WILLIAM F. CRUM and CYNTHIA M. CRUM v. RAYMOND POLHEMUS and DAWN POLHEMUS.

Plaintiffs William F. Crum (“William”) and Cynthia M. Crum (“Cynthia”) (together, “Plaintiffs”) filed their unverified Complaint on April 6, 2011, pursuant to G. L. c. 240. § 6, seeking to quiet title to a strip of land (the “ROW”) located between their property at 63 Raymond Drive, Hampden, MA (“Plaintiff Property”) and property owned by Defendants Raymond Polhemus and Dawn Polhemus (together, “Defendants”) located at 55 Raymond Drive, Hampden, MA (“Defendant Property”), and claiming they owned the entire ROW by adverse possession. [Note 1] Defendants filed an Answer on June 8, 2011. A case management conference was held on June 15, 2011. On November 1, 2012, Plaintiffs filed a Motion for Default for Keddy. A pre-trial conference was held on December 5, 2012, at which this court allowed the Motion to default Keddy. On March 18, 2013, the parties filed a Stipulation (the “Stipulation”) in which they agreed that title to the ROW was held by each party to the center line of the ROW pursuant to the Derelict Fee Statute. A site view and trial in the Palmer District Court was held on March 25, 2013. At the trial Defendants attempted to submit two Affidavits (the “Affidavits”) into evidence, both of which affiants were scheduled to be witnesses at trial. [Note 2] This court allowed both parties to brief the issue. Defendants filed their brief on April 1, 2013. Plaintiffs filed their brief on April 8, 2013. By Order dated May 24, 2013, this court found that the Affidavits should not be allowed into evidence. The deadline for filing post-trial briefs was set for June 24, 2013. Plaintiffs filed their post-trial brief on June 19, 2013, and Defendants did not file a post-trial brief. Defendants did, however, file with the court a letter on April 25, 2013, which they referred to as a closing statement. The matter was taken under advisement on June 19, 2013.

Testimony at trial for Plaintiffs was given by William Crum (Plaintiff), Cynthia Crum (Plaintiff) and Linda LaFerrier (neighbor). Defendants did not present any witnesses. Nine exhibits were submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiffs own Plaintiff Property by deed (“Plaintiffs’ Deed”) dated April 7, 1977, and recorded with the Hampden County Registry of Deeds (the “Registry”) in Book 4406, Page 112. [Note 3] Plaintiffs’ Deed describes Plaintiff Property as bounded “WESTERLY by said most unnamed street, One Hundred Sixty and 89/100 (160.89) feet.”

2. Charles R. Wilson conveyed Defendant Property to Defendants by deed (“Defendants’ Deed”) dated March 16, 2000, and recorded March 31, 2000 with the Registry in Book 11146, Page 86. [Note 4] Defendants’ Deed describes Defendant Property as bounded “EASTERLY by the Westerly line of the adjacent unnamed street, as shown on said plan, one hundred fifty-nine and 82/100 (159.82) feet.”

3. The ROW is a strip of land approximately fifty feet wide and 160.00 feet long, which is comprised of a stone driveway, a yard, and a wooded area. The ROW is shown on plan of land dated September 24, 2010, prepared by Paul S. Smith Land Surveying (the “2010 Plan”). Plaintiff Property is shown as Lot 55 on the 2010 Plan, and Defendant Property is shown as Lot 56 on the 2010 Plan. The ROW is also shown as an unnamed way off Raymond Drive on plan titled “Street & Lot Layout of Mountainview Estates - Hampden, Mass. For Kay Vee Realty Company, Inc.” dated February 1965 and prepared by Frederick J. Smith Reg. Land Surveyor, and recorded with the Registry at Plan Book 1101, Pages 27 and 28. [Note 5]

4. A restrictive covenant recorded with the Registry at Book 3169, Page 201, was referenced in both Plaintiffs’ Deed and Defendants’ Deed limiting use of the lots for residential purposes.

5. Plaintiffs have never paid real estate taxes on the ROW.

6. Plaintiffs have used the ROW continuously from 1977 to the present time. When Plaintiffs purchased Plaintiff Property in 1977, the ROW was overgrown with brush. After Plaintiffs purchased Plaintiff Property, they began to use the ROW by clearing brush, seeding and mowing, adding a vegetable garden and a sandbox. Plaintiffs and their children used the ROW for recreational purposes. Plaintiffs installed a swing set in the ROW for their children to play on, and when the children were young they used the ROW for playing baseball, for ice-skating in the winter after they built a freeform and filling it with water, and for a bicycle track with jumps they built. Later, when their children were older, the children parked cars in the ROW to keep their cars out of the way in the driveway. In 1995, Plaintiffs commenced a landscape business at their property, added stone to the front of the ROW to create a driveway, and began storing trucks, trailers and equipment related to this business in the ROW. The driveway has been re-stoned by Plaintiffs on at least one occasion. Plaintiffs have also utilized the ROW to store a boat, a jet ski, and a motor home.

