R. BRUCE WHELTLE and SUSAN WHELTLE vs. JONATHAN NYBERG and SARA DOLAN

Evidently as part of a larger battle over the proposed development of a long-undeveloped lot next-door to their house on Coolidge Road in Arlington, the plaintiffs, R. Bruce Wheltle and Susan Wheltle, filed a verified complaint in the Land Court on October 27, 2017. In it, they make a claim for declaratory judgment pursuant to G. L. c. 231A, §1 that they have acquired title by adverse possession to several disputed slivers of land next to their home at 94 Coolidge Road, and they seek to quiet title to those slivers of land under G. L. c. 240, §§6-10.

The defendants, Jonathan Nyberg and Sara Dolan, filed an answer and counterclaim on December 7, 2017. They filed an amended counterclaim on February 18, 2018. Their counterclaims are for a prescriptive easement over any portion of the disputed walls that are found to have been acquired by the plaintiffs by adverse possession; for title by adverse possession to the land underneath the boulder walls on the record boundary line between the properties; for title by adverse possession to land between the record boundary and where the Wheltles have erected a railroad tie timber wall on their record property; and for title by adverse possession to a portion of land that lies between their record boundary line and a concrete block wall on the Wheltles' record property.

The complaint and the counterclaim thus initiated a pitched legal battle over literally every square inch of the disputed property, with the prize being the buildability or non-buildability of the Nyberg and Dolan property, as their property presently is unimproved and has just barely over the minimum lot frontage and lot area required for a buildable lot by the Arlington Zoning Bylaw.

Nyberg and Dolan filed an "anti-SLAPP" special motion to dismiss pursuant to G. L. c. 231, §59H on January 5, 2018. The court denied the motion on April 17, 2018. The Wheltles filed a motion to dismiss Nyberg and Dolan's amended counterclaims on March 12, 2018. The court denied the motion on June 11, 2018. I took a view on November 15, 2019. Trial was held on January 22, January 23, and January 24, 2020, in Boston. Following the submission of requests for findings of fact and rulings of law on March 12, 2020, and closing arguments, held by telephone [Note 1] on May 12, 2020, I took the matter under advisement.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. R. Bruce Wheltle and Susan Wheltle own and reside at the property located at 94 Coolidge Road in Arlington, identified as Lot 42 on a plan entitled "Plan of Lots Arlington, Mass. dated Oct. 1926 by C.H. Gannett C.E." and recorded at the Middlesex South District Registry of Deeds (the "Registry") on December 31, 1926 in Plan Book 388, Plan 4 ("1926 Gannett Plan"). [Note 2]

2. Jonathan Nyberg and Sarah Dolan own an unimproved parcel of land located on Coolidge Road in Arlington. Their property consists of all of the parcel identified as Lot 43 and a portion of the parcel identified as Lot 44 on the 1926 Gannett Plan. [Note 3] The property owned by Nyberg and Dolan abuts Lot 42, which is owned by the Wheltles. [Note 4]

3. Lots 42 and 43, among others, were formerly owned in common by Richard T. Irwin. [Note 5] On August 3, 1926, Irwin's widow Maria conveyed 12.5 acres of land, including what would later become Lots 42 and 43, to James H. Murray. [Note 6] The 1926 Gannett Plan was then recorded, showing road layouts and dividing the property into 45 numbered lots. [Note 7]

4. Thereafter, James Murray conveyed a one-half undivided interest in the forty-five lots to Clarence J. Owens. On September 27, 1927, Murray conveyed his remaining one-half interest in eighteen lots, including Lot 43, to Owens. [Note 8] On the same date, Owens conveyed his one-half interest in Lot 42 to Murray, thereby separating Lots 42 and 43 from common ownership as of September 27, 1927. [Note 9] They have remained in separate ownership since that date. [Note 10]

Wheltle Chain of Title

5. James Murray conveyed Lot 42 to Martin J. Kelly by deed dated July 17, 1929, and recorded with the Registry in Book 5377, Page 493. [Note 11]

6. On September 17, 1931, a building permit was issued enabling construction of a dwelling on Lot 42. [Note 12]

7. Martin Kelly conveyed Lot 42 and the buildings thereon to Edward and Eleanor Morrison by deed dated April 29, 1932, and recorded with the Registry in Book 5640, Page 448. [Note 13] I find that the construction of the house on Lot 42, then, must necessarily have been completed between the issuance of the building permit (September 1931) and the transfer of the land with buildings thereon to the Morrisons (April 1932). [Note 14]

8. Eleanor Morrison conveyed Lot 42 to Richard Belmont by deed dated August 23, 1963, and recorded with the Registry in Book 10342, Page 008. [Note 15]

9. Richard Belmont conveyed Lot 42 to Bruce and Susan Wheltle by quitclaim deed dated April 5, 1971, and recorded with the Registry in Book 11976, Page 619. [Note 16]

Nyberg/Dolan Chain of Title

10. Clarence Owens conveyed Lots 43, 44, 45, and 46 to Mary Owens by deed dated October 20, 1927, and recorded with the Registry in Book 5157, Page 241. [Note 17]

