Opinion
14-P-1715
03-31-2016
LAWRENCE OWENS, trustee, & another v. RICHARD BUCCHERI & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, a judge of the Land Court determined that the plaintiffs, Lawrence and Patricia Owens, trustees of the LAMO 2010 Realty Trust (collectively, the Owens), established adverse possession of a disputed area to which the defendants held record title. Although the defendants did enter onto the disputed area to excavate, cutting down trees and a fieldstone retaining wall in the process, the judge declined to impose liability on the record title holders for trespass on land to which they held title. On appeal, the Owens claim the judge erred in denying their trespass, trespass to trees, nuisance, and individual liability claims.
The Owens argue that the judge improperly denied their trespass and related claims because they adversely possessed the disputed area, and could therefore maintain a trespass action against even the record title owner. We agree. Although the Owens only first asserted their ownership of the disputed area in 2008, they successfully established adverse possession of the land many years prior to the defendants' entry. "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). Here, the Owens met their burden of demonstrating these elements in the disputed area for the statutory period.
Although all the defendants initially cross-appealed from the finding of adverse possession, at the time of oral argument, the Chu defendants had dismissed their cross appeal with prejudice and stipulated to the Owens' claim for adverse possession. The dismissal did not impact either the Owens' claims of trespass, trespass to trees, nuisance, or for personal liability, or the Buccheri defendants' response in refuting them.
The judge credited Mr. Owens's testimony that he told Richard Buccheri that his wife "would like [the fieldstone wall in the disputed area] to remain there because she loves that wall." Mrs. Owens testified that she did not object to the leveling of the land until after the defendants had done so.
Although the adverse possession claim itself is no longer at issue on appeal, the defendants who did not stipulate to the Owens' adverse possession claim remain entitled to assert the Owens' failure to establish adverse possession in defense of the trespass and related claims against them.
The Owens established their actual use of the land by using and enjoying the property as an average owner would use it. See Ottavia v. Savarese, 338 Mass. 330, 333 (1959). The judge found that after acquiring the property in 1969, the Owens family made use of the disputed property by mowing the lawn, maintaining ivy, pruning branches, picking flowers and blueberries, allowing their young children to play in the area, and installing swing sets for the children as well. Furthermore, he found that the Owens used a lean-to in the disputed area for storage and later as a car port. The Owens' evidence of their use of the land sufficiently demonstrated not only that they actually used the land as a typical owner would, but also that such usage was both open and notorious as they engaged in activities the record owner could readily observe, including the activities listed, as well as the Owens' alterations to the lean-to in 2003, all of which would reasonably alert a record owner to an adverse possessor's possession and occupation. See Sea Pines Condominium III Assn. v. Steffens, 61 Mass. App. Ct. 838, 848-849 (2004). The Owens also established their exclusive use and possession of the property "to the extent that the owner would have excluded them," as the judge did not credit the defendants' predecessor's testimony that she pruned branches and picked up garbage in the disputed area on a regular basis. Peck v. Bigelow, 34 Mass. App. Ct. 551, 557 (1993).
In support of the hostile and continuous elements of their adverse possession claim, however, the Owens relied on and the judge credited the testimony of Janice Pike Westberg, who testified specifically to her and her now-deceased parents' nonpermissive and continuous activities conducted in the disputed area during her youth. Because Westberg was only one year old when her parents took title and the continuing and nonpermissive use of the disputed area allegedly began, her recollections and testimony contained numerous assumptions regarding the nature of her and her parents' use of the land. Although the judge erroneously tacked on the Pikes' ownership to the Owens' use, he did so unnecessarily, as the Owens' period of adverse possession began sometime in 1969. By the time the defendants asserted their record title to justify cutting the trees on the disputed land in 2008, the Owens had met the twenty-year statutory requirements for adverse possession even without the assistance of tacking on from their predecessors.
Although the defendants' predecessors, Mary St. Pierre and Richard Barrett, testified that they had given the Owens permission to use the disputed area in 1986, which would have prevented the Owens from establishing the continuous and hostile nature of their adverse possession claim, the judge explicitly afforded no credit to their testimony, citing it as "highly tentative" and "unreliable." Nothing in the record suggests that the judge erred in this finding. See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).
