KENNETH KOGA vs. RICHARD W. SOUTHGATE, JR., and JOANNE C. SOUTHGATE.

Plaintiff filed his Complaint to Quiet Title on December 19, 2011, pursuant to G. L. c. 240, §§ 6-10, seeking to quiet title to a portion of his property (the “Disputed Area”) located at 87 Western Avenue, Essex, Massachusetts (“Plaintiff Property”). Defendants, Richard Southgate, Jr. (“Southgate, Jr.”) and Joanne Southgate (“Joanne”) (together “the Southgates”), owners of property located at 85 Western Avenue, Essex, Massachusetts (“Defendant Property”) filed their Answer on January 12, 2012, in which they raised adverse possession as an affirmative defense.

A case management conference was held on January 23, 2012. The plaintiff filed a Joint Statement of Undisputed Facts on September 18, 2012, together with Affidavits of John Duncan, William Patrick, Sheila Anderson, Constance F. Perrigo, Jeffrey E. Anderholm, Teri W. Anderholm, Timothy Gerard Meagher, Susan Smith Talbot, Michael Buckley, Jackie Buckley, Garry Turner, Erin Turner, Richard Southgate III, Sara Richards and Barry Richards. [Note 1] A status conference was held on September 25, 2012, at which time this case was converted to a trial. A pre-trial conference was held on October 26, 2012. The Southgates filed their Statement of Undisputed Facts on November 27, 2012, together with Affidavits of the Southgates. Plaintiff filed his Statement of Additional Undisputed Material Facts on December 3, 2012. A view was held on December 19, 2012. The trial was held at the Land Court in Boston, Massachusetts on January 17, 2013 and January 18, 2013. At the commencement of the trial, the Southgates filed a Motion for Agreement of Stipulated Facts. Plaintiff filed his Opposition to such motion on January 24, 2013. Both parties filed Motions for a Directed Verdict at the conclusion of evidence given by Plaintiff and the Southgates, and this court declined to act on either motion at that time. A post-trial brief was filed on March 20, 2013 by the Southgates and on March 21, 2013 by Plaintiff and at that time the matter was taken under advisement.

Testimony at trial was given by Plaintiff’s witnesses David Dwyer (professional land surveyor) and Kenneth Koga (Plaintiff). Testimony at trial for the Southgates was given by Richard Southgate, Jr. (Defendant) and Joanne Southgate (Defendant). Forty-two exhibits were submitted into evidence, some in multiple counterparts.

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

1. Daniel L. Crafts and Sarah P. Crafts conveyed a portion of Plaintiff Property (Parcel II) to Falls School District by deed dated July 7, 1866, and recorded with the Essex County South District Registry of Deeds (the “Registry”) at Book 716, Page 232. Nathaniel Burnham conveyed a portion of Plaintiff Property (Parcel I) to Falls School District by deed dated July 19, 1866, and recorded with the Registry at Book 716, Page 233.

2. Inhabitants of the Town of Essex conveyed Plaintiff Property to Edward H. Saltzberg by deed dated July 2, 1953, and recorded with the Registry at Book 3991, Page 409. [Note 2]

3. Edward H. Saltzberg conveyed Plaintiff Property to Marjorie A. Grinnell (“Grinell”) by deed dated December 14, 1984, and recorded with the Registry at Book 7605, Page 595.

4. Grinnell conveyed Plaintiff Property to Jeffrey E. Anderholm and Teri W. Anderholm (the “Anderholms”) by deed dated February 17, 1988, and recorded with the Registry at Book 9405, Page 13.

5. The Anderholms conveyed Plaintiff Property to William Patrick and Carolyn M. Savarese (“Patrick /Savarese) by deed dated December 29, 1994, and recorded with the Registry at 12876, Page 289.

6. Patrick /Savarese conveyed Plaintiff Property to Alex D. Gramling and Lauren E. Albrecht by deed dated November 21, 2001, and recorded with the Registry at Book 17976, Page 226.