11. Mary Owens conveyed Lots 43, 44, 45, and 46 to Catherine MacDonald by deed dated May 27, 1931, and recorded with the Registry in Book 5562, Page 288. [Note 18]

12. Catherine MacDonald conveyed Lots 43, 44, 45, and 46 to Harry and May Stiles by deed dated July 20, 1934, and recorded with the Registry in Book 5839, Page 109. [Note 19]

13. Harry Stiles died in 1970, and upon the death of May Stiles on March 13, 1994, Lots 43, 44, 45, and 46 passed to Stephen Stiles, Harry and May's only child. [Note 20]

14. Stephen Stiles conveyed Lots 43, 44, 45, and 46 to Anne Stiles as sole trustee of Stiles Investment Trust by quitclaim deed dated September 20, 2007, and recorded with the Registry on September 25, 2007, in Book 50142, Page 149. [Note 21]

15. Lot 43 and Lot 44 were re-subdivided according to a plan of land entitled "Plan of Land in Arlington, MA," prepared by Clifford E. Rober dated November 24, 2009, and revised on July 24, 2012 ("Rober Survey Plan"). [Note 22] The subdivision altered the frontage and area of Lot 43, increasing its frontage along Coolidge Road from 50 feet to 60 feet, and increasing its area. [Note 23] The reconfigured lot, including all of former Lot 43 and a portion of the abutting land previously identified as Lot 44, is identified on the Rober Survey Plan as "Lot A." [Note 24] While Lot 43 was 5000 square feet in total lot size, Lot A is 6,035 square feet in area. [Note 25]

16. Tylden Dowell, successor trustee of the Stiles Investment Trust, conveyed Lot A, as shown on the Rober Survey Plan, to Nyberg and Dolan by quitclaim deed dated September 21, 2015, and recorded with the Registry on September 30, 2015 in Book 66161, Page 217. [Note 26]

The Properties

17. Lot A was created by a re-subdivision of Lots 43 and 44 in 2012. [Note 27] Prior to the re-subdivision of Lot 43, the abutting Lot 44, in common ownership with Lot 43, was improved by a single-family dwelling, with a side-yard between the house and the abutting property at Lot 42. [Note 28] The side yard of the house at Lot 44 included an extension of the yard in front of the house, with a lawn over part of the parcel, although much of the area between the house on Lot 44 and the house on Lot 42 remained wooded. [Note 29] The portions of present Lot A that had been improved by lawn while the Stiles family lived there became mostly overgrown.

18. Lot A remains a vacant, undeveloped parcel of land with 60 feet of frontage on Coolidge Road, and a total lot area of 6,035 square feet. [Note 30] The western portion of the lot, closest to Lot 42, is overgrown with forsythia bushes and other uncared for growth, especially closest to the front of the parcel nearest the street, and is wooded toward the rear. [Note 31] There are outcroppings of rock throughout the parcel. [Note 32] Both properties, Lot 42 and Lot A, slope downward from the street. [Note 33]

19. There are five walls on or in the immediate vicinity of the boundary between Lot 42, which is the Wheltle property, and Lot A, which is the Nyberg/Dolan property. There is a low brick wall in the public way parallel to the front lot line of Lot 42, which turns at a ninety degree angle toward the two subject properties at its northeastern end. [Note 34] There are four other walls running roughly contiguously along the boundary line between the two properties, running from front to back for nearly the entire length of the 100-foot long boundary: two contiguous walls constructed of piled and mortared boulders and stones; a concrete block wall; and a timber wall at the rear of the two properties. [Note 35] The Wheltles make adverse possession claims with respect to claimed encroachment of parts of the brick wall, the two boulder walls and the concrete block wall onto Lot A. Nyberg and Dolan claim adverse possession over a portion of Lot 42 in the vicinity of a portion of the concrete block wall and the timber wall on Lot 42, at the rear of the two properties. Findings with respect to each of these walls are made below.

The Brick Wall (Wall A)

20. The first wall at issue in this litigation is located on the front side of Lot 42, the Wheltle property, and is almost entirely within the right of way of Coolidge Road. [Note 36]

21. Richard Belmont, who owned Lot 42 from 1963 to 1971, erected the brick wall in 1964 or 1965, using bricks he had purchased after a Harvard University brick building was razed and its components sold. [Note 37] Belmont believed he was building the brick wall on his property, Lot 42, but it is actually located within the right of way of Coolidge Road, except for about two inches at the end of the wall, discussed below. [Note 38]

22. Stephen Stiles, then the owner of Lot 43, was aware that Belmont was building the brick wall, and even offered him advice on mixing cement and handed him a few bricks. [Note 39] (I do not credit Mr. Belmont's attempt at trial to contradict his earlier deposition testimony in this regard.)

23. This freestanding brick wall is about two-and-a-half to three feet high, and runs parallel to (and within) Coolidge Road. [Note 40] Just about at a projection of the boundary line between the two subject lots, but still in the public way, the wall makes a ninety degree return southeasterly and continues toward the front of Lot A and Lot 42 for less than three feet, where it crosses over the front boundary line of both properties for a depth of no more than about two inches. [Note 41]

24. A drill hole in the top brick at the end of the brick wall marks the boundary line between Lot 42 and Lot A. [Note 42] The drill hole was drilled into the brick in connection with a 2008 survey, and is shown on multiple plans of the area. [Note 43] With the drill hole accepted, as I so find, as marking the corner where the two lots meet the street right of way, the wall encroaches onto Lot A for a width of 0.52 feet, or about six inches, as measured from the drill hole northeast into Lot A, and by a depth from the street line of no more than about two inches. [Note 44] The total area of the encroachment is thus approximately twelve square inches, or 0.0833 square feet, one-twelfth of a square foot.

