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Miller v. Abramson

Appeals Court of Massachusetts, Middlesex

August 29, 2019

GARY MILLER & another [1]

          Heard: January 11, 2019.

         Civil action commenced in the Superior Court Department on June 15, 2016.

         The case was heard by Thomas P. Billings, J.

          Jeffrey P. Allen (Katharin M. Unke Smith also present) for the defendants.

          Leonard M. Davidson for the plaintiffs.

          Present: Massing, Desmond, & McDonough, JJ.

          MCDONOUGH, J.

         The defendants, Christoffer and Cheryl Marie Abramson, appeal from a judgment declaring that the plaintiffs, Arlene and Gary Miller, acquired by adverse possession a thin slice of the Abramsons' land situated just across the parties' shared lot line. The Abramsons argue that the Millers' only open and adverse use of the disputed area occurring continuously for the required time period amounts to nothing more than basic suburban landscaping -- mowing, fertilizing, and occasional trimming of trees and shrubs. The Abramsons claim that under Massachusetts law, this sort of yard work is simply not enough to satisfy the elements of adverse possession. We disagree and affirm.


         The facts we recite are taken from the judge's findings, made after a jury-waived trial, and are supplemented by uncontroverted evidence in the record.[3] The plaintiff Millers live in a single-family home at 11 Fellsmere Road in Newton, on a corner lot at the intersection with Ward Street. The defendant Abramsons live at 211 Ward Street in Newton. Fellsmere Road dead-ends onto Ward Street. As shown in the plan of land we include as an appendix to this opinion, the back of the Millers' property directly abuts one side line of the Abramsons' lot. The parties' shared lot line is straight, running from Ward Street to the back of the Abramsons' property. The area disputed by the parties forms a thin triangle, about 492 square feet in size, the base of which is along the Abramsons' back lot line and one side of which is along the parties' shared lot line.

         The Millers' use and occupation of the disputed land was interrupted for purposes of adverse possession by June 15, 2016, when the Millers filed this action, in which the Abramsons counterclaimed. See Pugatch v. Stoloff, 41 Mass.App.Ct. 536, 542 n.8 (1996) (complaint to establish title immediately interrupts adverse possession). Accordingly, the Millers' goal at the parties' jury-waived trial was to prove their continuous use and occupation of the disputed area[4] over a twenty-year period prior to or ending in June 2016.[5] See G. L. c. 260, § 21.

         The Millers purchased their home in 1986 and moved in the following year. At the time they moved in, there was a line of shrubs and small trees along one edge of the disputed triangle, shown as a dashed line in the appendix (i.e., along the side of the triangle closest to the Abramsons' house; not along the shared boundary). This line of vegetation extended along the edge of the disputed area in a straight line from the Abramsons' back boundary to the apex of the triangle, where it jogged slightly, then followed the parties' shared lot line the rest of the way to Ward Street. The line of vegetation "formed a natural boundary between one yard and the next." Until November 2015, when the Abramsons complained to the Millers that they were encroaching on the Abramsons' land, the Millers assumed this line of shrubbery represented the legal boundary between the two lots.

         At the time of trial in October 2017, the assortment of vegetation found between the two homes showed signs of having being pruned on the Millers' side. The shrubs and trees were also substantially larger and denser than when the Millers moved in. Between 1987 and the trial date, some of the plants had died and some had been replaced, but most had grown to be taller than an adult person -- with some trees or shrubs reaching as high as the second story of the Millers' house, and one reaching the peak of the building.[6]

         In 1987, when they first moved in, the Millers retained Santangelo Landscaping (Santangelo) to care for their lawn and plantings and to remove leaves. Beginning in that year and in each year thereafter, a three-person crew from Santangelo performed yard work at the Millers' property every week from April 1 through November 1 -- and in some years even later, depending on when the leaves fell. From 1987 through the present, a Santangelo crew mowed the lawn, following a spiral course starting from the perimeters and working inward.[7] The mowed area included the disputed triangle, inside of the line ...

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