7. Alex D. Gramling conveyed his interest in Plaintiff Property to Lauren E. Albrecht by deed dated August 20, 2003, and recorded with the Registry at Book 21607, Page 465, thereby making Lauren E. Albrecht the sole owner of Plaintiff Property.

8. Lauren Albrecht Caverly f/k/a Lauren E. Albrecht (“Caverly”) conveyed Plaintiff Property to Plaintiff by deed dated May 27, 2009, and recorded with the Registry at Book 28635, Page 411.

9. Nancy E. Roberts conveyed Defendant Property to Richard W. Southgate (“Southgate, Sr.”), father of Southgate, Jr., by deed dated January 11, 1985, and recorded with the Registry at Book 7632, Page 464.

10. Southgate, Sr. conveyed a one-half undivided interest in Defendant Property to the Southgates by deed dated December 19, 1990, and recorded with the Registry at Book 10660, Page 510.

11. Southgate, Sr. conveyed the remaining one-half undivided interest in Defendant Property to the Southgates by deed dated January 7, 1991, and recorded with the Registry at Book 10677, Page 436.

12. The easterly side yard of Plaintiff Property abuts the westerly side yard of Defendant Property.

13. The Disputed Area is a 973 sq. ft. portion of land along the boundary between Plaintiff Property and Defendant Property. Plaintiff holds record title to the Disputed Area.

14. Plaintiff Property is shown on the plan titled “Survey Sketch 87 Western Avenue, Essex, Mass. 01929 prepared for Kenneth Koga by Otte & Dwyer, Inc. Land Surveyors” and dated March 24, 2011 (“the Otte & Dwyer Plan”). On the Otte and Dwyer Plan, Plaintiff Property is labeled as “Lot Area 11,816 s.f.±,” and the Disputed Area is the shaded region along the boundary between No. 87 Western Avenue and No. 85 Western Avenue labeled “Proposed Use Easement to Southgate 973 ± SF.” [Note 3]

15. The Southgates began residing at Defendant Property in January 1985.

16. Beginning in 1985 and continuing to the present, the Southgates cared for and maintained the Disputed Area by clearing the overgrowth, leveling out the ground by adding loam, planting grass seed, and mowing the grass on a weekly basis from Spring through Fall. During this same time, the Southgates have also annually fertilized the grass in the Disputed Area.

17. Plaintiff Property was unoccupied from January, 1985, when the Southgates moved onto Defendant Property, until sometime in 1987, when Grinnell moved onto Plaintiff Property. In 1987, the Southgates installed a dogwood tree and later a magnolia and cherry tree in what they claim to be the Disputed Area. [Note 4] In each year since planting these trees, the Southgates have spread mulch around each tree extending into the Disputed Area. [Note 5] In 1988, the Southgates helped the then owner of Plaintiff Property, Mrs. Anderholm, build a planter bed alongside the Koga Shed on Plaintiff Property, not within the Disputed Area.

18. When the Southgates began residing at Defendant Property in 1985, the remnants of an old iron fence existed along the westerly border of the Disputed Area. In 1988, the Anderholms, predecessors in title to Plaintiff Property, installed a split rail fence along the westerly border of the Disputed Area, from the rock wall along Western Avenue ending at the front of the shed on Plaintiff Property (“the Koga Shed”). This split rail fence partitioning the Disputed Area off from the rest of Plaintiff Property. The split rail fence remained in place until it was removed by the Southgates in 2007, after discussion with the then owner of Plaintiff Property, Caverly, due to it falling into disrepair. In 1995, Patrick/Savarese, predecessors in title to Plaintiff Property, planted a line of arborvitae abutting the westerly side of the split rail fence and installed a lattice fence along the border between the Disputed Area and Plaintiff Property. In 2007, the Southgates added to the existing lattice fence by extending it past the rear of the Koga Shed along the westerly border of the Disputed Area. Currently, the Westerly boundary of the Disputed Area is demarcated by a line of arborvitae and lattice fencing that extends from a rock wall along Western Avenue at the front of Plaintiff Property past the end of the Koga Shed at the rear of Plaintiff Property.

