is not an issue here. The area claimed is bounded by the iron pipes, and the area within the line of those pipes was cleared by the Soponskis and then continuously cultivated and used by them thereafter in ways that were obvious, or should have been obvious, to the record owner. "Acts of enclosure or cultivation are evidence of exclusive possession." LaBounty v. Vickers, 352 Mass. 337 , 349 (1967). The line of the pipes, with the area inside clearly cultivated, gave it "a visible and readily apparent line of demarcation alongside the adjacent uncultivated areas." See Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 849 (2004).

The continuing acts of possession set forth above are more than sufficient for adverse possession. As previously noted, all that is needed is for the acts to have been open, notorious, and non-permissive, and of the type "as the average owner would use it." [Note 18] Brandao, 80 Mass. App. Ct. at 157. The initial clearing, the continuous obvious cultivation and plantings thereafter, the family and social gatherings, and the periodic construction or placement of structures or objects in the area, all of which were "adverse" and without permission, fall well within this criteria. Adverse possession title thus accrued by December 1969 — twenty years after the initial clearing and the other possessory acts began.

The record owners' acts, at least until 2012, were insufficient to interrupt that possession. As previously noted, they were temporary, sporadic, and minor. "Not every act by the owner on the land interrupts actual adverse possession." Rothery v. MacDonald, 329 Mass. 238 , 241 (1952). "To stop the running of the [prescriptive period], the owner's entry, with few exceptions [not applicable here], must be done openly on the land, so as to give notice of the interruption." Pugatch, 41 Mass. App. Ct. at 541-542. Acts that are "infrequent and innocuous" do not suffice to put the adverse possessor on notice that the record owner is "purporting to exercise dominion and control over that disputed piece of property." AM Properties LLC, 91 Mass. App. Ct. at 158. Thus, even had Mr. Courcy intended his single-instance cutting and trimming assistance to Robert Soponski in the 1970's to be an act of "dominion and control" over the strip (I have found that he did not), it was too innocuous to be so. Nor can his watching the Soponskis' acts over the years and not doing anything about them be seen as his "permission" for those acts. Rather, it was, at best, "acquiescence." "[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).

Similarly, the occasional and intermittent occurrences of trucks hauling trees from Mr. DeLollis' property and crossing over the edge of the disputed strip did not interrupt the Soponskis' possession. Neither did the sporadic and minor instances when trucks removing fill from Mr. DeLollis' property crossed over the edge of the disputed area and damaged the grass and decorative rocks on the strip. These acts were infrequent and innocuous and thus did not put the Soponskis on notice that Mr. DeLollis was exerting dominion and control over the disputed area. However, Mr. DeLollis' removal of the fence in 2012 was an act of dominion or control in the area (although done while Mr. DeLollis was simply an easement holder, not yet the record owner). [Note 19] But neither that act, nor any subsequent act, could take away the Soponskis' already accrued adverse possession title. These contrary acts would have had to have continued for at least twenty years to do so, [Note 20] and twenty years had not elapsed between 2012 and the filing of the lawsuit in 2016. [Note 21]

Mr. DeLollis' final argument is that the Soponskis' adverse possession claims are time-barred by G.L. c. 260, §28, which he contends required the Soponskis to file their action within one year after Mr. DeLollis removed their fence. I disagree. I have previously addressed the issue in Nannucci v. Hynds, 27 LCR 89 , 93-94 (2019) and repeat that analysis here.

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 specifically 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); see also Deutsche Bank Nat'l Trust Co., trustee v. Gabriel, 81 Mass. App. Ct. 564 , 567 n.12 (2012) ("If 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 Mr. DeLollis contends it should be, for such a reading would make no sense. [Note 22]

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. The Soponskis' adverse possession title had already accrued prior to the removal of the fence, and Mr. DeLollis could only take title back through his own adverse possession, which would require twenty years of "nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." See Ryan, 348 Mass. at 262, and the discussion of Owens at n.20.

Conclusion

For the foregoing reasons, I find and rule that the Soponskis have title by adverse possession to the 13' x 149.47' strip abutting the southern record boundary of Lot 4 — the disputed strip shown on the attached Ex. 1.

Judgment shall enter accordingly.

SO ORDERED.

exhibit 1