Home WILLIAM D. YOUNG, RICHARD H. YOUNG II and STEVEN P. YOUNG, Plaintiffs, v. DOROTHY RISHER, Defendant

MISC 20-000226

OCTOBER 16, 2020

MIDDLESEX, ss.

FOSTER, J.

PRELIMINARY INJUNCTION

Introduction

In their Complaint filed on June 19, 2020 (Complaint), plaintiffs William D. Young, Richard H. Young II, and Steven P. Young (the Youngs) claim title to a 22 acre property in Billerica, Massachusetts described as Lot 1-B on a "Plan of Land in Billerica, Mass. prepared for John Ripa by Raymond Engineering Service, Boston Rd. Billerica, MA" dated September 17, 2002, and recorded in Book 210, Page 38 (the property), including a "Farmhouse Lot" located at 212 Andover Road, Billerica, MA (Farmhouse Lot) by means of adverse possession, and also claim a prescriptive easement over the property. Defendant Dorothy Risher (Risher), claims to maintain a 7/8 interest in the property and a 1/4 interest in the Farmhouse Lot. Plaintiff William D. Young alleges in the Complaint that he is also a record owner of the property, making William D. Young and Risher tenants in common.

On October 2, 2020, Risher filed her Motion for Preliminary Injunction, along with a supporting memorandum, an Affidavit of Kenneth A. Risher in Support of Motion for Preliminary Injunction (Kenneth Risher Affidavit), an Affidavit of Dorothy A. Lacey Risher (Dorothy Risher Affidavit), a Motion for Short Order of Notice, and a Motion to Waive the Security Provision of Rule 65(c), Mass. R. Civ. P.; the Youngs subsequently filed their Opposition of Plaintiffs William D. Young, Richard H. Young II, and Steven P. Young to Defendant Dorothy Risher's Motion for Preliminary Injunction (Opposition) on October 8, 2020.

Risher's Motion for Preliminary Injunction seeks to enjoin the Youngs from conducting the following activities on the property:

1. Excavation, grading, re-grading, or other activities by any equipment, including, without limitation, excavators, bulldozers, back hoes, bobcats or similar equipment;

2. Weed whacking, mowing, digging or other activity in any area outside the 200 x 230- foot parcel upon which the residence at 212 Andover Road is situated;

3. All activity within one hundred (100) feet of any river, brook or stream without an Order of Conditions issued by the Billerica Conservation Commission;

4. Removal, mowing, weed whacking or other destruction of any wetland vegetation on the subject parcel;

5. Operation of heavy equipment on any portion of the locus;

6. Trailblazing, trail maintenance, trail creation or other alteration of the existing trails throughout the property;

7. Drilling or tapping of any maple trees or other species throughout the properties;

8. Raising of livestock, including pigs, horses and any other animals excepting only chickens in the number and manner required under the Billerica Zoning Bylaws;

9. Dumping of trees, brush, sod, loam, or other landscape materials; and

10. Construction of accessory buildings, sheds, coops or other structures.

An order of notice issued, and hearing was held on the motion on October 9, 2020. All parties appeared through counsel, and the motion for preliminary injunction was taken under advisement. For the reasons and on the conditions set forth below, with the exception of existing farm activities, the motion for preliminary injunction is ALLOWED.

Discussion

A preliminary injunction may issue only if the moving party, Risher, demonstrates (a) a likelihood of success on the merits, (b) that she faces a substantial risk of irreparable harm if the injunction is not issued, and (c) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the Youngs. GTE Prods. Corp. v. Stewart, 414 Mass. 721 , 722-723 (1993); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980). In cases invoking the public interest, the moving party must also demonstrate that the requested order promotes the public interest or will not adversely affect the public. Commonwealth v. Mass. CRINC, 392 Mass. 79 , 89 (1984).

Risher has demonstrated a likelihood of success on the merits sufficient to warrant issuance of a preliminary injunction. The Youngs allege in their Complaint that they and their parents' use, possession, and control of the Property stretching back to the 1960s was open, adverse, exclusive, continuous, and uninterrupted for over 20 years, such that they have obtained exclusive title to the property by adverse possession and prescriptive easement. (Complaint, 22- 23, 24). However, where, as here, the party claiming adverse possession is a tenant in common to the opposing party, adverse possession requires proof of an additional element: that the plaintiff has ousted the other co-tenant. Kyros v. Chase, 12 LCR 283 , 290 (2004) (Sands, J.) This is because possession and use by one cotenant is not necessarily adverse to another, but "could be consistent with the right of the cotenant." Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984). The additional element of ouster has not been pled or demonstrated by the Youngs. Additionally, the Dorothy Risher Affidavit alleges that at all times the use of the property by the Youngs was by permission of the other co-tenants. (Dorothy Risher Affidavit, 2-3). The Youngs' failure to plead ouster, combined with Risher's allegation of permissive use, demonstrates sufficient likelihood of success on the merits for the court to consider preserving the status quo pending resolution on the merits.