25. There are several overgrown forsythia bushes and other thick, unkempt vegetation present in the immediate area of the wall's return toward the front of Lot A - on both the Wheltle side of the return and the Lot A side of the return - which almost entirely obscure the return section of Wall A where it encroaches on Lot A in the warmer months. [Note 45] The area of the encroachment was somewhat obscured by the forsythia bushes even during my November view, notwithstanding the lack of summer foliage.

The First Mortared Boulder Wall (Wall B)

26. At the southeastern terminus of the brick wall, a low wall composed of mortared remnant stones and larger smooth stones begins. [Note 46] This wall extends southeasterly along the shared boundary line between Lot 42 and Lot A, varying in height between two and four feet, and makes a return toward the Wheltle house running parallel to the front facade of the house. [Note 47] This section of wall has decorative angular stones mortared into the top of the wall. [Note 48]

27. Wall B was in place when Richard Belmont purchased the property in 1963. [Note 49]

28. I do not credit the plaintiffs' assertion that Wall B, and the other mortared boulder wall along the property line, Wall C, were constructed at the same time or just before the house at 94 Coolidge Road was constructed in late 1931 and early 1932. Their theory (and it was little more than a theory) that these two walls were constructed to facilitate the construction of the house on Lot 42 is not borne out by the facts as I find them. Nor do I credit the plaintiffs' assertions that the ninety degree returns of Walls B and C toward the existing house on Lot 42 were constructed at the same time as the two boulder walls along the boundary line between Lot 42 and Lot A. The "return" sections of both of these walls, turning at a ninety degree angle and running perpendicular to the boundary line, may well have been added at the time the house was built, or, in the case of the rear, Wall C return, even later, when the rear porch was added or repaired. However, I find that neither of these returns were constructed at the time the original walls along the boundary line were built.

29. I find that at least the lower portions of both Wall B and Wall C, consisting of larger, rounder stones than the upper parts of the wall consisting of remnant stones, were built while Lots 42 and 43 were still in common ownership, that is, prior to September 27, 1927. I find unconvincing, and do not credit, plaintiffs' engineer's testimony that Walls B and C were built as retaining walls to contain fill on Lot 42 but served no purpose with respect to Lot 43 (Lot A). The construction of the two boulder walls, like other retaining walls, could have served either the purpose of leveling the higher ground on Lot 42 so as to facilitate the construction of a house, or the purpose of leveling the lower ground on Lot 43 for the same purpose; or, more than likely, it was for both purposes, and implemented by the common owners prior to the subdivision of the property in September, 1927 so as to create two buildable lots. [Note 50] The subdivision of the former Irwin farm into residential building lots was obviously the purpose of the 1926 Gannett subdivision plan, and I find that the construction of the two walls was more likely than not done at about the time of the preparation of the property for subdivision by James Murray and Clarence Owens in anticipation of their separation of ownership of the various lots and the sale of building lots. Accordingly, I find it more likely than not that at least the lower portions of the two boulder walls, consisting of rounder stones, were already in place at the time of the subdivision of the Irwin farm property by the recording of the 1926 Gannett Plan or the September 27, 1927 conveyance of the lots into separate ownership.

30. The upper portions of the two boulder walls, consisting of remnant stones, likely remnant stones from the construction of Coolidge Road, were more likely than not added at the time of or after the construction of Coolidge Road, which may have been at the same time the lower portions of the walls were built. The parties offered inconclusive evidence as to when that construction took place, [Note 51] but a 1930 aerial photograph requires a conclusion, as I find, that Coolidge Road was constructed prior to 1930. I do not credit the testimony of plaintiffs' engineer that the two boulder walls are not shown on the 1930 aerial photograph, as the engineer, eminently qualified as an engineer, was not qualified to offer expert testimony as a photogrammetrist, and as I do not find the 1930 aerial photograph to be conclusive as to the presence or absence of the two boulder walls. [Note 52]

31. Along the base of this first wall, on the side of the wall facing Lot A, there is a large boulder that is partly visible above ground and extends underground. [Note 53] At its widest point visible above ground, it extends nearly 1.8 feet from the boundary line into Lot A. [Note 54] I find, based on all the evidence, that this boulder was not deliberately placed in its current position as part of the construction of the wall, but rather was an existing natural topographical feature on top of which the wall was built.

