MARY B. BLISS, Trustee of Mary B. Bliss Revocable Trust of 2001 v. BOSTON CLEAR WATER COMPANY, LLC

Introduction

Gerald Bliss loved his lawn. From 1985, shortly after he and his wife bought their house on Lowell Street in Lynnfield, until his death, he maintained his grass, tended his garden, planted trees, laid mulch, and otherwise saw to the lawn all around his property. This care extended onto a portion of the property owned by his next-door neighbor and now owned by the defendant Boston Clear Water Company, LLC (BCW). Mr. Bliss's activities on the neighbor's property did not stop at lawn care and tree planting, however. They extended to paving a portion of the driveway, fencing in a well, creating a pitcher's mound and installing a hockey net, and parking cars. Many of these activities were continued after Mr. Bliss's death by his wife, Mary B. Bliss (Bliss). They culminate now in this action, a claim by Bliss, as Trustee of Mary B. Bliss Revocable Trust of 2001(Trust), to title over this area by adverse possession. The Trust and BCW also have competing trespass claims. After trial, I find that the Trust does have title to the so-called Disputed Area by adverse possession, except for the portion of the Disputed Area around the preexisting maple tree near Lowell Street. Thus, I find that Bliss has not trespassed upon BCW's property, but that BCW did trespass upon the Trust's property once its claim of adverse possession had ripened, resulting in an award of nominal damages.

Procedural History

The plaintiff Trust filed the verified complaint on September 11, 2017. On September 20, 2017, the Plaintiff's Motion for Approval of Memorandum of Lis Pendens was allowed and a Memorandum of Lis Pendens was endorsed. Defendant Boston Clear Water Company, LLC (BCW) filed its Answer to Verified Complaint and a verified counterclaim on October 5, 2017. The case management conference was held on October 20, 2017. On November 1, 2017, the Trust filed its Reply to Counterclaim. The pre-trial conference was held on November 7, 2018. A view was held on April 2, 2019. A trial was held on April 3, 2019, April 4, 2019, and April 5, 2019. Testimony was heard from Scott Jalbert, Bliss, Helen Burke, Joan Burke, Susan Motzkin, Lynn Sutherland, Willis O'Brien, Jaclyn Bliss, Jean Foresteire, Lawrence Vazzana, Anthony Gattineri, Henry Hidell, and Paul Marchionda. Exhibits 1-18 were admitted. Bliss filed Plaintiff's Post-Trial Memorandum on May 20, 2019. Bliss filed Plaintiff's Requests for Findings of Facts and Rulings of Law on May 28, 2019. BCW filed its Post-Trial Brief on May 28, 2019. BCW filed its Requested Findings of Fact and Conclusions of Law on May 28, 2019. Closing arguments were heard on July 10, 2019, and the case was then taken under advisement. The letter from Sander A. Rikleen, Esq. regarding Appeals Court cases was filed on September 6, 2019. This Decision follows.

Facts

Based on the view, [Note 1] the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

Parties:

1. Bliss, as trustee of the Trust, is the sole owner of the real property generally known and described as 175 Lowell Street, Lynnfield, Massachusetts (Bliss property). The Bliss property is shown as Lot 6 on the plan recorded at the Essex South Registry (registry) in Plan Book 113, Plan 97. Exhs. 1 ¶ 1, 3, 4; view.

2. BCW is a Massachusetts limited liability company having its principal place of business at 165 Lowell Street, Lynnfield, Massachusetts. BCW is the owner of the real property generally known and described as 165 Lowell Street, Lynnfield, Massachusetts (BCW property). The BCW property is shown as Lot B on the plan recorded at the registry in Plan Book 272, Plan 55. The BCW property abuts the Bliss property. Exhs. 1 ¶ 6, 5, 6; view.

3. Anthony Gattineri (Mr. Gattineri) is the manager of Snakebite Realty, LLC, which is the manager of BCW. Exh. 1 ¶ 7. Mr. Gattineri is the steward of BCW. Properties:

4. The Bliss property consists of a single-family residence and yard. It was originally purchased in the name of Gerald R. Bliss (Mr. Bliss) and Bliss, husband and wife as tenants by the entirety, on September 28, 1984, by a deed recorded in the registry at Book 7536, Page 83. After the death of Mr. Bliss, Bliss conveyed the property to herself as Trustee of the Trust by a deed dated November 1, 2016, and recorded in the registry at Book 35437, Page 537. Exhs. 2, 3; view.

5. The BCW property was once part of a larger lot. On August 5, 1991, the Town of Lynnfield Planning Board endorsed an ANR plan entitled "Plan of Land in Lynnfield, Mass." dated July 26, 1991 (ANR plan). The ANR plan was recorded in the registry in Plan Book 272, Page 55. Exh. 1 ¶ 2; Exh. 6.

6. The ANR Plan subdivided the larger lot, previously owned by Lucy Marie Smith Vazzana (Lucy Vazzana), into two lots: 163 Lowell Street, Lot A, Lynnfield, Massachusetts and 165 Lowell Street, Lot B, Lynnfield, Massachusetts. Lot B is the BCW property. Exh. 1 ¶ 3; Exh. 6.

7. On November 22, 1991, Lucy Vazzana conveyed Lot B to Lawrence M. Vazzana (Vazzana) and Lucy Vazzana, Trustees of Pocahontas Spring Realty Trust, u/d/t dated November 22, 1991. Exh. 1 ¶ 4; Exh. 7.

8. By deed dated June 20, 2014, Vazzana and Lucy Vazzana, Trustees of Pocahontas Spring Realty Trust, u/d/t dated November 22, 1991 conveyed Lot B to BCW. Exh. 1 ¶ 5; Exh. 5.

