This cause came to be heard upon a motion for summary judgment. The plaintiffs David J. and Maria F. Pimental (plaintiffs/ the Pimentals) have moved for summary judgment upon their claim that they own approximately 2,216 square feet of the defendant Barbara M. Lepores (defendant/ Lepore) land by virtue of adverse possession. For her part, the defendant did not oppose the motion for summary judgment.
The Pimentals filed their Verified Complaint on August 10, 2010 [Note 1] seeking a judgment that they own approximately 2,216 square feet of the defendants land (the Disputed Area) [Note 2] by adverse possession. In their complaint, the plaintiffs further request that defendant Sovereign Bank discharge so much of the mortgage held on the defendants property to the extent it purports to encumber the Disputed Area. Further relief was sought in Count II of the complaint. Specifically, the plaintiffs seek a permanent injunction restraining the defendants from entering upon the Disputed Area or destroying any improvements thereon. The plaintiffs also seek damages for Trespass and restoration of the Disputed Area to its prior condition.
On August 17, 2010, a hearing was held in this Court (Piper, J.) in which the Pimentals were granted a Preliminary Injunction, and a Judicial Endorsement of Memorandum of Lis Pendens pursuant to G.L. c. 184 §15. [Note 3] On October 1, 2010, the defendants Melda V. Medro, Barbara M. Lepore and Sovereign Bank were defaulted pursuant to Mass. R. Civ. P. 55(a).
On June 2, 2011, the defendants Melda Medro and Barbara Lepore moved to remove the default and for leave to file an answer late. [Note 4] The defendants motion was subsequently allowed and, as a consequence, the default was removed as to Medro and Lepore, only. Thereafter, the Pimentals served interrogatories upon Medro and Lepore on August 4, 2011. As no response to the interrogatories had been received within the forty-five day period specified under Mass. R. Civ. P. 33(a), the plaintiffs served a Final Request for Interrogatories on the defendants on September 20, 2011. Melda Medro passed away on September 17, 2011 and was dismissed from this action.
No response to the interrogatories was submitted by Lepore. Whereupon, the Pimentals moved for Final Judgment, pursuant to Mass. R. Civ. P. 33(a)(4). On November 4, 2011, Lepore mailed answers to the first set of interrogatories and on November 14, 2011, she responded to the plaintiffs Motion for Final Judgment. On May 15, 2012, a Telephone Conference Call was held in which the Pimentals attorney participated. Lepores attorney was unavailable. At that time, deadlines for the completion of discovery and dispositive motions were set. Notice of the schedule was sent to counsel for all parties.
On July 13, 2012, the Pimentals filed their motion for summary judgment. Oral arguments were scheduled and heard on January 10, 2013. Neither Lepore nor her attorney appeared. [Note 5] Moreover, no written opposition was submitted. At that time, this court afforded the defendants counsel until February 4, 2013 to request further hearing on the motion. No request was forthcoming.
The only issue before this court is whether the plaintiffs have acquired title to the Disputed Area by virtue of adverse possession. This court concludes based on all the evidence, including supporting affidavits, properly before it, that the plaintiffs are entitled to an entry of Summary Judgment on their behalf.