As the owners of the disputed area by adverse possession, the Owens are therefore entitled to bring their trespass and trespass to trees claims against the defendants. Once the statutory period for adverse possession runs, the adverse possessor, here the Owens, becomes the lawful, actual possessor and the new "real owner" entitled to bring a claim against even the record title owners. See New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943), quoting from Perry v. Weeks, 137 Mass. 584, 587 (1884) ("A person in the actual occupation of land may maintain trespass against any person except the real owner, or the person having a right of possession"). Despite the defendants' argument that they had insufficient notice of the Owens' claims and the judge's hesitation to allow a trespass claim against the record title owner, the Owens' actual, open, and notorious use of the land would or should have put any observer, including the record title owner, on notice of the adverse possession and the possessor's accompanying rights. See Kendall v. Selvaggio, 413 Mass. 619, 624 (1992). Once their adverse rights matured, the Owens were effectively the real and actual owners of the disputed area. The defendants therefore no longer retained their right to lawfully enter onto or disturb the disputed area. Accordingly, the Owens properly brought their trespass and trespass to trees claims. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 544 (1996) (holding for defendant in adverse possession claim and ordering further proceedings to determine proper remedy owed by record title owner in defendant's trespass claim).
The Owens also appealed the denial of their nuisance claim. Because the Land Court lacked subject matter jurisdiction to consider this claim, we decline to address it further here. Although the Land Court has jurisdiction to award damages on a tort-based theory, it may only do so where the claim is "ancillary to claims related to any right, title, or interest in land." Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008). In this instance, the Owens allege in their nuisance claim that the defendants created "huge mounds of earth" along their shared property line and that "dust and debris and mud blew and flowed across the disputed property line onto the Owens' property." Because the alleged nuisance has no bearing on the underlying adverse possession or trespass claims, the Land Court lacked jurisdiction to hear that claim, which does not concern any right, title, or interest in the land.
The defendants maintain that the Owens are barred from bringing their adverse possession and related trespass claims by laches. As the record does not suggest that the Owens delayed in asserting their claims against the defendants, we disagree. First, the doctrine of adverse possession does not require that the Owens proactively seek out a judicial determination that their adverse possession claim has ripened. In fact, it is the adverse possessor, not the record title owner, who would assert an alternative laches defense to prevent the record title owner from claiming ownership to a disputed area after neglecting to assert ownership or bring a trespass claim against the adverse possessor within a reasonable or statutory time period. See Lawrence v. Concord, 439 Mass. 416, 424-425 (2003) ("The statute of limitations to recover possession of land runs against the true owner after twenty years if the adverse possessor satisfies the elements of adverse possession . . . thereby giving notice to the world of his possession"). The Owens did not delay in asserting their trespass claims and began pursuing them shortly after the defendants excavated the disputed area.
Although the judge found that the Owens lodged only a mild objection to the defendants' trespass in clearing the disputed area, the defendants had sufficient notice of the Owens' claim and right to the area by adverse possession. See Lawrence v. Concord, 439 Mass. at 423 ("Adverse possession as a doctrine assumes that the adverse possessor may be acting with the hope and even the intent to conceal that he has no valid interest in the property").
Other jurisdictions are in accord with the view that an adverse possessor may bring an action against the record title owner, asserting an adverse possession and simultaneously seeking damages for the record owner's trespass onto the adversely possessed land. See Spring Valley Estates, Inc. v. Cunningham, 181 Colo. 435 (1973); Wood v. Bell, 902 A.2d 843 (Me. 2006).
Because the judge dismissed the trespass and trespass to trees claims against the defendants, we remand for further proceedings consistent with this memorandum and order to determine liability and what, if any, damages are appropriate.
Because we remand the trespass and trespass to trees claims for further consideration, we are not prepared to determine Richard Buccheri's personal liability for any of the Owens' alleged damages.
The portion of the judgment concluding that the plaintiffs established adverse possession to the disputed area is affirmed. The portion of the judgment denying the plaintiffs' entitlement to damages on their nuisance claim is also affirmed. The rest of the judgment is vacated and the matter is remanded for further proceedings on the plaintiffs' trespass and trespass to trees claims.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.