9. In this case, the Trust claims title by adverse possession over a portion of the BCW property that abuts the Bliss property (the Disputed Area). The Disputed Area is shown on a plan prepared by Hancock Associates dated July 11, 2017 (Hancock plan). It is described on the Hancock plan as the "Paved Driveway" to the "Edge of Mowed Grass." Exh. 8 (attached as Exhibit A); view.

Continuous Use:

10. Since 1985, the Disputed Area has been maintained by the Bliss household - first by Mr. Bliss and a landscaping company, and then by another landscaping company after Mr. Bliss passed away. Tr. 95:1-24.

11. Bliss testified that in the spring of 1985 Mr. Bliss "cut back through the brush" in the Disputed Area around 10-12 feet "and planted a row of trees along there" to keep trash from the next-door lot from blowing over into their driveway. Tr. 56:1-12. This row of trees is depicted as stars on the Hancock plan, and does not include the big tree nearest Lowell Street (maple tree). Tr. 56:17-19, Exh. 8. The maple tree was there when the family moved in in 1984. Tr. 69:18-23. The row of trees was only around 4 feet tall when initially planted. Tr. 57:9-11. Mr. Bliss watered the trees every weekend, and he pruned the trees. Tr. 69:1-3, 15-17. Bliss testified that she and Mr. Bliss also "put landscaping plastic down all around the trees," and that Mr. Bliss attempted to plant grass in the area that had been cleared on the far side of the line of trees towards what is now 165 Lowell Street. Tr. 58:7-8, 9-10, 23-24. Bliss also testified that Mr. Bliss "would weed-whack [the Disputed Area] almost every week" and "[h]e would rake [the Disputed Area]." Tr. 60:10-13. Now, Bliss's "landscapers blow it and maintain it." Tr. 60:13-14.

12. Jaclyn Bliss, Bliss's daughter (Jaclyn), also testified that the maple tree was an original tree, and that her "father planted the evergreen trees that were below it." Tr. 314:10-15. Jaclyn testified that her father "watered [the trees], he planted grass seed around them, and on a couple of occasions [she] helped him try to lay some mulch around the base of the trees." Tr. 315:16-19.

13. Jean Foresteire, a Bliss neighbor who lived across the street at 170 Lowell Street (Foresteire), recalls overhearing her father talking with her mother about Mr. Bliss planting trees in the Disputed Area sometime in the mid-1980s. 444:1-19. She also testified that Mr. Bliss "was raking and watering and maintaining" in the Disputed Area, and that she has additionally seen a landscaping company coming into the area to keep it neat, "planting flowers, watering, raking." Tr. 442:21-24; 443:17-19.

14. Susan Motzkin (Motzkin), a family friend who lived in Lynnfield and frequented the Bliss household, testified that Mr. Bliss "would always take care of going in [the Disputed Area] and cleaning out that area," that she remembered him "raking" and "digging out some weeds." Tr. 204:1-7. She additionally testified that she only ever saw Mr. Bliss watering in the Disputed Area. Tr. 207:19-21.

15. Bliss's sister, Helen Burke (Helen), testified that she observed Mr. Bliss caring for the Disputed Area, in that he "would water everything, and he was always watering land out there, and he would clean it, and it was always neat and clean. Aesthetically, it looked very nice. . ." Tr. 144:19-23. Additionally, Helen remarked that "Jerry believed in water and so he watered everything a lot." Tr. 148:24-25; Tr. 149:1.

16. Contrary to all of the other witness testimony, Vazzana, testified that he never observed landscapers or the Bliss family working the land in the Disputed Area. Tr. 397:16-19.

17. Mr. Gattineri testified that he did observe Bliss's landscapers in the Disputed Area. Tr. 487:20-25; 488:1-6.

18. Bliss testified that the fence around the Bliss well in the Disputed Area was installed in 1989, and has remained unchanged since then. Tr. 66:20-25; 67:1-17.

19. The Bliss family also utilized the Disputed Area for play. Tr. 70:5-6. Bliss testified, "The kids used to play over there a lot, and my husband was a baseball guy so he had built for my son, who was a pitcher, a pitcher's mound, and they used to practice over there a lot baseball and pitching." Tr. 70:1-9. The pitcher's mound was in use from around 1990-2000. Tr. 71:8-16.

20. Lynn Sutherland, a friend of Bliss who frequently visited the Bliss family home (Sutherland), testified that she always thought of the Disputed Area as Bliss land because the Bliss family used the Disputed Area and "it was always cleared that way, it was maintained that way, the kids played there, people drove there, used that driveway, used the side of the driveway." Tr. 244:24-25; Tr. 245:1-3. Sutherland testified about parking her car between the large maple tree and the next tree in line, and that other Bliss guests would park their cars similarly on the property. Tr. 258:1-8; see Exh. 8.

21. Vazzana testified to noticing a parked car in the Disputed Area. Tr. 398:1-3.

22. Jaclyn testified that her "father built a pitcher's mound for [her] brother on the property," on "the flatter part of the disputed area." Tr. 318:1-8. She testified that it was a "pretty brilliant" place to put the pitcher's mound "because it was a natural backstop," "[s]o when the pitcher would pitch to the catcher, the ball wouldn't roll into the street, it would hit the hill and just come right back." Tr. 318:17-22. Jaclyn also testified that she would park in the driveway turnout "on part of the land that is the disputed area." Tr. 342:5-13; see Exh. 8.

23. Bliss's sister, Joan Burke (Joan), also testified about the pitcher's mound in the Disputed Area, and that the mound was elevated and the children "would pitch towards Lowell Street, so [they] would pitch up." Tr. 171:14-15.