The material facts are not in dispute. By deed dated August 26, 1966 recorded at Book 1533 Page 485, David and Maria Pimental purchased the property located at 437 Russells Mills Road, Dartmouth, Massachusetts. [Note 6] At the time of purchase, the property was improved with a newly-constructed dwelling and there were no trees thereon. The rear yard was partially graded, with grass having been planted on the graded portion. [Note 7]
By deed dated January 4, 1966, Lepores predecessors in title, Robert W. and Agnes D. Ibbotson (the Ibbotsons), took title to 439 Russells Mills Road. [Note 8] Their home which is directly adjacent to the Pimental property, was also newly constructed. That parcel too, was devoid of trees. [Note 9] Both the Pimentals and the Ibbotsons rear yards experienced flooding due to poor drainage. Between 1966 and September of 1970, the Ibbotsons planted a line of arborvitae between the houses. [Note 10] Subsequent to planting the row of arborvitae, the Ibbotsons re-graded the land in their back yard, west of the arborvitae hedgerow. They did not re-grade the land on the Pimentals side (the eastern side) of the hedgerow. [Note 11]
For unknown reasons, the line of arborvitae was not located on the property line, but was instead set on a right angle to the street, through land then owned by the Ibbotsons, and to the west of the record property line. The record boundary between the Ibbotson land and the Pimental Property originates at the same point as the line of arborvitae, but travels on an 80 degree angle from the road to the rear boundary of the property. [Note 12] The land lying between the row of arborvitae and the record property line, i.e. approximately 2,216 square feet, comprises the disputed property. [Note 13]
Ever since the planting of the arborvitae, the Pimentals have made use of the Disputed Area. David Pimental mowed the lawn on a regular basis. [Note 14] In 1973, the Pimentals septic system failed, and in April of that year, they tied into the Town sewer system. [Note 15] The sewer clean out pipe is located within the Disputed Area. At the same time that the Pimentals tied into the Town sewer system, they graded their backyard and the Disputed Area, to be level with the grade of the Ibbotsons lawn. [Note 16] After the land was graded, David Pimental planted grass on his newly graded yard, including the Disputed Area. Later that year, in the fall of 1973, David planted a Blue Spruce tree and a Peach tree within the Disputed Area. [Note 17]
In 1975, the Pimentals erected a wooden fence from the end of the arborvitae to Russells Mills Road. This fence was constructed to prevent the three school age Pimental children from cutting across the Ibbotsons front yard to reach the school bus stop. The wooden fence posts were prone to rot, necessitating replacement every few years. At some point, the Pimentals planted a flower garden on the east side of the fence. [Note 18] In 1997, David Pimental replaced the wooden fence with a vinyl one. The fence was located along what is the southwestern border of the Disputed Area. [Note 19]
Sometime between 1979 and 1984, David Pimental, with the assistance of friends, constructed a garden shed within the Disputed Area. [Note 20] The shed has a gambrel roof and is sided with wooden shingles. There are Dutch doors and two windows on the shed front. [Note 21] It was constructed upon the prior location of the Pimental childrens swing set, which was installed between 1975 and 1977. [Note 22] David Pimental used the shed to store his lawnmower, shovel, snow removal equipment and gardening tools. [Note 23] The Pimentals also used land in the Disputed Area for a different swing set and patio equipment. Over the years, they planted a dogwood tree in the Disputed Area, as well as placing a decorative corner wooden fence near the rear property boundary. Additionally, the Pimentals routinely held functions at in their back yard, including cook outs, birthday parties and dinner parties which were enjoyed by their friends and family. [Note 24] In June of 1985, they held a fiftieth anniversary party for Maria Pimentals parents. [Note 25] By February of 1994, the Pimentals planted a row of arborvitae across the Disputed Area and the remainder of their side yard, connecting the hedgerow planted by the Ibbotsons and the Pimentals house. That summer, they built an arbor to define the walkway through the side yard hedgerow. [Note 26]
Robert Ibbotson passed away on June 29, 1984. [Note 27] Agnes Ibbotson died on February 18, 1993, [Note 28] and 439 Russells Mills Road passed by deed to her son, Peter Norton. [Note 29] Norton later [Note 30] sold the property to Timothy Silva, who in turn conveyed the land by deed dated October 23, 1997 to Charles and Melda Medro. [Note 31] Charles Medro died June 26, 2000, leaving Melda Medro the sole owner of 439 Russells Mills Road. [Note 32] By deed executed July 10, 2007, Melda Medro created a life estate for herself in the property with the remainder to the defendant, Barbara Lepore. [Note 33]
On September 9, 2009, Melda Medro and Barbara Lepore granted a mortgage on 439 Russells Mills Rd to Sovereign Bank in the amount of $50,000. [Note 34] Subsequently, Medro and Lepore had their land surveyed, and the resultant survey displayed the discrepancy between the still extant, and now quite tall arborvitae hedgerow [Note 35] and the record property line. [Note 36] In June of 2010, Medro and Lepore removed the boards of the Pimentals vinyl fence. [Note 37] Later that year, on July 28, 2010, Medro and Lepore, over the protests of the plaintiffs, installed a chain link fence along the actual property line. In doing so, they took physical possession of the Pimentals shed, swing set, decorative wooden fence and several trees planted by the Pimentals. This suit followed shortly thereafter.