19. At some unknown time after the Southgates extended the lattice fence to the rear of the Koga Shed in 2007, the Southgates planted a hydrangea abutting the lattice fence in the Disputed Area and lined it with paver stones. Additionally, at some time after the arborvitae was planted along the westerly boundary of the Disputed Area, the Southgates erected a deer fence on the easterly side of the arborvitae to protect the hedges from the deer that tend to eat the vegetation.

20. In 2003, the Southgates installed an electric underground dog fence on Defendant Property between the apple tree and Western Avenue in the Disputed Area. [Note 6] In 2007, the Southgates installed an irrigation system on Defendant Property extending into the Disputed Area and watering the entire Disputed Area.

21. The Southgates own a motor boat, and they have utilized the Disputed Area as a place to store the boat. [Note 7]

22. Since moving onto Defendant Property in 1985, the Southgates and their son have utilized the Disputed Area sporadically for recreational purposes. The Southgates have hosted an annual outdoor party on the third week in June for numerous years now, where they invited many of the neighbors and utilized the Disputed Area to play games. Moreover, when the Southgates’ son was younger, he and his friends used the Disputed Area to play games such as soccer.

23. Since they began residing at Defendant Property in 1985, the Southgates never sought or obtained permission from Plaintiff or any predecessor in title of Plaintiff Property to use the Disputed Area. Furthermore, until Plaintiff hired Otte & dwyer, Inc. Land Surveyors, and discovered that the Disputed Area was in fact part of Plaintiff Property in November of 2010, no prior occupant had ever challenged the Southgates use of the Disputed Area. [Note 8] Since the Southgates began residing at Defendant Property in 1985, none of the occupants of Plaintiff Property made use of the Disputed Area nor did any occupants take efforts to maintain the Disputed Area as their own.

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The Southgates’ Motion for an Order Specifying Stipulated Facts:

Before addressing the merits of this case, the court will address the Southgates’ Motion for an Order Specifying Stipulated Facts which was filed with the court on Thursday, January 17, 2013, the first day of trial on this matter. The Southgates, by their motion, claim that certain facts should be deemed admitted by this court, pursuant to Land Court Rule 4 and Rule 56(d) of the Massachusetts Rules of Civil Procedure, because certain facts were stipulated based on Plaintiff’s response to the Southgates’ Statement of Undisputed Facts. This court requested that the Southgates serve Plaintiff with a statement of facts and give Plaintiff an opportunity to respond in order to ascertain whether the case should proceed with summary judgment or to trial. After filing the Southgates’ statement and Plaintiff’s responses with this court, it was clear to this court that there were disputed facts and that proceeding to trial was the appropriate procedure. The purpose of a trial is to determine the facts in dispute based on the sworn testimony of witnesses, and from Plaintiff’s Response to the Southgates’ Statement of Undisputed Facts it was clear that many facts were in dispute. However, facts that were admitted by Plaintiff in their Response shall be binding for purposes of the trial of this matter. Thus, I allow the Southgates’ Motion for an Order Specifying Stipulated Facts.

I shall now proceed to address the merits of this case.

The central issue in this case is the Southgates’ claim to the Disputed Area by adverse possession. The Southgates contend, by affirmative defense, that they are entitled to acquire title to the Disputed Area by adverse possession based on their testimony showing they have used and maintained the parcel actually, openly, notoriously, exclusively, adversely and without permission from Plaintiff or his predecessors in title for more than a twenty year period, commencing in 1985. Plaintiff makes the following arguments against the Southgates’ claim of adverse possession: 1) the Southgates’ testimony, on which the Southgates’ claim of adverse possession rests, is not credible due to numerous inconsistencies within the Southgates’ testimony and thus the Southgates have failed to meet their burden of clearly proving each element of adverse possession, and 2) the Southgates have failed to prove all elements required of adverse possession. I shall address each issue in turn.

