MISC 19-000418

August 7, 2020

Suffolk, ss.




This action was commenced by pro se plaintiff Richard Gargiulo ("Mr. Gargiulo") with the filing of his complaint ("the Complaint") on August 29, 2019 against defendant Elida Sanchez ("Ms. Sanchez") [Note 1]. In the Complaint, Mr. Gargiulo seeks a declaratory judgment that two large oak trees ("the Oak Trees") are located on both his property and Ms. Sanchez's property and not solely on Ms. Sanchez's property, with the result that, according to Mr. Gargiulo, Ms. Sanchez cannot remove the Oak Trees without Mr. Gargiulo's permission. Mr. Gargiulo seeks an order from this court barring Ms. Sanchez from removing the Oak Trees.

On December 4, 2019, Ms. Sanchez filed her answer denying Mr. Gargiulo's claims and filed counterclaims seeking: (i) damages for trespass to land, based on Mr. Gargiulo's installment of a fence ("the Fence"), a portion of which allegedly encroaches on her property; (ii) to quiet title to her property under G.L. c. 240, §1; (iii) a declaratory judgment adjudicating the boundary line between the parties' properties; and (iv) an action for ejectment addressed to the existence of Mr. Gargiulo's Fence on her property.

On February 26, 2020, Ms. Sanchez filed Defendant's Motion For Summary Judgment and supporting pleadings ("the Summary Judgment Motion"). The court, upon motion, granted Mr. Gargiulo an extension of 30 days, to which the court added an additional 30 days, for a total of 60 days, to file his opposition. At defendant's request, the court issued an order on March 27, 2020 that Mr. Gargiulo would not be granted any further extensions absent extraordinary circumstances. After the close of business on May 27, 2020, the day that Mr. Gargiulo's opposition was due, Mr. Gargiulo filed Plaintiff's Motion For Continuance (30 Days) and Plaintiff's Reply To Defendant's Motion For Summary Judgment, which was itself a request for a continuance, not an opposition to the Summary Judgment Motion. Mr. Gargiulo's motions were denied. On July 14, 2020, the court held a dispositive motion hearing by telephone. For the reasons stated on the record at that hearing and as set forth below, Ms. Sanchez's Summary Judgment Motion is ALLOWED.


The following facts established in the record and pertinent to the Summary Judgment Motion are undisputed or are deemed admitted.

1. Mr. Gargiulo owns and resides at 29 Dell Avenue, Boston, Massachusetts ("the Gargiulo Property"). See deed from Daniel R. Hofmann and Ana E. Hofmann to Richard Gargiulo and Olive Gargiulo, dated November 27, 2013 and recorded with the Suffolk County Registry of Deeds ("the Registry") at Book 52431, Page 104. Statement Of Undisputed Material Facts Relating To Defendant's Motion For Summary Judgment ("SUMF") ¶ 1.

2. Ms. Sanchez owns and resides at 31 Dell Avenue, Boston, Massachusetts ("the Sanchez Property"). See deed from Gilma M. Cruz to Elida Sanchez, dated April 2, 2014 and recorded with the Registry at Book 52876, Page 31. SUMF ¶ 2.

3. The Gargiulo Property and the Sanchez Property directly abut each other and share a property line ("the Property Line"). SUMF ¶ 3.

4. The court held a Status Conference on this matter on December 16, 2019, at which Mr. Gargiulo submitted to the court a surveyor's plot plan prepared by Dennis O'Brien Land Surveying ("the Plan") on his behalf, which plan depicts the Gargiulo Property and the Sanchez Property. See D. App., Ex. 2.

5. The Plan depicts, and Mr. Gargiulo admitted both at the December 16, 2019 Status Conference and at the July 14, 2020 hearing, that a portion his Fence crosses the Property Line and encroaches upon the Sanchez Property. Id.

6. The Plan also depicts the trunks of the Oak Trees in relation to the Property Line and shows them to be entirely on the Sanchez Property. Id.


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 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). "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).


The Oak Trees

In his Complaint, Mr. Gargiulo asserts that he and Ms. Sanchez "share ownership" of the Oak Trees, Complaint ¶ 3, and seeks a declaration that the trees are located on both the Gargiulo Property and on the Sanchez Property. Our courts have made clear that the portion of a tree that determines its location, and thus its ownership, is its trunk. In Massachusetts, "[w]here the trunk of a tree stands wholly on the land of one proprietor, he has been deemed the owner of the entire tree . . . though there is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises." Levine v. Black, 312 Mass. 242 , 243 (1942). "[T]he so-called 'Massachusetts rule' allows property owners to cut back the intruding branches and roots of their neighbors' trees." Kirk v. Zoning Bd. of Appeals of Weston, 2020 Mass. App. Unpub. LEXIS 175 at *2, citing Michalson v. Nutting, 275 Mass. 232 , 233-234 (1931). Unlike the case at bar, the Levine court contemplated a tree whose trunk straddled the boundary line between two neighbors. 312 Mass. at 242-243. In such circumstances, "[i]t has generally been said that . . . both parties own the whole tree as tenants in common." Id. at 243. Mr. Gargiulo contends that the Oak Trees at issue here similarly straddle the Property Line, Complaint ¶ 3, but the Plan's depiction of the trees' trunks makes clear that the Oak Trees are located solely and wholly on the Sanchez Property. D. App. Ex. 2.

To the extent that any branches encroach upon the Gargiulo Property, Mr. Gargiulo has the right to trim them up to the Property Line. See Shiel v. Rowell, 480 Mass. 106 , 112 (2018) (Supreme Judicial Court reaffirming the Massachusetts rule in holding that "[o]ur resolution has been and remains to authorize the cutting back of overhanging branches and intruding roots."); Michalson, 275 Mass. at 234 ("[s]hould the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property."). He does not, however, have the right to compel Ms. Sanchez to maintain trees located on her property in order to preserve the boughs overhanging onto his property. On the undisputed facts and as a matter of law, Mr. Gargiulo does not own the Oak Trees and cannot contest their removal.

The Fence

Ms. Sanchez also seeks summary judgment on her counterclaim for trespass, based on the fact, admitted by Mr. Gargiulo, that a portion of the Fence crosses the Property Line and encroaches on the Sanchez Property. In order to prevail in an action for trespass, the burden is on the plaintiff to show that the defendant intentionally entered the plaintiff's land and that the plaintiff either had "actual possession of the real property or a right to possession of the property at the time of the trespass." Bliss v. Boston Clear Water Co., LLC, 28 LCR 219 , 226 (2020) (Foster, J.), citing 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 (1992). In the case at bar, there is no dispute that Ms. Sanchez is the owner in possession of the Sanchez Property and that the Fence crosses the Property Line and encroaches upon the Sanchez Property. See D. App., Ex. 2. Accordingly, summary judgment will enter on Ms. Sanchez's trespass counterclaim.


For the foregoing reasons, the Summary Judgment Motion is ALLOWED. Judgment will enter on the Complaint declaring that the Oak Trees are the property of Ms. Sanchez, that she is entitled to remove them from the Sanchez Property, and that Mr. Gargiulo does not hold an ownership interest in the Oak Trees. Judgment will enter on Count I of Ms. Sanchez's counterclaim finding that the Fence, insofar as it is on the Sanchez Property, constitutes a trespass on the Sanchez Property and ordering that Mr. Gargiulo shall, no later than thirty (30) days from the issuance of that judgment, remove or cause to have removed the portion of the Fence that encroaches onto the Sanchez Property.



[Note 1] The Complaint misnames the defendant as "Edina" Sanchez.