Summary judgment is to be granted when "pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c). The moving party bears the burden of proving the absence of controversy over material facts and that it deserves a judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Hogan v. Riemer, 35 Mass. App. Ct, 360, 364 (1993). A corollary to the moving party's burden is that the court is to "make all logically permissible inferences" from the facts in the non-moving party's favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).
Mass R. Civ. P. 56 (c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon a judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved.
With respect to the issue as to whether the plaintiffs have acquired title to the Disputed Area by way of adverse possession, the underlying facts are undisputed. As a consequence, this case is ripe for summary judgment.
This case is somewhat unique insofar as the plaintiffs motion for summary judgment is unopposed. As noted supra, despite notice of the January 10, 2013 hearing, the remaining defendant, Barbara Lepore, neither filed a written opposition to the plaintiffs motion, nor did she or her attorney appear at the hearing. Moreover, this court afforded Lepore additional time, post hearing, until February 4, 2013, in which to request further hearing upon the motion. No request was forthcoming.
Nonetheless, the summary judgment record is sufficiently well developed so as to allow this court to decide the motion before it.
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years, Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Such use must be continuous during the statutory period. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968) (use by owner of record during statutory period breaks continuity of adverse claimants possession and vitiates claim). The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights. Totman v. Molloy, 431 Mass. 143 , 145 (2000). See Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808) ([t]o constitute a disseisin of the owner of uncultivated land by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title).
To ensure that the purpose of the doctrine is met, the burden of proof rests upon the one asserting the title [by adverse possession]. The burden of proof extends to all of the necessary elements of such possession and includes the obligation to show that it was actual, open, continuous, and under a claim of right or title. Mendonca, supra, quoting from Holmes v. Johnson, 324 Mass. 450 , 453 (1949) (internal quotations omitted). If any of these elements is left in doubt, the claimant cannot prevail. Ibid.
This court will consider whether plaintiffs have met their burden as to each element, seriatim.
In the present context, the word actual refers to the use and control of the land at issue, sometimes described a dominion, in derogation of the true owners rights. See Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). The acts necessary to establish actual use and dominion will vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. LaChance v. First Natl Bank, 301 Mass. 488 , 490 (1938). [T]he possessor must use and enjoy the property . . . as the average owner would use it . . . Ottavia, supra at 333, quoting from 3 American Law of Property, § 15.4, at 776-777 (A.J. Casner ed. 1952). See Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). In most cases, to fulfill this requirement, the possessor must make changes upon the land that constitute such a 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), quoting from LaChance, supra at 491.
In the case at bar, the Disputed Area is a portion of a residential suburban lawn. The Pimentals have presented credible, uncontroverted evidence that since the planting of the arborvitae hedgerow by the Ibbotsons, they have used the land as would an average owner. David Pimental mowed and maintained the lawn. Such labors are consistent with the usual and ordinary course of actions employed by landowners in suburban areas. See Collins v. Cabral, 348 Mass. 797 , 797-798 (1965); Soer v. Daffe, 337 Mass. 420 , 423 (1951); Brandao v. Docanto, 80 Mass. App. Ct. 151 (2011); Sea Pines Condominium III v. Steffens, 61 Mass. App. Ct. 838 , 847-849 (2004); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 904 (1993); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979). In 1973, after their septic system failed, the Pimentals connected with the Town sewer system. At that time, they placed the sewer trap within the Disputed Area, and re-graded the entire back yard as to alleviate persistent flooding issues. The re-graded area, which included much of the Disputed Area, was planted with lawn. This physical improvement to the land is the permanent improvement associated in the case law with actual possession. Peck, supra. See also Collins v. Cabral, 348 Mass. at 798 (adverse possession found in part where possessor installed a septic tank, re-graded the property and planted lawn thereupon).
