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Johnson v. Christ Apostle Church

Appeals Court of Massachusetts, Suffolk

December 11, 2019

LULA JOHNSON
v.
CHRIST APOSTLE CHURCH, MT. BETHEL

          Heard: October 2, 2019.

         Civil action commenced in the Superior Court Department on December 24, 2014.

         The case was heard by Mary K. Ames, J.

          Denzil D. McKenzie (Fahelle Bonheur also present) for the defendant.

          James N. Decoulos for the plaintiff.

          Present: Wolohojian, Blake, & Englander, JJ.

          ENGLANDER, J.

         In this nuisance action concerning a fence erected between the properties of two neighbors, the Superior Court judge found for the plaintiff after a bench trial, and ordered the defendant, Christ Apostle Church, Mt. Bethel (church), to alter its fence so that the plaintiff could "access. . . her property" from the church's property. Because the church's property is registered land, the Superior Court judge lacked jurisdiction to impose the remedy she ordered, which in essence granted the plaintiff an easement over the church's property. The Land Court has exclusive jurisdiction over claims that impose encumbrances on registered land. We accordingly vacate the order and judgment, and remand the case so that it may be transferred to the Land Court.

         Background.

         This case involves two properties on Harvard Street in the Mattapan section of Boston. The plaintiff, Lula Johnson, [1] has owned and lived at number 624 Harvard Street since 1971. The defendant church purchased the adjacent property, number 628 Harvard Street, in 1995. Prior to being owned by the defendant, 628 Harvard Street was owned by the Jehovah's Witness Church. Both 624 and 628 Harvard Street were originally part of the same subdivision and, importantly, both properties are registered land.

         The Johnsons and the neighboring church enjoyed an amicable relationship for many years. A driveway on the church's property is located near the Johnsons' property, and the Johnsons used and parked on that driveway for decades, with the permission first of the Jehovah's Witness Church, and then the defendant church. The Jehovah's Witness Church built a fence between the two properties at some point, but the fence was not directly on the property line, and because it had a gate, it did not impede the Johnsons' ability to use the church driveway to access their property along the side bordering the church.

         The relationship between the Johnsons and the church soured some time in 2013. This resulted in the church building a new fence, six feet high, directly on the property line. Prior to building it, the church received a permit to build the fence from the city of Boston. The new fence did not have a gate in it. Moreover, because the Johnsons' home was situated very close to the lot line on the side facing the church, the new fence made it practically impossible for the Johnsons to access that side of their home for maintenance purposes; indeed, in one place there are only thirteen inches of space between the fence and the Johnsons' home.

         The Johnsons filed suit in the Superior Court, alleging counts for negligence, "spite fence," and adverse possession. The remedy the Johnsons sought was abatement of the alleged nuisance, and for injunctive relief preventing the church from denying them "access" to their property.[2] The plaintiffs went forward to trial only on their nuisance claim.[3] After hearing multiple witnesses, the judge ruled that the new fence caused "a substantial and unreasonable interference with the use and enjoyment of the [plaintiff's] property," by "frustrating her ability to properly access and maintain" it. As a remedy, the judge entered a detailed order and judgment requiring the church to install a series of gates in the fence "to allow access by the [p]laintiff onto her property."[4] The defendant appeals.

         D ...


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