Risher risks irreparable harm to her alleged interest in the property if the Youngs' alteration of the property is not enjoined. Her rights in the property are"not capable of vindication by a final judgment, rendered either at law or in equity." Packaging Indus. Group, Inc., 380 Mass. at 617 n.11 (1980). It is undisputed that Risher is a record owner of the subject property. Because of the unique nature of real property, "money damages will often be inadequate to redress a deprivation of an interest in land," and Massachusetts courts often permit preliminary injunctions to prevent such deprivation. Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81 , 88 (1996). Risher, through the Kenneth Risher Affidavit, has sufficiently alleged activities (regrading the property, clearing vegetation, removing stone walls, drilling into trees, bulldozing paths, etc.) that, if continued, could not be redressed by a decision in her favor after adjudication of the merits.

In contrast, so long as their rights to continue using the property for farm purposes are preserved, the Youngs have not demonstrated that they will suffer any irreparable harm if an injunction is issued. The Youngs assert in their Opposition that the complained of activities are "necessary and incidental to the farming activities" on the property, and that enjoinment of such activities will cause them loss of revenue. (Opposition at 1, 9.) Accepting, for now, the allegations that the farm activities have existed on the property for decades and that they provide a significant portion of William Risher's income, the court will not enjoin them. The chicken coops, for example, may remain. However, the Youngs have not shown that enjoining activities unrelated to the farm operation¬ócarving trails, filling wetland areas, regrading, removing vegetation, and the like¬ówill cause them any harm at all.

Because Risher has demonstrated a sufficient likelihood of success on the merits, a substantial risk of irreparable harm, and because there is little risk of harm to the Youngs if the non-farm related activities are enjoined, issuance of a preliminary injunction is proper to maintain the status quo. It is well worth noting that an injunction against non-farm related activities on the subject property will additionally serve the interest of the public by preventing alteration or destruction of wetland resource areas, actions that potentially violate the Billerica Wetlands Protection Regulations.

Conclusion

For the foregoing reasons, until further order of the court, the Youngs, their agents, servants, guests, and invitees, are hereby ORDERED to cease the following activities on the subject property, unrelated to farm operation, to preserve the status quo until further order of this Court:

1. Any and all excavation, grading, re-grading, or other activities by any equipment, including, without limitation, excavators, bulldozers, back hoes, bobcats or similar equipment;

2. Weed whacking, mowing, digging or other activity in any area outside the 200x230-ft Farmhouse Lot located at 212 Andover Road;

3. Any activity that might alter wetlands, including construction or expansion of existing structures, grading, excavating, filling, landscaping, reconstructing lawns, cutting or clearing vegetation, changing stormwater discharge, or installing or replacing a septic system, within one hundred (100) feet of any river, brook, stream, or wetland resource, or within two hundred (200) feet of any perennial rivers or streams, without first obtaining an Order of Conditions issued by the Billerica Conservation Commission;

4. Any removal, mowing, weed whacking, or destruction of any wetland vegetation on the subject parcel;

5. Any operation of heavy equipment unrelated to farm activities on the locus;

6. Any trailblazing, trail maintenance, trail creation or other alteration of the existing trails, paths, or roads throughout the property;

7. Any drilling or tapping of maple trees or other species throughout the properties that is unrelated to past farm activities;

8. Any dumping of trees, brush, sod, loam, or other debris and landscape materials;

9. Any construction of accessory buildings or sheds, with the exception of coops for farm purposes.

As it appears that the Youngs will have suffered no harm if this order is subsequently lifted, no bond is required.

The findings and rulings contained herein are necessarily preliminary in nature. Thus, these findings and rulings are neither intended, not should they be construed, as having any precedential weight or effect in further proceedings in this case, all of which shall be determined in the light of the evidence offered and admitted on those occasions. Should further-developed evidence or circumstances warrant, any party may move for the modification or dissolution of this order at any time.

SO ORDERED.