Subsequently, in 1975, the Pimentals erected a wooden fence along the southwestern boarder of the Disputed Area, connecting the hedgerow with the street. As previously observed, the wooden fence posts were susceptible to rot, and correspondingly were replaced every few years until 1997, when the Pimentals replaced the wooden fence with a vinyl one. Between 1979 and 1984, the plaintiffs constructed a large garden shed within the Disputed Area. They also planted trees, built a decorative corner fence and planted a flower garden within the front yard section of the Disputed Area along the wooden fence. These improvements are indicative of an intention on the part of the Pimentals to use and appropriate the land to their own benefit and to the exclusion of others. LaChance v. First Natl Bank, 301 Mass. at 491.
In the aggregate, there is ample evidence that the plaintiffs actually possessed the Disputed Area. Consequently, this court finds and rules that plaintiffs have met their burden in demonstrating their actual possession of locus.
Nonpermissive use, which has been referred to interchangeably in the case law as hostile, adverse, or under a claim of right, is in essence a lack of consent from the true owner. Totman, 431 Mass. at 145. One's use of another person's property is adverse to that person if the manner of his use and the circumstances thereof demonstrate that he does not recognize or consider himself to be subject to an authority in that person to prevent his use of the property. Bills v. Nunno, 4 Mass. App. Ct. 279 , 284 (1976), citing Restatement of Property §458, comments c and d (1944). The relevant inquiry is whether consent was given to use the defendants land. Kendall v. Selvaggio, 413 Mass. at 623; Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964).
In the matter at hand, there is no evidence that the use was permissive. Rather, the evidence before the court supports exactly the opposite conclusion. The Ibbotsons, predecessors in title to the defendant, did plant an arborvitae hedgerow between 1966 and 1970 to the west of the record property line, creating what is now the eastern boarder of the Disputed Area. Since the planting of the hedgerow, the Pimentals used the land east of it by grading the land, installing a sewer trap, planting grass, mowing and maintaining the lawn thereon, building a shed and planting various decorative and ornamental trees. No inference of permissive use can be made from the fact that the initial placement of the hedgerow appears to be inadvertent. See Kendall v. Selvaggio, 413 Mass. at 623 (mutual mistake as to location of a boundary line will not defeat a claim of adverse possession); Boutin v. Perreault, 343 Mass. 329 (1961) (acquiescence to possessors use due to misunderstanding as to the true location of the boundary line did not amount to license or permission). Furthermore, the erection of a structure upon the land, the garden shed, tends to support an inference of adverse intent. See Poignard v. Smith, 6 Pick. 172 (1828) (disseisin evident where possessor constructed several buildings on demandants land); The Boston Mill co. v. Bulfinch, 6 Tyng. 229 (1810) (construction of buildings an open and visible occupation constituting a disseisin). Moreover, the fact that the defendants installed a chain link fence along the record boundary in 2010 after having the property surveyed, over protests of the plaintiffs, is (a) indicative of the defendants prior ignorance of the true property line and (b) compatible with an inference of non-permissive use.
The requirement that the use be open and notorious is to place the true owner "on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action." Ottavia v. Savarese, 338 Mass. at 333. "To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious." Foot v. Bauman, 333 Mass. 214 , 218 (1955).
In the present matter, the facts which lead this court to conclude that the use was actual, lead to a conclusion that the use of the Disputed Area was open and notorious. The acts which established dominion and control over the Disputed Area, i.e. mowing and maintaining the lawn, re-grading the land and planting it to lawn, constructing a boundary fence, building a large garden shed and planting ornamental trees, are all acts which would be observable to the true owner if he maintained a reasonable degree of supervision over his premises. No attempt at concealment was made by the Pimentals, nor are the actions so described amenable to concealment. Due to the close proximity of these suburban homes, and the nature and the extent of the Pimentals activities on the Disputed Area, it is unlikely that they escaped the notice of the Ibbotsons or later record owners. [Note 38] Consequently, this court readily concludes that the use was open and notorious.