24. Motzkin also testified about children playing in the Disputed Area, and that the adults "would park specifically in a certain way so that the kids could play there." Tr. 204:6-7; Tr. 219:19-22.

25. Helen testified about the pitcher's mound in the Disputed Area, and that her "brother-in-law would be out there coaching Conor and the other kids all the time, and obviously his impression was or his belief was that it was important to build strength, and that's why the mound was where the kids would have to pitch uphill as they practiced." Tr. 140:22-25; Tr. 141:1-2.

26. Bliss also testified about a hockey net, permanently placed in the turnout area of the driveway with stakes. Tr. 71:21-25. The hockey net was installed somewhere between 1986-1987, and remained until 2000 when Bliss's son left for college. Tr. 72:24, 73:1-2. The kids would rollerblade and play street hockey in the paved area, shooting towards the net which was in the Disputed Area. Tr. 73:8-14. Jaclyn testified that she would "use the hockey net that's been discussed for lacrosse practice." Tr. 323:11-12.

27. Bliss testified that other "kids were there all the time, after school and on weekends," to play hockey and baseball in the Disputed Area. Tr. 73:17-22. Jaclyn also testified that she remembered that "other kids from the neighborhood who would participate [in playing]." Tr. 322:12-14.

28. Helen corroborated that she observed activities in the Disputed Area when she made visits to the Bliss home. She testified that she remembers "the hockey net, and Conor playing hockey there, and [she] also remember[s] the pitcher's mound." Tr. 140:19-21.

29. Contrary to all of the other witness testimony, Vazzana testified that he never observed children playing in the Disputed Area. Tr. 397:20-25; Tr. 404:20-22.

30. I credit the testimony of Bliss, Jaclyn, Foresteire, Motzkin, Helen, Sutherland, and Joan regarding the continuous use of the Disputed Area. At the view, I observed evidence of the landscaping, maintenance, driveway turnout, and well in the Disputed Area. View.

31. There is, however, no evidence that the Bliss family used the portion of the Disputed Area between the street and just below the maple tree, and I observed no evidence of such use. View; see Exh. 8.

32. For the rest of my factual findings going forward, references to the "Disputed Area" shall mean that part of the Disputed Area that does not include the portion from the street to just below the maple tree. See Exh. 8.

Open/Notorious:

33. Bliss testified there was a clear distinction between the Disputed Area they maintained, and the abutting property. She remarked, "on the side that we were maintaining it was like . . . the leaves were kept at bay. . . Just beyond that, it was pretty wild, bramble filled . . ." Tr. 61:1-5. She testified the distinction was visible from Lowell Street, in that "[i]f you were standing at Lowell Street looking down, you could see a line." Tr. 62:12-16.

34. Jaclyn also testified that "there was a very definitive line between the area that [her] father cared for and the area beyond that line. It was full of brush and bushes and trees." Tr. 316:7-10.

35. Helen also testified that "[t]he land that Jerry was caring for was neat and was aesthetically cleaned," and that "[t]he land past it was brambles and everything." Tr. 145:3-5.

36. Joan testified that she "observed the disputed area to be more neat, neatly maintained, so that it was clear that - in my opinion, that somebody was taking care of that," and in contrast, "to the side of the disputed area, which was towards at the time Pocahontas Water, was . . . an overgrown, bushy area with lots of, you know, bushes and trees that were just not well kept." Tr. 178:23-25; Tr. 179:1-5. She "observed it to be remarkably different." Tr. 179:6.

37. Willis O'Brien, Bliss's neighbor who lives at 155 Lowell Street (O'Brien), remarked that the Disputed Area was visible during daytime or nighttime, so if you were to pass by the Disputed Area at a time when the sun was not out, you could still see the Disputed Area. Tr. 274:5-9.

38. O'Brien testified that the difference between the Disputed Area land and the spring water company land was "quite clear." Tr. 285:14-19. He remarked that "there's trash that lines either side of the driveway on the water company property," and that when he "get[s] to the neighbor's [Bliss's] treeline . . . it's very, very nice." Tr. 281:15-19.

39. Foresteire remarked that "it's a clear distinction" between the Disputed Area that the Bliss family maintained and the spring property next door, and that she could easily observe the distinction standing on her property, across the street. Tr. 450:21; Tr. 457:3-16.

40. Sutherland testified that there was a clear distinction between the land Mr. Bliss cared for and maintained, versus the land that he did not care for and maintain. Tr. 245:14-19.

41. I credit the testimony of Bliss, Jaclyn, Helen, Joan, O'Brien, Foresteire, and Sutherland regarding the open and notorious nature of the use of the Disputed Area. At the view, I observed the clear distinction between the Disputed Area and the rest of the BCW property that the witnesses referred to. I also observed that the Disputed Area was visible and observable from the street. View.

Exclusive:

42. Bliss testified she never observed anyone other than her family or guests using the Disputed Area. Tr. 74:17-22.

43. Jaclyn testified that there was "[o]nly one time since we moved in in 1984" that she saw someone other than her family or a guest of the Bliss family within the Disputed Area, and that "[i]t was in the summer of 2017, and it was Mr. Gattineri who [she] observed mowing the grass in the disputed area." Tr. 326:10-18.

44. Joan testified that while visiting Bliss's home, she never observed anyone in the Disputed Area who was not a Bliss family member or one of their friends or guests. Tr. 174:19-23.

45. Motzkin also testified that she never saw anybody in the Disputed Area or using the Disputed Area, who was not a Bliss family member or guest. Tr. 216:4-7.

46. Vazzana, the former owner of the spring property, also confirmed that he has no memory of ever being in the Disputed Area himself. Tr. 421:9-12; 432:19-23.