The Second Mortared Boulder Wall (Wall C)

32. At the southeastern terminus of the first mortared boulder wall, a second section of mortared boulder wall begins. [Note 55] Like the first mortared boulder wall, it extends southeasterly along the shared boundary line between Lot 42 and Lot A, and is of varying height. [Note 56] Thereafter, it turns ninety degrees toward the southwest and continues toward the interior of Lot 42. [Note 57]

33. This section of boulder wall was also in place when Richard Belmont purchased the property in 1963. [Note 58] As was the case with the first mortared boulder wall, I do not credit the testimony of the plaintiffs' engineer opining that this wall was constructed to facilitate the construction of the house on Lot 42. I also do not credit the theory that the ninety-degree return section of this wall was built at the same time as the wall along the property boundary. [Note 59]

34. Along the base of this second portion of mortared boulder wall, on the side facing Lot A, there is another large boulder buried in the ground but partly visible above the ground. [Note 60] At its widest point visible above ground, it extends approximately 2.4 feet from the boundary line into Lot A. [Note 61] As with the protruding boulder at the base of Wall A, I find, based on all the evidence, and as informed by my view, that this boulder was not deliberately placed in its current position as part of the wall, but rather was an existing natural topographical feature on top of which the wall was built.

35. While he lived in the house on lot 42, Richard Belmont erected Lally column supports underneath a projecting second-story rear porch, to replace the stone structure that had been supporting the overhanging porch. [Note 62] The columns sat on top of a portion of stone boulder wall that extended from the porch toward Lot A and connected at a roughly right-angle to the second portion of mortared boulder wall along the property line between Lot 42 and Lot A. [Note 63] Again, I do not find that this section of the wall was built at the same time as the wall from which it extends at a ninety degree angle.

36. In 1971, Mr. Wheltle removed a cedar picket fence that previously stood on top of the mortared boulder wall, replacing it with eight wooden bucket posts, extending the length of Wall C, starting at the lower end of Wall B. Mr. Wheltle testified that he replaced a rotting picket fence that had been on the wall. I credit Mr. Wheltle's testimony that there had been a rotting cedar picket fence on top of the wall previously, but as there was no testimony as to its location on top of the wall, I find that there was insufficient evidence to conclude that the prior cedar picket fence encroached over the boundary line onto Lot A. [Note 64]

37. Mr. Wheltle testified that he placed the bucket posts "more or less to the outer edge" of the wall. [Note 65] I do not credit this testimony, as I find that the bucket posts that form the posts for the fence that ran along the top of Wall C from 1971 to 2010, and the fence itself, ran roughly along the centerline of the wall. This finding is based on the photographic evidence at trial as informed by my view. [Note 66] If anything, as the photographic evidence demonstrates, the bucket posts were placed haphazardly along the top of the wall and in some cases were clearly closer to the Lot 42 side of the wall than to the Lot A side of the wall.

The Concrete Block Wall (Wall D)

38. At the southeastern terminus of the second portion of the mortared boulder wall, about 72 feet back from Coolidge Road, a wall made of concrete blocks begins. [Note 67] The wall varies in height from about two to six feet. [Note 68]

39. Richard Belmont erected this wall in the mid-1960s, shortly after he installed the brick wall in the front of the house, for the purpose of regrading the steep slope of his backyard so as to make it more usable. [Note 69]

40. At its beginning point, the wall encroaches onto Lot A by 1.1 feet, measured from the boundary line into Lot A. [Note 70] The wall then extends towards the rear of Lot 42 for 24.5 feet. [Note 71] The wall travels roughly but not quite parallel to the record boundary line, and veers from Lot A into Lot 42, with its terminus entirely within Lot 42 and not encroaching into Lot A. [Note 72] The encroaching portion of the wall is triangular in shape, with the hypotenuse of the triangle lying along the record boundary line and extending approximately 17.5 feet. [Note 73] This triangular shaped area constitutes an encroachment of approximately 9.6 square feet. [Note 74]

41. Shortly after acquiring Lot 42 in 1971, Mr. Wheltle erected a wooden picket fence on top of the concrete block wall with four feet tall pickets. [Note 75] This fence was removed in stages, beginning in August of 2010, and is entirely absent from the property today. [Note 76]

The Timber Wall (Wall E)

42. At the southeastern terminus of the concrete block wall, a timber wall made of railroad ties begins. [Note 77] The wall extends back toward the rear of Lot 42 for about 15 feet, then makes a ninety degree return and travels toward the interior of Lot 42, parallel with that lot's rear boundary line. [Note 78] Wall E is approximately five feet high. [Note 79] This wall lies entirely within the record boundaries of Lot 42, and is set back from 0.8 to 1.5 feet from the property line with Lot A. [Note 80]

43. Mr. Wheltle installed this railroad tie wall in 1972 or 1973. [Note 81]

Use of the Properties

44. Various members of the Stiles family have lived in the house at 86 Coolidge Road, on Lot 44, abutting Lot 43, later Lot A, since 1934. [Note 82] From the late 1960s through the 1970s, the children of Stephen Stiles would play on the side of Lot A, including on the mortared stone walls on the boundary line with Lot 42. [Note 83] The children of Stephen Stiles, particularly Allan Stiles, would also help their father maintain Lot A in the 1970s and 1980s. [Note 84] Later, the children of Allan Stiles would also play on Lot A. [Note 85] Stephen Stiles maintained Lot A by mowing lawn areas, removing trash from the lot, raking leaves, and trimming trees. [Note 86]

45. Allan Stiles and his family lived at 86 Coolidge Road between 1999 and 2010. [Note 87] As had Stephen Stiles' children when they were younger, Allan Stiles' children also played on Lot A. [Note 88]

46. Allan Stiles would regularly trim trees and groom the lawn on Lot A while he lived at the house at 86 Coolidge Road between 1999 and 2010. [Note 89] Mr. Stiles sporadically raked the sliver of Lot 42 land lying between the record boundary line and Wall E, the railroad tie timber wall on the Wheltles' property. [Note 90]

47. Mr. Wheltle, at various times during his ownership of Lot 42, sporadically made repairs to the various walls and fences along the boundary line with Lot A, including repairs made on the Lot A side of the walls. [Note 91]

The Present Dispute

48. On March 1, 2013, an attorney for TGV, LLC, a company through which Douglas Stiles conducted real estate development, sent a letter to the Wheltles' attorney concerning the walls along the record boundary line between Lot 42 and Lot A. [Note 92] The letter stated that a structural engineer hired by TGV had found the walls to be in "poor condition," unstable, and "a safety hazard." [Note 93] The letter asked that the Wheltles repair the walls, and further advised that any intrusions onto Lot A by the Wheltles was a trespass. [Note 94]

49. I do not credit testimony that the total encroachment into Lot A of the several walls along the boundary amounts to 70 square feet. [Note 95] This encroachment calculation includes encroachments by the two mortared boulder walls, which I have found were not encroachments placed by a former owner of Lot 42. This calculation also includes the encroachment of two large partly in-ground boulders at the base of the mortared boulder walls. [Note 96] I have concluded, and so find, that there was insufficient evidence to find these two large boulders to be other than existing outcroppings over which Walls B and C were built. In fact, Lot A contains considerable outcroppings of ledge that were naturally present in the area. [Note 97] It is not likely that the builder of the mortared stone walls hauled the large in-ground boulders onto Lot 42, which varied in elevation, and placed them deep within the ground to form the base of the mortared stone walls. It is much more likely, and I so find, that those in-ground boulders were natural features of the landscape at whatever time the mortared boulder walls were built.

DISCUSSION

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The "necessary elements of such possession [include] the obligation to show that it was actual, open, continuous, and under a claim of right or title." Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The burden of proving each element falls upon the party claiming title by adverse possession. Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003). "The acts of the wrongdoer are to be construed strictly and 'the true owner is not to be barred of his right except upon clear proof.'" Tinker v. Bessel, 213 Mass. 74 , 76 (1912), quoting Cook v. Babcock, 65 Mass. 206 (1853). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004).

"An adverse possession claim requires that possession be 'actual' in nature, meaning that the possessor must be actually utilizing the land that he or she is claiming." Chew v. Kwiatkowski, 19 LCR 88 , 91 (Mass. Land Ct. 2011) (Trombly, J.). To prove actual use, the plaintiff "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.'" Id.

In looking to the extent of the claimant's acts upon the land, this showing of dominion and control is closely linked to the requirement that the use be likewise open and notorious. An open use is one undertaken 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). Put another way, "[t]he nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right[.]" Sea Pines Condo. III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 848. Acts under a claim of right are those undertaken "with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of every one else." Lawrence v. Town of Concord, supra, 439 Mass. at 421 n.5. [Note 98] "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.'" Id., quoting Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959).

The particular acts that would be consistent with ownership, as well as those sufficient to provide notice to the true owner, will vary depending on the features of the land in question, and the court must therefore consider the conjunction of "the nature of the occupancy in relation to the character of the land." Kendall v. Selvaggio, 413 Mass. 619 , 623-624 (1992). "Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city." LaChance v. First Nat'l Bank & Trust Co., 301 Mass. 488 , 490 (1938). "Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Kendall v. Selvaggio, supra, 413 Mass. at 624, quoting Parker v. Parker, 83 Mass. 245 , 247 (1861). "[T]he determination whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847.

I. THE WHELTLES HAVE NO STANDING TO ASSERT RIGHTS WITH RESPECT TO WALL A; FURTHERMORE, THE ENCROACHMENT OF WALL A ONTO LOT A IS DE MINIMIS, AND THE WHELTLES HAVE NOT SATISFIED THEIR BURDEN OF PROVING THE ENCROACHMENT WAS NOTORIOUS.

There are two notable characteristics of the brick wall at the front of the Wheltle property that are especially pertinent to the analysis of whether the Wheltles have met their burden of proving their claim of adverse possession. One is that the wall is almost entirely within the public way, not on the Wheltle property, and the other is that the encroachment onto Lot A is so small as to be de minimis, and hence, does not meet the "notorious" element of a claim of adverse possession.

A. The Wheltles Have No Standing to Assert Ownership by Adverse Possession of The Brick Wall Where It Encroaches Onto Lot A.

Mr. Belmont constructed this low wall in the early 1960s as a landscaping feature for his property. However, he constructed it almost entirely past his own front property line and well into the right of way of Coolidge Road. Only where the wall takes a ninety degree turn toward both Lot 42 and Lot A does it encroach onto either of these properties, and then only by about two inches of depth and for a width of about six inches onto Lot A. Thus, to the extent the wall constitutes an encroachment sufficiently open and notorious to place the owner of Lot A on notice, it places the owner on notice of an encroachment not from the Wheltle property, but from the public way. For this reason alone, the wall fails to constitute a qualifying open and notorious act of possession by the plaintiffs in this case. Unless the Wheltles have established their own adverse possession rights against the town of Arlington to ownership of the majority of the wall that lies within the public way, which they have not, they have no standing to assert rights of adverse possession against the owners of Lot A with respect to the part of the wall that encroaches from the public way onto Lot A. They have not proved, nor have they attempted to prove, their ownership of the wall at the point where it begins to encroach onto Lot A. Cf. Owens v. Buccheri, 89 Mass. App. Ct. 1115 (2016) (Rule 1:28 Decision) (plaintiffs were entitled to trespass damages against record owners because plaintiffs proved their title by adverse possession prior to the trespass, notwithstanding that they had not brought a court action). As the Wheltles have not proved ownership of the wall, nor asserted or proved ownership by adverse possession of the wall against the town, the Wheltles cannot assert a claim that belongs, if to anyone, to the town of Arlington.

B. The Wheltles Have Failed to Prove That the Encroachment of The Brick Wall Onto Lot A Was Notorious.

Even had the Wheltles established their ownership of the brick wall, and thus their standing to claim adverse possession based on its encroachment into Lot A, the encroachment fails to meet the requirement that it be both "open and notorious." As noted above, for an encroachment to satisfy the required element of proof that it be "notorious," "it must be sufficiently pronounced 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, supra, 68 Mass. App. Ct. at 44. The adverse claimant must be able to show that "the owner as an average man, if in the neighborhood, would have notice in fact of such possession." Sea Pines Condominium III Ass'n v. Mostyn, 21 Mass. L. Rptr. 156, *6 (Mass. Super. 2006), citing §15.3 American Law of Property (1952). Although it is immaterial whether the true owner has actual knowledge of the encroachment, the encroachment must nonetheless be "so open and notorious that it may be presumed to have been known to the rightful owner." Lawrence v. Town of Concord, supra, 439 Mass. at 420 (emphasis added). Additionally, the "extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Foot v. Bauman, 333 Mass. 214 , 218 (1955).

If an encroachment is de minimis, it may fail to be notorious for the purposes of adverse possession because it does not place the true owner of the land "on notice of any hostile activity of possession so that…the owner may have an opportunity to take steps to vindicate his rights by legal action." Ottavia v. Savarese, supra, 338 Mass. at 333. An encroachment that is truly de minimis is almost by definition not "sufficiently pronounced so as to be made known . . ." Boothroyd v. Bogartz, supra, 68 Mass. App. Ct. at 44.

An encroachment is de minimis if it is trivial in nature. Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 226 1999). Encroachments of a mere few inches can be de minimis encroachments. Id. at 227 (maximum building encroachment of 4.8 inches "trivial" and "de minimis"); Triulzi v. Costa, 296 Mass. 24 , 28 (1936) (bricks embedded into defendant's wall projected inches into plaintiff's wall were a de minimis encroachment); Tramonte v. Colarusso, 256 Mass. 299 , 301 (1926) (bulge of a building encroaching by one-eighth to one-quarter of an inch was a de minimis encroachment). Even an encroachment of a few feet can be considered de minimis in certain circumstances. Butterworth Water Co., v. Fortier, 18 LCR 413 , 414 (Mass. Land Court, 2010) (Long. J.) ("the 1.365 square foot corner of the [defendant's] garage which encroaches on the [plaintiff's] property is an exceptional, de minimis encroachment and as such need not be removed"); Blaustein v. Marmo, 14 LCR 509 , 513 (Mass. Land Court, 2006) (Lombardi, J.) (characterizing thirty-five square foot driveway encroachment as de minimis in size).

In the present case, the offending portion of Wall A encroaches onto Lot A by a total of approximately twelve square inches, or just one-twelfth of a square foot. The size of this encroachment alone is sufficiently trivial as to make it unreasonable to expect that an owner of Lot A, even an attentive one, would be on sufficient notice of the encroachment. Additionally, there was evidence at trial showing that during warmer months, this encroaching section of Wall A was largely hidden from view by dense plantings, including overgrown forsythia bushes that were abundantly evident on the view taken in this case. [Note 99] This evidence, which I credit, was supported by my observations on the view just prior to trial, in which extensive vegetation, even though lacking summertime foliage, crowded and obscured the encroaching end of the wall. Indeed, most of Lot A, in particular those parts closest to the end of the brick wall, has been well-populated by trees and bushes during all periods of ownership relevant to this case. A lot that is wooded will necessarily obscure certain encroachments from view, and for that reason, proof of adverse possession requires that the brick wall encroachment be more notorious than would be required if Lot A was cleared or otherwise improved. Here, I find that to the extent the brick wall encroached onto Lot A, the encroachment was so de minimis and otherwise obscured that it fails to satisfy the requirement that such encroachment be notorious. For that reason, consideration of the remaining elements of adverse possession is unnecessary with respect to the brick wall, Wall A, and the adverse possession claim relating to this section of wall fails. [Note 100]