Moreover, the same evidence which leads to a finding of actual use, and open and notorious occupation, supports a conclusion that the use was continuous. While acts of possession which are "few, intermittent or equivocal" will not suffice to prevail upon an adverse possession claim, Parker v. Parker, 1 Allen 245 , 247 (1861), the above described actions taken by the plaintiffs with regard to the subject property, extend, continuously, throughout a minimum twenty-year period. There is no evidence on the record to suggest that the Pimentals use was other than continuous. As such, this court finds and rules that the plaintiffs use and occupation of the Disputed Area was continuous.
Exclusivity or exclusive use, must encompass a disseisin of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them. Peck v. Bigelow, 34 Mass. App. Ct. at 557 (internal citations omitted). "The actual use and enjoyment of the property as the average owner of similar property would use and enjoy it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership, establishes adverse possession in the absence of evidence that his possession is under a license or tenancy." Shaw v. Solari, 8 Mass. App. Ct. at 156, 157, citing 3 Am. Law of Property §15.3, at 765-766 (1974).
In the present case, there is no evidence of use/ by the record owner, of the Disputed Area from the planting of the arborvitae hedgerow between 1966 and 1970, and July 28, 2010, when the defendants installed a chain link fence on the record boundary. By all accounts, the Pimentals were solely responsible for lawn and yard maintenance in the Disputed Area. They enjoyed ordinary activities associated with ownership on the parcel, such as cookouts with their invitees and summer parties. They planted a matching row of arborvitae across the Disputed Area, connecting the hedgerow planted by the Ibbotsons and the Pimentals house, demarcating the boundary between the front and back yards. As such, the location of the Pimentals hedgerow evinces an intent to exclude others from the back yard and the remainder of the Disputed Area. Furthermore, David and Maria Pimental state in their affidavits that: At no time during my ownership of the property and the Disputed Area has anyone interfered with my use of the Disputed Area. The record supports this assertion. This court is satisfied, therefore, that the Pimentals possession of the Disputed Area was exclusive.
Lastly, there is the matter concerning the requisite statutory period. General Laws, c. 260, §21 sets forth the statute of limitations in an action for the recovery of land [which] shall be commenced . . . within twenty years after the right of action . . . accrued . .. . [Note 39] The theory is that there has been a disseisin by an adverse possessor, and that consequently an owner must bring an action to recover the land within twenty years. [Note 40]
Thus, the plaintiffs must demonstrate that their adverse possession of the Locus has spanned twenty years or more. Here, that requisite has been amply satisfied. The Pimentals have supplied evidence showing that since the planting of the arborvitae hedgerow by the Ibbotsons in September of 1970, at the latest, they, the Pimentals, have nonpermissively made use of the Disputed Area in a manner which was actual, open, notorious, exclusive and adverse to the interests of the true owners. The statutory period, during which the true owner must enter the land and assert title, had expired by September of 1990. Thus, the fact that the defendants installed a chain link fence along the record boundary in July of 2010 and asserted their claim to title does not disrupt the exclusivity of possession. Moreover, by the time Charles and Melda Medro had purchased 439 Russells Mills Road in 1997, and later, in 2011 when Lepores remainder became an estate in fee simple, it was readily apparent that the Pimentals use of the Disputed Area ran contrary to the defendants ownership thereof. Shaw v. Solari, 8 Mass. App. Ct. at 156.
For the foregoing reasons, this court is satisfied that the plaintiffs have met their burden as to every element of their adverse possession claim. This court concludes, therefore, that the Pimentals have acquired title in fee simple to the Disputed Area predicated upon a successful showing of adverse possession.
Having so found and ruled that the Pimentals have established title to the Disputed Area, the court now turns to the remaining issues raised in the plaintiffs motion for summary judgment. At the outset, there is the matter of an alleged trespass to land by the defendant and her agents on July 28, 2010 when they entered the Disputed Area and constructed a chain link fence along the record boundary. Pursuant to G.L. c. 185, §1 (o), the Land Court jurisdiction over civil actions of trespass is limited to actions involving title to real estate At the heart of an action for trespass to real property is that the defendant intentionally entered the land of another, without privilege to do so, regardless of any harm caused to the land. Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988). In a successful action for trespass, the plaintiff must show actual possession or a right to possess the real property in question. New England Box Co. v. C&R Construction Co., 313 Mass. 696 , 707 (1943).