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Plaintiffs acknowledge that Defendants own the one-half of the ROW adjacent to Defendant Property, but argue that Plaintiffs have established legal title to that area by adverse possession. Defendants argue that Plaintiffs have not met the burden of proving the elements of adverse possession.

Adverse Possession

In Massachusetts, an individual may acquire title to the land belonging to another if he exercises actual, open, notorious, exclusive, adverse, and nonpermissive use of the property for a period in excess of twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). “Whether ... these elements are sufficiently shown is essentially a question of fact.” Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 156 (2011) (quoting Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961)). A party claiming title through adverse possession bears the burden of proving each of the necessary elements of such possession, and if any of the elements remains unproven or left in doubt, the claimant cannot prevail. Mendonca v. Cities Service Oil Co. of PA, 354 Mass. 323 , 326-327 (1968). When evaluating a claim for adverse possession, “[t]he 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.” (Internal citations omitted) Cook v. Babcock, 65 Mass. 206 , 210 (1853). To succeed, the claimant must establish changes upon the land that constitute “such control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). “[T]he 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.” Brandao, 80 Mass. App. Ct. at 156; LaChance v. First National Bank & Trust Co., Mass. 488, 490 (1938).

Plaintiffs contend that they have used the entire ROW for more than thirty-five years in an open and notorious, adverse, continuous, and exclusive manner. Both Plaintiffs testified to such use, indicating that they cleared the ROW and seeded it when they moved there in 1977, and over the years have used the entire ROW for recreational purposes such as playing baseball, ice-skating, and riding bikes with jumps. They also planted a vegetable garden, planted flowers, mowed the grass, and added a sandbox and swingset for their three boys to use when they were younger. In 1995, they added a stone driveway at the front of the ROW, and have restoned that area since then. They testified that they have parked cars, trucks, trailers, a boat, a motor home, and a jet ski on the ROW. One of Plaintiffs’ neighbors, Linda LaFerriere, who has lived in the neighborhood since the early 1970s, testified that she had seen Plaintiffs use the ROW for their own purposes since they moved there in 1977. Defendants did not purchase Defendant Property until 2000, and there was no evidence as to their predecessor’s use of the ROW. Moreover, Defendants did not testify, and did not present any witnesses relative to their use of the ROW.

I will examine each element of an adverse possession claim in turn.

a. Continuous Use for Twenty Years

A party claiming title to real property by adverse possession must demonstrate uninterrupted use of the disputed property for the minimum twenty (20) year statutory period. G. L. c. 260 §§ 21, 22; Hewitt v. Peterson, 232 Mass. 92 , 94 (1925). To succeed on a claim of adverse possession, the claimant is not required to have used the property for a single purpose for the entire statutory period. Liebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990). However, the finder of fact must determine whether “the adverse possession has been continuous or has been interrupted.” Bowen v. Guild, 130 Mass. 121 , 124 (1881). Acts of possession will not be sufficient to prevail on a claim of adverse possession if they are “few, intermittent or equivocal.” Parker v. Parker, 1 Allen 245 , 247 (1861).

The evidence presented at trial by Plaintiffs demonstrates that Plaintiffs continuously used the ROW for greater than the statutory twenty year period required of a claim for adverse possession. Cynthia testified that when she and her husband purchased Plaintiff Property in 1977, they were under the belief, albeit a mistaken one, that the ROW was part of Plaintiff Property. Upon moving onto Plaintiff Property, William testified that they immediately began using the ROW and took care of it just as they had Plaintiff Property. Cynthia testified that after she and her husband cleared the brush from the ROW, they planted grass seed and mowed the grass on a regular basis as well as planted and cultivated a vegetable garden in the ROW. When the kids were older, they parked their cars in the ROW. Plaintiffs also installed a sandbox and swing set in the ROW for their children to use when they were younger and during many of the winters Plaintiffs built an ice skating rink in the ROW. Furthermore, Cynthia testified that when her three children were young, they used the ROW for recreational purposes such as playing baseball with neighborhood kids and making bicycle jumps.

In approximately 1995, Plaintiffs started a landscaping business, and they began utilizing the ROW in connection with their landscaping business. Cynthia testified that for the business, they accumulated trucks, trailers, and a chipper, all of which were consistently stored in the ROW. In addition, William testified to using the ROW for storing personal items, including a jet ski, boat and motor home.

Plaintiffs testified that there has not been a time since they purchased Plaintiff Property that they have not maintained the ROW. The evidence of Plaintiffs’ extensive use of the ROW, including regular maintenance, recreational use, and use in connection with their landscaping business, based on the testimony of Plaintiffs and Ms. LaFerriere, supports the conclusion that Plaintiffs continuously used the ROW for the statutory minimum twenty years required of a claim for adverse possession. Plaintiffs also introduced several photographs into evidence to show their recent and continued use of the ROW as a place for storage. As Defendants failed to introduce evidence at trial to rebut Plaintiffs’ evidence supporting their claim for continuous use of the ROW, and based on the foregoing reasons, I find that Plaintiffs have shown continuous use of the ROW for a period in excess of twenty years.

b. Actual Use

In order to prevail on their claim of adverse possession, Plaintiffs’ use of the ROW must be actual in nature, meaning they must be actually utilizing the land which they are claiming title to. See LaChance, 301 Mass. at 490-491. In determining whether use is actual, “[a] judge must examine the nature of the occupancy in relation to the character of the land.” Peck, 34 Mass. App. Ct. at 556 (citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). “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.” LaChance, 301 Mass. at 490. The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” Id., at 491. Actual use need not manifest itself in the form of a permanent structure, so long as the use is in a manner consistent with that of typical ownership. Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 (2008) (citing LaChance, 301 Mass. at 491). Thus, “mowing the lawn and maintaining a row of trees,” if typical activities in normal ownership, may constitute actual use. Hurlbert, 73 Mass. App. Ct. at 1104.

Plaintiffs utilized the ROW in a manner consistent with any other owner’s use of similar lands, and have therefore met their burden regarding actual use of the ROW for the relevant time period. The ROW is a strip of land abutting the westerly side of Plaintiff Property, which is a residential lot located in Hampden, MA. Thus, use sufficient to acquire title to the ROW by adverse possession must be consistent with ownership of such a residential plot. See LaChance, 301 Mass. at 490-491. The testimony by Plaintiffs indicates that when they moved onto Plaintiff Property in 1977, they immediately began utilizing the ROW. Their use of the ROW began with their efforts to clear the strip of land of brush, planting grass seed and a vegetable garden. After clearing the ROW and planting grass, Plaintiffs testify that they regularly mowed the ROW and cultivated vegetables from their vegetable garden. When Plaintiffs had children, they installed a swing set and sandbox for their kids to enjoy. When their children were a bit older, they used the ROW for playing baseball, riding bikes, and during the winter Plaintiffs would build an ice skating rink in the ROW. When their children were of driving age and had their own cars, they would park their cars in the ROW to keep them out of the driveway.

In 1995, Plaintiffs began utilizing the ROW in connection with their landscaping business. William testified that he and his wife stored trucks and trailers in the ROW, and continue to do so today. Pictures introduced as evidence by Plaintiffs depict their recent use of the ROW as a place to store landscaping equipment as well as personal items, including a motor home, jet ski and motor boat. Cynthia testified that she and her husband also laid down stone at the front of the ROW along Raymond Drive, and they have re-stoned this area at least one other time since then.

Based on the foregoing evidence of Plaintiffs’ extensive use of the ROW since 1977, it is clear to the court that Plaintiffs actually used the ROW in a manner consistent with the typical ownership of residential property of a similar nature for a period in excess of twenty years. Defendants have not introduced any evidence to refute the Plaintiffs’ actual use of the ROW over the relevant time period. Thus, I find that Plaintiffs have shown actual use of the ROW for a period in excess of twenty years.

c. Open and Notorious Use

In order to prevail on their claim for adverse possession, Plaintiffs use of the ROW must be open and notorious for a period in excess of twenty years. Ryan, 348 Mass. at 262. “Open and notorious use of a property is...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 v. Town of Concord, 439 Mass. 416 , 422 (2003). Use is deemed sufficiently open so long as it is “without attempted concealment.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Notorious use requires that the use 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.” Id. The elements of open and notorious use are descriptive of the claimants’ possession and use of the ROW, not the owner’s perception or knowledge of their interest. Lawrence, 439 Mass. at 422. The true landowner does not need to subjectively know of the adverse possessor’s use, but the possessor’s use must be sufficient to put the true owner on notice that the possessor is asserting rights to the property. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