47. Sutherland testified that she has never seen anyone besides the Bliss family and Bliss family guests using the Disputed Area. Tr. 251:16-19.

48. O'Brien testified that he never saw somebody from the spring water company in the Disputed Area. Tr. 285:4-7.

49. Mr. Gattineri testified that he rode his lawnmower into the Disputed Area on June 9, 2017, and that he had previously done so on other occasions since his purchase of the BCW property in 2014. Tr. 491:10-25; 492:1-25; 493:1-5; 504:4-21.

50. I credit the testimony of Bliss, Jaclyn, Joan, Motzkin, Vazzana, Sutherland, O'Brien, and Gattineri regarding the exclusive use of the Disputed Area. I find that the Bliss family used the Disputed Area exclusively until 2014, when Gattineri first entered it to mow.

Adverse (non-permissive):

51. Former owner Vazzana testified that the Bliss family never sought, and was never provided permission, to use or occupy the Disputed Area. He testified that "this whole thing boils down to them taking some land that was ours, and that was wrong, they should have come and asked us about it." Tr. 384:1-4.

52. When counsel for BCW directed Vazzana to the Disputed Area as shown on Exhibit 8, Vazzana testified "this is where they illegally took some land right over here." Tr. 391:8-15. He additionally testified to the fact that "they took [land] and said they cleared it out and used it," but that "[t]hey never got our approval, but they did it." Tr. 391:19-21. He reiterated "[s]omebody cleared this out. . . but they never asked us about it." Tr. 399:3-5.

53. Bliss did not know where the surveyed property line was located until survey work was completed in 2016. Tr. 64:15-25; 65:1-9.

54. I credit the testimony of Vazzana and Bliss regarding the adverse use of the Disputed Area.

Trespass

55. As discussed, Mr. Gattineri testified that he rode his lawnmower in the Disputed Area on June 9, 2017, and that he had previously done so on other occasions since his purchase of the property in 2014. Tr. 491:10-25; 492:1-25; 493:1-5; 504:4-21.

56. Bliss testified that she was upset Mr. Gattineri was in the Disputed Area, so Jaclyn went outside and asked Mr. Gattineri to leave. Tr. 80:9-25; 81:1-13; 326:10-25; 327:1-25; 328:1-17.

57. On June 7, 2017, Bliss discovered orange paint on the trunks of several trees in the Disputed Area, on the sides of the trunks facing her house, as well as an orange line painted across the turnout portion of her driveway. Tr. 83:16-25; 84:1-25; 85:1-25; Exh. 13, photo. 5-8; Exh. 10.

58. Mr. Gattineri testified that he personally entered the Disputed Area and painted the orange stripes on Bliss's trees. Tr. 512:3-25; 513:1-10.

59. The orange paint remains visible on the trees that Mr. Bliss planted. View; Exh. 13, photo. 5-8.

60. In April 2017, Bliss entered BCW's property to retrieve her elderly dog who had wandered into the wooded area of the BCW property and was having a hard time getting out. Tr. 78:9-12.

61. After Bliss retrieved her dog and went home, the police came to her door and said there had been a complaint that she had been trespassing on BCW land. Tr. 78:14-16.

62. Mr. Gattineri testified that he called the police because he was concerned that Bliss's trespass "poison[ed] the well." Tr. 494:10-15.

63. There was a pile of mulch found on BCW property, but no evidence was presented at trial as to the origins of the pile of mulch. Upon learning of the pile, however, Bliss had it promptly removed by her landscaper. Tr. 82:1-17.

64. BCW accused Bliss and her surveyor of tampering with/removing stakes placed by BCW's surveyor in 2017 and resetting wetlands flags. BCW presented no evidence at trial supporting these allegations.

65. Bliss and Scott Jalbert (Jalbert) of Hancock Associates both denied having removed or tampered with survey stakes, resetting wetlands flags, or knowing anything about them. Tr. 26:6-24 (Jalbert); 82:22-25; 83:1-15 (Bliss).

66. I credit Mr. Gattineri's testimony regarding his entries onto the Disputed Area.

67. I credit Bliss's testimony regarding having to extricate her elderly dog from the brambles.

68. I credit Bliss's testimony regarding the pile of mulch.

69. I credit Bliss's and Jalbert's testimony regarding a lack of knowledge about the stakes and wetlands flags.

Discussion

I. 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." Kendall v. Selvaggio, 413 Mass. 619 , 621-622, (1922), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G. L. c. 260, §21. The person claiming title has the burden of proving adverse possession, and this burden "extends to all of the necessary elements of such possession." Mendonca v. Cities Serv. Oil Co. of Pennsylvania, 354 Mass. 323 , 326 (1968) quoting Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). In this case, I find that the adverse possession period began in 1985, when Mr. Bliss first began maintaining the Bliss property, and ended no earlier than 2014, when Mr. Gattineri testified he first entered the Disputed Area to mow it, thus defeating any exclusive use. Thus, I examine whether the Trust has established all the elements of adverse possession during a continuous twenty-year period between 1985 and 2014.

A. Continuous Use

"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). The context of the landscape is significant in determining whether or not adverse possession is established. Miller v. Abramson, 95 Mass. App. Ct. 828 , 833 (2019). "[A] use that is sufficient to establish ownership in a densely populated neighborhood may be inadequate in an isolated, wooded setting." Id. To establish title by adverse possession, "the possessor must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owner and therefore in actual hostility to [the true owner] irrespective of the possessor's actual state of mind or intent." Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

Lawn care and yard maintenance are uses that may establish a legally cognizable adverse possession claim. Mancini v. Spagtacular, LLC, 95 Mass. App. Ct. 836 , 843 (2019); Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157 (2011) (adverse possession found where primary activities included mowing, cultivation, weeding, parking cars, and playing with children); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993) (adverse possession found where use of land "consisted of little more than maintenance of a suburban lawn"). For example, when landowners "engaged in the typical suburban lawn care . . . on a continuous basis - with a commercial landscaper conducting the activity in plain sight once per week from April through November for more than twenty years," and the owners "treated the larger trees and shrubs along one side of the disputed area as their own, with regular pruning," the court found this activity constituted "relatively passive use of the disputed land" and "was sufficient to satisfy the elements of adverse possession." Miller, 95 Mass. App. Ct. at 833-834.