The tort will be actionable even where the trespasser is ignorant that his invasion violates the title or right of possession of the plaintiff. United Electric Light Co. v. Deliso Const. Co., 315 Mass. 313 , 318 (1943). An ongoing invasion of the plaintiffs land without legal right may constitute a continuing trespass, and an "intentional and continuing trespass to real estate may be enjoined.... Damages are usually inadequate because the plaintiff is not to be compelled to part with his property for a sum of money." Chesarone v. Pinewood Builders, Inc., 345 Mass. 236 , 240 (1962); See also Massachusetts Practice, Summary of Basic Law, c.14 §17.24.
While the Pimentals may have made out a case sounding in trespass, in that the events of July, 28, 2010 are undisputed, the court is not convinced that under this set of facts- i.e. adverse possessor versus the true owner- trespass will lie. See Massachusetts Practice, Summary of Basic Law, c.14 §17.24 ([e]ven one who is wrongfully occupying land may bring an action for trespass against any person except the real owner ); New England Box Co. v. C&R Construction Co., 313 Mass. at 707; Nickerson v. Thacher, 146 Mass. 609 (1888). Moreover, even if trespass were to lie under the facts pertaining herein, the court is not inclined to award damages in this situation. Notwithstanding, this court is of the opinion that certain equitable relief is appropriate.
The Pimentals seek equitable relief in the form of a Permanent Injunction against the defendant Lepore, prohibiting her from entering upon the Disputed Area, and a judgment ordering the defendant to remove the chain link fence and restore the land to its pre-July 28, 2010 condition. A permanent, prohibitory injunction may issue when there are trespasses which are continuing. Boston and Maine Railroad v. Sullivan, 177 Mass. 230 , 237 (1900). A mandatory injunction requiring restoration of the estate to its prior condition will be the appropriate remedy when injurious improvements have already been made to the real property at issue. Lynch v. Union Institution for Savings, 159 Mass. 306 , 308 (1893). The facts of this case support the issuance of relief in the form of a mandatory injunction, but do not support the issuance of a prohibitory injunction.
The defendants Lepore and Medro mortgaged 439 Russells Mills Road to defendant Sovereign Bank [Note 41] on September 9, 2009 in the form of a home equity loan in the amount of $50,000. [Note 42] The entirety of the record property was mortgaged, including, purportedly, the Disputed Area. The Pimentals have requested that the court, through its powers of equity, partially release the mortgage as to the Disputed Area.
A partial release of a mortgage is unnecessary, however, in the instance where the mortgagors did not own the property in question. It is undisputed that, and this court has held that, the Pimentals have acquired title to the Disputed Area in fee simple through adverse possession, the statutory period beginning as it did, at its latest point, in September of 1970, when the Ibbotsons planted the arborvitae hedgerow. Thus, the statutory period, [Note 43] during which the true owner must demand the return of the premises, terminated in September of 1990, some nineteen years prior to the mortgage, which purportedly included the Disputed Area. If a disseisin has continued for the full statutory period, not only is any right of entry barred but by the operation of the statute of limitations the time within which a real action must be brought has passed and the estate has vested in the disseisor as effectually as if originally conveyed to him. Daley v. Dailey, 300 Mass. 17 , 21 (1937); First Baptist Church of Sharon v. Harper, 191 Mass. 196 , 208 (1906); See also Daley v. Dailey, 308 Mass. 293 , 298, 305 (1941); Patton and Palomar on Land Titles §226 at 542 (3d ed. 2003). Therefore, title to the Disputed Area had sufficiently vested in the Pimentals in September of 1990. Accordingly, the Disputed Area was not a part of the premises mortgaged by Medro and Lepore in 2009.
In view of the forgoing, it is hereby
ORDERED that the plaintiffs motion for summary judgment be, and hereby is,
ALLOWED to the extent specified herein.
Judgment to issue accordingly.
[Note 1] Plaintiffs filed an Amended Verified Complaint as of right under Mass. R. Civ. P. 15 on August 17, 2010.
