Heard: October 2, 2019.
action commenced in the Superior Court Department on December
case was heard by Mary K. Ames, J.
D. McKenzie (Fahelle Bonheur also present) for the defendant.
N. Decoulos for the plaintiff.
Present: Wolohojian, Blake, & Englander, JJ.
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.
case involves two properties on Harvard Street in the
Mattapan section of Boston. The plaintiff, Lula Johnson,
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.
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.
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.
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. The plaintiffs went forward to trial only
on their nuisance claim. 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." The defendant appeals.