THEODORE LIBERATOS v. CHRISTINA V. HUTHER and KEVIN F. HUTHER.

Introduction

Plaintiff Theodore Liberatos and defendants Christina and Kevin Huther own abutting two-family homes on Jewett Street in Newton — 93-95 (Liberatos) on the north and 97-99 (Huther) on the south. A portion of the Liberatos driveway formerly encroached on the Huthers’ land. See Ex. 1 (photograph). [Note 1] In November 2010, subsequent to the time Ex. 1 was taken, the Huthers removed the encroachment and constructed a driveway of their own in the area, placing a raised granite curb along the record boundary line to separate the properties [Note 2] and, later, a fence at the end of the driveway they constructed. See Ex. 2 (survey). Mr. Liberatos then brought this lawsuit, claiming a prescriptive easement to use the area of the former encroachment, marked in gray on Ex. 2. The parties have also brought trespass claims against each other.

The case was tried before me, jury-waived. I also took a view at which, among other things, various measurements were taken and a car driven up and down the driveways. Based on the evidence received, my observations and the measurements at the view, my assessment of the weight, credibility and reliability of the evidence, and the reasonable inferences I draw therefrom, I find and rule that Mr. Liberatos does not have a prescriptive easement in the disputed area. The parties’ trespass claims are resolved as set forth below.

Facts

These are the facts as I find them after trial.

93-95 Jewett Street is a two-family home in Newton, purchased by plaintiff Theodore Liberatos on November 12, 1998. For the fifteen years before that, from December 2, 1983 to the time of Mr. Liberatos’ purchase in 1998, it was owned by Peter Brooks, who testified at trial. Mr. Brooks lived in one of its units until some time in the mid-90s and then, for the roughly two or three years immediately preceding the sale to Mr. Liberatos, leased both units to tenants, continuing to visit on a regular basis.

The 93-95 Jewett Street driveway is on the south (left) side of the property beginning at a curb cut on Jewett Street. It then crosses the sidewalk in a straight line, continues alongside a 3’-4’ high retaining wall in the front yard, and then along the side of the house to the back yard where there is an open-air parking area and the entrance to a two-car garage inside the building. See Ex. 1. The driveway is currently paved with asphalt. To the left of the driveway is the two-family house and property at 97-99 Jewett Street, currently owned by defendants Christina and Kevin Huther.

During Mr. Brooks’ ownership, the 93-95 Jewett Street driveway consisted of two straight, graveled tire tracks, worn into the ground from use, with a grass berm in between. The tracks were made by cars going to and from the rear of the house, and Mr. Brooks would add gravel from time to time as needed — two or three times over the fifteen-year course of his ownership. He does not recall ever stopping his car in the driveway or observing anyone else doing so. [Note 3] Instead, he drove directly from the street to the rear of his house, where he would park in the garage and enter from that side. The cars he drove were mid-sized or compact — a Pontiac Phoenix and a Porsche 920 — and the tracks they made would thus have been relatively narrow and not widely spaced. Mr. Brooks had no memory of the exact distance between the outer edge of the right tire track and the retaining wall and side of the house, but remembered it was only a narrow strip of dirt and grass. This is consistent with the driveway’s use at that time. Since cars never parked in the driveway and since (as the view showed) there was no need for a car to “swing wide” to get into the garage and parking area in the rear, there was need for only minimal space on the right as cars passed along the retaining wall and house, likely only a foot or two. The distance between the outer edge of the left tire track and the record boundary line between the properties was thus likely to have been two feet or more, even at its narrowest point. I thus find that, during the time of Mr. Brooks’ ownership, the driveway was entirely on the plaintiff’s property, with no encroachment whatsoever. [Note 4]

Things changed after Mr. Liberatos bought the property or, if not then, not too long before. [Note 5] According to Timothy Shannon (Mr. Liberatos’ paving contractor), there was 6” or more of gravel to the left of the left tire track when he first saw the driveway in November 1999, a year after Mr. Liberatos’ purchase. [Note 6] Mr. Liberatos instructed Mr. Shannon to pave the entire graveled area, which he did. Mr. Shannon also cut into the slope on the Huther side where he installed 6”-wide granite curbing. Ex. 1 shows the result — a net widening of 1-2 feet and, in places, more. Neither Mr. Shannon nor Mr. Liberatos had the property surveyed before doing any of this work.