[Note 2] See Plaintiffs Motion for Summary Judgment Exhibit L December 15, 2010 Plan of Land located at 437 & 439 Russells Mills Road, prepared for David and Maria Pimental by Kenneth R. Ferreira Engineering, Inc. This plan of land displays the Disputed Area as a cross hatched area.
[Note 3] The plaintiffs requests were unopposed.
[Note 4] The Answer was filed June 16, 2011.
[Note 5] The defendants attorney did not appear, advising the court of automobile difficulty.
[Note 6] Plaintiffs Motion for Summary Judgment Exhibit A, Bristol County Registry of Deeds Book 1533, Page 485.
[Note 7] David Pimental Affidavit in Support of Summary Judgment; Maria Pimental Affidavit in Support of Summary Judgment.
[Note 8] Plaintiffs Motion for Summary Judgment Exhibit B, Bristol County Registry of Deeds Book 1508, Page 130.
[Note 9] David Pimental Affidavit in Support of Summary Judgment; Maria Pimental Affidavit in Support of Summary Judgment.
[Note 10] David Pimental Affidavit in Support of Summary Judgment; Maria Pimental Affidavit in Support of Summary Judgment.
[Note 11] The difference of grade between the Ibbotsons yard to the west of the arborvitae and the Pimentals yard to east of the hedgerow is evident in a 1972 photo. See Affidavit of David Pimental, Exhibit D, 1972 Photo of the Backyard and the Disputed Area.
[Note 12] Plaintiffs Motion for Summary Judgment Exhibit L December 15, 2010 Plan of Land located at 437 & 439 Russells Mills Road, prepared for David and Maria Pimental by Kenneth R. Ferreira Engineering, Inc.
[Note 13] See Plaintiffs Motion for Summary Judgment Exhibit L December 15, 2010 Plan of Land located at 437 & 439 Russells Mills Road. The Disputed Area, as laid out by the 2010 Plan, is denoted as a cross hatched area.
[Note 14] Affidavit of David Pimental; Affidavit of Maria Pimental; Affidavit of Antonio Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Edward V. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Nancy M. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Iberia Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Charlene Bentley in Support of Plaintiffs Motion for Summary Judgment; Affidavit of John Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Bonnie Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of David Pimental, Exhibit C, 1971 Photo of the Backyard and the Disputed Area. The 1971 photo shows in the foreground the three young Pimental children, the family dog and Maria Pimental in and around a wading pool behind the Pimental residence. In the background of the photo is a clear view of land east of the arborvitae hedgerow. It shows an immature hedgerow, the height of which is lower than the first floor widows of the Ibbotsons house, and it further shows a neatly maintained yard to the east of the hedgerow which matches the remainder of the Pimentals lawn. Affidavit of David Pimental Exhibit D 1972 Photo of the Backyard and the Disputed Area. This photo shows several people in the foreground around a wading pool and in the background, provides a clear view of the northern half of the arborvitae hedgerow. The hedgerow continues to the rear property line and the land to the east of it is neatly maintained and mowed with continuity to the Pimentals yard.
[Note 15] Affidavit of David Pimental; Affidavit of Maria Pimental.
[Note 16] It took 35 yards of sand and loam to grade the back yard. Affidavit of Maria Pimental.
[Note 17] Affidavit of David Pimental; Affidavit of Maria Pimental; See also Affidavit of David Pimental Exhibits H, I, J, K, L, July 28, 2010 Photos of Disputed Area. These photos show mature versions of the Spruce, Dogwood and other ornamental trees.
[Note 18] The July 28, 2010 photographs show blue hydrangeas in bloom in the flower garden. Affidavit of David Pimental Exhibits E, G July 28, 2010 Photos of Disputed Area.
[Note 19] Affidavit of David Pimental; Affidavit of Maria Pimental; Plaintiffs Motion for Summary Judgment Exhibit L December 15, 2010 Plan of Land located at 437 & 439 Russells Mills Road, prepared for David and Maria Pimental by Kenneth R. Ferreira Engineering, Inc. See also Affidavit of David Pimental Exhibits E, F, G July 28, 2010 Photos of Disputed Area. These photos show the fence posts from the vinyl fence and flower garden planted on the east side thereof.