Here, the Trust has established continuous use of the Disputed Area since the spring of 1985, when Mr. Bliss "cut back through the brush" in the Disputed Area around 10-12 feet "and planted a row of trees along there" to keep trash from the next-door lot from blowing over into their driveway. Tr. 56:1-11. Much testimony concerned Mr. Bliss's dedicated lawn care and maintenance of the Disputed Area. Tr. 69:1-3, 15-17; Tr. 315:16-19. Bliss testified that she and Mr. Bliss also "put landscaping plastic down all around the trees," and that Mr. Bliss attempted to plant grass in the area that had been cleared on the far side of the line of trees towards what is now 165 Lowell Street. Tr. 58:7-8, 9-10, 23-24. Bliss also testified that Mr. Bliss "would weed-whack almost every week" and "[h]e would rake [the Disputed Area]." Tr. 60:10-13. Other members of the Lynnfield community and friends always noticed Mr. Bliss "raking and watering and maintaining" in the Disputed area. Tr. 442:21-24. Motzkin testified that Mr. Bliss "would always take care of going in [the Disputed Area] and cleaning out that area," and that she remembered him "raking" and "digging out some weeds." Tr. 204:1-7. Helen testified that she observed Mr. Bliss caring for the Disputed Area, in that he "would water everything, and he was always watering land out there, and he would clean it, and it was always neat and clean. Aesthetically, it looked very nice. . ." Tr. 144:19-23. Even after Mr. Bliss died, Bliss hired a new landscaper to keep up the maintenance of the Disputed Area. Tr. 60:13-14. Foresteire has noticed a landscaping company coming into the area to keep it neat, "planting flowers, watering, raking." Tr. Tr. 442:21-24. I observed the results of the yard care, landscaping, and the planted trees, on the view.

Massachusetts case law also recognizes that, while the level of intensity of use may change over time, that change in intensity does not defeat an adverse possession claim:

In the normal course of family life, a residential back or side yard may be used intensively in years when young, active children live on the property, but much more passively when the inhabitants are older, less mobile, or infirm. Accordingly, the relevant question in this context is not whether the use of land is equally intense for the entire twenty-year period, but whether the possessor has maintained dominion and control for that same amount of time.

Mancini, 95 Mass. App. Ct. at 842. In this case, in addition to the Bliss family maintaining the Disputed Area, the Bliss children enjoyed playing in the Disputed Area. Bliss testified, "The kids used to play over there a lot, and my husband was a baseball guy so he had built for my son, who was a pitcher, a pitcher's mound, and they used to practice over there a lot baseball and pitching." Tr. 70:1-9. Jaclyn testified about her brother utilizing the pitcher's mound, Joan testified about children using the pitcher's mound, and Helen testified about Mr. Bliss coaching the children, using the pitcher's mound. Tr. 318:2-8; Tr. 171:14-15; Tr. 140:22-25; Tr. 141:1-2.

In addition to the pitcher's mound, there was much testimony about a hockey net that was also placed in the Disputed Area. Bliss testified about the hockey net, permanently placed in the turnout area of the driveway with stakes. Tr. 71:21-25. The kids would rollerblade and play street hockey in the paved area, and shoot towards the net which was in the Disputed Area. Tr. 73:8-14. Jaclyn testified that she would "use the hockey net that's been discussed for lacrosse practice." Tr. 323:10-12. Helen also testified about "the hockey net, and Conor playing hockey there, and [she] also remember[s] the pitcher's mound." Tr. 140:19-21.

There was also a water well in the Disputed Area. Bliss testified that the fence around the well was installed in 1989, and has remained unchanged since then. Tr. 66:20-25; 67:1-17. The Bliss family and guests also used the Disputed Area for parking. Sutherland testified about parking her car between the large maple tree and the next tree in line, and that other Bliss guests would park their cars similarly on the property. Tr. 258:1-7. Jaclyn also testified that she would park in the driveway turnout "on part of the land that is the disputed area." Tr. 342:5-13.

Even though the pitcher's mound was only in use from around 1990-2000, when the children grew up and stopped playing, and the hockey net was in use from somewhere between 1986-1987 and remained until 2000 when Bliss's son left for college, Bliss has maintained dominion and control over the Disputed Area for the requisite 20-year period, as discussed in Mancini. The landscape in the area is maintained, individuals still park in the Disputed Area and use the turnout, and the fence around the well remains unchanged. Tr. 66:20-25; 67:1-17; Tr. 71:8-16. Similar to Brandao, the primary activities in the Disputed Area included mowing, weeding, parking cars, and playing with children. As Sutherland testified, she always thought of the Disputed Area as Bliss land because the Bliss family used the Disputed Area and that "it was always cleared that way, it was maintained that way, the kids played there, people drove there, and used that driveway, used the side of the driveway." Tr. 244:24-25; Tr. 245:1-3.

The exception to this use is the area around the maple tree. The maple tree was on the standing in the Disputed Area when the Blisses purchased the Bliss property in 1984. Tr. 69:18-23. There was no evidence that the Bliss family used the portion of the Disputed Area around the maple tree - that is, between the street to about five feet past the maple tree. See Exh. 8 Thus, I find that the Bliss family has maintained continuous use of the Disputed Area, except for the part of the Disputed Area between the street and a point five feet past the maple tree, for the requisite 20-year period. That is, they used that portion of the Disputed Area continuously between 1985 and the present.