I. Credibility of the Southgates

The credibility of a witness at trial is a relevant consideration when determining whether Plaintiff has met his burden of proof. Credibility questions are for the trier of fact to resolve. In Re Antonelli, 429 Mass. 644 , 648 (1999), citing DeMoulas v. DeMoulas Super Mkts., 424 Mass. 501 , 509-510 (1997). “[A]ll cases in the Land Court shall be tried and all questions of fact finally determined by the court...” G.L. c. 185 § 15. As fact-finder, the trial judge is free to believe one witness and disbelieve another. Palmer v. Murphy, 42 Mass. App. Ct. 334 , 343 (1997).

In Plaintiff’s post-trial brief, he raises the issue of the credibility of the Southgates’ testimony. Plaintiff points to numerous inconsistencies between Southgate, Jr.’s trial testimony and his deposition testimony, as well as between his trial testimony and his wife’s, as evidence of their lack of credibility as witnesses. Although there are clearly inconsistencies in Southgates, Jr.’s testimony, I find his testimony to be honest and credible. There is no evidence that leads me to believe that the Southgates attempted to deceive the court. [Note 9] Although some of the dates Southgate, Jr. testified to at trial were inaccurate or inconsistent, all of the use of the Disputed Area detailed by Southgate, Jr. was corroborated by the testimony of Joanne, and Plaintiff raises no issues as to the credibility of her testimony. Based on Joanne’s testimony alone, the Southgates satisfy the requirements of a claim for adverse possession.

The inconsistencies raised by Plaintiff within Southgate, Jr.’s testimony are not material with respect to the outcome of the case and do not impact the twenty year period required of a claim for adverse possession to succeed. For example, Southgate, Jr. testified that his wife planted a clematis in the Disputed Area in the 1980s; however, Mrs. Southgate later corrected Southgate, Jr. by clarifying that the clematis had only been planted in the Disputed Area in 2006. The precise date the clematis was planted in the Disputed Area is not material to the outcome of this case because this was not their first use of the Disputed Area. As discussed, infra, all of the facts taken together indicate that the Southgates have continuously used the Disputed Area since 1985. There is no doubt that Joanne did in fact plant the clematis in the Disputed Area at some point. This was merely one instance of the aggregate continuous use of the Disputed Area by the Southgates.

As a result of the foregoing, I find the credibility of Southgate, Jr. is not an issue in this case.

II. Adverse Possession

In Massachusetts, an individual may acquire title to the land of 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 asserting a claim to title through adverse possession bears the burden of proving each of the necessary elements of such possession. Mendonca v. Cities Service Oil Co. of PA, 354 Mass. 323 , 327 (1968). If any of the elements remains unproven or left in doubt, the claimant cannot prevail. See id. at 326; When evaluating whether a claimant's use is adverse, “[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., 301 Mass. 488 , 490 (1938).

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 demonstrates that the Southgates continuously used the Disputed Area for greater than the statutory twenty year period. The Southgates moved onto Defendant Property in 1985, and have lived there continuously since then. In Southgate, Jr.’s testimony, he acknowledged that in 1985 there was no fence dividing Plaintiff Property from Defendant Property; however, there were remnants of an old fence, with some remaining fence posts, along the westerly boundary of the Disputed Area. Southgate, Jr. testified at trial that since moving in, he and his wife continuously cared for the Disputed Area up to the old fence line, which the Southgates always believed to be the boundary between Plaintiff Property and Defendant Property. Joanne testified that beginning in 1985, she and her husband took a number of steps over time to improve the Disputed Area, which at first was not level and consisted of sparse grass. The Southgates improved the Disputed Area by removing trees and overgrowth, adding loam, planting new grass, and planting flowers and other plants along the fence line. Joanne testified that beginning in 1985, she and her husband shared responsibilities of maintaining the Disputed Area by regularly mowing the grass, raking the leaves, and caring for their plantings.

The Southgates’ use of the Disputed Area extended beyond mere care and maintenance. Their use of the Disputed Area included recreational purposes as well. Southgate, Jr. testified that he and his wife would host an annual party on the third week of June, where they would invite many of the neighbors over to enjoy playing games together. Southgate, Jr. testified that the activities at this annual event would often involve the Disputed Area. Furthermore, Southgate, Jr. testified that on occasion, when his son was younger, he and his friends would play games such as soccer in the Disputed Area. The Southgates also used the Disputed Area for a place to store their motor boat.

