Opinion
21-P-619
04-13-2022
David R. GEIGER v. NEEDHAM MILLER, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This adverse possession case arises from a boundary dispute between the plaintiff, David R. Geiger, and the defendant, Needham Miller, LLC. The plaintiff, owner of 22 Tanglewood Road, filed a verified complaint in July 2020 seeking a declaration that he had acquired a small strip of land at the edge of 16 Tanglewood Road through adverse possession. A judge granted summary judgment for the defendant, owner of 16 Tanglewood Road, on the grounds that the plaintiff could not establish an open, adverse, and exclusive use of the disputed area. For the reasons that follow, we vacate the judgment and remand for further proceedings.
Background. The plaintiff has resided at 22 Tanglewood Road since March 1990. The abutting property, 16 Tanglewood, was owned by Stewart and Alice Ward until 2019 when it was purchased by the defendant. Prior to this litigation, a vegetative barrier of trees and shrubs stood between the front edge of these two otherwise manicured properties. The plaintiff contends that he and his agents have been the sole users and maintainers of the land between the barrier and his recorded property line, including approximately 270 square feet of the defendant's recorded property (the disputed area), for nearly thirty years. This maintenance consisted of mowing, applying fertilizer, planting grass seeds, removing fallen leaves and branches, and laying mulch right up to the edge of the barrier. By contrast, the defendant argues that the Wards’ landscapers, Petrucci Landscaping, accessed the disputed area to mow the lawn and remove fallen leaves up to what they were told was the Wards’ recorded property line.
The plaintiff contends that the disputed area in fact exceeds 327 square feet.
After a surveyor's stake was placed at the edge of the disputed area, the plaintiff filed a verified complaint claiming title to the disputed area by adverse possession. He also filed a motion for a preliminary injunction to stop the defendants from uprooting the vegetative barrier and a motion for approval of a memorandum of lis pendens based on his own drawing of the land. Although a judge of the Land Court denied the requested preliminary injunction, she did allow the motion for approval of a memorandum of lis pendens, limited to the disputed area depicted in the plaintiff's drawing. The judge later allowed the defendant to substitute the plaintiff's drawing with a survey of the land and denied the plaintiff's motion to correct the survey for inaccuracies. The defendant filed a motion for summary judgment, which was granted, and the plaintiff now appeals.
Discussion. 1. Standard of review. "We review a grant of summary judgment de novo." Jenkins v. Bakst, 95 Mass. App. Ct. 654, 657 (2019), quoting Merrimack College v. KPMG LLP, 480 Mass. 614, 619 (2018). Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
2. Adverse possession. The plaintiff argues that the judge erred in concluding that the evidence would not support a finding of open, adverse, and exclusive use of the disputed area. "Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Concord, 439 Mass. 416, 421 (2003), quoting Kendall v. Selvaggio, 413 Mass. 619, 621-622 (1992). "Whether, in a particular case, these elements are sufficiently shown is essentially a question of fact ... because ‘[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.’ " Kershaw v. Zecchini, 342 Mass. 318, 320 (1961), quoting LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488, 490 (1938). See Shaw v. Solari, 8 Mass. App. Ct. 151, 156-157 (1979) (finding adverse possession established by "actual use and enjoyment of the property as the average owner of similar property would use and enjoy it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership").
This is not a case in which two neighboring properties seamlessly blended with no delineation. Rather, the dense vegetative barrier nestled between two manicured lawns, as depicted in photographs in the record, allowed for "easy identification of what land was being openly used and possessed," negating the necessity of a fence or other structure. Miller v. Abramson, 95 Mass. App. Ct. 828, 832 (2019). Given this framing of the plaintiff's front and side lawn, the plaintiff and his agents’ continuous acts of mowing, applying fertilizer, planting grass seeds, removing fallen leaves branches, and laying mulch were characteristic of the kinds of actions that would be consonant with, and expected from, a party claiming ownership to this particular disputed area. See Mancini v. Spagtacular, 95 Mass. App. Ct. 836, 843 (2019) ("Massachusetts jurisprudence does not establish a per se rule that mowing and yard maintenance can never be adequate to establish adverse possession"); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 904 (1993) (finding adverse possession where claimant's use "consisted of little more than maintenance of a suburban lawn"). It therefore cannot be said as a matter of law that these acts could not properly be the basis of a finding of open and adverse use.
Similarly, genuine issues of material fact remain regarding whether the plaintiff's use was exclusive. Exclusive use means exclusion "not only of that owner but of all third persons to the extent that the owner would have excluded them." Peck v. Bigelow, 34 Mass. App. Ct. 551, 557 (1993). The record suggests conflicting testimony regarding whether in fact the plaintiff was the sole caretaker of the disputed area or whether the Wards’ landscapers, Petrucci Landscaping, accessed and similarly maintained the disputed area. Therefore, because there remain material facts in dispute concerning the exclusivity of the land use, the defendant has not shown that it is entitled to judgment as matter of law, and dismissal of the plaintiff's claim was in error.
The plaintiff averred in an affidavit that he never witnessed anyone other than his own landscapers access the disputed area, nor any evidence of the land being maintained by others. Ray Arruda, foreman for Petrucci Landscaping, who consistently worked on the Wards’ property, testified at a deposition that he did not prune bushes, pick up debris, or place mulch on the plaintiff's side of the vegetative barrier. Stephen Petrucci, owner of Petrucci Landscaping, testified at a deposition that his crew would access the disputed area by walking between the vegetative barrier and trees to remove fallen leaves, prune the bushes, and cut the grass along the property line.
For the same reason, we reject the plaintiff's argument that summary judgment should have entered in his favor.
3. Lis pendens memorandum. The plaintiff additionally argues that the judge erred in allowing the substitution of the plaintiff's hand drawn survey of the disputed area with the defendant's professionally drawn survey. We discern no error in the judge's allowance of the substitution. For purposes of G. L. c. 184, § 15, the substituted survey properly identifies the real property that is the subject of this litigation and does not prevent the plaintiff from obtaining his own professionally drawn survey and requesting another substitution.
Conclusion. Accordingly, the judgment is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded