JERALD L. GOLDMAN and JULIA F. GOLDMAN, Plaintiffs, v. ALEXANDER WHITE, DEFENDANT

INTRODUCTION

Plaintiffs Jerald A. Goldman and Julia F. Goldman ("the Goldmans") commenced this action on November 14, 2018 with the filing of a complaint ("the Complaint") regarding the ownership of a strip of land two to three feet wide ("the Disputed Area") between their property at 61 Ruane Road, West Newton ("the Goldman Property") and that of their neighbor, defendant Alexander C. White ("Dr. White"), at 69 Ruane Road, West Newton ("the White Property"). The Goldmans sought a declaratory judgment that the Disputed Area was within the deeded boundaries of the Goldman Property or, alternatively, that the Goldmans held title to the Disputed Area by virtue of their adverse possession of the same for over twenty years. The Complaint also asserted a claim to quiet title pursuant to G. L. c. 240, § 6 et seq. In response, Dr. White asserted a counterclaim alleging trespass by the Goldmans onto the White Property.

After the conclusion of discovery, Dr. White filed a motion for summary judgment in which he argued (1) that there was no dispute as to the boundary between the Goldman Property and the White Property, three formal surveys all confirming that the Disputed Area is part of the White Property; and (2) that, on the undisputed facts, the Goldmans could not establish two elements of their adverse possession claim: that their use of the Disputed Area was adverse, i.e., non-permissive, or that their use was exclusive. At the hearing on Dr. White's motion, the Goldmans acknowledged that the boundary line between the two properties was no longer in dispute and that the Disputed Area is within the boundaries of the White Property. [Note 1] While the Goldmans argued that there were genuine issues of material fact requiring a trial, the balance of their opposition was devoted to the proposition that, on the undisputed facts, the Goldmans had established actual, open and notorious, exclusive and adverse use for the requisite twenty years. For the reasons set forth below, this court ALLOWS Dr. White's motion for summary judgment.

UNDISPUTED FACTS

The following facts established in the record and pertinent to the motion and cross motion for summary judgment are undisputed or are deemed admitted.

1. The Goldmans own and reside at the Goldman Property. Statement Of Material Facts & Responses And Additional Statement Of Material Facts ("SOMF") at ¶ 1.

2. Dr. White owns and resides at the White Property. SOMF ¶ 2.

3. The Goldmans acquired the Goldman Property by deed from Roger S. Goldstein and Barbara M. Goldstein, recorded at the Middlesex County Registry of Deeds ("the Registry") on August 26, 1997. SOMF ¶ 3; Appendix ("App.") at 1 (Verified Complaint Ex. A).

4. Dr. White has held title to the White Property since 2007. SOMF ¶ 4.

5. The Goldman Property and the White Property abut and share a boundary, with the White Property to the west and the Goldman Property to the east of the common boundary line. SOMF ¶ 5.

6. The Disputed Area is along this common boundary and is two to three feet wide, extending and widening from the property line at the front sidewalk to the rear property line. See SOMF ¶ 10.

7. The parties dispute whether Mr. Goldman requested permission of Dr. White to trim hedges on the White Property in 2007, shortly after Dr. White moved in, and whether Dr. White gave Mr. Goldman that permission. SOMF ¶ 14.

8. In 2016, after Dr. White built an addition on his home, the Goldmans erected a section of fence along the boundary and within the boundaries of the Disputed Area. App. at 3 (Affidavit Of Alexander White, sworn to on November 21, 2018 ("White Aff."), Ex. C (Sketch Showing Lot Line Marking Date: Aug. 13, 2018 Scale: 1" = 20' Anderson Surveys, Inc. Professional Land Surveyors 800 High Street Hanson, MA 02341-0149) ("Anderson Plan")). [Note 2]

9. Dr. White told Mr. Goldman that the fence was on the White Property and asked that he move it, but Mr. Goldman refused to do so. App. at 3 (White Aff. ¶ 11).

10. According to Dr. White, "since it was a relatively small piece of fence close to the property line, although on our side of it, I did not fight with [Mr. Goldman] over this." Id.

11. Dr. White then engaged a surveyor in the summer of 2016 to survey the boundary line between the two properties. Id. at ¶ 12.

12. After its completion, Dr. White shared the survey with the Goldmans, who disputed its results. Id. at ¶ 15.

13. Mr. Goldman repeatedly pulled out the survey stakes placed by the surveyor. Id. at ¶ 18.

14. In 2017, Dr. White informed the Goldmans that he and his wife were considering removing the hedges, replacing them with a fence. Id. at ¶ 19.

15. Thereafter, the Goldmans engaged Arnold Friedfertig, Esq. ("Mr. Friedfertig") to represent them with respect to this matter. Id.

16. In May 2017, Mr. Friedfertig wrote to the White's lawyer, Leonard M. Davidson, Esq. ("Mr. Davidson"), asserting a claim for adverse possession of the Disputed Area. SOMF ¶ 19.

17. In that letter, Mr. Friedfertig stated "I am notifying you that my clients are confident that both the hedges and the fence are located on their property. In the alternative, the hedges have become their property by virtue of adverse possession due to the fact that they, and their predecessors in title, initially planted and have maintained this row of hedges for more than 40 continuous years." App. at 5 (Affidavit Of Leonard M. Davidson, sworn to on November 26, 2018 ("Davidson Aff."), Ex. A).

18. Mr. Friedfertig further stated: "If you are unwilling to agree to try to work this out amicably, then I will go to court and get a Restraining Order until this is rectified. … If I do not get assurance from you by Wednesday, May 3, 2017, that you will cease and desist from any activity until an agreement is reached, I will proceed with the Restraining Order and other court action." Id.

19. In response, Mr. Davidson informed Mr. Friedfertig by email that Dr. White granted the Goldmans permission to use the Disputed Area but that such permission was revocable at will. SOMF ¶ 20.

20. Among other things, Mr. Davidson stated in that same May 25, 2017 email: "My clients own the bushes and trees on their side of the boundary line. So they can indeed allow your clients to step foot on their property and trim the trees/hedges. And so that there is no doubt as to permissive usage, we will hereby as of this date grant your clients the limited permission to access our clients' property to trim the hedges and trees as your clients have been doing (which is not what their predecessors did)." App. at 5 (Davidson Aff. Ex. B).

21. In mid-2017, Dr. White and the Goldmans met to discuss their boundary dispute. The parties dispute whether, at that meeting, Dr. White told the Goldmans that their use of the Disputed Area was permissive. SOMF ¶ 21.

22. Because Mr. Goldman continued to question the boundary line and asserted that Dr. White's 2016 survey was wrong, Dr. White offered to have another surveyor survey the boundary line. App. at 3 (White Aff. ¶ 24).

23. The Goldmans received a letter from Dr. White dated August 17, 2017, SOMF ¶ 22, in which Dr. White stated, among other things: "In the meantime, and as my lawyer communicated previously to your lawyer on your behalf, you continue to have our permission to enter upon our property in the disputed area to cut the lawn and to trim the trees/shrubs as you have been doing. Please understand that this permission is revocable at any time." App. at 3 (White Aff. Ex. B).

24. The Goldmans' predecessor in title, Ms. Barbara Sidel (formerly Barbara Goldstein), denied that she and her husband used the Disputed Area when they owned the Goldman Property and confirmed that the tree and hedge along the boundary between the Goldman Property and the White Property were planted by Dr. White's predecessor in title. [Note 3] SOMF ¶¶ 25-26; App. at 4 (Affidavit Of Barbara Sidel, sworn to on May 16, 2017).

25. While Dr. White affirms that he has also trimmed the same hedges, trees and lawn in the Disputed Area, the Goldmans have not observed him do so. SOMF ¶ 27.

26. The record contains three survey plans: (1) the Anderson Plan; (2) a plan entitled "Plan Of Land In Newton, MA 69 Ruane Road Prepared For: Alex White Scale: 1 IN. = 20 FT. Date July 14, 2016 Everett M. Brooks Co. Surveyors & Engineers 49 Lexington Street West Newton, MA 02465," App. at 1 (Verified Complaint Ex. D); and (3) a plan entitled "Site Plan Of Land In Newton, MA 61 Ruane Road Scale 1 IN. = 20 FT Date: October 25, 2007 Everett M. Brooks Co. Surveyors & Engineers 49 Lexington Street West Newton, MA 02465," App. at 1 (Verified Complaint Ex. F).

27. All three plans show the hedge and tree at issue in this litigation on the White Property, and the two plans created after the Goldmans placed a fence within the Disputed Area show the fence on or over the boundary line onto the White Property. Id.

28. The record also contains a Joint Site Visit Report with attached photographs dated December 6, 2018 ("the Report"). App. at 7.

29. Exhibit 1 to the Report consists of two photographs taken at ground level from the front of the two lots with the boundary line between the Goldman Property and the White Property shown by an orange string. Id.

30. There is no discernable difference between the lawn of the White Property, the Disputed Area, and the Goldman Property.

31. Exhibit 4 to the Report is a photograph taken from the Goldman Property facing toward the front of the two lots with the boundary line between the Goldman Property and the White Property shown by an orange string. Id.

32. The hedge, the fence and the tree at issue here are all on the White Property and the distance between the boundary line and the hedge is de minimis.

33. For more than twenty years, Mr. Goldman has regularly mowed, seeded, weeded and fertilized the lawn in the Disputed Area. SOMF ¶ 62.

34. For more than twenty years, Mr. Goldman has trimmed, pruned, watered and otherwise cared for the hedge in the Disputed Area. SOMF ¶ 63.

35. For more than twenty years, Mr. Goldman trimmed and otherwise cared for an evergreen tree in the Disputed Area. SOMF ¶ 64.

36. For more than twenty years, beginning in August 1997, the Goldmans maintained plants in the Disputed Area abutting the fence and the hedge. SOMF ¶¶ 65-66.

37. Since acquiring the Goldman Property, the Goldmans have understood and believed that they owned the Disputed Area. SOMF ¶ 67.

STANDARD OF REVIEW

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission … together with the affidavits … show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). A party "moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

DISCUSSION

In his motion, insofar as it is directed to the Goldmans' adverse possession claim, Dr. White argues that the claim fails because the Goldmans' possession falls short of twenty years, the usage having become permissive during the Goldmans' possession, and because their possession was not exclusive. In response, the Goldmans assert that their use meets all the criteria for adverse possession: they actually used the area, conducting regular lawn maintenance; their use was sufficiently open and notorious to put the true owner on notice; their use was exclusive and adverse; their use was non-permissive; and their use continued for more than twenty years. On the undisputed facts in this record, it is clear that the Goldmans have met the twenty-year requirement. However, the Goldmans are unable to carry their burden of proof establishing that their use was exclusive.

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992), which in turn quotes Ryan v. Stavros, 348 Mass. 251 , 262 (1964). "The burden of proving adverse possession is on the person claiming title thereby and 'extends to all of the necessary elements of such possession.'" Id., quoting Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968), which in turn quotes Holmes v. Johnson, 324 Mass. 450 , 453 (1949).

Turning to Dr. White's first argument, he contends that the Goldmans cannot establish twenty years of prescriptive use because they cannot tack to their predecessor, Ms. Sidel, who denies using the Disputed Area prior to the August 1997 conveyance to the Goldmans, and because Dr. White's grant of permission in 2007 and again in 2017 interrupted the Goldmans' use. There is no dispute, based on the admissible evidence, see note 3, supra, that Ms. Sidel and her then-husband did not use the Disputed Area. However, Dr. White's grants of permission, even assuming the 2007 grant to be undisputed, did not operate to interrupt the Goldmans' possession.

The Restatement (First) of Property, § 459, which has been cited approvingly by the Supreme Judicial Court, see Mahoney v. Heebner, 343 Mass. 770 (1961), is on point. That section provides:

§ 459. Continuous And Uninterrupted Adverse Use.

(1) An adverse use is continuous when it is made without a break in the essential attitude of mind required for an adverse use.

(2) An adverse use is uninterrupted when those against whom the use is adverse do not

(a) Bring and pursue to judgment legal proceedings in which the use is determined to be without legal justification, or

(b) Cause a cessation of the use without the aid of legal proceedings.

Comment c to § 459 provides that, "[i]f the interruption is produced by an act not involving a judicial determination, the act must be intended to cause and must be of such a character as actually to cause a cessation of use."

Pugatch v. Stoloff, 41 Mass. App. Ct. 536 (1996), cited by the Goldmans, is of similar import. There, as to an area of yard claimed by the defendants, the trial court determined that the defendants' possession was interrupted short of twenty years by virtue of the owner's staking the corners of the lot, applying for a building permit for the lot, taking steps preparatory to construction including in parts of the disputed area, and telling the defendants that his construction was likely to disrupt the defendants' landscaping. Id. at 541. The Appeals Court reversed, stating that "[t]o stop the running of the statute, the owner's entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption." Id. at 541-542. "It is well recognized that the running of the statute is interrupted by the owner's entry on the land, if, and only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession." Id. at 543, quoting 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975). The few exceptions to physical reentry, according to the Appeals Court, include filing a petition to register land or a complaint to establish title to land, citing McMullen v. Porch, 286 Mass. 383 , 388 (1934), and tax takings of the land, citing Sandwich v. Quirk, 409 Mass. 380 , 383 (1991), cert. denied, 502 U.S. 814 (1991). Id. at 542 n.8. After its review of the case law, the Pugatch court summarized that law as follows:

The cases suggest that the Stoloffs' adverse possession might have been interrupted by (a) driving a line of marked posts in the yard designating the boundary line, Simmons v. Inhabitants of Nahant, 85 Mass. (3 Allen) 316, 317; (b) connecting the corner stakes with a string, and posting a sign, Pierce v. Austin, 651 S.W.2d at 162-163; (c) obtaining the Stoloffs' signature on a letter acknowledging the true boundary line and their permissive use of the portion of their yard on the Pugatch side of the line, Van Allen v. Sweet, 239 Mass. at 574; or (d) commencing a legal action to establish title, see note 8, supra.

Id. at 544 n.10.

Here, according to the undisputed evidence, the Goldmans commenced their possession of the Disputed Area when they took title to the Goldman Property in August 1997. As a result, in order to interrupt the running of the statute, Dr. White's options were to commence litigation or to effect a reentry and stop the Goldmans' use within twenty years of that date. Instead, Dr. White allowed the Goldmans' fence to remain on the White Property unchallenged in any meaningful way in 2016 and purported to give the Goldmans permission to use the Disputed Area in 2017, without receiving any acknowledgment from them of Dr. White's superior interest in that land. Notably, Dr. White did not commence litigation (this lawsuit was commenced by the Goldmans in 2018) and did not take actions to physically exclude the Goldmans from the Disputed Area. As a result, by August 2017, the Goldmans had the requisite twenty years of uninterrupted use, assuming the other elements of adverse possession were satisfied.

Dr. White also claims that the Goldmans cannot establish that their use was exclusive. He is on firmer ground here. To be exclusive, "[s]uch use must encompass a 'disseisin' of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993) (citations omitted). Accord Brandao v. Docanto, 80 Mass. App. Ct. 151 , 158 (2011) ("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.'"), quoting Peck, 34 Mass. App. Ct. at 557. "Acts of enclosure or cultivation are evidence of exclusive possession." Labounty v. Vickers, 352 Mass. 337 , 349 (1967). "[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).

Here, Dr. White avers that he also trimmed the hedges and mowed the lawn in the Disputed Area. In response, the Goldmans can only say that they did not see him do so, not that he did not, in fact, do so. [Note 4] Their difficulty arises at least in part from the fact that there was nothing to prevent Dr. White or others from freely entering the Disputed Area. As noted in this court's findings of fact, there is no discernable difference, and certainly no barrier, between Dr. White's lawn, the Disputed Area lawn and the Goldmans' lawn until one reaches the hedge, on the White Property, which provides a barrier between the two parcels. There is no act of enclosure or cultivation evidencing exclusive possession. As the Goldmans carry the burden of proof on this issue at trial, more is required of them to establish their exclusive possession. [Note 5]

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, Defendant Alexander White's Motion for Summary Judgment is ALLOWED. Judgment shall enter on Count I of the Complaint declaring that the boundary line between the White Property and the Goldman Property is as shown on the Anderson Plan and dismissing Counts II and III with prejudice. Judgment shall enter on the Counterclaim ordering that the Goldmans remove the fence that they erected on the White Property within ten days of the issuance of the judgment.

SO ORDERED.