II. THE WHELTLES HAVE NOT DEMONSTRATED WHO BUILT WALLS B AND C, FAILING TO MEET THEIR BURDEN OF PROVING ADVERSITY.

Without proof of who built the two mortared boulder walls, Walls B and C (and precisely when), the Wheltles cannot establish that they have ever, in fact, "possessed" part of Lot A by the encroachment of these walls onto Lot A. The evidence at trial established that Lot 42 and Lot 43, from which Lot A was reconfigured, were once held in common ownership, by Richard T. Irwin, Mary Irwin, and later by James Murray and Clarence Owens, who were together obviously facilitating the subdivision of the larger parcel into residential building lots. It is likely, as I have found, that Murray and Owens, in conjunction with their plans for subdivision and sale of the property as building lots, constructed the two boulder walls so as to level Lot 42 and Lot 43 so that each would be a suitable building lot, not just by frontage and area, but also by grade. Based on the evidence before me I find this to be the more likely origin of the boulder walls than that postulated by the plaintiffs, which postulation I do not credit.

Since, as I have found, the two boulder walls were built during the period when the lots were in common ownership, no adversity of possession could be possible where a single owner owned all of the land underneath and on either side of the walls. See Peavey v. Moran, 256 Mass. 311 , 316 (1926) (court held that a fence placed on the land of a common owner could not form the basis of a later adverse possession claim after the property had been subdivided, stating, "It is plain that a person cannot hold land adversely to himself."). Although the Wheltles may have considered the walls to be their own, they did not prove that their predecessors put the walls there adversely, at any time when the area was not held in common ownership. The Wheltles have thus failed to meet their burden of proving the adversity of their possession of the walls, and in fact have simply succeeded to the ownership of those portions of these two walls on their side of the property line.

Furthermore, I do not credit that any conduct of any owner of Lot 42 after the separation of ownership from Lot 43, including Richard Belmont, while he owned the property, or the Wheltles, after they purchased Lot 42 in 1971, served to exclude the Stiles family or Nyberg and Dolan from the portions of the boulder walls built on what is now Lot A. The two mortared boulder walls, straddling the boundary between the two properties, were a feature of both properties, and did not represent an adverse occupation of either property by the owner of the other. Neither maintenance of the walls, whether sporadic or regular, nor the placement of loose stones or rudimentary fencing on top of and roughly along the centerline of either wall was activity sufficient to place the owner of Lot 43, or later Lot A, on notice of an act of possession or assertion of ownership over the portions of the walls on Lot 43, later Lot A. In particular, as I have found that the fencing placed by Mr. Wheltle along the top of (mostly) Wall C ran roughly down the centerline of the wall (and not, as Mr. Wheltle testified, along the outside, Lot A, edge of the wall), and therefore ran along the property line, the fencing did not encroach onto Lot A. To the extent Mr. Wheltle entered onto Lot A to conduct any maintenance of the walls, the plaintiffs have failed to prove that any such activity was other than sporadic, and the appearance of the walls does not speak to any consistent pattern of maintenance, as the walls, while they may be structurally sound, do not appear well-maintained.

There was testimony to the effect that the returns of these two walls into Lot 42, at the front and rear of the house that was built on the property in or about 1931 or 1932, were already built at the time the house was built or were built to facilitate the construction of the house. This testimony was speculative at best, and in any case is not helpful in determining whether the main parts of the walls along the boundary between the two properties were built while the two lots were still in common ownership. I do not credit this testimony as supporting or establishing a conclusion that the walls were built by an owner of Lot 42 in a manner that caused them to encroach on Lot 43 when it was in separate ownership.

Because the Wheltles have the burden of proof on this issue, their failure to prove that Walls B and C were constructed by a prior owner of Lot 42 after its separation from ownership with Lot 43 is fatal to their claim of adverse possession as it relates to the two mortared boulder walls.

Having determined that the Wheltles failed to satisfy their burden on this issue, it is unnecessary to assess whether Nyberg and Dolan have proved their counterclaim of ownership of this disputed area along Walls B and C by adverse possession.

III. THE WHELTLES HAVE SATISFIED THEIR BURDEN OF PROVING ADVERSE POSSESSION FOR THE PORTION OF WALL D THAT ENCROACHES ONTO LOT A.

At trial, Richard Belmont credibly testified that he installed the concrete block wall, Wall D, for the purpose of creating a flat backyard area on his property. He built Wall D around the time he built the brick wall, Wall A, in the front of Lot A, in 1964 or 1965. Although Mr. Belmont believed he was erecting the wall along his property line, a portion of it was, in fact, built on Lot A, over the boundary line between the properties. Mr. Belmont sold the property to the Wheltles in 1971. Tacking would enable the Wheltles to count the time of Mr. Belmont's ownership of Lot 42 toward their own adverse possession period, but tacking is not in fact necessary in this case.