[Note 20] Affidavit of David Pimental; Affidavit of Maria Pimental; Affidavit of Antonio Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Edward V. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Nancy M. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Iberia Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Charlene Bentley in Support of Plaintiffs Motion for Summary Judgment; Affidavit of John Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Bonnie Furtado in Support of Plaintiffs Motion for Summary Judgment.
[Note 21] Affidavit of David Pimental Exhibit H July 28, 2010 Photos of Disputed Area.
[Note 22] Affidavit of Maria Pimental.
[Note 23] Affidavit of David Pimental.
[Note 24] Affidavit of Antonio Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Edward V. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Nancy M. Pimental in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Iberia Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of John Furtado in Support of Plaintiffs Motion for Summary Judgment; Affidavit of Bonnie Furtado in Support of Plaintiffs Motion for Summary Judgment.
[Note 25] Affidavit of Maria Pimental.
[Note 26] Affidavit of Maria Pimental.
[Note 27] Plaintiffs Motion for Summary Judgment Exhibit C Robert and Agnes Ibbotson Death Certificates.
[Note 28] Plaintiffs Motion for Summary Judgment Exhibit C Robert and Agnes Ibbotson Death Certificates.
[Note 29] Plaintiffs Motion for Summary Judgment Exhibit D Deed dated November 17, 1992 creating life estate in Agnes Ibbotson with the remainder to Peter Norton.
[Note 30] By deed dated June 2, 1994. See Plaintiffs Motion for Summary Judgment Exhibit E Deed from Norton to Silva Book 3312 Page 155.
[Note 31] Plaintiffs Motion for Summary Judgment Exhibit F Deed dated October 23, 1997 Book 3971, Page 172.
[Note 32] Plaintiffs Motion for Summary Judgment Exhibit G Charles Medro Death Certificate.
[Note 33] Plaintiffs Motion for Summary Judgment Exhibit H, Deed dated July 10, 2007 Book 8713, Page 339.
[Note 34] Plaintiffs Motion for Summary Judgment Exhibit I Mortgage dated September 9, 2009 Book 9510, Page 1.
[Note 35] Affidavit of David Pimental Exhibit G-L July 28, 2010 Photos of Disputed Area. The photos show the arborvitae hedgerow as it existed on July 28, 2010. The hedgerow is quite full, Exhibit G, and is significantly taller than the home at 439 Russells Mills Road. See Exhibit H, and compare the height of the hedgerow with Exhibits C and D, which show the hedgerow in 1971 and 1972, respectively. In the 29 years between the dates photographs were taken, the arborvitaes have approximately quadrupled in height, supporting the strong inference (and corroborates relevant affidavits) that, the hedgerow has existed in its present location, without interruption, since it was planted in the late 1960s or 1970.
[Note 36] Plaintiffs Motion for Summary Judgment Exhibit K, 9/23/09 Sketch Plan of 439 Russells Mills Road.
[Note 37] Six of the vinyl fence posts were removed on April 7, 2011, precipitating an action for contempt filed May 9, 2011.
[Note 38] Of course, actual notice is not necessary. Foot v. Bauman, 333 Mass. at 218. Here, the inference of the Ibbotsons knowledge is merely illustrative of the fact that the Pimentals use was open and notorious. See Matthys v. First Swedish Baptist Church of Boston, 223 Mass. 544 (1916) (encroaching overhang of church roof was of such a kind and so open that the owner of the servient estate must have known of it).
[Note 39] G.L. c. 260 §21: An action for the recovery of land shall be commenced, or an entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant or the person making the entry, or those under whom they claim, have been seized or possessed of the premises; provided, however, that this section shall not bar an action by or on behalf of a nonprofit land conservation corporation or trust for the recovery of land or interests in land held for conservation, parks, recreation, water protection or wildlife protection purposes.
[Note 40] Mass. Practice Series, Real Estate Law, v. 28, c. 27, § 27.1.
[Note 41] Defaulted pursuant to Mass. R. Civ. P. 55(a) on October 1, 2010.
[Note 42] Plaintiffs Motion for Summary Judgment Exhibit I Mortgage dated September 9, 2009 Book 9510, Page 1.
[Note 43] See G.L. 260, s. 21.