In 2010, the Huthers decided to construct a driveway on the right side of their property, parallel to Mr. Liberatos’ driveway. After obtaining a professional survey, the Huthers discovered that the curbing installed by Mr. Liberatos and a portion of his driveway encroached on their property. See Ex. 2. They then sent a letter to Mr. Liberatos informing him of the encroachment. After giving Mr. Liberatos 30 days to have his own survey done, [Note 7] the Huthers went ahead with the construction of their driveway. They removed the granite curbing and placed it on Mr. Liberatos’ property. The driveway they then constructed is raised above Mr. Liberatos’ driveway between 5” and 6”, preventing drivers on one from driving on the other, although car doors from either can swing over the other’s driveway.

Even though he has not lived on Jewett St. for many years, Mr. Liberatos claims that he has seen the Huthers trespass on his property a dozen times since they installed their driveway in 2010. According to Mr. Liberatos, the Huthers need to drive over the front part of his driveway to get into theirs when there is snow on the ground. He also asserts that when the Huthers open their car door it swings over the record boundary and hangs over his property.

Additional facts are set forth in the Analysis section below.

Analysis

An easement by prescription may be acquired if, but only if, a claimant can show that his use of land has been (1) open, (2) notorious, (3) adverse to the owner, and (4) continuous or uninterrupted for a period of at least 20 years. See G.L. c. 187, § 2. See also Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1947); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007). The claimant bears the burden of showing, with clear proof, that each of these required elements is satisfied. See Boothroyd, 68 Mass. App. Ct. 40 at 44. A claimant who has owned property for less then 20 years may “tack” on to successive periods of adverse use by immediately preceding owners. See Ryan, 348 Mass. at 264. Since Mr. Liberatos acquired title in 1998 and the encroachment was removed in 2010 (a period of only 12 years), his prescriptive easement claim turns on whether the prior owner, Mr. Brooks, used the encroachment area and, if so, whether that use was open, notorious, adverse, and continuous or uninterrupted. As noted above, I find there was no such use. During Mr. Brooks’ tenure, the driveway was entirely on his property. There was no vehicle encroachment across the record boundary, and certainly none on any kind of regular, continuous basis. Thus, the prescriptive easement claim fails.

Trespass

Unauthorized entry upon the land of another constitutes a trespass to land. Hill v. Cutting, 113 Mass. 107 , 110 (1873). This includes the “invasion of the airspace above land without contact with its surface[.]” Smith v. New England Aircraft Co., 270 Mass. 511 , 528 (1930). In order to prevail on a trespass claim, the claimant must prove: (1) that he has actual and lawful possession of the property and (2) the defendant’s entry was intentional and illegal. See New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 707 (1943). See also Edgarton v. H.P. Welch Co., 321 Mass. 603 , 612-613 (1947) (requiring a voluntary act of entry for trespass).

I find that while the Huthers may occasionally open their car doors over Mr. Liberatos’ driveway, which technically amounts to trespass, Mr. Liberatos has not proved any resultant damage. [Note 8] He does not claim that this blocks, or has ever blocked, either his or his tenants’ access or other use of the driveway, or was anything other than the briefest of acts. He has not shown that an opened car door has ever damaged anything on his property. Because of the difficulty of enforcement and the current lack of any proof of damage, I decline to enter an injunction of any sort. If Mr. Liberatos can show damage from future incursions, he may file a new action for that damage and seek an injunction at that time.

There was some suggestion that either Mr. Liberatos or his tenants may occasionally open their car doors such that they swing over some portion of the Huthers’ driveway. No resultant damage has been shown. Again, there was no evidence that these were anything other than brief acts, done when the driveway was otherwise empty. There was no proof that any of the Huthers’ cars was damaged, or their use of the driveway impeded when needed. I thus decline to enter any damage award or injunction. Again, should damage be shown from future incursions, a new action may be filed at that time and appropriate relief sought.

Conclusion

For the foregoing reasons, the plaintiff’s claim for prescriptive easement is DISMISSED, WITH PREJUDICE. To the extent trespass from the brief opening of car doors has occurred, no resultant damage has been show. Thus, no damage award or injunction is given.

Judgment shall enter accordingly.

SO ORDERED

exhibit 1

exhibit 2