The Wheltles have been in actual possession of the concrete wall, which, unlike Walls B and C, was built in a manner that resulted in it partially encroaching onto the separately-owned Lot 43 portion of what is now Lot A, since they bought the property in 1971, some 49 years ago - and this fact is undisputed. This is well over the twenty-year period required. The encroachment is open and notorious, at one point extending over the boundary line into Lot A by 1.1 feet, with a total length of the encroachment of 17.5 feet, and a total area of encroachment of 9.6 square feet. The encroachment is small, but is not so small as to be trivial - it would be noticeable to a record owner who was paying reasonable attention. Additionally, the encroachment was exclusive. The Stiles family members who testified to playing on Lot A variously referenced play activity on the mortared boulder walls, but not on this concrete block wall. [Note 101] Any play near - but not on - the concrete block wall would not be sufficient to overcome the exclusivity of Mr. Belmont's and the Wheltles' possession of the wall. Finally, the possession was adverse, an assertion of ownership over a piece of Lot A, of which the Wheltles were not the record owners. The Wheltles have successfully met their burden of proving adverse possession with respect to the portion of Wall D that encroaches onto Lot A. The encroachment, shown on Exhibit 1 and Chalk "A," is 17.5 feet in length, is triangular, with the record property line forming the hypotenuse of the triangle, and the width of the triangle ranging from 1.1 feet at its northwestern end to 0.1 feet at its southeastern end, with an area of 9.6 square feet. [Note 102]

IV. NYBERG AND DOLAN HAVE NOT PRODUCED SUFFICIENT EVIDENCE TO DEMONSTRATE OPEN AND NOTORIOUS, CONTINUOUS, EXCLUSIVE, ADVERSE USE OF THE PROPERTY BETWEEN WALLS D AND E AND THE RECORD BOUNDARY LINE.

There was limited evidence at trial of how Nyberg and Dolan's predecessors used the sliver of land between the railroad tie timber wall, Wall E, and the sliver of land between the concrete block wall, Wall D, on the Wheltle property, and the common boundary line between Lot 42 and Lot A. The only evidence offered on this issue was testimony by Allan Stiles and his brother Geoffrey Stiles. Allan Stiles testified that when he lived in the house next to Lot A, at 86 Coolidge Road, he would periodically rake Lot A, including the small disputed area adjacent to Wall D and Wall E. He would do maintenance of this area next to the timber wall only about "every other year." [Note 103] Similarly, Geoffrey Stiles testified that he recalled his father or someone else raking leaves in that area. [Note 104] Geoffrey Stiles did not himself conduct any raking in this area while he lived at 86 Coolidge Road or afterwards when he and his family visited. [Note 105]

This limited and irregular - at best, sporadic - entry into the disputed area to rake is inconsistent with the manner in which a record owner would treat his own property. The raking was not consistent or continuous and was performed very infrequently. Neither was the raking conducted frequently enough to be considered open and notorious behavior. This type of activity was too intermittent and sporadic to succeed on an adverse possession claim, and therefore Nyberg and Dolan's counterclaim for title to this disputed strip of land between the record boundary line and Wall D and Wall E fails.

CONCLUSION

For the reasons stated above, the Wheltles have not satisfied their burden of proving ownership by adverse possession of the land under which Walls A, B, and C encroach onto Lot A, but they have proved their ownership of the land under the portion of Wall D that encroaches onto Lot A, and are entitled to a declaratory judgment to that effect. Nyberg and Dolan have not met their burden of proving ownership by adverse possession of the sliver of land between the record boundary line and the timber wall and concrete block wall on Lot 42.

A judgment will issue declaring the rights of the parties, and in particular, declaring that the Wheltles have established their ownership by adverse possession to that portion of Lot A shown on Exhibit 1 as an encroachment of Wall D onto Lot A for a length of 17.5 feet and a depth ranging from 0.1 feet to 1.1 feet, with an area of approximately 9.6 square feet; quieting title of Nyberg and Dolan to the rest of the claimed areas of encroachment, and declaring that except as otherwise provided in this decision, the parties' respective ownership in the two boulder walls, Walls B and C, extends to the record boundary line between Lot 42 and Lot A. The judgment will not provide for any easement rights of the parties with respect to those portions of the two boulder walls on the land of the other parties, nor will it provide for any easement for the Wheltles to enter onto Lot A for the purpose of maintenance of Wall D or any other wall.

There is no occasion for application of the derelict fee statute, G. L. c. 183, §58, as the September, 1927 conveyances of Lots 42 and 43 from common ownership were simultaneous, with Murray and Owens conveying their entire interests to each other in the abutting lots. See Boston College v. Boston Academy of the Sacred Heart, Inc., 16 Misc. 000360 (Mass. Land Ct. 2019), Decision on Cross-Motions for Summary Judgment, p. 8. Similarly, the parties are not entitled to easements, by necessity or otherwise, over those portions of the walls that lie on the abutting property. See McDonald v. Andrade, 97 Mass. App. Ct. 1112 , April 22, 2020 (Rule 1:28 Decision) (successful adverse possession claim with respect to shed on neighbor's property did not entitle plaintiff to easement by necessity to area around shed for maintenance purposes).

Prior to the entry of judgment, the Wheltles are ORDERED to submit to the court, within thirty days of the date of this decision, a stamped plan, in size and format suitable for attachment as an exhibit to the judgment, showing the encroachment of the concrete block wall, Wall D, onto Lot A, and including the dimensions and area of the encroachment. The plan shall be submitted to the defendants prior to submission to the court, and if the parties are unable to agree on the accuracy of the plan, the parties are to so inform the court and a hearing will be held on the suitability of the plan.