The discussion of the remaining elements of adverse possession applies only to the portion of the Disputed Area that I have found the Bliss family used.

B. Open and Notorious

"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, 439 Mass. at 421, quoting Ottavia, 338 Mass. at 333. Explicit notice of adverse use is not required. Lawrence,

439 Mass. at 421; Ottavia, 338 Mass. at 334 ("Where the user has acted, without license or permission of the true owner, in a manner inconsistent with the true owner's rights, the acts alone . . . may be sufficient to put the true owner on notice of the nonpermissive use."); Poignard v. Smith, 23 Mass. 172 , 178 (1828) (where true owners were both out of the state, adverse possession was still found because "acts of notoriety, such as building a fence round the land or erecting buildings upon it, are notice to all the world"). "Open and notorious use of a property is thus deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not." Lawrence, 439 Mass. at 422. For use to be open, "the use must be 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). Bliss and her family used the Disputed Area in an open and notorious manner. Even

though the previous owner of the spring, Vazzana, testified that living right next door to the property, he never observed children playing in the Disputed Area or the Bliss family/landscapers maintaining that area, several other witnesses testified to the contrary and I credit their testimony. Tr. 397:20-25; Tr. 404:20-22. Bliss testified that the distinction between the Disputed Area and the rest of the BCW property was visible from Lowell Street, in that "[i]f you were standing at Lowell Street looking down, you could see a line." Tr. 62:12-16. Jaclyn also testified that "there was a very definitive line between the area that [her] father cared for and the area beyond that line. It was full of brush and bushes and trees." Tr. 316:7-10. What I saw on the view is consistent with this testimony.

Bliss family members and guests openly parked in the Disputed Area. Jaclyn testified that she would park in the driveway turnout "on part of the land that is the disputed area." Tr. 342:5-13. Sutherland testified about parking her car between the large maple tree and the next tree in line, and that other Bliss guests would park their cars similarly on the property. Tr. 258:1-7. Motzkin also testified that the adults "would park specifically in a certain way so that the kids could play [in the Disputed Area]." Tr. 204:6-7; Tr. 219:19-25. Vazzana even admitted to noticing a parked car in the Disputed Area. 398:1-4.

Neighbors noted the Bliss family's open and notorious use of the Disputed Area. O'Brien, the neighbor living two houses away from the Bliss property, testified that the difference between the Disputed Area land and the BCW property was easily observable and "quite clear." Tr. 285:14-19. He remarked that "there's trash that lines either side of the driveway on the water company property," and that when he "get[s] to the neighbor's treeline . . . it's very, very nice." Tr. 281:14-19. Additionally, O'Brien testified that the Disputed Area was visible during daytime or nighttime, so if one were to pass by the Disputed Area at a time when the sun was not out, one could still see the Disputed Area. Tr. 274:5-9. Foresteire, the neighbor living directly across the street from the Bliss property, also testified to "a clear distinction" between the Disputed Area that the Bliss family maintained and the BCW property next door, and that she could easily observe the distinction standing on her property, across the street. Tr. 450:21; Tr. 457:3-16.

In addition to the neighbors in the community, several friends who visited the Bliss property testified to a clear, observable distinction between the Disputed Area and the BCW property next door. Sutherland testified that there was a clear distinction between the land Mr. Bliss cared for and maintained versus the land that he did not care for and maintain. Tr. 245:14-19. Helen also testified that "[t]he land that Jerry was caring for was neat and was aesthetically cleaned," and that "[t]he land past it was brambles and everything." Tr. 145:3-5. Joan testified that she "observed the disputed area to be more neat, neatly maintained, so that it was clear that - in [her] opinion, that somebody was taking care of that," and in contrast, "to the side of the disputed area, which was towards at the time Pocahontas Water, was . . . an overgrown, bushy area with lots of, you know, bushes and trees that were just not well kept." Tr. 178:23-25; Tr. 179:1-5. She "observed it to be remarkably different." Tr. 179:6. Again, what I saw on the view confirms this testimony.

A lot of testimony described children and neighborhood children openly playing in the Disputed Area for at least ten years. Their playing was not concealed and was noticed by many witnesses who testified. Tr. 244:24-25 (Sutherland); Tr. 245:1-3 (Sutherland); Tr. 318:2-8 (Jaclyn); Tr. 322:12-14 (Jaclyn); Tr. 171:14-15 (Joan); Tr. 204:6-7 (Motzkin); Tr. 219:19-25 (Motzkin); Tr. 140:19-21 (Helen); Tr. 140:22-25 (Helen); Tr. 141:1-2 (Helen); Tr. 73:8-14 (Bliss); Tr. 73:17-22 (Bliss). The maintenance of the Disputed Area was extensive and noticeable, first completed by Mr. Bliss and subsequently completed by a landscaping company after his death. Additionally, Bliss family members and guests openly parked in the Disputed Area. The use was open, and it was sufficiently pronounced to be made known to visitors of the Bliss property and neighbors who passed by and looked out their windows. Whether or not Vazzana actually noticed the Bliss family use is immaterial. Their use of the Disputed Area placed Vazzana on constructive notice.

C. Exclusivity

"A claimant's use is 'exclusive' for purposes of establishing title by adverse possession if such use excludes not only the record owner but 'all third persons to the extent that the owner would have excluded them.'" Brandao, 80 Mass. App. Ct. at 158 quoting Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To demonstrate exclusivity, "[s]uch use must encompass a 'disseisin' of the record owner." Peck, 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). A fence, regardless of who erected it, is a way to establish exclusive use of the property. Brandao, 80 Mass. App. Ct. at 157-158.