The Southgates’ argument that they continuously cared for and maintained the Disputed Area is further supported by the physical barriers that were installed by predecessors in title of Plaintiff Property along the westerly boundary of the Disputed Area. In 1988, the then owner of Plaintiff Property, the Anderholms, installed a split rail fence along the westerly boundary of the Disputed Area, partitioning the Disputed Area from the rest of Plaintiff Property while it remained open to Defendant Property. With the split rail fence still in place in 1995, the then owners of Plaintiff Property, Savarese and Patrick, planted a line of hedges and a lattice fence abutting the westerly side of the split rail fence, fortifying the physical barrier between Disputed Area and Plaintiff Property. The split rail fence has since been removed by the Southgates; however, the line of hedges and the lattice fence remain in place. Joanne testified that she and her husband erected a deer fence on their side of the arborvitae to protect the hedges from the deer in the area that the deer tend to eat.

Since the installation of the split rail fence in 1988, there has been a physical barrier between Plaintiff Property and the Disputed Area, while the Disputed Area has always remained open to Defendant Property. As long as there has been a physical barrier between the Disputed Area and Plaintiff Property, it is reasonable to believe, and the Southgates both testified to as much, that the Southgates continuously cared for the Disputed Area up to that physical barrier. The Southgates use of the Disputed Area also extended beyond the normal care and maintenance of the grass. In 2003, the Southgates installed an electric dog fence on Defendant Property, and Southgate, Jr. testified that the electric fence extended into the Disputed Area up to the split rail fence. Furthermore, in 2007, the Southgates installed an irrigation system on Defendant Property which, according to the Southgates’ testimony, extends into the Disputed Area. Based on the foregoing, I find that the Southgates have shown continuous use of the Disputed Area for a period in excess of twenty years.

b. Actual Use

In order to prevail on their claim of adverse possession, the Southgates’ use of the Disputed Area must be actual in nature, meaning they must be actually utilizing the land to which they are claiming title. 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 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.” LaChance, 301 Mass. at 491. “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.” Id. at 490. 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.

The Southgates utilized the Disputed Area in a manner consistent with any other owner’s use of similar lands, and have therefore met their burden regarding actual use of the property for the relevant time period. The Disputed Area abuts the side yard of Defendant Property. As Defendant Property is a residential property located in Essex, MA, use sufficient to acquire title by adverse possession must be consistent with ownership of such a residential plot. See LaChance, 301 Mass. at 490-491. The Southgates’ efforts in initially clearing the Disputed Area of overgrowth and their continued efforts to regularly care for and improve the Disputed Area over time by leveling the ground, adding loam, planting and mowing the grass, raking leaves, planting plants, installing a deer net to protect the arbor vitae, and laying mulch down, in this court’s opinion, are very much consistent with the use that could be expected from a typical owner of similar property.

The Southgates raised their child while living at Defendant Property, and as one would expect, and their testimony supports, the Disputed Area was also utilized by the family for recreational purposes. In 2003, the Southgates installed an electric dog fence on Defendant Property extending into the Disputed Area. [Note 10] In 2007, the Southgates installed an irrigation system extending into the Disputed Area. [Note 11] The evidence also shows that the Southgates used the Disputed Area as a place to store their motor boat. Based on the foregoing evidence, it is clear to the court that the Southgates actually used the Disputed Area in a manner consistent with the typical ownership of residential property of a similar nature for a period in excess of twenty years.

This conclusion is also supported by the site view the court took prior to the trial of this case. At the site view, the court viewed the current state of the Disputed Area as well as the physical barrier separating it from Plaintiff Property, which has been in place for many years. The physical barriers in place, including the arbor vitae and the lattice fencing, clearly separate the Disputed Area from Plaintiff Property and reinforces the conclusion reached above that the Southgates have continually utilized the Disputed Area as part of their own property. Thus, I find that the Southgates have shown actual use of the Disputed Area for a period in excess of twenty years.

c. Open and Notorious Use

In order to prevail on their claim for adverse possession, the Southgates use of the Disputed Area 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 Disputed Area, 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).

