Heard: January 11, 2019.
action commenced in the Superior Court Department on June 15,
case was heard by Thomas P. Billings, J.
Jeffrey P. Allen (Katharin M. Unke Smith also present) for
Leonard M. Davidson for the plaintiffs.
Present: Massing, Desmond, & McDonough, JJ.
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.
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. 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.
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 over a twenty-year
period prior to or ending in June 2016. See G. L. c. 260,
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.
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
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. The mowed area included the disputed
triangle, inside of the line ...