The Bliss family exclusively occupied the Disputed Area from 1985, until Mr. Gattineri first entered the Disputed Area to mow the grass after BCW purchased the BCW property in 2014. Tr. 326:10-18, 491:10-25; 492:1-25; 493:1-5; 504:4-21. Several witnesses testified that the Bliss family use was exclusive, and no one other than Bliss family members, Bliss guests, or Bliss landscapers spent any time in the Disputed Area. Bliss testified she never observed anyone other than her family or guests using the Disputed Area. Tr. 74:17-22. Joan testified that while visiting Bliss's home, she never observed anyone in the Disputed Area who was not a Bliss family member or one of their friends or guests. Tr. 174:19-23. Motzkin also testified that she never saw anybody in the Disputed Area or using the Disputed Area who was not a Bliss family member or guest. Tr. 216:4-7. Sutherland testified that she has never seen anyone besides the Bliss family and Bliss family guests using the Disputed Area. Tr. 251:16-19. O'Brien testified that he never saw somebody from the spring water company in the Disputed Area. Tr. 285:4-7. Even the prior owner, Vazzana, testified that he has no memory of ever being in the Disputed Area himself. Tr. 421:9-12; 432:19-23. Mr. Gattineri, the current owner, admitted that he observed Bliss's landscapers in the Disputed Area. Tr. 487:20-25; 488:1-6. A fence is one way to establish exclusive use of an area, and Bliss testified that the fence around the Bliss well in the Disputed Area was installed in 1989, and has remained unchanged since then. Tr. 66:20-25; 67:1-17. Cultivation of an area can also demonstrate exclusive possession, and many witnesses testified that the Bliss family exclusively cultivated and maintained the Disputed Area for a period extending past the 20-year requirement.

D. Adverse/Non-permissive

The essence of adverse possession is that the possessor's use of the land must be adverse or hostile to the true owner, meaning that the use is without permission of the owner. Totman v. Malloy, 431 Mass. 143 , 145 (2000). "The essence of nonpermissive use is lack of consent from the true owner." Id.; Ottavia, 338 Mass. at 333-334. Accordingly, if the true owner gives permission to use his land, there can be no adverse possession. Kendall, 413 Mass. at 623. "One's use of another person's property is adverse to that person if the manner of his use and the circumstances thereof demonstrate that he does not recognize or consider himself to be subject to an authority in that person to prevent his use of the property." Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976). "It is well established in Massachusetts that permissive use based on a mutual mistake as to the location of a boundary line will not defeat a claim of adverse possession." Kendall, 413 Mass. at 622. The possessor's subjective state of mind or intent is irrelevant to a claim of adverse possession. Id. at 623. One can obtain title by adverse possession even if he or she does not intend to deprive another of property. Flynn v. Korsack, 343 Mass. 15 , 19 (1961); Van Allen v. Sweet, 239 Mass. 571 , 574-575 (1921). Thus, even if the possessor believes his use is permissive because of a mistake as to titles or the location of a boundary line with adjoining land, his claim is not defeated so long as the nature of the use and resulting occupancy of the land is sufficient to indicate adversity. Kendall, 413 Mass. at 622-623; Boutin v. Perreault, 343 Mass. 329 , 331-332 (1961).

It is irrelevant that Bliss did not know where the surveyed property line was located until survey work was completed in 2016, because the nature and use of the Disputed Area and the resulting occupancy of that land is sufficient to indicate adverse use in this case. Tr. 64:15-65:9. Here, it is undisputed that there was no consent from former owner Vazzana. He testified that the Bliss family never sought, and was never provided, permission to use or occupy the Disputed Area. He testified that "this whole thing boils down to them taking some land that was ours, and that was wrong, they should have come and asked us about it." Tr. 384:1-4. When counsel for BCW directed Vazzana to the Disputed Area as shown on Exhibit 8, Vazzana testified "this is where they illegally took some land right over here." Tr. 391:8-15. He additionally testified to the fact that "they took [land] and said they cleared it out and used it," but that "[t]hey never got our approval, but they did it." Tr. 391:19-20. He reiterated "[s]omebody cleared this out. . . but they never asked us about it." Tr. 399:3-5. It is evident that the Bliss family's failure to ask Vazzana if they may use the Disputed Area demonstrates that they did not recognize or consider themselves subject to Vazzana's authority.

I find, based on the evidence, that the Bliss family occupied and used the Disputed Area (apart from the area around the maple tree as described above) adversely, openly, notoriously, exclusively, and continuously between 1985 and 2014, a period of more than twenty years. Twenty years from 1985 is 2005. Thus, the Trust has established title by adverse possession to this portion of the Disputed Area, title that ripened in 2005.

II. Trespass

The Trust has brought a claim of trespass against BCW and BCW has brought a claim of trespass against the Trust. An individual "who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest." Restatement (Second) of Torts § 163 (1965). Accordingly, one who intentionally enters another's land is liable even if he acted in good faith. United Elec. Light Co. v. Deliso Const. Co., 315 Mass. 313 , 318 (1943) ("There are many instances where a man acts honestly and in good faith, only to find that he was mistaken and had committed a trespass upon his neighbor's land."); Metropoulos v. MacPherson, 241 Mass. 491 , 503 (1922) ("The acts of the defendant although he honestly intended to place the posts and stringers on his own land were unlawful and he was a trespasser."). A plaintiff who proves that the defendant committed an intentional, unprivileged trespass to his real property is entitled to recover nominal damages, even if no actual damage is shown. Lawrence v. O'Neill, 317 Mass. 393 , 395 (1944); Metropoulos, 241 Mass. at 503.