The Southgates have convinced this court that their use of the Disputed Area was open and notorious for the requisite period of twenty years. The Southgates have consistently maintained the Disputed Area, which was originally lined with overgrown bushes and trees, since they began residing at Defendant Property in 1985. The Southgates cleared out the overgrowth, leveled out the Disputed Area with loam, planted grass, and mowed and maintained the grass they had planted. [Note 12] Joanne planted a clematis and a hydrangea towards the rear of the Disputed Area abutting the lattice fencing and lined the hydrangea with paver stones. Furthermore, the Southgates installed an electric dog fence and an irrigation system, both of which extend into the Disputed Area and are permanent installations. The Southgates use of the Disputed Area described above was done without attempted concealment during the period in excess of twenty years. Moreover, they had no reason to try and conceal their use, because it was their belief all along, albeit a mistaken one, that the Disputed Area was part of their property. The Southgates continuous use of the Disputed Area was done openly and in a pronounced manner. Plaintiff and his predecessors in title to Plaintiff Property must have been aware of the Southgates use of the Disputed Area. Had any of the owners of Plaintiff Property maintained a reasonable degree of supervision over the property and ascertained where the boundary between Plaintiff Property and Defendant Property was, they would have known that the Southgates use of the Disputed Area was hostile to their own interest. As a result, I find that the Southgates’ use of the Disputed Area was open and notorious for a period in excess of twenty years.

d. Exclusive Use

To succeed on their claim of adverse possession, the Southgates must show that they were in exclusive possession of the Disputed Area 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.

The Southgates have convinced this court that their use of the Disputed Area was exclusive. When the Southgates began residing at Defendant Property in 1985, Plaintiff Property was unoccupied. The Disputed Area, in 1985, was overgrown with trees and remnants of an old fence was still intact. Plaintiff Property remained unoccupied until Grinnell moved in and lived there for a brief period of time in 1987. There is no evidence that rebuts the Southgates’ testimony, which this court finds credible, that Grinnell never made use of the Disputed Area. Grinnell then conveyed Plaintiff Property to the Anderholms, who installed a split rail fence shortly after they moved onto Plaintiff Property in 1988. The split rail fence ran from the rock wall along Western Avenue to just past the beginning of the Koga Shed. In the area along the side of the Koga Shed on Plaintiff Property, past the end of the split rail fence, the Anderholms, with the assistance of the Southgates, installed a planter box. There is no evidence to rebut the Southgates’ testimony, which this court finds credible, that the Anderholms never made use of the Disputed Area and that the planter box they installed was not within the Disputed Area.

From 1985, when the Southgates moved onto Defendant Property, to 1987, when Grinnell moved in, Plaintiff Property remained unoccupied. During this period of time, the Southgates presumably had exclusive use of the Disputed Area, and their testimony supports this. During the brief period that Grinnell lived at Plaintiff Property, the Southgates testify, and Plaintiff does not introduce evidence to suggest otherwise, that Grinnell did not use the Disputed Area or attempt to maintain it. From 1988, when the split rail fence was installed, to the present, there has consistently been a physical barrier along the boundary of the Disputed Area and Plaintiff Property. A line of arbor vitae and lattice fencing which originally abutted the split rail fence was installed in 1995 by Patrick/Savarese. The lattice fencing was even extended to the end of the Koga Shed by the Southgates in 2006. There is no evidence to rebut the Southgates testimony, which the court finds to be credible, that Patrick/Savarese, Alex Gramling and Lauren Albrecht, and Plaintiff never crossed this physical barrier and made use of the Disputed Area. Based on this evidence, I find that the Southgates’ use of the Disputed Area was exclusive for a period in excess of twenty years.

e. Adverse Use

In order for the Southgates to succeed on their claim of adverse possession, they must establish that they have used the Disputed Area adversely, or 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 benefited 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.