Plaintiffs have convinced this court that their use of the ROW was open and notorious for the requisite period of twenty years. Plaintiffs’ use of the ROW, including regular maintenance, recreational use, and use for storage of vehicles and equipment in connection with their landscaping business, was done without attempted concealment and in such an open and visible manner such that it was clear to their neighbors that Plaintiffs asserted rights to this strip of land and claimed it as their own. Mrs. LaFerriere, a neighbor of Plaintiffs whom has lived on Raymond Drive for forty-one years, testified at trial that she was always under the impression that Plaintiffs owned the ROW because she drove by Plaintiff Property frequently and witnessed Plaintiffs’ use and maintenance of the ROW from the time they moved onto Plaintiff Property in 1977. Plaintiffs’ regular maintenance of the ROW and their use of the ROW for a place to store trucks, trailers, a motor home, a boat, and a jet ski, all of which are visible from Raymond Drive, are sufficient to put the true owner on notice of their claim of rights to the strip of land and to satisfy the elements of open and notorious use which are required of a claim of adverse possession. Thus, I find that Plaintiffs’ use of the ROW was open and notorious for a period in excess of twenty years.

d. Exclusive Use

To succeed on their claim of adverse possession, Plaintiffs must show that they were in exclusive possession of the ROW for a period in excess of twenty years. Ryan, 348 Mass. at 262. Use of a property is exclusive when the claimant excludes “not only?[the] owner, but?all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass.App.Ct. at 557. “Acts of enclosure or cultivation are evidence of exclusive possession.” Id. (quoting Labounty v. Vickers, 352 Mass. 337 , 349 (19 67)). However, enclosures are not necessary, so long as third parties are excluded in a manner similar to that which the owner would have excluded them. See id.

Plaintiffs have convinced this court that their use of the ROW has been exclusive for a period in excess of twenty years. Cynthia testified that none of their neighbors have ever used the ROW, including Defendants, for any purpose. Ms. LaFerriere testified that she never saw anyone, other than the neighborhood kids, use the ROW, and according to Cynthia’s testimony, the neighborhood kids were invited by Plaintiffs to use the ROW for recreational purposes with her children. The testimony of William corroborates Cynthia’s testimony that none of their neighbors, or anyone for that matter, ever used the ROW, not even as a cut through to access the property behind Plaintiff Property.

Defendants did not introduce any evidence to rebut Plaintiffs’ testimony, and that of Ms. LaFerriere, all of which this court finds to be credible, that their use of the ROW has been exclusive. As a result, I find that Plaintiffs’ use of the ROW was exclusive for a period in excess of twenty years.

e. Adverse Use

In order for Plaintiffs to succeed on their claim of adverse possession, they must establish that they have used the ROW adversely, meaning without permission from the true owner. See Ryan, 348 Mass. at 262. “The essence of nonpermissive use is lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefitted from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id. A presumption of adverse, or nonpermissive, use exists where the use of the land is actual, open, and exclusive for a period of twenty years or more years. Id. at 146.

According to the testimony of Cynthia, she and her husband have never had a conversation with any of their neighbors about their use of the ROW since moving in. Cynthia testified that she and her husband believed from their purchase of Plaintiff Property, based on their conversation with the realtor, that the ROW was part of the property they owned, and thus they never would have sought permission for the use of it. William also testified that he and his wife had never had a conversation with any of their neighbors, including Defendants, about their use of the ROW.

Plaintiffs have convinced this court that their use of the ROW was adverse and nonpermissive. Defendants have failed to introduce evidence to rebut Plaintiffs’ testimony, which this court finds credible, that they have never sought permission for the use of the ROW, because they were always under the impression that this strip of land belonged to them. Furthermore, based on the court’s findings that Plaintiffs’ use of the ROW was actual, open, and exclusive for a period of more in excess of twenty years, Plaintiffs can invoke the presumption of adverse use. Totman, 431 Mass. at 145. As a result, I find that Plaintiffs’ use of the ROW was adverse and nonpermissive for a period in excess of twenty years.

As a result of the foregoing, I find that Plaintiffs have established adverse possession to the entire ROW. The parties shall jointly prepare a recordable plan of the area obtained by adverse possession, consistent with the above, showing ownership by Plaintiffs of the ROW and shall record such plan within forty-five (45) days from the date of this decision. The costs of preparing and recording such plan shall be shared equally by the parties. The parties shall notify this court (Jennifer Masello, Sessions Clerk), in writing, when such plan is recorded.

Judgment to enter accordingly.