To prevail in an action for trespass, the plaintiff must show that he or she had actual possession of the real property or a right to possession of the property at the time of the trespass. Fed. Nat'l Mortgage Ass'n v. Gordon, 91 Mass. App. Ct. 527 , 535-538 (2017); Attorney Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284 , 288 (1992). One is in possession of land if he or she (1) is in occupancy with intent to control the property, (2) was formerly in occupancy with intent to control if no other person has obtained possession, or (3) has the right to immediate occupancy if no other person is in possession. Restatement (Second) of Torts §157 (1965). "Possession of land may be acquired by one who is not by law entitled to it." Id. "A disseisor is a possessor from the moment that his occupancy begins, although as between himself and the true owner, he is not entitled to possession until his adverse possession has ripened into ownership by lapse of time." Id.

It is important to note, however, that "[o]ne is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor, or his land or chattels. . ." Restatement (Second) of Torts §197 (1965). Even with that privilege, that actor who entered upon another's land "is subject to liability for any harm done in the exercise of the privilege stated. . ." Id.

Bliss and her family began occupying the Disputed Area in 1985, and their adverse possession ripened into ownership 20 years later - in 2005. For this reason, Bliss's activity in the Disputed Area cannot be a trespass, as a matter of law. As for Bliss's entry onto BCW's property to retrieve her elderly dog from the brambles, that entry was privileged. She entered briefly to prevent harm to her dog and there was no evidence presented at trial that she "poison[ed] the well" by doing so. Bliss is not liable for trespass regarding the pile of mulch on BCW property because there is no evidence as to how the pile of mulch got onto the property, and as soon as Bliss saw the pile, she had it promptly removed by her landscaper. Tr. 82:1-17. BCW's claim of trespass against Bliss regarding the tampering with/removal of stakes or wetlands flags also fails, since there was no evidence presented at trial that Bliss or her surveyor had anything to do with their removal.

From 2005 on, Bliss, and later the Trust, has been entitled to bring a trespass action against any individual who enters the Disputed Area. Therefore, the Trust does have a valid trespass claim against BCW. Mr. Gattineri testified that he did enter the Disputed Area on June 9, 2017 with his lawnmower, and that he had done so on several other occasions since his purchase of the property in 2014. Tr. 491:10-25; 492:1-25; 493:1-5; 504:4-21. Additionally, Mr. Gattineri testified that he personally entered the Disputed Area and painted the orange stripes on Bliss's trees, and the paint remains to this day. Tr. 512:3-25; 513:1-10; View; Exh. 13, photo. 5-8. Since the Trust occupied the Disputed Area and had title to it, and Mr. Gattineri intentionally entered the Disputed Area without a right to do so, BCW is subject to liability to Bliss for a trespass. An injunction shall enter barring BCW from entering the Disputed Area.

The final question is damages. The Land Court has authority to award damages where the damages claim is ancillary to a claim related to right, title, or interest in land. Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 302 (2008). The Trust's trespass claim arises out of the parties' claim to title in the Disputed Area, making the Trust's damages claim ancillary to a claim of right, title or interest in land. I was presented no evidence of damage to the Bliss property from Mr. Gattineri's trespass, except for the paint on the trees. Any damage from his mowing was transient (grass grows back). The Trust claims as damage the cost of retaining a surveyor for the preparation of the Hancock plan, the court filing fee, and related process server fees. In support of this claim, the Trust points to the decision of the Superior Court in Camuso v. Tranxidis, 21 Mass. L. Reptr. 425, 2006 WL 2661263 (Mass. Super. Ct. Aug. 30, 2006). In Camuso, the Superior Court awarded as damages the cost of a survey and court costs for the defendants' trespass. In that case, however, there was no dispute that the plaintiffs held title to the portion of their property on which the defendants trespassed. Here, in contrast, the Trust's title to the Disputed Area was just that - disputed. The Hancock plan was required for the Trust to prove its adverse possession claim, for which it had the burden of proof. Thus, unlike the survey and court costs in Camuso, the cost of the Hancock plan is not harm proximately caused by Mr. Gattineri's trespass and the court costs were associated with the adverse possession claim. The only real damage caused by BCW's trespass is the paint on the trees, but there was no evidence of the amount of that damage; that is, the cost of removing the paint or the reduction in value to the trees from the paint. I am obligated, however, to award at least nominal damages for the trespass. Lawrence, 317 Mass. at 395; Metropoulos, 241 Mass. at 503. I award the Trust nominal damages in the amount of $100.00.

Conclusion

For the foregoing reasons, I find that the Trust is the owner of the larger part of the Disputed Area by adverse possession, and the true boundary line between the real property of Bliss and BCW is the easterly line of the Disputed Area shown on the Hancock plan, Trial Exhibit 8, as "Edge of Mowed Grass," extending towards the maple tree on the edge of Lowell Street, ending five feet before the maple tree. Within fourteen days of the date of this Decision, the Trust shall submit a revised plan showing the area to which the Trust has title under this Decision. BCW shall have fourteen days to respond to the revised plan, after which judgment shall enter (a) declaring that the Trust has title of the relevant portion of the Disputed Area by adverse possession, free and clear of any claims by BCW, (b) permanently enjoining BCW and its managers, members, officers, directors, agents, representatives, servants, employees, attorneys, and all persons acting in concert with them from entering the relevant portion of the Disputed Area, blocking the Trust's access to the relevant portion of the Disputed Area, or removing any of the trees located therein, (c) awarding the Trust damages in the amount of $100.00, with prejudgment interest calculated from the date of the filing of the verified complaint, and (d) dismissing BCW's counterclaim with prejudice.