The Southgates testified at trial that they have never asked for, or obtained, permission from Plaintiff or any predecessor in title of Plaintiff Property, to use the Disputed Area. Plaintiff argues that the Southgates failed to satisfy the adverse use element based on specific instances of use where the Southgates acted with the permission of a previous owner of Plaintiff Property. Specifically, Plaintiff argues that there were three instances of permissive use over the period in question: 1) in 1988 when Southgate, Jr. helped Ms. Anderholm, at her request, to remove trees and bushes located along the westerly boundary of the Disputed Area; 2) in 1988 the Southgates helped Ms. Anderholm build a planter bed alongside of the Koga Shed; and 3) Joanne testified to the fact that she called Caverly, then owner of Plaintiff Property, and asked for permission to remove portions of the split rail fence that was abutting the line of arborvitae and that was falling into disrepair. I will address each of these points in turn.

Plaintiff has failed to convince this court that the Southgates’ use of the Disputed Area was permissive. As to the first argument, the testimony by Southgate, Jr. supports the conclusion that the trees and shrubs removed in 1988 were not in the Disputed Area. [Note 13] [Note 14] Moreover, Plaintiff has not introduced evidence to rebut this testimony and prove otherwise. As to the second argument, the evidence supports the conclusion that the planter bed built by the Southgates and the Anderholms, alongside of the Koga Shed, was not within the Disputed Area but was entirely on Plaintiff Property between the Koga Shed and the Disputed Area. Plaintiff has failed to introduce evidence to prove otherwise. Finally, as to the third argument, the fact that Joanne asked for Caverly’s permission to remove part of the split rail fence does not constitute permissive use of the Disputed Area. It was the belief of the Southgates that the split rail fence was on the boundary between the two properties, and that previous owners, the Anderholms, constructed that split rail fence. The Southgates acknowledge that part of the split rail fence was on Plaintiff Property, and thus it is reasonable to expect the Southgates to consult with the then owner of Plaintiff Property, Caverly, before taking down a fence that was installed by the former owner of Plaintiff Property, and along what they believed to be the boundary line between the two properties. Furthermore, The Southgates did not ask for permission to use the Disputed Area, but merely to take the fence down.

The testimony by the Southgates at trial supports the conclusion that when they began residing at Defendant Property in 1985, and utilizing the Disputed Area, Plaintiff Property was unoccupied, which means that when the Southgates initially began using the Disputed Area they could not have obtained permission. When Plaintiff Property began being occupied by Grinnell in 1987, the Southgates had already been utilizing the Disputed Area and testify that they did not seek permission for their continued use. The Anderholms were the next party to reside on Plaintiff Property, and the Southgates testify that they never sought or obtained permission from the Anderholms for their continued use of the Disputed Area. After the Anderholms, Patrick/Savarese owned and resided on Plaintiff Property. The Southgates testify that they never sought or obtained permission from Patrick/Savarese for their continued use of the Disputed Area. The next party to reside on Plaintiff Property was Alex Gramling and Lauren Albrecht, and the Southgates’ testimony indicates that they continued their nonpermissive use of the Disputed Area during this time. The Southgates testified that since Plaintiff purchased Plaintiff Property from Lauren Albrecht in 2009, they have never sought or obtained permission from Plaintiff for their use of the Disputed Area. Furthermore, based on the court’s findings that the Southgates’ use of the Disputed Area has been actual, open, and exclusive for a period of more than twenty years, the Southgates can invoke the presumption of adverse use. Totman, 431 Mass. at 145. Thus, I find that the Southgates’ use of the Disputed Area was adverse and nonpermissive for a period in excess of twenty years.

Having addressed the Southgates’ arguments in support of their adverse possession claim, I find that the Southgates established adverse possession over the entire Disputed Area. The parties shall jointly prepare a recordable plan of the area obtained by adverse possession (or may use the Otte & Dwyer Plan, modified in accordance with this decision) showing ownership by the Southgates of the Disputed Area 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.